FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") date d May 1, 2000, by and
between Hollister '97, L.L.C., a New Jersey limited liability company, with its
address at 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Landlord")
and BEI Medical Systems Company, Inc., a Delaware corporation, with its offices
at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
RECITALS:
A. Landlord and Tenant have executed and delivered a certain Agreement of
Lease ("Lease") dated January 20, 1998 for certain leased premises
("original leased premises") located at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxx Xxxxxx, Xxx Xxxxxx.
B. Landlord and Tenant desire to amend the Lease to
modify certain provisions.
Now, therefore, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, it is mutually agreed as follows:
1. The Recitals set forth above are hereby incorporated into this
Amendment with the same force and effect as if they had been set forth
herein at length. The words and phrases as defined in the Lease will
have the same meaning in this Amendment.
2. Section 1 of the Lease is hereby amended as follows:
a. Tenant will vacate a portion of the original leased premises and
will continue to occupy approximately 10,926 square feet,
including common use of the vestibule and bathrooms with the
adjacent tenant (hereinafter defined in Section 8 of this
Amendment), which areas will become the leased premises. Exhibit
"A" is hereby amended to substitute Exhibit "A" which is attached
hereto and made a part hereof, and the leased premises will be as
shown in red outlining on Exhibit "A". Tenant shall forever be
released and discharged from any and all obligations and
liabilities under the Lease as they relate to the 13,486 square
feet the Tenant is vacating ("Vacated Space") when both of the
following have occurred (the "Vacated Space Termination Date"),
(i) the Completion Date (defined in the revised Section 13A of
the Lease) has occurred and (ii) Tenant has vacated the Vacated
Space; however, Tenant will remain liable for Rent and tenant
expense contributions for the Vacated Space prorated to the
Termination Date.
b. The number of parking spaces for Tenant's use is reduced to
thirty five (35) parking spaces, and will be located in the area
shown on the attached Exhibit "A". Tenant will use the parking
spaces for passenger automobiles only and not for trucks.
c. Tenant's used of the lease premises is hereby changed so that it
will be limited to light manufacturing and assembly of electronic
instruments for medical applications and related executive and
administrative officers. Tenant will not be permitted to use
heavy production machinery nor will it be permitted to store
and/or use hazardous wastes and material, as defined in ISRA from
time to time (ISRA is defined in Section 34 of the Lease), except
that it may store and/or use hazardous wastes and materials which
are commonly used to clean offices and which are used in normal
business machines (toner, etc.), or such other hazardous wastes
and materials which fall within the New Jersey Department
Environmental Protection's criteria for deminimus quantity
exemptions.
3. Section 2 of the Lease is hereby amended to provide
that the term of the Lease will end on June 30, 2004.
4. Section 2b, which granted an option to extend the term of the Lease, is
hereby deleted in its entirety, and there will be no right of Tenant to
extend the term beyond June 30, 2004.
5. Section 3 is hereby amended to provide that the monthly installments of
fixed minimum annual rent will be as follows beginning on August 1,
2000:
PERIOD MONTHLY INSTALLMENTS
August 1, 2000 to and including March 31, $ 10,179.39
2001
April 1, 2001 to and including March 31, $ 10,015.50
2002
April 1, 2002 to and including June 30, $ 10,926.00
2004
6. Section 3a of the Lease is hereby amended to provide
that all payments shall be payable to Landlord at:
c/o Marcus Associates Property
Management, Inc.
Xxxxx 000
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
7. Section 4 is hereby amended to provide that Tenant's pro rata share of
taxes will be reduced to 6.24%, effective August 1, 2000.
8. Section 5 of the Lease is hereby deleted in its
entirety and the present section is hereby
substituted in its place:
"5. UTILITES. Tenant shall also be responsible for the cost of
any and all utilities, including electricity, water, and gas
consumed at the leased premises, and Tenant shall make payment
directly to the utility companies, except as herein provided
otherwise. Initially, Tenant will have a separate gas meter
which services the leased premises only. Electricity is
metered by a meter which services both the leased premises and
the adjoining premises, to be occupied by X. Xxxxxxxxx, Inc.
(the "adjacent tenant"). Landlord will investigate the cost
and feasibility of installing a new electric meter to service
the leased premises only. In the event Landlord installs a new
electric meter to service the leased premises only, Landlord
shall bear all costs and expenses relative thereto. Until a
separate electric meter has been installed and with regard to
water usage for which the present meter services both the
leased premises and the premises to be occupied by the
adjacent tenant and for which a separate meter will not be
installed, tenant will pay the electricity and water charges
directly to the utility companies, and Tenant will seek
reimbursement directly from the adjacent tenant and in an
amount equal to 54.97% of the total monthly charges. Landlord
will cause the present and all future adjacent tenants to
agree to the matters set forth in this paragraph. In the event
that the space occupied by the present or future adjacent
tenant exceeds approximately 13,338 square feet or in the
event that the use by Tenant or the present or future adjacent
tenant changes so that either uses substantially greater
amounts of electricity and/or water, Landlord will use its
best efforts to bring about an equitable adjustment of the
relative shares of the cost of electricity and/or water to be
borne by each of the two tenants."
9. Section 10 a of the Lease is hereby amended to reduce Tenant's pro rata
share to 6.24% effective August 1, 2000.
10. Section 11 c of the lease is hereby amended to delete the entire
paragraph and to substitute the following in its place:
"c. Tenant's pro rata share of 6.24% was calculated using the
ratio of 10,926 square feet to 175,500 square feet."
11. A new Section 11 d is hereby added as follows;
"d. With regard to the vestibule and bathrooms which will be
shared by the adjacent tenant (the "shared area"), the
adjacent tenant will be responsible for maintenance and repair
thereof and will cause janitorial services to be performed by
an unrelated entity on a nightly basis. The adjacent tenant
will pay for the reasonable costs of such services, and Tenant
will not be obliged to reimburse the adjacent tenant for such
repairs, maintenance and janitorial services. Landlord will
cause the adjacent tenant to agree to these provisions."
12. Section 13 A of the Lease is hereby deleted in its entirety and the
following is substituted in its place:
"A. Tenant, at Tenant's expense, will construct (i) a demising
wall (the "demising wall") of double 5/8" fire-rated sheetrock
with sound baffling insulation to separate the leased premises
to be occupied by the adjacent tenant and (ii) doors to
separate the leased premises from the adjacent premises. the
construction will be performed as follows:
(i) The demising wall will be as shown on Exhibit "A"
which is attached hereto and made a part hereof.
The demising wall must extend from the floor to
the underside of the roof deck so that it will be
a legal fire wall; and;
(ii) The two (2) doors will be security doors with Ilco
Unican combination locks or comparable punch key
combination locks in the bathroom hallway so that
the Tenant and the adjacent tenant will have
access into the hallway but cannot enter the
premises of the other; and
(iii) New door ways will be cut into the bathrooms, and
the existing openings between the locker rooms and
the bathrooms are to be closed up; and
(iv) With regard to any wall openings to be closed,
sheetrock will be installed as may be necessary to
secure each premises against entry from the
adjacent premises.
The Tenant will obtain all governmental approvals and permits for the demising
wall, doors and wall openings, including a certificate of occupancy upon
completion or other proof of governmental approval, and will cause the work to
be perform in a good and workmanlike manner by independent contractors using
materials consistent with those presently used in the building. Tenant will be
responsible for any architectural fees, and will furnish Landlord with a copy of
the plans and specifications of the work, as completed, and the original
certificate of occupancy. Tenant will furnish Landlord with evidence that all
contractors and supplies have been paid in full and that the property is lien
free. Tenant will use its best efforts to have the work substantially completed
by June 30, 2000. However, failure to substantially complete by that dated shall
not be an event of default under the Lease as herein amended. Substantially
completed shall be deemed to have occurred when the only items remaining to be
performed are minor and insubstantial details of construction, mechanical
adjustment or decoration, the non-completion of which does not materially
interfere with the use by the adjacent tenant of its premises. The date on which
Tenant completes its obligations pursuant to this Section 13A will be the
"Completion Date."
13. Section 17 of the Lease is hereby amended to provide that the parties
acknowledge that Marcus Associates, L.L.C. and Xxxxx X. Xxxxxx, Inc.
are the brokers for this transaction, and their commission will be paid
by Tenant pursuant to their separate agreement. Landlord and Tenant
represent that they have not dealt with any other real estate broker or
other party who may claim or
be entitled to a commission in connection with this Amendment. The
indemnity provisions of Section 17 will apply to this Amendment.
14. Section 22 of the Lease is hereby amended to provide that, with regard
to the presently existing mortgage, Landlord will use its best efforts
to obtain the mortgagee's consent to this Amendment and the same
subordination, attornment and non-disturbance agreement which Tenant
originally executed. Tenant will reimburse Landlord for the mortgagee's
review fee not to exceed $ 500.00. In the event Landlord does not
obtain such consent and agreement within thirty (30) days after the
date hereof, and gives Tenant a copy of such consent, this Amendment
will terminate automatically, and Landlord will reimburse Tenant for
its reasonable expenses actually incurred for the plans and building
permit. In the event Landlord obtains the mortgagee's consent but not
its agreement to execute a non-disturbance agreement within the same
thirty (30) day period, Tenant's sole right and remedy to (i) waive the
requirements for such non-disturbance agreement with regard to the
presently existing mortgage only or (ii) terminate this Amendment by
written notice received by Landlord within five (5) days after Tenant
received notice from Landlord. In the even of such termination, neither
party shall have any further right or recourse against the other with
regard to this Amendment, and the Lease, without amendment, will remain
in full force and effect. Tenant will not be required to begin
construction until such time as the mortgagee's consent is received;
however, Tenant will cause plans and specifications to be prepared and
will apply for a building permit promptly and after the delivery to
Tenant of a fully executed copy of this Amendment.
15. Section 37 of the Lease is hereby amended to provide that Landlord will
not be obligated to return to Tenant the amount of $ 22,833.33 which is
due and payable of March 1, 2000 unless and until (i) this Amendment
terminates as herein provided or (ii) Tenant has fulfilled its
obligations with regard to the demising wall as provided in Section 12
of this Amendment.
16. A New Section 48 is added to the Lease as follows:
"48. CONDITIONS PRECEDENT. The obligations of the Landlord and
Tenant pursuant to this Amendment are conditioned upon the
following:
a. Landlord and the adjacent tenant entering into a lease
with terms and provisions satisfactory to both parties
and consistent with the provisions of this Amendment on
or before April 30, 2000; and
b. Landlord obtaining the consent of its mortgagee and the
execution of subordination, non-disturbance and
attornment agreement with regard to this Amendment and
the lease with the adjacent tenant on or before May 30,
2000.
In the event that these condition have not been satisfied, this Amendment will
terminate, automatically, and the Lease will continue in full force and effect
as originally stated."
17. A new Section 49 is added to the Lease as follows:
"49. ACCESS TO TELEPHONE PANEL. Landlord, adjacent tenant and any
future substitutes or replacements of the adjacent tenant and their
respective contracts will have access to the telephone patch panel
located in the leased premises for the purpose of installing,
repairing, replacing and maintaining telephone lines which service
the adjoining space to be occupied by the adjacent tenant. Access
will be given during Tenant's normal business hours and provided
that Tenant has given at least twenty-four hour prior written
notice. The party (Landlord, adjacent tenant, etc.) which request
such access will be deemed, automatically, to have indemnified and
held harmless from and against all loss, damage and expenses
arising out of damage to personal property or personal injury
resulting from such access and the work performed."
18. Except that otherwise specifically provided herein, all of the terms
and provisions of the Lease shall continue in full force and effect. In
the event of any conflict between the provisions of this Amendment and
the Lease, the provisions of this Amendment shall govern and prevail.
19. This Amendment shall be binding upon and shall be for
the benefit of the parties hereto and their
respective successors and assigns.
The parties have executed this Amendment on the date first above written.
WITNESS: Hollister '97, L.L.C.
By: Lyndhurst Properties
Associates, L.P., its Manager
By:
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, its General Partner
WITNESS: BEI Medical Systems Company, Inc.
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