<PAGE>
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- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K/A
(MARK ONE)
/ / ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
or
/X/ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-24234
------------------------
FOR THE FISCAL YEAR ENDED JUNE 30, 1999
FOILMARK, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 11-3101034
(State or other (IRS Employer
jurisdiction Identification No.)
of incorporation)
</TABLE>
5 MALCOLN HOYT DRIVE, NEWBURYPORT, MASSACHUSETTS 01950
(Address of principal executive offices)
(978) 462-7300
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK $.01 PAR VALUE
Title of Class
------------------------
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days. Yes /X/ No / /
/ / Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulations S-K is not contained herein, and will not be contained,
to the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
The aggregate market value of the outstanding voting stock held by
non-affiliates of the registrant as of September 15, 1999 was $18,817,589.
The number of shares outstanding of the registrant's common stock at
September 15, 1999--7,899,956
Exhibit Index Located on Page--19
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<PAGE>
The undersigned hereby amends the following exhibits of its annual report on
Form 10-K for the fiscal year ended June 30, 1999 as follows:
Exhibit 10.58, Lease dated April 23, 1999, and Exhibit 10.59, Third Extension
and Amendment to Lease dated April 30, 1999, are filed herewith.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(g) of the Securities
Exchange Act of 1934, the Registrant has duly caused this document to be signed
on its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C> <C>
FOILMARK, INC.
By: /s/ FRANK J. OLSEN, JR.
-----------------------------------------
Frank J. Olsen, Jr.
PRESIDENT
</TABLE>
Date: September 28, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ ROBERT J. SIMON
- ------------------------------ Chairman of the Board September 28, 1999
Robert J. Simon
/s/ FRANK J. OLSEN
- ------------------------------ President September 28, 1999
Frank J. Olsen Chief Executive Officer
/s/ PHILIP LEIBEL
- ------------------------------ Vice President--Finance September 28, 1999
Philip Leibel Chief Financial Officer
/s/ EDWARD SULLIVAN
- ------------------------------ Vice President--West Coast September 28, 1999
Edward Sullivan Operations & Director
/s/ MICHAEL J. BERTUCH
- ------------------------------ Director September 28, 1999
Michael J. Bertuch
/s/ MICHAEL FOSTER
- ------------------------------ Director September 28, 1999
Michael Foster
/s/ THOMAS SCHWARZ
- ------------------------------ Director September 28, 1999
Thomas Schwarz
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ JAMES ROONEY
- ------------------------------ Director September 28, 1999
James Rooney
/s/ MICHAEL MATHEWS
- ------------------------------ Director September 28, 1999
Michael Mathews
/s/ BRIAN KELLY
- ------------------------------ Director September 28, 1999
Brian Kelly
/s/ HARVEY S. SHARE
- ------------------------------ Director September 28, 1999
Harvey S. Share
</TABLE>
25
<PAGE>
EXHIBIT INDEX
The following is a list of exhibit files as part of this Annual Report on
Form 10-K. For exhibits incorporated by reference, the location of the exhibit
in the previous filing is indicated in parenthesis.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
2.1 Agreement and Plan of Merger dated November 17, 1998 is incorporated herein by reference to the
Company's Current Report on Form 8-K filed with the Commission on November 25, 1988.
3.1 Restated Certificate of Incorporation of the Company dated October 14, 1993 is incorporated herein by
reference to the Company's Registration Statement on Form S-1 filed with the Commission on October
25, 1993.
3.2 Restated Bylaws of the Company are incorporated herein by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 and filed with the Commission on March 27,
1998.
3.3 Specimen Stock Certificate of the Company is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on May 24, 1994.
3.4 Restated Certificate of Incorporation of the Company is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
3.5 Restated Bylaws of the Company dated May 5, 1995 are incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996 and filed with the
Commission.
3.6 Second Amended and Restated Certificate of Incorporation dated November 20, 1998 is incorporated
herein by reference to the registration statement on Form S-4 filed with the Commission on March
22, 1999.
3.7 Bylaws of Foilmark, Inc., amended as of April 23, 1999 are incorporated herein by reference to the
Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.1 Form of Employment Agreement of the Company is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.2 1993 Stock Option Plan is incorporated herein by reference to Amendment No. 2 to the Company's
Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.4 Technical Collaboration Agreement between the Company and Arrow Coated Products Ltd. dated December
18, 1992 is incorporated herein by reference to the Company's Registration Statement on Form S-1
filed with the Commission on October 25, 1993.
10.5 Agreement for the Purchase of Patents between the Company and Leonard Mintz and Franklin
Manufacturing Corporation dated March 12, 1992 is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.6 Waiver Agreement between the Company and Leonard Mintz is incorporated herein by reference to
Amendment No. 1 to the Company's Registration Statement on Form S-1 filed with the Commission on
December 3, 1993.
10.7 Form of Promissory Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.8 Form of Shareholder Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.9 China Sales and Distribution Agreement between the Company and X.D. Trading and Consulting Company
dated October 25, 1993 is incorporated herein by reference to the Amendment No. 3 to the Company's
Registration Statement on Form S-1 filed with the Commission on June 17, 1994.
10.10 Sales and Licensing Agreement between the Company and Embossing Technology Limited dated November 10,
1994 is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on November 30, 1994.
10.11 Industrial Revenue Bond Loan Agreement dated June 28, 1995 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
10.12 1995 Employee Stock Purchase Plan is incorporated herein by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.13 1995 Employee Stock Option Plan is incorporated herein by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.14 Asset Purchase Agreement between Imtran Industries, Inc. et al, and the Company dated August 3, 1995
is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on September 1, 1995.
10.15 Amended and Restated Employee Stock Purchase Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
10.16 Amended and Restated Employee Stock Option Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
10.17 Waiver and Amendment to Loan Agreement between the Company and Fleet Bank dated March 20, 1997 is
incorporated herein by reference to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 and filed with the Commission on April 14, 1997.
10.18 Consulting Agreement between the Company and Edward Sullivan dated January 1, 1999 is incorporated
herein by reference to the Company's Registration Statement on Form S-4 filed with the Commission
on March 22, 1999.
10.19 Lease Agreement between the Company and Edward G. Molin dated April 21, 1997 is incorporated herein
by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
filed with the Commission on August 12, 1997.
10.20 Lease Agreement between the Company and Parker Street Realty Trust dated July 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission August 12, 1997.
10.21 Lease Agreement between the Company and Faircourt Realty Co. dated April 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission on August 12, 1997.
10.22 1997 Non-Employee Director Stock Plan dated April 11, 1997 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and filed with the
Commission on August 12, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.23 Shareholder Agreement between the Company and certain shareholders of HoloPak Technologies, Inc.,
dated November 17, 1998 is incorporated herein by reference to the Company's Current Report on Form
8-K filed with the Commission on November 25, 1998.
10.24 Shareholder Agreement between certain substantial shareholders of the Company and HoloPak
Technologies, Inc., dated November 17, 1998 is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on November 25, 1998.
10.25 Non-Competition Agreement between the Company and Leonard Mintz dated December 23, 1998 is
incorporated herein by reference to the Company's Registration Statement on Form S-4 filed with the
Commission on March 22, 1999.
10.26 Waiver to Loan Agreement between the Company and Fleet Bank dated February 18, 1999 is incorporated
herein by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998 and filed with the Commission on March 29, 1999.
10.27 Employment Agreement dated March 26, 1998 between Douglas Parker and the Company is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 and filed with the Commission on May 14, 1999.
10.28 Lease Agreement between the Company and Anchor Associates dated May 14, 1998, commencing March 1,
1999 is incorporated herein by reference to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999 and filed with the Commission on May 14, 1999.
10.29 Voting Agreement between Foilmark and certain stockholders of Foilmark dated April 23, 1999 on Form
8-K filed with the Commission on May 5, 1999.
10.30 Indemnification Agreement between Foilmark and Thomas A. Schwarz dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.31 Indemnification Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is
incorporated herein by reference to the Company's current report on Form 8-K filed with the
Commission on May 5, 1999.
10.32 Indemnification Agreement between Foilmark and Philip Leibel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.33 Indemnification Agreement between Foilmark and Michael Foster dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.34 Indemnification Agreement between Foilmark and Michael Bertuch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.35 Indemnification Agreement between Foilmark and Edward Sullivan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.36 Indemnification Agreement between Foilmark and Glenn Regan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.37 Indemnification Agreement between Foilmark and Douglas Parker dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.38 Indemnification Agreement between Foilmark and Carol J. Robie dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.39 Indemnification Agreement between Foilmark and Wilhelm Kutsch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.40 Indemnification Agreement between Foilmark and Brian Kelly dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.41 Indemnification Agreement between Foilmark and Harvey Share dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.42 Indemnification Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.43 Indemnification Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.44 Indemnification Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.45 Indemnification Agreement between Foilmark and Robert Simon dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.46 Indemnification Agreement between Foilmark and Michael Mathews dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.47 Employment Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.48 Employment Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.49 Employment Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.50 Employment Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.51 Registration Rights Agreement among Foilmark, Bradford Venture Partners, Overseas Private Investor
Partners and certain other stockholders of Foilmark dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.52 Amended and Restated Credit Agreement dated August 6, 1999 between Fleet National Bank and the
Company, and exhibits thereto.
10.53 Employment Agreement dated July 1, 1999 between Carol J. Robie and the Company.
10.54 Employment Agreement dated July 1, 1999 between Wilhelm Kutsch and the Company.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.55 Employment Agreement dated July 1, 1999 between Philip Leibel and the Company.
10.56 First Amendment to the Foilmark, Inc. Amended and Restated 1995 Stock Incentive Compensation Plan
dated August 19, 1999.
10.57 First Amendment to the Foilmark, Inc. Non-Employee Directors' Stock Plan dated August 19, 1999.
*10.58 Lease dated April 23, 1999 between Owen Wagener & Co. and the Company.
*10.59 Third Extension and Amendment to Lease dated as of April 30, 1999 between Highview Properties-One,
LLC and Transfer Print Foils.
27 Financial Data Schedule
</TABLE>
* Filed herewith
<PAGE>
Exhibit 10.58
LEASE SUMMARY
THIS LEASE, made the 23rd day of April, 1999 between B & B Investment
Company, as Agent for Owner, Trust #94-2302-N having its principal place of
business at c/o Owen Wagener & Co., 955 N. Plum Grove, Suite C, Schaumburg,
Illinois 60173 ("the Lessor"), and Foilmark, Inc., a Delaware Corporation having
a place of business at 825 University Drive, Arlington Heights, Illinois 60004
("the Lessee").
Section 1.1 -- Building "Premises": 825 University Drive Approx. Sq.Ft. 12,000
Arlington Heights, IL
-- Lease "Term": Three (3) year(s) _____ Months(s)
-- Commencement Date: May 1, 1999
-- Expiration Date: April 30, 2002
Term Rent: One hundred thirty seven thousand seven hundred seventy two & 00/000
($137,772.00) Dollars
<TABLE>
<CAPTION>
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Monthly
Monthly Base Monthly Tax Operating Total Monthly
Term Rent Installment Expense Payment
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<S> <C> <C> <C> <C>
05/01/1999 - 04/30/2000 $ 3,630.00 + * 2,560.00 + * 310.00 = $ 6,500.00
- -------------------------------------------------------------------------------------------
05/03/2000 - 04/30/2001 $ 3,825.00 + * 2,560.00 + * 310.00 = $ 6,695.00
- -------------------------------------------------------------------------------------------
05/01/2001 - 04/30/2002 $ 4,026.00 + * 2,560.00 + * 310.00 = $ 6,896.00
- -------------------------------------------------------------------------------------------
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</TABLE>
*These figures are based on Lessor's current estimates and are subject to change
in accordance with Section 3.2.
Section 1.2. -- Premises Use: Warehouse and distribution of hot stamp foil
Section 3.1. -- Pro Rata Share of Expenses: 12.000/63,350 or 18.88
Section 4.1. -- Insurance: $2,000,000 Aggregate, 1,000,000 Each Occurrence,
$50,000 Fire Damage, $5,000 Medical Expense
Section 6.5 -- Parking Spaces: Ten (10)
Section 20.1 -- Property Manager Address: Owen Wagener & Co.
955 N. Plum Grove Road, Suite C
Schaumburg, IL 60173-4784
Section 25.1 -- Brokerage: Owen Wagener & Co.
Section 26.1 -- Security Deposit: $ 13,792.00
Exhibits "A" and Riders ________ attached hereto become part of this Lease,
consisting of 13 pages.
-1-
<PAGE>
Notice is hereby given that the submission of Lease is for the purpose of
negotiation and your review and does not constitute an offer, lease or agreement
to lease, or a reservation or option for the demised premises.
This Lease shall become effective and binding as a Lease only upon the execution
and delivery, each to the other by both Lessee and Lessor.
The signor's below are officers, duly executed and authorized by the
Corporation's Board of Directors to execute this lease extension.
B & B Investment Company, as Agent for
Owner, Trust #94-2302-N (Lessor)
By: /s/ C. Jay Buikema
-----------------------------------
C. Jay Buikema
Foilmark, Inc. A Delaware Corporation
(Lessee)
By: /s/ Frank J. Olsen, Jr.
-----------------------------------
(Corporate Seal) Print: Frank J. Olsen, Jr. President
Attest: --------------------------------
Name
Signature By: /s/ Philip Leibel
------------------ By: /s/ Philip Leibel
-----------------------------------
Philip Leibel
------------------ Print: Philip Leibel Vice President-Finance
Print Name --------------------------------
Assistant Secretary Name Title
<PAGE>
WITNESSETH:
SECTION I (Description-Term-Rent-Use)
Section 1.1. The Lessor in consideration of Lessee's agreements and
payment of rent and other costs, leases to the Lessee, and Lessee hereby leases
the Premises for a Term as described on Page One with the use of (subject to
such rules and regulations as the Lessor may prescribe) necessary entrances and
appurtenances.
SUBJECT, to all encumbrances, conditions, covenants, easements,
restrictions and rights-of-way, whether or not of record, and other matters of
record, if any, and to such matters as may be disclosed by inspection or survey.
Lessee shall pay to Lessor as specified on Page One, in lawful money
of the United States, at the office of Lessor, or at such other place as Lessor
may designate, the Base Rent, Additional Rent, Tax and Expense Estimate (as
hereinafter defined), and all other amounts becoming due to Lessor from Lessee
hereunder, which are herein collectively referred to as the "Rent." Except as
otherwise specifically provided, all Rent shall be paid without notice or demand
and without abatement, deduction, counterclaim or setoff.
The Rent shall be paid in equal monthly installments in advance on the
first day of each month during the Term of this lease, except that the first
month's rent shall be due and payable when this lease is executed. If the Term
does not commence on the first day of a month, the monthly installment of Rent
payable for the period from the commencement of the Term of this lease to the
last day of the month in which such commencement occurs shall be prorated and
paid on the date of such commencement. Lessee specifically agrees that for such
installment for rent and payment of other charges which shall not be paid by the
due date, then, in addition Lessee shall pay Lessor an amount equal to five (5%)
of rental, which is then due, per month until paid. Such additional late charge
shall be deemed an additional rental.
Section 1.2. Lessee agrees that it will use and occupy the Premises for
the purposes set forth on Page One.
If the Lessor is unable to tender possession of the Premises on the date
of the commencement of the term, the Lessor shall not be liable for any damage
caused thereby, nor shall this lease be void or voidable by Lessee, but in such
event unless the delay results from failure of Lessee to provide plans or
otherwise perform in accordance with the requirements of the lease, no rental
shall be payable by Lessee prior to actual tender to Lessee of possession of the
Premises. In any event, late delivery of the Premises will not extend the Term
of this lease. Lessee will not allow said Premises to remain vacant or
unoccupied for ten (10) consecutive days. Lessee is solely responsible for
obtaining and complying with any permits or license for occupancy or otherwise
which are required by any public law, ordinance or governmental regulation. The
Lessee will not make or permit to be made any use of the Premises which would
violate any of the covenants, agreements, terms, provisions and conditions of
this lease or which directly or indirectly is forbidden by public law, ordinance
or governmental regulation; or generate, discharge, treat, store or dispose of
hazardous waste or petroleum as defined in the Resource Conservation and
Recovery Act and Comprehensive Environmental Response Cooperation and Liability
Act; or cause or contribute to any Environmental Condition as defined in Section
27.1 of this lease; or make or permit any use of the Premises which may be
dangerous, noxious or offensive or create or maintain any nuisance in, at or on
the Premises; or make or permit any use of the Premises which may invalidate, or
increase the premium cost of any policy of insurance carried on the Building and
environs and their operation, or any use which, in Lessor's sole judgment, shall
impair the character, reputation or appearance of the Building and environs.
This lease shall be construed and enforced in accordance with the laws of the
state in which Building is situated. The parties hereto agree that the covenants
and agreements herein contained shall bind and inure to the benefit of the
Lessor, its successors and assigns, and the Lessee, its successors and assigns.
SECTION II (Covenant to Pay Rent & Utilities)
Section 2.1. The Lessee covenants to pay, without notice or demand and
without deduction or set-off for any reason whatsoever, the Base Rent and all
other sums to be paid by Lessee as additional rent, as herein provided (all of
which are hereinafter collectively referred to as the "rent").
Section 2.2. Lessee shall be solely responsible for and promptly pay all
charges for heat, water, gas, electricity and other utilities used on the
Premises. Lessor shall not be liable to Lessee for interruption of any utility
service nor shall any interruption constitute a constructive eviction or grounds
for rental abatement in whole or part. In the event utilities are not separately
metered to Lessee, then Lessee will reimburse Lessor, upon demand, for the cost
to Lessor of utilities used on the Premises.
SECTION III (Additional Rent)
Section 3.1. In addition to paying the Rent specified in Section 1 as set
forth on Page One, Lessee shall pay to Lessor as additional rent, the amounts
(herein collectively called "Additional Rent") determined to be Tax Expense
Adjustment and Operating Expense Adjustment (all as hereinafter defined) in
accordance with this Section 3.
Section 3.2. The term "Taxes" shall mean real estate taxes and
assessments, including taxes based upon the receipt of rent, which may now or
hereafter be levied or assessed against the Building, the land upon which the
Building stands (the "Land"), herein collectively known as "Real Property."
Taxes shall include expenses, including attorneys' fees, relating to seeking or
obtaining reduction in and refunds of real estate taxes ("Tax Reduction Costs
and Fees"), and shall also include special assessment installments payable
during any Adjustment Year.
-3-
<PAGE>
If at any time the method of taxation then prevailing shall be altered so
that any new or additional tax, measurement, levy, imposition or charge or any
part thereof shall be imposed upon Lessor in place or partly in place of any
Taxes or contemplated increase therein, or in addition to Taxes, and shall be
measured by or be based in whole or in part upon the Real Property, the rents or
other income therefrom or any Leases of any part thereof, then all such new
taxes, measurements, levies, impositions or charges or part thereof, to the
extent that they are so measured or based, shall be included in Taxes levied,
assessment or imposed against the Real Property to the extent that such items
would be payable if the Real Property were the only property of Lessor subject
thereto and the income received by Lessor from the Real Property were the only
income of Lessor.
Section 3.3 "Lessor Expenses" shall mean those costs and expenses paid or
incurred by or on behalf of Lessor for managing, operating, maintaining and
repairing the Buildings, and common elements, the Land and the personal property
used in conjunction therewith (said buildings, Land and personally herein
collectively called the "Project"); including, without limitation, the cost of
security and security devices and systems, if any, snow and ice and trash
removal, cleaning and sweeping, planting and replacing decorations, flowers and
landscaping, maintenance and repair and replacement of utility systems,
electricity, water, sewers, fuel, lighting, window cleaning, insurance
(including but not limited to, fire, extended coverage, all risk, liability,
workman's compensation, or any other insurance carried by the Lessor and
applicable to the Premises and not carried by Lessee under any provision of
Leases) tuckpointing, management fees, supplies, as well as the cost of wages
and salaries and benefits of all persons engaged in the operation, management,
maintenance and repair of the Property, legal and accounting expenses or any
other expense or charge, whether or not herein before mentioned, which, in
accordance with generally accepted accounting and management principles, would
be considered as an expense of managing, operating, maintaining or repairing the
Property, except as hereinafter provided. Expenses shall not include costs or
other items included within the meaning of the term "Taxes," costs of
alternations of the premises of tenants, costs of capital improvements to the
Property, depreciation charges, interest and principal payments on mortgages,
real estate brokerage and leasing commissions, and any expenditures for which
Lessor has been reimbursed (other than pursuant to rent escalation or tax and
operating expense reimbursement provisions in Leases), except as hereinafter
provided.
Section 3.4. The cost of any capital improvements to the Premises made
after the date of this Lease which are intended to reduce Lessor's Expenses or
which are required under any governmental laws, regulations or ordinances which
were not applicable to the Premises at the time it was constructed, amortized
over such reasonable periods as Lessor shall determine, together with interest
on the unamortized cost of any such determine, together with interest on the
unamortized cost of any such improvements (at the prevailing construction loan
rate available to Lessor on the date the cost of such improvements was incurred)
shall be included in Lessor's Expenses.
Section 3.5. "Adjustment Year" shall mean each calendar year during the
Term of this Lease and "Adjustment Date" shall mean the first day of the Term
and each January 1 thereafter falling within the Term.
Section 3.6. "Lessee's Proportionate Share" shall mean the Premises'
proportionate share of all rentable premises in the Buildings as outlined on the
Front Page Section 3.6.
Section 3.7. Lessee shall pay as Additional Rent Lessee's Proportionate
Share of Taxes (such Proportionate Share shall herein be called the "Tax Expense
Adjustment") and Lessor's Operating Expenses (such Proportionate Share shall
herein be called the "Operating Expense Adjustment").
Section 3.8. The aggregate of payments required to be made by Lessee on
account of Tax Expense Adjustment and Operating Expense Adjustment for any
Adjustment Year until the actual Tax Expense Adjustment and Operating Expense
Adjustment for such Adjustment Year are determined is called "Tax and Expense
Estimate." Lessor may, at any time and from time to time (including after the
Term) deliver to Lessee a written notice or notices ("Projection Notice")
setting forth (1) Lessor's reasonable estimates, forecasts or projections
(collectively, the "Projections") of Taxes or Lessor's Expenses for the
Adjustment Year and (2) Lessee's Tax and Expense Estimate (setting forth the
Lessor Expense component and the Tax component separately), being Lessee's
Proportionate Share of the Projections.
Section 3.9. On or before the first day of the next calendar month
following Lessor's service of a Projection Notice, and or before the first day
of each month thereafter, Lessee shall pay to Lessor at the time and in the same
manner as payment of Rent one twelfth (1/12) of the Tax and Expense Estimate
shown in the Projection Notice. Within fifteen (15) days following Lessor's
service of a Projection Notice, to bring Lessee's payments of Tax and Expense
Estimate current Lessee shall also pay Lessor a lump sum equal to the Tax and
Expense Estimate shown in the Projection Notice less any previous payments on
account of Tax and Expense Estimate made during such Adjustment Year.
Section 3.10. Following the end of such Adjustment Year and after Lessor
shall have determined the amount of Lessors Taxes or Expenses to be used in
calculating the Tax or Expense Adjustment for such Adjustment Year, Lessor shall
notify Lessee in writing (any such notice herein called "Lessor's Statement") of
such Lessor Taxes or Expenses and Lessee's Tax or Expense Adjustment for such
Adjustment Year. If the Tax or Expense Adjustment owed for such Adjustment Year
exceeds, respectively, the Tax or Expense Estimate paid by Lessee during such
Adjustment Year, then Lessee shall, within thirty (30) days after the date of
Lessor's Statement, pay to Lessor an amount equal to the extent of the Tax or
Expense Adjustment over the Tax or Expense Estimate paid by Lessee during such
Adjustment Year. If the Tax or Expense Estimate paid by Lessee during such
Adjustment Year exceeds, respectively, the Tax or Expense Adjustment owed for
such Adjustment Year, then Lessor shall credit such excess to Rent payable after
the date of Lessor's Statement,
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or may, at its option, credit such excess to any Rent theretofore due and owing,
until such excess has been exhausted. The Tax Adjustment and Expense Adjustments
may occur at different times as the Lessor Taxes and Expenses become known.
Section 3.11. Lessee shall have the right to examine Lessor's books and
records showing Taxes and Lessor Expenses upon reasonable prior notice. Unless
Lessee shall take written exception to any item of Taxes or Lessor Expenses
within thirty (30) days after service of Lessor's Statement, Lessor's Statement
shall be considered as final and accepted by Lessee. Notwithstanding any
exception made by Lessee, Lessee shall pay Lessor the full amount of its Rent,
subject to readjustment at such time as any such exception may be resolved.
Section 3.12. With respect to any Adjustment Year which does not fall
entirely within the Term, Lessee shall be obligated to pay as Additional Rent
for such Adjustment Year only a prorata share of Additional Rent as hereinabove
determined, equal to said Additional Rent multiplied by a fraction the numerator
of which is the number of days of the Term falling within the Adjustment Year,
and whose denominator is 365. Following expiration or termination of this Lease,
Lessee shall pay any Additional Rent (including any Tax and Expense Estimate due
on account of a revised Projection Notice) due to the Lessor within fifteen (15)
days after the date of Lessor's Statement sent to Lessee. Without limitation of
other obligations of Lessee which shall survive the expiration of the Term, the
obligations of Lessee to pay Additional Rent provided for in this Section 3
shall survive the expiration or termination of this Lease. Additional Rent shall
be charged from the Commencement Date of this Lease, even though if no Base Rent
is due.
Section 3.13. In no event shall any Additional Rent result in a decrease
of the Total Monthly Payment payable hereunder as outlined in Section 1.1 on
Page One. No interest or penalties shall accrue on any amounts which Lessor is
obligated to credit or pay to Lessee by reason of this Section 3.
Section 3.14. All amounts payable by Lessee as or on account of Additional
Rent or Tax or Operating Expense Estimate shall be deemed to be Rent due under
this Lease, and any provisions concerning default in payment of Rent and/or
interest thereon after the due date thereof, shall be applicable thereto.
Section 3.15. Lessee agrees to pay, in the same manner as set forth in
Section 3.2, an additional rent, an amount equal to any additional tax levied
with respect to improvements made to Premises by Lessee, as the value of such
improvements is shown on the assessment records.
Section 3.16. If Lessee requests copies of actual vendor bills that
substantiate calendar year building operating expenses, which is above the
Lessor's standard invoicing, Lessee shall pay a fee for such copies.
Section 3.17. Lessee shall provide Lessor with financial statements; i.e.,
income statement and balance sheet within thirty (30) days of notice from
Lessor.
SECTION IV (Insurance)
Section 4.1. The Lessee, at it's sole cost and expense, shall maintain (a)
general public liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the Premises, adjoining streets and
passageways, such insurance to afford protection of not less than the amounts as
specified on Page One of this lease.
Section 4.2. Lessor agrees to keep in force and effect insurance on
Building against fire and such other risks as may be included in extended
coverage insurance in an amount not less than the greater of 80% of the full
insurable replacement value of the Building or the amount sufficient to prevent
Lessor from becoming a co-insurer under the terms of the applicable policies.
Such policies may be in blanket form and cover other properties owned by Lessor.
Section 4.3. All policies of insurance shall be in form and substance
satisfactory to the Lessor, shall be written with companies satisfactory to the
Lessor, and shall not be cancelable on less than thirty (30) days' notice to the
Lessor or the holder of any mortgage. Lessee shall provide current Certificates
of insurance to the Lessor. Lessee's policies shall name Lessor, its agents,
servants and employees, as additional insureds.
Section 4.4. Lessor and Lessee intend that the risk of loss or damage to
the Premises or any improvements therein be borne by responsible insurance
carriers, and Lessor and Lessee hereby release each other and agree to look
solely to, and seek recovery only from, such insurance carriers in the event of
such a loss, to the extent that such coverage is agreed to be provided. All
insurance policies to be maintained by either Lessor or Lessee shall contain a
clause whereby the insurance carrier waives all rights of subrogation against
the other party with respect to losses payable under such policies; and any
applicable deductible amount shall be treated as though it were recoverable
under such policies.
SECTION V (Lessor's Right to Perform Lessee's Covenants)
Section 5.1. If the Lessee shall at any time fail to make any payment or
perform any other act on its part to be made or performed under this lease, the
Lessor may, but shall not be obligated to, and without notice or demand and
without waiving or releasing the Lessee from any obligation of the Lessee under
this lease, make such payment or perform such other act to the extent the Lessor
may deem desirable, and in connection therewith to pay expenses and to employ
counsel. All sums so paid by the Lessor (including reasonable attorneys' fees)
in connection therewith, together with interest thereon at the rate of five
percent (5%) per month until all monies are paid, shall be deemed additional
rent hereunder and be payable to the Lessor on demand.
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SECTION VI (Premise Condition, Repairs, Maintenance & Waste)
Section 6.1. Lessor shall videotape the leased premises for the purpose of
establishing the condition of the premises prior to possession by Lessee. Said
videotape shall be kept on file for comparison with a similar videotaping which
will be done at the end of the lease term. A copy of said videotape may be
purchased by Lessee for a fee. The Lessee covenants at the Lessee's sole
expenses to take good care of the Premises and any Building equipment located
therein, including but not limited to ceilings, floors, walls, woodwork, paint,
doors, glass, plumbing, plumbing fixtures, heating/air conditioning, hot water
systems, electrical fixtures, equipment and systems, mechanical systems and
equipment, and agrees to keep the same in good order and condition and to make
all repairs, replacements or renewals. The plumbing facilities shall not be used
for any other purpose than for which they are constructed, and no foreign
substance of any kind shall be thrown therein, and the expense of any breakage,
stoppage, or damage resulting from a violation of this provision shall be borne
by Lessee. The Lessee covenants to keep the Premises in a clean and orderly
condition and free of debris, materials and rubbish.
Section 6.2. All repairs, improvements, changes or alterations, made by
the Lessee or Lessor shall immediately upon completion or installation thereof
become the property of the Lessor without payment by the Lessor. The Lessee
covenants that upon termination of this lease for any reason whatsoever the
Lessee will surrender to the Lessor the Premises, together with all
improvements, alterations, replacements thereto, and the Building equipment in
good order, condition and repair, reasonable wear & tear excepted provided,
however, that if Lessor requests Lessee to remove any such improvements,
alterations or replacements, the Lessee shall remove the same and restore the
Premises to their condition prior to the installation thereof. Upon such
termination, Lessee shall remove, to Lessor's satisfaction, all petroleum,
hazardous wastes and hazardous substances from the Premises (including soil and
groundwater) and from any adjacent property upon which any such petroleum,
hazardous wastes and hazardous substances generated or disposed of by the Lessee
may be located. "Reasonable wear and tear" is hereby defined as that degree of
wear and tear which would normally occur in the general image of a demised
Premises but shall not include any neglect, abuse or physical damages to the
floors, walls and ceiling of the demised Premises, nor any damage caused through
operation of machinery, office equipment or other equipment. If discharges or
liquids used by Lessee, should cause damage to the Leased Premises or other
nearby premises, both interior or exterior, said damages shall not be deemed as
"reasonable wear and tear", and Lessee shall be liable for the complete
restoration of Premises. Said damages shall include, but not be limited to,
damaged, rusting or corroded walls, floors, ceilings, doors, windows, plumbing,
heating and air conditioning units, metal bar joints, steel desks, or roof vents
or stacks.
Section 6.3. The Lessee covenants not to do or suffer any waste or damage,
disfigurement or injury to the Premises (including, without limitation, the
walls and ceilings located therein) or permit or suffer any overloading of the
floors, walls or roof structure of the Premises.
Section 6.4. Lessee shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems and
equipment within the Premises. The maintenance contractor and the contract must
be approved by the Lessor. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and must become effective (and a copy thereof delivered to Lessor) within thirty
(30) days of the date Lessee takes possession of the Premises.
Section 6.5. Lessor agrees to provide, for the use of Lessee the number of
parking spaces for passenger automobiles as specified on Page One. Lessee shall
have no interest in any parking area, but shall have only a license to use the
same during the term of this lease, in common with others entitled to the use
thereof. All rights with respect to parking and driveway areas shall be subject
to regulation by Lessor, but Lessor shall have no liability to any person for
any interference with any such rights. Lessee shall not allow any outside
storage of debris, merchandise, waste, garbage containers, material, equipment,
trailers or vehicles, or in any other way detract from the appearance of the
premises, nor shall Lessee park motor vehicles overnight or over the weekends in
the parking lot(s) of the Premises.
Lessee agrees to store waste, scrap, garbage, etc., in enclosed metal
containers with lids, and agrees not permit any motor vehicle to be stored on or
about the premises. Waste containers are to be stored within the leased portion
of the building.
Section 6.6. Lessee acknowledges that it will be doing business with
various business entities which may deliver, or cause to be delivered, various
materials, to Lessee. Accordingly, Lessee covenants and agrees that it will make
all necessary repairs of damages to any part of the Building within which the
Demised Premises is located, which damages were caused by the act, omission or
negligence of Lessee, Lessee's agents, employees, customers, invitees and
suppliers, their agents employees or delivery services, during delivery or any
other pursuance of Lessee's business of any nature whatsoever, within thirty
(30) days of the occurrence of such damages.
Section 6.7. Lessee shall be responsible for the removal of any stain or
deposits or grease, oil, tar, paint, or any other material or storage vessel
which may be used in the course of business or stored by Lessee during Lessee's
occupancy, and restoration thereof to any part of the Premises, parking lot or
other outside agrees to the condition it was in upon Lessee's initial occupancy
of the premises.
SECTION VII (Compliance with Law and Insurance Requirements)
Section 7.1. The Lessee covenants, at the Lessee's sole expense, to
comply with all the recommendations of any insurer, foreseen or unforeseen,
ordinary as well as extraordinary, which may be applicable to the Premises or
the sidewalks, curbs, parking lot(s) or drive-way(s), if any, adjoining the
Premises, by reason of the Lessee's use. In the event Lessee does not comply
with the recommendations of any insurer, Lessee shall be liable for the payment
of any increase on the amount of any insurance premium raised
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by such non-compliance. If any permitted use hereunder becomes uninsurable,
Lessee shall cause such use to become insurable at Lessee's expense, or Lessor
may cancel and terminate this lease upon written notice.
SECTION VIII (Alterations and Signs by Lessee)
Section 8.1. The Lessee shall not make any changes or alterations,
structural or otherwise, to the Premises without the Lessor's prior written
consent.
Section 8.2. Lessee shall not (i) make any changes to the exterior of the
Premises, (ii) install any exterior lights, decorations, painting, or signs, or
advertising media of any type which can be viewed from the exterior of the
Premises, without Lessor's prior written consent, which consent shall not be
unreasonably withheld, and upon termination of the lease lessee shall restore
the surfaces to which such lights, decorations, painting, signs or advertising
media attached so that there is no evidence of attachment.
All signs, decorations, advertising media, and window treatment or
security installations visible from outside the Premises shall conform to the
criteria established by Lessor and any applicable governmental regulations or
requirements. Lessee shall pay for and comply with Lessor's uniform signage
requirements.
SECTION IX (Damage or Destruction)
Section 9.1. The Lessee covenants and agrees that in case of damage to or
destruction of the Premises by fire or other casualty, the Lessee will promptly
give written notice to Lessor, and the Lessor, will repair, and rebuild the same
as nearly as possible to the condition the Premises were in prior to such damage
or destruction, except that Lessor shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Premises by Lessee, or rebuild
any damage caused by the intentional and willful act of Lessee.
Section 9.2. Rent shall abate proportionately on such part of the Premises
as may have been rendered untenantable (so long as such untenantability was not
caused by the intentional and willful act of Lessee) until such time as such
part shall be fit for occupancy, and after which time the full amount of rent
reserved in this lease shall be payable as hereinbefore set forth. The Lessee
hereby waives the provisions of any law now or hereafter in effect which would
relieve the Lessee from any obligation to pay rent or additional rent under this
lease, except to the extent provided by this Section.
Section 9.3. Anything in Section 9.1 to the contrary notwithstanding, if
the Premises or Building shall be substantially damaged or destroyed by fire or
otherwise, as determined by Lessor, the Lessor shall have the option of
terminating this lease as of the date of such damage or destruction by written
notice to Lessee given within thirty (30) days after such damage or destruction,
in which event Lessor shall make a proportionate refund to Lessee of such rent
as may have been paid in advance.
SECTION X (Condemnation)
Section 10.1. If the whole or any part of the Premises shall be taken
under the power of eminent domain, or shall be sold by the Lessor under threat
of condemnation proceedings, then this lease shall terminate as to the part so
taken or sold on the day when Lessee is required to yield possession thereof,
and the Lessor shall make such repairs and alterations as may be necessary in
order to restore the part not taken or sold to useful condition and the rental
hereinbefore specified shall be reduced proportionately as to the portion of the
Premises so taken or sold. If the amount of the Premises so taken or sold is
such as to impair substantially the usefulness of the Premises for the purposes
for which the same are hereby leased, then Lessee shall have the option to
terminate this lease as of the date when Lessee is required to yield possession.
In all events, all compensation awarded or paid for any such taking or sale of
the fee and the leasehold, shall belong to the Lessor. Lessor shall notify
Lessee of receipt of notice of condemnation.
Section 10.2. Anything in this Section X to the contrary notwithstanding,
if a portion of the Premises shall be taken in any proceeding the Lessor shall
have the option of terminating this lease as of the date of vesting of title in
the proceeding by written notice to Lessee and without limiting Lessee's right
to recover damages in said proceedings, (provided that Lessor's damages are not
reduced or diminished by said award to Lessee) given within thirty (30) days
after such vesting of title, in which event Lessor shall make a proportionate
refund to Lessee of such rent as may have been paid in advance.
SECTION XI (Conditions of Work for Repairs/Alterations)
Section 11.1. All work required by Sections 6.1 and 7.1, or as permitted
by Section 8.1, shall be done subject to the conditions which the Lessor may
impose and shall be done in a good and workmanlike manner.
SECTION XII (Mechanics' Liens)
Section 12.1. The Lessee shall not permit any mechanics' or other liens to
be filed against the Building or Premises or any underlying or adjacent property
nor against the Lessee's leasehold interest in the Premises by reason of work,
labor, services or materials supplied or claimed to have been supplied to the
Lessee or anyone holding the Premises or any part thereof through or under the
Lessee. The Lessor shall have the right at all reasonable times to post and keep
posted on the Premises any notices which the Lessor may deem to be necessary or
advisable for the protection of the Lessor and the Building or any part thereof
from mechanics' liens. If any such mechanics' lien shall at any time be filed
against the Premises, the Lessee shall cause the same to be discharged of
record, or post a cash bond with Lessor for double the amount of the alleged
lien, to be secured in lieu thereof, within twenty (20) days after the date of
filing. If the Lessee shall fail to discharge such mechanics' lien within such
period, then, the Lessor may, but shall not be obligated to, procure
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its discharge by paying the amount claimed to be due, or by deposit in court, or
by bonding, and in any such event the Lessor shall be entitled, if the Lessor so
elects, to compel the prosecution of an action for the foreclosure of such
mechanics' lien by the lienor and to pay the amount of the judgment, if any, in
favor of the lienor with interest, costs and allowances. Any amount paid by the
Lessor for any of the aforesaid purposes, and all reasonable attorney fees and
other expenses of the Lessor, with interest at the rate of five percent (5%) per
month until all monies are paid, shall be deemed additional rent hereunder and
be payable by the Lessee to the Lessor on demand.
SECTION XIII (Lessor's Right to Enter Premises)
Section 13.1. The Lessee agrees to permit the Lessor and any authorized
representatives of the Lessor, with or without prior notice to Lessee, to enter
the Premises at all times during usual business hours or at any other time in
case of emergency, to inspect the same and if the Lessor shall desire, but
without implying any obligation on the Lessor, to make any repairs deemed
necessary or desirable by the Lessor and to perform any work in the Premises
deemed necessary by the Lessor to comply with any laws, ordinances, orders,
regulations or requirements of any governmental authority or the recommendations
of any insurer. During the progress of any such work, the Lessor may keep and
store upon the Premises all necessary materials, tools and equipment. The Lessor
shall not in any event be liable for inconvenience, annoyance, disturbance, loss
of business or other damage to the Lessee.
Section 13.2. The Lessee agrees to permit the Lessor and any authorized
representatives of the Lessor to enter the Premises at all times during usual
business hours to exhibit the same for the purpose of sale, mortgage or lease.
The Lessor may display on the Premises, its usual "For Sale" or "For Lease"
signs.
SECTION XIV (Assignment & Subletting)
Section 14.1. In the event Lessee desires to sublease all or a portion of
the Leased Premises, Lessee shall give Owen Wagener & Co. an exclusive agency
agreement for a six (6) month period to secure such sub-tenant.
Section 14.2. The Lessee shall not, without the Lessor's prior written
consent, which consent shall not be unreasonably withheld, (a) assign, convey,
mortgage, pledge, encumber or otherwise transfer (whether voluntarily or
otherwise) this lease or any interest under it; (b) allow any transfer thereof
or any lien upon the Lessee's interest by operation of law; (c) sublet the
Premises or any part thereof, or (d) permit the use or occupancy of the Premises
or any part thereof by any one of other than the Lessee.
Section 14.3. Lessee agrees to pay Lessor, on demand, reasonable fees, not
to exceed $500.00, (including attorneys' fees) incurred by Lessor in connection
with any request by Lessee for Lessor to consent to any assignment or subletting
by Lessee.
Section 14.4. If this lease be assigned or if the Premises or any part
thereof be sublet or occupied by anybody other than Lessee, Lessor may, after
default by Lessee, collect rent from assignee, subtenant or occupant, and apply
the net amount collected to the Rent reserved, but no such assignment,
subletting, occupancy or collection shall be a waiver of any of Lessee's
covenants contained in this lease or the acceptance of the assignee, subtenant
or occupant as Lessee, or a release of Lessee from performance by Lessee of
covenants on the part of Lessee herein contained.
Section 14.5. In the event Lessee desires to sublet all or part of the
Premises, Lessee shall notify the Lessor in writing (hereinafter referred to as
"Sublet Notice") of the terms of the proposed subletting and shall give the
Lessor the option to sublet from Lessee such space (hereinafter referred to as
"Sublet Space") at the same Basic Rent and additional rent as Lessee is required
to pay Lessor under this lease for the same space or, at Lessor's option, to
terminate the lease with respect to the Sublet Space.
If the Sublet Space does not constitute the entire Premises and Lessor
exercises its option to terminate this lease with respect to the Sublet Space,
then as to that portion of the Premises which is not part of the Sublet Space,
this lease shall remain in full force and effect except that the Rent shall be
reduced by a fraction, the numerator of which shall be the rentable square feet
of the Sublet Space and the denominator of which shall be the rentable square
feet of the Premises. The option to sublet, or to terminate this lease, shall be
exercisable by Lessor in writing within a period of thirty (30) days after
receipt of the Sublet Notice.
Section 14.6. In the event Lessor exercises its option to sublease the
Sublet Space, the term of the subletting from the Lessee to the Lessor for
the Sublet Space shall be the term set forth in the Sublet Notice and shall
be on such other terms and conditions as are contained in this lease to the
extent applicable.
Section 14.7. In the event Lessor does not exercise either of its options
specified above and Lessee with Lessor's prior written consent completes a
sublease with a third party, the subtenant shall be subject to and comply with
requirements of this section and this Lease to the extent applicable thereto.
SECTION XV (Rights of Mortgagee)
Section 15.1. The rights of the Lessee under this Lease are subordinate at
all times to the lien of any mortgages or deeds of trust now or hereafter in
force against the Property of the Building. Any mortgagee or beneficiary under a
deed of trust may, however, elect to have this Lease be superior to its mortgage
or deed of trust. At Lessor's request, Lessee shall execute a document in
recordable form confirming that this Lease is subordinate (or at the mortgagee's
or beneficiary's election, superior) to any mortgage or deed of trust. Lessee,
at the option of any mortgagee or beneficiary under a deed of trust ("Lessor's
Mortgage"), agrees (a) to attorn to such mortgagee
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or beneficiary in the event of a foreclosure sale or deed in lieu thereof, and
(b) to execute such attornment, security, assignment or related agreements as
Landlord's Mortgagee may reasonably require. In the event of any act or omission
by the Lessor which would give the Lessee the right to terminate this lease or
to claim a partial or total eviction from the Premises, the Lessee shall not
exercise any such right (a) until it has notified in writing the Lessor's
Mortgagee of such act or omission, and (b) until a reasonable period for
remedying such act or omission shall have elapsed following the giving of such
notice, and Lessor's Mortgagee shall not with reasonable diligence have
commenced and continued to remedy such act or omission or to cause the same to
be remedied. If requested by Lessee, Lessor will notify Lessee in writing of the
name and address of each Lessor's Mortgagee. No Lessor's Mortgagee shall be
bound by any cancellation, amendment or modification of this Lease, or waiver of
any provision of this Lease, which has not been consented to in writing by that
Lessor's Mortgagee.
Section 15.2. In the event any proceedings are brought for the foreclosure
of, or in the event of exercise of the power of sale under, any mortgage or deed
of trust now or hereafter encumbering the Premises, or any part thereof, Lessee
shall agree to and shall attorn to the purchaser upon such foreclosure or sale
or upon any grant of a deed in lieu of foreclosure, and recognize such purchaser
as the Lessor under this lease if so requested by such purchaser.
SECTION XVI (Indemnification of Lessor - No Representations by Lessor)
Section 16.1. The Lessee and Lessor agrees to indemnify and hold
harmless the other against and from any and all claims by or on behalf of any
persons, firms, corporations, or Governmental Entities arising from the
conduct or management of, or from any work or thing whatsoever done in or
about, the Premises during the Term of this lease, and will further indemnify
and hold the other harmless against and from any and all claims arising
during the Term of this lease from any condition of the Premises, or any
street, curb, sidewalk or parking lot area, if any, adjoining the Premises,
or of the passageways or spaces therein or appurtenant thereto, or arising
from any breach or default on the part of the Lessee in the performance of
any covenant or agreement on the part of the Lessee or Lessor to be performed
pursuant to the terms of this Lease, or arising from any act or negligence of
the Lessee or Lessor, or any of its agents, contractors, servants, employees
or licensees, or arising from any accident, injury or damage whatsoever
caused to any person, firm or corporation occurring during the Term of this
lease, in or about the Premises, or upon or under the sidewalks and the land
adjacent thereto, if any, and from and against all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or action
or proceeding brought thereon; and in case any action or proceeding be
brought against the other by reason of any such claim, the Lessee, at its
sole cost and expense, upon notice from the Lessor covenants to resist or
defend such action or proceeding by counsel satisfactory to the Lessor.
Section 16.2. The Lessee covenants and agrees to pay, and to indemnify the
Lessor against, all legal costs and expenses, including counsel fees, lawfully
and reasonably incurred in obtaining possession of the Premises after default by
the Lessee or upon expiration or earlier termination of the Term of this Lease
or Lease's right to possession thereunder or in enforcing any covenant or
agreement of the Lessee herein contained, or in the defense of any suit arising
out of the occupancy or operation of the Premises by the Lessee.
Section 16.3. The Lessee is fully familiar with the condition of the
Premises, and accepts them in satisfactory condition and in good repair as of
the date of execution of this Lease. The Lessor has made no representations of
whatever nature in connection with the condition of the Premises, and the Lessor
shall not be liable for any intent or patent defects therein.
SECTION XVII (Default Provisions - Remedies of Lessor)
Section 17.1. The following events shall be deemed to be event of default
by Lessee under this lease:
(a) Lessee shall fail to pay any installments of Basic Rent or
additional rent when due, or any other payment or reimbursement to Lessor
required herein when due, and such failure shall continue for a period of five
(5) days from the date of notice from Lessor that such payment was due and
outstanding.
(b) Lessee shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of the Lessee or of all or a substantial part of
its assets, (ii) become insolvent or admit in writing its inability to pay its
debt as they come due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law, other
than the Federal Bankruptcy Code, (v) file an answer admitting the material
allegations of a petition filed against the Lessee in any reorganization or
insolvency proceedings, other than a proceeding commenced pursuant to the
Federal Bankruptcy Code, or if any order, judgment or decree shall be entered by
any court of competent jurisdiction, except for bankruptcy court or a federal
court sitting as a bankruptcy court, adjudicating the Lessee insolvent or
approving a petition seeking reorganization of the Lessee or appointing a
receiver, trustee or liquidator of the Lessee or of all or a substantial part of
its assets, or (vi) make a transfer in fraud of creditors.
(c) Lessee shall fail to comply with any term, provision or covenant
of this lease (other than the foregoing Section 17.1) and shall not cure such
failure within twenty (20) days after written notice thereof to Lessee.
(d) Lessee shall fail to comply with Section 12.1 hereof.
Section 17.2. Upon the occurrence of any of such events of default
described in Section 17.1 hereof, Lessor shall have the option to pursue either
or both of the following remedies:
(a) Terminate this lease by giving to the Lessee a notice of
intention to end the Term of this lease specifying a day not earlier than five
(5) days thereafter, and upon the giving of such notice the Term of this lease
and all right, title and interest of the Lessee
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hereunder shall expire on the day so specified, whereupon, Lessee shall
immediately surrender the Premises to Lessor, and, if Lessee fails so to do,
Lessor may, without prejudice to any other remedy which it may have enter upon
and take possession of the Premises and expel or remove Lessee and any other
person who may be occupying such Premises, by force if necessary, without being
liable for prosecution or any claims of damages, and Lessee agrees to pay to
Lessor on demand the amount of all loss and damages which Lessor may suffer by
reason of such termination, whether through liability to relet the Premises on
satisfactory terms or otherwise. Lessee shall pay a fee for each eviction notice
prepared and served to Lessee, and on each NSF check. If any checks written
during the lease term fail to clear Lessee's bank, Lessor may demand all future
rent payments to be either in the form of cash, certified check, money order,
wire transfer or cash equivalent funds. Further, Lessee shall reimburse the
Lessor for all legal fees and court costs incurred by Lessor due to Lessee's
default.
(b) Enter upon and take possession of the Premises without
terminating this lease and expel or remove Lessee and any other person who may
be occupying such Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim for damages therefor, and without
terminating this lease or releasing Lessee from its obligation hereunder for the
full Term hereof, endeavor to relet the Premises for such time and upon such
terms as the Lessor shall determine, and receive the rent therefor. In any case
of reletting hereunder, the Lessor may make repairs, alterations and additions
in or to the Premises, and redecorate the same to the extent deemed by Lessor
necessary or desirable, and the Lessee shall, upon demand, pay the cost thereof,
together with Lessor's expenses, the Lessee shall pay to the Lessor the amount
of such deficiency upon demand. In the event Lessor is successful in reletting
the Premises at a rental in excess of that agreed to be paid by Lessee pursuant
to the terms of this lease, Lessor and Lessee each mutually agree that Lessee
shall not be entitled, under any circumstances, to such excess rental, and
Lessee does hereby specifically waive any claim to such excess rental and to any
setoff under this Lease.
Section 17.3. The Lessee hereby expressly waives the service of notice of
intention to re-enter provided for in any statute, or to institute legal
proceedings to that end, and also waives any and all right of redemption in case
the Lessee shall be dispossessed by a judgment or by warrant of any court or
judge. The Lessor and Lessee hereby waive trial by jury in any action,
proceeding or counterclaim brought by either party against the other on any
matters arising out of or in connection with this lease, the relationship of
Lessor and Lessee thereunder, the Premises or the Lessee's use or occupancy
thereof. The terms "enter", "entry" as used in this lease are not restricted to
their technical legal meaning. If, on account of any breach or default by Lessee
in Lessee's obligations under the terms and conditions of this lease, it shall
become necessary or appropriate for Lessor to employ or consult with an attorney
concerning, or to enforce or defend, any of Lessor's rights or remedies
hereunder. Lessee agrees to pay all reasonable attorney's fees so incurred by
Lessor.
Section 17.4. Upon the occurrence of any of such events of default
described in Section 17.1 hereof, Lessee shall reimburse Lessor for unamortized
tenant improvement costs incurred by Lessor. Tenant improvement cost includes
those that Lessee requested as a condition to accept Lessor's lease.
SECTION XVIII (Holding Over)
Section 18.1. Lessee covenants that it will vacate the Premises
immediately upon the expiration or sooner termination of the Term of this Lease
or Lessee's right to possession hereunder. If the Lessee retains possession of
the Premises or any part thereof after the termination of the Term, the Lessee
shall pay the Lessor rent at double the monthly rate specified in Section 1 for
the time the Lessee thus remains in possession and, in addition thereto, shall
pay the Lessor for all damages, consequential as well as direct, sustained by
reason of the Lessee's retention of possession. If the Lessee remains in
possession of the Premises, or any part thereof, after the termination of the
Term, such holding over shall, at the election of the Lessor expressed in a
written notice to the Lessee and not otherwise, constitute a renewal of this
lease for one year at a rental rate equal to that which Lessor in good faith was
then prepared to offer the Premises to third parties. The provisions of this
Section do not exclude the Lessor's rights of re-entry or any other right
hereunder, including without limitation, the right to refuse double the monthly
rent and instead remove Lessee through summary proceedings for holding over
beyond the expiration of the Term of this lease.
SECTION XIX (Invalidity of Particular Provisions)
Section 19.1. If any covenant, agreement or condition of this lease shall
to any extent be invalid or unenforceable, the remainder of this lease, shall
not be affected thereby. Each covenant, agreement or condition of this lease
shall be valid and enforceable to the fullest extent permitted by law.
SECTION XX (Notices)
Section 20.1. All notices, demands and requests which are required to be
given by either party to the other shall be in writing and shall be deemed given
when sent by courier, hand delivery, faxed or United States Certified Mail,
postage prepaid, if for the Lessee, addressed to the Lessee at the Premises or
at such other place as the Lessee may designate by written notice to the Lessor
at the address specified on page one, or at such other place as the Lessor may
designate by written notice to the Lessee.
Section 20.2. Lessee will deliver to the Lessor, copies of any document
received from; and copies of any documents submitted by the Lessee to: the
United States Environmental Protection Agency and/or any state country or
municipal environment or health agency concerning its operations on the
Premises.
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SECTION XXI (Quiet Enjoyment)
Section 21.1. The Lessor covenants and agrees that the Lessee upon paying
the Basic Rent, additional rent and all other charges herein provided for and
performing and fulfilling covenants, agreements and conditions of this lease
shall lawfully and quietly hold, occupy and enjoy the Premises, subject,
however, to the matters herein set forth.
SECTION XXII (Limitation of Lessor's Liability)
Section 22.1. The term "Lessor" as used in this lease shall be limited to,
mean and include only the owner or owners of the Lessor's interest in this lease
in the time of question, and in the event of any transfer of such interest, the
Lessor herein named (and in case of any subsequent transfer, the then
transferor) shall be automatically freed and relieved from and after the date of
such transfers of all personal liability as respects the performance of any
covenants or agreements to be performed, provided that any funds in the hands of
such Lessor or the then transferor at the time of such transfer, in which the
Lessee has an interest shall be turned over to the transferee and provided
further that upon any such transfer, the transferee shall be deemed to have
assumed, subject to the limitations of this Section, all of the covenants,
agreements and conditions in this lease contained to be performed on the part of
the Landlord, the covenants and agreements contained in this lease on the part
of the Lessor to be performed shall, be binding on the Lessor, its successors
and assigns, only during their respective periods of ownership.
SECTION XXIII (Estoppel Certificate by Lessee)
Section 23.1. At any time upon not less than ten (10) days' notice the
Lessee agrees to execute and deliver to the Lessor a statement in writing
certifying (a) that this lease is unmodified and in full force and effect or
that the same is in full force and effect as modified, (b) the dates to which
the Base Rent, additional rent and other changes have been paid, and (c) that,
the Lessor is not in default under any provisions of this lease and if a default
exists, the nature of said default.
SECTION XXIV (Cumulative Remedies-No Waiver-No Oral Change)
Section 24.1. The remedies under the terms of this lease are cumulative
and are not exclusive of any other remedies to which the Lessor may be entitled,
either at law or in equity, in case of any breach or threatened breach of this
lease. No waiver by the Lessor of any covenant, option, agreement or condition
of this lease shall be deemed to have been made unless expressed in writing and
signed by the Lessor. No receipt of monies by Lessor from Lessee after the
termination or cancellation hereof or any rights granted to Lessee hereunder in
any lawful manner shall reinstate, continue or extend the Term hereof, or affect
any notice given to Lessee, or operate as a waiver of the right of the Lessor.
Section 24.2. This lease cannot be changed orally, but only by agreement
in writing signed by the party against whom enforcement of the change is sought.
SECTION XXV (Brokerage)
Section 25.1. Lessee and Lessor each represent and warrant to each other
that they have dealt with no broker, agent or other person in connection with
this transaction other than those persons as specified on Page One, and Lessee
and Lessor agree to indemnify and hold each other harmless from and against any
claims by any other broker, agent or other person claiming a commission or other
form of compensation by virtue of having dealt with Lessee or Lessor as the case
may be with regard to this leasing transaction. The provisions of this Section
shall survive the termination of this lease.
SECTION XXVI (Security Deposit)
Section 26.1. Lessee has deposited with Lessor the sum as specified on
Page One as security for the full performance of every provision of this lease
to be performed by Lessee. Lessor may use, apply or retain all or any part of
this security deposit for the payment of any basic rent and additional rent or
any other sum in default or for the payment of any other amount which Lessor may
spend or become obligated to spend by reason of Lessee's default, or to
compensate Lessor for any other loss, cost or damage which Lessor may suffer by
reason of Lessee's default. If any portion of said deposit is so used or
applied, Lessee shall, within five (5) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the security deposit
to its original amount and Lessee's failure to do so shall be a breach of this
lease. Lessor shall not, unless otherwise required by law, be required to keep
this security deposit separate from its general funds nor pay interest to its
Lessee. For full security deposit reimbursement the following conditions must be
met:
a.) All walls ceilings, doors & trim must be clean and free of holes or be
restored & refinished so that there is no evidence of damage to such
surfaces.
b.) Overhead door must be free of any broken panels, cracked lumber or dented
panels. The overhead door springs, rollers, trucks, motorized door
operator, and all other items pertaining to the overhead door must also be
in good working condition;
c.) Heaters, air conditioning units must be in good working order. Filters
must be changed - all thermostats must be in working order. Lessee must
supply Lessor with maintenance records;
d.) All floors must be clean and free of dust, dirt, grease, oil and stains.
Carpet to be shampooed or replaced if abused or neglected.
e.) Drop grid ceiling must be free of excessive dust from lack of changing
filters. (No ceiling tiles should be missing or damaged.);
f.) All trash must be removed from both inside and outside of the building;
g.) All light bulbs and ballasts must be working, with all lenses, globes and
fixtures cleaned and returned in good condition;
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h.) All signs in front of building and on glass entry door and rear door must
be removed;
i.) Hot water heater must work;
j.) All plumbing fixtures, equipment, and drains must be clean and in working
order;
k.) Warehouse floor must be clean and free of grease and stains;
l.) Windows must be clean;
m.) All keys must be returned;
n.) All mechanical and electrical systems must be in good working condition;
o.) Lessee shall be in compliance with surrender provisions of Section 6.2 of
this lease; and
p.) Lessee shall not have attempted to set off against the rent due hereunder
sums due and owing to Lessee from Lessor.
q.) The security deposit shall be held for the entire duration of the lease
term and shall not be applied towards the last month's rental of the
Lease. If Lessee fails to pay its final month's rental obligation and
attempts to apply its security deposit towards its rental obligations,
Lessor may, with notice to Lessee, retain all of said security deposit as
liquidated damages for the rental obligation only. Lessee shall continue
to be liable for all other lease obligations contained herein.
SECTION XXVII (Environmental Conditions)
Section 27.1. "Environmental Condition" Defined. As used in this lease,
the phrase "Environmental Condition" shall mean: (a) any adverse condition which
is in violation of any applicable state and federal environmental law, or (b)
any condition which may result in a claim of liability or of violation under any
federal, state or local statute hereafter enacted, or under any law, rule or
regulation now or hereafter promulgated by the state in which the leased
premises are located, or any political subdivision thereof, relating to such
matters (collectively "Environmental Laws").
Section 27.2. Compliance By Lessee. Lessee shall, at all times, during the
lease term, comply with all Environmental Laws, and shall not, in the use and
occupancy of the leased premises, cause or contribute to, or permit any party
claiming by, through or under Lessee, to cause or contribute to any
Environmental Condition. Lessee shall not, without the prior written consent of
Lessor, receive, keep, maintain or use on or about the leased premises any
substance as to which a filing with any federal, state or local governmental
agency having jurisdiction over the leased premises is required.
Section 27.3. Environmental Indemnity. Lessee will protect, indemnify and
save harmless Lessor, Agent and, if Lessor is an Illinois land trust, the
Trustee and its beneficiaries, and all of their agents, directors, officers and
employees, from and against all liabilities, causes of action, costs and
expenses (including, reasonable attorneys' fees and expenses) of whatever kind,
known or unknown, based upon any Environmental Laws or resulting from any
Environmental Condition which is caused or contributed to by the use or
occupancy of the leased premises by Lessee or any party claiming by, through or
under Lessee. In case any action is brought against any of the parties
indemnified herein by reason of any occurrence described in this section, Lessee
will, at Lessee's expense, retain legal counsel experienced in environmental
defense law, resist and defend such action. The obligations of Lessee under this
section shall survive the expiration or earlier termination of this lease.
Section 27.4. Testing and Remedial Work. Lessor may conduct tests in or
about the leased premises for the purpose of determining the presence of any
Environmental Condition. If such tests indicate the presence of an Environmental
Condition caused or contributed to by Lessee or any party claiming through
Lessee, Lessee shall, reimburse Lessor for the cost of conducting such tests.
Without limiting Lessee's liability under Section 27.3 hereof, in the event of
any such Environmental Condition, Lessee shall promptly and at its sole cost and
expense, take any and all steps necessary to remedy the same, complying with all
provisions of applicable law, or shall, at Lessor's election, pay Lessor for the
cost to Lessor of remedying the same. In advance of Lessor's performing such
work based upon Lessor's reasonable estimate of the cost thereof, and upon
completion of such work by Lessor, Lessee shall pay to Lessor any shortfall
promptly after Lessor bills Lessee therefor, or Lessor shall promptly refund to
Lessee any excess deposit, as the case may be.
SECTION XXVIII (Miscellaneous Provisions)
Section 28.1. In the event rail side track service is provided to the
Premises, Lessee covenants and agrees to pay to the Lessor, as additional rent,
its prorata share of all costs incurred by Lessor under rail agreements for the
provisions and maintenance of such rail side track service.
Section 28.2. In the event Lessee wishes to extend this lease, Lessee
shall contact Lessor in writing six (6) months prior to the termination date of
this lease, expressing his desire to extend. If Lessee fails to so notify Lessor
within the time provided and Lessor expends money for advertising or other
expenses in renting the demised premises, and Lessee enters into a lease
extension after Lessor has expended money or incurred liability for promoting
the demised premises, Lessee shall be obligated to reimburse Lessor for all such
expenses incurred by Lessor, including a real estate commission, if a
replacement tenant has already been secured by Lessor's real estate agent. The
foregoing paragraph shall not be construed as granting Lessee an option to
extend.
Section 28.3. Lessee shall pay a fee for each additional copy of this
lease other than Lessee's initial copies received from Lessor.
Section 28.4. All fees for additional services shall be set by Lessor's
Agent, shall be paid directly to said Agent, and shall be subject to change.
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Section 28.5. Lessee shall not keep any animals or pets on, about or
within the premises. Further, Lessee shall not make or permit objectional noises
or odors to emanate from the Premises nor disturb, solicit or canvas any
occupant of the building.
Section 28.6. Lessee shall at all times, leave its heating systems on at a
temperature sufficient to prevent freeze-up of any water pipes in the Premises,
or in the walls, floors and ceilings of space near the Premises.
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Exhibit 10.59
THIRD EXTENSION AND AMENDMENT TO LEASE
This Third Extension and Amendment to Lease is entered into this
30th day of April, 1999 by and between HIGHVIEW PROPERTIES-ONE, L.L.C.,
successor by merger to Highview Associates, having an office at 33 Cotters Lane,
East Brunswick, New Jersey 08816 ("Landlord") and TRANSFER PRINT FOILS
("Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant entered into a lease dated May 1, 1991
as amended August 20, 1991 and extended May 15, 1996 and revised extension July,
1996 for approximately 15,000 square feet of space in premises located at 21
Cotters Lane, East Brunswick, New Jersey ("Lease");
WHEREAS, Tenant desires to lease an adjacent approximately 15,000
square feet of space from Landlord;
WHEREAS, Tenant desires to renew the Lease on the following terms;
and
WHEREAS, Landlord and Tenant desire to amend the specific provisions
of said Lease to include said space within the Lease and to extend the
termination date of same.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The term of the Lease is extended for a period of five (5) years
commencing on January 1, 2001 and terminating on December 31, 2005.
2. Tenant shall lease from Landlord and Landlord shall leave to
Tenant an additional approximately 15,000 square feet of space adjacent to the
currently leased premises which space is more particularly described in the
attached Schedule A ("New Space").
3. The term of the lease on the New Space shall commence on August
1, 1999 and terminate December 31, 2005 corresponding to the termination date of
the Lease.
4a. Commencing August 1, 1999, the base monthly rent payable
pursuant to Paragraph 3 of the Lease shall be increased $5,312.50 per month from
$5,312.50 to $10,625.00, subject to adjustment as set forth in the Lease.
4b. Commencing January 1, 2001, the base monthly rent payable
pursuant to Paragraph 3 of the Lease shall be increased $625.00 per month from
$10,625.00 to $11,250.00, subject to adjustment as set forth in the Lease.
5. Commencing August 1, 1999, Tenant's proportionate share shall be
on the basis of 30,000 square feet over 30,000 square feet.
6. Commencing August 1, 1999, Paragraph 5(e) of the Lease shall be
amended to increase the monthly roof maintenance charge from $125.00 to $250.00.
<PAGE>
7. Paragraph 35 of the Lease shall be deleted and replaced with the
following:
35. OPTION TO RENEW
The Tenant is hereby given an option to renew this Lease for one (1)
additional term of five (5) years from the term hereof upon all the terms and
conditions herein, except that the amount of the monthly rent due and payable
during the renewal period shall be increased and calculated in the manner
hereinafter set forth; and provided that (a) written notice of the exercise of
option is sent by certified mail, return receipt requested, to Landlord at least
six (6) months prior to the expiration of the term set forth in Paragraph 1
hereof; and further, (b) that Tenant shall not be in default under the terms of
this Lease.
The Base Monthly Rental as set forth in Paragraph #3 of the Lease
shall be adjusted upon the commencement of the aforesaid Renewal Term (the
"Adjusted Date") to reflect any increase in the cost of living as such increase,
if any, is reflected by a change in the "All Items" Index for the New
York-Northeastern New Jersey area of the "Consumers Price Index for all Urban
Consumers" (Revised CPI-U) (1982-84=100) published by the Bureau of Labor
Statistics of the U.S. Dept. of Labor.
On the Adjustment Date, the increased Base Monthly Rental as
provided for in Paragraph #3 of the Lease shall be determined by multiplying the
Base Monthly Rental by a fraction, the denominator of which is the Consumer
Price Index for first month of the Lease and the numerator of which is the Index
number for the last month of the term set forth in Paragraph 1 hereof, as
hereinafter described in "Example Formula." If the C.P.I. is discontinued, then
the parties shall, in good faith, agree on a suitable substitute.
EXAMPLE FORMULA
CPI for last month of term
Base Monthly Rental X ----------------------------
CPI for first month of lease
10. Tenant agrees to accept the New Space in its present "as is"
condition.
11. This Third Extension and Amendment is contingent upon the prior
tenant vacating the New Space by July 1, 1999.
12. The Tenant represents it has not dealt with any broker in
connection with the within Extension and Amendment and hereby agrees to
indemnify and hold Landlord and its agent harmless from any claims, damages,
costs and expenses incurred by Landlord and/or its agent as a result of a breach
of the foregoing representation.
13. Except as modified herein, all of the terms, covenants and
conditions contained in the Lease shall apply to the New Space.
14. Except as modified herein, all of the terms, covenants and
conditions contained in the Lease shall remain in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Third Extension
and Amendment to Lease on the day and year first above written.
Witness: HIGHVIEW PROPERTIES-ONE, L.L.C.
/s/ [ILLEGIBLE] BY: /s/ FRANK A. GREEK, JR.
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FRANK A. GREEK, JR.
GENERAL MANAGER
Attest: TRANSFER PRINT FOILS/FOILMARK
/s/ J.T. Webb, V.P. Operations
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AS-BUILT FLOOR PLAN
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