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Traffic.com, Inc. – IPO: ‘S-1’ on 8/30/05 – EX-10.3

On:  Tuesday, 8/30/05, at 9:49pm ET   ·   As of:  8/31/05   ·   Accession #:  1047469-5-22277   ·   File #:  333-127973

Previous ‘S-1’:  None   ·   Next:  ‘S-1/A’ on 9/21/05   ·   Latest:  ‘S-1/A’ on 1/24/06

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 8/31/05  Traffic.com, Inc.                 S-1                   46:5.8M                                   Merrill Corp/New/FA

Initial Public Offering (IPO):  Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML   1.11M 
 2: EX-3.3      Articles of Incorporation/Organization or By-Laws   HTML     96K 
11: EX-4.10     Instrument Defining the Rights of Security Holders  HTML     52K 
12: EX-4.11     Instrument Defining the Rights of Security Holders  HTML     53K 
13: EX-4.12     Instrument Defining the Rights of Security Holders  HTML     53K 
14: EX-4.13     Instrument Defining the Rights of Security Holders  HTML     53K 
15: EX-4.14     Instrument Defining the Rights of Security Holders  HTML     50K 
16: EX-4.15     Instrument Defining the Rights of Security Holders  HTML     53K 
17: EX-4.16     Instrument Defining the Rights of Security Holders  HTML     53K 
18: EX-4.17     Instrument Defining the Rights of Security Holders  HTML     52K 
19: EX-4.18     Instrument Defining the Rights of Security Holders  HTML     52K 
20: EX-4.19     Instrument Defining the Rights of Security Holders  HTML     38K 
 3: EX-4.2      Instrument Defining the Rights of Security Holders  HTML     38K 
21: EX-4.20     Instrument Defining the Rights of Security Holders  HTML     50K 
22: EX-4.21     Instrument Defining the Rights of Security Holders  HTML     53K 
23: EX-4.22     Instrument Defining the Rights of Security Holders  HTML     55K 
24: EX-4.23     Instrument Defining the Rights of Security Holders  HTML     53K 
25: EX-4.24     Instrument Defining the Rights of Security Holders  HTML     84K 
26: EX-4.25     Instrument Defining the Rights of Security Holders  HTML     90K 
27: EX-4.26     Instrument Defining the Rights of Security Holders  HTML     75K 
28: EX-4.27     Instrument Defining the Rights of Security Holders  HTML    116K 
 4: EX-4.3      Instrument Defining the Rights of Security Holders  HTML     55K 
 5: EX-4.4      Instrument Defining the Rights of Security Holders  HTML     38K 
 6: EX-4.5      Instrument Defining the Rights of Security Holders  HTML     54K 
 7: EX-4.6      Instrument Defining the Rights of Security Holders  HTML     53K 
 8: EX-4.7      Instrument Defining the Rights of Security Holders  HTML     52K 
 9: EX-4.8      Instrument Defining the Rights of Security Holders  HTML     52K 
10: EX-4.9      Instrument Defining the Rights of Security Holders  HTML     53K 
29: EX-10.1     Material Contract                                   HTML     74K 
38: EX-10.10    Material Contract                                   HTML     36K 
39: EX-10.11    Material Contract                                   HTML     36K 
40: EX-10.12    Material Contract                                   HTML     18K 
41: EX-10.13    Material Contract                                   HTML     21K 
42: EX-10.14    Material Contract                                   HTML     17K 
43: EX-10.15    Material Contract                                   HTML     30K 
44: EX-10.17    Material Contract                                   HTML    124K 
45: EX-10.18    Material Contract                                   HTML    111K 
30: EX-10.2     Material Contract                                   HTML     60K 
31: EX-10.3     Material Contract                                   HTML    243K 
32: EX-10.4     Material Contract                                   HTML     34K 
33: EX-10.5     Material Contract                                   HTML     39K 
34: EX-10.6     Material Contract                                   HTML     29K 
35: EX-10.7     Material Contract                                   HTML    233K 
36: EX-10.8     Material Contract                                   HTML    103K 
37: EX-10.9     Material Contract                                   HTML     26K 
46: EX-23.1     Consent of Experts or Counsel                       HTML     16K 


EX-10.3   —   Material Contract
Exhibit Table of Contents

Page (sequential) | (alphabetic) Top
 
11st Page   -   Filing Submission
"Exhibit C Memorandum of Commencement Date
"EXHIBIT D SPACE PLAN To be provided by Tenant by June 9, 2000
"QuickLinks

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Exhibit 10.3

AGREEMENT OF LEASE

BETWEEN

FV OFFICE PARTNERS II, L.P.

AND

TRAFFIC.COM, INC.

PORTIONS OF FIRST AND SECOND FLOORS
851 DUPORTAIL ROAD
CHESTERBROOK CORPORATE CENTER
TREDYFFRIN TOWNSHIP
CHESTER COUNTY
PENNSYLVANIA


TABLE OF CONTENTS

Article

   
  Page
1.   Parties    
2.   Demise    
3.   Term    
4.   Fixed Rent; Tenant Energy Costs; Annual Operating Costs; Lease Taxes    
5.   Covenant to Pay Rent and Additional Rent; Late Charge    
6.   Use    
7.   Assignment and Subletting    
8.   Improvement of the Premises    
9.   Alterations    
10.   Rules and Regulations    
11.   Fire or Other Casualty    
12.   Landlord's Right to Enter    
13.   Insurance    
14.   Repairs and Condition of Premises    
15.   Compliance with Law    
16.   Services    
17.   Notice of Breakage, Fire, Theft    
18.   Release of Landlord    
19.   Mechanics' and Other Liens    
20.   Intentionally Omitted    
21.   Defaults—Remedies    
22.   Remedies Cumulative    
23.   Excepted from Premises    
24.   Lease Subordinated    
25.   Condemnation    
26.   Paramount Lease    
27.   Notices    
28.   Definition of "the Landlord"    
29.   Definition of "the Tenant"    
30.   Estoppel Certificate; Mortgagee Lease Comments    
31.   Severability    
32.   Miscellaneous    
33.   Brokers    
34.   Security Deposit    
35.   Letter of Credit    
36.   Roof Mounted Equipment    
37.   Option to Renew    
38.   Additional Space    
39.   Exterior Signage    
40.   Quiet Enjoyment    
41.   Rights of Mortgage Holder    
42.   Whole Agreement    

 

 

Hearing Waiver and Certification

 

 
         

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Exhibits


 

 


 

 

"A1"   Phase I Floor Plan    
"A2"   Phase II Floor Plan    
"B"   Description of the Land    
"C"   Memorandum of Commencement Date    
"D"   Space Plan    
"E"   Standard Tenant Work    
"F"   Cleaning Specifications    
"G"   Rules and Regulations    
"H"   Form of Letter of Credit    
"I"   Rooftop Equipment    
"J"   Form of Landlord's Consent to Sublease    
"K"   Additional Space    
"L"   Additional Rider    

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AGREEMENT OF LEASE

        1.    Parties.    

        This Lease is made this 14th day of June, 2000, by and between FV OFFICE PARTNERS II, L.P., a limited partnership organized and existing under the laws of Delaware, whose address is Suite 200, 851 Duportail Road, Wayne, PA 19087 (hereafter called "Landlord"), and TRAFFIC.COM, INC., a corporation organized and existing under the laws of the state of Delaware whose present address is 207 House Avenue, Suite 104, Camp Hill, PA 17011 (hereinafter referred to as "Tenant").

        It is hereby agreed by and between Landlord and Tenant, intending to be legally bound, for themselves and for their respective heirs, executors, administrators, successors and assigns, in the manner following, it being understood that the Premises are demised under and subject to the following covenants, all of which are also to be regarded as strict legal conditions:

        2.    Demise.    

        3.    Term.    

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        4.    Fixed Rent; Tenant Energy Costs; Annual Operating Costs; Lease Taxes.    

Lease Period

  Annual Rent
  Minimum Fixed
Monthly Rent

Phase I Commencement Date - Phase II Commencement Date   $ 642,208.00   $ 53,517.33
Phase II Commencement Date - 12th Month of Term   $ 852,824.00   $ 71,068.67
13th Month - 24th Month   $ 875,667.50   $ 72,972.29
25th Month - 36th Month   $ 898,511.00   $ 74,875.92
37th Month - 48th Month   $ 921,354.50   $ 76,779.54
49th Month - 60th Month   $ 944,198.00   $ 78,683.17

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4


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        5.    Covenant to Pay Rent and Additional Rent; Late Charge.    

        Tenant shall, without prior demand, notice, setoff or deduction, pay the Fixed Rent and all other sums which may become due by Tenant under this Lease, at the times, at the places and in the manner provided in this Lease. All such other sums shall be payable as additional rent for all purposes whether or not they would otherwise be considered rent. If any payment or any part thereof to be made by Tenant to Landlord pursuant to the terms of this Lease shall have become overdue for a period in excess of thirty (30) days, such grace period limited to no more than two (2) occurrences in any twelve (12) month period, after written notice to Tenant, a late charge of five cents ($.05) for each dollar so overdue may be charged by Landlord for the purpose of defraying the expense incident to handling such delinquent payment, together with interest from the date when such payment or part thereof was due at the Lease Interest Rate (defined below) or such lesser amount or rate, if any, as represents the maximum amount or rate Landlord lawfully may charge in respect of Tenant in such circumstances. Nothing herein shall be construed as waiving any rights of Landlord arising out of any defaults of Tenant by reason of Landlord's assessing or accepting any such late payment, the late charge and interest provided herein is separate and apart from any rights relating to remedies of the Landlord after default by Tenant in the performance or observance of the terms of this Lease. Without limiting the generality of the foregoing, if Tenant shall be in default in the performance of any of its obligations under this Lease, Landlord 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 Tenant and Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord in curing such default, including interest thereon at the Lease Interest Rate or such lesser rate as represents the maximum rate Landlord lawfully may charge in respect of Tenant in such circumstances, reasonable attorney's fees and other legal expenses, including also the said late charge and interest on all sums paid and costs incurred by Landlord as aforesaid, which sums and costs together with late charge and interest thereon shall be deemed additional rent hereunder. As used in this Lease, the "Lease Interest Rate" shall mean four percent (4%) plus the prime rate.

        6.    Use.    

        The Premises are to be used only by Tenant for general office and broadcast purposes and for no other purpose. Tenant shall not use or occupy the Premises or any part thereof, or permit the Premises or any part thereof to be used or occupied, other than as specified in the sentence immediately preceding. Tenant shall permit its employees, invitees and guests to park only automobiles, or similarly sized vehicles, on the Property. Such parking shall be unreserved and be limited to Tenant's proportionate share of the Premises.

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        7.    Assignment and Subletting.    

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        8.    Improvement of the Premises.    

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        9.    Alterations.    

        No alterations, additions or improvements shall be made to the Premises or any part thereof by or on behalf of Tenant without first submitting a detailed description thereof to Landlord and obtaining Landlord's written approval, which approval shall designate whether the alterations, additions or improvements shall remain at the Premises or shall be removed at the cost of Tenant before the expiration or sooner termination of this Lease. Landlord, at Landlord's option, shall have the right to provide construction management for and on behalf of Tenant at Tenant's sole expense constituting ten percent (10%) of the alteration's total cost. Notwithstanding anything to the contrary in this Lease, all alterations, additions or improvements made by Tenant and all fixtures attached to the Premises shall become the property of Landlord and remain at the Premises or, at Landlord's option, after written notice to Tenant, any or all of the foregoing which may be designated by Landlord shall be removed at the cost of Tenant before the expiration or sooner termination of this Lease and in such event Tenant shall repair all damage to the Premises caused by the installation or removal. Notwithstanding anything to the contrary in this Lease, unless otherwise requested by Landlord in writing, Tenant shall remove all Direct Tenant Work (defined at Article 8(g) hereof) and shall repair all damage to the Premises caused by the installation or removal of such Direct Tenant Work. Tenant shall not erect or place, or cause or allow to be erected or placed, any sign, advertising matter, lettering, stand, booth, showcase or other article or matter in or upon the Premises and/or the premises of which the Premises are a part,

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without the prior written consent of Landlord. Tenant shall not place weights anywhere beyond the safe carrying capacity of the structure.

        10.    Rules and Regulations.    

        The rules and regulations attached to this Lease, and such additions or modifications thereof as may from time to time be made by Landlord upon written notice to Tenant, shall be deemed a part of this Lease, as conditions, with the same effect as though written herein, and Tenant also covenants that said rules and regulations will be faithfully observed by Tenant, Tenant's employees, and all those visiting the Premises or claiming under Tenant.

        11.    Fire or Other Casualty.    

        If, during the term of this Lease, or any renewal or extension thereof, the Building is so damaged by fire or other casualty that the Premises are rendered unfit for occupancy (whether or not the Premises are damaged), then, at Landlord's and/or Tenant's option, the Term of this Lease upon written notice from Landlord and/or Tenant given with thirty (30) days after the occurrence of such damage, shall terminate as of the date of the occurrence of such damage. In such case, Tenant shall pay the rent apportioned to the time of such termination and Landlord may enter upon and repossess the Premises without further notice. If Landlord does not elect to terminate the Term of this Lease, Landlord, subject to reasonable delays for insurance adjustments and to delays caused by matters beyond Landlord's reasonable control, will repair whatever portion, if any, of the Premises or of the Building serving the Premises which may have been damaged and Landlord may enter and possess the Premises for that purpose; while the Tenant is deprived of the Premises, all Rent shall be suspended in proportion to the number of square feet of the Premises rendered untenantable. If the Premises or the Building shall be damaged so that such damage does not render the Premises unfit for occupancy, Landlord will repair whatever portion, if any, of the Premises or of the Building serving the Premises which may have been damaged and Tenant will continue in possession and rent will not be apportioned or suspended. Notwithstanding any other provisions of this Article 11, (a) if any damage is caused by or results from the negligence of Tenant, those claiming under Tenant, or their employees or invitees, respectively, rent shall not be suspended or apportioned and Tenant shall pay, as additional rent upon demand, the cost of any repairs, made or to be made, of such damage and of any restorations, made or to be made, as a result of such damage, (b) Landlord shall have no duty to repair or replace any personal property, or any of Tenant's fixtures or equipment or any alterations, improvements or decorations made by Tenant, or any Direct Tenant Work (defined at Article 8(h) hereof), (c) Landlord shall have no liability to Tenant for, and Tenant shall not be entitled to terminate this Lease by virtue of, any delays in completion of repairs and (d) Landlord shall have the right to terminate this Lease upon giving written notice to Tenant at any time within thirty (30) days after the date of the damage if the Premises is damaged by fire or other casualty during the last six (6) months of the Term unless Tenant, having the right to renew the Term pursuant to an express provision contained in this Lease, has effectively extended the Term for a term in excess of one (1) year following the occurrence of the fire or other casualty.

        12.    Landlord's Right to Enter.    

        Tenant will permit Landlord, Landlord's agents or employees or any other person or persons authorized in writing by Landlord to enter the Premises at any time with commercially reasonable notice, except during emergencies, provided such entry does not interfere with Tenant's use of the Premises, for the purpose of:

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        13.    Insurance.    

        (a)   Tenant will not do or commit any act or thing, or suffer or permit any act or thing to be done or committed, as a result of which any policy of insurance of any kind on or in connection with the Property shall become void or suspended, or the insurance risk on the building or any other portion of the Property shall (in the opinion of the insuring companies) be rendered more hazardous. Tenant shall pay as additional rent the amount of any increase of premiums for such insurance, resulting from any breach of this covenant.

        (b)   Tenant shall maintain throughout the Term, at Tenant's expense, insurance against loss or liability in connection with bodily injury, death, property damage and destruction, in or upon the Premises or the remainder of the Property, and arising out of the use of all or any portion of the same by Tenant or its agents, employees, officers, invitees, visitors and guests, under policies of general public liability or commercial general liability insurance having such limits as to each as may be reasonably required by Landlord from time to time, but in any event of not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) annual aggregate for the Premises alone; and, without limitation of the foregoing, within thirty (30) days after Landlord's request, Tenant shall have such annual aggregate increased (by the same or different policies) to such amount as Landlord may reasonably request by reason of occurrences during any policy year. All liability policies shall name as additional insureds Landlord and Landlord's mortgagees and shall provide that they shall not be modified or canceled without at least thirty (30) days prior written notice to Landlord and any other party designated as aforesaid and shall be issued by insurers of recognized responsibility licensed to do business in Pennsylvania. Copies of all such policies certified by the insurers to be true and complete shall be supplied to Landlord and such mortgagees, paramount lessors and installment sellers at all times.

        (c)   Landlord shall maintain throughout the Term so-called all-risk or fire and extended coverage insurance upon the Building. The cost of the premiums for such insurance and of any endorsements thereto shall be deemed, for purposes of Article 4 of this Lease, to be part of the costs of operating and maintaining the Property.

        (d)   Notwithstanding anything in this Lease to the contrary, each party hereto hereby releases the other party, its agents and employees to the extent of the releasing party's actual recovery under its insurance policies, from any and all liability for any loss or damage which may be inflicted upon the property of such party, notwithstanding that such loss or damage shall have arisen out of the negligent or intentionally tortious act or omission of the other party, its agents or employees, provided, however, that this release shall be effective only with respect to loss or damage occurring during such times as the appropriate policy of insurance of the party so releasing shall contain a clause to the effect that such release shall not affect the said policy or the right of the insured to recover thereunder, each party hereto shall use reasonable efforts to have such a clause included in its said policies.

        14.    Repairs and Condition of Premises.    

        At the expiration or other termination of this Lease, Tenant shall leave the Premises, and during the Term will keep the same, in good order and condition, ordinary wear and tear, damage by fire or other casualty (which fire or other casualty has not occurred through the negligence of Tenant or those claiming under Tenant or their employees or invitees respectively) and repairs to be performed by Landlord under Article 16(a)(v) of this Lease alone excepted; for that purpose and, except as stated in this Lease, Tenant will make all necessary repairs and replacements. Tenant will use every reasonable precaution against fire and will give Landlord prompt notice of any damage to or accident upon the Premises. Tenant will also at all times, subject to Article 16(a)(iv) of this Lease, remove all dirt, rubbish, waste and refuse from the Premises and at the expiration or sooner termination of the Term

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will also have had removed all its property therefrom, to the end that Landlord may again have and repossess the Premises. Any of Tenant's property remaining on the Premises on the date of the expiration or termination of the Term shall be deemed abandoned by Tenant and may be removed and disposed of in such manner as Landlord may, at its sole discretion, determine, and Tenant shall reimburse Landlord, upon demand, for the cost of such removal and disposal, plus ten percent (10%) for overhead.

        15.    Compliance with Law.    

        Tenant shall comply promptly with all laws and ordinances, including, without limitation, the Americans With Disabilities Act, and all notices, requirements, orders, regulations and recommendations (whatever the nature thereof may be) of any and all the federal, state, county or municipal authorities or of the Board of Fire Underwriters or any insurance organizations, associations or companies, with respect to the Premises and any property appurtenant thereto and any use thereof; Tenant also agrees that it shall not knowingly do or commit any act or thing, or suffer to be done or committed any act or thing anywhere on the Property contrary to any of the laws, ordinances, notices, requirements, orders, regulations and recommendations hereinabove referred to in this Article. Additionally, Landlord hereby represents to Tenant that, as of the Commencement Date of this Lease, the Premises are in full compliance with the Americans With Disabilities Act, and all notices, requirements, orders, regulations and recommendations (whatever the nature thereof may be) of any and all the federal, state, county or municipal authorities or of the Board of Fire Underwriters or any insurance organizations, associations or companies, with respect to the Premises and any property appurtenant thereto and any use thereof.

        16.    Services.    

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        (b)    Special Equipment.    Tenant shall not install any equipment of any kind or nature whatsoever which would or might necessitate any changes, replacements or additions to any of the heating, ventilating, air conditioning, electric, sanitary, elevator or other systems serving the Premises or any other portion of the Building, except as part of the Standard Tenant Work as approved by Landlord; or to any of the services required of Landlord under this Lease, without the prior written consent of the Landlord, which consent shall not be unreasonably withheld. In the event that such consent is granted, such replacements, changes or additions shall be paid for by Tenant. At the expiration or earlier termination of the Term, Tenant shall pay to Landlord Landlord's cost of restoring such systems to their condition prior to such replacements, changes or additions.

        (c)    Interruption of Service.    In case of accident, strikes, inability to obtain supplies, breakdowns, repairs, renewals or improvements to the Building or replacement of machinery therein, or for other cause pertaining to the Building deemed sufficient by Landlord, the operation of any of the elevators or other machinery or apparatus may be changed or suspended. As to heat, ventilation, air conditioning, cleaning service, electricity and elevator service, and any other services, Landlord shall not be responsible or liable in any way for any failure, interruption or inadequacy in the quantity or quality of the same where caused by war, civil commotion, governmental restrictions, prohibitions or other regulations, strikes, labor disturbances, inability to obtain adequate supplies or materials, casualties, repairs, replacements, or causes beyond Landlord's reasonable control whether similar or dissimilar to the foregoing.

        17.    Notice of Breakage, Fire, Theft.    

        Tenant shall give to Landlord prompt written notice, but in any event no longer than forty-eight (48) hours, of any

        (a)   accident or breakage or defects in the window glass, wires, plumbing or heating ventilating or cooling apparatus, elevators or other apparatus, wails or ceiling tiles,

        (b)   fire or other casualty, or

        (c)   theft.

        18.    Release of Landlord.    

        Except for the negligence or willful misconduct of Landlord, its agents or invitees, Landlord shall not be held responsible for and is hereby expressly relieved from any and all liability by reason of any injury, loss, or damage to any person or property in or about the Premises or the Property due to any cause whatsoever and whether the loss, injury or damage be to the person or property of Tenant or any other person, and whether or not due to any oversight, neglect or negligence of Landlord occurring before or after the execution of this Lease. Tenant further agrees to indemnify, defend and save Landlord harmless from and against all claims not resulting from the negligence or willful misconduct of Landlord, its agents or invitees, by any employee or invitee of Tenant made on account of such injury, loss or damage, including but not limited to reasonable attorneys' fees and other legal expenses.

        19.    Mechanics' and Other Liens.    

        (a)   Tenant covenants that it shall not (and has no authority to) create or allow any encumbrance against the Premises, the Property, the Building or any part of any of any of them or Landlord's interest therein.

        (b)   Tenant covenants that it shall not suffer or permit to be created, or to remain, any lien or claim thereof (arising out of any work done or services, material, equipment or supplies furnished for or at the request of Tenant or by or for any contractor or subcontractor of Tenant) which is or may

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become a lien upon the Premises, the Property, the Building or any part of any of any of them or the income therefrom or any fixture, equipment or similar property therein.

        (c)   If any lien or claim shall be filed, Tenant, within ten (10) days after the filing thereof, shall cause the same to be discharged of record by payment, deposit, bond or otherwise. If Tenant shall fail to cause such lien or claim to be discharged and removed from record within that period, then, without obligation to investigate the validity thereof and in addition to any other right or remedy Landlord may have, Landlord may, but shall not be obligated to, contest the lien or claim or discharge it by payment, deposit, bond or otherwise; and Landlord shall be entitled, if Landlord so decides, to compel the prosecution of an action for the foreclosure of such lien by the lienor and to pay the amount of the judgment in favor of the lienor with interest and costs. Any amounts so paid by Landlord and all costs and expenses, including attorneys' fees, incurred by Landlord in connection therewith, together with interest at the Lease Interest Rate from the respective dates of Landlord's making of the payment or incurring of the cost or expense, shall constitute additional rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord within fifteen (15) days after demand.

        (d)   Notwithstanding anything to the contrary in this Lease or in any other writing signed by Landlord, neither this Lease nor any other writing signed by Landlord shall be construed as evidencing, indicating, or causing an appearance that any erection, construction, alteration or repair to be done, or caused to be done, by Tenant is or was in fact for the immediate use and benefit of Landlord. Further, notwithstanding anything contained herein to the contrary, nothing contained in or contemplated by this Lease shall be deemed or construed in any way to constitute the consent or request on the part of Landlord for the performance of any work or services or the furnishing of any materials for which any lien could be filed against the Premises or the Building or the Property or any part of any thereof, nor as giving Tenant any right, power, or authority to contract for or permit the performance of any work or services or the furnishing of any materials for which any lien could be filed against the Premises, the Building, the Property or any part of any thereof.

        (e)   Prior to commencement of any work or the delivery of any material to the Premises by any contractor, subcontractor or materialman engaged by Tenant, Tenant shall deliver to the Landlord a waiver of liens (herein called "Waiver of Liens") from each such contractor in form satisfactory to Landlord, bearing a stamp from the Prothonotary's Office in Philadelphia indicating the timely filing of the Waiver of Liens under the Mechanics Lien Law of Pennsylvania, 49 P.S.A. "14,02. The Waiver of Liens shall provide, among other things, that the contractor, for itself and all subcontractors, materialmen and other persons providing labor, services, material or work under Tenant, waives any and all lien rights that it or any of them may have against Landlord's interest in the Property or any part thereof. Tenant shall file the Waivers of Liens at Tenant's sole cost and expense.

        20.    Intentionally Omitted.    

        21.    Defaults—Remedies.    

        If any of the following shall occur:

        (a)   Any payment or any part thereof to be made by Tenant to Landlord pursuant to the terms of this Lease shall have become overdue for a period in excess of thirty (30) days, such grace period limited to no more than two (2) occurrences in any twelve (12) month period;

        (b)   Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained, and such failure continues for a period of thirty (30) days after Landlord notifies Tenant of such failure;

        (c)   Tenant abandons the Premises or removes or attempts to remove Tenant's property therefrom other than in the ordinary course of business without having first paid to Landlord in full all rent and charges that may have become due as well as all which will become due thereafter; or

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        (d)   An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any guarantor or surety of Tenant's obligations under this Lease ("Guarantor"), or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or seeking the winding-up or liquidation of Tenant's or a Guarantor's affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant or a Guarantor commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or if Tenant or any Guarantor makes any assignment for the benefit of creditors or admits in writing its inability to pay its debts generally as they become due or fails to generally pay its debts as they become due or if Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, marshall or constable or it Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or furtherance of or for any of the foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or liquidated.

        Then, and in any such event, at the sole option of Landlord,

        (i)    The then present value of the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or agreed to be paid by Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or

        (ii)   Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to landlord's other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:

19


        (iii)  Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant's and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach.

        Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.

        Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law.

        For the purposes of computing "the then present value of the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded.

        The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may obtain specific performance of any provision of Articles 6, 7 and

20



10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease.

        In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for all costs incurred by Landlord in curing such default, including, without limitation, reasonable attorneys' fees and other legal expenses, together with interest thereon at the Lease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder.

        Also in addition to, and not in lieu of any of the foregoing rights granted to Landlord:

        As used in this Article 21, the "term" shall include the Term of this Lease and any renewals or extensions thereof to which Tenant shall have become bound.

21


        22.    Remedies Cumulative.    

        All remedies available to Landlord under this Lease and at law and in equity shall be cumulative and concurrent No termination of this Lease or taking or recovering possession of the Premises shall deprive Landlord of any remedies or actions against Tenant for rent, for charges or for damages for the breach of any covenant or condition herein contained, nor shall the bringing of any such action for rent, charges or breach of covenant or condition, nor the resort to any other remedy or right for the recovery of rent, charges or demands for such breach be construed as a waiver or release of the right to insist upon the forfeiture and to obtain possession. No reentering or taking possession of the Premises, or making of repairs, alterations or improvements thereto, or reletting thereof, shall be construed as an election on the part of Landlord to terminate this Lease unless written notice of such intention be given by Landlord to Tenant. The failure of Landlord to insist upon strict and/or prompt performance of the terms, agreements, covenants and conditions of this Lease or any of them, and/or the acceptance of such performance thereafter shall not constitute or be construed as a waiver of Landlord's right to thereafter enforce the same strictly according to the tenor thereof in the event of a continuing or subsequent default.

        23.    Excepted from Premises.    

        In the event that Exhibits "A" or "D" show as being within the Premises, hallways, passageways, stairways, elevators, or other means of access to and from the Premises or the upper and lower portions of the Building, the space occupied by the said hallways, passageways, stairways, elevators and other means of access, although within the Premises as described hereinabove, shall be taken to be excepted therefrom and reserved to Landlord or to the other lessees of the Building and the same shall not be considered a portion of the Premises. All ducts, pipes, wires or other equipment used in the operation of the Building, or any part thereof, and any space occupied thereby, whether or not within the Premises as described hereinabove, shall likewise be excepted and reserved from the Premises, and Tenant shall not remove or tamper with or use the same and will permit Landlord to enter the Premises to service, replace, remove or repair the same, in accordance with Article 12 hereof.

        24.    Lease Subordinated.    

        (a)   This Lease shall be subject and subordinate at all times to the lien of any mortgage, deed of trust, ground lease, installment sale agreement and/or other instrument or encumbrance heretofore or hereafter placed upon any or all of Landlord's interest or estate in the Premises or the remainder of the Property and of all renewals, modifications, consolidations, replacements and extensions thereof (all of which are hereinafter referred to collectively as a "mortgage"), all automatically and without the necessity of any further action on the part of the Tenant to effectuate such subordination. The Tenant shall, at the request of the holder of any such mortgage, attorn to such holder, and shall execute, enseal, acknowledge and deliver, upon demand by the Landlord or such holder, such further instrument or instruments evidencing such subordination of the Tenant's right, title and interest under this Lease to the lien of any such mortgage, and such further instrument or instruments evidencing and elaborating such attornment, as shall be desired by such holder.

        (b)   Anything contained in the foregoing provisions of this Article to the contrary notwithstanding, any such holder may at any time subordinate its mortgage to the operation and effect of this Lease, without the necessity of obtaining the Tenant's consent thereto, by giving notice of the same in writing to the Tenant, and thereupon this Lease shall be deemed to be prior to such mortgage without regard to their respective dates of execution, delivery and/or recordation, and in that event such holder shall have the same rights with respect to this Lease as though this Lease shall have been executed, delivered and recorded prior to the execution and delivery of such mortgage.

        25.    Condemnation.    

        (a)   If the whole or a substantial part of the Building shall be taken or condemned for a public or quasi-public use under any statute or by right of eminent domain or private purchase in lieu thereof by

22


any competent authority, Tenant shall have no claim against Landlord and shall not have any claim or right to any portion of the amount that may be awarded as damages or paid as a result of any such condemnation or purchase including, without limit, any right of Tenant to damages for loss of its leasehold; all right of Tenant to damages therefor are hereby assigned by Tenant to Landlord. The foregoing shall not, however, deprive Tenant of any separate award for moving expenses, business dislocation damages or for any other award which would not reduce the award payable to Landlord. Upon the date the right to possession shall vest in the condemning authority, this Lease shall cease and terminate with rent adjusted to such date and Tenant shall have no claim against Landlord for the value of any unexpired term of this Lease.

        (b)   In the event of any temporary eminent domain taking of the Premises or any part thereof for temporary use, this Lease shall not be affected in any manner, the Term shall not be reduced, and the Tenant shall continue to pay in full the Fixed Rent, additional rent and all other sums of money and charges in this Lease reserved and provided to be paid by Tenant. Tenant shall be entitled to receive for itself such portion of any eminent domain award made for such temporary use with respect to the period of the taking which is within the Term; provided that if such temporary taking shall remain in full force at the expiration or earlier termination of this Lease, the award shall be apportioned between Landlord and Tenant in proportion to the respective portions of the period of temporary taking which falls within the Term and which falls outside the Term.

        26.    Paramount Lease.    

        If Landlord is or becomes lessee or installment purchaser of the Premises or of the premises of which the Premises are a part, then Tenant agrees that Tenant takes possession subordinate to the interest of Landlord's lessor or installment seller, its successors and assigns, but notwithstanding the foregoing, in case Landlord's tenancy or interest as installment purchaser shall terminate either by expiration, forfeiture or otherwise, then Landlord's lessor or installment seller, its heirs, administrators, executors, successors and assigns, shall have all the rights of Landlord under this Lease, following such termination. In the event of any such termination of Landlord's tenancy or interest as installment purchaser, Tenant hereby agrees to attorn to Landlord's lessor, its heirs, administrators, executors, successors and assigns, and to recognize such lessor or installment seller, its heirs, administrators, executors, successors and assigns, as Tenant's Landlord for the balance of the term of this Lease and any extensions or renewals of this Lease. Tenant shall execute, enseal, acknowledge and deliver, upon demand by Landlord or Landlord's lessor or installment seller, such further instrument or instruments evidencing such subordination of Tenant's right, title and interest under this Lease to the interests of such lessor or installment seller and such further instrument or instruments of attornment, as shall be desired by such lessor or installment seller.

        27.    Notices.    

        (a)   Each notice, demand, request or other communication required or permitted under the terms of this Lease shall be in writing and, unless and until otherwise specified in a written notice by the party to receive it, shall be sent to the parties at the following respective addresses:

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        Notices may be given on behalf of any party by its legal counsel.

        (b)   Each such notice, demand, request or other communication shall be deemed to have been properly given for all purposes if (i) hand delivered, or (ii) mailed by registered or certified mail of the United States Postal Service, return receipt requested, postage prepaid, or (iii) delivered to a nationally recognized overnight courier service for next business day (or sooner) delivery, or

        (c)   Each such notice, demand, request or other communication shall be deemed to have been received by its addressee, and to have been effectively given, upon the earlier of (i) actual delivery, (ii) refusal of acceptance at the proper address, or (iii) three (3) business days after deposit thereof at any main or branch United States post office, if sent, in accordance with clause (ii) of subsection (b) of this Article and (iv) one (1) business day after delivery to the courier, if sent pursuant to clause (iii) of subsection (b) of this Article; provided that in the case of delivery by telecopier or facsimile, "actual delivery" shall mean receipt of the telecopier or facsimile transmission between the hours of 9:00 AM and 5:00 PM on a business day or if not received within such hours on a business day, the next business day after receipt.

        28.    Definition of "the Landlord".    

        The word "Landlord" is used herein to include the Landlord named above and any subsequent owner of such Landlord's interest in the Building in which the Premises are located, as well as their respective heirs, personal representatives, successors and assigns, each of whom shall have the same rights, remedies, powers, authorities and privileges as it would have had had it originally signed this Lease as Landlord, including the right to proceed in its own name to enter judgement by confession or otherwise, but any such person, whether or not named herein, shall have no liability hereunder after it ceases to hold such interest. Neither Landlord nor any principal of or partner in Landlord, whether disclosed or undisclosed, shall be under any personal liability with respect to any of the provisions of this Lease and if Landlord shall default in the performance of Landlord's obligations under this Lease or otherwise, Tenant shall look solely to the equity of Landlord in its interest in the Property for the satisfaction of Tenant's remedies. It is expressly understood and agreed that Landlord's liability under the terms, covenants, conditions, warranties and obligations of this Lease shall in no event exceed the loss of Landlord's equity in its interest in the Property.

        29.    Definition of "the Tenant".    

        As used herein, the term "Tenant" shall be deemed to refer to each and every person and/or entity hereinabove named as such and to such persons' and/or entities' respective heirs, personal representatives, successors and assigns, each of whom shall have the same obligations, liabilities, rights and privileges as it would have possessed had it originally executed this Lease as the Tenant. However, no such rights, privileges or powers shall inure to the benefit of any assignee of the Tenant, immediate or remote, unless the assignment to such assignee has been approved in writing by Landlord pursuant to the provisions of this Lease and such assignee shall have executed and delivered to Landlord the written documents required by Landlord referred to hereinbefore. Each and every person hereinabove

24


named as the Tenant shall be bound jointly and severally by the terms, covenants and agreements contained herein.

        30.    Estoppel Certificate; Mortgagee Lease Comments.    

        (a)   Tenant shall from time to time, within ten (10) days after Landlord shall have requested the same of Tenant, execute, enseal, acknowledge and deliver to Landlord a written instrument in recordable form.

        (b)   Tenant acknowledges that Landlord's mortgagees and/or the trustee under a trust indenture for bond holders who shall be providing construction and/or permanent financing for the Building ("Mortgagees") may require various changes in the terms of this Lease as a part of and a condition of their financing. Tenant agrees to cooperate and act in good faith in agreeing to such changes in this Lease by written amendments to this Lease which are required by any of the Mortgagees, provided that such changes do not materially affect the Tenant's rental cost hereunder or change the term hereby demised and provided that such requested changes are of a nature reasonably necessary to protect any such Mortgagees' security in accordance with usual lending practices. In the event that Tenant shall not agree to a change requested by any of the Mortgagees, then Landlord shall have the right, upon thirty (30) days notice to Tenant, to terminate this Lease and all of Tenant's right hereunder, and shall refund to Tenant such funds as Tenant may have paid on account of future rent.

        31.    Severability.    

        No determination or adjudication by any court, governmental or administrative body or agency or otherwise that any provision of this Lease or of any amendment hereto or modification hereof is invalid or unenforceable in any instance shall affect the validity or the enforceability

        (a)   of any other provision of this Lease, of such amendment or modification, or any other such amendment or modification, or

25



        (b)   of such provision in any other instance or circumstance which is not within the jurisdiction of such court, body or agency or controlled by its said determination or adjudication. Each and every provision hereof and of each such amendment or modification shall be and remain valid and enforceable to the fullest extent allowed by law, and shall be construed wherever possible as being consistent with applicable law.

        32.    Miscellaneous.    

        (a)   The Building may be designated and known by any name Landlord may choose and such name may be changed from time to time at Landlord's sole discretion. The Titles appearing in connection with various sections of this Lease are for convenience only. They are not intended to indicate all of the subject matter in the text and they are not to be used in interpreting this Lease nor for any other purpose in the event of any controversy. As used herein

        (b)   the term "person" shall be deemed to mean a natural person, a trustee, a corporation, a partnership and any other form of legal entity;

        (c)   all references in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. Each and every document or other writing which is referred to herein as being attached hereto or is otherwise designated herein as an exhibit hereto is hereby made a part hereof.

        (d)   Tenant shall pay upon demand all Landlord's costs, charges and expenses, including the fees and out-of-pocket expenses of 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.

        (e)   Landlord shall have the right at any time, and from time to time, during the Term of this Lease, to unilaterally amend the provisions of this Lease if Landlord is advised by its counsel that all or any portion of the monies paid by Tenant to Landlord hereunder are, or may be deemed to be, unrelated business income within the meaning of the United States Internal Revenue Code or regulations issued thereunder, and Tenant agrees that it will execute all documents or instruments necessary to effect such amendment or amendments, provided that no such amendment shall result in Tenant having to pay in the aggregate a larger sum of money on account of its occupancy of the Premises under the terms of this Lease as so amended, and provided further that no such amendment or amendments shall result in Tenant receiving under the provisions of this Lease less services than it is entitled to receive, nor services of a lesser quality.

        (f)    No waiver of any provision of this Lease shall be implied by any failure of Landlord to enforce any remedy allowed for the violation of such provision, even if such violation is continued or repeated, and no express waiver shall affect any provision other than the one(s) specified in such waiver and only then for the time and in the manner specifically stated. No receipt of monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant's right of possession hereunder or after the giving of any notice shall reinstate, continue or extend the Term or affect any notice given to Tenant prior to the receipt of such moneys, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Premises, Landlord may receive and collect any rent due, and the payment of said rent shall not waive or affect said notice, suit or judgment.

        (g)   It is mutually agreed by and between Landlord and Tenant that they hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises or claim of injury or damage.

        (h)   Tenant acknowledges and agrees that Landlord and Landlord's agents have made no representation, agreements, conditions, warranties, understandings, or promises, either oral or written,

26



other than as herein set forth, with respect to this Lease, the Building, the Property, the Premises, or otherwise.

        (i)    The submission by Landlord to Tenant of this Lease shall have no binding force or effect, shall not constitute an option for the leasing of the Premises nor confer any rights or impose any obligations upon either party until the execution thereof by Landlord and the delivery of an executed original copy thereof to Tenant.

        33.    Brokers.    

        Tenant represents and warrants that it did not deal with any broker, finder or other intermediary to whom a fee or commission is or will become payable in connection with this Lease except The Staubach Company of Pennsylvania and Fox Realty Co.

        34.    Security Deposit.    

        (a)   Upon execution of this Lease, Tenant shall provide to Landlord a security deposit in the amount of One Hundred Forty Two Thousand One Hundred Thirty Seven Dollars and Thirty Four Cents ($142,137.34), which sum shall be retained by Landlord without interest and not in trust or in a separate account as security for the payment by Tenant of the rent herein agreed to be paid and for the faithful performance of the covenants contained in this Lease. If at any time Tenant shall be in default under any of the provisions of this Lease, Landlord shall be entitled, at its sole discretion to apply such security deposit

        35.    Letter of Credit.    

        Tenant shall deliver to Landlord on or before the dates as indicated below an irrevocable, transferable (one or more times) and unconditional Letter of Credit ("Letter of Credit") substantially in the form attached hereto as "Exhibit H" in the amount(s) indicated hereinbelow, issued by a bank acceptable to Landlord, providing that all or any portion of the principal amount thereof is available against presentation of Landlord's "at sight" request or requests for payment accompanied solely by a statement purportedly signed by a partner or officer of Landlord or its agent or assignee, stating that an Event of Default has occurred by Tenant under the Lease, after Tenant receives notice and the default remains uncured after the applicable cure period. Tenant shall provide a Letter of Credit throughout the Term of this Lease in accordance with the provisions of this Article 35. The Letter of Credit shall state that it contains the entire understanding of all parties named therein, that it is subject to the terms and conditions by all of the parties named therein. In the event Landlord or its agent or assignee shall draw upon part or all of the Letter of Credit during the Term, of this Lease, Tenant shall either replenish the said Letter of Credit within five days of the draw thereupon or within said five-day period deliver to Landlord a replacement Letter of Credit in an amount equal to the amount drawn subject to the terms and conditions provided herein. The failure of Tenant to (i) maintain the required Letter of Credit, (ii) replenish or replace any portion of the Letter of Credit after a draw or (iii) deliver a replacement Letter of Credit in the amount set forth below to Landlord by the date

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which is thirty (30) days prior to the anniversary of the Commencement Date of each respective year shall be an Event of Default under this Lease and shall entitle Landlord to draw on the existing Letter of Credit.

        Tenant shall obtain a Letter of Credit in the amount of Three Hundred Forty Seven Thousand Six Hundred Eighty Five Dollars ($347,685.00) in the amount(s) and on the following schedule: (i) Two Hundred Seventy Two Thousand Four Hundred Sixty Five Dollars ($272,465.00) upon execution of this Lease; and (ii) Seventy Five Thousand Two Hundred Twenty Two Dollars ($75,222.00) on or before January 30, 2001. Provided Tenant is not in default of any of the terms, covenants and conditions of this Lease at the commencement of each of the subsequent full Lease Years of the original Term, the amount of the Letter of Credit required shall be reduced to the following amounts for each subsequent year as set forth below:

Date

  Letter of
Credit Value

   
First Lease Year   $ 347,685.00   4/1/01 - 3/31/02

Second Lease Year

 

$

278,148.00

 

03

Third Lease Year

 

$

208,611.00

 

04

Fourth Lease Year

 

$

139,074.00

 

 

Fifth Lease Year

 

$

69,537.00

 

 

        In no event shall the Letter of Credit be reduced below $69,537.00, except upon termination this Lease, at which time Landlord shall release the Letter of Credit. Tenant may request Landlord to release the face amount of the Letter of Credit during the term of the Lease provided Tenant delivers to Landlord audited financial statements, (i) disclosing Tenant's net worth to be in excess of Ten Million Dollars ($10,000,000.00) for a period of three (3) consecutive quarters and (ii) showing Tenant's net profit based on earnings before amortization and depreciation or (iii) Tenant becomes a publicly traded company on the Nasdaq, American or New York stock exchange. Landlord shall have the right, in its sole and absolute discretion, to approve or reject Tenant's request. In no event shall Landlord transfer or assign the Letter of Credit to any party other than the assignee of Landlord's interest in this Lease.

        36.    Roof Mounted Equipment.    

        Tenant may, as its expense during the Term, install, use, operate, and maintain the equipment listed on Exhibit "I" on the roof of the Building, together with all related equipment and necessary cables to run between the dish and the Premises (collectively, the "Equipment"), in accordance with the following terms and conditions:

        (a)   The specifications for the Equipment, the aesthetic design of the Equipment, the frequencies to be sent and received by the Equipment, and the location thereof (the "Location") are to be provided to Landlord for Landlord's written approval and are made a part hereof by reference.

        (b)   Tenant shall be obligated to pay to Landlord the cost of the electric energy used by the Equipment, including but not limited to the de-icing equipment which is part of the Equipment. Payment for such electric energy shall be made by Tenant within twenty (20) days of receipt of the statement therefor.

        (c)   Tenant shall have the right of access to and from the Location at all times subject to the security regulations of the Building. The Equipment or other properties attached to or otherwise brought into or onto the Building shall at all times be deemed to be the personal property of Tenant.

        (d)   Landlord retains the right to reserve roof space for the purpose of transmitting and receiving broadcast radio, television, one-way and two-way communication, microwave transmission and weather

28



radio antennae so long as the frequencies installed after the date the Equipment was installed are compatible with Tenant's frequencies and do not otherwise interfere with Tenant's installations.

        (e)   All costs for the installation of the Equipment and any additional electrical equipment, mounting, engineering, etc., required by Tenant, or which are required to comply with Landlord's site engineering standards, will be at Tenant's sole expense and shall be subject to Landlord's written approval prior to any installation, which approval Landlord agrees shall not be unreasonably withheld or delayed.

        (f)    Tenant assumes full responsibility for the installation, engineering and maintenance of all the equipment it installs.

        (g)   During the Term, Landlord shall, at Tenant's sole cost and expense, keep the Location in good condition and repair. Upon termination or expiration of the Term or the cancellation of this Article 35, Tenant will surrender the Location to Landlord in good condition, reasonable wear and tear and damage by fire or other casualty excepted, and shall remove the Equipment. Landlord shall, at Tenant's expense, weather seal any and all holes left by the removal of the Equipment and repair any damage caused by the installation, operation, maintenance or removal of the Equipment.

        (h)   It is understood and agreed that certain antennae and equipment to be placed on the roof is necessary for the operation of the business of the Tenant. It is further understood and agreed that portions of the space on the roof are under contract to other licensees or tenants for the installation of antennas and ancillary equipment. The rights granted to Tenant hereunder cannot be used in any way that would interfere with rights previously granted to others and Tenant's signals must be compatible with the signals of those frequencies installed pursuant to such prior agreements. It shall be Tenant's sole responsibility and cost to adapt its signal as necessary for compatibility. In the event Tenant cannot so adapt its signal within thirty (30) days written notice from Landlord of such incompatibility, (i) Tenant shall surrender the Location to Landlord on or before such thirtieth (30th) day, (ii) Tenant shall reimburse Landlord for any amounts due under this Article 35 and perform any other outstanding obligations of Tenant under this Article and, (iii) this Article shall be deemed cancelled.

        (i)    Tenant shall, at its expense, obtain any Municipal, State and/or Federal permits and/or licenses required for its operations. Landlord shall not be responsible for any signal interference or signal straying that may result from Tenant's use of its equipment. A copy of each of Tenant's permits or licenses shall be submitted to Landlord prior to the installation or operation of the equipment permitted or licenses thereunder.

        (j)    Tenant shall have the option to cancel this Article 35 upon three (3) months advance written notice to Landlord and after complying with all of the terms and conditions set forth in this Article.

        (k)   Notwithstanding anything to the contrary contained in this Article 35, the permitted use of the Equipment is for sending and receiving signals only. If Tenant breaches this use restriction, Landlord may avail itself of the remedies for default contained in the Lease or any other remedy available to Landlord by law or equity.

        (l)    All costs and expenses to be paid to Landlord by Tenant under the provisions of this Article 35 shall be considered additional rent under the terms of this Lease.

        37.    Option to Renew.    

        Tenant shall have the right, to be exercised as hereinafter provided, to renew this Lease for one (1) additional term (the "Extension Term") of five (5) years upon the following terms and conditions:

        (a)   Provided at the time of the exercise of this option and at the time of the commencement of the Extension Term, Tenant shall not then be in default under any of the terms and conditions of this Lease or have assigned or sublet any of the Premises to any unrelated or unaffiliated entities; and

29



        (b)   The renewal shall be upon the same terms and conditions as are in effect immediately prior to the expiration of the current Term, except for the amount of rent; and

        (c)   There shall be no further privilege of renewal beyond the Extension Term expressly set forth above; and

        (d)   Tenant's exercise of its renewal right shall be by the delivery to Landlord, at least twelve (12) months prior to the expiration of the then current Term, of a written election to exercise its renewal right (the "Extension Notice"); and

        (e)   The minimum fixed annual rent shall be adjusted in the first year of the Extension Term to the then current market rent for similar office space in the Chesterbrook Corporate Center, but in no event shall the minimum fixed annual rent during the Extension Term be less than the amount that was the minimum fixed rent in effect immediately prior to such Extension Term.

        38.    Additional Space.    

        Landlord agrees that, prior to the expiration of the term of the lease between Landlord and other tenants in the building, Landlord shall offer the space as shown on Exhibit "K" to Tenant (the "Additional Space"). Tenant shall have five (5) business days after receipt of Landlord's written notice to accept said offer. The rental rate shall be Tenant's then existing minimum fixed annual rent. Landlord shall not be obligated to offer the Additional Space to Tenant more than one time during the Term of this Lease.

        39.    Exterior Signage.    

        Provided Tenant occupies fifty percent (50%) or greater of the space in the Building, Landlord agrees that it shall (i) provide, at its sole cost and expense, identification of Tenant at the entrance drive, which Tenant identification shall be located adjacent to or below the identification sign of the Building. The size, type and location of the identification shall conform to the existing exterior signage as determined by Landlord; and (ii) not name the Building.

        40.    Quiet Enjoyment.    

        Tenant, upon paying the Fixed Rent, additional rent and all other charges herein provided for and observing and keeping all covenants, agreements and conditions of this Lease on its part to be kept, shall quietly have and enjoy the Premises during the term of this Lease without hindrance or molestation by anyone claiming by or through Landlord, subject, however, to the exceptions, reservations and conditions of this Lease.

        41.    Rights of Mortgage Holder.    

        If the holder of a mortgage covering the Premises shall have given prior written notice to Tenant that it is the holder of such mortgage and such notice includes the address at which notices to such mortgagee are to be sent, then Tenant agrees to give to such holder notice simultaneously with any notice given to Landlord to correct any default of Landlord as hereinabove provided and agrees that the holder of record of such mortgage shall have the right, within the greater of thirty (30) days thereafter or the same period of time accorded Landlord under this Lease after receipt of said notice, to correct or remedy such default before Tenant may take any action under this Lease by reason of such default.

        42.    Whole Agreement.    

        It is expressly understood and agreed by and between all the parties hereto that this Lease and any riders attached hereto and forming part hereof set forth all the promises, agreements, warranties, representations and understandings between Landlord and Tenant relative to the Premises and this leasehold, and that there are no promises, agreements, conditions, warranties, representations or understandings, either oral or written, between them other than as herein set forth. It is further understood and agreed that, except as herein otherwise provided, no subsequent alteration,

30


amendment, understanding or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them.

        IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year aforesaid.

LANDLORD:
FV OFFICE PARTNERS II, L.P.
a Delaware limited partnership
  TENANT:
TRAFFIC.COM
a Delaware corporation

By:

 

FVGP II, L.L.C., a Pennsylvania limited liability company, General Partner

 

By:

 

/s/  
JOHN V. HEALEY      
        Name:   John V. Healey
By:   /s/  ROBERT G. LEE      
Robert G. Lee
a Member
  Title:   Controller

31


WAIVER OF PRIOR HEARING CERTIFICATION

        The undersigned acknowledges that the above Lease authorizes and empowers Landlord, without prior notice or a prior hearing, to cause the entry of judgments against the undersigned for money and for possession of the leased premises and immediately thereafter, without prior notice or a prior hearing, to exercise post-judgment enforcement and execution remedies.

        The undersigned acknowledges that the undersigned has agreed to waive the undersigned's rights to prior notice and a hearing under the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania and all other applicable state and federal laws, in connection with Landlord's ability to cause the entry of judgments against the undersigned and immediately thereafter exercise Landlord's post-judgment enforcement and execution remedies (which may include, without limitation, seizure of bank accounts, sale of the undersigned's assets and removal of the undersigned from the leased premises by law enforcement officers). The undersigned's counsel has reviewed the legal impact of this waiver with the undersigned, and the undersigned acknowledges that the undersigned has freely waived such rights.

    TRAFFIC.COM

 

 

By:

 

/s/
JOHN V. HEALEY
    Name:   John V. Healey
    Title:   Controller

Dated: 6 - 9, 2000

 

 

 

 

CERTIFICATION BY COUNSEL

        The undersigned, counsel for Tenant in the above Lease, confirms to Landlord that I have reviewed with Tenant, the legal consequences of Tenant's agreement to the entry, without prior notice or a prior hearing, of confessed judgments against Tenant and to the immediate exercise, without prior notice or a prior hearing, of post-judgment execution and enforcement actions.

        

 

 

Name:

 

    


Dated:                        , 2000

 

 

 

 

EXHIBIT "A1"

PHASE I FLOOR PLAN


ART


ART


EXHIBIT "A2"
PHASE II FLOOR PLAN


ART


EXHIBIT "B"

DESCRIPTION OF THE LAND

851 DUPORTAIL ROAD—METES AND BOUNDS
Tredyffrin Township, Chester County, PA

        ALL THAT CERTAIN parcel or tract of land situate in the Tredyffrin Township, Chester County, Pennsylvania, bounded and described in accordance with a survey and map made for General Motors Corporation dated June 5, 1979 and last revised June 28, 1979 as prepared by Yerkes Associates, lnc., Consulting Engineers, as follows (hereinafter referred to as the Premises):

        BEGINNING at a point, a corner, on the Northwesterly side of Duportail Road (60.00 feet wide) said point being at point of curve of a 25.00 feet radius round corner connecting the Northwesterly side of Duportail Road with the Northeasterly side of Morris Drive (60.00 feet wide) thence from said beginning point, leaving Duportail Road by said 25.00 feet radius round corner, along a line curving to the right in a westerly direction, the arc distance of 39.27 feet to a tangent point on the Northeasterly side of Morris Drive, thence by same North 24 degrees 45 minutes West 501.03 feet to an iron pin, thence leaving Morris Drive by other land of Chesterbrook, the two following courses and distances

        CONTAINING five acres and one hundred and fifty one-thousandths of an acre (5.150 acres) be the same more or less

        BEING Chester County Tax Parcel 43-5-26.4

        BEING the same premises which Greenview Associates, a Pennsylvania Co-Partnership by Deed dated 6-29-1979 and recorded in Chester County, in Deed Book E-55 page 338 conveyed unto Chester County Industrial Development Authority.



EXHIBIT "C"

MEMORANDUM OF COMMENCEMENT DATE

        THIS MEMORANDUM OF COMMENCEMENT DATE made this            day of                        , 2000.

        FV OFFICE PARTNERS II, L.P. ("Landlord") and TRAFFIC.COM ("Tenant") are parties to a certain Agreement of Lease ("Lease") dated            , 2000 with respect to Premises identified as portions of the first and second floors.

        Pursuant of the Lease, Landlord and Tenant do hereby confirm that the Term of the Lease commenced                        , 2000 and, subject to such rights of renewal or extension, if any, as are expressly provided therein, shall expire                  ,        .

        IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum the day and year first above written.

LANDLORD:
FV OFFICE PARTNERS II, L.P.
a Delaware limited partnership
  TENANT:
TRAFFIC.COM
a Delaware corporation

By:

 

FVGP II, L.L.C., a Pennsylvania limited

 

By:

 
    liability company, General Partner    
        Name:  
         
By:       Title:  
   
Robert G. Lee
a Member
   


EXHIBIT "D"

SPACE PLAN

To be provided by Tenant by June 9, 2000


EXHIBIT "E"

STANDARD TENANT WORK

        Landlord shall provide Tenant an allowance of Five Hundred Seventy Three Thousand Four Hundred Dollars ($573,400.00) to be used for all hard and soft costs associated with the improvement of the Phase I Premises and an allowance of One Hundred Sixty Two Thousand Nine Hundred Seventy Six Dollars and Sixty Seven Cents ($162,976.67) to be used for all hard and soft costs associated with the improvement of the Phase II Premises. Tenant shall pay to Landlord's Construction Manager a construction management fee equal to three percent (3%) of the total cost of the Tenant work performed by Landlord.

A.    GENERAL CONSTRUCTION    

        Landlord shall furnish at no additional cost to Tenant the following standards of construction:

B.    ELECTRICAL CONSTRUCTION    

C.    HEATING, VENTILATING AND AIR-CONDITIONING    

        Furnish and install a complete year-round heating, ventilating, and air conditioning system to provide interior conditions to 78 degrees F. dry bulb and 50% relative humidity when outside conditions are 93 degrees F. dry bulb and 75 degrees F. wet bulb, and 68 degrees F. inside when outside



temperatures are 10 degrees F., provided that in any given room or area of Tenant's demised premises, the occupancy does not exceed one person for each 150 square feet, and total electric load does not exceed 5 watts per sq. ft. for all purposes, including lighting and power.

D.    TENANT'S FINISH WORK    

        1.     Landlord further agrees to approve or perform, at Tenant's request, upon submission by Tenant of acceptable plans and specifications any additional or non-standard work over and above that specified in Paragraphs A, B, and C of this Exhibit "E". Such work shall be performed by Landlord, at Tenant's sole expense, as a Tenant extra, or Tenant's contractors as herein below provided. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant shall fail to approve in writing any such estimate within five (5) working days the same shall be deemed disapproved in all respects by Tenant and Landlord shall not be authorized or obligated to proceed thereon. Tenant agrees to pay Landlord, promptly upon being billed therefore. Tenant agrees that the same shall be collectible as additional rent pursuant to the Lease and in default of payment thereof, Landlord shall (in addition to all other remedies) have the same rights as in the event of default of payment of rent.

        2.     Tenant may, at its option after occupancy of premises, employ its own subcontractors finishing trade work; such as, carpentry, millwork, cabinet work, carpeting and draperies as may be initially furnished and installed by Tenant in the demised premises, provided such subcontractors work in harmony with, and do not interfere with the labor employed by the Landlord, its contractors or any other tenant or their contractors, and otherwise comply with the provisions of the Lease, and provided Tenant's subcontractors accept the administrative supervision of Landlord's representative. Workmen's Compensation, public liability insurance and property damage insurance, with a Hold Harmless provision, all in amounts and with companies reasonably satisfactory to Landlord, shall be maintained by such finish trades subcontractors; certificates of such insurance and waivers of liens shall be furnished to Landlord prior to commencement of work.

E.    SCHEDULE OF DELIVERY OF TENANT'S DRAWINGS    

        1.     Tenant shall furnish Landlord, for its approval, the following complete descriptive information with drawings, including both Basic Construction and Finish Work as listed below:



        If Tenant fails to furnish such information within the time prescribed (or any further information within five (5) days after written demand), Landlord may complete the demised premises in a manner satisfactory to Landlord.

        Tenant may substitute material, equipment, and fixtures for those specified for Basic Construction with written consent of Landlord. Tenant shall pay Landlord the cost to Landlord for such substitute items which is in excess of such items included in Basic Construction. The cost to Tenant for such substitution shall be Landlord's cost for the substitute item plus 21% of Landlord's cost for Landlord's expenses and profit in the handling of the substitution. Tenant may also request Landlord to omit the installations of any item not therefore installed and, provided such omission shall not delay Landlord's work, Landlord shall not be obligated to install the same. Tenant shall not be entitled to any credit for any such item omitted against any additional item or any item of a different kind of character.

F.    WORK PERFORMED BY TENANT PRIOR TO COMMENCEMENT OF LEASE    

        Landlord may elect to permit Tenant and its agents to enter the demised premises prior to the date specified for the commencement of the term of said Lease in order that Tenant may perform through its own contractors such other work and decorations as Tenant may desire at the same time that Landlord's contractors are working in the space. The foregoing approval to enter prior to commencement of the term, however, is conditioned upon Tenant's workmen and mechanics working in harmony and not interfering with the labor employed by Landlord, Landlord's mechanics or contractors or by any other Tenant or their contractors and compliance with the terms of the Lease. If at any time, such entry shall cause disharmony or interference therewith, this license may be withdrawn by Landlord upon twenty-four (24) hours written notice to Tenant and further provided that Workmen's Compensation and Public Liability Insurance and Property Damage Insurance, with Hold Harmless provision, all in amounts and with companies and on forms satisfactory to us, shall be provided and at all times maintained by Tenant's contractors engaged in the performance of the work, and before proceeding with work, certificates of such insurance shall be furnished to Landlord.

        Such entry shall be deemed to be under all of the terms, covenants, provisions and conditions of the said Lease except as to the covenant to pay rent. Landlord shall not be liable in any way for any injury, loss or damage which may occur to any of Tenant's decorations or installations so made prior to the commencement of the term of the Lease, the same being solely at Tenant's risk.

        The provisions of these Interior Finish Specifications are specifically subject to the provisions of the Lease.


EXHIBIT "F"

CLEANING SPECIFICATIONS

        General cleaning: five nights per week, Monday through Friday.

DAILY:

WEEKLY:



EXHIBIT "G"

RULES AND REGULATIONS

        1.     The walkways, roadways, driveways, entrances, lobbies, passages, and stairways shall not be obstructed by Tenant or used by Tenant for any purposes other than ingress and egress from and to the Building and Tenant's offices. The parking areas shall be used only for the parking of automobiles of Tenant, its agents, employees and invitees while actually present in the Premises. Landlord shall in all cases retain the right to control or prevent access to all of the aforesaid areas of all persons whose presence, in the judgment of Landlord, shall be prejudicial to the safety, peace, character, or reputation of the Building, the property located therein or of any of the tenants.

        2.     The toilet rooms, water closets, sinks, faucets, plumbing or other service apparatus of any kind shall not be used by Tenant for any purposes other than those of which they were installed, and no sweepings, rubbish, rags, ashes, chemicals or other refuse or injurious substances shall be placed therein or used in connection therewith by Tenant or left by Tenant in the lobbies, passages, elevators or stairways. Nothing shall be thrown by Tenant or Tenant's employees nor be allowed by them to drop out of the windows or doors, or down the passages of the Building.

        3.     Nothing shall be placed by Tenant on the outside of the Building or on its window sills or projections, except the monument sign located on Duportail Road. Skylights, windows, doors and transoms shall not be covered or obstructed by Tenant, and no window shades, blinds, curtains, screens, storm windows, awnings or other materials shall be installed or placed on any of the windows or in any of the window spaces, except as approved in writing by Landlord.

        4.     No sign, lettering, insignia, advertisement, notice shall be inscribed, painted, installed or placed on any windows or in any window spaces or any other part of the outside or inside of the Building, except the sign described above, unless first approved in writing by Landlord. Names on or beside suite entrance doors shall be provided for Tenant by Landlord and not otherwise, and at Tenant's expense; in all instances, such names shall be of design and form first approved by Landlord.

        5.     Tenant shall not place additional locks upon any doors. The janitor and the manager of the Building may at all times keep a pass key, and he and other agents of the Landlord shall at all times be allowed admittance to the leased Premises for purposes permitted in Tenant's lease. Upon surrendering possession of the Premises at the termination of this Lease, Tenant shall deliver to Landlord all keys for the Premises.

        6.     The delivery of towels, ice, water, food, beverages, newspapers and other supplies will be permitted only under the direction, control and supervision of Landlord. No bicycles or similar vehicles will be allowed in the Building.

        7.     Tenant shall not do or commit, or suffer to be done or committed, any act or thing whereby, or in consequence whereof, the rights of other tenants will be obstructed or interfered with, or other tenants will in any other way be injured or annoyed, or whereby the Building will be damaged. Tenant shall not suffer or permit the Premises or any part thereof to be used in any manner or anything to be done therein or suffer or permit anything to be brought into or kept in the Premises which, in the judgment of Landlord, shall in any way impair or tend to impair the character, reputation or appearance of the Building as a first-class office building. Tenant shall not use or keep or permit to be used or kept in the Building any matter having an offensive odor, nor any ether, naphtha, phosphorous, benzole, kerosene, gasoline, benzine, camphene, fuel or other explosive or highly flammable material. Tenant shall neither bring, keep or use in the Building any chemical reagent except as the same may be components of commercial products normally used or consumed by occupants of office buildings. No birds, fish or other animals shall be brought into or kept in or about the Premises.

        8.     In order that the Premises may be kept in a good state of preservation and cleanliness, Tenant shall during the continuance of its possession permit Landlord's employees and contractors and no one else to clean the Premises. Landlord shall be in no way responsible to Tenant for any damage done to furniture or other effects of Tenant or others by any of Landlord's employees, or any other person, or



for any loss of Tenant's employees, or for any loss of property of any kind in or from the Premises, however occurring. Tenant shall see each day that the windows are closed, lights are turned off, and the doors securely locked before leaving the Premises.

        9.     If Tenant desires to introduce signaling, telegraphic, telephonic, protective alarm or other wires, cables, apparatus or devices, Landlord shall direct where and how the same are to be placed, and except as so directed, no installation, boring or cutting shall be permitted. Landlord shall have the right to prevent and to cut off the transmission of excessive or dangerous current of electricity or annoyances into or through the Building or Premises and to require the changing of wiring connections or layout at Tenant's expense, to the extent that Landlord may deem necessary, and further to require compliance with such reasonable rules as Landlord may establish relating thereto, and in the event of non-compliance with the requirements or rules, Landlord shall have the right immediately to cut wiring or to do what it considers necessary to remove the danger, annoyance or electrical interference with apparatus in any part of the Building. All wires and cables installed by Tenant must be clearly tagged at the distributing boards and junction boxes and elsewhere required by Landlord, with the number of the office to which said wires and cables lead, and the purpose for which the wires and cables respectively are used, together with the name of the concern, if any, operating same.

        10.   A directory on a bulletin board on the ground floor may be provided by Landlord, on which the name of Tenant may be placed.

        11.   No furniture, packages, equipment, supplies or merchandise of Tenant will be received in the Building other than directly into the Premises, or carried up or down in the elevators or stairways, except during such hours as shall be designated by Landlord, and Landlord in all cases shall also have the exclusive right to prescribe the method and manner in which the same shall be brought in or taken out of the Building. Landlord shall in all cases have the right to exclude from the Building heavy furniture, safes and other articles which may be hazardous or to require them to be located at designated places in the Premises. The cost of repairing any damage to the Building caused by taking in or out furniture, safes or any articles or any damage caused while the same shall be in the Premises, shall be paid by Tenant.

        12.   Without Landlord's written consent, nothing shall be fastened to, nor shall holes be drilled or nails or screws driven into walls or partitions; nor shall walls or partitions be painted, papered or otherwise covered or moved in any way or marked or broken; nor shall any connection be made to electric wires for running fans or motors or other apparatus, devices or equipment; nor shall machinery of any kind other than customary small business machines be allowed in the Premises; nor shall Tenant use any other method of heating, ventilating, air conditioning or air cooling than that provided by Landlord, except as approved by the Landlord. Telephones, switchboards and telephone wiring and equipment shall be placed only where designated by Landlord or as set forth in the Tenant Plan. No mechanics shall be allowed to work in or about the Building other than those employed by Landlord without the written consent of Landlord first having been obtained.

        13.   Landlord shall, in no case, be liable or responsible for the admission or exclusion of any person to or from the Building or access to the Premises. In case of invasion, hostile attack, insurrection, mob violence, riot, public excitement or other commotion, explosion, fire or any casualty, Landlord reserves the right to bar or limit access to the Building for the safety of occupants or protection of property.

        14.   Landlord reserves the right to rescind, suspend or modify any rules or regulations and to make such other rules or regulations as, in Landlord's judgment, may from time to time be needful for the safety, care, maintenance, operation and cleanliness of the Building as a first class office building, or for the preservation of good order therein. Notice of any action by Landlord referred to in this paragraph, given to Tenant, shall have the same force and effect as if originally made a part of the foregoing Lease. New rules or regulations will not, however, be unreasonably inconsistent with the proper use and enjoyment of the Premises by Tenant under the Lease.

        15.   The use of rooms as sleeping quarters is prohibited at all times.



        16.   Tenant shall keep the windows and doors of the Premises, including those openings on corridors and all doors between rooms or spaces entitled to receive heating, ventilating or air conditioning service and rooms and spaces not entitled to receive such service, closed during the respective times that the heating, ventilating or air conditioning system is operating, in order to conserve the service and effectiveness of the heating, ventilating or air conditioning system as the case may be. Tenant shall comply with all reasonable rules and regulations from time to time promulgated by Landlord to conserve such services.

        17.   Landlord reserves the right to require that the Premises or any portion thereof shall not be used by Tenant or others for an employment agency, or for securing employees other than those to be employed by the Tenant, or for the payment of salaries or wages to employees or persons who are not actually employed by the Tenant, nor for any other purpose except that specified in this Lease.

        18.   Landlord shall have the right to enter the Premises to put a "To Let" or similar notice upon the Premises, which notice shall not be removed or obliterated by the Tenant, during the six months previous to the expiration of the then current Term of this Lease, and any such entering shall not be treated as a deprivation of Tenant's use of the Premises or work an eviction of Tenant or a recession of this Lease.

        19.   No smoking of any kind shall be permitted on the Property except in the Premises or within enclosed automobiles or similar vehicles.

        20.   These rules and regulations are not intended to give Tenant any rights or claims in the event the Landlord does not enforce any of them against any other tenants or if Landlord does not have the right to enforce them against any other tenants and such non-enforcement will not constitute a waiver as to Tenant.


EXHIBIT "H"

FORM OF LETTER OF CREDIT

[Landlord]

        We hereby establish our Irrevocable Letter of Credit No.            in your favor for the account of                        up to an aggregate amount of $                               which is available by your draft(s) at sight drawn on                        Bank and accompanied by the following:

        1.     The original Letter of Credit and all amendments, if any.

        2.     Beneficiary's signed and notarized statement in the form of Annex "1" attached hereto which forms an integral part of this Letter of Credit.

        This Letter of Credit sets forth in full terms of our undertaking, and such undertaking shall not in any way be modified, amended or amplified by reference to any document, instrument or agreement referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any such document, instrument or agreement.

        Drafts drawn under this Letter of Credit must be marked: "Drawn Under                        Bank Letter of Credit No.            dated                        ."

        Partial draws under this Letter of Credit are permitted.

        We hereby engage with you that draft(s) drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon delivery of documents as specified above if presented to us on or before                        , when this Letter of Credit will expire. Draft and document(s) to be [delivered / mailed] to                        Bank, [address].

        Article 41 of the Uniform Customs and Practice for Documentary Credits (1993 Revision), Publication No. 500 shall not apply to this Letter of credit and, notwithstanding the provisions of Article 48 thereof, this Letter of Credit is transferable one or more times to a successor lessor under the Lease dated                        , between FV OFFICE PARTNERS II, L.P. and                        , as the same may be amended from time to time, or to any such lessor's mortgagee and the                        Bank only is authorized to act as the transferring bank.

        We shall not recognize any transfer of this Letter of Credit until this original Letter of Credit, together with any amendments, and signed and completed transfer form is received by us and our transfer charges are paid.

        Transfer charges are one-fourth (1/4) of one percent (1%) of the transferred amount, minimum USD 150.00, maximum USD 350.00.

        This Letter of Credit contains the entire understanding of all parties named in this Letter of Credit. Such understandings shall not in any way be modified, amended or amplified by reference by any document, instrument or agreement referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any such document, instrument or agreement.

    Very truly yours,

 

 

[BANK]

 

 

By:

 
     
Authorized Officer

ANNEX "1"
TO
LETTER OF CREDIT

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF

        On this,            day of                        , 2000, before me, the subscriber, a notary public in and for the Commonwealth and County aforesaid, personally appeared                        , who being duly sworn according to law, represents, deposes and says:

        1.     He is a representative of FV Office Partners II, L.P., a Delaware limited partnership, and is duly authorized to make the declaration contained herein.

        2.     FV Office Partners II, L.P. is entitled to draw upon this Letter of Credit in the amount of $                                           either (I) because this Letter of Credit will expire within twenty (20) business days or (II) pursuant to the provisions of that certain Agreement of Lease dated as of                        , as amended, between                         , as Tenant, and FV Office Partners II, L.P., as Landlord.

        Witness my hand and seal this day and year aforesaid.

    
      
Notary Public   FV Office Partners II, L.P.
     
My commission expires:    

EXHIBIT "I"

ROOFTOP EQUIPMENT

Description:

All equipment to be mounted in Landlord approved locations on the roof.


EXHIBIT "J"

FORM OF LANDLORD'S CONSENT TO SUBLEASE

        THIS AGREEMENT made as of this            day of                        , 20    , by and among FV OFFICE PARTNERS II, L.P. (hereinafter "Landlord"), and                         a                         corporation having its principal office at                        (hereinafter "Tenant"), the Tenant under a lease dated as of                        , 20    , (which lease as heretofore or hereafter amended is hereinafter called the "Main Lease"), under which the Landlord demised to the Tenant a portion of the first and second floors in the building known as 851 Duportail Road, Wayne, PA 19087 (hereinafter "Premises") and                        a                         corporation having an office at                        (hereinafter "Subtenant").

        The Landlord hereby consents to the subletting by the Tenant to the Subtenant, pursuant to a sublease (hereinafter "Sublease") dated as of                        , 20    , a copy of which is attached hereto, of a portion of the Premises as shown and marked on the floor plan attached to the Sublease (which space is hereinafter referred to as the "Sublet Space"), such consent being subject to and upon the following terms and conditions, to each of which Tenant and Subtenant expressly agree:

        1.     Nothing contained in this agreement shall either

        2.     This consent is not assignable.

        3.     The Sublease shall be subject and subordinate at all times to the Main Lease and all of its provisions, covenants and conditions. In case of any conflict between the provisions of the Main Lease and the provisions of the Sublease, the provisions of the Main Lease shall prevail unaffected by the Sublease.

        4.     Neither the Sublease nor this consent thereto shall release or discharge the Tenant from any liability under the Main Lease and Tenant shall remain liable and responsible for the full performance and observance of all provisions, covenants and conditions set forth in the Main Lease on the part of Tenant to be performed and observed. Any breach or violation of any provision of the Main Lease by Subtenant shall be deemed to be and shall constitute a default by Tenant in fulfilling such provision.

        5.     This consent by Landlord shall not be construed as a consent by Landlord to any further subletting either by Tenant or Subtenant. The Sublease may not be assigned, renewed or extended nor shall the Premises or Sublet Space, or any part thereof, be further sublet without the prior written consent of the Landlord thereto in each instance.

        6.     Upon the expiration or any earlier termination of the term of the Main Lease, or in case of the surrender of the Main Lease by Tenant to Landlord, except as provided in the next succeeding sentence, the Sublease and its term shall expire and come to an end as of the effective date of such expiration, termination, or surrender and Subtenant shall vacate the Sublet Space on or before such date. If the Main Lease shall expire or terminate during the term of the Sublease for any reason other than condemnation or destruction by fire or other cause, or if Tenant shall surrender the Main Lease to Landlord during the term of the Sublease, Landlord, in its sole discretion, upon written notice given to Tenant and Subtenant not more than thirty (30) days after the effective date of such expiration,



termination or surrender, without any additional or further agreement of any kind on the part of Subtenant, may elect to continue the Sublease with the same force and effect as if Landlord as lessor and Subtenant as lessee had entered in to a lease as of such effective date for a term equal to the then unexpired term of the Sublease and containing the same terms and conditions as those contained in the Sublease, Subtenant shall attorn to Landlord and Landlord and Subtenant shall have the same rights, obligations and remedies thereunder as were had by Tenant and Subtenant thereunder prior to such effective date, respectively, except that in no event shall Landlord be (1) liable for any act or omission by Tenant, or (2) subject to any offsets or defenses which Subtenant had or might have against Tenant, (3) bound by any rent or additional rent or other payment paid by Subtenant to Tenant in advance or (4) bound by any amendment to the Sublease not consented to by Landlord. Upon expiration of the Sublease pursuant to the provisions of the first sentence of this Article 6, in the event of the failure of Subtenant to vacate the Sublet Space as therein provided, Landlord shall be entitled to all the rights and remedies available to a landlord against a tenant holding over after the expiration of a term.

        7.     Both the Tenant and Subtenant shall be and continue to be liable for all bills rendered by Landlord for charges incurred by or imposed upon Subtenant for services rendered and materials supplied to the Sublet Space.

        8.     Any notice or communication which any party hereto may desire or be required to give to any other party under or with respect to this Agreement shall be given by prepaid certified mail addressed to such other party, in the case of Landlord at its address c/o Fox Realty Co., 851 Duportail Road, Suite 201, Chesterbrook, PA 19087, and in the case of Tenant or Subtenant at the building in which the Premises are located, or in any case at such other address as such other party may have designated by notice given in accordance with the provisions of this Article 8. The time when such notice or communication shall be deemed to have been given shall be the time same shall be so mailed.

        9.     Tenant and Subtenant shall indemnify and hold Landlord harmless from and against any and all claims by any broker, agent or other person, or by any entity, claiming a commission or other form of compensation from Landlord by virtue of such broker, agent, or other person or entity having been involved in any way with regard to the Sublease. This provision shall survive the termination of the Sublease.

        10.   This Agreement shall be construed in accordance with the laws of the State of Pennsylvania, contains the entire agreement of the parties hereto respect to the subject matter hereof and may not be changed or terminated orally or by course of conduct.



        IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first above written.

    LANDLORD:
FV OFFICE PARTNERS II, L.P.

a Delaware limited partnership

 

 

By:

FVGP II, L.L.C., a Pennsylvania limited
liability company, General Partner

 

 

By:

 
     
Robert G. Lee
a Member

 

 

TENANT:

 

 



 

 

By:

 
     

 

 

Name:

 
     

 

 

Title:

 
     

 

 

SUBTENANT:

 

 



 

 

By:

 
     

 

 

Name:

 
     

 

 

Title:

 
     

EXHIBIT "K"

ADDITIONAL SPACE


ART


ART


Exhibit "L"—Additional Rider

        Traffic.com assumes that the Landlord will make commercially reasonable efforts to assure that the noise level in the premises located at 851 Duportail Road, Wayne, PA, 19087 will be comparable to the noise level in the current demised premises located at 640 Lee Road, Wayne, PA 19087.*

/s/  JOE REED      
Joe Reed, CIO, traffic.com
  6/9/00
Date

/s/  
[ILLEGIBLE]      
Landlord

 

6/9/00

Date
FV OFFICE PARTNERS II, L.P.
a Delaware limited partnership
   

By:

 

FVGP II, L.L.C., a Pennsylvania limited
liability company, General Partner

 

 

By:

 

Robert G. Lee
a Member

 

 

*
and that the sound levels shall be based on ASHRAE standards and shall be NC-35 or RC-35 or lower utilizing a typical office standard with carpeting and drop ceiling.






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EXHIBIT "C" MEMORANDUM OF COMMENCEMENT DATE
EXHIBIT "D" SPACE PLAN To be provided by Tenant by June 9, 2000

Dates Referenced Herein

This ‘S-1’ Filing    Date    Other Filings
Filed as of:8/31/05None on these Dates
Filed on:8/30/05
4/1/01
1/30/01
9/1/00
6/9/00
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