**Exhibit10.20**

 

August 15, 2002

 

LEASE BETWEEN

 

LESSOR:

 

CRANBERRY 200 VENTURE, L.P.

 

AND

 

LESSEE:

 

NOMOS CORPORATION

 

 

DATED: AUGUST 22, 2002

 

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**TABLE OFCONTENTS**

 
| 1.     | PARTIES                                             |   |
|--------|-----------------------------------------------------|--------|
| 2.     | PREMISES                                            |   |
| 3.     | TERM                                                |   |
| 4.     | RENT; SECURITY DEPOSIT                              |   |
| 5.     | LATE  PAYMENT                                       |   |
| 6.     | REAL ESTATE TAX AND OPERATING EXPENSE  PASS-THROUGH |   |
| 7.     | USE  OF PREMISES                                    |   |
| 8.     | CONSTRUCTION OF PREMISES                            |   |
| 9.     | ALTERATIONS                                         |   |
| 10.    | MECHANICS’  LIENS                              |   |
| 11.    | CONDITION OF PREMISES; BUILDING SERVICES            |   |
| 12.    | ASSIGNMENT AND SUBLETTING                           |   |
| 13.    | ACCESS TO PREMISES                                  |   |
| 14.    | REPAIRS                                             |   |
| 15.    | SURRENDER OF PREMISES                               |   |
| 16.    | HOLDING  OVER                                       |   |
| 17.    | INDEMNIFICATION AND LIABILITY                       |   |
| 18.    | INSURANCE                                           |   |
| 19.    | FIRE OR OTHER CASUALTY                              |   |
| 20.    | SUBORDINATION  AND ATTORNMENT                       |   |
| 21.    | CONDEMNATION                                        |   |
| 22.    | ESTOPPEL  CERTIFICATES                              |   |
| 23.    | DEFAULT;  REMEDIES                                  |   |
| 24.    | REMEDIES                                            |   |
| 25.    | WAIVER AND  LESSOR’S LIEN                      |   |
| 26.    | QUIET  ENJOYMENT                                    |   |
| 27.    | UNFORESEEN  DELAY                                   |   |
| 28.    | SUCCESSORS                                          |   |
| 29.    | GOVERNING  LAW                                      |   |
| 30.    | SEVERABILITY                                        |   |
| 31.    | RELOCATION OF LESSEE – INTENTIONALLY  REMOVED  |   |
| 32.    | CAPTIONS                                            |   |
| 33.    | NOTICES                                             |   |
| 34.    | HAZARDOUS MATERIALS                                 |   |
| 35.    | BROKERS                                             |   |
| 36.    | EXECUTION                                           |   |
| 37.    | EXHIBITS                                            |   |
| 38.    | ENTIRE AGREEMENT                                    |   |
| 39.    | EARLY TERMINATION OPTION                            |   |
| 40.    | OPTION TO EXPAND                                    |   |
| 41.    | RIGHT OF FIRST REFUSAL                              |   |
| 42.    | OPTION  TO RENEW                                    |   |
| 43.    | SATELLITE  DISH                                     |   |
| 44.    | SIGNS                                               |   |
| 45.    | FINANCIAL STATEMENTS                                |   |
|   | EXHIBIT A-1  LAND                                   |   |
|   | EXHIBIT A-1  BUILDING                               |   |
|   | EXHIBIT A-2  PREMISES                               |   |
|   | EXHIBIT A-3  PARK                                   |   |
|   | EXHIBIT A-4  EXPANDED PREMISES                      |   |
|   | EXHIBIT A-5  LESSEE VISITOR PARKING                 |   |
|   | EXHIBIT  B-WORK LETTER                              |   |
|   | EXHIBIT C -  COMMENCEMENT AGREEMENT                 |   |
|   | EXHIBIT D -  RULES AND REGULATIONS                  |   |
|   | EXHIBIT E -  SNDA                                   |   |
|   | EXHIBIT F -  AMORTIZATION CALCULATION               |   |
|   | EXHIBIT G -  SIGNAGE                                |   |
|        |                                                     |        |  |

 

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LEASE

 

**1.****                                      PARTIES**

 

THIS LEASE, made as of this 22 day of Aug,2002, by and between CRANBERRY 200 VENTURE, L.P., a Pennsylvania LimitedPartnership, having its principal office at Suite 1410, USX Tower, Pittsburgh,PA 15219, (hereinafter called “Lessor”), and NOMOS CORPORATION, a Delawarecorporation whose principal office is 2591 Wexford Bayne Road, Sewickley,Pennsylvania (hereinafter called “Lessee”.)

 

**2.****                                      PREMISES**

 

Lessor hereby leases to Lessee the premisescontaining 33,214 square feet designated as Suite No. 100 (“Premises”) in theBuilding known as 200 Cranberry Business Park (the “Building”), situate on thetract of land described on Exhibit A-1, attached hereto and made a parthereof (the “Land”) which Premises have an address of 200 West Kennsiger Drive,which Premises, Building and Land are part of and located within the CranberryBusiness Park (the “Park”) more particularly described on Exhibit A-3hereto located in Cranberry, Butler County, Pennsylvania 16066.

 

Lessee shall be entitled, at no cost toLessee, to parking spaces in the Park in the amount and location as shall be designatedby Lessor from time-to-time, except, however, that Lessor agrees that the four(4) parking spaces indicated on Exhibit A-5 shall be dedicated spacesfor Lessee’s visitor parking. Lessor further reserves the right to require theLessee’s cooperation in enforcing reasonable rules and regulations as may beadopted by the Lessor from time-to-time for the benefit of all Tenants of thePark. Lessee shall be provided with parking at a ratio of 4.3 spaces per 1,000square feet throughout the Term of the Lease and any renewals thereof.

 

The Premises are shown on Exhibit A-2attached hereto and made a part hereof.

 

**3.****                                      TERM**

 

(a)                                  Theterm of this Lease is for ten (10) years, two (2) months, which shall commencesupon the Term Commencement Date (as hereinafter defined).

 

(b)                                 Unlessotherwise provided for hereinafter, Lessee’s rental obligation shall begin uponthe latter to occur of, (i) the date when the Premises are Ready for Occupancy(as hereinafter defined) and Lessee’s exhaustion of its 20 day installation periodpursuant to Paragraph 8 of this Lease (subject to adjustment for the delay, ifany, described in Paragraph 4 of Exhibit B hereof) or (ii) for January 2,2003 (the “Lease Commencement Date”). The Premises shall be deemed Ready forOccupancy when Lessor has substantially completed the work described in andcontemplated by the Work Letter Agreement attached hereto as Exhibit B,as determined by Lessor’s Base Building Architect. The terms “substantiallycompleted” and “substantial completion” as used in this Lease shall be The term“substantially completed” and “substantial completion” as used in this Leaseshall be construed to mean that all work specified in Exhibit B hereof,and all drawings, plans and specifications prepared and approved in accordancewith Exhibit B have been substantially completed in accordancetherewith, except for minor items typically known as “punch-list items”, whichitems Lessor can complete within thirty (30) days and without materialinterference with the conduct of the Lessee’s use of the Premises. Lessor shallcomplete all punch-list items with due diligence, and will use commerciallyreasonable best efforts to complete all punch-list items not later than thirty(30) days after the Lease Commencement Date.

 

(c)                                  Effectiveas of the Lease Commencement Date, the parties hereto shall be subject to allterms and provisions of the within Lease.

 

(d)                                 TheTerm Commencement Date shall occur on the Lease Commencement Date, if thelatter falls on the first day of a month, but if not, then the TermCommencement Date shall be the first day of the month following the LeaseCommencement Date. Once the Term has commenced, the parties shall enter into aCommencement Agreement in form attached hereto as Exhibit C.

 

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**4.****                                      RENT; SECURITY DEPOSIT**

 

(a)                                  Lesseecovenants and agrees to pay to Lessor or to such other persons or entities onbehalf of Lessor at its office set forth in Paragraph 33 below or at such otheraddress as Lessor shall provide Lessee by notice, as yearly and monthly baserent (“Base Rent”), during such periods (subject to adjustment for delay, ifany, as described in Paragraph 4 of Exhibit B) and in such amounts ashereinafter provided:

 
| **Period**                                                                                                      | ** ** | **Annual Base Rent Per Square  Foot** | ** ** | **Monthly Base Rent** | ** ** |
|-----------------------------------------------------------------------------------------------------------------|------------|---------------------------------------|------------|-----------------------|------------|
| Lease  Commencement Date  (as same may be adjusted) - Month (2) (sixty days following Lease  Commencement Date) |       | $0.00 per  square foot                |       | $                     | 0          |   |
| Month (3) –  (32)                                                                                          |       | $13.35 per  square foot               |       | $                     | 36,950.57  |   |
| Month (33) –  (62)                                                                                         |       | $14.00 per  square foot               |       | $                     | 38,749.67  |   |
| Month (63) –  (122)                                                                                        |       | $15.00 per square  foot               |       | $                     | 41,517.50  |   |

 

(b)                                 Allrent payments shall be made by Lessee to Lessor on or before the first day ofthe month and without offset or demand, except as provided for in thislease.  In the event the RentCommencement Date is a day other than the first, Lessee shall pay a pro rataportion of the monthly installment of rent, such pro rata portion to be basedon the number of days remaining in such partial calendar month beginning withthe Rent Commencement Date.

 

(c)                                  Lesseehas deposited or will deposit with Lessor the sum of thirty-six thousand ninehundred fifty and 57/100 dollars ($36,950.57) to be held by Lessor ascollateral security for the payment of any rentals and other sums of moneypayable by Lessee under this Lease, and for the faithful performance of allother covenants and agreements of Lessee hereunder (“Security Deposit”); theamount of said deposit, without interest, to be repaid to Lessee after thetermination of this Lease and any renewal thereof, provided Lessee shall havemade all such payments and performed all such covenants and agreements.  Upon any default by Lessee hereunder, all orpart of said deposit may, at Lessor’s sole option, be applied on account ofsuch default, and thereafter Lessee shall promptly restore the resultingdeficiency in said deposit to be held in escrow or in trust and said depositshall be deemed to be the property of Lessor. Nothing contained herein shall be construed as limiting Lessee’sobligations under the Lease to the Security Deposit such amount representing asecurity only and not in the nature of liquidated damages.  Lessee acknowledges that Lessor shall not berequired to segregate Lessee’s Security Deposit from Lessor’s other funds norshall Lessor be required to earn or pay interest on such Security Deposit.  Notwithstanding anything contained in thisParagraph 4(c) to the contrary, Lessee’s Security Deposit shall be returned toLessee upon one of the following occurrences: 1) Lessee achieves investmentgrade credit rating as defined by a minimum rating of BBB from Standard &Poors or other rating agencies considered reliable or, 2) Lessee completes aninitial public offering of not less than $20 million in funds available toNomos.

 

Lessee hereby covenants and agrees to pay therent hereby reserved as and when due, and also all sums of money, charges orother amounts required to be paid by Lessee to Lessor or to another personunder this Lease all of which shall be “rent” in addition to the rent (“AdditionalRent”) provided for herein.  Nonpaymentof Additional Rent when due shall continue a default under this Lease to thesame extent, and shall entitle Lessor to the same remedies, as non-payment ofBase Rent.

 

**5.****                                      LATE PAYMENT**

 

In the event that any payment required byLessee under the provisions hereof shall not be paid when due, Lessor mayperform for the account of Lessee any such default of Lessee and immediatelyrecover as additional rent any expenditures made in the amount of anyobligations incurred in connection therewith, plus that per annum rate ofinterest which shall be two percent greater than the prime rate of thePittsburgh National Corp. (“PNC”) or any successor rate thereto (which shall bethe interest rate amounted by PNC from time to time as its “Prime Rate”) fromthe date of any such expenditure.

 

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**6.****                                      REAL ESTATE TAX AND OPERATING EXPENSEPASS-THROUGH**

 

(a)                                  Commencingon the earlier of the date on which Lessee takes possession of the Premises orthe Lease Commencement Date (irrespective of whether Base Rent shall be payableas of such date), Lessee shall pay to Lessor, as Additional Rent, Lessee’sproportionate share (as hereinafter defined) of (i) real estate taxes and (ii)operating expenses for any calendar year (or portion thereof) during the termof this Lease or any renewal or extension thereof (the “Tax Expense andOperating Expense Payment”).  The Tax andOperating Expense Payment shall be made as provided in this Paragraph 6.  Notwithstanding anything contained in thisparagraph 6(a) to the contrary, Lessee’s Additional Rent payments shall notcommence until that date which is sixty (60) days subsequent to the LeaseCommencement Date (subject to adjustment for delays, if any, described inParagraph 4 to Exhibit B hereto.)

 

(b)                                 Lesseeagrees to pay monthly, as additional rent, one-twelfth (1/12) of Lessee’s Taxand Operating Expense Payment for the then current calendar year.  Lessor will give Lessee written notice fromtime to time of such estimated amounts, in no event more than two times percalendar year, and Lessee shall pay such amounts monthly to Lessor in the samemanner and at the same time as Rent under Paragraph 4.  Within one hundred twenty (120) daysfollowing the end of each calendar year, Lessor will submit to Lessee astatement showing in reasonable detail the actual real estate taxes andoperating expenses for the preceding calendar year along with a reconciliationof estimated payments made by Lessee as compared to Lessee’s actual Tax andOperating Expense Payment for such calendar year (each a “Tax and OperatingExpense Statement”). However, the failure or delay by Lessor to provide Lesseewith a Tax and Operating Expense Statement shall not constitute a waiver byLessor of Lessee’s obligation to pay its Tax and Operating Expense Payment orof Lessor’s right to send such a statement or a wavier of its right toreconcile Lessee’s Tax and Operating Expense Payment.  Within twenty (20) days after receipt of aTax and Operating Expense Statement, Lessee shall pay Lessor any additionalamounts owed to Lessor as shown on the Tax and Operating ExpenseStatement.  Any monies owed Lessee byLessor shall be applied by Lessor against the next accruing monthlyinstallment(s) due from Lessee under this Paragraph 6, provided, however, thatif such overpayments cannot be fully recovered over the next two (2) monthlyinstallments, Lessor shall refund such overpayment to Lessee or, at Lessee’soption, apply such overpayment as a credit against the next monthlyinstallments of Rent payable under Paragraph 4. Lessee or its representative shall have the right, upon not less thanten (10) business days prior notice rendered no later than one hundred twenty(120) days after delivery of a Tax and Operating Expense Statement, to reviewLessor’s books and records with respect to the Tax and Operating ExpensesStatement during normal business hours, at the location of Lessor’s books andrecords, but no more than twice annually with respect to any given calendaryear.  Lessee shall incur the cost ofsuch review unless Lessee’s review establishes that Lessor has overstated Taxand Operating Expense by more than five (5%) percent, in which case thecommercially reasonable cost of such review shall be promptly paid byLessor.  Unless Lessee shall take writtenexception to any item contained in the Tax and Operating Expense Statementwithin one hundred eighty (180) days after delivery thereof, the Tax andOperating Expense Statement shall be deemed final and accepted by Lessee. IfLessee disputes a Tax and Operating Expense Statement, Lessee shall pay themonies set forth therein and any other monies then owed by Lessee under thisLease as a condition precedent to any further review of the content of the Taxand Operating Expense Statement.  Anypayments due under this Paragraph 6 shall be prorated for any partial calendaryear occurring the term of this Lease. Lessee’s obligation to pay any amounts due under this Paragraph 6 andLessor’s obligation to refund any overpayments made by Lessee under thisParagraph 6 for the final year of the term of this Lease shall survive theexpiration or earlier termination of this Lease.  Notwithstanding anything contained in thisParagraph 6(b) to the contrary, Lessee’s total costs for Tax and Operating Expensepayments for the calendar year 2003 shall not exceed in the aggregateninety-two thousand, four hundred, seventeen and 96/100 Dollars ($92,417.96).

 

Until further written notice from LessorLessee’s monthly installment on account of its Tax and Operating ExpensePayment for the calendar year in which the term of this Lease commences isestimated to be three thousand, two hundred, fifty three and 33/100 Dollars($3,459.79) for taxes and five thousand three hundred forty-one and 92/100Dollars ($5,341.92) for Operating Expenses.

 

Notwithstanding anything contained in thisParagraph 6(b) to the contrary, Lessee shall not pay for increases inControllable Operating Expenses that exceed annually in the aggregate 5% of thecosts for such Controllable Operating Expenses compounded over the Term.  Controllable Operating Expenses shall bedefined to exclude

 

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real estate taxes, insurance, utilities andany other such costs that Lessee would otherwise contract directly to performand excluded from Operating Expenses.

 

(c)                                  “Lessee’sProportionate Share” shall mean the ratio of Lessee’s rentable area (33,214 SF)to the total amount of rentable area available in the Building (53,650 SF),whether occupied or not, and such percentage at the date of execution of thisLease is 61.912 percent (61.91%).

 

(d)                                 “Realestate taxes” shall mean all real estate taxes and assessments and specialassessments imposed upon the Building and/or the Land, as the case may be, byany governmental bodies or authorities. If at any time during the term of this Lease the methods of taxationprevailing as of the date hereof shall be altered so that in lieu of, or as anaddition to or as a substitute for the whole or any part of the taxes, assessments,levies, impositions or charges now levied, assessed or imposed on real estateand the improvements thereof there shall be levied, assessed and imposed (i) atax, assessment, levy, imposition or charge received therefrom or (ii) a tax,assessment, levy, imposition or charge measured by or based in whole or in partupon the Premises and imposed upon Lessor, or (iii) a license fee measured bythe rent payable by Lessee or Lessor (iv) any other such additional such taxes,assessments, levies, impositions or charges or the part thereof so measured orbased shall be deemed to be included within the term “real estate taxes” forthe purpose hereof.

 

(e)                                  “Operatingexpenses” shall mean any and all costs and expenses paid or incurred by or onbehalf of Lessor in connection with its ownership, servicing, repair,maintenance and operation of the Land and Building, and in those instanceswhere all Buildings are benefited, the Park, plus those additional costs whichLessor reasonably determines it would have so incurred during such year had theBuilding been 95% occupied, excluding real estate taxes, interest oramortization payments on any mortgage, legal expenses in enforcing the terms ofany lease other than this Lease, expenses for repair or other work occasioned byfire or other casualty which is covered under Lessor’s fire policy withextended coverage, expenses incurred in the leasing or procuring of newtenants, including lease commissions, advertising expenses and expenses forrenting space for new tenant(s); but including, without limitation, allinsurance maintained on or in connection with the Land, Building, and Park andall of the agents and employees described in this subparagraph which, in Lessor’sjudgment, shall be necessary or appropriate or which the holder of any mortgageaffecting the Building, Land or Park might require to be carried under theterms of such mortgage, all labor costs, management fees in an amount not toexceed four (4%) percent of gross rent, service contracts and supplies used inconnection with the cleaning, management, repair, operating, labor andmaintenance of the Land and Building, all repairs, replacements and decoratingrequired to be performed by Lessor as provided for in this Lease, all tools,materials, supplies, equipment and common area maintenance, repairs, chargesfor the entire Building (including leasable portions as well as non-leasableportions) for electricity, gas (or other fuel), water (including, withoutlimitation, sewer rentals and any taxes on such utilities), and otherutilities, striping, sealing and repair of parking areas, driveways andsidewalks on the Land, maintenance and replacement of all landscaping on theLand and common area plants and foliage and replacement of all broken plateglass in the Building (to the extent not covered by insurance), license, permitand inspection fees, auditor’s fees for public accounting for the Building andthe preparation of Tax and Operating Expense Statements and supportinginformation, and reasonable legal fees of outside or special counsel retainedby Lessor in connection with proceedings for the reduction of real estatetaxes, labor relations or other matters to the extent that the same shall be ofgeneral benefit to all tenants in the Building or Park.

 

In connection with the computation of suchlabor charges and management fees to be included in Operating Expenses, suchcharges shall include, without limitation, salary, benefits, and other chargesthat may be payable by Lessor for the Building employees, other employees ofLessor, employees of Lessor’s agents, and agents of Lessor performing servicesrendered in connection with the management, operation, repair and maintenanceof the Land, Building and Park and such other expenses as Lessor may deemreasonably necessary and proper in connection with the operation andmaintenance of a first-class flex building and the parking and other commonareas.  If such personnel, equipment orsupplies are also involved or utilized in connection with another building orproject, such expenses shall be included in operating expenses only to theextent, as determined by Lessor, that such personnel, equipment and suppliesare involved or utilized in connection with the cleaning, management,operation, repair and maintenance of the Land, Building and Park.  The cost of any capital improvements made forthe purpose of reducing operating expenses, other expenses or which may berequired by governmental authority under any governmental law or regulationthat was not applicable to the Building at the time it was constructed, shallbe amortized over such reasonable period as Lessor shall determine, togetherwith interest on the unamortized balance at the rate as may have been paid byLessor on funds borrowed for the

 

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purpose of constructing such capitalimprovements, shall be included in operating expenses.  The term “common area(s)” as used in theLease shall mean all areas and improvements located on the Land and Park asprovided from time to time by Lessor for the general use, in common, oftenants, their officers, agents, employees and customers, including, but notlimited to, parking areas, elevators, ground floor lobby area, exits,entrances, roadways and stairways.

 

(f)                                    Notwithstandinganything to the contrary in the definition of Operating Expenses and RealEstate Taxes set forth above, Operating Expenses and Real Estate Taxes shallnot include the following, except to the extent specifically permitted by aspecific exception to the following:

 

(i)                                     Costsincurred by Lessor due to the violation by Lessor or any tenant of the termsand conditions of any lease of space in the Building;

 

(ii)                                  Overheadand profit increment paid to Lessor or to subsidiaries or affiliates of Lessorfor goods and/or services in or to the Building to the extent the same exceedsthe costs of such goods and/or services rendered by unaffiliated third partieson a competitive basis;

 

(iii)                               Lessor’sgeneral corporate overhead and general and administrative expenses includingcosts relating to accounting, payroll, legal and computer services which aretotally rendered in locations outside the Building;

 

(iv)                              Anycompensation paid to clerks, attendants or other persons in commercialconcessions operated by Lessor;

 

(v)                                 Advertisingand promotional expenditures, and costs of signs in or on the Buildingidentifying the owner of the Building or other tenants’ signs;

 

(vi)                              Thecost of any electrical power used by any tenant in the building in excess ofthe Building-standard amount, or electric power costs for which any tenantdirectly contracts with the local public service company or of which any tenantis separately metered or submetered and pays Lessor directly; provided,however, that if any tenant in the Building contracts directly for electricpower service or is separately metered or submetered during any portion of therelevant period, the total electric power costs for the Building shall be “grossedup” to reflect what those costs would have been had each tenant in the Buildingused the Building-standard amount of electric power;

 

(vii)                           Servicesand utilities provided, taxes attributable to, and costs incurred in connectionwith the operation of any retail, restaurant, athletic or recreational or childcare operations in the Building, except to the extent the square footage ofsuch operations are included in the rentable square feet of the Building and donot exceed the services, utility and tax costs which would have been incurredhad such space been used for general office purposes;

 

(viii)                        Costsincurred in connection with upgrading the Building to comply with disability,life, fire and safety codes, ordinances, statutes, or other laws in effectprior to the Commencement Date, including, without limitation, the ADA, includingpenalties or damages incurred due to such non-compliance;

 

(ix)                                Taxpenalties incurred as a result of Lessor’s negligence, inability orunwillingness to make payments and/or to file any tax or informational returnswhen due;

 

(x)                                   Notwithstandingany contrary provision of the Lease, including, without limitation, anyprovision relating to capital expenditures, any and all costs rising from thepresence of hazardous materials or substances (as defined by applicableEnvironmental Laws in effect on the date the Lease is executed) in or about thePremises, the Building or the Property including, without limitation, anyhazardous substances in the ground water or soil, not placed in the Premises,the Building or the Property or at the direction or on account of thenegligence, in part or in whole, of Lessee;

 

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(xi)           Costsarising from latent defects in the base, shell or core of the Building ofimprovements installed by Lessor or repair thereof;

 

(xii)          Costs(including in connection therewith all attorneys’ fees and costs of settlementjudgements and payments in lieu thereof) arising from claims, disputes orpotential disputes in connection with potential or actual claims litigation orarbitrations pertaining to Lessor and/or the Building and/or the site;

 

(xiii)         Costsassociated with the operation of the business of the partnership or entitywhich constitutes Lessor as the same are distinguished from the costs ofoperation of the Building, including partnership accounting and legal matters,costs of defending any lawsuits with any mortgagee (except as the actions ofLessee may be in issue), costs of selling, syndicating, financing, mortgagingor hypothecating any of Lessor’s interest in the Building, costs of any disputesbetween Lessor and its employees (if any) not engaged in Building operation,disputes of Lessor with Building management, or outside fees paid in connectionwith disputes with other tenants;

 

(xiv)        Costsof any “trap fees” or any sewer or water reconnection fees for the benefit ofany particular tenant in the Building;

 

(xv)         Anyexpenses incurred by Lessor for use of any portions of the Building toaccommodate events including, but not limited to shows, promotions, kiosks,displays, filming, photography, private events or parties, ceremonies, andadvertising beyond the normal expenses otherwise attributable to providingBuilding services, such as lighting and HVAC to such public portions of theBuilding in normal Building operations during standard Building hours ofoperation;

 

(xvi)        Anyentertainment, dining or travel expenses for any purpose;

 

(xvii)       Any“above-standard” cleaning, including, but not limited to constructing cleanupor special cleanings associated with parties/events and specific tenantrequirements in excess of service provided to Lessee, including related trashcollection, removal, handling and dumping;

 

(xviii)      Thecost of any training or incentive programs, other than for tenant life safetyinformation services;

 

(xix)         Thecost of any “tenant relations” parties, events or promotion not consented to byan authorized representative of Lessee in writing;

 

(xx)          “In-house”legal and/or accounting fees;

 

(xxi)         Reservesof any kind, including but not limited to replacement reserves, and reservesfor bad debts or lost rent or any similar charge not involving the payment ofmoney to third parties;

 

(xxii)        Costsincurred by Lessor in connection with rooftop communications equipment ofLessor or other person, tenants, or occupants on the Building if suchcommunications equipment is not generally available to all tenants or occupantsof the Building; and

 

(xxiii)       Anyother expenses which, in accordance with generally accepted accountingprinciples, consistently applied, would not normally be treated as OperatingExpenses by comparable Lessors of Comparable Buildings.

 

(g)                                 Lessorfurther agrees that since one of the purposes of Operating Expenses and thegross up provision is to allow Lessor to require Lessee to pay for the costsattributable to its Premises, Lessor agrees that;

 

(i)                                     Lessorwill not collect or be entitled to collect Operating Expenses from all of itstenants in an amount which is in excess of one hundred percent (100%) of theOperating Expenses actually paid by Lessor in connection with the operation ofthe Building, and

 

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(ii)                                  Lessorshall make no profit from Lessor’s collections of Operating Expenses, exceptfor the management fee provided for in Section 6(e) hereof.

 

**7.****                                      USE OF PREMISES**

 

Lessee shall use and occupy the Premisessolely for purposes of a general office and light assembly/manufacturing andfor no other purpose without the prior written consent of Lessor. Lessee shallobserve and comply with the Rules and Regulations attached hereto as ExhibitD and made part hereof, as such rules and regulations may be amended fromtime-to-time by Lessor, in the exercise of reasonable judgment, by priorwritten notice from Lessor to Lessee. All such rules and regulations shallapply to Lessee and its employees, agents, licensees, invites, sublessees andcontractors and shall be applied by Lessor in a reasonable andnon-discriminatory manner. In no event shall Lessor be required to enforceRules and Regulations on behalf of Lessee or liability to Lessee for failure toenforce same as against any other tenant. Lessee shall not use or occupy orsuffer or permit the Premises or any part thereof to be used or occupied forany purpose or in any manner contrary to law, any insurance policy covering thePremises or the rules, regulations or requirements of any governmentalauthority having jurisdiction over the Premises. Lessee agrees to use andoccupy the Premises in a careful, safe and proper manner and will not permit orcommit waste therein.

 

**8.****                                      CONSTRUCTION OF PREMISES**

 

Lessor shall, without cost to Lessee, do thatportion of the construction and other items of work in the Premises inaccordance with the Work Letter Agreement attached hereto to and designated “Lessor’sWork” in Exhibit C attached hereto. Lessee shall be permitted access tothe Premises for furniture set-up and move-in for a period of twenty (20) daysafter substantial completion and prior to rent commencement. Provided Lesseehas not caused such delay, Lessee’s obligation to pay rent shall commencetwenty (20) days after all of its space has been substantially completedpursuant to its final plans and specifications. “Substantially completed” shallmean The terms “substantially completed” and “substantial completion” as usedin this Lease shall be The term “substantially completed” and “substantialcompletion” as used in this Lease shall be construed to mean that all workspecified in Exhibit B hereof, and all drawings, plans andspecifications prepared and approved in accordance with Exhibit B havebeen substantially completed in accordance therewith, except for minor itemstypically known as “punch-list items”, which items Lessor can complete withinthirty (30) days and without material interference with the conduct of theLessee’s use of the Premises. Lessor shall complete all punch-list items withdue diligence, and will use commercially reasonable best efforts to completeall punch-list items not later than thirty (30) days after the LeaseCommencement Date.

 

**9.****                                      ALTERATIONS**

 

Except for such construction and other itemsof Work which Lessee is obligated to perform pursuant to Paragraph 8 hereof,Lessee shall make no alterations, additions or improvements to the Premiseswithout the prior written consent of Lessor, which consent shall not beunreasonably withheld or delayed. Upon prior written notice to Lessor, Lesseemay, without consent, retain its own contractor to make alterations which arecosmetic in nature, not visible from the exterior, do not impact the buildingstructure, total less than Twenty-Five Thousand ($25,000.00) Dollars and do notimpact the demountable wall system (which shall always require Lessor’sconsent); Lessee’s retention of a contractor shall be subject to the Lessor’srequirements for construction of alterations as may be in place fromtime-to-time including but not limited to utilization of union contractors.Lessor will not charge overhead costs for reviewing and approving suchconstruction for work which it will not perform, unless pursuant to Lessee’swritten request.

 

Unless otherwise agreed in writing at thetime of Lessor’s approval, all such alterations, additions or improvements,along with the construction and other items of work done pursuant to Paragraph8 hereof, shall become a part of the Premises when made and shall remain uponand be surrendered with the Premises at the end of the Term, provided, however,if prior to the termination of this Lease by lapse of time or otherwise, orwithin fifteen days thereafter Lessor so directs by written notice to Lessee.Lessee shall promptly remove the alterations, additions, improvements orinstallations which were placed in the Premises by Lessee and which aredesignated in said notice. Lessee shall

 

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Promptly repair any damage occasioned by suchremoval and in default thereof Lessor may effect said removals and repairs atLessee’s sole expense.

 

**10.****                               MECHANICS’ LIENS**

 

Prior to the performance by Lessee of anyconstruction or other work on or about the Premises for which a lien could befiled against the Premises, the Land, the Building, or the Park, Lessee shallenter into a written “no lien” agreement with the contractor who is to performsuch work, and such written agreement shall be filed and recorded, inaccordance with the Mechanics’ Lien Law of Pennsylvania, prior to thecommencement of such work. Notwithstanding the foregoing, if any mechanics’ orother lien shall be filed against the Premises or the Building purporting to befor labor or material furnished or to be furnished at the request of Lessee,then Lessee shall, at its expense, cause such lien to be discharged of recordby payment, bond or otherwise, within ten days after the filing thereof. IfLessee shall fail to cause such lien to be discharged of record within suchten-day period. Lessor may cause such lien to be discharged by payment, bond orotherwise, without investigation as to the validity thereof or as to anyoffsets or defenses thereto, and Lessee shall, upon demand, reimburse Lessor asAdditional Rent for all amounts paid and costs incurred by Lessor including,without limitation, attorneys’ fees, in having such lien discharged of record.

 

**11.****                               CONDITION OF PREMISES; BUILDINGSERVICES**

 

(a)                                  Lessorhas completed and delivered to Lessee Building shall in accordanceArchitectural and Structural Drawings dated 8/20/01 as prepared by WTWArchitects, Inc, as further detailed on the attached Exhibit A1 - Building.

 

(b)                                 Lesseeacknowledges and agrees that, except as expressly set forth in this Lease,there have been no representations or warranties made by or on behalf of Lessorwith respect to the Premises, the Building or the Land or with respect to thesuitability of any thereof for the conduct of Lessee’s business. The taking ofpossession of the Premises by Lessee shall conclusively establish that thePremises, the Building and the Land were at such time in satisfactorycondition, order and repair, except for punch list items, warranty items andlatent defects.

 

(c)                                  Lessorrepresents that, at the time of execution of this Lease, the Building asdescribed in Paragraph 11(a) of this Lease, is in compliance with theapplicable requirements of the Americans with Disabilities Act them in effectand all other applicable laws, rules, regulations and/or ordinances governingthe Building.

 

**12.****                               ASSIGNMENT AND SUBLETTING**

 

(a)                                  Lesseeshall not, without the prior written consent of Lessor, assign or hypothecatethis Lease or any interest herein or sublet the Premises or any part thereof.Any of the foregoing without such consent shall be void and shall, at theoption of Lessor, terminate this Lease. This Lease shall not, nor shall anyinterest herein, be assignable as to the interest of Lessee by operation of lawwithout the written consent of Lessor, which consent shall not be unreasonablywithheld or delayed beyond thirty (30) days after receipt of Lessee’s request.Notwithstanding the foregoing, a corporate Lessee may, without consent ofLessor, assign this Lease to its parent or subsidiary in connection with aconsolidation or merger of Lessee, or to any entity which acquires all orsubstantially all of the assets or issued on outstanding shares of capitalstock of Lessee, provided the same assignee assumes, in full, the obligationsof Lessee under this Lease, and such assignment shall not relieve Lessee of itsobligation under this Lease; and provided further that such successor shallhave a net worth, as determined in accordance with generally acceptedprincipals of accounting, at least equal to the net worth, similarlydetermined, of Lessee immediately prior to such consolidation or merger.Notwithstanding anything herein to the contrary, the provisions of (a) hereofshall be inapplicable in the event the shares of Lessee are publicly traded ona nationally recognized stock exchange.

 

(b)                                 Ifat any time or from time to time during the term of this Lease, Lessee desiresto sublet all or any part of the Premises, or to assign this Lease and Lesseeis not in default hereunder beyond applicable cure periods, Lessee shallprovided written notice to Lessor of such intent Lessor shall have the option,exercisable by notice given to

 

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Lessee within twenty days after receipt ofLessee’s notice, of terminating the Lease in full or with respect to theportion thereof, which Lessee desires to sublet or to assign. Lessor’s right torecapture the sublet or assigned Premises shall not apply if such sublease orassignment is for a term at least one year less than the current term orrenewal thereof. If Lessor does not exercise such option, Lessee shall be freeto sublet or assign such space to the third party designated in such noticesubject to the following conditions:

 

(1)                                  Writtenconsent of Lessor;

 

(2)                                  Lessormay exercise its option set forth above any time prior to the execution of asublease or assignment agreement to which Lessor has given its consent inwriting;

 

(3)                                  Nosublease or assignment shall be valid and no sublessee or assignee shall takepossession of the Premises or any portion thereof until an executed counterpartof such document has been delivered to Lessor;

 

(4)                                  Nosublessee or assignee shall have a right further to sublet, and

 

(5)                                  Anysums or other economic consideration, whether direct or indirect, received byLessee as a result of such subletting or assignment (except rental or otherpayments received which are attributable to the amortization of the cost ofleasehold improvements, other than building standard tenant improvements, madeto the sublet portion of the Premises by Lessee for subtenant), whetherdenominated rentals under the sublease or assignment or otherwise, whichexceed, in the aggregate, the total sums which Lessee is obligated to payLessor under this Lease (prorated to reflect obligations allocable to thatportion of the Premises subject to such sublease or assignment and reduced bythose reasonable fees and expenses incurred by Lessee) shall be equally splitbetween the Lessee and Lessor and payable to Lessor as Additional Rent under theterms of this Lease without affecting or reducing any other obligation ofLessee hereunder.

 

(6)                                  Inno event shall the Rent be based in whole or in part upon the net operatingincome of such Sublessee.

 

(c)                                  Unlessagreed in writing to the contrary, no subletting or assignment shall releaseLessee of Lessee’s obligation or alter the primary liability of Lessee to paythe Rent and to perform all other obligations to be performed by Lesseehereunder. The acceptance of Rent by Lessor from any other person shall not bedeemed to be a waiver by Lessor of any provision hereof. Consent to oneassignment or subletting shall not be deemed consent to any subsequentassignment or subletting. In the event of default by any assignee of Lessee orany successor of Lessee in the performance of any of the terms hereof, Lessormay proceed directly against Lessee without necessity of exhausting remediesagainst such assignee or successor. Lessor may consent to subsequent assignmentor subletting of this Lease or amendments or modifications to this Lease withassignees of Lessee, without notifying Lessee, or any successor of Lessee, andwithout obtaining its or their consent thereto and such action shall notrelieve Lessee of liability under this Lease.

 

(d)                                 Lessorshall have the right to transfer and assign, in whole or in part, all of itsrights and obligations hereunder and in the Building; and in such event andupon such transfer, Lessee shall look to the purchaser, assignee or transfereeof Lessor’s interest in this Lease for the performance of Lessor’s obligationshereunder, and Lessor shall from and after such conveyance, assignment ortransfer be relieved and discharged from any and all liabilities andobligations under this Lease. Lessee agrees to attorn to any such purchaser,assignee or transferee.

 

**13.****                               ACCESS TO PREMISES**

 

Lessor, its employees and agents, shall havethe right to enter the Premises at all reasonable times and upon forty-eight(48) hours advance written notice given (except in case of emergency) for thepurpose of examining or inspecting the same, showing the same to mortgages orto prospective purchasers, mortgagees or tenants of the Building, making suchreplacements, alterations, repairs, improvements or additions to the Premisesor to the Building as Lessor may deem necessary or desirable, and providingthose Building Services to be provided by Lessor hereunder. If representativesof Lessee shall not be present to open and permit entry into the Premises atany time

 

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when such entry by Lessor is necessary topermitted hereunder, Lessor may enter by means of a master key (or forcibly inthe event of an emergency) without liability to Lessee and without such entryconstituting an eviction of Lessee or termination of this Lease.

 

**14.****                               REPAIRS**

 

(a)                                  Lessorshall make all repairs necessary to maintain the Building structure, plumbing,heating, ventilation, air conditioning and electrical systems, windows, floors(excluding carpeting), and all other items which constitute a part of the Land,Building and Park and which are installed or furnished by Lessor; provided,however, that Lessor (to the extent no warranty is operative) shall bereimbursed as expressly provided in Paragraph 6. In no event shall Lessor be obligatedfor any of such repairs until the expiration of a reasonable period of timeafter written notice from Lessee that such repair is needed. In no event shallLessor be obligated under this paragraph to incur the expense for the repair ofany damage caused by any act, omission or negligence of Lessee or itsemployees, agents, invitees, licensees, sublessees, or contractors. If (i)Lessor fails or neglects to commence such repair within five (5) days afterreceipt of Lessee’s written notice stating the repairs required to be made; or(ii) Lessor fails to complete such repairs within thirty (30) days of suchnotice; or (iii) in the event of an emergency, then Lessee may make suchrepairs as it deems necessary for the account of Lessor. Following Lessee’s completionof such repair work, Lessor shall promptly reimburse Lessee for expensesincurred upon its receipt of a paid invoice. Failure of Lessor to reimburseLessee within thirty (30) days of demand shall entitle Lessee to deduct theamount of such invoice for expenses from Lessee’s next installment(s) of BaseRent.

 

(b)                                 Exceptas Lessor is obligated for repairs as provided hereinabove, Lessee shall make,at its sole cost and expense, all repairs necessary to maintain the Premisesand shall keep the Premises and the fixtures therein in neat and orderlycondition and in good order and repair. If Lessee refuses or neglects to makesuch repairs, or fails to diligently prosecute the same to completion, afterwritten notice from Lessor of the need therefor, Lessor may make such repairsat the expense of Lessee and such expense shall be collectible as AdditionalRent.

 

Except as otherwise specifically set forthherein, Lessor shall not be liable by reason of any injury to or interferencewith Lessee’s business or property arising from the making of any repairs,alterations, additions or improvements in or to the Premises or the Building orto any appurtenances, fixtures or equipment therein.

 

**15.****                               SURRENDER OF PREMISES**

 

At the end of the term of this Lease, Lessee shallsurrender the Premises to Lessor, together with all alterations, additions andimprovements thereto, including but not limited Lessor installed demountablepartitions, doors, glass flooring, in broom clean condition and in good orderand repair except for ordinary wear and tear and damage for which Lessee is notobligated to make repairs under this Lease. Subject to provisions of Paragraph9 hereof and if Lessee is not then in default under the terms hereof Lesseeshall have the right at the end of the term of this Lease to remove anyequipment, furniture, trade fixtures or other personal property placed in thePremises by Lessee, provided that Lessee promptly repairs any damage to thePremises caused by such removal. For the purpose of this Lease, Lessee shallremove all alterations, additions, improvements or installations as to whichLessor shall have made the election provided for in Paragraph 9 hereof, exceptas otherwise agreed in writing. Lessee shall repair all damage to the Premisescaused by such removal and restore the Premises to the condition in which theywere prior to the installation of the items so removed, ordinary wear and tearexcepted. Lessee shall surrender the Premises to Lessor at the end of the termof this Lease, without notice of any kind, and Lessee waives all right to anysuch notice as may be provided under any laws now or hereafter in effect inPennsylvania, including the Landlord and Tenant Act of 1951, as amended.

 

**16.****                               HOLDING OVER**

 

Lessee shall indemnify, defend and hold Lessorharmless from and against any and all loss or liability resulting from thefailure of Lessee to surrender possession of the Premises in accordance withthe terms and conditions of this Lease.

 

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**17.****                              ****INDEMNIFICATIONAND LIABILITY**

 

(a)                                  Lessee shall indemnify, hold harmless anddefend Lessor from and against any and all costs, expenses (including withoutlimitation, reasonable attorney’s and paralegal’s fees), liabilities, losses,damages, suits, actions, fines, penalties, claims or demands of any kind andasserted by or on behalf of any person or governmental authority.  arising out of or in any way connected with,and Lessor shall not be liable to Lessee on account of, (i) any failure byLessee to perform any of the agreements, terms, covenants or conditions of thisLease required to be performed by Lessee, (ii) any failure by Lessee to complywith any statutes, ordinances, regulations or orders of any governmentalauthority, or (iii) any accident, death or personal injury, or damage to orloss or theft of property, which shall occur in or about the Premises except asthe same may be caused by the gross negligence of Lessor, its employees oragents.

 

(b)                                 Notwithstanding anything to the contraryprovided in this Lease, except for damage or injury caused by the grossnegligence of Lessor, its agents of employees, lessor shall not be liable forany personal injuries occurring in the premises or for damage or injury topersonal property of Lessee, or of any other person, done or occasioned by orfrom electric wiring, plumbing, dampness, water, gas steam or other pipes, orsewage, or the failure of the air conditioning or refrigeration system, or thebreaking of any electric wire, the bursting, leaking or running water from anytank, washstand, water closet or waste pipe, sprinkler system, radiator or anyother pipe in, above, upon or about the Building or premises, or which may atany time hereafter by placed herein; or for any such personal injury orproperty damage occasioned by fire, explosion, falling plaster, electricity,smoke or water, snow or ice being upon or coming through from the street, roof,subsurface, skylight, trapdoor, windows or form any other cause whatsoever, orfor any damages or injuries to persons or property arising from acts or neglectof any tenant or occupant of the Building, or of any owners or occupants ofadjacent or contiguous property; or for the loss or theft of any property ofLessee however occurring.

 

(c)                                  Subparagraph 17(a) above shall not beconstrued to impose upon Lessor any liability as to which rights of subrogationhave been waived under Subparagraph 17(d) of this Lease.

 

(d)                                 Notwithstanding any other provision to thecontrary set forth in this Lease, if the Premises shall lack any “essentialservice” (as hereinafter defined) which Lessor in required to providehereunder, thereby rendering the premises or a portion thereof “untenantable”(as hereinafter defined), for a period of ten (10) consecutive Business Day’safter Lessor’s receipt of written notice from Lessee of such condition and suchinterruption occurs or continues as a result of the negligent acts or willfulmisconduct of the Lessor, its agents, employees or contractors, then providedthat (i) such untenantability and Lessor’s inability to cure such conditiondoes not arise out of or result from default or neglect of Lessee or Lessee’sagents, employees or contractors, or any of the other causes identified in subsection (a)above, and (ii) Lessee actually vacates all or substantially all of thePremises, then the Base Rent and other Rent amounts payable hereunder shallthereafter be equitably abated on a day-for-day basis until the date suchessential service is substantially restored. The provisions of this subsection (b) shall not apply in the eventof an Unavoidable Delay, or a fire, other casualty or eminent domain event, orother event governed by the provisions of Article 19 and/or 21 hereof. Forpurposes of this Lease, the terms “untenantable” and “untenantability” shallmean that the Premises, or any portion of the Premises, as the case may be, arenot, despite Lessee’s commercially reasonable good faith efforts, usable byLessee in the ordinary course of Lessee’s business.  For purposes hereof, “essential service”shall mean the following services, but only to the extent that Lessor isrequired to provide the same to the Lessee under this Lease: electricity, waterand HVAC service.  The foregoing rentabatement shall be the sole and exclusive remedy of the Lessee on account ofsuch interruption or lack of service and Lessor shall have no further liabilitiesor obligations to Lessee on account thereof.

 

**18.****                              ****INSURANCE**

 

(a)                                  Lessor shall secure and maintain in force inamounts reasonably satisfactory to Lessor comprehensive general liabilityinsurance with respect to all common areas of the Land, Building, and Park,fire and extended coverage, and all risks perils, insurance with respect to theLand and the Building, from with companies acceptable to Lessor.  Lessee shall secure and maintain in force,comprehensive general liability insurance with respect to the premises and fireextended coverage, and all risk perils, insurance with respect to allfurniture, fixtures and equipment and personal property placed by Lessee in thePremises, form and with companies acceptable to Lessor.  Lessor shall have the right to review, fromtime to time, the coverage maintained by Lessee and Lessee shall deposit withLessor certificates of such insurance at or prior to the Commencement date, andthereafter

 

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within ten days prior to the Commencement Date, andthereafter within ten (10) days prior to the expiration of such coverages.Lessee shall indemnify Lessor from and against any and all costs, expenses,liabilities, losses and damages which may arise in connection with claims foraccident, death or personal injury or for damage or injury or loss or theft ofproperty sustained by Lessee and all other persons which arise from or in anymanner grow out of any acts in or about the Premises.

 

(b)                                 During the Lease Term, Lessee shall maintainin full force general liability insurance written on an occurrence basis, atLessee’s sole expense.  The policy(ies)shall be issued by one or more responsible insurance carriers licensed to dobusiness in the Commonwealth of Pennsylvania, insuring against liability forinjury to or death of persons and loss of or damage to property occurring inand on the Premises.  Such liabilityinsurance shall name Lessor as an additional insured.  The coverage limits of the policy shall be acombined single limits for bodily injury and property damage in an amount ofThree Million Dollars ($3,000,000) per occurrence (at least One Million Dollars($1,000,000) of which shall be provided by primary coverage and Two MillionDollars ($2,000,000) of which may be provided by umbrella coverage).  Lessee shall not knowingly conduct anyoperation in the Premises which would cause suspension or cancellation of suchall risk insurance coverage carried by Lessor. If Lessee should change its use of the Premises and thereby causes anincrease in the premium for such all risk insurance policy carried by Lessor,the premium for said policy having been based on such initial use and occupancyof Lessee, the amount of the competitively priced increase in net annualpremium to insure the Premises shall be paid to Lessor by Lessee as AdditionalRent annually upon demand and presentation of written evidence by Lessor.

 

(c)                                  Lessor and Lessee hereby waive on behalf ofthemselves and their respective insurers, any claims that either may haveagainst the other for loss or damage resulting from perils covered by thestandard form of fire and extended coverage insurance, including vandalism andmalicious mischief, to the extent of such policies which shall be in effectfrom time to time in the Commonwealth of Pennsylvania, it being expresslyunderstood that this waiver is intended to extend to all such loss or damagewhether or not the same is caused by the fault or neglect of either Lessor orLessee.  Each party shall secure from itscasualty insurer a waiver of subrogation endorsement to its policy and, uponrequest, deliver a copy of such endorsement to the other party to this Lease.

 

**19.****                              ****FIREOR OTHER CASUALTY**

 

(a)                                  If all or any part of the Premises is damagedor destroyed by fire or other casualty, Lessee shall promptly notify Lessor inwriting.

 

(b)                                 If the Premises should be damaged by fire orother casualty such that rebuilding or repairs cannot be completed within onehundred eighty (180) days from the date of such damage, Lessee may, within thirty(30) days of the determination of the number of days necessary to restore thePremises, terminate this Lease on written notice to Lessor, and rent and alladditional charges shall be abated as of the date of the happening of thedamage.

 

(c)                                  Ifthe Premises should be materially damaged by a fire or other casualty duringthe final eighteen (18) full calendar months of the Lease Term Lessee may exerciseits option, if any, to extend the term within sixty (60) days of the date ofthe casualty, in which case Lessor shall at its sole cost and risk, proceedforth with to rebuild or repair such damage; otherwise, Lessor shall not berequired to rebuild or repair such damage, and this Lease shall at Lessor’selection, acrtminate and Rent and all Additional Rent shall be abated as of thedate of such casualty.

 

(d)                                 If so much of the Premises or Building shallbe damaged so that Lessee is unable to conduct business from the Premises, inLessor’s reasonable judgment, Lessee may discontinue the conduct of businessfrom the Premises and all Base Rent, Additional Rent and all other chargesshall abate and the term shall toll thereafter. The rent abatement and tolling of the term shall end on the earlier tooccur of the date on which the damage shall be repaired or replaced or the dateon which the conduct of business from the Premises shall be resumed.  To the extent that Lessee continues tooperate the business from the Premises, however, during the period from thedate of destruction to the date of completion of the reconstruction, Lessor andLessee shall agree on an equitable adjustment to Base Rent, Additional Rent andother charges.

 

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labor or materials or acts of God,governmental restriction, regulation, or control, enemy or hostile governmentalaction, civil commotion, insurrection, revolution, sabotage, or fire or othercasualty, or other similar condition beyond the reasonable control of the partyclaiming same, including fuel shortages, but specifically excluding financialinability.  If Lessor shall, as theresult of such event, fail punctually to perform any obligation required inParagraphs 8, 12, 15, 18, and 20 hereof, then such obligation shall bepunctually performed as soon as practicable after such event shall abate.  If Lessor shall, as a result of such event,be unable to exercise any right or option within any time limit providedtherefor in this lease, such time limit shall be deemed extended for a periodequal to the duration of such event.

 

**28.****                               SUCCESSORS**

 

The respective rights and obligationsprovided in this Lease shall bind and shall inure to the benefit of the partieshereto, their legal representative, heirs, successors and assigns; provided,however, that no rights shall inure to the benefit of any successor of Lesseeunless Lessor’s written consent for the transfer to such successor has firstbeen obtained as provided in Paragraph 13.

 

**29.****                               GOVERNING LAW**

 

This Lease shall be construed, governed andenforced in accordance with the laws of the Commonwealth of Pennsylvaniawithout regard to its conflicts of law provisions.

 

**30.****                               SEVERABILITY**

 

If any provisions of this Lease shall be heldto be invalid, void or unenforceable, the remaining provisions hereof shall inno way be affected or impaired and such remaining provisions shall remain infull force and effect.

 

**31.****                               RELOCATION OF LESSEE – INTENTIONALLYREMOVED**

 

**32.****                               CAPTIONS**

 

Marginal captions, titles or exhibits andriders and the table of contents to this Lease are for convenience andreference only, and are in no way be construed as defining, limiting ormodifying the scope of intent of the various provisions of this Lease.

 

**33.****                               NOTICES**

 

All notices required or permitted hereundershall be deemed sufficiently given if sent by nationally recognized overnightcourier, addressed to Lessor as follows:

 

To Lessor:

Cranberry 200 Venture, L.P.

C/O Abstract Properties Company

Suite 1410 – USX Tower

Pittsburgh, PA 15219

Attention: Michael Cahn

Telephone: (412) 316-2401

Fax: (412) 918-5721

 

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To Lessee:

Normos Corporation

2591 Wexford Bayne Road

Sewickley, PA

 

Either party may change its address by noticeso given to the other, given in accordance herewith.

 

**34.****                               HAZARDOUS MATERIALS**

 

(a)                                  Lesseecovenants that it will not release or cause to be released or permit therelease of Hazardous Materials (as defined herein) in or on the Premises, theBuilding, the Land or the Park in violation of any Environmental Laws (asdefined herein).

 

(b)                                 Forpurposes hereof, “Hazardous Materials” includes, without limit, any flammableexplosives, radioactive materials, petroleum, natural gas liquids,asbestos-containing materials and PACM, lead paint or lead paint hazards,hazardous materials, hazardous wastes, hazardous or toxic substances, or anypollutant or contaminant defined as such , in or used by any federal, state orlocal law, ordinance, rule, regulation, standard, order or decree which relatesto protection of the public health, welfare and the environment, includingwithout limitation those relating to the storage, handling and use of chemicalsand other hazardous materials, those relating to the generation, processing,treatment, storage, transport, disposal or other management of waste materialof any kind and those relating to the protection of environmentally sensitiveareas (“Environmental Laws”).  The term “release”as used herein means depositing, spilling, leaking, pumping, pouring, emitting,erupting, discharging, injecting, escaping, leaching, dumping or disposing intothe environment.

 

(c)                                  Notwithstandingthis provision, in the event Lessee or Lessor becomes aware that a release orthreat of release of Hazardous Materials on, onto or from the Premises hasoccurred, such party agrees to give timely and appropriate required regulatorynotices, copying the other parry.

 

(d)                                 Lessorcovenants that it will not release Hazardous Materials on the Premises or theLand in violation of any Environmental Laws. Lessor represents and warrants that neither it nor any third party hasreleased Hazardous Materials on the Premises. Lessor further represents, warrants and covenants that the Premises andthe Land are and will remain in compliance with Environmental Laws and do notcontain and have not contained any underground or aboveground storage tanks,any PCB items, PCB-contaminated Electrical Equipment or any asbestos-containingmaterials or presumed asbestos-containing materials (“PACM”).  Without any limitation of any other terms ofthis Lease, Lessor also represents, warrants, and covenants that it will notprovide notice to Lessee of the existence, location, and amount of (i) anyasbestos-containing materials or PACM, or (ii) lead paint or lead painthazards, and will assume full responsibility for management of these materialsin accordance with all applicable laws.

 

**35.****                               BROKERS**

 

Lessee hereby certifies that no real estatebroker has or will represent it in this transaction and that no finder’s feeshave been earned by a third party, except for Grubb & Ellis whose feesshall be paid by Lessor.  Each partyacknowledges that no other broker has been involved in securing or negotiationof the within Lease, except for CB Richard Ellis/Pittsburgh whose fees shall bepaid by Lessor and Lessor and Lessee agree to indemnify, defend and holdharmless the other from any additional claims for Broker’s fees.

 

**36.****                               EXECUTION**

 

This Lease shall become effective when it hasbeen signed by a duly authorized officer of Lessor and a duly authorizedofficer or representative of Lessee and delivered to the other party.  This Lease is being executed in four

 

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counterparts. Each of such fully executedcounterparts shall be deemed original and it shall not be necessary in makingproof of this Lease to produce or account for more than one such counterpart.

 

The Lessee shall, upon the written request ofLessor, execute a memorandum of this Lease in form satisfactory to Lessor inthe exercise of reasonable judgment.

 

**37.****                              ****EXHIBITS**

 

All exhibits referred to herein shall be considereda part hereof for all purposes with the same force and effect as if copied atverbatim herein. The exhibits attached hereto are listed as follows:

 
| Exhibit A-1 |   | Land                      |
|-------------|--------|---------------------------|
| Exhibit A-2 |   | Premises                  |
| Exhibit A-3 |   | Park                      |
| Exhibit A-4 |   | Expanded Premises         |
| Exhibit A-5 |   | Lessee Visitor Parking    |
| Exhibit B - |   | Work Letter               |
| Exhibit C - |   | Commencement Agreement    |
| Exhibit D - |   | Rules and Regulations     |
| Exhibit E - |   | SNDA                      |
| Exhibit F - |   | Amortization Calculations |
| Exhibit G - |   | Signage                   |

 

**38.****                              ****ENTIRE AGREEMENT**

 

This Lease including the Exhibits and any Exhibitshereto, contains all the agreements, conditions, understandings,representations and warranties made between the parties hereto with respect tothe subject matter hereof, and may not be modified orally or in any mannerother than by an agreement in writing signed by both parties hereto or theirrespective successors in interest, except amendments to the Rules andRegulations made in accordance with the provisions of Paragraph 7 above.

 

**39.****                              ****EARLY TERMINATION OPTION**

 

Providing Lessee is not in default of this Leasebeyond applicable cure periods, Lessee shall have the right to terminate thelease effective upon the completion of the eighty-sixth (86th) monthby providing Lessor twelve (12) months prior written notice of the terminationdate (“Termination Date”). On or before the Termination Date and so long asLessee is not in default of the Lease, Lessee shall pay as an early terminationfee an amount equal to the unamortized Lessor Allowance and brokerage fees, asmore particularly set forth on Exhibit F hereof. Such amount shall bedetermined prior to the execution of a lease and incorporated into the lease asa condition of early termination. This Early Termination Option shall notbecome operative until satisfaction of all Lessees’ obligations pursuant tothis paragraph.

 

**40.****                              ****OPTION TO EXPAND**

 

Providing Lessee is not in default ofthis Lease, Lessee shall have an option to expand (“Option”) from its initiallyleased Premises to lease additional premises designated as Suite No. 200 (“ExpandedPremises”) shown on Exhibit A-4 containing approximately 4,000 SF duringthe thirty-six (36) months of its initial Term. Lessee shall provide Lessortwelve (12) months prior written notice exercising the Option. The partiesagree, however, that to the extent Lessee requests Lessor to do so, Lessor willuse commercially reasonable efforts to deliver the Expanded Premises before theexpiration of the twelve (12) month notice period provided herein.

 

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The terms for the Expanded Premises shall be theLessee’s terms and conditions, then in effect for its Premises, increased proportionallyto reflect the additional space. The Lease shall be amended to reflect theincreases in Lessee’s Base Rent and Real Estate and Operating ExpensePass-Through.

 

Lessor shall construct the Expanded Premisesconsistent with Lessee’s construction in the initial Premises as furtherdescribed in Exhibit I to this Lease..

 

Upon the expiration of Lessee’s Option the ExpandedPremises shall revert to a Right of First Refusal as set forth in Paragraph 41herein.

 

**41.****                              ****RIGHTOF FIRST REFUSAL**

 

Providing Lessee is not in default of this Lease,commencing the 13th month of the Term and continuing through theTerm and any renewals thereof, Lessee shall have a Right of First Refusal tolease any space in the Building. Lessee’s Right of First Refusal shall be triggeredby the Lessor’s receipt of a fully executed bona fide Letter of Intent with athird party. Lessee shall have ten (10) business days, after receipt in writingof Letter of Intent, to exercise its Right of First Refusal on the terms andconditions set forth in the Letter of Intent. In the event Lessee fails toexercise Right of First Refusal and Lessor shall not enter into a lease onsubstantially the same terms incorporated in the Right of First Refusal withinone hundred twenty (120) days from the expiration of Lessee’s election nor toexercise, the Lessee’s Right of First Refusal shall reattach to such space.

 

**42.****                              ****OPTIONTO RENEW**

 

Provided Lessee is not in default under this Leasebeyond applicable cure periods or any renewals or extensions thereof, Lesseeshall have two (2) consecutive options to renew its lease for all or part ofthe Premises for additional periods of five (5) years. In no event shall therenewal apply if that portion of the space remaining is less than half of theinitial Premises under the initial Term and/or the remaining premises is notcommercially marketable in Lessor’s reasonable discretion. The terms andconditions for such renewals shall be consistent with the existing leasedocument, with the exception of base rent which shall be at fair market valuefor comparable space in comparable buildings in Cranberry Business Park. Forthe First Renewal Option, Lessor shall provide Lessee with the base rent forthe renewal period on or before December 1, 2011. For the Second RenewalOption and provided Lessee exercised its First Renewal Option herein. Lessorshall provide Lessee with the base rent for the renewal period on or before December 1,2016. Lessee shall give Lessor not less than twelve (12) months prior writtennotice of intent to exercise such renewal options.

 

**43.****                              ****SATELLITEDISH**

 

Lessor hereby licenses to Lessee use of a portion of the roof of the Building toinstall and maintain a satellite dish (“Dish”) for its sole use at no cost.Lessee’s installation and use of the Dish shall be governed pursuant to aseparate license agreement between Lessor and Lessee, with terms and conditionssatisfactory to all parties and their respective counsel. Such agreement shallcontain the conditions for securing Lessor’s approval for installation,operation and maintenance of the Dish, securing any permits as may be requiredby law and indemnifying Lessor.

 

**44.****                              ****SIGNS**

 

Lessor hereby licenses to Lessee the use of a portion of its grounds to install andmaintain a monument sign (“Sign”) for the term of the Lease, and any extensionsthereof at no cost to Lessee. Lessee’s graphics, installation and use of theSign shall be governed pursuant to a separate license agreement between Lessorand Lessee, with terms and conditions satisfactory to all parties and theirrespective counsel. Such agreement shall contain the conditions for securingLessor’s approval for installation and maintenance of the Sign and securing anypermits as may be required by law. The right to install and maintain the Signshall be personal to Lessee. Lessee’s proposed signage which has been reviewedand approved by Lessor is attached hereto as Exhibit G.

 

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**45.****                               FINANCIAL STATEMENTS**

 

Lessee shall deliver to Lessor or Lessor’sexisting or prospective mortgagees within 90 days of the close of each fiscalyear Lessee’s financial statements certified by an officer of Lessee as trueand correct. Lessee represents to Lessor that any and all financial statementsdelivered pursuant hereto shall be complete and correct and fairly representthe financial condition of Lessee as of the dates and for the periods referredto and have been prepared in accordance with Generally Accepted AccountingPrincipals consistently applied throughout the periods involved.

 

[THIS SPACE INTENTIONALLY LEFTBLANK]

 

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IN WITNESS WHEREOF, the parties hereto haveduly executed this Lease and have initialed the Exhibits and any Rider hereto,in four counterparts the day and year first above written.

 
|            | LESSOR: CRANBERRY 200 VENTURE, L.P.    |
|-----------------|----------------------------------------|
|            | by its  General Partner, CBP 200, L.P. |
| ATTEST:         |                                   | By its General Partner, CBP 200, Inc. |
|            |                                   |   |
|            |                                   |   |
| /s/ [ILLEGIBLE] |                                   |   | By: | /s/ Richard  Donley |   |
|            |                                   |   | Richard  Donley |
|            |                                   |   | President |
|            |                                   |   |
|            |                                   |   |
|            |                                   | or |
|            |                                   |   |
| /s/ [ILLEGIBLE] |                                   |   | By: | /s/ Michael  S. Cahn |   |
|            |                                   |   | Michael S.  Cahn |
|            |                                   |   | Secretary/Treasurer |

 

 
| WITNESS/ATTEST   | LESSEE: NOMOS CORPORATION |
|------------------|---------------------------|
|             |                      |
|             |                      |
| /s/ Jill R Welch |                      | By: | /s/ David J Haffner |   |
|             | Title:                    | CFO |   |
|                  |                           |  |  |  |  |

 

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