EXHIBIT 10.23
LEASE AGREEMENT
This Agreement is made on the day of April, 1995,
B E T W E E N: METRO PARK ASSOCIATES
A Partnership of the State of New Jersey
820 Morris Turnpike, Suite 301
Short Hills, New Jersey 07078
(hereinafter referred to as "Landlord"),
A N D: STARCOM
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. PREMISES, TERM AND USE. The Landlord does hereby lease to the Tenant,
and the Tenant does hereby rent from the Landlord the following described
premises: approximately 3,962 rentable square feet of eighth floor space in
the office building located at 33 Wood Avenue South, Iselin, New Jersey, for
a term of two (2) years, commencing May , 1995, and ending April , 1997,
to be used and occupied only and for no other purpose than general office space.
2. PAYMENT OF RENT. The Tenant covenants and agrees to pay to the
Landlord, as rent for and during the term hereof, the sum of One Hundred
Thirty-Four Thousand Seven Hundred Eight and 00/100 ($134,708.00) Dollars,
payable as follows: Sixty-Seven Thousand Three Hundred Fifty-Four and 00/100
($67,354.00) Dollars Per Annum; Five Thousand Six Hundred Twelve and 83/100
($5,612.83) Dollars Per Month, due and payable on the first day of each
calendar month. Notwithstanding anything to the contrary contained herein,
however, Tenant shall not be required to make payments of basic monthly rent
for the first and thirteenth months of the initial term of this Lease.
3. LATE PAYMENTS. In the event that payment of rent is not received by
Landlord by the tenth (10th) day of each month, Tenant shall pay, as
additional rent, a late charge equal to five (5) percent of the late payment.
Landlord shall be entitled to the same remedies for non-payment of late
charges as for non-payment of rent.
4. REPAIRS AND CARE. (a) The Tenant has examined the premises and has
entered into this Lease without any representation on the part of the
Landlord as to the condition thereof. The Tenant shall take good care of the
premises and shall, at the Tenant's own cost and expense, make all
non-structural repairs, including painting and decorating, and shall maintain
the premises in good condition and state of repair. The Tenant shall neither
encumber nor obstruct the sidewalks, driveways, yards, entrances, hallways
and stairs. The Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which it was designed
to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and
mechanical equipment.
(b) Not later than the last day of the term, Tenant shall, at Tenant's
expense, remove all Tenant's personal property and those improvements made by
Tenant which have not become the property of Landlord, including but not
limited to trade fixtures, moveable panelling 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, excepting reasonable wear and damage by
fire, the elements, casualty, or other cause not due to the misuse or neglect
by Tenant, Tenant's agents, servants, visitors or licensees. All other
property of Tenant remaining on the premises after the last day of the term
or earlier termination of this Lease
shall be conclusively deemed abandoned and may be removed by Landlord, and
Tenant shall reimburse Landlord for the cost of such removal. Landlord may
have any such property stored at Tenant's risk and expense.
5. COMPLIANCE WITH LAWS. The Tenant shall promptly comply with all laws,
ordinances, rules, regulations, requirements and directives of the Federal,
State and Municipal Governments or Public Authorities and of all their
departments, bureaus and subdivisions, applicable to and affecting the said
premises, their use and occupancy, for the correction, prevention and
abatement of nuisances, violations or other grievances in, upon or connected
with the said premises, during the term hereof; and shall promptly comply
with all orders, regulations, requirements and directives of the Board of
Fire Underwriters or similar authority and of any insurance companies which
have issued or are about to issue policies of insurance covering the said
premises and its contents, for the prevention of fire or other casualty,
damage or injury, at the Tenant's own cost and expense. Tenant shall observe
and comply with the rules and regulations hereinafter set forth in Exhibit B,
attached hereto and made a part hereof by this reference, and with such
further reasonable rules and regulations as Landlord may prescribe, upon
written notice to Tenant, for the safety, care and cleanliness of the
Building and the comfort, quiet and convenience of other occupants of the
Building.
6. ALTERATIONS AND IMPROVEMENTS. No alterations, additions or improvements
shall be made, and no climate regulating, air conditioning, cooling, heating
or sprinkler systems, television or radio antennas, heavy equipment,
apparatus and fixtures, shall be installed in or attached to the leased
premises, without the prior written consent of the Landlord. Unless otherwise
provided herein, all such alterations, additions or improvements and systems,
when made, installed in or attached to the said premises, shall belong to and
become the property of the Landlord and shall be surrendered with the
premises and as part thereof upon the expiration or sooner termination of
this Lease, without hindrance, molestation, injury or charge to Landlord.
7. TENANT'S LIABILITY INSURANCE. Tenant shall provide, at its own expense,
and keep in force during the term of this Lease and any renewal terms,
general comprehensive liability insurance with an insurance company licensed
to do business in the State of New Jersey, selected by Tenant and reasonably
acceptable to Landlord, and in an amount reasonably required by Landlord, but
in any event not less than $1,000,000.00 with respect to injury or death to
any one person and $1,000,000.00 with respect to injury or death to more than
one person in any one accident or other occurrence and $1,000,000.00 with
respect to damage to property. Such policy or policies shall include Landlord
and Landlord's mortgagee, if any, as additional insureds. Tenant agrees to
deliver certificates evidencing such insurance to Landlord within thirty (30)
days of the date of execution of this Lease and within thirty (30) days after
the date of renewal of the policies. Such insurance shall not be cancellable
without thirty (30) days prior written notice to Landlord.
8. TENANT'S CASUALTY INSURANCE. During the term of this Lease, and any
renewal terms, Tenant shall cause its improvements to the Demised Premises to
be insured for the benefit of Landlord and Tenant, as their respective
interests may appear, against loss or damage by fire and customary extended
coverage in an amount equal to the replacement value thereof, if insurance in
such amount is available. Tenant agrees to deliver a certificate evidencing
such insurance to Landlord within thirty (30) days of the date of execution
of this Lease.
9. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY. (a) If the Building is
damaged by fire or other casualty to such extent that the cost of
restoration, as determined by an insurance adjustor
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licensed in the State of New Jersey, will equal or exceed fifty (50) percent
of the replacement value of the Building (exclusive of foundations) just
prior to the occurrence of the damage, then either Landlord or Tenant may,
within sixty (60) days from the date of the damage, give the other party a
written notice of election to terminate this Lease, effective thirty (30)
days from the date of such notice. However, in the event that neither party
terminates this Lease in such circumstance, then the basic rent and
additional rent shall be abated in direct proportion to that amount of square
footage in the Demised Premises which cannot be used by Tenant for the
purposes set forth in Paragraph 1 herein. In addition, Landlord shall be
responsible for making restoration within one hundred eighty (180) days after
the date of the damage, subject to Force Majeure. In the event that
restoration is not made within said time period, Tenant shall have the right
to terminate this Lease, upon thirty (30) days written notice to Landlord.
(b) If the Building is damaged by fire or other casualty to such extent
that the cost of restoration, as determined by an insurance adjustor licensed
in the State of New Jersey, will be less than (50) percent of the replacement
value of the Building (exclusive of foundations) just prior to the occurrence
of the damage, then Landlord may, within sixty (60) days from the date of
damage, give the Tenant written notice of election to terminate this Lease,
effective thirty (30) days from the date of such notice. However, in the
event that Landlord does not terminate this Lease in such circumstance, then
the basic rent and additional rent shall be abated in direct proportion to
that amount of square footage in the Demised Premises which cannot be used by
Tenant for the purposes set forth in Paragraph 1 herein. In addition,
Landlord shall be responsible for making restoration within one hundred
eighty (180) days after the date of the damage, subject to Force Majeure. In
the event that restoration is not made within said time period, Tenant shall
have the right to terminate this Lease, upon thirty (30) days written notice
to Landlord.
(c) Notwithstanding anything to the contrary contained herein, in no
event shall the provisions of this Paragraph become effective or be
applicable if the fire or other casualty and damage shall be the result of
the carelessness, negligence or improper conduct of the Tenant or the
Tenant's agents, employees, guests, licensees, invitees, subtenants,
assignees or successors. In such case the Tenant's liability for the payment
of the rent and the performance of all the covenants, conditions and terms
hereof on the Tenant's part to be performed shall continue and the Tenant
shall be liable to the Landlord for the damage and loss suffered by the
Landlord. The Tenant shall have the proceeds of its insurance paid over to
the Landlord to the extent of the Landlord's costs and expenses to make the
repairs hereunder, and such insurance carriers shall have no recourse against
the Landlord for reimbursement. Should the insurance proceeds be insufficient
to cover Landlord's expenses, Tenant shall remain liable for any balance.
10. WAIVER OF SUBROGATION. Landlord and Tenant shall obtain, for each
policy of insurance secured by them regarding the Demised Premises, or any
Property located therein, whether required by this Lease or in addition to
that which is required by this Lease, an appropriate clause therein or
endorsement thereon, pursuant to which such insurance company waives
subrogation or consents to the waiver of the right of one party to recover
against the other.
11. INCREASE OF INSURANCE RATES. If for any reason it shall be impossible
to obtain fire and other hazard insurance on the buildings and improvements
on the leased premises, in an amount and in the form and with insurance
companies acceptable to the Landlord, the Landlord may, if the Landlord so
elects at any time thereafter, terminate this Lease and the term hereof, upon
giving to the Tenant fifteen days notice in writing of the Landlord's
intention to do so, and upon the giving of such notice, this Lease and the
term thereof shall terminate. If by reason of the use to
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which the premises are put by the Tenant or character of or the manner in
which the Tenant's business is carried on, the insurance rates for fire and
other hazards shall be increased, the Tenant shall upon demand, pay to the
Landlord, as rent, the amounts by which the premiums for such insurance are
increased. Such payment shall be paid with the next installment of rent but
in no case later than thirty (30) days after such demand, whichever occurs
sooner.
12. ASSIGNMENT AND SUBLEASE. Tenant may assign or sublease the within Lease
to any party subject to the following:
(a) In the event that the Tenant desires to sublease the whole or any
portion of the Demised Premises or assign the within Lease to any other
party, the terms and conditions of such sublease or assignment shall be
communicated to the Landlord in writing prior to the effective date of any
such sublease or assignment. Prior to such effective date, Landlord shall
have the option, exercisable in writing to Tenant, to recapture the within
Lease so that such prospective sublessee or assignee shall then become the
sole tenant of Landlord hereunder, or alternatively, to recapture the Demised
Premises, and this Tenant shall then be fully released from any and all
obligations hereunder.
(b) In the event that the Landlord elects not to recapture either the
Lease or the Demised Premises as hereinabove provided, Tenant may
nevertheless assign this Lease or sublet the whole or any portion of the
Demised Premises, subject to Landlord's prior written consent, and subject to
the consent of any mortgagee, trust deed holder or ground lessor, on the
basis of the following terms and conditions:
(1) The Tenant shall provide to Landlord the name and address of the
proposed assignee or sublessee.
(2) 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 Landlord within Tenant (10) days of its execution. Any
sublease shall expressly acknowledge that said sublessee's rights against the
Landlord shall be no greater than those of the Tenant.
(3) The tenant 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 rent and additional rent reserved herein,
through the entire term of this Lease, as the same may be renewed, extended
or otherwise modified.
(4) The Tenant and any assignee shall promptly pay to Landlord: (i) any
consideration received by Tenant for any assignment; or (ii) all of the rent,
as and when received by Tenant, in excess of the rent required to be paid by
Tenant to Landlord for the area sublet, computed on the basis of an average
square foot rent for the gross square footage Tenant has leased.
(5) In any event, acceptance by Landlord of any rent from the assignee,
or from any of the subtenants, or the failure of Landlord to insist upon a
strict performance of any of the terms, conditions and covenants herein shall
not release Tenant herein, nor any assignee assuming this Lease, from any and
all of the obligations herein during and for the entire term of this Lease,
as the same may be renewed, extended or otherwise modified.
(6) Tenant shall be responsible for payment to Landlord of Landlord's
reasonable attorneys' fees and handling costs incurred for each request for
consent to any sublet or
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assignment, with such payment to be made within (10) business days of written
notice from Landlord, but in no event beyond the effective date of assignment.
(7) Tenant acknowledges and understands that its sole remedy with
respect to any assertion that Landlord's failure to consent to any sublet or
assignment is unreasonable shall be the remedy of specific performance, and
Tenant shall have no other claim or cause of action against Landlord as a
result of Landlord's actions in refusing to consent thereto.
(c) Notwithstanding anything to the contrary contained herein, Tenant
shall have the right to assign this Lease or sublet the Demised Premises, in
whole or in part, to any parent or subsidiary of Tenant or in connection with
a merger of Tenant provided that the surviving entity in a merger shall have
a tangible net worth (determined in accordance with generally accepted
accounting principles) not less than the net worth of Tenant and its
guarantors, if any, as of the date of commencement of this Lease.
(d) Without limiting any of the provisions of this Lease, if pursuant
to the Federal Bankruptcy Code (hereinafter referred to as the "Code"), or
any similar law hereinafter enacted having the same general purpose, Tenant
is permitted to assign this Lease notwithstanding the restrictions contained
in this Lease, then adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean the deposit of
cash security in an amount equal to the sum of one (1) year's 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 Landlord for the balance of the term of the Lease, without
interest, as security for the full performance of all of Tenant's obligations
under this Lease, to be held and applied in the manner specified for security
in Paragraph 18.
(e) Except as specifically set forth above, no portion of the Demised
Premises or of Tenant'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 Tenant, nor shall Tenant pledge its interest
in this Lease or in any security deposit required hereunder.
13. INSPECTION AND REPAIR. The Tenant agrees that the Landlord and the
Landlord's agents, employees or other representatives, shall have the right
to enter into and upon the said premises or any part thereof, at all
reasonable hours, for the purpose of examining the same or making such
repairs or alterations therein as may be necessary for the safety and
preservation thereof. This clause shall not be deemed to be a covenant by the
Landlord nor be construed to create an obligation on the part of the Landlord
to make such inspection or repairs.
14. GLASS AND OTHER DAMAGE REPAIRS. In case of the destruction of or any
damage to the glass in the leased premises, or the destruction of or damage
of any kind whatsoever to the said premises caused by the carelessness,
negligence or improper conduct on the part of the Tenant or the Tenant's
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors, the Tenant shall repair the said damage ore replace or restore
any destroyed parts of the premises, as speedily as possible, at the Tenant's
own cost and expense.
15. SIGNS. The Tenant shall not place nor allow to be placed any signs of
any kind whatsoever, upon, in or about the said premises or any part thereof,
except of a design and structure and in or at such places as may be indicated
and consented to by the Landlord in writing. Landlord shall place Tenant's
name: (1) adjacent to the
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primary entrance door to the Demised Premises; (ii) the directory in the
lobby; and (iii) the outside directory, if any. Tenant shall not have the
right to have additional names placed on the directories without Landlord'
prior written consent. In case the Landlord or the Landlord's agents,
employees or representatives shall deem it necessary to remove any such signs
in order to paint or make any repairs, alterations or improvements in or upon
said premises or any part thereof, they may be so removed, but shall be
replaced at the Landlord's expense when the said repairs, alterations or
improvements shall have been completed. Any signs permitted by the Landlord
shall at all times conform with all municipal ordinances or other laws,
ordinances and regulations applicable thereto.
16. MORTGAGE PRIORITY. This Lease shall not be a lien against the said
premises in respect to any mortgages that may herebefore or hereafter be
placed upon said premises. The recording of such mortgage or mortgages shall
have preference and precedence and be superior and prior in lien to this
Lease, irrespective of the date of recording and the Tenant agrees to execute
any instruments, without cost, which may be deemed necessary or desirable, to
further effect the subordination of this Lease to any such mortgage or
mortgages. A refusal by the Tenant to execute such instruments shall entitle
the Landlord to the option of cancelling this Lease, and the term hereof is
hereby expressly limited accordingly. Tenant hereby appoints Landlord as its
attorney-in-fact to execute any documents requested by the mortgagee(s) to
effectuate the intent of this Paragraph.
17. NON-LIABILITY OF MORTGAGEE. Tenant hereby agrees not to look to the
mortgagee, as mortgagee, mortgagee in possession, or successor in title to
the property, for accountability for any security deposit required by the
Landlord hereunder, unless said sums have actually been received by said
mortgagee as security for the Tenant's performance of this Lease.
18. UTILITIES. Landlord shall provide Tenant with HVAC. Tenant shall be
responsible for its electrical use for lights and business machines by way of
an energy audit, to be performed by a licensed energy audit company chosen by
Landlord. Tenant shall also be responsible for payment to Landlord for use of
the HVAC system during hours other than 8 AM to 6 PM, Monday through Friday
and Saturdays, 8 AM to 1 PM, at the rate of $40.00 per hour.
19. EVENTS OF DEFAULT; REMEDIES. (a) If Tenant does not: (a) within (10)
days after the due date thereof pay any installment of basic annual rent,
additional rent or any other monetary obligation; or (b) within thirty (30)
days after written notice from Landlord cure a default other than a default
in the payment of basic annual rent or additional rent (provided, however,
that such thirty (30) day period shall be extended if the default is of such
a nature that it could not reasonably be cured within such period of thirty
(30) days and Tenant promptly commences and thereafter diligently pursues the
curing of such default), then, in any such event, Tenant shall be deemed in
default under this Lease.
(b) If there should occur any default on the part of the Tenant as set
forth in this Lease, or if during the term hereof the premises or any part
thereof shall be or become abandoned or deserted, vacated or vacant, or
should the Tenant be evicted by summary proceedings or otherwise, the
Landlord, in addition to any other remedies herein contained or as may be
permitted by law, may either, by force or otherwise, without being liable for
prosecution therefor, or for damages, re-enter the said premises and the same
have and again possess and enjoy.
(c) At any time or from time to time after any such expiration or
termination, the Landlord may, as agent for the Tenant or otherwise, re-let
the premises, for such term or terms (which may be greater or less than the
period which would otherwise
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have constituted the balance of the term of this Lease) and on such
conditions (which may include concessions or free rent) as the Landlord, in
its reasonable discretion, may determine, and receive the rents therefor,
applying the same: (i) to the payment of such expenses, reasonable attorney
fees and costs, as the Landlord may have been put to in re-entering and
repossessing the same and in making such repairs and alterations as may be
necessary; and (ii) to the payment of the rents due hereunder. The Tenant
shall remain liable for such rents as may be in arrears and also the rents as
may accrue subsequent to the re-entry by the Landlord, to the extent of the
difference between the rents reserved hereunder and the rents, if any,
received by the Landlord during the remainder of the unexpired term hereof,
after deducting the aforementioned expenses, fees and costs; the same to be
paid as such deficiencies arise and are ascertained each month. Landlord
shall in no way be responsible or liable for any failure to relet the Demised
Premises or any part thereof, or for any failure to collect any rent due upon
any such reletting.
(d) Upon the occurrence of an event of default as set forth in this
Lease, or should the Tenant be adjudicated a bankrupt, insolvent or placed in
receivership, or should proceedings be instituted by or against the Tenant
for bankruptcy, insolvency, receivership, agreement of composition or
assignment for the benefit of creditors, or if this Lease or the estate of
the Tenant hereunder shall pass to another by virtue of any court
proceedings, writ of execution, levy, sale, or by operation of law, the
Landlord may, if the Landlord so elects, at any time thereafter, terminate
this Lease and the term hereof, upon giving to the Tenant or to any trustee,
receiver, assignee or other person in charge of or acting as custodian of the
assets or property of the Tenant, five (5) days written notice of the
Landlord's intention to do so. Upon the giving of such notice, this Lease and
the term hereof shall end on the date fixed in such notice as if the said
date was the date originally fixed in this Lease for the expiration hereof;
and the Landlord shall have the right to remove all persons, goods, fixtures
and chattels therefrom, by force or otherwise, without liability for damages.
20. SURVIVAL OF COVENANTS. No expiration or termination of this Lease shall
relieve the Tenant of its liability and obligations under this Lease, and all
liability and obligations shall survive any expiration or termination. In the
event of an expiration or termination, whether or not the Demised Premises,
or a portion thereof, shall have been relet, Tenant shall pay to Landlord the
rent up to the time of such expiration or termination, and thereafter,
Tenant, until the expiration date as stated in Paragraph 1 herein, shall be
liable to Landlord for, and shall pay to Landlord, as and for liquidated and
agreed current damages, the difference, if any, between: (1) the basic annual
rental and additional rent as stated in this Lease; and (2) any rent and
additional rent received by Landlord from any new tenant in the Demised
Premises, or a portion thereof.
21. REMOVAL OF TENANT'S PROPERTY. Any equipment, fixtures, goods or other
property of the Tenant, not removed by the Tenant upon the termination of
this Lease, or upon any quitting, vacating or abandonment of the premises by
the Tenant, or upon the Tenant's eviction, shall be considered as abandoned
and the Landlord shall have the right, without any notice to Tenant, to sell
or otherwise dispose of the same, at the expense of Tenant, and shall not be
accountable to the Tenant for any part of the proceeds of such sale, if any.
22. REIMBURSEMENT OF LANDLORD. If the Tenant shall fail or refuse to comply
with or perform any conditions and covenants of the within Lease, the
Landlord may, if the Landlord so elects, carry out and perform such
conditions and covenants, at the cost and expense of the Tenant, and the said
cost and expense shall be payable on demand. At the option of the Landlord
the costs and
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expenses shall be added to the installment of rent due immediately thereafter
but in no case later than thirty (30) days after such demand, whichever
occurs sooner, and shall be due and payable as such. This remedy shall be in
addition to such other remedies as the Landlord may have hereunder by reason
of the breach by the Tenant of any of the covenants and conditions in this
Lease.
23. NON-PERFORMANCE BY LANDLORD. This Lease and the obligation of the
Tenant to pay the rent hereunder and to comply with the covenants and
conditions hereof, shall not be affected, curtailed, impaired or excused
because of the Landlord's inability to supply any service or material called
for herein, by reason of any act of God, riot, civil commotion, strikes,
lock-out, acts, orders or regulations of governmental authority, acts or
failure to act of the other party, fire, tornado, windstorm, adverse weather
conditions, rule, order, regulation or preemption by any governmental entity,
authority, department, agency or subdivision or for any delay which may arise
by reason of negotiations for the adjustment of any fire or other casualty
loss or for any cause beyond the control of Landlord.
24. NON-LIABILITY OF LANDLORD. The Landlord shall not be liable for any
damage or injury which may be sustained by the Tenant or any other person, as
a consequence of the failure, breakage, leakage or obstruction of the water,
plumbing, stream, sewer, waste or soil pipes, roof, drains, leaders, gutters,
valleys, downspouts or the like or of the electrical, gas, power, conveyor,
refrigeration, sprinkler, airconditioning or heating systems, elevators or
hoisting equipment; or by reason of the elements; or resulting from the
carelessness, negligence or improper conduct on the part of any other Tenant
or this Tenant or any other Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors; or attributable to any
interference with, interruption of or failure, beyond the control of the
Landlord, of any services to be furnished or supplied by the Landlord.
25. NON-WAIVER BY LANDLORD. The various rights, remedies, options and
elections of the Landlord, expressed herein, are cumulative, and the failure
of the Landlord to enforce strict performance by the Tenant of the conditions
and covenants of this Lease or to exercise any election or option or to
resort or have recourse to any remedy herein conferred or the acceptance by
the Landlord of any installment of rent after any breach by the Tenant, in
any one or more instances, shall not be construed or deemed to be a waiver or
a relinquishment for the future by the Landlord of any such conditions and
covenants, options, elections or remedies, but the same shall continue in
full force and effect.
26. HAZARDOUS SUBSTANCES. (a) Tenant agrees not to generate, store,
manufacture, refine, transport, treat, dispose of, or otherwise permit to be
present on or about the Premises any Hazardous Substances. As used herein,
Hazardous Substances shall be defined as any "hazardous chemical," "hazardous
substance" or similar term as defined in the Comprehensive Environmental
Responsibility Compensation and Liability Act, as amended (42) U.S.C. 9601,
ET SEQ.), the New Jersey Environmental Cleanup Responsibility Act, as amended
(N.J.S.A. 13:1K-6 ET SEQ.), the New Jersey Spill Compensation and Control
Act, as amended (N.J.S.A. 58:10-23.11B ET SEQ.), any rules or regulations
promulgated thereunder, or in any other applicable federal, state or local
law, rule or regulation dealing with environmental protection. It is
understood and agreed that the provisions contained in this Paragraph shall
be applicable notwithstanding the fact that any substance shall not be deemed
to be a Hazardous Substances at the time of its use by the Tenant but shall
thereafter be deemed to be a Hazardous Substance. Tenant agrees to indemnify
and hold harmless the Landlord and each mortgagee of the Demised Premises
from and against any and all liabilities, damages, claims, losses, judgments,
causes of action, costs and expenses (including reasonable attorneys' fees)
which may be incurred by Landlord or
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any such mortgagee or threatened against the Landlord or such mortgagee,
relating to or arising out of any breach by Tenant of the terms of this
Paragraph, said indemnity to survive the expiration or earlier termination of
this Lease.
(b) Within thirty (30) days of request therefor by Landlord, Tenant
shall provide Landlord with: (i) its Standard Industrial Classification
Number (said Standard Industrial Classification number to be obtained by
reference to the then current Standard Industrial Classification Manual
prepared and published by the Executive Office of the President, Office of
Management and Budget or the successor or such publications); and (ii) an
opinion letter from the DEP (or such other agency or body as shall then have
jurisdiction over ECRA matters) in a form satisfactory to Landlord's counsel,
stating the ECRA does not then apply to Tenant, Tenant's use and occupancy of
the Demised Premises and the closing, terminating or transferring of
operations at the Demised Premises, a Negative Declaration (as said term is
defined in ECRA) duly approved by DEP or such other agency or body as shall
then have jurisdiction over ECRA matters, or a Cleanup Plan (as said term is
defined in ECRA) duly approved by DEP or such other agency or body as shall
then have jurisdiction over ECRA matters.
27. REAL ESTATE TAXES. Commencing no earlier than the second year of the
term hereof, upon receipt of written notification, Tenant shall pay, as
additional rent, its proportionate share of the increased real estate taxes
assessed or imposed on the property over the base year (base year shall be
defined as the calendar year 1995). Such additional rent shall be paid
monthly or quarterly, as designated by Landlord. Landlord shall be entitled
to the same remedies for non-payment of additional real estate taxes as for
non-payment of rent. Tenant's liability for such increase in real estate
taxes shall be imposed whether the increase is due to an increase in the tax
rate or valuation or both. Tenant's proportionate share shall be determined
by dividing the area of the Demised Premises by the total amount of leasable
floor area in the building.
28. MAINTENANCE. Commencing no earlier than the second year of the term
hereof, upon receipt of written notification, Tenant shall pay, as additional
rent, its proportionate share of the increase in operating expenses incurred
by Landlord over the base year (base year shall be defined as the calendar
year 1995). Such additional rent is to be paid quarterly, and shall be
determined by dividing the area of the Demised Premises by the total amount
of area in the building. For purposes of this Lease, expenses for maintaining
and operating the building shall mean and include those expenses incurred in
respect to the operation and maintenance of the building (excluding real
estate taxes) in accordance with accepted principles of sound management and
accounting practices as applied to the operation and maintenance of
non-institutional, first class office buildings, including, but not limited
to, expenses for heat, water, snow removal, landscaping, insurance and
janitorial services.
29. CONDEMNATION AND EMINENT DOMAIN. (a) In the event of a taking for any
public or quasi-public use or purpose, by any lawful power or authority, by
exercise of the right of condemnation or eminent domain, or by agreement
between Landlord and those having the authority to exercise such right
(hereinafter called a "Taking") of the entire Demised Premises or such
substantial portion thereof so that the balance of the Demised Premises is
not suitable for the conduct of Tenant's normal business operations therein,
then this Lease and the terms hereof shall cease and expire on the date of
transfer of possession in connection with the Taking.
(b) In the event of a Taking of any portion of the Demised Premises as
a result of which this Lease is not terminated as provided above, or a Taking
of more than forty (40%) percent of the
9
leasable space at the Building (whether or not any portion of Demised
Premises is included in the Taking), or a permanent denial or substantial
impairment of adequate access to the Building and Demised Premises, then, in
such event, Landlord or Tenant may, at its option, terminate this Lease by
giving notice of termination to the other within sixty (60) days after
receipt by Tenant of notice that the Taking will occur, such notice of
termination to be effective as of the date of transfer of possession in
connection with the Taking.
(c) In the event this Lease is not terminated pursuant to the terms of
this Paragraph, then Landlord shall promptly commence and with due diligence
continue to restore the portion of the Building and the Demised Premises
remaining after the Taking to substantially the same condition and
tenantability as existed immediately preceding the Taking, to the extent such
restoration may be accomplished with the available net proceeds of the award
or payment to Landlord in connection with the Taking. During the period of
restoration by Landlord, if the Taking or such restoration shall cause a
material adverse impact on Tenant's business at Demised Premises, basic
annual rent and additional rent shall be abated and adjusted in an equitable
fashion. Upon completion of the restoration, basic annual rent and additional
rent shall also be abated and adjusted in such manner as shall be just and
equitable. In the event that Landlord shall fail to commence such restoration
as hereinabove required, or if such restoration shall not be completed within
twelve (12) months from and after the date of transfer of possession in
connection with Taking, then, in either such event, Tenant shall have the
right, as its exclusive remedy, to terminate this Lease by notice to
Landlord, such notice to specify the effective date of termination.
(d) Whether or not this Lease shall be terminated pursuant to the terms
of this Paragraph, Tenant shall have the right in connection with any Taking
to assert all claims available to it for loss of leasehold improvements,
trade fixtures and equipment, and such other items of loss or damage as
Tenant shall suffer as a result of the Taking with respect to which Tenant
shall, from time to time under applicable law, be permitted to make an
independent claim, provided that such claim by Tenant will not reduce the
award or payment to Landlord in connection with the Taking.
(e) Notwithstanding any provision of this Paragraph, in no event shall
Landlord be obligated to expend, in connection with the repair or restoration
of the Demised Premises pursuant to this Paragraph, any amount in excess of
the award or payment in connection with the Taking. In the event that such
award or payment shall be insufficient for the repair or restoration or in
the event that Landlord's mortgagee shall apply all or any portion of such
award of payment to the reduction of the indebtedness secured by such
mortgage, then to the extent of such unavailable award or payment, Landlord
shall be excused from the performance of repair or restoration work hereunder.
30. HOLDING OVER BY TENANT. If Tenant shall remain in possession of the
Demised Premises after the conclusion of the term of this Lease (and any
renewal terms), Tenant shall become a month-to-month tenant under the
provisions herein provided, but at a monthly basic rental equal to two (2)
times the basic annual rental as set forth in Paragraph 2 herein. However,
the amount due for additional rental shall remain as set forth in this Lease.
Such month-to-month tenancy shall then continue until terminated by either
Landlord or Tenant, upon sixty (60) days prior written notice to the other
party, but, in any event, such termination shall not occur on a date other
than the last day of a calendar month.
31. RIGHT TO EXHIBIT. The Tenant agrees to permit the Landlord and the
Landlord's agents, employees or other representatives to show the premises to
persons wishing to rent or purchase the same
10
on and after six (6) months next preceding the expiration of the term hereof.
32. BROKER'S COMMISSION. The parties hereto hereby agree that there was no
broker in this matter. Landlord and Tenant hereby indemnify and hold each
other harmless for any and all claims by any brokers in connection with this
transaction.
33. OPTIONAL RENEWAL PERIOD. Tenant shall have the right to renew the
within Lease for one (1) term of three (3) years, consecutive with the term
herein provided, at the then prevailing "fair market rent". Tenant shall give
the Landlord no less than six (6) months prior written notice by Certified
Mail, Return Receipt Requested, of Tenant's intention to exercise the option
to renew.
34. OPTIONAL RENEWAL PERIOD - RENT. The "fair market rent" as contemplated
by Paragraph 33 hereof shall be determined as follows: Landlord shall notify
Tenant of Landlord's opinion of the fair market rent for the Renewal Period
at lease six (6) months prior to the end of the then current term hereof. If
Tenant disputes Landlord's opinion, Tenant shall, within thirty (30) days
after Landlord's said notice, by written notice to Landlord, either withdraw
its exercise of its renewal option or notify Landlord that Tenant elects
arbitration in accordance with then prevailing Rules of Commercial
Arbitration of the American Arbitration Association. The said Association
shall designated an appraiser familiar with office buildings located in the
Middlesex County, New Jersey area. The arbitrator shall, after hearing
testimony from the parties and their expert witnesses, have the authority to
fix and determine the fair market rent for the Renewal Period. Each party
shall pay the cost and expenses of its own expert witnesses and attorneys
fees, and the cost of the arbitration shall be shared equally by the parties.
35. TENANT'S ESTOPPEL. If, at any time after the commencement of the term
hereof, Landlord or Tenant shall make written request therefor, Landlord or
Tenant shall, within Tenant (10) days after such request, deliver to the
other a written instrument, duly executed by Landlord or Tenant, certifying,
if such be the case: (i) that this Lease is in force and effect; (ii) that
this Lease has not been modified, amended or supplemented or specifying the
modification, amendment or supplement; (iii) that Tenant or Landlord, as the
case may be, is not in default hereunder, or if it is then in default,
specifying the nature of the default and whether or not the time period for
curing same has expired; (iv) the date or dates through which basic annual
rent and additional rent have been paid; and (v) that there are no offsets or
deductions against basic annual rent or additional rent, or if any are
claimed, specifying the amount thereof and the basis therefor.
36. GOVERNING LAW. This Lease, and the rights and obligations of the
parties thereto, shall be interpreted and construed in accordance with the
laws of the State of New Jersey.
37. PARTIAL INVALIDITY. If any provision of this Lease shall be determined
by a court of competent jurisdiction to be invalid, such determination shall
not affect any of the other provisions of this Lease and such other
provisions shall remain in full force and effect. If any provision of this
Lease shall be capable of two constructions, one of which would render the
provision valid and the other of which would render it invalid, then such
provision shall have the construction and meaning which would render it valid.
38. NOTICES. All notices required under the terms of this Lease shall be
given and shall be complete by mailing such notices by certified or
registered mail, return receipt requested, to the address of the parties as
shown at the head of this Lease, or to such other address as may be
designated in writing, which notice of change of address shall be given in
the same manner.
11
39. TITLE AND QUIET ENJOYMENT. The Landlord covenants and represents that
the Landlord is the owner of the premises herein leased and has the right and
authority to enter into, execute and deliver this Lease; and does further
covenant that the Tenant on paying the rent and performing the conditions and
covenants herein contained, shall and may peaceably and quietly have, hold
and enjoy the leased premises for the term aforementioned.
40. ENTIRE CONTRACT. This Lease contains the entire contract between the
parties. No representative, agent or employee of the Landlord has been
authorized to make any representations or promises with reference to the
within letting or to vary, alter or modify the terms hereof. No additions,
changes or modifications, renewals or extensions hereof, shall be binding
unless reduced to writing and signed by the Landlord and the Tenant.
41. RIGHT OF FIRST REFUSAL. Tenant shall have the right of first refusal to
lease any available space contiguous to the Demised Premises as shown on
Exhibit A attached hereto. Tenant shall respond to Landlord's written notice
within five (5) business days. In the event that Tenant fails to respond
within said time period, Tenant's right of first refusal shall have been
waived.
The Landlord may pursue the relief or remedy sought in any invalid
clause, by conforming the said clause with the provisions of the statutes or
the regulations of any governmental agency in such case made and provided as
if the particular provisions of the applicable statutes or regulations were
set forth herein at length.
In all references herein to any parties, persons, entities or
corporations the use of any particular gender or the plural or singular
number is intended to include the appropriate gender or number as the text of
the within instrument may require. All the terms, covenants and conditions
herein contained shall be for and shall inure to the benefit of and shall
bind the respective parties hereto, and their heirs, executors,
administrators, personal or legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written:
WITNESS OR ATTEST: METRO PARK ASSOCIATES - LANDLORD
BY: /s/ (Signature)
- ------------------------- -------------------------
STARCOM - TENANT
BY: /s/ (Signature)
- ------------------------- --------------------------
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the Building
shall not be obstructed or encumbered by Tenant or used by Tenant for any
purpose other than the purpose for which they were intended
2. PROJECTIONS FROM BUILDING. No equipment or other fixtures shall be
attached to the outside walls or the windowsills of the Building or otherwise
affixed so as to project from the Building without the prior written consent
of the Landlord.
3. SIGNS. Except as otherwise provided in this Lease, no sign or lettering
shall be affixed by Tenant 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 the Landlord.
4. WINDOWS. Windows in the premises shall not be covered or obstructed by
Tenant. 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.
5. FLOOR COVERING. Tenant 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 first shall be fixed to the floor
by a paste or other material that may be easily removed with water, with the
use of cement or other similar material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING. Tenant shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall to
interfere with the other tenants or those having business with them.
7. LOCKS AND KEYS. No additional locks or bolts of any kind shall be
placed on any of the doors by Tenant. Tenant shall, upon termination of
Tenant's tenancy, deliver to Landlord all keys to any space within the
Building, either furnished to or procured by Tenant, and in the event of the
loss of any keys furnished, Tenant shall pay to Landlord the cost of
replacement thereof.
8. 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 Landlord may, from time to time, reasonably determine
and only after advance notice to Landlord. The persons employed by Tenant for
such work must be reasonably acceptable to Landlord. Tenant may, subject to
such 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 that Tenant shall pay for any additional costs incurred
by Landlord for elevator operators or security guards, and for other expenses
occasioned by such activity of Tenant. If, at least five (5) days prior to
such activity, Landlord requests that Tenant deposit with Landlord, as
security for Tenant's obligation to pay such additional costs, a sum which
Landlord reasonably estimates to be the amount of such additional cost, the
Tenant shall deposit such amount with Landlord as security for such cost.
9. SAFES AND OTHER HEAVY EQUIPMENT. Landlord 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. Business machines and other equipment shall be placed
and maintained by Tenant at Tenant's expense in settings sufficient in
Landlord's reasonable
judgment to absorb and prevent unreasonable vibration, noise and annoyance.
10. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS. Landlord shall
not be responsible to Tenant for the non-observance or violation of any of
these rules and regulations by any other tenant.
11. AFTER HOURS USE. Landlord 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 Tenant. Each Tenant shall be responsible
for all persons for whom such a pass is issued and shall be liable to the
Landlord for the acts of such person.
12. PLUMBING FACILITIES USE. Tenant shall not use the Building's plumbing
facilities for any purpose other than that for which they were constructed
and will not permit any foreign substance of any kind to be thrown therein
and the expense of repairing any breakage, seepage or damage, no matter where
occurring, resulting from a violation of this provision by Tenant or its
agents, servants, employees, invitees or licensees shall be borne by Tenant.
Wasteful and excessive or unusual use or misuse of Building standard office
electrical service, water, sewer or other utilities is hereby expressly
prohibited.
13. VEHICLES. No bicycles, mopeds, motorcycles or other vehicles of any
kind shall be brought into or kept in, on or about the premises, Building or
Building area, except in those locations specifically designated by Landlord
for same.
14. ANIMALS. No animal of any kind shall be brought into, kept in, on or
about the premises, Building or Building area, other than seeing eye dogs.
15. LANDLORD'S RIGHTS. Landlord hereby reserves to itself any and all
rights not granted to Tenant hereunder, including, but not limited to the
following rights which are reserved to Landlord for its purposes in operating
the Building:
(a) the exclusive right to the use of the name of the Building for all
purposes, except that Tenant may use the name as its business address and for
no other purpose;
(b) the right to change the name of the Building at any time and from
time to time, without incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the exterior
of the Building and/or anywhere in the Building area; and
(d) the right to grant anyone the right to conduct any particular
business or undertaking in the Building or Building area.
16. MOVING. Moving in and out of the Building must be coordinated with the
Landlord. At the discretion of the Landlord, moving may be required to be
done under the supervision of the management personnel. No furniture will be
moved in the Building's elevators without the permission of the Landlord and
until necessary pads have been installed.
ADDENDUM TO LEASE BETWEEN
METROPARK ASSOCIATES, LANDLORD
AND STARCOM, TENANT
1. This Addendum is hereby made a part of the attached Lease. Where the
terms ofthis Addendum differ from the terms of the Lease, this Addendum
shall control.
2. The Lease is hereby amended to provide that the Demised Premises shall
consist of a total of 6,668 square feet, rather than 3,962 square feet.
3. The Lease is hereby amended to provide that, commencing on May 31, 1995,
the rent for the Demised Premises shall be One Hundred Three Thousand
Three Hundred Fifty Four Dollars per annum ($103,354). Eight Thousand Six
Hundred Twelve ($8,612) Dollars Per Month, due and payable on the first
day of each calendar month.
4. The Lease is hereby amended to provide that Tenant shall pay, as
additional rent, the cost of Tenant's electrical usage, based upon an
energy audit to be performed by a licensed energy audit company chosen
by the Landlord. Landlord estimates that Tenant's costs shall be $194.91
per month (based on previous usage for smaller space). However, this
amount is subject to increase pursuant to the results of the energy
audit, which audit shall be performed within sixty (60) days from date
of execution of this Agreement.
5. The Lease is hereby amended to provide that Tenant's proportionate share
for purposes of operating expense and tax reimbursement shall be 4.95%.
6. The Lease is hereby amended to provide that Tenant shall be provided with
a total of five (5) reserved parking spaces, marked "Starcom".
7. ALL OTHER TERMS AND CONDITIONS OF THE LEASE DATED APRIL 19, 1995 SHALL
REMAIN THE SAME.
IN WITNESS WHEREOF, the parties hereto set their hands and seals.
METRO PARK ASSOCIATES - LANDLORD
Dated: [ILLEGIBLE] BY: /S/ [ILLEGIBLE
--------------------------- ---------------------------------
STARCOM - TENANT
BY: /S/ [ILLEGIBLE
---------------------------------
[Floor Plan]
ADDENDUM TO LEASE BETWEEN
METRO PARK ASSOCIATES, LANDLORD
AND UTSTARCOMM, INC, TENANT
1. This Addendum is hereby made a part of the attached Lease. Where the
terms of this Addendum differ from the terms of the Lease, this Addendum
shall control.
2. Paragraph 1 of the Lease is hereby amended to provide that the Demised
Premises shall consist of a total of 10,067 rentable square feet, rather
than 6,668 square feet.
3. Paragraph 2 of the Lease is hereby amended to provide that, commencing
July 1, 1996, the rent for the Demised Premises shall be Thirteen
Thousand One Hundred Forty-Four and 00/100 ($13,144.00) Dollars Per
Month, due and payable on the first day of each calendar month.
4. Paragraphs 27 and 28 of the Lease are hereby amended to provide that,
effective July 1, 1996, Tenant's proportionate share shall be 7.53%.
5. All other terms and conditions of the lease dated shall remain the same.
IN WITNESS WHEREOF, the parties hereto set their hands and seals.
METRO PARK ASSOCIATES - LANDLORD
Dated: 6/17/96 BY: /s/ (Signature)
-------------------------- -------------------------------
UTSTARCOMM, INC. - TENANT
Dated: 6/11/96 BY: /s/ (Signature)
-------------------------- -------------------------------
ADDENDUM TO LEASE
BETWEEN METRO PARK ASSOCIATES, LANDLORD
AND UTSTARCOMM, INC, TENANT
1. This Addendum is hereby made a part of the attached Lease. Where the
terms of this Addendum differ from the terms of the Lease, this Addendum
shall control.
2. Paragraph 1 of the Lease is hereby amended to provide that, effective
on the later of: (a) completion of Landlord's Work as described in
Exhibit A attached hereto; or (b) August 1, 1997, (hereinafter the "New
Commencement Date"), the Demised Premises shall consist of 12,080
rentable square feet of eighth floor space (the "New Demised Premises").
The Paragraph is further amended to provide that the initial term of the
Lease shall expire on July 31, 1998.
3. Paragraph 2 of the Lease is hereby amended to provide that, commencing
on the New Commencement Date, the basic rent shall be the sum of Two
Hundred One Thousand Three Hundred Seventy-Three and 60/100 ($201,373.60)
Dollars Per Annum; Sixteen Thousand Seven Hundred Eighty-One and 13/100
($16,781.13) Dollars Per Month, due and payable in advance on the first
day of each calendar month.
4. Paragraphs 27 and 28 of the Lease are hereby amended to provide that
Tenant's proportionate share shall be 9.06%.
5. The Lease is hereby amended to provide that Tenant shall be responsible
for the costs of installation of data and telephone wiring for Select
Software Tools, Inc., another tenant in the Building. In addition,
Tenant shall share equally with Landlord with costs of moving the
operations of Select Software Tools, Inc. from their current location
to their new location in the Building.
6. The Lease is hereby amended to provide that Tenant shall have the right
to renew this Lease, for two (2) terms of one (1) year each, consecutive
with the initial term, at the same terms and conditions as the original
Lease, as modified. Tenant shall provide Landlord with sixty (60) days
prior written notice of its intention to exercise its right to renew this
Lease.
IN WITNESS WHEREOF, the parties set their hands and seals this ______
day of July, 1997.
WITNESS OR ATTEST: METRO PARK ASSOCIATES - LANDLORD
BY: CHAUNCEY SHEY
- ------------------------------ ------------------------------
UTSTARCOMM, INC. - TENANT
BY: /s/ (Signature)
- ------------------------------ ------------------------------