<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(Mark One)
(X) Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
or
( ) Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
FOR THE TRANSITION PERIOD FROM ________ TO _________
COMMISSION FILE NUMBER 1-9125
------------------------------
AMERICAN TECHNICAL CERAMICS CORP.
---------------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 11-2113382
- ------------------------------------ ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
17 STEPAR PLACE, HUNTINGTON STATION, NY 11746
- ---------------------------------------- ------
(Address of principal executive offices) (Zip Code)
516-547-5700
------------
(Telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
----- -----
As of April 18, 1997, the Registrant had outstanding 3,890,761 shares of
Common Stock, par value $.01 per share.
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, 1997 JUNE 30, 1996
-------------- -------------
ASSETS
(In thousands)
<S> <C> <C>
CURRENT ASSETS:
Cash (including cash equivalents of approximately
$1,397 and $1,082, respectively) $ 3,263 $ 2,661
Investments 2,047 887
Accounts receivable, net 4,708 4,913
Inventories 8,901 8,758
Deferred income taxes 738 738
Other current assets 525 641
-------- --------
Total current assets 20,182 18,598
-------- --------
Property, plant and equipment, net of
depreciation and amortization of $16,434
and $15,047, respectively 14,019 14,152
Other assets, net 334 308
-------- --------
$ 34,535 $ 33,058
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt $ 857 $ 841
Accounts payable 925 1,128
Accrued expenses 2,431 2,215
Income taxes payable 782 857
-------- --------
Total current liabilities 4,995 5,041
-------- --------
LONG-TERM DEBT 2,996 3,642
DEFERRED INCOME TAXES 1,269 1,283
-------- --------
Total liabilities 9,260 9,966
-------- --------
STOCKHOLDERS' EQUITY:
Common stock- par value $.01;authorized 20,000,000 shares;
issued 4,067,979 and 4,067,501 shares,respectively 41 41
Capital in excess of par value 6,521 6,439
Retained earnings 19,450 17,251
-------- --------
26,012 23,731
Unrealized (loss) gain on investments available for sale (19) 12
Less: Treasury stock, at cost; 178,218 and 183,518 shares,respectively 604 572
Foreign currency translation adjustment 114 79
-------- --------
Total stockholders' equity 25,275 23,092
-------- --------
$ 34,535 $ 33,058
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
-1-
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED FOR THE NINE MONTHS ENDED
MARCH 31, MARCH 31,
1997 1996 1997 1996
---- ---- ---- ----
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Net sales $ 9,541 $ 8,822 $ 26,467 $ 24,435
Cost of goods sold 5,688 5,699 16,801 16,555
-------- -------- -------- --------
Gross profit 3,853 3,123 9,666 7,880
-------- -------- -------- --------
Selling, general and administrative expenses 1,820 1,601 5,197 4,907
Research and development expenses 309 429 1,007 1,215
-------- -------- -------- --------
Operating expenses 2,129 2,030 6,204 6,122
-------- -------- -------- --------
Income from operations 1,724 1,093 3,462 1,758
-------- -------- -------- --------
Other expense (income):
Interest expense 91 108 289 328
Interest income (67) (27) (171) (147)
Other 1 1 6 (320)
-------- -------- -------- --------
25 82 124 (139)
-------- -------- -------- --------
Income before provision for income taxes 1,699 1,011 3,338 1,897
Provision for income taxes 552 372 1,139 654
-------- -------- -------- --------
Net income $ 1,147 $ 639 $ 2,199 $ 1,243
======== ======== ======== ========
Net income per common and common equivalent share $ 0.29 $ 0.16 $ 0.57 $ 0.32
======== ======== ======== ========
Weighted average common and common
equivalent shares outstanding 3,888 3,884 3,886 3,879
======== ======== ======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
-2-
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED MARCH 31,
1997 1996
---- ----
(IN THOUSANDS)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 2,199 $ 1,243
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 1,400 1,300
Loss on disposal of fixed assets 6 --
Stock award compensation expense 112 137
Gain on sale of investments -- (333)
Provison for doubtful accounts receivable and sales returns 30 --
Changes in operating assets and liabilities:
Accounts receivable, net 205 (835)
Inventories (119) (999)
Other assets (123) (147)
Accounts payable, and accrued expenses 4 (669)
Income taxes payable (9) 181
------- -------
Net cash provided by (used in) operating activities 3,705 (122)
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (1,255) (2,060)
Purchase of investments (1,206) --
Proceeds from sale of investments -- 3,224
Proceeds from sale of fixed assets 4 --
------- -------
Net cash (used in) provided by investing activities (2,457) 1,164
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of long-term debt (630) (620)
Payments to acquire treasury stock (64) --
Issuance of stock 3 --
------- -------
Net cash used in financing activities (691) (620)
------- -------
Effect of exchange rate changes on cash 45 (46)
------- -------
Net increase in cash and cash equivalents 602 376
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 2,661 1,813
------- -------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 3,263 $ 2,189
======= =======
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
-3-
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(1) PRINCIPLES OF CONSOLIDATION:
The accompanying unaudited interim financial statements reflect all
adjustments (consisting of normal recurring accruals) which are, in the
opinion of management, necessary for a fair presentation of its consolidated
financial position and results of operations as of and for the quarter and
nine months ended March 31, 1997 and 1996. These financial statements should
be read in conjunction with the summary of significant accounting policies and
notes to consolidated financial statements included in the Registrant's annual
report to stockholders for the year ended June 30, 1996. Results for the nine
months ended March 31, 1997 are not necessarily indicative of results which
could be expected for the entire year.
(2) INVENTORIES:
Inventories included in the accompanying consolidated financial
statements consist of the following:
March 31, June 30,
1997 1996
(in thousands)
------------ -----------
Raw materials $2,510 $1,642
Work-in-process 3,245 3,413
Finished goods 3,146 3,703
-------- --------
$8,901 $8,758
======== ========
(3) NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE:
Net income per common and common equivalent share has been computed
based upon the weighted average number of shares outstanding. Recognition has
been given to the assumed exercise, as of the beginning of each period or date
of issuance if later, of outstanding options except when their effect would be
antidilutive or immaterial.
- 4 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction
with the consolidated financial statements, related notes and other
information included in this Quarterly Report on Form 10-Q.
Statements in this Quarterly Report on Form 10-Q that are not
historical fact may constitute "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. All such
forward-looking statements are subject to risks and uncertainties, including,
but not limited to, the impact of competitive products, product demand and
market acceptance risks, fluctuations in operating results and delays in
development of highly complex products. These risks could cause the
Registrant's actual results for fiscal year 1997 and beyond to differ
materially from those expressed in any forward-looking statement made by the
Registrant.
RESULTS OF OPERATIONS
Three Months Ended March 31, 1997
Compared with Three Months Ended March 31, 1996
Net sales for the three months ended March 31, 1997 increased 8% to
$9,541,000 as compared to net sales of $8,822,000 for the comparable quarter
in the prior fiscal year. This increase was the result of modest sales
increases across most of the Registrant's product lines. The backlog of
unfilled orders was $7,618,000 at March 31, 1997 and $6,538,000 at June 30,
1996.
- 5 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS, continued
Gross margin for the three months ended March 31, 1997 was 40.4% of
net sales as compared to 35.4% for the comparable quarter in the prior fiscal
year. The higher gross margin in the current quarter was attributable both to
increased sales of higher margin products and the Registrant's continued focus
on manufacturing efficiencies and cost controls. Historically, sales of the
Registrant's higher margin products have not followed predictable sales
patterns. Accordingly, the contribution these products made to the increase in
gross margins for the quarter ended March 31, 1997 may not be sustained in
future periods. The Registrant continues to focus on improving manufacturing
operations, production efficiencies and cost controls, and these efforts
should moderate the negative effect of any shift in product mix on gross
margins.
Total operating expenses for the three months ended March 31, 1997
increased 5% to $2,129,000 as compared to $2,030,000 in the comparable period
in the prior fiscal year. The increase in operating expenses was attributable
to modestly higher salaries and wages in selling and general administration
and higher bonus expense incurred as a result of higher pretax profits. These
higher operating expenses were partially offset by lower stock compensation
expense for key executives and increased efficiencies related to other
operating expenditures.
Net interest expense amounted to $24,000 in the current quarter as
compared to net interest expense of $81,000 in the comparable quarter in the
prior fiscal year. The decrease in net interest expense was attributable to
higher interest income as a result of increased cash available for investment,
increased income from marketable securities and lower interest expense as a
result of lower average outstanding loan balances.
The effective income tax rate for the quarter ended March 31, 1997
was 32.5% of income before provision for income taxes as compared to 36.8% for
the comparable quarter in the prior fiscal year. The lower effective income
tax rate was the result of the availability of certain incremental tax
benefits in the current quarter, particularly for research and development and
foreign sales.
As a result of the foregoing, net income for the three months ended
March 31, 1997 was $1,147,000, or approximately $.29 per common and common
equivalent share, compared to net income of $639,000, or approximately $.16
per common and common equivalent share, for the comparable period in the prior
fiscal year.
- 6 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS, continued
Nine Months Ended March 31, 1997
Compared with Nine Months Ended March 31, 1996
Net sales for the nine months ended March 31, 1997 increased 8% to
$26,467,000 as compared to net sales of $24,435,000 for the comparable period
in the prior fiscal year. The increased sales were a result of higher sales of
all of the Registrant's products, with the most significant increases being in
sales of certain higher margin capacitor products and thin film products.
Gross margin for the nine months ended March 31, 1997 was 36.5% of
net sales as compared to 32.2% for the comparable period in the prior fiscal
year. The higher gross margin for the current period was the result of
improved production process performance and yields, the effects of various
cost reduction efforts undertaken in August 1996 and increased sales of
products carrying a higher gross margin.
Total operating expenses for the nine months ended March 31, 1997
increased 1% to $6,204,000 as compared to $6,122,000 in the comparable period
in the prior fiscal year. The slight increase in expenses was the result of
higher bonus expenses as a result of the higher pretax profit level achieved
in the current year period as compared to the prior year period and modestly
higher selling and administrative salaries partially offset by increased
efficiencies related to other operating expenditures.
Net interest expense amounted to $118,000 in the current period as
compared to net interest expense of $181,000 in the comparable period in the
prior fiscal year period. The decrease in net interest expense was
attributable to higher interest income as a result of increased cash available
for investment, increased income from marketable securities and lower interest
expense as a result of lower average outstanding loan balances.
Other expense amounted to $6,000 for the nine months ended March 31,
1997 as compared to other income of $320,000 in the comparable period in the
prior fiscal year which resulted primarily from realized gains on the sale of
certain investments.
- 7 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS, continued
The effective income tax rate for the nine months ended March 31,
1997 was 34.1% of income before provision as compared to 34.5% for the
comparable period in the prior fiscal year.
As a result of the foregoing, net income for the nine months ended
March 31, 1997 was $2,199,000, or approximately $.57 per common and common
equivalent share, compared to net income of $1,243,000, or approximately $.32
per common and common equivalent share, for the comparable period in the prior
fiscal year.
LIQUIDITY AND CAPITAL RESOURCES
The Registrant's financial position at March 31, 1997 remains strong
as evidenced by working capital of $15,187,000 and stockholders' equity of
$25,275,000. The Registrant's current ratio at March 31, 1997 was 4.0:1 as
compared to a current ratio of 3.7:1 at June 30, 1996. The Registrant's quick
ratio at March 31, 1997 was 2.3:1 as compared to a quick ratio of 2.0:1 at
June 30, 1996.
Cash and investments increased by $1,762,000 to $5,310,000 at March
31, 1997 from $3,548,000 at June 30, 1996. Accounts receivable decreased by
$205,000 to $4,708,000 at March 31, 1997 from $4,913,000 at June 30, 1996 as a
result of slightly stronger sales in the weeks preceding June 30, 1996 as
compared to the period preceding March 31, 1997. Inventories increased by
$143,000 to $8,901,000 at March 31, 1997 from $8,758,000 at June 30, 1996 as a
result of higher stocks of raw materials, in part offset by lower levels of
work-in-process and finished goods. Accounts payable and accrued expenses
increased by $13,000 to $3,356,000 at March 31, 1997 from $3,343,000 at June
30, 1996. While accounts payable decreased as a result of lower levels of
expenditures for operating and capital equipment purchases, other accrued
expenses increased as a result of higher pretax profit accruals for bonuses
for employees and key executives. Income taxes paid in the nine month period
ended March 31, 1997 were $1,214,000.
- 8 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES, continued
In September 1996, the Registrant secured a $2,000,000 revolving
line-of-credit from Barnett Bank of Jacksonville, N.A. ("Barnett"). The
line-of-credit is subject to certain fees on the unused portion while the
outstanding balance bears interest at a rate equal to Barnett's prime rate
minus one-half percent (1/2%). Borrowings under the line-of-credit are subject
to, among other things, continued compliance with certain financial covenants,
including maintenance of asset and liability percentage ratios. There is
currently no balance outstanding under this line-of-credit.
Capital expenditures for the nine months ended March 31, 1997
totaled $1,255,000 of which $1,078,000 was for machinery and equipment. The
Registrant intends to use cash on hand and funds generated from operations to
finance additional budgeted capital expenditures of approximately $700,000 in
fiscal year 1997, primarily for additions to and replacement of machinery and
equipment.
In June 1990, the Registrant announced a stock purchase program
pursuant to which it is authorized to purchase up to $1,000,000 of its Common
Stock. As of March 31, 1997, the Registrant has expended approximately
$805,000 to purchase an aggregate of 308,400 shares under this program.
- 9 -
<PAGE>
PART II - OTHER INFORMATION
ITEMS 1. THROUGH 5. Not Applicable
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
3(a)(i) - Certificate of Incorporation of the Registrant. (1)
3(a)(ii) - Amendment to Certificate of Incorporation. (6)
3(b)(i) - By-laws of the Registrant. (1)
9(a)(i) - Restated Shareholders' Agreement, dated April 15, 1985, among
Victor Insetta, Joseph Mezey, Joseph Colandrea and the
Registrant. (1)
10(b)(i) - Lease Agreement between Victor Insetta and the Registrant for
premises at 15 Stepar Place, Huntington Station, N.Y. (1)
10(b)(ii) - Amendment to Lease Agreement, dated May 8, 1984, but
effective as of July 14, 1981, between Victor Insetta, d/b/a
Stepar Leasing Company, and the Registrant. (1)
10(b)(iii) - Amendment to Lease Agreement, dated June 15, 1987, but
effective as of May 1, 1987, between Victor Insetta, d/b/a
Stepar Leasing Company, and the Registrant. (2)
10(b)(iv) - Amendment to Lease Agreement, dated February 9, 1989, between
Victor Insetta, d/b/a Stepar Leasing Company, and the
Registrant. (3)
10(b)(v) - Amendment to Lease Agreement, as of January 1, 1997,
between Victor Insetta, d/b/a Stepar Leasing Company, and
the Registrant.
10(c)(i) - 1985 Employee Stock Sale Agreement between the Registrant
and various employees. (1)
10(c)(ii) - Form of Employee Stock Bonus Agreement, dated as of
July 1, 1993, between the Registrant and various employees.
(5)
10(c)(iii) - Form of Employee Stock Bonus Agreement, dated as of
April 19, 1994, between the Registrant and various
employees. (5)
10(c)(iv) - Form of Employee Stock Bonus Agreement, dated as of
April 20, 1995, between the Registrant and various
employees. (6)
10(e) - Amendment and Restated Lease, effective as of July 1, 1996,
between V.P.I. Properties Associates, d/b/a V.P.I.
Properties Associates, Ltd., and American Technical Ceramics
(Florida), Inc.
10(f) - Purchase Agreement, dated May 31, 1989, by and among Diane
LaFond Insetta and/or Victor D. Insetta, as custodians for
Danielle and Jonathan Insetta, and American Technical
Ceramics Corp., and amendment thereto, dated July 31, 1989
(3).
10(g)(iii) - Profit Bonus Plan, dated April 19, 1995, and effective for
the fiscal years beginning July 1, 1994. (6)
10(g)(iv) - Employment Agreement, dated April 3, 1985, between Victor
Insetta and the Registrant, as amended. (4)
- 10 -
<PAGE>
10(h) - Loan Agreement, dated September 27, 1994, between the
Registrant and Barnett Bank of Jacksonville, N.A. (5)
10(i) - Secured Commercial Note, dated as of February 17, 1995,
between the Registrant and European American Bank. (6)
10(j) - Secured Commercial Note, dated as of February 17, 1995,
between the Registrant and European American Bank. (6)
10(k) - Letters of Agreement, dated June 26, 1996 and August 22,
1996, between the Registrant and Stuart P. Litt. (7)
10(l) - Loan Agreement, dated September 25, 1996, between the
Registrant and Barnett Bank, N.A. (8)
27 - Financial Data Schedule
- --------------------
1. Incorporated by reference to the Registrant's Registration Statement on
Form S-18.
2. Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1987.
3. Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1989.
4. Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1993.
5. Incorporated by reference to the Registrant's Annual Report on Form
10-KSB for the fiscal year ended June 30, 1994.
6. Incorporated by reference to the Registrant's Annual Report on Form
10-KSB for the fiscal year ended June 30, 1995.
7. Incorporated by reference to the Registrant's Annual Report on Form
10-KSB for the fiscal year ended June 30, 1996.
8. Incorporated by reference to the Registrant's Form 10-Q for the quarterly
period ended September 30, 1996.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed by the Registrant during
the quarter ended March 31, 1997.
- 11 -
<PAGE>
AMERICAN TECHNICAL CERAMICS CORP. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN TECHNICAL CERAMICS CORP.
(Registrant)
DATE: April 25, 1997 BY: /s/ VICTOR INSETTA
------------------
Victor Insetta
President
(Chief Executive Officer)
DATE: April 25, 1997 BY: /s/ JAMES CONDON
----------------
James Condon
Controller
(Principal Financial Officer)
- 12 -
<PAGE>
Exhibit 10(b)(v)
THIRD AMENDMENT OF LEASE
THIS THIRD AMENDMENT OF LEASE, dated as of January 1, 1997,
between VICTOR INSETTA, DOING BUSINESS AS STEPAR LEASING COMPANY, having an
office at 15 Stepar Place, Huntington Station, New York 11746 ("Landlord"), and
AMERICAN TECHNICAL CERAMICS CORP., a Delaware corporation having its principal
executive office at One Norden Lane, Huntington Station, New York 11746
("Tenant").
W I T N E S S E T H :
WHEREAS, Victor Insetta (predecessor-in-interest to Landlord)
leased to Phase Industries, Inc. (predecessor-in-interest to Tenant) the real
property known as 15 Stepar Place, Huntington Station, New York, and all
buildings and improvements thereon (collectively, the "Premises") pursuant to
an Indenture of Lease (the "Original Lease"), dated as of July 15, 1976, as
amended by an Amendment to Lease Agreement (the "First Amendment"), dated May
8, 1984, and a Second Amendment of Lease (the "Second Amendment"), dated as of
February 9, 1989 (the Original Lease, the First Amendment and the Second
Amendment are hereinafter collectively referred to as the "Lease"); and
WHEREAS, since February 28, 1996, Landlord and Tenant have
operated under the terms of the Lease on a month-to-month basis; and
WHEREAS, Landlord and Tenant desire to amend the Lease to
formally extended the term thereof through December 31, 2001;.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
mutual receipt and legal
<PAGE>
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1. Effective as of the date hereof, the Lease is hereby
amended as follows:
Article II of the Original Lease, as amended by Paragraph 1
of the Second Amendment, is hereby deleted in its entirety and the following
is hereby inserted in lieu thereof:
"ARTICLE II
TERM OF LEASE
TO HAVE AND TO HOLD the said demised premises unto
the Tenant, for and during a term commencing on July 15, 1976
and terminating on December 31, 2001, unless such term shall
be sooner terminated as hereinafter provided."
2. This Amendment is offered to Tenant for signature with
the express understanding and agreement that this Amendment shall not be
binding upon Landlord unless and until Landlord shall have executed and
delivered a fully executed copy of this Amendment to Tenant.
3. As modified hereby, the Lease is hereby ratified and
confirmed and continues in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Amendment to be executed as of January 1, 1997.
/s/ Victor Insetta
-----------------------------------------
VICTOR INSETTA DOING BUSINESS AS
STEPAR LEASING COMPANY, Landlord
AMERICAN TECHNICAL CERAMICS CORP.,
Tenant
By: /s/ Victor Insetta
-------------------------------------
<PAGE>
Exhibit 10(e)
AMENDED AND RESTATED LEASE
Between
V.P.I. PROPERTIES ASSOCIATES
d/b/a V.P.I. PROPERTIES ASSOCIATES, LTD.
(Lessor)
and
AMERICAN TECHNICAL CERAMICS (FLORIDA), INC.
(Tenant)
Effective as of July 1, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION Page
- ------- ----
<S> <C> <C>
1. THIS LEASE.......................................................................................... 1
PREMISES LEASED..................................................................................... 1
3. TERM................................................................................................ 2
4. RENT; TENANT'S OTHER OBLIGATIONS.................................................................... 2
5. NO RENEWAL OPTIONS.................................................................................. 5
6. TAXES AND ASSESSMENTS............................................................................... 5
7. USE................................................................................................. 6
8. REPAIR AND MAINTENANCE OF PREMISES.................................................................. 6
9. UTILITIES........................................................................................... 7
10. INDEMNIFICATION..................................................................................... 7
11. INSURANCE........................................................................................... 8
12. CASUALTY............................................................................................. 10
13. CONDEMNATION......................................................................................... 11
14. SIGNS................................................................................................ 12
15. ALTERATIONS.......................................................................................... 13
16. REMOVAL OF TRADE FIXTURES............................................................................ 13
17. INSPECTION OF PREMISES............................................................................... 13
18. LIENS................................................................................................ 13
19. OPTION TO PURCHASE................................................................................... 13
20. INVESTMENT CREDIT.................................................................................... 18
21. ASSIGNMENT AND SUBLETTING............................................................................ 18
<PAGE>
22. CONDITIONAL LIMITATIONS DEFAULT PROVISIONS.......................................................... 18
23. OBLIGATIONS UNDER AGREEMENT.......................................................................... 22
24. ESTOPPEL CERTIFICATES................................................................................ 22
25. SURRENDER OF POSSESSION.............................................................................. 23
26. SEPARABILITY......................................................................................... 23
27. MEMORANDUM OF LEASE.................................................................................. 23
28. NOTICE............................................................................................... 23
29. SUCCESSION........................................................................................... 24
30. RIGHT OF FIRST OFFER................................................................................. 24
</TABLE>
<PAGE>
AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE, entered into as of the 1st day of
July, 1996 between V.P. I. PROPERTIES ASSOCIATES, a New York limited
partnership, qualified to do business in the State of Florida under the name
V.P.I. Properties Associates, Ltd. and having its offices at One Norden Lane,
Huntington Station, New York, New York 11746-2102 herein called "Lessor," and
AMERICAN TECHNICAL CERAMICS (FLORIDA), INC., a Florida corporation and having
its offices at 2201 Corporate Square Boulevard, Jacksonville, Florida 32216,
herein called "Tenant."
RECITALS
1. Lessor and Tenant entered into an agreement of lease effective as
of October 1, 1980 and amended it by Amendment of Lease dated June
20, 1994 (collectively, the "Existing Lease");
2. Lessor and Tenant want to further amend the Existing Lease and
restate it in full in one unified document.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. THIS LEASE. This Amended and Restated Lease is intended to and
hereby does amend and restate the Existing Lease in such a fashion as to render
this document (the "Lease") the fully integrated instrument setting forth the
understandings of the parties in full without reference back to the Existing
Lease. The leasehold estate created by the Existing Lease remains
uninterrupted, but the agreements between Lessor and Tenant with respect
thereto are governed entirely by this Lease.
2. PREMISES LEASED. Lessor hereby leases to Tenant and Tenant hereby
rents from Lessor all that piece, parcel or tract of land situate and lying and
being in Duval County, Florida, as more particularly described in EXHIBIT A
attached hereto and made a part hereof, together with four buildings
constructed thereon and described on EXHIBIT B attached hereto and made a part
hereof, including all improvements located thereon, and together with all
rights, easements and appur tenances to the same belonging or usually held and
enjoyed therewith. The land and all such improvements, equipment, easements and
appurtenances are hereinafter sometimes referred to as the "leased premises."
The leased premises are leased subject to:
(a) the existing state of the title to the land as of the
commencement of the term of this Lease;
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(b) any state of facts which an accurate survey or physical
inspection thereof might show;
(c) all zoning regulations, restrictions and other laws and
regulations now or hereafter applicable to the leased premises; and
(d) the following instruments made in connection with the
issuance and sale by the Jacksonville Port Authority (the "Authority"), of the
Authority's "Jacksonville Port Authority Industrial Development Revenue Bonds
[(American Technical Ceramics Project (the "Project"))], Series 1981,"
initially in the aggregate principal amount of $2,000,000 (the "Bonds"), issued
and sold to finance all or part of the cost of the acquisition, construction
and equipping of the leased premises, all dated as of May 1, 1981:
(i) Warranty Deed and Bill of Sale (the "Deed and
Bill of Sale") from the Lessor (as grantor) to the Authority (as grantee),
(ii) Installment Sale and Security Agreement (the
"Agreement") from the Authority (as seller) to Lessor (as purchaser),
(iii) This Lease,
(iv) Trust Indenture (the "Indenture") from the
Authority to Barnett Banks Trust Company, N.A., Trustee (the "Trustee"),
(v) Assignment of Leases, Rents and Profits from
Lessor to the Trustee, and
(vi) Subordination, Non-Disturbance and Attornment
Agreement between Tenant and the Trustee.
Tenant represents to Lessor that Tenant has examined the
title to the leased premises and copies of the above-mentioned instruments,
prior to the execution and delivery of this Lease, and has found the same to be
satisfactory for all purposes hereof.
3. TERM. This Lease shall be for a term commencing on
October 1, 1980, and expiring September 30, 2010 (the "Term").
4. RENT; TENANT'S OTHER OBLIGATIONS.
(a) As payments on account of rent for the properties leased
hereunder, and having made all requested payments of rent, supplemental rent
and other charges owed to Lessor through June 30, 1996, Tenant hereby
unconditionally promises to pay:
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(i) to the Trustee, for the account of the Lessor,
payments hereunder sufficient at all times to pay in full the principal of,
premium, if any, and interest on the Bonds, and all expenses of the Trustee
under the Indenture, and any and all other payments required to be made by
Lessor under the Agreement and the Indenture, when and as the same become due
and payable (whether at maturity or by acceleration, prepayment, call for
redemption, or otherwise); all such payments shall be made in immediately
available funds, at the principal corporate trust office of the Trustee which
on the date hereof is located at 801 Riverside Avenue, Jacksonville, Florida
32204, or such other place as Lessor or the Trustee shall designate at any time
in writing to Tenant;
(ii) to the Lessor, directly and commencing on
July 1, 1996, as supplemental rent, the amount set forth in SUBSECTION
4(A)(III) below, provided, however, if the Tenant has received notice from the
Trustee that a default or Event of Default under the Agreement has occurred and
is continuing, all supplemental rent payments shall be paid to the Trustee for
the account of the Lessor. All payments of supplemental rent shall be made in
equal monthly installments in advance on the first day of each and every
remaining calendar month during the Term.
(iii) The supplemental rent for the lease year
commencing on July 1, 1996 shall be $378,600 (the "Escalation Base"). The
supplemental rent for the lease year commencing on July 1, 1997 shall be the
Escalation Base increased by the percentage increase, if any, in the CPI
(hereinafter defined) for the last reported month available to the public on
June 1, 1997 as compared to the CPI for the same month in 1996 (the "Base
CPI"). The supplemental rent for each lease year after the lease year
commencing on July 1, 1997 shall be the Escalation Base increased by the
percentage increase, if any, in the last reported month available to the public
on June 1 of the next preceding lease year as compared to the Base CPI. On or
before June 15, 1997 and on or before each June 15 thereafter during the Term,
Lessor shall provided Tenant with written notice of the supplemental rent for
the next succeeding lease year and the calculation for determining such
supplemental rent. Notwithstanding the result of any calculation of
supplemental rent hereunder, in no event shall supplemental rent for any lease
year be less than supplemental for the preceding lease year.
(iv) As used herein "CPI" means the Consumer
Price Index for All Urban Consumers published by the Bureau of Labor Statistics
of the United States Department of Labor, [Northeastern United States Area],
All Items (1982-84=100), or any successor index thereto, appropriately
adjusted. In the event that the CPI is converted to a different standard
reference base or otherwise revised, the determination of adjustments provided
for herein shall be made with the use of such conversion factor, formula or
table for converting the CPI as may be published by the Bureau of Labor
Statistics or, if said Bureau shall not publish the same, then with the use of
such conversion factor, formula or table as may be published by Prentice-Hall,
Inc., or any other nationally recognized publisher of similar statistical
information. If
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the CPI ceases to be published, and there is no successor thereto, such other
index as Lessor and Tenant shall agree upon in writing shall be substituted for
the CPI. If Lessor and Tenant are unable to agree as to such substituted index,
such matter shall be submitted to the American Arbitration Association or any
successor organization for determination in accordance with the regulations and
procedures thereof then obtaining for commercial arbitration.
(b) Tenant shall pay any and all sales or rental taxes
0becoming due in respect of the rents payable under this Lease.
(c) Notwithstanding anything to the contrary in this Lease,
Tenant hereby unconditionally promises to make payments on account of rent
under SUBSECTION 4(A)(I). Tenant further agrees at its own expense to perform
all other covenants of the Lessor under the Agreement and the Indenture. Tenant
agrees that its obligations to make payments of said payment on account of rent
and to perform said covenants of the Lessor under the Agreement and the
Indenture are absolute and unconditional, and shall not be subject to any
defense, reduction, diminution or postponement or any right of setoff,
counterclaim, crossclaim, recoupment or abatement, or otherwise, for any reason
whatsoever, whether arising out of any breach of the obligations of the Lessor,
the Authority, the Trustee, any paying agent for the Bonds or any holders or
owners of the Bonds under or arising out of or in connection with this lease,
the Agreement, the Indenture or the Bonds, or otherwise, or out of any
indebtedness or liability at any time owing to Tenant by the Lessor, the
Authority, the Trustee, any such paying agent or any holders or owners of the
Bonds, or arising from any other matter, event or condition of any kind. Tenant
will not suspend or discontinue any such payment on account of rent payments or
the performance of said covenants of the Lessor under the Agreement and the
Indenture for any cause, including without limitation failure to complete the
acquisition, construction and equipping of the leased premises, any defect in
the condition of the leased premises or any part thereof, failure of
consideration, failure of or a defect in title to the leased premises or any
part thereof, eviction or constructive eviction, any breach or representation
or warranty, destruction of or damage to the leased premises, commercial
frustration of purpose, any change in the tax or other laws, ordinances, rules,
regulations, orders or other actions of the United States of America, the State
of Florida or any subdivision, agency or instrumentality of either, or any
default in the performance of any agreement, express or implied, or in the
payment or performance of any duty, liability or obligation arising out of or
in connection with this Lease, the Agreement, the Indenture, the Bonds or
otherwise. Nothing contained in this SUBSECTION 4(A)(I) shall be construed to
release the Lessor, the Authority or the Trustee from any of their respective
obligations contained in this Lease, the Agreement or the Indenture. If Lessor
defaults in the observance or performance of any of its obligations under this
Lease, Tenant may institute such action against Lessor as Tenant may deem
necessary to compel observance and performance, provided that no such action
shall violate Tenant's agreements under this SUBSECTION
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(C) of this SECTION 4. The Authority and the Trustee shall be third party
beneficiaries of the covenants contained in this SECTION 4.
5. NO RENEWAL OPTIONS. There are no renewal options hereunder
for the leased premises.
6. TAXES AND ASSESSMENTS.
(a) Tenant shall at all times during the Term, as additional
rent, pay before delinquency all real estate taxes and any and all special
assessments and all other charges levied upon or against the leased premises or
any interest therein, which become payable during the term hereof, including
any tax, assessment or charge that now or hereafter may be levied, assessed or
imposed upon Lessor or the leased premises based upon or arising out of its
leasing, use or operation of the leased premises. Tenant shall also pay all
taxes, assessments, utility and other charges which Lessor is obligated to pay
under SUBSECTION 6.3 of the Agreement and shall be entitled to exercise
Lessor's rights under that SUBSECTION. Tenant's obligation to pay taxes,
special assessments and other charges shall be contingent upon and subject to
the following provisions and conditions:
(1) Tenant may take the benefit of the
provisions of any statute or ordinance permitting any special assessment to be
paid over a period of time, and Tenant shall be obligated to pay only the
installments of such special assessments as shall become due and payable during
the term hereof.
(2) Tenant shall pay only its pro rata share of
taxes, special assessments (or instruments thereof), other charges which become
due and payable during the years in which the term of this Lease commences and
ceases, such pro rata share to be calculated by multiplying the amount due and
payable by the ratio which the number of months of the term of this Lease
occurring during the then current tax year bears to the entire number of months
in that tax year.
(b) Nothing herein contained shall be construed to require
Tenant to pay any franchise or income tax assessed against Lessor or to require
Tenant to pay any tax upon the sale, transfer or assignment of the title or
estate of Lessor in the leased premises, except with respect to the instruments
referred to in CLAUSE (D) of SECTION 2 hereof.
(c) Tenant may, at its expense and in its own name, or in the
name of Lessor, or in both names, as may be necessary, in good faith, contest
any such taxes, assessments and other charges to the same extent as Lessor
shall be entitled to contest the same under SUBSECTION 6.3 of the Agreement.
Notwithstanding the other provisions of this SUBSECTION 6(B), Lessor,
the Authority or the Trustee may require that Tenant deposit with Lessor, or
with the
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Authority or the Trustee as security an amount sufficient in the sole judgment
of Lessor to pay any such tax, assessment or other charge, and all interest and
penalties in connection therewith, and all other amounts which are or might
become a charge or lien on the leased premises or any part thereof in any such
proceedings. At any time Lessor, the Authority or the Trustee shall deem the
money so deposited to be insufficient security, Tenant shall, upon demand,
deposit with Lessor, the Authority or the Trustee such additional moneys as in
the judgment of Lessor shall be sufficient to pay all such items. Upon
conclusion of the proceedings or at such other times as Lessor, the Authority
or the Trustee shall direct, the moneys so deposited shall be applied to the
payment of such tax, assessment, charge or lien, and to the interest and
penalties in connection therewith, and any charges accruing in such
proceedings, and the balance, if any, shall be paid to Tenant if Tenant is not
in default under this Lease. In the event money deposited hereunder shall be
insufficient for such payments, Tenant shall forthwith pay over to or at the
direction of Lessor, the Authority or the Trustee the balance required for such
payments.
(d) All refunds received as a result of the overpayment of,
and all funds received as a result of a rebate of any tax, special assessment
or other charge or deriving from any proceeding contesting the validity of such
tax, special assessment or other charge, to the extent attributable to items
paid by Tenant, shall belong to Tenant.
(e) Tenant, the Authority or the Trustee shall furnish to
Lessor, within 45 days after the date when any tax, special assessment or other
charge is payable, copies of the official receipts or other proof satisfactory
to Lessor, the Authority or the Trustee, evidencing payment thereof.
7. USE. The leased premises shall be used as a facility for the
manufacture or processing of electric components and for research and product
development relating thereto. Tenant shall not use or occupy the leased
premises or permit the same to be used or occupied contrary to any statute,
rule, order, ordinance or regulation applicable thereto or in any manner which
would violate any certificate of occupancy affecting the same, or which would
cause structural injury to the improvements or cause the value or usefulness of
the leased premises or any part thereof to diminish or which would constitute a
public or private nuisance or waste.
8. REPAIR AND MAINTENANCE OF PREMISES. Tenant agrees that, beginning
on the date it takes possession of the leased premises and continuing
throughout the term of this Lease, at its sole cost and expense, it will keep
and maintain the leased premises, including without limitation any altered,
rebuilt or additional buildings, structures, equipment, machinery, fixtures,
furnishings and other personal property, improvements and appurtenances
thereto, in good repair and appearance, and will with reasonable promptness
make all structural and nonstructural, foreseen and unforeseen, and ordinary
and extraordinary changes, repairs, and replacements of every kind and nature
which may be required to be made upon or in connection with the leased premises
or any part thereof in order to keep
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and maintain the leased premises in such good repair and appearance. All such
changes, repairs and replacements shall be of first class quality sufficient
for the proper maintenance and operation of the leased premises. Tenant shall
not permit the accumulation of waste or refuse matter, nor permit anything to
be done on the leased premises which would invalidate or prevent the
procurement of any insurance policies which may at any time be required
pursuant to the provisions of SECTION 11. Lessor shall not be required to
maintain, repair or rebuild or to make any alterations, replacements or
renewals of any nature or description in or to the leased premises or any part
thereof, whether ordinary or extraordinary, structural or nonstructural,
foreseen or unforeseen, or to maintain the leased premises or any part thereof
in any way, and Tenant hereby expressly waives any right to make repairs at the
expense of Lessor which may be provided for in any statute or law in effect at
the time of the execution of this lease or any statute or law which may
thereafter be enacted.
9. UTILITIES. Tenant shall pay for all gas, electricity, water,
sewer, heat and other utilities used in and about the leased premises.
10. INDEMNIFICATION. Tenant agrees to pay, and to protect, indemnify
and save harmless Lessor, the Authority and the Trustee from and against any
and all labilities, obligations, losses, damages, costs, penalties, expenses
(including all attorney's fees and expenses of Tenant, Lessor, the Authority
and the Trustee), causes of action, suits, claims, demands or judgments of any
nature whatsoever arising from (i) any accident or injury to, or the death of,
any person, or any damage to property on the leased premises or upon adjoining
sidewalks, streets or ways, or in any manner growing out of or connected with
the use, non-use, condition or occupancy of the leased premises or any part
thereof or of adjoining sidewalks, streets or ways, (ii) violation of any
agreements or conditions of this lease and of any contracts, agreements,
restrictions, statutes, laws, ordinances or regulations or other documents
(whether or not recorded) affecting the leased premises or any part thereof or
the ownership, occupancy or use thereof, or (iii) any tortious act or omission
on the part of Tenant or of any of its agents, contractors, sublessees,
licensees or invitees. In case any action, suit or proceeding is brought
against Lessor, the Authority or the Trustee, by reason of any occurrence
herein described, Tenant will at its own expense defend such action, suit or
proceeding with counsel satisfactory to Lessor, the Authority or the Trustee,
as the case may be.
11. INSURANCE.
(a) During such time as Lessor is required by SUBSECTION 6.4
of the Agreement to carry the insurance described therein, the Tenant shall
perform the Lessor's obligations under said SUBSECTION 6.4. In addition to the
parties named as co-insureds in SUBSECTION 6.4 of the Agreement, the Lessor
shall also be designated as a co-insured.
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(b) After the Agreement has been terminated and title to the
Project has vested in Lessor, Tenant will maintain at all times from the date
Tenant is deemed to have taken possession of the leased premises insurance on
the leased premises of the following character:
(i) insurance against loss or damage by fire,
lighting, windstorm, hail, explosion, aircraft, smoke, vandalism, malicious
mischief, vehicle damage and other risks from time to time included under
"extended coverage" policies and such other risks as are or shall customarily
be insured against with respect to property that is similar to the leased
premises, in amounts sufficient to prevent Tenant and Lessor from becoming a
co-insurer of any loss under the applicable policies, but in any event in
amounts not less than the full insurable value of the leased premises. The term
"full insurable value," as used herein, means actual replacement value;
(ii) general public liability insurance against
claims for bodily injury, death or property damage occurring on, in or about
the leased premises and the adjoining streets, sidewalks and passageways, such
insurance to afford protection to Tenant and Lessor of not less than a single
limit of $1,000,000 with respect to bodily injury or death resulting from any
one accident, and not less than $1,000,000 with respect to property damage; all
such insurance may be maintained under general contractual liability policies,
which policies shall cover the obligations of Tenant under SECTION 11 hereof;
(iii) workmen's compensation insurance covering all
persons employed in connection with any work done on or about the leased
premises in connection with which claims for death or bodily injury could be
asserted against Tenant, Lessor, the Authority or the Trustee or the leased
premises; and
(iv) such other insurance on the leased premises as
Lessor may from time to time reasonably request to protect the leased premises
in such amounts and against such other insurable hazards which at the time are
commonly obtained in the case of property similar to the leased premises
including rent insurance, war risk insurance (when and to the extent obtainable
from the United States Government or any agency thereof) and boiler and
pressure vessel insurance.
Such insurance shall be written by companies of recognized financial
standing approved by Lessor authorized to do an insurance business in the state
in which the leased premises are located, and such insurance shall be in form
acceptable to Lessor and shall name as the insured parties thereunder Tenant
and the Lessor, as their interests may appear. The Lessor shall not be required
to prosecute any claim against any insurer or to contest any settlement
proposed by any insurer, provided, however, that Tenant may, at its sole cost
and expense, prosecute any such claim or contest any such settlement, and in
such event Tenant may bring any such prosecution or contest in the name of
Lessor, Tenant or both, and Lessor will join therein at Tenant's written
request upon the receipt by Lessor of an indemnity from
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Tenant against any and all costs, liabilities and expenses in connection with
such prosecution or contest. In any case in which Tenant may be entitled to
reimbursement of any expense or to payment of any sum by Lessor, Tenant shall
be entitled to participate in any proceeding to determine the amount of any
such sum, and no settlement with the insurer shall be made without the consent
of Tenant.
So long as there is a mortgage or similar lien on the leased premises,
every such insurance policy referred to in CLAUSES (I) and (IV) of SUBSECTION
11(B) shall bear a noncontributory mortgagee endorsement in favor of the
Trustee, and loss under any such policy shall be made payable to the Trustee,
provided, however, that the net proceeds under policies carried pursuant to
SUBSECTIONS (I) AND (IV) above shall be applied in the manner provided in
SECTION 12 hereof, and the net proceeds under policies carried pursuant to
SUBSECTIONS (II) AND (III) above shall be applied toward the extinguishment or
satisfaction of the liability with respect to which such proceeds have been
paid. Every such policy shall contain, to the extent obtainable, an agreement
by the insurer that it will not cancel such policy except after 10 days' prior
written notice to Lessor and that any loss otherwise payable thereunder shall
be payable notwithstanding any act or negligence of Lessor or Tenant which
might, absent such agreement, result in a forfeiture of all or a part of such
insurance payment and notwithstanding (i) the occupation or use of the leased
premises for purposes more hazardous than permitted by the terms of such
policy; (ii) any foreclosure or other action or proceeding taken pursuant to
any provision of the mortgage or similar instrument upon the happening of an
event of default, as defined therein, or (iii) any change in title or ownership
of the leased premises.
Tenant shall deliver to Lessor promptly after the execution and
delivery of this Lease, the original or duplicate policies or certificates of
the insurers evidencing all the insurance which is then required to be
maintained by Tenant hereunder, and Tenant shall, within 30 days prior to the
expiration of any such insurance, deliver other original or duplicate policies
or other certificates of insurers evidencing the renewal of such insurance.
Should Tenant fail to effect, maintain or renew any insurance provided for in
this SECTION 11, or to pay the premium therefor, or to deliver to Lessor and
the Trustee any of such policies or certificates, then and in any such event
Lessor, at its option but without obligation so to do, may procure such
insurance, and any sums expended by either of them to procure any such
insurance, together with interest thereon at 15% per annum from date of payment
to date of reimbursement by Tenant, shall be additional rent hereunder and
shall be repaid by Tenant within 30 days after receipt of bills therefor.
Tenant shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required in this SUBSECTION
11(B) to be furnished by Tenant unless Lessor is included therein as a named
insured, with loss payable as in this Lease provided. Tenant shall immediately
notify Lessor whenever any such separate insurance is obtained and shall
deliver the policy or policies or certificates evidencing the same to Lessor.
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12. CASUALTY.
(a) If the leased premises or any part thereof shall be
damaged or destroyed by fire or any other cause, Tenant shall immediately
notify Lessor and the Trustee of such destruction or damage. Tenant expressly
waives the provisions of any present or future law relating to such damage or
destruction and agrees that the provisions of this Lease shall control the
rights of Lessor and Tenant.
(b) Subject to the further provisions of this SECTION 12,
there shall be no abatement of rent pending repairs or rebuilding occasioned by
any casualty, except to the extent to which Lessor shall have received a net
sum as proceeds of any rent insurance with respect to such casualty.
(c) If at the time of any casualty the Agreement shall be in
effect, the provisions of SUBSECTION 7.2 of the Agreement shall apply and the
Tenant shall perform Lessor's obligations and shall have the right to exercise
Lessor's elections thereunder. If as a result of such damage or destruction the
Tenant elects not to repair the Project and provides the Trustee on behalf of
the Lessor, and as a payment of additional rent to Lessor, applicable as
provided in SECTION 23 hereof, with funds equal to the unpaid balance of the
purchase price of the Project payable under said SUBSECTION 7.2, it may
terminate this Lease after all principal of, premium, if any, and interest on
the Bonds have been paid in full or provision for such payment shall have been
made in accordance with the Indenture.
(d) If the Agreement shall not then be in effect and the
leased premises shall be substantially damaged or destroyed in any single
casualty from any cause whatsoever so that the leased premises could not be
restored to their condition immediately preceding such casualty within 120 days
of the casualty as such period is determined by Tenant, then Tenant may give
written notice to Lessor and the Trustee within 30 days after the occurrence of
such casualty of Tenant's intention to terminate this Lease. Such notice shall
be signed by an authorized employee of Tenant, and shall: (i) specify such
termination date, which shall be the first day of any month occurring not less
than 30 days after the delivery of such notice; and (ii) contain a
certification by Tenant, signed by an authorized employee, to the effect that
the leased premises have suffered such a casualty. In such event, this Lease
and all obligations hereunder shall terminate on such termination date, but
only upon payment by Tenant of all rent and other sums due and payable by it
under this Lease to and including such termination date, and provided that all
the principal of, premium, if any, and interest on the Bonds and all expenses
of the Trustee shall have been paid in full or provision for such payment shall
have been made in accordance with the pro visions of the Indenture. If all or
any portion of the leased premises shall be damaged or destroyed by any fire or
any other cause and this lease is not terminated as provided in this SUBSECTION
(D), then this Lease shall continue in full force and effect without any
abatement of rent, and Lessor shall promptly and diligently after any such
damage or destruction and, at its own cost and expense, repair and restore the
leased
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premises to a condition substantially equivalent to its condition prior to the
event causing such damage or destruction.
13. CONDEMNATION.
(a) Tenant hereby irrevocably assigns to Lessor any award or
payment to which it may be or become entitled by reason of any taking of the
leased premises or a part thereof, in or by condemnation or other eminent
domain proceedings pursuant to any law, general or special, or by reason of the
temporary requisition of the use or occupancy of leased premises or any part
thereof, by any governmental authority, civil or military, whether the same
shall be paid or payable in respect of Tenant's leasehold interest hereunder or
otherwise. Lessor shall be entitled to participate fully in any such
proceedings at Tenant's cost and expense.
(b) If at the time of any condemnation the Agreement shall be
in effect, the provisions of SUBSECTION 7.3 of the Agreement shall apply, and
the Tenant shall perform the Lessor's obligations and shall have the right to
exercise Lessor's elections thereunder. If, as a result of such condemnation,
the Tenant elects not to restore or replace the Project and provides the
Trustee on behalf of the Lessor, and as a payment of additional rent to the
Lessor, applicable as provided in SECTION 23 hereof, with funds equal to the
unpaid balance of the purchase price of the Project payable under said
SUBSECTION 7.3, it may terminate this Lease after all principal of, premium, if
any, and interest on the Bonds have been paid in full, or provision for such
payment shall have been made in accordance with the Indenture.
(c) If at the time of any condemnation the Agreement shall
not be in effect and the entire leased premises shall be taken (including any
transfer in lieu thereof) in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or any substantial portion
of the leased premises which is sufficient to render the remaining portion
thereof unsuitable for Tenant's continued use or occupancy shall be taken in or
by any such proceedings, then Tenant may within 30 days after such taking give
notice to Lessor and the Trustee of Tenant's intention to terminate this Lease.
Such notice shall be signed by an authorized employee of Tenant and shall (i)
specify such termination date, which shall be the first day of any month
occurring not less than 30 days after the delivery of such notice; and (ii) if
less than the entire leased premises shall have been taken, contain a certifica
tion by Tenant, signed by an authorized employee, to the effect that the
portion of the leased premises so taken is sufficient to fulfill the conditions
set forth in this SUBSECTION 13(C). In such event, this Lease and all
obligations hereunder shall terminate on such termination date, but only upon
payment by Tenant of all rent and other sums due and payable by it under this
Lease, to and including such termination date, and provided that all the
principal of, premium, if any, and interest on he Bonds and all expenses of the
Trustee shall have been paid in full or provision for such payment shall have
been made in accordance with the provisions of the Indenture. If (i) the entire
leased premises or any substantial portion of the leased premises shall
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be taken through condemnation or other eminent domain proceedings pursuant to
any law, general or special, and this Lease is not terminated as provided in
this SUBSECTION (C) or (II) the use or occupancy of the entire leased premises
or any part thereof shall be temporarily taken by any government authority,
civil or military, then this Lease shall continue in full force and effect
without any abatement of rent, and Lessor shall promptly and diligently after
any such taking and at its cost and expense either restore and rebuild the
leased premises to a condition substantially equivalent to their condition
prior to such condemnation or eminent domain proceedings or such temporary
taking or replace the leased premises by the acquisition, construction and
installation of land, improvements, fixtures, furnishings, machinery, equipment
and other personal property fully adequate to replace the leased premises or
the portions thereof so lost or taken. Any net condemnation award shall be
applied to the cost of restoring and rebuilding or replacing the leased
premises; provided, however, that if the cost of such replacement or
restoration and rebuilding would exceed the net condemnation award, Lessor
shall have the right to terminate this Lease upon notice as provided in
SUBSECTION 13(B).
(d) For the purposes of this Lease, all amounts paid pursuant
to any agreement with any condemning authority which has been made in
settlement of any condemnation or other eminent domain proceeding affecting the
leased premises shall be deemed to constitute an award made in such proceeding.
14. SIGNS. Tenant shall have the right to use the exterior of any
building on the leased premises, including the roof, for the purpose of
erecting or panting thereon or attaching thereto a sign or signs advertising
Tenant's business, provided such sign or signs shall not injure any such
building and that any sign attached to any such building shall be in conformity
with all applicable laws, ordinances, rules or regulations. If not previously
removed, Tenant shall remove any such sign or signs upon the termination of
this Lease. Any defacement or damage to the leased premises caused by the
removal of such sign or signs shall be repaired promptly by Tenant at its
expense.
15. ALTERATIONS. Subject to any limitation contained in the Agreement
during the period the Agreement is in effect, Tenant shall have the right at
its own expense to make such minor alterations, additions, installations,
changes and improvements in and upon the leased premises as may be necessary
for Tenant's purposes, provided such alterations, additions, installations,
changes and improvements shall not adversely affect the market value of the
leased premises or change the character of the leased premises, nor permanently
injure the buildings or diminish their value. Tenant shall have the right to
remove any such minor alterations, additions, installations, changes and
improvements to the leased premises made by Tenant, provided that any damage to
the leased premises caused thereby will be fully repaired by Tenant at its
expense. In the event Tenant fails to remove any of such minor alterations,
installations, changes or improvements which Tenant has the right
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to remove prior to the termination of this lease, Tenant shall be deemed to
have abandoned the same and thereupon the same shall become the property of
Lessor.
16. REMOVAL OF TRADE FIXTURES. If no default or event of default
hereunder or under the Agreement has happened and is continuing, Tenant may at
any time during the term hereof remove from the leased premises any trade
fixtures, machinery or equipment belonging to Tenant or third partes, provided
that Tenant shall repair at its expense any damage to the leased premises
caused by such removal.
17. INSPECTION OF PREMISES. Tenant shall permit the Trustee, the
Authority, the Lessor and their duly authorized representatives to enter upon
the leased premises at all reasonable times during business hours for the
purpose of inspecting the leased premises. If any such inspection discloses the
need for repairs or replacements which Tenant is obliged to make under the
provisions of this Lease, Tenant shall make the same promptly.
18. LIENS. Tenant shall commit no act which shall in any way
encumber the title, estate or interest of, the Authority, the Trustee or the
Lessor in and to the leased premises.
19. OPTION TO PURCHASE.
(a) Tenant shall have the one-time option to purchase the
leased premises for its fair market value (the "PURCHASE OPTION") provided
that:
(i) This Lease shall be in full force and
effect without default beyond applicable grace periods on the part of Tenant;
(ii) Tenant shall give Landlord written notice
(the "OPTION NOTICE") of its election to exercise the Purchase Option not later
than one (1) year prior to the expiration of the Term, time being of the
essence;
(iii) The Purchase Option, in the sole and
absolute discretion of
Lessor, shall be inapplicable, null, void and of no further force and effect
if, either as of the time of the giving of the Option Notice or as of the
Closing Date, Tenant shall be in default under any of the terms and conditions
of this Lease; and
(iv) Tenant shall, as of the date or the Option Notice and the
Closing Date, be in actual occupancy of an amount of space equal to at least
90% of the leased premises.
(b) The purchase price for the leased premises payable by
Tenant to Lessor shall be either:
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(i) an amount equal to the "FAIR MARKET VALUE" (as defined
and determined in this SECTION 19), which determination shall be as of the date
of the Option Notice; or
(ii) the price determined and submitted with the Option Notice,
(the "PRICE DETERMINATION NOTICE"). If Lessor shall dispute Tenant's
determination of such price and shall be unable to resolve such dispute with
Tenant, then Lessor shall initiate the arbitration process provided for herein
by designating its arbitrator in a notice (the "LESSOR'S ARBITRATION NOTICE")
to Tenant (which notice must specify the name, address and telephone number of
the person designated to act as an arbitrator on its behalf) given to Tenant no
later than thirty (30) days after Tenant shall have delivered the Price
Determination Notice. The determination of the Fair Market Value of the leased
premises shall then be made in accordance with the provisions of SUBSECTION (C)
hereof. If Landlord fails to deliver the Arbitration Notice as provided above,
then Tenant's determination of the purchase price in the Price Determination
Notice shall be final and conclusive.
(c) "FAIR MARKET VALUE" shall mean the fair market value of
the leased premises based upon the following factors:
(i) that Lessor and Tenant are typically motivated;
(ii) that Lessor and Tenant are well informed and
well advised and each is acting in what it
considers its own best interest;
(iii) that a reasonable time under then existing
market conditions is allowed for exposure
of the leased premises on the open market;
(iv) that in the event the leased premises or
any portion thereof have been destroyed or
damaged by fire or other casualty, such
damage has been fully restored;
(v) that Tenant will incur no moving or storage
costs;
(vi) that Tenant will incur no holdover or
termination charges with respect to any
existing leases;
(vii) that market rents then being charged for
comparable space in other similar office
buildings are being charged at the leased
premises;
(viii) that the leased premises is considered free and
clear of this Lease;
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(ix) that the leased premises is being purchased
in "as is" condition and Lessor is not
obligated to perform any work or make any
improvements of any kind whatsoever; and
(x) that the leased premises is being sold
"subject to" those matters of record set
forth in SECTION 2 other than those set
forth in SUBSECTION 2.(D).
(d) Within thirty (30) days after Tenant's receipt of
Lessor's Arbitration Notice, Tenant shall give notice to Landlord specifying
the name, address and telephone number of the person designated to act as an
arbitrator on Landlord's behalf ("Tenant's Arbitration Notice"). If Tenant
fails to deliver the Tenant's Arbitration Notice within the time above
specified, then Lessor shall provide an additional notice to Tenant requiring
Tenant's appointment of an arbitrator within fifteen (15) days after Tenant's
receipt thereof. If Tenant fails to deliver the Tenant's Arbitration Notice
within such fifteen (15) day period, then Landlord's arbitrator shall be
appointed in the same manner as if both arbitrators cannot agree on the
appointment of a third arbitrator as set forth in SUBSECTION (F) below.
(e) If Tenant designates an arbitrator within the time period
specified above, the two arbitrators so chosen shall meet within thirty (30)
days after Landlord's arbitrator is appointed, and shall exchange sealed
envelopes each containing such arbitrator's written determination of the Fair
Market Value. Neither arbitrator shall be bound by nor shall either arbitrator
make any reference to the determination of the Purchase Price which was
previously furnished by Tenant to Lessor. The Fair Market Value specified by
Lessor's arbitrator shall herein be called "Lessor's Submitted Value" and the
Fair Market Rent specified by Tenant's arbitrator shall herein be called
"Tenant's Submitted Value". Copies of such written determinations shall
promptly be sent to both Lessor and Tenant. Any failure of either such
arbitrator to exchange such determinations shall be deemed acceptance of the
other party's arbitrator's determination as the Fair Market Value, if, and only
if, such failure persists for ten (10) days after notice to the party for whom
such arbitrator is acting.
(f) If the higher determination of Fair Market Value for the
space in question is not more than 105% of the lower determination of such Fair
Market Value, then the Fair Market Value for such space shall be deemed to be
the average of the two determinations. If, however, the higher determination is
more than 105% of the lower determination, then within ten (10) days after the
date the arbitrators submitted their respective fair market rent
determinations, the two arbitrators shall together appoint a third arbitrator.
In the event of their being unable to agree upon such appointment within thirty
(30) days after the submission of the respective arbitrators' determinations to
Lessor and Tenant, the third arbitrator shall be selected by the parties
themselves if they can agree thereon within a further period of fifteen (15)
days. If the parties do not so agree, then either party, on behalf of both and
on notice to the other, may request such appointment of an arbitrator meeting
the requirements
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set forth in SUBSECTION (H) below by the American Arbitration Association
located in Jacksonville, Florida or, if it does not then exist, such successor
organization as may then exist. Such third arbitrator shall, within thirty (30)
days after his appointment, make his own determination of the Fair Market Value
and send copies of this determination promptly to both Lessor and Tenant and
their arbitrators. Whichever of Lessor's Submitted Value or Tenant's Submitted
Value shall be closer to the determination of such third arbitrator shall be
averaged with the amount of the determination of the third arbitrator and the
result will conclusively be deemed to be the Fair Market Value.
(g) Each party shall pay the fees and expenses of the
arbitrator appointed by or for such party, and the fees and expenses of the
third arbitrator and all other expenses (not including the attorneys' fees,
witness fees and similar expenses of the parties, which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally.
(h) Each of the arbitrators selected as herein provided must
be a professional employee or principal of an unaffiliated respectable company
engaged in the business of real estate brokerage and/or consulting operating in
the greater Jacksonville area with at least ten (10) years' experience in the
sales of improved industrial and commercial property.
(i) Each arbitrator shall certify to Lessor and Tenant
whether or not, in the previous three (3) years, the arbitrator or his or her
company have (x) been retained by Lessor or Tenant and/or (y) been involved in
an adversarial arbitration or litigation proceeding with either Lessor or
Tenant. Lessor and Tenant reserve the right to reject any arbitrator for good
cause within ten (10) business days after receipt of the certification provided
above.
(j) The arbitration shall be conducted, to the extent
consistent with this SECTION 19, in accordance with the then prevailing rules
of the American Arbitration Association (other than the American Arbitration
Association rules relating to the appointment of arbitrators), or such other
procedures as are agreed to by the arbitrators or the parties hereto. In
rendering such decision and award, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrator(s) so rendered in any court of
competent jurisdiction.
(k) In the event the arbitration process is continuing at the
end of the Term, Tenant may remain in possession until the closing under this
SECTION 19 of the purchase by Tenant of the leased premises at the same rental
being charged by Lessor in the last month of the Term.
(l) Within ten (10) days after the determination of the
purchase price for the leased premises, Lessor and Tenant shall diligently and
in good faith negotiate
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and execute a formal contract of sale for the leased premises. If Lessor and
Tenant do not succeed in so negotiating and executing such formal contract of
sale within such ten (10) day period, the Purchase Option shall then and
thereupon be extinguished. Time is and shall be of the essence with respect to
all of the time periods set forth in this SECTION 19.
(m) Lessor shall not be deemed to have failed to negotiate
such formal contract of sale in good faith by requiring, among other things,
(a) that the purchase price be paid by wire transfer or good certified or
cashier's check, (b) that Tenant take title to the leased premises in "as is"
condition and "subject to" those matters of record set forth in SECTION 2 other
than those set forth in SUBSECTION 2(D), and (c) that Tenant deposit in escrow
with Lessor's counsel a down payment equal to ten (10%) percent of the sales
price forfeitable as liquidated damages in the event of Tenant's default under
such contract of sale.
(n) The closing of the purchase of the leased premises by
Tenant shall occur on a business date fixed by Tenant which is prior to the
45th day following the determination of the purchase price for the leased
premises.
(o) Neither the Purchase Option nor a memorandum thereof
shall be recorded against the leased premises.
20. INVESTMENT CREDIT.
To the extent permissible by law, the Lessor agrees to elect and take
all other action necessary to pass on to the Tenant any investment credits
allowable for federal, state and local income tax purposes in regard to any
item of property leased hereunder.
21. ASSIGNMENT AND SUBLETTING.
(a) Tenant may not assign this Lease or sublet the leased
premises or any part thereof without the prior written consent of Lessor and
the Trustee. No assignment or sublease made as permitted by this SECTION 21
shall affect or reduce any of the rights of Lessor or obligations of Tenant
hereunder, and all the obligations of Tenant hereunder shall continue in full
force and effect as the obligations of a principal and not as the obligations
of a guarantor or surety, to the same extent as though no assignment or
subletting had been made. Neither this Lease nor the term hereby demised shall
be mortgaged or otherwise encumbered by Tenant. Tenant shall, within 10 days
after the execution and delivery of any such assignment or sublease, deliver a
conformed copy thereof to Lessor and the Trustee. The provisions
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of the Agreement relating to the sale and leasing of the Project shall be
applicable hereto.
(b) Tenant hereby irrevocably assigns to the Trustee all
rents and other sums due or to become due under any sublease of all or any
portion of the leased premises entered into pursuant to this Lease until such
time as all principal, premium, if any, and interest on the Bonds, and all
expenses of the Trustee are paid, together with the right to collect and
receive such rents and other sums, provided that so long as no Event of Default
shall have occurred or be continuing hereunder and Lessor shall not have given
notice of such default to Tenant and the Trustee, Tenant shall have the right
to collect and receive such rents and other sums for its own uses and purposes.
Upon the occurrence of any event of default, if Lessor shall give notice of
such default to Tenant and the Trustee, the Trustee shall have absolute title
to such rents and other sums and the absolute right to collect and receive the
same.
22. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS.
(a) Any of the following occurrences and acts shall
constitute an Event of Default under this Lease:
(i) if Tenant at any time during the term of this
Lease (and regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceedings, in law, in equity or before any
administrative tribunal, which have or might have the effect of preventing
Tenant from complying with the terms of this Lease), shall (a) fail to make
when due any payment of rent herein required to be paid by Tenant, or (b) fail
to make when due any payment of additional rent or any other sum herein
required to be paid by Tenant, or (c) fail to observe or perform any of
Tenant's other covenants, agreements or obligations hereunder, and if any such
failure shall continue as to (b) above for 10 days after Lessor shall have
given Tenant notice of such failure, or as to (c) above for 30 days after
Lessor shall have given Tenant notice specifying such failure (or if such
default cannot be cured by the payment of money and cannot, with due diligence,
be cured within such 30 day period owing to causes beyond the control of
Tenant, if Tenant shall fail to proceed promptly to cure the same and
thereafter prosecute the curing of such default with diligence and continuity),
or
(ii) if any Event of Default shall occur under the
Agreement or the Indenture, or
(iii) if Tenant shall file a petition in bankruptcy
or for reorganization or for an arrangement pursuant to any present or future
federal bankruptcy act or under any similar federal or state law, or shall be
adjudicated a bankrupt or insolvent or shall make an assignment for the benefit
of its creditors or shall admit in writing its inability to pay its debts
generally as they become due, or if a petition or answer proposing the
adjudication of Tenant as a bankrupt or its reorganization under any present or
future federal bankruptcy act or any similar
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federal or state law shall be filed in any court and such petition or answer
shall not be discharged or denied within 90 days after the filing thereof, or
(iv) if a receiver, trustee or liquidator of Tenant
or of all or substantially all of the property of Tenant or of the leased
premises shall be appointed in any proceeding brought by Tenant, or if any such
receiver, trustee or liquidator shall be appointed in any proceeding brought
against Tenant and shall not be discharged within 90 days after such
appointment or if Tenant shall consent to or acquiesce in such appointment, or
(v) if at any time the leased premises shall have
been abandoned or left substantially unoccupied for 30 consecutive days, or
(vi) if the interest of Tenant in the leased
premises or part thereof shall be levied upon or attached in any proceeding and
such process shall not be vacated or discharged within 90 days after such levy
or attachment.
(b) This Lease and the term and estate hereby granted are
subject to the limitation that whenever an event of default shall have happened
and be continuing, then Lessor shall have the right at its election, then or at
any time thereafter while any such event of default shall continue and
regardless of and notwithstanding the fact that Lessor has or may have some
other remedy hereunder or by virtue hereof, in law or in equity, to give Tenant
written notice of Lessor's intention to terminate the Term on a date specified
in such notice, and upon the giving of any such notice, the Term and the estate
hereby granted shall expire and terminate upon the date so specified in said
notice as fully and completely and with the same force and effect as if the
date specified in such notice were the date hereinbefore fixed for the
expiration of the Term, and all rights of Tenant hereunder shall expire and
terminate, but Tenant shall remain liable as hereafter provided. In the event
any such notice is given, Lessor shall have the immediate right of re-entry and
possession of the leased premises and the right to remove all persons and
property therefrom. Should Lessor elect to re-enter as herein provided or
should Lessor take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, Lessor may from time to time relet the leased
premises or any part thereof for such term or terms and at such rental or
rentals and upon such terms and conditions as Lessor may deem advisable, with
the right to make alterations in and repairs of the leased premises.
(c) In the event of any termination of the Term as in this
SECTION 22 above provided or as otherwise permitted by law, Tenant shall then
peaceably quit and surrender the leased premises to Lessor, and Lessor may,
without further notice, enter upon, re-enter, possess and repossess the same by
force, summary proceedings, ejectment or otherwise and again have, repossess
and enjoy the same as if this Lease had not been made, and in any such event,
neither Tenant nor any person claiming through or under Tenant by virtue of any
statute or of an order of any
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court shall be entitled to possession or to remain in possession of the leased
premises, but shall forthwith quit and surrender the leased premises, and
Lessor, at its option, shall forthwith, notwithstanding any other provisions of
this Lease to the contrary, be entitled to recover from Tenant (in lieu of all
other claims for damages on account of such termination) as and for liquidated
damages an amount equal to the excess of all the rents reserved hereunder for
the unexpired portion of this Lease discounted to the then present worth over
the fair rental value of the leased premises at the time of termination for
such unexpired portion. The discount rate to be used in discounting reserve
rents and in determining such fair rental value shall be the Prime Rate of
Barnett Bank of Jacksonville, N.A. in effect at the time the calculation
pursuant to this SUBSECTION (C) shall be required to be made. Nothing herein
contained shall, however, limit or prejudice the right of Lessor, in any
bankruptcy or reorganization or insolvency proceedings, to prove for and obtain
as liquidated damages by reason of such termination an amount equal to the
maximum allowed by any bankruptcy or reorganization or insolvency proceedings,
or to prove for and obtain as liquidated damages by reason of such termination
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, such damages are to
be proved, whether or not such amount shall be greater, equal to, or less than
the amount of the excess referred to above.
(d) If Lessor shall re-enter and obtain possession of the
leased premises by reason of or following an event of default, Lessor shall
have the right, without notice, to repair or alter the leased premises in such
manner as to Lessor may seem necessary or advisable so as to put the leased
premises in good order and to make the same rentable, and shall have the right,
at Lessor's option to relet the leased premises or any part thereof, and Tenant
agrees to pay to Lessor on demand all expenses incurred by Lessor in obtaining
possession, and in altering, repairing and putting the leased premises in good
order and condition, and in reletting the same, including reasonable fees of
attorneys, architects and other experts, and also any other reasonable and
legitimate expenses or commissions, and Tenant further agrees to pay to Lessor
upon each rental payment date following the date of such re-entry to and
including the date set forth in SECTION 3 hereof for the expiration of the Term
in effect immediately prior to such re-entry the sums of money which would have
been payable by Tenant as rent hereunder on said rent payment dates if Lessor
had not re-entered and resumed possession of the leased premises, deducting
only the net amount of rent, if any, which Lessor shall actually receive (after
deducting from the gross receipts the expenses, costs and payments of every
kind of Lessor which in accordance with the terms of this Lease would have been
borne by Tenant) in the meantime from and by any reletting of the leased
premises, and Tenant hereby agrees to be and remain liable for all sums
otherwise payable by Tenant under this Lease including, but not limited to, the
expenses of Lessor aforesaid, as well as for any defi ciency aforesaid, and
Lessor shall have the right from time to time to begin and maintain successive
actions or other legal proceedings against Tenant for the recovery of such
deficiency or damages or for a sum equal to any installment or installments of
rent or additional rent and any other sums payable hereunder, and to
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recover the same upon the liability of Tenant herein provided, which liability
it is expressly covenanted shall survive the issuance of any action to secure
possession of the leased premises. Nothing herein contained shall be deemed to
require Lessor to wait to begin such action or other legal proceedings until
the date when this Lease would have expired by limitation had there been no
such event of default.
(e) If under any of the preceding provisions of this SECTION
22, Lessor shall be entitled to give Tenant a notice of termination of the
Term, Lessor, without giving such notice of termination, and notwithstanding
the continuance of the Term and notwithstanding that Lessor may have re-entered
or taken possession of the leased premises pursuant to this SECTION 22, shall
have, to the extent permitted by law, all the rights, powers and remedies given
to Lessor by the preceding provisions of this SECTION 22, and Tenant shall have
the obligations imposed upon it by such provisions. No such re-entry or taking
of possession of the leased premises by Lessor shall be construed as an
election on Lessor's part to terminate the Term unless a written notice of such
intention be given to Tenant or unless such termination be decreed by a court
of competent jurisdiction.
(f) The words "enter," "re-enter" or "re-entry" are not
restricted to their technical legal meaning.
(g) No right or remedy herein conferred upon or reserved to
Lessor is intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any other right
or remedy given hereunder, or now or hereafter existing at law or in equity or
by statute. The failure of Lessor to insist at any time upon the strict
performance of any of the covenants or agreements or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. The receipt by Lessor of any
rent, any additional rent or any other sum payable hereunder with knowledge of
the breach of any covenant or agreement contained in this Lease shall not be
deemed a waiver of such breach, and no waiver by Lessor of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Lessor. In addition to other remedies provided in this Lease, Lessor
shall be entitled, to the extent permitted by law, to injunctive relief in case
of the violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease or to a decree
compelling performance of any of the covenants, agreements, conditions or
provisions of this Lease, or to any other remedy allowed to Lessor at law or in
equity.
(h) In the event either Lessor or Tenant shall be in default
in the performance of any obligations under this Lease and an action shall be
brought for the enforcement thereof, the prevailing party shall be entitled to
reimbursement of all the expenses incurred in connection therewith including
reasonable attorneys' fees.
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23. OBLIGATIONS UNDER AGREEMENT. Notwithstanding anything herein to
the contrary, Tenant hereby agrees to perform any and all obligations, duties
and covenants of the Lessor under the Agreement in a timely and efficient
manner, provided, however, that the purchase price payments required to be made
under such Agreement when paid by Tenant shall be credited toward Tenant's
obligations to pay rent hereunder. Said credits shall be made against Tenant's
obligations in the order n which they come due starting with the obligations
which come due at the earliest time.
24. ESTOPPEL CERTIFICATES. Tenant will, at any time and from time to
time, upon not less than 20 days' prior request by Lessor or the Trustee,
execute, acknowledge and deliver to Lessor or the Trustee, as the case may be,
a statement in writing, executed by an authorized employee, certifying that
this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, and setting forth
such modifications) and the dates to which the rent, additional rent and other
sums payable hereunder have been paid, and either stating that to the knowledge
of the signer of such certificate no default exists hereunder or specifying
each such default of which the signer may have knowledge; it being understood
and intended that any such statement by Tenant may be relied upon by Lessor or
the Trustee or by any prospective purchaser of the leased premises.
25. SURRENDER OF POSSESSION. Upon the expiration or earlier
termination of this Lease, Tenant shall peaceably leave and surrender the
leased premises to Lessor in the same condition in which the leased premises
were originally received from Lessor at the commencement of the Term, except as
improved, repaired, rebuilt, restored, altered or added to as provided in or
required by any provision of this Lease and except for ordinary wear and tear
and in the case of termination pursuant to SECTION 12 OR 13, except for the
condemned portion or the damage giving rise to such termination as the case may
be. Tenant shall remove from the leased premises on or prior to such expiration
or earlier termination all property situated thereon which is not owned by
Lessor including, without limitation, Tenant's trade fixtures, and at its sole
cost and expense shall on or prior to such expiration or earlier termination,
repair any damage caused by such removal. Property not so removed shall become
the property of Lessor, which may thereafter cause such property to be removed
from the leased premises and disposed of, but the cost of any such removal and
disposition as well as the cost of repairing any damage caused by such removal
shall be borne by Tenant.
26. SEPARABILITY. Each and every covenant and agreement contained n
this Lease shall be for all purposes construed to be a separate and independent
covenant and agreement and the breach of any such covenant or agreement by
Lessor shall not to any extent discharge or relieve Tenant from Tenant's
obligation to perform each and every covenant and agreement of this Lease to be
performed by Tenant. If any term or provision of this Lease or the application
thereof to any person or circumstance shall to any extent be found invalid and
unenforceable by a court of competent jurisdiction, the remainder of this
Lease, or the application of such term or
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provision to persons or circumstances other than those to which it is invalid
or unenforceable, shall no be affected thereby, and each term and provision of
this Lease shall be valid and shall be enforced to the extent permitted by law.
27. MEMORANDUM OF LEASE. This Lease shall not be recorded, but
the parties agree, at the request of either of them, to execute a Memorandum of
Lease for recording, containing, inter alia, the names of the parties, the
legal description of the leased premises and the Term.
28. NOTICE. Whenever under this Lease a provision is made for notice
of any kind, it shall be deemed sufficient notice and service thereof if such
notice is in writing and is delivered or sent by: (i) certified mail, postage
prepaid, return receipt requested, (ii) nationally recognized overnight carrier
or (iii) telecopier facsimile, with "hard" copy to follow by one of the methods
in (i) or (ii) above addressed to the address of the party in question first
above written and to the Trustee at its principal corporate trust office in
Jacksonville, Florida, which on the date hereof is located at 801 Riverside
Avenue, Jacksonville, Florida 32204, or to such other address as either party
or the Trustee may designate by notice pursuant to this Section. Notices shall
be deemed given either one business day after delivery to the overnight
carrier, the day of delivery and receipt if delivered by fax (or the first
business day thereafter if the day of delivery and receipt is not a business
day) or three business days after being mailed as provided in clause (i) above.
Notices under this Lease may be given by the attorneys for the respective
parties.
29. SUCCESSION. All of the covenants, agreements, conditions and
undertakings in this Lease shall extend and inure to and be binding upon the
successors in interest and the assigns of the respective parties hereto.
30. RIGHT OF FIRST OFFER.
(a) Provided that this Lease shall be in full force and
effect without default on the part of Tenant, and that the leased premises are
for sale, Lessor shall first give to Tenant notice of Lessor's willingness to
sell the leased premises to Tenant for the sales price set forth in such notice
(the "Price Notice"). Tenant shall have 15 days after Landlord gives the Price
Notice to agree to purchase the leased premises for such price or reject the
Price Notice. If Tenant does not return a copy of the Price Notice to Lessor
indicating thereon Tenant's unconditional agreement to so purchase within such
15-day period, the Price Notice shall be deemed rejected. If Tenant rejects or
is deemed to have rejected the Price Notice, Lessor shall be free to sell the
leased premises to any other person or entity at the price stated in the Price
Notice or at any higher price and on such commercially comparable terms as may
have been set forth in the Price Notice. If, however, Lessor does not convey
the leased premises to such other person within 150 days after the date Lessor
gave the Price Notice, and if the leased premises are for sale, Lessor shall
again offer the leased premises to Tenant by Price Notice as provided herein,
and Tenant shall have the same right to agree to purchase the leased premises
or reject the Price Notice. In the event Tenant
- 23 -
<PAGE>
agrees to purchase the leased premises as provided herein, Lessor and Tenant
shall diligently and in good faith negotiate and execute a formal contract of
sale for the leased premises within ten (10) business days after such agreement
is given to Tenant. If Lessor and Tenant do not succeed in so negotiating and
executing such formal contract of sale within such ten (10) day period, or if
Lessor shall convey the leased premises within the 150-day period as aforesaid,
this right of first offer shall then and thereupon be extinguished. Time is and
shall be of the essence with respect to all of the time periods set forth in
this SUBSECTION 30(A).
(b) Lessor shall not be deemed to have failed to negotiate
such formal contract of sale in good faith by requiring, among other things,
(a) that the purchase price be paid by wire transfer or good certified or
cashier's check, (b) that Tenant take title to the leased premises in "as is"
condition and "subject to" those matters of record set forth in SECTION 2 other
than those set forth in SUBSECTION 2(D), and (c) that Tenant deposit in escrow
with Lessor's counsel a down payment equal to ten (10%) percent of the sales
price forfeitable as liquidated damages in the event of Tenant's default under
such contract of sale.
- 24 -
<PAGE>
(c) The closing of the purchase of the leased premises by
Tenant shall occur on a business date fixed by Tenant which is prior to the
90th day following the giving by Lessor of the operative Price Notice.
(d) Neither this right of first offer nor a memorandum
hereof shall be recorded against the leased premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first written above.
Signed, sealed and V.P.I. PROPERTIES ASSOCIATES, d/b/a
delivered in the V.P.I. PROPERTIES ASSOCIATES, LTD.
presence of: (Lessor)
/s/ Richard Monsorno By /s/ Victor Insetta
- -------------------- -------------------
Victor Insetta,
/s/ Sandra Lumphin its General Partner
- ------------------
As to Lessor
AMERICAN TECHNICAL CERAMICS
(FLORIDA), INC.
(Tenant)
/s/ Roberta Lundsten By /s/ Kathleen M. Kelly
- -------------------- ----------------------
its:
/s/ Irene Geist
- --------------------
As to Tenant Attest /s/ Kathleen M. Kelly
---------------------
Secretary
(Corporate Seal)
- 25 -
<PAGE>
STATE OF FLORIDA )
)
OUNTY OF DUVAL )
The foregoing instrument was acknowledged before me this 31 day of
March, 1997, by Victor Insetta, general partner of V.P.I. Properties
Associates, a New York limited partnership, qualified to do business in the
State of Florida under the name V.P.I. Properties Associates, Ltd., on behalf
of the partnership.
/s/ Jane Legendre
----------------------------------
Notary Public, State of Florida
at Large.
NOTARIAL SEAL) My Commission Expires: 2/13/99
STATE OF NEW YORK )
)
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this 25 day of
March, 1997, by Kathleen M. Kelly , V.P. Admin of American Technical Ceramics
(Florida), Inc., a Florida corporation, on behalf of the corporation.
/s/ Suzanne Hilbert
-----------------------------------
Notary Public, State of New York
at Large.
NOTARIAL SEAL) My Commission Expires: 9/25/97
- 26 -
<PAGE>
EXHIBIT A
A part of Tract "E" as shown on map of John B. Uebelhoer's Subdivision, Plat
Book 7, Page 10 of the Current Public Records of Duval County, Florida, more
particularly described as follows: Commence at the Southwest corner of Section
24, Township 2 South, Range 27 East; thence South 88 degrees 24 minutes 18
seconds West, 110 feet to the Westerly right-of-way line of Corporate Square
Boulevard as established for a width of 100 feet thence South 01 degrees 32
minutes 58 seconds East along the said Westerly right-of-way line, 63.43 fee to
the point of curve of a curve to the right, said curve having a radius of 750
feet, thence along the arc of said curve and along said right-of-way line an
arc distance of 431.13 feet, said curve having a chord bearing and distance of
South 14 degrees 55 minutes 07 seconds West, 425. 22 feet to the point of
tangency of said curve; thence continue along said Westerly right-of-way line
South 31 degrees 23 minutes 11 seconds West, 113.62 feet to the point of curve
of a curve to the left, said curve having a radius of 1,350 feet; thence along
the arc of said curve and along said right-of-way line an arc distance of 925.
69 feet, said curve having a chord bearing and distance of South 11 degrees 44
minutes 33 seconds West, 907.66 feet; thence continue along the arc of said
curve and along said right-of-way line an arc distance of 80.08 feet, said
curve having a chord bearing and distance of South 09 degrees 36 minutes 03
seconds East, 80.07 feet, to the intersection with a curve concave Easterly
having a- radius of 60 feet; thence Southerly along and around said curve an
arc distance of 71. 80 feet, said curve having a chord bearing and distance of
South 12 degrees 44 minutes 05 seconds East, 67.59 feet, to an intersection
with the aforesaid Westerly right-of-way line of Corporate Square Boulevard,
said Westerly right-of-way line being in a curve concave Easterly having a
radius of 1,350 feet; thence Southerly along and around said curve an arc
distance of 18.13 feet, said curve having a chord bearing and distance of South
14 degrees 33 minutes 14 seconds East, 18.13 feet to the Point of Beginning.
From said Point of Beginning, run thence North 75 degrees 03 minutes 41 seconds
East, 17.78 feet to the intersection with a curve concave Northerly having a
radius of 60 feet; thence Easterly along and around said curve an arc distance
of 70. 32 feet, said curve having a chord bearing and distance of North 75
degrees 03 minutes 41 seconds East, 66.36 feet; thence North 75 degrees 03
minutes 41 seconds East, 15.85 feet; thence Southerly along and around a curve
concave Easterly having a radius of 1,250 feet an arc distance of 15.26 feet,
said curve having a chord bearing and distance of South 15 degrees 17 minutes
18 seconds East, 15.26 feet; thence North 88 degrees 26 minutes 48 seconds
East, 289.50 feet to an intersection with the Westerly line of lands described
in Official Records Volume 3458, Page 363; thence South 02 degrees 09 minutes
19 seconds East along the Westerly line of said lands, 200.28 feet to the
Southwest corner of said lands; thence North 88 degrees 26 minutes 34 seconds
East, along the Southerly line of said lands, 99.85 feet to the Southeast
corner of said lands; thence South 02 degrees 07 minutes 47 seconds East, along
the Westerly line of Southside Estates Unit No. 4, as recorded in Plat Book 18,
Pages 79, 79A and 79B, 426.8 feet: thence South 87 degrees 52 minutes 13
seconds West, 328.0 feet; thence North 02 degrees 07 minutes 47 seconds West,
539.8 feet; thence South 87 degrees 52 minutes 13 seconds West, 143.92 feet;
- 27 -
<PAGE>
thence North 14 degrees 33 minutes 14 seconds West, 85.89 feet to the Point of
Beginning. Said parcel contains, 4.5838 acres more or less.
- 28 -
<PAGE>
EXHIBIT B
BUILDINGS
---------
1. Office, Research and Development Building
2. Storage Building
3. Office, Machine Shop, Equipment, Maintenance, Engineering and Warehouse
Building
4. Manufacturing and Office Building
- 29 -
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> MAR-31-1997
<CASH> 3,263
<SECURITIES> 2,047
<RECEIVABLES> 4,708<F1>
<ALLOWANCES> 0
<INVENTORY> 8,901
<CURRENT-ASSETS> 20,182
<PP&E> 30,453
<DEPRECIATION> 16,434
<TOTAL-ASSETS> 34,535
<CURRENT-LIABILITIES> 4,995
<BONDS> 2,996
0
0
<COMMON> 41
<OTHER-SE> 25,234
<TOTAL-LIABILITY-AND-EQUITY> 34,535
<SALES> 26,467
<TOTAL-REVENUES> 26,467
<CGS> 16,801
<TOTAL-COSTS> 23,005
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 289
<INCOME-PRETAX> 3,338
<INCOME-TAX> 1,139
<INCOME-CONTINUING> 2,199
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,199
<EPS-PRIMARY> 0.57
<EPS-DILUTED> 0.57
<FN>
<F1>note: receivables shown net of allowance of 340
</FN>
</TABLE>
