Exhibit 10 (c)
AMENDED AND RESTATED LEASE AGREEMENT
This Amended and Restated Lease Agreement (the "Lease") is made as of
December 14, 1999, but effective as of January 1, 2000, by and between WHITE
DEER WAREHOUSING & DISTRIBUTION CENTER, INC., c/o Xxxxxx X. Xxxxxx, 000 Xxxxx
Xxxxxx, Xxxxxxxxxxxxx, XX 00000 ("Landlord") and WEST PHARMACEUTICAL SERVICES,
INC., 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Tenant").
WHEREAS, Landlord and Tenant, as successor to The West Company
Incorporated, are parties to a certain Lease Agreement dated October 15, 1996
(the "Original Lease"), pursuant to which Landlord leases to Tenant, and Tenant
rents from Landlord approximately 105,151 rentable square feet (the "Original
Premises") located in a building containing approximately 197,411 rentable
square feet located at Route 15, Clinton Township, Lycoming County, Pennsylvania
(the "Building"); and
WHEREAS, Landlord and Tenant desire to amend and restate the Original Lease
to provide for an expansion of the Original Premises to the entire Building
(subject to the Existing Leases, as defined herein), an extension of the term of
the Original Lease, and such other modifications, terms and conditions set forth
herein.
NOW THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby. Landlord and Tenant agree as follows:
1. RESTATEMENT OF ORIGINAL LEASE; CREATION OF NEW LEASED PREMISES.
Landlord and Tenant acknowledge and agree that, as of the Commencement Date
described below, the Original Lease shall be and hereby is amended and restated
by this Lease Agreement. Landlord hereby leases to Tenant 197,411 rentable
square feet in the Building, as more particularly shown on the space plan
attached hereto and made a part hereof as Exhibit "A" (the "Premises"); the
occupancy of which shall be subject to the terms and conditions of the existing
leases from Landlord to Tenant, as described in Exhibit "B" attached hereto (the
"Existing Leases"). The Premises contains the fixtures, improvements, and other
property now installed. Tenant accepts the Premises in its current condition,
"as-is", without any representation or warranty of Landlord, except as expressly
set forth herein.
The Premises shall include the entire Building as well as the land south of
the creek bed ("Land").
Landlord agrees to deliver, on or prior to the effectiveness of this Lease
Agreement, sublease agreements from the tenants under the Existing Leases, in
the form of Exhibit "C" attached hereto, pursuant to which such tenants will
agree to become subtenants to Tenant.
2. TERM.
The initial term ("Initial Term") of this Lease begins on January 1, 2000
(the "Commencement Date") and shall end on December 31, 2009 (the "Expiration
Date"), subject to the extension options contained below.
Provided that Tenant is not then in default under this Lease, Tenant is
hereby granted the option to extend the term of this Lease for three (3)
additional terms (each of such additional terms, a "Renewal Term") of five (5)
years each, each such option to be exercised by Tenant, if at all, by giving
written notice not less than ninety (90) days prior to the expiration of the
Initial Term or then-current Renewal Term. The Initial Term and any Renewal Term
are sometimes referred to together in this Lease as the "Term" hereof
3. BASE RENT; SECURITY DEPOSIT.
Tenant shall pay to Landlord at the office of Landlord, or at such other
place as Landlord may designate, annual Base Rent during the first Lease year
equal to Six Hundred Ninety Thousand Nine Hundred Thirty Eight and 50/100
Dollars ($690,938.50) (representing the sum obtained by multiplying the square
feet of the Premises by $3.50); payable in twelve (12) equal monthly
installments of Fifty Seven Thousand Five Hundred Seventy Eight and 21/100
Dollars ($57,578.21). After the first Lease year, and including all Renewal
Terms, the annual Base Rent shall be increased from the Base Rent for the
previous Lease year by the percentage increase in the Consumer Price Index (as
hereinafter defined) between October of the previous calendar year and October
of the then current calendar year, with a minimum increase of three percent (3%)
and a maximum increase of five percent (5%). "Consumer Price Index" shall mean
the Consumer Price Index for All Urban Consumers released by the United States
Department of Labor, Bureau of Labor Statistics, relating to Consumer Prices for
All Items in the Philadelphia Area.
All of these payments shall be made on or before the first day of each and
every month following the Commencement Date during the Term, without any set-off
or deduction except as herein specified. If the Commencement Date occurs on
other than the first day of a month, the Base Rent for such month shall be pro
rated.
As security for performance of its obligations under this Lease, Tenant
shall pay to Landlord a security deposit in the amount equal to $57,578.21,
representing one month's rent as calculated in the first Lease year.
4. CAPITAL IMPROVEMENT FUND.
In addition to the payments of Base Rent described above, Tenant shall pay
to Landlord from and after the Commencement Date an annual amount equal to Fifty
Cents (.50 cents) per square foot in the Premises, to be paid in equal monthly
installments throughout each Lease Year (the "Capital Improvement Reserve"). The
Capital Improvement Reserve shall be subject to the same annual increase by the
percentage increase in the Consumer Price Index as set forth in Section 3 above.
The Capital Improvement Reserve may be used by Landlord, upon prior notice to
Tenant, to pay for capital improvements, replacements and reasonable financing
costs (as referred to in Paragraph 8(b) and 8(c) below and as defined by
generally accepted accounting principles) required to the Building from and
after the Commencement Date; provided, however, that the Capital Improvement
Reserve shall only be used to pay for capital improvement and replacement work
performed in a manner and during such times as is customary for such work.
Landlord and Tenant agree that each will take such steps necessary to bid such
work wherever reasonably practicable so as to minimize excess costs.
Notwithstanding the foregoing, Landlord must make any and all necessary capital
improvements and replacements to the Building regardless of whether there are
sufficient funds in the Capital Improvement Reserve to fund such improvements or
replacements. In the event that the Capital Improvement Reserve is insufficient
to fund necessary capital improvements or replacements, and Landlord is required
to advance such funds, subsequent payments by Tenant to the Capital Improvement
Reserve can be used to reimburse Landlord. Any dispute regarding the necessity
of capital improvements or replacements will be subject to the dispute
resolution provisions set forth in Section 8(c).
5. ADDITIONAL RENT.
(a) Definitions. For the purpose of this Lease, "Real Estate Taxes" means
the sum of (a) real property taxes, special or otherwise, imposed upon the
Premises, at discounted rates only, and (b) reasonable legal fees, costs, and
disbursements incurred for proceedings to contest, determine, or reduce Real
Estate Taxes, provided such method for contesting the Real Estate Taxes is
agreed to in writing by Landlord and Tenant.
(b) Payment by Tenant. Tenant shall pay all Real Estate Taxes imposed upon
the Premises within thirty (30) days net from the date of receipt by Tenant of
written notice from Landlord of such amounts due from Tenant; provided however,
that Landlord shall pay its proportionate share of the real estate taxes imposed
on the land that is north of the creek bed. The assessed value of the land north
of the creek bed shall be determined by a pro ration of the locally assessed
land values.
6. UTILITIES.
(a) Tenant shall pay the cost of all light, power, natural gas, fuel, oil,
sprinkler stand-by service, water, telephone, sewer, and other utilities and
services supplied to the Premises. Tenant shall pay such charges directly to the
providing utility. Landlord shall not be liable to Tenant, and Tenant's
obligations under the Lease shall not be abated, in the event of any
interruption or inadequacy of any utility or service supplied to the Premises
unless such interruption or inadequacy is caused by the gross negligence or
wilful misconduct of Landlord, and then only to the extent Tenant is not
compensated by any insurance required to be carried by Tenant hereunder or any
other insurance actually carried by Tenant.
(b) In the event public sewer service becomes available to the Premises,
Tenant shall pay all normal assessments pursuant to Section 6(a) above, and
sewer rents applicable thereto. Landlord shall pay the cost of all hook-up fees
and the cost of the installation and replacement of all applicable sewer
connection lines serving the Premises.
7. USE OF PREMISES. The Premises may be used by Tenant for any lawful purpose.
8. MAINTENANCE AND REPAIRS.
(a) Tenant Responsibilities. Tenant shall keep and maintain the Premises in
good order, condition and repair during the Term. Tenant shall be responsible
for (i) routine maintenance and repair of the parking areas surrounding the
Building, and the roof areas above the Premises as shown on Exhibit "D" attached
hereto, (ii) lawn maintenance and landscaping of the Land south of the creek bed
and (iii) snow and ice removal surrounding the Building and the Land south of
the creek bed. To assist Tenant in its maintenance responsibilities, Tenant
shall have cooperative use and maintenance responsibility (but not replacement
responsibility) of Landlord's presently existing maintenance equipment,
including Landlord's scissor xxxx, maintenance tractor and related equipment.
Tenant shall not commit any waste or nuisance in the Premises nor allow its
agents or employees to do so. Landlord, at Tenant's expense, shall perform an
annual maintenance inspection of all roof areas above the Premises as shown on
Exhibit "D" attached hereto, which such annual inspection shall result in a
written inspection report to be provided to Landlord and Tenant; provided,
however, that Landlord shall obtain Tenant's prior written approval of the
inspection company selected by Landlord, which approval shall not be
unreasonably withheld or delayed
(b) Landlord Responsibilities. Landlord shall be responsible for
replacement, as defined by generally accepted accounting principles, as needed,
of the parking areas surrounding the Building, the roof and structure of the
Building, and the Building's systems and any and all equipment, fixtures and
appurtenances furnished by the Landlord, as described in Exhibit "E" attached
hereto; provided, however, that Landlord shall not be responsible for uninsured
damage arising from the negligent act or omission of Tenant, its agents or
employees, which shall be repaired by Tenant at Tenant's expense. Repairs which
affect business operations in the Premises shall be scheduled after hours to the
extent feasible.
(c) Dispute Resolution. Disputes between Landlord and Tenant as to whether
a condition warrants repair by Tenant or replacement by Landlord shall be
determined by an independent expert chosen jointly by Landlord and Tenant. In
the event that Landlord and Tenant cannot agree on an independent expert, each
of Landlord and Tenant shall select one expert, and both such experts shall
select a third expert, who shall, in consultation with the other two experts,
make the determination as to whether the condition warrants necessary repair or
replacement.
9. ALTERATIONS AND IMPROVEMENTS.
Tenant shall not make any "material" alterations, additions or improvements
to the Premises (the "Alterations") without Landlord's prior written consent,
which shall not be unreasonably withheld or delayed. Tenant shall be permitted
to make non-structural Alterations to the Premises without the prior written
consent of Landlord, if such Alterations are not "material". As used herein,
"material" shall mean Alterations performed for a price of more than $50,000.
Disputes between Landlord and Tenant as to whether a non-structural Alteration
is "material" shall be subject to the dispute resolution provisions set forth in
Section 8(c). Tenant shall procure all governmental permits and authorizations
for the Alterations, and obtain and provide to Landlord an official certificate
of occupancy and/or compliance upon completion of the Alterations, if
appropriate. Tenant shall construct the Alterations in a good and workmanlike
manner utilizing materials of first class quality and in compliance with all
laws and governmental regulations. Alterations that remain on the Premises upon
termination of the Lease shall become the property of Landlord, including items
that are considered an integral part of the Building and Building systems;
provided, however, that Tenant shall have the right to remove all alterations or
improvements that are an integral part of its business operation and shall
return such areas to their condition prior to the alteration or improvement by
Tenant.
10. ADDITIONAL BUILDINGS.
Landlord shall not build any building on the Land to the south of the creek
bed without Tenant's prior written consent, which shall not be unreasonably
withheld or delayed. Tenant can reasonably withhold consent if any of the
following conditions are not met: (i) the building must be freestanding, (ii)
the building must have adequate, self-contained parking (i.e., have enough
parking spaces to meet the buildings' needs, without sacrificing Tenant's
parking or exterior storage needs), (iii) the building event that the Capital
Improvement Reserve is insufficient to fund necessary capital improvements or
replacements, and Landlord is required to advance such funds, subsequent
payments by Tenant to the Capital Improvement Reserve can be used to reimburse
Landlord. Any dispute regarding the necessity of capital improvements or
replacements will be subject to the dispute resolution provisions set forth in
Section 8(c).
5. ADDITIONAL RENT.
(a) Definitions. For the purpose of this Lease, "Real Estate Taxes" means
the sum of (a) real property taxes, special or otherwise, imposed upon the
Premises, at discounted rates only, and (b) reasonable legal fees, costs, and
disbursements incurred for proceedings to contest, determine, or reduce Real
Estate Taxes, provided such method for contesting the Real Estate Taxes is
agreed to in writing by Landlord and Tenant.
(b) Payment by Tenant. Tenant shall pay all Real Estate Taxes imposed upon
the Premises within thirty (30) days net from the date of receipt by Tenant of
written notice from Landlord of such amounts due from Tenant; provided however,
that Landlord shall pay its proportionate share of the real estate taxes imposed
on the land that is north of the creek bed. The assessed value of the land north
of the creek bed shall be determined by a pro ration of the locally assessed
land values.
6. UTILITIES.
(a) Tenant shall pay the cost of all light, power, natural gas, fuel, oil,
sprinkler stand-by service, water, telephone, sewer, and other utilities and
services supplied to the Premises. Tenant shall pay such charges directly to the
providing utility. Landlord shall not be liable to Tenant, and Tenant's
obligations under the Lease shall not be abated, in the event of any
interruption or inadequacy of any utility or service supplied to the Premises
unless such interruption or inadequacy is caused by the gross negligence or
wilful misconduct of Landlord, and then only to the extent Tenant is not
compensated by any insurance required to be carried by Tenant hereunder or any
other insurance actually carried by Tenant.
(b) In the event public sewer service becomes available to the Premises,
Tenant shall pay all normal assessments pursuant to Section 6(a) above, and
sewer rents applicable thereto. Landlord shall pay the cost of all hook-up fees
and the cost of the installation and replacement of all applicable sewer
connection lines serving the Premises.
7. USE OF PREMISES. The Premises may be used by Tenant for any lawful purpose.
8. MAINTENANCE AND REPAIRS.
(a) Tenant Responsibilities. Tenant shall keep and maintain the Premises in
good order, condition and repair during the Term. Tenant shall be responsible
for (i) routine maintenance and repair of the parking areas surrounding the
Building, and the roof areas above the Premises as shown on Exhibit "D" attached
hereto, (ii) lawn maintenance and landscaping of the Land south of the creek bed
and (iii) snow and ice removal surrounding the Building and the Land south of
the creek bed. To assist Tenant in its maintenance responsibilities, Tenant
shall have cooperative use and maintenance responsibility (but not replacement
responsibility) of Landlord's presently existing maintenance equipment,
including Landlord's scissor xxxx, maintenance tractor and related equipment.
Tenant shall not commit any waste or nuisance in the Premises nor allow its
agents or employees to do so. Landlord, at Tenant's expense, shall perform an
annual maintenance inspection of all roof areas above the Premises as shown on
Exhibit "D" attached hereto, which such annual inspection shall result in a
written inspection report to be provided to Landlord and Tenant; provided,
however, that Landlord shall obtain Tenant's prior written approval of the
inspection company selected by Landlord, which approval shall not be
unreasonably withheld or delayed
(b) Landlord Responsibilities. Landlord shall be responsible for
replacement, as defined by generally accepted accounting principles, as needed,
of the parking areas surrounding the Building, the roof and structure of the
Building, and the Building's systems and any and all equipment, fixtures and
appurtenances furnished by the Landlord, as described in Exhibit "E" attached
hereto; provided, however, that Landlord shall not be responsible for uninsured
damage arising from the negligent act or omission of Tenant, its agents or
employees, which shall be repaired by Tenant at Tenant's expense. Repairs which
affect business operations in the Premises shall be scheduled after hours to the
extent feasible.
(c) Dispute Resolution. Disputes between Landlord and Tenant as to whether
a condition warrants repair by Tenant or replacement by Landlord shall be
determined by an independent expert chosen jointly by Landlord and Tenant. In
the event that Landlord and Tenant cannot agree on an independent expert, each
of Landlord and Tenant shall select one expert, and both such experts shall
select a third expert, who shall, in consultation with the other two experts,
make the determination as to whether the condition warrants necessary repair or
replacement.
9. ALTERATIONS AND IMPROVEMENTS.
Tenant shall not make any "material" alterations, additions or improvements
to the Premises (the "Alterations") without Landlord's prior written consent,
which shall not be unreasonably withheld or delayed. Tenant shall be permitted
to make non-structural Alterations to the Premises without the prior written
consent of Landlord, if such Alterations are not "material". As used herein,
"material" shall mean Alterations performed for a price of more than $50,000.
Disputes between Landlord and Tenant as to whether a non-structural Alteration
is "material" shall be subject to the dispute resolution provisions set forth in
Section 8(c). Tenant shall procure all governmental permits and authorizations
for the Alterations, and obtain and provide to Landlord an official certificate
of occupancy and/or compliance upon completion of the Alterations, if
appropriate. Tenant shall construct the Alterations in a good and workmanlike
manner utilizing materials of first class quality and in compliance with all
laws and governmental regulations. Alterations that remain on the Premises upon
termination of the Lease shall become the property of Landlord, including items
that are considered an integral part of the Building and Building systems;
provided, however, that Tenant shall have the right to remove all alterations or
improvements that are an integral part of its business operation and shall
return such areas to their condition prior to the alteration or improvement by
Tenant.
10. ADDITIONAL BUILDINGS.
Landlord shall not build any building on the Land to the south of the creek
bed without Tenant's prior written consent, which shall not be unreasonably
withheld or delayed. Tenant can reasonably withhold consent if any of the
following conditions are not met: (i) the building must be freestanding, (ii)
the building must have adequate, self-contained parking (i.e., have enough
parking spaces to meet the buildings' needs, without sacrificing Tenant's
parking or exterior storage needs), (iii) the building event that the Capital
Improvement Reserve is insufficient to fund necessary capital improvements or
replacements, and Landlord is required to advance such funds, subsequent
payments by Tenant to the Capital Improvement Reserve can be used to reimburse
Landlord. Any dispute regarding the necessity of capital improvements or
replacements will be subject to the dispute resolution provisions set forth in
Section 8(c).
11. COVENANT AGAINST LIENS.
Tenant shall not have any right to subject Landlord's interest in the
Premises to any mechanic's lien or any other lien whatsoever. If any mechanic's
lien or other lien, charge or order for payment of money shall be filed as a
result of the act or omission of Tenant, Tenant shall cause such lien, charge or
order to be discharged or appropriately bonded within thirty (30) days after
notice from Landlord thereof, and Tenant shall indemnify and save Landlord
harmless from all liabilities and costs resulting therefrom.
12. ENVIRONMENTAL LAW COMPLIANCE.
(a) Tenant agrees that it shall, at its sole cost and expense, fulfill,
observe and comply with all of the applicable terms and provisions of all
federal, state and local environmental laws now in effect or hereinafter
enacted, as any of the same may be amended from time to time, and all rules,
regulations, ordinances, opinions, orders and directives issued or promulgated
pursuant thereto or in connection therewith, as may relate to Tenant's
operations and/or possession or use of the Premises whether pursuant to this
Lease or otherwise. Tenant will provide to Landlord written notice within five
(5) business days of all notices received from any government agency that are
served upon Tenant which claim a violation of any environmental laws, rules,
regulations, ordinances or orders of any federal, state or local government or
which call attention to the need for an investigation, remediation, response
action on or in connection with the Premises.
(b) Without limiting the foregoing, Tenant agrees, to indemnify and hold
Landlord harmless from and against any and all liability, penalties, losses,
expenses (including, but not limited to, reasonable engineering and consulting
fees), damages, costs (including, but not limited to, reasonable costs of
compliance and testing), claims, causes of action, judgments and/or the like, of
whatever nature, including, but not limited to, reasonable attorneys' fees, to
the extent said lien, encumbrance, liability, penalty, loss, expense, damage,
cost, claim, cause of action, judgment and/or the like arises from or in
connection with Tenant's failure or inability, to observe or comply with all
environmental laws; provided, however, that such indemnification shall apply
only to liabilities incurred by Tenant in the space in the Building actually
occupied by Tenant and shall not apply to liabilities incurred by other past or
present tenants in the Building.
(c) Landlord, at Landlord's sole cost and expense, shall conduct a Phase I
Environmental Audit (the "Environmental Audit") of all of the space in the
Building leased by Landlord to other past or present tenants, excluding Tenant
(the "Other Tenant Space"), by May 31, 2000. Landlord, at Landlord's sole cost
and expense, shall be responsible for performing any further investigations or
remedial activities required or recommended to be performed on the Other Tenant
Space. Landlord and Tenant agree and acknowledge that the performance of a Phase
I Environmental Audit is not conclusive evidence of the presence or absence of
environmental contamination. Without limiting the foregoing, Landlord agrees, to
indemnify and hold Tenant harmless from and against any and all liability,
penalties, losses, expenses (including, but not limited to, reasonable
engineering and consulting fees), damages, costs (including, but not limited to,
reasonable costs of compliance and testing), claims, causes of action, judgments
and/or the like, of whatever nature, including, but not limited to, reasonable
attorneys' fees, to the extent said lien, encumbrance, liability, penalty, loss,
expense, damage, cost, claim, cause of action, judgment and/or the like arises
from or in connection with Landlord's failure or inability, to observe or comply
with all environmental laws; provided, however, that such indemnification shall
apply only to liabilities incurred by Landlord in the space in the Building not
occupied by Tenant.
(d) Tenant agrees that each of the foregoing provisions of this Section 12
shall survive the expiration or earlier termination of the term of this Lease.
(e) Landlord and Tenant agree that throughout the Term of this Lease,
neither Landlord or Tenant will use, generate, process, manufacture, store,
handle, treat, release, discharge or dispose of any Hazardous Substances at the
Premises, nor will give any other person or entity the right to use, generate,
process, manufacture, store, handle, treat, release, discharge or dispose of any
Hazardous Substances at the Premises.
(f) Landlord, at Landlord's expense, shall have access to the Premises
during normal business hours to conduct any and all reasonable, periodic
environmental tests and inspections that the Landlord deems necessary. If such
testing or inspections interferes with or disrupts Tenant's business operations,
Landlord shall reimburse Tenant for any and all costs and expenses incurred by
Tenant as a result of such disruption or interference, including, but not
limited to, administrative costs, direct costs and legal costs.
13. ASSIGNMENT AND SUBLETTING.
Tenant shall have the right to freely assign this Lease or sublet any part
of or the entire Premises, without the requirement of Landlord's consent,
provided, however, that the term of any sublease shall not be greater than the
term of this Lease. Tenant shall be released from its obligations contained in
this Lease if it assigns this Lease to an assignee showing financial strength
and stability reasonably acceptable to Landlord and Landlord's mortgagee, which
such acceptance shall not be unreasonably withheld or delayed. In the event
Tenant desires to assign this Lease or sublet the Premises, upon Tenant's
request, Landlord shall cooperate in good faith to assist Tenant in locating and
reaching appropriate agreements with one or more substitute Tenant(s) or
sublessee(s), whose uses are compatible to that of Tenant and comply with
Landlord's financing requirements. In the event Tenant assigns or sublets this
Lease, Landlord agrees to enter into a non-disturbance, subordination and
attornment agreement stating that so long as such assignee or subtenant is not
in default under this Lease, its use and occupancy of the Premises will not be
disturbed by Landlord, so long as such assignee or subtenant has agreed to be
bound by the terms and conditions of this Lease applicable to it. Tenant shall
be responsible for the collection of all rents from its subtenant(s).
14. CASUALTY.
(a) If the Building is damaged by fire or other casualty, and the Building
cannot be fully repaired within one hundred eighty (180) days after such
casualty occurred, then, Tenant may elect to terminate this Lease by giving
written notice to Landlord within thirty (30) days after becoming aware of the
occurrence of the casualty. If this Lease is not so terminated, Landlord shall
repair the damage as soon as reasonably possible, in which event this Lease
shall remain in full force and effect (but Tenant shall then have the right,
prior to the completion of the repairs or Tenant's taking possession of the
Premises, to terminate this Lease if the Building is not fully repaired within
one hundred eighty (180) days after such casualty occurred). The validity and
effect of this Lease shall not be impaired in any way by the failure of Landlord
to complete repairs of the Building within one hundred eighty (180) days after
commencement of the work, even if Landlord had in good faith notified Tenant
that the repair could be completed within such period, if such failure to
complete repair is due to unreasonable delays caused by Tenant or Tenant's
insurance company. Tenant agrees to insure the Building on a replacement cost
basis.
15. CONDEMNATION.
If any portion of the Land and/or Building shall be taken under the power
of eminent domain or sold under the threat thereof ("Condemnation") and Tenant's
use of the Premises is materially adversely affected in the reasonable opinion
of Tenant exercised in good faith, Tenant may terminate this Lease as of the
date on which title to the Premises or portion thereof shall vest in the
condemning authority.
16. SURRENDER OF PREMISES.
Upon termination of the Lease, Tenant shall surrender the Premises to
Landlord broom clean, and in good order and condition, except for ordinary wear
and tear, and damage by casualty which Tenant was not obligated to remedy under
Section 14. Tenant shall repair any damage to the Premises caused by the removal
by Tenant of any equipment and machinery. All equipment, machinery and other
personal property of Tenant remaining on the Premises after Tenant's removal
shall be deemed abandoned and may be retained by Landlord.
17. COMPLIANCE WITH LAWS.
(a) Tenant shall comply with all laws, rules, ordinances, orders and
regulations of any federal, state and local authority which are applicable to
its manner of use and operation of the Premises. Nothing herein contained shall
be deemed to impose any obligation upon Tenant to make any structural
alterations, improvements or repairs to the Premises.
(b) Landlord shall comply with all rules, regulations, orders, laws,
ordinances and legal requirements and standards issued thereunder which affect
(1) the Premises or the Building; or (2) which relate to the performance by
Landlord of any duties or obligations to be performed by Landlord under this
Lease. Without limiting the foregoing, Landlord shall comply or cause the
Building to comply with all environmental, fire, and health and safety laws,
regulations and codes relating to the Building structure and not Tenant's
manufacturing and operating systems.
18. ESTOPPEL CERTIFICATE.
Tenant and Landlord each agree that from time to time, upon not less than
30 days prior written request by Landlord or Tenant, each will deliver to the
other a statement in writing certifying to the best of its knowledge (a) that
this Agreement is unmodified and in full force and effect (or if there have been
modifications that the Agreement as modified is in full force and effect); (b)
the dates to which the rent and other charges have been paid; and (c) that
neither party is in default under any provision of this Agreement, or if in
default, the nature thereof.
19. SUBORDINATION.
This Lease shall be subordinate and subject to all ground and underlying
leases and to any mortgages thereon and to any mortgages covering the fee of the
Building, or Land, that now or may hereafter affect the Building, or Land and to
all renewals, modifications or replacements thereof; provided, however, that
with respect to any existing ground lease, underlying lease and/or mortgage,
within thirty (30) days after Tenant executes this Lease and, with respect to
any future ground lease, underlying lease and/or mortgage, on or before the
effective date thereof, Landlord shall obtain from its ground lessor, underlying
lessor and/or mortgagee a written agreement with Tenant which shall be binding
on their respective successors and assigns and shall provide that so long as
this Lease shall be in full force and effect Tenant's possession and use of the
Premises and Tenant's other rights under this Lease, shall not be affected or
disturbed by reason of the subordination to or any modification of or default
under the ground or underlying lease or mortgage. If the ground or underlying
lessor and/or mortgagee or any successor in interest shall succeed to the rights
of Landlord under this Lease, whether through possession, judicial or
foreclosure action, or delivery of a deed, Tenant will attorn to and recognize
such successor-landlord as Tenant's landlord and the successor-landlord will
accept such attornment and recognize Tenant's rights of possession and use of
the Leased Premises in accordance with the provisions of this Lease.
20. DEFAULT BY TENANT.
If Tenant (i) shall default in the payment of Base Rent or Additional Rent
and such default shall continue for 15 days after notice thereof from Landlord,
or (ii) shall default in the performance of any of its other obligations under
this Lease and if such default shall continue for 30 days after notice thereof
from Landlord specifying in what manner Tenant has defaulted (except that if
such default cannot be cured within said 30 day period, this period shall be
extended for a reasonable additional time, provided that Tenant commences to
cure such default within the 30 day period and proceeds diligently thereafter to
effect such cure) or (iii) files a petition commencing a voluntary case, or has
filed against it a petition commencing an involuntary case, under the Federal
Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in
effect, or under any similar law, or files or has filed against it a petition or
answer in bankruptcy or for reorganization or for an arrangement pursuant to any
state bankruptcy law or any similar state law, and, in the case of any such
involuntary action, such action shall not be dismissed, discharged or denied
within sixty (60) days after the filing thereof then Landlord may (1) cure such
default and any costs and expenses incurred by Landlord therefor shall be deemed
Additional Rent, or (2) lawfully enter the Premises and repossess the same as
the former estate of Landlord and expel Tenant and those claiming under Tenant
without being deemed guilty of any manner of trespass and without prejudice to
any other remedies which Landlord may have for arrears of Base Rent or
Additional Rent or preceding breach of covenant, and upon entry as aforesaid,
this Lease shall terminate and Tenant covenants that in case of such
termination, it will indemnify Landlord against all loss of Base Rent,
Additional Rent and other reasonable costs and expenses actually paid by
Landlord which Landlord incurs by reason of such termination during the residue
of the term of this Lease.
21. SUSPENSION OF TENANT DEFAULT.
If Tenant shall dispute, in good faith, any Additional Rent or other sum
(other than Base Rent and Capital Improvement Reserve) claimed by Landlord
hereunder and Tenant shall give Landlord written notice specifying in reasonable
detail the basis for its dispute, Tenant may withhold payment of the particular
amount in dispute. Tenant and Landlord shall proceed diligently to resolve any
such dispute by agreement or arbitration in accordance with Section 24 or
otherwise. If the dispute is resolved, in Landlord's favor, Tenant will
reimburse Landlord the amount in dispute plus interest at 1% over prime from the
date of objection by Tenant, as well as any additional reasonable costs and
fees, including reasonable attorneys' fees. If the dispute is resolved, in
Tenant's favor, Landlord will reimburse Tenant the amount in dispute plus
interest at 1% over prime from the date of objection by Tenant, as well as any
additional reasonable costs and fees, including reasonable attorneys' fees.
22. DEFAULT BY LANDLORD.
If Landlord defaults in the performance or observance of any provision of
this Lease, Tenant shall give Landlord notice specifying in what manner Landlord
has defaulted and if such default shall not be cured by Landlord within the
period of time provided for elsewhere in this Lease, and otherwise within 30
days after the delivery of such notice (except that if such default cannot be
cured within said 30 day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the 30 day period and proceeds diligently thereafter to effect such cure);
Tenant may cure such default and/or withhold payment of Base Rent and Additional
Rent due and to accrue hereunder (to the extent necessary to cover the costs
incurred and/or estimated by Tenant to cure such default) so long as Landlord
remains in default, or invoice Landlord for costs and expenses (including,
without limitation, reasonable attorneys' fees and court costs) incurred by
Tenant therefor. If Tenant cannot reasonably cure Landlord's default or if
Landlord docs not reimburse Tenant within 30 days of receipt of any invoice for
the cost of such cure, Tenant may terminate this Lease.
23. INSURANCE.
(a) Tenant shall keep the Building, including the Improvements, insured
against damage and destruction by fife, earthquake, tornado, windstorm,
vandalism, and other perils in such amounts as to reflect replacement cost
values.
(b) Landlord and Tenant shall each maintain contractual and comprehensive
general liability insurance, including public liability and property damage,
with a minimum combined single limit of liability of two million dollars
($2,000,000.00), adjusted annually to reflect increases in inflation, for
personal injuries or deaths of persons occurring in or about the Building and
Premises. Annually, each of Landlord and Tenant shall deliver to the other
certificates of insurers evidencing such coverage. Landlord shall name Tenant,
and Tenant shall name Landlord, as additional insureds on the foregoing
policies.
(c) Each party waives claims arising in any manner in its ("Injured Party")
favor and against the other party for loss or damage to Injured Party's property
located within or constituting a part or all of the Building but only to the
extent the loss or damage is covered by the Injured Party's insurance, or the
insurance the Injured Party is required to carry under this Section, whichever
is greater. The waiver also applies to each party's directors, officers,
employees, shareholders, and agents. The waiver docs not apply to claims caused
by a party's willful misconduct and/or negligence, or failure to comply with the
terms of this Lease.
24. ARBITRATION.
Any disputes between Landlord and Tenant that are not resolved by the
parties within ten days after either party gives notice to the other of its
desire to arbitrate the dispute, shall be settled by binding arbitration by the
American Arbitration Association in accord with its then-prevailing rules.
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The arbitrators shall have no power to change the Lease
provisions. The arbitration panel shall consist of three arbitrators, one of
whom must be a real estate attorney chosen by such arbitration panel. The
arbitrators shall award the prevailing party reasonable expenses and costs
including reasonable attorneys' fees plus interest on the amount due at 12% per
annum or the maximum then allowed by applicable law, whichever is less.
The losing party shall pay to the prevailing party the amount of the final
arbitration award. If payment is not made within 10 days after the date the
arbitration award is no longer appealable, then in addition to any remedies
under the law, if Landlord is the prevailing party, it shall have the same
remedies for failure to pay the arbitration award as it has for Tenant's failure
to pay Base Rent, and if Tenant is the prevailing party, it may deduct any
remaining unpaid award from its monthly payment of Base Rent, Additional Rent,
or other charges.
25. NOTICES AND DEMANDS.
All notices required or permitted under this Agreement shall be in writing
and shall be deemed to have been given if hand delivered, sent by recognized
overnight delivery service providing receipt of delivery, or mailed in any
United States Post Office by certified or registered mail, postage prepaid,
addressed to Landlord or Tenant at the addresses set forth in the caption to
this Lease, or at such other address provided by a party in accordance with the
provisions of this Section 26, or if sent by facsimile transmission with a
separate copy delivered or sent by any of the other means set forth above. The
initial address of the Landlord and Tenant is set forth below:
If to Landlord:
White Deer Warehousing & Distribution Center, Inc.
c/o Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
If to Tenant:
West Pharmaceutical Services, Inc.
0000 X.X. Xxxxxxx 00
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn.: Plant Manager
With a copy to:
West Pharmaceutical Services, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn.: Xx. Xxxxxxxx Xxxxxxxx
Any party shall have the right from time to time and at any time, upon at
least ten (10) days' prior written notice delivered pursuant to the terms
hereof, to change its respective address and to specify any other address within
the United States of America, provided said new address is not a post office
box.
26. MISCELLANEOUS.
(a) Amendment. This Agreement may not be modified, changed, or terminated
in whole or in part in any manner other than by an agreement in writing duly
signed by both parties.
(b) Consent or Permission. Whenever the consent, permission or approval of
either the Landlord or Tenant is required under this Lease such consent,
permission or approval shall not be unreasonably withheld or delayed. Whenever
any right of estimate, judgment, determination, decision, or promulgation is
vested in either party or their representative by this Lease, such estimate,
judgment, determination, decision, or promulgation shall be reasonable.
(c) Nonwaiver. No waiver of any provision of this Agreement shall be
implied by any failure of Tenant or Landlord to enforce any remedy for the
violation of such provision even if such violation be continued and/or repeated.
No express waiver shall affect any provision other than the one specified.
(d) Attorneys' Fees. In any litigation between the parties regarding this
Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs including attorneys' fees incurred by the prevailing
party. A party shall be considered the prevailing party if it substantially
obtains the relief it sought, either through a judgment or the losing party's
voluntary action before judgment.
(e) Governing Law. This Agreement and all questions arising hereunder shall
be construed and governed by the laws and regulations of the State or local
government where the Building is located. If any provision of this Agreement is
invalid or unenforceable for any reason, all other provisions shall be and
remain in effect.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Landlord, its successors and assigns, and shall inure to
the benefit of and be binding upon Tenant, its successors and assigns.
(g) Limitation of Landlord's Liability. There shall be no personal
liability of the Landlord or any partner, stockholder, officer, director or
other principal of Landlord in connection with this Lease. Tenant agrees to look
solely to the interest of Landlord in the Premises for the collection of any
judgment or other judicial process requiring the payment of money by Landlord in
the event of any default or breach by Landlord with respect to this Lease or in
any way relating to the Premises. No other assets of Landlord or any principal
of Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies.
(h) Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
(i) Signage. Tenant shall have the right to erect, and the responsibility
to maintain, such signage and commercial display as Tenant shall in its
discretion determine in locations in the Premises and on the Land selected by
Tenant subject to Landlord's reasonable approval. Landlord may install a marquis
on the Land, provided the marquis does not demean or interfere with visibility
of Tenant signage. Landlord shall be prohibited from erecting a "For Sale" or
"For Lease" sign outside the Building during the term of this Lease; provided,
however, that in the event Tenant shall decline to renew the Lease pursuant to
Section 2 above, Landlord shall be permitted to erect a "For Sale" sign outside
the Building during the ninety (90) day period after Tenant has provided notice
of its intent not to renew.
(j) Right of First Refusal. If a third-party makes a written offer or
letter of intent to purchase the Premises, specifying such material terms as the
purchaser, property and purchase price. Tenant shall have the first right to
purchase the Premises under the same terms. Such right must be communicated to
Tenant in writing within fifteen (15) days of the receipt by Landlord of the
third party offer, whereupon Tenant shall have fifteen (15) days to elect to
exercise the right to purchase the Premises on such terms. If Tenant fails to
exercise its right to purchase the Premises, Landlord shall have the right to
sell the Premises pursuant to the bona fide offer received by the third party.
If the sale to the third party does not close, Tenant retains the right of first
refusal on subsequent offers.
[Signatures follow on next page]
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
agreement as of the date set forth above.
WHITE DEER WAREHOUSING & DISTRIBUTION
CENTER, INC., a Pennsylvania corporation
By: ------------------------------------
Name:
Title:
WEST PHARMACEUTICAL SERVICES, INC.
By: ------------------------------------
Name:
Title:
EXHIBIT "A"
FLOOR PLAN OF PREMISES
EXHIBIT "A"
[Photo omitted- blueprint]
[Description]
Listed is the Floor Plan of Premises, along with the helicopter landing pad.
A. Front Office Exits
Nursette Room Exits
B Mechanical Room Exits
Counter Cap Room Exit
Cafeteria Exit
Shipping and Warehouse Exits (North Sides)
C. Tool Room Exit
Employee Entrance
Warehouse Exits (South Side)
Helicopter Land Pad
EXHIBIT "B"
EXISTING LEASES
LEASE AGREEMENT
This Lease is made as of June 1, I998, between WHITE DEER WAREHOUSING &
DISTRIBUTION CENTER, INC., c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx,
Xxxxxxxxxxxxxx, XX 00000 ("Landlord" and CONSPEC SYSTEMS, INC. XX # 0, XXXXX, XX
00000.
For One Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby. Landlord and Tenant agree as follows:
1. PREMISES.
Landlord leases to Tenant 4,684 rentable square feet known as Warehouse
Lease Area I and 4.684 rentable square feet in Warehouse Lease Area II; 375
square feet: in the North Office Complex area known as Lease Xxxx 000 located at
Route 15, Clinton Township, Lycoming County, Pennsylvania, as more particularly
shown (shaded in blue) on the space plan attached hereto and made a part hereof
as Exhibit "A" (the "Premises"). The Premises contains the warehouse area,
office space and improvements and other property now installed.
Tenant and its agents, employees, and invitees shall have the non-exclusive
right to the free use of certain common areas ("Common Areas") in the Building
and on the land ("Land") on which the Building is located. The Common Areas are
the restroom facilities and the lunchroom area and connecting corridors from the
North Office Complex to Warehouse, Shipping/Receiving Areas.
2. TERM.
The initial term ("Initial Term") of this Lease begins on the date (the
"Commencement Date") which is June 1, 1998, and shall end on May 31, 1999. Two
additional renewal terms are anticipated by the Tenant and Landlord.
Any subsequent extensions agreed upon by Landlord and Tenant, for a
"Renewal Term" of twelve (12) months after the expiration of the Initial Term,
such agreement to be executed by Tenant, if at all, by giving written notice not
less than ninety (90) days prior to the expiration of the Initial Term or the
then-current Renewal Term and accepted by Landlord in writing within twenty days
after receipt of the aforementioned notice. The Initial Term and any Renewal
Term are sometimes referred to together in this Lease as the "Term" hereof.
The renewal terms shall be governed by and subject to all of the terms and
conditions of the original lease, including rent.
Renewal term of lease shall include all or a portion ofthe initial term
leased space designated as Areas I, II or III as determined by Tenant and
accepted by Landlord.
3. BASE RENT: SECURITY DEPOSIT.
Tenant shall pay to Landlord at the office of Landlord, or at such other
place as Landlord may designate, monthly Base Rent during the Initial Term of
$3,474.14 or a total annual base rent of $41,689.72 computed as shown in Exhibit
"B".
All of these payments shall be made on or before the first day of each and
every month following the Commencement Date during the Term, without any set-off
or deduction except as herein specified. If the Commencement Date occurs on
other than the first day of a month, the Base Rent for such month shall be
pro-rated.
Further, the Tenant is required to share in the prorata share of the
expenses incurred for the real estate taxes, insurance, lawn care and snow
removal on a monthly basis, computed as shown in Exhibit "B".
Further, the Tenant is required to share in the tenant Access Area, the
prorata expenses if assessment in accordance with the lease agreement with the
West Company requires the Landlord to incur these costs. These costs consist of
mechanical rooms, sewage treatment facility, water tower, transformer bank and
pump house. The Tenant has a maximum square foot cost for the warehouse portion
of the facility of $5.50 with the base rent, prorate expenses, and the tenant
access area prorata costs combined. The office area is exempt from the tenant
access area prorata costs.
As security for performance of its obligations hereunder, Tenant has paid
to Landlord upon execution of this Lease, and agrees to maintain hereafter, a
security deposit in the amount equal to the first month's Base Rent, receipt of
which is hereby acknowledged by Landlord. Upon Tenant's default (as described in
paragraph 16 below), Landlord may from time to time and without prejudice to any
other remedy, use the security deposit to the extent necessary to make good any
arrears of Base Rent or Additional Rent, or any other damage, injury, expense or
liability caused to Landlord by such default. The remaining balance of such
security shall be returned by Landlord to Tenant within a reasonable time after
termination of this Lease; provided, however, Landlord shall not be obligated to
return the remaining balance of such security deposit until all rent payments
due from Tenant to Landlord shall have been made in full. The security deposit
shall not be considered an advance payment of rent or a measure of Landlord's
damages in case of default by Tenant. Tenant shall receive no interest on such
security deposit. In the event of the sale or transfer of Landlord's interest in
the Building, Landlord shall have the right to transfer the security deposit to
the purchaser or transferee and upon such transfer Tenant shall look only to the
new Landlord for the return of the security deposit and Landlord shall thereupon
be released from all liability to Tenant for the return of or accounting for
such security deposit.
4. IMPROVEMENTS.
Tenant accepts the Premises in "as is" condition. Tenant shall be
responsible for the cost of all alterations, additions, and improvements desired
by Tenant therein or thereon, which alterations, additions and improvements may
be made only after the prior written approval of Landlord.
Maintenance and repair of the building and its components is the sole and
exclusive obligation of the Landlord and that the prorata annual expense charges
will not include capital and other expenditures which are the responsibility of
the Landlord. Tenant will be responsible for any damage resulting directly and
exclusively by the actions of its employees and/or agents.
5. USE OF THE PREMISES.
The Premises may be used by Tenant for any light manufacturing and research
and development purposes. Tenant shall have exclusive use and access to the
rented area of the Building (shaded in blue) plus non-exclusive access to the
common area of restrooms, lunch room and connecting corridors from north office
complex to warehouse shipping/receiving areas, as such are identified (shaded in
yellow) in Exhibit "A" hereto.
6. ALTERATIONS AND IMPROVEMENTS
Tenant shall not make alterations, additions or improvement to the Premises
(the "Alterations") without Landlord's prior written consent. Tenant shall
procure all governmental permits and authorizations for the Alterations, and
obtain and provide to Landlord an official certificate of occupancy and/or
compliance upon completion of the alterations, if appropriate. Tenant shall
construct the Alterations in a good and workmanlike manner utilizing materials
of first class quality and in compliance with all laws and governmental
regulations. Any contractors used must be approved in writing by the Landlord.
Alterations shall be the property of Landlord and shall remain on the Premises
upon termination of the Lease.
7. COVENANT AGAINST XXXXX.
Tenant shall not have any right to subject Landlord's interest in the
Property to any mechanic's lien or any other lien whatsoever. If any mechanic's
lien or other lien, charge or order for payment of money shall be filed as a
result of the act or omission of Tenant, Tenant shall cause such lien, charge or
order to be discharged or appropriately bonded within thirty (3)) days after
notice from Landlord thereof, and Tenant shall indemnify and save Landlord
harmless from all liabilities and costs resulting therefrom.
8. ENVIRONMENTAL LAW COMPLIANCE
(a) Tenant agrees that it shall, at its sole cost and expense, fulfill,
observe and comply with all of the applicable terms and provisions of all
federal, state and local environmental laws now in effect or hereinafter
enacted, as any of the same may be amended from time to time, and all rules,
regulations, ordinances, opinions, orders and directives issued or promulgated
pursuant thereto or in connection therewith, as may relate to Tenant's
operations and/or possession or use of the Premises whether pursuant to this
Lease or otherwise.
(b) Without limiting the foregoing, Tenant agrees, to indemnify and hold
Landlord harmless from and against any and all liability, penalties losses,
expenses, damages, costs, claims, causes of action, judgments and/or the like,
of whatever nature, including but not limited to, reasonable attorneys' fees to
the extent said lien, encumbrance, liability, penalty, loss, expense, damage,
cost, claim, cause of action, judgment and/or the like arise from or in
connection with Tenant's failure or inability to observe or comply with all
environmental laws.
(c) Tenant agrees that each of the foregoing provisions of this Section 8
shall survive the expiration or earlier termination of the term of this Lease.
(d) Landlord agrees that throughout the Term of this Lease, Landlord will
not give any other person or entity the right to generate, process, manufacture,
store, handle, treat, release, discharge or dispose of any Hazardous Substances
at the Property.
(e) Tenant agrees that throughout the term of this Lease, Tenant will
provide to the Landlord the Material Safety Data Sheets showing the list of
chemicals maintained and controlled by the Tenant. An initial listing of all MSD
sheets will be provided by Tenant to Landlord within (30) days from the
effective date of agreement with subsequent updates issued by Tenant to Landlord
at maximum quarterly intervals.
9. CASUALTY.
(a) If the Building is damaged by fire or other casualty, and the Building
cannot be fully repaired within ninety (90) days after such casualty occurred,
then, Tenant may elect to terminate this Lease by giving written notice to
Landlord within thirty (30) days after becoming aware of the occurrence of the
casualty. If the Lease is not so terminated, Landlord shall repair damage as
soon as reasonably possible, in which event this Lease shall remain in full
force and effect (but Tenant shall then have the right, prior to the completion
of the repairs or Tenant's taking possession of the Premises, to terminate this
Lease if the Building is not fully repaired within ninety (90) days after such
casualty occurred.
10. CONDEMNATION.
If any portion of the Land and/or Building shall be taken under the power
of eminent domain or sold under the threat thereof ("Condemnation") and Tenant's
use of the Premises is materially adversely affected in the reasonable opinion
of Tenant exercised in good faith, Tenant may terminate this Lease as of the
date on which title to the Property or portion thereof shall vest in the
condemning authority.
11. SURRENDER OF PREMISES.
Upon termination of the Lease, Tenant shall surrender the Premises to
Landlord broom clean, and in good order and condition, except for ordinary wear
and tear, damage by casualty which Tenant was not obligated to remedy under
Section 9. Tenant shall repair any damage to the Premises caused by the removal
by Tenant of any equipment and machinery. All equipment, machinery and other
personal property of Tenant remaining on the Premises after Tenant's removal
shall be deemed abandoned and may be retained by Landlord.
12. COMPLIANCE WITH LAWS.
(a) Tenant shall comply with all laws, rules, ordinances, orders and
regulations of any federal, state and local authority which are applicable to
its manner of use and operation of the Premises. Nothing herein contained shall
be deemed to impose any obligation upon Tenant to make any structural
alterations, improvements or repairs to the Premises.
(b) Landlord shall comply with all rules, regulations, orders, laws,
ordinances and legal requirements and standards issued thereunder which affect
(1) the Premises or the Building; or (2) which related to the performance by
Landlord of any duties or obligations to be performed by Landlord under this
Lease. Without limiting the foregoing, Landlord shall comply or cause the
Building to comply with all environmental, fire, and health and safety laws,
regulations and codes.
(c) Landlord covenants that the building has and will continue to fully
comply, and observe, prior to and during the lease, with all environmental laws,
rules and regulations at its sole cost and expense (other than those for which
the Tenant may be responsible as a result of its use of the building during the
lease). Landlord will indemnify and hold Tenant harmless and defend Tenant from
and against all environmental noncompliance claims (other than those for which
the Tenant may be responsible as a result of its use of the building during the
lease).
13. ESTOPPEL CERTIFICATE
Tenant and Landlord each agree that from time to time, upon not less than
30 days prior written request by Landlord or Tenant, each will deliver to the
other a statement in writing certifying to the best of its knowledge (a) that
this Agreement is unmodified and in full force and effect (or if there have been
modifications that the Agreement as modified is in full force and effect; (b)
the dated to which the rent and other charges have been paid; and (c) that
neither party is in default under any provision of this Agreement, or if in
default, the nature thereof, provided said statements are then true.
14. SUBORDINATION.
This Lease shall be subordinate and subject to all ground and underlying
leases and to any mortgages thereon and to any mortgages covering the fee of the
Building, or Land, that now or may hereafter affect the Building, or Land and to
all renewals, modifications or replacements thereof. Provided, however, that
with respect to any existing ground lease, underlying lease and/or mortgage,
within thirty (30) days after Tenant executes this Lease and, with respect to
any future ground lease, underlying lease and/or mortgage, on or before the
effective date thereof, Landlord shall obtain from its ground lessor, underlying
lessor and/or mortgagee a written agreement with Tenant which shall be binding
on their respective successors and assigns and shall provide that so long as
this Lease shall be in full force and effect Tenant's possession and use of the
Premises and Tenant's other rights under this Lease, shall not be affected or
disturbed by reason of the subordination to or any modification of or default
under the ground or underlying lease or mortgage. If the ground or underlying
lessor and/or mortgagee or any successor in interest shall succeed to the rights
of Landlord under this Lease, whether through possession, judicial or
foreclosure action, or delivery of a deed, Tenant will attorn to and recognize
such successor-landlord and Tenant's landlord and the successor-landlord will
accept such attornment and recognize Tenant's rights of possession and use of
the Leased Premises in accordance with the provisions of this Lease.
15. RULES AND REGULATIONS.
Tenant shall abide by and observe such reasonable rules and regulations as
may be issued by Landlord for the Building. Landlord shall (a) not discriminate
against Tenant in enforcing the rules and regulations; and (b) not unreasonably
withhold or delay its consent for any approval required by Tenant under the
rules and regulations. Landlord shall use its best efforts to obtain compliance
by all tenants and other occupants in the Building with the rules and
regulations. If there is a conflict of ambiguity created by the provisions of
this Lease and any portion of the rules and regulations, Landlord decision is
binding.
16. DEFAULT BY TENANT.
If Tenant shall default in the payment of Base Rent and such default shall
continue for 15 days after notice thereof from Landlord, or if Tenant shall
default in the performance of any of its other obligations under this Lease and
if such default shall continue for 30 days after notice thereof from Landlord
specifying in what manner Tenant has defaulted (except that if such default
cannot be cured within said 30 day period, this period shall be extended for a
reasonable additional time, provided that Tenant commences to cure such default
within the 30 day period and proceeds diligently thereafter to effect such
cure); then Landlord may (1) cure such default and any costs and expenses
incurred by Landlord therefore shall be deemed Additional Rent, or (2) lawfully
enter the Premises and repossess the same as the former estate of Landlord and
expel Tenant and those claiming under Tenant without being deemed guilty of any
manner of trespass and without prejudice to any other remedies which Landlord
may have for arrears of Base Rent or Additional Rent or preceding breach of
covenant, and upon entry as aforesaid, this lease shall terminate and Tenant
covenants that in case of such termination, it will indemnify Landlord against
all unavoidable loss of Base Rent which Landlord may incur by reason of such
termination during the residue of the term of this Lease.
17. SUSPENSION OF TENANT DEFAULT.
If Tenant shall dispute, in good faith, any Additional Rent or other sum
(other than Base Rent) claimed by Landlord hereunder and Tenant shall give
Landlord written notice specifying in reasonable detail the basis for its
dispute, Tenant may not withhold payment of the particular amount in dispute.
Tenant and Landlord shall proceed diligently to resolve any such dispute by
agreement or arbitration in accordance with Section 20 or otherwise. If the
dispute is resolved, in Landlord's favor, Tenant will reimburse Landlord the
amount in dispute plus interest at 1% over prime from the date of objection by
Tenant.
18. DEFAULT BY LANDLORD.
If Landlord defaults in the performance or observance of any provision of
this Lease, Tenant shall give Landlord notice specifying in what manner Landlord
has defaulted and if such default shall not be cured by Landlord within the
period of time provided for elsewhere in this Lease, and otherwise within 30
days after the delivery of such notice (except that if such default cannot be
cured with said 30 day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the 30 day period and proceeds diligently thereafter to effect such cure);
Tenant may cure such default and/or withhold payment of Base Rent due and to
accrue hereunder (to the extent necessary to cover the costs incurred and/or
estimated by Tenant to cure such default) so long as Landlord remains in
default, or invoice Landlord for costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs) incurred by Tenant
therefore. If Tenant cannot reasonably cure Landlord's default or if Landlord
does not reimburse Tenant within 30 days or receipt of any invoice for the cost
of such cure, Tenant may terminate this Lease.
19. INSURANCE.
(a) Landlord shall keep the Building, including the improvements (but
specifically excluding Tenant's leasehold improvements, which shall be insured
separately by Tenant) insured against damage and destruction by fire,
earthquake, vandalism, and other perils in such amounts as are commercially
prudent in Landlord and its mortgagee's judgment. The insurance shall include an
extended coverage endorsement of the kind required by an institutional lender to
repair and restore the Building.
(b) Landlord and Tenant shall each maintain contractual and comprehensive
general liability insurance, including public liability and property damage,
with a minimum combined single limit of liability of two million dollars
($2,000,000.00) for personal injuries or deaths of persons occurring in or about
the Building or Premises. Upon request from time to time by the other party,
each of Landlord and Tenant shall deliver to the other certificates of insurers
evidencing such coverage.
(c) Each party waives claims arising in any manner in its ("Injured Party")
favor and against the other for loss or damage to Injured Party's property
located within or constituting a part or all of the Building but only to the
extent the loss or damage is covered by the Injured Party's insurance, or the
insurance the Injured Party is required to carry under this Section, whichever
is greater. The waiver also applies to each party's directors, officers,
employees, shareholders, and agents. The waiver does not apply to claims caused
by a party's willful misconduct.
20. ARBITRATION.
Any disputes between Landlord and Tenant that are not resolved by the
parties within ten days after either party gives notice to the other of its
desire to arbitrate the dispute, shall be settled by binding arbitration by the
American Arbitration Association in accord with its then prevailing rules.
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The arbitrators, one of whom must be a real estate attorney
actively engaged in the Practice of law for at least the last ten years. The
arbitrators shall award the prevailing party reasonable expenses and costs
including reasonable attorney's fees plus interest on the amount due at 12% per
annum or the maximum then allowed by applicable law, whichever is less.
The losing party shall pay to the prevailing party the amount of the final
arbitration award. If payment is not made within 10 days after the date the
arbitration award is no longer appealable, then in addition to any remedies
under the law, if Landlord is the prevailing party, it shall have the same
remedies for failure to pay the arbitration award as it has for Tenant's failure
to pay Base Rent, and if Tenant is the prevailing party, it may deduct any
remaining unpaid award from its monthly payment of Base Rent, Additional Rent,
or other charges.
21. NOTICES AND DEMANDS.
All notices required or permitted under this Agreement shall be in writing
and shall be deemed to have been given if hand delivered, sent by recognized
overnight delivery service providing receipt of delivery, or mailed in any
United States Post Office by certified or registered mail, postage prepaid,
addressed to Landlord or Tenant at the addresses set forth in the caption to
this Lease, or at such other address provided by a party in accordance with the
provisions of this Section 21, or if sent by facsimile transmission with a
separate copy delivered or sent by any of the other means set forth above.
22. MISCELLANEOUS.
(a) Amendment. This Agreement may not be modified, changed, or terminated
in whole or in part in any manner other than by an agreement in writing duly
signed by both parties.
(b) Consent or Permission. Whenever the consent, permission or approval of
either the Landlord or Tenant is required under this Lease, such consent,
permission or approval shall not be unreasonably withheld or delayed. Whenever
any right of estimate, judgment, determination, decision, or promulgation is
vested in either party or their representative by this Lease, such estimate,
judgment, determination, decision, or promulgation shall be reasonable.
(c) Nonwaiver. No waiver of any provision of this Agreement shall be
implied by any failure of Tenant or Landlord to enforce any remedy for the
violation of such provision even if such violation be continued and/or repeated.
No express waiver shall affect any provision other than the one specified.
(d) Attorneys' Fees. In any litigation between the parties regarding this
Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs including attorneys' fees incurred by the prevailing
party. A party shall be considered the prevailing party if it substantially
obtains the relief it sought, either through a judgment or the losing party's
voluntary action before judgment.
(e) Governing Law. This Agreement and all questions arising hereunder shall
be construed and governed by the laws of the State where the demised premises
are located. If any provision of this Agreement is invalid or unenforceable for
any reason, all other provisions shall be and remain in effect.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Landlord, its successors and assigns, and shall inure to
the benefit of and be binding upon Tenant, its successors and assigns.
(g) Limitation of Landlord's Liabilities. There shall be no personal
liability of the Landlord or any partner, stockholder, officer, director or
other principal of Landlord in connection with this Lease. Tenant agrees to look
solely to the interest of Landlord in the Property for the collection of any
judgment or other judicial process requiring the payment of money by Landlord in
the event of any other assets of Landlord or any principal of Landlord shall be
subject to levy, execution of other procedures for the satisfaction of Tenant's
remedies.
(h) Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
(i) Loading Docks. Landlord and Tenant acknowledge and agree that (A) the
loading docks nearest the warehouse area shall be available throughout the term
of this Lease for Tenant's non-exclusive use, and (B) the remaining loading
docks shall be for the exclusive use of The West Company; Landlord and Tenant
agree to cooperate to modify the foregoing use, and to share the loading docks,
nearest the warehouse area, during the term of this Lease. At selected times,
the overhead door area will need to be accessed by other Tenants and such
cooperation is required.
(j) Signage. Tenant shall have the right to erect and the responsibility to
maintain, such signage and commercial display as Landlord shall in its
discretion determine in locations on the Premises and on the Land selected by
Landlord subject to Landlord's approval. Tenant may install a marquis on the
Land at the Tenant's sole expense provided the marquis does not demean or
interfere with visibility of other Tenant signage, and written approval for the
design and location on the marquis has been obtained from the Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
agreement as of the date set forth above.
WHITE DEER WAREHOUSING &
DISTRIBUTION CENTER,
a Pennsylvania corporation
By: -------------------------------------
Name:
Title:
CONSPEC SYSTEMS, INC.
By: -------------------------------------
Name:
Title:
EXHIBIT "A"
FLOOR PLAN OF PREMISES (SHADED IN BLUE)
AND TENANT ACCESS AREAS (SHADED IN YELLOW)
EXHIBIT "A"
[Photo omitted- blueprint]
[Description]
Listed is the Floor Plan of Premises, along with the helicopter landing pad.
A. Front Office Exits
Nursette Room Exits
B Mechanical Room Exits
Counter Cap Room Exit
Cafeteria Exit
Shipping and Warehouse Exits (North Sides)
C. Tool Room Exit
Employee Entrance
Warehouse Exits (South Side)
Helicopter Land Pad
White Deer Warehousing and Distribution Center, Inc.
Lease Agreement With
Conspec Systems, Inc.
----------------------------------------------------------------------------------------------
Warehouse Lease Area I 4684 SF @ 4.15 = 19,438.60
Base Rent
Warehouse area consists of 4.684 SF of useable
space. Base rent includes an energy-controlled
environment between 65 - 80, lighting, water
and air supply of 90 P.S.I. provided.
----------------------------------------------------------------------------------------------
Warehouse Lease Area II 4684 SF @ 4.15 = 19,438.60
Base Rent
Warehouse area consists of 4,684 SF of useable
space. Base rent includes an energy-controlled
environment between 65 - 80, lighting, water
and air supply of 90 P.S.I. provided.
----------------------------------------------------------------------------------------------
Lease Area III 375 SF @ 7.50 = 2,812.50
Office Space Base Rent
Office area consisting of 375 SF of useable space
at an agreed rental cost of 7.50 SF inclusive of
all overhead expenses.
----------------------------------------------------------------------------------------------
Rounding 12 months @ 3,474.14 = 41,689.72
Total Base Rent
----------------------------------------------------------------------------------------------
(continued)
Exhibit "B"
White Deer Warehousing and Distribution Center, Inc.
Lease Agreement With
Conspec Systems, Inc.
--------------------------------------------------------------------------------
Estimated Prorata Expenses
Real Estate Taxes 46,637.98 x 9,368/197,411 = 2,213.17
Insurance 33,893.00 x 9,368/197,411 = 1,608.37
Lawn Care 7,600.00 x 9,368/197,411 = 360.65
Snow Removal 600.00 x 9,368/197,411 = 28.47
Total Estimated Prorata Expenses 4,210.66
--------------------------------------------------------------------------------
Prorata expenses will be billed on a monthly basis over the term of the lease.
Caging for Warehouse Area
WDWDC will provide, without cost to tenant, materials to construct the caging
that will consist of a combination of metal wire caging (7'/8' height) and
panels of sheet rock/wood studding 8' in height. Conspec Systems, Inc. will
provide the labor dollars and personnel without any cost to landlord for
installation of the above materials. Coordination and supervision of the
installation will be under the control of WDWDC.
Exhibit "B"
LEASE AGREEMENT
This Lease is made as of January 26, 1998, between WHITE DEER WAREHOUSING &
DISTRIBUTION CENTER, INC., c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx,
Xxxxxxxxxxxxx, XX 00000 ("Landlord") and LEEP BUILDING SYSTEMS, c/o Grant
Record, 000 Xxxx Xxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000.
For One Dollar ($1.00) and other good arid valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, Landlord and Tenant agree as follows:
1. PREMISES.
Landlord leases to Tenant 2,900 rentable square feet located at Route 15,
Clinton Township, Lycoming County, Pennsylvania, as more particularly shown
(shaded in blue) on the space plan attached hereto and made a part hereof as
Exhibit "A" (the "Premises"). The Premises contains the caged area, office space
and improvements, and other property now installed.
Tenant and its agents, employees, and invitees shall have the non-exclusive
right to the free use of certain common areas ("Common Areas") in the Building
and on the land ("Land") on which the Building is located. The Common Areas are
the restroom facilities and the lunchroom area only.
2. TERM.
The initial term ("Initial Term") of this Lease begins on the date (the
"Commencement Date") which is February 1, 1998, and shall end on January 31,
1999.
Any subsequent extensions agreed upon by Landlord and Tenant, for a
"Renewal Term" of twelve (12) months after the expiration of the Initial Term,
such agreement to be executed by Tenant, if at all, by giving written notice not
less than ninety (90) days prior to the expiration of the Initial Term or the
then-current Renewal Term and accepted by Landlord in writing within twenty days
after receipt of the aforementioned notice. The Initial Term and any Renewal
Term are sometimes referred to together in this Lease as the "Term" hereof.
3. BASE RENT; SECURITY DEPOSIT.
Tenant shall pay to Landlord at the office of Landlord, or at such other
place as Landlord may designate, monthly Base Rent during the Initial Term of
$l,350.00 or a total annual rent of $16,200.00.
All of these payments shall be made on or before the first day of each and
every month following the Commencement Date during the Term, without any set-off
or deduction except as herein specified. If the Commencement Date occurs on
other than the first day of a month, the Base Rent for such month shall be pro
rated.
As security for performance of its obligations hereunder, Tenant has paid
to Landlord upon execution of this Lease, and agrees to maintain hereafter, a
security deposit in the amount equal to the first month's Base Rent, receipt of
which is hereby acknowledged by Landlord. Upon Tenant's default (as described in
paragraph 16 below), Landlord may from time to time and without prejudice to any
other remedy, use the security deposit to the extent necessary to make good any
arrears of Base Rent or Additional Rent, or any other damage, injury, expense or
liability caused to Landlord by such default. The remaining balance of such
security shall be returned by Landlord to Tenant within a reasonable time after
termination of this Lease; provided, however, Landlord shall not be obligated to
return the remaining balance of such security deposit until all rent payments
due from Tenant to Landlord shall have been made in full. The security deposit
shall not be considered an advance payment of rent or a measure of Landlord's
damages in case of default by Tenant. Tenant shall receive no interest on such
security deposit. In the event of the sale or transfer of Landlord's interest in
the Building, Landlord shall have the right to transfer the security deposit to
the purchaser or transferee and upon such transfer Tenant shall look only to the
new Landlord for the return of the security deposit and Landlord shall thereupon
be released from all liability to Tenant for the return of or accounting for
such security deposit.
4. IMPROVEMENTS.
Tenant accepts the Premises in "as is" condition. Tenant shall be
responsible for the cost of all alterations, additions, and improvements desired
by Tenant therein or thereon, which alterations, additions and improvements may
be made only after the prior written approval of Landlord.
5. USE OF PREMISES.
The Premises may be used by Tenant for any light manufacturing of building
systems. Tenant shall have non-exclusive use and access to the rented area of
the Building plus common area of restrooms and lunch room and non-exclusive
access thereto, as such are identified (shaded in yellow) in Exhibit "B" hereto.
6. ALTERATIONS AND IMPROVEMENTS.
Tenant shall not make alterations, additions or improvements to the
Premises (the "Alterations") without Landlord's prior written consent. Tenant
shall procure all governmental permits and authorizations for the Alterations,
and obtain and provide to Landlord an official certificate of occupancy and/or
compliance upon completion of the alterations, if appropriate. Tenant shall
construct the Alterations in a good and workmanlike manner utilizing materials
of first class quality and in compliance with all laws and governmental
regulations. Any contractors used must be approved in writing by the Landlord.
Alterations shall be the property of Landlord and shall remain on the Premises
upon termination of the Lease.
7. COVENANT AGAINST LIENS.
Tenant shall not have any right to subject Landlord's interest in the
Property to any mechanic's lien or any other lien whatsoever. If any mechanic's
lien or other lien, charge or order for payment of money shall be filed as a
result of the act or omission of Tenant, Tenant shall cause such lien, charge or
order to be discharged or appropriately bonded within thirty (30) days after
notice from Landlord thereof, and Tenant shall indemnify and save Landlord
harmless from all liabilities and costs resulting therefrom.
8. ENVIRONMENTAL LAW COMPLIANCE
(a) Tenant agrees that it shall, at its sole cost and expense, fulfill,
observe and comply with all of the applicable terms and provisions of all
federal, state and local environmental laws now in effect or hereinafter
enacted, as any of the same may be amended from time to time, and all rules,
regulations, ordinances, opinions, orders and directives issued or promulgated
pursuant thereto or in connection therewith, as may relate to Tenant's
operations and/or possession or use of the Premises whether pursuant to this
Lease or otherwise.
(b) Without limiting the foregoing, Tenant agrees, to indemnify and hold
Landlord harmless from and against any and all liability, penalties, losses,
expenses, damages, costs, claims, causes of action, judgments and/or the like,
of whatever nature, including but not limited to, reasonable attorneys' fees, to
the extent said lien, encumbrance, liability, penalty, loss, expense, damage,
cost, claim, cause of action, judgment and/or the like arise from or in
connection with Tenant's failure or inability to observe or comply with all
environmental laws.
(c) Tenant agrees that each of the foregoing provisions of this Section 8
shall survive the expiration or earlier termination of the term of this Lease.
(d) Landlord agrees that throughout the Term of this Lease, Landlord will
not give any other person or entity the right to generate, process, manufacture,
store, handle, treat, release, discharge or dispose of any Hazardous Substances
at the Property.
(e) Tenant agrees that throughout the term of this Lease, Tenant will
provide to the Landlord the Material Safety Data Sheets showing the list of
chemicals maintained and controlled by the Tenant on a monthly basis.
9. CASUALTY.
(a) If the Building is damaged by fire or other casualty, and the Building
cannot be fully repaired within ninety (90) days after such casualty occurred,
then, Tenant may elect to terminate this Lease by giving written notice to
Landlord within thirty (30) days after becoming aware of the occurrence of the
casualty. If this Lease is not so terminated, Landlord shall repair damage as
soon as reasonably possible, in which event this Lease shall remain in full
force and effect (but Tenant shall then have the right, prior to the completion
of the repairs or Tenant's taking possession of the Premises, to terminate this
Lease if the Building is not fully repaired within ninety (90) days after such
casualty occurred).
10. CONDEMNATION.
If any portion of the Land and/or Building shall be taken under the power
of eminent domain or sold under the threat thereof ("Condemnation") and Tenant's
use of the Premises is materially adversely affected in the reasonable opinion
of Tenant exercised in good faith, Tenant may terminate this Lease as of the
date on which title to the Property or portion thereof shall vest in the
condemning authority.
11. SURRENDER OF PREMISES.
Upon termination of the Lease, Tenant shall surrender the Premises to
Landlord broom clean, and in good order and condition, except for ordinary wear
and tear, damage by casualty which Tenant was not obligated to remedy under
Section 9. Tenant shall repair any damage to the Premises caused by the removal
by Tenant of any equipment and machinery. All equipment, machinery and other
personal property of Tenant remaining on the Premises after Tenant's removal
shall be deemed abandoned and may be retained by Landlord.
12. COMPLIANCE WITH LAWS.
(a) Tenant shall comply with all laws, rules, ordinances, orders and
regulations of any federal, state and local authority which are applicable to
its manner of use and operation of the Premises. Nothing herein contained shall
be deemed to impose any obligation upon Tenant to make any structural
alterations, improvements or repairs to the Premises.
(b) Landlord shall comply with all rules, regulations, orders, laws,
ordinances and legal requirements and standards issued thereunder which affect
(1) the Premises or the Building; or (2) which related to the performance by
Landlord of any duties or obligations to be performed by Landlord under this
Lease. Without limiting the foregoing, Landlord shall comply or cause the
Building to comply with all environmental, fire, and health and safety laws,
regulations and codes.
13. ESTOPPEL CERTIFICATE.
Tenant and Landlord each agree that from time to time, upon not less than
30 days prior written request by Landlord or Tenant, each will deliver to the
other a statement in writing certifying to the best of its knowledge (a) that
this Agreement is unmodified and in full force and effect (or if there have been
modifications that the Agreement as modified is in full force and effect); (b)
the dated to which the rent and other charges have been paid; and (c) that
neither party is in default under any provision of this Agreement, or if in
default, the nature thereof, provided said statements are then true.
14. SUBORDINATION.
This Lease shall be subordinate and subject to all ground and underlying
leases and to any mortgages thereon and to any mortgages covering the fee of the
Building, or Land, that now or may hereafter affect the Building, or Land and to
all renewals, modifications or replacements thereof, provided, however, that
with respect to any existing ground lease, underlying lease and/or mortgage,
within thirty (30) days after Tenant executes this Lease and, with respect to
any future ground lease, underlying lease and/or mortgage, on or before the
effective date thereof, Landlord shall obtain from its ground lessor, underlying
lessor and/or mortgagee a written agreement with Tenant which shall be binding
on their respective successors and assigns and shall provide that so long as
this Lease shall be in full force and effect Tenant's possession and use of the
Premises and Tenants' other rights under this Lease, shall not be affected or
disturbed by reason of the subordination to or any modification of or default
under the ground or underlying lease or mortgage. If the ground or underlying
lessor and/or mortgagee or any successor in interest shall succeed to the rights
of Landlord under this Lease whether through possession, judicial or foreclosure
action, or delivery of a deed, Tenant will attorn to and recognize such
successor-landlord and Tenant's landlord and the successor-landlord will accept
such attornment and recognize Tenant's rights of possession and use of the
Leased Premises in accordance with the provisions of this Lease.
15. RULES AND REGULATIONS.
Tenant shall abide by and observe such reasonable rules and regulations as
may be issued by Landlord for the Building. Landlord shall (a) nor discriminate
against Tenant in enforcing the rules and regulations; and (b) not unreasonably
withhold or delay its consent for any approval required by Tenant under the
rules and regulations. Landlord shall use its best efforts to obtain compliance
by all tenants and other occupants in the Building with the rules and
regulations. If there is a conflict or ambiguity created by the provisions of
this Lease and any portion of the rules and regulations, Landlord decision is
binding.
16. DEFAULT BY TENANT.
If Tenant shall default in the payment of Base Rent and such default shall
continue for 15 days after notice thereof from Landlord, or if Tenant shall
default in the performance of any of its other obligations under this Lease and
if such default shall continue for 30 days after notice thereof from Landlord
specifying in what manner Tenant has defaulted (except that if such default
cannot be cured within said 30 day period, this period shall be extended for a
reasonable additional time, provided that Tenant commences to cure such default
within the 30 day period and proceeds diligently thereafter to effect such
cure); then Landlord may (1) cure such default and any costs and expenses
incurred by Landlord therefore shall be deemed Additional Rent, or (2) lawfully
enter the Premises and repossess the same as the former estate of Landlord and
expel Tenant and those claiming under Tenant without being deemed guilty of any
manner of trespass and without prejudice to any other remedies which Landlord
may have for arrears of Base Rent or Additional Rent or preceding breach of
covenant, and upon entry as aforesaid, this lease shall terminate and Tenant
covenants that in case of such termination, it will indemnify Landlord against
all unavoidable loss of Base Rent which Landlord may incur by reason of such
termination during the residue of the term of this Lease.
17. SUSPENSION OF TENANT DEFAULT.
If Tenant shall dispute, in good faith, any Additional Rent or other sum
(other than Base Rent) claimed by Landlord hereunder and Tenant shall give
Landlord written notice specifying in reasonable detail the basis for its
dispute, Tenant may not withhold payment of the particular amount in dispute.
Tenant and Landlord shall proceed diligently to resolve any such dispute by
agreement or arbitration in accordance with Section 20 or otherwise. If the
dispute is resolved, in Landlord's favor, Tenant will reimburse Landlord the
amount in dispute plus interest at I % over prime from the date of objection by
Tenant.
18. DEFAULT BY LANDLORD.
If Landlord defaults in the performance or observance of any provision of
this Lease, Tenant shall give Landlord notice specifying in what manner Landlord
has defaulted and if such default shall not be cured by Landlord within the
period of time provided for elsewhere in this Lease, and otherwise within 30
days after the delivery of such notice (except that is such default cannot be
cured within said 30 day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the 30 day period and proceeds diligently thereafter to effect such cure);
Tenant may cure such default and/or withhold payment of Base Rent and Additional
Rent due and to accrue hereunder (to the extent necessary to cover the costs
incurred and/or estimated by Tenant to cure such default) so long as Landlord
remains in default, or invoice Landlord for costs and expenses (including,
without limitation, reasonable attorneys' fees and court costs) incurred by
Tenant therefor. If Tenant cannot reasonably cure Landlord's default or if
Landlord does not reimburse Tenant within 30 days of receipt of any invoice for
the cost of such cure, Tenant may terminate this Lease.
19. INSURANCE.
(a) Landlord shall keep the Building, including the Improvements (but
specifically excluding Tenant's leasehold improvements, which shall be insured
separately by Tenant), insured against damage and destruction by fire,
earthquake, vandalism, and other perils in such amounts as are commercially
prudent in Landlord and its mortgagee's judgment. The insurance shall include an
extended coverage endorsement of the kind required by an institutional lender to
repair and restore the Building.
(b) Landlord and Tenant shall each maintain contractual and comprehensive
general liability insurance, including public liability and property damage,
with a minimum combined single limit of liability of two million dollars
($2,000,000.00) for personal injuries or deaths of persons occurring in or about
the Building and Premises. Upon request from time to time by the other party,
each of Landlord and Tenant shall deliver to the other certificates of insurers
evidencing such coverage.
(c) Each party waives claims arising in any manner in its ("Injured Party")
favor and against the other party for loss or damage to Injured Party's property
located within or constituting a part or all of the Building but only to the
extent the loss or damage is covered by the Injured Party's insurance, or the
insurance the Injured Party is required to carry under this Section, whichever
is greater. The waiver also applies to each party's directors, officers,
employees, shareholders, and agents. The waiver does not apply to claims caused
by a party's willful misconduct.
20. ARBITRATION.
Any disputes between Landlord and Tenant that are not resolved by the
parties within ten days after either party gives notice to the other of its
desire to arbitrate the dispute, shall be settled by binding arbitration by the
American Arbitration Association in accord with its then prevailing rules.
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The arbitrators, one of whom must be a real estate attorney
actively engaged in the Practice of law for at least the last ten years. The
arbitrators shall award the prevailing party reasonable expenses and costs
including reasonable attorney's fees plus interest on the amount due at 12% per
annum or the maximum then allowed by applicable law, whichever is less.
The losing party shall pay to the prevailing party the amount of the final
arbitration award. If payment is not made within 10 days after the date the
arbitration award is no longer appealable, then in addition to any remedies
under the law, if Landlord is the prevailing party, it shall have the same
remedies for failure to pay the arbitration award as it has for Tenant's failure
to pay Base Rent, and if Tenant is the prevailing party, if may deduct any
remaining unpaid award from its monthly payment of Base Rent, Additional Rent,
or other charges.
21. NOTICES AND DEMANDS.
All notices required or permitted under this Agreement shall be in writing
and shall be deemed to have been given if hand delivered, sent by recognized
overnight delivery service providing receipt of delivery, or mailed in any
United States Post Office by certified or registered mail, postage prepaid,
addressed to Landlord or Tenant at the addresses set forth in the caption to
this Lease, or at such other address provided by a party in accordance with the
provisions of this Section 21, or if sent by facsimile transmission with a
separate copy delivered or sent by any of the other means set forth above.
22. MISCELLANEOUS.
(a) Amendment. This Agreement may not be modified, changed, or terminated
in whole or in part in any manner other than by an agreement in writing duly
signed by both parties.
(b) Consent or Permission. Whenever the consent, permission or approval of
either the Landlord or Tenant is required under this Lease such consent,
permission or approval shall not be unreasonably withheld or delayed. Whenever
any right of estimate, judgment, determination, decision, or promulgation is
vested in either party or their representative by this Lease, such estimate,
judgment, determination, decision, or promulgation shall be reasonable.
(c) Nonwaiver. No waiver of any provision of this Agreement shall be
implied by any failure of Tenant or Landlord to enforce any remedy for the
violation of such provision even if such violation be continued and/or repeated.
No express waiver shall affect any provision other than the one specified.
(d) Attorneys' fees. In any litigation between the parties regarding this
Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs including attorneys' fees incurred by the prevailing
party. A party shall be considered the prevailing party if it substantially
obtains the relief it sought, either through a judgment or the losing party's
voluntary action before judgment.
(e) Governing Law. This Agreement and all questions arising hereunder shall
be construed and governed by the laws of the State where the demised premises
are located. If any provision of this Agreement is invalid or unenforceable for
any reason, all other provisions shall be and remain in effect.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Landlord, its successors and assigns, and shall inure to
the benefit of and be binding upon Tenant, its successors and assigns.
(g) Limitation of Landlord's Liability. There shall be no personal
liability of the Landlord or any partner, stockholder, officer, director or
other principal of Landlord in connection with this Lease. Tenant agrees to look
solely to the interest of Landlord in the Property for the collection of any
judgment or other judicial process requiring the payment of money by Landlord in
the event of any default or breach by Landlord with respect to this Lease or in
any way relating to the Premises. No other assets of Landlord or any principal
of Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies.
(h) Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
(i) Loading Docks. Landlord and Tenant acknowledge and agree that (A) the
loading docks nearest the warehouse area shall be available throughout the term
of this Lease for Tenant's non-exclusive use, and (B) the remaining loading
docks shall be for the exclusive use of The West Company; Landlord and Tenant
agree to cooperate to modify the foregoing use, and to share the loading docks,
nearest the warehouse area, during the term of this Lease. At selected times,
the overhead door area will need to be accessed by other Tenants and such
cooperation is required.
(j) Signage. Tenant shall have the right to erect, and the responsibility
to maintain, such signage and commercial display as Landlord shall in its
discretion determine in locations on the Premises and on the Land selected by
Landlord subject to Landlord's approval. Tenant may install a marquis on the
Land, at the Tenant's sole expense provided the marquis does not demean or
interfere with visibility of other Tenant signage, and written approval for the
design and location of the marquis has been obtained from the Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
agreement as of the date set forth above.
WHITE DEER WAREHOUSING & DISTRIBUTION
CENTER, INC., a Pennsylvania corporation
By: -----------------------------------------
Name:
Title:
By: ------------------------------------------
Name:
Title:
EXHIBIT "A"
FLOOR PLAN OF PREMISES (SHADED IN BLUE)
AND TENANT ACCESS AREAS (SHADED IN YELLOW)
EXHIBIT "C"
SUBLEASE AGREEMENTS
NONE
EXHIBIT "D"
COMPONENT ROOF AREAS
EXHIBIT "D"
COMPONENT ROOF AREAS
[Phone Omitted - Blueprint]
[Description]
All report to mustering station "A" located at flagpole at plant front entrance
area. PLANT LAYOUT EMERGENCY EVACUATION ROUTE
1. "A" Building Mfg. Area-32,000 - 1981
2. Plant Office Area-2,600 - 1985
2a. #2 Mechanical Room-1,800 - 1985
3. #1, 3, 4 Mechanical Rooms-3,400 - 1986
4. "C" Bldg. Mfg. area-36,850 - 1987
5. Warehouse Sections #1-18,700 - 1989
5a. Front office area-7,600 - 1989
6. Warehouse Section #3-18,700 - 1991
0. "X" Xxxx. Xxx. xxxx-00,000 - 0000
0x. Caferteria & Pump House-4,300 - 1993
8. Warehouse Sections #2 & #4-37,400 - 1996
EXHIBIT "E"
LANDLORD REPLACEMENT RESPONSIBILITIES
1. Paved parking areas.
2. Roofs of the Building.
3. Sewer systems serving the Building
4. Water supply systems serving the Building.
EXHIBIT "F"
ADDITIONAL BUILDING CONSTRUCTION
EXHIBIT "F"
[Photo Omitted - Blueprint]
[Description]
PLANT LAYOUT EMERGENCY EVACUATION ROUTES
ALL REPORT TO MUSTERING STATION LOCATED AT A
AT FLAGPOLE AT FRONT ENTRANCE AREA
RED: Evacuation Center
GREEN Extreme Weather Area
LEASE AGREEMENT
This Lease is made as of June 1, 1998, between WHITE DEER WAREHOUSING &
DISTRIBUTION CENTER, INC., c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx,
Xxxxxxxxxxxxx, XX 00000 ("Landlord" and CONSPEC SYSTEMS, INC. XX #0, XXXXX, XX
00000.
For One Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby. Landlord and Tenant agree as follows:
1. PREMISES
Landlord leases to Tenant 4,684 rentable square feet known as Warehouse
Lease Area I and 4,684 rentable square feet in Warehouse Lease Area II; 375
square feet: in the North Office Complex area shown (shaded in blue) on the
space plan attached hereon and made a part hereof as Exhibit "A" (the
"Premises"). The Premises contains the warehouse area, office space and
improvements and other property now installed.
Tenant and its agents, employees and invitees shall have the non-exclusive
right to the free use of certain common areas ("Common Areas") in the Building
and on the land ("Land") on which the Building is located. The Common Areas are
the restroom facilities and the lunchroom area and connecting corridors from the
North Office Complex to Warehouse, Shipping/Receiving Areas.
2. TERM.
The initial term ("Initial Term") of this Lease begins on the date (the
"Commencement Date") which is June 5, 1998, and shall end on May 31, 1999. Two
additional renewal terms are anticipated by the Tenant and Landlord.
Any subsequent extensions agreed upon by Landlord and Tenant, for a
"Renewal Term of twelve (12) months after the expiration of the Initial Term,
such agreement to be executed by Tenant, if at all, by giving written notice not
less than ninety (90) days prior to the expiration of the Initial Term or the
then-current Renewal Term and accepted by Landlord in writing within twenty days
after receipt of the aforementioned notice. The Initial Term and any Renewal
Term are sometimes referred to together in this Lease as the "Term" hereof.
The Renewal Terms shall be governed and subject to all of the terms and
conditions of the original lease, including rent.
Renewal term of lease shall include all or a portion of the Initial Term
leased space designated as Areas I, II and III as determined by Tenant and
accepted by Landlord.
