Exhibit 4.6
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE, is made and executed this 30 day of
September, 1993, by and between UNILENS CORP., USA, a Delaware corporation,
hereinafter referred to as "Lessee" and XX. XXXXX X. XXXXXXXX and XXX. XXXXXX
XXXXXXXX, hereinafter collectively referred to as "Lessor".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxxx Dairy Limited, a Florida limited partnership, as lessor,
("Xxxxx Dairy") and University Optical Products Co., a Delaware corporation, as
lessee ("University Optical"), entered into that certain lease dated February
25, 1983, and recorded in Official Records Book 5490, Page 1537, of the Public
Records of Pinellas County, Florida (the "Lease"); and
WHEREAS, Xxxxx Dairy has conveyed its interest in the property to Lessor
and University Optical has assigned its interest in the Lease to Lessee by
assignment of lease dated February 28, 1989, effective as of January 31, 1989,
and recorded in Official Records Book 5973, Page 2368, of the Public Records of
Pinellas County, Florida; and
WHEREAS, Lessor and Lessee entered into that certain Amendment to Lease
dated February 22, 1991; and
WHEREAS, Lessee acknowledges and agrees that it defaulted under the terms
and conditions of the Lease; and
WHEREAS, Lessee acknowledges and agrees that the rental for the use of the
premises was not paid in full since December, 1992; and
WHEREAS, Lessee acknowledges and agrees that the security deposit in the
amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00) plus accrued
interest thereon (the "Security Deposit") held by Lessor pursuant to Paragraph 9
of the Lease was applied towards the monthly rentals due under the terms and
conditions of the Lease; and
WHEREAS, Lessee acknowledges and agrees that after applying the Security
Deposit towards the monthly rentals, the rental payment past due as of August
31, 1993, shall be Forty-Two Thousand Five Hundred Ninety Seven+ 04/100 Dollars
($ 42,597.04); and
WHEREAS, Lessor and Lessee reached an agreement as to the curing of the
rental payments past due which constituted prior default under the Lease, and as
to certain modifications of the terms and conditions of the Lease as related to
the rental payments, and therefore desire to make additional amendments to said
Lease; and
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, Lessor and Lessee agree to amend the
Lease as follows:
1. Lessee hereby covenants and agrees that starting April 1, 1993, it
shall pay in cash to Lessor rental for the use of the premises in the amount of
Sixteen Thousand and No/100 Dollars ($16,000.00) monthly instead of $20,359.00
as required under the terms of the Lease. Such payments shall be made on the
first day of each month and shall continue through and including, June 1, 1994.
2. Lessor and Lessee acknowledge and agree that on October 1, 1993, the
monthly rental payments due under the terms of the Lease are to be increased by
the increases in the Consumer Price Index for all urban consumers issued by the
United States Bureau of Labor Statistics and the United States Department of
Labor. Lessee agrees that it shall try in good faith to increase the monthly
cash payments starting October, 1993, by the increases in said Consumer Price
Index.
3. Lessee hereby covenants and agrees that starting July 1, 1994, through
and including December 1, 1994, the monthly cash rental payments shall be
Seventeen Thousand and No/100 Dollars ($17,000.00).
4. Lessee hereby covenants and agrees that starting January 1, 1995,
through and including September 1, 1998, the monthly rent payments shall be made
at the full Lease rate.
5. Lessee hereby covenants and agrees that any and all rent shortage that
shall be accumulated for the period December, 1992, through and including
December, 1994, shall bear the interest rate of six percent simple interest (6%)
annually, that such rental shortage shall be repaid prorated over the remaining
term of the Lease, that is starting January 1, 1995, through and including
September 30, 1998, and shall be evidenced by a Promissory Note (Exhibit "A")
duly executed by Lessee, simultaneously with the execution of this Second
Amendment.
6. Lessor hereby covenants and agrees that for as long as there is no
default on the part of Lessee under the terms and conditions of the Lease as
amended, Lessee shall not be required to restore the Security Deposit in the
amount of $25,000.00.
7. The validity and enforceability of this Second Amendment shall not be
impaired or affected by any of the following: (a) any failure or omission to
enforce any right, power, remedy, or indulgence, with respect to the Lease or
any amendment to the Lease, or any part thereof or any agreement related thereto
by Lessor; and (b) any waiver of any right, power, remedy, or any default with
respect to the Lease or any amendment to the Lease or any part thereof by
Lessor.
8. Lessee acknowledges and agrees that Lessor may take or omit to take
any action, exercise or fail to exercise any right to remedy, and Lessee hereby
irrevocably waives any
(2)
defense, claim or action relating thereto and hereby authorizes Lessor to do any
or all of the foregoing.
9. Lessee represents and warrants that its execution and performance of
this Second Amendment has been duly authorized by all necessary action, will not
violate any of the terms or conditions of any agreement, indenture, or
instrument to which it is a party or result in the imposition of any lien,
charges or encumbrance upon any of its property, and that this Second Amendment
is a legal, valid and binding obligation of Lessee, enforceable in accordance
with its terms.
10. Lessee shall pay all costs, fees and expenses, including reasonable
attorney's fees actually incurred, incurred hereafter by Lessor in collecting or
enforcing Lessee's obligations under the Lease as amended.
11. This Second Amendment shall (a) bind Lessor, Lessee and their
successors and assigns; and (b) inure to the benefit of Lessor and Lessee and
their successors and assigns.
12. Both Lessor and Lessee have participated in the negotiation and
preparation of this Second Amendment; and, accordingly, this Second Amendment
shall not be more strictly construed against either of the parties.
13. Except as modified by the above-referenced amendments, the Lease shall
remain in full force and effect.
14. Lessor acknowledges and agrees that upon complete execution and
delivery of this Second Amendment, Lessee shall not be in default of the Lease
for failure to pay or perform any of its obligations under the Lease prior to
the date of this Second Amendment.
[Signatures on following page.]
(3)
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Lease to be duly executed the day and year first above written.
WITNESSES: LESSOR:
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx Xxxxxx XX. XXXXX X. XXXXXXXX
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/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxx
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Name: Xxxx Xxxxxxx XXXXXX XXXXXXXX
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/s/ Xxxxxxx Xxxxxx - Xxxx
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Name: XXXXXXX XXXXXX - XXXX
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/s/ Xxxxxx Xxxx
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Name: XXXXXX XXXX
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LESSEE:
UNILENS CORP., USA
a Delaware corporation
/s/ Xxxxx X. Eye /s/ X. X. Xxxxxx
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Name: Xxxxx X. Eye Title: President
-------------------------------- ---------------------------------
Name: X. X. Xxxxxx
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/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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CONSENT
The undersigned, Unilens Vision, Inc. (formerly Unilens Optical Corp.), a
Canadian corporation, hereby consents to the Second Amendment to Lease
dated________________________, 1993, by and between Unilens Corp., USA as Lessee
and Xx. Xxxxx X. Xxxxxxxx and Xxx. Xxxxxx Xxxxxxxx as Lessor, and hereby
confirms the continuation of its guarantee to Xx. Xxxxx X. Xxxxxxxx and Xxx.
Xxxxxx Xxxxxxxx, as Lessor, the payment and performance by Unilens Corp., USA of
the terms and conditions of the Lease, as amended by said Second Amendment to
Lease.
UNILENS VISION, INC. (formerly Unilens Optical Corp.),
a Canadian corporation
/s/ X. X. Xxxxxx /s/ Xxx X. Xxxxxx
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Name: X. X. Xxxxxx Title: PRESIDENT
-------------------------------- ----------------------------------
/s/
--------------------------------------
Name:
--------------------------------
(4)
The foregoing instrument was acknowledged before me this 30th day of SEPTEMBER,
1993, by XXX X. XXXXXX the PRESIDENT of Unilens Vision, Inc., a Canadian
corporation, on behalf of the corporation.
/s/ Xxxxx X. XxXxx
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(NOTARIAL SEAL) Notary Public
Name: /s/ Xxxxx X. XxXxx
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My Commission Expires: 1994
(5)
