O F F I C E L E A S E A G R E E M E N T
Exhibit
10.48
O F F I C E L E A S E A G R E E M E N T
BY
AND
BETWEEN: WASHINGTON
PARK FIDELCO, LLC,
a
New Jersey limited liability company,
as
"Landlord"
-and-
AUDIBLE,
INC.,
a
New Jersey corporation,
as
"Tenant"
PREMISES: Xxxxx
0000 xxx Xxxxx 0000
Xxx
Xxxxxxxxxx Xxxx
0
Xxxxxxxxxx Xxxxxx
Xxxxxx
Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
DATED: September
, 2006
PREPARED
BY: XXXXXXX
X. XXXXXXX, ESQ.
TABLE
OF
CONTENTS
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Page
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ARTICLE
1
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TERM
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6
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ARTICLE
2
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FIXED
RENT
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7
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ARTICLE
3
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PROPORTIONATE
SHARE
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8
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ARTICLE
4
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INSURANCE
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8
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ARTICLE
5
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COMMON
AREAS AND PARKING
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9
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ARTICLE
6
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REPAIRS
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11
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ARTICLE
7
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COMPLIANCE
WITH LAW
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11
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ARTICLE
8
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ALTERATIONS
AND IMPROVEMENTS
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12
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ARTICLE
9
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CONSTRUCTION
LIENS
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12
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ARTICLE
10
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WASTE
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13
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ARTICLE
11
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INSPECTION
BY LANDLORD
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13
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ARTICLE
12
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ASSIGNMENT
AND SUBLETTING
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14
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ARTICLE
13
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HOLD
HARMLESS AND INDEMNIFICATION
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15
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ARTICLE
14
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CASUALTY
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16
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ARTICLE
15
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CONDEMNATION/EMINENT
DOMAIN
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17
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ARTICLE
16
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BANKRUPTCY/INSOLVENCY
AND DEFAULT OF TENANT
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18
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ARTICLE
17
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SERVICES
FURNISHED BY LANDLORD
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21
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ARTICLE
18
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ADDITIONAL
RENT
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22
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ARTICLE
19
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ELECTRIC
CHARGES
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27
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ARTICLE
20
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NOTICES
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28
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ARTICLE
21
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LESSER
AMOUNT OF RENT
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28
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ARTICLE
22
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QUIET
ENJOYMENT
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29
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ARTICLE
23
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ARBITRATION
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29
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ARTICLE
24
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LIMITATION
OF LANDLORD'S LIABILITY
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29
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ARTICLE
25
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ESTOPPEL
NOTICES
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30
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ARTICLE
26
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REMEDIES
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30
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ARTICLE
27
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BROKERAGE
COMMISSION
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30
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2
ARTICLE
28
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UNAVOIDABLE
DELAYS
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31
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ARTICLE
29
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SUBORDINATION
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31
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ARTICLE
30
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SIGNS
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32
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ARTICLE
31
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NOTICES
OF DEFAULT
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33
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ARTICLE
32
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USE
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33
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ARTICLE
33
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LANDLORD'S
RIGHT TO MODIFY
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33
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ARTICLE
34
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LATE
CHARGES
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33
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ARTICLE
35
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LANDLORD'S
RULES AND REGULATIONS
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34
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ARTICLE
36
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CONDITION
OF PREMISES
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34
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ARTICLE
37
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ENVIRONMENTAL
LAWS
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34
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ARTICLE
38
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INITIAL
LEASEHOLD IMPROVEMENTS
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35
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ARTICLE
39
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SECURITY
DEPOSIT
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37
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ARTICLE
40
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INTENTIONALLY
DELETED
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38
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ARTICLE
41
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HOLDING
OVER
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38
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ARTICLE
42
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AUTHORITY
OF LEASE SIGNATORIES
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38
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ARTICLE
43
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CONDOMINIUM
CONVERSION
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38
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ARTICLE
44
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ADDITIONAL
SERVICES
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39
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ARTICLE
45
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ROOFTOP
ANTENNA
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39
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ARTICLE
46
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MISCELLANEOUS
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40
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EXHIBIT
A
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DIAGRAM
OF PREMISES
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42
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EXHIBIT
B
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COMMENCEMENT
DATE AGREEMENT
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43
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EXHIBIT
C
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BUILDING
RULES AND REGULATIONS
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44
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EXHIBIT
D
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PARKING
LOTS
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47
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EXHIBIT
E
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HVAC
PERFORMANCE STANDARDS
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48
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EXHIBIT
F
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CLEANING
MAINTENANCE SERVICES
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49
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EXHIBIT
G
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HOLIDAY
SCHEDULE
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50
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EXHIBIT
H
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APPROVED
PLANS
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51
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3
LEASE
SUMMARY
Any
reference in this Lease to the following subjects shall incorporate the data
below stated.
LANDLORD:
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WASHINGTON
PARK FIDELCO, LLC,
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a
New Jersey limited liability company
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LANDLORD'S
ADDRESS:
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000
Xxxxxxxx Xxxxxx
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Xxxxxxxx,
Xxx Xxxxxx 00000
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TENANT:
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TENANT'S
ADDRESS:
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00
Xxxxxxxxxxx Xxxx., #000
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Xxxxx,
Xxx Xxxxxx 00000
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PREMISES:
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The
16th
and 17th
floors in their entirety of the Building known as Xxx Xxxxxxxxxx
Xxxx, 0
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
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GROSS
RENTABLE AREA
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OF
PREMISES:
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49,600
square feet
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LEASE
TERM:
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Seven
(7) "lease years" (as defined in Article 1)
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OPTION
TO TERMINATE:
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After
64th
month of the Lease Term with 12 months prior written
notice.
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ANNUAL
BASE RENT:
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See
Article 2 - Fixed Rent
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TENANT'S
PROPORTIONATE SHARE:
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11.765%,
subject to adjustment as set forth in
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Article
3
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PERMITTED
USE:
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General
offices, and as and for recording studios for “books on tape” and/or a
call center.
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BUILDING
ADDRESS:
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0
Xxxxxxxxxx Xxxxxx
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Xxxxxx,
Xxx Xxxxxx 00000
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4
THIS
AGREEMENT, made this day of September , 2006 by and between:
WASHINGTON
PARK FIDELCO, LLC, a New Jersey limited liability company, with offices at
000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Landlord"),
and
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AUDIBLE,
INC., a New Jersey Corporation, with offices at 00 Xxxxxxxxxxx Xxxx.
#000,
Xxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Tenant").
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W I T N E S S E T H:
THAT
Landlord, for and in consideration of the rentals, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, its
successors and assigns to be paid, kept and performed, has demised and leased,
and by these presents does demise and lease, unto Tenant, and Tenant does hereby
take and hire from Landlord upon and subject to the conditions hereinafter
set
forth, the certain premises (the "Premises") constituting the 16th
and
17th
floors
in their entirety of the building (the "Building") known as Xxx Xxxxxxxxxx
Xxxx,
0 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000. The Building contains 421,600
square feet of gross rentable area and is located on certain land (the "Lot")
designated as Lot 18 and in Block 32 on the Tax Map of Newark, New Jersey.
The
Premises have a gross rentable area of approximately 49,600 square feet of
floor
area. In addition, Tenant and its agents, employees and invitees shall have
the
right, in common with Landlord and other tenants of the Building, and their
respective agents, employees and invitees, to use the common areas and
facilities located at the Building and Lot as provided in Article 5 of this
Lease. A diagram of the Premises is annexed hereto as Exhibit A.
The
parties acknowledge that there are multiple methods of computing rentable area
and hereby agree for the purposes of this Lease that the square footage of
the
Premises and the Building shall be as set forth hereinabove. Notwithstanding
anything to the contrary contained in this Lease, the recital herein of the
square footage of the Premises is for descriptive purposes only and Tenant
shall
have no right to terminate this Lease or receive any adjustment or rebate of
any
Fixed Rent or additional rent (as said terms are hereinafter defined in Article
2) payable hereunder if said recital is incorrect. Tenant agrees to pay the
full
Fixed Rent and additional rent set forth herein in consideration for the use
and
occupancy of the Premises, regardless of the actual number of square feet
contained therein.
TO
HAVE
AND TO HOLD the Premises unto Tenant, its successors and assigns, for a term
of
seven years, four months commencing on the Commencement Date and expiring on
the
Expiration Date as provided in Article 1 hereof.
IT
IS
FURTHER understood and agreed by and between the parties hereto as follows:
5
A R T I C L E 1.
TERM
Section
1.
The
term hereof shall commence on March 1, 2007 (the "Commencement Date") and expire
at 6:00 p.m. on the date (the “Expiration Date”) which shall be seven (7) lease
years (as hereinafter defined) after the Commencement Date. Subject to the
terms
and provisions of Section 5 of this Article 1, if Tenant occupies the Premises
prior to the date specified hereinabove as the Commencement Date, the
Commencement Date shall be the date of such earlier occupancy and the Expiration
Date shall be seven (7) lease years thereafter.
Section
2.
Tenant
shall have a one (1) time only right to terminate this Lease, such termination
to be effective as of 11:59 p.m. on the last day of the 64th month of the term
hereof (the "Early Termination Date"), provided Tenant satisfies each of the
following conditions:
(i) Tenant shall give Landlord written notice of Tenant's
election to exercise the right of termination set forth hereinabove no later
than the last day of the 54th month of the term hereof. Time is of the
essence with respect to such notice, and failure of Tenant to give such notice
within the aforesaid time period shall constitute a binding and conclusive
waiver of Tenant's right to terminate the Lease as set forth
hereinabove.
(ii) Tenant shall not be in default beyond any applicable cure
periods under the terms of this Lease on the date Landlord receives Tenant's
notice exercising Tenant's right of termination, and/or on the Early Termination
Date.
Section
3.
The
first "lease year" shall be the period commencing on the Commencement Date
and
ending twelve (12) calendar months thereafter, provided, however, that if the
Commencement Date is not the first day of the month, the first lease year shall
commence on the Commencement Date and end twelve (12) calendar months from
the
last day of the month in which the Commencement Date occurs. Each succeeding
twelve (12) calendar month period thereafter shall be a lease year until the
end
of the 72nd
month of
the lease. The last lease year shall be sixteen (16) months.
Section
4.
Within
ten (10) days after the Commencement Date both parties shall execute a
Commencement Date Agreement substantially in the form attached hereto as Exhibit
B.
Section
5.
From and
after the date hereof, Landlord shall permit Tenant to enter the Premises for
the purpose of preparing the same for Tenant’s occupancy. Tenant shall not be
obligated to pay Fixed Rent and additional rent for the Premises prior to the
Commencement Date, but Tenant shall otherwise be obligated to comply with all
of
the other terms and provisions of this Lease from and after the date hereof.
Tenant’s right to enter the Premises prior to the Commencement Date, as
aforesaid, shall be subject to Landlord’s reasonable rules and regulations.
Prior to any such entry, Tenant shall procure and maintain an adequate workers’
compensation insurance policy and shall otherwise comply with all insurance
provisions of this Lease. In addition to the foregoing, all waiver and indemnity
provisions of this Lease shall apply upon Tenant’s early entry onto the
Premises. Landlord shall not be liable for loss or damage to any work or
property of Tenant. Tenant shall not be permitted to conduct its business
operations at the Premises until the Commencement Date.
6
A R T I C L E 2.
FIXED
RENT
Section
1.
Tenant
covenants to pay to Landlord for and during each lease year of the term hereof
a
minimum annual basic rental (hereinafter referred to as the "Fixed Rent") as
follows:
(i)
For
and
during the first (1st)
lease
year, Tenant shall pay Landlord Fixed Rent at the rate of Nine Hundred Forty
Two
Thousand Four Hundred and 00/100 ($942,400.00) Dollars per annum payable in
equal monthly installments of $78,533.33 each. Notwithstanding the foregoing,
Fixed Rent shall xxxxx for the first, third, fifth and seventh months of the
first lease year.
(ii)
For
and
during the second (2nd) lease year, Tenant shall pay Landlord Fixed Rent at
the
rate of One Million Four Thousand Four Hundred and 00/100 ($1,004,400.00)
Dollars per annum payable in equal monthly installments of $83,700.00 each.
(iii)
For
and
during the third (3rd) lease year, Tenant shall pay Landlord Fixed Rent at
the
rate of One Million Seventy Eight Thousand Eight Hundred and 00/100
($1,078,800.00) Dollars per annum payable in equal monthly installments of
$89,900.00 each.
(iv)
For and
during the fourth (4th) lease year, Tenant shall pay Landlord Fixed Rent at
the
rate of One Million One Hundred Fifty Three Thousand Two Hundred and 00/100
($1,153,200.00) Dollars per annum payable in equal monthly installments of
$96,100.00 each.
(v)
For
and
during the fifth (5th) lease year, Tenant shall pay Landlord Fixed Rent at
the
rate of One Million Two Hundred Twenty Seven Thousand Six Hundred and 00/100
($1,227,600.00) Dollars per annum payable in equal monthly installments of
$102,300.00 each.
(vi)
For
and
during the sixth (6th) lease year, Tenant shall pay Landlord Fixed Rent at
the
rate of One Million Two Hundred Sixty Four Thousand Eight Hundred and 00/100
($1,264,800.00) Dollars per annum payable in equal monthly installments of
$105,400.00 each.
(vii)
For
and
during the seventh (7th) lease year (which shall be 16 months), Tenant shall
pay
Landlord Fixed Rent at the rate of One Million Three Hundred Thirty Nine
Thousand Two Hundred and 00/100 ($1,339,200.00) Dollars per annum payable in
equal monthly installments of $111,600.00 each.
Section
2.
Fixed
Rent shall be payable in equal monthly installments, as aforesaid, in advance
on
the first day of each and every calendar month of the term hereof in lawful
money of the United States of America at the office of Landlord or at such
other
place as may hereafter be designated by Landlord. Fixed Rent for a partial
month
shall be prorated. If the Commencement Date shall be other than the first day
of
a calendar month, Tenant shall pay, on the Commencement Date, the proportionate
amount of Fixed Rent for the balance of such month. One full monthly installment
of Fixed Rent shall be due and payable upon execution of this Lease by Tenant.
Fixed Rent shall be paid to Landlord without notice or demand and without
deduction, set-off or other charge therefrom or against the same.
Section
3.
All
sums other than Fixed Rent payable by Tenant under this Lease shall be deemed
to
be additional rent regardless of to whom such sums may be payable. Landlord
shall have the same rights and remedies against Tenant with respect to the
nonpayment of additional rent as it has with respect to the nonpayment of Fixed
Rent. The term "rent" in this Lease means Fixed Rent and additional
rent.
7
A R T I C L E 3.
PROPORTIONATE
SHARE
Wherever
this Lease shall require Tenant to pay "its Proportionate Share" of any item
of
expenditure or of any sum, Tenant's Proportionate Share shall be deemed to
be
11.765% of the total amount of such item or sum applicable to the Building
or
the Lot, which Proportionate Share reflects the agreed upon ratio of the gross
rentable area of the Premises to the total gross rentable area of the Building
as set forth herein. Tenant's Proportionate Share shall be adjusted (i) from
time to time if Landlord shall make additions to or subtractions from the square
footage of the floor area of the Building or the Premises, and (ii) if Landlord
shall construct additional buildings on the Lot or (iii) as set forth in Article
33 or 43 hereof.
A R T I C L E 4.
INSURANCE
Section
1.
Tenant
at its own cost and expense, throughout the term of this Lease, for its own
benefit and for the benefit of Landlord as an additional named insured
thereunder, shall maintain (or reimburse Landlord for maintaining, if such
be
the case) general public liability insurance against claims for personal injury,
death, or property damage occurring upon, in or about the Premises, the
Building, or in or about the adjoining streets, sidewalks, parking areas and
passageways, such insurance to afford protection to the limit of not less than
One Million ($1,000,000.00) Dollars in respect to injury or death to a single
person, and to the limit of not less than One Million ($1,000,000.00) Dollars
in
respect to any one accident, and to the limit of not less than One Million
($1,000,000.00) Dollars in respect to property damage. Landlord reserves the
right to increase such coverage limits if, in the reasonable opinion of
Landlord, such coverage becomes inadequate or is less than that commonly
maintained by tenants in similar buildings in the area for uses similar to
Tenant’s use. Such policies shall name Landlord as an additional insured and
shall be primary and non-contributing with any other insurance carried by
Landlord.
Section
2.
In
addition to the insurance required to be carried by Tenant pursuant to Section
1
of this Article 4, Tenant shall provide Landlord, at its own cost and expense,
and keep in force during the term of this Lease, (i) fire and casualty insurance
with broad form extended coverage, including, but not limited to, coverage
for
vandalism and malicious mischief in the amount of the full replacement cost,
from time to time, of Tenant's trade fixtures, equipment, inventory and other
contents of the Premises, and (ii) Worker's Compensation insurance in accordance
with the requirements of the State of New Jersey.
Section
3.
In the
event that Tenant fails to provide any insurance policy or coverage as required
or provided for in this Article 4 and such failure continues for five (5) days
after notice to Tenant, and Landlord elects to obtain same, Tenant shall
promptly upon written notice reimburse Landlord for the cost thereof and shall
thereafter pay to Landlord in equal monthly installments in advance together
with regularly accruing installments of Fixed Rent, one-twelfth (1/12) of the
reasonably estimated annual cost of the premium(s) for such insurance coverage
required to be paid by Tenant, which sums shall be payable by Tenant to Landlord
as additional rent. The monthly sums required to be paid by Tenant to Landlord
thereafter as provided in this Section 3, shall be employed by Landlord as
a
fund to replace such insurance policies as same expire.
Section
4.
All
policies of insurance obtained by Tenant with respect to the Premises and its
use and occupancy thereof and all policies of insurance required by this Lease
shall be written by reputable companies authorized to do business in New Jersey
and shall be reasonably acceptable to Landlord and to Landlord's mortgagee.
Certificates of such policies shall, if such policies are procured by Tenant,
be
delivered to Landlord and endorsed "premium paid" by the company or agency
issuing the same or shall be accompanied by other evidence reasonably
satisfactory to Landlord that the premiums thereon have been paid not less
than
thirty (30) days prior to the expiration of any then current policy. All
policies obtained by Tenant shall provide that the carrier shall endeavor to
provide Landlord at least thirty (30) days prior written notice of cancellation.
Tenant shall promptly notify Landlord of any change in status of its insurance
coverage. It is the intention of the parties that Landlord shall at all times
during the term of this Lease be in possession of paid up policies of insurance
which are in full force and effect.
8
Section
5.
Neither
Landlord, its servants, agents or employees, nor any mortgagee of the Premises
shall be liable or responsible for, and Tenant hereby releases Landlord, its
servants, agents or employees and any such mortgagee of the Premises from,
all
liability and responsibility to Tenant and any person claiming by, through
or
under Tenant, by way of subrogation or otherwise, for any injury, loss or damage
to any person or property in or around the Premises or to Tenant's business
irrespective of the cause of such injury, loss or damage unless such damage
was
caused by the gross negligence or wilful misconduct of Landlord, and Tenant
shall require its insurers to include in all of Tenant's insurance policies
which could give rise to a right of subrogation against Landlord, its servants,
agents or employees, or any mortgagee of the Premises a clause or endorsement
whereby the insurer waives any rights of subrogation against Landlord, its
servants, agents or employees and any such mortgagee of the Premises or permits
the insured, prior to any loss, to agree with a third party to waive any claim
it may have against said third party without invalidating the coverage under
the
insurance policy. If such waiver of subrogation shall not be, or shall cease
to
be, obtainable without additional charge or at all, the Tenant shall so notify
Landlord promptly after learning thereof. In such case, if the Landlord shall
so
elect and shall pay the insurer's additional charge therefor, such waiver of
subrogation shall be included in the policy.
Section
6.
Landlord
shall throughout the term of this Lease maintain fire insurance policies with
full extended coverage provisions with respect to the Building, which insurance
coverage shall be in such amounts as shall be required by Landlord's first
mortgagee. If there is no such mortgagee, Landlord shall maintain such coverage
in an amount equal to the full replacement value of the Building.
A R T I C L E 5.
COMMON
AREAS AND PARKING
Section
1.
Tenant
shall have the nonexclusive right to use, in common with Landlord and other
tenants of the Building (subject to reasonable rules from time to time made
by
Landlord and uniformly applied to all tenants), the common lobbies, entrances,
exits, restrooms, loading dock, passenger and freight elevators of the Building
and the parking areas, walkways, sidewalks and driveways constructed on the
Lot
(the "Common Areas"). Attached hereto as Exhibit C are the current Rules and
Regulations applicable to the Premises and the Building.
Section
2.
Landlord reserves the following rights in and to the Common Areas, the Building
and the Premises: (a) the right to install, use, maintain, remove, repair,
and
replace pipes, ducts, conduits, wires and appurtenant meters and equipment
(hereinafter collectively "Pipes") serving any part of the Building to be
located above ceiling surfaces, below floor surfaces, within walls, or in
central core areas. Landlord reserves the right to relocate any Pipes whether
located within or outside of the Premises, provided that any such Pipes
relocated within the Premises shall not unreasonably interfere with Tenant’s use
of the Premises. Landlord shall repair any damage caused by such relocation,
including the restoration of decorations; (b) the right to alter or relocate
any
of the Common Areas and to make such changes in, alterations of or deletions
from the Common Areas as Landlord may determine to do, provided, that no such
alteration, relocation or change shall unreasonably interfere with Tenant's
use
of the Premises; and (c) the right to use and grant easements on, over or under
the Lot and to dedicate for public use portions thereof without Tenant's
consent, provided that no such grant or dedication shall unreasonably interfere
with Tenant's use of the Premises.
Section
3.
(a)
Subject to all of the terms and provisions of this Article 5, Section 3, and
provided Tenant is not in default of any of the monetary terms and conditions
of
this Lease beyond the expiration of any applicable notice and cure periods,
during each lease year of the term hereof, Landlord shall provide to Tenant
Sixty (60) parking spaces ("Spaces") at no cost to Tenant, all such Spaces
to be
in one or more of the parking lots shown on Exhibit D annexed hereto located
within a two (2) block radius of the Building ("Parking Lots"). Initially,
the
Spaces shall be in the Parking Lot adjacent to the Building (the “Adjacent
Parking Lot”) and in the Parking Lot bounded by Xxxxx Xxxxxx, Xxxxxx Xxxxxx and
University Avenue. Landlord shall have the right to change such Parking Lots
upon notice to Tenant but shall use commercially reasonable efforts to provide
Tenant with Spaces in the Adjacent Parking Lot. In the event that Tenant
requires additional spaces in excess of the Spaces (the “Additional Spaces”),
Tenant shall notify Landlord and to the extent available, Tenant shall be
permitted to rent the Additional Spaces by paying Landlord the “Parking Charges”
(as said term is hereinafter defined) for each Additional Space required by
Tenant.
9
(b) Notwithstanding
anything to the contrary in this Lease, the exact location of all Spaces and
Additional Spaces shall be determined from time to time by Landlord in its
sole
discretion. Landlord shall be entitled to divide the Spaces and the Additional
Spaces between two or more Parking Lots. Tenant agrees that it and the persons
utilizing the Spaces and the Additional Spaces shall comply with all reasonable
rules and regulations of Landlord and the owner or operator of the Parking
Lots
at which such Spaces and/or Additional Spaces are located. Tenant hereby
acknowledges that the Parking Lots may not be owned or operated by Landlord.
Therefore, Tenant and anyone using the Spaces and/or Additional Spaces provided
hereunder, shall look solely to the owner or operator of such Parking Lots
for
the recovery of any damages suffered as a result of, or in connection with,
the
use of such Spaces and/or Additional Spaces. Notwithstanding anything to the
contrary herein, in no event whatsoever shall Landlord be required to provide
Spaces or Additional Spaces while Tenant is in monetary default hereunder beyond
the expiration of any applicable notice and cure periods.
(c) Tenant
hereby acknowledges and agrees that Tenant’s use of the Spaces and the
Additional Spaces is a license revocable at will by Landlord at any time that
Tenant is in monetary default hereunder beyond the expiration of any notice
and
cure periods; provided, however, if prior to the termination of this Lease
by
Landlord, Tenant shall have fully cured the circumstances giving rise to such
monetary default, and no other monetary default hereunder then exists, Landlord
agrees to reinstate Tenant’s right to use the Spaces and the Additional Spaces.
The foregoing shall not in any way limit any of the rights and remedies which
may be available to Landlord hereunder or at law and/or equity it being
expressly understood and agreed that Landlord’s reinstatement of Tenant’s right
to use the Spaces and the Additional Spaces shall not preclude Landlord from
proceeding with the exercise of any remedies available to it as a result of
Tenant’s default hereunder.
(d) As
used
in this Lease, the term "Parking Charges" shall mean the following:
(i) solely
during the first lease year of the term hereof, AParking
Charges@
shall
mean ($125.00) Dollars per month per Additional Space;
(ii) for
periods of time during the term of this Lease other than the first lease year
of
the term, AParking
Charges@
shall
mean the amount which would then be charged Landlord by the owner or operator
of
the Parking Lots, expressed as a monthly amount. Parking Charges shall change
as
the amount so charged Landlord by the owner or operator of the Parking Lots
changes.
(e) Parking
Charges shall be paid in monthly installments as directed by Landlord, in
advance, without previous demand therefor and without counterclaim, deduction
or
setoff. Parking Charges shall be paid together with, and to the same address
as,
monthly installments of Fixed Rent. It is expressly understood and agreed that
Parking Charges are in addition to, and not in lieu of or substitution of,
Fixed
Rent or any other items of additional rent payable under this Lease. No portion
of any Parking Charges paid by Tenant shall be credited against
Tenant=s
obligation to pay Fixed Rent or any other item of additional rent under this
Lease. Parking Charges shall be deemed additional rent under this
Lease.
10
A R T I C L E 6.
REPAIRS
Section
1.
Tenant
shall take good care of the Premises and fixtures and appurtenances therein,
and
at its own cost and expense make all non-structural repairs thereto as and
when
reasonably needed to preserve them in good working order and condition,
reasonable wear and tear and damage from the elements and casualty excepted.
Notwithstanding the foregoing, all damage or injury to the Premises or to any
other part of the Building or the Lot, or to its fixtures or appurtenances,
whether requiring structural or non-structural repairs, caused by the negligence
or wilful misconduct of Tenant, or its employees, invitees, licensees or agents,
shall be repaired promptly by Tenant at its sole cost and expense or, at
Landlord's election, may be repaired by Landlord in which event Tenant shall,
promptly upon demand, reimburse Landlord for any actual and out-of-pocket costs
and expenses reasonably incurred.
Section
2.
All
alterations, changes, additions or improvements to the Premises installed by
Tenant (or by Landlord at Tenant's request) shall be preserved in good working
order and repair (and replaced as required) by Tenant at its sole cost and
expense.
Section
3.
All
repairs and replacements and all other property attached to and becoming a
part
of the Premises or the Building by or on behalf of Tenant shall, immediately
upon the expiration or earlier termination of the term hereof, be and become
the
property of Landlord without payment therefor by Landlord and shall be
surrendered to Landlord upon the expiration or earlier termination of the term
hereof. Upon the expiration or earlier termination of the term hereof, Tenant
shall surrender the Premises to Landlord in good order, condition and repair,
subject to reasonable wear and tear resulting from the Permitted Use and
casualty damage.
A R T I C L E 7.
COMPLIANCE
WITH LAW
Section
1.
Tenant
covenants throughout the term of this Lease at Tenant's sole cost and expense,
promptly to comply with all laws and ordinances and the orders, rules,
regulations and requirements of all federal, state and municipal governments
and
appropriate departments, commissions, boards and offices thereof and the orders,
rules and regulations of any Board of Fire Underwriters or similar body or
agency where the Premises are situated, or any body, now or hereafter
constituted, exercising similar functions, foreseen or unforeseen, ordinary
or
extraordinary, to the extent arising out of Tenant's use and occupancy of the
Premises.
Section
2.
Tenant
will observe and comply with the reasonable requirements of the carriers of
any
policy of insurance respecting the Premises and/or the Building and the
requirements of all policies of public liability, fire, casualty and all other
policies of insurance at any time in force with respect to the Premises and/or
the Building and the equipment and contents thereof. Tenant shall not do, or
permit anything to be done in the Premises, or bring or keep anything therein,
which shall, in any way, increase the cost of fire insurance covering the
Premises and/or the Building, except as contemplated as part of the Permitted
Use.
Section
3.
In the
event that Tenant shall fail or neglect to comply with the aforesaid laws,
ordinances, rules, orders, regulations and requirements, or any of them, or
in
case Tenant shall fail or neglect to make any necessary repairs as and to the
extent required of Tenant pursuant to this Lease, then after thirty (30) days
prior written notice from Landlord (except in an emergency when no notice shall
be required), Landlord or its agents may, without any obligation so to do,
enter
the Premises and make said repairs and comply with any and all of the said
laws,
ordinances, rules, orders, regulations and requirements at the cost and expense
of Tenant, and in case of Tenant's failure to pay therefor, the said cost and
expense shall be added to the next month's rent, together with interest at
10%
per annum, (or the maximum amount permitted by law, whichever shall be less)
and
shall be due and payable as such.
11
Section
4.
During
the term of this Lease, Landlord shall comply with all applicable governmental
laws, ordinances, rules and regulations which are not the obligation of Tenant
pursuant to this Article 7. Landlord hereby represents that on the date hereof,
the certificate of occupancy for the Building is in effect and that there are
no
municipal code violations against the Building.
A R T I C L E 8.
ALTERATIONS
AND IMPROVEMENTS
Section
1.
Tenant
shall make no structural alterations, changes or improvements, in, to or about
the Premises, without the prior written consent of Landlord which shall not
be
unreasonably withheld, conditioned or delayed. Tenant may, at Tenant's expense,
without Landlord's consent but otherwise subject to the provisions of this
Article, make alterations, changes or improvements to the Premises which are
non-structural and which do not affect utility service or plumbing or electrical
lines. Tenant may make cosmetic changes to the Premises without Landlord’s
consent. In making any alterations, changes or improvements, other than cosmetic
changes. Tenant shall, subject to Section 2 of this Article, use contractors
or
mechanics first approved in writing by Landlord. If Landlord shall consent
to
any structural alteration, change or improvement, working drawings for all
work
shall be submitted to Landlord for approval before any such work is performed.
Promptly after completion of any alteration, change or improvement (structural
or non-structural), Tenant shall provide to Landlord "as built" plans showing
all work performed. Without limiting the foregoing, all alterations, changes
and
improvements when completed shall be of such a character so that same shall
not:
(i) adversely affect the value of the Premises; or (ii) reduce the size of
the
Premises or the cubic content thereof; or (iii) change the character of the
Premises. No alteration, change, or improvement shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be required from time
to time, all permits and authorizations of the various governmental agencies
having jurisdiction thereover, and Landlord agrees to join in the application
for such permits or authorizations whenever such action is necessary.
Section
2.
Landlord hereby reserves the right, itself, to make or to cause to be made
all
alterations, changes or improvements required by Tenant, on behalf of Tenant,
and, with respect to all such alterations, changes or improvements other than
those which are part of the Work and/or Landlord’s Work (as defined in Article
38), Tenant shall pay Landlord the actual cost thereof together with ten (10%)
percent for overhead. If Tenant is permitted to perform the work on its own
behalf Landlord shall be entitled to receive ten (10%) percent of the cost
thereof for general supervision. All alterations, changes or improvements (other
than Tenant's trade fixtures) installed in the Premises shall be and become
the
property of Landlord without payment therefor by Landlord, and shall be
surrendered to Landlord upon the expiration or sooner termination of the term
of
this Lease, except those installed by Tenant that can be depreciated by Tenant
for tax purposes. Tenant shall have the right to remove its trade fixtures
and
personal property from the Premises; provided, however, that Tenant shall,
at
its own cost and expense, repair any damage caused by such removal and shall
restore the Premises to the condition that it was in prior to the installation
of Tenant's said trade fixtures and personal property.
Section
3.
Except
as above specifically contemplated, Tenant shall not in any manner make or
suffer to be made any alterations, changes, additions or improvements to or
of
the Premises or the Building.
A R T I C L E 9.
CONSTRUCTION
LIENS
Tenant
shall not suffer or permit any liens, construction liens, claims, notices of
unpaid balance and right to file lien, or the like to be filed against the
Premises or the Building or any part thereof by reason of work, labor, services,
equipment or materials supplied or claimed to have been supplied to or on behalf
of Tenant or anyone holding the Premises or the Building or any part thereof
through Tenant. If any such liens, construction liens, claims, notices of unpaid
balance and right to file lien, or the like shall at any time be filed against
the Premises or the Building, Tenant shall cause the same to be discharged
of
record within thirty (30) days after being given written notice of the filing
of
the same, or, Tenant may, in lieu of discharging same within said thirty (30)
days, post an insurance company surety bond providing for and securing due
payment thereof and saving Landlord harmless and indemnifying it with respect
thereto. Tenant shall not have any right whatsoever to subject the interests
of
Landlord in the Premises or the Building or in the fee simple title thereto
to
any construction liens or other liens whatsoever and nothing contained in this
Lease shall be deemed to operate as an express or implied consent to Tenant
to
subject the interests of Landlord to any such lien or liens.
12
A R T I C L E 10.
WASTE
Tenant
covenants not to permit the Premises to fall into disrepair or to do or suffer
any waste or damage, disfigurement or injury to the Premises, the Building
or
the Lot, or the fixtures and equipment thereof, or permit or suffer any
stationary overloading of the floors thereof. Landlord hereby represents that
the floor load of the Building is eighty (80) pounds per square
foot.
A R T I C L E 11.
INSPECTION
BY LANDLORD
Section
1.
Tenant
agrees to permit Landlord and the authorized representatives of Landlord to
enter the Premises at all reasonable times and upon reasonable notice (except
in
an emergency when no notice shall be required) for the purpose of inspecting
the
same, for the purpose of performing cleaning services and making electrical
surveys, and if Landlord so elects, but without any obligation so to do, for
the
purpose of making any necessary repairs to the Premises or the Building and
performing any work therein that may be necessary to comply with any laws,
ordinances, rules, regulations or requirements of any public authority or of
the
Board of Fire Underwriters or any similar body, or which Landlord may deem
reasonably necessary to prevent waste or deterioration in connection with the
Premises or the Building or for the purpose of performing any work required
to
be performed in connection with any provision of this Lease. Upon completion,
Landlord shall restore the Premises to the condition that existed prior to
such
repair as reasonably practicable under the circumstances. Any such entry by
Landlord shall not unreasonably interfere with Tenant’s use of the Premises.
Nothing herein shall imply any duty upon the part of Landlord to do any work
which, under any provision of this Lease, Tenant may be required to perform,
and
the performance thereof by Landlord shall not constitute a waiver by Landlord
of
Tenant's default in failing to perform the same. Landlord may, during the
progress of any work in the Premises or the Building, keep and store in the
Building but outside the Premises all necessary materials, tools and equipment.
Except for Landlord gross negligence or wilful misconduct, Landlord shall not
in
any event be liable for inconvenience, annoyance, disturbance, loss of business
or other damage to Tenant by reason of making repairs or the performance of
any
work in the Premises or the Building, or on account of bringing materials,
supplies and equipment into or through the Premises during the course thereof,
and the obligations of Tenant under this Lease shall not thereby be affected
in
any manner whatsoever.
Section
2.
Landlord is hereby given the right upon prior reasonable notice during usual
business hours to enter the Premises and to exhibit the same for the purposes
of
sale, lease or mortgage and during the final six (6) months of the term Landlord
shall be entitled to display on the Building in such manner as not unreasonably
to interfere with Tenant's business the usual "For Sale" or "To Let" signs
and
Tenant agrees that such signs may remain, unmolested, upon the Premises.
13
A R T I C L E 12.
ASSIGNMENT
AND SUBLETTING
Section
1.
Provided
that this Lease shall be in good standing and that Tenant shall not be in
default of any of its obligations hereunder beyond any applicable cure periods,
Tenant may, without Landlord's consent, assign this Lease to (a) any corporation
or entity resulting from a merger or consolidation of the Tenant entity,
provided that the total net worth of such assignee, after such consolidation
or
merger, shall be at least equal to $20,000,000.00;
or (b)
to Tenant's parent company, or to any wholly owned subsidiary of Tenant or
Tenant's parent company; and provided further that such successor shall execute
an instrument in writing reasonably satisfactory to Landlord's counsel fully
assuming all of the obligations and liabilities imposed upon Tenant hereunder
and shall deliver the same to Landlord. No such assignment shall operate to
relieve Tenant from any liability hereunder.
Section
2.
Except
as set forth in Section 1 above, Tenant shall not, either voluntarily or
involuntarily, directly or indirectly, by operation of law or otherwise, assign,
transfer, mortgage or otherwise encumber this Lease, or sublet the whole or
any
part of the Premises, or permit the Premises or any part thereof to be used
or
occupied by others, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. The giving of such
consent by Landlord shall apply only to the specific transaction thereby
authorized, and shall not be construed to relieve Tenant from obtaining
Landlord's consent to any other or subsequent such assignment, transfer,
mortgage or other encumbrance, subletting, use or occupancy, or as modifying
or
limiting Landlord's rights under this Article 12.
Section
3.
Notwithstanding the occurrence of any transaction contemplated by Section 1
or 2
of this Article, Tenant shall, nevertheless, remain primarily liable to perform
all covenants and conditions of this Lease. In addition, Tenant shall not be
released or discharged from such liability by reason of any modification,
amendment or supplement of this Lease agreed to by Landlord and any assignee
or
subtenant solely or by reason of Landlord's failure to enforce any of its rights
or remedies hereunder against any such assignee or subtenant. At least ten
(10)
days prior to the effective date thereof, Tenant shall furnish Landlord with
a
conformed copy of any such assignment or sublease, together with an agreement
in
writing executed by any such assignee or subtenant to assume the obligations
imposed by this Lease upon the Tenant and to perform the same in accordance
with
the terms hereof, and pursuant to which any subtenant agrees that if this Lease
shall be terminated by reason of Tenant's default hereunder or otherwise, at
Landlord's option, to be exercised by notice to the subtenant, such sublease
shall continue in full force and effect and the subtenant will attorn to
Landlord. If this Lease be assigned, or if the Premises or any part thereof
be
sublet, used or occupied by anybody other than Tenant, Landlord may collect
Fixed Rent and additional rent from the assignee, subtenant or occupant, and
apply the net amount collected to the Fixed Rent and/or additional rent reserved
hereunder, but no such collection shall be deemed a waiver of this covenant,
or
the acceptance of the assignee, subtenant or occupant as tenant, or a release
of
Tenant from the further performance by Tenant of the terms, covenants and
conditions of this Lease on the part of the Tenant to be performed. Any
violation of any provision of this Lease, whether by act or omission, by any
assignee, subtenant or occupant, shall be deemed a violation of such provision
by Tenant, it being the intention and meaning of the parties hereto that Tenant
shall assume and be liable to Landlord for any and all acts and omissions of
any
and all assignees, subtenants and/or other occupants.
Section
4.
Notwithstanding, and without limiting, any other provisions of this Article,
in
the event that Tenant shall request Landlord's consent to an assignment of
this
Lease or a subletting of all or any portion of the Premises, Landlord shall
have
the option, in lieu of granting or refusing any such consent, to cancel and
terminate this Lease, such option to cancel and terminate to be exercised not
later than twenty (20) days after Landlord receives from Tenant a notice
containing Tenant's request for Landlord's consent to an assignment or
subletting. Any such notice containing a request for consent shall contain
the
following information: (1) the name and business address of the proposed
assignee or subtenant; (2) the consideration to be paid by the proposed assignee
or sublessee to Tenant for such assignment or subletting; (3) all other business
terms and conditions of the proposed assignment or subletting transaction;
and
(4) such further and additional information as Landlord may request. If Landlord
shall exercise its said option to cancel and terminate this Lease, Fixed Rent,
additional rent and all other amounts payable by Tenant to Landlord shall be
adjusted as of the date any such assignee or sublessee enters into a direct
lease with Landlord, accepts possession of the Premises and thereafter commences
the payment of rent.
14
Section
5.
Without
limiting the foregoing, in the event that this Lease shall be assigned or all
or
any of the portion of the Premises shall be sublet, then and in that event,
seventy-five (75%) percent of the net proceeds, avails and profits of any such
assignment and/or sublease shall be paid by Tenant and shall constitute the
sole
and exclusive property of Landlord determined after the deduction of all
reasonable costs and expenses incurred by Tenant in connection with such
assignment or sublease including, without limitation, brokers’ fees, attorneys’
fees, tenant improvement allowances or work, and other inducements provided
by
Tenant. In calculating the net proceeds, avails and profits of any sublease
of
less than the entire Premises hereof, the rentals payable pursuant hereto and
the rentals payable pursuant to any such sublease shall be equitably allocated
to the portion of the Premises so being sublet and the net proceeds, avails
and
profits shall be determined accordingly. In connection with any assignment
of
this Lease, the said net proceeds, avails and profits shall include any amounts
paid to Tenant as the purchase price or other consideration for the transfer
of
any of Tenant's trade fixtures, equipment or inventory in excess of the then
reasonable fair market value thereof. Nothing herein shall be construed as
relieving Tenant, in the event of an assignment of this Lease or a subletting
of
all or a portion of the Premises, of the primary liability to Landlord for
the
full and faithful performance of the covenants and agreements contained in
this
Lease.
Section
6.
In the
event Tenant requests Landlord to approve any assignment of this Lease, or
subletting (or other form of occupancy by a third party) of the Premises, Tenant
shall pay Landlord a reasonable fee not to exceed $1,500 to cover Landlord's
costs for the preparation and/or review of said assignment or sublease, or
documents ancillary thereto, credit checks, business checks and other like
items.
A R T I C L E 13.
HOLD
HARMLESS AND INDEMNIFICATION
Section
1.
This
Lease is made upon the express condition that except for Landlord’s gross
negligence and wilful misconduct, Tenant agrees to and shall keep, save and
hold
Landlord free and harmless from and indemnify it against all liability,
penalties, losses, damages, costs, expenses, causes of action, claims and/or
judgments arising by reason of any injury in or about the Premises to any person
or persons, including without limitation, Tenant, its servants, agents and
employees, and damage in or about the Premises to any property of any kind
whatsoever, and to whomsoever belonging, including without limitation, damage
to
property of Tenant, its servants, agents and employees, and other parties,
which
such injury to persons or damage to property occurs as a result of or from
any
cause or causes whatsoever, including, without limitation, damage from water
and/or steam leakage into or upon the Premises (or from the Premises), or its
appurtenances, or damage or injury occurring on or about the common areas,
sidewalks or parking areas adjacent thereto, during the term of this Lease
or
any occupancy hereunder. Tenant hereby covenants and agrees to indemnify,
protect and save Landlord harmless from all liability, judgments, claims, loss,
costs and obligations on account of or arising out of any such injuries and
damages however occurring, except to the extent occasioned by Landlord's wilful
misconduct or gross negligence, provided always, however, that if and to the
extent that Tenant receives any proceeds from applicable policies of insurance
with respect to same, then the amount of such proceeds shall be credited against
any amounts payable by Landlord to Tenant hereunder.
Section
2.
Tenant,
as a material part of the consideration to be rendered to Landlord, hereby
waives all claims against Landlord for damages to goods, equipment,
improvements, wares and merchandise in, upon or about the Premises and for
injuries to Tenant, its servants, agents, employees or third persons in or
about
the Premises from any cause arising at any time, except to the extent occasioned
by Landlord's wilful misconduct or gross negligence, provided always, however,
that if and to the extent that Tenant receives any proceeds from applicable
policies of insurance with respect to same, then the amount of such proceeds
shall be credited against any amounts payable by Landlord to Tenant hereunder.
15
Section
3.
Except
as otherwise specifically set forth in this Lease, each party shall bear the
cost of its own counsel incurred in connection with this Lease and Tenant's
use
and occupancy of the Premises.
A R T I C L E 14.
CASUALTY
Section
1.
In case
of any damage to the Building on the Lot by fire or other casualty occurring
during the term of this Lease or previous thereto, which renders the Premises
wholly untenantable so that the same cannot be repaired within one hundred
twenty (120) days from the happening of such damage, then the term hereby
created shall, at the option of Landlord or Tenant, terminate from the date
of
such damage. In the event Landlord elects to terminate the Lease for any reason
which is due to the inability to restore the same within the one hundred twenty
(120) day period, Landlord shall so notify Tenant within thirty (30) days of
the
happening of the fire or casualty, and in such event Tenant shall immediately
surrender the Premises and shall pay rent only to the time of such damage and
Landlord may re-enter and repossess the Premises free and clear of any rights
of
Tenant under this Lease. In the event Landlord can restore the Premises within
one hundred twenty (120) days, it shall so notify Tenant within thirty (30)
days
after the happening of the fire or casualty and the Lease shall remain in full
force and effect during the period of Landlord's restoration, except that rent
and additional rent shall xxxxx while the repairs and restoration are being
made, but the rent shall recommence upon restoration of the Premises and
delivery of the same by Landlord to Tenant. Landlord agrees that it will
undertake reconstruction and restoration of the damaged Premises with due
diligence and reasonable speed and dispatch.
Section
2.
If the
Building shall be damaged, or a portion of the Lot is damaged which materially
reduces the number of parking spaces on the Lot or materially and negatively
impacts access to the Building, but the damage is repairable in Landlord's
estimation, within one hundred twenty (120) days, Landlord agrees to repair
the
same with reasonable promptness. In such event, the rent and additional rent
accrued and accruing shall not xxxxx, except for that portion of the Premises
that has been rendered untenantable and as to that portion the rent shall xxxxx
based on equitable adjustments as reasonably determined by Landlord. If any
damage to the Building or Lot is not repairable in Landlord's estimation within
one hundred twenty (120) days, either party shall have the right to terminate
this Lease upon serving written notice of such election upon the other party.
In
addition, if the cost to repair same shall exceed 15% of the replacement of
the
Building, Landlord may at its option terminate this Lease upon serving written
notice of such election upon Tenant. Notwithstanding anything in this Lease
to
the contrary, Landlord shall have the option of terminating this Lease, and
shall not be required to repair any damage caused by any fire or other casualty,
if said fire or other casualty occurs during the last year of the term
hereof.
Section
3.
In
connection with Landlord's restoration as hereinafter referred to, in
determining what constitutes reasonable promptness consideration shall be given
to delays caused by acts of God, strikes, and other causes of Force Majeure
beyond the Landlord's control.
Section
4.
Tenant
shall immediately notify Landlord in case of fire or other damage to the
Premises.
Section
5.
Notwithstanding anything contained in this Article 14, if repairs are not
completed within one hundred fifty (150) days of the date of damage, subject
to
delays due to Force Majeure not to exceed sixty (60) days, Tenant shall have
the
right prior to the completion of such work or Tenant's taking possession of
the
Premises to terminate this Lease, in which event Landlord and Tenant shall
thereupon be released of liability one to the other (with the exception,
however, of any unpaid Fixed Rent and/or additional rent accrued through the
date of termination, which shall remain the responsibility of Tenant), and
the
within Lease shall be deemed null and void.
16
Section
6.
Anything contained in the within Lease Agreement to the contrary
notwithstanding, it is understood and agreed by and between the parties hereto
that in no event shall Landlord be obligated to expend any funds in connection
with any repair or restoration work in excess of the proceeds of insurance
policy payments which are made available to Landlord by insurance carriers
and
by any mortgagee of the Premises and the Building. Landlord's obligations in
connection with such repair and/or restoration work shall and are hereby
strictly limited to the replacement of the basic Building area as demised by
Landlord to Tenant as of the Commencement Date of the term hereof (including
the
Work) and in no event shall Landlord be obligated to replace, repair or restore
any improvements to the Premises or alterations thereof installed therein by
or
on behalf of Tenant nor shall Landlord be obligated in any event whatsoever
to
replace, repair or restore Tenant's leasehold improvements, personal property,
furniture, fixtures, equipment or the like. Landlord shall cooperate with Tenant
in obtaining insurance proceeds on Tenant’s leasehold improvements, personal
property, furniture, fixtures, equipment or the like, provided that Landlord
incurs no cost or expense in connection therewith.
A R T I C L E 15.
CONDEMNATION/EMINENT
DOMAIN
Section
1.
This
Lease and the term hereof shall terminate: (1) if the entire Premises shall
be
taken by condemnation or eminent domain; or (2) if a portion of the Lot (other
than the Building) is taken (x) materially reducing the number of parking spaces
on the Lot, or (y) materially and negatively impacting access to the Building;
or (3) at the option of Tenant (exercisable by notice given to Landlord within
thirty (30) days after the date after formal institution of the taking
proceedings by the filing of a Complaint or Declaration of Taking) if a material
part of the Premises shall be taken in any condemnation or eminent domain
proceeding(s). A taking of a "material part of the Premises", as such quoted
words are used herein, shall mean the condemnation or taking by eminent domain
of so much of the Premises, in excess of 15% of the area thereof, as shall
materially and adversely prevent Tenant from operating its business in the
Premises for the purposes for which the Premises were leased to Tenant or for
the purposes for which the Premises were being used at the date of such taking;
or (3) at the option of Landlord (exercisable by notice given to Tenant within
three (3) months after the date of taking), if more than 15% of the Lot or
if
more than 15% of the Building shall be taken by condemnation or eminent domain.
Section
2.
Any
termination of this Lease Agreement pursuant to the provisions of this Article
shall be effective upon the date of transfer of possession in connection with
the taking proceedings, and, upon such termination, Tenant shall be liable
only
for the payment of Fixed Rent, additional rent, impositions and other charges
herein, pro-rated to the date of such termination, and Landlord shall refund
any
payment in excess thereof to Tenant. Tenant may, if permitted by law, make
any
independent application by separate proceedings apart from the proceeding in
which Landlord shall be prosecuting its claim, to any condemning authority,
for
any award which might be independently payable to it in connection with Tenant's
moving expenses, business dislocation damages or for the taking of Tenant's
leasehold improvements, provided that no such application or any award rendered
pursuant thereto shall operate to diminish any award which would otherwise
be
payable to Landlord. Tenant waives its right to and agrees that it shall not
(i)
make any claim in or with respect to any condemnation or eminent domain
proceedings whatsoever or otherwise except as hereinabove specifically provided,
or (ii) make any claim against Landlord in any other action for the value of
the
unexpired portion of this Lease or the term hereof. Except as above specifically
provided, the total amount of all condemnation awards shall be the sole and
exclusive property of the Landlord, and Tenant shall not participate therein
or
in the negotiation thereof or have any rights whatsoever with respect to the
awards or the proceeds of any such proceedings.
Section
3.
In the
event that any part of the Premises is taken in any condemnation or eminent
domain proceedings and this Lease is not terminated pursuant to Section 1
hereof, then this Lease shall remain in full force and effect as to such
remaining portion, except that from and after the effective date of any such
taking, Tenant shall be entitled to an equitable reduction in the Fixed Rent
required to be paid hereunder in accordance with the value of the leasehold
before and after any such condemnation, due regard being given to any reduction
in square foot area of the Premises caused by such taking, the location of
the
areas which were taken in such proceedings, and the uses to which the Premises
might reasonably be put subsequent to the date of such taking. If Landlord
and
Tenant do not agree on the amount of such reduced rent, the same shall be
determined by arbitration as herein provided. Subject to the approval and
consent of any then mortgagee of the Premises and the Building and to the terms
and conditions of any mortgage upon the Premises and the Building and subject
to
the availability of the proceeds of any award for reconstruction and restoration
and the agreement of any mortgagee to make such proceeds available, Landlord
shall promptly reconstruct and restore the portion of the Premises remaining
after such taking to a complete architectural unit. Except as set forth herein,
any rebuilding or restoration by Landlord shall be strictly limited to the
basic
building structure as initially demised hereunder. In no event shall Landlord
be
obligated to expend any sums for such rebuilding or restoration in excess of
the
amount of money actually paid to and received by Landlord, net of all expenses,
from any condemning authority and/or from any mortgagee of the Premises and
the
Building to whom any such award may have been paid by such condemning authority.
The payment of any award by any condemning authority to Landlord's mortgagee
and
the application of such payment on account of Landlord's mortgage shall not
be
deemed to constitute receipt or constructive receipt of payment by Landlord.
All
condemnation proceeds shall be subject to the requirements of any mortgagee
of
the Premises and the Building that same be applied in reduction of such mortgage
balance (in which event Landlord shall not be obligated to restore the Premises)
and the remaining portion of any award, if any, not so applied shall at all
times be available to Landlord for construction and restoration purposes and
shall be the sole and exclusive property of Landlord. The balance of any such
proceeds shall, after completion of restoration and reconstruction, be retained
by Landlord. Monies paid "into Court" shall not be deemed to constitute payment
of such award to Landlord until Landlord agrees to accept the same and until
such monies are physically delivered to Landlord by the condemning authority
and
by Landlord's mortgagee, if any.
17
A R T I C L E 16.
BANKRUPTCY/INSOLVENCY
AND DEFAULT OF TENANT
Section
1.
If
during the term of this Lease, (a) Tenant shall make an assignment for the
benefit of creditors, or (b) a voluntary petition be filed by Tenant under
any
law having for its purpose the adjudication of Tenant a bankrupt, or the
extension of time of payment, composition, adjustment, modification, settlement
or satisfaction of the liabilities of Tenant or the reorganization or
liquidation of Tenant, or (c) a receiver be appointed for the property of Tenant
by reason of the insolvency or alleged insolvency of Tenant, or if (d) any
department of the state or federal government or any officer thereof or duly
authorized Trustee or Receiver shall take possession of the business or property
of Tenant by reason of the insolvency or alleged insolvency of Tenant, or if
(e)
an involuntary petition be filed against Tenant under any law having for its
purpose the adjudication of Tenant a bankrupt, or for the liquidation of Tenant;
and except with respect to items (a) and (b), supra,
of this
Section 1, which shall be non-curable events of default, if Tenant shall not
within ninety (90) days thereafter, remove, have dismissed and/or cure any
of
the foregoing, then Landlord may give Tenant notice of a default under this
Lease and if, within thirty (30) days after such notice, Tenant shall still
have
not removed and/or cured any of the foregoing; or if (f) any
Debtor-in-Possession ("so-called"), Receiver or Trustee pursuant to any
bankruptcy or insolvency law whether Federal or State shall attempt to assign
this Lease to any party or attempt to sublet all or any part of the Premises,
then the occurrence of any such event shall be deemed a breach of this Lease
and
this Lease shall, ipso facto,
upon
the happening of any of said events and at the election of Landlord, be
terminated and the same shall expire as if the day of the happening of such
event were the date herein specifically fixed for the expiration of the term,
and Tenant (or such Debtor-in-Possession, Receiver or Trustee as the case may
be) will then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided. If any of the aforesaid events occur
prior to the Commencement Date hereof, this Lease shall be ipso facto
terminated. Landlord reserves the right to file a claim against any assignee,
receiver or trustee of or for the Premises for damages and for loss of rent,
for
the full term of the Lease or otherwise, which Landlord may suffer, as a result
of the foregoing.
18
Section
2.
If,
during the term of this Lease, Tenant shall default in performance of any of
the
covenants of this Lease (other than the covenants for the payment of Fixed
Rent
and additional rent), or if any executions or attachments shall be issued
against Tenant or any of Tenant's property whereupon the Premises shall be
taken
or occupied by someone other than Tenant, then in any such event Landlord shall
be obligated to give to Tenant notice of any default or of the happening of
any
contingency in this Article referred to, and if at the expiration of thirty
(30)
days after such notice the default or the contingency upon which said notice
was
based shall continue to exist, or, in the event said default or contingency
cannot be cured within thirty days, if, at the expiration of thirty days after
such notice, Tenant has not commenced to cure said default or contingency and
shall not thereafter be diligently prosecuting said cure to completion.
Landlord, at its option, may terminate this Lease, and upon such termination
Tenant will quit and surrender the Premises to Landlord, but Tenant shall
nonetheless remain liable under the terms and conditions hereof as herein
provided.
Section
3.
If
Tenant shall fail to make any payment of Fixed Rent and/or additional rent,
or
any part of the same, within five (5) days of the date when due, Landlord may
immediately thereafter terminate this Lease and exercise all remedies available
hereunder, but Tenant shall nonetheless remain liable under the terms and
conditions hereof as herein; provided, however, that on two (2) occasions per
lease year, Tenant shall be given written notice of and a five (5) day “cure
period” before Landlord shall have the rights set forth above.
Section
4.
Upon any
termination of this Lease, Landlord or Landlord's agents and/or servants may
immediately or at any time thereafter re-enter the Premises and remove all
persons and all or any property therefrom either by summary dispossess
proceedings or by any suitable action or proceedings at law and may repossess
said Premises together with all additions, alterations and improvements thereto,
without such re-entry and repossession working a forfeiture or waiver of the
rents to be paid and the covenants to be performed by Tenant during the full
term hereof. In the event of termination of this Lease by reason of the
occurrence of any of the events described in this Article, or in the event
of
the termination of this Lease by summary dispossess proceedings or under
provisions of law now or at any time hereafter in force by reason of or based
upon or arising out of a default under or breach of this Lease on the part
of
Tenant beyond all applicable cure periods, or upon Landlord's recovering
possession of the Premises in any circumstances whatsoever, whether with or
without legal proceedings, by reason of or based upon or arising out of a
default under or breach of this Lease on the part of Tenant beyond all
applicable cure periods, Landlord may, at its option, at any time and from
time
to time re-let the Premises, or any part or parts thereof, for the account
of
Tenant or otherwise, and receive and collect the rents therefor, applying the
same first to the payment of such actual and out-of-pocket expenses as Landlord
may have reasonably incurred in recovering possession of the Premises, including
the legal expenses and reasonable attorneys' fees, and expenses of putting
the
same into good order or condition and preparing or altering the same for
re-rental and all other expenses, commissions and charges paid, assumed or
incurred by Landlord in re-letting the Premises or in connection with a
termination of this Lease by reason of Tenant's default and then to the payment
of monthly Fixed Rent and additional rent hereunder. Any such re-letting herein
provided for may be, at Landlord's option, for the remainder of the term of
this
Lease or for a longer or shorter period and/or for a higher or lower rent and/or
with the granting of concessions. In any such case and whether or not the
Premises, or any part thereof be re-let, Tenant shall pay to Landlord the Fixed
Rent, additional rent and all other charges required to be paid by Tenant
pursuant to this Lease up to the time of such termination of this Lease, or
of
such recovery of possession of the Premises by Landlord, as the case may be,
together with such actual and out-of-pocket expenses as Landlord may reasonably
incur for reasonable attorneys' fees, brokerage fees and the cost of putting
the
Premises in good order or for preparing same for re-rental, and thereafter
Tenant covenants and agrees, if required by Landlord, to pay to Landlord until
the expiration date of the term of this Lease, as herein provided, as and for
liquidated damages the equivalent of the amount of all the Fixed Rent reserved
herein, additional rent and all other charges required to be paid by Tenant,
less the net avails of re-letting, if any, and the same shall be due and payable
by Tenant to Landlord on the several rent days herein specified, that is to
say,
upon each of such rent days, Tenant shall pay to Landlord the amount of the
deficiency then existing (any deficiency in Fixed Rent and additional rent
to be
computed separately for each month). In computing such liquidated damages there
shall be added to the said deficiency such actual and out-of-pocket expenses
as
Landlord may reasonably incur in connection with re-letting, such as legal
expenses, reasonable attorneys' fees, brokerage, advertising, and for keeping
the Premises in good order or for preparing the same for re-letting. Landlord
shall use commercially reasonable efforts to mitigate its damages in the event
of a default by Tenant hereunder; provided, however, Landlord shall not be
required to re-let the entire Premises to a single tenant or undertake any
actions inconsistent with its then current leasing practices or market the
Premises preferentially to any other space or property which Landlord or its
affiliates have available for lease. Landlord shall be entitled to retain any
overage received as a result of its re-letting of the Premises and Tenant shall
have no rights therein or thereto.
19
Section
5.
Except
as set forth herein, no expiration or termination of the Lease term pursuant
to
Sections 1, 2, 3 or 6 of this Article 16 or by operation of law, or otherwise
(except as expressly provided herein), and no repossession of the Premises
or
any part thereof pursuant to Section 4 of this Article 16, or otherwise, shall
relieve Tenant of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination or repossession.
Section
6.
Without
limiting Landlord's rights and remedies under the preceding Sections of this
Article, if Tenant shall fail to make any payment, or perform any act on its
part to be made or performed, as in this Lease provided, Landlord may after
the
expiration of all applicable cure periods (but shall not be obligated to do
so),
without waiving or releasing Tenant from any obligation of Tenant contained
in
this Lease, make any such payment or perform any such act on the part of Tenant
to be made and performed, as in this Lease provided, in such manner and to
such
extent as Landlord may deem desirable, and in exercising any such rights
Landlord may pay necessary and incidental and reasonable costs and expenses,
employ counsel and incur and pay reasonable attorneys' fees. All sums so paid
by
Landlord and all reasonably necessary and incidental actual and out-of-pocket
costs and expenses reasonably incurred by Landlord in connection with the
performance of any such act by Landlord, together with interest computed thereon
at the rate which shall be two (2%) percent per annum in excess of the
prevailing interest rate charged by Chase Manhattan Bank, N.A. to its most
credit worthy customers ("Prime"), which interest rate is to be adjusted as
Prime fluctuates from time to time (or the maximum legal rate of interest then
prevailing, whichever shall be less), from the date of the making of such
expenditure by Landlord shall be deemed additional rent hereunder and, unless
otherwise expressly provided, shall be payable to Landlord upon demand or at
the
option of Landlord, may be added to Fixed Rent or additional rent then due
or
thereafter becoming due under this Lease, and Tenant covenants to pay any such
sum or sums, with interest as aforesaid, within five (5) days after demand,
and
Landlord shall have, in addition to any other right or remedy, the same rights
and remedies in the event of nonpayment thereof by Tenant as in the case of
default by Tenant in the payment of Fixed Rent.
Section
7.
If this
Lease shall terminate by reason of the occurrence of any default of Tenant
or
any contingency mentioned in this Article, Landlord shall at its option and
election be entitled, notwithstanding any other provision of this Lease, or
any
present or future law, to recover from Tenant or Tenant's estate (in lieu of
all
claims against Tenant relating to unpaid Fixed Rent or additional rent), as
damages for loss of the bargain and not as a penalty, a lump sum which at the
time of such termination of this Lease equals the then present worth of the
Fixed Rent and all other charges payable by Tenant hereunder that were unpaid
or
would have accrued for the balance of the term, less the fair and reasonable
rental value of the Premises for the balance of such term, such lump sum being
discounted to the date of termination at the rate of six (6%) percent per annum,
unless any statute or rule of law governing the proceeding in which such damages
are to be proved shall limit the amount of such claim capable of being so
proved, in which case Landlord shall be entitled to prove as and for liquidated
damages by reason of such breach and termination of this Lease, the maximum
amount which may be allowed by or under any such statute or rule of law. If
the
Premises or any part thereof shall be re-let by the Landlord for a period
including the unexpired term of this Lease or any part thereof, before the
presentation of proof of such liquidated damages to any court, commission,
or
tribunal, the amount of rent reserved on such re-letting shall be deemed to
be
the fair and reasonable rental value for the part or the whole of the Premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice Landlord's right to prove and obtain as liquidated damages
arising out of such breach or termination the maximum amount to be allowed
by or
under any such statute or rule of law which may govern the proceedings in which
such damages are to be proved whether or not such amount be greater, equal
to,
or less than the amount of the excess of the Fixed Rent over the rental value
referred to above. Notwithstanding anything to the contrary contained herein,
the remedy set forth in this Article 16, Section 7 shall only be available
to
Landlord if Landlord obtains a judgment from a court of competent jurisdiction
entitling Landlord to collect rent on a monthly basis thereafter, and Tenant
fails to make any such monthly payment in a timely manner.
20
Section
8.
No
receipt of payment by Landlord from Tenant, after the termination of this Lease,
as herein provided, shall reinstate, continue or extend the term or operate
as a
waiver of the right of Landlord to recover possession of the Premises, it being
agreed that, upon termination, any and all payments collected shall be on
account of Tenant's obligations hereunder.
Section
9.
Tenant
hereby expressly waives the service of notice of intention to re-enter as
provided for in any statute, or the necessity to institute legal proceedings
to
that end, and also waives any and all right or redemption in case Tenant shall
be dispossessed from the Premises or this Lease shall be terminated. The terms
"enter", "re-enter", "entry", or "re-entry", as used in this Lease are not
restricted to their technical legal meaning.
Section
10.
Tenant
agrees to pay, as additional rent, all reasonable attorneys' fees and other
actual and out-of-pocket expenses reasonably incurred by Landlord in the
enforcement of any of the obligations or agreements of Tenant under this Lease.
A R T I C L E 17.
SERVICES
FURNISHED BY LANDLORD
Section
1.
As long
as Tenant is not in default under any provision of this Lease, Landlord shall
furnish the following services to Tenant during Normal Business Hours (as
hereinafter defined):
(a) Passenger
elevator service;
(b) Heat,
ventilation and air conditioning, to be provided by systems designed to produce
heat and air conditioning in accordance with the performance standards set
forth
on Exhibit E annexed hereto and made a part hereof, (Tenant agrees to keep
peripheral windows closed and at all times to cooperate with Landlord and
observe all regulations which Landlord may reasonably prescribe for the proper
functioning and protection of the heating, ventilation and air conditioning
system). For and during that portion of each lease year between October 15
and
May 15, Landlord shall provide heat to the Premises as climatic conditions
shall
require, and for and during the portion of each lease year between May 16 and
October 14, Landlord shall provide air conditioning to the Premises as climatic
conditions shall require. Notwithstanding anything contained in this Lease
to
the contrary, Landlord shall not be obligated to provide air conditioning or
any
climate control system(s) of any type to any area(s) within the Premises used
as
and for "computer room(s)" or the like;
(c) Water
for
ordinary drinking and lavatory purposes, but if Tenant uses water for any other
purposes or in unusual quantities, Landlord may install a water meter at
Tenant's expense and Tenant shall pay for water consumed, as shown by said
meter
as additional rent as bills therefor are rendered;
(d) Cleaning
services with respect to the office area of the Premises which cleaning services
shall be as described and set forth on Exhibit F annexed hereto and made a
part
hereof, on days of Normal Business Hours. Tenant shall pay to Landlord the
cost
of removal of any of Tenant's excess rubbish. Landlord shall not be required
to
clean or exterminate any areas of the Premises which are used for the
preparation or dispensing of food or beverages or for storage, shipping or
similar purposes.
(e) Passenger
van service to be operated between the hours of 8:00 AM and 6:00 PM, Monday
through Friday for purposes of transporting Tenant’s employees between the
Building and the following locations within the City of Newark: the Newark
business district, Penn Station, Broad Street Station, City Hall, the New Jersey
Performing Arts Center and the Newark Bears’ Stadium. The use of the passenger
van service by Tenant shall be free of charge except that the cost to operate
such van service shall be included in Operating Costs (as hereinafter defined).
The use of the passenger van service shall be shared with the other tenants
in
the Building on a first come, first served basis. Landlord shall have the right
to designate a schedule of operation during the hours between 8:00 AM and 11:59
AM. Landlord shall have no liability to Tenant in the event of any failure
in
the operation of the passenger van service.
21
Section
2.
For the
purposes of this Lease, "Normal Business Hours" shall mean the period between
8
A.M. and 10 P.M. seven days per week, excluding legal holidays and Building
holidays and other days which may be designated holidays in labor contracts
with
trades providing services to the Premises or as may be designated as legal
holidays in the State of New Jersey. Current Building holidays are set forth
on
Exhibit G. Notwithstanding the foregoing, Tenant shall have access to the
Premises twenty four (24) hours a day, three hundred sixty five (365) days
a
year. Except as herein otherwise provided, Landlord shall in no event be
required to supply central heating or air conditioning other than during Normal
Business Hours except that supplemental
heating, ventilation and air conditioning units shall be installed in the
Premises by Landlord as part of the Work. Tenant shall pay for the use of its
supplemental heating, ventilation and air conditioning units based upon a
separate meter. If such separate meter is damaged or becomes inoperative, Tenant
shall pay for the use of its supplemental heating, ventilation and
air-conditioning units based upon a separate submeter or other energy measuring
system utilized by Landlord at the Building until the damage is repaired or
the
meter becomes operational. All amounts due from Tenant pursuant to this Article
17, Section 2 shall be paid either to Landlord within ten (10) days of being
billed therefor or directly to the supplier of the utility, as
applicable.
Section
3.
Landlord
shall not be liable for full or partial stoppage or interruption of the above
services or utilities caused by any factors beyond Landlord's reasonable control
and Landlord shall not be liable for consequential damages in any event. No
such
stoppage shall operate to constitute a constructive eviction of Tenant.
Notwithstanding the foregoing, in
the
event the stoppage or interruption of the above services or utilities is solely
caused by the gross negligence or wilful misconduct of Landlord and such
services are not restored within seven business (7) days, and as a result
thereof Tenant cannot reasonably use the Premises, Fixed Rent shall xxxxx on
the
eighth (8th) business day and continue abated until such service is
restored.
A R T I C L E 18.
ADDITIONAL
RENT
Section
1.
It is
expressly agreed that Tenant shall pay, in addition to the Fixed Rent, and
as
additional rent hereunder, in each calendar year which occurs wholly or
partially during the term hereof, its Proportionate Share, of all "Operating
Costs" and "taxes" (as said terms are hereinafter defined) of the Building
and
the Lot which shall exceed those applicable to the "Base Year". For the purposes
of this Lease, the term "Base Year" shall mean the calendar year 2007.
Section
2.
For the
purposes of this Article 18, "Operating Costs" shall mean the following expenses
paid or incurred by Landlord in connection with the Building and the Lot (the
Lot being defined as Xxx 00, Xxxxx 00, on the Tax Map of Newark, New Jersey):
A. Wages,
salaries, fees and other compensation and payments and payroll taxes and
contributions to any social security, unemployment insurance, welfare, pension
or similar fund and payments for other fringe benefits required by law or by
union agreement (or, if the employees of any of them are non-union, then
payments for benefits comparable to those generally required by union agreement
in first class office buildings in the Essex County, New Jersey area which
are
unionized) made to or on behalf of all employees of Landlord performing services
rendered in connection with the operation and maintenance of the Building and
the Lot, including, without limitation, elevator operators, elevator starters,
window cleaners, porters, janitors, maids, miscellaneous handymen, watchmen,
persons engaged in patrolling and protecting the Building and the Lot,
carpenters, engineers, firemen, mechanics, electricians, plumbers, persons
engaged in the operation and maintenance of the Building and “Real Property” (as
hereinafter defined in Section 3 of this Article 18), Building superintendent
and assistants, Building manager, and clerical and administrative personnel.
22
B. The
uniforms of all employees, and the cleaning, pressing and repair thereof.
C. Cleaning
costs for the Building and Lot, including the windows and sidewalks, all snow
and rubbish removal (including separate contracts therefor) and the costs of
all
labor, supplies, equipment and materials incidental thereto.
D. Premiums
and other charges incurred by Landlord with respect to all insurance relating
to
the Building and the Lot and the operation and maintenance thereof, including,
without limitation: fire and extended coverage insurance, including windstorm,
flood, hail, explosion, riot, rioting attending a strike, civil commotion,
aircraft, vehicle and smoke insurance; public liability; elevator; workmen's
compensation; boiler and machinery; rent; use and occupancy; health, accident
and group life insurance of all employees; and casualty rent insurance.
E. The
cost
of electricity, heat, water and sewer and any and all other utility services
used in connection with the operation and maintenance of the Building and the
Lot (excluding electricity and other utility services, if any, which are paid
directly by tenants). For the purpose of this Section, "cost of electricity"
shall include the cost of electricity for common areas attributable to Building
operation [i.e. mechanical equipment operation, common area electricity usage,
exterior lighting and, in general, all other electric utility usage mutually
enjoyed by all tenants (based upon the electricity rate to be adjusted for
summer and winter as applicable, and inclusive of demand charge, energy charge
and energy adjustment charge in effect as of the Commencement Date)] reduced
by
amounts due from tenants for special electrical usage in conjunction with
elapsed time recorded usage for overtime operation of the Building mechanical
systems actually paid to Landlord pursuant to Article 17 hereof, as said Article
pertains to electrical usage only.
F. Costs
incurred for operation, service, maintenance, inspection, repair and alteration
of the Building, the Lot, and the heating, air-conditioning, ventilating,
plumbing, electrical and elevator systems of the Building (including any
separate contract therefor) and the costs of labor, materials, supplies and
equipment used in connection with all of the aforesaid items; provided, however,
Operating Costs shall not include any cost incurred by Landlord in expanding
the
Building.
G. Sales
and
excise taxes and the like upon any of the expenses enumerated herein.
H. Management
fees of the managing agent for the Building, if any. If there shall be no
managing agent, or if the managing agent shall be a company affiliated with
Landlord, the management fees that would customarily be charged for the
management of the Building by an independent, first-class agent in the Essex
County, New Jersey area.
I. The
cost
of replacements for tools and equipment used in the operation and maintenance
of
the Building and the Lot.
J. The
cost
of repainting or otherwise redecorating any part of the Building other than
premises demised to tenants in the Building.
K. Decoration
for the lobby and other public portions of the Building.
L. The
cost
of telephone service, postage, office supplies, maintenance and repair of office
equipment and similar costs related to operation of the Building
Superintendent's office.
M. The
cost
of licenses, permits and similar fees and charges related to operation, repair
and maintenance of the Building.
23
N. Auditing
fees necessarily incurred in connection with the maintenance and operation
of
the Building, and reasonable accounting fees incurred in connection with the
preparation and certification of a real estate tax escalation and the Operating
Cost escalation statements pursuant to this Article 18.
O. All
costs
incurred by Landlord to retrofit any portion or all of the Building to comply
with a change in existing legislation, whether Federal, State or Municipal;
repairs, replacements and improvements which are appropriate for the continued
operation of the Building as a first-class building in the Essex County, New
Jersey area.
P. All
expenses associated with the installation of any energy or cost saving devices.
Q. The
pro
rata share of all costs and expenses relating to the Real Property (as
hereinafter defined) and its maintenance, operation and repair of any common
facilities including, but not limited to, snow removal, landscaping and similar
services.
R. Any
and
all reasonable expenditures of Landlord in connection with the operation, repair
and/or maintenance of the Parking Lots.
S. Any
and
all other expenditures of Landlord in connection with the operation, repair
or
maintenance of the Lot or the Building which are properly expensed in accordance
with generally accepted accounting principles; provided, however, Operating
Costs shall not include any cost incurred by Landlord in expanding the
Building.
If
Landlord shall purchase any item of capital equipment or make any capital
expenditure as described in subsections F, O and P above, or otherwise, then
the
costs for the same shall be amortized on a straight-line basis over a useful
life period (but not more than ten(10) years), and Tenant shall reimburse
Landlord for the portion of such costs allocable to the applicable amortization
period which falls within the term hereof. At Landlord’s option, such
reimbursement shall be paid by Tenant either (i) in a lump sum without interest
within thirty (30) days of its receipt of Landlord’s invoice therefor, or (ii)
in monthly installments, as additional rent, at the same time and in the same
manner as Fixed Rent. If Landlord shall lease such item of capital equipment,
then the rentals or other operating costs paid pursuant to such leasing shall
be
included in Operating Cost for each year in which they are incurred. In the
event the Building is less than 95% occupied during the Base Year or any
subsequent year, Operating Costs for the Base Year and lease year in question
shall be appropriately adjusted so that Operating Costs shall reflect such
Operating Costs as would have been incurred if the Building were 95% occupied
during said year. In addition to the foregoing, Operating Costs for the Base
Year shall also be adjusted to exclude any extraordinary expense of a one-time
nature incurred during the Base Year.
Notwithstanding
anything to the contrary contained herein, in the event that any tenant of
the
Building is separately billed for any item of Operating Costs, the amount billed
to such tenant shall not be included in the term Operating Costs and the
rentable floor area of such tenant’s leased premises shall be excluded for the
purposes of determining Tenant’s Proportionate Share with respect
thereto.
Section
3.
(a)
Tenant shall also pay, as additional rent, its Proportionate Share of real
estate taxes, assessments, sewer rents, rates and charges, state and local
taxes, transit taxes or any other governmental charge, general, special,
ordinary or extraordinary (hereinafter collectively called "taxes") (but not
including income or franchise taxes or any other taxes imposed upon or measured
by the Landlord's income or profits, except if in substitution for real estate
taxes as hereinafter provided, personal property taxes, sales tax and excise
taxes) which may now or hereafter be levied or assessed against the Lot and
upon
the Building (collectively called the "Real Property") attributable to any
tax
year which is in excess of the amount of taxes on the Real Property attributable
to the Base Year. The taxes for the Base Year shall be the product of the tax
rate in effect as of the Base Year times the assessment for the calendar year
in
which the Building shall be fully assessed as a completed building. Landlord
represents that the Building is currently fully assessed as a completed
building. The Landlord shall take the benefit of the provisions of any statute
or ordinance permitting any assessment to be paid over a period of time, and
Tenant shall be obligated to pay its Proportionate Share, of the installments
of
any such assessment applicable to the term of this Lease or any renewal hereof.
Any amount due to the Landlord under the provisions hereof shall be paid within
ten (10) days after the Landlord shall have submitted a statement to Tenant
showing in detail the computation of the amount due to Landlord. The amount
of
taxes for the Base Year, against which Tenant's liability for additional rent
in
subsequent years is determined, shall be the amount thereof finally determined
to be legally payable by legal proceedings or otherwise. In the event the amount
of taxes for the Base Year has not been finally determined by legal proceedings
or otherwise at the time of payment of taxes for any subsequent year, the actual
amount of taxes paid by Landlord for the Base Year shall be used in the
statement provided by Landlord as the basis for Tenant's liability hereunder
with respect to such subsequent year. Upon final determination of the amount
of
taxes for the Base Year by legal proceedings or otherwise, Landlord shall
deliver to Tenant a statement setting forth the amount of taxes for the Base
Year as finally determined and showing in reasonable detail the computation
of
any adjustment due to Landlord by reason thereof. Any payment due to Landlord
by
reason of such adjustment shall be paid as hereinbefore provided.
24
(b) If
Landlord shall receive any tax refund or rebate in respect of any tax year
during the term hereof following the Base Year, Landlord may deduct from such
tax refund any reasonable expense actually incurred in obtaining such tax
refund, and out of the remaining balance of such tax refund, Landlord shall
(i)
credit against Tenant's obligations under this Section, Tenant's Proportionate
Share thereof, or (ii) if the term has expired, pay to Tenant, Tenant’s
Proportionate Share thereof, provided that Tenant shall have paid the Landlord
all taxes due under this Lease for the tax year to which such refund or rebate
is allocable and for the tax year in which such refund or rebate shall have
been
received. This covenant shall survive the expiration or termination of this
Lease.
(c) If
the
tax year for real estate taxes shall be changed, then an appropriate adjustment
shall be made in the computation of the additional tax due to Landlord or any
amount due to Tenant. The computation shall be made in accordance with sound
accounting principles.
(d) If
the
last year of the term of this Lease ends on any day other than the last day
of a
tax year, any payment due to Landlord or to Tenant by reason of any increase
or
decrease in taxes shall be pro-rated and Tenant shall pay any amount due to
Landlord within ten (10) days after being billed therefor, and Landlord shall
pay any amount due to Tenant within ten (10) days of Landlord’s calculation
thereof. This covenant shall survive the expiration or termination of this
Lease.
(e) If
at any
time during the term of this Lease the method or scope of taxation prevailing
at
the commencement of the Lease term shall be altered, modified or enlarged so
as
to cause the method of taxation to be changed, in whole or in part, so that
in
substitution for, or as a supplement to, the real estate taxes now assessed
there is, a capital levy or other imposition based on the value of the Building
or Lot or the rents received therefrom, or some other form of assessment, tax
or
imposition based in whole or in part on some other valuation of the Real
Property or any portion thereof, as if the Real Property were the only property
owned by the Landlord, then and in such event, such substituted or supplemental
tax, assessment or imposition shall be deemed included in "taxes" for purposes
of this Article 18.
(f) Landlord
hereby represents to Tenant that all taxes due to be paid on the date hereof
have been paid and that Landlord’s tax appeal for tax year 2006 is
pending.
Section
4.
Commencing on January 1, 2008 and continuing for and during each calendar year
of the term of this Lease Agreement, Tenant agrees to pay to Landlord, at
Landlord's option and at the same time as each monthly payment of Fixed Rent
and
in addition thereto, an amount equal to one-twelfth (1/12) of Tenant's
Proportionate Share of the increase in the Operating Costs and taxes applicable
to the current calendar year based upon Landlord's reasonable estimate of the
amount by which such calendar year shall be in excess of the Base Year. Said
sum
shall be held by Landlord and shall be employed in connection with the payment
of such Operating Costs and taxes as same become due and payable. Tenant further
agrees to make such further payments in such amounts and at such times as
Landlord may reasonably require to account for any deficiency in the reserve
funds held by Landlord so as to enable Landlord to satisfy the increase in
the
Operating Costs and taxes for the particular calendar year in full, which sums
Tenant shall furnish Landlord as additional rent hereunder. Notwithstanding
the
foregoing provisions, if at any time Landlord incurs such costs at a higher
rate
Landlord shall have the right to xxxx Tenant for its Proportionate Share of
said
excess and to continue to collect same in advance on a monthly basis as above
provided. Within five (5) months after the end of each calendar year during
the
term hereof, Landlord shall deliver to Tenant a reasonably detailed statement
(the "End of Year Statement") setting forth the actual Operating Costs and
taxes
for such calendar year. If Tenant has paid less than the actual amount due,
Tenant shall pay the difference to Landlord within ten (10) days after
Landlord's demand therefor. Any amount paid by Tenant which exceeds the amount
due shall be credited against the next succeeding estimated payments due
hereunder, unless the term has then expired, in which event the excess amount
shall be refunded to Tenant within ten (10) days of Landlord’s calculation
thereof.
25
Section
5.
Without
limiting any of Tenant's obligations pursuant to this Article 18, Tenant shall
have the right, at its cost and expense, to audit the Operating Costs for the
immediately preceding calendar year only, in order to verify the accuracy of
any
expense which was charged to Tenant as additional rent hereunder provided
that:
(a)
Tenant
shall notify Landlord of its election to audit the Operating Costs within thirty
(30) days following Tenant’s receipt of the End of Year Statement;
(b) such
audit shall be conducted only during the hours of 10 A.M. to 4 P.M. on Monday
through Friday on the 10th through the 25th day of the month;
(c) such
audit shall be conducted at the office where Landlord maintains Operating Costs
expense records and only after Tenant gives Landlord at least thirty (30) days'
prior written notice;
(d) Tenant
shall deliver to Landlord a copy of the results of such audit within ninety
(90)
days following Tenant's receipt of the End of Year Statement;
(e) Intentionally
deleted;
(f)
such
audit shall only be conducted by a certified public accountant not compensated
on a contingent fee basis;
(g)
no
audit
shall be conducted at any time that Tenant is in default of any of the terms
of
this Lease beyond any applicable notice and cure periods;
(h) no
subtenant shall have any right to conduct an audit;
(i) no
assignee shall conduct an audit for any period during which such assignee was
not in possession of the Premises; and
(j) Tenant
shall keep the results of such audit strictly confidential and shall not
disclose the same to any other tenant of the Building, unless the disclosure
is
required by a court ordered subpoena.
In
the
event that Tenant's audit alleges that an error was made by Landlord, Landlord
shall have ninety (90) days following receipt of the results of such audit
to
obtain an audit from an accountant of Landlord's choice, at Landlord's cost
and
expense, or Landlord shall be deemed to have accepted the results of Tenant's
audit. In the event that Landlord's and Tenant's accountants shall be unable
to
reconcile the results, both accountants shall mutually agree upon a third
accountant whose determination shall be conclusive. The cost of any such third
accountant shall be shared equally between Landlord and Tenant. If it is
determined that Tenant has paid less than the actual amount due, Tenant shall
pay the difference to Landlord within thirty (30) days after the date of such
determination. If it is determined that Tenant has paid any amount in excess
of
the amount due, such excess amount shall be refunded to Tenant within thirty
(30)days after the date of such determination.
26
A R T I C L E 19.
ELECTRIC
CHARGES
Section
1.
Tenant
shall pay Landlord for its use of electric energy in the Premises whether for
the electric lighting fixtures provided to Tenant by Landlord, Tenant's electric
equipment, such as computers, calculators and other small office machines,
or
otherwise. Tenant's total electrical demand shall not exceed six (6)
volt-amperes connected load per square foot (nor shall any single electric
office machine or any fixture requiring electric energy in excess of 1800
volt-amperes including but not limited to large copying machines and computers,
be installed or operated in the Premises) without Landlord's prior written
consent, which consent Landlord covenants shall not be unreasonably withheld,
conditioned or delayed; provided always, however, that the electrical system
installed in the Premises shall have sufficient capacity to accommodate same
and
further provided that any additional costs attributable to such high energy
use,
including any additional air conditioners required by such use, shall be paid
for by Tenant). The Tenant shall not install, maintain or operate in the
Premises electric lighting fixtures or electric equipment whose total per square
foot electrical demand exceeds the aforementioned limitation of six (6)
volt-amperes connected load per square foot without making a written request
for
Landlord's reasonable prior consent thereto. Tenant’s use of electricity in the
Premises shall be separately metered and Tenant shall apply for electric service
directly from the utility company servicing the Building and arrange for the
direct billing of utility consumption to Tenant. If Landlord shall install
a
submeter to measure electric energy consumption in the Premises (which Landlord
shall have the right to install), Tenant shall pay for electric energy based
on
such submeter within ten (10) days after monthly (or other) billing by Landlord.
If gas service is required, Tenant shall make all arrangements with the utility
company for direct service and shall install all lines and meters required
therefor. Landlord shall have the right to approve the proposed installation
of
such service.
Section
2.
In the
event that during the term of the Lease there shall be an increase in the rate
schedule of the public utility for the supply of electric energy to the Building
not directly billed to Tenant by the utility company, Tenant shall pay the
resulting increase for electric energy consumed in the Premises.
Section
3.
In the
event that any tax is imposed upon Landlord with respect to electric energy
furnished to the Building by any federal, state, county or municipal authority
and not directly billed to Tenant, Tenant shall pay to Landlord, on demand,
Tenant's Proportionate Share of such taxes so assessed against the Building.
Section
4.
Except
as otherwise specifically provided in this Lease, the Landlord shall have no
responsibility for failure to supply the electric energy when prevented from
doing so by strikes, repairs, alterations or improvements, or by reason of
the
failure of the public utility to furnish the electric energy, or for any cause
beyond the Landlord's reasonable control, or by order or regulation of any
federal, state, county or municipal authority. Except as otherwise specifically
provided in this Lease, the Landlord's obligation to furnish electricity shall
not be breached nor shall there be any abatement in rent or any liability on
the
part of Landlord to Tenant for failure to furnish electricity for the reasons
herein set forth. In no event shall Landlord be obligated to increase the
existing electrical capacity of any portion of the Building's system, nor to
provide any additional wiring or capacity to meet the Tenant's additional
requirements.
Section
5.
Landlord shall not be liable in any way to Tenant for any loss, damage or
expense which the Tenant may sustain or incur if either the quantity or
character of electric service furnished to the Premises is changed or is no
longer available or suitable for Tenant's requirements.
Section
6.
The
failure of Landlord to furnish any service hereunder shall not be construed
as a
constructive eviction of Tenant and shall not excuse Tenant from failing to
perform any of its obligations hereunder and shall not give Tenant any claim
against Landlord for damages for failure to furnish such service.
27
Section
7.
The
Tenant covenants and agrees that at all times, its use of electric energy shall
never exceed the capacity of the existing feeders to the Building or the risers
of wiring installation. Any riser or risers to supply the Tenant's electrical
requirements upon written request of the Tenant shall be installed by the
Landlord at the sole cost and expense of the Tenant, if, in the Landlord's
sole
judgment, the same are necessary and will not cause or create a dangerous or
hazardous condition or entail excess or unreasonable alterations, repairs or
expense or unreasonably interfere with or disrupt other tenants or occupants.
In
addition to the installation of such riser or risers, the Landlord will also
at
the sole cost and expense of Tenant, install all other equipment proper and
necessary in connection therewith subject to the aforesaid terms and conditions.
Section
8.
Tenant
shall be responsible, at its cost and expense, for replacing all light bulbs,
fluorescent lamps, non-building standard lamps and bulbs and all ballasts
employed by Tenant in the Premises after the Commencement Date, provided however
that Landlord shall at its cost and expense install light bulbs in all building
standard lighting fixtures in the Premises on the Commencement
Date.
Section
9.
If at
any time in the future during the term of this Lease the separate meter
measuring electric energy consumed in the Premises is damaged or becomes
inoperative, Tenant shall pay Landlord for such electric energy the sum of
$62,000 per annum (i.e., $1.25 per square foot of gross rentable area of the
Premises) in equal monthly installments of $5,166.67 each on the first day
of
each month during the term of this Lease commencing on the Commencement Date.
Such sum of $62,000 shall be subject to increase in accordance with increases
in
electric charges payable by Landlord. In addition, either Landlord or Tenant
may, at any time, at its sole cost and expense, engage a electrical consultant,
reasonably approved by Landlord, to make a survey of the electric energy demand
properly qualified in the Premises and to determine the average monthly electric
consumption in the Premises. The findings of the said consultant as to the
average monthly electric consumption of the Tenant shall be deemed conclusive
and binding upon the parties. From and after said consultant has submitted
its
report, Tenant shall pay to Landlord, as additional rent, on the first day
of
each month during the balance of the term hereof (or until another such survey
is performed or a separate electric meter is installed for the Premises), in
advance, the amount set forth in the survey as the monthly electric consumption.
The Landlord is hereby granted the right from time to time, to inspect the
electric lighting fixtures and electric equipment in the Premises.
A R T I C L E 20.
NOTICES
All
notices, demands and requests which may be or are required to be given by either
party to the other shall be in writing and shall be served by personal service
or by overnight courier which obtains delivery receipts (e.g. Federal Express).
All notices, demands and requests by Landlord to Tenant shall be sent to Tenant
at the Premises or at such other place as Tenant may from time to time designate
in a written notice to Landlord. Notices shall be deemed given and effective
on
the earlier of the date of delivery and the date of attempted delivery. A notice
from the attorney for Landlord or Tenant shall be effective as if given by
the
party represented by such attorney. All notices, demands, and requests by Tenant
to the Landlord shall be sent to Landlord at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxx
Xxxxxx 00000, with a copy to Lasser Xxxxxxx, L.L.C., 00 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, attention: Xxxxxxx X. Xxxxxxx, Esq., or at such
other place or to such other parties as Landlord may from time to time designate
in a written notice to Tenant.
A R T I C L E 21.
LESSER
AMOUNT OF RENT
No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
Fixed Rent and additional rent herein stipulated shall be deemed to be other
than on account of the earliest Fixed Rent or additional rent, nor shall any
endorsement or statement on any check or any letter accompanying any check
or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease or at law
provided.
28
A R T I C L E 22.
QUIET
ENJOYMENT
Section
1.
Landlord
covenants and agrees that it has and will have at the commencement of the term
of this Lease full right and power to execute and perform this Lease and to
grant the estate demised herein. Tenant's rights hereunder are and shall be
subject to presently existing and future easements for storm and sanitary
sewers, drainage ditches, public utilities, mortgages, liens of real estate
taxes and all other matters of record subject to the provisions of Article
29
hereof. Tenant has accepted its leasehold estate subject to the present and
future liens of the foregoing items.
Section
2.
Landlord
covenants and warrants that subject to the provisions of Section 1, supra,
and to
the items therein contemplated and referred to, Tenant, upon paying the Fixed
Rent, additional rent and all charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part
to be
kept, shall lawfully and quietly hold, occupy and enjoy the Premises during
the
term of this Lease, without hindrance or molestation of Landlord or of any
person or persons claiming under Landlord, and Landlord covenants and agrees
that it will defend Tenant in such peaceful and quiet use and possession of
the
Premises against the claims of all such persons.
A R T I C L E 23.
ARBITRATION
In
any
case where this Lease provides for the settlement of a dispute by arbitration,
the same shall be settled in Newark, New Jersey by arbitration under the
auspices of the American Arbitration Association. The rules of the American
Arbitration Association from time to time in effect shall apply (to the extent
appropriate). Any award shall be enforceable by proper proceedings in any court
having jurisdiction. The arbitrators, regardless how appointed, may determine
how the expenses of the arbitration, including reasonable attorneys' fees,
and
disbursements of the successful party, shall be borne as between Landlord and
Tenant.
A R T I C L E 24.
LIMITATION
OF LANDLORD'S LIABILITY
Section
1.
The
term "Landlord" as used in this Lease, so far as covenants and/or obligations
on
the part of Landlord are concerned, shall be limited to mean and include only
the owner or owners at the time in question of the fee of the Premises and
in
the event of any transfer or transfers of the title to such fee Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then
grantor) shall be automatically freed and relieved from and after the date
of
such conveyance or transfer of all liability for the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed, provided that any funds in the hands of such
Landlord or the then grantor at the time of such transfer, in which Tenant
has
an interest, shall be turned over to the grantee and any amount then due and
payable to Tenant by Landlord or the then grantor under any provisions of this
Lease, shall be paid to Tenant, it being intended hereby that the covenants
and
obligations contained in this Lease on the part of Landlord shall be binding
on
Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership.
Section
2.
Anything contained in this Lease to the contrary notwithstanding, Tenant agrees
that it shall look solely to the estate and property of Landlord in the Premises
and the Building for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord or requiring the performance by
Landlord of any covenant or obligation of this Lease in the event of any default
or breach by Landlord with respect to any of the terms, covenants or conditions
of this Lease to be observed and/or performed by Landlord (subject always,
however, to the prior rights of any mortgagee of the Premises and the Building),
and no other assets of Landlord whatsoever shall be subject to levy, execution
or other procedures for the satisfaction of Tenant's remedies.
29
Section
3.
Without
in any manner limiting the generality of the foregoing, it is specifically
understood and agreed by and between the parties hereto that no officer,
director, stockholder or agent of any corporate entity landlord or tenant shall
have personal or individual liability pursuant hereto nor shall any partner
of a
partnership landlord or tenant have any personal or individual liability
pursuant hereto nor shall the individual proprietor of any individual
proprietorship landlord or tenant have any personal or individual liability
pursuant hereto.
A R T I C L E 25.
ESTOPPEL
NOTICES
Landlord
and Tenant agree from time to time (but not more than twice in any calendar
year) and upon not less than ten (10) days' prior written request by Landlord
or
Tenant to execute, acknowledge and deliver to the other party a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications that the same is in full force and effect
as modified and stating the modifications), the Commencement Date of the term
hereof and the dates to which the Fixed Rent, additional rent and other charges
have been paid in advance, if any, it being intended that any such statement
delivered pursuant to this Article may be relied upon by any third party,
including but not limited to any prospective purchaser of Landlord's interests
herein, the fee, or by any mortgagee or assignee of any mortgage upon Landlord's
interest in the Premises and/or the Building.
A R T I C L E 26.
REMEDIES
The
specified remedies to which Landlord and Tenant may resort under the terms
of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord or Tenant may be lawfully
entitled in case of any breach or threatened breach by Landlord or Tenant of
any
provisions of this Lease. The failure of Landlord or Tenant to insist in any
one
or more cases upon the strict performance of any of the covenants of the Lease
or to exercise any option herein contained shall not be construed as a waiver
or
a relinquishment for the future of such covenant or option. A receipt by
Landlord of rent with knowledge of the breach of any covenant hereof shall
not
be deemed a waiver of such breach, and no waiver of such breach, and no waiver
by Landlord or Tenant of any provision of this Lease shall be deemed to have
been made unless expressed in writing and signed by Landlord or Tenant (as
the
case may be). In addition to the other remedies in this Lease provided, Landlord
or Tenant shall be entitled to the restraint by injunction of the violation
or
attempted or threatened violation, of any of the covenants, or provisions of
this Lease.
A R T I C L E 27.
BROKERAGE
COMMISSION
Landlord
warrants and represents that it has not dealt or negotiated with any real estate
broker or salesman in connection with this Lease other than Assurance Realty
Group, LLC and Newmark Xxxxxx Xxxxx. Tenant warrants and represents that it
has
not dealt or negotiated with any real estate broker or salesman in connection
with this Lease. Each party shall and hereby does indemnify and hold the other
party harmless from and against any real estate commissions, fees, charges
or
the like, or claims therefor, including any and all costs incurred in connection
therewith, arising out of the within transaction claimed by or payable to any
party with whom the indemnifying party has dealt.
30
A R T I C L E 28.
UNAVOIDABLE
DELAYS
In
the
event that either Landlord or Tenant shall be delayed or prevented from
performing any of its obligations pursuant to the provisions of this Lease
due
to governmental action, or lack thereof, or due to shortages of or
unavailability of materials and/or supplies, labor disputes, strikes, slow
downs, job actions, picketing, secondary boycotts, fire or other casualty,
delays in transportation, acts of God, failure to comply or inability to comply
with any orders or request of any governmental agencies or authorities, acts
of
declared or undeclared war, public disorder, riot or civil commotion, or due
to
any other cause beyond the reasonable control of Landlord or Tenant, as the
case
may be (collectively "Force Majeure"), such party shall in any or all such
events be excused from its obligation to perform and comply with such provisions
of this Lease for a period of time commensurate with any delay so caused,
without any liability to the other therefor whatsoever, and all time periods
provided for herein for performance of any such obligations shall be extended
for a period of time commensurate with any such delay. Notwithstanding the
foregoing, the provisions of this Article shall not apply to, and shall permit
any delay in (i) the payment of any installment of Fixed Rent or additional
rent
and (ii) the exercise by Tenant of any option contained in this
Lease.
A R T I C L E 29.
SUBORDINATION
Section
1.
Tenant
covenants that its rights under this Lease are now and will be subordinate
to
the operation and effect of any mortgage(s) or ground lease(s) now existing
or
hereafter placed upon the Premises, the Building and/or the Lot or any part
or
portion thereof without any further written document from Tenant; provided,
however, that with respect to any such mortgage(s) and/or ground lease(s),
such
subordination shall be conditioned upon Landlord obtaining from the holder
of
any such mortgage, or the lessor under any such ground lease, as the case may
be, a non-disturbance agreement in a commercially reasonable form (the
“Non-disturbance Agreement”) stating that so long as Tenant is not in default
under this Lease beyond any applicable notice and cure periods, Tenant’s right
to possession of the Premises shall not be affected or disturbed by such holder
or lessor. Tenant agrees to execute any instrument reasonably required by
Landlord to effectuate the provisions hereof. In the event that any mortgagee
of
the Premises and/or the Building shall succeed to the interests of the Landlord
under the within Lease, it is understood and agreed that said mortgagee shall
not in any event be or become liable for any act or omission of any prior
landlord (including the Landlord); or be subject to any offsets or defenses
which Tenant might have against any prior landlord (including the Landlord);
or
be bound by any rent or additional rent which Tenant might have paid for more
than the current month to any prior landlord (including the Landlord); or be
bound by any amendment or modification of the within Lease made without its
consent; or be bound to return any security deposit under the within Lease
unless the same shall actually come into possession of said mortgagee. Within
sixty days from the full execution of this Lease, Landlord shall provide Tenant
with a Non-disturbance Agreement from the holder of any existing mortgage
encumbering the Premises, the Building and/or the Lot (the “Existing
Mortgagee”). In the event that such Non-disturbance Agreement is not so
delivered to Tenant within such sixty (60) day period, Tenant shall have the
right, as its sole and exclusive remedy, to terminate this Lease upon written
notice to Landlord given within five (5) days after the expiration of said
sixty
(60) day period (time being of the essence) unless Landlord shall have delivered
such non-disturbance agreement to Tenant prior thereto. In the event of such
termination, Landlord shall promptly return to Tenant any payment theretofore
made by Tenant, and neither party shall have any further rights or obligations
hereunder. In the event that Tenant shall not exercise its right to terminate
this Lease as aforesaid, Landlord shall no longer have an obligation to cause
the Existing Mortgagee to deliver an executed Non-disturbance Agreement to
Tenant.
31
Section
2.
Subject
to the provisions of Section 1 of this Article 29, Tenant agrees to comply
with
such reasonable conditions and requirements for modifications hereof made by
any
existing, future or prospective bona fide
institutional mortgagee of the Premises and/or the Building, which conditions
and requirements shall not adversely affect the basic business terms hereof
or
the parties’ rights and obligations hereunder, and Tenant further agrees to
execute such further documents and modifications of the terms hereof as may
be
reasonably requested by such institutional mortgage lender.
Section
3.
Intentionally deleted.
Section
4.
Tenant
further agrees that neither the cancellation nor the termination of any ground
or underlying lease, nor the foreclosure of any mortgage affecting the fee
title
of the Premises, the Building and/or the Lot, nor any foreclosure of a leasehold
mortgage, nor any proceedings brought by the holder of any such mortgage to
recover possession of the Premises or the Building shall, by operation of law
or
otherwise, result in the cancellation or termination of this Lease or the
obligations of Tenant hereunder, and Tenant covenants and agrees to attorn
to
any successor to Landlord's interest in this Lease and/or in the Premises and/or
the Building or to the holder of any such mortgage or ground or underlying
lease
or to the purchaser of the Premises and/or the Building (or Landlord's interests
therein) at any foreclosure sale, provided that in any such case this Lease
and
Tenant's interest shall not be disturbed and shall be recognized by any
successor to Landlord's interests hereunder or by any such mortgagee or
purchaser for the period(s) in which this Lease remains in good standing.
Section
5.
If any
act or omission of Landlord would give Tenant the right, immediately or after
lapse of a period of time, to cancel or terminate this Lease, or to claim a
partial or total eviction, Tenant shall not exercise such right (a) until it
has
given written notice of such act or omission to Landlord and each mortgagee
of
the Premises whose name and address shall previously have been furnished to
Tenant, and (b) until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such mortgagee of the Premises shall have become entitled under such
mortgage to remedy the same (which reasonable period shall in no event be less
than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such mortgagee
of the Premises shall with due diligence give Tenant notice of intention to,
and
commence and continue to, remedy such act or omission.
A R T I C L E 30.
SIGNS
Tenant
shall only be permitted to install signage at the Premises in accordance with
standards established by Landlord for the Building, at such designated locations
as Landlord shall direct and in accordance with all governmental laws, orders,
rules and regulations. Tenant shall not have the right to put any identifying
signs on the exterior of the Building or roof of the Building. Subject to the
foregoing Tenant shall, at Tenant's reasonable cost and expense, be identified
on any building directory sign maintained by Landlord for all the tenants of
the
Building, and may identify itself, at its cost and expense, by name only, on
the
entrance door of the Premises leading to the interior Common Areas and within
the elevator lobbies on the 16th
and
17th
floors
of the Building. Said name shall be of such shape, size and design as shall
be
approved by Landlord. Without limiting the foregoing, Tenant shall be solely
responsible, at its cost and expense, for obtaining any and all governmental
permits and approvals required for the installation of any and all signs
installed by Tenant. Landlord shall cooperate with Tenant in its application
for
such permits and approvals, provided that Landlord incurs no cost or expense
in
connection therewith. Tenant shall, at its cost and expense, remove all signs
at
the expiration or earlier termination of the Lease and Tenant shall, at its
cost
and expense, repair all damage caused by such removal. Landlord’s approval of
Tenant’s signage shall not be unreasonably withheld, conditioned or
delayed.
32
A R T I C L E 31.
NOTICES
OF DEFAULT
Tenant
agrees that any default notice served upon Landlord shall also be served upon
any mortgagee of the Premises and the Building, the name(s) of which Landlord
shall have furnished to Tenant theretofore. Tenant further agrees that
Landlord's mortgagee(s) ) shall have and be deemed to have the same period
of
time to cure any of Landlord's defaults pursuant to the provisions of this
Lease
as Landlord shall be granted pursuant to the provisions of this Lease. Landlord
hereby represents that as of the date hereof, there are no ground leases
affecting the Building.
A R T I C L E 32.
USE
The
Premises may be used only for general office purposes, and as and for recording
studios for “books on tape” and/or a call center, and for no other purpose
whatsoever. Without expanding any use to which the Premises may be put as
hereinbefore set forth, it is specifically understood and agreed that no part
of
the Premises shall, at any time, be used for the sale or preparation of food
or
beverages, except Tenant shall be allowed to provide vending machines, a
kitchenette and/or microwave, only for the use of its employees. No part of
the
Premises shall be used or employed for any purpose which shall emit or produce
unreasonably loud noises, vibrations, noxious fumes or odors or for any purpose
which shall constitute a nuisance, or which shall be, or shall cause Landlord,
the Premises or the Building to be violative of any governmental rule, law
or
regulation.
A R T I C L E 33.
LANDLORD'S
RIGHT TO MODIFY
Anything
contained in the within Lease to the contrary notwithstanding, it is
specifically understood and agreed by and between the parties hereto that
Landlord retains the sole and uncontrolled right and discretion to vary, modify
or alter the size of the Lot and/or the Building and/or the Common Areas, to
add
thereto or to subtract therefrom, or, having constructed the Building, to make
any modifications thereto, additions thereto, deletions therefrom or expansion
thereof as Landlord may in its sole discretion elect to do; provided always,
however, that no such variation, modification, or alteration shall operate
so as
to affect the Premises in such a way as would vary, modify or alter the size
thereof or as would materially and adversely affect Tenant's use and enjoyment
thereof or of the Common Areas associated therewith. No diminution of the size
of any portion of the Lot shall operate to reduce parking below legal minimum
requirements unless reasonably acceptable substitute parking in sufficient
amounts is then made available.
A R T I C L E 34.
LATE
CHARGES
In
the
event that any installment of Fixed Rent, additional rent, impositions or the
like shall be delinquent and overdue for more than five (5) days, a "late
charge" of four cents ($.04) for each dollar ($1.00) so delinquent and overdue
may be charged to Tenant by Landlord for the purpose of defraying Landlord's
expenses incident to handling such delinquent payment. This charge shall be
in
addition to, and not in lieu of, any other remedy which Landlord may have and
is
in addition to any reasonable fees and charges of any attorney which Landlord
may employ to enforce Landlord's remedies in connection with any default
hereunder beyond any applicable cure period, whether such remedy(ies) shall
be
authorized herein, or by law. Such "late charges", if not previously paid,
shall, at the option of Landlord, be paid at the same time as the next
succeeding monthly installment of Fixed Rent to be made under the Lease.
33
A R T I C L E 35.
LANDLORD'S
RULES AND REGULATIONS
The
rules
and regulations regarding the Building and the Lot affixed to this Lease, as
Exhibit C, as well as any other and further reasonable rules and regulations
which shall be made by Landlord, shall be observed by Tenant and by Tenant's
employees, agents and invitees. Landlord reserves the right to rescind any
presently existing rules applicable to the Building and the Lot and to make
such
other and further reasonable rules and regulations as, in its reasonable
judgment, may from time to time be desirable for the safety, care and
cleanliness of the Building and the Lot and for the preservation of good order
therein, which rules, when so made and reasonable notice thereof given to
Tenant, shall have the same force and effect as if originally made a part of
this Lease. Such other and further rules shall not, however, be inconsistent
with the proper and rightful enjoyment by Tenant of the Premises. Landlord
shall
not be responsible to Tenant for the non-observance or violation of the rules
and regulations by any other tenant or any third party, but Landlord agrees
to
uniformly enforce the rules and regulations.
A R T I C L E 36.
CONDITION
OF PREMISES
It
is
expressly understood and agreed by and between the parties hereto that except
as
specifically provided for herein to the contrary, the Premises are being leased
by Landlord to Tenant, and shall be delivered to Tenant, in their present
condition "as is" and Landlord shall not be obligated to perform any additional
work of any type or nature whatsoever in connection with said Premises in order
to prepare same for Tenant's use or occupancy .
A R T I C L E 37.
ENVIRONMENTAL
LAWS
Section
1.
(a) As
used in this Article 37, the term "Occupant" shall mean any person or entity
other than Tenant using and/or occupying all or any portion of the
Premises.
(b)
Notwithstanding any other provision of this Lease to the contrary, Tenant agrees
that it shall, at its sole cost and expense, fulfill, observe and comply with,
and shall take all necessary steps to cause any and all Occupants to fulfill,
observe and comply with, all of the terms and provisions of the Industrial
Site
Recovery Act, N.J.S.A 13:1K-6 et seq.,
("ISRA") the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11
et seq.,
(the
"Spill Act"), and all other federal, state and local environmental laws now
in
effect or hereinafter enacted, as any of the same may be amended from time
to
time, and all rules, regulations, ordinances, opinions, orders and directives
issued or promulgated pursuant thereto or in connection therewith.
(c) Within
ten (10) days after written request by Landlord, Tenant, shall deliver to
Landlord a duly executed and acknowledged affidavit of Tenant and of the chief
executive officers of such Occupants as Landlord may, from time to time,
require, certifying:
(i)
The
proper assigned code number (the “NAICS Code”) under the North American Industry
Classification System relating to Tenant and/or said Occupant's then current
use
of the demised premises (said NAICS Code is to be obtained by reference to
the
then current list of NAICS Codes prepared and published by the Federal Office
of
Management and Budget or the successor to such publication); and
(ii)
(A)
That Tenant's and/or said Occupant's then current use of the Premises does
not
involve the generation, manufacture, refining, transportation, treatment,
storage, handling, or disposal of hazardous substances or hazardous wastes
(as
hazardous substances and hazardous wastes are defined in ISRA) on site, above
ground or below ground (all of the foregoing being hereinafter collectively
referred to as the Presence of Hazardous Substances), or, (B) that Tenant's
and/or said Occupant's then present use does involve the Presence of Hazardous
Substances, in which event, said affidavit shall describe in detail that portion
of Tenant's and/or said Occupant's operations which involves the Presence of
Hazardous Substances. Said description shall, inter alia,
identify each Hazardous Substance and describe the manner in which it is
generated, handled, manufactured, refined, transported, treated, stored, and/or
disposed of. Tenant and/or said Occupant shall supply Landlord with such
additional information relating to said Presence of Hazardous Substances as
Landlord may request.
34
(d) Without
limiting the foregoing, Tenant agrees,
(i)
at
its sole cost and expense, to promptly discharge and remove any lien or other
encumbrance against the Premises arising from or in connection with Tenant's
failure or inability, for any reason whatsoever, to observe or comply with
ISRA
and/or the provisions of this Article 37; and
(ii)
to
indemnify and hold Landlord harmless from and against any and all liability,
penalties, losses, expenses, damages, costs, claims, causes of action, judgments
and/or the like, of whatever nature, including, but not limited to, reasonable
attorneys' fees, to the extent said lien, encumbrance, liability, penalty,
loss,
expense, damage, cost, claim, cause of action, judgment and/or the like arise
from or in connection with Tenant's failure or inability, for any reason
whatsoever, to observe or comply with ISRA and/or the provisions of this Article
37.
(e) Tenant
further represents, covenants and agrees that the Premises shall not, without
the prior written consent of Landlord having been obtained, at any time during
the term of this Lease, contain any underground or above-ground tanks for the
storage of fuel oil, gasoline and/or other petroleum products or
by-products.
(f) Tenant
agrees that each of the foregoing provisions of this Article 37 shall survive
the expiration or earlier termination of the term of this Lease.
(g)
Landlord
shall, at its cost and expense (ie., not an Operating Cost pursuant to Article
18 hereinabove), be responsible for the cleanup of any Hazardous Substances
at
the Real Property which were present prior to the Commencement Date and whose
presence was not caused by Tenant or Tenant’s agents, employees, invitees,
contractors and/or licensees. Landlord shall also, at its cost and expense
(ie.,
not an Operating Cost pursuant to Article 18 hereinabove), be responsible for
the cleanup of any Hazardous Substances at the Real Property whose presence
arises after the Commencement Date, provided the presence of such Hazardous
Substances is not caused by Tenant or Tenant’s agents, employees, invitees,
contractors and/or licensees. Nothing herein shall in any limit Landlord’s right
to attempt to cause any responsible party to remediate any environmental
condition caused in whole or in part by such responsible party or to seek
recovery from such responsible party of all costs incurred by Landlord in
connection therewith.
(h) Notwithstanding
anything to the contrary contained herein, Landlord acknowledges that ISRA
is
not currently applicable to the Premises or Tenant’s use and occupancy
thereof.
A R T I C L E 38.
INITIAL
LEASEHOLD IMPROVEMENTS
Section
1.
Tenant,
at its cost and expense, subject to the “Tenant Improvement Allowance” (as
hereinafter defined), shall prepare the Premises for Tenant’s occupancy in
accordance with plans and specifications to be agreed to by Landlord and Tenant
(the “Approved Plans”). Landlord and Tenant shall work in good faith to agree
upon the Approved Plans, and once agreed upon, a set of Approved Plans shall
be
initialed by Landlord and Tenant and annexed hereto as Exhibit H . All such
work
to be performed by Tenant is herein referred to as the “Work”. The Work shall be
performed by Tenant in a good and workmanlike manner in accordance with the
terms and provisions of Article 8 of this Lease and in compliance with all
applicable laws, ordinances, rules, regulations and requirements of governmental
authorities and Landlord’s insurance company. The Work shall not be undertaken
until Tenant shall have procured, so far as the same shall be required from
time
to time, all permits and authorizations of the various governmental agencies
having jurisdiction thereover. Landlord agrees to cooperate with Tenant in
procuring all such permits and authorizations, provided that Landlord shall
not
be required to incur any cost or expense (other than the Tenant Improvement
Allowance) in connection therewith. Tenant shall procure and maintain an
adequate workers’ compensation insurance policy and such additional insurance
policies as Landlord shall reasonably request to insure against losses, damages
or claims arising out of, or from, the Work. In performing the Work, Tenant
shall only use a general or prime contractor first approved by Landlord in
writing, such approval not to be unreasonably withheld, conditioned or delayed.
The Work may be performed during normal business hours provided reasonable
care
is taken by Tenant and Tenant’s contractors and construction workers to limit
construction noise to the extent practical. Tenant covenants and agrees to
diligently pursue the completion of the Work. Landlord shall contribute a sum
of
up to $25.00 per gross rentable square foot of the Premises towards the cost
to
perform the Work (the “Tenant Improvement Allowance”). In the event that the
cost to perform the Work shall exceed $25.00 per gross rentable square foot
of
the Premises, Tenant shall be solely responsible for such excess amount.
Landlord shall pay the Tenant Improvement Allowance to Tenant in the form of
progress payments as follows: Tenant shall designate an individual to serve
as
Tenant’s Construction Representative. Such designation may be changed at any
time in accordance with the notice provision of this Lease, but only one
individual may be so designated at any one time. On or about the last day of
each month, Tenant’s Construction Representative shall submit to Landlord an
application for payment (the “Application for Payment”) which shall include a
copy of the AIA Form “Contractor’s Application for Payment” with an appropriate
line item breakdown, prepared by Tenant’s Construction Representative, listing
all costs pertaining to the Work for which Tenant is requesting payment.
Tenant’s Construction Representative shall also deliver to Landlord (i) an
affidavit of Tenant certifying as to the completion of those items of the Work
for which payment is being requested, (ii) an affidavit of Tenant’s general or
prime contractor setting forth the names and addresses of the subcontractors,
sub-subcontractors, suppliers of materials or equipment to the general or prime
contractor, subcontractors or sub-subcontractors, design professionals,
construction managers and consultants, the amounts previously paid by the
general or prime contractor to so-called “first tier” subcontractors and
suppliers, and (iii) signed releases or waivers of construction lien rights
by
the general or prime contractor to the extent of the payments received and
the
payment to be received from the progress payment being requested by Tenant.
Landlord shall not be required to make any progress payment while there is
a
construction lien filed against the Real Property. Within twenty (20) business
days after Landlord’s receipt of the items listed above, Landlord shall make a
payment to Tenant in accordance with the Application for Payment. Landlord
and
Tenant shall use their best efforts to coordinate their payment obligations
in
connection with the Work so that all contractors, subcontractors and other
persons or entities performing the Work shall be paid in a timely manner. Upon
completion of the Work, Tenant shall submit to Landlord a final construction
lien waiver from Tenant’s general or prime contractor. Any changes in the Work
desired by Tenant shall be submitted in writing (with plans and specifications
where applicable) and shall be subject to Landlord’s reasonable approval.
Notwithstanding anything to the contrary contained herein, in the event that
Landlord fails to make any progress payment(s) required to be made by Landlord
pursuant to this Article 38, Section 1 within ten (10) days after receiving
written notice of such failure, Tenant shall have the right, but not the
obligation, to make such payment(s) on behalf of Landlord, and all costs
incurred by Tenant in connection with such payment(s), together with interest
computed thereon at the Prime rate and all reasonable legal fees and court
costs, shall be paid by Landlord to Tenant on demand. Under no circumstances
shall the foregoing provisions of this Article 38, Section 1 entitle Tenant
to
withhold or reduce any installments of Fixed Rent payable by Tenant
hereunder.
35
Section
2.
In
addition to the Tenant Improvement Allowance, Landlord shall pay Tenant the
“
Lobby Renovation Allowance” (as hereinafter defined). For purposes of this
Lease, the “Lobby Renovation Allowance” shall mean the lesser of (i) Tenant’s
actual out of pocket costs incurred in connection with the performance of the
“Lobby Renovations” (as hereinafter defined), or (ii) the cost necessary to
renovate the elevator lobbies located on the 16th
and
17th
floors
of the Building to be consistent with the quality of the elevator lobby located
on the 12th
floor of
the Building. For purposes of this Lease, the Lobby Renovations shall mean
any
work performed by Tenant to renovate the elevator lobbies located on the
16th
and
17th
floors
of the Building in connection with Tenant’s initial occupancy of the Premises.
Landlord shall pay the Lobby Renovation Allowance to Tenant in the form of
progress payments in the same manner and in accordance with the terms and
provisions pertaining to Landlord’s payment of the Tenant Improvement Allowance
as set forth in Section 1 of this Article 38.
36
Section
3.
In
addition to the Tenant Improvement Allowance, Landlord shall, at Landlord’s cost
and expense (ie., not funded out of the Tenant Improvement Allowance), renovate
the restrooms located on the 16th
and 17
floors of the Building, including new fixtures, tiles, countertops, partitions,
ceiling and lighting (“Landlord’s Work”). Materials shall be agreed upon by
Landlord and Tenant during the design process. Landlord and Tenant shall
coordinate the performance of the Work and the Landlord’s Work to avoid
interference.
Section
4. Notwithstanding
anything to the contrary contained herein, Landlord shall be solely responsible
for the cost of all construction documents prepared by Rotwein & Blake
Architects as well as for any required engineering services, all of which shall
not be funded out of the Tenant Improvement Allowance.
Section
5.
All
Work and Landlord’s Work shall be delivered to Landlord with the Premises in
good working order and repair upon the termination of this Lease, except that
Tenant shall have the right to remove its recording studios from the Premises
upon the expiration or sooner termination of the term of this Lease; provided,
however, that Tenant shall, at its own cost and expense, repair any damage
caused by such removal and shall restore the Premises to the condition that
it
was in prior to the installation of such recording studios. The provisions
of
this Article 38 shall survive any termination of this Lease.
A R T I C L E 39.
SECURITY
DEPOSIT
Section
1.
Upon
execution of this Lease, the Tenant shall deposit with Landlord the sum of
$157,066.67 (the equivalent of two months rent of the first lease year) as
security for the full and faithful performance of all obligations under this
Lease upon the part of Tenant to be performed. Upon the expiration of the term
of this Lease, and providing Tenant is not in default hereunder and has
performed all of the conditions of this Lease, Landlord shall return the said
sum to Tenant within thirty (30) days of the expiration of the term of this
Lease. Tenant covenants and agrees that it will not assign, pledge, hypothecate,
mortgage or otherwise encumber the aforementioned security during the term
of
this Lease. It is expressly understood and agreed that Landlord shall have
the
right to co-mingle the security funds with its general funds and said security
shall not be required to be segregated.
Section
2.
In the
event of the failure of Tenant to keep and perform any of the terms, covenants
and conditions of this Lease to be kept and performed by Tenant, then at the
option of Landlord said Landlord may, after terminating this Lease, appropriate
and apply said entire deposit, or so much thereof as may be necessary to
compensate the Landlord for all loss or damage sustained or suffered by Landlord
due to such breach on the part of Tenant. Should the entire deposit, or any
portion thereof, be appropriated and applied by Landlord for the payment of
overdue rent or other sums due and payable to Landlord by Tenant hereunder,
or
should there be any increase in the Fixed Rent then Tenant shall, upon the
written demand of Landlord, forthwith remit to Landlord a amount equal to the
portion appropriated or applied by Landlord as above provided, and/or the amount
of any increase in the Fixed Rent, as the case may be, and Tenant's failure
to
do so within five (5) days after receipt of such demand shall constitute a
breach of this Lease.
37
A R T I C L E 40.
INTENTIONALLY
DELETED
A R T I C L E 41.
HOLDING
OVER
In
the
event Tenant remains in possession of the Premises after the expiration of
the
term of this Lease (the "Holdover Period"), in addition to any damages to which
Landlord may be entitled or other remedies Landlord may have by law, Tenant
shall pay to Landlord a monthly rental for the Holdover Period as follows:
(a)
for the first two (2) months of the Holdover Period at the rate of 150% of
the
Fixed Rent payable during the last lease year of the term of this Lease, plus
all items of additional rent and other charges with respect to the Premises
payable by Tenant during the last lease year of the term of this Lease; and
(b)
for each month of the Holdover Period after the second month, at the rate of
200% of the Fixed Rent payable during the last lease year of the term of this
Lease, plus all items of additional rent and other charges with respect to
the
Premises payable by Tenant during the last lease year of the term of this Lease.
Nothing herein contained shall be deemed to give Tenant any right to remain
in
possession of the Premises after the expiration of the term of this
Lease.
A R T I C L E 42.
AUTHORITY
OF LEASE SIGNATORIES
Each
person signing this Lease on behalf of Tenant represents that he has full
authority to do so and that this Lease binds the Tenant.
A R T I C L E 43.
CONDOMINIUM
CONVERSION
Section
1. Tenant
hereby acknowledges that Landlord reserves the right to convert all or a portion
of the Building into two or more condominium units, provided that such
conversion will not (i) adversely affect the business terms hereof, (ii)
decrease Tenant’s rights or increase Tenant’s obligations hereunder, (iii)
interfere with Tenant’s use and enjoyment of the Premises, or (iv) adversely
affect the quality of services provided by Landlord hereunder. Tenant agrees
that, in such event, certain provisions of the Lease may require modification,
including, without limitation, the definitions of the Premises, the Common
Areas, Tenant’s Proportionate Share, Base Year, Operating Costs and taxes. By
way of example only, if the Building is converted into 2 condominium units,
Tenant’s Proportionate Share for the payment of taxes may be re-calculated by
dividing the entire square footage of the condominium unit that contains the
Premises, by the square footage of the Premises. Tenant shall pay Tenant’s
Proportionate Share of taxes on the condominium unit based on the recalculated
Proportionate Share. Tenant agrees to execute an appropriate amendment to this
Lease (the “Condominium Conversion Lease Amendment”) to reflect such
modifications, provided that no such modifications will (i) adversely affect
the
business terms hereof, (ii) decrease Tenant’s rights or increase Tenant’s
obligations hereunder, (iii) interfere with Tenant’s use and enjoyment of the
Premises, or (iv) adversely affect the quality of services provided by Landlord
hereunder. Landlord shall pay Tenant an amount not to exceed $1,500.00 to cover
Tenant’s reasonable legal fees incurred in connection with its review and
execution of the Condominium Conversion Lease Amendment.
Section
2. Subject
to the terms and provisions of Section 1 of this Article 43, Landlord shall
have
the right to alter the Building and the Common Areas, including without
limitation, changes to the points of access to the Building and/or to the
configuration of the footprint of the Building, for the conversion of the
Building into condominium units and for the sale of individual units therein.
Notwithstanding the foregoing, Tenant shall at all times have reasonable access
to the Building and the Premises.
38
A R T I C L E 44.
ADDITIONAL
SERVICES
Landlord
shall have the option, in Landlord’s sole discretion to provide concierge
services, a fitness center and/or conference facilities (the “Additional
Services”) for use by all tenants in the Building. Landlord shall provide Tenant
with a copy of, and Tenant shall abide by, such reasonable rules and regulations
made by Landlord to govern the Additional Services and thereafter such rules
and
regulations shall have the same force and effect as if originally made a part
of
this Lease. If Landlord provides the Additional Services, all reasonable costs
and expenses incurred by Landlord in the provision, operation and maintenance
of
the Additional Services shall be included in Operating Costs.
A
R T
I C L E 45.
ROOFTOP
ANTENNA
Section
1.
(a)
Tenant may erect on the roof of the Building at Tenant=s
sole
cost and expense, one (1) satellite antenna/transmission device (the “Antenna”)
subject to the terms and conditions set forth in Article 8 of the Lease and
subject further to the terms and conditions set forth hereinafter. Prior to
installing the Antenna, Tenant shall provide Landlord with plans and
specifications therefor, as well as structural calculations and such other
information pertaining to the Antenna as Landlord may reasonably require.
Landlord=s
prior
consent to such plans and specifications, as well as the location, manner of
installation and control of the Antenna shall be required, such consent not
to
be unreasonably withheld, conditioned or delayed. Tenant shall, within ten
(10)
days of being billed therefor by Landlord, reimburse Landlord for all reasonable
expenses incurred by Landlord in connection with its review of the foregoing.
Tenant shall obtain, at its sole cost and expense, all governmental permits
and
approvals required for the installation and use of the Antenna and if necessary,
Landlord shall reasonably cooperate with Tenant in the application for such
permits and approvals. Tenant shall install the Antenna in a good and
workmanlike manner using a roofing contractor reasonably approved by Landlord.
Once installed, the Antenna shall be deemed to be a part of the Premises and
all
references in the Lease to the Premises shall include said Antenna. Without
limitation, Tenant shall, at its sole cost and expense, procure all policies
of
insurance for the purpose of insuring the Antenna in accordance with the terms
set forth in the Lease. In addition, Tenant shall be solely responsible, at
its
sole cost and expense, for the maintenance and repair of the Antenna, and shall
indemnify and hold harmless Landlord from and against all liability, claims
or
costs, including reasonable legal fees arising from the installation and/or
use
of the Antenna. Subject to the terms and provisions of this Article 45, Landlord
shall allow Tenant’s qualified antenna technician access to the roof for the
purpose of maintaining and repairing the Antenna, provided that such qualified
antenna technician shall maintain all required insurance protecting against
injury to persons or damage to property arising in connection with such access,
maintenance and/or repair. Tenant shall also be responsible for the repair
of
any damage to the Building or the roof caused by the installation and/or use
of
the Antenna. Upon such installation, Tenant shall assume full responsibility
for
the cost of repair and/or replacement of that portion of the roof affected
by
Tenant=s
installation of the Antenna. Landlord reserves the right, at Tenant=s
sole
cost and expense, to have the roof inspected by Landlord=s
roofing
contractor and Tenant agrees that in the event that any repair or replacement
of
the roof is required, Tenant will use the roofing contractor reasonably approved
by Landlord to perform such repair or replacement to the whole or a portion
of
the roof as may be reasonably required in accordance with roofing standards
accepted in the industry. Under no circumstances shall Landlord be liable for
any damage to or vandalism of the Antenna, unless due to Landlord’s gross
negligence or wilful misconduct. In addition, Landlord shall in no event be
responsible if, for any reason whatsoever, the Antenna does not perform to
the
expectations of Tenant. In using the Antenna, Tenant agrees: (i) not to disrupt,
adversely affect or interfere with any other tenant=s
or
other occupant=s
use and
enjoyment of its leased premises or the Common Areas of the Building, and (ii)
not to disrupt, adversely affect or interfere with any other providers of
telecommunications services to the Building. Tenant agrees not to grant any
third parties the right to utilize in any manner, or otherwise benefit from,
the
Antenna. Tenant further agrees that Landlord may install and operate, and may
permit the installation and operation by others of, additional satellite antenna
transmission/reception devices on the roof of the Building.
39
Section
2. The
Antenna shall be the property of Landlord and shall remain on and be surrendered
with the Premises in good working order and repair upon the expiration or
earlier termination of the Lease, unless Landlord shall notify Tenant that
it
desires the Antenna to be removed at the expiration or earlier termination
of
the Lease, in which event Tenant agrees to remove the Antenna on or prior to
the
Expiration Date, restore the applicable portion of the roof to its existing
condition prior to the installation of the Antenna and repair any damage caused
by such removal. Tenant=s
failure
to timely comply with the immediately preceding sentence shall constitute a
holding over of the Premises by Tenant until such time as the Antenna is removed
and any damage caused by such removal is repaired by Tenant. In addition, if,
on
or before the Expiration Date, Tenant fails to both remove the Antenna and
repair any damage caused thereby, then, Landlord, at its sole option, may,
at
Tenant=s
sole
cost and expense, remove the Antenna, keep the Antenna without compensation
to
Tenant or discard it without liability to Landlord and restore any damage caused
by the removal of the Antenna.
Section
3. Tenant,
together with Landlord and other tenants of the Building, may utilize the
existing 600KW generator located on the roof of the Building (the “Generator”).
Tenant shall pay all costs to connect its equipment to the Generator. In
addition, Tenant shall be responsible, along with other tenants utilizing the
Generator, for any costs or expenses incurred by Landlord to maintain and repair
the Generator as well as all costs for oil for the Generator. Tenant’s share of
such costs will be determined by dividing Tenant’s kilowatt usage of the
Generator by the total kilowatt capacity of the Generator. Notwithstanding
anything to the contrary contained herein, any damage to the Generator caused
by
the negligence or willful misconduct of Tenant, or its employees, invitees,
licensees or agents shall be repaired promptly by Tenant at its sole cost and
expense or, at Landlord’s election may be repaired by Landlord in which event
Tenant shall reimburse Landlord for any actual and out of pocket costs and
expenses reasonably incurred. All amounts due from Tenant to Landlord pursuant
to this Article 45, Section 3 shall be paid, as additional rent, within ten
(10)
days of Landlord’s invoice therefor. Tenant’s said right to utilize the
Generator shall be limited to periods during which regular electric service
to
the Premises is unavailable. Landlord hereby acknowledges that maintenance
of
the Generator includes the periodic testing thereof. Landlord shall provide
Tenant with at least ten (10) business days’ notice prior to the commencement of
any such testing. Landlord shall maintain guaranteed fuel delivery contracts
as
part of the required Generator maintenance hereunder. Access to the Generator
facilities shall be restricted to Landlord and, any condominium association
as
well as their designated service personnel. Tenant and other tenants at the
Building shall not have access to the Generator facilities. Landlord hereby
acknowledges that Tenant requires 300KVA in Generator capacity and agrees that
the Generator shall provide the same.
A R T I C L E 46.
MISCELLANEOUS
(a) The
covenants and agreements herein contained shall bind and inure to the benefit
of
Landlord and Tenant, their heirs, executors, administrators, successors and
assigns.
(b) If
any
provision of this Lease or the application thereof to any person or circumstance
shall be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby.
(c) Whenever
herein the singular number is used, the same shall include the plural, and
the
masculine gender shall include the feminine and neuter genders.
40
(d) The
enumeration anywhere in this Lease of any right or remedy of either party shall
not be construed as an exclusion or substitution of any other rights or remedies
conferred under this Lease or applicable by law.
(e) This
Lease shall not be modified or canceled except by a writing subscribed to by
the
parties.
(f) The
submission of this Lease for examination does not constitute a reservation
of or
option for the premises and this Lease becomes effective as a lease only upon
execution and delivery thereof by Landlord and Tenant.
(g) This
Lease shall not be recorded. Any recordation by Tenant shall constitute a
material default entitling Landlord to terminate this Lease.
(h) This
Lease shall be governed by and in accordance with the laws of the State of
New
Jersey.
(i) Landlord
shall have, with respect to any payment of additional rent or other charge
to be
paid by Tenant pursuant to this Lease, the same rights and remedies under this
Lease and at law and in equity as are available to Landlord for non-payment
of
Fixed Rent.
IN
WITNESS WHEREOF these presents have been signed sealed and delivered the day
and
year first above written.
WITNESS: WASHINGTON
PARK FIDELCO, LLC
(Landlord)
/s/
Xxxxxxxx Krawicki By: /s/
Xxxxx Xxxxxxxxx
Director
, Member
WITNESS: AUDIBLE,
INC.
(Tenant)
/s/
Xxxxxxxx Krawicki By: /s/
Xxxxx Xxxxxx
P:\DOCS\SEC\GPK\Leases\Washington
Park Fidelco\Audible\Audible Lease Agreemen11CL.doc
09/26/06
RCS
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