<PAGE> 1
FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1996
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________ to ____________
Commission File Number: 0-22994
GUNTHER INTERNATIONAL, LTD.
(Exact name of small business issuer as specified in its charter)
DELAWARE 51-0223195
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE WINNENDEN ROAD, NORWICH, CONNECTICUT 06360
(Address of principal executive offices)
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: 860-823-1427
Indicate by check whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Exchange Act during the past 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 number of shares of the Registrant's Common Stock outstanding as of November
5, 1996 was 4,283,269
Transitional Small Business Disclosure Format (check one):
YES_____ NO X
Exhibit Index is located at Page 14
<PAGE> 2
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
INDEX
Page
No.
PART I - FINANCIAL INFORMATION
ITEM 1. CONDENSED FINANCIAL STATEMENTS
BALANCE SHEETS
SEPTEMBER 30, 1996 (UNAUDITED)
AND MARCH 31, 1996...................................................3,4
UNAUDITED STATEMENTS
OF INCOME - THREE MONTHS AND
SIX MONTHS ENDED
SEPTEMBER 30, 1996 AND 1995............................................5
UNAUDITED STATEMENTS
OF CASH FLOWS - THREE MONTHS AND
SIX MONTHS ENDED
SEPTEMBER 30, 1996 AND 1995............................................6
NOTES TO CONDENSED FINANCIAL
STATEMENTS.............................................................7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.....................8 - 11
ITEM 3. LEGAL PROCEEDINGS....................................................11
PART II - OTHER INFORMATION:
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS................12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.....................................12
SIGNATURES....................................................................13
EXHIBIT INDEX.................................................................14
EXHIBITS.................................................................15 - 33
2
<PAGE> 3
FORM 10-QSB
SEPTEMBER 30, 1996
PART I - FINANCIAL INFORMATION
ITEM 1 - CONDENSED FINANCIAL STATEMENTS
GUNTHER INTERNATIONAL, LTD.
BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1996 1996
(UNAUDITED)
<S> <C> <C>
CURRENT ASSETS:
UNRESTRICTED CASH AND
SHORT-TERM INVESTMENTS $ 615,305 $ 127,059
RESTRICTED CASH AND
SHORT-TERM INVESTMENTS 0 325,834
ACCOUNTS RECEIVABLE, NET 1,288,426 1,187,082
COSTS AND ESTIMATED EARNINGS IN EXCESS
OF BILLINGS ON UNCOMPLETED CONTRACTS 2,818,889 331,644
INVENTORIES 607,143 1,312,407
PREPAID EXPENSES 109,531 88,863
----------- -----------
TOTAL CURRENT ASSETS 5,439,294 3,372,889
----------- -----------
PROPERTY AND EQUIPMENT:
MACHINERY AND EQUIPMENT 775,605 761,700
FURNITURE AND FIXTURES 114,298 113,982
LEASEHOLD IMPROVEMENTS 255,012 67,811
----------- -----------
1,144,915 943,493
LESS - ACCUMULATED DEPRECIATION
AND AMORTIZATION 404,846 292,099
----------- -----------
NET PROPERTY AND EQUIPMENT 740,069 651,394
----------- -----------
OTHER ASSETS:
EXCESS OF COST OVER FAIR VALUE OF
NET ASSETS ACQUIRED, NET 3,557,033 3,668,772
DEFERRED PREPRODUCTION COSTS, NET 495,592 397,444
ACCOUNT AND NOTE RECEIVABLE
FROM STOCKHOLDERS 59,177 19,177
INVESTMENT, AT LOWER OF COST OR MARKET 30,000 30,000
OTHER 16,186 16,183
----------- -----------
TOTAL OTHER ASSETS 4,157,988 4,131,576
----------- -----------
TOTAL LONG-TERM ASSETS 4,898,057 4,782,970
----------- -----------
TOTAL ASSETS $10,337,351 $ 8,155,859
=========== ===========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE FINANCIAL STATEMENTS
3
<PAGE> 4
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
BALANCE SHEETS
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1996 1996
(UNAUDITED)
<S> <C> <C>
CURRENT LIABILITIES:
ACCOUNTS PAYABLE TO STOCKHOLDER $ 0 $ 100,000
ACCOUNTS PAYABLE 2,252,287 1,951,551
ACCRUED EXPENSES 585,163 494,089
NOTE PAYABLE AND CURRENT MATURITIES
OF LONG-TERM DEBT 366,325 666,325
BILLINGS IN EXCESS OF COSTS AND ESTIMATED
EARNINGS ON UNCOMPLETED CONTRACTS 1,694,848 243,371
DEFERRED SERVICE CONTRACT REVENUE 1,241,004 1,124,028
------------ ------------
TOTAL CURRENT LIABILITIES 6,139,627 4,579,364
------------ ------------
LONG-TERM DEBT, LESS CURRENT MATURITIES 1,993,165 1,964,709
TOTAL LIABILITIES 8,132,792 6,544,073
STOCKHOLDERS' EQUITY:
PREFERRED STOCK, $.001 PAR VALUE; 500,000
SHARES AUTHORIZED; NO SHARES ISSUED OR
OUTSTANDING 0 0
COMMON STOCK, $.001 PAR VALUE;
16,000,000 SHARES AUTHORIZED; 4,283,269
AND 4,133,269 SHARES ISSUED AND
OUTSTANDING AT SEPTEMBER 30 AND
MARCH 31, 1996, RESPECTIVELY 4,283 4,133
SERIES B COMMON STOCK, $.001 PAR VALUE;
500 SHARES AUTHORIZED, ISSUED AND
OUTSTANDING AT SEPTEMBER 30
AND MARCH 31, 1996 1 1
ADDITIONAL PAID-IN CAPITAL 11,390,302 10,865,450
ACCUMULATED DEFICIT (9,190,027) (9,257,798)
------------ ------------
TOTAL STOCKHOLDERS' EQUITY 2,204,559 1,611,786
------------ ------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 10,337,351 $ 8,155,859
============ ============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE FINANCIAL STATEMENTS
4
<PAGE> 5
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
UNAUDITED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
1996 1995 1996 1995
----------- ----------- ----------- -----------
SALES:
<S> <C> <C> <C> <C>
SYSTEMS $ 2,485,457 $ 2,541,301 $ 4,765,913 $ 4,569,337
MAINTENANCE 1,575,146 887,015 2,940,328 1,733,897
----------- ----------- ----------- -----------
TOTAL SALES 4,060,603 3,428,316 7,706,241 6,303,234
----------- ----------- ----------- -----------
COST OF SALES:
SYSTEMS 1,379,646 1,474,641 2,580,692 2,764,959
MAINTENANCE 1,003,121 632,020 1,838,654 1,279,509
----------- ----------- ----------- -----------
TOTAL COST OF SALES 2,382,767 2,106,661 4,419,346 4,044,468
----------- ----------- ----------- -----------
GROSS PROFIT 1,677,836 1,321,655 3,286,895 2,258,766
----------- ----------- ----------- -----------
OPERATING EXPENSES:
SELLING AND ADMINISTRATIVE 1,504,926 1,442,657 2,986,312 2,739,597
RESEARCH AND DEVELOPMENT 61,183 65,173 114,213 113,738
----------- ----------- ----------- -----------
TOTAL OPERATING EXPENSES 1,566,109 1,507,830 3,100,525 2,853,335
----------- ----------- ----------- -----------
OPERATING INCOME, (LOSS) 111,727 (186,175) 186,370 (594,569)
----------- ----------- ----------- -----------
OTHER EXPENSES
INTEREST EXPENSE, NET (70,858) (47,036) (118,599) (114,666)
----------- ----------- ----------- -----------
NET INCOME, (LOSS) $ 40,869 $ (233,211) $ 67,771 $ (709,235)
----------- ----------- ----------- -----------
LOSS PER SHARE $ 0.01 $ (0.06) $ 0.02 $ (0.19)
FULLY DILUTED WEIGHTED
AVERAGE SHARES OUTSTANDING 4,344,543 3,772,131 4,319,543 3,684,684
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE FINANCIAL STATEMENTS
5
<PAGE> 6
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
UNAUDITED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
1996 1995 1996 1995
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
NET INCOME, (LOSS) $ 40,869 $ (233,211) $ 67,771 $ (709,235)
ADJUSTMENTS TO RECONCILE NET LOSS TO
NET CASH USED BY OPERATING ACTIVITIES
DEPRECIATION AND AMORTIZATION 146,064 80,619 295,376 155,729
(INCREASE) IN ACCOUNTS RECEIVABLE (203,465) (93,452) (101,344) (246,044)
DECREASE IN INVENTORIES 516,660 246,096 705,264 192,863
(INCREASE) IN PREPAID EXPENSES
AND OTHER ASSETS (98,699) (2,459) (189,709) (42,534)
INCREASE (DECREASE) IN ACCOUNTS
PAYABLE 707,282 (80,719) 200,736 23,815
INCREASE IN ACCRUED EXPENSES 6,357 341,500 91,074 408,068
INCREASE (DECREASE) IN DEFERRED SERVICE
CONTRACT REVENUE 121,199 (29,525) 116,976 (229,525)
(DECREASE) IN BILLINGS IN EXCESS
OF COSTS AND ESTIMATED EARNINGS ON
UNCOMPLETED CONTRACTS, NET (1,229,857) (1,077,811) (1,035,768) (406,576)
----------- ----------- ----------- -----------
NET CASH PROVIDED (USED) BY OPERATING
ACTIVITIES 6,410 (848,962) 150,376 (853,439)
----------- ----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
PURCHASE OF PROPERTY AND EQUIPMENT (193,017) (146,582) (201,422) (155,139)
----------- ----------- ----------- -----------
NET CASH USED BY INVESTING ACTIVITIES (193,017) (146,582) (201,422) (155,139)
----------- ----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
PROCEEDS FROM NOTES PAYABLE AND
LONG-TERM DEBT 36,556 309,288 28,456 593,336
REPAYMENT OF NOTES PAYABLE AND
LONG-TERM DEBT (300,000) (18,763) (300,000) (471,330)
INCREASE IN NOTES RECEIVABLE (40,000) 0 (40,000) 0
DECREASE IN RESTRICTED CASH 328,316 0 325,834 0
ISSUANCE OF COMMON STOCK 525,002 1,000,000 525,002 1,000,000
----------- ----------- ----------- -----------
NET CASH PROVIDED BY
FINANCING ACTIVITIES: 549,874 1,290,525 539,292 1,122,006
----------- ----------- ----------- -----------
NET INCREASE IN UNRESTRICTED
CASH AND SHORT-TERM INVESTMENTS 363,267 294,981 488,246 113,428
UNRESTRICTED CASH AND SHORT-TERM
INVESTMENTS AT BEGINNING OF PERIOD 252,038 127,043 127,059 308,596
----------- ----------- ----------- -----------
UNRESTRICTED CASH AND SHORT-TERM
INVESTMENTS AT END OF PERIOD $ 615,305 $ 422,024 $ 615,305 $ 422,024
----------- ----------- ----------- -----------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE FINANCIAL STATEMENTS
6
<PAGE> 7
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(1) MANAGEMENT REPRESENTATION: In the opinion of management, the accompanying
unaudited interim financial statements have been prepared in accordance with
generally accepted accounting principles and contain all adjustments (consisting
of only normal recurring accruals) necessary to present fairly the financial
position and the results of operations for the interim periods. These financial
statements should be read in conjunction with the financial statements and
related notes included in the Company's Annual Report on Form 10-KSB for the
fiscal year ended March 31, 1996. The results of operations for the interim
period are not necessarily indicative of results to be expected for the full
year.
(2) PER SHARE DATA: Earnings per common share are based on the fully diluted
weighted average number of shares of common stock outstanding during each
period.
7
<PAGE> 8
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS:
TOTAL SALES: Sales for the three month period ended September 30, 1996 increased
18.4% compared to the same period in 1995. System sales for the three month
period ended September 30, 1996 decreased 2.2% from the same period in 1995.
Maintenance sales increased 77.6% over the same three month period. Sales for
the six month period ended September 30, 1996 increased 22.3% from the same
period in 1995. Systems sales increased 4.3% in the six month period ended
September 30, 1996 compared to the same period in 1995. Maintenance sales rose
69.6% in the same six month period. The slight decrease in systems sales for the
three month period ended September 30, 1996 is primarily attributable to the
previously disclosed low systems order backlog existing at March 31, 1996 and
the production cycle of approximately six months for the Company's products. On
a positive note, total dollar value of orders received in the second quarter of
this year exceeded orders received in the same quarter last year by 104% which
is expected to have a positive impact on sales reported in future periods. The
increase in system sales for the six month period is due to increased market
penetration of the Company's products and repeat orders from the existing
customer base. The increase in maintenance sales was due primarily to the
increased number of systems under maintenance contract in the field. The systems
order backlog, consisting of total order price less revenue recognized to date
for all signed orders on hand at September 30, 1996 was $2,928,000 compared to
$2,208,000 at September 30, 1995.
GROSS PROFIT: Gross profit as a percentage of sales for the three month period
ended September 30, 1996 increased to 41.3% from 38.6% for the same period last
year. Gross profit as a percentage of systems sales increased to 44.5% from 42%
for the same period three month period last year. Gross profit as a percentage
of maintenance sales increased to 36.3% in the three month period ended
September 30, 1996 compared to 28.7% in the same period last year. For the six
month period ended September 30, 1996, gross profit as a percentage of sales
increased to 42.7% compared to 35.8% in the same period last year. Gross profit
as a percentage of systems sales increased to 45.9% from 39.5% for the same six
month period last year. Gross profit as a percentage of maintenance sales
increased to 37.5% in the six month period ended September 30, 1996 compared to
26.2% in the same period last year. The increase in gross profit percentage for
system sales was primarily due to increased manufacturing and purchasing
efficiencies, and fewer machines in process with nonstandard features compared
to the same period last year.
8
<PAGE> 9
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
The increase in gross margin for maintenance sales is primarily due to an
increase in higher priced special services provided outside the standard
maintenance agreements, and more efficient use of repair parts.
OPERATING EXPENSES: Operating expenses include Selling, Administrative and
Research and Development expenses.
Selling and administrative expenses decreased to 37.1% from 42.1% as a
percentage of net sales for the three month period ended September 30, 1996
compared to the same period one year ago. Selling and administrative expenses
decreased to 38.8% from 43.5% as a percentage of net sales for the six month
period ended September 30, 1996 compared to the same period one year ago. The
decrease as a percentage of total sales was due primarily to selling and
administrative expenses increasing only 4.3% compared to the same period last
year while total sales increased by 18.4% in the same three month period. For
the six month period, selling and administrative expenses grew by only 9%
compared to the six month period last year, while total revenue increased by
22.3% in the period. This favorable trend reflects management's continued
emphasis on holding selling and administrative expenses growth to a lower rate
of increase than total sales growth.
Research and Development (R&D) expenses decreased as a percentage of
net sales to 1.5% in the three month period ended September 30, 1996 from 1.9%
for the same three month period in 1994. R&D expenses decreased as a percentage
of net sales to 1.5% in the six month period ended September 30, 1996 from 1.8%
for the same six month period in 1995. The percentage decrease was due to
expenses remaining approximately constant throughout the three and six month
periods, while revenue was increasing during the respective periods.
OTHER EXPENSES: Net interest expense increased to $70,858 for the three month
period ended September 30, 1996 from $47,036 for the same period last year. Net
interest expense increased to $118,599 for the six month period ended September
30, 1996 from $114,666 for the same period last year. This was due to the larger
balance outstanding under the Company's revolving credit agreement.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary need for liquidity is to fund operations while
increasing sales and improving gross margins. The Company derives liquidity
through systems and maintenance sales (including customer deposits), bank
borrowings, financing arrangements with third parties and,
9
<PAGE> 10
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
from time to time, sales of its equity securities. During the three month period
ended September 30, 1996, the Company had a positive cash flow from operating
activities of $6,410 compared to a negative cash flow of $848,962, for the same
three month period in 1995. A significant reason for the positive cash flow in
the three month period ended September 30, 1996 was the Company's realization of
a net profit for the three month period of $40,869 compared to a net loss of
$233,211 in the same three month period in 1995. The net profit for the six
month period ended September 30, 1996 was $67,771 compared to a net loss of
$709,235 in the same six month period in 1995. During the first six months of
this fiscal year, operating activities provided $150,376 in cash compared to a
use of cash by operating activities of $853,439 in the first six months of last
fiscal year.
The Company has a $2,000,000 revolving credit agreement with a bank of
which $1,700,000 of an available $1,750,000 is outstanding under Facility A, and
$125,000 of an available $250,000 is outstanding under Facility B at September
30, 1996. In order to induce the bank to enter into the credit facility, Mr.
Harold S. Geneen a director and stockholder of the Company, agreed to provide
the bank with sufficient cash collateral to secure all borrowings under Facility
A. The borrowings under Facility B are secured by the assets of the Company.
In the quarter ended September 30, 1996, the Company paid off a
$300,000 long term note to a bank using the restricted cash which had been held
by the bank as collateral for the note. The restricted cash in excess of the
balance of the outstanding note, $28,316, was transferred to unrestricted cash.
On September 6, 1996, the Company completed a private placement of
common stock, selling shares of $.001 par value common stock for $525,000.
Except for the revolving credit facility described above, the Company
does not have any commitments for outside funding of any kind. It must depend,
therefore, upon the generation of sufficient internally generated funds and the
remaining funds available under its revolving line of credit to fund its
operations during fiscal 1996. Based on current projections, management believes
that the Company will be able to generate sufficient funds to meet the Company's
needs for liquidity during the balance of the year. It is possible that the
Company's business may require larger amounts of capital than the Company
currently anticipates. There can be no assurance that the Company will be able
to obtain such capital.
At September 30, 1996, total Stockholders' Equity was $2,204,559
compared to Stockholders' Equity of $1,611,786 at March 31, 1996. Although there
are no assurances of success, it is anticipated that the Company will continue
to increase its net worth during fiscal 1997.
10
<PAGE> 11
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
FACTORS THAT MAY AFFECT FUTURE PERFORMANCE
This report contains forward looking statements based on current
expectations that involve a number of risks and uncertainties. The factors that
could cause actual results to differ materially include the following: general
economic conditions and growth rates in the finishing and related industries,
competitive factors and pricing pressures, changes in the Company's product mix,
technological obsolescence of existing products and the timely development and
acceptance of new products, inventory risks due to shifts in market demands,
component constraints and shortages, and the ramp-up and expansion of
manufacturing capacity.
ITEM 3 - LEGAL PROCEEDINGS
Mayer-Wittman Joint Ventures, Inc. ("MWJV") brought suit against the
Company in the Connecticut Superior Court for the Judicial District of
Stamford/Norwalk at Stamford on October 13, 1993. MWJV alleged breach of
written contract, breach of oral contract, unjust enrichment and promissory
estoppel in connection with the investment banking services plaintiff
purportedly rendered to the Company in the period December 14, 1990 to October
14, 1992. The case was tried before a Connecticut State Trial Referee during
November, 1995, and a written decision was filed on March 16, 1996. The Referee
ruled in the Company's favor on the first four counts of the complaint and
against the Company on the fifth count. Judgment was finally entered on August
28, 1996 in the principal amount of $110,000 plus interest at the rate of 10%
per year since October 1992. The Company is paying the judgment in installments
of $25,000 per month through April 1997. The full amount of the judgment
including interest has been accrued on the Company's financial statements in
prior periods.
A former employee who was terminated from employment on December 3,
1993, filed an application for a prejudgment remedy in the Connecticut Superior
Court for the Judicial District of Fairfield at Bridgeport on January 28, 1994
seeking an attachment of $300,000 on Company assets. On March 8, 1995, the
court issued a written decision denying the employee's application, holding
that the employee had failed to demonstrate "probable cause" that a judgment
would be rendered in his favor should the case proceed to trial. On June 12,
1995, the Company was served with a complaint despite the denial of the
prejudgment remedy application. The complaint attempts in three counts to set
out claims or wrongful discharge under Connecticut common law exceptions to the
employment-at-will doctrine. The case was claimed for a jury trial, which
has been set for April, 1997.
11
<PAGE> 12
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
PART II - OTHER INFORMATION
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS
The 1996 Annual Meeting of Stockholders of the Company was convened on
August 27, 1996. The following persons were elected directors of the Company by
the holders of the Company's Common Stock, par value $.001 per share, with each
person having received the votes indicated:
Nominee For Against
------- --- -------
James H. Whitney 3,630,657 30,729
Allan W. Morton 3,630,657 30,729
Frederick W. Kolling III 3,630,657 30,729
At the meeting, the holders of the Company's Common Stock also ratified
and approved the appointment of Arthur Andersen LLP as the Company's independent
public accountants for the current fiscal year. The holders of 3,630,257 shares
voted for, 29,929 shares voted against, and 1,200 shares abstained from voting
on this proposal.
Immediately prior to the meeting, the holders of the Company's Series B
Common Stock, par value $.001 per share, took action by unanimous written
consent of such holders to elect Messrs. Harold S. Geneen, Gerald H. Newman, Guy
W. Fiske and J. Kenneth Hickman directors of the Company.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8 - K
(A) EXHIBITS ON FORM 8-K
10.3 -- Building lease between the Company and UNC Incorporated,
dated July 31, 1996
(B) REPORTS ON FORM 8-K
NO REPORT ON FORM 8-K WAS FILED BY GUNTHER INTERNATIONAL, LTD. DURING THE
QUARTER ENDED SEPTEMBER 30, 1996.
12
<PAGE> 13
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
GUNTHER INTERNATIONAL, LTD
(REGISTRANT)
/s/ Frederick W. Kolling III Date: November 12, 1996
----------------------------
FREDERICK W. KOLLING III
VICE PRESIDENT, CHIEF FINANCIAL OFFICER
AND TREASURER
(ON BEHALF OF THE REGISTRANT AND AS
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
13
<PAGE> 14
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
EXHIBIT INDEX
Pages in
Sequentially
Exhibit Numbered
Number Description Copy
- ------ ----------- ----
10.3 -- Building lease between the Company and UNC
Incorporated, dated July 31, 1996 15 - 33
10.4 -- Promissory Note dated September 9, 1996 between
James H. Whitney, CEO, Gunther International, Ltd.
and the Company 34 - 35
27 -- Financial Data Schedule 36
14
<PAGE> 1
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
EXHIBIT 10.3
15
<PAGE> 2
LEASE
THIS LEASE (the "Lease"), entered into on July 31, 1996, by and between
UNC INCORPORATED, a Delaware corporation with its principal place of business in
Annapolis, Maryland (the "Landlord") and GUNTHER INTERNATIONAL, LTD., a Delaware
corporation with its principal place of business in Norwich, Connecticut (the
"Tenant").
ARTICLE 1. PREMISES; TERM
1.1 For and in consideration of the covenants and conditions
hereinafter set forth, Landlord agrees to lease and Tenant agrees to take the
property described in Schedule A hereto, together with all buildings and
improvements thereon, hereinafter referred to as the "Premises."
1.2 The term of this Lease shall commence on the date hereof (the
"Commencement Date") and shall end on September 30, 1999.
1.3 Tenant at its sole cost and expense shall perform the repairs set
forth in Schedule B hereto and shall have the same substantially completed
within ninety (90) days after the Commencement Date. Tenant's failure to have
such repairs substantially completed within such ninety (90) day period shall be
default hereunder.
ARTICLE 2. RENT
2.1 Rent. Tenant may occupy and possess the Premises for all purposes
from the date hereof until October 31, 1996 without the payment of rent. The
rent reserved under this Lease ("Rent") shall commence to accrue on November 1,
1996 (the "Rent Commencement Date") and shall be in the following amounts:
(a) From November 1, 1996 through July 31, 1997: $247,500.00,
payable in equal monthly installments of $27,500.00 each, payable on the first
day of each calendar month;
(b) From August 1, 1997 through July 31, 1998: $346,500.00,
payable in equal monthly installments of $28,875.00 each, payable on the first
day of each calendar month; and
(c) From August 1, 1998 through September 30, 1999:
$420,000.00, payable in equal monthly installments of $30,000.00 each, payable
on the first day of each calendar month.
2.2 Late Payment Charge. If any installment of Rent or any other
charges payable under this Lease shall remain unpaid for more than ten (10) days
past the date due, a late payment charge of ten (10%) percent of the payment due
shall be immediately due and owing from Tenant.
ARTICLE 3. UTILITIES; SECURITY SYSTEM.
Tenant will pay the appropriate suppliers for all water, gas,
electricity, light, heat, telephone, power, and other utilities, communications,
and security system services (if any) used by Tenant on the Premises during the
term of this Lease, whether or not the services are billed directly to Tenant.
Tenant will procure, or cause to be procured, without cost to Landlord, any and
all necessary permits, licenses, or other authorizations required for the lawful
and proper installation and maintenance upon the Premises of wires, pipes,
conduits, tubes, and other equipment and appliances which are added to the
Premises by Tenant. Landlord, upon request of Tenant, and at the sole expense
and liability of Tenant, will join with
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Tenant in any application required for obtaining or continuing any of such
services. Landlord hereby represents to Tenant that the Premises are serviced by
water, gas, electric, sewer and telephone services which have adequate capacity
for use of the Premises for manufacturing and related office use.
ARTICLE 4. USE OF PREMISES.
4.1 Permitted Uses. Tenant shall occupy the Premises for any lawful
purpose. Tenant acknowledges that neither Landlord nor any representative or
agent thereof has made any representation or warranty to Tenant as to the
suitability of the Premises to the conduct of Tenant's business.
4.2 Violation of Certificate of Occupancy. Tenant will not at any time
use or occupy the Premises in violation of the certificate of occupancy issued
for the Premises, and in the event that any department of local or state
government bodies shall hereafter at any time contend and/or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of such certificate of occupancy, Tenant
shall, upon five (5) days' written notice from Landlord, immediately discontinue
such use of the Premises; provided, however, Tenant shall have the right to
contest such governmental action by appropriate legal proceedings diligently
pursued and unless the law requires that the activity in question be
discontinued during the continuance of such proceedings, Tenant shall not have
to so discontinue such use while such contest is proceeding. Unless Tenant is
contesting such governmental action by appropriate legal proceedings as provided
in the proceeding sentence, failure by Tenant to discontinue such use after such
notice shall be considered a breach of this Lease and Landlord shall have the
right to exercise any and all rights and privileges and remedies given to
Landlord by and pursuant to the provisions of this Lease. The statement in this
Lease of the nature of business to be conducted by Tenant in the Premises shall
not be deemed or construed to constitute a representation or guaranty by
Landlord that such business may be conducted in the Premises or is lawful or
permissible under any certificate of occupancy issued for the Premises; or is
otherwise permitted by law. Landlord hereby represents that it has no knowledge
of any notice of violation of the Certificate of Occupancy or any other
violation of any law, rule or regulation with respect to the Premises.
4.3 Compliance with Law. Except as provided in the last sentence of this
Section 4.3, Tenant shall, at its sole cost and expense, comply with all
federal, state, town and municipal statutes, ordinances and regulations in force
during the term of this Lease relating to Tenant's particular use of the
Premises and with any direction of any public officer, pursuant to law, which
shall impose any violation, order or duty upon Landlord or Tenant with respect
to Tenant's particular use of the Premises. Should any standard or regulation
affecting Tenant's use of the Premises now or hereafter be imposed on Landlord
or Tenant by any governmental body, federal, state or local, charged with the
establishment, regulation and enforcement of occupational, health or safety
standards for employers, employees, or lessees, then Tenant agrees, at its sole
cost and expense, to comply promptly with such standards or regulations.
Notwithstanding the foregoing, Landlord at its sole cost and expense shall be
responsible for compliance with all federal, state, town and municipal statutes,
ordinances and regulations in force during the term of this Lease which relate
to the Premises and would be applicable with respect to the use of the Premises
by any tenant for manufacturing and related office uses and with any direction
of any public officer, pursuant to law, which shall impose any violation, order
or duty upon Landlord or Tenant with respect to the Premises which do not relate
to Tenant's operation of its business at the Premises.
4.4 ADA Compliance. Without limiting Section 4.3 above, Tenant agrees
that its use of the Premises shall be in compliance at all times during the term
of this Lease with the Americans with Disabilities Act. In the event that any
alterations or modifications to the Premises are now or hereafter required under
the Americans with Disabilities Act without regard to Tenant's use of the
Premises, then Landlord shall be solely responsible for such alterations and
improvements at its sole cost and expense.
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Tenant, at its sole cost and expense, shall perform all alterations and
improvements to the Premises now or hereafter required by the Americans with
Disabilities Act due to Tenant's use of the Premises, whether such use is as
described under Section 4.1 above, or because of a change of use of the Premises
by Tenant from the uses permitted under Section 4.1 above. All alterations or
improvements that Tenant is required to perform under this Section 4.4 in order
to comply with the Americans with Disabilities Act shall be performed in
accordance with the procedures set forth in Article 6 hereof. All alterations
and improvements to the Premises by Tenant made pursuant to Article 6 hereof
shall be performed in full compliance with the Americans with Disabilities Act.
Tenant shall indemnify, defend and hold harmless Landlord and its
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, penalties, claims, liability, expenses and
actions of every kind, and all costs associated therewith (including, without
limitation, reasonable attorneys' and consultants' fees) arising out of or in
any way connected with Tenant's failure to comply with the Americans with
Disabilities Act as required above.
Landlord shall indemnify, defend and hold harmless Tenant and its
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, penalties, claims, liability, expenses and
actions of every kind, and all costs associated therewith (including, without
limitation, reasonable attorney's and consultants' fees) arising out of or in
any way connected with Landlord's failure to comply with the Americans with
Disabilities Act as required above.
ARTICLE 5. MAINTENANCE AND REPAIR.
5.1 Tenant Obligations to Maintain, etc. Except as expressly
hereinafter provided, Tenant shall, at its sole cost and expense, maintain the
Premises and make all non-capital repairs, and routine maintenance to the
Premises, including without limitation the heating, ventilating, air
conditioning, mechanical, electrical, elevator, and plumbing systems, security
systems and the fixtures and appurtenances to the Premises as and when needed to
preserve them in good working order and condition and regardless of whether the
repairs are ordinary or extraordinary, foreseeable or unforeseeable, or the
fault or not the fault of Tenant, its agents, employees, invitees, visitors, or
contractors; provided that Landlord shall be responsible for (i) all capital and
structural repairs, restorations and replacements of the foregoing systems and
the roof, foundation and external walls and (ii) all non-capital repairs to the
foregoing systems which are required due to the negligence or willful misconduct
of Landlord, or its agents, employees, invitees, visitors or contractors. For
purposes hereof, a "capital" repair shall be one which is so treated under
generally accepted accounting principles ("GAAP"). Without limiting the
generality of the foregoing, Tenant shall be responsible for and shall perform
or cause to be performed all window cleaning, janitorial services, trash or
rubbish removal, snow removal, and general landscaping at the Premises, and
Tenant shall maintain all parking areas, roadways and driveways within the
Premises and keep the same free from accumulation of snow and ice. In performing
its obligations under this Article 5, Tenant shall enter into contracts with
respect to maintenance, repair and other support services for the Premises with
qualified and (where appropriate) licensed third party contractors and vendors
reasonably acceptable to Landlord. All costs associated with such contracts
shall be borne by Tenant and Tenant hereby agrees to promptly pay all such costs
when due. All repairs, restorations, and replacements will be in quality and
class equal to the original work or installations. Such maintenance contracts
shall include provision for inspections of the HVAC system, sprinkler systems,
alarm security systems, and irrigation no less frequently than quarterly. If
Tenant fails to commence to make repairs or perform routine maintenance for
which Tenant is responsible hereunder within ten (10) days after notice by
Landlord or thereafter fails to diligently pursue the same, Landlord may make
them at the expense of Tenant and the expense will be additional rent to be paid
by Tenant within fifteen (15) days after delivery of a statement for the
expense.
5.2 Landlord Obligation to Repair Air Conditioning. Notwithstanding any
provision of Section 5.1 hereof to the contrary, Landlord at its sole cost and
expense shall restore the air conditioning
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system for the Premises to good working order, including the replacement of any
components thereof necessary to render the system operable, such work to be
completed by October 31, 1996. Thereafter, Tenant shall maintain and repair such
system only to the extent of lubrication, replacement of filters, and routine
maintenance. Replacement of a component other than filters shall be considered a
capital repair under Section 5.1 hereof.
ARTICLE 6. ALTERATION.
6.1 Conditions for Alteration. Except for the work described in Schedule
B hereto, Tenant shall not make, or suffer to be made, any additions,
alterations or improvements to the Premises (collectively "Tenant's
Improvements") or any part thereof, without first obtaining the written consent
of Landlord on the following terms and conditions:
(a) Tenant shall notify Landlord in writing specifying in detail the
alterations or additions contemplated;
(b) Such notice shall be accompanied by a plan, blueprint or diagram
showing such proposed alterations or additions;
(c) Landlord shall within ten (10) days indicate in writing its approval
or disapproval of said contemplated alterations or addition which approval shall
not be unreasonably withheld;
(d) The Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of any such
alterations or additions and for final approval thereof upon completion, and
shall cause the same to be performed in compliance therewith and with all
applicable laws and requirements of public authorities, and in a good and
workmanlike manner using only good grades of materials.
(e) No such alterations or additions shall constitute the basis for a
claim against Landlord, nor a lien or charge upon or against the Premises, and
if at any time any such claim, lien or charge shall be filed against the
Premises, Tenant shall cause such claim, lien or charge to be properly released
of record as provided in Section 6.2 hereof.
(f) Tenant shall pay for all materials constituting such alterations or
additions, and Tenant agrees that none of such materials shall be at any time
subject to or encumbered by any lien, security interest, encumbrance, charge,
installment sales contract or the interest of any other person, firm or
corporation whether created voluntarily or involuntarily.
(g) If the cost of the proposed alterations is more than Thirty Thousand
Dollars ($30,000.00), Tenant shall also furnish a bond agreeing to indemnify
Landlord against any and all claims, losses or damages resulting from the
failure of Tenant, its agents, servants or employees or independent contractors
fully to complete said alterations or additions in accordance with said plan or
blue print, or fully to pay therefor; or to remove or bond any and all
mechanic's liens filed against the Premises, for claims for work done or
materials furnished. Such bond shall be in an insurance company or surety
company, authorized to do business in the State of Connecticut, satisfactory to
Landlord; and
(h) Tenant shall deliver to Landlord prior to commencement of any
proposed alterations evidence that all contractors and subcontractors who are to
perform such alterations have in place such insurance as Landlord shall
reasonably require, naming Landlord as an additional insured.
6.2 Discharge of Liens. Tenant shall not create or permit to be created
or to remain, and shall discharge, any mechanic's, laborer's or materialman's
lien or any conditional sale, title retention agreement
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or chattel mortgage, which might be or become a lien, encumbrance or charge upon
the Premises or any part thereof. If any mechanic's, laborer's or materialman's
lien shall at any time be filed against the Premises or any part thereof as a
result of work performed by or on behalf of Tenant or materials supplied to
Tenant, Tenant, within thirty (30) days after notice of the filing thereof,
shall cause the same to be discharged of record by payment, deposit, bond, order
of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause
such lien to be discharged within the period aforesaid, then, in addition to any
other right or remedy, after ten (10) days' notice to Tenant, Landlord may, but
shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by
bonding proceedings, and in any such event Landlord shall be entitled, if
Landlord so elects, to compel the prosecution of an action for the foreclosure
of such lien by the lienor and to pay the amount of the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by Landlord and
all costs and expenses incurred by Landlord in connection therewith, together
with interest thereon at the rate of ten percent (10%) per annum from the
respective dates of Landlord's making of the payment or incurring of the cost
and expense shall constitute additional rent payable by Tenant under this Lease
and shall be paid by Tenant to Landlord on demand.
6.3 Alterations to Become Landlord Property. Any additions, alterations
or improvements to the Premises, including carpeting, partitions and fixtures of
any kind, shall, at Landlord's option, become at once a part of the realty and
belong to Landlord, except for furniture, trade fixtures, furnishings, machinery
and equipment belonging to Tenant. If requested by Landlord, Tenant shall
execute (or cause to be executed) any and all documents necessary or appropriate
to evidence that title to any additions, alterations or improvements is in
Landlord and to terminate or extinguish any lien or other encumbrance on title
to such additions, alterations or improvements. If Landlord elects not to have
such alterations or improvements become property of Landlord, then Tenant shall
at its sole cost remove such alterations and improvements from the Premises upon
termination of this Lease and shall restore the Premises to the condition they
were in when received by Tenant, in accordance with Article 11 hereof.
ARTICLE 7. BREACH AND LANDLORD'S REMEDIES.
7.1 Breach. As used in this Lease, "Breach" means any of the following:
(a) The failure of Tenant to pay within ten (10) days of when
due any Rent, monies or charges required by this Lease to be paid or caused to
be paid by Tenant.
(b) The failure of Tenant to do any act, other than the payment
of Rent, monies or charges, required by this Lease to be done or caused to be
done by Tenant, within thirty (30) days after receipt by Tenant of written
notice from Landlord stating that such act to be done by Tenant has not been
done. In the event such act cannot be accomplished within said thirty (30) day
period, then Tenant, to preclude a breach, must commence the accomplishment of
such act within said thirty (30) day period and thereafter proceed with
diligence and good faith to accomplish same.
(c) Tenant's causing, permitting or suffering to be done any
act: (i) required by this Lease to have prior written consent of Landlord,
unless such consent is so obtained; or (ii) prohibited by this Lease which
condition continues unremedied by the Tenant for more than thirty (30) days
after notice from Landlord.
(d) Tenant's abandonment or vacation of the Premises or
failure to occupy the Premises for more than ten (10) consecutive days.
(e) Any (i) attachment, execution or other judicial levy upon
the leasehold estate hereunder; (ii) assignment of said leasehold estate for the
direct or indirect benefit of creditors of Tenant; (iii) any agreement whereby
Tenant loses control of its business to a committee of its creditors; (iv)
judicial
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appointment of a receiver or similar officer to take possession of said
leasehold estate or the Premises; or (v) filing of any petition by, for or
against Tenant or filing for a debtor's proceeding under any chapter of Federal
bankruptcy law or state bankruptcy law, unless stayed released or terminated
within sixty (60) days of said filing.
7.2 Remedies. Following the occurrence of a Breach, Landlord, without
notice to Tenant in any instance (except where expressly provided for below) may
do any one or more of the following:
(a) perform, on behalf and at the expense of Tenant, any obligation of
Tenant under this Lease which Tenant has failed to perform, the reasonable cost
of which performance by Landlord together with interest thereon at the rate of
ten percent (10%) per annum from the date of such expenditure shall be payable
by Tenant to Landlord upon demand;
(b) terminate this Lease and the tenancy created hereby by giving at
least seven (7) days' notice of such election to Tenant;
(c) re-enter the Premises by summary proceedings, or other lawful
manner, and remove Tenant and all other persons and property from the Premises,
and store such property in a public warehouse or elsewhere at the cost of and
for the account of Tenant without Landlord being liable for trespass or for any
loss or damage occasioned thereby; and
(d) exercise any other legal or equitable right or remedy Landlord may
have.
7.3 Damages. If this Lease or Tenant's possessory interest pursuant
thereto is terminated by Landlord pursuant to this Article, Tenant nevertheless
shall remain liable for (a) all Rent and other sums due and all damages which
Landlord sustained to the date of such termination, and all costs, fees and
expenses, including reasonable attorneys' fees, incurred by Landlord in pursuit
of its remedies hereunder and/or in connection with any bankruptcy proceedings
of Tenant, if any, and/or in connection with renting the Premises to others from
time to time (collectively, "Termination Damages") plus (b) additional damages
which shall be an amount equal to (as of the date of such termination) all Rent
which, but for the termination of this Lease, would have become due during the
remainder of the term of this Lease (collectively, "Residual Damages"). If this
Lease or Tenant's possessory interest pursuant thereto is terminated pursuant to
this Article, Landlord may rent the Premises or any part thereof, alone or
together with other Premises, for such period or periods which may be greater or
less than the period which otherwise would have constituted the balance of the
term of this Lease, and on such terms and conditions (which may include
concessions for free rent and alterations of the Premises) as Landlord, in its
reasonable discretion, may determine. If Landlord relets the Premises, Landlord
shall reimburse Tenant from any rent received prior to the end of what otherwise
would have constituted the term of this Lease from such reletting (in an amount
up to but not exceeding the Residual Damages) if and when Landlord receives any
such rent. All costs, including but not limited to reasonable attorneys' fees,
incurred by Landlord in reletting the Premises and enforcing payment of any such
rent shall be deducted from amounts otherwise reimbursable to Tenant hereunder
to the extent not recovered from such new tenant.
Any and all rights and remedies which Landlord may have under this
Lease, at law or in equity, shall be cumulative and shall not be deemed
inconsistent with each other and any two or more or all of such rights and
remedies may be exercised at the same time.
ARTICLE 8. INSURANCE
8.1 "All-Risk" Coverage. Landlord will, at its sole expense, obtain and
keep in force, during the term of this Lease, "all-risk" coverage insurance for
the Premises naming Landlord as the insured in the customary form in the State
of Connecticut for buildings and improvements of similar character, on all
buildings and improvements now or after this date located on the Premises.
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8.2 General Liability. Tenant will, at its sole expense, obtain and
keep in force during the term of this Lease commercial general liability
insurance with a combined single limit of not less than two million dollars
($2,000,000) for injury to or death of any one person, for injury to or death of
any number of persons in one occurrence, and for damage to property, insuring
against any and all liability of Landlord and Tenant, including without
limitation coverage for contractual liability, broad form property damage, and
non-owned automobile liability, with respect to the Premises or arising out of
the maintenance, use, or occupancy of the Premises. All insurance will be
noncontributing with any insurance that may be carried by Landlord and will
contain a provision that Landlord, although named as an insured, will
nevertheless be entitled to recover under the policy for any loss, injury, or
damage to Landlord, its agents, and employees, or the property of such persons.
8.3 Other Matters. All insurance required in this paragraph and all
renewals of it will be issued by companies authorized to transact business in
the State of Connecticut, and rated at least A+ Class X by Best's Insurance
Reports (property liability) or approved by Landlord. All insurance policies
will be subject to approval by Landlord and any lender holding a mortgage on the
Premises who is identified to Tenant by written notice from Landlord (each an
"Identified Mortgagee") as to form and substance; will expressly provide that
the policies will not be canceled or altered without thirty (30) days' prior
written notice to Landlord and any Identified Mortgagee, in the case of
"all-risk" coverage insurance, and to Landlord, in the case of general liability
insurance; and will, to the extent obtainable, provide that no act or omission
of Tenant which would otherwise result in forfeiture or reduction of the
insurance will affect or limit the obligation of the insurance company to pay
the amount of any loss sustained. Tenant may satisfy its obligation under this
paragraph by appropriate endorsements of its blanket insurance policies. The net
proceeds in the case of "all-risk" coverage insurance shall be payable to the
Landlord and shall be applied in accordance with this Lease. Tenant hereby
grants to Landlord a power of attorney and appoints Landlord its
attorney-in-fact with respect to any checks or other items relating to payment
by the insurer of the proceeds of such insurance.
8.4 Additional Insureds. All policies of liability insurance that
Tenant is obligated to maintain according to this Lease (other than any policy
of worker's compensation insurance) will name Landlord and any Identified
Mortgagee as additional insureds. Original or copies of original policies
(together with copies of the endorsements naming Landlord and any Identified
Mortgagee, as additional insureds) or Certificate of Insurance with respect
thereto and evidence of the payment of all premiums of such policies will be
delivered to Landlord prior to Tenant's occupancy of the Premises and from time
to time at least thirty (30) days prior to the expiration of the term of each
policy. All public liability, property damage liability, and casualty policies
maintained by Tenant will be written as primary policies, not contributing with
and not in excess of coverage that Landlord may carry. No insurance required to
be maintained by Tenant by this paragraph will be subject to any deductible in
excess of $10,000 without Landlord's prior written consent.
8.5 Waiver. Landlord and Tenant waive all rights to recover against
each other or against any other tenant or occupant of the building, or against
the officers, directors, shareholders, partners, joint venturers, employees,
agents, customers, invitees, or business visitors of each of theirs or of any
other tenant or occupant of the building, for any loss or damage arising from
any cause covered by any insurance required to be carried by each of them
pursuant to this Article 8 or any other insurance actually carried by each of
them. Landlord and Tenant will cause their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all policies of
insurance carried in connection with the building or the Premises or the
contents of either of them.
8.6 Other Insurance. Tenant shall obtain such additional amounts and
types of insurance coverage as Landlord may reasonably request from time to
time. If Tenant fails to comply with any of the insurance requirements of this
Lease, Landlord may obtain such insurance and keep the same in effect and Tenant
shall pay Landlord as additional rent the premium cost thereof with the next
installment of Rent otherwise due.
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ARTICLE 9. DAMAGE AND DESTRUCTION
9.1 Landlord's Obligation to Rebuild. (a) If the Premises are damaged
or destroyed by reason of fire or any other cause, Tenant will immediately
notify Landlord. In the event that thirty percent (30%) or less of the building
on the Premises shall be destroyed or materially damaged, and the same is
capable of repair to its condition prior to the casualty within six (6) months
of the casualty, then, Landlord will promptly repair or rebuild the building on
the Premises at Landlord's expense, so as to make the building at least equal in
value to the building existing immediately prior to the occurrence and as nearly
similar to it in character as is practicable and reasonable. In the event that
Landlord shall not complete such repairs within such six (6) month period,
Tenant shall have the right to terminate the term of this Lease by giving
written notice of such termination to Landlord within thirty (30) days after the
end of such six (6) month period.
9.2 Landlord Right to Rebuild or Terminate Lease. In the event that
more than thirty percent (30%) but less than seventy percent (70%) of the
building on the Premises shall be destroyed or materially damaged, and the same
is capable of repair to its condition prior to the casualty within six (6)
months of the casualty, then Landlord shall have the option, which shall be
given in writing within thirty days (30) of the casualty, of either (i)
terminating this Lease as of the date of such casualty or (ii) repairing or
rebuilding the Premises. In the event Landlord elects to repair or rebuild the
Premises, all insurance proceeds shall be paid to Landlord and Landlord shall be
responsible for promptly repairing or rebuilding the building on the Premises so
as to make it fully adequate for use by Tenant as contemplated by this Lease.
Upon completion of such repair and rebuilding, any balance of the fire or
casualty proceeds of insurance will be paid to Landlord. In the event that
Landlord shall not complete such repairs within six (6) months of the casualty,
Tenant shall have the right to terminate the term of this Lease by giving
written notice of such termination to Landlord within thirty (30) days after the
end of such six (6) month period.
9.3 Termination after Casualty by Either Party. In the event that
seventy percent (70%) or more of the building on the Premises is substantially
destroyed or damaged by fire or other casualty or the Premises is not capable of
being repaired to its condition prior to the casualty within six (6) months of
the casualty, then either party hereto shall have the right by written notice to
the other delivered within thirty (30) days of such casualty to terminate this
Lease as of the date of such casualty, in which event the Landlord shall retain
all fire or casualty insurance proceeds. Either party hereto shall also have the
right to terminate this Lease by written notice to the other in the event that
any material damage or destruction to the Premises from fire or casualty occurs
in the last six (6) months of the term of this Lease and in such event Landlord
shall retain all fire or casualty insurance proceeds.
9.4 Rent Abatement. Rent shall equitably abate pending the repairs or
rebuilding to the extent that the building or portions thereof is (are) rendered
untenantable.
ARTICLE 10. CONDEMNATION
10.1 Total Taking. If, by exercise of the right of eminent domain or by
conveyance made in response to the threat of the exercise of such right (in
either case a "taking"), all of the Premises are taken, or if so much of the
Premises are taken that the Premises (even if the restorations described in
paragraph 10.2 were to be made) cannot be used by Tenant for the purposes for
which they were used immediately before the taking, or, at Landlord's or
Tenant's option, if the taking occurs in the last six (6) months of the term of
this Lease, this Lease will end on the earlier of the vesting of title to the
Premises in the condemning authority or the taking of possession of the Premises
by the condemning authority (in either case the "ending date"). If this Lease
ends according to this paragraph 10.1, prepaid Rent will be appropriately
prorated to the ending date. The award in a taking subject to this paragraph
10.1 will be allocated according to paragraph 10.4.
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10.2 Partial Taking. If, after a taking, so much of the Premises
remains that the Premises can be used for substantially the same purposes for
which they were used immediately before the taking:
(a) this Lease will end on the ending date as to the part of the
Premises which is taken;
(b) prepaid Rent will be appropriately allocated to the part of the
Premises which is taken and prorated to the ending date;
(c) beginning on the day after the ending date, Rent for so much of the
Premises as remains will be reduced in the proportion of the floor area of the
building remaining after the taking to the floor area of the building before the
taking; and
(d) at its cost, Landlord will restore so much of the Premises as
remains to a sound architectural unit substantially suitable for the purposes
for which it was used immediately before the taking.
10.3 Tenant's Award. In connection with any taking subject to paragraph
10.1 or 10.2, Tenant may prosecute its own claim by separate proceedings against
the condemning authority for damages legally due to it (such as the loss of
fixtures which Tenant was entitled to remove and moving expenses) only so long
as Tenant's award does not diminish or otherwise adversely affect Landlord's
award.
10.4 Allocation of an Award for a Total Taking. All awards, settlements
and the like for the taking of the Premises, or any part thereof, shall be paid
to Landlord and shall belong to Landlord absolutely, and Tenant shall have no
claim or right against Landlord for the value of any unexpired term of this
Lease.
ARTICLE 11. SURRENDER.
11.1 Tenant's possession of the Premises shall constitute Tenant's
acknowledgment that the Premises are in good and tenantable condition, that the
Tenant accepts the Premises in their "as is" condition, and that Tenant agrees
on the last day of the term of this Lease, or on any termination of this Lease,
to surrender the Premises with said appurtenances broom clean and in the same
condition as when received, reasonable wear and tear based upon good maintenance
practices excepted.
11.2 By the expiration of the term of this Lease or on any termination
of this Lease, Tenant shall remove all personal property, trade fixtures,
furnishings, consumable supplies, and machinery and equipment not paid for by
Landlord which are or hereafter may be placed upon the Premises and whether or
not affixed or annexed, and any alterations or improvements to the Premises
which Landlord elects under Article 6 hereof not to retain. The cost of any such
removal shall be borne solely by Tenant and shall include the cost of repairing
any damage to the Premises by such removal and restoring the Premises to the
same condition as when received by Tenant reasonable wear and tear based upon
good maintenance practices excepted.
11.3 If Tenant fails to remove any personal property or trade fixtures,
at Landlord's sole option, the same shall be conclusively deemed to have been
abandoned by Tenant and shall belong to Landlord absolutely without claim or
right on the part of Tenant, subject to the rights of any third parties.
ARTICLE 12. ASSIGNMENT, SUBLETTING AND ENCUMBERING;
DISPOSITION BY LANDLORD
12.1 Requirements for Assignment, etc. Tenant, for itself, its
successors and assigns, expressly covenants that it shall not assign, mortgage
or encumber this Lease, or sublet, or use or permit the Premises
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<PAGE> 11
or any part thereof to be used by others without the prior written consent of
Landlord in each instance, which consent may be withheld in Landlord's absolute
discretion. If this Lease is assigned, or if the Premises or any part thereof
are sublet or occupied by anybody other than Tenant, Landlord may after and
during the continuance of any breach collect Rent from the assignee, subtenant
or occupant, and apply the net amount collected to the Rent herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an
assignment or subletting shall not in any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or subletting. Notwithstanding any assignment or sublease, Tenant
shall remain fully liable on this Lease and shall not be released from
performing any of the terms, covenants and conditions of this Lease.
12.2 Disposition. Landlord shall be entitled to convey and otherwise
dispose of the Premises and shall be entirely free and released of all covenants
and obligations of the Landlord after the Premises are so conveyed other than
the obligation to return to Tenant all or any portion of the security deposit
which is not delivered to such purchaser, and Landlord shall not be subject to
any liability resulting from any act or omission or event occurring after such
conveyance other than with respect to the security deposit as set forth above.
The purchaser, or any person who takes title to the Premises from the Landlord
or any person who subsequently holds title to the Premises other than by reason
of foreclosure, shall be deemed to have assumed and agreed to carry out any and
all covenants on Landlord's part to be performed under this Lease. No further
agreement will be required between the Landlord and Tenant and any person
holding title subsequent to Landlord in connection with the assumption of the
obligations of Landlord hereunder.
ARTICLE 13. INDEMNIFICATION OF LANDLORD; LIMITATION OF LANDLORD'S LIABILITY.
13.1 Indemnity. Except with respect to any of the following which are
caused by, or arise out of, the negligence or willful misconduct of Landlord or
any of its officers, directors, partners, employees, agents, licensees, invitees
or contractors for which Tenant shall have no liability, Tenant shall indemnify
and hold Landlord and its officers, directors, shareholders, agents and
employees (the "Indemnified Parties") harmless from any and all claims, actions,
liabilities and damages (including attorneys' fees of any Indemnified Party for
its defense) arising in whole or in part from Tenant's (i) use and occupancy of
the Premises, (ii) conduct of its business and any other activity in or about
the Premises, (iii) breach or default in the performance of any obligation of
Tenant under this Lease, and (iv) negligence or that of any officer, director,
partner, employee, agent, licensee or invitee of Tenant. In case any action or
proceeding is brought against Landlord by reason of such claim for which Tenant
is responsible as provided above, Tenant, upon notice from Landlord, shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises from any cause other than the negligence or willful misconduct of
Landlord or any of its officers, directors, partners, employees, agents,
licensees, invitees or contractors, and Tenant hereby waives all claims in
respect thereof against Landlord.
13.2 Limitation of Liability. Unless the same shall be caused by the
negligence or willful misconduct of Landlord or any of its officers, directors,
partners, employees, agents, licensees, invitees or contractors, Landlord or its
agents shall not be liable for any loss or damage to persons or property
resulting from theft, fire, explosion, falling plaster, steam, gas, electricity,
pollution, flood, water or rain which may leak from any part of the Premises or
from the pipes, appliances or plumbing works therein or from the roof, street or
subsurfaces or whatsoever, or for interference with the light or air or for any
latent defect in the Premises. Unless the same shall be caused by the negligence
or willful misconduct of Landlord or any of its officers, directors, partners,
employees, agents, licensees, invitees or contractors,
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<PAGE> 12
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor or abatement of Rent,
and the same shall not release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall give prompt notice to Landlord in case of a
casualty or accident in the Premises.
13.3 Survival. This Article 13 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 14. SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATE.
14.1 Subordination. Provided that Tenant shall receive from the holder
of any mortgage or deed of trust encumbering all or any portion of the Premises
a non-disturbance agreement which shall provide that so long as Tenant is not in
breach of the terms of this Lease which has continued beyond any applicable
grace period, neither this Lease not Tenant's possession of the Premises will be
disturbed, Tenant herein agrees that it will at any time and from time to time
upon the request of Landlord subordinate this Lease to any mortgages or deeds of
trust, that are now or may hereafter be placed upon the Premises and to any and
all advances made or to be made thereunder, and to the interest thereon and to
all renewals, replacements or substitutions therefor, or to any other forms or
methods of financing or refinancing the Premises and any instruments executed
for said purpose, now or hereafter executed by the owners of the fee. So long as
such instruments contain the non-disturbance provisions to which Tenant is
entitled, Tenant agrees upon demand to execute, acknowledge and deliver to the
owners of the fee, without expense to said owners, any and all instruments that
may be necessary or proper to subordinate this Lease and all rights thereunder
to the lien or liens of any such mortgage or mortgages or other obligations,
upon request.
14.2 Attornment. So long as the mortgagee holding the mortgage being
foreclosed has provided Tenant with a non-disturbance agreement as provided in
Section 14.1 above, Tenant agrees to attorn to and recognize such mortgagee or
foreclosure sale purchaser of the Premises from such mortgagee as landlord under
the terms of this Lease upon such party acquiring Landlord's interest in the
Premises.
14.3 Estoppel Certificate. Tenant agrees at any time and from time to
time upon not less than ten (10) days' prior written 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, that the same is in full force and effect as modified and
stating the modification), and the dates on which the Rent and other charges
have been paid in advance, if any; provided, however, that Tenant shall not be
required to make written declarations as to any matters which to its knowledge
are inaccurate or not true. It is intended that any such statement delivered
pursuant to this subparagraph may be relied upon by any prospective purchaser,
mortgagee or assignee of any mortgagee of the Premises or any interest therein.
ARTICLE 15. LANDLORD'S ACCESS
Landlord, its agents, employees, and contractors may enter the Premises
at (i) any time in response to an emergency, and (ii) during normal business
hours after at least twenty-four (24) hours' notice to Tenant at all other times
to (a) inspect the Premises, (b) exhibit the Premises to prospective purchasers,
lenders, or tenants, (c) determine whether Tenant is complying with its
obligations in this Lease, (d) supply any other service which this Lease
requires Landlord to provide, (e) post notices of nonresponsibility or similar
notices, or (f) make repairs which this Lease requires Landlord to make;
however, all work will be done as promptly as reasonably possible and so as to
cause as little interference to Tenant as reasonably possible. Tenant waives any
claim on account of any injury or inconvenience to Tenant's business,
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<PAGE> 13
interference with Tenant's business, loss of occupancy or quiet enjoyment of the
Premises, or any other loss occasioned by such entry. Landlord will at all times
have a key with which to unlock all of the doors in the Premises (excluding
Tenant's vaults, safes, and similar areas designed in writing by Tenant in
advance). Landlord will have the right to use any means Landlord may deem proper
to open doors in the Premises and to the Premises in an emergency in order to
enter the Premises. No entry to the Premises by Landlord as provided in this
Article 15 by any means will be a forcible or unlawful entry into the Premises
or a detainer of the Premises or an eviction, actual or constructive, of Tenant
from the Premises, or any part of the Premises, nor will any entry entitle
Tenant to damages or an abatement of rent or other charges which this Lease
requires Tenant to pay.
ARTICLE 16. STIPULATION RE NO WAIVERS.
16.1 No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof, or to exercise any right or
remedy consequent upon a breach thereof, shall constitute a waiver of such
breach and shall not be deemed to be a waiver of a subsequent breach of such
term, covenant or condition. The subsequent acceptance of Rent shall not be
deemed to be a waiver of any preceding breach by Tenant of any such term,
covenant or condition of this Lease regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent. All payments from
Tenant received after breach of Tenant's obligation to pay Rent shall constitute
payment for use and occupancy and acceptance thereof by Landlord shall not
constitute waiver of the preceding breach of Tenant's failure to pay Rent.
ARTICLE 17. ATTORNEYS' FEES.
17.1 In any proceeding which Landlord or Tenant may prosecute to enforce
its rights hereunder, the unsuccessful party shall pay all costs incurred by the
prevailing party (as such parties are hereafter defined), including reasonable
attorneys' fees. Prior to commencing any proceeding the parties shall each
submit to the other a final offer of settlement. The failure of a party (as
plaintiff) to submit a settlement offer shall be deemed a demand for all the
relief requested in its complaint and the failure of a party (as defendant) to
submit a responding settlement offer within ten (10) days after its receipt of a
settlement offer shall be deemed a rejection of any relief for the benefit of
the plaintiff. If the forum in which the proceeding is heard renders a judgment
at least as favorable to a party as its settlement offer, such party shall be
deemed the prevailing party for purposes of this Article.
17.2 Notwithstanding the foregoing and in addition thereto, if a breach
shall have actually occurred hereunder Landlord shall be entitled to receipt
from Tenant of such attorneys' fees as may be incurred in connection with each
notice or demand lawfully delivered to Tenant pursuant to Article 7. Tenant
hereby acknowledges its understanding and agreement that such sums constitute
reimbursement to Landlord only of the reasonable cost to Landlord of the
preparation and delivery of each such notice caused by Tenant's breach
hereunder.
ARTICLE 18. ENVIRONMENTAL OBLIGATIONS.
18.1 Hazardous Substances. The term "Hazardous Substances", as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminates,
hazardous wastes, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental authority
including, but not limited to, Title 22a of the Connecticut General Statutes, as
amended, the Resource Conservation and Recovery Act of 1976, as amended, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, and any other federal, state or local law pertaining to the
environment.
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18.2 Environmental Compliance. (a) Landlord represents to Tenant that
as of the date hereof (i) there are no Hazardous Substances located in, on or
under the Premises and (ii) there has been no violation thereon of any federal,
state, local or municipal law, statute, ordinance, rule, regulation, code,
order, decree, decision, guideline, policies, requirements or the like
pertaining to the environment, environmental safety, or the use, generation,
refining, treatment, production, storage, processing, disposal, release or
remediation of Hazardous Substances. Tenant will, at all times during the term
of the Lease take such actions as necessary to operate its business at the
Premises in compliance with all applicable federal, state, local and municipal
laws, statutes, ordinances, rules, regulations, codes, orders, decrees,
decisions, guidelines, policies, requirements and the like pertaining to the
environment, environmental safety, or the use, generation, refining, treatment,
production, storage, processing, disposal, release or remediation of Hazardous
Substances, as may now and at any time hereafter be in effect. Such compliance
shall include filing of appropriate documents under the Emergency Planning and
Community Right-To-Know Act, 42 U.S.C. 11001. Tenant shall not have any
responsibility to comply with any such laws, statutes, ordinances or other
environmental matters to the extent the same relate to conditions which are
present on the Premises on the date hereof or which migrate to the Premises
through the ground water from any off-site source.
(b) Except for those actions for which Tenant is responsible as
provided in Section 18.2(a) above, Landlord will, at all times during the term
of this Lease, take such actions as necessary to keep the Premises in compliance
with all applicable federal, state, local and municipal laws, statutes,
ordinances, rules, regulations, codes, orders, decrees, decisions, guidelines,
policies, requirements and the like pertaining to the environment, environmental
safety, or the use, generation, refining, treatment, production, storage,
processing, disposal, release or remediation of Hazardous Substances, as may now
and at any time hereafter be in effect. Such compliance shall include filing of
appropriate documents under the Emergency Planning and Community Right-to-Know
Act, 42, U.S.C. 11001.
18.3 Inspection. For purposes of verifying Tenant's compliance with
respect to its obligations under Section 18.2(a) above and reviewing the
Tenant's continuing operations with regard to application of the Connecticut
Transfer Act, C.G.S. Section 22a-134 et seq., the Tenant shall allow the
Landlord to conduct inspections of the Premises during regular business hours
upon at least twenty-four (24) hours' prior notice to the Tenant. Such
inspections shall be conducted in a manner so as to cause as little interference
with Tenant's business as practicable.
18.4 Tenant Responsibilities. Except for Hazardous Substances which
migrate to the Premises through the ground water from any off-site source, in
the event that a release of any Hazardous Substances to, from, about or under
the Premises occurs during the term of this Lease, the Tenant shall be
responsible for all costs of investigation, professional services of
environmental consultants, lab fees, remediation, clean-up, filing fees, lost
value and any other expense, relating thereto until such time that a Connecticut
Department of Environmental Protection approved clean-up and all associated
monitoring is complete. In the event of an investigation by a licensed
environmental professional ("LEP"), the Landlord shall designate an LEP to
verify the Tenant's findings at the Tenant's sole expense. Tenant shall also be
responsible for any and all attorneys' fees suffered, sustained or incurred by
Landlord in connection with the above mentioned investigation, remediation,
clean-up and other related matters.
18.5 Environmental Indemnity. Except for Hazardous Substances which
migrate to the Premises through the ground water from any off-site source, (a)
Tenant shall indemnify, defend and hold harmless Landlord and its officers,
directors, beneficiaries, shareholders, partners, agents and employees from all
fines, suits, procedures, penalties, claims, liability, expenses and actions of
every kind, and all costs associated therewith (including, without limitation,
reasonable attorneys' and consultants' fees) arising out of or in any way
connected with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, on, under, about or from
the Premises the Premises, or from Tenant's failure to provide all information,
make all submissions, and take all steps required by all environmental laws and
by this Lease.
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(b) Landlord shall indemnify, defend and hold harmless Tenant and its
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, penalties, claims, liabilities, expenses and
actions of every kind, and all costs associated therewith (including, without
limitation, reasonable attorneys' and consultants' fees) arising out of or in
any way connected with (i) any deposit, spill, discharge, or other release of
Hazardous Substances that occurs prior to the term of this Lease, on, under,
about or from the Premises or (ii) from Landlord's failure to provide all
information, make all submissions and take all steps required by all
environmental laws other than those for which Tenant is responsible or (iii)
from any migration to the Premises through the ground water from any off-site
source.
18.6 Survival. The provisions of this Article 18 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 19. SECURITY DEPOSIT
Tenant has deposited Twenty-Seven Thousand Five Hundred Dollars
($27,500) with Landlord as security for Tenant's payment of Rent and performance
of its other obligations under this Lease. If Tenant defaults in its payment of
Rent or performance of its other obligations under this Lease which default
continues beyond any applicable grace period, Landlord may use all or part of
the security deposit for the payment of Rent or any other amount in default, or
for the payment of any other amount which Landlord may spend or become obligated
to spend by reason of Tenant's default, or for the payment to Landlord of any
other loss or damage which Landlord may suffer by reason of Tenant's default. If
Landlord so uses any portion of the security deposit, Tenant will restore the
security deposit to its original amount within five (5) business days after
written demand from Landlord. The security deposit will not be a limitation on
Landlord's damages or other rights under this Lease, or a payment of liquidated
damages, or an advance payment of the Rent. If Tenant pays the Rent and performs
all of its other obligations under this Lease, Landlord will return the unused
portion of the security deposit to Tenant within thirty (30) days after the end
of the term; however, if Landlord has evidence that the security deposit has
been assigned to a permitted assignee of the Lease, Landlord will return the
security deposit to the assignee. Landlord may deliver the security deposit to
any purchaser of the Premises and be discharged from further liability with
respect to it.
ARTICLE 20. NOTICES.
20.1 Notices, requests, demands and documents required or desired to be
given hereunder shall be in writing and delivered (i) personally (ii) by a
nationally recognized overnight delivery service or (iii) or by deposit into the
United States mail, postage prepaid, certified or registered mail, addressed to
the party at the following addresses or at such other address as notice thereof
may have been given pursuant hereto.
Landlord:
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, MD 21401-7394
In each case with a copy to:
Shipman & Goodwin LLP
One American Row
Hartford, CT 06103
Attention: Coleman H. Casey, Esq.
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Tenant:
Prior to the commencement of the term of this Lease:
Gunther International, Ltd.
5 Wisconsin Avenue
Norwich, CT 06360
After commencement of the term of this Lease:
At the Premises
In each case with a copy to:
Murtha, Cullina, Richter and Pinney
City Place I
185 Asylum Street
Hartford, CT 06103
Attention: Frank J. Saccomandi, III, Esq.
If delivered personally, delivery shall be conclusively deemed
effected at such time. If delivered by overnight delivery service, delivery
shall be conclusively deemed effected the day after delivery to such overnight
delivery service. If delivered by certified or registered mail, delivery shall
be conclusively deemed effected (i) Seventy-two (72) hours after said deposit
into the mail or (ii) at the time the receipt, if used, is marked, whichever
shall first occur.
ARTICLE 21. SIGNS.
21.1 Tenant shall not affix, attach or install on any interior or
exterior walls or windows of the Premises or otherwise on the Premises any sign,
display or other visible marking without the prior written consent of Landlord,
which will not be unreasonably withheld or delayed. Any sign shall be subject to
both the written consent of Landlord and any and all applicable regulations of
any governmental authority. The installation of any sign shall be performed in a
good and workmanlike manner in accordance with all applicable laws and
regulations. At the expiration of the Lease, Tenant shall remove any and all
signs and repair and restore to its original condition any surface or site to
which such sign was affixed, all at its sole cost and expense.
21.2 Except during the last three months of the term of this Lease,
Landlord agrees not to post any "for sale" or "for lease" signs at the Premises.
ARTICLE 22. LIMITATION ON TENANT'S RECOURSE
Except with respect to the security deposit, with respect to which
Landlord and any successors to the interest of Landlord in the Premises shall
have personal liability unless released therefrom as provided in Article 19
hereof, Tenant's sole recourse against Landlord and any successor to the
interest of Landlord in the Premises is to the interest of Landlord and any
successor in the Premises. Except as provided above with respect to the security
deposit, Tenant will not have any right to satisfy any judgment which it may
have against Landlord or any successor, from any other assets of Landlord or any
successor.
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In this Article 22 the terms "Landlord" and "successor" include the
shareholders, venturers, and partners of Landlord and successor and the
officers, directors, and employees of Landlord and successor. The provisions of
this Article 22 are not intended to limit Tenant's right to seek injunctive
relief or specific performance, or Tenant's right to claim the proceeds of
insurance (if any) specifically maintained by Landlord for Tenant's benefit.
ARTICLE 23. GENERAL PROVISIONS.
23.1 Holding Over. Any holding over after the expiration of the term of
this Lease without the express or implied consent of Landlord shall be construed
to be a tenancy from month to month only, at the same terms and conditions
herein set forth, provided that Rent shall be two (2) times what it was prior to
the expiration of the Lease.
23.2 Requirements for Eviction. No agreement to accept surrender of the
Premises prior to the expiration of this Lease shall be valid unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents shall have
the power to accept the keys to the Premises prior to the termination of the
Lease. The delivery of keys to any employee of Landlord or of Landlord's agents
shall not operate as a termination of the Lease or a surrender of the Premises.
In the event of Tenant at any time desiring to have Landlord sublet the Premises
for Tenant's account, Landlord or Landlord's agent are authorized to receive
said keys for such purpose without releasing Tenant from any of the obligations
under this Lease, and Tenant hereby relieves Landlord of any liability for loss
or damage to any of Tenant's effects in connection with such subletting.
23.3 No Merger. The termination or mutual cancellation of this Lease
shall not work a merger and shall, at the option of Landlord, terminate all
subleases and subtenancies (to the extent same are permitted hereunder) or may,
at the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
23.4 Successors and Assigns. This Lease and all of the covenants and
conditions herein contained shall be binding upon and shall inure to the benefit
of the assigns and other successors in interest (to the extent permitted
hereunder) of each of the parties.
23.5 Captions. The titles or captions of the Articles of this Lease are
for reference purposes only and have no effect upon the construction or
interpretation of any part hereof. The use herein of the singular includes the
plural and vice versa, whenever and whatever the context so requires.
23.6 Entire Agreement. This Lease sets forth the entire understanding
between the parties hereto with respect to all matters referred to herein, and
all prior understandings and agreements are deemed merged herein.
23.7 Governing Law; Jurisdiction. This Lease is made and delivered
within the State of Connecticut and shall be construed and enforced in
accordance with the internal laws, as opposed to the rules governing conflicts
of laws, of the State of Connecticut. The parties hereto agree that all actions
or proceedings arising under or in connection with this Lease shall be brought
in the state or federal courts located in the State of Connecticut; and that
such courts shall have personal jurisdiction over the parties hereto and venue
shall properly lie in such courts.
23.8 Severability. If any term(s) or provision(s) of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such terms or provisions to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
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23.9 Broker. Each party hereto represents to the other that it has not
dealt with any broker or other party that may be entitled to a real estate
brokerage commission or fee in connection with this Lease, and (i) Tenant
indemnifies and holds Landlord harmless from any misrepresentation by Tenant in
this Section 23.9 and (ii) Landlord indemnifies and holds Tenant harmless from
any misrepresentation by Landlord in this Section 23.9.
23.10 Waiver of Trial by Jury. It is mutually agreed by and between
Landlord and Tenant that the respective parties hereto shall and they do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matters whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, and/or any claim of injury or damage.
23.11 Notice of Lease. This Lease shall not be recorded in the Norwich
or Franklin Land Records. Simultaneous with the execution of the Lease, Landlord
and Tenant have executed a Notice of Lease in the form of Schedule C attached
hereto which Tenant shall have the right to record in the Norwich and Franklin
Land Records.
23.12 Corporate Authority. Tenant and the persons executing this Lease
on behalf of Tenant, hereby covenant and warrant that: Tenant is a duly
constituted corporation qualified to do business in the State of Connecticut;
Tenant has taken all necessary corporate action to approve its execution of this
Lease; and such persons are duly authorized by the board of directors of Tenant
to execute and deliver this Lease on behalf of Tenant.
23.13 Amendment. The provisions hereof may not be amended, modified or
changed except by an instrument in writing signed by both parties hereto.
23.14 Quiet Enjoyment. Landlord covenants that, as long as Tenant shall
pay the Rent required to be paid hereunder and shall duly observe, perform and
comply with all of the terms, covenants and conditions of this Lease on its part
to be observed, performed or complied with, Tenant shall, subject to the terms
of this Lease, peaceably have, hold and enjoy the Premises during the term of
this Lease without hindrance by Landlord or by anybody claiming by or through
Landlord.
23.15 Tenant's Option to Purchase the Premises. Simultaneous with the
execution hereof, Landlord and Tenant have entered into an Option Agreement to
Sell and Purchase Real Estate (the "Option Agreement") pursuant to which
Landlord has granted Tenant an option to purchase the Premises under and subject
to the terms of the Option Agreement.
23.16 Consent to Jurisdiction. Landlord and Tenant hereby agree that any
state court or local court of the State of Connecticut and the United State
District Court for the District of Connecticut shall have exclusive jurisdiction
to hear and determine any claims or disputes between Landlord and Tenant
pertaining directly or indirectly to this Lease. Landlord expressly submits and
consents in advance to such jurisdiction in any action or proceeding commenced
in such courts, hereby waiving personal service of the summons and complaint, or
other process or papers issued therein, and agreeing that service of such
summons and complain, or other process or papers may be made by registered or
certified mail addressed to Landlord at the address of Landlord set forth above.
In addition to the foregoing, Landlord irrevocably designates and appoints CT
Corporation as its agent to receive on its behalf service of all process in any
such proceedings in any such court in the State of Connecticut and directs such
agent to accept such service on its behalf. The exclusive choice of forum set
forth in this Section shall not be deemed to preclude the enforcement of any
judgment obtained in such form, or the taking of any action under this Lease to
enforce same, in any appropriate jurisdiction.
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IN WITNESS WHEREOF, this Lease has been executed on the date first above
written.
LANDLORD
UNC INCORPORATED
By: /s/ Paul McLain
-------------------------------------------------
Its: Vice President, Financial Controls
TENANT
GUNTHER INTERNATIONAL, LTD.
By: /s/ Frederick W. Kolling III
-------------------------------------------------
Its: Vice President, Chief Financial Officer
33
<PAGE> 1
FORM 10-QSB
SEPTEMBER 30, 1996
GUNTHER INTERNATIONAL, LTD.
EXHIBIT 10.4
34
<PAGE> 2
PROMISSORY NOTE
September 9, 1996
I, James H. Whitney, acknowledge receipt of $40,000 from Gunther
International Ltd., today, September 9, 1996. I agree that this payment is in
the form of a twelve month note, which will be repaid prior to September 9,
1997. If repayment has not been made by that time, the maturity date will be
extended for an additional twelve months, until September 9, 1998. The note
bears simple interest at a rate of 8.75% per year.
/s/ James H. Whitney
----------------------- Date: September 9, 1996
James H. Whitney
Witness: /s/ Fred W. Kolling III
------------------------
Fred W. Kolling III Date: September 9, 1996
Vice President and
Chief Financial Officer
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