Exhibt 99.02
ASSIGNMENT, ASSUMPTION AND AMENDMENT OF LEASE
AGREEMENT, dated as of this 1st day of October, 2004, between DP 16
LLC ("Landlord"), DEL GLOBAL TECHNOLOGIES CORP. ("Assignor"), and XXXXXXXX HIGH
VOLTAGE ELECTRONICS CORPORATION ("Assignee").
WITNESSETH:
WHEREAS, Landlord and Assignor are parties to a certain Lease
Agreement ("Lease") dated April 17, 1992, as amended by the amendments set forth
in Article Fifth hereof, for the premises ("Premises") in the building
("Building") located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx and more
particularly set forth in Exhibit A to the Lease, a copy of which is attached
hereto as EXHIBIT A.
WHEREAS, pursuant to that certain Asset Purchase Agreement (the "Asset
Purchase Agreement") dated October 1, 2004, between Assignor and Assignee,
Assignee has purchased all assets of Assignor, more particularly set forth in
Section 1.1 of the Asset Purchase Agreement, which assets include the Lease.
WHEREAS, in order to effectuate the terms of the Asset Purchase
Agreement, Assignor desires to assign the Lease to Assignee and Assignee desires
to assume the obligations of Assignor under the Lease accruing from and after
the Effective Date (as defined below) and Landlord hereby consents to the
assignment of the Lease by Assignor to Assignee upon the terms and conditions
contained herein and the parties wish to amend the lease as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
FIRST: The effective date of this Agreement shall be the date set
forth above ("Effective Date").
SECOND: Assignor hereby assigns, transfers, sets over, and conveys
unto Assignee, all of Assignor's right, title and interest in and to the Lease
effective as of Effective Date.
THIRD: From and after the Effective Date, Assignee hereby agrees to
assume, observe and perform all of the obligations of Assignor under the Lease
and to indemnify and hold harmless Assignor from any and all liability or
responsibility arising out of any failure of the Assignee to fully and
faithfully perform such obligations.
FOURTH: Assignor and Assignee represent to Landlord that neither party
consulted nor negotiated with any broker or finder with regard to this
Assignment and Assumption of Lease Agreement.
FIFTH: Landlord represents that (i) there are no existing or claimed
defaults on the part of Assignor or Landlord under the Lease; and there are not
existing or claimed conditions that, with the passage of time or notice, would
constitute a default on the part of Assignor or Landlord under the Lease, (ii)
the Lease is in full force and effect and has not been modified, amended or
supplemented, except as follows: April 23, 1992 amendment to lease (Exhibit B),
March 26, 1993 amendment to lease (Exhibit C), April 1, 2000 amendment to lease
(Exhibit D), July 30, 2002 Extension and Modification Agreement (Exhibit E) and
August 22, 2002 letter amendment to lease (Exhibit F), (iii) Landlord has not
received notice of prior sale, transfer, assignment, hypothecation or pledge of
the Lease, except to Assignee; and Landlord has not assigned, sublet,
hypothecated or otherwise transferred all or any portion of its interest under
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the Lease except as set forth in the Non-Disturbance Agreement, (iv) Landlord
and Assignor have performed and complied with all obligations to be performed or
complied with by them under the Lease, (v) all payments due and payable to
Landlord by Assignor under the Lease as of the date hereof have been paid
through September 30, 2004, (vi) there are no defenses or offsets to the
enforcement of the Lease, and (vii) there are no third-party consents required,
including any from a mortgagee, for the assignment or amendment of the Lease as
set forth herein.
SIXTH: Landlord hereby consents to this assignment of the Lease by
Assignor to Assignee and releases Assignor from all obligations under the Lease.
SEVENTH: Assignee shall indemnify and hold harmless Assignor, its
employees, officers, directors and affiliated companies, and each of their
employees, officers and directors, from and against any and all losses, damages,
liabilities or claims (including, without limitation, reasonable attorneys' fees
and any and all reasonable expenses incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) asserted against, resulting to, imposed upon or incurred or suffered
by Assignor by reason of Assignee's failure to keep, fulfill, observe, perform,
discharge, and faithfully perform all covenants, stipulations, agreements and
obligations under the Lease, including, without limitation, the duty to pay all
rent and additional rent under the Lease, accruing on and after the Effective
Date, or otherwise attributable to the period commencing on the Effective Date
and continuing thereafter for the remaining term of the Lease.
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EIGHTH: All notices or other documents under this Agreement and the
Lease shall be in writing and delivered personally or mailed by certified mail,
postage prepaid, addressed to the parties as follows:
Assignor: Del Global Technologies Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Assignee: Xxxxxxxx High Voltage Electronics Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Landlord: DP 16 LLC
c/o Diamond Properties, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
NINTH: This Agreement shall be governed by the laws of the State of
New York, without giving effect to conflicts of law principles thereof. Assignor
and Assignee agree that all actions or proceedings arising in connection with
this Agreement shall be tried and litigated only in the state and federal courts
located in the State of New York Assignee waives any right it may have to assert
the doctrine of forum non conveniens or to object to such venue, and consents to
any court ordered relief. The choice of forum set forth herein shall not be
deemed to preclude the enforcement of any judgment obtained in such forum.
TENTH: The Lease is modified to delete the space marked "Surrendered
Space" on the plan attached as Exhibit G. The Fixed Rent payable under the Lease
shall be at the rate of TWO HUNDRED NINETY-THREE THOUSAND SEVEN HUNDRED
EIGHTY-ONE AND 25/100 ($293,781.25) DOLLARS per annum ($24,481.77 per month).
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Tenant's Percentage and Tenant's Share as defined in the Lease are each hereby
reduced to 54.73%. Exhibit A and Exhibit B, attached to and made a part of the
Lease, shall be deemed modified to change 43,750 square feet to 34,563 square
feet.
ELEVENTH: Except to the extent modified and amended by the provisions
of this Agreement, the Lease is hereby ratified and confirmed in all respects
and shall be binding upon the parties hereto and their successors and permitted
assigns.
TWELFTH: This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
ASSIGNOR:
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer
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ASSIGNEE:
XXXXXXXX HIGH VOLTAGE ELECTRONICS
CORPORATION
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
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Title: President
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LANDLORD:
DP 16 LLC
a New York Limited Liability Company
By: Diamond Properties, LLC,
a Delaware limited liability company,
its sole member
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
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Title: Vice President
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