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EXHIBIT 10.3
LEASE
MONMOUTH/ATLANTIC REALTY ASSOCIATES, L.P.
LESSOR
TO:
DIGITAL LIGHTWAVE, INC.
LESSEE
BUILDING:
0000 XXXXXX XXXXXXX
XXXX XXXXXXXX, XXX XXXXXX
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TABLE OF CONTENTS
1. DESCRIPTION.........................................................3
2. TERM................................................................3
3. FIXED BASIC RENT....................................................3
4. USE AND OCCUPANCY...................................................3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL COMPLIANCE................3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS..............................6
7. ACTIVITIES INCREASING FIRE INSURANCE RATES..........................7
8. ASSIGNMENT AND SUBLEASE.............................................7
9. COMPLIANCE WITH RULES AND REGULATIONS..............................10
10. DAMAGES TO BUILDING................................................10
11. EMINENT DOMAIN.....................................................11
12. INSOLVENCY OF LESSEE...............................................11
13. LESSOR'S REMEDIES ON DEFAULT.......................................11
14. DEFICIENCY.........................................................11
15. SUBORDINATION OF LEASE.............................................12
16. SECURITY DEPOSIT...................................................13
17. RIGHT TO CURE LESSEE'S BREACH......................................13
18. MECHANIC'S LIENS...................................................13
19. RIGHT TO INSPECT AND REPAIR........................................13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION.............13
21. INTERRUPTION OF SERVICES OR USE....................................15
22. ELECTRICITY/GAS....................................................15
23. ADDITIONAL RENT....................................................16
24. COMMON AREA CHARGES................................................19
25. LESSEE'S ESTOPPEL..................................................19
26. HOLDOVER TENANCY...................................................19
27. RIGHT TO SHOW PREMISES.............................................20
28. LESSOR'S WORK - LESSEE'S DRAWINGS..................................20
29. WAIVER OF TRIAL BY JURY............................................20
30. LATE CHARGE........................................................20
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31. LESSEE'S INSURANCE.................................................20
32. NO OTHER REPRESENTATIONS...........................................22
33. QUIET ENJOYMENT....................................................22
34. INDEMNITY..........................................................22
35. ARTICLE HEADINGS...................................................23
36. APPLICABILITY TO HEIRS AND ASSIGNS.................................23
37. PARKING............................................................23
38. LESSOR'S LIABILITY FOR LOSS OF PROPERTY............................23
39. PARTIAL INVALIDITY.................................................23
40. BROKER.............................................................23
41. PERSONAL LIABILITY.................................................23
42. NO OPTION..........................................................24
43. DEFINITIONS........................................................24
44. LEASE COMMENCEMENT.................................................25
45. NOTICES............................................................25
46. ACCORD AND SATISFACTION............................................25
47. EFFECT OF WAIVERS..................................................25
48. LEASE CONDITION....................................................26
49. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE.........................26
50. LESSOR'S RESERVED RIGHT............................................26
51. CORPORATE AUTHORITY................................................26
52. LESSEE'S EXPANSION/RELOCATION......................................26
53. MISCELLANEOUS......................................................27
54. TERMINATION OPTION.................................................28
-- END --
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LEASE, is made the _____ day of _________, 1997 between
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P. ("Lessor") whose address is c/o Cali
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and DIGITAL
LIGHTWAVE, INC. ("Lessee") whose address is 000 Xxxxxxxxx Xxxxxx, 0xx xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BROKER shall mean Black & Company
3. BUILDING shall mean 0000 Xxxxxx Xxxxxxx, Xxxxxxxx X, Xxxxxxxx Shores
Corporate Park, Wall, New Jersey.
4. BUILDING AREA shall mean Building B, C, and D totaling 72,500 square
feet.
5. COMMENCEMENT DATE is December 1, 1997 and subject to Articles 28 and
Article 44 hereof.
6. DEMISED PREMISES OR PREMISES shall be deemed to be 8,044 rentable
square feet in the Building, as shown on Exhibit A hereto.
7. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Rider A Renewal Option
Exhibit A Location of Premises
Exhibit A-1 Property
Exhibit X-0 Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit D Permitted Encumbrances
Exhibit E Tenant Estoppel Certificate
Exhibit F Commencement Date Agreement
Exhibit G Letter of Credit
8. EXPIRATION DATE shall be midnight on the day before the fifth (5th)
anniversary of the Commencement Date plus the number of days, if any,
to have the lease expire on the end of a calendar month, unless
extended or modified pursuant to any option contained herein.
9. FIXED BASIC RENT shall mean: FOUR HUNDRED EIGHT-TWO THOUSAND SIX
HUNDRED FORTY AND 00/100 DOLLARS ($482,640.00) for the Term payable as
follows:
Monthly Yearly
Installments Installments
------------ ------------
Years 1-5: $8,044.00 $ 96,528.00
10. LESSEE'S BUSINESS PARK SHARE ("Business Park" being defined in Article
43) shall mean 8.17% subject to adjustment as provided for in Article
43(f).
11. LESSEE'S PERCENTAGE shall be 11.10%, subject to adjustment as provided
for in Article 43(e).
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12. PARKING SPACES shall mean a total of twenty-eight (28) unassigned
spaces.
13. PERMITTED USE, subject to the issuance of a use and occupancy permit
from the Township of Wall, shall be general office use, as well as
those ancillary uses related to computer hardware and software
development, and for no other purpose.
14. PROPERTY shall be as shown on Exhibit A-1.
15. SECURITY DEPOSIT shall be $137,550.00 to be provided to Lessor upon
Lease execution, initially in the form of an unconditionally, clean
non-cancelable commercial Letter of Credit in the form set forth as
Exhibit G equal to $121,462.00 with the balance of $16,088.00 in cash,
the latter to be retained for the entire Term.
16. TENANT'S Standard Industrial Classification ("SIC") Number is 5065.
17. TERM shall mean sixty (60) months from the Commencement Date, plus the
number of days, if any, to have the lease expire on the end of a
calendar month, unless extended pursuant to any option contained herein
or unless terminated earlier in accordance with the terms hereof.
END OF PREAMBLE
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W I T N E S S E T H
For and in consideration of the covenants herein contained,
and upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION: Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Premises as defined in the Preamble as shown on the
plan or plans, initialed by the parties hereto, marked Exhibit A
attached hereto and made part of this Lease in the Building as defined
in the Preamble, (hereinafter called the "Building") which is situated
on that certain parcel of land (hereinafter called "Property") as
described on Exhibit A-1 attached hereto and made part of this Lease,
together, with the non-exclusive right to use the Common Areas with
Lessor and other lessees of the Business Park, subject however, to the
Permitted Encumbrances set forth in Exhibit D hereto.
2. TERM: The Premises are leased for a term to commence on the
Commencement Date, and to end at 12:00 midnight on the Expiration Date,
all as defined in the Preamble.
3. FIXED BASIC RENT: The Lessee shall pay to the Lessor during the Term,
the Fixed Basic Rent as defined in the Preamble (hereinafter called
"Fixed Basic Rent") payable in such coin or currency of the United
States of America as at the time of payment shall be legal tender for
the payment of public and private debts. The Fixed Basic Rent shall
accrue at the Yearly Rate as defined in the Preamble and shall be
payable, in advance, on the first day of each calendar month during the
Term at the Monthly Installments as defined in the Preamble, except
that a proportionately lesser sum may be paid for the first month of
the Term of this Lease if the Term commences on a day other than the
first day of the month, in accordance with the provisions of this Lease
herein set forth. Lessor acknowledges receipt from Lessee of the first
monthly installment by check, subject to collection, for Fixed Basic
Rent for the first month of the Lease Term. Lessee shall pay Fixed
Basic Rent, and any Additional Rent as hereinafter provided, to Lessor
at Lessor's above stated address, or at such other place as Lessor may
designate in writing, without demand and without counterclaim,
deduction or set off.
4. USE AND OCCUPANCY: The Lessee shall use and occupy the Premises for the
use set forth in the Preamble and for no other purpose. Such Permitted
Uses are further subject that they shall be consistent with the
Certificate of Use and Occupancy to be issued by the Township of Wall.
Such Permitted Uses shall not permit or cause any odor, sound,
vibration, effluent, pollution or other condition that is, either in
Lessor's opinion, or by law, noxious or offensive. It being a
reasonable consideration of this Lease, that the use of the Premises
shall be limited, to those uses as otherwise hereinbefore specified,
and Lessee may not, use the Premises for manufacturing or for retail
sales. The Lessee shall not permit the stacking of merchandise or
materials against the walls, so as to create a load or weight factor
upon the walls, or to tie in, Lessee's racking systems with such walls,
nor shall Lessee permit the hanging of equipment from (or otherwise
loading) the roof or structural members of the Building without the
express written consent of the Lessor. The Lessee shall not use or
occupy or permit the Premises to be used or occupied, nor do or permit
anything to be done in or on the Building Area, in a manner which will
in any way violate any certificate of occupancy affecting the Premises.
Nothing herein contained shall be deemed or construed to constitute a
representation or guaranty by the Lessor that any specific business may
be conducted in the Premises or is lawful under the certificate of
occupancy.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL COMPLIANCE:
a. All improvements made by Lessee to the Premises, which are so
attached to the Premises, shall become the property of Lessor
upon installation. Not later than the last day of the Term,
Lessee shall, at Lessee's expense, remove all Lessee's
personal property and those improvements made by Lessee which
have not become the property of Lessor, including trade
fixtures, cabinetwork, movable paneling, partitions and the
like; repair all injury done by or in connection with the
installation or removal of said property and improvements; and
surrender the Premises in as good condition as they were at
the beginning of the Term, reasonable wear and damage by fire,
the elements, casualty or other cause not due to the misuse or
neglect by Lessee, Lessee's agents, servants, visitors or
licensees. All other property of Lessee remaining on the
Premises after the last day of the Term of this Lease shall be
conclusively
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deemed abandoned and may be removed by Lessor, and Lessee
shall reimburse Lessor for the cost of such removal. Lessor
may have any such property stored at Lessee's risk and
expense.
b. Lessee shall keep, replace and maintain in good order,
condition and repair the Premises and each and every part
thereof (except for repairs specifically required of Lessor
pursuant to subparagraph a. of this Article 5) including,
without limitation, any air conditioning units and systems,
heating units and systems, plumbing units and systems;
sprinkler systems; electrical systems; equipment; facilities
and fixtures. The aforesaid obligation of Lessee shall also
include without limitation, all necessary painting and
decorating and the replacement of any glass which may be
damaged or broken. Notwithstanding the foregoing, all damage
or injury to the Premises or to any other part of the Building
and the Property, or to its fixtures or appurtenances, whether
requiring structural or non-structural repairs, caused by the
negligence, willful or intentional misconduct of Lessee, or
its employees, invitees, licensees or agents, shall be
repaired promptly by Lessee at its sole cost and expense. If
Lessee refuses or neglects to make such repairs within fifteen
(15) days, or fails to diligently commence curing said damage
or injury within thirty (30) days, after written notice from
Lessor to Lessee of the need therefor, Lessor may make such
repair at the expense of Lessee and such expense shall be
collectible as Additional Rent. Lessee shall obtain a
maintenance contract for the HVAC systems servicing the
Premises. Such contract shall provide for semi-annual
maintenance of the HVAC systems, and copies of the maintenance
agreement shall be submitted to Lessor, together with an
annual report of the maintenance company as to the condition
and repairs made to the systems. The firm or person
maintaining the HVAC systems shall be a person who is
certified and licensed to service refrigerating equipment as
such certification or licenses may be required by law or any
governmental agency.
c. Subject to force majeure and the acts, omissions or negligence
of Lessor, Lessee shall, at all times, maintain a minimum
temperature of 40 degrees Fahrenheit throughout the Demised
Premises. Lessee shall save harmless and indemnify Lessor for
any and all damages incurred by Lessor as the result of
Lessees's failure to comply with this requirement.
x. Xxxxxx represents that, as of the Commencement Date of the
Lease, the HVAC system and other Building Systems (as defined
in Article 6 hereof) shall be in good working order.
x. Xxxxxx shall deliver the Premises in compliance with the
Americans with Disabilities Act of 1990 and such other rules
and regulations as are in effect promulgated thereunder (the
"ADA") as of the Commencement Date. Prior to the Commencement
Date, if Lessee is then in possession of the Premises, and at
all times during the Term, Lessee, at Lessee's sole cost and
expense, shall promptly comply with all present and future
Legal Requirements and all other orders, rules and regulations
of any Government Entity which shall impose any violation,
order or duty upon Lessor or Lessee with respect to the
Premises or with respect to the use or manner of use of the
Premises, whether or not any such Legal Requirement shall
necessitate alterations or improvements or interfere with the
use or enjoyment of the Premises; provided, however, that
Lessee shall not be required to make structural alterations or
improvements to the Premises in order to comply with Legal
Requirements, all of which shall be the responsibility of
Lessor, unless the necessity therefor arises as a result of
Lessee's specific manner of use of the Premises (as
distinguished from the mere use of the Premises for general
office purposes), or as a result of Lessee's failure to comply
with any obligation of Lessee under this Lease. Lessee shall
also procure, pay for and maintain all permits, approvals,
licenses and other authorizations needed for the conduct of
Lessee's business in the Premises and shall provide true and
complete copies thereof upon demand by Lessor. Lessee shall
make or cause to be made all Alterations subsequent to Lease
Commencement (including, without limiting the generality of
the requirement in this sentence, removing such barriers and
providing such alternative services), as shall be required by
the Americans with Disabilities Act of 1990 and such rules and
regulations as shall be from time to time promulgated
thereunder (the "ADA").
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f. Lessee shall, at Lessee's own expense, comply with the
Industrial Site Recovery Act, 1993 N.J. Laws 139 ("ISRA") and
the regulations promulgated thereunder, with respect to
Lessee's obligations under this Lease, which may now or
hereafter arise; and Lessee shall further comply with all
applicable requirements of, the Bureau of Industrial Site
Evaluation (the "Bureau") of the New Jersey Department of
Environmental Protection ("NJDEP") to the extent such
compliance is required as a result of: (i) Lessee's use of or
operations at the Premises or (ii) a spill or discharge of any
hazardous substance or wastes by Lessee or Lessee's
Affiliates, employees and agents. Should the Bureau or any
other division or agency of NJDEP determine that a cleanup
plan be prepared and that a cleanup be undertaken because of
any spills or discharges of hazardous substances or wastes at
the Premises which occur during the Term of this Lease and
which are caused by Lessee or Lessee's Affiliates, employees
and agents, then Lessee shall prepare and submit the required
plans and financial assurances, and carry out the approved
plans at Lessee's expense (provided, however, that if such
plan or cleanup is required as a result of the acts or
omissions of any other person or entity, including but not
limited to Lessor or Lessor's Affiliates, employees and
agents, then Lessor shall prepare and submit the required
plans and financial assurances and carry out the approved
plans at Lessor's expense). Lessee, shall promptly provide all
information reasonably available and within Lessee's control
requested by Lessor for preparation of non-applicability
affidavits and shall promptly sign such affidavits when
requested by Lessor. Lessee's obligations and liabilities
under this Section shall survive the Term without limitation.
Lessee's failure to abide by the terms of this Section shall
be restrainable by injunction. Lessee hereby agrees that only
"sanitary sewage" (as defined in N.J.S.A. 7:14A-1.9) shall be
discharged into the sewer or septic system and that no
"industrial pollutants" (as defined in the Clean Water Act of
1977 and any amendments thereto) shall be discharged into such
system. Lessor shall, at Lessor's own expense, comply with
ISRA with respect to Lessor's obligations under this Lease,
which may now or hereafter arise; and Lessor shall further
comply with all applicable requirements of, the Bureau.
g. Lessee hereby covenants and agrees, at its sole cost and
expense, to indemnify, protect and save Lessor and Lessor's
Affiliates, harmless against and from any and all damages,
losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses, judgments, suits, proceedings,
costs, disbursements or expenses (including, without
limitation, reasonable attorneys' and experts' fees and
disbursements and court and transcript costs) which may at any
time be imposed upon, incurred by, or asserted or awarded
against Lessor and Lessor's Affiliates to the extent the same
result from the acts or omissions of Lessee, Lessee's
Affiliates, employees and agents and/or Lessee's sub-lessees
or assignees, and/or any of Lessee's contractors while on the
Premises with respect to the storage, maintenance, use,
discharge, spillage, or disposal of any Hazardous Materials
on, in, under or affecting any portion of the Property, or any
surrounding areas and including indemnification with respect
to (x) the costs of removal of any and all such Hazardous
Materials from all or any portion of the Premises, the
Property or the Business Park or any surrounding areas, (y)
the costs required to take necessary precautions to protect
against any additional release of such Hazardous Materials on,
in, under or affecting the Premises, the Building Area or the
Business Park into the air, any body of water, any other
public domain or any surrounding areas, and (z) costs incurred
to comply, in connection with all or any portion of the
Premises, the Property or the Business Park or any surrounding
areas, with all applicable Legal Requirements with respect to
such Hazardous Materials (including ISRA, the Clean Water Act,
the Safe Drinking Water Act, the Comprehensive Environmental
Response, Compensation and Liability Act, the Toxic Substances
Control Act, the Resource Conservation and Recovery Act, and
the Federal Insecticide, Fungicide and Rodenticide Act).
h. Notwithstanding anything to the contrary herein, Lessee shall
not be responsible for any damages, losses, liabilities,
obligations, penalties, claims, litigations, demands,
defenses, judgments, suits, proceedings, costs, or expenses
with respect to the presence, generation, storage,
maintenance, use, discharge, release, spillage or disposal of
any Hazardous Materials on, in, under or affecting all or any
portion of the Premises or any surrounding areas at any time
resulting from (i) any acts or omissions of Lessor or Lessor's
Affiliates or other tenants of the Property; and/or
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(ii) which occurred or were present on the Premises prior to
the Commencement Date.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS: , Lessee shall not, without
first obtaining the written consent of Lessor, make any Building System
alterations, additions or improvements in, to or about the Premises.
Lessee shall not, without first obtaining the written consent of Lessor
(which shall not be unreasonably withheld or delayed) make any
non-Building System alterations, additions or improvements in, to or
about the Premises. "Building Systems" shall mean the entire, or any
component of, any life safety, structural, plumbing, electrical,
heating ventilation or air conditioning system. Notwithstanding the
foregoing, Lessee shall have the right to install additional office
space in the Premises necessary for the conduct of Lessee's business,
provided:
a. Lessee shall first obtain requisite permits and authorizations
from governmental authorities having jurisdiction;
b. Lessee obtains Lessor's, and if required, the fee mortgagee's
prior written consent (which Lessor's consent not to be
withheld if the change or alteration would not, in the
reasonable opinion of the Lessor, impair the value or
usefulness of the Premises and with respect to the mortgagee's
consent, Lessor shall use its commercially reasonable efforts
to assist Lessee in obtaining same);
c. any such alteration shall be made promptly (unavoidable delays
excepted) in a workmanlike manner in accordance with any
alteration plans and in compliance with applicable laws and
governmental regulations;
d. the cost of the alteration shall be paid by Lessee so that the
Premises remain free of any liens;
e. if requested by Lessor at the time Lessor grants its consent
to the proposed alterations, Lessee shall post with Lessor,
adequate security to assure restoration of the Premises at the
end of the term;
f. Lessee maintain proper insurance as stated in Article 31
hereof;
g. no alteration for offices shall be undertaken until detailed
plans and specifications have first been submitted to and
approved in writing by Lessor and if required, by the fee
mortgagee. At completion of the alteration "as built" plans
and a CAD file of same shall be delivered to Lessor; and
h. Lessee shall agree in writing, if directed by Lessor at the
time Lessor grants its consent to the proposed alterations, to
remove such alteration and to restore the Premises upon such
removal.
Lessee shall not:
i. Change (whether by alteration, replacement, rebuilding or
otherwise) the exterior color and/or architectural treatment
of the Premises or of the Building or Building Area.
j. Use the plumbing facilities for any purpose other than that
for which they were constructed, or dispose of any garbage or
other foreign substance therein, whether through the
utilization of so-called "disposal", or similar units or
otherwise.
k. Subject any fixtures, furnishings or equipment in or on the
Premises which are fixtures, affixed to the realty, to any
mortgages, liens, conditional sales agreements, security
interests or encumbrances.
l. Perform any act or carry on any practice which may damage, mar
or deface the Premises or any other part of the Building.
m. Place a load on any floor in the Premises, or in any area of
the Building, exceeding the floor load which such floor was
designated to carry; or install, operate or maintain
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therein any heavy item or equipment except in such manner as
to achieve a proper distribution of weight.
n. Install, operate or maintain in the Premises, any electrical
equipment which does not bear underwriters' approval, and
would overload the electrical system therein, or any part
thereof, beyond its reasonable capacity for proper and safe
operation.
o. Suffer, allow or permit any offensive or obnoxious vibration,
noise, odor or other undesirable effect to emanate from the
Premises, or any machine or other installation therein, or
otherwise suffer, allow or permit the same to constitute a
nuisance or otherwise unreasonably interfere with the safety,
comfort or convenience of Lessor or any other occupants of the
Building; upon notice by Lessor to Lessee that any of the
aforesaid is occurring, Lessee shall forthwith (but in all
events within five (5) days) remove or control the same.
p. Use or occupy the Premises or do or permit anything to be done
thereon in any manner which might cause structural injury to
the Building, or which would constitute a public or private
nuisance or which would violate any present or future laws,
regulations, ordinances or requirements (ordinary or
extraordinary, foreseen or unforeseen) of the federal, state
or municipal governments, or of any department, subdivisions,
bureaus or offices thereof, or of any other governmental
public or quasi public authorities now existing or hereafter
created having jurisdiction in the Premises or the Building.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES: Lessee shall not do or
suffer anything to be done on the Premises which will increase the rate
of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE: Lessee may assign or sublease the within Lease
to any party subject to the following:
a. In the event Lessee desires to assign this Lease or sublease
all or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be
communicated to the Lessor in writing prior to the effective
date of any such sublease or assignment, and, prior to such
effective date, the Lessor shall have the option, exercisable
in writing to the Lessee, to: (i) sublease such space from
Lessee at the lower rate of (a) the rental rate per rentable
square foot of Fixed Basic Rent and Additional Rent then
payable pursuant to this Lease or (b) the terms set forth in
the proposed sublease, (ii) recapture in the case of
subletting, that portion of the Premises to be sublet or all
of the Premises in the case of an assignment ("Recapture
Space") so that such prospective sublessee or assignee shall
then become the sole Lessee of Lessor hereunder, or (iii)
recapture the Recapture Space for Lessor's own use and the
within Lessee shall be fully released from any and all
obligations hereunder with respect to the Recapture Space.
b. In the event that the Lessor elects not to recapture the Lease
as hereinabove provided, the Lessee may nevertheless assign
this Lease or sublet the whole or any portion of the Premises,
subject to the Lessor's prior written consent, which consent
shall not be unreasonably withheld or delayed, on the basis of
the following terms and conditions:
i. The Lessee shall provide to the Lessor the name and
address of the assignee or sublessee.
ii. So long as the occupancy rate of the Business Park is
less than ninety-five percent (95%), the proposed
assignee or subtenant shall not be a tenant or
occupant of any part of the Building, Business Park
or building within a three (3) mile radius, operated
by Cali Realty Corporation or any of its affiliates,
or is any corporation which controls or is controlled
by such tenant or occupant or is under common control
with such tenant or occupant.
iii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and
a copy of such assumption agreement shall be
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furnished to the Lessor within ten (10) days of its
execution. Any sublease shall expressly acknowledge
that said sublessee's rights against Lessor shall be
no greater than those of Lessee. Lessee further
agrees that notwithstanding any such subletting, no
other and further subletting of the Premises by
Lessee or any person claiming through or under Lessee
shall or will be made except upon compliance with and
subject to the provisions of this Article 8.
iv. If this Lease is assigned, or if the Premises or any
part thereof is sublet or occupied by anybody other
than Lessee, Lessor may, after default by Lessee,
collect rent from the assignee, subtenant, or
occupant and apply the net amount collected to the
Fixed Basic Rent and Additional Rent herein reserved,
but no such collection or the acceptance of the
assignee, subtenant, or occupant as Lessee shall be
deemed a waiver by Lessor of any of Lessee's
covenants contained in this Article or a release of
Lessee from the further performance by Lessee of
covenants on the part of Lessee herein contained.
v. The Lessee and each assignee shall be and remain
liable for the observance of all the covenants and
provisions of this Lease, including, but not limited
to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this
Lease, as the same may be renewed, extended or
otherwise modified.
vi. Any rentals or any other economic consideration
received by Lessee as a result of any assignment or
subletting whether denominated rental under the
sublease or otherwise which in aggregate exceed the
total sums which Lessee is obligated to pay Lessor
under this Lease (prorated to reflect obligations
allocable to that portion of the Premises in the case
of a sublease) shall, provided Lessee is not in
default hereunder, be divided equally between Lessor
and Lessee.
vii. In any event, the acceptance by the Lessor of any
rent from the assignee or from any of the subtenants
or the failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release the Lessee herein,
nor any assignee assuming this Lease, from any and
all of the obligations herein during and for the
entire Term of this Lease.
viii. Lessor shall require Lessee to reimburse Lessor its
actual expenses and costs up to FIVE HUNDRED AND
00/100 DOLLARS ($500.00) to cover its handling
charges for each request for consent to any sublet or
assignment prior to its consideration of the same.
Lessor shall respond within fifteen (15) days of
receipt of Lessee's request for consent, otherwise
said request for consent shall be deemed denied.
Lessee acknowledges that its sole remedy with respect
to any assertion that Lessor's failure to consent to
any sublet or assignment is unreasonable shall be the
remedy of specific performance and Lessee shall have
no other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent
thereto.
c. If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock
exchange, the provisions of Sub-section a. shall apply to a
transfer (however accomplished, whether in a single
transaction or in a series of related or unrelated
transactions) of stock (or any other mechanism such as, by way
of example, the issuance of additional stock, a stock voting
agreement or change in class(es) of stock) which results in a
change of control of Lessee as if such transfer of stock (or
other mechanism) which results in a change of control of
Lessee were an assignment of this Lease, and if Lessee is a
partnership or joint venture, said provisions shall apply with
respect to a transfer (by one or more transfers) of an
interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by
way of example, the creation of additional general partnership
or limited partnership interests) which results in a change of
control of such a partnership or joint venture, as if such
transfer of an interest in the distributions of profits and
losses of such partnership or joint venture which results in a
change of control of such partnership or joint venture were an
assignment of this Lease; but said provisions shall not apply
to transactions with a corporation into or
12
with which Lessee is merged or consolidated or to which all or
substantially all of Lessee's assets are transferred or to any
corporation which controls or is controlled by Lessee or is
under common control with Lessee, provided that in the event
of such merger, consolidation or transfer of all or
substantially all of Lessee's assets (i) the successor to
Lessee has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater
of (1) the net worth of Lessee immediately prior to such
merger, consolidation or transfer, or (2) the net worth of
Lessee herein named on the date of this Lease, and (ii) proof
satisfactory to Lessor of such net worth shall have been
delivered to Lessor at least 10 days prior to the effective
date of any such transaction.
d. Any sublet or assignment to a parent, subsidiary or an
affiliated company shall not be subject to the provisions of
sub-sections (a.) and (b.)(vi.), hereof and shall not require
Lessor's prior written consent, but all other provisions of
this paragraph shall apply.
e. In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law
to any trustee, receiver, or other representative or agent of
Lessee, or to Lessee as a debtor in possession, and
subsequently any or all of Lessee's interest in the Premises
and/or this Lease is offered or to be offered by Lessee or any
trustee, receiver, or other representative or agent of Lessee
as to its estate or property (such person, firm or entity
being hereinafter referred to as the "Grantor", for
assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a "Disposition"),
it is agreed that Lessor has and shall have a right of first
refusal to purchase, take, or otherwise acquire, the same upon
the same terms and conditions as the Grantor thereof shall
accept upon such Disposition to such other person, firm, or
entity; and as to each such Disposition the Grantor shall give
written notice to Lessor in reasonable detail of all of the
terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but
prior to accepting the same, and Grantor shall not make the
Disposition until and unless Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as
set forth herein.
Lessor shall have sixty (60) days next following its receipt
of the written notice as to such Disposition in which to
exercise the option to acquire Lessee's interest by such
Disposition, and the exercise of the option by Lessor shall be
effected by notice to that effect sent to the Grantor; but
nothing herein shall require Lessor to accept a particular
Disposition or any Disposition, nor does the rejection of any
one such offer of first refusal constitute a waiver or release
of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accept such offer of
first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in
the notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition with
such other person, firm, or entity; but any decrease in price
of more than two percent (2%) of the price sought from Lessor
or any change in the terms of payment for such Disposition
shall constitute a new transaction requiring a further option
of first refusal to be given to Lessor hereunder.
f. Without limiting any of the provisions of Articles 10 and 11,
if pursuant to the Federal Bankruptcy Code (herein referred to
as the "Code"), or any similar law hereafter enacted having
the same general purpose, Lessee is permitted to assign this
Lease notwithstanding the restrictions contained in this
Lease, adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean
the deposit of cash security in an amount equal to the sum of
one year's Fixed Basic Rent plus an amount equal to the
Additional Rent for the calendar year preceding the year in
which such assignment is intended to become effective, which
deposit shall be held by Lessor for the balance of the Term,
without interest, as security for the full performance of all
of Lessee's obligations under this Lease, to be held and
applied in the manner specified for security in Article 16.
g. Except as specifically set forth above, no portion of the
Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by
13
assignment, mortgage, sublease, transfer, operation of law or
act of the Lessee, nor shall Lessee pledge its interest in
this Lease or in any security deposit required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS: Lessee shall observe and
comply with the rules and regulations hereinafter set forth in Exhibit
B attached hereto and made a part hereof and with such further
reasonable rules and regulations as Lessor may prescribe, on written
notice to the Lessee, for the safety, care and cleanliness of the
Building and the comfort, quiet and convenience of other occupants of
the Building. The Rules and Regulations shall be prescribed and
enforced in a non-discriminatory manner except in any instance arising
out of Lessee's particular manner of use or manner of occupation (as
distinguished from mere use or occupation) of the Premises for general
and executive purposes. Lessee shall not place a load upon any floor of
the Premises exceeding the floor load which it was designed to carry
and which is allowed by law. Lessor reserves the right to prescribe the
weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee,
at Lessee's expense, in settings sufficient, in Lessor's judgement, to
absorb and prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING: If the Building is damaged by fire or any other
cause to such extent the cost of restoration, as reasonably estimated
by Lessor, will equal or exceed twenty-five percent (25%) of the
replacement value of the Building (exclusive of foundations) just prior
to the occurrence of the damage, then Lessor may, no later than the
sixtieth (60th) day following the damage, give Lessee a notice of
election to terminate this Lease, or if the cost of restoration will
equal or exceed fifty percent (50%) of such replace ment value and if
the Premises shall not be reasonably usable for the purpose for which
they are leased hereunder, then Lessee may, no later than the sixtieth
(60th) day following the damage, give Lessor a notice of election to
terminate this Lease. In either said event of election, this Lease
shall be deemed to terminate on the thirtieth (30th) day after the
giving of said notice, and Lessee shall surrender possession of the
Premises within a reasonable time thereafter, and the Fixed Basic Rent,
and any Additional Rent, shall be apportioned as of the date of said
surrender and any Fixed Basic Rent or Additional Rent paid for any
period beyond said date shall be repaid to Lessee. If the cost of
restoration shall not entitle Lessor to terminate this Lease, or if,
despite the cost, Lessor does not elect to terminate this Lease, Lessor
shall restore the Building and the Premises with reasonable promptness,
subject to Force Majeure, and Lessee shall have no right to terminate
this Lease except as otherwise provided herein. In the event Lessor
elects to restore, Lessor shall commence to restore the Building and
Premises no later than the ninetieth (90th) day following damage. In
the event that Lessor has not completed such restoration within two-
hundred seventy (270) days following such damage, Lessee may terminate
this Lease upon thirty (30) days prior written notice to Lessor
coinciding with the end of a calendar month. Lessor need not restore
fixtures and improvements owned by Lessee.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and
the extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words "restoration"
and "restore" as used in this Article 10 shall include repairs. If the
damage results from the fault of the Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement or
reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor.
11. EMINENT DOMAIN: If Lessee's use of the Premises is materially affected
due to the taking by eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building;
then, in either event, this Lease shall terminate on the date when
title vests pursuant to such taking. The Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of said termination date and
any Fixed Basic Rent or Additional Rent paid for any period beyond said
date, shall be repaid to Lessee. Lessee shall not be entitled to any
part of the award for such taking or any payment in lieu thereof, but
Lessee may file a separate claim for any taking of fixtures and
improvements owned by Lessee which have not become the Lessor's
property, and for moving expenses, provided the same shall, in no way,
affect or diminish Lessor's award. In the event of a partial taking
which does not effect a termination of this Lease but does deprive
Lessee of the use of a portion of the Premises,
14
there shall either be an abatement or an equitable reduction of the
Fixed Basic Rent, depending on the period for which and the extent to
which the Premises so taken are not reasonably usable for the purpose
for which they are leased hereunder.
12. INSOLVENCY OF LESSEE: Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee, or, (b)
a general assignment by Lessee for the benefit of creditors, or, (c)
any action taken or suffered by Lessee under any insolvency or
bankruptcy act, shall constitute a default of this Lease by Lessee, and
Lessor may terminate this Lease forthwith and upon notice of such
termination Lessee's right to possession of the Premises shall cease,
and Lessee shall then quit and surrender the Premises to Lessor but
Lessee shall remain liable as hereinafter provided in Article 14
hereof.
13. LESSOR'S REMEDIES ON DEFAULT: If Lessee defaults in the payment of
Fixed Basic Rent, or any Additional Rent, or defaults in the
performance of any of the other covenants and conditions hereof or
permits the Premises to become deserted, abandoned or vacated, Lessor
may give Lessee notice of such default, and if Lessee does not cure any
Fixed Basic Rent or Additional Rent default within five (5) business
days or other default within thirty (30) days after giving of such
notice (or if such other default is of such nature that it cannot be
completely cured within such period, if Lessee does not commence such
curing within such thirty (30) days and thereafter proceed with
reasonable diligence and in good faith to cure such default), then
Lessor may terminate this Lease on not less than ten (10) days notice
to Lessee, and on the date specified in said notice, Lessee's right to
possession of the Premises shall cease but Lessee shall remain liable
as hereinafter provided. If this Lease shall have been so terminated by
Lessor pursuant to Articles 12 or 13 hereof, Lessor may at any time
thereafter resume possession of the Premises by any lawful means and
remove Lessee or other occupants and their effects. Lessee shall pay to
Lessor, on demand, such expenses as Lessor may incur, including,
without limitation, court costs and reasonable attorney's fees and
disbursements, in enforcing the performance of any obligation of Lessee
under this Lease.
14. DEFICIENCY: In any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at Lessor's option,
occupy the Premises or cause the Premises to be redecorated, altered,
divided, consolidated with other adjoining premises or otherwise
changed or prepared for reletting, and may relet the Premises or any
part thereof, as agent of Lessee or otherwise, for a term or terms to
expire prior to, at the same time as or subsequent to, the original
Expiration Date of this Lease, at Lessor's option and receive the rent
therefor. Rent so received shall be applied first to the payment of
such expenses as Lessor may have incurred in connection with the
recovery of possession, redecorating, altering, dividing, consolidating
with other adjoining premises, or otherwise changing or preparing for
reletting, and the reletting, including brokerage and reasonable
attorney's fees, and then to the payment of damages in amounts equal to
the Fixed Basic Rent and Additional Rent hereunder and to the costs and
expenses of performance of the other covenants of Lessee as herein
provided. Lessee agrees, in any such case, whether or not Lessor has
relet, to pay to Lessor damages equal to the Fixed Basic Rent and
Additional Rent from the date of such default to the date of expiration
of the term demised and other sums herein agreed to be paid by Lessee,
less the net proceeds of the reletting, if any, received by Lessor
during the remainder of the unexpired term hereof, as ascertained from
time to time, and the same shall be payable by Lessee on the several
rent days above specified. Lessee shall not be entitled to any surplus
accruing as a result of any such reletting. In reletting the Premises
as aforesaid, Lessor may grant rent concessions, and Lessee shall not
be credited therewith. No such reletting shall constitute a surrender
and acceptance or be deemed evidence thereof. If Lessor elects,
pursuant hereto, actually to occupy and use the Premises or any part
thereof during any part of the balance of the Term as originally fixed
or since extended, there shall be allowed against Lessee's obligation
for rent or damages as herein defined, during the period of Lessor's
occupancy, the reasonable value of such occupancy, not to exceed, in
any event, the Fixed Basic Rent and Additional Rent herein reserved and
such occupancy shall not be construed as a release of Lessee's
liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as Damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee,
15
to the date of re-entry, expiration and/or dispossess, an amount equal
to the difference between the Fixed Basic Rent and Additional Rent
reserved in this Lease from the date of such default to the date of
Expiration of the original Term demised and the then fair and
reasonable rental value of the Premises for the same period. Said
Damages shall become due and payable to Lessor immediately upon such
breach of this Lease and without regard to whether this Lease be
terminated or not, and if this Lease be terminated, without regard to
the manner in which it is terminated. In the computation of such
Damages, the difference between an installment of Fixed Basic Rent and
Additional Rent thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment
was payable shall be discounted to the date of such default at the rate
of not more than eight percent (8%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. SUBORDINATION OF LEASE: This Lease shall, at Lessor's option, or at the
option of any holder of any underlying lease or holder of any mortgage
or trust deed (hereinafter sometimes collectively referred to as
"Senior Encumbrances"), be subject and subordinate to any such
underlying leases and to any such mortgage or trust deed which may now
or hereafter affect the real property of which the Premises form a
part, and also to all renewals, modifications, consolidations and
replacements of said underlying leases and said first mortgage or trust
deed. Although no instrument or act on the part of Lessee shall be
necessary to effectuate such subordination, Lessee will, nevertheless,
execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holders of said
mortgage or trust deed or by any of the Lessor's under such underlying
leases. If any underlying lease to which this Lease is subject
terminates, Lessee shall, on timely request, attorn to the owner of the
reversion.
Lessor agrees to use its commercially reasonable efforts on behalf of
Lessee to obtain a non-disturbance agreement from the holder of any of
the aforesaid underlying leases or mortgages or trust deeds; however,
this Lease is not conditioned upon the same being granted and any
charges assessed by the holders of such underlying leases or mortgages
or trust deeds in connection with the obtaining of the aforesaid
non-disturbance agreement shall be paid by Lessee.
16. SECURITY DEPOSIT: Lessee shall deposit with Lessor on the signing of
this Lease, the Security Deposit as defined in the Preamble for the
full and faithful performance of Lessee's obligations under this Lease,
including without limitation, the surrender of possession of the
Premises to Lessor as herein provided. If Lessor applies any part of
said Security Deposit to cure any default of Lessee, Lessee shall, on
demand, deposit with Lessor the amount so applied so that Lessor shall
have the full Security Deposit on hand at all times during the Term of
this Lease. In the event a bona fide sale, subject to this Lease,
Lessor shall have the right to transfer the Security Deposit to the
vendee, and Lessor shall be considered released by Lessee from all
liability for the return of the Security Deposit; and Lessee agrees to
look solely to the new lessor for the return of the Security Deposit,
and it is agreed that this shall apply to every transfer or assignment
made of the Security Deposit to the new lessor, provided, however, the
new vendee agrees to hold the Security Deposit under the same basis as
Lessor. Provided this Lease is not in default, the Security Deposit
(less any portions thereof used, applied or retained by Lessor in
accordance with the provisions of this Article 16), shall be returned
to Lessee after the expiration or sooner termination of this Lease and
after delivery of the entire Premises to Lessor in accordance with the
provisions of this Lease. Lessee covenants that it will not assign or
encumber or attempt to assign or encumber the Security Deposit and
Lessor shall not be bound by any such assignment, encumbrance or
attempt thereof.
In the event of the insolvency of Lessee, or in the event of the entry
of a judgement in any court against Lessee which is not discharged
within thirty (30) days after entry, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of
the State of New Jersey or the United States of America, then in such
event, Lessor may require the Lessee to deposit additional security in
an amount which in Lessor's sole judgement would be sufficient to
adequately assure Lessee's performance of all of its obligations under
this Lease including all payments subsequently accruing. Failure of
Lessee to deposit the
16
security required by this Article 16 within ten (10) days after
Lessor's written demand shall constitute a material breach of this
Lease by Lessee.
17. RIGHT TO CURE LESSEE'S BREACH: If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee
(except that no notice need be given in case of emergency), cure such
breach at the expense of Lessee and the reasonable amount of all
expenses, including attorney's fees, incurred by Lessor in so doing
(whether paid by Lessor or not) shall be deemed Additional Rent payable
on demand.
18. MECHANIC'S LIENS: Lessee shall, within fifteen (15) days after notice
from Lessor, discharge or satisfy by bonding or otherwise any mechanic
liens for materials or labor claimed to have been furnished to the
Premises on Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR: Lessor may enter the Premises but shall
not be obligated to do so (except as required by any specific provision
of this Lease) at any reasonable time during business hours of Lessee
on reasonable notice to Lessee (except that no notice need be given in
case of emergency) for the purpose of inspection or the making of such
repairs, replacement or additions in, to, on and about the Premises or
the Building, as Lessor deems necessary or desirable. Lessee shall have
no claims or cause of action against Lessor by reason thereof. In no
event shall Lessee have any claim against Lessor for interruption of
Lessee's business, however occurring, including but not limited to that
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the structural
and non-structural portions thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION: Subject
to intervening laws, ordinances, regulations and executive orders,
Lessor agrees as part of Operating Costs, to furnish the following:
a. Lessor shall furnish hot and cold water to the Premises for
ordinary lavatory, drinking, and office cleaning purposes.
Lessor shall install or arrange to have the water company
install a water meter at Lessee's expense which Lessee shall
thereafter maintain at Lessee's expense and Lessee shall pay
for water consumed as shown on said meter. Additionally,
Lessor shall furnish rubbish removal services as required (as
distinguished from janitorial services and Premises cleaning,
which shall be arranged and paid for directly by Lessee) and
shall maintain and repair, as required, the exterior areas of
the Building and, in connection therewith, furnish landscaping
and snow removal services and otherwise keep such areas
adequately lighted, reasonably clean and in good order,
condition and repair.
x. Xxxxxx shall provide Lessee with conduits, pipes, tubes and
wiring for the supply of electricity, gas, water, sewer and
telephone service to the point of connection to the Premises.
All services other than as provided pursuant to Section a.
hereof to be provided to, or which shall be necessary for the
conduct of, Lessee's operations within the Premises,
including, without limitation and for purposes of
illustration, the furnishing of electric current and gas
energy (subject, however, to the provisions of Article 6),
telephone, janitorial, cleaning, security and any other
utility or service which Lessee shall deem necessary or
desirable, shall be separately arranged, metered, maintained
and paid for by Lessee. Lessee's utilities shall be separately
metered, except as otherwise provided in this Lease, and all
costs of any utilities not separately metered shall be
reasonably apportioned by Lessor and shall constitute
Additional Rent. Lessor shall not provide cleaning services to
any portion of the Premises. Lessee, at its sole cost and
expense, shall cause the Premises to be kept clean and in a
good and orderly condition as befits similar buildings in the
Business Park. In the event Lessee shall employ a contractor
to provide any services to the Premises, such contractor (and
any subcontractors) shall agree to employ only such labor as
will not result in jurisdictional disputes or strikes. Lessee
shall inform Lessor of the names of any contractor or
subcontractor Lessee proposes to use in the Premises at least
fifteen (15) days prior to the beginning of work by such
contractor or subcontractors.
c. Notwithstanding any provisions of this Lease, neither party
shall be liable for failure to perform its obligations
(excluding Lessee's obligations to pay Fixed Basic Rent
17
and Additional Rent) when such failure is due to Force
Majeure, as hereinafter defined. Lessor shall not be liable,
under any circumstances, including, but not limited to, that
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof,
for loss of or injury to Lessee or to property, however
occurring, through or in connection with or incidental to the
furnishings of, or failure to furnish, any of the aforesaid
services or for any interruption to Lessee's business, however
occurring.
Lessor shall not be liable in damages or otherwise, for any
delay or failure in Lessee's receiving any such utilities and
in no event shall such delay or failure, regardless of cost,
constitute an eviction of Lessee or termination of this Lease.
d. Lessee with access to the Premises 24 hours per day each day
of the year.
x. Xxxxxx shall keep, replace and maintain in good order and
condition and repair the Common Areas and the roof, roofdeck,
outside walls, foundations, footings, load bearing walls and
concrete floors, subject, however, the cost of same to the
extent applicable shall be paid by the Lessee, as the Lessee's
Percentage share, pursuant to the provisions of Article 23
hereof.
21. INTERRUPTION OF SERVICES OR USE: Interruption or curtailment of any
service maintained in the Building or at the Property, if caused by
Force Majeure, as hereinafter defined, shall not entitle Lessee to any
claim against Lessor or to any abatement in rent, and shall not
constitute a constructive or partial eviction, unless Lessor fails to
take measures as may be reasonable under the circumstances to restore
the service without undue delay. If the Premises are rendered
untenantable in whole or in part, for a period of five (5) consecutive
business days, by the making of repairs, replacements or additions,
other than those made with Lessee's consent or caused by misuse or
neglect by Lessee, or Lessee's agents, servants, visitors or licensees,
there shall be a proportionate abatement of Fixed Basic Rent from and
after said fifth (5th) consecutive business day and continuing for the
period of such untenantability. In no event, shall Lessee be entitled
to claim a constructive eviction from the Premises unless Lessee shall
first have notified Lessor in writing of the condition or conditions
giving rise thereto, and if the complaints be justified, unless Lessor
shall have failed, within a reasonable time after receipt of such
notice, to remedy, or commence and proceed with due diligence to remedy
such condition or conditions, all subject to Force Majeure as
hereinafter defined.
22. ELECTRICITY/GAS: Lessor shall cause electricity and gas to be supplied
to the Building and to permit Lessee to receive electricity for
Lessee's use of the heating, ventilation and air conditioning ("HVAC")
system ("Building Standard Office Electrical Service"). Lessee shall
obtain and pay for Lessee's separate supply of electric current and gas
energy by direct application to, and arrangement with, the public
utility companies servicing the Building. Lessor or the applicable
utility company shall provide such meters used to measure such
electricity and gas service. Lessee shall pay all charges with respect
to consumption of electricity and gas applicable to the Premises
directly to the public utility servicing the Building. If, pursuant to
a Legal Requirement or the policies or operating practices of the
public utility company servicing the Building, Lessee is no longer
permitted to obtain electrical energy or gas directly from the public
utility company, Lessor will furnish electrical energy and/or gas to
the Premises either, at Lessor's option, on a "check-metering" basis or
a rent inclusion basis. Lessor shall give Lessee notice at least thirty
(30) days prior to the date on which Lessor shall commence furnishing
electrical energy and/or gas to the Premises (unless such notice is not
feasible under the circumstances, in which event Lessor will give
Lessee such notice as is reasonably possible), which notice will set
forth the terms on which Lessor will so furnish electrical energy
and/or gas to the Premises. If any utilities are not (or cannot be)
separately metered or assessed or are only partially separately metered
or assessed and are used in common with other lessees of the Building,
Lessee will pay to Lessor an equitable apportionment of such charges
for utilities used in common with other lessees of the Building, based
on the square footage of floor space leased to each lessee using such
common facilities, the average electrical or gas consumption of each
lessee and other pertinent considerations, in addition to Lessee's
payment of the separately metered charges. Lessee shall defend,
indemnify and hold Lessor harmless from and reimburse Lessor for all
liability, damages, costs, fees, expenses, penalties and charges
(including, but not limited to,
18
attorneys' fees and disbursements) incurred in connection with (i)
Lessee's failure to pay for any electricity or gas provided to Lessee
hereunder or (ii) misuse or neglect by Lessee of the meters(s) and
equipment supplying the electricity or gas.
a. Lessee's use of electric current in the Premises shall not
exceed the capacity of any electrical conductors and equipment
in or otherwise serving the Premises.
b. Lessee shall not, without the prior consent of Lessor make or
perform or permit any alteration to wiring installations or
other electrical facilities or to any gas mains, gas lines or
other facilities for the supply of electric current or gas
energy located in or serving the Premises. If Lessor grants
such consent, all additional conduit, feeders and wiring and
other equipment and all gas mains, lines or other facilities
required therefor shall be provided and/or installed by Lessor
and the reasonable cost thereof shall be paid by Lessee as
Additional Rent within fifteen (15) days after demand
therefor.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a
result of any failure, defect or change in the quantity or
character of electrical or gas energy available for
redistribution to the Premises pursuant to this Paragraph nor
for any interruption in the supply and Lessee agrees that such
supply may be interrupted for inspection, repairs and
replacement and in emergencies. In any event, the full measure
of Lessor's liability for any interruption in the supply due
to Lessor's acts or omissions shall be an abatement of rent
and additional rent. In no event shall Lessor be liable for
any business interruption suffered by Lessee.
23. ADDITIONAL RENT: It is expressly agreed that Lessee will pay in
addition to the Fixed Basic Rent provided in Article 3 above,
Additional Rent equal to Lessee's Percentage (as defined in the
Preamble) of the cost for each of the categories of expenses set forth
in this Article 23.
For purposes of this Article 23, a "Lease Year" shall mean the Calendar
Year, except that the First Lease Year shall commence on the
Commencement Date and end on December 31 of such Calendar Year and the
Last Lease Year shall end upon the expiration of the Term.
a. TAXES.
i. During the Term, Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage, as defined in
the Preamble, of all taxes, assessments, general and
special, ordinary as well as extraordinary, charges,
levies and impositions or payments required to be
made in lieu thereof, including, but not limited to,
water and sewer rents and charges (collectively
referred to hereinafter as the "Taxes") presently or
hereinafter in effect, which are or may be made liens
upon or against the Building and the Property and
which are allocable to the Term.
ii. If any Taxes are levied, assessed, or imposed on the
Building or the Property or on the income or rents
derived therefrom as a substitute, in whole or in
part, for the current ad valorem real estate tax,
Lessee shall pay the same, measured however, as
though the Premises were the sole asset of Lessor.
iii. Commencing on the Commencement Date, Lessee shall pay
Lessee's Percentage of Lessor's estimate of Taxes for
the First Lease Year and as set forth in Lessor's
itemized statement for each Lease Year thereafter in
equal monthly installments, in advance, as Additional
Rent, together with Fixed Basic Rent. Following the
expiration of each Lease Year, Lessor shall furnish
Lessee with a written statement of the actual Taxes
levied against the Building and Property for such
Lease Year and Lessee shall, within thirty (30) days
after receipt of Lessor's statement, pay, as
Additional Rent, the deficiency, if any, in Taxes
payable by Lessee for such Lease Year; and if, at the
end of such Lease Year, the total amount paid by
Lessee as Lessee's Percentage is greater than the
actual amount required to be paid for such Lease
Year, then the amount of such excess will be applied
by Lessor to the
19
next succeeding monthly installment of Fixed Basic
Rent due hereunder; and if there is any such excess
during the Last Lease Year, then the amount of such
excess will be refunded to Lessee by Lessor within
ninety (90) days after Lessor's statement is
furnished. All such adjustments shall be subject to
verification pursuant to Article 23g). If the First
Lease Year and Last Lease Year is less than a period
of 365 days, then Additional Rent payable during
these respective lease years shall be the amount
equal to (i) Lessee's Percentage (as defined herein),
multiplied by (ii) the Taxes for the calendar year
which includes the First Lease Year or Last Lease
Year, as the case may be, divided by the number of
months (including any portion of a month) during the
First Lease Year or Last Lease Year, as the case may
be.
iv. Receipts. Lessor shall, upon Lessee's request,
furnish to Lessee copies of the official receipts
from relevant taxing authorities or billing entities
or other evidence reasonably satisfactory to Lessee
evidencing the payment of any Taxes.
b. OPERATING COSTS.
i. Operating Costs shall mean any or all expenses
incurred by Lessor in connection with the operation
of the Building and the Property, including all
expenses incurred as a result of Lessor's compliance
with any of its obligations hereunder other than
Lessor's Work, and such expenses shall include: (1)
salaries, wages, medical, surgical and general
welfare benefits, (including group life insurance)
pension payments and other fringe benefits of
employees of Lessor engaged in the operation and
maintenance of the Building (the salaries and other
benefits aforesaid of such employees servicing the
Building shall be comparable to those of employees
servicing similar Buildings located in the County of
Monmouth); (2) payroll taxes, worker's compensation,
uniforms and dry cleaning for the employees referred
to in subdivision (1); (3) the cost of all charges
for steam, heat, ventilation, air conditioning and
water (including sewer charges) furnished to the
common areas of the Building and/or used in the
operation of all of the service and facilities of the
Building and the cost of all charges for electricity
furnished to the public and common areas of the
Building and/or used in the operation of all of the
service and facilities of the Building including any
taxes on any such utilities; (4) the cost of all
charges for rent, casualty, war risk insurance (if
obtainable from the United States government) and of
liability insurance for the Building and the Property
to the extent that such insurance is required to be
carried by Lessor under any superior lease or
superior mortgage or if not required under any
superior lease or superior mortgage then to the
extent such insurance is carried by owners of
buildings comparable to the Building; (5) the cost of
all building supplies; (6) Repair and Maintenance
Expenses, Common Area Expenses and Common Utility
Expenses; (7) the cost of all charges for management,
window cleaning and service contracts for the
Building and the other service facilities related
thereto; (8) the cost of rentals of capital equipment
designed to result in savings or reductions in
Operating Costs. If the Building is not at least one
hundred percent (100%) occupied during any Lease
Year, or proportionate part thereof, Operating Costs
shall be equitably adjusted (by including such net
additional Operating Costs as Lessor would have
incurred) to the extent required to reflect one
hundred percent (100%) occupancy of the Building. The
aforesaid adjustment shall only be made with respect
to those items that are in fact affected by
variations in occupancy levels. Operating costs shall
not include; (a) ad ministrative wages and salaries;
(b) real estate brokerage commissions; franchise
taxes or income taxes of Lessor; (d) Taxes on the
Building and Building Area; (e) cost of painting and
decoration for any occupant's space; (f) interest and
amortization under mortgages; (g) rent payable under
any superior lease; and (h) expenditures for capital
improvements except (x) those which under generally
applied real estate practice are expensed or regarded
as deferred expenses and (xx) for capital
improvements required by law or (xxx) for capital
improvements which are designed to result in a saving
in the amount of Operating Costs. In the case of (xx)
and
20
(xxx) above, the cost for capital improvements
thereof shall be amortized (using an interest rate
equal to two percent (2%) over the prime rate as
published by the Wall Street Journal) over the useful
life of said item or ten (10) years, whichever shall
be less, and the amortized costs thereof shall be
included in Operating Costs for each Lease Year
beginning in which the costs are incurred.
ii. During the Term, Lessee shall pay to Lessor, Lessee's
Percentage of Operating Costs. Commencing on the
Commencement Date, Lessee shall pay Lessee's
Percentage of Lessor's estimate of operating costs
for the First Lease Year and as set forth in Lessor's
itemized statement for each Lease Year thereafter, in
equal monthly installments, in advance as Additional
Rent, together with Fixed Basic Rent. Following the
expiration of each Lease Year, Lessor shall furnish
Lessee with an itemized statement of the actual
Operating Costs for such Lease Year and Lessee shall,
within thirty (30) days after receipt of such
itemized statement, pay, as Additional Rent, the
deficiency, if any, in charges payable by Lessee for
such Lease Year; and if, at the end of such Lease
Year, the total amount paid by Lessee as Lessee's
Percentage is greater than the amount required to be
paid for such Lease Year, then the amount of such
excess will be applied by Lessor to the next
succeeding monthly installment of Fixed Basic Rent
hereunder; and if there is any such excess during the
Last Lease Year, then the amount of such excess will
be refunded to Lessee by Lessor within ninety (90)
days after Lessor's itemized statement is finished.
All such adjustments shall be subject to verification
pursuant to Article 23(d) hereof. If the First Lease
Year or Last Lease Year is less than a period of 365
days, then Additional Rent payable during these
respective lease years shall be the amount equal to
(i) Lessee's Percentage (as defined herein),
multiplied by (ii) the Operating Costs for the
calendar year which includes the First Lease Year or
Last Lease Year, as the case may be, divided by the
number of months (including any portion of a month)
during the First Lease Year or Last Lease Year, as
the case may be.
c REPAIR AND MAINTENANCE EXPENSES.
Repair and Maintenance Expenses shall mean all costs and
expenses incurred by Lessor for replacement, repair and
maintenance of all or any part of the Building and Property
(including the roof, roofdeck, outside walls & concrete
floor), except: (i) any portion of the Building which is not
otherwise the obligation to repair of any lessee of the
Building, (ii) any portion of the Building related to or any
vacant space unless said repair and maintenance expense is
necessary for the benefit of the Building and Property
overall.
d COMMON AREA EXPENSES.
Common Area Expenses shall mean all costs and expenses
incurred by Lessor for operating, maintaining, repairing,
and/or replacing any and all, or any part of the Common Areas
(or any installation therein, thereon, thereunder or there
over) associated with the Property including, but not limited
to, parking areas, sidewalks, curbs, grounds, on site water
lines, electric lines, gas lines, sanitary sewer lines and
storm water lines, and the total costs and expenses incurred
by Lessor for landscaping, rubbish removal, and the removal of
snow, ice and debris.
e COMMON UTILITY EXPENSES.
Common Utility Expenses shall mean all costs and expenses
incurred by Lessor for water, sewer, gas and electricity,
standby sprinkler and other utility charges for utilities
servicing the Common Areas.
f BOOKS AND REPORTS.
For the protection of Lessee, Lessor shall maintain books of
account for one (1) year which shall be open to Lessee and its
representatives at all reasonable times so Lessee can
determine that Operating Costs and Taxes have, in fact, been
paid or incurred.
21
For the purposes of this article, Lessee's representatives
shall mean only (y) Lessee's employees or (z) a certified
public accounting firm. At Lessor's request, Lessee shall
execute a confidentiality agreement reasonably acceptable to
Lessor prior to any examination of Lessor's books and records.
Any disagreement with respect to any one or more of said
charges if not satisfactorily settled between Lessor and
Lessee shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if
such an accountant cannot be agreed upon, The American
Arbitration Association may be asked by either party to select
an arbitrator, whose decision on the dispute will be final and
binding upon both parties, who shall jointly share any cost of
such arbitration. Pending resolution of said dispute the
Lessee shall pay to Lessor the sum so billed by Lessor subject
to ultimate resolution as aforesaid.
g RIGHT OF REVIEW.
Once Lessor shall have finally determined Taxes and Operating
Costs at the expiration of a Lease Year, then as to the item
so established, Lessee shall only be entitled to dispute said
charge as finally established for a period of one (1) year
after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at
the expiration of said one (1) year period.
24 COMMON AREA CHARGES: The Premises and the Building in which it is
located are within an office/industrial park known as Monmouth Shores
Corporate Park (the "Business Park"). Lessor from time to time will
incur various expenses to maintain the Business Park for the benefit of
all lessees. The Lessee shall pay Lessor, as Additional Rent, Lessee's
Business Park Share (as defined in the Preamble) of the total cost and
expenses incurred by Lessor maintaining certain areas of the Business
Park for the following items:
a The cost of maintaining Business Park signs and lessee
directories; and
b the cost of water, electricity and other utilities used in
connection with the operation and maintenance of the Business
Park and that part of any area demised to a lessee; and
c other costs reasonably incurred by Lessor to maintain the
Business Park or cost incurred for services benefiting all
lessees or occupants of the Business Park which, in the
reasonable opinion of the Lessor are services desirable to
operate the Business Park and not otherwise included or
specifically prohibited under paragraph 23 of this Lease; and
d the cost of maintaining common facilities used by all lessees
such as common grass areas, boulevard dividers, curbing and
lighting.
Nothing herein shall obligate Lessor to incur any expense or render any
services as to the Business Park, the Lessee acknowledging that Lessor
may sell any part or parcels of land located within the Business Park
and Lessor shall not be obligated to undertake at any time any service
for the Business Park. The foregoing provisions are solely to enable
Lessor to equitably allocate charges and costs, if incurred, at
Lessor's sole election.
25 LESSEE'S ESTOPPEL: Lessee shall, from time to time, on not less that
ten (10) days prior written request by Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying that the Lease is
unmodified and in full force and effect, or that the Lease is in full
force and effect as modified and listing the instruments of
modification; the dates to which the rents and charges have been paid;
and, to the best of Lessee's knowledge, whether or not Lessor is in
default hereunder, and if so, specifying the nature of the default. It
is intended that any such statement delivered pursuant to this Article
25 may be relied on by a prospective purchaser of Lessor's interest or
mortgagee of Lessor's interest or assignee of any mortgage of Lessor's
interest. Lessee shall also execute and deliver the form "Estoppel
Certificate" attached hereto as Exhibit E.
26 HOLDOVER TENANCY: If Lessee holds possession of the Premises after the
Term of this Lease, Lessee shall become a tenant from month to month
under the provisions herein provided, but at a monthly basic rental
equal to 150% of the then monthly basic rental for the
22
first month of such holdover and thereafter as provided for pursuant to
N.J.S.A. 2A:42-6 and without the requirement for demand or notice by
Lessor to Lessee demanding delivery of possession of said Premises (but
Additional Rent shall continue as provided in this Lease), which sum
shall be payable in advance on the first day of each month, and such
tenancy shall continue until terminated by Lessor, or until Lessee
shall have given to Lessor, at least sixty (60) days prior to the
intended date of termination, a written notice of intent to terminate
such tenancy, which termination date must be as of the end of a
calendar month.
27 RIGHT TO SHOW PREMISES: Lessor may show the Premises to prospective
purchasers and mortgagees; and during the six (6) months prior to
termination of this Lease, to prospective tenants, during business
hours of Lessee on reasonable notice to Lessee.
28 LESSOR'S WORK - LESSEE'S DRAWINGS:
a Lessor agrees that, prior to the commencement of the Term of
this Lease, it will do substantially all of the work in the
Premises in accordance with Exhibit C attached hereto and made
a part hereof.
b Lessee will timely supply such drawings and information to
Lessor as set forth in Exhibit C. Any delay occasioned by
Lessee's failure to timely supply such drawings and
information shall not delay the Commencement Date of the Term
and Lessee's obligations hereunder, and the same shall
commence on the date the Premises would have been delivered to
Lessee pursuant to Article 2, but for Lessee's delay.
c Lease commencement shall occur and the Commencement Date is
defined as that date when Lessor has done substantially all of
the work to be done by Lessor in accordance with Exhibit C,
unless Lessor has been precluded from completing said work as
a result of Lessee's acts or omissions including, but not
limited to, its failure to comply with Article 27(b) hereof.
Occupancy by Lessee or the delivery of a Certificate of
Occupancy by Lessor (if required pursuant to local law) shall
be prima facie evidence that Lessor has done substantially all
of the work.
29 WAIVER OF TRIAL BY JURY: To the extent such waiver is permitted by law,
the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
30 LATE CHARGE: Anything in this Lease to the contrary notwithstanding, at
Lessor's option, Lessee shall pay a Late Charge of eight percent (8%)
of any installment of Fixed Basic Rent or Additional Rent paid more
than five (5) days after the due date thereof, to cover the extra
expense involved in handling delinquent payments, said Late Charge to
be considered Additional Rent. The amount of the Late Charge to be paid
by Lessee shall be reassessed and added to Lessee's obligations for
each successive monthly period until paid.
31 LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii)
Lessee's taking actual possession for the purpose of
completing any improvement work, and to keep in full force and
effect during the entire Term and so long thereafter as
Lessee, or anyone claiming by, through or under Lessee, shall
occupy the Premises, insurance coverage as follows:
i.) Commercial General Liability Insurance with
contractual liability endorsements with respect to
the Premises and the business of Lessee in which
Lessee shall be adequately covered under limits of
liability of not less than $2,000,000 for injury or
death to any one person and $5,000,000 for injury or
death to more than one person and $1,000,000 with
respect to property damage.
ii.) Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decoration, trade fixtures, furnishings, equipment in
the Premises and all contents therein. Lessor shall
not be liable for any damage to such property of
Lessee by fire
23
or other peril includable in the coverage afforded by
the standard form of fire insurance policy with
extended coverage endorsement attached (whether or
not such coverage is in effect), no matter how
caused, it being understood that the Lessee will look
solely to its insurer for reimbursement.
iii.) Worker's Compensation Insurance in the minimum
statutory amount covering all persons employed by
Lessee.
iv.) Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings
in the area by tenants making similar uses. On or
before the Commencement Date, and thereafter at
Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in
the form of an insurance certificate.
v.) If at any time during the term of this Lease, Lessee
owns or rents more than one location, its liability
policy shall contain an endorsement to the effect
that the aggregate limit in the policy shall apply
separately to each location owned or rented by
Lessee.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured (except with respect to the coverages set
forth in clause 31(a)(ii) and 31(a)(iii)); (ii) shall be
written by one or more responsible insurance companies
licensed in the State of New Jersey satisfactory to Lessor and
in form satisfactory to Lessor; (iii) contain endorsements
substantially as follows:
"It is understood and agreed that the insurer will
give to Lessor (or any successor Lessor), c/o Cali
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx, ten (10) days prior written notice of any
material change in or cancellation of this policy."
and (iv) shall be written on an "occurrence" basis and not on
a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor on
or before the Commencement Date and at least fifteen (15) days
prior to the expiration of such policy, either a duplicate
original or an insurance certificate it being the intention of
the parties hereto that the insurance required under the terms
hereof shall be continuous during the entire Term of this
Lease and any other period of time during which pursuant to
the Term hereof, said insurance is required. Any insurance
carried by Lessee shall be in excess of and will not
contribute with the insurance carried by Lessor for injuries
or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection
Association (NFPA) National Fire Code which are applicable to
the Premises regarding it's use and occupancy of the Premises.
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 31, and in the event Lessee
believes that any such insurance coverage called for under
this Lease is insufficient, Lessee shall provide, at is own
expense, such additional insurance as Lessee deems adequate.
f. During the Term, Lessor shall maintain the following
insurance, insuring Lessor and any mortgagee, as their
respective interests may appear: (x) insurance against damage
to the Building and Property by all risks of direct physical
loss in an amount equivalent to the full replacement cost
thereof; (y) comprehensive general liability insurance against
claims for bodily injury and property damage occurring on or
about the Property in amounts customarily carried by owners of
similar buildings in the Township of Wall; and (z) insurance
against such other hazards as, from time to time, are then
commonly insured against for buildings similarly situated in
amounts
24
normally carried with respect thereto. All insurance
maintained pursuant to this Paragraph may be effected by
blanket insurance policies.
g. In the event the Premises or its contents are damaged or
destroyed by fire or other insured casualty, (i) Lessor, to
the extent of the coverage of Lessor's policies of fire
insurance, hereby waives its rights, if any, against Lessee
with respect to such damage or destruction, even if said fire
or other casualty shall have been caused, in whole or in part,
by the negligence of Lessee, and (ii) Lessee, to the extent of
the coverage of Lessee's policies of fire insurance with
extended coverage, hereby waives its rights, if any, against
Lessor with respect to such damage, or destruction, even if
said fire or other casualty shall have been caused, in whole
or in part, by the negligence of Lessor; provided, however,
such waivers of subrogation shall only be effective with
respect to loss or damage occurring during such time as
Lessor's or Lessee's policies of fire insurance (as the case
may be) shall contain in clause or endorsement providing in
substance that the aforesaid waiver of subrogation shall not
prejudice the type and amount of coverage under such policies
or the right of Lessor or Lessee (as the case may be) to
recover thereunder. If, at any time, Lessor's or Lessee's
insurance carrier refuses to write insurance which contains a
consent to the foregoing waiver of subrogation, Lessor or
Lessee, as the case may be, shall notify the party thereof in
writing, and upon the giving of such notice, the provisions of
this Section shall be null and void as to any casualty which
occurs after such notice. If Lessor's or Lessee's insurance
carrier shall make a charge for the incorporation of the
aforesaid waiver of subrogation in its policies, then the
party requesting the waiver shall promptly pay such charge to
the other party upon demand. In the event the party requesting
their waiver fails to pay such charge upon demand, the other
party shall be released of its obligation to supply such
waiver.
32. NO OTHER REPRESENTATIONS: No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making
such representation(s) or promise(s).
33. QUIET ENJOYMENT: Lessor covenants that if, and so long as, Lessee pays
Fixed Basic Rent, and any Additional Rent as herein provided, and
performs Lessee's covenants hereof, Lessor shall do nothing to affect
Lessee's right to peaceably and quietly have, hold and enjoy the
Premises for the Term herein mentioned, subject to the provisions of
this Lease.
34. INDEMNITY: Lessee shall indemnify and save harmless Lessor and its
agents against and from; (a) any and all claims (i) arising from (x)
the conduct or management by Lessee, its subtenants, licensees, its or
their employees, agents, contractors or invitees on the Premises or of
any business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, or (ii) arising from
any negligent or otherwise wrongful act or omission of Lessee or any of
its subtenants or licensees or its or their employees, agents,
contractors or invitees, and (b) all costs, expenses and liabilities
incurred in or in connection with each such claim, action or proceeding
brought thereon. In case any action or proceeding be brought against
Lessor by reason of any such claim, Lessee, upon notice from Lessor,
shall resist and defend such action or proceeding.
35. ARTICLE HEADINGS: The article headings in this Lease and position of
its provisions are intended for convenience only and shall not be taken
into consideration in any construction or interpretation of this Lease
or any of its provisions.
36. APPLICABILITY TO HEIRS AND ASSIGNS: The provisions of this Lease shall
apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the
owner, a mortgagee in possession or a term lessee of the Building, so
that in the event of any sale of the Building or of any lease thereof,
or if a mortgagee shall take possession of the Premises, the Lessor
herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder accruing thereafter, and
it shall be deemed without further agreement that the purchaser, the
term lessee of the Building, or the mortgagee in possession has assumed
and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
25
37. PARKING: Lessee's occupancy of the Premises shall include the use of
the outside parking spaces only as set forth in the Preamble, all of
which will be unassigned. The parking spaces may be used only by the
Lessee and invitees of Lessee when conducting business at the Building.
Lessee shall, upon request, promptly furnish to Lessor the license
numbers of the cars operated by Lessee and its subtenants, licensees,
invitees, concessionaires, officers and employees. Lessee agrees that
it and its employees and invitees shall not park their automobile in
parking spaces allocated to others by Lessor and shall comply with such
rules and regulations for use of the parking area(s) as Lessor may from
time to time prescribe. Lessor shall not be responsible for any damage
or theft of any vehicle in the parking area and shall not be required
to keep parking spaces clear of unauthorized vehicles or to otherwise
supervise the use of the parking area. If any vehicle of the Lessee, or
of any subtenant, licensee, concessionaire, or of their respective
officers, agents or employees, is (i) parked in any part of the Common
Areas other than the employee parking area(s) designated therefor by
Lessor, or (ii) using the parking space(s) when not conducting business
at the Building then Lessee shall pay to Lessor such reasonable penalty
as may be fixed by Lessor from time to time, provided Lessor has given
Lessee notice of such violation. All amounts due under the provisions
of this Article 37 shall be deemed to be Additional Rent.
38. LESSOR'S LIABILITY FOR LOSS OF PROPERTY: Lessor shall not be liable for
any loss of property from any cause whatsoever, including but not
limited to theft or burglary from the Premises, and any such loss
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the structural
and non-structural portions thereof, and Lessee covenants and agrees to
make no claim for any such loss at any time.
39. PARTIAL INVALIDITY: If any of the provisions 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 provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent
permitted by law.
40. BROKER: Lessee represents and warrant to Lessor that the Broker, as
defined in the Preamble is the sole broker with whom Lessee has
negotiated in bringing about this Lease and Lessee agrees to indemnify
and hold Lessor and its mortgagee(s) harmless from any and all claims
of other brokers and expenses in connection therewith arising out of or
in connection with the negotiation of or the entering into this Lease
by Lessor and Lessee. In no event shall Lessor's mortgagee(s) have any
obligation to any broker involved in this transaction.
41. PERSONAL LIABILITY: Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by
Lessor, that there shall be absolutely no personal liability on the
part of Lessor, its constituent members (to include but not be limited
to, officers, directors, partners and trustees) their respective
successors, assigns or any mortgagee in possession (for the purposes of
this Article, collectively referred to as "Lessor"), with respect to
any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of Lessor in the Building for
the satisfaction of each and every remedy of Lessee in the event of any
breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, such exculpation of liability to be
absolute and without any exceptions whatsoever.
42. NO OPTION: The submission of this Lease Agreement for examination does
not constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
43. DEFINITIONS:
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation
so that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563
of the Internal Revenue Code of 1986, as amended and as
elaborated by the Treasury
26
Regulations promulgated thereunder or any business entity in
which Lessee has more than a fifty percent (50%) interest.
b. BUSINESS PARK -- means all of the improved and unimproved
property as shown on Exhibit A-2, together with all buildings,
structures and improvements now or hereafter constructed
thereon and together with any appurtenances thereto.
c. COMMON AREAS -- shall include all that area outside the
Building including but not limited to parking areas,
sidewalks, curbs, grounds, on site water lines, electric
lines, gas lines, sanitary sewer lines and storm water lines,
and roadways associated with the Property and the Business
Park.
d. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by
way of example and not by way of limitation, acts of God;
accidents; repairs; strikes; shortages of labor, supplies or
materials; inclement weather; or, where applicable, the
passage of time while waiting for an adjustment or insurance
proceeds. Any time limits required to be met by either party
hereunder, whether specifically made subject to Force Majeure
or not, except those related to the payment of Fixed Basic
Rent or Additional Rent, shall, unless specifically stated to
the contrary elsewhere in this Lease, be automatically
extended by the number of days by which any performance called
for is delayed due to Force Majeure.
e. LESSEE'S PERCENTAGE -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee [the numerator] as compared
with the total number of gross square feet of the Building
Area (or additional buildings that may be constructed within
the Property) [the denominator] measured outside wall to
outside wall. Lessor shall also have the right to construct
additional buildings in the Property for such purposes as
Lessor may deem appropriate, and subdivide the lands for that
purpose if necessary, and upon so doing, the Property shall
become the subdivided lot on which the Building in which the
Premises is located.
f. LESSEE'S BUSINESS PARK SHARE -- The parties agree that
Lessee's Business Park Share, as defined in the Preamble,
reflects and will be continually adjusted to reflect the ratio
of the gross square foot of the area rented to Lessee [the
numerator] as compared with the total number of gross square
feet of the buildings contained in the Business Park [the
denominator] measured outside wall to outside wall. Lessor
shall also have the right to construct additional buildings in
the Business Park for such purposes as Lessor may deem
appropriate, and subdivide the lands for that purpose if
necessary.
44. LEASE COMMENCEMENT: Notwithstanding anything contained herein to the
contrary, if Lessor, for any reason whatsoever, including Lessor's
negligence except as provided for in Article 28(b), cannot deliver
possession of the Premises, as provided for in Article 28(a), to Lessee
at the commencement of the agreed Term as set forth in Article 2, this
Lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, but in that event,
the Term shall be for the full term as specified above to commence from
and after the date Lessor shall have delivered possession of the
Premises to Lessee or from the date Lessor would have delivered
possession of the Premises to Lessee but for Lessee's failure to timely
supply to Lessor such drawings and/or information required by Exhibit C
or for any other reason attributable to Lessee (herein the
"Commencement Date") and to expire midnight of the day immediately
preceding Term anniversary of the Commencement Date, and if requested
by Lessor, Lessor and Lessee shall within thirty (30) days , by a
writing signed by the parties, ratify and confirm said Commencement.
Expiration Dates, and Fixed Basic Rent due hereunder in the form
attached hereto as Exhibit F.
So long as this Lease is fully-executed by October 1, 1997 and
notwithstanding anything contained herein to the contrary, if Lessor
shall not have completed the tenant improvements within the Premises on
or before the Commencement Date as set forth in paragraph 7 of the
Preamble and provided the reason therefor has not been as a result of
Lessee's acts or omissions, then, and in such event, Lessee may cancel
this Lease upon thirty (30) days notice to Lessor, which notice may be
given on or after the thirtieth (30th) day after the
27
Commencement Date as set forth in paragraph 7 of the Preamble.
Thereafter, unless Lessor delivers possession of the Demised Premises
within thirty (30) days after Lessee's notice to Lessor, this Lease
shall terminate upon the expiration of said thirty (30) day period and
the parties shall be released from obligation under this Lease except
that Lessor shall reimburse to Lessee any prepaid rent, security
deposit and any and all amounts paid by Lessee for improvements
pursuant to Exhibit C. However, in the event Lessor's ability to
complete the tenant improvements within the Premises is delayed because
of long-lead and/or non-standard Building items ordered by Lessee, then
the Commencement Date shall not be delayed as a result thereof, Lessee
shall have no right to cancel as provided above, and the term will
start on the date that Lessor would have been able to so deliver
possession but for each long-lead and/or non-standard Building items.
However, Lessee shall be entitled to take possession of the Premises
prior to completion of such long-lead and/or, non-standard building
items, if Lessor is able to obtain a Certificate of Occupancy from the
required governmental authorities. Lessor shall use its reasonable
efforts to obtain said Certificate of Occupancy.
45. NOTICES: Any notice by either party to the other shall be in writing
and shall be deemed to have been duly given only if delivered
personally or sent by registered mail, certified mail or nationally
recognized overnight delivery service return receipt requested in a
postage paid envelope addressed, if to Lessee, at the above described
Building; if to Lessor, at Lessor's address as set forth above; or, to
either at such other address as Lessee or Lessor, respectively, may
designate in writing. Notice shall be deemed to have been duly given,
if delivered personally or by a nationally recognized overnight courier
service, on delivery thereof, and if mailed, upon the tenth (10th) day
after the mailing thereof.
46. ACCORD AND SATISFACTION: No payment by Lessee or receipt by Lessor of a
lesser amount than the rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest
stipulated Fixed Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment for Fixed Basic Rent or Additional Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such
Fixed Basic Rent and Additional Rent or pursue any other remedy
provided herein or by law.
47. EFFECT OF WAIVERS: No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this
Lease, or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent by Lessor during the
continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent,
or waiver, express or implied, by Lessor to or of any breach of any
covenant, condition or duty of Lessee be construed as a consent or
waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor.
48. LEASE CONDITION: This Lease is expressly conditioned upon Lessor
receiving the consent and approval of Lessor's mortgagee to its term
and provisions not later than thirty (30) days after its execution by
Lessee, and delivery to Lessor. Should said consent not be received
within the aforesaid time period, Lessor may, at Lessor's sole option,
cancel this Lease and return the first month's Fixed Basic Rent and
Security Deposit to Lessee, which Lessee has deposited with Lessor upon
execution of this Lease, and thereafter the parties shall have no
further obligations to each other with respect to this Lease.
49. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE: Lessee agrees to give any
mortgagees and/or trust deed holders, by registered mail, a copy of any
notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of
assignment of rents and leases or otherwise) of the address of such
mortgagees and/or trust deed holders. Lessee further agrees that, if
Lessor shall have failed to cure such default within the time provided
for in this Lease, then the mortgagees and/or trust deed holders shall
have an additional thirty (30) days within which to cure such default,
or if such default cannot be cured within that time, then such
additional time as may be necessary, if within such thirty (30) days,
any mortgagee and/or trust deed holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not
limited to commencement of foreclosure proceedings if necessary to
effect such cure), in which event this Lease shall not be terminated
while such remedies are being so
28
diligently pursued. The provisions of this paragraph 49 shall no affect
in any manner the termination rights given to Lessee under the
provisions of paragraphs 10 and 11 of this Lease.
50. LESSOR'S RESERVED RIGHT: Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public.
Access to the Building is restricted to Lessor, Lessee, their agents,
employees and contractors and to their invited visitors. In the event
of a labor dispute including a strike, picketing, informational or
associational activities directed at Lessee or any other tenant, Lessor
reserves the right unilaterally to alter Lessee's ingress and egress to
the Building or make any change in operating conditions to restrict
pedestrian, vehicular or delivery ingress and egress to a particular
location.
51. CORPORATE AUTHORITY: If Lessee is a corporation, Lessee represents and
warrants that this Lease and has been duly authorized and approved by
the corporation's Board of Directors. The undersigned officers and
representatives of the corporation represent and warrant that they are
officers of the corporation with authority to execute this Lease on
behalf of the corporation, and if so notified by Lessor within ninety
(90) days of execution hereof, Lessee will provide Lessor with a
corporate resolution confirming the aforesaid.
52. LESSEE'S EXPANSION/RELOCATION: The Lessor, in its sole discretion,
shall have the right one time during the initial lease Term or from
time to time thereafter to change the location of the Premises to other
space (the "Substituted Leased Premises") within the Business Park,
subject to the terms and conditions set forth below.
a. The Substituted Leased Premises shall contain a minimum floor
area of approximately the same number of square feet as are
contained in the Premises.
b. If the total square footage comprised by the Substituted
Leased Premises and its attributable Common Facilities exceed
the total of the Premises, the Lessee shall not be required to
pay any increase in the Fixed Basic Rent and Lessee's
Percentage shall not be increased. If, however, such total
square footage shall be less, Lessee's Fixed Basic Rent and
Lessee's Percentage shall be decreased proportionately.
c. The Lessor shall give the Lessee not less than forty-five (45)
days prior notice of Lessor's decision to relocate the Lessee;
and the Lessee agrees that no later than forty-five (45) days
from the date of its receipt of such notice it shall relocate
to the Substituted Leased Premises.
d. The Lessor shall bear and pay for the reasonable cost and
expense of any such relocation, including but not limited to,
reinstalling telephones, wiring, computers, furniture,
reprinting of stationary and moving expenses; provided,
however, that the Lessee shall not be entitled to any
compensation for damages for any interference with or
interruption of its business during or resulting from such
relocation. The Lessor shall make reasonable efforts to
minimize such interference.
e. In connection with any such relocation, the Lessor shall, at
its own cost and expense, furnish and install in (or, if
practicable, relocate to) the Substituted Leased Premises all
walls, partitions, floors, floor coverings, ceilings,
fixtures, wiring and plumbing, if any, (as distinguished from
trade fixtures, equipment, furniture, furnishings and other
personal property belonging to Lessee) required for the
Lessee's proper use and occupancy thereof, all of which items
shall be comparable in quality to those situated in the
Premises.
f. The payments of new monthly minimum rent shall commence on the
earlier of ten (10) days after Lessor has completed the
physical relocation and installation of permanent improvements
in the Substituted Leased Premises or the date that Lessee
first opens for business in the Substituted Leased Premises.
x. Xxxxxx and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes
in the monthly minimum rent payable hereunder.
29
53. MISCELLANEOUS:
a. No Underground Storage Tanks: Lessee warrants and represents
that it will, at no time, install any underground storage
tanks anywhere in the Premises or on the Property. A breach of
this covenant shall be deemed a default under the Lease, and
Lessor shall have the right to terminate the Lease upon the
happening of such event.
b. Window Treatment: Lessee shall, not without Lessor's prior
consent, install any window coverings, blinds, curtains,
shades, except, as may be otherwise consented to by Lessor.
Lessee acknowledging that Lessor intends to have all Lessees
in the building in which the Demised Premises are located use
a uniform window treatment.
c. Refuse Removal: Lessee shall be responsible for removal of its
own trash from the Premises and discharge of same to the
dumpsters located in the rear parking lot. Lessor shall,
subject to the same being included in Common Area Expenses, be
responsible for having the trash removed from dumpsters
located in the Common Areas.
x. Xxxxxx'x Consent: If Lessee believes that the Lessor has
unreasonably withheld its consent and/or delayed its consent,
then Lessee's sole remedy shall be to seek specific
performance. The Lessee shall have no right to seek money
damages.
e. Corporate Authority: If Lessee is a corporation, each
individual executing this Lease on behalf of said corporation
represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said corporation.
f. Use Permit: Lessee in cooperation with Lessor will apply to
the Planning Board of the Township of Wall for a use permit.
Lessee recognizes that the procurement of the use permit is a
condition precedent to Lessor obtaining a building permit to
undertake the construction contemplated to effectuate the
purposes of this Lease. This Lease is subject and contingent
upon Lessor obtaining either a temporary or permanent
certificate of occupancy as otherwise provided in paragraph 28
hereof. In the event Lessor does not obtain a use permit, or
having obtained a use permit, does not obtain a Certificate of
Occupancy, then Lessor shall notify Lessee of such fact, and
thereafter this Lease shall be void, without further liability
of either party to the other except to return to Lessee the
prepaid rent, if any, and the security deposit
54. TERMINATION OPTION: Lessee shall have the one-time right, as of the
third Lease Commencement Date anniversary, with six (6) months prior
written notice, to terminate this Lease if Lessee requires at least
fifty-percent (50%) more space and Lessor cannot accommodate Lessee's
expansion needs. Lessee must notify Lessor at least nine (9) months
prior to the third Lease Commencement Date anniversary of Lessee's need
for additional space. As consideration for this Termination Option,
Lessee shall reimburse Lessor the amount of SEVENTY ONE THOUSAND ONE
HUNDRED EIGHT AND 00/100 DOLLARS ($71,108.00) due and payable by Lessee
to Lessor at time of Lessee's notice to Lessor exercising its
Termination Option.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or make any claim that the Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
MONMOUTH/ATLANTIC REALTY DIGITAL LIGHTWAVE, INC.,
ASSOCIATES L.P., LESSOR LESSEE
By: Cali Sub VII, Inc.,
Managing General Partner
By: By:
------------------------ ------------------------
Xxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
30
RIDER A
RENEWAL OPTION: Lessee is hereby granted an option to renew this Lease upon the
following terms and conditions:
1. At the time of the exercise of the option to renew and at the time of
the said renewal, the Lessee shall not be in default in accordance with
the terms and provisions of this Lease, and shall be in possession of
the Premises pursuant to this Lease.
2. Notice of the exercise of the option shall be sent to the Lessor in
writing at least six (6) months before the expiration of the Term of
this Lease.
3. The renewal term shall be for the term of one (1) year, to commence at
the expiration of the term of this Lease, and all of the terms and
conditions of this Lease, other than the Fixed Basic Rent, shall apply
during any such renewal term.
4. The annual Fixed Basic Rent to be paid during the renewal term shall
not be less than that paid for the Premises during the last year of the
original Term of the Lease. If the fair rental value per square foot at
the commencement of the renewal term shall exceed the rent during the
last year of the original Term, the Lessee shall pay such fair rental
value. In determining the fair rental value, the Lessor shall notify
Lessee of the fair rental value as established by Lessor. Should Lessee
dispute Lessor's determination, then the Lessee shall be free to, at
the Lessee's sole cost and expense, employ the services of an appraiser
familiar with Buildings located within the Wall, New Jersey area
comparable to the Building, who shall be a member of MAI and who shall
render an appraisal. If the Lessor and the Lessee's appraiser cannot
agree on the fair rental value, or in such case, on an independent
appraiser acceptable to both, either party may request the American
Arbitration Association in Somerset, New Jersey to appoint such
independent appraiser who shall be a member of MAI familiar with
Buildings in the area of the Building and in such event the judgement
of a majority of the two appraisers and Lessor shall be final and
binding upon the parties. The parties shall share equally in the cost
of any such independent appraiser. Pending resolution of the issue of
fair rental value, the Lessee shall pay the Lessor as of commencement
of the renewal term, the Fixed Basic Rent as established by Lessor,
subject to retroactive adjustment upon final determination of this
issue.
--END--
Rider A - Page 1
31
EXHIBIT A
LOCATION OF PREMISES
Exhibit A - Page 1
32
EXHIBIT A-1
PROPERTY
33
EXHIBIT X-0
XXXXXXXX XXXX
00
XXXXXXX X
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and public parts of the Property shall not be
obstructed or encumbered by Lessee or used by Lessee for any purpose
other than ingress and egress to and from the Premises. The Lessee will
not use or permit to be used the sidewalk area by motor vehicles, and
will limit such vehicles to the driveway and parking areas.
2. No awnings, air conditioning units or other projections shall be
attached to the outside walls or window xxxxx of the building on the
Property or otherwise project from the building.
3. The Lessee shall not erect, make or maintain on or attach or affix to
any part of the Premises including the windows and doors, any sign,
picture or other representation or advertisement or notice of any kind,
without the express written consent of the Lessor obtained in advance.
Lessee shall have the right to apply on the main entrance door to the
Premises lettering of approved type, size and style as well as company
logo where applicable.
4. The windows in the Premises shall not be covered or obstructed by
Lessee, nor shall articles be placed on the window xxxxx or in the
halls or in any other part of the building, nor shall any articles be
thrown out of the doors or windows of the Premises.
5. Lessee shall not lay linoleum or other similar floor covering so that
the same shall come 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 first be fixed to the
floor by a paste or other material that may easily be removed with
water, the use of cement or other similar adhesive material being
expressly prohibited.
6. Lessee shall not make, or permit to be made, any unseemly or disturbing
noises nor interfere with other Lessees or those having business with
them. Lessee shall not place office machines or other equipment against
walls which divide the Premises from space leased to other Lessees.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Lessee, and Lessee shall upon the termination
of this tenancy, deliver to Lessor all keys to the Premises either
furnished to, or otherwise procured by, Lessee and in the event of the
loss of any keys so furnished, Lessee shall pay to Lessor the cost
thereof.
8. Lessee shall not keep in the Premises any explosives, cleaning fluid or
any inflammable material. Lessee shall not bring or place any bed or
bedding in the Premises and shall not use the Premises as a lodging
place.
9. Lessor shall not be responsible to Lessee for the non-observance or
violation of any of these Rules and Regulations by any other Lessee.
10. Lessee shall have the right, provided same is done in accordance with
the zoning ordinance of the municipality, to park trucks on the
property along the area wherein are located the loading docks. The
Lessee shall not park trucks in any other portion of the premises
demised.
11. The Lessee shall advise Lessor, if Lessee's S.I.C. number is changed
from that otherwise indicated in Article 16 of the Preamble to Lease
attached hereto.
12. Lessee agrees that Lessee will supply the names, addresses and
telephone numbers of at least two representatives of the Lessee who can
be contacted in the event of an emergency.
Upon notice by the Lessor to the Lessee of a breach of any of the rules
and regulations, Lessee shall, within five (5) days thereafter, comply
with such rule and regulation and in the event Lessee shall not comply,
then the Lessor may, at its discretion, either: (1) cure such condition
and add any cost and expense incurred by the Lessor therefore to the
next installment of rental due under this lease and the Lessee shall
then pay such amount, as
35
additional rent hereunder; or (2) treat such failure of the part of the
Lessee to remedy such condition as a material default of this Lease on
the part of the Lessee hereunder. If under Article 21 Lessee would have
a longer time period to cure, or to receive a notice, then, such longer
time period to cure, or to receive a notice, then such longer time
period shall be applicable to this paragraph and shall take precedence
over those as otherwise hereinbefore stated.
-- END--
36
EXHIBIT C
LESSOR'S WORK
Workletter Agreement for office space on the ground floor, at 0000 Xxxxxx
Xxxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx between MONMOUTH/ATLANTIC REALTY ASSOCIATES,
L.P., as Lessor, and DIGITAL LIGHTWAVE, INC., as Lessee.
Dated: September 15, 1997
COST OF IMPROVEMENTS:
PARTITIONS $ 24,650.00
DOORS, BUCKS, HARDWARE 5,000.00
ELECTRICAL 21,680.00
VENTILATION, AIR-CONDITIONING 5,175.00
PAINTING & VINYL WALL COVER 4,935.00
BASE, FLOORING & CARPET 18,445.00
FIRE SPRINKLER 8,600.00
MISCELLANEOUS 15,150.00
OTHER 9,783.00
SUBTOTAL $113,418.00
10% OVERHEAD 11,341.80
SUBTOTAL $124,759.80
10% GENERAL CONDITION 12,475.98
TOTAL $137,235.78
------------
RENTABLE AREA = 8,044 S.F.
TOTAL COST $137,235.78
LESS: LESSORS ALLOWANCE ($137,235.78)
------------
NET COST TO BE PAID BY LESSEE
PRIOR TO OCCUPANCY $0.00
-----
AGREED AND ACCEPTED:
DIGITAL LIGHTWAVE, INC., LESSEE
By:
--------------------------
Name:
Title:
37
DESCRIPTION OF MATERIALS
UNIT QUANTITY
---- --------
PARTITIONS:
-----------
* Demolition LF 50
* Ceiling high partition (no SAB) LF 120
* 12 foot ceiling high partition (no SAB) LF 150
* New 2 x 2 lay-in ceiling with grid (warehouse) SF 5,300
* Rework existing ceiling grid (office) SF 1,400
* Finish on mullions EA 3
DOORS, BUCKS, HARDWARE:
-----------------------
* New interior doors; s/c birch, stain grade EA 8
* New ADA lever set passage locks EA 15
* Master keying (building entrance) LS 1
ELECTRICAL:
-----------
* Electrical demolition/rewiring LS 1
* New light switches EA 5
* Three-way light switched EA 1
* New duplex receptacles (convenience) EA 20
* Separate circuits 20 AMP, 110V EA 20
* Additional exit lights EA 6
* Provide J-Box in ceiling for power pole EA 6
* Battery Pack emergency lights EA 5
* Re-locate and re-lamp light fixtures EA 27
* Additional 2 x 4 lay-in prismatic fixtures EA 50
VENTILATION AND AIR CONDITIONING:
---------------------------------
* Additional HVAC diffusers (warehouse) EA 18
* Re-balance HVAC system LS 1
* Additional HVAC returns (warehouse) EA 15
PAINTING AND WALL COVERING:
---------------------------
* Paint walls SF 10,500
* Stain new doors EA 8
* Refinish existing doors EA 7
* Paint jambs EA 15
38
BASE, FLOORING AND CARPET:
--------------------------
* Demo existing carpet SF 600
* Miscellaneous floor patching LS 1
* Install building standard VCT in technician room
(allowance of $2.50 psf, furnished and installed) SF 510
* Install building standard carpet
(allowance of $15.00 psy, furnished and installed) SY 1,000
* Vinyl cove base LF 1,000
FIRE SPRINKLER SYSTEM:
----------------------
* Additional sprinkler heads in office LS 1
* Drop riser and add heads in warehouse SF 5,400
MISCELLANEOUS:
--------------
* New glass panels/remove overhead doors LS 1
* Disconnect slop sink and water heater LS 1
* Install 4 x 5 vision panel/wood casing EA 13
OTHER:
------
* Sales tax LS 1
* Architect SF 8,044
* Relocate fire extinguishers LS 1
* Final clean up and cartage LS 1
* Permits, inspections and Certificate of Occupancy LS 1
* Janitorial clean-up SF 8,044
ASSUMPTIONS AND CLARIFICATIONS:
-------------------------------
* Office partitions or any wiring of same is not included.
J-Box in ceiling were noted.
* No allowance for computer wiring.
* No allowance for office furniture.
* No allowance for telephone system or wiring.
* All glass panels are 4 x 5 safety glass in wood casing.
* Entire plan is subject to architectural review and code requirements.
--End of "Description of Materials"--
(Exhibit C continued on next page)
39
EXHIBIT C
NOTES
RE: Workletter Agreement for office space on the ground floor at 0000 Xxxxxx
Xxxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx.
September 15, 1997
DIGITAL LIGHTWAVE, INC., LESSEE
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Lessor by Lessee, attached hereto and made a part hereof,
and further information, finish samples, and descriptions to be
supplied to Lessor, by Lessee upon full execution of this Lease.
a. Architectural drawings and specifications for Lessee's
partition layout, reflected ceiling, placement of electrical
outlets and other installations for the work to be done by
Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and
heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lease execution. Lessee agrees to approve
said plans by initialing and returning same to Lessor within three (3)
days of receipt of each plan. Upon approval of the plans initialed by
Lessee, Lessor shall file said plans with the appropriate governmental
agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Premises as shown on the
preliminary plan approved by Lessee attached hereto and described on
the "Description of Materials" schedule attached hereto, which shall
hereinafter be referred to as "The Work". "Building Standard" shall
mean the type and grade of material, equipment and/or device designated
by Lessor as standard for the Building. All items are Building Standard
unless otherwise noted. The provisions of Article 5 of the Lease shall
apply to any alterations made to the Premises after the initial work to
be performed herein.
4. Lessor has estimated the cost of The Work based upon the plans and
specifications submitted to Lessor by Lessee. Against such estimated
cost, Lessor shall credit an allowance of $137,235.78 and the remaining
balance, if any, shall be paid by Lessee prior to occupancy. Lessor
represents that the above allowance shall be sufficient to complete The
Work, as shown on the preliminary plan and as described on the
"Description of Materials" attached hereto, at no additional expense to
Lessee so long as there are no Change Orders by Lessee in accordance
with paragraph 7 herein.
5. All low partitioning, work station modules, bankscreen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's
40
sole cost and expense. Lessor's electrical contractor shall be made
available to Lessee to install, at Lessee's sole cost and expense,
telephone and computer (data) conduit, wiring and outlet boxes as
designated on the above-referenced plans or alternatively by Lessee.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Premises and the
Building risers prior to vacation of same.
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after the execution of the Lease and this Workletter
Agreement, and without invalidating any part of the Lease or Workletter
Agreement, by written agreement between Lessor and Lessee hereinafter
referred to as a Change Order. Each Change Order shall be prepared by
Lessor and signed by both Lessee and Lessor stating their agreement
upon all of the following:
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Commencement
Date as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 10% supervision
plus 10% overhead charge will be added to the cost of any Change Order.
If Lessee shall fail to approve any such Change Order within one (1)
week, the same shall be deemed disapproved in all respects by Lessee
and Lessor shall not be authorized to proceed thereon. Any increase in
the cost of The Work or the change in The Work stated in a Change Order
which results from Lessee's failure to timely approve and return said
Change Order shall be paid by the Lessee. Lessee agrees to pay to
Lessor the cost of any Change Order promptly upon receipt of an invoice
for same.
8. If Lessee elects to use the architect suggested by Lessor, this
architect becomes the Lessee's agent solely with respect to the plans,
specifications and The Work. If any change is made prior to completion
of schematic drawings and final construction documents which result in
a Change Order and additional costs, such costs shall be the
responsibility of the Lessee. Similarly, any cost savings resulting
from such Change Order(s) shall be credited to the Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and
list any portion of The Work which does not conform to this Workletter
Agreement ("Punch List"). The Lessor shall review with the Lessee all
of the items so listed and correct or complete within thirty (30) days
of occupancy any portion of The Work which fails to conform to the
requirements of this Workletter Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the
work to be performed by Lessor on Lessee's behalf. If the architectural
drawings are in conflict with the terms of the Lease, then the Lease
shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Premises shall become the property of the Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under
this provision (e.g. shelving, furniture, telephone and computer
equipment, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for
the Commencement Date, the term shall not commence until Lessor has
"substantially completed" all work to be performed by Lessor as
hereinbefore set forth in paragraph 3 above and as set forth in the
Lease; provided, however, that if Lessor shall be delayed in
substantially completing said work as a result of:
41
a. Lessee's failure to approve the plans and specifications in
accordance with paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications,
i.e., paint colors, carpet selection, etc., to Lessor by the
fifth (5th) working day after Lessor has approved the plans
and specifications submitted by Lessee referred to in
paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations
other than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Commencement Date of the term of said Lease shall be
accelerated by the number of days of such delay and Lessee's obligation
to pay Fixed Basic Rent and Additional Rent shall commence as of such
earlier date.
13. Lessor shall permit Lessee and its agents to enter the Premises prior
to the Commencement Date in order that Lessee may perform through its
own union contractors or employees such other work and decorations as
Lessee may desire at the same time Lessor's contractors are working in
the Premises. The foregoing license to enter prior to the Commencement
Date, however, is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other Lessee or its
mechanics or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation,
general liability, personal and property insurance as required
by law and in amounts no less than the amounts set forth in
Article 30 of the Lease. If at any time such entry shall cause
disharmony or interference therewith, this license may be
withdrawn by Lessor upon forty-eight (48) hours written notice
to Lessee. Such entry shall be deemed controlled by all of the
terms, covenants, provisions and conditions of said Lease,
except as to the covenant to pay Fixed Basic Rent and
Additional Rent. Lessor shall not be liable in any way for any
injury, loss or damage which may occur to any of Lessee's
decorations or installations so made prior to the Commencement
Date, the same being solely at Lessee's risk.
14. No part of the Premises shall be deemed unavailable for occupancy by
the Lessee, or shall any work which the Lessor is obligated to perform
in such part of the Premises be deemed incomplete for the purpose of
any adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of
which does not materially interfere with the Lessee's use of such part
of the Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule
deadlines; and
42
c. any other costs associated with delays in final completion.
17. This Workletter is based on the quantities and specifications listed
herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of this Lease.
18. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representa tives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: Xxxxx Xxxxxxxx FOR LESSEE:
c/o Cali Realty Corporation ---------------------
00 Xxxxxxxx Xxxxx ---------------------
Xxxxxxxx, Xxx Xxxxxx 00000 ---------------------
---------------------
If the foregoing correctly sets forth our understanding, kindly sign this letter
agreement where indicated.
MONMOUTH/ATLANTIC REALTY DIGITAL LIGHTWAVE, INC.
ASSOCIATES, L.P., LESSOR: LESSEE:
By: Cali Sub VII, Inc.
Managing General Partner
By: By:
-------------------------- ------------------------
Xxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
43
EXHIBIT C
PRELIMINARY PLAN
44
EXHIBIT D
PERMITTED ENCUMBRANCES
The following are "Permitted Encumbrances" to which this Lease (and Lessee's
estate hereunder) are and shall be subject and subordinate:
1. any and all Senior Encumbrances now or at any time hereafter in effect
or constituting liens on or against the Premises; and
2. all zoning regulations and ordinances of the State or the City and all
other laws of every kind whatsoever, whensoever enacted; and
3. utility company rights, licenses, and/or easements to maintain poles,
lines, wires, towers, stations, cables, pipes, boxes and/or other
fixtures or installations presently serving, crossing, existing, or
granted on, under or with respect to the Building Area (none of which
unreasonably or materially adversely affect Lessee's rights under this
Lease); and
4. all covenants, restrictions, easements, or reservations (if any) of
record against the Building Area (none of which unreasonably or
materially adversely affect Lessee's rights under this Lease); and
5. encroachments, overlaps, boundary line disputes and other matters which
would be disclosed by an accurate survey and inspection of the
Premises.
--END--
45
EXHIBIT E
ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
__________, ___, 199__ by and between _____________________________, as
Lessor (Landlord) and _____________________________, as Lessee,
covering those certain premises commonly known and designated as
__________ r.s.f. on the ________________ floor of
_________________________, New Jersey.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting
said premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since _______________, l9___. The Lease term
began __________________, 19___, and the rent for said premises has
been paid to and including _________________ in conformity with the
Lease agreement. No rent has been prepaid for more than two (2) months.
The fixed minimum rent being paid as above is ________________, per
month.
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, no free rent and
no offset or deduction in rent.
6. The undersigned has received or will receive payment or credit for
tenant improvement work in the total amount of __________________ (or
if other than cash, described below). If none state "none".
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the premises
or any part thereof or the real Building Area of which the premises are
a part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder and that pursuant to the terms thereof all
rental payments under said Lease shall continue to be paid to Lessor in
accordance with the terms of the Lease unless and until you are
otherwise notified in writing by MORTGAGEE, or its successor or
assigns.
10. The Lessee acknowledges all the interest of the Lessor in and to the
Lease is being duly assigned to MORTGAGEE, and pursuant to the terms
thereof, all rent payments under the Lease shall continue to be paid to
the Lessor in accordance with the terms of the Lease unless and until
the Lessee is notified otherwise in writing by MORTGAGEE or its
successors or assigns.
It is particularly noted that:
A. Under the provisions of said assignment, the Lease cannot be
terminated (either directly or by the exercise of any option
which could lead to termination) or modified in any of its
terms, or consent be given to the release of any party having
liability thereon, without the prior written consent of
MORTGAGEE, or its successors and assigns, and without such
consent no rent may be collected or accepted more than two (2)
months in advance.
B. The interest of the Lessor in said Lease has been assigned to
MORTGAGEE, for the purposes specified in the assignment.
MORTGAGEE, or its successors and assigns, assumes no duty,
liability or obligation whatever under said Lease or any
extension or renewal thereof.
C. Any notices sent to MORTGAGEE or one of its affiliates should
be sent by registered mail and addressed to:
_____________________________________.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this day of , 19 .
-------- ------------------ ---
LESSEE:
By:
---------------------------------
Exhibit E - Page (1)
46
EXHIBIT F
(COMMENCEMENT DATE AGREEMENT)
1. PARTIES
1.1 THIS AGREEMENT made the _________day of ________, 199__ is by
and between ________________ (hereinafter "Lessor") whose
address is c/o Cali Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 and _________________________
(hereinafter "Lessee") whose address is
________________________________________.
2. STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________,
199__ (hereinafter "Lease") setting forth the terms of
occupancy by Lessee of approximately ________ rentable square
feet on the _____ (___) floor (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ____________ (__) months with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 27 and 43 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 27 and 43 of the Lease that ___________, 199__ is the
Commencement Date of the Term of the Lease.
3. AGREEMENT
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The Commencement Date of the Term of the Lease is ___________ ,
199__ and the Expiration Date thereof is _____________ , 199__
and Articles 5 and 8 of the Preamble to the Lease shall be deemed
amended accordingly.
3.2 Article 9 of the Preamble to the Lease shall be deemed amended to
reflect the actual total Fixed Basic Rent to be paid by Lessee
during the Term as follows:
3.3 This Agreement is executed by the parties hereto for the purpose
of providing a record of the Commencement and Expiration Dates of
the Lease, adjust the Term of the Lease and Fixed Basic Rent
amount accordingly.
EXCEPT as amended herein, the Lease covering the Premises shall
remain in full force and effect as if the same were set forth in full
herein and Lessor and Lessee hereby ratify and confirm all the terms
and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives,
successors and permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense
to any obligation under the Lease or this Agreement or make any claim
that the Lease or this Agreement is invalid or unenforceable due to any
failure of this document to comply with ministerial requirements
including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements,
and each party hereby waives the right to assert any such defense or
make any claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their
hands and seals the date and year first above written and acknowledge
one to the other they possess the requisite authority to enter into
this transaction and to sign this Agreement.
------------------------------- ---------------------------
LESSOR LESSEE
By: Cali Sub VII, Inc.
Managing General Partner
By: By:
--------------------------- ------------------------
Xxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
Exhibit F - Page (2)
47
EXHIBIT G
LETTER OF CREDIT FORM
Exhibit G - Page (1)
