<PAGE> 1
FORM 10-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Fiscal Year Ended December 31, 1998
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: 0-22280
PHILADELPHIA CONSOLIDATED HOLDING CORP.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-2202671
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
ONE BALA PLAZA, SUITE 100
BALA CYNWYD, PENNSYLVANIA 19004
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (610) 617-7900
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK, NO PAR VALUE
(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 [ ] 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. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant, based upon the closing sale price of the Common Stock on March 24,
1999 as reported on the NASDAQ National Market System, was $137,086,971. Shares
of Common Stock held by each executive officer and director and by each person
who is known by the Registrant to beneficially own 5% or more of the outstanding
Common Stock have been excluded in that such persons may be deemed to be
affiliates. This determination of affiliate status is not necessarily a
conclusive determination for other purposes.
As of March 24, 1999, Registrant had outstanding 12,220,115 shares of Common
Stock.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Portions of the definitive Proxy Statement for Registrant's 1999 Annual
Meeting of Shareholders to be held May 6, 1999 are incorporated by
reference in Part III.
The Exhibit Index is located on Page 55 of 273.
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PART I
Item 1. BUSINESS
GENERAL
As used in this Annual Report on Form 10-K, (i) "Philadelphia
Insurance" refers to Philadelphia Consolidated Holding Corp., (ii) the "Company"
refers to Philadelphia Insurance and its subsidiaries, doing business as
Philadelphia Insurance Companies; (iii) the "Insurance Subsidiaries" refers to
Philadelphia Indemnity Insurance Company ("PIIC") and Philadelphia Insurance
Company ("PIC"), collectively; (iv) "MIA" refers to Maguire Insurance Agency,
Inc., a captive underwriting manager; and (v) "PCHC Investment" refers to PCHC
Investment Corp., an investment holding company. Philadelphia Insurance was
incorporated in Pennsylvania in 1984, to serve as a holding company for its four
wholly owned subsidiaries (PIIC, PIC, MIA, and PCHC Investment).
1998 marked the fifth anniversary for the Company as a publicly traded
entity. During this five-year period, gross written premiums increased from
$57.1 million to $197.4 million, the GAAP basis combined ratio (the sum of the
net loss and loss adjustment expenses and acquisition costs and other
underwriting expenses divided by net earned premiums) averaged 86.4%, and the
net operating income compound annual growth rate was 42.1%. The Company believes
these achievements are primarily due to its continued focus on generating
underwriting profits through conservative underwriting and pricing discipline,
its differentiation in the marketplace through development of value-added
coverage and service enhancements, and its multiple channels of distribution.
During 1998, the Company completed a $103.5 million FELINE PRIDES(SM)
security offering, thereby adding new capital to the Company. The Company
intends to use the proceeds from this security offering for general corporate
purposes, which may include acquisitions (including, without limitation,
acquisitions of programs or books of business), capital expenditures, capital
contributions, and the repurchase by the Company of its common stock. From these
proceeds, $33.1 million was contributed to the Company's subsidiaries and $3.1
million was utilized to buy back the Company's common stock, under a stock
buy-back program of up to $10.0 million authorized by the Company's Board of
Directors.
The Insurance Subsidiaries have been assigned an "A+" (Superior) Best's
Rating by A.M. Best Company. According to A.M. Best, the "A+" (Superior) rating
is issued to companies that demonstrate excellent financial strength and ability
to meet its obligations to policyholders. A.M. Best ratings are based upon
factors relevant to policyholders and are not directed toward the protection of
investors. The Insurance Subsidiaries also possess an "A" claims paying ability
rating by Standard & Poor's. According to Standard & Poor's, insurers rated "A"
offer good financial security for policyholders. The Company believes that the
"A+" rating assigned by A.M. Best and the "A" rating assigned by Standard &
Poor's are important factors in marketing its products.
BUSINESS STRATEGY
The Company designs, markets and underwrites specialty commercial
property and casualty insurance products incorporating value-added coverages and
services for select target industries or niches. A mixed marketing strategy is
utilized, wherein, the Company's production underwriting organization markets
the Company's insurance products directly to the insured, designated broker
representatives, and a network of preferred agents. The Company's production
underwriting organization, consisting of 160 professionals at year end 1998,
operates from 40 regional offices located across the United States and includes
telemarketing staffs at its regional offices and the Philadelphia Home Office.
Approximately, 54% of the total 1998 gross premium was produced indirectly
either through the Company's 53 preferred agents (16%) or its some 4,000 broker
relationships (38%).
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Product Lines
The following table sets forth, for the years ended December 31, 1998, 1997
and 1996, the gross written premiums on the Company's insurance product lines
and the relative percentages that such premiums represented.
<TABLE>
<CAPTION>
For the Years Ended December 31,
-----------------------------------------------------------------------
1998 1997 1996
---- ---- ----
Dollars Percentage Dollars Percentage Dollars Percentage
------- ---------- ------- ---------- ------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Gross Written Premiums
Commercial Automobile ....... $ 21,748 11.0% $ 18,415 11.6% $ 18,506 13.5%
Commercial Excess ........... 60,873 30.8 59,296 37.3 56,411 41.2
Commercial Package .......... 78,090 39.6 60,012 37.7 43,707 32.0
Specialty Lines ............. 30,396 15.4 20,748 13.0 16,558 12.1
Specialty Property & Inland
Marine ...................... 1,104 .6
New Programs ................ 4,828 2.4
Involuntary ................. 369 .2 620 .4 1,673 1.2
-------- ------- -------- ------- -------- -------
Total ....................... $197,408 100.0% $159,091 100.0% $136,855 100.0%
======== ======= ======== ======= ======== =======
</TABLE>
Commercial Automobile and Commercial Excess: The Company has provided
Commercial Automobile Products to the leasing and rent-a-car industries for 36
years. Products offered to the rent-a-car industry include coverage for the
business owner's property, dual interest liability, and physical damage on the
rental vehicle. In 1998, the Company added paratransit as an additional class of
business.
Additionally, through arrangements with a number of the largest rent-a-car
companies, the Company also offers its commercial excess product at the rental
car counter to rent-a-car customers protecting them against liability for bodily
injury and property damage, which is excess of the statutory coverage provided
with the rental vehicle and primary over the renter's personal automobile
insurance coverage.
In keeping with its marketing philosophy, the Company includes a number of
special features in its rental car products and services in an attempt to
differentiate them from the competition. Such features include: catastrophic
comprehensive coverage for losses due to fire, lightening, windstorm, hail,
flood, earthquake and other specified causes; subrogation services on
self-insured physical damage; liability deductibles; and self-insured retention
programs.
The Company also offers a full range of liability and physical damage
coverages to automobile leasing companies and their customers. For the driver
(the lessee), coverages include both primary liability and physical damage
coverage on the vehicle. For the owner (the lessor), coverages include
contingent and excess liability over the primary liability layer which protects
lessors in the event of a loss when the primary coverage is absent or inadequate
and contingent physical damage coverage. Additional products offered to leasing
companies include interim primary liability and physical damage coverage, which
protects the lessor of the vehicle before and after it is delivered to the
lessee; residual value coverage which guarantees the value of the leased vehicle
at the termination of the lease; and guaranteed asset protection coverage which
protects the lessor and lessee for the difference between the leased vehicle's
actual cash value and the lease or loan net value in instances where the vehicle
is stolen or damaged beyond repair.
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Commercial Package: The Company has been providing Commercial Multi Peril
Package Policies ("Package Programs") to specific targeted niche markets for
over 10 years. Among the organizations to which the Company offers its specialty
niche package programs are non-profit, health and fitness, homeowners
associations, and most recently, condominium associations, and day care
facilities. The package policies provide a combination of comprehensive
liability, property, automobile, and workers compensation coverage with limits
up to $1.0 million for casualty, $100.0 million for property, and umbrella
limits on an optional basis up to $10.0 million. Policies are further tailored
to include special value-added features addressing unique aspects of each of the
above niche markets - differentiating the Company's product offerings from those
of its competitors.
Specialty Lines: The Company has been providing specialty professional
liability products for approximately ten years, specializing in non-ISO,
proprietary policies developed primarily for the professional liability,
employment practices and directors & officers liability markets. The Company
focuses on maintaining a high renewal retention, improving current products,
developing new products and staffing field offices with experienced
underwriters. During 1998, the Company introduced a variety of coverage
enhancements to several of its policies, including Executive Safeguard(SM),
Miscellaneous Professional and Non-Profit Directors & Officers. These
enhancements were designed to improve and differentiate the coverage offered
without sacrificing underwriting results. In addition, two new products -
Accountants and Dentists Professional Liability - were introduced into
previously untapped markets. The Company has taken significant steps to
regionalize its underwriting. By having a local underwriting presence,
policyholders can benefit from quicker service and easier access to their
underwriter. Furthermore, the Company is able to draw from other regional
markets to fill its highly specialized personnel needs. The Company plans on
staffing the remaining regional offices with experienced specialty lines
underwriters during 1999.
Specialty Property & Inland Marine: The Company established a Specialty
Property & Inland Marine underwriting organization during 1998 specializing in
large property risks and inland marine insurance. Products include the
UltimateCover Policy which is designed to insure a wide range of business
entities from shopping centers to hotels to educational. The Company anticipates
that the UltimateCover Policy will not only provide the opportunity to market to
new insureds, but will also provide the opportunity to round out existing
product offerings and create cross-selling opportunities. With respect to inland
marine products, the concentration of effort will be on the larger segments of
the inland marine market including builders' risk, contractors' equipment and
motor truck cargo. In addition, the expertise now exists to manuscript coverage
forms for the unusual, "one-of-a-kind-type" account. The Specialty Property and
Inland Marine Underwriting organization currently consists of a total of 20
professionals and support staff. The professionals possess an average experience
level of 25 years in this market niche and will immediately introduce a "new"
agency force to the Company's distribution, further complementing the Company's
mixed marketing approach.
New Products/Programs: The Company continually evaluates new
product(s)/program(s) which either complement its current niche markets or
provide opportunities consistent with its strategic focus on conservative
underwriting and pricing within a select market niche. During 1998, the Company
offered for the first time workers' compensation coverage (through a fronting
and quota share arrangement) to "round out" its specialty and commercial lines
product offerings. Additionally, the Company introduced a commercial multi-peril
package product for day care facilities and a mobile home program.
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The following table provides the geographic distribution of the Company's
risks insured as represented by direct earned premiums for all product lines for
the year ended December 31, 1998. No other state accounted for more than 2% of
total direct earned premiums for all product lines for the year ended December
31, 1998 (Dollars in Thousands).
<TABLE>
<CAPTION>
State Direct Earned Premiums Percent of Total
----- ---------------------- ----------------
<S> <C> <C>
California................................. $32,395 18.7%
Florida.................................... 19,327 11.1
New York................................... 10,556 6.1
New Jersey................................. 8,809 5.1
Illinois................................... 7,186 4.1
Hawaii..................................... 7,015 4.0
Texas...................................... 6,478 3.7
North Carolina............................. 6,338 3.7
Massachusetts.............................. 6,241 3.6
Pennsylvania............................... 6,167 3.6
Ohio....................................... 6,057 3.5
Washington................................. 3,713 2.1
Connecticut................................ 3,588 2.1
Other...................................... 49,685 28.6
-------- -----
Total Direct Earned Premiums............... $173,555 100.0%
======== =====
</TABLE>
Underwriting and Pricing
The Company's underwriting function is segregated into three independent
groups: Commercial Lines, Specialty Lines, and Specialty Property & Inland
Marine. Commercial and Specialty Lines, and Specialty Property and Inland Marine
responsibilities include: pricing all business, managing the risk selection
process, and monitoring loss ratios by product and insured.
The Commercial Lines group, which has underwriting responsibility for the
Company's commercial automobile and commercial package products, currently
consists of home office underwriters that are supported by underwriting
assistants, raters, and other policy administration personnel. The Commercial
Lines underwriters and support staff are organized into geographic underwriting
teams responsible for underwriting and servicing specific commercial automobile
and commercial package products. Each underwriting team is under the direction
of a Senior Underwriter who reports to the Vice President of Commercial Lines
Underwriting.
The Specialty Lines group, which has underwriting responsibility for the
Company's professional liability products, consists of 16 home office
underwriters and 10 regional underwriters, who report to the Chief Operating
Officer, and are supported by underwriting assistants. The Specialty Lines
underwriters have responsibility for underwriting specific professional
liability products within designated Company marketing regions. The Specialty
Lines underwriters located in regional offices work closely with the marketing
department to generate profitable business.
The Specialty Property & Inland Marine group, which has authority for the
Company's large property and inland marine products, currently consists of two
home office underwriters who are supported by underwriting assistants and other
personnel. In addition, the Company has strategically placed 13 underwriting
teams within the Company's existing field offices. These regional underwriters
have total responsibility for sales, underwriting, policy issuance, and overall
management of the book of business. All regional and home office Specialty
Property & Inland Marine underwriters report to the Vice President of Specialty
Property & Inland Marine Underwriting. The Company believes that by delivering
excellent service on a local basis, relationship building will be enhanced.
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The Company uses a combination of Insurance Services Office, Inc. ("ISO")
coverage forms and rates and independently filed forms and rates. Coverage forms
and rates are independently developed in situations where the line of business
is not supported by ISO or where management believes the ISO forms and rates do
not adequately address the risk. Departures from ISO forms are also used to
differentiate the Company's products from its competitor's products and are
independently filed.
The Company attempts to follow conservative underwriting and pricing
practices. When necessary, the Company is willing to reunderwrite, sharply
curtail or discontinue a product deemed to present unacceptable risks. Written
underwriting guidelines are maintained, and updated regularly, for all classes
of business underwritten. Adherence to underwriting guidelines is maintained
through underwriting audits. Product price levels are measured utilizing a price
monitoring system which measures the aggregate price level of the book of
business. This system is intended to assist management and underwriters in
recognizing and correcting price deterioration before it results in underwriting
losses.
Reinsurance
The Company's casualty reinsurance agreement with Swiss Re America (the
"Reinsurer") provides that the Company bears the first layer of liability on
each occurrence (varying from $100,000 to $500,000 based upon the specific
product) with the Reinsurer bearing the remaining contractual liability to
policy limits of $1.0 million. Casualty risks in excess of $1.0 million up to
$11.0 million are reinsured under a casualty treaty ("Excess Treaty") placed
through a reinsurance broker. GE RE, Trenwick, and Liberty Mutual currently
participate on the Excess Treaty at 50%, 25%, and 25%, respectively. Each of
these reinsurers is rated "A" (Excellent) or better by A.M. Best Company.
Facultative reinsurance is placed for each casualty risk in excess of $11.0
million.
The Company also has an excess casualty reinsurance agreement with the
Reinsurer providing an additional $5.0 million of coverage for protection from
exposures such as extra-contractual obligations and judgments in excess of
policy limits. Additionally, the Company has an errors and omissions insurance
policy which provides an additional $5.0 million of coverage with respect to
these exposures.
The Company's property excess of loss reinsurance treaty provides that the
Company bears the first $500,000 layer of loss on each risk with General
Reinsurance and Swiss Re America bearing the next $9.5 million layer of loss on
each risk on a 55% / 45% quota share basis, respectively. The Company has an
automatic facultative excess of loss cover with General Reinsurance and Swiss Re
America (participating on a 55% / 45% quota share basis, respectively) for each
property risk in excess of $10.0 million up to $100.0 million. Additionally, the
Company has property catastrophe reinsurance for property catastrophe losses in
excess of $2.0 million up to $14.0 million.
The Company seeks to limit the risk of a reinsurer's default in a number of
ways. First, the Company principally contracts with large reinsurers that are
rated at least "A-" (Excellent) by A.M. Best. Second, the Company seeks to
collect the obligations of its reinsurers on a timely basis. This collection
effort is supported by a reinsurance recoverable system that is regularly
monitored. Finally, the Company typically does not write casualty policies in
excess of $10.0 million nor property policies in excess of $50.0 million.
The Company regularly assesses its reinsurance needs and seeks to improve
the terms of its reinsurance arrangements as market conditions permit. Such
improvements may involve increases in retentions, modifications in premium
rates, changes in reinsurers and other matters.
Marketing and Distribution
Proactive risk selection based on sound underwriting criteria and
relationship selling in clearly defined target markets continues to be the
foundation of the Company's marketing plan. Within this framework, the Company's
marketing effort is designed to assure a systematic and disciplined approach to
developing business which is anticipated to be profitable. The Company's most
important distribution channel is its production underwriting organization. The
production underwriting organization is currently comprised of 160 employees
located in 40 field offices in major markets across the country. The field
offices are focused daily on interacting with prospective and existing insureds.
In addition to this direct
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marketing, relationships with approximately 4,000 brokers have been formed
either as a result of the broker having a relationship with the insured, or
through seeking the Company's expertise in one of its specialty products.
The Company's preferred agent program, wherein business relationships are
formed with brokers specializing in certain of the Company's business niches,
has grown to 53 preferred agent relationships at year end 1998, representing
approximately $32.0 million in gross written premium. The Company anticipates
increasing the number of these relationships by approximately 30% in 1999
thereby further increasing the distribution of the Company's niche products.
This mixed marketing concept not only provides the flexibility to work with the
broker and/or policyholder but also provides the flexibility to seize emerging
market opportunities.
With regard to the Specialty Property & Inland Marine underwriting
organization, the Company has developed working relationships with a variety of
distribution channels including wholesalers, brokers, and select independent
agents.
The Company supplements its marketing efforts through trade shows, direct
mailings and national advertisements placed in trade magazines serving
industries in which the Company specializes.
Product Development
The Company continually evaluates new product opportunities, consistent
with its strategic focus on selected market niches. Direct contacts between the
Company's field and home office personnel and its customers have produced a
number of new product ideas. All new product ideas are presented to the Product
Development Committee (the "Committee") for consideration. The Committee,
currently composed of the Company's two most senior executives, as well as
officers from the underwriting and claims departments, meets regularly to review
the feasibility of products from a variety of perspectives, including
underwriting risk, marketing and distribution, reinsurance, long-term viability
and consistency with the Company's culture and philosophy. For each new product,
an individualized test market plan is prepared, addressing such matters as the
appropriate distribution channel (e.g., a limited number of selected production
underwriters), an appropriate cap on premiums to be generated during the test
market phase and reinsurance requirements for the test market phase. Test market
products may involve lower retentions than customarily utilized. After a new
product is approved for test marketing, the Company monitors its success based
on specified criteria (e.g., underwriting results, sales success, product demand
and competitive pressures). If expectations are not realized, the Company either
moves to improve results by initiating adjustments or abandons the product.
Claims Management and Administration
In accordance with its emphasis on underwriting profitability, the Company
actively manages claims under its policies in an effort to investigate reported
incidents at the earliest juncture, service insureds and minimize fraud. Claim
files are regularly audited by claims supervisors and the Company's reinsurers
in an attempt to ensure that claims are being processed properly and that
reserves are being set at appropriate levels. Claims examiners are expected to
set conservative reserves, an important factor in the Company's reserve
development over the years. See "Loss and Loss Adjustment Expenses."
The Company maintains a Special Investigations Unit to investigate
suspicious claims and to serve as a clearinghouse for information concerning
fraudulent practices primarily within the rental car industry. Working closely
with a variety of industry contacts, including attorneys, investigators and
rental car company fraud units, this unit has uncovered a number of fraudulent
claims.
Loss and Loss Adjustment Expenses
The Company is liable for losses and loss adjustment expenses under its
insurance policies and reinsurance treaties. While the Company's professional
liability policies are written on claims-made forms and while claims on its
other policies are generally reported promptly after the occurrence of an
insured loss, in many cases several years may elapse between the occurrence of
an insured loss, the reporting of the loss to the Company and the Company's
payment of the loss. The Company reflects its liability for the ultimate payment
of all incurred losses and loss adjustment expenses by establishing loss and
loss adjustment expense reserves, which are balance sheet liabilities
representing estimates of future amounts needed to pay claims and related
expenses with respect to insured events that have occurred.
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When a claim involving a probable loss is reported, the Company establishes
a case reserve for the estimated amount of the Company's ultimate loss and loss
adjustment expense. This estimate reflects an informed judgment, based on the
Company's reserving practices and the experience of the Company's claims staff.
Management also establishes reserves on an aggregate basis to provide for losses
incurred but not reported ("IBNR"), as well as future development on claims
reported to the Company.
As part of the reserving process, historical data are reviewed and
consideration is given to the anticipated effect of various factors, including
known and anticipated legal developments, changes in societal attitudes,
inflation and economic conditions. Reserve amounts are necessarily based on
management's estimates and judgments; as new data become available and are
reviewed, these estimates and judgments are revised, resulting in increases or
decreases to existing reserves. To verify the adequacy of its reserves, the
Company engages independent actuarial consultants to perform interim loss
reserve analyses and annual certifications.
The following table sets forth a reconciliation of beginning and ending
reserves for unpaid loss and loss adjustment expenses, net of amounts for
reinsured losses and loss adjustment expenses, for the years indicated. As a
result of changes in estimates of insured events of prior years, the Company
reduced losses and loss adjustment expenses incurred by $3,170,000, $1,716,000
and $965,000 in 1998, 1997 and 1996, respectively. Such favorable development
was due to losses emerging at a lesser rate than had been originally anticipated
when the initial reserves for the applicable accident years were estimated.
<TABLE>
<CAPTION>
As of and For the Years Ended December 31,
-----------------------------------------------
1998 1997 1996
---- ---- ----
(Dollars in Thousands)
<S> <C> <C> <C>
Unpaid loss and loss adjustment expenses at
beginning of year (1) .................................. $ 108,928 $ 85,723 $ 68,246
--------- --------- ---------
Provision for losses and loss adjustment expenses for
current year claims .................................... 69,544 56,725 41,083
Decrease in estimated ultimate losses and loss
adjustment expenses for prior year claims .............. (3,170) (1,716) (965)
--------- --------- ---------
Total incurred losses and loss adjustment expenses ........ 66,374 55,009 40,118
--------- --------- ---------
Loss and loss adjustment expense payments for claims
attributable to:
Current year ........................................... 13,402 9,512 7,427
Prior years ............................................ 26,870 22,292 15,214
--------- --------- ---------
Total payments ............................................ 40,272 31,804 22,641
--------- --------- ---------
Unpaid loss and loss adjustment expenses at end of year (1) $ 135,030 $ 108,928 $ 85,723
========= ========= =========
</TABLE>
(1) Unpaid loss and loss adjustment expenses differ from the amounts
reported in the Consolidated Financial Statements because of the
inclusion therein of reinsurance receivables of $16,120, $13,502 and
$10,919 at December 31, 1998, 1997 and 1996, respectively.
The following table presents the development of unpaid loss and loss
adjustment expenses, net of amounts for reinsured losses and loss adjustment
expenses, from 1988 through 1998. The top line of the table shows the estimated
reserve for unpaid loss and loss adjustment expenses at the balance sheet date
for each of the indicated years. These figures represent the estimated amount of
unpaid loss and loss adjustment expenses for claims arising in the current year
and all prior years that were unpaid at the balance sheet date, including IBNR
losses. The table also shows the re-estimated amount of the previously recorded
unpaid loss and loss adjustment expenses based on experience as of the end of
each succeeding year. The estimate changes as more information becomes known
about the frequency and severity of claims for individual years.
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AS OF AND FOR THE YEARS ENDED DECEMBER 31,
(Dollars in Thousands)
<TABLE>
<CAPTION>
UNPAID LOSS AND LOSS ADJUSTMENT
EXPENSES, AS STATED 1988 1989 1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$ 10,615 $ 12,198 $ 15,930 $ 22,248 $ 31,981 $ 38,714 $ 53,595 $ 68,246
Cumulative Paid as of:
1 year later .................... 2,955 3,354 4,286 6,698 9,865 10,792 12,391 15,214
2 years later .................... 4,832 6,249 8,084 12,485 16,290 19,297 23,139 31,410
3 years later .................... 6,584 8,807 10,838 16,288 21,253 24,991 33,511 40,637
4 years later .................... 7,813 10,155 12,907 17,780 24,299 28,903 38,461
5 years later .................... 8,341 11,217 13,211 19,406 25,793 30,558
6 years later .................... 8,748 11,497 13,792 19,898 26,321
7 years later .................... 8,704 11,760 14,074 20,246
8 years later .................... 8,696 11,902 14,329
9 years later .................... 8,746 11,905
10 years later ................... 8,754
Unpaid Loss and Loss Adjustment
Expenses re-estimated as of End of
Year:
1 year later ..................... 9,535 12,628 15,953 22,056 30,538 38,603 52,670 67,281
2 years later .................... 9,825 12,644 15,712 21,327 30,428 38,016 52,062 66,061
3 years later .................... 9,645 12,424 14,822 21,198 29,648 37,184 51,149 63,872
4 years later .................... 9,437 11,947 14,811 21,118 29,306 36,272 49,805
5 years later .................... 9,053 11,836 14,841 21,399 28,553 35,783
6 years later .................... 8,859 12,060 14,593 21,106 28,370
7 years later .................... 8,770 12,008 14,606 21,013
8 years later .................... 8,783 12,039 14,596
9 years later .................... 8,804 12,039
10 years later ................... 8,804
Cumulative Redundancy
Dollars ........................ $ 1,811 $ 159 $ 1,333 $ 1,235 $ 3,611 $ 2,931 $ 3,790 $ 4,374
Percentage ..................... 17.1% 1.3% 8.4% 5.6% 11.3% 7.6% 7.1% 6.4%
</TABLE>
<TABLE>
<CAPTION>
UNPAID LOSS AND LOSS ADJUSTMENT
EXPENSES, AS STATED 1996 1997 1998
---- ---- ----
<S> <C> <C> <C>
$ 85,723 $108,928 $135,030
Cumulative Paid as of:
1 year later .................... 22,292 26,870
2 years later .................... 38,848
3 years later ....................
4 years later ....................
5 years later ....................
6 years later ....................
7 years later ....................
8 years later ....................
9 years later ....................
10 years later ...................
Unpaid Loss and Loss Adjustment
Expenses re-estimated as of End of
Year:
1 year later ..................... 84,007 105,759
2 years later .................... 81,503
3 years later ....................
4 years later ....................
5 years later ....................
6 years later ....................
7 years later ....................
8 years later ....................
9 years later ....................
10 years later ...................
Cumulative Redundancy
Dollars ........................ $ 4,220 3,170
Percentage ..................... 4.90% 2.9%
</TABLE>
(1) Unpaid loss and loss adjustment expenses differ from the amounts reported
in the Consolidated Financial Statements because of the inclusion therein
of reinsurance receivables of $16,120, $13,502, $10,919, $9,440, $5,580,
$5,539, $1,770, $1,267, $1,672 and $1,591 at December 31, 1998, 1997, 1996,
1995, 1994, 1993, 1992, 1991, 1990, and 1989, respectively.
(2) The Company maintains its historical loss records net of reinsurance and
therefore is unable to conform the presentation of this table to the
financial statements.
9
<PAGE> 10
The cumulative redundancy represents the aggregate change in the reserve
estimated over all prior years, and does not present accident year loss
development. Therefore, each amount in the table includes the effects of changes
in reserves for all prior years.
The unpaid loss and loss adjustment expense of PIIC and PIC, as reported in
their Annual Statements prepared in accordance with statutory accounting
practices and filed with state insurance departments, differ from those
reflected in the Company's financial statements prepared in accordance with
generally accepted accounting principles ("GAAP") with respect to recording the
effects of reinsurance. Unpaid loss and loss adjustment expenses under statutory
accounting practices are reported net of the effects of reinsurance whereas
under GAAP these amounts are reported without giving effect to reinsurance in
accordance with Statement of Financial Accounting Standards ("SFAS") No. 113.
Under GAAP, reinsurance receivables, with a corresponding increase in unpaid
loss and loss adjustment expense, have been recorded. (See footnote (1) on Page
10 for amounts). There is no effect on net income or shareholders' equity due to
the difference in reporting the effects of reinsurance between statutory
accounting practices and GAAP as discussed above.
Operating Ratios
Statutory Combined Ratio
The statutory combined ratio, which is the sum of (a) the ratio of loss and
loss adjustment expenses incurred to net earned premiums (loss ratio) and (b)
the ratio of policy acquisition costs and other underwriting expenses to net
written premiums (expense ratio), is the traditional measure of underwriting
experience for insurance companies. Generally, if the combined ratio is below
100%, an insurance company has an underwriting profit and if it is above 100%,
the insurer has an underwriting loss.
The following table reflects the consolidated loss, expense and combined
ratios of the Insurance Subsidiaries together with the property and casualty
industry-wide combined ratios after policyholders' dividends.
<TABLE>
<CAPTION>
For the Years Ended December 31,
-------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Loss Ratio ........................................... 54.1% 55.3% 55.7% 57.1% 59.5%
Expense Ratio ........................................ 31.0% 29.1% 31.1% 29.6% 29.9%
----- ----- ----- ----- -----
Combined Ratio ....................................... 85.1% 84.4% 86.8% 86.7% 89.4%
===== ===== ===== ===== =====
Industry Combined Ratio after Policyholders" Dividends 104.8% 101.6% 105.8% 106.3% 108.3%
===== ===== ===== ===== =====
(1) (2) (2) (2) (2)
</TABLE>
(1) Source: Best's Review/Preview PC 1999 (Estimated 1998).
(2) Source: Best's Aggregates & Averages, 1998 Edition.
10
<PAGE> 11
Premium-to-Surplus Ratio:
While there are no statutory provisions governing premium-to-surplus
ratios, regulatory authorities regard this ratio as an important indicator as to
an insurer's ability to withstand abnormal loss experience. Guidelines
established by the National Association of Insurance Commissioners (the "NAIC")
provide that an insurer's net premium-to-surplus ratio is satisfactory if it is
below 3 to 1.
The following table sets forth, for the periods indicated, net written
premiums to policyholders' surplus for the Insurance Subsidiaries (statutory
basis):
<TABLE>
<CAPTION>
As of and For the Years Ended December 31,
-----------------------------------------------------------------------------
1998 1997 1996 1995 1994
----------- ----------- ----------- ---------- -----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C>
Net Written Premiums.................. $ 143,036 $ 111,797 $ 83,994 $ 62,072 $ 55,398
Policyholders' Surplus................ $ 152,336 $ 105,985 $ 81,906 $ 67,500 $ 56,027
Premium to Surplus Ratio.............. 1.0 to 1.0 1.0 to 1.0 1.0 to 1.0 .9 to 1.0 1.0 to 1.0
</TABLE>
Investments
The Company's investment objective continues to be the realization of
relatively high levels of investment income while generating competitive
after-tax total rates of return within a prudent level of risk and within the
constraints of maintaining adequate securities in amount and duration to meet
cash requirements of current operations and long-term liabilities, as well as
maintaining and improving the Company's A.M. Best and Standard & Poors' ratings.
The Company utilizes professional investment managers for its fixed maturity and
equity investments, which consist of diversified issuers and issues.
At December 31, 1998, the Company had total investments with a carrying
value of $356.5 million. At December 31, 1998, 79.6% of the Company's total
investments were investment grade fixed maturity securities, including U.S.
treasury securities and obligations of U.S. government corporations and
agencies, obligations of states and political subdivisions, corporate debt
securities, collateralized mortgage securities and asset backed securities. The
collateralized mortgage securities and asset backed securities consist of short
tranche securities possessing favorable pre-payment risk profiles. The remaining
20.4% of the Company's total investments consisted primarily of publicly-traded
common stock securities.
The following table sets forth information concerning the composition of
the Company's total investments at December 31, 1998:
<TABLE>
<CAPTION>
Estimated Percent of
Amortized Market Carrying Carrying
Cost Value Value Value
-------- -------- -------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C>
Fixed Maturities:
Obligations of States and Political
Subdivisions ....................... $112,196 $117,195 $117,195 32.9%
U.S. Treasury Securities and
Obligations of U.S. Government
Corporations and Agencies .......... 7,706 7,918 7,918 2.2
Corporate and Bank Debt Securities .. 69,532 69,391 69,391 19.5
Collateralized Mortgage Securities .. 42,755 42,820 42,820 12.0
Asset Backed Securities ............. 46,368 46,394 46,394 13.0
Equity Securities .................... 43,441 72,768 72,768 20.4
-------- -------- -------- -----
Total Investments .................. $321,998 $356,486 $356,486 100.0%
======== ======== ======== =====
</TABLE>
At December 31, 1998, all of the Insurance Subsidiaries' fixed maturity
securities consisted of U.S. government securities or securities rated "1" or
"2" by the NAIC; the majority of the Company's fixed maturity securities were
rated "A-" or better by Standard & Poor's Corporation.
11
<PAGE> 12
The cost and estimated market value of fixed maturity securities at
December 31, 1998, by remaining original contractual maturity, are set forth
below. Expected maturities may differ from contractual maturities because
certain borrowers have the right to call or prepay obligations, with or without
call or prepayment penalties:
<TABLE>
<CAPTION>
Amortized Cost Estimated Market Value
---------------- ------------------------
(Dollars in Thousands)
<S> <C> <C>
Due in one year or less....................................... $ 10,571 $ 10,737
Due after one year through five years......................... 33,688 34,237
Due after five years through ten years........................ 118,704 123,095
Due after ten years........................................... 26,471 26,435
Collateralized Mortgage and Asset Backed Securities........... 89,123 89,214
------------- --------------
Total.................................................... $ 278,557 $ 283,718
============= ==============
</TABLE>
Investments of the Insurance Subsidiaries must comply with applicable laws
and regulations which prescribe the type, quality and diversification of
investments. In general, these laws and regulations permit investments, with
specified limits and subject to certain qualifications, in federal, state and
municipal obligations, corporate bonds, preferred and common equity securities,
real estate mortgages and real estate.
Regulation
General: Insurance companies are subject to supervision and regulation in
the states in which they transact business. Such supervision and regulation,
designed primarily for the protection of policyholders and not shareholders,
relates to most aspects of an insurance company's business and includes such
matters as authorized lines of business; underwriting standards; financial
condition standards; licensing of insurers; investment standards; premium
levels; policy provisions; the filing of annual and other financial reports
prepared on the basis of Statutory Accounting Practices ("SAP"); the filing and
form of actuarial reports; the establishment and maintenance of reserves for
unearned premiums; losses and loss adjustment expenses; transactions with
affiliates; dividends; changes in control; and a variety of other financial and
non-financial matters. Because the Insurance Subsidiaries are domiciled in
Pennsylvania, the Pennsylvania Department of Insurance (the "Department") has
primary authority over the Company.
Regulation of Insurance Holding Companies: Pennsylvania, like many other
states, has laws governing insurance holding companies (such as Philadelphia
Insurance). Under Pennsylvania law, a person generally must obtain the
Department's approval to acquire, directly or indirectly, 10% or more of the
outstanding voting securities of Philadelphia Insurance or either Insurance
Subsidiary. The Department's determination of whether to approve any such
acquisition is based on a variety of factors, including an evaluation of the
acquiror's financial stability, the competence of its management and whether
competition in Pennsylvania would be reduced.
The Pennsylvania statute requires every Pennsylvania-domiciled insurer
which is a member of an insurance holding company system to register with the
Department by filing and keeping current a registration statement on a form
prescribed by the NAIC.
The Pennsylvania statute also specifies that at least one-third of the
board of directors and each committee thereof, of either the domestic insurer or
its publicly owned holding company (if any), must be comprised of outsiders
(i.e., persons who are neither officers, employees nor controlling shareholders
of the insurer or any affiliate). In addition, the domestic insurer or its
publicly held holding company must establish one or more committees comprised
solely of outside directors, with responsibility for recommending the selection
of independent certified public accountants; reviewing the insurer's financial
condition, the scope and results of the independent audit and any internal
audit; nominating candidates for director; evaluating the performance of
principal officers; and recommending to the board the selection and compensation
of principal officers.
Dividend Restrictions: As an insurance holding company, Philadelphia
Insurance will be largely dependent on dividends and other permitted payments
from the Insurance Subsidiaries to pay any cash dividends to its shareholders.
The ability of the Insurance Subsidiaries to pay dividends to the Company is
subject to Pennsylvania insurance laws, which currently require that dividends
be paid from profits and afford the Department 30 days to disapprove the payment
of "extraordinary dividends" from a domestic property and casualty insurer to
its shareholders (i.e., dividends over a twelve-month period that exceed the
greater of (a) 10% of policyholders' surplus shown on the latest Annual
Statement filed with the Department, or (b) the net income for the period
covered by such statement but in no event to exceed the amount of unassigned
funds (i.e., retained earnings plus or minus net unrealized gains or losses). In
addition, the law specifies factors
12
<PAGE> 13
to be considered by the Department to allow it to determine that policyholders'
surplus after the payment of dividends is reasonable in relation to an insurance
company's outstanding liabilities and adequate to its financial needs. Such
factors include, for example, the size of the company, the extent to which its
business is diversified among several lines of insurance, the number and size of
risks insured, the nature and extent of the company's reinsurance, and the
adequacy of the company's reserves. Accumulated statutory profits of the
Insurance Subsidiaries from which dividends may be paid totaled $80.5 million at
December 31, 1998. Of this amount, the Insurance Subsidiaries are entitled to
pay a total of approximately $17.7 million of dividends in 1999 without
obtaining prior approval from the Department. During the fourth quarter of 1998,
for surplus allocation purposes, PIC paid a $5.5 million dividend to
Philadelphia Insurance which Philadelphia Insurance subsequently contributed to
PIIC.
The National Association of Insurance Commissioners: In addition to
state-imposed insurance laws and regulations, the Insurance Subsidiaries are
subject to the general SAP and reporting formats established by the NAIC. The
NAIC also promulgates model insurance laws and regulations relating to the
financial and operational regulation of insurance companies. These model laws
and regulations generally are not directly applicable to an insurance company
unless and until they are adopted by applicable state legislatures or
departments of insurance. However, NAIC model laws and regulations have become
increasingly important in recent years, due primarily to the NAIC's state
regulatory accreditation program. Under this program, states which have adopted
certain required model laws and regulations and meet various staffing and other
requirements are "accredited" by the NAIC. Such accreditation is the cornerstone
of an eventual nationwide regulatory network and there is a certain degree of
political pressure on individual states to become accredited by the NAIC.
Because the adoption of certain model laws and regulations is a prerequisite to
accreditation, the NAIC's initiatives have taken on a greater level of practical
importance in recent years. The NAIC accredited Pennsylvania under the NAIC
Financial Regulation Standards in March 1994.
All the states have adopted the NAIC's financial reporting form, which is
typically referred to as the NAIC "Annual Statement" and most states, including
Pennsylvania, generally defer to the NAIC with respect to SAP. In this regard,
the NAIC has a substantial degree of practical influence and is able to
accomplish certain quasi-legislative initiatives through amendments to the NAIC
annual statement and applicable accounting practices and procedures. For
instance, in recent years the NAIC has required all insurance companies to have
an annual statutory financial audit and an annual actuarial certification as to
loss reserves by including such requirements within the annual statement
instructions.
Capital and Surplus Requirements: PIC's eligibility to write insurance on a
surplus lines basis in most jurisdictions is dependent on its compliance with
certain financial standards, including the maintenance of a requisite level of
capital and surplus and the establishment of certain statutory deposits. In
recent years, many jurisdictions have increased the minimum financial standards
applicable to surplus lines eligibility. For example, California and certain
other states have adopted regulations which require surplus lines companies
operating therein to maintain minimum capital of $15 million, calculated as set
forth in the regulations. PIC maintains capital to meet these requirements.
Risk-Based Capital: Risk-based capital is designed to measure the
acceptable amount of capital an insurer should have based on the inherent
specific risks of each insurer. Insurers failing to meet this benchmark capital
level may be subject to scrutiny by the insurer's domiciliary insurance
department and ultimately rehabilitation or liquidation. Based on the standards
currently adopted, the policyholders' surplus at December 31, 1998 is in excess
of the prescribed risk-based capital requirements.
Insurance Guaranty Funds: The Insurance Subsidiaries are subject to
guaranty fund laws which can result in assessments, up to prescribed limits, for
losses incurred by policyholders as a result of the impairment or insolvency of
unaffiliated insurance companies. Typically, an insurance company is subject to
the guaranty fund laws of the states in which it conducts insurance business;
however, companies which conduct business on a surplus lines basis in a
particular state are generally exempt from that state's guaranty fund laws.
During the five years ended December 31, 1998, the amount of such guaranty fund
assessments paid by the Company was not material.
Shared Markets: As a condition of its license to do business in various
states, PIIC is required to participate in mandatory property-liability shared
market mechanisms or pooling arrangements which provide various insurance
coverages to individuals or other entities that otherwise are unable to purchase
coverage voluntarily provided by private insurers. In addition, some states
require automobile insurers to participate in reinsurance pools for claims that
exceed a certain amount. PIIC's participation in such shared markets or pooling
mechanisms is generally in amounts related to the amount of PIIC's direct
writings for the type of coverage written by the specific pooling mechanism in
the applicable state.
Possible New Legislation, Regulations or Interpretations: New regulations
and legislation have been (and are being) proposed from time to time to limit
damage awards; to bring the industry under regulation by the federal government;
to control premiums, policy terminations and other policy terms; and to impose
new taxes and assessments. It is not possible
13
<PAGE> 14
to determine whether any of these proposals will be adopted in any jurisdictions
and, if so, in what form or in what jurisdictions. In addition, the Company
could be affected by interpretations of state insurance regulators with respect
to licensing requirements applicable to the product distribution method
currently utilized by the rent a car companies that are customers of the
Company. The impact of these initiatives on the Company can not be determined.
Competition
The commercial property and casualty insurance industry is highly
competitive. Many of the Company's existing and potential competitors are
larger, have considerably greater financial and other resources, have greater
experience in the insurance industry and offer a broader line of insurance
products than the Company. Not only does the Company compete with other
insurers, it also competes with new forms of insurance organizations such as
risk retention groups and self-insurance mechanisms.
Overall, due to the abundance of capital in the insurance industry, the
current business climate remains competitive from a solicitation and pricing
standpoint. In the context of the current environment, the Company will not
sacrifice pricing guidelines for premium volume and will "walk away", if
necessary, from writing business that does not meet established underwriting
standards and pricing guidelines. Management believes, though, that the
Company's mixed marketing strategy is a strength in this market environment, in
that it provides the flexibility to quickly deploy the marketing efforts of the
Company's direct production underwriters from soft market segments to market
segments with emerging opportunities. Additionally, through the mixed marketing
strategy, the Company's production underwriters have established relationships
with approximately 4,000 brokers, thus facilitating a regular flow of
submissions.
Employees
As of February 26, 1999, the Company had 386 full-time employees and 13
part-time employees. The Company actively encourages its employees to continue
their educational efforts and aids in defraying their educational costs
(including 100% of education costs related to the insurance industry).
Management believes that the Company's relations with its employees are
generally excellent.
Item 2. DESCRIPTION OF PROPERTY
The Company leases certain office space in Bala Cynwyd, PA which serves as
its headquarters location and also leases 40 field offices for its field
marketing organization. The Company sold its previous headquarters building
in Wynnewood, PA for proceeds of approximately $2.0 million during 1998.
Item 3. LEGAL PROCEEDINGS
The Company is not subject to any material pending legal proceedings other
than ordinary routine litigation incidental to its business.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of 1998.
14
<PAGE> 15
PART II
Item 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
MATTERS
During the fourth quarter of 1998, the Company did not sell any of its
securities which were not registered under the Securities Act of 1933.
The Company's common stock, no par value, trades on The NASDAQ Stock Market
under the symbol "PHLY". As of February 23, 1999, there were 272 holders of
record and 1,180 beneficial shareholders of the Company's common stock. The
high and low sales prices of the common stock, as reported by the National
Association of Securities Dealers, were as follows:
<TABLE>
<CAPTION>
1998 1997(1)
----------------------------- -----------------------------
Quarter High Low High Low
------------ ------------- ------------ -------------
<S> <C> <C> <C> <C>
First 21.750 16.750 15.000 11.250
Second 24.375 20.000 17.563 14.000
Third 23.000 18.625 23.250 16.500
Fourth 23.688 19.375 23.000 15.688
</TABLE>
(1) 1997 First, Second, and Third Quarters restated to reflect a two-for-one
split of the Company's common stock distributed in November 1997.
The Company did not declare cash dividends on its common stock in 1998 and
1997, and currently intends to retain its earnings to enhance future
growth. The payment of dividends by the Company will be determined by the
Board of Directors and will be based on general business conditions and
legal and regulatory restrictions.
As a holding company, the Company is dependent upon dividends and other
permitted payments from its subsidiaries to pay any cash dividends to its
shareholders. The ability of the Company's insurance subsidiaries to pay
dividends to the Company is subject to regulatory limitations (see Note 2
to the Consolidated Financial Statements).
15
<PAGE> 16
Item 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
As of and For the Years Ended December 31,
-----------------------------------------------------------------------------
(In Thousands, Except Share and Per Share Data)
1998 1997 1996 1995 1994
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Operations Statement Data:
Gross Written Premiums ................... $ 197,408 $ 159,091 $ 136,855 $ 104,180 $ 89,099
Gross Earned Premiums .................... $ 174,737 $ 150,128 $ 121,820 $ 99,507 $ 84,657
Net Written Premiums ..................... $ 143,036 $ 111,797 $ 83,994 $ 62,072 $ 55,398
Net Earned Premiums ...................... $ 122,687 $ 100,555 $ 72,050 $ 58,188 $ 52,085
Net Investment Income .................... 15,448 9,703 7,910 6,506 4,902
Net Realized Investment Gain (Loss) ...... 474 (16) 260 181 (1,697)
Other Income ............................. 219 228 282 309 314
- --------------------------------------------------------------------------------------------------------------------------
Total Revenue ....................... 138,828 110,470 80,502 65,184 55,604
- --------------------------------------------------------------------------------------------------------------------------
Net Loss and Loss Adjustment
Expenses .............................. 66,374 55,009 40,118 33,227 31,009
Acquisition Costs and Other
Underwriting Expenses ................. 38,422 31,344 22,210 17,105 15,541
Other Operating Expenses ................. 2,212 1,909 1,386 2,564 1,347
- --------------------------------------------------------------------------------------------------------------------------
Total Losses and Expenses ........... 107,008 88,262 63,714 52,896 47,897
- --------------------------------------------------------------------------------------------------------------------------
Minority Interest: Distributions on
Company Obligated Mandatorily
Redeemable Preferred Securities of
Subsidiary Trust ...................... 4,770
- --------------------------------------------------------------------------------------------------------------------------
Income Before Income Taxes ............... 27,050 22,208 16,788 12,288 7,707
Total Income Tax Expense ............ 7,022 5,338 3,414 2,458 1,734
- --------------------------------------------------------------------------------------------------------------------------
Net Income .......................... $ 20,028 $ 16,870 $ 13,374 $ 9,830 $ 5,973
- --------------------------------------------------------------------------------------------------------------------------
Weighted-Average Common Shares
Outstanding (1) ....................... 12,249,262 12,193,659 11,879,506 11,627,702 11,627,702
Weighted-Average Share Equivalents
Outstanding (1) ....................... 2,680,165 2,736,039 2,373,742 2,049,004 1,647,902
- --------------------------------------------------------------------------------------------------------------------------
Weighted-Average Shares and Share
Equivalents Outstanding (1) ........... 14,929,427 14,929,698 14,253,248 13,676,706 13,275,604
- --------------------------------------------------------------------------------------------------------------------------
Basic Earnings Per Share (1)(2) .......... $ 1.63 $ 1.38 $ 1.13 $ 0.85 $ 0.51
- --------------------------------------------------------------------------------------------------------------------------
Diluted Earnings Per Share(1)(2) ......... $ 1.34 $ 1.13 $ 0.94 $ 0.72 $ 0.45
- --------------------------------------------------------------------------------------------------------------------------
Year End Financial Position:
Total Investments and Cash
and Cash Equivalents ................ $ 388,059 $ 229,599 $ 180,061 $ 140,086 $ 105,720
Total Assets .......................... 469,198 288,126 225,938 174,148 140,718
Unpaid Loss and Loss Adjustment
Expenses ............................ 151,150 122,430 96,642 77,686 59,175
Minority Interest in Consolidated
Subsidiaries: ....................... 98,905
Total Shareholders' Equity ............ 137,483 111,284 85,642 68,316 52,600
Common Shares Outstanding(1) .......... 12,200,563 12,242,431 12,079,612 11,627,702 11,627,702
- --------------------------------------------------------------------------------------------------------------------------
Insurance Operating Ratios
(Statutory Basis):
Net Loss and Loss Adjustment
Expenses to Net Earned Premiums ..... 54.1% 55.3% 55.7% 57.1% 59.5%
Underwriting Expenses to Net
Written Premiums .................... 31.0% 29.1% 31.1% 29.6% 29.9%
- --------------------------------------------------------------------------------------------------------------------------
Combined Ratio ........................... 85.1% 84.4% 86.8% 86.7% 89.4%
==========================================================================================================================
A.M. Best Rating ......................... A+ A A A A
(Superior) (Excellent) (Excellent) (Excellent) (Excellent)
</TABLE>
(1) 1996, 1995, and 1994 restated to reflect a two-for-one split of the
Company's common stock distributed in November 1997.
(2) 1996, 1995, and 1994 earnings per share amounts restated in accordance with
the provisions of SFAS No. 128 adopted as of December 31, 1997.
16
<PAGE> 17
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
Operations
1998 marked the fifth anniversary for the Company as a publicly traded entity.
During this five-year period, gross written premiums increased from $57.1
million to $197.4 million, the GAAP basis combined ratio (the sum of the net
loss and loss adjustment expenses and acquisition costs and other underwriting
expenses divided by net earned premiums) averaged 86.4%, and the net operating
income compound annual growth rate was 42.1%. The Company believes these
achievements are primarily due to its continued focus on generating underwriting
profits through conservative underwriting and pricing discipline, its
differentiation in the marketplace through development of value-added coverage
and service enhancements, and its multiple channels of distribution.
1998 was a year in which the Company not only continued to realize profitable
growth, but also built upon its existing franchise foundation. For 1998, the
Company reported net income of $20.0 million, an 18.3% increase over its net
income of $16.9 for 1997. This increase was principally due to a 24.1% increase
in gross written premiums, a 58.8% increase in net investment income and
profitable underwriting which resulted in an 85.4% GAAP basis combined ratio,
which, once again, is substantially lower than the commercial property and
casualty insurance industry as a whole.
The Company's gross written premium growth during the year was attributable to a
number of factors, including: the continued growth and strengthening of the
Company's field marketing organization from 100 professionals at year end 1997
to 160 at year end 1998 and the addition of two new field offices; the addition
of a Specialty Property and Inland Marine underwriting organization which brings
a new line of business to the Company; increased product distribution through
the Preferred Agent Program by the addition of 18 new Preferred Agent
relationships; and new product offerings. Additionally, the 58.8% growth in net
investment income was due to the 63.8% increase in total investments during
1998. This growth in total investments was primarily due to investing the
proceeds of the Company's FELINE PRIDES(SM) security offering.
During 1998, the Company completed a $103.5 million FELINE PRIDES(SM) security
offering, thereby adding new capital to the Company. The Company intends to use
the proceeds from this security offering for general corporate purposes, which
may include acquisitions (including, without limitation, acquisitions of
programs or books of business), capital expenditures, capital contributions, and
the repurchase by the Company of its common stock. From these proceeds, $33.1
million was contributed to the Company's subsidiaries, of which, $20.0 million
was contributed to the Company's insurance subsidiaries to support anticipated
growth. Additionally, $3.1 million was utilized to buy back the Company's common
stock, under a stock buy-back program of up to $10.0 million authorized by the
Company's Board of Directors.
The Company's insurance subsidiaries are rated "A+" (Superior) by A.M. Best
Company and have been assigned an "A" claims paying ability rating by Standard &
Poors'.
Investments
The Company's investment objective continues to be the realization of relatively
high levels of investment income while generating competitive after-tax total
rates of return within a prudent level of risk and within the constraints of
maintaining adequate securities in amount and duration to meet cash requirements
of current operations and long-term liabilities, as well as maintaining and
improving the Company's A.M. Best and Standard & Poors' ratings. The Company
utilizes professional investment managers for its fixed maturity and equity
investments. These investments consist of diversified issuers and issues, and as
of December 31, 1998 approximately 73% of the total invested assets (total
investments plus cash equivalents) consisted of investments in fixed maturity
securities.
The Company increased its existing portfolio of fixed maturity securities by
predominately investing in investment grade taxable fixed maturity securities
during 1998 due to the more favorable after-tax yields as compared to tax-exempt
fixed maturity securities. At the end of 1998, investment grade taxable fixed
maturity securities represented 51.5% of the total invested assets, compared to
35.7% as of the end of 1997. The Company has also continued to invest in common
stock of quality growth-oriented mid-and large-cap companies seeking to achieve
diversification and capital appreciation in its invested assets. At December 31,
1998, common stocks comprised 18.8% of invested assets, compared to 20.9% as of
the end of 1997.
17
<PAGE> 18
The Company increased its existing portfolio of collateralized mortgage and
asset backed securities during 1998 in order to realize more favorable after-tax
yields. Collateralized mortgage and asset backed securities amounted to $42.8
million and $46.4 million, respectively, as of December 31, 1998 and $7.3 and
$11.3, respectively, as of December 31 1997. These securities are short tranche
securities possessing favorable prepayment risk profiles. The Company had no
derivative financial instruments.
RESULTS OF OPERATIONS
(1998 versus 1997)
Premiums: Gross written premiums grew $38.3 million (24.1%) to $197.4 million in
1998 from $159.1 million in 1997; gross earned premiums grew $24.6 million
(16.4%) to $174.7 million in 1998 from $150.1 million in 1997; net written
premiums increased $31.2 million (27.9%) to $143.0 million in 1998 from $111.8
million in 1997; and net earned premiums grew $22.1 million (22.0%) to $122.7
million in 1998 from $100.6 million in 1997. The overall growth in premiums are
attributable to a number of factors including:
- - Expansion of marketing efforts relating to commercial auto, commercial
package, and specialty lines products through the increase in the Company's
field organization to a total of 160 professionals.
- - The continued development and growth of the Company's Preferred Agent
Program (18 new preferred relationships formed in 1998), initiated in 1996,
wherein business relationships are formed with brokers specializing in
certain of the Company's business niches, thereby increasing the
distribution of the Company's niche products.
- - The addition of a new Specialty Property and Inland Marine underwriting
organization during the fourth quarter of 1998 as well as several other new
programs during the year.
Overall premium growth has been offset in part by the loss of accounts in
certain market niches due to inadequate pricing levels being experienced as a
result of market competition. Consistent with its underwriting focus, the
Company has maintained pricing levels for its insurance products reflective of
its underwriting assessment. As a result, loss in premium writings will occur
due to inadequate pricing levels.
Net Investment Income: Net investment income approximated $15.4 million in 1998
and $9.7 million in 1997. Total investments grew to $356.5 million at December
31, 1998 from $217.7 million at December 31, 1997, primarily due to investing
the proceeds from the Company's FELINE PRIDES(SM) security offering and cash
flows provided from operating activities.
Net Loss and Loss Adjustment Expenses: Net loss and loss adjustment expenses
increased $11.4 million (20.7%) to $66.4 million in 1998 from $55.0 million in
1997 and the loss ratio decreased to 54.1% in 1998 from 54.7% in 1997. The
increase in net loss and loss adjustment expenses was due primarily to the 22.0%
growth in net earned premiums.
Acquisition Costs and Other Underwriting Expenses: Acquisition costs and other
underwriting expenses increased $7.1 million (22.7%), to $38.4 million in 1998
from $31.3 million in 1997. This increase was due primarily to the 22.0% growth
in net earned premiums.
Income Tax Expense: The Company's effective tax rates for 1998 and 1997 were
26.0% and 24.0%, respectively. The effective rates differed from the 35%
statutory rate principally due to investments in tax-exempt securities. The
increase in the effective tax rate is principally due to a greater investment of
cash flows in taxable securities relative to tax-exempt securities and greater
net investment gains on the sale of securities in 1998 vs. 1997.
RESULTS OF OPERATIONS
(1997 versus 1996)
Premiums: Gross written premiums grew $22.2 million (16.2%) to $159.1 million in
1997 from $136.9 million in 1996; gross earned premiums grew $28.3 million
(23.2%) to $150.1 million in 1997 from $121.8 million in 1996; net written
premiums increased $27.8 million (33.1%) to $111.8 million in 1997 from $84.0
million in 1996; and net earned premiums
18
<PAGE> 19
grew $28.5 million (39.5%) to $100.6 million in 1997 from $72.1 million in 1996.
The overall growth in premiums and the varying growth rates for gross written
premiums, gross earned premiums, net written premiums and net earned premiums
are attributable to a number of factors including:
- - Overall premium growth is primarily attributable to: continued marketing
efforts relating to commercial auto, commercial package, and specialty
lines products, along with the continued development of the Company's
Preferred Agent Program, initiated in 1996, wherein business relationships
are formed with brokers specializing in certain of the Company's business
niches, thereby increasing the distribution of the Company's niche
products; the increase of the Company's proprietary field organization to a
total of 100 professionals, production underwriters and customer service
representatives.
- - Net written and net earned premiums grew at higher rates than gross written
and gross earned premiums, primarily due to the renegotiation of the
Company's reinsurance program effective January 1, 1997, whereby more
favorable reinsurance rates were realized while substantially the same
retentions and coverages were maintained.
Net Investment Income: Net investment income approximated $9.7 million in 1997
and $7.9 million in 1996. The increase of $1.8 million (22.8%) is due primarily
to the increase in total investments as a result of cash flows provided from
operating activities and the additional investment income as a result of the
relative percentage increase in corporate taxable securities versus tax exempt
municipal securities.
Net Loss and Loss Adjustment Expenses: Net loss and loss adjustment expenses
increased $14.9 million (37.2%) to $55.0 million in 1997 from $40.1 million in
1996 and the loss ratio decreased to 54.7% in 1997 from 55.7% in 1996. The
increase in net loss and loss adjustment expenses was due primarily to the 39.5%
growth in net earned premiums. Additionally, since more earned premium was
retained from the lower cost of reinsurance (see "Premiums", above), and there
was relatively higher net earned premium growth on products with low loss
experience, the 37.2% increase in net loss and loss adjustment expenses was
lower than the 39.5% net earned premium growth.
Acquisition Costs and Other Underwriting Expenses: Acquisition costs and other
underwriting expenses increased $9.1 million (41.0%), to $31.3 million in 1997
from $22.2 million in 1996. This increase was due primarily to the 39.5% growth
in net earned premiums.
Income Tax Expense: The Company's effective tax rates for 1997 and 1996 were
24.0% and 20.3%, respectively. The effective rates differed from the 35%
statutory rate principally due to investment income earned on tax-exempt
securities. The increase in the effective tax rate is principally due to a
greater investment in taxable securities relative to tax-exempt securities
during 1997.
GROWTH OPPORTUNITIES
The attainment of profitable new business continues to be a primary focus of the
Company. During the fourth quarter of 1998, the Company added a new Specialty
Property and Inland Marine underwriting organization which specializes in large
property risks and all classes of inland marine insurance. The Company also
anticipates growing its Preferred Agent Program, thereby further increasing the
distribution of the Company's niche products. In addition, the Company has grown
its field organization during 1998 to 160 professionals, including production
underwriters and customer service representatives, and plans to further expand
this organization in 1999, thereby further strengthening its resources to
prospect the Company's existing niches for profitable new business. The Company
also seeks acquisition opportunities to purchase programs or books of business
which complement its niche markets or parallel its conservative underwriting and
pricing discipline. The Company is exploring opportunities in this regard.
Overall, due to the abundance of capital in the insurance industry, the current
business climate remains very competitive from a solicitation and pricing
standpoint. In the context of the current environment, the Company will not
sacrifice underwriting standards or pricing guidelines solely for premium volume
and will "walk away", if necessary, from writing business that does not meet
established underwriting standards and pricing guidelines, as has occurred in
the commercial auto niche over the past three years and in the Company's nursing
home commercial package product during the fourth quarter of 1998. Management
believes, though, that the Company's mixed marketing strategy is a strength in
this market environment, in that it provides the flexibility to quickly deploy
the marketing efforts of the Company's direct production underwriters from soft
market segments to market segments with emerging opportunities. Additionally,
through the mixed marketing strategy, the
19
<PAGE> 20
Company's production underwriters have established relationships with
approximately 4,000 brokers, thus facilitating a regular flow of submissions.
LIQUIDITY AND CAPITAL RESOURCES
Philadelphia Consolidated Holding Corp. (PCHC) is a holding company whose
principal assets currently consist of 100% of the capital stock of the Insurance
Subsidiaries (Philadelphia Indemnity Insurance Company and Philadelphia
Insurance Company), Maguire Insurance Agency, Inc., and PCHC Investment Corp.
Its primary sources of funds are dividends from its subsidiaries and payments to
it pursuant to tax allocation agreements with the Insurance Subsidiaries. For
the year ended December 31, 1998, payments to PCHC pursuant to such tax
allocation agreements totaled $9.3 million. The payment of dividends to PCHC
from the Insurance Subsidiaries is subject to certain limitations imposed by the
insurance laws of the Commonwealth of Pennsylvania. Accumulated statutory
profits of the Insurance Subsidiaries from which dividends may be paid totaled
$80.5 million at December 31, 1998. Of this amount, the Insurance Subsidiaries
are entitled to pay a total of approximately $17.7 million of dividends in 1999
without obtaining prior approval from the Insurance Commissioner of the
Commonwealth of Pennsylvania. During the fourth quarter of 1998, for surplus
allocation purposes, Philadelphia Insurance Company paid a $5.5 million dividend
to PCHC which PCHC subsequently contributed to Philadelphia Indemnity Insurance
Company.
On May 4, 1998, the consolidated capitalization of the Company increased by
approximately $99.0 million from the sale of FELINE PRIDES(SM) and Trust
Preferred securities. The sales of FELINE PRIDES(SM) consisted of 9,350,000
units of Income Prides with a stated amount of $10.00, 1,000,000 units of Growth
Prides with a face amount equal to the stated amount, and 1,000,000 units of
separate Trust Preferred securities with a stated amount of $10.00. $33.1
million from the sale of these securities was contributed to the Company's
subsidiaries, of which, $20.0 million was contributed to the Insurance
Subsidiaries. Additionally, $3.1 million was utilized by the Company to buy back
its common stock under its stock buy-back program. The Company anticipates using
the remaining proceeds for general corporate purposes, which may include
acquisitions (including, without limitation, acquisitions of programs or books
of business), capital expenditures, additional capital contributions to its
subsidiaries and the repurchase by the Company of its common stock. The Company
is obligated to make cash distributions, commencing May 4, 1998 through May 15,
2001, at a rate of 7.0% of the stated amount per annum for the Income Prides and
the separate Trust Preferred securities and contract adjustment payments at the
rate of .50% per annum of the $10.00 stated amount to the holders of the Growth
Prides.
Under certain reinsurance agreements, the Company is required to maintain
investments in trust accounts to secure its reinsurance obligations (primarily
the payment of losses and loss adjustment expenses on business it does not write
directly). At December 31, 1998, the investment and cash balances in such trust
accounts totaled approximately $11.2 million. In addition, various insurance
departments of states in which the Company operates require the deposit of funds
to protect policyholders within those states. At December 31, 1998, the balance
on deposit for the benefit of such policyholders totaled approximately $11.0
million.
The Company has produced net cash from operations of $49.8 million in 1998,
$38.0 million in 1997 and $37.6 million in 1996. Management believes that the
Company has adequate liquidity to pay all claims and meet all other cash needs.
The Insurance Subsidiaries, which operate under a pooling agreement, must have
certain levels of policyholders' surplus to support premium writings. Guidelines
of the National Association of Insurance Commissioners (the "NAIC") suggest that
a property and casualty insurer's ratio of annual statutory net premium written
to policyholders' surplus should not exceed 3-to-1. The ratio of combined annual
statutory net premium written by the Insurance Subsidiaries to their combined
policyholders' surplus was 1.0-to-1.0 for 1998 and 1997. Management believes
that the policyholders' surplus, which was $152.3 million at December 31, 1998,
will be sufficient to support current and anticipated premium writings.
Risk-based capital is designed to measure the acceptable amount of capital and
surplus an insurer should have, based on the inherent specific risks of each
insurer. Insurers failing to meet this benchmark level may be subject to
scrutiny by the insurer's domiciliary insurance department and ultimately
rehabilitation or liquidation. Based on the standards currently contained in the
applicable Pennsylvania Insurance Company statutes, the Insurance Subsidiaries'
capital and surplus is in excess of the prescribed risk-based capital
requirements.
20
<PAGE> 21
Year 2000 Readiness Disclosure
Background
In the past, many computer software programs were written utilizing two digits
rather than four in defining a year in the date field. As a result,
date-sensitive computer software and embedded technology may recognize the year
"00" in the date field as the year 1900 rather than 2000. This inability of
computer hardware, software, and other technology to distinguish between the
year 1900 and 2000 is generally referred to as the Year 2000 issue. If this
situation occurs, the potential exists for computer systems and equipment
failures or erroneous calculations by computer programs and embedded technology
in the year 2000.
Approach
The Company has established a Year 2000 oversight committee comprised of certain
senior officers and internal audit personnel to develop a comprehensive approach
with regard to the Company's assessment and mitigation of the Year 2000 issue.
To date, this approach has included the establishment of a Year 2000 task force
comprised principally of various information technology personnel under the
direction of the Company's Information Technology Vice President. The task force
has been meeting on a regularly scheduled basis to assess the Company's
readiness with regard to the Year 2000 issue. The task force has divided the
Year 2000 project into three main sections: "IT Systems", which encompasses the
Company's hardware and software (operating and application); "Non-IT Systems",
which encompasses embedded technology and microprocessors contained in
telecommunications and facilities management systems and other equipment; and
"Third Parties", which encompasses the Company's major vendors, suppliers and
customers.
The general phases to the task force's approach are:
Phase 1 Inventorying Year 2000 items;
Phase 2 Prioritizing identified items;
Phase 3 Assessing the Year 2000 Compliance of the items
determined to be material to the Company;
Phase 4 Creating a project plan to address material items
that are determined not to be Year 2000 compliant;
Phase 5 Executing the project plan, which includes repairing,
replacing or upgrading of such items;
Phase 6 Testing the material items.
Status
With respect to the "IT Systems" and "Non-IT Systems" sections, Phases 1 - 5
have been completed and Phase 6 is currently in process. The Company expects to
have substantially all "IT Systems" and "Non-IT Systems" Year 2000 issues
mitigated by March 31, 1999. With respect to the "Third Parties" section, the
Company has identified and prioritized its critical vendors, suppliers and
customers and communicated with them about their plans in addressing the Year
2000 problem. Evaluations of certain of the most critical vendors are in process
and the "Third Party" section is expected to be completed by June 30, 1999.
Costs
The total cost associated with required modifications to become Year 2000
compliant is not expected to have a material effect on the Company's operations
or financial condition. The estimated total cost to the Company of the Year 2000
project is approximately $125,000. The total amount expended on the project
through December 31, 1998 was approximately $115,000, which related primarily to
the "IT Systems" and "Non-IT Systems" section. This amount came from the
Company's operating funds.
21
<PAGE> 22
The estimated cost of the Company's Year 2000 efforts and the dates on which the
Company believes it will complete the various phases referred to above are based
on management's best estimates using various assumptions regarding future
events, including the continued availability of certain resources, third-party
remediation plans and other matters. There can be no assurance that these
estimates will prove to be accurate, and actual results could differ from those
currently anticipated. Specific factors that could cause such differences
include the availability and costs of personnel trained in Year 2000 issues, the
ability to identify, assess, remediate, and test all relevant computer codes and
embedded technology, the risk that reasonable testing will not uncover all Year
2000 problems and similar uncertainties.
Risk Factors
The Company utilizes computer systems in virtually all aspects of its business.
The Company also maintains relationships with a number of vendors, suppliers,
and customers whose own state of readiness with regard to the Year 2000 issue
could potentially impact the Company. These parties include software, hardware,
and telecommunication providers; banks and investment brokers; reinsurers and
reinsurance intermediaries; certain agents; and utilities. The failure to
correct a material Year 2000 issue by the Company or a material "Third Party"
could materially and adversely impact the Company's statement of operations,
liquidity; and financial position. Due to the uncertainty inherent in the Year
2000 issue, the Company is unable to determine whether the consequences of Year
2000 failures will have a material impact on the Company's statement of
operations, liquidity, or financial position. However, the Company believes with
its completion of its Year 2000 project significant interruptions of operations
should be reduced.
Additionally, the Company issues professional liability, including Directors &
Officers liability, and commercial multi-peril insurance policies. Coverage
under certain of these policies may cover losses suffered by insureds as a
result of Year 2000 issues. The Company's professional liability policies are
written on a "claims made and reported" basis, and since early 1997
approximately 50% of such policies have included a Year 2000 exclusion
endorsement. The Company is including a Year 2000 exclusion endorsement on
virtually all new or renewing professional liability policies providing coverage
effective January 1, 1999 and thereafter. On occasion, for qualifying accounts,
underwriters may remove the exclusion after satisfactory receipt and review of a
supplemental application (which includes a warranty statement) and other
underwriting information. With respect to its commercial multi-peril policies
the Company believes claims against the comprehensive general liability coverage
under these policies should fail based upon the doctrine of fortuity.
However, it is not possible to predict whether or to what extent coverage could
ultimately be found to exist by the courts and the effect thereof on the
Company. Additionally, the Company could incur expense to contest the assertion
of Year 2000 coverage claims, even if the Company prevails in its position. As a
result, it is impossible to predict what, if any, exposure insurance companies
may ultimately have for Year 2000 claims whether coverage for the issue is
specifically excluded or included.
Contingency Plans
The Company has not established contingency plans for non-compliance of its "IT
Systems" or "Non-IT Systems" since the Company anticipates that the "IT Systems"
and "Non-IT Systems" sections will be Year 2000 compliant by March 31, 1999. The
Company's review of the "Third Parties" section will be completed by June 30,
1999. Presently, the Company is not aware of any major "Third Party" problem.
The Company is on schedule with its expected completion dates for all sections.
To the extent that the Company is aware of a non-compliant material "Third
Party" a contingency plan would be developed which would potentially include
replacing non-compliant material "Third Party" vendors and suppliers.
INFLATION
Property and casualty insurance premiums are established before the amount of
losses and loss adjusted expenses, or the extent to which inflation may affect
such amounts, is known. The Company attempts to anticipate the potential impact
of inflation in establishing its premiums and reserves. Substantial future
increases in inflation could result in future increases in interest rates,
which, in turn, are likely to result in a decline in the market value of the
Company's investment portfolio and resulting unrealized losses and/or reductions
in shareholders' equity.
22
<PAGE> 23
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which is effective for all fiscal years
beginning after June 15, 1999. SFAS No. 133 requires that an entity shall
recognize all derivative instruments in the statement of financial position as
either assets or liabilities depending on the rights or obligations under the
instrument. Furthermore, derivative instruments shall be measured at fair value.
SFAS No. 133 also provides guidance for accounting for changes in the fair value
(that is, gains or losses) of a derivative instrument. The Company will adopt
the provisions of SFAS No. 133 as of January 1, 2000. At December 31, 1998 the
Company held no derivative financial instruments.
In December 1997, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accounts issued Statement of Position (SOP) 97-3
"Accounting by Insurance and Other Enterprises for Insurance-Related
Assessments," specifying the preferable accounting treatment for entities that
are subject to guaranty-fund and other insurance-related assessments. The
Company will adopt the provisions of SOP 97-3 in the first quarter of 1999 and
does not expect a material impact on the Company's financial statements.
FORWARD-LOOKING INFORMATION
Certain information included in this report and other statements or materials
published or to be published by the Company are not historical facts but are
forward-looking statements relating to such matters as anticipated financial
performance, business prospects, technological developments, new and existing
products, expectations for market segment and growth, the impact of Year 2000
issues, and similar matters. In connection with the "safe harbor" provisions of
the Private Securities Litigation Reform Act of 1995, the Company provides the
following cautionary remarks regarding important factors which, among others,
could cause the Company's actual results and experience to differ materially
from the anticipated results or other expectations expressed in the Company's
forward-looking statements. The risks and uncertainties that may affect the
operations, performance, development, results of the Company's business, and the
other matters referred to above include, but are not limited to: (i) changes in
the business environment in which the Company operates, including inflation and
interest rates; (ii) changes in taxes, governmental laws, and regulations; (iii)
competitive product and pricing activity; (iv) difficulties of managing growth
profitably; and (v) the impact of Year 2000 issues, including the matters
referred to above under "Risk Factors".
23
<PAGE> 24
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The table below provides information about the Company's financial instruments
that are sensitive to changes in interest rates. The Company does not have any
derivative financial instruments. For debt obligations, the table presents
principal cash flows and related weighted average interest rates by expected
maturity dates. The information is presented in U.S. dollar equivalents, which
is the Company's reporting currency.
DECEMBER 31, 1998
EXPECTED MATURITY DATES
(Dollars in thousands, except average interest rate)
<TABLE>
<CAPTION>
TOTAL
FAIR
1999 2000 2001 2002 2003 Thereafter TOTAL VALUE
------- ------- ------- ------- ------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
FIXED MATURITIES
AVAILABLE FOR SALE:
Principal Amount $27,070 $19,060 $37,900 $36,830 $25,470 $121,230 $267,560 $281,830
Book Value $27,160 $19,250 $38,150 $37,460 $25,690 $128,980 $276,690
Average Interest Rate 6.71% 6.10% 6.37% 5.95% 6.38% 6.08% 6.20% 5.71%
PREFERRED:
Principal Amount $ 30 0.0 0.0 0.0 0.0 0.0 $ 30 $ 1,880
Book Value $ 1,870 0.0 0.0 0.0 0.0 0.0 $ 1,870
Average Interest Rate 7.57% 0.0 0.0 0.0 0.0 0.0 7.57% 7.52%
SHORT-TERM DEBT:
Principal Amount $31,650 0.0 0.0 0.0 0.0 0.0 $ 31,650 $ 31,570
Book Value $31,570 0.0 0.0 0.0 0.0 0.0 $ 31,570
Average Interest Rate 4.92% 0.0 0.0 0.0 0.0 0.0 4.92% 4.92%
</TABLE>
24
<PAGE> 25
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Philadelphia Consolidated Holding Corp. and Subsidiaries
Index to Financial Statements and Schedules
<TABLE>
<CAPTION>
Financial Statements Page
-------------------- ----
<S> <C>
Report of Independent Accountants 26
Consolidated Balance Sheets - As of December 31, 1998 and 1997 27
Consolidated Statements of Operations - For the Years Ended December 31,
1998, 1997 and 1996 28
Consolidated Statements of Comprehensive Income - For the Years Ended
December 31, 1998, 1997, and 1996 29
Consolidated Statements of Changes in Shareholders' Equity - For the Years Ended
December 31, 1998, 1997 and 1996 30
Consolidated Statements of Cash Flows - For the Years Ended December 31,
1998, 1997 and 1996 31
Notes to Consolidated Financial Statements 32 - 44
Financial Statement Schedules:
Schedule
I Summary of Investments - Other Than Investments in
Related Parties As of December 31, 1998 S-1
II Condensed Financial Information of Registrant As of December
31, 1998 and 1997 and For Each of the Three
Years in the Period Ended December 31, 1998 S-2 -- S-4
IV Reinsurance For the Years ended December 31, 1998,
1997 and 1996 S-5
VI Supplemental Information Concerning Property-
Casualty Insurance Operations As of and For the Years Ended
December 31, 1998, 1997 and 1996 S-6
</TABLE>
25
<PAGE> 26
To the Board of Directors and Shareholders of Philadelphia Consolidated Holding
Corp.:
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations, comprehensive income, changes in
shareholders' equity and cash flows present fairly, in all material respects,
the financial position of Philadelphia Consolidated Holding Corp. and
Subsidiaries at December 31, 1998 and 1997, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1998, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ PricewaterhouseCoopers, LLP
2400 Eleven Penn Center
Philadelphia, Pennsylvania
February 5, 1999
26
<PAGE> 27
PHILADELPHIA CONSOLIDATED HOLDING CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
As of December 31,
-----------------------
1998 1997
--------- ---------
<S> <C> <C>
ASSETS
Investments:
Fixed Maturities Available for Sale at Market
(Amortized Cost $278,557 and $165,052) ............................ $ 283,718 $ 170,678
Equity Securities at Market (Cost $43,441 and $29,501) ............... 72,768 46,988
--------- ---------
Total Investments ............................................... 356,486 217,666
Cash and Cash Equivalents .............................................. 31,573 11,933
Accrued Investment Income .............................................. 3,771 2,786
Premiums Receivable .................................................... 27,769 15,269
Prepaid Reinsurance Premiums and
Reinsurance Receivables ........................................... 22,892 18,573
Deferred Acquisition Costs ............................................. 16,853 10,970
Property and Equipment ................................................. 4,877 5,797
Other Assets ........................................................... 4,977 5,132
--------- ---------
Total Assets .................................................... $ 469,198 $ 288,126
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Policy Liabilities and Accruals:
Unpaid Loss and Loss Adjustment Expenses ............................. $ 151,150 $ 122,430
Unearned Premiums .................................................... 64,787 42,116
--------- ---------
Total Policy Liabilities and Accruals ........................... 215,937 164,546
Other Liabilities ...................................................... 9,463 7,948
Deferred Income Taxes .................................................. 7,410 4,348
--------- ---------
Total Liabilities ............................................... 232,810 176,842
--------- ---------
Minority Interest in Consolidated Subsidiaries:
Company Obligated Mandatorily Redeemable
Preferred Securities of Subsidiary Trust
Holding Solely Debentures of Company ................................. 98,905
--------- ---------
Commitments and Contingencies
Shareholders' Equity:
Preferred Stock, $.01 Par Value,
10,000,000 Shares Authorized,
None Issued and Outstanding......................................
Common Stock, No Par Value, 50,000,000 Shares
Authorized, 12,330,825 Shares Issued and 12,242,431 Shares
Issued and Outstanding .......................................... 44,796 42,788
Notes Receivable from Shareholders ................................... (1,680) (1,422)
Accumulated Other Comprehensive Income ............................... 22,417 15,023
Retained Earnings .................................................... 74,923 54,895
Less Cost of Common Stock Held in Treasury,
130,262 Shares in 1998 ............................................ (2,973)
--------- ---------
Total Shareholders' Equity ...................................... 137,483 111,284
--------- ---------
Total Liabilities and Shareholders' Equity ...................... $ 469,198 $ 288,126
========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
27
<PAGE> 28
PHILADELPHIA CONSOLIDATED HOLDING CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
For the Years Ended December 31,
----------------------------------------------
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Revenue:
Net Written Premiums ............................... $ 143,036 $ 111,797 $ 83,994
Change in Net Unearned Premium Reserve (Increase) .. (20,349) (11,242) (11,944)
------------ ------------ ------------
Net Earned Premiums ................................ 122,687 100,555 72,050
Net Investment Income .............................. 15,448 9,703 7,910
Net Realized Investment Gain (Loss) ................ 474 (16) 260
Other Income ....................................... 219 228 282
------------ ------------ ------------
Total Revenue ................................. 138,828 110,470 80,502
------------ ------------ ------------
Losses and Expenses:
Loss and Loss Adjustment Expenses .................. 74,074 61,839 44,720
Net Reinsurance Recoveries ......................... (7,700) (6,830) (4,602)
------------ ------------ ------------
Net Loss and Loss Adjustment Expenses .............. 66,374 55,009 40,118
Acquisition Costs and Other
Underwriting Expenses ........................... 38,422 31,344 22,210
Other Operating Expenses ........................... 2,212 1,909 1,386
------------ ------------ ------------
Total Losses and Expenses ...................... 107,008 88,262 63,714
------------ ------------ ------------
Minority Interest: Distributions on Company Obligated
Mandatorily Redeemable Preferred Securities of
Subsidiary Trust ................................... 4,770
------------ ------------ ------------
Income Before Income Taxes ........................... 27,050 22,208 16,788
------------ ------------ ------------
Income Tax Expense (Benefit):
Current ............................................ 7,941 6,521 3,596
Deferred ........................................... (919) (1,183) (182)
------------ ------------ ------------
Total Income Tax Expense ....................... 7,022 5,338 3,414
------------ ------------ ------------
Net Income ..................................... $ 20,028 $ 16,870 $ 13,374
============ ============ ============
Per Average Share Data:
Basic Earnings Per Share(1) ........................ $ 1.63 $ 1.38 $ 1.13
============ ============ ============
Diluted Earnings Per Share(1) ...................... $ 1.34 $ 1.13 $ 0.94
============ ============ ============
Weighted-Average Common Shares Outstanding(1) ........ 12,249,262 12,193,659 11,879,506
Weighted-Average Share Equivalents Outstanding(1) .... 2,680,165 2,736,039 2,373,742
------------ ------------ ------------
Weighted-Average Shares and Share Equivalents
Outstanding(1) ..................................... 14,929,427 14,929,698 14,253,248
============ ============ ============
</TABLE>
(1) 1996 share information restated to reflect a two-for-one split of the
Company's common stock distributed in November 1997, see Note 11.
The accompanying notes are an integral part of the consolidated
financial statements.
28
<PAGE> 29
PHILADELPHIA CONSOLIDATED HOLDING CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In Thousands)
<TABLE>
<CAPTION>
For the Years Ended December 31,
---------------------------------
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Net Income ........................................... $ 20,028 $ 16,870 $ 13,374
-------- -------- --------
Other Comprehensive Income, Net of Tax:
Holding Gain Arising during Period, Net of Tax of
$4,147, $4,119, and $1,489 ...................... 7,702 7,649 2,766
Reclassification Adjustment, Net of Tax of $166 ... (308)
-------- -------- --------
Other Comprehensive Income ........................... 7,394 7,649 2,766
-------- -------- --------
Comprehensive Income ................................. $ 27,422 $ 24,519 $ 16,140
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
29
<PAGE> 30
PHILADELPHIA CONSOLIDATED HOLDING CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES
IN SHAREHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
For the Years Ended December 31,
-------------------------------------
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Common Stock:
Balance at Beginning of Year .............................. $ 42,788 $ 41,167 $ 39,057
Issuance of Shares Pursuant to Employee Stock Purchase Plan 853 898 1,131
Exercise of Employee Stock Options, Net of Tax Benefit .... 597 723 979
Purchase Contracts of Common Stock ....................... 558
--------- --------- ---------
Balance at End of Year ................................ 44,796 42,788 41,167
--------- --------- ---------
Notes Receivable from Shareholders:
Balance at Beginning of Year .............................. (1,422) (924)
Notes Receivable Issued Pursuant to Employee
Stock Purchase Plan ..................................... (828) (873) (1,131)
Collection of Notes Receivable ............................ 570 375 207
--------- --------- ---------
Balance at End of Year ................................ (1,680) (1,422) (924)
--------- --------- ---------
Unrealized Investment Appreciation,
Net of Deferred Income Taxes:
Balance at Beginning of Year ............................ 15,023 7,374 4,608
Change in Unrealized Investment Appreciation,
Net of Deferred Income Taxes .......................... 7,394 7,649 2,766
--------- --------- ---------
Balance at End of Year ................................ 22,417 15,023 7,374
--------- --------- ---------
Retained Earnings:
Balance at Beginning of Year .............................. 54,895 38,025 24,651
Net Income ................................................ 20,028 16,870 13,374
--------- --------- ---------
Balance at End of Year ................................ 74,923 54,895 38,025
--------- --------- ---------
Common Stock Held in Treasury:
Balance at Beginning of Year
Common Shares Repurchased ................................. (3,100)
Exercise of Employee Stock Options, Net of Tax Benefit .... 127
--------- --------- ---------
Balance at End of Year ................................ (2,973)
--------- --------- ---------
Total Shareholders' Equity ............................ $ 137,483 $ 111,284 $ 85,642
========= ========= =========
</TABLE>
(1) 1996 share information restated to reflect a two for one split of the
Company's common stock distributed in November 1997, see Note 11.
The accompanying notes are an integral part of the consolidated
financial statements.
30
<PAGE> 31
PHILADELPHIA CONSOLIDATED HOLDING CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
For the Years Ended December 31,
---------------------------------------
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income ............................................ $ 20,028 $ 16,870 $ 13,374
Adjustments to Reconcile Net Income to Net
Cash Provided by Operating Activities:
Net Realized Investment (Gain) Loss ............... (474) 16 (260)
Depreciation and Amortization Expense ............. 1,277 1,232 930
Deferred Income Tax Benefit ....................... (919) (1,183) (182)
Change in Premiums Receivable ..................... (12,500) (7,157) (214)
Change in Other Receivables ....................... (5,318) (655) (5,747)
Change in Deferred Acquisition Costs .............. (5,883) (1,937) (3,876)
Change in Other Assets ............................ 522 (3,345) (269)
Change in Unpaid Loss and Loss Adjustment Expenses 28,847 25,788 18,956
Change in Unearned Premiums ....................... 22,671 8,962 15,035
Change in Other Liabilities ....................... 1,533 (575) (184)
--------- --------- ---------
Net Cash Provided by Operating Activities ....... 49,784 38,016 37,563
--------- --------- ---------
Cash Flows from Investing Activities:
Proceeds from Sales of Investments in Fixed
Maturities Available for Sale ....................... 50,874 5,564 2,594
Proceeds from Maturity of Investments in Fixed
Maturities Available for Sale ..................... 36,736 9,305 9,476
Proceeds from Sales of Investments in Equity
Securities .......................................... 19,440 5,896 2,168
Proceeds from Sale of Real Estate ..................... 1,987
Cost of Fixed Maturities Available for Sale
Acquired ............................................ (199,024) (42,309) (32,783)
Cost of Equity Securities Acquired .................... (35,610) (15,536) (12,412)
Purchase of Property and Equipment, net ............... (2,229) (1,609) (1,989)
--------- --------- ---------
Net Cash Used for Investing Activities .......... (127,826) (38,689) (32,946)
--------- --------- ---------
Cash Flows from Financing Activities:
Proceeds from Offering of Company Obligated Mandatorily
Redeemable Preferred Securities of Subsidiary Trust . 99,463
Exercise of Employee Stock Options, Net of Tax Benefit 724 723 979
Collection of Notes Receivable ........................ 570 375 207
Proceeds from Shares Issued Pursuant to Employee Stock
Purchase Plan ....................................... 25 25
Cost of Common Stock Repurchased ...................... (3,100)
--------- --------- ---------
Net Cash Provided by Financing Activities ....... 97,682 1,123 1,186
--------- --------- ---------
Net Increase in Cash and Cash Equivalents .............. 19,640 450 5,803
Cash and Cash Equivalents at Beginning of Year ......... 11,933 11,483 5,680
--------- --------- ---------
Cash and Cash Equivalents at End of Year ............... $ 31,573 $ 11,933 $ 11,483
========= ========= =========
Cash Paid During the Year for:
Income Taxes .......................................... $ 7,546 $ 7,158 $ 3,024
Non-Cash Transactions:
Issuance of Shares Pursuant to Employee
Stock Purchase Plan in Exchange for Notes
Receivable ........................................ $ 828 $ 873 1,131
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
31
<PAGE> 32
Philadelphia Consolidated Holding Corp. and Subsidiaries
Notes to Consolidated Financial Statements
1. General Information and Significant Accounting Policies
Philadelphia Consolidated Holding Corp. ("Philadelphia Insurance"), and its
subsidiaries (collectively the "Company") doing business as Philadelphia
Insurance Companies, include two Pennsylvania domiciled property and casualty
insurance companies, Philadelphia Indemnity Insurance Company and Philadelphia
Insurance Company ("Insurance Subsidiaries"); an underwriting manager Maguire
Insurance Agency, Inc.; and an investment subsidiary, PCHC Investment Corp. The
Company designs, markets, and underwrites specialty commercial property and
casualty insurance products for select target industries or niches including,
among others, the rent-a-car industry; automobile leasing industry; nonprofit
organizations; the health, fitness and wellness industry; and selected classes
of professional liability. All marketing, underwriting, claims management,
investment, and general administration is provided by the underwriting manager.
The Company manages one operating segment comprised of all its property and
casualty insurance business.
Principles of Consolidation and Basis of Presentation
The consolidated financial statements include the accounts of the Company
prepared in conformity with generally accepted accounting principles. All
significant intercompany balances and transactions have been eliminated in
consolidation. The preparation of financial statements requires making estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates. Certain
prior years' amounts have been reclassified for comparative purposes.
(a) Investments
Investments classified as Available for Sale are carried at market value with
the change in unrealized appreciation (depreciation) credited or charged
directly to shareholders' equity, net of applicable deferred income taxes.
Income on fixed maturities is recognized on the accrual basis.
The decision to purchase or sell investments is based on management's assessment
of various factors such as foreseeable economic conditions, including current
interest rates and the interest rate risk, and the liquidity and capital
positions of the Company.
Investments in fixed maturities are adjusted for amortization of premiums and
accretion of discounts to maturity date, except for collateralized mortgage and
asset backed securities which are adjusted for amortization of premiums and
accretion of discounts over their estimated lives. Certain collateralized
mortgage and asset backed securities repayment patterns will change based on
interest rate movements and, accordingly, could impact future investment income
if the reinvestment of the repayment amounts are at lower interest rates than
the underlying securities. Collateralized mortgage and asset backed securities
amounted to $42,820,000 and $46,394,000, respectively, at December 31, 1998 and
$7,329,000 and $11,302,000, respectively, at December 31, 1997. The
collateralized mortgage and asset back securities held as of December 31, 1998
and 1997 are short tranche securities possessing favorable prepayment risk
profiles.
Equity securities are carried at market value with the change in unrealized
appreciation (depreciation) credited or charged directly to shareholders'
equity, net of applicable deferred income taxes.
Realized investment gains and losses are calculated on the specific
identification basis and recorded as income when the securities are sold.
(b) Cash and Cash Equivalents
Cash equivalents, consisting of fixed maturity investments with maturities of
three months or less when purchased and money market funds, are stated at cost
which approximates market value.
32
<PAGE> 33
(c) Deferred Acquisition Costs
Policy acquisition costs, which include commissions, premium taxes, fees, and
other costs of underwriting policies, are deferred and amortized over the same
period in which the related premiums are earned. Deferred acquisition costs are
limited to the estimated amounts recoverable after providing for losses and
expenses that are expected to be incurred, based upon historical and current
experience. Amortization of policy acquisition costs in the accompanying
consolidated statements of operations was $30,034,000, $25,034,000 and
$17,739,000 for the years ended December 31, 1998, 1997 and 1996, respectively.
(d) Property and Equipment
Property and equipment are recorded at cost and depreciated using the
straight-line method over the estimated useful lives of the respective assets.
Costs incurred in developing information systems technology are capitalized and
included in property and equipment. These costs are amortized over their useful
lives from the dates the systems technology became operational. Upon disposal of
assets, the cost and related accumulated depreciation are removed from the
accounts and the resulting gain or loss is included in earnings.
(e) Reserves for Unpaid Loss and Loss Adjustment Expenses
The liability for unpaid loss and loss adjustment expenses includes an amount
determined on the basis of claims adjusters' evaluations and an amount, based on
past experience, for losses incurred but not reported. Such liabilities are
necessarily based on estimates, and while management believes that the amount is
adequate, the ultimate liability may be in excess of, or less than, the amount
provided. The methods of making such estimates and establishing the resulting
liabilities are continually reviewed and updated and any adjustments resulting
therefrom are reflected in operations currently.
(f) Unearned Premiums
Premiums are generally earned on a pro rata basis over the terms of the
policies. Premiums applicable to the unexpired terms of the policies in-force
are reported as unearned premiums.
(g) Reinsurance Ceded
In the normal course of business, the Company seeks to reduce the loss that may
arise from events that cause unfavorable underwriting results by reinsuring
certain levels of risk in various areas of exposure with reinsurers. Amounts
recoverable from reinsurers are estimated in a manner consistent with the
reinsured policy. Amounts for reinsurance assets and liabilities are reported
gross.
(h) Income Taxes
The Company files a consolidated federal income tax return. Deferred income
taxes are recognized for the tax consequences of temporary differences by
applying enacted statutory tax rates applicable to the differences between the
financial statement carrying amounts and the tax bases of existing assets and
liabilities. The effect on deferred taxes for a change in tax rates is
recognized in income in the period that includes the enactment date (see Note
8).
(i) Earnings Per Share
Earnings per share and common stock equivalents outstanding have been
retroactively restated to reflect the increased number of common shares
resulting from a two-for-one stock split that was announced in October 1997 and
distributed to shareholders on November 5, 1997. A total of 6,119,716 additional
shares were issued as a result of the stock split. The par value of the
Company's stock remained unchanged.
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 128, "Earnings per Share", specifying
the computation, presentation, and disclosure requirements for earnings per
share for entities with publicly held common stock. Under SFAS No. 128, basic
and diluted per share amounts shall be presented for net income on the face of
the statement of operations. Basic earnings per share excludes dilution and is
computed by dividing income available to common shareholders by the
weighted-average number of common shares outstanding for the period. Diluted
earnings per share reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or converted
into common stock or resulted in the issuance of common stock that then shared
33
<PAGE> 34
in the earnings of the entity. The Company adopted the provisions of SFAS No.
128 as of December 31, 1997 and restated all prior period earnings per share
data to conform with the provisions of this Statement.
2. Statutory Information
Accounting Principles: The Philadelphia Indemnity Insurance Company ("PIIC") and
the Philadelphia Insurance Company ("PIC") are domiciled in the Commonwealth of
Pennsylvania. PIIC and PIC are required to report to certain regulatory agencies
on the basis of Statutory Accounting Practices ("SAP"). The statutory financial
statements are prepared in accordance with accounting practices prescribed or
permitted by the Insurance Department of the Commonwealth of Pennsylvania.
Prescribed statutory accounting practices include a variety of publications of
the National Association of Insurance Commissioners ("NAIC"), as well as
Commonwealth laws, regulations, and general administrative rules. Permitted
Statutory Accounting Practices encompass all accounting practices not so
prescribed.
Generally accepted accounting principles ("GAAP") differ in certain respects
from SAP prescribed or permitted by the Insurance Department of the Commonwealth
of Pennsylvania. The principal differences between SAP and GAAP are as follows:
- Under SAP, investments in debt securities are carried at
amortized cost, while under GAAP, investments in debt
securities classified as Available for Sale are carried at
fair value.
- Under SAP, policy acquisition costs, such as commissions,
premium taxes, fees, and other costs of underwriting policies
are charged to current operations as incurred, while under
GAAP, such costs are deferred and amortized on a pro rata
basis over the period covered by the policy.
- Under SAP, certain assets, designated as "Non-admitted Assets"
(such as prepaid expenses) are charged against surplus.
- Under SAP, federal income taxes are only provided on taxable
income for which income taxes are currently payable, while
under GAAP, deferred income taxes are provided with respect to
temporary differences.
- Under SAP, certain reserves are established in amounts which
differ from amounts which would be provided in conformity with
GAAP.
Financial Information: The statutory capital and surplus of PIIC as of December
31, 1998 and 1997 was $113,659,000 and $75,894,000, respectively. Statutory net
income of PIIC for the years ended December 31, 1998, 1997, and 1996 was
$9,785,000, $8,839,000 and $5,626,000, respectively. Capital contributions to
PIIC for the years ended December 31, 1998 and 1997 were $19,500,000 and $0,
respectively.
The statutory capital and surplus of PIC as of December 31, 1998 and 1997 was
$38,677,000 and $30,091,000, respectively. Statutory net income of PIC for the
years ended December 31, 1998, 1997, and 1996 was $6,339,000, $5,494,000 and
$3,629,000, respectively. Capital contributions to PIC for the years ended
December 31, 1998 and 1997 were $6,000,000 and $0, respectively.
Dividend Restrictions: The Insurance Subsidiaries are subject to various
regulatory restrictions which limit the maximum amount of annual shareholder
dividends allowed to be paid. The maximum dividend which PIIC may pay to
Philadelphia Insurance during 1999 without prior approval is $11,366,000 and the
maximum dividend which PIC may pay to Philadelphia Insurance during 1999 without
prior approval is $6,339,000.
Risk-Based Capital: Risk-based capital is designed to measure the acceptable
amount of capital an insurer should have based on the inherent specific risks of
each insurer. Insurers failing to meet this benchmark capital level may be
subject to scrutiny by the insurer's domiciliary insurance department, and
ultimately, rehabilitation or liquidation. Based on the standards, PIIC's and
PIC's capital and surplus at December 31, 1998 is in excess of the prescribed
risk-based capital requirements.
34
<PAGE> 35
3. Investments
The Company invests primarily in investment grade fixed maturities, the majority
of which are rated "A-" or better by Standard and Poors'. The cost, gross
unrealized gains and losses, estimated market value and carrying value of
investments as of December 31, 1998 and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
Gross Gross Estimated
Unrealized Unrealized Market Carrying
Cost (1) Gains Losses Value (2) Value
-------- ----- ------ --------- -----
<S> <C> <C> <C> <C> <C>
December 31, 1998
Fixed Maturities:
Available for Sale
U.S. Treasury Securities and
Obligations of U.S. Government
Corporations and Agencies $ 7,706 $ 212 $ $ 7,918 $ 7,918
Obligations of States and
Political Subdivisions 112,196 5,069 70 117,195 117,195
Corporate and Bank Debt Securities 69,532 1,011 1,152 69,391 69,391
Collateralized Mortgage Securities 42,755 174 109 42,820 42,820
Asset Backed Securities 46,368 213 187 46,394 46,394
- -----------------------------------------------------------------------------------------------------------------
Total Fixed Maturities
Available for Sale 278,557 6,679 1,518 283,718 283,718
- -----------------------------------------------------------------------------------------------------------------
Equity Securities 43,441 29,769 442 72,768 72,768
- -----------------------------------------------------------------------------------------------------------------
Total Investments $321,998 $ 36,448 $ 1,960 $356,486 $356,486
=================================================================================================================
December 31, 1997
Fixed Maturities:
Available for Sale
U.S. Treasury Securities and
Obligations of U.S. Government
Corporations and Agencies $ 12,943 $ 205 $ 9 $ 13,139 $ 13,139
Obligations of States and
Political Subdivisions 105,117 4,670 91 109,696 109,696
Corporate Debt Securities 28,549 681 18 29,212 29,212
Collateralized Mortgage Securities 7,244 85 7,329 7,329
Asset Backed Securities 11,199 103 11,302 11,302
- -----------------------------------------------------------------------------------------------------------------
Total Fixed Maturities
Available for Sale 165,052 5,744 118 170,678 170,678
- -----------------------------------------------------------------------------------------------------------------
Equity Securities 29,501 17,800 313 46,988 46,988
- -----------------------------------------------------------------------------------------------------------------
Total Investments $194,553 $ 23,544 $ 431 $217,666 $217,666
=================================================================================================================
</TABLE>
(1) Original cost of equity securities; original cost of fixed maturities
adjusted for amortization of premiums and accretion of discounts.
(2) Estimated market values have been based on quoted market prices.
The Company had no debt or equity investments in a single issuer totaling in
excess of 10% of shareholders' equity at December 31, 1998.
35
<PAGE> 36
The cost and estimated market value of fixed maturity securities at December 31,
1998, by remaining contractual maturity, are shown below (in thousands).
Expected maturities may differ from contractual maturities because certain
borrowers have the right to call or prepay obligations with or without call or
prepayment penalties.
<TABLE>
<CAPTION>
Estimated
Market
Cost (1) Value (2)
-------- --------
<S> <C> <C>
Due in One Year or Less $ 10,571 $ 10,737
Due After One Year Through Five Years 33,688 34,237
Due After Five Years through Ten Years 118,704 123,095
Due After Ten Years 26,471 26,435
Collateralized Mortgage and Asset Backed Securities 89,123 89,214
- ----------------------------------------------------------------------------------
$278,557 $283,718
==================================================================================
</TABLE>
(1) Original cost adjusted for amortization of premiums and accretion of
discounts.
(2) Estimated market values have been based on quoted market prices.
The sources of net investment income for the years ended December 31, 1998,
1997, and 1996 are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Fixed Maturities Available for Sale $ 13,404 $ 8,978 $ 7,377
Equity Securities 634 480 257
Cash and Cash Equivalents 1,983 602 422
- -----------------------------------------------------------------------------------
Total Investment Income 16,021 10,060 8,056
Investment Expense (573) (357) (146)
- -----------------------------------------------------------------------------------
Net Investment Income $ 15,448 $ 9,703 $ 7,910
===================================================================================
</TABLE>
There are no investments in fixed maturity securities that were non-income
producing during the years ended December 31, 1998, 1997, and 1996. Investment
expense includes $189,000, $164,000 and $60,000, in advisory fees paid to a
related party in 1998, 1997, and 1996, respectively.
Realized pre-tax gains (losses) on the sale of investments for the years ended
December 31, 1998, 1997, and 1996 are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Fixed Maturities Available for Sale
Gross Realized Gains $ 1,090 $ 22 $ 47
Gross Realized Losses (89) (52) (28)
- ---------------------------------------------------------------------------------------
Net Gain (Loss) 1,001 (30) 19
- ---------------------------------------------------------------------------------------
Equity Securities
Gross Realized Gains 1,641 628 280
Gross Realized Losses (2,284) (614) (39)
- ---------------------------------------------------------------------------------------
Net Gain (Loss) (643) 14 241
- ---------------------------------------------------------------------------------------
Gross Realized Gain on Sale of Real Estate 116
- ---------------------------------------------------------------------------------------
Total Net Realized
Investment Gain (Loss) $ 474 $ (16) $ 260
=======================================================================================
</TABLE>
36
<PAGE> 37
4. Restricted Assets
PIIC and PIC have investments, principally U.S. Treasury securities, on deposit
with the various states in which they are licensed insurers. At December 31,
1998 and 1997 the carrying value on deposit totaled $11,032,000 and $10,912,000,
respectively.
5. Trust Accounts
The Company is required to maintain certain investments in trust accounts under
reinsurance agreements with unrelated insurance companies that cede insurance
risks to the Company. At December 31, 1998 and 1997, the Company had investments
with a carrying value of $2,326,000 and $2,403,000, respectively, in trust
accounts pursuant to a terminated quota share reinsurance agreement. Under the
terms of this agreement, net premiums received by the Company were invested and
held in a trust account to pay future claims. Interest income on these
investments is distributed to the parties to the quota share agreement on a
quarterly basis. The Company receives its interest in net trust investments in
accordance with a formula that specifies certain percentages of funds to be
released over a five-year period as losses are settled.
The Company also maintains investments in trust accounts under current
reinsurance agreements with unrelated insurance companies. These investments
collateralize the Company's obligations under the reinsurance agreements. The
Company possesses sole responsibility for investment and reinvestment of the
trust account assets. All dividends, interest and other income, resulting from
investment of these assets are owned by the Company, and are distributed on a
monthly basis. At December 31, 1998 and 1997 the carrying value of these trust
fund investments were $8,886,000 and $12,205,000, respectively.
The Company's share of the investments in the trust accounts is included in
investments and cash equivalents, as applicable, in the accompanying
consolidated balance sheets.
6. Property and Equipment
The following table summarizes property and equipment at December 31, 1998 and
1997 (dollars in thousands):
<TABLE>
<CAPTION>
December 31,
-------------------- Estimated Useful
1998 1997 Lives (Years)
---- ---- -------------
<S> <C> <C> <C>
Furniture, Fixtures and Automobiles $ 2,676 $ 2,473 5
Computer and Telephone Equipment 8,890 7,176 3-7
Land and Building 150 2,277 40
Leasehold Improvements 1,247 974 10-12
- -------------------------------------------------------------------
12,963 12,900
Accumulated Depreciation and
Amortization (8,086) (7,103)
- -------------------------------------------------------------------
Property and Equipment $ 4,877 $ 5,797
===================================================================
</TABLE>
Included in property and equipment are costs incurred in developing or
purchasing information systems technology of $2,716,500 and $2,516,500 in 1998
and 1997, respectively. Amortization of these costs was $195,300, $180,200 and
$100,100 for the years ended December 31, 1998, 1997, and 1996, respectively.
Depreciation expense, excluding amortization of capitalized information systems
technology costs, was $1,169,700, $858,200 and $530,000, for the years ended
December 31, 1998, 1997, and 1996, respectively.
37
<PAGE> 38
7. Liability for Unpaid Loss and Loss Adjustment Expenses
Activity in the liability for Unpaid Loss and Loss Adjustment Expenses is
summarized as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Balance at January 1, $ 122,430 $ 96,642 $ 77,686
Less Reinsurance Recoverables 13,502 10,919 9,440
--------- --------- ---------
Net Balance at January 1, 108,928 85,723 68,246
--------- --------- ---------
Incurred related to:
Current Year 69,544 56,725 41,083
Prior Years (3,170) (1,716) (965)
--------- --------- ---------
Total Incurred 66,374 55,009 40,118
--------- --------- ---------
Paid related to:
Current Year 13,402 9,512 7,427
Prior Years 26,870 22,292 15,214
--------- --------- ---------
Total Paid 40,272 31,804 22,641
--------- --------- ---------
Net Balance at December 31, 135,030 108,928 85,723
Plus Reinsurance Recoverables 16,120 13,502 10,919
--------- --------- ---------
Balance at December 31, $ 151,150 $ 122,430 $ 96,642
========= ========= =========
</TABLE>
As a result of changes in estimates of insured events of prior years, the
Company reduced losses and loss adjustment expenses incurred by $3,170,000,
$1,716,000 and $965,000 in 1998, 1997, and 1996, respectively. Such favorable
development was due to losses emerging at a lesser rate than had been originally
anticipated when the initial reserves for the applicable accident years were
estimated.
8. Income Taxes
The composition of deferred tax assets and liabilities and the related tax
effects as of December 31, 1998 and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
December 31,
------------------
1998 1997
---- ----
<S> <C> <C>
Assets:
Effect of Loss Reserve Discounting $ 6,853 $ 5,735
Excess of Tax Over Financial Reporting Earned Premium 4,131 2,709
Other Assets 127 128
- -------------------------------------------------------------------------------------
Total Assets 11,111 8,572
=====================================================================================
Liabilities:
Deferred Policy Acquisition Costs, Deductible for Tax 5,899 3,752
Property and Equipment Basis 550 494
Tax Effect of Unrealized Appreciation of Securities 12,070 8,089
Other Liabilities 2 585
- -------------------------------------------------------------------------------------
Total Liabilities 18,521 12,920
- -------------------------------------------------------------------------------------
Net Deferred Income Tax Liability $ 7,410 $ 4,348
=====================================================================================
</TABLE>
38
<PAGE> 39
The following table summarizes the differences between the Company's effective
tax rate for financial statement purposes and the federal statutory rate
(dollars in thousands):
<TABLE>
<CAPTION>
Amount of Tax Percent
------------- -------
<S> <C> <C>
For the year ended December 31, 1998:
Federal Tax at Statutory Rate $ 9,468 35%
Nontaxable Municipal Bond Interest and Dividends Received Exclusion (1,944) (7)
Other, Net (502) (2)
- ------------------------------------------------------------------------------------------------------
Income Tax Expense $ 7,022 26%
======================================================================================================
For the year ended December 31, 1997:
Federal Tax at Statutory Rate $ 7,773 35%
Nontaxable Municipal Bond Interest and Dividends Received Exclusion (1,812) (8)
Other, Net (623) (3)
- ------------------------------------------------------------------------------------------------------
Income Tax Expense $ 5,338 24%
======================================================================================================
For the year ended December 31, 1996:
Federal Tax at Statutory Rate $ 5,708 34%
Nontaxable Municipal Bond Interest and Dividends Received Exclusion (1,670) (10)
Other, Net (624) (4)
- ------------------------------------------------------------------------------------------------------
Income Tax Expense $ 3,414 20%
======================================================================================================
</TABLE>
As of December 31, 1998, the Company has approximately $0.6 million in net
operating loss carryforwards, which expire in 2000 and 2001, available to offset
future taxable income. Utilization of the loss carryfowards is limited to an
annual amount of $336,000. For financial reporting purposes, the tax benefit of
any utilization of these operating loss carryfowards is applied to reduce
goodwill ($118,000 in 1998) and does not reduce income tax expense.
Philadelphia Insurance has entered into tax sharing agreements with each of its
subsidiaries. Under the terms of these agreements, the income tax provision is
computed as if each subsidiary were filing a separate federal income tax return,
including adjustments for the income tax effects of net operating losses and
other special tax attributes, regardless of whether those attributes are
utilized in the Company's consolidated federal income tax return.
9. Minority Interest in Consolidated Subsidiaries: Company Obligated
Mandatorily Redeemable Preferred Securities of Subsidiary Trust Holding
Solely Debentures of Company
On May 5, 1998, the Company issued 10.350 million FELINE PRIDES(SM) at $10.00
per security and PCHC Financing I, the Company's business trust subsidiary,
issued 1,000,000 7.0% Trust Originated Preferred Securities with a stated
liquidation amount per trust preferred security equal to $10.00. The 10.350
million FELINE PRIDES(SM) consisted of 9.350 million units referred to as Income
Prides and 1.000 million units referred to as Growth Prides. Each Income Prides
consists of a unit comprised of (a) a purchase contract under which the holder
will purchase a number of shares of Philadelphia Consolidated Holding Corp.
common stock no later than May 16, 2001 (ranging from .3858 to .4706 shares per
FELINE PRIDES(SM)) under the terms specified in the stock purchase contract and
(b) beneficial ownership of a 7.0% Trust Originated Preferred Security issued by
PCHC Financing I and representing an undivided beneficial ownership in the
assets of PCHC Financing I. Each holder will receive aggregate cumulative cash
distributions at the annual rate of 7.00% of the $10.00 stated amount for the
security, payable quarterly in arrears. Each Growth Prides consists of a unit
with a face amount of $10.00 comprised of (a) a purchase contract under which
(i) the holder will purchase a number of shares of Philadelphia Consolidated
Holding Corp. common stock no later than May 16, 2001 (ranging from .3858 to
.4706 shares per FELINE PRIDES(SM)) under the terms specified in the stock
purchase contract and (ii) the Company will pay the holder contract adjustment
payments at the rate of .50% of the stated amount per annum and (b) a 1/100
undivided beneficial ownership interest in a treasury security having a
principal amount at maturity equal to $1,000 and maturing on May 15, 2001. The
applicable distribution rate on the trust originated securities that remain
outstanding during the period May 16, 2001 through May 16, 2003, will be reset
so that the market value of the Trust Originated Preferred Securities will be
equal to 100.5 percent of the stated amount. The Company may limit the reset
rate to be no higher than the rate on the two-year benchmark treasury plus 255
basis points. The guarantee by the Company is a full and unconditional guarantee
on a subordinated unsecured basis with respect to the Trust
39
<PAGE> 40
Originated Preferred Securities, but will not apply to any payment of
distributions except to the extent the Trust shall have funds available
therefor.
Proceeds from the offering were approximately $99.0 million (after underwriting
and associated costs). The proceeds from the sale of the Growth Prides were used
to purchase the underlying securities to be transferred to the holders of the
Growth Prides pursuant to the terms thereof. All the proceeds from the sale of
the Trust Preferred Securities that were not components of the Income Prides and
all of the proceeds from the sale of the Income Prides were invested by PCHC
Financing I in debentures of the Company. The debentures account for
substantially all the assets of PCHC Financing I. The debentures, whose
principal amount is $106.7 million, mature on May 16, 2003 and pay interest
initially at the rate of 7.0% per annum until May 15, 2001 and at the reset rate
thereafter. The Company utilized $33.1 million of the net proceeds to make
contributions to its subsidiaries, of which $20.0 million was contributed to the
Insurance Subsidiaries. Additionally, $3.1 million was utilized by the Company
to buy back its common stock under its stock buy-back program. The Company
anticipates utilizing the remaining proceeds for general corporate purposes
which may include acquisitions, capital expenditures, and the repurchase by the
Company of its common stock.
10. Shareholders' Equity
The Company has established non-qualified stock bonus and stock option plans.
Under the stock bonus plan, the Company has granted a total of 137,500 shares to
certain officers of the Company, of which all such shares have been issued and
are vested.
Under the Company's stock option plan, stock options may be granted for the
purchase of common stock at a price not less than the fair market value on the
date of grant. Options outstanding as of December 31, 1994 are exercisable over
a four-to-five-year vesting period. Options issued in 1998, 1997, 1996, and 1995
are exercisable after the expiration of five years following the grant date.
Under this plan, the Company has reserved 2,475,000 shares of common stock for
issuance pursuant to options granted under the plan.
In addition to stock options granted pursuant to the Company's stock option
plan, the Company's Board of Directors have granted previous awards of 2,613,492
stock options.
SFAS No. 123, "Accounting for Stock-Based Compensation", encourages, but does
not require, companies to record compensation cost for stock-based employee
compensation plans at a fair value. The Company has chosen to continue to
account for stock-based compensation using the intrinsic value method prescribed
in Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. Accordingly, compensation cost for the
Company's compensation instruments is measured as the excess, if any, of the
quoted market price of the Company's stock at the date of the grant over the
amount an employee must pay to acquire the stock.
40
<PAGE> 41
The following is a summary of the Company's option activity, including
weighted-average option information:
<TABLE>
<CAPTION>
1998 1997 1996(2)
---------------------- ---------------------- ----------------------
Exercise Exercise Exercise
Price Price Price
Per Per Per
Options Option(1) Options Option(1) Options Option(1)
--------- ---------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning
of year 3,473,042 $ 3.85 3,572,292 $ 3.86 3,200,642 $2.84
Granted 256,125 $19.07 5,000 $16.38 917,900 $8.39
Exercised (68,600) $ 4.53 (84,250) $ 4.42 (292,500) $3.33
Canceled (23,400) $12.00 (20,000) $ 6.00 (253,750) $8.05
--------- --------- ---------
Outstanding at end of year 3,637,167 $ 4.85 3,473,042 $ 3.85 3,572,292 $3.86
========= ========= =========
Exercisable at end of year 2,708,142 2,768,792 2,819,218
Weighted-average fair
value of options granted
during the year $7.69 $6.38 $2.87
</TABLE>
<TABLE>
<CAPTION>
Exercise Exercisable Exercise
Outstanding Price Remaining at Price
At December Per Contractual December Per
Range of Exercise Prices 31, 1998 Option(1) Life (Years)(1) 31, 1998 Option(1)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$2.61 2,664,142 $ 2.61 4.1 2,664,142 $ 2.61
$4.75 to $7.31 44,000 $ 5.22 2.6 44,000 $ 5.22
$8.13 to $9.31 667,900 $ 8.48 7.2 -- --
$16.38 to $19.75 203,625 $18.54 9.4 -- --
$20.50 to $23.50 57,500 $20.74 9.4 -- --
---------- ---------
3,637,167 $ 4.85 2,708,142 $ 2.65
========= =========
</TABLE>
(1) Weighted Average.
(2) Restated to reflect a two-for-one split of the Company's common stock
distributed in November 1997, see Note 11.
The Company has established a non-qualified Employee Stock Purchase Plan (the
"Stock Purchase Plan"). The aggregate maximum number of shares that may be
issued pursuant to the Stock Purchase Plan is 500,000. Shares may be purchased
under the Stock Purchase Plan by eligible employees during designated one-month
offering periods established by the Compensation Committee of the Board of
Directors at a purchase price of the lesser of 85% of the fair market value of
the shares on the first business day of the offering period or the date the
shares are purchased. The purchase price of shares may be paid by the employee
over six years pursuant to the execution of a promissory note. The promissory
note(s) are collateralized by such shares purchased under the Stock Purchase
Plan and are interest free. Under the Stock Purchase Plan, the Company issued
51,794 and 78,569 shares in 1998 and 1997, respectively. The weighted-average
fair value of those purchase rights granted in 1998 and 1997 was $2.70 and
$1.94, respectively.
In addition, the Company has also established a non-qualified Directors Stock
Purchase Plan ("Directors Plan") for the benefit of non-employee Directors. The
aggregate maximum number of shares that may be issued pursuant to the Directors
Plan is 50,000. Non-employee Directors, during monthly offerings periods, may
designate a portion of his or her fees to be used for the purchase of shares
under the terms of the Directors Plan at a purchase price of the lesser of 85%
of the fair market value of the shares on the first business day of the offering
period or the date the shares are purchased. No shares have been issued pursuant
to the Directors Plan as of December 31, 1998.
41
<PAGE> 42
Since the Company has adopted the disclosure-only provisions of SFAS No. 123, no
compensation cost has been recognized for the Company's compensation
instruments. The following represents pro forma information as if the Company
recorded compensation costs using the fair value of the issued compensation
instruments (the results may not be indicative of the actual effect on net
income in future years) (in thousands, except per average common share data):
<TABLE>
<CAPTION>
1998 1997 1996(1)
------------ ------------- ------------
<S> <C> <C> <C>
Net Income As Reported $20,028 $16,870 $13,374
Assumed Stock Compensation Cost 453 $ 354 281
------- -------- --------
Pro Forma Net Income $19,575 $16,516 $13,093
======= ======== ========
Diluted Earnings Per Average Common Share as Reported $ 1.34 $ 1.13 $ 0.94
======= ======= =======
Pro Forma Diluted Earnings Per Average Common Share $ 1.31 $ 1.11 $ 0.92
======= ======= =======
</TABLE>
(1) Per share information restated to reflect a two-for-one split of the
Company's common stock distributed in November 1997, see Note 11.
The fair value of options at date of grant was estimated using the Black-Scholes
valuation model with the following weighted-average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
------------ ------------- --------------
<S> <C> <C> <C>
Expected Stock Volatility 29.5% 25.9% 20.0%
Risk-Free Interest Rate 5.3% 5.8% 5.8%
Expected Option Life-Years 6.0 6.0 6.0
Expected Dividends 0.0% 0.0% 0.0%
</TABLE>
11. Common Stock Split
On October 16, 1997, the Board of Directors approved a two-for-one split of the
Company's common stock payable to shareholders of record on October 27, 1997 for
distribution on November 5, 1997. Weighted-average common shares outstanding,
common stock equivalents, and earnings per share have been restated to reflect
this stock split.
12. Stock Repurchase Authorization
On August 3, 1998, the Company's Board of Directors authorized the Company to
repurchase up to $10.0 million of its common stock. As of December 31, 1998, the
Company had repurchased 159,100 shares for approximately $3.1 million under this
authorization.
13. Reinsurance
In the normal course of business, the Company has entered into various
reinsurance contracts with unrelated reinsurers. The Company participates in
such agreements for the purpose of limiting loss exposure and diversifying
business. Reinsurance contracts do not relieve the Company from its obligation
to policyholders.
The loss and loss adjustment expense reserves ceded under such arrangements were
$16,120,000 and $13,502,000 at December 31, 1998 and 1997, respectively. The
Company evaluates the financial condition of its reinsurers to minimize its
exposure to losses from reinsurer insolvencies. The percentage of ceded
reinsurance reserves that are with companies rated "A" (Excellent) or better by
A.M. Best Company is 100% as of December 31, 1998 and 1997, respectively.
Additionally, approximately 1%, 2%, and 4% of the Company's net written premiums
for the years ended December 31, 1998, 1997, and 1996, respectively, were
assumed from an unrelated reinsurance company.
42
<PAGE> 43
The effect of reinsurance on premiums written and earned is as follows (in
thousands):
<TABLE>
<CAPTION>
Written Earned
<S> <C> <C>
For the Year Ended December 31, 1998:
Direct Business $195,697 $173,555
Reinsurance Assumed 1,712 1,181
Reinsurance Ceded 54,373 52,049
- ----------------------------------------------------------------------
Net Premiums $143,036 $122,687
- ----------------------------------------------------------------------
Percentage Assumed of Net 1.0%
======================================================================
For the Year Ended December 31, 1997:
Direct Business $157,060 $147,514
Reinsurance Assumed 2,031 2,614
Reinsurance Ceded 47,294 49,573
- ----------------------------------------------------------------------
Net Premiums $111,797 $100,555
- ----------------------------------------------------------------------
Percentage Assumed of Net 2.6%
======================================================================
For the Year Ended December 31, 1996:
Direct Business $132,611 $117,354
Reinsurance Assumed 4,244 4,466
Reinsurance Ceded 52,861 49,770
- ----------------------------------------------------------------------
Net Premiums $ 83,994 $ 72,050
- ----------------------------------------------------------------------
Percentage Assumed of Net 6.2%
======================================================================
</TABLE>
14. Profit Sharing
The Company has a defined contribution Profit Sharing Plan, which includes a
401K feature, covering substantially all employees. Under the plan, employees
may contribute up to an annual maximum of the lesser of 15% of eligible
compensation or the applicable Internal Revenue Code limit in a calendar year.
The Company makes a matching contribution in an amount equal to 50% of the
participant's pre-tax contribution, subject to a maximum of 6% of the
participant's eligible compensation. The Company may also make annual
discretionary profit sharing contributions at each plan year end. Participants
are fully vested in the Company's contribution upon completion of seven years of
service. The Company's contributions to the plan were $423,000 $474,300 and
$322,400, in 1998, 1997, and 1996, respectively.
15. Commitments and Contingencies
The Company is subject to routine legal proceedings in connection with its
property and casualty insurance business. The Company is not involved in any
pending or threatened legal or administrative proceedings, which management
believes can reasonably be expected to have a material adverse effect on the
Company's financial condition or results of operations.
The Company currently leases office space to serve as its headquarters location
and 40 field offices for its production underwriters. Rental expense for these
operating leases was $1,242,000, $916,700 and $736,700 for the years ended
December 31, 1998, 1997, and 1996, respectively.
At December 31, 1998, the future minimum rental payments required under
operating leases that have initial or remaining non-cancelable lease terms in
excess of one year as of December 31, 1998 were as follows:
<TABLE>
<S> <C>
Year Ending December 31:
1999 $ 1,618,000
2000 1,423,000
2001 1,141,000
2002 1,034,000
2003 and Thereafter 179,000
- -------------------------------------------------------------------------
Total Minimum Payments Required $ 5,395,000
=========================================================================
</TABLE>
43
<PAGE> 44
16. Summary of Quarterly Financial Information - Unaudited
The following quarterly financial information for each of the three months ended
March 31, June 30, September 30 and December 31, 1998 and 1997 is unaudited.
However, in the opinion of management, all adjustments (consisting of normal
recurring adjustments) necessary to present fairly the results of operations for
such periods, have been made for a fair presentation of the results shown (in
thousands, except share and per share data):
<TABLE>
<CAPTION>
Three Months Ended
----------------------------------------------------------------------
March 31, June 30, September 30, December 31,
1998 1998 1998 1998
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Net Earned Premiums $ 26,915 $ 29,662 $ 32,165 $ 33,945
Net Investment Income $ 2,700 $ 3,730 $ 4,446 $ 4,572
Net Realized Investment Gain (Loss) $ 3 $ 96 $ 1,609 $
(1,234)
Net Loss and Loss Adjustment Expenses $ 14,858 $ 15,949 $ 17,438 $ 18,129
Acquisition Costs and Other
Underwriting Expenses $ 8,219 $ 9,187 $ 10,159 $ 10,857
Minority Interest:
Distributions on Company Obligated
Mandatorily Redeemable Preferred
Securities of Subsidiary Trust $ $ 1,217 $ 1,742 $ 1,811
Net Income $ 4,518 $ 4,841 $ 6,076 $ 4,593
Basic Earnings Per Share $ 0.37 $ 0.39 $ 0.50 $ 0.38
Diluted Earnings Per Share $ 0.30 $ 0.32 $ 0.41 $ 0.31
Weighted-Average Common Shares
Outstanding 12,262,983 12,297,633 12,248,331 12,188,540
Weighted-Average Share Equivalents
Outstanding 2,790,988 2,839,746 2,713,348 2,822,910
------------ ------------ ------------ ------------
Weighted-Average Shares and Share
Equivalents Outstanding 15,053,971 15,137,379 14,961,679 15,011,450
============ ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
March 31, June 30, September 30, December 31,
1997(1) 1997(1) 1997(1) 1997
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Net Earned Premiums $ 22,388 $ 25,163 $ 26,492 $ 26,512
Net Investment Income $ 2,211 $ 2,404 $ 2,535 $ 2,553
Net Realized Investment Gain (Loss) $ 28 $ (59) $ 156 $ (141)
Net Loss and Loss Adjustment Expenses $ 12,481 $ 13,832 $ 14,429 $ 14,267
Acquisition Costs and Other
Underwriting Expenses $ 6,946 $ 7,858 $ 8,429 $ 8,111
Net Income $ 3,622 $ 3,992 $ 4,468 $ 4,788
Basic Earnings Per Share $ 0.30 $ 0.33 $ 0.37 $ 0.39
Diluted Earnings Per Share $ 0.25 $ 0.27 $ 0.30 $ 0.32
Weighted-Average Common Shares
Outstanding 12,133,216 12,175,688 12,223,940 12,240,286
Weighted-Average Share Equivalents
Outstanding 2,570,174 2,674,217 2,815,533 2,792,963
------------ ------------ ------------ ------------
Weighted-Average Shares and Share
Equivalents Outstanding 14,703,390 14,849,905 15,039,473 15,033,249
============ ============ ============ ============
</TABLE>
(1) Share information restated to reflect a two-for-one split of the
Company's common stock distributed in November 1997 (see Note 11).
44
<PAGE> 45
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
Certain information required by Part III is omitted from this Report in that the
registrant will file a definitive proxy statement pursuant to Regulation 14A
(the "Proxy Statement") not later that 120 days after the end of the fiscal year
covered by this Report, and certain information included therein is incorporated
herein by reference.
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information concerning the Company's director and executive
officers required by this Item is incorporated by reference to the
Proxy Statement under the caption "Management-Directors and Executive
Officers".
Item 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference to
the Proxy Statement under the captions "Executive Compensation","Stock
Option Exercises and Holdings" and "Directors Compensation".
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated by reference to
the Proxy Statement under the caption "Security Ownership of Certain
Beneficial Owners and Management".
Item 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to
the Proxy Statement under the caption "Additional Information Regarding
the Board".
PART IV
Item 14 - EXHIBITS, FINANCIAL STATEMENTS SCHEDULES, AND REPORTS ON FORM 8-K
(a) Financial Statements and Exhibits
1. The Financial Statements and Financial Statement Schedules listed in
the accompanying index on page 25 are filed as part of this Report.
2. Exhibits: The Exhibits listed on the accompanying Index to Exhibits
immediately following the financial statement schedules are filed as part of, or
incorporated by reference into, this Report.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 * Articles of Incorporation of Philadelphia Insurance, as amended to date.
3.1.1 * Amendment to Articles of Incorporation of Philadelphia Insurance.
3.2 * By-laws of Philadelphia Insurance, as amended to date.
10.1 *(1) Amended and Restated Key Employees' Stock Option Plan.
10.1.1 ********(1) Amended and Restated Key Employees' Stock Option Plan.
10.2 *(1) Key Employees' Stock Bonus Plan.
10.2.1 *(1) Excerpt of Board of Directors and Shareholders Resolution amending Key Employees' Stock
Bonus Plan.
10.6 * Casualty Excess of Loss Reinsurance Agreement No. 14P-106,401,402, effective January 1,
1990, with Swiss Re, as amended to date.
10.7 * Property Quota Share Reinsurance Agreement No. 14P-202, effective December 9, 1989, with
Swiss Re, as amended to date.
</TABLE>
45
<PAGE> 46
<TABLE>
<S> <C>
10.8 * Casualty Quota Share Reinsurance Agreement No. 14P-201, effective January 1, 1989, with
Swiss Re, as amended to date.
10.9 * Retrocession Contract No. 80101, effective October 1, 1990, with Swiss Re, as amended to
date, together with related Casualty Quota Share Reinsurance Agreement No. X21-201, as
amended to date.
10.10 * Retrocession Contract No. 81100/81101, effective October 1, 1990, with Swiss Re, as
amended to date, together with related Property Quota Share Reinsurance Agreement No.
DP2AB, effective October 1, 1990, as amended to date.
10.11 * Retrocession Contract No. 80100/80103, effective October 1, 1990, with Swiss Re, as
amended to date, together with related Casualty Quota Share Reinsurance Agreement No.
DC2ABC, effective October 1, 1990, as amended to date.
10.12 * Agreement of Reinsurance no. B367, dated June 11, 1991, with General Reinsurance
Corporation, as amended to date.
10.13 * Agreement of Reinsurance No. A271, dated July 2, 1993, with General Reinsurance
Corporation.
10.14 * General Agency Agreement, effective December 1, 1987, between MIA and Providence
Washington Insurance Company, as amended to date, together with related Quota Share
Reinsurance Agreements, as amended to date.
10.15 * E & O Insurance Policy effective July 20, 1993.
10.15.1 ******* E & O Insurance Policy effective July 20, 1996.
10.15.2 ********* E & O Insurance Policy effective July 20, 1997.
10.16 * Minutes of the Board of Directors Meeting dated October 20, 1992, and excerpts from the
Minutes of the Board of Directors Meeting dated November 16, 1992.
10.17 *(1) Letter dated July 9, 1993 from James J. Maguire, confirming verbal agreements concerning
options.
10.18 *(1) James J. Maguire Stock Option Agreements.
10.18.1 ***(1) Amendment to James J. Maguire Stock Option Agreements.
10.19 *(1) Wheelways Salary Savings Plus Plan Summary Plan Description.
10.20 * Key Man Life Insurance Policies on James J. Maguire
10.21 * Reinsurance Pooling Agreement dated August 14, 1992, between PIIC and PIC.
10.22 * Tax Sharing Agreement, dated July 16, 1987, between Philadelphia Insurance and PIC, as amended to date.
10.23 * Tax Sharing Agreement, dated November 1, 1986, between Philadelphia Insurance and
PIIC, as amended to date.
10.24 *(1) Management Agreement dated May 20, 1991, between PIIC and MIA, as
amended to date. 10.24.1 *******(1) Management Agreement dated May 20, 1991, between PIIC
and MIA, as amended September 25, 1996.
10.25 *(1) Management Agreement dated October 23, 1991, between PIC and MIA, as
amended to date.
10.25.1 *******(1) Management Agreement dated October 23, 1991, between PIC and MIA, as amended September 25, 1996.
10.26 * General Mutual Release and Settlement of All Claims dated July 2, 1993, with the
Liquidator of Integrity Insurance Company.
10.27 * Settlement Agreement and General Release with Robert J. Wilkin, Jr., dated August 18,
1993.
10.28 ** Lease tracking portfolio assignment agreement.
10.29 ****(1) James J. Maguire Split Dollar Life Insurance Agreement, Collateral Assignment and
Joint and Last Survivor Flexible Premium Adjustable Life Insurance Policy Survivorship
Life.
10.30 ***** Allenbrook Software License Agreement, dated September 26, 1995.
10.31 ***** Sublease Agreement dated August 24, 1995 with CoreStates Bank, N.A.
10.32 ***** Lease Agreement dated August 30, 1995 with The Prudential Insurance Company of America.
10.33 ******(1) Employee Stock Purchase Plan.
10.34 ******(1) Cash Bonus Plan.
10.35 ******(1) Executive Deferred Compensation Plan.
10.36 ********(1) Directors Stock Purchase Plan
10.37 ********* Lease Agreement dated May 8, 1997 with Bala Plaza, Inc.
10.38 ********* Casualty Excess of Loss Reinsurance Agreement effective
January 1, 1997, together with Property Per Risk Excess of Loss Reinsurance Agreement
effective January 1, 1997 and Property Facultative Excess of Loss Automatic Reinsurance
Agreement effective January 1, 1997.
</TABLE>
46
<PAGE> 47
<TABLE>
<S> <C>
10.39 ********* Automobile Leasing Residual Value Excess of Loss Reinsurance Agreement effective January
1, 1997, together with Second Casualty Excess of Loss Reinsurance Agreement, effective
January 1, 1997.
10.40 ********** Inspire Software License Agreement, dated December 31, 1998.
10.41 ********** Lease Agreement dated July 6, 1998 with Bala Plaza, Inc.
11 ********** Statement regarding computation of earnings per share.
21 * List of Subsidiaries of the Registrant.
23 ********** Consent of PricewaterhouseCoopers, LLP
24 * Power of Attorney
99.1 ********** Report of Independent Accountants of PricewaterhouseCoopers, LLP on Financial Statement
Schedules.
</TABLE>
<TABLE>
<S> <C>
* Incorporated by reference to the Exhibit filed with the Registrant's Form S-1 Registration
Statement under the Securities Act of 1933 (Registration No. 33-65958).
** Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31,
1993 and incorporated by reference.
*** Filed as an Exhibit to the Company's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1994 and
incorporated by reference.
**** Filed as an Exhibit to the Company's Quarterly Report on Form
10-Q for the quarterly period ended March 31, 1995 and
incorporated by reference.
***** Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31,
1995 and incorporated by reference.
****** Filed as an Exhibit to the Company's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1996 and
incorporated by reference.
******* Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31,
1996 and incorporated by reference.
******** Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1997 and incorporated by reference.
********* Filed as an Exhibit to the Company's Annual Report on Form
10-K for the year ended December 31, 1997.
********** Filed herewith.
(1) Compensatory Plan or Arrangement, or Management Contract.
</TABLE>
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the fourth quarter of 1998.
47
<PAGE> 48
SIGNATURES
Pursuant to the requirements of Section 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.
Philadelphia Consolidated Holding Corp.
By: /s/ James J. Maguire
------------------------------------------
James J. Maguire
Chairman of the Board of Directors, President,
and Chief Executive Officer
March 26, 1999
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 and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
March 26, 1999
/s/ James J. Maguire Chairman of the Board of
-------------------------------- Directors, President and Chief Executive
James J. Maguire Officer (Principal Executive Officer)
/s/ Craig P. Keller Vice President, Secretary, Treasurer, March 26, 1999
-------------------------------- and Chief Financial Officer
Craig P. Keller (Principal Financial and
Accounting Officer)
/s/ James J. Maguire, Jr. Executive Vice President & COO, Director March 26, 1999
--------------------------------
James J. Maguire, Jr.
/s/ Sean S. Sweeney Executive Vice President, Director March 26, 1999
--------------------------------
Sean S. Sweeney
/s/ William J. Henrich, Jr. Director March 26, 1999
--------------------------------
William J. Henrich, Jr.
/s/ Paul R. Hertel, Jr. Director March 26, 1999
--------------------------------
Paul R. Hertel, Jr.
/s/ Roger L. Larson Director March 26, 1999
--------------------------------
Roger L. Larson
/s/ Thomas J. McHugh Director March 26, 1999
--------------------------------
Thomas J. McHugh
/s/ Michael J. Morris Director March 26, 1999
--------------------------------
Michael J. Morris
/s/ J. Eustace Wolfington Director March 26, 1999
--------------------------------
J. Eustace Wolfington
</TABLE>
48
<PAGE> 49
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule I - Summary of Investments - Other than Investments in Related Parties
As of December 31, 1998
(Dollars in Thousands)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C COLUMN D
Estimated Amount at which
Market shown in the
Type of Investment Cost * Value Balance Sheet
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Fixed Maturities:
Bonds:
United States Government and Government
Agencies and Authorities $ 26,759 $ 26,974 $ 26,974
States, Municipalities and Political Subdivisions 112,196 117,195 117,195
Public Utilities 3,366 3,634 3,634
All Other Corporate Bonds 133,854 133,539 133,539
Redeemable Preferred Stock 2,382 2,376 2,376
-------- -------- --------
Total Fixed Maturities 278,557 283,718 283,718
-------- -------- --------
Equity Securities:
Common Stocks:
Public Utilities 141 290 290
Banks, Trust and Insurance Companies 7,011 12,308 12,308
Industrial, Miscellaneous and all other 36,289 60,170 60,170
-------- -------- --------
Total Equity Securities 43,441 72,768 72,768
-------- -------- --------
Total Investments $321,998 $356,486 $356,486
======== ======== ========
</TABLE>
* Original cost of equity securities; original cost of fixed maturities
adjusted for amortization of premiums and accretion of discounts.
S-1
<PAGE> 50
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule II
Condensed Financial Information of Registrant
(Parent Only)
Balance Sheets
(In Thousands, Except Share Data)
<TABLE>
<CAPTION>
As of December 31,
--------------------------
1998 1997
--------- ---------
<S> <C> <C>
ASSETS
Fixed Maturities Available for Sale at Market $ $ 30
Cash and Cash Equivalents (65) (3)
Mortgage Loans (a) 1,125
Equity in and Advances to Unconsolidated Subsidiaries (a) 238,292 109,540
Other Assets 14 589
--------- ---------
Total Assets $ 238,241 $ 111,281
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Income Taxes Payable (Recoverable) $ 675 $ (162)
Other Liabilities 1,178 159
--------- ---------
Total Liabilities 1,853 (3)
--------- ---------
Minority Interest in Consolidated Subsidiaries:
Company Obligated Mandatorily Redeemable Preferred Securities
of Subsidiary Trust Holding Solely Debentures of Company 98,905
--------- ---------
Commitments and Contingencies
Shareholders' Equity
Preferred Stock, $.01 Par Value, 10,000,000 Shares
Authorized, None Issued and Outstanding
Common Stock, No Par Value, 50,000,000 Shares
Authorized, 12,330,825 shares Issued and 12,242,431 Shares
Issued and Outstanding 44,796 42,788
Notes Receivable from Shareholders (1,680) (1,422)
Accumulated Other Comprehensive Income 22,417 15,023
Retained Earnings 74,923 54,895
Less Cost of Common Stock held in Treasury,
130,262 Shares in 1998 (2,973)
--------- ---------
Total Shareholders' Equity 137,483 111,284
--------- ---------
Total Liabilities and Shareholders' Equity $ 238,241 $ 111,281
========= =========
</TABLE>
(a) These items have been eliminated in the Company's Consolidated
Financial Statements.
See Notes to Consolidated Financial Statements
included in Item 8, pages 32-44.
S-2
<PAGE> 51
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule II, Continued
Condensed Financial Information of Registrant
(Parent Only)
Statements of Operations
(In Thousands)
<TABLE>
<CAPTION>
For the Years Ended December 31,
------------------------------------
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Revenue:
Dividends from Subsidiaries(a) $ 5,470 $ $
Net Investment Income 2,598 10 11
Net Realized Investment Gain, (Loss)(b) (671) 672
-------- -------- --------
Total Revenue 7,397 10 683
-------- -------- --------
Other Expenses 725 540 496
-------- -------- --------
Total Expenses 725 540 496
-------- -------- --------
Minority Interest: Distributions on Company
Mandatorily Redeemable Preferred Securities of Subsidiary Trust 4,770
-------- -------- --------
Income, (Loss) Before Income Taxes and Equity in Earnings of
Unconsolidated Subsidiaries 1,902 (530) 187
Income Tax Expense (Benefit) 675 (162) 74
-------- -------- --------
Income, (Loss) Before Equity in Earnings of Unconsolidated
Subsidiaries 1,227 (368) 113
Equity in Earnings of Unconsolidated Subsidiaries 18,801 17,238 13,261
-------- -------- --------
Net Income $ 20,028 $ 16,870 $ 3,374
======== ======== ========
</TABLE>
(a) This item has been eliminated in the Company's Consolidated Financial
Statements.
(b) $31 and $665 of this amount has been eliminated in the Company's
Consolidated Financial Statements for 1998 and 1996, respectively.
See Notes to Consolidated Financial Statements
included in Item 8, pages 32-44.
S-3
<PAGE> 52
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule II, Continued
Condensed Financial Information of Registrant
(Parent Only)
Statements of Cash Flows
(In Thousands)
<TABLE>
<CAPTION>
For the Years Ended December 31,
---------------------------------------
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net Income $ 20,028 $ 16,870 $ 13,374
Adjustments to Reconcile Net Income to Net
Cash Provided (Used) by Operating Activities:
Net Realized Investment (Gain), Loss 671 (672)
Amortization Expense (Income) (145) 68 79
Equity in Earnings of Unconsolidated Subsidiaries (18,801) (17,238) (13,261)
Change in Other Liabilities 1,019 (16) 25
Change in Other Assets 575 10 (9)
Change in Income Taxes Payable 837 (584) (88)
--------- --------- ---------
Net Cash Provided (Used) by Operating Activities 4,184 (890) (552)
--------- --------- ---------
Cash Flows From Investing Activities:
Proceeds From Maturity of Investments in Fixed
Maturities Available for Sale 569
Proceeds From Sales of Investments in Equity Securities 2,427 2,335
Cost of Fixed Maturities Available for Sale Acquired (62,753)
Cost of Equity Securities Acquired (13,721) (119)
Net Transfers to Subsidiaries (a) (28,450) (581) (2,678)
--------- --------- ---------
Net Cash Used by Investing Activities (101,928) (581) (462)
--------- --------- ---------
Cash Flows From Financing Activities:
Proceeds From Offering of Company Obligated
Mandatorily Redeemable Preferred Securities of Subsidiary
Trust 99,463
Exercise of Employee Stock Options, Net of Tax Benefit 724 723 979
Collection of Notes Receivable 570 375 207
Proceeds from Shares Pursuant to Employee Stock Purchase Plan 25 25
Cost of Common Stock Repurchased (3,100)
--------- --------- ---------
Net Cash Provided by Financing Activities 97,682 1,123 1,186
--------- --------- ---------
Net Increase (Decrease) in Cash and Equivalents (62) (348) 172
Cash and Cash Equivalents at Beginning of Year (3) 345 173
--------- --------- ---------
Cash and Cash Equivalents at End of Year $ (65) $ (3) 345
========= ========= =========
Cash Dividends Received From Unconsolidated Subsidiaries $ 5,470 $ $
========= ========= =========
Non-Cash Transactions:
Issuance of Shares Pursuant to Employee Stock Purchase Plan in exchange
for Notes Receivable $ 828 $ 873 $ 1,131
</TABLE>
(a) These items have been eliminated in the Company's Consolidated
Financial Statements.
See Notes to Consolidated Financial Statements
included in Item 8, pages 32-44.
S-4
<PAGE> 53
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule IV - Reinsurance
Earned Premiums
For the Years Ended December 31, 1998, 1997, and 1996
(Dollars in Thousands)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F
- -------------------------------------------------------------------------------------------------------------------------
Ceded to Assumed from Percentage of
Gross Other Other Amount
Amount Companies Companies Net Amount Assumed to Net
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1998
Property and Casualty Insurance $173,555 $52,049 $1,181 $122,687 1.0%
=========================================================================================================================
1997
Property and Casualty Insurance $147,514 $49,573 $2,614 $100,555 2.6%
=========================================================================================================================
1996
Property and Casualty Insurance $117,354 $49,770 $4,466 $72,050 6.2%
=========================================================================================================================
</TABLE>
S-5
<PAGE> 54
Philadelphia Consolidated Holding Corp. and Subsidiaries
Schedule VI - Supplemental Information Concerning Property -
Casualty Insurance Operations
As of and For the Years Ended December 31, 1998, 1997, and 1996
(Dollars in Thousands)
<TABLE>
<CAPTION>
Reserve for
Deferred Unpaid
Policy Claims and Discount if Net
Affiliation with Acquisition Claim any deducted Unearned Earned
Registrant Costs Adjustment in Column C Premiums Premiums
Expenses
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F
<S> <C> <C> <C> <C> <C>
Consolidated Property
- Casualty Entities
December 31, 1998 $16,853 $151,150 $0 $64,787 $122,687
December 31, 1997 $10,970 $122,430 $0 $42,116 $100,555
December 31, 1996 $ 9,033 $ 96,642 $0 $33,154 $ 72,050
</TABLE>
<TABLE>
<CAPTION>
Claims and Claims
Adjustment Expenses Amortization of
Incurred Related to deferred policy Paid Claims
Net (1) (2) acquisition costs and Claim
Affiliation with Investment Current Prior Adjustment Net Written
Registrant Income Year Year Expenses Premiums
COLUMN A COLUMN G COLUMN H COLUMN I COLUMN J COLUMN K
<S> <C> <C> <C> <C> <C> <C>
Consolidated Property
- Casualty Entities
December 31, 1998 $15,448 $69,544 ($3,170) $30,034 $40,272 $143,036
December 31, 1997 $ 9,703 $56,725 ($1,716) $25,034 $31,804 $111,797
December 31, 1996 $ 7,910 $41,083 ($965) $22,210 $22,641 $ 83,994
</TABLE>
S-6
<PAGE> 55
Philadelphia Consolidated Holding Corp. and Subsidiaries
Exhibit Index
For the Year Ended December 31, 1998
<TABLE>
<CAPTION>
Exhibit No. Page No. Description
- ----------- -------- -----------
<S> <C> <C>
3.1 * Articles of Incorporation of Philadelphia Insurance, as
amended to date.
3.1.1 * Amendment to Articles of Incorporation of Philadelphia
Insurance.
3.2 * By-laws of Philadelphia Insurance, as amended to date.
10.1 *(1) Amended and Restated Key Employees' Stock Option Plan.
10.1.1 ********(1) Amended and Restated Key Employers' Stock Option Plan.
10.2 *(1) Key Employees' Stock Bonus Plan.
10.2.1 *(1) Excerpt of Board of Directors and Shareholders Resolution
amending Key Employees' Stock Bonus Plan.
10.6 * Casualty Excess of Loss Reinsurance Agreement No. 14P-
106,401,402, effective January 1, 1990, with Swiss Re, as
amended to date.
10.7 * Property Quota Share Reinsurance Agreement No. 14P-202,
effective December 9, 1989, with Swiss Re, as amended to
date.
10.8 * Casualty Quota Share Reinsurance Agreement No. 14P-201,
effective January 1, 1989, with Swiss Re, as amended to
date.
10.9 * Retrocession Contract No. 80101, effective October 1, 1990,
with Swiss Re, as amended to date, together with related
Casualty Quota Share Reinsurance Agreement No. X21-201,
as amended to date.
10.10 * Retrocession Contract No. 81100/81101, effective October 1,
1990, with Swiss Re, as amended to date, together with
related Property Quota Share Reinsurance Agreement No.
DP2AB, effective October 1, 1990, as amended to date.
10.11 * Retrocession Contract No. 80100/80103, effective October 1,
1990, with Swiss Re, as amended to date, together with
related Casualty Quota Share Reinsurance Agreement No.
DC2ABC, effective October 1, 1990, as amended to date.
10.12 * Agreement of Reinsurance no. B367, dated June 11, 1991,
with General Reinsurance Corporation, as amended to date.
10.13 * Agreement of Reinsurance No. A271, dated July 2, 1993,
with General Reinsurance Corporation.
10.14 * General Agency Agreement, effective December 1, 1987,
between MIA and Providence Washington Insurance
Company, as amended to date, together with related Quota
Share Reinsurance Agreements, as amended to date.
10.15 * E & O Insurance Policy effective July 20, 1993.
10.15.1 ******* E & O Insurance Policy effective July 20, 1996.
10.15.2 ********* E & O Insurance Policy effective July 20, 1997.
10.16 * Minutes of the Board of Directors Meeting dated October 20,
1992, and excerpts from the Minutes of the Board of
Directors Meeting dated November 16, 1992.
</TABLE>
(E-1)
P. 55
<PAGE> 56
<TABLE>
<S> <C> <C>
10.17 *(1) Letter dated July 9, 1993 from James J. Maguire, confirming
verbal agreements concerning options.
10.18 *(1) James J. Maguire Stock Option Agreements.
10.18.1 ***(1) Amendment to James J. Maguire Stock Option Agreements.
10.19 *(1) Wheelways Salary Savings Plus Plan Summary Plan
Description.
10.20 * Key Man Life Insurance Policies on James J. Maguire
10.21 * Reinsurance Pooling Agreement dated August 14, 1992,
between PIIC and PIC.
10.22 * Tax Sharing Agreement, dated July 16, 1987,
between Philadelphia Insurance and PIIC, as
amended to date.
10.23 * Tax Sharing Agreement, dated November 1, 1986,
between Philadelphia Insurance and PIIC, as
amended to date.
10.24 *(1) Management Agreement dated May 20, 1991, between PIIC
and MIA, as amended to date.
10.24.1 *******(1) Management Agreement dated May 20, 1991, between PIIC and MIA,
as amended September 25, 1996.
10.25 *(1) Management Agreement dated October 23, 1991, between
PIC and MIA, as amended to date.
10.25.1 *******(1) Management Agreement dated October 23, 1991, between PIC and MIA,
as amended September 25, 1996.
10.26 * General Mutual Release and Settlement of All Claims dated
July 2, 1993, with the Liquidator of Integrity Insurance
Company.
10.27 * Settlement Agreement and General Release with Robert J.
Wilkin, Jr., dated August 18, 1993.
10.28 ** Lease tracking portfolio assignment agreement.
10.29 ****(1) James J. Maguire Split Dollar Life Insurance Agreement,
Collateral Assignment and Joint and Last Survivor
Flexible Premium Adjustable Life Insurance Policy
Survivorship Life.
10.30 ***** Allenbrook Software License Agreement, dated September
26, 1995.
10.31 ***** Sublease Agreement dated August 24, 1995 with CoreStates
Bank, N.A.
10.32 ***** Lease Agreement dated August 30, 1995 with The Prudential
Insurance Company of America.
10.33 ******(1) Employee Stock Purchase Plan.
10.34 ******(1) Cash Bonus Plan.
10.35 ******(1) Executive Deferred Compensation Plan.
10.36 ********(1) Directors Stock Purchase Plan.
10.37 ********* Lease Agreement dated May 8, 1997 with Bala Plaza, Inc.
10.38 ********* Casualty Excess of Loss Reinsurance Agreement effective
January 1, 1997, together with Property Per Risk
Excess of Loss Reinsurance Agreement effective January
1, 1997 and Property Facultative Excess of Loss
Automatic Reinsurance Agreement effective January 1, 1997.
10.39 ********* Automobile Leasing Residual Value Excess of Loss
Reinsurance Agreement effective January 1, 1997, together
with Second Casualty Excess of Loss Reinsurance
Agreement, effective January 1, 1997.
10.40 ********** Page 58 of 273 Inspire Software License Agreement, dated December 31, 1998.
</TABLE>
(E-2)
P. 56
<PAGE> 57
<TABLE>
<S> <C> <C>
10.41 ********** Page 85 of 273 Lease Agreement dated July 6, 1998 with Bala Plaza, Inc.
11 ********* Page 266 of 273 Statement regarding computation of earnings per share.
21 * List of Subsidiaries of the Registrant.
23 ********* Page 268 of 273 Consent of PricewaterhouseCoopers, LLP
24 * Power of Attorney
27 ********* Page 270 of 273 Financial Data Schedule
99.1 ********* Page 272 of 273 Report of Independent Accountants of PricewaterhouseCoopers, LLP
on Financial Statement Schedules.
</TABLE>
<TABLE>
<S> <C>
* Incorporated by reference to the Exhibit filed with the Registrant's Form S-1
Registration Statement under the Securities Act of 1933 (Registration No. 33-65958).
** Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1993 and
incorporated by reference.
*** Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1994 and incorporated by reference.
**** Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarterly period ended March
31, 1995 and incorporated by reference.
***** Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1995 and
incorporated by reference.
****** Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1996 and incorporated by reference.
******* Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 and
incorporated by reference.
******** Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1997 and incorporated by reference.
********* Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1997.
********** Filed herewith.
</TABLE>
(1) Compensatory Plan or Arrangement, or Management Contract.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the fourth quarter of 1998.
(E-3)
P. 57
<PAGE> 1
================================================================================
INSpire Insurance Solutions, Inc.
License Agreement
This License Agreement is made this 31st day of December, 1998 (the "Effective
Date") by and between INSPIRE INSURANCE SOLUTIONS, INC., a Texas corporation
having its principal place of business located at 300 Burnett Street, Fort
Worth, Texas, 76102, ("INSpire"), and Philadelphia Consolidated Holding Corp.
and all of its subsidiaries, including, but not limited to, Philadelphia
Insurance Company of One Bala Plaza, Ste. 100, Bala Cynwyd, Pennsylvania, 19004,
(collectively, "Client").
WHEREAS, Client has been using certain software licensed by Inspire on a trial
basis and now desires to acquire such software, in addition to other software,
under a perpetual license; and
WHEREAS, Inspire desires to license such software to Client and provide Client
with (i) related implementation services pursuant to an Implementation Support
schedule attached hereto; and (ii) support and maintenance services pursuant to
a System Maintenance schedule which is also attached hereto;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. INSpire grants to Client, and Client accepts, subject to all the terms and
conditions of this Agreement, a non-exclusive, non-transferable (except as
permitted under Section 3), perpetual License to use a property and
casualty information processing system (the "System"). The System consists
of certain computer software as more fully described in Schedule 6 of this
Agreement and the documents specified in Schedule 4 (collectively such
documents are hereinafter referred to as the "System Specifications").
2. Attached hereto are Schedules 1 through 8. Such schedules are incorporated
herein by reference as if set forth in full (except for Schedule 8), and
both parties expressly agree to be bound by them.
3. The License granted hereunder is limited to use of the System by the
Client for processing its data and files at any of Client's locations and
on any type of network, including, but not limited to, a wide area network
configuration which connects Client's locations to the System via remote
access modems.
The rights, benefits, duties, and obligations granted to Client hereunder
are personal to Client, and the Agreement may not be sold, transferred or
assigned to any third party without the express written consent of
INSpire. Any attempted sale, transfer, or assignment without such consent
shall be null, void, and of no effect. Notwithstanding the foregoing or
anything herein to the contrary, Philadelphia Consolidated Holding Corp.
shall be permitted to assign this Agreement, without the imposition of any
transfer or assignment fees, to any one of the following parties: (i)
1
================================================================================
<PAGE> 2
================================================================================
any successor by merger, acquisition, consolidation or other corporate
restructuring; (ii) any parent, subsidiary or affiliate; or (iii) any
entity which purchases all or substantially all of Philadelphia
Consolidated Holding Corp.'s or any of its subsidiaries' assets. Unless
otherwise agreed by the parties, the use of the Software System by any
assignee of Client shall be limited to processing the data, records and/or
customers of that portion of Client's business supported by the Software
System prior to assignment of this Agreement.
4. (a) INSpire warrants that for a period of one (1) year after the date of
Acceptance of the System under Schedule 5, the System will conform to the
System Specifications, except for any failure to conform caused by
Client-created error.
Should the System fail to perform in accordance with the foregoing
warranty during the warranty period, INSpire will, at its sole cost and
expense, correct the non-conformity(ies) within the following time frames
corresponding to the severity level of the failure/non-conformity:
i. Priority A -INSpire will acknowledge Priority A
failures/non-conformities within one (1) hour during normal business
hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two (2) hours
outside of normal business hours from the time the call was placed
by Client. INSpire will provide a fix or workaround within the later
of twenty (24) hours from the time the call was placed by Client or
at the start of the first business day after the call.
ii. Priority B - INSpire will acknowledge Priority B
failures/non-conformities within one (1) hour during normal business
hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two (2) hours
outside of normal business hours from the time the call was placed
by Client. INSpire will provide a fix or workaround within seventy
two (72) hours from the time the call was placed by Client.
iii. Priority C - INSpire will acknowledge Priority C
failures/non-conformities within seventy two (72) hours from the
time the call was placed by Client. INSpire will provide a fix or
workaround within seven (7) days from the time the call was placed
by Client.
For any failures/non-conformities for which INSpire provides a workaround,
INSpire will provide a schedule for the fix of such
failure/non-conformities and INSpire will use its reasonable best efforts
to provide such fix within thirty (30) days after the call was placed by
Client.
For purposes of this section 4 a., the following definitions apply:
Priority A means a failure/non-conformity that renders the System
inoperative or causes the System to fail catastrophically.
Priority B means a failure/non-conformity that significantly degrades
performance of the System or materially restricts Client's use of the
System.
Priority C means a failure/non-conformity that causes only a minor impact
on the use of the System.
2
================================================================================
<PAGE> 3
================================================================================
The priority level of each reported failure/non-conformity will be
determined jointly between Client and INSpire at the time the
failure/non-conformity is reported.
If the failure of the System to conform to the System Specifications is
due to Client-created error, Client agrees to pay for Inspire's services
(at the time and materials rates specified in Schedule 7) rendered in
analyzing and correcting the non-conformity(ies), provided that any such
non-conformity(ies) are corrected.
(b) Inspire represents and warrants that the System and all updates
thereto can and will correctly handle the change of the century in a
standard and compliant manner, including the year 2000 and beyond as well
as the leap year and the absence of leap year, and will operate accurately
in all respects with respect to date related operations. For purposes of
this Agreement, compliance with the foregoing with respect to the year
2000 shall mean that neither the performance nor the functionality of the
System will be affected by any changes caused by the advent of the year
2000.
In particular:
i. Year 2000 compliance shall mean that no value used for the current
date will cause any interruption in the operation of the System.
ii All manipulations of time-related data will produce the desired
results for all valid dates within the System, proper to, through
and beyond the year 2000.
iii Where required, data elements, interfaces and data storage will
specify the century to eliminate data ambiguity
iv Where any date element is represented without a century, the correct
century shall be unambiguous for all manipulations involving that
element.
(c) Inspire represents and warrants that it is the owner of all right,
title and interest in and to the System (except for the component noted on
Schedule 6 as being owned by Cover All Technologies, Inc., referred to
hereinafter as the "ValueRate Software" and the component noted on
Schedule 6 as being owned by Bexar, Inc., referred to hereinafter as the
"M.A.R.S. Software") and that it has the right to grant to Client the
license granted hereunder free and clear of any liens and encumbrances.
With respect to the ValueRate Software and the M.A.R.S Software, Inspire
represents and warrants that it has the rights to license such software to
Client on the terms herein stated.
(d) INSpire warrants that the System is and shall remain free of features
such as "back doors", "trojan horses" and "time bombs" through which the
System could be disabled either directly or indirectly via remote access.
(e) INSpire warrants that the System is and shall remain free of any and
all computer viruses (excluding any viruses exposed to the System by
Client) and that Inspire has taken all reasonable steps to ensure that the
System is free of such viruses.
(f) INSpire warrants that all services rendered hereunder shall be
rendered in a professional manner consistent with general industry
practices. INSpire also warrants there will be no reassignment of
resources to another client of INSpire when such reassignment would hinder
or adversely affect the successful completion of the
3
================================================================================
<PAGE> 4
================================================================================
Implementation Tasks identified on Schedule 7 of this Agreement or the
successful completion of the Acceptance Criteria identified on Schedule 5
of this Agreement.
5. Client acknowledges that the System is a confidential and commercially
valuable proprietary product of INSpire, and agrees to keep the System
confidential and not to disclose it, in full or in part, to any third
party (except its employees, accountants, attorneys, and any governmental
authority or agency) without the express written consent of INSpire, such
written consent by INSpire not to be unreasonably withheld.
Notwithstanding the foregoing, Client shall not be in breach of this
Section 5 if Client is required to disclose the System or any information
related thereto pursuant to applicable laws, rules or regulations,
government requirement, court order or in connection with the enforcement
of any of its rights or remedies under this Agreement. Client agrees, in
furtherance of this provision, to exercise at least the same degree of
care with respect to the System as it exercises with respect to its own
data, records, information, materials and processes which it deems to be
confidential and proprietary in nature.
Inspire shall hold in confidence and not disclose (except on a
confidential basis to its employees who need to know and who are informed
of their confidentiality obligations) all Confidential Information
received from Client in the same manner and to the same extent as it holds
in confidence its own Confidential Information, and shall not use any such
Confidential Information except for purposes contemplated by this
Agreement. As used in this Agreement, "Confidential Information" shall
mean all confidential and proprietary information, including but without
limitation, components, drawings, data, plans, programs, specifications,
techniques, processes, inventions or other information or material, owned,
possessed or used by Client which is disclosed orally, in writing or is
viewed by Inspire. In the event of a breach by Inspire of its obligations
under this paragraph, Client will suffer irreparable harm, Client's
remedies at law will be inadequate and Client shall have, in addition to
any other remedies it may have, the right to obtain injunctive relief to
restrain any breach or threatened breach thereof
Except to the extent retained in connection with the enforcement of its
rights and remedies under this Agreement, upon termination of this
Agreement, Client shall return to INSpire any and all copies of the
System, or any portion thereof, whether said copies were created by
INSpire or by Client.
It is expressly agreed by the parties that the termination of this
Agreement will not terminate their obligations under this paragraph.
6. APART FROM THE WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, INSpire MAKES
NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE CAPABILITIES,
PERFORMANCE, SPECIFICATIONS, OR CHARACTERISTICS OF THE SYSTEM.
Neither party will be responsible to the other for any incidental or
consequential damages, including but not limited to loss of business or
business profits, regardless of whether said damages were foreseeable.
Notwithstanding anything herein to the contrary, the foregoing limitations
on INSpire's liability shall not apply to (i) damages arising from
INSpire's willful misconduct; or (ii) the following paragraph.
4
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<PAGE> 5
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Notwithstanding anything in this Agreement to the contrary, INSpire shall
pay Client as liquidated damages and not as a penalty, $10,000 per week
for each full week that completion of Implementation (as specified in
Schedule 7) is later than the Implementation Date (as defined in Schedule
7). Any such damages owed Client, as calculated weekly, shall be paid
within five (5) days of the end of the week giving rise to such damages.
Payment of liquidated damages owed to Client by INSpire (as described in
the above paragraph) in excess of any monies actually paid by Client to
INSpire under Schedule 2--Payment Terms of this License Agreement may, at
INSpire's option, be done in the form of a credit to Client towards any
future monies owed by Client under this License Agreement. However, if
this License Agreement is terminated by either party for any reason, all
liquidated damages owed to Client by INSpire, including any that have been
credited in accordance with the foregoing sentence, shall be paid within
five (5) days of the effective date of termination.
7. (a) INSpire warrants that it is the owner of the System (except for the
ValueRate and M.A.R.S Software) and has the right to license it to Client.
INSpire further warrants that the System does not infringe upon the
proprietary interest or intellectual property rights of any third party.
Client agrees to promptly inform INSpire in writing should it become aware
of any claim or allegation that the System infringes upon the copyright,
patent, trademark or any other proprietary right of a third party, in
which event INSpire shall defend, indemnify and hold Client harmless from
and against any such allegation, claim or action at its own expense, and
to pay all costs (including reasonable attorneys' fees) incurred by, and
damages finally awarded against, Client or paid by Client in settlement of
such action. Client agrees to cooperate with said defense by complying
with INSpire' reasonable instructions and requests to Client in connection
with said defense. If, as the result of any such claim or action, Client
is unable to use the System or any material portion thereof, Client shall
have the right to terminate this Agreement upon written notice to INSpire,
in which case INSpire shall promptly refund all fees previously paid by
Client to INSpire hereunder.
(b) INSpire agrees to indemnify, defend and hold harmless Client and its
directors, officers and employees (collectively, the "Indemnified
Parties") from and against all claims, losses, liabilities, damages and
expenses (including reasonable legal fees and expenses) suffered or
incurred by any of them resulting from, based upon, relating to or arising
out of (i) a breach of any warranties made by INSpire herein, (ii) a
breach by INSpire of any of its obligations hereunder, (iii) the conduct
of INSpire, its employees, agents and subcontractors and any breach or
violation of law.
8. Upon delivery of the System to Client, the risk of loss, damage or
destruction shall be borne by Client. In the event of such loss, damage or
destruction, INSpire agrees to furnish replacement materials at its
reasonable costs but in no event be liable for the loss or replacement of
Client's data used with the System except as otherwise provided for in
this agreement.
9. Subject to the limitations on assignment contained in Paragraph 3, above,
this Agreement shall be binding upon the parties hereto, their legal
representatives, successors, subsidiaries and assigns.
5
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<PAGE> 6
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10. In addition to the payment specified in this Agreement, Client shall pay
any present or future sales, excise, use, value-added or other similar
taxes or duties levied or based on payments made pursuant to this
Agreement or on the System in regard to its use by Client or on the
Agreement. INSpire agrees to promptly remit all taxes collected from
Client to the appropriate taxing authority.
11. Neither party shall, without the express written consent of the other
party, directly or indirectly induce or attempt to induce any employee of
the other party to terminate his or her employment with the other party or
hire any employee of the other party.
12. This Agreement may be terminated by INSpire for nonpayment of any monies
due hereunder after thirty (30) days written notice from INSpire, or if
Client fails to comply with the confidentiality provisions contained
herein and Client fails to cure such failure or make such payment within
thirty (30) days of written notice from INSpire. Such termination shall
not affect any other remedy for said breach to which INSpire may be
entitled.
This Agreement may be terminated at any time by Client provided that
Client (1) return all System materials to INSpire, (2) pay to INSpire the
balance of any unpaid license fees (except where termination is due to (i)
a breach of this Agreement by Inspire or (ii) rejection of the System by
Client in accordance with Schedule 5), (3) pay to INSpire any unpaid
service fees for work performed under this Agreement. Upon termination,
INSpire shall not be responsible for the refund of any monies paid
hereunder, except as otherwise provided in this Agreement. If Client
terminates this Agreement as the result of a breach by INSpire which has
remained uncured past the time frames outlined in section 4 a. of this
Agreement INSpire shall promptly refund all fees paid by Client under this
Agreement in accordance with the following refund schedule:
i. 100% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs within one year from the Effective Date
of this Agreement or within one year from the date of Acceptance (as
defined in schedule 5) of the System by Client, whichever is later.
ii. 50% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after one year, but less than two years,
from the date of this Agreement or the date of Acceptance of the
System by Client, whichever is later.
iii. 25% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after two years, but less than three
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
iv. 12.5% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after three years, but less than four
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
6
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<PAGE> 7
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v. 6.25% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after four years, but less than five
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
13. This agreement shall be governed by any applicable provisions of the
Uniform Commercial Code, unless the provisions of this Agreement are
inconsistent therewith.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of Pennsylvania, excluding that body of laws of such
state dealing with conflicts of law.
15 This Agreement supersedes all prior communications and agreements between
the parties relating to the subject matter of this Agreement and
constitutes the full understanding between the parties with respect
thereto. No waiver of any provision of this Agreement or of any breach and
no modification or supplement hereto shall be binding, unless in writing
and signed by an officer of INSpire and Client, and no waiver shall apply
to any subsequent breach of the same or similar provision.
16. A waiver of a breach or default under this Agreement shall not be a waiver
of any other breach or default. Failure of either party to enforce
compliance with any term or condition of this Agreement shall not
constitute a waiver of such term or condition unless accompanied by a
clear written statement that such term or condition is waived.
17. Except as otherwise provided in this Agreement, any notices required or
permitted to be given under this Agreement shall be in writing and shall
be deemed given if delivered in person or when sent by registered or
certified mail (return receipt requested) with postage and registration or
certification fees thereon prepaid, addressed to the party at its address
set forth below:
If to Inspire: ATTN: President
Inspire Insurance Solutions, Inc.
300 Burnett Street
Fort Worth, TX 76102
If to Bexar: ATTN: President
Bexar, Inc.
2356 Hassell Rd. Suite A
Hoffman Estates, Illinois 60195
If to Client: Jack T. Carballo
Vice President of Insurance Operations
Philadelphia Insurance Companies
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004
7
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18. Termination of this Agreement shall not terminate or negate any
obligations of either party which have accrued prior to termination and
which, by their nature, are intended to survive termination, including,
but not limited to, Sections 5, 6, 7 and any other provisions under which
Client is entitled to a refund of fees.
19. Prior to commencement of any services under this Agreement, INSpire shall
place and maintain with responsible insurance carriers reasonably
acceptable to Client, policies of insurance described in this section with
the coverage amounts required herein. Inspire shall, if requested by
Client, deliver to Client copies of certificates evidencing such
insurance, which shall designate Client as an Additional Insured on the
Commercial General Liability policy only (not a named insured) and which
shall provide thirty (30) days prior written notice to Client in the event
of cancellation or other termination of same, as follows:
(a) Comprehensive General Liability. INSpire shall procure
Comprehensive General Liability coverage including Blanket
Contractual, Broad Form Property Damage, Completed Operations and
Independent Contractor's Liability with a minimum limit of liability
in the amount of $2,000,000. This coverage may be provided under
INSpire's Umbrella Liability policy and shall be in the form of
"occurrence" coverage.
(b) Workers' Compensation. INSpire shall procure Workers'
Compensation at the statutory limits in compliance with the
applicable State and Federal Laws.
(c) E & 0 and Professional Liability. INSpire shall procure Error
and Omission and Professional Liability coverage with a minimum
limit of liability of $2,000,000 each claim. This coverage shall be
in the form of "claims made" coverage. This coverage shall not have
any retention or deductible in excess of $250,000 per claim.
(d) Comprehensive Automobile Liability. INSpire shall procure
Comprehensive Automobile Liability Insurance including coverage for
Personal Injury, Bodily Injury and Property Damage with a minimum
combined single limit of liability of $l,000,000.
(e) Directors & Officers Liability. INSpire shall procure Directors
& Officers Liability coverage with a minimum limit of liability of
$5,000,000 each claim. This coverage shall be in the form of "claims
made" coverage. This coverage shall not have any retention or
deductible in excess of $250,000 per claim.
8
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<PAGE> 9
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IN WITNESS HEREOF the parties have caused the signatures of their duly
authorized officers to be hereunto affixed.
INSpire Insurance Solutions, Inc.
License Agreement
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
Bexar, Inc. agrees to be bound by this Agreement as a guarantor of INSpire's
obligations with respect to the MARS Software.
BEXAR, INC.
By: /s/ RIC DEBEJAR
------------------------------
Name: RIC DEBEJAR
------------------------------
Title: President
------------------------------
Date: January 25, 1999
------------------------------
9
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Supplemental Conditions
Schedule 1 -- Hardware
Hardware Requirements
The System must be capable of supporting 200 simultaneous users with the
following response time:
*Local Connections -- 5 seconds or less
*Remote Connections -- 10 seconds or less
The System must be fully functional in the following environments:
Workstation:
Workstations consist of personal computers running Window 95 or Windows 98 or
Windows NT Workstation. Machines should be 300MH Pentium Processor with a
minimum of 64MB of memory for Win95/98 or 64MB of memory for Windows NT
Workstation. The workstations connect to the network using Novell NetWare Client
32 Version 2.x or higher. The display should be SVGA (800x600x256) capable. The
system does not require any local disk storage on the client machine.
System/Database Servers:
Servers consist of Compaq Proliant Series machines using the Compaq internal
disk array or Data General Aviion series machines utilizing a Clariion disk
array in raid 5 configuration. The database server should be any machine running
an operating system (OS), for which a version of Oracle is available. Operating
systems include Novell NetWare 3.12 or higher, Windows NT 3.51 or higher.
Local Area Network
The network environment is a 10/100 MB Ethernet network using Intel 10/100
network interface cards and a mix of Intel and Synoptics 10/100 hubs. These are
connected to the servers via a Cisco catalyst 5500 LAN switch.
Wide Area Network:
The wide area network is a combination of frame relay and dial-up networking.
The frame relay network is a point to point methodology, using Cisco routers and
Motorola FT100 CSU/DSU's to link to the home office. The dial-up network
utilizes VPN or Internet tunneling technology to connect to the home office. All
wide area strategies use Citrix as the operating client for remote processing.
The System must be compatible with multiple Citrix Winframe and Metaframe
products.
10
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Schedule 1 -- Hardware, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
11
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Supplemental Conditions
Schedule 2 -- Payment Terms
Payment Terms
A. License Agreement
1. 25% of license fee upon execution of License Agreement.
2. 75% of license fee upon Acceptance, as defined in
Schedule 5 of this Agreement.
Client may, at its sole option, elect to accept and use any
one of the individual components that collectively
comprise the System (as such components are identified
in Schedule 4 of this Agreement) even though the
remaining components may not collectively meet the
Acceptance Criteria referenced in Schedule 5 of this
Agreement. If Client elects such an option, then Client
must pay INSpire the full amount of the license fee
applicable to such component as listed on Schedule 6 of
this Agreement.
B. All work performed by INSpire under (i) Section 4(a) for
client-caused errors; (ii) Schedule 3 for training in excess
of training included in the license fees; or (iii) Schedule 7
for implementation, shall be billed on an hourly basis each
month in accordance with the rates specified in Schedule 7.
All payments shall be due and payable within thirty (30) days
of receipt of invoice.
C. Other Expenses
In addition to the payments provided for above, Client will
pay INSpire for the following miscellaneous personnel
expenses:
1. Mileage at the IRS published rate in force on the date
incurred.
2. All other reasonable travel and lodging expense incurred
by INSpire personnel pursuant to this Agreement and
approved in advance by Client.
3. Out-of-pocket expenses for meals or other expenses not
specified elsewhere in this schedule and approved in
advance by Client.
4. Any work performed by INSpire at the written request of
Client outside the scope of services already contracted
for within the terms of this Agreement will be billed by
INSpire on a time and expense basis at the rates
specified in Schedule 7. All work performed on a time
and expense basis must be approved by Client in writing
before actually being performed by INSpire. If such work
is not approved by Client in writing before such work is
performed then Client is not obligated to pay for the
work.
D. Source Code
Payment of the license fee guarantees to Client the source
code for the System (excluding the ValueRate and M.A.R.S.
Software), and INSpire shall deliver such source code
12
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Schedule 2 -- Payment Terms, continued
(including a copy of all source code documentation relating
thereto) promptly following Acceptance. With respect to the
M.A.R.S. Software, Bexar agrees to enter into a mutually
acceptable source code escrow agreement with Client within
thirty days of the Effective Date of this Agreement. Among
other terms customarily found in such agreements, Bexar will
agree to a release of the M.A.R.S. Software source code to
Client in the event INSpire ceases to be a going concern,
INSpire commences a voluntary bankruptcy proceeding, or an
involuntary bankruptcy proceeding is commenced against
INSpire, or INSpire fails to support and maintain the M.A.R.S.
Software in accordance with the terms of this Agreement.
With respect to the ValueRate Software, INSpire agrees to
enter into a mutually acceptable source code escrow agreement
with Client within thirty days of the Effective Date of this
Agreement. Among other terms customarily found in such
agreements, INSpire will agree to a release of the ValueRate
Software source code to Client in the event INSpire ceases to
be a going concern, INSpire commences a voluntary bankruptcy
proceeding, or an involuntary bankruptcy proceeding is
commenced against INSpire, or INSpire fails to support and
maintain the ValueRate Software in accordance with the terms
of this Agreement. INSpire warrants that it has the authority
of Cover All Technologies, Inc. to enter into such an escrow
agreement regarding the ValueRate Software source code.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
13
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Supplemental Conditions
Schedule 3 -- Training/Installation/Documentation
Training
A. The training classes specified below in Section B for the
System as accepted without customizations (including both user
and operational training) are included in the license fee.
Training courses are conducted by INSpire personnel at the
Client site in a classroom setting equipped with workstations,
overhead projectors, a visual display unit, a flip chart,
and/or a dry erase board whenever possible. Course books are
provided for up to twenty students in each class. Workshops or
exercises are included in the class in order to provide the
participants with practical hands-on use of the system.
Additional or customized training requested by the Client is
available on a time and materials basis at the rates specified
in Schedule 7.
B. The following is a list of Base System classes (one session
each) included in the license fee for Client:
WPC User Courses
1. Administrator/Operator Training -- INSpire 200
2. Premium System Training (including Billing) -- INSpire 107
3. Claims System Training -- INSpire 112
4. Financials Training -- INSpire 114
5. Reference File Training -- INSpire 119
6. Open Item Reconciliation System Training -- INSpire 111
7. Agency System Training -- INSpire 105
ValueRate
8. System Administration Training
9. Policy Administration and Rating Training
M.A.R.S.
10. User Training, Class 1 (8 hours)
11. Technical Training, Class 2 (8 hours)
C. Training is limited to a reasonable number of people per
class, not to exceed 20. Additional materials and training for
more than twenty people will be provided on a time and
materials basis at the fees stated in Schedule 7.
Installation
A. Installation of the System is included in the implementation fees.
Installation consists of: INSpire's technicians loading the System on Client's
servers, network & workstations. Value Rate, M.A.R.S. & WPC will be installed on
both Client's LAN and CITRIX servers. The following products/components are
included as part of Installation:
14
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<PAGE> 15
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Schedule 3 -- Training/Installation/Documentation, continued
o Value Rate software with the following specifications:
- Oracle database.
- Capable of running all states (excluding Massachusetts automobile &
all coverage lines for Hawaii).
- Configured to support the following six coverages: General
Liability, Inland Marine, Crime, Glass, Commercial Auto, and Commercial
Property (inclusive of Boiler & Machinery, Earthquake, & Flood).
- Configured with Client's individual State rate effective dates.
- Configured with Client's individual State loss cost multipliers.
- Configured with Client's modifications to accept product codes &
expanded producer profile.
o Transfluent interface software capable of processing all states (excluding
Massachusetts automobile & all coverage lines for Hawaii).
o 32-bit WPC software with an Oracle database.
o PSP software.
o Batch Scripts needed to run Transfluent interface.
o Open Door software needed to run Transfluent interface.
o Managerial and Actuarial Reporting System (M.A.R.S.) reporting Software.
Documentation
A. The Client is provided with one printed set of user documentation
reflecting the System. The Client is permitted to make additional
copies as necessary.
B Documentation is also available on-line using Microsoft Word and
Doc-To-Help.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
15
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<PAGE> 16
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System Specifications
Schedule 4
System Specifications
The System Specifications are comprised of the following:
o Value Rate -- as collectively outlined, defined and described in the
Commercial Package Policy Application Description Manual dated 12/02/98,
the Commercial Auto Application Description Manual dated 12/02/98 and the
Philadelphia Insurance Companies' Commercial Umbrella Underwriting
Guideline dated 1/1/97.
o Transfluent, a software product which maps and translates data from one
format to another. This translation is controlled by user configurable
parameters. In the INSpire total processing solution, these parameters are
pre-set and are used to convert data which has been entered and calculated
in Value Rate to WPC on a nightly basis. This facilitates a single point
of entry. Inclusive in this component is the tool known as "Open Door". It
is hereby warranted by INSpire that the nightly batch process performed
via this Transfluent component of the System will take no longer than two
hours to process a minimum of 200 policies a night. It is agreed that the
nightly batch process will be performed only on a stand-alone machine as
described in Schedule 1 of this Agreement. "The Nightly Batch Process" is
defined as inclusive of all of the following functions:
a.) the extraction of data from Value Rate
b.) the conversion of data from Value Rate to WPC using
Transfluent
c.) executing all edit processing using WPC's Open Door facility
d.) executing all WPC batch jobs, not including printing, needed
to update the WPC database
o WPC -- as outlined, defined and described in the WPC Windows into Property
and Casualty Base Functionality Document, Version 6.
o PSP Policy Set Production -- as outlined, defined and described in the PSP
Base Functionality Document (WPC/EmPOWER Interface) dated 12/02/98
o Base Reports - as presented in the WPC Base Reports Documentation
o Managerial and Actuarial Reporting System (MARS) report writer software
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
16
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<PAGE> 17
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Systems Acceptance Test
Schedule 5
Systems Acceptance Test
1. Within twenty (20) business days of completion of
implementation of the System in accordance with Schedule 7,
Client, with INSpire's assistance, shall test the functional
capabilities of the System and determine whether the System
satisfies all of the criteria set forth on the attachment to
this Schedule 5 (collectively, the "Acceptance Criteria").
If the System satisfies all of the Acceptance Criteria as
reasonably determined by Client, the System shall be deemed to
be accepted ("Acceptance"). If any of the criteria are not
satisfied as reasonably determined by Client, the System shall
not be accepted and INSpire shall have as many additional days
as they feel necessary to remedy the problems which caused the
System to fail to satisfy the Acceptance Criteria. When
INSpire advises Client that the problems have been remedied
the parties shall again determine whether the System satisfies
all of the Acceptance Criteria. Notwithstanding the above, if
the System fails to satisfy all of the Acceptance Criteria as
reasonably determined by Client by August 1, 1999 Client shall
have the option, in its sole discretion, to (i) terminate this
Agreement immediately and receive a refund of all license,
maintenance and implementation fees paid hereunder; or (ii)
allow INSpire to continue to attempt to remedy the problems
which caused the System to fail to satisfy all of the
Acceptance Criteria. If Client elects to allow INSpire to
continue past August 1, 1999 with its attempts to remedy the
problems causing failure to satisfy all of the Acceptance
Criteria, Client still retains its right to terminate this
Agreement at any time thereafter and receive a refund of all
license, maintenance and implementation fees paid hereunder,
within 10 days of termination.
In no event shall Client be obligated to accept the System if
the Acceptance Criteria have not been satisfied within the
time frame indicated above or any other time frame which the
parties may, in Client's sole discretion, agree to in writing.
The Acceptance test will be performed on the hardware
specified on Schedule 1 of this Agreement.
"ACCEPTANCE CRITERIA"
1. The Value Rate software component of the System must allow the Client to:
o Enter Client test package policies including independent (non-ISO)
filed coverages
o Specify Client's product codes, bill plans & commission plans
o Accurately rate test policies with standard ISO
o rates & Client specified rate effective dates and loss cost
multipliers for the 48 states and coverages identified in the
definition of Installation in Schedule 3 of this Agreement.
o Accurately rate test policies with rate overrides.
o Create appropriate rating worksheets
o Convert policies from quote status to bound status.
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<PAGE> 18
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Schedule 5, continued
o Fully print test policies including declaration pages,
sub-declarations pages and all standard ISO endorsements.
2. The Transfluent software component of the System must allow the Client to:
o Successfully transport all applicable and necessary fields
from Value Rate to WPC as per the "Nightly Batch Process"
defined under Schedule 4, System Specifications, of this
Agreement.
3. The WPC software component of the System must allow the Client to:
o Accurately capture premium and policy data from the Value Rate
system including but not limited to product code, billing,
commission and statistical information.
o Accurately perform customer service functions
o Accurately enter Cash payment for each of the bill types.
o Accurately create a cash adjustment.
o Accurately create a refund a check.
o Accurately enter flat & midterm cancellations.
4. The PSP software component of the System must allow the Client to run
daily cycles to:
o Accurately print agency, direct and account bills.
o Accurately print commission statements.
o Accurately print reports as specified by the INSpire Base
Reports documentation referenced in Schedule 4 of this
Agreement.
o Accurately enter and process claims
5. The M.A.R.S. software component of the System must allow the Client to
define, extract and print management reports from the data contained
within the ValueRate and WPC software components of the System.
6. In addition to the specific functionality of the items listed in
paragraphs 1. through 5. above, the functionality of all processes
specifically identified in the documentation referenced in Schedule 4 of
this Agreement as System Specifications are considered part of this
Acceptance Criteria.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
18
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<PAGE> 19
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License Costs
Schedule 6
License Fee Schedule
The System includes the following:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Windows into Property & Casualty (WPC) System, as per
Schedule 4
<S> <C>
License Fee: $645,000
- --------------------------------------------------------------------------------
Policy Set Production (PSP) as per Schedule 4
License Fee: $ 30,000
- --------------------------------------------------------------------------------
* ValueRate as per Schedule 4
- Commercial Package Policy (excluding HI)
- Commercial Auto with Garage (excluding MA and HI)
- Commercial Texas Auto
- Commercial Umbrella Policy (all states)
License Fee: $560,700
- --------------------------------------------------------------------------------
** Managerial and Actuarial Reporting System (M.A.R.S.)
software as per Schedule 4
License Fee: $ 88,800
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total License Fee: 1,324,500
- --------------------------------------------------------------------------------
</TABLE>
* Owned by Cover All Technologies, Inc.** Owned by Bexar, Inc.
19
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<PAGE> 20
Schedule 6, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
20
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<PAGE> 21
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Implementation Services
Schedule 7
Implementation Services
INSpire shall implement the System for Client by June 1, 1999 (the
"Implementation Date"). Implementation shall consist of successful
completion of the following tasks (collectively, the "Implementation
Tasks"):
1. ValueRate will be modified to support Client's Product Code and Account
Number scheme.
2. ValueRate, Transfluent and WPC will be modified to accommodate Client's
expanded Producer Profile.
3. Satisfaction of the Acceptance Criteria in accordance with Schedule 5.
A flat fee of $30,000 will be paid by Client for the implementation of the
WPC component of the System in accordance with the payment terms listed on
Schedule 2, section A of this Agreement. (i.e., 25% upon execution and 75%
upon Acceptance)
A flat fee of $30,000 will be paid by Client for the implementation of the
ValueRate component of the System in accordance with the payment terms
listed on Schedule 2, section A of this Agreement. (i.e., 25% upon
execution and 75% upon Acceptance)
A flat fee of $105,000 will be paid by Client for INSpire to successfully
implement items #1 and #2 listed above under Implementation Services as
well as for INSpire to perform all functions necessary (inclusive of
building and populating all user tables) in order for the System to be
tested by Client in accordance with the System Acceptance Test listed on
Schedule 5 of this Agreement. Payment of this flat fee of $105,000 will be
in accordance with the payment terms listed on Schedule 2, section A of
this Agreement. (i.e., 25% upon execution and 75% upon Acceptance)
A flat fee of $1,200 will be paid by Client for the implementation of the
M.A.R.S. component of the System in accordance with the payment terms
listed on Schedule 2, section A of this Agreement. (i.e., 25% upon
execution and 75% upon Acceptance)
The implementation and license fees agreed to in this Agreement do not
include any travel and lodging expense incurred by INSpire personnel in
meeting INSpire's obligations under this Agreement. Such expenses will be
paid by Client in accordance with Schedule 2 of this Agreement.
Except for services rendered for a "flat fee", it is agreed that INSpire
will bill all work performed on an hourly basis as allowed for in this
Agreement at a rate of $150.00 per hour with the exception of the
following:
INSpire will provide to Client, free of charge, 75 hours of Consulting
time to assist Client with the development of Interfaces with the WPC
product.
21
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<PAGE> 22
================================================================================
Schedule 7, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
22
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<PAGE> 23
================================================================================
System Maintenance
Schedule 8
This Schedule 8 shall become effective only upon Acceptance of the System
under Schedule 5.
INSpire shall provide Client with System maintenance services on the terms
described below, In the event of a conflict between the terms of this
Schedule 8 and the Agreement (including the other Schedules) the terms of
this Schedule 8 shall control.
Warranty
INSpire warrants that while this Schedule is in effect, the System
will conform to the System Specifications. INSpire will, at its sole
cost and expense correct any failures or non-conformity(ies) within
the following time frames corresponding to the severity level of the
failure/non-conformity:
i. Priority A - INSpire will acknowledge Priority A
failures/non-conformities within one (1) hour during normal
business hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two
(2) hours outside of normal business hours from the time the
call was placed by Client. INSpire will provide a fix or
workaround within the later of twenty (24) hours from the time
the call was placed by Client or at the start of the first
business day after the call.
ii. Priority B - INSpire will acknowledge Priority B
failures/non-conformities within one (1) hour during normal
business hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two
(2) hours outside of normal business hours from the time the
call was placed by Client. INSpire will provide a fix or
workaround within seventy two (72) hours from the time the
call was placed by Client.
iii. Priority C - INSpire will acknowledge Priority C
failures/non-conformities within seventy two (72) hours from
the time the call was placed by Client. INSpire will provide a
fix or workaround within seven (7) days from the time the call
was placed by Client.
For any failures/non-conformities for which INSpire provides a
workaround, INSpire will provide a schedule for the fix of such
failure/non-conformities and INSpire will use its reasonable best
efforts to provide such fix within thirty (30) days after the call
was placed by Client.
For purposes of this Schedule 8, the following definitions apply:
Priority A means a failure/non-conformity that renders the System
inoperative or causes the System to fail catastrophically.
Priority B means a failure/non-conformity that significantly
degrades performance of the System or materially restricts Client's
use of the System.
Priority C means a failure/non-conformity that causes only a minor
impact on the use of the System.
23
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<PAGE> 24
================================================================================
Schedule 8, continued
The priority level of each reported failure/non-conformity will be
determined jointly between Client and INSpire at the time the
failure/non-conformity is reported.
If the failure of the System to conform to the System
Specifications is due to Client created error, Client agrees
to pay (at the time and materials rates specified in Schedule
2) for the services rendered in analyzing and correcting the
failure, provided that any such non-conformity(ies) are
corrected to the reasonable satisfaction of Client.
Enhancements
INSpire shall make available all version upgrades and
enhancements to the System. Client shall not be charged
a license fee for any version upgrades and enhancements
developed during the term of this Schedule.
Telephone Support
Inspire shall provide technical support via toll-free
telephone during the hours of 8:00 a.m. CST -- 5:00 p.m.
CST Monday through Friday excluding national holidays.
All calls placed before 1 P.M. shall be returned before
5 P.M. that same day. All other calls shall be returned
before 11 A.M. the next business day.
Update Services
INSpire will provide the Client with periodic releases of the System
("Updates") which contain error corrections and/or minor changes to the
existing feature/functionality of the System. Each Update will consist of
a set of programs and files made available in the form of machine readable
media and will be accompanied by a level of documentation adequate to
inform Client of the problems resolved by such Update (including any
significant differences resulting from such Update which are known by
INSpire) and how to install such Update.
Support Services
INSpire will provide support services (in addition to the basic Support
Services described above) in the form of "ISO Updates." Such ISO Update
services are as follows:
INSpire will issue periodic ISO Update software releases to the Client.
Such software releases (which are considered part of the System) shall be
licensed to the Client for use in accordance with the licensing provisions
of this Agreement. In addition, Client shall be responsible to obtain any
other license (from ISO) which may be required to permit its use of such
ISO Update software. Each ISO Update software release will consist of a
set of programs and files made available in the form of machine readable
media and will be accompanied by a level of documentation adequate to
inform Client of the changes and/or additions to the ISO rules covered by
such ISO Update software release. Additionally, ISO Updates will reflect
changes and/or additions to ISO rules for all of the software programs
forming the System. ISO
24
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<PAGE> 25
================================================================================
Schedule 8, continued
Updates will be based upon (1) normal and customary ISO rule changes
and/or additions and (2) upon INSpire's standard interpretation of any
such ISO rule change and/or new ISO rule. ISO Updates shall not include
any Federal, state or other requirements which are not comprised in or
reflected by a standard ISO rule change and/or addition. Client shall
install all ISO Updates in a timely manner as reasonably determined by
Client.
Extensive ISO Updates
"Extensive ISO Updates" are software releases which reflect
any ISO rule changes and/or additions which are in
excess of the normal and customary ISO rule changes
and/or additions addressed by the ISO Update services
described in the preceding paragraph. Any such Extensive
ISO Update may be licensed by Client in accordance with
and subject to the licensing provisions of this
Agreement. Each Extensive ISO Update will consist of a
set of programs and files made available in the form of
machine readable media and will be accompanied by a
level of documentation adequate to inform Client of the
changes and/or additions to the ISO rules covered by
such Update as well as how to install such Update.
Extensive ISO Updates are based upon INSpire's standard
interpretation of any such extensive ISO rule change
and/or new ISO rule.
Term
This Schedule shall take effect on the date the System is
accepted by Client in accordance with the terms of
Schedule 5 of this Agreement and shall continue until
terminated by Client, with or without cause, upon thirty
(30) days prior written notice to INSpire. Upon
termination, INSpire shall refund to Client any
maintenance fees paid in advance hereunder.
Renewal Changes
INSpire reserves the right to change, for each year this
Schedule remains in effect after the first year, the
fees charged hereunder, provided that such fees shall
not be increased per year by more than five percent (5%)
of the dollar amount charged during the expiring year.
Expenses
Client shall reimburse INSpire in accordance with Schedule 2,
Section C.
Fees
Upon Acceptance, Inspire shall invoice and Client shall pay within 10
days the amount of $198,675.00(the "Maintenance Fee") for one year of
coverage under this Schedule. Thereafter, on every anniversary of the date
of Acceptance, so long as this Schedule remains in effect, INSpire shall
invoice and Client shall pay the dollar
25
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<PAGE> 26
================================================================================
Schedule 8, continued
amount equal to 18% of the total license fee paid under this Agreement.
Client shall pay all such invoices within ten (10) days.
Source Code
INSpire shall provide Client with a copy of the source code (and
accompanying documentation) for all software provided under this Schedule
(excluding the ValueRate Software, M.A.R.S. Software and any other third
party software). All such source code shall be provided to Client within
thirty (30) days of the date upon which the corresponding object code is
provided.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
26
================================================================================
<PAGE> 1
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment") is made on this 6th day
of July, 1998, by and between BALA PLAZA, INC., a Delaware corporation
("Landlord"), PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania
corporation ("Tenant").
BACKGROUND
A. The Prudential Insurance Company of America ("Prudential") and Tenant
entered into a certain Lease, dated as of August, 1995 (the "Original Lease"),
pursuant to which Prudential leased to Tenant approximately 16,880 rentable
square feet of space on the first floor and 3,550 rentable square feet of space
on the lower level (collectively, the "Premises") of the building known as One
Bala Plaza ("Building") and upon lands located in Bala Cynwyd, Lower Merion
Township, Montgomery County, Pennsylvania (the "Property"). The Premises are
more fully described in the Original Lease.
B. Thereafter Landlord succeeded to the right, title and interest of
Prudential in and to the Building and the Property, and all of Prudential's
right, title and interest as the "Landlord" under the Original Lease was
assigned to Landlord.
C. Landlord and Tenant then entered into a First Amendment of Lease, dated
May 8, 1997 ("First Amendment"), pursuant to which the parties amended the
Original Lease to, among other things, (i) expand the Premises by adding thereto
approximately 2,210 rentable square feet of space located on the first floor of
the Building, (ii) provide for the performance by Landlord of certain
improvements to such additional space, (iii) adjust the annual Base Rent payable
by Tenant under the Original Lease, and (iv) adjust Tenant's Percentage.
D. The Original Lease, as amended by the First Amendment, is referred to
herein as the "Lease."
E. Landlord and Tenant now desire to further amend the Lease to, among
other things, (i) further expand the Premises by adding thereto l2,304 rentable
square feet of space located on the second floor of the Building, shown outlined
and hatched in black on the floor plan attached hereto as Exhibit A (the
"Additional Space"), (ii) further adjust the Base Rent and additional rent
payable by Tenant under the Lease, and (iii) otherwise modify and amend the
Lease, all as set forth in this Amendment.
F. Tenant currently has the right to use and occupy the Additional Space
pursuant to (i) that certain Agreement of Sublease (the "Sublease"), dated of
even date herewith, between Manugistics, Inc., as sublessor, and Tenant, as
sublessee, which pertains to a portion of the Additional Space consisting of
2,812 rentable square feet of space (the "Manugistics Space"),
<PAGE> 2
and (ii) that certain Agreement of Sub-Sublease (the "Sub-Sublease"), dated of
even date herewith, between Manugistics, Inc., as sub-sublessor, and Tenant, as
sub-sublessee which pertains to a portion of the Additional Space consisting of
9,492 rentable square feet of space (the "Osteopathic Medical Center Space"),
each of which expires on June 30, 2002 (but may be sooner terminated in
accordance with the terms thereof). The Manugistics Space and the Osteopathic
Medical Center Space are more particularly described in the Sublease and
Sub-Sublease, respectively.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein set forth and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Demise of Additional Space.
a. Landlord hereby leases, demises and lets unto Tenant the
Additional Space, and Tenant hereby takes and hires the Additional Space from
Landlord. The Additional Space shall be added to and become a part of the
Premises in two separate steps, one corresponding to the Manugistics Space and
one corresponding to the Osteopathic Medical Center Space. Such steps may occur
simultaneously or at different times.
b. The Manugistics Space shall be added to and become a part of the
Premises for the period commencing on the earlier date ("Manugistics Space
Commencement Date") to occur of (i) July 1, 2002, or (ii) the first day after
the date that the Sublease has expired or been terminated, and terminating on
February 28, 2003, being the scheduled expiration date of the term of the Lease.
Landlord and Tenant agree to execute a confirmation of the Manugistics Space
Commencement Date, substantially in the form of Exhibit B attached hereto,
within thirty (30) days after the occurrence of such date. Effective on the
Manugistics Space Commencement Date, the Manugistics Space shall be (i) added to
the Premises, and (ii) governed by all of the provisions of the Lease, as
amended hereby. Tenant hereby agrees to accept the Manugistics Space in its "as
is" condition as of the Manugistics Space Commencement Date. Tenant acknowledges
that neither Landlord, nor Landlord's agents, representatives, employees,
servants or attorneys have made or will make any representations or promises,
whether express or implied, concerning the condition of the Manugistics Space,
and agrees that Landlord shall have no obligation to make any alterations or
improvements to the Manugistics Space.
c. The Osteopathic Medical Center Space shall be added to and become
a part of the Premises for the period commencing on the earlier date
("Osteopathic Medical Center Space Commencement Date") to occur of (i) July 1,
2002, or (ii) the first day after the date that the Sublease has expired or been
terminated, and terminating on February 28, 2003, being the scheduled expiration
date of the term of the Lease. Landlord and Tenant agree to execute a
confirmation of the Osteopathic Medical Center Space Commencement Date,
substantially in the form of Exhibit B attached hereto, within thirty (30) days
after the occurrence of such date. Effective on the Osteopathic Medical Center
Space Commencement Date, the Osteopathic
2
<PAGE> 3
Medical Center Space shall be (i) added to the Premises, and (ii) governed by
all of the provisions of the Lease, as amended hereby. Tenant hereby agrees to
accept the Osteopathic Medical Center Space in its "as is" condition as of the
Osteopathic Medical Center Space Commencement Date. Tenant acknowledges that
neither Landlord, nor Landlord's agents, representatives, employees, servants or
attorneys have made or will make any representations or promises, whether
express or implied, concerning the condition of the Osteopathic Medical Center
Space, and agrees that Landlord shall have no obligation to make any alterations
or improvements to the Osteopathic Medical Center Space.
2. Adjustment of Annual Base Rent and Additional Rent.
a. The adjustments applicable to the Manugistics Space shall be as
follows:
i. Effective on the Manugistics Space Commencement Date and
continuing through the expiration date of the term of the Lease, Tenant shall
pay Landlord annual Base Rent and monthly installments thereof for the
Manugistics Space as more particularly set forth in this Section 2(a). Such Base
Rent shall be in addition to the Base Rent payable by Tenant for the portion of
the Premises that does not include the Manugistics Space (or the Osteopathic
Medical Center Space). If the Manugistics Space Commencement Date occurs before
June 30, 2000, then the Base Rent for the Manugistics Space shall be:
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Manugistics Space
Commencement Date
to 06/30/00 $61,864.00 $5,155.33 $22.00
07/01/00-06/30/02 $67,488.00 $5,624.00 $24.00
07/01/02-02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
If the Manugistics Space Commencement Date occurs after June
30, 2000 and before June 30, 2002, then the Base Rent for the Manugistics Space
shall be:
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Manugistics Space
Commencement Date
to 06/30/02 $67,488.00 $5,624.00 $24.00
07/01/02-02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
If the Manugistics Space Commencement Date occurs on July 1,
2002, then the Base Rent for the Manugistics Space shall be:
3
<PAGE> 4
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Manugistics Space
Commencement Date
to 02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
ii. Effective on the Manugistics Space Commencement Date and
continuing through the expiration date of the term of the Lease, Tenant shall
pay to Landlord additional rent with respect to the Manugistics Space, including
without limitation additional rent under Article 5 of the Lease. For that the
purpose, (i) the Base Year under paragraph 5(c)(i) of the Lease shall remain the
1995 calendar year through the expiration date of the term of the Lease.
iii. Effective on the Manugistics Space Commencement Date,
Tenant's Percentage under paragraph 5(c)(iii) of the Lease shall increase by
0.770%, which is the ratio that the rentable square foot area of the Manugistics
Space bears to the total rentable square foot area of office space in the
Building.
b. The adjustments applicable to the Osteopathic Medical Center
Space shall be as follows:
i. Effective on the Osteopathic Medical Center Space
Commencement Date and continuing through the expiration date of the term of the
Lease, Tenant shall pay Landlord annual Base Rent and monthly installments
thereof for the Osteopathic Medical Center Space as more particularly set forth
in this Section 2(b). Such Base Rent shall be in addition to the Base Rent
payable by Tenant for the portion of the Premises that does not include the
Osteopathic Medical Center Space (or the Manugistics Space). If the Osteopathic
Medical Center Space Commencement Date occurs before June 30, 2000, then the
Base Rent for the Osteopathic Medical Center Space shall be:
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Osteopathic Medical Center Space
Commencement Date
to 06/30/00 $208,824.00 $17,402.00 $22.00
07/01/00-06/30/02 $227,808.00 $18,984.00 $24.00
07/01/02-02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
If the Osteopathic Medical Center Space Commencement Date
occurs after June 30, 2000 and before June 30, 2002, then the Base Rent for the
Osteopathic Medical Center Space shall be:
4
<PAGE> 5
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Osteopathic Medical Center Space
Commencement Date
to 06/30/02 $227,808.00 $18,984.00 $24.00
07/01/02-02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
If the Osteopathic Medical Center Space Commencement Date
occurs on July 1, 2002, then the Base Rent for the Osteopathic Medical Center
Space shall be:
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per RSF
- ------ --------- --------- ---------
<S> <C> <C> <C>
Osteopathic Medical Center Space
Commencement Date
to 02/28/03 Fair Market Rent Fair Market Rent Fair Market Rent
</TABLE>
ii. Effective on the Osteopathic Medical Center Space
Commencement Date and continuing through the expiration date of the term of the
Lease, Tenant shall pay to Landlord additional rent with respect to the
Osteopathic Medical Center Space, including without limitation additional rent
under Article 5 of the Lease. For that the purpose, (i) the Base Year under
paragraph 5(c)(i) of the Lease shall remain the 1995 calendar year through the
expiration date of the term of the Lease.
iii. Effective on the Osteopathic Medical Center Space
Commencement Date, Tenant's Percentage under paragraph 5(c)(iii) of the Lease
shall increase by 2.599%, which is the ratio that the rentable square foot area
of the Osteopathic Medical Center Space bears to the total rentable square foot
area of office space in the Building.
c. For purposes of this Amendment, the term "Fair Market Rent" shall
mean the annual base rent, per square foot (with a tenant to pay additional rent
of the same types described in Article 5 of the Lease), at which landlords are
leasing comparable office space in buildings that are comparable to the Building
and located in the Bala Cynwyd and Conshohocken markets (with appropriate
adjustments to take account of variations in location, size and tenant fit-up
costs undertaken by such landlords), but in no event less than the Base Rent
that is due and owing on the Manugistics Space Commencement Date for the space
added to the Premises pursuant to the First Amendment.
d. When both the Manugistics Space and the Osteopathic Medical
Center Space are added to the Premises, the Premises shall comprise an aggregate
of approximately 34,944 rentable square feet, and Tenant's Percentage under
paragraph 5(c)(iii) of the Lease shall be 9.567%, which is the ratio that the
rentable square foot area of the Premises (i.e. 34,944 rentable square feet, as
agreed by Landlord and Tenant) bears to the total rentable square foot
5
<PAGE> 6
area of office space in the Building (i.e. 365,256 rentable square feet, as
agreed by Landlord and Tenant).
e. Effective on the date hereof, clause (2) of paragraph 5(c) of the
Lease is hereby amended and restated as follows: "(2) Any increase in Operation
and Maintenance Costs for each Comparison Year over the Operation and
Maintenance Costs for the Base Year, excluding any non-recurring Operation and
Maintenance Costs for the Base Year."
3. Conditions to Effectiveness. Landlord and Tenant agree that,
notwithstanding any provision of this Amendment to the contrary, all rights and
obligations of each of Tenant and Landlord under Sections 1 and 2 of this
Amendment are contingent upon (a) the execution and delivery by Tenant and
Manugistics, Inc. of the Sublease and the Sub-Sublease, and (b) the execution
and delivery by Landlord, Tenant, Manugistics, Inc. and Osteopathic Medical
Center of Philadelphia of the applicable Consent and Agreement related to each.
Once the Sublease, the Sub-Sublease and the Consent and Agreement related to
each are executed and delivered, Tenant shall promptly deliver complete, fully
executed originals to Landlord, whereupon the foregoing contingency shall be
deemed to be satisfied without further act or deed by Landlord or Tenant.
4. Restatement of Insurance Provisions. Article 16 of the Lease is hereby
amended and restated in its entirety as follows:
"16. INDEMNIFICATION AND INSURANCE.
(a) Indemnity. Tenant shall defend, indemnify and hold Landlord and its
officers, directors, employees, shareholders, principals and agents harmless
from and against any and all claims, demands, losses, penalties, fines, fees,
charges, assessments, liabilities, damages, judgments, orders, decrees, actions,
administrative or other proceedings, costs and expenses (including court costs,
reasonable attorneys' fees, and expert witness fees), including consequential
damages, and any diminution in value or loss or interference with the transfer,
use or enjoyment of the Premises, Property or complex consisting of One, Two and
Three Bala Plaza ("Complex") or other property or business or affecting title
thereto, howsoever caused, which directly or indirectly relate to or result
wholly or in part from, or are alleged to relate to or arise wholly or in part
from: (i) any violation or breach of this Lease or any applicable law,
ordinance, rule or regulation by any Tenant Parties (as defined below), (ii)
damage, loss or injury to persons, property or business occurring in, about or
from the Premises, (iii) damage, loss or injury to persons, property or business
directly or indirectly arising out of any Tenant Party's use of the Premises or
Property or Complex, or out of any other act or omission of any Tenant Parties.
For purposes of this provision, "Tenant Parties" shall mean Tenant, any other
occupant of the Premises and any of their respective agents, employees,
invitees, transferees and contractors. Without limiting the generality of the
foregoing, Tenant specifically acknowledges that the undertaking herein shall
apply to claims in connection with or arising out of (A) any alterations
performed pursuant to Article 9, including without limitation the installation,
maintenance, use or removal of any telecommunication lines, (B) the
transportation, use, storage, maintenance,
6
<PAGE> 7
generation, manufacturing, handling, disposal, release, discharge, spill or leak
of any hazardous substance as such term is defined in any federal, state or
local environmental law, and (C) violations of Tenant's responsibilities
respecting the Americans with Disabilities Act as described in Article 30
(whether or not any of such matters shall have been theretofore approved by
Landlord). Notwithstanding the foregoing to the contrary, the foregoing
indemnity shall not apply to claims finally determined by a court of competent
jurisdiction to have been caused solely by the gross negligence or willful
misconduct of the party seeking to be indemnified.
(b) Required Insurance. Tenant shall maintain at its expense during the
term of this Lease with respect to the Premises and Tenant's use thereof and of
the Property:
(i) Worker's Compensation Insurance in the amounts required by
statute, and Employer Liability Insurance in at least the following amounts: (a)
Bodily Injury by Accident - $500,000 per accident, (b) Bodily Injury by Disease
- - $500,000 per employee, and (c) Aggregate Limit - $500,000 per policy year.
(ii) Property Damage Insurance for the protection of Tenant and
Landlord, as their interests may appear, covering any alterations or
improvements in excess of any work provided or paid for by Landlord under this
Lease, Tenant's personal property, business records, fixtures and equipment, and
other insurable risks in amounts not less than the full insurable replacement
cost of such property and full insurable value of such other interests of
Tenant, with coverage at least as broad as the most recent editions published by
Insurance Services Office, Inc. or any successor organization ("ISO"), of: (a)
Building and Personal Property Coverage Form (CP0010), (b) Causes of Special
Loss Form (CP1030), and (c) Sprinkler Leakage - Earthquake Extension (CP1039).
(iii) Liability insurance as follows: (I) Commercial General
Liability Insurance ("CGL") at least as broad as the most recent ISO edition of
Commercial General Liability Coverage Form (CG0001) with limits of at least the
following amounts: (a) Death or Bodily Injury - $1,000,000, (b) Property Damage
or Destruction (including loss of use thereof) - $1,000,000, (c)
Products/Completed Operations - $1,000,000, (d) Personal or Advertising injury -
$1,000,000, (e) Each Occurrence Limit - $1,000,000, and (f) General Aggregate
Limit - $2,000,000 per policy year, and (II) Umbrella Liability Insurance with a
limit of at least $15,000,000 (which may be carried in one or more policies).
Such CGL and Umbrella policies shall include endorsements: (1) for contractual
liability covering Tenant's indemnity obligations under this Lease, and (2)
adding Landlord, the management company for the Property, and other parties
designated by Landlord, as Additional Insureds, on a form at least as broad as
the most recent edition of Additional Insured - Manager or Lessor of Premises
Endorsement Form (CG2011) published by ISO.
(c) Certificates, Subrogation and Other Matters. Upon the request of
Landlord from time to time during the term of this Lease, Tenant shall provide
Landlord with certificates evidencing the coverage required hereunder. Such
certificates shall: (i) be on ACORD Form 27 or such
7
<PAGE> 8
other form approved or required by Landlord, (ii) state that such insurance
coverage may not be changed, canceled or non-renewed without at least thirty
(30) days' prior written notice to Landlord, and (iii) include, as attachments,
duplicate originals or copies of the Additional Insured endorsements to Tenant's
CGL policy required above (once the same are provided to Tenant). Tenant shall
provide renewal certificates to Landlord at least thirty (30) days prior to
expiration of such policies. Except as expressly provided to the contrary
herein, coverage hereunder shall apply to events occurring during the policy
year regardless of when a claim is made. Provided Landlord does so (or is doing
so) with respect to the majority of the tenants in the Complex, Landlord may
periodically require that Tenant reasonably increase or expand the
aforementioned coverage. Except as provided to the contrary herein, any
insurance carried by Landlord or Tenant shall be for the sole benefit of the
party carrying such insurance. If Tenant obtains insurance under "blanket
policies," Tenant shall obtain an endorsement providing that the insurance
limits required hereunder are not subject to reduction or impairment by claims
or losses at other locations. Tenant's insurance policies shall be primary to
all policies of Landlord and any other Additional Insureds (whose policies shall
be deemed excess and non-contributory). All insurance required hereunder shall
be provided by responsible insurers licensed in the Commonwealth of
Pennsylvania, and shall have a general policy holder's rating of at least A and
a financial rating of at least IX in the then current edition of Best's
Insurance Reports. The parties mutually hereby waive all rights and claims
against each other for all losses covered by their respective insurance
policies, and waive all rights of subrogation of their respective insurers. The
parties agree that their respective insurance policies are now, or shall be,
endorsed such that said waiver of subrogation shall not affect the right of the
insured to recover thereunder. Landlord disclaims any representation as to
whether the foregoing coverages will be adequate to protect Tenant, and Tenant
agrees to carry such additional coverage as may be necessary or appropriate."
5. Restatement of Waiver of Claims. Article 17 of the Lease is hereby
amended and restated in its entirety as follows:
"17. WAIVER OF CLAIMS. Except for claims arising from Landlord's
intentional or grossly negligent acts which are not covered or required to be
covered by Tenant's insurance hereunder, Tenant waives all claims against
Landlord for injury or death to persons, damage to property or to any other
interest of Tenant sustained by Tenant or any party claiming by or through
Tenant resulting from: (i) any occurrence in or upon the Premises, (ii) leaking
of roofs, bursting, stoppage or leaking of water, gas, sewer or steam pipes or
equipment, including sprinklers, (iii) wind, rain, snow, ice, flooding
(including flooding of basements and other subsurface areas), freezing, fire,
explosion, earthquake, excessive heat or cold, dampness, fire or other casualty,
(iv) the Property, Premises, or any of the Building systems and equipment being
defective, out of repair, or failing, and (v) vandalism, malicious mischief,
theft, misappropriation or other acts or omissions of any parties including
Tenant's employees, other tenants, and their respective agents, employees,
invitees and contractors (and Tenant shall give Landlord immediate notice of any
such occurrences). To the extent that Tenant is required to or does carry
insurance hereunder, Tenant agrees that Tenant's property loss risks shall be
borne by such
8
<PAGE> 9
insurance, and Tenant agrees to seek recovery only from its insurance caters in
the event of such losses; for purposes hereof, any deductible amount shall be
treated as though it were recoverable under such policies. This provision is in
addition to, and not in limitation of, other provisions of this Lease limiting
Landlord's liability."
6. Restatement of Certain Remedies. Paragraph 25(i) of the Lease is hereby
amended and restated in their entirety as follows:
"(i) CONFESSION OF JUDGMENT FOR MONETARY AMOUNTS.
(a) TENANT HEREBY EXPRESSLY AUTHORIZES THE PROTHONOTARY, CLERK OR ANY
ATTORNEY OF ANY COURT OF RECORD TO ACCEPT SERVICE OF PROCESS FOR, TO
APPEAR FOR, AND TO CONFESS JUDGMENT AGAINST TENANT AND ALL PERSONS
CLAIMING UNDER TENANT IN ANY AND ALL ACTIONS BROUGHT HEREUNDER BY LANDLORD
AGAINST TENANT TO ENFORCE PAYMENT OF ANY SUMS OWING HEREUNDER BY TENANT TO
LANDLORD (AS RENT, ACCELERATED RENT OR OTHERWISE), WITH FIVE PERCENT (5%)
ADDED THERETO AS ATTORNEY'S COLLECTION FEE, WITHOUT ANY LIABILITY ON THE
PART OF SAID ATTORNEY, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT,
AND TENANT AGREES THAT UPON THE ENTRY OF SUCH JUDGMENT FOR POSSESSION A
WRIT OF EXECUTION OR OTHER APPROPRIATE PROCESS MAY ISSUE FORTHWITH
(WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER).
IN ANY SUCH ACTION, LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH
ACTION AN AFFIDAVIT MADE BY LANDLORD OR SOMEONE ACTING FOR IT SETTING
FORTH FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, OF WHICH FACTS
SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE, AND IF A TRUE COPY OF THIS
LEASE BE FILED IN SUCH ACTION (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT
SHALL BE SUFFICIENT EVIDENCE), 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. TENANT AND ALL PERSONS CLAIMING UNDER
TENANT HEREBY RELEASE LANDLORD FROM ANY CLAIMS ARISING FROM ANY ERRORS OR
DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR JUDGMENT, IN CAUSING SUCH
WRIT OF EXECUTION OR OTHER PROCESS TO BE ISSUED OR IN ANY PROCEEDING
THEREON OR CONCERNING THE SAME, AND HEREBY AGREE THAT NO WRIT OF ERROR OR
OBJECTION SHALL BE MADE OR TAKEN THERETO.
THIS WARRANT OF ATTORNEY SHALL NOT BE EXHAUSTED BY ONE EXERCISE
THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS
OCCASION THEREFORE SHALL EXIST. SUCH POWERS
9
<PAGE> 10
MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR TERMINATION OF
THE TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE
TERM OF THIS LEASE.
(b) CONFESSION OF JUDGMENT FOR POSSESSION. TENANT HEREBY EXPRESSLY
AUTHORIZES THE PROTHONOTARY, CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD
TO ACCEPT SERVICE OF PROCESS FOR, TO APPEAR FOR, AND TO CONFESS JUDGMENT
AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT IN ANY AND ALL
ACTIONS BROUGHT HEREUNDER BY LANDLORD AGAINST TENANT TO RECOVER POSSESSION
OF THE PREMISES (IN EJECTMENT OR OTHERWISE), WITHOUT ANY LIABILITY ON THE
PART OF SAID ATTORNEY, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT,
AND TENANT AGREES THAT UPON THE ENTRY OF SUCH JUDGMENT FOR POSSESSION A
WRIT OF POSSESSION OR OTHER APPROPRIATE PROCESS MAY ISSUE FORTHWITH
(WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER).
IN ANY SUCH ACTION, LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH
ACTION AN AFFIDAVIT MADE BY LANDLORD OR SOMEONE ACTING FOR IT SETTING
FORTH FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, OF WHICH FACTS
SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE, AND IF A TRUE COPY OF THIS
LEASE BE FILED IN SUCH ACTION (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT
SHALL BE SUFFICIENT EVIDENCE), 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. TENANT AND ALL PERSONS CLAIMING UNDER
TENANT HEREBY RELEASE LANDLORD FROM ANY CLAIMS ARISING FROM ANY ERRORS OR
DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR JUDGMENT, IN CAUSING SUCH
WRIT OF POSSESSION OR OTHER PROCESS TO BE ISSUED OR IN ANY PROCEEDING
THEREON OR CONCERNING THE SAME, AND HEREBY AGREE THAT NO WRIT OF ERROR OR
OBJECTION SHALL BE MADE OR TAKEN THERETO.
THIS WARRANT OF ATTORNEY SHALL NOT BE EXHAUSTED BY ONE EXERCISE
THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS
OCCASION THEREFORE SHALL EXIST. SUCH POWERS MAY BE EXERCISED DURING AS
WELL AS AFTER THE EXPIRATION OR TERMINATION OF THE TERM AND DURING AND AT
ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM OF THIS LEASE.
(c) THIS PARAGRAPH 25(i) SETS FORTH WARRANTS OF ATTORNEY FOR AN ATTORNEY
TO CONFESS JUDGMENT AGAINST TENANT. IN GRANTING THESE WARRANTS OF ATTORNEY
TO CONFESS JUDGMENT
10
<PAGE> 11
AGAINST TENANT, TENANT, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO
CONSULT WITH) SEPARATE COUNSEL FOR TENANT AND WITH KNOWLEDGE OF THE LEGAL
EFFECT HEREOF, HEREBY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES
UNCONDITIONALLY ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PREJUDGMENT
AND PRE-EXECUTION NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE.
TENANT SPECIFICALLY ACKNOWLEDGES THAT LANDLORD HAS RELIED ON THE WARRANTS
OF ATTORNEY SET FORTH IN THIS PARAGRAPH 25(i) IN ENTERING INTO THIS LEASE
WITH TENANT AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED HEREBY IS
COMMERCIAL IN NATURE.
(d) Landlord hereby agrees that so long as Philadelphia Consolidated
Holding Corp., its parent, affiliate or subsidiary, is Tenant under this
Lease, Landlord will not exercise the remedy under this paragraph 25(i)."
7. Brokers. Tenant represents and warrants that Tenant has not dealt with
any broker, agent, finder or other person in connection with the negotiation for
or the obtaining of this Amendment, and that no broker, agent, finder or other
person brought about the transaction contemplated by this Amendment, other than
Tower Realty Management Corporation and EBI Commercial. Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims, lawsuits,
liabilities, damages and costs, including attorneys' fees, incurred by Landlord
by reason of any breach of the foregoing warranty. Landlord shall pay Tower
Realty Management Corporation and EBI Commercial their respective commissions
earned in connection with this Amendment pursuant to separate agreements.
Landlord shall indemnify, defend and hold Tenant harmless from any claim of any
other broker, agent, finder or other person with whom Landlord may have dealt in
connection with this Amendment.
8. Ratification of Lease. Except as specifically modified by this
Amendment, all of the provisions of the Lease are hereby ratified and confirmed
to be in full force and effect, and shall remain in full force and effect,
including, without limitation, all remedies reserved to Landlord, with which
remedies Tenant hereby acknowledges complete familiarity, and which remedies are
incorporated herein by reference as though set forth in their entirety.
9. Binding Effect. This Amendment shall be binding upon, and shall inure
to the benefit of Landlord and Tenant and their respective permitted successors
and assigns.
10. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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<PAGE> 12
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first above written.
BALA PLAZA, INC.
By: /s/ Joe Grubb
-----------------------------------
Name: Joe Grubb
Its: Authorized Signatory
(Corporate Seal) Attest: /s/ Tim Cahill
-------------------------------
Name: Tim Cahill
Its: Authorized Signatory
PHILADELPHIA CONSOLIDATED HOLDING
CORP.
By: /s/ Jack T. Carballo
-----------------------------------
Name: Jack T. Carballo
Title: Vice President
(Corporate Seal) Attest: /s/ Christine Kleppe
-------------------------------
Name: Christine Kleppe
Title: Administrative Assistant
/s/ Craig B Keller
Craig B Keller
Vice President
12
<PAGE> 13
EXHIBIT A
[Attach Floor Plan of Additional Space Identifying
Both Manugistics Space and Osteopathic Medical Center Space]
A-1
<PAGE> 14
EXHIBIT B
CONFIRMATION OF ADDITIONAL SPACE COMMENCEMENT DATE
THIS CONFIRMATION OF ADDITIONAL SPACE COMMENCEMENT DATE is made as of the
______ day of ____________, _____,between BALA PLAZA, INC., a Delaware
corporation ("Landlord"), and PHILADELPHIA CONSOLIDATED HOLDING CORP., a
Pennsylvania corporation ("Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant entered into a Second Amendment to Lease,
dated as of ____________________________, _______ ("Second Amendment")
(capitalized terms used but not defined herein shall have the meanings assigned
to them in the Second Amendment);
WHEREAS, the Second Amendment provides that Landlord and Tenant shall
execute a confirmation of the actual [Manugistics Space/Osteopathic Medical
Center Space] Commencement Date when such date has been determined in accordance
with the provisions of the Second Amendment;
NOW THEREFORE, the parties hereto, intending to be legally bound hereby,
agree that the [Manugistics Space/Osteopathic Medical Center Space] Commencement
Date occurred on ___________________, ____________________.
Tenant acknowledges that: (i) it is in possession of the Premises,
including the [Manugistics Space/Osteopathic Medical Center Space]; (ii) the
Lease (as amended by through and including the Second Amendment) is in full
force and effect; and (iii) Landlord is not in default under the Lease.
B-1
<PAGE> 15
IN WITNESS WHEREOF, this CONFIRMATION OF ADDITIONAL SPACE
COMMENCEMENT DATE has been executed as of the day and year first above written.
BALA PLAZA, INC.
By:
-------------------------------------
Name:
Its: Authorized Signatory
(Corporate Seal) Attest:
---------------------------------
Name:
Its: Authorized Signatory
PHILADELPHIA CONSOLIDATED HOLDING
CORP.
By:
-------------------------------------
Name:
Title:
(Corporate Seal) Attest:
---------------------------------
Name:
Title:
B-2
<PAGE> 16
EXHIBIT "A"
ONE BALA PLAZA DEMISED AREA PLAN
================================================================================
SECOND FLOOR
[GRAPHIC OMITTED]
<PAGE> 17
CONSENT OF LANDLORD AND PRIME TENANT
TO SUB-SUBLEASE AND AGREEMENT
The Prudential Insurance Company of America, a New Jersey corporation
("Prudential") entered into a certain Lease (as amended, the "Lease"), dated
April 3, 1992, with Osteopathic Medical Center of Philadelphia ("Prime Tenant")
pursuant to which Prudential leased to Prime Tenant the premises known as
approximately 31,772 square feet of rentable area (the "Prime Lease Premises")
in the building known as One Bala Plaza (the "Building") located on land in Bala
Cynwyd, Lower Merion Township, Montgomery County, Pennsylvania (the "Property")
as more particularly described in the Lease.
By Sublease Agreement dated May 19, 1994 (the "Sublease"), Prime Tenant
subleased to Manugistics, Inc. ("Manugistics") a portion of the Prime Lease
Premises consisting of approximately 9,492 square feet of rentable area on the
second (2nd) floor of the Building (the "Premises").
Bala Plaza, Inc., a Delaware corporation ("Landlord"), thereafter
succeeded to the right, title and interest of Prudential in and to the Building
and the Property, and all of Prudential's right, title and interest as the
"Landlord" under the Lease was assigned to Landlord.
Manugistics now desires to sub-sublease the Premises to Philadelphia
Consolidated Holding Corp., a Pennsylvania corporation ("PIC"), pursuant to a
certain Agreement of Sub-Sublease ("Sub-Sublease"). Manugistics and PIC have
requested Landlord's and Prime Tenant's consent to the Sub-Sublease, and,
subject to the terms and conditions set forth herein, Landlord and Prime Tenant
are willing to grant such consent. (Manugistics also desires to sublease certain
premises adjoining the Premises to PIC, which premises are more fully described
in that certain Lease, dated November 14, 1996, between Landlord, as landlord,
and Manugistics, as tenant, and Manugistics and PIC are contemporaneously
seeking Landlord's consent thereto. Such sublease shall be referred to herein as
the "Manugistics Sublease.")
Landlord and Prime Tenant each hereby consent to the execution by
Manugistics and PIC of the Sub-Sublease attached hereto as Exhibit "A", and to
use of the Premises for general and administrative office purposes, upon the
following terms, covenants, and conditions to which all parties hereto agree to
be bound:
1. Upon the execution by Manugistics and PIC of the Sub-Sublease,
Manugistics shall deliver to Landlord and Prime Tenant a true copy of it. The
parties hereto acknowledge that the Sub-Sublease is subject to and subordinate
to all provisions of the Lease and the Sublease. Except to the extent set forth
in Sections 3 and 11 below, nothing therein shall be deemed a waiver of any of
the terms of the Lease or the Sublease.
2. The entry into the Sub-Sublease shall in no way be deemed to have
waived or
<PAGE> 18
modified Prime Tenant's obligation to perform all of the terms, covenants and
conditions of the Lease required to performed by Prime Tenant, including without
limitation the obligation to pay rent thereunder. The entry into the
Sub-Sublease shall in no way be deemed to have waived or modified Manugistics's
obligation to perform all of the terms, covenants and conditions of the Sublease
required to performed by Manugistics, including without limitation the
obligation to pay rent thereunder. Nothing in the Sub-Sublease shall in any way
whatsoever expand the liability or obligations of(i) Landlord, whether to Prime
Tenant, Manugistics, PIC or any other person or entity, or (ii) Prime Tenant,
whether to Landlord, Manugistics, PIC or any other person or entity.
3. Any termination of the Lease for any cause whatever shall automatically
terminate the Sublease and the Sub-Sublease and all of Manugistics' and PIC's,
respectively, rights thereunder; provided, however, that Landlord shall provide
copies to PIC of any default notices delivered by Landlord to Prime Tenant
pertaining to the Lease and shall permit PIC, acting on behalf of Manugistics
under the Sublease (to which Manugistics hereby consents), to cure Prime
Tenant's default provided such cure is accomplished on or before the date which
is two (2) business days after the expiration of any cure period provided to
Prime Tenant under the Lease (or, in the event there is no such cure period, on
or before the date which is two (2) business days after the date of Landlord's
default notice); provided further, however, that in the event of any such
termination Landlord shall recognize the rights of PIC under that certain Second
Amendment to Lease (the "Amendment"), dated of even date herewith, between
Landlord, as landlord, and PIC, as tenant, pursuant to which the Premises will
be added to, and become a part of, certain premises leased by PIC directly from
Landlord (under that certain lease, dated as of August, 1995). In the event
Landlord, for the account of Prime Tenant, takes possession of the Premises
without terminating the Sublease and the Sub-Sublease following a default by
Prime Tenant under the Lease and requires Manugistics to pay rent due under the
Sublease directly to Landlord, (i) Landlord shall not be liable for any prepaid
rents nor any security deposits paid by Manugistics, (ii) Landlord shall not be
subject to any offsets or defenses that Manugistics might have against Prime
Tenant, (iii) Landlord shall not be liable for any concessions or allowances
that Prime Tenant has agreed to grant or give, (iv) Landlord shall not be liable
for any other defaults of Prime Tenant under the Sublease, and (v) Manugistics
shall attorn to Landlord upon Landlord's request.
Without limiting the generality of the preceding paragraph, Prime Tenant
agrees that, in the event Prime Tenant defaults under the Lease (beyond any
applicable notice and cure period) and PIC, acting on behalf of Manugistics
under the Sublease, cures such default by performing Prime Tenant's obligation
directly to Landlord, PIC may seek to recover, in a direct action against Prime
Tenant, all sums paid by PIC in effectuating such cure, together with interest
at the Default Rate (as defined in the Sub-Sublease).
Any termination of the Sublease for any cause whatever shall operate as an
assignment to Prime Tenant of the Sub-Sublease as if Prime Tenant was the
sub-sublessor thereunder. In such event, or in the event Prime Tenant takes
possession of the Premises without terminating the
2
<PAGE> 19
Sublease (following a default under the Sublease), Prime Tenant shall recognize
the rights of PIC under the Sub-Sublease as if it were a direct lease between
Prime Tenant and PIC, and shall not disturb PIC's possession of the Premises;
provided, however, that (i) Prime Tenant shall not be liable for any prepaid
rents nor any security deposits paid by PIC, (ii) Prime Tenant shall not be
subject to any offsets or defenses that PIC might have against Manugistics,
(iii) Prime Tenant shall not be liable for any concessions or allowances that
Manugistics has agreed to grant or give, (iv) Prime Tenant shall not be liable
for any other defaults of Manugistics under the Sub-Sublease, (v) and PIC shall
attorn to Prime Tenant upon Prime Tenant's request.
4. Except as set forth in Section 3 above, PIC shall have no rights
against Landlord or Prime Tenant by reason of this Consent and Agreement, and
all of PIC's rights and liabilities shall derive from the terms of the
Sub-Sublease, the Sublease or the Amendment, as applicable.
5. This Consent and Agreement shall not be deemed an expressed or implied
affirmation or representation of any factual statements or recitations contained
in the Sub-Sublease, whether relating to the Lease, the Sublease or otherwise,
it being understood that PIC is fully responsible for reviewing and
familiarizing itself with all of the terms and conditions of the Lease and the
Sublease.
6. The Sub-Sublease may not be assigned or amended, nor may the Premises
be further subleased, without the consent of Landlord and Prime Tenant. This
Consent and Agreement shall not constitute a waiver of the provisions of the
Lease regarding assignment and subletting without the prior written consent of
Landlord or the provisions of the Sublease regarding assignment and subletting
without the prior written consent of Prime Tenant, and Landlord and Prime Tenant
each reserves the right to withhold its consent to any future sublease or
assignment in accordance with such provisions.
7. Under no circumstances may Manugistics require PIC or, except as set
forth in Section 3 above, may PIC on its own, perform its obligations under the
Sub-Sublease directly to Landlord or Prime Tenant, including without limitation
paying any rent due under the Sub-Sublease directly to Landlord or Prime Tenant,
without the prior written consent of Landlord or Prime Tenant (as applicable),
which consent with respect to Landlord may be withheld in Landlord's sole and
absolute discretion, and which consent with respect to Prime Tenant may be
withheld in Prime Tenant's sole and absolute discretion. Notwithstanding the
foregoing, (i) PIC shall pay directly to Landlord any charges incurred by or
imposed upon PIC for services rendered or materials supplied to the Premises
(excluding charges for additional rent due under Article 5 of the Lease), (ii)
PIC shall be liable, jointly and severally with Manugistics and Prime Tenant,
for all charges accruing on and after the Commencement Date (as defined in the
Sub-Sublease) imposed in connection with the services described in Article 5 of
the Lease (and which Landlord may require Manugistics or PIC to pay directly to
Landlord pursuant to Section 9 below), and (iii) except as set forth in Section
3 above, the acceptance by Landlord of payment for the charges described in
clause (i) or (ii) (or any other payment) from PIC, or from anyone else liable
under the Lease, shall not be deemed a waiver by Landlord of any provisions of
the Lease or this
3
<PAGE> 20
Consent and Agreement.
8. Subject to the provisions of this Section, Prime Tenant hereby assigns
and transfers to Landlord Prime Tenant's interest in all rentals and income
arising from the Sublease. Landlord, by executing this document, agrees that
until a default shall occur in the performance of Prime Tenant's obligations
under the Lease, Prime Tenant may receive, collect and enjoy the rents accruing
under the Sublease (except to the extent Landlord is entitled to a portion
thereof under the terms of the Lease). However, if Prime Tenant defaults under
the Lease, then Landlord may, at its option, receive and collect, directly from
Manugistics, all rent owing and to be owed under the Sublease. Landlord shall
not by reason of this assignment of the rentals and income arising from the
Sublease, nor by reason of the collection of the rents from Manugistics be
deemed liable to Manugistics for any failure of Prime Tenant to perform and
comply with any obligations of Prime Tenant under the Sublease.
Subject to the provisions of this Section, Manugistics hereby assigns and
transfers to Prime Tenant Manugistics's interest in all rentals and income
arising from the Sub-Sublease. Prime Tenant, by executing this document, agrees
that until a default shall occur in the performance of Manugistics's obligations
under the Sublease, Manugistics may receive, collect and enjoy the rents
accruing under the Sub-Sublease (except to the extent Prime Tenant is entitled
to a portion thereof under the terms of the Sublease). However, if Manugistics
defaults under the Sublease, then Prime Tenant may, at its option, receive and
collect, directly from PIC, all rent owing and to be owed under the
Sub-Sublease. Prime Tenant shall not by reason of this assignment of the rentals
and income arising from the Sub-Sublease, nor by reason of the collection of the
rents from PIC be deemed liable to PIC for any failure of Manugistics to perform
and comply with any obligations of Manugistics under the Sub-Sublease.
Manugistics and PIC agree that if Prime Tenant defaults under the Lease and
Landlord exercises its rights pursuant to the preceding paragraph, then this
paragraph shall be deemed to be restated, and the assignment and agreements
remade, with "Landlord" being inserted for "Prime Tenant."
9. Prime Tenant hereby irrevocably authorizes and directs Manugistics,
upon receipt of any written notice from Landlord stating that a default exists
in the performance of Prime Tenant's obligations under the Lease to pay to
Landlord the rents due and to become due under the Sublease. (Landlord
acknowledges that it shall not deliver such statement and request if PIC cures
Prime Tenant's default within the two (2) business day period described in
Section 3 above.) Prime Tenant agrees that Manugistics shall have the right to
rely upon any such statement and request from Landlord, and that Manugistics
shall pay such rents to Landlord without any obligation or rights to inquire as
to whether such default exists and notwithstanding any notice from or claim from
Prime Tenant to the contrary, and Prime Tenant shall have no right or claim
against Manugistics for any such rents so paid by Manugistics. In the event PIC
does elect to cure a default by Prime Tenant under the Lease involving the
payment of rent, Prime Tenant agrees that the payment of rent due under the
Lease to Landlord shall discharge Manugistics' obligation to pay rent under the
Sublease to Prime Tenant as if the notice from Landlord contemplated by this
Section 9 had been given, and Manugistics agrees that the
4
<PAGE> 21
discharge of its obligations to pay rent under the Sublease shall likewise
discharge PIC's obligation to pay rent under the Sub-Sublease to Manugistics
(unless it is subsequently determined that such rent was not due to Landlord).
Manugistics hereby irrevocably authorizes and directs PIC, upon receipt of
any written notice from Prime Tenant stating that a default exists in the
performance of Manugistics's obligations under the Sublease to pay to Prime
Tenant the rents due and to become due under the Sub-Sublease. Manugistics
agrees that PIC shall have the right to rely upon any such statement and request
from Prime Tenant, and that PIC shall pay such rents to Prime Tenant without any
obligation or rights to inquire as to whether such default exists and
notwithstanding any notice from or claim from Manugistics to the contrary, and
Manugistics shall have no right or claim against PIC for any such rents so paid
by PIC. In addition, upon its receipt of such notice from Prime Tenant, PIC
shall have the right, but not the obligation, to cure any default (within the
applicable notice and cure period, if any) by Manugistics under the Sublease,
and Prime Tenant will accept such performance from PIC. Manugistics and PIC
agree that if Prime Tenant defaults under the Lease and Landlord exercises its
rights pursuant to the preceding paragraph, then this paragraph shall be deemed
to be restated, and the authorization and agreements remade, with "Landlord"
being inserted for "Prime Tenant."
10. Manugistics' obligation to indemnify and hold Prime Tenant harmless as
set forth in Section 12 of the Sublease shall include indemnification from any
damages, claims, fines, penalties, costs or expenses arising from or in
connection with the use and occupancy of the Premises, or any portion thereof,
by PIC, its agents, employees or contractors.
Prime Tenant's obligation to indemnify and hold Landlord harmless as set
forth in Section 16 of the Lease shall include indemnification from any damages,
claims, fines, penalties, costs or expenses arising from or in connection with
the use and occupancy of the Premises, or any portion thereof, by Manugistics,
PIC, and their respective agents, employees or contractors.
11. Except for any telecommunications lines or computer cabling presently
existing in the Premises, which PIC shall be obligated to remove if Landlord so
requires in accordance with the Lease, Landlord hereby agrees that as of the
date hereof there are no existing alterations to the Premises that must be
removed upon the expiration of the Sub-Sublease. With respect to any future
alterations, each of Prime Tenant and Manugistics authorizes Landlord to
approve, on behalf of each of them, respectively, any alterations to the
Premises proposed by PIC. In the event Landlord gives such approval (which shall
be governed by the applicable provisions of the Lease), then each of Prime
Tenant and Manugistics shall be deemed to have approved such alterations as
well, so long as they are typical office space alterations. Notwithstanding any
such approval, PIC shall be obligated to remove the same if Landlord so requires
in accordance with the Lease.
12. To the extent there are any conflicts between the terms of the
Sub-Sublease and this Consent and Agreement, the terms of this Consent and
Agreement shall control.
5
<PAGE> 22
13. Manugistics shall be liable for all costs and expenses incurred by
Landlord in connection with the Sub-Sublease, including without limitation the
reasonable legal fees and administrative expenses incurred in connection with
this Consent and Agreement, which costs and expenses are equal to $3,750.
14. Copies of all notices to be given by Manugistics and PIC under the
Sub-Sublease shall be provided to Landlord and Prime Tenant via United States
mail or via a nationally recognized overnight courier (such as Federal Express)
at the following address:
Landlord:
Bala Plaza, Inc.
c/o Tower Realty Management Corporation
255 Shoreline Drive, Suite 600
Redwood City, California 94065
Attention: Bala Plaza Asset Manager
With a copy to:
Tower Realty Management Corporation
One Bala Plaza
Suite 501
Bala Cynwyd, PA 19004
Attention: Property Manager
Prime Tenant:
Osteopathic Medical Center of Philadelphia
4180 City Line Avenue
Philadelphia, PA 19131
Attention: Samuel H. Steinberg, Executive Vice President
or to such other person at such other address designated by notice sent to
Manugistics and PIC. Notices delivered by overnight courier shall be deemed
given upon receipt. Mailed notices shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested. Such notice shall be
deemed to have been given three (3) business days after posting in the United
States mail.
Landlord shall provide to PIC copies of all notices given by Landlord to
Prime Tenant under the Lease at the address set forth in the Sub-Sublease or
such other address designated by notice sent to Landlord by PIC.
15. Manugistics shall indemnify and hold Landlord and Prime Tenant
harmless
6
<PAGE> 23
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or finder in connection
with the sub-sublease of the Premises.
16. Landlord, Prime Tenant, Manugistics and PIC agree that,
notwithstanding any provision of this Consent and Agreement to the contrary, all
rights and obligations of each of them hereunder, and Landlord's and Prime
Tenant's consent to the Sub-Sublease, are contingent upon (a) the execution and
delivery by Manugistics and PIC of the Manugistics Sublease, (b) the execution
and delivery by Landlord, Manugistics and PIC of the Consent and Agreement
related thereto, and (c) the execution and delivery by Landlord and PIC of the
Amendment. Six duplicate originals of each such document shall be executed by
all parties other than Landlord and delivered to Landlord (but shall not be
binding upon Landlord until executed and returned). Upon Landlord's execution of
same, Landlord shall arrange for delivery thereof and confirm in writing that
the contingency set forth in this Section 16 has been satisfied.
7
<PAGE> 24
IN WITNESS WHEREOF, Landlord, and Prime Tenant, Manugistics and PIC have
executed this Consent and Agreement as of the date first above written.
BALA PLAZA, INC.
By: /s/ Joe Grubb
-------------------------------------
Name: Joe Grubb
Its: Authorized Signatory
(Corporate Seal) Attest: /s/ Tim Cahill
---------------------------------
Name: Tim Cahill
Its: Authorized Signatory
OSTEOPATHIC MEDICAL CENTER OF
PHILIADELPHIA
By: /s/ Samuel H. Steinberg
-------------------------------------
Name: Samuel H. Steinberg
Title: Exec. V.P.
(Corporate Seal) Attest: /s/ Peter Doulis
---------------------------------
Name: Peter Doulis
Title: VP for Finance/CEO
MANUGISTICS, INC.
By: /s/ Kenneth S. Thompson
-------------------------------------
Name: Kenneth S. Thompson
Title: Executive Vice President
(Corporate Seal) Attest: /s/ Peter Q. Repetti
---------------------------------
Name: Peter Q. Repetti
Title: Sr. Vice President, CFO
PHILADELPHIA CONSOLIDATED HOLDINGS
CORP.
By: /s/ Jack T. Carballo
-------------------------------------
Name: Jack T. Carballo
Title: Vice President
(Corporate Seal) Attest: /s/ Christine Klippe
---------------------------------
Name: Christine Klippe
Title: Administrative Assistant
/s/ Craig B Keller
Craig B Keller
Vice President
8
<PAGE> 25
EXHIBIT A
AGREEMENT OF SUB-SUBLEASE
This Agreement of Sub-Sublease ("Agreement") is made this _____ day of
June, 1998, by and between MANUGISTICS, INC., a Delaware corporation
("Manugistics"), and PHILADELPHIA INSURANCE COMPANIES, a Pennsylvania
corporation ("PIC").
BACKGROUND
A. By that certain Lease dated April 3, 1992 (the "Lease"), a copy of
which is attached hereto as Exhibit "A", between The Prudential Insurance
Company of America, a New Jersey corporation ("Prudential"), as landlord, and
Osteopathic Medical Center of Philadelphia ("Prime Tenant"), as tenant, Prime
Tenant leased from Prudential the premises known as approximately 31,772 square
feet of rentable area (the "Prime Lease Premises") in the building known as One
Bala Plaza (the "Building") located on land in Bala Cynwyd, Lower Merion
Township, Montgomery County, Pennsylvania (the "Property"), as more particularly
described in the Lease, at the rental and upon the terms and conditions set
forth in the Lease. Bala Plaza, Inc., a Delaware corporation ("Landlord"),
thereafter succeeded to the right, title and interest of Prudential in and to
the Building and the Property, and all of Prudential's right, title and interest
as the "Landlord" under the Lease was assigned to Landlord.
B. By Sublease Agreement dated May 19, 1994 (the "Sublease"), a copy of
which is attached hereto as Exhibit "B", between Prime Tenant, as sublandlord,
and Manugistics, as subtenant, Manugistics subleased from Prime Tenant a portion
of the Premises, being approximately 9,492 square feet of rentable area on the
second (2nd) floor of the Building (the "Premises").
C. Manugistics desires to sub-sublease the Premises to PIC, and PIC
desires to sub-sublease the Premises from Manugistics, upon the terms and
conditions set forth herein. The Premises is substantially shown on Exhibit "C"
attached hereto.
D. Manugistics also desires to sublease certain premises adjoining the
Premises to PIC, which premises are more fully described in that certain Lease,
dated November 14, 1996, between Landlord, as landlord, and Manugistics, as
tenant, and Manugistics and PIC are contemporaneously seeking Landlord's consent
thereto. Such sublease shall be referred to herein as the "Manugistics
Sublease."
E. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings established in the Lease and/or the
Sublease.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto, intending to be legally bound hereby, do covenant and agree as
follows:
A-1
<PAGE> 26
1. Premises. Manugistics hereby sub-subleases to PIC, and PIC hereby
subsubleases from Manugistics, the Premises for the period commencing July 1,
1998 ("Commencement Date") and ending on June 30, 2002 ("Expiration Date") upon
the terms and conditions set forth herein, and at all times subject to the Lease
and the Sublease. The "Rent Commencement Date" shall be August 1, 1998. PIC, for
the benefit of Landlord, Prime Tenant and Manugistics, hereby agrees that the
Lease (other than Sections 45 through 50) and Sublease (other than Sections 2,
7, 16, 17 and 19) is incorporated herein by reference, and PIC agrees further to
be bound by all of the terms, covenants and conditions on the part of "Tenant"
to be done, performed and observed under the Lease and on the part of
"Sublessee" to be done, performed and observed under the Sublease, with respect
to the Premises, provided, however, that (i) nothing herein shall bind PIC to
the obligations of Prime Tenant or Manugistics under the Lease or Sublease,
respectively, with respect to the amount of rent or additional rent (which
amounts shall be as set forth in Section 2 and 3 hereof and shall be paid by PIC
to Manugistics) and (ii) if Landlord approves PIC's proposed alterations to the
Premises, then Prime Tenant and Manugistics shall be deemed to have approved
such alterations, so long as they are typical office space alterations (but PIC
shall be obligated to remove the same if Landlord so requires in accordance with
the Lease).
This Agreement is contingent upon obtaining the prior written consent of
Landlord. If such consents are not obtained on or before July 15, 1998, this
Agreement shall be null and void.
Manugistics shall deliver possession of the Premises to PIC, and PIC shall
accept possession of the Premises in its "as is" condition as of the
Commencement Date, without requiring any alterations, improvements or
decorations to be made by Manugistics or at Manugistics' expense. The leasing of
the Premises hereunder shall include all workstations without chairs, nine (9)
desks without chairs, and the large conference table with chairs, all as
existing in the Premises and in their "as is" condition as of the date of this
Agreement.
2. Rent. Commencing on the Rent Commencement Date, PIC shall pay
Manugistics base rent ("Base Rent") as follows:
<TABLE>
<CAPTION>
ANNUAL BASE RENT
MONTHLY BASE PER RENTABLE SQUARE
PERIOD RENT FOOT
- ------ ---- ----
<S> <C> <C>
August 1, 1998 to and $14,633.50 $18.50
including June 30, 1999
July 1, 1999 to and including $15,029.00 $19.00
June 30, 2000
July 1, 2000 to and including $15,424.50 $19.50
June 30, 2001
</TABLE>
A-2
<PAGE> 27
<TABLE>
<S> <C> <C>
July 1, 2001 to and including $15,820.00 $20.00
June 30, 2002
</TABLE>
Monthly Base Rent shall be payable in advance, on the first day of each
month during said term, to Manugistics, at 2115 East Jefferson Street,
Rockville, Maryland 20852, Attention: _______________ ; or such other place as
Manugistics may designate, without any set off, counterclaim or deduction
whatsoever, except that PIC shall pay the first monthly installment within three
(3) business days after Landlord's approval of this Sub-Sublease.
If the obligation of PIC to pay rent hereunder begins on a day other than
on the first day of a calendar month, rent from such date until the first day of
the following calendar month shall be prorated at the rate of one-thirtieth
(1/30th) of the monthly installment for each day payable in advance.
3. Additional Rent. Commencing on the Rent Commencement Date, PIC shall
pay to Manugistics, as additional rent hereunder, one hundred percent (100%) of
all additional rent obligations of Manugistics pursuant to Section 3(b) of the
Sublease in accordance with the terms thereof (and Manugistics shall forthwith
pay the same to Prime Tenant); provided, however, that the Base Year for
determining such additional rent shall be calendar year 1998. In addition, PIC
shall pay to Manugistics, as additional rent, all costs for electricity (as
reasonably determined by Manugistics) used in connection with any additional
supplemental air-conditioning units within the Premises not contemplated by
Section 3(b)(ii) of the Sublease.
Upon notice from PIC, Manugistics shall deliver notices to Prime Tenant
asserting Manugistics' audit and review rights pursuant to Section 3(b) of the
Sublease, for the benefit of PIC.
4. Overdue Interest. If PIC fails to pay any installment of rent or
additional rent under Sections 2 and 3 of this Agreement, respectively, and such
failure continues for a period of five (5) days after it is due and payable, PIC
shall pay Manugistics interest at the rate of eighteen percent (18%) per annum
or, if same is usurious, the highest legal rate (as applicable, the "Default
Rate").
5. Use. PIC shall use and occupy the Premises as general and
administrative offices and for no other purposes. PIC shall comply with all
applicable laws (as more particularly set forth in Section 30 of the Lease. PIC,
at its expense, shall maintain and repair the Premises and the fixtures and
equipment therein or appurtenant thereto in first class condition and repair,
will suffer no waste or injury thereto, and at the expiration or other
termination of this Agreement, PIC shall surrender the Premises broom clean and
in the same order and condition as on the Commencement Date, excepting (i)
ordinary wear and tear, (ii) casualty not required to be insured by PIC, (iii)
condemnation, and (iv) alterations which PIC is not required by Landlord to
remove.
A-3
<PAGE> 28
6. Assignment and Sublease. PIC agrees not to assign, mortgage, pledge or
otherwise encumber this Agreement, nor to sublet the Premises or any part
thereof, without in each instance obtaining the prior written consent of
Landlord, Prime Tenant and Manugistics. Notwithstanding the foregoing, without
the consent of Landlord, Prime Tenant or Manugistics but upon notice to each,
PIC may assign this Agreement to its parent, affiliate or subsidiary, or to a
corporation which is a successor to PIC by merger or consolidation or by
acquisition of all or substantially all of the assets or stock of PIC, provided
that (i) the assignment also covers all of PIC's rights, titles and interests
in, to and under each of (A) the Manugistics Sublease and (B) that certain lease
(the "PIC Lease"), dated as of August, 1995, between Landlord, as landlord, and
PIC, as tenant, pursuant to which certain premises are leased by PIC directly
from Landlord (and the sublease and consent referenced in Article 49 thereof),
(ii) the assignee assumes, in full, the obligations of PIC under the Manugistics
Sublease and the PIC Lease (and the sublease and consent referenced in Article
49 thereof), and (iii) such assignment shall be under and subject to the terms
of this Agreement, the Manugistics Sublease and the PIC Lease (and the sublease
and consent referenced in Article 49 thereof), as applicable, and shall not
relieve PIC of any of its obligations under this Agreement, the Manugistics
Sublease and the PIC Lease (and the sublease and consent referenced in Article
49 thereof).
7. Services. Notwithstanding anything in this Agreement to the contrary,
PIC agrees that neither Manugistics nor Prime Tenant shall be obligated to
furnish for PIC any services of any nature whatsoever, including, without
limitation, the furnishing of heat, electrical energy, air conditioning,
elevator service, cleaning, window washing, or rubbish removal services. PIC,
however, shall be entitled to enjoy such services to the extent they are
provided by Landlord pursuant to the terms of the Lease.
A-4
<PAGE> 29
8. Insurance.
a. PIC shall maintain at its expense during the term of this
Sub-Sublease with respect to the Premises and PIC's use thereof and of the
Property:
(1) Worker's Compensation Insurance in the amounts required by
statute, and Employer Liability Insurance in at least the following amounts: (a)
Bodily Injury by Accident - $500,000 per accident, (b) Bodily Injury by Disease
- - $500,000 per employee, and (c) Aggregate Limit - $500,000 per policy year.
(2) Property Damage Insurance for the protection of PIC and
Manugistics, as their interests may appear, covering any alterations or
improvements in excess of those contemplated by Section 2(b) above, PIC's
personal property, business records, fixtures and equipment, and other insurable
risks in amounts not less than the full insurable replacement cost of such
property and full insurable value of such other interests of PIC, with coverage
at least as broad as the most recent editions published by Insurance Services
Office, Inc. or any successor organization ("ISO"), of: (a) Building and
Personal Property Coverage Form (CP0010), (b) Causes of Special Loss Form
(CP1030), and (c) Sprinkler Leakage - Earthquake Extension (CP1039).
(3) Liability insurance as follows: (I) Commercial General
Liability Insurance ("CGL") at least as broad as the most recent ISO edition of
Commercial General Liability Coverage Form (CG0001) with limits of at least the
following amounts: (a) Death or Bodily Injury - $1,000,000, (b) Property Damage
or Destruction (including loss of use thereof) - $l,000,000 (c)
Products/Completed Operations - $1,000,000, (d) Personal or Advertising injury -
$1,000,000, (e) Each Occurrence Limit - $1,000,000, and (f) General Aggregate
Limit - $2,000,000 per policy year, and (II) Umbrella Liability Insurance with a
limit of at least $15,000,000 (which may be carried in one or more policies).
Such CGL and Umbrella policies shall include endorsements: (1) for contractual
liability covering PIC's indemnity obligations under this Sub-Sublease, and (2)
adding Manugistics, Prime Tenant, Landlord, the management company for the
Property, and any other parties reasonably designated by Manugistics, as
Additional Insureds, on a form at least as broad as the most recent edition of
Additional Insured-Manager or Lessor of Premises Endorsement Form (CG2011)
published by ISO.
b. Upon the request of Manugistics from time to time during the term
of this Sub-Sublease, PIC shall provide Manugistics with certificates evidencing
the coverage required hereunder. Such certificates shall: (i) be on ACORD Form
27 or such other form approved or required by Manugistics, (ii) state that such
insurance coverage may not be changed, canceled or non-renewed without at least
thirty (30) days' prior written notice to Manugistics, and (iii) include, as
attachments, duplicate originals or copies of the Additional Insured
endorsements to PIC's CGL policy required above (once the same are provided to
Tenant). PIC shall provide renewal certificates to Manugistics at least thirty
(30) days prior to expiration of such policies. Except as expressly provided to
the contrary herein, coverage hereunder shall apply to events
A-5
<PAGE> 30
occurring during the policy year regardless of when a claim is made. Manugistics
may periodically require that PIC reasonably increase or expand the
aforementioned coverage. Except as provided to the contrary herein, any
insurance carried by Manugistics or PIC shall be for the sole benefit of the
party carrying such insurance. If PIC obtains insurance under "blanket
policies," PIC shall obtain an endorsement providing that the insurance limits
required hereunder are not subject to reduction or impairment by claims or
losses at other locations. PIC's insurance policies shall be primary to all
policies of Manugistics and any other Additional Insureds (whose policies shall
be deemed excess and non-contributory). All insurance required hereunder shall
be provided by responsible insurers licensed in the Commonwealth of
Pennsylvania, and shall have a general policy holder's rating of at least A and
a financial rating of at least IX in the then current edition of Best's
Insurance Reports. The parties mutually hereby waive all rights and claims
against each other for all losses covered by their respective insurance
policies, and waive all rights of subrogation of their respective insurers. The
parties agree that their respective insurance policies are now, or shall be,
endorsed such that said waiver of subrogation shall not affect the right of the
insured to recover thereunder. Manugistics disclaims any representation as to
whether the foregoing coverages will be adequate to protect PIC, and PIC agrees
to carry such additional coverage as may be necessary or appropriate.
9. Hold Harmless. Neither Manugistics nor PIC shall do or cause to be
done, or suffer or permit any act or thing to be done, which may cause the Lease
or the Sublease to be canceled, terminated, forfeited or prejudiced or which may
make the other party liable for any damages, claims, fines, penalties, costs or
expenses thereunder. Each of Manugistics and PIC shall indemnify and save
harmless the other from all suits, actions, judgments, damages, claims,
liabilities, awards, losses, fines penalties, costs, charges and expenses,
including attorneys fees, that either may sustain by reason of the other's
failure to perform the terms of this Agreement, the Lease or the Sublease or by
reason of the breach by the other of any of the terms, covenants or conditions
of this Agreement, the Lease or the Sublease except those arising out of the
negligent acts or omissions of the party being indemnified. Landlord and Prime
Tenant (so long as Prime Tenant is not in default under the Lease) are each an
intended third-party beneficiary of this Section 9.
10. Defaults. The provisions of the Sublease relating to defaults and
remedies (including without limitation the applicable notice and/or cure
periods) are incorporated herein by reference as a separate paragraph of this
Agreement and, for purposes of determining the parties defaults and remedies
hereunder, said provisions shall apply between Manugistics and PIC reading
"Sublessor" to mean Manugistics and "Sublessee" to mean PIC.
11. Security Deposit. Simultaneously with the execution of this Agreement
by PIC, PIC shall deposit with Manugistics the sum of Fourteen Thousand Six
Hundred Thirty-Three and 50/lOOths Dollars ($14,633.50) (the "Security Deposit")
to be held by Manugistics without interest payable to PIC. The Security Deposit
shall be security for the payment and performance by PIC of all PIC's
obligations, covenants, conditions and agreements under this Agreement. In the
event of any default by PIC hereunder, Manugistics shall have the right, but
shall not be
A-6
<PAGE> 31
obligated, to apply all or any portion of the Security Deposit to cure such
default, in which event PIC shall be obligated to promptly deposit with
Manugistics that portion of the Security Deposit used to cure such default. So
long as PIC is not in default hereunder, Manugistics shall return any unused
portion of the Security Deposit to PIC within thirty (30) days after expiration
of the term of this Agreement.
PIC shall have no right, title or interest in or with respect to any
Security Deposit, or any portion thereof, held by Landlord under the Lease.
12. Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns. This Agreement constitutes the entire
agreement between the parties hereto and may not be modified except by an
instrument in writing signed by the parties hereto.
13. Notices. Whenever it shall be necessary or desirable for either party
to this Agreement to serve any notice or demand on the other party, such notice
or demand shall be served by certified mail, return receipt requested, or by
overnight courier (such as Federal Express), next day delivery, at the addresses
set forth above or at such other address as shall be designated by the parties
in accordance with this Section. Each party shall provide to the other copies of
all notices received by each from Landlord or Prime Tenant.
14. Amendments. No amendments shall be made to this Agreement without the
prior written approval of Landlord in accordance with the terms of the Lease.
15. Brokers. PIC represents to Manugistics that, other than EBI Commercial
and Grubb & Ellis (collectively, "Brokers"), PIC has not dealt with any broker,
finder or agent in connection with the Premises or the negotiation and execution
of this Sublease. PIC shall indemnify and hold Manugistics harmless against all
costs, expenses, attorneys' fees, and other liability for commissions or other
compensation claimed by any other broker, finder or agent claiming by, through
or under PIC. Manugistics represents to PIC that, other than Brokers,
Manugistics has not dealt with any broker, finder or agent in connection with
the Premises or the negotiation and execution of this Sub-Sublease. Manugistics
shall be responsible for all commissions or other compensation owing to Brokers
pursuant to a separate agreement and shall indemnify and hold PIC harmless
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker, finder or agent
claiming by, through or under Manugistics, including without limitation Brokers.
A-7
<PAGE> 32
IN WITNESS WHEREOF, Manugistics and PIC have executed this Agreement of
Sub-Sublease as of the date first above written.
MANUGISTICS, INC., a Delaware
corporation
By:
-----------------------------------
Name:
Title:
(Corporate Seal)
Attest:
-------------------------------
Name:
Title:
PHILADELPHIA CONSOLIDATED
HOLDINGS CORP., a Pennsylvania
corporation
By:
-----------------------------------
Name:
Title:
(Corporate Seal)
Attest:
-------------------------------
Name:
Title:
A-8
<PAGE> 33
EXHIBIT "A"
[Attach Copy of Lease]
A-9
<PAGE> 34
EXHIBIT "B"
[Attach Copy of Sublease]
A-10
<PAGE> 35
EXHIBIT "C"
[Attach Plan of Premises]
A-11
<PAGE> 36
AGREEMENT OF SUB-SUBLEASE
This Agreement of Sub-Sublease ("Agreement") is made this 6th day of
July,1998, by and between MANUGISTICS, INC., a Delaware corporation
("Manugistics"), and PHILADELPHIA INSURANCE COMPANIES, a Pennsylvania
corporation ("PIC").
BACKGROUND
A. By that certain Lease dated April 3, 1992 (the "Lease"), a copy of
which is attached hereto as Exhibit "A", between The Prudential Insurance
Company of America, a New Jersey corporation ("Prudential"), as landlord, and
Osteopathic Medical Center of Philadelphia ("Prime Tenant"), as tenant, Prime
Tenant leased from Prudential the premises known as approximately 31,772 square
feet of rentable area (the "Prime Lease Premises") in the building known as One
Bala Plaza (the "Building") located on land in Bala Cynwyd, Lower Merion
Township, Montgomery County, Pennsylvania (the "Property"), as more particularly
described in the Lease, at the rental and upon the terms and conditions set
forth in the Lease. Bala Plaza, Inc., a Delaware corporation ("Landlord"),
thereafter succeeded to the right, title and interest of Prudential in and to
the Building and the Property, and all of Prudential's right, title and interest
as the "Landlord" under the Lease was assigned to Landlord.
B. By Sublease Agreement dated May 19, 1994 (the "Sublease"), a copy of
which is attached hereto as Exhibit "B", between Prime Tenant, as sublandlord,
and Manugistics, as subtenant, Manugistics subleased from Prime Tenant a portion
of the Premises, being approximately 9,492 square feet of rentable area on the
second (2nd) floor of the Building (the "Premises").
C. Manugistics desires to sub-sublease the Premises to PIC, and PIC
desires to sub-sublease the Premises from Manugistics, upon the terms and
conditions set forth herein. The Premises is substantially shown on Exhibit "C"
attached hereto.
D. Manugistics also desires to sublease certain premises adjoining the
Premises to PiC, which premises are more frilly described in that certain Lease,
dated November 14, 1996, between Landlord, as landlord, and Manugistics, as
tenant, and Manugistics and PIC are contemporaneously seeking Landlord's consent
thereto. Such sublease shall be referred to herein as the "Manugistics
Sublease."
E. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings established in the Lease and/or the
Sublease.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto, intending to be legally bound hereby, do covenant and agree as
follows:
<PAGE> 37
i. Premises. Manugistics hereby sub-subleases to PIC, and PIC
hereby sub-subleases from Manugistics, the Premises for the
period commencing July 1, 1998 ("Commencement Date") and
ending on June 30, 2002 ("Expiration Date") upon the terms and
conditions set forth herein, and at all times subject to the
Lease and the Sublease. The "Rent Commencement Date" shall be
August 1, 1998. PIC, for the benefit of Landlord, Prime Tenant
and Manugistics, hereby agrees that the Lease (other than
Sections 45 through 50) and Sublease (other than Sections 2,
7, 16, 17 and 19) is incorporated herein by reference, and PIC
agrees further to be bound by all of the terms, covenants and
conditions on the part of "Tenant" to be done, performed and
observed under the Lease and on the part of "Sublessee" to be
done, performed and observed under the Sublease, with respect
to the Premises, provided, however, that (i) nothing herein
shall bind PIC to the obligations of Prime Tenant or
Manugistics under the Lease or Sublease, respectively, with
respect to the amount or rent or additional rent (which
amounts shall be as set forth in Section 2 and 3 hereof and
shall be paid by PIC to Manugistics) and (ii) if Landlord
approves PIC's proposed alterations to the Premises, then
Prime Tenant and Manugistics shall be deemed to have approved
such alterations, so long as they are typical office space
alterations (but PIC shall be obligated to remove the same if
Landlord so requires in accordance with the Lease).
This Agreement is contingent upon obtaining the prior written consent of
Landlord. If such consents are not obtained on or before July 15, 1998, this
Agreement shall be null and void.
Manugistics shall deliver possession of the Premises to PIC, and PIC shall
accept possession of the Premises in its "as is" condition as of the
Commencement Date, without requiring any alterations, improvements or
decorations to be made by Manugistics or at Manugistics' expense. The leasing of
the Premises hereunder shall include all workstations without chairs, nine (9)
desks without chairs, and the large conference table with chairs, all as
existing in the Premises and in their "as is" condition as of the date of this
Agreement.
ii. Rent. Commencing on the Rent Commencement Date, PIC shall pay
Manugistics base rent ("Base Rent") as follows:
<TABLE>
<CAPTION>
ANNUAL BASE RENT
MONTHLY BASE PER RENTABLE SQUARE
PERIOD RENT FOOT
- ------ ---- ----
<S> <C> <C>
August 1, 1998 to and $14,633.50 $18.50
Including June 30, 1999
July 1, 1999 to and including $15,029.00 $19.00
June 30, 2000
</TABLE>
2
<PAGE> 38
<TABLE>
<S> <C> <C>
July 1, 2000 to and including $15,424.50 $19.50
June 30, 2001
July 1, 2001 to and including $15,820.00 $20.00
June 30, 2002
</TABLE>
Monthly Base Rent shall be payable in advance, on the first day of each
month during said term, to Manugistics, at 2115 East Jefferson Street,
Rockville, Maryland 20852, Attention: Real Estate/Lease Administrator or such
other place as Manugistics may designate, without any set off, counterclaim or
deduction whatsoever, except that PIC shall pay the first monthly installment
within three (3) business days after Landlord's approval of this Sub-Sublease.
If the obligation of PIC to pay rent hereunder begins on a day other than
on the first day of a calendar month, rent from such date until the first day of
the following calendar month shall be prorated at the rate of one-thirtieth
(1/30th) of the monthly installment for each day payable in advance.
iii. Additional Rent. Commencing on the Rent Commencement Date,
PIC shall pay to Manugistics, as additional rent hereunder,
one hundred percent (100%) of all additional rent obligations
of Manugistics pursuant to Section 3(b) of the Sublease in
accordance with the terms thereof (and Manugistics shall
forthwith pay the same to Prime Tenant); provided, however,
that the Base Year for determining such additional rent shall
be calendar year 1998. In addition, PIC shall pay to
Manugistics, as additional rent, all costs for electricity
(as reasonably determined by Manugistics) used in connection
with any additional supplemental air-conditioning units
within the Premises not contemplated by Section 3(b)(ii) of
the Sublease.
Upon notice from PIC, Manugistics shall deliver notices to Prime Tenant
asserting Manugistics' audit and review rights pursuant to Section 3(b) of the
Sublease, for the benefit of PIC.
iv. Overdue Interest. If PIC fails to pay any installment of rent
or additional rent under Sections 2 and 3 of this Agreement,
respectively, and such failure continues for a period of five
(5) days after it is due and payable, PIC shall pay
Manugistics interest at the rate of eighteen percent (18%)
per annum or, if same is usurious, the highest legal rate (as
applicable, the "Default Rate").
v. Use. PIC shall use and occupy the Premises as general and
administrative offices and for no other purposes. PIC shall
comply with
3
<PAGE> 39
all applicable laws (as more particularly set forth in
Section 30 of the Lease. PIC, at its expense, shall maintain
and repair the Premises and the fixtures and equipment
therein or appurtenant thereto in first class condition and
repair, will suffer no waste or injury thereto, and at the
expiration or other termination of this Agreement, PIC shall
surrender the Premises broom clean and in the same order and
condition as on the Commencement Date, excepting (i) ordinary
wear and tear, (ii) casualty not required to be insured by
PIC, (iii) condemnation, and (iv) alterations which PIC is
not required by Landlord to remove.
vi. Assignment and Sublease. PIC agrees not to assign, mortgage,
pledge or otherwise encumber this Agreement, nor to sublet
the Premises or any part thereof, without in each instance
obtaining the prior written consent of Landlord, Prime Tenant
and Manugistics. Notwithstanding the foregoing, without the
consent of Landlord, Prime Tenant or Manugistics but upon
notice to each, PIC may assign this Agreement to its parent,
affiliate or subsidiary, or to a corporation which is a
successor to PIC by merger or consolidation or by acquisition
of all or substantially all of the assets or stock of PIC,
provided that (i) the assignment also covers all of PIC's
rights, titles and interests in, to and under each of (A) the
Manugistics Sublease and (B) that certain lease (the "PIC
Lease"), dated as of August, 1995, between Landlord, as
landlord, and PIC, as tenant, pursuant to which certain
premises are leased by PIC directly from Landlord (and the
sublease and consent referenced in Article 49 thereof), (ii)
the assignee assumes, in full, the obligations of PIC under
the Manugistics Sublease and the PIC Lease (and the sublease
and consent referenced in Article 49 thereof), and (iii) such
assignment shall be under and subject to the terms of this
Agreement, the Manugistics Sublease and the PIC Lease (and
the sublease and consent referenced in Article 49 thereof),
as applicable, and shall not relieve PIC of any of its
obligations under this Agreement, the Manugistics Sublease
and the PIC Lease (and the sublease and consent referenced in
Article 49 thereof).
vii. Services. Notwithstanding anything in this Agreement to the
contrary, PIC agrees that neither Manugistics nor Prime
Tenant shall be obligated to furnish for PIC any services of
any nature whatsoever, including, without limitation, the
furnishing of heat, electrical energy, air conditioning,
elevator service, cleaning, window washing, or rubbish
removal services. PIC, however, shall be entitled to enjoy
such services to the extent they are provided by Landlord
pursuant to the terms of the Lease.
4
<PAGE> 40
viii. Insurance.
(1) PIC shall maintain at its expense during the term of
this Sub-Sublease with respect to the Premises and PIC's
use thereof and of the Property:
(a) Worker's Compensation Insurance in the amounts
required by statute, and Employer Liability
Insurance in at least the following amounts: (a)
Bodily Injury by Accident - $500,000 per accident,
(b) Bodily Injury by Disease - $500,000 per
employee, and (c) Aggregate Limit - $500,000 per
policy year.
(b) Property Damage Insurance for the protection of
PIC and Manugistics, as their interests may
appear, covering any alterations or improvements
in excess of those contemplated by Section 2(b)
above, PIC's personal property, business records,
fixtures and equipment, and other insurable risks
in amounts not less than the full insurable
replacement cost of such property and full
insurable value of such other interests of PIC,
with coverage at least as broad as the most recent
editions published by Insurance Services Office,
Inc. or any successor organization ("ISO"), of:
(a) Building and Personal Property Coverage Form
(CP0010), (b) Causes of Special Loss Form
(CP1030), and (c) Sprinkler Leakage - Earthquake
Extension (CP1039).
(c) Liability insurance as follows: (I) Commercial
General Liability Insurance ("CGL") at least as
broad as the most recent ISO edition of Commercial
General Liability Coverage Form (CG0001) with
limits of at least the following amounts: (a)
Death or Bodily Injury - $1,000,000, (b) Property
Damage or Destruction (including loss of use
thereof) - $1,000,000, (c) Products/Completed
Operations - $1,000,000, (d) Personal or
Advertising injury - $1,000,000, (e) Each
Occurrence Limit - $1,000,000, and (f) General
Aggregate Limit - $2,000,000 per policy year, and
(II) Umbrella Liability Insurance with a limit of
at least $15,000,000 (which may be carried in one
or more policies). Such CGL and Umbrella policies
shall include endorsements: (1) for contractual
liability covering PIC's indemnity obligations
under this Sub-Sublease, and (2)
5
<PAGE> 41
adding Manugistics, Prime Tenant, Landlord, the
management company for the Property, and any other
parties reasonably designated by Manugistics, as
Additional Insureds, on a form at least as broad
as the most recent edition of Additional Insured
Manager or Lessor of Premises Endorsement Form
(CG2011) published by ISO.
(2) Upon the request of Manugistics from time to time during
the term of this Sub-Sublease, PIC shall provide
Manugistics with certificates evidencing the coverage
required hereunder. Such certificates shall: (i) be on
ACORD Form 27 or such other form approved or required by
Manugistics, (ii) state that such insurance coverage may
not be changed, canceled or non-renewed without at least
thirty (30) days' prior written notice to Manugistics,
and (iii) include, as attachments, duplicate originals
or copies of the Additional Insured endorsements to
PIC's CGL policy required above (once the same are
provided to Tenant). PIC shall provide renewal
certificates to Manugistics at least thirty (30) days
prior to expiration of such policies. Except as
expressly provided to the contrary herein, coverage
hereunder shall apply to events occurring during the
policy year regardless of when a claim is made.
Manugistics may periodically require that PIC reasonably
increase or expand the aforementioned coverage. Except
as provided to the contrary herein, any insurance
carried by Manugistics or PIC shall be for the sole
benefit of the party carrying such insurance. If PIC
obtains insurance under "blanket policies," PIC shall
obtain an endorsement providing that the insurance
limits required hereunder are not subject to reduction
or impairment by claims or losses at other locations.
PIC's insurance policies shall be primary to all
policies of Manugistics and any other Additional
Insureds (whose policies shall be deemed excess and
non-contributory). All insurance required hereunder
shall be provided by responsible insurers licensed in
the Commonwealth of Pennsylvania, and shall have a
general policy holder's rating of at least A and a
financial rating of at least IX in the then current
edition of Best's Insurance Reports. The parties
mutually hereby waive all rights and claims against each
other for all losses covered by their respective
insurance policies, and waive all rights of subrogation
of their respective insurers. The parties agree that
their respective insurance policies are now, or shall
be, endorsed such that said waiver of subrogation shall
not affect the right of the insured to recover
thereunder. Manugistics disclaims any representation as
to whether the foregoing coverages will be adequate to
protect PIC,
6
<PAGE> 42
and PIC agrees to carry such additional coverage as may
be necessary or appropriate.
ix. Hold Harmless. Neither Manugistics nor PIC shall do or cause
to be done, or suffer or permit any act or thing to be done,
which may cause the Lease or the Sublease to be canceled,
terminated, forfeited or prejudiced or which may make the
other party liable for any damages, claims, fines, penalties,
costs or expenses thereunder. Each of Manugistics and PIC
shall indemnify and save harmless the other from all suits,
actions, judgments, damages, claims, liabilities, awards,
losses, fines penalties, costs, charges and expenses,
including attorneys fees, that either may sustain by reason of
the other's failure to perform the terms of this Agreement,
the Lease or the Sublease or by reason of the breach by the
other of any of the terms, covenants or conditions of this
Agreement, the Lease or the Sublease except those arising out
of the negligent acts or omissions of the party being
indemnified. Landlord and Prime Tenant (so long as Prime
Tenant is not in default under the Lease) are each an intended
third-party beneficiary of this Section 9.
x. Defaults. The provisions of the Sublease relating to defaults
and remedies (including without limitation the applicable
notice and/or cure periods) are incorporated herein by
reference as a separate paragraph of this Agreement and, for
purposes of determining the parties defaults and remedies
hereunder, said provisions shall apply between Manugistics and
PIC reading "Sublessor" to mean Manugistics and "Sublessee" to
mean PIC.
xi. Security Deposit. Simultaneously with the execution of this
Agreement by PIC, PIC shall deposit with Manugistics the sum
of Fourteen Thousand Six Hundred Thirty-Three and 50/lOOths
Dollars ($14,633.50) (the "Security Deposit") to be held by
Manugistics without interest payable to PIC. The Security
Deposit shall be security for the payment and performance by
PIC of all PIC's obligations, covenants, conditions and
agreements under this Agreement. In the event of any default
by PIC hereunder, Manugistics shall have the right, but shall
not be obligated, to apply all or any portion of the Security
Deposit to cure such default, in which event PIC shall be
obligated to promptly deposit with Manugistics that portion of
the Security Deposit used to cure such default. So long as PIC
is not in default hereunder, Manugistics shall return any
unused portion of the Security Deposit to PIC within thirty
(30) days after expiration of the term of this Agreement.
7
<PAGE> 43
PIC shall have no right, title or interest in or with respect to any
Security Deposit, or any portion thereof, held by Landlord under the Lease.
xii. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and
assigns. This Agreement constitutes the entire agreement
between the parties hereto and may not be modified except by
an instrument in writing signed by the parties hereto.
xiii. Notices. Whenever it shall be necessary or desirable for
either party to this Agreement to serve any notice or demand
on the other party, such notice or demand shall be served by
certified mail, return receipt requested, or by overnight
courier (such as Federal Express), next day delivery, at the
addresses set forth above or at such other address as shall be
designated by the parties in accordance with this Section.
Each party shall provide to the other copies of all notices
received by each from Landlord or Prime Tenant.
xiv. Amendments. No amendments shall be made to this Agreement
without the prior written approval of Landlord in accordance
with the terms of the Lease.
xv. Brokers. PIC represents to Manugistics that, other than EBI
Commercial and Grubb & Ellis (collectively, "Brokers"), PIC
has not dealt with any broker, finder or agent in connection
with the Premises or the negotiation and execution of this
Sublease. PIC shall indemnify and hold Manugistics harmless
against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any
other broker, finder or agent claiming by, through or under
PIC. Manugistics represents to PIC that, other than Brokers,
Manugistics has not dealt with any broker, finder or agent in
connection with the Premises or the negotiation and execution
of this Sub-Sublease. Manugistics shall be responsible for all
commissions or other compensation owing to Brokers pursuant to
a separate agreement and shall indemnify and hold PIC harmless
against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any
broker, finder or agent claiming by, through or under
Manugistics, including without limitation Brokers.
8
<PAGE> 44
IN WITNESS WHEREOF, Manugistics and PIC have executed this Agreement of
Sub-Sublease as of the date first above written.
MANUGISTICS, INC., a Delaware
corporation
By: /s/ Kenneth S. Thompson
--------------------------------
Name: Kenneth S. Thompson
Title: Executive Vice President
(Corporate Seal)
Attest: /s/ Peter Q. Repetti
----------------------------
Name: Peter Q. Repetti
Title: Sr. Vice President, CFO
PHILADELPHIA CONSOLIDATED
HOLDINGS CORP., a Pennsylvania
corporation
By: /s/ Jack T. Carballo
--------------------------------
Name: Jack T. Carballo
Title: Vice President
(Corporate Seal)
Attest: /s/ Christine Kleppe
----------------------------
Name: Christine Kleppe
Title: Administrative Assistant
/s/ Craig P. Heller
Craig P. Heller
Vice President
9
<PAGE> 45
EXHIBIT "A"
[Attach Copy of Lease]
A-1
<PAGE> 46
EXHIBIT "B"
[Attach Copy of Sublease]
B-1
<PAGE> 47
EXHIBIT "C"
[Attach Plan of Premises]
C-1
<PAGE> 48
LEASE
BALA CYNWYD, PENNSYLVANIA
1. PARTIES This Lease, made as of this 3rd day of April, 1992, by and
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
having an office at 1700 Market Street, Suite 3200, Philadelphia, Pennsylvania
19103 (hereinafter "Landlord"), and OSTEOPATHIC MEDICAL CENTER OF PHILADELPHIA,
a Pennsylvania corporation having its principal offices at 4150 City Line
Avenue, Philadelphia, Pennsylvania 19131 (hereinafter "Tenant").
2. PREMISES For and in consideration of the rent to be paid and the
covenants and agreements to be performed by Tenant as hereinafter set forth,
Landlord does hereby lease, demise and let unto Tenant that portion of the 6th
floor, shown outlined and hatched in black on the 6th floor plan attached hereto
and containing approximately 22,280 rentable square feet and that portion of the
2nd floor, shown outlined and hatched in black on the 2nd floor plan attached
hereto and containing approximately 9,492 rentable square feet (hereinafter,
collectively, "Premises"), in Landlord's building known as One Bala Plaza and
located in Bala Cynwyd, Pennsylvania (hereinafter "Building").
3. TERM The term of this Lease shall be for ten (10) years, commencing on
July 1, 1992, and expiring at midnight on June 30, 2002, unless renewed or
sooner terminated as hereinafter provided.
4. RENT
(a) Base Rent - During the entire term of this Lease, Tenant shall pay to
Landlord, as yearly rent, the following sums (hereinafter "Base Rent"), in equal
monthly installments in advance on the first day of each calendar month, without
setoff or deduction:
<TABLE>
<CAPTION>
ANNUAL MONTHLY BASE RATE RATE
PERIOD BASE RENT BASE RENT PER SQUARE FOOT
- ------ --------- --------- ---------------
<S> <C> <C> <C>
7/1/92-6/30/98 $635,440.00 $52,953.33 $20.00
7/1/98-6/30/2000 $698,984.00 $58,248.66 $22.00
7/l/2000-6/30/2002 $762,528.00 $63,544.00 $24.00
</TABLE>
In the event the term of this Lease commences on a day other than the first day
of a calendar month or expires on a day other than the last day of a calendar
month, Tenant shall pay to Landlord a
<PAGE> 49
pro rata portion of the monthly installment of Base Rent for such partial month.
(b) Additional Rent - Whenever under the terms of this Lease any sum of
money is required to be paid by Tenant in addition to the Base Rent herein
reserved, and said additional sum is not designated as "additional rent", then
if not paid when due, said sum shall nevertheless be deemed "additional rent"
and be collectible as such with any installment of Base Rent thereafter falling
due hereunder, but nothing herein contained shall be deemed to suspend or delay
the payment of any such sum at the time the same became due and payable
hereunder, or limit any other remedy of Landlord.
(c) All payments of Base Rent and additional rent shall be paid when due,
without demand, at the office of Premisys Real Estate Services, Inc., 1 Bala
Plaza - Suite E501, Bala Cynwyd, Pennsylvania 19004, or at such other place as
Landlord may from time to time direct. All checks shall be made payable to
Premisys Real Estate Services, Inc., Agent.
(d) Security Deposit - (Intentionally Omitted)
5. OPERATION AND MAINTENANCE COSTS, REAL ESTATE TAXES AND ADDITIONAL RENT
(a) The costs and expenses of the operation, maintenance and repair of the
Building (hereinafter "Operation and Maintenance Costs") shall include, without
limitation, the cost and expense to Landlord of the following items:
(1) All wages, salaries and fees of all employees and agents engaged in
the management, operation, repair, replacement, maintenance and security
of the Building, including taxes, insurance and all other employee
benefits relating thereto;
(2) All supplies and materials used in the management, operation, repair,
replacement, maintenance and security of the Building;
(3) All utilities consumed by the Building and the servicing thereof,
including, without limitation, gas, water, sewer, electricity, power,
lighting, heating, air-conditioning and ventilation;
(4) All maintenance and service contracts for the operation, repair,
replacement, maintenance, and security of the Building, including, without
limitation, window cleaning, security system, heating, ventilating and
air-conditioning system, fire sprinkler system, elevator and landscaping;
- 2 -
<PAGE> 50
(5) All fire and extended coverage (with all risk coverage) insurance and
comprehensive general liability insurance for the Building (including all
common areas) and Landlord's personal property and fixtures used in
connection therewith;
(6) All repairs (including necessary replacements) and general maintenance
of the Building;
(7) All janitorial services for the Building;
(8) The cost of any capital improvements (i) which are made for the
primary purpose of reducing Operation and Maintenance Costs, but only to
the extent of the actual reduction in Operating Expenses in each
Comparison Year, or (ii) which may be required by governmental authority
under any governmental law or regulation that was not applicable to the
Building as of the date of this Lease, which cost shall be amortized over
the period used by Landlord for Federal Income Tax purposes, together with
interest on the unamortized balance at the rate equal to the Prime Rate
being charged by Mellon Bank East, Philadelphia, Pennsylvania or such
higher rate as may have been paid by Landlord on funds borrowed for the
purpose of constructing such capital improvements; and
(9) All other costs and expenses necessarily and reasonably incurred by
Landlord in the proper operation and maintenance of a first class office
building; provided, however, that the following shall be excluded from the
term "Operation and Maintenance Costs": (i) expenses for any capital
improvements made to the Building, except as provided in paragraph 5 (a)
(8) above; (ii) expenses for repairs or other work occasioned by fire,
windstorm or other insured casualty; (iii) expenses incurred in leasing or
procuring new tenants (e.g., for lease commissions, advertising expenses
and expenses of renovating (including improving, decorating and painting)
space for new or existing tenants); (iv) legal expenses in enforcing the
terms of any lease; (v) interest and amortization payments on any mortgage
or mortgages; (vi) Real Estate Taxes, which are covered separately under
paragraph (b) below; (vii) electricity for which Landlord receives
reimbursement from Building tenants; (viii) depreciation; (ix) cost of any
fines or penalties, including any costs in connection therewith, imposed
by any governmental authority on account of Landlord's violation of any
law or building code applicable to the ownership of the Building; (x) cost
of testing, surveying, clean up or otherwise remedying hazardous wastes or
asbestos-containing materials as required by a federal, state or local
governmental authority; (xi) items and services for which Tenant
reimburses Landlord or pays third parties or that
- 3 -
<PAGE> 51
Landlord provides selectively to one or more tenants of the Building other
than Tenant without reimbursement; (xii) non-recurring costs incurred to
remedy any defects in Original construction materials or installations;
and (xiii) cost of Landlord's home office or any other office general
overhead.
(b) All "Real Estate Taxes" which, for the purposes of this Article, shall
mean all gross real property taxes, charges and assessments which are levied,
assessed upon or imposed by any governmental authority during any calendar year
of the term hereof with respect to the land and the Building and any
improvements, fixtures and equipment and all other property of Landlord, real or
personal, located in or on the Building and used in connection with the
operation of the Building and any tax which shall be levied or assessed in
addition to or in lieu of such real or personal property taxes (including,
without limitation, any municipal income tax), and any license fees, tax
measured by or imposed upon rents, or other tax or charge upon Landlord's
business of leasing the Building, but shall not include any federal or state
income tax, or any franchise, capital stock, estate or inheritance taxes. In the
event that the tax statement from the taxing authority does not allocate
assessments with respect to the Building and assessments relating to any other
improvements located upon the land upon which the Building is situated, Landlord
shall make a reasonable determination of the proper allocation of such
assessment.
(c) (i) "Base Year" shall be defined as calendar year 1992;
(ii) "Comparison Year" shall be defined as each calendar year (or
part thereof) following the Base Year and included in the
original term of this Lease and any renewal thereof; and
(iii) "Tenant's Percentage" shall be 8.696%, which is the ratio that
the rentable square foot area of the Premises (i.e. 31,772
rentable square feet) bears to the total rentable square foot
area of office space in the Building (i.e. 365,256 rentable
square feet).
For each Comparison Year, Tenant shall pay Landlord, as additional rent,
Tenant's Percentage of:
(1) Any increase in the Real Estate Taxes for each Comparison Year over
the Real Estate Taxes for the Base Year; and
(2) Any increase in Operation and Maintenance Costs for each Comparison
Year over the Operation and Maintenance Costs for the Base Year.
- 4 -
<PAGE> 52
(d) During each Comparison Year commencing on January 1, 1993, Landlord
and Tenant agree that Tenant shall pay monthly, in advance, an amount equal to
one-twelfth of Tenant's estimated annual Operation and Maintenance Costs
additional rent due for each Comparison Year. For each Comparison Year, Landlord
shall make an estimate of Tenant's Operation and Maintenance Costs additional
rent and notify Tenant as to such estimate on or about December 15th of the
preceding year.
(e) On or about May 1 of each Comparison Year commencing with the 2nd
Comparison Year, Landlord shall submit to Tenant a statement setting forth the
actual Operation and Maintenance Costs for the Building for the preceding
Comparison Year and Tenant's Percentage thereof. Within thirty (30) days after
delivery of such statement to Tenant, an adjustment shall thereupon be made
between Landlord and Tenant to reflect any difference between Tenant's estimated
payments under paragraph (d) above and Tenant's Percentage of the actual
Operation and Maintenance Costs for the Building. In no event, however, shall
the monthly rent paid by Tenant be less than the Base Rent set forth in Section
4 (a) above.
(f) Tenant shall pay Landlord Tenant's Percentage of the increase in the
Real Estate Taxes for each Comparison Year over the Real Estate Taxes for the
Base Year, within 30 days after Landlord's billing therefor.
(g) All sums due under this Article 5 shall be appropriately apportioned
and prorated for any portion of the year during which this Lease shall be in
force. In the event that this Lease shall expire at any time other than at the
end of a calendar year, then within thirty (30) days after statements reflecting
the actual Operation and Maintenance Costs for the year in which such expiration
occurs are submitted by Landlord to Tenant, either Landlord or Tenant shall pay
to the other party the adjustment sum due. The provisions of this paragraph (g)
shall survive the expiration of this Lease.
(h) If the Building is less than 95% occupied during any portion or all of
the Base Year or any Comparison Year, then Landlord shall adjust the Operation
and Maintenance Costs for any such Year to an amount which reflects what the
Operation and Maintenance Costs would have been for such Year had the Building
been 95% occupied throughout such Year.
(i) Upon at least five (5) business days' notice to Landlord, Tenant shall
be entitled to examine Landlord's books and records within one hundred twenty
(120) days after Tenant's receipt of Landlord's statement under subparagraph (e)
above. Unless Tenant takes written exception to any item in Landlord's statement
within one hundred twenty (120) days after the
- 5 -
<PAGE> 53
furnishing of the statement, such statement shall be considered as final and
accepted by Tenant. Any amount due Landlord as shown on any such statement shall
be paid by Tenant within thirty (30) days after it is furnished to Tenant. If
Tenant shall dispute in writing any specific item or items in Landlord's
statement of Operation and Maintenance Costs, and such dispute is not resolved
between Landlord and Tenant within one hundred twenty (120) days after the date
the statement was rendered, either party may, during the thirty (30) days next
following the expiration of the one hundred twenty (120) days, refer such
disputed item or items to an independent certified public accountant mutually
acceptable to Landlord and Tenant, for a determination which shall be final,
conclusive and binding upon Landlord and Tenant. Tenant agrees to pay all costs
involved in such determination unless it is determined that Landlord's original
calculation of Operation and Maintenance Costs was in error by more than ten
(10%) percent, in which event Landlord shall pay the entire amount of the costs
involved in such determination. Pending the determination of any dispute with
respect to the statement submitted by Landlord, Tenant shall pay when due the
sums shown as due on such statement. If it shall be determined that any portion
of such sums were not properly chargeable to Tenant, then Landlord shall credit
the appropriate sum to Tenant.
6. LATE PAYMENT In the event that Tenant shall fail to pay Base Rent or
any additional rent within ten (10) days after its due date, Tenant shall pay an
automatic late charge to Landlord of $.10 for each dollar overdue. Such late
charge shall be deemed additional rent for all purposes under this Lease.
Notwithstanding the foregoing, Landlord shall give Tenant twice each Lease
year (May 1 - April 30) a notice of late payment and Tenant shall have ten (10)
days after receipt of such notice to make payment before the first and second
late charges for such Lease year are imposed.
7. USE OF PREMISES Tenant shall use and occupy the Premises for purposes
of offices, including medical (excluding any laboratory use) and doctors'
offices, and conference rooms for training and educational purposes. Landlord
represents that the foregoing uses are legal and that Landlord has obtained all
necessary governmental permits and approvals therefor. Tenant shall not use or
occupy the Premises for any other legal purpose or business, without the prior
written consent of Landlord, which shall not be unreasonably withheld or delayed
provided that the other legal purpose or business is permitted by the
Certificate of Occupancy for the Building. Tenant shall observe and comply with
the rules and regulations set forth on Exhibit B attached hereto and made a part
hereof (hereinafter "Rules and Regulations"). The Rules and Regulations shall
uniformly apply
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to Tenant and all other tenants and their respective employees, agents,
licensees, invitees, subtenants and contractors.
8. COMMON AREAS All parking areas, walkways, elevators, stairs, driveways,
alleys, public corridors, fire escapes, and other areas, facilities and
improvements which may be provided by Landlord from time to time for the general
use, in common, of Tenant and other tenants and their employees, agents,
invitees and licensees, shall at all times be subject to the exclusive control
and management of Landlord. Landlord shall have the right from time to time to
establish, modify and enforce reasonable rules and regulations with respect to
all such common areas, facilities and improvements.
9. ALTERATIONS AND TRADE FIXTURES, REMOVAL
(a) Except as expressly set forth in Article 45 of the Rider, Tenant has
examined the Premises and agrees to accept them in their present "as is"
condition, and Tenant agrees that neither Landlord nor Agent has made any
representation as to the present or future condition of the Premises. In the
event that Tenant shall desire to perform any additional work in or about the
Premises or make additional alterations or additions thereto prior to the
commencement date, then within thirty (30) days after the date of execution of
this Lease, Tenant shall deliver to Landlord detailed plans and specifications
prepared by and at the expense of Tenant. Landlord shall review such plans and
specifications and, within ten (10) days after receipt thereof from Tenant,
return same to Tenant either marked approved, marked to show the corrections
required (in which event such marked-up plans and specifications shall be deemed
approved as marked-up), or marked disapproved with the reasons therefor. If
Landlord disapproves Tenant's plans and specifications, Tenant shall have twenty
(20) days from the date of such disapproval to submit revised plans and
specifications subject to subsequent mark-ups or disapprovals and corrections in
the above manner. Upon approval by Landlord of Tenant's plans and
specifications, Tenant shall proceed with due diligence to commence the work to
be performed by Tenant and shall complete same prior to the commencement date.
(b) During the term of this Lease, Tenant shall not make any alterations
or additions to the Premises which are structural in nature or which affect the
Building systems, without the prior written consent of Landlord. All such work
consented to by Landlord, to be done or performed in or about the Premises by
Tenant, shall be performed (i) at Tenant's sole cost and expense, (ii) in
accordance with the plans and specifications prepared by and at the expense of
Tenant and approved by Landlord, and (iii) by contractors, subcontractors and
materialmen approved by Landlord. Upon completion of any such work which
requires the review of plans and specifications and continuous observance of
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construction, Tenant shall pay to Landlord's Building Manager an amount equal to
five (5%) percent of the cost of such work, to reimburse Landlord's Building
Manager for said review and observance and the coordination and final inspection
of the work. During the course of performance of said work, Tenant will carry or
cause to be carried Comprehensive General Liability insurance, with a limit of
at least $2,000,000.00, naming Landlord and Landlord's Building managing agent
as additional insureds and further providing that such insurance cannot be
cancelled without at least thirty (30) days' prior written notice to Landlord
and Landlord's agent.
The above provisions of paragraph (b) shall not apply to the initial
tenant improvement work to be performed by Landlord under Article 45 of the
Rider.
(c) Any consent by Landlord permitting Tenant to do any or cause any work
to be done in or about the Premises shall be and hereby is conditioned upon
Tenant's work being performed by workmen and mechanics working in harmony and
not interfering with labor employed by Landlord, Landlord's mechanics or their
contractors or by any other tenants or their contractors. To that end, said work
shall be done by union labor having the same union affiliations as other workmen
performing work for other tenants or Landlord and their contractors, if required
by Landlord. If at any time any of the workmen or mechanics performing any of
Tenant's work shall not be of the same union affiliation or shall be unable to
work in harmony or shall interfere with any labor employed by Landlord, other
tenants or their respective mechanics and contractors, then the permission
granted by Landlord to Tenant permitting Tenant to do or cause any work to be
done in or about the Premises, may be withdrawn by Landlord upon forty-eight
(48) hours' written notice to Tenant.
(d) All alterations, interior decorations, improvements or additions made
to the Premises by Tenant, except for movable furniture, equipment and trade
fixtures, shall immediately become Landlord's property. Tenant shall have the
right but not the obligation to remove all movable furniture, equipment and
trade fixtures installed by Tenant in the Premises, except lighting fixtures and
air-conditioning equipment, provided that Tenant repairs any damage caused to
the Premises by said removal. All of said movable furniture, equipment and trade
fixtures remaining on the Premises after said expiration date, or any sooner
termination date due to any default of Tenant, shall be deemed to be abandoned
property and shall automatically become the property of Landlord.
10. MECHANICS' LIENS Prior to Tenant performing any construction or other
work in or about the Premises for which a lien could be filed against the
Premises or the Building, Tenant shall have its contractor execute a Waiver of
Mechanics' Lien,
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satisfactory to Landlord, and provide Landlord with the original copy thereof.
Notwithstanding the foregoing, if any mechanics' or other lien shall be filed
against the Premises or the Building purporting to be for labor or materials
furnished or to be furnished at the request of Tenant, then at its expense,
Tenant shall cause such lien to be removed of record by payment, bond or
otherwise, within thirty (30) days after Tenant receives notice of the filing
thereof. If Tenant shall fail to cause such lien to be removed of record within
such 30-day period, Landlord may cause such lien to be removed of record by
payment, bond or otherwise, without investigation as to the validity thereof or
as to any offsets or defenses thereto, in which event Tenant shall reimburse
Landlord in the amount paid by Landlord, including expenses, within ten (10)
days after Landlord's billing therefor. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims, costs, damages, liabilities and
expenses (including attorney fees) which may be brought or imposed against or
incurred by Landlord by reason of any such lien or removal of record.
11. CONDITION OF PREMISES Tenant acknowledges and agrees that, except for
Landlord's work set forth in Article 45 of the Rider, there have been no
representations or warranties made by or on behalf of Landlord with respect to
the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises and the Building were in
satisfactory condition, order and repair at such time.
12. BUILDING SERVICES
(a) Landlord shall provide, within its Building standards for each item,
the following services and facilities:
(1) Heating, ventilating and air conditioning, Monday to Friday from 8:00
A.M. to 6:00 P.M. and on Saturdays from 8:00 A.M. to 1:00 P.M.
(hereinafter "Business Hours"), except on the Building holidays
(hereinafter "Holidays"). Tenant agrees to cooperate fully with Landlord
and to abide by all the rules and regulations which Landlord may
reasonably prescribe for the proper functioning and protection of the
heating, ventilating and air conditioning systems.
(2) Electricity for normal office use, including normal office equipment,
in the Premises, during Business Hours (3-1/2 watts per rentable square
foot is deemed normal office use). Tenant agrees to pay for the
installation of a separate electric meter for all electrical usage other
than normal office use. Tenant agrees to pay Landlord for all
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electricity registered on said meter at the current general service rate.
(3) Cleaning and maintenance of common areas in the Building, including
bathroom facilities.
(4) Continuous passenger elevator service during Business Hours, and
service via at least one car at all other times; freight elevator service
from 8:00 A.M. to 4:00 P.M., Monday through Friday, except Holidays.
(5) Janitorial services, including cleaning of Premises, in accordance
with Landlord's Building standard schedule, annexed hereto as Exhibit C
and made a part hereof. Landlord shall not be required to furnish cleaning
services to any kitchens, lunchrooms or non-Building standard lavatories
in the Premises.
(6) Water for lavatory and drinking purposes.
Tenant shall reimburse Landlord for all additional cleaning expenses
incurred by Landlord, including but not limited to, garbage and trash removal
expense over and above the normal cleaning provided by Landlord, due to the
presence of a lunchroom or kitchen or food and beverage dispensing machines
within the Premises. No food or beverage dispensing machines shall be installed
by Tenant in the Premises without the prior written consent of Landlord.
(b) Landlord does not warrant that the services provided for in paragraph
12 (a) above shall be free from any slowdown, interruption or stoppage due to
the order of any governmental bodies and regulatory agencies, or caused by the
maintenance, repair, replacement or improvement of any of the equipment involved
in the furnishing of any such services, or caused by changes of services,
alterations, strikes, lockouts, labor controversies, fuel shortages, accidents,
acts of God or the elements or any other cause beyond the reasonable control of
Landlord. No such slowdown, interruption or stoppage of any such services shall
ever be construed as an eviction, actual or constructive, of Tenant, nor shall
same cause any abatement of annual Base Rent or additional rent or in any manner
or for any purpose relieve Tenant from any of its obligations under this Lease.
Landlord agrees to use due reasonable diligence to resume the service upon any
such slowdown, interruption or stoppage.
Notwithstanding the foregoing, in the event Tenant is deprived of the use
and occupancy (and actually vacates) a portion or all of the Premises as a
result of such stoppage or interruption for a period of at least two (2)
business days, then from and after the next day until the service is restored,
Tenant shall be entitled to an abatement in Base Rent, pro rata.
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In the event Tenant is deprived of the use and occupancy (and actually
vacates) all of the Premises as a result of such stoppage or interruption for a
period of ninety (90) days, then at anytime thereafter, Tenant may elect to
terminate this Lease upon notice to Landlord.
13. ASSIGNMENT AND SUBLETTING
(a) Except as expressly permitted pursuant to this Article, Tenant shall
not assign or hypothecate this Lease or any interest therein or sublet the
Premises or any part thereof, without the prior written consent of Landlord
which shall not be unreasonably withheld or delayed. Any of the foregoing acts
without such consent shall be voidable and shall, at the option of Landlord, be
an event of default under this Lease. Neither this Lease nor any interest
therein shall be assignable as to the interest of Tenant by operation of law,
without the written consent of Landlord. Notwithstanding the foregoing, a
corporate Tenant may, without the consent of Landlord but upon notice to
Landlord, assign this Lease to its parent, affiliate or subsidiary, provided the
assignee assumes, in full, the obligations of Tenant under this Lease, and
provided further that such assignment shall not relieve Tenant of any of its
obligations under this Lease.
(b) If at any time or from time to time during the term of this Lease,
Tenant desires to assign this Lease or sublet all or a portion of the Premises,
Tenant shall notify Landlord of such intent. Landlord shall have the option,
exercisable by notice given to Tenant within twenty (20) days after receipt of
Tenant's notice, of reacquiring the Premises or portion thereof proposed to be
sublet or assigned and terminating the Lease with respect thereto. If Landlord
does not exercise such option, Tenant may assign this Lease or sublet such space
to any third party, subject to the following terms and conditions:
(1) Tenant shall obtain the consent of Landlord, which consent shall not
be unreasonably withheld; Landlord shall base its decision upon exclusive
uses given to other Building tenants, the financial condition of the
proposed assignee and the character of the proposed assignee or subtenant
and the proposed use of the Premises.
(2) Tenant may not sublease the Premises or any portion thereof or assign
this Lease to an existing tenant in the Building.
(3) No sublease or assignment shall be valid and no subtenant or assignee
shall take possession of the premises subleased or assigned until an
executed counterpart of such
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sublease or assignment of this Lease has been delivered to Landlord.
(4) No subtenant shall have a further right to sublet.
(5) No assignee shall have a further right to assign the Lease, except in
accordance with the provisions of this Article 13.
(6) In no event shall Tenant be entitled to have more than two (2)
subtenants simultaneously in the Premises. The occupancy of portions of
the Premises pursuant to the provisions of paragraph (f) below shall not
be considered a sublease under this subparagraph (b) (6).
(c) Tenant shall pay Landlord, as additional rent, one half (1/2) of any
sums or other economic consideration received by Tenant as a result of any
subletting or assignment (except payments received which are attributable to the
amortization of the cost of leasehold improvements made to the sublet or
assigned portion of the Premises by Tenant for the subtenant or assignee, and
other reasonable expenses incident to the subletting or assignment, including
standard leasing commissions), whether denominated rentals under the sublease or
otherwise, which exceed, in the aggregate, the total sums which Tenant is
obligated to pay Landlord under this Lease (prorated to reflect obligations
allocable to that portion of the Premises subject to such sublease or
assignment). If such subleasing or assignment has been made without the consent
of Landlord as provided herein, Landlord shall be entitled to all economic
consideration received by Tenant in accordance with the provisions of this
subparagraph 13 (c), but the receipt of such monies shall not be deemed to be a
waiver of the provisions of this Article 13 with respect to assignment and
subletting, or the acceptance of such assignee or subtenant as Tenant hereunder.
(d) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligations or alter the primary liability of Tenant
to pay the Base Rent and additional rent and to perform all other obligations to
be performed by Tenant under this Lease. The acceptance of rental by Landlord
from any other person shall not be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Tenant or any successor of Tenant in the performance of any of
the terms of this Lease, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee or successor.
(e) In the event that the Premises or any part thereof have been sublet by
Tenant and Tenant is in default under this Lease
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pursuant to the provisions of Article 24 hereof, then Landlord may collect rent
from the subtenant and apply the amount collected to the Base Rent and
additional rent herein reserved but no such collection shall be deemed a waiver
of the provisions of this Article 13 with respect to subletting or the
acceptance of such subtenant as Tenant hereunder or a release of Tenant under
the Lease.
(f) Landlord agrees that from time-to-time during the term of this Lease,
Tenant may allow doctors affiliated with Tenant to use and occupy offices in the
Premises and such occupancy shall not require Landlord's consent or otherwise be
subject to the provisions of this Article 13.
14. ACCESS TO PREMISES Landlord, its employees and agents shall have the
right to enter the Premises at all reasonable times during Business Hours and at
anytime in case of an emergency for the purpose of examining or inspecting the
Premises, showing the Premises to prospective purchasers, mortgagees and (during
the last year of the Lease term only) prospective tenants of the Building, and
making such alterations, repairs, Improvements or additions to the Premises or
to the Building as Landlord may determine to be necessary or desirable. If
representatives of Tenant shall not be present to open and permit entry into the
Premises at anytime when such entry by Landlord is necessary or permitted
hereunder, Landlord may enter by means of a master key (or forcibly in the event
of an emergency) without liability to Tenant and without such entry constituting
an eviction of Tenant or termination of this Lease. Such entry into the Premises
by Landlord shall not unreasonably interfere with Tenant's use of the Premises.
15. REPAIRS
(a) At its sole cost and expense, Landlord shall make all repairs
necessary to maintain the Building roof, plumbing, heating, ventilating, air
conditioning and electrical systems (except light fixtures), and all other
Building systems, windows, floors (except carpeting), Building foundation and
structural walls and all other structural portions of the Premises provided,
however, that Landlord shall not be obligated to make any of such repairs until
Landlord has received written notice from Tenant that such repair is needed.
Landlord shall be responsible for the maintenance and repair of all common areas
and facilities in the Building provided that Tenant shall be responsible for the
repair of any damage to the common areas and facilities caused by the negligence
of Tenant and its agents, servants and employees. In no event shall Landlord be
obligated under this paragraph to repair any damage caused by any act, omission,
accident or negligence of Tenant or its employees, agents, invites, licensees,
subtenants, or contractors.
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(b) Except for Landlord's repairs under paragraph (a) above, at its sole
cost and expense, Tenant shall make all other repairs necessary to maintain and
keep the Premises and the fixtures therein in neat and orderly condition. If
Tenant refuses or neglects to make such repairs, or fails to diligently
prosecute the same to completion, after notice from Landlord of the need
therefor, Landlord may make such repairs at the expense of Tenant and such
expense, along with a ten (10%) percent service charge, shall be collectible as
additional rent.
At Tenant's expense, Landlord shall make all repairs to the light fixtures
in the Premises, including replacement bulbs and ballasts.
(c) Landlord shall not be liable for any interference with Tenant's
business arising from the making of any repairs in the Premises under paragraph
(a) above. Landlord shall interfere as little as reasonably practicable with the
conduct of Tenant's business. There shall be no abatement of Base Rent because
of such repairs.
16. INDEMNIFICATION AND LIABILITY INSURANCE
(a) Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all costs, expenses (including reasonable counsel fees),
liabilities, losses, damages, suits, actions, fines, penalties, claims or
demands of any kind and asserted by or on behalf of any person or governmental
authority, arising out of or in any way connected with, and Landlord shall not
be liable to Tenant on account of, (i) any failure by Tenant to perform any of
the agreements, terms, covenants or conditions of this Lease required to be
performed by Tenant, (ii) any failure by Tenant to comply with any statutes,
ordinances, regulations or orders of any governmental authority, or (iii) any
accident, death or personal injury, or damage to or loss or theft of property,
which shall occur in or about the Premises occasioned wholly or in part by
reason of any act or omission of Tenant, or any of its agents, contractors,
licensees, invites, employees or subtenants.
(b) During the term of this Lease and any renewal thereof, Tenant shall
obtain and promptly pay all premiums for Comprehensive General Liability
Insurance with broad form extended coverage, including Contractual Liability,
covering claims for bodily injury (including death resulting therefrom) and loss
or damage to property occurring upon, in or about the Premises, with a minimum
combined single limit of at least $1,000,000.00. All such policies and renewals
thereof shall identify Landlord and Landlord's Building managing agent as
additional insureds. All policies of insurance shall provide (i) that no
material change or cancellation of said policies shall be made without at least
thirty (30) days' prior written notice to
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Landlord and Tenant, and (ii) that any loss shall be payable notwithstanding any
act or negligence of Tenant or Landlord which might otherwise result in the
forfeiture of said insurance. On or before the commencement date of the term of
this Lease, and thereafter not less than fifteen (15) days prior to the
expiration dates of said policy or policies, Tenant shall furnish Landlord with
renewal certificates of the policies of insurance required under this paragraph.
Tenant's insurance policies shall be issued by insurance companies authorized to
do business in the Commonwealth of Pennsylvania with a financial rating of at
least an A- as rated in the most recent edition of Best's Insurance Reports and
have been in business for the past five years. The aforesaid insurance limits
may be reasonably increased by Landlord from time to time during the term of
this Lease, but no more frequently than once during each 5-year period of the
Lease term, including any renewal thereof.
(c) Tenant and Landlord, respectively, hereby release each other from any
and all liability or responsibility to the other for all claims of anyone
claiming by, through or under it or them by way of subrogation or otherwise for
any loss or damage to property owned by Landlord and Tenant respectively in the
Premises and covered by the Pennsylvania Standard Form of Fire Insurance Policy
with extended coverage endorsement, whether or not such insurance is maintained
by the other party.
17. WAIVER OF CLAIMS Landlord and Landlord's agents, servants, and
employees shall not be liable for, and Tenant hereby releases and relieves
Landlord, its agents, servants, and employees from, all liability in connection
with any and all damage to or loss of property, or loss or interruption of
business occurring to Tenant, its agents, servants, employees, invitees,
licensees, and subtenants, in or about or arising out of the Premises, from,
without limitation, (a) any fire or other casualty, accident, occurrence or
condition in or upon the Premises or the Building; (b) any failure of the
plumbing, sprinkler, electrical, heating, ventilating and air conditioning
systems and equipment, or any other systems and equipment in the Premises and
the Building, and the elevators, stairways, railings or walkways of the
Building; (c) any steam, gas, oil, water, rain or snow that may leak into or
flow from any part of the Premises or the Building from the drains, pipes or
plumbing, sewer or other installation of same; (d) the falling of any fixture or
any wall or ceiling materials; (e) broken glass; (f) any acts or omissions of
the other tenants or occupants of the Building; (g) any acts or omissions
(excluding gross negligence) of Landlord, its agents, servants and employees;
and (h) theft, Act of God, public enemy, injunction, riot, strike, insurrection,
war, court order, or any order of any governmental authorities having
jurisdiction over the Premises.
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18. QUIET ENJOYMENT Landlord covenants and agrees with Tenant that upon
Tenant paying the Base Rent and additional rent and observing and performing all
the terms, covenants and conditions, on Tenant's part to be observed and
performed under this Lease, Tenant may peaceably and quietly enjoy the Premises
hereby demised, subject, nevertheless, to the terms and conditions of this
Lease, including but not limited to, Article 34 hereof and to the ground leases,
underlying leases and mortgages hereinafter mentioned.
19. NEGATIVE COVENANTS OF TENANT Tenant agrees that it will not do or
suffer to be done, any act, matter or thing objectionable to Landlord's fire
insurance companies whereby the fire insurance or any other insurance now in
force or hereafter placed on the Premises or any part thereof or on the Building
by Landlord shall become void or suspended, or whereby the same shall be rated
as a more hazardous risk than at the date when Tenant took possession of the
Premises. In case of a breach of this covenant, in addition to all other
remedies of Landlord hereunder, Tenant agrees to pay to Landlord, as additional
rent, any and all increases in premiums on insurance carried by Landlord on the
Premises or any part thereof or on the Building caused in any way by the
occupancy of Tenant.
20. FIRE OR OTHER CASUALTY
(a) If the Premises are damaged by fire or other casualty, the damages
shall be repaired by and at the expense of Landlord and restored to the
condition which existed immediately prior to such damage and the Base Rent and
additional rent shall be apportioned from the date of such fire or other
casualty until substantial completion of the repairs, according to the part of
the Premises which is usable by Tenant. Landlord agrees to repair such damage
within a reasonable period of time after receipt from Tenant of written notice
of such damage, subject to any delays caused by Acts of God, labor strikes or
other events beyond Landlord's control. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof. Tenant acknowledges
notice that (i) Landlord shall not obtain insurance of any kind on Tenant's
furniture or furnishings, equipment, fixtures, alterations, improvements and
additions, (ii) it is Tenant's obligation to obtain such insurance at Tenant's
sole cost and expense, and (iii) Landlord shall not be obligated to repair any
damage thereto or replace the same.
(b) If, in the reasonable opinion of Landlord, the Premises are (i)
rendered substantially untenantable by reason of such fire or other casualty, or
(ii) twenty (20%) per cent or more of the Premises is damaged by said fire or
other casualty and less than six (6) months would remain in the current Lease
term upon
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substantial completion of the repairs and restoration, Landlord shall have the
right, upon written notice to Tenant within thirty (30) days after said
occurrence, to elect not to repair and restore the Premises, and in such event,
this Lease and the tenancy hereby created shall cease as of the date of said
occurrence, the Base Rent and additional rent to be adjusted and apportioned as
of said date.
(c) If, in the reasonable opinion of Landlord, the Building shall be
substantially damaged by fire or other casualty, regardless of whether or not
the Premises were damaged by such occurrence, Landlord shall have the right,
upon written notice to Tenant within thirty (30) days after said occurrence, to
terminate this Lease, and in such event, this Lease and the tenancy hereby
created shall cease and the Base Rent and additional rent shall be adjusted and
apportioned as of the date of said termination unless terminated as of the date
of said occurrence in accordance with paragraph 20 (b) above.
21. SUBORDINATION This Lease is and shall be subject and subordinate to
all ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or the real property of which the Premises are a part, and to
all renewals, modifications, consolidations, replacements and extensions of any
such underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or lessee or by any mortgagee, but in confirmation of such
subordination, Tenant shall execute, within fifteen (15) days after request, any
certificate that Landlord may reasonably require acknowledging such
subordination.
Landlord represents that as of the date of this Lease, there are no
mortgages or ground or underlying leases affecting the land and/or Building.
As a condition of Tenant's agreement to subordinate this Lease to any
ground or underlying lease or any mortgage affecting the land and/or Building,
Landlord agrees to obtain a standard Non-Disturbance Agreement from any future
ground or underlying lessor or any future mortgagee of the land and/or Building,
in a form reasonably satisfactory to Tenant.
22. CONDEMNATION
(a) If the whole of the Premises shall be condemned or taken permanently
for any public or quasi-public use or purpose, under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then in that event, at
the option of either Landlord or Tenant exercised by notice to the other within
thirty (30) days after the date when possession is taken, the term of this Lease
shall cease and terminate as of the date when
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possession is taken pursuant to such proceeding or purchase. The Base Rent and
additional rent shall be adjusted and apportioned as of the time of such
termination and any Base Rent and additional rent paid for a period thereafter
shall be refunded. In the event a material portion only of the Premises or a
material portion of the Building, shall be so taken (even though the Premises
may not have been affected by the taking of some other portion of the Building),
Landlord may elect to terminate this Lease as of the date when possession is
taken pursuant to such proceeding or purchase or Landlord may elect to repair
and restore the portion not taken at its own expense, and thereafter the Base
Rent and additional rent shall be reduced proportionately to reflect the portion
of the Premises not taken.
(b) In the event of any total or partial taking of the Premises or the
Building, Landlord shall be entitled to receive the entire award in any such
proceeding and Tenant hereby assigns any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof and
Tenant hereby waives all rights against Landlord and the condemning authority,
except that Tenant shall have the right to claim and prove in any such
proceeding and to receive any award which may be made to Tenant, if any,
specifically for damages for loss of good will, movable trade fixtures,
equipment, moving expenses, and damages for loss of leasehold.
23. ESTOPPEL CERTIFICATE At any time and from time to time and within ten
(10) days after written request by Landlord, Tenant shall execute, acknowledge
and deliver to Landlord a statement in writing duly executed by Tenant
certifying that (i) this Lease is in full force and effect, without modification
or amendment (or, if there have been any modifications or amendments, that this
Lease is in full force and effect as modified and amended and setting forth the
dates of the modifications and amendments), (ii) the dates to which annual Base
Rent and additional rent have been paid, and (iii) to the knowledge of Tenant no
default exists under this Lease or specifying each such default; it being the
intention and agreement of Landlord and Tenant that any such statement by Tenant
may be relied upon by a prospective purchaser or a prospective mortgagee of the
Building, or by others, in any matter affecting the Premises.
24. DEFAULT The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(a) The failure of Tenant to take possession of the Premises within thirty
(30) days after the commencement date of this Lease.
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(b) The vacation or abandonment of the Premises by Tenant (except pursuant
to a sublease or assignment approved by Landlord) coupled with nonpayment of
Base Rent and/or additional rent.
(c) A failure by Tenant to pay, when due, any installment of Base Rent,
additional rent or any other sum required to be paid by Tenant under this Lease,
where such failure continues for more than ten (10) days after Tenant has
received written notice of the delinquent payment from Landlord.
(d) A failure by Tenant to observe and perform any other provision or
covenant of this Lease to be observed or performed by Tenant, where such failure
continues for thirty (30) days after Tenant receives written notice thereof from
Landlord provided, however, that if the nature of the default is such that the
same cannot reasonably be cured within such 30-day period, Tenant shall not be
deemed to be in default if Tenant shall commence the cure of the default within
such 30-day period and thereafter diligently prosecutes the same to completion.
(e) The filing of a petition by or against Tenant for adjudication as a
bankrupt or insolvent or for its reorganization or for the appointment of a
receiver or trustee of Tenant's property pursuant to any local, state or federal
bankruptcy or insolvency law; or an assignment by Tenant for the benefit of
creditors; or the taking possession of the property of Tenant by any local,
state or federal governmental officer or agency or court-appointed official for
the dissolution or liquidation of Tenant or for the operating, either temporary
or permanent, of Tenant's business, provided, however, that if any such action
is commenced against Tenant the same shall not constitute a default if Tenant
causes the same to be dismissed within sixty (60) days after the filing thereof.
25. REMEDIES Upon the occurrence of any event of default set forth in
Article 24 above:
(a) Landlord may perform for the account of Tenant the cure of any such
default of Tenant and immediately recover as additional rent any expenditures
made and the amount of any obligations incurred in connection therewith, plus
fifteen (15%) percent per annum interest from the date of any such expenditures.
(b) Landlord may accelerate all Base Rent and additional rent due for the
balance of the term of this Lease and declare the same, along with all sums past
due, to be immediately due and payable. In determining the amount of any future
additional rent payments due Landlord as a result of increases in Operation and
Maintenance Costs, Landlord may make such determination based upon the amount of
Operation and Maintenance Costs additional
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rent paid by Tenant for the entire Comparison Year immediately prior to such
default.
(c) Landlord may immediately proceed to collect or bring action for the
whole rent or such part thereof as aforesaid, as well as for liquidated damages
provided for hereinafter, as being rent in arrears, or may enter judgment
therefor in an amicable action as herein elsewhere provided for in case of rent
in arrears, or may file a Proof of Claim in any bankruptcy or insolvency
proceeding for such rent, or Landlord may institute any other proceedings,
whether similar to the foregoing or not, to enforce payment thereof.
(d) Landlord may re-enter and repossess the Premises breaking open locked
doors, if necessary, and may use as much force as necessary to effect such
entrance without being liable to any action or prosecution for such entry or the
manner thereof, and Landlord shall not be liable for the loss of any property in
the Premises. Landlord may remove all of Tenant's goods and property from the
Premises. Landlord shall have no liability for any damage to such goods and
property and Landlord shall not be responsible for the storage or protection of
the same upon removal.
(e) Landlord may re-enter and repossess the Premises or any part thereof
and attempt to relet all or any part of the Premises for and upon such terms and
to such persons, firms or corporations and for such period or periods as
Landlord, in its sole discretion, shall determine, including a term beyond the
termination of this Lease. Landlord shall consider any tenant offered by Tenant
in connection with such reletting. For the purpose of such reletting, Landlord
may decorate or make reasonable repairs, changes, alterations or additions in or
to the Premises to the extent deemed by Landlord desirable or convenient; and
the cost of such repairs, changes, alterations or additions shall be charged to
and be payable by Tenant as additional rent hereunder, as well as any reasonable
brokerage and legal fees expended by Landlord. Any sums collected by Landlord
from any new tenant obtained on account of Tenant shall be credited against the
balance of the Base Rent and additional rent due hereunder as aforesaid. Tenant
shall pay to Landlord monthly, on the days when the Base Rent and additional
rent would have been payable under this Lease, the amount due hereunder less the
net amount obtained by Landlord from such new tenant.
(f) At its option, Landlord may serve notice upon Tenant that this Lease
and the then unexpired term hereof shall cease and expire and become absolutely
void on the date specified in such notice, to be not less than ten (10) days
after the date of such notice, without any right on the part of Tenant to save
the forfeiture by payment of any sum due or by the performance of any term,
provision, covenant, agreement or condition broken; and,
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thereupon and at the expiration of the time limit in such notice, this Lease and
the term hereof granted, as well as the entire right, title and interest of
Tenant hereunder, shall wholly cease and expire and become void in the same
manner and with the same force and effect (except as to Tenant's liability) as
if the date fixed in such notice were the expiration date of the term of this
Lease. Thereupon, Tenant shall immediately quit and surrender the Premises to
Landlord and Landlord may enter into and repossess the Premises by summary
proceedings, detainer, ejectment or otherwise and remove all occupants thereof
and, at Landlord's option, any property therein, without being liable to
indictment, prosecution or damages therefor.
(g) In the event of termination of this Lease pursuant to the provisions
of paragraph 25 (f) above, Tenant shall pay to Landlord all Base Rent,
additional rent and other charges payable hereunder due and unpaid to the date
of termination, together with liquidated damages in an amount equal to
twenty-five percent (25%) of the balance of the Base Rent, additional rent and
other charges required to be paid under this Lease from the date of said
termination to the expiration date of the term of this Lease, as if the same had
not been terminated, the said Base Rent and additional rent for the balance of
the term of this Lease and other charges to be computed in the same manner as
provided in paragraph 25 (b) above. In the event any judgment has been entered
against Tenant for any amount in excess of the total amount required to be paid
by Tenant to Landlord hereunder, then the damages assessed under said judgment
shall be reassessed and a credit granted to the extent of such excess. Landlord
and Tenant acknowledge that the damages to which Landlord is entitled in the
event of a breach of this Lease and termination by Landlord are not easily
computed and are subject to many variable factors. Therefore, Landlord and
Tenant have agreed to the liquidated damages as herein provided in order to
avoid extended litigation in the event of default by Tenant and termination of
this Lease.
In the event Landlord exercises the remedy under this paragraph and Tenant
pays Landlord the entire amount of the liquidated damages, Landlord shall be
deemed to have made an election of remedies and except for regaining possession
the Premises, Landlord shall not be entitled to exercise any other remedy under
this Article 25.
(h) In the event of a breach or threatened breach by Tenant of any of the
agreements, conditions, covenants or terms of this Lease, Landlord shall have
the right to seek an injunction to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given to Landlord in
this Lease are distinct, separate and cumulative remedies, and no one of them,
whether or not exercised
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by Landlord, shall be deemed to be in exclusion of any of the others.
(i) In the event of any default, Tenant hereby empowers any prothonotary
or attorney of any court of record to appear for Tenant in any and all actions
which may be brought for Base Rent, additional rent, or other charges or
expenses agreed to be paid by Tenant under this Lease and to sign for Tenant an
agreement for entering in any competent court an amicable action or actions for
the recovery of Base Rent, additional rent, or other charges or expenses and, in
said suits or in said amicable action or actions, to confess judgment against
Tenant for all or any part of such Base Rent, additional rent, or other charges
or expenses, including, at Landlord's option, the Base Rent for the entire
unexpired balance of the term of this Lease, computed as aforesaid, and any
other charges, payments, costs and expenses reserved as rent or agreed to be
paid by Tenant, as well as liquidated damages, and for interest and costs
together with an attorney's commission of five (5%) percent thereof. Said
authority shall not be exhausted by any one exercise thereof, but judgment may
be confessed as aforesaid from time to time and as often as any of said Base
Rent, additional rent or other charges reserved as rent shall fall due or be in
arrears, and such powers may be exercised as well after the expiration of the
original term or during any extension or renewal of this Lease. It shall not be
necessary for Landlord to file the original of this Lease, but Landlord may file
a true copy thereof at the time of the entry of such judgment or judgments.
Landlord agrees not to use the remedy under this paragraph (i) so long as
Osteopathic Medical Center of Philadelphia is Tenant under this Lease.
(j) When this Lease shall be determined by condition broken, either during
the original term of this Lease or any renewal thereof, and also when and as
soon as the term hereby created or any renewal thereof shall have expired, it
shall be lawful for any attorney as attorney for the Tenant to file an agreement
for entering in any competent court an amicable action and judgment in ejection
against Tenant and all persons or entities claiming under Tenant for the
recovery by Landlord of possession of the Premises, for which this Lease shall
be sufficient warrant; whereupon, if Landlord so desires, a writ of habere
facias possessionem may issue forthwith, without any prior writ or proceeding
whatsoever, and provided that, if for any reason after such action shall have
been commenced the same shall be determined and the possession of the Premises
hereby demised shall remain in or be restored to Tenant, Landlord shall have the
right, upon any subsequent default or defaults or upon the termination or
expiration of this Lease, to bring one or more amicable action or actions to
recover possession of the Premises. In any amicable action of ejectment,
Landlord shall first cause
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to be filed in such action an affidavit made by it or someone acting for it
setting forth the facts necessary to authorize the entry of judgment, and, if a
true copy of this Lease (and of the truth of the copy such affidavit shall be
sufficient evidence) be filed in such 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.
26. REQUIREMENT OF STRICT PERFORMANCE The failure or delay on the part of
Landlord to enforce or exercise at any time any of the provisions, rights or
remedies in the Lease shall in no way be construed to be a waiver thereof, or in
any way to affect the validity of this Lease or any part thereof, or the right
of Landlord to thereafter enforce each and every such provision, right or
remedy. No waiver of any breach of this Lease shall be held to be a waiver of
any other or subsequent breach. The receipt by Landlord of Base Rent or
additional rent at a time when the Base Rent or additional rent is in default
under this Lease shall not be construed as a waiver of such default. The receipt
by Landlord of a lesser amount than the Base Rent or additional rent due shall
not be construed to be other than a payment on account of the Base Rent or
additional rent then due, and any statement on Tenant's check or any letter
accompanying Tenant's check to the contrary shall not be deemed an accord and
satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the Base Rent or additional rent due
or to pursue any other remedies provided in this Lease. No act or thing done by
Landlord or Landlord's agents or employees during the term of this Lease shall
be deemed an acceptance of a surrender of the Premises and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
27. RELOCATION OF TENANT (Intentionally Omitted)
28. SURRENDER OF PREMISES; HOLDING OVER
(a) The Lease shall terminate and Tenant shall deliver up and surrender
possession of the Premises to Landlord on the last day of the term hereof, and
Tenant hereby waives the right to any notice of termination or notice to quit.
Upon the expiration or sooner termination of this Lease, Tenant covenants to
deliver up and surrender possession of the Premises in the same condition in
which Tenant has agreed to maintain and keep the same during the term of this
Lease in accordance with the provisions of this Lease, normal wear and tear
excepted.
(b) Upon the failure of Tenant to surrender possession of the Premises to
Landlord upon the expiration or sooner termination of this Lease, Tenant shall
pay to Landlord, as liquidated damages, an amount equal to one hundred fifty
(150%) percent of the then current Base Rent and additional rent
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required to be paid by Tenant under this Lease, applied to any period in which
Tenant shall remain in possession after the expiration or sooner termination of
this Lease. Acceptance by Landlord of Base Rent or additional rent after such
expiration or earlier termination shall not constitute a consent to a holdover
hereunder or result in a renewal. The foregoing provisions of this paragraph are
in addition to and do not affect Landlord's right of reentry or any other rights
of Landlord hereunder or otherwise provided by law.
29. DELAY IN POSSESSION In the event that the Premises are not ready for
Tenant's occupancy at the commencement date of this Lease, because Landlord has
not substantially completed the tenant improvement work described in Article 45
of the Rider (unless such tenant improvement work is being done by Tenant or
Tenant's contractor, in which case there shall be no suspension or proration of
Base Rent or additional rent), or because of the failure or refusal of the
present occupant of the Premises to vacate and surrender up the same, or because
of any restrictions, limitations or delays caused by Government regulations or
Governmental agencies, this Lease and the term hereof shall not be affected
thereby, nor shall Tenant be entitled to make any claim for or receive any
damages whatsoever from Landlord, but the entire term of this Lease shall not
commence and the Base Rent, additional rent and other sums herein provided to be
paid by Tenant shall not become due until the date the Premises are
substantially completed by Landlord and ready for Tenant's occupancy or the date
possession of the Premises is delivered to Tenant, as the case may be. In
clarification of the foregoing, the expiration date of the Lease term, the
applicable dates for renewal (Article 47) and the two-year period applicable to
the rights of first offer (Article 48) shall be extended by the period of delay
of the commencement date. In the event Tenant accepts possession of the Premises
(or any part thereof) prior to July 1, 1992 for the regular conduct of its
business, such occupancy shall be under and subject to all the terms, covenants
and conditions contained in the Lease, except that Tenant shall not be required
to pay any Base Rent or additional rent during said period prior to July 1, 1992
and the term shall be extended by the number of days from the commencement date
of such occupancy to June 30, 1992.
30. COMPLIANCE WITH LAWS AND ORDINANCES At its sole cost and expense,
Tenant shall promptly fulfill and comply with all laws, ordinances, regulations
and requirements of the City, County, State and Federal Governments and any and
all departments thereof having jurisdiction over the Building, and of the
National Board of Fire Underwriters or any other similar body now or hereafter
constituted, but only to the extent that such laws, ordinances, regulations and
requirements govern the particular manner in which Tenant uses the Premises.
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<PAGE> 72
31. NOTICES All notices or demands under this Lease shall be in writing
and shall be given or served by either Landlord or Tenant to or upon the other,
either personally or by Registered or Certified Mail, Return Receipt Requested,
postage prepaid, and addressed as follows:
TO LANDLORD: The Prudential Insurance Company
of America
Newark Realty Group Office
3 Gateway Center - 13th Floor
Newark, New Jersey 07102
Attention: General Manager -
Pennsylvania Properties
WITH A COPY TO: Premisys Real Estate Services, Inc.
One Bala Plaza
Bala Cynwyd, Pennsylvania 19004
TO TENANT: Osteopathic Medical Center of
Philadelphia
One Bala Plaza
Bala Cynwyd, Pennsylvania 19004
Att: Mr. Lewis H. Abel, CPA, VP & CFO
All notices and demands shall be deemed given or served upon the date of
receipt thereof by Landlord or Tenant, as the case may be. Either Landlord or
Tenant may change its address to which notices and demands shall be delivered or
mailed by giving written notice of such change to the other as herein provided.
32. WARRANTY OF TENANT Tenant warrants to Landlord that Tenant dealt and
negotiated solely and only with Jackson-Cross Company and Landlord for this
Lease and with no other broker, firm, company or person.
For good and valuable consideration, Tenant hereby agrees to indemnify,
defend and hold Landlord harmless from and against any and all claims, suits,
proceedings, damages, obligations, liabilities, counsel fees, costs, losses,
expenses, orders and judgments imposed upon, incurred by or asserted against
Landlord by reason of the falsity or error of Tenant's warranty.
33. FORCE MAJEURE Landlord shall be excused for the period of any delay in
the performance of any of its obligations under this Lease, when prevented from
so doing by cause or causes beyond Landlord's control, which shall include,
without limitation, all labor disputes, inability to obtain any materials or
services, civil commotion, or acts of God.
34. LANDLORD'S OBLIGATIONS Landlord's obligations hereunder shall be
binding upon Landlord only for the period of
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<PAGE> 73
time that Landlord is in ownership of the Building, and upon termination of that
ownership, except as to any obligations which have then matured, including
Landlord's obligation for the performance of the tenant improvement work in the
Premises under Article 45 of the Rider, Tenant shall look solely to Landlord's
successor in interest in the Building for the satisfaction of each and every
obligation of Landlord hereunder, provided that such successor has assumed, in
writing, the obligations of Landlord under this Lease. If any security deposit
has been made by Tenant, Landlord shall transfer such security deposit to the
purchaser and thereupon Landlord shall be discharged from any further liability
with respect thereto.
35. LANDLORD'S LIABILITY Landlord shall have no personal liability under
any of the terms, conditions or covenants of this Lease and Tenant shall look
solely to the equity of Landlord in the Building for the satisfaction of any
claim, remedy or cause of action accruing to Tenant as a result of the breach of
any provision of this Lease by Landlord.
Landlord represents that as of this Lease, there are no mortgages
affecting the land and/or Building.
36. SUCCESSORS The respective rights and obligations of Landlord and
Tenant under this Lease shall bind and shall inure to the benefit of Landlord
and Tenant and their legal representatives, heirs, successors and assigns,
provided, however, that no rights shall inure to the benefit of any successor of
Tenant unless Landlord's written consent to the transfer to such successor has
first been obtained as provided in Article 13 above.
37. GOVERNING LAW This Lease shall be construed, governed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
38. SEVERABILITY If any provisions of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions of this Lease shall in
no way be affected or impaired and such remaining provisions shall continue in
full force and effect.
39. CAPTIONS Any headings preceding the text of the several Articles of
this Lease are inserted solely for convenience of reference and shall not
constitute a part of this Lease or affect its meaning, construction or effect.
40. GENDER As used in this Lease, the word "person" shall mean and
include, where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the singular for
the plural, where appropriate; and words of any gender shall mean to include any
other gender
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<PAGE> 74
41. EXECUTION This Lease shall become effective when it has been signed by
a duly authorized officer or representative of Landlord and Tenant and delivered
to the other party.
42. EXHIBITS AND RIDER Attached to this Lease and made part hereof are
Exhibits A, A-l, A-2, B and C and Rider Articles 45 to 50 inclusive.
43. ENTIRE AGREEMENT This Lease, including the Exhibits and the Rider,
contains all the agreements, conditions, understandings, representations and
warranties made between Landlord and Tenant with respect to the subject matter
hereof, and may not be modified orally or in any manner other than by an
agreement in writing signed by both Landlord and Tenant or their respective
successors in interest.
44. CORPORATE AUTHORITY If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with the duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease the
day and year first above written.
(LANDLORD)
ATTEST: THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Michael J. Hughes By: /s/ Lawrence V. Fagnoni
------------------------- ---------------------------
Michael J. Hughes Lawrence V. Fagnoni, Vice President
Assistant Secretary
ATTEST: (TENANT)
OSTEOPATHIC MEDICAL CENTER OF
PHILADELPHIA
By: /s/ [ILLEGIBLE] By: /s/ Lewis H. Abel
------------------------- ---------------------------
Lewis H. Abel, CPA
Vice President and
Chief Financial Officer
(Seal)
If Tenant is a corporation, Lease must be executed by the President or the vice
President as well as the Secretary and properly sealed.
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<PAGE> 75
Rider Annexed to and Made Part of the Lease
Dated as of April 3, 1992
Between The Prudential Insurance Company of America,
as Landlord,
and Osteopathic Medical Center of Philadelphia,
as Tenant
45. LANDLORD'S WORK AND CONTRIBUTION Supplementing the provisions of
Article 9 above, at Landlord's expense up to a maximum of $953,160.00, Landlord
agrees to construct the Premises in Landlord's Building Standard manner, in
accordance with Tenant's interior design drawings which shall be prepared by
Medifac and shall be approved by Tenant and submitted to Landlord, time being of
the essence. Landlord's contribution of up to a maximum of $953,160.00 shall
cover construction costs and fees, labor and materials, construction permits and
reasonable overhead, the design fee payable to Medifac and the construction
management fee (in the maximum amount of one and one fourth (1 1/4%) percent of
the total construction cost) payable to Premisys Real Estate Services, Inc. As
Landlord disburses the allowance of $953,160.00, Landlord shall promptly advise
Tenant of the amounts being disbursed from time to time, including a running
total of advances to date. In the event the cost of construction of the Premises
exceeds $953,160.00, then at its option, Tenant shall either (i) pay Landlord
the entire amount of the excess, in lump sum, within twenty (20) days after
Landlord's billing therefor, or (ii) reduce the amount of the Base Rent
abatement under Article 46 below by the amount of the excess. In the event the
cost of construction of the Premises is less than $953,160.00, then Tenant may
use the unspent portion of Landlord's contribution toward the purchase of
furniture and equipment to be installed in the Premises, which shall be paid to
Tenant within twenty (20) days after Landlord's receipt of paid bills or
invoices and other satisfactory evidence of Tenant's payment of the cost of the
furniture and equipment. In the event the cost of construction of the Premises
and the purchase of furniture and equipment installed by Tenant in the Premises
is less than $953,160.00, Tenant shall be entitled to a credit toward the next
Base Rent accruing under the Lease in the amount of the unspent portion of
Landlord's contribution.
At Landlord's sole expense, which shall not be covered by Landlord's
contribution in the above paragraph, Landlord shall
(i) Perform all necessary demolition, including removal or abatement of
any friable asbestos in accordance with applicable law;
(ii) Supply and install sprinklers throughout the Premises;
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(iii) Renovate the men's and ladies bathrooms on the 6th Floor, in
accordance with design specifications by Cope Linder Associates,
with finishes consistent with other mens' and ladies' rooms in the
Building;
(iv) Upgrade the Building mechanical systems per Plan Ml from Brandt,
Ricci, Riley;
(v) Replace the solar film and window blinds, as required, on the second
and sixth floors;
(vi) Install fire detection system in Building corridors, as required by
state and local codes;
(vii) Patch and prepare for finishing the existing fire-rated partitions
and columns and any surface distorted by demolition, excluding
ceiling; and
(viii) Install hardware on existing exit doors, in accordance with state
and local codes.
In the event Tenant vacates the Premises and there is a default in the
payment of Base Rent under the Lease, or in the event Landlord obtains
possession of the Premises or terminates the Lease by reason of a default by
Tenant under the Lease, Tenant shall pay to Landlord, upon demand, as additional
rent hereunder, the full unamortized amounts (based on an amortization period of
ten (10) years and including interest at 8.00% per annum on the outstanding
principal balance) of (i) Landlord's contribution and payment of up to
$953,160.00 in construction costs and fees (and furniture and equipment if
applicable) under the above paragraphs; and (ii) the Base Rent abatement in the
amount of $635,440.00, provided in Article 46 below.
46. BASE RENT ABATEMENT Notwithstanding the provisions of paragraph (a) of
Article 4 above, Landlord hereby grants Tenant a Base Rent abatement in the
total amount of $635,440.00 which shall be applied toward the first twelve (12)
months of Base Rent accruing under the Lease. Landlord and Tenant agree that no
portion of the Base Rent paid by Tenant during the portion of the term of this
Lease occurring after the expiration of any period during which such Rent was
abated shall be allocated, for income tax purposes, by Landlord or Tenant to
such rent abatement period, nor is such Rent intended by Landlord and Tenant to
be allocable, for income tax purposes, to any abatement period.
47. OPTION TO RENEW Landlord hereby grants Tenant an option to renew the
term of the Lease, upon the following terms and conditions:
(a) The renewal term shall be for five (5) years, commencing July 1,
2002 and expiring June 30, 2007;
(b) Tenant must exercise the option, if at all, upon notice to Landlord,
on or before February 28, 2002;
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(c) At the time Tenant delivers its notice of election to renew to
Landlord, this Lease shall be in full force and effect and Tenant
shall not then be in default under any of the terms and conditions
of the Lease beyond any applicable cure period;
(d) The renewal term shall be upon the same terms, covenants and
conditions contained in the Lease, except that the annual Base Rent
shall be the then current Fair Market Rent for comparable space in
the Building as of the effective commencement date of the renewal,
but in no event shall the annual Base Rent for the renewal term be
less than the annual Base Rent plus total accrued additional rent
for Real Estate Taxes and Operation and Maintenance Costs increases
under Article 5 of the Lease payable by Tenant during the last year
of the initial term of this Lease; and
(e) There shall be no further privilege of renewal.
48. TENANT'S RIGHTS OF FIRST OFFER
Second Floor Landlord hereby grants Tenant the Right of First Offer to lease
Suite 208 (containing 1,768 rentable square feet), Suite 209 (containing 353
rentable square feet) and Suite 211 (containing 718 rentable square feet) on the
2nd floor of the Building, shown outlined and cross-hatched on the 2nd floor
plan annexed hereto collectively ("First Offer Space"), upon the following terms
and conditions:
(a) Suite 209 is currently occupied under a lease expiring December 31,
1992. Suites 208 and 211 are currently vacant. Landlord will give
Tenant written notice that Landlord is about to enter into
negotiations to lease all or a portion of the First Offer Space to a
third party and Tenant shall have twenty (20) days after receipt of
such notice to notify Landlord of its exercise of the Right
hereunder;
(b) At the time Tenant delivers to Landlord its notice of exercise of
the Right, Tenant shall not be in default under any of the
provisions of the Lease beyond any applicable cure period;
(c) Base Rent for the First Offer Space shall be at the same Base Rent
Rates payable by Tenant for the Premises under Article 4 above if
the effective date occurs during the first two (2) Lease years and
thereafter at the Fair Market rent for comparable space in the
Building as of the date of Tenant's exercise of its Right of First
Offer.
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(d) Tenant's Percentage under Article 5 above shall be increased
proportionately;
(e) The effective date of the addition of the First Offer Space to the
Premises shall be the 31st day after Tenant's acceptance of
Landlord's notice under (a) above;
(f) Tenant agrees to accept the First Offer Space in "as is" condition,
in the physical state and condition thereof on the effective date
under (e) above, provided that if the effective date occurs during
the first two (2) Lease years, Tenant shall be entitled to receive a
pro rata portion of Landlord's tenant improvement allowance of
$30.00 per rentable square under Article 45 above, using a ratio
whose numerator is the number of months remaining in the initial
Lease term for the First Offer Space and whose denominator is 120
months;
(g) Except for the provisions of paragraphs (c), (d), and (f) above,
Tenant's lease of the First offer Space shall be upon the same terms
and conditions contained in the Lease; and
(h) Upon Tenant's failure to exercise its Right of First Offer with
respect to the First Offer Space, or any part thereof from time to
time, within the time period provided under (a) above, Landlord
shall have the right to pursue its negotiations for a lease of the
First Offer Space, or part thereof, as the case may be, with the
third party.
Fifth Floor Landlord hereby grants Tenant the Right of First Offer to lease the
10,491 rentable square feet of space on the 5th floor of the Building, shown
outlined and cross-hatched on the 5th floor plan annexed hereto ("First Offer
Space"), upon the following terms and conditions:
(a) The First Offer Space is currently occupied under a lease expiring
February 28, 1994. Landlord will give Tenant written notice, no
later than January 1, 1994, that Landlord is about to enter into
negotiations to lease all or a portion of the First Offer Space to a
third party and Tenant shall have twenty (20) days after receipt of
such notice to notify Landlord of its exercise of the Right
hereunder;
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(b) At the time Tenant delivers to Landlord its notice of exercise of
the Right, Tenant shall not be in default under any of the
provisions of the Lease beyond any applicable cure period;
(c) Base Rent for the First Offer Space shall be at the same Base Rent
Rates payable by Tenant for the Premises under Article 4 above if
the effective date occurs during the first two (2) Lease years and
thereafter at the Fair Market rent for comparable space in the
Building as of the date of Tenant's exercise of its Right of First
Offer.
(d) Tenant's Percentage under Article 5 above shall be increased by
2.8722%;
(e) The effective date of the addition of the First Offer Space to the
Premises shall be the 31st day after Tenant's acceptance of
Landlord's notice under (a) above;
(f) Tenant agrees to accept the First Offer Space in "as is" condition,
in the physical state and condition thereof on the effective date
under (e) above, provided that if the effective date occurs during
the first two (2) Lease years, Tenant shall be entitled to receive a
pro rata portion of Landlord's tenant improvement allowance of
$30.00 per rentable square under Article 45 above, using a ratio
whose numerator is the number of months remaining in the initial
Lease term for the First Offer Space and whose denominator is 120
months;
(g) Except for the provisions of paragraphs (c), (d), and (f) above,
Tenant's lease of the First offer Space shall be upon the same terms
and conditions contained in the Lease; and
(h) Upon Tenant's failure to exercise its Right of First Offer with
respect to the First Offer Space, or any part thereof from time to
time, within the time period provided under (a) above, Landlord
shall have the right to pursue its negotiations for a lease of the
First Offer Space, or part thereof, as the case may be, with the
third party.
Sixth Floor Landlord hereby grants Tenant the Right of First Offer to lease
Suite 620 (containing 2,356 rentable square feet),
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and Suite 619 (containing 826 rentable square feet) on the 6th floor of the
Building, shown outlined and cross-hatched on the 6th floor plan annexed hereto
(collectively "First Offer Space"), upon the following terms and conditions:
(a) Suite 619 is currently occupied under a lease expiring July 14, 1992
and Suite 620 is currently occupied under a lease expiring December
31, 1993. Landlord will give Tenant written notice that Landlord is
about to enter into negotiations to lease all or a portion of the
First Offer Space to a third party and Tenant shall have twenty (20)
days after receipt of such notice to notify Landlord of its exercise
of the Right hereunder;
(b) At the time Tenant delivers to Landlord its notice of exercise of
the Right, Tenant shall not be in default under any of the
provisions of the Lease beyond any applicable cure period;
(c) Base Rent for the First Offer Space shall be at the same Base Rent
Rates payable by Tenant for the Premises under Article 4 above if
the effective date occurs during the first two (2) Lease years and
thereafter at the Fair Market rent for comparable space in the
Building as of the date of Tenant's exercise of its if Right of
First Offer.
(d) Tenant's Percentage under Article 5 above shall be increased
proportionately;
(e) The effective date of the addition of the First Offer Space to the
Premises shall be the 31st day after Tenant's acceptance of
Landlord's notice under (a) above;
(f) Tenant agrees to accept the First Offer Space in "as is" condition,
in the physical state and condition thereof on the effective date
under (e) above, provided that if the effective date occurs during
the first two (2) Lease years, Tenant shall be entitled to receive a
pro rata portion of Landlord's tenant improvement allowance of
$30.00 per rentable square under Article 45 above, using a ratio
whose numerator is the number of months remaining in the initial
Lease term for the First Offer Space and whose denominator is 120
months;
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(g) Except for the provisions of paragraphs (c), (d), and (f) above,
Tenant's lease of the First offer Space shall be upon the same terms
and conditions contained in the Lease; and
(h) Upon Tenant's failure to exercise its Right of First Offer with
respect to the First Offer Space, or any part thereof from time to
time, within the tune period provided under (a) above, Landlord
shall have the right to pursue its negotiations for a lease of the
First Offer Space, or part thereof, as the case may be, with the
third party.
49. PARKING At no charge to Tenant, Tenant shall be entitled to the use of
nine (9) reserved parking spaces for cars and one (1) reserved parking space for
Tenant's van in the private parking lot adjoining the Building throughout the
term. Landlord shall provide the parking space for Tenant's van as near as
practicable to the Building's loading dock.
50. HEATING, VENTILATING AND AIR CONDITIONING SYSTEM With respect to the
Heating, Ventilating and Air Conditioning system and service provided under
Article 12 above, Landlord shall provide:
1. Reheat coils in the supply air duct work for the morning warm up
cycle. This duct work will extend throughout Tenant's space to
provide supply air to a quantity or Variable Air Volume boxes (VAV).
2. The volume of air to Tenant's space will range from 10,000 - 11,000
CFM and the unit S-9 will be rebalanced to provide the proper
amount of air.
3. Induction units along the outside wall will be modified with a two
(2) way valve and thermostat for each column bay.
4. If cooling is required when Building chilled water is off, unit S-9
will supply 100% outside air by means of an economizer.
5. Air conditioning loads have been calculated to include an electrical
allowance of 4.0 watts per square foot.
6. Temperature range of 72 F to 76 F, is based upon:
Outdoor -- 93.0 D.B./75% W.B.
Indoor -- 75.0 D.B./50% R.H.
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ONE BALA PLAZA
Demised Area Plan
[GRAPHIC OMITTED]
The Space Management System
(c) 1982 Space/Data Group
Project# 83093 Date Issued: MAY 31, 1990 Floor: 2
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<PAGE> 83
ONE BALA PLAZA
Demised Area Plan
[GRAPHIC OMITTED]
The Space Management System
(c) 1982 Space/Data Group
Project# 83093 Date Issued: MAY 31, 1990 Floor: 5
----------- ------------ ----
<PAGE> 84
EXHIBIT "B"
RULES AND REGULATIONS
DEFINITIONS
1. Wherever in these Rules and Regulations the word "Tenant" is used, it
shall be deemed to apply to and include Tenant and his agents, employees,
invitees, licensees, subtenants and contractors, and to be of such number
and gender as the circumstances require. The word "room" is deemed to
include the space covered by this Lease. The word "Landlord" shall be
taken to include the employees and agents of Landlord.
CONSTRUCTION
2. The streets, parking areas, sidewalks, entrances, lobbies, halls,
passages, elevators, stairways and other common areas provided by Landlord
shall not be obstructed by Tenant, or used by him for any other purpose
than for ingress and egress.
WASHROOMS
3. Toilet rooms, water-closets and other water apparatus shall not be used
for any purposes other than those for which they were constructed.
INSURANCE REGULATIONS
4. Tenant shall not do anything in the rooms, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of
fire or the rate of fire insurance, or which will conflict with the
regulations of the Fire Department or the fire laws, or with any insurance
policy on the Building or any part thereof, or with any law, ordinance,
rule or regulation affecting the occupancy and use of the rooms, now
existing or hereafter enacted or promulgated by any public authority or by
the Board of Fire Underwriters.
GENERAL PROHIBITIONS
5. In order to insure proper use and care of the Premises, Tenant shall not:
a) Keep animals or birds in the rooms.
b) Use rooms as sleeping apartments.
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SUBLEASE AGREEMENT
THIS SUBLEASE ("Sublease") is made this 19th day of May, 1994, by and
between OSTEOPATHIC MEDICAL CENTER OF PHILADELPHIA, a Pennsylvania corporation
("Sublessor") and MANUGISTICS, INC., a Delaware corporation ("Sublessee").
BACKGROUND
A. Sublessor leases certain premises (the "Leased Premises") located in
the office building (the "Building") known as One Bala Plaza, and located in
Bala Cynwyd, Pennsylvania, pursuant to a lease (the "Prime Lease") dated April
3, 1992 between The Prudential Insurance Company of America ("Lessor") as
landlord, and Sublessor as tenant. A true and correct copy of the Prime Lease is
attached hereto and made a part hereof as Exhibit "A".
B. The Leased Premises consists of approximately 22,280 rentable square
feet located on the sixth floor of the Building (the "Sixth Floor Space") and
approximately 9,492 rentable square feet located on the second floor of the
Building (the "Second Floor Space").
C. Sublessor desires to sublet the Second Floor Space to Sublessee and
Sublessee desire to sublease the Second Floor Space from Sublessor under the
terms and subject to the conditions hereinafter set forth.
TERMS
NOW, THEREFORE, for and in consideration of the foregoing Background and
the mutual covenants, promises, conditions and
<PAGE> 86
agreements herein contained, the parties hereto, intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions. Those capitalized terms not defined herein shall have the
same meanings ascribed to them in the Prime Lease.
2. Sublease Term. Sublessor hereby leases to Sublessee and Sublessee
hereby rents from Sublessor the Second Floor Space for a term (the "Sublease
Term") commencing on the date (the "Sublease Commencement Date") Sublessor
delivers possession of the Second Floor Space to Sublessee, with Sublessor's
Work (as hereafter defined) substantially completed. Subject to delays as set
forth in Section 7 hereof, the Second Floor Space shall be delivered to
Sublessee, with Sublessor's Work substantially completed, three and one-half
months from the first day of the month immediately following the month in which
this Sublease has been fully executed. Sublessor shall endeavor to give
Sublessee written notice at least seven (7) days in advance of the date
Sublessor expects the Second Floor Space to be substantially completed. When the
Sublease Commencement Date has been established, Sublessor and Sublessee shall
execute and deliver an instrument in form satisfactory to both parties
specifying the Sublease Commencement Date. The Sublease Term shall automatically
terminate at midnight on June 30, 2002, without the necessity of notice from
either party.
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3. Rent.
(a) Base Rent. Sublessee shall pay to Sublessor as annual base rent
("Base Rent") for the Second Floor Space, in advance, in successive monthly
installments on the first (1st) day of each and every calendar month without
prior notice or demand, abatement, set-off or deduction whatsoever, the sums
set forth on Exhibit "B" attached hereto and made a part hereof. The first
monthly installment of Base Rent shall be due and payable upon full execution of
this Sublease. In the event the Sublease Term commences on a day other than the
first day of a calendar month, Sublessee shall pay to Sublessor a pro rata
portion of the monthly installment of Base Rent for such partial month.
(b) Additional Rent.
(i) Operation and Maintenance Costs; Taxes. For purposes
hereof, the term "Base Year" shall be defined as calendar year 1994; "Comparison
Year" shall be defined as each calendar year (or part thereof) following the
Base Year; and "Tenant's Percentage" shall be 30%, which is the ratio that the
rentable square feet of the Second Floor Space (i.e. 9,492) bears to the total
rentable square feet of the Leased Premises (i.e. 31,772). For each Comparison
Year during the Sublease Term, Sublessee shall pay directly to Sublessor prior
to the date that the corresponding payment for Operation and Maintenance Costs
is due under the Prime Lease, Sublessee's Percentage of (1) any increase in
Operation and Maintenance Costs (as defined in the Prime Lease) for the Leased
Premises for each Comparison Year
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over the Operation and Maintenance Costs which were due and payable under the
Prime Lease for the Base Year; and (2) any increase in Real Estate Taxes (as
defined in the Prime Lease) for the Leased Premises for each Comparison Year
over the Real Estate Taxes which were due and payable under the Prime Lease for
the Base Year. Sublessor agrees to submit a copy of Lessor's billing statements
for Operation and Maintenance Costs and Real Estate Taxes to Sublessee promptly
upon receipt of same, but in any event not later than ten (10) days prior to the
due date for such payment. Sublessee acknowledges that pursuant to the
provisions of Section 5(i) of the Prime Lease, Sublessor has the right to
examine Lessor's books and records with respect to Operation and Maintenance
Costs within one hundred twenty (120) days following Sublessor's receipt of
Lessor's billing statement. Accordingly, Sublessee agrees to notify Sublessor in
writing at least thirty (30) days prior to the expiration of said one hundred
twenty (120) day period if Sublessee desires to review Lessor's books and
records and shall indicate in such notice, the basis of the dispute. Upon
receipt of such notification, Sublessor agrees to notify Lessor of such dispute
in accordance with the provisions of said Section 5(i). In connection with the
review of Lessor's books and records, Sublessor agrees to provide whatever
assistance may be reasonably requested by Sublessee (at no cost to Sublessor)
and shall, if deemed necessary, conduct the review itself on behalf of both
Sublessor and Sublessee, provided Sublessee shall pay all costs associated with
such review and
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shall reimburse Sublessor for any reasonable out-of-pocket costs or expenses
incurred by Sublessor. Unless Sublessee notifies Sublessor in accordance with
the time periods hereinabove set forth, such statement shall be considered as
final and accepted by Sublessee.
(ii) Utilities. As part of Sublessor's Work, Sublessor shall
install a separate electric meter in the Second Floor Space to monitor
Sublessee's usage of the supplemental cooling unit to be installed in the
workroom as required by the Lessor. Sublessee agrees to pay directly to
Sublessor prior to the date the corresponding payment is due under the Prime
Lease, all utility charges or other fees related to such usage.
(iii) Other Charges. Sublessee shall pay directly to Sublessor
prior to the date the corresponding payment is due under the Prime Lease,
Sublessee's Percentage of all other items of additional rent or other sums due
under the Prime Lease, except for any late charges or other payments imposed by
the Prime Lease which are due by reason of Sublessor's default but which are not
attributable to a default on the part of Sublessee. Notwithstanding the
foregoing, Sublessee shall be responsible for the full amount of all charges or
other payments imposed by the Prime Lease which are due by reason of Sublessee's
default under this Sublease.
(c) Place of Payment. All Base Rent and Additional Rent and/or any
other charge herein reserved, included, or agreed to be treated as rent (all
Base Rent, Additional Rent and such
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other charges, are sometimes hereinafter collectively referred to as "Rent")
shall be payable at the office of Sublessor, or at such other place as Sublessor
may from time to time designate by notice in writing.
4. Late Charges. In addition to the remedies available to Sublessor in the
event of default, if Sublessee shall fail to pay any item of Rent within seven
(7) days after its due date, Sublessee shall pay a late charge in an amount
equal to ten percent (10%) of the amount due to cover the extra expense involved
in handling delinquent payments. The parties agree that this is not a penalty
but is a reasonable estimate of the additional expense Sublessor will incur in
the event of Sublessee's late payment.
5. Use. Sublessee shall use and occupy the Second Floor Space for the
purposes permitted under the Prime Lease and for no other purpose. Sublessee
shall observe and comply with all Rules and Regulations of the Building.
6. Application of Prime Lease.
(a) Sublessee's Obligations. This Sublease is expressly subject and
subordinate to all of the terms and conditions of the Prime Lease, and to all
amendments, renewals and extensions thereof, and all of the terms, provisions
and covenants as contained in the Prime Lease are incorporated herein by
reference, except as herein expressly set forth. Sublessee hereby covenants and
agrees to observe all of the terms, conditions, covenants imposed upon the
Tenant under the Prime
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Lease and to perform all of the duties and obligations imposed upon the Tenant
thereunder, except with regard to the payment of Base Rent and Additional Rent
as set forth herein. To the extent any provision of this Sublease is
inconsistent with any provisions of the Prime Lease, this Sublease shall govern
except that if the standard for performance is more stringent under either the
Prime Lease or this Sublease, the more stringent provisions shall prevail and
Sublessee shall be obligated to comply therewith. Sublessee acknowledges that
any default by it under this Sublease may constitute a default by Sublessor as
Tenant under the Prime Lease, and that Sublessee's liability to Sublessor shall
include, but not be limited to, any damages or liabilities arising from
Sublessee's default hereunder incurred by Sublessor to Lessor under the Prime
Lease.
(b) No Duty to Render Services. Sublessor is not and shall not be
required to render any services or utilities of any kind whatsoever to Sublessee
or to perform any obligation of Landlord under the Prime Lease. Sublessor shall
not be liable to Sublessee for any default or failure on behalf of the Lessor
under the Prime Lease in the performance or nonperformance by the Lessor of any
of its covenants and obligations under the Prime Lease.
(c) Insurance. During the Sublease Term, Sublessee agrees to
maintain all insurance as required on the part of the Tenant under the Prime
Lease, and shall name as additional insureds, as their interests may appear,
both the Lessor and
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Sublessor. Prior to the Sublease Commencement Date, Sublessee shall deliver to
Sublessor a certificate of insurance evidencing the existence of such insurance.
At least thirty (30) days before any insurance policy shall expire, Sublessee
shall deliver to Sublessor replacement certificates of insurance.
(d) Inspections. Sublessor shall have the right to enter the Second
Floor Space upon twenty-four (24) hours prior notice to Sublessee for purposes
of inspection and for the other purposes for which rights of entry are reserved
under the Prime Lease, except that such prior notice shall not be required in
the case of emergency.
7. Tenant Improvements.
(a) Performance of Sublessor's Work; Allowance. Sublessor has agreed
to perform certain leasehold improvement work ("Sublessor's Work") to the Second
Floor Space in accordance with the plans (the "Plans") prepared by Space Design,
Inc. Sublessee hereby acknowledges its receipt and approval of the Plans. It is
understood and agreed that Sublessee's telephone, data and furniture
installations shall not be included as part of Sublessor's Work. Sublessor's
Work shall be performed using building standard materials, quantities and
procedures then in use by Lessor. Sublessor shall pay for a portion of the "Cost
of Work" (as defined below) in an amount not to exceed $64,730.00 (the
"Allowance"). In the event the Cost of Work exceeds the amount of the Allowance,
Sublessee shall pay such excess costs as Additional Rent, promptly when due.
Sublessee shall not be
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entitled to any credit, abatement or payment from Sublessor in the event that
the amount of the Allowance exceeds the Cost of the Work. For purposes hereof,
the term "Cost of the Work" shall mean and include any and all costs of
Sublessor's Work, including, without limitation, the cost of the Plans (not to
exceed $3,000.00), all labor (including overtime), all materials constituting
Sublessor's Work, and Lessor's supervisory fees charged in connection with
Sublessor's Work. It is understood and agreed that, with the exception of
Sublessor's Work, Sublessor shall have no obligation to perform any work,
repairs, improvements or alterations to the Second Floor Space at the time of
letting or at any time thereafter.
(b) Substantial Completion. Sublessor shall cause Sublessor's Work
to be "substantially completed" on or before the anticipated Sublease
Commencement Date as specified in Section 2 hereof, subject to delays caused by
strikes, lockouts, boycotts or other labor problems, casualties, discontinuance
of any utility or other service required for performance of Sublessor's Work or
any other matter beyond the control of Sublessor (or beyond the control of
Sublessor's contractors or subcontractors). Sublessor's Work shall be deemed to
be "substantially completed" for purposes of this Sublease on the date Space
Design, Inc. issues a written certificate to Sublessor and Sublessee certifying
that the Sublessor's Work has been substantially completed (i.e. completed
except for minor punchlist items listed in such architect's certificate), or
when Sublessee first takes
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occupancy of the Second Floor Space, whichever first occurs. In the event
Sublessor's Work is not deemed to be substantially completed on or before the
anticipated Sublease Commencement Date as specified in Section 2 hereof, (i)
Sublessor agrees to use reasonable efforts to complete Sublessor's Work as soon
as practicable thereafter, (ii) this Sublease shall remain in full force and
effect, and (iii) Sublessor shall not be deemed to be in breach or default of
this Sublease as a result thereof and Sublessor shall have no liability to
Sublessee as a result of any delay in occupancy (whether for damages, abatement
of Base Rent or Additional Rent or otherwise).
8. Alterations/Repairs.
(a) Sublessee shall not make any alterations, improvements or
additions to the Second Floor Space unless Sublessee strictly adheres to the
obligations of Sublessor as Tenant as set forth in Section 9 of the Prime Lease.
(b) Sublessee shall keep the Second Floor Space in a neat and
orderly condition and shall make all repairs to the Second Floor Space required
of Sublessor as Tenant as set forth in Section 15 of the Prime Lease.
9. Assignment or Subletting. Sublessee shall not be permitted to assign
this Sublease, mortgage or encumber Sublessee's interest in this Sublease or
sublet all or any portion of the Second Floor Space without the prior written
consent of Sublessor, which consent may be withheld in Sublessor's sole and
absolute discretion.
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10. Default of Sublessee and Remedies of Sublessor. If Sublessee shall at
any time be in default in the payment of Rent or of any other sum required to be
paid by Sublessee under this Sublease, or in the performance of or compliance
with any of the terms, covenants, conditions or provisions of this Sublease or
the Prime Lease, or violate the provisions of Section 9 above, or if Sublessee
shall be adjudicated as bankrupt, or shall make an assignment for the benefit of
creditors, or shall file a bill in equity or otherwise initiate proceedings for
the appointment of a receiver of Sublessee's assets, or shall file any
proceeding in bankruptcy or for reorganization or an arrangement under any
federal or state law, then and in addition to any other rights or remedies
Sublessor may have under this Sublease and at law and in equity, shall have the
following rights:
(a) Sublessor shall have the same rights and remedies against
Sublessee for default of this Sublease as the Lessor would have against
Sublessor as Tenant under the Prime Lease, including without limitation the
rights of rental acceleration, Sublease termination, retaking possession and
damages.
(b) If Sublessee shall be in default in the payment of Rent or any
other sum required to be paid by Sublessee under this Sublease beyond any
applicable grace period, Sublessee shall pay interest on the delinquent amounts
at the lesser of the maximum rate permitted by law, if any, or eighteen percent
(18%) per annum from the date due to the date paid.
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(c) UPON ANY EVENT OF DEFAULT HEREUNDER WHICH REMAINS UNCURED AFTER
THE EXPIRATION OF THE APPLICABLE NOTICE AND CURE PERIOD PROVIDED IN THIS
SUBLEASE, SUBLESSEE HEREBY EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR SUBLESSEE IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR
RENT, OR OTHER CHARGES OR EXPENSES AGREED TO BE PAID BY SUBLESSEE HEREUNDER, AND
TO CONFESS JUDGMENT AGAINST SUBLESSEE IN ANY COMPETENT COURT FOR THE RECOVERY OF
RENT OR OTHER CHARGES OR EXPENSES; AND IN SUCH SUITS OR ACTIONS TO CONFESS
JUDGMENT AGAINST SUBLESSEE FOR ALL OR ANY PART OF THE RENT INCLUDING, AT
SUBLESSOR'S OPTION, THE RENT FOR THE ENTIRE UNEXPIRED BALANCE OF THE SUBLEASE
TERM, AND ANY OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR
AGREED TO BE PAID BY THE SUBLESSEE; AND FOR INTEREST AND COSTS TOGETHER WITH AN
ATTORNEY'S COMMISSION EQUAL TO THE GREATER OF $2,000.00 OR FIVE PERCENT (5%) OF
THE AMOUNT SO CONFESSED. SAID AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE
THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AND AS
OFTEN AS ANY SAID RENT OR OTHER CHARGES RESERVED AS RENT OR LIQUIDATED DAMAGES
SHALL FALL DUE OR BE IN ARREARS. SUCH POWERS MAY BE EXERCISED AFTER THE
EXPIRATION OF THE SUBLEASE TERM.
(d) IN THE EVENT THAT, AND WHEN THIS SUBLEASE SHALL BE DETERMINED
TERM, COVENANT, LIMITATION OR CONDITION BROKEN, AS AFORESAID, DURING THE
SUBLEASE TERM, AND ALSO WHEN AND AS SOON AS THE SUBLEASE TERM HEREBY CREATED
SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY, AS ATTORNEY FOR
SUBLESSEE TO CONFESS
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JUDGMENT IN EJECTMENT IN ANY COMPETENT COURT AGAINST SUBLESSEE AND ALL PERSONS
CLAIMING UNDER SUBLESSEE FOR THE RECOVERY BY SUBLESSOR OF POSSESSION OF THE
SECOND FLOOR SPACE, WITHOUT ANY LIABILITY ON THE PART OF THE SAID ATTORNEY, FOR
WHICH THIS SUBLEASE SHALL BE A SUFFICIENT WARRANT; WHEREUPON, IF SUBLESSOR SO
DESIRES, A WRIT OF POSSESSION WITH CLAUSES FOR COSTS MAY ISSUE FORTHWITH WITH OR
WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER. IF FOR ANY REASON AFTER SUCH
ACTION HAS BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE POSSESSION OF
THE SECOND FLOOR SPACE REMAINS IN OR IS RESTORED TO SUBLESSEE, THE SUBLESSOR
SHALL HAVE THE RIGHT IN THE EVENT OF ANY SUBSEQUENT DEFAULT OR DEFAULTS TO
CONFESS JUDGMENT IN EJECTMENT AGAINST SUBLESSEE IN THE MANNER AND FORM
HEREINBEFORE SET FORTH, TO RECOVER POSSESSION OF THE SECOND FLOOR SPACE FOR SUCH
SUBSEQUENT DEFAULT. NO SUCH DETERMINATION OF THIS SUBLEASE NOR RECOVERING
POSSESSION OF THE SECOND FLOOR SPACE SHALL DEPRIVE SUBLESSOR OF ANY REMEDIES OR
ACTION AGAINST SUBLESSEE FOR RENT OR FOR DAMAGES DUE OR TO BECOME DUE FOR THE
BREACH OF ANY CONDITION OR COVENANT; NOR THE RESORT TO ANY WAIVER OF THE RIGHT
TO INSIST UPON THE FORFEITURE, AND TO OBTAIN POSSESSION IN THE MANNER PROVIDED
HEREIN.
(e) In any action of ejectment or for Rent in arrears, Sublessor
shall first cause to be filed in such action an affidavit made by it or someone
acting for it setting forth the facts necessary to authorize the entry of
judgment of which facts such affidavit shall be conclusive evidence; and if a
true copy
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of this Sublease is filed in such 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.
(f) No waiver by Sublessor of any breach by Sublessee of any of
Sublessee's obligation, agreements or covenants herein shall be a waiver of any
subsequent breach or of any obligation, agreement of covenant, nor shall any
forbearance by Sublessor to seek a remedy for any breach by Sublessee be a
waiver by Sublessor of any rights and remedies with respect to such or any
subsequent breach.
(g) If Sublessee shall be in default in the performance of any of
its obligations hereunder, Sublessor may (but shall not be obligated to do so),
in addition to any other rights it may have in law or equity, cure such default
on behalf of Sublessee. In such event, Sublessee shall reimburse Sublessor upon
demand, as additional rent, for any costs incurred by Sublessor in curing said
defaults, including without limitation reasonable attorneys' fees from the date
Sublessor incurs such costs, along with interest from the date Sublessor cures
any such default until the date such sum is paid, at the rate of eighteen
percent (18%) per annum.
11. Grace Period. If Sublessee shall be in default of any of the terms and
provisions of this Sublease, and if the Prime Lease shall allow a grace period
for cure of a default of a similar type and nature, then Sublessee shall be
entitled to a
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<PAGE> 99
grace period which is five (5) days less than the corresponding grace period in
the Prime Lease.
12. Indemnification of Sublessor and Lessor. Sublessee agrees to
indemnify, defend and save Sublessor and Lessor harmless from and against any
and all claims by or on behalf of any persons, firms or corporations arising
from the occupancy, conduct, operation or management of the Second Floor Space
or from any work or thing whatsoever done or not done in and on the Second Floor
Space, or arising from any breach or default on the part of Sublessee in the
performance of any covenant or agreement on the part of Sublessee to be
performed pursuant to the terms of this Sublease, or under the law, or arising
from any act, neglect or negligence of Sublessee, or any of its agents,
contractors, subtenants, servants, employees, or licensees, or arising from any
accident, injury or damage whatsoever caused to any person, firm, corporation or
property occurring during the term of this Sublease, in or about the Second
Floor Space, and from and against all costs, expenses and liabilities incurred
in connection with any such claim or action or proceeding brought thereon
(including without limitation the fees of attorneys, investigators and experts).
13. Notices. All notices, requests and demands to be given hereunder shall
be in writing, sent by (i) certified mail, return receipt requested, postage
prepaid; or (ii) recognized overnight courier service; or (iii) by telecopy, to
Sublessor and Sublessee at the addresses set forth below:
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<PAGE> 100
If to Sublessor: Osteopathic Medical Center of
Philadelphia
One Bala Plaza
Suite 600
Bala Cynwyd, PA 19004
Attention: Mr. Lewis H. Abel, C.P.A.,
Chief Operating Officer
If to Sublessee: Manugistics, Inc.
2115 East Jefferson Street
Rockville, Maryland 20852
Attention: Legal Department
After the Sublease Commencement Date, all notices to Sublessee may be sent
as aforesaid to the address of the Second Floor Space. Either party, by notice
similarly given, may change the person and/or address to which future notices
shall be sent.
14. Surrender. At the expiration or earlier termination of this Sublease,
Sublessee covenants that it will peaceably and quietly leave and surrender the
Second Floor Space, and will leave the Second Floor Space in broom clean
condition and in the same condition as Sublessee is required to maintain the
same during the term of this Sublease.
15. Sublessor's Property. It is understood and agreed that this Sublease
shall not include any of Sublessor's furniture, equipment, storage racks, phone
systems, modular work stations, trade fixtures or any other items of personality
or belongings of Sublessor currently installed or located in the Second Floor
Space, all of which shall be removed by Sublessor at its expense prior to the
Sublease Commencement Date.
16. Rights of First Offer. Pursuant to the provisions of Section 48 of the
Prime Lease, Sublessor has been granted a right
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<PAGE> 101
of first offer to lease the following additional space located on the second
floor of the Building: (a) Suite 208 (containing 1768 rentable square feet; (b)
Suite 209 (containing 353 rentable square feet); and (c) Suite 211 (containing
718 rentable square feet) (said additional space is hereinafter collectively
known as the "First Offer Space"). In the event that any portion of the First
Offer Space is offered to Sublessor, Sublessor agrees that it shall not exercise
its rights to lease such space, but instead shall notify Sublessee promptly upon
receipt of Lessor's offer so as to afford Sublessee the opportunity to lease
such additional space directly from Lessor. Any lease of such additional space
shall be a direct lease between Lessor and Sublessee, and it is understood and
agreed that Sublessor shall have no obligation whatsoever in connection
therewith. Sublessee acknowledges and understands that if Sublessee desires to
lease such additional space upon the terms contained in Lessor's offer,
Sublessee must notify Lessor of same within twenty (20) days following the date
Sublessor received the offer from Lessor, and to otherwise comply with the
requirements of Section 48 of the Prime Lease. Sublessee further acknowledges
and understands that even if such notice by Sublessee is timely given, Lessor
may have no contractual or legal obligation to lease such additional space to
Sublessee. Sublessee's obligations and liability under this Sublease shall not
in any way be affected by virtue of Lessor's decision, if any, not to lease such
additional space to Sublessee.
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<PAGE> 102
17. Signage. Sublessor shall, at its expense, cause Lessor to install
standard suite entrance signage for the Second Floor Space and to add Sublessee
to the directory of tenants for the Building.
18. Fire or Other Casualty/Waiver of Subrogation. Sublessor and Sublessee
hereby releases the other and all persons claiming under it, and Sublessee
hereby also releases Lessor, to the extent of its insurance coverage, from any
and all liability for any loss or damage caused by fire or any of the extended
coverage casualties, or any other insured casualty, even if such fire or other
casualty shall be brought about by the fault or negligence of the other party,
or any persons claiming under it, provided, however, this release shall be in
force and effect only with respect to loss or damage occurring during such time
as releasor's policies of fire and extended coverage insurance shall contain a
clause to the effect that this release shall not affect said policies or the
right of releasor to recover thereunder. Sublessor and Sublessee each agrees
that its fire and extended coverage and other insurance policies will include
such a clause (Sublessee's policies to include such clause releasing both
Sublessor and Lessor) so long as the same is obtainable and is includable
without extra cost, or if extra cost is chargeable therefor, so long as the
other party pays such extra cost. If extra cost is chargeable therefor, each
party will advise the other thereof and the amount thereof, and the other party,
at its election, may pay the same but shall not be obligated to do so.
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Sublessor shall not be obligated to pay the extra cost for such a clause in
Sublessee's policy in favor of Lessor, but Lessor may elect to pay the same.
19. Brokers. The parties recognize Grubb & Ellis Company as the broker who
procured this Sublease and agree that Sublessor shall be solely responsible for
the payment of all brokerage commissions to said broker, and that Sublessee
shall have no responsibility for such commission. If Sublessee has dealt with
any other person or real estate broker in respect to the leasing, subleasing or
renting space in the Building, Sublessee shall be solely responsible for the
payment of any fee due said person or firm and Sublessee shall protect,
indemnify, hold harmless and defend Sublessor from any cost, expense or
liability (including attorneys' fees and costs) in respect thereto.
20. Waiver. It is understood and agreed by and among Sublessor and
Sublessee that each of them hereby waives trial by jury in any action,
proceeding or counterclaim brought by either of them against the other on any
matters whatsoever arising out of or in any way connected with this Sublease or
the use or occupancy of the Second Floor Space, or otherwise. It is further
agreed by and between the parties hereto that in the event Sublessor commences
any summary proceedings for non-payment of Rent, Sublessee will not interpose
any counterclaim of whatever nature or description in any such proceeding.
21. Entire Agreement. This Sublease together with the Prime Lease and all
exhibits hereto and thereto contains the
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<PAGE> 104
entire agreement between the parties hereto and there are no collateral
agreements or understandings. This Sublease shall not be modified in any manner
except by an instrument in writing executed by both Sublessor and Sublessee.
22. Successors and Assigns. Subject to the provisions of Section 9 above,
this Sublease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
23. Governing Law. This Sublease shall be governed and construed in
accordance with the substantive laws (without reference to choice of laws rules)
of the Commonwealth of Pennsylvania.
24. Time. Time is of the essence in this Sublease and with regard to all
provisions herein contained.
25. Severability. If any provision hereof shall be found to be illegal,
void or unenforceable, this Sublease shall be construed as if said provisions
were not herein contained, so as to give full force and effect, as nearly as
possible, to the original intent of the parties hereto.
26. Relationship. Nothing herein contained shall be deemed to create any
partnership or joint venture between the parties hereto, and the relationship of
the parties shall be solely that of Sublessor and Sublessee.
27. Lessor's Approval. This Sublease is contingent upon
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<PAGE> 105
the prior written approval of Lessor.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
and year first above written.
SUBLESSOR:
OSTEOPATHIC MEDICAL CENTER OF
PENNSYLVANIA, a Pennsylvania corporation
By: /s/ Lewis H. Abel
----------------------------------------
Lewis H. Abel, Vice
President and Chief
Operating Officer
SUBLESSEE:
MANUGISTICS, INC., a Delaware
corporation
By: /s/ William Kaluza
----------------------------------------
William Kaluza
SENIOR VICE PRESIDENT & CFO
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<PAGE> 106
EXHIBIT "B"
Rent Schedule
<TABLE>
<CAPTION>
Annual Monthly Base Rent
Period Base Rent Base Rent Per Square Foot
- ------ --------- --------- ---------------
<S> <C> <C> <C>
The Sublease
Commencement Date
through June 30,
1998 $149,499.00 $ 12,458.25 $ 15.75
July 1, 1998
through June 30,
2000 $163,737.00 $ 13,644.75 $ 17.25
July 1, 2000
through June 30,
2002 $177,975.00 $ 14,831.25 $ 18.75
</TABLE>
<PAGE> 107
EXHIBIT "B"
ONE BALA PLAZA DEMISED AREA PLAN
- --------------------------------------------------------------------------------
SECOND FLOOR
[GRAPHIC OMITTED]
<PAGE> 108
CONSENT OF LANDLORD
TO SUBLEASE AND AGREEMENT
The Prudential Insurance Company of America, a New Jersey corporation
("Prudential") entered into a certain Lease (the "Lease"), dated November 14,
1996, with Manugistics, Inc., a Delaware corporation ("Sublessor"), pursuant to
which Prudential leased to Sublessor the premises known as Suite 208 (the
"Premises"), containing approximately 2,812 rentable square feet of space, in
the building known as One Bala Plaza (the "Building") located on land in Bala
Cynwyd, Lower Merion Township, Montgomery County, Pennsylvania (the "Property")
as more particularly described in the Lease.
Bala Plaza, Inc., a Delaware corporation ("Landlord"), thereafter
succeeded to the right, title and interest of Prudential in and to the Building
and the Property, and all of Prudential's right, title and interest as the
"Landlord" under the Lease was assigned to Landlord.
Sublessor now desires to sublease the Premises to Philadelphia
Consolidated Holding Corp., a Pennsylvania corporation ("Subtenant"), pursuant
to a certain Agreement of Sublease (the "Sublease"). Sublessor and Subtenant
have requested Landlord's consent to the Sublease, and, subject to the terms and
conditions set forth herein, Landlord is willing to grant such consent.
(Sublessor also desires to sub-sublease certain premises adjoining the Premises
to Subtenant, which premises are more fully described in that certain Sublease,
dated May 19, 1994, between Osteopathic Medical Center of Philadelphia, as
sublessor, and Sublessor, as subtenant, and Sublessor and Subtenant are
contemporaneously seeking Landlord's consent thereto. Such sub-sublease shall be
referred to herein as the "Sub-Sublease.")
Landlord hereby consents to the execution by Sublessor and Subtenant of
the Sublease attached hereto as Exhibit "A", and to use of the Premises for
general and administrative office purposes, upon the following terms, covenants,
and conditions to which all parties hereto agree to be bound:
1. Upon the execution by Sublessor and Subtenant of the Sublease,
Sublessor shall deliver to Landlord a true copy of it. The parties hereto
acknowledge that the Sublease is subject to and subordinate to all provisions of
the Lease. Except to the extent set forth in Sections 3 and 11 below, nothing
therein shall be deemed a waiver of any of the terms of the Lease.
2. The entry into the Sublease shall in no way be deemed to have waived or
modified Sublessor's obligation to perform all of the terms, covenants and
conditions of the Lease required to be performed by Sublessor, including without
limitation the obligation of Sublessor to pay rent thereunder. Nothing in the
Sublease shall in any way whatsoever expand the liability or obligations of
Landlord, whether to Sublessor, Subtenant or any other person or entity.
<PAGE> 109
3. Any termination of the Lease for any cause whatever shall automatically
terminate the Sublease and all of Subtenant's rights thereunder; provided,
however, that Landlord shall provide copies to Subtenant of any default notices
delivered by Landlord to Sublessor pertaining to the Lease and shall permit
Subtenant to cure Sublessor's default provided such cure is accomplished on or
before the date which is two (2) business days after the expiration of any cure
period provided to Sublessor under the Lease (or, in the event there is no such
cure period, on or before the date which is two (2) business days after the date
of Landlord's default notice); provided further, however, that in the event of
any such termination Landlord shall recognize the rights of Subtenant under that
certain Second Amendment to Lease (the "Amendment"), dated of even date
herewith, between Landlord, as landlord, and Subtenant, as tenant, pursuant to
which the Premises will be added to, and become a part of, certain premises
leased by Subtenant directly from Landlord (under that certain lease, dated as
of August, 1995). In the event Landlord, for the account of Sublessor, takes
possession of the Premises without terminating the Lease following a default by
Sublessor thereunder and requires Subtenant to pay rent due under the Sublease
directly to Landlord (as more particularly set forth in Section 9 below), (i)
Landlord shall not be liable for any prepaid rents nor any security deposits
paid by Subtenant, (ii) Landlord shall not be subject to any offsets or defenses
that Subtenant might have against Sublessor, (iii) Landlord shall not be liable
for any concessions or allowances that Sublessor has agreed to grant or give,
(iv) Landlord shall not be liable for any other defaults of Sublessor under the
Sublease, and (v) Subtenant shall attorn to Landlord upon Landlord's request.
In the event Subtenant cures a default of Sublessor in accordance with the
preceding paragraph, such cure shall not constitute a waiver of such default,
and Subtenant shall be subrogated to all rights and remedies which Landlord has
or may have under the Lease.
4. Except as set forth in Section 3 above, Subtenant shall have no rights
against Landlord by reason of this Consent and Agreement, and all of Subtenant's
rights and liabilities shall derive from the terms of the Sublease or Amendment,
as applicable.
5. This Consent and Agreement shall not be deemed an expressed or implied
affirmation or representation of any factual statements or recitations contained
in the Sublease, whether relating to the Lease or otherwise, it being understood
that Subtenant is fully responsible for reviewing and familiarizing itself with
all of the terms and conditions of the Lease.
6. The Sublease may not be assigned or amended, nor may the Premises be
further subleased, without the consent of Landlord. This Consent and Agreement
shall not constitute a waiver of the provisions of the Lease regarding
assignment and subletting without the prior written consent of Landlord, and
Landlord reserves the right to withhold its consent to any future sublease or
assignment in accordance with such provisions.
7. Under no circumstances may Sublessor require Subtenant or, except as
set forth in Section 3 above, may Subtenant on its own, perform its obligations
under the Sublease directly to Landlord, including without limitation paying any
rent due under the Sublease directly to
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<PAGE> 110
Landlord, without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole and absolute discretion. Notwithstanding the
foregoing, (i) Subtenant shall pay directly to Landlord any charges incurred by
or imposed upon Subtenant for services rendered or materials supplied to the
Premises (excluding charges for additional rent due under Article 5 of the
Lease), (ii) Subtenant shall be liable, jointly and severally with Sublessor,
for all charges accruing on and after the Commencement Date (as defined in the
Sublease) imposed in connection with the services described in Article 5 of the
Lease (and which Landlord may require Subtenant to pay directly to Landlord
pursuant to Section 9 below), and (iii) except as set forth in Section 3 above,
the acceptance by Landlord of payment for the charges described in clause (i) or
(ii) (or any other payment) from Subtenant, or from anyone else liable under the
Lease, shall not be deemed a waiver by Landlord of any provisions of the Lease
or this Consent and Agreement.
8. Subject to the provisions of this Section, Sublessor hereby assigns and
transfers to Landlord Sublessor's interest in all rentals and income arising
from the Sublease. Landlord, by executing this document, agrees that until a
default shall occur in the performance of Sublessor's obligations under the
Lease, Sublessor may receive, collect and enjoy the rents accruing under the
Sublease (except to the extent Landlord is entitled to a portion thereof under
the terms of the Lease). However, if Sublessor defaults under the Lease, then
Landlord may, at its option, receive and collect, directly from Subtenant, all
rent owing and to be owed under the Sublease. Landlord shall not by reason of
this assignment of the rentals and income arising from the Sublease, nor by
reason of the collection of the rents from Subtenant be deemed liable to
Subtenant for any failure of Sublessor to perform and comply with any
obligations of Sublessor under the Sublease.
9. Sublessor hereby irrevocably authorizes and directs Subtenant, upon
receipt of any written notice from Landlord stating that a default exists in the
performance of Sublessor's obligations under the Lease, to pay to Landlord the
rents due and to become due under the Sublease. (Landlord acknowledges that it
shall not deliver such statement and request if Subtenant cures Sublessor's
default within the two (2) business day period described in Section 3 above.)
Sublessor agrees that Subtenant shall have the right to rely upon any such
statement and request from Landlord, and that Subtenant shall pay such rents to
Landlord without any obligation or rights to inquire as to whether such default
exists and notwithstanding any notice from or claim from Sublessor to the
contrary, and Sublessor shall have no right or claim against Subtenant for any
such rents so paid by Subtenant. In the event Subtenant does elect to cure a
default by Sublessor under the Lease involving the payment of rent, Sublessor
agrees that the payment of rent due under the Lease to Landlord shall discharge
Subtenant's obligation to pay rent under the Sublease to Sublessor as if the
notice from Landlord contemplated by this Section 9 had been given (unless it is
subsequently determined that such rent was not due to Landlord).
10. Sublessor's obligation to indemnify and hold Landlord harmless as set
forth in Section 16 of the Lease shall include indemnification from any damages,
claims, fines, penalties, costs or expenses arising from or in connection with
the use and occupancy of the Premises, or any portion thereof, by Subtenant, its
agents, employees or contractors.
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<PAGE> 111
11. Except for any telecommunications lines or computer cabling presently
existing in the Premises, which Subtenant shall be obligated to remove if
Landlord so requires in accordance with the Lease, Landlord hereby agrees that
as of the date hereof there are no existing alterations to the Premises that
must be removed upon the expiration of the Sublease. With respect to any future
alterations, Sublessor authorizes Landlord to approve, on behalf of Sublessor,
any alterations to the Premises proposed by Subtenant. In the event Landlord
gives such approval (which shall be governed by the applicable provisions of the
Lease), then Sublessor shall be deemed to have approved such alterations as
well, so long as they are typical office space alterations. Notwithstanding any
such approval, Subtenant shall be obligated to remove the same if Landlord so
requires in accordance with the Lease.
12. To the extent there are any conflicts between the terms of the
Sublease and this Consent and Agreement, the terms of this Consent and Agreement
shall control.
13. Sublessor shall be liable for all costs and expenses incurred by
Landlord in connection with the Sublease, including without limitation the
reasonable legal fees and administrative expenses incurred in connection with
this Consent and Agreement, which costs and expenses are equal to $3,750.
14. Copies of all notices to be given by Sublessor and Subtenant under the
Sublease shall be provided to Landlord via United States mail or via a
nationally recognized overnight courier (such as Federal Express) at the
following address:
Bala Plaza, Inc.
c/o Tower Realty Management Corporation
255 Shoreline Drive, Suite 600
Redwood City, California 94065
Attention: Bala Plaza Asset Manager
With a copy to:
Tower Realty Management Corporation
One Bala Plaza
Suite 501
Bala Cynwyd, PA 19004
Attention: Property Manager
or to such other person at such other address designated by notice sent to
Sublessor and Subtenant. Notices delivered by overnight courier shall be deemed
given upon receipt. Mailed notices shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested. Such notice shall be
deemed to have been given three (3) business days after posting in the United
States mail.
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<PAGE> 112
Landlord shall provide to Subtenant copies of all notices given by
Landlord to Sublessor under the Lease at the address set forth in the Sublease
or such other address designated by notice sent to Landlord by Subtenant.
15. Sublessor shall indemnify and hold Landlord harmless against all
costs, expenses, attorneys' fees, and other liability for commissions or other
compensation claimed by any broker or finder in connection with the sublease of
the Premises.
16. Landlord, Sublessor and Subtenant agree that, notwithstanding any
provision of this Consent and Agreement to the contrary, all rights and
obligations of each of them hereunder, and Landlord's consent to the Sublease,
are contingent upon (a) the execution and delivery by Sublessor and Subtenant of
the Sub-Sublease, (b) the execution and delivery by Landlord, Osteopathic
Medical Center of Philadelphia, Sublessor and Subtenant of the Consent and
Agreement related thereto, and (c) the execution and delivery by Landlord and
Subtenant of the Amendment. Six duplicate originals of each such document shall
be executed by all parties other than Landlord and delivered to Landlord (but
shall not be binding upon Landlord until executed and returned). Upon Landlord's
execution of same, Landlord shall arrange for delivery thereof and confirm in
writing that the contingency set forth in this Section 16 has been satisfied.
5
<PAGE> 113
IN WITNESS WHEREOF, Landlord, Sublessor and Subtenant have executed this
Consent and Agreement as of the 6th day of July, 1998.
Landlord:
BALA PLAZA, INC.
By: /s/ Joe Grubb
---------------------------------------
Name: Joe Grubb
Title: Its Authorized Signatory
(Corporate Seal)
Attest: /s/ Tim Cahill
---------------------------------------
Name: Tim Cahill
Title: Its Authorized Signatory
Sublessor:
MANUGISTICS, INC.
By: /s/ Kenneth S. Thompson
---------------------------------------
Name: Kenneth S. Thompson
Title: Executive Vice President
(Corporate Seal)
Attest: /s/ Peter Q. Repetti
---------------------------------------
Name: Peter Q. Repetti
Title: Sr. Vice President, CFO
Subtenant:
PHILADELPHIA CONSOLIDATED
HOLDINGS CORP.
By: /s/ Jack T. Carballo
---------------------------------------
Name: Jack T. Carballo
Title: Vice President
(Corporate Seal)
Attest: /s/ Christine Kleppe
---------------------------------------
Name: Christine Kleppe
Title: Administrative Assistant
6
<PAGE> 114
EXHIBIT A
AGREEMENT OF SUBLEASE
This Agreement of Sublease ("Agreement") is made this ____ day of June,
1998, by and between MANUGISTICS, INC. ("Sublessor"), a Delaware corporation and
PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania corporation
("Subtenant").
BACKGROUND
A. By that certain Lease dated November 14, 1996 (the "Lease"), a copy of
which is attached hereto as Exhibit "A", between The Prudential Insurance
Company of America, a New Jersey corporation ("Prudential"), as landlord, and
Sublessor, as tenant, Sublessor leased from Prudential the premises known as
Suite 208 (the "Premises"), containing approximately 2,812 rentable square feet
of space, in the building known as One Bala Plaza (the "Building") located on
land in Bala Cynwyd, Lower Merion Township, Montgomery County, Pennsylvania (the
"Property"), as more particularly described in the Lease, at the rental and upon
the terms and conditions set forth in the Lease. Bala Plaza, Inc., a Delaware
corporation ("Landlord"), thereafter succeeded to the right, title and interest
of Prudential in and to the Building and the Property, and all of Prudential's
right, title and interest as the "Landlord" under the Lease was assigned to
Landlord.
B. Sublessor desires to sublease the Premises to Subtenant, upon the terms
and conditions set forth herein. The Premises is substantially shown on Exhibit
"B" attached hereto.
C. Sublessor also desires to sub-sublease certain premises adjoining the
Premises to Subtenant, which premises are more fully described in that certain
Sublease, dated May 19, 1994, between Osteopathic Medical Center of
Philadelphia, as sublessor, and Sublessor, as subtenant, and Sublessor and
Subtenant are contemporaneously seeking Landlord's consent thereto. Such
sub-sublease shall be referred to herein as the "Sub-Sublease."
D. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings established in the Lease.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto, intending to be legally bound hereby, do covenant and agree as
follows:
1. Premises. Sublessor hereby leases to Subtenant, and Subtenant hereby
subleases from Sublessor, the Premises, for the period commencing July 1, 1998
("Commencement Date") and ending on June 30, 2002 ("Expiration Date") upon the
terms and conditions set forth herein and at all times subject to the Lease. The
"Rent Commencement Date" shall be August 1, 1998. Subtenant, for the benefit of
Sublessor and Landlord, hereby agrees that the Lease (other than Section 45
thereof) is incorporated herein by reference, and Subtenant agrees further to be
bound by all of the terms, covenants and conditions on the part of "Tenant" to
be done, performed and observed under the Lease; provided, however, that (i)
nothing herein shall bind Subtenant to the
A-1
<PAGE> 115
obligations of Sublessor under the Lease with respect to the amount of rent and
additional rent (which amounts shall be as set forth in Sections 2 and 3 hereof
and shall be paid by Subtenant to Sublessor), and (ii) if Landlord approves any
of Subtenant's proposed alterations to the Premises, then Sublessor shall be
deemed to have approved such alterations, so long as they are typical office
space alterations (but Subtenant shall be obligated to remove the same if
Landlord so requires in accordance with the Lease).
This Agreement is contingent upon obtaining the prior written consent of
Landlord. If such consent is not obtained by July 15, 1998, this Agreement shall
be null and void.
Sublessor shall deliver possession of the Premises to Subtenant, and
Subtenant shall accept possession of the Premises, in its "as is" condition,
without requiring any alterations, improvements or decorations to be made by
Sublessor or at Sublessor's expense; provided, however, that Sublessor shall
remove all existing workstations and any other furniture or equipment located at
the Premises.
2. Rent. Commencing on the Rent Commencement Date, Subtenant shall pay
Sublessor base rent ("Base Rent") as follows:
ANNUAL BASE RENT
MONTHLY BASE PER RENTABLE SQUARE
PERIOD RENT FOOT
- ------ ---- ----
August 1, 1998 to and $4,335.17 $ 18.50
including June 30, 1999
July 1, 1999 to and including $4,452.33 $ 19.00
June 30, 2000
July 1, 2000 to and including $4,569.50 $ 19.50
June 30, 2001
July 1, 2001 to and including $4,686.67 $ 20.00
June 29, 2002
Monthly Base Rent shall be payable in advance, on the first day of each
month during said term, to Sublessor, at 2115 East Jefferson Street, Rockville,
Maryland 20852, Attention: _______________; or such other place as Sublessor may
designate, without any set off, counterclaim or deduction whatsoever, except
that Subtenant shall pay the first monthly installment within three (3) business
days after Landlord's approval of this Sublease.
If the obligation of Subtenant to pay rent hereunder begins on a day other
than on the first day of a calendar month, rent from such date until the first
day of the following calendar month shall be prorated at the rate of
one-thirtieth (1/30th) of the monthly installment for each day payable in
advance.
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<PAGE> 116
3. Additional Rent. Commencing on the Commencement Date, Subtenant shall
pay to Sublessor, as additional rent hereunder, one hundred percent (100%) of
all additional rent obligations of Sublessor pursuant to Article 5 of the Lease
in accordance with the terms thereof (and Sublessor shall forthwith pay the same
to Landlord); provided, however, that the Base Year for determining such
additional rent shall be calendar year 1998.
4. Overdue Interest. If Subtenant fails to pay any installment of rent or
additional rent under Sections 2 and 3 of this Agreement, respectively, and such
failure continues for a period of five (5) days after it is due and payable,
Subtenant shall pay Sublessor interest at the rate of eighteen percent (18%) per
annum or, if same is usurious, the highest legal rate (as applicable, the
"Default Rate").
5. Use. Subtenant shall use and occupy the Premises as general and
administrative offices and for no other purposes. Subtenant shall comply with
all applicable laws (as more particularly set forth in Section 30 of the Lease).
Subtenant, at its expense, shall maintain and repair the Premises and the
fixtures and equipment therein or appurtenant thereto in first class condition
and repair, will suffer no waste or injury thereto, and at the expiration or
other termination of this Agreement, Subtenant shall surrender the Premises
broom clean and in the same order and condition as on the Commencement Date,
excepting (i) ordinary wear and tear, (ii) casualty not required to be insured
by Subtenant, (iii) condemnation, and (iv) alterations which Subtenant is not
required by Landlord to remove.
6. Assignment and Sublease. Subtenant agrees not to assign, mortgage,
pledge or otherwise encumber this Agreement, nor to sublet the Premises or any
part thereof, without in each instance obtaining the prior written consent of
Landlord and Sublessor. Notwithstanding the foregoing, without the consent of
Landlord or Sublessor but upon notice to both, Subtenant may assign this
Agreement to its parent, affiliate or subsidiary, or to a corporation which is a
successor to Subtenant by merger or consolidation or by acquisition of all or
substantially all of the assets or stock of Subtenant, provided that (i) the
assignment also covers all of Subtenant's rights, titles and interests in, to
and under each of (A) the Sub-Sublease and (B) that certain lease (the
"Philadelphia Insurance Lease"), dated as of August, 1995, between Landlord, as
landlord, and Subtenant, as tenant, pursuant to which certain premises are
leased by Subtenant directly from Landlord (and the sublease and consent
referenced in Article 49 thereof), (ii) the assignee assumes, in full, the
obligations of Subtenant under the Sub-Sublease and the Philadelphia Insurance
Lease (and the sublease and consent referenced in Article 49 thereof), and (iii)
such assignment shall be under and subject to the terms of this Agreement, the
Sub-Sublease and the Philadelphia Insurance Lease (and the sublease and consent
referenced in Article 49 thereof), as applicable, and shall not relieve
Subtenant of any of its obligations under this Agreement, the Sub-Sublease and
the Philadelphia Insurance Lease (and the sublease and consent referenced in
Article 49 thereof).
7. Services. Notwithstanding anything in this Agreement to the contrary,
Subtenant agrees that Sublessor shall not be obligated to furnish for Subtenant
any services of any nature
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<PAGE> 117
whatsoever, including, without limitation, the furnishing of heat, electrical
energy, air conditioning, elevator service, cleaning, window washing, or rubbish
removal services. Subtenant, however, shall be entitled to enjoy such services
to the extent they are provided by Landlord pursuant to the terms of the Lease.
8. Insurance.
a. Subtenant shall maintain at its expense during the term of this
Sublease with respect to the Premises and Subtenant's use thereof and of the
Property:
(1) Worker's Compensation Insurance in the amounts required by
statute, and Employer Liability Insurance in at least the following amounts: (a)
Bodily Injury by Accident - $500,000 per accident, (b) Bodily Injury by Disease
- - $500,000 per employee, and (c) Aggregate Limit - $500,000 per policy year.
(2) Property Damage Insurance for the protection of Subtenant
and Sublessor, as their interests may appear, covering any alterations or
improvements in excess of those contemplated by Section 2(b) above, Subtenant's
personal property, business records, fixtures and equipment, and other insurable
risks in amounts not less than the full insurable replacement cost of such
property and full insurable value of such other interests of Subtenant, with
coverage at least as broad as the most recent editions published by Insurance
Services Office, Inc. or any successor organization ("ISO"), of: (a) Building
and Personal Property Coverage Form (CP0010), (b) Causes of Special Loss Form
(CP1030), and (c) Sprinkler Leakage - Earthquake Extension (CP1039).
(3) Liability insurance as follows: (I) Commercial General
Liability Insurance ("CGL") at least as broad as the most recent ISO edition of
Commercial General Liability Coverage Form (CGOOO1) with limits of at least the
following amounts: (a) Death or Bodily Injury - $1,000,000, (b) Property Damage
or Destruction (including loss of use thereof) - $1,000,000, (c)
Products/Completed Operations - $1,000,000, (d) Personal or Advertising injury -
$1,000,000, (e) Each Occurrence Limit - $1,000,000, and (f) General Aggregate
Limit - $2,000,000 per policy year, and (II) Umbrella Liability Insurance with a
limit of at least $15,000,000 (which may be carried in one or more policies).
Such CGL and Umbrella policies shall include endorsements: (1) for contractual
liability covering Subtenant's indemnity obligations under this Lease, and (2)
adding Sublessor, Landlord, the management company for the Property, and any
other parties reasonably designated by Sublessor, as Additional Insureds, on a
form at least as broad as the most recent edition of Additional Insured -
Manager or Lessor of Premises Endorsement Form (CG2O11) published by ISO.
b. Upon the request of Sublessor from time to time during the term
of this Sublease, Subtenant shall provide Sublessor with certificates evidencing
the coverage required hereunder. Such certificates shall: (i) be on ACORD Form
27 or such other form approved or required by Sublessor, (ii) state that such
insurance coverage may not be changed, canceled or
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<PAGE> 118
non-renewed without at least thirty (30) days' prior written notice to
Sublessor, and (iii) include, as attachments, duplicate originals or copies of
the Additional Insured endorsements to Subtenant's CGL policy required above
(once the same are provided to Tenant). Subtenant shall provide renewal
certificates to Sublessor at least thirty (30) days prior to expiration of such
policies. Except as expressly provided to the contrary herein, coverage
hereunder shall apply to events occurring during the policy year regardless of
when a claim is made. Sublessor may periodically require that Subtenant
reasonably increase or expand the aforementioned coverage. Except as provided to
the contrary herein, any insurance carried by Sublessor or Subtenant shall be
for the sole benefit of the party carrying such insurance. If Subtenant obtains
insurance under "blanket policies," Subtenant shall obtain an endorsement
providing that the insurance limits required hereunder are not subject to
reduction or impairment by claims or losses at other locations. Subtenant's
insurance policies shall be primary to all policies of Sublessor and any other
Additional Insureds (whose policies shall be deemed excess and
non-contributory). All insurance required hereunder shall be provided by
responsible insurers licensed in the Commonwealth of Pennsylvania, and shall
have a general policy holder's rating of at least A and a financial rating of at
least IX in the then current edition of Best's Insurance Reports. The parties
mutually hereby waive all rights and claims against each other for all losses
covered by their respective insurance policies, and waive all rights of
subrogation of their respective insurers. The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder. Sublessor disclaims any representation as to whether the foregoing
coverages will be adequate to protect Subtenant, and Subtenant agrees to carry
such additional coverage as may be necessary or appropriate.
9. Hold Harmless. Neither Sublessor nor Subtenant shall do or cause to be
done, or suffer or permit any act or thing to be done, which may cause the Lease
to be canceled, terminated, forfeited or prejudiced or which may make the other
party liable for any damages, claims, fines, penalties, costs or expenses
thereunder. Each of the Sublessor and Subtenant shall indemnify and save
harmless the other from all suits, actions, judgments, damages, claims,
liabilities, awards, losses, fines penalties, costs, charges and expenses,
including attorneys fees, that either may sustain by reason of the other's
failure to perform the terms of this Agreement or the Lease or by reason of the
breach by the other of any of the terms, covenants or conditions of this
Agreement or the Lease except those arising out of the negligent acts or
omissions of the party being indemnified.
Without limiting the generality of the preceding paragraph, Sublessor
agrees that, in the event Sublessor defaults under the Lease (beyond any
applicable notice and cure period) and Subtenant cures such default by
performing Sublessor's obligation directly to Landlord, Subtenant's damages
shall include, without limitation, all sums paid by Subtenant in effectuating
such cure, together with interest at the Default Rate (unless it is subsequently
determined that such sums were not due to Landlord). Likewise, in the event the
Lease is terminated in accordance with the terms thereof, Subtenant's damages
shall include, without limitation, all sums paid by Subtenant in excess of those
due and owing under the Sublease (specifically
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<PAGE> 119
including rent), together with interest at the Default Rate (unless it is
subsequently determined that such sums were not due to Landlord).
10. Defaults. The provisions of the Lease relating to defaults and
remedies (including without limitation the applicable notice and/or cure
periods) are incorporated herein by reference as a separate paragraph of this
Agreement and, for purposes of determining the parties defaults and remedies
hereunder, said provisions shall apply between Sublessor and Subtenant reading
"Landlord" to mean Sublessor and "Tenant" to mean Subtenant.
11. Security Deposit. Simultaneously with the execution of this Agreement
by Subtenant, Subtenant shall deposit with Sublessor the sum of Four Thousand
Three Hundred Thirty-Five and 17/100ths Dollars ($4,335.17) (the "Security
Deposit") to be held by Sublessor without interest payable to Subtenant. The
Security Deposit shall be security for the payment and performance by Subtenant
of all Subtenant's obligations, covenants, conditions and agreement sunder this
Agreement. In the event of any default by Subtenant hereunder, Sublessor shall
have the right, but shall not be obligated, to apply all or any portion of the
Security Deposit to cure such default, in which event Subtenant shall be
obligated to promptly deposit with Sublessor that portion of the Security
Deposit used to cure such default. So long as Subtenant is not in default
hereunder, Sublessor shall return any unused portion of the Security Deposit to
Subtenant within thirty (30) days after expiration of the term of this
Agreement.
12. Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns. This Agreement constitutes the entire
agreement between the parties hereto and may not be modified except by an
instrument in writing signed by the parties hereto.
13. Notices. Whenever it shall be necessary or desirable for either party
to this Agreement to serve any notice or demand on the other party, such notice
or demand shall be served by certified mail, return receipt requested, or by
overnight courier (such as Federal Express), next day delivery, at the addresses
set forth above or at such other address as shall be designated by the parties
in accordance with this Section. Each party shall provide to the other copies of
all notices received by each from Landlord.
14. Amendments. No amendments shall be made to this Agreement without the
prior written approval of Landlord in accordance with the terms of the Lease.
15. Brokers. Subtenant represents to Sublessor that, other than EBI
Commercial and Grubb & Ellis (collectively, "Brokers"), Subtenant has not dealt
with any broker, finder or agent in connection with the Premises or the
negotiation and execution of this Sublease. Subtenant shall indemnify and hold
Sublessor harmless against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any other broker,
finder or claiming by, through or under Subtenant. Sublessor represents to
Subtenant that, other than Brokers, Sublessor has not dealt with any broker,
finder or agent in connection with the Premises
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<PAGE> 120
or the negotiation and execution of this Sublease. Sublessor shall be
responsible for all commissions or other compensation owing to Brokers pursuant
to separate agreements and shall indemnify and hold Subtenant harmless against
all costs, expenses, attorneys' fees, and other liability for commissions or
other compensation claimed by any broker, finder or agent claiming by, through
or under Sublessor, including without limitation Brokers.
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<PAGE> 121
IN WITNESS WHEREOF, Sublessor and Subtenant have executed this Agreement
of Sublease as of the date first above written.
Sublessor:
MANUGISTICS, INC., a Delaware
corporation
By:
----------------------------------------
Name:
Title:
(Corporate Seal)
Attest:
------------------------------------
Name:
Title:
Subtenant:
PHILADELPHIA CONSOLIDATED HOLDING CORP., a
Pennsylvania corporation
By:
----------------------------------------
Name:
Title:
(Corporate Seal)
Attest:
------------------------------------
Name:
Title:
A-8
<PAGE> 122
EXHIBIT "A"
[Attach Copy of Lease]
A-9
<PAGE> 123
EXHIBIT "B"
[Attach Plan of Premises]
A-10
<PAGE> 124
AGREEMENT OF SUBLEASE
This Agreement of Sublease ("Agreement") is made this 6th day of July,
1998 by and between MANUGISTICS, INC. ("Sublessor"), a Delaware corporation and
PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania corporation
("Subtenant").
BACKGROUND
A. By that certain Lease dated November 14, 1996 (the "Lease"), a copy of
which is attached hereto as Exhibit "A", between The Prudential Insurance
Company of America, a New Jersey corporation ("Prudential"), as landlord, and
Sublessor, as tenant, Sublessor leased from Prudential the premises known as
Suite 208 (the "Premises"), containing approximately 2,812 rentable square feet
of space, in the building known as One Bala Plaza (the "Building") located on
land in Bala Cynwyd, Lower Merion Township, Montgomery County, Pennsylvania (the
"Property"), as more particularly described in the Lease, at the rental and upon
the terms and conditions set forth in the Lease. Bala Plaza, Inc., a Delaware
corporation ("Landlord"), thereafter succeeded to the right, title and interest
of Prudential in and to the Building and the Property, and all of Prudential's
right, title and interest as the "Landlord" under the Lease was assigned to
Landlord.
B. Sublessor desires to sublease the Premises to Subtenant, upon the terms
and conditions set forth herein. The Premises is substantially shown on Exhibit
"B" attached hereto.
C. Sublessor also desires to sub-sublease certain premises adjoining the
Premises to Subtenant, which premises are more fully described in that certain
Sublease, dated May 19, 1994, between Osteopathic Medical Center of
Philadelphia, as sublessor, and Sublessor, as subtenant, and Sublessor and
Subtenant are contemporaneously seeking Landlord's consent thereto. Such
sub-sublease shall be referred to herein as the "Sub-Sublease."
D. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings established in the Lease.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto, intending to be legally bound hereby, do covenant and agree as
follows:
1. Premises. Sublessor hereby leases to Subtenant, and Subtenant hereby
subleases from Sublessor, the Premises, for the period commencing July 1, 1998
("Commencement Date") and ending on June 30, 2002 ("Expiration Date") upon the
terms and conditions set forth herein and at all times subject to the Lease. The
"Rent Commencement Date" shall be August 1, 1998. Subtenant, for the benefit of
Sublessor and Landlord, hereby agrees that the Lease (other than Section 45
thereof) is incorporated herein by reference, and Subtenant agrees further to be
bound by all of the terms, covenants and conditions on the part of "Tenant" to
be done, performed and observed under the Lease; provided, however, that (i)
nothing herein shall bind Subtenant to the
<PAGE> 125
obligations of Sublessor under the Lease with respect to the amount of rent and
additional rent (which amounts shall be as set forth in Sections 2 and 3 hereof
and shall be paid by Subtenant to Sublessor), and (ii) if Landlord approves any
of Subtenant's proposed alterations to the Premises, then Sublessor shall be
deemed to have approved such alterations, so long as they are typical office
space alterations (but Subtenant shall be obligated to remove the same if
Landlord so requires in accordance with the Lease).
This Agreement is contingent upon obtaining the prior written consent of
Landlord. If such consent is not obtained by July 15, 1998, this Agreement shall
be null and void.
Sublessor shall deliver possession of the Premises to Subtenant, and
Subtenant shall accept possession of the Premises, in its "as is" condition,
without requiring any alterations, improvements or decorations to be made by
Sublessor or at Sublessor's expense; provided, however, that Sublessor shall
remove all existing workstations and any other furniture or equipment located at
the Premises.
2. Rent. Commencing on the Rent Commencement Date, Subtenant shall pay
Sublessor base rent ("Base Rent") as follows:
<TABLE>
<CAPTION>
ANNUAL BASE RENT
MONTHLY BASE PER RENTABLE SQUARE
PERIOD RENT FOOT
- ------ ---- ----
<S> <C> <C>
August l, l998 to and $4,335.17 $18.50
including June 30, 1999
July 1, 1999 to and including $4,452.33 $19.00
June 30, 2000
July 1, 2000 to and including $4,569.50 $19.50
June 30, 2001
July 1, 2001 to and including $4,686.67 $20.00
June 29, 2002
</TABLE>
Monthly Base Rent shall be payable in advance, on the first day of each
month during said term, to Sublessor, at 2115 East Jefferson Street, Rockville,
Maryland 20852, Attention: Real Estate/Lease Administrator; or such other place
as Sublessor may designate, without any set off, counterclaim or deduction
whatsoever, except that Subtenant shall pay the first monthly installment within
three (3) business days after Landlord's approval of this Sublease.
If the obligation of Subtenant to pay rent hereunder begins on a day other
than on the first day of a calendar month, rent from such date until the first
day of the following calendar month shall be prorated at the rate of
one-thirtieth (1/30th) of the monthly installment for each day payable in
advance.
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<PAGE> 126
3. Additional Rent. Commencing on the Commencement Date, Subtenant shall
pay to Sublessor, as additional rent hereunder, one hundred percent (100%) of
all additional rent obligations of Sublessor pursuant to Article 5 of the Lease
in accordance with the terms thereof (and Sublessor shall forthwith pay the same
to Landlord); provided, however, that the Base Year for determining such
additional rent shall be calendar year 1998.
4. Overdue Interest. If Subtenant fails to pay any installment of rent or
additional rent under Sections 2 and 3 of this Agreement, respectively, and such
failure continues for a period of five (5) days after it is due and payable,
Subtenant shall pay Sublessor interest at the rate of eighteen percent (18%) per
annum or, if same is usurious, the highest legal rate (as applicable, the
"Default Rate").
5. Use. Subtenant shall use and occupy the Premises as general and
administrative offices and for no other purposes. Subtenant shall comply with
all applicable laws (as more particularly set forth in Section 30 of the Lease).
Subtenant, at its expense, shall maintain and repair the Premises and the
fixtures and equipment therein or appurtenant thereto in first class condition
and repair, will suffer no waste or injury thereto, and at the expiration or
other termination of this Agreement, Subtenant shall surrender the Premises
broom clean and in the same order and condition as on the Commencement Date,
excepting (i) ordinary wear and tear, (ii) casualty not required to be insured
by Subtenant, (iii) condemnation, and (iv) alterations which Subtenant is not
required by Landlord to remove.
6. Assignment and Sublease. Subtenant agrees not to assign, mortgage,
pledge or otherwise encumber this Agreement, nor to sublet the Premises or any
part thereof, without in each instance obtaining the prior written consent of
Landlord and Sublessor. Notwithstanding the foregoing, without the consent of
Landlord or Sublessor but upon notice to both, Subtenant may assign this
Agreement to its parent, affiliate or subsidiary, or to a corporation which is a
successor to Subtenant by merger or consolidation or by acquisition of all or
substantially all of the assets or stock of Subtenant, provided that (i) the
assignment also covers all of Subtenant's rights, titles and interests in, to
and under each of (A) the Sub-Sublease and (B) that certain lease (the
"Philadelphia Insurance Lease"), dated as of August, 1995, between Landlord, as
landlord, and Subtenant, as tenant, pursuant to which certain premises are
leased by Subtenant directly from Landlord (and the sublease and consent
referenced in Article 49 thereof), (ii) the assignee assumes, in full, the
obligations of Subtenant under the Sub-Sublease and the Philadelphia Insurance
Lease (and the sublease and consent referenced in Article 49 thereof), and (iii)
such assignment shall be under and subject to the terms of this Agreement, the
Sub-Sublease and the Philadelphia Insurance Lease (and the sublease and consent
referenced in Article 49 thereof), as applicable, and shall not relieve
Subtenant of any of its obligations under this Agreement, the Sub-Sublease and
the Philadelphia Insurance Lease (and the sublease and consent referenced in
Article 49 thereof).
7. Services. Notwithstanding anything in this Agreement to the contrary,
Subtenant agrees that Sublessor shall not be obligated to furnish for Subtenant
any services of any nature
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<PAGE> 127
whatsoever, including, without limitation, the furnishing of heat, electrical
energy, air conditioning, elevator service, cleaning, window washing, or rubbish
removal services. Subtenant, however, shall be entitled to enjoy such services
to the extent they are provided by Landlord pursuant to the terms of the Lease.
8. Insurance.
a. Subtenant shall maintain at its expense during the term of this
Sublease with respect to the Premises and Subtenant's use thereof and of the
Property:
(1) Worker's Compensation Insurance in the amounts required by
statute, and Employer Liability Insurance in at least the following amounts: (a)
Bodily Injury by Accident - $500,000 per accident, (b) Bodily Injury by Disease
- - $500,000 per employee, and (c) Aggregate Limit - $500,000 per policy year.
(2) Property Damage Insurance for the protection of Subtenant
and Sublessor, as their interests may appear, covering any alterations or
improvements in excess of those contemplated by Section 2(b) above, Subtenant's
personal property, business records, fixtures and equipment, and other insurable
risks in amounts not less than the full insurable replacement cost of such
property and full insurable value of such other interests of Subtenant, with
coverage at least as broad as the most recent editions published by Insurance
Services Office, Inc. or any successor organization ("ISO"), of: (a) Building
and Personal Property Coverage Form (CP00l0), (b) Causes of Special Loss Form
(CP1030), and (c) Sprinkler Leakage - Earthquake Extension (CP1039).
(3) Liability insurance as follows: (I) Commercial General
Liability Insurance ("CGL") at least as broad as the most recent ISO edition of
Commercial General Liability Coverage Form (CG0001) with limits of at least the
following amounts: (a) Death or Bodily Injury - $1,000,000, (b) Property Damage
or Destruction (including loss of use thereof) - $1,000,000, (c)
Products/Completed Operations - $1,000,000, (d) Personal or Advertising injury -
$1,000,000, (e) Each Occurrence Limit - $1,000,000, and (f) General Aggregate
Limit - $2,000,000 per policy year, and (II) Umbrella Liability Insurance with a
limit of at least $15,000,000 (which may be carried in one or more policies).
Such CGL and Umbrella policies shall include endorsements: (1) for contractual
liability covering Subtenant's indemnity obligations under this Lease, and (2)
adding Sublessor, Landlord, the management company for the Property, and any
other parties reasonably designated by Sublessor, as Additional Insureds, on a
form at least as broad as the most recent edition of Additional Insured -
Manager or Lessor of Premises Endorsement Form (CG2011) published by ISO.
b. Upon the request of Sublessor from time to time during the term
of this Sublease, Subtenant shall provide Sublessor with certificates evidencing
the coverage required hereunder. Such certificates shall: (i) be on ACORD Form
27 or such other form approved or required by Sublessor, (ii) state that such
insurance coverage may not be changed, canceled or
4
<PAGE> 128
non-renewed without at least thirty (30) days' prior written notice to
Sublessor, and (iii) include, as attachments, duplicate originals or copies of
the Additional Insured endorsements to Subtenant's CGL policy required above
(once the same are provided to Tenant). Subtenant shall provide renewal
certificates to Sublessor at least thirty (30) days prior to expiration of such
policies. Except as expressly provided to the contrary herein, coverage
hereunder shall apply to events occurring during the policy year regardless of
when a claim is made. Sublessor may periodically require that Subtenant
reasonably increase or expand the aforementioned coverage. Except as provided to
the contrary herein, any insurance carried by Sublessor or Subtenant shall be
for the sole benefit of the party carrying such insurance. If Subtenant obtains
insurance under "blanket policies," Subtenant shall obtain an endorsement
providing that the insurance limits required hereunder are not subject to
reduction or impairment by claims or losses at other locations. Subtenant's
insurance policies shall be primary to all policies of Sublessor and any other
Additional Insureds (whose policies shall be deemed excess and
non-contributory). All insurance required hereunder shall be provided by
responsible insurers licensed in the Commonwealth of Pennsylvania, and shall
have a general policy holder's rating of at least A and a financial rating of at
least IX in the then current edition of Best's Insurance Reports. The parties
mutually hereby waive all rights and claims against each other for all losses
covered by their respective insurance policies, and waive all rights of
subrogation of their respective insurers. The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder. Sublessor disclaims any representation as to whether the foregoing
coverages will be adequate to protect Subtenant, and Subtenant agrees to carry
such additional coverage as may be necessary or appropriate.
9. Hold Harmless. Neither Sublessor nor Subtenant shall do or cause to be
done, or suffer or permit any act or thing to be done, which may cause the Lease
to be canceled, terminated, forfeited or prejudiced or which may make the other
party liable for any damages, claims, fines, penalties, costs or expenses
thereunder. Each of the Sublessor and Subtenant shall indemnify and save
harmless the other from all suits, actions, judgments, damages, claims,
liabilities, awards, losses, fines penalties, costs, charges and expenses,
including attorneys fees, that either may sustain by reason of the other's
failure to perform the terms of this Agreement or the Lease or by reason of the
breach by the other of any of the terms, covenants or conditions of this
Agreement or the Lease except those arising out of the negligent acts or
omissions of the party being indemnified.
Without limiting the generality of the preceding paragraph, Sublessor
agrees that, in the event Sublessor defaults under the Lease (beyond any
applicable notice and cure period) and Subtenant cures such default by
performing Sublessor's obligation directly to Landlord, Subtenant's damages
shall include, without limitation, all sums paid by Subtenant in effectuating
such cure, together with interest at the Default Rate (unless it is subsequently
determined that such sums were not due to Landlord). Likewise, in the event the
Lease is terminated in accordance with the terms thereof, Subtenant's damages
shall include, without limitation, all sums paid by Subtenant in excess of those
due and owing under the Sublease (specifically
5
<PAGE> 129
including rent), together with interest at the Default Rate (unless it is
subsequently determined that such sums were not due to Landlord).
10. Defaults. The provisions of the Lease relating to defaults and
remedies (including without limitation the applicable notice and/or cure
periods) are incorporated herein by reference as a separate paragraph of this
Agreement and, for purposes of determining the parties defaults and remedies
hereunder, said provisions shall apply between Sublessor and Subtenant reading
"Landlord" to mean Sublessor and "Tenant" to mean Subtenant.
11. Security Deposit. Simultaneously with the execution of this Agreement
by Subtenant, Subtenant shall deposit with Sublessor the sum of Four Thousand
Three Hundred Thirty-Five and 17/100ths Dollars ($4,335.17) (the "Security
Deposit") to be held by Sublessor without interest payable to Subtenant. The
Security Deposit shall be security for the payment and performance by Subtenant
of all Subtenant's obligations, covenants, conditions and agreements under this
Agreement. In the event of any default by Subtenant hereunder, Sublessor shall
have the right, but shall not be obligated, to apply all or any portion of the
Security Deposit to cure such default, in which event Subtenant shall be
obligated to promptly deposit with Sublessor that portion of the Security
Deposit used to cure such default. So long as Subtenant is not in default
hereunder, Sublessor shall return any unused portion of the Security Deposit to
Subtenant within thirty (30) days after expiration of the term of this
Agreement.
12. Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns. This Agreement constitutes the entire
agreement between the parties hereto and may not be modified except by an
instrument in writing signed by the parties hereto.
13. Notices. Whenever it shall be necessary or desirable for either party
to this Agreement to serve any notice or demand on the other party, such notice
or demand shall be served by certified mail, return receipt requested, or by
overnight courier (such as Federal Express), next day delivery, at the addresses
set forth above or at such other address as shall be designated by the parties
in accordance with this Section. Each party shall provide to the other copies of
all notices received by each from Landlord.
14. Amendments. No amendments shall be made to this Agreement without the
prior written approval of Landlord in accordance with the terms of the Lease.
15. Brokers. Subtenant represents to Sublessor that, other than EBI
Commercial and Grubb & Ellis (collectively, "Brokers"), Subtenant has not dealt
with any broker, finder or agent in connection with the Premises or the
negotiation and execution of this Sublease. Subtenant shall indemnify and hold
Sublessor harmless against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any other broker,
finder or claiming by, through or under Subtenant. Sublessor represents to
Subtenant that, other than Brokers, Sublessor has not dealt with any broker,
finder or agent in connection with the Premises
6
<PAGE> 130
or the negotiation and execution of this Sublease. Sublessor shall be
responsible for all commissions or other compensation owing to Brokers pursuant
to separate agreements and shall indemnify and hold Subtenant harmless against
all costs, expenses, attorneys' fees, and other liability for commissions or
other compensation claimed by any broker, finder or agent claiming by, through
or under Sublessor, including without limitation Brokers.
7
<PAGE> 131
IN WITNESS WHEREOF, Sublessor and Subtenant have executed this Agreement
of Sublease as of the date first above written.
Sublessor:
MANUGISTICS, INC., a Delaware
corporation
By: /s/ Kenneth S. Thompson
------------------------------------
Name: Kenneth S. Thompson
Title: Executive Vice President
(Corporate Seal)
Attest: /s/ Peter Q. Repetti
---------------------------------
Name: Peter Q. Repetti
Title: Sr. Vice President, CEO
Subtenant:
PHILADELPHIA CONSOLIDATED HOLDING
CORP., a Pennsylvania corporation
By: /s/ Jack T. Carballo
------------------------------------
Name: Jack T. Carballo
Title: Vice President
(Corporate Seal)
Attest: /s/ Christine Kleppe
---------------------------------
Name: Christine Kleppe
Title: Administrative Assistant
Attest: /s/ Craig P. Keller
---------------------------------
Name: Craig P. Keller
Title: Vice President
8
<PAGE> 132
EXHIBIT "A"
[Attach Copy of Lease]
A-1
<PAGE> 133
LEASE
BALA CYNWYD, PENNSYLVANIA
BETWEEN THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
AS LANDLORD,
AND
MANUGISTICS, INC.,
AS TENANT
<PAGE> 134
TABLE OF ARTICLES
(Revised 11/14/96)
ARTICLE: PAGE
1. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5. Operating and Maintenance Costs and Real Estate Taxes
Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Use of Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Alterations and Trade Fixtures, Removal. . . . . . . . . . . . . . . 7
10. Mechanics' Liens . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. Condition of Premises. . . . . . . . . . . . . . . . . . . . . . . .10
12. Building Services. . . . . . . . . . . . . . . . . . . . . . . . . .10
13. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . .12
14. Access to Premises . . . . . . . . . . . . . . . . . . . . . . . . .15
15. Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16. Indemnification of Landlord and Liability Insurance. . . . . . . . .16
17. Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . . .18
18. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . .18
19. Negative Covenants of Tenant . . . . . . . . . . . . . . . . . . . .18
20. Fire or Other Casualty . . . . . . . . . . . . . . . . . . . . . . .19
21. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . .20
22. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
23. Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . .21
24. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
25. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
26. Requirement of Strict Performance . . . . . . . . . . . . . . . . .28
27. Relocation of Tenant . . . . . . . . . . . . . . . . . . . . . . . .28
28. Surrender of Premises; Holding Over. . . . . . . . . . . . . . . . .29
29. Delay in Possession . . . . . . . . . . . . . . . . . . . . . . . .30
30. Compliance with Laws and Ordinances. . . . . . . . . . . . . . . . .30
31. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
32. Warranty of Tenant . . . . . . . . . . . . . . . . . . . . . . . . .31
33. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . .32
34. Landlord's Obligations . . . . . . . . . . . . . . . . . . . . . . .32
35. Landlord's Liability . . . . . . . . . . . . . . . . . . . . . . . .32
36. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
37. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .32
38. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
39. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
<PAGE> 135
40. Gender . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .33
41. Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
42. Exhibits and Rider . . . . . . . . . . . . . . . . . . . . . . . . .33
43. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .33
44. Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . .33
RIDER ARTICLES: PAGE
45. Landlord's Work and Contributions . . . . . . . . . . . . . . . . . . . 35
EXHIBITS:
A - Floor Plan of Premises
B - Rules and Regulations
C - Building Holidays
D - Schedule of Cleaning Services
E - Confirmation of Lease Term Agreement
<PAGE> 136
LEASE
BALA CYNWYD, PENNSYLVANIA
1. PARTIES This Lease, made this 14th day of November, 1996, by and
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
having an office at 8 Campus Drive, 4th Floor, Arbor Circle South, Parsippany,
NJ 07054 (hereinafter "Landlord"), and Manugistics, Inc., a Delaware Corporation
having its principal offices at 2115 East Jefferson Street, Rockville, Maryland
20852 (hereinafter "Tenant").
2. PREMISES For and in consideration of the rent to be paid and the
covenants and agreements to be performed by Tenant as hereinafter set forth,
Landlord does hereby lease, demise and let unto Tenant that portion of the 2nd
floor, shown outlined and hatched in black on the floor plan attached hereto as
Exhibit A and containing approximately 2,812 rentable square feet (hereinafter
"Premises"), in Landlord's building known as One Bala Plaza and located in Bala
Cynwyd, Pennsylvania (hereinafter "Building").
3. TERM The term of this Lease shall be for five (5) years five (5)
months, commencing on February 1, 1997 (hereinafter "Commencement Date") and
expiring at midnight on June 30, 2002 (hereinafter "Expiration Date"), unless
renewed or sooner terminated as hereinafter provided and subject to the
provisions of Article 29 below.
4. BASE RENT
(a) Base Rent - During the entire term of this Lease, Tenant shall pay to
Landlord, as yearly rent (hereinafter "Base Rent"), the following sums in equal
monthly installments in advance on the first day of each calendar month, without
setoff or deduction:
<TABLE>
<CAPTION>
ANNUAL MONTHLY BASE RENT RATE
PERIOD BASE RENT BASE RENT PER SQUARE FOOT
------ --------- --------- ---------------
<S> <C> <C> <C>
02/01/97 - 06/30/00 $61,864.00 $5,155.33 $22.00
07/01/00 - 06/30/02 $67,488.00 $5,624.00 $24.00
</TABLE>
<PAGE> 137
In the event the term of this Lease commences on a day other than the first day
of a calendar month or expires on a day other than the last day of a calendar
month, Tenant shall pay to Landlord a pro rata portion of the monthly
installment of Base Rent for such partial month.
(b) Additional Rent - Whenever under the terms of this Lease any sum of
money is required to be paid by Tenant in addition to the Base Rent herein
reserved, said additional sum shall be deemed "additional rent" and be
collectible as such with any installment of Base Rent thereafter falling due
hereunder.
(c) All payments of Base Rent and additional rent shall be paid when due,
without demand, at the office of Premisys Real Estate Services, Inc., One Bala
Plaza - Suite E501, Bala Cynwyd, Pennsylvania 19004, or at such other place as
Landlord may from time to time direct. All checks shall be made payable to
Premisys Real Estate Services, Inc., Agent.
(d) Security Deposit - Landlord acknowledges receipt from Tenant of the
sum of Five Thousand One Hundred Fifty Five 33/100 ($5,155.33) Dollars
("Security Deposit") to be held as collateral security for the payment of the
Base Rent, additional rent and all other sums of money payable by Tenant under
this Lease, and for the faithful performance of all other covenants and
agreements of Tenant under this Lease. The Security Deposit, without interest,
shall be repaid to Tenant within ninety (90) days after the expiration date of
this Lease, provided Tenant shall have made all such payments and performed all
such covenants and agreements. Upon any undisputed default by Tenant hereunder,
continuing beyond the expiration of the applicable notice and cure period, at
Landlord's sole option, Landlord may apply all or part of the Security Deposit
on account of such default, and thereafter Tenant shall promptly restore the
original amount of the Security Deposit.
5. OPERATION AND MAINTENANCE COSTS AND REAL ESTATE TAXES ADDITIONAL RENT
(a) The costs and expenses of the operation, maintenance and repair of the
Building (hereinafter "Operation and Maintenance Costs") shall include, without
limitation, the cost and expense to Landlord of the following items:
-2-
<PAGE> 138
(1) All wages, salaries and fees of all employees and agents engaged in
the management, operation, repair, replacement, maintenance and security
of the Building, including taxes, insurance and all other employee
benefits relating thereto;
(2) All supplies and materials used in the management, operation, repair,
replacement, maintenance and security of the Building;
(3) All utilities consumed by the Building and the servicing thereof,
including, without limitation, gas, water, sewer and electricity for
lighting, heating, ventilating and air-conditioning;
(4) All maintenance and service contracts for the operation, repair,
replacement, maintenance, and security of the Building, including, without
limitation, window cleaning, security system, heating, ventilating and
air-conditioning system, fire sprinkler system, elevators and landscaping;
(5) All fire and extended coverage (with all risk coverage) insurance and
comprehensive general liability insurance for the Building (including all
common areas) and Landlord's personal property and fixtures used in
connection therewith;
(6) All repairs (including necessary replacements) and general maintenance
of the Building;
(7) All cleaning and janitorial services for the Building;
(8) The cost of any capital improvements (i) which are made for the
primary purpose of reducing Operation and Maintenance Costs or (ii) which
may be required by governmental authority under any governmental law or
regulation that was not applicable to the Building as of the date of this
Lease, which cost shall be amortized over the expected useful life of the
capital improvement are reasonably determined by Landlord in accordance
with standard accounting practice, together with interest on the
unamortized balance at the rate equal to the Prime Rate being charged by
Mellon Bank East, Philadelphia,
-3-
<PAGE> 139
Pennsylvania or such higher rate as may have been paid by Landlord on
funds borrowed for the purpose of constructing such capital improvements;
and
(9) All other costs and expenses necessarily and reasonably incurred by
Landlord in the proper operation and maintenance of a first-class office
building.
(b) All "Real Estate Taxes" which, for the purposes of this Article, shall
mean all gross real property taxes, charges and assessments (including any
special assessments) which are levied, assessed or imposed by any governmental
authority with respect to the land and the Building and any improvements,
fixtures and equipment and all other property of Landlord, real or personal,
located in or on the Building and used in connection with the operation of the
Building and any tax which shall be levied or assessed in addition to and/or in
lieu of such real or personal property taxes (including, without limitation, any
municipal income tax, any license fees, tax measured by or imposed upon rents,
or other tax or charge upon Landlord's business of leasing the Building), but
shall not include any federal or state income tax, or any franchise, capital
stock, estate or inheritance taxes. In the event that the tax statement from the
taxing authority does not allocate assessments with respect to the Building and
assessments relating to any other improvements located upon the land upon which
the Building is situated, Landlord shall make a reasonable determination of the
proper allocation of such assessment based on standard accounting practices -
(c) (i) "Base Year" shall be defined as calendar year 1996;
(ii) "Comparison Year" shall be defined as each calendar year (or
part thereof) following the Base Year and included in the
original term of this Lease and any renewal thereof; and
(iii) "Tenant's Percentage" shall be 0.7699%, which is the ratio
that the rentable square foot area of the Premises (i.e. 2,812
rentable square feet) bears to the total rentable square foot
area of
-4-
<PAGE> 140
office space in the Building (i.e. 365,256 rentable square
feet)
For each Comparison Year, Tenant shall pay Landlord, as additional rent,
Tenant's Percentage of:
(1) Any increase in the Real Estate Taxes for each Comparison Year over
the Real Estate Taxes for the Base Year; and
(2) Any increase in Operation and Maintenance Costs for each Comparison
Year over the Operation and Maintenance Costs for the Base Year.
(d) During each Comparison Year commencing on January 1, 1997, Landlord
and Tenant agree that Tenant shall pay monthly, in advance, an amount equal to
one-twelfth of Tenant's estimated annual Real Estate Taxes and Operation and
Maintenance Costs additional rent due for each Comparison Year. For each
Comparison Year, Landlord shall make an estimate of Tenant's Real Estate Taxes
and Operation and Maintenance Costs additional rent and notify Tenant as to such
estimate on or about December 15th of the preceding year.
(e) On or about May 1 of each Comparison Year commencing with the 2nd
Comparison Year, Landlord shall submit to Tenant a statement setting forth the
actual Real Estate Taxes and Operation and Maintenance Costs for the Building
for the preceding Comparison Year and Tenant's Percentage of the increase
thereof above the Real Estate Taxes and Operation and Maintenance Costs for the
Base Year. Within thirty (30) days after delivery of such statement to Tenant,
an adjustment shall thereupon be made between Landlord and Tenant to reflect any
difference between Tenant's estimated payments under paragraph (d) above and
Tenant's Percentage of the increase in the actual Real Estate Taxes and
Operation and Maintenance Costs for the preceding Comparison Year above the
Operation and Maintenance Costs for the Base Year. In no event, however, shall
the monthly rent paid by Tenant be less than the Base Rent set forth in Section
4 (a) above.
-5-
<PAGE> 141
(f) All sums due under this Article 5 shall be appropriately apportioned
and prorated for any portion of the year during which this Lease shall be in
force. In the event that this Lease shall expire at any time other than at the
end of a calendar year, then within thirty (30) days after statements reflecting
the actual Operation and Maintenance Costs for the year in which such expiration
occurs are submitted by Landlord to Tenant, either Landlord or Tenant shall pay
to the other party the adjustment sum due. The provisions of this paragraph (f)
shall survive the Expiration Date of this Lease.
(g) If the Building is less than 95% occupied during any portion or all of
the Base Year or any Comparison Year, then Landlord shall adjust the Operation
and Maintenance Costs for any such Year to an amount which reflects what the
Operation and Maintenance Costs would have been for such Year had the Building
been 95% occupied throughout such Year.
6. LATE CHARGES In the event that Tenant shall fail to pay Base Rent or
any additional rent within five (5) days after its due date, Tenant shall pay an
automatic late charge to Landlord of $.05 for each dollar overdue. In addition,
in the event that Tenant shall fail to pay Base Rent or any additional rent
within thirty (30) days after its due date, then from and after the thirty-first
(31st) day until the date Tenant finally pays the Base Rent or additional rent,
Tenant shall pay Landlord an additional late charge at the rate of fifteen (15%)
percent per annum with respect to the delinquent amount. Such late charges shall
be deemed additional rent for all purposes under this Lease.
7. USE OF PREMISES Tenant shall use and occupy the Premises for purposes
of executive and general offices. Tenant shall not use or occupy the Premises
for any other purpose or business, without the prior written consent of
Landlord. Tenant shall observe and comply with the rules "and regulations set
forth on Exhibit attached hereto and made a part hereof (hereinafter "Rules and
Regulations"). The Rules and Regulations shall uniformly apply to Tenant and all
other Building tenants and their respective employees, agents, licensees,
invitees, subtenants and contractors.
-6-
<PAGE> 142
8. COMMON AREAS All parking areas, walkways, elevators, stairs, driveways,
alleys, public corridors, fire escapes, and other areas, facilities and
improvements which may be provided by Landlord from time to time for the general
use, in common, of Tenant and other Building tenants and their employees,
agents, invitees and licensees, shall at all times be subject to the exclusive
control and management of Landlord, including Landlord's right to alter, modify,
or relocate such areas, facilities and improvements. Landlord shall have the
right from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all such common areas, facilities and improvements.
9. ALTERATIONS AND TRADE FIXTURES, REMOVAL
(a) During the term of this Lease, Tenant shall not make any alterations
or additions to the Premises which (i) involve new or relocated partitions, (ii)
are structural in nature, or (iii) affect the Building systems, without the
prior written consent of Landlord. In the event that Tenant shall desire to
perform any such alterations or additions in the Premises, Tenant shall deliver
to Landlord detailed plans and specifications prepared by and at the expense of
Tenant. Landlord shall review such plans and specifications and return same to
Tenant either marked approved, marked to show the corrections required (in which
event such marked-up plans and specifications shall be deemed approved as
marked-up), or marked disapproved with the reasons therefor. If Landlord
disapproves Tenant's plans and specifications, Tenant shall have twenty (20)
days from the date of such disapproval to submit revised plans and
specifications subject to subsequent mark-ups or disapprovals and corrections in
the above manner. Upon approval by Landlord of Tenant's plans and
specifications, Tenant shall proceed with due diligence to commence the work to
be performed by Tenant and shall complete same in a diligent manner. All such
work consented to by Landlord, to be done or performed in or about the Premises
by Tenant, shall be performed (i) at Tenant's sole cost and expense, and (ii) by
contractors and subcontractors reasonably approved by Landlord. Upon completion
of any such work which requires the review of plans and specifications and
continuous observance of construction, Tenant shall pay to Landlord's Building
Manager an amount equal to five (5%) percent of the cost of such work, to
reimburse Landlord's Building Manager for said review and
-7-
<PAGE> 143
observance and the coordination and final inspection of the work. During the
course of performance of any alteration work or additions (whether or not
Landlord's consent is required), Tenant will carry or cause to be carried
Comprehensive General Liability insurance, with a limit of at least
$2,000,000.00, naming Landlord and Landlord's Building managing agent as
additional insureds and further providing that such insurance shall not be
canceled without at least thirty (30) days' prior written notice to Landlord and
Landlord's agent. Tenant shall use it's best efforts to obtain a standard one
year guarantee by each of Tenant's prime contractors for the benefit of Landlord
and Tenant that all work performed and materials and equipment furnished by such
contractors will conform to the requirements of the plans and specifications as
to the kind, quality, function of the equipment and characteristics of material
and workmanship and will remain so for a period of at least one year from the
date that the work has been completed. In the event any defects in materials,
equipment or workmanship shall appear prior to the expiration of such period,
upon receiving written notice thereof from Landlord or Tenant, the contractor
will immediately correct and repair the same at the expense of such contractor.
Said guarantees shall be effective whether or not any part of the aforesaid work
has been subcontracted by the contractor. In the event either Landlord or Tenant
installs any supplemental Heating, Ventilating and Air Conditioning System
("HVAC System") in the Premises, either prior to the Commencement Date or during
the term of the Lease, Tenant hereby expressly understands and agrees that
Tenant shall be solely responsible for the maintenance and repair of the HVAC
System.
(b) Any consent by Landlord permitting Tenant to do any alteration work in
or about the Premises shall be and hereby is conditioned upon Tenant's work
being performed by workmen and mechanics working in harmony and not interfering
with labor employed by Landlord, Landlord's contractors or by any other tenants
or their contractors. To that end, said work shall be done by union labor having
the same union affiliations as other workmen performing work for other tenants
or Landlord and their contractors, if required by Landlord. If at any time any
of the workmen or mechanics performing any of Tenant's work shall not be of the
same union affiliation or shall be unable to work in harmony or shall interfere
with any labor employed by Landlord, other tenants or their respective mechanics
the contractors, then
-8-
<PAGE> 144
the permission granted by Landlord to Tenant permitting Tenant to do any work in
or about the Premises, may be withdrawn by Landlord upon forty-eight (48) hours'
written notice to Tenant.
(c) All alterations, installations, additions and improvements made and
installed by Tenant and/or at Tenant's expense, in the Premises which are of a
permanent nature and which cannot be removed without damage to the Premises or
Building shall become and be the property of Landlord, and shall remain upon and
be surrendered with the Premises as a part thereof at the end of the term of
this Lease, except that Landlord shall have the right to notify Tenant prior to
the Expiration Date and require Tenant to remove any of such alterations,
installations, additions and improvements and, in the event of service of such
notice, at Tenant's sole cost and expense, Tenant shall promptly remove the same
in accordance with such request and restore the Premises to its original
condition, ordinary wear and tear and casualty excepted. In the event Tenant
fails to remove any of such alterations, installations, additions and
improvements following receipt of Landlord's notice, Landlord may, at its
option, arrange for such removal in which event Tenant shall be obligated to
reimburse Landlord for the entire cost of the removal and this obligation shall
survive the Expiration Date of this Lease.
(d) Tenant shall have the right but not the obligation to remove all
movable furniture, equipment and trade fixtures installed by Tenant in the
Premises, except lighting fixtures and air-conditioning equipment, provided that
Tenant repairs any damage caused to the Premises by said removal. All of said
movable furniture, equipment and trade fixtures remaining in the Premises after
the Lease expiration date, or any sooner termination date due to any default of
Tenant, shall be deemed to be abandoned property and shall automatically become
the property of Landlord.
10. MECHANICS' LIENS Prior to Tenant performing any alterations, additions
or construction work in or about the Premises for which a lien could be filed
against the Premises or the Building, Tenant shall have its contractor execute a
Waiver of Mechanics' Lien, in form satisfactory to Landlord, and provide
Landlord with the original copy thereof.
-9-
<PAGE> 145
Notwithstanding the foregoing, if any mechanics' or other lien shall be filed
against the Premises or the Building purporting to be for labor or materials
furnished or to be furnished at the request of Tenant, then at its expense,
Tenant shall cause such lien to be removed of record by payment, bond or
otherwise, within thirty (30) days after the filing thereof. If Tenant shall
fail to cause such lien to be removed of record within such 30-day period,
Landlord may cause such lien to be removed of record by payment, bond or
otherwise, without investigation as to the validity thereof or as to any offsets
or defenses thereto, in which event Tenant shall reimburse Landlord in the
amount paid by Landlord, including expenses, within ten (10) days after
Landlord's billing therefor. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims, costs, damages, liabilities and expenses
(including attorney fees) which may be brought or imposed against or incurred by
Landlord by reason of any such lien or removal of record.
11. CONDITION OF PREMISES Tenant acknowledges and agrees that, except for
Landlord's work set forth in Article 45 of the Rider, there have been no
representations or warranties made by or on behalf of Landlord with respect to
the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises and the Building were in
satisfactory condition, order and repair at such time.
12. BUILDING SERVICES
(a) Landlord shall provide, within its Building standards, the following
services and facilities:
(1) Heating, ventilating and air conditioning, Monday to Friday from 8:00
A.M. to 6:00 P.M. and on Saturdays from 8:00 A.M. to 1:00 P.M.
(hereinafter "Business Hours"), except on the holidays set forth on
Exhibit C (hereinafter "Holidays"). Tenant agrees to cooperate fully with
Landlord and to abide by all the rules and regulations which Landlord may
reasonably prescribe for the proper functioning and protection of the
heating, ventilating and air conditioning systems.
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<PAGE> 146
(2) Electricity for normal office use, including normal office equipment,
in the Premises, during Business Hours (a demand capacity of 3-1/2 watts
per rentable square foot is deemed normal office use). In the event
Landlord reasonably determines that Tenant is exceeding normal office use
of electricity, Landlord may install a separate electric meter in the
Premises to register all electrical usage above normal office use. Tenant
agrees to pay Landlord for the cost of the installation of the meter and
for all electricity registered on said meter at the current general
service rate.
(3) Cleaning and maintenance of common areas in the Building, including
bathroom facilities;
(4) Continuous passenger elevator service during Business Hours, and
service via at least one car at all other times; freight elevator service
from 8:00 A.M. to 4:00 P.M., Monday through Friday, except Holidays;
(5) Janitorial services, including cleaning of Premises, in accordance
with Landlord's Building standard schedule, which is annexed hereto as
Exhibit D. Landlord shall not be required to furnish cleaning services to
any kitchens, lunchrooms or lavatories in the Premises; and
(6) Water for lavatory and drinking purposes.
Tenant shall reimburse Landlord for all additional cleaning expenses
incurred by Landlord, including but not limited to, garbage and trash removal
expense over and above the normal cleaning provided by Landlord, due to the
presence of a lunchroom or kitchen or food and beverage dispensing machines
within the Premises. No food or beverage dispensing machines shall be installed
by Tenant in the Premises without the prior written consent of Landlord.
(b) Landlord does not warrant that the services provided for in paragraph
12 (a) above shall be free from any slowdown, interruption or stoppage due to
the order of any governmental bodies and regulatory agencies, or caused by the
maintenance, repair, replacement or improvement of any of the equipment involved
in the furnishing of any such services, or caused by
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changes of services, alterations, strikes, lockouts, labor controversies, fuel
shortages, accidents, acts of God or the elements or any other cause beyond the
reasonable control of Landlord. No such slowdown, interruption or stoppage of
any such services shall ever be construed as an eviction, actual or
constructive, of Tenant, nor shall same cause any abatement of annual Base Rent
or additional rent or in any manner or for any purpose relieve Tenant from any
of its obligations under this Lease. Landlord agrees to use reasonable diligence
to resume the service upon any such slowdown, interruption or stoppage.
13. ASSIGNMENT AND SUBLETTING
(a) Except as expressly permitted pursuant to this Article, Tenant shall
not assign or hypothecate this Lease or any interest therein or sublet the
Premises or any part thereof, without the prior written consent of Landlord. Any
of the foregoing acts without Landlord's consent shall be voidable and shall, at
the option of Landlord, be an event of default under this Lease. Neither this
Lease nor any interest therein shall be assignable as to the interest of Tenant
by operation of law, without the prior written consent of Landlord. If Tenant is
a corporation, an unincorporation association or partnership, the transfer,
assignment or hypothecation of any stock or interest in such corporation,
association or partnership, in the aggregate in excess of twenty-five (25%)
percent, shall be deemed an assignment within the meaning and provisions of this
Article 13. Notwithstanding the foregoing, without the consent of Landlord but
upon notice to Landlord, a corporate Tenant may assign this Lease to its parent,
affiliate or subsidiary, provided that the assignee assumes, in full, the
obligations of Tenant under this Lease, and provided further that such
assignment shall not relieve Tenant of any of its obligations under this Lease.
(b) If at any time or from time to time during the term of this Lease,
Tenant desires to assign this Lease or sublet all or a portion of the Premises,
Tenant shall notify Landlord of such intent and submit to Landlord a copy of the
proposed assignment or sublease. Landlord shall have the option, exercisable by
notice given to Tenant within thirty (30) days after receipt of Tenant's
notice, of recapturing the Premises or portion thereof proposed to be sublet or
assigned and terminating the Lease with respect thereto, effective on a date
selected by Landlord which
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shall be no sooner than sixty (60) days and no later than one hundred twenty
(120) days after Landlord's receipt of Tenant's notice. If Landlord does not
exercise such option, Tenant may assign this Lease or sublet such space to any
third party, subject to the following terms and conditions:
(1) Tenant shall obtain the consent of Landlord, which consent shall not
be unreasonably withheld; Landlord shall base its decision upon exclusive
uses given to other Building tenants, the financial condition and
character of the proposed assignee or subtenant and the proposed use of
the Premises;
(2) Tenant may not sublease the Premises or any portion thereof or assign
this Lease to an existing tenant in the Building or the other 2 buildings
in the 3-building complex known as One, Two and Three Bala Plaza without
Landlord's written permission;
(3) No sublease or assignment shall be valid and no subtenant or assignee
shall take possession of the premises subleased or assigned until a fully
executed original of such sublease or assignment of this Lease has been
delivered to Landlord;
(4) No subtenant shall have a further right to sublet;
(5) No assignee shall have a further right to assign the Lease, except in
accordance with the provisions of this Article 13;
(6) In no event shall Tenant be entitled to have more than one subtenants
simultaneously in the Premises without Landlord's written permission;
(7) Tenant shall not (i) advertise or publicize in any way the
availability of the Premises or any portion thereof without prior notice
to and approval by Landlord, including the proposed rental, or (ii) list
the Premises or any portion thereof for subletting, whether through a
broker, agent representative, or otherwise, at a rental rate less than the
Base Rent and Additional Rent at which Landlord is
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then offering to lease other vacant space in the Building or the other 2
buildings in the Bala Cynwyd Complex; and
(8) Tenant may not assign this Lease or sublease all or any portion of the
Premises if the proposed assignee or subtenant is currently negotiating or
within the last 12 months has negotiated with Landlord for a lease of
space in the Building or the other 2 buildings in the 3-building complex
known as One, Two and Three Bala Plaza without Landlord's written
permission.
(c) Tenant shall pay Landlord, as additional rent any sums or other
economic consideration received by Tenant as a result of any subletting or
assignment (except payments received which are attributable to the amortization
of the cost of leasehold improvements made to the Premises by Tenant for the
subtenant or assignee, and other reasonable expenses incident to the subletting
or assignment, including standard leasing commissions), whether defined as
rentals under the sublease or otherwise, which exceed, in the aggregate, the
total sums which Tenant is obligated to pay Landlord under this Lease (prorated
to reflect obligations allocable to that portion of the Premises subject to a
sublease). If such subleasing or assignment has been made without the consent
of Landlord as provided herein, Landlord shall be entitled to all economic
consideration received by Tenant in accordance with the provisions of this
subparagraph 13 (c), but the receipt of such monies shall not be deemed to be a
waiver of the provisions of this Article 13 with respect to assignment and
subletting, or the acceptance of such assignee or subtenant as Tenant hereunder.
(d) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligations or alter the primary liability of Tenant
to pay the Base Rent and additional rent and to perform all other obligations to
be performed by Tenant under this Lease. The acceptance of rental by Landlord
from any other person shall not be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default
by any assignee of Tenant or any successor of Tenant in the performance of any
of the terms of this Lease, Landlord may
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proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor.
(e) In the event that the Premises or any part thereof have been sublet by
Tenant and Tenant is in default under this Lease pursuant to the provisions of
Article 24 hereof, then Landlord may collect rent from the subtenant and apply
the amount collected to the Base Rent and additional rent herein reserved but no
such collection shall be deemed a waiver of the provisions of this Article 13
with respect to subletting or the acceptance of such subtenant as Tenant
hereunder or a release of Tenant under the Lease.
14. ACCESS TO PREMISES Landlord, its employees and agents shall have the
right to enter the Premises at all reasonable times during Business Hours and at
anytime in case of an emergency for the purpose of examining or inspecting the
Premises, showing the Premises to prospective purchasers, mortgagees and
prospective tenants of the Building, and making such alterations, repairs,
improvements or additions to the Premises or to the Building as Landlord may
determine to be necessary or desirable. If representatives of Tenant shall not
be present to open and permit entry into the Premises at anytime when such entry
by Landlord is necessary or permitted hereunder, Landlord may enter by means of
a master key (or forcibly in the event of an emergency) without liability to
Tenant and without such entry constituting an eviction of Tenant or termination
of this Lease. Such entry into the Premises by Landlord shall not unreasonably
interfere with Tenant's use of the Premises.
15. REPAIRS
(a) At its cost (which cost shall be an Operation and Maintenance Cost
under Article 5 above), Landlord shall make all repairs necessary to maintain
the plumbing, heating, ventilating, air conditioning and electrical systems
(except light fixtures), windows, floors (except carpeting) and all other
structural portions of the Premises provided, however, that Landlord shall not
be obligated to make any of such repairs until Landlord has received written
notice from Tenant that such repair is needed. Landlord shall be responsible for
the maintenance and repair of all common areas and facilities in the Building
provided that Tenant shall be responsible for the repair of any damage to the
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Premises or the Building common areas and facilities caused by the negligence of
Tenant and its agents, servants, employees, invitees, licensees, subtenants, or
contractors.
(b) Except for Landlord's repairs under paragraph (a) above, at its sole
cost and expense, Tenant shall make all other reasonable repairs necessary to
maintain and keep the Premises and the fixtures therein in reasonably neat and
orderly condition. If Tenant refuses or neglects to make such reasonable
repairs, or fails to diligently prosecute the same to completion, after notice
from Landlord of the need therefor, Landlord may make such repairs at the
expense of Tenant and such expense, along with a fifteen (15%) percent service
charge, shall be collectible as additional rent.
At Tenant's expense, Landlord shall make all repairs to the light fixtures
in the Premises, including replacement bulbs and ballasts.
(c) Landlord shall not be liable for any interference with Tenant's
business arising from the making of any repairs in the Premises under paragraph
(a) above. Landlord shall interfere as little as reasonably practicable with the
conduct of Tenant's business. There shall be no abatement of Base Rent because
of such repairs.
16. INDEMNIFICATION OF LANDLORD AND LIABILITY INSURANCE
(a) Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all costs, expenses (including reasonable counsel fees),
liabilities, losses, damages, suits, actions, finest penalties, claims or
demands of any kind and asserted by or on behalf of any person or governmental
authority, arising out of or in any way connected with (i) any failure by Tenant
to perform any of the agreements, terms, covenants or conditions of this Lease
required to be performed by Tenant, (ii) any failure by Tenant to comply with
any statutes, ordinances, regulations or orders of any governmental authority,
or (iii) any accident, bodily injury (including death resulting therefrom), or
damage to or loss or theft of property, which shall occur in or about the
Premises occasioned wholly or in part by reason of any act or omission of
Tenant, or any of its agents, contractors, licensees, invitees, employees or
subtenants.
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(b) During the term of this Lease and any renewal thereof, Tenant shall
obtain and promptly pay all premiums for Comprehensive General Liability
Insurance with broad form extended coverage, including Contractual Liability,
covering claims for bodily injury (including death resulting therefrom) and loss
or damage to property occurring upon, in or about the Premises, with a minimum
combined single limit of at least $1,000,000.00. All such policies and renewals
thereof shall identify Landlord and Landlord's Building managing agent as
additional insureds. All policies of insurance shall provide (i) that no
material change or cancellation of said policies shall be made without at least
thirty (30) days' prior written notice to Landlord and Tenant, and (ii) that any
loss shall be payable notwithstanding any act or negligence of Tenant or
Landlord which might otherwise result in the forfeiture of said insurance. On or
before the commencement date of the term of this Lease, and thereafter not less
than fifteen (15) days prior to the expiration dates of said policy or policies,
Tenant shall furnish Landlord with renewal certificates of the policies of
insurance required under this paragraph. Tenant's insurance policies shall be
issued by insurance companies authorized to do business in the Commonwealth of
Pennsylvania with a financial rating of at least an A+ as rated in the most
recent edition of Best's Insurance Reports and have been in business for the
past five years. The aforesaid insurance limits may be reasonably increased by
Landlord from time to time during the term of this Lease with notice to Tenant.
(c) Tenant and Landlord, respectively, hereby release each other from any
and all liability or responsibility to the other for all claims of anyone
claiming by, through or under them by way of subrogation or otherwise for any
loss or damage to property owned by Landlord and Tenant respectively in the
Premises and covered by the Pennsylvania Standard Form of Fire Insurance Policy
with extended coverage endorsement, whether or not such insurance is maintained
by the other party.
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17. WAIVER OF CLAIMS Except in the event of the gross negligence of
Landlord and its servants and employees, Landlord and Landlord's agents,
servants, and employees shall not be liable for, and Tenant hereby releases and
relieves Landlord, its agents, servants, and employees from, all liability in
connection with any and all damage to or loss of property, or loss or
interruption of business occurring to Tenant, its agents, servants, employees,
invitees, licensees, and subtenants, in or about the Premises, from, without
limitation, (a) any fire or other casualty, accident, occurrence or condition in
or upon the Premises or the Building; (b) any defect in or failure of the
plumbing, sprinkler, electrical, heating, ventilating and air conditioning
systems and equipment, or any other systems and equipment in the Premises and
the Building; (c) any steam, gas, oil, water, rain or snow that may leak into or
flow from any part of the Premises or the Building; (d) the falling of any
fixture or any wall or ceiling materials; (e) broken glass; (f) latent or patent
defects; (g) any acts or omissions of the other tenants or occupants of the
Building; (h) any acts or omissions (excluding gross negligence) of Landlord,
its agents, servants and employees; and (i) theft, Act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, or any order of any
governmental authorities having jurisdiction over the Premises.
18. QUIET ENJOYMENT Landlord covenants and agrees with Tenant that upon
Tenant paying the Base Rent and additional rent and observing and performing all
the terms, covenants and conditions, on Tenant's part to be observed and
performed under this Lease, Tenant may peaceably and quietly enjoy the Premises
hereby demised, subject to the terms and conditions of this Lease and to the
ground leases, underlying leases and mortgages in Article 21 below.
19. NEGATIVE COVENANTS OF TENANT Tenant agrees that it will not do or
suffer to be done, any act, matter or thing objectionable to Landlord's fire
insurance companies whereby the fire insurance or any other insurance now in
force or hereafter placed on the Premises or any part thereof or on the Building
by Landlord shall become void or suspended, or whereby the same shall be rated
as a more hazardous risk than at the date when Tenant took possession of the
Premises. In case of a breach of this covenant, in addition to all other
remedies of Landlord hereunder, Tenant agrees to pay to Landlord, as additional
rent,
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any and all increases in premiums on insurance carried by Landlord on the
Premises or any part thereof or on the Building caused in any way by the
occupancy of Tenant.
20. FIRE OR OTHER CASUALTY
(a) If the Premises are damaged by fire or other casualty, the damages
shall be repaired by and at the expense of Landlord and restored to the
condition which existed immediately prior to such damage and the Base Rent and
additional rent shall be apportioned from the date of such fire or other
casualty until substantial completion of the repairs, according to the part of
the Premises which is usable by Tenant. Landlord agrees to repair such damage
within a reasonable period of time after receipt from Tenant of written notice
of such damage, subject to any delays caused by Acts of God, labor strikes or
other events beyond Landlord's control. Landlord shall not be liable for any
inconvenience to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof. Tenant hereby acknowledges that (i)
Landlord shall not be obligated to obtain insurance of any kind on Tenant's
furniture or furnishings, equipment, trade fixtures, alterations, improvements
and additions, (ii) it is Tenant's obligation to obtain such insurance at
Tenant's sole cost and expense, and (iii) Landlord shall not be obligated to
repair any damage thereto or replace the same.
(b) If, in the reasonable opinion of Landlord, the Premises are (i)
substantially damaged (i.e. more than 50%) by reason of such fire or other
casualty, or (ii) twenty (20%) per cent or more of the Premises is damaged by
said fire or other casualty and less than two (2) years would remain in the
current Lease term upon substantial completion of the repairs and restoration,
Landlord shall have the right, upon written notice to Tenant within thirty (30)
days after said occurrence, to elect not to repair and restore the Premises, and
in such event, this Lease and the tenancy hereby created shall cease as of the
date of said occurrence, the Base Rent and additional rent to be adjusted and
apportioned as of said date.
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(c) If, in the reasonable opinion of Landlord, the Building shall be
substantially damaged (i.e. more than 25%) by fire or other casualty, regardless
of whether or not the Premises were damaged by such occurrence, Landlord shall
have the right, upon written notice to Tenant within thirty (3O) days after said
occurrence, to terminate this Lease, and in such event, this Lease and the
tenancy hereby created shall cease and the Base Rent and additional rent shall
be adjusted and apportioned as of the date of said termination unless terminated
as of the date of said occurrence in accordance with paragraph 20 (b) above.
21. SUBORDINATION This Lease is and shall be subject and subordinate to
all ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or the real property of which the Premises are a part, and to
all renewals, modifications, consolidations, replacements and extensions of any
such underlying leases and mortgages. Tenant agrees that in the event any
person, firm, corporation or other entity acquires the right to possession of
the real property of which the Premises are a part including any mortgagee or
holder of any estate or interest having priority over this Lease, Tenant shall,
if requested by such person, firm, corporation or other entity, attain to and
become the tenant of such person, firm, corporation or other entity, upon the
same terms and conditions set forth in this Lease for the balance of the term of
this Lease. Notwithstanding the foregoing, any mortgagee may, at any time,
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution and delivery, and
in that event, such mortgagee shall have the same rights with respect to this
Lease as though it had been executed prior to the execution and delivery of the
mortgage. This clause shall be self-operative and no further instrument of
subordination or attornment shall be required by any ground or underlying lessor
or lessee or by any mortgagee, but in confirmation of such subordination and/or
attornment, Tenant shall execute any certificate that Landlord may reasonably
require acknowledging such subordination and/or attornment, within fifteen (15)
days after Landlord's request.
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22. CONDEMNATION
(a) If the entire Premises shall be condemned or taken permanently for any
public or quasi-public use or purpose, under any statute or by right of eminent
domain, or by private purchase in lieu thereof, then in that event, at the
option of either Landlord or Tenant exercised by notice to the other within
thirty (30) days after the date when possession is taken, the term of this Lease
shall cease and terminate as of the date when possession is taken pursuant to
such proceeding or purchase. The Base Rent and additional rent shall be adjusted
and apportioned as of the time of such termination and any Base Rent and
additional rent paid for a period thereafter shall be refunded. In the event a
material portion of the Building shall be so taken (even though the Premises may
not have been affected by the taking), Landlord may elect to terminate this
Lease as of the date when possession is taken pursuant to such proceeding or
purchase or Landlord may elect to repair and restore the portion not taken at
its own expense, and thereafter the Base Rent and additional rent shall be
reduced proportionately to reflect the portion of the Premises not taken.
(b) In the event of any total or partial taking of the Premises, Landlord
shall be entitled to receive the entire award in any such proceeding and Tenant
hereby assigns any and all right, title and interest of Tenant now or hereafter
arising in or to any such award or any part thereof and Tenant hereby waives all
rights against Landlord and the condemning authority, except that to the extent
permitted by applicable law, Tenant shall have the right to claim and prove in
any such proceeding and to receive any award which may be made to Tenant, if
any, specifically for loss of good will, movable trade fixtures, equipment and
moving expenses.
23. ESTOPPEL CERTIFICATE At any time and from time to time and within ten
(10) days after written request by Landlord, Tenant shall execute, acknowledge
and deliver to Landlord a statement in writing duly executed by Tenant
certifying that (i) this Lease is in full force and effect, without modification
or amendment (or, if there have been any modifications or amendments, that this
Lease is in full force and effect as modified and amended and setting forth the
dates of the modifications and amendments), (ii) the dated to which annual
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Base Rent and additional rent have been paid, and (iii) to the knowledge of
Tenant no default exists under this Lease or specifying each such default; it
being the intention and agreement of Landlord and Tenant that any such statement
by Tenant may be relied upon by a prospective purchaser or a prospective
mortgagee of the Building, or by others, in any matter affecting the Premises.
24. DEFAULT The occurrence of any of the following shall constitute a
default and breach of this Lease by Tenant:
(a) The failure of Tenant to take possession of the Premises within thirty
(30) days after the commencement date of this Lease;
(b) The vacation or abandonment of the Premises by Tenant (except pursuant
to a sublease or assignment approved by Landlord);
(c) A failure by Tenant to pay, when due, any installment of Base Rent,
additional rent or any other sum required to be paid by Tenant under this Lease,
where such failure continues for more than ten (10) days after Tenant has
received written notice of the delinquent payment from or on behalf of Landlord;
provided, however, Landlord shall not be required to give any such written
notice, and Tenant shall not be entitled to any such cure period, more than
twice in any twelve (12) month period;
(d) A failure by Tenant to observe and perform any other provision or
covenant of this Lease to be observed or performed by Tenant, where such failure
continues for thirty (30) days after Tenant receives written notice thereof from
or on behalf of Landlord provided, however, that if the nature of the default is
such that the same cannot reasonably be cured within such 30-day period, Tenant
shall not be deemed to be in default if Tenant shall commence the cure of the
default within such 30-day period and thereafter diligently prosecutes the same
to completion; and
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(e) The filing of a petition by or against Tenant for adjudication as a
bankrupt or insolvent or for its reorganization or for the appointment of a
receiver or trustee of Tenant's property pursuant to any local, state or federal
bankruptcy or insolvency law; or an assignment by Tenant for the benefit of
creditors; or the seizure of Tenant's property by any local, state or federal
governmental officer or agency or court-appointed official for the dissolution
or liquidation of Tenant or for the operating, either temporary or permanent, of
Tenant's business, provided, however, that if any such action is commenced
against Tenant the same shall not constitute a default if Tenant causes the same
to be dismissed within sixty (60) days after the filing thereof.
25. REMEDIES Upon the occurrence of any event of default set forth in
Article 24 above:
(a) Landlord may, upon prior written notice to Tenant, perform for the
account of Tenant the cure of any such default of Tenant and immediately recover
as additional rent any expenditures made and the amount of any obligations
incurred in connection therewith, plus fifteen (15%) per cent per annum interest
from the date of any such expenditures;
(b) Landlord may accelerate all Base Rent and additional rent due for the
balance of the term of this Lease and declare the same, along with all sums past
due, to be immediately due and payable. In determining the amount of any future
additional rent payments due Landlord as a result of increases in Operation and
Maintenance Costs, Landlord may make such determination based upon the amount of
Operation and Maintenance Costs additional rent paid by Tenant for the entire
Comparison Year immediately prior to such default;
(c) Landlord may immediately proceed to collect or bring action for such
Base Rent and additional rent for such part thereof as aforesaid, as well as for
liquidated damages provided for hereinafter, as being rent in arrears, or may
enter judgment therefor as herein elsewhere provided for in case of rent in
arrears, or may file a Proof of Claim in any bankruptcy or insolvency proceeding
for such Base Rent and additional rent, or Landlord may institute any other
proceedings, whether similar to the foregoing or not, to enforce payment
thereof;
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(d) Landlord, may re-enter and repossess the Premises breaking open locked
doors, if necessary, and may use as much force as necessary to effect such
entrance without being liable to any action or prosecution for such entry or the
manner thereof, and Landlord shall not be liable for the loss of any property in
the Premises. Landlord may remove all of Tenant's goods and property from the
Premises. Landlord shall have no liability for any damage to such goods and
property and Landlord shall not be responsible for the storage or protection of
the same upon removal;
(e) Upon prior notice and in accordance with Pennsylvania law, Landlord
may re-enter and repossess the Premises or any part thereof and attempt to relet
all or any part of the Premises for and upon such terms and to such persons,
firms or corporations and for such period or periods as Landlord, in its sole
discretion, shall determine, including a term beyond the termination of this
Lease. Landlord shall consider any tenant offered by Tenant in connection with
such reletting. For the purpose of such reletting, Landlord may decorate or make
reasonable repairs, changes, alterations or additions in or to the Premises to
the extent deemed by Landlord desirable or convenient and the cost of such
repairs, changes, alterations or additions shall be charged to and be payable by
Tenant as additional rent hereunder, as well as any reasonable brokerage and
legal fees expended by Landlord. Any sums collected by Landlord from any new
tenant obtained on account of Tenant shall be credited against the balance of
the Base Rent and additional rent due hereunder as aforesaid. Tenant shall pay
to Landlord monthly, on the days when the Base Rent and additional rent would
have been payable under this Lease, the amount due hereunder less the net amount
obtained by Landlord from such new tenant;
(f) At its option, Landlord may serve notice upon Tenant that this Lease
and the then unexpired term hereof shall cease and expire and become absolutely
void on the date specified in such notice, to be not less than ten (10) days
after the date of such notice, without any right on the part of Tenant to save
the forfeiture by payment of any sum due or by the performance of any term,
provision, covenant, agreement or condition broken; and, thereupon and at the
expiration of the time limit in such notice, this Lease and the term hereof
granted, as well as the entire right, title and interest of Tenant hereunder,
shall wholly cease
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and expire and become void in the same manner and with the same force and effect
except as to Tenant's liability) as if the date fixed in such notice were the
expiration date of the term of this Lease. Thereupon, Tenant shall immediately
quit and surrender the Premises to Landlord and Landlord may enter into and
repossess the Premises by summary proceedings, detainer, ejectment or otherwise
and remove all occupants thereof and, at Landlord's option, any property
therein, without being liable to indictment, prosecution or damages therefor;
(g) In the event of termination of this Lease pursuant to the provisions
of paragraph 25 (f) above, Tenant shall pay to Landlord all Base Rent,
additional rent and other charges payable hereunder due and unpaid to the date
of termination, together with liquidated damages in an amount equal to
twenty-five percent (25%) of the balance of the Base Rent, additional rent and
other charges required to be paid under this Lease from the date of said
termination to the expiration date of the term of this Lease, as if the same had
not been terminated, the said Base Rent and additional rent for the balance of
the term of this Lease and other charges to be computed in the same manner as
provided in paragraph 25 (b) above. In the event any judgment has been entered
against Tenant for any amount in excess of the total amount required to be paid
by Tenant to Landlord hereunder, then the damages assessed under said judgment
shall be reassessed and a credit granted to the extent of such excess. Landlord
and Tenant acknowledge that the damages to which Landlord is entitled in the
event of a breach of this Lease and termination by Landlord are not easily
computed and are subject to many variable factors. Therefore, Landlord and
Tenant have agreed to the liquidated damages as herein provided in order to
avoid extended litigation in the event of default by Tenant and termination of
this Lease;
In the event Landlord exercises the remedy under this paragraph and
Tenant pays Landlord the entire amount of the liquidated damages, Landlord shall
be deemed to have made an election of remedies and except for regaining
possession the Premises, Landlord shall not be entitled to exercise any other
remedy under this Article 25.
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(h) In the event of a breach or threatened breach by Tenant of any of the
agreements, conditions, covenants or terms of this Lease, Landlord shall have
the right to seek an injunction to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given to Landlord in
this Lease are distinct, separate and cumulative remedies, and no one of them,
whether or not exercised by Landlord, shall be deemed to be in exclusion of any
of the others;
(i) In the event of any default, Tenant, in consideration of the execution
of this Lease by Landlord and of the covenants and agreements on the part of
Landlord herein contained, and fully comprehending the relinquishment of certain
rights including rights of pre-judgment notice and hearing, hereby expressly
authorizes and empowers (which power is coupled with an interest) any
prothonotary or attorney of any Court of Record to accept service of process
for, to appear for, and to confess judgment against Tenant (i) to recover
possession from time to time of the Premises (and Tenant agrees that upon the
entry of each judgment for said possession a Writ of Possession or other
appropriate process may issue forthwith) and/or (ii) to enforce payment from
time to time for Base Rent, additional rent, or other charges or expenses
payable under this Lease, including, at Landlord's option, the Base Rent for the
entire unexpired balance of the term of this Lease, computed as aforesaid, and
any other charges, payments, costs and expenses reserved as rent or agreed to be
paid by Tenant, as well as liquidated damages, and for interest and costs
together with an attorney's commission of five (5%) per cent thereof;
(j) Tenant further hereby expressly authorizes and empowers (which power
is coupled with an interest) Landlord, upon the occurrence of a default
hereunder and so long as the same is continuing, to enter upon the Premises,
distrain upon and remove therefrom all inventory, equipment, machinery, trade
fixtures, and personal property of whatsoever kind or nature, whether owned by
Tenant or others, and to proceed, without judicial decree, writ of execution or
assistance of constables, to conduct a private sale, by auction or sealed bid,
of such personal property, at which sale Landlord may bid without restriction.
Tenant hereby waives the benefit of all laws, whether now in
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<PAGE> 162
force of hereafter enacted, exempting any personal property of the Premises from
safe or levy, whether execution thereon is had by order of any court or through
private sale as herein authorized. Tenant waives the right to issue a Writ of
Replevin under the Pennsylvania Rules of Civil Procedure, under the laws of the
Commonwealth of Pennsylvania or under any law previously enacted and now in
force or which hereinafter may be enacted for the recovery of any articles or
any nature whatsoever seized under a distress for rent, or levy upon an
execution for rent, liquidated damages or otherwise;
Landlord hereby agrees that so long as Manugistics, Inc. is Tenant
under this Lease, it will not exercise the remedy under this paragraph (j); and
(k) In any action by confession for ejectment, for rent due and owing or
for distraint, Landlord shall first cause to be filed in such action an
affidavit made by it or someone acting for it setting forth the facts necessary
to authorize the entry of judgment, of which facts such affidavit shall be
conclusive evidence, and if a true copy of this Lease be filed in such 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. The authority
to confess judgment against Tenant hereunder shall not be exhausted by one (1)
exercise thereof, but judgment may be confessed as provided herein from time to
time as often as any default occurs under this Lease, and such authority may be
exercised as well after the expiration of the term of this Lease and/or during
or after the expiration of any extended or renewal term; and
Landlord hereby agrees that so long as Manugistics, Inc. is Tenant
under this Lease, it will not exercise the remedy under this paragraph (k); and
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<PAGE> 163
(1) Tenant shall pay upon demand all of Landlord's costs, charges and
expenses, including the fees and out-of-pocket expenses of legal counsel, agents
and others retained by Landlord incurred in enforcing Tenant's obligations
hereunder or incurred by Landlord in any litigation, negotiation or transaction
in which Tenant causes Landlord, without Landlord's fault, to become involved or
concerned, together with interest at 15% per annum from the date incurred by
Landlord to the date of payment by Tenant.
26. REQUIREMENT OF STRICT PERFORMANCE The failure or delay on the part of
Landlord to enforce or exercise at any time any of the provisions, rights or
remedies in the Lease shall in no way be construed to be a waiver thereof, or in
any way to affect the validity of this Lease or any part thereof, or the right
of Landlord to thereafter enforce each and every such provision, right or
remedy. No waiver of any breach of this Lease shall be held to be a waiver of
any other or subsequent breach. The receipt by Landlord of Base Rent or
additional rent at a time when the Base Rent or additional rent is in default
under this Lease shall not be construed as a waiver of such default. The receipt
by Landlord of a lesser amount than the Base Rent or additional rent due shall
not be construed to be other than a payment on account of the Base Rent or
additional rent then due, and any statement on Tenant's check or any letter
accompanying Tenant's check to the contrary shall not be deemed an accord and
satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the Base Rent or additional rent due
or to pursue any other remedies provided in this Lease. No act or thing done by
Landlord or Landlord's agents or employees during the term of this Lease shall
be deemed an acceptance of a surrender of the Premises and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
27. RELOCATION OF TENANT At its sole expense, upon at least ninety (90)
days' prior written notice to Tenant, Landlord may require Tenant to move from
the Premises to another suite in the Building of comparable size and decor in
order to permit Landlord to consolidate the Premises with other adjoining space
leased or to be leased to an existing or prospective tenant. In the event of any
such relocation, Landlord will pay (i) all the expenses of preparing and
decorating the new premises so that
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<PAGE> 164
they will be substantially similar to the Premises, (ii) the expense of moving
Tenant's office furnishings, furniture and equipment to the new premises, and
(iii) the expense of printing and sending announcements, postage for
announcements, and printing new stationary provided that Tenant's suite number
is indicated on the stationary, plus voice and data communication networks.
Occupancy of the new premises shall be under and pursuant to the terms of this
Lease. Tenant will be relocated at such time and in such manner as to minimize
interference with the conduct of Tenant's business.
28. SURRENDER OF PREMISES; HOLDING OVER
(a) The Lease shall terminate and Tenant shall deliver up and surrender
possession of the Premises to Landlord on the last day of the term hereof, and
Tenant hereby waives the right to any notice of termination or notice to quit.
Upon the expiration or sooner termination of this Lease, Tenant covenants to
deliver up and surrender possession of the Premises in the same condition in
which Tenant has agreed to maintain and keep the same during the term of this
Lease in accordance with the provisions of this Lease, normal wear and tear
excepted.
(b) Upon the failure of Tenant to surrender possession of the Premises
to Landlord upon the expiration or sooner termination of this Lease, Tenant
shall pay to Landlord, as liquidated damages, an amount equal to twice the then
current Base Rent and additional rent required to be paid by Tenant under this
Lease, applied to any period in which Tenant shall remain in possession after
the expiration or sooner termination of this Lease. Acceptance by Landlord of
Base Rent or additional rent after such expiration or earlier termination shall
not constitute a consent to a holdover hereunder or result in a renewal. The
foregoing provisions of this paragraph are in addition to and do not affect
Landlord's right of reentry or any other rights of Landlord hereunder or
otherwise provided by law.
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<PAGE> 165
29. DELAY IN POSSESSION
(a) In the event that the Premises are not ready for Tenant's occupancy at
the Commencement Date of this Lease, because Landlord has not substantially
completed the tenant improvement work described in Article 45 of the Rider
(unless such tenant improvement work is being done by Tenant or Tenant's
contractor, in which case there shall be no delay in the Commencement Date and
no suspension or proration of Base Rent or additional rent), or because of the
failure or refusal of the present occupant of the Premises to vacate and
surrender up the same, or because of any restrictions, limitations or delays
caused by Government regulations or Governmental agencies, this Lease and the
term hereof shall not be affected thereby, nor shall Tenant be entitled to make
any claim for or receive any damages whatsoever from Landlord, but the entire
term of this Lease shall not commence and the Base Rent, additional rent and
other sums herein provided to be paid by Tenant shall not become due until the
date the Premises are substantially completed by Landlord and ready for Tenant's
occupancy or the date possession of the Premises is delivered to Tenant, as the
case may be.
(b) In the event of a delay in the Commencement Date of this Lease,
Landlord and Tenant agree to execute a confirmation of lease term agreement,
substantially in the form of Exhibit E hereto, to confirm the Commencement Date
and Expiration Date of the Lease.
30. COMPLIANCE WITH LAWS AND ORDINANCES At its sole cost and expense,
Tenant shall promptly fulfill and comply with all laws, ordinances, regulations
and requirements of the City, County, State and Federal Governments and any and
all departments thereof having jurisdiction over the Building, and of the
National Board of Fire Underwriters or any other similar body now or hereafter
constituted, affecting Tenant's occupancy of the Premises or the business
conducted therein. Any obligations of Tenant as an employer to modify or alter
any part of the Premises for the benefit of Tenant's employees under any law,
rule or regulation, including without limitation the Americans with Disabilities
Act of 1990, shall be the sole responsibility and at the sole cost of Tenant.
-30-
<PAGE> 166
31. NOTICES All notices or demands under this Lease shall be in writing
and shall be given or served by either Landlord or Tenant to or upon the other,
either personally or by Registered or Certified Mail, Return Receipt Requested,
postage prepaid, and addressed as follows:
TO LANDLORD: The Prudential Insurance Company
of America
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, NJ 07054
Attention: Law Department
WITH A COPY TO: Premisys Real Estate Services, Inc.
One Bala Plaza - Suite E501
Bala Cynwyd, Pennsylvania 19004
TO TENANT: Manugistics, Inc.
2115 East Jefferson Street
Rockville, Maryland 20852
Attn: Legal Department
All notices and demands shall be deemed given or served upon the date of
receipt thereof by Landlord or Tenant, as the case may be. Either Landlord or
Tenant may change its address to which notices and demands shall be delivered or
mailed by giving written notice of such change to the other as herein provided.
32. WARRANTY OF TENANT Tenant warrants to Landlord that Tenant has dealt
and negotiated solely and only with Premisys Real Estate Services, Inc. for this
Lease and with no other broker, firm, company or person.
For good and valuable consideration, Tenant hereby agrees to indemnify,
defend and hold Landlord harmless from and against any and all claims, suits,
proceedings, damages, obligations, liabilities, counsel fees, costs, losses,
expenses, orders and judgments imposed upon, incurred by or asserted against
Landlord by reason of the falsity or error of Tenant's warranty.
-31-
<PAGE> 167
33. FORCE MAJEURE Landlord shall be excused for the period of any delay in
the performance of any of its obligations under this Lease, when prevented from
so doing by any cause or causes beyond Landlord's control, which shall include,
without limitation, all labor strikes and disputes, stoppage or interruption of
utility services to the Building, inability to obtain any materials or services,
civil commotion, or acts of God.
34. LANDLORD'S OBLIGATIONS Landlord's obligations hereunder shall be
binding upon Landlord only for the period of time that Landlord is in ownership
of the Building, and upon termination of that ownership, except as to any
obligations which have then matured, Tenant shall look solely to Landlord's
successor in interest in the Building for the satisfaction of each and every
obligation of Landlord hereunder. If any security deposit has been made by
Tenant, Landlord shall transfer such security deposit to the purchaser and
thereupon Landlord shall be discharged from any further liability with respect
thereto.
35. LANDLORD'S LIABILITY Landlord shall have no personal liability under
any of the terms, conditions or covenants of this Lease and Tenant shall look
solely to the equity of Landlord in the Building for the satisfaction of any
claim, remedy or cause of action accruing to Tenant as a result of the breach of
any provision of this Lease by Landlord.
36. SUCCESSORS The respective rights and obligations of Landlord and
Tenant under this Lease shall bind and shall inure to the benefit of Landlord
and Tenant and their legal representatives, heirs, successors and assigns,
provided, however, that no rights shall inure to the benefit of any successor of
Tenant unless Landlord's written consent to the transfer to such successor has
first been obtained as provided in Article 13 above.
37. GOVERNING LAW This Lease shall be construed, governed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
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<PAGE> 168
38. SEVERABILITY If any provisions of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions of this Lease shall in
no way be affected or impaired and such remaining provisions shall continue in
full force and effect.
39. CAPTIONS Any headings preceding the text of the several Articles of
this Lease are inserted solely for convenience of reference and shall not
constitute a part of this Lease or affect its meaning, construction or effect.
40. GENDER As used in this Lease, the word "person" shall mean and
include, where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the singular for
the plural, where appropriate; and words of any gender shall mean to include any
other gender.
41. EXECUTION This Lease shall become effective when it has been signed by
a duly authorized officer or representative of Landlord and Tenant and delivered
to the other party.
42. EXHIBITS AND RIDER Attached to this Lease and made part hereof are
Exhibits A, B, C, D and E and Rider Article 45 inclusive.
43. ENTIRE AGREEMENT This Lease, including the Exhibits and the Rider,
contains all the agreements, conditions, understandings, representations and
warranties made between Landlord and Tenant with respect to the subject matter
hereof, and may not be modified orally or in any manner other than by an
agreement in writing signed by and delivered to both Landlord and Tenant.
44. CORPORATE AUTHORITY If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with the duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
-33-
<PAGE> 169
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease the
day and year first above written.
(LANDLORD)
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: Premisys Real Estate Services,
Inc., as Agent
By: /s/ John Goodwin
-------------------------------------
John Goodwin,
Regional Vice President
(TENANT)
WITNESS OR ATTEST: Manugistics, Inc.
By: /s/ Helen Kastasia By: /s/ William M. Gibson
-------------------------------- -------------------------------------
William M. Gibson
President & CEO
(Seal)
If Tenant is a corporation, Lease must be executed by the President or the Vice
President as well as the Secretary and properly sealed. If Tenant is a
partnership, all partners must execute the Lease and if Tenant is an individual
or a partnership, all signatures must be witnessed.
-34-
<PAGE> 170
Rider Annexed to and Made Part of the Lease
Dated November 14, 1996
Between The Prudential Insurance Company of America, as
Landlord, and Manugistics, Inc., as Tenant
45. LANDLORD'S WORK AND CONTRIBUTIONS At Landlord's expense up to a
maximum of $56,240.00, Landlord agrees to construct the Premises in Landlord's
Building Standard manner, in accordance with Tenant's interior design drawings
and Final Plans and Specifications which shall be prepared by Space Design
Incorporated and at Landlord's expense (as part of Landlord's $56,240.00
allowance) and shall be submitted to Landlord on or before September 15, 1996,
time being of the essence. Landlord's contribution of up to a maximum of
$56,240.00 shall cover all design and construction costs and fees, including a
1.25% construction management fee payable to Premisys Real Estate Services,
Inc., Landlord's Property Manager, labor and materials, construction permits and
reasonable overhead (collectively "Total Cost"). In the event the Total Cost of
the design and construction of the Premises exceeds $56,240.00, then Tenant
shall pay Landlord the entire amount of the excess, in lump sum, within thirty
(30) days after Landlord's billing therefor following substantial completion of
Landlord's work.
In the event Tenant vacates the Premises and there is a default in the
payment of Base Rent under the Lease, or in the event Landlord obtains
possession of the Premises or terminates the Lease by reason of a default by
Tenant under the Lease, Tenant shall pay to Landlord, upon demand, as additional
rent hereunder, the full unamortized amounts (based on an amortization period of
five (5) years eight (8) months and including interest at 11.00% per annum on
the outstanding principal balance) of Landlord's contribution and payment of up
to $56,240.00 in construction costs.
-35-
<PAGE> 171
EXHIBIT "B"
RULES AND REGULATIONS
DEFINITIONS
1. Wherever in these Rules and Regulations the word "Tenant" is used, it
shall be deemed to apply to and include Tenant and his agents, employees,
invitees, licensees, subtenants and contractors, and to be of such number
and gender as the circumstances require. The word "Landlord" shall include
the employees and agents of Landlord.
CONSTRUCTION
2. The streets, parking areas, sidewalks, entrances, lobbies, halls,
passageways, elevators, stairways and other common areas provided by
Landlord shall not be obstructed by Tenant, or used for any purpose other
than for ingress and egress.
WASHROOMS
3. Toilet rooms, water-closets and other water apparatus shall not be used
for any purposes other than those for which they were constructed.
INSURANCE REGULATIONS
4. Tenant shall not do anything in the Premises, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of
fire or the rate of fire insurance, or which will conflict with the
regulations of the Fire Department or the fire laws, or with any insurance
policy on the Building or any part thereof, or with any present or future
law, ordinance, rule or regulation affecting the occupancy and use of the
Premises or Building, enacted or promulgated by any public authority or by
the Board of Fire Underwriters.
-1-
<PAGE> 172
GENERAL PROHIBITIONS
5. In order to insure proper use and care of the Premises, Tenant shall not:
a) Keep animals or birds in the Premises.
b) Use the Premises for sleeping purposes.
c) Allow any sign, advertisement or notice to be affixed to the
Building, inside or outside, or viewed through any window from
outside the Building and/or the Premises, without Landlord's written
consent. Signs on interior doors will be painted only by a
contractor designated by Landlord, the cost of the painting to be
paid by Tenant.
d) Make improper or loud noises or disturbances of any kind; sing, play
or operate any musical instrument, radio or television without the
prior written consent of Landlord, or otherwise do anything to
disturb other Building tenants or tend to injure the reputation of
the Building.
e) Mark or defile elevators, water-closets, toilet rooms, walls,
windows, doors or any other part of the Building.
f) Place anything on the outside of the Building, including roof
setbacks, window ledges and other projections; or drop anything from
the windows, stairways, or parapets; or place trash or other matter
in the halls, stairways, elevators or light wells of the Building.
g) Operate any machinery or equipment in the Premises other than normal
office equipment.
h) Interfere with the Building's heating, ventilating and air
conditioning system.
i) Allow anyone but Landlord's employees or contractors to clean the
Premises.
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<PAGE> 173
j) Use any electric heating device or equipment without the prior
written consent of Landlord.
k) Install call boxes, or any kind of wire in or on the Building
without Landlord's permission and direction.
1) Manufacture any product or commodity, or prepare or dispense food,
tobacco, drugs, flowers, or other commodities or articles without
the prior written consent of Landlord.
m) Secure duplicate keys for the Premises or toilets, except from
Landlord.
n) Place any weights in any portion of the Premises or the Building
beyond the safe carrying capacity of the structure.
o) Enter any mechanical or electrical areas, telephone closets, loading
areas, roof or Building storage areas without the prior written
consent of Landlord.
p) Place door mats in public corridors without the prior written
consent of Landlord.
PUBLICITY
6. Tenant shall not use the name of the Building in any way in connection
with his business except as the address thereof.
MOVEMENT OF EQUIPMENT
7. Landlord reserves the right to designate the time when and the method
whereby freight, small office equipment, furniture, safes and other like
articles may be brought into, moved or removed from the Building or the
Premises, and to designate the location for temporary disposition of such
items. In no event shall any of the foregoing items be taken from Tenant's
Premises for the purpose of removing same from the Building without the
express written consent of both Landlord and Tenant.
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<PAGE> 174
REGULATION CHANGES
8. Landlord shall have the right to make such other and further reasonable
rules and regulations as in the judgment of Landlord, may from time to
time be reasonably necessary for the safety, appearance, care, and
cleanliness of the Building and for the preservation of good order
therein. Landlord agrees to enforce such other rules and regulations
uniformly against all tenants in the Building. Landlord shall not be
responsible to Tenant for any violation of rules and regulations by other
Building tenants.
PUBLIC ENTRANCE
9. Landlord reserves the right to exclude the general public from the
Building upon such days and at such hours as in Landlord's judgment will
be for the best interest of the Building and its tenants. Persons entering
the Building after 6:00 P.M. on business days and at all times on weekends
and holidays must sign the register maintained for that purpose in the
Building Lobby.
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<PAGE> 175
EXHIBIT C
HOLIDAYS
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day After Thanksgiving*
Christmas Day
* HVAC available on this day
-1-
<PAGE> 176
EXHIBIT D
STANDARD CLEANING SPECIFICATIONS - TENANT AREAS
DAILY
Clean common area bathrooms, including sinks, toilets, floors and mirrors.
Fully vacuum all carpets from wall to wall.
Using approved spotter, spot clean carpet area.
Empty all trash receptacles and replace liners as necessary.
Remove all collected trash to designated area.
Empty and damp wipe ashtrays.
Dust all furniture, fixtures, equipment and accessories.
Spot clean all walls, light switches and doors.
Spot clean all partition glass.
Clean and sanitize all sinks and wipe dry.
Dust mop all hard surface floors with treated dust mop.
Mop all stains and spills, especially coffee and drink spills.
Detail clean threshold plates removing all visible soil.
WEEKLY
Vacuum all fabric office furniture, including chairs and couches.
D-1
<PAGE> 177
Using a high speed floor machine, spray buff all hard surface areas.
Clean all partition glass.
Dust wood paneled walls.
MQNTHLY
Dust all surfaces above normal reach, including sills, ledges, moldings,
shelves, door frames, pictures and vents.
Dust all chair and table legs and rugs, baseboards, ledges, moldings,
and other low reach areas.
Dust all venetian blinds.
QUARTERLY
Spot clean all horizontal and vertical surfaces removing fingerprints,
smudges and stains.
Vacuum draperies.
Strip hard surface floor and recoat with three coats of floor polish.
EIGHT TIMES PER YEAR
Machine scrub hard surface floor and apply one coat of polish, allow to
dry, then buff.
TWO TIMES PER YEAR
Clean building windows both inside and outside.
D-2
<PAGE> 178
EXHIBIT E
CONFIRMATION OF LEASE TERM AGREEMENT
AGREEMENT, made as of the day of , 1996, between THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation, having an office at
Three Gateway Center, 13th Floor, 100 Mulberry Street, Newark, New Jersey
07102-4077 ("Landlord") and Manugistics, Inc.
, a Delaware corporation , having its
principal offices at 2115 East Jefferson Street, Rockville, MD, 20852
("Tenant").
WITNESSETH
WHEREAS:
A. Landlord and Tenant entered into a written lease dated as of , 1996
("Lease"), covering a portion of the Floor in the building known as Bala
Plaza and located in Bala Cynwyd, Pennsylvania.
B. Landlord and Tenant desire to amend the Lease to confirm the
commencement and expiration dates of the Lease term.
NOW, THEREFORE, in consideration of the following mutual terms and
conditions, the Lease is hereby amended as follows:
FIRST: Landlord and Tenant hereby acknowledge and confirm that:
(i) The Lease term commenced on , 1995 and
will expire at midnight on , ;
(ii) Tenant's annual and monthly Base Rent payments shall be as
follows:
ANNUAL MONTHLY BASE RENT RATE
PERIOD BASE RENT BASE RENT PER SQUARE FOOT
- ------ --------- --------- ---------------
<PAGE> 179
[(iii) The notice, commencement and expiration dates of Tenant's
option to renew under Article of
the Lease are _______________________, ____________________
and ___________________________, respectively.]
SECOND: Except for the provisions of this CONFIRMATION OF LEASE TERM
AGREEMENT, all the terms, covenants and conditions contained in the Lease shall
remain in full force and effect.
IN WITNESS WHEREOF, this AGREEMENT has been executed as of the day and
year first above written.
LANDLORD: THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: Premisys Real Estate Services, Inc., as
Agent
By:
---------------------------------------------
, Vice President
Manugistics, Inc.:
TENANT: /s/ William M. Gibsen
------------------------------------------------
William M. Gibsen
President & CEO
By:
---------------------------------------------
<PAGE> 180
EXHIBIT "B"
ONE BALA PLAZA DEMISED AREA PLAN
SECOND FLOOR
[GRAPHIC OMITTED]
<PAGE> 1
Philadelphia Consolidated Holding Corp. and Subsidiaries
Computation of Earnings Per Share
(Dollars and Share Data in Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
As of and For the Years Ended December 31,
------------------------------------------------------
1998 1997 1996(1)
------- ------- -------
<S> <C> <C> <C>
Weighted-Average Common Shares Outstanding 12,249 12,194 11,880
Weighted-Average Share Equivalents Outstanding 2,680 2,736 2,373
------- ------- -------
Weighted-Average Shares and Share Equivalents Outstanding
14,929 14,930 14,253
======= ======= =======
Net Income $20,028 $16,870 $13,374
======= ======= =======
Basic Earnings Per Share $1.63 $1.38 $1.13
======= ======= =======
Diluted Earnings Per Share $1.34 $1.13 $0.94
======= ======= =======
</TABLE>
(1) 1996 share information restated to reflect a two for one split of the
Company's common stock distributed in November 1997.
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Philadelphia Consolidated Holding Corp. on Forms S-8 (File Nos. 33-96604,
333-29643 and 333-29647) of our reports dated February 5, 1999 on our audits of
the consolidated financial statements and financial statement schedules of
Philadelphia Consolidated Holding Corp. and Subsidiaries as of December 31, 1998
and 1997 and for each of the three years in the period ended December 31, 1998,
which report is included in this Annual Report on Form 10-K.
/s/ PriceWaterhouseCoopers LLP
- ------------------------------
2400 Eleven Penn Center
Philadelphia, Pennsylvania
March 26, 1999
<TABLE> <S> <C>
<ARTICLE> 7
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<DEBT-HELD-FOR-SALE> 283,718
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 72,768
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 356,486
<CASH> 31,573
<RECOVER-REINSURE> 999
<DEFERRED-ACQUISITION> 16,853
<TOTAL-ASSETS> 469,198
<POLICY-LOSSES> 151,150
<UNEARNED-PREMIUMS> 64,787
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 0
0
0
<COMMON> 44,796
<OTHER-SE> 92,687
<TOTAL-LIABILITY-AND-EQUITY> 469,198
122,687
<INVESTMENT-INCOME> 15,448
<INVESTMENT-GAINS> 474
<OTHER-INCOME> 219
<BENEFITS> 66,374
<UNDERWRITING-AMORTIZATION> 38,422
<UNDERWRITING-OTHER> 2,212
<INCOME-PRETAX> 27,050
<INCOME-TAX> 7,022
<INCOME-CONTINUING> 20,028
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 20,028
<EPS-PRIMARY> 1.63
<EPS-DILUTED> 1.34
<RESERVE-OPEN> 108,928<F1>
<PROVISION-CURRENT> 69,544
<PROVISION-PRIOR> (3,170)
<PAYMENTS-CURRENT> 13,402
<PAYMENTS-PRIOR> 26,870
<RESERVE-CLOSE> 135,030<F1>
<CUMULATIVE-DEFICIENCY> 0
<FN>
<F1>UNPAID LOSS AND LOSS ADJUSTMENT EXPENSES DIFFER FROM THE AMOUNTS REPORTED IN
THE CONSOLIDATED FINANCIAL STATEMENTS BECAUSE OF THE INCLUSION HEREIN OF
REINSURANCE RECEIVABLES OF $16,120 AND $13,502 AT DECEMBER 31, 1998 AND 1997,
RESPECTIVELY
</FN>
</TABLE>
<PAGE> 1
REPORT OF INDEPENDENT ACCOUNTANTS
Our report on the consolidated financial statements of Philadelphia Consolidated
Holding Corp. and Subsidiaries is included on page 26 of this Form 10-K. In
connection with our audits of such financial statements, we have also audited
the related financial statement schedules listed in the index on page 25 of this
Form 10-K.
In our opinion, the financial statement schedules referred to above, when
considered in relation to the basic consolidated financial statements taken as a
whole, present fairly, in all material respects, the information required to be
included therein.
/s/ PriceWaterhouseCoopers LLP
- ------------------------------
2400 Eleven Penn Center
Philadelphia, Pennsylvania
February 5, 1999
