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EXHIBIT 10.11
AMENDMENT OF LEASE
AMENDMENT OF LEASE dated this day of 17th day of October, 1994 by and
between the ESTATE OF X. XXXXX, having an office at 00 Xxxxx Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord") and F.P.G. INTERNATIONAL INC., having an
office at 00-00 Xxxxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the fee owner of certain premises located at 00-00
Xxxxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx (the "Building"); and
WHEREAS, Landlord and 00-00 Xxxxx Xxxxxx Xxxx Associates Limited
Partnership (the "Net Lessee") entered into a ground lease for portions of the
Building dated as of October 1, 1988 as amended by an agreement dated June 1,
1989 (collectively, the "Ground Lease"); and
WHEREAS, the Net Lessee and Tenant entered into a sublease dated August
9, 1990 (the "Lease") whereby the Net Lessee leased to Tenant certain premises
in-the Building, including the entire penthouse floor, the entire sixth floor
south and the entire seventh floor north (the "Existing Premises"); and
WHEREAS, pursuant to a Lease Surrender Agreement dated as of June 30,
1993, Landlord terminated the Ground Lease and released the Net Lessee from
further obligations thereunder and agreed to and has continued to recognize
Tenant as its direct Tenant under the Lease; and
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WHEREAS, Landlord and Tenant desire to modify and amend the terms of the
Lease to extend the term thereof, to add the entire fifth floor - south of the
Building (the "New Premises") to the Existing Premises and to make certain other
adjustments and modifications to the Lease.
NOW THEREFORE, in consideration of the terms, conditions and covenants
herein set forth the parties hereto agree as follows:
1. Landlord hereby leases to Tenant and Tenant hereby accepts from
Landlord the entire New Premises for a term of ten (l0) years commencing on the
date hereof (the "Commencement Date"). The New Premises and the Existing
Premises are sometimes hereinafter referred to, collectively, as the "Premises".
The term of the Lease shall be extended so that same shall be for a term of ten
(10) years commencing on the Commencement Date and expiring on the tenth (10th)
anniversary of the Commencement Date (the "Expiration Date"). All of the terms,
covenants and conditions of the Lease which refer to (the "Term") shall be
deemed to refer to a ten (10) year term commencing on the Commencement Date
hereof.
2. In addition to the Minimum Rent set forth in Article 39 B. of the
Lease, Tenant shall pay additional Minimum Rent for the New Premises as follows:
A. Minimum Rent:
(i) $161,000 per annum ($13,416.67 per month) during the period
commencing on the Commencement Date and continuing to
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and including the next day proceeding the second anniversary of the Commencement
Date, both dates inclusive;
(ii) $166,635 per annum ($13,886.25 per month) during the period
commencing on the second anniversary of the Commencement Date and continuing to
and including the day next proceeding the third anniversary of the Commencement
Date, both dates inclusive;
(iii) $172,467.23 per annum ($14,372.27 per month) during the period
commencing on the third anniversary of the Commencement Date and continuing to
and including the day next proceeding the fourth anniversary of the Commencement
Date, both dates inclusive;
(iv) $178,503.58 per annum ($14,875.30 per month) during the period
commencing on the fourth anniversary of the Commencement Date and continuing to
and including the day next proceeding the fifth anniversary of the Commencement
Date, both dates inclusive;
(v) $184,751.20 per annum ($15,395.93 per month) during the period
commencing on the fifth anniversary of the Commencement Date and continuing to
and including the day next proceeding the sixth anniversary of the Commencement
Date, both dates inclusive;
(vi) $191,217.50 per annum ($15,934.79 per month) during the period
commencing on the sixth anniversary of the Commencement Date and continuing to
and including the day next proceeding the seventh anniversary of the
Commencement Date, both dates inclusive;
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(vii) $197,910.11 per annum ($16,492.51 per month) during the period
commencing on the seventh anniversary of the Commencement Date and continuing to
and including the day next proceeding the eighth anniversary of the Commencement
Date, both dates inclusive;
(viii) $204,836.96 per annum ($17,069.75 per month) during the period
commencing on the eighth anniversary of the Commencement Date and continuing to
and including the day next proceeding the ninth anniversary of the Commencement
Date, both dates inclusive; and
(ix) $212,006.25 per annum ($17,667.19 per month) during the period
commencing on the ninth anniversary of the Commencement Date and continuing to
and including the day next proceeding the tenth anniversary of the Commencement
Date, both dates inclusive.
B. "Additional Rent" shall consist of all other sums of money as shall
become due and payable by Tenant to Landlord or to third parties hereunder (for
default in payment of which Landlord shall have the same remedies as a default
in payment of Minimum Rent). All Minimum Rent and Additional Rent shall be made
payable to: Estate of X. Xxxxx, 00 Xxxxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
or as may be otherwise provided in a written notice by Landlord to Tenant.
C. Notwithstanding anything herein to the contrary, provided that Tenant
is not in default of any covenant of this Lease, Tenant shall be entitled to a
credit against the Minimum Rent due for the New Premises in the amount of
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$93,916.69, to be credited in seven (7) equal monthly installments of $13,416.67
each as an offset against the first seven (7) installments of Minimum Rent due
for the New Premises under this Lease.
D. The parties hereto acknowledge that the Commencement Date of the
Lease for the Existing Premises was March 1, 1991 and that the Term has been
extended so that the Expiration Date shall be the tenth (10th) anniversary of
the Commencement of the Lease for the New Premises. Therefore, the Minimum Rent
set forth in Article 39 B. of the Lease for the Existing Premises shall be
modified to provide that commencing March 1, 2001, Minimum Rent for the Existing
Premises shall be as follows:
(i) $572,220.40 per annum ($47,685.03 per month) during the period from
March 1, 2001 to and including February 28, 2002;
(ii) $592,248.11 per annum ($49,354.01 per month) during the period from
March 1, 2002 to and including February 28, 2003;
(iii) $612,976.80 per annum ($51,081.40 per month) during the period
from March 1, 2003 to and including February 29, 2004;
(iv) $634,430.98 per annum ($52,869.25 per month) during the period from
March 1, 2004 to and including the day next preceding the Expiration Date of
this Lease as set forth in Paragraph 1 hereof.
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3. Tenant acknowledges that it is accepting delivery of the New
Premises, "as is" and that Landlord shall have no obligation or responsibility
to perform any work, installations or alterations necessary or desirable to make
the New Premises suitable for Tenant's use and occupancy except as may be set
forth on Exhibit "A" as "Landlord's Work". All of Tenant's Work to make the New
Premises suitable for Tenant's use and occupancy shall be performed in
accordance with the provisions of Article 40 of the Lease.
4. Tenant, at Tenant's sole cost and expense, shall obtain electricity
for the New Premises directly from the utility company furnishing electricity to
the Building. The cost of such service shall be paid by Tenant directly to such
utility company.
5. Article 42 A. of the Lease shall be modified only with respect to the
New Premises to provide that the Base Tax shall be the fiscal period of July 1,
1994 through June 30, 1995 and "Tenant's Share" for the New Premises shall be
7.3%. In all other respects the provisions of Article 42 shall be applicable to
the New Premises, utilizing the Base Tax and Tenant's Share as set forth in this
paragraph.
6. Landlord has advised Tenant and Tenant so acknowledges that there are
no existing mortgages or ground leases to which the Lease is subject and
subordinate. The Mortgage and Ground Lease referred to in Article 51C have been
satisfied, discharged and/or terminated so that the Building is no longer
encumbered by a mortgage or a ground lease.
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7. Article 53 of the Lease is hereby deleted and replaced with the
following Article 53:
"53. BROKER. Tenant covenants, warrants and represents that except for
Xx. Xxxxxx Xxxxx of First New York Realty Co., Inc., there were no
brokers instrumental in consummating this Lease and no conversations or
negotiations were had with any broker concerning the renting or leasing
of the New Premises. Tenant agrees to pay any commissions that may be
due to said broker by and pursuant to a separate writing. Tenant agrees
to indemnify, defend and hold and save Landlord harmless against any and
all liability from any claims of any other broker who claims to have
dealt with the Tenant, including, without limitation, the cost of
counsel fees and disbursements in connection with the renting of the New
Premises."
8. Article 73 B. of the Lease is hereby modified to provide that all
notices to Landlord shall be sent to the address set forth at the head of this
document with a copy to Tenzer, Greenblatt, Fallon & Xxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx Xxxxxx, Esq.
9. Landlord acknowledges that Tenant shall not be required to post any
security deposit for the New Premises.
10. Article 79 of the Lease is hereby deleted.
11. Article 83 I. of the Lease is hereby deleted.
12. Article 86 of the Lease is hereby modified to provide that the
certificate of occupancy for the New Premises (5th floor) is as shown on the
annexed certified certificate of occupancy for the Building.
13. Article 90 of the Lease is hereby deleted.
14. RIGHT OF FIRST REFUSAL. Notwithstanding anything to the contrary
contained in the Lease, Tenant shall have a right
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of first refusal to lease the fourth floor of the Building on the same terms,
covenants and conditions as may be set forth in any bona fide offer received by
Landlord from a third party, in writing, seeking to rent the fourth floor of the
Building for such purposes and uses as may be permitted by law (the "Offer").
Landlord, upon receipt of the Offer, shall promptly transmit same to Tenant who
shall have a period of 15 days to match the Offer and all of its terms,
covenants and conditions (the "Acceptance Period"). If Tenant agrees to meet the
terms of the Offer, it shall send to Landlord a written notice of acceptance of
the offer within the Acceptance Period. Failure of Tenant to accept the Offer
within the Acceptance Period or failure of Tenant to execute a lease containing
the same terms and conditions as set forth in the Offer (which lease shall be
deemed to be an amendment or an extension of the terms, covenants and conditions
of this Lease, as amended) shall be deemed a waiver by Tenant of its right of
first refusal and Landlord may lease the fourth floor premises upon all of the
terms set forth in the Offer or upon such other or additional terms not less
favorable to Landlord than those contained in the Offer within nine months
following the last day of the Acceptance Period. If, for any reason, Landlord
does not execute a written lease as provided herein within such nine month
period as provided herein, the right of first refusal set forth herein shall
again be applicable for the balance of the term of this Lease and the foregoing
procedure shall be repeated for any subsequent offers to lease the fourth floor
of the Building.
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15. Landlord shall make available to Tenant the non-exclusive use of a
passenger elevator in the Building which services the 5th floor, for use, during
the construction period only, for the performance by Tenant of Tenant's Work in
the New Premises; provided, however, that Tenant shall utilize the elevator to
transport suitable construction material only in a manner which will not damage
the elevator cab, controls, door, frames or cables and further provided Tenant
provides suitable coverings and pads for the floor, walls and doors of the
elevator cab and removes same and cleans any debris after each use thereof.
Tenant shall maintain and keep this elevator in good order and condition and
hereby indemnifies and hold Landlord harmless of and from any damage, cost or
liability which may be incurred by reason of Tenant's use of such elevator to
transport construction materials. From and after completion of Tenant's Work,
Tenant shall be entitled to use and shall use the elevator for passenger
purposes and light deliveries only.
16. Notwithstanding anything contained in this Lease to the contrary,
provided Tenant is not in default under this Lease as of the date of Tenant's
Termination Notice, Tenant shall have the right to terminate this Lease, as to
the New Premises (5th floor) only, at any time after the 3rd anniversary of this
Amendment of Lease (the "Early Termination Date") by written notice ("Tenant's
Termination Notice") delivered to Landlord six (6) months prior to such proposed
Early Termination Date. Tenant's Termination Notice shall be accompanied by
Tenant's certified or bank check in an amount equal to six (6) months rent
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with respect to the delivery of Tenant's Termination Notice as and for an early
termination fee. Upon timely delivery of Tenant's Termination Notice and the
aforementioned check and Tenant's continued compliance with the terms of this
Lease, including all payment of rent and additional rent to and including the
Early Termination Date, this Lease as to the New Premises (5th floor) only will
expire on the Early Termination Date as if such date were the Expiration Date
set forth herein and Tenant shall vacate the New Premises (5th floor) only on or
before the Early Termination Date leaving the same in the condition otherwise
required upon the expiration or sooner Termination of this Amendment of Lease.
17. Except as otherwise modified or amended herein, all of the terms,
covenants and conditions of the Lease are deemed to be ratified and approved as
if set forth at length herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
LANDLORD:
ESTATE OF X. XXXXX
By: /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx, Administrator
TENANT:
F.P.G. INTERNATIONAL, INC.
By: /s/ XXXXXXX XXXXXXX
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EXHIBIT A
LANDLORD'S WORK
A. Landlord agrees to furnish and install in accordance with all
applicable building codes the following Building Standard Work:
All Landlord's Work shall be performed in connection with Tenant's
occupancy of the fifth floor of the Building (the "New Premises") and shall be
performed expeditiously and completed prior to the date Tenant takes occupancy
of the New Premises for purposes of conducting its business therein Landlord's
work will not materially interfere with Tenant's performance of Tenant's Work.
Notwithstanding the aforesaid, items A, B, C and E will not be commenced
until Tenant has authorized Landlord to do so in writing; such work will be
completed by Landlord within 21 business days of Tenant's notification.
A. [Deleted].
B. That portion of the fifth floor slab shown on the plans to be
provided shall be leveled so that the fifth floor slab meets all applicable code
and governmental requirements.
C. That portion of the ceiling as shown on the plans to be provided
shall be fire proofed so that the ceiling meets all code and governmental
requirements.
D. Existing air conditioning system on the fifth floor of the Building
shall be delivered to Tenant in good working condition. Landlord agrees to
provide one year warranty on performance of such units.
E. Landlord will install four thermostat controls for the heating
servicing the fifth floor of the Building at locations designated by Tenant and
noted on the plans to be provided.
F. Existing fifth floor bathrooms will be renovated, where required, to
comply with all ADA requirements and shall be delivered to Tenant in a finished
condition.
G. All exterior windows in the New Premises are to be placed in good
working condition, free of water and air leakage.
H. Landlord shall install a "lock-out" device in at least one elevator
servicing the 5th floor.
