THIRD AMENDMENT TO LEASE AGREEMENT
Exhibit
10.4
THIRD AMENDMENT TO LEASE
AGREEMENT
AGREEMENT
made as of the 11th day of
November, 2003 by and between MITCHMAR ATLANTA PROPERTIES, INC., a
Delaware Corporation having its principal office at c/o Jacobson Family
Investments, 000 Xxxx 00xx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, XX 00000 (hereinafter called “Landlord”), and SID TOOL CO., INC., a New York
corporation having its principal office at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000 (hereinafter called “Tenant”).
RECITALS
WHEREAS,
Landlord and Tenant entered into an Agreement of Lease dated as of July 13,
1989, as amended by a First Amendment to Lease dated as of August 10, 1996 and
Second Amendment to Lease dated as of March, 2003 (collectively the “Lease”) for
the lease of the 376,738 square foot building (the “Building”) and an additional
148,000 square foot space (to be added to the Building by Tenant pursuant to the
Second Amendment of Lease) located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxx together with two building lots known as Parcel A and Parcel B as shown
on Exhibit A attached hereto and made a part hereof (the “Demised Premises” or
“Premises”); and
WHEREAS,
Landlord and Tenant desire to amend the Lease as hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE
I
Definitions
1.1 The
recitals are specifically incorporated into the body of this Agreement and shall
be binding upon the parties hereto.
1.2 Unless
expressly set forth to the contrary and except as modified by this Agreement,
all capitalized or defined terms shall have the meanings ascribed to them in the
Lease.
ARTICLE
II
Lease
Modifications
2.1 Operating
Expenses. Effective as of the date hereof, Paragraph 48a(1) of
the Lease, is hereby modified and amended by deleting such paragraph and
inserting the following:
(a) For
the purpose of this Lease,
(1) “Operating
Expenses” shall mean any and all costs and expenses (excluding Taxes) paid or
incurred by Tenant in connection with the operation, servicing, maintenance and
repair of the Building (or any part thereof) of which the Demised Premises is a
part and the parking lots and other facilities appurtenant thereto or used in
connection therewith
(collectively,
the “Facility”). Tenant agrees to enter into contracts directly with the
appropriate companies and/or agencies to operate, service, maintain and repair
the Building, as Landlord shall deem reasonably necessary. Tenant shall provide
Landlord copies of all such contracts and/or other forms of proof of compliance
with this paragraph. Operating Expenses shall include, without limitation, the
following:”
2.1.1 Operating
Expenses. Effective as of the date hereof, Paragraph 48b is
deleted in its entirety and the following shall be inserted;
“Tenant
shall pay the amount of the Operating Expenses for such Operating Year directly
to the appropriate company and/or agency which provides such
service.”
2.1.2 Insurance. Effective
as of the date hereof, Paragraph 55(a) of the Lease is hereby modified and
amended by inserting “Tenant covenants and represents that during the entire
term of this Lease it will provide and keep in force for the benefit of Owner
and others hereafter named by Owner from time to time fire and extended
coverage, rent casualty, boiler, sprinkler and any other insurance Landlord
shall reasonably require Tenant to carry, but in no event shall such insurance
be less than the full replacement value.”
ARTICLE
III
Broker
3.1 Tenant
represents that this Agreement was not brought about by any broker and all
negotiations with respect to this Agreement were conducted exclusively between
Landlord and Tenant. Tenant agrees that if any claim is made for
commissions by any broker through or on account of any acts of Tenant, Tenant
will hold Landlord free and harmless from any and all liabilities and expenses
in connection therewith, including Landlord’s reasonable attorney’s fees and
disbursements.
ARTICLE
IV
Ratification
4.1 Tenant
represents and warrants that the Lease is presently in full force arid effect,
that no event of default has occurred on the part of Landlord and that Tenant
has no defense or right of offset in connection with Landlord’s performance
under the Lease to this date.
4.2 The
parties hereby ratify and confirm all of the terms, covenants and conditions of
the Lease, except to the extent that those terms, covenants and conditions are
amended, modified or varied by this Agreement. If there is a conflict between
the provisions of the Lease and the provisions of this Agreement, the provisions
of this Agreement shall control.
4.3 This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and/or assigns.
IN
WITNESS WHEREOF, the parties have executed this Lease Modification and Extension
Agreement as of the day and year first above written.
MITCHMAR ATLANTA
PROPERTIES, INC.
By:__________________________________
Name: J.
Xxxxxx Xxxxx
Title: Secretary
SID TOOL CO.,
INC.
By:_________________________________
Name: Xxxxxxx
X. Xxxxx
Title: V.P. Finance
