FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (this "First Amendment") dated as of the
24th day of November, 1999, between BOI I, L.L.C., a New Jersey limited
liability company, having an office do The Advance Group, Inc., 0000 Xxxxx
Xxxxxxx 000, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Landlord") and TECKER
CONSULTANTS, LLC, a New Jersey limited liability company, having an address at
000 Xxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, The Xxxxx Company, as Rent Receiver for River View Executive
Park, Inc. ("River View") and Tenant entered into a certain Lease dated as of
October 31, 1994 (hereinafter known as the "Original Lease");
WHEREAS, BOI I, L.L.C. is the successor-in-interest to River View solely
with respect to the Original Lease;
WHEREAS, Tenant desires to exercise its renewal option and the parties
desire to further modify the Original Lease.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. Capitalized Terms. Unless otherwise expressly defined in this First
Amendment, capitalized terms shall have the meaning ascribed to them in the
Original Lease.
2. Extension of Term. The Term of the Original Lease shall be extended to
midnight of October 31, 2004 (the "New Expiration Date"). The period beginning
on November 1, 1999 (the "New Commencement Date") and expiring on the New
Expiration Date is hereinafter referred to as the "New Term". Commencing on the
New Commencement Date, all references in the Original Lease to the "Term" shall
be deemed to refer to the New Term.
3. Rent.
(a) Paragraph (a)(i) is hereby deleted.
(b) Paragraph (a)(ii) is replaced with the following: "during the
New Term, the sum of One Hundred Seventy-Six Thousand Five Hundred Eighty-Two
and 50/100 ($176,582.50) Dollars payable in equal monthly installments of Two
Thousand Nine Hundred Forty-Three and 04/100 ($2,943.04) Dollars."
4. Real Estate Taxes. The year "1994" shall be replaced with "2000"
throughout paragraph 4(a) and (b).
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5. Operating Costs.
(a) The "base year" shall be the calendar year 2000.
(b) The following new paragraph shall be added:
"Except as otherwise specifically set forth in this Lease,
Landlord's failure, during the term, to prepare and deliver any statements or
bills or to include all operating costs in such statements or bills, or
Landlord's failure to make a demand under this Article or under any other
provision of this Lease shall not in any way be deemed to be a waiver of, or
cause Landlord to forfeit or surrender, its rights to collect any items of
additional rent which may have become due pursuant to this paragraph and
paragraph 4 during the Term, including without limitation, Landlord's right to
make subsequent adjustments to the operating costs for the base year (e.g. to
reflect a reduction in the operating costs for the base year due to a subsequent
real estate tax refund or to include additional costs in the operating costs for
the base year that were inadvertently omitted in the initial statement) and to
collect additional rent (both past and future) based upon the adjusted operating
costs for the base year; provided, however, Tenant shall have no obligation to
pay any such additional costs unless or until Tenant has been advised by
Landlord of the amount due pursuant to an annual statement of operating costs
prepared by Landlord or pursuant to a statement identifying the nature and
amount of the subsequent adjustment. Tenant's liability for all additional rent
due under this paragraph and paragraph 4 shall survive the expiration or earlier
termination of this Lease."
6. Insurance. The year "1994" shall be replaced with "2000" throughout
paragraph 6. The policies shall also name Landlord's property manager as a named
insured.
7. Fire Damage.
(a) "Thirty (30) days" in the first sentence shall be replaced with
"sixty (60) days".
(b) The following new paragraph is added:
"If Landlord determines, or is required, to repair and restore the
demised premises, Landlord shall not be required to repair or replace any of the
furniture, equipment, fixtures, alterations, and other improvements which may
have been placed by, or at the request of, Tenant or other occupants in the
demised premises, and Landlord's obligation to repair or restore the Office
Building or demised premises shall be limited to the extent of the insurance
proceeds actually received by Landlord for the casualty in question, provided
the rent shall be proportionately abated to the extent Landlord does not
complete the repair or restoration."
8. Notices. Any notices that must be sent to Landlord pursuant to the
terms of the Original Lease, as amended by this First Amendment, shall be sent
as follows:
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With a copy to:
BOI I, L.L.C. Windels, Marx, Davies & Ives
c/o The Advance Group, Inc. 000 Xxxxxx Xxxxxx
0000 Xxxxx Xxxxxxx 000 Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Xxxxxxxxxx, Xxx Xxxxxx 00000 Attn: Xxxxxxx X. Xxxxxx, Esq.
Attn: Xxxx X. Xxxxxxxx
9. Option to Renew. This paragraph is revised to provide that Tenant has
one (1) remaining five (5) year renewal option, in accordance with the terms and
conditions of paragraph 26 of the Lease, except that:
(a) There shall be no event of default at the time of the exercise
of the option and on the first day of the renewal period;
(b) The time period in which Tenant must provide notice of the
exercise of the option shall be TIME OF THE ESSENCE;
(c) The word "appraiser" shall be replaced with "MAI appraiser"
throughout paragraph 26; and
(d) Landlord shall lease to Tenant the demised premises in their
then-current condition, and Landlord shall not provide to Tenant any allowances
(e.g., moving allowance, construction allowance and the like) or other tenant
inducements.
10. Environmental Laws. Paragraph 29 is replaced with the following:
(a) (1) Unless otherwise specified herein, the following terms used
in this Section 14 shall have the following meanings:
"DEP": New Jersey Department of Environmental Protection and any
successor agency.
"Environmental Laws": All present and future federal, state or local
laws, codes, ordinances, rules, regulations and other requirements as the same,
from time to time, may be amended, which relate to the human health or safety
concerns or to the environment, including those applicable to the storage,
treatment, disposal, handling and release of any Hazardous Substances or Wastes.
"Environmental Claim": Any complaint, order, directive, claim,
action, investigation, lawsuit, demand, citation, notice, proceeding or lien, or
threatened complaint, order, directive, claim, action, investigation, lawsuit,
demand, citation, notice, proceeding or lien, by a federal, state or local
governmental entity involving Environmental Laws which arise from Tenant's
actions or omissions at the demised premises and/or the business conducted by
Tenant therein.
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"Environmental Condition": Any emission, spill, discharge,
contamination or threatened contamination of any kind or nature whatsoever at,
on or from the demised premises or affecting systems servicing the demised
premises which arises from Tenant's actions or omissions at the demised premises
and which may violate any Environmental Law, including, without limitation, the
presence of Hazardous Substances or Wastes.
"Hazardous Substances or Wastes": Any toxic substance, hazardous
substance, contaminant, waste, pollutant or other similar product or substance
that may pose a threat to the environment or human health safety, as defined in
Environmental Laws.
(2) At all times during the term, Tenant, at its sole expense, shall
fulfill, observe and comply with, and keep the demised premises in compliance
with any and all Environmental Laws that relate to Tenant's use and occupancy of
the demised premises.
(3) If Tenant receives any notice of the occurrence or existence of
an Environmental Condition and/or Environmental Claim, then Tenant shall give
immediate notice of same to Landlord.
(4) If Tenant fails to comply with the requirements of this
paragraph, Landlord shall, after first giving Tenant at least twenty (20) days
prior written notice, have the option, but shall not be obligated, to exercise
any of its rights as provided in this Lease and Landlord or its representatives
may enter onto the demised premises and take any actions Landlord deems
necessary or advisable to investigate, clean up, remove, resolve or minimize the
impact of, or otherwise address, an Environmental Condition, and/or
Environmental Claim upon Landlord's receipt of notice from any person, entity or
other source of same. All costs and expenses incurred by Landlord in the
exercise of any such rights shall be paid by Tenant as additional rent.
(5) Without limitation upon any other event which may constitute a
default on the part of Tenant under this Lease, the occurrence of any of the
following events shall constitute a default on the part of Tenant under this
Lease, entitling Landlord to all of the rights and remedies provided therefor:
(A) If Landlord fails to receive immediate notice of an
Environmental Condition and/or Environmental Claim from Tenant.
(B) If any person or entity asserts or creates a lien upon the
Office Building and/or the demised premises or any portion thereof by reason of
the occurrence of an Environmental Condition and/or Environmental Claim
resulting solely or partly as a result of the act or omission of Tenant;
provided, however, the occurrence of an Environmental Claim shall not constitute
an event of default if, within five (5) days of the occurrence giving rise to
the Environmental Claim: (1) Tenant can prove to Landlord's satisfaction that
Tenant has commenced and is diligently pursuing either: (a) a cure or correction
of the event which constitutes the basis for the Environmental Claim and
continues diligently to pursue such cure or correction to completion; or (b)
legal proceedings preventing such governmental entity or entities from asserting
such Environmental Claim; and (2) Tenant has posted a bond, letter of credit, or
other security satisfactory in form, substance and amount to Landlord to secure
the proper and complete cure or correction of the event which constitutes the
basis for the Environmental Claim.
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(6) Tenant shall permit Landlord's representatives (including
agents, servants, employees, legal counsel, environmental consultants and
engineers) access during normal business hours, or during other hours either by
agreement of the parties or in the event of any emergency related to
Environmental Laws, to: (A) examine, audit, copy or make extracts from, any and
all books, records and documents in possession of Tenant, its agents,
representatives, environmental consultants, or independent contractors relating
to Tenant's compliance with Environmental Laws; (B) inspect the demised
premises, and/or (C) perform any work at the demised premises to assure that the
demised premises are in compliance with all Environmental Laws.
(7) At no expense to the Landlord, Tenant promptly shall provide all
information requested by Landlord or any federal, state or local governmental
entity regarding any Environmental Laws and promptly shall sign such affidavits
and submissions when requested to do so by Landlord or any federal, state or
local governmental entity. In the event an affidavit or submission is inaccurate
or incomplete, Tenant shall cooperate and provide such information so that it
can be made accurate and complete, at which time Tenant promptly shall sign
same.
(b) (1) Without limitation upon any of Tenant's obligations pursuant
to paragraph (b), Tenant, at its sole cost and expense, shall comply with the
Industrial Site Recovery Act, N.J.S.A. 13:K-6 et seq. ("ISRA"), including but
not limited to, making all submissions and providing all information to the DEP
and otherwise complying with all requirements of ISRA applicable to it.
(2) Should Tenant's operations at the demised premises not be
subject to ISRA, Tenant, at is sole cost and expense, shall obtain a letter of
non-applicability or deminimus quantity exemption from the DEP within thirty
(30) days of the expiration or earlier termination of the term and promptly
shall provide Tenant's submission and the DEP's exemption letter to Landlord.
(3) Tenant represents and warrants to Landlord that Tenant's
use of the demised premises shall be restricted to the SIC number set forth
herein unless Tenant obtains Landlord's prior written consent to any change,
which consent may be unreasonably withheld in Landlord's sole discretion.
(c) Tenant agrees that each and every provision of this paragraph
shall survive the expiration or earlier termination of the term of this Lease,
regardless of the reason for such termination, it being agreed and acknowledged
that Landlord would not have entered into this Lease but for the provisions of
this paragraph and the survival thereof. Tenant's failure to abide by the terms
of this paragraph shall be restrainable by injunction.
11. Ratification. Tenant and Landlord each hereby ratify and confirm its
obligations under the Original Lease, and represents and warrants to the other
that, to the best of its knowledge, it has no defenses thereto. Additionally,
Tenant and Landlord each further confirms and ratifies that, as of the date
hereof, (a) the Original Lease is and remains in good standing and in full force
and effect, and (b) such party has no claims, counterclaims, set-offs or
defenses against the other arising out of the Original Lease, the First
Amendment or in anyway relating thereto or arising out of any other transaction
between Landlord and Tenant.
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12. Broker. Tenant and Landlord each represents and warrants to the other
that it has not dealt with any real estate broker in connection with this First
Amendment, and each party hereby indemnifies and holds the other harmless from
and against any and all costs, claims, losses, liabilities and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
arising out of a claim for a commission asserted against such other party by a
broker that dealt with the indemnifying party in connection with this First
Amendment.
13. Binding Effect - Governing Law. Except as modified hereby, the
Original Lease shall remain in full effect and this First Amendment shall be
binding upon Landlord and Tenant and their respective successors and assigns. If
any inconsistency exists or arises between the terms of this First Amendment and
the terms of the Original Lease, the terms of this First Amendment shall
prevail. This First Amendment shall be governed by the laws of the State of New
Jersey.
14. Counterparts. This First 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.
Executed as of the date first written above.
LANDLORD
BOI I, L.L.C.
By: Advance Realty Management, Inc.,
its managing agent
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
TENANT:
TECKER CONSULTANTS, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Manager
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