SECOND LEASE MODIFICATION AGREEMENT
THIS SECOND LEASE MODIFICATION AGREEMENT (the "Second
Modification Agreement") is made this 3rd day of March, 1998 by and among EI 0
XXXXXXXXX XXXXXX, INC. (as successor in interest to Iron Investments Corp.), a
New Jersey corporation, and HANOVER PARK FOR INDUSTRY, a New Jersey general
partnership, both having an address at 000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxx
Xxxxxx 00000 (collectively, the "Landlord"), and INTERNET BROADCASTING SYSTEM,
INC., a Delaware corporation having an address at 0 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 (the "Tenant").
W I T N E S S E T H
WHEREAS, pursuant to a certain lease Agreement dated as of May
1, 1997, (the "Lease"), the Landlord did lease to the Tenant, and the Tenant did
lease and accept from the landlord, certain premises consisting of 3,100 square
feet of space (the "Original Premises") located on the third floor of the
building commonly known as 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx (the
"Building"), as more particularly shown on Exhibit "A" annexed hereto;
WHEREAS, pursuant to a certain Lease Modification Agreement
and Expansion Agreement dated November 26, 1997 (the "First Modification
Agreement"), the Landlord did lease to the Tenant, and the Tenant did lease from
the Landlord, certain additional premises located on the third floor of the
building subject to the ability of the Landlord to recapture such premises;
WHEREAS, the Landlord has recaptured such additional Premises;
WHEREAS, the Tenant and the Landlord desire to terminate the
First Modification Agreement in its entirety and to amend the Lease as
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which being
hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms
Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
2. Termination of First Modification Agreement The First
Modification Agreement is hereby terminated in its entirety.
3. Expansion Premises
(a) Together with the nonexclusive right to use those
portions of the Building intended for the common use of all of its occupants,
the Landlord hereby leases to the Tenant and the Tenant hereby leases from the
Landlord the following additional space at the Building (collectively, the
"Additional Premises") comprised as follows: Premises consisting of 6,730 square
feet of gross rentable space located on the third floor of the Building, as more
particularly shown on Exhibit "A" annexed hereto.
(b) Except as otherwise specifically set forth herein, the
lease of the Additional Premises shall be subject to and in accordance with the
terms of the Lease. Any default occurring under the Lease with respect to the
Original Premises or the Additional Premises shall also constitute a default
with respect to all premises governed by the Lease and the Landlord shall be
entitled to exercise all remedies available under the Lease with respect to such
defaults.
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4. Expansion Lease Term
(a) Subject to possible postponement as set forth in
Paragraph 6 below, the lease commencement date for the Additional Premises shall
be April 1, 1998 (the "Expanded Commencement Date").
(b) Subject to possible postponement as set forth in
Paragraph 6 below, the lease expiration date of the lease term for the Original
Premises is hereby amended to be, and the term of lease for the Additional
Premises shall expire on March 31, 2003 (the "Expanded Expiration Date").
5. Rental
(a) For the period from and including the Expanded
Commencement Date through and including the Expanded Expiration Date, the Tenant
covenants and agrees to pay to the Landlord a Base Rental for the Original
Premises and the Expansion Premises (collectively, the "Expanded Premises") of
Seven Hundred Seventy-Seven Thousand Two Hundred Seventy-Three and 20/100
($777,273.20) Dollars. Such Base Rental shall be payable in monthly installments
of Twelve Thousand Nine Hundred Fifty Four and 55/100 ($12,954.55) Dollars
commencing on the Expanded Commencement Date and continuing thereafter on the
first day of each succeeding calendar month.
(b) In addition to the Base Rental for the Expanded
Premises, the Tenant shall also pay Additional Rent for the Expanded Premises.
For the purposes of determining the Tenant's share of the Operating Increases
with respect to the Expanded Premises pursuant to Paragraph 20 of the Lease, the
"Base Year" shall be calendar year 1998 and the "Lessee's Proportionate Share"
shall be 14.04% (i.e., 9,830 total rentable square feet divided by 70,000).
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(c) The Tenant's obligation to pay Base Rent and Additional
Rent with respect to the Original Premises for periods through and including the
Expanded Commencement Date shall continue in accordance with the terms of the
Lease.
6. Landlord's Work
(a) Except as set forth in Paragraph 6 (b) below, the
Landlord shall deliver the Expanded Premises to the Tenant on the Expanded
Commencement Date in its "as is, where is" condition and the Landlord shall not
be obligated to perform any space improvements or other work thereto. The
Landlord shall not be obligated to perform any space improvements or other work
with respect to the Original Premises.
(b) Notwithstanding anything to the contrary contained
herein, prior to the Expanded Commencement Date, the Landlord, at its sole cost
and expense, shall arrange for the performance of such space improvement work as
is necessary for the Expanded Premises to substantially comply with the
specifications set forth in Exhibit A annexed hereto (the "Landlord's Work").
All Landlord's Work shall be completed in accordance with the building standard
for the Building, a copy of which is annexed hereto as Exhibit "B".
(c) The Landlord shall not be responsible for any delay in
the completion of the Landlord's Work by reason of the occurrence of any cause
or causes beyond the Landlord's reasonable control, which shall include, but not
be limited to, labor disputes, civil commotion, acts of governmental authority
or inability to comply with governmental regulations or controls, fire or other
casualty, inability to obtain any building material, acts of God or other
unusual causes beyond the Landlord's reasonable control ("Event of Force
Majeure"). In the event that any portion of the Landlord's Work with respect to
the Additional Premises has not been completed on or before the Expanded
Commencement Date as the result of any Event of Force Majeure and the Tenant
cannot as a result thereof lawfully occupy the Additional Premises, the Expanded
Commencement Date shall be delayed until such date upon which the Tenant can
lawfully occupy the Additional Premises. In the event that the Additional
Premises shall not be available for lawful occupancy on or prior to the Expanded
Commencement Date other than as a result of an Event of Force Majeure, the
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Tenant's sole remedy hereunder for such delay shall be the right to terminate
the Lease with respect to the Additional Premises if such space is not made
available for lawful occupancy within fifteen (15) days following the Tenant's
written notice to the Landlord of its intention to so terminate, such notice not
to be given on or before the Expanded Commencement Date. Any delay in the
completion of the Landlord's work resulting from changes in the Landlord's Work
hereafter requested by the Tenant shall not effect the Expanded Commencement
Date and the Tenant's obligations to pay Rent with respect to the Expanded
Premises regardless of the period of such delay.
(d) In the event of any delay in the Expanded Commencement
Date, the Expanded Expiration Date shall also be delayed by a like number of
days. If as a result of any delay, the Expanded Commencement Date occurs on a
day other than the first day of a calendar month, the first and last monthly
Base Rental installments with respect to the Expanded Premises shall be pro
rated based upon the number of days in such month that the Lease is in effect
with respect to the Expanded Premises.
(e) On the Expanded Commencement Date, as a condition to
the Tenants right to take possession of the Additional Premises, the Tenant
shall pay to the Landlord the amount of Ten Thousand ($10,000) Dollars on
account of a portion of the costs incurred by the Landlord in connection with
the Landlord's work.
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7. Tenant's Work
The Tenant, at its sole cost and expense, shall perform the
electrical work at the Additional Premises as set forth in Paragraph 3.A. of the
January 29, 1998 memorandum of the minutes of the January 27, 1998 construction
meeting. Any delay in the completion of this work shall be the Tenant's
responsibility and shall not delay the Expanded Commencement Date.
8. Expansion Security Deposits
Simultaneously with the execution and delivery hereof, the
Tenant shall deliver to the Landlord additional security for the Additional
Premises in the amount of Eighteen Thousand Eight Hundred Four and 94/100
($18,804.94) Dollars (the Landlord acknowledges that as of February 24, 1998, it
has already received $8,720 of the additional security and that the balance now
due is $10,084.94). On the third anniversary date of the Expanded Commencement
Date, the Landlord shall return to the Tenant one-half of such additional
security but only if the Tenant is not then and has not been in default of any
of its obligations under the Lease with respect to the Expanded Premises. Except
as provided in the immediately preceding sentence, such additional security
amounts shall be used, applied and retained by the Landlord in accordance with
Paragraph 37 of the Lease.
9. Parking
Commencing as of the Expanded Commencement Date, the
Landlord shall provide forty-nine (49) automobile parking spaces for the
non-exclusive use of the Tenant in common with the other tenants of the
Building.
10. Continuing Effect of Lease
Except as expressly modified hereby, all of the provisions
of the Lease shall remain unchanged and continue in full force and effect and be
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applicable to both the Original Premises and the Additional Premises. In the
event that any term or provision of this Second Modification Agreement shall
conflict with any term of provision of the Lease, the term or provision of this
Second Modification Agreement shall govern and control.
11. Miscellaneous
(a) This Second Modification Agreement contains the entire
agreement and understanding between the parties with respect to the Expanded
Premises and the extension of the term of lease with respect to the Original
Premises. There are no oral understandings, terms or conditions, and neither
party has relied upon any representation, express or implied, not contained in
this Second Modification Agreement. All prior understandings, terms or
conditions with respect to the Expanded Premises and the extension of the lease
term with respect to the Original Premises are hereby deemed merged into this
Second Modification Agreement. This Second Modification cannot be changed or
supplemented other than in a writing signed by both parties.
(b) This Second Modification Agreement shall be binding
upon, and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Lease on the day and year first above written.
WITNESS/ATTEST: LANDLORD:
EI 0 XXXXXXXXX XXXXXX, INC.
(as successor in interest to
Iron Investments Corp.)
By: /s/ X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
HANOVER PARK FOR INDUSTRY
By: /s/ X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Authorized Agent
TENANT:
INTERNET BROADCASTING SYSTEM, INC.
By: /s/ X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxx, Xx.
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Name: Xxxx Xxxxxxxx, Xx.
Title: President
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Title Title
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