Exhibit 10.5
LEASE AMENDMENT
THIS LEASE AMENDMENT AGREEMENT ("Agreement") is made on the 23rd day of
February, 2004, by and between 2340 TOWNLINE ROAD CORPORATION, a New York
corporation with offices at 3006 East Avenue, Rochester, New York 14610
("Lessor"), TOTAL IDENTITY SYSTEMS CORP., a New York corporation with offices at
2340 Brighton-Henrietta Town Line Road, Rochester, New York 14623 ("Lessee"),
and TOTAL IDENTITY CORP., a Florida corporation with offices at 11924 Forest
Hill Blvd., Suite 22-204, Wellington, FL 33414 ("Guarantor")
Recitals
This Agreement is made in reference to the following which Lessor,
Lessee and Guarantor acknowledge are true and correct:
a. Lessor and Lessee are parties to a Lease dated as of October ,
2003 (the "Lease"). A copy of the Lease is annexed hereto as
Exhibit "A."
b. Pursuant to Lease, Lessee has leased from Lessor real property
commonly known as 2340 Brighton-Henrietta Townline Road,
Brighton, Monroe County, New York (the "Demised Premises").
c. The initial term of the Lease expires on October 31, 2013.
d. Guarantor has guaranteed the payment and performance of the
obligations of Lessee under the Lease.
e. Lessor and Lessee wish to amend the Lease as hereinafter set
forth.
f. Guarantor is signing this Agreement to signify its consent to
such Amendment and its agreement to continue to be bound to
the terms of its guaranty of the Lease as amended hereby.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, and intending to be legally bound hereby, Lessor, Lessee and
Guarantor hereby covenant and agree as follows:
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1. Defined Terms. Unless otherwise expressly defined in this Agreement,
all capitalized terms used in this Agreement shall have the meanings ascribed to
such terms in the Lease.
2. Amendment to Section 1 of Lease. Section 1 of the Lease is hereby
amended by providing that the term of the Lease shall terminate on October 31,
2013. The second paragraph of Section 1, which grants Lessee an option to renew
for an additional term of five (5) years, is deleted.
3. Amendment to Sections 39 and 40 of Lease. Sections 39 and 40 of the
Lease are hereby deleted in their entirety and are replaced by the following new
Section 39:
39. Option to Purchase
Provided that this Lease shall be in full force and effect and that
Lessee shall not be in default hereunder beyond any applicable notice
and grace periods, Lessee shall have the option to purchase the Demised
Premises on the following terms and conditions:
a. If this option is not duly and timely exercised as provided for
herein, it shall cease, determine and expire and be of no further force
or effect.
b. This option shall be exercised exclusively by Lessee giving written
notice thereof to Lessor, by certified mail, return receipt requested,
between October 1, 2008 and October 31, 2013. A notice given prior to
October 1, 2008 or after October 31, 2013, shall not be deemed to be a
valid exercise of the option.
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c. If the option is validly exercised, the purchase price for
the Demised Premises shall be the fair market value of the
Demised Premises as of the date on which the option is
exercised. The fair market value shall be determined by three
independent real estate appraisers, at least two of whom shall
be members in good standing of the Appraisal Institute, to be
engaged and paid for by Lessee. If the three appraisers are
unable to agree as to the fair market value, the purchaser
price shall be the average of the determinations of the three
appraisers.
d. The purchase price shall be paid in full at closing, in
immediately available US funds. Payment of the purchase price
is guaranteed by the Guarantor.
e. Closing and transfer of title shall take place within
fifteen (15) days of the determination of the purchaser price
as set forth above.
f. Upon the exercise of the option, Lessor agrees to furnish
and deliver to Lessee's attorney, at least ten (10) days prior
to closing, fully guaranteed tax, title and U.S. District
Court Searches dated and redated subsequent hereto. Lessor
will pay for continuation of said searches to and including
the date of transfer of title.
g. At closing, Lessor shall tender to Lessee a bargain and
sale deed with lien covenant conveying a marketable title in
fee simple to the Demised Premises free and clear of all liens
and encumbrances, subject to the following:
(i) Any state of facts an accurate survey and inspection
of the premises would disclose.
(ii) Rights of Lessee and any other parties in possession
of the Demised Premises.
(iii) Covenants, easements and restrictions of record.
(iv) The reservations and right of reverter set forth in a
deed to Lessor recorded in the Monroe County Clerk's
Office in Liber 8996 of Deeds, page 532.
h. Lessor will pay the transfer tax and for filing the TP-584
form. Lessee shall pay to record the deed, the filing fee for
the equalization form, and for all other costs and expenses
related to the transfer of title to Lessee.
i. Subsequent to the date of the exercise of the option and
until the closing and transfer of title to Lessee, Lessee
shall continue to abide by all the terms of the Lease
including, without limitation, the payment of Rent, Additional
Rent and all other sums required to be paid hereunder. Rent
shall be pro-rated to the date of transfer of title.
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j. Should Lessee exercise this option and then fail to close,
Lessee shall
immediately vacate the Demised Premises, failing which Lessor
may commence summary proceedings for eviction against Lessee.
Lessee shall remain liable for Rent and other damages as
provided for in this Lease and for Lessor's reasonable
attorney's fees incurred in enforcing this section. Lessor may
also pursue any other rights and remedies as Lessor may have
against Lessee for failure to close.
k. The exercise of this option by Lessee shall be deemed to be
a waiver by Lessee of any objections based upon the condition
of the Demised Premises. Lessee agrees to accept the Demised
Premises in its then "AS IS" condition.
4. Superceding Effect; Other Terms the Same. The provisions of this
Agreement shall supercede and prevail over any inconsistent provisions of the
Lease. However, all terms and provisions of the Lease which are not inconsistent
herewith, shall remain the same.
5. Guaranty. For the purpose of continuing its guaranty of the Lease
as modified and amended herein, Guarantor has separately signed this Agreement
where indicated below.
6. Further Modification or Amendment. The Lease, as modified by this
Agreement, may not be further modified or amended except by a written agreement
signed by both Lessor and Lessee.
7. Effective Date. This Agreement shall be effective when it is signed
by Lessor, Lessee and Guarantor.
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FOR PURPOSES OF BINDING THEMSELVES TO THE FORGING, Lessor, Lessee and
Guarantor have signed this Agreement as of the date and year first set forth
above.
LESSOR: 2340 TOWNLINE ROAD CORPORATION
By: /s/ Robert David
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name: Robert David
title: President
LESSEE: TOTAL IDENTITY SYSTEMS CORP.
By: /s/ Philip C. Mistretta
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name: Philip C. Mistretta
title: President
GUARANTOR: TOTAL INDENTITY CORP.
By: /s/ Philip C. Mistretta
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name: Philip C. Mistretta
title: Chairman of the Board
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