FIFTH MODIFICATION OF LEASE
AGREEMENT, made this 16th day of October, 1996, by and between XXXXXX
X. XXXXX, XXXXXX X. XXXXX, XXXX X. XXXXXX, AS TRUSTEE UNDER TRUST ESTABLISHED
PURSUANT TO ARTICLE IV OF THE LAST WILL AND TESTAMENT OF XXXXXX X. XXXXXX (as
successor-in-interest to Xxxxxx X. Xxxxxx), XXXXX 1985 FAMILY PARTNERSHIP, and
XXXX X. XXXXXX, having their office and Post Office Address c/o National Realty
& Development Corp., 0 Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Landlord") and OSTEOTECH INC., a Delaware
corporation, having an office at 00 Xxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant are parties to that certain Lease dated
August 18, 1986 as modified by First Modification of Lease dated May 31, 1989,
Second Modification of Lease dated December 22, 1989, Third Modification of
Lease dated June 21, 1991 and Fourth Modification of Lease dated January 30,
1992 between Landlord and Tenant (said lease as modified is hereinafter referred
to as the "Lease") respecting certain premises (hereinafter referred to as the
"DEMISED PREMISES") within the buildings commonly known as 0000 Xxxxxxxxxx
Xxxxxx and 0000 Xxxxxxxxxx Xxxxxx (the "Buildings") in the BOROUGH OF
SHREWSBURY, COUNTY OF MONMOUTH and STATE OF NEW JERSEY which premises are more
particularly described in the Lease; and
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WHEREAS, the parties hereto desire to extend and further modify the
Lease in certain respects as hereafter provided.
NOW, THEREFORE, in consideration of ONE AND 00/100 ($1.00) DOLLAR and
other good and valuable consideration, each to the other in hand duly paid, the
receipt and sufficiency whereof is hereby acknowledged, it is mutually agreed as
follows:
1. The term of the Lease is hereby extended to February 28, 2007
("Expiration Date"), upon the same terms, covenants, conditions and provisions
set forth in the Lease, except as hereinafter set forth.
2. From and after March 1, 1997 and continuing through the Expiration
Date, the annual minimum rental payable pursuant to Article 3 of the Lease, and
in accordance with and subject to the provisions of the Lease, shall be as
follows (except as otherwise provided in Paragraph 3 hereof):
(A) From March 1, 1997 through February 28, 2002: TWO HUNDRED
THIRTY EIGHT THOUSAND NINE HUNDRED TWENTY AND 00/100
($238,920.00) DOLLARS per annum - NINETEEN THOUSAND NINE
HUNDRED TEN AND 00/100 ($19,910.00) DOLLARS per month; and (B)
From March 1, 2002 through the Expiration Date: TWO HUNDRED
SIXTY THOUSAND SIX HUNDRED FORTY AND 00/100 ($260,640.00) per
annum - TWENTY ONE THOUSAND SEVEN HUNDRED TWENTY AND 00/100
($21,720.00).
3.(a) If at any time Landlord shall enter into discussions
with any person or entity for the leasing of the premises
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consisting of approximately 7,040 square feet situated at 0000 Xxxxxxxxxx Xxxxxx
presently occupied by Xxxxxx Park Press (such premises being cross-hatched on
the plan annexed hereto as Exhibit A and hereinafter referred to as the
"Additional Premises"), then, (i) provided that this Lease is then in full force
and effect, (ii) Tenant shall not be in default hereunder, (iii) there has been
no act or omission by Tenant which, with the passage of time or the giving of
notice or both, would constitute a default hereunder and (iv) Landlord has not
at any prior time given a Landlord's Notice (as hereinafter defined), Landlord
shall give Tenant notice that Landlord has entered into discussions for the
leasing of the Additional Premises (herein referred to as "Landlord's Notice").
Thereupon, Tenant shall have the option, exercisable within, but in no event
later than, thirty (30) days after the date on which Landlord shall first give
Landlord's Notice to Tenant, time of the essence, to elect by written notice
given to Landlord within said period (hereinafter referred to as "Tenant's
Notice"), to lease the Additional Premises upon and subject to the terms,
provisions, covenants and conditions hereinafter set forth. In the event that
Tenant shall fail to send Tenant's Notice within said thirty (30) days period,
Landlord shall thereafter be free to enter into a lease with such other person
or entity for the leasing of the Additional Premises and Tenant shall have no
further rights under this provision.
3(b). In the event Tenant shall duly and timely exercise
the option specified in Paragraph 3(a) above, then Tenant's lease
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and occupancy of the Additional Premises shall be deemed to be upon and subject
to all of the following terms, provisions, covenants and conditions:
i. The Additional Premises Commencement date shall be the date upon
which possession of the Additional Premises is delivered to Tenant in "as-is"
broom-clean condition.
ii. From and after the Additional Premises Commencement Date, the
annual minimum rental payable under this Lease shall be as follows:
(A) From the Additional Premises Commencement Date
through February 28, 2002: TWO HUNDRED NINETY SEVEN
THOUSAND AND 00/100 ($297,000.00) DOLLARS per annum
- TWENTY FOUR THOUSAND SEVEN HUNDRED FIFTY AND
00/100 ($24,750.00) per month; and
(B) From March 1, 2002 through the Expiration Date: THREE
HUNDRED TWENTY FOUR THOUSAND AND 00/100 ($324,000.00)
DOLLARS per annum - TWENTY SEVEN THOUSAND AND 00/100
($27,000.00) per month.
iii. The Additional Premises shall be included in determining and
calculating Tenant's obligations for the payment and/or reimbursement to
Landlord or otherwise of all additional rent, charges or other monies due or
payable by Tenant under the Lease.
iv. Upon the Additional Premises Commencement Date the
Additional Premises shall be deemed to be added to and then and
thereafter to form a part of the Demised Premises.
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v. The extension option provided for in Paragraph 4 below shall be
deemed to apply to the entire Demised Premises, inclusive of the Additional
Premises, and any exercise of such extension option shall be deemed to mean that
Tenant shall have elected to continue the Lease as to the entire Demised
Premises, inclusive of the Additional Premises.
vi. Exhibit A presently annexed to the Lease shall be deleted
therefrom, and the Exhibit A annexed hereto shall be substituted in
lieu thereof.
3(c). The parties shall execute, acknowledge and deliver to each other
all such documents as may be necessary to modify the Lease as contemplated by
the provisions of this Paragraph within ten (10) days following request by
either party.
3(d). Landlord acknowledges that the exercise by Tenant of its rights
under this Paragraph shall not increase the amount of the security deposit
required under the Lease. Landlord further acknowledges that the amount of the
security deposit presently held by the Landlord is in accordance with the
requirements of the Lease, as modified to date.
4.(a) Tenant shall have the option, provided it is not in
default hereunder, to extend the term of this Lease for ONE (1)
successive additional term of FIVE (5) years, upon the same terms
and conditions as provided herein, except that the annual minimum
rental during said extension period shall be as provided below, and
except that Tenant shall have no further extension options. Tenant
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shall give written notice to Landlord ("Tenant's Extension Notice") on or prior
to that date which is twelve (12) months prior to the Expiration Date of its
election to extend the term hereof or such option shall be deemed waived. If
Tenant shall exercise such extension option, the parties will, at the request of
either, execute an agreement in form for recording, evidencing such extension.
If Tenant shall exercise such extension option, all references in this Lease to
the term hereof shall be deemed to mean the term as so extended, except where
expressly otherwise provided.
(b) If Tenant shall duly and timely elect to extend the term of this
Lease, the annual minimum rental payable by Tenant for the extension term of
this Lease shall be that amount which is the then fair market rental value for
the Demised Premises which would be payable over the entire extension term of
this Lease (hereinafter referred to as the "fair rental value"). Within
forty-five (45) days following receipt of Tenant's Extension Notice that has
been duly and timely given in accordance with the terms hereof, Landlord shall
serve upon Tenant Landlord's determination of the annual minimum rental which
would be payable over the entire extension term ("Landlord's Determination").
Tenant shall have the right, within thirty (30) days after receipt of Landlord's
Determination, time of the essence, to dispute Landlord's Determination by
giving written notice to Landlord specifying the basis of Tenant's dispute
("Tenant's Dispute Notice"). In the event Tenant shall not give Tenant's Dispute
Notice within the time period provided, Tenant shall be deemed to have waived
its right to
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dispute Landlord's Determination and the annual minimum rental payable during
said extension term shall be as set forth in Landlord's Determination. In the
event of such dispute, Landlord and Tenant agree to cooperate with each other
and may use all information and means reasonably available in order to agree
upon the said fair rental value. In the event that for any reason whatsoever the
annual minimum rental payable during the extension term shall not have been
determined prior to the commencement of said extension term, Tenant shall
thereafter pay to Landlord (as annual minimum rental prior to such
determination) the minimum extension rental (as hereinafter defined) in equal
monthly installments, with a proper apportionment to be made after final
determination of the fair rental value to be paid during the extension term.
Notwithstanding anything contained in this Paragraph 4 to the contrary, in no
event shall the annual minimum rental payable by Tenant during the extension
term be less than the annual minimum rental payable by Tenant during the last
year prior to the Expiration Date (hereinafter referred to as the "minimum
extension rental").
(c) At any time following Landlord's receipt of Tenant's Dispute
Notice, either party may, without prejudice to any rights or ongoing
negotiations between the parties, request by notice to the other party (the
"Arbitration Notice") informal arbitration to determine the fair rental value
for said extension term. Said Arbitration Notice shall state the name and
address of the arbitrator picked by the party serving same, it being understood
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and agreed that any arbitrator picked pursuant to this Paragraph shall be a fair
and impartial MAI member real estate appraiser having not less than ten (10)
years experience with similar office/distribution buildings within Monmouth
County, New Jersey similar in nature to the Buildings. Upon receipt of said
Arbitration Notice, the party receiving same shall have ten (10) days in which
to appoint a second arbitrator and to give notice to the other party of the
same, said notice to set forth the name and address of the second arbitrator. In
the event said other party fails to appoint a second arbitrator within the
specified time period, said other party shall be deemed to have waived its right
to appoint a second arbitrator and the first arbitrator shall act as hereinafter
set forth (and in such event all references hereafter to "arbitrators" or
"second arbitrator" shall be deemed to mean the first arbitrator acting alone).
Thereafter, the arbitrators shall meet together and determine, within ten (10)
days after the second arbitrator is appointed, the fair rental value for said
extension term. If said arbitrators are unable to agree within said ten (10) day
period on the fair rental value, then said arbitrators shall, within ten (10)
days thereafter, mutually agree upon a third arbitrator. Within ten (10) days
after appointment of the third arbitrator, the arbitrators shall meet together
and agree upon the fair rental value for said extension term. If the arbitrators
appointed by the parties are unable to agree on a third arbitrator, the third
arbitrator shall be appointed by application to the Superior Court, Monmouth
County, New Jersey. In the event
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of the failure, refusal or inability of any arbitrator to act, an arbitrator
shall be appointed in his stead, which appointment shall be made in the same
manner as hereinbefore provided for the appointment of such arbitrator so
failing, refusing or unable to act. The decision of the arbitrators appointed
and acting hereunder shall in all cases be final, binding and conclusive upon
the parties. Each party shall pay the expenses of the arbitrator appointed by it
and the parties shall share equally the expenses of the third arbitrator.
5. Except as expressly modified herein, all of the provisions,
covenants, conditions and agreements set forth in the Lease shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties have caused this Fifth Modification of
Lease to be executed as of the day and year first above written.
/s/ Xxx Xxxxxx /s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX Individually and as
Managing General Partner of Xxxxx
1985 Family Partnership
/s/ Xxxxxxx Xxxxxx /s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX as Trustee under Trust
established pursuant to Article IV
of the Last Will and Testament of
Xxxxxx X. Xxxxxx
/s/ Xxxxxxxxx XxXxxxxxx /s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
/s/ Xxx Xxxxxx /s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX
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ATTEST: OSTEOTECH INC.
By: Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
X-00
XXXXX XX XXX XXXX)
SS:
COUNTY OF WESTCHESTER)
BE IT REMEMBERED, that on this 25th day of October, 1996, before me,
the subscriber personally appeared XXXXXX X. XXXXX, Individually, and as
Managing General Partner for Xxxxx 1985 Family Partnership, and as
Attorney-in-fact for Xxxx X. Xxxxxx, who I am satisfied is the person named in
and who signed the within instrument, and, thereupon he acknowledged that he
signed, sealed and delivered the same as his act and deed, for the uses and
purposes therein expressed.
/s/ Xxxxxxx X. Xxxxxxx
NOTARY PUBLIC
STATE OF FLORIDA)
SS:
COUNTY OF BROWARD)
BE IT REMEMBERED, that on this 22nd day of October, 1996, before me,
the subscriber personally appeared XXXX X. XXXXXX, AS TRUSTEE UNDER TRUST
ESTABLISHED PURSUANT TO ARTICLE IV OF THE LAST WILL AND TESTAMENT OF XXXXXX X.
XXXXXX, who I am satisfied is the person named in and who signed the within
instrument, and, thereupon he acknowledged that he signed, sealed and delivered
the same as his act and deed, for the uses and purposes therein expressed.
/s/ Xxxx X. Xxxx
NOTARY PUBLIC
STATE OF NEW JERSEY)
SS:
COUNTY OF XXXXXX)
BE IT REMEMBERED, that on this 23rd day of October, 1996, before me,
the subscriber personally appeared XXXXXX X. XXXXX, who I am satisfied is the
person named in and who signed the within instrument, and, thereupon he
acknowledged that he signed, sealed and delivered the same as his act and deed,
for the uses and purposes therein expressed.
/s/ Xxxxxxxxx XxXxxxxxx
NOTARY PUBLIC
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STATE OF NEW JERSEY)
SS:
COUNTY OF MONMOUTH )
BE IT REMEMBERED, that on this 16th day of October, 1996, before me, the
subscriber, A Notary Public of the State of New Jersey, personally appeared
Xxxxxxx X. Xxxxxxxx of OSTEOTECH INC. who, I am satisfied, is the person who
signed the within instrument; and I having first made known to him the contents
thereof, he thereupon acknowledged that he signed, sealed with the corporate
seal, and delivered the said instrument as such officer aforesaid, and that the
within instrument is the voluntary act and deed of said corporation, made by
virtue of the authority of its board of directors.
/s/ Xxxxx Xxxxxxx Xxxxxx
NOTARY PUBLIC
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EXHIBIT A
Map of 0000 Xxxxxxxxxx Xxxxxx facility indicating 22,960 square feet of the
existing premises and 7,040 square feet for the additional premises contained in
one-story office and distribution building.
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