Exhibit 10.8
AGREEMENT FOR WAREHOUSE SPACE
THIS AGREEMENT made this 18 day of AUGUST, 1994.
BETWEEN
SPECTRA DEVELOPMENT COMPANY, (hereinafter called the "Lessor")
OF THE FIRST PART,
NOMOS CORPORATION (hereinafter called the "Lessee")
OF THE SECOND PART,
In the consideration of the rents, covenants and agreements hereinafter
contained the Lessor and Lessee hereby agree as follows:
1. THE PREMISES:
------------
The Lessor does demise and lease to the Lessee the premises (the "Premises")
which is 2,137 SQUARE FEET OF WAREHOUSE SPACE situated on the first level of the
Spectra Office Building II having the address of Spectra Development Company.
0000 Xxxxxxx-Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
2. TERM:
----
TO HAVE AND TO HOLD the Premises for and during the term of One Hundred Twenty
(120) months (the "Term") to be computed from the date that coincides with
Section 2.01 (d) of the Lease for office space in the Spectra Office Building
II, and to be fully complete and ended One Hundred Twenty (120) months from that
Commencement Date. unless otherwise terminated.
3. RENT:
----
The Lessee shall without deduction or right of offset pay to the Lessor ONE
HUNDRED FORTY-NINE THOUSAND FIVE HUNDRED NINETY ($149,590) Dollars payable on or
before the first day of each month, in advance, in monthly installments of ONE
THOUSAND TWO HUNDRED FORTY-SIX AND 58/100 ($1,246.58) Dollars per month until
the whole amount of the said rent is paid. The first installment of ONE THOUSAND
TWO HUNDRED FORTY-SIX AND 58/100 ($1,246.58) shall be due on the signing of this
Lease, receipt of which is hereby acknowledged. In addition, the Lessee agrees
to pay the Lessor any other sum or sums herein reserved as additional rentals.
The rental recited herein shall be increased at the rate equal to the lesser of
(i) the highest rate permitted by law; or, (ii) two (2%) percent per annum above
the prime rate each month the rent is overdue by more than thirty days.
4. TAXES:
-----
The Lessee shall pay its proportionate share of the increase in real property
taxes based upon the amount of space the Lessee occupies of the Premises. The
portion of the Premises the Lessee occupies computes to 7.36% of the entire
Building. The taxes shall be defined as real property taxes assessed against the
Spectra Office Building II Parcel B of the Spectra Plan of Lots. The taxes
assessed in 1995 will become the base year tax, ("Base Year Tax"). Lessee will
pay 7.36% of the increase in the Base Year Tax.
5. SECURITY DEPOSIT:
----------------
The Lessee shall pay to the Lessor on execution of this lease the sum of ONE
THOUSAND TWO HUNDRED FORTY-SIX AND 58/100 ($1,246.58) Dollars as a deposit to
the Lessor to stand as security for the payment by the Lessee of any and all
present and future debts and liabilities of the Lessee to the Lessor for the
performance by the Lessee of all of its obligations arising under or in
connection with this lease, collectively hereinafter referred to as the
"obligations". In the event the Lessor disposes of its interest in this lease,
the Lessor shall credit the deposit to its successor and thereupon shall have no
liability to the Lessee under this lease or to repay the security deposit to the
Lessee. Subject to the foregoing and to the Lessee not being in default under
this lease, the Lessor shall repay the security deposit to the Lessee without
interest at the end of the term or any renewal thereof provided that all the
obligations of the Lessee to the Lessor are paid and performed in full, failing
which the Lessor may upon notice to the Lessee elect to retain the security
deposit and to apply it to reduce the obligations and the Lessee shall remain
fully liable to the Lessor for payment and performance of the remaining
obligations. Lessor may retain security deposit to cover the expense of any
damages to the premise by the Lessee, excluding normal wear and tear.
6. LESSEE'S RESPONSIBILITIES:
-------------------------
The Lessee covenants as a further consideration for the leasing of the premises
as follows:
USE
---
a. To use the Premises for research and development, light assembly,
machine shop, storage of equipment, materials, supplies, maintenance and
repair of equipment.
b. Not to use, occupy or permit the Premises or any part thereof to be used
in a manner or occupied for a purpose contrary to laws, rules or
regulations of public authorities, or in such a manner determined to be a
fire hazard.
c. To pay for all utility services, and water and sewer charges, rendered
or furnished to the Premises during the term. Lessor shall not be liable
for the quantity, quality or continuity of such utilities. Lessee shall
also be responsible for the cost of all janitorial services within the
Premises.
-2-
d. That all personal property of Lessee which may, at any time, be in, on
or about the Premises shall be at Lessee's sole risk, or property of any
persons claiming under or through Lessee and Lessor shall not be liable for
any damage to the property or loss sustained by any person or persons.
e. At all times save Lessor harmless and indemnify, if necessary, including
but not limited to, attorney's fees and costs from any loss, cost, injury,
damage or death which may occur or be claimed by or with respect to any
person or persons, property or chattels, on or about the Premises, or to
the property itself, resulting from any act done or omission by or through
Lessee or caused by or resulting from Lessee's use or non use, or
possession of, or conduct of Lessee's business on the Premises.
f. The Lessee shall obtain and keep in force during the term of this lease
a policy of comprehensive occurrence type public liability insurance
insuring Lessor and Lessee against liability arising out of use, occupancy
or maintenance of the Premises. Such insurance shall be in an amount of not
less than $1,000,000.00 combined single limit. Lessee shall also maintain
fire and extended coverage insurance on the Premises in the amount of the
full replacement value thereof and shall name Lessor as an additional
insured on the policy. All insurance shall be written by a good and solvent
insurance company with a minimum financial rating of "A" by A. M. Best
Company. Such insurance shall be on a broad form "all risk" or "all perils"
basis. Acceptance by Lessor of Lessee's policy of insurance shall be in
compliance with this paragraph.
g. To use, maintain and occupy the premises in a careful, safe, lawful and
proper manner, and not to commit waste thereon, and to return the premises
to Lessor upon the termination of the term, in as good condition as
received, ordinary wear and tear excepted. Lessee will keep the Premises
and appurtenances in a clean, safe and healthy condition. Lessee will not
permit the premises to be used in any way which will be a nuisance to the
neighborhood.
h. Lessee hereby accepts the premises in its present condition, latent
defects excepted, together with those improvements to the Premises as
described on Exhibit "A" which is made a part hereof and incorporated
herein.
i. To permit Lessor or Lessor's authorized representatives to enter the
premises during normal business hours for inspection thereof and to
specifically enter the premises during the last six (6) months of the term,
or any renewal, for the purpose of showing the same to prospective tenants.
Lessor of Lessor's agents shall have the right to erect "For Rent" and/or
"For Sale" signs in conspicuous locations on the premises six (6) months
prior to the expiration of this lease or any renewal thereof, provided the
signs does not obscure Lessee's signs.
7. The Lessee may, at its own risk, and in accordance with municipal, state
and Federal codes controlling same, erect a sign concerning its business on the
exterior of the Premises. Lessee agrees to maintain said sign in a good state of
repair, and shall save the Lessor harmless from any loss, costs or damage as a
result of the erection, maintenance, existence or removal of same. At the
expiration of the term or any renewal thereof, Lessee shall remove said signs
and repair any damage caused by the erection or removal of same.
8. Lessee, may upon the termination of the lease or any renewal thereof,
remove any and all trade fixtures owned by Lessee which are not attached to the
Premises or which may be removed without injury to or defacement of the
Premises, provided, however, that all rents have been fully paid and all
covenants herein
-3-
stipulated fully performed, and further, all damages, if any, to said Premises
incident to such removal are promptly repaired.
9. FIRE CLAUSE:
-----------
If, during the term of this lease, or any renewal thereof, the Premises are so
injured by fire or other casualty not occasioned through Lessee's negligence
that they are rendered wholly unfit for occupancy and cannot be repaired within
Ninety (90) days, then Lessee shall have the option to terminate this lease.
Otherwise, regardless of damage, the Premises shall be repaired within Ninety
(90) days as long as the Lessee is current under the office lease and Lessee's
tenancy dues not expire within six (6) months from the date of destruction. If
such injury can be repaired within Ninety (90) days the Lessor shall enter and
repair and this lease shall not be affected except that the rent shall be
apportioned or suspended while such repairs are being made. If said Premises be
slightly injured by fire or other such casualty, as not to be rendered unfit for
occupancy, then it is agreed that the Lessor shall enter and repair with
reasonable promptness and, in that case, the rent then accrued or accruing shall
not terminate or cease. In the event that the Premises cannot be repaired within
Ninety (90) days, then this Lease shall terminate.
10. EMINENT DOMAIN:
--------------
Should the premises be taken by condemnation proceeding or by any right of
eminent domain, then this lease shall terminate from the time of the actual
taking of the premises and from that date, all the rights and obligations of the
parties in, to and in connection with the premises and with each other shall
terminate. The premises shall be deemed to have been taken if Lessee is
prevented from using the premises as stated in clause 6 (a) of this lease.
Lessor shall have the right or privilege, either in its own name or in the name
of Lessee or in the name of Lessor and Lessee, to prove and collect any and all
damages by reason of condemnation or taking of the premises, except that Lessee
shall retain all rights to recover moving expenses and losses sustained and
recoverable by virtue of any act of assembly providing for such recovery as of
the date of condemnation.
11. LACHES:
------
No waiver of any covenants or conditions. or breach of any covenants or
condition of this lease shall be taken to constitute a waiver of any subsequent
breach of such covenants or condition nor to justify or authorize the
non-observance of any other occasion of the same or of any other covenant or
condition hereof, nor shall the acceptance of rent by Lessor, at any time when
Lessee is in default under any covenant or condition hereof. be constructed as a
waiver of such default.
-4-
12. OBSERVANCE BY LESSEE:
--------------------
Lessee agrees to perform, fully obey and comply with all ordinances, regulation
and laws of all public authorities, boards and officers relating to the said
premises or the improvements thereon, or to use thereof, and further, not to use
or occupy, or suffer or permit any person or body to use in violation of any
law, statute or ordinance, whether federal, state or municipal. during the term
of this lease or any renewal thereof.
13. DISTRAINT:
---------
Lessee agrees that whenever rent or anything reserved as rent is unpaid and in
default under this lease, Lessor may seize or distrain all property of Lessee on
the premises, and sell the same on due legal notice for all rent and other
payments due as rent, subject, however, to the definition of default as set
forth in paragraph 14.
14. DEFAULT:
-------
It is further agreed by and between Lessor and Lessee that, subject as
hereinafter provided, if the Lessee shall default in payment of any installment
of rent or breach or any other term or conditions of this lease, or should be an
execution be issued or conditions of this lease, or should an execution be
issued against Lessee, bankruptcy proceedings be begun by or against Lessee, or
an assignment by made by Lessee for the benefit of creditors, or a receiver
appointed for Lessee, then and in such case, the entire rent for the balance of
said term shall at once become due and payable in advance. In case of such
assignment, bankruptcy proceedings, appointment of a receiver or of a sale on
legal process of Lessee's goods, subject as hereinafter provided, Lessee shall
have the right to demand and receive rent for the balance of the term which
shall be first paid out of the proceeds of such assignment, bankruptcy or
receiver's proceedings or sale on legal process. any law, usage or custom to the
contrary notwithstanding.
It is hereby understood and agreed that Lessee shall not be considered in
default under this lease or as having breached any term, provision condition
covenant or agreement of or under this lease, except as to the payment of rent,
unless and until Lessor shall have first given Lessee notice in writing by
certified mail of such alleged default, breach of violation and Lessee has
failed to correct or has not commended to correct the same within a period of
ten (10) days from receipt of such notice. All rights and remedies given to
Lessor hereinafter, including but not limited to the right to accelerate the
rent, shall be ineffective and shall not be used or exercised by Lessor unless
Lessee has failed to correct the alleged breach or violation within the
aforesaid ten (10) day period.
Upon an Event of Default in payment of rent and in addition to any and all
remedies provided hereunder or by law, Lessee, upon certification by the Lessor
that the Lessor has not defaulted on any obligations of this lease, hereby
empowers any attorney of any court of record within the United States to appear
for Lessee and, with or without declaration filed, confess judgment against
Lessee and in favor of Lessor, or in favor of any other person to whom Lessee
owes amounts under this Lease, for the specific amount of Rent and any other
additional charges due by reasons of such default or breach, or for such costs
of suit and attorney's commission of the greater of ten percent (10%) of the
amount due or One Thousand Dollars ($1,000.00) for collection and forthwith
issue a writ or writs or execution thereon, with release of all errors, and
without stay of execution, and
-5-
inquisition and extension upon any levy on real estate is hereby expressly
waived, and condemnation agreed to, and exemption of any and all property from
levy and sale by virtue of any exemption law now in force or which may be
hereafter enacted is also expressly waived by Lessee. Lessee further authorizes
and empowers any such attorney, wither in addition to or without such judgment
for the specific amount of Rent or accelerated rents due under this Lease, to
appear for Lessee, and for any other persons claiming under, by or through
Lessee, and confess judgment forthwith against Lessee and such, and other
persons and in favor of Lessor, in an amicable action of ejectment for the
Premises, with all the conditions, fees, releases, waivers and confessions of
judgments in ejectment as are set forth in this Article for confession of
judgment for mounts due. The entry of judgment under the foregoing warrants
shall not exhaust the warrants, but successive judgments may be entered
thereunder from time to time as often as defaults occur.
It is further agreed that a default under a lease of same date for office space
in he Spectra Office Building shall be a default of this lease entitling the
Lessor to all remedies hereunder.
15. ASSIGNMENT OR SUBLETTING:
------------------------
Lessee may not assign this lease and/or sublet the whole or any part or parts of
the premises without obtaining the written permission of the lessor, provided
that Lessee shall remain liable for the performance of all the terms and
conditions of the lease. In the event any assignment or subletting results in
Lessee receiving rent or other related payments in excess of Lessee's financial
obligations hereunder, Lessee agrees to pay to Lessor monthly one-half (1/2) of
the amount by which such payments exceed its financial obligations hereunder.
16. HOLDING OVER:
------------
If Lessee shall remain in possession of all or any part of the premises after
expiration of the term of this lease, then the Lessee shall be deemed as a
Lessee of the premises from month-to-month and subject to all of the terms and
provisions hereof, except only as to the term of this lease.
17. NOTICES:
-------
Any notice or demand required or permitted to be given by the terms and
provisions of this Lease to Lessee to Lessor, shall be in writing. Unless
otherwise required by such law or regulation, such notice or demand shall be
given, by personal service or by registered or certified mail, return receipt
requested, with the U.S. Postal Service addressed to Lessor or Lessee as the
case may be, at the address set forth below. As to Lessee at the Premises with a
copy to :
-6-
NOMOS Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
As to Lessor:
Spectra Development Company
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Either party may, by notice as aforesaid, designate a different address or
addresses for notice or demands to it.
18. TERMINATION:
-----------
Lessee agrees that it will give up quiet and peaceful possession of the Premises
at the end of the term, or any renewal thereof.
19. SUBORDINATION:
-------------
Lessee hereby covenants and agrees upon the written request of Lessor to
subordinate this lease and Lessee's right hereunder to the lien of any mortgage
which in now, or at any time hereafter may be made a lien upon the Premises,
and, upon written demand from Lessor, to execute such further assurance or other
instruments subordinating this lease to the lien of any mortgage except as to
Lessee's right to possession as hereinafter provided as a condition of any
subordination of this lease, and concurrent with and prior to delivery by Lessee
of any such instrument of subordination to Lessor, Lessor shall obtain and
deliver to Lessee, a written agreement from such mortgagee that such mortgagee
will not, in enforcing its mortgage lien, rights, disturb Lessee's possession or
terms and conditions under this lease provided Lessee shall not then be in
default hereunder.
20. APPLICABLE LAW:
--------------
It is understood and agreed that this lease shall be interpreted in accordance
with the laws of the Commonwealth of Pennsylvania and no presumption shall be
deemed to exist in favor of or against either party hereto by virtue of the
negotiation, drafting and execution of this lease.
21. SUCCESSORS AND ASSIGNS:
----------------------
All rights, remedies, liabilities, covenants., conditions and agreements herein
to or imposed upon either of the parties hereto shall inure to and be binding
upon the successors and assigns of Lessor and Lessee insofar as this lease and
the terms created are assignable by the term hereof.
-7-
22. RENEWAL:
-------
The Lessee shall have the right to renew this lease by giving the Lessor notice
within ninety (90) days prior to the expiration of the term of this lease of its
intention to do so, for additional term of one year for five successive one year
terms provided that the Lessee is not in default of any of the terms of this
lease or any of the terms of the lease for the office space in the Spectra
Office Building and provided further that the Lessee renews their lease for the
office space in the office building for the same term or renewal period as this
lease, and provided further that the office lease is not otherwise terminated.
Should the Lessee be in default of any condition in the office lease or this
lease or not renew the office lease in the Spectra Office Building then this
lease shall terminate at the end of the then current term or in the case of
default at the time of default.
The annual rental for all renewal terms shall be negotiated between the parties.
However in no event will the rental be less than the annual rental of the last
year.
23. HEAT:
----
The Lessee aggress to adequately heat the interior of the Premises so as not to
allow freezing of water pipes in their space.
24. ENVIRONMENTAL:
-------------
The Lessee agrees that it shall not dispose of, allow spillage of, or in any
manner allow escape of any substance, liquid, gas or solid, which constitutes an
environmental hazard. An environmental hazard shall be defined as any hazard tot
he environment which is recognized as constituting such by any applicable
federal. Pennsylvania state or municipal law, regulation, rule, order, or
ordinance.
The Lessee agrees that should any discharge caused solely by Lessee's agents or
servants occur, that it shall be solely responsible for any damage, correction,
remedy, or consequential damages that may occur. The Lessee agrees to make any
necessary correction, repair, or take any other remedy necessary to protect and
clean the environment regardless of costs and regardless of whether such
correction or clean up has been ordered by any governmental authority.
Said clean up or correction shall be completed upon thirty (30) days notice to
Lessee from Lessor to do so or within any other time period, whichever is less.
upon notice by any governmental body to do so.
Any discharge shall be abated immediately.
Notwithstanding any provision to the contrary and in addition to any remedy the
lessor may have, should the Lessee permit, allow or in any manner create an
environmental hazard or allow one to exist over which it has sole control, and
after fifteen (15) days notice to Lessee to cure, the Lessor shall have the
right to immediately accelerate any rent remaining due under this lease, and
terminate this lease. No termination of this lease shall affect the lease
between he parties for office space in the Spectra Office Building.
-8-
Notwithstanding any remedy tot he contrary and in addition to any remedy the
Lessor may have the Lessee does hereby agree to indemnify and hold harmless the
Lessor on any claims of others, other than by the parties hereto so long as the
Lessor did not materially contribute to the environmental hazardous condition
caused by or contributed to by Lessee. The indemnification shall include, but
not be limited to, attorney's fees, costs and expenses and any expense incurred
for clean up or abatement. In the event the claim, demand or suit as aforesaid
is made against Lessor and Lessee, and Lessor has materially contributed to such
hazardous condition, Lessee agrees to provide and be responsible for the joint
defense of Lessor and Lessee provided the same counsel is used, including all
costs of such defense, but Lessee shall not be responsible for indemnification
of Lessor.
IN WITNESS WHEREOF, the parties hereto set their hands and seals on the day and
year first above mentioned.
WITNESS: SPECTRA DEVELOPMENT COMPANY
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------- ----------------------------------
ATTEST: NOMOS CORPORATION
By: /s/ [Illegible]
-------------------------------- -----------------------------------
-9-
Exhibit 10.8
EXHIBIT "A"
[FLOOR PLAN]
ACCEPTED BY:
[Illegible] DATE: 8/18/94
