UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 22, 2004
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FIRST MONTAUK FINANCIAL CORP.
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(Exact name of Registrant as specified in its charter)
New Jersey 0-6729 22-1737915
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(State or other jurisdic- (Commission (IRS Employer
tion of incorporation) File Number) Identification No.)
Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, N.J. 07701
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (732) 842-4700
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
On September 22, 2004 our wholly-owned subsidiary First Montauk Securities
Corp. entered into a 4th Amendment to its Master Lease dated March 1997 for our
corporate headquarters in Red Bank, New Jersey. The amendment provides for a
lease term of five (5) years commencing on February 1, 2005, for a reduced space
of 27,255 square feet. The lease provides for monthly rent payments of $50,762.
As additional rent, we are required to pay a proportional share of any increases
in real estate taxes and operating expenses above the amount paid during the
2005 calendar year, insurance premiums relating to the premises, and all utility
charges related to the premises. The amendment contains a five-year option to
renew at a rental payment equal to the then-current fair market rate per square
foot applicable to the leased premises.
Item 9.01: Financial Statements and Exhibits.
Exhibit
10.1 4th Amendment to Lease dated September 22, 2004
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated: September 28, 2004 First Montauk Financial Corp.
(Registrant)
By /s/ Victor K. Kurylak
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Victor K. Kurylak, President
EXHIBIT INDEX
Exhibit No. Description
10.1 4th Amendment to Lease dated September 22, 2004
03 Exhibit 10.1
FOURTH AMENDMENT TO LEASE, made the 22nd day of September,
2004, by and between RIVER OFFICE EQUITIES, L.L.C., a New Jersey limited
liability company, f/k/a River Office Equities, a New Jersey partnership, having
an office at c/o JGT Management Company, Ten Woodbridge Center Drive, PO Box
1408, Woodbridge, NJ 07095, hereinafter called the "Landlord"; and FIRST MONTAUK
SECURITIES CORP., a New York corporation, having an office at Parkway 109 Office
Center, 328 Newman Springs Road, Red Bank, New Jersey 07701, hereinafter
referred to as the "Tenant".
W I T N E S S E T H:
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WHEREAS, the Landlord owns certain lands and premises in the
Township of Middletown, County of Monmouth and State of New Jersey, which lands
and premises are known as Parkway 109 Office Center, 328 Newman Springs Road,
upon which there has been erected a building containing approximately 61,288
square feet (hereinafter called the "Building"). Tenant currently occupies
30,805 gross square feet of the Building (hereinafter called the "Original
Leased Premises"); and
WHEREAS, the Landlord and Tenant have heretofore entered into
a certain lease dated March 5, 1997, as amended by First Amendment to Lease
dated March 3, 1998, by Letter Amendment dated November 19, 1999, and by Third
Amendment to Lease dated July 21, 2004 (hereinafter collectively called the
"Lease"), pursuant to which Tenant has leased the Original Leased Premises, all
in accordance with the terms and conditions of the Lease; and
WHEREAS, the Landlord has agreed to release a portion of the
Original Leased Premises from the terms of the Lease, so as to provide for the
Tenant leased space containing 27,255 square feet of Gross Rentable Area which
is located on the first and third floors of the Building (hereinafter called the
"Reduced Leased Premises"), in accordance with the terms and conditions
hereinafter provided; and
WHEREAS, the Landlord and Tenant by this Fourth Amendment to
Lease wish to modify, supplement and amend the terms and conditions of the Lease
to provide for reduced rent and to modify other Lease obligations as the same
shall be required and attributable to the Reduced Leased Premises; and
WHEREAS, Landlord and Tenant have agreed to extend the term
of the Lease, as hereinafter set forth. NOW, THEREFORE, in consideration of
the sum of ONE ($1.00) DOLLAR and other good and valuable consideration,
the parties hereto covenant and agree as follows:
1. The Lease term applicable to the Reduced Leased Premises shall commence
on February 1, 2005 (the "New Commencement Date"), and shall continue through
January 31, 2010. The Tenant shall vacate that portion of the Original Leased
Premises which is located on the second (2nd) floor of the Building (which
second floor space contains 3,550 square feet) on or before January 31, 2005
(the "Release Date").
2. Effective as of the New Commencement Date, the Leased Premises shall
consist of the Reduced Leased Premises containing 27,255 square feet of Gross
Rentable Area (being comprised of the entire third floor of the Building
containing 22,762 square feet and a portion of the first floor of the Building
containing 4,493 square feet), as the same is shown and set forth on the floor
plans annexed hereto and made a part hereof as Schedule "A". The Tenant shall
from and after the Release Date occupy the Reduced Leased Premises in lieu of
the Original Leased Premises and Article 1 of the Lease is hereby amended
accordingly. Should Tenant require additional first floor space prior to the New
Commencement Date and such space is available through Landlord, Landlord shall
lease to Tenant that portion of such first floor space required by Tenant under
the same terms and conditions stipulated in this Fourth Amendment to Lease.
3. Commencing with the New Commencement Date, Article 3.1 of the Lease
shall be modified, amended and supplemented to provide that Tenant shall pay
Annual Basic Rent in the amount of SIX HUNDRED NINE THOUSAND ONE HUNDRED FORTY
NINE AND 25/100 ($609,149.25) DOLLARS per annum, payable in advance in equal
installments of FIFTY THOUSAND SEVEN HUNDRED SIXTY TWO AND 44/100 ($50,762.44)
DOLLARS per month, in the same manner as provided in Article 3 of the Lease.
Notwithstanding the above, it is understood and agreed that Tenant shall have no
obligation to pay the Annual Basic Rent installments which are applicable to the
months of February, 2005 and February, 2006. All of the other terms and
conditions of the Lease, including the requirement for the payment of Additional
Rent, will be applicable to such months.
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4. Effective as of the New Commencement Date, Tenant shall have the right
to utilize ninety five (95) parking spaces in lieu of the one hundred eight
(108) parking spaces previously allocated to Tenant under the Lease, and Article
1.3 of the Lease is hereby amended accordingly.
5. Effective as of the New Commencement Date, Tenant's Percentage shall be
revised from 50.26% to 44.47% wherever applicable, which revision and
readjustment is attributable to the adjustment of the Leased Premises in
accordance with this Fourth Amendment to Lease. In addition, the Base Year for
the calculation of increases in Taxes and Operating Expenses shall then be
deemed to be the calendar year 2005.
6. Tenant shall occupy the Reduced Leased Premises as of the New
Commencement Date in its current, "as is" condition, without Landlord having any
obligation to perform any work or install any improvements therein, except as
hereinafter set forth. At Tenant's option Landlord shall either (i) have no less
than three (3) general contractors reasonably approved by Tenant provide
competitive bids on all items of work necessary to construct and outfit the
Reduced Leased Premises or (ii) select a general contractor of Tenant's choice
(with landlord's reasonable approval) to provide competitive bids on all items
of work to no less than three (3) subcontractors per trade. Tenant shall have
the right to provide a list of general contractors/subcontractors to provide
bids on all such work. Should Tenant choose option (ii), Tenant shall install
leasehold improvements within the Reduced Leased Premises, in accordance with
plans and specifications (the "Tenant's Plan") which shall be prepared by Tenant
and approved by Landlord and Tenant in writing. Landlord hereby agrees that its
approval of Tenant's Plan shall not be unreasonably withheld or delayed. Tenant
shall install all leasehold improvements required by Tenant's Plan, at Tenant's
sole cost and expense (except for Tenant's Allowance, as hereinafter set forth),
in accordance with all applicable building codes, rules and regulations, and
Tenant shall be responsible for obtaining any and all permits or approvals which
are required for such work. Landlord shall have the right to approve Tenant's
general contractor and all subcontractors, which approval shall not be
unreasonably withheld or delayed. Landlord hereby agrees that it shall
contribute $7.00 per sq. ft. of Gross Rentable Area, or the sum of ONE HUNDRED
NINETY THOUSAND SEVEN HUNDRED EIGHT FIVE AND 00/100 ($190,785.00) DOLLARS (the
"Tenant's Allowance") toward the cost of Tenant's plan and the installation of
all improvements required by Tenant's Plan. Tenant's Allowance shall be
disbursed to Tenant based upon monthly requisitions, which requisitions shall be
accompanied by copies of paid invoices for work then performed to date. In the
event that Tenant's Allowance is not fully utilized in connection with the work
to be performed by Tenant, up to NINETY FIVE THOUSAND THREE HUNDRED NINETY TWO
AND 50/100 ($95,392.50) DOLLARS of such Tenant's Allowance may be utilized by
Tenant as a consecutive monthly credit against the Annual Basic Rent payable
subsequent to the New Commencement Date, as hereinabove set forth in paragraph
3; such credit shall be applied upon the determination of said amount and shall
continue until such time as the unutilized Tenant Allowance is exhausted. Tenant
hereby agrees that it shall indemnify, defend and save harmless the Landlord
from and against any and all claims or liabilities incurred in connection with
the performance of the work required by Tenant's Plan, including the claims of
any contractor for payment under the Construction Lien Law of the State of New
Jersey.
7. Notwithstanding the provisions of paragraph 6 above, Landlord hereby
agrees to perform the following work within the Building, at Landlord's sole
cost and expense:
(a) Upgrade all building lobbies, hallways, elevators and bathrooms,
including but not limited to the replacement of all common area doors,
ceilings and lights, the replacement of all vinyl wall coverings and
carpeting and the repainting of all painted surfaces within the common
areas.
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(b) Landlord shall have its HVAC contractor perform a thorough inspection
of the HVAC system serving the Building and the Leased Premises, and
shall have said HVAC contractor issue an inspection/repair report, a
copy of which shall be forwarded to Tenant. If no repairs are
currently necessary, the inspection/repair report shall describe the
current condition of the HVAC system and shall indicate that no
immediate repairs or replacements are necessary to place the same in
good working order and condition. Thereafter, Landlord shall enter
into an annual HVAC service/maintenance agreement with its HVAC
contractor, which agreement shall provide for regularly scheduled
service. The HVAC system shall be inspected and serviced just prior to
the onset of the cooling system, and an inspection/repair report shall
be delivered to Tenant. If any repairs are required by said report,
the same shall be performed promptly. In the event of any outage or
failure of the HVAC system, Landlord agrees that it shall use its best
efforts to repair the same as quickly as is possible including
after-hours and emergency service and expedited delivery of required
parts, so that the same may be made operational as soon as is
reasonably possible.
(c) Replace the existing bulbs (and ballasts, as necessary) throughout the
Reduced Leased Premises with energy efficient models, which work shall
be performed in conjunction with the work to be performed by Tenant
pursuant to paragraph 6 hereof.
In the event any of the foregoing work has not been completed by December 1,
2005, the Annual Basic Rent payable by Tenant shall be reduced to the amount of
FORTY ONE THOUSAND SIX HUNDRED SEVENTY SEVEN AND 44/100 ($41,677.44) DOLLARS per
month until such time as such work has been completed by Landlord. In the event
that Tenant has leased additional space in the Building in accordance with the
provisions of Paragraph 8 hereof, and if such work has not been completed by
December 1, 2005, the Annual Basic Rent payable by Tenant shall be reduced at
the rate of $4.00 per square foot, until such time as such work has been
completed.
8. It is understood and agreed that in the event any space which is located
on the first floor of the Building becomes available during the term of the
Lease, as extended, the Landlord shall give written notification of such
availability to the Tenant, provided that such space becomes available prior to
February 1, 2008. Tenant shall then have a period of thirty (30) days within
which to accept Landlord's offer to lease said space to the Tenant, which
election by Tenant shall be made by written notice to Landlord within said
thirty (30) day period. In the event Tenant elects not to lease said space, or
fails to notify Landlord of its election within said thirty (30) day period,
Landlord shall then be free to lease said space to any third party free and
clear of Tenant's rights under this Article. If Tenant elects to take such
space, Tenant shall enter into an amendment to the Lease incorporating the
additional space into the premises leased hereunder within thirty (30) days
after Landlord's written notice to Tenant. Such lease amendment shall be on the
same terms and conditions as in the Lease contained except that (a) the Annual
Basic Rent payable for such additional space shall commence on the earlier to
occur of (i) sixty (60) days following delivery of the additional space to
Tenant or (ii) upon substantial completion of the improvements to be made by
Tenant within such additional space, (b) the Tenant's Allowance applicable to
such space shall be pro rated based upon the then remaining term of the Lease
and (c) Tenant shall pay Annual Basic Rent for such space in an amount equal to
the average of TWENTY TWO AND 35/100 ($22.35) DOLLARS per rentable square foot
and the per square foot fair market value of such space. Fair market value shall
be determined as follows:
06
Upon exercise of its right to lease additional space under this paragraph
8, the Landlord shall deliver to Tenant a written notice stating the per square
foot fair market value of the space and the Annual Basic Rent to be paid
therefore. In the event that the Tenant objects to the Annual Basic Rent quoted
by Landlord, Tenant shall deliver to Landlord a written notice stating the per
square foot fair market value of the additional space and the Annual Basic Rent
to be paid therefore. In the event the parties cannot agree within thirty (30)
days after Landlord's notice of the then fair market rental value, the parties
shall agree on the appointment of a real estate appraiser (the "Appraiser")
having the M.A.I. designation, the cost of which shall be shared equally by
Landlord and Tenant, which Appraiser shall be knowledgeable in the Monmouth
County, New Jersey market rental area, who shall choose the fair market value
and Annual Basic Rent set forth in either Landlord's notice or Tenant's notice.
If the parties cannot agree upon the appointment of the Appraiser, each party
shall choose its own real estate appraiser, having the MAI designation, and
those two (2) appraisers shall agree upon a third appraiser who shall act as the
appraiser. Upon establishment of the per square foot fair market value of the
additional space, such amount shall be averaged with the per square foot rate of
TWENTY TWO AND 35/100 ($22.35) DOLLARS to establish the Annual Basic Rent which
shall be payable to such additional space.
9. Article 4.1 (a) of the Lease is hereby modified to confirm that the Real
Property is currently fully assessed. Article 4.1 (e) is amended to provide that
any such change in the method or scope of taxation will apply to the Base Year,
as well as all subsequent calendar years.
10. Article 4.2 (a) of the Lease is hereby modified to provide that the
interpolation of Operating Expenses to reflect ninety five (95%) percent
occupancy of the Building shall be applicable to the Base Year as well as all
succeeding years.
11. Article 4.2 (b) is modified to exclude the following additional items
from the definition of Operating Expenses:
(a) Depreciation of the Building and other improvements located on the
Property;
(b) Franchise, income and excess profit taxes of Landlord;
(c) Salaries and benefits of off-site officers, directors, and executive
personnel of Landlord above the level of Building manager;
(d) Space planning and architectural fees;
(e) Engineering fees (other than those relating to the general operation of
the Building);
(f) Real estate commissions;
(g) Marketing and advertising expenses incurred in connection with the
development and leasing of the Building;
(h) Any sums paid to a person, firm corporation or other entity related to
Landlord which is in excess of the amount which would have been paid in the
absence of such relationship;
(i) Cost of disputes between Landlord and any third party regarding matters
not related to the Building;
(j) Cost of defending any lawsuits with mortgagees or ground lessors;
(k) Operating Expenses for which Landlord is reimbursed whether by
insurance, by its carriers or otherwise
(l) The cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost;
07
(m) Charges (including applicable taxes) for electricity or any other
utility for which Landlord is entitled to reimbursement from any tenant other
than though Operating Expenses;
(n) The cost of any HVAC, janitorial or any other service provided to other
tenants in excess of that required pursuant to this Lease;
(o) Insurance premiums to the extent Landlord is entitled to reimbursement
from any party other than through Operating Expenses;
(p) Interest, principal payments and other costs of indebtedness
encumbering the Building;
(q) Any bad debt losses, rent losses, or reserves for bad debt or rent
losses;
(r) The cost of repairs or restoration necessitated by fire or other
casualty as well as the cost of repair or restoration of the Building following
condemnation;
(s) Rent under any ground, overriding and/or underlying leases;
(t) The cost of installing, operating and maintaining any specialty such as
(but not limited to) an observatory, broadcasting facilities, luncheon club,
athletic or recreational club, theater, art gallery, or garage;
(u) Auditing fees other than auditing fees in connection with the
preparation of statements required pursuant to additional rent or lease
escalations provisions;
(v) The cost of correcting defects in the original construction of the
Building, except that conditions (not occasioned by construction or equipment
defects) resulting from ordinary wear and tear shall not be deemed defects for
the purpose of this category;
(w) Cost of any repair made by landlord to remedy damage caused by, or
resulting from the negligence or willful act of Landlord, its agents, servants,
contractors, or employees;
(x) The cost of any additions to the Building;
(y) Legal and other professional fees and expenses incurred in preparing,
negotiating and executing leases, amendments, terminations and extensions or in
resolving any disputes with Tenant or other occupants (unless the resolution of
the dispute benefits all tenants of the Building) or enforcing lease
obligations, including, without limitation, court costs;
(z) Expenses incurred by Landlord in connection with the transfer or
disposition of the Landlord or Building or any ground, underlying or overriding
lease, including, without limitation, transfer, deed and gains taxes;
(aa) Any compensation paid to clerks, attendants or other persons, or other
costs incurred in commercial concessions including, without limitation, garage
or other parking concession operating by Landlord or others on the Property.
(bb) Costs for sculpture, paintings or other objects of art in excess of
comparable amounts spent for such items in office buildings of comparable
quality in the competitive area of the Building not owned by Landlord or
affiliates;
(cc) Fines or penalties incurred by Landlord due to Landlord's violation of
any applicable governmental law, requirement or order;
(dd) Lease payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased;
08
(ee) Any late fees, penalties, interest charges or similar fees incurred by
Landlord, except in connection with interest payments related to any payment by
Landlord of assessments payable over the longest time permitted by law;
(ff) Costs associated with the operation of business of the entity which
constitutes Landlord as the same are distinguished from the costs of operation
of the Building, including, without limitation, accounting and legal expense,
costs of selling, syndicating, financing, mortgaging or hypothecating landlord's
interest in the Building, and costs of any disputes between Landlord and its
employees or building managers;
(gg) The value or lost income to Landlord of any office space in the
Building which is utilized for the managing of the Building;
(hh) Additionally, there shall be deducted from Operating Expenses all
amounts received by Landlord through proceeds of insurance or condemnation
awards to the extent they are compensation for, or reimbursement of, sums
previously included in Operating Expenses hereunder.
12. Article 4.2 (c) is hereby modified so as to clarify that the amortized
value of capital expenditures made pursuant to Subarticle (P) shall only be
included in Operating Expenses to the extent of any savings realized. In Article
4.2 (e)(A), the Base Year shall not be subject to adjustment based upon
increases in electrical rates.
13. Article 4.2 (e) (B) and (C) are hereby modified to provide that
Landlord shall deliver to Tenant, on an annual basis, Landlord's reasonable
estimate of the amount by which Operating Expenses for such calendar year shall
exceed the Operating Expenses applicable to the Base Year. Tenant shall pay to
Landlord, monthly, one twelfth (1/12) of such estimated amount, subject to
adjustment at the expiration of such calendar year. This procedure shall be
followed during each calendar year during the lease term.
14. Landlord and Tenant agree that Article 7.2 of the Lease relates to
electrical charges for lighting and for the operation of Tenant's machinery and
equipment. The cost of operating the HVAC system serving the Building is
included within Operating Expenses.
15. Article 13 (d) (D) is hereby amended to provide that Tenant shall pay
to Landlord one-half (1/2) of any increment in rent or other consideration
received in connection with any assignment or subletting after Tenant has first
deducted therefrom any free rent concessions and real estate brokerage
commissions incurred in connection with such assignment or subletting. In
addition, Article 13 of the Lease is amended to provide that Landlord's consent
shall not be required and the provisions of Article 13(d)(D) shall not apply in
the event of any assignment or subletting to (a) any entity succeeding to the
business and assets of Tenant whether by merger, consolidation or sale of assets
or stock or (b) any parent, subsidiary or corporate affiliate of Tenant. No such
assignment or subletting shall be effective, however, until a fully executed
copy of the agreement of assignment or subletting is delivered to Landlord.
16. A new Article 15.4 is hereby inserted in the Lease, as follows:
"15.4Landlord shall be responsible for the cost of compliance of
the Building and Property which the American with Disabilities Act
(the "ADA"), as the same relates generally to the Building and
Property. Tenant shall be responsible for any required compliance with
the ADA which is due to the specific nature of Tenant's use and
occupancy of the Leased Premises."
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17. Article 20.1 is hereby amended to provide that Tenant shall have the
right to install normal office decorations and to perform cosmetic changes
(i.e., recarpeting and repainting) without the Landlord's consent. Landlord
further agrees that it shall notify Tenant if any alterations or modifications
will need to be restored at the expiration of the lease term, at the time that
Landlord gives its consent to such alterations or modifications.
18. Landlord hereby confirms that Tenant shall continue to have the right
to maintain the signage which Tenant currently utilizes at the Property.
19. The following Subparagraph (e) is hereby inserted in Article 25:
"(e) Subject to the provisions of Article 21.2, the foregoing
shall not require indemnity by Tenant in the event of damage or injury
occasioned by the negligence or acts of commission or omission of the
Landlord, its agents, servants or employees."
20. Article 31 of the Lease is amended to provide that Landlord shall not
be released of its obligations until such time as Landlord's transferee has
assumed said obligations in writing.
21. Landlord and Tenant hereby confirm that Article 38 of the Lease is
intended to waive the right of trial by jury only, not trial before a judge.
22. The parties mutually represent to each other that THE ACCLAIM GROUP,
LLC is the sole broker who negotiated and consummated the within transaction,
and that neither party dealt with any other broker in connection with the within
agreement, it being understood and agreed that the Landlord shall be
responsible, at its sole cost and expense, to pay the real estate brokerage
commission in connection with this transaction. Landlord agrees to indemnify,
defend and save harmless Tenant in connection with the claims of any other real
estate broker claiming commissions in connection with the within transaction and
claiming authority from Landlord. Tenant agrees to indemnify, defend and save
harmless Landlord in connection with the claims of any other real estate broker
claiming commissions in connection with the within transaction and claiming
authority from Tenant.
23. Article 51 of the Lease is hereby deleted in its entirety.
24. Article 52 of the Lease is hereby deleted in its entirety.
25. Effective as of the New Commencement Date, Landlord hereby agrees that
it shall return the sum of TWENTY FIVE THOUSAND EIGHT HUNDRED SEVENTY THREE AND
33/100 ($25,873.33) DOLLARS of the Tenant's security deposit to the Tenant.
Thereafter, Landlord will be holding the sum of FIFTY THOUSAND AND 00/100
($50,000.00) DOLLARS as a security deposit pursuant to the terms of Article 49
of the Lease.
26. Provided the Tenant is not in default pursuant to the terms and
conditions of the Lease, the Tenant is hereby given the right and privilege to
renew the lease for one (1) five (5) year period, to commence on February 1,
2010, which renewal shall be upon the same terms and conditions as in the Lease
contained, except as follows:
(1) Tenant shall pay during the five (5) year renewal term Annual
Basic Rent based upon the fair market value per square foot applicable
to the Leased Premises. The fair market value shall be determined as
follows: After Tenant has given written notice to the Landlord, as
hereinafter provided, of its exercise of the within option, the
Landlord shall deliver to Tenant a written notice stating the Annual
Basic Rent to be paid for the Leased Premises during the five (5) year
renewal term. In the event that the Tenant objects to the Annual Basic
Rent quoted by Landlord, the issue of fair market value shall be open
to negotiation between Landlord and Tenant. In the event the parties
cannot agree within thirty (30) days after Landlord's notice of the
then fair market rental value, the parties shall agree on the
appointment of a real estate appraiser (the "Appraiser") having the
M.A.I. designation, the cost of which shall be shared equally by
Landlord and Tenant, which Appraiser shall be knowledgeable in the
Monmouth County, New Jersey market rental area, who shall make a fair
market rental determination. If the parties cannot agree within thirty
(30) days subsequent to the appointment of the Appraiser, then the
matter shall be submitted to binding arbitration pursuant to the rules
for commercial arbitration of the American Arbitration Association, at
the equal administrative cost of Landlord and Tenant. It is expressly
understood and agreed that in any event the renewal Annual Basic Rent
for the five (5) year renewal term shall not be less than the Annual
Basic Rent of SIX HUNDRED NINE THOUSAND ONE HUNDRED FORTY NINE AND
25/100 ($609,149.25) DOLLARS, in the event fair market rent shall be
determined to be less than said sum as such determination shall be
made in the manner hereinabove provided.
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(2) The right, option, and privilege of the Tenant to renew this
lease as hereinabove set forth is expressly conditioned upon the
Tenant delivering to the Landlord, in writing, by certified mail,
return receipt requested, twelve (12) months' prior notice of its
intention to renew, which notice shall be given to the Landlord by the
Tenant no later than January 31, 2009.
27. Except as in this Fourth Amendment to Lease provided, all other terms
and conditions of the Lease shall remain in full force and effect and shall be
applicable to the Reduced Leased Premises as of the New Commencement Date.
28. This Agreement shall be binding on the parties hereto, their heirs,
successors and assigns.
29. The submission of the within Fourth Amendment to Lease by Landlord to
Tenant for review and approval shall not be deemed an option or an offer, it
being intended that no rights or obligations shall be created by Landlord or
Tenant until the execution and delivery of the within Fourth Amendment to Lease
by Landlord and Tenant, one to the other.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals or caused these presents to be signed by its proper corporate officers
and caused its proper corporate seal to be hereunto affixed, the day and year
first above written.
WITNESS: RIVER OFFICE EQUITIES, L.L.C.
a New Jersey limited liability company
/s/ Barbara Sousa /s/ Jeffries Shein
- --------------------------- By:-----------------------------------
Jeffries Shein
ATTEST: FIRST MONTAUK SECURITIES CORP.,
a New York corporation
/s/ Robert I. Rabinowitz By:/s/ Victor K. Kurylak
- --------------------------- ------------------------------------
Victor K. Kurylak, President
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STATE OF NEW JERSEY )
)SS:
COUNTY OF MIDDLESEX )
BE IT REMEMBERED, that on this 22nd day of September, 2004, before me,
the subscriber, personally appeared Jeffries Shein, who, I am satisfied, is the
person who signed the within instrument as Manager of RIVER OFFICE EQUITIES,
L.L.C., a New Jersey limited liability company, and thereupon he acknowledged
that the said instrument was signed, sealed and delivered by him as such
Manager, and is the voluntary act and deed of the limited liability company.
/s/ Barbara Sousa
--------------------------------------
STATE OF NEW JERSEY )
)SS:
COUNTY OF MONMOUTH )
BE IT REMEMBERED, that on this 15th day of September, 2004, before me,
the subscriber, Corrine M. Kanterman, personally appeared, Victor K. Kurylak,
who, I am satisfied, is the person who signed the within Instrument as President
of FIRST MONTAUK SECURITIES CORP., a New York corporation, the Tenant named
therein, and he thereupon acknowledged that the said instrument made by the
corporation and sealed with its corporate seal, was signed, sealed with the
corporate seal and delivered by him as such officer and is the voluntary act
and deed of the corporation, made by virtue of authority from its Board of
Directors.
/s/ Corrine M. Kanterman
--------------------------------------
PREPARED BY; ROBERT K. BROWN, ESQ.
12
FOURTH AMENDMENT TO LEASE
BY AND BETWEEN:
RIVER OFFICE EQUITIES, L.L.C.
a New Jersey limited liability company
"Landlord"
-and-
FIRST MONTAUK SECURITIES CORP.,
a New York corporation,
"Tenant"
DATED: SEPTEMBER 22, 2004
LAW OFFICES
EPSTEIN, FITZSIMMONS, BROWN,
GIOIA, JACOBS & SPROULS
A Professional Corporation
245 Green Village Road
P.O. Box 901
(973) 593-4900
Fax (973) 593-4966
September 17, 2004