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EXHIBIT 10.20
LEASE
FROM:
OFFICE ASSOCIATES L.L.C.
LESSOR
TO:
PURCHASESOFT, INC.
LESSEE
BUILDING:
101 EISENHOWER PARKWAY
ROSELAND, NEW JERSEY 07068
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DESCRIPTION:.............................................................................................3
2. TERM:....................................................................................................3
3. BASIC RENT:..............................................................................................3
4. USE AND OCCUPANCY:.......................................................................................3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:...............................................................3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:..................................................................5
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:..............................................................5
8. ASSIGNMENT AND SUBLEASE:.................................................................................6
9. COMPLIANCE WITH RULES AND REGULATIONS:...................................................................9
10. DAMAGES TO BUILDING:.....................................................................................9
11. EMINENT DOMAIN:.........................................................................................10
12. INSOLVENCY OF LESSEE:...................................................................................10
13. LESSOR'S REMEDIES ON DEFAULT:...........................................................................10
14. DEFICIENCY:.............................................................................................11
15. SUBORDINATION OF LEASE:.................................................................................11
16. SECURITY DEPOSIT:.......................................................................................12
17. RIGHT TO CURE LESSEE'S BREACH:..........................................................................12
18. MECHANIC'S LIENS:.......................................................................................12
19. RIGHT TO INSPECT AND REPAIR:............................................................................12
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:.................................................13
21. INTERRUPTION OF SERVICES OR USE:........................................................................13
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:............................................................14
23. ADDITIONAL RENT:........................................................................................15
24. LESSEE'S ESTOPPEL:......................................................................................17
25. HOLDOVER TENANCY:.......................................................................................17
26. RIGHT TO SHOW PREMISES:.................................................................................18
27. LESSOR'S WORK - LESSEE'S DRAWINGS:......................................................................18
28. WAIVER OF TRIAL BY JURY:................................................................................18
29. LATE CHARGE:............................................................................................18
30. LESSEE'S INSURANCE:.....................................................................................18
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31. NO OTHER REPRESENTATIONS:...............................................................................20
32. QUIET ENJOYMENT:........................................................................................20
33. INDEMNITY:..............................................................................................21
34. ARTICLE HEADINGS:.......................................................................................21
35. APPLICABILITY TO HEIRS AND ASSIGNS:.....................................................................21
36. OUTSIDE PARKING SPACES:.................................................................................21
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:................................................................21
38. PARTIAL INVALIDITY:.....................................................................................22
39. LESSEE'S BROKER:........................................................................................22
40. PERSONAL LIABILITY:.....................................................................................22
41. NO OPTION:..............................................................................................22
42. DEFINITIONS:............................................................................................22
43. LEASE COMMENCEMENT:.....................................................................................23
44. NOTICES:................................................................................................24
45. ACCORD AND SATISFACTION:................................................................................24
46. EFFECT OF WAIVERS:......................................................................................24
47. LEASE CONDITION:........................................................................................24
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:.............................................................24
49. LESSOR'S RESERVED RIGHT:................................................................................25
50. CORPORATE AUTHORITY:....................................................................................25
51. AFTER-HOURS USE:........................................................................................25
52. LESSEE'S EXPANSION/RELOCATION:..........................................................................25
53. BUILDING PERMIT:........................................................................................26
</TABLE>
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LEASE, is made the 12th day of June, 2000 between OFFICE ASSOCIATES,
L.L.C. (herein referred to as "Lessor") whose address is c/o Mack-Cali Realty
Corporation, 11 Commerce Drive, Cranford, New Jersey 07016 and PURCHASESOFT,
INC. (herein referred to as "Lessee") whose address is 1 Research Drive, Suite
100, Westborough, Massachusetts 01581.
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. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
Calendar Year 2000.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred
during Calendar Year 2000.
C. Base Utility and Energy Costs: Those Utility and Energy Costs
incurred during Calendar Year 2000.
3. BUILDING shall mean 101 Eisenhower Parkway, Roseland, New Jersey.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.,
and on Saturdays from 8:00 a.m. to 1:00 p.m., but excluding those
holidays as set forth on Exhibit E attached hereto and made a part
hereof, except that Common Facilities, lighting in the Building and
Office Building Area shall be maintained for such additional hours as,
in Lessor's sole judgement, is necessary or desirable to insure proper
operating of the Building and Office Building Area.
6. COMMENCEMENT DATE is August 1, 2000 and shall for purposes hereof be
subject to Articles 27 and 43 hereof.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 1,930 gross rentable
square feet on the atrium floor as shown on Exhibit A hereto, which
includes an allocable share of the Common Facilities as defined in
Article 42(b).
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
<TABLE>
<S> <C>
Exhibit A Location of Premises
Exhibit A-1 Office Building Area
Exhibit B Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Letter of Credit Form
</TABLE>
9. EXPIRATION DATE shall be the last day of the month in which the day
before the fifth (5th) anniversary of the Commencement Date occurs.
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10. FIXED BASIC RENT shall mean: TWO HUNDRED FORTY-SIX THOUSAND
SEVENTY-FIVE AND 00/100 DOLLARS ($246,075.00) for the Term payable as
follows:
<TABLE>
<CAPTION>
YEAR: YEARLY RATE: MONTHLY INSTALLMENT:
----- ------------ --------------------
<S> <C> <C>
1 $47,285.00 $3,940.42
2 $48,250.00 $4,020.83
3 $49,215.00 $4,101.25
4 $50,180.00 $4,181.67
5 $51,145.00 $4,262.08
</TABLE>
11. LESSEE'S BROKER shall mean Weichert Commercial.
12. LESSEE'S PERCENTAGE shall be .81% subject to adjustment as provided for
in Article 42(d).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of eight (8) unreserved spaces.
15. PERMITTED USE shall be general office use and for no other purpose.
16. SECURITY DEPOSIT shall be FIFTY-SEVEN THOUSAND FOUR HUNDRED SEVENTEEN
AND 50/100 DOLLARS ($57,417.50). Lessee may deliver to Lessor, in lieu
of the cash deposit set forth in this Article an irrevocable negotiable
letter of credit issued by and drawn upon such commercial bank selected
by Lessee and acceptable to Lessor (at its sole discretion) and in form
and content acceptable to Lessor (also at its sole discretion) (the
form attached hereto as Exhibit H shall be deemed acceptable to Lessor)
for the account of Lessor, in the sum of FIFTY-SEVEN THOUSAND FOUR
HUNDRED SEVENTEEN AND 50/100 DOLLARS ($57,417.50). Said letter of
credit shall be for a term of not less than one (l) year and shall be
renewed by Lessee (without notice from Lessor) no later than forty-five
(45) days prior to its expiration, and the expiration of each
replacement thereof, until Lessor shall be required to return the
security to Lessee pursuant to the terms of this Lease but in no event
earlier than ninety (90) days after the Expiration Date, and each such
renewed letter of credit shall be delivered to Lessor no later than
forty-five (45) days prior to the expiration of the letter of credit
then held by Lessor. If any portion of the security deposit shall be
utilized by Lessor in the manner permitted by this Lease, Lessee shall,
within five (5) days after request by Lessor, replenish the security
account by depositing with Lessor, in cash or by letter of credit, an
amount equal to that utilized by Lessor. Failure of Lessee to comply
strictly with the provisions of this Article shall constitute a
material breach of this Lease and Lessor shall be entitled to present
the letter of credit then held by it for payment (without notice to
Lessee). If the cash security is converted into a letter of credit, the
provisions with respect to letters of credit shall apply (with the
necessary changes in points of detail) to such letter of credit
deposit. In the event of a bank failure or insolvency affecting the
letter of credit, Lessee shall replace same within twenty (20) days
after being requested to do so by Lessor. Lessee may reduce the Letter
of Credit by ELEVEN THOUSAND FOUR HUNDRED EIGHTY-THREE AND 50/100
DOLLARS ($11,483.50), on each anniversary of the Commencement Date,
provided that (i) this Lease is in full force and effect and (ii)
Lessee is and has not been in default hereunder.
17. TERM shall mean five (5) years from the Commencement Date, plus the
number of days, if any, to have the lease expire on the last day of a
calendar month, unless extended pursuant to any option contained
herein.
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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 which includes an allocable
share of the Common Facilities, 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 "Office Building Area") as described
on Exhibit A-1 attached hereto and made part of this Lease, together,
with the right to use in common with other lessees of the Building,
their invitees, customers and employees, those public areas of the
Common Facilities as hereinafter defined.
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. 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 and last months 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:
Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble.
If at any time during the Term of this Lease, Lessee adopts a policy
prohibiting Lessee, its employees, agents or invitees from smoking
within the Premises, Lessee shall establish a designated area within
the Premises where Lessee shall permit smoking. Lessee shall establish
such designated area at Lessee's sole expense in accordance with
Article 6 of this Lease. Such designated area shall include, among
other things, adequate area, ventilation and fire safety equipment.
Lessee hereby acknowledges that such designated area is necessary and
reasonable to prevent smoking by Lessee, Lessee's employees, agents and
invitees in unauthorized areas of the Building or Common Facilities in
violation of relevant fire and safety laws and regulations and to
prevent fire hazards within the Premises.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care of the
Premises and the fixtures and appurtenances therein, and shall, in the
use and occupancy of the Premises,
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conform to all laws, orders and regulations of the federal, state
and municipal governments or any of their departments affecting the
Premises and with any and all environmental requirements resulting
from the Lessee's use of the Premises, this covenant to survive the
expiration or sooner termination of the Lease. Lessor shall, subject
to the same being included in Operating Costs, make all necessary
repairs to the Premises, Common Facilities and to the assigned
parking areas, if any, except where the repair has been made necessary
by misuse or neglect by Lessee or Lessee's agents, servants, visitors
or licensees, in which event Lessor shall nevertheless make the repair
but Lessee shall pay to Lessor, as Additional Rent, immediately upon
demand, the costs therefor. 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 excepted.
All other property of Lessee remaining on the Premises after the last
day of the Term of this Lease shall be conclusively 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.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal,
state, county and municipal environmental law, ordinance,
rule, regulation, order, directive and requirement, now or
hereafter existing ("Environmental Laws"), applicable to the
Premises, Lessee, Lessee's operations at the Premises, or all
of them.
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 ET
SEQ., the regulations promulgated thereunder and any amending
and successor legislation and regulations ("ISRA").
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents
requested by Lessor with respect to compliance with
Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its
representatives access to the Premises, from time to time, to
conduct an environmental assessment, investigation and
sampling, all at Lessee's own expense.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants in, on, under, or about, or
migrating from or onto the Premises, the Building or the
Office Building Area, as a result of the action or omission of
Lessee or a "Lessee Representative", then, in addition to
being in default under this Lease and Lessor having all rights
available to Lessor under this Lease and by law by reason of
such default, Lessee shall, at Lessee's own expense, in
accordance with Environmental Laws, undertake all action
required by Lessor and any governmental authority, including,
without limitation, promptly obtaining and delivering to
Lessor an unconditional No Further Action Letter. For purposes
of this Article, the term "Lessee's Representative" shall mean
any shareholder, officer, director, member, partner, employee,
agent, licensee, assignee, sublessee or invitee of Lessee, or
any third party other than Lessor, or another lessee of the
Building, or a shareholder, officer, director, member,
partner, employee, agent, licensee, assignee, sublessee or
invitee of such other lessee. In no event shall any of
Lessee's remedial action involve engineering or institutional
controls, a groundwater classification exception area or well
restriction area, and Lessee's remedial action shall meet the
most stringent published or unpublished remediation standards
for soil, surface water, groundwater and drinking water.
Promptly upon completion of all required investigatory and
remedial activities, Lessee shall, at Lessee's own expense, to
Lessor's satisfaction, restore the affected
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areas of the Premises, the Building or the Office Building
Area, as the case may be, from any damage or condition caused
by the investigatory or remedial work.
(g) ENVIRONMENTAL QUESTIONNAIRE. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease,
and thereafter upon renewal of the lease, if at all, Lessee
shall complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the
Office Building Area, of which the Premises is a part, or its
environs, in the possession or under the control of Lessee,
including, without limitation, plans, reports, correspondence
and submissions. During the term of this Lease and
subsequently, promptly upon receipt by Lessee or Lessee's
Representatives, Lessee shall deliver to Lessor all
Environmental Documents concerning or generated by or on
behalf of Lessee, whether currently or hereafter existing. In
addition, Lessee shall promptly notify Lessor of any
environmental condition of which Lessee has knowledge, which
may exist in, on, under, or about, or may be migrating from or
onto the Building or the Office Building Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS.
Notwithstanding anything to the contrary set forth in this
Lease, in the event, pursuant to this Lease, Lessee is
required to undertake any sampling, assessment, investigation
or remediation with respect to the Premises, the Building or
the Office Building Area, as the case may be, then, at
Lessor's discretion, Lessor shall have the right, upon notice
to Lessee, from time to time, to perform such activities at
Lessee's expense, and all sums incurred by Lessor shall be
paid by Lessee, as Additional Rent, upon demand.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees
and personal or legal representatives from and against any and
all claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation,
counsel, engineering and other professional or expert fees,
which an indemnified party may incur resulting directly or
indirectly, wholly or partly from Lessee's actions or
omissions with regard to Lessee's obligations under this
Article.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the
terms of this Article shall be restrainable or enforceable, as
the case may be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are
not intended to limit, but to expand upon, the obligations
imposed upon Lessee under this Article 5. As used in this
Article, the term "Contaminants" shall include, without
limitation, any regulated substance, toxic substance,
hazardous substance, hazardous waste, pollution, pollutant,
contaminant, petroleum, asbestos or polychlorinated biphenyls,
as defined or referred to in any Environmental Laws. Where a
law or regulation defines any of these terms more broadly then
another, the broader definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not, without first obtaining the written consent of
Lessor, make any alterations, additions or improvements in, to or about
the Premises.
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.
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8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of any provisions of this Lease,
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 no less than ninety (90)
days 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
or relet the Premises 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, 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. 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
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.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in
the event of default by Lessee under this Lease,
Lessor may, at its option, take over all of the
right, title and interest of Lessee, as sublessor,
under such sublease, and such sublessee shall, at
Lessor's option, attorn to Lessor pursuant to the
then executory provisions of such sublease, except
that Lessor shall not (i) be liable for any previous
act or omission of Lessee under such sublease or,
(ii) be subject to any offset not expressly provided
in such sublease which theretofore accrued to such
sublease to which Lessor has not specifically
consented in writing or by any previous prepayment of
more than one month's rent.
iv. 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.
v. The Lessee and any assignee shall promptly pay to
Lessor any consideration received for any assignment
and/or all of the rent, as and when received, in
excess of the Rent required to be paid by Lessee for
the area sublet computed on the basis of an average
square foot rent for the gross square footage Lessee
has leased.
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vi. 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.
vii. In Lessor's reasonable judgment, the proposed
assignee or subtenant is engaged in a business or
activity, and the Premises, or the relevant part
thereof, will be used in a manner, which (a) is in
keeping with the then standard of the Building and
(b) is limited to the use of the Premises as general
offices.
viii. The proposed assignee or subtenant shall be an entity
which has existed for at least one (1) year and is
not then an occupant of any part of the Building or
any other building then owned by Lessor within a
five-mile radius of the Building.
ix. The proposed assignee or subtenant is not an entity
or a person with whom Lessor is or has been, within
the preceding twelve (12) month period, negotiating
to lease space in the Building.
x. There shall not be more than one (1) subtenant in the
Premises.
xi. Lessee shall not advertise the subtenancy for less
than the then current market rent per rentable square
foot for the Premises as though the Premises were
vacant.
xii. Lessee shall not have (a) publicly advertised the
availability of the Premises without prior notice to
and approval by Lessor, nor shall any advertisement
state the name (as distinguished from the address) of
the Building or (b) listed the Premises for
subletting or assignment with other than a broker,
agent or representative who waives any entitlement to
a commission or other fee in the event of a
recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's
reasonable opinion, increase the density of
population using the Demised Premises to exceed one
(1) person per 250 gross rentable square feet of
space or exceed the parking allocation presently
provided for in this Lease;
xiv. The proposed assignee or subtenant shall only use the
Premises for general offices and shall not be engaged
in any of the following:
(a) educational, including but not limited to,
instructional facilities and correspondence
schools;
(b) employment agencies;
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise
salons;
(f) small loan offices;
(g) real estate brokerage or real estate sales
offices open to the general public or
construction offices;
(h) medical or dental facilities, including
professional offices, treatment facilities,
dispensaries or laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
(k) retail stock brokerage offices; and
(l) religious organizations making facilities
available to congregations for uses other
than business purposes.
xv. The proposed assignee or subtenant shall not be
entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the
service of process in, and the jurisdiction of, the
state courts of New Jersey.
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xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for
each request for consent to any sublet or assignment
prior to its consideration of the same. 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 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. 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
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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.
e. Without limiting any of the provisions of Articles 12 and 13,
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.
f. 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 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. Lessee shall not place a load upon
any floor of the Premises exceeding the floor load per square foot area
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 date of 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 replacement 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 date of 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. Lessor need not restore fixtures and improvements owned by
Lessee.
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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, there shall either be an abatement or an
equitable reduction of the Fixed Basic Rent, and an equitable
adjustment reducing the Base Period Costs as hereinafter defined
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) days or other default within fifteen (15)
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 fifteen (15) 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.
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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, 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 six percent (6%) 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 mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages 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 mortgages or trust deed. Although no instrument or act
on the part of Lessee shall be necessary to effectuate such
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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 mortgages or trust deed or by any of
the lessor's under such underlying leases. Lessee hereby appoints
Lessor attorney-in-fact, irrevocably, to execute and deliver any such
instrument for Lessee. If any underlying lease to which this Lease is
subject terminates, Lessee shall, on timely request, attorn to the
owner of the reversion.
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 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 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 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
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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, while Lessee is not in default under any of the provisions of
this Lease, Lessor agrees to furnish, except on holidays, as set forth
on Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions
therein stated. Except as set forth on Exhibit D, Lessee shall
pay the cost of all other cleaning services required by
Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building
Hours, as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building
contains an elevator or elevators for the use of the occupants
thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC)
or D or any other provision of this Lease, Lessor shall not be
liable for failure to furnish any of the aforesaid services
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.
21. INTERRUPTION OF SERVICES OR USE:
Interruption or curtailment of any service maintained in the Building
or at the Office Building Area, 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 ten (10) 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 Rent from and after said tenth (10th)
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.
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22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
The cost of electric current which is supplied by the Lessor for use by
the Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to the Lessor at terms, classification
and rates normally charged by the public utilities corporation serving
that part of the municipality where the subject Premises are located.
a. From and after the Commencement Date, Lessee agrees to pay as
Additional Rent an estimated electrical charge of $.10 per
square foot per month, payable on the first day of each and
every month, until such time as an electrical survey can be
performed pursuant to Article 22(b) below.
b. Lessee agrees that an independent electrical engineering
consultant shall make a survey of electric power demand of the
electric lighting fixtures and the electric equipment of
Lessee used in the Premises to determine the average monthly
electric consumption thereof, and the costs of said survey
shall be borne by Lessee. The findings of said consultant as
to the average monthly electric consumption of Lessee shall,
unless objected to by Lessee within forty-five (45) days, be
conclusive and binding on Lessor and Lessee. After Lessor's
consultant has submitted its report, Lessee shall pay to
Lessor, within ten (10) days after demand therefor by Lessor,
the amount (based on the monthly consumption found by such
consultant) as owing from the Lease Term's Commencement Date,
and the then expired months, to include the then current month
and thereafter adjusted for the estimated electrical charges
already paid pursuant to Article 22(a), on the first day of
every month, in advance, the amount set forth as the monthly
consumption in said report. Said amounts shall be treated as
Additional Rent due hereunder. Proportionate sums shall be
payable for periods of less than a full month if the Term
commences or ends on any other than the first or last day of
the month. If Lessee objects to said findings, Lessee shall
nevertheless pay and continue to pay the amount determined by
Lessor's consultant until the issue is finally resolved, but
Lessee may, at its expense, seek the services of an
independent electrical consultant who shall make a survey as
provided above. If Lessor's and Lessee's consultant cannot
agree as to Lessee's consumption within thirty (30) days of
Lessee's consultant's findings either Lessor or Lessee may
request the American Arbitration Association in Somerset, New
Jersey to appoint an electrical engineering consultant whose
decision shall be final and binding on Lessor and Lessee, and
whose cost shall be shared equally. Upon the issue being
finally resolved, any overpayment made by Lessee shall be
promptly refunded.
c. In the event that there shall be an increase or decrease in
the rate schedule (including surcharges or demand
adjustments), of the public utility for the supply of Building
Standard Office Electrical Service, or the imposition of any
tax with respect to such service or increase in any such tax
following the Lease Term's commencement, the Additional Rent
payable hereunder shall be adjusted equitably to reflect the
increase or decrease in rate or imposition or increase in the
aforesaid tax. All computations shall be made on the basis of
Lessee's surveyed usage as if a meter exclusively measuring
such usage to the Premises was in place.
d. Lessee covenants that it shall notify Lessor immediately upon
the introduction of any office equipment or lighting different
from that on the Premises as of Lessor's electrical survey or
in addition to the aforesaid equipment or lighting on the
Premises as of said survey. The introduction of any new or
different equipment or lighting shall be cause for, at
Lessor's election, a resurveying of the Premises at Lessee's
expense. Lessor reserves the right to inspect the Premises to
insure compliance with this provision.
e. Lessor 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 energy available for redistribution to
the Premises pursuant to this Article 22 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 Fixed Basic
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Rent and Additional Rent, unless Lessor fails to take such
measures as may be reasonable under the circumstances to
restore such service without undue delay. In no event shall
Lessor be liable for any business interruption suffered by
Lessee.
f. Lessor, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises. Lessee, however, shall have the right to
furnish and/or install any or all of the items mentioned in
this Article 22(f).
g. Lessee's use of electrical service as contemplated herein
shall be during Building Hours, and any use in excess of said
Building Hours shall result in an adjustment as set forth in
Article 22(a) hereof to reflect such additional consumption.
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, an Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost
to Lessor, for each of the categories enumerated herein, over the "Base
Period Costs", as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred
for the Building in which the Premises are located and Office
Building Area for any Lease Year or Partial Lease Year during
the Lease Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall include, by way of illustration and not of limitation:
personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes
which may be levied against Lessor upon such wages and
salaries; supplies; repairs and maintenance; maintenance and
service contracts; painting; wall and window washing; laundry
and towel service; tools and equipment (which are not required
to be capitalized for federal income tax purposes); fire and
other insurance; trash removal; lawn care; snow removal and
all other items properly constituting direct operating costs
according to standard accounting practices (hereinafter
collectively referred to as the "Operating Costs"), but not
including depreciation of Building or equipment; interest;
income or excess profits taxes; costs of maintaining the
Lessor's corporate existence; franchise taxes; any
expenditures required to be capitalized for federal income tax
purposes, unless said expenditures are for the purpose of
reducing Operating Costs within the Building and Office
Building Area, or those which under generally applied real
estate practice are expensed or regarded as deferred expenses
or are required under any governmental or quasi-governmental
law, statute, ordinance, rule, order, requirements or
regulation, in which event the costs thereof shall be
included. The Base Operating Costs shall as be as defined in
the Preamble.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter
referred to as "Utility and Energy Costs") -- If the Utility
and Energy Costs, including any fuel surcharges or adjustments
with respect thereto, incurred for water, sewer, gas,
electric, other utilities and heating, ventilating and air
conditioning for the Building, to include all leased and
leasable areas (not separately billed or metered within the
Building) and Common Facilities electric, lighting, water,
sewer and other utilities for the Building and Office Building
Area, for any Lease Year or Partial Lease Year, during the
Term, shall be greater than the Base Utility and Energy Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage as hereinafter defined, of all such excess Utility
and Energy Costs. As used in this Article 23, the Base Utility
and Energy Costs shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building
and Office Building Area at which the Premises are located for
any Lease Year Partial Lease Year, during the Lease Term,
shall be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor
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as Additional Rent, Lessee's Percentage as hereinafter
defined, of all such excess Real Estate Taxes.
As used in this Article 23(c), the words and terms which
follow mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office
Building Area, or upon the rent, as such, payable to
the Lessor, including, but not limited to, real
estate, city, county, village, school and transit
taxes, or taxes, assessments, or charges levied,
imposed or assessed against the Building and Office
Building Area by any other taxing authority, whether
general or specific, ordinary or extraordinary,
foreseen or unforeseen. If due to a future change in
the method of taxation, any franchise, income or
profit tax shall be levied against Lessor in
substitution for, or in lieu of, or in addition to,
any tax which would otherwise constitute a Real
Estate Tax, such franchise, income or profit tax
shall be deemed to be a Real Estate Tax for the
purposes hereof; conversely, any additional real
estate tax hereafter imposed in substitution for, or
in lieu of, any franchise, income or profit tax
(which is not in substitution for, or in lieu of, or
in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for
the purposes hereof.
d. LEASE YEAR -- As used in this Article 23, Lease Year shall
mean a calendar year. Any portion of the Term which is less
than a Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
e. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage share with respect to each of
the categories as estimated for the next twelve (12) month
period (or proportionate part thereof if the last period prior
to the Lease's expiration is less than twelve (12) months) as
then known to the Lessor, and thereafter, the Lessee shall pay
as Additional Rent, Lessee's Percentage share of these costs
for the then current period affected by such advice (as the
same may be periodically revised by Lessor as additional costs
are incurred) in equal monthly installments, such new rates
being applied to any months, for which the Fixed Basic Rent
shall have already been paid which are affected by the
Operating Cost Escalation and/or Utility and Energy Cost
Escalation and/or Tax Escalation Costs above referred to, as
well as the unexpired months of the current period, the
adjustment for the then expired months to be made at the
payment of the next succeeding monthly rental, all subject to
final adjustment at the expiration of each Lease Year as
defined in Article 23(d) hereof (or Partial Lease Year if the
last period prior to the Lease's termination is less than
twelve (12) months). However, Lessor shall be reimbursed by
Lessee monthly during the first year of the Term for
additional Utility and Energy Cost Escalations resulting from
an increase in the monthly rate over the Base Utility Rate.
In the event the last period prior to the Lease's termination
is less than twelve (12) months, the Base Period Costs during
said period shall be proportionately reduced to correspond to
the duration of said final period.
f. BOOKS AND REPORTS -- For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee
and its representatives at all reasonable times so that Lessee
can determine that such Operating, Utility and Energy and Real
Estate Tax Costs have, in fact, been paid or incurred.
Lessee's representatives shall mean only (i) Lessee's
employees or (ii) a Certified Public Accounting firm, and
neither Lessee's employees nor any Certified Public Accounting
firm shall be permitted to
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(i) perform such inspection and/or audit on a contingency
basis, or (ii) perform such an inspection and/or audit for any
other tenant in the Building. At Lessor's request, Lessee
shall execute a confidentiality agreement reasonably
acceptable to Lessor prior to any examination of Lessor's
books and records. In the event Lessee disputes any one or
more of said charges, Lessee shall attempt to resolve such
dispute with Lessor, provided that if such dispute shall not
be satisfactorily settled between Lessor and Lessee, the
dispute 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 its ultimate resolution as aforesaid.
g. RIGHT OF REVIEW -- Once Lessor shall have finally determined
said Operating, Utility and Energy or Real Estate Tax 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 six (6) months
after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at
the expiration of said six (6) month period.
h. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and
Utility and Energy Cost Escalation, as established in Article
23(b) hereof, the Building is less than eighty-five percent
(85%) occupied during the establishment of the respective Base
Periods, then the Base Costs incurred with respect to said
Operating Cost or Utility and Energy Cost shall be adjusted
during any such period within the Base Period so as to reflect
eighty-five percent (85%) occupancy. Similarly, if during any
Lease Year or Partial Lease Year, subsequent to the Base
Period the Building is less than eighty-five percent (85%)
occupied, then the actual costs incurred for Operating Cost
and Utility and Energy Cost shall be increased during any such
period to reflect eighty-five percent (85%) occupancy so that
at all times after the Base Period the Operating Cost or
Utility and Energy Cost shall be actual costs, but in the
event less than eighty-five percent (85%) of the Building is
occupied during all or part of the Lease Year involved, the
Operating Cost or Utility and Energy Cost shall not be less
than that which would have been incurred had eighty-five
percent (85%) of the Building been occupied. The aforesaid
adjustment shall only be made with respect to those items that
are in fact affected by variations in occupancy levels.
24. 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 24 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 "Lessee Estoppel
Certificate" attached hereto as Exhibit F.
25. HOLDOVER TENANCY:
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under
the provisions herein provided, but at twice the monthly fixed basic
rental for the last month of the term plus the Additional Rent which
shall continue as provided in the Lease which sum shall be payable in
advance on the first day of each month, and without the requirement for
demand or notice by Lessor to Lessee demanding delivery of possession
of said Premises, and such tenancy shall continue
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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; and (ii) indemnify
Lessor against loss or liability resulting from the delay by Lessee in
so surrendering the Premises including, without limitation, any claims
made by any succeeding occupant founded on such delay. Lessee's
obligations under this Section shall survive the expiration or sooner
termination of the Lease. The time limitations described in this
Article 25 shall not be subject to extension for Force Majeure.
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the twelve (12) months prior to termination of this Lease,
to prospective tenants, during Building Hours on reasonable notice to
Lessee.
27. 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.
28. 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.
29. 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.
30. 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:
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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 FIVE MILLION AND 00/100
DOLLARS ($5,000,000.00) combined single limit per
occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be
carried (x) under a blanket policy covering the
Premises and other locations of Lessee, if any,
provided that each such policy shall in all respects
comply with this Article and shall specify that the
portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary
liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000.00) and the balance under
an umbrella policy. Notwithstanding anything to the
contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article
30 shall not modify, reduce, limit or impair Lessee's
obligations and liability under Article 33 hereof.
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 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 a duplicate original insurance policy, an
insurance binder (countersigned by the insurer), or
Evidence of Insurance (in form ACORD 27 with respect
to property insurance and ACORD 25-S with respect to
liability insurance) for each of the insurance
policies Lessee is required to carry in compliance
with its obligations under this Lease.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured; (ii) 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 Mack-Cali Realty Corporation, 11
Commerce Drive, Cranford, New Jersey, thirty (30) days prior
written notice of any material change in or cancellation of
this policy."; (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 at
least fifteen (15) days prior to the expiration of such
policy, either a duplicate original or a 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.
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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. If, at any time or from
time to time, as a result of or in connection with any failure
by Lessee to comply with the foregoing sentence or any act or
omission or commission by Lessee, its employees, agents,
contractors or licensees, or a result of or in connection with
the use to which the Premises are put (notwithstanding that
such use may be for the purposes hereinbefore permitted or
that such use may have been consented to by Lessor), the fire
insurance rate(s) applicable to the Premises shall be higher
than that which would be applicable for a business office
legally permitted therein, Lessee agrees that it will pay to
Lessor as Additional Rent, such portion of the premiums for
all Lessor's fire insurance policies in force with respect to
the building and the contents of any occupant thereof as shall
be attributable to such higher rate(s).
e. Lessor 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 30, 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. 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 a 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.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants
as set forth herein.
31. 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).
32. 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.
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33. INDEMNITY:
Lessee shall defend, 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, (z) any default by
Lessee under the terms, covenants and conditions of this Lease 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 including attorneys fees and disbursements 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.
34. 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.
35. 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.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble, all of which
will be unassigned. 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. 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. If any vehicle of the Lessee, or of any
subtenant, licensee, concessionaire, or of their respective officers,
agents or employees, is parked in any part of the Common Facilities
other than the employee parking area(s) designated therefor by Lessor,
Lessee shall pay to Lessor such penalty as may be fixed by Lessor from
time to time. All amounts due under the provisions of this Article 36
shall be deemed to be Additional Rent.
37. 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
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non-structural portions thereof, and Lessee covenants and agrees to
make no claim for any such loss at any time.
38. 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.
39. LESSEE'S BROKER:
Lessee represents and warrants to Lessor that its 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. In the event
that no broker was involved as aforesaid, then Lessee represents and
warrants to the Lessor that no broker brought about this transaction,
and Lessee agrees to indemnify and hold Lessor harmless from any and
all claims of any broker arising out of or in connection with the
negotiations of, or entering into of, this Lease by Lessee and Lessor.
40. 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.
41. 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.
42. 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 Regulations promulgated thereunder
or any business entity in which Lessee has more than a fifty
percent (50%) interest.
b. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building tenants; air conditioning
rooms; fan
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rooms; janitors' closets; electrical closets; telephone
closets; elevator shafts and machine rooms; flues; stacks;
pipe shafts and vertical ducts with their enclosing walls.
Lessor may at any time close temporarily any Common Facilities
to make repairs or changes therein or to effect construction,
repairs or changes within the Building, or to discourage
non-tenant parking, and may do such other acts in and to the
Common Facilities as in its judgement may be desirable to
improve the convenience thereof, but shall always in
connection therewith, endeavor to minimize any inconvenience
to Lessee.
c. 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.
d. 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 (including an allocable
share of all Common Facilities) [the numerator] as compared
with the total number of gross square feet of the entire
Building (or additional buildings that may be constructed
within the Office Building Area) [the denominator] measured
outside wall to outside wall, but excluding therefrom any
storage areas. Lessor shall have the right to make changes or
revisions in the Common Facilities of the Building so as to
provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose if necessary, and upon so
doing, the Office Building Area shall become the subdivided
lot on which the Building in which the Premises is located.
However, if any service provided for in Article 23(a) or any
utility provided for in Article 23(b) is separately billed or
separately metered within the Building, then the square
footage so billed or metered shall be subtracted from the
denominator and the Lessee's proportionate share for such
service and/or utility shall be separately computed, and the
Base Costs for such item shall not include any charges
attributable to said square footage. Lessee understands that
as a result of changes in the layout of the Common Facilities
from time to time occurring due to, by way of example and not
by way of limitation, the rearrangement of corridors, the
aggregate of all Building tenant proportionate shares may be
equal to, less than or greater than one hundred percent
(100%).
43. 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 27(b), cannot deliver possession of the
Premises, as provided for in Article 27(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, ratify and confirm said Commencement and
Expiration Dates by completing and signing Exhibit G attached hereto
and made a part hereof.
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44. NOTICES:
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if (i) delivered personally or
(ii) sent by registered mail or certified mail return receipt requested
in a postage paid envelope addressed or (iii) sent by nationally
recognized overnight delivery service, 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, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent
by overnight delivery service, the next business day.
45. 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.
46. 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 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 shall 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.
47. 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.
48. 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
diligently pursued.
24
<PAGE>
49. 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.
50. CORPORATE AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this
Lease 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 within fifteen (15) days of execution hereof, Lessee
will provide Lessor with a corporate resolution confirming the
aforesaid.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of said Standard Electric Service
and HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required
on any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum
of FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour for air-conditioning
service and THIRTY AND 00/100 DOLLARS ($30.00) per hour for heating
services, plus such additional percentage increase of the aforesaid
hourly sum computed by measuring the percentage increase between the
rate in effect (including fuel surcharges or adjustments) during the
month for which such overtime use is requested and the Base Rate. The
Base Rate for purposes hereof shall be the average of the rates in
effect (including surcharges and/or adjustments) during Calendar Year
2000.
In no event shall the Lessee pay less than the sum of FORTY-FIVE AND
00/100 DOLLARS ($45.00) per hour for such overtime air-conditioning
service or less than THIRTY AND 00/100 DOLLARS ($30.00) per hour for
such overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION:
The Lessor, in its sole discretion, shall have the right from time to
time to change the location of the Premises to other space (the
"Substituted Leased Premises") within the Building, 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; and the square footage of any
Common Facilities attributable to the Substituted Leased
Premises shall be approximately the same as that of the Common
Facilities attributable to 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 and its attributable Common
Facilities, 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
25
<PAGE>
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 cost and expense of any
such relocation; 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.
g. Lessor 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.
53. BUILDING PERMIT:
This Lease is expressly conditioned upon Lessor obtaining a building
permit from the appropriate government official for Lessee's Premises.
Lessor hereby agrees to make application to said government official
within five (5) days following the execution of the construction
drawings for the Premises. As used herein, construction drawings shall
mean the final plans and specifications required pursuant to Article
27(b).
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 WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
OFFICE ASSOCIATES L.L.C. PURCHASESOFT, INC.
By: Mack-Cali Realty, L.P., member
By: Mack-Cali Realty Corporation,
its general partner
/s/ James G. Nugent /s/ Terry J. Bartz
By: _______________________________ By: _________________________
James G. Nugent Name: Terry J. Bartz
Senior Vice President - Leasing Title: VP/General Counsel
26
<PAGE>
EXHIBIT A-1
OFFICE BUILDING AREA
DESCRIPTION OF PREMISES, situated in the BOROUGH OF ROSELAND, ESSEX COUNTY, NEW
JERSEY.
BEGINNING at a point on the Northerly right-of-way line of State Highway Route
280, where the same is intersected by the Easterly line of the Public Service
Electric and Gas Company right-of-way;
Thence(1) running along the said Northerly line of Route 280 South 53E -
15', 4" East, 210.37' to a point;
Thence(2) running along the Northerly line of the interchange of Route
280 and Eisenhower Parkway, South 59E - 23', 40" East 103.29'
to a point;
Thence(3) running along the same, North 81E - 51', 00" East 111.09' to a
point;
Thence(4) running along the same, North 66E - 53', 44" East 246.74' to a
point;
Thence(5) still along the same, South 85E - 15', 50" East 243.43' to a
point;
Thence(6) still along the same, North 89E - 37', 13" East 164.45' to a
point;
Thence(7) still along the same on a curve, curving to the left have a
radius of 490.00' and an arc distance of 107.80' said curve
having a chord of North 44E - 30', 54" East 107.58';
Thence(8) running along the Westerly side line of Eisenhower Parkway,
North 38E - 12', 45" East 111.95' to a point;
Thence(9) still along the same, North 35E - 21', 00" East 302.1' to
the Southwesterly line of lands of now or formerly Lougheed
Construction Co., Lot 10, Block 1, Tax Maps of Roseland;
Thence(10) running along the Southwesterly line of said Lougheed
Construction Co., and the Southwesterly line of land of now or
formerly Anthony Pacio, Lot 7, Block 1, Tax Maps of Roseland,
North 51E - 14, 40" West 540.33' to a corner in same;
Thence(11) still along the line of lands of said Pacio, South 38E - 6'
West 213.18' to a point;
Thence(12) still along the same, South 50E - 54' East 92.13'
Thence(13) still along the same, South 35E - 59', 30" West 481.85' to a
point;
Thence(14) still along the same, North 53E - 47', 30" West 262.42'
to a point on the Southwesterly side line of Public Service
Electric and Gas Co., right-of-way;
Thence(15) running along the said Southwesterly side line of said
Public Service Electric and Gas Co., right-of-way said line
being parallel to the most Easterly towers and 48.00' Easterly
as measured at right angles therefrom, South 32E - 12', 51"
West 378.16' to the point and place of BEGINNING.
CONTAINING 13.208 Acres
Description in accordance with a survey prepared by G.C. Stewart Association,
Inc., dated June 15, 1979.
Exhibit A-1 - Page 1
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs directly
in front of the Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window sills of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor. However, Lessee shall have the
right to place its name on any door leading into the Premises the size,
color and style thereof to be subject to the Lessor's approval. Lessee
shall not have the right to have additional names placed on the Building
directory without Lessor's prior written consent.
5. FLOOR COVERING: 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. 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. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other tenants or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the
cost thereof. Lessee, before closing and leaving the Premises, shall
ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided: (1) Lessee obtain's
Lessor's consent which will not be unreasonably withheld or delayed; (2)
Lessee supplies Lessor with copies of the plans and specifications of
the system; (3) such installation shall not damage the Building; and (4)
all costs of installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall be
entered into by Lessee, nor shall any machine of any kind be installed
in the Building or the Office Building Area without the prior written
consent of the Lessor. Lessee shall not employ any persons other than
Lessor's janitors for the purpose of cleaning the Premises without prior
written consent of Lessor. Lessor shall not be responsible to Lessee for
any loss of property from the Premises however occurring, or for any
damage to the effects of Lessee by such janitors or any of its
employees, or by any other person or any other cause.
Exhibit B - Page 1
<PAGE>
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the Premises
to be used for gambling, make any unusual noises in the Building, permit
to be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form or as a barber or manicure
shop. Canvassing, soliciting and peddling in the Building and the Office
Building Area are prohibited and Lessee shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Lessor, and shall be done by contractors approved by Lessor.
The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine
and only after advance notice to the superintendent of the Building. The
persons employed by Lessee for such work must be reasonably acceptable
to the Lessor. Lessee may, subject to these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises
on Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided
Lessee pays additional costs, if any, incurred by Lessor for elevator
operators or security guards, and for any other expenses occasioned by
such activity of Lessee. If, at least three (3) days prior to such
activity, Lessor requests that Lessee deposit with Lessor, as security
of Lessee's obligations to pay such additional costs, a sum of which
Lessor reasonably estimates to be the amount of such additional cost,
the Lessee shall deposit such sum with Lessor as security of such cost.
There shall not be used in the Building or Premises, either by Lessee or
by others in the delivery or receipt of merchandise, any hand trucks
except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in the elevators without the consent of the
superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present
a pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
Exhibit B - Page 2
<PAGE>
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its
business address and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of
the Building; and
e) the right to limit the space on the directory of the Building to
be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required
by Law in connection with the Lessee's use and occupancy of the
Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises. Any material within the
Premises which is determined to be hazardous shall be removed and
properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
<PAGE>
EXHIBIT C
NOTES
RE: Workletter Agreement for office space on the atrium floor at 101
Eisenhower Parkway, Roseland, New Jersey.
June 12, 2000
PURCHASESOFT, 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,
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
plans by First Floor Design designated as Scheme III dated May 3, 2000
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 THIRTY-EIGHT THOUSAND TWO
HUNDRED SEVENTY AND 36/100 ($38,270.36) and the remaining balance, if
any, shall be paid by Lessee prior to occupancy.
5. All low partitioning, workstation modules, bank screen 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 sole cost and expense.
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.
Exhibit C - Page 4
<PAGE>
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 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, 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:
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
Exhibit C - Page 5
<PAGE>
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 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
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.
Exhibit C - Page 6
<PAGE>
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 representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
<TABLE>
<CAPTION>
<S> <C> <C>
FOR LESSOR: Dave Cali FOR LESSEE:____________________________
c/o Mack-Cali Realty Corporation PurchaseSoft, Inc.
101 Eisenhower Parkway 1 Research Drive, Suite 100
Roseland, New Jersey 07068 Westborough, Massachusetts 01581
If the foregoing correctly sets forth our understanding, kindly sign this letter
agreement where indicated.
LESSOR: LESSEE:
OFFICE ASSOCIATES L.L.C. PURCHASESOFT, INC.
By: Mack-Cali Realty, L.P., member
By: Mack-Cali Realty Corporation,
its general partner
/s/ James G. Nugent /s/ Terry J. Bartz
By: _____________________________ By: ______________________________
James G. Nugent Name: Terry J. Bartz
Senior Vice President - Leasing Title: VP/General Counsel
</TABLE>
Exhibit C - Page 7
<PAGE>
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than
76 degrees (24.4 degrees C) when the outdoor dry bulb temperature is
lower than 65 degrees F (18 degrees C) but not lower than 0 degrees F
(-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) watts per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
<PAGE>
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window sills are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats. c. Wash and disinfect wash basins and
sinks using a germicidal detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles
in a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
<PAGE>
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
<PAGE>
EXHIBIT F
TENANT 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
_____ 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 _________ ,NJ.
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 _________, 200_. The Lease term began
_________, 2000, and the rent for said premises has been paid to and
including _____________, 2000 in conformity with this Lease agreement.
No rent has been prepaid for more than two (2) months. The fixed
minimum rent being paid as above is $ __________ per month. If Lessee
is not in full possession, whether Lessee has assigned the Lease,
sublet all or any portion of the Premises, or otherwise transferred any
interest in the Lease or the Premises, Lessee agrees to provide a copy
of such assignment, sublease, or transfer upon request.
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. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as
Exhibit C.
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 property 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. There are currently no valid defenses, counterclaims, off-sets,
credits, deductions in rent, or claims against the enforcement of any
of the agreements, terms, or conditions of the Lease.
10. 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 (i) 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
and (ii) no modification, revision, or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereto
of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________ , 2000
LESSEE:
___________________________________________
Name:
Title:
Exhibit F - Page 1
<PAGE>
EXHIBIT G
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 2000 is by and
between ________________ (hereinafter "Lessor") whose address is c/o
Cali Realty Corporation, 11 Commerce Drive, Cranford, New Jersey 07016
and _________________________ (hereinafter "Lessee") whose address is
______________________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________,
2000 (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 ___________, 2000 is the
Commencement Date of the Term of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is __________,
2000 and the Expiration Date thereof is _____________ , 2000
and the Lease Preamble Articles 6 and 9 shall be deemed
modified accordingly.
3.2 Article 10 of the Preamble shall be deemed modified 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 modified 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: Mack-Cali Sub__, Inc.,
its general partner
By: ______________________ By: ______________________
James G. Nugent Name:
Sr. Vice President - Leasing Title:
Exhibit G - Page 1
<PAGE>
EXHIBIT H
SAMPLE FORM
IRREVOCABLE LETTER OF CREDIT
STANDBY LETTER OF CREDIT #___________
BENEFICIARY: APPLICANT:
OFFICE ASSOCIATES L.L.C.
c/o Mack-Cali Realty Corporation
11 Commerce Drive
Cranford, New Jersey 07016
Gentlemen:
We hereby open our Irrevocable Letter of Credit #__________ in your favor for
the account of: ____________ up to an aggregate amount of US CURRENCY
(_________________US DOLLARS) available by one or more sight drafts drawn on us
accompanied by:
1) Beneficiary's signed statement either A or B as follows:
A) "___________________(Tenant) is in default under the
terms of the lease beyond any grace period provided
in the Lease; said Lease is dated (Date of your
original Lease signing) and covers property in a
portion of the building known as ___________________,
of approximately ______ square feet, located in
________________County of Westchester, State of New
York."
OR
B) " Letter of Credit #________ has not been extended
for an additional one year period from its expiration
date and said Letter of Credit will expire within
forty-five (45) days from the date of our drawing."
AND
2. The original of this Letter of Credit and Amendments, if any.
The sight draft must bear this Clause - "DRAWN UNDER (NAME OF BANK), LETTER OF
CREDIT #_________, DATED_______.
THIS LETTER OF CREDIT IS TRANSFERABLE
Transfer of this credit must conform strictly to the
terms hereof and to the conditions of the Uniform
Customs and Practice for Documentary Credits (1993
Revision) fixed by the International Chamber of
Commerce Publication #500. Should you wish to effect
a transfer under this credit, such transfer will be
subject to the return to us of this advice
accompanied by our form of transfer properly signed
by you and verified by your bankers that the
signature is valid, and subject to your payment of
our customary transfer charge.
THIS LETTER OF CREDIT EXPIRES AT OUR OFFICE ON: (DATE). This Letter of Credit
may be renewed only by affirmative written advice by the issuing bank to the
Beneficiary for an additional period of one year at least forty-five (45) days
prior to its expiration.
We hereby agree with you that drafts drawn under and in compliance with
the terms of this Credit shall be duly honored on due presentation.
---------------------------
Authorized Signature
Exhibit H - Page 1
