Exhibit 10.25
FOURTH AMENDMENT OF LEASE
THIS AMENDMENT, made and entered into as of May 22, 1996, by and between
WEST VALLEY BUSINESS TRUST ("Landlord") and INFONAUTICS CORPORATION, a
Pennsylvania corporation ("Tenant").
WHEREAS, by lease dated June, 1994, as amended January, 1995, June 30,
1995, and November 13, 1995 (the "Lease"), Landlord leased to Tenant and
Tenant leased from Landlord portions of buildings 900, 1000 and 1100 located
at 900 West Valley Road, Wayne, Pennsylvania;
WHEREAS, the parties desire to amend the Lease to provide for conduit
access for telecommunication services to the Demised Premises at the request
of and for the benefit of Tenant.
NOW THEREFORE, in consideration of the sum of $1.00, in hand well and
truly paid, and other good and valuable consideration, the receipt of which
is hereby acknowledged, and in further consideration of the mutual premises
and convenants herein contained, the parties, intending to be legally bound,
agree:
1. Landlord shall enter into the Utility Access Agreement with
Metropolitan Fiber Systems of Philadelphia, Inc. (the "Access Agreement"), in
substantially the form attached to this Amendment.
2. Any costs or expense incurred by Landlord with respect to the
Access Agreement not promptly paid by the licensee under the Access Agreement
shall be paid by Tenant to Landlord as additional rent under the Lease.
3. Tenant shall indemnify and hold Landlord harmless from any
cost or expense, including but not limited to reasonable attorneys fees,
arising in connection with the Access Agreement.
4. Except as modified herein, all terms and conditions of the
Lease, including but not limited to provisions providing for confession of
judgment, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
on the date first above mentioned.
LANDLORD:
WEST VALLEY BUSINESS TRUST
By: /s/ Robert W. Zwengler
-----------------------
an officer and not individually
TENANT
INFONAUTICS CORPORATION, a
Pennsylvania corporation
By: /s/ Ronald A. Berg
-----------------------
Name: Ronald A. Berg
Title: Vice President-Finance
Attest:
-------------------
[Corporate Seal]
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UTILITY ACCESS AGREEMENT
This Utility Access Agreement for public utility telecommunications
services (the "Agreement") is made as of May 22, 1996, between WEST VALLEY
BUSINESS TRUST, its successors and assigns, with an office in care of Fox
Realty Company at 1325 Morris Drive, Wayne, PA 19087 ("Licensor"), and
METROPOLITAN FIBER SYSTEMS OF PHILADELPHIA, INC., a Delaware Corporation (a
public utility certified and regulated by the State of Delaware and regulated
by the Federal Communications Commission), its successors and assigns, with
an office at 1601 Market Street, Suite 2200, Philadelphia, Pennsylvania,
19103 ("Licensee").
WHEREAS, Licensor recognizes that Infonautics Corporation has requested
that Licensee provide public utility telecommunications services to premises
located in Buildings 900 and 1100 (the "Buildings") located at 900 West
Valley Drive, leased by Infonautics Corporation from Licensor pursuant to a
lease entered into with Licensor dated June, 1994, as amended ("the Lease"):
WHEREAS, a portion of the ground between the Buildings and the MFS
Backbone is owned by Licensor (the "Property").
NOW THEREFORE, in consideration of the mutual covenants herein expressed
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Licensee and Licensor hereby covenant and
agree as follows:
1. LICENSEE
a. Following notice to and approval of Licensor, as set forth
in Paragraph 3, Licensee shall have a license to cross the
Property over the route designated on the plan attached
hereto as Exhibit "A" (the "Plan") to gain access to the
Buildings and the right to construct, where necessary and
at its expense, conduit facilities in accordance with the
Plan ("the Conduit"), associated with providing public
utility telecommunications services (the "License").
b. The License granted herein is not exclusive. Licensor hereby
reserves the right to grant, renew or extend similar licenses
to others.
c. Nothing contained herein shall be constructed as a
representation or warranty to Licensee that Licensor is the
owner of all of the land over which the Conduit is routed as
depicted on the Plans or granting to Licensee any property or
ownership rights in the Property or the Buildings or as
creating a partnership or joint venture between Licensor and
Licensee.
negligence or willful misconduct. At the termination of this
Agreement, any conduit not removed within sixty (60) days after the
expiration of this Agreement shall be deemed the property of the
Licensor; provided, however, that Licensor may at its election
remove the Conduit at Licensee's sole cost.
6. ACCESS - Licensor shall provide Licensee access to the Property
twenty-four (24) hours a day, seven (7) days a week, three hundred
sixty-five (365) days a year, so that Licensee may perform
installation, operation, maintenance, replacement and repair
functions all in accordance with Licensor's rules and regulations.
Access to the Buildings is subject to the rights of Infonautics
Corporation, with whom the Licensee shall make its own
arrangements.
7. TERM - The term of the License shall be co-terminus with the
Infonautics Lease, provided that Licensor may terminate this
License pursuant to Section 13.
8. INDEMNIFICATION - Licensee shall indemnify, exonerate and hold
Licensor, its principals, officers, directors, agents, employees
and servants harmless from and against any loss, cost, damage and
expense of whatever kind (with the exception of special,
consequential and incidental damages) arising directly or
indirectly from the construction, operation, maintenance and repair
of Licensee's Conduit or from Licensee's breach of this Agreement,
including, but not limited to, reasonable attorney's fees and
court costs, except to the extent such loss, damage, cost or
expense is due to the gross negligence or willful misconduct of
Licensor or its employees, agents or invitees. The provisions of
this Section 8 shall survive termination of this Agreement.
9. INSURANCE
a. Licensee shall maintain such insurance, including through a
blanket policy as will fully protect both Licensee and
Licensor from any and all claims by employees of Licensee
under the workmen's compensation act or employers' liability
laws, including any employers' disability insurance laws,
and from any and all other claims of whatsoever kind or
nature for any and all damage to property or for personal
injury, including death, to anyone whomsoever, that may arise
from operations in connection with the performance of their
services in the Building by Licensee or by anyone directly or
indirectly engaged or employed by Licensee. Licensee shall
provide Licensor with certificates evidencing the required
coverage before Licensee begins any construction work on the
Property or in the Buildings. Such policies shall provide
that Licensee shall be notified by Licensee's insurance
company not less than 30 days in advance of cancellation.
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b. Licensee's General Liability insurance shall be a combined
single limit of $2,000,000. This policy limit requirement
may be increased from time to time by Licensor upon notice to
Licensee.
c. Insurance described in Subsections (a) and (b) of this
Section 9 shall be maintained by Licensee throughout the term
of this Agreement. Upon Licensee's default in obtaining or
delivering any such policy or certificate of insurance or
Licensee's failure to pay the premiums therefore, Licensor may
(but shall not be obligated to) secure or pay the premium for
any such policy and charge Licensee the cost of such premium.
10. LIENS - Licensee shall be responsible for the satisfaction or
payment of any liens for any provider of work, labor, material or
services claiming by, through or under Licensee. Licensee shall
also indemnify, hold harmless and defend Licensor against any such
liens, including the reasonable fees of Licensor's attorneys. Such
liens shall be discharged by Licensee within thirty (30) days after
notice of filing thereof by bonding, payment or otherwise, provided
that Licensee may contest, in good faith and by appropriate
proceedings any such liens.
11. PERFORMANCE OF WORK - Licensee may contract or subcontract any
portion of work contemplated by this Agreement to any person or
entity competent to perform such work and insured as provided above.
In no event shall such subcontract relieve Licensee of any of its
obligations under this Agreement.
12. EVENTS OF DEFAULT - Each of the following occurrences shall
constitute an "Event of Default" under this Agreement:
a. Breach by either party of any material provision of the
Agreement.
b. If Licensee abandons or deserts its equipment of the Conduit
during the Term hereof or Licensee removes its equipment from
the Buildings (and does not replace or substitute equipment).
c. Interference caused to pre-existing telecommunications
facilities by the installation, operation, maintenance,
replacement or repair of Licensee's equipment, or the Conduit.
13. TERMINATION REMEDIES - Upon occurrence of an Event of Default, the
non-defaulting party shall give written notice to the defaulting
party, setting forth the nature of the Default. The defaulting party
shall have thirty (30) days to cure such Default. If the defaulting
party shall have failed to cure the
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Default within the applicable cure period, the non-defaulting party
may elect to terminate this Agreement, whereupon Licensee shall
remove its equipment and the Conduit from the Property and the
Buildings in a neat and orderly manner and as of the date of such
removal neither party shall have any claims against the other,
except for claims that may have arisen prior to such termination and
this Agreement shall be deemed terminated and of no force and
effect.
14. ASSIGNMENT - Licensee shall not assign or transfer this Agreement
without the written consent of the Licensor, which consent will not
be unreasonably withheld or unduly delayed; except that upon
written notice to the Licensor, Licensee may, without obtaining
Licensor's prior consent, make such assignment to:
a. any firm or corporation which Licensee controls, is controlled
by or is under common control with;
b. any partnership in which Licensee has a controlling interest;
or
c. to any entity which succeeds to all or substantially all of
Licensor's assets whether by merger, sale or otherwise,
provided that the assignee assumes in full the obligation of
Licensee under this Agreement.
15. NOTICE - Every notice required or permitted hereunder shall be in
writing and shall be deemed to have been duly given three (3)
business days after mailed by certified or registered mail, return
receipt requested, to the party's address set forth in the
introductory paragraph of the Agreement. Either party may change
its address for the purpose of notice hereunder by providing the
other party with notice of the new address.
16. GOVERNING LAW - This Agreement shall be governed by and construed
under the laws of the Commonwealth of Pennsylvania.
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17. RECORDING - This Agreement shall not be recorded in any public
office.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
WEST VALLEY BUSINESS TRUST
By:
-----------------------
Name:
Title:
an officer and not individually
METROPOLITAN FIBER SYSTEMS
OF PHILADELPHIA, INC.
a Delaware corporation
By:
-----------------------
Name:
Title:
Attest:
-------------------
[Corporate Seal]
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Map of
Outside Plant Facility
Proposal-Infonautics
900 West Valley Rd
Ste 900 4/29/96
Dwg 2 of 2
Map of
Outside Plant Facility
Proposal-Infonautics
900 West Valley Rd
Ste 900 4/29/96
Dwg 1 of 2
FIFTH AMENDMENT OF LEASE
THIS AMENDMENT, made and entered into as of April 18, 1996, by and
between WEST VALLEY BUSINESS TRUST ("Landlord") and INFONAUTICS CORPORATION,
a Pennsylvania corporation ("Tenant").
WHEREAS, by lease dated June, 1994 (the "Initial Lease"), Landlord
leased to Tenant and Tenant leased from Landlord a portion of a building
located at 900 West Valley Road, Wayne, Pennsylvania, consisting of 7,756
square feet of space in building 900 as more particularly described in the
Lease (the "Original Premises").
WHEREAS, by that certain first amendment to lease dated January, 1995
the ("First Amendment") Landlord leased to Tenant an additional (i) 1,522
square feet of space in Building 1000 as more particularly described in the
First Amendment ("First Expansion Space"), and (ii) 1,247 square feet of
space in Building 1000 as more particularly described in the First Amendment
("Second Expansion Space").
WHEREAS, by that certain second amendment to lease dated June 30, 1995
(the "Second Amendment") Landlord leased to Tenant an additional 5,462 square
feet of space in Building 1100 more particularly described in the Second
Amendment ("Third Expansion Space"), and Landlord and Tenant extended the
Initial Term Expiration Date to July 31, 2000.
WHEREAS, by that certain third amendment to lease dated as of November
13, 1995, Landlord leased to Tenant Suite 1101 consisting of approximately
1,509 square feet of space in Building 1100 as more particularly described in
the Third Amendment ("Fourth Expansion Space").
WHEREAS, by that certain fourth amendment to lease dated as of May 22,
1996, Landlord and Tenant agreed to the terms of a utility access agreement.
WHEREAS, pursuant to the terms of the Third Amendment, the Initial Lease
was amended to redefine the term "Demised Premises" to include the Original
Premises, the First Expansion Space, the Second Expansion Space, the Third
Expansion Space and the Fourth Expansion Space thereby increasing the total
square footage of the Demised Premises to 17,496 square feet and the Tenant's
Proportionate Share to 10.83%.
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to
lease to Tenant Suites 801, 802 and 804 consisting of approximately 3,544
square feet of space in Building 800 as more particularly outlined on Exhibit
"A" attached hereto ("Fifth Expansion Space") under the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the sum of $1.00, in hand well and
truly paid, and other good and valuable consideration, the receipt of which
is hereby
acknowledged, and in further consideration of the mutual premises and
covenants herein contained, the parties, intending to be legally bound, agree:
1. The Initial Lease, as amended, is sometimes referred to herein as
the "Lease." All other capitalized terms used in this Amendment shall have
the same meanings as assigned to them in the WHEREAS clauses of this
Amendment or the Lease, unless otherwise specifically noted. The provisions
of the WHEREAS clauses are incorporated herein as if fully set forth.
2. Commencing on the Fifth Expansion Space Commencement Date, as
defined in paragraph 3b below, the Lease is amended to redefine the term
"Demised Premises" to include the Original Premises, the First Expansion
Space, the Second Expansion Space, the Third Expansion Space, and the Fourth
Expansion Space for all purposes, provided that the following provisions
shall apply to the Fifth Expansion Space only notwithstanding any contrary
provisions of the Lease: (i) the term of the lease of Fifth Expansion Space
shall be five (5) years, terminating at 12:00 a.m. on the day before the
fifth (5th) anniversary of the Fifth Expansion Space Commencement Date (and
accordingly the lease of the Fifth Expansion Space shall continue after the
July 31, 2000 Expiration Date of the lease of the First Expansion Space, the
Second Expansion Space, the Third Expansion Space and the Fourth Expansion
Space, determined without regard to the Extension Option with respect to such
portions of the Demised Premises); (ii) the Extension Option provided in the
Initial Lease shall not apply to the Fifth Expansion Space; (iii) the first
and second termination options provided in the Initial Lease shall not apply
to the Fifth Expansion Space, provided, however, that Tenant shall have the
option to terminate the lease of the Fifth Expansion Space effective the day
before the fourth (4th) anniversary of the Fifth Expansion Space Commencement
Date, provided Tenant gives Landlord written notice of its election to
terminate at least six (6) months prior to such termination date, and
provided Tenant pays a termination fee to Landlord with said notice of
$16,834; (iv) Tenant's Proportionate Share with respect to the Fifth
Expansion Space only shall be 2.19% (3,544/161,519 sq. ft.); and (v) Base
Rent for the Fifth Expansion Space shall be $55,818.00 per year, payable in
advance in equal monthly installments of $4,651.50.
3. Landlord's Work.
a. Landlord hereby convenants and agrees with Tenant that
Landlord shall: (1) cause an architect selected by Landlord to consult with
Tenant concerning Tenant's construction improvement needs for occupancy of
the Fifth Expansion Space and to prepare architectural, electrical and
mechanical construction drawings, plans and specifications necessary to
construct the improvements, subject to approval by Landlord and Tenant (as
approved, the "Tenant Plans") to be made to the Fifth Expansion Space; (2)
cause a contractor or contractors selected by Landlord to construct the
improvements in the Fifth Expansion Space pursuant to the Tenant Plans with
the objective of completing Landlord's Work not later than July 15, 1996 (the
"Fifth Expansion Space Target Commencement Date"). Landlord's obligations
under the preceding clauses (1) and (2) are sometimes herein
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referred to together as "Landlord's Work". Tenant shall not request, nor
shall Landlord have any obligation to approve, improvements that are not
consistent with the quality of tenant improvements in the Building and class
"A" general office space. Landlord's Work shall not include furniture and
similar items not customarily included in "tenant improvements". Landlord's
Work shall be performed at Landlord's cost and expense, not to exceed the
amount of the $23,036 (the "Tenant Allowance"). In the event that (i) the
costs of Landlord's Work exceed the Tenant Allowance, or (ii) Tenant requests
changes in the Tenant Plans or Landlord's Work, which Landlord approves, and
which increase the cost of Landlord's Work, and if such change or changes
increase the cost of Landlord's Work to an amount in excess of the Tenant
Allowance, the costs in excess of the Tenant Allowance shall be paid promptly
by Tenant as additional rent hereunder. Tenant shall respond to any request
from Landlord or Landlord's architect or contractor for approvals,
authorizations to proceed or information in connection with Landlord's Work
within two (2) business days of a request.
b. The Fifth Expansion Space shall be deemed ready for occupancy
and Landlord's Work shall be deemed to have been substantially completed on
the date that: (i) Landlord's Work is complete except that minor or
insubstantial details of construction, mechanical adjustment, or decoration
remain to be performed, the non-completion of which do not materially
interfere with Tenant's use of the Fifth Expansion Space; and (ii) all
certificates of occupancy necessary for Tenant's occupancy of the Fifth
Expansion Space have been issued. Landlord shall provide copies of such
certificates of occupancy to Tenant upon request. Landlord shall provide Tenant
with notice of Landlord's substantial completion of Landlord's Work. Except as
hereinafter provided, the Fifth Expansion Space Commencement Date of this
Lease shall be the day that Landlord provides such notice. If Landlord's Work
requires any specialized permits or approvals due to the nature of Tenant's
use of specialized needs, Tenant shall be responsible for and shall obtain
all such permits and approvals. At or prior to the Fifth Expansion Space
Commencement Date, representatives of Landlord and Tenant shall inspect the
Fifth Expansion Space and shall cooperate in producing and signing a punch
list identifying Landlord's Work which has either not been completed or which
has not been completed properly, and Landlord shall cause all items on such
agreed punch list to be diligently completed or corrected, but such items
shall not cause a postponement in the Fifth Expansion Space Commencement Date.
c. If the occurrence of the conditions listed in subsection b.
above, and thereby the making of the Fifth Expansion Space ready for
occupancy, shall be delayed due to:
i. Failure of Tenant to respond to any request from Landlord or
Landlord's architect or contractor for approvals, authorizations to proceed
or information in connection with the Tenant Plans and Landlord's Work within
two (2) business days of a request; or
ii. Changes in Landlord's Work which are requested by Tenant and
approved by Landlord; or
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iii. Any other negligent or wrongful act or omission of Tenant or
any of its employees, agents or contractors, then the Fifth Expansion Space
shall be deemed ready for occupancy on the date when they would have been
ready but for such delay (certified to Tenant in writing by Landlord's
architect), and the Date of Substantial Completion shall be deemed to occur
on such earlier date.
d. If and when Tenant shall take actual possession of the Fifth
Expansion Space, it shall be conclusively presumed that the same was in
satisfactory condition as of the date of such taking of possession, unless
within twenty (20) days after such date Tenant shall give Landlord notice
specifying the respects in which the Fifth Expansion Space was not in
satisfactory condition.
e. If Landlord shall be unable to give possession of the Fifth
Expansion Space on the Fifth Expansion Space Target Commencement Date by
reason of the holding over or retention of possession of any tenant or
occupant, or if repairs, improvements or decoration of the Fifth Expansion
Space are not completed, or for any other reason, Landlord shall not be
subject to any liability for the failure to give possession on said date.
Instead, Landlord shall use reasonable efforts to provide possessions of the
Fifth Expansion Space as soon as possible after the Fifth Expansion Space
Target Commencement Date. No such failure to give possession on the Fifth
Expansion Space Target Commencement Date shall in any other respect affect the
validity of this Lease or the obligation of Tenant hereunder.
f. By taking possession of the Fifth Expansion Space, Tenant
shall be deemed to have accepted the Fifth Expansion Space as being in good
sanitary order, condition and repair, except for the deficiencies identified
in writing by Tenant as provided in subsection d. above. Tenant shall, at
Tenant's sole cost and expense, keep the Fifth Expansion Space and every part
thereof in good condition and repair, damage thereto from fire or other
casualty and ordinary wear and tear, condemnation, and from the negligence or
misconduct of Landlord, its agents, employees, invitees, contractors,
subcontractors, and others for whom Landlord is legally responsible, alone
excepted. Landlord shall have no obligation whatsoever to alter, remodel,
improve, repair, decorate or paint the Fifth Expansion Space or any part
thereof except as otherwise expressly provided herein or agreed upon in
writing by Landlord, and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Fifth Expansion
Space or the Building except as specifically herein set forth in writing.
4. Tenant and Landlord agree that Tenant has no further expansion
options under the Lease, and that Tenant has no extension option with
respect to the Fifth Expansion Space.
5. ALL TIMES HEREIN AND IN THE LEASE ARE AND REMAIN OF THE ESSENCE.
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6. Except as modified herein, all terms and conditions of the Lease
shall remain in full force and effect. In the event of any inconsistency
between the terms of this Amendment and the terms of the Lease, the terms of
this Amendment shall prevail. The Lease and this Amendment represent the
entire agreement between the parties relating to the lease of the Premises
and shall supersede any other agreements, whether written or oral. There are
no understandings, representations or warranties of any kind, pertaining to
the lease of the Premises which are not expressly set forth in this Amendment
and the Lease. ALL OF THE CONFESSIONS OF JUDGMENTS FOR DAMAGES AND POSSESSION
CONTAINED IN THE LEASE ARE HEREBY RATIFIED, CONFIRMED AND RESTATED BY TENANT
AND ARE INCORPORATED HEREIN BY REFERENCE AS THOUGH SET FORTH IN THEIR
ENTIRETY.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
on the date first above mentioned.
LANDLORD:
WEST VALLEY BUSINESS TRUST
By: /s/ Robert W. Zwengler
-----------------------
an officer and not individually
TENANT
INFONAUTICS CORPORATION, a
Pennsylvania corporation
By: /s/ Ronald A. Berg
-----------------------
Name:
Title:
Attest: /s/ Donna Laquintano
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[Corporate Seal]
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Map of
West Valley
Business Center
Site Plan Exhibit "A"