<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X Quarterly Report Pursuant To Section 13 Or 15(d) of the Securities
- ----- Exchange Act of 1934
For the quarterly period ended September 30, 1998.
- ----- 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 0-22089
BRUNSWICK TECHNOLOGIES, INC.
(Exact Name of Registrant As Specified In Its Charter)
Maine 01-0405052
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
43 Bibber Pkwy., Brunswick, ME 04011
(Address of principal executive offices) (Zip Code)
(207) 729-7792
Registrant's 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
----- -----
The registrant had 5,164,563 shares of Common Stock, $.0001 par value,
outstanding as September 30, 1998.
<PAGE> 2
BRUNSWICK TECHNOLOGIES, INC.
INDEX
PAGE NO.
--------
Part I. Financial information.
Item 1. Financial Statements
Report of Independent Accountants 3
Consolidated balance sheets as of September 30, 1998
and December 31, 1997. 4
Consolidated statements of income for the three months
and nine months ended September 30, 1998 and 1997. 5
Consolidated statements of cash flows for the nine
months ended September 30, 1998 and 1997. 6
Consolidated statements of comprehensive income for the
three and nine months ended June 30, 1998. 7
Notes to consolidated financial statements. 7-9
Item 2. Management's Discussion and Analysis of Financial
Condition And Results of Operations. 10
Item 3. Quantitative and Qualitative Disclosures about
Market Risk. 12
Part II. Other Information.
Item 5. Submission of Matters to a Vote of Security
Holders. 13
Item 6. Exhibits and Reports on Form 8-K. 13
2
<PAGE> 3
REPORT OF INDEPENDENT ACCOUNTANTS
October 29, 1998
To the Board of Directors and Shareholders of
Brunswick Technologies, Inc.
We have reviewed the accompanying consolidated balance sheet of Brunswick
Technologies, Inc. and Subsidiaries as of September 30, 1998, and the related
consolidated statements of income and comprehensive income for the three month
and nine month periods ended September 30, 1998 and 1997, and the consolidated
statements of cash flows for the nine month periods then ended. These financial
statements are the responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the accompanying consolidated financial statements for them to be in
conformity with generally accepted accounting principles.
/s/ PRICEWATERHOUSECOOPERS L.L.P.
Portland, Maine
3
<PAGE> 4
BRUNSWICK TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS
(THOUSANDS EXCEPT SHARE INFORMATION)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash $ 1,267 $ 353
Marketable securities available for sale -- 6,607
Accounts receivable, net of allowance for
doubtful accounts of $130 in 1998 and $46 in 1997 5,259 2,909
Inventories 4,666 3,308
Deferred income taxes 179 179
Other current assets 424 354
-------- --------
Total current assets 11,795 13,710
Property, plant and equipment
Land and building 988 937
Furniture and fixtures 616 458
Leasehold improvements 113 81
Machinery and equipment 9,296 6,375
Machine under construction 896 231
Vehicles 92 92
Management information system 345 102
-------- --------
12,346 8,276
Less accumulated depreciation and amortization (2,624) (2,003)
-------- --------
Net property, plant and equipment 9,722 6,273
-------- --------
Due from shareholder 74 70
Investment in European technology, net of accumulated
amortization of $87 in 1998 2,149 --
Goodwill, net of accumulated amortization of $513 in
1998 and $322 in 1997 4,912 5,039
Other assets 77 124
-------- --------
Total assets $ 28,729 $ 25,216
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ 100 $ 100
Due to stockholder 534 84
Accounts payable 2,046 538
Accrued expenses 628 514
Income taxes payable 201 130
-------- --------
Total current liabilities 3,509 1,366
Long-term debt, excluding current installments 253 253
Deferred income taxes 370 370
Shareholders' equity:
Preferred stock, $10 par value; 1,000,000 authorized,
none outstanding -- --
Common stock, $0.0001 par value; 20,000,000 shares authorized,
5,164,563 outstanding in 1998 and 5,146,606 outstanding in 1997 1 1
Additional paid in capital 24,749 24,715
Treasury stock at cost; 3,300 shares in 1998 and 1997 (5) (5)
Cumulative translation adjustment 140 --
Accumulated deficit (288) (1,484)
-------- --------
Total shareholders' equity 24,597 23,227
-------- --------
Total liabilities and shareholders' equity $ 28,729 $ 25,216
======== ========
</TABLE>
The accompanying notes are an integral
part of these financial statements.
4
<PAGE> 5
BRUNSWICK TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF INCOME
(THOUSANDS EXCEPT PER SHARE INFORMATION)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
September 30, September 30,
-------------------------- -------------------------
1998 1997 1998 1997
-------- -------- -------- --------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net sales $ 10,309 $ 7,603 $ 30,325 $ 23,008
Cost of goods sold (raw material purchased from a
stockholder amounted to $2,561 in 1998 and $2,226 in 1997 for
the three months ended September 30, and $6,386 in 1998 and
$4,217 in 1997 for the nine months ended September 30) 8,158 5,682 23,458 17,002
-------- -------- -------- --------
Gross profit 2,151 1,921 6,867 6,006
Selling, general and administrative expenses 1,714 1,219 4,882 3,819
Research and development expenses 138 152 437 418
-------- -------- -------- --------
Operating income 299 550 1,548 1,769
-------- -------- -------- --------
Other income (expense):
Interest income 14 95 77 226
Interest expense -- (93) -- (325)
Miscellaneous, net 99 124 238 179
-------- -------- -------- --------
113 126 315 80
-------- -------- -------- --------
Income before income tax 412 676 1,863 1,849
Income tax expense 152 230 667 670
-------- -------- -------- --------
Net income 260 446 1,196 1,179
-------- -------- -------- --------
Preferred stock dividend -- -- -- (48)
Accretion of preferred stock redemption value -- -- -- (8)
-------- -------- -------- --------
Net income attributable to common stock $ 260 $ 446 $ 1,196 $ 1,123
======== ======== ======== ========
Basic:
Earnings per share $ 0.05 $ 0.10 $ 0.23 $ 0.28
Weighted average common shares outstanding 5,161 4,687 5,157 3,967
Diluted:
Earnings per share $ 0.05 $ 0.09 $ 0.22 $ 0.25
Weighted average common shares outstanding 5,423 5,112 5,447 4,807
</TABLE>
The accompanying notes are an integral
part of these financial statements.
5
<PAGE> 6
BRUNSWICK TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(THOUSANDS EXCEPT FOR SHARE INFORMATION)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30,
1998 1997
-------- --------
(Unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net income $ 1,196 $ 1,179
Adjustments to reconcile net income to net provided
by (used in) operating activities:
Depreciation and amortization 919 594
Deferred taxes -- 325
Changes in assets and liabilities:
Increase in accounts receivable (960) (248)
(Increase) decrease in inventories (659) 5
Decrease in refundable income taxes -- 21
(Increase) decrease in other current assets 213 (167)
(Increase) decrease in due from stockholder (5) --
Increase (decrease) in due to stockholder 450 (820)
Increase (decrease) in accounts payable
and accrued expenses 488 (1,191)
Increase in income taxes payable 29 244
-------- --------
Net cash provided by (used in) operating activities 1,671 (58)
-------- --------
Cash flows from investing activities:
Acquisition of business, net of cash acquired, including
technology (5,993) --
Sale of marketable securities 6,607 --
Purchases of property, plant and equipment (1,443) (624)
Decrease in other assets 47 --
-------- --------
Net cash used in investing activities (782) (624)
-------- --------
Cash flows from financing activities:
Decrease in bank overdraft -- (301)
Net repayments under line of credit -- (1,180)
Issuance of common stock, net of issuance cost 11 14,262
Repayment of long-term debt -- (5,083)
Other -- (7)
-------- --------
Net cash provided by financing activities 11 7,691
Net effect of currency exchange rates changes on cash 14 --
-------- --------
Net increase in cash 914 7,009
Cash at beginning of period 353 355
-------- --------
Cash at end of period $ 1,267 $ 7,364
======== ========
Preliminary allocation of purchase price of acquisition of Tech
Textiles International Ltd., net of cash acquired:
Working capital, other than cash $ 1,133 $ --
Machinery & equipment 2,552 --
Goodwill 72 --
Technology 2,236 --
-------- --------
Net cash used to acquire Tech Textiles Ltd. $ 5,993 $ --
======== ========
</TABLE>
The accompanying notes are an integral
part of these financial statements.
6
<PAGE> 7
BRUNSWICK TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(THOUSANDS)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
September September
-------------------------- -------------------------
1998 1997 1998 1997
------ ------ ------ ------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net income $ 260 $ 446 $1,196 $1,179
Foreign currency translation adjustments 93 -- 140 --
------ ------ ------ ------
Comprehensive income $ 353 $ 446 $1,336 $1,179
------ ------ ------ ------
</TABLE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A. CONSOLIDATED FINANCIAL STATEMENTS:
The consolidated financial statements included herein have been prepared by
the Company, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations, although the Company believes that
the disclosures are adequate to make the information presented not
misleading. In the opinion of management, the amounts shown reflect all
adjustments necessary to present fairly the financial position and results of
operations for the periods presented. All such adjustments are of a normal
recurring nature. The year-end consolidated balance sheet was derived from
audited financial statements, but does not include all disclosures required
by generally accepted accounting principles. It is suggested that the
financial statements be read in conjunction with the financial statements and
notes thereto included in the Company's latest annual report.
Foreign Currency Translation
All assets and liabilities of foreign operations are translated into U.S.
dollars at period end exchange rates. Income and expense items are translated
at average exchange rates during the period. Foreign exchange gains and
losses arising from transactions are reflected in net income.
B. ACQUISITION OF TECH TEXTILES INTERNATIONAL LTD.:
On March 2, 1998 the Company acquired the business and assets of Tech
Textiles International Ltd. ("TTI") based in Andover, UK from T&N plc, for
approximately $5.9 million in cash. The acquisition was made by the Company
and through the Company's recently formed wholly owned subsidiary in the UK,
Brunswick Technologies Europe Ltd. ("BTI-Europe") and is being accounted for
using the purchase method of accounting. A preliminary allocation of the
purchase price has been made to the assets and technology acquired. The
operations of BTI-Europe have been included in financial results of the
Company since March 2, 1998 and have been consolidated for the period ending
September 30, 1998.
CONTINUED
7
<PAGE> 8
BRUNSWICK TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(THOUSANDS)
- --------------------------------------------------------------------------------
C. INVENTORIES:
Inventories consist of the following components:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
(IN THOUSANDS)
<S> <C> <C>
Raw materials $1,335 $ 752
Work-in-process 952 706
Finished goods 2,379 1,850
------ ------
$4,666 $3,308
====== ======
</TABLE>
D NEW ACCOUNTING PRONOUNCEMENTS:
In June 1997, FASB issued SFAS No. 131, "Disclosure about Segments of an
Enterprise and related Information," which revised existing guidelines for
financial reporting of segment information. SFAF No. 131 is required to be
adopted for the fiscal year end reporting as of December 31, 1998. The
Company has not determined what effect, if any, this will have on its
financial statements.
In March 1998, the American Institute of Certified Public Accountants'
Accounting Standards Executive Committee issued Statement of Position ("SOP")
98-1, "Accounting for the Costs of Computer Software Developed or obtained
for Internal Use." The requirements of SOP 98-1 will be adopted for the
Company's fiscal year ending December 31, 1998 and are not expected to have a
material effect on the Company's financial statements.
In June 1998, FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and
reporting standards for derivative instruments, including certain derivatives
embedded in other contracts, and for hedging activities. SFAS 133 requires
that an entity recognizes all derivatives as either assets or liabilities in
the statement of financial position and measure those financial instruments
at fair value. The accounting for changes in the fair value of a derivative
under SFAS 133 depends on the intended use of the derivative and its hedging
destination. SFAS 133 is required to be adopted for the Company's year ending
December 31, 2000 and the Company has not yet determined the impact SFAS 133
will have on its results of operations, liquidity or financial position.
CONTINUED
8
<PAGE> 9
BRUNSWICK TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
(thousands)
E. EARNINGS PER SHARE:
The following is a reconciliation of the numerators and denominators of the
basic and diluted earnings per share calculations:
Three months ending September 30:
<TABLE>
<CAPTION>
(IN THOUSANDS EXCEPT PER SHARE INFORMATION)
1998 1997
----------------------------- --------------------------
NET PER NET PER
INCOME SHARES SHARE INCOME SHARES SHARE
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
Basic EPS $ 260 5,161 $ 0.05 $ 446 4,687 $ 0.10
Conversion of stock options 262 425
----- ----- ----- -----
Diluted EPS $ 260 5,423 $ 0.05 $ 446 5,112 $ 0.09
----- ----- ----- -----
</TABLE>
Nine months ending September 30:
<TABLE>
<CAPTION>
(IN THOUSANDS EXCEPT PER SHARE INFORMATION)
1998 1997
------------------------------ -----------------------------
NET PER NET PER
INCOME SHARES SHARE INCOME SHARES SHARE
------ ----- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS $1,196 5,157 $ 0.23 $1,123 3,967 $ 0.28
Conversion of stock options
and preferred stock 290 56 840
------ ----- ------ -----
Diluted EPS $1,196 5,447 $ 0.22 $1,179 4,807 $ 0.25
------ ----- ------ -----
</TABLE>
F. RECLASSIFICATIONS:
Certain prior year amounts have been reclassified to conform with the
presentation used in the 1998 financial statements.
9
<PAGE> 10
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Matters discussed in this Report 10-Q, including any discussion of or impact,
expressed or implied, on the Company's anticipated operating results and
future earnings per share contain forward-looking statements (identified by
the words "expect", "estimate", "project", "plans", "believe", and similar
expressions) that involve known and unknown risks and uncertainties. For
these statements the Company claims the protection of the safe harbor of the
private Securities Litigation Reform Act of 1995. The Company's results may
differ significantly from the results indicated by such forward-looking
statements. The Company's future results are dependent upon general economic
conditions, the availability and pricing of supplies of raw materials, the
ability to improve production capacity and scheduling, the ability to expand
current markets, competitions from competing product lines from both
fiberglass and non-fiberglass suppliers, the stability of its customers'
capital spending plans and the ability of the Company to obtain necessary
capital from time to time. These and other risks are detailed from time to
time in the Company's SEC reports, including Form 10K for the year ended
December 31, 1997.
Results of Operations
Net sales increased 35% in the third quarter of 1998 over the same period
last year, however there was a 6% decline in net sales when compared to the
second quarter of 1998. Excluding BTI-Europe's revenues, net sales increased
16% when compared to the third quarter of 1997 but declined 7% from the level
achieved in the second quarter of 1998. On a consolidated basis, gross profit
declined to 20.9% of net sales in the quarter from 25.3% in the same quarter
last year and 23.0% in the second quarter of 1998. Net income declined 42%
compared to the same period last year and 50% from the second quarter of 1998
driven largely by the decline in the gross margin. Fully diluted earnings per
share of $.05 was off from $.09 and $.10 earned during the same period last
year and the second quarter of 1998, respectively. The results of operations
for 1998 include the operations of Brunswick Technologies Europe Ltd.
("BTI-Europe", formerly known as Tech Textiles International, Ltd.) which was
acquired on March 2, 1998.
The decline in gross profit margin is largely due to lower than anticipated
production rates in the Brunswick, Maine plant. The production rates were
below expectations for several reasons:
- - The domestic backlog as of September 30, 1998 was up over 60% compared
to a year ago. Typically, the Company has seen seasonal softness of
demand by end users during the summer months. In 1998, however, much
of the anticipated softness did not occur. This served to push orders
for goods produced in the Brunswick, Maine facility to record levels in
the third quarter and the demand for certain styles of goods
outstripped available capacity. This meant that shorter production runs
were required to meet the immediate needs of customers due to the tight
supply of the requested materials. This cycle was first experienced in
the second quarter of the year and carried into the third quarter.
- - One machine was taken offline during the quarter for modifications to
expand its capabilities to produce a wider range of material. The machine
was brought back on line in September and is now producing goods that are
in higher demand. This is helping to reduce the required style changes on
other machines allowing for more efficient and longer production runs.
10
<PAGE> 11
- - Third, a relatively tight labor market in the Brunswick, Maine area has
driven up labor and training costs. Experienced machine operators have
been difficult to find which has also impacted efficiencies.
These factors combined to hold production rates below what were needed to
meet the demand for goods, particularly in the first two months of the
period. The lower production rates have also negatively impacted the gross
margin as purchases of raw material have fallen below the quarterly
thresholds needed to earn rebates from a major supplier. The rebates can
still be retroactively earned if an annual threshold is met by the Company
during the fourth quarter. However, it is uncertain if this threshold will be
achieved. At the beginning of 1998, the Company also experienced an increase
in raw stock prices which are negotiated annually. The Company has been
unsuccessful in completely passing the price increase through to the end user
and the shortfall was absorbed in the gross margin. Negotiations for 1999 raw
stock pricing have not been finalized so the impact on future margins cannot
be determined.
Late in the third quarter, the Company brought a new machine on line in the
Maine facility. In conjunction with the aforementioned modifications to
existing equipment, the additional capacity is being directed at goods which
are in high demand. Production rates improved in September and October and
the Company is cautiously optimistic that the downward trend in the gross
profit margin will be successfully reversed in the fourth quarter of 1998.
(Note that effective November, 1998 the Company began paying an additional
$10,500 per month for rent of its expanded facility in Maine. While this will
add to the overhead expense, the labor and overhead components of cost of
goods sold are relatively non-variable, or fixed expenses.)
Sales, General & Administrative expenses were up 2.4%, or $41,000 during the
third quarter in 1998 compared to the second quarter. The increase was due
primarily to increased wage expense (the Company filled a new corporate
controller position) and increased travel expense of senior management
associated with the integration and management of BTI-Europe. Research &
development ("R&D") expense was relatively unchanged during the period.
Interest income was also relatively unchanged during the period but continues
to be down substantially from 1997 when proceeds from the Initial Public
Offering ("IPO") were invested in marketable instruments. The remaining funds
from the IPO were used to acquire BTI-Europe in the first quarter of 1998.
Miscellaneous income was up modestly in the quarter as the Company continued
to benefit from reimbursement of R&D costs under various government programs
in the United States and in the United Kingdom. The major program in the
United States was substantially finalized in September 1998. This accounted
for approximately $29,000 in income in the third quarter and no further
income associated with this program is anticipated.
Financial Condition
September 30, 1998 compared to December 31, 1997.
The consolidated balance sheet at September 30, 1998 continues to reflect a
significantly different picture from that of fiscal year ended December 31,
1997. Most significant was the Company's acquisition of BTI-Europe and
associated "Euro-Technology" and goodwill which occurred in the first quarter
of 1998. This served to consume substantially all of the remaining proceeds
from the 1997 IPO. There was no substantial change in the Company's financial
condition in the third quarter. Cash flow from operations continues to be
adequate to meet the projected needs of the Company for at least the next
twelve months along with intermittent use of its unsecured $4.0 million line
of credit.
11
<PAGE> 12
Year 2000 Disclosure
The year 2000 (Y2K) issue is best defined as the ability of systems to
accurately process all date related information before, during and after
midnight on 12/31/99, including other 'magic' or 'null-set' dates such as
9/9/99, 1/11/11.
BTI (the Company) has undertaken an initiative (begun in the second quarter
of 1998) to assess the readiness of its internal systems in regards to
compliance with the pending millennium change. The Company has assigned
direct responsibility for the Y2K project to the corporate controller, in
conjunction with the chief financial officer. All sites, domestically and
internationally, are in the process of review for compliance.
The Company has identified mission critical versus non-mission critical
applications that have the potential to be adversely affected by the Y2K
problem. The internal review is focused on operational, process and
manufacturing related systems and network computer hardware and software. The
review is inconclusive to date. However, the Company anticipates completion
of the review by the end of 1998. The Company believes that any systems
identified as failing Y2K compliance testing will either be repaired or
replaced by the second quarter of 1999. It should be noted that the Company
is in the process of implementing a company wide Enterprise Resource Planning
(ERP) system supplied by a third party which is Y2K compliant. The impetus
for installing the new ERP system was the need for an enhanced, fully
integrated, management information system to support continued growth, not
specifically due to Y2K exposure. The company continues to capitalize the
costs of the ERP consistent with GAAP under Management Information Systems,
which totaled $345,200 as of September 30, 1998. The implementation of this
ERP system substantially addresses Y2K compliance issues related to our
financial and manufacturing data collection and reporting systems.
In addition to assessing our internal systems, the company is reviewing
suppliers, service providers and customers whose systems failures as a result
of Y2K non-compliance could have a significant impact on the Company's
continued business operations. The Company is principally dependent on a
small number of suppliers for the majority of its raw material. The Company
has initiated communications to directly address these suppliers' Y2K
preparedness. However, the Company has limited or no control over the actions
of these third party suppliers to address and resolve their Y2K issues. Any
failure of these principal third party suppliers to resolve their Y2K issues
could have a materially adverse effect on continued uninterrupted business
operations.
It is the company's goal to be Y2K system compliant and to have performed a
thorough assessment of critical third parties by the end of the second
quarter of 1999. Based on the results of the internal compliance initiative
and the assessment of third parties preparedness for the millennium change,
management will determine the extent to which contingency planning is
necessary. At this time, based on management's opinion of overall risk, no
formal contingency planning has been initiated.
It is management's opinion that the Company's overall internal, as opposed to
supplier, risks associated with the Y2K problem are low. The implementation
costs associated with the ERP project are the only material costs incurred to
date in system software that would be reviewed as part of the Company's
Y2K project. The company has not incurred any other material costs related to
the Y2K project, and it is anticipated that future costs associated with
ensuring compliance will not exceed $50,000 and will be funded by cash flows
generated from ongoing business operations. However, these expectations are
subject to uncertainties. Although the Company expects that its internal
systems will be Y2K compliant by the end of 1999, there can be no assurances
that system failures will not occur,
12
<PAGE> 13
or that such failures will not have a materially adverse effect on continued
uninterrupted business operations.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable
PART II. OTHER INFORMATION.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibit 27 - Financial Data Schedule
(b) Exhibit 10 - Amended and Restated Lease Agreement Between Brunswick
Development Corporation and Brunswick Technologies Inc. Dated June
5, 1998
13
<PAGE> 1
================================================================================
AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
BRUNSWICK DEVELOPMENT CORPORATION
AND
BRUNSWICK TECHNOLOGIES, INC.
DATED: JUNE 5, 1998
================================================================================
<PAGE> 2
TABLE OF CONTENTS
1. LEASED PREMISES........................................................ 2
2. TERM................................................................... 4
3. RENT................................................................... 4
4. UTILITIES.............................................................. 6
5. TAXES AND MAINTENANCE EXPENSES......................................... 6
6. USE AND SIGNAGE........................................................ 7
7. COMPLIANCE WITH LAWS................................................... 8
8. FINANCIAL COVENANTS.................................................... 8
9. ALTERATIONS AND IMPROVEMENTS........................................... 8
10. MAINTENANCE AND REPAIRS................................................ 9
11. MECHANIC'S LIENS....................................................... 10
12. QUIET ENJOYMENT........................................................ 10
13. ASSIGNMENT OR SUBLETTING............................................... 10
14. EMINENT DOMAIN......................................................... 11
15. INSURANCE.............................................................. 11
16. CASUALTY LOSS.......................................................... 12
17. TRADE FIXTURES......................................................... 13
18. ACCESS TO LEASED PREMISES.............................................. 13
19. OPTION TO PURCHASE THE LEASED PREMISES................................. 13
20. END OF TERM............................................................ 15
21. RELEASE AND INDEMNITY.................................................. 15
22. DEFAULT................................................................ 16
23. REMEDIES............................................................... 17
24. HOLDOVER............................................................... 18
25. SUBORDINATION.......................................................... 18
26. NO IMPLIED SURRENDER OR WAIVER......................................... 19
27. NO REPRESENTATIONS BY LANDLORD OR TENANT; ENTIRE AGREEMENT............. 19
<PAGE> 3
28. AMENDMENT OR MODIFICATION............................................... 19
29. DEFINITION OF LANDLORD.................................................. 20
30. ESTOPPEL CERTIFICATES................................................... 20
31. LIMITATION OF LANDLORD'S LIABILITY...................................... 20
32. SEVERABILITY............................................................ 20
33. CAPTIONS, GENDER, AND NUMBER............................................ 20
34. NOTICE.................................................................. 21
35. ADDITIONAL RIGHTS....................................................... 21
36. RECORDING............................................................... 21
37. BINDING EFFECT.......................................................... 21
38. GOVERNING LAW........................................................... 21
<PAGE> 4
LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (this "Lease") dated as of June
5, 1998 is by and between Brunswick Development Corporation, a Maine
corporation, with a principal office in Brunswick, Maine ("Landlord") and
Brunswick Technologies, Inc., a Maine corporation with a principal office in
Brunswick, Maine ("Tenant"). It amends, restates and replaces a lease between
the Landlord and Tenant dated August 1, 1995 and any and all subsequent
amendments to that lease.
W I T N E S S E T H:
WHEREAS, the Landlord and Tenant entered into a lease dated August 1, 1995
(the "Primary Lease") for land more particularly described below (the "Real
Property"), improvements (the improvements and any subsequent improvements
hereinafter referred to as the "Improvements"), and a building (the building
including any current or future expansions of the building hereinafter referred
to as the "Building") located at 43 Bibber Parkway in Brunswick, Maine (the Real
Property, Improvements and Building hereinafter collectively referred to as the
"Leased Premises"); and
WHEREAS, the parties executed a "Second Lease Agreement" dated December 8,
1995 and a "Third Lease Agreement" dated December 29, 1995 both of which allowed
the Tenant occupation of part of the Building prior to the full completion of
its construction; and
WHEREAS, the Primary Lease has been amended by a "First Amendment to
Primary Lease Agreement" dated June 1, 1997 (which together with the Primary
Lease, the "Original Lease") which among other things increased the square
footage leased from 50,000 to 52,400 to recognize improvements to the Building
made by the Landlord in converting storage space to office space; and
WHEREAS, the Landlord and Tenant now wish to expand the floor space of the
Building by approximately 24,600 square feet (the "Expansion") which additional
space, for purposes of calculating rent under the lease will increase the square
footage leased to Tenant to 77,000; and
WHEREAS, the Landlord and the Tenant wish to make modifications to the
Original Lease to incorporate new lease terms related to the Expansion;
WHEREAS, the Landlord and Tenant wish to amend and restate the Original
Lease in its entirety in this Lease agreement:
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NOW THEREFORE, the parties agree as follows:
1. LEASED PREMISES.
a. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Real Property described on Exhibit A attached hereto and
incorporated herein, together with a Building and Improvements erected thereon
in accordance with mutually agreed upon design specifications and building plans
and occupied by the tenant as of the date hereof. The construction contract for
the current occupied building is attached as Exhibit B and the project costs are
attached as Exhibit C.
Further, Landlord hereby leases to the Tenant and Tenant hereby leases from
the Landlord the Expansion to be constructed in accordance with mutually agreed
upon design specifications and building plans (the "Expansion Plans") on the
terms and conditions set out below.
b. Tenant and Landlord shall cooperatively develop Expansion Plans for
the Expansion. Tenant shall assist the Landlord in selecting a general
contractor to construct the Expansion, and assist the Landlord in negotiating
all the terms of a fixed price construction contract to construct the Expansion
which shall provide for total Project Costs not to exceed $1,125,000 and shall
be in the form attached hereto as Exhibit D. "Expansion Project Costs" are those
costs identified in Exhibit E attached hereto and incorporated herein by
reference. Any development, construction or other Expansion Project Costs
associated with the Expansion in excess of $1,125,000 shall be the sole
responsibility and obligation of Tenant, unless the Landlord expressly assumes
responsibility for additional costs in a written agreement signed by an
authorized representative of Landlord expressly stating that the $1,125,000
responsibility of the Landlord should be increased by a specific dollar amount.
Landlord and Tenant shall appoint a construction manager acceptable to both
parties to oversee the construction of the Expansion (the "Construction
Manager").
All change orders must be approved in writing by both the Landlord and the
Tenant. No change orders shall be effective without such mutual written
approval. Approval of change orders by the Landlord shall not constitute a
commitment to pay Project Expansion Costs in excess of $1,125,000.
Any and all requisitions shall be reviewed at regularly scheduled meetings
of the general contractor, the Construction Manager and representatives of the
Landlord and the Tenant. Requisitions must be approved by the Landlord and the
Tenant. In the event of any dispute between the Landlord and Tenant regarding
the approval of any requisition which is not resolved following good faith
discussions so as to allow timely payment of the requisition, the dispute shall
be submitted to the Construction Manager for immediate, final, binding and
non-appealable resolution. Payment of any requisition shall not constitute
acceptance of any work not performed by accordance with the construction
contract.
Landlord shall be responsible for obtaining, either directly or through the
general contractor, all approvals, permits and/or licenses necessary for the
construction and operation of the premises, and shall provide copies of the same
to Tenant. Landlord shall deliver to Tenant final lien waivers from all
contractors, subcontractors, or materialmen that provided services or materials
in connection with the construction of the Expansion, together with a written
statement from the general contractor setting forth the names of all such
contractors, subcontractors, and
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materialmen. In addition, before executing and delivering any contracts related
to services or materials that are in addition to or are supplemental to the
construction contract, Landlord shall provide copies of the same to Tenant for
approval. Landlord acknowledges that Tenant's approval will be dependent, in
part, on whether the Landlord's rights and warranties pursuant to such contracts
are assignable to and inure to the benefit of Tenant.
c. Landlord expressly disclaims all warranties, whether express or
implied, relating in any way to construction of the Building, the Expansion or
any other improvements made by the Landlord including, without limitation, any
warranties as to workmanship, materials, safety or fitness for a particular
purpose. Landlord shall assign to Tenant any warranties of all architects,
engineers and other professionals, all general contractors, subcontractors,
suppliers and other vendors, and any other party providing services labor, or
materials to Landlord relating to construction of the Building, the Expansion or
any other improvements made by the Landlord. Landlord shall conditionally assign
to Tenant with the consent of the General Contractor, its rights under the
construction contract, which assignment shall become effective upon failure of
Landlord to pursue any claim or right of action thereunder. Tenant understands
that the Construction Manager shall be responsible for inspection of the
Building, the Expansion or any other improvements made by the Landlord and that
Landlord will not inspect the Building, the Expansion or any other improvements
made by the Landlord for compliance with the Construction Plans, or the
Expansion Plans or for any other purpose. All risk relating to construction of
the Building, the Expansion or any other improvements made by the Landlord as
between Landlord and Tenant, except for payment of the initial $1,700,000 in
Project Costs and $1,125,000 in Expansion Project Costs, shall be borne by
Tenant, and Tenant shall accept the Leased Premises "as is" after Landlord has
funded the $1,700,000 in Project Costs and $1,125,000 in Expansion Project Costs
required by this Lease. The construction contract for the Expansion shall
require that the general contractor maintain builders' risk insurance, general
liability insurance and workers' compensation insurance with coverage
satisfactory to the Landlord and the Tenant and that the General Contractor
provide a payment and performance bond securing the obligations of the General
Contractor under the construction contracts. Upon termination or earlier
expiration of this Lease, for any reason whatsoever, all warranties and other
rights assigned to Tenant hereunder shall revert to Landlord without necessity
of any further action by Tenant.
d. Tenant shall have access to the Leased Premises to inspect the
Expansion at any and all times as construction progresses subject to the
following terms and conditions:
(1) Any such entry upon the Leased Premises shall be in compliance
with all insurance regulations of Landlord and of contractors of Landlord;
(2) Tenant shall not interfere with any work being done by Landlord
or its agents;
(3) Any communication from Tenant with respect to the construction of
the work shall be directed through the Construction Manager; Tenant shall not
communicate with Landlord's contractors with respect to any such work, except
through the Construction Manager;
(4) Any entry by Tenant or its employees, agents, or contractors
shall be at its and their own risk and the provisions of Section 21 hereof with
respect to indemnification and release shall apply to any such entry.
TO HAVE AND TO HOLD the Leased Premises for the term and rental hereinafter
provided and upon the conditions, covenants and agreements hereinafter set
forth, SUBJECT
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<PAGE> 7
TO THE OPERATION AND EFFECT OF ANY AND ALL INSTRUMENTS AND MATTERS OF RECORD.
2. TERM.
a. The term of this Lease (the "Term") shall be for fifteen (15)
Lease Years, commencing on January 1, 1996 (the "Commencement Date").
3. RENT.
a. Tenant covenants and agrees to pay to Landlord a net base rental
per square foot of the Building for the Term as follows:
<TABLE>
<CAPTION>
LEASE RENT PER SQUARE ANNUAL
YEAR FOOT BASE RENT MONTHLY INSTALLMENT
<S> <C> <C> <C>
1996 $3.63/sq. ft. $181,500 $15,125.00 (a)
1997 3.63/sq. ft. 181,500 15,125.00 (b)
1997 3.63/sq. ft. 190,212 15,851.00 (c)
1998 3.63/sq. ft. 190,212 15,851.00 (d)
1998 4.10/sq. ft. 315,700 26,308.33 (e)
1999 4.10/sq. ft. 315,700 26,308.33
2000 4.10/sq. ft. 315,700 26,308.33
2001 4.20/sq. ft. 323,400 26,950.00
2002 4.30/sq. ft. 331,100 27,591.67
2003 4.40/sq. ft 338,800 28,233.33
2004 4.50/sq. ft. 346,500 28,875.00
2005 4.60/sq. ft. 354,200 29,516.67
2006 4.70/sq. ft. 361,900 30,158.33
2007 4.80/sq. ft. 369,600 30,800.00
2008 4.90/sq. ft. 377,300 31,441.67
2009 5.00/sq. ft 385,000 32,083.33
2010 5.10/sq. ft 392,700 32,725.00
</TABLE>
(a) Rent for January, 1996 was prorated to reflect partial month.
(b) Prior to June 1, 1997.
(c) On and after June 1, 1997.
(d) Prior to substantial completion of the Expansion.
(e) Beginning the 1st of the month following substantial completion of the
Expansion.
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<PAGE> 8
For purposes of calculating base rent, the Building shall be conclusively
presumed to contain 50,000 square feet prior to June 1, 1997, 52,400 square feet
on and after June 1, 1997 and 77,000 square feet upon and after substantial
completion of the Expansion, notwithstanding any deviation in actual dimensions.
Substantial completion of the Expansion shall mean that the Expansion has been
completed to a stage that a certificate of occupancy is issuable by the Town of
Brunswick, Landlord has obtained all lien waivers from all contractors and
materialmen and Tenant can occupy and utilize the Expansion for its business
subject to typical "punch list" items that would not materially interfere with
tenant's operations as determined by the Construction Manager. The foregoing
does not constitute any warranty or other assurance as to the adequacy of design
of the Building or the Expansion for Tenant's intended or actual utilization.
b. The annual base rent payable hereunder shall be payable in equal
monthly installments in an amount equal to 1/12 of the annual base rent for the
applicable Lease Year. The first monthly installment of base rent shall be due
and payable upon the Commencement Date. Thereafter, the monthly installments of
rent shall be due and payable on the first (1st) day of each month in advance.
In the event Tenant has not paid base rent in full by 4:30 p.m. Eastern Standard
Time on the fifth day of each month, a surcharge shall be automatically imposed
upon Tenant in an amount equal to five percent (5%) of the base rent not timely
paid, and such surcharge shall thereafter be deemed base rent for all purposes
under this Lease. Any monthly installment of base rent (including any applicable
surcharge), or any portion thereof, not paid on or before the tenth (10th) day
of each month shall bear interest accruing from the 10th day of that month until
payment at a rate of eighteen percent (18%) per annum. Interest accrued on late
payments shall constitute base rent for all purposes under this Lease. In the
event Landlord's offices are closed on the 1st day of the month, rent shall be
due the first business day thereafter. All payments of base rent shall be paid
in advance, on the date specified above, without notice, setoff or deduction, in
lawful money of the United States of America at the address of Landlord as set
forth in Section 34 of this Lease, or at such other place as Landlord may from
time to time designate in writing. Base rent shall be prorated for any portion
of a calendar month within the Term.
c. The term "Lease Year" shall mean the twelve calendar month period
beginning on January 1 and ending on December 31.
d. It is the intention of the parties hereto that the rent payable
hereunder shall be net to Landlord so that this Lease shall yield to Landlord
the net annual rent specified herein during the Term, and that all costs,
expenses and obligations of every kind and nature whatsoever relating to the
Leased Premises shall be paid by Tenant, except (i) debt service on Landlord's
financing for the Leased Premises, and (ii) as otherwise expressly set forth
herein.
e. This Lease shall terminate at the end of the Term without the
necessity of any notice. Tenant shall, at its expense, at or prior to the
expiration of the Term or any earlier termination of this Lease (i) promptly
surrender to Landlord possession of the Leased Premises (including any fixtures
or other improvements) in good order and repair (ordinary wear and tear
excepted) and broom clean, (ii) remove therefrom Tenant's signs, furnishings,
trade fixtures, and equipment which are used in conducting Tenant's business and
are not owned by Landlord, and (iii) repair any damage to the Leased Premises
caused by such removal.
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<PAGE> 9
4. UTILITIES.
Utility connections to the Leased Premises shall be provided in the
Building and the Expansion design as a project component. Tenant shall directly
pay for all heat, electricity, water, sewerage, propane and any and all other
utilities supplied to the Building and any expansion.
5. TAXES AND MAINTENANCE EXPENSES.
a. Tenant agrees to pay before delinquency all real estate taxes
levied against the Building and the Expansion and the land on which the Leased
Premises are located, which land is designated as Tax Lot 59 on Map 17 of the
Town of Brunswick dated April 1, 1994 (the "Tax Lot"). Tenant's liability to pay
the real property taxes shall be prorated on the basis of a 365-day year to
account for any fractional portion of a fiscal tax year included in the Term.
Tenant shall have the right to dispute such taxes and charges in good faith,
provided that Tenant shall notify Landlord of the dispute prior to delinquency
and take all necessary measures to assure that no lien or other interest in, to
or upon the Leased Premises in favor of any government authority shall arise as
a result thereof. If any such liens or interests do arise, the Tenant will take
all necessary measures to remove such liens at least 90 days prior to any
forfeiture of title.
b. Tenant shall pay before delinquency any and all personal property
taxes, assessments, license taxes, sales and use taxes, employment taxes and
other charges levied, assessed or imposed and which become payable during the
Term upon Tenant's operations or upon the equipment, furniture, appliances or
trade fixtures and other personal property of Tenant of any kind installed or
located on the Leased Premises; provided, however, that Tenant shall have the
right to dispute such taxes and charges in good faith, provided that Tenant
shall notify Landlord of such dispute prior to delinquency and take all
necessary measures to assure that no lien or other interest in, to or upon the
Leased Premises in favor of any government authority shall arise as a result
thereof. If any such liens or interests do arise, the Tenant will take all
necessary measures to remove such liens at least 90 days prior to any forfeiture
of title.
c. Tenant shall be responsible for the payment of all costs and
expenses incurred from the Commencement Date through the end of the Term that
are associated with or related to the Leased Premises and the use, occupancy,
operation, maintenance and repair thereof. Debt service on funds borrowed to
construct the Building or Expansion, or any refinancing thereof, shall not be
included in expenses.
d. In the event of any State or local limitation on real or personal
property tax rates or amounts, or in the event any such taxes are hereafter
repealed or eliminated, then Tenant shall pay to Landlord an amount equal to the
real and personal property taxes that would have been paid with respect to the
Leased Premises (and personal property located therein) under existing law as of
the date hereof, had such limits or changes not been adopted or imposed, using
as the rate and valuation for such tax the rate and valuation in effect as of
the date of such change. The Town shall reasonably and in good faith determine
any amount to be paid by Tenant to Landlord pursuant to this Section 5(d),
providing appropriate credit for any amounts received by the municipality from
the State or under authority of the State to compensate the municipality for the
loss of tax revenue as contemplated under this Section 5(d).
e. This section shall be effective beginning with the assessment
based on the April 1, 1999 property valuation. In the event the personal
property tax assessed to the Tenant by the Town of Brunswick, or the combined
amount due to the Town and the Landlord from the personal property tax
calculation under section 5(d) above, in any July 1 - June 30 fiscal period
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<PAGE> 10
of the Town, is less than $100,000, the Tenant shall pay to the Landlord an
amount equal to the difference between the personal property tax assessed, or
the combined amount from the personal property tax calculation under section
5(d), and $100,000. This payment shall be made by the Tenant in equal
installments within ten days of the Town's tax due date(s). In the event the
personal property tax assessed to the Tenant by the Town, or the combined amount
due to the Town and the Landlord from the personal property tax calculation
under section 5(d) above is more than $150,000, the Landlord shall refund to the
Tenant an amount equal to the difference between the tax assessed, or the
combined amount from the personal property tax calculation under section 5(d),
and $150,000. This refund shall be paid to the Tenant in equal installments
within ten days of the Tenant's tax payment(s) to the Town.
f. The total amount of real and personal property taxes paid by the
Tenant to the Town plus any additional payments required under paragraphs d or e
above shall be the computed to produce the highest payments, in total, to the
Town and the Landlord.
6. USE AND SIGNAGE.
a. The Premises shall be used for any lawful purpose consistent with
applicable zoning requirements but subject to any limitations imposed under
Section 144, Section 147 and Section 148 of the Internal Revenue Code of 1986,
as amended, necessary to ensure that interest on the Town's 1995 general
obligation bonds and 1998 general obligation bonds, the proceeds of which were
used to construct the Building, Improvements, and the Expansion, be and remain
excluded from the gross income of the holders thereof for purposes of federal
income taxation. Tenant shall use the Leased Premises in a careful, safe and
proper manner and shall not use or permit the Leased Premises to be used for any
purposes prohibited by the laws of the United States or the State of Maine or
the ordinances of the Town of Brunswick. Tenant shall keep the Leased Premises
in a neat and sanitary condition and shall not commit or permit any nuisance or
waste on or in, or about the Leased Premises. Tenant shall dispose of all
debris, trash and waste in compliance with all applicable laws and regulations.
b. Tenant may affix and maintain any signs that are consistent with
applicable zoning requirements. Any such signs shall be installed and maintained
by Tenant at its sole cost and expense and shall comply with all laws,
ordinances or regulations applicable thereto.
c. In addition to and not in limitation of the other provisions of
this Lease, Tenant covenants that it will not introduce or permit to be
introduced or located on the Leased Premises any Hazardous Materials, as
hereafter described, except in accordance with any applicable licenses, permits,
laws, rules and regulations and that Tenant will not violate any Environmental
Laws as hereafter described in connection with Tenant's use, maintenance or
operation of the Leased Premises and Tenant shall, and hereby does totally and
completely defend, save, and hold harmless Landlord, its employees, agents,
officers, trustees, and directors, shareholders, partners, successors and
assigns (the "Indemnified Landlord Parties") from and against, and shall
promptly pay to or reimburse the Indemnified Landlord Parties for, all claims,
demands, actions, losses, penalties, costs, expenses and damages, including all
attorneys fees and court costs, investigation and laboratory fees, clean-up and
removal costs incurred by or asserted against the Indemnified Landlord Parties
by reason of the inaccuracy or breach of the covenant contained in this
subparagraph. Upon termination of this Lease, Tenant covenants and agrees to
remove any and all Hazardous Materials introduced by it in violation of this
Lease at its sole expense. Tenant acknowledges and agrees that the expiration or
sooner termination of this Lease shall not relieve or release Tenant of any
legal liability and responsibility whether by way of damages, penalties,
remedial actions or otherwise for unlawful discharges of Hazardous Materials. As
used herein, "Hazardous Materials" shall mean any flammable explosives,
radioactive materials, hazardous materials, hazardous waste, petroleum or
petroleum products,
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<PAGE> 11
hazardous matter, hazardous or toxic substances, or toxic pollutants, oil or
waste oil as any of those terms are used or defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ss.9601, ET SEQ.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. ss.2802, ET SEQ.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. ss.6901, ET SEQ.), applicable Maine statutes or any similar
federal, state or local law, or in the regulations adopted and publications
promulgated pursuant thereto, including all amendments to such laws and
regulations and all supplements or successors thereto (such Acts, statutes, laws
and regulations together with the Acts, statutes, laws and regulations referred
to hereinafter in this subparagraph being sometimes referred to herein as
"Environmental Laws"), or any other pollutants, contaminants, substances or
materials that may constitute a hazard, peril or threat to the health of
persons, animals, plant life or the environment; excepting, however, "Hazardous
Materials" shall not for the purposes hereof include any materials or substances
in amounts or concentrations insufficient to require any remedial action under
any applicable law, order, rule or regulation of the federal, state or local
governments.
7. COMPLIANCE WITH LAWS.
Tenant covenants and agrees that during the Term, it shall promptly comply
with all present and future laws, ordinances, orders, rules, regulations and
requirements of the federal, state and local governments or any of their
departments, bureaus, boards, commissions and officials thereof with respect to
the Leased Premises or the use or occupancy thereof, including without
limitation, at Tenant's cost, to alter, maintain or restore the Leased Premises
in compliance with all laws relating to the condition, use or occupancy of the
Leased Premises, whether said work is structural or nonstructural, foreseen or
unforeseen and whether said compliance shall be ordered or directed to or
against Landlord or Tenant, or both.
8. FINANCIAL COVENANTS.
Tenant covenants and agrees that during the Term, it shall furnish to
Landlord:
a. Promptly after becoming available and in any event within ninety
(90) days after the close of each fiscal year of Tenant, the audited financial
statements of Tenant; and
b. Within forty-five (45) days after the end of each fiscal year
quarter, an eighteen (18) month cash flow projection for Tenant, including a
line item for rental payments on the Leased Premises, certified by Tenant's
Chief Financial Officer as being an accurate projection to the best of his or
her knowledge or ability; and
c. Such other information and materials as may be necessary for the
Landlord to timely comply with any and all federal securities laws or rating
agency requirements relating to primary or secondary market disclosure in
connection with Landlord's financing of the Leased Premises.
9. ALTERATIONS AND IMPROVEMENTS.
a. Tenant acknowledges that Landlord is not responsible for making
any Tenant improvements except as provided in Section 1 hereof. Tenant shall not
make any improvements, alterations, additions, or installments to the Leased
Premises with a cost in excess of $50,000 individually or in the aggregate
during any 365 day period, without Landlord's prior written approval, which
approval will not be unreasonably withheld. Approval under this Section 9(a)
shall not constitute approval under Section 9(c) unless such approval
specifically so states. In the event Tenant desires to expand the Building
during the Term of this Lease,
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<PAGE> 12
Landlord and Tenant agree to discuss how such an expansion might be
accommodated. This provision does not apply to trade fixtures governed by
Section 17 hereof.
b. Tenant hereby releases and agrees to hold Landlord forever
harmless from any and all claims and liabilities of any kind and description
which may arise out of or be connected in any way with improvements,
alterations, additions or installations on or to the Leased Premises made by or
under the direction of Tenant. Tenant shall pay the cost of all such
improvements, alterations, additions, or installations and also the cost of
painting, restoring or repairing the Building occasioned by such improvements,
alterations, additions, or installations.
c. Any improvements, alterations, additions or installations made by
Tenant at Leased Premises shall comply with all insurance requirements and all
laws, ordinances, rules and regulations of all applicable governmental
authorities, shall be constructed in a good and workmanlike manner, and shall
immediately become the property of Landlord and surrendered to Landlord upon the
expiration or termination of this Lease, unless required to be removed as
provided in the next sentence. Upon expiration or other termination of this
Lease, Tenant shall, upon written demand by Landlord, at Tenant's sole cost and
expense, promptly and with all due diligence remove any alterations, additions
or improvements made by Tenant and designated by Landlord to be removed and
shall repair any damage to the Building caused by such removal; provided,
however, that Tenant shall not be required to remove any structural improvements
to the Leased Premises so long as Landlord agrees in writing specifically
referencing this Section 9(c) in advance of installation that such structural
improvements may remain at the conclusion of the Term. This provision does not
apply to trade fixtures governed by Section 17.
10. MAINTENANCE AND REPAIRS.
a. Tenant shall take good care of the Leased Premises and the
fixtures and improvements therein or thereon and, at its sole cost and expense,
shall make repairs, restorations or replacements as and when needed to preserve
them in good working order, condition and repair. Tenant specifically agrees to
keep in good order, condition, and repair the roof, foundations, heating, air
conditioning, ventilating, and electrical systems and equipment, and other
structural portions of the Building. Except as specifically herein otherwise
provided, Tenant also agrees that from and after the date that possession of the
Leased Premises is delivered to Tenant, and until the end of the Term of this
Lease, Tenant will keep neat and clean and maintain in good order, condition,
and repair all nonstructural portions of the Building including, but not limited
to, the exterior and interior portions of all doors, all plumbing and sewerage
facilities, fixtures, interior walls, floors, ceilings, cleaning and replacement
as necessary of all windows, maintenance and repair of all interior and exterior
signage, maintenance of all landscaping, parking areas, sidewalks and driveways,
including removal of snow and ice, all exterior lighting, security systems, and
any and all other improvements on the Leased Premises. Tenant shall, at Tenant's
expense, repaint and refurbish the Building and any part and portion thereof
from time to time in order to assure that the same are kept in a tenantable and
attractive condition throughout the Term of this Lease.
b. If Tenant fails to make any repairs, restorations or replacements
as required by this Lease, Landlord may, but shall not be obligated to, make
such repairs, restorations or replacements, or perform such maintenance, at the
expense of Tenant and such expense shall be due as additional rent. Landlord
shall provide Tenant with reasonable advance notice prior to exercising its
right to make repairs or replacements hereunder. Tenant shall comply with all
provisions of Section 18 of this Lease in connection with such repairs,
restorations and replacements. Landlord shall exercise such right so as to cause
a minimum of disruption to Tenant's operations, provided that there shall be no
allowance to Tenant for diminution of the rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to or
interruption of business arising from Landlord, Tenant
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<PAGE> 13
or any other party making any such repairs, restorations or replacements,
alterations, additions or improvements in or to any portion of the Leased
Premises.
11. MECHANIC'S LIENS.
Tenant shall pay or cause to be paid all costs for work done by it or
caused to be done by it on the Leased Premises and Tenant shall keep the Leased
Premises free and clear of all mechanic's liens and other liens on account of
work done for Tenant or persons claiming under it. In the event a lien is placed
upon the Premises, Tenant shall cause the lien to be removed or bonded within 30
days Tenant shall indemnify and hold Landlord harmless against any liability,
loss, damage, costs or expenses, including attorneys' fees, on account of any
claims of any nature for work performed for, or materials or supplies furnished
to, Tenant or persons claiming under it. Landlord may require, at Landlord's
sole option, as a condition to its consent to any such work with a total cost in
excess of $50,000, that Tenant shall provide to Landlord, at Tenant's sole cost
and expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of the improvements, additions, or alterations that
Tenant desires to make.
12. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that upon Tenant paying the rent
hereunder and observing and performing all the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed, Tenant may
peaceably and quietly enjoy the Leased Premises subject, nevertheless, to the
terms and conditions of this Lease, including without limitation the
subordination provision of Section 25 hereof.
13. ASSIGNMENT OR SUBLETTING.
a. Tenant shall not, either voluntarily or by operation of law,
transfer, pledge, hypothecate, mortgage or assign this Lease or any interest
herein, or sublet the Leased Premises or any portion thereof, or otherwise allow
or suffer the Leased Premises or any portion thereof to be used by any other
person, without the prior written consent of Landlord in each instance, which
consent will not be unreasonably withheld. In connection with any proposed
assignment or sublease, Landlord reserves the right to consider in connection
with providing such consent, among such other factors as it deems appropriate
the personal property tax revenue to be generated by any such assignee or
subtenant. Any such attempted assignments, subletting or occupancy without
Landlord's prior written consent shall be void and shall confer no rights
whatsoever on any party and shall, at Landlord's option, constitute a default
hereunder. The consent by Landlord to an assignment, subletting, occupancy or
use arrangement shall not relieve Tenant from primary liability hereunder or
from the obligation to obtain the express consent in writing of Landlord to any
further assignment, subletting, occupancy or use arrangement. If Tenant shall
request Landlord's consent to a sublease, assignment or use agreement hereunder,
Tenant shall pay Landlord's expenses, including legal fees, incurred in
connection with the processing and reviewing of documents necessary to evaluate
such request. Tenant's liability shall be reduced by any excess rent actually
received by Landlord pursuant to Section 13(b).
b. Any consideration received by Tenant on account of any such
assignment or any rent under a sublease or occupancy exceeding the rent in
effect during the Lease Year in which the sublease or occupancy becomes
effective shall be paid in full by Tenant to Landlord upon receipt of same. In
the event of any default under this Lease, total damages due from
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Tenant to Landlord shall be reduced by the cumulative excess rent previously
received by Landlord under this Section 13(b).
c. Tenant shall have the right without the prior written consent of
the Landlord to assign this Lease to any affiliated entity. An affiliated entity
is any entity that controls, is controlled by, or is under common control with
Tenant. Control means voting control through equity interest or other
contractual commitment providing effective control over management of the
Tenant's principal business affairs.
d. The Landlord agrees to consent to collateral assignment, pledge
or other mortgaging of Tenant's leasehold interest upon terms and conditions
reasonably acceptable to the Landlord, which consent will not be unreasonably
withheld.
14. EMINENT DOMAIN. a. If the entire Building is taken by any public
authority under the power of eminent domain or taken in any manner for any
public or quasi-public use or conveyed in lieu of such taking, or if any portion
of the Building is so taken or conveyed so as to render the Leased Premises
untenantable or unsuitable for manufacturing processes of Tenant, then the term
of this Lease shall cease as of the day possession shall be taken by such public
authority or the date of the conveyance and the rent and other sums payable
hereunder shall be duly apportioned as of the date of such taking or conveyance.
If any portion of the Building shall be taken or conveyed as described above,
but such taking or conveyance does not render the Leased Premises untenantable,
then this Lease shall continue in full force and effect. All damages awarded for
such taking under the power of eminent domain or any like proceedings shall
belong to and be the property of Landlord. Tenant hereby waives all claims
against Landlord and the condemning authority for or on account or incident to
such taking, except Tenant may separately claim and recover from the condemning
authority, but not from Landlord, the value of the remaining term of the Lease
and the value of any personal property of Tenant that Tenant was entitled to
remove pursuant to the Lease.
b. If only a portion of the Building is taken by any public
authority under power of eminent domain or taken in any manner for any public or
quasi-public use or conveyed in lieu thereof and this Lease is not terminated
pursuant to Subsection 14(a), this Lease shall continue in full force and effect
and Landlord shall make an equitable adjustment of the rent payable by Tenant
for the tenantable portion of the Leased Premises effective the date of taking
or conveyance.
15. INSURANCE. a. At all times during the Term of this Lease, Tenant shall,
at its own expense, maintain (i) fire and hazard insurance on the Building in an
amount at least equal to the replacement value thereof, (ii) commercial general
liability insurance for claims for personal injury or death and property damage
having such limits as to each as are reasonably required by Landlord from time
to time, but in any event not less than One Million Dollars ($1,000,000) for
bodily injury to or death of any one person during any one occurrence, Three
Million Dollars ($3,000,000) for bodily injury to or death of all persons in any
one occurrence, and Five Hundred Thousand Dollars ($500,000) for property damage
or destruction during any one occurrence; provided that every three (3) years
during the Term, the Landlord may adjust the foregoing coverage limits to a
commercially reasonable level; and (iii) all risk property insurance on all
leasehold improvements and on all personal property and trade fixtures of Tenant
to the extent of at least ninety percent (90%) of their insurable value;
products liability insurance with respect to any items manufactured or assembled
by Tenant. Each such policy (i) shall name as the insureds thereunder, as their
interests may appear, Landlord and Tenant and, at Landlord's request, any
mortgagee of Landlord's interest in the Property (and supply such mortgagee with
a Maine Standard Mortgagee Endorsement, if so requested); and (ii) shall, by its
terms, be considered primary and non-contributory with respect to any other
insurance carried by Landlord or its successors and assigns; and (iii) shall by
its terms be cancelable or altered only on at least
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thirty (30) days prior written notice to Landlord (and at Landlord's request any
mortgagee of Landlord); and (iv) shall be issued by an insurer reasonably
acceptable to Landlord. Tenant, at Tenant's sole expense, shall comply with all
rules, orders, regulations or requirements of the board of fire underwriters, or
any other similar body, having jurisdiction over the Leased Premises. No
adjustment of any and all claims shall be made without the prior written
approval of the Landlord, which may be withheld in the Landlord's sole
discretion.
b. Upon substantial completion of the Expansion and prior to the
termination of any Builders Risk Policy for the Expansion, Tenant shall deliver
to Landlord an original or copy of each updated policy or policies that includes
coverage for the Building or the Expansion or, at Landlord's option, a
certificate thereof and at least thirty (30) days before any such policy
expires, Tenant shall deliver to Landlord an original replacement policy
therefor (or at Landlord's option a certificate thereof). Tenant shall require
such insurer to specify in its certificate that it will provide Landlord with at
least 30 days prior written notice of any changes in coverage, coverage limits,
cancellation or nonrenewal of its policy or policies.
16. CASUALTY LOSS.
a. If at any time during the Term, the Leased Premises shall be
damaged or destroyed in whole or in part by fire or other cause, and Tenant
elects not to terminate this Lease, then Tenant shall, at its own cost and
expense, repair and restore the Leased Premises to its condition as of the
Commencement Date, provided that the storage space converted to office spaces is
repaired and restored to its condition as of June 1, 1997, and provided that the
Expansion and related improvements are repaired and restored to their condition
as upon substantial completion and the Tenant's full occupancy of the Expansion,
all subject to reasonable wear and tear, within a period of time, which, under
all prevailing circumstances, shall be commercially reasonable. In such event,
this Lease shall remain in full force and effect and Tenant shall not be
entitled to any reduction of the rent payable hereunder, proportionate or
otherwise. All proceeds of the insurance required under Section 15(a) hereof
shall first be applied to repair and restore the Leased Premises if Tenant
elects to repair and restore the Premises pursuant to this Section.
b. In no event shall Landlord be required to repair any injury or
damage by fire or other cause, or to make repairs or replacements of, any
leasehold improvements, fixtures or other personal property of Tenant.
c. Tenant shall have the option to terminate the Lease and not
reconstruct the Building in which case Tenant shall surrender to Landlord the
Leased Premises in accordance with the provisions of Section 18 and pay over to
Landlord all proceeds of the insurance required under Section 15(a) hereof.
Tenant shall pay to Landlord such additional amounts as may be required,
together with such insurance proceeds, to produce an amount sufficient, when
invested at the lesser of the yield on the one year Treasury Bill or the yield
on the Bonds as reported on the Forms 8038-G filed with the Internal Revenue
Service in connection therewith, giving account to the investment earnings
thereon, to pay the outstanding principal of, premium, if any, and interest on
the loan from the Town to Landlord to finance the construction of the Building
as and when due, plus the balance on the amortization schedule as shown on
Exhibit F. In the event insurance proceeds actually received exceed the amount
required to fund the payment of outstanding principal of, premium, if any, and
interest on the Bonds determined in the manner hereinabove described, then such
excess insurance proceeds shall be divided between Landlord and Tenant on a
proportionate basis based upon a fraction, the numerator of which will be the
value of the Landlord's or Tenant's interest in the Leasehold Premises, as the
case may be (with Tenant's interest to be determined based upon the initial term
of this Lease without taking into consideration its right to renew or extend the
term or its option to purchase), and the denominator
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of which will be the total value of the Leased Premises. The value of the Leased
Premises, the Landlord's interest in the Leased Premises and Tenant's leasehold
interest shall be determined using the same procedure as is set forth in Section
19 hereof regarding determination of fair market value of the Leased Premises.
The total value of the Leased Premises shall in no event exceed the lesser of
(a) the sum of the Landlord's value plus Tenant's value or (b) the insurance
proceeds. All rent and other sums payable hereunder shall be apportioned as of
the date of such termination and Landlord and Tenant shall be free and
discharged from all obligations hereunder arising after the date of such
termination; provided any responsibility or liability for events occurring prior
to the termination date shall survive the termination.
17. TRADE FIXTURES.
Tenant may install or cause to be installed in the Leased Premises such
equipment and trade fixtures as are reasonably necessary for the operation of
its business. Such equipment and trade fixtures shall remain personal property
of Tenant. Tenant shall be entitled to remove such trade fixtures installed by
Tenant at any time during the Term or upon the expiration or earlier termination
of this Lease; provided that Tenant is not then in default hereunder. Tenant
covenants and agrees, at its own expense, to immediately repair any damage to
the Leased Premises attributable to the removal of any of Tenant's equipment and
trade fixtures, reasonable wear and tear excepted, and this provision shall
survive the expiration or termination of this Lease. As used herein, the term
"trade fixtures" includes, but is not limited to: (1) all materials,
inventories, and supplies; (2) manufacturing equipment of every kind; (3) all
handling and storage equipment not provided or financed by the Landlord; (4) any
and all equipment installed specific to the operations of BTI, such as vents or
cranes or other equipment for specific operations not provided or financed by
the Landlord; (5) lighting installed for specific work centers installed by BTI
not provided or financed by the Landlord; (6) portable office partitions and
office equipment not provided or financed by the Landlord.
18. ACCESS TO LEASED PREMISES.
Landlord and Landlord's agent shall have the right to enter the Leased
Premises upon reasonable advance notice under the circumstances to examine them,
show them to prospective purchasers or mortgagees and to make and perform such
maintenance, repairs and other work that Landlord may be required to perform
under this Lease or as Landlord may deem necessary for the safety, improvement
or preservation of the Leased Premises, provided that no obligation to perform
any such work is hereby implied, without the same constituting an eviction of
Tenant in whole or in part or entitling Tenant to any abatement of rent or
damages for any injury or interference with Tenant's business or loss of quiet
enjoyment. Landlord shall exercise its best efforts to take all such actions in
a manner which causes minimum disruption and cost to Tenant.
19. OPTION TO PURCHASE THE LEASED PREMISES.
Landlord hereby grants to Tenant the option to purchase the Leased Premises
at the time, for the consideration, and upon the terms and conditions
hereinafter set forth:
a. Except as provided below, Tenant may exercise this option to
purchase the Leased Premises at any time after January 1, 2004 provided,
that any such election must be evidenced by a notice in writing addressed
to Landlord.
b. The price to be paid by Tenant to Landlord for the Leased Premises
if the option is exercised shall be the greater of:
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(i) The fair market value of the Leased Premises (including
the Real Property, Building, Expansion, and related improvements), at
the time Tenant gives written notice to Landlord that it elects to
exercise its option to purchase the Leased Premises; or
(ii) An amount equal to the sum of (a) the fair market value
of the Real Property, plus (b) an amount sufficient, when invested at
the yield on the Town's 1995 Bonds as reported on the Form 8038-G
filed with the Internal Revenue Service in connection therewith, or
the one year Treasury Bill, whichever is less, giving account to the
investment earnings thereon, to pay the outstanding principal of,
premium, if any, and interest on the loan from the Town to Landlord to
finance the construction of the Building and Improvements, plus (c)
the balance outstanding on the amortization schedule of the cost of
the 2,400 square feet of converted office space provided by Landlord
to Tenant in the First Amendment to Primary Lease Agreement dated as
of June 1, 1997, and attached hereto as Exhibit F, plus (d) an amount
sufficient when invested at the yield on the 1998 Bonds as reported on
the Form 8038G filed in connection therewith, or the one year Treasury
Bill, whichever is less, giving account to the investment earnings
thereon, to pay the principal of, premium, if any and interest on the
loan from the Town to construct the Expansion. The amortization
schedules on the loans from the Town to Landlord shall be the same as
the Town's general obligation bonds issued to fund the loan to
Landlord.
c. For purposes of this Section 19, fair market value shall be
determined on the following basis and in the following order of
priority:
1. By agreement of the parties;
2. By qualified appraiser acceptable to both parties;
3. In the event the parties cannot agree upon a single
appraiser within 30 days following notice of exercise of
Tenant's option, then each party shall select an appraiser
within 10 days and the two appraisers so chosen shall select
a third qualified appraiser and the arithmetic average of
the three appraisals shall be the fair market value.
d. The option price to be paid to Landlord, as hereinabove
provided, shall be a net amount to Landlord, and all expenses in connection with
the transfer of the Leased Premises including, but not limited to, appraisals,
title insurance, recording fees, documentary stamps, conveyance tax, and all
other closing costs, shall be paid by Tenant. Notwithstanding the foregoing,
Landlord shall be responsible for payment of all outstanding liens and
encumbrances against the Leased Premises, excepting any liens or encumbrances
created by Tenant, provided no authority to create such liens or encumbrances is
hereby implied. The option price shall be paid by Tenant in cash to Landlord
concurrently with the conveyance of the Leased Premises by Landlord to Tenant.
The Leased Premises shall be conveyed by Landlord to Tenant free and clear of
liens and encumbrances excepting municipal and zoning ordinances, recorded
easements, and recorded restrictions identified in Exhibit A attached hereto,
all taxes or assessments, general or special, and any other defects, liens, or
encumbrances caused, created, or suffered by Tenant. Tenant shall obtain and pay
for any title evidence which Tenant may feel
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necessary prior to conveyance. Landlord will provide Tenant with all title
reports, title opinions and title policies in its possession.
e. The right to exercise the option herein granted is conditioned
upon the faithful performance by Tenant of all covenants, conditions, and
agreements required to be performed by it as Tenant under this Lease, and the
payment by Tenant of all rent and other monetary obligations imposed upon Tenant
by this Lease to the date of the completion of the purchase of the Leased
Premises by Tenant. The Tenant shall have no right to purchase the Leased
Premises and any attempt to exercise this option shall be void, if at the time
such option is exercised, Tenant is in default under this Lease; provided,
however, that Tenant shall have the right to cure any defaults in the manner and
to the extent provided in Section 22 hereof at the time it exercises its option
and such cure shall satisfy the conditions of this section.
f. The closing shall occur within 90 days of Tenant's exercise of
its option. At closing, Landlord shall deliver a quitclaim deed with covenants
conveying good and marketable title to Tenant.
g. Landlord shall have the right to sell the Leased Premises to a
third party at any time, subject to Tenant's rights and interests under this
Lease, including without limitation the Tenant's rights under this Section 19.
20. END OF TERM.
At the expiration or termination of this Lease, Tenant shall promptly quit
and surrender the Leased Premises to Landlord broom clean and in good order and
condition, ordinary wear excepted, and free from debris, trash and waste. All
trade fixtures, equipment, furniture, furnishings and personal effects not
removed by Tenant within ten (10) days after expiration or termination of this
Lease shall, at Landlord's option, be deemed to have been conveyed to Landlord
and may be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without obligation to account therefor or, at Landlord's option,
Landlord can have such trade fixtures and items removed and the cost of any such
removal and the expense of any repair necessitated by such removal shall be
borne by Tenant.
21. RELEASE AND INDEMNITY.
a. Tenant shall neither hold nor attempt to hold Landlord or
Landlord's employees or agents liable for, and Tenant shall defend, hold
harmless and indemnify Landlord and Landlord's employees or agents from and
against, any and all demands, claims, causes of action, liabilities or
judgments, and any and all expenses and costs (including, without limitation,
attorneys' fees) incurred by Landlord in investigating and resisting the same,
incurred in connection with, or as a result of, or arising from any of the
following:
(1) any acts, omissions or negligence of Tenant, its agents,
employees, contractors, subtenants, invitees or visitors or any violation or
non-performance of any law, ordinance or governmental requirement of any kind,
or from any breach or default in the performance of any provisions of this Lease
by any of such persons, or any activity, work or other thing done, permitted or
suffered by any of such persons; or
(2) any injury or damage to the person, property or business of
Tenant, its agents, employees, contractors, invitees, visitors or any other
person entering upon the Leased Premises, where the injury or damage is caused
by any reason whatsoever, except as specifically hereinafter discussed,
including without limiting the generality of the foregoing, negligence of
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Landlord. The sole exception to this indemnity is for injury or damage caused
solely by the fraudulent or criminal acts of the officers and agents of
Landlord.
b. Neither Landlord, nor its agents, servants, or employees, shall
be liable for, and Tenant hereby releases such parties from, all claims for loss
of life, personal injury or damage to property or business sustained by Tenant
or any person claiming by or through Tenant resulting from any fire, accident,
occurrence or condition in or upon the Leased Premises. Tenant agrees to use and
occupy the Leased Premises at its own risk. Landlord shall have no
responsibility or liability for any such loss or injury or for any loss of or
damage to fixtures or personal property of Tenant.
c. The provisions of this Section 21 shall survive the termination
or expiration of this Lease.
22. DEFAULT.
The occurrence of any one or more of the following shall constitute a
default of Tenant hereunder:
a. Tenant shall fail to pay any installment of base rent within ten
(10) days after the due date specified in Section 3(b) hereof; provided,
however, that no default shall occur unless payment is not received within a
period of 10 days following Tenant's receipt of written notice from the Landlord
of failure to make such payment. Notice shall be given by Landlord to Tenant of
failure to pay only upon the expiration of ten (10) days following the due date.
b. Tenant shall neglect or fail to perform or observe any covenant
herein contained on Tenant's part to be performed or observed, or to pay any
sums other than base rent to any party when due, that is not otherwise specified
as an event of default under this Section, and Tenant shall fail to remedy the
same within thirty (30) days after Landlord shall have given to Tenant written
notice specifying such neglect or failure (forthwith in the case of an emergency
or in the case of a breach of a negative covenant contained herein), or within
such longer period as may be reasonably required to cure such default if it is
of such nature that it can be cured, but not within such thirty-day period,
provided that Tenant promptly commences to remedy such default and proceeds with
reasonable diligence thereafter to cure such default; provided, however, that
such period of completion shall not extend for more than an additional ninety
(90) days).
c. This Lease or the Leased Premises or any part thereof shall be
taken upon execution or by other process of law directed against Tenant, or any
partner of Tenant, or shall be taken upon or subject to any attachment at the
instance of any creditor of or claimant against Tenant, or any partner of
Tenant, and such attachment is not discharged or disposed of within ninety (90)
days after the levy thereof.
d. Tenant shall (i) admit in writing its inability to pay its debts
generally as they become due, (ii) make an assignment of all or a substantial
part of its property for the benefit of creditors, (iii) apply for or consent to
or acquiesce in the appointment of a receiver, trustee or liquidator of Tenant,
or any partner of Tenant, or of all or a substantial part of its property or of
the Leased Premises or of its interest in this Lease unless such receiver,
trustee or liquidator is discharged within ninety (90) days from the date of his
appointment; or (iv) file a voluntary petition in bankruptcy or a petition or an
answer seeking reorganization under any bankruptcy or insolvency law or an
arrangement with creditors, or take advantage of any insolvency law or file an
answer admitting the material allegations of a petition filed against
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Tenant, or any partner of Tenant, in any bankruptcy, reorganization or
insolvency proceedings which is not dismissed in ninety (90) days.
e. The entry of a court order, judgment or decree without the
application, approval or consent of Tenant, appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its property or of the
Leased Premises or of Tenant's interest in this Lease or adjudicating Tenant, or
any partner of Tenant, a bankrupt or insolvent, and such order, judgment or
decree shall not be vacated, set aside or stayed within ninety (90) days from
the date of entry.
23. REMEDIES.
If Tenant shall default under this Lease as set forth in Section 22,
Landlord shall have the following rights and remedies, in addition to all other
remedies at law or equity, and none of the following, whether or not exercised
by Landlord, shall preclude the exercise of any other right or remedy whether
herein set forth or existing at law or equity:
a. Landlord lawfully may, immediately or at any time after such
default, and without demand or notice, enter into and upon said Leased Premises
or any part thereof in the name of the whole, and repossess the same as of its
former estate, and expel Tenant and those claiming through or under it and
remove its or their effects (forcibly if necessary) without being deemed guilty
of any manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant, and upon
entry as aforesaid this Lease shall terminate.
b. Landlord shall have the right to terminate this Lease by giving
Tenant notice in writing, and upon the giving of such notice, this Lease and the
Term hereof as well as the right, title and interest of Tenant under this Lease
shall wholly cease and expire in the same manner and with the same force and
effect (except as to Tenant's liability) on the date of the termination of this
Lease without the necessity of re-entry or any other act on Landlord's part.
Upon any termination of this Lease Tenant shall quit and surrender to Landlord
the Leased Premises as set forth in Section 20. If this Lease is terminated,
Tenant shall remain liable to Landlord for all rent accrued and unpaid and for
the entire unpaid rental and other sums due hereunder for the remainder of the
Term and Landlord shall also be entitled to recover damages from Tenant, such
damages to include not only damages under this Lease, but also reimbursement for
any liability or obligation that Landlord may elect to assume under any
subleases of the Leased Premises. Landlord agrees to exercise reasonable efforts
to mitigate its damages.
c. Landlord may, without further demand or notice, re-enter and take
possession of the Leased Premises or any part thereof, without terminating this
Lease and expel Tenant and those claiming through or under Tenant, and remove
any effects of any and all such persons (forcibly, if necessary) without being
deemed guilty of any manner of trespass and without prejudice to any remedies
and Tenant shall remain liable for its obligations under this Lease. Should
Landlord elect to re-enter as provided in this subsection 23(c), or should
Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided for by law, Landlord, may, from time to time, without terminating this
Lease, relet the Leased Premises or any part thereof for such term or terms and
at such rent or rentals and upon such other conditions as Landlord may deem
advisable, with the right to make alterations or repairs to the Leased Premises.
No such re-entry or repossession of the Leased Premises by Landlord shall be
construed as an election of Landlord's part to terminate this Lease unless a
written notice of termination is given to Tenant by Landlord. No such re-entry
or repossession of the Leased Premises shall relieve Tenant of its liability and
obligation under this Lease, all of which shall survive such re-entry or
repossession. Upon the occurrence of such re-entry or repossession, Landlord
shall be entitled to the amount of the monthly rent and any other sums, which
would be
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payable hereunder if such re-entry or repossession had not occurred, less the
net proceeds, if any, of reletting the Leased Premises after deducting all of
Landlord's expenses in connection with such reletting. Tenant shall pay such
amount to Landlord on the days on which the rent or other sums due hereunder
would have been payable hereunder if possession had not been retaken. In no
event shall Tenant be entitled to receive the excess, if any, of net rent
collected by Landlord as a result of such reletting of the sums payable by
Tenant to Landlord hereunder.
d. If Tenant shall default in making any payment required to be made
by Tenant (other than payments of rent) or shall default in performing any other
obligation of Tenant under this Lease, Landlord may, but shall not be obligated
to, make such payment or, on behalf of Tenant, spend such sum as may be
necessary to perform such obligation. All sums so expended by Landlord, together
with interest thereon at the annual rate of 18 percent, shall be repaid by
Tenant to Landlord on demand. No such payment or expenditure by Landlord shall
be deemed a waiver of Tenant's default nor shall it effect any other remedy of
Landlord by reason of such default.
e. The receipt of rent by Landlord with knowledge of any default of
Tenant shall not be deemed to be a waiver of any provision of this Lease. Any
failure of Landlord to enforce the provisions of this Lease upon the default of
Tenant shall not be construed as creating a custom of deferring payment or as
modifying in any way the terms of this Lease or as a waiver of Landlord's
remedies under this Lease or of Landlord's right to enforce the provisions
hereof for any subsequent default. No payment by Tenant, or receipt by Landlord,
of a lesser amount than the rent due hereunder shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed in accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy available to Landlord.
24. HOLDOVER.
If Tenant or any party claiming through or under Tenant shall remain or
continue to be in possession of the Leased Premises or any part thereof after
the termination of the Lease, without Landlord's consent, Tenant or such party
or both shall be deemed to be a month-to-month tenant of the Leased Premises on
all the terms and conditions of this Lease except that the monthly rent
hereunder shall be two times the amount payable during the month prior to such
termination. This Section shall not be construed as giving Tenant any right to
hold over after the expiration of the Term or to limit Landlord's rights to
obtain possession of the Leased Premises upon termination by any lawful means
available to Landlord if Landlord does not elect to treat the continued
possession by Tenant or any party claiming through or under Tenant as a
month-to-month tenancy.
25. SUBORDINATION.
a. The Tenant agrees at the request of the Landlord to subordinate
this Lease to any mortgage placed upon the Premises, provided that the holder of
such mortgage agrees in substance for itself, its successors and assigns to be
bound by the terms of this Lease and not to disturb the Tenant in the Tenant's
possession of the Premises so long as the Tenant continues to perform the
Tenant's obligations hereunder; and, in the event of acquisition of title by
said holder through foreclosure proceedings or otherwise, to accept the Tenant
as Tenant of the Premises under the terms and conditions of this Lease and to
perform the Landlord's obligations hereunder (but only while owner of the
Premises), and the Tenant agrees to recognize such holder or any other person
acquiring title to the Premises as the Landlord.
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b. Subject to the requirements of Section 25(a) promptly at the
request of Landlord or the holder of any mortgage on the Leased Premises or any
landlord under any ground or underlying lease (herein referred to as a
"Mortgagee"), Tenant shall execute, acknowledge and deliver such further
instruments evidencing such subordination as the Landlord or such Mortgagee
shall deem necessary or desirable, and, upon request of such Mortgagee, attorney
to such Mortgagee and recognize such Mortgagee as Landlord under all the terms
and provisions of this Lease except as such Mortgagee shall not be (i) liable
for any act or omission of any prior landlord, or (ii) subject to any offsets or
defenses that Tenant might have against any prior landlord, or (iii) bound by
any rent or other sums payable hereunder that Tenant might have paid for more
than one month in advance to any prior landlord, or (iv) bound by any amendment
or modification of this Lease made without the consent of such Mortgagee.
c. Subject to the requirements of Section 25(a) after receiving
written notice from any Mortgagee, Tenant shall be required to give to such
Mortgagee the same notices as are required to be given to Landlord under the
terms of this Lease, but such notices may be given by Tenant to Landlord and
such Mortgagee concurrently. It is further agreed that such Mortgagee shall have
the right, but not the obligation, within thirty (30) days after receipt of such
notice (or within such additional time as is reasonably required to correct any
such default) to correct or remedy, or cause to be corrected or remedied, each
such default before Tenant may take any action under this Lease by reason of
such default and if necessary to cure such default, such Mortgagee shall have
access to the Leased Premises. Notice to such Mortgagee shall be sent to the
address specified in the written notice from such Mortgagee to Tenant, or to
such other address as may be designated in writing from time to time from such
Mortgagee. In any subordination agreements required of Tenant, Landlord shall
exercise its best efforts to obtain a mortgagee's commitment to provide notices
to Tenant contemporaneously with providing such notices to Landlord.
26. NO IMPLIED SURRENDER OR WAIVER.
The acceptance of rent by Landlord or his agent shall not be deemed to be a
waiver (except as to any default arising out of the failure to pay the rent so
accepted by Landlord) of any breach of Tenant of any covenant herein contained.
No provisions of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver is in writing signed by the party to be charged.
27. NO REPRESENTATIONS BY LANDLORD OR TENANT; ENTIRE AGREEMENT.
Neither Landlord and Landlord's agents, nor Tenant and Tenant's agents,
have made any representations, warranties, agreements or promises with respect
to the Leased Premises, except such as are expressed herein. The entire
agreement of the parties is contained herein, and there are no promises,
agreements, representations, warranties, conditions or understandings, either
oral or written, between them other than as are herein set forth. The Leased
Premises are being leased "as is" and Landlord makes no representation, express
or implied, with respect to habitability, merchantability or fitness for a
particular purpose.
28. AMENDMENT OR MODIFICATION.
Except as herein otherwise provided, no amendment, alteration, modification
of or addition to this Lease shall be valid or binding unless expressed in
writing and signed by the party or parties to be bound thereby.
19
<PAGE> 23
29. DEFINITION OF LANDLORD.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the Leased
Premises. In the event of any sale or other transfer of the Leased Premises by
Landlord, whether the original Landlord hereunder or any successor Landlord
thereto, Landlord shall be and is hereby entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence or omission occurring
after the consummation of such sale or transaction and Tenant shall look solely
to the successor Landlord for the performance of any such covenants or
obligations.
30. ESTOPPEL CERTIFICATES.
Tenant agrees, at any time, and from time to time, upon not less than ten
(10) days prior request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or, if there have been modifications, stating the
modifications, and that the Lease as modified is in full force and effect), and
that there are no defenses or offsets thereto then accrued, or stating those
claimed by Tenant, and the dates to which the rent and other charges have been
paid, it being intended that any such statement delivered pursuant to this
Section may be relied upon by any prospective purchaser of, any prospective
holder of a mortgage upon the fee of the Leased Premises, or any other properly
interest party.
31. LIMITATION OF LANDLORD'S LIABILITY.
Tenant shall neither assert nor seek to enforce any claim (except
injunctive relief where appropriate) for breach of this Lease against any of
Landlord's assets other than Landlord's interest in the Leased Premises and in
the rents, issues and profits thereof, and in any insurance proceeds actually
received by Landlord that are allocable to the Leased Premises, and Tenant
agrees to look solely to such interests and proceeds for the satisfaction of any
liability of Landlord under this Lease. In no event shall Landlord (which term
shall include, without limitation all of the officers, trustees, directors,
partners, partners in partners, beneficiaries, joint ventures, members,
stockholders or other principals or representatives, disclosed or undisclosed,
thereof) ever be personally liable for any such liability or ever be liable for
damages, whether direct, consequential, punitive or otherwise.
32. SEVERABILITY.
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in the event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby.
33. CAPTIONS, GENDER, AND NUMBER.
The caption of each Section is added as a matter of convenience only and
shall be considered of no effect in the construction of any provision or
provisions of this Lease. The term "Tenant" herein, or any pronoun used in place
thereof, shall include the masculine, feminine, singular, plural, individuals,
partnerships or corporations where applicable.
20
<PAGE> 24
34. NOTICE.
Any notice, demand or communication concerning the Lease shall be in
writing and shall be deemed sufficiently given or rendered if delivered
personally or by certified or registered U.S. mail, postage prepaid or overnight
courier service addressed to Tenant at the Leased Premises with a copy to Eaton,
Peabody, Bradford & Veague, P.A., 167 Park Row, P.O. Box 9, Brunswick, ME 04011,
ATTN: Michael B. Trainor, Esq. or addressed to Landlord at 28 Federal Street,
Brunswick, Maine 04011, ATTN: President, with a copy to Pierce, Atwood,
Scribner, Allen, Smith & Lancaster, One Monument Square, Portland, Maine 04101,
ATTN:. James M. Saffian, Esq. Any such notice shall be deemed effective upon the
earlier of (i) actual receipt or (ii) three days after deposit in the U.S. mail
or with such overnight courier service as provided herein. Either party can
change its address for future notices in the manner provided above, such change
of address to be effective only upon receipt.
35. ADDITIONAL RIGHTS.
In the event it shall become necessary for Landlord to bring suit in order
to collect the rent or to enforce any other provision of this Lease on the part
of Tenant to be performed, Landlord shall be entitled to collect reasonable
attorneys' fees and costs from Tenant in connection with the aforesaid
enforcement proceedings, except to the extent prohibited by applicable law.
36. RECORDING.
Tenant agrees not to record this Lease, but each party hereto agrees, on
request of the other, to execute a short form memorandum of this Lease in
recordable form in compliance with the requirements of 33 M.R.S.A. ss.201, as
amended, and satisfactory to Landlord and Tenant, which memorandum of lease may
be recorded by either party. In no event shall such memorandum set forth the
rental or other charges payable by Tenant under this Lease and any such
memorandum shall expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and conditions
hereof.
37. BINDING EFFECT.
The covenants, conditions and agreements contained in this Lease shall bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and, except as otherwise
provided in this Lease, their assigns.
38. GOVERNING LAW.
This Lease shall be governed by and interpreted in accordance with the laws
of the State of Maine.
IN WITNESS WHEREOF, the undersigned have executed this Lease as of the date
first set forth above.
WITNESS BRUNSWICK DEVELOPMENT CORPORATION
By: /s/ Donald H. Cerrish
- --------------------------- ----------------------------------------
Print Name:
Its:
BRUNSWICK TECHNOLOGIES, INC.
By: /s/ Thomas L. Wallace
- --------------------------- ----------------------------------------
Print Name: Thomas L. Wallace
Its Vice President
21
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Brunswick
Technologies, Inc.'s unaudited consolidated financial statements as of and for
the three months ended September 30, 1998 and September 30, 1997 and is
qualified in its entirety by reference to such financial statements. Amounts
are rounded to thousands
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JUL-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 1,267
<SECURITIES> 0
<RECEIVABLES> 5,259
<ALLOWANCES> 130
<INVENTORY> 4,666
<CURRENT-ASSETS> 11,795
<PP&E> 12,346
<DEPRECIATION> 2,624
<TOTAL-ASSETS> 28,729
<CURRENT-LIABILITIES> 3,509
<BONDS> 0
0
0
<COMMON> 24,750
<OTHER-SE> 135
<TOTAL-LIABILITY-AND-EQUITY> 28,729
<SALES> 10,309
<TOTAL-REVENUES> 10,309
<CGS> 8,158
<TOTAL-COSTS> 1,852
<OTHER-EXPENSES> (113)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 412
<INCOME-TAX> 152
<INCOME-CONTINUING> 260
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 260
<EPS-PRIMARY> 0.05
<EPS-DILUTED> 0.05
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Brunswick
Technologies, Inc.'s unaudited consolidated financial statements as of and for
the six months ended September 30, 1998 and September 30, 1997 and is qualified
in its entirety by reference to such financial statements. Amounts are rounded
to thousands
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 1,267
<SECURITIES> 0
<RECEIVABLES> 5,259
<ALLOWANCES> 130
<INVENTORY> 4,666
<CURRENT-ASSETS> 11,795
<PP&E> 12,346
<DEPRECIATION> 2,624
<TOTAL-ASSETS> 28,729
<CURRENT-LIABILITIES> 3,509
<BONDS> 0
0
0
<COMMON> 24,750
<OTHER-SE> 135
<TOTAL-LIABILITY-AND-EQUITY> 28,729
<SALES> 30,325
<TOTAL-REVENUES> 30,325
<CGS> 23,458
<TOTAL-COSTS> 5,319
<OTHER-EXPENSES> (315)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 1,863
<INCOME-TAX> 667
<INCOME-CONTINUING> 1,196
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,196
<EPS-PRIMARY> 0.23
<EPS-DILUTED> 0.22
</TABLE>
