EXHIBIT 10.09
LEASE AGREEMENT
BETWEEN
Peregrine Investment Partners
a Pennsylvania Limited Partnership
("Landlord")
AND
ITXC CORP.
("Tenant")
BASIC LEASE PROVISIONS
----------------------
This Lease consists of the Cover Sheet, Table of Contents, Basic Lease
Provisions, General Lease Provisions, Riders and Exhibits, all of which are
attached and incorporated by reference for all purposes. The terms defined in
the Basic Lease Provisions, General Lease Provisions, Riders and Exhibits shall
be deemed to have the meanings ascribed, wherever used herein. The Cover Sheet,
Table of Contents and headlines of paragraphs, Riders and Exhibits are for
convenience only and shall not be deemed to enlarge or diminish the meanings of
the provisions of this Lease.
LEASE DATE: February 28, 1998
LANDLORD: Peregrine Investment Partners - I, a Pennsylvania Limited
Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Representative: ▇▇▇▇▇ ▇▇▇▇▇▇
TENANT: Name: ITXC CORP.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Representative: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
LAND: The tract of land located in the Township of Plainsboro,
Middlesex County,
New Jersey and described in Exhibit "A".
BUILDING: The building commonly known as Arbor 600, 600 College Road East,
Princeton ▇▇▇▇▇▇▇▇▇ Center, New Jersey, situated on the Land.
PREMISES: The portion of the First (1st) floor of the Building shown on the
floor plan attached as Exhibit "A-2".
TERM: Five (5) years
LEASE COMMENCEMENT DATE: On or about June 15, 1998 (subject to adjustment
pursuant to Section 2 of the General Lease Provisions).
LEASE EXPIRATION DATE: May 31, 2003 (subject to adjustment pursuant to Section 2
of the General Lease Provisions).
BASIC RENT: $314,056.80 per year payable in consecutive, equal monthly
installments of $26,171.40 during the Term of the Lease.
-2-
ADDITIONAL RENT:
1. Increases in Real Estate Taxes: Tenant's Allocated Share of
------------------------------
the increase in real estate taxes (including special assessments,
rental receipts or gross real estate taxes, if any, and any other
taxes now or hereinafter imposed in the nature of or in
substitution for real estate taxes) levied on the Building and
the Land in excess of the annual real estate taxes for the later
of (i) calendar year 1998 or (ii) the calendar year of the Lease
Commencement Date (the "Base Year"). Real estate taxes shall not
include interest or penalties assessed for the late payment of
such taxes.
2. Increases in Operating Costs: Tenant's Allocated Share of the
----------------------------
increase during the Term of the Lease in the Operating Costs (as
defined in the General Lease Provisions) over the annual
Operating Costs for the later of (i) calendar year 1998 or (ii)
the calendar year of the Lease Commencement Date (the "Base
Year").
ELECTRICAL SERVICE COST AMOUNT: $1.00 per rentable square foot, until adjusted
by survey as provided in Section 6 of the General Lease
Provisions.
SECURITY DEPOSIT: See Section 3(e).
LATE CHARGE: Two percent (2%) of the Installment of Rent due and unpaid.
OVERDUE INTEREST RATE: Two percent (2%) per annum in excess of the "prime rate"
then in effect at Citibank, N.A. in New York City (but not to
exceed the maximum rate of interest to be charged Tenant for the
use, forbearance or detention of money).
REIMBURSEMENT INTEREST RATE: Two percent (2%) per annum in excess of the "prime
rate" then in effect at Citibank, N.A. in New York City (but not
to exceed the maximum rate of interest to be charged Tenant for
the use, forbearance or detention of money).
TENANT'S ALLOCATED SHARE: 5.98% which Landlord and Tenant agree is the
approximate proportion which the rentable area of the Premises
bears to the total rentable area of the Building. Tenant's
Allocated Share is subject to change in the event of a change in
the Rentable Area of the Premises.
RENTABLE AREA: Premises - 14,814 square feet.
Building - 247,656 square feet
-3-
The calculation of the Rentable Area of the Premises shall be the
product of multiplying (i) the usable area and (ii) the sum of an
add-on factor of 16.6% plus 100%. The usable area of the Premises
shall be measured from the interior surface of the exterior glass
line to the centerline of the wall separating adjacent tenants
and the inside surface of the wall separating the Tenant area
from common areas with no reduction for columns or other
penetrations within the Premises.
PERMITTED USE: General office use and use for internet telephony switching and
related ancillary uses, provided that the use of the Premises
shall remain primarily office space.
STANDARD INDUSTRIAL CLASSIFICATION: Tenant's Standard Industrial Classification,
as designated by the Standard Industrial Classification Manual
prepared by the Office of Management and Budget (the "SIC
Number") is 4813.
BROKER: Insignia/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company, Inc.
Park ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇ ) ▇▇ ▇-▇▇▇▇
-4-
GENERAL LEASE PROVISIONS
THIS LEASE AGREEMENT (the "Lease") is made on the Lease Date between
Landlord and Tenant.
WHEREAS, Tenant desires to lease space in the Building from Landlord and
Landlord is willing to lease space in the Building to Tenant upon the terms,
conditions, covenants and agreements set forth in this Lease. Intending to be
legally bound hereby, Landlord and Tenant agree:
1. Premises. Landlord hereby leases to Tenant, and Tenant hereby
--------
leases from Landlord the Premises, for the Term and upon the terms, agreements,
covenants and conditions set forth in this Lease. The Premises are shown as
outlined in the attached Exhibit A-2. The Lease also includes the right,
together with other tenants of the Building and members of the public, to use
the common areas of the Building (hereinafter referred to as the "Common
Facilities") subject to such restrictions as may be incorporated in this Lease.
The Lease does not include any other rights not specifically set forth herein.
2. Term. The Term of the Lease is for the period set forth in the
----
Basic Lease Provisions, beginning on the Lease Commencement Date and ending at
midnight on the Lease Expiration Date. If under the provisions of this Lease the
Term begins on a date other than the Lease Commencement Date set forth in the
Basic Lease Provisions, then Landlord shall advise Tenant in writing of the
date, and that date shall be the Lease Commencement Date. If Tenant shall be
delayed by the completion of the Demolition Work (as defined in Exhibit "B")
beyond April 15, 1998, then the Lease Commencement Date shall be extended on a
day-for-day basis with the period of such delay. The Lease Expiration Date
shall also be adjusted to provide a term of occupancy equal to the Term set
forth in the Basic Lease Provisions.
3. Rent. Security Deposit. Tenant shall pay as rent for the Premises
----------------------
the following amounts (each of which shall be considered rent and all of which
are collectively referred to in this Lease as "Rent"):
(a) Basic Rent. The Basic Rent payable in advance on the first day of
----------
each month in monthly installments without prior notice or demand and without
any set-off or deduction whatsoever at Landlord's principal office in the City
of Philadelphia or at such other place as Landlord may direct. The Basic Rent
for the first full month and the final month of the Term will be paid on the
date of this Lease. The Basic Rent for the unexpired portion of any month in
which the Term begins will be paid on the Lease Commencement Date.
(b) Additional Rent. Tenant will pay as additional rent ("Additional
---------------
Rent") at the times herein stated (if no times are stated, then on the first day
of the month after Landlord notifies Tenant of the amount of such additional
rent, except that any additional rent resulting from the adjustments provided
below determined after the Expiration Date of the Lease shall be paid within
thirty days after Landlord notifies Tenant of the additional amount due):
-5-
(i) Increases in Real Estate Taxes. Tenant's Allocated Share of
------------------------------
Increases in Real Estate Taxes (as defined in the Basic Lease Provisions). At
any time or times after the Base Year, Landlord may submit to Tenant a statement
of Landlord's reasonable estimate of any such tax increase over the Real Estate
Taxes during the Base Year and within thirty (30) days after delivery of such
statement and each month thereafter, Tenant shall pay to Landlord, as additional
monthly rent, an amount equal to one-twelfth (1/12) of the amount determined to
be Tenant's Allocated Share of such increase. Within ninety (90) days after the
expiration of each calendar year in which Tenant's monthly rent is increased
pursuant to this paragraph, Landlord may submit, or upon the request of Tenant,
Landlord shall submit, a statement showing the determination of the actual
amount of the total increase and Tenant's Allocated Share of such increase,
together with a copy of the Real Estate Tax ▇▇▇▇. If such statement shows that
Tenant's monthly payments pursuant to this paragraph exceeded Tenant's Allocated
Share of the actual increase incurred for the preceding calendar year, then
Tenant may deduct such overpayment from its next payment or payments of monthly
rent. If such statement shows that Tenant's share of Landlord's actual increase
exceeded Tenant's monthly payments for the preceding calendar year, then Tenant
shall pay the total amount of such deficiency to Landlord within thirty (30)
days after the delivery of such statement. In the event that the Lease
Expiration Date is not December 31st, the increase to be paid by Tenant for the
calendar year in which the Lease Expiration Date occurs shall be determined by
multiplying the amount of Tenant's share thereof for the full calendar year by a
fraction with the number of days during such calendar year prior to the Lease
Expiration Date as the numerator and with 365 as the denominator. Landlord
represents that there is no abatement, credit or deferral of Real Estate Taxes
for the Base Year.
(ii) Increases in Operating Costs. Tenant's Allocated Share of
----------------------------
Increases in Operating Costs. The Operating Costs are hereby defined as the sum
of the following costs and expenses: (A) gas, electricity, water and sewer
charges and other utility charges (including surcharges) of whatever nature
(except to the extent separately charged to tenants under Section 6 of the
Lease); (b) insurance (including but not restricted to liability, fire,
casualty, boiler, plate glass, false arrest and defamation, workmen's
compensation, fidelity bonds, extended coverage, and any other form of insurance
which is reasonably required in the operation of a commercial property) (C)
building personnel costs, including but not limited to salaries, wages, fringe
benefits, and other direct and indirect costs of engineers, superintendents,
watchmen, porters, management and security personnel and any other building
personnel; (D) costs of service and maintenance contracts, including, but not
limited to, chillers, heat pumps, cooling towers, energy management systems,
boilers, sprinklers, controls, elevators, mail chutes and boxes, windows,
landscaping, common area maintenance, paving, security, janitorial and general
cleaning, snow and ice removal, exterminating and trash removal, and management
fees; (E) all other maintenance and repair expenses and costs of supplies which
are deducted by Landlord in computing its Federal income tax liability; (F) any
other costs and expenses (i.e., items which are not capital improvements)
incurred by Landlord in operating the Building or Common Facilities, if any, (G)
the amortized cost of purchasing and installing any energy saving device in the
Building; and (H) the cost of any additional services not provided to the
Building or
-6-
Common Facilities at the Lease Commencement Date but thereafter provided by
Landlord in the prudent management of the Building and Common Facilities. In the
event that any business, rent or other taxes which are now or hereafter levied
upon Tenant's use or occupancy of the Premises or Tenant's business at the
Premises or on Landlord by virtue of Tenant's occupancy of the Premises are
enacted, changed or altered so that any of such taxes are levied against
Landlord or the mode of collection of such taxes is changed so that Landlord is
responsible for collection or payment of such taxes, any and all such taxes
shall be deemed to be a part of the Operating Costs and Tenant shall pay the
taxes that would otherwise be imposed on it to Landlord. Operating Costs shall
not include (A) principal or interest payments on any mortgages, deeds of trust
or other financing encumbrances, (B) leasing commissions payable by Landlord,
(C) deductions for depreciation of the Building or (D) capital improvements
which are not deducted by Landlord in computing its Federal income tax liability
(except as otherwise expressly provided herein). For purposes hereof, "Operating
Expenses" shall also not include the following: (a) expenses incurred in
connection with the leasing of space in the Building, including, without
limitation, leasing commissions, rent concessions, tenant improvements, tenant
buyouts and advertising expenses and legal fees and disbursements in connection
with leases, lease terminations, modifications, renewals and extensions; (b)
executive salaries and benefits above the grade of building manager; (c) repairs
or other work (including rebuilding) occasioned by insured fire, windstorm or
other casualty or by condemnation; (d) depreciation; (e) interest on, and
amortization of, any debts; (f) rent payable under any ground lease to which
this Lease is subject; (g) expenses incurred in negotiating and enforcing leases
against tenants, including attorneys' fees; (h) costs of financing, re-financing
or re-structuring any debt obligations with respect to the Building and related
legal fees and disbursements; (i) fines, penalties and late payments incurred by
Landlord due to Landlord's violations of law, permits, leases or contracts
pertaining to the Building; (j) expenses in connection with services of a type
which are not available to Tenant but which are provided to another tenant or
occupant of the Building; (k) expenses which arise out of additions to the
Building; (1) insurance increases due to any extra-hazardous uses made in the
Building by Landlord or any other tenants; (m) expenses for repairs or other
work covered by insurance proceeds; (n) expenses incurred in connection with the
sale of the Building and/or the Land or any interest therein; (o) cost of any
work or service performed in any instance for or supplied to a specific tenant
(including Tenant) at the cost of such tenant; (p) compensation paid to clerks,
attendants or similar persons in commercial concessions operated by Landlord;
(q) the cost of installing, operating and maintaining any specialty service,
such as an observatory, broadcasting facilities, luncheon club, health, athletic
or recreational club; (r) any fee or expenditure in excess of the amount which
would be paid in an arm's length transaction paid to any corporation or entity
which controls, is controlled by or under control with Landlord or any partner
or shareholder of Landlord or any person which is a relative by blood or
marriage of any shareholder, partner or officer or director of Landlord; and (s)
cost of correcting defects in the original design and construction of the
Building. At any time or times after the Base Year Landlord may submit to Tenant
an estimate of the increase of the Operating Costs and within thirty (30) days
after the delivery of such statement, and each month thereafter, Tenant will pay
to Landlord, as additional monthly rent, an amount equal to one-twelfth (1/12)
of the amount determined to be Tenant's Allocated Share of such increase. Within
ninety (90) days after the expiration of each calendar year in which Tenant's
monthly rent is increased pursuant to this paragraph, Landlord may submit, or
upon the request of Tenant, Landlord shall submit, a
-7-
statement showing the determination of the total increase and Tenant's
proportionate share of such increase. Notwithstanding anything to the contrary
set forth in this section 3(b)(ii), if Landlord shall fail to render the
required statement for any calendar year by June 1 of the succeeding calendar
year, Tenant may cease to pay installments of Operating Expenses until such time
as such statement is rendered. At the time that Landlord's Statement is
rendered, Tenant shall, within thirty (30) days following receipt thereof, pay
to Landlord the installments of Operating Expenses withheld by Tenant. If Tenant
shall deliver notice to Landlord that it desires to examine the records
concerning Operating Expenses before the end of the second anniversary of the
date Tenant receives Landlord's Statement, Landlord shall provide access to, and
Tenant shall have the right to examine such records for a period of ninety (90)
days after Landlord makes such records available to Tenant or its agents. If
affer an examination of the records, either Landlord and Tenant agree or an
arbiter determines that there occurred an overpayment of Operating Expenses by
Tenant equal to or greater than five percent (5%), then Landlord shall pay to
Tenant interest on such overpayment at the Overdue Rate then in effect from the
date of such payment until the date the Tenant receives such refund. If it is
determined that a miscalculation or mathematical error exists with respect to
any particular categories of Operating Expenses for the year in question, and
provided that Landlord verifies such miscalculation or error and shall
reasonably and in good faith determine that such miscalculation or error existed
in previous operating years, then such categories of Operating Expenses for each
of the lease years for which such calculation or mathematical error exists shall
be adjusted accordingly. If such statement shows that Tenant's share of
Landlord's actual increase exceeded Tenant's monthly payments for the preceding
calendar year, then Tenant shall pay the total amount of such deficiency to
Landlord. Such deficiency shall constitute additional rent hereunder due and
payable with the first monthly installment of Rent due after rendition of said
statement, or if payments have been accelerated pursuant to Section 15 below,
within ten (10) days after rendition of such statement. In the event that the
Lease Expiration Date is not December 31st, the increase to be paid by Tenant
for the calendar year in which the Lease Expiration Date occurs shall be
determined by multiplying the amount of Tenant's share thereof for the full
calendar year by a fraction with the number of days during such calendar year
prior to the Lease Expiration Date as the numerator and 365 as the denominator.
(c) Demand; Time. Each of the foregoing amounts of Rent shall be paid
------------
to Landlord without demand and without deduction, set-off or counterclaim on the
first (1st) day of every month during the Term of this Lease. If Landlord shall
at any time or times accept Rent after it shall become due and payable, such
acceptance shall not excuse a delay upon subsequent occasions, or constitute, or
be construed as, a waiver of any or all of Landlord's rights hereunder.
(d) Base Expense Adjustments. In the determination of the Base Real
------------------------
Estate Taxes and the Base Operating Expenses Landlord shall make appropriate
adjustments to the actual costs in order to reflect what the base expenses would
have been if the Building were 95% occupied if in the base year average
occupancy was less than 95%.
(e) Security Deposit. Tenant shall deposit with Landlord on or before
----------------
March 30, 1998, a security deposit (the "Security Deposit") in the amount of the
estimated cost of Tenant fit-out, which shall not be in an amount less than
$100,000.00. If the final cost of Tenant's
-8-
fit-out shall exceed the amount of the Security Deposit initially paid by
Tenant, then Tenant shall pay such excess to Landlord within five (5) days
following demand. Landlord, in the event that the Building is sold, shall
transfer and deliver the Security Deposit to the purchaser of the Building and
shall notify Tenant thereof, and thereupon Landlord shall be discharged from any
further liability with reference thereto. Notwithstanding the foregoing, in the
event Tenant shall have closed on and received at least $10,000,000.00 of the
proceeds of its anticipated $24,000,000.00 private placement by March 30, 1998,
Tenant shall not be required to post the Security Deposit as provided herein. If
Tenant shall be required to post the Security Deposit, then the same shall be
returned to Tenant upon the earlier of (i) the receipt of the private placement
proceeds, as aforesaid, or (ii) the completion of the Tenant Fit-Out and the
payment of all contractors (within lien releases). In lieu of a cash deposit,
Tenant may post with Landlord a letter of credit in the amount of the Security
Deposit issued by a bank reasonably satisfactory to Landlord.
4. Use of Premises. Tenant will use and occupy the Premises solely
---------------
for the Permitted Use and then only in accordance with the uses permitted under
applicable zoning and other governmental regulations; without the prior written
consent of Landlord the Premises will be used for no other purpose. Tenant will
not use or occupy the Premises for any unlawful purpose and will comply with all
present and future laws, ordinances, regulations, and orders of the United
States of America and any other public or quasi-public authority having
jurisdiction over the Premises or the Common Facilities.
5. Common Facilities.
-----------------
(a) The Common Facilities shall at all times be subject to the
exclusive control and management of Landlord. Landlord shall have the right to
establish, modify and enforce reasonable rules and regulations with respect to
the Common Facilities; to change the areas, locations and arrangements of Common
Facilities; to enter into, modify and terminate easement and other agreements
pertaining to the use and maintenance of the Common Facilities; to construct
surface or elevated parking areas and facilities; to establish and change the
level of parking surfaces; to establish, modify and enforce rules, regulations
for parking facilities provided by Landlord, if any; to close all or any portion
of such parking areas or other Common Facilities to such extent as may, in the
opinion of Landlord, be necessary to prevent a dedication thereof or the accrual
of any rights to any person or to the public therein; to close temporarily any
or all portions of the said areas or facilities; and to do and perform such
other acts in and to said areas and improvements as Landlord, in the exercise of
good business judgment, shall determine to be advisable, provided that none of
the foregoing shall adversely affect Tenant or Tenant's agents' access to or use
of the Premises or reduce the usable area of the Premises. Landlord agrees that
it shall not enact any rule or regulation with respect to the Common Facilities,
including the parking facilities, that unduly interferes with Tenant's permitted
use of the Premises. Landlord agrees that it shall apply the rules and
regulations to the tenants of the Building in a uniform manner and shall not
discriminate against Tenant in applying such rules and regulations.
-9-
(b) Landlord reserves the right in its sole discretion to change,
rearrange, alter, modify, reduce or supplement any or all of the Common
Facilities so long as adequate facilities in common are made available to the
Tenant, provided that none of the foregoing shall adversely affect Tenant or
Tenant's agents' access to or use of the Premises or reduce the usable area of
the Premises.
6. Services and Utilities
----------------------
(a) Landlord will furnish air-conditioning during the seasons of the
year when air-conditioning is required and heat during the seasons of the year
when heat is required with a system designed to perform in accordance with those
specifications set forth in Exhibit "C" attached hereto and made a part hereof.
Landlord will supply reasonably adequate water, exterior window cleaning, char
and janitorial and such other service (done after 5:30 PM Monday through Friday,
only (except legal holidays)) and such other building services and maintenance
of the Building, Building systems and Common Facilities as are required in
Landlord's sole but reasonable judgment commensurate with the standards of a
first-class office facility. Landlord shall not be obligated to provide
janitorial service if Tenant refuses entry to the cleaning staff after 5:30 PM.
Landlord will also provide elevator service by means of automatically-operated
elevators. Landlord shall have the right to remove elevators from service if
required for moving freight, or for servicing, maintaining or constructing the
Building. If due to use of the Premises or rearrangement of partitioning after
the initial preparation of the Premises interference with normal operation of
the air-conditioning in the Premises results, necessitating changes in the air-
conditioning system servicing the Premises, such changes shall be made by
Landlord upon written notice to Tenant at Tenant's sole cost and expense. Tenant
agrees to lower and close window coverings when necessary because of the sun's
position whenever the air-conditioning system is in operation and Tenant agrees
at all times to cooperate fully with Landlord and to abide by all the Rules and
Regulations which Landlord may prescribe for the proper functioning and
protection of the air-conditioning system.
(b) Landlord shall furnish the electric energy that Tenant shall
require in the Premises consistent with the electrical specifications set forth
in Exhibit "D" attached hereto and made a part hereof. Tenant shall pay to
Landlord as Additional Rent the cost of all electric energy furnished to Tenant
at the Premises, other than for heating and air-conditioning purposes.
Additional Rent for such electric energy shall be calculated and payable as
follows:
Within a reasonable time after the Commencement Date, subsequent to
Tenant's having taken occupancy of the Premises and having installed and
commenced the use of Tenant's electrical equipment, Landlord shall cause at
Landlord's expense, a survey to be made by a reputable independent electrical
engineer of the estimated use of electric energy (other than for heat and air-
conditioning) to the Premises, and shall compute the cost thereof for the
quantity so determined at prevailing retail rates charged to Landlord. The
electric service charges shall equal the cost to Landlord, including rate
increases as provided for in this Section, of the estimated use of electrical
energy (other than for heat and air conditioning) so determined. Tenant shall
have the right to review the survey prepared by Landlord's engineer and to
dispute
-10-
its findings, based on the findings of Tenant's engineer. Tenant shall pay
Landlord the cost of such electric energy, as so calculated on a monthly basis,
as Additional Rent, together with its payment of Basic Rent. Prior to such
calculation such cost shall be calculated on the basis of the Electrical Service
Cost Amount.
Tenant's use of electric energy in the Premises shall not at any time
exceed the capacity of any of the electrical conductors and equipment serving
the Premises, as the same are specified in Exhibit "D". In order to insure that
such capacity is not exceeded and to avoid possible adverse effect upon the
electric service to the Building, Tenant shall not, without Landlord's prior
written consent in each instance, connect any additional fixtures, appliances or
equipment to the electric distribution system or make any alteration or addition
to the electric system of the Premises existing on (or planned by Tenant and
disclosed to Landlord as of the Commencement Date. If Tenant furnishes Landlord
a sufficiently detailed description of Tenant's proposed electrical equipment
and the capacity thereof prior to Commencement Date and in accordance with the
requirements of Exhibit "B", completion of Improvements, attached hereto (the
"Work Letter"), Landlord agrees to review Tenant's proposal and not to
unreasonably withhold prior approval to that proposal within a reasonable time
after its submission provided that such plans do not require the provision of
additional electrical capacity by the utility serving the Building. If Landlord
consents, all additional risers or other equipment required shall be provided by
Landlord at Tenant's sole cost and expense and paid for by Tenant upon
Landlord's demand. As a condition to granting such consent, Landlord, at
Tenant's sole expense, may cause a new survey to be made of the use of electric
energy (other than for heating and air-conditioning) in order to calculate the
potential additional electric energy to be made available to Tenant based upon
the estimated additional capacity of such additional risers or other equipment.
When the amount of such increase is so determined and the estimated cost thereof
is calculated, the amount of monthly Additional Rent payable pursuant to this
Section shall be adjusted to reflect the additional costs and shall be payable
as herein provided.
If there is an increase or decrease in the rate schedule (including
surcharges or demand adjustments) of the public utility for the supply of
electrical service to the Building or the imposition of any tax with respect to
such service or increase in any such tax following the Commencement Date, 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 Tenant's surveyed usage as if a meter
measuring such usage to the Premises exclusively was in place.
(c) All services and utilities provided by Landlord shall be provided
during normal hours of operation of the Building (except char and janitorial
services which are described above), which are 7:30 AM to 6:00 PM Monday through
Friday and 8:00 AM to 12:00 noon Saturday. There are no normal hours of
operation of the Building on Sundays or legal holidays and Landlord shall not be
obligated to maintain or operate the Building at such times unless special
arrangements are made by Tenant. Landlord will furnish all services and
utilities required by this Lease only during the normal hours of operation of
the Building, unless otherwise specified herein. One automatically operated
elevator shall be subject to call at all times. Tenant shall have access to the
Premises on a 24-hour per day and 7-day per week basis. If
-11-
Tenant requires airconditioning or heat beyond the normal hours of operation set
forth herein and provided arrangements are made with the Landlord's agent,
Landlord will furnish such air-conditioning or heat if the Tenant agrees to pay
for the same with the next monthly installment of rent in accordance with the
then-current schedule of costs and assessments therefor, which such schedules
shall be published from time to time by Landlord and furnished to Tenant, the
same being determined by Landlord's engineer to reflect Landlord's cost, not to
exceed $50.00 per hour. Landlord shall not be liable for failure to furnish, or
for delays, suspensions or reductions in furnishing, any of the utilities or
services required to be performed by Landlord caused by breakdown, maintenance,
repairs, strikes, scarcity of labor or materials, acts of God, Landlord's
conformance to governmental legislation, regulation, or judicial or
administrative orders, or from any other cause whatsoever.
(d) In the event an interruption of any of the services to be
provided by Landlord described in this Section 6 or elsewhere in this Lease
(other than interruption caused by reasons beyond Landlord's reasonable
control), which interruption substantially interferes with Tenant's conduct of
business at the Premises, continues for more than three (3) consecutive business
days, all items of rent and additional rent shall thereafter be abated during
the continuity of such substantial interference until such services are restored
to where no substantial interference continues.
7. Completion of Improvements. The Premises shall be improved in
--------------------------
accordance with the terms and conditions of the Work Letter attached hereto as
Exhibit "B".
8. Covenants of Tenant. Tenant will (at Tenant's sole cost
-------------------
and expense):
(a) pay to Landlord all amounts due as Basic Rent and Additional
Rent; and pay to Landlord: (i) the Late Charge on all overdue installments of
Basic Rent and on all overdue payments of Additional Rent or other sums payable
to Landlord under this Lease that are ten (10) days past due. Tenant
acknowledges and agrees that the purpose of the Late Charge is to compensate
Landlord for its costs in collecting the same and is a liquidated amount; and
(ii) in addition to the Late Charge, interest, at the Overdue Interest Rate on
all overdue installments of Basic Rent from five (5) days following the due date
thereof to and including the date of payment and on all payments of Additional
Rent or other sums payable to Landlord hereunder from five (5) days following
the date of demand therefor to and including the date of payment;
(b) keep the Premises in good order and repair, reasonable
wear and tear and damage by casualty excepted;
(c) surrender the Premises at the end of this Lease in the same
condition in which Tenant has agreed to keep it during the Term hereof;
(d) be responsible for the maintenance of all plumbing and other
fixtures in and serving only the Premises, whether installed by Landlord or by
Tenant;
-12-
(e) be responsible (except to the extent provided in Section 13,
below) for repairs and replacements to the Premises and the Building made
necessary by reason of damage thereto caused by Tenant or its agents, servants,
invitees or employees;
(f) comply with all laws and all enactments and regulations of any
governmental authority relating or applicable to Tenant's particular occupancy
of the Premises, and hold Landlord harmless from all consequences for failure to
do so;
(g) promptly notify Landlord of any damage to or defects in the
Premises, and of any injuries to persons or property which occur therein;
(h) pay for any alterations, improvements or additions made by Tenant
to the Premises and any light bulbs, tubes and other non-standard Building items
made by or for Tenant, and allow no lien to attach to the Building with respect
to any of the foregoing;
(i) comply with the rules and regulations set forth in Exhibit C
hereto and with all reasonable changes in and additions to them, notice of which
is given by Landlord to Tenant (such rules and regulations are and all such
changes and additions will be part of this Lease); and
(j) comply with all reasonable recommendations of Landlord's or
Tenant's insurance carriers relating to layout, use and maintenance of the
Premises.
9. Negative Covenants of Tenant. Tenant will not:
----------------------------
(a) damage the Premises or any other part of the Building, or use any
part of the Building not designated for use by Tenant except as such right is
given by special written arrangement apart from this Lease;
(b) bring into or permit to be kept in the Premises any
dangerous, explosive or obnoxious substances;
(c) have property of substantial size or quantity delivered to or
removed from the Premises without first making arrangements reasonably
satisfactory to Landlord;
(d) bring into the Premises or use any furniture or equipment that
might be harmful thereto or harmful or annoying to others in the Building, or
place any weight in the Premises beyond its safe carrying capacity;
(e) install any equipment of any kind or nature which will or might
necessitate changes, replacements or additions to, or in the use of, the water
system, heating system, plumbing system, air conditioning system or electrical
system of the Premises or the Building unless approved by Landlord in writing;
-13-
(f) paint, affix or display in any other manner on any portion of the
outside or inside of the Building, any sign, advertisement or notice except
those on the directories and doors of offices, and then only those approved by
Landlord as to place, number, size, color and style; or
(g) conduct itself or permit its agents, servants, employees, guests
or visitors to conduct themselves in a manner which, in Landlord's judgment, is
unlawful, improper or unsafe.
10. Tenant's Actions Requiring Landlord's Consent. Without the prior
---------------------------------------------
written consent of Landlord, Tenant will not:
(a) Use the Premises other than for the Permitted Use;
(b) voluntarily or involuntarily assign, mortgage or pledge this
Lease or sublet all or any part of the Premises, except in strict compliance
with the provisions of Section 17, below;
(c) alter, improve or add to the Premises (all alterations,
improvements, additions and fixtures will belong to Landlord and remain in the
Premises at the end of the Lease except that if Landlord designates at the time
of their installation that any of the same be removed, Tenant will do so and
will restore or repair any damage to the Premises caused by such installation or
removal, all at its expense). If Landlord shall consent to such alteration,
improvements or additions by Tenant, such consent shall not be deemed to be any
agreement or consent by Landlord pursuant to N.J.S.A. (S)2A:44-68 or any
successor statute thereto, to subject Landlord's interest in the Premises,
Building or Land to any mechanics' or materialmens' lien which may be filed in
respect to such alterations, improvements or additions under by or on behalf of
Tenant. Tenant shall be entitled to replace the entrance door and/or entrance
wall to the Premises at its expense and in a manner that does not cause any
interference to other tenants of the Building, subject to Landlord's approval of
Tenant's proposed design and location. Tenant shall further be entitled to
install a satellite dish antennae or similar equipment to facilitate Tenant's
computer and telephony communications, which installation shall be subject to
the approval by Landlord as to the location and size of the equipment, which
approval shall not be unreasonably withheld. Tenant shall further be entitled to
place its name on the outer door of the Premises and also in the interior
reception area, provided such signage shall be subject to Landlord's approval.
Landlord's consent as to the matters of covered by this subparagraph (c) shall
not be unreasonably withheld.
11. Covenants of Landlord.
----------------------
(a) Quiet Enjoyment. Landlord covenants that it has the right to
---------------
make this Lease for the Term, and that if Tenant shall pay the rent and perform
all of the covenants, terms, conditions and agreements of this Lease to be
performed by Tenant, Tenant shall freely, peaceably and quietly occupy and enjoy
the Premises without interference by Landlord or any party claiming through or
under Landlord, except for the provisions of paragraph (b) hereof.
(b) Reservation. Landlord reserves to itself and its successors and
-----------
assigns (whether acting itself or through persons authorized by it) the
following rights (all of which are
-14-
hereby consented to by Tenant). Landlord may exercise these rights from time to
time without notice and without liability to Tenant for damage or injury to
property, persons or business and without effecting an eviction, constructive or
actual, or disturbance of Tenant's use or possession of the Premises or giving
rise to any claim for set off or abatement of Rent or otherwise affecting
Tenant's obligations hereunder:
(i) To decorate and to make repairs, alterations, additions, changes
or improvements, whether structural or otherwise, in and about the Building or
any part thereof and for such purposes to enter upon the Premises, and during
the continuance of any such work, to temporarily close doors, entryways, common
areas, public space and corridors in the Building, to interrupt or temporarily
suspend Building Services and facilities and to change the arrangement and
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building, so long as the Premises
are reasonably accessible and Tenant is not unreasonably disturbed in use or
possession thereof. If Landlord desires to perform any repairs, additions or
alterations to the Building or the Premises, Landlord shall take commercially
reasonable measures to minimize any disruption to Tenant's operations at the
Premises.
(ii) To have and retain paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber the Premises.
(iii) To grant to anyone the exclusive right to conduct any business
in or render any service to the Building, provided such exclusive right shall
not operate to exclude Tenant from the Permitted Use.
(iv) [INTENTIONALLY DELETED]
(v) [INTENTIONALLY DELETED]
(vi) To take all such reasonable measures as Landlord may deem
advisable for the security of the Building and its occupants, including, without
limitation, the search of persons entering or leaving the Building, the
evacuation of the Building for cause, suspected cause, or for drill purposes,
the temporary denial of access to the Building, and the closing of the Building
after normal business hours and on Saturdays, Sundays and holidays, subject,
however, to Tenant's right to admittance when the Building is closed after
normal business hours under such reasonable regulations as Landlord may
prescribe from time-to-time which may include, by way of example but not
limitation, that persons entering or leaving the Building, whether or not during
normal business hours, identify themselves to a security officer by registration
or otherwise and that such persons establish their right to enter or leave the
Building.
(vii) To enter the Premises to perform Landlord's covenants under
this Lease, to exercise Landlord's remedies under this Lease, to ascertain if
Tenant is in compliance with its covenants under this Lease, to inspect the
Premises, and to exhibit the Premises to
-15-
Mortgagees and Lessors and to prospective lenders, purchasers and tenants;
provided any such entries for inspection or exhibition shall be during normal
business hours after reasonable notice.
(viii) To change the name by which the Building is designated.
(ix) To transfer, assign and convey, in whole or in part, the
Building and any and all of its rights under this Lease, and in the event
Landlord assigns its rights under this Lease, Landlord shall thereby be released
from any further obligations hereunder, accruing after the date of such
assignment, and Tenant agrees to attorn to and look solely to such successor in
interest of the Landlord for performance of such obligations.
(c) Building Systems. Landlord represents and warrants that the
----------------
electrical, plumbing and HVAC Building systems will be in working order as of
the Commencement Date.
(d) Compliance with Law. Landlord covenants and agrees that it shall
-------------------
comply with applicable laws and codes with respect to the Building.
12. Loss. Damage or Injury.
----------------------
(a) Tenant will be responsible for and hereby relieves Landlord from
and indemnifies Landlord against all liability by reason of any injury, damage
or loss to any person or property which occurs in the Premises or in any other
part of the Building, and which is caused wholly or in part by the negligence of
Tenant, its agents, servants, invitees or employees. Tenant further releases
Landlord from all liability for damage to or loss of any property of Tenant, or
any third party which may result from the leakage of water into the Premises, or
from any other cause unless resulting from the negligence of Landlord, its
agents or employees.
(b) Tenant will not conduct nor permit to be conducted, any activity,
nor place any equipment in or about the Premises or the Building or the Common
Facilities, which will in any way increase the rate of fire insurance or other
insurance on the Building or cause the cancellation or other termination
thereof; and if any increase in the rate of fire insurance or other insurance is
stated by any insurance company or by the applicable Insurance Rating Bureau to
be due to any activity or equipment of Tenant in or about the Premises or the
Building or the Common Facilities, such statement shall be conclusive evidence
that the increase in such rate is due to such activity or equipment and, as a
result thereof, Tenant shall be liable for such increase and shall reimburse
Landlord therefor upon demand and any such sum shall be considered Additional
Rent due and payable pursuant to Section 3(b), above.
(c) Tenant shall carry public liability insurance in a company or
companies licensed to do business in the State of New Jersey and carrying a
rating reasonably satisfactory to Landlord. Said insurance shall be in minimum
amounts approved by Landlord from time to time (as set forth in the rules and
regulations attached hereto as Exhibit "C"), which amounts may be adjusted by at
least an amount equal to the amount by which inflation (as measured by the
change from the Lease Date to the last day of the month preceding such
adjustment in the Consumer Price Index,(CPI-W), 1982-84 Base, Philadelphia-New
Jersey as published by the
-16-
United States Department of Labor (Bureau of Labor Statistics), or if such index
is discontinued, its successor, or if no successor is designated, any other
index reasonably acceptable to Landlord and Tenant) affects the original
insurance limits; shall name Landlord and any mortgagee of the Building or Land
as additional insureds, as their interests may appear, and shall contain an
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured has waived his right of action against any
party prior to the occurrence of a loss. If required by Landlord, receipts
evidencing payment for said insurance shall be delivered to Landlord at least
annually by Tenant. Each policy shall contain an endorsement that will prohibit
its cancellation prior to the expiration of thirty (30) days after notice of
such proposed cancellation to Landlord. Landlord agrees to keep and maintain
such casualty insurance as may be required by the mortgagee of the Building from
time to time.
(d) Each party agrees to use its best efforts to include in each of
its insurance policies a waiver of the insurer's right of subrogation against
the other party, or if such waiver should be unobtainable or unenforceable, an
agreement that such policy shall not be invalidated if the assured waives the
right of recovery against any party responsible for a casualty covered by the
policy before the casualty. Each party hereby releases the other party with
respect to any claim (including a claim for negligence) which it might otherwise
have against the other party for loss, damage or destruction with respect to its
property occurring during the term of this Lease and with respect and to the
extent to which it is insured under a policy or policies containing a waiver of
subrogation or naming the other party as an additional assured.
13. Restoration of Damage. If the Premises are damaged by
---------------------
fire or other casualty:
(a) Landlord will restore the Premises (but not Tenant's property
located therein) with reasonable promptness at Landlord's expense unless the
nature of the damage to the Building is such that Landlord determines that the
restoration cannot be completed within one-hundred eighty (180) days, in which
event either Landlord or Tenant may, upon notice to the other party given within
thirty (30) days after Landlord's determination, terminate this Lease.
(b) Landlord will not be liable to Tenant for any interruption in use
of the Premises which results from damage to any part of the Building, but Rent
will be proportionately abated during any period of time when any part (or all)
of the Premises is untenable.
(c) The provisions of this Section 13 shall be considered an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and any law of the State of New Jersey providing for such a
contingency in the absence of an express agreement and any other law of like
import, now or hereafter in force, shall have no application in such case.
14. Condition of Leased Space. Landlord leases the Premises in its
-------------------------
condition when the Term begins and without any representation with respect to it
or any duty to repair or alter it, except as to punch-list items.
15. Default by Tenant.
-----------------
-17-
(a) Each of the following shall constitute an event of default (an
"Event of Default") hereunder:
(i) If Tenant fails to pay within five (5) days after written
notice all amounts due hereunder, including, without limitation, Basic Rent and
Additional Rent; or
(ii) If Tenant fails to perform any of its other obligations
hereunder within thirty (30) days after written notice of any such failure has
been given by Landlord; or
(iii) If Tenant abandons the Premises or without having given
prior written notice to Landlord either vacates the Premises or removes
therefrom all or substantially all of its property; or
(iv) If Tenant files a petition commencing a voluntary case
under the Federal Bankruptcy Code (Title 11 of the United States Code), as now
or hereafter in effect, or under any similar law, or files a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any state
bankruptcy law or any similar state law; or
(v) If an involuntary case against Tenant as debtor is
commenced by a petition under the Federal Bankruptcy Code (Title 11 of the
United States Code), as now or hereafter in effect, or under any similar law; or
a petition or answer proposing the adjudication of Tenant as a bankrupt or its
reorganization pursuant to any state bankruptcy law or any similar law shall be
filed in any court and shall not be dismissed, discharged or denied within sixty
(60) days after the filing thereof, or if Tenant shall consent or acquiesce in
the filing thereof; or
(vi) If a custodian, receiver, trustee or liquidator of Tenant
or of all or substantially all of Tenant's property or of the Premises shall be
appointed in any proceedings brought by Tenant; or if any such custodian,
receiver, trustee or liquidator shall be appointed in any proceedings brought
against Tenant and shall not be discharged within sixty (60) days after such
appointment; or if Tenant shall consent to or acquiesce in such appointment; or
(vii) If Tenant shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts, generally
as they become due.
(b) If Tenant commits an Event of Default hereunder, then Landlord
will have the right to do once or more often any one or more of the following:
(i) declare due and payable and ▇▇▇ to recover all unpaid Rent
and all Rent for the unexpired Term of this Lease and all costs and commissions
provided or permitted by law, together with the unamortized cost of the
improvements to the Premises performed by Landlord or reimbursed by Landlord to
Tenant under the Work Letter. In the event Landlord has granted Tenant any
concessions in the making of this lease (including, by way of illustration and
not limitation, free Basic Rent, excess Tenant improvement allowances, moving
allowances or other payments or credits to or on behalf of Tenant, collectively,
"Concessions") all such
-18-
Concessions shall be due and payable in full to Landlord and collectible as
Rent, notwithstanding any other provision herein or in any Rider hereto to the
contrary.
(ii) declare this Lease ended;
(iii) lease all or any part of the Premises to any other
person with or without first altering the same; and
(iv) regain possession through summary dispossess proceedings
or through any other lawful manner.
(c) If a default by Tenant not involving the payment of money occurs
and is of such a nature that it cannot reasonably be cured within thirty (30)
days after written notice as aforesaid, Landlord will not exercise any right,
power or remedy hereunder so long as Tenant is proceeding with due diligence, in
good faith and with continuity to complete the curing of such default, provided
in all cases that the default is completely cured with ninety (90) days after
such written notice, and if not so cured within such 90-day period then Landlord
shall be fully empowered to exercise any right, power or remedy hereunder.
16. Eminent Domain. If all or part of the Building is taken or
---------------
condemned for public use (or if Landlord elects to convey title to the condemnor
by a deed in lieu of condemnation), then at the option of Landlord this Lease
will end as of the date title vests in the condemnor and rent will ▇▇▇▇▇ for the
Premises. Tenant will have no claim against Landlord or the condemnor as a
result of such condemnation or conveyance except to the extent that an award
shall specifically include an amount in respect of Tenant's moving expenses.
17. Assignment and Subletting.
--------------------------
(a) In the event Tenant desires to assign this Lease or sublet the
Premises or any part thereof, Tenant shall give Landlord written notice of such
desire. Landlord shall then have a period of thirty (30) days following receipt
of such notice within which to notify Tenant in writing that Landlord elects any
of the following options (which options shall be within the sole and absolute
discretion of Landlord): (i) to terminate this Lease as to the space affected by
the proposed assignment or sublease as of the date specified by Tenant, in which
event Tenant will be relieved of all further obligations hereunder after such
date as to such space; or (ii) to permit Tenant to assign or sublet such space
subject, however, to subsequent written approval of the proposed assignee or
sublessee by Landlord, which approval shall not be unreasonably withheld or
delayed; provided, however, that if the rental rate agreed upon between Tenant
and its sublessee is greater than the rental rate payable under this Lease, then
one-half (1/2) of such excess rental (and each installment thereof) shall be
paid by Tenant to Landlord as Additional Rent hereunder within five (5) days of
Tenant's receipt thereof.
(b) In respect of the foregoing: (i) no assignment or subletting by
Tenant shall relieve Tenant of any obligation under this Lease; (ii) any
attempted assignment or sublease by Tenant in violation of the terms and
conditions of this Section 17 shall be void; and (iii) the
-19-
provisions of this Section 17 shall apply fully to any subsequent assignment or
subletting by an assignee or sublessee.
(c) For purposes of this Section 17 any transfer or change in control
of Tenant (or any sublessee or assignee) by operation of law or otherwise shall
be deemed an assignment hereunder, including, without limitation, any merger,
consolidation, dissolution or any change in the controlling equity interests of
Tenant or any subtenant or assignee (in a single transaction or a series of
related transactions); provided, however, that Landlord shall neither terminate
this Lease nor deny approval to an assignment arising from (i) an issuance of
stock in a public offering or (ii) the sale of a controlling equity interest of
Tenant where the purchaser is publicly held and the net worth of the resulting
entity shall be greater than the net worth of the Tenant immediately prior to
the transaction.
(d) Upon prior written notice to Landlord, Tenant may assign this
Lease to an affiliate of Tenant provided that following such assignment Tenant
shall continue to be responsible for all of the obligations of Tenant under this
Lease, provided further that the assignee shall execute an agreement in form and
substance reasonably satisfactory to Landlord confirming the assumption of the
Lease by the assignee and the continued responsibility of the Tenant hereunder.
For purposes of this Lease, and "affiliate" is an entity that controls, is
controlled by or is under common control of Tenant.
18. Extension of Term; Waiver; Holding Over.
----------------------------------------
(a) This Lease will end at the conclusion of the Term. Tenant waives,
to the extent permissible under law, all rights to receive any notice to quit
the Premises upon termination of this Lease (whether on conclusion of the Term
or any renewal thereof or on earlier termination following a default by Tenant).
(b) If Tenant retains possession of the Premises or any part thereof
after termination of this Lease by expiration of the Lease Term or otherwise,
Tenant shall pay Landlord: (i) as agreed liquidated damages (and not as a
penalty) for such wrongful retention alone, an amount, calculated on a per diem
basis for each day of such wrongful retention, equal to twice the annual Basic
Rent and the Additional Rent for the time Tenant thus remains in possession, and
(ii) all other damages, costs and expenses sustained by Landlord by reason of
Tenant's wrongful retention. Without limiting any rights and remedies of
Landlord resulting by reason of the wrongful holding over by Tenant, or creating
any right in Tenant to continue in possession of the Premises, all of Tenant's
obligations with respect to the use, occupancy and maintenance of the Premises
shall continue during such period of wrongful retention.
19. Delays in Exercising Rights. No delay or omission by Landlord or
---------------------------
Tenant in exercising any right upon any default by the other will impair any
such right or be construed as a waiver of any such default or an acquiescence in
it. No waiver of any default will affect any later default or impair any rights
of Landlord or Tenant with respect thereto. No single, partial or full exercise
of any right by Landlord or Tenant will preclude other or further exercise
thereof.
-20-
20. Subordination; Attornment. This Lease and all rights of Tenant
-------------------------
hereunder are and shall be subject to and subordinate in all respects to all
present and future ground leases, overriding leases and underlying leases of the
Premises, Building or the Land and to all mortgages and building loan
agreements, including leasehold mortgages and building loan mortgages, which may
now or hereafter affect the same, to each and every advance made or to be made
under such mortgages, and to all renewals, modifications, replacements and
consolidations of such mortgages. This Section 21 shall be self-operative and no
further instrument of subordination shall be required. If the holder of a
superior mortgage shall succeed to Landlord's estate in the Building or the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a deed or otherwise, then at the election of such party so
succeeding to Landlord's rights (herein sometimes called "successor landlord"),
Tenant shall attorn to and recognize such successor landlord as Tenant's
landlord under this Lease, and shall promptly execute and deliver any instrument
that such successor landlord may reasonably request to evidence such attornment.
Tenant hereby irrevocably appoints such successor landlord as Tenant's attorney-
in-fact to execute and deliver such instrument for and on behalf of Tenant.
Tenant hereby waives any right Tenant may have under any present or future law
to terminate this Lease or surrender the Premises by reason of the institution
of any action to foreclose a superior mortgage, and this Lease shall not be
affected by any such action unless and until the holder of the superior mortgage
elects in such proceeding or action to terminate this Lease. Landlord agrees to
request from its mortgagee a Non-Disturbance Agreement in favor of Tenant,
provided all costs and expenses related to securing such agreement shall be
borne by Tenant.
21. Limitation of Liability. Tenant shall look only to Landlord's
-----------------------
interest in the Building and the Land (or the proceeds of any sale thereof) for
the satisfaction of Tenant's remedies for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default by Landlord under this Lease, and no other property or other
assets of Landlord or any person owning an interest in Landlord shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or Tenant's use and occupancy of the Premises.
22. Environmental Matters.
----------------------
(a) Hazardous Wastes. Tenant shall not engage in operations at the
----------------
Premises which involve the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of "hazardous substances" or "hazardous
waste" as such terms are defined under the Industrial Site Recovery Act,
N.J.S.A. 13:1K-6, et seq., ("ISRA"). Tenant further covenants that it will not
cause or permit to exist as a result of an intentional or unintentional action
or omission on its part, the releasing, spilling, leaking, pumping, pouring,
emitting, emptying or dumping from, on or about the Building or the Land on
which is located of any hazardous substance (as such term is defined under
N.J.S.A. 58:10-23.11(b)(k) and N.J.A.C. 7:26B-1.3). Notwithstanding anything set
forth above, Tenant may handle, store, use or dispose of products containing
small quantities of hazardous substances, if (i) such products are used in the
ordinary course of Tenant's business, (ii) are customarily found in offices
(such as cleaning fluids, toner for copies, and the like), and (iii) Tenant
handles, stores, uses and disposes of any such hazardous
-21-
substances in a safe and lawful manner and shall not allow such hazardous
substances to contaminate the Premises, the Building or the environment. Tenant
shall not be responsible for any hazardous substances brought into the Premises
by Landlord, its agents, contractors or employees.
(b) ISRA Compliance. Tenant shall, at Tenant's own expense, comply
---------------
with ISRA, if applicable to Tenant. Tenant shall, at Tenant's own expense, make
all submissions to, provide all information to, and comply with all applicable
requirements of, the Bureau of Industrial Site Evaluation ("the Bureau") of the
New Jersey Department of Environmental Protection ("NJDEP"). Should the Bureau
or any other division of NJDEP determine that a cleanup plan be prepared and
that a cleanup be undertaken because of any spills or discharges of hazardous
substances or hazardous wastes at the Premises and not caused by Landlord which
occur during the Term of this Lease, then Tenant shall, at the Tenant's own
expense, prepare and submit the required plans and financial assurances, and
carry out the approved plans. Tenant's obligations under this paragraph shall
arise if there is any closing, terminating or transferring of operations of an
industrial establishment at the Premises pursuant to ISRA. At no expense to the
Landlord, Tenant shall promptly provide all information reasonably required by
Landlord for preparation of non-applicability affidavits and shall promptly sign
such affidavits when requested by Landlord. Tenant shall indemnify, defend and
save harmless Landlord from all fines, suits, procedures, claims and actions of
any kind arising out of or in any way connected with spills or discharges of
hazardous substances or hazardous wastes at the Premises which occur during the
Term of this Lease; and from all fines, suits, procedures, claims and actions of
any kind arising out of Tenant's failure to provide all information, make all
submissions and take all actions required by ISRA, the Bureau or any other
division of NJDEP. Tenant's obligations and liabilities under this paragraph
shall continue so long as Landlord remains responsible for any spills or
discharges of hazardous substances or hazardous wastes at the Premises which
occur during the Term of this Lease. Tenant's failure to abide by the terms of
this paragraph shall be subject to equitable relief.
(c) Environmental Reports. With respect to Tenant's occupancy of the
---------------------
Premises, Tenant shall promptly provide Landlord with any notices,
correspondence and submissions made by Tenant to or to Tenant from NJDEP, the
United States Environmental Protection Agency (EPA), the United States
Occupational Safety and Health Administration (OSHA), or any other local, state
or federal authority which requires submission of any information concerning
environmental matters or hazardous wastes or hazardous substances.
(d) Conditions Precedent to Assignment and Sublease. As a condition
-----------------------------------------------
precedent to Tenant's right to sublease the Premises or to assign this Lease,
Tenant shall, at Tenant's own expense, comply with ISRA or secure a Non-
Applicability letter.
(e) SIC Number. Tenant represents and warrants that its SIC Number
----------
set forth in the Basic Lease Provisions is true and correct.
(f) Landlord's Right to Perform. In the event of Tenant's failure to
---------------------------
comply in full with this Section 22, Landlord may, at its option, perform any
and all of Tenant's obligations as
-22-
aforesaid and all reasonable costs and expenses incurred by Landlord in the
exercise of this right shall be deemed to be Additional Rent payable in
accordance with paragraph 3, above.
(g) Survival of Tenant's Obligations. Tenant's obligations under
--------------------------------
this Section 22 shall survive the expiration or sooner termination of this
Lease.
(h) Landlord hereby represents to Tenant that as of the date hereof,
Landlord has received no notice of any violation of any environmental laws with
respect to the Building or the Premises. Notwithstanding anything to the
contrary contained in this Lease, Tenant shall have no responsibility for any
cost or expense arising from any hazardous substances determined to have been in
existence at the Premises or the Building prior to the commencement of the
Lease.
23. Relocation of Tenant. Landlord, by at least ninety (90) days'
--------------------
prior written notice to Tenant, may require Tenant to move from the Premises to
another single location substantially similar to and of comparable size with the
Premises in the Building. In the event of any such relocation: (a) Landlord will
pay all expenses of preparing and decorating the relocated premises so that they
will be substantially similar to the Premises and, in addition, will pay the
expense of moving Tenant's furniture and equipment to the relocated premises,
the cost of reinstalling Tenant's telecommunication and tele-data equipment and
all other expenses reasonably related to the move (e.g. reprinting of
stationery, etc.); and (b) Landlord and Tenant will execute a modification of or
supplement to this Lease in respect of and identifying such relocated premises,
such to be otherwise on terms identical to the terms hereof.
24. Miscellaneous.
--------------
(a) No Representations by Landlord. Tenant acknowledges that neither
------------------------------
Landlord nor any broker, agent or employee of Landlord has made any
representations or promises with respect to the Premises or the Building except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth.
(b) No Partnership. Nothing contained in this Lease shall be deemed
--------------
or construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between the parties hereto other
than that of Landlord and Tenant.
(c) Brokers. Landlord recognizes Broker as the broker procuring this
-------
Lease and shall pay Broker a commission therefor pursuant to a separate
agreement between Broker and Landlord. Landlord and Tenant each represent and
warrant one to another that except as set forth herein neither of them has
employed any broker, agent or finder in carrying on the negotiations relating to
this Lease. Landlord shall indemnify and hold Tenant harmless, and Tenant shall
indemnify and hold Landlord harmless, from and against any claim or claims for
brokerage or other commission arising from or out of any breach of the foregoing
representation and warranty by the respective indemnitors.
(d) Estoppel Certificates. Tenant agrees, at any time and from time
---------------------
to time, upon not less than ten (10) days prior written notice by Landlord, to
execute, acknowledge and deliver
-23-
to Landlord written statements or other documents (i) certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (ii) stating the dates to which the Rent and any other charges
hereunder have been paid by Tenant, (iii) stating whether or not to the best
knowledge of Tenant, Landlord is in default in the performance of any covenant,
agreement or condition contained in this Lease, and if so, specifying each such
default of which Tenant may have knowledge, (iv) stating that this Lease is
subject and subordinate to the lien of any deed of trust, mortgage, or other
security instrument which may in the future encumber or affect the Building, and
any renewals, extensions, modifications, recastings or refinancing thereof, and
that if requested to do so, Tenant will attorn to a secured party or purchaser
that succeeds to Landlord's interests as a result of any foreclosure action on
the Land or the Building, (v) stating the address to which notices to Tenant
should be sent, and (vi) such other matters relating to this Lease as may be
reasonably requested by Landlord or its designee. Any such statement delivered
pursuant hereto may be relied upon by any owner of the Building or the Land, any
prospective purchaser of the Building or the land, any mortgagee or prospective
mortgagee of the Building or the Land or of Landlord's interest in either, or
any prospective assignee of any such mortgage. Landlord agrees at any time and
from time to time upon not less than ten (10) days prior written notice from
Tenant, to execute, acknowledge and deliver to Tenant a written statement
covering the matters set forth in items (i) through (vi) of the first sentence
of this subparagraph (d).
(e) Waiver of Jury Trial. Landlord and Tenant hereby waive trial by
--------------------
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on or in respect of any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of Landlord and
Tenant hereunder, Tenant's use or occupancy of the Premises, and/or any claim of
injury or damage.
(f) Notices. All notices or other communications hereunder shall be
-------
in writing and shall be deemed duly given if hand delivered (with receipt
therefor), or if delivered by certified or registered mail, return receipt
requested, first-class postage prepaid, (i) if to Landlord, at the address
provided in the Basic Lease Provisions, and (ii) if to Tenant, at the Premises,
unless notice of a change of address is given pursuant to the provisions of this
Section. If any notice sent by certified and registered mail is returned to the
sender by the United States Post Office as undeliverable, notice shall be deemed
duly given when mailed.
(g) Applicable Law. This Lease shall be construed, governed, and
--------------
enforced under the laws of the State of New Jersey. It is expressly understood
that if any future or present law, ordinance, regulation or order requires an
occupancy permit for the Premises, Tenant will obtain such permit at Tenant's
own expense.
(h) Invalidity of Particular Provisions. If any provision of this
-----------------------------------
Lease or the application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease or the
application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby. Each
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
-24-
(i) Gender and Number. Feminine or neuter pronouns shall be
-----------------
substituted for those of the masculine form, and the plural shall be substituted
for the singular number, in any place or places herein in which the context may
require such substitution.
(j) Benefit and Burden. The provisions of this Lease shall be
------------------
binding upon and shall inure to the benefit of the parties hereto and each of
their respective representatives, successors and assigns. Landlord may freely
and fully assign its interest hereunder.
(k) Captions. The captions and headings herein are for convenience
--------
of reference only and in no way define or limit the scope or content of this
Lease or any provision thereof.
(l) Joint and Several Liability. If two or more individuals,
---------------------------
corporations, partnerships, or other business associations (or any combination
of two or more thereof) shall sign this Lease as Tenant, the liability of each
such individual, corporation, partnership or other business association to pay
Rent and perform all other obligations hereunder shall be deemed to be joint and
several. In like manner, if the Tenant named in this Lease shall be a
partnership or other business association, the members of which are subject to
personal liability by virtue of statute or general law, the liability of each
such member shall be joint and several.
(m) Corporate Tenancy. If Tenant is a corporation, the undersigned
-----------------
officer of Tenant warrants and certifies to Landlord that Tenant is a
corporation in good standing and duly organized under the laws of the state in
which the Premises are located, or if chartered in a state other than that in
which the Premises are located, is a corporation in good standing and duly
organized under the laws of such state and is authorized to do business in the
state in which the Premises are located. The undersigned officer of Tenant
hereby further warrants and certifies to Landlord that he, as such officer, is
authorized and empowered to bind the corporation to the terms of this Lease by
his signature thereto.
(n) Parking. Landlord agrees to make available for Tenant's use four
-------
(4) parking spaces per 1000 square feet of rentable area in the Premises. Tenant
covenants and agrees to comply with all reasonable rules and regulations which
Landlord may hereafter from time to time make to assure use of designated
parking spaces on the Land by permitted users. Landlord's remedies under such
rules and regulations may include, but shall not be limited to, the right to tow
away at the owner's expense any vehicles not parked in compliance with these
rules and regulations. Landlord shall not be responsible to Tenant for the non-
compliance or breach by any other tenant of said rules and regulations,
provided, however, Landlord agrees to use reasonable efforts to enforce such
rules and regulations uniformly.
(o) Time of Essence. Time shall be of the essence with respect to
----------------
this Lease and all the attached Exhibits, except as otherwise therein provided.
-25-
(p) No Option. The submission of this Lease for examination does not
---------
constitute a reservation of or option for the Premises, and this Lease becomes
effective only upon execution and delivery thereof by Landlord.
(q) Price Controls. If at any time during the Term of this Lease,
--------------
any of Tenant's percentage of increases in Rent or any other charges payable by
Tenant hereunder shall be frozen or limited by any local, State or Federal
governmental agency or statute, ordinance or regulation to a sum less than that
provided for herein, and Landlord shall be prevented from collecting any such
portion of Tenant's percentage of increase or any such charge provided for
herein, then Landlord shall be entitled to collect so much thereof as shall be
permitted by such local, State or Federal governmental agency or statute,
ordinance or regulation, and should the additional amounts which Landlord is
unable to collect become collectible at a later date, whether prior to or after
the termination of this Lease for any reason, then Tenant agrees to pay all such
increases to Landlord immediately upon notice from Landlord specifying such
amounts. Any statute or statutes of limitations applicable to the collection of
such sums or portion thereof shall be tolled as to such portion which is
uncollectible from the date on which Landlord is prevented from collecting said
sums to the date on which such sums become legally collectible by Landlord.
(r) Arbitration. At either party's option, all claims, disputes and
-----------
other matters in question or calling for mutual agreement between Landlord and
Tenant arising out of or relating to this Lease or the breach hereof, shall be
decided by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then obtaining. Any arbitration arising out
of or relating to this Lease or any breach hereof shall include, by
consolidation, joinder or joint filing, any other person not a party to this
Lease to the extent necessary for the final resolution of the matter in
controversy. This agreement to arbitrate shall be specifically enforceable under
the prevailing arbitration law. The award rendered by the arbitrators shall be
final and judgment may be entered upon it in accordance with applicable law in
any court having jurisdiction thereof. Notice of the demand for arbitration
shall be filed with the other party and with the American Arbitration
Association. The demand for arbitration shall be made within a reasonable time
after the claim, dispute or other matter has arisen and in no event shall it be
made after the date when institution of legal or equitable proceedings based on
such claim, dispute or other matter would be barred by the applicable statute of
limitations. Unless otherwise agreed in writing by Landlord and Tenant, Landlord
and Tenant shall continue to perform their obligations under this Lease in
accordance with Landlord's interpretation of the claim, dispute or other matter
during any arbitration proceedings until final resolution thereof. The venue for
arbitration or litigation with respect to all claims, controversies and disputes
arising out of or relating to this Lease or any breach hereof shall be the
county in which the Land and Building are located.
(s) Renewal Option. Provided Tenant is not in default and this Lease
--------------
shall be in effect, Tenant shall have the right to renew this Lease on one (1)
occasion for an additional five (5) year term at the then applicable fair market
rental rate. If the term of the Lease has been extended pursuant to the exercise
by Tenant of its rights under subparagraph (t) below, then such five (5) year
renewal term shall commence upon expiration of the extended term as provided
-26-
below. In order to exercise its right, Tenant shall give Landlord one hundred
eighty (180) days prior written notice of exercise following which notice
Landlord shall determine the fair market rental rate. If Tenant shall disagree
with Landlord's determination, the fair market rental rate shall be determined
in accordance with the provisions of subparagraph (u) below.
(t) Rights as to Certain Adjacent Space. Provided Tenant is
-----------------------------------
not in default and this Lease shall be in effect:
(i) Tenant is hereby given the right of first refusal with
respect to the adjacent space marked as "Expansion Space A" on Exhibit "A-2"
(the "Expansion Space A") as follows: at such time as Expansion Space A becomes
available and Landlord determines to issue a proposal for the Expansion Space A,
it shall first provide Tenant with the terms and conditions under which Landlord
is willing to offer the Expansion Space A for lease and Tenant shall have the
period of fifteen (15) days to accept or decline Landlord's offer. Landlord's
proposal shall provide for a fair market rental rate as determined by Landlord.
If Tenant shall accept Landlord's proposal but disagrees with Landlord's
determination of the fair market rental rate, the same shall be determined in
accordance with the provisions of subparagraph (u) below. The term of the lease
for Expansion Space A shall be for such minimum term as Landlord is willing to
offer the space for lease, provided, however, that, in accepting Landlord's
proposal, Tenant may at that time elect extend the term of this Lease for the
Premises to be coterminous with the term of the lease for Expansion Space A,
basic rent for such extended period being the fair market rental rate for the
Premises as either determined by Landlord and agreed to by Tenant or as
determined under subparagraph (u) below. If Tenant shall accept the provisions,
then Landlord and Tenant shall promptly enter into an amendment to this Lease
incorporating the terms of Landlord's proposal. If Tenant shall decline
Landlord's offer, then Tenant's rights under this subparagraph (i) shall cease
provided, however that Landlord shall agree to use its reasonable best efforts
to lease Expansion Space A under terms and conditions which allow the Landlord
to relocate the tenant for such space. In the event of such reletting, provided
Tenant is not in default and this Lease shall be in effect, upon one hundred
twenty (120) days prior written notice of Tenant's need for additional space in
the Building, Landlord agrees to use its reasonable best efforts to cause
Expansion Space A to be made available to Tenant under mutually agreeable terms
and conditions, with rent at the then fair market rental for such space.
(ii) Tenant is hereby given a second right of refusal (under
and subject to rights granted to Wiltel Communications, LLC ("Wiltel"), its
successors and assigns) with respect to the space marked as "Expansion Space B"
on Exhibit "A-3" ("Expansion Space B") as follows: at such time as Expansion
Space B becomes available (following the waiver or expiration of the rights of
Wiltel) and Landlord determines to issue a proposal for Expansion Space B, it
shall provide Tenant with the terms and conditions under which Landlord is
willing to offer Expansion Space B for lease and Tenant shall have a period of
fifteen (15) days to accept or decline Landlord's offer. Landlord's proposal
shall provide for a fair market rental rate as determined by Landlord. If Tenant
shall accept Landlord's proposal but disagrees with Landlord's determination of
the fair market rental rate, the same shall be determined in accordance with the
provisions of subparagraph (u) below. The term of the lease for Expansion Space
B shall be for such minimum term as Landlord is willing to offer the space for
lease, provided, however, that,
-27-
in accepting Landlord's proposal, Tenant may at that time elect to extend the
term of this Lease for the Premises to be coterminous with the term of the lease
for Expansion Space B, basic rent for such extended period being the fair market
rental rate for the Premises as either determined by Landlord and agreed to by
Tenant or as determined under subparagraph (u) below. If Tenant shall accept the
provisions, then Landlord and Tenant shall promptly enter into an amendment to
this Lease incorporating the terms of Landlord's proposal. If Tenant shall
decline Landlord's offer, then Tenant's rights under this subparagraph (ii)
shall cease.
(iii) Tenant is hereby give a right of first refusal with
respect to space marked as "Expansion Space C" on Exhibit "A-4" ("Expansion
Space C"), as follows: at such time during the first two (2) years of the Term
hereof as Expansion Space C becomes available and Landlord determines to issue a
proposal for Expansion Space C, it shall first provide Tenant with the terms and
conditions under which Landlord is willing to offer the Expansion Space C for
lease and Tenant shall have the period of fifteen (15) days to accept or decline
Landlord's offer. Landlord's proposal shall provide for a fair market rental
rate as determined by Landlord. If Tenant shall accept Landlord's proposal but
disagrees with Landlord's determination of the fair market rental rate, the same
shall be determined in accordance with the provisions of subparagraph (u) below.
The term of the lease for Expansion Space C shall be for such minimum term as
Landlord is willing to offer the space for lease, provided, however, that, in
accepting Landlord's proposal, Tenant may at that time elect to extend the term
of this Lease for the Premises to be coterminous with the term of the lease for
Expansion Space C, basic rent for such extended period being the fair market
rental rate for the Premises as either determined by Landlord and agreed to by
Tenant or as determined under subparagraph (u) below. If Tenant shall accept the
provisions, then Landlord and Tenant shall promptly enter into an amendment to
this Lease incorporating the terms of Landlord's proposal. If Tenant shall
decline Landlord's offer, then Tenant's rights under this subparagraph (iii)
shall cease. Tenant's rights under this subparagraph (iii) shall be subject and
subordinate to the rights of any proposed tenant negotiating with Landlord to
lease all of the south wing of the second floor of the Building, together with
additional space in the Building, and Landlord shall have no obligation to issue
Tenant a proposal for Expansion Space C so long as it is negotiating a lease for
such space; provided, however, that in such event, Tenant's rights under this
subparagraph (iii) shall relate and apply with respect to any remainder of
Expansion Space C or additional space on the first floor of the Building not
being let to such other tenant.
(u) In the event Landlord and Tenant are unable to agree upon the
fair market rental rate under subparagraph (s) above within thirty (30) days of
Landlord's initial determination, then the rate shall be established by an
appraiser mutually agreed upon by the parties. If the parties are unable to
agree upon the selection of an appraiser within ten (10) days, then each party
shall within an additional five (5) days designate an appraiser and the
appraiser so designated shall within ten (10) additional days designate a third
appraiser. The three (3) appraisers so designated shall each render an opinion
as to the fair market rental rate and the average of the three (3)
determinations shall be the fair market rental rate. In the event of a delay in
establishing the fair market rental rate, Landlord's determination shall govern,
pending the final determination, following which any necessary adjustments shall
be made.
-28-
(v) Termination. Provided Tenant is not in default and this Lease
-----------
shall be in effect, Tenant may upon one hundred eighty (180) days prior written
notice to Landlord terminate this Lease either at the end of the eighteenth
(18th) month or thirty-sixth (36th) month of the Lease Term without payment or
penalty.
(w) Existing Lease. Upon execution of this Lease, Landlord agrees to
--------------
take over or buy out Tenant's existing space lease dated November 13, 1997 by
and between ITXC Corp. and Portfolio Investors, L.P. (successor landlord to ▇.
▇▇▇▇▇▇▇▇▇ Investment Properties, Inc.), in order that Tenant shall be released
by the Landlord thereunder as of the Commencement Date hereunder. Provided
Tenant vacates the Premises and leaves the same in the condition required under
the existing lease, Landlord shall cause Tenant to be refunded its Security
Deposit under such lease.
(x) Entire Agreement. This Lease contains and embodies the entire
----------------
agreement of the parties hereto, and no representations, inducements or
agreements, oral or otherwise, between the parties not contained in this Lease
shall be of any force or effect. This Lease may not be modified, changed or
terminated in whole or in part in any manner other than by an agreement in
writing duly signed by both parties hereto.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Lease as of the date first above written.
LANDLORD:
Witness/Attest: PEREGRINE INVESTMENT PARTNERS -I,
A PENNSYLVANIA LIMITED PARTNERSHIP
/s/ ▇▇▇▇ Favor
______________________ By: Berwind Realty Services, Inc.
Assistant Secretary
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
By: _______________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Vice Chairman
TENANT:
Witness/Attest:
ITXC CORP.
/s/▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________ ______________________________
-29-
EXHIBIT "A"
______________________________________________________________________________
DESCRIPTION OF BUILDING AND PREMISES
______________________________________________________________________________
The Building shall mean the real property, and improvements thereon,
known as ▇▇▇ ▇▇.▇▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ as shown on a certain map
entitled "Preliminary and Final Plan P.M.U.D. Subdivision of Property of the
Trustees of Princeton University" filed 12/1/82 as Map 4512, File 969 in the
County of Middlesex, State of New Jersey.
The Premises shall mean the space outlined in red on the following page
EXHIBIT "A-2"
------------
______________________________________________________________________________
EXPANSION SPACE A
______________________________________________________________________________
[Map/Graphics]
▇-▇
▇▇▇▇▇▇▇ "▇-▇"
______________________________________________________________________________
EXPANSION SPACE B
______________________________________________________________________________
[Map/Graphics]
EXHIBIT "A-4"
______________________________________________________________________________
EXPANSION SPACE C
______________________________________________________________________________
[Map/Graphics]
EXHIBIT "B"
______________________________________________________________________________
WORK LETTER
______________________________________________________________________________
Reference is made to certain lease Agreement dated February 28, 1998
(the "Lease") to which this Work Letter is attached and made a part.
1. Landlord and Tenant mutually agree the Premises shall be finished
in accordance with plans described in paragraph 2 below.
2. Tenant, at Tenant's sole cost and expense, shall cause to be
prepared complete, finished and detailed architectural and engineering
(electrical, mechanical, plumbing and structural, if any) drawings and
specifications for Tenant's partition layout, reflected ceiling plan, floor
finishes and other installations, for the work to be done by Landlord under this
Work Letter ("Tenant Improvement Work") conforming to the attached plans. All
such plans and specifications are expressly subject to Landlord's written
approval, which Landlord will not unreasonable withhold. Any written approval of
plans or specifications by Landlord shall not make Landlord responsible in any
way for the design of any installed systems and Tenant shall look solely to its
architect, engineers, designers and any of its other agents for damages
resulting from design errors or omissions. At the time Landlord approves the
plans for the Tenant Improvement Work, Landlord shall also notify Tenant of
which portions thereof, if any, shall be required to be removed by Tenant, at
Tenant's expense, at the end of the Lease Term or sooner termination of this
Lease. If Landlord shall fail to so notify Tenant, then Tenant shall be
required to remove all of the Tenant Improvement Work at the expiration or
sooner termination of this Lease.
3. Landlord agrees to demolish, at Landlord's expense, the area shown
on the attached Exhibit ▇-▇ (the "Demolition Work"). All other costs, excluding
the Demolition Work, shall be paid by Tenant.
4. Tenant may elect to either use Landlord to complete the Tenant
Improvement Work or perform the Tenant Improvement Work itself using contractors
approved by Landlord, which approval shall not be unreasonably withheld. If
Tenant elects that Landlord shall complete the Tenant Improvement Work, or any
part thereof, Tenant shall cause to be submitted to Landlord all drawings,
plans, specifications and other date required to complete the Tenant Improvement
Work or applicable portion thereof, described in paragraph 2 hereof, by February
21, 1998.
If Landlord performs the Tenant Improvement Work, Landlord shall
solicit bids from at least three (3) qualified contractors and upon receipt
shall review the bids with the Tenant, shall
B(1)
award a contract before completion of the improvements and shall hold regular
weekly meetings with the Contractor and generally supervise performance of the
contract. Landlord's fee shall be limited to five percent (5%) of the cost of
the Tenant Improvement Work.
5. If Tenant elects for Landlord to do the Tenant Improvement Work,
notwithstanding the date provided in the Lease as the Lease Commencement Date,
Tenant's obligations for the payment of rent thereunder shall not commence until
Landlord has substantially completed all work by Landlord as set forth in
paragraph 2 hereof; as evidenced by issuance of a Temporary Certificate of
Occupancy; provided, however, that if Landlord shall be delayed in substantially
completing said work as a result of:
(a) Tenant's failure to cause drawings, plans and specifications to be
furnished within the time required under paragraph 4 hereof;
(b) Tenant's submission of drawings, plans and specifications to be
furnished within the time required under paragraph 4 hereof;
(c) Tenant's request for changes in drawings, plans and specifications
subsequent to the date called for in paragraph 4 hereof; or
(d) The performance by a person, firm or corporation employed by
Tenant and/or the completion of the work of said person, firm of corporation;
then Tenant shall be liable for the payment of rent commencing on the Lease
Commencement Date and the Lease Commencement Date and Lease Expiration Date
shall not be extended; except to the extent of the number of days that
Landlord's architect determines, in its sole but reasonable judgment, that
Landlord's work would not have been completed by the Lease Commencement Date,
without the occurrence of the foregoing delays. The number of days that the
Lease Commencement Date shall be extended shall be that number of days of delay
that is determined by Landlord's architect to be due to the actions of Landlord
and Tenant shall not be responsible for the payment of rent until the Lease
Commencement Date as extended pursuant to the provisions hereof. If Tenant
undertakes completion of the Tenant Improvement Work, the Lease Commencement
Date shall be sixty (60) days after Landlord delivers the Premises to Tenant for
commencement of the Tenant Improvement Work.
6. If Tenant elects for Landlord to perform the Tenant Improvement
Work, Landlord covenants that it will use its best efforts to substantially
complete Landlord's Work under paragraph 2 herein by the Lease Commencement
Date, but it is hereby agreed that Landlord shall not be responsible for any
delay as a result of any delays resulting from those events denoted in paragraph
5 herein, or any delays beyond Landlord's control.
7. If Tenant elects for Landlord to perform the Tenant Improvement
Work, Tenant may, at its own expense, select and employ its own contractors for
finishing work such as telephone installation, carpeting, cabinetry, millwork,
decorations and installations of special equipment such as computers or telex
machines ("Tenant's Work") and such work may be
B(2)
performed prior to the date specified as the Lease Commencement Date. The
foregoing license to enter prior to the commencement of the term, however, is
conditioned upon Tenant's workmen and mechanics working in harmony and not
interfering with the labor employed by the Landlord, Landlord's mechanics or
contractors or by any other tenant or their contractors. If at any times such
entry shall cause disharmony or interference therewith, this license may be
withdrawn by Landlord upon forty-eight (48) hours written notice to Tenant. Such
entry shall be deemed to be under all of the terms, covenants, provisions and
conditions of the Lease except as to the covenant to pay rent. Landlord shall
not be liable in any way for any injury, loss or damage which may occur to any
of Tenant's decorations or installations so make prior to the commencement of
the terms of the Lease, the same being solely at Tenant's risk. Furthermore,
Tenant and its contractors shall be responsible for transportation, safekeeping
ans storage of materials and equipment used in the performance of Tenant's Work
and for the removal of waste and debris resulting from the performance of
Tenant's Work. Such waste and debris shall be deposited by Tenant and its
contractors in its own dumpsters or other containers and shall not be deposited
in those of Landlord or Landlord's contractors unless by prearrangement and in
exchange for an agreement to pay the costs of additional waste pick-ups at the
Building.
B(3)
EXHIBIT "C"
______________________________________________________________________________
MECHANICAL SPECIFICATIONS
______________________________________________________________________________
Mechanical specifications are:
Summer: 70 degrees dry bulb indoor
20% humidity indoor
88 degrees dry bulb outdoor
78 degrees wet bulb outdoor
Winter: 76 degrees dry bulb indoor
20 degrees dry bulb outdoor
EXHIBIT "D"
______________________________________________________________________________
ELECTRICAL SPECIFICATIONS
______________________________________________________________________________
The Building provides 4 ▇▇▇▇▇ per square foot for power.