Lease Agreement, dated August 28, 2017, by and between Factor Systems, Inc. (d/b/a Billtrust) and Lenox Drive Office Park LLC

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(b)          any hypothecation, pledge, or collateral assignment of this Lease;

(c)          any involuntary assignment or transfer of this Lease in connection with bankruptcy, insolvency, receivership, or similar proceeding;

(d)          any assignment, transfer, disposition, sale or acquisition of a controlling interest in Tenant to or by any person, entity, or group of related persons or affiliated entities, whether in a single transaction or in a series of related or unrelated transactions; or

(e)          any issuance of an interest or interests in Tenant (whether stock, partnership interests, or otherwise) to any person, entity, or group of related persons or affiliated entities, whether in a single transaction or in a series of related or unrelated transactions, which results in such person, entity, or group holding a controlling interest in Tenant. For purposes of the immediately foregoing, a “controlling interest” of Tenant means 25% or more of the aggregate issued and outstanding equitable interests (whether stock, partnership interests, membership interests or otherwise) of Tenant or the ability to control the management of Tenant.

16.9        Assumption. It is a further condition to the effectiveness of any assignment otherwise complying with this Article 16 that the assignee execute, acknowledge, and deliver to Landlord an agreement in form and substance reasonably satisfactory to Landlord whereby the assignee assumes all obligations of Tenant under this Lease and agrees that the provisions of this Article 16 will continue to be binding upon it with respect to all future assignments and deemed assignments of this Lease.

16.10      Tenant Remains Liable. Notwithstanding whether notice is given to Landlord or the consent or approval of Landlord is requested or obtained, no assignment of this Lease or any sublease of all or any portion of the Premises will release or discharge Tenant or any successor tenant thereto from any liability under this Lease and such party(ies) will continue to remain primarily liable under this Lease for the payment of all Basic Rent and Additional Rent and for the performance of all other obligations to be performed by Tenant under this Lease. Following an Event of a Default by any Tenant or a sublessee in the performance of any of the terms hereof, Landlord may proceed directly against Tenant and/or any successor tenant thereto without the necessity of commencing or exhausting any or all remedies against Tenant. In the event of an assignment of this Lease by Tenant, Tenant shall deliver to Landlord a separate and independent agreement in form reasonably satisfactory to both Landlord and Tenant which confirms that Tenant is unconditionally bound by the provisions of this Section 16.10 and expressly provides that the liabilities of Tenant under this Lease shall continue and remain in full force and effect as if this Lease has not been terminated notwithstanding that this Lease is (i) disaffirmed, rejected or terminated in, or by reason of, any proceeding of the types described in Sections 19.1(d), (e) or (f) of this Lease, or in any similar proceeding respecting the then Tenant under this Lease, or (ii) terminated by reason of an Event of Default.

16.11     Permits and Approvals. Tenant will be responsible for obtaining all required permits and approvals in connection with any assignment of this Lease or any subletting of the Premises. Tenant shall deliver copies of all such permits and approvals to Landlord prior to the commencement of any construction work, if construction work is to be done in connection with such sublease or assignment. Tenant shall, upon demand, reimburse Landlord for all reasonable, out-of-pocket attorneys’ fees and disbursements (not to exceed $2,000.00), incurred by Landlord in reviewing any proposed assignment of this Lease or any proposed sublease of the Premises.

16.12     Deadline for Consummation of Assignment or Sublease. If Landlord consents to any proposed assignment or sublease and Tenant fails to consummate such assignment or sublease within one hundred twenty (120) days after Landlord gives such consent, Tenant will be required to again comply with all of the provisions this Article 16 before assigning this Lease or subletting any part of the Premises. Within ten (10) days after the execution of any sublease or assignment, Tenant shall deliver to Landlord a fully-executed copy of such sublease or assignment.

16.13      No Liability. Under no circumstances will Landlord be liable to Tenant for any failure or refusal to grant its consent to any proposed assignment or sublease. Tenant shall not claim any money damages by way of setoff, counterclaim or defense, based on any claim that Landlord unreasonably withheld its consent to any proposed sublease or assignment. Tenant’s sole and exclusive remedy will be an action for specific performance, injunction or declaratory judgment.

16.14      Indemnification. If Landlord rejects any proposed assignment or sublease, Tenant shall defend, indemnify, and hold Landlord harmless from and against all liability, damages, costs, fees, expenses, penalties, and charges (including, but not limited to, reasonable attorneys’ fees and disbursements) arising out of any claims made by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease.

16.15    (a)           Bankruptcy. Notwithstanding anything to the contrary contained in this Lease, if this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, all consideration payable in connection with such assignment shall be paid to Landlord and will be and remain the exclusive property of Landlord to the extent of any amount due and owing to Landlord as of the date of the assignment, and will not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. All consideration constituting Landlord’s property under the preceding sentence not paid to Landlord shall be held in trust for the benefit of Landlord and be promptly paid to or turned over to Landlord.

(b)          Adequate Assurance. If Tenant proposes to assign this Lease pursuant to the provisions of the Bankruptcy Code to any person or entity who has made a bona fide offer to accept an assignment of this Lease on terms acceptable to Tenant, Tenant shall deliver to Landlord written notice of such proposed assignment setting forth (i) the name and address of such person or entity, (ii) all of the terms and conditions of such offer, and (iii) the adequate assurance to be provided by Tenant to assure such person’s or entity’s future performance under this Lease, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code, or any such successor or substitute legislation or rule thereto, shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant. For the purposes of clause (iii) above, “adequate assurance” means the deposit of cash security in an amount equal to the Basic Rent and Additional Rent payable under this Lease for the next succeeding twelve (12) months (which annual Additional Rent shall be reasonably estimated by Landlord). Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code will be deemed without further act or deed to have assumed all of the obligations arising under this Lease on or after the date of such assignment. Any such assignee shall, upon demand, execute and deliver to Landlord an instrument confirming such assumption.

16.16     Landlord’s Right to Negotiate. After Landlord recaptures the Premises, Landlord will have the right to (i) negotiate directly with any proposed subtenant or assignee of Tenant, and (ii) enter into a direct lease with any proposed subtenant or assignee of Tenant for the Premises on such terms and conditions as are mutually acceptable to Landlord and the proposed subtenant or assignee.

17.1        Notice. If any part of the Premises is damaged, Tenant shall promptly notify Landlord in writing of such circumstance.

17.2        Premises Not Untenantable. If the Premises are damaged, but no portion thereof is rendered untenantable, and this Lease is not terminated pursuant to Sections 17.4, Landlord shall, at its own expense, cause the Restoration to be completed as soon as reasonably practicable and, provided such Restoration does not unreasonably interfere with Tenant’s operation of its business in the Premises, the Basic Rent and Additional Rent will not abate.

17.3       Premises Untenantable. If the Premises are damaged and rendered partially or wholly untenantable, and this Lease is not terminated pursuant to Section 17.4, Landlord shall, at its own expense, cause the Restoration to be completed as soon as reasonably practicable, and the Basic Rent and Additional Rent will be equitably abated.

17.4       Termination.

(a)          If the Premises are damaged and, in the judgment of an independent, third party engineer selected by Landlord and reasonably approved by Tenant (the “Independent Engineer”), Restoration cannot be completed within two hundred seventy (270) days from the date of such damage, or if the Premises are damaged and rendered untenantable during the final year of the Term, Landlord and Tenant will each have the right to terminate this Lease by delivering a written termination notice to the other party within sixty (60) days after the occurrence of such casualty (or, with respect to Tenant, within sixty (60) days after Landlord notifies Tenant that it will take more than two hundred seventy (270) days to complete Restoration). Notwithstanding the foregoing, if Landlord terminates this Lease as a result of a casualty in the final year of the Term, Tenant will have the right to nullify such termination by exercising its renewal rights pursuant to Section 31.1.

(c)           If either Landlord or Tenant exercises its right to terminate this Lease pursuant to this Section 17.4, all Basic Rent and Additional Rent will be prorated as of the date of such casualty.

17.5       Restoration. If the Net Award payable to Landlord, or the Net Award that would be payable to Landlord if Landlord maintained the insurance required by this Lease, plus (in either case) the amount of the Landlord’s deductible, is not adequate to complete Restoration, Landlord will have the right to terminate this Lease by delivering a written termination notice to Tenant within ninety (90) days after the occurrence of such casualty.

17.6       Proration of Rent. If either Landlord or Tenant exercises its right to terminate this Lease pursuant to this Article 17, all Basic Rent and Additional Rent will be prorated as of the date of such casualty.

18.1        Taking. Tenant hereby irrevocably assigns to Landlord any award or payment to which Tenant becomes entitled by reason of any Taking of all or any part of the Premises, except that Tenant will be entitled to any award or payment for (a) the Taking of Tenant’s trade fixtures or personal property, (b) the Taking of any leasehold improvements in the Premises paid for by Tenant, and (c) relocation or moving expenses, provided the amount of the Net Award payable to Landlord with respect to the fee interest is not diminished. All amounts payable pursuant to any agreement with any condemning authority made in settlement of or under threat of any condemnation or other eminent domain proceeding will be deemed to be an award made in such proceeding. Tenant agrees that this Lease will control the rights of Landlord and Tenant with respect to any Net Award and any contrary provision of any present or future law is hereby waived.

18.2        Entire Premises. In the event of a Taking of the entire Premises, the Term will terminate as of the date when possession is taken by the condemning authority and all Basic Rent and Additional Rent will be prorated as of such date.

18.3        Portion of Premises. In the event of a Taking of thirty percent (30%) or more of the Premises, if Tenant determines in good faith that the Taking will have a permanent, material, adverse effect on Tenant’s operations at the Premises, Tenant may, at any time either prior to or within sixty (60) days after the date the condemning authority takes possession of the applicable portion of the Premises, elect to terminate this Lease by delivering a written termination notice to Landlord. If Tenant fails to exercise such termination option, or if such option does not apply to a Taking, (i) Landlord shall, subject to Section 18.4, cause Restoration to be completed as soon as reasonably practicable, but in no event later than ninety (90) days after the date the condemning authority takes possession of the applicable portion of the Premises (subject to an extension for Excusable Delays, not to exceed sixty (60) days), and (ii) the Basic Rent and Additional Rent payable will be equitably prorated during the time Landlord is performing any Restoration, based upon the rentable square footage of the Premises that is untenantable at such time; and thereafter based upon the rentable square footage of the Premises actually taken.

18.4        Restoration. If the Net Award is inadequate to complete Restoration, then Landlord may elect either to complete such Restoration or terminate this Lease by delivering a written termination notice to Tenant within sixty (60) days after the date the amount of the Net Award is ascertained. If Landlord terminates this Lease pursuant to this Section 18.4, all Basic Rent and Additional Rent will be apportioned as of the date the condemning authority takes possession of the Premises.

19.1       Events of Default. Any of the following occurrences, conditions or acts are an “Event of Default” under this Lease:

(a)          Tenant fails to pay any Basic Rent, Additional Rent or other amount payable by Tenant hereunder when due, and such failure continues for five (5) days after written notice of such default is delivered to Tenant.

(b)          Tenant files a petition in bankruptcy pursuant to the Bankruptcy Code or under any similar federal or state law, or is adjudicated a bankrupt or becomes insolvent, or commits any act of bankruptcy as defined in any such law, or takes any action in furtherance of any of the foregoing.

(c)          A petition or answer is filed proposing the adjudication of Tenant as a bankrupt pursuant to the Bankruptcy Code or any similar federal or state law, and (i) Tenant consents to the filing thereof, or (ii) such petition or answer is not discharged within ninety (90) days after the filing thereof.

(d)          A receiver, trustee or liquidator (or other similar official) of Tenant or of all or substantially all of its business or assets or of the estate or interest of Tenant in the Premises is appointed and not be discharged within ninety (90) days thereafter or if Tenant consents to or acquiesces in such appointment.

(e)          The estate or interest of Tenant in the Premises is levied upon or attached in any proceeding and such process is not vacated or discharged within ninety (90) days after such levy or attachment.

(f)           Tenant uses or permits the use of the Premises for any purpose other than expressly specified in Section 8.1.

(g)          Tenant fails to discharge any Lien within the time period set forth in Article 12 and such failure continues for ten (10) days after Landlord delivers notice thereof to Tenant.

(h)          Tenant fails to maintain the insurance required by Article 14, or Tenant fails to deliver to Landlord the insurance certificates required by Article 14 within the time periods set forth in Section 14.1(c), and such failure to deliver the certificate continues for ten (10) days after Landlord delivers notice thereof to Tenant.

(i)           Tenant fails to deliver to Landlord the estoppel certificate required by Article 15 within the time period set forth therein, and such failure to deliver the certificate continues for two (2) days after Landlord delivers notice thereof to Tenant.

(j)           Tenant assigns this Lease or sublets all or any portion of the Premises without complying with all the provisions of Article 16, and such failure to deliver the certificate continues for ten (10) days after Landlord delivers notice thereof to Tenant.

(k)          Tenant fails to deliver to Landlord the subordination agreement required by Section 23.1 within the time period set forth therein, and such failure to deliver the certificate continues for two (2) days after Landlord delivers notice thereof to Tenant.

(l)           Tenant defaults in the observance or performance of any provision of this Lease other than those provisions contemplated by clauses (a) through (k) of this Section 19.1 and such default continues for thirty (30) days after Landlord gives notice to Tenant specifying such default and demanding that the same be cured, or within such longer period as may be necessary due to circumstances beyond Tenant’s control not to exceed ninety (90) days, as long as Tenant begins to cure such default within thirty (30) days and thereafter diligently prosecutes such cure to completion.

20.2       Remedies.  (a)  Upon any termination of this Lease pursuant to this Article 20, or as required or permitted by law, Tenant shall immediately quit and surrender the Premises to Landlord, and Landlord may, enter upon, re-enter, possess and repossess the same, but only through summary proceedings if Tenant remains in possession of the Premises, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event Tenant and no person claiming through or under Tenant by virtue of any law or an order of any court will be entitled to possession or to remain in possession of the Premises but shall immediately quit and surrender the Premises.

(b)          If Landlord terminates this Lease pursuant to this Article 20, Tenant will remain liable for (i) the sum of (x) all Basic Rent, Additional Rent and other amounts payable by Tenant hereunder until the date this Lease would have expired had such termination not occurred, and (y) all reasonable expenses incurred by Landlord in re-entering the Premises, repossessing the same, making good any default of Tenant, painting, altering or dividing the Premises, putting the same in proper repair, reletting the same (including any and all reasonable attorneys’ fees and disbursements and reasonable brokerage fees incurred in so doing), removing and storing any property left in the Premises following such termination; less (ii) the net proceeds of any reletting actually received by Landlord. To the extent Landlord incurs any expenses in connection with re-letting the Premises (collectively, “Re-letting Costs”), all such costs shall be amortized over the term or terms of the new lease or leases, and only the portion of such Re-letting Costs applicable to that portion of the term or terms of the new lease or leases which “overlaps” with the period of time otherwise constituting the remainder of the Term, as such Term may be extended pursuant to Article 31 of this Lease, shall be chargeable to Tenant as damages hereunder (for example, if two (2) years remain on the Term when Landlord terminates the Lease, and Landlord re-lets the Premises for a term of ten (10) years, then Tenant shall only be responsible for 2/10^ths of the Re-letting Costs. Tenant agrees to pay to Landlord the difference between items (i) and (ii) above with respect to each month during the period that would have constituted the balance of the Term, at the end of such month. Any suit brought by Landlord to enforce collection of such difference for any one month will not prejudice Landlord’s right to enforce the collection of any difference for any subsequent month. Tenant’s liability under this Section 20.2(b) will survive the institution of summary proceedings and the issuance of any warrant thereunder.

(c)          If Landlord terminates this Lease pursuant to Article 20, Landlord will have the right, to require Tenant to pay to Landlord, on demand, as liquidated and agreed final damages in lieu of Tenant’s liability under Section 20.2(b), an amount equal to the difference (discounted to the date of such demand at an annual rate of interest equal to the then-current yield on actively traded United States Treasury bills or United States Treasury notes having a maturity substantially comparable to the remaining term of this Lease as of the date of such termination, as published in the Federal Reserve Statistical Release for the week before the date of such termination) between (i) the Basic Rent and Additional Rent, computed on the basis of the then current annual rate of Basic Rent and Additional Rent and all fixed and determinable increases in Basic Rent, which would have been payable from the date of such demand to the date when this Lease would have expired if it had not been terminated, and (ii) the then fair rental value of the Premises for the same period less the costs of reletting expenses, including the cost to paint, alter or divide the space, put the same in proper repair, reasonable attorneys’ fees and disbursements, reasonable brokerage fees. Upon payment of such liquidated and agreed final damages, Tenant will be released from all further liability under this Lease with respect to the period after the date of such demand, except for those obligations that expressly survive the termination of this Lease. If, after the Event of Default giving rise to the termination of this Lease, but before presentation of proof of such liquidated damages, the Premises, or any part thereof, are relet by Landlord for a term of one year or more, the amount of rent reserved upon such reletting will be deemed to be the fair rental value for the part of the Premises relet during the term of such reletting.

20.3        Liquidated Damages. Nothing herein contained will limit or prejudice the right of Landlord, in any bankruptcy or insolvency proceeding, to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount is greater or less than the excess referred to above. Notwithstanding anything to the contrary in this Lease, but except as Set forth in Section 24.3, under no circumstances shall Tenant be liable for consequential or speculative damages. In the case of an Event of Default, Landlord will use commercially reasonable efforts to re-let the Premises and otherwise mitigate its damages.

20.4        Indemnity Survives. Nothing herein will be deemed to affect Landlord’s indemnification rights under Section 14.3.

20.5        Attorneys’ Fees. If either party brings an action or other proceeding to enforce or interpret any of the terms of this Lease, the non-prevailing party shall pay the reasonable attorneys’ fees and costs incurred by the prevailing party in such action or proceeding.

20.6        Landlord’s Cure Rights. If Tenant is in default of any of its obligations under this Lease, Landlord may, without waiving such default, perform such obligations for the account and at the expense of Tenant (a) immediately and without notice in the case of an Emergency or with respect to the imposition of any Lien against all or any portion of the Premises, and (b) in any other case, if such default continues after thirty (30) days from the date Landlord delivers a written notice to Tenant stating Landlord’s intention to perform such obligation for the account and at the expense of Tenant. Upon Landlord’s demand, Tenant shall pay to Landlord all reasonable, out of pocket costs and expenses incurred by Landlord in performing any obligations of Tenant under this Lease.

20.7        Remedies Not Exclusive; No Waiver. Except as otherwise provided in this Article 20, no remedy or election hereunder will be deemed exclusive but will, wherever possible, be cumulative with all other remedies herein provided or permitted at law or in equity. No provision of this Lease will be deemed to have been waived by Landlord or Tenant unless a written waiver from Landlord or Tenant has first been obtained and, without limiting the generality of the foregoing, no acceptance of Basic Rent or Additional Rent subsequent to any default and no condoning, excusing or overlooking by Landlord or Tenant on previous occasions of any default or any earlier written waiver will be taken to operate as a waiver by Landlord or Tenant or in any way defeat or otherwise affect the rights and remedies of Landlord or Tenant hereunder.

21.1        Landlord’s Access.  (a)  Landlord and Landlord’s agents and representatives and parties designated by Landlord as having an interest in the Property will have the right, at all reasonable hours, and in the presence of a representative of Tenant, to enter the Premises to: (1) examine the Premises; (2) make repairs and alterations that, in Landlord’s reasonable judgment, are necessary for the safety and preservation of the Premises and the Building; (3) erect, maintain, repair or replace wires, cables, ducts, pipes, conduits, vents or plumbing equipment; (4) show the Premises to prospective new tenants during the last eighteen (18) months of the Term; and (5) show the Premises to any mortgagees or prospective purchasers of the Premises. Landlord shall give Tenant one (1) business days prior written notice before entering the Premises for any reason (except in the event of an Emergency when no prior notice is required to be given as provided herein). Upon Tenant’s request, Landlord or its agents shall be accompanied by a representative of Tenant. Notwithstanding anything contained herein, Landlord shall not be permitted to enter any portion(s) of the Premises if Legal Requirements prohibit Landlord’s access to such portion of the Premises due to confidentiality restrictions. Landlord agrees that its employees, representatives or agents shall not enter any “Tissue Recovery Area” or other sterile areas within the Premises without wearing protective garments as issued by or approved by Tenant.

(b)          Landlord will have the right, at any time, to (1) change the arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets or any other public parts of the Building; (2) make repairs, alterations or improvements to any portion of the Building; (3) designate portions of the Building and the Property as Common Areas and change such designations from time to time in Landlord’s sole discretion, (4) change the name and/or number of the Building; and (5) change lawns, sidewalks, driveways, parking areas and/or streets adjacent to or around the Building.

21.2        Emergency Access. Landlord may enter upon the Premises at any time in case of emergency without prior notice to Tenant but in such case Landlord will provide Tenant with notice of such entry as soon as possible thereafter.

21.3        No Liability. Landlord, in exercising any of its rights under this Article 21, will not be deemed guilty of an eviction, partial eviction, constructive eviction or disturbance of Tenant’s use or possession of the Premises and will not be liable to Tenant for same.

21.4        Minimum Inconvenience. All work performed by Landlord in the Premises pursuant to this Article 21 shall be performed with as little inconvenience to Tenant’s business as is reasonably possible.

21.5        Locks. Tenant shall not change any locks or install any additional locks on doors entering the Premises without immediately giving to Landlord a key to such lock. If, in an emergency, Landlord is unable to gain entry to the Premises by the unlocking the entry doors thereto, Landlord will have the right to forcibly enter the Premises and, in such event, Landlord

21.6        Reservation of Rights. Landlord reserves the right to make changes, alterations, additions (including separate structures), improvements, repairs and replacements to (i) those portions of the Premises that Landlord is obligated to maintain and repair pursuant to Section 7.2, (ii) the Building and the Property, and (iii) fixtures and equipment in the Building, in each case as Landlord reasonably deems necessary; provided, however, that Landlord shall not unreasonably obstruct access to the Premises or unreasonably interfere with Tenant’s use of the Premises. Nothing contained in this Article 21 will be deemed to relieve Tenant of any obligation to make any repair, replacement or improvement or comply with any applicable Legal Requirements.

23.1       Subordination. This Lease and the term and estate hereby granted are subject and subordinate to the lien of each mortgage which now or at any time hereafter affects all or any portion of the Premises or Landlord’s interest therein and to all ground or master leases which now or at any time hereafter affect all or any portion of the Property (any such mortgage, ground lease or master lease being referred to herein as an “Underlying Encumbrance”). The subordination of this Lease and the term and estate hereby granted to an Underlying Encumbrance will be self-operative and no further instrument will be required to effect any such subordination; provided, however, that, upon not less than ten (10) days’ prior notice by Landlord, Tenant shall execute, acknowledge and deliver to Landlord any and all reasonable instruments that may be necessary or proper to effect such subordination or to confirm or evidence the same. Landlord shall use commercially reasonable efforts to obtain a subordination, non-disturbance and attornment agreement from its current Lender on such Lender’s standard form of subordination, non-disturbance and attornment agreement.

23.2       Conveyance by Landlord. If all or any portion of Landlord’s estate in the Property is sold or conveyed to any person, firm or corporation upon the exercise of any remedy provided in any mortgage or by law or equity, such person, firm or corporation (a) will not be liable for any act or omission of Landlord under this Lease occurring prior to such sale or conveyance, (b) will not be subject to any offset, defense or counterclaim accruing prior to such sale or conveyance, (c) will not be bound by any payment prior to such sale or conveyance of Basic Rent, Additional Rent or other payments for more than one month in advance (except for any unapplied security deposit), and (d) will be liable for the keeping, observance and performance of the other covenants, agreements, terms, provisions and conditions to be kept, observed and performed by Landlord under this Lease only during the period such person, firm or corporation holds such interest.

23.3        Cure Rights. In the event of a casualty or an act or omission by Landlord that gives Tenant the right to terminate this Lease or to claim a partial or total eviction, Tenant shall not exercise any such right or make any such claim until (i) Tenant has delivered written notice of such casualty, act or omission to the holder of each Underlying Encumbrance, and (ii) the holder of each Underlying Encumbrance has had a reasonable opportunity to, with reasonable diligence, remedy such casualty act or omission. Landlord shall provide Tenant with the name and current address of the holder of each Underlying Encumbrance.

24.1        Surrender. Upon the expiration or earlier termination of this Lease, Tenant shall surrender the Premises to Landlord broom clean in the condition required to be maintained under Article 7. Any personal property remaining in the Premises after the expiration or earlier termination of this Lease will be deemed to have been abandoned by Tenant and Landlord will have the right to retain such property as its own or dispose of such property at Tenant’s sole cost and expense.

24.2        Landlord’s Early Entry. If, at any time during the last six (6) months of the Term, Tenant is not occupying any part of the Premises in connection with the conduct of its business, Landlord may elect, at its option, to enter such part of the Premises to alter and/or redecorate the same. Tenant hereby irrevocably grants to Landlord a license to enter such part of the Premises to perform such alterations and/or redecorations. Landlord’s exercise of its rights under this Section 24.2 will not relieve Tenant from any of its obligation under this Lease.

24.3        Holding Over. If Tenant, or any assignee or subtenant of Tenant, holds over possession of the Premises beyond the expiration or earlier termination of this Lease, such holding over will not be deemed to extend the Term or renew this Lease but such holding over will continue upon the terms, covenants and conditions of this Lease except that the charge for use and occupancy of the Premises for each calendar month or portion thereof that Tenant or such assignee or subtenant holds over will be a liquidated sum equal to one and one-half (11/2) times the Basic Rent and Additional Rent payable for the month immediately preceding the expiration or earlier termination of this Lease for the first six (6) months of such holding over, and thereafter, two (2) times the Basic Rent and Additional Rent payable for the month immediately preceding the expiration or earlier termination of this Lease. The parties recognize and agree that the damage to Landlord resulting from any failure by Tenant or any assignee or subtenant of Tenant to timely surrender possession of the Premises will exceed the amount of the monthly Basic Rent and Additional Rent and will be impossible to accurately measure. If the Premises are not surrendered upon the expiration or earlier termination of this Lease, Tenant shall indemnify, defend and hold harmless Landlord against any and all losses and liabilities resulting therefrom, including, without limitation, any claims made by any succeeding tenant founded upon such delay. Nothing contained in this Lease will be construed as a consent by Landlord to the occupancy or possession of the Premises beyond the expiration or earlier termination of this Lease. Tenant shall, at its sole cost and expense, take all actions required to remove any assignee or subtenant of Tenant, or other party claiming rights to the Premises under or through Tenant upon the expiration or earlier termination of the Term. The provisions of this Article 24 will survive the expiration or earlier termination of this Lease.

25.1        Indemnity. Tenant represents to Landlord that Tenant has not had any dealings or entered into any agreements with any person, entity, realtor, broker, agent or finder in connection with the negotiation of this Lease other than the Broker. Tenant shall indemnify and hold harmless Landlord from and against any loss, claim, damage, expense (including costs of suit and reasonable attorneys’ fees) or liability for any compensation, commission or charges claimed by any other realtor, broker, agent or finder claiming to have dealt with Tenant in connection with this Lease. Landlord represents to Tenant that Landlord has not had any dealings or entered into any agreements with any person, entity, realtor, broker, agent or finder in connection with the negotiation of this Lease other than the Broker. Landlord shall indemnify and hold harmless Tenant from and against any loss, claim, damage, expense (including costs of suit and reasonable attorneys’ fees) or liability for any compensation, commission or charges claimed by any other realtor, broker, agent or finder claiming to have dealt with Landlord in connection with this Lease and for the failure of Landlord to pay the Broker a commission pursuant to the terms of the separate agreement between Landlord and the Broker with respect to this Lease. The provisions of this Article 25 will survive the expiration or sooner termination of this Lease.

25.2       Separate Agreement. Landlord represents and warrants that Landlord will pay the Broker’s commissions pursuant to a separate agreement.

28.1       (a)           Security. Tenant shall deposit with Landlord unconditional “evergreen” letters of credit in substantially the form set forth in Schedule F attached hereto from a recognized commercial banking institution located in the State of New Jersey or the City of New York and having a net worth of at least $500,000,000.00 as follows: in the amount of $1,500,000.00 concurrently with the execution of this Lease; and in the amount of $1,225,000.00 within ten (10) business days after the execution of this Lease. The letters of credit (or renewals thereof) shall not expire earlier than the date that is sixty (60) days after the Expiration Date, provided, that, if Tenant is unable to obtain a letter of credit expiring as of such date, (i) such letter of credit with the “evergreen” renewals shall have a term of at least three (3) years, and (ii) Tenant shall deliver to Landlord a new letter of credit satisfying the provisions of this Section (a) at least sixty (60) days prior to the final expiration date of the expiring letter of credit and, if Tenant fails to timely provide Landlord with such replacement letter of credit, Landlord will have the right to cash the letters of credit and retain the proceeds as security hereunder. The letters of credit will be held by Landlord as security for the full and faithful performance of Tenant’s obligations under this Lease. The letters of credit must be payable upon sight draft, together with a certification from Landlord that Tenant is in default under this Lease beyond any applicable notice and grace period. If (i) any Basic Rent, Additional Rent or other sum payable by Tenant to Landlord is not paid when due beyond any applicable notice and grace period, or (ii) Landlord makes any payments on behalf of Tenant after the expiration of any applicable notice and grace period, or (iii) Tenant fails to perform any of its obligations under this Lease beyond any applicable notice and grace period, then, in each case, Landlord will have the right, without prejudice to any other remedy Landlord may have, to draw down such letters of credit to compensate or reimburse Landlord, as the case may be, toward the payment of Basic Rent, Additional Rent or other such sum payable hereunder, or other loss or damage sustained by Landlord on account of Tenant’s default. The Security will not be deemed to be (x) a limitation on Landlord’s damages or other rights and remedies available under this Lease or at law or equity, (y) a payment of liquidated damages, or (z) an advance of the Basic Rent or Additional Rent. If Landlord uses, applies, or retains all or any portion of the Security, Tenant shall immediately restore the Security to its original amount. If the letters of credit require renewal, Tenant shall furnish to Landlord evidence of such renewal at least thirty (30) days prior to the expiration date of the letters of credit. If Tenant fails to timely provide Landlord with such evidence of renewal, Landlord will have the right to cash the letters of credit and to retain the proceeds as security hereunder. Landlord will not be required to keep any cash security separate from its own funds. Landlord will have no fiduciary responsibilities or trust obligations with regard to any cash security and will not be obligated to pay Tenant any interest on any cash security. Tenant shall not assign, pledge, hypothecate, mortgage or otherwise encumber the Security. Provided that Tenant is not in default of any monetary obligations or any other material obligations hereunder, then, on the three (3) year anniversary of Tenant’s commencement of the payment of Basic Rent, and continuing on each anniversary thereafter, Tenant shall be entitled to a ten percent (10%) reduction in the amount of the Security, until such time that the Security is an amount equal to three (3) months of the then escalated Basic Rent. If Tenant is entitled to the reductions in the Security as set forth in the immediately preceding sentence, Tenant shall deliver to Landlord either (i) an amendment to the existing letters of credit evidencing such reduced amount, or (ii) new letters of credit complying with the provisions of this Article 28 in such reduced amount to replace the letters of credit then being held by Landlord. Upon receipt of any such new letters of credit, Landlord shall return the letters of credit then being held by Landlord to Tenant. All terms applicable to the Security under this Article 28 shall otherwise apply.

(b)          If at any time during the Term (as the same may be extended) Landlord determines that the financial condition of the issuer of a then current letter of credit is such that Landlord’s ability to draw upon such letter of credit is, or in the future may be, impaired, restricted, refused or otherwise adversely affected, Tenant shall, within ten (10) business days of Landlord’s written request to Tenant, obtain a replacement letter of credit in substitution for such letter of credit in the form and amount required herein from an issuer acceptable to Landlord in Landlord’s reasonable discretion. If Tenant fails to timely provide Landlord with such replacement letter of credit, Landlord will have the right to cash the letters of credit and to retain the proceeds as security hereunder. In addition, if at any time during the Term (as the same may be extended) a receiver is appointed for any issuer of a letter of credit held by Landlord hereunder, Landlord will have the right to cash such letter of credit and to retain the proceeds as security hereunder.

28.2        Increase in Security. If Tenant is in default under this Lease more than two (2) times during any twelve (12) month period, irrespective of whether such default is cured, then, without limiting Landlord’s other rights and remedies provided for in this Lease or at law or equity, the Security will automatically be increased to an amount equal to the greater of: (i) one hundred fifty percent (150%) of the original Security, and (ii) three (3) months then current Basic Rent. Tenant shall pay the amount of such increase in the Security to Landlord upon demand.

28.3        Return of Security. So long as Tenant is not in default in the performance of any of its obligations under this Lease beyond any applicable notice and grace period, any part of the Security not used, applied, or retained by Landlord shall be returned, without interest, to Tenant within thirty (30) days after the expiration or earlier termination of the Term, subject to Tenant’s surrender of the Premises in the condition required by the terms of this Lease. Notwithstanding the foregoing, if Landlord, in its sole discretion, has sufficient evidence that the Security has been assigned to an assignee of this Lease, Landlord shall return the Security to such assignee and, upon such return, will be released from all liability with respect to the Security.

28.4       Bankruptcy. In the event of bankruptcy or other debtor-creditor proceeding against Tenant, the Security will be deemed to be applied first to the payment of rent and other charges due Landlord for all periods prior to filing of such proceedings.

28.5        Transfer of Security. In the event of any transfer of title to the Property or the Building or any assignment of Landlord’s interest under this Lease, Landlord will have the right to transfer the Security to such transferee, provided that Landlord gives Tenant the name and address of such transferee. Following any such transfer of the Security, and the transferee’s assumptions of Landlord’s obligations under this Lease arising from and after the date of the transfer, Landlord will be automatically released from all liability for the return of the Security. If the Security is transferred as provided above, Tenant, at no cost and expense to Tenant, agrees to take such action as is reasonably necessary to have the letters of credit reissued in favor of the transferee. The provisions of this Section 28.5 will apply to every transfer of the Security to a new transferee.

29.1        Miscellaneous. This Lease may not be amended except by an instrument in writing signed on behalf of both parties. If any provision of this Lease is held unenforceable by a court of competent jurisdiction, all other provisions of this Lease will remain effective. If any provision of this Lease is held unenforceable only in part or degree, it will remain effective to the extent not held unenforceable. This Lease will bind and benefit both parties’ permitted successors and assigns. The table of contents and the article and section headings contained in this Lease are for convenience of reference only and will not limit or otherwise affect the meaning of any provision of this Lease. This Lease may be executed in counterparts, each of which is an original and all of which together constitute one and the same instrument.

29.2        No Surrender. No act or thing done by Landlord or Landlord’s agents during the Term will be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender will be valid unless in writing and signed by Landlord. No employee of Landlord or Landlord’s agents will have any authority to accept the keys to the Premises prior to the Expiration Date and the delivery of keys to any employee of Landlord or Landlord’s agents will not operate as an acceptance of a termination of this Lease or an acceptance of a surrender of the Premises.

29.3        Statements and Bills. Landlord’s failure to prepare and deliver to Tenant any statement, notice or bill will in no way cause Landlord to forfeit or surrender its rights to collect any amounts due and owing to Landlord. Notwithstanding anything contained herein, Tenant shall not be responsible for Tenant’s Proportionate Share of Taxes, Operating Expenses or any utility bills applicable to any Lease Year which are first billed to Tenant more than two (2) years after the expiration of the applicable Lease Year.

29.4        Intentionally Deleted.

29.5        Tenant’s Financials. Tenant shall keep proper books and records of account in accordance with generally accepted accounting principles consistently applied. Upon request from Landlord, not more than once per calendar year, Tenant shall deliver to Landlord a balance sheet and statement of income and expense for such year (which statement must separately set forth the expenses of the Premises) and such other information with respect to Tenant as Landlord may reasonably request. All financial statements must include a complete comparison with the figures for the preceding year and must be certified by (a) the chief financial officer of Tenant, or (b) if prepared by any accounting firm, by such accounting firm.

29.6        No Offer. The submission of this Lease to Tenant for examination does not constitute an offer to lease the Premises on the terms set forth herein. This Lease will become effective only upon the execution and delivery of this Lease by Landlord and Tenant.

29.7        Access. Subject to all applicable Legal Requirements and to Landlord’s rules and regulations, Tenant shall be permitted access to the Premises twenty-four (24) hours per day, seven (7) days per week via an electronic building, elevator and office key card system.

29.8        Rules and Regulations. Tenant, for itself and for Tenant’s Visitors, covenants to comply with the Rules and Regulations attached hereto as Schedule E. Landlord will have the right to amend the Rules and Regulations from time to time, and Tenant, on behalf of itself and Tenant’s Visitors, agrees to comply with such amendments after deliveries of copies thereof to Tenant. Tenant’s obligation to comply with such Rules and Regulations and any amendments thereto, is subject to the following: (i) such Rules and Regulations will not materially increase Tenant’s monetary obligations or materially increase Tenant’s non-monetary obligations, or decrease any of Tenant’s rights under this Lease, and (ii) compliance with such Rules and Regulations will not interfere with Tenant’s normal business operations, which business operations are routine as of the date of this Lease.

29.9        Authority. Tenant represents and warrants to Landlord: (i) the execution and delivery of, the consummation of the transactions contemplated by and the performance of all its obligations under, this Lease by Tenant have been duly and validly authorized by its general partners, to the extent required by its partnership agreement and applicable law, if Tenant is a partnership or, if Tenant is a limited liability company, by its manager, representative(s) or members to the extent required by its operating agreement and applicable law or, if Tenant is a corporation, by its board of directors, if necessary, and by its stockholders, if necessary, at meetings duly called and held on proper notice for that purpose at which there were respective quorums present and voting throughout; (ii) no other approval, partnership, corporate, governmental or otherwise, is required to authorize any of the foregoing or to give effect to Tenant’s execution and delivery of this Lease; and (iii) the individual (or individuals) who executes and delivers this Lease on behalf of Tenant is authorized to do so.

29.10      Liability of Landlord. The Term “Landlord” as used in this Lease, so far as the covenants and agreements on the part of Landlord are concerned, shall be limited to mean and include only the owner (or lessee, as applicable) or Mortgagee(s) in possession at the time in question of the landlord’s interest in this Lease. Landlord may sell its fee ownership or leasehold interest in the Building or the Property, and/or transfer or assign its rights under this Lease. In the event of any sale of such interest or transfer of such rights and upon the assumption, in writing, of the obligations of Landlord under this Lease by such assignee or transferee, Landlord herein named (and in case of any subsequent transfer, the then assignor) shall be automatically freed and relieved from and after the date of such transfer of all liability in respect of the performance of any of Landlord’s covenants and agreements thereafter accruing, and such transferee shall thereafter be automatically bound by all of such covenants and agreements, subject, however, to the terms of this Lease; it being intended that Landlord’s covenants and agreements shall be binding on Landlord, its successors and assigns, only during and in respect of their successive periods of such ownership).

29.11      Intentionally Deleted.

29.12      Drafting Ambiguity. The parties acknowledge that this Lease has been reviewed by respective counsel and all terms have been considered and negotiated independently. Consequently, any rule that ambiguities shall be interpreted against the drafter shall not apply and there shall be no presumption favoring one party or the other in the interpretation of this Lease. Furthermore, no prior draft of this Lease shall be used or considered in the interpretation of this Lease.

29.13      Flood Zone Disclosure. Pursuant to N.J.S.A. 46:8-50, Landlord is required to inform Tenant if the Premises and/or the Property is located in, or if in the future the Premises and/or the Property is determined to be located in, a flood zone or area. To Landlord’s knowledge as of the date hereof, the Premises and the Property are not located in a flood zone or area.

29.14      Signage. Tenant (but not any assignee of sublessee of the Tenant’s interest in this Lease) shall have (a) the exclusive right, as long as Tenant is in occupancy of no less than 75% of the Premises, to place its name or logo on either the roof of the Building or the façade of the Building facing Interstates 95 in the maximum dimension permitted by Legal Requirements in a location determined by Landlord (“Tenant’s Façade Signage”), and (b) the non-exclusive right to have a sign on the existing monument located at the main entrance drive, the size of which shall be proportionate to the amount of space in the Building leased by Tenant (“Tenant’s Monument Signage”, and together with Tenant’s Façade Signage, “Tenant’s Signage”) provided that, in each case, (i) the size, materials, design, and all other specifications of Tenant’s Signage will be subject to Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed; (ii) the method of attaching Tenant’s Signage to the monument or the Building, as applicable, shall be subject to Landlords’ prior written consent, which shall not be unreasonably withheld, and (iii) Tenant’s Signage shall at all times comply with all applicable Legal Requirements. Tenant shall be responsible for all costs incurred in connection with the design, construction, installation, maintenance and repair, compliance with laws, and removal of Tenant’s Signage. Tenant shall, at Tenant’s sole cost and expense, remove Tenant’s Signage promptly following the expiration or earlier termination of this Lease and shall restore the monument or the area of the Building to the condition it was in immediately prior to the installation of Tenant’s Signage. Tenant shall bear all costs and expenses of any repairs to the monument or the Building made necessary by the installation, maintenance or removal of Tenant’s Signage. During the Term, Landlord shall be responsible, at Landlord’s sole cost and expense (which may be included in Landlord’s Operating Expenses to the extent permitted herein), for ensuring that there are no buildings or trees located on land owned by Landlord that obstructs the view of Tenant’s Signage from Interstate 95. Landlord, at Tenant’s sole cost and expense, shall use reasonable and diligent efforts to obtain all applicable governmental approvals for Tenant’s Façade Signage as soon as reasonably possible after Landlord receives all information from Tenant that Landlord needs to complete  any application from the applicable governmental authorities. In no event will Landlord be deemed to be in default of its obligations under this Lease, nor will Tenant have any termination rights or remedies if, after using commercially reasonable and diligent efforts, Landlord is unable to procure all necessary governmental approvals for Tenant’s Façade Signage.

29.15      Back-up Generator. Subject to compliance with Legal Requirements, Tenant shall have the right to install a back-up generator (or other emergency back-up equipment) for the exclusive use of Tenant (“Tenant’s Generator”) on the Property in such location as may be approved by Landlord in its sole and absolute discretion, in accordance with the provisions of this Section 29.15. Tenant shall furnish to Landlord detailed plans and specifications for Tenant’s Generator, the associated fuel tank (which shall be located above-ground) or other fuel supply source required for the operation of Tenant’s Generator (“Tenant’s Tank”) and all wires, lines, pipes, conduits and other apparatus in connection with Tenant’s Generator for Landlord’s prior approval, which approval shall not be unreasonably withheld, conditioned, or delayed. Upon approval of such plans and specifications for Tenant’s Generator, Tenant, using Landlord’s contractor (whose fees shall be competitive), shall have the right to install Tenant’s Generator and Tenant’s Tank, at Tenant’s expense. Tenant shall comply with all Legal Requirements in connection with the installation, use and maintenance of Tenant’s Generator, Tenant’s Tank and all lines, wiring, pipes, conduits, other apparatus in connection therewith and Tenant shall keep the Premises, Building and Land free and clear from liens arising from or related to the installation, use, maintenance and repair thereof. Tenant shall be responsible for procuring whatever approvals, licenses or permits may be required for the installation, use and maintenance of Tenant’s Generator, Tenant’s Tank and all lines, wiring, pipes, conduits, other apparatus in connection therewith and the related support systems required for the installation and use of Tenant’s Generator and Tenant’s Tank and the related support systems or operation of any equipment served thereby. Landlord agrees that, at no cost to Landlord, it shall cooperate with Tenant in Tenant’s pursuit of any such approvals, licenses, or permits, which cooperation shall include executing any necessary owner’s consent forms. Upon termination or expiration of this Lease, Tenant shall, at Landlord’s sole option, remove Tenant’s Generator, Tenant’s Tank and all lines, wiring, pipes, conduits, other apparatus in connection therewith, in which event Tenant shall repair and restore the Property and Building to the condition that existing prior to such installation, reasonable wear and tear and events of casualty and condemnation excepted. Tenant’s Generator must at all times be independent of the Building’s electrical distribution system. Tenant shall supply its own emergency transfer switches in connecting Tenant’s Generator to its electrical system and shall not use the emergency switches existing in the Building. Tenant shall be responsible for all costs and expenses in connection with the use, operation and repair of Tenant’s Generator, including, without limitation, the cost of fuel necessary to operate Tenant’s Generator and all other utility costs in connection therewith. Tenant shall maintain and repair Tenant’s Generator in a first-class manner consistent with generators used by other first-class office buildings in the State of New Jersey.

29.16      Amenities. During the Term, Tenant shall have access to the Princeton Pike Corporate Center’s new outdoor amenities core including the beach volleyball court, Frisbee golf course, horseshoes, bocce and the putting green. In addition, within thirty (30) days of the Commencement Date, Landlord shall provide the following additional outdoor amenities: a barbeque area, a shaded area and a basketball court, if not prohibited by Legal Requirements.

29.17      Arbitration.  (a)  In any case in which this Lease expressly provides that a matter is to be determined by arbitration, such arbitration shall be conducted in Trenton, New Jersey in accordance with the Commercial Arbitration Rules (Expedited Procedures) of the American Arbitration Association (the “AAA”) (or its successor then existing), except that the provisions of this Section 29.17 shall supersede any conflicting or inconsistent provisions of said rules. The party requesting arbitration shall do so by giving notice to that effect to the other party, specifying in said notice the nature of the dispute, and that said dispute shall be determined by a panel of up to three (3) arbitrators in accordance with this Section 29.17. Landlord and Tenant shall each appoint their own impartial arbitrator within ten (10) days after the giving of notice by either party. If either Landlord or Tenant shall fail timely to appoint an arbitrator, the appointed arbitrator shall select the second arbitrator, who shall be impartial, within five (5) days after such party’s failure to appoint. The arbitrators so appointed shall meet and shall, if possible, determine such matter within five (5) days after the second arbitrator is appointed and their determination shall be binding on the parties. If for any reason such two arbitrators fail to agree on such matter within such period of five (5) days, then either Landlord or Tenant may request the AAA to appoint an arbitrator who shall be impartial within seven (7) days of such request, and both parties shall be bound by any appointment so made within such seven (7) day period. Within seven (7) days after the third arbitrator has been appointed, each of the first two arbitrators shall submit their respective determinations to the third arbitrator who must select one or the other of such determinations (whichever the third arbitrator believes to be correct or closest to a correct determination) within seven (7) days after the first two arbitrators shall have submitted their respective determinations to the third arbitrator, and the selection so made shall in all cases be binding upon the parties, and judgment upon such decision may be entered into any court having jurisdiction. In the event of the failure, refusal or inability of an arbitrator to act, a successor shall be appointed within ten (10) days as hereinbefore provided. The third arbitrator shall, within thirty (30) days, schedule a hearing where the parties and their advocates shall have the right to present evidence, call witnesses and experts and cross-examine the other party’s witnesses and experts. The third arbitrator shall then make a decision, which shall be binding upon both parties, within thirty (30) days of such hearing. Each party shall pay the fees and expenses of their respective arbitrator and the losing party shall pay the fees and expenses of the third arbitrator, if any, acting under this Section 29.17.

(b)          Each arbitrator shall subscribe and swear to an oath fairly and impartially to determine such dispute. Each arbitrator shall be experienced in the issue with which the arbitration is concerned and shall have been actively engaged in such field for a period of at least ten (10) years before the date for his or her appointment hereunder. Each arbitrator shall apply the laws of the State of New Jersey, without giving effect to any principles of conflicts of laws.

31.1        Extension Option. Subject to the terms and conditions of this Section 31.1, Landlord hereby grants to Tenant the right to extend the original Term for two (2) periods of five (5) years each (each an “Extension Period”). If Tenant desires to exercise an extension option, Tenant shall notify Landlord on or before the date which is twelve (12) months prior to the expiration of the original Term or first Extension Period, as applicable. If Tenant fails to timely notify Landlord of its election to extend this Lease, Tenant will be deemed to have waived its right to extend the term of this Lease, time being of the essence with respect to the exercise of any such extension option. If Tenant exercises the extension option, all of the terms and conditions of this Lease will apply to each Extension Period, except that (i) the Basic Rent for each year of the applicable Extension Period will be determined pursuant to Section 31.2, and (ii) the Base Period for the applicable Extension Period will be the calendar year in which the commencement of such Extension Period occurs. In connection with any extension of the Term, Landlord will not be obligated to do any work to the Premises and will not be obligated to contribute to the cost of any work done to the Premises by Tenant. Tenant’s right to exercise any extension option is expressly subject to the satisfaction of all of the following conditions on both the date Tenant exercises such extension option and the commencement date of the applicable Extension Period: (i) Tenant must not be in default of any monetary obligation or any material non-monetary obligation under this Lease; (ii) Tenant must be in occupancy of the entire Premises; and (iii) Tenant must not have sublet any part of the Premises. If all of the foregoing conditions are not satisfied on both the date Tenant exercises the applicable Extension Option and the commencement date of such Extension Period, any notice exercising the extension option will be automatically null and void.

31.2       (a)           Extension Period Rent. Tenant shall pay to Landlord, as Basic Rent during each Extension Period, the Fair Market Rental Value of the Premises.  “Fair Market  Rental Value” means the annual basic rent, as escalated for each year of the relevant Extension Period, for which, on the terms and conditions of this Lease, a landlord would renew a premises similar to the Premises in a class-A office building located in the Princeton submarket similar to the Building for a term equal to the applicable Extension Period. Notwithstanding the forgoing, in no event will the Fair Market Rental Value for the first year of an Extension Period be less than the Basic Rent plus the Additional Rent payable for the year immediately preceding the commencement of such Extension Period.

(b)          At least one hundred eighty (180) days prior to the expiration of the initial Term or first Extension Period, as applicable, Landlord and Tenant shall endeavor to mutually agree upon the Fair Market Rental Value. If the parties do not agree on the Fair Market Rental Value prior to ninety (90) days prior to the expiration of the initial Term or first Extension Period, as applicable, as evidenced by an amendment to this Lease executed by Landlord and Tenant, then, no later than seventy-five (75) days prior to the expiration of the initial Term or first Extension Period, as applicable, Landlord and Tenant shall deliver to each other Landlord’s or Tenant’s, as the case may be, determination of the Fair Market Rental Value. If the two determinations differ by less than five percent (5%), the Fair Market Rental Value will be the average of the two determinations. If Landlord’s and Tenant’s determinations of Fair Market Rental Value differ by five percent (5%) or more, the Fair Market Rental Value will be determined pursuant to Section 31.2(c).

(c)          If Landlord’s and Tenant’s determinations of Fair Market Rental Value differ by five percent (5%) or more, then, within ten (10) days after each party delivers to the other party such party’s determination of the Fair Market Rental Value, Landlord and Tenant shall each appoint one disinterested appraiser having the qualifications set forth herein. Each such appraiser must be a Member of the Appraisal Institute (MAI) and have at least ten (10) years of experience appraising multi-tenanted office buildings in central New Jersey as a MAI appraiser. If either Landlord or Tenant fails to appoint an appraiser within such ten (10) day period, the appraiser appointed by Landlord or Tenant, as the case may be, shall appoint an appraiser having the qualifications set forth herein. As promptly as possible, but in no event later than thirty (30) days after the appointment of both appraisers, the appraisers shall notify Landlord and Tenant in writing of their determination of the Fair Market Rental Value. The Fair Market Rental Value so selected by the two appraisers will constitute the Fair Market Rental Value for the relevant period, and will be binding upon Landlord and Tenant. If the two appraisers are unable to agree as to the Fair Market Rental Value, but their determinations differ by less than five percent (5%), the Fair Market Rental Value will be the average of the determinations of the two appraisers. If the two appraisers’ determinations differ by five percent (5%) or more, the two appraisers shall promptly agree upon and appoint a third appraiser having the qualifications set forth herein. The third appraiser shall, within thirty (30) days of appointment, determine which of the two initial appraisers determination of Fair Market Rental Value is the closest to the actual Fair Market Rental Value, taking into account the requirements of this Section 31.2, and shall notify Landlord and Tenant thereof. The Fair Market Rental Value selected by the third appraiser will constitute the Fair Market Rental Value for the relevant period, and will be binding upon Landlord and Tenant. Upon the determination of the Fair Market Rental Value, Landlord and Tenant shall promptly execute an instrument setting forth the amount of such Fair Market Rental Value.

(d)          If Tenant becomes obligated to pay Basic Rent for an Extension Period prior to the determination of Fair Market Rental Value pursuant to this Section 31.2, Tenant shall commence paying the Basic Rent in an amount equal to the monthly installment of Basic Rent for the month immediately prior to such Extension Period. Within five (5) days of the determination of Fair Market Rental Value, Tenant shall pay to Landlord the difference, if any, between the Basic Rent paid by Tenant pursuant to the foregoing sentence and the Fair Market Rental Value for such period. Each party shall pay the fees and expenses of the appraiser appointed by such party and one-half of the other expenses of any appraisal proceeding, including, if applicable, the fees and expenses of a third appraiser.

32.1        Right of First Refusal.  (a)  If at any time Landlord receives from a prospective tenant a letter of intent or other letter containing an offer to lease any space in the Building (the “Right of First Refusal Space”) which Landlord intends to accept, Landlord agrees to deliver to Tenant a notice setting forth all of the terms upon which Landlord would lease such space to such prospective tenant (the “Right of First Refusal Offer Notice”) and an offer to Tenant to lease such space on such terms (the “Right of First Refusal Expansion Option”).

(b)          Tenant shall have the right to exercise the Right of First Refusal Expansion Option by delivering to Landlord a notice accepting the offer contained in the Offer Notice (the “Right of First Refusal Acceptance Notice”) within fifteen (15) business days after receipt of the Right of First Refusal Offer Notice, time being of the essence with the delivery of such notice. If Tenant fails to timely exercise the Right of First Refusal Expansion Option, Tenant shall be deemed to have waived its Right of First Refusal Expansion Option with respect to such Right of First Refusal Space. If Tenant shall timely deliver the Right of First Refusal Acceptance Notice, Landlord shall lease the Right of First Refusal Space to Tenant on the terms set forth in the Right of First Refusal Offer Notice, except that term for such Right of First Refusal Space shall be, at Tenant’s option, either (i) the term set forth in the Right of First Refusal Offer Notice, or (ii) co-terminus with the Term hereunder, provided that there are no less than five (5) years remaining in the Term.

(c)          Within thirty (30) days of the date of Tenant’s exercise of its right of first refusal to expand, Landlord and Tenant shall execute an amendment to this Lease to set forth (i) the amount of rentable square feet of space constituting the Premises after the addition of the Right of First Refusal Space; (ii) the location of the Right of First Refusal Space by amending Schedule A of this Lease; (iii) the amount of Basic Rent for the Premises as increased by the Right of First Refusal Space; and (iv) the adjustment to the Tenant’s Proportionate Share for determining Additional Rent. If Tenant fails to timely enter into such amendment to this Lease, Tenant shall be deemed to have waived its Right of First Refusal Expansion Option with respect to such Right of First Refusal Space.

(d)          Tenant’s right to exercise the Right of First Refusal Expansion Option is expressly subject to the satisfaction of all of the following conditions on both the date Tenant exercises the Right of First Refusal Expansion Option and the commencement date of the Term for the Right of First Refusal Expansion Space: (i) Tenant must not be in default of any monetary obligation or any material non-monetary obligation under this Lease for which notice of such default has been given to Tenant; (ii) Tenant must be in occupancy of the entire Premises; (iii) Tenant must not have sublet any part of the Premises, and (iv) there must be no less than five (5) years remaining in the Term. If all of the foregoing conditions are not satisfied on both the date Tenant exercises the Right of First Refusal Expansion Option and the commencement date of the Term for the Right of First Refusal Expansion Space, then any notice exercising the extension option will be automatically null and void.

(e)           Tenant shall be entitled to (i) a tenant improvement allowance, to be distributed in a manner consistent with the provisions of Schedule D, in an amount equal to the greater of (A) the product of: (1) $65.00 times, (2) the rentable square feet of the Right of First Refusal Space, times (3) a fraction, the numerator of which is the number of calendar months remaining in the Term as of the commencement of the Term with respect to the Right of First Refusal Space, and the denominator of which is the total number of calendar months in the Term (provided that this clause (A) shall only apply if the Basic Rent set forth in the Right of First Refusal Offer Notice is greater than or equal to the then escalated Basic Rent due hereunder), or (B) the product of: (1) tenant improvement allowance (on a per square foot basis) set forth in the Right of First Refusal Offer Notice, if any, times, (2) the rentable square feet of the Right of First Refusal Space; and (ii) a rent abatement concession with respect to the Right of First Refusal Space for a period of time equal to the greater of (A) six (6) months, times, a fraction, the numerator of which is the number of calendar months remaining in the Term as of the commencement of the Term with respect to the Right of First Refusal Space, and the denominator of which is the total number of calendar months in the Term (provided that this clause (A) shall only apply if the Basic Rent set forth in the Right of First Refusal Offer Notice is greater than or equal to the then escalated Basic Rent due hereunder), or (B) the number of calendar months in the rent abatement concession set forth in the Right of First Refusal Offer Notice, if any.

(f)           The provisions of this Article 32 are subject to the rights of any tenant (under a lease that is in effect as of the date this Lease is signed) in the Building to such space, including any tenant then occupying such Right of First Refusal Space and, if such tenant does not have any such rights, Landlord shall have the right to lease such Right of First Refusal Space to such tenant without complying with the provisions of this Section 32.

33.1        Early Termination Option.  (a)  Tenant shall have the one time right to terminate this Lease effective as of the twelve (12) year and six (6) month anniversary of the Commencement Date (the “Early Termination Date”) by delivering notice thereof to Landlord (the “Early Termination Notice”) no later than the eleven (11) year anniversary of the Commencement Date (time being of the essence with respect to the giving of such notice). Tenant’s right to terminate this Lease is contingent upon (a) timely delivery of the Early Termination Notice, (b) Tenant not being in default of any monetary obligation or any material non-monetary obligation under this Lease as of the date of the giving of the Early Termination Notice or as of the Early Termination Date for which notice of such default has been given to Tenant, and (c) Tenant delivering to Landlord, at the same time Tenant delivers to Landlord the Early Termination Notice, a payment in an amount equal to $3,600,000.00 (the “Early Termination Payment”). The failure of Tenant to timely give Landlord the Early Termination Notice and/or the Early Termination Payment shall render any Early Termination Notice delivered to Landlord null and void and this Lease shall continue in full force and effect pursuant to the terms hereof. If Tenant properly terminates the Lease pursuant to the provisions of this Article 33, the Lease shall expire at midnight on the Early Termination Date as if such date was the date set forth in the Lease as the Expiration Date.

(b)          Notwithstanding anything to the contrary contained herein, Tenant’s right to terminate this Lease pursuant to this Article 33 shall be waived and this Article 33 shall be null and void and of no further force or effect following the earlier to occur of (i) Tenant shall have, through one or more exercises of its Right of First Refusal Expansion Option set forth in Article 32, expanded the Premises leased hereunder by more than 7,500 square feet, in the aggregate, or (ii) Tenant shall have exercised its rights under Article 35.

34.1        Right of First Offer (Sale). Tenant shall have the absolute right to purchase the Property if, at any time during the term of this Lease, Landlord shall decide to sell the Property as single asset and not as part of a larger, “portfolio sale”. For purposes hereof, a “portfolio sale” shall mean the sale of two (2) or more assets. In such event, Landlord shall notify Tenant in writing of its decision to sell the Property and the terms upon which Landlord would consummate such sale (the “Offer Notice”). Tenant shall have twenty (20) days from the date of its receipt of the Offer Notice (the “Exclusive Period”) to accept Landlord’s offer to purchase the Property on the terms set forth in the Offer Notice, time being of the essence. If Tenant fails to notify Landlord that it accepts Landlord’s offer to purchase the Property in accordance with the terms set forth in the Offer Notice prior to the expiration of the Exclusive Period, then Tenant shall be deemed to have waived its rights under this Article 34 and Landlord may then sell the Property at such price and under such terms and conditions as Landlord may determine in its sole and absolute discretion without any obligation to once again offer the Property to Tenant. Landlord agrees that it shall not negotiate with any third party during the Exclusive Period. The provisions of this Article shall be of no further force and effect if Landlord sells the Property to a third party as a result of Tenant failing to exercise its rights under this Section.

35.1        Termination Due to Failure to Expand.

(a)           If, at any time during the Term, Tenant desires to expand the Premises by seventy-five thousand (75,000) rentable square feet for a total of one hundred fifty thousand (150,000) rentable square feet (as same may be reduced as described below), Tenant shall deliver written notice of such intention to Landlord. If Landlord is unable to accommodate Tenant’s requests to expand pursuant to Section 32.1 or otherwise after the five (5) year and six (6) month anniversary of the Commencement Date and within twelve (12) months of receipt of Tenant’s request, then Tenant shall have the right to terminate this Lease by delivering written notice of such termination to Landlord. If Landlord is not able to accommodate Tenant’s expansion needs within thirty (30) days after receipt of Tenant’s termination notice, then on such thirtieth (30th) day, this Lease shall terminate and be of no further force and effect, except for those obligations that survive such termination, as set forth in this Lease. If, however, Landlord accommodates Tenant’s expansion needs within such thirty (30) day period, then Tenant’s termination notice shall be null and void and this Lease shall continue in full force and effect.

(b)          Notwithstanding anything to the contrary in Section 35.1(a), the additional seventy-five thousand (75,000) rentable square feet referred to in Section 35.1(a) shall be reduced by the amount of the rentable square footage of the Right of First Refusal Space offered because Tenant will have either (i) exercised the Right of First Refusal Expansion Option satisfying its current expansion needs, or (ii) not exercised the Right of First Refusal Expansion Option permitting Landlord to lease up such space, in either event, reducing the inventory available for Landlord to accommodate Tenant’s space needs.

(c)          If Tenant terminates this Lease pursuant to the terms of Section 35.1(a) above, simultaneously with Tenant delivering to Landlord the termination notice referred to in Section 35.1(a), Tenant shall deliver to Landlord a payment in an amount equal to $7,500,000.00 less $650,000.00 for each twelve month period (as same shall be prorated for a partial twelve month period) from the date which is the six (6) year and six (6) month anniversary of Tenant’s commencement of the payment of Basic Rent. The failure of Tenant to timely give Landlord such payment shall render any termination notice delivered by Tenant pursuant to Section 35.1(a) null and void and this Lease shall continue in full force and effect pursuant to the terms hereof.

(d)          If Landlord is able to accommodate Tenant’s expansion needs pursuant to this Article 35: (i) the Basic Rent for the expansion space during the first year that such space is leased to Tenant shall be a “Fair Market Rental Value” determination as set forth in Section 31.2, with each successive year increasing by $0.50 per square foot, (ii) Tenant shall be entitled to a prorated share of the tenant improvement allowance and the rent abatement concession given in accordance with the original Premises (as opposed to the tenant improvement allowance and the rent abatement concession given in accordance with an exercise of the Right of First Refusal Options in Article 32), and (iii) the Term of the Lease with respect to such expansion space shall be greater of (1) seven (7) years and six (6) months, or (2) the remaining Term of the Lease, provided that if the remaining Term of the Lease is less than seven (7) years and six (6) months, then Tenant shall exercise any available Extension Periods so that the remaining Term of the Lease is equal to or greater than seven (7) years and six (6) months.

(e)          In no event shall Landlord have the obligation to accommodate Tenant’s expansion needs and Tenant shall not have the right to terminate this Lease pursuant to the provisions in Section 35.1(a), if during the Term (i) an Event of Default has occurred, or (ii) Landlord is able to accommodate Tenant’s expansion needs, but after using diligent and good faith efforts, Landlord and Tenant are unable to agree upon the terms of, and fail to execute, an amendment to this Lease, incorporating the additional space referred to in Section 35.1(a) into the Premises within thirty (30) days after Landlord delivers to Tenant a draft of the amendment incorporating the additional space into the Premises.

36.1        Grow NJ Incentives Contingency Clause.

(a)          Landlord hereby acknowledges and agrees that Tenant is entering into this Lease on the express condition that it obtains from the New Jersey Economic Development Authority (“NJEDA”) a “Grow NJ” financial incentive grant in an amount that is acceptable to Tenant its sole discretion (“Incentive Award”).

(b)          Tenant agrees to apply for the Incentive Award promptly following the effective date of this Lease (if application has not been made prior thereto) and to thereafter use diligent efforts to pursue its application. In connection with the Incentive Award, Tenant shall keep Landlord informed as to the matters discussed at all meetings with the applicable governmental authorities and the contents of all correspondence Tenant receives from the applicable governmental agencies as soon as reasonably possible.

(c)          Upon the final and non-appealable approval of the Incentive Award by the NJEDA, this contingency shall be deemed satisfied for all purposes of this Lease. However, if Tenant is unable for any reason to obtain the final and non-appealable approval of the Incentive Award by the NJEDA Board on or before October 30, 2017 (“Contingency Deadline”), then, notwithstanding anything contained herein to the contrary, this Lease shall automatically terminate and the parties hereto shall thereafter be freed and relieved of all obligations hereunder except for the return of any security deposit due to Tenant. Notwithstanding the foregoing, Tenant shall have the right to extend the Contingency Deadline for an additional thirty-one (31) days by giving notice to Landlord not later than five (5) days prior to the expiration of the Contingency Deadline, provided that such notice shall include written confirmation from NJEDA that Tenant’s application is complete or substantially complete and is awaiting review and approval by NJEDA.

(d)          Landlord hereby also acknowledges and agrees that Tenant’s eligibility for and receipt of the Incentive Award is and will be expressly conditioned, by applicable law, and compliance by Landlord with the following requirements, and Landlord agrees to comply therewith, at its sole cost and expense:

(i)            with respect to any construction, alteration, refurbishment or renovation of the Premises by or on behalf of Landlord (as distinguished from ordinary maintenance and repair work) from and after the date hereof and continuing through the date which is approximately twenty four (24) months after Tenant has first received any portion of the Incentive Award (such “sunset date” to be memorialized by the parties promptly after such date is able to be determined), Landlord shall ensure the payment of prevailing wages to all construction workers [P.L. 2007, c. 245 (N.J.S.A. 34:1B-5.1)] and the adherence to affirmative action in the hiring of all construction workers [P.L. 1979, c. 303 (N.J.S.A. 34:1B-5.4)], by: (a) executing the NJEDA’s “Addendum to Construction Contract” (a copy of which is attached to this Lease as Schedule G), (b) attaching such Addendum to all construction contracts entered into by Landlord with respect to the Premises, and (c) causing its contractor(s) performing work to the Premises to in turn attach such Addendum to all construction contracts entered into with  subcontractors. Notwithstanding the foregoing, an exemption from NJEDA’s prevailing wage and affirmative action requirements is available if: (1) the Premises constitute less than 55% of the square footage of the Building, and (2) Landlord (not Tenant) is the party to the construction contract(s) pertaining to, and responsible for payment of, all construction work (i.e., both Finish Work and any Tenant’s Work), other than Tenant’s reimbursement obligations as set forth in Schedule D. Landlord hereby represents that the Premises constitute less than 55% of the square footage of the building, and that Landlord (not Tenant) will be the party to the construction contract(s) pertaining to, and responsible for, payment of all construction work (i.e., both Finish Work and any Tenant’s Work), other than Tenant’s reimbursement obligations as set forth in Schedule D. Landlord shall ensure that the foregoing representations remain true through the end of the aforementioned sunset date;

(ii)           with respect to the initial build-out/fit-up of the Premises by or on behalf of Landlord or Tenant, Landlord shall: (a) cooperate with Tenant and obtain on behalf of Tenant, no later than the end of schematic design and in all events prior to the commencement of any construction activity, approval by NJEDA of a green building design plan covering all construction, alteration, refurbishment or renovation of the Premises as more fully detailed in the NJEDA summary attached to this Lease as Schedule H; (b) adhere to the NJEDA-approved green building design plan in the course of performing any build-out/fit-up work; and (c) at the completion of such work, obtain and deliver to Tenant a licensed engineer’s certification that such work adhered to the NJEDA-approved green building design plan in all material respects;

(iii)          comply with all applicable Legal Requirements, including, but not limited to, the Conflicts of Interest Law as set forth in N.J.S.A. 52:13D-12 et seq. and the Americans with Disabilities Act of 1990, 42 U.S.A. Sec. 1201 et seq.

(e)          Landlord agrees to, in a timely manner so as not to impede, prejudice or delay Tenant’s eligibility for or receipt of any portion of the Incentive Award, submit such information and participate in such meetings or conference calls as shall be requested or required by NJEDA, Tenant or Tenant’s team of professionals to ensure or confirm compliance with the foregoing requirements including, without limitation, furnishing evidence of the expenses incurred in connection with the construction or renovation of the Premises and attending a required pre-construction meeting with the NJEDA’s affirmative action/prevailing wage compliance officer.

37.1        Roof Rights.

(a)          Landlord hereby grants to Tenant, commencing on the Commencement Date and ending on the expiration or other termination of this Lease, a license (the “Dish License”) to install, maintain and operate a satellite dish or antenna (the “Dish”) and all necessary related equipment on the roof of the Building subject to the following terms, conditions and limitations: (i) the location of the Dish shall be on the roof of the Building in a location reasonably approved by Landlord (the “Dish Area”); (ii) Landlord approves the size of the Dish; (iii) installation, operation, maintenance, repair, replacement and removal of the Dish and related equipment, and any attendant costs and expense, shall be the sole responsibility of Tenant and be subject to Landlord’s rules and regulations; (iv) Tenant shall obtain (and maintain throughout the Term) any approval required by any regulatory body having authority over the installation or operation of the Dish and upon Landlord’s request, shall deliver evidence of same to Landlord; (v) Tenant’s installation or operation of the Dish shall not materially interfere with the operation or any other transmission or receiving device at the Building, nor shall it materially interfere in any way with the Building’s engineering, window washing or other maintenance functions; (vi) any penetration of the roof shall be performed by contractors selected by Landlord and Tenant agrees to cooperate with Landlord’s roof warranty provider and/or its contractor(s) in order to maintain the integrity of the roof warranty for the Building; (vii) Tenant shall coordinate the installation activities with Landlord and shall neither bring equipment to the site, nor commence its installation within the Dish Area, without first giving Landlord reasonable notice of the date and time of the planned installation; (viii) the Dish shall must be properly secured and installed so as not to be affected by high winds or other elements and must be properly grounded; (ix) Tenant shall give Landlord reasonable prior notice of the necessity to access the Dish for service, except in the case of an emergency; (x) the weight of the Dish shall not exceed the load limits of the roof; (xi) in no event shall the Dish or any appurtenant wiring or cable interfere with or otherwise affect the electrical, mechanical, structural, life safety or other building systems of the Building; (xii) Tenant shall repair any damage to the roof caused by its installation, maintenance, operation or removal of the Dish in a manner prescribed by Landlord; (xiii) Tenant will, at all times in connection with the installation, use, operation and maintenance of the Dish, comply with all Legal Requirements, and (iv) Tenant shall maintain the Dish in a manner that is consistent with satellite dishes or antennas located on other Class A office buildings in County . In no event shall Tenant be charged a rental or fee for the use of the rooftop space for its first satellite dish and related equipment or for the use of the Building’s risers. Upon termination or expiration of this Lease, Tenant shall, at Landlord’s sole option, remove the Dishes and all lines, wiring, pipes, conduits, other apparatus in connection therewith, in which event Tenant shall repair and restore the Property and Building to the condition that existed prior to such installation.

(b)          The Dish shall be considered personal property and shall remain the property of Tenant. Landlord shall not be obligated or responsible for, and Tenant alone shall be responsible for, any damage, theft or vandalism of the Dish and for any and all expenses resulting from any such damage, theft or vandalism, except if (and only to the extent that) the same is caused by the willful act of Landlord or its employees or agents.

(c)          Landlord, at its sole expense, upon not less than sixty (60) days prior written notice to Tenant (the “Dish Relocation Notice”), may require Tenant to relocate the Dish Area to other space of comparable size on the roof of the Building provided such space is suitable for Tenant’s use. In the event of any such relocation, Landlord shall pay the reasonable expenses of moving Tenant’s Dish and appurtenant equipment to the new space. Use and occupancy by Tenant of the new space shall be under and pursuant to the same terms, conditions and provisions of this Section 37.1 and Tenant shall execute any and all amendments to this Lease as Landlord shall deem necessary to effectuate the provisions of this Paragraph.

(d)          If Landlord grants an exclusive right to maintain and/or manage rooftop communications equipment at the Building to a third party which is not a party to this agreement, then Landlord shall have the right to assign this Dish License to such third party.

IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.