Exhibit 10.14
Execution Copy
LEASE AGREEMENT
1. Parties . This Lease,
dated as of January 1, 2005 is made by and between CROWN Cork &
Seal USA, Inc., a Delaware corporation (“ Lessor
”), and Constar, Inc., a Pennsylvania corporation (herein
called “ Lessee ”).
2. Premises . Lessor hereby
leases to Lessee and Lessee leases from Lessor for the term, at the
rental, and upon all of the conditions set forth herein, at that
certain real property known as One Crown Way, Philadelphia,
Pennsylvania (the “ Land ”), office space as
shown on Exhibit A attached hereto and made a part hereof
(the “ Premises ”), located in the building
located thereon (the “ Building ”). Lessee
hereby acknowledges that Lessor is contemplating a sale of the
Building and agrees to cooperate with Lessor’s efforts,
including through allowing potential purchasers reasonable access
to the Premises. Lessor will keep Lessee informed of the status of
Lessor’s sale plans.
3. Term .
3.1. The term of this Lease shall
commence on the date hereof and end on December 31, 2005 (the
“ Termination Date ”), unless sooner terminated
pursuant to any provision hereof.
3.2. So long as no default or breach
under Section 12.1 shall have occurred, Lessee may extend
the Termination Date by mutual agreement of the parties by
requesting such extension in writing received by Landlord no later
than ninety (90) days prior to the Termination Date. Other than as
modified by the mutual agreement of the parties, all other terms of
this Lease shall remain in full force and effect.
3.3. In order to permit the orderly
withdrawal from and turn over of the Premises by Lessor and Lessee,
and effect an orderly transition between Lessor to Lessee, Lessor
has the right during the course of such turn over and withdrawal to
continue to conduct its operations and deployment of personnel at
the Premises. The parties hereby acknowledge that the transition
may (and is permitted to) entail Lessor maintaining personnel at
the Premises throughout the term of this Lease.
3.4. Lessee may terminate this Lease
effective at any time prior to the Termination Date provided that
Lessee provides Lessor with written notice of such termination at
least one hundred and forty (140) days prior to such
termination.
3.5. Lessor may terminate this Lease
effective at any time prior to the Termination Date provided that
Lessor provides Lessee with written notice of such termination at
least one hundred and forty (140) days prior to such
termination.
3.6. In the event that Lessor shall
sell the Building to a third-party, Lessor may, at Lessor’s
option, terminate this Lease effective upon the time that Lessor
vacates the Building after consummation of such sale;
provided , however , that Lessor shall have kept
Lessee informed of Lessor’s intentions to sell the Building
and/or vacate the Building so as to provide Lessee with as much
notice as reasonably possible of the potential exercise of
Lessor’s termination right under this Section 3.6.
4. Rent . Lessee shall pay to
Lessor, in advance, by the 1st day of each month (and by the date
hereof for January, 2005), an amount equal to the Monthly Base Rent
(the “ Rent ”) plus any other amounts then due
under this Lease. If the first or last month of the Lease is less
than a full month, Rent shall be a pro rata portion of the monthly
Rent. Rent shall be payable in lawful money of the United States to
Lessor at the address stated herein or to such other persons or at
such other places as Lessor may designate in writing.
4.1. Monthly Base Rent . The
“ Monthly Base Rent ” is Thirty-Two Thousand,
One Hundred Eighty Seven and 50/100 U.S. Dollars ($32,187.50). The
Monthly Base Rent includes costs for utilities, janitorial
services, guard services, trash removal, cleaning services,
cafeteria use, parking lot use, coffee service, common areas,
wellness center, restaurant overhead (but not food charges) and
local real estate taxes.
5. Use .
5.1. Use . The Premises shall
be used and occupied only for general office use and for no other
purpose. Lessee agrees to restrict itself, its employees,
contractors, agents and invitees to occupancy solely of the
Premises.
5.2. Compliance with Law .
Lessee shall, at Lessee’s expense, comply promptly with all
applicable statutes, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the term
or any part of the term hereof regulating the use by Lessee of the
Premises. Lessee shall not use or permit the use of the Premises in
any manner that will tend to create waste or a nuisance or, if
there shall be more than one tenant in the building containing the
Premises, shall tend to disturb such other tenants.
5.3. Condition of Premises .
Lessor makes no warranty or representation as to the Premises.
Lessee acknowledges and agrees that it has occupied and
familiarized itself with the Premises and has had adequate
opportunity to investigate and inspect the condition of the
Premises, and enters into this Lease upon the basis of its own
review, and is leasing the Premises in their “AS IS, WHERE
IS” CONDITION WITH ALL FAULTS, WHETHER PREVIOUSLY EXISTING OR
ARISING FROM OR PERTAINING TO ANY CONSTRUCTION, RENOVATION,
RELOCATION OR IMPROVEMENT OF ANY PORTION OF THE PREMISES PERFORMED
BY LESSOR OR OTHERS, INCLUDING BUT NOT LIMITED TO BOTH LATENT AND
PATENT DEFECTS. EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN
THIS LEASE, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY LESSOR
OR ANY OF ITS AFFILIATES CONCERNING SUCH ITEMS,
- 2 -
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LESSEE HEREBY
WAIVES AND DISCLAIMS ANY WARRANTIES THAT MAY ARISE BY OPERATION OF
LAW.
Lessee further acknowledges and
agrees that it has had an opportunity to review and to discuss with
various agents and/or representatives of Lessor the environmental
condition of the Premises. Lessee has investigated and has
knowledge of operative or proposed governmental laws and
regulations including, without limitation, environmental laws and
regulations to which the Premises are or may be subject and enters
into this Lease upon the basis of its review and determination of
the applicability and effect of such laws and regulations. Lessee
acknowledges that Lessor expressly disclaims any representations or
warranties of any kind or nature, express or implied, as to the
condition (financial or otherwise), value or quality of the
products, assets or properties of the Premises.
Lessee hereby accepts the Premises
in their condition existing as of the date hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Premises, and
accepts this Lease subject thereto and to all matters disclosed
thereby and by any exhibits attached hereto.
Lessee hereby agrees that all
furniture, equipment, machinery and all other personal property,
excepting any computers, that are located on or in the Premises as
of the date hereof shall remain on the Premises as and when Lessee
evacuates the Premises on the Termination Date or any extension
thereof.
5.4. Hazardous Substances
.
(a) Lessee shall not use nor allow
the Premises to be used for the Release (as defined below),
generation, transportation, storage, use, treatment, disposal or
other handling (“ Management ”) of any Hazardous
Substance, except (i) in the ordinary course of operations, (ii) in
full compliance with applicable federal, state and local
environmental statutes, ordinances, rules, regulations, codes,
orders, ordinances, Environmental Permits (as defined below),
notice and consent or settlement agreements in effect at any time
during the term of this Lease (“ Environmental Laws
”), and (iii) with the prior written consent of Lessor.
Lessee shall not implement any modifications of current operations
or activities or implement any new operations or activities at the
Premises that materially change the type or quantity of, or manner
in which Hazardous Substances are Managed or Released at the
Premises without Lessor’s prior written consent.
(b) Lessee shall comply with and
will cause its agents, representatives, invitees, employees,
subtenants of Lessee or any other occupant to comply with all
Environmental Laws applicable to the Premises, or the Release or
Management of Hazardous Substances at, on, about or from the
Premises or the Lessee’s use, operations or activities at the
Premises.
- 3 -
(c) Lessee shall obtain in its own
name any and all environmental permits, certificates, licenses,
approvals, registrations and authorizations (“
Environmental Permits ”) required by Environmental
Laws for the Premises and the conduct of its operations or
activities at the Premises, maintain all such Environmental Permits
in full force and effect, timely file all renewal applications and
remain in compliance with all such Environmental
Permits.
(d) To the extent required by and
within the time period required by Environmental Laws, Lessee shall
report any release, spill, leak, discharge, disposal, pumping,
pouring, emission, emptying, injecting, leaching, dumping escaping
or threat thereof (“ Release ”) of any
hazardous, toxic or polluting substance, waste or material,
pollutant or contaminant including, without limitation, petroleum
or petroleum products, asbestos, PCBs or radioactive materials
(“ Hazardous Substance ”) at, on, from or
affecting the Premises first arising after the date hereof during
the term of the Lease (or arising, directly or indirectly, from
Lessee’s or its affiliates’ use of the Premises prior
to the date hereof) to the appropriate governmental authorities and
immediately provide notice of such Release to Lessor including a
description of measures taken or proposed to be taken by Lessee to
respond to such Release. To the extent that investigation, remedial
action or other response action (“ Response Action
”) is required by Environmental Law for such a Release,
Lessee shall promptly undertake such action to the extent required
by applicable Environmental Laws and to the extent necessary so as
not to materially effect the condition, use, value, operations or
possession of the premises and shall indemnify, defend and hold
Lessor harmless with respect thereto and for any damage to
property, person, and/or the environment.
(e) Lessee will promptly notify
Lessor of any known Release of Hazardous Substances at, on, from or
affecting the Premises, including any Release caused by Lessee, its
employees, agents, representatives, invitees, employees,
subtenants, other occupants or trespassers (which Release is not
made pursuant to and in conformance with the terms of an
Environmental Permit) regardless of whether such Release first
occurred prior to or after the date hereof and of any non-routine
governmental filings made or notices received from any governmental
authority or private party during the Lease Term and relating to
environmental matters or conditions at or in the vicinity of the
Premises.
(f) If Lessor reasonably believes
Lessee is in breach of any of the covenants in Section 5.4
of this Lease, Lessor may upon notice to Lessee request an
independent engineer or other qualified consultant or expert
acceptable to Lessor, to conduct, at Lessee’s expense, an
environmental assessment of the Premises and immediate surrounding
areas, and the scope of work to be performed by such engineer,
consultant, or expert shall be approved in advance by Lessor, and
all of the engineer’s, consultant’s, or expert’s
work product shall be made available to Lessor. Notwithstanding
Lessee’s obligations under this Section 5.4(f) ,
Lessor, in its sole discretion, may conduct environmental
assessments of the Premises at any time.
- 4 -
(g) At Lessor’s request from
time to time, Lessee shall execute affidavits, representations and
the like concerning Lessee’s knowledge and belief regarding
the presence of Hazardous Substances at, on, about or from the
Premises.
(h) Lessee shall reimburse Lessor,
upon demand, the reasonable cost of any testing for the purpose of
ascertaining if there has been any Release of Hazardous Substances
at, on, about or from the Premises, if such testing is required by
any governmental agency, applicable Environmental Laws or
Lessor’s Mortgagee.
(i) Lessee shall, upon expiration of
this Lease, surrender the Premises to Lessor free from the presence
of any Hazardous Substances used by Lessee, its employees, agents,
representatives, invitees, employees, subtenants, other occupants
(other than Lessor, its agents, representatives, invitees or
employees) or trespassers or any existing conditions aggravated by
the acts or omissions of Lessee (and not resulting from the
negligent acts of the Lessor).
(j) Lessee shall be responsible for
all regulatory requirements in connection with any storage tanks,
asbestos or asbestos containing materials, polychlorinated
biphenyls, and Hazardous Substances located at, on or about the
Premises.
(k) Lessor and Lessee shall
reasonably cooperate in connection with any Response Actions to be
conducted at, on or about the Premises, including but not limited
to keeping the other reasonably informed of such Response Actions
and executing any necessary documents or consents required to be
executed in connection thereto. Lessee will notify Lessor, and
provide Lessor the opportunity to attend, all meetings with
applicable authorities in connection with any suggested, threatened
or pending Response Action, and Lessor shall have the right to
approve in advance all proposed Response Actions. Lessor will, when
reasonable under the circumstances, notify Lessee prior to
commencing Response Actions required to be performed by Lessor and
shall minimize, to the extent reasonably possible, interference
with Lessee’s operations or activities at the Premises. To
the extent permitted by the Environmental Laws, Lessee shall allow
Lessor to utilize Lessee’s Environmental Permits to implement
Response Actions at, on or about the Premises.
(l) Indemnification
(i) In addition to any other
indemnifications contained in this Lease, Lessee shall indemnify
and hold harmless Lessor, its partners, associates, and employees
(“ Lessor Indemnitees ”), from and against any
and all liability, damages, costs or expenses (including costs of
Response Actions, fines, penalties, and attorney’s fees)
(“ Costs ”) resulting from any claim, demand,
liability, obligation, right or cause of action including but not
limited to governmental action (collectively, “ Claims
”) that are incurred by or are asserted against Lessor
Indemnitees or the Premises to the extent arising out of or
relating to (x) environmental conditions including, without
limitation, the presence or Release of Hazardous Substances at, on,
about or from the Premises; (y) violations or alleged violations of
Environmental Laws at the
- 5 -
Premises which first arise after the date hereof
other than due to the negligent acts of Lessor, or arise, directly
or indirectly, from Lessee’s or its affiliates’ use of
the Premises prior to the date hereof; or (z) breaches of this
Lease.
(ii) The indemnities of Lessee
contained in this Section 5.4(l) will survive termination of
this Lease.
(iii) For any Claim for which Lessee
is required to indemnify or hold harmless Lessor Indemnitees
pursuant to this Section 5.4 , Lessor may determine, in its
sole discretion, whether Lessee shall perform or pay for Lessor
Indemnitees’ performance.
6. Maintenance, Repairs and
Alterations .
6.1. Lessee’s
Obligations . Except as otherwise expressly set forth herein,
Lessee shall keep in good order, condition and repair the Premises
and every part thereof, structural and non structural, (whether
such portion of the Premises requiring repair, or the means of
repairing the same, are reasonably or readily accessible to Lessee,
and whether the need for such repairs occurs as a result of
Lessee’s use, any prior use, the elements or the age of such
portion of the Premises). If Lessee fails to perform Lessee’s
obligations under this Section 6 , Lessor may at its option
(but shall not be required to) enter upon the Premises, after
thirty (30) days prior written notice to Lessee, and put the same
in good order, condition and repair, and the cost thereof including
an administrative fee to Lessor of 10% of such cost, shall become
due and payable as additional rent to Lessor together with
Lessee’s next Rent installment.
6.2. Surrender . On the last
day of the term hereof, or on any sooner termination, Lessee shall
surrender the Premises to Lessor in substantially the same
condition as when received, broom clean, ordinary wear and tear,
damage by fire or other casualty excepted. Lessee shall repair any
damage to the Premises occasioned by the removal of Lessee’s
trade fixtures, furnishings and equipment pursuant to Section
6.5(d) , which repair shall include the patching and filing of
holes and repair of structural damage. Upon mutual agreement of the
parties, the parties may jointly videotape the Premises at any time
within two (2) days after the date hereof for the purposes of
attempting to document the then-current condition of the
Premises.
6.3. Lessor’s Rights .
Notwithstanding anything stated in Section 6.1 hereof, the
Lessor may from time to time conduct such maintenance and repairs
of the Premises as Lessor deems necessary. Lessor shall submit to
Lessee a statement of the costs and expenses of such maintenance
and repairs, and Lessee agrees to pay to Lessor such costs together
with the next Rent installment.
- 6 -
6.4. Intentionally Omitted
.
6.5. Alterations and
Additions .
(a) Lessee shall not, without
Lessor’s prior written consent, which will not be
unreasonably withheld, make any alterations, improvements,
additions or Utility Installations in, on or about the Premises. As
used in this Section 6.5 the term “ Utility
Installation ” shall mean bus ducting, power panels,
wiring, fluorescent fixtures, space heaters, conduits, air
conditioning equipment and plumbing. Lessor may require that Lessee
remove any or all of such alterations, improvements, additions or
Utility Installations at the expiration of the term and restore the
Premises to their prior condition. Lessee shall provide to Lessor,
at Lessee’s sole cost and expense, a lien and completion bond
in an amount equal to one and one-half times the estimated cost of
any such improvements to insure Lessor against any liability for
mechanic’s and materialmen’s liens and to insure
completion of the work. Should Lessee make any alterations,
improvements, additions or Utility Installations without the prior
written approval of Lessor, Lessor may require that Lessee remove
any or all of the same.
(b) Any alterations, improvements,
additions or Utility Installations in or about the Premises that
Lessee shall desire to make shall be presented to Lessor in written
form, with proposed detailed plans, and shall not be made until
Lender has consented in writing. If Lessor shall give its consent,
the consent shall be deemed conditioned upon Lessee acquiring a
permit for such alteration, improvement, addition or Utility
Installation from appropriate governmental agencies, the furnishing
of a copy thereof to Lessor prior to the commencement of the work
and the compliance by Lessee of all conditions of such permit in a
prompt and expeditious manner.
(c) Lessee shall pay, when due, all
claims for labor or materials furnished or alleged to have been
furnished to or for Lessee at or for use in the Premises, which
claims are or may be secured by any mechanics’ or
materialmen’s lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10)
days’ notice prior to the commencement of any work in the
Premises, and Lessor shall have the right to post notice of
non-responsibility in or on the Premises as provided by law. If
Lessee shall, in good faith, contest the validity of any such lien,
claim or demand then Lessee shall, at its sole expense, defend
itself and Lessor against the same and shall pay and satisfy any
such adverse judgment that may be rendered before the enforcement,
upon the condition that Lessee shall furnish to Lessor a surety
bond satisfactory to Lessor in an amount equal to such contested
lien, claim or demand indemnifying Lessor against liability for the
same and holding the Premises free from the effect of such lien or
claim. In addition, Lessee shall pay Lessor’s attorneys fees
and other costs in participating in such action if Lessor shall
decide it is to its best interest to do so.
(d) Unless Lessor requires their
removal as set forth in Section 6.5(a) , all alterations,
improvements, additions and Utility Installations (whether or not
such Utility Installations constitute trade fixtures of Lessee),
which may be made on the Premises, shall become the property of
Lessor and remain upon and be surrendered with the Premises at the
expiration of the term.
- 7 -
7. Insurance Indemnity
.
7.1. Insuring Party . Lessor
shall purchase and pay for various insurance policies covering the
Land and the Building generally, including property
insurance.
7.2. Liability Insurance .
Lessee shall, at Lessee’s expense, obtain and keep in force
during the term of this Lease a policy of Combined Single Limit,
Bodily Injury and Property Damage Insurance insuring Lessor and
Lessee against any liability arising out of the ownership, use,
occupan
