SECURITIES AND EXCHANGE COMMISSION
Washington, DC 02549
FORM 1O-K
AMENDMENT 1
_X_ Annual report pursuant to section 13 or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year ended December 3l, 1996 or
___ Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from ________ to _________
Commission file number 0-15864
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SCAN-GRAPHICS, INC.
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(Exact name of registrant as specified in its charter)
Pennsylvania 95-4091769
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 Abbott Drive, Broomall, PA 19008
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, (including area code) 610-328-1040
------------
Securities registered pursuant to Section 12(b) of the Act: None
----
Securities registered pursuant to Section 12(g) of the Act:
Common Stock. par value $.001 Per share
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(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K X.
---
The aggregate market value of the Voting Stock held by non-affiliates of the
registrant computed by reference to the closing price as reported on the NASDAQ
system as of February 28, 1997 was $55,317,613.
The number of shares of the registrant's Common Stock issued and outstanding as
of February 28, 1997 was 15,665,165 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive Proxy Statement for its 1996 Annual
Meeting of Shareholders are incorporated by reference into Part III.
This amendment to the 1996 Scangraphics, Inc. Form 10-K is filed to incorporate
the Financial Data Schedule and related exhibits which should have been
submitted with our original filing.
<PAGE>
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES. AND REPORTS ON FORM 8-K
Item 14(a) 1 and 2 Financial Statements and Schedules. See "Index to Financial
Statements and Schedules" on F-1.
(b) Reports on Form 8-K
None filed in the last quarter of the period covered by this report.
(c) Exhibits
The following is a list of exhibits filed as part of this annual report on Form
10-K. Where so indicated by footnote, exhibits which were previously filed are
incorporated by reference. For exhibits incorporated by reference, the location
of the exhibit in the previous filing is indicated in parenthesis.
3.1 Articles of incorporation (2) (Exhibit 3.1).
3.2 Bylaws (2) (Exhibit 3.2).
3.3 Amendment to Articles of Incorporation. (7)
4.1 Specimen copy of stock certificate for shares of Common
Stock of the Registrant. (5)
4.2 Specimen copy of stock certificate for shares of Class A
Convertible Preferred Stock Series A (1) (Exhibit 4.2).
4.3 Specimen copy of stock certificate for shares of Class B
Preferred Stock (1) (Exhibit 4.3).
4.4 Restricted Common Stock Registration Rights (l)
(Exhibit 4.1).
4.5 Form of Common Stock Warrant (l) (Exhibit 4.4).
4.6 Form of Redeemable Common Stock Purchase Warrant and
Subscription Agreement (l) (Exhibit 4-5).
4.8 Specimen copy of stock certificate for shares of Class A
Convertible Preferred Stock Series C. (7)
** lO.1 Employment Contract - Andrew E. Trolio (1) (Exhibit 10.l).
** 10.2 Employment Contract - Anthony M. Trolio (1) (Exhibit 10.4).
** 10.4 Form of Common Stock Option (1) (Exhibit 10.6).
** 10.5 SCAN-GRAPHICS, Inc. 1992 Long Term Incentive Plan (3)
(Exhibit 2.1 - Annex E).
10.6 Facility Lease, 700 Abbott Drive, Broomall, PA (6)
(Exhibit 10.6).
10.7 Form of Selling Shareholder Agreement (4) (Exhibit 10.2).
10.8 Agreement between SCAN-GRAPHICS, Inc. and Howard L. Morgan
and the ARCA Group, Inc. (5) (Exhibit 10.9).
2
<PAGE>
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(Continued)
10.9 Agreement between SCAN-GRAPHICS, Inc. and Michael A.
Mulshine and Osprey Partners. (Exhibit 10.9)(6)
* 10.9.1 Agreement between SCAN-GRAPHICS, Inc. and Michael A.
Mulshine and Osprey Partners. (Exhibit 10.9.1)
* 10.9.2 Agreement between SCAN-GRAPHICS, Inc. and Michael A.
Mulshine and Osprey Partners. (Exhibit 10.9.2)
* 10.9.3 Finders Fee Agreement between SCAN-GRAPHICS, Inc. and Osprey
Partners and C&F Global Enterprises. (Exhibit 10.9.3)
* 10.10 Facility Lease, 649 N. Lewis Road, Limerick, PA.
(Exhibit 10.10)
* 10.10.1 Addendum to Facility Lease, 649 N. Lewis Road, Limerick, PA.
(Exhibit 10.10.1)
*,**10.11 Employment Contract - Laurence L. Osterwise (Exhibit 10.11)
*,**10.12 Employment Contract - Richard L. Rex (Exhibit 10.12)
*,**10.13 Employment Contract - Bruce Downing (Exhibit 10.13)
*,**10.14 Employment Contract - William Hubbard (Exhibit 10.14)
* 10.15 License Agreement between The Ohio State University Research
Foundation and Sedon GeoServices, Inc. (Exhibit 10.15)
23.1 Consent of BDO Seidman, LLP With respect to the registration
statement on Form S-3 (33-47127) (Exhibit 23.1)
* 23.2 Consent of BDO Seidman, LLP with respect to the registration
statement on Form S-3 (333-3719). (Exhibit 23.2)
25.1 Power of attorney (included on the signature page to this
Form 10-K).
* 27 Financial Data Schedule.
* Filed herewith.
** Executive Compensation Plans and Arrangements.
(1) Filed as an Exhibit to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1991, as amended by Amendment No. 1 on Form 8 dated
June 12, 1992 and Amendment No 2 on Form 8 dated July 27, 1992.
(2) Filed as an Exhibit to the Company's Current report on Form 8-K dated
June 15,1992.
(3) Filed as an Exhibit to the Registration Statement on Form 8-K, filed under
the Securities Exchange Act of 1934, dated June 19, 1992.
3
<PAGE>
ITEM 14, EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(continued)
(4) Filed as an Exhibit to Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (Registration No. 33-47127) filed on July 2, 1992.
(5) Filed as an Exhibit to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1992, as amended by Amendment No. 1 on Form 8 dated
April 21, 1993.
(6) Filed as an Exhibit to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1994.
(7) Filed as an Exhibit to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SCAN-GRAPHICS, INC.
May 5, 1997 /s/ Andrew E. Trolio
- - ----------- -----------------------------------
Date Andrew E. Trolio
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant, in
the capacities and on the dates indicated.
Each person in so signing also makes, constitutes and appoints Andrew E. Trolio,
Chairman of the Board of Directors, President and Chief Executive officer, his
true and lawful attorney-in-fact, in his name, place and stead, to execute and
caused to be filed with the Securities and Exchange Commission, any or all
amendments to this report.
Signatures
By /s/ Andrew E. Trolio Date May 5, 1997
- - -------------------------------------------- -----------
Andrew E. Trolio
Chairman of the Board of Directors,
President and Chief Executive Officer
By /s/ Denis P. Kelly Date May 5, 1997
- - -------------------------------------------- -----------
Denis P. Kelly
Director, Corporate Finance
{Principal Financial and Accounting Officer)
By /s/ Michael A. Mulshine Date May 5, 1997
- - -------------------------------------------- -----------
Michael A. Mulshine
Director and Secretary
By /s/ R. Barry Borden Date May 5, 1997
- - -------------------------------------------- -----------
R. Barry Borden
Director
By /s/ David S. Hirsch Date May 5, 1997
- - -------------------------------------------- -----------
David S. Hirsch
Director
By /s/ Jack Pellicci Date May 5, 1997
- - -------------------------------------------- -----------
Jack Pellicci
Director
By /s/ James C. Sargent Date May 5, 1997
- - -------------------------------------------- -----------
James C. Sargent
Director
5
<PAGE>
OSPREY PARTNERS
===============================================================================
INVESTMENT BANKING o MANAGEMENT CONSULTING
CONFIDENTIAL
Shareholder/Investor Relations
Compensation Aqreement
The following sets forth the terms of the engagement of OSPREY PARTNERS, 2517
Route 35, Suite D-201, Manasquan, NJ 08736 ("Osprey") by SCAN-GRAPHICS, INC.,
700 Abbott Drive, Broomall, PA 19008 (the "Company") for the year ending
December 31. 1996.
1. With regard to Osprey's shareholder and investor relations activities on the
Company's behalf, Osprey will, in concert with the Company's management, assist
in the preparation of the Company's News Releases, Annual Reports, Notice of
Annual Meeting of Shareholders, Proxy Statements and other SEC required reports;
and continue to handle shareholder and financial community public relations for
the Company.
2. In consideration of Osprey's services pursuant shareholder and investor
relations activities on the Company's behalf, Osprey shall be entitled to
receive, and the Company agrees to pay Osprey the following compensation:
Upon execution of this Agreement for services from January 1, 1996 through
December 31, 1996 the Company shall issue to Osprey warrents to purchase up
to 60,000 shares of its common stock, such warrants to vest at the rate of
5,000 shares on the first of each month for the twelve (12) months starting
January 1, 1996, such warrants to be exerciseable at $3.00 per share
through December 31, 2000. These Warrants will vest in the fashion
described whether or not the holder continues to be employed by the
Company, with such Warrants having "piggyback" rights of registration on
the next Registration Statement to be filed by the Company, and subject to
the terms, conditions and limitations set forth herein. The Company
reserves the right to pay Osprey in cash at the rate of $1.25 per warrant
(share) up to $6,250 before the first of each month in lieu of up to the
5,000 warrants that otherwise would have vested on the first of that month.
(Example: If the Company pays Osprey a retainer in the amount of $1,250
before the first of any month of 1996, 1,000 of the 5,000 warrants to vest
upon the first of that month would be canceled, and the remaining 4,000
warrants would vest in Osprey.)
3. The Company agrees to reimburse, upon request from time-to-time, all
out-of-pocket expenses incurred by Osprey in connection with its activities on
behalf of the Company.
CONFIDENTIAL
Accepted and Agreed to:
OSPREY PARTNERS SCAN-GRAPHICS, INC.
By: /s/ Michael A. Mulshine By: /s/ Andrew E. Trolio
----------------------- --------------------
Michael A. Mulshine Andrew E. Trolio
President President
Date: 4/25/96 Date: 4/29/96
--------------------- ------------------
2517 Route 35 o Suite D-201 o Manasquan, NJ 08736
908-528-8585 o FAX: 908-223-9803 o E-Mail: [email protected]
A Mulshine Group Company
<PAGE>
OSPREY PARTNERS
===============================================================================
INVESTMENT BANKING o MANAGEMENT CONSULTING
CONFIDENTIAL
Consulting Aqreement
The following sets forth the terms of the engagement of OSPREY PARTNERS 2517
Route 35, Suite D-201, Manasquan, NJ 08736 ("Osprey") by SCAN-GRAPHICS, INC.,
700 Abbott Drive, Broomall, PA 19008 (the "Company").
1. Osprey shall provide services pursuant to shareholder and investor relations
activities on the Company's behalf. Osprey will in concert with the Company's
management, continue to assist in the preparation of the Company's News
Releases, Annual Reports, Notice of Annual Meeting of Shareholders, Proxy
Statements, and other SEC required reports; and continue to handle shareholder
and financial community public relations for the Company.
In consideration of Osprey's services pursuant to shareholder and investor
relations activities on the Company's behalf, Osprey shall be entitled to
receive, and the Company agrees to pay Osprey the following compensation:
Upon execution of this Agreement for services the Company shall pay Osprey
a monthly retainer in the amount of $5,000, which amount shall be due and
payable on the first day of each month starting January 1 1997.
2. The term of this agreement shall be one (1) year commencing on January 1,
1997, and thereafter shall continue from year-to-year unless and until either
party shall give notice to the other at least 90 days prior to the end of the
original or then current renewal term of its intention to terminate at the end
of said term. Further this agreement may be terminated at any time upon 90 days
notice by either party to the other
3. The Company agrees to reimburse Osprey, upon request from time-to-time all
reasonable out-of-pocket expenses (supported by receipts) incurred by Osprey in
connection with its activities on behalf of the Company.
CONFIDENTIAL
Accepted and Agreed to:
OSPREY PARTNERS SCAN-GRAPHICS, INC.
By: /s/ Michael A. Mulshine By: /s/ Andrew E. Trolio
----------------------- --------------------
Michael A. Mulshine Andrew E. Trolio
President President
Date: 12/31/96 Date: 12/31/96
--------------------- ------------------
2517 Route 35 o Suite D-201 o Manasquan, NJ 08736
908-528-8585 o FAX: 908-223-9803 o E-Mail: [email protected]
A Mulshine Group Company
<PAGE>
OSPREY PARTNERS
===============================================================================
INVESTMENT BANKING o MANAGEMENT CONSULTING
CONFIDENTIAL
Finder's Fee Aqreement
The following sets forth the terms of the engagement of C&F GLOBAL ENTERPRISES,
INC., an Ohio Corporation ("C&F"), and OSPREY PARTNERS, 2517 Route 35, Suite
D-201, Manasquan NJ 08736 ("Osprey"), together to be referenced as
"C&F/Osprey", by SCAN-GRAPHICS, INC., 700 Abbott Drive. Broomall, Pa 19008 (the
"Company") for the specific task of raising up to S5,000,000 by way of the
private placement of certain equity securities of the Company as described in
the attached Subscription Agreement or any modification thereof.
1. C&F/Osprey will assist the Company as management consultant and financial
advisor in connection with this financing. In connection with C&F/Osprey's
activities on the Company's behalf: C&F/Osprey will in concert with the
Company's management a) prepare descriptive information as required, for the
purpose of soliciting Candidates; b) contact and elicit interest, with the
Company's management assistance, as needed, from Candidates.
2. In connection with C&F/Osprey's activities on the Company's behalf the
Company will furnish C&F/Osprey with all information and data concerning the
Company which C&F/Osprey and the Company agree to be appropriate and will
provide C&F/Osprey and any Candidates with access to the Company's officers,
directors, employees, independent accountants and legal counsel as is determined
to be appropriate to the particular Candidates requirements.
3. In consideration of C&F/Osprey's services pursuant to this Agreement,
C&F/Osprey shall be entitled to receive, and the Company agrees to pay
C&F/Osprey the following compensation:
a) In the event a Transaction is consummated with any Candidate through the
efforts of C&F/Osprey, then the Company shall pay C&F/Osprey upon such
consummation a cash fee equal to eight percent (8%) of any amount raised in (or
the value of the Transaction, with such cash fee to be paid at the rate of five
percent (5%) to C&F and three percent (3%) to Osprey.
b) C&F Osprey will also be issued 1,000 warrants per Unit placed of the
private placement as described in the attached Subscription Agreement, such
warrants to be exercisable for up to five (5) years at an exercise price equal
to the "Closing Bid" on the date of closing of such units Any warrants issued
under this agreement shall be issued fifty percent (50%) to C&F and fifty
percent (50%) to Osprey.
4. The above compensation will be paid to C&F/Osprey in the event any
Transaction occurs within twenty four (24) months following the term of this
Agreement, or any extension thereof, with any party with whom C&F/Osprey, had
negotiated on behalf of the Company provided that
2517 Route 35 o Suite D-201 o Manasquan, NJ 08736
908-528-8585 o FAX: 908-223-9803 o E-Mail: [email protected]
A Mulshine Group Company
<PAGE>
OSPREY PARTNERS
such a party is identified on a written list of prospective Candidates to be
provided to the Company within fifteen (15) days after the expiration or
termination of this Agreement.
5. This Agreement may be terminated by any party by the giving of written notice
of termination to the other parties.
6. The benefits of this Agreement shall inure to the respective successors and
assigns of the parties hereto and of the indemnified parties hereunder and their
successors and assigns and representatives, and the obligations and liabilities
assumed in this Agreement by the parties hereto shall be binding upon their
respective successors and assigns.
Accepted and Agreed to:
C&F GLOBAL ENTERPRISES, INC.
By: /s/ [CLIENT SUPPLY]
------------------------
Its: President
-----------------------
Date: 2/7/96
----------------------
OSPREY PARTNERS SCANGRAPHICS, INC.
By: /s/ Michael A. Mulshine By: /s/ Andrew E. Trolio
----------------------- --------------------
Michael A. Mulshine Andrew E. Trolio
President President
Date: 2/12/96 Date: 2/12/96
--------------------- -------------------
<PAGE>
OSPREY PARTNERS
===============================================================================
INVESTMENT BANKING o MANAGEMENT CONSULTING
March 24, 1996
TO: Andy Trolio
FM: Mike Mulshine
RE: Broad Capital Associates - $3,100,000 "Reg D" Investment
As discussed, the additional 200,000 A Warrants and 200,000 B Warrants were
negotiated into the transaction so as to eliminate certain restrictions that
Broad Capital wanted to put on the use of proceeds. I will discuss this with you
further.
1) Investment: - $3,100,000 Reg D -- Structured as 62 Units of $50,000. Each
Unit consists of a $50,000 note, 19,355 A Warrants, and 19,355 B Warrants.
Warrant totals are 1,200,000 A Warrants and 1,200,000 B Warrants.
2) Term of Notes: Convertible within 1-year, 8% interest, increases to 12% in
120 days and to 18% in 180 days if Registration Statement is not yet effective.
Interest payable at maturity unless converted. Subject to "Reg D Registration"
within 120 days. Net Proceeds of $3,000,000 to be wired to Scangraphics account
on Wednesday, March 27, 1996.
3) Terms of Note Conversion: 65% of "Market Price" at conversion, but conversion
price is never more than $3.00 per share. Market Price is computed as the
average "closing Bid" price of the stock for the last 5 trading days prior to
conversion, but not higher than $3.00 per share. Conversions will be in minimum
amounts of $250,000 at a time, and all amounts must be converted within one (1)
year of closing.
4) A & B Warrants: The following A and B Warrants, to be exercisable for up to
three {3) years from closing.
a) 19,355 A Warrants per Unit, with the exercise price to "float" with
the exercise price of the convertible, i.e. at the same 35% discount
from the then current "closing Bid" for the average of the prior five
trading days, but not higher than $3.00 per share.
b) 1,000,000 B Warrants, with an exercise price of $4.00 per share.
5) Finders Fee: $100,000 to Mueller Trading.
6) Consultant: Bryan Finkel will retained by the Scangraphics under a consulting
agreement for one (1) year, and will put in at least 2 days per week at the
Company. Mr. Finkel will be paid a consulting fee of $4,000 per month and will
be granted 200,000 A Warrants.
2517 Route 35 o Suite D-201 o Manasquan, NJ 08736
908-528-8585 o FAX: 908-223-9803 o E-Mail: [email protected]
A Mulshine Group Company
<PAGE>
OSPREY PARTNERS
7) Investment Banking & Management Consulting Fee: Osprey will invoice
Scangraphics as follows:
On $3,000,000 cash upon initial invest of Broad Capital:
a) Cash Fee of 8% due to Osprey upon receipt of net proceeds by
Scangraphics (of which Osprey will retain 3% and 5% will be paid to C&F
Global); and
b) Warrant Fee of 60,000 Wts to Osprey and 60,000 Wts to C&F Global, based
on ratio of agreed 200,000 Wts (100,000 each) for $5,000,000 of capital.
On Cash into Company upon exercise of The A Warrants:
a) Cash Fee of 8% due to Osprey upon receipt of net proceeds by
Scangraphics (of which Osprey will retain 3% and 5% will be paid to C&F
Global); and
b) Warrant Fee of 50,000 Wts to Osprey and 50,000 Wts to C&F Global,
exercisable at $3.00 for up to 5 years, vesting upon exercise of the A
Warrants by Broad Capital.
c) Osprey will not invoice Scangraphics against proceeds that may be
received by the Company by way of Bryan Finkel's 200,000 A Warrants.
On Cash into Company upon exercise of the B Warrants:
a) Cash Fee of 8% due to Osprey upon receipt of net proceeds by
Scangraphics (of which Osprey will retain 3% and 5% will be paid to C&F
Global); and
b) Warrant Fee of 50,000 Wts to Osprey and 50,000 Wts to C&F Global,
exercisable at $4.00 for up to 5 years, vesting upon exercise of the B
Warrants by Broad Capital.
The above cash and warrant fees are based on the percentages and structure
previously agreed to by the Board of Directors of Scangraphics.
cc C&F Global
BC4.SCN
MAM/mif
<PAGE>
INDEX TO LEASE AGREEMENT
BETWEEN
LEWIS ROAD ASSOCIATES, LANDLORD
AND
SEDONA - GEOSERVICES, INC., TENANT
Paragraph # Heading Page #
- - ----------- ------- ------
1 Demised Premises 1
2 Use of Premises 2
3 Name or Designation of Business 3
4 Term of Lease 3
5 Base Rent 6
6 Common Cost of Taxes, Maintenance &
Operating Expenses, Additional Rent 13
7 Utilities 13
8 Condition of Premises; Construction;
Alterations and Improvements 15
9 Landlords Financial Assistance to Tenant 20
10 Security Deposit 21
11 Common Areas 23
12 Cleaning of Demised Premises 26
13 Heating & Air Conditioning, Plumbing
& Electrical Services 26
14 Indemnification Waiver of Claim & Subrogation 27
59
<PAGE>
Paragraph # Heading Page #
- - ----------- ------- ------
15 Insurance 30
16 No Partnership 33
17 Eminent Domain 33
18 Destruction of Demised Premises 36
19 Security on Demised Premises 39
20 Fire Exits 40
21 Tenants Affirmative Covenants 40
22 Tenants Negative Covenants 43
23 Rights Reserved by the Landlord 48
24 Additional Rent, Late Charges, Interest and
Bad Check Charges 53
25 Documentary Stamps as Additional Rent 54
26 Tenants Failure to Comply with Covenants of Lease 54
27 Events of Default 55
28 Landlord's Rights & Remedies Upon Tenants Default 58
29 Waivers 62
30 Confession of Judgment -- Money 63
31 Confession of Judgment -- Possession of Demised Premise 65
32 Conclusion Evidence of Facts in Action for Judgment
By Confession 66
33 Release of Errors 67
34 Landlord's Right to Assign Remedies 67
35 Landlord's Remedies Cumulative 67
36 Subordination of Lease 68
37 Waiver 68
38 Accord and Satisfaction 68
60
<PAGE>
Paragraph # Heading Page #
- - ----------- ------- ------
39 Notices 69
40 Quiet Enjoyment 69
41 Captions & Index 70
42 Entire Agreement 70
43 Recording 71
44 Partial Invalidity 71
45 Tenant Defined; Use Of Pronoun 71
46 Negotiation Of Landlord's Personae Liability 72
47 Successors 73
48 Construction 74
49 Submission Of Lease To Tenant 74
50 Management Agent 74.1
61
<PAGE>
Exhibits Attached to Lease Agreement
Exhibit A -- Legal Description of Land Upon Which
Professional Center is Situate.
Exhibit B -- Specht Building Site Plan.
Exhibit C -- Items in Need of Repair as of the Commencement
Date of this Lease.
Exhibit D -- Landlords Work and Tenants Work
Exhibit E -- Landlords Financial Assistance to Tenant
Exhibit F -- Addresses for Mailing of Notices
Exhibit G -- Tenants Insurance Policies
Exhibit H -- Common Costs
Exhibit I -- Addendum
Exhibit J -- Floor Plan
61
<PAGE>
LEASE AGREEMENT
This agreement, made this 1st day of July 1996, is by and between Lewis
Road Associates, a Pennsylvania General Partnership, with principal office
located at 649 N. Lewis Road, Limerick, Pennsylvania 19468, hereinafter referred
to as "Landlord".
-AND-
Sedona - Geoservices, Inc., 649 N. Lewis Road, Suite #220, Limerick, PA 19468
1. Demised Premises. Landlord hereby demises and lets unto Tenant, and
Tenant hereby leases from Landlord, in accordance with all of the provisions of
this Lease, a certain portion of interior space in the Specht Building, situated
at Montgomery County, Pennsylvania (hereinafter referred to as the "Professional
Building"). The Office Center property is more fully bounded and described in
accordance with Exhibit "A" attached hereto and incorporated herein. The
interior space in the Office Center
62
<PAGE>
leased by the Tenant measures Ave. _____ feet in front and _____ feet in depth
for a leased area totaling 2793 square feet, said area being bounded by vertical
walls or partitions with the interior surfaces thereof constituting a part of
the leased space (sometimes referred to as the "leased space" or "demised
premises"). The demised premises consists of a portion of the second floor of
the building marked "Professional Building" on the site plan of the Office
Center attached hereto and incorporated herein as Exhibit "B". Landlord grants
to Tenant the right to the non-exclusive use in common with others entitled to
the use of the same all such automobile parking areas, driveways, courts,
corridors, footways, loading facilities and other facilities as may be
designated by Landlord from time to time as more fully set forth herein and
subject to the terms and conditions of this Lease and to such reasonable rules
and regulations for the use thereof as may be prescribed from time to time by
the Landlord in accordance with Paragraph 23(a) of this Lease.
2. Use of Premises. Tenant is leasing the space, and will use and manage
the space exclusively, for operating and conducting the following business:
Professional Office for Engineering Services. No other use of this space shall
be permitted during the term of this Lease without the prior written consent of
Landlord. Such consent shall not be unreasonably withheld by
2
<PAGE>
Landlord, but consideration of such matters as the mix of businesses occupying
the Office Center and potential dilution of trade with other Tenants shall not
be construed as an unreasonable basis for Landlord's decision.
3. Name or Designation of Business. The name under which Tenant will
conduct business in the demised premises shall be Sedona, GeoServices, Inc.,
and will remain such and will not be changed during the term of this Lease
without the prior written consent of Landlord, which consent will not be
withheld unreasonably, provided that, in allowed changes, Tenant shall be solely
responsible for any costs and expenses in changing the name as it is featured in
any signs of the Office Center or in any business advertising as may be done or
provided by Landlord.
4. Term of Lease.
(a) The term of this Lease shall be Thirty Nine (39) months, Plus One
Twenty Four (24) Month Option, plus the period, if any, between the
"commencement date" (as established by Paragraph 4(b) of this Lease) if it falls
on a day other than the first day of a month and the first day of the first full
calendar month in the original term.
(b) The "original term" of this Lease (hereinafter defined) and Tenant's
obligation to pay rent and occupy the demised premises in accordance with the
terms hereof shall
3
<PAGE>
commence on the earlier of the following dates (such earlier date being herein
called the "Commencement Date"): (i) the date Tenant initially opens the
demised premises for business or (2) the date which is forty-five (45) days
after the Landlord or the Landlord's supervisory architect notifies Tenant in
writing that the Landlord's Work (as defined in Paragraph 8(b)) specified in
Exhibit "D" has been substantially completed and the demised premises are ready
for the installation of Tenants fixtures, notwithstanding that insubstantial
details of construction or mechanical adjustment remain to be performed, the
noncompletion of which would not materially interfere with Tenant's use of the
premises. Tenant's entry into the demised premises shall be deemed an
acknowledgment that Tenant has accepted Landlord's Work as being completed to
Tenant's satisfaction. Within ten (10) days after the date of such notice
Tenant shall enter the demised premises and promptly install its trade fixtures
and equipment and shall diligently pursue such installation to timely completion
and will open the demised premises for business not later than the expiration of
such forty-five (45) day period referred to above.
(c) At any time after the commencement date of the term of the Lease the
parties shall complete Paragraph 4(f) of this lease and/or shall execute and
deliver to each other, at the option of Landlord, either an instrument in
recordable form or
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A Letter agreement prepared by Landlord, wherein Tenant shall: (1) certify that
the Lease is in full force and effect and (2) certify the commencement and
termination dates of the original term of this Lease.
(d) This lease and the tenancy here by created shall cease and terminate at
the end of the term hereof without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives notice to
vacate the premises and agrees that Landlord shall be entitled to the benefit of
all provisions of law respecting the summary recovery of possession of premises
from a Tenant holding over to the same extent as if statutory notice had been
given.
(e) The period commencing on the date hereof and terminating on the date
immediately prior to the commencement date is herein referred to as the "initial
term", and the period from the commencement date to the stated expiration date
(and all extensions or renewals thereof) or earlier termination of this lease is
herein referred to as the "original term." For the purposes of this Lease the
words "the term of this Lease" and "the term hereof" shall be deemed to mean the
initial term and the original term of this Lease and all extensions or renewals
thereof. During the initial term, all of the provisions, covenants and
conditions hereof shall be in full force and
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effect, but Tenants monetary obligations hereunder shall be abated until the
original term has commenced.
(f) The commencement date of this Lease is July 1, 1996 and the original
term of this Lease shall expire at 12:01 A.M. On September 30, 1999.
5. Base rent.
(a) Tenant shall pay to Landlord as rent for the demised premises those
amounts set forth herein as base rent and those amounts hereinafter mentioned as
items of additional rent. The total base rent for the Thirty Nine (39) month
period shall be Ninety Three Thousand, Seven Hundred and Twenty One and 05/100
($93,721.05). The base rent for the demised premises shall vary through the
term of this Lease in accordance with the following schedule:
Monthly
Period Base Rent Installment
------ --------- -----------
7/1/96 - 9/31/96 Free Utilities Only
10/1/96 - 9/30/97 $26,018.73 $2,890.97
10/1/97 - 9/30/98 $33,851.16 $2,890.97
10/1/98 - 9/30/99 $33,851.16 $2,890.97
Option Period Base Rent Monthly $
------------- --------- ---------
10/1/99 - 9/30/2000 $35,247.66 $2,937.30
10/1/2000 - 10/30/2001 $35,247.66 $2,937.30
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Tenant shall pay base rent to Landlord, without prior demand by Landlord,
in monthly installments of the amounts set forth on the foregoing schedule,
which monthly installments shall be due and payable, in advance, on or before
the first day of each and every calendar month throughout the term of this Lease
beginning on July 1, 1996, and continuing until such time as the base rent
obligation of Tenant shall be paid in full. In the event that the commencement
date of this Lease shall be a day other than the first day of the first full
calendar month in the term hereof, Tenant's first payment of base rent shall be
prorated for the fractional month between the commencement date and the first
day of the first full calendar month in the term hereof on a per diem basis
(calculated on a thirty (30) day month) and the same shall be paid to the
Landlord on or before the commencement date.
(b) Security Deposit. Tenant contemporaneously with the execution of this
Lease, has deposited with Landlord the sum of Two Thousand Eight Hundred and
Ninety 97/100 Dollars ($2,890.97) receipt of which is hereby acknowledged by
Landlord, which deposit is now the property of the Landlord and is to be held as
security for the faithful performance by Tenant of all of the terms, covenants
and conditions of this Lease by said Tenant to be kept and performed during the
term hereof, subject to Paragraph 10 of this Lease. Notwithstanding Section
10(c) interest will acrue at $233.33 on Security Deposit to be returned at the
time of Lease Termination.
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6. Tenant's proportionate Share of Taxes, Operating Expenses and Insurances
as Additional Rent. During each calendar year of the term of this Lease,
prorated for any period less than a year, Tenant shall pay to Landlord as
additional rent Tenant's proportionate share of all real estate taxes, operating
expenses and the cost of Landlord's policies of insurance. Tenant's
proportionate share shall be .07% which is the percentage of the Office Center's
total rentable area of 38,138 s.f. which Tenant leases pursuant hereto.
(a) "Taxes" as used in this Paragraph 6 shall include all real estate taxes
attributable to improvements now or hereafter made to the Office Center or any
part thereof or attributable to the present or future installation in the Office
Center or any part thereof of fixtures, machinery or equipment, all real estate
taxes, assessments, water and sewer (if provided by a municipal agency and not
separately metered among the various Tenants of the Office Center) and other
governmental impositions and charges of every kind and nature whatsoever,
non-recurring as well as recurring. Special or extraordinary as well as
ordinary, foreseen and unforeseen and each and every installment thereof which
shall during the term hereof be levied, assessed or imposed upon or become due
and payable and which arise in connection with the use, occupancy or possession
of, or any interest in, the Office Center or any part thereof, or any land, and
buildings
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and other improvements situate upon the land, as is described in Exhibit "A"
hereto, or any portion thereof. The fiscal year of any taxing authority shall be
deemed to correspond to the calendar year in which such fiscal year ends.
(b) "Operating Expenses" as used in this Paragraph 6 shall include all
expenses, costs, disbursements and expenditures of every kind and nature which
Landlord shall pay or become obligated to pay because of or in connection with
the management, operation, maintenance and repair of the Office Center, The
Land, and Buildings and other improvements situate upon the land described in
Exhibit "A" hereto ("the premises"), except leasing commissions, payment of
principal and interest on any mortgages upon the premises and those expenditures
which are generally referred to as "Capital Expenditures" where the amount paid
or incurred by the Landlord was for new buildings or for permanent improvements
or betterments made for the purpose of increasing the value of or substantially
extending the useful life of the premises. However, expenditures for
improvements which are required by law or generally expensed or regarded as
deferred expenses or intended by Landlord to result in savings or deductions in
operating expenses shall be included in operating expenses over such period of
time as Landlord shall deem appropriate. Operating expenses shall also include
but not be limited to, all costs and expenses whether expended or incurred for
operating, repairing, lighting, cleaning, painting and maintaining (including,
but not limited to preventive maintenance) such common
9
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areas of the Office Center, removing snow, ice, rubbish and debris, inspecting,
the rental of sweepers, trucks and other equipment; depreciation (over a period
not exceeding sixty (60) months) of machinery and equipment and other non real
estate assets used in the operation and maintenance of the Office Center; the
repair of paving, roofs, curbs, walkways, landscaping, drainage, on-site water
lines, sanitary sewer lines, heating, ventilating and air conditioning systems,
floors, floor coverings, canopies, skylights, fountains, electrical lines and
other equipment serving the property on which the Office Center or any part
thereof is constructed; the rental of music programs, services and loud speaker
systems including the furnishing of electricity therefore; all costs incurred by
Landlord in compliance with any environmental or other similar laws, rules,
regulations, guidelines or orders; the cost of all on-site personnel required to
supervise and accomplish the foregoing and an administrative charge equal to
twenty percent (20%) of the total of all such operating expenses. Operating
expenses shall not include depreciation other than specifically referred to
herein. In the event of any dispute as to whether an item represents an expense
or a capital item, Landlord's accounting practices shall be determinative and
binding on the parties.
(c) The cost of Landlord's policies of insurance shall include the cost of
the premiums on Landlord's policy of fire insurance with extended coverage
insuring portions of the Office Center and may also include, at Landlord's
option, the
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<PAGE>
costs of the premiums for the following types of Landlord insurances applicable
to the Office Center: liability insurance covering personal injury, deaths and
property damage with a personal injury endorsement covering false arrest,
detention or imprisonment, malicious prosecution, libel and slander, and
wrongful entry or eviction, worker's compensation insurance, plate glass
insurance, contractual liability insurance and fidelity bonds. Tenant shall have
no right, title, claim or interest in any insurance policy purchased and
maintained by the Landlord pursuant hereto, nor in any proceeds thereof.
(d) At the time of the commencement of this Lease, and annually within
sixty (60) days after the end of each calendar year during the term hereof,
Landlord shall deliver to Tenant a statement certified by Landlord and showing
in reasonable detail real estate taxes, operating expenses, and the cost of
Landlord's insurances as herein defined, for the calendar year last ending. Each
such statement shall be sufficient proof of the accuracy thereof. Together with
such statement Landlord shall submit to Tenant its good faith estimate of the
real estate taxes, operating expenses and Landlord's insurance costs for the
then current calendar year. Tenant shall pay to Landlord, without prior demand
by Landlord, at and with each monthly installment of Tenants base rent such sum
as shall represent one-twelfth (1/12) of Tenant's proportionate share of
Landlord's good faith estimate of the real estate taxes, operating
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<PAGE>
expenses and Landlord's insurance costs for the then current year: provided,
however, that such payments of additional rent by Tenant shall continue to be
determined by reference to the estimate last provided by Landlord, until such
time as Landlord has provided Tenant with Landlord's good faith estimate of such
expenses for the then current year. For the calendar year ending December 31,
1996 all costs, expenses, disbursements and expenditures for real estate taxes,
operating expenses, and Landlord's policies of insurance shall be based on the
real estate taxes, operating expenses and Landlord's insurance costs for the
calendar year ending December 31, 1995 as provided by the Landlord.
(e) If the commencement date hereof shall not be the first day of a
calendar month, Tenant's payment of its proportionate share of real estate
taxes, operating expenses, and Landlord's insurance costs for the fractional
month between the commencement date and the first day of the first full calendar
month in the term shall be prorated on a per diem basis (calculated on a thirty
(30) day month) and shall be paid together with the first payment of Base Rent
on or before the commencement date.
(f) At the time that Landlord provides Tenant with the certified statement
of actual real estate taxes and operating expenses for the calendar year last
ending, Landlord shall also provide Tenant with a statement showing the amount,
if any, by which Tenants payments of estimated real estate taxes, operating
expenses and insurance costs for such previous calendar year, or prorated
portion thereof,
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<PAGE>
have either exceeding or fallen short of Tenants proportionate share of the
actual real estate taxes, operating expenses and insurance costs. (i) In the
event that such statement evidences an underpayment by Tenant, Tenant shall pay
to Landlord the amount representing the deficiency within thirty (30) days of
Tenant's receipt of Landlord's statement. (2) In the event that such statement
evidences an overpayment by Tenant, and the Tenant is not in default hereunder
or otherwise indebted to the Landlord, the amount representing the excess shall
be allowed as a credit against the next payment(s) of prorated expenses due from
Tenant to Landlord for the then current calendar year. (3) The amount of the
Tenant's excess payments shall be refunded to Tenant when Tenant has fully
performed all of its obligations under this lease, is not indebted to Landlord
and has vacated in accordance with the provisions of this lease. (4) In the
event that Tenant is indebted to the Landlord for any reason whatsoever,
Landlord may deduct such amount owed from such overpayment.
7. Utilities.
(a) Tenant shall be solely responsible for arranging and paying for all
sewer rents and water (if provided by a municipality and separately metered and
billed), electric, gas and telephone service to the demised premises. Landlord
shall whenever possible provide separate metering devices to measure water,
sewer, electric and gas service to the demised premises.
13
<PAGE>
Should Landlord elect or be required to supply or make available any utility
used or consumed at the demised premises, Tenant agrees to purchase and pay for
same, as additional rent, every month in the term hereof as billed by the
Landlord, such payment to be made to the Landlord within ten (10) days of
Tenant's receipt of Landlord's bill.
(b) In the event the local authority, municipality, utility or other body
collects for the water and/or sewage or sanitary service and/or consumption, as
aforesaid, Tenant covenants and agrees to pay the water and sewer rent charge
(both minimum and otherwise) and any other tax, rent, levy, connection fee or
meter or other charge which now or hereafter is assessed, imposed or may become
a lien upon the demised premises, or the realty of which they are a part,
pursuant to law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, or the water or sewage connection
or system. In the event Landlord shall have advanced on Tenant's behalf any of
the aforesaid sums, Tenant shall reimburse Landlord on demand for Tenant's share
of such costs plus administrative costs of Landlord in a sum equal to twenty
percent (20%) of such sums as additional rent.
(c) Landlord may, after thirty (30) days' notice to Tenant, cease to
furnish any one or more of the utility services to the demised premises, without
any responsibility to Tenant
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<PAGE>
except to connect Tenants distribution facilities therefore with another source
for the utility service so discontinued.
(d) In no event shall Landlord be liable to Tenant in damages or otherwise
for any interruption, curtailment or suspension of any of the foregoing utility
services in the event of a default by Tenant under this Lease or due to repairs,
action of public authority, strikes, acts of God or public enemy, or any other
cause, whether similar or dissimilar to the aforesaid.
8. Condition of Premises: Construction: Alterations and Improvements.
(a) Tenant acknowledges and agrees that the demised premises is, as of the
commencement of the original term of this Lease, in good condition and state of
repair except for such items, if any, as may be specifically set forth on an
Exhibit "C" attached hereto and signed by all parties to this Lease Agreement.
Unless the Landlord specifically acknowledges in writing as its duty the
obligation to change, repair or improve the items referred to on said Exhibit
"C", Landlord shall have no duty or obligation to make such changes, repairs or
improvements and the Tenant shall accept and occupy the demised premises in its
then current condition and thereafter Tenant shall be solely liable for any
injury to person or property which may be related or attributed thereto in whole
or in part. The items referred to on Exhibit "C" which are not to be or in fact
are not changed,
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<PAGE>
repaired or improved by the Landlord shall be used, in part, by the parties
hereto, at the termination of this Lease in calculating the amount, if any, of
the security deposit to be returned by Landlord to Tenant pursuant to Paragraph
10 hereof.
(b) Construction by Landlord. Landlord, at its cost and expense, shall
construct, remodel, improve or alter the demised premises incorporating in such
construction all items of work, if any, described as Landlords Work in Exhibit
"D" attached hereto and made a part hereof (all such items are hereinafter
collectively referred to as "Landlord's work"). Landlord shall have the
exclusive right to determine the architectural design and the structural,
mechanical and other standard details and specifications of Landlord's work,
including, but not limited to, the type of materials and the manufacturer and
supplier thereof.
(c) Tenant's Improvements.
1. Within ten (10) days after receipt of the written notice referred to in
paragraph 4(b) hereof, Tenant shall, at its sole cost and expense commence and
thereafter promptly complete all the work and other requirements imposed upon
Tenant in Exhibit "D", (all such items being herein referred to as "Tenant's
Work"). In the event Landlord, or any person on Tenants behalf, shall perform
any work or install any equipment included in Tenant's Work, Tenant, within
fifteen (15) days after
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receipt of a bill therefor, shall pay to Landlord, as additional rent, a sum
equal to all sums paid and costs incurred by Landlord in performing such work
and/or installing such equipment plus administrative costs of Landlord in a sum
equal to twenty percent (20%) of such sums and/or costs. Notwithstanding
anything contained in this Paragraph 8(c) to the contrary, Landlord shall not be
responsible or liable to Tenant, its agents, servants, employees, licensees, or
contractors, or their respective agents, servants, employees, licensees or
contractors, for any loss or damage to the property of such party occurring
prior to or subsequent to the commencement date of the term unless and solely to
the extent caused by the negligence of Landlord, or its agents, servants, or
employees.
2. All labor and materials necessary to the modification or completion of
the Tenant's Work shall be provided at the sole expense of Tenant.
Notwithstanding the foregoing, however, Tenant shall not do any work in or about
the demised premises or make any alterations or additions thereto without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. All of Tenant's Work to which Landlord consents shall be performed and
installed at Tenant's sole cost and expense, in accordance with plans and
specifications prepared at Tenant's expense and approved by Landlord, and by
contractors, subcontractors and suppliers of labor and material who shall in
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all instances be subject to Landlord's approval. During the continuance of
Tenant's Work, Tenant shall maintain such insurance as Landlord may reasonably
require for the benefit of Landlord and such other parties as Landlord may
designate. Tenant shall, upon request of the Landlord, furnish a guarantee by
each of its prime contractors and materialmen for the benefit of Landlord,
Tenant and such other parties as Landlord may designate that all of Tenant's
Work, materials and equipment shall be in accordance with the plans and
specifications as approved by Landlord and that such contractors or materialmen
will, upon notice from Landlord or Tenant, promptly correct and repair at their
own cost and expense any deficiency, defect, fault or imperfection of materials,
equipment or workmanship which appears within one (1) year after completion of
such work or installation.
3. None of the Tenant's Work at the demised premises shall be done by
anyone other than Landlord except after the filing of a waiver of the right to
file any lien therefor (commonly known as a "mechanics' and/or materialmen's
lien") with Landlord, and the recording of the same, at Tenant's expense, with
the Court of Common Pleas of Montgomery County, Pennsylvania, so as to
constitute an effective waiver by anyone having a right to file such a lien. If
any such lien is filed, Tenant shall, at its expense, cause such lien to be
discharged or satisfied within 15 days after the filing thereof.
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4. None of the Tenant's Work shall be performed or installed except by
workmen and mechanics working in harmony with and not interfering with labor
employed by Landlord, Landlord's mechanics or their contractors or by any other
tenants of the building or their contractors. Any violation hereof shall permit
Landlord to withdraw its prior consent to or permission for any such work or
installation.
5. Any alterations, improvements or additions made by Tenant shall remain
upon the demised premises at the expiration or earlier termination of this Lease
and shall become the property of Landlord unless, prior to such termination,
Landlord shall have given Tenant written notice to remove the same, in which
event Tenant shall remove such items as Landlord has designated in such notice
and shall restore the demised premises to the same good order and condition in
which they were at the time of delivery of possession to Tenant, normal wear and
tear excepted. Should Tenant fail to do so, Landlord may do so and Tenant shall
immediately upon presentment of a bill therefor by Landlord, pay to Landlord as
additional rent the cost and expense thereof plus administrative costs of
Landlord in a sum equal to twenty percent (20%) of such sums and/or costs as
additional rent.
6. Upon the termination of this Lease, items such as desks, chairs, tables,
counters, shelves, trade equipment and
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other normally easily removable items may be removed by Tenant. With any damage
or injury to the demised premises resulting from such removal being repaired at
Tenant's expense. Tenant shall promptly restore the premises to their original
order and condition upon removal of such items. No such items shall be removed
without the prior written consent of the Landlord if Tenant shall then be in
default pursuant to the terms of this Lease.
7. All other fixtures installed by Tenant in the demised premises, such as
lighting and plumbing fixtures, air-conditioning and heating equipment, built-in
cabinets, display cases, shelving, desks and sinks and the like, shall not be
removed without the prior written consent of the Landlord. At the termination of
this Lease, all of such fixtures shall automatically become Landlord's property
and shall remain upon and be surrendered with the demised premises as part
thereof and without the payment of any further consideration by Landlord.
9. Landlord's Financial Assistance to Tenant. Landlord may, at its sole
option and discretion, choose to provide assistance to Tenant with respect to
the financing of Tenant's Work described in Paragraph 8 hereof. In the event
that Landlord shall provide such financial assistance to Tenant, the terms of
any such loan or other financial arrangement between Landlord and Tenant shall
be set forth in a document to be attached hereto and
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incorporated herein as an Exhibit "E" to this Lease. Notwithstanding the time
when such loan or other financial arrangement may be entered into between
Landlord and Tenant, any and all sums as shall become due from Tenant to
Landlord pursuant to the terms thereof shall be deemed and conclusively presumed
to be additional rent and subject to all provisions of this Lease respecting
rent, and Landlord shall have upon default in payment thereof, in addition to
all remedies provided for in the documents concerning such loan or other
financial arrangement, all remedies herein provided for breach of Tenant's
obligations respecting payment of rent. Notwithstanding any contrary term or
provision set forth in Exhibit "E" or the current status of Tenant's payments to
Landlord under this Paragraph 9, any and all balances due Landlord pursuant to
such loan or other financial arrangement shall be deemed to have been matured
and accelerated with the entire remaining balance thereof immediately due and
owing to Landlord in the event of the expiration or sooner termination of this
Lease for any reason whatsoever.
10. Security Deposit.
(a) Landlord acknowledges receipt from Tenant of the sum set forth in
Paragraph 5(b) of this Lease, the same to be held as security for the payment of
any rent and all other sums of money payable by Tenant under this Lease and for
the faithful performance of all covenants and agreements of Tenant hereunder.
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no part of the security deposit may be used by Tenant toward the payment of any
obligation of Tenant hereunder without the prior written consent of Landlord.
Landlord shall have the right at any time to apply any part of said security
deposit to cure any default of Tenant hereunder or to compensate Landlord for
any loss or damage suffered by reason of Tenant's default; and Tenant shall,
upon demand by Landlord, restore said security to the original sum deposited.
(b) Tenant hereby waives the benefit of any provision of law requiring such
security deposit to be held in escrow and/or in trust, and such security deposit
shall be deemed to be the property of Landlord and may be commingled with
Landlord's other funds.
(c) Landlord shall, within sixty (60) days following the expiration or
sooner termination of this Lease without Tenant default, return to Tenant the
unused balance of the security deposit, without interest, which remains to
Tenants credit, provided that Tenant has given to Landlord prior to the time
such refund shall become due, in a writing requiring Landlord's acknowledgement
of receipt, an address to which such refund may be sent to Tenant. In the event
that Tenant shall have failed to provide Landlord with such address in the form
mentioned within forty-five (45) days following the expiration or sooner
termination of this Lease, any refund otherwise due Tenant shall
22
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be deemed and conclusively presumed to have been forfeited to Landlord, and
Landlord shall have no further liability of any nature whatsoever to Tenant with
respect thereto and Tenant hereby affirmatively and knowingly waives any right,
title, claim or interest therein and waives its right to thereafter bring any
proceeding in any Court for the return or recovery thereof from the Landlord.
(d) Landlord may deliver the security deposit to any purchaser of
Landlord's interest in the demised premises, in the event that such interest be
sold, and thereupon Landlord shall be discharged from any further liability with
respect to such security deposit, and Tenant agrees to look solely to such
purchaser for the return of such security deposit.
11. Common Areas. All areas, spaces, facilities, equipment, and signs, to
the extent made available by Landlord for the common and joint use and benefit
of Landlord, Tenant and other Tenants and occupants of the Office Center, and
their respective employees, agents, subtenants, concessioners, licensees,
customers and other invitees, are collectively referred to herein as "Common
Areas". If and to the extent made available by Landlord, Common Areas shall
include, but shall not be limited to the sidewalks, parking areas, access roads
and drives, driveways, parking decks, bridges, landscaped areas, truck
serviceways, tunnels, loading docks, open and enclosed
23
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pedestrian walkways, corridors, courts, stairs, ramps, comfort and first aid
stations, public washrooms, community hall or auditorium, parcel pick-up
stations, utility lines and utility rooms. All Common Areas in or about the
Office Center shall be subject to the exclusive control of Landlord. Landlord
shall at its expense (subject to reimbursement as set forth in Paragraph 6(b) of
this Lease) operate, manage, equip, police, light, surface and maintain the
Common Areas all in such manner as Landlord, in its sole discretion, may from
time to time determine and Landlord shall have the sole right and exclusive
authority to empty and discharge all personnel with respect thereto. Landlord
hereby expressly reserves the right from time to time to construct, maintain and
operate lighting and other facilities, equipment and signs on all of the Common
Areas; to police and maintain security for the Common Areas; to use and allow
others to use the Common Areas for any purpose; to change the size, area, level,
location and arrangement of the Common Areas; to build multi-story and/or
subterranean parking facilities; to regulate parking by Tenants and other
occupants of the Office Center and their respective employees, agents,
subtenants, concessioners and licensees; to enforce parking charges (by
operation of meters, or otherwise) with appropriate provisions for parking
ticket validation for Tenants; to close temporarily all or any portion of the
Common Areas for the purpose of making
24
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repairs, changes or alterations thereto or performing necessary maintenance in
connection with any emergency, in connection with closings resulting from
adverse weather conditions or for any other purpose whatsoever, whether such
purpose is similar or dissimilar to the foregoing; to discourage non-customer
parking; to establish, modify and enforce reasonable rules and regulations with
respect to the Common Areas and the use to be made thereof. For the term of this
Lease, Tenant is hereby given a license in common with all others to whom
Landlord has or may hereafter grant rights to use, the Common Areas as they may
from time to time exist; provided, however, that if such license shall at any
time be revoked, in whole or in part, or if the size, area, level, location or
arrangement of such Common Areas or the type of facilities at any time forming a
part thereof shall be changed, altered, rearranged or diminished, Landlord shall
not be subject to any liability therefor, nor shall Tenant be entitled to any
compensation or diminution or abatement of rent therefor, nor shall such
alteration, rearrangement, revocation, change or diminution of such Common Areas
be deemed a constructive or actual eviction or otherwise be grounds for
terminating or modifying this Lease. In order to establish that the Office
Center or any portion thereof is and will continue to remain private property
and to prevent a dedication thereof or the accrual of any rights to any person
or to the public thereon,
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Landlord hereby reserves the unrestricted right, in Landlord's sole discretion,
to close all or any portion of the Common Areas to such extent as, in the
opinion of the Landlord's counsel, may be legally sufficient to prevent such
dedication thereof or accrual of any rights to any person or the public thereon;
provided, however, Landlord reserves the right at any time and from time to time
to dedicate to public use part or all of the ring roads, access roads, drives
and utility lines, together with all easements required to effectuate such
dedications. As it may see fit.
12. Cleaning of demised premises. Tenant shall, during the term of this
Lease, be solely responsible for the interior cleaning of the demised premises,
including window cleaning both interior and exterior. In the event that Tenant
shall fail to perform such cleanup, or in the event that Tenant and Landlord
shall enter into an arrangement whereby such cleaning is provided by Landlord,
the cost and expense thereof, plus administrative costs of Landlord in a sum
equal to twenty percent (20%) of such sums and/or costs, shall be paid by Tenant
within ten (10) days of Tenant's receipt of Landlord's billing therefor, and
such cost and expense shall constitute an item of additional rent.
13. Heating and Air conditioning, Plumbing & Electrical service. Landlord
shall keep in operation heating and air conditioning apparatus for the purpose
of supplying heat and air
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conditioning to the demised premises during such times of the year as the same
shall be necessary and at such temperatures as will prevent the freezing or
bursting of pipes. Without liability or responsibility to Tenant and without
diminution of o??????, deduction from rent, Landlord may from time to time, with
adequate notice to Tenant, suspend operation of the heating, air conditioning,
plumbing and electrical systems, or any service required to be rendered to
Tenant under this Lease, when such suspension shall become necessary in
Landlord's judgment for repairs, alterations or improvements thereto or by
reason of strike, accident, emergency of any other cause beyond Landlord's
control.
14. Indemnification, Waiver of Claim and Subrogation.
(a) Tenant shall indemnify and save Landlord harmless from any and all
liabilities, obligations, damages, judgments, fines, penalties, claims, costs,
charges and expenses, (including but not limited to counsel fees and
disbursements), which may be imposed upon or incurred by or asserted against
Landlord by reason of (1) personal injury, death or damage to property or
business arising from, related to, or in connection with the occupancy of the
demised premises; or, (2) occasioned wholly or in part by act or omission of
Tenant, its contractors, subcontractors, subtenants, licensees or concessioners
or its or their respective agents, servants or employees regardless of where the
same has occurred. Tenant shall not, however, be liable
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for nor shall it indemnify and save Landlord harmless from any and all
liabilities, etc., for damages or injuries occasioned by the negligence or
willful acts of Landlord or its agents, servants, or employees, unless such
damage or injury arises from perils against which Tenant is required by this
Lease to insure. Tenant shall also pay all costs, expenses and reasonable
attorney's fees that may be expended or incurred by Landlord in successfully
enforcing the covenants and agreements of this Lease.
(b) Unless, and then solely to the extent such damage is caused by the
negligent acts or omission of Landlord, its agents, servants and employees,
neither Landlord nor Landlord's agents, servants and employees shall be liable
for, and Tenant, in consideration of Landlord's execution of this Lease, hereby
expressly releases Landlord and Landlord's agents, servants and employees from,
any and all claims for injury, death or damage to persons or loss of or damage
to property (including disappearance or theft of property and loss or
interruption of business) sustained by Tenant or by any person claiming through
Tenant or sustained by any other person, resulting from any fire, accident,
occurrence or condition in or upon the demised premises, the Office Center, the
land, or any streets, sidewalks or other areas abutting or adjacent to the land
or Office Center including but not limited to such claims for damage
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resulting from (1) any defect in or failure of plumbing, heating or
air-conditioning equipment, electric wiring or installation thereof, water
pipes, stairs, railings or walks; (2) any equipment or appurtenances being out
of repair; (3) the bursting, leaking or running of any tank, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon or around the land,
buildings or demised premises; (4) the backing up of any sewer pipe or
downspout; (5) the escape of steam or hot water; (6) water, snow or ice being
upon or coming through the roof or any other place upon or near the demised
premises or the building of which the same is a part or otherwise; (7) the
falling or any fixture, plaster or stucco: (8) broken glass; (9) any act or
omission of other Tenants or other occupants of the Office Center or adjoining
or contiguous property or buildings; (10) the exercise of any rights by
Landlord under this Lease; (11) any act or omission of Landlord, its agents,
servants and employees, whether occurring on, prior to, or subsequent to the
commencement date of this Lease, unless said act or omission shall constitute a
willful breach of law; and, (12) any act or omission of parties other than
Landlord, its employees or agents. The foregoing waiver and reLease is intended
by Landlord and Tenant to be absolute, unconditional and without exception and
to supersede any specific repair obligation which may be imposed upon Landlord
pursuant to any other Paragraph of this Lease.
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(c) Landlord and Tenant hereby reLease each other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
covered by any insurance then in force, even if such loss or damage shall have
been caused by the fault or negligence of the other party or anyone for whom
such party may be responsible provided, however, that this release shall be
applicable and in force and effect only with respect to any loss or damage
occurring during such time as the policy or policies of insurance covering said
loss shall contain a clause or endorsement to the effect that this release shall
not adversely affect or impair said insurance or prejudice the right of the
insured to recover thereunder. Landlord and Tenant each agree to attempt to
procure such a clause or endorsement, provided no additional charge is made
therefor. If such clause or endorsement can be obtained only upon payment of an
additional charge, then the party benefiting from the clause or endorsement
shall pay such additional charge upon demand or shall be deemed to have agreed
that the party obtaining the insurance coverage shall not be further obliged to
obtain such clause or endorsement.
15. Insurance.
(a) Tenant will keep in force in companies licensed to do business in the
Commonwealth of Pennsylvania at Tenant's
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expense at all times during the term of this Lease and during such other times
as Tenant occupies the demised premises or any part thereof:
1. Comprehensive general liability insurance with respect to the demised
premises, the sidewalks, if any, abutting and adjoining the demised premises,
and the business operated by Tenant and any subtenants, licensees and
concessioners of Tenant in or from the demised premises with minimum limits of
Five Hundred Thousand Dollars ($500,000.00) on account of bodily injuries to or
death of one person. And One Million Dollars ($1,000,000.00). If the nature of
Tenant's operation is such as to place any or all of its employees under the
coverage of local workmen's compensation or similar statutes, Tenant shall also
keep in force, at its own expense, workmen's compensation or similar insurance
affording statutory coverage and containing statutory limits. Such liability
insurance shall, in addition, extend to any liability of Tenant arising out of
the indemnities provided in Paragraphs 14(a) and (b) hereof.
2. Fire insurance, with standard broad form extended coverage endorsement
covering (1) all of Tenants stock
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in trade, trade fixtures, furniture, furnishings and such equipment as is not
affixed to the demised premises, and (2) of at least eighty percent (80%) of
their collective insurable value, without co-insurance.
(b) Upon request, Tenant will deposit with Landlord policies of insurance
required by the provisions of Paragraph 15(a) or certificates thereof, together
with satisfactory evidence of the payment of the required premium or premiums
thereof to be attached hereto and incorporated herein as Exhibit "G". The
insurance required hereby may be maintained by means of a policy or policies of
blanket insurance so long as the provisions of this Paragraph are fully
satisfied.
(c) All policies of insurance required to be carried by Tenant shall
provide that the policy shall not be subject to cancellation, termination or
change except after ten (10) days prior written notice to Landlord and the
policies referred to in Paragraph 15(a) shall name Landlord as a named insured
as its interest may appear. In addition, such policies of insurance shall
contain a provision substantially as follows: "It is understood and agreed that
the insurance afforded by this policy or policies for more than one named
insured shall not operate
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to increase the limits of the companies' liability, but otherwise shall not
operate to limit or void the coverage of any one named insured as respects
claims against the same named insured by any other named insured or the
employees of such other named insured."
(d) If for any reason whatsoever Tenant fails to provide and keep in force
any or all of the insurance policies set forth in Paragraph 15(a) hereof, then
in such event Tenant shall indemnify and hold Landlord harmless against any loss
which would have been covered by such insurance.
16. No Partnership. Landlord and Tenant shall not under any circumstances
be deemed to be partners or joint ventures, either as between each other or as
to any third parties, with respect to any activity conducted upon the demised
premises or any goods or services provided by anyone upon the demised premises.
17. Eminent Domain.
(a) Tenant hereby waives as to Landlord and the condemning authority any
loss or damage or claim therefor resulting from the exercise of the power of
eminent domain condemnation or expropriation by any government or other party
exercising the same, or deed given in lieu thereof, whether such loss or damage
results from condemnation of part or all of the demised premises or any portion
of the land or building, except
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that Tenant may claim against the condemning authority any damages for loss of
good will, machinery and moving expenses payable to Tenants under the
Pennsylvania Eminent Domain Code of 1964, as amended, but in no event shall
Tenant make any claim against Landlord or the condemning authority or any party
having an interest in the land or building for the value of the unexpired term
of this Lease or for any other item which, if paid to Tenant, will result in the
diminution or reduction in the award to the Landlord for the land and building.
(b) In the event that the whole or substantially all of the demised
premises shall be taken as a result of the exercise of the power of eminent
domain, this Lease shall terminate as of the date on which possession of the
demised premises is taken by the condemning authority, rent shall be apportioned
as of said date and Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired term of this Lease.
(c) If only a part of the demised premises shall be so taken and the taking
or conveyance is not extensive enough to render the demised premises unsuitable
for the business of Tenant, then this Lease shall not be terminated but shall
remain in full force and effect except that the rent shall be abated in
proportion to the demised premises so taken, as of such date.
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(d) If, (1) more than one-third (1/3) of the floor area of the buildings of
which the demised premises are a part or more than one-third (1/3) of the Common
Areas shall be so taken or conveyed or, (2) any part of the parking area in the
Office Center is so taken or conveyed and as a result of such partial taking or
conveyance the size, layout or location of the remaining parking facilities will
violate the requirements of the applicable zoning or similar law (or any
permitted variance or exception thereto) then in any or all such events,
notwithstanding the fact that the demised premises are not so taken or conveyed,
Landlord shall have the right and power, at its option to be exercised by
written notice to Tenant, to terminate this Lease effective either the date
title vests in the condemning authority or the date Landlord is required to
deliver possession of the part so taken or conveyed; provided, however, in the
event of a taking or conveyance as described in clause 2 of this Paragraph 17(c)
if Landlord shall take immediate steps towards eliminating such violation, this
Lease shall be unaffected and shall remain in full force and effect. In any
event, Tenant shall have no claim against Landlord or the condemning authority
for the value of any unexpired term of this Lease.
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18. Destruction of Demised Premises.
(a) If the demised premises shall be damaged by fire or other casualty
covered by Landlord's policies of fire and broad form extended coverage
insurance but are not thereby rendered untenantable in whole or in part, subject
to the limitations hereafter set forth, Landlord, at its own expense, shall
cause such damage to be repaired in an expeditious and timely manner, and the
rent shall not be abated. If by reason of such occurrence, the demised premises
shall be rendered untenantable in whole or in part, subject to the limitations
hereafter set forth, Landlord, at its own expense, shall cause the damage to be
repaired and the Base Rent shall be abated proportionately as to the portion of
the demised premises rendered untenantable until the completion of Landlord's
repairs thereto. If the demised premises shall be damaged or destroyed by a fire
or casualty not covered by Landlord's policies of fire and broad form extended
coverage insurance and the Landlord, at its option, decides not to repair and
restore the demised premises, Landlord shall have the right, to be exercised by
notice in writing delivered to Tenant within thirty (30) days from and after the
occurrence of such damage or destruction, to cancel and terminate this Lease.
Either party shall have the right, to be exercised by notice in writing,
delivered to the other within thirty (30) days from and after any occurrence
which renders the demised premises wholly untenantable
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to cancel this Lease, and if said destruction of the premises occurs within the
last three (3) years of the term of this Lease, said cancellation to take effect
thirty (30) days from and after the receipt of such notice by the other party,
and in such event this Lease and the tenancy hereby created shall cease as of
the aforesaid date (except that such cancellation shall not affect the
obligations of the parties which have accrued theretofore and remain unpaid),
the rent to be adjusted as of such date; provided, however, that if Landlord
shall commence repairs or reconstruction of the destroyed premises during the
period prior to the cancellation date, the tenancy shall remain in effect and
said notice of cancellation shall be considered void. In no event shall Landlord
be obligated to expend for any repairs or reconstruction pursuant to this
Paragraph 18 an amount in excess of the insurance proceeds recovered by it and
allocable to the damage to the demised premises after deduction therefrom of
Landlord's reasonable expenses in obtaining such proceeds and any amounts
required to be paid to Landlord's mortgagee.
(b) If the Landlord is required to repair or reconstruct the leased
premises pursuant to the provisions of Paragraph 18(a), its obligation shall be
limited to the building shell and other construction to be performed by Landlord
pursuant to the Landlord's Work provision of Exhibit "D" hereof, which work
Landlord shall commence and complete within a reasonable time. Tenant shall
submit to Landlord for Landlord's approval detailed plans
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and specifications for all other work not required to be done by Landlord and
upon approval of such plans and specifications and, within fifteen (15) days
after the Tenant has been notified that the Landlord has completed its work on
the premises, Tenant shall re-enter the demised premises and thereafter
diligently pursue to completion such work at Tenant's expense and thereafter
commence doing business all in accordance with the provisions of this Lease.
Landlord shall not be liable for delays occasioned by cause, so long as Landlord
shall proceed in good faith.
(c) Notwithstanding anything set forth herein to the contrary, Tenant alone
shall be responsible for all repairs and replacements of damage and/or
destruction of the demised premises necessitated by burglary or attempted
burglary, or by any other illegal or forcible entry into the demised premises.
(d) Tenant covenants that it will give notice to Landlord of any accident
or damage whether such damage is caused by insured or uninsured casualty,
occurring in, on or about the demised premises within seventy-two (72) hours
after Tenant has knowledge of the occurrence of such accident or damage. If
Tenant breaches its covenant set forth in this Paragraph 18(d), Landlord, in
addition to all other rights and remedies under this Lease, at law or in equity
shall, at its option, be relieved of any of its obligations under Paragraph 18.
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(e) In the event that fifty percent (50%) or more of the total rentable
area of the Office Center shall be damaged or destroyed by fire or other
casualty, notwithstanding that the demised premises may be unaffected by such
fire or other cause, either party shall have the right, to be exercised by
notice in writing delivered to the other within thirty (30) days after said
occurrence, to cancel and terminate this Lease. Upon the giving of such notice,
the term of this Lease shall expire by lapse of time upon the fifteenth (15th)
day after such notice is given and Tenant shall vacate the demised premises and
surrender the same to Landlord.
19. Security of Demised Premises. It is expressly agreed by and between
Landlord and Tenant that Landlord shall have no responsibility whatsoever
relative to providing security to the leased space beyond Landlord's obligation
to provide doors with locking mechanisms at the commencement of the Lease term.
Upon notice from tenant, and within a reasonable period of time after Landlord's
receipt of such notice, Landlord shall repair or replace such locking mechanisms
where the same shall become nonfunctional through no fault or neglect of Tenant,
or of Tenant's agents, servants, employees or business invitees. Landlord shall
throughout the term of this Lease have keys which permit it to enter upon the
demised premises at any time.
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20. Fire Exits. Tenant shall at all times refrain from obstructing IN ANY
MANNER WHATSOVER any doors to the demised space which shall be deemed or
considered to be fire exits by the Pennsylvania Department of Labor and
Industry.
21. Tenants Affirmative Covenants. Tenant covenants and agrees that Tenant
shall:
(a) Pay the rent and all sums due under this Lease without notice or demand
on the days and times and at the places that the same are payable without
abatement, deduction or set-off;
(b) Keep the demised premises and all corridors and loading areas
immediately adjoining the demised premises clean and in good order and repair,
reasonable wear and tear and damage by any casualty not occurring through act or
negligence of Tenant or Tenant's agents, employees or business invitees
excepted, and on demand, pay Landlord, as additional rent, the cost of repair or
restoration of the demised premises or the building or any part thereof damaged
in whole or in part by the act or negligence of Tenant or Tenant's agents,
employees or business invitees;
(c) Peaceably deliver up and surrender possession of the demised premises
at the expiration or sooner possession of this Lease, in the same condition in
which Tenant has agreed to keep said premises during the continuance of this
Lease, broom-clean, and at such time without demand or delay deliver to
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Landlord all keys for the demised premises, and upon failure to deliver
possession as aforesaid to pay to Landlord, at Landlord's option, an amount as
liquidated damages which shall be computed by applying, for the period Tenant
remains in possession after expiration or sooner termination of this Lease,
twice the highest monthly rental rate provided under this Lease;
(d) Promptly correct any violation and comply with all laws, ordinances,
notices, permits, statements of occupancy, requirements, orders, regulations and
recommendations now or hereafter in effect, of whatever nature, of all federal,
state, county, municipal and other authorities and of the Board of Fire
Underwriters and any insurance organizations, associations or companies, with
respect to Tenants conduct or use of the demised premises and, on demand, pay to
Landlord as additional rent, any and all increases in premiums on insurance
policies now or hereafter carried by Landlord covering the demised premises or
the land or buildings which are caused in any way by Tenant's occupancy or
breach of any of the provisions of this Lease;
(e) Use every reasonable precaution against fire or other casualty,
including furnishings and maintaining in the demised premises fire extinguishers
of the type, size and quantity required by local codes;
(f) Give to Landlord prompt written notice of any accident, fire, casualty
or damage occurring on or to the demised
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premises, and of any defects in an apparatus in the demised premises which is
supplied by Landlord;
(g) Within ten (10) days after request therefor by Landlord, deliver to
Landlord in recordable form a certificate addressed to such person as Landlord
may designate certifying (if such be the case) that this Lease is in full force
and effect and that there are no alleged defaults by Landlord or set-offs by
Tenant hereunder (or stating those claimed by Tenant) and the date to which rent
is paid:
(h) Close all windows, lock all doors and turn out all lights (except
security lights) in the demised premises before leaving the premises unoccupied:
(i) Cause all occupants of the demised premises to conduct themselves in
such manner as shall not be deemed improper or objectionable by Landlord:
(j) Operate and/or advertise the business operated at or from the demised
premises only under the name set forth in Paragraph 3 of this Lease, unless and
until the use of another name is permitted in writing by the Landlord:
(k) Warehouse, store and/or stock in the demised premises only such goods,
wares and merchandise as Tenant uses in the conduct of its business and/or
intends to offer for sale at retail in, at or from the demised premises;
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(l) Replace promptly with glass of a like kind and quality any plate glass
or window glass of the demised premises which may become cracked or broken; and,
(m) Remove all refuse and keep the same in odor-proof, rat proof containers
within the interior of the demised premises shielded from the view of the
general public until removed therefrom and placed in such storage and/or hauling
facilities or containers as Landlord shall from time to time designate and place
about the Office Center. If Landlord provides facilities or containers for the
collection, storage and/or hauling of refuse it shall cause all such refuse in
said facilities or containers to be removed periodically from the Office Center
site and the cost of the same shall be deemed a component of operating expenses
pursuant to Paragraph 6(b) of this Lease and shall be prorated among Tenants. If
Landlord declines to offer collection, storage and/or hauling containers and
declines to contract for the removal of refuse from the Office Center, all of
Tenant's refuse shall be removed periodically by such person or company as
Tenant, subject to Landlord's approval, shall select.
22. Tenant's Negative Covenants. Tenant covenants and agrees that it shall
not, without the prior written consent of Landlord, do or permit its agents,
employees or invitees to do any of the following:
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(a) Occupy the demised premises in any manner or for any purpose except as
permitted in this Lease;
(b) Assign, mortgage or pledge this Lease or underlet or sublease the
demised premises or any part thereof, or permit any other person, firm or
corporation to occupy the demised premises or any part thereof; without the
written approval of Landlord which will not be unreasonably withheld.
(c) Make any alterations, improvements or additions to the demised premises
except as permitted and as provided in Paragraph 8 hereof;
(d) Use or operate any machinery that, in Landlord's opinion, is harmful to
the building or disturbing to tenants occupying other parts thereof;
(e) Place any weights in any portion of the buildings beyond the safe
carrying capacity of the structure;
(f) Remove, attempt to remove or manifest, in Landlord's opinion, an
intention to remove Tenant's goods or property from the demised premises, other
than in the ordinary course of business, without having first paid Landlord all
rent which may become due during the entire term of this Lease;
(g) Vacate or desert the demised premises during the term of this Lease, or
permit the same to be empty and unoccupied for a period of seven (7) or more
consecutive days;
(h) Permit any odor, noise, sound or vibration which may, in Landlord's
opinion, in any way tend to impair the use of
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any part of the Office Center or interfere with the business or occupancy of any
other tenant, or make or permit any disturbance of any kind in the buildings, or
interfere in any way with other tenants or those having business in the
buildings, or allow any occupant of the demised premises to conduct himself in a
manner which Landlord deems improper or objectionable;
(i) Execute or deliver any financing or security agreement which might be
considered to create a lien upon the demised premises or the Office Center;
(j) Obstruct any sidewalks, halls, passageways, elevators, stairways or
other Common Areas of the Office Center, or use the same for any purpose other
than ingress and egress to and from the demised premises, or use the same as a
waiting room or lounging place for Tenant or its agents, employees or invitees;
(k) Cover or obstruct any of the floors, walls, partitions, ceilings,
windows or doors which reflect or admit light into any Common Areas of the
buildings;
(l) Use or permit any of the toilet rooms, water closets, sinks or other
apparatus or systems to be used for any purpose other than those for which they
were constructed, or permit any sweepings, rubbish, rags, ashes, chemicals,
refuse or other unsuitable substances to be thrown or placed therein and the
expense of repairing any breakage, stoppage, seepage or
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damage, whether occurring on or off the demised premises, resulting from a
violation of this provision by Tenant or Tenant's employees, agents or invitees
shall be borne by tenant. All grease traps and other plumbing traps shall be
kept clean and operable by Tenant at Tenant's own expense;
(m) Bring in or remove from the buildings any heavy or bulky objects except
by experienced movers or riggers approved by Landlord or Landlord's agent, and
only after Tenant shall have notified Landlord of the weight and size of the
objects and the time, method and manner of bringing in or removing the same, or
bring in or remove from the buildings any furniture or freight except during the
hours designated by Landlord;
(n) Use or allow to be used on the demised premises any article or
substance having an offensive odor or any dangerous, explosive or
rapidly-burning matter or material of any kind;
(o) Use electricity in the demised premises in excess of the capacity of
any of the electrical apparatus in or service to the demised premises, or add to
or alter the electrical systems serving the demised premises;
(p) Use or occupy the demised premises in violation of the use regulation
permit or statement of occupancy issued for the building or in violation of any
statute, ordinance or
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requirement of any public authority, and the use permitted by this Lease shall
not be deemed a representation or guarantee by Landlord that such use is lawful
or permitted under any permit or statement of occupancy;
(q) If Tenant is a corporation, merge with another entity or liquidate or
dissolve itself:
(r) Place in, upon or under any portion of the demised premises, or in,
upon or under any portion of the Office Center:
1. Any hazardous substances (as hazardous substances is defined in Section
101(14) of the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. 9601 (14), as amended by the Superfund Amendments and
Re-authorization Act of 1986 (Pub. L. No. 99-400, 100 Stat. 1613 (1986) (SARA))
or hazardous waste or solid waste (as defined in 40 CFR 261);
2. Any hazardous waste, residual waste or solid waste, as those terms are
defined in Section 103 of the Pennsylvania Solid Waste Management Act, 35 P.S.
6018.103 and/or 25 Pa. Code 75.260 and 75.261;
3. Any polychlorinated biphenyls (PCBs) or substances containing PCBs, any
asbestos or materials containing asbestos, or any urea formaldehyde foam
insulation; or,
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4. Any underground or above-ground storage tanks;
(s) Use, generate, treat, store, dispose of, or otherwise introduce any
hazardous substance, hazardous waste, residual waste or solid waste (as defined
above), PCBs, asbestos or urea formaldehyde, into or on the demised premises, or
any portion of the Office Center, nor cause, suffer, allow, or permit anyone
else to do so, nor will Tenant dispose of any hazardous substance, hazardous
waste, residual waste or solid waste, PCBs, asbestos or urea formaldehyde on the
said property or otherwise take or omit to take any action which would violate
any applicable federal, state, municipal or other environmental law, ordinance
or regulation.
23. Rights Reserved by the Landlord. Landlord shall have and it does hereby
reserve unto itself the right, but not the affirmative obligation, to do the
following things at any time or times and from time to time in or about the
demised premises and the Office Center:
(A) Make, amend and supplement such rules and regulations from time to time
throughout the term of this Lease as in its reasonable judgment are necessary
for the safety, care and cleanliness of the demised premises, the Office Center,
the land or buildings designated on Exhibit "A" and for the preservation of good
order therein. Such rules and regulations,
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after notice to Tenant, shall be part of this Lease, unless found unreasonable
and Landlord's rights and remedies in the event Tenant shall fail to comply with
and observe such rules and regulations shall be the same as though such rules
and regulations were set forth in Paragraph 21 and/or Paragraph 22 of this
Lease;
(b) Discontinue any facility or service not expressly covenanted for
herein, as they constitute no part of the consideration for this Lease;
(c) Control and prevent access to any part of the buildings or land by all
persons whose presence in the opinion of Landlord or Landlord's employees will
be prejudicial to the safety, character, reputation or interest of the buildings
or its other tenants;
(d) Prevent access to the buildings by any person during any emergency,
invasion, mob riot, public excitement or other commotion by closing the doors or
otherwise;
(e) Prescribe the hours and the method and manner by which any merchandise,
furniture or heavy or bulky objects shall be brought in or taken out of the
buildings, and limit and prescribe the weight, size and proper position thereof;
(f) Install, place upon or affix to the roof or exterior walls of the
demised premises or the buildings any equipment, signs, displays, antennae or
other object or structure, provided it does not interfere with Tenants
occupancy;
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(g) Change the arrangement and location and regulate or eliminate the use
of all entrances, passageways, doorways, corridors and other common areas in the
Office Center, whether or not connecting with any street, sidewalks,
transportation facility or other buildings, and of all elevators, stairs,
toilets and public conveniences which are not within the demised premises,
provided that same shall not unreasonably interfere with Tenant's use of the
demised premises:
(h) Use all or any part of the roof, exterior walls and air space above the
finished ceiling of the demised premises for any purpose and to erect scaffolds,
protective barriers or other aids to construction on, around and about the
exterior of the demised premises, provided that access to the demised premises
shall not be substantially denied:
(i) Make alterations or additions to, and to build additional stories on,
and to build adjoining any buildings in the Office Center, including the
building in which the demised premises are contained, and to construct other
buildings or improvements in the Office Center which Landlord finds necessary
and/or desirable and Tenant shall have no interest of any kind whatsoever in the
said additions or additional stories or adjoining buildings. Landlord also
reserves the right to
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reduce or enlarge the area of the Office Center by excluding portons of the
ground therefrom or adding additional ground thereto from time to time and,
whether or not so reduced or enlarged, to construct double-deck, elevated or
subterranean parking facilities;
(j) If any excavation shall be made or authorized to be made upon land
adjacent to the demised premises, Tenant shall afford to the person causing or
authorized to cause such excavation a license to enter upon the demised premises
for the purpose of doing such work as Landlord shall deem necessary to preserve
the wall or the building of which the demised premises form a part from injury
or damage and to support the same by proper foundations, without any claim for
damages or indemnification against Landlord or diminution or abatement of rent;
(k) Landlord reserves the right to install heating, air-conditioning,
ventilating equipment, kiosks, fountains, benches, seating arrangements,
promotional activities, seasonal displays, temporary stores, amusement devices
and other amenities in certain portions of the Common Areas selected by Landlord
from time to time, all of which shall be done at Landlord's sole cost and
expense and without any approval and consent of Tenant. Landlord also reserves
the right to enclose any open sections of the Office Center;
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(l) Name the building and change the name, number or designation by which
the building is commonly known;
(m) At all reasonable times during the term of this Lease enter and go upon
the demised premises and every part thereof by itself or its duly authorized
agents, by a master key or by forceable entry without rendering Landlord or its
agents liable or subject to any action or prosecution therefor and without
affecting the obligations of Tenant under this Lease, for the purpose of doing
any of the following things:
1. To inspect the demised premises and to make decorations, repairs,
alterations and additions thereto and to the buildings and to run wires,
utility systems or appurtenances thereto and to take material as required
into and upon the demised premises, all as Landlord shall deem necessary or
desirable for the safety, improvement, preservation or restoration of the
buildings or the demised premises, or for the safety or convenience of the
present or future occupants thereof, provided that, except in an emergency,
reasonable notice thereof shall be given to Tenant;
2. To exhibit the demised premises to prospective Tenants, mortgages,
or purchasers and anyone else having an interest or prospective interest
therein;
3. To render any service to the building or any Tenant or occupant, or
to exercise any of the Landlords rights;
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4. To take possession of the demised premises and alter, renovate and
redecorate the same at any time within one month prior to the expiration of
this Lease (or any extension or renewal thereof) if Tenant has then removed
all or substantially all of its property therefrom.
24. Additional Rent, Late Charges, Interest And Bad Check Charges. All sums
payable by Tenant or which are at the expense of Tenant hereunder, whether or
not the same have been specifically designated as "additional rent" herein,
shall for all purposes hereunder be deemed and shall be paid by Tenant as rent
and, if not paid, Landlord shall have with respect thereto all the rights and
remedies provided for herein and by law for non-payment of rent. In addition,
Tenant shall pay as additional rent and not as a penalty, a late charge in the
amount of 10% of the outstanding delinquent balance or Fifty Dollars ($50.00),
Whichever is greater, for any payment of rent or charges not made within ten
(10) days after the due date thereof, to cover the extra expense involved in
handling delinquent payments. The late charge may be assessed only once with
respect to each delinquent payment. If any rent or charges are not paid within
thirty (30) days after the due date thereof an interest charge of fifteen
percent (15.00%) Per annum computed from the original due date thereof to the
date of actual payment shall be applicable to such delinquent rent to charges in
addition to the aforesaid late
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charge. In the event any check tendered by Tenant to Landlord is not honored on
initial presentation, Tenant shall pay Landlord the sum of Fifty Dollars
($50.00) on account of Landlord's bank charges and extra administrative expense
involved in handling such returned check.
25. Documentary Stamps as Additional Rent. In the event that any
documentary stamp tax or other local, state or federal tax is levied on the
rental, leasing or letting of the premises or is required to be paid by reason
of the execution hereof, the cost thereof shall be paid by Tenant to Landlord
within seven (7) days of Landlord's presentment of an invoice therefor.
26. Tenants Failure to Comply with Covenants Of Lease. Except for the
payment of rent, which includes base rent and all items of additional rent which
shall be paid when due without prior demand, Tenant shall perform all covenants
and agreements herein expressed on its part to be performed and will promptly
upon receipt of written notice of non-performance thereof comply with the
requirements of such notice. If Tenant does not comply with such notice to
Landlord's satisfaction within (10) days after delivery thereof (or if
compliance cannot be reasonably completed within ten days, if Tenant shall not
begin to comply within such period and thereafter proceed to completion with due
diligence), Landlord may, at its option, do or cause to be done any or all of
the things specified in such notice and, in so
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doing, Landlord shall have the right to cause its agents, employees and
contractors to enter upon the demised premises without liability to Tenant for
any loss or damage resulting therefrom; and Tenant shall pay as additional rent
any cost or expense incurred by Landlord in taking such action plus
administrative costs of Landlord in a sum ec;ual to twenty percent (20%) of such
costs and/or expense.
27. Events of Default. Each of the following shall constitute an event of
default hereunder:
(a) Tenants failure to take possession of the demised premises within ten
(10) days after receipt of notice of completion of the Landlord's work given by
Landlord to Tenant pursuant to the provisions of Paragraph 5(b) hereof;
(b) Tenants discontinuing the conduct of its business in the demised
premises;
(c) The filing of a petition by or against Tenant for adjudication as a
bankrupt or insolvent, or for reorganization or appointment of a receiver or
trustee of Tenant's property; an assignment by Tenant for the benefit of
creditors; or the taking of possession of Tenant's property by any governmental
officer or agency pursuant to statutory authority for the dissolution or
liquidation of Tenant, or if the Tenant admits in writing its inability to pay
debts generally as they become due;
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(d) Tenant's failure to pay when due (and in no event later than the
expiration of the ten (10) day grace period as herein provided for) any
installment of rent hereunder or any other sum herein required to be paid by
Tenant more than two (2) times in any period of twelve (12) consecutive months,
then notwithstanding that such failures shall have been eventually cured, any
further similar failure within such twelve (12) month period;
(e) Tenant's failure to perform any other covenant, agreement or condition
of this Lease within ten (10) days after receipt of written notice of such
failure to perform or, if the performance thereof requires more than 10 days to
complete, Tenant's failing to begin performance thereof within such ten-day
period and proceeding diligently to completion thereafter more than three (3)
times in any period of twelve (12) consecutive months, then, notwithstanding
that such failures shall have been timely or eventually cured, any further
similar failure within such twelve (12) month period;
(f) Tenant's removing, attempting to remove or manifesting an intention to
remove its goods or property from the demised premises, except in the ordinary
course of business, without having first paid Landlord all rent which may become
due for the balance of the term of this Lease:
(g) Tenant's vacating or deserting the demised premises or permitting the
same to be empty or unoccupied for a period of ten (10) or more consecutive
days;
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(h) The filing by or against any guarantor or surety of this Lease of a
petition for adjudication as a bankrupt or insolvent, or for the reorganization
or appointment of a receiver or trustee of the property of such guarantor or
surety, or the making of an assignment by such guarantor or surety for the
benefit of creditors, or the taking of possession of the property of such
guarantor or surety by any governmental officer or agency pursuant to statutory
authority for the dissolution or liquidation of such guarantor or surety;
(i) DELETED
(j) If any attachment, levy or garnishment is issued against or if an
involuntary lien is filed against any property of the Tenant, unless the Tenant
can demonstrate to the Landlord's satisfaction that he has the ability to make
the rental payments;
(k) If there shall occur any change in the financial or other condition of
the Tenant which, in the sole, good faith judgment of the Landlord, impairs the
prospects of payment or performance by such Tenant. However, if Tenant shows to
Landlord's satisfaction that he can make the rental payments, Tenant will not be
in default; and/or,
(l) If the Tenant is a corporation or partnership, such Tenant becomes
involved in a dissolution, merger, consolidation or reorganization without the
express prior consent of the Landlord.
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Listing the above does not limit Landlord's action upon default where other
or similar causes or applications exist.
28. Landlord's Rights and Remedies Upon Tenant's Default. Upon or after the
occurrence of any one or more events of default hereunder. Landlord may, at its
option:
(a) If the term of this Lease shall not have commenced, Landlord may
immediately cancel this Lease by written notice to the Tenant, or if the term
shall have commenced Landlord may serve upon Tenant a written notice that this
Lease and the term will terminate on a date to be specified therein, and in
either event, Tenant shall have ten (10) days to avoid the cancellation or
termination by payment of any sum due or by performance of any condition, term
or covenant broken;
(b) Upon the date specified in the aforesaid notice of termination this
Lease and the term hereof shall terminate and come to an end as fully and
completely as if such date were the day herein definitely fixed for the end and
expiration of this Lease and such term, and Tenant shall then quit and surrender
the demised premises to Landlord, but notwithstanding any statute, rule of law,
or decision of any Court to the contrary, Tenant shall remain liable as set
forth hereinafter;
(c) Declare the entire remaining portion of the rent, and items of
additional rent, reserved hereunder due and payable immediately, anything herein
contained to the contrary
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notwithstanding, and proceed, with or without notice, as herein provided or
otherwise, to collect the same;
(d) Reenter the premises and repossess them by force, summary proceedings,
ejectment or otherwise, and may dispossess Tenant and all other persons and
property from the premises and may have, hold and enjoy the demised premises
together with all alterations, additions or improvements and the right to
receive all rental income therefrom all without being liable to prosecution or
damages therefor. At any time after any such expiration, Landlord may relet the
demised premises or any part thereof, in the name of Landlord or otherwise, for
such term (which may be greater or less than the period which would otherwise
have constituted the balance of the term of this Lease) and on such reasonable
conditions as Landlord, in its uncontrolled discretion, may determine, and may
collect and receive the rent therefor. Landlord shall in no way be responsible
or liable for any failure to relet the demised premises or any part thereof, or
for any failure to collect any rent due upon any such reletting. No such
expiration of this Lease shall relieve Tenant of its liability and obligations
under this Lease, and such liability and obligations shall survive any such
expiration, whether or not the demised premises or any part thereof shall have
been relet, and Tenant shall pay to Landlord the rent and additional rent
required to be
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paid by Tenant up to the time of such expiration, and thereafter Tenant, until
the end of what would have been the original term of this Lease in the absence
of such expiration, shall be liable to Landlord for and shall pay to Landlord on
the days on which the rent and additional rent would have been payable under
this Lease if it were still in effect, as and for liquidated and agreed current
damages for Tenants default, the equivalent of the amount of the rent and
additional rent which would be payable under this Lease by Tenant if this Lease
were still in effect less the net proceeds of any reletting effected as set out
hereinabove, if any, after deducting all Landlord's expenses in connection with
such reletting including, without limitation, all repossession costs,
commissions, legal expenses, reasonable attorney's fees and disbursements,
repair, alteration and/or decoration costs and all other such expenses of
preparation for such reletting;
(e) Recover from Tenant, on demand, whether or not Landlord shall have
collected any monthly deficiency, as and for liquidated and agreed final damages
for Tenant's default, an amount equal to the difference between the rent and
additional rent reserved hereunder for the unexpired portion of the original
lease term and the then fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming
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due hereunder after the date of termination and the fair and reasonable rental
value of the demised premises for the period for which such installment was
payable shall be discounted to the date of termination at the rate of 4% per
annum. If the demised premises or any part thereof is relet by Landlord for the
unexpired term of this Lease or any part thereof, the amount of rent reserved
upon such reletting shall be deemed conclusively to be the fair and reasonable
rental value for the part or the whole of the demised premise so relet during
the term of the reletting. Nothing herein contained shall limit or prejudice the
right of Landlord to prove or obtain as liquidated damages by reason of such
termination an amount equal to the maximum allowed by any statute or rule of law
in effect at the time when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater, equal to or less than
the amount of the difference referred to above;
(f) In the event of a breach or a threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for;
(g) Exercise any and all other rights and remedies granted or allowed
Landlord by any existing or future statute, act of assembly or other law of this
Commonwealth in cases where
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a Landlord seeks to enforce rights arising under a Lease agreement against a
Tenant who has defaulted or otherwise breached the terms of such Lease
agreement;
(h) Exercise any and all other rights and remedies contained in this Lease,
including, but not limited to the rights and remedies provided by Paragraphs 24,
27 and 28 hereof.
29. Waivers. Tenant expressly waives:
(a) The benefit of all laws, now or hereafter in force, exempting any goods
on the demised premises, or elsewhere, from distraint, levy or sale in any legal
proceedings taken by Landlord to enforce any rights under this Lease;
(b) The benefit of all laws existing now or hereafter enacted regarding any
limitation as to the goods upon which, or the time within which, distress is to
be made after removal of goods of the Tenant or others from the demised premises
and, further, Tenant hereby relieves Landlord of the obligation of proving or
identifying the goods distrained, it being the purpose and intent of this
provision that all goods of Tenant, whether upon the demised premises or not,
shall be liable to distress for rent at any time after Tenants default under
this Lease, including particularly, but not limited to those goods removed from
the demised premises clandestinely and fraudulently;
(c) The right to issue a writ of replevin for the recovery of any goods
seized under a distress for rent or levy upon an execution for rent, damages or
otherwise;
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(d) The right to delay execution on any real estate that may be levied upon
to collect any amount which may become due under the terms and conditions of
this Lease and any right to have the same appraised, and Tenant authorized any
prothonotary or clerk of court to enter a writ of execution or other process
upon Tenant's voluntary waiver and further agrees that said real estate may be
sold on a writ of execution or other process;
(e) All rights relating to the Landlord-Tenant relationship under the law,
ordinance or statute, to the extent that they might limit Landlord's right to
cause the distrained goods to be sold, Tenant now specifically and knowingly
authorizes Landlord to sell any goods distrained for rent at a public auction
sale to be held at any time at least ten (10) days after that distraint without
appraisement and condemnation of the goods, but upon five (5) days' notice to
Tenant of the date, place and terms of sale, including Landlord's right to
purchase all or any of the property; and,
(f) the right to three (3) months' notice and/or fifteen (15) or thirty
(30) days' notice required under certain circumstances by the Landlord and
Tenant act of 1951, P.L. 69, as amended, hereby agreeing that ten (10) days'
notice shall be sufficient in either or any such case.
30. Confession of Judgment - Money. Tenant covenants and agrees that if the
rent or any charges reserved in this Lease as
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rent (including all accelerations of rent permissible under the provisions of
this Lease) shall remain unpaid ten (10) days after the same are required to
be paid, then and in that event, Landlord may cause judgment to be entered
against Tenant, and for that purpose Tenant hereby authorizes and empowers
Landlord or any Prothonotary, Clerk of Court or Attorney of any Court of Record
to appear for Tenant and to confess judgment against Tenant and agrees that
Landlord may commence an action pursuant to Pennsylvania Rules of Civil
Procedure no. 2950 et seq. for the recovery from Tenant of all rent hereunder
(including all accelerations of rent permissible under the provisions of this
Lease) and/or for all charges reserved hereunder as rent, as well as for
interest at the rate herein provided and costs and attorney's commissions, for
which authorization to confess judgment this Lease, or a true and correct copy
hereof, shall be sufficient warrant. Such judgment may be confessed against
Tenant for the amount of rent in arrears (including all accelerations of rent
permissible under the provisions of this leasse) and/or for all charges reserved
hereunder as rent as well as for interest at the rate herein provided and costs
together with an attorney's commission of 10% of the full amount of Landlord's
claim against Tenant. Neither the right to institute an action pursuant to
Pennsylvania Rules of Civil Procedure no. 2950 et seq. nor the authority to
confess judgment granted herein shall be exhausted
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by one or more exercises thereof, but successive complaints may be filed and
successive judgments may be entered for the aforementioned sums ten (10) days
or more after they become due as well as after the expiration of the original
term or any extension or renewal of this Lease. Tenant agrees that any judgment
for money obtained by the Landlord shall bear interest at the rate of fifteen
percent (15%) per annum as herein provided from the date of the entry of
judgment until such date as the same is paid any statute, Rule of Court, custom
or practice to the contrary notwithstanding.
31. Confession of Judgment - Possession of Demised Premises. Tenant
covenants and agrees that if this Lease shall be terminated (either because of
conditions broken during the original term of this Lease or any renewal or
extension thereof or when the term hereby created or any extension thereof shall
have expired) then and in that event Landlord may cause judgment in ejectment to
be entered against Tenant for possession of the demised premise, and for that
purpose Tenant hereby authorizes and empowers any Prothonotary, Clerk of Court
or Attorney of any Court of Record to appear for Tenant and to confess judgment
against Tenant in ejectment for possession of the demised premises and agrees
that Landlord may commence an action pursuant to Pennsylvania Rules of Civil
Procedure no. 2970 et seq. for the entry of an order in ejectment for the
possession of real property,
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and Tenant further agrees that a Writ of Possession pursuant thereto may issue
forthwith, for which authorization to confess judgment and for the issuance of
writs of possession pursuant thereto this Lease, or a true and correct copy
hereof, shall be sufficient warrant. Tenant further covenants and agrees that
if, for any reason whatsoever after said action shall have commenced, the action
shall be terminated and possession of the demised premises shall remain in or be
restored to Tenant, Landlord shall have the right upon any subsequent default or
defaults, or upon the termination of this Lease as above set forth, to commence
successive actions for possession of real property and to cause the entry of
successive judgments by confession in ejectment for possession of the premises
demised hereunder.
32. Conclusive Evidence of Facts in Action for Judgment by Confession. In
any procedure or action to enter Judgment by Confession for Money pursuant to
Paragraph 30 hereof, or to enter Judgment by Confession in Ejectment for
possession of real property pursuant to Paragraph 31 hereof, if Landlord shall
first cause to be filed in such action an affidavit, complaint or averment of
the facts constituting the default or occurrence or event the happening of which
authorized and empowered Landlord to cause the entry of judgment by confession,
such affidavit, complaint or averment shall be conclusive evidence of such
facts, default, occurrence, or event (and of the truth of which such
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affidavit, complaint or averment shall be sufficient evidence); and if a true
copy of this Lease be filed in such procedure or action, it shall not be
necessary to file the original as a Warrant of Attorney, any rule of court,
custom or practice to the contrary notwithstanding.
33. Release of Errors. Tenant hereby releases to Landlord and to any and
all attorneys who may appear for Tenant all errors in any procedure or action to
enter Judgment by Confession by virtue of the warrants of attorney contained in
this Lease, and all liability therefor.
34. Landlord's Right to Assign Remedies. The right to enter judgment
against Tenant by confession and to enforce all of the other provisions of this
Lease herein provided for may, at the option of any assignee of this Lease, be
exercised by any assigns of the Landlord's right, title and interest in this
Lease in his, her, its or their own name, any statute, rule of court, custom or
practice to the contrary notwithstanding.
35. Landlord's Remedies Cumulative. All of the remedies hereinbefore
given to Landlord and all rights and remedies given to it by law and equity
shall be cumulative and concurrent. No termination of this Lease or the taking
or recovering of possession of the demised premises shall deprive Landlord of
any of its remedies or actions against Tenant for rent then due or which under
the terms hereof would in the future have become due
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if there had been no termination, nor shall the bringing of any action for rent
or breach of covenant, or the resort to any other remedy herein provided for the
recovery of rent, be construed as a waiver of the right to obtain possession of
the demised premises.
36. Subordination of Lease. This Lease may, at Landlord's sole discretion
and without the consent of Tenant, be made subordinate to any lien or
encumbrance now or hereafter placed upon, or permitted to be placed upon, the
demised premises by Landlord. However, so long as Tenant is not in default under
the terms of this Lease, the mortgagees or its assigns will not disturb the
possession of the Tenant.
37. Waiver. Landlord shall have the right at all times to enforce the
covenants and conditions of this Lease in strict accordance with the terms
hereof despite any conduct, usage or custom on the part of Landlord in
refraining from so doing at any time or times and despite any contrary law,
usage or custom or any failure by Landlord to enforce its Rights at any time or
times. The subsequent acceptance by Landlord of rent due hereunder or of any or
all other monetary obligations of Tenant hereunder, whether or not denoted as
rent hereunder, shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, other than the failure
of Tenant to make the particular payment so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent. No
covenant, term or condition of this Lease shall be deemed to have been waived by
Landlord, unless such waiver be in writing and executed by Landlord.
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38. Accord and Satisfaction. No payment by Tenant or receipt by Landlord of
a lesser amount than any payment of rent or additional rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated rent or
additional rent then due and payable. Tenant agrees that Landlord shall not be
bound by any endorsement or statement on any check or any letter accompanying
any check or payment and no such endorsement, statement or letter shall be
deemed an accord and satisfaction, and Landlord or Landlord's bank may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided in this Lease, at law
or in equity.
39. Notices. All notices, requests and demands upon the respective parties
hereto shall be in writing and shall be either personally delivered with written
acknowledgement of receipt therefore or sent postage prepaid by U.S. certified
mail, return receipt requested, to the address(es) as shall be set forth on a
schedule to be attached hereto and incorporated herein as Exhibit "F". All
notices shall be deemed to have been given on the date when deposited in the
U.S. mail receptacles or, in the case of notices delivered in person to Tenant,
when so delivered.
40. Quiet Enjoyment. So long as Tenant shall pay the rents and other
charges herein provided within the respective times provided therefor, and
provided and so long as Tenant observes
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and performs all the covenants, terms and conditions on Tenant's part to be
observed and performed, Tenant shall peaceably and quietly hold and enjoy the
demised premises for the term of this Lease without hindrance or interruption by
Landlord or any other person or persons lawfully claiming by, through or under
Landlord, subject, nevertheless, to the terms and conditions of this Lease.
Landlord's liability under this Paragraph shall cease upon a conveyance by
Landlord of the premises.
41. Captions and Index. The captions and index appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of such sections, paragraphs or articles of this
Lease nor in any way affect this Lease.
42. Entire Agreement. This Lease, including the Exhibits, Addendums and
Riders, if any, is the only agreement between the parties hereto pertaining to
the demised premises and all negotiations and oral agreements acceptable to the
parties are included herein. All prior communications, negotiations,
arrangements, representations, agreements and understandings, whether oral,
written or both, between the parties hereto, and their representatives, are
merged herein and extinguished, this Lease superseding and canceling the same.
Except as herein otherwise provided, no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord or
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Tenant unless reduced to writing and executed by the party against which such
subsequent alteration, amendment, change or modification is to be enforced. If
any provisions contained in any Rider or Addendum hereto is inconsistent with
any printed provisions of this Lease, the provision contained in such Rider or
Addendum shall supersede said printed provision.
43. Recording. This Lease may not be placed on public record by Tenant, and
any such recordation by Tenant without the prior written consent of Landlord
shall, at Landlord's option, constitute a breach of this Lease by Tenant.
44. Partial Invalidity. If any provision of this Lease is held to be
invalid, the remaining provisions shall not be affected thereby but shall
continue in full force and effect. Furthermore, each covenant, agreement,
obligation and other provision contained in this Lease is and shall be deemed
and construed as a separate and independent covenant of the party bound by,
undertaking or making the same, and not dependent on any other provision of this
Lease unless expressly so provided.
45. Tenant Defined: Use of Pronoun. The term "Tenant" shall refer to each
and every person or party mentioned as a Tenant herein, be the same one or more.
If there shall be more than one Tenant. They shall be bound jointly and
severally by all the terms, covenants and agreements of this Lease, and any
notice required or permitted by the terms of this Lease may be given by
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or to any one thereof and shall have the same force and effect as if given by or
to all. The use of the neuter or the masculine singular pronoun to refer to
Landlord or Tenant may be an individual, a partnership, a corporation, a female
or a group of two or more individuals or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural number
where there is more than one Landlord or Tenant and to either corporations,
associations, partnerships or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
46. Negation of Landlord's Personal Liability. The term Landlord as used in
this Lease shall refer only to the owner for the time being of the Landlord's
estate in the demised premises or land or the building of which it is a part.
Landlord shall be and is hereby relieved of all covenants and obligations of
Landlord hereunder after the date of transfer of Landlord's estate in the land
or the demised premises or the building of which it is a part, and it shall be
construed without further agreement between the parties that the transferee has
assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder during such time as said transferee shall own or hold
Landlord's estate or interest in the land or the demised premises or the
building of which it is a part. The provisions
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of this part shall apply to each successive transfer of Landlord's interest or
estate. The liability of Landlord under this Lease shall be and is hereby
limited to Landlord's interest in the land and the demised premises and the
building of which it is a part, and no other asset of Landlord's shall be
affected by reason of any liability which Landlord may have to Tenant or to any
other person by reason of this Lease, the execution hereof or the acquisition of
Landlord's interest in the land or the buildings and, in the event Tenant
obtains a judgment against Landlord, the judgment docket shall be so noted. This
Paragraph shall inure to the benefit of Landlord's successors and assigns and
their respective principals.
47. Successors. All rights, obligations and liabilities herein given to or
imposed upon the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, trustees, receivers, legal
representatives, successors and assigns of the said parties; and if there shall
be more than one Tenant, they shall all be bound jointly and severally by the
terms, covenants and agreements herein. No rights, however, shall inure to the
benefit of any assignee, legal representative of Tenant unless the assignment to
such party has been approved by Landlord in writing as provided in Paragraph
22(b) hereof. Landlord shall have the unrestricted
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right to assign this Lease and upon any such assignment, Landlord shall
automatically be released from all liability hereunder from and after the date
of such assignment.
48. Construction. It is the intent of the parties hereto that if any term,
covenant, condition or agreement of this Lease is capable of two or more
constructions, one or more of which would render the provision void, and the
other or others of which would render the provision valid, then the provision
shall have the meaning or meanings which would render it valid. Although the
printed provisions of this Lease were drawn by Landlord, this Lease shall not be
construed for or against Landlord or Tenant but this Lease shall be interpreted
in accordance with the general tenor of the language in an effort to reach the
intended result. The laws of the Commonwealth of Pennsylvania shall govern the
validity, interpretation, performance and enforcement of this Lease.
49. Submission of Lease to Tenant. The submission by Landlord to Tenant of
this Lease shall have no binding force or effect, shall not constitute an option
for the leasing of the demised premises, nor shall the same confer any rights or
impose any obligations upon either party until the execution thereof by Landlord
and the delivery of an executed original copy executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
74
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have individually, or by their authorized representatives, as
appropriate, set their hands and seals hereto as of the day and year first above
written.
LANDLORD
BY: [CLIENT SUPPLY] 6/18/96
-------------------------
TENANT
BY:
-------------------------
Andrew E. Trolio
Sedona-GeoServices, Inc.
75
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GUARANTY
The undersigned Guarantor on behalf of himself, his successors and assigns,
unconditionally guarantees to Landlord, and its successors and assigns, complete
and punctual performance of the foregoing Lease and all its provisions, and the
provisions of all documents attached and incorporated by reference, for the term
of the Lease or in any extensions of such. Guarantor waives any right,
requirement or necessity for any notice of default under the Lease and/or that
the Landlord exhaust any right or take any action against the Tenant or any
other person or entity as any condition for enforcement of the guaranty against
Guarantor. Guarantor agrees that no assertion by Landlord of any other forms of
remedy or relief available to it under this Lease or the law generally will
diminish or otherwise interfere with separate and independent claims made
against this guaranty. Guarantor waives any defense under this guaranty stemming
from any circumstances whatsoever outside the course of this Lease and resulting
in the termination of Tenant's liability such as, but not limited to,
modification.
76
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Guarantor agrees to pay any and all expenses (including attorney's fees and
disbursements incurred by Landlord) in enforcing its rights under this guaranty.
The Guarantor will not exercise any rights which it may acquire by way of
subrogation under this guaranty, by any payment made hereunder or otherwise
until all obligations of the Tenant under the Lease have been met and all sums
due Landlord thereunder Guarantor on account of such subrogation rights at
anytime when all such obligations to the Landlord shall not have been paid in
full, such amount shall be received and held in trust by the Guarantor for the
benefit of the Landlord and shall forthwith be paid to the Landlord to be
credited and applied against the obligations of the Tenant under the Lease,
whether matured or unmatured, in accordance with the terms of the Lease.
Landlord relies upon the fact and security of this Guaranty as a
substantial inducement to execution of the foregoing Lease.
If more than one signature appears below, as Guarantor, each such
individual signing shall be jointly and severally liable for the proper
performance of this Guaranty.
77
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Signed and sealed, with intent to be legally bound hereby, this __________
day of ____________ 199 .
By: /s/ Gregory A. Dinnocenti 6/18/96
---------------------------------
Gregory A Dinnocenti - Lewis Road Associates
By: ________________________________
Andrew E. Trolio - Guarantor
Sedona-GeoServices, Inc.
78
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EXHIBIT "A"
CZOP / SPECTER, INC.
Consulting Engineers & Surveyors
1741 VALLEY FORGE ROAD - RTE. 363
P.O. BOX 669
WORCESTER. PA 19490
=====
215-584 0880
LEGAL DESCRIPTION
D & L PROFESSIONAL BUILDING
LEWIS ROAD AND D & L DRIVE
ALL THAT CERTAIN tract of land with a building and improvements situate on Lewis
Road and D & L Drive, in the Township of Limerick, County of Montgomery,
Commonwealth of Pennsylvania, bounded and described as shown on Site plan (Sheet
1 of 4) for D & L Associates by Czop/Specter, Inc., dated 8/31/87, last revised
10/23/87, as follows to wit:
BEGINNING at a point, said point being located North 46 degrees 15 minutes 00
seconds West, 614.59 feet from the intersection of the centerline of Lewis Road
(60 feet wide) and Southwest right-of-way line of:__ D & L Drive belonging to D
& L Associates; thence extending from said point of beginning South 46 degrees
15 minutes 00 seconds East 564.19 feet to a point of a curve, which point is
measured on the arc of a curve curving to the right having a radius of 15 feet
the arc distance of 23.94 feet to a point of tangency; thence from said point
along the right-of-way of Lewis Road the following three courses; 1) South 45
degrees 12 minutes 00 seconds West 120.79 feet, 2) North 44 degrees 48 minutes
00 seconds West 20 feet, 3) South 45 degrees 12 minutes 00 seconds West 64.39
feet to a point a corner of lands now or late of Harry F. Leeson; thence from
said point along lands now or late of Harry F. Leeson North 46 degrees 15
minutes 00 seconds West 555.96 feet to a point a corner of which lands now or
late of D & L Associates; thence from said point along other lands now or late
of D & L Associates North 44 degrees 10 minutes 00 seconds East 200.00 feet to
the first mentioned point and place of BEGINNING.
CONTAINING 114,215.87 square feet or 2.62 acres more or less.
79A
<PAGE>
EXHIBIT "G"
In the printed document, there appears a blueprint showing
reserved parking layout.
79B
<PAGE>
EXHIBIT "C"
Items in need of repair by the Landlord as of the commencement date of this
lease:
1. Light Fixtures - Yes/No COMMENTS:
2. Walls - Yes/No COMMENTS:
3. Door(s) - Yes/No COMMENTS:
4. Floor - Yes/No COMMENTS:
5. Ceiling - Yes/No COMMENTS:
6. Window - Yes/No COMMENTS:
7. Bathroom - Yes/No COMMENTS:
8. Other
Dated:
________________________
________________________
80
<PAGE>
ACKNOWLEDGEMENT OF REPAIRS COMPLETED TO
THE SATISFACTION OF THE PARTIES
Except as otherwise noted below, all repairs to be made by the Landlord as
set forth above, have been completed to the satisfaction of the parties, and
Tenant agrees to accept possession of the demised premises in its present
condition.
Exceptions:
Dated:
______________________ __________________
81
<PAGE>
Exhibit "D" Page 1
Schedule of "Landlord's Work" and "Tenants Work"
I. LANDLORD'S WORK.
A. Repair damaged drywall as needed.
B. Touch-up Paint as needed, where patching of drywall was performed.
C. Steam Clean Carpet Throughout.
D. Landlord's allowance to tenant will be Two Thousand Seven Hundred and
Ninety Three Dollars 00/100 (2,793.00), which does not include the above
cited items.
82
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EXHIBIT "D" Page 2
II. Tenant's work:
All other work not specifically designated as Landlord's work by Article 1
which is necessary to complete the demised premises and which is necessary for
the demised premises to be ready to open for business with the public by the
commencement date, in the manner set forth in the Lease, shall be done by Tenant
at Tenant's own cost and expense. All of the aforesaid work, all other work
which is not specifically designated as Landlord's work and all other work
Tenant may do in the demised premises at any time, is herein collectively
referred to as Tenant's work.
A. All of Tenant's Work shall be completed at Tenant's sole cost and
expense. In performing Tenant's Work, Tenant shall comply with the following
requirements:
1. In addition to, and not in lieu of the other policies of insurance
required by this Lease, at all times between the start and completion of Tenants
Work (such period is herein referred to as "Tenant's Construction Period"),
Tenant, at its own cost and expense, shall maintain in effect with a responsible
insurance company, a policy of "All Risk" Builder's Risk Insurance in the
standard form for the State where the Center is located. Said insurance shall
cover the full replacement value of work done and fixtures and equipment
installed or to be installed at the demised premises by Tenant, without
co-insurance and without any deductible clauses.
2. At all times during Tenant's Construction Period, Tenant's contractors
and subcontractors shall maintain in effect workers compensation insurance as
required by the laws of the Commonwealth of Pennsylvania.
3. Repair and/or reconstruction of all or any portion of Tenant's Work
83
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damaged or destroyed by any casualty occurring during Tenant's Construction
Period.
EXHIBIT "D" Page 3
commenced by Tenant as soon as possible after such casualty; provided that if
all or any portion of Landlord's Work is also damaged or destroyed by such
casualty, Landlord shall notify Tenant when repairs or reconstruction of
Landlord's Work is substantially completed and, within fifteen (15) days after
receipt of such notice, Tenant shall diligently pursue such repair and/or
reconstruction to completion.
4. Any approval or consent by Landlord of any or all of Tenant's criteria,
systems, plans, specifications or drawings shall neither constitute an
assumption of responsibility by Landlord for any aspect of such criteria,
systems, plans, specifications or drawings including, but not limited to, their
accuracy or efficiency nor obligate Landlord in any manner with respect to
Tenant's Work and Tenant shall be solely responsible for any deficiency in
design or construction of all portions of Tenant's Work.
5. Tenant shall obtain and pay for all necessary permits and shall pay for
all other fees required by public authorities or utility companies with respect
to Tenant's Work.
6. Tenant shall maintain the demised premises and the Common Area adjoining
the same in a clean and orderly condition during construction. Tenant shall
promptly remove all unused construction materials, equipment shipping
containers, packaging, debris and waste from the Office Center, and deposit it
in receptacles, if any, provided by Landlord or otherwise remove the
construction materials, equipment, fixtures, merchandise, shipping containers
and debris within the demised
84
<PAGE>
premises. Parking areas, sidewalks, courts, arcades, public corridors, service
corridors and the exterior of the building will be clear of Tenant's equipment,
merchandise, refuse and debris at all times.
EXHIBIT "D" Page 4
7. To the end there shall be no labor disputes which would interfere with
and construction occurring in the Office Center or the operation thereof, or any
part thereof including but not limited to, the demised premises, in performing
any Tenant's Work, Tenant agrees to use its best efforts to engage the services
of only such contractors or subcontractors as will work in harmony and without
causing any labor dispute with each other, with Landlord's employees,
contractors and subcontractors thereof, and Tenant shall require its contractors
and subcontractors to employ only such labor as will work in harmony and without
causing any labor dispute with each other, with Landlord's employees,
contractors and subcontractors and with the employees, contractors and
subcontractors of all others working in or upon the Office Center or any part
thereof. Furthermore, only those contractors and subcontractors as have been
duly licensed by the authority having jurisdiction over the appropriate
profession and which have been approved in writing by Landlord may perform any
portion of Tenant's Work for Tenant in or upon the demised premises.
8. At any time and from time to time during the performance of Tenant's
Work, Landlord, Landlord's architect and/or Landlord's general contractor may
enter upon the demised premises and inspect the work being performed by Tenant
and take such steps as they may deem necessary or desirable to assure the
protection of the
85
<PAGE>
building and/or any premises adjacent to the demised premises. In addition,
Tenant's Work shall be performed in a thoroughly first-class and workmanlike
manner, shall incorporate only new materials and shall be in good and usable
condition at the date of completion.
9. Tenant's work shall be coordinated with all work being performed
or to be
EXHIBIT "D" Page 5
performed by Landlord and other occupants of the Office Center nor interfere
with or delay the completion of any other construction within the Center, and
each such contractor and subcontractor shall comply with all procedures and
regulations prescribed by Landlord for integration of Tenant's work with that to
be performed in connection with any construction in the Office Center and in
connection with the operation of the Office Center.
10. Neither Tenant nor its contractors or subcontractors may use any space
within the Office Center (except the demised premises) for storage, handling and
moving of materials and equipment, and if Tenant or such contractors and/or
subcontractors shall use any space in the Office Center (except the demised
premises) for any of the aforesaid purposes without obtaining Landlord's prior
written approval therefore, Landlord shall have the right to terminate such use
or remove all of Tenant's and such contractor's or subcontractor's material,
equipment and other property from such space without Landlord being liable to
Tenant and/or such contractors or subcontractors and the cost of such
termination and/or removal shall be immediately paid by Tenant to Landlord. It
shall be Tenant's responsibility to cause each contractor and subcontractor to
maintain continuous protection of
86
<PAGE>
adjacent property and improvements against damage by reason of Tenant's work,
including at Landlord's request, the installation of lights, guard rails,
barricades and temporary store fronts of a design approved by Landlord, or at
Landlord's option, Tenant shall reimburse Landlord, on demand, for the cost
incurred in Landlord's installation of such items plus administrative costs of
Landlord in a sum equal to twenty percent (20%) of such sums and/or costs.
EXHIBIT "D" Page 6
III. PLANS AND SPECIFICATIONS.
In the event Tenant desires to perform any Tenant's work, prior to doing
so, Tenant shall deliver to Landlord detailed plans and specifications prepared
by Tenant's licensed architect disclosing the proposed work. Landlord shall
review such plans and specifications and advise Tenant of any changes required
by Landlord; Tenant shall promptly revise such plans to Landlord within twenty
(20) days after being advised of Landlord's changes. Landlord may require
further changes in such plans and Tenant shall similarly revise and resubmit the
same to Landlord within an additional period of twenty (20) days. Tenant shall
not commence any part of such work until such plans and specifications have been
approved in writing by Landlord.
87
<PAGE>
EXHIBIT "F"
SCHEDULE OF ADDRESSES
OF THE PARTIES
Rosedale Associates Sedona - GeoServices, Inc.
649 N. Lewis Rd. 700 Abbott Drive
Suite #200 Broomall, Pa 19008-4373
Limerick, Pa 19468 (610) 328-1040
(610) 495-5960
88
<PAGE>
EXHIBIT "H"
ESTIMATES COMMON COSTS FOR PERIOD ONE
Cost per
Square Foot
-----------
1. Real Estate Taxes $1.36
2. Annual Insurance 0.04
3. Lawn/Snow Maint. 0.20
4. Dumpsters 0.09
5. Common Area Elec. O.14
6. Janitorial 0.28
7. Water 0.04
8. Sewer 0.07
9. Plant Care 0.02
10. Elevator 0.06
11. HVAC O.10
12. Misc. Labor/Matl's 0.04
TOTAL COMMON COSTS -- $2.38/sq.ft.
89
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EXHIBIT I
ADDENDUM (Part I)
1. Lessor is aware that the Tenant may or may not expand in the future.
Lessor is also aware that several Tenants within the building may be desirous of
downsizing. Landlord will work with all Tenants involved in accommodating
Sedona, GeoServices, Inc. with their expansion requirements.
90
<PAGE>
Addendum (Part II)
1. Sedona Geoservices, Inc. has hereby been given permission by Specht
Realty, to utilize the Specht Realty Training Room, located on the Second Floor,
on an "as need" basis. Tenant agrees that a minimum of five (5) days' notice
will be given to Specht Realty to schedule such use for this room. Tenant agrees
to pay for a full day use, irregardless of actual hours that they will be
occupying the space each day.
Tenant understands that Specht Realty is not able to offer availability of
this room on Tuesdays, at the present time, due to prescheduled seminars
throughout the year. Tenant agrees to abide by the advance notice schedule that
will be coordinated directly between Mr. David Specht and Mr. Andrew Trolio (or
representative for Mr. Trolio). The daily Rental Rate for the Training Room will
be Forty Eight Dollars and 26/100 ($48.26). This Rental Rate was calculated as
follows:
Training Room Size = 25' X 41' = 1,025 s.f.
1,025 X 1.07% Common Factor = 1,097
$16.00 = Rental rate with utilities X 1,097 = $17,568 per year for room
52 Weeks/year X 7 days per week = 364 work days per year
$17,568 divided by 364 days = $48.26 rental rate per day
Sedona, GeoServices, Inc. will make payment directly to Specht Realty for said
rental on a monthly basis.
91
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ADDENDUM TO LEASE AGREEMENT
December 9, 1996
Whereas: Sedona - GeoServices. Inc. ("Tenant") entered into a Lease
Agreement with Lewis Road Associates, a Pennsylvania Partnership,
("Landlord"), dated July 1st, 1996.
Whereas: The existing Lease Agreement comprises 2.793 square feet in the
office building situated at 649 N. Lewis Road, Limerick, PA. which
is labeled suite #220
Whereas: The Tenant is desirous of leasing additional office space in the
building on the southwest corner of the second floor comprising
3,734 square feet labeled suite #210.
Whereas: Since the Tenant will be occupying space currently leased by the
Metropolitan Life Insurance Company, Tenant will be leasing said
space at a rate more favorable than current market rates or a
combined base rate and common area expenses of $29,922.50 per year
or $2,493.54 per month for the first twelve (12) months of the
lease term commencing on January 15th, 1997 and ending on January
14, 1998.
Whereas: The second full year lease term will be at $15.00 per square foot,
which includes both Base Rate and Common Area Expenses, and when
multiplied by the 3,734 square feet of space will yield an annual
rental rate of $56,010 or a monthly rate of $4,667.50.
Therefore: Intending to be legally bound, Tenant and Landlord agree to the
above terms and conditions. All rights contained in the Lease
Agreement will apply to this Addendum and its related space.
The Brokerage Commission for the first year of the lease of
$1,795.35 will be the responsibility of the Landlord.
The Landlord is including a $1.00 per square foot fitout allowance
to the Tenant of $3,734.00.
<PAGE>
Addendum to Lease
December 9, 1996
Page Two
- - ------------------------------------- -------------------------------------
Witness Landlord
Gregory A. Dinnocenti
- - ------------------------------------- -------------------------------------
Witness Tenant
Andrew E. Trolio
Sedona GeoServices, Inc.
<PAGE>
ADDENDUM II TO LEASE AGREEMENT
January 7, 1997
January 7, 1997
Mr. Peter E. Delle Donne
Sr. V.P. Sedona GeoServices, Inc.
649 N. Lewis Rd.
Suite #220
Limerick, Pa. 19468
Dear Peter:
As per our telephone conversation on Tuesday, December 31, 1996, I have
provided a breakdown of renovation costs for you for the old Metropolitan Life
Insurance space as follows:
Items to be paid for directly by Tenant:
Electrical -
No items specified
Carpeting - $2,892.00 (Rev.'d 1/7/97)
1.) Replace carpet in end office.
2.) Replace worn carpets in all hallways.
3.) Replace carpet in bay area.
New Paint -(work 90% completed) $2,190.00
1.) Repaint walls as per walkthrough.
2.) Repaint walls to cover dark blue
wallpaper in corner executive office/
conference room.
General Construction - $1,500.00
New Cabinetry - $ 230.00
1.) Install cabinets with doors over
counter area.
<PAGE>
Addendum II to Lease
January 7, 1997
Page Two
As per this cost breakdown, you are responsible to pay for any costs
incurred over and above the allowance given to you by the Landlord ($3,734.00).
The total of these items comes to $6,812.00. The difference that you will be
directly responsible to pay for is $3,078.00.
- - ------------------------------------- -------------------------------------
Witness Landlord
Gregory A. Dinnocenti
- - ------------------------------------- -------------------------------------
Witness Tenant
Sedona GeoServices, Inc.
EMPLOYMENT AGREEMENT
This Agreement made as of this 1st day of November, 1996, by and
between Scangraphics, Inc., a Corporation of the Commonwealth of Pennsylvania
(the "Company"), and Laurence L. Osterwise (the "Employee").
WITNESSETH:
1. Employment. The Company hereby agrees to employ Employee and Employee hereby
accepts employment by the Company for the period and the terms and conditions
hereinafter set forth.
2. Capacity and Duties.
a) Employee shall be employed by the Company in the capacity of Chief
Operating Officer of Scangraphics, Inc. and President of Sedona GeoServices,
Inc. (a Subsidiary) and Employee shall have such authority and shall perform
such key executive duties and responsibilities as may from time-to-time
reasonably be specified by the Chief Executive Officer of the Company with
respect to the Company and its affiliates. It is the present expectation of the
parties that Employee will be re-elected during the entire term of this
Agreement to serve as Chief Operating Officer of Scangraphics, Inc. and
President of Sedona GeoServices, Inc., and Employee agrees to serve in such
capacities without any compensation in addition to that herein provided.
Employee acknowledges that neither the Company nor its Board of Directors is
legally obligated to elect or re-elect Employee as Chief Operating Officer of
Scangraphics, Inc. and President of Sedona GeoServices, Inc.
1
<PAGE>
b) During the term of this Agreement, Employee shall devote all of his
time, in exercising his best efforts to the performance of his duties hereunder.
c) Notwithstanding the foregoing, Employee shall be entitled to have
investments in other enterprises provided, however, that he shall not have any
investments or financial interest in any business enterprise which conducts
business activities competitive with any business activities conducted by the
Company now or at any time during the term of the Employee's employment
hereunder (other than an investment of no more than 5% of any class of equity
securities of a company the securities of which are traded on a national
securities exchange). However, in the event the Company enters into a new field
in which the Employee has previously invested, the Employee agrees to disclose
his investment, if said investment exceeds 5% of equity of the company in which
the Employee has invested. If the Employee is so requested by the Board of
Directors of the Company, the Employee shall divest himself of the said
investment within one year after said request.
3. Compensation. Employee's compensation shall be as reflected in Exhibit 1.
4. Expenses. Employee is authorized to incur reasonable expenses for promoting
the business of the Company and in carrying out his duties hereunder, including
without limitation, reasonable expenses for automobile, travel and similar
items. The Company shall reimburse Employee for all such ordinary and necessary
expenses upon the presentation by Employee from time-to-time of an itemized
account of such expenditures. Employee shall present an itemized account of
expenditures not less frequently than monthly.
2
<PAGE>
5. Term of Agreement; Separation.
a) The term of this Employment Agreement, shall be Three (3) years and
Two (2) months commencing on the date hereof, and thereafter shall automatically
continue from year-to-year at an agreed upon salary (not less than $250,000)
unless and until either party shall give notice to the other at least twelve
(12) months prior to the end of the original, or the then current renewal term.
b) The Company may terminate this Employment Agreement for cause,
defined as follows:
1) Deliberate disclosure of Company secrets for consideration; or
2) Conviction of Employee of a felony involving moral turpitude, or of
any other law which may reasonably be deemed to cause a detrimental effect
upon the Company as a result of mutual association. If the Company
separates the Employee for cause, the Company will have no further
liability or obligation except to pay the Employee earned and unpaid
compensation.
c) The Company may separate the Employee; a) without cause, or
b) should the Employee die or become disabled such that the Employee has been
unable to perform any duties hereunder for ninety (90) days during any year of
this Employment Agreement or for any period of sixty (60) consecutive days. In
the event of such separation. the severance package described in Exhibit 1,
Section 5 applies.
3
<PAGE>
d) In the event, at any time during the initial term of this Employment
Agreement, or any extension thereof, Employee shall be involuntarily removed as
Chief Operating Officer of Scangraphics, Inc. and/or President of Sedona
GeoServices, Inc., then Employee may terminate this Employment Agreement and
receive severance in accordance with Exhibit 1, Section 5.
e) In the event of change of control of the Company, Employee may elect
to terminate his employment in which event he shall receive the severance
package described in Exhibit 1, Section 5. For these purposes, change of control
includes the following: Sale of a majority of the outstanding shares or assets
of the Company, Change in composition of more than 50% of the Board of Directors
as presently constituted, or should Andrew E. Trolio cease as Chairman of the
Board and Chief Executive Officer (unless Employee becomes CEO).
6) Restrictions on Competition. Employee covenants and agrees that: (a) during
the initial term and any renewal terms of his employment hereunder and, (b) if,
but only if, this Employment Agreement is terminated by the Employee (as
hereinafter defined) during the initial term, or any renewal term hereof, for a
period on one (1) year after termination of his employment hereunder, he shall
not, directly or indirectly, engage in any business activities within the limits
of the Continental United States, the same as, or in competition with, business
activities carried on by the Company during the period of the Employee's
employment by the Company, or in the definitive planning stages at the time of
termination of Employee's employment.
4
<PAGE>
The term "engage in" shall include, without being limited to, activities
as proprietor, partner, stockholder, principal, agent, employee or consultant.
However, nothing contained in this Paragraph shall prevent Employee from having
investments of the types permitted in Subparagraph 2(c) hereof.
These restrictions shall not apply if separation is by the Company
under Section 5c and 5d or if separation is by Employee under Section 5e of this
Employment Agreement.
7. Trade Secrets. During the term of employment under this Employment Agreement,
the Employee will have access to, and become familiar with, various trade
secrets, consisting of formulas, patterns, devices, secret inventions,
processes, compilation of information, records and specifications, which are
owned by the Company and which are regularly used in the operation of the
business of the Company.
The Employee shall not disclose any of the aforesaid trade secrets,
directly or indirectly, nor use them in any way, either during the term of this
Agreement or at any time thereafter, except as required in the course of his
employment by the Company.
All files, records, documents, drawings, specifications, equipment, and similar
items relating to the business of the Company, whether prepared by the Employee
or otherwise coming into his possession, shall remain the exclusive property of
the Company and be returned to the Company by request of the Company, provided
the same information is not available to the general public.
5
<PAGE>
8. Miscellaneous Provisions.
a) Any notices pursuant to this Agreement shall be validly given or
served if in writing and delivered personally or sent by registered or certified
mail, postage prepaid, to the following addresses:
If to Company: SCAN-GRAPHICS, Inc.
700 Abbott Drive
Broomall, PA 19008
Attn: President
If to Employee: Laurence L. Osterwise
360 Spring Mill Road
Villanova, PA 19085
or to such other addresses as either party may hereafter designate to the other
in writing.
b) Notices delivered personally shall be deemed communicated as of the
actual receipt; notices mailed shall be deemed communicated as of five (5) days
after mailing.
c) If any provision of this Agreement shall be or become illegal or
unenforceable in whole or in part for any reason whatsoever, the remaining
provisions shall nevertheless be deemed valid, binding and subsisting.
d) The waiver by either party of a breach or violation of any provision
of this Employment Agreement shall not operate or be construed as a waiver of
any subsequent breach or violation thereof.
e) This writing represents the entire Employment Agreement and
understanding of the parties with respect to the subject matter hereof; it may
not be altered or amended except by agreement in writing.
6
<PAGE>
f) The Employment Agreement has been made in and its validity,
performance and effect shall be determined in accordance with the laws of the
Commonwealth of Pennsylvania.
g) The headings of paragraphs in this Employment Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
h) This Employment Agreement supersedes any earlier Employment
Agreement and as such is the only Employment Agreement in force.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed
this Employment Agreement under seal on the day and year first above written.
SCAN-GRAPHICS, INC.
ATTEST: /s/ Victoria R. [CLIENT SUPPLY] /s/ Andrew E. Trolio
------------------------------- ------------------------
Secretary Chief Executive Officer,
President and Chairman of
the Board
EMPLOYEE:
/s/ Laurence L. Osterwise
--------------------------
Laurence L. Osterwise
7
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Scangraphics. Inc. Exhibit 1
COMPENSATION AND BENEFITS
COMPENSATION PLAN FOR Laurence L. Osterwise
POSITION: Chief Operating Officer of Scangraphics, Inc. and President of
Sedona GeoServices, Inc. a Subsidiary of Scangraphics, Inc.
1) BASE SALARY: By RESOLUTION of the Board of Directors, dated on October 31
1996 your base rate of annual remuneration was established as follows:
$180,000 through 12/31/97
$225,000 through 12/31/98
$250,000 through 12/31/99
2) INCENTIVE COMPENSATION: In addition to the Base Salary, as set forth above,
an incentive bonus plan is provided in the event certain goals or levels of
achievement are reached, as reflected herein:
BONUS (Based on income of Scangraphics, Inc. from operations exclusive
of income resulting from acquisitions and/or mergers)
o Balance of 1996 - None
o Year 1997 - 5% (5K/100K) of net to 100K or a sum of 100K, in the
event the market price of the Company's common stock attains and maintains
a minimum bid price of $8.00 per share for 22 consecutive trading days,
whichever is greater, which bonus is payable 2/15/98.
o Year 1998 and beyond - Lehman's Formula, i.e.
5% 1st Mil 4% of 2nd Mil, 3% of 3rd Mil
2% thereafter to Max. of $250,000, or a sum of 250K in the event the
price of the Company's common stock attains and maintains a minimum bid
price of $15.00 per share and $20.00 per share for 22 consecutive trading
days, whichever is greater, in the years 1998 and 1999, respectively.
3) EQUITY - OPTIONS
300,000 Options to Purchase Common Shares for a period of 5 years at
an exercise price of $3.00 (based on the bid price on 10/26/96, the date of
agreement to the basic terms of Employment), with vesting as follows:
100,000 shares - 12/31/96
100,000 shares - 12/31/97
100,000 shares - 12/31/98
1
<PAGE>
4) LONG TERM INCENTIVE PLAN: The Employee and the Company agree to move forward
with the basic understanding of the position, base salary and equity warrants as
reflected in this Employment Agreement and in addition;
Under A Gentlemen's Agreement develop a Long Term Incentive Plan following
introductions to the Company's business units and development of goals for the
company. Goal for LTI plan to be:
a) A cash incentive equal to annual bonus (i.e., $250,000/yr.) for
meeting reasonable yet aggressive targets and
b) A stock incentive equal to 2% of outstanding equity for exceeding
"HOME RUN" targets.
5) SEPARATION: It is agreed that the inability of the Employee to perform in the
areas listed below is reason for separation under Section 5c of the Employment
Agreement.
o Operations
o Financial community
o Attracting new corporate strategic partners
o Controlling costs
o Maximizing profits
In the event of separation, under Section 5c, 5d or 5e the Company will provide
a separation package as follows:
a) salary for one (1) year,
b) benefits for 1 year or until employee obtains full-time employment
with benefits,
c) prorata bonus per Section 2 above,
d) ability to exercise vested equity warrants for a period of one (1)
year, and:
e) any accrued Long Term Incentive under Section 4 above.
6) BENEFITS, As a "Full Time" Employee, Employee will be compensated bi-weekly,
and the Employee will be included in the Company's general employee benefit
programs.
Employee: For the Company:
/s/ Laurence L. Osterwise /s/ Andrew E. Trolio
- - --------------------------- ----------------------
Laurence L. Osterwise Andrew E. Trolio
President & Chief Executive Officer
Date: Date: 10/7/96
------- -------
2
<PAGE>
Scangraphics. Inc.
August 22, 1996 700 Abbott Drive o Broomall, PA 19008
(610) 328-1040 o Fax: (610) 543-6257
Internet: www.scangraphics.com
Richard L. Rex
825 North Easton Road
Doylestown, PA 18901
RE: President -- Scanner Division of Scangraphics, Inc.
Dear Dick,
By this letter I hereby offer you the position of President of the Scanner
Division of Scangraphics, Inc., subject to ratification by the Scangraphics
Board of Directors.
The following summarizes the general terms and conditions under which you will
be employed by Scangraphics:
Richard L. Rex - President of Scanner Division: Scangraphics will enter into an
Employment Agreement with you, effective September 23, 1996, which will include,
but not be limited to, the following conditions:
1) Base Salary: You will be paid a base salary of $4.807.69 biweekly,
which annualized comes to $125,000 per year. This salary shall be
subject to periodic review and increases upon approval of the
Board of Directors.
2) Cash Bonus: You will be paid a cash bonus equal to the greater of:
a) five percent (5%) of the Scanner Division's Before Tax Income
(BTI), net of Corporate charges and taxes, and with interest to be
debited and credited as appropriate, for the 1997 and 1998 fiscal
years, or b) one percent (1%) of any increases in Gross Revenues
per year of the Scanner Division over the prior year. For purposes
of calculating the 1997 bonus, the 1996 actual Scanner Division
revenues will be used as the basis. This cash bonus formula shall
be reevaluated by the Board of Directors for possible adjustment
for fiscal years beyond 1998. This cash bonus is to be paid upon
completion of audits and filing of the 10-K, which typically is
completed by the end of March of each year.
3) Medical coverage consistent with existing coverage at
Scangraphics.
4) Annuity paid by the Company that will provide for at least
$100,000 of life insurance, with the beneficiary being Richard L.
Rex or his assignee.
<PAGE>
5) A monthly auto allowance in the amount of $400.00 will be provided
for the term of the Employment Agreement.
6) Term: The initial term of the Employment Agreement shall be
through December 31, 1999, and shall thereafter be subject to
renewal on a year to year basis, with 180 day notification
requirement by either party
7) Scangraphics will issue a "Sign-On" Stock Option representing
10,000 Shares of Scangraphics Common Stock to Mr. Rex upon his
beginning employment with the Company under the Employment
Agreement, such Stock Option to be exercisable for up to five
years and have an exercise price of $2.00 per Share which was the
"Closing Bid" on the date of this letter.
8) Scangraphics will issue 51,000 Warrants to Mr. Rex, each such
Warrant providing the right to purchase one share of Scangraphics
Common Stock for up to five (5) years from the date of issuance.
The exercise price of the Warrants will be $2.00 per Share, which
was the "Closing Bid" on the date of this letter. These Warrants
will vest at the rate of one-third (17,000 Wts) per year, on Mr.
Rex's first, second and third anniversary of employment with the
Company, and shall have "piggyback" registration rights on the
next registration statement to be filed with the SEC by the
Company.
9) The Company understands that Mr. Rex currently holds a major
equity position in a privately held company, Printfold Company,
Inc., and as such will be expected to continue to exercise certain
management responsibilities.
Sincerely,
/s/ Andrew E. Trolio
------------------------
Andrew E. Trolio
President and CEO
Understood and accepted:
Richard L Rex
By: /s/ Richard L. Rex
-------------------------
9-6-96
Date:________________________
EMPLOYMENT AGREEMENT
This Employment Agreement entered into this 1st day of July, 1996, is
between Bruce D. Downing, hereinafter referred to as "Employee" and Technology
Resource Center, Inc., hereinafter referred to as the "Company" and together
hereinafter referred to as the "Parties" with certain conditions and
considerations as set forth herein.
1. Employment:
The Company is desirous of employing Employee in the position of
President and Employee is desirous of providing such services to the Company and
is generally provided for in the job descriptor of President. The Employee will
report directly to the Chief Executive Officer of the Company or his elect.
2. Compensation:
The Parties having discussed the mutual desires of each other, do agree
that a fair and equitable minimum compensation of the Employee's services are as
follows:
o Annualized base salary: $75,000, payable bi-weekly.
o Annual bonus opportunity: Maximum of $25,000 (specific terms and
conditions to be determined by the Employee and the Company after
the Employee's July 1, 1996 start date).
o Entitlement to participate fully in all available employee benefit
programs.
3. Term of Agreement; Termination:
The term of this Agreement shall be one (1) year commencing on July 1,
1996 and thereafter shall continue from year-to-year unless and until either
Party shall give notice to the other at least 90 days prior to the end of the
original or then current renewal term of his/her or its intention to terminate
at the end of said term.
Definition of Breach - It is understood that either Party may terminate
this Agreement for convenience or for breach. Termination for BREACH shall be
defined as follows:
1) Deliberate disclosure of Company secrets for consideration; or
2) Conviction, of either Party, of a felony involving moral
turpitude, or breaking of any other law which may reasonably be
deemed to cause a detrimental effect upon the other party as a
result of the mutual association of the parties.
1
<PAGE>
a) Notwithstanding the provisions of above, the Company (or the
Employee) shall have the right to terminate this Agreement, without further
liability or obligation hereunder in the event that Employee (or the Company)
has breached this Agreement in any particular.
b) The Company may additionally terminate the employment of the Employee
for convenience (as opposed to termination for breach of this Agreement as
herein defined), in the event that the Employee fails to perform in a manner
which is reasonably consistent with the above mentioned duties; or dies; or
becomes disabled such that he/she has been unable to perform any of his duties
hereunder for sixty (60) days during any year of this Agreement or for any
period of thirty (30) consecutive days; and Employee may terminate this
Agreement in the event the Company goes into Bankruptcy or Receivership.
4. Separation Caused by Acquisition, Merger:
a) In the event the Company formally announces that it is to be
acquired, merged into another entity, consolidated, and/or reorganized
(Acquired) during the life of this Agreement or any renewal term thereof and
said acquisition is approved by the necessary votes of the Board of Directors
and (if required) shareholders, and the acquirer chooses to terminate the
Employee, the Company is obligated to pay the Employee an immediate lump sum
severance payment equal to one (1) year annual salary, plus an amount equal to
any deferred compensation, plus bonus. Annualized bonus will be payable based on
the terms and conditions outlined in point 2 above.
5. Restrictions on Competition:
Employee covenants and agrees that: (a) during the initial term and any
renewal terms of his/her employment hereunder and, (b) if but only if this
Agreement is terminated by Employee (as hereinafter defined) during the initial
terms, or any renewal term hereof, for a period of one (1) year after
termination of his/her employment hereunder, he/she shall not engage in any
business activities within the Continental United States, the same as, or in
competition with business activities carried on by the Company during the period
of Employee's employment by the Company, or in the definitive planning stages at
the time of termination of Employee's employment. The term "engage in" shall
include, without being limited to, activities as proprietor, partner,
stockholder, principal, agent, employee or consultant.
For the purposes of this Paragraph, a termination of this Agreement by
Employee shall be deemed to have occurred only if Employee shall cease to be
employed by Company pursuant to; notice of election by Employee to terminate
this Agreement during the initial term or any renewal term hereof, or if Company
shall terminate this Agreement by reason of a breach of this Agreement by
Employee.
2
<PAGE>
6. Trade Secrets:
During the term of employment under this Agreement the Employee will
have access to and become familiar with various trade secrets, consisting of
formulas, patterns, devices, secret inventions, processes, compilations of
information, records, and specifications, which are owned by the Company and
which are used in the operation of the business of the Company. The Employee
shall not disclose any of the aforesaid trade secrets, directly or indirectly,
nor use them in any way, either during the term of this Agreement or at any time
thereafter, except as required in the course of his employment by the Company.
All files, records, documents, drawings, specifications, equipment, and similar
items relating to the business of the Company, whether prepared by the Employee
or otherwise coming into his/her possession, shall remain the exclusive property
of the Company.
The Employee agrees to:
1. Promptly and fully disclose to the Company any and all inventions,
discoveries and improvements made by him/her pertaining to or useful in the
business of the Company, during his/her period of employment by the Company,
said inventions, discoveries or improvements shall become and remain the
property of the Company whether or not patent applications are filed thereon;
2. Upon request and at the expense of Company, make application through
the attorneys for the Company, for Letters Patent of the United States and any
and all countries foreign thereto, on said inventions, discoveries or
improvements, and to assign and transfer all said applications, inventions,
discoveries, and improvements to the Company, or its nominee, forthwith and
without further consideration, and;
3. Upon request of the Company, execute all papers and to do all other
things that may be reasonably required in order to protect the rights of the
Company, and to vest in it, or its successors or assigns the entire right, title
and interest in and to any and all inventions, discoveries and improvements and
the applications for Letters Patent herein provided for.
7. Miscellaneous Provisions:
a) Any notices pursuant to this Agreement shall be validly given or
served if in writing and delivered personally or sent by registered or certified
mail, postage prepaid, to the following addresses:
If to Company: If to Employee:
Technology Resource Center, Inc. Bruce D. Downing
700 Abbott Drive 200 Sycamore Mills Road
Broomall, PA 19008 Media, PA 19063
Attn: Chief Executive Officer
or to such other addresses as either party may hereafter designate to the other
in writing.
3
<PAGE>
b) Notices delivered personally shall be deemed communicated as of the
actual receipt; notices mailed shall be deemed communicated as of five (5) days
after mailing.
c) If any provision of this Agreement shall be or become illegal or
unenforceable in whole or in part for any reason whatsoever, the remaining
provisions shall nevertheless be deemed valid, binding and subsisting.
d) The waiver by either Party of a breach or violation of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation thereof.
e) This writing represents the entire Agreement and understanding of the
Parties with respect to the subject matter hereof; it may not be altered or
amended except by agreement in writing signed by both Parties.
f) The Agreement has been made in and its validity, performance and
effect shall be determined in accordance with the laws of the Commonwealth of
Pennsylvania.
g) The headings of paragraphs in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its
interpretation.
h) This Agreement supersedes any earlier Employment Agreement and as
such is the only Agreement in force.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed this Agreement under seal on the day and year first above written.
TECHNOLOGY RESOURCE CENTER, INC.
ATTEST:
????? /s/ Andrew E. Trolio
- - ------------------------------ ------------------------------------
????? Chief Executive Officer and
????? Chairman of the Board
/s/ Bruce D. Downing
------------------------------------
EMPLOYMENT AGREEMENT
This Employment Agreement entered into this 15th day of March, 1996, is
between William C. Hubbard, hereinafter referred to as "Employee" and
Scangraphics, Inc., hereinafter referred to as the "Company" and together
hereinafter referred to as the "Parties" with certain conditions and
considerations as set forth herein.
1. Employment:
The Company is desirous of employing Employee in the position of
Executive Vice President and Officer for the Company and Employee is desirous of
providing such services to the Company as is generally provided for in the job
descriptor of an Executive Vice President and Officer. The Employee will report
directly to the President and Chief Executive Officer of the Company.
2. Compensation:
The Parties having discussed the mutual desires of each other, do agree
that a fair and equitable minimum compensation of the Employee's services are as
follows:
o Annualized base salary: $70,000, payable bi-weekly.
o Commission on gross corporate sales: .5% (1/2%), payable quarterly
(by the 30th day following the quarter end).
o Annualized Warrants: 50,000, vesting at the rate of 4,167 per
month for twelve (12) months. Warrant exercise price will be
determined by the closing bid price of the Company's common shares
as quoted on the NASDAQ Exchange on the day of execution of this
agreement. Warrants will be exercisable over a five (5) year
period from the date of issuance. Compete Terms and Conditions are
stated on the attached warrant certificate. EXHIBIT 1.
o Entitlement to participate fully in all available employee benefit
programs.
o Any additional bonuses and compensation that the Board of
Directors, may, in its discretion, determine.
3. Term of Agreement; Termination:
The term of this Agreement shall be one (1) year commencing on April 1,
1996 and thereafter shall continue from year-to-year unless and until either
Party shall give notice to the other at least 90 days prior to the end of the
original or then current renewal term of his/her or its intention to terminate
at the end of said term.
Definition of Breach - It is understood that either Party may terminate
this Agreement for convenience or for breach. Termination for BREACH shall be
defined as follows:
1
<PAGE>
1) Deliberate disclosure of Company secrets for consideration; or
2) Conviction, of either Party, of a felony involving moral
turpitude, or breaking of any other law which may reasonably be
deemed to cause a detrimental effect upon the other party as a
result of the mutual association of the parties.
a) Notwithstanding the provisions of above, the Company (or the
Employee) shall have the right to terminate this Agreement, without further
liability or obligation hereunder in the event that Employee (or the Company)
has breached this Agreement in any particular.
b) The Company may additionally terminate the employment of the Employee
for convenience (as opposed to termination for breach of this Agreement as
herein defined), in the event that the Employee dies. Employee may terminate
this agreement in the event the Company goes into Bankruptcy or Receivership.
c) In the event of termination for convenience, the Employee, his/her
heirs, executors or assigns shall immediately be deemed to have vested in them
the Warrants to purchase the shares, as defined in the Common Stock Purchased
Warrants Certificate attached hereto as EXHIBIT 1, of the Company's Common
Stock. In such event, the Employee may exercise his/her right to purchase any
Warrant shares at any time within the term as defined in EXHIBIT 1, regardless
of the passage of time which would otherwise be required before the Employee
could purchase those shares or any remaining part thereof.
d) In the event that Employee voluntarily terminates his/her employment
with the Company and so notifies the Company and the reason for the termination
is for reasons attributed to personal hardship (such as illness, family crisis),
which is supported by a written medical experts document and which could not be
resolved by a personal leave of absence, the Employee will be permitted to vest
in the Warrants (not yet vested) under the same terms and conditions as though
the Employee had remained employed by the Company.
4. Separation Caused by Acquisition, Merger:
a) In the event the Company formally announces that it is to be
acquired, merged into another entity, consolidated, and/or reorganized
(Acquired) during the life of this Agreement or any renewal term thereof, and
said acquisition is approved by the necessary votes of the Board of Directors
and (if required) shareholders, and the acquirer chooses to terminate the
Employee, the Company is obligated to pay the Employee an immediate lump sum
severance payment equal to one (1) year annual salary, plus an amount equal to
any deferred compensation, plus commissions, plus annualized warrants, plus any
additional bonuses and compensation, approved by the Board of Directors, if any.
Annualized commissions will be payable based on the prorata or excess of the
attached 3-year projections, EXHIBIT 2. In the event of such acquisition as
outlined above and the acquirer chooses to terminate the Employee, or fails to
renew the Agreement for at least one (1) year, the Employee shall immediately,
as of the date of final approval, be deemed to have vested in him the Warrants
to purchase the shares, as defined in EXHIBIT 1, of the Company's Common Stock.
In such event, the Employee may exercise his/her right to purchase any Warrant
shares at any time within the term as defined in EXHIBIT 1 ("exercise date")
regardless of any conditions to the contrary contained in EXHIBIT 1.
2
<PAGE>
b) Agreement to Purchase Warrants and Options. In the event of change of
control of the Company and termination of employment, the Company shall, if the
Employee so desires, purchase all outstanding warrants and options previously
granted to the Employee at a cash purchase price equal to the amount of the
aggregate "fair market value" of the shares, less the aggregate option price of
such shares. Fair market value means the average value of the consideration paid
per share to the Company Shareholders in connection with the transactions
resulting in the change of control of the Company, or the current market value
for such shares as of the date of Employee notification, whichever amount is
greater.
c) In the event of such an acquisition and the Employee is retained by
the new owner of the Company, the Employee shall immediately (as of the date of
final approval of the acquisition) be deemed to have vested in him/her the
warrants to purchase the shares, as defined in EXHIBIT 1, of the Company's
Common Stock. Unless otherwise agreed to by the Employee and the owner of the
Company, the Company shall if the Employee so desires, purchase all outstanding
warrants and options previously granted to the Employee at a cash purchase price
equal to the amount of the aggregate "fair market value" of the shares. Less the
aggregate option price of such shares. Fair market value means the average value
of the consideration paid per share to the Company Shareholders in connection
with the transactions resulting in the change of control of the Company, or the
current market value for such shares as of the date of employee notification,
whichever amount is greater.
5. Restrictions on Competition:
Employee covenants and agrees that: (a) during the initial term and any
renewal terms of his/her employment hereunder and, (b) if but only if this
Agreement is terminated by Employee (as hereinafter defined) during the initial
term, or any renewal term hereof, for a period of one (1) year after termination
of his/her employment hereunder, he/she shall not engage in any business
activities within the Continental United States, the same as, or in competition
with business activities carried on by the Company during the period of
Employee's employment by the Company, or in the definitive planning stages at
the time of termination of Employee's employment. The term "engage in" shall
include, without being limited to, activities as proprietor, partner,
stockholder, principal, agent, employee or consultant.
For the purposes of this Paragraph, a termination of this Agreement by
Employee shall be deemed to have occurred only if Employee shall cease to be
employed by Company pursuant to; notice of election by Employee to terminate
this Agreement during the initial term or any renewal term hereof, or if Company
shall terminate this Agreement by reason of a breach of this Agreement by
Employee.
3
<PAGE>
6. Trade Secrets:
During the term of employment under this Agreement the Employee will
have access to and become familiar with various trade secrets, consisting of
formulas, patterns, devices, secret inventions, processes, compilations of
information, records, and specifications, which are owned by the Company and
which are used in the operation of the business of the Company. The Employee
shall not disclose any of the aforesaid trade secrets, directly or indirectly,
nor use them in any way, either during the term of this Agreement or at any time
thereafter, except as required in the course of his employment by the Company.
All files, records, documents, drawings, specifications, equipment, and similar
items relating to the business of the Company, whether prepared by the Employee
or otherwise coming into his/her possession, shall remain the exclusive property
of the Company
The Employee agrees to:
1. Promptly and fully disclose to Employer any and all inventions,
discoveries and improvements made by him/her pertaining to or useful in the
business of Employer, during his/her period of employment by the Employer, said
inventions, discoveries or improvements shall become and remain the property of
the Employer whether or not patent applications are filed thereon;
2. Upon request and at the expense of Employer, make application
through the attorneys for the Employer, for Letters Patent of the United States
and any and all countries foreign thereto, on said inventions, discoveries or
improvements, and to assign and transfer all said applications, inventions,
discoveries, and improvements to the Employer, or its nominee, forthwith and
without further consideration; and;
3. Upon request of the Employer, execute all papers and to do all other
things that may be reasonably required in order to protect the rights of the
Employer, and to vest in it, or its successors or assigns the entire right,
title and interest in and to any and all inventions, discoveries and
improvements and the applications for Letters Patent herein provided for.
7. Miscellaneous Provisions:
a) Any notices pursuant to this Agreement shall be validly given or
served if in writing and delivered personally or sent by registered or certified
mail, postage prepaid, to the following addresses
If to Company: If to Employee:
SCANGRAPHICS, Inc William C. Hubbard
700 Abbott Drive 1707 Hilliard Court
Broomall, PA 19008 Maple Glen, PA 19002
Attn: President
or to such other addresses as either party may hereafter designate to the other
in writing.
4
<PAGE>
b) Notices delivered personally shall be deemed communicated as of the
actual receipt; notices mailed shall be deemed communicated as of five (5) days
after mailing.
c) If any provision of this Agreement shall be or become illegal or
unenforceable in whole or in part for any reason whatsoever, the remaining
provisions shall nevertheless be deemed valid, binding and subsisting.
d) The waiver by either Party of a breach or violation of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation thereof.
e) This writing represents the entire Agreement and understanding of the
Parties with respect to the subject matter hereof; it may not be altered or
amended except by agreement in writing signed by both parties.
f) The Agreement has been made in and its validity, performance and
effect shall be determined in accordance with the laws of the Commonwealth of
Pennsylvania.
g) The headings of paragraphs in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its
interpretation.
h) This Agreement supersedes any earlier Employment Agreement and as
such is the only Agreement in force.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed this Agreement under seal on the day and year first above written.
SCANGRAPHICS, INC.
ATTEST:
/s/ Victoria R. Franchetti /s/ Andrew E. Trolio
- - --------------------------------- ----------------------------------
Victoria R. Franchetti Andrew E. Trolio
Assistant Secretary Chief Executive Officer, President
and Chairman of the Board
/s/ William C. Hubbard
----------------------------------
5
<PAGE>
EXHIBIT 2
Scangraphics
------------
Projected Revenue Breakdown
---------------------------
Division 1996 1997 1998
- - -------- ---- ---- ----
Scanners/Related Software 8.0M 9.0M 11.0M
Sedona GeoServices 2.0M 11.0M 20.0M
TRC 1.3M 3.0M 5.0M
------ ------ ------
$11.3M $23.0M $36.0M
Example:
Projected Commission on realized
revenue .5% $56,500 $115 000
(Prorata or any excess thereof)
CONFIDENTIAL
June 24, 1996
License Agreement between
The Ohio State University Research Foundation and
Sedona GeoServices, Inc.
This agreement (hereinafter Agreement) effective June 24, 1996 is between the
Ohio State University Research Foundation (hereinafter "OSURF") whose principal
place of business is 1960 Kenny Road, Columbus, OH 43210-1063 and Sedona
GeoServices, Inc. (hereinafter "SEDONA") a division of Scangraphics, Inc., a
Pennsylvania Corporation whose principal place of business is 700 Abbott Drive,
Broomall, Pennsylvania 19008.
WHEREAS, The Ohio State University Center for Mapping (hereinafter "OSUCFM") has
developed various procedures, software processes, and know-how, defined below as
"DMCP TECHNOLOGY", used to convert analog maps to digital vector form, and
WHEREAS, OSUCFM is using DMCP TECHNOLOGY to convert 7.5 minute, 1:24,000
quadrangle maps to digital vector form for the United States Geological Survey
(hereinafter "USGS"), and
WHEREAS, SEDONA is engaged in the business of providing Geographic Information
System hardware, software, and services, and
WHEREAS, OSURF holds the intellectual property rights to developments made by
OSUCFM, including DMCP TECHNOLOGY, and
WHEREAS, OSURF desires to license DMCP TECHNOLOGY so that the DMCP TECHNOLOGY
will be further developed and commercialized for the good of the public and the
nation, and
WHEREAS, SEDONA has indicated a desire to acquire the license to DMCP TECHNOLOGY
for commercialization,
NOW, THEREFORE, the parties hereto, in consideration of the promises, terms and
conditions set forth herein, mutually agree as follows:
ARTICLE I - DEFINITIONS
The following terms shall have the meanings set forth below:
1.1 "DMCP TECHNOLOGY" means the Digital Map Conversion Process Technology
developed by OSUCFM to convert USGS 7.5 minute, 1:24,000 scale quadrangle maps
1
<PAGE>
CONFIDENTIAL
to digital vector form consistent with USGS DLG3 standards, as it exists on the
effective date of this Agreement. as further identified in Appendix A attached
hereto.
1.2 "LICENSED INTELLECTUAL PROPERTY" means the following items that cover or are
used for or in the manufacture, use or sale of LICENSED PRODUCTS and/or LICENSED
SERVICES:
(i) patents U.S. and foreign, if any, covering DMCP TECHNOLOGY developed
by OSUCFM;
(ii) know-how including data, designs, specifications, procedures, drawings
and technical information documenting DMCP TECHNOLOGY developed by
OSUCFM;
(iii) copyrights, software executable code (including source code), and
documentation developed by OSUCFM as part of or used for or in
connection with DMCP TECHNOLOGY developed by OSUCFM; not including
existing technology already owned or licensed by SEDONA, or future
technology developed by SEDONA, whether derived from or used for or in
connection with DMCP TECHNOLOGY developed by OSUCFM.
1.3 "LICENSED PRODUCTS" means systems, apparatus, equipment, products, or
vehicles including DMCP TECHNOLOGY and/or LICENSED INTELLECTUAL PROPERTY
developed by OSUCFM; computer software executable code and documentation
incorporated or derived from DMCP TECHNOLOGY developed by OSUCFM, not including
existing technology already owned or licensed by SEDONA, or future technology
developed by SEDONA, whether derived from or used for or in connection with DMCP
TECHNOLOGY developed by OSUCFM.
1.4 "LICENSED SERVICES" means services employing DMCP TECHNOLOGY and/or LICENSED
INTELLECTUAL PROPERTY developed by OSUCFM for the design and/or production of
LICENSED PRODUCTS.
ARTICLE II - LICENSE GRANT, ACCEPTANCE AND PERFORMANCE
2.1 Grant of License. Subject to the rights of others as set forth in Appendix
B, OSURF hereby grants to SEDONA World wide exclusive rights to DMCP TECHNOLOGY
and LICENSED INTELLECTUAL PROPERTY to make, have made, to reproduce, prepare
derivative works based on, display, perform, use, sell and/or lease LICENSED
PRODUCTS and/or LICENSED SERVICES. SEDONA shall have the right to sublicense
others to do any and all of the above.
(i) FEMA. SEDONA grants to OSURF the right to execute one (1)
non-exclusive sublicense to DMCP TECHNOLOGY to the U.S. Federal
Emergency Management Agency (FEMA), which shall be limited to
internal use. This sublicense shall be executed at the sole
discretion of OSURF. OSURF and FEMA are prohibited from
transferring the
2
<PAGE>
CONFIDENTIAL
technology to any other party (ie. a private sector partner) that
participates in the FEMA project.
(ii) OSURF. SEDONA grants to OSURF an exclusive sublicense to use and
commercialize, directly or through sublicenses, DMCP TECHNOLOGY
limited to Medical Imaging, Semiconductor Design, and DNA Mapping
applications. SEDONA (and SEDONA sublicensees) agree not to
compete with OSURF or OSURF sublicensees in these three
applications.
(iii) EDUCATIONAL USE. SEDONA grants to OSURF the right to use the
existing DMCP TECHNOLOGY for educational purposes; including
revisions and enhancements developed by OSUCFM, after one (1)
year of the revision or enhancement development completion date.
(iv) TECHNICAL ASSISTANCE. SEDONA grants OSUCFM the right to use DMCP
TECHNOLOGY for SEDONA technical assistance activities.
2.2 Representations and Warranties. Subject to the rights of the Federal
Government as provided for under 37 CFR 401.14, OSURF hereby represents and
warrants to SEDONA:
(i) that OSURF has all of the right, title and interest in and to
LICENSED INTELLECTUAL PROPERTY, and that it has the right to
grant the license provided for herein;
(ii) that as of the effective date of this Agreement OSURF has no
notice, knowledge, information or belief that any LICENSED
PRODUCTS or LICENSED SERVICES infringe any rights of others; and
(iii) that OSURF will give notice to any future sub-licensee of DMCP
TECHNOLOGY approved by SEDONA, that this Agreement is exclusive
to SEDONA and that such non-exclusive sub-licensee will not have
any rights to use DMCP TECHNOLOGY to develop and promote the
commercial application of LICENSED PRODUCTS and/or LICENSED
SERVICES, either directly or through sublicensees.
HOWEVER, OSURF EXCLUDES ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT OF
THE RIGHTS OF OTHERS, AS TO DMCP TECHNOLOGY OR LICENSED PRODUCT OR SERVICE.
2.3 Diligence. SEDONA accepts the above license, and shall exert reasonable
diligence to develop and promote the commercial application of LICENSED PRODUCTS
and LICENSED SERVICES, either directly or through sublicensees.
ARTICLE III - DELIVERABLES AND TECHNICAL ASSISTANCE
3.1 Deliverables. Within thirty (30) days of the effective date of this
Agreement, OSURF shall deliver or cause OSUCFM to deliver to SEDONA one copy of
all LICENSED INTELLECTUAL PROPERTY, including one copy of all drawings,
3
<PAGE>
CONFIDENTIAL
procedures, specifications and technical information, designs, plans, software,
and any software documentation.
3.2 Training. OSURF shall cause OSUCFM to provide knowledgeable personnel to
instruct SEDONA personnel in all relevant details of LICENSED INTELLECTUAL
PROPERTY. Training shall be in Columbus, Ohio. OSUCFM will provide ten (10
business days of training at no cost to SEDONA. Additional training shall be
available to SEDONA and OSUCFM and SEDONA shall arrange at times and places
mutually agreed to for such instruction. SEDONA shall reimburse OSUCFM for the
time and expenses of such OSUCFM personnel as mutually agreed.
3.3 Revisions and/or Enhancements. During the term of this Agreement, OSURF
through OSUCFM will continue to undertake research in digital cartography that
may result in revisions and/or enhancements to DMCP TECHNOLOGY. Such revisions
and/or enhancements, to the extent they occur, will be immediately communicated
to SEDONA and made available to SEDONA at no cost. Any revisions and/or
enhancements of DMCP TECHNOLOGY will be exclusive to SEDONA and will not be made
available to any other non-exclusive sub-licensees, without the express written
consent of SEDONA. SEDONA grants OSURF the right to provide revisions and
enhancements to FEMA (for internal use) and to OSURF sublicensees in Medical
Imaging, Semiconductor Design, and DNA Mapping applications under section 2.1
(i) and (ii).
3.4 Technical Assistance. OSURF shall cause OSUCFM to provide knowledgeable
personnel to conduct ongoing technical assistance at OSUCFM of at least two
thousand (2000) manhours per year, for each year that annual royalties are paid
by SEDONA. Technical assistance will be accomplished on a task order basis,
according to a mutually defined schedule. and directed by a technical assistance
team determined mutually by OSUCFM and SEDONA.--OSUCFM will document in
quarterly and annual reports. all technical goals. plans and accomplishments.
Any new technology, not previously owned by OSUCFM but developed by OSUCFM under
SEDONA task orders will be owned by SEDONA.
ARTICLE IV - ROYALTIES
4.1 Initial Royalty. SEDONA shall pay OSURF or cause OSURF to be paid one
hundred twenty thousand U.S. dollars ($120,000) on July 1, 1996. SEDONA shall
pay OSURF or cause OSURF to be paid one hundred thousand U.S. dollars ($100,000)
on January 2, 1997.
4.2 Ongoing Royalty. SEDONA shall pay OSURF or cause OSURF to be paid one
hundred ten thousand U.S. dollars ($110,000) on July 1, 1997 and one hundred ten
thousand U.S. dollars ($110,000) on January 2, 1998 and one hundred ten thousand
U.S. dollars ($110,000) bi-annually thereafter through January 2, 2002 for total
Ongoing Royalty payments through July 1, 2002 of one million one hundred
thousand U.S. dollars
4
<PAGE>
CONFIDENTIAL
($1,100,000). The total of the Initial Royalty payment plus the Ongoing Royalty
payments shall be one million three hundred twenty thousand U.S. dollars
($1,320,000).
ARTICLE V - ENFORCEMENT
5.1 Notice of infringement. SEDONA will notify OSURF if it has reason to believe
that others are infringing OSURF's intellectual property rights in DMCP
TECHNOLOGY or LICENSED INTELLECTUAL PROPERTY RIGHTS, but OSURF assumes no
obligation to abate such infringement.
5.2 Right to Pursue infringers. OSURF hereby grants to SEDONA the right to sue
infringers of DMCP TECHNOLOGY and/or LICENSED INTELLECTUAL PROPERTY. SEDONA
shall bear all costs of such suits and OSURF shall, at the request of SEDONA,
join in such suits and cooperate in suits. SEDONA shall bear the costs incurred
by OSURF for joining and cooperating in such suits. Nothing in this Agreement
obligates SEDONA or OSURF to bring a suit for infringement or misappropriation.
ARTICLE VI - FORCE MAJEURE
6.1. Force Majeure. Neither party shall incur any liability, consequential or
otherwise, for any delay in performance or failure to perform its obligations
under this Agreement, due to acts of God or public enemies, acts of other
parties, requests or regulations of civil or military authority, labor disputes,
accidents at the factory, lockouts, fire, riots, war or other outbreaks or
hostilities, embargoes, inability to obtain shipping or raw material, delays of
carriers or suppliers, machinery breakdowns, epidemics, floods. unusually severe
weather, shortage of power or fuel, or any other causes whatsoever beyond the
reasonable control of the party in question.
ARTICLE VII - DURATION AND TERMINATION
7.1 Duration. This Agreement is effective as of the date given above through
December 31, 2006. This section shall survive the normal termination of this
Agreement.
7.2 Termination. Notwithstanding any other provisions of this Agreement, SEDONA,
at its option, may terminate this Agreement upon six (6) months prior written
notice to OSURF. Upon termination of this Agreement by SEDONA, SEDONA
relinquishes all rights to make, have made, to reproduce, prepare derivative
works based on, display, perform, use, sell and/or lease LICENSED PRODUCTS
and/or LICENSED SERVICES, either directly or through sublicensees. OSURF may
similarly terminate this Agreement should SEDONA fail to comply with or to
perform when due any of its payments or other material obligations under this
Agreement (including Sections 2.3, 4.1, 4.2, 5.1, 9.5, 9.6 and 9.7), and should
such failure not be cured within sixty (60) days of written notice of such
breach having been given by OSURF. Any termination pursuant to this Article 7.2
shall be in addition to, and not in place of, a party's other rights or remedies
which were
5
<PAGE>
CONFIDENTIAL
in existence prior to such termination. In the event of termination by OSURF,
this agreement shall inure to Sedona to allow a non-exclusive right to use the
DMCP TECHNOLOGY (except in the Medical Imaging, Semiconductor Design, and DNA
Mapping applications) if payments made to OSURF under this agreement total at
least $320,000, otherwise all SEDONA's rights in DMCP TECHNOLOGY revert to
OSURF.
ARTICLE VIII - EXPORT CONTROLS
8.1 Export Controls. It is understood that OSURF is subject to United States
laws and regulations controlling the export of technical data, computer
software, laboratory prototypes and other commodities (including the Arms Export
Control Act, as amended and the Export Administration Act of 1979), and that its
obligations hereunder are contingent on compliance with applicable United States
export laws and regulations. The transfer of certain technical data and
commodities may require a license from the cognizant agency of the United States
Government and/or written assurances by SEDONA that SEDONA shall not export data
or commodities to certain foreign countries without prior approval of such
agency. OSURF neither represents that a license shall not be required nor that
if required. it shall be issued.
ARTICLE IX - MISCELLANEOUS
9.1 Non-Waiver. The waiver by either party of a breach of any provision of this
Agreement shall not be deemed to effect or imply a waiver of any other breach of
such provision or a waiver of the provision itself.
9.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive and procedural laws of the State of Ohio.
9.3 Assignment. This Agreement shall inure to the benefit of and be binding upon
each of the parties and their successors and assigns. This Agreement is not
assignable without the expressed written consent of the other party and any
attempt to assign without such written consent is void.
9.4 Notices. Any notice. request. report or payment which may or must be given
under this Agreement shall be in writing and sent to the other party at its
address indicated below or to such other address as the addressee shall have
theretofore furnished in writing to the addresser.
IF TO OSURF:
Office of Technology Transfer
The Ohio State University Research Foundation
1960 Kenny Road
Columbus, OH 43210-1063
ATTN: Director
6
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CONFIDENTIAL
with a copy to:
Center for Mapping
The Ohio State University
1216 Kinnear Road
Columbus, OH 43212
ATTN: Director
IF TO SEDONA
SEDONA GeoServices, Inc.
700 Abbott Drive
Broomall, PA 19008-4373
ATTN: Mr. William Hubbard
Executive V.P.
9.5 Indemnification. SEDONA agrees to indemnify, hold harmless and defend OSURF,
its officers, employees, and agents, against any and all claims, suits, losses,
damage, costs, fees, and expenses resulting from or arising out of SEDONA's or
sublicensee's use of DMCP TECHNOLOGY and/or LICENSED INTELLECTUAL PROPERTY in
connection with this license.
9.6 Marking. SEDONA agrees that any material subject to an OSURF copyright and
constituting all or part of a LICENSED PRODUCT produced or distributed under
this Agreement, shall bear a copyright notice in the name of The Ohio State
University Research Foundation and that any LICENSED PRODUCT covered by an OSURF
patent or patent application, if any, may be marked with the number or such
patent or the legend "patent pending", respectively.
9.7 Use of Name. SEDONA will not otherwise use, or authorize others to use, the
name of OSURF, OSUCFM, or The Ohio State University, or of officers or employees
of any of them, in connection with any commercial promotion accruing to the
benefit of SEDONA or such others under this Agreement except with the prior
written consent of OSURF, but any such consent shall not be deemed to constitute
or imply the consent of any individual to the use of his or her own name.
9.8 Severability. If a court or other lawful authority of competent jurisdiction
declares any provision of this Agreement invalid, illegal or unenforceable, this
Agreement will continue in full force and effect with respect to all other
provisions and Sections and all rights and remedies accrued under such other
provisions and Sections will survive any such declaration.
9.9 Entire Agreement. The terms and provisions contained in this Agreement
constitute the entire Agreement between the parties with respect to the subject
matter hereof
7
<PAGE>
integrating all previous communications, representations, agreements or
understanding, either oral or written between the parties hereto, insofar as
they might be asserted to vary the terms and provisions hereof, and no agreement
or understanding varying or extending this Agreement will be binding upon either
party hereto unless such agreement or understanding is in writing and
specifically refers to this Agreement, is signed by duly authorized or
representatives of the respective parties, and the provisions of this Agreement
not specifically amended thereby shall remain in full force and effect according
to their terms.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Agreement, on the dates below indicated.
FOR SEDONA: FOR OSURF:
By: /s/ [CLIENT SUPPLY] By: /s/ [CLIENT SUPPLY]
------------------------------ -------------------------------
Title: Executive Vice President Title: Director Tech Transfer
--------------------------- ----------------------------
Date: 6/24/96 Date: 6/24/96
---------------------------- -----------------------------
8
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June 24, 1996
CONFIDENTIAL
License Agreement between
The Ohio State University Research Foundation and
Sedona GeoServices, Inc.
Appendix A
Subject: Description of DMCP TECHNOLOGY.
GISOM CURRENT CONVERSION METHODOLOGY
-------- ------- --------
Scanning Warping Plotting
-------- ------- --------
------- -----------
QC/QA Vectorizing
------- Attributing
-----------
The following are the specific steps followed by GISOM staff in the
conversion of 7.5-minute quadrangles into DLG-3 files for the State of Ohio. The
graphic package used on the PC-486/MS-DOS platform as well in the UNIX
environment is Intergraph/Bentley's MicroStation Version 5. Time is given in
manhours, and in generally, a single individual is used per task in the GISOM
project.
<TABLE>
<CAPTION>
Description Time per Quad Program Computer Platform
of the Process (hours) Name Operating System
- - -------------- ------------- ------- -----------------
Scanning
--------
<S> <C> <C> <C>
Source material evaluation 0.1-0.3 none none
Source material scanning 0.3 SRIF (Intergraph) Intergraph/UNIX
Creation of empty .DGN file 0.1 GEOUTM Intergraph/UNIX or
(USGS/CFM) PC-486/MS-DOS
Raster image evaluation 0.1-0.3 BRAS or IRASB Intergraph/UNIX or
(Intergraph) PC-486/MS-DOS
Warping
-------
Warping of.RLE files 1.0-1.3 CFM_WARP (CFM) Sun/UNIX
Plotting
--------
Plotting of raster and/or 0.25-0.50 CFM_PLOT (CFM) PC-486/MS-DOS
vector files
Automatic Vectorizing
---------------------
Contour raster-to-vector 75-2.0(*) I/VEC (Intergraph) Intergraph/UNIX
conversion (no attributes)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
CONFIDENTIAL
Interactive Vectorizing
-----------------------
<S> <C> <C> <C>
Heads-up digitizing and 40.0-200.0(**) RETSAM_PC (CFM) PC486/MS-DOS
attributing & elevation
tagging
Internal Consistency, Elevations, and Attribute QC/QA
-----------------------------------------------------
Conversion of .DGN into 0.1-0.3 DGN_DO PC486/MS-DOS
DLG optional (USGS/CFM)
Generation of topology, 1.0-2.5 PROSYS (USGS) Sun/UNIX
check internal consistency,
contour elevations, and
attributes.
Conversion to .DGN 0.1-0.3 DD_DGN PC-486/MS-DOS
(USGS/CFM)
Description Time per Quad Program Computer Platform
of the Process (hours) Name Operating System
- - -------------- ------------- ------- -----------------
Visual QC/QA
------------
Checking of line work for 4.0-40.0(***) RETSAM_PC(CFM) PC-486/MS-DOS
positional accuracy, and
completeness
Time Range: 47.8-247.9
</TABLE>
* The program CFM_CONTOURS will replace I/VEC. This program automatically
generates the attribute for each contour (including the elevation value).
** The use of CFM_CONTOURS will decrease the time in this step by about 40%.
*** The program CFM_VQC will replace the visual QC for hypsography. This will
decrease the time in this step by about 50%.
<TABLE>
<CAPTION>
Software Being Tested
---------------------
Description Completion Program Computer Platform
of the Process date Name Operating System
- - -------------- ---------- ------- -----------------
<S> <C> <C> <C>
Highly automatic contour July, 1995 CFM_CONTOURS Pentium/UNIX Linnux
Vectorizing and attributing
(CFM)
Highly automated Positional August, 1996 CFM_VQC (CFM) Sun/UNIX
QC & completeness for
hypsography
Software Being Developed
------------------------
Interactive line following December, 996 CFM_HYD (CFM) PC-486/MS-DOS
of hydrographic features
</TABLE>
10
<PAGE>
CONFIDENTIAL
June 24, 1996
License Agreement between
The Ohio State University Research Foundation and
Sedona GeoServices, Inc.
Appendix B
Subject: Rights of Others to the DMCP TECHNOLOGY.
1. The U.S. Geological Survey of the Department of Interior and the Federal
Government have certain rights under 37CFR401.14 to use the DMCP TECHNOLOGY for
Government purposes.
2. Five State Government Agencies in addition to the U.S. Geological Survey are
cooperatively funding a raster-to-vector map conversion project. The Ohio
agencies are:
* The Ohio Environmental Protection Agency
* The Ohio Department of Transportation
* The Ohio Department of Natural Resources
* The Ohio Department of Administrative Services Development
* The Ohio Department of Development
The project, referred to as "Gathering Information Scanning Ohio Maps (GISOM)",
is to convert the USGS 7.5" quadrangle maps covering the State of Ohio to the
USGS DLG3 standard. The GISOM project, initiated in 1993 and expected to be
completed in 1997, is the primary source of DMCP TECHNOLOGY.
11
<PAGE>
IBDO
BDO Seidman, LLP
Accountants and Consultants
1601 Market Street
Philadelphia, Pennsylvania 19103-2311
Telephone: (215) 241-1500
FAX: (215) 997-8314
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Scan-Graphics, Inc
Broomall, Pennsylvania
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of Form S-3 of our report
dated March 8, 1996, except for Note 18, as to which the date is March 30, 1996,
relating to the consolidated financial statements and schedule appearing in
Scan-Graphics, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1995.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO SEIDMAN, LLP
-----------------------------
BDO SEIDMAN, LLP
Philadelphia, Pennsylvania
May 8, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> Year
<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-01-1996
<PERIOD-END> Dec-31-1996
<EXCHANGE-RATE> 1.000
<CASH> 1,081
<SECURITIES> 0
<RECEIVABLES> 1,033
<ALLOWANCES> 189
<INVENTORY> 1,174
<CURRENT-ASSETS> 3,190
<PP&E> 3,376
<DEPRECIATION> (2,512)
<TOTAL-ASSETS> 4,092
<CURRENT-LIABILITIES> 1,386
<BONDS> 0
0
2,250
<COMMON> 15
<OTHER-SE> 291
<TOTAL-LIABILITY-AND-EQUITY> 4,092
<SALES> 5,060
<TOTAL-REVENUES> 5,060
<CGS> 4,013
<TOTAL-COSTS> 4,672
<OTHER-EXPENSES> 214
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 432
<INCOME-PRETAX> (4,271)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,271)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,271)
<EPS-PRIMARY> (.39)
<EPS-DILUTED> (.39)
</TABLE>
