THIRD AMENDMENT OF LEASE
THIS THIRD AMENDMENT OF LEASE ("Amendment") is dated the 22nd day of
November, 2005, by and between 000 XXXXX XXXXXX, XXX, x Xxx Xxxxxx limited
liability company having a place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 ("Landlord") and XXXXXX ELECTRONICS, INC. a New York corporation,
formerly known as The Xxxxxx Group, Inc., having a place of business at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Tenant")
RECITALS
A. Landlord's predecessor and Tenant entered into a certain Agreement of Lease,
dated April 26, 1996, modified by a certain First Amendment of Lease, dated as
of November 27, 2001 and Landlord and Tenant entered into a certain Second
Amendment of Lease, dated as of June 24, 2002 (collectively, the "Lease") for
the premises consisting of 3,928 rentable square feet in the building known as
and by the street address 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx (the "Leased
Premises").
B. Pursuant to the Lease, the term expires on January 31, 2006, or such earlier
date upon which the term may expire or be terminated pursuant to any conditions
of limitation or other provisions of the Lease, or pursuant to law.
C. Landlord and Tenant desire to extend the term of the Lease for a period of
three (3) years, and to grant the Tenant an option to extend the Lease, and
otherwise amend and modify the Lease, all pursuant to the terms hereof.
NOW THEREFORE, in consideration for the mutual premises herein set forth,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Recitals Incorporated. The Recitals hereinabove are incorporated herein by
reference, as if set forth at length herein.
2. Term Extended. Section 2.02 of the Lease is hereby modified and amended to
provide that the Termination Date is January 31, ------------- 2009.
3. Basic Rent. Section 3.01 of the Lease is hereby modified and amended to
provide that the Basic Rent, calculated at an annual rate, from February 1, 2006
through and including January 31, 2009 is THIRTY-THREE THOUSAND THREE HUNDRED
EIGHTY-EIGHT ($33,388.00) DOLLARS, payable monthly, in advance, on the first day
of each month in the amount of TWO THOUSAND SEVEN HUNDRED EIGHTY-TWO and 34/100
hundredths ($2,782.34) DOLLARS.
4. Address of Landlord for Payment of Rent. Section 3.02 of the Lease is hereby
modified to provide that all Rents are to be paid to the Landlord at the
following address, until Tenant is otherwise notified by Landlord:
000 Xxxxx Xxxxxx L.L.C.
x/x Xxx Xxxxxxxxx Xxxxxxxxx
X0 Xxx 0000
Xxxxxxxxxx, Xxx Xxxx 00000
5. Condition of Leased Premises. Tenant acknowledges that it is in occupancy and
possession of the Leased Premises, and hereby accepts them in their "as is"
physical condition and state of repair as of the date hereof. Landlord shall
have no obligation to perform any work in the Leased Premises, except that
Landlord shall replace two (2) roof top HVAC units.
6. Broker. Tenant represents that no real estate broker other than SBWE, Inc.
(the "Broker") is responsible for bringing about and negotiating this Third
Amendment, and Tenant has not dealt with any other broker, agent, leasing
consultant, finder, or any other or similar person in connection with the
consummation of this Third Amendment.
In accordance with the foregoing representation, Tenant agrees to defend
indemnify and hold harmless the Landlord, its affiliates and subsidiaries,
partners and officers from any claim, legal action, cost expense or liability,
including attorney's fees arising out of any claim for commission or other
compensation by any person or entity other than the Broker claiming or alleging
to have acted on behalf of or in connection with Tenant in connection with this
Third Amendment.
7. Option To Extend.
a. Upon expiration of the term of the Lease as set forth in paragraph 2
hereof Tenant shall have the right and option to extend the term of the Lease
for one (1) period of three (3) years (the "Extended Term"). The right and
option to extend the term of the Lease shall be subject to and contingent upon
the satisfaction of each and every condition set forth hereinafter. Tenant's
right and option to extend the term of the Lease shall be exercisable by Tenant
giving written notice of the exercise of the right and option to Landlord at
least nine (9) months prior to the expiration of the original term as set forth
in Article 2. In the event Tenant fails to give written notice of its intention
to exercise its right and option as provided above within the stated time
period, Tenant's right and option to extend the term of the Lease shall (upon
the date by which written notice should have been received by Landlord) be
deemed to have been waived by Tenant and shall be of no further force or effect.
In the event Tenant exercises its right and option in accordance with the
provisions hereof, the term of the Lease shall be extended accordingly, and all
references contained in the Lease to the term shall be construed to refer to the
original term of the Lease, as extended, whether or not specific reference is
made thereto in the Lease. Except with respect to the rent payable during the
Extended Term and unless otherwise expressly provided to the contrary, the
Extended Term of the Lease shall be upon the same terms, conditions and
covenants as set forth in the Lease except, at the end of the Extended Term
there shall be no further right or option to further extend the term of the
Lease. It is important to Landlord that it know whether or not the option is
exercised by Tenant so that it may seek a replacement tenant to avoid loss of
rent, and therefore, the time within which the option must be exercised is
hereby made of the essence. The right and option to extend the term of the Lease
shall be subject to and contingent upon the satisfaction of each and every one
of the following conditions:
(i) The Tenant shall not have assigned the Lease nor subleased all or a
portion of the Leased Premises;
(ii) The Lease is in full force and effect;
(iii) Tenant shall not be in material default under any of the terms,
provisions, covenants and conditions of the Lease; and
(iv) In lieu of the sums set forth in Article 4a of this Lease, the annual
installments of minimum rent to be paid by Tenant during the option period shall
be the greater of fair market rent or $ 33,388.00 (the basic annual rent paid by
the Tenant in the year of the Lease immediately preceding this renewal), but in
no event shall the minimum annual rent be less than the basic annual rent paid
by the Tenant in the year of the Lease immediately preceding this renewal,
notwithstanding that fair market rent shall be lower. Rent shall be determined
as follows:
Within twenty (20) days after Landlord receives Tenant's notice, Landlord shall
submit to Tenant, in writing, its determination of fair market rent. Within ten
(10) days after Tenant receives the fair market rental figure, Tenant shall have
the right to dispute the rent by written notice received by Landlord within the
ten (10) day time period. Failure by Tenant to dispute the rent in this manner
shall be deemed, automatically and conclusively, an acceptance by Tenant of the
rent submitted. Within ten (10) days after Landlord receives Tenant's notice
disputing the rent, Landlord and Tenant shall each designate an independent,
qualified commercial real estate appraiser or expert, who regularly conducts
business in Bergen County and who is familiar with Bergen County
Industrial/Office rentals, for the purpose of having them agree on the then fair
market rent for the Leased Premises which shall be the rental then being
collected by owners of other properties for new Leases of space reasonably
comparable in type, size, location and usage to the Leased Premises within
Bergen County, New Jersey, for a term of approximately three years with similar
tenant expense assumptions and contributions. In the event that the two
designees cannot agree upon one figure, then the designees shall select a third
person with comparable qualifications, and the agreement of two of the three
designees shall prevail, or if two cannot agree, the average of their three
rents shall prevail. Landlord and Tenant shall each pay the fees and expenses of
their own designee, and they shall share, equally, the fees and expenses of the
third; and the greater of the basic annual rent paid by the Tenant in the year
of the Lease immediately preceding this renewal or the fair market rent so
determined shall be the annual fixed minimum rental payable for the option term.
~n their determination of fair market rental, the designees shall not be limited
to ascertain the same amount of rent for each year, but may escalate the rent in
years subsequent to the first year of the extended term, provided, however, in
no such year of the extended term shall the rent be an amount less than the
basic annual rent paid by the Tenant in the year of the Lease immediately
preceding such renewal. If Tenant gives notice of the exercise of its option
more than ten (10) months prior to the expiration of the original term, then
Landlord shall have until eight (8) months prior to the expiration of the
original term to submit its determination of fair market rent.
(v) The Landlord and Tenant shall execute and deliver to each other a
written statement of the rent for the extended term when determined as herein
provided.
8. Address of Landlord for Notice. Section 29.08 of the Lease is hereby modified
to provide that any and all Notices to Landlord should be sent to the following
address, until Tenant is otherwise notified by Landlord:
000 Xxxxx Xxxxxx L.L.C.
c/o NAI Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
9. Security Deposit. The amount of the security deposit is hereby increased to
$5,566. Landlord is currently holding $4,910.00 as a security deposit.
Accordingly, upon execution of this Amendment, Tenant shall deposit with
Landlord $656.00, to be added to the amount of the security deposit currently
held by Landlord. The security deposit shall continue to be held by Landlord in
accordance with Section 28.01 of the Lease.
10. Lease Ratified. Except as herein amended and modified, the Lease is hereby
ratified and confirmed and all other provisions of the Lease will remain in full
force and effect. In the event of any conflicts between the provisions of this
Amendment and the provisions of the Lease, the provisions of this Amendment
shall govern and prevail.
11. Amendment Binding. This Amendment shall be binding upon and shall be for the
benefit of the parties hereto, and their respective successors and assigns.
Executed by the parties hereto as of the day first above set forth.
Landlord:
000 Xxxxx Xxxxxx L.L.C.
By: The Hampshire Generational Fund LLC
By: Hampshire Partners II. LLC,
its Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Tenant:
Xxxxxx Electronics, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
