Exhibit 10(v)
THIRD LEASE AMENDMENT AGREEMENT
This Third Lease Amendment Agreement is made as of this 20th day of
February, 1996 and reference is made to a certain Commercial Lease dated
November 4, 1987, Lease Amendment Agreement dated April 29, 1991 and 2nd
Lease Amendment Agreement dated April 7, 1993 (hereinafter collectively the
"Lease") made by and between GBD/Odyssey Limited Partnership and its
successor-in-interest New Avon Limited Partnership (hereinafter "Landlord")
and Westerbeke Corporation (hereinafter "Tenant") for the Demised Premises
consisting of approximately 15,680 square feet in the building commonly
known as The Odyssey Building, 40 Xxxxxx Road, Avon, Massachusetts;
WITNESSETH:
WHEREAS, the term of said Lease shall expire on the last day of June, 1996,
and;
WHEREAS, the Tenant desires to extend the Term of said Lease for a period of
three (3) years beyond the current expiration date (the "Extended Term") and
to have the option to further extend the Term for an additional two years,
and;
WHEREAS, the Landlord desires to accommodate the Tenant in these respects,
NOW, THEREFORE, the parties hereto covenant and agree as follows:
1. TERM: The Term as stated on page 1 of the Commercial Lease as
subsequently amended by the Lease Amendment Agreement and 2nd Lease
Amendment Agreement is hereby amended and extended for a term of three (3)
years, which Term shall commence on the first day of July, 1996 and shall
expire on the last day of June, 1999, as if such Term had been originally
set forth herein.
2. ANNUAL RENT: Section 4 of the Commercial Lease as modified by Section
2 of both the Lease Amendment Agreement and the 2nd Lease Amendment
Agreement shall be deleted in their entirety and the following provisions
shall be substituted in their place:
"Tenant shall pay to Landlord annual rent at the rate of Fifty-nine Thousand
Five Hundred Eighty-four Dollars ($59,584.00) for the first year of the
Extended Term, paid on the first day of the month in advance in equal
installments of Four Thousand Sixty-five Dollars and Thirty-three Cents
($4,965.33).
Tenant shall pay to Landlord annual rent at the rate of Sixty-one Thousand
One Hundred Fifty-two Dollars ($61,152.00) for the second year of the
Extended Term, paid on the first day of the month in advance in equal
monthly installments of Five Thousand Ninety-six Dollars ($5,096.00).
Tenant shall pay to Landlord annual rent at the rate of Sixty-two Thousand
Seven Hundred Twenty Dollars ($62,720.00) for the third year of the Extended
Term, paid on the first day of the month in advance in equal installments of
Five Thousand Two Hundred Twenty-six Dollars and Sixty-seven Cents
($5,226.67).
The rent and other sums payable by Tenant hereunder shall be paid without
notice or demand, and without abatement, deduction, setoff, reduction or
suspension, except as expressly provided in the Lease."
3. REAL ESTATE TAXES AND OPERATION COSTS: Section 6 of the Commercial
Lease shall be deleted in its entirety and the following provisions shall be
substituted in its place:
"For the purpose of this Section 3, the following terms shall have the
following meanings:
A. Real Estate Taxes - real estate taxes levied against the land and
building of which the Demised Premises are a part, including betterment
assessments and other governmental charges which may be charged, assessed or
imposed upon the land, building and other improvements of which the Demised
Premises are a part.
B. Operation Cost - all reasonable costs and expenses incurred by Landlord
in connection with the maintenance and operation of the land and building of
which the Demised Premises are a part. Operation Cost shall include,
without limitation, all reasonable costs and expenses incurred by Landlord
(a) in repairs to the building and its appurtenances and the exterior signs
thereon, (b) in carrying fire, casualty, plate glass, rent and liability
insurance upon the building (including, without limitation, insurance
carried under so-called "blanket" and/or "umbrella" policies), (c) in
providing services including, but not limited to, lighting, plowing,
cleaning, maintaining and beautifying the exterior of the building and the
land appurtenant to the building and the landscaping and gardening (if any)
thereof, (d) in paying wages, unemployment taxes and benefits of personnel
engaged in the management and operation of the building (appropriately
prorated where a person's duties are not limited solely to the building),
(e) in paying for electricity, water and sewerage and other utilities
charges imposed by the entity providing such services, to the extent not
separately metered to the Demised Premises, and the cost of maintaining any
utility systems outside the Demised Premises (including, without limitation,
any rooftop HVAC equipment), and (f) a management fee equal to five percent
(5%) of gross receipts from the operation of the building. Landlord's
Operation Cost shall not include charges which are attributable to utility
charges for which Landlord shall receive direct payment from other tenants
with respect to other space in the Building; the cost of providing
additional services to Tenant (or to other tenants in the Building) not
generally furnished to all occupants of the Building, for which Landlord
shall receive direct payment from Tenant (or direct payment from such other
tenants); payments of principal, interest or other charges on mortgages and
payments of ground rent on any ground lease; legal fees or other expenses in
connection with the leasing of other space of Landlord in the Building or
the collection of rent or enforcement of lease obligations; or salaries of
executives or principals of Landlord (except as the same may be reflected in
any management fee).
C. Tenant's Tax and Operation Cost Obligation - for any calendar year (or
partial calendar year) occurring during the Term, the sum of Real Estate
Taxes and Operation Cost multiplied by Tenant's share of Operation Cost,
which share shall be Ten and Twenty-seven Hundredths Percent (10.27%). For
the partial calendar years at the beginning and end of the Term, Tenant's
Tax and Operation Cost Obligation shall be equal to Tenant's Tax and
Operation Cost Obligation as determined pursuant to the immediately
preceding sentence, multiplied by that fraction of the relevant calendar
year during which this lease was in effect.
Tenant shall pay to Landlord, as additional rent, Tenant's Tax and Operation
Cost Obligation for each calendar year (or partial calendar year) during the
Term.
Tenant shall pay to Landlord in advance on the first day of every month
during the Term, payment on account of Tenant's obligations under this
Section along with payment of annual rent under Section 2. Tenant's initial
monthly payment on account of real estate taxes under this Section shall be
Six Hundred Seven Dollars and Forty-seven Cents ($607.47) and its initial
monthly payment on account of operation cost under this Section shall be
Seven Hundred Eighty-four Dollars ($784.00). From time to time, and upon
prior written notice to Tenant, Landlord shall have the right to adjust the
amount of Tenant's monthly payments. Following the end of each calendar
year, Landlord shall determine the exact amount of Tenant's Tax and
Operation Cost Obligation with respect to the calendar year then ended, and
appropriate adjustments shall be made (either by additional payment by
Tenant or crediting by Landlord toward subsequent obligations of Tenant
under this Section, or refund if at end of Term), so that the amount of such
adjustment, when aggregated with the amount of Tenant's monthly payments
during the preceding calendar year, will equal Tenant's Tax and Operation
Cost Obligation for such calendar year. Within ninety (90) days after the
end of each calendar year, Tenant shall receive a statement from Landlord
detailing the previous twelve months operating expenses for the Building and
the estimated monthly Operation Cost Obligation for the subsequent period.
In addition to the foregoing, Tenant shall pay all taxes upon its personal
property in or upon the Demised Premises.
Notwithstanding the foregoing, it is understood and agreed that disposal of
Tenant's refuse or related material shall be the sole responsibility of
Tenant, and Tenant shall provide proper disposal container(s) located on the
perimeter of the property for this purpose (subject to Landlord's approval,
which shall not be unreasonably withheld or delayed) at Tenant's sole cost
and expense.
With respect to the pro-ration of annual water usage by all tenants in the
building, in the event that a tenant occupying a portion of the building
uses a greater amount of water than is customarily used by other tenant in
the building, the water usage for that tenant shall be separately metered
(at that tenant's expense) and billed to that tenant, exclusive of other
tenants in the Building."
4. EXTENSION OPTION: Provided Tenant is not then in default under this
Lease (and shall not be in default on the expiration date of this Lease),
Tenant shall have the option, subject to the conditions set forth below, to
extend this Lease for the term of two (2) years from the date of expiration
of the Term as stated in Section 1 (the "extension period"), upon the terms
and conditions as in this Lease contained. To exercise this option, Tenant
shall give written notice to Landlord not later than one hundred eight (180)
days prior to the expiration of the Term as stated in Section 1. Tenant
shall pay to Landlord for the term of such extension period base annual rent
equal to Market Rate. Within thirty (30) days of Landlord's receipt of
Tenant's notice to extend, Landlord shall give notice to Tenant specifying
the proposed Market Rate, as more specifically set forth in Exhibit C
attached hereto, said Market Rate defined as the amount of rent a
prospective tenant, in an arms-length transaction, would be willing to pay
on the date that the Extension Period commences, for a two-year period and
in light of the fact that Tenant shall be responsible for paying Real Estate
Taxes and Operation Cost as set forth herinbefore.
5. NO DEFAULTS: Each of the Landlord and Tenant agrees that, as of the
date hereof, the Lease is in full force and effect and that, to the best of
its knowledge, no default by the other party exists and that the Tenant has
paid to Landlord all amounts of rent, additional rent and other sums payable
to Landlord by Tenant which are due and payable under the Lease.
6. MISCELLANEOUS: (a) The Lease is hereby amended so that each and every
reference therein to the Lease shall be deemed to refer to the Lease as
amended hereby. (b) Except as modified herein, all terms and conditions of
the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Third Lease
Amendment Agreement as of the date first written above.
LANDLORD: TENANT:
NEW AVON LIMITED PARTNERSHIP WESTERBEKE CORPORATION
By Its General Partner,
New Avon Development Corporation
BY: /s/ Xxxxxxxx X. Xxxxxxxxxx BY: /s/ Xxxxxxxx X. Xxxxxx III
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Xxxxxxxx X. Xxxxxxxxxx, President
Title: Executive VP
Print Name: Xxxxxxxx X. Xxxxxx III
EXHIBIT C
Determination of Market Rate
Landlord shall, within thirty (30) days of notice (i) from its departing
tenant, and/or (ii) of Tenant's notice to exercise its extension option
hereunder, designate the Market Rate.
If Tenant disagrees with Landlord's designation of the Market Rate, Tenant
shall have the right by written notice given within thirty (30) days after
Tenant has been notified of Landlord's designation, to submit the
determination of Market Rate to arbitration. Such notification by Tenant
shall be deemed to be an exercise of Tenant's right to expand into adjacent
space the balance of the Lease Term. Market Rate shall be submitted to
arbitration as follows: Market Rate shall be determined by impartial
arbitrators, one to be chosen by Tenant at the time it submits such Market
Rate to arbitration, one to be chosen by Landlord within fifteen (15) days
thereafter, and a third to be selected, if necessary, as provided below.
Each arbitrator shall be an M.A.I. appraiser or shall have at least five (5)
years experience in evaluating real estate similar to the Demised Premises.
The unanimous decision of the two first chosen, without selection and
participation of a third arbitrator, or the written decision of the third
arbitrator chosen and selected as provided below, shall be conclusive and
binding upon Landlord and Tenant. Unless the two arbitrators selected by
Landlord and Tenant have reached a designation, they shall so notify the
then Regional Director of the Boston chapter of the American Arbitration
Association and request him to select an impartial third arbitrator, to
determine Market Rate as herein defined. Within thirty (30) days after
being designated, the third arbitrator shall determine the Market Rate as
being either the Market Rate determined by Landlord's appraiser of the
Market Rate determined by Tenant's appraiser, whichever he believes to be
closer to the true Market Rate. The arbitration contemplated hereunder
shall be governed by the commercial arbitration rules of the American
Arbitration Association. Landlord shall bear the costs and expenses of the
arbitrator which it chooses and Tenant shall bear the cost and expenses of
the arbitrator which it chooses. In arriving at their determination
hereunder, the arbitrators shall consider the rental market for space
comparable to the space adjacent to the Demised Premises within a five (5)
mile radius of the Building. Landlord and Tenant shall bear the expense of
the third arbitrator and the costs and expenses of the arbitration
proceeding hereunder equally. If the dispute between the parties as to the
Market Rate has not been resolved before the commencement of (i) the
Expansion Space term, and/or (ii) the Extension Option, then Tenant shall
pay rent for the (i) Expansion Space, and/or (ii) the Extension Term based
upon the then payable Annual Rent set forth herein and its additional share
of Real Estate Taxes and Operation Cost payable with respect to the time
period in question until either the agreement of the parties as to the
Market Rate, or the decision of the arbitrators, as the case may be, at
which time Tenant shall pay any underpayment of rent with respect to the
time period in question to Landlord.