EXHIBIT 10.17
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AGREEMENT OF LEASE
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AGREEMENT OF LEASE made this _____ day of June ___, 1996, by and between
C/N HORSHAM TOWNE LIMITED PARTNERSHIP, a Pennsylvania limited partnership, c/o
Nichols Realty Services Company, a Pennsylvania limited partnership, with its
principal place of business at 16 Campus Boulevard, Newtown Square, Pennsylvania
19073, telefax no. 610-325-5622 ("Landlord"), party of the first part, and ASTEA
INTERNATIONAL, INC., a Delaware corporation, with its principal place of
business at 100 Highpoint Drive, Chalfont, PA 18914, telefax no. 215-997-0871
("Tenant"), party of the second part.
WITNESSETH THAT, for and in consideration of the rents, covenants and
agreements herein contained and intending to be legally bound hereby, the
parties hereto covenant and agree as follows:
1. Reference Data. As used in this Lease, the following terms shall be
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defined as indicated and refer to the data set forth in this Section 1.
LANDLORD'S ADDRESS: c/o Nichols Realty Services Company
16 Campus Boulevard, Suite 150
Newtown Square, PA 19073
TENANT'S ADDRESS
ON COMMENCEMENT DATE: 455 Business Center Drive, Suite _____
Horsham, PA 19044
PREMISES "A": that 33,505 square foot portion of the building (the "Building")
owned by Landlord situated on certain land located at 455
Business Center Drive in Horsham Township, Montgomery County,
Pennsylvania (the "Land") in the Horsham Business Center (the
"Business Park"), as further identified in Exhibit "A" attached
hereto and made a part hereof. Landlord shall provide to Tenant
the method by which square footage in the Building is calculated.
PREMISES "B": that 18,000 square foot portion of the Building, as further
identified in Exhibit "A" attached hereto and made a part hereof.
PREMISES "A" SCHEDULED COMMENCEMENT DATE: August 19, 1996
PREMISES "B" SCHEDULED COMMENCEMENT DATE: Between October 1, 1997, and December
1, 1997. Within sixty (60) days from the date hereof, Landlord shall
notify Tenant in writing as to the exact Premises "B" Scheduled
Commencement Date.
TERM: Seventy-four (74) months after the Premises "A" Commencement Date or
Sixty (60) months after the Premises "B" Commencement Date, whichever
is later.
PREMISES "A" BASE RENT: $577,961.25 per year ($17.25 psf), in monthly
installments of $48,163,44.
PREMISES "B" BASE RENT: $310,500.00 per year ($17.25 psf), in monthly
installments of $25,875.00.
LEASE YEAR: Any twelve (12) month period beginning on the Premises "A"
Commencement Date or any anniversary thereof.
FIXED RENT: Base Rent plus Operating Expense Allowance.
ADDITIONAL RENT: Sums not including Fixed Rent which Tenant is obligated to
pay to Landlord from time to time pursuant to the terms of
this Lease.
TENANT'S PREMISES "A"
PROPORTIONATE SHARE: 65.05% (determined by dividing the area of the Premises by
the area of the Building [51,505]).
TENANT'S PREMISES "B"
PROPORTIONATE SHARE: 34.95% (determined by dividing the area of the Premises by
the area of the Building [51,505]).
PERMITTED USES: Tenant shall use and occupy the Premises for general office and
other related functions of the software business (provided all
such functions comply with applicable requirements) and for no
other purpose.
2. Demise. Landlord hereby demises and lets to Tenant and Tenant hereby
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hires and leases from Landlord the Premises, TOGETHER WITH, appurtenant to the
Premises, the right to use in common with Landlord and other tenants, occupants
and visitors to the Building, the common driveways, parking lots,
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walkways and sidewalks of the Business Park and the Land and whatever facilities
may be located in or about the Building (collectively, the "Common Facilities").
Landlord represents to Tenant that the parking lots presently constructed on the
Land contain at least five parking spaces for every 1,000 square feet of
rentable area. Tenant shall have the right to use such parking spaces on a non-
reserved basis. Notwithstanding the above, Landlord shall designate one reserved
parking space for Tenant's exclusive use as of the Premises "A" Commencement
Date. In addition, Landlord shall designate a total of fifteen parking spaces
along the side of the building facing Business Center Drive for Tenant's
exclusive use as of the Premises "B" Commencement Date.
3. Construction by Landlord.
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a. Landlord shall complete, alter or improve Premises "A" in
accordance with the plans and specifications listed on Exhibit "B" and made a
part hereof (the "Premises "A" Plans"), all work to be done in compliance with
applicable laws and ordinances governing same (the "Premises 'A' Improvements").
Tenant hereby approves the Premises "A" Plans attached hereto as Exhibit "B."
b. Landlord shall complete, alter or improve Premises "B" in
accordance with the plans and specifications listed on Exhibit "C" and made a
part hereof (the "Premises "B" Plans"), all work to be done in compliance with
applicable laws and ordinances governing same (the "Premises 'B' Improvements").
c. Landlord and Tenant shall appoint construction representatives to
act for each of them with respect to all construction and construction related
matters involving the Improvements. The construction representatives shall be
available to attend regularly scheduled and special meetings throughout the
construction process including but not limited to bidding process and on-site
job meetings.
Tenant's Construction Representative shall be David W. Hinson or his
designee from Ballinger - (215) 665-0900.
Landlord's Construction Representative shall be Kevin Nichols or his
designee - (610)-325-5600.
d. Landlord and Tenant acknowledge that the General Contractor
selected to construct the Premises "A" and Premises "B" Improvements is Fricker
Construction Co. If
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possible, each trade will be bid to at least three subcontractors. Tenant shall
have the right to review all bids and participate in the selection of the
subcontractor for each trade.
e. If Landlord deems any changes, additions or alterations in either
the Premises "A" Plans or the Premises "B" Plans necessary in connection with
the construction of the Premises, such changes, additions or alterations shall
be submitted to Tenant for approval, which approval shall not be unreasonably
withheld or delayed and shall be deemed to be given if not disapproved in
writing within three (3) days after Landlord's submission of the same to Tenant.
Any dispute as to the content of such changes, additions or alterations may, at
the option of either party hereto, be conclusively determined by the independent
architect or engineer retained by Landlord ("Landlord's Architect").
f. As used herein, "Substantial Completion" shall mean the dates (for
Premises "A" and "B") when Landlord obtains at least a temporary certificate of
occupancy permitting Tenant to occupy and use the applicable space for its
intended use and Tenant's architect, Ballinger, issues a certificate of
substantial completion for such space. In the event Ballinger refuses to issue
a certificate of substantial completion and Landlord believes that the
applicable Premises have, in fact, been substantially completed, the dispute
between Ballinger and Landlord shall be resolved by Landlord's Architect.
g. The Premises "A" Improvements shall be Substantially Completed on
or before the Premises "A" Scheduled Commencement Date, provided that the
Premises "A" Scheduled Commencement Date shall be extended for the time
equivalent to any time lost by Landlord due to strikes, labor disputes,
governmental restrictions or limitations, scarcity of or inability to obtain
material, accidents, fire or other casualties, weather conditions, or any cause
similar or dissimilar to the foregoing beyond the reasonable control of
Landlord.
h. The Premises "B" Improvements shall be Substantially Completed on
or before the Premises "B" Scheduled Commencement Date, provided that the
Premises "B" Scheduled Commencement Date shall be extended for the time
equivalent to any time lost by Landlord due to strikes, labor disputes,
governmental restrictions or limitations, scarcity of or inability to obtain
material, accidents, fire or other
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casualties, weather conditions, or any cause similar or dissimilar to the
foregoing beyond the reasonable control of Landlord.
i. In the event that the Premises "A" Improvements are not
Substantially Completed by August 30, 1996, due to a Landlord Delay (as
hereinafter defined), Tenant shall receive a day for day accumulation of free
Base Rent to be applied to the Lease Term as of the actual Commencement Date. To
the extent Landlord Delay constitutes a period of one hundred twenty (120) days
or greater, Tenant may cancel the Lease at its sole option provided Tenant
elects to terminate the lease as of such 120th day by giving Landlord less than
ten days prior written notice and provided further Landlord thereafter fails to
substantially complete Premises "A" prior to the 120th day. The term "Landlord
Delay" as used herein means any delay in the date of Substantial Completion of
the Improvement which is due to any cause other than Force Majeure or delays
caused by Tenant. In the event that the Premises "B" Improvements are not
Substantially Completed within fifteen (15) days after the Premises "B"
Scheduled Commencement Date due to a Landlord Delay, Tenant shall receive a day
for day accumulation of free Base Rent for Premises "B" to be applied to the
Lease Term as of the actual Premises "B" Commencement Date.
j. At the applicable Commencement Date with respect to any portion of
the Premises as to which Landlord is to perform work, Tenant shall furnish
Landlord with a list of those specific items that are defective, deficient, or
incomplete or not completed in accordance with the applicable Final Plans
("Punch List Items"). Landlord shall use its best efforts to complete or correct
all such Punch List Items within thirty (30) days after Tenant delivers such
list to Landlord.
k. Tenant and its authorized agents, employees and contractors shall
have the right, at Tenant's own risk, expense and responsibility, at all
reasonable times prior to the Commencement Date to enter the Premises for the
purpose of taking measurements and installing its furnishings, fixtures and
equipment, provided that Tenant, in so doing, shall comply with the following
provisions:
(1) Tenant shall first obtain the approval of Landlord, in
writing, of the specific work it proposes to perform and shall furnish
Landlord with reasonably detailed plans and specifications
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therefor (such approval not to be unreasonably withheld);
(2) The work shall be performed by responsible contractors and
subcontractors who shall not prejudice Landlord's relationship with
Landlord's contractors or subcontractors or the relationship between
such contractors and their subcontractors or employees, or disturb
harmonious labor relations, and who shall furnish in advance and
maintain in effect Workmen's Compensation Insurance in accordance with
statutory requirements and comprehensive public liability insurance
(naming Landlord and Landlord's contractors and subcontractors as
additional insureds) with limits satisfactory to Landlord;
(3) No such work shall be performed in such manner or at such
times as to cause any delay in connection with any work being done by
any of Landlord's contractors or subcontractors in the Premises or in
the Building generally (Landlord agrees to notify Tenant of any such
delay promptly after Landlord learns of the same);
(4) Tenant and its contractors and subcontractors shall be solely
responsible for the transportation, safekeeping and storage of
materials and equipment used in the performance of such work, for the
removal of waste and debris resulting therefrom, and for any damage
caused by them to any installations or work performed by Landlord's
contractors and subcontractors.
l. Landlord shall be responsible to make any repairs necessitated by
defective workmanship or materials in the aforesaid work, provided that such
defect appears and Tenant gives Landlord written notice thereof during the first
one hundred eighty (180) days of the Term.
m. Tenant shall receive an allowance from Landlord in the amount of
$1,287,625 [$25 psf x (33,505 + 18,000)] to complete the improvements shown on
Exhibits "B" and "C" (the "Construction Allowance"). The Construction Allowance
shall first be applied toward all costs associated with the design and
construction of the improvements shown on Exhibits "B" and "C", including the
cost to install a card access security
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system, with Tenant responsible for any cost thereof in excess of the
Construction Allowance. To the extent the cost of completing the improvements
shown on either Exhibit "B" or "C" shall exceed the applicable Construction
Allowance, Tenant shall reimburse Landlord for such difference immediately upon
being billed therefor as Additional Rent. Tenant shall have the right to apply
up to $200,000 of the Construction Allowance toward moving expenses and the cost
of any permanent tenant improvements installed in the Premises by Tenant such as
cabling and wiring, provided that Tenant shall provide documentation reasonably
satisfactory to Landlord detailing each such expenditure. Landlord shall
reimburse Tenant for such expenses within thirty (30) days after being billed
therefor or Landlord shall pay directly the vendor providing the services, as
requested by Tenant.
4. Term. a. The Term shall commence on the earlier of (the
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"Premises "A" Commencement Date"): (i) the date when Tenant, with Landlord's
consent, assumes possession of Premises "A" or any part thereof (except for the
purposes set forth in subsection 3(k) above), or (ii) the date that Premises "A"
are Substantially Completed as defined in Section 3 above.
b. The "Premises "B" Commencement Date" shall occur on the earlier of:
(i) the date when Tenant, with Landlord's consent, assumes possession of
Premises "B" or any part thereof (except for the purposes set forth in
subsection 3(k) above), or (ii) the fifth (5th) consecutive business day
following Landlord's notice to Tenant that Premises "B" are Substantially
Completed.
c. The commencement and expiration dates of the Term, when determined
as above provided, shall be confirmed by an addendum to this Lease.
d. Tenant shall have the option to renew this Lease for an additional
term of five (5) years provided that Tenant shall not be in default hereunder
either at the time Tenant exercises the option or on the Commencement Date of
the renewal term and further provided that Tenant shall exercise such option in
writing not later than twelve (12) months prior to the expiration of the initial
Term upon the same terms and conditions of this Lease (including, without
limitation, the obligation to pay Operating Expense Adjustment) except that the
annual Base Rent during such renewal term shall equal $994,046.50 ($19.30 psf).
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e. Provided Tenant shall have exercised the foregoing option, Tenant
shall have the further option to renew this Lease for an additional term of five
(5) years provided Tenant shall not be in default hereunder either at the time
Tenant exercises the option or on the Commencement Date of the second renewal
term and further provided that Tenant shall exercise such option in writing not
later than twelve (12) months prior to the expiration of the first renewal term
upon the same terms and conditions of this Lease (including, without limitation,
the obligation to pay Operating Expense Adjustment) except that the annual Base
Rent during such second renewal term shall be the then fair market rental for
space leases in the Business Park. If the parties are unable to agree on the
Base Rent to be paid by Tenant during the renewal term, then each party shall
select one appraiser who shall be a member of the American Institute of Real
Estate Appraisers within ten days after the parties shall fail to reach
agreement (and if either party fails to make a selection within that period, the
right to do so shall be deemed waived), and the two appraisers shall then select
a third appraiser, again within a ten day period, to comprise an appraiser
panel. The panel shall then determine, within twenty days after the selection of
the third appraiser, "the then fair market rental for space leases in the
Business Park." Notwithstanding the above, the annual Base Rent payable during
such renewal term shall not be less than the annual Base Rent payable during the
first renewal Term.
5. Base Rent.
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a. Tenant shall pay to Landlord Base Rent during the Term hereof,
without notice or demand, in the monthly installments specified in Section 1, in
advance on the first day of each calendar month of the Term, at Landlord's
principal office as indicated in Section 1 above. The first month's installment
of Premises "A" Base Rent shall be payable upon the execution of this Lease. If
the Term commences other than on the first day of a calendar month, then the
installments of Base Rent for the first and last calendar months of the Term
shall be adjusted proportionately. Notwithstanding anything in this subsection
5(a) to the contrary, the Premises "A" Base Rent payable hereunder for the first
104 days of the Term shall equal $13,262.40 per month [$4.75 per square foot to
cover Tenant's Proportionate Share of Operating Expenses] to be prorated on a
per diem basis.
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b. Base Rent, Additional Rent and all other sums payable by Tenant
to Landlord hereunder shall be paid, without
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set-off or deduction, in lawful currency of the United States of America to
Landlord at the address set forth in Section 1 hereof, or at such other address
as Landlord may from time to time designate in writing to Tenant. In the event
that any such rent or other sums shall be unpaid on the expiration or
termination hereof, the obligation therefor shall survive such expiration or
termination of this Lease. In order to partially compensate Landlord for the
extra expense incurred in the handling of delinquent payments, Tenant agrees to
pay Landlord a late charge equal to the product obtained by multiplying each
installment of Fixed Rent Or Additional Rent not paid within ten (10) days after
its due date by five (5%) percent. Notwithstanding the above, Landlord agrees
not to assess such late charge until ten days have elapsed after Landlord has
given Tenant notice of such delinquency; provided, however, that Landlord shall
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have the right to assess such late charge without notice to Tenant in the event
Landlord has given Tenant notice of past delinquencies at least once during the
prior 12 months.
6. Rental Adjustments - Operating Expenses.
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a. As used in this Section 6 and Section 1 where applicable, the
following words and terms shall be defined as hereinafter set forth:
(1) "Operating Year" shall mean each calendar year, or other
period of twelve (12) months as hereinafter may be adopted by
Landlord as its fiscal year, occurring during the Term.
(2) "Operating Expense Adjustment" shall mean Tenant's
Proportionate Share of the excess of the actual Operating
Expenses for the current Operating Year over the actual
Operating Expenses for 1996 Operating Year. Except as set forth
in subsection e. below, there shall be no Operating Expense
Adjustment for the 1996 Operating Year.
(3) "Operating Expense Allowance" shall mean Landlord's
projection of the Operating Expense Adjustment for the current
Operating Year.
(4) "Operating Expense Statement" shall mean a statement in
writing signed by Landlord,
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setting forth in reasonable detail (a) the Operating Expense
for the preceding Operating Year, (b) Tenant's Proportionate
Share of the Operating Expense, (c) Operating Expense
Allowance, and (d) Tenant's Operating Expense Adjustment for
such Operating Year, or portion thereof. The Operating Expense
Statement for each Operating Year shall be available for
inspection by Tenant at Landlord's office during normal
business hours.
(5) "Operating Expense" shall mean the following expenses
incurred by Landlord in connection with the operation, repair
and maintenance of the Building and the Land:
(A) Real estate taxes and other taxes or charges levied
in lieu of such taxes; general and special public
assessments; charges imposed by any governmental
authority pursuant to anti-pollution or environmental
legislation; taxes on the rentals of the Building or
the use, occupancy or renting of space therein;
Landlord reserves the right to bill Tenant for a "lump
sum" reimbursement of the Operating Expense Adjustment
for the taxes and assessments payable hereunder, which
lump sum amount will be (a) payable upon receipt of
Landlord's statement therefor which will be forwarded
at or about the times during each Operating Year that
the respective taxing authority issues its tax bill,
and (b) comprised of Tenant's Proportionate Share of
such tax bill less the then accrued monthly amounts
already paid by Tenant in its Operating Expense
Allowance which are allowable to the real estate taxes
or assessments that are included in the bill issued by
the taxing authority. In the event that Landlord
exercises such right with respect to all tax bills that
are payable in any Operating Year, the
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monthly amounts due under this subparagraph (A) will
nonetheless be paid provided that no such lump sum
amount will be due thereafter unless the accrual of
such monthly amounts is insufficient to satisfy the
Tenant's prorata share of subsequent tax bills, in
which event the lump sum shall be only that which is
necessary to cover the shortage. If a lump sum is paid
by Tenant during the Term, the unused portion thereof,
if any, shall be refunded or credited to the Tenant
upon the expiration of the Term, unused being that
portion of the lump sum that is apportionable to a
period of the time subsequent to the expiration of the
Term.
(B) Premiums and fees for fire and extended coverage
insurance, insurance against loss of rentals for space
in the Building and public liability insurance, all in
amounts and coverages (with additional policies against
additional risks) as may be required by Landlord or the
holder of any mortgage on the Building;
(C) Water and sewer service charges, electricity, heat,
air-conditioning and other utility charges not
separately metered to tenants in the Building;
(D) Maintenance and repair costs, including repairs and
replacement described in Section 8 below; repairs and
replacements of supplies and equipment; snow and trash
removal; repair and maintenance of all Common
Facilities; janitorial services; landscaping, lawn and
general grounds upkeep, maintenance and repair; the
cost of the maintenance contract for the Building's
heating, ventilating and air conditioning system; and
the costs of
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all labor, material and supplies incidental thereto;
(E) Wages, salaries, fees and other compensation and
payments and payroll taxes and contributions to any
social security, unemployment insurance, welfare,
pension or similar fund and payments for other fringe
benefits required by law, union agreement or otherwise
made to or on behalf of all employees of Landlord
performing services rendered in connection with the
operation and maintenance of the Building and/or Land,
including, without limitation, payments made directly
to or through independent contractors for performance
of such services or for the servicing of maintenance
contracts;
(F) Management fees payable to the managing agent for
the Building or Business Park;
(G) Any and all assessments paid by Landlord for the
repair, maintenance and upkeep of Common Facilities
located in the Business Park. For the purposes of this
subparagraph (G), such assessments shall equal the
product obtained by multiplying the total assessments
paid by Landlord by a fraction, the numerator of which
shall be the number of square feet in the Building as
set forth in Section 1 above, and the denominator of
which shall be the total number of square feet in all
buildings in the Business Park subject to the
assessment; and
(H) Any and all other expenditures of Landlord incurred
in connection with the operation, repair or maintenance
of the Premises, the Building or the Land which are
properly expensed (or regarded as "deferred expenses")
in accordance with generally accepted accounting
principles
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consistently applied in the operation, maintenance, and
repair of a first-class office building facility.
Included herewith are items of expense designed to
result in savings or reductions in Operating Expenses
as hereinabove described to the extent such savings or
reductions are greater than the expense incurred, in
the event of which, the corresponding items shall be
deducted from the Operating Expense Allowance for the
Operating Year in which the expenditure was made.
(I) Landlord hereby agrees that the Building shall at
all times comply with the Americans with Disabilities
Act of 1990, together with all amendments thereto which
may be adopted from time to time, and all regulations
and rules promulgated thereunder (collectively, the
"ADA"). Any and all such compliance shall be at
Landlord's sole cost and expense, except for new
regulations or amendments to the ADA which pertain
solely to the Premises and which become effective after
the Commencement Date of this Lease, which shall be the
responsibility of Tenant, and except as set forth in
subsection (b) below. With regard to the ADA:
(a) Landlord warrants and represents to Tenant that any
and all areas, including common areas, of the Building
outside the Premises comply with and satisfy any and
all requirements of accessibility as required by the
ADA in effect as of the Commencement Date;
(b) Landlord agrees that any improvements or
modifications made to the Building required by
amendments to or subsequent regulations under the ADA
which become effective after the Commencement Date of
this Lease:
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(1) shall be made by Landlord in a cost effective
manner;
(2) shall only be included in Operating Expenses
after being amortized over the useful life
of such improvement or modification; and
(3) in no event shall the cost of any
improvement or modification made to the
premises of any tenant in the Building be
included in Operating Expenses.
(c) Tenant agrees to make any improvements or
modifications to the Premises required by amendments to
or subsequent regulations under the ADA which become
effective after the Commencement Date.
Landlord shall hold Tenant, its agents, successors, assigns,
employees and invitees, harmless from liability for damages and losses suffered
by any person, including personal injury, death or property damage, including
reasonable legal fees, costs, and expenses, caused directly or indirectly by the
Building's failure to comply with the ADA. Tenant shall hold Landlord, its
agents, successors, assigns, employees and invitees, harmless from liability for
damages and losses suffered by any person, including personal injury, death or
property damage, including reasonable legal fees, costs, and expenses, caused
directly or indirectly by the Premises' failure to comply with Amendments to or
subsequent regulations under the ADA which become effective after the
Commencement Date.
Items of Operating Expense which are not exclusively incurred with
respect to the Building by reason of the nature of the items or otherwise shall
be equitably allocated by Landlord among the buildings to which the same relate
or for whose benefit the same have been incurred, and only the portion allocated
to the Building shall be included in calculating the Operating Expense for the
Building.
The term "Operating Expense" shall not include:
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(i) depreciation on the Building or equipment therein;
(ii) mortgage interest;
(iii) net income, franchise or capital stock taxes payable by Landlord;
(iv) executive salaries;
(v) real estate brokers, commission or the costs of services provided
specially for any particular tenant at such tenant's expense and
not uniformly available to all tenants of the Building;
(vi) any ground lease rental;
(vii) capital expenditures required by Landlord's failure to comply
with laws enacted on or before the date of this Lease;
(viii) costs incurred by Landlord for the repair of damage to the
Building, to the extent that Landlord is reimbursed by insurance
proceeds;
(ix) costs, including permits, licenses and inspection costs, incurred
with respect to the installation of tenant improvements, made for
tenants in the Building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for
Tenant or other occupants of the Building;
(x) depreciation and amortization, except as provided in this list
of exclusion, and except on materials, tools, supplies and
vendor-type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a
third party where such depreciation and amortization would
otherwise have been included in the charge for such third party's
services, all as determined in accordance with generally accepted
principles, consistently applied, and when depreciation or
amortization is permitted or required, the item shall be
amortized over its reasonably anticipated useful life;
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(xi) leasing commissions, attorneys' fees, and other costs and
expenses incurred in connection with negotiations or disputes
with prospective tenants of the Building or litigation to collect
rent from tenants of the Building;
(xii) the costs or services rendered by any person or entity related to
or affiliated with Landlord which is in excess of commercially
reasonable rates for such services;
(xiii) expenses in connection with services or other benefits which are
not offered to Tenant or for which Tenant is charged directly but
which are not provided to another tenant or occupant of the
Building;
(xiv) overhead and profit increments paid to Landlord or to
subsidiaries or affiliates of Landlord for services in the
Building to the extent the same exceed the cost of such services
which is typical of a Class A office building in the Pennsylvania
Suburb of Philadelphia;
(xv) interest, principal, points and fees on debt or amortization on
any mortgage or mortgages or any other debt instrument
encumbering the Building;
(xvi) Landlord's general corporate overhead and general administrative
expenses;
(xvii) all items and services for which Tenant or any other tenant of
the Building reimburses Landlord and which Landlord provided
selectively to one or more tenants (other than Tenant) without
reimbursement;
(xviii) electric power costs of which any tenant directly contracts with
the local public service company;
(xix) tax penalties incurred as a result of Landlord's negligence or
inability or unwillingness to make payments when due;
(xx) any other expenses which, in accordance with generally accepted
accounting principles, consistently applied, would not normally
be
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treated as an Operating Expense by landlords of comparable office
buildings;
(xxi) costs incurred by Landlord due to the violation by Landlord or
any other tenant of the terms and conditions of any lease of
space in the Building;
(xxii) rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment ordinarily
considered to be of a capital nature, except equipment not
affixed to the Building which is used in providing janitorial or
similar services; and
(xxiii) except as otherwise specifically set forth in this Lease, costs
incurred by Landlord for improvements which are considered
capital improvements and replacements under generally accepted
accounting principles consistently apply.
b. Tenant shall pay as Additional Rent to Landlord the Operating
Expenses Adjustment, which shall be comprised of the Operating Expense Allowance
plus any adjustment thereto as set forth in subsection 6d below.
c. If Tenant's Proportionate Share of Operating Expense for any
Operating Year shall be greater (or less) than Tenant's total Operating Expense
Allowance for the same year, Tenant shall pay to Landlord as Additional Rent (or
Landlord shall credit to Tenant as hereinafter provided) an amount equal to the
difference (the amount of such difference is hereinafter referred to as the
"Operating Expense Adjustment"). If Tenant occupies the Premises or a portion
thereof for less than a full Operating Year, the Operating Expense Adjustment
will be calculated in proportion to the amount of time in such Operating Year
that Tenant occupied the Premises.
d. Such Operating Expense Adjustment shall be paid in the
following manner: within one hundred twenty (120) days following the end of the
first and each succeeding Operating Year, Landlord shall furnish Tenant an
Operating Expense Statement setting forth (i) the Operating Expense for the
preceding Operating Year, (ii) the Operating Expense Allowance for said
Operating Year, and (iii) Tenant's Operating Expense Adjustment for such
Operating Year. Within thirty (30) days
-17-
following the receipt of such Operating Expense Statement (the "Expense
Adjustment Date") (A) Tenant shall pay to Landlord as Additional Rent the
Operating Expense Adjustment for such Operating Year, or (B) in the event that
(ii) should exceed (i), the excess amount shall be divided by twelve (12) and
the resultant sum shall be credited against the monthly payments of the
Operating Expense Allowance for the Operating Year then commencing.
e. Commencing with the first month of the 1997 Operating Year (and
continuing on the first month of each succeeding Operating Year thereafter
during the Term hereof), Tenant shall pay to Landlord the 1997 Operating Year
Operating Expense Allowance equal to one-twelfth (1/12th) of the estimated
Operating Expense Adjustment for such Operating Year, which estimated figure
will be included in the aforesaid Operating Expense Statement or given to Tenant
as soon thereafter as it is determined by Landlord. On the next succeeding
Expense Adjustment Date, Tenant shall pay to Landlord (or Landlord shall credit
to Tenant) any deficiency (or excess) between the installments paid on account
of the preceding year's Operating Expense Adjustment and the actual Operating
Expense Adjustment for such Operating Year. Notwithstanding anything in this
paragraph to the contrary, with regard to the 1996 Operating Year, Tenant shall
reimburse Landlord for any costs of snow and ice removal in excess of 10c per
square foot.
f. In calculating the annual Operating Expenses listed in
subsections (C), (D), (E) and (F) above, if for thirty (30) or more days during
the Operating Year less than ninety-five (95%) percent of the rentable area of
the Building shall have been occupied by tenants, then the annual Operating
Expense attributable to the four subsections listed above shall be deemed for
such Operating Year to be amounts equal to the like expenses which would
normally be expected to be incurred had such occupancy of the Building been at
ninety-five (95%) percent throughout such year, as reasonably determined by
Landlord and provided further that if during any Operating Year, Landlord shall
not furnish any item or items of Operating Expenses to any portion of the
Building because such portions are not occupied or because such item is not
required by the lessee of such portion, for the purposes of computing Operating
Expenses, an equitable adjustment shall be made so that the item of Operating
Expense in question shall be shared by tenants receiving the benefits thereof.
-18-
g. During the calendar year in which the Term ends, Landlord shall
have the right to submit to Tenant a statement of Landlord's reasonable estimate
of the Operating Expense Adjustment during the period (the "final period")
beginning on the first day of the final Operating Year of the Term or, if later,
the date of the immediately preceding Operating Expense Adjustment, and ending
on the final day of the Term. Upon the earlier to occur of the thirtieth (30th)
day following Tenant's receipt of such statement or the final day of the Term,
Tenant shall pay to Landlord said estimated Operating Expense Adjustment minus
the total amount of payments previously made by Tenant pursuant to this section
during the final period. If requested by Tenant, Landlord shall submit to Tenant
a statement setting forth the actual amount of said Operating Expense Adjustment
after Landlord's final calculation of same, and within thirty (30) days after
Tenant's receipt of such statement, Tenant shall pay to Landlord the amount
shown thereon.
Tenant shall have the right to audit the Operating Expense Statement
subject to the following conditions: (a) Tenant must audit the Operating Expense
Statement within sixty (60) days after receiving the Operating Expense Statement
from Landlord; (b) Tenant shall give Landlord not less than fifteen (15) days'
prior written notice of Tenant's desire to audit the Operating Expense
Statement; (c) the audit shall be conducted in Landlord's offices during normal
business hours; and (d) Tenant shall bear the entire cost of such audit. In the
event such audit reveals any discrepancies from the Operating Expense Statement,
the Tenant's Proportionate Share of Operating Expense shall be adjusted as set
forth above in subsection 6(d).
7. Option to Lease Additional Space. Tenant shall have the option to
--------------------------------
lease either or both portions of the building located at 255 Business Center
Drive outlined on Exhibits "D-1" or "D-2" attached hereto and made a part hereof
(the "Option Space") provided (i) Tenant shall notify Landlord of its election
to exercise its option within sixty (60) days after the Premises "A"
Commencement Date, (ii) Tenant shall not be in default hereunder at the time it
exercises the option or on the Commencement Date for the lease covering the
Option Space, and (iii) Tenant's tangible net worth on the Option Space
Commencement Date shall be at least equal to its tangible net worth as of the
date hereof. As of the date hereof, Tenant's tangible net worth is $46,400,000.
The lease for the Option Space shall have a term equal to the remainder
of the Term of this Lease. Such lease shall be
-19-
upon the terms and rates, including leasehold improvement allowance and renewal
rights, included in this Lease. The lease shall be substantially in the form of
this Lease. The lease must be executed by Tenant within fifteen (15) days after
Tenant receives the lease from Landlord. If Tenant fails to execute the lease as
set forth above within fifteen (15) days after exercise of its option for any
reason, then the option to lease set forth in this Section 7 shall terminate
absolutely and without further notice. The improvements to the Option Space
shall be similar in quantity and quality to those provided in Premises "A" and
"B". The Option Space Scheduled Commencement Date shall be the earlier of (i)
July 1, 1997, or (ii) the date on which the Option Space is Substantially
Completed.
8. Landlord's Services. So long as Tenant is not in default
-------------------
hereunder, Landlord shall:
a. Regularly on business days clean or cause the Premises and the
Building to be kept clean to the standards set forth in Exhibit "E" attached
hereto and made a part hereof, provided the same are kept in order by Tenant.
b. Arrange for all required utility services to the Premises;
provided, however, that Landlord shall not be liable to Tenant for any
- -------- -------
loss or damage arising from interruption in such utility services.
c. Provide the services referenced in subsection 6(a)(4)(D) above.
d. Make all repairs necessary to maintain the plumbing and
electrical systems, windows, floors (excluding carpeting), and all other items
which constitute a part of the Premises and are installed or furnished by
Landlord, except repairs to Tenant's trade fixtures and property and
installations which Tenant is obligated to make or which were performed by
Landlord at Tenant's request; provided , however, that Landlord shall not be
-------- -------
obligated for any of such repairs until the expiration of a reasonable period or
time after written notice from Tenant that such repair is needed. In no event
shall Landlord be obligated under this paragraph to repair any damage caused by
any act, omission or negligence of Tenant or its employees, agents, invitees,
licenses, subtenants, or contractors.
Notwithstanding the terms and conditions of the previous paragraph, at
Landlord's sole cost and expense, Landlord
-20-
shall be responsible for the maintenance and replacement of the primary heating,
ventilation and air conditioning systems in the Building (including individual
heat pumps), including the duct work servicing such systems, the existing
primary electrical service to each floor of the Building, the existing base
sprinkler loop within each floor, required renovations and modifications to the
restrooms and required modifications or renovations to the restrooms, elevators,
lobby areas and other building common areas required by the Americans with
Disabilities Act. Except as specifically set forth above or as otherwise herein
provided, all other expenses incurred by Landlord in maintaining the Building,
the Premises and the Land shall be Operating Expenses.
Tenant shall take good care of the Premises and the fixtures and
appurtenances therein. Tenant shall, at its sole cost and expense, repair and
replace all damage or injury to the Premises and the Building and to fixtures
and equipment caused by Tenant or its employees, agents, invitees, licensees,
subtenants, or contractors, or as the result of all or any of them moving in or
out of the Building or by installation or removal of furniture, fixtures or
other property, which repairs and replacements shall be in quality and class
equal to the original work or installations. If Tenant fails to make such
repairs or replacements, the same may be made by Landlord and such expense shall
be collectible as Additional Rent and paid by Tenant within fifteen (15) days
after rendition of a bill therefor.
Landlord shall not be liable by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations,
additions or improvements in or to the Premises or the Building or to any
appurtenances or equipment therein. Except as expressly provided in Sections 11
and 12 hereof, there shall be no abatement of rent because of such repairs,
alterations, additions or improvements.
9. No Other Services by Landlord. Landlord shall not be required to
-----------------------------
render any services to Tenant or to make any repairs or replacements to the
Premises, except as provided in Sections 3, 8, 11 and 12 hereof. Without
limiting the generality of the foregoing, it is specifically understood and
agreed that Tenant shall be solely responsible for all costs of electricity
consumed or used in the Premises. In the event PECO Energy is unwilling to bill
Tenant directly for electricity consumed or used in the Premises, Landlord shall
have the right to submeter the Premises at Landlord's expense and to bill Tenant
monthly an amount equal to Landlord's reasonable estimate of Tenant's
-21-
electrical consumption against actual meter readings for the prior three (3)
months. In the event Tenant has consumed more electricity than is reflected by
the estimated monthly payments, then Tenant shall pay for such excess electrical
consumption within ten (10) days after receipt of a bill therefor from Landlord.
In the event that Tenant's monthly installments exceed Tenant's actual
electrical consumption, then the excess shall be credited against the next
estimated monthly payment due by Tenant.
10. Insurance.
---------
a. Tenant, at Tenant's expense, shall maintain in effect throughout
the Term, through insurance carriers reasonably satisfactory to Landlord,
insurance against claims for personal injury (including death) and property
damage, under a policy of general public liability insurance, in amounts not
less than Two Million ($2,000,000.00) Dollars combined single limit in respect
of bodily injury (including death) and Five Hundred Thousand ($500,000.00)
Dollars for property damage. The insurance policy shall name both Landlord and
Tenant as insured parties. In addition, Tenant at all times shall maintain fire
and extended coverage insurance insuring its interest in all furniture,
fixtures, equipment, supplies and other personal property located in the
Premises or elsewhere in the Building and all tenant improvements to the
Premises, for the full insurable replacement cost thereof.
b. Prior to the commencement of the Term, Tenant shall provide
Landlord with certificates of the insurance policies herein required of Tenant.
All policies shall provide that coverage thereunder may not be reduced or
terminated without at least thirty (30) days prior written notice to Landlord.
Tenant shall furnish to Landlord throughout the Term replacement certificates at
least thirty (30) days prior to the expiration date of the then current policies
and, upon request of Landlord, shall supply to Landlord copies of all policies
herein required of Tenant.
c. Landlord shall maintain and keep in effect throughout the Term of
this Lease insurance against loss or damage to the Building by fire or such
other casualties as may be included within either fire and extended coverage
insurance or all-risk insurance and such other insurance as Landlord may desire
or as may reasonably be required from time to time by any mortgagee. Tenant
shall pay to Landlord its Proportionate Share
-22-
of the premiums to be paid by Landlord for such insurance in accordance with
Section 6 above.
d. Each of the parties hereto hereby releases the other from all
liability for all injury, loss or damage which may be inflicted upon the
property of such party, even if such liability results from the negligence of
the other party; provided, however, that this release shall be effective only
-------- -------
(i) during such time as the applicable insurance policy carried by such party
names the other party as a co-insured or contains a clause to the effect that
this release shall not affect said policy or the right of the insured to recover
thereunder, and (ii) to the extent of the coverage of such policy. If any policy
does not permit such a waiver, and if the party to benefit therefrom requests
that such a waiver be obtained, the other party agrees to obtain an endorsement
to its insurance policies permitting such waiver of subrogation, if available,
and if an additional premium is charged for such waiver, the party benefiting
therefrom shall pay same promptly upon being billed therefor.
11. Casualty.
--------
a. If the Premises are damaged by fire or other casualty, Tenant
shall promptly notify Landlord and Landlord shall repair the damaged portions of
the Premises (but not any of Tenant's property therein or improvements or
alterations made by Tenant), except that if (i) in Landlord's reasonable
judgment, the damage would require more than ninety (90) days of work to repair,
(ii) the insurance proceeds (excluding rent insurance) which Landlord
anticipates receiving must be applied to repay any mortgages encumbering the
Building or are otherwise inadequate to pay the cost of such repair, or (iii)
damage occurs during the last year of the Term and Tenant has failed to exercise
any renewal rights then available to Tenant, then Landlord shall have the right
to terminate this Lease by so notifying Tenant, which notice shall specify a
termination date not less than fifteen (15) days after its transmission. if
Landlord is so required to repair, the work shall be commenced and completed
with due diligence, taking into account the time required for Landlord to
procure insurance proceeds, and construction delays due to shortages of labor or
material or other causes beyond Landlord's reasonable control.
b. During the period when Tenant shall be deprived of possession of
the Premises by reason of such damage, Tenant's obligation to pay Base Rent
under Section 5 and
-23-
Operating Expense Allowance under Section 6 shall abate in the proportion which
the damaged area of the Premises bears to the entire Premises.
c. Notwithstanding anything in this Section 11 to the contrary, if
Landlord does not restore the Premises or the affected portion to tenantability
within two hundred seventy (270) days after such casualty, Tenant may then
terminate this Lease, retroactive to the date of the casualty.
12. Condemnation.
------------
a. If all of the Premises are taken through the exercise of the power
of eminent domain, this Lease shall terminate on the date when possession of the
Premises is required by the condemning authority. If only part of the Premises
is taken, then (i) if the condemnation award is insufficient to restore the
remaining portion of the Premises or if such award must be applied to repay any
mortgages encumbering the Building, (ii) if, in addition to a portion or the
Premises, a portion of the Building or Land is taken and Landlord deems it
commercially unreasonable to continue leasing all or a portion of the remaining
space in the Building, or (iii) if a substantial portion of the Premises is so
taken and it is commercially unreasonable for Tenant to continue its business
within the Premises as determined by Tenant in the exercise of its reasonable
business judgment, then Landlord in the case of (i) and (ii) above or Tenant in
the case of (iii) above, shall have the right to terminate this Lease on the
date when the condemned portion of the Premises, Building or Land is required to
be delivered to the condemning authority, which right shall be exercisable by
the exercising party so notifying the other party no later than thirty (30) days
prior to such date.
b. If this Lease is not so terminated after a partial condemnation,
then after the date when the condemned portion of the Premises is delivered to
the condemnor, the Fixed Rent shall be reduced in the proportion which the
condemned area bears to the entire area of the Premises, and Tenant's
Proportionate Share shall be reduced by the same proportion.
c. Tenant shall have the right to claim against the condemnor only for
removal and moving expenses and business dislocation damages which may be
separately payable to tenants in general under Pennsylvania law, provided such
payment does not reduce the award otherwise payable to Landlord. Subject to the
foregoing, Tenant hereby waives all claims against Landlord with
-24-
respect to a condemnation, and hereby assigns to Landlord all claims against the
condemnor including, without limitation, all claims for leasehold damages and
diminution in the value of Tenant's leasehold estate,
13. Tenant's Fixtures. Tenant shall have the right to install trade
-----------------
fixtures, office machinery, computers and equipment (excluding alterations,
improvements and addition which are governed by Section 14) required by Tenant
or used by it in its business, provided that same do not impair the structural
strength of the Building and further provided that such trade fixtures, office
machinery, computers and equipment shall be limited to items normally used in an
office building. Without limiting the generality of the foregoing, it is
specifically understood and agreed that Tenant shall not have the right to
install or operate any electrical equipment or machinery in the Premises (other
than normal office machinery and equipment such as computers, adding machines,
and copiers) without Landlord's prior written consent. Tenant shall remove all
such trade fixtures, office machinery, computers and equipment, including, but
not limited to, cabling and wiring and free-standing dedicated HVAC equipment
for Tenant's mainframe computer unless Landlord notifies Tenant prior to the end
of the Term, that some or all of such computer-related equipment may remain in
the Premises, prior to the end of the Term, and Tenant shall repair and restore
any damage to the Premises and Building caused by such installation or removal.
Tenant shall not be obligated to remove the raised flooring and any dedicated
HVAC equipment for Tenant's mainframe computer mounted on the roof or exterior
of the Building. Tenant's personal property, fixtures and equipment are not
covered by any insurance policies maintained by Landlord under this Lease or
otherwise, and it shall be Tenant's responsibility to secure extended coverage
insurance against fire, vandalism, malicious mischief, sprinkler and other water
leakage and such additional perils as now are or hereafter may be included in a
standard extended coverage endorsement insuring its trade fixtures, machinery,
computers and equipment.
14. Alterations. Tenant shall not, without on each occasion first
-----------
obtaining Landlord's prior written consent, make any alterations, improvements
or additions to the Premises, except that Tenant may, without the consent of
Landlord but with prior written notice to Landlord, make minor improvements to
the interior of the Premises provided that: (i) they do not impair the
structural strength, operation or value of the Building, and (ii) Tenant shall,
prior to the commencement of the work, deliver to Landlord waivers of liens, in
form acceptable to Landlord,
-25-
from all contractors, subcontractors and materialmen performing such work, and
shall take all steps required or permitted by law to avoid the imposition of any
mechanic's liens upon the Premises, Building and Land. All alterations,
improvements and additions, except for minor alterations and improvements as
aforesaid, upon completion of construction thereof, shall become part of the
Premises and the property of Landlord without payment therefor by Landlord and
shall be surrendered to Landlord at the end of the Term; provided, however, that
-------- -------
if so notified by Landlord at the time Tenant requests Landlord's approval,
Tenant shall, prior to the end of the Term, remove all such alterations and
improvements, or the parts thereof specified by Landlord, from the Premises and
shall repair all damage caused by installation and removal. For purposes of this
Section 14, "minor improvements" shall be defined as those improvements costing
no more than Five Thousand ($5,000.00) Dollars.
15. Mechanic's Lien. Tenant shall not, in the making of any repairs or
---------------
alterations pursuant to the provisions of Section 14 hereof, suffer or permit
any mechanic's, laborer's or materialman's lien to be filed against the
Premises, Building, Land or any part thereof by reason of labor or materials
supplied or claimed to have been supplied to Tenant; and if any such lien shall
be filed, Tenant, within thirty (30) days after notice of filing, shall cause it
to be discharged of record.
16. Use of Premises. Tenant may use and occupy the Premises only for the
---------------
express and limited purposes listed in Section 1 of this Lease, and the Premises
shall not be used or occupied, in whole or in part, for any other purpose
without the prior written consent of Landlord. Tenant shall not commit or
suffer any waste upon the Premises or Building, or any nuisance or any other act
which may disturb the quiet enjoyment of any other tenant in the Building or the
Business Park.
Tenant will not dump, flush, or in any way introduce any hazardous
substances or any other toxic substances into the public sanitary sewer system
serving the Premises; nor generate, store or dispose of hazardous substances on
the Premises or from the Premises to any other location without the prior
written consent of Landlord and then only in compliance with the Comprehensive
Environmental Response, Compensation and Liability Act, as amended 42 U.S.C.
9601 et seq. ("CERCLA"), and all other applicable laws, ordinances and
regulations. Tenant shall notify Landlord of any incident which would require
the filing of a notice under applicable federal, state or local environmental
protection law (collectively, "environmental laws"). "Hazardous
-26-
substances" as used in this Section shall mean "hazardous substances" as defined
in CERCLA and any regulations adopted pursuant thereto. Landlord represents that
to the best of its actual knowledge the Building and Land are free from
asbestos, PCB's and other hazardous materials or substances. If any such
materials and/or substances are found on the Land or Building, the obligation
and cost for the clean up shall be upon Landlord unless Tenant contributed or
was responsible for the existence of such hazardous material or substance on the
Land or Building, in which event the Tenant shall be responsible therefor.
17. Rules and Regulations. Tenant covenants and agrees that Tenant, its
---------------------
employees, agents, invitees, licensees and other visitors, shall observe
faithfully, and comply strictly with, such reasonable Rules and Regulations as
Landlord or Landlord's agents may, after notice to Tenant, from time to time
adopt with respect to the buildings and common areas in the Business Park. The
Rules and Regulations currently in effect are attached hereto as Exhibit "F" and
made a part hereof.
18. Governmental Regulations. Tenant shall, in the use and occupancy
------------------------
of the Premises, comply with all applicable laws, ordinances, notices and
regulations of all governmental and municipal authorities, and with the
regulations of the insurers of the Premises. Tenant shall keep in force at all
times all licenses, consents and permits necessary for the lawful conduct of
Tenant's business at the Premises.
19. Signs. Landlord, at its expense, shall construct one (1) standard
-----
Business Park identification sign for Tenant upon the exterior of the Premises
at a location to be mutually selected by Landlord and Tenant. Except for signs
which are located wholly within the interior of the Premises and which are not
visible from the exterior thereof, no signs shall be erected by Tenant anywhere
upon the Premises, Building or Land without Landlord's prior written consent.
Notwithstanding the above, Tenant shall have the right to erect a sign on the
Building or a monument sign on the Land, subject to Landlord's prior approval of
the design and composition of such sign, which approval shall not be
unreasonably withheld. Any such sign must comply with all applicable code
requirements.
20. Landlord's Entry. Landlord and its agents, contractors and invitees
----------------
shall have the right to enter the Premises to inspect the same at all reasonable
times and after reasonable notice to Tenant except in emergencies, to exhibit
same to prospective purchasers, tenants and mortgagees, and to
-27-
make any necessary repairs thereto. Landlord shall not be liable in any manner
to Tenant by reason of such entry or the performance of repair work in the
Premises and the obligations of Tenant hereunder shall not thereby be affected;
however, Landlord agrees (except in the case of Tenant's default hereunder) that
all repair work (excepting only emergency work or work which must, in Landlord's
judgment, be performed on an urgent basis) by Landlord shall be performed in a
reasonable manner at reasonable times.
21. Indemnification.
---------------
a. Tenant shall defend, indemnify and hold harmless Landlord against
and from all costs, expenses, liabilities, losses, damages, injunctions, suits,
actions, fines, penalties, claims, and demands of every kind or nature,
including reasonable counsel fees, by or on behalf of any person, entity or
governmental authority whatsoever arising out of (a) any failure by Tenant to
perform any of the agreements, terms, covenants or conditions of this Lease on
Tenant's part to be performed, (b) any accident, injury or damage that happens
in, about or outside the Premises caused by wilful or negligent act or omission
of Tenant, its agents, servants, or employees, or (c) Tenant's failure to comply
with any laws, ordinances, requirements, orders, directions, rules, or
regulations of any federal, state, county, or municipal governmental authority
or agreement of record affecting the Premises.
b. Notwithstanding anything herein to the contrary, and in addition to
any rights or remedies available at law or equity, Landlord shall defend,
indemnify, and hold harmless Tenant against and from all costs, expenses,
liabilities, losses, damages, injunctions, suits, actions, fines, penalties,
claims, and demands of every kind or nature, including reasonable counsel fees,
by or on behalf of any person, entity or governmental authority whatsoever
arising out of (a) any failure by Landlord to perform any of the agreements,
terms, covenants or conditions of this Lease on Landlord's part to be performed,
(b) any accident, injury or damage that happens in, about or outside the
Premises caused by the wilful or negligent act or omission of Landlord, its
agents, servants, or employees, or (c) Landlord's failure to comply with any
laws, ordinances, requirements, orders, directions, rules, or regulations of any
federal, state, county, or municipal governmental authority or agreement of
record affecting the Premises.
-28-
c. If the Premises or the Building, or any part thereof, is damaged by
fire or other cause against which Tenant is required to carry insurance pursuant
to this Lease, Landlord shall not be liable to Tenant for any loss, cost or
expense arising out of or in connection with such damage. Tenant hereby releases
Landlord, its directors, officers, shareholders, partners, employees, agents and
representatives, from any liability, claim or action arising out of or in
connection with such damage. Furthermore, Tenant shall, pursuant to Section 10,
maintain insurance against loss, injury, or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its agents,
contractors, employees, invitees or customers, or any other person in or about
the Premises, caused by or resulting from fire, steam, electricity, gas, water,
or rain, which may leak or flow from or into any part of the Premises or the
Building, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether such damage or injury results from conditions
arising within the Premises or other portions of the Building, or from other
sources, and Landlord shall not be liable therefor, unless caused by Landlord's
negligence or wrongful act, and in that event only to the extent not covered by
the insurance which Tenant is required to carry pursuant to this Lease. Landlord
shall not be liable to Tenant for any damages arising out of or in connection
with any act or omission of any other tenant in the Building or for losses due
to theft or burglary or other wrongful acts of third parties.
d. Tenant shall protect, indemnify and save Landlord harmless from and
against any and all liability, loss, damage, cost or expense that Landlord may
suffer or incur as a result of any claims, demands, damages, losses,
liabilities, costs, charges, suits, orders, judgments or adjudications asserted,
assessed, filed or entered against Landlord by any third party, including any
governmental authority, arising from the alleged deposit, storage, disposal,
burial, dumping, injecting, spilling, leaking or other use, placement or release
by Tenant, its employees, agents or contractors in, on or affecting the Premises
or any adjoining property owned by Landlord of a hazardous substance or
otherwise arising from any other alleged violation by Tenant, its employees,
agents or contractors, of any environmental law, including, but not limited to,
liability for costs and expenses of abatement, correction or clean-up, fines,
damages, response costs or penalties, or liability for personal injury or
property damage.
-29-
e. Landlord has not used, generated, manufactured, produced, stored,
released, discharged or disposed of on, under or about the Land, any Hazardous
Substance or allowed any other person or entity to do so. Landlord has no
knowledge or reason to know that any Hazardous Substance has been produced,
stored, released, discharged or disposed of on, under or about the Land by any
entity, firm or person, or from any source whatsoever. To the best of Landlord's
knowledge, there is no asbestos or materials containing asbestos within the
Building.
f. Landlord shall protect, indemnify and save Tenant harmless from and
against any and all liability, loss, damage, cost or expense that Tenant may
suffer or incur as a result of any claims, demands, damages, losses,
liabilities, costs, charges, suits, orders, judgments or adjudications asserted,
assessed, filed or entered against Tenant by any third party, including any
governmental authority, arising from the alleged deposit, storage, disposal,
burial, dumping, injecting, spilling, leaking or other use, placement or release
by Landlord, its employees, agents or contractors in, on or affecting the
Premises or any adjoining property of a hazardous substance or otherwise arising
from any other alleged violation by Landlord, its employees, agents or
contractors, of any environmental law, including, but not limited to, liability
for costs and expenses of abatement, correction or clean-up, fines, damages,
response costs or penalties, or liability for personal injury or property
damage.
22. Curing Tenant's Defaults. If Tenant shall default in performing any
------------------------
of its obligations hereunder, Landlord may (but shall not be so obliged), in
addition to Landlord's other rights and remedies and without waiver of such
default, cure such default on behalf of Tenant (and, if deemed necessary by
Landlord, enter and possess the Premises), provided that Landlord shall have
first given Tenant written notice of such default and Tenant shall have failed
within ten (10) days following said notice to cure or diligently to pursue the
cure of said default (which notice and opportunity to cure shall not be required
in case of emergency). Tenant, upon demand of Landlord, shall reimburse Landlord
for all costs (including reasonable counsel fees) incurred by Landlord with
respect to Landlord's efforts to cure the same, which costs shall be deemed
Additional Rent hereunder.
-30-
23. Default.
-------
a. If (i) Tenant fails to pay any installment of Fixed Rent when due,
(ii) Tenant falls to pay any Additional Rent when due and such failure continues
for a period of ten (10) days after notice from Landlord, (iii) Tenant vacates
the Premises, (iv) Tenant fails to observe or perform any of Tenant's other
obligations herein contained and such failure continues for more than fifteen
(15) days after notice from Landlord, (v) Tenant makes an assignment for the
benefit of creditors, (vi) Tenant commits an act of bankruptcy or files a
petition or commences any proceeding under any bankruptcy or insolvency law,
(vii) a petition is filed or any proceeding is commenced against Tenant under
any bankruptcy or insolvency law and is not dismissed within thirty (30) days,
(viii) Tenant is adjudicated a bankrupt, (ix) a receiver or other official is
appointed for Tenant or for a substantial part of Tenant's assets or for
Tenant's interest in this Lease, or (x) any attachment or execution is filed or
levied against a substantial part of Tenant's assets or Tenant's interests in
this Lease or any of Tenant's property in the Premises, then, in any such event,
an Event of Default shall be deemed to exist and Tenant shall be in default
hereunder, and, at the option of Landlord: (a) the balance of the Fixed Rent for
the remainder of the Term shall be deemed to be due, payable and in arrears, as
if payable in advance hereunder; or (b) this Lease and the Term shall, without
waiver of Landlord's other rights and remedies, terminate without any right of
Tenant to save the forfeiture. Any acceleration of the rent by Landlord shall
not constitute a wavier of any right or remedy of Landlord, and if Tenant shall
fail to pay the accelerated rent upon Landlord's demand, then Landlord may
thereafter terminate this Lease, as aforesaid. Immediately upon such termination
by Landlord, Landlord shall have the right to recover possession of the
Premises, removing Tenant's and any third party's property therefrom, and making
any disposition thereof as Landlord may deem commercially reasonable.
b. Following such termination, Landlord shall have the unrestricted
right to lease the Premises or any part thereof to any person and pursuant to
any terms as Landlord may elect, but Landlord shall have no obligations to rent
the Premises so long as Landlord (or any related entity) has other comparable
vacant space available for leasing in the general geographical areas of the
Premises.
c. No act or forbearance by Landlord shall be deemed a waiver or
election of any right or remedy by Landlord
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with respect to Tenant's obligations hereunder, unless and to the extent that
Landlord shall execute and deliver to Tenant a written instrument to such
effect, and any such written waiver by Landlord shall not constitute a waiver or
relinquishment for the future of any obligation of Tenant. Landlord's acceptance
of any payment from Tenant (regardless of any endorsement on any check or any
writing accompanying such payment) may be applied by Landlord to Tenant's
obligations then due hereunder, in any priority as Landlord may elect, and such
acceptance by Landlord shall not operate as an accord and satisfaction or
constitute a waiver of any right or remedy of Landlord with regard to Tenant's
obligations hereunder.
d. FOR THE PURPOSE OF PROCURING POSSESSION OF THE PREMISES WHEN THE
TERM SHALL END BY EXPIRATION OR BY TERMINATION THEREOF ON ACCOUNT OF TENANT'S
DEFAULT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF
RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR TENANT
AND ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, TO SIGN AN AGREEMENT FOR
ENTERING IN ANY COMPETENT COURT AN ACTION IN EJECTMENT FOR POSSESSION OF THE
PREMISES AND TO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT, AND AGAINST ALL
PERSONS CLAIMING UNDER OR THROUGH TENANT, FOR THE RECOVERY BY LANDLORD OF
POSSESSION OF THE SAME, WITHOUT ANY STAY OF EXECUTION, FOR WHICH THIS LEASE, OR
A COPY THEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND
THEREUPON A WRIT OF POSSESSION MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT
OR PROCEEDING WHATSOEVER. TENANT HEREBY RELEASES LANDLORD FROM ALL ERRORS AND
DEFECTS WHATSOEVER IN ENTERING SUCH ACTION AND JUDGMENT AND IN CAUSING SUCH WRIT
OR WRITS TO BE ISSUED, AND HEREBY AGREES THAT NO WRIT OF ERROR, APPEAL, PETITION
TO OPEN OR STRIKE OFF JUDGMENT, OR OTHER OBJECTION SHALL BE FILED OR MADE WITH
RESPECT THERETO. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME
SHALL BE DISCONTINUED OR POSSESSION OF THE PREMISES SHALL REMAIN IN OR BE
RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT OR ANY
SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER ACTIONS AS ABOVE PROVIDED TO
RECOVER POSSESSION OF THE PREMISES.
e. TENANT, BEING FULLY AWARE OF THE RIGHT TO NOTICE AND A HEARING
CONCERNING THE VALIDITY OF ANY AND ALL CLAIMS THAT MAY BE ASSERTED AGAINST
TENANT BY LANDLORD BEFORE A JUDGMENT CAN BE ENTERED HEREUNDER, HEREBY WAIVES
THESE RIGHTS AND AGREES AND CONSENTS TO JUDGMENT BEING ENTERED BY CONFESSION IN
ACCORDANCE WITH THE TERMS HEREOF WITHOUT FIRST BEING GIVEN NOTICE AND THE
OPPORTUNITY TO BE HEARD ON THE VALIDITY OF THE CLAIM OR CLAIMS UPON WHICH SUCH
JUDGMENT IS ENTERED.
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f. In the event of the failure by Landlord, after thirty (30) days'
prior written notice thereof, to perform any of the provisions, covenants,
agreements or conditions of this Lease on its part to be performed, Tenant may,
in addition to any remedies available to it at law or in equity, perform the
same for and on behalf of Landlord, the cost of which performance, upon the
proper payment thereof, shall be paid to Tenant by Landlord upon demand.
24. Quiet Enjoyment. So long as Tenant is not in default under the
---------------
covenants and agreements of this Lease, Tenant's quiet and peaceful enjoyment of
the Premises shall not be disturbed or interfered with by Landlord or by any
person claiming by, through or under Landlord.
25. Assignment and Subletting. Tenant shall not assign, pledge,
-------------------------
mortgage or otherwise transfer or encumber this Lease, nor sublet all or any
part of the Premises or permit the same to be occupied or used by anyone other
than Tenant or its employees without Landlord's prior written approval, which
approval shall not be unreasonably withheld. Without limiting the other
instances in which it may be reasonable for Landlord to withhold Landlord's
consent to an assignment or subletting. Landlord and Tenant acknowledge that it
shall be reasonable for Landlord to withhold Landlord's consent in the following
instances: The use of the Premises by such proposed assignee or subtenant would
not be a permitted use or would increase the parking requirements of the
Building beyond the existing (built or buildable) capacity of the Land; as a
separate lot; the proposed assignee or subtenant is not of sound financial
condition; the proposed assignee or subtenant does not have a good reputation as
a tenant of property; the assignment or subletting would entail any alterations
which would lessen the value of the leasehold improvements in the Premises; if
Landlord deems the business of the proposed assignee or subtenant not to be
consonant with that of other tenants in the Building, or if the intended use by
the proposed assignee or subtenant conflicts with any commitment made by
Landlord to any other tenant in the Building. Anything contained herein to the
contrary notwithstanding, Tenant may assign this Lease or sublet the Premises or
any portion thereof, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant's business as a going
concern (collectively, an "Affiliate"), provided that (i) the assignee or
sublessee assumes, in full, the obligations of Tenant
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under this Lease, (ii) Tenant remains fully liable under this Lease, and (iii)
the use of the Premises remains unchanged.
Tenant's request for approval shall be in writing and contain the name,
address, and description of the business of the proposed assignee or subtenant,
its most recent financial statement and other evidence of financial
responsibility, its intended use of the Premises, and the terms and conditions
of the proposed assignment or subletting.
Within thirty (30) days from receipt of such request Landlord shall either:
(a) grant or refuse consent; or (b) elect to require Tenant (i) to execute an
assignment of lease or sublease of Tenant's interest hereunder to Landlord or
its designee upon the same terms and conditions as are contained herein,
together with an assignment of Tenant's interest as sublessor in any such
proposed sublease, or (ii) if the request is for consent to a proposed
assignment of this Lease, to terminate this Lease and the term hereof effective
as of the last day of the third month following the month in which the request
was received.
Each assignee or sublessee of Tenant's interest hereunder shall assume and
be deemed to have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for all payments and for the due performance of all terms,
covenants, conditions and provisions herein contained on Tenant's part to be
observed and performed. No assignment shall be binding upon Landlord unless the
assignee shall deliver to Landlord an instrument in recordable form containing a
covenant of assumption by the assignee, but the failure or refusal of an
assignee to execute the same shall not release assignee from its liability as
set forth herein.
Any assignment or subletting of more than 50% of the combined Premises
except to an Affiliate shall terminate any right in Tenant (as may otherwise be
provided for herein) to renew or extend the Term of this Lease or any right of
expansion to new or additional space or any right of first refusal or first
offer with respect to additional space, and shall likewise terminate and render
void and of no effect any prior exercise of any of the rights enumerated above
(except and only to the extent that a renewal term is then in effect).
Any consent by Landlord hereunder shall not constitute a waiver of strict
future compliance by Tenant of the provisions of this Section 25 or a release of
Tenant from the full
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performance by Tenant of any of the terms, covenants, provisions, or conditions
in this Lease contained.
26. Subordination.
-------------
a. This Lease is and shall be subject and subordinate at all times to
any lease under which Landlord is in control of the Premises, to the rights of
the owners of the Building and Land, to all mortgages and other encumbrances now
or hereafter placed upon the Premises or the Building and to any and all
amendments to or modifications of any such lease, ownership right or mortgage,
without the necessity of any further instrument or act on the part of Tenant to
effectuate such subordination. Tenant shall from time to time execute and
deliver within ten (10) days following the request of Landlord and Landlord's
mortgagee, grantee or lessor, recordable instruments evidencing such
subordination and Tenants' agreement to attorn to the holder of such prior
right. Notwithstanding the foregoing, any mortgagee may at any time subordinate
its mortgage to this Lease, without Tenant's consent, by notice in writing to
Tenant, whereupon this Lease shall be deemed prior to such mortgage without
regard to their respective dates. Landlord shall, as an express condition to
Tenant's agreement to subordinate this Lease to any mortgage or other
encumbrance now or hereafter placed upon the Premises, obtain a non-disturbance
agreement from the holder of such mortgage or other encumbrance now or hereafter
placed upon the Premises providing that the holder of such mortgage or other
encumbrances shall not disturb Tenant's possession under this Lease in the event
of foreclosure, transfer in lieu thereof, and other enforcement proceedings,
provided that Tenant shall not be in default hereunder. Any such agreement shall
be prepared or such holder's standard form and may require Tenant to confirm the
subordination of this Lease and to agree to attorn to the holder of such
mortgage or other encumbrance.
b. If any successor in interest, including but not limited to, a
lessor of a superior lease or the holder, now or hereafter, of a superior
mortgages shall succeed to Landlord's estate in the Building or the rights of
Landlord under this Lease, whether through purchase, operation of law,
possession or foreclosure action or delivery of a new lease or deed or
otherwise, then at the election of such party so succeeding to Landlord's rights
(herein sometimes called "Successor Landlord"), Tenant shall attorn to and
recognize such Successor Landlord as Tenant's landlord under this Lease and
shall promptly execute, acknowledge and deliver any instrument that such
successor
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Landlord may reasonably request to evidence such attornment, provided only that
such Successor Landlord agrees not to disturb Tenant's possession under the
Lease so long as Tenant in not in default hereunder, Tenant hereby irrevocably
appoints such Successor Landlord as Tenant's attorney-in-fact to execute and
deliver such instrument for and on behalf of Tenant, such appointment being
coupled with an interest. To the extent permitted by law, Tenant hereby waives
any right Tenant may have under any present or future law to terminate this
Lease or surrender the Premises by reason of the institution of any proceeding
to terminate a superior lease or action to foreclose a superior mortgage, and
this Lease shall not be affected by any such proceeding or action unless and
until the lessor of the superior lease or holder, now and hereafter, of the
superior mortgage, elects in such proceeding or action to permit the termination
of this Lease by the Tenant.
27. Tenant's Certificates. Tenant shall from time to time, within five
---------------------
(5) days after Landlord's request, execute and deliver to Landlord a recordable
written instruments certifying that this Lease is unmodified and in full effect
(or if there have been modifications, that it is in effect as modified), the
dates to which rental charges have been prepaid by Tenant, if any, whether or
not Landlord is in default of any of its obligations hereunder, and covering
such other matters as Landlord may reasonably request. Tenant agrees that such
statement may be relied upon by any mortgagee, purchaser or assignee of
Landlord's interest in this lease or the Premises. Upon Landlord's written
request from time to time, but not more than twice during any Lease Year, Tenant
shall promptly furnish Landlord financial statements evidencing Tenant's (and/or
its Guarantor, if any) then current financial condition.
28. Acceptance; Surrender. By entry and possession of the Premises,
---------------------
Tenant thereby acknowledges that Tenant has examined the Premises and accepts
the same as being in the condition called for by this Lease. Tenant shall, at
the end of the Term, promptly surrender the Premises in good order and condition
and in conformity with the applicable provisions of this Lease, excepting only
reasonable wear and tear and damage by fire or other insured casualty.
29. Antenna(s) Installation. Should Tenant wish to install an antenna(s),
-----------------------
satellite dish and associated equipment (collectively, an "antenna") on property
belonging to Landlord, including on the roof of the Building, Landlord agrees
that said property may be used for such purposes at no additional cost to
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Tenant, subject to such reasonable approvals, rules and regulations as Landlord
may adopt. Landlord grants Tenant the right in common with Landlord and other
tenants, subject to the following provisions of this Section, to install,
operate and maintain, at Tenant's expense and risk, a lawfully permitted
antenna(s) and associated equipment (the "Antenna Premises"):
(a) Tenant shall submit, at Tenant's expense, a full set of engineering
plans and specifications of the proposed antenna(s) installation to Landlord for
approval, such approval not to be unreasonably withheld, conditioned or delayed;
(b) Tenant shall make all connections by conduit or cable as required
between Tenant's equipment in the Premises and the Antenna Premises utilizing
Building services, subject to Tenant's payment for reasonable costs of such
services, as necessary to effect the operation of the antenna(s). Said
connections shall be approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed;
(c) Any antenna(s) installed by Tenant shall be erected and operated so as
not to interfere with the operation of any previously erected antenna(s).
Tenant agrees to remedy at Tenant's expense any interference with other tenants
or third parties caused by the operation of Tenant's antenna(s), and Tenant
agrees to indemnify and hold harmless Landlord from all liability and claims,
including, without limitation, court costs, attorneys' fees and costs of
investigation, related to or arising from the operation and/or maintenance of
Tenant's antenna(s);
(d) Tenant or Tenant's representatives shall, at all reasonable times, have
the unrestricted right to enter or leave the Antenna Premises where the
antenna(s) and equipment are located;
(e) Landlord agrees that it will not give unauthorized persons access to
Tenant's Antenna Premises or equipment;
(f) Tenant shall obtain all necessary municipal, state and federal permits
and authorizations required to install, maintain and operate an antenna(s) and
associated equipment and pay any charges levied by government agencies annually
or otherwise which are the sole result of Tenant's having an antenna(s);
(g) Tenant agrees to maintain the Antenna Premises and associated equipment
in a good state of repair, to save Landlord
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harmless from any loss, costs or damages as a result of the erection, operation,
maintenance, existence or removal of said antenna(s);
(h) At the conclusion of the Term, unless Landlord permits otherwise,
Tenant shall remove the antenna(s) and surrender and restore the Antenna
Premises to Landlord in as good order and same condition as when received;
(i) The liability insurance to be carried by Tenant pursuant to the
provisions of this Lease shall include coverage for the activity of Tenant on
the Antenna Premises. Tenant shall pay any increase in rates for insurance
which Landlord is required to carry under the Lease because of the installation
and use of the antenna(s) by Tenant; and
(j) Any notice or demand required or permitted to be given hereunder shall
be made in accordance with the terms of this Lease.
30. Holding Over. This Lease shall expire absolutely and without notice
------------
an the last day of the Term, provided that if Tenant, with the prior written
consent of Landlord, retains possession of the Premises or any part thereof
after the termination of this Lease by expiration of the Term or otherwise, a
month-to-month tenancy shall be deemed to exist, and Tenant shall continue to
pay the Fixed Rent and Additional Rent due hereunder. If such holding over
exists without Landlord's prior written consent, Tenant shall pay Landlord, as
partial compensation for such unlawful retention, an amount calculated on a per
diem basis for each day of such continued unlawful retention, equal to 150% of
the Base Rent for the time Tenant thus remains in possession. Such payments for
unlawful retention shall not limit any rights or remedies of Landlord resulting
by reason of the wrongful holding over by Tenant or create any right in Tenant
to continue in possession of the Premises.
31. Notices. All notices, requests and consents herein required or
-------
permitted from either party to the other shall be in writing and shall be sent
by personal delivery, nationally-recognized courier guaranteeing overnight
delivery, facsimile (with receipt confirmed) or by mailing the same by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Landlord at its address aforesaid, with a copy to any mortgagee
designated by Landlord, or, as the case may be, addressed to Tenant at its
address aforesaid, or to such other address as the party to receive same may
designate by notice to
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the other. All such notices, requests and other communications shall be deemed
to have been sufficiently given for all purposes on the date of personal
delivery, upon confirmation of receipt of facsimile, on the day after the date
of deposit with a courier guaranteeing overnight delivery, or if deposited in
the United
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States mail, the date when the notice is either received or rejected by the
addressee.
32. Broker. Tenant represents and warrants to Landlord that all of
------
Tenant's dealings in regard to the Premises have been solely with The Nichols
Company and Julien J. Studley, Inc. ("Studley") that no other broker, agent or
party has shown the Premises to Tenant or negotiated with Tenant in regard
thereto. Landlord shall be responsible for the payment of any commission due and
owing to Studley.
33. Definition of Parties. The word "Landlord" is used herein to include
---------------------
the Landlord named above and any subsequent person who succeeds to the rights of
Landlord herein, each of whom shall have the same rights and remedies as he
would have had had he originally signed this Lease as Landlord, and in all
events, Tenant shall look solely to the landlord's interest in the Land and
Building and rents derived therefrom for enforcement of any obligation hereunder
or by law assumed or enforceable against Landlord or such other person,
provided, however, that neither Landlord nor any successor to Landlord shall
have any liability hereunder after he ceases to hold a fee or leasehold interest
in the Premises, except for obligations which may have theretofore accrued. The
word "Tenant" is used herein to include the party named above as Tenant as well
as its or their respective heirs, personal representatives, successors and
assigns, each of whom shall be under the same obligations, liabilities and
disabilities and have only such rights, privileges and powers as he would have
possessed had he originally signed this Lease as Tenant.
34. Landlord's Waiver. So long as Tenant is not in default hereunder,
-----------------
Landlord agrees to execute landlord's waivers in form and content reasonably
satisfactory to Landlord in conjunction with the financing of Tenant's fixtures,
inventory and equipment.
35. Right of First Offer. Horsham Valley, Inc. ("Horsham Valley"), the
--------------------
owner of an adjoining parcel containing approximately 6.763 acres less
approximately three acres required by Landlord to construct an office building
for the tenant presently occupying Premises "B" (the "Parcel"), has agreed to
grant Tenant a right of first offer upon the sale or lease of the Parcel. In the
event Horsham Valley desires to sell the Parcel, Horsham Valley shall so notify
Tenant of its intent to sell the Parcel. If Tenant notifies Horsham Valley
within five (5) days after receipt of such notice of Tenant's desire to purchase
the Parcel, Horsham Valley and Tenant shall thereafter negotiate in
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good faith the terms and conditions upon which Horsham Valley is willing to sell
the Parcel to Tenant and Tenant is willing to purchase the Parcel from Horsham
Valley. In the event the parties are unable to enter into a mutually-
satisfactory Agreement of Sale within sixty (60) days after Tenant's notice to
Horsham Valley or in the event Tenant fails to notify Horsham Valley of its
interest in purchasing the parcel within five (5) days after receipt of Horsham
Valley's notice of its intent to sell, then Horsham Valley shall be free to sell
Parcel to any other purchaser. In addition, in the event Horhsam Valley desires
to construct an office building for lease to third parties on the Parcel,
Horsham Valley shall so notify Tenant. Tenant shall have five (5) days after
receipt of such notice to advise Horsham Valley of its desire to enter into a
lease for a build-to-suit office building to be constructed by Horsham Valley on
the Parcel. Horsham Valley and Tenant shall thereafter negotiate in good faith
the lease of the building to be constructed by Horsham Valley on the Parcel. In
the event the parties are unable to enter into a mutually-satisfactory lease
within sixty (60) days after Tenant's notice to Horsham Valley or in the event
Tenant fails to notify Horsham Valley of its interest in leasing the building
within five (5) days after receipt of Horsham Valley's notice of its intent to
build an office building, then Horsham Valley shall be free to lease the
building to any other tenant or tenants.
36. Entire Agreement; Interpretation. This Lease constitutes the entire
--------------------------------
agreement between the parties hereto with respect to the Premises and there are
no other agreements or understandings. This Lease shall not be modified except
by written instrument executed by both parties. The captions used herein are
for convenience only, and are not part of the Lease.
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This Lease shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this Lease, under
seal, as of the day and year first above written.
LANDLORD:
C/N HORSHAM TOWNE LIMITED
PARTNERSHIP, acting by and
through its General Partner,
WITNESS: C/N HORSHAM TOWNE, INC.
__________________________ By:______________________________
Anthony A. Nichols - President
TENANT:
WITNESS: ASTEA INTERNATIONAL, INC.
__________________________ By:______________________________
Len VonVital - Vice President
and Chief Financial Officer
Exhibit "A" Description of Premises "A" and Premises "B"
Exhibit "B" Premises "A" Space Plan
Exhibit "C" Premises "B" Space Plan
Exhibits "D-1"
and "D-2" Plans of Expansion Areas
Exhibits "E-1"
and "E-2 Cleaning Specifications
Exhibit "F" Rules and Regulations
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EXHIBIT "C"
-----------
Premises "B" Plans and Specifications
To be attached to the Lease at least six (6) months prior to Tenant's
occupancy of Premises "B".
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HORSHAM VALLEY, INC, the owner of the Parcel described in Section 35 above,
hereby joins in this Agreement for the sole purpose of evidencing its consent to
the terms and conditions of Section 35.
HORSHAM VALLEY, INC.
By:______________________________
C.W. Schrenk - President
(Corporate Seal) Attest:__________________________
Frank Kelly - Secretary
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