EXHIBIT 10.3(b)
FIRST LEASE AMENDMENT
As of February 27th, 1998
Reference is made to the Agreement of Lease dated April 7, 1997 between 125
Bethpage Associates, as Landlord, and Toymax Inc., as Tenant, with respect to
Premises more particularly described therein within the real property known as
000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx (the "Lease").
A. The words and terms used herein shall have the meaning ascribed to
them in the Lease, unless the context in which any such word or term is used
requires a different construction.
B. Effective on March 1, 1998 (the "Effective Date") the Lease is amended
as follows:
1. Section 2.01(C) of the Lease is amended so that the
Area of the Premises as defined in Section 2.01(C) of the Lease shall be
increased to 27,036 rentable square feet.
2. Section 2.01(n) of the Lease is amended so that the term
"Premises" shall mean the space depicted in Exhibit "A-1" attached hereto
and made a part hereof (the "Added Space") as well as the space depicted in
Exhibit "D" annexed to the Lease and made a part thereof (the "Original
Premises").
3. Proportionate Share as used in Section 2.01(p) of the Lease shall
be 67.6%.
4. Section 3.01 of the Lease is amended so that Tenant shall pay to
the Landlord Net Annual Rent at an annual rate as follows:
Lease Year Net Annual Rent
---------- ---------------
1 $425,817.00
2 $438,591.51
3 $451,749.25
4 $465,301.72
5 $479,260.79
6 $493,638.59
7 $445,941.27
C. Tenant shall accept the Added Space "as is" on the Effective Date, and
Landlord shall not be required to perform any work, render any service or
furnish or install any materials, fixtures or equipment to the Project, the
Original Premises or the Added Space.
D. Upon execution of the Amendment, Tenant shall deposit with Landlord as
security for the faithful performance and observance by Tenant of the terms,
provisions, covenants, and conditions of the Lease as amended by this Amendment,
and any further modification, extension, or renewal thereof, the sum of $20,000
(such security deposit shall hereafter be called the "Security"). Landlord may,
at its sole option, retain use or apply the whole or any part of the Security to
the extent required for payment of any (i) Net Annual Rent, (ii) Additional
Rent, (iii) other sums as to which Tenant is obligated to pay under this Lease,
(iv) sums that Landlord may expend or may be required to expend by reason of a
default under the Lease, (v) loss or damage that Landlord may suffer by reason
of a default under the Lease, including, without limitation, any damages
incurred by Landlord or deficiency resulting from the reletting of the Premises,
whether such damages or deficiency accrues before or after summary proceedings
or other re-entry by Landlord, or (vi) costs incurred by Landlord in connection
with the cleaning or repair of the Premises upon expiration or earlier
termination of this Lease.
In no event shall Landlord be obligated to apply the Security; and
Landlord's right to bring an action or special proceeding to recover damages or
otherwise to obtain possession of the Premises before or after Landlord's
declaration of the termination of this Lease for nonpayment of rent or for any
other reason shall not be affected by reason of the fact that Landlord holds the
Security. The Security, except as specified in the preceding paragraph, will
not be a limitation of Landlord's damages or other rights and remedies available
under this Lease, or at law or equity; nor shall the Security be (a) a payment
of liquidated damages, or (b) an advance payment of any Rental. If Landlord
uses, applies, or retains all or any portion of the Security, Tenant will
restore the Security to its original amount within five (5) days after written
demand from Landlord. It will constitute an Event of Default if Tenant fails to
timely comply with this Paragraph.
Landlord shall keep the Security in an interest-bearing account. Landlord
shall pay to Tenant, if and when the Security is returned to Tenant, all
interest earned and payable on the Security less a one (1%) percent annual
administrative charge. If, upon expiration of the Term of the Lease, Tenant
shall not be in default under the terms of the Lease, and any modification,
extension, or renewal thereof, any part of the Security not used, applied, or
retained by Landlord shall be returned to Tenant within sixty (60) days after
Tenant has discharged all of its obligations under this Lease, and any
modification, extension, or renewal thereof, but no earlier than the end of the
Term (or the sooner termination of this Lease). However, if Landlord, in its
sole discretion, has sufficient evidence that the Security has been assigned to
an assignee of this Lease in accordance with the terms hereof, Landlord will
return the Security to the assignee and Landlord shall thereupon be released by
Tenant from all liability for the return of the Security to Tenant. In the
event of a sale of the Building or the Project or any part thereof, of which the
Premises forms a part (including to a mortgagee upon foreclosure of its
mortgage), or a lease of the Building or the Project, Landlord shall have the
right to transfer the Security to the purchaser or lessee, as the case may be,
and Landlord shall thereupon be released by Tenant from all liability for the
return of the Security; and Tenant agrees to look solely to the purchaser or
lessee for the return of the Security. The Security shall not be mortgaged,
assigned, or encumbered by Tenant, and neither Landlord nor its successors or
assigns shall be bound by any such mortgage, assignment, or encumbrance. The
acceptance by Landlord of the Security submitted by Tenant shall not render this
Lease effective unless and until Landlord shall have executed and delivered to
Tenant a fully executed copy of this Lease.
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E. Tenant covenants, represents and warrants that Tenant has had no
dealings or negotiations with any broker, finder or with respect to this
Amendment or the negotiation thereof. Based thereon, Landlord agrees to hold
harmless and indemnify Tenant from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges claimed by any broker, finder or agent with respect to
this Amendment or the negotiation thereof except to the extent that the same
arises out of Tenant's acts or omissions. Tenant agrees to hold harmless and
indemnify Landlord from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or
charges claimed by any broker, finder or agent with respect to this Amendment or
the negotiation thereof, based in any part upon Tenant's breach of the
provisions contained in the first sentence of this Section.
F. Each of the Landlord and Tenant acknowledges and confirms to the other
that the Lease is in full force and effect in accordance with its terms and is
unmodified except as herein provided.
LANDLORD:
125 Bethpage Associates
By:
--------------------------------
Xxxxxx Xxxxxxxxxx,
Its General Partner
TENANT:
Toymax Inc.
By:
--------------------------------
Name:
Title: President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the 4th day of March, 1998, before me personally came Xxxxxx Xxxxxxxxxx,
to me know, who, being by me duly sworn, did depose and say that he is the sole
General Partner of 125 Bethpage Associates, a New York limited partnership,
described in and which executed the foregoing instrument; which executed the
foregoing instrument; that he had authority to sign the same as the act and deed
of 125 Bethpage Associates.
S/
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XXXXXXX X. XXXXXX
Notary Public, State of New York
No. 4850695
Qualified in Nassau County
Commission Expires January 20, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On the 2nd day of March, 1998, before me personally came Xxxxxx Xxxxxxxxxx,
to me know, who, being by me duly sworn, did depose and say that he resides at
Laurel Hollow, NY; that he is the President of Toymax Inc., the corporation
described in and which executed the foregoing document; and that he signed his
name thereto by authority of the Board of Directors of said corporation.
S/
---------------------------
XXXXXXX X. XXXXX
Notary Public, State of New York
No. 4998530, Qual. Suffolk Co.
Qualified in Nassau County
Commission Expires June 29, 1998
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