New Jersey-Wayne-65 Willowbrook Boulevard Lease - Passaic Investment LLC, Sixty-Five Willowbrook Investment LLC, Wayne Investment LLC and Audible Inc.
OFFICE LEASE
JUNE 20, 1997
BY AND BETWEEN
PASSAIC INVESTMENT LLC,
SIXTY-FIVE WILLOWBROOK INVESTMENT LLC,
AND WAYNE INVESTMENT LLC,
AS TENANTS-IN-COMMON ("SIXTY-FIVE WILLOWBROOK TENANCY")
AS "LANDLORD"
AND
AUDIBLE, INC.
AS "TENANT"
WAYNE OFFICE BUILDING
65 WILLOWBROOK BLVD.
WAYNE, NEW JERSEY
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TABLE OF CONTENTS
ARTICLES PAGE
1 - DEFINITIONS 5
2 - DEMISE AND TERM 9
3 - RENT 10
4 - USE OF DEMISED PREMISES 11
5 - PREPARATION OF DEMISED PREMISES 12
6 - TAX AND OPERATING EXPENSE PAYMENTS 13
7 - COMMON AREAS 15
8 - SECURITY 15
9 - SUBORDINATION 16
10 - QUIET ENJOYMENT 17
11 - ASSIGNMENT, SUBLETTING AND MORTGAGING 17
12 - COMPLIANCE WITH LAWS 20
13 - INSURANCE AND INDEMNITY 21
14 - RULES AND REGULATIONS 23
15 - ALTERATIONS 23
16 - LANDLORD'S AND TENANTS PROPERTY 24
17 - REPAIRS AND MAINTENANCE 25
18 - ELECTRIC ENERGY 26
19 - HEAT, VENTILATION AND AIR-CONDITIONING 27
20 - OTHER SERVICES; SERVICE INTERRUPTION 27
21 - ACCESS, CHANGES AND NAME 28
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22 - MECHANICS' LIENS AND OTHER LIENS 29
23 - NON-LIABILITY AND INDEMNIFICATION 29
24 - DAMAGE OR DESTRUCTION 30
25 - EMINENT DOMAIN 32
26 - SURRENDER 33
27 - CONDITIONS OF LIMITATION 34
28 - RE-ENTRY BY LANDLORD 35
29 - DAMAGES 35
30 - AFFIRMATIVE WAIVERS 38
31 - NO WAIVERS 39
32 - CURING TENANTS DEFAULTS 39
33 - BROKER 39
34 - NOTICES 39
35 - ESTOPPEL CERTIFICATES 40
36 - ARBITRATION 40
37 - MEMORANDUM OF LEASE 40
39 - MISCELLANEOUS 42
40 - RIGHT OF FIRST REFUSAL 44
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EXHIBITS
Exhibit A - Demised Premises
Exhibit B - Space Drawing
Exhibit C - Description of Land
Exhibit D - Rules and Regulations
Exhibit E - Cleaning Specifications
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OFFICE LEASE
LEASE, dated June 20, 1997, between Passaic Investment LLC, a New Mexico
limited liability company, Sixty-Five Willowbrook Investment LLC, a New Mexico
limited liability company, and Wayne Investment LLC, a New Mexico limited
liability company, as Tenants-in-Common ("Sixty-Five Willowbrook Tenancy")
having an office at 2929 Coors Blvd., NW, Suite 310, Albuquerque, New Mexico
87120 ("Landlord"), and Audible, Inc., a Delaware corporation, having an office
at 65 Willowbrook Blvd., Wayne, New Jersey ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $7,902.50
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: As determined by Landlord.
D. Base Year: The calendar year in which the Lease is executed.
E. Broker: Newmark Partners, Inc.
F. Building: The building located on the Land and known or to be
known as "WAYNE OFFICE BUILDING", 65 Willowbrook Boulevard in Wayne, New Jersey.
G. Business Days: All days except Saturdays, Sundays, days observed
by the federal or state government as legal holidays and such other holidays as
shall be designated as holidays by the applicable building service union
employees' service contract or by the applicable operating engineers' contract.
H. Business Hours: Generally customary daytime business hours, but
not before 8:00 A.M. or after 6:00 P.M., Monday through Friday.
I. Calendar Year: Any twelve-month period commencing on a January 1.
J. Commencement Date: On or about July 1, 1997. In the event that
the Demised Premises are Ready for Occupancy up to fifteen days prior to the
Commencement Date, Tenant shall have the right to take possession in order to
arrange for installation of furniture and data equipment.
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K. Common Areas: All areas, spaces and improvements in the Building and
on the Land which Landlord makes available from time to time for the common use
and benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks, landscaped and planted
areas, community rooms, if any, the managing agent's office, if any, and public
rest rooms, if any.
L. Demised Premises: The space that is or will be located on the fourth
floor of the Building and that is indicated on the floor plan(s) attached hereto
as Exhibit A. The Demised Premises contains or will contain approximately 6,322
square feet of Floor Space.
M. Expiration Date: The Expiration Date will be February 23, 2003.
However, if the Term is extended by Tenant's effective exercise of Tenant's
right, if any, to extend the Term, the "Expiration Date" shall be changed to the
last day of the last extended period as to which Tenant shall have effectively
exercised its right to extend the Term. For the purposes of this definition, the
earlier termination of this Lease shall not affect the "Expiration Date."
Fixed Rent: An amount at the annual rate per square foot multiplied by the
Floor Space of the Demised Premises.
Annual Rate Rate per sq.ft.
07/01/1997- 06/30/1998 $15.00
07/01/1998- 06/30/1999 $15.50
07/01/1999- 06/30/2000 $16.00
07/01/2000- 06/30/2001 $16.50
07/01/2001- 02/23/2002 $17.00
O. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls, or by
the exterior or Common Area face of any wall between the Demised Premises and
any portion of the Common Areas, or by the center line of any wall between the
Demised Premises and space leased or available to be leased to a tenant or
occupant divided by eighty five percent (85%). Any reference to Floor Space of a
building shall mean the floor area of all levels or stories of such building,
excluding any roof, except such portion thereof (other than cooling towers,
elevator penthouses, mechanical rooms, chimneys and staircases, entrances and
exits) as is permanently enclosed, and including any interior basement level or
mezzanine area not occupied or used by a tenant on a continuing or repetitive
basis, and any mechanical room, enclosed or interior truck dock, interior Common
Areas, and areas used by Landlord for storage, for housing meters and/or other
equipment or for other purposes. Any reference to the Floor Space is intended to
refer to the Floor Space of the entire area in question irrespective of the
Person(s) who may be the owner(s) of all or any part thereof.
P. Guarantors: None.
Q. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or
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any other similar body performing the same or similar functions and having
jurisdiction or cognizance over the Land and Building, whether now or hereafter
in force.
R. Land: The Land upon which the Building and Common Areas are located.
The Land is described on Exhibit C.
S. Landlord's Work. Landlord shall provide a turn-key build-out based
upon the single line drawing prepared by Aztec Corporation and attached hereto
as Exhibit B. Landlord's cost shall be capped at $65.000.
T. Legal Requirements: Laws and ordinances of all federal, state, city,
town, county, borough and village governments, and rules, regulations, orders
and directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities
having jurisdiction over the Land and Building, whether now or hereafter in
force, including, but not limited to, those pertaining to environmental matters.
U. Mortgage: A mortgage and/or a deed of trust.
V. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.
W. Operating Expenses: The cost and expense (whether or not within the
contemplation of the parties) for the repair, replacement, maintenance,
policing, insurance and operation of the Building and Land. The "Operating
Expenses" shall, include, without limitation, the following: (i) the cost for
rent, casualty, liability, boiler and fidelity insurance, (ii) if an independent
managing agent is employed by Landlord, the fees payable to such agent (provided
the same are competitive with the fees payable to independent managing agents of
comparable facilities in Passaic County), and (iii) costs and expenses incurred
for legal, accounting and other professional services (including, but not
limited to, costs and expenses for in-house or staff legal counsel or outside
counsel at rates not to exceed the reasonable and customary charges for any such
services as would be imposed in an arms length third party agreement for such
services. In all years subsequent to Base Year, if Landlord is itself managing
the Building and has not employed an independent third party for such
management, Landlord shall be entitled to 25% of the resulting total of all of
the foregoing items making up "Operating Expenses" for Landlord's home office
administration and overhead cost and expense. All items included in Operating
Expenses shall be determined in accordance with generally accepted accounting
principles consistently applied.
X. Permitted Uses: Executive offices of a character consistent with that
of a first class office building.
Y. Person: A natural person or persons, a partnership, a corporation, or
any other form of business or legal association or entity.
Z. Ready for Occupancy: The condition of the Demised Premises when for
the first time the Landlord's Work shall have been substantially completed and
if Landlord is obligated to obtain same, a temporary, permanent, or continuing
Certificate of Occupancy shall have been
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issued permitting use of the Demised Premises for the Permitted Uses. The
Landlord's Work shall be deemed substantially completed notwithstanding the fact
that minor or insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, the noncompletion of which does not
materially interfere with Tenant's use of the Demised Premises.
AA. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (a) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof.
BB. Rent: The Fixed Rent and the Additional Charges.
CC. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to time, which may be reasonably changed by
Landlord from time to time. The Rules and Regulations now in effect are attached
hereto as Exhibit D.
DD. Security Deposit: $15,805.00
EE. Substitute Premises: As defined in Section 38.01.
FF. Successor Landlord: As defined in Section 9.03.
GG. Superior Lease: Any lease to which this Lease is, at the time referred
to, subject and subordinate.
HH. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
II. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
JJ. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
KK. Tenant's Fraction: The Tenant's Fraction shall mean the fraction, the
numerator of which shall be the Floor Space of the Demised Premises and the
denominator of which shall
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be the Floor Space of the Building (4.80%). If the size of the Demised Premises
or the Building shall be changed from the initial size thereof, due to any
taking, any construction or alteration work or otherwise, the Tenant's Fraction
shall be changed to the fraction the numerator of which shall be the Floor Space
of the Demised Premises and the denominator of which shall be the Floor Space of
the Building. In the event Landlord determines that Tenant's utilization of any
item of Operating Expenses exceeds the fraction referred to above, Tenant's
Fraction with respect to such item shall, at Landlord's option, mean the
percentage of any such item (but not less than the fraction referred to above)
which Landlord reasonably estimates as Tenant's proportionate share thereof.
LL. Tenant's Property: As defined in Section 16.02.
MM. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
NN. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
OO. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term.
2.02. Subject to the conditions set forth in this section of the Lease,
Landlord grants to Tenant an option to extend the term of the Lease for a period
of five (5) years (the "Extension Period") in accordance with the following
provisions:
(a) To exercise this option to extend, Tenant must provide Landlord with
written notice of its intent to exercise this option no later than twelve (12)
months prior to the date of expiration of the initial term of the Lease.
(b) The initial Monthly Rent for the Extension Period during the first
year shall be equal to the greater of (i) ninety five percent (95%) of the
Prevailing Rent (as hereinafter defined), or (ii) the Monthly Rent for the
Demised Premises in effect during the last full calendar month of the initial
term of the Lease. Notwithstanding such increase in Monthly Rent, Monthly Rent
shall continue to be subject to any and all costs, expenses and adjustments as
provided in this Lease.
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(c) The Monthly Rent for the Extension Period shall continue to be
subject to any and all costs, expenses and adjustments as provided in this
Lease, all of which shall continue uninterrupted and without modification
throughout the Extension Period.
(d) "Prevailing Rent" shall mean the base rent that would be received by
landlords renting space of quality, size and location comparable to the Demised
Premises, in buildings in the business district of Wayne, New Jersey, for a term
similar to the Extension Period, and subject to the terms of this Lease,
including that the provisions of the Lease related to any and all costs,
expenses and adjustments as provided in this Lease, all of which shall continue
uninterrupted and without modification throughout the Extension Period.
(e) The Prevailing Rent shall be determined by the mutual agreement of
Landlord and Tenant within thirty (30) days after the date Landlord receives
Tenant's notice of its election to exercise this option. In the event Landlord
and Tenant are unable to agree within said thirty (30) day period upon the
Prevailing Rent, then the Prevailing Rent shall be determined by a board of
three (3) licensed real estate brokers. Landlord and Tenant shall each appoint
one (1) broker within ten (10) days after expiration of the thirty (30) day
period, or sooner if mutually agreed upon. The two so appointed shall select a
third within fifteen (15) days after they both have been appointed. Each broker
on said board shall be licensed in the state of New Jersey as a real estate
broker, specializing in the field of commercial leasing in the business district
of Wayne, New Jersey, having no less than five (5) years experience in such
field, and recognized as ethical and reputable within his or her field. Each
broker, within fifteen (15) days after the third broker is selected, shall
submit his or her determination of Prevailing Rent. Prevailing Rent shall be the
mean of the two closest rental rate determination. Landlord and Tenant shall
each pay the fee of the broker selected by it and they shall share equally the
payment of the fee of the third broker.
(f) An addendum setting forth the appropriate terms and conditions upon
which the Demised Premises will be leased during the Extension Period shall be
executed by Landlord and Tenant within ten (10) days after the determination of
the Prevailing Rent.
(g) All terms and provisions of the Lease shall remain in full force and
effect during the Extension Period, except that Tenant shall have no further
option to extend the term of the Lease.
(h) This section (2.02) of the Lease shall become null and void and of no
force and effect if Tenant assigns this Lease or subleases any portion of the
Demised Premises, or if Tenant is in default under this Lease either on the date
Tenant notifies Landlord of its intent to exercise this option or at any time
thereafter up to and including the date upon which the Extension Period is to
commence.
(i) It is agreed and understood the space currently occupied by Tenant is
under a Sublease agreement. Landlord agrees to incorporate the renewal
provisions contained in this Lease to include the space currently under the
sublease, presuming the proper releases of existing options granted to Sublessor
(Painewebber) are released by Painewebber for the benefit of Tenant. Landlord
and Tenant will use best efforts to obtain such releases.
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ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments due in
advance on the first day of each and every calendar month during the Term and
payable by the fifth business day thereafter (except that Tenant shall pay, upon
the execution and delivery of this Lease by Tenant, the Advance Rent, to be
applied against the first installment or installments of Fixed Rent becoming due
under this Lease). If the Commencement Date occurs on a day other than the first
day of a calendar month, the Fixed Rent for the partial calendar month at the
commencement of the Term shall be prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any cheek is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such payments shall be credited.
3.05. In the event that any installment of Rent due hereunder shall be
overdue past five (5) business days, a "Late Charge" equal to four percent (4%)
of any outstanding balance ("Late Payment Rate") for Rent so overdue may be
charged by Landlord for each month or part thereof that the same remains
overdue. In the event that any check tendered by Tenant to Landlord is returned
for insufficient funds, Tenant shall pay to Landlord, in addition to the charge
imposed by the preceding sentence, a fee of $25.00. Any such Late Charges if not
previously paid shall, at the option of the Landlord, be added to and become
part of the next succeeding Rent payment to be made hereunder.
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ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. Subject to Landlord's obligations setforth in Section 1.01(z) here
in above. If any governmental license or permit, including a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit and submit the same to Landlord
for inspection. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building as a first-class office building; (e) impairs or
tends to impair the proper and economic maintenance, operation and repair of the
Building and/or its equipment, facilities or systems; or (f) annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Building.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.0l.(a) The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in, and subject to the provisions of
Landlord's Work defined in attachment. Tenant shall occupy the Demised Premises
promptly after the same are Ready for Occupancy and possession thereof is
delivered to Tenant by Landlord giving to Tenant a notice of such effect. Except
as expressly provided to the contrary in this Lease, the taking of possession by
Tenant of the Demised Premises shall be conclusive evidence as against Tenant
that the Demised Premises and the Building were in good and satisfactory
condition at the time such possession was taken.
5.01.(b) Tenant shall, within three (3) business days of the date hereof,
provide Landlord with all reasonable information Landlord needs to prepare
working drawings for the construction of Landlord's Work. Such information shall
include, but not be limited to layout of the Demised Premises, electrical,
mechanical, plumbing & structural requirements, materials & finishes. Within ten
(10) days of Landlord's receipt of all necessary information, Landlord shall
deliver working drawings to Tenant. Tenant shall, within two (2) business days
of its receipt of working drawings, review and approve the working drawings by
giving Landlord written notice thereof. If Tenant does not respond within said
two (2) business day period, the working drawings shall be deemed approved. If
Tenant disapproves of the working drawings, it shall specify in detail the
reasons for its disapproval. If Tenant makes changes in the working drawings,
the provisions
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of Section 5.02 shall apply. Within 5 days after the working drawings are
approved or deemed approved, Landlord shall submit to Tenant prices for the
construction of any items in excess of Landlords' Work. Tenant shall, within
three (3) business days of its receipt of prices, review and approve the prices
by giving Landlord written notice thereof. If Tenant does not respond within
said three (3) business day period, the prices shall be deemed approved. If
Tenant disapproves of any prices, the provisions of Section 5.02 shall apply.
5.01.(c) Landlord has received approvals from Painewebber for the removal
of the "Common Wall" between Tenant's existing space and the Demised Premises
described herein. Tenant shall be under no obligation to reconstruct this
"Common Wall" at the end of this lease or extension period term.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, f ii any delays due to changes in
or additions to the Landlord's Work, or (ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). The Demised Premises shall be
conclusively presumed to be in satisfactory condition on the Commencement Date
except for the minor or insubstantial details of which Tenant gives Landlord
notice within thirty (30) days after the Commencement Date specifying such
details with reasonable particularity.
5.03. If Landlord is unable to give possession of the Demised Premises on
the Commencement Date because of the holding-over or retention of possession by
any tenant, undertenant or occupant, Landlord shall not be subject to any
liability for failure to give possession, the validity of this Lease shall not
be impaired under such circumstances, and the Term shall not be extended, but
the Rent shall be abated if Tenant is not responsible for the inability to
obtain possession.
5.04. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building and any other buildings and
other improvements on the Land, including, without limitation, the right to move
and/or remove same, provided same shall not unreasonably block or interfere with
Tenant's means of ingress or egress to and from the Demised Premises and
provided that such changes are consistent with a Class B office building.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
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6.01. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Real Estate Taxes. Tenant's Fraction of the Real Estate Taxes
shall be the Real Estate Taxes in respect of the Building for the period in
question, less the Real Estate Taxes attributable to the Base Year, multiplied
by the Tenant's Fraction, plus the Real Estate Taxes in respect of the Land for
the period in question, less the Real Estate Taxes attributable to the Base
Year, multiplied by the Tenant's Fraction. If any portion of the Building shall
be exempt from all or any part of the Real Estate Taxes, then for the period of
time when such exemption is in effect, the Floor Space on such exempt portion
shall be excluded when making the above computations in respect of the part of
the Real Estate Taxes for which such portion shall be exempt. Landlord shall
estimate the annual amount of Tenant's Fraction of the Real Estate Taxes (which
estimate may be changed by Landlord at any time and from time to time), and
Tenant shall pay to Landlord 1/12th of the amount so estimated on the first day
of each month in advance. Tenant shall also pay to Landlord on demand from time
to time the amount which, together with said monthly installments, will be
sufficient in Landlord's estimation to pay Tenant's Fraction of any Real Estate
Taxes thirty (30) days prior to the date when such Real Estate Taxes shall first
become due. When the amount of any item comprising Real Estate Taxes is finally
determined for a real estate fiscal tax year, Landlord shall submit to Tenant a
statement in reasonable detail of the same, and the figures used for computing
Tenant's Fraction of the same, and if Tenant's Fraction so stated is more or
less than the amount theretofore paid by Tenant for such item based on
Landlord's estimate, Tenant shall pay to Landlord the deficiency within ten (10)
business days after submission of such statement, or Landlord shall, at its sole
election, either refund to Tenant the excess or apply same to future
installments of Real Estate Taxes due hereunder. Any Real Estate Taxes for a
real estate fiscal tax year, a part of which is included within the Term and a
part of which is not so included, shall be apportioned on the basis of the
number of days in the real estate fiscal tax year included in the Term, and the
real estate fiscal tax year for any improvement assessment will be deemed to be
the one-year period commencing on the date when such assessment is due, except
that if any improvement assessment is payable in installments, the real estate
fiscal tax year for each installment will be deemed to be the one-year period
commencing on the date when such installment is due. The above computations
shall be made by Landlord in accordance with generally accepted accounting
principles, and the Floor Space referred to will be based upon the average of
the Floor Space in existence on the first day of each month during the period in
question. In addition to the foregoing, Tenant shall be responsible for any
increase in Real Estate Taxes attributable to assessments for improvements
installed by or for the account of Tenant at the Demised Premises. If the
Demised Premises are not separately assessed, the amount of any such increase
shall be determined by reference to the records of the tax assessor.
6.02. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Operating Expenses. Tenant's Fraction of the Operating Expenses
shall be the Operating Expenses for the period in question, less the Operating
Expenses for the Base Year, multiplied by Tenant's Fraction. Landlord shall
estimate Tenant's annual Fraction of the Operating Expenses (which estimate may
be reasonably changed by Landlord from time to time), and Tenant shall pay to
Landlord 1/12th of the amount so estimated on the first day of each month in
advance. If at any time Landlord changes its estimate of Tenant's Fraction of
the Operating Expenses for the then current Calendar Year or partial Calendar
Year, Landlord shall give notice to Tenant of such change and within ten (10)
business days after such notice Landlord and
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Tenant shall adjust for any overpayment or underpayment during the prior months
of the then current Calendar Year or partial Calendar Year. After the end of
each Calendar Year, including any partial Calendar Year at the beginning of the
Term, and after the end of the Term, Landlord shall submit to Tenant a statement
in reasonable detail stating Tenant's Fraction of the Operating Expenses for
such Calendar Year, or partial Calendar Year in the event the Term shall begin
on a date other than a January 1st and/or end on a date other than a December
31st, as the case may be, and stating the Operating Expenses for the period in
question and the figures used for computing Tenant's Fraction, and if Tenant's
Fraction so stated for such period is more or less than the amount paid for such
period, Tenant shall pay to Landlord the deficiency within ten (10) business
days after submission of such statement, or Landlord shall, at its sole
election, either refund to Tenant the excess or apply same to future
installments of Operating Expenses due hereunder. All computations shall be made
in accordance with generally accepted accounting principles.
6.03. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.02 shall be conclusive and binding upon Tenant unless within thirty
(30) days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying the particular respects
in which the statement is claimed to be incorrect. If such dispute is not
settled by agreement, either party may submit the dispute to arbitration as
provided in Article 36. Pending the determination of such dispute by agreement
or arbitration as aforesaid, Tenant shall, within ten (10) business days after
receipt of such statement, pay the Additional Charges in accordance with
Landlord's statement, without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay to Tenant
the amount of Tenant's overpayment resulting from compliance with Landlord's
statement.
ARTICLE 7 - COMMON AREAS
7.01. Subject to the provisions of Section 5.04, Landlord will operate,
manage, equip, light, repair and maintain, or cause to be operated, managed,
equipped, lighted, repaired and maintained, the Common Areas for their intended
purposes. Landlord reserves the right, at any time and from time to time, to
construct within the Common Areas kiosks, fountains, aquariums, planters, pools
and sculptures, and to install vending machines, telephone booths, benches and
the like, provided same shall not unreasonably block or interfere with Tenant's
means of ingress or egress to and from the Demised Premises and provided the
same shall not be inconsistent with the operation of the building as a Class B
of the building.
7.02. Tenant and its subtenants and concessionaires, and their respective
officers, employees, agents, customers and invitees, shall have the non-
exclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant such right, but subject to the Rules and
Regulations, to use the Common Areas. Landlord reserves the right, at any time
and from time to time, to close temporarily all or any portions of the Common
Areas when in Landlord's reasonable judgment any such closing is necessary or
desirable (a) to make repairs or changes or to effect construction, (b) to
prevent the acquisition of public rights in such areas, (c) to discourage
unauthorized parking, or (d) to protect or preserve natural persons or
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property. Landlord may do such other acts in and to the Common Areas as in its
judgment may be desirable to improve or maintain same.
7.03. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents.
ARTICLE 8 - SECURITY
8.01. Tenant has deposited with Landlord the Security Deposit as security
for the full and faithful payment and performance by Tenant of Tenant's
obligations under this Lease. If Tenant defaults in the full and prompt payment
and performance of any of its obligations under this Lease, including, without
limitation, the payment of Rent, Landlord may use, apply or retain the whole or
any part of the Security Deposit to the extent required for the payment of any
Rent or any other sums as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of Tenant's obligations under this Lease, including, without
limitation, any damages or deficiency in the reletting of the Demised Premises,
whether such damages or deficiency accrue before or after summary proceedings or
other re-entry by Landlord. If Landlord shall so use, apply or retain the whole
or any part of the security, Tenant shall upon demand immediately deposit with
Landlord a sum equal to the amount so used, applied and retained, as security as
aforesaid. If Tenant shall fully and faithfully pay and perform all of Tenant's
obligations under this Lease, the Security Deposit or any balance thereof to
which Tenant is entitled shall be returned or paid over to Tenant after the date
on which this Lease s II expire or sooner end or terminate, and after delivery
to Landlord of entire possession of the Demised Premises. In the event of any
sale or leasing of the Land, Landlord shall have the right to transfer the
security to which Tenant is entitled to the vendee or lessee and upon receipt of
written acknowledgement by Tenant from such vendee or lessee of the assumption
of Landlord's obligations under the Lease, including acknowledgement of the
receipt of Security Deposits. Landlord shall thereupon be released by Tenant
from all liability for the return or payment thereof, and Tenant shall look
solely to the new landlord for the return or payment of the same; and the
provisions hereof shall apply to every transfer or assignment made of the same
to a new landlord. Tenant shall not assign or encumber or attempt to assign or
encumber the monies deposited herein as security, and neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases shall also cover
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other lands and/or buildings, to each and every advance made or hereafter to be
made under such Mortgages, and to all renewals, modifications, replacements and
extensions of such leases and such Mortgages and spreaders and consolidations of
such Mortgages. The provisions of this Section 9.01 shall be self-operative and
no further instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instruments within 10 business days
after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, coupled with an interest to execute and
deliver any such instruments for and on behalf of Tenant.
9.02. 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 Superior Mortgagee and each Superior Lessor 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 Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, 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 Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be liable
for the return of any Security Deposit, in whole or in part, to the extent that
same is not paid over to the Successor Landlord; or (d) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent or Additional Charges, unless such modification or prepayment
shall have been expressly approved in writing by the Superior Lessor of the
Superior Lease or the Mortgagee of the Superior Mortgage through or by reason of
which the Successor Landlord shall have succeeded to the rights of Landlord
under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall require
any modification(s) of this Lease, Tenant shall promptly execute and deliver to
Landlord such
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instruments effecting such modification(s) as Landlord shall request, provided
that such modification(s) do not adversely affect in any material respect any of
Tenant's rights under this Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of Tenant's
other obligations hereunder, Tenant shall peaceably and quietly have, hold and
enjoy the Demised remises without hindrance, ejection or molestation by Landlord
or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed.
11.02. If at anytime (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling, the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such partnership, as
the case may be, immediately before such transfer, ceasing to own a majority of
such shares of voting stock or general partner's interest, as the case may be,
except as the result of transfers by inheritance, shall be deemed to be an
assignment of this Lease as to which Landlord's consent shall have been
required, and in any such event Tenant shall notify Landlord. The provisions of
this Section 11.02 shall not be applicable to any corporation all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the National Association
of Securities Dealers through its automated system for reporting quotations and
shall not apply to transactions with a corporation into or with which the then
Tenant is merged or consolidated or to which substantially all of the then
Tenant's assets are transferred or to any corporation which controls or is
controlled by the then Tenant or is under common control with the then Tenant,
provided that in any of such events (i) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the greater of(l) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, or (2) the net worth of the original Tenant
on the date of this Lease, and (ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. For the purposes of this Section, the
words "voting stock" shall refer to shares of stock regularly entitled to vote
for the election of directors of the corporation. Landlord shall have the right
at any time and from time to time during the Term to
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the stock record books of the corporation to which the provisions of this
Section 11.02 apply, and Tenant will produce the same on request of Landlord.
11.03 If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with Landlord's
consent pursuant to Section 11.01 or without Landlord's consent if permitted by
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee shall assume
Tenant's obligations under this Lease and whereby the assignee shall agree that
all of the provisions in this Article 11 shall, notwithstanding such assignment
or transfer, continue to be binding upon it in respect to all future assignments
and transfers. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent by Landlord from an assignee, transferee, or any other party, the original
Tenant and any other person)s) who at any time was or were Tenant shall remain
fully liable for the payment of the Rent and for Tenant's other obligations
under this Lease.
11.05. The liability of the original named Tenant and any other Person(s)
(including but not limited to any Guarantor) who at any time are or become
responsible for Tenant's obligations under this Lease shall not be discharged,
released or impaired by any agreement extending the time of, or modifying any of
the terms or obligations under this Lease, or by any waiver or failure of
Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others. Notwithstanding anything contained in this
Lease to the contrary, Landlord shall have the absolute right to withhold its
consent to an assignment or subletting to a Person who is otherwise a tenant or
occupant of the Building, or of a building
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owned or managed by Landlord or its affiliated entities.
11.07. Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Section 8.01.
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall reasonably require. If Tenant does not consummate the subject transaction
within 60 days after the last day on which Landlord might have so terminated
this Lease as a result of such transaction, Tenant shall again be required to
comply with the provisions of this Section 11.08 in connection with any such
transaction as if the notice by Tenant referred to above in this Section 11.08
had not been given. Notwithstanding anything contained in this Lease to the
contrary, Landlord shall not be obligated to entertain or consider any request
by Tenant to consent to any proposed assignment of this Lease or sublet of all
or any part of the Demised Premises unless each request by Tenant is accompanied
by a non-refundable fee payable to Landlord in the amount of One Thousand
Dollars ($1,000.00) to cover Landlord's administrative, legal, and other costs
and expenses incurred in processing each of Tenant's requests. Neither Tenant's
payment nor Landlord's acceptance of the foregoing fee shall be construed to
impose any obligation whatsoever upon Landlord to consent to Tenant's request.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
reasonable costs and expenses, plus all fines, penalties and damages which may
be imposed upon Landlord or any Superior Lessor by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the provisions of
this Section 12.01. However, Tenant need not comply with any such law or
requirement of any public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good
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faith, the validity, or applicability to the Demised Premises, of any Legal
Requirement, provided that (a) Landlord shall not be subject to criminal penalty
or to prosecution for a crime, and neither the Demised Premises nor any part
thereof shall be subject to being condemned or vacated, by reason of non-
compliance or otherwise by reason of such contest; (b) before the commencement
of such contest, Tenant shall furnish to Landlord either (i) the bond of a
surety company satisfactory to Landlord, which bond shall be, as to its
provisions and form, satisfactory to Landlord, and shall be in an amount at
least equal to 125% of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for damages, interest, penalties and expenses
(including reasonable attorneys' fees and expenses), resulting from or incurred
in connection with such contest or non-compliance, or (ii) other security in
place of such bond satisfactory to Landlord, (c) such non-compliance or contest
shall not constitute or result in any violation of any Superior Lease or
Superior Mortgage, or if any such Superior Lease and/or Superior Mortgage shall
permit such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; and (d) Tenant shall keep Landlord
advised as to the status of such proceedings. Without limiting the application
of the above, Landlord shall be deemed subject to prosecution for a crime if
Landlord, or its managing agent, or any officer, director, partner, shareholder
or employee of Landlord or its managing agent, as an individual, is charged with
a crime of any kind or degree whatsoever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or its managing
agent, or such officer, director, partner, shareholder or employee of Landlord
or its managing agent (as the case may be) is required to plead or answer
thereto. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall not file any Real Estate Tax Appeal with respect to the Land,
Building or the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk
insurance in respect of the Building and other improvements on the Land normally
covered by such insurance (except for the property Tenant is required to cover
with insurance under Section 13.02 and similar property of other tenants and
occupants of the Building or buildings and other improvements which are on land
neither owned by nor leased to Landlord) for the benefit of Landlord, any
Superior Lessors, any Superior Mortgagees and any other parties Landlord may at
any time and from time to time designate, as their interests may appear, but not
for the benefit of Tenant, and shall maintain rent insurance as required by any
Superior Lessor or any Superior Mortgagee. The All Risk insurance will be in
the amounts required by any Superior Lessor or any Superior Mortgagee but not
less than the amount sufficient to avoid the effect of the co-insurance
provisions of the applicable policy or policies. Landlord may also maintain any
other forms and types of insurance which Landlord shall deem reasonable in
respect of the Building and Land. Landlord shall have the right to provide any
insurance maintained or caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business
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therein, having not less than a $2,000,000.00 combined single limit per
occurrence for bodily injury or death to any one person and for bodily injury or
death to any number of persons in any one occurrence, and for property damage,
including water damage and sprinkler leakage legal liability (coverage to
include but not be limited to (i) premises operation, completed operations,
broad form contractual liability and product liability, (ii) comprehensive
automobile, truck and vehicle liability insurance covering all owned, hired and
non-owned vehicles used by the contractor(s) in connection with their work and
any loading of such vehicles, with limits as stated above and (iii) worker's
compensation, employers liability and occupational disease insurance as required
by statutes, but in any event not less than $500,000.00 for Coverage B covering
all damages and injuries arising from each accident or occupational disease);
and (b) All Risk insurance in respect of Tenant's stock in trade, fixtures,
furniture, furnishings, removable floor coverings, equipment, signs and all
other property of Tenant in the Demised Premises in any amounts required by any
Superior Lessor or any Superior Mortgagee but not less than eighty percent (80%)
of the full insurable value of the property covered and not less than the amount
sufficient to avoid the effect of the co-insurance provisions of the applicable
policy or policies, and (c) such other insurance as is required for compliance
with the Insurance Requirements. Landlord may at any time and from time to time
require that the limits for the comprehensive general public liability insurance
to be maintained by Tenant be increased to the limits that new tenants in the
Building are required by Landlord to maintain. Tenant shall deliver to Landlord
and any additional named insured(s) certificates for such fully paid-for
policies upon execution hereof. Tenant shall procure and pay for renewals of
such insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any additional insured(s) certificates therefor at least
thirty (30) days before the expiration of any existing policy. All such policies
shall be issued by companies of recognized responsibility, having a Bests Key
Rating Guide of not less than A, Class VII, licensed to do business in New
Jersey, and all such policies shall contain a provision whereby the Landlord and
any additional insured(s) are given at least thirty (30) days' prior written
notice of such cancellation. The certificates of insurance to be delivered to
Landlord by Tenant shall name Landlord as an additional insured and, at
Landlord's request, shall also name any Superior Lessors or Superior Mortgagees
as additional insureds, and the following phrase must be typed on the
certificate of insurance: "Passaic Investment LLC, a New Mexico limited
liability company, Sixty-Five Willowbrook Investment LLC, a New Mexico limited
liability company, and Wayne Investment LLC, a New Mexico limited liability
company, as Tenants-in-Common , and its respective subsidiaries, affiliates,
associates, joint ventures, and partnerships, are hereby named as additional
insureds as their interests may appear (and if Landlord has so requested, Tenant
shall include any Superior Lessors and Superior Mortgagees as additional
insured(s)). It is intended for this insurance to be primary and non-
contributing." Tenant shall give Landlord at least thirty (30) days' prior
written notice that any such policy is being canceled or replaced.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect of the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a
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breach of the provisions of this Section 13.03, in addition to all other rights
and remedies of Landlord hereunder, Tenant shall (a) indemnify Landlord and the
Superior Lessors and hold Landlord and the Superior Lessors harmless from and
against any loss which would have been covered by insurance which shall have
become void or suspended because of such breach by Tenant and (b) pay to
Landlord any and all increases of premiums on any insurance, including, without
limitation, rent insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term or during the period of time, if any, prior to the Commencement Date
that Tenant may have been given access to the Demised Premises; (b) any
negligent act, omission or negligence of Tenant or any of its subtenants or
licensees or its or their partners, joint venturers, directors, officers,
agents, employees or contractors; (c) any accident, injury or damage whatever
(unless caused solely by Landlord's negligence) occurring in the Demised
Premises; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease; together with all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorneys' fees and expenses. In case any action or
proceeding is brought against Landlord and/or any Superior Lessor and/or its or
their partners, joint venturers, directors, officers, agents and/or employees by
reason of any such claim, Tenant, upon notice from Landlord or such Superior
Lessor, shall resist and defend such action or proceeding by counsel reasonably
satisfactory to Landlord.
13.05. Neither Landlord nor any Superior Lessor shall be liable or
responsible for, and Tenant hereby releases Landlord and each Superior Lessor
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 Demised Premises or to
Tenant's business irrespective of the cause of such injury, loss or damage, 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 or any
Superior Lessor a clause or endorsement whereby the insurer waives any rights of
subrogation against Landlord and such Superior Lessors 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.
ARTICLE 14- RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, or the
Common Areas, and which
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do not unreasonably affect the conduct of Tenant's business in the Demised
Premises; provided, however, that in case of any conflict or inconsistency
between the provisions of this Lease and any of the Rules and Regulations, the
provisions of this Lease shall control. Nothing in this Lease contained shall be
construed to impose upon Landlord any duty or obligation to enforce the Rules
and Regulations against any other tenant or any employees or agents of any other
tenant, and Landlord shall not be liable to Tenant for violation of the Rules
and Regulations by any other tenant or its employees, agents, invitees or
licensees.
ARTICLE 15 - ALTERATIONS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs, or floors
thereof, or change the exterior color or architectural treatment of the Demised
Premises, without on each occasion first obtaining the consent of Landlord,
which shall not be unreasonably withheld or delayed. Tenant shall be allowed to
make alterations of less than $1,000.00 (One Thousand Dollars) in total cost
(excluding structural and mechanical alterations) without the consent of
Landlord. Tenant shall submit to Landlord plans and specifications for such
work at the time Landlord's consent is sought. Tenant shall pay to Landlord
upon demand the reasonable cost and expense of Landlord in (a) reviewing said
plans and specifications and (b) inspecting the alterations to determine whether
the same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees of any architect or engineer employed by Landlord
for such purpose. Before proceeding with any permitted alteration which will
cost more than $50,000 (exclusive of the costs of decorating work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord either (i) a
performance bond and a labor and materials payment bond (issued by a corporate
surety licensed to do business in New Jersey), each in an amount equal to 125%
of such estimated cost and in form satisfactory to Landlord, or (ii) such other
security as shall be satisfactory to Landlord. Tenant shall fully and promptly
comply with and observe the Rules and Regulations then in force in respect of
the making of alterations. Any review or approval by Landlord of any plans
and/or specifications with respect to any alterations is solely for Landlord's
benefit, and without any representation or warranty whatsoever to Tenant in
respect of the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord; provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall
be made in such manner as not to unreasonably interfere with or delay and as not
to impose any
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additional expense upon Landlord in the construction, maintenance, repair or
operation of the Building; and if any such additional expense shall be incurred
by Landlord as a result of Tenant's making of any alterations, Tenant shall pay
any such additional expense upon demand. Throughout the making of alterations,
Tenant shall carry, or cause to be carried, worker's compensation insurance in
statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
and its managing agent and any Superior Lessor whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of alterations and, on request, at reasonable intervals thereafter
during the making of alterations.
ARTICLE 16 - LANDLORD'S AND TENANTS PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof, reasonable wear and tear accented. Any equipment or other property for
which Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord, shall not be considered as the Tenant's Property and shall be deemed
the property of Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, the
Building and the Common Areas resulting from any installation and/or-removal of
the Tenant's Property, reasonable wear and tear accepted. Any items of the
Tenant's Property which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned, and
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in such case such items may be retained by Landlord as its property or disposed
of by Landlord, without accountability, in such manner as Landlord shall
determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein. Tenant shall be responsible
for all repairs, interior and exterior, structural and nonstructural, ordinary
and extraordinary, in and to the Demised Premises, and the Building (including
the facilities and systems thereof) and the Common Areas the need for which
arises out of (a) the performance or existence of the Tenant's Work or
alterations, (b) the installation, use or operation of the Tenant's Property in
the Demised Premises, (c) the moving of the Tenant's Property in or out of the
Building, or (d) the act, omission, misuse or neglect of Tenant or any of its
subtenants or its or their employees, agents, contractors or invitees. Tenant
shall promptly replace or repair to reasonable satisfaction of Landlord all
scratched, damaged or broken doors and glass in and about the Demised Premises
and shall be responsible for all repairs, maintenance and replacement of wall
and floor coverings in the Demised Premises and for the repair and maintenance
of all sanitary and electrical fixtures and equipment therein. Tenant shall
promptly make all repairs in or to the Demised Premises for which Tenant is
responsible, and any repairs required to be made by Tenant to the mechanical,
electrical, sanitary, heating, ventilating, air-conditioning or other systems of
the Building shall be performed only by contractor(s) designated by Landlord.
Any other repairs in or to the Building and the facilities and systems thereof
for which Tenant is responsible shall be performed by Landlord at Tenant's
expense; but Landlord may, at its option, before commencing any such work or at
any time thereafter, require Tenant to furnish to Landlord such security, in
form (including, without limitation, a bond issued by a corporate surety
licensed to do business in New Jersey) and amount, as Landlord shall deem
necessary to assure the payment for such work by Tenant. Tenant shall not
permit or suffer the overloading of the floors of the Demised Premises beyond
eighty (80) pounds per square foot.
17.02. So long as Tenant is not in default under this Lease, Landlord
shall be responsible for all repairs and maintenance in and to the Building
(including the facilities and systems thereof), except for those repairs and
maintenance for which Tenant is responsible pursuant to any of the provisions of
this Lease.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
ARTICLE 18 - ELECTRIC ENERGY
18.01. Tenant shall purchase the electric energy required by it in the
Demised Premises
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at its own expense on a direct-metered basis from the public utility servicing
the Building, and Landlord shall permit the risers, conduits and feeders in the
Building, to the extent available, suitable and safely capable, to be used for
the purpose of transmitting such electric energy to the Demised Premises.
Landlord shall not be liable for any failure, inadequacy or defect in the
character or supply of electric current furnished to the Demised Premises. If
Landlord is permitted by law to provide electric energy to the Demised Premises
by re-registering meters or otherwise and to collect any charges for electric
energy, Landlord shall have the right to do so, in which event Tenant shall pay
to Landlord upon receipt of bills therefor charges for electric energy provided
the rates for such electric energy shall not be more than the rates Tenant would
be charged for electric energy if furnished directly to Tenant by the public
utility which would otherwise have furnished electric energy. Until such
separate metering of the electric usage of the Demised Premises is accomplished,
Tenant shall pay Landlord One Dollar and Twenty-five Cents ($1.25) per square
foot of Floor Space for electric service.
18.02. Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld or delayed), connect
any fixtures, appliances or equipment to the Building's electric distribution
system or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - HEAT, VENTILATION AND AIR-CONDITIONING
19.01. So long as Tenant is not in default under this Lease, Landlord
shall maintain and operate the heating, ventilating and air-conditioning systems
("HVAC") serving the Demised Premises, and shall furnish HVAC in the Demised
Premises as may be reasonably required (except as otherwise provided in this
Lease and except for any special requirements of Tenant arising from its
particular use of the Demised Premises) for reasonably comfortable occupancy of
the Demised Premises, during Business Hours on Business Days within the limits
prescribed by the Legal Requirements. If Tenant shall require HVAC at any other
time, Landlord shall furnish such service for such times upon not less than six
(6) hours advance notice from Tenant, and Tenant shall pay to Landlord upon
demand Landlord's then established charges therefor.
19.02. The performance by Landlord of its obligation under Section 19.01
in respect of HVAC is conditioned on the connected electric load within the
Demised Premises not exceeding three and one-half (3 1/2) watts per usable
square foot in the Demised Premises and the occupancy of the Demised Premises
not exceeding one (1) person for each one hundred and fifty (150) usable square
feet. Use of the Demised Premises, or any part thereof in a manner exceeding
the HVAC design conditions (including occupancy and connected electrical load),
or rearrangement of partitioning which interferes with normal operation of the
HVAC in the Demised Premises, or the use of computer or data processing machines
or other machines or
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equipment, may require changes in the HVAC systems servicing the Demised
Premises, in order to provide comfortable occupancy. Such changes, so
occasioned, shall be made by Tenant, at its expense, as alterations in
accordance with the provisions of Article 15, but only to the extent permitted
and upon the conditions set forth in Article 15. Tenant shall have the right,
with Landlord consent not unreasonably withheld or delayed, to place a "plenum"
or "closet unit" HVAC within the leased space. All costs and approvals will be
paid by Tenant. Any and all ducting, shafting or placing of HVAC shall not
interfere with the building system currently provided by Landlord. Any HVAC
electric usage will be billed directly to Tenant on a direct meter basis or an
amount agreed to by Landlord and Tenant. Tenant will be obligated to insure that
electrical configuration will support the additional unit.
ARTICLE 20 - OTHER SERVICES; SERVICE INTERRUPTION
20.01. Landlord shall provide elevator service to the Demised Premises
during Business Hours on Business Days, and Landlord shall have at least one (1)
elevator subject to call at all other times. The use of the elevators shall be
subject to the Rules and Regulations.
20.02. Landlord shall cause the Demised Premises, including the exterior
and the interior of the windows thereof, to be cleaned in a manner standard to
the Building and in accordance with the standards set forth in Exhibit E.
Tenant shall pay to Landlord on demand the costs incurred by Landlord for (a)
extra cleaning work in the Demised Premises required because of (i) misuse or
neglect on the part of Tenant or its subtenants or its or their employees or
visitors, (ii) use of portions of the Demised Premises for preparation, serving,
consumption of food or beverages, training rooms, data processing or reproducing
operations, private lavatories or toilets or other special purposes requiring
greater or more difficult cleaning work than office areas, (iii) interior glass
partitions or unusual quantity of interior glass surfaces, and (iv) non-building
standard materials or finishes installed by Tenant or at its request, and (b)
removal from the Demised Premises and the Building of any refuse and rubbish of
Tenant in excess of that ordinarily accumulated in business office occupancy or
at times other than Landlord's standard cleaning times, and (c) the use of the
Demised Premises by Tenant other than during Business Hours on Business Days.
20.03. Landlord, its cleaning contractor and their employees shall have
access to the Demised Premises after 5:30 P.M. and before 8:00 A.M. and shall
have the right to use, without charge therefor, all light, power and water in
the Demised Premises reasonably required to clean the Demised Premises as
required under Section 20.02.
20.04. Landlord shall furnish adequate hot and cold water to the Demised
Premises for drinking, lavatory and cleaning purposes. If Tenant uses water for
any other purpose Landlord may install and maintain, at Tenant's expense, meters
to measure Tenant's consumption of cold water and/or hot water for such other
purpose. Tenant shall reimburse Landlord for the quantities of cold water and
hot water shown on such meters on demand.
ARTICLE 21 - ACCESS, CHANGES AND NAME
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21.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core corridor
wails and doors and any core corridor entrance, any terraces or roofs adjacent
to the Demised Premises, and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities and the use thereof, as well as
access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided such are properly
enclosed.
21.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at any time or times (a) to examine the Demised
Premises and to show them to actual and prospective Superior Lessors, Superior
Mortgagees, or prospective purchasers of the Building, and (b) to make such
repairs, alterations, additions and improvements in or to the Demised Premises
and/or in or to the Building or its facilities and equipment as Landlord is
required or desires to make. Landlord shall be allowed to take all materials
into and upon the Demised Premises that may be required in connection therewith,
without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. During the period of fifteen (15) months prior to the
Expiration Date, Landlord and its agents may exhibit the Demised Premises to
prospective tenants.
21.03. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building or the
Common Areas, other than the Demised Premises, is temporarily or permanently
closed or inoperable, the same shall not be deemed a constructive eviction and
shall not result in any reduction or diminution of Tenant's obligations under
this Lease.
21.04. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Demised Premises, Landlord
may, without notice to Tenant, immediately enter the Demised Premises and alter,
renovate and decorate the same, without liability to Tenant and without reducing
or otherwise affecting Tenant's obligations hereunder.
21.05. Landlord reserves the right, at any time and from time to time, to
make such changes, alterations, additions and improvements in or to the Building
and the fixtures and equipment thereof as Landlord shall deem necessary or
desirable.
21.06. Landlord may adopt any name for the Building. Landlord reserves
the right to change the name and/or address of the Building at any time.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
22.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to
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any liability under any mechanic's or other lien law. If any mechanic's or other
lien or any notice of intention to file a lien is filed against the Land, or any
part thereof; or the Demised Premises, or any part thereof, for any work, labor,
service or materials claimed to have been performed or furnished for or on
behalf of Tenant or anyone holding any part of the Demised Premises through or
under Tenant, Tenant shall cause the same to be canceled and discharged of
record by payment, bond or order of a court of competent jurisdiction within
fifteen (15) days after notice by Landlord to Tenant.
ARTICLE 23 - NON-LIABILITY AND INDEMNIFICATION
23.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the willful misconduct or negligence of Landlord,
its agents, servants or employees in the operation or maintenance of the Land or
Building without contributory' negligence on the part of Tenant or any of its
subtenants or licensees or its or their employees, agents or contractors.
Further, neither Landlord nor any partner, joint venturer, director, officer,
agent, servant or employee of Landlord shall be liable (a) for any such damage
caused by other tenants or Persons in, upon or about the Land or Building, or
caused by operations in construction of any private, public or quasi-public
work; or (b) even if negligent, for consequential damages arising out of any
loss of use of the Demised Premises or any equipment or facilities therein by
Tenant or any Person claiming through or under Tenant.
23.02. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term or during the period of time, if any, prior to the Commencement Date
that Tenant may have been given access to the Demised Premises; (b) any act,
omission or negligence of Tenant or any of its subtenants or licensees or its or
their partners, joint venturers, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
by Landlord's willful misconduct or negligence) occurring in the Demised
Premises; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease; together with all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses. In case of any action or
proceeding is brought against Landlord and/or any Superior Lessor and/or its or
their partners, joint venturers, directors, officers, agents and/or employees by
reason of any such claim, Tenant, upon notice from Landlord or such Superior
Lessor, shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Landlord).
23.03. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or
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refinancing thereof) in the event of any claim against Landlord arising out of
or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas, and Tenant agrees that
the liability of Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas shall be limited to such estate and property of Landlord (or
sale proceeds). No other properties or assets of Landlord or any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgment (or other judicial process) or for the satisfaction of any other
remedy of Tenant arising out of; or in connection with, this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Landlord's attorneys. Tenant hereby waives the right of specific performance
and any other remedy allowed in equity if specific performance or such other
remedy could result in any liability of Landlord for the payment of money to
Tenant, or to any court or governmental authority (by way of fines or otherwise)
for Landlord's failure or refusal to observe a judicial decree or determination,
or to any third party.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 24 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
24.02. Subject to the provisions of Section 24.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable; provided, however, should
Tenant reoccupy a portion of the Demised Premises during the period the repair
or restoration work is taking place and prior to the date that the Demised
Premises are substantially repaired or made tenantable the Rent allocable to
such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
24.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or
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restoration requires the expenditure, as estimated by a reputable contractor or
architect designated by Landlord, of more than twenty percent (20%) (or ten
percent [10%] if such casualty occurs during the last two [2] years of the Term)
of the full insurable value of the Building immediately prior to the casualty,
or (c) the Building shall be damaged or destroyed by fire or other casualty
(whether or not the Demised Premises are damaged or destroyed) and either the
loss shall not be covered by Landlord's insurance or the net insurance proceeds
(after deducting all expenses in connection with obtaining such proceeds) shall,
in the estimation of a reputable contractor or architect designated by Landlord
be insufficient to pay for the repair or restoration work, then in either such
case Landlord may terminate this Lease by giving Tenant notice to such effect
within ninety (90) days after the date of the fire or other casualty. In the
event the Demised Premises are damaged or destroyed to such an extent that such
are untenantable, Landlord shall use reasonable efforts to relocate Tenant to
other, reasonably suitable space within the Property during the period of repair
or restoration, in which case Tenant will pay rent for such space in accordance
with the terms of the Lease. If, (i.) in the estimation of a reputable
contractor or architect reasonably approved by Landlord, the Demised Premises
are damaged or destroyed to such an extent that Tenant may not reasonably expect
to occupy the Demised Premises within one-hundred eighty (180) days after the
date of the fire or other casualty; and (ii.) Landlord is unable to relocate
Tenant to other, reasonably suitable space within the Property, Tenant may
terminate this Lease by giving Landlord notice to such effect within sixty (60)
days after the date of the fire or other casualty.
24.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 24.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as not unreasonably to interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Business Hours on Business Days.
24.05. Notwithstanding any of the foregoing provisions of this Article 24,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Demised Premises or the Building by fire or other casualty,
or (b)the Demised Premises or the Building shall be damaged or destroyed or
rendered completely or partially untenantable on account of fire or other
casualty, then, without prejudice to any other remedies which may be available
against Tenant, there shall be no abatement or reduction of the Rent. Further,
nothing contained in this Article 24 shall relieve Tenant from any liability
that may exist as a result of any damage or destruction by fire or other
casualty.
24.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
24.07. The provisions of this Article 24 shall be deemed an express
agreement governing
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any case of damage or destruction of the Demised Premises and/or Building by
fire or other casualty, and any law providing for such a contingency in the
absence of an express agreement, now or hereafter in force, shall have no
application in such case.
ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
Demised Premises shall be so taken or conveyed, this Lease shall terminate only
in respect of the part so taken or conveyed as of the day possession shall be
taken by such authority. If more than 25% of the Floor Space of the Demised
Premises shall be so taken or conveyed, this Lease shall terminate only in
respect of the part so taken or conveyed as of the day possession shall be taken
by such authority, but either party shall have the right to terminate this Lease
upon notice given to the other party within 30 days after such taking
possession. If more than 25% of the Floor Space of the Building shall be so
taken or conveyed, Landlord may, by notice to Tenant, terminate this Lease as of
the day possession shall be taken. If so much of the parking facilities shall
be so taken or conveyed that the number of parking spaces necessary, in
Landlord's judgment, for the continued operation of the Building shall not be
available, Landlord shall, by notice to Tenant, terminate this Lease as of the
day possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
Floor Space of the Demised Premises. Except as specifically provided herein, in
the event of any such taking or conveyance there shall be no reduction in Rent.
If this Lease shall continue in effect, Landlord shall, at its expense, but
shall be obligated only to the extent of the net award or other compensation
(after deducting all expenses in connection with obtaining same) available to
Landlord for the improvements taken or conveyed (excluding any award or other
compensation for land or for the unexpired portion of the term of any Superior
Lease), make all necessary alterations so as to constitute the remaining
Building a complete architectural and tenantable unit, except for the Tenant's
Property, and Tenant shall make all alterations or replacements to the Tenant's
Property and decorations in the Demised Premises. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building, the Demised Premised or otherwise, shall be the property of Landlord,
and Tenant hereby assigns to Landlord all of Tenant's right, title and interest
in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's Property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's Property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
Landlord.
25.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that
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portion of the award or payment for such taking which represents compensation
for the use and occupancy of the Demised Premises, for the taking of the
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of restoration
of the Demised Premises. This Lease shall be and remain unaffected by such
taking and Tenant shall continue to be responsible for all of its obligations
hereunder insofar as such obligations are not affected by such taking and shall
continue to pay the Rent in full when due. If the period of temporary use or
occupancy shall extend beyond the Expiration Date, that part of the award or
payment which represents compensation for the use and occupancy of the Demised
Premises (or a part thereof) shall be divided between Landlord and Tenant so
that Tenant shall receive (except as otherwise provided below) so much thereof
as represents compensation for the period up to and including the Expiration
Date and Landlord shall receive so much thereof as represents compensation for
the period after the Expiration Date. All monies to be paid to Tenant as, or as
part of, an award or payment for temporary use and occupancy for a period beyond
the date to which the Rent has been paid shall be received, held and applied by
the first Superior Mortgagee (or if there is no Superior Mortgagee, by Landlord
as a trust fund) for payment of the Rent becoming due hereunder.
ARTICLE 26 - SURRENDER
26.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's Property therefrom except as otherwise
expressly provided in this Lease.
26.02. If Tenant remains in possession of the Demised Premises after rue
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises at the sufferance of Landlord subject to all of the provisions of this
Lease, except that the monthly Fixed Rent shall be 150% the Fixed Rent in
effect during the last month of the Term.
26.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title II of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within 30 days after entry, or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator,
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liquidator or similar official in any federal, state or foreign judicial or
nonjudicial proceeding, to hold, administer and/or liquidate all or
substantially all of its assets, and such appointment shall not have been
revoked, terminated, stayed or vacated and such official discharged of his
duties within 30 days of his appointment, then Landlord, at any time after the
occurrence of any such event, may give Tenant a notice of intention to end the
Term at the expiration of five (5) days from the date of service of such notice
of intention, and upon the expiration of said five (5) day period, whether or
not the Term shall theretofore have commenced, this Lease shall terminate with
the same effect as if that day were the expiration date of this Lease, but
Tenant shall remain liable for damages as provided in Article 29.
27.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, or (b) if Tenant shall, whether
by action or inaction, be in default of any of its obligations under this Lease
(other than a default in the payment of Rent) and such default shall continue
and not be remedied within fifteen (15) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which cannot
with due diligence be cured within a period of fifteen (15) days and the
continuance of which for the period required for cure will not subject Landlord
or any Superior Lessor to prosecution for a crime (as more particularly
described in the last sentence of Section 12.02) or termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
said fifteen (15) day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (ii) duly commence within said fifteen
(15) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease would, by
operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Article 11, or
(d) if Tenant shall vacate or abandon the Demised Premises, or (e) if there
shall be any default by Tenant (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Tenant) under any
other lease with Landlord (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Landlord) which
shall not be remedied within the applicable grace period, if any, provided
therefor under such other lease, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of five (5)
business days from the date of the service of such notice of intention, and upon
the expiration of said five (5) business days, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 29.
ARTICLE 28 - RE-ENTRY BY LANDLORD
28.01. If Tenant shall default in the payment of any Rent, or if this
Lease shall terminate as provided in Article 27, Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
Person therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises.
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The word re-enter," as used herein, is not restricted to its technical legal
meaning. If this Lease is terminated under the provisions of Article 27, or if
Landlord shall re-enter the Demised Premises under the provisions of this
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceedings or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Rent payable up to the time of such termination of
this Lease, or of such recovery of possession of the Demised Premises by
Landlord, as the ease may be, and shall also pay to Landlord damages as provided
in Article 29.
28.02. In the vent of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
28.03. If this Lease shall terminate under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
Advance Rent, security or otherwise, but such monies shall be credited by
Landlord against any Rent due from Tenant at the time of such termination or re-
entry or, at Landlord's option, against any damages payable by Tenant under
Article 29 or pursuant to law.
ARTICLE 29 - DAMAGES
29.01. If this Lease is terminated under the provisions of Article 27, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
28, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at the
time of any such reentry by Landlord, as the case may be, represents the then
value of the excess, if any, of (i) the aggregate amount of the Rent which would
have been payable by Tenant (conclusively presuming the average monthly
Additional Charges to be the same as were the average monthly Additional Charges
payable for the year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) for the period commencing with such earlier termination of this Lease
or the date of any such re-entry, as the case may be, and ending with the
Expiration Date, over (ii) the aggregate rental value of the Demised Premises
for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had Landlord
not so re-entered the
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Demised Premises, payable upon the due dates therefor specified herein following
such termination or such re-entry and until the Expiration Date, provided,
however, that if Landlord shall relet the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the expenses incurred
or paid by Landlord in terminating this Lease or in re-entering the Demised
Premises and in securing possession thereof, as well as the expenses of
reletting, including, without limitation, altering and preparing the Demised
Premises for new tenants, brokers' commissions, legal fees, and all other
expenses properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a period
shorter or longer than the period ending on the Expiration Date; but in no event
shall Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any
suit for the collection of damages pursuant to this subsection (b) to a credit
in respect of any rents from a reletting, except to the extent that such net
rents are actually received by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such reletting and of the expenses of reletting; or
(c) a sum which at the time of such termination of this Lease or at the
time of any such reentry by Landlord, as the case may be, represents the
aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the same as
were the average monthly Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date; provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, legal fees, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom, it being understood that
any such reletting may be for a period shorter or longer than the period ending
on the Expiration Date; but in no event shall Landlord have to account to Tenant
for any rents in excess of the total damages recovered by Landlord hereunder,
nor shall Tenant be entitled in any suit for the collection of damages pursuant
to this subdivision (c) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received by Landlord. If
the Demised Premises or any part thereof should be relet in combination with
other space, then proper apportionment on a square foot basis shall be made of
the rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in
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any way whatsoever for its failure or refusal to relet the Demised Premises or
any part thereof, or if the Demised Premises or any part thereof are relet, for
its failure to collect the rent under such reletting, and no such refusal or
failure to relet or failure to collect rent shall release or affect Tenant's
liability for damages or otherwise under this Lease.
29.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 27, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages by reason of
the termination of this Lease or re-entry of the Demised Premises for the
default of Tenant under this Lease, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time, whether or not such amount be
greater than, equal to, or less than any of the sums referred to in Section
29.01.
29.03. In addition, if this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 29.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) business days of demand
therefor, the same shall bear interest at the Late Payment Rate or the maximum
rate permitted by law, whichever is less, from the due date thereof until paid,
and the amounts of such interest shall be Additional Charges hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have been
remedied within the applicable grace period, Landlord shall not be obligated to
furnish to Tenant or the Demised Premises any HVAC services outside of Business
Hours or Business Days, or any extra or additional cleaning services; and the
discontinuance of any one or more such services shall be without liability by
Landlord to Tenant and shall not reduce, diminish or otherwise affect any of
Tenant's covenants and obligations under this Lease.
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ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises.
ARTICLE 31 - NO WAIVERS
31.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 32 - CURING TENANTS DEFAULTS
32.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Tenant shall be allowed a
reasonable time to cure any default beyond said fifteen (15) days for those
issues not curable beyond the reasonable control of Tenant within fifteen (15)
days. In addition Tenant will use best efforts to cure and Tenant will keep
Landlord aware in writing of all progress in any circumstance of default not
curable within fifteen (15) days. As long as Tenant diligently pursues cure
than Tenant may have sixty (60) days to cure. Bills for any expenses incurred
by Landlord in connection with any such performance by it for the account of
Tenant, and bills for all costs, expenses and disbursements of every kind and
nature whatsoever, including reasonable attorneys' fees and expenses, involved
in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
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obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such reasonable cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Demised Premises after default by Tenant or upon the expiration of the Term
or sooner termination of this Lease, and interest on all sums advanced by
Landlord under this Article at the Late Payment Rate or the maximum rate
permitted by law, whichever is less, may be sent by Landlord to Tenant monthly,
or immediately, at Landlord's option, and such amounts shall be due and payable
in accordance with the terms of such bills.
ARTICLE 33 - BROKER
33.01. Tenant and Landlord mutually represents that no broker except the
Broker was instrumental in bringing about or consummating this Lease and that
Tenant had no conversations or negotiations with any broker except the Broker
concerning the leasing of the Demised Premises. Tenant and Landlord agrees to
indemnify and hold harmless each other against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by Tenant with any broker other
than the Broker. Landlord shall pay any brokerage commissions due the Broker
pursuant to a separate agreement between Landlord and the Broker.
ARTICLE 34 - NOTICES
34.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth (except that after the Commencement
Date, Tenant's address, unless Tenant shall give notice to the contrary, shall
be the Building) as to Landlord, to the attention of General Counsel with a
concurrent notice to the attention of Controller, and shall be deemed to have
been given, rendered or made on the second day after the day so mailed, unless
mailed outside the State of New Jersey, in which case it shall be deemed to have
been given, rendered or made on the third business day after the day so mailed.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, statements, demands, consents, approvals or other
communications intended for it. In addition, upon and to the extent requested
by Landlord, copies of notices shall be sent to the Superior Mortgagee.
ARTICLE 35 - ESTOPPEL CERTIFICATES
35.01. Each party shall, at any time and from time to time, as requested
by the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party a statement 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
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modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 36 - ARBITRATION
36.01. Landlord may at any time request arbitration, and Tenant may at any
time request arbitration, of any matter in dispute but only where arbitration is
expressly provided for in this Lease. The party requesting arbitration shall do
so by giving notice to that effect to the other party, specifying in said notice
the nature of the dispute, and said dispute shall be determined in Newark, New
Jersey, by a single arbitrator, in accordance with the rules then obtaining of
the American Arbitration Association (or any organization which is the successor
thereto). The award in such arbitration may be enforced on the application of
either party by the order or judgment of a court of competent jurisdiction. The
fees and expenses of any arbitration shall be borne by the parties equally, but
each party shall bear thc expense of its own attorneys and experts and the
additional expenses of presenting its own proof. If Tenant gives notice
requesting arbitration as provided in this Article, Tenant shall simultaneously
serve a duplicate of the notice on each Superior Mortgagee and Superior Lessor
whose name and address shall previously have been furnished to Tenant, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
ARTICLE 37 - MEMORANDUM OF LEASE
37.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such
memorandum of Lease shall pay all recording costs and expenses, including any
taxes that are due upon such recording.
ARTICLE 39 - MISCELLANEOUS
39.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth
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in this Lease or in any other written agreement(s) which may be made between the
parties concurrently with the execution and delivery of this Lease. All
understandings and agreements heretofore had between the parties are merged in
this Lease and any other written agreement(s) made concurrently herewith, which
alone fully and completely express the agreement of the parties and which are
entered into after full investigation. Neither party has relied upon any
statement or representation not embodied in this Lease or in any other written
agreement(s) made concurrently herewith. The submission of this Lease to Tenant
does not constitute by Landlord a reservation of, or an option to Tenant for,
the Demised Premises, or an offer to lease on the terms set forth herein and
this Lease shall become effective as a lease agreement only upon execution and
delivery thereof by Landlord and Tenant.
39.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
39.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
39.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights ii any
successor or assignee of Tenant and (b) the provisions of this Section 39.04
shall not be construed as modifying the conditions of limitation contained in
Article 27.
39.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delay. Except as expressly provided
to the contrary, the obligations of Tenant hereunder shall not be affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
(a) because Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease due to any of the matters set forth in the
first sentence of this Section 39.05, or (b) because of any failure or defect in
the supply, quality or character of electricity, water or any other utility or
service furnished to the Demised Premises for any reason beyond Landlord's
reasonable control.
39.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
39.07. If Tenant shall request Landlord's consent and Landlord shall fail
or refuse to give such consent, Tenant shall not be entitled to any damages for
any withholding by Landlord
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of its consent; Tenant's sole remedy shall be an action for specific performance
or injunction, and such remedy shall be available only in those cases where
Landlord has expressly agreed in writing not to unreasonably withhold or delay
its consent or where as a matter of law Landlord may not unreasonably withhold
its consent.
39.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the Person
causing or authorized to cause such excavation, license to enter the Demised
Premises for the purpose of performing such work as said Person shall reasonably
deem necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without any claim for
damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this Lease.
39.09. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
39.10. Tenant shall give prompt notice to Landlord of(a) any occurrence in
or about the Demised Premises for which Landlord might be liable, (b) any fire
or other casualty in the Demised Premises, (c) any damage to or defect in the
Demised Premises, including the fixtures and equipment thereof, for the repair
of which Landlord might be responsible, and (d) any damage to or defect in any
part of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in or passing through the
Demised Premises or any part thereof.
39.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Lease may be
brought in the Courts of the State of New Jersey, or the Federal District Court
for the District of New Jersey, as Landlord may elect. By execution and
delivery of this Lease, Tenant hereby irrevocably accepts and submits generally
and unconditionally for itself and with respect to its properties, to the
jurisdiction of any such court in any such action or proceeding, and hereby
waives in the case of any such action or proceeding brought in the courts of the
State of New Jersey, or Federal District Court for the District of New Jersey,
any defenses based on jurisdiction, venue or forum non conveniens. If any
provision of this Lease shall be invalid or unenforceable, the remainder of this
Lease shall not be affected and shall be enforced to the extent permitted by
law. The table of contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If
any words or phrases in this Lease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Lease shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Lease and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision
of this Lease on Tenant's part to be performed, shall be deemed and construed as
a separate and independent covenant of Tenant, not
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dependent on any other provision of this Lease. All terms and words used in this
Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. Tenant specifically agrees to pay all of Landlord's costs, charges and
expenses, including attorneys' fees, incurred in connection with any document
review requested by Tenant and upon submission of bills therefor. In the event
Landlord permits Tenant to examine Landlord's books and records with respect to
any Additional Charge imposed under this Lease, such examination shall be
conducted at Tenant's sole cost and expense and shall be conditioned upon Tenant
retaining an independent accounting firm for such purposes which shall not be
compensated on any type of contingent fee basis with respect to such
examination. Wherever in this Lease or by law Landlord is authorized to charge
or recover costs and expenses for legal services or attorneys' fees, same shall
include, without limitation, the costs and expenses for in-house or staff legal
counsel or outside counsel at rates not to exceed the-reasonable and customary
charges for any such services as would be imposed in an arms length third party
agreement for such services.
39.12. Within thirty (30) days of each anniversary date of this Lease,
Tenant shall annually furnish to Landlord a copy of its then current audited
financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior authorization
of Tenant. Any material adverse change of Tenant's financial condition shall be
furnished to Landlord in writing forthwith and without request by Landlord for
same.
39.13. Tenant shall be allotted four (4) unreserved parking spaces per
1,000 square rentable square feet.
ARTICLE 40 - RIGHT OF FIRST REFUSAL
Tenant will be granted a right of first refusal on all available office
space on the floor they currently occupy. All terms and conditions will reflect
an amount agreeable between Landlord and Tenant at the time additional space is
occupied. Tenant's notification by Landlord will be upon Landlord receiving a
bona-fide offer, in writing. Tenant's decision to proceed upon the terms
received by Landlord will be accepted or rejected by Tenant within three (3)
business days after receipt of notice to Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
landlord
SIXTY-FIVE WILLOWBROOK TENANCY
by: Passaic Investment LLC
Managing Tenant
James M. Long, Managing Member
Tenant
Audible, Inc.
BY: _______________________________
Name:
[Corporate Seal] Title: President
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD
SIXTY-FIVE WILLOWBROOK TENANCY
by: Passaic Investment LLC
Managing Tenant
/s/ Christopher R. Smith
----------------------------------
Christopher R. Smith, President
American Property Global Partners
TENANT
Audible, Inc.
BY: /s/ Patrick C. Barry
---------------------------
Name: Patrick C. Barry
[Corporate Seal] Title: CFO, VP
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