Pennsylvania-Solebury Township-6805 Route 202 Lease - Jimlew Capital LLC and Tel-Save.com Inc.
FINAL
LEASE
BY AND BETWEEN
JIMLEW CAPITAL, LLC
("LANDLORD")
AND
TEL-SAVE.COM, INC.
("TENANT")
January 5, 1999
Property Address:
6805 Route 202
Solebury Township, Pennsylvania 18963
Arnold & Porter
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FINAL
LEASE
THIS LEASE is made as of this 5th day of January, 1999, by and
between JIMLEW CAPITAL, LLC, a Delaware limited liability company ("Landlord"),
and TEL-SAVE.COM, INC., a Delaware corporation ("Tenant").
WITNESSETH:
1. PREMISES AND IMPROVEMENTS.
A. Landlord does hereby lease and demise unto Tenant, and
Tenant does hereby lease from Landlord, that certain space (the "Premises") that
Tel-Save.com, Inc. is currently occupying in the building (the "Building")
located at 6802 Route 202, Solebury Township, Bucks County, Pennsylvania, on
certain land (the "Land") described in Exhibit A attached hereto and
incorporated herein (which Premises include all of the second, mezzanine and
third floors of the Building as well as a portion of the first floor of the
Building), along with the right to non-exclusive access and use of all common
areas of the Building, and the exclusive right to use or permit the use of all
or any portion of the roof of the Building for any purpose, all upon the terms
and conditions hereinafter set forth. Tenant accepts the Premises in "as is"
condition and Tenant's (or its permitted subtenant's) continued occupancy of the
Premises shall be deemed an acknowledgment that the Premises are in good and
tenantable order. Landlord warrants that it has the right to enter this Lease
for the term hereinafter provided. Landlord covenants that if Tenant pays the
Monthly Base Rent, Additional Rent and all other charges provided for herein,
performs all of its obligations provided for hereunder and observes all of the
other provisions hereof, subject to all applicable notice and cure periods,
Tenant shall at all times during the Term peaceably and quietly have, hold and
enjoy the Premises, without interruption or disturbance from Landlord, or anyone
claiming through or under Landlord, subject to the terms of this Lease.
B. On or before January 1, 2000, the Premises shall be
adjusted to total approximately 10,000 square feet, in a location which shall be
designated by Tenant and approved by Landlord in its reasonable discretion. All
other terms of this Lease shall remain in full force and effect unless otherwise
noted.
2. TERM AND COMMENCEMENT OF TERM. This Lease shall be in full
force and effect from the date first written above. The term of this Lease (the
"Term") shall commence on the Commencement Date (as hereinafter defined) and
shall expire sixty (60) months thereafter unless otherwise extended or
terminated in accordance with the terms hereof. The Commencement Date shall be
the date the Property is deeded from Tel-Save, Inc. to Landlord ("closing
date"). In the event the Commencement Date is a date other than the first day of
a calendar month, the Term shall run for the number of months set forth above
from the first day of the calendar month following the Commencement Date.
Landlord and Tenant hereby agree to execute a Declaration, substantially in the
form
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attached hereto and incorporated herein as Exhibit B, to confirm the
Commencement Date, the Term and the other matters listed thereon. Failure to
execute said Declaration shall not affect the commencement or expiration of the
Term.
3. ANNUAL BASE RENT.
A. Tenant shall pay to Landlord, at such place or to such
agent as Landlord may from time to time designate in writing, by good check or
other good funds approved by Landlord from time to time, as a minimum annual
rent for the Premises for each Lease Year, one hundred fifty thousand dollars
($150,000) (the "Annual Base Rent"), provided however if the first Lease Year
exceeds twelve (12) calendar months, then Annual Base Rent for such Lease Year
shall be increased on a proportionate basis. The Annual Base Rent shall be
payable in equal monthly installments ("Monthly Base Rent") of twelve thousand
five hundred dollars ($12,500). All installments of Monthly Base Rent shall be
payable monthly in advance, without previous notice or demand therefor, with the
first monthly installment of Annual Base Rent due and payable upon the execution
hereof and each subsequent monthly installment to be due and payable on the
first day of each and every month following the Commencement Date during the
Term. If the Commencement Date is a date other than the first day of a month,
rent for the period commencing with and including the Commencement Date and
ending on and including the day prior to the first day of the following month
shall be prorated at the rate of one-thirtieth (1/30th) of the Monthly Base Rent
per day and shall be due and payable on the Commencement Date.
B. As of January 1, 2000, the amount of the Annual Base
Rent and Monthly Base Rent shall be adjusted on a pro rata basis to reflect the
reduction in square footage of the Premises at that time. All other provisions
of Section 3(A) above shall remain in full force and effect.
4. RIGHT TO TERMINATE. Tenant shall have the right to
terminate this Lease at any time during the Term by providing to Landlord a
written notice of termination of the Lease, which notice shall set forth the
date on which the Lease shall terminate (the "Tenant Termination Date"). The
Tenant Termination Date shall be no earlier than six (6) months after the date
Tenant delivers to Landlord such notice of termination. Upon such termination,
the Lease and the liabilities and obligations of the parties shall terminate as
of the Tenant Termination Date and the Monthly Base Rent and Additional Rent
will be apportioned as of the Tenant Termination Date.
5. USE OF PREMISES.
A. The Premises shall be used and occupied by Tenant for
any purpose permitted by law, including without limitation for the purpose of
general offices and/or telecommunication services and activities which are
incidental thereto (but all subject to the restrictions described in the
Solebury Township Zoning Hearing Board
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Application of William Terry Doan dated September 17, 1984) and for no other
purpose whatsoever. The Premises shall not be used for any illegal purpose or in
violation of any regulation of any governmental body or the regulations or
directives of Landlord's insurance carriers, or in any manner to unreasonably
interfere with the quiet enjoyment of any other tenant of the Building. Tenant
will not conduct or permit to be conducted any activity, or place any equipment
in or about the Premises, which will in any way increase the rate (above the
rate as of the date of this Lease) or cause the cancellation of fire insurance
or other insurance on the Building. Tenant shall, at its expense, procure all
governmental licenses and permits required for the conduct of Tenant's business
in the Premises and shall at all times comply with the requirements of each such
license or permit.
B. Tenant agrees to maintain the Premises, the leasehold
improvements, Alterations and any electrical, heating, ventilating, air
conditioning, plumbing, mechanical or other equipment which serve exclusively
the Premises ("Equipment") in good order, repair and condition during the Term
at its sole cost and expense, and will, at the expiration or other termination
of the Term, surrender and deliver the same and all keys, locks and other
fixtures connected therewith (except only Tenant's Personal Property) in like
good order, repair and condition, as the same is now or shall be at the
Commencement Date, except as repaired, rebuilt, restored, altered or added to
pursuant to this Lease, and except for ordinary wear and tear, casualty and
condemnation. Landlord shall have no obligation to Tenant to make any repairs in
or to the Premises, the leasehold improvements or Alterations, including without
limitation any Equipment, but Landlord shall be obligated to maintain and make
all repairs or replacements to the structure of the base building, the roof and
any electrical, heating, ventilating, air conditioning, plumbing, mechanical or
other equipment which do not serve exclusively the Premises.
C. Tenant will, at its own cost, promptly comply with and
carry out all orders, requirements or conditions now or hereafter imposed upon
it by the ordinances, laws, rules, orders and/or regulations of the United
States of America, the Commonwealth of Pennsylvania, Bucks County or other
governmental entities, whether required of Landlord or otherwise, relating
directly to the Premises or the conduct of Tenant's business therein, including
without limitation the Americans With Disabilities Act ("ADA"). Notwithstanding
the foregoing, in the event construction by the Landlord of leasehold
improvements to the Premises creates a requirement (pursuant to this Lease or
applicable law) that Tenant make certain alterations to the Premises in order to
comply with the ADA ("ADA Alterations"), then, at Landlord's option, exercised
by notice from Landlord to Tenant (which notice shall include a description of
the ADA Alterations and an estimated cost thereof), (1) Landlord may elect, at
its expense, to install such ADA Alterations, in which event Landlord shall do
so with due diligence or (2) if Landlord notifies Tenant that Landlord does not
elect to pursue the foregoing option, then Tenant shall have the right to
terminate this Lease on a date which is on or before sixty (60) days after
Tenant's receipt of Landlord's notice, which right to terminate shall be
exercised by
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sending notice to Landlord of such election to terminate the Lease within thirty
(30) days after Tenant's receipt of Landlord's notice; provided, however, time
being of the essence, if Tenant does not so terminate the Lease, then Tenant
shall be deemed to have agreed, at Tenant's expense, to install such ADA
Alterations and shall do so with due diligence in accordance with the terms of
this Lease.
D. Tenant shall not place a load upon any floor of the
Premises exceeding the load per square foot which the applicable floor of the
Premises can accommodate without Landlord's prior written consent. Business
machines, mechanical equipment and materials belonging to Tenant which cause
vibration, noise, cold, heat or fumes that may be transmitted to the Building or
to any other leased space therein to such a degree as to be unreasonably
objectionable to Landlord or to any other tenant in the Building shall be
placed, maintained, isolated, stored and/or vented by Tenant at its sole expense
so as to absorb and prevent such vibration, noise, cold, heat or fumes.
E. Any and all damage or injury to the Premises (including,
but not limited to, the leasehold improvements and Alterations), the Building or
the Land caused by the Tenant, or by any employee, agent, contractor, assignee,
subtenant, invitee or customer of Tenant shall be promptly reported to Landlord
and repaired by Tenant at Tenant's sole cost to the extent the same is not
covered by insurance; provided, however, that Landlord shall have the option of
repairing any such damage, in which case Tenant shall reimburse Landlord for all
reasonable costs incurred by Landlord in respect thereof as Additional Rent
within fifteen (15) days after Tenant receives Landlord's notice of such costs.
F. Tenant agrees not to permit any offending odors, exhaust
fumes or noises to emanate outside the Premises. In the event such odors,
exhaust fumes or noises do so emanate, Landlord may take reasonable action to
prevent such emanation of odors, exhaust fumes or noises after five (5) days'
prior written notice to Tenant thereof, during which time Tenant does not cure
the same, and Tenant shall be liable for any expenses incurred by Landlord for
preventing the emanating odors, exhaust fumes or noises, as Additional Rent.
Landlord's prevention of such emanation of odors, exhaust fumes or noises shall
not operate to cure such default or to estop Landlord from pursuing any of the
remedies to which Landlord would otherwise be entitled.
G. Tenant shall not use or permit the use of any apparatus
or instrument for sound production, reproduction or transmission in such manner
that the sounds so produced, reproduced or transmitted shall be materially
audible beyond the interior of the Premises, nor shall Tenant utilize any
advertising mechanism within the Building that can be seen, heard or experienced
outside of the Premises, nor display, paint, distribute or cause to be
displayed, painted or distributed any handbill, bumper sticker or other
advertising device in any part of the common areas or the Building, including
immediately adjacent public streets and alleys. In no event shall Tenant conduct
or permit any activity that constitutes a nuisance.
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H. Tenant shall not load or permit the loading or unloading
of merchandise, supplies or other property nor ship or receive outside the
shipping and unloading doors and areas which exist as of the date of this Lease,
nor permit the parking or standing outside of said area of trucks, trailers, or
other vehicles or equipment engaged in such loading or unloading in a manner to
interfere with the use of any area of the Building, the common areas or any
streets.
I. Tenant shall not burn trash or store or permit
accumulations of any trash, garbage, rubbish or other refuse inside or outside
of the Premises except in compactors or other receptacles approved by Landlord.
Tenant shall dispose of all waste in accordance with (i) industry standards for
the various types of waste generated by Tenant's business and (ii) all
reasonable rules and regulations adopted by Landlord.
6. ALTERATIONS BY TENANT.
A. Tenant will not make or permit any improvements,
additions, alterations, fixed decorations, substitutions, replacements or
modifications, structural or otherwise, to the Premises or to the Building
("Alterations") without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed by Landlord.
B. Alterations shall be made at Tenant's sole expense.
Tenant shall obtain any necessary permits and furnish copies of the permits to
Landlord prior to commencement of any such work. All Alterations must conform to
all governmental rules and regulations (including without limitation building
codes and the Americans With Disabilities Act), insurance requirements and the
provisions of this Lease. If any mechanic's or materialman's lien is filed
against the Premises, the Building or the Land for work done or materials
furnished to Tenant, or claimed to have been done for or furnished to Tenant,
the lien shall be released and discharged by Tenant within ten (10) days
thereafter, solely at Tenant's expense, by paying off or bonding the lien.
7. TENANT'S PERSONAL PROPERTY. "Tenant's Personal Property"
shall mean all equipment, machinery, furniture, furnishings and other personal
property now or hereafter installed or placed in or on the Premises by and at
the sole expense of Tenant that can be removed without damage to the Premises or
the Building. Tenant shall remove all of Tenant's Personal Property from the
Premises at the expiration or termination of the Term of this Lease and shall
repair any damage to the Premises or the Building caused by the removal of such
Personal Property. If any taxes on Tenant's Personal Property are levied against
Landlord, or if the assessed value of the Land or the Building is increased by
the inclusion of a value placed on Tenant's Personal Property, the leasehold
improvements or any Alterations, and if Landlord pays the taxes based on any of
these items, Tenant, on demand, shall immediately reimburse Landlord therefor as
Additional Rent.
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8. UTILITIES, TAXES AND SERVICES.
A. Tenant covenants and agrees that it will furnish on a
schedule reasonably determined by Landlord all maintenance and repairs for all
common areas of the Building and the Land, which shall include, without
limitation, general upkeep, maintenance, snow removal, lawn mowing, landscaping
and parking lot maintenance. Landlord agrees to provide water, sewer,
electricity and heat (collectively, the "Utilities") to the Premises in
reasonably adequate quantities. Landlord shall pay any real estate taxes on or
prior to the due date thereof.
B. Tenant shall be responsible for the costs of all
Utilities for the Building and the Land. Except as specifically set forth herein
to the contrary, the costs of all maintenance and repairs to the Building and
the Land (including without limitation with respect to the common areas and the
parking lot), the cost of Landlord's insurance required by this Lease and any
real estate taxes shall be divided between the parties, with Tenant responsible
for eighty percent (80%) of all such costs and Landlord responsible for twenty
percent (20%) of all such costs and taxes.
C. Landlord shall exercise reasonable diligence to remedy
any interruption, curtailment, stoppage or suspension of any service or system.
If any public utility or governmental body shall require Landlord or Tenant to
restrict the consumption of any utility or reduce any service to the Premises or
the Building, Landlord and Tenant shall comply with such requirements, whether
or not the utilities and services referred to in this section are thereby
reduced or otherwise affected, without any abatement or reduction of the Monthly
Base Rent, Additional Rent or other sums payable by Tenant hereunder.
D. Tenant shall comply, at its expense, with all orders,
requirements and conditions now or hereafter imposed by any ordinances, laws,
orders and/or regulations of any governmental body having jurisdiction over the
Premises or the Building, whether required of Landlord or otherwise, regarding
the collection, sorting, separation and recycling of waste products, garbage,
refuse and trash.
E. Tenant will furnish a tractor with mowing and snow
blowing attachments and an operator for use by Landlord in the New Hope area
(without cost to Landlord) for up to 40 hours per year.
9. SIGNS. No sign, advertisement or notice shall be inscribed,
painted, affixed or displayed on the windows or exterior walls of the Premises
or on any public area of the Building or the Land without the consent of
Landlord, and then only in such places, numbers, sizes, colors and styles as are
approved by Landlord in his reasonable discretion and which conform to all
applicable laws and ordinances. Landlord agrees that Tenant, who is an affiliate
of the prior owner of the Premises and transferring ownership to Landlord in
conjunction with this Lease, may maintain the signage that Tenant currently has
in place on the Premises. Any additional permitted signs shall be installed and
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maintained by Landlord, at Tenant's expense. Notwithstanding the foregoing,
Landlord hereby provides Tenant with a license for the electrified sign by the
road adjacent to the Building which sets forth Tel-Save.com, Inc.'s name ("Road
Sign").
10. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed by
Landlord, (a) assign or otherwise transfer this Lease or any of its rights
hereunder, (b) sublet the Premises or any part thereof, or permit the use of the
Premises or any part thereof by any persons other than Tenant or its employees,
agent and invitees, or (c) permit the assignment or other transfer of this Lease
or any of Tenant's rights hereunder by operation of law. Tenant shall furnish
Landlord with such information about any proposed assignee or subtenant, its
business and its financial condition as Landlord may reasonably request. The
consent by Landlord to any assignment, transfer, or subletting to any person or
entity shall not be construed as a waiver or release of Tenant from any
provision of this Lease, unless expressly agreed to in writing by Landlord (it
being understood that Tenant shall remain primarily liable as a principal and
not as a guarantor or surety). No consent by Landlord to any such assignment,
transfer or subletting in any one instance shall constitute a waiver of the
necessity for such consent in a subsequent instance. In no event shall any
consent by Landlord be construed to permit reassignment or resubletting by a
permitted assignee or sublessee.
B. In the event that Tenant assigns or sublets all or any
portion of the remises, Tenant shall be entitled to receive any amount paid as
Monthly Base Rent and Additional Rent paid by its subtenant and shall be liable
to Landlord only for the amounts due to Landlord under this Lease.
C. Any assignment or subletting not in conformance with the
terms of this Lease shall be void. Tenant shall not collaterally assign,
mortgage, pledge, hypothecate or otherwise encumber this Lease or any of
Tenant's rights hereunder without the prior written consent of Landlord, which
consent Landlord may withhold in its reasonable discretion.
11. INSURANCE.
A. Tenant shall carry and keep in full force and effect
from and after the date hereof and at all times during the Term broad-form
commercial general liability insurance with limits of at least Three Million
Dollars ($3,000,000.00) for each occurrence. Landlord shall also maintain a
broad-form general liability policy in a comparable amount.
B. Tenant shall carry an all-risk insurance policy covering
all of Tenant's Personal Property, the leasehold improvements and the
Alterations in the
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Premises for not less than the full insurable value and replacement cost thereof
without reduction for depreciation. Landlord shall carry an all-risk insurance
policy covering all other parts of the Building and the Land for not less than
the full insurable value and replacement cost thereof without reduction for
depreciation.
C. All commercial general liability and property damage
insurance policies and any other insurance policies carried by Tenant shall (i)
be issued by insurance companies authorized to do business in the Commonwealth
of Pennsylvania reasonably satisfactory to Landlord; (ii) designate, as
additional insured, Landlord (with respect to liability insurance only); (iii)
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord may carry; (iv) provide for thirty (30) days' prior
written notice to Landlord of any cancellation or other expiration of such
policy; and (v) contain contractual liability coverage insuring performance by
Tenant of the indemnity provisions of this Lease. Tenant shall deliver to
Landlord either a copy of each such policy of insurance or a certificate
evidencing the coverages required hereunder prior to occupancy. Renewal
certificates shall be provided by Tenant on an annual basis. Neither the
issuance of any insurance policy required hereunder nor the minimum limits
specified herein with respect to Tenant's insurance coverage shall be deemed to
limit or restrict in any way Tenant's liability under this Lease.
D. Each party hereby waives any and every right or cause of
action for any and all loss of, or damage to, any of its property (whether or
not such loss or damage is caused by the fault or negligence of the other party
or anyone for whom said other party may be responsible), which loss or damage is
or would have been covered by valid and collectible fire, extended coverage,
"All Risk" or similar policies, maintained by such party or required to be
maintained by such party under this Lease, to the extent that such loss or
damage is or could have been recovered under said insurance policies. Written
notice of the terms of said mutual waivers shall be given to each insurance
carrier and said insurance policies shall be properly endorsed, if necessary, to
prevent the invalidation of said insurance coverages by reason of said waivers.
12. DAMAGE OR DESTRUCTION. If the Premises or any part thereof
shall be damaged by fire or any other cause, Tenant shall give prompt notice
thereof to Landlord. If, in the judgment of Landlord's architect, restoration of
the Premises within a period of six (6) months from the date of the damage is
possible, Landlord shall restore the Premises to the extent of leasehold
improvements, and Tenant shall make such insurance proceeds available to
Landlord in accordance with Tenant's insurance obligations set forth in Section
11. In addition, Tenant shall repair and restore, at Tenant's sole expense, all
Alterations in the Premises. If the Premises are unusable, in whole or in part,
during such restoration, the Monthly Base Rent and Additional Rent hereunder
shall be proportionately abated to the extent and for the period that the
Premises are unusable. If such damage or destruction shall result from the fault
of Tenant, its agents, servants or subtenants, Tenant shall not be entitled to
any abatement of Monthly Base Rent or Additional Rent. If restoration is not
possible, in the judgment of Landlord's architect, within the aforesaid six (6)
month period,
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Landlord shall so notify Tenant, and Landlord and Tenant shall each have the
right to terminate this Lease by giving written notice thereof to the other
party within sixty (60) days after the occurrence of such damage, in which event
this Lease and the tenancy hereunder shall terminate as of the date of such
damage or destruction and the Monthly Base Rent and Additional Rent will be
apportioned as of the date of such damage or destruction. If neither party
exercises its right of termination, the Premises shall be restored as provided
above.
13. CONDEMNATION. If the Premises or any part thereof shall be
taken or threatened to be taken by any governmental or quasi-governmental
authority pursuant to the power of eminent domain, or by deed in lieu thereof,
Tenant agrees to make no claim for compensation in the proceedings, and hereby
assigns to Landlord any rights which Tenant may have to any portion of any award
made as a result of any such taking. This Lease shall terminate as to the
portion of the Premises actually taken by the condemning authority as of the
date when title vests in such governmental or quasi-governmental authority, and
Monthly Base Rent and Additional Rent shall be ratably reduced as of such date.
The foregoing notwithstanding, as long as Landlord's award is not thereby
reduced, Tenant shall be entitled to claim, prove and receive in the
condemnation proceedings, such awards as may be allowed for its relocation
expenses and for Tenant's Personal Property, but only if such awards shall be
made by the condemning authority in addition to, and stated separately from, the
award made by it for the Land and the Building or part thereof so taken. In no
event shall Tenant be entitled to any award for the unexpired portion of the
Term. If the nature, location or extent of any proposed condemnation affecting
the Building or the Land is such that Landlord elects to demolish all or a
portion of the Building, then Landlord may terminate this Lease by giving at
least sixty (60) days written notice of termination to Tenant at any time after
such condemnation. This Lease shall terminate on the date specified in such
notice, and Monthly Base Rent and Additional Rent shall be adjusted to such
date.
14. DEFAULT.
A. Any of the following occurrences or acts shall
constitute an event of default ("Event of Default") under this Lease:
(i) If Tenant shall fail to pay any Monthly Base
Rent, any Additional Rent or any other sums under this Lease
within five (5) days after written notice thereof that the
same is due and payable.
(ii) If Tenant shall fail to observe or perform any
of the covenants, conditions and agreements of this Lease and
such failure shall continue for a period of thirty (30) days
after notice to Tenant of such failure; provided, however,
that if such failure is not reasonably capable of being cured
within such thirty (30) day period, then the period in which
Tenant may cure such failure shall be extended to a total of
up to one
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hundred twenty (120) days, provided Tenant promptly commences
and diligently pursues the cure of such failure.
(iii) If Tenant shall (i) make an assignment for the
benefit of creditors, (ii) acquiesce in a petition in any
court in any bankruptcy, reorganization, composition,
extension or insolvency proceedings, (iii) seek, consent to or
acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant and of all or any part of Tenant's
property, (iv) file a petition seeking an order for relief
under the Bankruptcy Code, as now or hereafter amended or
supplemented, or by filing any petition under any other
present or future federal, state or other statute or law for
the same or similar relief, or (v) fail to win the dismissal,
discontinuation or vacating of any involuntary bankruptcy
proceeding within thirty (30) days after such proceeding is
initiated.
B. If an Event of Default shall have occurred and be
continuing with regard to the making of any payment or the doing of any act
herein required to be made or done by Tenant, then Landlord may, but shall not
be required to, make such payment or do such act, and the making of such payment
or the doing of such act by Landlord shall not operate to cure such Event of
Default or to estop Landlord from the pursuit of any remedy to which Landlord
would otherwise be entitled. Any installment of Monthly Base Rent or Additional
Rent remaining unpaid for five (5) days after written notice thereof that the
same is due shall be subject to a late charge equal to five percent (5%) of such
installment. Any installment of Monthly Base Rent or Additional Rent not paid
within five (5) days after written notice thereof that the same is due and any
payments made by Landlord on Tenant's behalf shall bear interest until paid at
the rate that is two (2) percentage points above the prime rate published or
announced from time to time by a federally-insured financial institution
selected by Landlord (but in no event greater than the highest non-usurious rate
permitted under the laws of the Commonwealth of Pennsylvania), and such interest
shall constitute Additional Rent hereunder due and payable with the next
installment of Monthly Base Rent.
C. If an Event of Default shall have occurred, Landlord, at
its option, may terminate this Lease by written notice to Tenant, whereupon this
Lease shall end and all rights of Tenant hereunder shall expire and terminate
and everything herein required on the part of Landlord to be done and performed
shall cease, but Tenant shall remain liable as provided by law.
D. Tenant hereby consents to the exercise of personal
jurisdiction over it by any federal court with jurisdiction over cases arising
or local court located in the Commonwealth of Pennsylvania.
15. RULES AND REGULATIONS. Tenant shall at all times comply
with the rules and regulations set forth in Exhibit C attached hereto and
incorporated herein, and
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with any reasonable additions thereto and modifications thereof adopted from
time to time by Landlord of which Tenant has been given five (5) days written
notice, and each such rule or regulation shall be deemed to be a covenant of
this Lease to be performed and observed by Tenant.
16. ESTOPPEL CERTIFICATES. Tenant shall, without charge, at any
time and from time to time, within ten (10) days of request therefor by
Landlord, execute, acknowledge and deliver a written estoppel certificate
certifying, as of the date of such estoppel certificate, the following: (a)
whether or not this Lease is unmodified and in full force and effect (or if
there has been a modification, that the Lease is in full force and effect as
modified and setting forth such modifications); (b) whether or not the Term has
commenced and the full rental is now accruing; (c) the amounts of Monthly Base
Rent and Additional Rent currently due and payable by Tenant; (d) that no
Monthly Base Rent has been paid more than thirty (30) days in advance of its due
date; (e) whether or not Tenant has accepted possession of the Premises and is
currently operating its business therein; (f) that Tenant has no knowledge of
any then uncured defaults by Landlord of its obligations under this Lease (or,
if Tenant has such knowledge, specifying the same in detail); (g) the address to
which notices to Tenant should be sent; and (h) any other information reasonably
requested by Landlord.
17. HOLD-OVER. If Tenant shall not immediately surrender the
Premises on the day after the end of the Term, then Tenant shall, by virtue of
this Lease, become a tenant at sufferance at a monthly rental equal to the
Monthly Base Rent and any Additional Rent due under the terms of this Lease,
commencing said monthly tenancy with the first day next after the end of the
Term. Tenant, as a tenant at sufferance, shall be subject to all of the
conditions and covenants of this Lease (including payment of Additional Rent) as
though the tenancy had originally been a monthly tenancy. During the holdover
period, each party hereto shall give to the other at least thirty (30) days
written notice to quit the Premises, except in the event of nonpayment of
Monthly Base Rent or of Additional Rent when due, or of the breach of any other
covenant by Tenant, in which event Tenant shall not be entitled to any notice to
quit, the usual thirty (30) days notice to quit being expressly waived.
Notwithstanding the foregoing, if Landlord shall desire to regain possession of
the Premises promptly at the expiration of the Term or any extension thereof,
Landlord may re-enter and take possession of the Premises by any legal action or
process in force in the Commonwealth of Pennsylvania, and Landlord shall have
the right to recover direct or indirect damages suffered by Landlord as a result
of Tenant's failure to vacate upon such expiration.
18. RIGHTS RESERVED BY LANDLORD.
A. Landlord, its affiliate or Daniel Borislow may use the
remainder of the first floor of the Building, other than the Premises and common
areas, for its or his business purposes, with the understanding that such space
shall not be physically separated from the Premises.
<PAGE>
-12- FINAL
B. Provided Landlord does not unreasonably interfere with
the operation of Tenant's business, Landlord may enter the Premises, upon
reasonable advance notice to Tenant, to exhibit the same to prospective
purchasers, mortgagees or tenants, to inspect the Premises to verify that Tenant
is complying with all its obligations hereunder, to make repairs, alterations or
improvements to the Premises or to other space in or on the Building, to install
or service Building systems, to perform maintenance services, and to post such
notices as Landlord may reasonably desire in order to protect its rights.
Landlord and its representatives shall have the authority to take such materials
and equipment onto the Premises as may be necessary for accomplishing the
purposes set forth in this section. In the event of an emergency, Landlord shall
have access to the Premises at any time without notice.
19. MISCELLANEOUS.
A. Landlord may freely sell, assign or otherwise transfer
all or any portion of its interest under this Lease or in the Premises or the
Building or the Land, and in the event of any such transfer and assumption of
the Landlord's obligations under this Lease, the party originally executing this
Lease as Landlord, and any successor or affiliate of such party, shall be
relieved of any and all of its obligations under this Lease from and after the
date of such transfer. Tenant shall thereafter be bound to the transferee with
the same effect as though the latter had been the original Landlord hereunder,
provided that the transferee assumes and agrees to carry out all the obligations
of Landlord hereunder.
B. All notices required or desired to be given by either
party to the other shall be personally delivered or sent by recognized overnight
courier or by certified mail, return receipt requested, postage prepaid, and
shall be effective upon actual receipt as verified by written acknowledgement of
delivery in the case of personal or overnight delivery and by the return receipt
in the case of certified mail. All notices to the respective parties shall be
addressed and sent as follows:
If to Landlord: At the Building
Attention: Daniel Borislow
If to Tenant: At the Premises
Attn: Legal Dept.
and a copy to: Arnold & Porter
777 South Figueroa Street
44th Floor
Los Angeles, CA 90017-2513
Attention: Ted Johnsen, Esq.
<PAGE>
-13- FINAL
Either party may, by like written notice, designate a new address or recipient
to which such notices shall be directed.
C. All rights and remedies given herein and/or by law or in
equity to Landlord are separate, distinct and cumulative, and no one of them,
whether exercised by Landlord or not, shall be deemed to be in exclusion of any
of the others. No failure of Landlord to exercise any power given Landlord
hereunder, and no custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. Receipt by Landlord of any Monthly Base Rent, Additional
Rent or other sums payable hereunder with knowledge of the breach of any
provision hereof, or acceptance by Landlord of partial payments or partial
performance, shall not constitute a waiver of any such breach. No waiver by
Landlord of any provision hereof shall be deemed to have been made unless made
in writing, and a waiver so given on one occasion shall not be deemed a waiver
on any subsequent occasion.
D. LANDLORD AND TENANT HEREBY WAIVE ALL RIGHTS TO A TRIAL
BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS LEASE OR TENANT'S USE OR OCCUPANCY OF THE PREMISES.
THIS WAIVER OF RIGHT TO JURY TRIAL IS GIVEN KNOWINGLY AND VOLUNTARILY BY THE
FOREGOING PARTIES.
E. The submission of an unsigned copy of this Lease does
not constitute a reservation of or option for the Premises, and this Lease
becomes effective only upon execution and delivery thereof by Landlord and
Tenant and approval thereof by any current mortgagee of the Land and the
Building and any other owner, investor or lender of Landlord having the right to
approve this Lease.
F. All of the covenants, agreements, terms, conditions,
provisions and undertakings in this Lease shall inure to the benefit of, and
shall extend to and be binding upon, the parties hereto and their respective
heirs, executors, legal representatives, successors and assigns, subject to the
restrictions contained in this Lease with respect to assignment and subletting.
G. If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
<PAGE>
-14- FINAL
H. Time is of the essence of this Lease. Neither this Lease
nor a memorandum thereof shall be recorded. This Lease shall be construed under
the laws of the Commonwealth of Pennsylvania.
I. Landlord and Tenant each represent that they had no
dealings with any real estate broker, finder or other person, with respect to
this Lease in any manner. Tenant agrees to indemnify and hold harmless Landlord
against and from any claim or demand for any brokerage commission or other fees,
and all costs, claims, expenses and liabilities in connection therewith
(including, without limitation, attorneys' fees, disbursements and actual
costs), arising out of any purported or actual dealings by Tenant and any
broker.
J. Any sum owed or reimbursable by Tenant to Landlord under
this Lease (excluding Monthly Base Rent) shall be considered "Additional Rent"
payable, without diminution, set-off or deduction. Except as otherwise provided
in this Lease, all payments of Additional Rent shall be paid no later than
thirty (30) days after the date Landlord notifies Tenant of the amount thereof.
K. In the event suit shall be brought by either party
hereto against the other to enforce any of the provisions of this Lease, the
prevailing party in any such action shall be entitled to recover from the other
party all of its expenses incurred in connection with such action, including
reasonable attorneys' fees, disbursements and actual costs.
L. This Lease is being executed in conjunction with an
Agreement of Purchase and Sale of Real Property dated as of the ___ of January,
1999, under which Tenant conveys to Landlord real property that includes the
Premises that are the subject of this Lease. The effectiveness of this Lease is
conditioned upon the execution, delivery and effectiveness of and closing
pursuant to the Agreement of Purchase and Sale of Real Property. Other than the
Agreement of Purchase and Sale of Real Property, this Lease, including the
exhibits hereto, is intended by the parties as the final expression of their
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein. No course of prior dealings between the parties or their
affiliates shall be relevant or admissible to determine the meaning of any of
the terms of this Lease. No representations, understandings or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth herein. This Lease can only be modified by a writing
signed by all of the parties hereto or their duly authorized agents.
M. Landlord and Tenant shall share the use of the outdoor
parking lot adjacent to the building, based on each of their proportionate
occupancy of the Building.
<PAGE>
-15- FINAL
N. In the event Landlord does not fulfill its obligations
under this Lease, then Tenant may, but shall not be required to, take such
actions so as to satisfy such obligations, and the satisfaction of such
obligations by Tenant shall not operate to cure such default or to estop Tenant
from the pursuit of any remedy to which Tenant would otherwise be entitled.
Landlord shall, upon demand, repay Tenant such funds expended, plus interest
thereon at two (2) percentage points above the prime rate published or announced
from time to time by a federally-insured financial institution selected by
Tenant (but in no event greater than the highest non-usurious rate permitted
under the laws of the Commonwealth of Pennsylvania). In the event Landlord does
not repay Tenant such funds and interest within ten (10) days of demand
therefor, Tenant shall have the right to offset such funds and interest against
rent due hereunder.
[Signatures follow on the next page]
<PAGE>
-16- FINAL
IN WITNESS WHEREOF, the parties hereto have executed this
Lease as of the day and year first above written.
WITNESS: LANDLORD:
JIMLEW CAPITAL, LLC,
a Delaware limited liability company
____________________ By: _____________________[SEAL]
Name
Title
WITNESS: TENANT:
TEL-SAVE.COM, INC.,
a Delaware corporation
____________________ By: _____________________[SEAL]
Name
Title
<PAGE>
FINAL
EXHIBITS
Exhibit A: Legal Description of the Land
Exhibit B: Declaration
Exhibit C: Rules and Regulations
<PAGE>
FINAL
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
ALL THAT CERTAIN parcel of land, Situate in the Township of Solebury, County of
Bucks and Commonwealth of Pennsylvania, bounded and described according to Plan
of Survey made for Magill Brothers, by George Rice, Registered Surveyor of
Solebury, Pennsylvania, dated December 31, 1974, and revised December 19, 1977,
as follows:
BEGINNING at a point on the Westerly side of L.R. 1086 Spur, said point being a
corner in line of lands now or late of J.D. Materials Co., Inc., on the Solebury
Township - New Hope Borough line; thence along said lands now or late of J.D.
Materials Co., Inc., on the Solebury Township - New Hope Borough line, South
eighty-one degrees thirty minutes thirty-eight seconds West, three hundred
ninety-three and twenty-one one-hundredths feet to a point, a corner in line of
lands of The Delaware River Joint Toll Bridge Commission; thence along said
lands of The Delaware River Joint Toll Bridge Commission, the four following
courses and distances: (1) North seventeen degrees sixteen minutes eleven
seconds West, four hundred seventy-seven and fifty one-hundredths feet to a
point, a corner; thence (2) North thirty-nine degrees two minutes twenty-five
seconds East, ninety and fourteen one-hundredths feet to a point, a corner (3)
North seventeen degrees sixteen minutes eleven seconds West fifty and no
one-hundredths feet to a point, a corner; and (4) North fifty-one degrees
thirty-three minutes ten seconds West, two hundred twenty-one and ninety-three
one hundredths feet to a point, a corner of lands now or late of Bernard and
Betty J. Rozansky; thence along said lands now or late of Bernard and Betty J.
Rozansky, North eighty-two degrees twenty minutes nineteen seconds East, eight
hundred sixty-two and thirty-three one-hundredths feet to a point, a corner on
the Westerly side of the aforesaid L.R. 1086 Spur; thence along the said
Westerly side of L.R. 1086 Spur; along a curve to the left, having a radius of
one thousand, two hundred five and ninety-two one-hundredths feet, for the arc
length of forty and four one-hundredths feet, to a point of tangency, thence
still along the same, South thirteen degrees, thirty-nine minutes thirty-nine
seconds West, six hundred fifty-four and ten one-hundredths feet to a point of
curvature; thence along a curve to the right, having a radius of one-thousand,
eighty-five and ninety-two one-hundredths feet, for the arc length of
ninety-eight and eighty-one one-hundredths feet, to the point and place of
beginning.
CONTAINING 10.06 ACRES OF LAND
COUNTY TAX PARCEL NO.: 41-28-67
BEING THE SAME PREMISES which The Fidelity Bank, Beverley W. Magill and
Frederick B. Williamson, III, trustees for Marital Trust under the Will of
Winfield A. Magill, deceased and Thomas H. Magill and Joyce W. Magill, husband
and wife by Deed dated October 9, 1984, and recorded October 31, 1984, in Land
Record Book 2582 Page
<PAGE>
FINAL
653, Bucks County records, granted and conveyed unto Omni Contractors a
Pennsylvania General Partnership, in fee.
TOGETHER with all and singular the buildings and improvements, ways, streets,
alleys, driveways, passages, waters, water-courses, rights, liberties,
privileges, hereditaments and appurtenances, whatsoever unto the hereby granted
premises belonging, or in anywise appertaining, and the reversions and
remainders, rents, issues, and profits thereof; and all the estate, right,
title, interest, property, claim and demand whatsoever of the said grantor, as
well at law as in equity, of, in and to the same.
<PAGE>
FINAL
EXHIBIT B
DECLARATION
Attached to and made part of the Lease dated the ___ day of
January, 1999, entered into by and between JIMLEW CAPITAL, LLC, a Delaware
limited liability company, as Landlord, and TEL-SAVE.COM, INC., a Delaware
corporation, as Tenant.
Landlord and Tenant do hereby declare that (a) the
Commencement Date is hereby established to be _________________________, 199__
and (b) the Term of the Lease shall terminate on _______________________, 200__
unless terminated earlier as provided therein. The Lease is in full force and
effect as of the date hereof, Landlord has fulfilled all of its obligations
under the Lease required to be fulfilled by Landlord on or prior to such date,
and Tenant has no right of set-off against any rentals as of the date hereof.
WITNESS: LANDLORD:
JIMLEW CAPITAL, LLC,
a Delaware limited liability company
____________________ _____________________ [SEAL]
Name
Title
WITNESS: TENANT:
TEL-SAVE.COM, INC.,
a Delaware corporation
____________________ By: _____________________[SEAL]
Name
Title
DATED: ____________________, 199__.
<PAGE>
FINAL
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been formulated for the
safety and well-being of all the tenants of the Building.
Subject to the terms of the Lease, Landlord reserves the right to
rescind, amend, alter or waive any of the following rules and regulations at any
time when, in its sole judgment, it deems it necessary, desirable or proper for
the best interests of the Building and for the best interests of the tenants.
1. The common areas in the Building shall not be obstructed by any
tenant or used for any purpose other than ingress and egress to and from the
tenant's demised premises. Landlord shall have the right to control and operate
the common areas, and the facilities furnished for the common use of the tenants
in such manner as Landlord, in its sole discretion, deems best for the benefit
of the tenants generally. No tenant shall permit the visit to its demised
premises of persons in such number or under such conditions as to interfere with
the use and enjoyment by other tenants of the common areas. No tenant shall
place any mats, trash or other objects in the common areas.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No drapes, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of a
tenant's demised premises, without Landlord's consent. The Landlord hereby
consents to any drapes, blinds, shades or screens in the Premises as of the date
of this Lease.
3. The water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were constructed,
and no sweepings, rubbish, rags or other substances shall be thrown or placed
therein.
4. There shall be no marking, painting, drilling into or other
form of defacing or damage of any part of the shell or core of the Building.
5. No bicycles, vehicles or animals, birds or pets of any kind
(other than seeing-eye dogs assisting disabled persons) shall be brought into or
kept in or about a tenant's demised premises. No cooking shall be done or
permitted by any tenant on its demised premises, except that, with Landlord's
prior written approval, a tenant may install and operate for the convenience of
its employees a lounge or coffee room with stove, sink, refrigerator, microwave
oven and/or coffee makers. No tenant shall cause or permit any unusual or
objectionable odors to originate from its demised premises. Each tenant shall be
<PAGE>
FINAL
obligated to maintain sanitary conditions in any area approved by the Landlord
for food and beverage preparation and consumption.
6. Except as permitted by this Lease, no space in or about the
building shall be used by any tenant for the manufacture of merchandise, goods
or property of any kind nor, in the case of non-retail tenants, for the storage
or sale or auction of the same.
7. No flammable, combustible, explosive, hazardous or toxic fluid,
chemical or substance or firearms shall be brought into or generated or kept
upon a tenant's demised premises, except for those fluids, chemicals or
substances which are used in Tenant's business pursuant to the permitted uses of
the Lease so long as such fluids, chemicals and substances are stored, used and
disposed of in accordance with all applicable laws.
8. Landlord reserves the right to exclude from the Building at all
times, any person who is not known or does not properly identify himself to the
Landlord or its agents. Each tenant shall be responsible for all persons for
whom it authorizes entry into the Building, and shall be liable to Landlord for
all acts of such persons.
9. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
10. No space leased to any tenant shall be used, or permitted to be
used, for lodging or sleeping or for any immoral or illegal purpose.
11. Employees of Landlord other than those expressly authorized are
prohibited from receiving any packages or other articles delivered to the
Building for any tenant and, should any such employee receive any such package
or article, he or she in so doing shall be the agent of such tenant and not
Landlord.
12. Tenant shall not affix any floor covering to any floor of the
demised premises or Building with adhesive or glue of any kind without obtaining
Landlord's prior written consent.