SIXTH MODIFICATION OF LEASE
AGREEMENT (herein this "Sixth Lease Modification"), made this 11th day of
August, 1998, by and between SBC HOLDINGS L.P., 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 (as successor-in-interest to Xxxxxx X. Xxxxx, et al.)
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, Fourth
Modification of Lease dated January 30, 1992 and Fifth Modification of Lease
dated October 16, 1996 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
WHEREAS, the parties hereto desire to 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 Plot Plan of 0000 Xxxxxxxxxx Xxxxxx presently annexed to the Lease
as Exhibit "A-1" is hereby deleted therefrom and the Plot Plan of 0000
Xxxxxxxxxx Xxxxxx annexed hereto as Exhibit "A-1" is hereby substituted in lieu
thereof. The attached Exhibit "A-1" shows an area consisting of approximately
7,750 square feet located in the building known as 0000 Xxxxxxxxxx Xxxxxx
situated within Lot No. 3/1, which area is cross-hatched on Exhibit "A-1" and is
hereinafter referred to as the "Additional Premises". Upon the Effective Date
(as hereinafter defined), the Additional Premises shall be deemed to be part of
the Demised Premises, as if originally included
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within the Demised Premises, as the same is defined by the Lease. The overall
square footage of the Demised Premises shall be increased to approximately
36,710 square feet. Tenant has examined the Additional Premises and has made a
complete inspection of the same and is familiar with the physical condition
thereof as of this date. Landlord has not made and does not make any
representation as to the physical condition or any other matter affecting or
relating to the Additional Premises except as provided below. Tenant agrees to
accept the Additional Premises "as-is".
2. The Effective Date shall be the date upon which Landlord delivers
possession of the Additional Premises to Tenant .
3. The Term of the Lease is hereby extended to that date which is the tenth
(10th) anniversary of the last day of the calendar month in which the Effective
Date shall occur (the "Expiration Date").
4. From and after the Effective 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 (subject to the provisions of
Paragraph 7 hereof):
(A) From the Effective Date through the day before the Fifth (5th)
anniversary of the Effective Date: THREE HUNDRED EIGHT THOUSAND SIX
HUNDRED SEVENTY AND 00/100 ($308,670.00) DOLLARS per annum - TWENTY
FIVE THOUSAND SEVEN HUNDRED TWENTY TWO AND 50/100 ($25,722.50) DOLLARS
per month. Notwithstanding the foregoing, in consideration for the
performance of Tenant's Work (as hereinafter defined), Tenant shall
receive a rent credit of $15,000.00 against the rentals payable during
the month next following the date upon which Tenant shall have
completed the Tenant's Work and shall have delivered to Landlord the
documentation required pursuant to Paragraph 5 below:
(B) From the Fifth (5th) anniversary of the Effective Date through the
Expiration Date: THREE HUNDRED FORTY FOUR THOUSAND THREE HUNDRED FORTY
AND 00/100 ($344,340.00) DOLLARS per annum - TWENTY EIGHT THOUSAND SIX
HUNDRED NINETY FIVE AND 00/100 ($28,695.00) DOLLARS per month.
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5. Following written notice given by Landlord to Tenant after the Effective
Date (such notice is hereinafter called the "Landlord's Work Notice"), Tenant
shall perform, in the Additional Premises and the premises adjacent to the
Additional Premises (which adjacent premises are designated on Exhibit A-1 as
the "Remaining Programmer's Paradise Space") the work described in Exhibit B
annexed hereto. Within thirty (30) days from the date of execution and delivery
of this Sixth Lease Modification, Tenant shall prepare and submit plans for the
Tenant's Work to Landlord for Landlord's approval. Tenant covenants and agrees
that Tenant shall commence the performance of the Tenant's Work within ten (10)
days following Tenant's receipt of notice from Landlord that Landlord has
approved the plans and specifications for the performance of the Tenant's Work,
and thereafter Tenant shall diligently prosecute such Tenant's Work and complete
same as soon as possible, but in no event more than thirty (30) days from and
after the date of the Landlord's Work Notice. Tenant's Work shall be effected
solely in accordance with the plans and specifications approved by Landlord.
Tenant's Work shall be performed in accordance with all of the provisions of the
Lease, including, without limitation, the provisions of Articles 6, 7 and 19
thereof. During the progress of Tenant's Work, Tenant's Work shall be subject to
inspection by representatives of Landlord, who shall be permitted access and the
opportunity to inspect at all reasonable times, but this provision shall not in
any way whatsoever create any obligation on Landlord to conduct an inspection or
impose any liability on Landlord for the failure of any such Tenant's Work. Upon
completion of Tenant's Work, Tenant shall submit to Landlord in form and
substance satisfactory to Landlord and counsel for Landlord the following:
(a) A Certificate of Completion by a licensed architect or engineer,
which Certificate shall certify that all Tenant's Work has been completed
in accordance with the approved plans and specifications;
(b) A certificate by Tenant that the entire cost of Tenant's Work has
been paid and the amount thereof, that all those who furnished work or
materials have been paid in full, and that no party has filed any lien or
possesses any claim which is unpaid or remains undischarged;
(c) A Certificate of Occupancy, or an equivalent permit or
certificate, required by any governmental authorities for the occupancy of
the Additional Premises and the Remaining Programmer's Paradise Space;
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(d) A final release and lien waiver signed by Tenant's general
contractor and all subcontractors and materialmen, together with a
certificate by the general contractor to the effect that all those who
furnished work or materials to the Additional Premises and the Remaining
Programmer's Paradise Space have been paid in full and that the release and
waiver has been signed by all those who furnished work or materials to the
Additional Premises and the Remaining Programmer's Paradise Space; and
(e) Final and complete "as-built" plans (architectural and mechanical)
evidencing the Tenant's Work.
In the event that Landlord shall determine, in its sole and absolute
discretion, that Tenant is not proceeding diligently with the performance of
Tenant's Work or has otherwise defaulted in its obligations under this Paragraph
4 or under the Lease, in addition to any other remedies that Landlord may have
under the Lease as a result of Tenant's default, Landlord shall have the right,
but shall not be obligated to, perform the Tenant's Work on Tenant's behalf and
at Tenant's sole cost and expense. Tenant shall reimburse Landlord, within five
(5) days following billing therefor, for any and all costs and expenses incurred
by Landlord (including administrative and overhead charges) in the performance
of Tenant's Work.
6. Notwithstanding anything to the contrary contained therein, Section
31.01 of the Lease is hereby modified to provide that for the purposes of this
Lease, as of the Effective Date, 15,197 square feet is deemed to be leased as
office space and 21,513 square feet is deemed to be leased as non-office or
processing space.
7. Landlord and Tenant acknowledge that, pursuant to letter dated May 6,
1998, Tenant has exercised its option under paragraph 3 of the Fifth
Modification of Lease dated October 16, 1996 between Landlord and Tenant, to
lease the approximate 7,040 square foot premises presently occupied by Xxxxxx
Park Press at 0000 Xxxxxxxxxx Xxxxxx, which leasing shall commence, and the
annual minimum rental payable under the Lease shall increase, from and after the
date that Landlord delivers possession of such premises to Tenant.
Notwithstanding anything to the contrary set forth in paragraph 3 of said Fifth
Modification of Lease, in the event that the lease of the Xxxxxx Park Press
premises commences following the Effective Date of this Sixth Lease Modification
(as defined herein), the annual minimum rental amount set forth in Paragraph 3
(b) (ii) (A) of said Fifth Modification of Lease shall be changed to $366,750.00
per annum ($30,562.50 per month), and the
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annual minimum rental amount set forth in 3(b)(ii)(B) shall be changed to
$409,950.00 per annum ($34,162.50 per month). Similarly, notwithstanding
anything to the contrary set forth in this Sixth Lease Modification, if the
Effective Date (as defined herein) occurs following the commencement date of the
leasing of the Xxxxxx Park Press premises (as determined by paragraph 3 of said
Fifth Modification of Lease), the annual minimum rental amount set forth in
Paragraph 4(A) of this Sixth Lease Modification shall be changed to $366,750.00
per annum ($34,162.50 per month), and the annual minimum rental set forth in
4(B) of this Sixth Lease Modification shall be changed to $409,950.00
($34,162.50 per month). Upon the commencement date of the leasing of the Xxxxxx
Park Press premises following the Effective Date, the overall square footage of
the Demised Premises shall be increased to 43,750 square feet, and Section 31.01
of the Lease shall be modified to provide that for the purposes of this Lease,
17,504 square feet is deemed to be leased as office space, and 26,246 square
feet is deemed to be leased as non-office space or processing space.
8. Tenant acknowledges that, as of the Effective Date, Tenant's
proportionate share of additional rent payable under the Lease shall be
adjusted, pursuant to the terms of the Lease, to reflect the increase in the
square footage of the Demised Premises.
9. In the event that the Effective Date has not occurred within one (1)
year from the date hereof, thereafter Landlord or Tenant shall have the right,
upon notice given by the other prior to the Effective Date, to terminate this
Sixth Lease Modification. Notwithstanding anything to the contrary set forth
herein, upon termination of this Sixth Lease Modification, Landlord and Tenant
shall be released from all obligations under this Sixth Lease Modification and
the Lease shall remain in full force and effect as if this Sixth Lease
Modification had not been entered into between Landlord and Tenant.
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00. 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 Sixth Modification of
Lease to be executed as of the day and year first above written.
ATTEST: SBC HOLDINGS L.P.,
a Delaware limited partnership
By: SBC BUILDING CORP.,
a Delaware corporation, General Partner
/s/ Xxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------- --------------------------------
Title: President
--------------------------------
ATTEST: OSTEOTECH, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
---------------------------- --------------------------------
Treasurer Exec. Vice President
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STATE OF NEW YORK )
SS:
COUNTY OF WESTCHESTER )
BE IT REMEMBERED, that on this 11th day of August, 1998, before me, the
subscriber, A Notary Public of the State of New York, personally appeared Xxxxxx
X. Xxxxx, President of SBC BUILDING CORP., general partner of SBC HOLDINGS L.P.,
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 as general partner of SBC HOLDINGS
L.P., made by virtue of the authority of its board of directors.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
NOTARY PUBLIC
Stamp: XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 4875196
Qualified in Westchester County
Commission Expires October 6, 0000
XXXXX XX XXX XXXXXX )
SS:
COUNTY OF MONMOUTH )
BE IT REMEMBERED, that on this 14th day of July, 1998, before me, the
subscriber, personally appeared Xxxxxxx X. Xxxxxxxx, EVP 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
Stamp: XXXXX XXXXXXX XXXXXX
Notary Public of New Jersey
No. 2102832, Ocean County
Commission Expires July 27, 2002
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EXHIBIT A-1
Diagram/Map of the Xxxx Xxxx xx 0000 Xxxxxxxxxx Xxxxxx
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Xxx of Existing Osteotech
EXHIBIT B
TENANT'S WORK
Tenant agrees to perform the work set forth below in accordance with the
provisions of the Lease and the attached Sixth Modification of Lease.
1. Construct or restore fire wall to separate the Additional Premises from the
Remaining Programmer's Paradise Space.
2. Re-paint office portion of the Remaining Programmer's Paradise Space (two
coats - choice of color by Programmer's Paradise).
3. Tenant will include in its building plans for the Tenant's Work a new 8' x
8' (or smaller, at the option of Programmer's Paradise) UPS door, at the
rear of the warehouse, it being understood, however, that the construction
of such door is not part of Tenant's Work.
4. Tenant shall separate and provide for separate metering of the utilities
for the Additional Premises and the Remaining Programmer's Paradise Space,
inclusive of the HVAC system which shall be divided in a proportionate
manner between the two premises.
5. Tenant shall remove mezzanine shelving platforms used by Programmer's
Paradise in the Additional Premises, and reinstall same in the Remaining
Programmer's Paradise Space.
6. The doors which will be removed by Tenant to restore the fire wall shall be
delivered to Programmer's Paradise immediately upon their removal.
7. Tenant will remove and replace carpeting (selection by Programmer's
Paradise - comparable to existing) in the office area of the Remaining
Programmer's Paradise Space.
8. Tenant shall coordinate the performance of Tenant's Work with Programmer's
Paradise, as needed, including scheduling and performing Tenant's Work in a
manner that will minimize any disruption in the conduct of business by
Programmer's Paradise in the Remaining Programmer's Paradise Space.
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