THIRD MODIFICATION AND EXTENSION OF LEASE DATED AS OF THE 17th DAY OF FEBRUARY,
2000 TO THE LEASE BETWEEN 400 KELBY ASSOCIATES, AS LANDLORD AND EMPIRE
RESOURCES, INC., AS TENANT FOR LEASE OF PREMISES LOCATED ON THE TENTH (10TH)
FLOOR IN THE BUILDING AT 400 KELBY STREET, FORT XXX, NEW JERSEY
WHEREAS, the parties hereto executed a Lease dated March 30, 1993,
between 400 Kelby Associates, a New Jersey limited partnership with offices at
000-00 Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxx Xxxx as Landlord and Empire
Resources, Inc., as Tenant, for premises on the tenth (10th) floor, Suite B, at
Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx, (hereinafter the "Lease");
WHEREAS, the parties hereto executed a Supplementary Agreement on or
about August 6, 1993 setting a Commencement Date of the Lease term of August 1,
1993 and an Expiration Date of July 31, 1998;
WHEREAS, the parties hereto executed a First Modification of Lease on or
about June 29, 1993 whereby the parties modified the provisions of the Original
Lease relating to the parking spaces to be made available to Tenant pursuant to
the Original Lease, (the "First Modification");
WHEREAS, the parties hereto executed a Second Modification and Extension
of Lease on or about May 1, 1995 whereby the parties modified the provisions of
the Lease to add additional space known as Suite C, on the tenth (10th) floor,
of the Building to the Demised Premises, and to the extend the term of the
Lease, (the "Second Modification");
WHEREAS, the parties hereto executed a Supplementary Agreement on or
about August 1, 1995 setting an Expansion Commencement Date of August 1, 1995
and an Expiration Date of March 31, 2000;
AND WHEREAS, the parties hereto desire to modify the Lease as modified
by the First Modification and Second Modification to among other things, extend
the term of the Lease;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions contained in the Lease, Landlord and Tenant hereby
agree as follows:
1. All capitalized terms herein shall have the same meanings as
contained in the Lease.
2. Except as amended herein, the terms of the Lease shall remain in
full force and effect.
3. In the event of any inconsistencies between the terms of this Third
Modification and Extension of Lease (the "Third Modification") and the Lease,
the First Modification or the Second Modification, then the terms of this Third
Modification shall govern.
4. Article 1 shall be amended to reflect the following changes:
(a) Section 1.03(a) shall be amended so that the term of the Lease
shall be extended and the Expiration Date as defined in Section 1.03(a) shall be
amended to reflect an Expiration Date of March 31, 2005;
(b) Section 1.03(b) shall be deleted in its entirety; and
(c) Section 1.04(a) shall be amended so that effective as of
April 1, 2000 the fixed rent shall be $215,881.00 per annum ($17,990.08 per
month) through the Expiration Date.
5. Section 3.01 and Section 3.02 shall be deleted in their entirety and
replaced with the following language:
3.01 Neither Landlord or Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Demised Premises, or the Land except as expressly set forth
herein. Tenant has inspected the Building and the Demised Premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the Demised Premises by Tenant
shall be conclusive evidence that the said Demised Premises and the Building
were in good and satisfactory condition at the time such possession was so
taken, except as to latent defects. Notwithstanding the foregoing, Landlord
agrees to perform and provide, at Landlord's sole cost and expense, the
following work in and to the Demised Premises: paint; install new building
standard carpet; repair or replace, as needed, existing cabinets in kitchen and
add ten (10) lineal feet of cabinetry; supply and install full size
refrigerator, sink, dishwasher, microwave oven and an additional light fixture
over the file cabinet; and install supplemental air conditioning equipment to
service three (3) adjacent offices.
6. Article 4 shall only apply for purposes of Article 39.
7. Article 5 shall be amended to reflect the following changes:
(a) Tenant's Base Tax Year as defined in Section 5.01(b) shall mean
the Tax Year commencing January 1, 2000 and ending December 31, 2000;
(b) Tenant's Base Operating Expenses as defined in Section
5.07(c) shall mean the Operating Expenses for the calendar year 2000;
(c) Section 5.07(g) shall be deleted and replaced with the
following language:
(g) "Tenant's Initial Projected Share of Operating Expense
Increase" shall mean one-twelfth (1/12th) of the product of (i) Tenant's
Operational Proportionate Share multiplied by (ii) the projected increase in
Operating Expenses for the
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calendar year 2001, as reasonably estimated by Landlord, above the Initial
Operating Expenses;
(d) As of April 1, 2000 all references to "Commencement Date" in
Section 5.07 only shall mean April 1, 2000; and
(e) Section 5.12 shall be deleted in its entirety.
8. Article 6 shall be amended as follows:
(a) The security deposit in Section 6.01 shall be amended to
reflect security of $17,990.08; and
(b) Section 6.02 shall be deleted in its entirety.
9. Article 7 shall be amended as follows:
(a) Section 7.01 shall be amended to include the following
language:
Tenant acknowledges that the current lender is the Metropolitan
Life Insurance Company with an address of 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Senior Vice President Real Estate Investments and
Attention: Assistant Vice President Loan Administrator ("MetLife") and agrees
that this shall constitute written notice of such holder of a superior mortgage
as referred to in Section 7.02.
(b) The following Sections 7.03(d) and (e) shall be included and
made a part of the Lease:
(d) be bound by any obligation to perform any work for, or make
any payment to, Tenant which was required to be performed or made prior to the
time such successor landlord succeeded to any prior Landlord's interest; and
(e) be accountable for any monies deposited with any prior Landlord
(including security deposits), except to the extent such monies are actually
received by such successor landlord.
10. The following Section 18.07 (a), (b), (c) and (d) shall be included
and made a part of the Lease:
18.07 (a) Tenant shall require its personnel to park their
vehicles only in the parking spaces designated by Landlord. Tenant, its
personnel and visitors shall not at any time park any trucks or delivery
vehicles in any of the parking areas.
(b) All parking spaces, roadways and driveways used by
Tenant, its
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personnel and visitors will be at their own risk, and Landlord shall
not be liable for any injury to person or property, or for loss or damage to any
vehicle or its contents, resulting from theft, collision, vandalism or any other
cause whatsoever. Landlord shall have no obligation whatsoever to provide a
guard or any other personnel or device to patrol, monitor, guard or secure any
parking areas. Notwithstanding the foregoing, Landlord currently provides locked
gates after business hours and on weekends in the parking area and video
monitoring of the parking area. If Landlord does so provide, it shall be solely
for Landlord's convenience and Landlord shall in no way whatsoever be liable for
any acts or omissions of personnel or device in failing to prevent any such
theft, vandalism, or loss or damage by other cause.
(c) No storage or overnight parking of vehicles shall be
permitted unless previously approved by Landlord in writing, and except in those
areas, if any, designated by Landlord.
(d) Landlord reserves the right from time to time to: (i)
change the area, location and arrangement of parking areas, and parking spaces;
(ii) restrict parking by tenants, their officers, agents, employees, customers
and invitees to designated areas; (iii) discontinue, restrict or temporarily
suspend use of all, or any portion of, the parking areas for such period of time
as may be necessary in Landlord's sole discretion, to perform maintenance or
repairs; (iv) limit the parking of vans, limousines and other large vehicles to
specified areas; (v) exclude any and all vehicles other than as permitted in
Section 18.07(c); and (vi) institute control mechanisms and systems in order to
regulate the use of the common parking area.
11. Section 16.03(ii)(a) shall be amended to reflect a rent reduction
of $10,977.00 should Landlord exercise its option to discontinue providing
electrical service to the Tenant.
12. Article 31 shall be amended as follows with respect to this Third
Modification to Lease solely:
ARTICLE 31
Broker
31.01 Tenant covenants, warrants and represents that there was no
broker or finder except C.B. Xxxxxxx Xxxxx, Inc. and Xxxxxxx & Wakefield of New
Jersey, Inc. in consummating this Third Modification to Lease and that no
conversations or negotiations were had with any broker or finder except C.B.
Xxxxxxx Xxxxx, Inc. and Xxxxxxx & Wakefield of New Jersey, Inc. concerning the
Demised Premises. Tenant agrees to hold Landlord harmless against any claims for
a brokerage, finder or other commission or fee arising out of any claim by any
broker or finder except C.B. Xxxxxxx Xxxxx, Inc. and Xxxxxxx & Wakefield of New
Jersey, Inc. Landlord agrees to hold Tenant harmless against any claims for a
brokerage, finder or other commission or fee arising out of any claim by C.B.
Xxxxxxx Xxxxx, Inc. and Xxxxxxx & Wakefield of New Jersey, Inc.
13. Article 39 shall be amended effective April 1, 2000 as follows:
(a) Section 39.01(b) shall be deleted in its entirety and
replaced with the following language:
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The Relocation Notice shall include a floor plan of the space which
Tenant shall lease from Landlord in substitution of the Demised
Premises (hereinafter referred to as the "Relocated Space"), and
shall set forth the rentable square foot area thereof (hereinafter
referred to as the "New Area") which shall not be less than 7,300
rentable square feet nor more than 7,700 rentable square feet.
(b) Section 39.01(c)(ii) shall be amended to replace $22.50 with
$29.50;
(c) Section 39.01(c)(iv) shall be amended to replace $1.25 with
$1.50.
14. Exhibit A and Exhibit D as annexed to the Second Modification shall
each be deleted in their entirety.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals on the date and year first written above.
400 KELBY ASSOCIATES
By: Lynwood Construction Co., Inc., general partner
By: /s/ Xxxx-Xxxxxx Vaganay
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Xxxx-Xxxxxx Vaganay, Vice President
EMPIRE RESOURCES, INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: President
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