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Exhibit 10.4
FIRST AMENDMENT OF LEASE
This FIRST AMENDMENT OF LEASE is made as of the 30th day of June, 1998
between PW/MS OP SUB I, LLC, a Delaware limited liability company ("Landlord"),
having an address at PW/MS Management Co., Inc. x/x Xxxx & Xxxxxxxxx, XXX,
Xxxx Xxxxxx at Xxxxxx County, 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxx
Xxxxxx 00000-0000 and THE XXXXXX GROUP, INC., a New Jersey corporation, having
an address at 0 Xxxxxxx Xxxxx, Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx 00000
(hereinafter called "Tenant").
WITNESSETH:
WHEREAS:
A. Centburg Realty Associates, L.P., predecessor-in-interest to Landlord,
and Tenant heretofore entered into a certain lease dated July 31, 1997, (said
lease as it may have been or may hereafter be amended is hereinafter called the
"Lease") with respect to a portion of the first (1st) floor ("Demised
Premises") in the office building known as and located at 0 Xxxxxxx Xxxxx,
Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx;
B. Tenant is desirous of (1) increasing the size of the Demised Premises by
the addition of some 10,187 rentable square feet ("Additional Space") on the
second (2nd) floor of the Building, as illustrated on Schedule A, attached
hereto and made a part hereof and (2) extending the expiration date of the
Lease; and
C. The parties hereto desire to further modify the Lease in certain other
respects.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto modify the Lease as follows:
1. DEFINITIONS. Except as otherwise provided in this First Amendment of
Lease, all defined terms contained in this First Amendment of Lease shall, for
the purposes hereof, have the same meaning ascribed to them in the Lease.
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2. TERM. Notwithstanding anything to the contrary contained in the Lease,
the date set for the expiration of the term thereof is hereby modified so that
the Expiration Date shall be, and the Initial Term shall end on, January 31,
2002. Landlord may deliver to Tenant a notice ("commencement Date Notice")
confirming, among other things, the revised Expiration Date. If Landlord so
delivers to Tenant's Commencement Date Notice, Tenant shall execute same and
return it to Landlord within five (5) days after Tenant's receipt thereof.
Landlord's failure to timely receive from Tenant at least one (1) fully
executed original counterpart of the Commencement Date Notice shall constitute
Tenant's express consent with and agreement to all the terms contained in the
Commencement Date Notice as prepared by Landlord.
3. ADDITIONAL SPACE. The Demised Premises shall be deemed to include the
Additional Space on July 1, 1998. As of July 1, 1998, Exhibit A to the Lease
shall be deemed supplemented by Schedule A, attached hereto and made a part
hereof.
4. RENT. The Lease is hereby amended to provide that the Tenant shall pay
minimum rent ("Minimum Rent") at the annual rate of:
(i) FOUR HUNDRED SIXTY EIGHT THOUSAND SEVEN HUNDRED THIRTY FIVE AND
00/100 DOLLARS ($468,735.00) for the period beginning on July 1, 1998
and ending on August 31, 1998, payable in advance on the first day of
each calendar month in equal monthly installments of THIRTY NINE
THOUSAND SIXTY ONE AND 25/100 DOLLARS ($39,061.25);
(ii) FOUR HUNDRED NINETY SEVEN THOUSAND FORTY SEVEN AND 00/100 DOLLARS
($497,047.11) for the period beginning on September 1, 1998 and ending
on January 31, 1999, payable in advance on the first day of each
calendar month in equal monthly installments of FORTY ONE THOUSAND
FOUR HUNDRED TWENTY AND 58/100 DOLLARS ($41,420.58);
(iii) FIVE HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED TWENTY ONE AND
00/100 DOLLARS ($517,421.00) for the period beginning on February 1,
1999 and ending on August 31, 1999, payable in advance on the first
day of each calendar month in equal monthly installments of FORTY
THREE THOUSAND ONE HUNDRED EIGHTEEN AND 42/100 DOLLARS ($43,118.42);
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(iv) FIVE HUNDRED FORTY FIVE THOUSAND SEVEN HUNDRED THIRTY THREE AND
00/100 DOLLARS ($545,733.00) for the period beginning on September 1,
1999 and ending on August 31, 2000, payable in advance on the first day
of each calendar month in equal monthly installments of FORTY FIVE
THOUSAND FOUR HUNDRED SEVENTY SEVEN AND 75/100 DOLLARS ($45,477.75);
and
(v) FIVE HUNDRED EIGHTY FOUR THOUSAND TWO HUNDRED THIRTY TWO AND
00/100 DOLLARS ($584,232.00) for the period beginning on September 1,
2000, and ending on the Expiration Date, payable in advance on the
first day of each calendar month in equal monthly installments of
FORTY EIGHT THOUSAND SIX HUNDRED EIGHTY SIX AND 00/100 DOLLARS
($48,686.00).
5. DEMISED PREMISES. As of July 1, 1998, the Lease shall be deemed to
provide that (i) the Demised Premises contain a floor area of 24,343 rentable
square feet of which 14,156 rentable square feet are on the first (1st) floor of
the Building and 10,187 rentable square feet are on the second (2nd) floor of
the Building and (ii) Tenant's Occupancy Percentage is 24.33 percent.
6. BROKER. Tenant represents that it has had no dealings or
communications with any real estate broker or agent in connection with this
First Amendment of Lease, except for Xxxxx Xxxxx of CB Xxxxxxx Xxxxx. Tenant
agrees to pay, defend, indemnify and hold Landlord, its partners, directors,
officers and their affiliates and/or subsidiaries harmless from and against any
and all costs, expenses or liability (including attorney's fees, court costs
and disbursements) for any commission or other compensation claimed by any
broker or agent, except for Xxxxx Xxxxx of CB Xxxxxxx Xxxxx.
7. AUTHORITY. Tenant represents that the undersigned officer of the
Tenant corporation has been duly authorized on behalf of the Tenant corporation
to enter into this First Amendment of Lease in accordance with the terms,
covenants and conditions set forth herein, and, upon Landlord's request, Tenant
shall deliver an appropriate certification by the Secretary of the Tenant
corporation to the foregoing effect.
8. NO ORAL CHANGES. This First Amendment of Lease may not
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be changed orally, but only by a writing signed by both Landlord and Tenant.
9. PHYSICAL CONDITION. (A) Tenant acknowledges that it is in occupancy of
the Demised Premises and hereby accepts the Demised Premises, including the
Additional Space, in their "as is" physical condition and state of repair as of
July 1, 1998. In this regard, Landlord shall have no obligation to do any work,
perform any services or grant any construction allowances, except as otherwise
provided to the contrary in Section 9.(B) hereof.
(B) Landlord, at no cost to Tenant, shall, using Building standard means,
methods, materials and manpower, once (1) demise the Demised Premises and (2)
construct a new entrance to that portion of the Demised Premises on the second
(2nd) floor of the Building. As per Schedule A-1.
10. RATIFICATION. Except as expressly amended by this First Amendment of
Lease, the Lease, and all terms, covenants and conditions thereof, shall remain
in full force and effect and is hereby in all respects ratified and confirmed.
11. PARKING. At all times after July 1, 1998, Section 1.1(q) of the Lease
shall be modified to provide that Tenant's License for Allotted Parking shall
be for up to ninety six (96) cars. As of July 1, 1998, ten (10) parking spaces
of the Allotted Parking shall be Designated Spaces.
12. NO DEFAULT. Tenant confirms that (i) Landlord has fully complied with
all of its obligations contained in the Lease and (ii) no event has occurred
and no condition exists which, with the passage of time or the giving of
notice, or both, would constitute a default by Landlord under the Lease.
13. RENEWAL OPTION. As of the date hereof, Tenant shall have only one (1)
option to renew the Lease pursuant to Article 51 of the Lease for a single
additional term of five (5) years commencing on February 1, 2002 and ending on
January 31, 2007.
14. ADDITIONAL SECURITY DEPOSIT. Tenant shall deposit with Landlord on the
date hereof the sum of THIRTY THOUSAND NINE HUNDRED THIRTY FIVE AND 83/100
DOLLARS ($30,935.83) as additional
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security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of the Lease. As of the date Landlord first holds a
security deposit from Tenant equal to SEVENTY EIGHT THOUSAND ONE HUNDRED TWENTY
TWO AND 50/100 DOLLARS ($78,122.50), Section 1.1(o) of the Lease shall be
deemed to define Security as SEVENTY EIGHT THOUSAND ONE HUNDRED TWENTY TWO AND
50/100 DOLLARS ($78,122.50), not FORTY SEVEN THOUSAND ONE HUNDRED EIGHTY SIX
AND 67/100 DOLLARS ($47,186.67).
15. NON-BINDING DRAFT. The mailing or delivery of this document or any
draft of this document by Landlord or its agent to Tenant, its agent or
attorney shall not be deemed an offer by the Landlord on the terms set forth in
this document or draft, and this document or draft may be withdrawn or modified
by Landlord or its agent at any time and for any reason. The purpose of this
section is to place Tenant on notice that this document or draft shall not be
effective, nor shall Tenant have any rights with respect hereto, unless and
until Landlord shall execute and accept this document. No representations or
promises shall be binding on the parties hereto except those representations
and promises contained in a fully executed copy of this document or in some
future writing signed by Landlord and Tenant.
16. NEW BASE YEAR FOR TAXES. For purposes of computing the additional
rent accruing on and after July 1, 1998 that is due Landlord under Section
6.1(a) of the Lease, as of July 1, 1998, (A) Section 1.1(j) of the Lease shall
be deleted and replaced with the following new Section 1.1(j): "First Operating
Year and First Tax Year shall mean the calendar year ending on December 31,
1998 and (B) Section 1.1(i) of the Lease shall be deleted and replaced with the
following new Section 1.1(i):
BASE TAXES: The amount determined by multiplying (a) the real
estate tax rate in effect on July 1, 1998 and (b) the
assessed valuation of the Real Estate for the calendar
year ending December 31, 1998, as such assessed
valuation is or may be ultimately determined by final
administrative or judicial pro-
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ceeding, or by abatement by an
appropriate taxing authority.
17. NEW BASE YEAR FOR BUILDING OPERATING COSTS. For purposes of computing
the additional rent accruing on and after July 1, 1998 that is due Landlord
under Section 6.2(a) of the Lease, as of July 1, 1998, Section 6.1(a) of the
Lease shall be deleted and replaced with the language recited in Paragraph
16.(A) of this First Amendment of Lease.
18. NOTICES. As of the date hereof, the following provision from Section
47.3 NOTICES of the Lease shall be deemed deleted:
Bellemead Management Co., Inc.
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Legal Department
and shall be replaced by the following new provision:
PW/MS QP SUB I, LLC
PW/MS Management Co., Inc.
x/x Xxxx & Xxxxxxxxx, XXX
Xxxx Xxxxxx xx Xxxxxx Xxxxxx
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxxxx Xxxx, Esq.
General Counsel
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment of
Lease to be executed on the day and year first written above.
Signed and delivered
LANDLORD:
WITNESSED BY: PW/MS OP SUB I, LLC
By: PW/MS Management Co., Inc.
By: Xxxx & Xxxxxxxxx, LLC
/s/ Xxxx Xxxxxxx Xxxx, Esq. /s/ Xxxx Xxxx
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Xxxx Xxxxxxx Xxxx, Esq. Xxxx Xxxx
Corporate Secretary President
ATTESTED BY: AGENT FOR LANDLORD:
PW/MS MANAGEMENT CO., INC.
By: Xxxx & Wentworth, LLC
/s/ Xxxx Xxxxxxx Xxxx, Esq. /s/ Xxxx Xxxx
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Xxxx Xxxxxxx Xxxx, Esq. Xxxx Xxxx
Corporate Secretary President
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ATTESTED BY: TENANT:
THE XXXXXX GROUP, INC.
/s/ XXXXXX X. XXXXXXXXX By: /s/ XXXXX XXXXXX
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Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxx
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(Please Print) (Please Print)
Title: Corporate Secretary Title: CEO
Vice President & CFO ----------------------
(Please Print)
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SCHEDULE A
Floor Plan of 10,187 Rentable Square Foot Additional Space on the Second Floor
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SCHEDULE A
[FLOOR PLAN]
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SCHEDULE A-1
[Main Entrance/Partial Demising Wall Floor Plan]
