Pennsylvania-Valley Forge-590 North Gulph Road Lease - American Baptist Churches USA and Infonautics Corp.
LEASE BETWEEN
AMERICAN BAPTIST CHURCHES USA
AND
INFONAUTICS CORPORATION
<PAGE>
TABLE OF CONTENTS
1. DEMISE OF PREMISES.........................................................1
2. TERM. OPTION TO RENEW. RIGHT OF FIRST NEGOTIATION..........................1
3. RENT.......................................................................4
4. SECURITY DEPOSIT...........................................................5
5. USE OF PREMISES............................................................6
6. UTILITIES AND SERVICES.....................................................6
7. ALTERATIONS, REMOVAL OF TRADE FIXTURES.....................................7
8. SIGNS......................................................................8
9. PARKING....................................................................8
10. KEYS....................................................................8
11. NO SMOKING..............................................................8
12. POSSESSION: TENANT IMPROVEMENTS.........................................9
13. MAINTENANCE AND REPAIR.................................................10
14. ENTRY BY LANDLORD......................................................11
15. LIABILITY AND INSURANCE AND INDEMNITY..................................11
16. DAMAGE AND DESTRUCTION TO THE PREMISES.................................14
17. EMINENT DOMAIN.........................................................15
18. SUBORDINATION..........................................................15
19. ESTOPPEL CERTIFICATE...................................................16
20. DEFAULT OF TENANT/LANDLORD'S RIGHTS AND REMEDIES.......................16
21. NO WAIVER OF BREACH....................................................21
22. DEFAULT OF LANDLORD/TENANT'S RIGHTS AND REMEDIES.......................21
23. QUIET POSSESSION.......................................................23
24. SURRENDER..............................................................23
25. STATUS OF PARTIES ON TERMINATION OF LEASE..............................24
26. ASSIGNMENT AND SUBLETTING..............................................24
27. NOTICES................................................................25
28. ATTORNEYS'FEES.........................................................25
29. HOLDING OVER...........................................................26
<PAGE>
30. TIME OF ESSENCE........................................................27
31. SUCCESSORS AND ASSIGNS.................................................27
32. CUMULATIVE REMEDIES....................................................27
33. TERMS AND HEADINGS.....................................................27
34. ENTIRE AGREEMENT.......................................................27
35. REPRESENTATIONS AND WARRANTIES.........................................27
36. CONTROLLING LAW........................................................28
37. MISCELLANEOUS..........................................................28
38. HAZARDOUS SUBSTANCES...................................................29
39. FORCE MAJEURE..........................................................30
<PAGE>
LEASE
THIS LEASE is made as of this _25TH_ day of __APRIL___, 2000, by and
between AMERICAN BAPTIST CHURCHES USA, a New York Corporation (hereinafter
referred to as "Landlord") with offices and place of business at North Gulph
Road at First Ave., Valley Forge, PA 19482 and INFONAUTICS CORPORATION, a
Pennsylvania Corporation, (hereinafter referred to as "Tenant").
WITNESSETH:
The Landlord, for and in consideration of the covenants and agreements
herein set forth to be kept by Tenant, and intending to be legally bound, does
hereby demise and lease unto the Tenant, and the Tenant, for and in
consideration of the covenants and agreements herein set forth to be kept by the
Landlord, does hereby hire and rent certain space owned by Landlord as more
particularly described herein below with all rights, privileges, and
appurtenances thereto, for and during the terms herein described, upon the
following covenants and conditions:
1. DEMISE OF PREMISES
In consideration of the rents and covenants herein stipulated to be
paid and performed, Landlord hereby demises, rents and lets to Tenant and Tenant
hereby rents from Landlord, certain space and all rights, privileges, and
appurtenances related to such space in the building located at 590 North Gulph
Road, Valley Forge, PA (hereinafter referred to as the "Building") consisting of
approximately thirty thousand (30,000) rentable square feet of space in the
Building (hereinafter referred to as the "Premises"), all as more particularly
set forth on the plan attached hereto as Exhibit A.
Tenant may request a different address from the appropriate Post
Office, including without limitation a First Avenue address, and in furtherance
thereof, Landlord shall cooperate as reasonably required.
2. TERM. OPTION TO RENEW. RIGHT OF FIRST NEGOTIATION.
A. The term of this Lease shall commence (the "Commencement
Date") on the earlier to occur of (i) the date upon which the Tenant
completes Tenant's Work as described in
1
<PAGE>
Exhibit B attached hereto and defined in Section 12.A. hereof, or (ii) July
1, 2000, and shall continue for an initial term ("Initial Term") expiring on
December 31, 2003. Notwithstanding the foregoing, for the purpose of allowing
Tenant to construct its tenant improvements, Landlord shall permit Tenant to
occupy the Premises on a date which is earlier than the Commencement Date
(such date is herein called the "Construction Commencement Date") with the
understanding that Tenant shall be subject to all of the terms and conditions
of this Lease from and after the Construction Commencement Date, except for
the payment of rent and additional rent. Upon written request by either
party, the Commencement Date, Initial Term and Renewal Terms having been
determined, the parties shall execute a confirmation of such terms, in
accordance with the form attached hereto as Exhibit C.
Notwithstanding anything to the contrary contained in this Lease, if,
by July 1, 2000, (subject to extension as hereafter provided), Tenant has not
received the necessary building permit plus any other approvals necessary for
Tenant's construction of the "Tenant Work" defined in Section 12.A. of this
Lease, then and in that event either Landlord or Tenant shall have the right to
terminate this Lease by written notice to the other: provided, however that for
purposes of this paragraph the July 1, 2000 date shall be extended if either (x)
Tenant, after using all due diligence to timely file for and obtain such permits
or approvals, suffers delays due to strikes, lockouts, acts of God or other
causes beyond Tenant's control, in which case such date shall be extended by one
(1) day for each day of delay, or (y) Tenant is denied the issuance of such
building permits or approvals by the applicable governmental authorities, in
which case, at Tenant's election, by written notice to Landlord, the July 1,
2000 date shall be extended for ninety (90) days in order to afford Tenant the
opportunity to appeal such denial.
B. Provided Tenant is not in default of its obligations under
this Lease beyond the expiration of the applicable notice and cure periods
either at the time of Tenant's exercise of its options to renew or at the
time of commencement of the renewal term in question, Tenant shall have the
option to renew this Lease for two additional terms of thirty-six (36) months
each (the "Renewal Terms"). The first Renewal Term shall commence on the
first day of the month immediately following the expiration of the Initial
Term and the second Renewal Term shall commence on the first day of the month
immediately following the expiration of the first
2
<PAGE>
Renewal Term. The terms of the Lease during the Renewal Terms shall be the same
as apply during the Initial Term, except that the rent payable during each
Renewal Term shall be equal to the fair market rental for the Premises at the
time of the commencement of each Renewal Term, based on rent payable by other
tenants for similar type, buildout and amount of space for comparable
warehouse/office buildings in the vicinity of the Building. In no event shall
the rent payable during any Renewal Term be less than the rent payable during
the last twelve month period of the Initial Term. Tenant may exercise this
option to renew only by giving Landlord written notice of exercise at least nine
(9) months prior to the expiration of the Initial Term, in the case of the first
Renewal Term, and at least nine (9) months prior to the expiration of the first
Renewal Term, in the case of the second Renewal Term.
C. 1. If, at any time during the term of this Lease or any
Renewal Term, space within the Building appurtenant to the Premises ("Adjacent
Space") becomes available to lease, Landlord will, prior to leasing the Adjacent
Space to anyone else, notify Tenant in writing and offer to lease the Adjacent
Space to Tenant on the same general terms and conditions that Landlord, acting
in good faith, would lease the Adjacent Space to a third party. Such terms and
conditions will include without limitation a proposed rent based on the then
prevailing market rent for similar space in the King of Prussia/Valley Forge
area, a minimum lease term of three (3) years and a delivery of the Adjacent
Space to Tenant on an "as is" basis, with Tenant to be responsible for all
tenant improvements.
2. Upon Tenant's receipt of Landlord's offer as aforesaid,
Tenant shall have a period of twenty (20) days within which to notify Landlord
that Tenant has accepted Landlord's proposal, or to negotiate other terms with
Landlord. If, at the end of the twenty (20) day period, Landlord and Tenant have
agreed upon the principal business terms of the lease for the Adjacent Space,
then Landlord and Tenant shall as soon as reasonably possible thereafter, enter
into an amendment to this Lease expanding the Premises to include the Adjacent
Space.
3. If Landlord and Tenant are unable to agree on the terms
and conditions of the lease of the Adjacent Space within such twenty (20) day
period, then Landlord shall be free to lease the Adjacent Space to any third
party; provided, however that if, within twelve (12)
3
<PAGE>
months after Landlord's notice to Tenant as aforesaid Landlord proposes to lease
the Adjacent Space to a third party on substantive terms which are more
favorable to a tenant than those originally proposed by Landlord to Tenant as
provided above, then, before leasing the Adjacent Space to such third party,
Landlord must again offer to lease the Adjacent Space to Tenant at such
substantive terms offered to the third party, whereupon Tenant shall have twenty
(20) days from its receipt of Landlord's offer within which to notify Landlord
in writing whether Tenant accepts or rejects such offer. If the Tenant fails to
so notify Landlord whether it accepts or rejects Landlord's offer, then it shall
conclusively be presumed that Tenant has elected to reject Landlord's offer.
4. Time is of the essence of the performance by Landlord
and Tenant of their obligations under this Section 2.C..
3. RENT
A. For the Premises, beginning on January 1, 2001 and continuing
throughout the Initial Term, Tenant shall pay rent to Landlord as follows:
i) For the period January 1, 2001 to December 31, 2001,
Tenant shall pay to Landlord monthly rent in the amount of Twenty-Four Thousand
Forty-One and 67/100ths Dollars ($24,041.67).
ii) For the period January 1, 2002 to December 31, 2002,
Tenant shall pay to Landlord monthly rent in the amount of Twenty-Five Thousand
Two Hundred and Ninety-One and 67/100ths Dollars ($25,291.67).
iii) For the period January 1, 2003 to December 31, 2003,
Tenant shall pay to Landlord, monthly rent in the amount of Twenty-Six Thousand
Five Hundred and Forty-One and 67/100ths Dollars ($26,541.67).
B. If the Commencement Date falls on any day other than the first
day of a calendar month, then, on the Commencement Date Tenant shall pay rent to
Landlord in an amount equal to the monthly rent for the Premises multiplied by a
fraction, the numerator of which is the number of days in the month in question
commencing on the Commencement Date
4
<PAGE>
and expiring on the last day of such month, and the denominator of which is the
actual number of days in such month.
C. All payments of rent hereunder shall be made in advance on the
first day of each and every month and shall be without offset or deduction of
any kind or nature except as specifically set forth herein to the contrary.
D. All rent due hereunder shall be payable to Landlord at its
address and forwarded to Landlord, att: Rev. Cheryl Wade or to such other place
as Landlord may designate in writing.
4. SECURITY DEPOSIT
Simultaneously with the delivery by Tenant of this Lease fully executed
by Tenant, Tenant shall deposit with Landlord a security deposit in the amount
of $24,041.67 (the "Security Deposit"). The Security Deposit shall be held by
Landlord in a non-interest bearing account, and shall be security for Tenant's
payment and performance of all Tenant's obligations, covenants, conditions and
agreements under this Lease. Tenant hereby waives any applicable law requiring
the placement of the Security Deposit in an escrow account. Landlord shall have
the right, upon prior written notice to Tenant, to apply all or any portion of
the Security Deposit to cure any default by Tenant. If Landlord so applies any
or all of the Security Deposit, Tenant shall be obligated to promptly deposit
with Landlord the amount necessary to restore the Security Deposit to its
original amount. In the event Tenant fails to perform its obligations, including
but not limited to accepting possession of the Premises on the Commencement Date
provided for herein, then the Security Deposit shall not be deemed liquidated
damages and Landlord may apply the deposit to reduce Landlord's damages, and
such application of the deposit shall not preclude Landlord from recovering from
Tenant all additional damages incurred by Landlord. In the event Tenant fully
and faithfully complies with all terms and conditions of this Lease, the
Security Deposit shall be returned to Tenant within forty-five (45) days
following the expiration of the Lease Term and Tenant's surrender of the
Premises in accordance with the terms of this Lease. No holder of a mortgage or
deed of trust to which this Lease is subordinate shall be responsible
5
<PAGE>
for the Security Deposit unless such mortgagee or holder of such deed of trust
shall have actually received or obtained control over the Security Deposit.
5. USE OF PREMISES
The Premises may be used only for general office, warehouse and storage
uses and no other use. Tenant shall occupy the Premises in a lawful manner and
shall not conduct any activity in the Premises contrary to this Lease or
applicable law. Tenant shall have the right, at its sole cost and expense, to
provide and place three (3) picnic tables and accompanying benches in a location
outside of the Building to be mutually acceptable to both Landlord and Tenant.
Tenant shall maintain the picnic tables and benches in good condition and repair
and shall deep the area around such picnic tables clean and free from waste and
other debris. Upon the expiration or earlier termination of this Lease, Tenant
shall remove the picnic tables and benches from the Landlord's Property. Tenant
understands that Landlord can give Tenant no assurances that others besides
Tenant's employees will not use the picnic tables.
6. UTILITIES AND SERVICES
A. UTILITIES. Landlord shall, at its cost, except as hereafter
provided, furnish to Tenant during normal business hours all utilities and
services except telephone or other communications devices, including but not
limited to electricity, water, sewage and trash disposal, heat and
air-conditioning, maintenance and repair, and all other services customarily
provided under a full service lease, incidental to Tenant's use and occupancy of
the Premises, provided, however that Landlord shall not be liable to Tenant for
any interruption in services for any cause other than Landlord's negligence or
wilful misconduct. In the event of an interruption in utilities caused by
Landlord's negligence or wilful misconduct for a period of 72 consecutive hours
or more, then the rent payable to Landlord under Section 3. hereof or, as
applicable, Section 2.B., shall abate until the utilities to the Premises have
been restored.
B. JANITORIAL SERVICES. Landlord shall, at Landlord's sole cost
and expense, provide Tenant with janitorial services and supplies at least equal
to the quality and frequency of such services provided by Landlord to its office
tenants at the office building owned by Landlord at 588 North Gulph Road, Valley
Forge, PA.
6
<PAGE>
C. TELEPHONE. Telephone, mail, copying, and other similar
services shall be the responsibility of the Tenant.
7. ALTERATIONS, REMOVAL OF TRADE FIXTURES
A. Tenant may, at Tenant's sole cost and expense, make any
non-structural alterations or additions to the Premises which do not violate any
local, state, or federal ordinances, laws, or regulations, to include any trade
fixtures, electrical and plumbing connections incidental thereto, partitions,
and any other alterations or additions as may be necessary for the conduct of
its business, provided that no such alterations shall be made without Landlord's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed (in no event later than ten (10) business days from
receipt of Tenant's request therefor). Notwithstanding the foregoing, Tenant
shall be permitted to make interior non-structural alterations to the Premises
costing less than $20,000. per year (which cost does not include the cost of
replacing floor and/or wall covering) without Landlord's consent, so long as (a)
such alterations do not affect the exterior appearance, mechanical systems and
sprinkler systems of the Building, and (b) Tenant provides Landlord with copies
of the plans and specifications for such alterations. Any such alterations shall
become the property of Landlord at the expiration of this Lease but Tenant may
at its option, at any time during the Initial Term or any extensions thereof,
remove all or any of the nonstructural alterations and additions, including, but
not limited to, movable partitions, personal property and equipment, trade
fixtures, safes, computer equipment, alarm system, fire-suppressant system, air
conditioning equipment installed by Tenant, cypher, simplex or other locks,
white boards and any security or computer installations now or hereafter
installed by Tenant; provided, however, Tenant shall repair at its expense any
damage caused to the Premises in removing such item(s), and further provided
that, in all events, Landlord shall have the right to require Tenant to remove
all such items upon the expiration or earlier termination of this Lease. All
alterations, additions and partitions not so removed within five (5) business
days after the termination of the Lease shall become the property of the
Landlord. No structural alterations may be made to the Premises by Tenant
without Landlord's prior written consent, which consent may be withheld in
Landlord's sole and absolute discretion.
7
<PAGE>
B. Notwithstanding anything to the contrary contained in Section
7.A. above, (a) Tenant shall not be required to remove any alarm system,
fire-suppressant system or air conditioning system installed by Tenant and (b)
if the Landlord consents to any alterations or additions made by Tenant pursuant
to Section 7.A., Landlord will, as a part of such consent, advise Tenant whether
it desires Tenant to remove such alterations or additions upon the expiration or
earlier termination of this Lease, and if the Landlord fails to so advise
Tenant, then it shall conclusively be presumed that no such removal by Tenant
will be required.
8. SIGNS
Upon prior approval by Landlord of the use, content and design, and in
accordance with all applicable codes and ordinances, Tenant shall have the right
to install (a) signage in the entry area to the Premises and (b) a sign on the
corner of the Building, facing First Avenue. Such signage shall be furnished and
installed at Tenant's sole cost and expense. The signs, plans for which are
attached hereto as Exhibit D., are hereby approved. Tenant shall have the right
to include its name on the directional sign in the parking lot and the Landlord
shall modify the sign adjacent to the parking lot by the building, which
currently refers to the American Baptist Church parking only, to provide for
tenant parking as well, or to remove the sign entirely, at the Landlord's
option..
9. PARKING
During the Term, plus any extensions, Landlord shall provide Tenant, at
no cost, with non-exclusive parking in Landlord's parking facilities designated
for use by Building Tenants. Such parking facilities are depicted on the site
plan attached hereto as Exhibit E.
10. KEYS
Landlord shall give Tenant a reasonably sufficient number of keys to
the Premises.
11. NO SMOKING
The Building, including the Premises, has been designated a no smoking
building. The smoking of tobacco or use of smokeless tobacco is not allowed in
the Building. Tenant shall
8
<PAGE>
ensure that its employees, agents, invitees, and contractors do not smoke
tobacco or use smokeless tobacco in the Building, including the Premises.
12. POSSESSION: TENANT IMPROVEMENTS
A. Tenant acknowledges that, except as specifically provided
herein to the contrary, Landlord is delivering the Premises to Tenant "as is,
where is" and without any representation or warranty, either express or implied,
as to the condition of the Premises or its fitness or suitability for any
particular purpose or use. Tenant shall be responsible, at Tenant's sole cost
and expense, for the construction and installation of all tenant improvements
set forth in Tenant's Work and in accordance with the plans and specifications
attached hereto or incorporated by reference as Exhibit F. ( the "Plans and
Specifications"). All Tenant improvements shall be contracted and installed in
compliance with the requirements of Section 7., 13.B, 13.C and 15. hereof.
"Tenant's Work" shall be the construction of those improvements in the Premises
and to the exterior of the Building which are substantially in conformance with
the Plans and Specifications, which have been approved by Landlord with the
understanding and agreement that, the partitions installed by Tenant pursuant to
the Plans and Specifications will be removed by Tenant at Tenant's expense upon
the expiration or earlier termination of this Lease.
B. Tenant shall have the right to install fiber optics, data and
telecommunications cabling (herein collectively called "Communications Cables")
to the Premises and to install two (2) thirty-six (36) inch microwave dishes on
the roof of the Building, subject to the following terms and conditions:
(i) Tenant will at all times comply with the requirements of
Sections 7., 13.B., 13.C. and 15. hereof;
(ii) The Communications Cables will be brought to the
Building from First Avenue;
9
<PAGE>
(iii) The microwave dishes shall (a) be subject to Landlord's
prior approval (which shall not be unreasonably withheld, conditioned or
delayed) as to location, design and installation, (b) conform to all applicable
federal, state and local laws, ordinances and building codes, it being
understood that it shall be Tenant's responsibility, at Tenant's sole cost and
expense to obtain any and all required governmental approvals and permits, (c)
in all events be installed in the Building Roof in such a manner as to not be
visible from the ground, and (d) be removed from the Building by Tenant at or
prior to the expiration of the Term or any extensions.
(iv) Tenant will, at Tenant's expense, promptly repair any
damage to the Building or the Premises caused by the installation or removal of
the Communications Cables or the microwave dishes. The provisions of this
subsection (iv) shall survive the expiration or termination of this Lease until
Tenant has repaired any damage to the Building occasioned by such removal.
13. MAINTENANCE AND REPAIR
A. STRUCTURAL MAINTENANCE AND REPAIR. Landlord shall, at its sole
cost and expense, (i) maintain and keep in good order and repair and replace
when necessary, the structural parts of the Building and the Premises, including
but not limited to the shell, exterior skin, bearing walls, glass mullion
system, flooring (but not floor covering), stairs and stairwells, main utility
connections, main electrical service, the roof, roof deck and roofing membrane,
the foundation, the slab, the parking area(s) servicing the Building, the
plumbing, including replacement or lines, elevator system(s), and repair,
maintenance and replacement of part or all of the air-conditioning, heating and
ventilation system(s); (ii) repair any damage which is covered by the standard
form of fire, extended coverage, malicious mischief and vandalism insurance
carried by Landlord, and shall repair all broken glass in the Premises; (iii)
repair the Premises and any and all damage of any kind in connection therewith
caused by the negligent of intentional acts of Landlord, its employees, agents,
invitees, or contractors.
B. NON-STRUCTURAL MAINTENANCE AND REPAIR. Tenant shall maintain
and keep in good order and repair, the interior, exposed non-structural parts of
the Premises, including the replacement of light tubes or bulbs in the Premises.
10
<PAGE>
Notwithstanding anything contained herein or elsewhere to the contrary,
Tenant shall not be obligated to make or pay for any alterations, additions or
improvements to the Building, or any building system or component that may be
required by any applicable law (including, The Americans With Disabilities Act)
unless the requirement results from Tenant's particular use of the Premises or
the construction by or for Tenant of any additions, alterations or improvements
to the Premises.
C. MECHANIC'S LIENS. If any mechanic's lien is filed against the
Premises, or the real property of which the Premises are a part, for work
claimed to have been done for or materials claimed to have been furnished to
Tenant, pursuant to this Lease, such mechanic's lien shall be discharged or
bonded by Tenant, at its sole cost and expense, within thirty (30) days after
Tenant receives written demand to discharge said lien from Landlord, by the
payment thereof or by filing any bond required by law. If Tenant shall fail to
discharge or bond any such mechanic's lien, Landlord may, at its option,
discharge the same and charge Tenant for the cost thereof, including reasonable
attorneys fees. Tenant shall indemnify and hold Landlord harmless from and
against any and all expenses, liens, claims or damages to any person or property
which may or might arise by reason of the making of any such alterations,
additions, or improvements.
14. ENTRY BY LANDLORD
Landlord, its agents and employees, shall have the right to enter the
Premises during Tenant's normal business hours upon reasonable notice, and
without notice at any time, in the event of an emergency, to make repairs and to
maintain the Building of which the Premises are a part, to show the Building to
prospective buyers and mortgagees and, within the last sixty (60) days of the
Term, or any extension(s) thereof, to prospective tenants. In the event Landlord
exercises this Section 14 right, Landlord shall use best efforts not to
interfere with Tenant's business and shall be responsible for any damage caused
by its negligence or wilful misconduct.
15. LIABILITY AND INSURANCE AND INDEMNITY
A. Landlord will purchase, at its sole cost, and maintain during
the term of this Lease and any extensions thereof, fire and extended coverage
insurance on the Building in an amount equal to not less than the full
replacement cost of the Building and comprehensive
11
<PAGE>
general liability insurance in an amount not less than $2 million combined
single limit for bodily injury and property damage.
B. Tenant shall purchase, at its own expense, and maintain during
the term of this Lease and any extensions thereof, fire, extended coverage,
malicious mischief, and vandalism insurance on the contents of the Premises
owned or leased by Tenant and comprehensive general liability insurance in an
amount not less than $2 million combined single limit for bodily injury and
property damage arising out of its use of occupancy of the Premises. Tenant
shall name Landlord as an additional insured on its liability policy. Such
policy shall contain a provision that it may not be canceled without written
notice to Tenant at least 10 days prior to such cancellation.
Tenant shall have the right, but not the obligation, to satisfy its
obligations under this Section through one or more so-called "blanket" or
"umbrella" policies of insurance, provided, however, that the coverages afforded
thereby must in all events satisfy the requirements set forth in this Section.
Any insurance policy or policies maintained by Tenant may contain deductibles in
such commercially reasonable amounts as Tenant may reasonably desire.
C. Tenant shall supply Landlord with Certificates of Insurance
required by Section 15.B. prior to the Construction Commencement Date.
D. Prior to the commencement of any work done by Tenant at the
Premises or the Building, Tenant shall procure or cause to be procured policies
of builders risk and workers compensation insurance reasonably satisfactory to
Landlord, and, in the case of the builders risk insurance, naming Landlord as an
additional insured thereon. Certificates evidencing such insurance shall be
delivered to Landlord prior to the commencement of any work.
E. Tenant shall indemnify and hold harmless Landlord from and
against any and all losses, damages, liabilities, and claims arising from any
activity, work or things done, permitted or suffered by Tenant in the Building
and the Premises. Tenant shall further indemnify and hold harmless Landlord from
and against any and all suits and/or claims arising from any breach or defaults
in the performance of any obligation on Tenant's part to be performed under
12
<PAGE>
the terms of this Lease which default or breach remains uncured after the
expiration of the applicable notice and cure periods or arising from any act or
omission of the Tenant or any of Tenant's agents, contractors, invitees or
employees while in the Premises, and from and against all costs, attorneys fees,
expenses and liability incurred in the defense of any claim or action or
proceeding brought thereon. If any case or action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense with counsel reasonably acceptable to
Tenant.
Notwithstanding any other provisions herein to the contrary, Landlord
shall indemnify and hold harmless Tenant from and against any and all losses,
damages, liabilities, claims, suits, and expenses suffered by Tenant, occasioned
by, arising or resulting form Landlord's or Landlord's agents', contractors', or
employees' negligence or willful, wrongful acts or omissions in or from (i) its
use of the Premises, (ii) the conduct of Landlord's business, (iii) any
activity, work, or things done by Landlord or Landlord's agents, contractors or
employees in or about the Premises, or (iv) any breach or default by Landlord in
the performance of its obligations hereunder, which default or breach remains
uncured within a reasonable time after written notice from Tenant of such
default or breach.
If any claim for loss, damage, liability, or expense is sought against
either party for which indemnification is sought hereunder, the indemnifying
party, upon notice from the other, shall defend the same at the indemnifying
party's expense.
Landlord and Tenant shall each use their best efforts to obtain from
their respective insurers under all policies of fire, theft, public liability
and other insurance maintained by either of them at any time during the Term
hereof insuring or covering the Premises or operations thereon, a waiver of all
rights of subrogation which the insurer of one party might have against the
other party. Notwithstanding any provision of this Agreement to the contrary,
Landlord and Tenant each hereby waives all claims for recovery against the other
for any loss or damage which may be inflicted upon the property of such party
even if such loss or damage shall be brought about by the fault or negligence of
the other party or its agents, but such waiver shall apply only to the extent
that the loss or damage in question is covered by insurance, or required to be
provided and maintained hereunder.
13
<PAGE>
If either Landlord or Tenant is unable to obtain a waiver of subrogation from
its insurance carrier without payment of an additional premium therefor, then
such party will not be required to obtain the waiver of subrogation: provided,
however that before such party notifies its insurance carrier that it will not
pay the additional premium, the party will notify the other party hereto in
writing and shall give the other party a period of thirty (30) days within which
such other party may pay the additional premium itself at its own cost.
16. DAMAGE AND DESTRUCTION TO THE PREMISES
In the event that less than fifty percent (50%) of the Premises or the
Building of which the Premises are a part are damaged or destroyed by fire, the
elements, or any other cause or casualty, Landlord shall, and to the extent such
damage or destruction is covered by the proceeds of Landlord's insurance
required to be maintained hereunder, repair the Premises or Building within
forty-five (45) days of such damage or destruction. Within ten (10) days of such
damage or destruction, Landlord shall notify Tenant if the same can be repaired
within forty-five (45) days of such damage or destruction. If such repairs are
not or cannot be completed within said forty-five (45) days, either Tenant or
Landlord may cancel the entire Lease or may cancel the Lease as to the
unrepaired portion of the Premises as of the date of such damage or destruction
upon written notice to the other. Rent for the undamaged area, if any, continued
to be leased by Tenant shall then be an amount that bears the same relationship
to the total rent for the Premises as the amount of square feet remaining bears
to the total square foot area of the Premises. Upon termination of the Lease,
all rent, if any, paid in advance shall be apportioned as of the date of the
damage or destruction.
In the event that more than fifty percent (50%) of the Premises or the
Building are damaged or destroyed by fire, the elements, or other cause or
casualty, Landlord shall, within thirty (30) days of such damage or destruction,
notify Tenant whether Landlord intends to repair such damage or destruction. If
Landlord elects not to so repair, then this Lease shall terminate as of the date
of such election. If Landlord elects to so repair, but such repairs are not or
cannot be completed within one hundred and eighty (180) days after the date of
Landlord's election, then either Tenant or Landlord may cancel the entire Lease
or may cancel the Lease as to the damaged portion of the Premises by providing
written notice to the other. Rent for the undamaged area, if any, continued to
be leased shall then be an amount that bears the same relationship to the total
14
<PAGE>
rent for the Premises as the amount of square feet remaining bears to the total
square foot area of the Premises. Upon termination of the Lease, all rent. if
any, paid in advance shall be apportioned as of the date of damage or
destruction.
17. EMINENT DOMAIN
If either (i) thirty percent (30%) or more of the Premises or (ii) any
portion of the Building or the parking area which materially adversely affects
the operation of Tenant's business shall be taken for public use by right of
eminent domain or transferred by agreement under threat of such taking, this
Lease shall terminate as of the date of such taking, except that Tenant shall
have the right to prove and collect the value of the trade fixtures installed by
it and moving expenses, but for no other damages including the value of the
unexpired term of this Lease. In the event of the termination of this Lease
under the provisions of this Section 17., all rent paid in advance shall be
apportioned and returned to the Tenant as of the date of such taking. In the
event that less than thirty percent (30%) of the Premises shall be so taken and
such taking does not materially adversely affect Tenant's operations in the
Premises, then this Lease shall not terminate and there shall be a reduction in
the rent in corresponding proportion to the reduction in square footage of the
Premises.
18. SUBORDINATION
This Lease shall be subordinate to any mortgage, deed of trust, or
other lien which now or hereafter encumbers the Premises provided that a
Subordination, Non-Disturbance and Attornment Agreement in recordable form and
reasonably acceptable to Tenant is executed by Landlord, Tenant and the holder
of any such mortgage, deed of trust or lien. Said Agreement shall provide in
substance that, so long as Tenant is not in default under the terms and
conditions of this Lease beyond the expiration of the applicable notice and cure
periods thereof, and agrees to recognize the lender under any such mortgage,
deed of trust or other lien as the Landlord under this Lease upon the occurrence
of any of the hereinafter described events, then neither this Lease nor Tenant's
rights hereunder shall be terminated or affected by any sale, foreclosure,
transfer, assignment or hypothecation of the Premises or the Building or the
real property on which the Building is situated.
15
<PAGE>
19. ESTOPPEL CERTIFICATE
Each party, within twenty (20) business days after notice from the
other party, shall execute and deliver to the other party, a certificate
substantially in the form attached hereto as Exhibit G, stating that this Lease
is unmodified and in full force and effect, or in full force and effect as
modified, and stating the modifications. The certificate also shall state the
amount of monthly rental and the dates to which the rent has been paid in
advance. Failure to deliver the certificate within the twenty (20) business days
shall be an event of default under this Lease Agreement.
20. DEFAULT OF TENANT/LANDLORD'S RIGHTS AND REMEDIES
A. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute a default (herein, an "Event of Default")
hereunder by Tenant:
i) The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due, where
such failure shall continue for a period of ten (10) days after Tenant's receipt
of written notice that same is past due;
ii) The failure by Tenant to observe or perform any of the
other express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, where such failure shall continue for a period of thirty
(30) days after written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant shall commence such cure promptly and shall
thereafter diligently prosecute such cure to completion, which completion may
not occur later than sixty (60) days from the date of Landlords notice;
iii) If Tenant shall be adjudicated as bankrupt or becomes
insolvent as a matter of law, or shall file or have filed against it a petition
for bankruptcy under the Federal Bankruptcy Code, and such petition is not
dismissed within sixty (60) days after the date of filing, or shall make an
assignment for the benefit of creditors.
iv) A dissolution or liquidation of Tenant.
16
<PAGE>
B. Upon the occurrence of an Event of Default, Landlord may, at
any time thereafter and in addition to all other available legal or equitable
rights and remedies, elect any one or more of the following remedies:
i) upon an additional five (5) days' written notice to
Tenant, declare to be immediately due and payable, on account of the rent,
additional rent and other charges herein reserved for the balance of the term of
this Lease (taken without regard to any early termination of said term on
account of default), a sum equal to the Accelerated Rent Component (as
hereinafter defined) and Tenant shall pay such amount in equal monthly
installments during the remaining Term on the days on which rent is payable in
accordance with Section 3;
ii) whether or not Landlord has elected to recover the
Accelerated Rent Component, terminate this Lease on at least an additional five
(5) days' written notice to Tenant, whereupon on the date specified in this
notice, this Lease and the Initial Term and any extensions thereof and all
rights of Tenant under it shall expire and terminate and Tenant shall thereupon
quit and surrender possession of the Premises to Landlord in as good order and
condition as at the inception of the term of this Lease (or in such condition as
the same hereafter may be improved by Landlord or Tenant), reasonable wear and
damage by fire or other casualty and repairs which are Landlord's obligation
excepted. As a cumulative and alternative remedy of Landlord, in the event of
termination of this Lease by Landlord following any Event of Default by Tenant,
Landlord, at its option, shall be entitled to recover damages for such breach in
an amount equal to (x) the Accelerated Rent Component (determined from and after
the date of Landlord's election under this Subsection B(ii) less (y) the fair
rental value of the Premises for the remainder of the term of this Lease (taken
without regard to the early termination) discounted to present value on the
basis of a discount rate equal to 200 basis points above the "Prime Rate"
announced by First Union Bank at the time of demand by Landlord to recover these
damages, and such damages shall be payable by Tenant upon demand.
C. ACCELERATED RENT COMPONENT. For purposes of this Lease, the
"Accelerated Rent Component" shall mean the aggregate of:
17
<PAGE>
i) all rent and other charges, payments, costs and
expenses due from Tenant to Landlord and in arrears at the time of the
election of Landlord to recover the Accelerated Rent Component;
ii) the rent reserved for the then entire unexpired
balance of the term of this Lease (computed without regard to any early
termination of the term by virtue of any default), plus all other charges,
payments, costs and expenses herein agreed to be paid by Tenant up to the end
of said term which shall be capable of precise determination at the time of
Landlord's election to recover the Accelerated Rent Component, discounted to
present value on the basis of a discount rate equal to 200 basis points above
the "Prime Rate" announced by First Union Bank at the time of the election by
Landlord to recover the Accelerated Rent Component.
D. CONTINUING LIABILITY. Tenant shall, with respect to all
periods of time up to and including the scheduled expiration or earlier
termination of this Lease remain liable to Landlord.
E. CUMULATIVE RIGHTS. All rights and remedies of Landlord
enumerated in this Section 20. shall be cumulative and none shall exclude any
other right or remedy. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to seek an injunction restraining a violation or
attempted violation of any of the covenants, agreements or conditions of this
Lease.
F. SURRENDER OF POSSESSION. Upon termination of this Lease,
Tenant shall surrender possession and vacate the Premises immediately and
deliver possession to Landlord, and Tenant hereby grants to Landlord full and
free license to enter into and upon the Premises in such event with due process
of law and to repossess the Premises and in accordance with applicable law to
expel or remove Tenant and any others who may be occupying or within the
Premises in accordance with applicable law and to remove any and all property
from it, without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer and without relinquishing Landlord's right to rent or
any other right given to Landlord hereunder or by operation of law.
18
<PAGE>
G. WAIVER OF DEFENSES. Tenant expressly waives:
i) The right to ten days, fifteen days or thirty days
notice required under certain circumstances by the Pennsylvania Landlord and
Tenant Act of 1951, as amended, Tenant hereby agreeing that the respective
notice periods provided for in this Lease shall be sufficient in either or
any such case.
ii) The right to trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other on
or with respect to any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the Premises, and/or any claim of injury or
damage.
H. REMOVAL OF PROPERTY. Following a termination of this Lease by
reason of default by Tenant beyond the expiration of the applicable notice and
cure periods any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or by law, to which Tenant is
or may be entitled, may be handled, removed or stored by Landlord at the risk,
cost and expense of Tenant, and Landlord shall in no event be responsible for
its value, preservation or safekeeping. Tenant shall pay to Landlord, upon
demand, any and all expenses incurred in connection with such removal and all
storage charges applicable to such property so long as the same shall be in
Landlord's possession or under Landlord's control. Any such property of Tenant
not removed from the Premises or retaken from storage by Tenant within fifteen
(15) days after the end of the earlier of either the term of this Lease or of
Tenant's right of possession of the Premises, however terminated, shall be
conclusively deemed to have been forever abandoned by Tenant and may be retained
by Landlord as its property or may be disposed of in such manner as Landlord may
see fit.
I. NO DUTY TO RELET. Landlord shall in no event be responsible or
liable for any failure to relet the Premises or any part of it, or for any
failure to collect any rent due upon any reletting, although Landlord shall use
its best efforts to re-let the Premises.
19
<PAGE>
J. BANKRUPTCY. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove for and obtain as damages incident to a
termination of this Lease in any bankruptcy, reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect
when such damages are to be proved. Subject to the United States Bankruptcy Code
the determination by Tenant to request relief under any insolvency proceeding,
including any state or federal insolvency, bankruptcy, creditor adjustment or
debtor rehabilitation laws, terminates the estate created in Tenant and the
Premises shall not become an asset in any such proceedings. In the event of such
a determination by Tenant, Landlord shall have, without need of further notice,
the rights enumerated in this Paragraph 20.
K. LANDLORD'S RIGHT TO CURE. Tenant agrees that if it shall at
any time fail to make any payment or perform any other act on its part to be
made or performed under this Lease beyond the expiration of the applicable
notice and cure period, Landlord may, but shall not be obligated to, after
written notice and demand to Tenant and without waiving or releasing Tenant from
any of its obligations under this Lease, make such payment or perform such other
act to the extent Landlord may deem desirable and in that connection, to pay
expenses and employ legal counsel. All sums paid by Landlord pursuant to this
subparagraph and all expenses in connection with it, together with interest at
First Union Bank's prime rate of interest plus two percent (2%) per annum
calculated from the date of payment by Landlord, shall be deemed to be
additional rent and shall be payable upon demand by Landlord and Landlord shall
have the same right and remedies for its nonpayment as in the case of default in
the payment of rent.
L. If Tenant is in default of this Lease for the same or
substantially the same reason more than three times during any twelve (12) month
period, then Tenant shall not have any right to cure such repeated default, the
terms and conditions of subsections (A) (i) and (ii) of the section of this
Lease entitled, "DEFAULT OF TENANT/LANDLORD'S RIGHTS AND REMEDIES",
notwithstanding. In such event, Landlord shall have available to it and may
exercise all remedies provided for in that section of this Lease for an uncured
default.
M. POSSESSORY CONFESSION OF JUDGMENT. WHEN THIS LEASE AND ITS
TERM SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY EVENT OF DEFAULT AND ALSO WHEN
THE TERM HEREBY CREATED SHALL HAVE EXPIRED,
20
<PAGE>
AND IN BOTH EVENTS UPON AN ADDITIONAL FIVE (5) DAYS WRITTEN NOTICE TO TENANT, IT
SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY
FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE AND
TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN
EJECTMENT AGAINST LESSEE AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE
AND TO CONFESS JUDGMENT FOR THE RECOVERY BY LESSOR OF POSSESSION OF THE
PREMISES, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT. THEREUPON, IF LESSOR
SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE PROMPTLY, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT POSSESSION OF THE
PREMISES SHOULD REMAIN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT FOR
THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE OR OF LESSEE'S RIGHT OF POSSESSION TO BRING ONE OR
MORE FURTHER AMICABLE ACTION OR ACTIONS TO RECOVER POSSESSION OF THE PREMISES
AND TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES AS
PROVIDED. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE
RIGHT OF LESSOR TO INITIATE AN AMICABLE ACTION IN EJECTMENT AS SPECIFIED ABOVE
SHALL NOT PRECLUDE OR LIMIT LESSOR'S RIGHT TO INITIATE AN AMICABLE ACTION FOR
RENT (INCLUDING BUT NOT LIMITED TO, ALL UNPAID RENT FOR THE BALANCE OF THE TERM
OF THIS LEASE).
N. AFFIDAVITS. IN ANY AMICABLE ACTION OF EJECTMENT, LESSOR
SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY LESSOR OR
SOMEONE ACTING FOR LESSOR, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE
ENTRY OF JUDGMENT AND IF A TRUE COPY OF THIS LEASE (AND OF THE TRUTH OF THE
COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) SHALL BE FILED IN SUCH
SUIT, ACTION OR ACTIONS, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A
WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY
NOTWITHSTANDING.
21. NO WAIVER OF BREACH
No failure or neglect by either party to assert or enforce any rights
or remedies because of any breach or default by the other hereunder shall
prejudice or affect their respective rights and remedies with respect to any
subsequent breaches or defaults.
22. DEFAULT OF LANDLORD/TENANT'S RIGHTS AND REMEDIES.
A. The occurrence of any one or more of the following events
shall constitute a default (herein, a "Landlord's Default") by Landlord:
21
<PAGE>
1. The failure by Landlord to make any payment required to
be made by Landlord under this Lease, and Landlord's failure to cure such
failure either by the payment of money, by the posting of a bond or by the
commencement of litigation against the party claiming the obligated payment is
due, within thirty (30) days after written notice of such failure by Tenant;
2. The failure by Landlord to observe or perform any of its
other obligations under this Lease, and Landlord fails to cure such failure
within thirty (30) days after written notice of such failure by Tenant provided,
however that if the nature of Landlord's default is such that more than thirty
(30) days are reasonably required for its cure, then Landlord shall not be
deemed to be in default if Landlord shall commence such cure promptly and shall
thereafter diligently prosecute such cure to completion as soon as reasonably
possible.
B. Upon the occurrence of a Landlord's Default, Tenant may,
at its option, cure the Landlord's Default as follows:
1. If the Tenant elects to cure a default with respect to
Landlord's maintenance and repair obligation, Tenant shall, prior to the
commencement of any maintenance or repair work, provide Landlord with the
following information: (a) a specific description of the work proposed to be
performed by Tenant, (b) the name of Tenant's contractor; the Tenant's
contractor shall be subject to Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed, (c) a copy of the contract
between Tenant and Tenant's contractor, (d) certificates of builders risk
insurance and liability insurance in reasonably satisfactory amounts, naming
Landlord and Tenant as additional insureds, (e) a certificate evidencing the
contractor's worker's compensation insurance in coverages as required by law,
(f) a waiver of liens by Tenant's contractor in recordable form, (g) evidence
that the waiver of liens has been properly recorded prior to the commencement of
the work, (h) if the work requires that equipment and materials be stored
outside the Building, then a drawing by Tenant showing the proposed location of
the staging area for such equipment and materials. The location of the staging
area shall interfere as little as possible with Landlord's parking area and with
ingress and
22
<PAGE>
egress to and from the Building by other tenants thereof, and shall otherwise be
subject to Landlord's prior written approval and (i) if the budgeted or
contracted cost of the work exceeds fifty thousand dollars ($50,000.), then a
satisfactory completion bond shall also be provided. All materials used shall be
of at least equal quality with respect to those currently existing at the
Premises.
2. If the Tenant elects to cure a Landlord's Default under
Section 22.A.1. above, Tenant shall provide Landlord in writing with a specific
description of the defaulted obligation, and the approximate amount necessary to
cure same. Landlord shall then have an additional period of thirty (30) days
within which to cure said default either by the payment of money, the posting of
a bond or the commencement of litigation against the party claiming the alleged
payment is due.
3. Landlord shall reimburse Tenant for the Tenant's actual
cost (the "Cost") to cure the Landlord's Default, promptly upon receipt of
written demand therefor from Tenant (accompanied by adequate invoices in
reasonable detail, supported by reasonable evidence substantiating the Cost and
substantiating Tenant's payment of the Cost). If the Landlord fails to pay the
Cost in full within thirty (30) days following Tenant's delivery of such written
demand as described above, then the Tenant may setoff or withhold the Cost,
together with interest thereon at First Union Bank's prime rate of interest plus
two percent (2%) per annum, from future rent until Tenant has received the full
amount of the Cost; provided, however that Tenant's right of setoff hereunder
shall not limit any of Tenant's other rights to otherwise recover from Landlord
the full amount of the Cost, plus interest.
23. QUIET POSSESSION
Landlord agrees that upon compliance with the terms and conditions of
this Lease, Tenant shall at all times have the right to quiet use and enjoyment
of the Premises and Tenant shall peaceably and quietly have, hold and enjoy the
Premises for the lease term provided herein and any extensions thereof.
24. SURRENDER
23
<PAGE>
At the expiration of the term of this Lease or any extension thereof,
and subject to Section 6 hereinabove, Tenant shall surrender the Premises in the
same condition Tenant received them, reasonable wear and tear, ordinary
deterioration. and any damage caused by fire, the elements, or any other cause
or casualty excepted.
25. STATUS OF PARTIES ON TERMINATION OF LEASE
Notwithstanding anything provided elsewhere herein, if a party elects
to terminate this Lease pursuant to the provisions under this Lease, then on the
date the Lease terminates the parties shall be released from further liabilities
and obligations other than obligations which by their terms are to be performed
after Lease termination and other than payments specifically required under this
Lease to be prorated between the parties or paid to Tenant or Landlord upon or
after termination of the Lease.
26. ASSIGNMENT AND SUBLETTING
Tenant shall not voluntarily assign, transfer, mortgage, pledge,
hypothecate or encumber this Lease or any interest therein to any party other
than a parent, subsidiary, affiliate or successor in interest of Tenant and
shall not sublet the Premises or any part thereof to any party other than a
parent, subsidiary, affiliate or successor in interest of Tenant, or any right
or privilege appurtenant thereof, or allow any person (the employees, agents,
servants, customers, invitees, and parent, subsidiary, affiliate or successor in
interest to Tenant excepted) to occupy or use the Premises or any portion
thereof, without the prior written consent of the Landlord. A consent to one
assignment, subletting, occupation or use by one person shall not be deemed to
be a consent to any subsequent assignment, subletting, occupation or use by
another person. Consent to any such assignment or subletting shall not relieve
Tenant or any guarantor of Tenant's obligations hereunder of any liability under
this Lease. Notwithstanding the foregoing, Landlord may, among other reasons,
withhold its consent to an assignment or subletting if the business of the
proposed assignee or subtenant violates the Landlord's then existing policies
(if any) against contracting with or investing in certain categories of
businesses.
Notwithstanding any provision contained herein to the contrary: (a) a
change in the ownership of more than 50% of the stock of Tenant as of the date
hereof, (b) any merger, consolidation or other business combination of, with or
involving Tenant, a subsidiary of Tenant
24
<PAGE>
or a corporation or entity owning more than 50% of the stock of Tenant as of the
date hereof, items (a) and (b) within this subsection being hereinafter referred
to as "Corporate Transactions:; the purchaser of all or substantially all of
Tenant's assets, or the surviving entity following any one or more of the
remaining corporate transactions described herein, as assignee of this lease,
being herein sometimes referred to as a "Corporate Assignee") shall not require
Landlord's prior written consent, so long as Tenant's or the Corporate
Assignee's creditworthiness after the Corporate Transaction equals or exceeds
Tenant's creditworthiness as of the date of this Lease. Nothing in this Lease
shall limit or prohibit the initial public offering or subsequent trading of
Tenant's stock on a recognized securities exchange or market, or any change in
stock ownership or control resulting therefrom.
27. NOTICES
Whenever any notice, demand, approval, consent, request, or election is
given or made pursuant to this Lease, it shall be in writing. Communications of
Landlord shall be addressed: American Baptist Churches USA, North Gulph Road at
First Ave., King of Prussia, PA 19406, att: Cheryl Wade, with a copy to John S.
Randolph, Jr., Esq., 259 N. Radnor-Chester Road, Suite 200, Radnor, PA 19087, or
other such address as may have been specified by prior written notice by
Landlord to Tenant. Communications to Tenant shall be addressed to Infonautics
Corporation, 590 North Gulph Road, Valley Forge, Pennsylvania 19482, attn:
Gerard J. Lewis, Vice President and General Counsel and attn: Federica O'Brien,
CFO with a copy to Morgan, Lewis & Bockius LLP, 1701 Market Street,
Philadelphia, Pennsylvania 19103, attn: Basil S. Donnelly, Esquire or to such
other address as may have been specified by prior written notice to Landlord.
Any communications so addressed shall be deemed given when received and shall be
deemed received when delivered by express, registered, or certified mail, or by
nationally recognized overnight courier, or delivered by hand, or by facsimile
transmission (Landlord's fax number is 610-768-2275 and Tenant's fax number is
610-971-8859.).
28. ATTORNEYS' FEES
Should any party hereto employ an attorney for the purpose of
enforcing, construing, or declaring rights under this Lease, in any legal
proceeding whatsoever, including bankruptcy, arbitration, declaratory relief or
other litigation, the prevailing party shall be entitled to receive
25
<PAGE>
from the other party or parties thereto reimbursement for all reasonable
attorneys' fees and all costs, including but not limited to, service of process,
filing fees, court and court reporter costs, investigative costs, expert witness
fees, and the cost of any bonds, whether taxable or not. and that such
reimbursement shall be included in any judgment or final order issued in the
proceeding. The "prevailing party" means the party determined by the court to
most nearly prevail.
29. HOLDING OVER
A. In the event Tenant does not immediately surrender the
Premises on the date of expiration of the Initial Term or Renewal Term, as
applicable, Tenant shall, by virtue of this paragraph of the Lease, become a
month to month Tenant.
B. Tenant hereby agrees to pay to Landlord as rent during its
tenancy after the expiration of the Initial Term or Renewal Term, as applicable,
a monthly amount equal to (i) one and one-half (1.50) times the amount of the
rent in effect during the last month of the applicable Initial Term or Renewal
Term, if the Landlord has not consented in writing to such holdover Tenancy. In
addition to the rent provided for above, Tenant shall be liable for all costs,
losses, claims and liabilities (including reasonable attorney's fees) which
Landlord may incur as a result of Tenant's failure to surrender possession of
the Demised Premises to Landlord at the expiration of the Initial Term or
Renewal Term, as applicable, including any costs arising from instigation and
prosecuting proceedings to dispossess Tenant. Rent assessed to Tenant under this
paragraph shall not be deemed liquidated damages for Landlord's losses resulting
from Tenant's holdover.
C. In the event Tenant holds over after the expiration of the
Initial Term or Renewal Term and Landlord desires to regain possession of the
Premises promptly at the expiration of the Initial Term or Renewal Term, as
applicable, then at any time prior to Landlord's acceptance of the rent
specified in subparagraph 29. B above from Tenant, Landlord, at its option, may
forthwith reenter and take possession of the Premises by any legal process in
force in the Commonwealth of Pennsylvania.
26
<PAGE>
30. TIME OF ESSENCE
Time is of the essence of this Lease and each and all of its provisions
in which performance is a factor.
31. SUCCESSORS AND ASSIGNS
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
32. CUMULATIVE REMEDIES
No remedy or election hereunder shall be deemed exclusive but shall be
cumulative with all other remedies in law or equity.
33. TERMS AND HEADINGS
The titles of the paragraphs of this Lease are for convenience of
reference only and are not to be considered in construing this Lease.
34. ENTIRE AGREEMENT
This Lease and Exhibits A, B, C, D, E, F and G attached hereto, contain
the entire agreement of the parties and no representations, inducements,
promises, or agreements oral or otherwise, not embodied herein shall be of any
force or effect.
35. REPRESENTATIONS AND WARRANTIES.
A. Each signatory executing this Lease represents and warrants
that he or she is duly authorized to execute and deliver this Lease on behalf of
the Landlord or Tenant, as applicable, and that the signatory's authority is in
accordance with the law and is binding upon the Landlord or Tenant accordingly.
This Lease shall be valid and legally binding upon the parties when this Lease
has been properly executed on behalf of all of the parties.
B. Landlord represents and warrants to Tenant that Landlord is
the fee owner of the Building and that as of the date hereof there are no
mortgages, deeds of trust or other security instruments encumbering the Building
which secure indebtedness of Landlord, and that there are
27
<PAGE>
no private restrictions encumbering the Building which will affect Tenant's use
of the Premises permitted under Section 5. hereof.
36. CONTROLLING LAW
This Lease shall be construed and enforced in accordance with the laws
of the Commonwealth of Pennsylvania.
37. MISCELLANEOUS
A. Landlord and Tenant each represent and warrant one to each
other that, except as hereinafter set forth, neither of them has employed any
broker in carrying on the negotiations, or had any dealings with any broker,
relating to this Lease. Landlord represents that it has employed Insignia/ESG,
Inc. as its broker and Tenant represents that it is represented by Julien J.
Studley, Inc., Landlord agrees to pay the commissions accruing to Insignia/ESG,
and to Julien J. Studley, pursuant to certain outside agreements. Landlord shall
indemnify and hold Tenant harmless, and Tenant shall indemnify and hold Landlord
harmless, from and against any claim or claims for brokerage or other commission
arising from or out of any breach of the foregoing representations and
warranties by the respective indemnitor.
B. If Landlord shall be in default under this Lease or shall
otherwise incur any liability to Tenant, and if as consequence thereof Tenant
obtains a judgment against Landlord, such judgment shall be satisfied only
against the Building and the rents, issues, profits and proceeds therefrom. In
no event shall Tenant have the right to levy execution against any property of
Landlord other than the Building.
C. Notwithstanding any provision in this Lease, in no event shall
Landlord or Tenant be liable for any indirect or consequential damages in
connection with this Lease, the use of the Property or for any other reason
whatsoever. Any damages specifically identified, referred to or described in
this Lease shall not be deemed to be "indirect" or "consequential" damages
within the meaning of this subsection.
28
<PAGE>
38. HAZARDOUS SUBSTANCES
A. As of the date of this Lease, Landlord represents to Tenant
that, to the best of Landlord's knowledge, there are no Hazardous Substances in,
under or upon the Premises as of the date hereof. In the event any Hazardous
Substances are discovered in, under or upon the Premises and are not introduced
into the Premises by Tenant, Tenant shall so notify Landlord and request that
Landlord remediate the Premises. If the Landlord elects to so remediate,
Landlord shall so notify Tenant within thirty (30) days after such notice from
Tenant, whereupon Landlord shall promptly remediate the Premises pursuant to all
applicable laws and Tenant shall receive a proportionate abatement of rent until
the Premises are completely restored and Tenant has received reasonable evidence
that the remediation is complete. In the event Landlord fails to promptly
remediate such Hazardous Substances or fails to diligently prosecute such
remediation or in the event more than thirty-five percent (35%) of Tenant's
business operation (in Tenant's reasonable opinion) is adversely affected as a
result of such Hazardous Substances (or the remediation thereof), Tenant shall
have the right to terminate this Lease upon fifteen (15) days' written notice to
Landlord. "Hazardous Materials" shall mean and include any and all substances,
chemicals, wasters, sewage, or other materials that are now or hereafter
regulated, controlled, or prohibited by any local, state or federal law or
regulation, requiring removal, warning, or restrictions on the use, generation,
disposal or transportation thereof including, without limitation, (i) any
substance defined as a "hazardous substance", "Hazardous material", "hazardous
waste", "toxic substance", or "air pollutant" in the Comprehensive Environmental
Response, Compensation and Liability Act, ("CERCLA"), 42 U.S.C. Section 9501,
set seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801,
set seq., the Resource Conservation and Recovery Act, ("RCRA"), 42 U.S.C.
Section 6901, set seq., the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251, set seq., or the Clear Air Act, 42 U.S.C. Section 7401, set seq.,
all as amended and amended hereafter, and (ii) any hazardous substances,
hazardous wastes, toxic substances, toxic wastes, hazardous material, wastes,
chemical, or compound described in any other federal, state or local stature,
ordinance, code, rule, regulation or other laws now or at any time hereafter in
effect regulating, relating to or imposing liability or standards or conduct
concerning any hazardous, toxic, or dangerous substance, chemical, material,
compound or waste.
29
<PAGE>
B. Tenant shall not cause nor permit Hazardous Substances to be
used, transported, stored, released, handled, produced or installed in, or from,
the Premises, except that inflammable or combustible (but not explosive) items
may be brought into and used within the Premises as may be needed for the
operation of normal office equipment, so long as both are in compliance with all
laws and governmental requirements.
39. FORCE MAJEURE
It shall be a force majeure event if either party hereto shall be
delayed or prevented from the performance of any act required hereunder (other
than the payment by Tenant of rent or additional rent, or the determination of
the Commencement Date) by reason of acts of God, labor disputes, civil
commotion, war, fire or other casualty, inability to procure materials,
governmental regulations, statues, ordinances, restrictions or decrees, or other
causes beyond the control of the party so obligated (financial inability
excepted), and the period for the performance of any such acts shall be extended
for a period equivalent to the period of such delay, but in no event shall any
such extension exceed a period of sixty (60) days.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
on the day and year first written hereinabove.
LANDLORD: TENANT:
AMERICAN BAPTIST CHURCHES USA INFONAUTICS CORPORATION.
By: /s/ Cheryl H. Wade By: /s/ Van Morris
----------------------------- ---------------------------------
Title: Associate General Secretary Title: CEO
and Treasurer ------------------------------
---------------------------
30
<PAGE>
EXHIBIT A
31
<PAGE>
EXHIBIT B
SCHEDULE OF TENANT'S WORK TO BE PERFORMED AT THE PREMISES
32
<PAGE>
EXHIBIT C
TERM COMMENCEMENT LETTER
__________________, 2000
--------------------------
--------------------------
--------------------------
RE: LEASE AGREEMENT DATED ____________ BETWEEN
AMERICAN BAPTIST CHURCHES USA AND INFONAUTICS CORPORATION,
590 NORTH GULPH ROAD, VALLEY FORGE, PENNSYLVANIA
DEAR ___________________:
The purpose of this letter is to confirm the commencement and termination dates
under the terms of the referenced Lease. In this regard, we would appreciate
your cooperation in verifying the lease dates.
Commencement Date: ____________________
Term: 3 years
If these lease dates are accurate, please execute the duplicate original of this
letter and return same to the undersigned at the address shown above.
I appreciate your prompt attention to this matter.
Very truly yours,
The above dates and renewal option privileges are accurate and are hereby
acknowledged.
--------------------------- -------------------------
By: Date:
33
<PAGE>
EXHIBIT D
SIGN PLAN
34
<PAGE>
EXHIBIT E
SITE PLAN SHOWING PARKING FACILITIES
35
<PAGE>
EXHIBIT F
PLANS AND SPECIFICATIONS
36
<PAGE>
EXHIBIT G
TENANT ESTOPPEL CERTIFICATE
RE: 590 North Gulph Road, Valley Forge, Pennsylvania 19482
To Whom It May concern:
____________________________ ("Landlord") and __________________________
("Tenant") entered into a Lease dated _________ for a portion of the
above-referenced premises (the "Premises"), a true and complete copy of which is
attached hereto (the "Lease"). At the request of the Landlord, the undersigned
certifies that as of the date hereof:
1. The Lease is in full force and effect and has not been amended
or terminated.
2. The current monthly rent is $________.
3. Tenant has paid the rent due and payable under the terms of
the Lease through and including _________, 20___.
4. Tenant has no offsets or claims against the payment of rent or
other charges due under the Lease other than _____________ (if none, add none).
5. To the best knowledge of Tenant as of the date of this
certificate, Landlord is not in default in the performance of any covenant,
agreement or condition contained in the Lease, and the undersigned knows of no
event which, with notice and the passage of time or both, could result in such a
default.
6. To the best knowledge of Landlord as of the date of this
certificate, Tenant is not in default in the performance of any covenant,
agreement or condition contained in the Lease, and the undersigned knows of no
event which, with notice and the passage of time or both, could result in such a
default.
7. The Lease term expires on _____________, and there are two (2)
renewal options under the Lease to extend the term each for three (3) years.
8. No rent has been paid more than one month in advance.
9. The amount of the security deposit presently held by Landlord
is $_______.
10. The person or persons executing this document on behalf of the
undersigned have the power and authority to execute this document.
-------------------------------------------
By:
-------------------------------------------
Dated: _________________, 20___
37