AMENDMENT TO LEASE
Published on February 6, 1997
Exhibit 10.5
[Lease for premises at 394 Elizabeth Avenue, Somerset, New Jersey 08873]
SKW REAL ESTATE LIMITED PARTNERSHIP
1650 Tysons Boulevard, 4th Floor
McLean, Virginia 22102
December 1, 1996
Emcore Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
Re: The Drew Building
394 Elizabeth Avenue
a/k/a 720 Elizabeth Avenue
a/k/a 394 Elizabeth Avenue
Somerset, New Jersey
Franklin Township, Somerset County
Block 528.05, Lot 19.25
Ladies and Gentlemen:
Reference is hereby made to that lease of the Premises commencing
November 1, 1992 between our predecessor-in-interest, New Jersey National
Bank, and you, as the Tenant, amended by those certain letter agreements dated
March 31, 1995 and January 29, 1996 (collectively the "Lease"). The Landlord
and Tenant have agreed to modify the terms of the Lease as set forth herein.
All capitalized terms used herein not defined herein shall have the meanings
ascribed to them in the Lease.
a) Paragraph 1(c) is hereby modified to provide that the Premises
is 74,850 square feet (37,010 square feet as per letter agreement dated March
31, 1995, plus 11,842 square feet of initial expansion space as per a letter
agreement dated January 29, 1996 plus 25,998 square feet as per this letter
agreement). The Premises now constitute the entire building -- 100% thereof.
This percentage shall be used in all applicable prorations referenced in the
Lease. Accordingly, as of the possession date (defined below) of the
Expansion Space (as defined below), Tenant shall be liable for all of the real
estate taxes and all Expense Rent (without reference to any Expense Base Year)
relating to the Property. Landlord shall have no liability whatsoever for any
repairs or maintenance of any portion of the Property or the Premises except
for roof repair or replacement and the structural aspects of the Property,
provided that the damage thereto shall not have been or caused by the
negligence or deliberate acts of Tenant, or its agents, servants, employees,
guest or invitees, in which event, the same shall be repaired by Tenant at
Tenant's sole cost and expense. The new space being added to the Premises
(the "Expansion Space") is the cross-hatched area shown on EXHIBIT I annexed
hereto.
b) Paragraphs 1 (e) and 49 of the Lease are modified to provide
that the Fixed Rental is $533,762.70 per year, $44,480.23 per month).
c) With respect to the Expansion Space:
1) The possession date thereof shall be the date Tenant or
its counsel receives a copy of this letter agreement
signed by all parties hereto.
2) The Expansion Space shall be delivered totally "as-is" to
the Tenant. The Landlord shall not be required to make
any improvements thereto except as expressly set forth
herein, nor shall Landlord be required to demolish any
existing walls or other structures therein.
3) Tenant shall be entitled to an abatement of Fixed Rental
relating to the Expansion Space ($13,540.63) for a period
of one (1) month from its possession date (i.e., for this
one (1) month abatement period, the Fixed Rental shall
remain in the same amount as it was immediately prior to
Tenant's possession of the Expansion Space -- $30,939.60),
provided, however, that the abatement of Fixed Rental
provided for in this Lease is conditioned upon Tenant's
full and timely performance of all of its obligations
under the Lease during the abatement period.
4) As soon as practicable, Tenant shall deliver to Landlord
detailed plans and specifications for the construction of
the improvements the Tenant proposes to construct in the
Expansion Space. Landlord's approval of such plans and
specifications shall not be unreasonably withheld or
delayed provided that such plans and specifications comply
with all laws, rules and regulations and are sufficiently
detailed to allow construction of the improvements in a
good and workmanlike manner. As used herein, "Working
Drawings" shall mean the final drawings approved by the
Landlord and the "Work" shall mean all improvements to be
constructed in accordance with the Working Drawings.
Landlord's approval of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings
are adequate for any use or comply with any law and shall
merely be the consent of the Landlord thereto. Any and
all changes in the Work must receive the prior written
consent of the Landlord which will not be unreasonably
withheld. All contractors and subcontractors performing
the Work shall be required to procure and maintain
insurance against such risks, and in such amounts, and
with such companies as Landlord may reasonably require.
Certificates of such insurance, with paid receipts
therefor, must be received by Landlord before any Work is
to be commenced. The Work shall be performed in a good
and workmanlike manner, free of defects and shall strictly
conform with the Working Drawings. The entire cost of
performing the Work (the "Total Construction Cost") shall
be paid by Tenant.
d) With respect to a New HVAC units to be installed for the
Expansion Space, Landlord shall be responsible for the first $108,000 of the
cost of such units and installation thereof and Tenant shall be liable for any
such costs in the excess of said sum. The HVAC units and the installation
thereof shall be subject to the Landlord's prior approval which approval will
not be unreasonably withheld or delayed.
e) Upon execution hereof by both parties, the Tenant shall have
the right to expand the existing elevated concrete storage pad and to
construct a concrete pad for the storage of liquid nitrogen tanks (in
accordance with EXHIBIT 2 annexed hereto) in strict accordance with all
applicable governmental laws, rules, regulation and ordinances.
f) Tenant shall deliver to Landlord, simultaneously herewith, and
within ninety (90) days after the end of each of its fiscal years during the
term hereof, copies of its then current annual financial statements prepared
by its regularly engaged independent certified public accountants.
g) Tenant hereby confirms that it has no option to purchase, right
of first refusal or any other agreement whatsoever with respect to the
Property.
h) The term "Lease" shall mean the Lease as amended and
supplemented by this letter agreement. In all other respects, the Lease
remains in full force and effect.
If this letter agreement accurately and completely sets forth our
understanding, please execute the extra copy hereof where indicated below and
return same to the undersigned.
Very truly yours,
SKW REAL ESTATE
LIMITED PARTNERSHIP
By: WSK GEN-PAR, INC.,
its General Partner
By: /s/ Richard Schreiber
RICHARD SCHREIBER
Assistant Vice President
Agreed and accepted this
15th day of November, 1996.
EMCORE CORPORATION
By: /s/ Thomas G. Werthan
THOMAS WERTHAN
Vice President
cc: Mr. Richard Madison, Newmark Partners, Inc.