Exhibit 10.9
THIRD AMENDMENT TO LEASE
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THIS THIRD AMENDMENT TO LEASE ("Third Amendment") is dated this 6th day of
January 2003 by and between CDR Presidential, L.L.C., a Limited Liability
Company organized under the State of Florida ("Landlord") and Concord Camera
Corp., a New Jersey corporation ("Tenant")
BACKGROUND
1. Landlord as successor in interest to CarrAmerica Realty Corp. (the "Original
Landlord") and Tenant entered into a certain lease dated as of August 12,
1998 (the "Original Lease") pursuant to which Tenant leases from Landlord
suite 650-N (the "Original Premises") located in the building commonly known
as Presidential Circle (the "Building") at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxx, 00000.
2. By the First Amendment to Lease dated October 12, 1999 Tenant expanded the
Original Premises to include suite 630-N (the "Expansion Space").
3. By the Second Amendment to Lease dated January 3, 2000 Tenant expanded the
Original Premises and the Expansion Space to include suite 610-N ("Second
Expansion Space"). The Original Premises, Expansion Space and Second
Expansion Space shall hereinafter be collectively referred to as the
Premises. The Original Lease, First Amendment to Lease and Second Amendment
to Lease shall hereinafter be collectively referred to as the "Lease".
AT THIS TIME, Tenant and Landlord wish to expand the Premises, extend the Term
of the Lease and modify other sections of the Lease.
AGREEMENT
1. THIRD EXPANSION SPACE: Xxxxx 000-X consisting of 4,821 rentable square feet
using a common area add-on factor of 15.86% (the "Third Expansion Space").
Landlord shall obtain a letter from a licensed architect certifying the useable
square feet of the Third Expansion Space. In the event such certification
indicates a variance of .05%+/-, then the rentable square feet shall be
adjusted accordingly.
2. THIRD EXPANSION SPACE COMMENCEMENT DATE: The latter of March 1, 2003 or the
day following the termination date of the existing leasehold interest.
3. TERMINATION DATE: The Termination Date of the Premises and Third Expansion
Space shall be January 31, 2014 subject to early termination in accordance with
section 8 of this Third Amendment to Lease.
4. BASE RENT: Beginning with the first full month following the execution of
this Third Amendment to Lease the Base Rent shall be as follows:
Monthly Base
Period In Months Per Square Foot Monthly Base Rent Rent (Third
---------------- Per Annum (Premises) Expansion Space)
--------- ---------- ----------------
January 1, 2003-48 $15.50 $19,610.08 $6,227.13
49-84 $15.80 $19,989.63 $6,347.65
85-120 $16.20 $20,495.70 $6,508.35
121-Termination Date $16.60 $21,001.77 $6,669.05
The monthly Base Rent for the Third Expansion Space indicated above is subject
to an initial adjustment based upon the determination of the useable square feet
from the licensed architect as described in section 1 above.
5. OPERATING COST SHARE RENT: Tenant shall pay Operating Cost Share Rent
according to the terms of the Lease for the Premises and Third Expansion Space.
6. TENANT'S PROPORTIONATE SHARE: 5.44% and 1.71% for the Premises and Third
Expansion Space respectively.
The proportionate share percentage for the Third Expansion Space
indicated above is subject to an initial adjustment based upon the determination
of the useable square feet from the licensed architect as described in section 1
above.
Page 1 of 9
THIS THIRD AMENDMENT TO LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
7. PARKING: Subject to the terms described in Section 31 of the Lease, Tenant
shall have the use of parking based upon the following allocation:
Total Parking Spaces One hundred twenty (120)
Surface Parking Spaces Eighty (80)
Garage Parking Spaces Forty (40)
Notwithstanding anything to the contrary, Tenant shall only be charged
for the use of eighteen (18) garage parking spaces at a rate of $45.00 per space
per month throughout the Term of the Lease.
8. TERMINATION OPTION: Section 33 of the Lease is hereby deleted and replaced by
the following language:
Tenant may at its option terminate the Lease in its entirety (the
"Termination Option") effective January 31, 2009 (the "Early Termination Date")
by delivering notice of its intent to terminate this Lease (the "Termination
Notice") to Landlord on or before February 1, 2008. If Tenant fails to deliver
its Termination Notice timely, Tenant will be deemed to have waived such
Termination Option. If there are any uncured monetary or material defaults by
Tenant under this Lease as of the date Tenant delivers the Termination Notice or
as of the Early Termination Date, the Termination Option shall be void, and the
Lease shall remain in effect. If Tenant properly exercises its Termination
Option, this Lease shall terminate as of the Early Termination Date.
The "Termination Fee" shall be $180,000.00. Tenant shall pay the
Termination Fee in the last full calendar month prior to the Early Termination
Date. Such amount includes the amortization of $40,000.00 which the Landlord may
contribute. To the extent this amount or a lesser amount is contributed by
Landlord, the Termination Fee shall be adjusted accordingly.
9. AFTER HOURS AIR CONDITIONING: Tenant agrees to pay on a monthly basis as
Additional Rent an amount of $830.00 as usage of six hundred (600) hours of
after hours air conditioning per calendar year. Any additional hours will be
billed to Tenant at a current charge of $16.60 per hour and will be payable to
Landlord within twenty (20) days upon receipt of a reconciliation invoice. Such
reconciliation invoice can be remitted by Landlord whenever Tenant's usage
exceeds fifty (50) hours in any calendar month on a cumulative basis for any
calendar year. In the event Tenant's usage exceeds more than six hundred (600)
hours in any calendar year Tenant agrees to pay on a monthly basis beginning
January of the subsequent year as Additional Rent an amount equal to the total
hours used times the current charge divided by twelve. The current charge of
$16.60 is subject to increases based upon costs directly associated with such
usage.
10. SIGNAGE: Subject to any state and/or local authorities' approval, Tenant
shall be permitted to install building signage as approved by Landlord on the
north tower on the building facade facing east. The cost to install and maintain
such signage shall be at Tenant's sole cost and expense. Landlord shall use best
efforts to assist Tenant in obtaining the required approvals.
11. INTERRUPTION OF SERVICES: Section 4.F. of the Lease is hereby amended by
deleting the text "ten (10)" in the last sentence of the first paragraph and
substituting with the text of "four (4)" in lieu thereof.
12. TAXES: The Taxes that are included as Operating Costs shall be the amount
based upon the maximum discount available to Landlord whether or not Landlord
decides to take such discount.
13. BOOKS AND RECORDS: Section 2.D.(4). of the Lease is hereby amended by
deleting the last sentence and substituting "Tenant shall pay the cost of such
certification unless Landlord's original determination of annual Operating Costs
for the Building are overstated by more than two percent (2%)" in lieu
thereof.
14. RIGHT OF FIRST REFUSAL: Subject to Subsection B below, and subject to any
expansion or renewal options of any current tenant in the Building (a "Prior
Tenant"), Landlord hereby grants to Tenant for the term of the Lease a right of
first refusal for space on the fifth and seventh floors of the north tower of
the Building (collectively, the "ROFR Space"), to be exercised in accordance
with Subsection A below.
A. If Landlord receives a bona fide letter of intent on any ROFR Space
(see attached Exhibit "A"), Landlord shall so notify Tenant ("Landlord's ROFR
Notice") identifying the available ROFR Space (the "Subject ROFR Space"). Tenant
shall notify Landlord within ten (10) business days of receipt of Landlord's
ROFR Notice whether it desires to lease the Subject ROFR Space. Such ROFR Space
shall be leased at the lesser of the Base Rent terms set forth in Landlord's
ROFR Notice or the same Base Rent terms of the Lease and the Landlord's
Contribution of any ROFR Space shall be $0.22 per rentable square foot for each
full month of the term of the ROFR Space. If Tenant does not notify Landlord
within said 10-business day period that it will lease the Subject ROFR Space,
Tenant shall be deemed to have refused the Subject ROFR Space. After any
refusal, Tenant shall have no further right of
Page 2 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
first refusal (unless and until such subject ROFR Space again becomes available,
in which case Tenant shall have a new right of first refusal with respect to
such Subject ROFR Space) for such Subject ROFR Space and Landlord shall be free
to lease such space to any party for any term and upon any terms it desires. If
Tenant exercises its right of first refusal with respect to the Subject ROFR
Space, such space shall be added to the Premises the sooner of occupancy or one
hundred twenty (120) days after Tenant exercises its rights, subject to
adjustment due to Landlord delay. Such space shall be added to the Premises for
the remaining Term of the Lease (but in no event less than three (3) years) on
the same terms of this Lease, except that the terms of Landlord's ROFR Notice
shall not apply during any Renewal Term, and instead, the terms of the Lease
applying to the remainder of the Premises during the Renewal Term shall also
apply to the Subject ROFR Space.
B. Tenant's right of first refusal is subject to the conditions that:
(i) on the date that Tenant delivers its notice exercising its right of first
refusal, Tenant is not in monetary or material default under this Lease after
the expiration of any applicable notice and cure periods, and (ii) Tenant shall
not have assigned the Lease, or sublet any portion of the Premises (exclusive of
any sublease agreement between Tenant and the existing tenant occupying the
Third Expansion Space) under a sublease which is in effect at any time during
the period commencing with Tenant's delivery of its notice and ending on the
date the ROFR Space is added to the Premises.
C. Promptly after Tenant's exercise of its right of first refusal,
Landlord shall execute and deliver to Tenant an amendment to the Lease to
reflect changes in the Premises, Base Rent, Tenant's Proportionate Share and any
other appropriate terms changed by the addition of the ROFR Space. Within 15
days thereafter, Tenant shall execute and return the amendment.
D. Notwithstanding anything to the contrary contained herein, in the
event any of the ROFR Space that does not presently contain a renewal option
expires, and the current tenant wants to extend the term of the lease, Landlord
agrees to offer such space to Tenant in accordance with Sections A, B and C
above, except the Base Rent shall be ninety-five percent (95%) of the Base Rent
being offered in Landlord's ROFR Notice.
15. EXTENSION OPTION. Subject to Subsections B and C below, Tenant may at its
option extend the Term of this Lease for the entire Premises for one (1) period
of five (5) years (the "Renewal Term") upon the same terms contained in this
Lease, excluding the provisions of Appendix C of the Lease and any other
applicable provisions pertaining to Initial Improvements and/or Landlord's
Contribution, and except for the amount of Base Rent and parking charges payable
during the Renewal Term. Tenant shall have no additional extension option.
A. The Base Rent during the Renewal Term shall be the then prevailing
market rate for a comparable term, market concessions, and Tenant Improvements
subject to adjustments based upon quality of building, size, and credit
worthiness of Tenant, commencing on the first day of the Renewal Term for
tenants renewing space in the Building and other comparable office buildings
(the "Prevailing Market Rate").
B. To exercise its option, Tenant must deliver an initial non-binding
notice to Landlord not less than twelve (12) months prior to the proposed
commencement of the Renewal Term. At some point within sixty (60) days after
receipt of such non-binding notice, Landlord shall calculate and inform Tenant
of the Prevailing Market Rate for the Premises. Tenant shall give Landlord final
binding notice of intent to exercise its option to extend within thirty (30)
days after receiving Landlord's determination of Prevailing Market Rate. If
Tenant fails to give either its initial non-binding notice or its final binding
notice timely, Tenant will be deemed to have waived its option to extend. If
Tenant disputes Landlord's determination of Prevailing Market Rate, Tenant's
final binding notice shall set forth Tenant's determination of the Prevailing
Market Rate. If Tenant fails to set forth its determination of Prevailing Market
Rate in its final binding notice, then Tenant shall be deemed to have accepted
Landlord's determination of Prevailing Market Rate.
If Tenant timely within thirty (30) days disputes Landlord's
determination and Landlord and Tenant fail to agree as to the Prevailing Market
Rate within 20 days after the giving of Tenant's final binding notice, then the
Prevailing Market Rate shall be determined as follows: Such dispute shall be
resolved by arbitration conducted in accordance with the Real Estate Valuation
Arbitration Rules (Expedited Procedures) of the AAA, except that the provisions
of this Article shall supersede any conflicting or inconsistent provisions of
said rules. The party requesting arbitration shall do so by giving notice to
that effect to the other party, specifying in said notice the nature of the
dispute, and that said dispute shall be determined in Broward County, Florida,
by a panel of 3 arbitrators in accordance with this Article. Landlord and Tenant
shall each appoint their own arbitrator within 7 days after the giving of notice
by either party. If either Landlord or Tenant shall fail timely to appoint an
arbitrator, the appointed arbitrator shall select the second arbitrator, who
shall be impartial, within 7 days after such party's failure to appoint. Such
two arbitrators shall have 7 days to appoint a third arbitrator who shall be
impartial. If such arbitrators fail to do so, then either Landlord or Tenant may
request the AAA to appoint an arbitrator who shall be impartial within 14 days
of such request and both parties shall be bound by any appointment so made
within such 14-day period. If no such third arbitrator shall have been appointed
within such 14 days, either Landlord or Tenant may apply to any court having
jurisdiction to make such appointment. The three arbitrators shall proceed with
all reasonable dispatch to determine the Prevailing Market Rate and under all
circumstances shall be bound by the terms of this Lease and shall not add to,
subtract from or otherwise modify such provisions. The arbitrators' sole
discretion in determining the question submitted shall be limited to selecting
one of Tenant's or Landlord's Determination. The decision of the
Page 3 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
arbitrators shall be rendered within 14 days after the third arbitrator has been
appointed and shall be in writing and delivered to each of Landlord and Tenant.
It is hereby agreed that a decision of the majority of the arbitrators shall be
binding, final and conclusive upon Landlord and Tenant. The fees and expenses of
any arbitration and of the third arbitrator pursuant to this Paragraph shall be
borne by the parties equally, but each party shall bear the expense of its own
arbitrator, attorneys and experts and the additional expenses of presenting its
own proof. Each arbitrator shall have at least 10 years' experience in leasing
and valuation of properties that are similar in character to the Building. After
a determination has been made of the Prevailing Market Rate, the parties shall
execute and deliver an instrument setting forth the Prevailing Market Rate, but
the failure to so execute and deliver any such instrument shall not effect the
determination of Prevailing Market Rate.
If Tenant disputes Landlord's determination and if the final
determination of Prevailing Market Rate shall not be made on or before the first
day of the applicable Renewal Term, then, pending such final determination,
Tenant shall pay, as rent for the Renewal Term, an amount equal to Landlord's
determination of the Prevailing Market Rate.
C. Tenant's option to extend this Lease is subject to the conditions
that: (i) that on the date that Tenant delivers its initial non-binding notice
or its final binding notice exercising its option to extend, Tenant is not in
monetary or material default beyond any applicable cure period under this Lease
after the expiration of any applicable notice and cure periods, and (ii) Tenant
shall not have assigned this Lease, or sublet any portion of the Premises under
a sublease except to the extent permissible under Section 17.
16. ESTOPPEL CERTIFICATE: Each party shall, within ten (10) days of receiving a
request from the other party, execute, acknowledge in recordable form, and
deliver to the other party or its designee a certificate stating, subject to a
specific statement of any applicable exceptions, that the Lease as amended to
date is in full force and effect, that the Tenant is paying Rent and other
charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The certifying party may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, the current Operating Cost Share Rent and Tax Share Rent
estimates, the status of any improvements required to be completed by Landlord,
the amount of any security deposit, and such other matters as may be reasonably
requested. Failure to deliver such statement within the time required and
failure continues ten (10) days after Tenant's receipt of a second request shall
be conclusive evidence against the non-certifying party that this Lease, with
any amendments identified by the requesting party, is in full force and effect,
that there are no uncured defaults by the requesting party, and that the
non-certifying party has no claims or offsets against the requesting party.
17. REAL ESTATE BROKER: Tenant and Landlord represent to each other that they
have not dealt with any real estate brokers with respect to this Third Amendment
to Lease except for Xxxxxxxx Xxxx Company (Tenant's broker). Tenant and
Landlord shall indemnify and defend each other against any claims by any other
broker or third party for any payment of any kind in connection with this Lease.
18. TENANT IMPROVEMENTS FOR THE THIRD EXPANSION SPACE:
A. INITIAL IMPROVEMENTS. Landlord shall cause to be performed the
improvements (the "Initial Improvements") in the Premises in accordance with
plans and specifications approved by Tenant and Landlord (the "Plans"), which
approvals shall not be unreasonably withheld. The Initial Improvements shall be
performed at the Tenant's cost, subject to the Landlord's Contribution
(hereinafter defined).
Tenant shall cause the Plans to be prepared by a registered professional
architect, and mechanical and electrical engineer(s). Such engineer(s) shall be
approved in advance by the Landlord. Tenant shall furnish the initial draft of
the Plans to Landlord for Landlord's review and approval. Landlord shall within
two (2) weeks after receipt either provide comments to such Plans or approve the
same. Landlord shall be deemed to have approved such Plans if it does not timely
provide comments on such Plans. If Landlord provides Tenant with comments to the
initial draft of the Plans, Tenant shall provide revised Plans to Landlord
incorporating Landlord's comments within one week after receipt of Landlord's
comments. Landlord shall within one week after receipt then either provide
comments to such revised Plans or approve such Plans. Landlord shall be deemed
to have approved such revised Plans if Landlord does not timely provide comments
on such Plans. The process described above shall be repeated, if necessary,
until the Plans have been finally approved by Landlord. Tenant hereby agrees
that the Plans for the Initial Improvements shall comply with all applicable
Governmental Requirements. Landlord's approval of any of the Plans (or any
modifications or changes thereto) shall not impose upon Landlord or its agents
or representatives any obligation with respect to the design of the Initial
Improvements or the compliance of such Initial Improvements or the Plans with
applicable Governmental Requirements.
Landlord, with consultation of Tenant, shall select a contractor to
perform the construction of the Initial Improvements. Such contractor shall be
selected by a competitive bid process between at least three (3) contractors of
which two (2) shall be selected by Landlord and at least one (1) by Tenant.
Landlord, or an agent of Landlord, shall provide project management
services in connection with the construction of the Initial Improvements and the
Change Orders (hereinafter defined). Such project management services shall be
performed, at Tenant's cost, for a fee of $2,500.00.
Page 4 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
B. CHANGE ORDERS. If, prior to the Commencement Date, Tenant shall
require improvements or changes (individually or collectively, "Change Orders")
to the Premises in addition to, revision of, or substitution for the Initial
Improvements, Tenant shall deliver to Landlord for its approval plans and
specifications for such Change Orders. If Landlord does not approve of the plans
for Change Orders, Landlord shall advise Tenant of the revisions required.
Tenant shall revise and redeliver the plans and specifications to Landlord
within five (5) business days of Landlord's advice or Tenant shall be deemed to
have abandoned its request for such Change Orders. Tenant shall pay for all
preparations and revisions of plans and specifications, and the construction of
all Change Orders, subject to Landlord's Contribution.
C. LANDLORD'S CONTRIBUTION. Landlord shall contribute an amount not to
exceed $26.40 per rentable square foot of the Third Expansion Space
($127,274.40) ("Landlord's Contribution") toward the costs incurred for the
Initial Improvements and Change Orders. Landlord has no obligation to pay for
costs of the Initial Improvements or Change Orders in excess of Landlord's
Contribution. If the cost of the Initial Improvements and/or Change Orders
exceeds the Landlord's Contribution, Tenant shall pay such overage to Landlord
within ten (10) days of receipt of an invoice. Such invoice will be billed based
upon the percentage of improvements in place, and final payment being due upon
substantial completion of the improvements. In addition to the Landlord's
Contribution above, at Tenant's election, Landlord shall contribute up to
$40,000.00 towards the reconfiguration or modification to the existing common
area of the floor.
D. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord at its
discretion may permit Tenant and its agents to enter the Premises prior to the
Commencement Date to prepare the Premises for Tenant's use and occupancy. Any
such permission shall constitute a license only, conditioned upon Tenant's:
(1) working in harmony with Landlord and Landlord's agents, contractors,
workmen, mechanics and suppliers and with other tenants and occupants of the
Building;
(2) obtaining in advance Landlord's approval of the contractors proposed
to be used by Tenant and depositing with Landlord in advance of any work (i)
security satisfactory to Landlord for the completion thereof, and (ii) the
contractor's affidavit for the proposed work and the waivers of lien from the
contractor and all subcontractors and suppliers of material; and
(3) furnishing Landlord with such insurance as Landlord may require
against liabilities which may arise out of such entry.
Landlord shall have the right to withdraw such license for any reason
upon twenty-four (24) hours' written notice to Tenant. Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any of
Tenant's property or installations in the Premises prior to the Commencement
Date. Tenant shall protect, defend, indemnify and save harmless Landlord from
all liabilities, costs, damages, fees and expenses arising out of the activities
of Tenant or its agents, contractors, suppliers or workmen in the Premises or
the Building. Any entry and occupation permitted under this Section shall be
governed by Section 5 and all other terms of the Lease.
E. MISCELLANEOUS.
Terms used in this Appendix C shall have the meanings assigned to them
in the Lease. The terms of this Appendix C are subject to the terms of the
Lease.
19. Section 2.A. of the Lease is hereby amended by substituting the following in
lieu of the name, address and wire transfer information for the payment of Rent
to the Original Landlord:
CDR Presidential, L.L.C.
c/o CDR Realty, L.L.C.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
or by wire transfer as follows:
Bank Name: Bank of America
Account Name: CDR Presidential, L.L.C.
ABA Number: 000000000
Account Number: 003446259519
20. Section 16.A. of the Lease is hereby amended as follows:
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any present or
future ground lease or mortgage respecting the Project, and any amendments to
such ground lease or mortgage, at the election of the ground lessor or mortgagee
as the case may be. The subordination shall be self-operative and no further
instrument of subordination shall be required, but at the request of Landlord or
ground lessor or mortgagee, Tenant shall within ten (10) business days of the
request, execute and deliver to the requesting party any reasonable documents
provided to evidence the subordination. Any mortgagee has the right, at its
option, to subordinate its mortgage to the terms of this Lease, without notice
to, nor the consent of, Tenant.
Page 5 of 9
THIS THIRD AMENDMENT TO LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
21. Section 23A of the Lease is hereby amended by substituting the following in
lieu of the name and address of the Original Landlord:
CDR Presidential, L.L.C.
c/o CDR Realty, L.L.C.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xx Xxxxxxxxxx, Vice President/Director of Operations
22. Appendix D is hereby amended by substituting the following in lieu of the
mortgage referenced in the Original Lease:
Metropolitan Life Insurance Company
000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
23. DEFAULT INTEREST: Section 2.D.(2) of the Lease is hereby amended by deleting
the text "eighteen percent (18%)" and substituting with the text of "twelve
percent (12%)" in lieu thereof.
24. WATER: Section 4.D of the Lease is hereby deleted and replaced by the
following language: Landlord shall furnish hot and cold tap water for drinking,
toilet purposes and other typical uses based upon Tenant's use of the Premises
as described in Section 6 of the Lease. Tenant shall pay Landlord for water
furnished for any other purposes or Additional Rent at rates charged by the
utility company plus and an administrative fee equal to ten percent (10%).
Tenant shall not permit water to be wasted.
25. VACATION AND ABANDONMENT DEFAULT: Section 12.E of the Lease is hereby
amended by deleting ".", and substituting ", and does not continue to pay Rent
when due." in lieu thereof.
26. HOLDOVER: Section 15 of the Lease is hereby deleted and replaced by the
following language: Tenant shall have no right to holdover possession of the
Premises after the expiration or termination of this Lease without Landlord's
prior written consent, which consent may be withheld in Landlord's sole and
absolute discretion. If Tenant retains possession of any part of the Premises
after the Term, Tenant shall become a month-to-month tenant for the entire
Premises upon all of the terms of this Lease as might be applicable to such
month-to-month tenancy, except that Tenant shall pay Rent during months one and
two at 125% the rate in effect immediately prior to such holdover, 150% during
months three through five, and 200% thereafter. Notwithstanding anything to the
contrary contained herein, in the event Landlord delivers notice ("Holdover
Notice") to Tenant that it has executed a lease with a tenant for any portion of
the Premises, and Tenant is not able to fully vacate such area and the
commencement date of such lease is delayed due to Tenant's holdover, Tenant
shall pay beginning with the first full month following such notice an entire
month of Rent during the first full month or any portion thereof following the
date of the Holdover Notice at 150% the rate in effect during the month prior to
the Termination Date. In the event Tenant retains possession of any or part of
the Premises after the first full month following the date of the Holdover
Notice the Tenant shall pay five (5) months of Rent at 200% the rate in effect
during the last month of the Term of the Lease. In the event Tenant retains
possession of any or part of the Premises beyond six (6) months after the
Termination Date, Tenant shall pay an entire month of Rent for each full or
partial calendar month at 150% the rate in effect during the last month of the
Term of the Lease. No acceptance of Rent or other payments by Landlord under
these holdover provisions shall operate as a waiver of Landlord's right to
regain possession or any other of Landlord's remedies.
27. ASSIGNMENT AND SUBLEASE: Section 17.A of the Lease is hereby amended by
inserting the text "reasonable" prior to "attorney's fees" in the fourth
sentence of this section.
Section 17.B.(vi) is hereby deleted in its entirety.
For the purpose of defining a prospective tenant in Section 17.B of the
Lease, such definition shall mean an entity that has been provided a written
proposal within the last one hundred twenty (120) days from the date of Tenant
requesting Landlord's consent.
Section 17.D. entire text is hereby deleted, and replaced with the
following language:
Change of Management or Ownership. Any transfer of the direct or
indirect power to affect the management or policies of Tenant or direct or
indirect change in 25% or more of the ownership interest in Tenant (any of the
foregoing in this Subsection D being herein sometimes referred to as an
"Ownership Transfer") shall constitute an assignment of this Lease.
Notwithstanding the foregoing in this Subsection D to the contrary, if Tenant
shall be a corporation whose stock is publicly traded on a nationally recognized
securities exchange (including the NASDAQ over-the-counter market), then, except
with respect to an Ownership Transfer in connection with the merger or
consolidation of Tenant and except with respect to an Ownership Transfer in
connection with the sale of all or substantially all of the assets of Tenant;
any Ownership Transfer shall not be deemed to be an assignment of this Lease. In
any event, any Ownership Transfer in connection with the merger or consolidation
of Tenant or in connection with the sale of all or substantially all of the
assets of Tenant shall constitute an assignment of this Lease.
Page 6 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
Section 17.E of the Lease is hereby amended by deleting ".", and
substituting ", after Tenant deducts any reasonable and customary costs
(including, but not limited to brokerage commissions and tenant improvements)
incurred in procuring such assignment or sublease." in lieu thereof.
28. TENANT's FINANCIAL STATEMENTS: Notwithstanding the terms of the Lease in
regards to this section (26.Y), the provisions of such section shall not be
applicable so long as Tenant is a publicly traded corporation.
29. TENANT PARKING: Section 31.C., the text contained in the 3rd, 4th and 5th
sentence of such section is hereby deleted in its entirety.
30. SUBORDINATION NONDISTURBANCE: Landlord shall use best efforts to provide
Tenant with a Subordination NonDisturbance and Attornment Agreement ("SNDA") in
a form similar to the SNDA given to Tenant for review, subject to changes
mutually agreed upon between lender and Tenant.
31. STATUS OF LEASE:
Landlord and Tenant hereby acknowledge and agree that: (i) as of the
date hereof, Landlord has complied with all of the terms and conditions of the
Lease, and that Tenant has no rights to any credit, claim, cause of action,
offset or similar charge against Landlord, the Base Rent and/or the Additional
Rent, each of same, if any, existing as of the date hereof, now being waived by
Tenant; (ii) Landlord has fully performed all of its obligations under the Lease
and is not obligated to make or pay for any additional tenant improvements
except for those tenant improvements specifically set forth in this Third
Amendment; (iii) Tenant represents and warrants to Landlord that there are no
assignees, sublessees (exclusive of any sublease between Tenant and the existing
tenant occupying the Third Expansion Space) or transferees of the Lease, or any
part hereof, or any person or firm (other than Tenant) occupying or having the
right in the future to occupy the Original Premises, the Expansion Space, the
Second Expansion Space, or the Third Expansion Space or any part thereof, not
previously approved by Landlord (iv) Tenant has no right to any credit, claim,
cause of action, offset or similar charge against Landlord or against the Rent
or any other charges due to Landlord under the Lease; (v) Landlord and Tenant
confirm that from the Third Expansion Space Commencement Date until the Third
Expansion Space Termination Date, the Original Premises, the Expansion Space,
the Second Expansion Space and the Third Expansion Space shall consist of 20,003
rentable square feet; the square footage of the Original Premises, Expansion
Space, Second Expansion Space, Third Expansion Space and the Building set forth
in the this Third Amendment and the Lease are conclusively deemed to be the
actual square footage thereof, without regard to any subsequent remeasurement
(exclusive of any change based upon the determination of useable square feet as
described in section 1 above) of the Original Premises, Expansion Space, Second
Expansion Space, Third Expansion Space or the Building; (vi) Tenant is not
entitled to any future rental abatement, concession, credit or reduction; (vii)
except for this Third Amendment, the Lease has not been modified in any respect;
and (viii) by this Third Amendment the Lease is currently scheduled to terminate
on January 31, 2014.
IN WITNESS WBEREOF, the parties hereto have executed this Third Amendment.
LANDLORD:
CDR PRESIDENTIAL, L.L.C.,
a Limited Liability Company
/s/ Illegible By: /s/ Xxxxxxx Xxxxxx
-------------------------- ---------------------------
Witness Xxxxxxx Xxxxxx
Vice President
/s/ Illegible Date: January 6, 2003
-------------------------- -------------------------
Witness
TENANT:
Page 7 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
CONCORD CAMERA CORP., a New Jersey corporation
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------------- -----------------------------------------
Witness
Print Name: Xxxx Xxxxxxxxxx
-----------------------------------
Title: CFO
----------------------------------------
/s/ Xxxxx X. Xxxxxxxx Date: 12-6-02
-------------------------- ----------------------------------------
Witness
Page 8 of 9
THIS THIRD AMENDMENT To LEASE by and between CDR Presidential, L.L.C., a Limited
Liability Company organized under the State of Florida ("Landlord") and Concord
Camera Corp., a New Jersey corporation ("Tenant").
EXHIBIT "A"
PRESIDENTIAL CIRCLE
-------------------
5th Floor North Lease Rollover Renewal Option Relocation Clause
------------------------------ -------------- -----------------
RSF Date
10,918 7/31/06 None Yes
6,791 8/31/06 One - 5 Year Yes
2,378 8/31/06 One - 5 Year Yes
7th Floor North Lease Rollover Renewal Option Relocation Clause
------------------------------ -------------- -----------------
RSF Date
4,697 Available 1/1/03
2,621 8/31/05 None No
12,849 8/31/05 One - 5 Year No
Page 9 of 9
