Exhibit
10.20


 


August 15, 2002


 


LEASE BETWEEN


 


LESSOR:


 


CRANBERRY 200 VENTURE, L.P.


 


AND


 


LESSEE:


 


NOMOS CORPORATION


 


 


DATED: AUGUST 22, 2002


 





















 


TABLE OF
CONTENTS


 


	
  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

  	
   

  
				



 





















 


LEASE


 


1.                                      PARTIES


 


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


 


2.                                      PREMISES


 


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


 


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


 


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


 


3.                                      TERM


 


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


 


(b)                                 Unless
otherwise provided for hereinafter, Lessee’s rental obligation shall begin upon
the 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 period
pursuant to Paragraph 8 of this Lease (subject to adjustment for the delay, if
any, described in Paragraph 4 of Exhibit B hereof) or (ii) for January 2,
2003 (the “Lease Commencement Date”). The Premises shall be deemed Ready for
Occupancy when Lessor has substantially completed the work described in and
contemplated by the Work Letter Agreement attached hereto as Exhibit B,
as determined by Lessor’s Base Building Architect. The terms “substantially
completed” and “substantial completion” as used in this Lease shall be The term
“substantially completed” and “substantial completion” as used in this Lease
shall be construed to mean that all work specified in Exhibit B hereof,
and all drawings, plans and specifications prepared and approved in accordance
with Exhibit B have been substantially completed in accordance
therewith, except for minor items typically known as “punch-list items”, which
items Lessor can complete within thirty (30) days and without material
interference with the conduct of the Lessee’s use of the Premises. Lessor shall
complete all punch-list items with due diligence, and will use commercially
reasonable best efforts to complete all punch-list items not later than thirty
(30) days after the Lease Commencement Date.


 


(c)                                  Effective
as of the Lease Commencement Date, the parties hereto shall be subject to all
terms and provisions of the within Lease.


 


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


 





















 


4.                                      RENT; SECURITY DEPOSIT


 


(a)                                  Lessee
covenants and agrees to pay to Lessor or to such other persons or entities on
behalf of Lessor at its office set forth in Paragraph 33 below or at such other
address as Lessor shall provide Lessee by notice, as yearly and monthly base
rent (“Base Rent”), during such periods (subject to adjustment for delay, if
any, as described in Paragraph 4 of Exhibit B) and in such amounts as
hereinafter 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)                                 All
rent payments shall be made by Lessee to Lessor on or before the first day of
the month and without offset or demand, except as provided for in this
lease.  In the event the Rent
Commencement Date is a day other than the first, Lessee shall pay a pro rata
portion of the monthly installment of rent, such pro rata portion to be based
on the number of days remaining in such partial calendar month beginning with
the Rent Commencement Date.


 


(c)                                  Lessee
has deposited or will deposit with Lessor the sum of thirty-six thousand nine
hundred fifty and 57/100 dollars ($36,950.57) to be held by Lessor as
collateral security for the payment of any rentals and other sums of money
payable by Lessee under this Lease, and for the faithful performance of all
other covenants and agreements of Lessee hereunder (“Security Deposit”); the
amount of said deposit, without interest, to be repaid to Lessee after the
termination of this Lease and any renewal thereof, provided Lessee shall have
made all such payments and performed all such covenants and agreements.  Upon any default by Lessee hereunder, all or
part of said deposit may, at Lessor’s sole option, be applied on account of
such default, and thereafter Lessee shall promptly restore the resulting
deficiency in said deposit to be held in escrow or in trust and said deposit
shall be deemed to be the property of Lessor. 
Nothing contained herein shall be construed as limiting Lessee’s
obligations under the Lease to the Security Deposit such amount representing a
security only and not in the nature of liquidated damages.  Lessee acknowledges that Lessor shall not be
required to segregate Lessee’s Security Deposit from Lessor’s other funds nor
shall Lessor be required to earn or pay interest on such Security Deposit.  Notwithstanding anything contained in this
Paragraph 4(c) to the contrary, Lessee’s Security Deposit shall be returned to
Lessee upon one of the following occurrences: 1) Lessee achieves investment
grade credit rating as defined by a minimum rating of BBB from Standard &
Poors or other rating agencies considered reliable or, 2) Lessee completes an
initial public offering of not less than $20 million in funds available to
Nomos.


 


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


 


5.                                      LATE PAYMENT


 


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


 


2





















 


6.                                      REAL ESTATE TAX AND OPERATING EXPENSE
PASS-THROUGH


 


(a)                                  Commencing
on the earlier of the date on which Lessee takes possession of the Premises or
the Lease Commencement Date (irrespective of whether Base Rent shall be payable
as of such date), Lessee shall pay to Lessor, as Additional Rent, Lessee’s
proportionate share (as hereinafter defined) of (i) real estate taxes and (ii)
operating expenses for any calendar year (or portion thereof) during the term
of this Lease or any renewal or extension thereof (the “Tax Expense and
Operating Expense Payment”).  The Tax and
Operating Expense Payment shall be made as provided in this Paragraph 6.  Notwithstanding anything contained in this
paragraph 6(a) to the contrary, Lessee’s Additional Rent payments shall not
commence until that date which is sixty (60) days subsequent to the Lease
Commencement Date (subject to adjustment for delays, if any, described in
Paragraph 4 to Exhibit B hereto.)


 


(b)                                 Lessee
agrees to pay monthly, as additional rent, one-twelfth (1/12) of Lessee’s Tax
and Operating Expense Payment for the then current calendar year.  Lessor will give Lessee written notice from
time to time of such estimated amounts, in no event more than two times per
calendar year, and Lessee shall pay such amounts monthly to Lessor in the same
manner and at the same time as Rent under Paragraph 4.  Within one hundred twenty (120) days
following the end of each calendar year, Lessor will submit to Lessee a
statement showing in reasonable detail the actual real estate taxes and
operating expenses for the preceding calendar year along with a reconciliation
of estimated payments made by Lessee as compared to Lessee’s actual Tax and
Operating Expense Payment for such calendar year (each a “Tax and Operating
Expense Statement”). However, the failure or delay by Lessor to provide Lessee
with a Tax and Operating Expense Statement shall not constitute a waiver by
Lessor of Lessee’s obligation to pay its Tax and Operating Expense Payment or
of Lessor’s right to send such a statement or a wavier of its right to
reconcile Lessee’s Tax and Operating Expense Payment.  Within twenty (20) days after receipt of a
Tax and Operating Expense Statement, Lessee shall pay Lessor any additional
amounts owed to Lessor as shown on the Tax and Operating Expense
Statement.  Any monies owed Lessee by
Lessor shall be applied by Lessor against the next accruing monthly
installment(s) due from Lessee under this Paragraph 6, provided, however, that
if such overpayments cannot be fully recovered over the next two (2) monthly
installments, Lessor shall refund such overpayment to Lessee or, at Lessee’s
option, apply such overpayment as a credit against the next monthly
installments of Rent payable under Paragraph 4. 
Lessee or its representative shall have the right, upon not less than
ten (10) business days prior notice rendered no later than one hundred twenty
(120) days after delivery of a Tax and Operating Expense Statement, to review
Lessor’s books and records with respect to the Tax and Operating Expenses
Statement during normal business hours, at the location of Lessor’s books and
records, but no more than twice annually with respect to any given calendar
year.  Lessee shall incur the cost of
such review unless Lessee’s review establishes that Lessor has overstated Tax
and Operating Expense by more than five (5%) percent, in which case the
commercially reasonable cost of such review shall be promptly paid by
Lessor.  Unless Lessee shall take written
exception to any item contained in the Tax and Operating Expense Statement
within one hundred eighty (180) days after delivery thereof, the Tax and
Operating Expense Statement shall be deemed final and accepted by Lessee. If
Lessee disputes a Tax and Operating Expense Statement, Lessee shall pay the
monies set forth therein and any other monies then owed by Lessee under this
Lease as a condition precedent to any further review of the content of the Tax
and Operating Expense Statement.  Any
payments due under this Paragraph 6 shall be prorated for any partial calendar
year occurring the term of this Lease. 
Lessee’s obligation to pay any amounts due under this Paragraph 6 and
Lessor’s obligation to refund any overpayments made by Lessee under this
Paragraph 6 for the final year of the term of this Lease shall survive the
expiration or earlier termination of this Lease.  Notwithstanding anything contained in this
Paragraph 6(b) to the contrary, Lessee’s total costs for Tax and Operating Expense
payments for the calendar year 2003 shall not exceed in the aggregate
ninety-two thousand, four hundred, seventeen and 96/100 Dollars ($92,417.96).


 


Until further written notice from Lessor
Lessee’s monthly installment on account of its Tax and Operating Expense
Payment for the calendar year in which the term of this Lease commences is
estimated 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 92/100
Dollars ($5,341.92) for Operating Expenses.


 


Notwithstanding anything contained in this
Paragraph 6(b) to the contrary, Lessee shall not pay for increases in
Controllable Operating Expenses that exceed annually in the aggregate 5% of the
costs for such Controllable Operating Expenses compounded over the Term.  Controllable Operating Expenses shall be
defined to exclude


 


3





















 


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


 


(c)                                  “Lessee’s
Proportionate 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 this
Lease is 61.912 percent (61.91%).


 


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


 


(e)                                  “Operating
expenses” shall mean any and all costs and expenses paid or incurred by or on
behalf of Lessor in connection with its ownership, servicing, repair,
maintenance and operation of the Land and Building, and in those instances
where all Buildings are benefited, the Park, plus those additional costs which
Lessor reasonably determines it would have so incurred during such year had the
Building been 95% occupied, excluding real estate taxes, interest or
amortization payments on any mortgage, legal expenses in enforcing the terms of
any lease other than this Lease, expenses for repair or other work occasioned by
fire or other casualty which is covered under Lessor’s fire policy with
extended coverage, expenses incurred in the leasing or procuring of new
tenants, including lease commissions, advertising expenses and expenses for
renting space for new tenant(s); but including, without limitation, all
insurance maintained on or in connection with the Land, Building, and Park and
all of the agents and employees described in this subparagraph which, in Lessor’s
judgment, shall be necessary or appropriate or which the holder of any mortgage
affecting the Building, Land or Park might require to be carried under the
terms of such mortgage, all labor costs, management fees in an amount not to
exceed four (4%) percent of gross rent, service contracts and supplies used in
connection with the cleaning, management, repair, operating, labor and
maintenance of the Land and Building, all repairs, replacements and decorating
required to be performed by Lessor as provided for in this Lease, all tools,
materials, supplies, equipment and common area maintenance, repairs, charges
for the entire Building (including leasable portions as well as non-leasable
portions) for electricity, gas (or other fuel), water (including, without
limitation, sewer rentals and any taxes on such utilities), and other
utilities, striping, sealing and repair of parking areas, driveways and
sidewalks on the Land, maintenance and replacement of all landscaping on the
Land and common area plants and foliage and replacement of all broken plate
glass in the Building (to the extent not covered by insurance), license, permit
and inspection fees, auditor’s fees for public accounting for the Building and
the preparation of Tax and Operating Expense Statements and supporting
information, and reasonable legal fees of outside or special counsel retained
by Lessor in connection with proceedings for the reduction of real estate
taxes, labor relations or other matters to the extent that the same shall be of
general benefit to all tenants in the Building or Park.


 


In connection with the computation of such
labor charges and management fees to be included in Operating Expenses, such
charges shall include, without limitation, salary, benefits, and other charges
that may be payable by Lessor for the Building employees, other employees of
Lessor, employees of Lessor’s agents, and agents of Lessor performing services
rendered in connection with the management, operation, repair and maintenance
of the Land, Building and Park and such other expenses as Lessor may deem
reasonably necessary and proper in connection with the operation and
maintenance of a first-class flex building and the parking and other common
areas.  If such personnel, equipment or
supplies are also involved or utilized in connection with another building or
project, such expenses shall be included in operating expenses only to the
extent, as determined by Lessor, that such personnel, equipment and supplies
are 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 for
the purpose of reducing operating expenses, other expenses or which may be
required by governmental authority under any governmental law or regulation
that was not applicable to the Building at the time it was constructed, shall
be amortized over such reasonable period as Lessor shall determine, together
with interest on the unamortized balance at the rate as may have been paid by
Lessor on funds borrowed for the


 


4





















 


purpose of constructing such capital
improvements, shall be included in operating expenses.  The term “common area(s)” as used in the
Lease shall mean all areas and improvements located on the Land and Park as
provided from time to time by Lessor for the general use, in common, of
tenants, their officers, agents, employees and customers, including, but not
limited to, parking areas, elevators, ground floor lobby area, exits,
entrances, roadways and stairways.


 


(f)                                    Notwithstanding
anything to the contrary in the definition of Operating Expenses and Real
Estate Taxes set forth above, Operating Expenses and Real Estate Taxes shall
not include the following, except to the extent specifically permitted by a
specific exception to the following:


 


(i)                                     Costs
incurred by Lessor due to the violation by Lessor or any tenant of the terms
and conditions of any lease of space in the Building;


 


(ii)                                  Overhead
and profit increment paid to Lessor or to subsidiaries or affiliates of Lessor
for goods and/or services in or to the Building to the extent the same exceeds
the costs of such goods and/or services rendered by unaffiliated third parties
on a competitive basis;


 


(iii)                               Lessor’s
general corporate overhead and general and administrative expenses including
costs relating to accounting, payroll, legal and computer services which are
totally rendered in locations outside the Building;


 


(iv)                              Any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Lessor;


 


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


 


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


 


(vii)                           Services
and utilities provided, taxes attributable to, and costs incurred in connection
with the operation of any retail, restaurant, athletic or recreational or child
care operations in the Building, except to the extent the square footage of
such operations are included in the rentable square feet of the Building and do
not exceed the services, utility and tax costs which would have been incurred
had such space been used for general office purposes;


 


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


 


(ix)                                Tax
penalties incurred as a result of Lessor’s negligence, inability or
unwillingness to make payments and/or to file any tax or informational returns
when due;


 


(x)                                   Notwithstanding
any contrary provision of the Lease, including, without limitation, any
provision relating to capital expenditures, any and all costs rising from the
presence of hazardous materials or substances (as defined by applicable
Environmental Laws in effect on the date the Lease is executed) in or about the
Premises, the Building or the Property including, without limitation, any
hazardous 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 the
negligence, in part or in whole, of Lessee;


 


5





















 


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


 


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


 


(xiii)         Costs
associated with the operation of the business of the partnership or entity
which constitutes Lessor as the same are distinguished from the costs of
operation of the Building, including partnership accounting and legal matters,
costs of defending any lawsuits with any mortgagee (except as the actions of
Lessee may be in issue), costs of selling, syndicating, financing, mortgaging
or hypothecating any of Lessor’s interest in the Building, costs of any disputes
between Lessor and its employees (if any) not engaged in Building operation,
disputes of Lessor with Building management, or outside fees paid in connection
with disputes with other tenants;


 


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


 


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


 


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


 


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


 


(xviii)      The
cost of any training or incentive programs, other than for tenant life safety
information services;


 


(xix)         The
cost of any “tenant relations” parties, events or promotion not consented to by
an authorized representative of Lessee in writing;


 


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


 


(xxi)         Reserves
of any kind, including but not limited to replacement reserves, and reserves
for bad debts or lost rent or any similar charge not involving the payment of
money to third parties;


 


(xxii)        Costs
incurred by Lessor in connection with rooftop communications equipment of
Lessor or other person, tenants, or occupants on the Building if such
communications equipment is not generally available to all tenants or occupants
of the Building; and


 


(xxiii)       Any
other expenses which, in accordance with generally accepted accounting
principles, consistently applied, would not normally be treated as Operating
Expenses by comparable Lessors of Comparable Buildings.


 


(g)                                 Lessor
further agrees that since one of the purposes of Operating Expenses and the
gross up provision is to allow Lessor to require Lessee to pay for the costs
attributable to its Premises, Lessor agrees that;


 


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


 


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


 


7.                                      USE OF PREMISES


 


Lessee shall use and occupy the Premises
solely for purposes of a general office and light assembly/manufacturing and
for no other purpose without the prior written consent of Lessor. Lessee shall
observe and comply with the Rules and Regulations attached hereto as Exhibit
D and made part hereof, as such rules and regulations may be amended from
time-to-time by Lessor, in the exercise of reasonable judgment, by prior
written notice from Lessor to Lessee. All such rules and regulations shall
apply to Lessee and its employees, agents, licensees, invites, sublessees and
contractors and shall be applied by Lessor in a reasonable and
non-discriminatory manner. In no event shall Lessor be required to enforce
Rules and Regulations on behalf of Lessee or liability to Lessee for failure to
enforce same as against any other tenant. Lessee shall not use or occupy or
suffer or permit the Premises or any part thereof to be used or occupied for
any purpose or in any manner contrary to law, any insurance policy covering the
Premises or the rules, regulations or requirements of any governmental
authority having jurisdiction over the Premises. Lessee agrees to use and
occupy the Premises in a careful, safe and proper manner and will not permit or
commit waste therein.


 


8.                                      CONSTRUCTION OF PREMISES


 


Lessor shall, without cost to Lessee, do that
portion of the construction and other items of work in the Premises in
accordance with the Work Letter Agreement attached hereto to and designated “Lessor’s
Work” in Exhibit C attached hereto. Lessee shall be permitted access to
the Premises for furniture set-up and move-in for a period of twenty (20) days
after substantial completion and prior to rent commencement. Provided Lessee
has not caused such delay, Lessee’s obligation to pay rent shall commence
twenty (20) days after all of its space has been substantially completed
pursuant to its final plans and specifications. “Substantially completed” shall
mean The terms “substantially completed” and “substantial completion” as used
in this Lease shall be The term “substantially completed” and “substantial
completion” as used in this Lease shall be construed to mean that all work
specified in Exhibit B hereof, and all drawings, plans and
specifications prepared and approved in accordance with Exhibit B have
been substantially completed in accordance therewith, except for minor items
typically known as “punch-list items”, which items Lessor can complete within
thirty (30) days and without material interference with the conduct of the
Lessee’s use of the Premises. Lessor shall complete all punch-list items with
due diligence, and will use commercially reasonable best efforts to complete
all punch-list items not later than thirty (30) days after the Lease
Commencement Date.


 


9.                                      ALTERATIONS


 


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


 


Unless otherwise agreed in writing at the
time of Lessor’s approval, all such alterations, additions or improvements,
along with the construction and other items of work done pursuant to Paragraph
8 hereof, shall become a part of the Premises when made and shall remain upon
and 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, or
within fifteen days thereafter Lessor so directs by written notice to Lessee.
Lessee shall promptly remove the alterations, additions, improvements or
installations which were placed in the Premises by Lessee and which are
designated in said notice. Lessee shall


 


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Promptly repair any damage occasioned by such
removal and in default thereof Lessor may effect said removals and repairs at
Lessee’s sole expense.


 


10.                               MECHANICS’ LIENS


 


Prior to the performance by Lessee of any
construction or other work on or about the Premises for which a lien could be
filed against the Premises, the Land, the Building, or the Park, Lessee shall
enter into a written “no lien” agreement with the contractor who is to perform
such work, and such written agreement shall be filed and recorded, in
accordance with the Mechanics’ Lien Law of Pennsylvania, prior to the
commencement of such work. Notwithstanding the foregoing, if any mechanics’ or
other lien shall be filed against the Premises or the Building purporting to be
for 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 record
by payment, bond or otherwise, within ten days after the filing thereof. If
Lessee shall fail to cause such lien to be discharged of record within such
ten-day period. Lessor may cause such lien to be discharged by payment, bond or
otherwise, without investigation as to the validity thereof or as to any
offsets or defenses thereto, and Lessee shall, upon demand, reimburse Lessor as
Additional 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; BUILDING
SERVICES


 


(a)                                  Lessor
has completed and delivered to Lessee Building shall in accordance
Architectural and Structural Drawings dated 8/20/01 as prepared by WTW
Architects, Inc, as further detailed on the attached Exhibit A1 - Building.


 


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


 


(c)                                  Lessor
represents that, at the time of execution of this Lease, the Building as
described in Paragraph 11(a) of this Lease, is in compliance with the
applicable requirements of the Americans with Disabilities Act them in effect
and all other applicable laws, rules, regulations and/or ordinances governing
the Building.


 


12.                               ASSIGNMENT AND SUBLETTING


 


(a)                                  Lessee
shall not, without the prior written consent of Lessor, assign or hypothecate
this 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 the
option of Lessor, terminate this Lease. This Lease shall not, nor shall any
interest herein, be assignable as to the interest of Lessee by operation of law
without the written consent of Lessor, which consent shall not be unreasonably
withheld or delayed beyond thirty (30) days after receipt of Lessee’s request.
Notwithstanding the foregoing, a corporate Lessee may, without consent of
Lessor, assign this Lease to its parent or subsidiary in connection with a
consolidation or merger of Lessee, or to any entity which acquires all or
substantially all of the assets or issued on outstanding shares of capital
stock of Lessee, provided the same assignee assumes, in full, the obligations
of Lessee under this Lease, and such assignment shall not relieve Lessee of its
obligation under this Lease; and provided further that such successor shall
have a net worth, as determined in accordance with generally accepted
principals of accounting, at least equal to the net worth, similarly
determined, of Lessee immediately prior to such consolidation or merger.
Notwithstanding anything herein to the contrary, the provisions of (a) hereof
shall be inapplicable in the event the shares of Lessee are publicly traded on
a nationally recognized stock exchange.


 


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


 


8





















 


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


 


(1)                                  Written
consent of Lessor;


 


(2)                                  Lessor
may exercise its option set forth above any time prior to the execution of a
sublease or assignment agreement to which Lessor has given its consent in
writing;


 


(3)                                  No
sublease or assignment shall be valid and no sublessee or assignee shall take
possession of the Premises or any portion thereof until an executed counterpart
of such document has been delivered to Lessor;


 


(4)                                  No
sublessee or assignee shall have a right further to sublet, and


 


(5)                                  Any
sums or other economic consideration, whether direct or indirect, received by
Lessee as a result of such subletting or assignment (except rental or other
payments received which are attributable to the amortization of the cost of
leasehold improvements, other than building standard tenant improvements, made
to the sublet portion of the Premises by Lessee for subtenant), whether
denominated rentals under the sublease or assignment or otherwise, which
exceed, in the aggregate, the total sums which Lessee is obligated to pay
Lessor under this Lease (prorated to reflect obligations allocable to that
portion of the Premises subject to such sublease or assignment and reduced by
those reasonable fees and expenses incurred by Lessee) shall be equally split
between the Lessee and Lessor and payable to Lessor as Additional Rent under the
terms of this Lease without affecting or reducing any other obligation of
Lessee hereunder.


 


(6)                                  In
no event shall the Rent be based in whole or in part upon the net operating
income of such Sublessee.


 


(c)                                  Unless
agreed in writing to the contrary, no subletting or assignment shall release
Lessee of Lessee’s obligation or alter the primary liability of Lessee to pay
the Rent and to perform all other obligations to be performed by Lessee
hereunder. The acceptance of Rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without necessity of exhausting remedies
against such assignee or successor. Lessor may consent to subsequent assignment
or subletting of this Lease or amendments or modifications to this Lease with
assignees of Lessee, without notifying Lessee, or any successor of Lessee, and
without obtaining its or their consent thereto and such action shall not
relieve Lessee of liability under this Lease.


 


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


 


13.                               ACCESS TO PREMISES


 


Lessor, its employees and agents, shall have
the 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 the
purpose of examining or inspecting the same, showing the same to mortgages or
to prospective purchasers, mortgagees or tenants of the Building, making such
replacements, alterations, repairs, improvements or additions to the Premises
or to the Building as Lessor may deem necessary or desirable, and providing
those Building Services to be provided by Lessor hereunder. If representatives
of Lessee shall not be present to open and permit entry into the Premises at
any time


 


9





















 


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


 


14.                               REPAIRS


 


(a)                                  Lessor
shall 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 be
reimbursed as expressly provided in Paragraph 6. In no event shall Lessor be obligated
for any of such repairs until the expiration of a reasonable period of time
after written notice from Lessee that such repair is needed. In no event shall
Lessor be obligated under this paragraph to incur the expense for the repair of
any damage caused by any act, omission or negligence of Lessee or its
employees, agents, invitees, licensees, sublessees, or contractors. If (i)
Lessor fails or neglects to commence such repair within five (5) days after
receipt 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 such
notice; or (iii) in the event of an emergency, then Lessee may make such
repairs as it deems necessary for the account of Lessor. Following Lessee’s completion
of such repair work, Lessor shall promptly reimburse Lessee for expenses
incurred upon its receipt of a paid invoice. Failure of Lessor to reimburse
Lessee within thirty (30) days of demand shall entitle Lessee to deduct the
amount of such invoice for expenses from Lessee’s next installment(s) of Base
Rent.


 


(b)                                 Except
as Lessor is obligated for repairs as provided hereinabove, Lessee shall make,
at its sole cost and expense, all repairs necessary to maintain the Premises
and shall keep the Premises and the fixtures therein in neat and orderly
condition and in good order and repair. If Lessee refuses or neglects to make
such repairs, or fails to diligently prosecute the same to completion, after
written notice from Lessor of the need therefor, Lessor may make such repairs
at the expense of Lessee and such expense shall be collectible as Additional
Rent.


 


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


 


15.                               SURRENDER OF PREMISES


 


At the end of the term of this Lease, Lessee shall
surrender the Premises to Lessor, together with all alterations, additions and
improvements thereto, including but not limited Lessor installed demountable
partitions, doors, glass flooring, in broom clean condition and in good order
and repair except for ordinary wear and tear and damage for which Lessee is not
obligated to make repairs under this Lease. Subject to provisions of Paragraph
9 hereof and if Lessee is not then in default under the terms hereof Lessee
shall have the right at the end of the term of this Lease to remove any
equipment, furniture, trade fixtures or other personal property placed in the
Premises by Lessee, provided that Lessee promptly repairs any damage to the
Premises caused by such removal. For the purpose of this Lease, Lessee shall
remove all alterations, additions, improvements or installations as to which
Lessor shall have made the election provided for in Paragraph 9 hereof, except
as otherwise agreed in writing. Lessee shall repair all damage to the Premises
caused by such removal and restore the Premises to the condition in which they
were prior to the installation of the items so removed, ordinary wear and tear
excepted. Lessee shall surrender the Premises to Lessor at the end of the term
of this Lease, without notice of any kind, and Lessee waives all right to any
such notice as may be provided under any laws now or hereafter in effect in
Pennsylvania, including the Landlord and Tenant Act of 1951, as amended.


 


16.                               HOLDING OVER


 


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


 


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17.                               INDEMNIFICATION
AND LIABILITY


 


(a)                                  Lessee shall indemnify, hold harmless and
defend Lessor from and against any and all costs, expenses (including without
limitation, reasonable attorney’s and paralegal’s fees), liabilities, losses,
damages, suits, actions, fines, penalties, claims or demands of any kind and
asserted 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 by
Lessee to perform any of the agreements, terms, covenants or conditions of this
Lease required to be performed by Lessee, (ii) any failure by Lessee to comply
with any statutes, ordinances, regulations or orders of any governmental
authority, or (iii) any accident, death or personal injury, or damage to or
loss or theft of property, which shall occur in or about the Premises except as
the same may be caused by the gross negligence of Lessor, its employees or
agents.


 


(b)                                 Notwithstanding anything to the contrary
provided in this Lease, except for damage or injury caused by the gross
negligence of Lessor, its agents of employees, lessor shall not be liable for
any personal injuries occurring in the premises or for damage or injury to
personal property of Lessee, or of any other person, done or occasioned by or
from electric wiring, plumbing, dampness, water, gas steam or other pipes, or
sewage, or the failure of the air conditioning or refrigeration system, or the
breaking of any electric wire, the bursting, leaking or running water from any
tank, washstand, water closet or waste pipe, sprinkler system, radiator or any
other pipe in, above, upon or about the Building or premises, or which may at
any time hereafter by placed herein; or for any such personal injury or
property 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, or
for any damages or injuries to persons or property arising from acts or neglect
of any tenant or occupant of the Building, or of any owners or occupants of
adjacent or contiguous property; or for the loss or theft of any property of
Lessee however occurring.


 


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


 


(d)                                 Notwithstanding any other provision to the
contrary set forth in this Lease, if the Premises shall lack any “essential
service” (as hereinafter defined) which Lessor in required to provide
hereunder, thereby rendering the premises or a portion thereof “untenantable”
(as hereinafter defined), for a period of ten (10) consecutive Business Day’s
after Lessor’s receipt of written notice from Lessee of such condition and such
interruption occurs or continues as a result of the negligent acts or willful
misconduct of the Lessor, its agents, employees or contractors, then provided
that (i) such untenantability and Lessor’s inability to cure such condition
does not arise out of or result from default or neglect of Lessee or Lessee’s
agents, employees or contractors, or any of the other causes identified in subsection (a)
above, and (ii) Lessee actually vacates all or substantially all of the
Premises, then the Base Rent and other Rent amounts payable hereunder shall
thereafter be equitably abated on a day-for-day basis until the date such
essential service is substantially restored. 
The provisions of this subsection (b) shall not apply in the event
of an Unavoidable Delay, or a fire, other casualty or eminent domain event, or
other event governed by the provisions of Article 19 and/or 21 hereof. For
purposes of this Lease, the terms “untenantable” and “untenantability” shall
mean that the Premises, or any portion of the Premises, as the case may be, are
not, despite Lessee’s commercially reasonable good faith efforts, usable by
Lessee 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 is
required to provide the same to the Lessee under this Lease: electricity, water
and HVAC service.  The foregoing rent
abatement shall be the sole and exclusive remedy of the Lessee on account of
such interruption or lack of service and Lessor shall have no further liabilities
or obligations to Lessee on account thereof.


 


18.                               INSURANCE


 


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


 


11





















 


within ten days prior to the Commencement Date, and
thereafter 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 for
accident, death or personal injury or for damage or injury or loss or theft of
property sustained by Lessee and all other persons which arise from or in any
manner grow out of any acts in or about the Premises.


 


(b)                                 During the Lease Term, Lessee shall maintain
in full force general liability insurance written on an occurrence basis, at
Lessee’s sole expense.  The policy(ies)
shall be issued by one or more responsible insurance carriers licensed to do
business in the Commonwealth of Pennsylvania, insuring against liability for
injury to or death of persons and loss of or damage to property occurring in
and on the Premises.  Such liability
insurance shall name Lessor as an additional insured.  The coverage limits of the policy shall be a
combined single limits for bodily injury and property damage in an amount of
Three 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 Million
Dollars ($2,000,000) of which may be provided by umbrella coverage).  Lessee shall not knowingly conduct any
operation in the Premises which would cause suspension or cancellation of such
all risk insurance coverage carried by Lessor. 
If Lessee should change its use of the Premises and thereby causes an
increase 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 occupancy
of Lessee, the amount of the competitively priced increase in net annual
premium to insure the Premises shall be paid to Lessor by Lessee as Additional
Rent annually upon demand and presentation of written evidence by Lessor.


 


(c)                                  Lessor and Lessee hereby waive on behalf of
themselves and their respective insurers, any claims that either may have
against the other for loss or damage resulting from perils covered by the
standard form of fire and extended coverage insurance, including vandalism and
malicious mischief, to the extent of such policies which shall be in effect
from time to time in the Commonwealth of Pennsylvania, it being expressly
understood that this waiver is intended to extend to all such loss or damage
whether or not the same is caused by the fault or neglect of either Lessor or
Lessee.  Each party shall secure from its
casualty insurer a waiver of subrogation endorsement to its policy and, upon
request, deliver a copy of such endorsement to the other party to this Lease.


 


19.                               FIRE
OR OTHER CASUALTY


 


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


 


(b)                                 If the Premises should be damaged by fire or
other casualty such that rebuilding or repairs cannot be completed within one
hundred 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 the
Premises, terminate this Lease on written notice to Lessor, and rent and all
additional charges shall be abated as of the date of the happening of the
damage.


 


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


 


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


 


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labor or materials or acts of God,
governmental restriction, regulation, or control, enemy or hostile governmental
action, civil commotion, insurrection, revolution, sabotage, or fire or other
casualty, or other similar condition beyond the reasonable control of the party
claiming same, including fuel shortages, but specifically excluding financial
inability.  If Lessor shall, as the
result of such event, fail punctually to perform any obligation required in
Paragraphs 8, 12, 15, 18, and 20 hereof, then such obligation shall be
punctually 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 provided
therefor in this lease, such time limit shall be deemed extended for a period
equal to the duration of such event.


 


28.                               SUCCESSORS


 


The respective rights and obligations
provided in this Lease shall bind and shall inure to the benefit of the parties
hereto, their legal representative, heirs, successors and assigns; provided,
however, that no rights shall inure to the benefit of any successor of Lessee
unless Lessor’s written consent for the transfer to such successor has first
been obtained as provided in Paragraph 13.


 


29.                               GOVERNING LAW


 


This Lease shall be construed, governed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania
without regard to its conflicts of law provisions.


 


30.                               SEVERABILITY


 


If any provisions of this Lease shall be held
to be invalid, void or unenforceable, the remaining provisions hereof shall in
no way be affected or impaired and such remaining provisions shall remain in
full force and effect.


 


31.                               RELOCATION OF LESSEE – INTENTIONALLY
REMOVED


 


32.                               CAPTIONS


 


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


 


33.                               NOTICES


 


All notices required or permitted hereunder
shall be deemed sufficiently given if sent by nationally recognized overnight
courier, 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 notice
so given to the other, given in accordance herewith.


 


34.                               HAZARDOUS MATERIALS


 


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


 


(b)                                 For
purposes hereof, “Hazardous Materials” includes, without limit, any flammable
explosives, 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 any
pollutant or contaminant defined as such , in or used by any federal, state or
local law, ordinance, rule, regulation, standard, order or decree which relates
to protection of the public health, welfare and the environment, including
without limitation those relating to the storage, handling and use of chemicals
and other hazardous materials, those relating to the generation, processing,
treatment, storage, transport, disposal or other management of waste material
of any kind and those relating to the protection of environmentally sensitive
areas (“Environmental Laws”).  The term “release”
as used herein means depositing, spilling, leaking, pumping, pouring, emitting,
erupting, discharging, injecting, escaping, leaching, dumping or disposing into
the environment.


 


(c)                                  Notwithstanding
this provision, in the event Lessee or Lessor becomes aware that a release or
threat of release of Hazardous Materials on, onto or from the Premises has
occurred, such party agrees to give timely and appropriate required regulatory
notices, copying the other parry.


 


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


 


35.                               BROKERS


 


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


 


36.                               EXECUTION


 


This Lease shall become effective when it has
been signed by a duly authorized officer of Lessor and a duly authorized
officer 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 executed
counterparts shall be deemed original and it shall not be necessary in making
proof of this Lease to produce or account for more than one such counterpart.


 


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


 


37.                               EXHIBITS


 


All exhibits referred to herein shall be considered
a part hereof for all purposes with the same force and effect as if copied at
verbatim 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 Exhibits
hereto, contains all the agreements, conditions, understandings,
representations and warranties made between the parties hereto with respect to
the subject matter hereof, and may not be modified orally or in any manner
other than by an agreement in writing signed by both parties hereto or their
respective successors in interest, except amendments to the Rules and
Regulations made in accordance with the provisions of Paragraph 7 above.


 


39.                               EARLY TERMINATION OPTION


 


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


 


40.                               OPTION TO EXPAND


 


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


 


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


 


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


 


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


 


41.                               RIGHT
OF FIRST REFUSAL


 


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


 


42.                               OPTION
TO RENEW


 


Provided Lessee is not in default under this Lease
beyond applicable cure periods or any renewals or extensions thereof, Lessee
shall have two (2) consecutive options to renew its lease for all or part of
the Premises for additional periods of five (5) years. In no event shall the
renewal apply if that portion of the space remaining is less than half of the
initial Premises under the initial Term and/or the remaining premises is not
commercially marketable in Lessor’s reasonable discretion. The terms and
conditions for such renewals shall be consistent with the existing lease
document, with the exception of base rent which shall be at fair market value
for comparable space in comparable buildings in Cranberry Business Park. For
the First Renewal Option, Lessor shall provide Lessee with the base rent for
the renewal period on or before December 1, 2011. For the Second Renewal
Option and provided Lessee exercised its First Renewal Option herein. Lessor
shall 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 written
notice of intent to exercise such renewal options.


 


43.                               SATELLITE
DISH


 


Lessor hereby licenses to Lessee use of a portion of the roof of the Building to
install 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 a
separate license agreement between Lessor and Lessee, with terms and conditions
satisfactory to all parties and their respective counsel. Such agreement shall
contain the conditions for securing Lessor’s approval for installation,
operation and maintenance of the Dish, securing any permits as may be required
by law and indemnifying Lessor.


 


44.                               SIGNS


 


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


 


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45.                               FINANCIAL STATEMENTS


 


Lessee shall deliver to Lessor or Lessor’s
existing or prospective mortgagees within 90 days of the close of each fiscal
year Lessee’s financial statements certified by an officer of Lessee as true
and correct. Lessee represents to Lessor that any and all financial statements
delivered pursuant hereto shall be complete and correct and fairly represent
the financial condition of Lessee as of the dates and for the periods referred
to and have been prepared in accordance with Generally Accepted Accounting
Principals consistently applied throughout the periods involved.


 


[THIS SPACE INTENTIONALLY LEFT
BLANK]


 


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IN WITNESS WHEREOF, the parties hereto have
duly 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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