EXHIBIT 10.1
LEASE AGREEMENT
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This LEASE AGREEMENT (this "Lease"), is made as of June 10, 2005 by and
between 210 SYLVAN AVENUE LLC, a New Jersey LLC, having an address P.O. Box 40,
Atlantic Highlands, New Jersey 07716 (hereinafter "Landlord"), and ASTA FUNDING,
INC a Corporation, having an address at 210 Sylvan Avenue, Englewood Cliffs, New
Jersey hereinafter referred to as "Tenant".
PRELIMINARY STATEMENT
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Landlord is the owner in fee simple of the tracts of land located at
190 - 210 Sylvan Avenue, Borough of Englewood Cliffs, County of Bergen, State of
New Jersey and known and designated as Lot 314 in Block 12 on the Tax Map of the
Borough of Englewood Cliffs, upon which Landlord owns a commercial building and
certain related improvements. Tenant desires to lease certain space in said
building in accordance with, and subject to, the provisions of this Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
DEFINITIONS
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For all purposes of the Lease and all agreements supplemental thereto
or modifying this Lease, the following terms shall have the meanings herein
specified:
"ADDITIONAL RENT" shall mean all sums payable by Tenant to Landlord
pursuant to the various Articles herein in which said term is used and any other
charges, other than Base Rent, as shall become due and payable hereunder.
"ALTERATIONS" shall have the meaning given to such term in Article 8.
"BASE RENT" shall mean the fixed rental payable pursuant to Article 1.
"BASE RENT COMMENCEMENT DATE" shall mean the date(s) set forward in
Article 1, and contained in "Definitions".
"BUILDING" shall mean the building located on the Property and in which
the Premises are located.
"BUILDING HOLIDAYS" shall mean Sunday, New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and the day after, and Christmas
Day, as each of said holidays are celebrated in the State of New Jersey.
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"COMMENCEMENT DATE" shall mean for the Premises of the Building, which
consist of three separate locations within the Building: For 210 Sylvan Avenue
First Floor consisting of Ten Thousand Square Feet (10,000 Sq. Ft.) Commencement
Date is August 1, 2005. For 200 Sylvan Avenue consisting of One Thousand
Seventeen Hundred and Eighty Square Feet (1,780 Sq. Ft.), Commencement Date is
August 1, 2005 with possession as soon as possible .. For 190 Sylvan Avenue,
consisting of Six Hundred (600 Sq. Ft.) Commencement Date is August 1, 2005.
Tenant reserves the right to vacate the space at 190 Sylvan Avenue (600 square
feet) at any time after the commencement date. A pro-rata reduction adjustment
to the Base Rent will be made on the day the space has been vacated.
"COST PRICE INDEX" shall mean "Consumer Price Index for Urban Wage
Earners and Clerical Workers (1982-84 100) for New York City and Northern New
Jersey Issued by the Bureau of Labor Statistics of the United States Department
of Labor" (hereafter, the "Index").
"COMMON AREA" OR "COMMON AREAS" shall mean all portions of the
Property and Building which are not intended to be rented to a tenant,
including, without limitation, interior corridors, elevators, mechanical rooms,
stairs, lobbies, lavatories, washrooms, roadways, parking areas, sidewalks,
plazas, traffic lights, storm drainage facilities, landscaped areas, exterior
walks and ramps, sanitary sewer, domestic and fire water systems, fire
protection installations, security systems, electric power and telephone cables
and lines and other utility connections, facilities and other improvements
(above and below ground) which are owned by Landlord and are now or hereafter
constructed on the Property for use in common by Landlord, Tenant and other
tenants located in the Buildings or for the common benefit of the foregoing.
Included are all areas and facilities outside the Demised Premises and within
the exterior boundary line of the Property and interior utility raceways within
the Demised Premises that are provided and designated by the Landlord from time
to time for the general use of Landlord, Tenant, and other tenants of the
Property and their respective employees, suppliers, shippers, contractors and
invitees.
"EXCUSABLE DELAY" shall mean a delay caused by governmental action or
lack thereof, shortages or unavailability of materials and/or supplies, labor
disputes, strikes, slow downs, job actions, picketing, secondary boycotts, fire
or other casualty, delays in transportation, acts of God, requests of any
governmental agencies or authorities, court or administrative orders or
regulations, adjustment of insurance, acts of declared or undeclared war, public
disorder, riot or civil commotion, or when applied to an obligation of Landlord
by anything else beyond the reasonable control of Landlord or when applied to an
obligation of Tenant, anything else beyond the reasonable control of Tenant.
"GOVERNMENTAL AUTHORITY" shall mean any governmental instrumentality,
authority or body (including, without limitation, the township, county, state or
federal governments, any agency, subdivision or department of any of the
foregoing or any other quasi-governmental agency, or any fire insurance rating
organization) that has jurisdiction over the Property, the Building or the use
or operation thereof.
"GROSS ANNUAL RENTALS" shall mean all income from the operation and
management of the Building, including, without limitation, all Base Rents, and
Additional Rents.
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"LEASE" OR "THIS LEASE" consists of this Agreement of Lease and
EXHIBITS A through EXHIBITS F and Article 33 (containing the Enumeration of
Attachments) attached hereto and made a part hereof.
"MORTGAGEE" shall mean the holder of any mortgage now or hereafter
encumbering the Building and Property.
"OPERATING EXPENSES" shall have the meaning given such term in Article
4.
"PREMISES" shall mean the space being leased to Tenant in the Building
identified on EXHIBIT B attached hereto in accordance with, and subject to, the
provisions of this Lease.
"PROPERTY" shall mean the land commonly known as 210 Sylvan Avenue, 200
Sylvan Avenue and 190 Sylvan Avenue, Borough of Englewood Cliffs, County of
Bergen, State of New Jersey and also known and designated as Lot 314 in Block 12
on the Tax Map of the Borough of Englewood Cliffs.
"RENTABLE AREA OF THE BUILDING" shall be deemed to mean 56,000 square
feet for all purposes of this Lease.
"RENTABLE AREA OF THE PREMISES" shall be deemed to mean 12, 380 square
feet for all purposes of this Lease. In computing Rentable Area of the Premises
and Rentable Area of the Building, no deduction shall be made for columns and
projections necessary for the structural integrity of the Building, and the
measurements provided to Landlord shall be conclusive and binding upon the
parties hereto.
"RULES AND REGULATIONS" shall mean the rules and regulations set forth
on EXHIBIT C, attached hereto and made a part hereof, as the same may be amended
from time to time by Landlord pursuant to the provisions of Article 5.
"STRUCTURAL WORK" shall mean any work, which is required to be
capitalized rather than expensed under generally accepted accounting principles,
to the structural members of the roof, foundation, floor slabs, windows, and
permanent exterior walls and support columns of the Building.
"TAXES" shall mean all real estate taxes and governmental impositions,
including, without limitation, special assessments, levied against the Property
or the Building and any taxes levied against any personal property owned by
Landlord used in connection with the operation of the Property or the Building,
and any taxes assessed in lieu of any of the foregoing.
"TENANT DELAY" shall mean any act or omission of any nature by Tenant
or Tenant's Visitors which delays the performance by Landlord of its other
obligations hereunder or under the Work Agreement, except for day to day
activities of Tenant.
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"TENANT UTILITIES" shall mean Tenant's metered utilities for Electric,
Gas and Water maintained by the Tenant. for 210 Sylvan Avenue, metered utility
for Electric maintained by the Tenant for 200 Sylvan Avenue and Tenant's
Proportionate Share of Gas and Water for 200 Sylvan Avenue.
"TENANT FLOOR" shall mean that floor of the Building on which the
Premises are located.
"TENANT'S PROPORTIONATE UTILITY SHARE" shall mean the ratio of the
Rentable Area of the Premises to the Rentable Area of the Floor for the period
starting on the Commencement Date.
"TENANT'S PROPORTIONATE SHARE" shall mean Tenant's Proportionate Share
of Gas and Water utility expenses for 200 Sylvan Avenue, 1,780 square feet, or
17.8%. (1,780 square feet divided by 10,000 square feet of the 200 Structure,
which is separately metered.)
"TENANT'S VISITORS" shall mean persons invited by Tenant into the
Premises as guests or doing lawful business with Tenant including, without
limitation, Tenant's agents, servants, employees, contractors, invitees and
licensees.
"TERM" shall mean the time period commencing on the Commencement Date
and terminating on the Termination Date.
"TERMINATION DATE" shall mean the fifth (5th) anniversary of the Base
Rent Commencement Date at midnight of the Commencement Date : Termination date
for all leases shall be July 31, 2010 at midnight. If the Term is extended
pursuant to the provisions of this Lease, the Termination Date shall mean the
last day of any such extended term.
ARTICLE 1
DEMISE OF PREMISES; TERM; RENT; ADDITIONAL RENT
1.1. Demise. Landlord, for and in consideration of the covenants hereinafter
contained and made on the part of Tenant, hereby leases to Tenant for the Term,
and Tenant hereby hires from Landlord for the Term, the Premises, subject to the
terms and conditions of this Lease. The Premises consist of three separate
locations within the Building, 210 Sylvan Avenue First Floor consisting of Ten
Thousand Square Feet (10,000 Sq. Ft.) Commencement Date is August 1, 2005: 200
Sylvan Avenue consisting of One Thousand Seventeen Hundred and Eighty Square
Feet (1,780 Sq. Ft.) Commencement Date is August 1, 2005 with possession as soon
as possible; and 190 Sylvan Avenue, consisting of Six Hundred (600 Sq. Ft.)
Commencement Date is August 1, 2005. Termination date for 200 & 210 Sylvan
Avenue locations shall be July 31, 2010 at midnight. Termination Date for 190
Sylvan Avenue shall be any time after Commencement Date, but Landlord must
receive notice by December 31, 2005 of Tenants intent concerning retention of
said 600 Square feet.
1.2. Parking Spaces. During the Term, Tenant shall have the right, at no
additional charge, to use Eighty (80) total parking spaces which include in the
aggregate number eight (8) reserved parking spaces to be assigned by Landlord,
located on the Property in common with other tenants in the Building in those
areas which are now or hereafter designated by Landlord as unreserved areas.
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1.3. Rent. (i) Tenant hereby covenants and agrees to pay to Landlord during the
Term, at the office of Landlord, or such other place as Landlord may from time
to time designate, without any offset, abatement, counterclaim, or deduction
whatsoever, (x) the Base Rent specified in paragraphs (iii) and (iv) of this
Section 1.3 in equal monthly installments on the first day of each month during
the Term, commencing in the Base Rent Commencement Date, in advance, without
notice or demand, except that Tenant shall pay the first monthly installment (or
if the Commencement Date shall fall on a day other than the first day of a
month, such payment shall be the second monthly installment) on the date of the
execution of this Lease, (y) all Additional Rent as herein provided, and (z) all
other sums payable by Tenant hereunder.
(ii) If the Base Rent Commencement Date shall fall on a day other than
the first day of a month, the Base Rent and any Additional Rent payable
hereunder shall be apportioned for the number of days remaining in that month.
(iii) Tenant shall pay as Base Rent for the Premises during the
period commencing on the Base Rent Commencement Date set
forward above and ending on July 31, 2010, the sum of Two
Hundred Eighteen Thousand Eight Ninety-Six DOLLARS
($218,896.00) per annum, payable in equal monthly installments
in the sum of Eighteen Thousand Two Hundred Forty One DOLLARS
and Thirty Three CENTS ($18,241.33) per month. Total Base Rent
without adjustments or Additional Rent over a five (5) year
period is One Million Ninety-Four Thousand Four Hundred and
Eighty DOLLARS ($1,094,480.00)
(iv) The base annual rental cost of $218,896.00, will be adjusted,
commencing with the August 1, 2007 payment and annually
thereafter by making an adjustment based on the increase in
the Consumer Price Index using the month of August 2005as the
base, and the Index for May of each subsequent year as the
adjustment date. The reason for utilizing a May Consumer Price
Index as a base for subsequent year adjustments is that the
publication of these indices is generally three (3) months in
arrears and, accordingly, the May Index figure will be the
most recently published Index at the time of the annual
adjustment. As used in this paragraph, "Consumer Price Index"
shall mean: "Consumer Price Index for Urban Wage Earners and
Clerical Workers (1982-84 100) for New York City and Northern
New Jersey Issued by the Bureau of Labor Statistics of the
United States Department of Labor" (hereafter, the "Index").
The base month of the Index (hereafter "Base Month") shall be
August 2005. The base annual rental in the amount of
$218,896.00shall be increased by the same percentage, if any,
as the Index for May of each subsequent year has increased
from the base Index.
The aforesaid resultant increase shall be divided by twelve (12) and
shall be added to the base monthly rental of $18,241.33 to determine
the new monthly base rental to be paid commencing on July of each lease
year.
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(v) Landlord will grant a rent credit of three (3) months for 200
Sylvan Avenue consisting of One Thousand Seventeen Hundred and
Eighty Square Feet (1,780) beginning August 1, 2005 and to end
October 31, 2005.
In the event the Index is discontinued, or is no longer available, another Index
published by the United States Government, which is substantially similar to the
Index shall be used with any appropriate conversion factor suggested by the
government and applied thereto so as to substantially equate to the new Index
with the original Index.
OR: The adjustment shall be Three-percent (3%) per annum of the base rent as set
forward above, whichever cumulative amount is lower.
1.4. Tenant Utilities.
(i) Tenant shall pay the metered Electric, Gas and Water
utilities for the Ten Thousand (10,000) Square Foot rental at210 Sylvan Avenue
The Tenant shall pay the metered Electric utility for the One Thousand Seven
Hundred Eight (1,780) Square Feet located at 200 Sylvan Avenue; Tenant agrees to
pay Tenant's Proportionate Share of the Gas and Water utilities for the 1,780
square feet located at 200 Sylvan Avenue.
(ii) Tenant's inability or failure to take possession of the
Demised
Premises on the Commencement Date will not delay the commencement of the Term
or Tenant's obligation to pay Base Rent, Additional Rent or to comply with any
of its other obligations hereunder. If delivery of possession of the Demised
Premises to Tenant, is delayed beyond the anticipated Commencement Date set
forth in the Agreement of Lease, regardless of the reasons for or cause of such
delay, this Lease will not be void or voidable and the Term will commence as
provided above. Further, Landlord will not be liable to Tenant for any expenses
or damages whatsoever arising from or relating to such delay, except as may be
expressly provided elsewhere in this Lease.
1.5. Late Charges. If any Base Rent or Additional Rent is not paid within ten
(10) days after the date when due, Tenant shall pay to Landlord on demand a late
charge equal to five percent (5%) of the amount unpaid.
1.6. Landlord's Rights Regarding Additional Rent. Landlord shall have all the
rights and remedies for the collection of Additional Rent as are available to
Landlord for the collection of the Base Rent. Tenant shall be obligated to pay
the Base Rental and any additional or incremental rental called for hereunder
and shall be entitled to no counterclaim nor any privilege to allege or take any
set-off for any claim Tenant may have, Tenant shall have that recourse which is
provided to tenants at law or in equity.
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ARTICLE 2
USE
2.1. The Premises shall be used by Tenant and by any permitted assignee or
subtenant only for executive, general, administrative offices, sales, marketing,
professional services, help desk, and any other operational aspects of Tenant's
business, and any related activities, and for no other use or purpose. When
Tenant takes possession of the Premises, Tenant shall be deemed to have accepted
the Premises as being satisfactory and in good condition as of the date of such
possession.
2.2. Tenant shall not use, or suffer or permit the use of, the Premises or any
part thereof or the Building or any component thereof or the Property or any
portion thereof in any manner or for any purpose or do, bring or keep anything,
or suffer or permit anything to be done, brought or kept, therein or thereon (i)
which would violate any covenant, agreement, term, provision or condition of
this Lease or is unlawful or in contravention of the certificate of occupancy
for the Building or for the Premises, or is in contravention of any legal or
insurance requirement to which the Building or the Premises is subject, or (ii)
which would overload or could cause an overload of the electrical or mechanical
systems of the Building or which would exceed the floor load per square foot
which any floor in the Premises was designed to carry and which is allowed by
law, or (iii) which in the reasonable judgment of Landlord may in any way impair
or interfere with the proper and economic heating or air conditioning of the
Building, or (iv) which may constitute a nuisance, disturbance or menace to the
other tenants of the Building or (v) which would increase the cost of, or
invalidate or conflict with, the fire or public liability insurance on the
Building or personal property of Landlord used in connection with the operation
of the Building, or (vi) which, in the reasonable judgment of Landlord, would in
any way impair or exceed the design criteria, the structural integrity of the
Building, or (vii) which would result in Tenant or Tenant's Visitors parking at
any time in more parking spaces than allowed to it pursuant to Section 1.2.
(viii) tenant reserves the right to utilize portable heaters in the event the
HVAC balancing is not completed at Tenants sole cost and expense, provided such
heaters comply with all applicable Local and State laws.
2.3. The use and control of the Common Facilities is reserved to
Landlord and Landlord may at any time, and from time to time, close any Common
Facilities to make repairs or renovations, effect construction, discourage
non-tenant access, improve security or reconfigure particular Common Facilities,
and may do such other acts on, in and to the Common Facilities as in its
judgment may be desirable to insure and/or improve the convenience thereof for
Landlord and/or for present or future tenants of the Building, all without
liability to Tenant. Notwithstanding the foregoing, there will be no change to
the Demised Premises, and, subject to causes beyond Landlord's reasonable
control, Tenant will be entitled to reasonable access to the Demised Premises at
all times, except as may be provided hereinafter. All automobile parking areas,
driveways, entrances and exits thereto, and other facilities furnished by
Landlord in or near the Building, including employee parking areas, the truck
way or ways, sidewalks, landscaped areas, and other areas and improvements
provided by Landlord for the general use, in common, of tenants, their officers,
agents, employees and customers, shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from time
to time to establish, modify and enforce reasonable rules and regulations with
respect to all facilities and areas mentioned in this Article. Landlord shall
have the right to construct, maintain and operate lighting facilities on all
said areas and improvements; to police the same; from time to time to change the
area, level, location and arrangement of parking areas and other facilities
hereinabove referred to; to restrict parking by tenants, their officers, agents
and employees to employee parking areas; to enforce parking charges; to close
temporarily all or any portion of the parking areas or facilities; to discourage
non-customer parking; and to do and perform such other acts in and to said areas
and improvements as, in the use of good business judgment, the Landlord shall
determine to be advisable with a view to the improvement of the convenience and
use thereof by Tenants, their officers, agents, employees and customers.
Landlord will operate and maintain the common facilities referred to above in
such manner as Landlord, in its sole discretion, shall determine from time to
time. Without limiting the scope of such discretion, Landlord shall have the
full right and authority to employ all personnel and to make all rules and
regulations pertaining to and necessary for the proper operation and maintenance
of the common areas and facilities. Landlord will make every reasonable effort
to keep all Common Areas of the Property, including parking areas and sidewalks,
clear and safe for Tenant personnel.
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2.4 Use of Additional Areas: The use and occupation by the Tenant of
the leased premises shall include the use in common with others entitled thereto
of the common areas, employees' parking areas located in rear of the Building,
sidewalks and tenant car parking areas in front and side of the Building and
other facilities as may be designated from time to time by the Landlord, subject
however to the terms and conditions of this Lease. Landlord may at Landlords
sole discretion assign "Reserved" parking spots for the sole use of Tenant.
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ARTICLE 3
COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
3.1. Tenant, at its sole expense, shall comply with all rules, orders, laws,
regulations and requirements of any Governmental Authority, Board of Fire
Underwriters or any other similar body exercising functions similar to those of
any of the foregoing which shall impose any violation, order or duty upon
Landlord or Tenant with respect to Tenant's Use of the Premises. Any increase in
fire insurance premiums on the Building or its contents caused solely by the use
or occupancy of the Premises by Tenant shall be Additional Rent and paid by
Tenant to Landlord within thirty (30) days of demand therefore made by Landlord
to Tenant, but payable by Tenant over the maximum period allowable.
ARTICLE 4
LANDLORD'S OPERATING EXPENSE
4.1. In addition to the Base Rent, Tenant shall pay to Landlord as Additional
Rent hereunder commencing on the Commencement Date 00.0 percent of any increase
in Operating Expenses during each lease year.
ARTICLE 5
RULES AND REGULATIONS
5.1. Tenant and Tenant's Visitors shall comply with the Rules and Regulations
with respect to the Building and Property which are set forth in EXHIBIT C
annexed to this Lease and are expressly made a part hereof. Landlord shall have
the right to make reasonable amendments thereto from time to time for the
safety, care and cleanliness of the Building and Property (for which Landlord
shall immediately provide Tenant with a copy of such amendments), the
preservation of good order therein and the general convenience of all the
tenants and Tenant shall comply with such amended Rules and Regulations, after
thirty (30) days' written notice thereof from Landlord. The Rules and
Regulations will not materially interfere with the use and enjoyment of the
Premises by Tenant. In the event there is a conflict between the provisions of
this Lease and the Rules and Regulations, the provisions of this Lease shall
govern. Landlord shall not be responsible for the nonperformance by any other
tenant or occupant of the Building of any of said Rules and Regulations;
however, Landlord shall use reasonable efforts to apply all Rules and
Regulations uniformly to all tenants.
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ARTICLE 6
LANDLORD'S RIGHT OF ENTRY
6.1. Landlord and Landlord's agents and representatives shall have the right to
enter the Premises at all reasonable hours for the following purposes: (i)
examining the Premises; (ii) making such repairs or alterations therein as may
be necessary in Landlord's reasonable judgment for the safety and preservation
of the Building or the Premises; (iii) erecting, maintaining, repairing or
replacing wires, ducts, cables, conduits, vents or plumbing equipment running
in, to or through the Premises; (iv) showing the Premises to prospective new
tenants during the last twelve (12) months of the Term; (v) showing the Premises
during the Term to any mortgagees, insurance company representatives, or
prospective purchasers of the Property or the Building; or (vi) curing any
default by Tenant in performing its obligations under this Lease. Landlord shall
give Tenant five (5) business days prior written notice before commencing any
non-emergency repair or alteration.
6.2. Landlord may enter upon the Premises at any time in case of emergency
without prior notice to Tenant.
6.3. Landlord, in exercising any of its rights under this Article 6, shall not
be deemed guilty of an eviction, partial eviction, constructive eviction or
disturbance of Tenant's use or possession of the Premises and shall not be
liable to Tenant for same provided any disturbance is the direct result of
responding to the emergency situation described in Section 6.2.
6.4. In connection with any entry by Landlord pursuant to this Article 6,
Landlord shall use all reasonable efforts to minimize the disruption of Tenant's
use of the Premises and all work performed by or on behalf of Landlord in or on
the Premises pursuant to this Article 6 shall be performed with as little
inconvenience to Tenant's business as is reasonably possible.
6.5. Tenant shall not change any locks or install any additional locks on doors
entering into the Premises without first providing Landlord with a copy of any
such lock key. Installation of locks shall be done only after written notice
Landlord and by the contractor specified by Landlord for this work on the
premises (see Rules and Regulations). If in an emergency Landlord is unable to
gain entry to the Premises by unlocking entry doors thereto, Landlord may force
or otherwise enter the Premises without liability to Tenant for any damage
resulting directly or indirectly there from. Tenant shall be responsible for all
damages created or caused by its failure to give to Landlord a copy of any key
to any lock installed by Tenant controlling entry to the Premises.
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ARTICLE 7
MAINTENANCE BY TENANT AND LANDLORD
7.1. Tenant shall take good care of the Premises throughout the Term, maintain
and preserve same in as good a condition as delivered to Tenant on the
Commencement Date, except for normal wear and tear and damage by fire or other
casualty not caused by Tenant, and be responsible for all necessary repairs and
replacements thereto, other than those which it is Landlord's obligation to make
under Section 7.2. Tenant shall not injure, deface or commit waste of the
Premises. Tenant shall be responsible for all damage of any kind or character to
the Property and/or Building caused by the negligence or willful misconduct of
Tenant or Tenant's Visitors or Alterations performed by Tenant. Tenant shall
make, at Tenant's expense, all repairs to the Premises or to the Building for
which Tenant is responsible under this Section 7.1.
7.2. Landlord shall be responsible for all Structural Work at its own expense;
provided, however, that Tenant shall pay as Additional Rent the cost of all such
repairs resulting from damage solely caused by the negligence or willful
misconduct of Tenant or Tenant's Visitors, or Alterations performed by Tenant.
Landlord shall maintain, repair and replace all plumbing, heating, air
conditioning, electrical and mechanical fixtures and systems (exclusive of
electrical and mechanical fixtures installed by Tenant) when required, and
maintain and make repairs to the Common Areas, and the exterior of the Building
(other than to the permanent exterior walls), provided, however, that Tenant
shall pay as Additional Rent the cost of all such repairs or replacements
arising solely from the negligence or willful misconduct of Tenant or Tenant's
Visitors or Alterations performed by Tenant.
7.3. The failure of Landlord to any extent to furnish, or the interruption or
termination of, the services provided for in this Article in whole or in part
resulting from the events described in the definition of Excusable Delay shall
not render Landlord liable in any respect, nor be construed as an eviction of
Tenant, nor work an abatement of rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement hereof. Should any of the equipment or
machinery used in the provision of such services cease to function properly for
any cause, Tenant shall have no claim for offset or abatement of rent or damages
on account of reasonable interruption in service occasioned thereby or resulting
there from. Landlord shall proceed with due diligence to restore any
interruption in services. Landlord shall have the right temporarily to interrupt
services in order to make any necessary repairs or replacements to, or to
otherwise service, the Building's systems. Any obligation or service not
specifically designated as Landlord's responsibility herein shall be the strict
responsibility of the Tenant. The Landlord and Tenant are bound by Section 31.10
Mediation whereby the Tenant can apply for damages for any interruption beyond
what is considered reasonable interruption of service.
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7.4. In the event that Tenant shall fail or neglect to comply with the aforesaid
statutes, ordinances, rules, orders, regulations and requirements or any of
them, or in the case the Tenant shall fail or neglect to make any necessary
repairs, then the Landlord or Landlord's agents may enter said premises and make
said repairs and comply with any and all of the said statutes, ordinances,
rules, orders, regulations or requirements, at the cost and expense of the
Tenant and in case of the Tenant's failure to pay therefore, the said cost and
expense shall be added to the next month's rent and be due and payable as such,
or the Landlord may deduct the same from the balance of any remaining security
deposit in the Landlord's hands. This provision is in addition to the right of
the Landlord to terminate this lease by reason of any default on the part of the
Tenant. Landlord will make every reasonable effort to make any necessary repairs
to Tenant's space at the lowest possible cost.
ARTICLE 8
ALTERATIONS BY TENANT OR LANDLORD
8.1. Tenant agrees not to make or allow to be made any alterations, improvements
(other than the Tenant Improvements), additions or physical changes in or about
the Premises ("Alterations") or place signs on the Premises which are visible
from outside the Premises without first obtaining the written consent of
Landlord in each instance, which consent (A) may be withheld by Landlord in its
sole discretion if the proposed Alterations (i) affect the structural components
of the Building, (ii) which in the sole opinion of the Landlord are not designed
in conformance with the Building design criteria, (iii) adversely affect the
Building systems or services provided to other tenants of Landlord in the
Building, (iv) are visible from the exterior of the Premises, or (v) reduce the
value or utility of the Building, and (B) in all other cases, shall not be
unreasonably withheld or delayed, but may be given on such reasonable conditions
as Landlord may elect. Any and all Alterations that are fixed to the Premises
shall become the property of Landlord upon termination of this Lease, except for
trade fixtures, movable equipment or furniture owned by Tenant (which shall
remain the property of Tenant and shall be removed by Tenant upon the
termination of the Lease). Landlord may, nonetheless, require Tenant to remove
any and all Alterations and all fixtures, equipment and other improvements
installed on the Premises, In the event the Landlord so elects, and Tenant fails
to remove such property, Landlord may remove the same at Tenant's reasonable
cost, and Tenant shall pay Landlord on demand all costs incurred in connection
therewith. Tenant shall be responsible for the cost of repairing all damage to
the Premises resulting from the removal of such property. Tenant's obligations
pursuant to this Section 8.1 shall survive the expiration or termination of this
Lease.
8.2. Tenant shall submit to Landlord at the time of its request for Landlord's
consent to any proposed Alteration, plans and specifications (including layout,
architectural, mechanical and structural drawings) for such proposed Alteration.
All permits, approvals and certificates required by all Governmental Authorities
shall be timely obtained by Tenant at Tenant's expense and submitted to Landlord
(Landlord shall not unreasonably refuse to join in any application therefore
provided that such joinder shall be without expense to Landlord and further
provided that Landlord's joinder is required by such Governmental Authority).
Notwithstanding Landlord's approval of plans and specifications for any
Alteration, all Alterations shall be designed by Tenant and shall be made to be
in full compliance with all applicable laws, orders and regulations of
Governmental Authorities and all building codes, rules or regulations and the
Rules and Regulations of this Lease; all materials and equipment to be
incorporated into the Premises as a result of all Alterations shall be new and
of first class quality; and no such materials or equipment shall be subject to
any lien, encumbrance, chattel mortgage or title retention or security agreement
except for fixed equipment. All Alterations shall be performed by Tenant, at
Tenant's expense. All Alterations, as well as repairs and maintenance performed
by Tenant, shall be done in a manner which shall not cause significant, noise,
odor, or dust and shall not interfere with the business of other tenants in the
Building during Business Hours. Upon completion of any Alterations, Tenant shall
provide Landlord with as-built plans depicting said Alterations. [See Exhibit C
(Rules and Regulations) and Exhibit F (Guidelines for Tenants Retaining
Consultants and Contractors)]
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8.3. Landlord reserves the right to make changes, alterations, additions,
improvements, repairs or replacements in or to the Buildings and the fixtures
and equipment thereof, as well as in or to the street entrances, halls, lobbies,
passages, elevators and stairways and other parts of the Buildings, and to
erect, maintain and use pipes, ducts and conduits in and through the Premises,
all as it may reasonably deem necessary or desirable; provided, however, that
the Base Rent shall abate for the period during which there is an unreasonable
obstruction of the means of access to the Premises or there is an unreasonable
interference with Tenant's use of the Premises and the square foot area of the
Premises is reduced thereby in the sole opinion of the Landlord. Nothing
contained in this Section shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant under this Lease with respect to making any
repair, replacement or improvement or complying with any law, order or
requirement of Governmental Authority.
8.4 Wiring Installation: Tenant may install wiring, cables, risers and similar
installations at the premises subject to Landlord's prior approval which shall
not be unreasonably withheld. All cabling, wiring, risers and similar
installations at the premises must be properly labeled at each end and in each
telecommunications electrical closet.
8.5. Wiring Removal: Landlord May Elect to Either Remove or Keep Wires. Within
30 days after the expiration or sooner termination of this Lease, Landlord may
elect ("Election Right") by written notice to tenant to: a(i)Retain any or all
wiring, cables, risers, and similar installations appurtenant thereto installed
by Tenant in the risers of the Building. (ii) Remove any or all such Wiring and
restore the Premises and risers to their conditions existing prior to the
installation of the wiring ("Wire Restoration Work"). Landlord shall perform
such Wire Restoration Work at Tenant's sole cost and expense; or (iii) Require
Tenant to perform the Wire Restoration Work at Tenant's sole cost and expense.
b. Survival: The provisions of this Clause shall survive the expiration or
sooner termination of this Lease. c. Condition of Wiring. In the event Landlord
elects to retain the Wiring (pursuant to Paragraph a.(i) hereof), Tenant
covenants that: (i) Tenant shall be the sole owner of such Wiring, that Tenant
shall have good right to surrender such Wiring, and that such Wiring shall be
free of all liens and encumbrances; and (ii) All Wiring shall be left in good
condition, working order, properly labeled at each end and in each
telecommunications/electrical closet and junction box, and in safe condition. d.
Landlord Retains Security Deposit. Notwithstanding anything to the contrary in
Article 28 and Section 31.07, Landlord may retain Tenant's Security Deposit
after the expiration or sooner termination of the Lease until the earliest of
the following events: (e)Landlord elects to retain the Wiring pursuant to
Paragraph a(i) (ii)Landlord elects to perform the Wiring Restoration Work
pursuant to Paragraph a(ii) and the Wiring Restoration Work is complete and
Tenant has fully reimbursed landlord for all costs related thereto; or
(iii)Landlord elects to require the Tenant to perform the Wiring Restoration
Work pursuant to Paragraph a(iii) and the Wiring Restoration Work is complete
and tenant has paid for all costs related thereto. e. Landlord Can Apply
Security Deposit. In the event tenant fails or refuses to pay all costs of the
Wiring Restoration Work within 15 days of Tenant's receipt of Landlord's notice
requesting Tenant's reimbursement for or payment of such costs, Landlord may
apply all or any portion of Tenant's Security Deposit toward the payment of such
unpaid costs relative to the Wiring Restoration Work. f. No Limit or Right to
Sue. The retention or application of such Security Deposit by landlord pursuant
to this clause does not constitute a limitation on a waiver of Landlord's right
to seek further remedy under law or equity.
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8.6. Tenant Request for Landlord Work: If the Tenant requests that Landlord
perform any changes, repairs, or modifications to the Demised Premises, such
changes or modifications shall be performed through Landlord's affiliate MJB
Johnson, Inc. Said work may be invoiced directly by MJB Johnson, Inc. and in
such event shall be payable separately to that entity. All such charges shall be
considered Additional Rent hereunder and, if not timely paid to MJB Johnson,
Inc., Landlord shall have all remedies available relating to Additional Rent.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
9.1. In the event Tenant desires to assign this Lease of sublet said premises,
it shall first offer same to Landlord in writing at the rental set forth herein.
Should Landlord not accept the assignment within Thirty (30) days of receipt of
such written proposal, then Tenant, subject to the approval of any mortgagee, if
required, shall be allowed to assign this Lease, provided that Tenant is in good
standing and shall not be in default of any of the terms, covenants and
conditions of the Lease, and subject to the following terms and conditions:
(i) Simultaneously with any request for consent for any
assignment/sublet, Tenant shall deliver to Landlord a copy of
proposed assignment/sublet and assumption agreement and a
statement containing the name and address of the proposed
assignee/subtenant and its principles and the bank and other
financial references and statements reasonably sufficient to
enable Landlord to ascertain the financial responsibility of
the proposed assignee/subtenant. Landlord shall not
unreasonably withhold acceptance of assignee of the Lease.
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(ii) In the event Landlord's written consent shall be given, a duly
executed copy of the assignment/sublet shall be delivered to
Landlord within thirty (30) days after execution thereof and
such assignment/sublet shall contain an agreement from the
assignee/subtenant wherein and whereby the assignee/subtenant
shall assume all of the terms, covenants and conditions of
this Lease on the part of the Tenant to be performed and shall
contain an assignment of any and all security deposited with
Landlord under the terms of this Lease. Such assignment and
assumption shall be duly acknowledged and in form for
recording.
(iii) The demised premises shall be used for the same purpose set
forth herein.
(iv) Upon acceptance of assignment/sublet the Landlord shall,
provided Tenant is in good standing with Landlord, return to
tenant Security Deposit within sixty (60) days of vacating
premises. In addition, upon return of Security Deposit, tenant
shall be released from any further obligation under this
Lease. The assignor or sub-tenant will pay any rent,
additional rent or share of utilities directly to the
Landlord.
ARTICLE 10
SURRENDER
10.1. Upon the Termination Date, or prior expiration of the Term of this Lease,
Tenant shall peaceably and quietly quit and surrender to Landlord the Premises,
broom clean, in as good condition as on the Commencement Date, except for normal
wear and tear and damage by fire or other casualty not caused by Tenant, and
repairs and replacements other than those which it is Landlord's obligation to
make under Section 7.2, free and clear of tenants and occupants and with all of
Tenant's property removed and, to the extent required by Landlord in accordance
with the terms of this Lease, with Alterations restored to the extent required
by Article 8. Tenant's obligation to observe or perform this covenant shall
survive the Termination Date or prior expiration of the Term.
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ARTICLE 11
HOLDING OVER
11.1. Provided Tenant notifies the Landlord in writing four (4) months in
advance of the Termination Date there will be a reasonable amount of time the
Tenant will occupy the Premises past the Termination Date, the Base Rent and
Additional Rent in effect in the final year of the Lease shall be effective for
the Holding Over period. If Tenant does not provide four (4) months notice, for
hold over possession of the Premises beyond the Termination Date or prior
expiration of the Term, such holding over shall not be deemed to extend the Term
or renew this Lease but such holding over shall continue upon the terms
covenants and conditions of this Lease as a tenant at will except that Tenant
agrees that the charge for use and occupancy of the Premises for each calendar
month or portion thereof that Tenant holds over (even if such part shall be one
day) shall be a liquidated sum equal to one-twelfth (1/12th) of one times the
Base Rent and Additional Rent in addition to (plus) the original base rent
required to be paid by Tenant during the calendar year preceding the Termination
Date or earlier expiration of the Term. This means One and a Half the rental
amount due as original Base Rent and Additional Rent. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Premises will be extremely substantial, will exceed
the amount of the monthly Base Rent and Additional Rent payable hereunder and
will be impossible to accurately measure. If the Premises are not surrendered
upon the Termination Date or prior expiration of the Term, in addition to the
use and occupancy charge set forth above, Tenant shall indemnify and hold
harmless Landlord against any and all losses and liabilities resulting solely
there from, including, without limitation, any claims made by any succeeding
tenant founded upon such delay. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession by Tenant of
the Premises beyond the Termination Date or prior expiration of the Term, and
Landlord, upon said Termination Date or prior expiration of the Term, or at any
time thereafter (and notwithstanding that Landlord may accept from Tenant one or
more payments called for by this Section 11.1), shall be entitled to the benefit
of all legal remedies that now may be in force or may be hereafter enacted
relating to the immediate repossession of the Premises. The provisions of this
Article shall survive the Termination Date or earlier expiration of the Term.
ARTICLE 12
QUIET ENJOYMENT
12.1. Landlord covenants and agrees that, upon the performance by Tenant of all
of the covenants, agreements and provisions hereof on Tenant's part to be kept
and performed, Tenant shall have, hold and enjoy the Premises, subject to the
terms of this Lease, provided, however, that no diminution or abatement of the
Base Rent, Additional Rent or other payment to Landlord shall be claimed by or
allowed to Tenant for inconvenience or discomfort arising from the making of any
repairs or improvements to the Premises or the Building, nor for any space taken
to comply with any law, ordinance or order of any Governmental Authority, except
as provided for herein. Tenant's rights hereunder are and shall be subject to
the existing state of title to the Property, to all existing and future
mortgages, liens or real estate taxes, and to future easements affecting the
Property, including, by way of illustration and not limitation, easements for
storm and sanitary sewers, drainage ditches and public utilities, provided that
the same will not render the Premises unfit for Tenant's use as provided herein.
Landlord represents to Tenant that it has fee simple title to the Property. The
Landlord and Tenant are bound by Section 31.10 Mediation whereby the Tenant can
apply for damages for any interruption beyond what is considered reasonable
interruption of service.
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12.2 . Tenant shall not commit or suffer to be committed any waste or nuisance
or other act or thing which in the sole opinion of the Landlord may disturb the
quiet enjoyment of any other tenant in the building in which the leased premises
may be located, or in the Building, or which may disturb the quiet enjoyment of
any person whether within or outside the boundaries of the Property
ARTICLE 13
DEFAULT
13.1. If during the Term any one or more of the following acts or occurrences
shall happen, it shall constitute an Event of Default hereunder:
(i) Tenant shall fail to pay any Base Rent, Additional Rent or other sum of
money due hereunder when such material sum is due and such failure shall
continue for a period of ten (10) business days after written notice; or (ii)
Tenant shall fail to comply with any provision of this Lease or any other
written agreement between Landlord and Tenant not requiring the payment of
money, all of which terms, provisions and covenants shall be deemed material and
such failure shall continue for a period of thirty (30) days after written
notice of such default is given to Tenant, provided however, that if such
default is capable of being cured within a reasonable period, but cannot be
cured within such thirty (30) day period, then Tenant shall have such period of
time longer than thirty (30) days as is reasonably but minimally required to
cure such default with all due diligence; or (iii) the leasehold hereunder
demised shall be taken on execution or other process of law in any action
against Tenant unless discharged within sixty (60) days; or (iv) Tenant notifies
Landlord, at any time prior to the Commencement Date, that Tenant does not
intend to take occupancy of the Premises upon the commencement of the Term; or
Tenant shall vacate substantially all of the Premises for a period of six (6)
months or more, or advises Landlord of its intention to do so; or (v) Tenant
shall become insolvent or unable to pay its debts as they become due, or Tenant
notifies Landlord that it anticipates either condition; or (vi) Tenant takes any
action to, or notifies Landlord that Tenant intends to file a petition under any
section or chapter of the national Bankruptcy Code, as amended from time to
time, or under any similar law or statute of the United States or any State
thereof; or a petition shall be filed against the Tenant under any such statute
or Tenant or any creditor of Tenant notifies Landlord that it knows such a
petition will be filed unless discharged within sixty (60) days; or (vii) a
receiver or trustee shall be appointed for Tenant's leasehold interest in the
Premises or for all or a substantial part of the assets of Tenant unless
discharged within sixty (60) days. Provided, however, that the conditions
described in sub-paragraphs (v), (vi) and (vii) above shall not be deemed to be
an event of default, if Tenant is not otherwise in default of any of the terms
and conditions of this Lease at the time that such event occurs, and Tenant
continues to utilize the Premises in the usual course of business, and not for
the purpose of liquidation or dissolution of a bankrupt estate, and Tenant fully
and faithfully performs all of the terms and conditions of this Lease during
such insolvency, bankruptcy or receivership.
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ARTICLE 14
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
14.1. If any Event of Default occurs, Landlord may, notwithstanding the fact
that Landlord may have other remedies hereunder or at law or in equity, by
notice to Tenant, designate a date, not less than five (5) business days after
the giving of such notice, on which this Lease shall terminate; and thereupon,
on such date the Term of this Lease and the estate hereby granted shall expire
and terminate with the same force and effect as if the date specified in such
notice were the Termination Date and all rights of Tenant hereunder shall expire
and terminate but Tenant shall remain liable as provided in this Lease, and
Landlord shall have the right to remove all persons, goods, fixtures and
chattels from the Premises, by force or otherwise, without liability or damages
to Tenant. Tenant shall have right to Mediation as defined under Section 31.10
of this Lease.
14.2. If this Lease is terminated as provided in Section 14.1, or as permitted
by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and
Landlord may, without further notice, enter upon, re-enter, possess and
repossess the same by summary proceedings, ejectment or other legal proceeding,
and again have, repossess and enjoy the same as if this Lease had not been made,
and in any such event neither Tenant nor any person claiming through or under
Tenant shall be entitled to possession or to remain in possession of the
Premises, and Landlord at its option shall forthwith, notwithstanding any other
provision of this Lease, be entitled to recover from Tenant as and for damages
either:
(i) an amount equal to the excess, if any, of (a) all Base Rent
reserved hereunder for the unexpired portion of the Term over (b) the aggregate
fair rental value of the Premises at the time of termination for such unexpired
portion of the Term, discounted at the rate of three percent (3%) per annum to
then present worth plus an amount equal to any Reletting Expenses (as defined in
Paragraph (ii) of this Section 14.2). Landlord will make all reasonable effort
to rent space and will supply Tenant proof of same.
14.3. 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 and obtain as
liquidated damages by reason of the termination of this lease or re-entry on the
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 when, and
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 14.2. Nothing contained herein shall limit or prejudice the right of
Landlord, in any bankruptcy or reorganization or insolvency proceedings, to
prove for and obtain as damages by reason of such termination or by reason of
disaffirmance of this Lease by Tenant, an amount equal to the maximum allowed by
any bankruptcy or reorganization or insolvency proceedings, or to prove for and
obtain as damages by reason of such termination, an amount equal to the maximum
allowed by any statute or rule of law whether such amount be greater, equal to,
or less than any of the sums referred to in Section 14.2.
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14.4 If Tenant shall default in the keeping, observance or performance of any
covenant, agreement, term, provision or condition herein contained, Landlord,
without thereby waiving such default, may perform the same for the account and
at the expense of Tenant (a) immediately or at any time thereafter and without
notice in the case of emergency or in case such default will result in (i) a
violation of any law, rule or regulation of any Governmental Authority or any
insurance policy maintained by Landlord, or (ii) the imposition of any lien,
charge or encumbrance against all or any portion of the Premises, the Building
or the Property, and (b) in any other case if such default continues for a
period of thirty (30) days after the date of the giving by Landlord to Tenant of
a notice of Landlord's intention to perform the same. All reasonable costs and
expenses incurred by Landlord in connection with any such performance by it for
the account of Tenant and also all costs and expenses, including reasonable
counsel fees and disbursements incurred by Landlord in any action or proceeding
in which Landlord is successful (including any summary dispossess proceeding)
brought by Landlord to enforce any obligation of Tenant and/or right of Landlord
under this Lease or right of Landlord in or to the Premises, shall be paid by
Tenant to Landlord, as Additional Rent, upon demand. Tenant shall have right to
Mediation as defined under Section 31.10 of this Lease.
14.5. No right or remedy conferred upon or reserved to Landlord shall be
exclusive of any other right or remedy, and any right and remedy shall be
cumulative and in addition to every other right or remedy given hereunder or now
or hereafter existing at law. The failure of Landlord to insist at any time upon
the strict performance of any covenant or agreement or to exercise any right,
power or remedy contained in this Lease shall not be construed as a waiver or
relinquishment thereof for the future. A receipt by Landlord of any installment
of Base Rent or Additional Rent with knowledge of the breach of any covenant or
agreement contained in this Lease shall not be deemed a waiver of such breach,
and shall not be deemed to have been waived unless expressed in writing and
signed by Landlord. Landlord shall be entitled to accept less than the full
amount due on account of Base Rent and Additional Rent without thereby waiving
the right to collect the balance due. Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief in case of the violation, or
attempted or threatened violation, of any covenant, agreement, condition or
provision of this Lease or to a decree compelling performance or any covenant,
agreement, condition or provision of this Lease, or to any other remedy allowed
Landlord by law.
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ARTICLE 15
SUBORDINATION AND ESTOPPEL
15.1. This Lease and all rights of Tenant hereunder are subject and subordinate
at all times to all mortgages which may now or hereafter affect the Property
and/or the Building of which the Premises form a part, and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument or subordination shall be
required by any mortgagee. In confirmation of such subordination, Tenant shall
execute promptly any reasonable instrument that Landlord may reasonably request.
Landlord shall obtain from any mortgagee of Landlord whose interests in the
Property are superior to the interests of Tenant, a non-disturbance agreement
reasonably acceptable to mortgagee and Tenant. Tenant further agrees at the
option of the holder of any such mortgage to attorn to the holder of any such
mortgage following the foreclosure of such mortgage of the granting of a deed in
lieu thereof. Notwithstanding any provision of this Section 15.1 to the
contrary, upon notice to Tenant by a Mortgagee, this Lease shall become
superior, in whole or in part, to the lien of any mortgage held on the property
by said Mortgagee.
15.2 Tenant, at Landlord's expense, shall at any time and from time to time
within five (5) days of receipt of written request therefore, execute,
acknowledge and deliver to Landlord an estoppel certificate, in form reasonably
satisfactory to Landlord, certifying (i) that this Lease is unmodified and in
full force and effect (or, if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), (ii) the dates
to which Base Rent and Additional Rent have been paid in advance, if any, (iii)
whether any options granted to Tenant pursuant to the provisions of this Lease
have been exercised, (iv) whether or not to the best knowledge of the signer,
Landlord is in default in performance of any of its obligations under this
Lease, and if so, specifying each such default of which Tenant may have
knowledge, (v) whether Tenant has received notice that it is in default in
performance of any of its obligations under this Lease, and if so, specifying
each such default, and (vi) as to any other matters reasonably requested by
Landlord, it being intended that any such certificate delivered pursuant to this
Section 15.2 may be relied upon by a prospective purchaser of Landlord's
interest or a mortgagee of Landlord's interest or assignee of any mortgage under
Landlord's interest in the Property or any other party which Landlord wishes to
receive said estoppel certificate
15.3 Tenant shall notify Landlord as soon as possible of any name change of the
Tenant.
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ARTICLE 16
DAMAGE BY FIRE OR OTHER CASUALTY
16.1. If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In the
event of any fire or other casualty to the Building, Landlord shall, within
ninety (90) days of such fire or other casualty, provide Tenant with a written
notice (the "Landlord's Notice") in accordance with this Article 16. In case the
Building shall be so damaged that substantial alteration or reconstruction of
the Building shall, in Landlord's sole opinion, be required (whether or not the
Premises shall have been damaged by such casualty), or in the event of any
substantial uninsured loss to the Building or in the event the mortgagee of any
mortgage affecting the Premises does not make insurance proceeds available,
Landlord may at its option terminate the Lease by so notifying Tenant as part of
Landlord's Notice, provided, however, that Tenant shall have the option, upon
Landlord's notification to Tenant of its election not to perform the
reconstruction, (i) to use the insurance proceeds (plus any deductible) to
perform the reconstruction of the Premises, or (ii) to terminate the Lease.
Tenant's election to restore shall nullify Landlord's election to terminate the
Lease. Notwithstanding anything to the contrary contained herein, Landlord's
obligation to repair will not extend to the Tenant Improvements unless Tenant
makes available to Landlord the funds to pay for the cost of such repairs and
Landlord's repairs will not exceed the scope of the work required to be done by
Landlord at the outset of this Lease as set forth in this lease unless damage by
fire or other casualty is caused by the Landlord negligence or other tenants,
Tenant acknowledging that Landlord does not have responsibility for actions of
other Tenants that violate their lease or applicable laws or insurance
regulations. Furthermore, should the damage or destruction occur during the last
year of the Term, then notwithstanding any contrary provision contained herein,
Landlord will have the option of not repairing the Demised Premises and
terminating this Lease. If Landlord does not elect to terminate the Lease,
Landlord's Notice shall specify whether in Landlord's judgment, the Premises or
those portions of the Building affecting the use and enjoyment of the Premises
can be reconstructed within one hundred eighty (180) days from the occurrence of
such fire or casualty. If Landlord's Notice indicates that such reconstruction
of the Premises or those portions of the Building affecting the use and
enjoyment of the Premises shall exceed one hundred eighty (180) days and
Landlord does not elect to terminate the Lease as provided in Landlord's Notice,
Tenant shall have the right, to be exercised within fifteen (15) days after
receipt of Landlord's Notice, to elect, by notice to Landlord, to cancel this
Lease, (hereinafter called "Tenant's Notice"). In the event the Lease is not
terminated by either Landlord or Tenant as hereinabove permitted, Landlord
shall, subject to Tenant Delay and Excusable Delay, commence and proceed with
reasonable diligence to restore the portion of the Building affecting the use
and occupancy of the Premises. If Landlord indicates in its Notice that the
portions of the Building affecting the use and occupancy of the Premises can be
restored within one hundred eighty (180) days and such portions of the Building
are not restored within one hundred eighty (180) days after Landlord's
undertaking such restoration (except for Tenant Delay and Excusable Delay), or
if Landlord in Landlord's Notice indicates that it will take a period longer
than one hundred eighty (180) days to restore said portion of the Building and
said portions are not restored within such longer period (except for Excusable
Delay), then this Lease and the Term hereof may at the election of Tenant be
terminated by notice in writing from Tenant to Landlord, providing Tenant serves
such notice on Landlord within fifteen (15) days
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after expiration of the one hundred eighty (180) day restoration period or such
longer period, if applicable, which notice shall be effective thirty (30) days
after the giving of such notice if the Premises have not been restored by that
date. If the Premises have been restored within said thirty (30) day period from
the date the notice is given, the Lease shall continue in full force and effect.
If the Lease is terminated by either Landlord or Tenant as above permitted,
Landlord and Tenant thereafter shall have no further obligation or claim, one to
the other, this Lease shall be deemed null and void and of no further force and
effect. Landlord shall not be liable for any inconvenience, loss of business or
annoyance to Tenant or damage to the business of Tenant resulting in any way
from such damage or the repair thereof, except that Landlord shall allow Tenant
a fair diminution of Base Rent and Additional Rent during the time and to the
extent that the Premises is unfit for occupancy. During the period of any
reconstruction undertaken by Landlord, Tenant, at Tenants expense, shall be
responsible to remove its personal property, fixtures and equipment from the
damaged area prior to Landlord's institution of reconstruction work. Landlord
shall have no liability to Tenant with respect to any damage, loss or theft of
any such personal property, fixtures and equipment not so removed. In addition,
Landlord's obligation to restore the Building within the time frames set forth
in this Article shall mean that (i) Landlord's work has been substantially
completed except for details of construction, decoration and mechanical
adjustments which are minor in character, the noncompletion of which will not
materially interfere with Tenant's use and enjoyment of the Premises; (ii) all
of the Building's sanitary, electrical, heating, air/conditioning, mechanical
and other systems, to the extent they serve the Premises are completed and in
good order and operating condition except for mechanical adjustments which are
minor in character; and (iii) Landlord shall have obtained (a) a certificate of
approval for the Premises or (b) all requirements to obtain a certificate of
approval or temporary or permanent certificate of occupancy for the Premises,
other than the completion of Tenant Installations therein, shall have been
satisfied. (iv) provided that Landlord diligently prosecutes such repair and
restoration, Landlord will have no liability if the time for repair or
restoration extends beyond the (180) day period.
16.2. Notwithstanding any of the foregoing provisions to the contrary,
Landlord's obligation to repair the damage and restore and rebuild the Building
and/or the Premises pursuant to this Article shall be conditioned on such
restoration being then lawfully permitted and Landlord being granted all
necessary approvals from the Governmental Authorities.
ARTICLE 17
MUTUAL WAIVER OF SUBROGATION
17.1. Landlord and Tenant shall each secure an appropriate clause, or an
endorsement upon any policy of insurance in force, covering the Property, the
Building, or any personal property, fixtures and equipment or Tenant
installations located therein or thereon, including, without limitation,
casualty, liability and business interruption policies in force, pursuant to
which the respective insurance companies waive subrogation or permit the
insured, prior to any loss, to agree with a third party to waive any claim it
might have against said third party. The waiver of subrogation or permission for
waiver of any claim hereinbefore referred to shall extend to the agents of each
party and also extend to all other persons and entities occupying or using the
Premises in accordance with the terms of this Lease. In the event that either
Landlord or Tenant shall be unable at any time to obtain one of the provisions
referred to above in any of its insurance policies, Landlord or Tenant, as the
case may be, shall promptly notify the other.
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17.2. Subject to the foregoing provisions of this Article 17, and insofar as may
be permitted by the terms of the insurance policies carried by it, and
notwithstanding any provision of this Lease to the contrary, each party hereby
releases the other and its partners, agents and employees (and in the case of
Tenant, all other persons and entities occupying or using the Premises in
accordance with the terms of this Lease) with respect to any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damages or destruction with respect to its property by fire or other
casualty (including rental value or business interruption, as the case may be)
occurring during the Term covered by (but only to the extent of the limits of
coverage of) such insurance policies.
ARTICLE 18
CONDEMNATION
18.1. If the whole or substantially the whole of the Building or the Premises
should be taken for any public or quasi-public use, by right of eminent domain
or otherwise, or should be sold in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the Building or the Premises is thus taken or sold,
Landlord (whether or not the Premises is affected thereby) may terminate this
Lease by giving written notice thereof to Tenant in which event this Lease shall
terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. In the event that the
Premises is not affected by the taking, then Landlord may terminate this Lease
only in the event that the Building requires demolition or substantial
rehabilitation. If twenty percent (20%) or more of the Initial Premises,
Additional Premises, Premises, Common Areas or Tenant's parking allocation
(unless alternative parking spaces are provided) is thus taken or sold, Tenant
may terminate this Lease by giving written notice thereof to Landlord in which
event this Lease shall terminate as of the date when physical possession of such
portion of the Premises or parking area is taken by the condemning authority. If
this Lease is not so terminated upon any such taking or sale, the Base Rent
payable hereunder shall be equitably adjusted by multiplying the annual Base
Rent then in effect by a fraction, the numerator of which is the number of
square feet of Rentable Area of the Premises after the taking and the
denominator of which is the number of rentable square feet in the Premises prior
to such taking, and Landlord shall, to the extent Landlord deems feasible,
restore the Building and the Premises to substantially their former condition,
but such work shall not exceed the scope of the work done by Landlord in
originally constructing the Building and installing the Tenant Improvements in
the Premises. All amounts awarded upon a taking of any part or all of the
Property shall belong to Landlord, and Tenant shall not be entitled to and
expressly waives all claim to any such compensation including, without
limitation, any claim for the value of the unexpired portion of this Lease.
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18.2. Tenant may make an independent claim in such proceedings for its
personalty, trade fixtures and moving expenses; provided, however, that any such
claim shall in no way affect any portion of any award which the Landlord or the
holder of any mortgage affecting the Premises or the Property shall be entitled
to receive, except such award specifically allocated to Tenant.
ARTICLE 19
CHANGES SURROUNDING PROPERTY
19.1. Landlord hereby reserves to itself and its successors and assigns the
following rights (all of which are consented to by Tenant) and the Lease shall
not be affected or impaired thereby: (i) to change any sidewalk, alley or street
adjacent to or around the Building, (ii) to convey or dedicate portions of the
Property on which neither the Building nor parking areas are located, for road
improvement purposes, (iii) to construct additions to the Building or other
improvements upon the Property (the cost of construction of which shall not be
included in Operating Expenses), (iv) to subdivide the Property into separate
lots, (v) to change the street address and/or name of the Building, provided
such rights shall not materially interfere with Tenant's business and/or use of
the Premises.(vi)make any alteration to the Common Area(s) that, in the sole
opinion of the Landlord, are necessary for the benefit of Landlord, Tenant, and
other Tenants. This 19.1. (vi) shall exclude the Premises of Tenant except as
otherwise contained in this Lease.
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ARTICLE 20
NOTICES
20.1. Any notice, consent, request or other communication (collectively
"Notices") given pursuant to this Lease must, unless otherwise provided herein,
be in writing, and may, unless otherwise in this Lease expressly provided be
given or be served by depositing the same in the United States mail, postpaid
and certified and addressed to the party to be notified, with return requested
or by overnight express mail with a reliable overnight courier, or by delivery
of the same in person, or by prepaid telegram, when appropriate, addressed to
the party to be notified, which address for Landlord shall be at Landlord's
address as hereinbefore set forth with a copy to the designated Agent of the
Landlord. Notices delivered by hand shall be effective upon receipt, and if such
delivery is rejected, such rejection of delivery shall be considered receipt.
Notices by mail (except overnight express mail) shall be effective three (3)
days after the date mailed. Notices by overnight express mail shall be effective
one (1) day after delivery to the overnight mail service. Either party may at
any time change its address for notices hereunder by delivering or mailing, as
aforesaid, to the other party a notice stating the change and setting forth the
changed address.
ARTICLE 21
NO WAIVER
21.1. No waiver by Landlord of any breach by Tenant of any of the terms,
covenants, agreements or conditions of this Lease shall be effective unless such
waiver is contained in a writing subscribed by Landlord and no such waiver shall
be deemed to constitute a waiver of any succeeding breach thereof, or a waiver
of any breach of any of the other terms, covenants, agreements and conditions
herein contained.
21.2. No act or thing done by Landlord or Landlord's agents during the Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by
Landlord.
21.3. The receipt by Landlord of the Base Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Base Rent or a lesser amount of the Additional Rent then
due shall be deemed to be other than a payment on account of the earliest
stipulated amount then due, nor shall any endorsement or statement on any check
or payment as Base Rent or Additional Rent be deemed an accord and satisfaction
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Base Rent or Additional Rent or pursue any
other remedy provided in this Lease.
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ARTICLE 22
LANDLORD'S LIABILITY
22.1 Landlord shall not be liable to Tenant or Tenant's Visitors for any damage,
injury, loss, compensation or claim based on, arising out of, or resulting from
any cause subject to abatement rights provided herein: repairs to any portion of
the Premises or the Building; interruption in the use of the Premises; any
accident or damage resulting from the use or operation by Tenant or Tenant's
Visitor. Tenant shall not be liable to Landlord for any damage, injury, loss,
compensation or claim based on, arising out of, and resulting from any cause or
damage from the Landlord or other tenant and their visitors.
22.2. Except for claims related to abatement of Base Rent or Additional Rent
provided herein, and except for any damage, injury, loss, compensation or claim
caused by the willful misconduct or negligence of Landlord or its agents,
servants or employees, as an express inducement to Landlord to enter into this
Lease, and notwithstanding any provisions of this Lease to the contrary, Tenant
agrees that any goods, personal property or personal effects, including
removable trade fixtures used or placed by the Tenant or its employees in or
about the Premises or Building, shall be at the sole risk of Tenant, and
Landlord shall not in any manner be held responsible or liable therefore; nor
shall Landlord have any liability to Tenant for any claims based on the
interruption of, or loss to, Tenant's business. Furthermore, Landlord shall have
no liability to Tenant, its employees, agents, invitees or licensees for losses
due to theft or burglary, or for damage done by unauthorized persons on the
Premises, and Landlord shall not be required to insure against any such losses
provided the Landlord uses reasonable effort and care to secure the building
against theft, but is not liable for the actions of third parties beyond
Landlord's control or any party in violation of Rules and Regulations.
22.3. Anything in this agreement to the contrary notwithstanding, providing such
cause is not due to the willful act or neglect of the Landlord, the Landlord
shall not be deemed in default with respect to the performance of any of the
terms, covenants, and conditions of this Lease if same shall be due to any
strike, lockout, civil commotion, war-like operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, inability to obtain any material, service of financing, ice, snow,
rain or muddy conditions, through Act of God or other cause beyond the control
of the Landlord.
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ARTICLE 23
INDEMNIFICATION
23.1. Subject to the waiver set forth in Article 17, Tenant hereby indemnifies
and holds Landlord harmless from all expenses, costs (including reasonable
attorney fees and disbursements), loss, liability and claims based on, arising
out of or resulting from: (i) any act, omission or neglect of Tenant or Tenant's
Visitors or the use of the Premises, Common Areas (or any part thereof) by
Tenant, (ii) any breach by Tenant of its obligations under this Lease and (iii)
any Tenant Installation, Alteration, or other work performed by Tenant in or
about the Premises, except where due to the gross negligence or willful
misconduct of Landlord. The Landlord hereby indemnifies the Tenant and hold
Tenant harmless from all expenses, costs (including reasonable attorney fees and
disbursements), loss, liability and claims based on, arising out of or resulting
from: (iv) any act, omission or neglect of Landlord, (v) any breach by Landlord
of its obligations under this Lease.
23.2. The indemnity set forth in this Article 23 shall survive the expiration or
termination of this Lease.
ARTICLE 24
TENANT'S INSURANCE
24.1. Tenant, at its own expense will maintain with admitted insurers authorized
to do business in the State of New Jersey and which are rated A + XIV or
equivalent in Best's Key Rating Guide, or any successor thereto (or if there is
none, a rating organization having a national reputation) commercial general
liability (in the broadest form then available in New Jersey) against claims for
bodily injury, personal injury, death or property damage occurring on, in or
about the Premises or as a result of ownership of facilities located on the
Premises in amounts not less than $5,000,000.00, per occurrence/per
location/aggregate for bodily injury, personal injury or death, $5,000,000.00
with respect to any one occurrence per location, and $3,000,000.00 with respect
to all claims for property damage with respect to any one occurrence per
location with an aggregate of $3,000,000.00. From time to time during the Term
such limits shall be increased to the prevailing level customarily carried with
respect to similar properties in Bergen County, New Jersey and the surrounding
area. Tenant shall be responsible to maintain casualty insurance on all of its
goods, personal property or effects, including removable trade fixtures located
in the Premises.
24.2. The policy of insurance required to be maintained by Tenant pursuant to
Section 24.1 shall name as the insured parties Landlord, Tenant, Landlord's
managing agent, and any mortgagee of Landlord, shall be reasonably satisfactory
to Landlord and shall (a) provide for the benefit of such holder or holders,
that thirty (30) days' prior written notice of suspension, cancellation,
termination, modification, non renewal or lapse or material change of coverage
shall be given to all insured parties and that such insurance shall be given to
all insured parties and that such insurance shall not be invalidated by any act
or neglect of Landlord or Tenant or any owner of the Premises, nor by any
foreclosure or other proceedings or notices thereof relating to the Premises or
any interest therein, nor by occupation of the Premises for purposes more
hazardous than are permitted by such policy, (b) not contain a provision
relieving the insurer thereunder of liability for any loss by reason of the
existence of other policies of insurance covering the Premises against the peril
involved, whether collectible or not, and, (c) include a contractual liability
endorsement evidencing coverage of Tenant's obligation to indemnify Landlord
pursuant to Section 23 hereof.
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24.3. Within five (5) days after the Commencement Date, Tenant shall deliver to
Landlord original or duplicate policies or certificates of the insurers
evidencing all the insurance which is required to be maintained hereunder by
Tenant certifying that all requirements set forth herein have been complied with
(including, without limitation, a waiver of each insurer's rights of subrogation
pursuant to Section 17.1, the naming of the insured required hereunder and the
obligation of each insurer to give the notice required hereunder) and, within
thirty (30) days prior to the expiration of any such insurance, other original
or duplicate policies or certificates evidencing the renewal of such insurance.
These policies or certificates of the insurers shall be supplied to Landlord
upon each renewal of same, and Landlord may require Tenant to produce proof of
policies or certificates of the insurers yearly or whenever in the sole opinion
of Landlord such evidencing of policies or certificates of the insurers is
necessary.
24.4. Landlord shall, as part of Operating Expenses, obtain any and all
insurance coverage reasonably necessary or appropriate in connection with the
use and operation of the Building, which shall include, but not be limited to,
fire, liability and any and all other insurance as Landlord or any mortgagee of
Landlord may require, and Tenant shall be named as additional insured under such
policy or policies and provide Tenant with copies of such insurance certificates
timely.
ARTICLE 25
CONSTRUCTION LIENS
25.1. If, because of any act or omission of Tenant, any construction lien,
mechanics' or other lien, charge or order for the payment of money or otherwise
shall be filed against the Property, the Premises or the Building (whether or
not such lien, charge or order is valid or enforceable as such), Tenant, at
Tenant's expense, shall cause it to be cancelled or discharged of record by
bonding or otherwise within ninety (90) days after such filing, and Tenant
shall, in any event, indemnify and save Landlord harmless against and shall pay
all costs, expense, losses, fines and penalties, including, without limitation,
attorney's fees and disbursements, related thereto or resulting there from.
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ARTICLE 26
DEFINITION OF LANDLORD
26.1. The term "Landlord" as used in this Lease means only the owner for the
time being of the Building. In the event of any transfer of title to the
Building, the transferring Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder except for
liabilities which arose prior to such transfer and this Lease shall be deemed
and construed as a covenant running with the land without further agreement
between the parties or their successors in interest, provided that the
transferee assumes in writing all of the obligations of the Landlord under this
Lease.
ARTICLE 27
DEFINITION OF TENANT
27.1. The term "Tenant" as used in this Lease includes Tenant, its successors
and permitted assigns and any person or entity claiming by, through or under
Tenant. Any obligation of or restriction on Tenant imposed by this Lease shall
apply equally to any subtenant or other occupant of the Premises or any portion
thereof.
ARTICLE 28
PERSONAL LIABILITY
28.1. Anything in this Lease to the contrary notwithstanding, the liability of
Landlord to Tenant in the performance by Landlord of its obligations under this
Lease and for any default by Landlord hereunder shall be limited to the interest
of Landlord in the Property and Tenant agrees to look solely to Landlord's
interest in the Property for the recovery of any judgment from Landlord, it
being intended that neither Landlord nor Landlord's agents, shareholders,
officers, directors, partners, principals (disclosed or non-disclosed) or
affiliates shall be personally liable for any judgment or deficiency.
ARTICLE 29
ISRA COMPLIANCE
29.1. Tenant agrees to comply with all applicable environmental laws, rules and
regulations, including but not limited to, the New Jersey Industrial Site
Recovery Act (N.J.S.A. 13:1K-6 et seq.) ("ISRA"). Tenant represents to Landlord
that it shall not conduct any activity in the Premises which shall cause it to
be considered an "industrial establishment" under ISRA, or otherwise subject the
Premises to the requirements of compliance with ISRA and Tenant shall not
conduct any operations that shall subject the Premises to ISRA.
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29.2. If Tenant is subject to ISRA, Tenant hereby agrees to execute such
documents as Landlord reasonably deems necessary and to make such applications
as Landlord reasonably requires to assure compliance with ISRA; Tenant will
provide Landlord within ten (10) business days of Landlord's request for the
same, an affidavit in support of a request for a nonapplicability letter by
Landlord in the form required under ISRA. Tenant shall bear its proportionate
share of all costs and expenses incurred by Landlord associated with any
required ISRA compliance resulting solely from Tenant's use of the Premises,
including, but not limited to, state agency fees, engineering fees, cleanup
costs, filing fees, and suretyship expenses. As used in this Lease, ISRA
compliance shall include applications for determinations of nonapplicability by
the appropriate governmental authority upon the "closure, terminations or
transfer" of Tenant's operations at the Premises. The foregoing undertaking
shall survive the termination or sooner expiration of the Lease and surrender of
the Premises and shall also survive sale, or lease or assignment of the Premises
by Landlord. If Tenant is subject to ISRA, Tenant shall immediately provide
Landlord with copies of all written correspondence, reports, notices, orders,
findings, declarations and other materials pertinent to Tenant's compliance with
the New Jersey Department of Environmental Protection's ("DEP") requirements
under ISRA as they are issued or received by the Tenant.
29.3. Tenant shall not generate, store, manufacture, refine, transport, treat,
dispose of, or otherwise permit to be present on or about the Premises, any
Hazardous Substances in violation of any laws. As used herein, Hazardous
Substances shall be defined as any "hazardous chemical", "hazardous substance"
or similar term as defined in the Comprehensive Environmental Responsibility
Compensation and Liability Act, as amended (42 U.S.C. 9601, et seq.), the New
Jersey Spill Compensation and Control Act, as amended, (N.J.S.A. 58:10-23.11b,
et seq.), ISRA, any rules or regulations promulgated thereunder, or in any other
applicable federal, state or local law, rule or regulation dealing with
environmental protection, as well as asbestos or other irritants and regulated
substances.
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ARTICLE 30
SECURITY DEPOSIT
30.1. Simultaneously with the execution of this Lease, Tenant will deposit with
Landlord the Security Deposit (which will not bear interest to Tenant unless
required to do so by any provision of law) as security for Tenant's faithful and
timely payment and performance by Tenant of all of Tenant's obligations,
covenants, conditions and agreements under this Lease. Within a reasonable time
after the expiration of the Term, after calculation of adjustments to Tenant's
Operating Expenses for the last Lease Year, Landlord will return the Security
Deposit to Tenant, less such portion thereof as Landlord has utilized to make
good any failure by Tenant to comply with any of Tenant's obligations,
covenants, conditions or agreements hereunder.
30.2. In the event of any default by Tenant hereunder, Landlord has the right,
but is not obligated, to apply all or any portion of the Security Deposit to
cure each default, in which event Tenant will, upon demand, promptly deposit
with Landlord the amount necessary to restore the Security Deposit to its
original amount.
30.3. The Security Deposit will be held by Landlord and may be commingled with
its other funds. In the event of sale or transfer of Landlord's interest in the
Building, Landlord has the right to transfer the Security Deposit to such
purchaser or transferee, in which event Landlord will upon such transfer, be
released from all liability to Tenant for the return of the Security Deposit.
Tenant will look only to the new landlord for the return of the Security
Deposit.
ARTICLE 31
MISCELLANEOUS
31.1. Entire Agreement. This Lease contains the entire agreement between the
parties, and any attempt hereafter made to change, modify, waive, discharge or
effect an abandonment of it in whole or in part shall be void and ineffective
unless in writing and signed by the party against whom enforcement of the
change, modification, waiver, discharge or abandonment is sought.
31.2. Jury Trial Waiver. To the extent permitted by law, Landlord and Tenant do
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matter whatsoever arising
out of or in any connection with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, and/or any claim, injury or
damage, or any emergency or statutory remedy.
31.3. Broker. Not Applicable
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31.4. Severability. If any term or provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby and all other terms and
provisions of this Lease shall be valid and enforced to the fullest extent
permitted by law.
31.5. Interpretation.
(a) Whenever in this Lease any words of obligation or duty are used,
such words or expressions shall have the same force and effect as
though made in the form of covenants.
(b) Words of any gender used in this Lease shall be held to include
any other gender, and words in the singular number shall be held
to include the plural, when the sense requires
(c) The headings and captions contained in this Lease are inserted for
convenience of reference only, and are not to be deemed part of or
to be used in construing this Lease.
(d) The covenants and agreements herein contained shall, subject to
the provisions of this Lease, bind and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its successors
and permitted assigns except as otherwise provided herein.
(e) This Lease has been executed and delivered in the State of New
Jersey and shall be construed in accordance with the laws of the
State of New Jersey.
(f) Landlord has made no representations or promises with respect to
the Premises, the Building or the Property, except as expressly
contained herein.
31.6. No Offer, Option, etc. The submission of this Lease to Tenant for
examination does not constitute by Landlord a reservation of, or an option to
Tenant for, the 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.
31.7. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by Landlord, Landlord shall not be liable or responsible
for, and such period of time shall be extended by, any delays due to Tenant
Delay or Excusable Delay. Whenever a period of time is herein prescribed for the
taking of any action by Tenant, which action does not involve: (i) the payment
of money or other monetary obligations on the part of Tenant; or (ii) furnishing
to Landlord timely notice of the exercise by Tenant of the option to renew this
Lease as required by Section 31.13, Tenant shall not be liable or responsible
for, and such period of time in which Tenant is obligated to perform shall be
extended by any delays due to Excusable Delay.
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31.8. Recording. This Lease shall not be recorded, except that upon the request
of either party, the parties shall execute in recordable form, a short form
memorandum of this Lease, provided that such memorandum shall not contain any of
the specific rental terms set forth herein. Such memorandum may be recorded in
the lands records of the Bergen County Clerk's office and the party desiring
such recordation shall pay all recording fees. Upon the expiration or earlier
termination of this Lease, Tenant shall execute and deliver to Landlord, in
recordable form, an instrument which terminates of record the memorandum of
Lease.
31.9. Financial Information. Upon Landlord's request, Tenant shall provide
Landlord with a copy of its financial statements for such year audited by an
independent certified public accountant. Landlord may provide such financial
statements to its consultants, lenders and investors, but otherwise shall not
provide the financial statements to third parties without the prior consent of
Tenant.
31.10. Mediation. The parties, at their mutual option, may settle any
controversy or claim arising out of or relating to this Lease, or breach thereof
by Mediation. Mediation shall occur within sixty (60) days of one party's
written request. The parties agree that they shall make a good faith effort to
resolve matters through Mediation, but both parties recognize that Mediation is
not binding and does not preclude either party from seeking other appropriate
legal recourse not limited to filing of suit in the appropriate jurisdiction if
mediation is unsuccessful.
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ARTICLE 32
INSERTS
Listed below are particulars of this Lease referred to in other
Sections hereof:
32.01 BASE RENT: SET FORTH IN ARTICLE 1.
32.02 BROKER: NONE
32.03 BUILDING: 190-200-210 SYLVAN AVENUE, ENGLEWOOD CLIFFS, NJ
32.04 COMMENCEMENT DATES: FOR 210 SYLVAN AVENUE:
AUGUST 1, 2005
FOR 200 SYLVAN AVENUE:
AUGUST 1, 2005; POSSESSION AS SOON AS POSSIBLE
FOR 190 SYLVAN AVENUE:
AUGUST 1, 2005:
32.05 RENTABLE AREA OF THE BUILDING: 56,000 SQUARE FEET
32.06 RENTABLE AREA OF THE PREMISES: 12,380
32.07 SECURITY DEPOSIT: Maintain CURRENT SECURITY OF APPROXIMATELY
$6,500.00
32.08 TENANT'S PROPORTIONATE SHARE: shall mean Tenant's Proportionate
Share of Gas and Water utility expenses for 200 Sylvan Avenue, 1,780 square
feet, or 17.8%. (1,780 square feet divided by 10,000 square feet.)
32.09 NUMBER OF CONSECUTIVE MONTHS IN TERM: 60
32.10 JANITORIAL: TENANT IS SOLELY RESPONSIBLE FOR ITS OWN INTERIOR
JANITORIAL; CLEANING CONTRACTOR MUST BE APPROVED BY LANDLORD AS PER THE APPROVED
CONTRACTOR LIST ATTACHMENT. CLEANING CONTRACTOR MUST BE MAINTAINED BY LANDLORD
ON THE LANDLORD APPROVED LIST. IF CONTRACTOR IS NOT MAINTAINED ON THIS LIST,
UPON REASONABLE NOTICE CONTRACTOR MUST BE REPLACED. REPLACEMENT NOT TO ACCEDE
NINETY (90) DAYS (SEE RULES AND REGULATIONS) Landlord will not unreasonably
withhold approval.
32.11 BASE TAX YEAR: 2005
32.12 BASE OPERATING YEAR: 2005
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32.13 OPTION: FIVE (5) YEAR OPTION TO RENEW LEASE, BASE UPON (I) FAIR
MARKET RATES AT THE TIME OR RENEWAL (II) ADJUSTMENTS AS CONTAINED IN ARTICLE 1
OF THIS LEASE USING 2005 AS THE BASE YEAR FOR THE ADJUSTMENT (III) EITHER (I) OR
(II), SHALL BE APPLIED IN THE SOLE DISCRETION AND CHOICE OF THE LANDLORD AS TO
THE ADJUSTMENT METHOD TO BE USED.
32.14 INSURANCE: $5,000,000.00for personal injury (including death) per
person; $5,000,000.00 for personal injury (including death) per occurrence;
$3,000,000.00for property damage.
32.15 Rider to Lease dated August 1, 2005 shall be incorporated into
this Lease and be considered a part of the Lease.
PRESENT TENANT
ASTA FUNDING, INC.
ARTICLE 33
SUCCESSORS & ATTACHMENTS
The Exhibits and other Attachments to this Lease are hereinafter
enumerated; and the terms and conditions of this Lease and Attachments shall
inure to and be binding upon the parties hereto and their respective heirs or
successors and assigns.
ENUMERATION OF ATTACHMENTS
--------------------------
EXHIBIT A: Site Plan
EXHIBIT B: Floor Plan indicating Premises: to be provide by Tenant
EXHIBIT C: Rules and Regulations (see Article 7)
EXHIBIT D: Landlord Services
EXHIBIT E: Guidelines for Tenants retaining Consultants and Contractors
EXHIBIT F: Contractor List
(Signatures to follow on the next page)
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date first above written.
LANDLORD:
ATTEST:
By: /s/ Bjorn R. Johnson
- ----------------------- --------------------------
Name: Bjorn R. Johnson
Title: Member
ATTEST:
By: /s/ John A. Johnson
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Name: John A. Johnson
Title: Member
TENANT:
ATTEST
By: /s/ Gary Stern
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Name: Gary Stern
Title: President & CEO
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EXHIBIT A
SITE PLAN
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EXHIBIT B
FLOOR PLANS INDICATING PREMISES
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EXHIBIT C
RULES AND REGULATIONS
1. Tenant shall not obstruct or permit its agents, clerks or servants
to obstruct, in any way, the sidewalks, entry passages, corridors, halls,
stairways or elevators of the Building, or use the same in any other way than as
a means of passage to and from the offices of Tenant; bring in, store, test or
use any materials in the Building which could cause a fire or an explosion or
produce any fumes or vapor; make or permit any improper noises in the Building;
smoke in the elevator; throw substances of any kind out of the window or doors,
or down the passage of the Building, or in the halls or passageways; sit on or
place anything upon the window sills; or clean the windows.
2. Water-closets and urinals shall not be used for any purpose other
than those for which they were constructed; and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
3. The windows, doors, partitions and lights that reflect or admit
light into the halls or other places of the Building shall not be obstructed. No
signs, advertisements or notices shall be inscribed, painted, affixed or
displayed in, on, upon or behind any windows, except as may be required by law
or agreed upon by the parties; and no sign, advertisement or notice shall be
inscribed, painted or affixed on any doors, partitions or other part of the
inside of the Building, without the prior written consent of Landlord. If such
consent be given by Landlord, any such sign, advertisement, or notice shall be
inscribed, painted or affixed by Landlord, or a company approved by Landlord,
but the cost of the same shall be charged to and be paid by Tenant, and Tenant
agrees to pay the same promptly, on demand.
4. Not Used.
5. When electric wiring of any kind is introduced, it must be connected
as directed by Landlord (see Base Lease), and no stringing or cutting of wires
will be allowed, except with the prior written consent of Landlord, and shall be
done only by contractors approved by Landlord. No tenant shall lay linoleum or
other similar floor covering so that the same shall be in direct contact with
the floor of the Premises; and if linoleum or other similar floor covering is
desired to be used, an interlining of builder's deadening felt shall be first
affixed to the floor by a paste or other material, the use of cement or other
similar adhesive material being expressly prohibited.
6. Landlord shall have the right to prescribe the weight, size and
position of all safes and other bulky or heavy equipment and all freight brought
into the Building by any tenant; and also the times of moving the same in and
out of the Building; and all such moving must be done under the supervision of
Landlord. Landlord will not be responsible for loss of or damage to any such
equipment or freight from any cause; but all damage done to the Building by
moving or maintaining any such equipment or freight shall be repaired at the
expense of Tenant. All safes shall stand on a base of such size as shall be
designated by the Landlord. The Landlord reserves the right to inspect all
freight to be brought into the Building and to exclude from the Building all
freight which violates any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part.
-42-
7. No machinery of any kind or articles of unusual weight or size will
be allowed in the Building, without the prior written consent of Landlord.
Business machines and mechanical equipment shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance.
8. No additional lock or locks shall be placed by Tenant on any door in
the Building, without prior written consent of Landlord. Two keys will be
furnished Tenant by Landlord; two additional keys will be supplied to Tenant by
Landlord, upon request, without charge; any additional keys requested by Tenant
shall be paid for by Tenant. Tenant, its agents and employees, shall not have
any duplicate key made and shall not change any locks. All keys to doors and
washrooms shall be returned to Landlord at the termination of the tenancy, and,
in the event of loss of any keys furnished, Tenant shall pay Landlord the cost
thereof.
9. Tenant shall not employ any person or persons other than Landlord's
contractors or contractors on the 'Landlords Contractors Approved List'
including janitors and/or cleaning services for the purpose of work on, in or
about the Premises, without prior written consent of Landlord. Upon written
notice by Landlord, Tenant shall have ninety (90) days to replace janitors
and/or cleaning services. Any other contractors not on 'Landlords Contractors
Approved List' or removed from said List by written Notice from Landlord to
Tenant shall be immediately terminated and required to remove all personnel,
materials and contractor tools and/or property within seventy-two (72) hours of
written notice from Landlord. All work by said contractors shall cease
immediately upon receipt of Notice from Landlord. Landlord shall not be
responsible to Tenant for any loss of property from the Premises however
occurring, or for any damage done to the effects of Tenant by such contractors
or any of its employees, or by any other person or any other cause. Landlord
requires that insurance certificates evidencing contractor's coverage against
casualty and liability as well as a signed document from Tenant agreeing to
indemnify, save harmless and defend Landlord from any and all claims, demands,
causes of action, costs, fees and losses of any nature whatsoever arising out of
Tenant's undertaking to improve or alter the demised premises be provided before
commencement of work by any contractor or janitors and/or cleaning services.
10. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
11. The requirements of Tenant will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work for Tenant or do anything outside of their regular duties,
unless under special instructions from the office of Landlord.
12. The Premises shall not be used for lodging or sleeping purposes,
and cooking therein is prohibited.
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13. Tenant shall not conduct, or permit any other person to conduct,
any auction upon the Premises; manufacture or store goods, wares or merchandise
upon the Premises, without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct of
its business; permit the Premises to be used for gambling; make any unusual
noises in the Building; permit to be played any musical instrument in the
Premises; permit to be played any radio, television, recorded or wired music in
such a loud manner as to disturb or annoy other tenants; or permit any unusual
odors to be produced upon the Premises. Tenant shall not occupy or permit any
portion of the Premises leased to him to be occupied as an office for a public
stenographer or typist, or for the possession, storage, manufacture, or sale of
intoxicating beverages, narcotics, tobacco in any form, or as a barber or
manicure shop.
14. Landlord reserves the right to exclude from the Building during
such periods agreed upon by Landlord and Tenant all persons who do not present a
pass to the Building signed by Tenant. Each tenant shall be responsible for all
persons for whom he issues such pass and shall be liable to Landlord for all
acts of such persons. There exists at this time no current requirement for such
passes on the part of Landlord, but Landlord may institute same when, in the
sole opinion and discretion of the Landlord, such a pass system becomes
necessary for the common good of all Tenants and the Building.
15. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Premises,
without the prior written consent of Landlord. Such curtains, blinds and shades
must be of a quality, type, design, and color, and attached in a manner approved
by Landlord.
16. Canvassing, soliciting and peddling in the Building are prohibited,
and Tenant shall cooperate to prevent the same.
17. There shall not be used in the Premises or in the Building, either
by others in the delivery or receipt of merchandise, any hand trucks except
those equipped with rubber tires and side guards, and no hand trucks will be
allowed in passenger elevators.
18. Each tenant, before closing and leaving the Premises, shall ensure
that all windows are closed and all entrance doors locked.
19. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
20. Landlord hereby reserves to itself any and all rights not granted
to Tenant hereunder, including, but not limited to, the following rights which
are reserved to Landlord for its purposes in operating the Building:
(a) the exclusive right to the use of the name of the Building
for all purposes, except that Tenant may use the name as its business address
and for no other purpose;
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(b) the right to change the name or address of the Building,
without incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the
exterior of the Building;
(d) the exclusive right to use or dispose of the use of the
roof of the Building;
(e) the right to limit the space on the directory of the
Building to be allotted to Tenant;
(f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
21. Tenant shall list all articles to be taken from the building (other
than those taken out in the usual course of business of Tenant) on Tenant's
letterhead, or a blank which will be furnished by Landlord. Such list shall be
presented at the office of the Building for approval before such articles are
taken from the Building or accepted by any elevator operator.
22. The Tenant, its employees, agents, representatives, invitees and
business visitors shall comply promptly and courteously with the directions of
any building security personnel hired by Landlord
23. Landlord reserves the right to establish `Designated Smoking Areas'
in or about the Premises and Building in the sole option and at the discretion
of the Landlord. No Smoking is permitted inside the Premises or in any part of
the Building at any time except with written permission of the Landlord.
Landlord may at its sole discretion require Tenant to police and clean the
`Designated Smoking Areas' or perform same at reasonable cost and charge Tenant
for any expense incurred by Landlord. Landlord will provide smoking receptacles
at Landlords sole cost and expense that shall not be used for disposal of
anything but smoking materials, and for no other purpose.
24. A. The Tenant agrees to indemnify and hold Landlord harmless
from any and all liability, loss, cost, damage or expense arising out of or
occasioned by violation by Tenant of existing law as it exists from time-to-time
during the term hereof, resulting from Tenant's use or occupancy of the
premises. Without limiting the generality of the foregoing, this indemnity shall
include any liability the Landlord may incur due to Tenant's failure to comply
with the Industrial Site Recovery Act of New Jersey ("ISRA"). The Landlord
agrees to indemnify and hold Tenant harmless from any and all liability, loss,
cost, damage or expense arising out of occasioned violation by Landlord of
existing law as it exists from time-to-time during the term thereof, resulting
from Landlord's management of the premises. Without limiting the generality of
the foregoing, this indemnity shall include any liability the Tenant may incur
due to Landlord's failure to comply with ISRA. This indemnity shall survive
termination of this Lease.
B. The Tenant shall comply with the Zoning Ordinance of the
Borough of Englewood Cliffs, including without limitation the portion thereof
prohibiting the manufacture of extremely toxic chemicals such as, but not
limited to phosphine, phosgene, stibene, arsine, hydrogen selinide, methyl
isocyanate, chlorine dioxide, chlorine trifloride, diborane, mercury and
chloroform.
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C. The Tenant shall provide the Landlord with its Standard
Industrial Classification number [if applicable to Tenant (including the Major
Group Number as designated in the Standard Industrial Classification Manual
prepared by the Office of Management and Budget in the Executive Office of the
President of the United States)]. Tenant shall notify Landlord immediately of
any changes or anticipated changes in Tenant's Standard Industrial
Classification number.
D. The Tenant shall keep no dogs in or about the premises.
E. Tenant covenants and agrees as follows:
(a) Not to use or permit the use of the demised
premises for the purpose of storing, refining, producing, transferring,
processing or transporting "Hazardous Substances" as such term is defined in
N.J.S.A. 58:10-23.11 (b)(k) or ISRA;
(b) Not to use the demised premises for the purpose
of generating, manufacturing, storing, refining, transporting, treating or
disposing of "Hazardous Substances" or "Hazardous Wastes" as such terms are
defined in N.J.A.C. 7:26B-1.3;
(c) Not to use the demised premises in a manner that
would constitute the demised premises, or the Building wherein the premises are
situate, or the Tenant's operations therein, an "Industrial Establishment" under
ISRA;
(d) To promptly cure any violation by Tenant of any
and all environmental laws or regulations upon notification thereof;
(e) Not to cause or permit as a result of Tenant's
intentional or unintentional action or omission a releasing, spilling, leaking,
pumping, emitting, pouring, emptying or dumping of a "Hazardous Substance", as
such term is defined in N.J.S.A. 58:10-23.11 (b)(k) into waters or onto land of
the State of New Jersey or onto lands or into waters outside the jurisdiction of
the State of New Jersey where damage may result to the lands, waters, fish,
shellfish, wildlife, biota, air or other resources owned, managed, held in trust
or otherwise controlled by the State of New Jersey unless the release, spill,
leak, pumping, emission, pouring, emptying, or dumping is pursuant to and in
compliance with the conditions of a permit issued by the appropriate federal or
state governmental authorities;
(f) Not to cause or permit to exist, on or at
Tenant's property, as a result of an intentional or unintentional act or
omission a "release" of "Hazardous Substances" as those terms are defined by the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sec. 9601 et seq.;
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(g) Promptly clean up the results of any use, act or
omission in violation of the provisions of this paragraph E in compliance with
all governmental laws and regulations applicable thereto and obtain such
certifications or proof of cleanup as may be required by the appropriate
governmental authorities, Landlord, and Landlord's mortgagee;
(h) Tenant covenants and agrees to apply at its own
expense for a letter of nonapplicability (if deemed necessary by Landlord and/or
if applicable to Tenant) from and on the form provided by the Department of
Environmental Protection (the "DEP") for the State of New Jersey upon request by
the Landlord. In the event Tenant is unable to receive a letter of
nonapplicability, Tenant shall obtain from the DEP an approved negative
declaration ( or a no further action letter) or implement and complete an
approved cleanup plan for the premises, all at Tenant's cost and expense.
(i) In the event the Lease is terminated for any
reason, and Landlord is unable to lease the premises because Tenant has not
obtained from the DEP a letter of nonapplicability, an approved negative
declaration (or a no further action letter) or implemented and completed an
approved cleanup plan or otherwise failed to comply with ISRA, then at
Landlord's option, a) Tenant shall continue to pay rent and all additional rent
until same is complied with or completed, as the case may be, or b) Tenant shall
be deemed a holdover tenant subject to the provisions of N.J.S.A. 2A:42-6 and
pay double the monthly rent paid as of the last month of the term until Tenant
has complied with ISRA referred to herein. However Tenant shall have no right to
possession of the premises except to facilitate the requirements contained
herein.
The provisions of this paragraph E shall survive termination
for any reason of this Lease.
F. If the Tenant fails to perform and/or pay for any
covenants, obligations or services required to be paid or performed by the
Tenant pursuant to the terms and conditions of this lease, Landlord may do so
and Tenant shall pay its proportionate share therefore as additional rent.
G. From time to time during the term hereof, but not more than
once a year, except in the event of an emergency, including any renewal or
extension of said term, the Landlord may at Tenant's reasonable cost and
expense, if there is a violation, have the demised premises inspected by
environmental engineers and/or specialists for the purpose of determining
compliance by Tenant with any environmental laws, rules and/or regulations
applicable to Tenant's operations at or around the demised premises and with the
terms and conditions of this lease dealing with environmental matters,
including, without limitation, the provisions of paragraph 12th and paragraphs B
and E of this Exhibit. If the environmental assessment or report resulting from
such inspection discloses any non-compliance, Tenant shall immediately following
receipt of the environmental assessment take such steps as are necessary to put
the premises into compliance, including without limitation, cleaning up any
spills or other emissions of hazardous and/or toxic substances or wastes.
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H. Parking: Except as otherwise provided, Parking shall be:
(a) No less than eighty (80) parking spots including
eight (8) reserved spots.
(b) Parking on the grassed areas, sidewalks,
driveways, and any other areas designated by Landlord
as restricted is prohibited. Landlord shall designate
such areas in its sole opinion and discretion.
(c) Parking in the Fire lanes by Tenant or Tenants
contractors, vendors suppliers, employees, or for any
other purpose is prohibited and is a Violation of
Tenants Lease.
(d) Twenty-four (24) hours parking is not allowed
without the express written consent of the Landlord,
which consent can be revoked upon receipt of a
forty-eight (48) hour written Notice from the
Landlord.
(e) Tenant shall supply a list of all cars used by
Tenants employees, agents, and management, not
excepting Executive personnel; said list to be
defined and indexed in a manner acceptable to
Landlord if Tenant uses part time or other employees
or agents and at Landlords sole discretion. The
intent of this clause is to determine the actually
number of spaces used by Tenant in the regular course
of business. Requirements by Tenant over an above the
regular course of business (i.e.: special meetings,
visitor use, and any other use) provided Landlord is
properly notified in advance of the times and dates
of same at least forty-eight hours (48) hours in
advance in order to facilitate the orderly use of the
parking lot for the common good of all Tenants. If
Tenant has regularly scheduled extra-ordinary
requirements said requirements are to be submitted to
Landlord as part of the list.
(f) All contractors of Tenant must park in the rear
of the property and Landlord reserves the right to
restrict the number of vehicles use and parked on the
Premises by any and all contractors.
(g) Parking in other Tenants designated parking
spaces is prohibited. Tenant must park in either
assigned or undesignated spaces specific to Tenant
which are designated by Landlord.
(h) Designated `Handicapped' spaces are restricted to
properly identified `handicapped' vehicles and said
spaces shall be designated by Landlord at Landlords
sole discretion. Police may ticket improperly parked
vehicles, satisfaction of which shall be the sole
responsibility of Tenant or the responsible
individual(s).
(i) Improperly parked vehicles are subject to being
towed from the Property at Tenant's sole cost and
expense. Landlord has option of using a system known
as `booting' (a locking device attached to a vehicles
wheels) to restrict improper parking. Proper and
visible notice shall be place on said vehicle by
Landlord or Landlords agents, and Landlord will use
best efforts to identify all vehicles as properly
parked. This clause (i) is intended primarily to
control unauthorized off-site parking and/or
violation of the parking requirements and will only
be used by Landlord after written Notice to Tenant if
Tenant is in fact in violation of the parking
regulations of the Property.
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(j) Tenant shall have five (5) business days to
remedy any violation of the Rules and Regulations
concerning parking after written Notice from
Landlord.
(I) Dumpster:
(a) The Dumpster provided by Landlord is for the
common use of all Tenants on the Property, and is
solely intended for normal, daily and ordinary
disposal of office debris.
(b) No extraordinary use of the Dumpster is allowed.
This includes but is not limited to construction
debris, disposal of excess files and/or paperwork,
off-site refuse, pallets, or any other material so
designated by the Landlord in Landlords sole opinion
as `extraordinary'.
(b) Tenant will be charged for any extraordinary use,
and waives all rights and claims against Landlord for
said charges.
END OF EXHIBIT C
(Signatures to follow on the next page)
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Exhibit C - Signature page
As Building Manager for the Landlord described herein:
By
-----------------------------
By /s/ John A. Johnson
-----------------------------
MJB Johnson Inc.
By /s/ Gary Stern
-----------------------------
Asta Funding, Inc., Tenant
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EXHIBIT D
LANDLORD SERVICES: Contained in Article 7 of this lease.
END OF DOCUMENT
-51-
EXHIBIT E
GUIDELINES FOR TENANTS RETAINING CONSULTANTS
AND CONTRACTORS
I. BEFORE CONSTRUCTION
A. Floor Plans:
1. All floor plans must be submitted at 1/4" scale or 1/8" scale only. Indicate
key plan with egress indicated and north arrow and show partition layout (i.e.,
space plan or floor layout). Provided no major construction is required, (i.e.
no load bearing walls will be affected) there will be no requirement for an
architect to be hired for the space not designated for the proposed data center.
2. Architectural plans must show architectural details, door schedules, finish
schedules, plumbing fixtures, all finishes and specifications and comply with
proper handicapped and other code criteria including but not limited to exit
signs and sprinkler head locations if sprinkler heads are required.
3. Reflected ceiling plan must show light fixture placements, emergency egress
lighting, and all architectural features. Indicate all finishes and specify
same.
4. Plans must include finish specifications, i.e., paint carpet, wall cover,
baseboard, etc. (Window blinds are building standard, not subject to Tenant
choice.) Plans must delineate between new construction vs. existing conditions.
5. Electrical floor plans must show all receptacles, panels, light switches,
fixture placements and switching. Indicate all circuitry as required. Show
location of source for service tie-in, if required (indicate distance and
include riser diagram).
6. Indicate in detail any cabinetry work. Details are required showing all
finishes.
7. Mechanical floor plans must show duct layout, size connection details,
sprinkler lines, and other mechanical conditions proposed and existing.
Mechanical plans must include specifications as required and locate sources,
distance and tie-in locations, and include riser diagrams.
8. As previously set forth in Exhibit all of the Tenant Plans must be signed,
stamped and sealed by the appropriate design professional licensed in the State
of New Jersey (i.e. architectural plans by licensed architect and structural or
mechanical plans by appropriate engineer).
9. All plans and construction specifications are subject to Landlord's written
approval, which may be withheld at Landlord's sole discretion. Reasons for
Landlord to withhold approval include, but are not limited to (i) such work
proposed is not consistent with other existing or planned improvements in
building; (ii) such work will overburden existing or planned building systems;
and (iii) lack of any of the above-noted information. Approval of Plans and
specifications shall not be unreasonably withheld by Landlord.
B. General Construction Guidelines:
1. General contractor and subcontractors must be approved by Landlord in writing
prior to construction commencement. Landlord reserves the exclusive right to
disapprove Tenant's general contractor or subcontractors. Landlord will supply
Tenant with a list of acceptable contractors upon request. Tenant has the right
to present Landlord with general contractors and subcontractors for approval.
Approval of such general contractors and subcontractors shall not be
unreasonably withheld by Landlord.
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2. General contractor and subcontractors must use labor that will perform in
harmony with other trades working in the region. At no time may Tenant's work
interfere with Landlord's or other tenant's work or normal operations of the
Building.
3. Certificates of Insurance naming Landlord and their agents and employees as
additional insureds must be submitted to Landlord prior to Tenant's entry upon
the Demised Premises, including delivery of any materials to Demised Premises,
or construction commencement with coverage for commercial general liability, and
property damage in the amounts required in the Lease. Landlord reserves the
right to dictate limits of coverage but in no case shall limits be beyond the
limits set in Section 24.1 of this Lease.
4. Copies of any notification by the municipality of additional requirements in
connection with permit approval must be delivered to Landlord.
C. Borough of Englewood Cliffs Requirements:
1. All plans must be filed with the Borough of Englewood Cliffs. Plans must be
signed and sealed by the appropriate design professional licensed in the State
of New Jersey (i.e., architectural plans by licensed architect and structural or
mechanical plans by the appropriate engineer).
2. Landlord must administer all filings for any permits or other filing
requirements of the City for work planned within the Demised Premises at
Landlords option. Once plans have been completed in accordance with Section A
(Floor Plans), Tenant must provide Landlord with four (4) signed and sealed sets
of plans.
3. Tenant will be responsible for paying all Borough fees connected with
securing required permits or approvals. Tenant shall also be responsible for
providing Landlord with properly signed and sealed trade filing documents.
4. No work will be allowed to start without the issuance of the proper
authorization or permits from the appropriate Borough officials. Once secured,
the permit must be prominently posted at the work site, along with the plans.
D. Fees:
1. MJB Johnson, Inc. shall receive a five (5%) percent (of total overall costs)
commission management fee if required by Tenant to manage construction. Change
orders will also be charged a five (5%) percent fee.
2. Should Tenant Plans not conform to the criteria outlined in Section A (Floor
Plans), Landlord is not obligated to correct Tenant Plans or otherwise modify
them to so conform. Landlord will return same to Tenant for resubmission.
3. Tenant shall be responsible for paying all municipal fees connected with
securing the permits or other municipal approvals necessary to proceed with the
proposed work.
4. If Landlord is not doing the work, Landlord will inspect the work to assure
conformance to the plans and specifications. The maximum number of inspections
will be determined by mutual agreement between the Landlord and Tenant based on
the scope of improvements and as a condition for the Landlord's approval of the
proposed project. If subsequent to such agreement between the Landlord and the
Tenant, the concept of Tenant's plan or the scope of Tenant's work changes, then
the agreed upon schedule of inspections will be subject to similar revision
based on the scope of work load which is revised and sent to Landlord for its
approval.
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E. Cost Estimating:
1. Landlord reserves the right to bid on the Tenant's Work, subject to the
following:
a. While every effort is made to promptly furnish cost estimates for the Tenant
work, it must be understood that the speed and accuracy of the Landlord's
estimates will reflect the quality and completeness of the Tenant's documents.
b. With proper preparation of documents as outlined herein, Tenant should
anticipate completed estimates within approximately seven (7) business days from
the submission of a property completed bid package to Landlord.
c. If such bid were accepted any commission would be included in the total cost
and would be lowest bid accepted.
II. DURING CONSTRUCTION
1. Tenant's contractors will be subject to the same rules and regulations as
imposed on Landlord's contractors, relative to work hours, cartage removal,
protection, and other customary procedures as appropriate. Tenant may contact
Landlords designated facilities manager at 210 Sylvan Avenue or any address
specified by Landlord with questions or details on such rules and regulations.
2. Should Tenant choose to perform work with its owns contractors while the
Landlord is also performing work within or around the Demised Premises, Tenant's
work will not commence until the Landlord has completed its work, unless
otherwise permitted by Landlord, in its sole discretion.
3. Tenant must adhere to the same guidelines outlined herein when processing
change orders or scope modifications. No construction for change orders will be
allowed to proceed without Landlord's written approval.
4. SHOULD TENANT IGNORE ANY OF THE CRITERIA DESCRIBED HEREIN OR IN ANY SECTION
OR EXHIBIT OF THE LEASE AND PERFORM OR CAUSE TO BE PERFORMED ANY CONSTRUCTION
NOT IN ACCORDANCE WITH TENANT PLANS APPROVED BY LANDLORD, TENANT WILL BE REQUIRD
TO DISASSEMBLE ALL SUCH CONSTRUCTION AND RETURN THE DEMISED PREMISES TO ITS
FORMER CONDITION AT TENANT'S SOLE COST. IF TENANT DOES NOT DISASSEMBLE SUCH
CONSTRUCTION AND RETURN THE SITE TO ITS FORMER CONDITION AFTER TEN (10) DAYS'
WRITTEN NOTICE TO TENANT FROM LANDLORD, LANDLORD IS AUTHORIZED BY TENANT TO
PERFORM SAME AT TENANTS' SOLE COST, AND TENANT SHALL REIMBURSE LANDLORD PROMPTLY
FOR ALL COSTS.
5. Tenant or its contractor must submit written notification and receive written
approval from Landlord for any type of shutdown of the electrical or, mechanical
systems. Landlord reserves the right to require that Tenant use Landlord's
contractor for any work involving the shutdown of such systems. In addition, it
should be noted that any conditions which are discovered as a result of the
modifications to existing systems made by Tenant are the full responsibility of
Tenant to repair at its sole cost. For example, testing of the electrical
system(s) is required due to Tenant Improvements or Changes by Tenant and such
testing reveals faulty installation or other problems, Tenant will be
responsible at its sole cost, to bring the system back into the code through the
repair of any such installation or problem.. This work shall be at no cost to
Landlord or any of its affiliates.
6. Landlord must be notified in writing of all scheduled work, in order that
Landlord may notify, at our sole discretion, any neighboring tenants of such
activity.
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7. For any work performed on any Building systems under a manufacturer's
warranty, the work must be performed by the original contractor at option of
Landlord.
III. AFTER CONSTRUCTION
1. All contractors and subcontractors completing work must provide Landlord with
proper Release of Liens form(s) and Tenant's Certification as furnished by
Landlord for each billing period and, most importantly, at the completion of
Tenant work. Tenant agrees to indemnify and save Landlord harmless from and
against any and all damages sustained as a result of any liens filed by
contractors or subcontractors and as otherwise set forth in the Lease.
2. A minimum one (1) year warranty is required on materials and workmanship of
all work per Tenant Plans.
3. Keying system must match the base Building master keying system and Tenant
must use Landlord's locksmith in connection with such work. Entry system to new
construction will be a card key swipe system to be performed by contractor
selected by Tenant.
4. Within sixty (60) days of completion of any Tenant work performed by Tenant's
contractors, Tenant shall submit to Landlord two (2) sets of as-built drawings
as set forth in Exhibit B showing all improvements or alterations to the Demised
Premises. Such as-built drawings shall include all change orders occurring
during the course of construction and provide all pertinent specifications for
such construction work.
END OF DOCUMENT
(Signatures to follow on the next page)
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Exhibit E - Signature page.
As Building Manager for the Landlord described herein:
By /s/ Bjorn R. Johnson
-----------------------------
By /s/ John A. Johnson
-----------------------------
MJB Johnson Inc.
By /s/ Gary Stern
-----------------------------
Asta Funding, Inc.
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Exhibit F
CONTRACTOR LIST AS OF 6/9/05
CLEANING CONTRACTORS
J.S Stephens Cleaning Commercial Cleaning
120 Sylvan Avenue
Englewood Cliffs NJ 07632
201.585.7672
Joseph Bonino
201.767.3654
PLUMBING CONTRACTOR
Galdi Plumbing
215 Gates road Unit 1
Little Ferry, NJ 07643
201.641.6700
ELECRTICAL CONTRACTORS
John W. Stellar
36 Dillingham Place
Englewood Cliffs NJ 07632
201.567.0775
All Star Electrical Services
Kevin Garrity President
308 Railroad Avenue
Hackensack NJ 07601
201.342.8686
FLOORING CONTRACTOR
Ali Carpet
104 Johnson Avenue
Hackensack NJ 07601
201.525.04500
HVAC CONTRACTOR
KCG, Inc.
70 Pine Brook Road
Towaco, NJ 07082
973.335.3884
RECYCLING CONTRACTOR
Miele Sanitation Co.
201.768.5407
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RIDER TO THE LEASE DATED
AUGUST 1, 2005
1.1 Landlord shall give a credit against rent in the amount of $4.50 per
square foot for construction for the additional 1,780 square feet rented
in the 200 building. The rental credit shall be given in the first three
months of the lease.
1.2 The Landlord will balance the HVAC system to suit the current
configuration of the Asta Funding space. The Landlord will be responsible
for all costs in the rebalancing of the system. Landlord's responsibility
is to provide industry standard installation for Tenant's comfort, this
being defined as seventy-two (72) degrees, plus or minus two (2) degrees.
In the event the Landlord does not satisfy this clause, the Tenant has the
right to hire a contractor at the Landlord's expense to cure the
inconsistency in temperature throughout the Tenant's space. The Tenant
shall ensure that the project is completed at the lowest possible cost.
Notice of Tenant's intent to enact this remedy shall be sent to the
Landlord in writing with 30 days notice.
1.3 The Landlord will replace all stained ceiling tiles and wash all walls.
1.4 The Landlord at their expense will replace the entrance carpet in the 210
building and replace existing wallpaper and paint trim.
1.5 Landlord shall grant tenant the right to construct additional stalls in
the Ladies Room located in building 210, 1st floor.
1.6 Landlord shall assign the 8 designated spaces referenced in Article 1.2 of
the Lease to the upper level parking lot.
-58-
Rider to Lease - Signature page.
As Building Manager for the Landlord described herein:
By
-----------------------------
By /s/ John A. Johnson
-----------------------------
MJB Johnson Inc.
By /s/ Gary Stern
-----------------------------
Asta Funding, Inc.
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