EXHIBIT 10.13.1
SECOND MODIFICATION AND EXTENSION OF LEASE AGREEMENT
This Second Modification and Extension of Lease Agreement
("Agreement"), made this 22 day of April, 2002, by and between Metroplex
Associates, a New Jersey partnership, having an address c/o of Atlantic Realty
Development Corp., 00 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Landlord"), and Hanover Capital Mortgage Corp., a Missouri corporation, having
an address at Metroplex Corporate Center I, 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx
Xxxxxx 00000 (the "Tenant").
W I T N E S S E T H:
WHEREAS, by lease dated March 9, 1994 (the "Lease"), Landlord
leased to Tenant and Tenant hired from Landlord certain premises (the
"Premises") constituting a portion of the third floor of the building (the
"Building") known as Metroplex Corporate Center I, 000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxx Xxxxxx 00000; and
WHEREAS, by document entitled "First Modification and
Extension of Lease Agreement", dated February 28, 1997 (the "First
Modification"), the term of the Lease was extended until 6:00 p.m. on June 30,
2002; and
WHEREAS, Landlord and Tenant desire to further modify and
extend the Lease as hereinafter provided;
NOW, THEREFORE, for and in consideration of the above
premises, the mutual covenants hereinafter contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Term. (a) Landlord and Tenant agree to extend the
term of the Lease for a period of two (2) years and ten (10) months, commencing
6:00 p.m. on June 30, 2002 and expiring at 6:00 p.m. on April 30, 2005 (the
"Second Renewal Period").
(b) Tenant shall have, and is hereby granted, one (1)
additional option to further renew and extend the term of this Lease from the
date upon which it would otherwise expire, for one (1) additional renewal period
which shall be for a period of five (5) years (the "Third Renewal Period"). The
Third Renewal Period shall follow consecutively upon the expiration of the
Second Renewal Period as hereinabove provided and such Third Renewal Period
shall, upon commencement thereof, be deemed included in references to "the term
of this Lease" and "the full term of this Lease". Tenant's said option with
respect to the Third Renewal Period shall be exercised by Tenant giving written
notice to Landlord of Tenant's exercise of same not later than nine (9) months
prior to the expiration date of the Second Renewal Period. Time is of the
essence with respect to such notice, and failure of Tenant to give such notice
at least nine (9) months prior to the expiration of the Second Renewal Period
shall constitute a binding and conclusive waiver of Tenant's option with respect
to such Third Renewal Period. The option to renew and extend the term of this
Lease as hereinabove provided shall not be deemed validly exercised unless
Tenant shall not be in default at the time of either the exercise of such
renewal option or the commencement of the Third Renewal Period. If Tenant elects
to exercise said renewal option, the full term of this Lease shall be
automatically extended for the Third Renewal Period without the need for the
execution of an extension or renewal lease. The Third Renewal Period shall be on
all of the same terms and conditions as are in effect hereunder immediately
preceding the commencement date of the Third Renewal Period, except that the
Fixed Rent during the Third Renewal Period shall be as provided in subparagraph
(b) of Paragraph 2 hereinbelow. All provisions for the payment of additional
rent shall continue to apply without limitation except as otherwise provided
herein. Tenant shall have no further right or option to renew the term of this
Lease after the expiration of the Third Renewal Period.
2. Fixed Rent. (a) Tenant covenants to pay to Landlord
for and during each lease year of the Second Renewal Period, Fixed Rent at the
rate of One Hundred Thousand Six Hundred Thirty Six and 50/100 ($100,636.50)
Dollars per annum ($8,386.38 per month).
(b) If Tenant exercises its option to extend the term of
the Lease for the Third Renewal Period, the Fixed Rent for each lease year of
the Third Renewal Period shall be the greater of: (i) the annual amount
determined by multiplying the gross rentable area of the Premises by $17.25 per
square foot, or (ii) the then existing fair market rental value of the Premises
determined in accordance with the provisions of subparagraph (c) of this
Paragraph 2.
(c) The fair market rental value of the Premises, as
contemplated by subparagraph (b) of this Paragraph 2, shall be determined as
follows: Promptly after receipt by Landlord of Tenant's notice of Tenant's
exercise of its option to renew and extend the term of this Lease pursuant to
the provisions of subparagraph (b) of Paragraph 1 hereinabove, Landlord shall
notify Tenant of Landlord's determination of the fair market rental value of the
Premises as of the commencement date of the Third Renewal Period. Tenant shall
have the right, by notice to Landlord given within twenty (20) days after
receiving Landlord's notice of the fair market rental value to object to the
amount thereof. Failure by Tenant to give notice of objection within such twenty
(20) day period (time being of the essence) shall constitute an acceptance by
Tenant of the fair market rental value as determined by Landlord. If Tenant
shall so object, Tenant shall, at its cost and expense, engage an appraiser who
is a member of the appraisal institute and who has at least five (5) years
experience in the appraisal of office buildings in the Middlesex County, New
Jersey area, to determine the fair market rental value of the Premises as of the
commencement of the Third Renewal Period. Such appraiser shall render his or her
report to Landlord and Tenant not later than thirty (30) days after the date of
Tenant's notice of objection to the fair market rental value as determined by
Landlord. If such appraiser shall fail to render such report within such thirty
(30) day period (time being of the essence), Tenant's objection to the fair
market rental value as determined by Landlord shall conclusively be deemed to
have been waived and the rental for the Third Renewal Period shall be as
determined by Landlord. If the appraiser shall render his or her report within
such thirty (30) day period and the fair market rental value so determined shall
not be acceptable to Landlord, Landlord shall have the right to so notify
Tenant, and Landlord shall then, at its cost and expense, engage an appraiser
(having the same qualifications as those set forth above) to determine the fair
market rental value of the Premises. In the event that the two appraisers shall
determine a fair market rental value which shall not differ by more than ten
(10%) percent, the fair market rental value shall be deemed to be the average of
the two appraisals. If the two appraisals shall differ by more than such ten
(10%) percent amount, then the two appraisers shall select a third appraiser
with similar qualifications, with Landlord and Tenant each to pay one-half of
the cost of such third appraiser, and the fair market rental value of the
Premises as determined by such third appraiser shall be binding and conclusive
upon Landlord and Tenant. The appraiser for Landlord and the appraiser for
Tenant shall select such third appraiser within ten (10) days after Landlord
notifies Tenant that such third appraisal is required. The said third appraiser
shall be instructed to render his or her report to Landlord and Tenant not later
than thirty (30) days after the date of his or her engagement.
3. Additional Rent. All provisions for the payment of
additional rent set forth in the Lease, including, without limitation, all
provisions pertaining to the payment of "Operating Costs" and "taxes" (as said
terms are defined in Article 18 of the Lease) shall continue to apply without
modification.
4. Brokerage Commission. Tenant warrants and represents
that it has not dealt or negotiated with any real estate broker or salesman in
connection with this Agreement other than Newmark JGT of New Jersey, LLC (the
"Broker") or representatives thereof. Tenant shall and hereby does indemnify and
hold Landlord harmless from and against any real estate commissions, fees,
charges or the like, or claims therefor, including any and all costs incurred in
connection therewith, arising out of the within transaction payable to any party
other than the Broker except to the extent any such claim or commission is based
solely upon Landlord's acts. Landlord shall pay any commission due to the Broker
pursuant to a separate agreement.
5. Landlord's Work. Landlord shall, at its cost and
expense, perform the following work at the Premises ("Landlord's Work"): (i)
relocate one (1) thermostat from the adjoining premises to the Premises, (ii)
paint the interior walls of the Premises using building
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standard materials. Tenant shall select the wall and trim paint colors and shall
be solely responsible for moving all furniture, equipment and other personal
property so as to enable Landlord to so paint the Premises. It is expressly
understood and agreed to by and between the parties hereto that, except for
Landlord's Work, Tenant shall continue in possession of the Premises in its
present condition "as is", and Landlord shall not be obligated to perform any
additional work of any type or nature whatsoever in connection with this
Agreement. Tenant shall, at its cost and expense, obtain any governmental
permits and approvals which may be required for its continued or occupancy of
the Premises.
6. Right of First Notification. The Right of First
Notification, set forth in the First Modification, shall continue to apply
during the Second Renewal Period.
7. Defined Terms. The terms used in this Agreement and
not defined herein shall have the respective meanings indicated in the Lease,
unless the context requires otherwise.
8. No Other Changes. The intent of this Agreement is
only to modify and amend those provisions of the Lease as herein specified.
Except as herein specifically modified, changed and amended, all of the terms
and conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Second Modification and Extension of Lease as of the day and year first above
written.
WITNESS: METROPLEX ASSOCIATES
(Landlord)
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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Xxxxx Xxxxxxx, Partner
ATTEST: HANOVER CAPITAL MORTGAGE CORP.
(Tenant)
By: /s/ [ILLEGIBLE]
By:________________________________ ----------------------------
[ILLEGIBLE]
Name:______________________________
Title:_____________________________
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