EXHIBIT 10.33
LEASE AGREEMENT
BETWEEN
SWEETHEART CUP COMPANY INC.
AND
EARTHSHELL CORPORATION
PREMISES: 0000 XXXXXXXXXXXX XXXX
XXXXXX XXXXX, XXXXXXXX
(ST. XXXXXX FACILITY)
TABLE OF CONTENTS
ARTICLE 1 - PREMISES AND TERM OF LEASE.....................................
ARTICLE 2 - RENT...........................................................
ARTICLE 3 - IMPOSITIONS....................................................
ARTICLE 4 - UTILITIES......................................................
ARTICLE 5 - DEPOSITS FOR IMPOSITIONS AND INSURANCE.........................
ARTICLE 6 - LATE CHARGES...................................................
ARTICLE 7 - INSURANCE......................................................
ARTICLE 8 - DAMAGE OR DESTRUCTION AND USE OF CASUALTY INSURANCE PROCEEDS...
ARTICLE 9 - CONDEMNATION...................................................
ARTICLE 10 - REPAIRS AND MAINTENANCE........................................
ARTICLE 11 - CHANGES, ALTERATIONS AND IMPROVEMENTS..........................
ARTICLE 12 - GOVERNMENTAL REQUIREMENTS AND INSURANCE REQUIREMENTS...........
ARTICLE 13 - BUILDING EQUIPMENT.............................................
ARTICLE 14 - DISCHARGE OF LIENS; BONDS......................................
ARTICLE 15 - ASSIGNMENT AND SUBLETTING......................................
ARTICLE 16 - ESTOPPEL, ATTORNMENT AND SUBORDINATION.........................
ARTICLE 17 - INDEMNIFICATION ...............................................
ARTICLE 18 - PERMITTED USE; NO UNLAWFUL OCCUPANCY...........................
ARTICLE 19 - ENVIRONMENTAL MATTERS..........................................
ARTICLE 20 - EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS, REMEDIES, ETC......
ARTICLE 21 - NOTICES........................................................
ARTICLE 22 - HOLDING OVER; SURRENDER........................................
ARTICLE 23 - SECURITY.......................................................
ARTICLE 24 - NO BROKER......................................................
ARTICLE 25 - NO REPRESENTATIONS ............................................
ARTICLE 26 - MISCELLANEOUS..................................................
LIST OF EXHIBITS
EXHIBIT A PREMISES
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), dated as of July 11, 2003 (the
"Effective Date"), is entered into between SWEETHEART CUP COMPANY INC.
("Landlord"), a Delaware corporation, having an office at 00000 Xxxxxxxxxxxx
Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 and EARTHSHELL CORPORATION, a Delaware
corporation, having an office at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx
00000 ("Tenant"), with reference to the following facts:
RECITALS
Landlord and Tenant are parties to (a) that certain Operating
Agreement for the Production of Hinged Sandwich Containers for XxXxxxxx'x
Corporation, dated as of October 16, 1997 (the "Operating Agreement"), and (b)
that certain Termination Agreement, dated as of the Effective Date (the
"Termination Agreement"). Capitalized terms appearing in this Agreement and not
defined herein shall have the meanings ascribed to such terms in the Operating
Agreement or the Termination Agreement, as the case may be.
W I T N E S S E T H :
ARTICLE 1
PREMISES AND TERM OF LEASE
SECTION 1.01. PREMISES AND TERM. Landlord, for and in consideration
of the rentals to be paid and all of the terms, covenants and agreements
hereinafter set forth, to be kept, observed and performed by Tenant, does hereby
demise and lease to Tenant and Tenant does hereby hire and take from Landlord,
subject to the terms, covenants, conditions and reservations hereof:
the parcel of land (the "Land") situated at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx (St. Xxxxxx
Facility), as more particularly described in EXHIBIT A
annexed hereto and made a part hereof and the building
constructed on the Land (the "Building") (the Land and the
Building being herein sometimes collectively referred to as
the "Premises");
TOGETHER WITH, on a non-exclusive basis and in common with Landlord,
all easements, appurtenances and other rights and privileges now or hereafter
belonging or appertaining to the Premises.
TO HAVE AND TO HOLD the Premises unto Tenant, for a term of six (6)
months (the "Term") commencing on July 1, 2003 and expiring on December 31,
2003, both dates inclusive, unless the Term shall be sooner terminated as herein
provided.
ARTICLE 2
RENT
SECTION 2.01. RENT. Throughout the Term, Tenant shall pay to
Landlord, at the address of Landlord set forth above, or to such other address
or person(s) as Landlord shall from time-to-time designate, rent at the monthly
rental rate of Eighty-Three Thousand ($83,000) Dollars (herein sometimes called
the "Base Rent"). Base Rent shall be paid without any prior demand and without
any deduction or setoff in equal monthly installments in advance on the first
day of each month; provided, however, that Base Rent for the month of July, 2003
shall be payable upon execution and delivery of this Lease.
SECTION 2.02. PARTIAL PAYMENT. No payment by Tenant nor receipt by
Landlord of a lesser amount than may be required to be paid hereunder shall be
deemed to be other than on account of any such payment, nor shall any
endorsement or statement on any check or any letter accompanying any check
tendered as payment be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such payment due or pursue any other right or remedy in this Lease
provided in respect thereof or otherwise.
SECTION 2.03. ADDITIONAL RENT. Except for Base Rent, all charges,
costs, expenses and sums of any kind which Tenant ahs assumed or agreed to pay
hereunder, and all other sums which may become due by reason of any default of
Tenant or any failure on Tenant's part to perform or comply with the agreements,
terms, covenants and conditions of this Lease on Tenant's part to be performed
or complied with, and each and every item thereof, shall be and be deemed to be
"Additional Rent" hereunder and, in the event of the non-payment thereof,
Landlord (in addition to and not in limitation of its other rights and remedies
hereunder) shall have all of the rights and remedies in respect thereof as are
herein or by law provided in the case of the non-payment of Base Rent. (Base
Rent and Additional Rent are herein sometimes collectively referred to as
"Rent".)
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ARTICLE 3
IMPOSITIONS
SECTION 3.01. PERSONAL PROPERTY TAXES. Tenant shall pay all taxes and
assessments levied or imposed upon personal property owned by Tenant, including,
without limitation machinery, equipment, furnishings, inventory and other
personal property owned and/or leased by Tenant, directly to the taxing
authorities levying or imposing the same before the same shall become
delinquent.
ARTICLE 4
UTILITIES
SECTION 4.01. UTILITIES. Tenant covenants and agrees to pay directly
to the public or private utility company or companies, as Additional Rent, as
and when same shall become due and payable, all charges for utilities,
including, without limitation, air conditioning, heat, water, sewerage, fuel
oil, gas, steam, hot water, light, telephone and communication services,
furnished to the Premises. Tenant covenants and agrees to pay to Landlord, as
Additional Rent, all charges for electricity furnished to the Premises. Such
Additional Rent shall be invoiced monthly and be payable within ten (10) days
following the applicable invoice date. Landlord shall have no obligation to
provide any such utility services, nor shall it incur any liability for any loss
or damage resulting, directly or indirectly, from any failure or delay by any
utility supplier to furnish any such services. The provisions of this Article
shall survive the expiration or earlier termination of this Lease.
ARTICLE 5
Intentionally Omitted
ARTICLE 6
LATE CHARGES
SECTION 6.01. LATE PAYMENT. If payment of any item of Rental shall
become overdue for ten (10) days beyond the date on which it is due and payable
as in this Lease provided, Tenant agrees to pay to Landlord, as and for an
agreed upon late charge (and not as a penalty), an amount equal to $.03 for
every dollar thereof overdue, which shall, without further notice or demand by
Landlord, immediately become due and payable to Landlord as liquidated damages
for the additional administrative, costs and expenses incurred by Landlord by
reason of Tenant's failure to make prompt payment. Nothing contained in this
Article 6 is intended in any way to extend any grace periods or notice periods
provided for elsewhere in this Lease. All amounts payable to Landlord pursuant
to this Article 6 shall be considered Additional Rent.
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ARTICLE 7
INSURANCE
SECTION 7.01. BUILDING, ETC. (a) Throughout the Term, Landlord, at
its election and sole cost and expense, may provide and maintain in force in
respect of the Premises, insurance on an "all risk" basis covering the Building
including, without limitation, flood insurance, fire insurance and insurance
against loss or damage by lightning, windstorm, tornado, hail, explosion, riot,
riot attending a strike, civil commotion, aircraft, vehicle, smoke, vandalism,
malicious mischief and other hazards of whatsoever kind now or hereafter covered
by the usual "all risk" policy, and damage by water; and
(b) Throughout the Term, Tenant, at its sole cost and expense, shall provide and
maintain in force in respect of the Premises, all of the following:
(i) Worker's Compensation and all other statutory forms of insurance now
or hereafter prescribed by law and in limits not less than the
statutorily required amounts, covering all persons employed by
Tenant in connection with the operations of Tenant conducted at the
Premises or by Tenant or others in connection with any construction
thereon, which may be provided by Tenant for all persons employed by
Tenant, or by Tenant's contractors for all persons employed by such
contractors;
(ii) Insurance against liability for bodily and personal injury, death
and Premises damage, it being agreed that such insurance shall be at
least in the limits set forth below or in such higher limits as may
from time to time be reasonably required by Landlord. Such liability
insurance coverage shall be written on a Comprehensive General
Public Liability form (including, without limitation, motor vehicle
liability for all owned, non-owned and hired vehicles and Premises
damage coverage), and containing the so-called "occurrence clause",
covering specifically all occurrences in, on or about the Premises,
including all sidewalks adjoining the Premises. All insurance
against liability for bodily and personal injury, death and Premises
damage, shall be written for a combined single limit of not less
than $3,000,000 for any single occurrence; and a minimum combined
single limit of $1,000,000 shall be written for Water Damage Legal
Liability and Sprinkler Leakage Legal Liability; and
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(iii) Insurance on an "all risk" basis covering Tenant's personal property
and trade fixtures in the Premises in an amount not less than one
hundred (100%) percent of the full replacement cost of such property
and fixtures.
(c) All insurance obtained or caused to be obtained by Tenant, as required
by this Section 7.01 (except for the coverage described in subsections (b)(i)
and (b)(iii) of this Section), shall be carried in favor of Landlord and Tenant,
as their respective interests may appear, and, in respect of any mortgagee of
the Premises. Such insurance, (1) in the case of Premises insurance or insurance
covering any economic loss resulting from any risks covered by any such Premises
insurance, shall name each such mortgagee under a standard State of Maryland
mortgagee endorsement, and (2) in the case of the insurance described in
subsection (b)(ii) of this Section 7.01, name each such mortgagee as an
additional insured, as its interest may appear.
SECTION 7.02. PROCEEDS; MISCELLANEOUS.
(a) The proceeds under all policies, if any, maintained pursuant to
Section 7.01(a) of this Lease, insuring against damage or destruction of the
Premises by fire or other casualty, shall be payable to Landlord and/or its
mortgagee, subject to the provisions of this Lease, and all policies shall
contain a provision to such effect. All insurance required by any other
provision of this Lease shall be in such form and shall be issued by responsible
insurance companies licensed to do business in the State of Maryland, as are
reasonably acceptable to Landlord. All policies referred to in this Lease shall
be procured, or caused to be procured, for periods of not less than one (1)
year. Such insurance may be carried under blanket policies; provided, however,
that coverage for the Premises is separately stated and will not be diminished
or depleted through occurrences at other locations. Duplicate originals of all
such policies and endorsements thereto and evidence that the premiums therefor
have been paid in full shall be delivered to all parties required hereby to be
insured thereunder concurrently herewith. If either party fails to give the
required certificate within ten (10) days after notice of demand for it, the
other party may obtain and pay for that insurance and receive reimbursement from
the party required to have the insurance. Premiums on policies shall not be
financed without Landlord's consent in each instance.
(b) Tenant shall not carry any additional or separate insurance
(other than liability insurance) concurrent in form or contributing in the event
of loss with that required by this Lease to be furnished by or at Tenant's cost
and expense, or in excess of the amounts required by this Lease, unless
Landlord, Tenant and any mortgagee are included therein as insureds with loss
payable as provided in this Lease (and any such policy that fails to have such
inclusion shall, as between Landlord and Tenant, be deemed to have same). Tenant
shall promptly notify Landlord if such additional or separate insurance is
carried and shall cause originals or copies of the same to be delivered as
required in this Lease.
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(c) Tenant shall not violate or permit to be violated any of the
conditions or provisions of any policies procured by Landlord with respect to
the Premises and Tenant shall timely perform and satisfy or cause to be
performed and satisfied the requirements and recommendations of the companies
writing such policies (collectively, "Insurance Requirements") so that at all
times companies of good standing shall be willing to write and/or continue such
insurance.
(d) Every policy of insurance required to be obtained by Tenant
hereunder shall provide that no cancellation, material change or reduction
thereof shall be effective until at least thirty (30) days after receipt of
written notice thereof by all parties insured thereunder.
(e) Each Premises and casualty insurance policy and every policy
insuring an economic loss resulting from any risks covered by any such Premises
and casualty insurance (whether or not required to be carried hereunder), and
each certificate or memorandum thereof, shall contain a clause or endorsement,
if obtainable (whether or not additional premium shall be charged therefor)
whereby the insurance company waives all rights of subrogation against Landlord
and Tenant, whether or not insured parties thereunder, or consents to the
release of liability among all such parties. The parties hereby release each
other from any and all liability for loss or damage covered by such insurance
under a policy containing such a clause or endorsement to the extent of any
proceeds paid thereunder.
SECTION 7.03. REIMBURSEMENT OF LANDLORD. Tenant shall pay to Landlord
(or, at Tenant's election, directly to the insurer), as Additional Rent, the
costs of the insurance coverage required to be maintained by Landlord pursuant
to Section 7.01, such payment to be made within thirty (30) days after receipt
by Tenant of invoices.
ARTICLE 8
DAMAGE OR DESTRUCTION AND
USE OF CASUALTY INSURANCE PROCEEDS
SECTION 8.01. CASUALTY. If all or substantially all of the Building
should be damaged or destroyed by fire or other casualty, this Lease shall
terminate as of the date of such damage or destruction and Base Rent shall be
apportioned as of the date of such termination.
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SECTION 8.02. PARTIAL DAMAGE. If the Building should be damaged only
to such extent that the Building is unfit for Tenant's use and occupancy, the
Base Rent shall be abated proportionately on the basis of the size of the floor
area of the Building that is damaged (e.g., the number of square feet of floor
area of the Building that is damaged compared to the total square footage of the
floor area of the Building) from the date of the casualty, but only during the
period the Building is unfit for occupancy, and only to the extent that Landlord
actually receives proceeds of rent or business interruption insurance with
respect to such damage.
SECTION 8.03. TENANT'S FAULT. If the Premises or any portion thereof
is damaged as a direct result of the negligence or breach of this Lease by
Tenant or any of Tenant's Parties (as hereinafter defined), Rent shall not be
reduced during the repair of such damage and Tenant shall be liable to Landlord
for the cost of the repair caused thereby except to the extent that Rent which
would be lost and/or such costs are covered by insurance proceeds available from
policies of insurance required to be maintained pursuant to the provisions of
this Lease (or which would have been available but for Tenant's failure to
maintain such insurance ).
ARTICLE 9
CONDEMNATION
SECTION 9.01. TOTAL CONDEMNATION. If all of the Premises are
condemned by eminent domain, or sold under threat of condemnation for any public
or quasi-public use or purpose ("Condemned" or "Condemnation"), this Lease shall
terminate as of the earlier of the date the condemning authority takes title to
or possession of the Premises, and Rent shall be adjusted to the date of
termination.
SECTION 9.02. PARTIAL CONDEMNATION. If any portion of the Premises is
Condemned and Tenant's ability to use the balance of the Premises is no longer
feasible, as reasonably determined by Landlord and Tenant, Landlord and Tenant
shall each have the option of either (a) keeping this Lease in force and effect
or (b) terminating this Lease as of the earlier of the date title vests in the
condemning authority or as of the date an order of immediate possession is
issued and Rent shall be adjusted to the date of termination. If such partial
condemnation and Tenant's ability to use the balance of the Premises is
feasible, the portion thereof lost in such condemnation, this Lease shall
continue in full force and effect except that after the date of such title
vesting, Rent shall be abated proportionately in the manner set forth in Section
8.02.
SECTION 9.03. AWARD. If the Premises are wholly or partially
Condemned, Landlord shall be entitled to the entire award paid for such
condemnation, and Tenant waives any claim to any part of the award from Landlord
or the condemning authority; provided, however, that Tenant shall have the right
to recover from the condemning authority such compensation as may be separately
awarded to Tenant in connection with costs in removing Tenant's equipment to a
new location, provided that the same shall not reduce the amount of the award or
other compensation otherwise recoverable by Landlord.
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ARTICLE 10
REPAIRS
SECTION 10.01. TENANT REPAIRS. Tenant, at its sole cost and expense,
shall make repairs to the Premises occasioned by (a) the acts, negligence or
omissions of Tenant, its employees, agents or other invitees; and/or (b) the
removal of the EarthShell Equipment from the Premises. In the event that Tenant
fails to commence and proceed with its maintenance and repair obligations under
this Lease, which failure continues beyond thirty (30) days following Tenant's
receipt of notice from Landlord stating with particularity the nature of the
failure or in the event of an emergency, Landlord shall have the right, after
notice (if practicable under the circumstances) to Tenant, to enter the Premises
and perform such repairs at Tenant's sole cost and expense.
ARTICLE 11
CHANGES, ALTERATIONS AND IMPROVEMENTS
SECTION 11.01. TRADE FIXTURES; ALTERATIONS. Tenant shall not, under
any circumstances, make, construct, nor allow to be constructed, any alterations
or physical additions ("Improvements") in, about or to the Premises
SECTION 11.02. DAMAGE; REMOVAL. Tenant shall repair all damage to the
Premises caused by the installation or removal of Tenant's trade fixtures,
equipment, furniture and alterations. Upon the expiration or earlier termination
of this Lease, Tenant shall (a) disconnect from utilities and remove any and all
trade fixtures, equipment, and partitions (except those partitions creating the
mixer room and storage rooms) made or installed by or for Tenant prior to the
Effective Date, including, without limitation, mixing towers and thermo formers;
and (b) seal, and make water-tight, all roof and other penetrations made by
Tenant as required by Section 22.02 hereof. All such removals and restoration
shall be accomplished with reasonable care so as not to cause any damage to the
Premises.
SECTION 11.03. LIENS. Tenant shall keep the Premises free of all
mechanics' and materialmen's liens in connection with any labor, supplies or
services furnished at Tenant's request. If any lien is filed, Tenant shall cause
such lien to be released or removed within ten (10) days after the date of
filing, and if Tenant fails to do so, Landlord may take such action as may be
necessary to remove such lien and Tenant shall pay Landlord such amounts
expended by Landlord together with interest thereon at the Applicable Interest
Rate from the date of expenditure. The provisions of this Section and Article 14
hereof shall survive the expiration or early termination of this Lease.
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ARTICLE 12
Intentionally Omitted
ARTICLE 13
BUILDING EQUIPMENT
SECTION 13.01. BUILDING EQUIPMENT. Tenant shall not have the right,
power or authority to, and shall not, without the prior consent of Landlord in
each instance, remove or permit the removal of any Building machinery, equipment
or fixtures used in the operation of the Premises (collectively, "Building
Equipment") from the Premises.
ARTICLE 14
DISCHARGE OF LIENS; BONDS
SECTION 14.01. NO LIENS. Tenant shall not create, suffer or permit to
be created or to remain, any lien, encumbrance or charge upon the Premises, or
any part thereof or interest therein, or this Lease, and Tenant shall not suffer
any other matter or thing whereby the estate, rights or interests of Landlord in
the Premises, or any part thereof or interest therein, or in this Lease might be
impaired. In any event, Tenant shall have no power to do any act or make any
contract which may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversion or other estate of Landlord, or upon any interest
of Landlord in the Premises.
SECTION 14.02. DISCHARGE OF LIENS. If any mechanic's, laborer's,
materialman's or other lien at any time shall be filed or permitted to exist
against the Premises by reason of any work, labor or services performed or
materials furnished, or claimed to have been performed or furnished, to or on
behalf of Tenant or those claiming under Tenant, Tenant, within twenty (20) days
after the filing thereof, shall cause the same to be vacated or discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. If Tenant shall fail to cause such lien to be vacated or discharged
within such period, Landlord, in addition to any other right or remedy of
Landlord hereunder, may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, or otherwise. Any amount so paid
by Landlord, and all reasonable costs and expenses, including, but not limited
to, reasonable attorneys' fees and disbursements, incurred by Landlord in
connection therewith, together with interest thereon at the Lease from the
respective dates of Landlord's making of the payment or incurring of the costs
and expenses, shall constitute Additional Rent payable by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand.
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SECTION 14.03. NO LIEN RIGHTS. Nothing contained in this Lease shall
grant or be deemed to have granted to Tenant any authority to bind Landlord to
any contract or to create any other obligation binding on Landlord regardless of
whether such contract or obligation may be the foundation for any lien, mortgage
or other encumbrance upon the estate of Landlord in the Premises.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
SECTION 15.01. ASSIGNMENT AND SUBLETTING. Tenant shall not assign or
otherwise transfer its interest in this Lease, whether voluntarily or
involuntarily or by operation of law, nor sublease all or any part of the
Premises without Landlord's prior approval, which may be granted or refused in
Landlord's sole discretion. The merger of Tenant with any other entity or the
transfer of any controlling or managing ownership or beneficial interest in
Tenant, or the assignment of a substantial portion of the assets of Tenant
whether or not located at the Premises, shall constitute an assignment
hereunder.
ARTICLE 16
ATTORNMENT AND SUBORDINATION
SECTION 16.01. SUBORDINATION. This Lease shall be subject and
subordinate to all ground leases and the lien of all mortgages and deeds of
trust which now or hereafter affect the Premises or Landlord's interest therein,
and all amendments thereto, all without the necessity of Tenant's executing
further instruments to effect such subordination. Tenant shall execute and
deliver to Landlord within thirty (30) days after Landlord's request whatever
documentation that may reasonably be required to further effect the provisions
of this Section including a Subordination and Attornment Agreement in such form
as may be acceptable to the lender.
SECTION 16.02. ATTORNMENT. In the event of a foreclosure proceeding
and/or the exercise of the power of sale under any mortgage or deed of trust,
Tenant shall, if requested, attorn to the purchaser thereupon and recognize such
purchaser as landlord under this Lease and shall execute and deliver to such
purchaser, such other form as may be reasonably acceptable to such purchaser,
lender and Tenant.
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ARTICLE 17
INDEMNIFICATION
SECTION 17.01. TENANT'S INDEMNITY. Tenant shall indemnify, protect,
defend (by counsel reasonably acceptable to Landlord) and hold harmless Landlord
and the Landlord's Parties (as hereinafter defined) and each of their successors
and assigns from and against any and all claims, liabilities, judgments,
demands, causes of action, losses, damages, costs and expenses, including
reasonable attorneys' fees, for damage to any property or injury to or death of
any person arising from or out of (a) the negligence or willful misconduct of
Tenant, or the Tenant's Parties (as hereinafter defined) in, upon or about the
Premises, (b) any default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or (c) Tenant's use or occupancy
of the Premises, except to the extent caused by the negligence or willful
misconduct of the party to be indemnified or its agents, employees, contractors
or invitees. The obligations of Tenant under this Section 17.01 shall survive
the expiration or early termination of this Lease. The term "Landlord's Parties"
means Landlord and its partners, members, shareholders, officers, directors,
employees, agents, contractors, invitees and lenders.
SECTION 17.02. LANDLORD'S INDEMNITY. Landlord shall indemnify,
protect, defend (by counsel reasonably acceptable to Tenant) and hold harmless
Tenant and the Tenant's Parties, and each of their successors and assigns from
and against any and all claims, liabilities, judgments, demands, causes of
action, losses, damages, costs and expenses, including reasonable attorneys'
fees, for damage to any property or injury to or death of any person arising
from or out of (a) the negligence or willful misconduct of Landlord, or the
Landlord's Parties in, upon or about the Premises, (b) any default in the
performance of any obligation on Landlord's part to be performed under the terms
of this Lease, or (c) Landlord's entry or work or things done by Landlord in or
about the Premises, except to the extent caused by the negligence or willful
misconduct of the party to be indemnified or its agents, employees, contractors
or invitees. The obligations of Landlord under this Section 17.02 shall survive
the expiration or early termination of this Lease. The term "Tenant's Parties"
means Tenant and its partners, members, shareholders, officers, directors,
employees, agents, contractors, invitees and lenders.
SECTION 17.03. JOINT RESPONSIBILITY. When the liability is caused by
the joint negligence or willful misconduct of the indemnifying party and the
indemnified party or the indemnifying party and a third party which is not an
agent, employee or invitee of the indemnifying party, the indemnifying party's
duty to defend, indemnify, and hold harmless under either Section 17.01 or
17.02, shall be in proportion to the indemnifying party's allocable share of the
joint negligence or willful misconduct.
SECTION 17.04. RELEASE OF CLAIMS. Notwithstanding the provisions of
Sections 17.01 and 17.02, the parties hereby release each other from any claims
either party has against the other hereunder; such release being limited,
however, to the extent the claim is covered by the indemnified party's insurance
or the insurance that would have been available but for the indemnified party's
failure to maintain the insurance coverages required under this Lease, whichever
is greater.
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SECTION 17.05. LIMITATION OF LANDLORD'S LIABILITY. If the Premises
are conveyed by Landlord or the Landlord's Parties, voluntarily or
involuntarily, Landlord's obligations and liabilities under this Lease accruing
after the conveyance shall be the sole responsibility of the new owner, subject
to the terms hereof. If Landlord or the Landlord's Parties are ordered to pay
Tenant a money judgment because of Landlord's default, or as the result of any
indemnification liability arising under this Lease, then except in those
instances listed below in this Section 17.05, Tenant's sole remedy to satisfy
the judgment shall be Landlord's interest in the Premises including rental
income and proceeds from sale, and any insurance or condemnation proceeds
received because of damage or condemnation to, or of, the Premises that are
available for use by Landlord. The limitations of this Section 17.05 do not
apply in circumstances in which (a) Landlord has failed to apply insurance or
condemnation proceeds as required by this Lease; or (b) the liability relates to
an indemnification obligation arising under Article 19, or (c) any
representation or warranty of Landlord in this Lease was materially inaccurate
when made with Landlord's actual knowledge of such inaccuracy. Notwithstanding
any other provisions of this Lease to the contrary, in no event shall Landlord
be responsible or liable on any theory for any injury to Tenant's business, loss
of profit, loss of income or any other form of consequential damage. Nothing in
this Section 17.05 shall be interpreted to mean that Tenant cannot be awarded
specific performance or injunctive relief.
ARTICLE 18
PERMITTED USE; NO UNLAWFUL OCCUPANCY
SECTION 18.01. PERMITTED USE. During the Term, the Premises shall be
used only for the storage of EarthShell Equipment pending its removal from the
Premises. In the event that Tenant fails to remove the EarthShell Equipment on
or before the expiration or earlier termination of this Lease, Landlord, at
Tenant's cost and expense shall have the right to remove the same from the
Premises and/or deem such EarthShell Equipment to have been abandoned by Tenant.
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ARTICLE 19
ENVIRONMENTAL MATTERS
SECTION 19.01. HAZARDOUS MATERIALS; ENVIRONMENTAL LAWS. As used
herein, "Hazardous Materials" means any chemical, substance, material,
controlled substance, object, condition, waste, living organism or combination
thereof which is or may be hazardous to human health or safety or to the
environment due to its radioactivity, ignitability, corrosivity, reactivity,
explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity,
infectiousness or other harmful or potentially harmful properties or effects,
including, without limitation petroleum and petroleum products, asbestos,
asbestos containing materials, polychlorinated biphenyls (PCBs), refrigerants
(including those substances defined in the Environmental Protection Agency's
"Refrigerant Recycling Rule," as amended from time to time) and all of those
chemicals, substances, materials, controlled substances, objects, conditions,
wastes, living organisms or combinations thereof which are now or become in the
future listed, defined or regulated in any manner by any Environmental Law based
upon, directly or indirectly, such properties or effects. As used herein,
"Environmental Laws" means any and all federal, state or local environmental,
health and/or safety-related laws, regulations, standards, decisions of courts,
ordinances, rules, codes, orders, decrees, directives, guidelines, permits or
permit conditions, currently existing and as amended, enacted, issued or adopted
in the future which are or become applicable to Tenant or the Premises.
SECTION 19.02. TENANT'S CONDUCT. Tenant shall not cause nor permit,
nor allow any of Tenant's Parties to cause or permit, any Hazardous Materials to
be brought upon, stored, manufactured, generated, blended, handled, released,
recycled, treated, disposed or used on, under or about the Premises, except
routine office and janitorial supplies, and fuels and lubricants used for
warehouse machinery and equipment in usual and customary quantities stored, used
and disposed of in accordance with all applicable Environmental Laws. Tenant and
Tenant's Parties shall comply with all Environmental Laws and promptly notify
Landlord of the violation of any Environmental Law or presence of any Hazardous
Materials, other than office and janitorial supplies as permitted above, on the
Premises. Tenant, at its sole cost and expense, shall be responsible for
obtaining all permits, license or approvals required by Environmental Laws for
Tenant's use of the Premises and shall make all notifications and registrations
required by any applicable Environmental Laws in connection therewith, and
Tenant shall provide copies thereof to Landlord. Tenant shall at all times
comply with such permits, licenses, approvals, notifications and registrations.
SECTION 19.03. TENANT'S INDEMNITY. Tenant shall indemnify and hold
harmless Landlord and Landlord's Parties from any and all claims, damages,
fines, judgments, penalties, costs, expenses or liabilities (including, without
limitation, any and all sums paid for settlement of claims, reasonable
attorneys' fees, consultant and expert fees) arising during or after the Term
from or in connection with the use, storage, generation, release or disposal of
Hazardous Materials in, on or about the Premises either (x) by Tenant or any of
Tenant's Parties, at any time.
SECTION 19.04. LIMITATIONS. Notwithstanding anything to the contrary
in this Article 19, the indemnification of Landlord set forth above shall not
include any consequential damages (e.g., loss of rent, use and profits) incurred
by Landlord or Landlord's Parties. Such indemnification shall survive any
expiration or earlier termination of the Term, but shall terminate three (3)
years after any such expiration or earlier termination except with respect to
any specific claims that have asserted by either party by notice to the other
prior to the expiration of said three-year period, and except with respect to
any adverse environmental condition which was known by actual knowledge by one
party to exist, but which was not disclosed to the other party prior to the
expiration of said three-year period.
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ARTICLE 20
EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC
SECTION 20.01. EVENTS OF DEFAULTS. The occurrence of any of the
following events shall, at Landlord's option, constitute an "Event of Default":
(a) Vacation or abandonment of the Premises for a period of ninety
(90) consecutive days, when such vacation or abandonment is coupled with
Tenant's failure to pay Rent and other obligations under this Lease and/or
Tenant's default of another provision of this Lease;
(b) Failure to pay the Rent on the date when due and the failure
continuing for a period of ten (10) days after notice from Landlord that such
payment is due;
(c) Failure to perform Tenant's covenants and obligations hereunder
(except default in the payment of Rent) where such failure continues for a
period of thirty (30) days after notice from Landlord; provided, however, that
if the nature of the default is such that more than thirty (30) days are
reasonably required for its cure, Tenant shall not be deemed to be in default if
Tenant commences the cure within said thirty (30)-day period and diligently and
continuously prosecutes such cure to completion; or
(d) The making of a general assignment by Tenant for the benefit of
creditors; the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing; the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold; Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due; any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets; Tenant taking
any action toward the dissolution or winding up of Tenant's affairs; or the
attachment, execution or other judicial seizure of substantially all of tenant's
assets or this leasehold.
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SECTION 20.02. REMEDIES.
(a) In the event of the occurrence of any Event of Default, Landlord
shall have the right to give a termination notice to Tenant.
(b) Following termination, without prejudice to other remedies
Landlord may have, Landlord may (i) peaceably re-enter the Premises upon
voluntary surrender by Tenant or remove Tenant and Tenant's property therefrom
and any other persons occupying the Premises, using such legal proceedings as
may be available; (ii) repossess the Premises; and (iii) at Tenant's cost and
expense, remove all of Tenant's personal property therefrom or deem the same to
have been abandoned by Tenant.
If, following the occurrence of an Event of Default, Landlord elects
to proceed in any court for judgment in ejectment against Tenant and all persons
claiming under Tenant for the recovery of possession of the Premises and, if for
any reason after such action shall have been commenced, it shall be cancelled or
suspended and possession of the Premises remains in or is restored to Tenant,
Landlord shall have the right upon any subsequent default or upon the expiration
or termination of this Lease to bring one or more actions to recover possession
of the Premises.
(c) Landlord shall have all the rights and remedies of a landlord
provided by applicable law, including the right to recover from Tenant: (i) the
unpaid Rent that had been earned at the time of termination, (ii) the Rent
which, but for the termination of this Lease, would have become due during the
remainder of the Term, in which case liquidated damages shall be computed and
payable in monthly installments, in advance, on the first day of each calendar
month following the termination of this Lease and shall continue until the date
on which the Term would have expired but for such termination, and any action or
suit brought to collect any such liquidated damages for any month shall not in
any manner prejudice the right of Landlord to collect any liquidated damages for
any subsequent months by similar preceding; or (iii) the present worth (as of
the date of such termination) of the Rent which, but for the termination of this
Lease, would have become due during the remainder of the Term ("Total Rent
Amount"), in which case such liquidated damages shall be payable to Landlord in
one lump sum on demand and shall bear interest at the Reference Rate until paid.
"Present worth" shall be computed by discounting the Total Rent Amount at a rate
equal to the lower of (x) six percent (6%) per annum, or (y) three (3)
percentage points above the discount rate then in effect at the Federal Reserve
Bank. In no event shall Landlord be required to account to Tenant for any
amounts if the fair rental value of the Premises exceeds the stipulated Rent at
the time of such termination; and (iv) any other amount, and court costs,
necessary to compensate Landlord for all detriment proximately caused by
Tenant's default.
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SECTION 20.03. CUMULATIVE. Each right and remedy of Landlord provided
for herein or now or hereafter existing at law, in equity, by statute or
otherwise shall be cumulative and shall not preclude Landlord from exercising
any other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity, by statute or otherwise. No payment by Tenant of a
lesser amount than the Rent nor any endorsement on any check or letter
accompanying any check or payment as Rent shall be deemed an accord and
satisfaction of full payment of Rent; and Landlord may accept such payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue other remedies.
ARTICLE 21
NOTICES
SECTION 21.01. NOTICES. Whenever it is provided herein or prescribed
by law that notice, demand, request, consent, approval, assertion, claim,
election or other communication (each a "notice") shall or may be given to or
served upon either of the parties hereto, such notice, shall be in writing and,
unless otherwise prescribed by law or governmental regulation, shall be
effective for any purpose only if given by mailing the same by registered or
certified mail, postage prepaid, return receipt requested, or by overnight
courier, such as Federal Express or sent by facsimile (immediately followed by
one of the preceding methods), in each case addressed to the parties at the
respective addresses set forth below, or to such other addresses as either party
may from time to time designate by like notice given to the other.
(a) If to Tenant: EarthShell Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:
e-mail:
Fax No.:
with a copy to: EarthShell Corporation
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
e-mail: xxxxxxx@xxxxxxxxxx.xxx
Fax No.: 410/000-0000
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(b) If to Landlord: Sweetheart Cup Company Inc.
00000 Xxxxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
e-mail: xxxxxx@xxxxxxxxxx.xxx
Fax No.: 410/000-0000
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
e-mail: x0xxxx@xxxxxxxxxx.xxx
Fax No.: 914/000-0000
SECTION 21.02. EFFECTIVE DATE. Every notice, when mailed, shall be
deemed to have been given or served three (3) days after the date that the same
shall have been deposited in the United States mails postage prepaid, in the
manner aforesaid, except that a notice of change of address shall be deemed to
have been given only when received by the addressee, or if sent by overnight
courier or by facsimile, the same shall be deemed given or served when received
by the addressee.
ARTICLE 22
HOLDING OVER; SURRENDER
SECTION 22.01. HOLDING OVER. If Tenant holds over the Premises or any
part thereof after the expiration or earlier termination of the Term, such
holding over shall, constitute a month-to-month tenancy and shall be on all the
other terms and conditions of this Lease, provided that if the holding over
continues for a period in excess of sixty (60) days, the Base Rent shall,
without notice, increase to a rent equal to one hundred twenty-five (125%)
percent of the Base Rent in effect immediately prior to such holding over for
the first thirty (30) days of such holdover period and thereafter at the rate of
two hundred (200%) percent of the Base Rent in effect immediately prior to such
holding over. Acceptance of Rent by Landlord following expiration or earlier
termination shall not constitute a renewal of this Lease or extension of the
Term except as specifically set forth above, and Tenant shall be subject to
removal and eviction as otherwise set forth herein.
SECTION 22.02. SURRENDER. Upon the expiration or earlier termination
of the Term or Tenant's right to possession of the Premises, Tenant will comply
with the provisions of Section 11.02. Any property which Tenant shall fail to
remove from the Premises shall be deemed abandoned by Tenant and may be retained
by Landlord, as its property, or disposed of in any manner deemed appropriate by
Landlord. Any expense incurred by Landlord in removing or disposing of such
property shall be reimbursed to Landlord by Tenant on demand. Tenant shall patch
and fill all holes within the Premises and all penetrations of the roof shall be
resealed to a watertight condition and Tenant shall promptly repair any damage
to the Premises occasioned by its removal from the Premises. In no event may
Tenant remove from the Premises any mechanical or electrical systems or any
wiring or any other aspect of any systems within the Premises. The provisions of
this Section shall survive the expiration or earlier termination of the Term.
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ARTICLE 23
NO BROKER
SECTION 23.01. NO BROKER. Landlord and Tenant acknowledge that no
broker has acted as an intermediary in connection with the transactions
contemplated by this Lease. Landlord and Tenant each represents and warrants to
the other that it has not dealt with any broker, finder or other intermediary in
connection with the transactions contemplated hereby and that no such fees or
commissions are due or payable to any third party by reason of any of the said
transactions. Landlord and Tenant each agrees further to indemnify, defend and
hold the other harmless of, from and against any and all costs, losses, claims,
damages, liabilities, expenses and other obligations (including, without
limitation, reasonable attorneys' fees and costs) arising from or in connection
with or otherwise resulting from a breach of their respective representations
and warranties contained in this Article 26 or any claim by any broker, finder,
intermediary or other third party claiming to have been employed by or at the
direction of the indemnifying party. The provisions of this Article 24 shall
survive the expiration or earlier termination of this Lease.
ARTICLE 24
NO REPRESENTATIONS
SECTION 24.01. NO REPRESENTATIONS. Tenant expressly acknowledges and
agrees that, except as otherwise expressly set forth in this Lease, no
representations, statements, or warranties of any kind, express or implied, as
to merchantability, fitness for a particular purpose or use, or otherwise, have
been made by or on behalf of Landlord or its representatives in respect of the
Premises, the status of title, the physical condition or state of repair
thereof, the income, profit potential or expenses of operation thereof, the
zoning or other laws, regulations, rules and/or orders applicable thereto or any
construction work or alterations intended or required to be made thereto, the
Impositions, or any other matter or thing affecting or relating to the Premises,
and that Tenant has relied on no such representations, statements or warranties,
but solely on its own examination and inspection of the Premises and other
investigations pertaining to the alteration or use thereof, and that Landlord
shall not in any event whatsoever be liable for any latent or patent defects in
the Premises, or any claimed misrepresentations or breach of warranties.
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ARTICLE 25
EARLY TERMINATION
SECTION 25.01. EARLY TERMINATION. Tenant, upon notice to Landlord,
shall have the right to terminate this Lease as of a date designated in such
notice (the "Early Termination Date"); provided, however, that (a) the Early
Termination Date shall be no sooner than the ninety-first (91st) day following
the Effective Date; (b) no Event of Default shall exist on the Early Termination
Date; and (c) Tenant shall pay to Landlord, on or before the close of business
on the Early Termination Date, a sum in an amount equal to fifty (50%) percent
of the Base Rent payable for the period commencing on the Early Termination Date
and ending on and including December 31, 2003. The provisions of this Section
shall terminate and be of no further force or effect in the event that an Event
of Default shall exist on the Early Termination Date or Tenant shall fail to
timely make such payment. Base Rent shall be apportioned in the event that the
Early Termination Date is not the last day of a calendar month.
ARTICLE 26
MISCELLANEOUS
SECTION 26.01. ENTIRE AGREEMENT. This Lease sets forth all agreements
between Landlord and Tenant concerning the Premises; and there are no agreements
either oral or written other than as set forth herein.
SECTION 26.02. TIME OF ESSENCE. Time is of the essence of this Lease.
SECTION 26.03. ATTORNEYS' FEES. In any action or proceeding
(including arbitration) which either party brings against the other to enforce
its rights hereunder, the unsuccessful party shall pay all costs incurred by the
prevailing party, including, without limitation, reasonable attorneys' fees,
which amounts shall be a part of the judgment in said action or proceeding.
SECTION 26.04. SEVERABILITY. If any provision of this Lease or the
application of any such provision shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable to any extent, the remaining
provisions of this Lease and the application thereof shall remain in full force
and effect and shall not be affected, impaired or invalidated.
SECTION 26.05. LAW. This Lease shall be construed and enforced in
accordance with the laws of the State of Maryland.
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SECTION 26.06. NO OPTION. Submission of this Lease to Tenant for
examination or negotiation does not constitute an option to lease, offer to
lease or a reservation of, or option for, the Premises and this document shall
become effective and binding only upon the execution and delivery hereof by
Landlord and Tenant.
SECTION 26.07. NO THIRD PARTY BENEFIT. Nothing herein is intended to
create any third party benefit.
SECTION 26.08. RECORDATION. Tenant shall not record this Lease or a
short form memorandum hereof without Landlord's prior consent which,
notwithstanding anything contained to the contrary in this Lease, Landlord can
withhold in its sole discretion
SECTION 26.09. AGENCY, PARTNERSHIP OR JOINT VENTURE. Nothing
contained in this Lease nor any acts of the parties hereto shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture by the
parties hereto or any relationship other than the relationship of landlord and
tenant.
SECTION 26.10. SURRENDER OF LEASE. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation thereof or a termination by
Landlord shall not work a merger and shall, at the option of Landlord, terminate
all or any existing subtenancies or may, at the option of Landlord, operate as
an assignment to Landlord of any or all of such subtenancies.
SECTION 26.11. HEADINGS. Article and Section headings have been
inserted solely as a matter of convenience and are not intended to define or
limit the scope of any of the provisions contained therein and references to
Articles or Sections shall refer to the corresponding Article or Section
appearing herein.
SECTION 26.12 WAIVER AND AMENDMENT. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account
thereof, notwithstanding any custom and practice or course of dealing. No waiver
by either party of any provision under this Lease shall be effective unless in
writing and signed by such party. No waiver shall affect any default other than
the default specified in the waiver and then such waiver shall be operative only
for the time and to the extent therein stated. Waivers of any covenant shall not
be construed as a waiver of any subsequent breach of the same. This Lease may
not be changed orally, but only by agreement in writing, signed by the party
against whom enforcement of the change, modification or discharge is sought.
SECTION 26.13. AUTHORIZATION. Each individual executing this Lease on
behalf of Landlord or Tenant represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of Landlord or Tenant and
that such execution is binding upon such party.
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SECTION 26.14. COVENANT OF QUIET ENJOYMENT. Landlord covenants that,
following the Commencement Date, Tenant shall quietly and peaceably hold,
possess and enjoy the Premises for the Term upon and subject to the terms,
covenants and conditions contained herein.
SECTION 26.15. SUCCESSORS AND ASSIGNS. This Lease shall be binding
upon and inure to the benefit of the successors and assigns of Landlord and,
subject to compliance with the terms of Article 15, Tenant.
EXECUTED as a sealed instrument as of the day and year first above
written.
LANDLORD: TENANT:
SWEETHEART CUP COMPANY INC. EARTHSHELL CORPORATION
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Vice Chairman President and COO
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