SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (the "Second Amendment") dated as of the
13th day of January, 2003, between BOI I, L.L.C., a New Jersey limited liability
company ("Landlord"), having an office c/o Advance Realty Group, Inc., 0000
Xxxxx Xxxxxxx 000, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000, and TECKER
CONSULTANTS, LLC, a New Jersey limited liability company ("Tenant"), having an
address at 000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, The Xxxxx Company ("Xxxxx"), as Rent Receiver for River View
Executive Park, Inc. on behalf of Colony NYRO Partners, L.P. ("Colony") and
Tenant entered into a Lease dated as of October 31, 1994 (the "Original Lease"),
which Original Lease was modified by First Amendment to Lease dated as of
November 24, 1999 (collectively, the "Lease"), pursuant to which Tenant leased,
and is presently in possession of, premises containing an agreed-upon one
thousand nine-hundred nine (1,909) rentable square feet (the "Demised Premises")
in that certain building now known as Riverview Plaza and located in Trenton,
New Jersey (the "Building"); and
WHEREAS, Colony conveyed its interest in the Building and the land on
which it is located (the "Land") to Bedcap Opportunity Investors, L.L.C., which
subsequently conveyed its interest in the Building and the Land to Landlord; and
WHEREAS, the term of the Lease is scheduled to expire on October 31, 2004;
and
WHEREAS, Tenant desires to extend the Term of the Lease and Landlord is
willing to extend the Term of the Lease, subject to the terms and provisions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Capitalized Terms. Unless otherwise expressly defined in this Second
Amendment, capitalized terms shall have the meaning ascribed to them in the
Lease.
2. Extension of Lease Term. The Term of the Lease is hereby extended for
three (3) years and two (2) months, so that the Lease shall now expire at 6:00
p.m. on December 31, 2007 (unless sooner terminated pursuant to the provisions
of the Lease). Any reference to the "Term" of the Lease shall mean the initial
Term as previously extended, as same is being further extended pursuant to this
Second Amendment. Tenant hereby acknowledges that except as expressly set forth
in Section 3 below, Landlord is not performing any work to the Demised Premises
or providing to Tenant any allowances (e.g., moving allowance, construction
allowance, and the like) or other tenant inducements and Tenant is extending the
Lease Term of the Demised Premises in its "AS IS, WHERE IS" condition.
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3. Landlord's Work. (a) Provided that Tenant is not in default under any
of the terms and conditions of the Lease, Landlord shall, within a reasonable
period of time after the date hereof, perform the work to the Demised Premises
as set forth on Exhibit A attached hereto and made a part hereof ("Landlord's
Work"). Landlord shall be responsible for the cost of Landlord's Work up to the
sum of Thirteen Thousand, Two Hundred Twenty-Eight and 00/100 ($13,228.00)
Dollars, with all additional cost, if any, to be borne by Tenant as set forth
herein. Conversely, if the cost of Landlord's Work is less than $13,228.00,
Tenant shall not be entitled to any portion of such excess monies. Tenant shall
pay the additional cost of Landlord's Work, as initially determined by Landlord,
prior to and as a condition of Landlord's commencement of Landlord's Work. In
the event that the additional cost, as finally determined, exceeds the amount
initially determined by Landlord prior to commencing Landlord's Work, Tenant
shall remit to Landlord the full amount of such excess sum within twenty (20)
days after receipt of an invoice therefor. The additional cost of Landlord's
Work shall constitute additional rent under the Lease.
(b) Tenant acknowledges that Landlord's Work will be performed while
Tenant is conducting business from the Demised Premises and could materially,
adversely interfere with the conduct of Tenant's business. Accordingly, Tenant
expressly agrees that (i) Landlord shall not be liable in any way for any
injury, loss or damage as a result of the performance of Landlord's Work, and
(ii) the performance of Landlord's Work shall not entitle Tenant to any
abatement of rent. In amplification of the foregoing, and not in limitation
thereof, Tenant expressly waives any right it might otherwise have to claim that
the performance of Landlord's Work constitutes a constructive eviction, even if
Tenant must temporarily interrupt its business in the Demised Premises in order
to accommodate Landlord's construction schedule.
(c) Tenant agrees that it shall cooperate with all reasonable
requests of Landlord (by way of example and not in limitation thereof, moving
furniture, safeguarding files, and not performing any Tenant work that could
interfere with Landlord's Work) in order to facilitate the completion of
Landlord's Work. Landlord agrees to use good faith efforts to complete
Landlord's Work within a reasonable period of time after the date hereof,
subject to force majeure. However, if the substantial completion of Landlord's
Work is delayed due to (i) any act or omission of Tenant or Tenant's agents,
contractors, employees or invitees, or (ii) any failure by Tenant or Tenant's
agents, contractors, employees or invitees to comply with any requirements of
Landlord's construction schedule, or (iii) any failure by Tenant or Tenant's
agents, contractors, employees or invitees to cooperate with Landlord or
Landlord's agents, then any such delay shall constitute "Tenant Delay(s)."
Landlord shall have no liability for any failure to substantially complete
Landlord's Work within a reasonable period of time after the date hereof if the
performance of Landlord's Work is in any way hindered or prevented as a result
of Tenant Delay.
(d) All costs and expenses incurred by Landlord in connection with
Landlord's Work shall immediately become due and payable upon a default under
the Lease.
4. Fixed Rental. Commencing on January 1, 2003, Tenant shall pay to
Landlord annual fixed rental which shall accrue as follows:
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Year Per Square Foot Annual Monthly
---- --------------- ------ -------
1/1/03 to 12/31/03 $20.50 $39,134.50 $3,261.21
1/1/04 to 12/31/04 $21.50 $41,043.50 $3,420.29
1/1/05 to 12/31/05 $22.50 $42,952.50 $3,579.38
1/1/06 to 12/31/06 $23.50 $44,861.50 $3,738.46
1/1/07 to 12/31/07 $24.50 $46,770.50 $3,897.54
5. Lease Amendments. From and after the date hereof, the Lease shall be
amended as follows:
(a) Operating Costs. Section 5 of the Lease is amended to delete the
language beginning with the phrase "The base year shall be. . . "on page 4 of
the Original Lease, and continuing through the remainder of the paragraph, and
inserting the following in its place:
On or about January 1 of each lease year, Landlord shall send to
Tenant a statement ("Landlord's Estimate") of projected Operating
Costs for the applicable lease year. Landlord shall indicate, as
part of Landlord's Estimate, what Tenant's Proportionate Share of
the Operating Overage shall be, said amount to be paid in equal
monthly installments (rounded up to the nearest whole dollar) in
advance by Tenant. If during the course of any lease year Landlord
has reason to believe that the Operating Costs shall be higher than
Landlord's Estimate, then Landlord shall have the right, but not the
obligation, to adjust Landlord's Estimate by a lump sum invoice for
the months of the lease year which precede the revised projections,
and in addition, to advise Tenant of any adjustment in future
monthly amounts with the end result that Operating Costs shall be on
a reasonably current basis each lease year.
Within one hundred twenty (120) days following the end of each lease
year, or as soon thereafter as reasonably feasible, Landlord shall
send to Tenant a statement of expenses incurred for the prior lease
year showing the pro rata share of the Operating Overage due from
Tenant based on Tenant's Proportionate Share. For each lease year,
in the event that the amount previously paid by Tenant for the
Operating Overage exceeds the amount that was actually due based
upon actual year end Operating Costs, then provided Tenant is not in
default hereunder, Landlord shall credit the amount of such
overcharge to Tenant's future rental payments until Tenant has been
fully credited with the overcharge. In the event Landlord has
undercharged Tenant, then Landlord shall send Tenant an invoice
reflecting the additional amount due, which amount shall constitute
Additional Rent and shall be paid in full by Tenant within thirty
(30) days of receipt of such invoice. With respect to the last lease
year of the Term, Landlord's refund and Tenant's payment obligations
hereunder shall survive the expiration or earlier termination of
this Lease.
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(b) Insurance. Section 6(c) of the Original Lease is amended to
replace the reference to "Two Hundred Fifty Thousand ($250,000.00) Dollars" with
"Five Hundred Thousand ($500,000.00) Dollars."
(c) Indemnity and Liability for Injury and Loss. Section 13(b) is
amended to replace the period at the end of the sentence with a comma, and add
the following: "and for all liability with respect to incidents occurring at the
Building or on the Land as a result of the act, omission or neglect of Tenant or
Tenant's agents, contractors, employees or invitees."
(d) Assignment and Subletting. Section 16 is amended by adding the
following sentence at the end thereof: "Notwithstanding anything contained
herein, if this Lease is assigned (or all or a portion of the Demised Premises
are subleased) to an affiliate, parent or subsidiary of Tenant and such entity
shall no longer (i) control, (ii) be under common control with, or (iii) be
under the control of Tenant (or any permitted successor by merger or
consolidation as provided herein), same shall be deemed an assignment or
sublease pursuant to the provisions of the Section 16 for which Landlord's
consent shall be required."
(e) Notices. Section 20(a) of the Original Lease and Section 8 of
the First Amendment to Lease are amended to that provide any notices sent to
Landlord shall be addressed as follows:
BOI, L.L.C.
c/o Advance Realty Group, Inc
0000 Xxxxx Xxxxxxx 000
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxxx, Senior Vice President
With duplicate copies to: BOI, L.L.C.
c/o Advance Realty Group, Inc.
0000 Xxxxx Xxxxxxx 000
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Lundahi, Senior Vice President
and
Xxxxx Xxxxxx Xxxxx Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx, Esq.
Any notice sent pursuant to the provisions of the Lease shall be deemed
effective upon receipt or rejection thereof.
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(f) Waiver of Subrogation. Section 20(j) of the Original Lease is
deleted in its entirety and replaced with the following:
"Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through
or under them by way of subrogation or otherwise for any loss or
damage to property covered by any insurance required by this Lease
or any other insurance it may elect to carry, even if such loss or
damage shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible,
provided, however, that this release shall be applicable and in
force and effect only with respect to any loss or damage occurring
during such time as the policy or policies of insurance covering
said loss shall contain a clause or endorsement to the effect that
this release shall not adversely affect or impair said insurance or
prejudice the right of the insured to recover thereunder. Landlord
and Tenant shall each have such clause in its respective all-risk
property insurance policies if available without extra charge, and
if there be a charge, shall notify the other party and, in such
event, shall have the clause if the other party agrees to pay such
extra charge. In the event either party is a self-insurer or
maintains a deductible, then the self-insuring party or party
maintaining the deductible hereby releases the other party from any
liability arising from any event which would have been covered had
the required insurance been obtained and/or the deductible not been
maintained."
(g) Option to Renew. Section 26 of the Original Lease and Section 9
of the First Amendment to Lease are deleted in their entirety and replaced with
the following:
"Provided that no default by Tenant exists hereunder either as of
the date Tenant notifies Landlord of its election to extend the Term
or at any time prior thereto, Tenant may extend the Term of this
Lease for one (1) period of five (5) years (hereinafter referred to
as the `Renewal Term'), subject to the following terms and
conditions:
(i) Tenant must be in occupancy of the entire Demised Premises at
the time of Tenant's notice to exercise the renewal option. If
Tenant is not in occupancy of the entire Demised Premises at any
time between the date of Tenant's notice to exercise the renewal
option and the date of the beginning of the Renewal Term, Landlord
may, at its option, nullify Tenant's exercise of the renewal option.
(ii) Tenant shall notify Landlord of its election to renew the Term
by giving Landlord notice thereof not more than fifteen (15) months,
nor less than twelve (12) months, prior to the expiration of the
Term, time being of the essence. All of the provisions of this Lease
(other than the amount of Fixed Rental payable hereunder) shall
apply during the Renewal Term.
(iii) The annual Fixed Rental during the Renewal Term shall be the
greater of (a) the annual Fixed Rental in effect during the twelve
(12) month period preceding the commencement of the Renewal Term
arid (b) the "fair market rent" for the Demised Premises at the time
of the commencement of the Renewal Term. The term "fair market rent"
shall be the rent generally payable in Xxxxxx County, New Jersey for
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equivalent space in an office building of approximately the same
age, location, quality, size and condition as the Building. __
giving due consideration to the location of the Demised Premises in
the Building, the length of the Term of the Lease, and all other
factors that would reasonably be relevant to a third-party tenant
desiring to lease the Demised Premises for the Renewal Term. Within
thirty (30) days after the exercise by Tenant of its option to
renew, Landlord shall notify Tenant of Landlord's determination of
the annual Fixed Rental during the Renewal Term. If Tenant desires
to dispute Landlord's determination then Tenant shall, within thirty
(30) days after receipt thereof, submit to Landlord a written
appraisal of the fair market rent for the Demised Premises by an
appraiser who is a member of the American Institute of Real Estate
Appraisers, having at least seven (7) years' experience in
appraising commercial real estate in Xxxxxx County, New Jersey (a
"Qualified Appraiser"). If Landlord disagrees with the fair market
rent determined by Tenant's Qualified Appraiser, then within
forty-five (45) days of its receipt of such appraisal, Landlord
shall submit to Tenant a written appraisal of the fair market rent
for the Demised Premises by a Qualified Appraiser selected by
Landlord. If Landlord's and Tenant's Qualified Appraisers do not
agree upon the fair market rent but are apart by less than three
(3%) percent, then the fair market rents determined by both shall be
averaged; otherwise, Landlord and Tenant's Qualified Appraiser shall
mutually agree upon an independent Qualified Appraiser to determine
such fair market rent. If the parties are unable to agree upon such
independent appraiser, either party may request the American
Arbitration Association in Xxxxxx County, New Jersey, to appoint
such independent appraiser. The independent appraiser shall select
either the determination of fair market rent by Landlord's Qualified
Appraiser or the determination of fair market rent by Tenant's
Qualified Appraiser, which determination shall be binding upon both
Landlord and Tenant. The parties shall be responsible for the cost
of their own Qualified Appraiser and shall share equally in the cost
of any independent third Qualified Appraiser. Pending resolution of
the issue of fair market rent, Tenant shall pay to Landlord as of
the commencement of the Renewal Term, the Fixed Rental as determined
by Landlord. In the event that it is established that the Fixed
Rental is less than the Fixed Rental paid by Tenant prior to a final
determination under the preceding sentence, then provided Tenant is
not then in default hereunder, Landlord shall reimburse Tenant any
such overpayment of Fixed Rental within thirty (30) days of such
final determination. In the event that it is established that the
Fixed Rental is greater than the Fixed Rental paid by Tenant prior
to a final determination as set forth herein, Tenant shall pay to
Landlord, within 30 days of such final determination, the difference
between the Fixed Rental as set forth in Landlord's initial
determination and the Fixed Rental as finally determined, with
respect to all months of the Renewal Term which elapsed prior to
such final determination.
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(iv) Upon final determination of Fixed Rental to be paid during the
Renewal Term as hereinabove provided, Landlord and Tenant shall
enter into a lease amendment to reflect same; however, neither
Landlord's failure to request such an amendment nor Tenant's failure
to execute such an amendment shall effect the validity of the
determination of Fixed Rental as set forth herein.
(v) The option to renew granted to Tenant is personal to the initial
named Tenant and may not be exercised by or assigned to, whether
voluntarily or involuntarily, other person or entity.
6. Broker. Tenant represents and warrants to Landlord that in connection
with this Second Amendment it has not employed or dealt with any broker, agent
or finder, and Tenant hereby indemnifies and holds Landlord harmless from and
against any and all costs, claims, losses, liabilities and expenses (including,
without limitation, reasonably attorneys' fees and disbursements) arising out of
any breach of the foregoing representation.
7. Ratification. Tenant hereby ratifies and confirms its obligations under
the Lease, and represents and warrants to Landlord that, to the best of its
knowledge, it has no defenses thereto. Additionally, Tenant further confirms and
ratifies that, as of the date hereof, (a) the Lease, as amended herein, is and
remains in good standing and in full force and effect; (b) neither Landlord nor
Tenant is in default of any of its obligations under the Lease, nor has any
event occurred which, with the giving of notice or the passage of time or both
would constitute a default by Landlord or Tenant under the Lease, and (e) Tenant
has no claims, counterclaims, set-off's or defenses against Landlord arising out
of the Lease or this Second Amendment or in any way relating thereto or arising
out of any other transaction between Landlord and Tenant.
8. Binding Effect; Governing Law. Except as modified hereby, the Lease
shall remain in full effect, and the Lease, as an-tended hereby, shall be
binding upon Landlord and Tenant and their respective successors and assigns.
This Second Amendment shall be governed by the laws of the State of New Jersey.
9. Conflicts. If any inconsistency exists or arises between the terms of
this Second Amendment and the terms of the Lease, the terms of this Second
Amendment shall prevail.
10. Voluntary Agreement. Tenant represents that it is represented by legal
counsel of its choice or, if it is not represented by legal counsel, that the
decision not to be represented by legal counsel is a decision that it has freely
made, that it is fully aware of the terms contained in this Second Amendment,
and has voluntarily and without coercion or duress of any kind, entered into
this Second Amendment.
11. No Further Options. Tenant acknowledges that the extension of the
Lease Term as set forth in Section 2 of this Second Amendment and Tenant's
renewal option as set forth in Section 5(g) of this Second Amendment are in lieu
of Tenant's renewal option as set forth in Section 9 of the First Amendment to
Lease. Tenant expressly acknowledges and agrees that it does not have any
further right or option to extend or renew the Term of the Lease. Tenant further
acknowledges and agrees that it has no option or other right to purchase the
Demised Premises, the Building or the Land, or to expand the Demised Premises.
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12. Prior Agreements. This Second Amendment supersedes any term sheet or
prior agreement, whether in writing or oral, delivered to Tenant or any person
or entity acting on behalf of Tenant with respect to the matters set forth
herein, and any such prior agreement is hereby merged into this Second
Amendment.
13. Construction of Agreement. The parties hereto agree that the terms and
of this Second Amendment were the result of negotiations between the parties
and, as a result, there shall be no presumption that ambiguities, if any, in
this Second Amendment shall be resolved against any party. Any controversy over
the construction of this Second Amendment shall be decided neutrally, in light
of its conciliatory purposes, and without regard to authorship or negotiation.
14. Effectiveness. From the date hereof until the Term of the Lease
expires or sooner terminates according to its terms, the Lease, as modified by
this Second Amendment, shall govern and control the rights and obligations of
Landlord and Tenant. Notwithstanding anything herein to the contrary, any rights
or obligations of the parties which, by the terms of the Lease survive the
expiration or termination of the Lease, shall survive such expiration or
termination.
15. Counterparts. This Second Amendment may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
BOI, L.L.C.
a New Jersey limited liability company
WITNESS: By: Advance Plaza, Inc., a New Jersey
corporation, its Managing Member
By: /s/ Xxxx X. Xxxxxxx
--------------------------- ---------------------------
Xxxx X. Xxxxxxx
Senior Vice President
TECKER CONSULTANTS, LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Manager
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EXHIBIT A
LANDLORD'S WORK
[Floor Plan]
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