THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.10
08/12/96
AGREEMENT OF LEASE
THIS AGREEMENT made and effective as of the 19th day of July, 1996, by and
between AQUAPENN SPRING WATER COMPANY, a Pennsylvania corporation, with an
address of P. X. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxx, hereinafter referred to
as "Lessor",
- A N D -
XXXXXXX CONTROLS, INC., a corporation, with an address of 000 Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx, hereinafter referred to as "Lessee" or "Tenant".
WITNESSETH:
1. Premises. The Lessor, for and in consideration of the payment
of the rent and the performance of the covenants and agreements of this
Lease as hereinafter set forth, does hereby demise, lease, and let unto the
Lessee and Lessee leases from Lessor, 30,000 square feet of floor space
located in the Lessor's Milesburg plant as more fully shown on the Plan
attached hereto marked Exhibit "A", which is hereinafter referred to as the
Demised Premises.
2. Term. The Lease term shall commence on December 1, 1996 or two
(2) weeks after Lessor notifies Lessee the building is ready for occupancy
(the "Commencement Date"), and shall continue until March 31, 2001 (the
"Initial Term").
1
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
3. Rent. The rent for the Demised Premises during the Initial
Term of this Lease shall be [ ] on an annual basis equaling a minimum
annual amount of [ ] Dollars payable in equal installments of [ ] Dollars
per month. All rents to be paid pursuant to this Lease shall be paid in
monthly installments, in advance, on or before the fifth (5th) day of each
calendar month. If the Commencement Date is not the first day of a calendar
month, the first and last months' rent shall be prorated on a daily basis.
4. Use. The Demised Premises shall be utilized for Lessee to
establish an on-site blowing operation for the production of Lessor's water
bottle requirements, including the procurement and set up of tooling for
such production, in accordance with the letter of understanding between
Lessor and Lessee attached hereto marked Exhibit "B". It is understood that
Lessee may blow bottles for Lessee's other customers, provided Lessee has
met Lessor's production requirements set forth in Exhibit "B". Lessee shall
at its own cost and expense obtain any and all licenses and permits for any
such use. Lessee shall comply with all valid governmental laws, ordinances
and regulations applicable to such use of the Demised Premises and shall
promptly comply with valid governmental orders and directives for the
correction, prevention and abatement of any nuisances in or upon or
connected with the Demised Premises. Lessee shall not perform any acts or
carry on or permit to exist any practices that may unreasonably injure the
building or its contents or be an unlawful nuisance or menace to the
occupants of adjacent areas or render the insurance on the building in
which the Demised Premises is located void or the insurance risk more
hazardous than the risk for the permitted usage.
2
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
5. Taxes and Assessments. In addition to the rents provided for
herein, Lessee, for the term of this Lease, shall reimburse Lessor for all
real estate taxes and Lessee's percentage share of the cost of any special
assessment or similar charge levied against the Demised Premises by any
taxing authority (an "Imposition"). Any such costs shall be amortized over
their useful lives, as determined by Lessor in accordance with generally
accepted accounting principles and only the annual amortization amount
shall be payable by Lessee in any calendar year. If, by law, any Imposition
is payable, or may at the option of the taxpayer be paid in installments,
Lessee may pay the same, together with any accrued interest on the unpaid
balance of the Imposition, in installments, as the same respectively become
due and payable, before a fine, penalty, interest or cost may be added
thereto for nonpayment thereof. Lessee shall reimburse Lessor for such
payments subject to amortization provisions herein. Further, if any
Imposition relating to a fiscal period of a taxing authority, a part of
which period is included within the term hereof, any part of which is
included in the period of time either prior to the Commencement Date or the
end of the term hereof, then such Imposition shall be adjusted between
Lessor and Lessee as of the Commencement Date or the end of the term
hereof, as the case may be. Lessee shall not be required to pay any taxes
imposed upon the income, receipts or profits of Lessor. Lessee shall have
the right to contest the amount or validity of any Imposition by
appropriate legal proceedings; provided, however, that this right shall not
relieve, modify or extend the
3
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Lessee's obligation to pay such Imposition at the time and in the manner
provided in the preceding paragraph.
6. Alterations. Lessee shall have the right to make alterations,
additions or improvements to the Demised Premises which do not adversely
affect the structural soundness or integrity of the building and without
being obligated for the payment of any additional rent, provided that
Lessee shall obtain Lessor's prior written approval of such alterations,
additions and improvements which approval shall not be unreasonably
withheld. The cost of all leasehold improvements will be the responsibility
of the Lessee. If requested by Lessee, Lessor agrees to execute any and all
documents necessary to enable Lessee to apply for building permits, zoning
approvals and any other approval required of any municipality or
governmental unit having jurisdiction over the Demised Premises or the
building or improvements to be erected thereon, provided that Lessee pays
all expenses in connection therewith. Upon termination of this Lease, all
alterations, additions or improvements to the Demised Premises which are
not removed by the Lessee pursuant to Section 14 hereof, upon such
termination will become the property of Lessor unless otherwise specified
in writing by Lessee and Lessor.
7. Utilities. Lessee shall be responsible for and shall pay, when
the same is due and payable, all utilities desired by Lessee in the use of
the Demised Premises or in the construction of any improvements on the
Demised Premises and the subsequent utilization thereof including, but not
limited to, gas, water, electricity, heat, telephone, sewage and trash
removal utilized in the Demised Premises.
4
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
8. Insurance. During the term of this Lease, Lessee shall, at its
own cost and expense, maintain comprehensive general public liability
insurance with respect to the Demised Premises and Lessee's use thereof in
at least the following amounts:
a. With respect to personal injuries (including death) [ ] for
any one occurrence.
b. With respect to property damage [ ] in any one occurrence.
With respect to the foregoing policies of insurance, Lessor shall
be designated as an additional insured with respect to liability arising
out of the operations performed by Lessee, but only to the extent of
damages directly caused by the negligence of Lessee. All insurance required
to be provided by Lessee under this Lease shall be issued by insurance
companies authorized to do business in the Commonwealth of Pennsylvania
with a financial rating of at least A- or better as rated in the most
recent edition of Best's Insurance Reports. All policies of insurance
required under this Section 8 shall provide that notice shall be given by
the insurance company to Lessor and Lessee at least ten (10) days prior to
any termination or cancellation of such policy. Lessee shall provide Lessor
with copies of certificates of insurance, or other written evidence of
insurance reasonably satisfactory to Lessor, for the initial insured period
and each renewal period for the entire term of this Lease. In addition,
Lessee shall provide or cause to be provided workers compensation coverage
for all employees of Lessee on the Demised Premises and obtain certificates
of insurance from all agents or subcontractors of Lessee indicating
workers' compensation coverage. During the term of this Lease, the Lessee
shall carry insurance coverage on its personal property and
5
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
improvements located on the Demised Premises, in amounts as shall be
satisfactory to Lessee.
9. Maintenance, Repairs and Replacement. Lessor shall be
responsible and obligated only for replacement of the roof and structural
parts of the buildings on the Demised Premises, including, but not limited
to, foundation, load-bearing and exterior walls. Lessee shall keep the
Demised Premises and fixtures therein in good order and condition and
perform all maintenance, repairs and replacements necessary to maintain the
good condition of the Premises, including, but not limited to, maintenance,
repair and replacement, if needed, of the HVAC system servicing the Demised
Premises. However, Lessee's expenses for repair and replacement shall not
exceed Five Hundred and 00/100 ($500.00) Dollars per year, except if such
repairs and replacements are necessitated by Lessee's negligence, whereupon
such repairs and replacements shall be Lessee's sole responsibility.
10. Assignment. Lessee shall not sublease or assign its rights
and obligations under this Lease or any part of the Demised Premises
without first obtaining Lessor's written consent. Lessor shall have the
right to assign any or all of its interest under this Lease, whether
incident to a sale of the real estate or otherwise; provided that any such
assignment or sale shall bind the assignee or purchaser to the terms of
this Lease.
11. Personal Property. Lessee understands and agrees that all
personal property of every kind or description which may at any time be in
the Demised Premises shall be there at Lessee's sole risk or at the risk of
those claiming under the Lessee and the Lessor shall not be liable for any
damage to said property except as may result from and be caused by the
6
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
gross negligence or wilful misconduct of Lessor, its agents or employees.
It shall be Lessee's responsibility to take whatever measures it deems
necessary and appropriate to secure and protect its personal property
situate in the Demised Property.
12. Condition of Premises. Lessee covenants and agrees to deliver
up and surrender to lessor possession of the Demised Premises upon the
expiration of this Lease or its termination as herein provided in as good
condition and repair as the same shall be at the commencement of said term
or may have been put by the Lessor during the continuance thereof, ordinary
wear and tear and condemnation or casualty excepted. It is agreed by the
parties that acceptance of delivery of the Demised Premises shall be deemed
conclusive evidence that Demised Premises were in good order and conditions
at the commencement of the term of this Lease; provided, however, that
Lessee and Lessor shall before the execution of this Lease, jointly inspect
the Demised Premises to be leased and shall list and, at Lessee's option
and expense, photograph any defects in the Demised Premises which have been
agreed shall not be Lessee's responsibility upon the expiration or sooner
termination of this Lease. Said list of defects, if any, shall be attached
hereto marked Exhibit "C".
13. Inspection. Lessee further agrees to permit the Lessor or
Lessor's agents to inspect or examine the Demised Premises at any
reasonable time during ordinary business hours and upon one (1) business
day's prior notice to Lessee and to permit the Lessor to make such repairs
to the building of which the Demised Premises are a part as the lessor may
determine desirable or necessary to comply with its obligations hereunder.
Lessee further agrees to cooperate with Lessor in making appropriate
arrangements to provide for a means of immediate emergency entrance into
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
the Demised Premises in the event of fire, mechanical or electrical
breakdown or similar events.
14. Removal of Lessee's Property. Lessee shall have the right, at
its sole cost and expense, to erect, install, maintain and operate on the
Demised Premises such equipment as Lessee may require in its sole
discretion and such shall remain the property of Lessee. All such
installations shall be effected in compliance with applicable governmental
laws, ordinances and regulations. At any time during the term of this Lease
and at the time of the expiration or sooner termination hereof, provided
all rents and other charges are paid in full, Lessee shall have the right
to remove, at its expense, any improvements, fixtures, machinery or
equipment upon the expiration or termination of this Lease, if such removal
shall not create substantial structural injury and all damage to the
Demised Premises occasioned by such removal is promptly repaired. Lessor
shall have the right to require the removal of any or all fixtures,
equipment or personal property of Lessee upon the expiration or sooner
termination of this Lease.
15. Lessor's Waiver. Lessor agrees to execute upon request, an
acceptable form of Lessor's waiver subordinating any claim by Lessor
against any equipment or personal or other property of Lessee to the claim
of any secured creditor of Lessee. Lessor hereby waives any right to
proceed in distraint or distress against any equipment or personal or other
property of Lessee for claims arising hereunder, whether under common law
or the provisions of the Landlord and Tenant Act of 1951, as the same may
be amended or replaced (the "Landlord and Tenant Act"), and further waives
the benefit of any statutory or common
8
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
law Lessor's lien against Lessee's equipment or personal or other property,
including, without limitation, any lien that otherwise may arise under the
Landlord and Tenant Act.
16. Signs. Lessee may, at its own risk and in accordance with
local zoning ordinances and any applicable private restrictions on the
Demised Premises, erect such signs concerning the business of Lessee at the
Demised Premises. Lessee agrees to maintain any such signs in a good state
of repair, and save Lessor harmless from any loss, cost or damage resulting
from the erection, maintenance, existence or removal of the same and shall
repair any damage caused by the erection, existence, maintenance or removal
of such signs.
17. Quiet Enjoyment. Lessor covenants and agrees that if the
Lessee shall perform all of the covenants and agreements herein stipulated
to be performed on the Lessee's part, the Lessee shall at all times during
the term of this Lease, have the peaceable and quiet enjoyment and
possession of the Demised Premises without any manner of interference or
hindrance from the Lessor or any persons lawfully claiming through the
Lessor.
18. Default. If the Lessee shall fail to keep and perform any of
the covenants, agreements or conditions of this Lease on its part to be
kept or performed (including the covenant to pay rent in the manner
specified herein); or if the Lessee shall abandon or vacate the Demised
Premises during the term hereof; or if Lessee shall make assignment for the
benefit of creditors; or if the interest of the Lessee in the Demised
Premises shall be sold under execution or other legal process; or if the
Lessee shall be adjudged a bankrupt or the leasehold seized by the trustee
in bankruptcy; or if a receiver shall be appointed for the Lessee by the
Court, then the Lessor may at Lessor's election, any time thereafter, while
9
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
such conditions exist, give thirty (30) days' notice to the Lessee of such
default, and if such default and condition is not corrected or remedied
within said thirty (30) days, then Lessor may, without prejudice to any
remedies which might otherwise be used for arrears of rent or proceedings
for breach of covenants, exercise those remedies set forth in Section 19
hereof.
19. Lessor's Remedies. If and in the event the Lessee shall be in
default of any of its obligations hereunder as more fully defined in
Section 18 hereof, the Lessor shall have the option to do one or all of the
following to the extent that they are not inconsistent:
a. declare such occurrence as a breach of the Lease and thereupon
at its option declare the Lease terminated and retake possession of
the Demised Premises;
b. terminate any right to renew or extend the Lease as may
otherwise have been herein agreed;
c. immediately re-enter and remove all persons and property from
the Demised Premises, storing said property in a public warehouse or
elsewhere at Lessee's expense without liability on the part of Lessor;
d. collect by suit or otherwise the balance of the rent due
during the residue of the term specified herein, or any other sum that
has become due; or enforce by suit or otherwise any covenant or
condition or term of the Lease required to be performed by Lessee;
e. terminate the Lease in which event Lessee agrees to
immediately surrender possession of the Demised Premises and to pay
Lessor all damages Lessor may incur
10
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
by reason of Lessee's default including the cost of recovering
possession of the Demised Premises;
f. should Lessor elect to re-enter as herein provided, or should
it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate the Lease, re-let
the Demised Premises, or any part thereof, for the account of Lessee
either in Lessee's name or otherwise, after using its best efforts to
mitigate its damages, upon terms and conditions and for such period
(whether longer than the balance of the term hereof or not) as Lessor
may deem advisable, with or without any equipment or fixtures that may
be situated thereon or therein, in which event, the rents received on
any such reletting during the balance of the term of the Lease or any
part thereof shall be applied first to the expenses of re-letting and
collecting, including necessary renovation and alteration of the
Demised Premises and a reasonable attorney's fee and any real estate
commission actually paid, and, thereafter, toward payment of all sums
due or to become due to Lessor hereunder, and if a sufficient sum
shall not be thus realized to pay such rent and other charges, Lessee
shall pay to Lessor monthly any deficiency; such monthly deficiencies
shall be paid punctually when due, as herein provided, but allowing
credit for rental that Lessor may have received in excess of the
monthly rental herein stipulated in previous months. No re-entry or
taking possession of the Demised Premises shall terminate the Lease
unless written notice of such intention is given to Lessee.
11
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
20. Damage. If the Demised Premises should be damaged or
destroyed by fire, flood or other casualty, Lessee shall give immediate
written notice thereof to Lessor.
a. Total Destruction. If the Demised Premises should be totally
destroyed by fire, flood or other casualty, or if it should be so
damaged that rebuilding or repairs cannot reasonably be completed
within one hundred twenty (120) days from the date of written
notification by Lessee to Lessor of the occurrence of the damage, this
Lease will terminate and rent will xxxxx for the unexpired portion of
the Lease.
b. Partial Damage. If the Demised Premises should be damaged by
fire, flood or other casualty, but not to such an extent that
rebuilding or repairs cannot reasonably be completed within one
hundred twenty (120) days, Lessor, at Lessor's expense, shall cause
the damage to be repaired to a condition as nearly as practicable to
that existing prior to the damage, with reasonable speed and
diligence. Lessor shall not be obligated to restore or rebuild the
Demised Premises to a condition in excess of that in existence on the
commencement date of the term hereof, nor in any event to repair,
restore or rebuild any of the additions or alterations made by Lessee.
If any Mortgagee of the Demised Premises shall not permit the
application of adequate insurance proceeds for repair or restoration
of the Demised Premises, or if the casualty shall not be a type
insured against under the standard fire policy with extended coverage,
then this Lease, at the option of the Lessor, shall be terminated with
the rent to be adjusted to a mutually acceptable date, and Lessee
shall thereupon promptly vacate the Demised Premises.
12
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
21. Mortgage of Premises. Lessee hereby agrees that this Lease
shall be subordinate and inferior to any valid mortgage lien that may now
or hereafter be placed upon the Demised Premises, and Lessee shall execute
such instrument as may be reasonably necessary to evidence such
subordination and that this Lease is in full force and effect, provided
that such subordination shall be on the express condition that this Lease
shall be recognized by the mortgagee, any purchaser at the foreclosure sale
(or by deed in lieu thereof) and the rights of Lessee shall remain in full
force and effect during the term of this Lease and shall not be disturbed
or extinguished by any such foreclosure purchaser or mortgagee as long as
Lessee shall continue to perform all the covenants and conditions of this
Lease to be performed by Lessee. This paragraph shall be self-operative and
no further instrument or subordination shall be required by any mortgagee.
22. Lessor's Title. Lessor represents and warrants that, as of
the Commence Date, it has good legal title to the premises subject to only
such reservations, restrictions, liens, encumbrances, easements and/or
outstanding interests, if any, as will not restrict or interfere with
Lessee's proposed use of the Demised Premises and that Lessor is not to
obtain the consent of any third party in order to enter into and execute
and deliver this Lease.
23. Hazardous or Toxic Substances. Lessor represents and warrants
that any handling, transportation, storage, treatment or usage of hazardous
or toxic substances that has occurred or will occur on the Demised Premises
has been and will continue to be in compliance with all applicable federal,
state and local laws, regulations and ordinances. Lessor further represents
and warrants that no leak, spill, release, threatened release,
13
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
discharge, emission or disposal of hazardous or toxic substances exists or
has occurred on the Demised Premises to date and that the soil, groundwater
and soil vapor on or under the Demised Premises is free of toxic or
hazardous substances and free of underground storage tanks as of the date
that the term of this Lease commences.
Lessee shall not (either with or without negligence) cause or
permit the escape, disposal or release of any hazardous or toxic substances
in, on or under the Demised Premises, except in compliance with all
applicable federal, state and local laws, regulations and ordinances.
Lessee covenants and agrees that the Demised Premises, at all times during
its use or occupancy thereof, be kept and maintained so as to comply with
all now existing or hereafter enacted or issued statutes, laws, rules,
ordinances, orders, permits and regulations of all state, federal, local or
other governmental and regulatory authorities, agencies and bodies
applicable to the Demised Premises, pertaining to the use, storage and
disposal of all hazardous or toxic substances. Lessee shall immediately
notify Lessor in writing of any spill or discharge of hazardous or toxic
substances or of the receipt by Lessee of any notice, citation or other
communication from any agency concerning any investigation or alleged
violation of any environmental laws or regulations on the Demised Premises.
24. Indemnification Related to Toxic or Hazardous Substances.
Lessor and Lessee mutually agree to indemnify, defend and hold harmless the
other, including its officers, employees and agents from any claims,
judgments, damages, penalties, fines, costs, liabilities (including sums
paid in settlement of claims) or loss including attorneys' fees, consultant
fees and expert fees (consultants and experts to be selected by Lessor)
which arise during or after
14
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
the term of this Lease from or in connection with the presence or suspected
presence of toxic or hazardous substances in the soil, groundwater or soil
vapor on or under the Demised Premises, to the extent the toxic or
hazardous substances are present as a result of the actions of the
indemnifying party, its officers, employees or agents. Without limiting the
generality of the foregoing, the indemnification provided by this Section
24 shall specifically cover costs incurred in connection with any
investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental
agency or political subdivision because of the presence in the soil,
groundwater or soil vapor on or under the Demised Premises, to the extent
the toxic or hazardous substances are present as a result of the actions of
the indemnifying party, its officers, employees or agents. Without limiting
the generality of any of the foregoing, the indemnification provided by
this Section 24 shall also specifically cover costs incurred in connection
with:
a. toxic or hazardous substances present or suspected to be
present in the soil, groundwater or soil vapor on or under the Demised
Premises during the term of this Lease; or
b. toxic or hazardous substances that migrate, flow, percolate,
diffuse or in any way move onto or under the Demised Premises after
the term of this Lease commenced; or
c. toxic or hazardous substances present on or under the Demised
Premises as a result of any discharge, dumping, spilling (accidental
or otherwise) onto the
15
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Demised Premises during the term of this Lease by any person,
corporation, partnership or entity other than Lessor.
The foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
25. Rental for Renewal Term. Landlord hereby gives Tenant two (2)
option(s) to extend its Lease for an additional period of five (5) years
each, provided Tenant gives Landlord six (6) months' written notice of its
intention to extend before the expiration of the present or succeeding
lease term. Such extension of the lease shall be upon all of the terms and
conditions herein contained, except that the rental for the extended term
shall be based on the then prevailing rental rate for this property.
26. Choice of Law. The validity, interpretation and performance
of this Lease and any dispute connected herewith shall be governed and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
27. Notices. All notices herein provided for shall be considered
as having been given if sent by United States post-paid, certified mail,
addressed to the respective parties at their addresses herein set forth, or
such other addresses designated in writing for receipt of notices.
AquaPenn Spring Water Company
P. X. Xxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxxx Controls, Inc.
000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
16
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
28. Entire Agreement. This Lease contains all of the agreements
and understandings of the parties hereto concerning the Lease of the
Demised Premises.
29. Time of the Essence. Time shall be of the essence with
respect to the performance of the obligations set forth in this Lease.
30. Amendment. This Lease shall be altered or amended only by a
written document executed subsequent to the date of the Agreement of each
of the parties.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have hereunto set their hands and respective seals as of the day and
year first above written.
WITNESS/ATTEST: AQUAPENN SPRING WATER COMPANY
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxxxx
----------------------------- -----------------------------------
XXXXXXX CONTROLS, INC.
1/13/97 By: (Illegible Signature)
----------------------------- -----------------------------------
17
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "A"
PLAN OF DEMISED PREMISES
[Exhibit A is a diagram setting forth the
floor space to be occupied by the Lessee.]
18
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "B"
FEBRUARY 13, 1996 LETTER FROM
XXXXXXX CONTROLS, INC.
19
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Xxxxxxx Controls, Inc.
Plastic Container Division
000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel. 313/000 0000
[Letterhead of Xxxxxxx Controls]
February 13, 1996
Xx. Xxxxxx X. Xxxxx, III
AquaPenn Spring Water Company
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Dear Ed:
This letter sets forth the basic terms of agreement between
AquaPenn and Xxxxxxx Controls, Inc. Details of the on-site operation and
responsibilities of the parties will be agreed within the body of a
separate agreement once the facilitization details have been finalized.
(See On-Site Attachment)
o TERM
The agreement is for 100% of AquaPenn's bottle requirements at
State College, Pennsylvania for five years, effective April 1,
1996 through March 31, 2001. For the first two years of the
agreement, Xxxxxxx Controls will be the exclusive supplier to
AquaPenn and AquaPenn will not consider competitive offers. The
100% bottle requirements are based on the sizes listed below.
o PRICING
Base bare bottle, per 1000, delivered
12-ounce 24 grams [ ]
0.5-liter 24 grams [ ]
20-ounce 27 grams [ ]
1-liter 37 grams [ ]
1.5-liter 42 grams [ ]
20
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
o PAYMENT TERMS
Net 30 days
o RESIN
30-day notice for the purpose of establishing adjustments to base
bare bottle pricing, either increases or decreases, due to a
change in the price of resin. The resin escalator/de-escalator
used will be:
2.2 x gram weight of the bottle x cents per pound change in resin
pricing.
o VOLUME - YEAR 1
12-ounce [ ]
0.5-liter [ ]
20-ounce [ ]
1-liter [ ]
1.5-liter [ ]
o MANUFACTURING
Xxxxxxx Controls will manufacture bottles on-site and off-line in
space supplied by AquaPenn. Bottles will be palletized for
delivery to the filling line. Details will be finalized when
on-site proposal is finalized.
o CONTAINERS
Xxxxxxx Controls will develop 1-liter and 1.5-liter bottle
designs for the State College, Pennsylvania facility to match
AquaPenn's 20-ounce bottle design. Blowmolds for these containers
will be paid for by Xxxxxxx Controls providing standard existing
preforms can be utilized. Timing will be discussed.
21
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
o LIGHTWEIGHTING
Efforts will be made to reduce the gram weight of the containers.
The resulting cost savings will be distributed as follows:
If AquaPenn chooses to pay for [ ]
will be passed through to AquaPenn,
OR
Resin savings will be shared [ ]
after Xxxxxxx Controls recoups the cost of the tooling.
o [ ].
o PARTNERSHIP TEAMS
A formalized process will be developed to establish partnership
teams at both the executive level and the plant level of our
respective companies. These teams will meet regularly to identify
mutual areas where attention should be focused. They will
discuss, among other things, improving communication, quality,
operation enhancements, and system-wide cost reductions. [ ].
o QUALITY AND SERVICE
Xxxxxxx Controls agrees that it will provide PET containers to
AquaPenn that will be merchantable and fit for the purpose for
which they are intended and will be free from defects in
materials and workmanship.
o FORCE MAJEURE
Neither party shall be liable for failure or delay in performance
under this agreement due in whole or part to causes such as an
act of God, strike, lockout or other labor dispute, civil
commotion, sabotage, fire, flood, explosion, acts of government,
unforeseen shortages or unavailability of
22
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
fuel, power, transportation, raw materials or supplies, inability
to obtain or delay in obtaining necessary equipment or
governmental approval, permits, licenses or allocations, and an
other causes which are not within the reasonable control of the
party affected, whether or not of the kind specifically
enumerated above. Either party affected by such circumstances
shall give written notice thereof to the other part. During any
such period, Xxxxxxx Controls shall allocate its available supply
among its customers in the same proportion as existed before the
occurrence of any such circumstances. Performance of this
agreement shall be resumes as quickly as reasonably possible
after the party affected by any such circumstances has notified
the other party that the condition(s) is/are remedied.
Please indicate your agreement to the above terms and conditions by signing
in the space provided below and return an originally signed copy.
Sincerely,
XXXXXXX CONTROLS, INC.
/s/ Xxxxx X. Xxxx
----------------------
Xxxxx X. Xxxx
Vice President, Sales
AQUAPENN SPRING WATER CO. XXXXXXX CONTROLS, INC.
BY:/s/ Xxxxxx X. Xxxxx, III BY:/s/ Xxxxx X. Xxxx
------------------------ -----------------------------
NAME: Xxxxxx X. Xxxxx, III NAME: Xxxxx X. Xxxx
-------------------- -----------------------------
TITLE: President TITLE: Vice President
-------------------- -----------------------------
DATE: 2/14/96 DATE: 2/14/96
-------------------- -----------------------------
cc: X. Xxxx
X. Xxxxxxx
23
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ON-SITE CONCEPT
It is expected that JCI will establish an on-site blowing operation at the
AquaPenn facility in State College. AquaPenn will construct a physical
location to house the blowing operation. When JCI is prepared to establish
the operation, it will notify AquaPenn, and AquaPenn will then commence
construction and facilitization.
The parties will develop a time-line for completion of construction,
facilitization and equipment installation, and start-up with a target of
commencement of initial production within 6 months after construction
begins.
The parties will also agree upon payment and other terms for AquaPenn's
lease to JCI, supply of utilities, management systems to be provided by
AquaPenn at a cost to JCI, if needed by JCI, responsibilities for employees
and other matters relating to an on-site blowing operation. This agreement
shall be reached by the parties no later than the commencement of
construction.
JCI agrees to add capacity at State College, Pennsylvania if requirements
at said location exceed rated capacity.
24
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "C"
LIST OF DEFECTS
[NONE OR TO BE PROVIDED]
25
