EXHIBIT 10.33
LEASE AGREEMENT
THIS AGREEMENT (hereinafter the "Lease"), dated November 14,
1979, made by and between XXXXXXXXX PLACE, A LIMITED PARTNERSHIP, a limited
partnership organized and existing under the laws of the Commonwealth of
Pennsylvania (hereinafter called "Landlord"), and CHEMICAL XXXXXX CORP., a
Pennsylvania corporation (hereinafter called "Tenant").
1. (a) The Leased Premises. Landlord hereby demises and leases
unto Tenant, and Tenant does lease and take from Landlord, all that certain lot
or piece of ground, with the buildings and improvements thereon erected or to be
erected (hereinafter collectively called "Leased Premises"), situated in the
Xxxxxxxxx Creek Industrial Park complex, in Uwchlan Township, Xxxxxxx County,
Pennsylvania, and more particularly described in Exhibit "A" attached hereto and
made a part hereof, upon the terms, conditions and provisions hereinafter set
forth.
(b) Term. The term of the Lease shall commence upon either
(i) the tenth day following the date on which the Leased Premises are Ready for
Occupancy, determined as set forth in paragraphs (a) and (d) of Addendum #3
hereto, or (ii) the date on which the Leased Premises are occupied by the
Tenant, whichever first occurs, and shall continue for twenty (20) years,
terminating at midnight of the last day of the calendar month in which the
twentieth (20th) anniversary of the commencement date occurs.
(c) Other Defined Terms. Each reference in this Lease to
any of the following terms shall be construed to incorporate the following data
stated opposite each term.
(1) Tenant's Uses: Tenant may use the Leased
Premises for any uses permitted by law and by any recorded covenants and
restrictions relating to the Leased Premises listed on Exhibit "C" hereto;
provided, however, that Tenant may not conduct any dangerous, hazardous, noxious
or offensive use. Promptly after the date of execution hereof (or, in the case
of applications dependent upon construction of the building, as soon as such
applications are permissible), Landlord shall apply for, and use its best
efforts to obtain in final and unappealable form, all such zoning, subdivision,
building, Department of Environmental Resource and other federal, state and
local governmental permits and licenses as may be required for lawful
construction of the building (as defined in paragraph (a) of Addendum #1 hereto)
and for Tenant's lawful use and occupancy of the Leased Premises as a corporate
headquarters and office building, including, without limitation, a final
certificate of occupancy from Uwchlan Township and all required approvals from
the Department of Labor
and Industry in Harrisburg. Tenant at all times during the term hereof shall
promptly comply with all laws, ordinances, orders and regulations affecting the
Leased Premises and their cleanliness, safety, occupation and use, unless such
compliance is necessitated by Landlord's failure to construct the building in
accordance with Addendum #3 to this Lease, or comply with its other obligations
hereunder, in which case Landlord shall promptly comply therewith. Tenant shall
have the right, upon giving notice to Landlord, to contest any obligation
imposed by the preceding sentence and to defer compliance during such contest.
Tenant shall indemnify and hold harmless Landlord from any fine or penalty
incurred by Landlord by reason of such deferral. Tenant shall not do or permit
anything to be done in or about the Leased Premises, or bring or keep anything
in the Leased Premises that will in any way cause suspension or termination of
the fire or other insurance upon the building. Tenant will not perform any act
or carry on any practices that may injure the building or be a nuisance or
menace to tenants of adjoining premises. Tenant shall not permit open storage on
the demised land detrimental to the appearance of a garden-type industrial
development; and shall require loading and unloading and parking of cars for
employees, customers and visitors, in connection with Tenant's business, to be
done so far as practicable on the Leased Premises and not on adjacent streets.
(2) Landlord's Address: 000 Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000.
(3) Tenant's Address at Leased Premises: 000 Xxxxxxxxx
Xxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
(4) Tenant's Address until Commencement of the Term:
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000.
(5) Liability Insurance Amounts: Bodily injury:
single limit - $1,000,000; Property damage: single limit - $1,000,000.
(6) Scheduled Occupancy Date: The date which is ten
(10) months from the date hereof.
(d) Attachments to Lease. The following exhibits and
addenda are attached to this Lease and are incorporated herein by reference and
are to be construed as a part of this Lease:
Description of Leased Premises - Exhibit "A"
Protective Restrictions - Exhibit "B"
Title Objections - Exhibit "C"
Schedule of plans and specifications - Exhibit "D"
Outline of the Park - Exhibit "E"
Addendum #1 - Computation of Rent for the Eleventh through Twentieth Years
of the Lease Term
Addendum #2 - Tenant's Option to Extend Term
Addendum #3 - Construction of Building and Improvements by Landlord
Addendum #4 - Enforcement of Declaration of Protective Restrictions
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2. (a) Annual Fixed Rate and Adjustment Thereto. For each year
during the term hereof, Tenant shall pay Landlord the annual rental, payable in
12 equal monthly installments in advance on the first day of each and every
month, as set forth in the schedule below:
Monthly
Annual Rent Installments
----------- ------------
First Year - $445,890.50 $37,157.54
Second Year - 449,944.05 37,495.34
Third Year - 453,997.60 37,833.13
Fourth Year - 458,861.86 38,238.49
Fifth Year - 463,726.12 38,643.84
Sixth Year - 468,590.38 39,049.20
Seventh Year - 474,265.35 39,522.11
Eighth Year - 479,940.32 39,995.03
Ninth Year - 486,426.00 40,535.50
Tenth Year - 492,911.68 41,075.97
Eleventh - Twentieth
Years: The annual fixed rent for the Eleventh through the
Twentieth years of the lease term shall be determined by the formula set forth
in Addendum #1: Computation of Rent for Eleventh through Twentieth Years of
Lease Term.
For the purposes hereof, the first year shall include the first twelve (12) full
calendar months and each succeeding year shall include the next succeeding 12
full calendar months. If the term hereof does not commence on the first day of a
calendar month, the rent in effect for the first full calendar month of the term
shall be apportioned pro rata on a per diem basis for such partial month and
such apportioned rent shall be paid on the commencement date of the term.
Any monthly installments of rent not paid within one month of the due date shall
be subject to a late charge of two (2%) percent.
(b) Security Deposit. Tenant has heretofore
deposited with Landlord the sum of Twenty-Five Thousand Dollars ($25,000.00)
(the "Security Deposit") to be held by Landlord pending commencement of the term
of this Lease. Landlord and Tenant agree that, upon commencement of the term
hereof, the Security Deposit shall be applied against the rental obligation of
Tenant for the first and (to the extent such obligation is less than the
Security Deposit) the second month's rent due hereunder. If this Lease shall be
terminated prior to commencement of the term, Landlord shall refund the Security
Deposit to Tenant within five days after such termination.
3. Subordination.
(a) This Lease is and shall be subject to and
subordinate to the lien of the existing first mortgage upon the Leased Premises,
held by Southeast National Bank, and to the lien of any first mortgage hereafter
placed upon the Leased Premises, upon condition that, in the case of any
mortgage hereafter placed upon the Leased Premises, Landlord shall have first
obtained for Tenant from the holder thereof an agreement containing the same
provisions as that to be obtained from the holder of the existing first
mortgage, as described in paragraph (b) of this Section. Notwithstanding such
subordination, as aforesaid, this Lease shall not
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terminate or be divested by foreclosure or other default proceedings under said
mortgages or obligations secured thereby, and Tenant shall attorn to and
recognize the mortgagee or the purchaser at the foreclosure or other sale, in
the event of such foreclosure or other default proceeding, as Tenant's landlord
for the balance of the term of this Lease, subject to all of the terms and
provisions hereof.
(b) Landlord agrees to use its best efforts to
obtain for and deliver to Tenant, within 15 days after the date of execution
hereof, a separate written agreement from Southeast National Bank, as holder of
the existing first mortgage on the Leased Premises, which shall contain specific
provisions against the disturbance of Tenant in its possession of the Leased
Premises and rights under this Lease provided Tenant is not in default hereunder
and the following additional provisions:
(i) So long as Tenant continues to pay the rent as
reserved in this Lease and otherwise complies with the terms and provisions
hereof, the right of possession of Tenant to the Leased Premises and all of
Tenant's rights under this Lease shall otherwise not be affected or disturbed by
such mortgagee in the exercise of any of its rights under such mortgage.
(ii) In the event the mortgagee retakes or comes into
possession of or ownership of the Leased Premises by foreclosure or otherwise,
this Lease and all rights of Tenant hereunder shall continue in effect and shall
not be terminated by any of said proceedings, and the mortgagee shall agree to
be bound by the terms and conditions of this Lease.
(iii) In the event the Leased Premises are sold or
otherwise disposed of pursuant to any right or any power contained in the
mortgage or as a result of proceedings thereon, the purchaser of the Leased
Premises shall take title subject to this Lease and all rights of Tenant
hereunder and shall agree to be bound by the terms of this Lease.
(iv) If the Leased Premises or any part thereof shall at
any time be damaged by fire or other casualty, or be taken under power of
eminent domain, the mortgagee agrees that all insurance and condemnation
proceeds will be used for the purpose of repair or rebuilding of the Leased
Premises, with any excess insurance proceeds to be retained by Tenant, as
provided in this Lease.
In the event Landlord shall fail to obtain and deliver to Tenant said written
agreement from Southeast National Bank within 15 days of the date hereof, Tenant
may terminate this Lease by sending written notice of such termination to
Landlord within ten (10) days after expiration of such fifteen (15) day period.
4. Additional Rent. Tenant shall pay as additional rent all
Real Estate Taxes, Utilities, Assessments and Insurance with respect to the
Leased Premises, as herein provided.
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(a) Payment of Real Estate Taxes. (i) Except as otherwise
provided hereinbelow, Tenant shall pay to the appropriate authorities all real
estate taxes assessed upon the Leased Premises for all tax periods wholly
included in the term, and the corresponding fraction of the real estate taxes
assessed for any fraction of a tax period in the term at the beginning or end.
The expression "real estate taxes" as used herein shall mean all real property
taxes imposed on the Leased Premises and any other taxes as may be levied in
lieu of or in substitution for or supplementary to such taxes, but shall not
include any income, excess profits, estate, inheritance, succession, transfer,
franchise, capital or other tax or assessment upon Landlord or upon the rentals
payable under the Lease, all of which shall be the obligation of the Landlord.
The term "tax period" as used herein shall mean, with respect to any real estate
tax, the fiscal year for such tax designated by the assessing authority.
Landlord shall promptly forward to Tenant all bills for taxes in time to permit
Tenant to obtain all discounts and avoid all penalties. Landlord shall permit
Tenant to obtain all bills for taxes directly from the issuing authorities.
(ii) Prior to the commencement of the term hereof,
Landlord shall pay to the appropriate taxing authority all real estate taxes for
which xxxx(s) have been issued, and Tenant shall pay its fractional share of
any such tax, as provided above, to Landlord, upon commencement of the term
hereof; if such bills have not been issued and paid as of the commencement of
the term, Tenant shall have the right to deduct from the rent next falling due
(until Tenant has been fully reimbursed therefor) Landlord's pro rata share of
such taxes for the beginning year of the term hereof.
(b) Utilities. Landlord represents and warrants that, as of
the date of substantial completion of the building (as described in Addendum #3
hereto), the Leased Premises shall be connected to the electricity, water and
sewer lines serving the municipality wherein the Leased Premises are located and
that as of the commencement of the term, all fees, including, without
limitation, all application and "tapping in" charges, all charges or deposits
for transformers and meters and all charges for consumption of such utilities
occurring prior to commencement of the term, shall have been paid, so that upon
commencement of the term such utilities shall be supplied to Tenant upon payment
of the regular fees for consumption thereof occurring after such date only.
Tenant shall pay all charges for consumption of such utilities occurring after
such date and shall indemnify Landlord against any liability or damages on
account of Tenant's non-payment thereof. Except as otherwise provided in
Sections 5(c), 6(b) or elsewhere in this Lease, Tenant has the full
responsibility of maintaining and replacing the heating-air conditioning system.
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(c) Special or Betterment Assessments. Landlord shall pay all
public, special or betterment assessments made prior to the commencement of the
term hereof or for improvements installed prior to the date of substantial
completion or which are contemplated by the work described in the Plans and
Specifications (as defined in paragraph (a) of Addendum #3 to this Lease),
including, without limitation, all assessments for initial installation of
sewers and curbs in connection with construction of the building. If any
assessment which Landlord is obligated to pay pursuant to the preceeding
sentence shall be or become payable in installments, then, for the purposes of
this Lease, all unpaid installments of any such assessment shall be deemed due
and payable and shall be paid by Landlord upon the date upon which the first
such installment is then due. Tenant shall pay any public, special or betterment
assessments for improvements other than those listed in the first sentence of
this paragraph (c). Tenant may elect to have assessments paid in installments
over the longest period permitted by law, and, subject to paragraph (d) of this
Section, shall pay to the public authorities charged with the collection
thereof, at least fifteen (15) days before they become due in each case, the
entire assessment if the election is not made, or if made, each installment,
including interest, becoming due during the term.
(d) Evidence of Payment and Right of Tenant to Contest
Assessment. Tenant shall promptly furnish Landlord and the holder of any first
mortgage upon the Leased Premises to which this Lease is subordinate with
appropriate evidence of each tax and assessment payment by Tenant to public
authority. Tenant may bring appropriate proceedings, in the name of Landlord or
Tenant or both, to contest the validity or amount of any taxes or assessments,
or to recover payments therefor, and agrees to save Landlord harmless from all
damages and costs and expenses in connection therewith. Landlord shall cooperate
with Tenant with respect to such proceedings so far as reasonably necessary.
Tenant shall be entitled to amounts recovered to the extent that such funds are
refunds or reimbursements of payments made by Tenant. Tenant may defer payment
of any tax or assessment during any such proceedings but Tenant shall pay such
tax promptly upon receipt by Tenant of notice that the Leased Premises have been
listed for judicial sale by reason of such deferred payment.
(e) Insurance. (l) Tenant, at its sole cost and expense,
shall maintain and keep in effect throughout the term hereof insurance against
loss or damage to the building (as defined in the attached Addendum #3) by fire,
by the hazards now included in the insurance customarily referred to as "All
Risks" coverage, and by such other hazards as institutional first mortgage
lenders may from time to time generally require in the case of similar
properties, in an amount at least equal to 80% of the insurable replacement cost
of the building (above foundation walls), as from time to time determined by
agreement or by appraisal made not more than once every five years, at the
expense of Tenant, by an accredited insurance appraiser, selected by Tenant and
approved by Landlord, which approval shall not be unreasonably withheld.
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Tenant may elect any deductible amount Tenant desires in connection with all of
the foregoing coverages, not to exceed 25% of the required coverage, however,
without the prior consent of Landlord. The policy or policies of insurance
required under this Section 4(e) shall name Tenant as the named insured.
Landlord agrees that it shall not be named as an insured under any of the said
policies and shall not participate in any settlement negotiations with insurers
in any claim under such policies. Such policies of insurance shall be issued by
an insurer of recognized responsibility, licensed to do business in the
Commonwealth of Pennsylvania and reasonably satisfactory to Landlord and Tenant.
For the purposes of this Section, Landlord agrees that Aetna Life and Casualty
and Reliance Insurance Companies are satisfactory insurers. Such policies shall
provide that the proceeds of any loss shall be payable to Tenant and to the
holder (as its interest may appear) of any first mortgage to which this Lease is
subordinate so long as such holder and future holders of such mortgage (such
holders being herein collectively referred to as the "Qualified Mortgagee") are
obligated to apply the proceeds of insurance in the manner provided for in this
Lease, except that if there shall be no Qualified Mortgagee, such proceeds shall
instead be payable to Tenant, to be applied in the manner provided for in this
Lease.
(2) Insurance proceeds for damage to any of the buildings
and/or improvements on the demised land, up to and including Fifty Thousand
Dollars ($50,000), when paid as provided in the preceding sentence, shall be
delivered directly to Tenant and used by Tenant for repair as provided under
this Lease. Insurance proceeds in excess of Fifty Thousand Dollars ($50,000),
shall, if payable to Tenant and the Qualified Mortgagee, be deposited in trust
with a bank or trust company acceptable to Tenant and the Qualified Mortgagee,
and be held for repair as provided in this Lease. For the purposes of the
preceding sentence, Philadelphia National Bank shall be deemed to be acceptable
to Tenant and the Qualified Mortgagee. If such proceeds are instead payable to
Tenant, such proceeds shall be deposited in trust with a local commercial bank
selected by Tenant as trustee and held for repair as provided in this Lease.
Notwithstanding the foregoing, if Tenant shall, under the terms of this Lease,
be permitted to and shall elect not to repair, all such proceeds shall be
delivered to Landlord or to such persons as Landlord may determine. In the event
Tenant shall be required to repair, or shall elect to repair, said trustee shall
disburse insurance proceeds to Tenant upon certification by Tenant that the
amounts requested either shall have been paid in connection with such repair or
shall be due to contractors, subcontractors, materialmen, architects or other
persons who have rendered services or have furnished materials for such repair,
and upon completion of such repair, the remaining balance, if any, of such
proceeds shall be paid to Tenant upon demand.
(f) Additional Provisions Respecting Insurance.
Tenant shall obtain and keep in force for the benefit of Landlord and Tenant
Comprehensive General Liability Insurance (including bodily injury and property
damages insurance) with limits at least as high as the amounts respectively
stated therefor under paragraph (c)(5) of Section 1 of this Lease. Such
insurance shall be at the Tenant's own cost and expense and shall name Landlord
as an additional insured. Insurance shall be written in companies
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reasonably satisfactory to both parties and in forms customarily in use from
time to time in the locality of the Leased Premises. For the purposes of this
paragraph, Landlord agrees that Aetna Life and Casualty and Reliance Insurance
Companies are satisfactory insurers. All insurance required to be maintained by
Tenant may be maintained by Tenant under a blanket policy covering the Leased
Premises and other premises of Tenant and/or its affiliated business
organizations. Tenant shall deposit with Landlord and such Qualified Mortgagee
as Landlord may from time to time require certificates of such insurance or
duplicate policies as Landlord and such Qualified Mortgagee may require, and
shall in all cases furnish Landlord and such Qualified Mortgagee with evidence
of payment of all premiums thereon, from time to time, as the same become due on
issue, renewal or otherwise. All required insurance shall bear an endorsement
stating that the same not be altered, amended or cancelled unless and until
Landlord and any Qualified Mortgagee named therein shall have been given ten
(10) days' advance notice of intention to do so.
5. Tenant's Covenants. Except as otherwise provided in this
Lease, Tenant agrees during the Term, and so long as Tenant's occupancy
continues:
(a) To pay when due the fixed and additional rent,
and all charges by public authority, or utility for water, electricity,
telephone, gas, sewer, and other services rendered to the Leased Premises and
service inspections made therefor, whether called charge, tax assessment, fee or
otherwise.
(b) To refrain from committing, or suffering any
waste upon the Leased Premises, or any nuisance, or any other act or thing which
may disturb the quiet enjoyment of any other tenant in the Xxxxxxxxx Creek
Industrial Park, Landlord hereby agreeing, however, that nothing done in the
normal course of business of a corporate office headquarters shall be deemed to
violate this paragraph.
(c) Except as otherwise provided hereinbelow, in
Section 6, in Addendum #3 or elsewhere in this Lease, to make all repairs
necessary to maintain the Leased Premises in good order and condition,
including, without limitation by their inclusion, interior and exterior
repainting; replacement of glass injured or broken and of floor and wall
covering worn or damaged; keeping roofs and exterior windows and doors water
tight, and plumbing, lighting, heating, air conditioning, and other utility
services in good operating condition.
Notwithstanding the foregoing, Tenant, if it shall have theretofore fulfilled
its obligation of repair hereunder, shall not be obligated to make any repair
which Tenant would otherwise be obligated to make hereunder if such repair shall
be of a capital nature and shall: (i) be required during the last year of the
term hereof; or (ii) be required to the elevator system in the building within
the last five years of the term hereof. For the purposes of the preceding
sentence, a repair shall be of a capital nature if such repair shall cost in
excess of One Thousand Dollars ($1,000.000). If Tenant shall nevertheless elect
to make any repairs of a capital nature (i) during the last year of the term
hereof or (ii) to the elevator system during the
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last five years of the term hereof, Landlord shall, upon demand by Tenant,
reimburse Tenant for a portion of the total cost of such repair(s), such portion
to be equal to the difference between (a) the total cost of the repair in
question, and (b) the product obtained by multiplying the total cost of such
repair by a fraction, the numerator of which shall be the number of whole months
remaining in the term hereof and the denominator of which shall be the estimated
useful life of such repair (expressed in months). For the purposes of the
preceding sentence, the estimated useful life of a repair shall be reasonably
determined by Tenant, in the case of repairs made by employees of Tenant, and by
the independent contractor making such repair, in the case of repairs made by an
independent contractor. If Landlord shall disagree with any determination made
by Tenant pursuant to the preceding sentence, such dispute shall be determined
by submission to an independent contractor, mutually agreeable to Landlord and
Tenant, in a proceeding in which Landlord and Tenant shall each have a full and
fair opportunity to present evidence sustaining their respective positions. The
decision of such independent contractor shall be final, conclusive and binding
upon the parties and not subject to appeal. The cost of any such proceeding
shall be shared equally by Landlord and Tenant.
(d) To use reasonable effort to maintain in good
condition all landscaped and planted areas, including but not limited to lawns,
trees, shrubs, and reflecting ponds on the Leased Premises, and to keep in good
repair all walks, parking and loading areas thereon, and keep the roadways,
walks, parking and loading areas and sidewalks on the Leased Premises clean and
free of snow and ice, and the exterior of the Leased Premises neat and clean.
(e) (Intentionally Omitted)
(f) Not to overload or deface the Leased Premises or
building, nor permit any use contrary to law, or lawful ordinance, regulation or
order of public authority, whether with respect to safety appliances or to
alterations, repairs or additions, including repairs to additions required as a
condition for continuance of use, or otherwise. Tenant shall, however, have the
right to contest any such law, ordinance, regulation or order of public
authority and to defer compliance therewith during such contest. Tenant shall
indemnify and hold harmless Landlord from any fine or penalty incurred by
Landlord by reason of such deferral.
(g) (Intentionally Omitted)
(h) To indemnify and save Landlord harmless from any
liability or injury, loss, accident or damage to any person or property, and
from any claims, actions, proceedings and cost in connection therewith,
including reasonable counsel fees, arising from wrongful act or negligence of
Tenant, or arising from any use made or thing done on or about the Leased
Premises or otherwise occurring thereon, and not due to wrongful act or omission
of or negligence of Landlord or failure of Landlord to perform its obligations
hereunder; and to keep all Tenant's employees working in the Leased Premises
covered by Workmen's compensation insurance, furnishing Landlord with copies of
certificates thereof.
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Tenant, as a material part of the consideration to be rendered to Landlord,
hereby waives all claims and agrees not to assert, at law or in equity or
otherwise, any claims or actions against Landlord for damages to goods, wares
and merchandise in, upon or about the Leased Premises or for injury to Tenant,
its agents, employees, invitees, or third persons in or about the Leased
Premises provided said claims or actions are not due to wrongful act or omission
of or negligence of Landlord, or failure of Landlord to perform its obligations
hereunder.
(i) To permit Landlord to make routine periodic
inspections of the Leased Premises during reasonable business hours and in
emergencies at any time. During the three (3) months prior to expiration of the
term hereof, Landlord shall have access to the Leased Premises during reasonable
business hours to make inspections thereof, and to show the Leased Premises to
prospective purchasers and tenants, and to keep affixed in suitable places,
without obstructing Tenant's signs or displays, notices for letting and selling.
(j) Subject to paragraph (c) of this Section 5 and
to Section 6 hereof, at the expiration or earlier termination of the Term,
promptly to yield up, clean and neat and tenantable, the Leased Premises and
those of the improvements, alterations and additions thereto, and fixtures and
equipment servicing the building, which Tenant does not elect to remove pursuant
to Section 21 hereof.
(k) To not affix any sign, decoration, notice or
other attachment of any kind or description on or to any part of the outside of
the building, without express permission of Landlord, which permission shall not
be unreasonably withheld or delayed. The expense for such signs shall be borne
by Tenant.
6. Damage by Fire or Other Casualty.
(a) In case of damage to the Leased Premises by
fire or other casualty, Tenant shall repair the damage. The work shall be
commenced promptly and completed with due diligence, except for delays due to
governmental regulation, acts of God, unusual scarcity of or inability to obtain
labor or materials, labor disputes, prolonged insurance settlement negotiations
and disputes or other causes beyond Tenant's control. Tenant shall not be
obligated to restore the Leased Premises to the precise condition in which the
same were prior to such fire or other casualty, but shall be entitled to make
such Alterations to the Leased Premises as Tenant would be entitled to make
under Section 21 hereof, provided that the value of the Leased Premises, as
repaired by Tenant, shall be not less than the value of the Leased Premises
immediately preceding such fire or other casualty.
(b) Notwithstanding paragraph (a) of this Section 6,
if the Leased Premises shall be damaged by fire or other casualty within three
years of the expiration of the term hereof, and the cost of the repair of the
building on the demised land shall exceed 10% of the value of such building
immediately preceding such fire or other casualty, Tenant may elect not to
restore the Leased Premises by sending written notice of such election to
Landlord within thirty (30) days after the date of such fire or other casualty,
whereupon this Lease shall be terminated upon the date of such written notice,
all rights and obligations
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of the parties hereto shall cease and terminate as of such date, and this Lease
shall thereupon become null and void.
7. (a) Eminent Domain. In the event that the whole of the
Leased Premises are condemned by the exercise of eminent domain, this Lease
shall terminate as of the date on which Tenant is required by the condemnor to
vacate the Leased Premises and there shall be no further liability upon Landlord
or Tenant hereunder. If only a portion of the Leased Premises is condemned which
renders the portion of the Leased Premises not taken unsuitable, in Tenant's
reasonable judgment, for the conduct of Tenant's business, Tenant may, if it
shall so elect, terminate this Lease as of the date on which Tenant is required
by Condemnor to vacate the Leased Premises by giving Landlord written notice of
the exercise of such election not less than 20 days prior to such vacation date.
If, after the exercise of eminent domain, this Lease is not terminated, Tenant
shall do such work as may be reasonably necessary to restore the remainder of
the Leased Premises to tenantable condition for Tenant's uses, but shall not be
required to expend for restoration more than the award received for the
condemnation. The work shall be commenced promptly after the date when Tenant is
required by the Condemnor to vacate the premises taken and completed with due
diligence, except for delays due to governmental regulations, acts of God,
unusual scarcity of or inability to obtain labor or materials, labor disputes,
or other causes beyond Tenant's control.
(b) Reduction in Rent - Partial Condemnation. If only a
portion of the Leased Premises is condemned, and this Lease is not terminated by
Tenant, there shall be an equitable abatement of the rent as of the date Tenant
is required by the Condemnor to vacate the portion condemned, the reduced rent
to be equal to the product of the rent immediately preceding such date and a
fraction, the numerator of which shall be the value of the Leased Premises after
the taking and the denominator of which shall be the value of the Leased
Premises immediately preceding the taking. In the event that the parties are
unable to agree upon the amount of such abatement, either party may submit the
issue for arbitration pursuant to the rules then pertaining of the American
Arbitration Association, and the determination or award rendered by the
Arbitrator(s) shall be final, conclusive and binding upon the parties and not
subject to appeal.
(c) Application of Proceeds of Award. In the event of a
condemnation by eminent domain which does not result in a termination of this
Lease, the proceeds of any award or payment, up to Fifty Thousand Dollars
($50,000), shall be delivered directly to Tenant and used by Tenant for
restoration as provided in this Lease, and upon completion of such restoration,
the remaining balance, if any, shall be paid to Landlord. If such proceeds shall
be in excess of $50,000, they shall be deposited in trust with a bank or trust
company acceptable to Tenant and the Qualified Mortgagee (as defined in Section
4 hereof), or, if there is no Qualified Mortgagee with a local commercial bank
selected by Tenant as trustee, and be held for restoration as provided in this
Lease. Said trustee shall disburse such proceeds to Tenant upon certification by
Tenant that the amounts requested either shall have been paid in connection with
such restoration or shall be due to contractors, subcontractors, materialmen,
architects, or other persons who have rendered services or who have
-11-
furnished materials for such restoration, and upon completion of such
restoration, the remaining balance, if any, of such proceeds shall be paid to
Landlord. In the event of a condemnation which results in a termination of this
Lease, the award or payment shall be applied first to reduction of the lien of
any first mortgage to which this Lease is subordinate, then to compensate Tenant
for the value of Tenant's leasehold estate, and any balance shall be payable to
Landlord. The preceding shall not preclude, and Tenant shall, in addition, have
the right to make a claim for damages separately awarded to tenants under the
Eminent Domain Code of Pennsylvania, including by way of illustration and not by
limitation, moving and related expenses.
8. Remedies of Landlord. If:
(a) Tenant fails to pay in full, when due, any and all
installments of rent and/or any other charge or payment herein reserved,
included, or agreed to be treated or collected as rent and/or any other charge,
expense, or cost herein agreed to be paid by the Tenant, and such failure is not
cured within ten (10) days after written notice from Landlord to Tenant of such
failure; or
(b) Tenant violates or fails to perform or otherwise
breaks any covenant or agreement (other than those covered in 8(a) herein
contained), and such failure or violation is not cured within thirty (30) days
after written notice from Landlord to Tenant of such failure or violation, or in
the case of a failure or violation which cannot be cured with said thirty (30)
day period, the Tenant has not commenced to cure such failure or violation
within the thirty (30) day period, or has not diligently pursued the completion
of such cure; or
(c) Tenant makes an assignment for the benefit of
creditors, or if a petition in bankruptcy is filed by or against the Tenant, or
a xxxx in equity or other proceeding for the appointment of a receiver for the
Tenant is filed, or if proceedings for reorganization or for composition with
creditors under any State or Federal law be instituted by or against Tenant, and
in the case of any of the foregoing which is involuntary, such petition, xxxx in
equity, proceeding for the appointment of a receiver or for reorganization or
for a composition is not terminated or dismissed within sixty (60) days, or if
the real or personal property of the Tenant shall be sold or levied upon by a
Sheriff, Xxxxxxxx or Constable;
Then, upon written election, but without entry or other
action, Landlord shall have the right to:
(1) (Intentionally Omitted)
(2) Collect and receive from any assignee or sub-
tenant the rents or other charges reserved herein as rent due by such assignee
or sublessee and apply the same to the rent due hereunder. Receipt of such sums
by Landlord shall in no way affect Tenant's obligations to pay any unpaid
balance of rent due hereunder. No payment by subtenant or assignor shall give
such subtenant or assignor any rights greater than those existing between
Landlord and Tenant.
-12-
(3) Terminate this lease without any right on the part
of the Tenant to save the forfeiture by payment of any sum due by other
performance of any condition, term, or covenant broken; whereupon, Landlord
shall be entitled to recover damages for such breach in an amount of rent
reserved for the balance of the term of this Lease, less the fair rental value
of the said Leased Premises, for the residue of said term.
(4) Terminate Tenant's right of continued possession
of the Leased Premises and, from time to time, without terminating this Lease
and without prejudice to any right of Landlord under this Lease, to relet the
Leased Premises or any part thereof for the account and in the name of Tenant,
for any such term or terms and conditions as Landlord in its sole discretion may
deem advisable with the right to make alterations and repairs to the Leased
Premises deemed by Landlord to be necessary in conjunction with such reletting;
and Tenant shall pay to Landlord, as soon as ascertained, the costs and expenses
incurred by Landlord in such reletting and in making such alterations and
repairs. Rentals received by Landlord from such reletting shall be applied:
first, to the payment of any indebtedness, other than rent, due hereunder from
Tenant to Landlord; second, to the payment of the cost of any alterations and
repairs to the Leased Premises necessary to return the Leased Premises to good
condition, normal wear and tear excepted, for uses permitted by this Lease and
the cost of storing any of Tenant's property left on the Leased Premises at the
time of reletting; third, to the payment of rent due and unpaid hereunder; the
residue, if any, shall be held by Landlord and applied in payment of future rent
or damages in the event of termination as the same may become due and payable
hereunder and the balance, if any, at the end of the Lease Term shall be paid to
Tenant. Should such rentals received from time to time from such reletting
during any month be less than that amount which this Lease requires be paid
during that month by Tenant hereunder, the Tenant shall pay the deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such
reletting of the Leased Premises by Landlord pursuant to this subparagraph shall
be construed as an election on its part to terminate this Lease unless a notice
of such intention be given by Landlord to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction; and notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach provided it has not been cured. In
the event Landlord shall elect the remedy in this paragraph (4), Landlord shall
use its best efforts to relet the Leased Premises for the best rent obtainable.
9. Further Remedies of Landlord. In the event of any default
as set forth above, the Landlord, or anyone acting on Landlord's behalf, at
Landlord's option, after notice and expiration of the applicable period in
Section 8 without cure of such default by Tenant:
(a) (Intentionally Omitted)
(b) (Intentionally Omitted)
(c) May Lease said premises or any part or parts thereof
to any person or persons as Landlord in its sole discretion decides, and the
Tenant shall be liable for any loss of
-13-
rent for the balance of the then current term; provided, however, that Landlord
uses its best efforts to relet the said premises for the best rent obtainable.
10. (Intentionally Omitted)
11. Ejectment. When this Lease shall be determined by
condition broken, either during the original term of this Lease or any renewal
or extension thereof, and also when and as soon as the term hereby created or
any extension thereof shall have expired, it shall be lawful for any attorney as
attorney for Landlord to file on behalf of Landlord and Tenant an agreement
permitting and authorizing the entry of an amicable action and judgment in
ejectment in any competent Court against Tenant and all persons claiming under
Tenant for the recovery by Landlord of possession of the herein Leased Premises,
for which this Lease shall be his sufficient warrant, whereupon, if Landlord so
desires, a Writ of Execution or of Possession may issue forthwith, without any
prior writ or proceedings whatsoever. If such an amicable action shall
thereafter, for any reason, be terminated and the possession of the premises
hereby leased remain in or be restored to Tenant, Landlord shall have the right
upon any subsequent default or defaults, or upon the termination of this Lease
as hereinbefore set forth, to bring one or more amicable action or actions as
hereinbefore set forth to recover possession of said premises, and the
termination for any reason of any such prior actions shall not prevent, hinder
or prejudice the right or power of Landlord to bring subsequent actions as set
forth in this paragraph.
12. Affidavit of Default. In any amicable action of ejectment,
Landlord shall first cause to be filed in such action an affidavit made by him
or someone acting for him setting forth the facts necessary to authorize the
entry of judgment, of which facts such affidavit shall be conclusive evidence,
and if a true copy of this Lease (and of the truth of the copy such affidavit
shall be sufficient evidence), be filed in such action, it shall not be
necessary to file the original as a warrant of attorney, any rule of Court,
custom, or practice to the contrary notwithstanding.
13. (Intentionally Omitted)
14. Right of Assignee of Landlord. Any assignee of Landlord's
right, title and interest in this Lease may exercise in its, his or her name,
the right to enter judgment against Tenant and to enforce all of the other
provisions of this Lease.
15. Remedies Cumulative. All of the remedies hereinbefore
given to Landlord and all rights and remedies given to him by law and equity
shall be cumulative and concurrent. No determination of this Lease or the taking
or recovering of the premises shall deprive Landlord of any of his remedies or
actions against the Tenant for rent then due, or rent which, under the terms
hereof, would in the future become due as if there has been no determination, or
for any and all sums due at the time of which, under the terms hereof, would in
the future become due as if there had been no determination, nor shall the
bringing of any action for rent or breach of covenant, or the resort to any
other remedy herein provided for the recovery of rent be construed as a waiver
of the right to obtain possession of the premises.
-14-
16. Miscellaneous Provisions.
(a) (Intentionally Omitted)
(b) Waiver. No consent or waiver, express or implied, by
Landlord or Tenant to or of any breach of any agreement or duty to the other
shall be construed as a consent or waiver of any other breach of the same or any
other agreement or duty.
(c) Approval or Consent. Whenever, after commencement of
the term hereof, any approval or consent by Landlord or Tenant is expressly
required by this Lease, the approval or consent shall not be withheld or delayed
unreasonably.
(d) Notices. Any notice, approval, consent or request
required pursuant to this Lease, shall be in writing and (unless otherwise
specified by fifteen (15) days' prior written notice), shall be addressed to the
party's address stated in paragraph (c) Section 2, 3 and 4 respectively. If so
addressed, it shall, unless otherwise provided herein, be deemed duly given and
received if posted by registered or certified mail, with sufficient postage
prepaid, return receipt requested. If Landlord by notice to Tenant at any time
designates an agent to receive payments or notices, all payments or notices from
Tenant to Landlord shall be sent to said agent until such time as Tenant shall
receive from Landlord written notice of Landlord's termination of such agency.
(e) Cost and Expense. Wherever provision is made in this
Lease for the doing of any act by any person, it is understood and agreed that
said act shall be done by such person at its own cost and expense unless a
contrary intent is expressed.
(f) Successors and Assigns. The terms and provisions of
this Lease shall be binding upon and inure to the benefit of the respective
heirs, executors, administrators, successors and assigns of Landlord and Tenant,
provided that, in any event, Landlord's liability hereunder shall be limited to
Landlord's title or interest in the Building and Leased Premises and the rents,
issues and profits arising therefrom.
(g) Time is of the Essence. The time of payment of rent
and all other times referred to for the performance of any obligation of this
Agreement are hereby agreed to be of the essence of this Agreement.
17. Law Governing - Interpretation. This Lease shall be
governed by and interpreted in accordance with the law of the Commonwealth of
Pennsylvania. If any provision of this Lease or the application of any provision
to any person or any circumstances shall be determined to be invalid or
unenforceable, then such determination shall not affect any other provisions of
this Lease or the application of said provision to any other person or
circumstance, all of which other provisions shall remain in full force and
effect. If any provisions of this Lease is capable of two constructions, one of
which would render the provision void and the other of which would render the
provision valid, the construction which would render the provision valid shall
prevail.
-15-
18. Self-Help.
(a) If Tenant shall default in the performance or
observance of any agreement or condition in this Lease other than an obligation
to pay money, and shall not cure such default within thirty (30) days after
notice from Landlord specifying the default, or in the event such default cannot
be cured within thirty (30) days, Tenant shall not commence to cure such default
within thirty (30) days and diligently pursue completion of such cure, Landlord
may, at its option, without waiving any claim for damages for breach of
agreement, at any time thereafter cure such default for the account of Tenant,
and any amount paid or incurred for the account of Tenant, Tenant agrees to
reimburse Landlord therefor or save Landlord harmless therefrom; provided that
Landlord may cure any such default as aforesaid prior to the expiration of said
30 days but after notice to Tenant if the curing of such default prior to the
expiration of said 30 days but after notice to Tenant is reasonably necessary to
protect the real estate or Landlord's interest therein, or to prevent injury or
damage to persons or property. If Tenant shall fail upon demand to reimburse
Landlord for any amount paid for the account of Tenant hereunder, said amount
shall be added to and become due as a part of the next payment of rent due
hereunder.
(b) If Landlord shall default in the performance or
observance of any agreement or condition in this Lease or shall default in the
payment of any tax or other charge which Landlord is obligated to pay hereunder,
and if Landlord shall not cure such default within ten (10) days in the case of
a default consisting of failure to pay a sum of money, or thirty (30) days in
the case of any other default, after notice from Tenant specifying the default
(or, if such a default cannot be cured within thirty (30) days, Landlord shall
not within said period commence to cure such default and thereafter prosecute
the curing of such default to completion with due diligence), Tenant may, at its
option, without waiving any claim for damages for breach of agreement, at any
time thereafter cure such default for the account of Landlord, and any amount
paid or any contractual liability incurred by Tenant in so doing shall be deemed
paid or incurred for the account of Landlord and Landlord agrees to reimburse
Tenant therefor or save Tenant harmless therefrom, and Landlord agrees that
Tenant may set off any such amounts against any and all rental payments and
other payments thereafter becoming due to Landlord under this Lease until such
indebtedness is fully paid; provided that Tenant may cure any such default as
aforesaid prior to the expiration of said thirty (30) days, but after said
notice to Landlord, if the curing of such default prior to the expiration of
said thirty (30) days is reasonably necessary to protect the real estate or
Tenant's interest therein or to prevent injury or damage to persons or property.
Nothing contained in this Section shall be construed to limit the rights of set
off specifically granted Tenant in Section 4(a) hereof, in Paragraph (c) of
Addendum #3 hereof, or elsewhere in this Lease, nor shall the presence of a
specific right of set off with respect to non-performance of certain obligations
of Landlord hereunder but not others be construed to limit application of the
general right of set off set forth above to any other obligation of Landlord
hereunder.
19. Broker. Tenant represents that it has dealt with no
realtors, brokers, or agents in connection with the negotiation
-16-
of this Lease and the renting of the Leased Premises hereunder. Should any
claims be made for brokerage commissions, through or as a result of dealings of
Tenant or its agents or representatives, Tenant shall indemnify and hold
Landlord harmless against any liability in connection therewith. Landlord shall
pay commissions to brokers only pursuant to separate written agreements between
Landlord and such brokers.
20. (Intentionally Omitted)
21. Alterations. Tenant may, from time to time, at its sole
cost and expense, make such alterations, additions, renovations and repairs
(hereinafter collectively referred to as "Alterations"), in, of, or to the
Leased Premises and install therein such trade and other fixtures (hereinafter
referred to as "Fixtures"), as Tenant deems necessary or desirable, provided
that Tenant shall have first furnished Landlord with copies of the plans of any
proposed Alteration and provided further that, in the case of Alterations to the
structure of the building or effecting a material change in the exterior
appearance of the building, Tenant shall have obtained Landlord's prior written
consent thereto, which consent shall not be unreasonably withheld or delayed.
All Alterations and all Fixtures installed by Tenant in the Leased Premises
shall remain the property of Tenant until the expiration of the term, and Tenant
may (but shall not be obligated to) remove any such Alterations or Fixtures at
or before the expiration of the term, provided that Tenant shall repair any
damage caused by such removal. Landlord shall cooperate with Tenant in obtaining
such building permits, licenses, and other governmental approvals which may be
required in connection with the making of any Alterations, and shall execute
such documents as may be required in furtherance of such purpose. Any
Alterations or Fixtures not removed by Tenant at or prior to the expiration of
the term hereof shall be and become the property of Landlord.
22. Assignment. Tenant shall have the right to assign this
Lease, including, without limitation, Tenant's rights of purchase as set forth
in Section 25 and Addendum #3 hereof, or sublet all or any portion of the Leased
Premises for any use not in violation of this Lease, provided, however, that
Tenant shall nevertheless continue to remain liable hereunder. If Tenant assigns
this Lease, Landlord, when giving notice of any default to said assignee or any
future assignee, shall also serve a copy of such notice upon Chemical Xxxxxx
Corp. or any successor to Chemical Xxxxxx Corp. (Chemical Xxxxxx Corp. or its
successor being hereinafter called "Original Tenant"), and no notice of default
shall be effective until a copy thereof is received by the Original Tenant. The
Original Tenant shall have the same period after receipt of such notice to cure
such default as is given to Tenant under this Lease. If any default of such
assignee is incapable of being cured by the Original Tenant, then,
notwithstanding the failure to cure same, if Landlord shall elect to terminate
such assignee's right of possession without terminating this Lease, the Original
Tenant shall thereupon have the right to resume possession under the terms and
conditions hereof for the remainder of the term hereof, provided the Original
Tenant complies with all of such terms and conditions as the same apply to the
Original Tenant, and if Landlord shall elect to terminate
-17-
this Lease, the Original Tenant shall have the option to enter into a new lease
for the remainder of the term of this Lease (including any options to renew the
term hereof) upon the same terms and conditions as are contained under this
Lease, such new lease to commence on the date of termination of this Lease.
Notwithstanding the foregoing, if Landlord delivers to the Original Tenant,
together with Landlord's notice, a release as to all future liability under this
Lease, the Original Tenant shall not have the foregoing options.
23. Waiver of Landlord's Lien and Distraint. Landlord hereby
waives all liens upon any and all goods, merchandise, equipment, fixtures,
furniture and other personal property owned or leased by Tenant or otherwise
contained in the Leased Premises, and all rights to levy or distrain thereupon
for rent, in arrears, in advance, or both, which may be granted Landlord by or
under any present or future laws. Landlord shall, promptly upon request of
Tenant, execute such documents as Tenant may require confirming the waivers made
by Landlord in this Section.
24. Landlord's Warranties. Landlord represents, warrants and
covenants that:
(i) Landlord has good and marketable title to the interest
of the buyer of the Leased Premises under an installment Agreement of Sale
thereof from Xxxxxxx County Industrial Development Authority, as the seller,
free and clear of all liens, defects and encumbrances, excepting only those
listed on Exhibit "C" hereto; and
(ii) The Leased Premises are separately assessed for
purposes of the applicable local real estate taxes and constitute a separate
legal subdivision under the applicable local subdivision ordinance.
25 Tenant's Right of First Refusal. Landlord shall not at any
time during the term hereof or any extension hereof sell or convey or agree to
sell or convey the Leased Premises without first having complied with the
requirements of this Section 25. If, at any time and from time to time during
the term of this Lease, or any extensions thereof, Landlord shall desire to sell
or convey the Leased Premises, Landlord shall obtain a bona fide written offer
to purchase all of the Leased Premises upon terms acceptable to Landlord, or
shall enter into a contract to sell all of the Leased Premises subject to this
right of first refusal. Landlord shall, within twenty (20) days after receipt of
such offer or the date of entering into such contract, deliver to Tenant a copy
of such offer or contract which shall contain all the terms and provisions of
the offer or contract of sale. Provided Tenant shall not, at the time of
exercise, be in default beyond expiration of the applicable period in Section 8
hereof, after notice, without cure of such default, Tenant shall have the right,
which must be exercised within thirty (30) days after receipt of such offer or
contract of sale, to purchase the Leased Premises for the same price and
otherwise upon substantially the same terms and conditions as those set forth in
such offer or contract of sale. If Tenant elects not to so purchase the Leased
Premises, then Landlord may sell the Leased Premises to the person making the
offer or entering into the contract only, for the same price and otherwise in
strict accordance with
-18-
the terms and conditions set forth in such offer or contract of sale, or on
terms less favorable to the buyer, within six (6) months thereafter. If such a
sale of the Leased Premises is not consummated by Landlord within such time,
however, Tenant shall continue to have the right of first refusal to purchase
the Leased Premises in the manner hereinbefore provided, under the same or any
other offer or contract of sale.
Except as otherwise provided hereinbelow, Landlord shall not obtain any offer or
enter into any contract of sale applicable to less than all of the Leased
Premises or to the Leased Premises together with any other real or personal
property or subject matter as a unit, and no sale or conveyance pursuant to such
an offer or contract of sale shall be deemed to comply with the terms hereof.
For the purposes of this Section, any sale, conveyance or transfer of all or
substantially all of the partnership interest in Landlord shall be deemed to be
a sale or conveyance of the Leased Premises, and Landlord shall therefore comply
with the provisions hereof in connection with any such sale, conveyance or
transfer. Landlord may obtain an offer or enter into a contract of sale subject
to this right of first refusal applicable to the Leased Premises together with
other real property in the Park (as hereinafter defined) upon condition that
such offer or contract of sale shall apply to all of the Leased Premises and to
a parcel or parcels in the Park cumulatively containing not less than 75% of the
total land area in the Park. The Park shall be the area outlined in red on
Exhibit "E" hereto. For the purposes of this Section, no sale or conveyance by
Landlord of any real property in the Park shall diminish the size or area in the
Park or the amount of land area to which an offer or contract of sale must be
applicable to be permitted hereunder.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the parties hereto have caused these presents to be executed, under seal, the
day and year first above written.
Attest: LANDLORD:
(Corporate Seal) XXXXXXXXX PLACE, A LIMITED PARTNERSHIP
By: XXXXXXXXX CREEK INDUSTRIAL PARK,
INC., Sole General Partner of
XXXXXXXXX PLACE, A LIMITED
PARTNERSHIP
/s/ [Illegible] By: /s/ Xxxxxxx X. Xxxx
----------------------------- ----------------------------
Asst. Sec. President
Attest: TENANT:
(Corporate Seal) CHEMICAL XXXXXX CORP.
/s/ X. X. Xxxxxx, Xx. By: /s/ X. X. Xxxxxx
----------------------------- ----------------------------------
-19-
ADDENDUM #1 TO LEASE AGREEMENT
Computation of Rent for the Eleventh through Twentieth Years
of Lease Term. For each year of the eleventh through twentieth years of the
lease term, the annual rental rate shall be adjusted by computations based upon
the Consumer Price Index for Rent (sometimes herein referred to as the "CPI for
Rent"). For the purposes of this Addendum and Addendum #2, the Consumer Price
Index for Rent shall refer to the line bearing the designation "Rent,
residential" in the Consumer Price Index for all Urban Consumers prepared by the
Bureau of Labor Statistics (1967 - 100) New Series.
(a) The initial step in these computations shall be to
determine the average annual increase in the Consumer Price Index for Rent
during the ten year period ending the last day of the eleventh calendar month of
the tenth year of the lease term. The average annual increase for this period
shall be computed by dividing the total increase for this period by ten. This
average annual increase shall be a constant to be used in each year for
computing the increase in the annual rental rate. For example, if the Consumer
Price Index for Rent for the month of the commencement of the term shall be
175.0 and for the 11th month of the tenth year of the term shall be 315.0, then
the total increase in the Consumer Price Index for Rent for the ten year period
is 80% and the constant to be applied each year in computing the rental rate
increase shall be 8% (herein referred to as the "CRI Constant").
(b) To determine the rental rate increase for any year of the
11th through 20th years of the lease term, the CRI Constant, obtained by (a)
above, should be multiplied by a specific portion of the prior years rental
rate. This portion in each year shall be the amount by which the immediately
preceeding year's rental exceeded $377,790.86. The resultant increase shall be
added to the prior years rental rate. If, for example, the CRI Constant becomes
8%, as per the example in (a) above, and since the rental rate in the 10th year
is already fixed at $492,911.68, the rentals for the 11th through 20th years
would be computed as follows:
11th year: $492,911.68 (lOth year rental rate)
- 377,790.86 (as per (b) above)
-----------
115,120.82
x .08 (CRI ten year annual average constant)
-----------
9,209.67 (Rental rate increase)
+ 492,911.68 (Prior years rent)
-----------
$502,121.35 (llth year rental rate)
12th year: $502,121.35 (llth year rental rate)
- 377,790.86 (as per (b) above)
-----------
124,330.49
x .08 (CRI ten year annual average constant)
-----------
9,946.44 (rental rate increase)
502,121.35 (Prior years rent)
$512,067.79 (12th year rental rate)
Using these computations, the annual rental rates in the 13th through 20th
years, if the CRI Constant were to become .08 as used for these examples,
would be:
13th year - $522,809.94 17th year - $575,087.72
14th year - $534,411.47 18th year - $590,871.47
15th year - $546,941.12 19th year - $607,917.92
16th year - $560,473.14 20th year - $626,328.08
(c) In no event shall the rental rate be decreased by
application of the CRI Constant as set forth in this addendum.
(d) In the event that the Department of Labor shall change the
base period used in computing the aforesaid CPI Index for Rent, adjustments
shall be made to reflect the intent of the parties to provide for rental
increases which relate to governmental financial indices as aforesaid. If for
any reason the aforesaid Index shall be discontinued, another appropriate
financial index published by a Federal governmental agency or a financial
institution shall be used. If the parties cannot mutually agree upon the
financial index to be used, the same shall be determined by the Chairman of the
Department of Economics at Xxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx. The cost of such determination shall be shared equally by the
parties.
-2-
ADDENDUM #2 TO LEASE AGREEMENT
Tenant's Option to Extend Term.
So long as Tenant shall not be in default hereunder beyond the
applicable period after notice of such default, as set forth in Section 8 of
this Lease, at the time of the exercise of its election, Tenant shall have the
right, at its election, to extend the original term of this Lease for one (1)
additional term of ten (10) years, provided that Tenant shall give the Landlord
written notice of the exercise of its election at least 180 days prior to the
expiration of the then current term. The term shall be thereby extended without
the requirement of any action on the part of the Landlord. Tenant may also
terminate this Lease at the end of the original term hereof by giving Landlord
written notice of intent to terminate not less than 180 days prior to expiration
of such time. Provided, however, if Tenant does not give such written notice,
Landlord may terminate this Lease or change the terms of this Lease by written
notice to Tenant given not less than ninety (90) days prior to the expiration of
the term. In the event neither party gives notice, this Lease shall continue on
the same terms and conditions in force immediately prior to the expiration of
the term and for a further period of one year and so on from year to year unless
or until terminated by either party hereto giving the other written notice of
intent to terminate at least 180 days before the end of the then term. Except
for the rental rate for the fixed rent, all of the terms, conditions and
provisions of this Lease shall apply to each extended term. The rental rate for
the fixed rent during each year of such extended term, whether extended by
Tenant's notice or the failure of either party to give notice, shall be computed
in the same manner as the rental rate for the 11th through 20th years of the
lease term (as set forth in Addendum #1, except that the Average Annual Increase
in the CPI for Rent (as computed in (a) of Addendum #1) shall be recomputed
using the ten-year period expiring on the last day of the 11th calendar month of
the last year of the immediately preceeding lease term or extension term). Thus
applying the examples set forth in Addendum #1 and assuming the CPI for Rent has
increased $0.85 during the ten-year period ending the 11th month of the 20th
year of the lease term, the CRI Constant would become 0.085 and the rental rates
for the initial two years of the option term, if Tenant exercises its option,
would be:
1st year: $626,328.08 (20th year rental rate)
- 377,790.86
-----------
248,537.22
x .085 (CRI Constant)
-----------
21,125.66 (rental rate increase)
+626,328.08
-----------
$647,453.74 (lst year rental rate)
2nd year: $647,453 74 (1st year rental rate)
- 377,790.86
-----------
269,662.88
x .085 (CRI Constant)
-----------
22,921.34 (rental rate increase)
+ 647,453.74
-----------
$670,375.08 (2nd year rental rate)
ADDENDUM #3 TO LEASE AGREEMENT
Construction of Building and Improvements by Landlord.
(a) (1) Landlord agrees to construct on and as part of the
Leased Premises an office building and other improvements and service facilities
therefor (hereinafter collectively referred to as the "building"), all in
accordance with the construction plans and specifications identified on the
schedule of plans and specifications attached hereto as Exhibit "D", as such
plans and specifications may be modified by those of the Change Orders (as
defined in paragraph (b) of this Addendum), which Landlord is obligated to
perform, which plans and specifications, as so modified, are herein referred to
as the "Plans and Specifications". The building shall be located on the premises
described in Exhibit "A", as shown on the site plan identified as Item 1 on
Exhibit "D" hereto, and shall be Ready for Occupancy on or before the Scheduled
Occupancy Date. Subject to paragraph (f) of this Addendum, the Scheduled
Occupancy Date shall be postponed for a period of time equal to the length of
such delays in construction, if any, experienced by Landlord, due to
governmental regulations, acts of God, unusual scarcity of or inability to
obtain labor or materials, labor disputes, or other causes beyond Landlord's
reasonable control. For the purposes of the preceding sentence failure of
Landlord to secure funds to complete the construction of the building shall not
be deemed a cause beyond Landlord's reasonable control. The work to be done by
Landlord shall include payment of all charges involved in the installation of
sewer, water, and electrical facilities servicing the Leased Premises.
For the purposes of this Addendum and paragraph (b) of Section
1 of this Lease, but subject to paragraph (d) of this Addendum, the building
shall be considered Ready for Occupancy when (1) the construction has been
substantially completed, notwithstanding that certain "touch-ups" or
"adjustments" may be required for full completion provided that (i) neither the
failure of completion nor the act of completion shall interfere with Tenant's
use or enjoyment of the Leased Premises or any rights of Tenant under this
Lease, which determination shall be made solely by the Tenant as it applies to
the Plans and Specifications, and (ii) Landlord shall diligently complete any
such touchups or adjustments upon receiving notice thereof; (2) Landlord shall
have obtained and delivered to Tenant all such final and unappealable
governmental permits and licenses as Landlord is obligated to obtain pursuant to
paragraph (1) of Section l(c) of this Lease; and (3) Tenant shall have received
written notice from Landlord that Landlord deems the building to have been
substantially completed in accordance herewith.
(2) For the purposes of the preceding paragraph (1), Landlord
and Tenant agree that in no event shall the Leased Premises be deemed to be
substantially completed, until:
(a) all ceilings and lighting are in and operative;
(b) all walls and partitions have been erected, with all
doors and hardware installed, and have received final painting or wall covering;
(c) all flooring has been installed, cleaned, and buffed;
(d) all elevators, heating, air conditioning, plumbing and
electrical systems have been installed and are in good working condition; and
(e) debris caused by Landlord's trades, and others have
been removed and the Leased Premises are clean.
(3) Landlord hereby warrants that all construction will be of
a good and workmanlike manner, in full compliance with all laws, rules,
regulations and orders of all governmental authorities having jurisdiction
thereof, in full accordance with the Plans and Specifications, free and clear of
mechanics liens, and agrees to cure, at Landlord's sole cost and expense, any
and all construction defects or variances from the Plans and Specifications or
other breaches of said warranties, promptly after receipt of notice thereof from
Tenant, for a period of one (1) year from the date of substantial completion,
except in the case of defects in: (i) the built-up roof, in which case the
foregoing period shall be two (2) years (provided, however, that Tenant shall
notify Landlord in writing and gain Landlord's written approval, which approval
shall not be unreasonably withheld or delayed, should any penetrations or
additional loads to the roof be contemplated); (ii) items on the Punchlist (as
defined below in paragraph (c)), in which case the period shall be one (1) year
from the date of completion of the item in question); and (iii) latent defects
in the structure of the building, in which case the period shall continue
perpetually. For the purposes of the preceding sentence: (1) Landlord's approval
to penetrations or additional loads to the roof shall be deemed reasonably
withheld if a contractor other than the contractor which originally installed
the roof shall be performing the work resulting in such penetration or
additional load, and (2) Tenant shall notify Landlord of any latent defect in
the building to which Landlord's warranties hereunder apply within 6 years of
the date upon which Tenant first becomes aware of such latent defects. Landlord
agrees to and does hereby assign to Tenant any and all rights of Landlord under
all warranties and guarantees applicable to the building or any portion thereof
or equipment therein or any work performed thereon obtained by Landlord from any
contractor, subcontractor, supplier or other person(s) supplying work or
material for the building which extend beyond the periods in the immediately
preceding sentence, such assignment to be effective immediately upon expiration
of the applicable period. Landlord agrees that Tenant will have the right to
institute and conduct, at its sole cost and expense, in its name, in the name of
Landlord or both, such legal or other proceedings as Tenant may consider
appropriate to recover damages or other relief under any of the guarantees or
warranties hereby assigned to Tenant. Any monetary reward or other relief
recovered by Tenant shall be retained by Tenant alone. Landlord shall fully
cooperate with Tenant in the conduct of such proceedings, and shall, without
limitation, furnish such data, documents, information and assistance and make
such appearances as may reasonably be required by Tenant. Landlord agrees to
execute all necessary instruments in connection with any such proceedings.
-2-
(b) (1) The plans and specifications listed on Exhibit "D"
hereto shall be final and shall not be changed by Landlord without the prior
written consent of Tenant. Tenant shall, however, have the right to make changes
from time to time in the plans and specifications (which changes are herein
referred to individually as a "Change Order" and collectively as "Change
Orders"), provided such changes do not alter the structure of the building, by
written notice to Landlord specifying such change. Except to the extent that
Tenant may elect to cancel or modify any Change Order by written notice of
cancellation or modification to Landlord prior to Landlord's performance
thereof, Landlord shall cause the construction of the building to be performed
in accordance with all of the Change Orders.
(2) If Tenant shall so request of Landlord, Landlord
shall, prior to performing the work required by any Change Order, promptly
obtain and submit to Tenant not less than three (3) bids from reputable building
contractors for the performance of such work. At Tenant's option, Landlord shall
either:
(i) Accept whichever of such bids Tenant may
designate; or
(ii) Reject all such bids (in which event such Change
Order shall be deemed cancelled); or
(iii) Engage any other contractor designated by Tenant
to perform such work (notwithstanding that such contractor was not originally
selected by Landlord to submit a bid pursuant to the preceding sentence), unless
engaging such contractor would cause a disruptive conflict or controversy with
labor organizations representing trades performing construction of the buildings
for Landlord.
In addition to the foregoing, Landlord shall purchase any items designated by
Tenant which are necessary to complete performance of any Change Order from any
supplier of such item(s) designated by Tenant.
Notwithstanding the foregoing, Landlord shall not be obligated to engage any
contractor designated by Tenant or purchase items from any supplier designated
by Tenant upon condition that, in the case of contractors designated by Tenant,
Landlord shall cause its contractor to perform the work to be performed by
Tenant's contractor for a price not to exceed the bid of Tenant's contractor,
and, in the case of item(s) to be purchased from a supplier designated by
Tenant, Landlord shall supply the identical item(s) for a price not to exceed
the price quoted by Tenant's supplier.
(3) If, as a result of any Change Order, the direct cost
and expense of construction of the building shall be increased, taking into full
account all savings in construction costs resulting therefrom, and whether or
not Landlord shall have received and submitted to Tenant bids in connection with
such Change Orders, as provided above, Landlord shall give Tenant written notice
of such increase (herein referred to as the "Cost Increase") prior to performing
such Change Order. Landlord shall not thereafter proceed to perform such Change
Order until Tenant shall have executed a form ordering the performance of the
Change Order to proceed. If Landlord shall fail to give Tenant notice of any
-3-
Cost Increase in connection with any Change Order, then, for the purposes of
computing the amounts due from Tenant by reason of such Change Order, as set
forth in Paragraph (4) below, there shall be deemed to be no Cost Increase
resulting from such Change Order (unless the cost of construction shall be
decreased, in which event such decrease shall be accounted for in the matter
therein provided).
(4) Upon Completion of any Change Order resulting in a
Cost Increase, provided Landlord shall have given Tenant written notice thereof
as provided above, Tenant shall pay to Landlord an amount equal to 120.84% of
the Cost Increase. If, as a result of any Change Order, the direct cost and
expense of construction shall instead be decreased, Landlord shall refund any
amounts previously paid by Tenant pursuant to the preceding sentence, up to
79.16% of such decrease, and Tenant shall be entitled to offset any excess or
79.16% of such decrease over the amount of Landlord's refund against amounts
thereafter becoming due from Tenant under the preceding sentence.
(c) Landlord shall prepare and submit to Tenant, together with
Landlord's notice of substantial completion given pursuant to paragraph (a) of
this Addendum, a list of items (herein referred to as the "Punchlist"), which
remain to be performed by Landlord to complete construction of the building in
full accordance with the Plans and Specifications, together with a reasonable
estimate of the cost of performing each such item. Upon submission of the
Punchlist, Landlord shall promptly commence and diligently proceed to perform
all of the items listed thereon. Landlord shall complete such performance within
ninety (90) days after the date of Landlord's notice, except that if final
balancing of the heating, ventilating and air conditioning system shall be an
item on the Punchlist, and the date of substantial completion shall not occur
during the summer season, such final balancing need not be completed unti1
promptly following the commencement of the immediately following summer season.
If Landlord shall fail to perform fully any of the items on the Punchlist within
thirteen months after substantial completion of the building, Tenant shall have,
in addition to Tenant's other rights here under and at law and in equity, the
right to perform such item(s) on behalf of Landlord and do all necessary work in
connection therewith, and Landlord agrees to pay to Tenant forthwith an amount
equal to 150% of the cost of such item(s) as specified on the Punchlist, and
Landlord agrees that Tenant may set off the amount of such indebtedness against
any and all rental payments and other payments thereafter becoming due to
Landlord pursuant to the provisions of this Lease, until such indebtedness is
fully paid. Failure of Landlord to include upon the Punchlist any item which
Landlord may be obligated to perform under the Plans and Specifications shall
not relieve Landlord of such obligation.
(d) If Tenant shall disagree with Landlord's notice stating
that construction of the building has been substantially completed, or upon the
items (or the cost thereof) to appear on the Punchlist, Tenant shall give
Landlord written notice of such disagreement within ten (10) days after actual
receipt of such notice and the Punchlist. Such disagreement(s) shall thereupon
be determined by submission to Xxxx Xxxxxxx, whose address is P. X. Xxx 000,
Xxxxxxxxxx, Xx. 00000 ("Restall") in a proceeding
-4-
to be conducted on the Leased Premises on such business day and such business
hour within ten (10) business days after the date of Tenant's notice of
disagreement, as Tenant may specify in such notice. In such proceeding, Landlord
and Tenant shall, in the presence of each other and Restall, each have a full
and fair opportunity to present evidence sustaining their respective positions.
The decision of Restall in any such dispute shall be final, conclusive and
binding upon the parties and not subject to appeal. The cost of any such
proceeding shall be shared equally by Landlord and Tenant. In the event Tenant
shall dispute the date of substantial completion, commencement of the term
hereof and Tenant's rental and other obligations hereunder shall be suspended
until determination of such dispute and Tenant shall not be deemed to be in
default hereunder by reason of non-performance of such obligations. Upon such
determination, the date of substantial completion, as determined by Restall,
shall control for purposes of determining when the Leased Premises are Ready for
Occupancy and the date of the commencement of the term. In the event Restall
shall determine to add to or modify the items and/or the cost of completion
thereof appearing on the Punchlist, such additions and/or modifications shall,
for the purposes of paragraph (c) of this Addendum, be deemed to have appeared
on the Punchlist as originally submitted to by Landlord and the respective
rights and obligations of the parties with regard to such additions and/or
modifications shall be the same as if such additions and/or modifications had
appeared on the Punchlist as originally submitted.
(e) Landlord shall commence construction of the building
promptly after the date of execution hereof, and shall diligently and
continuously proceed with such construction until completion thereof. Anything
contained herein to the contrary notwithstanding, if construction of the
building shall cease, and, in Tenant's reasonable opinion, no material progress
towards completion of construction shall occur for a period of two months
following written notice of such cessation from Tenant to Landlord, then Tenant
shall have the same rights of purchase of the Leased Premises or termination of
this Lease as are set forth in paragraph (f) below, which rights may be
exercised by written notice thereof to Landlord given at any time after the
expiration of such two month period and prior to the active resumption of such
construction.
(f) Anything contained in paragraph (a) of this Addendum or
elsewhere in this Lease to the contrary notwithstanding, if the building shall
not be Ready for Occupancy on or before the date which is 22 months after the
date of execution hereof, Tenant shall have the right, by giving Landlord
written notice of the exercise thereof within sixty (60) days after the
expiration of such 22 month period, either (i) to terminate this Lease,
whereupon this Lease and all of the rights and obligations of the parties
hereunder shall cease and terminate and this Lease shall thereupon become null
and void; or (ii) to purchase the Leased Premises, whereupon Tenant's notice of
exercise of this option to purchase and this Lease shall constitute an agreement
of sale between the parties whereby Landlord shall agree to sell and Tenant
shall agree to purchase the Leased Premises upon the following terms and
conditions:
-5-
(1) Closing for the purchase of the Leased Premises shall
be held on such date to be not more than four (4) months after Tenant's notice
of exercise of this option to purchase, at such place and at such hour as shall
be designated in such notice.
(2) The purchase price for the Leased Premises shall be a
sum equal to the amount owing from Landlord to the holder of any first mortgage
on the Leased Premises as of the date of Tenant's notice exercising this option
to purchase, plus accrued interest on such amount to the date of closing, plus
Two Hundred Fifty Thousand Dollars ($250,000). Notwithstanding the foregoing, if
Tenant shall elect to take title to the Leased Premises under and subject to
such existing first mortgage, the purchase price shall instead be equal to
$250,000.00.
(3) The purchase price shall be payable by Tenant to
Landlord at the time of closing by cashier's check or certified check or the
plain check of a title insurance company.
(4) Landlord shall pay for any documentary stamps to be
affixed to the deed of conveyance. Realty transfer taxes, if any, imposed upon
or in connection with the conveyance shall be divided equally between Landlord
and Tenant.
(5) Landlord shall convey to Tenant a good and marketable
fee simple title to the Leased Premises, free and clear of all liens,
encumbrances, easements, restrictions and other title objections, except those
numbered 3, 5, 6, 7, 8, 9, 13 and 15 in Exhibit "C" hereto,* and to the lien of
any first mortgage to which this Lease is subordinate, if Landlord shall elect
to take title subject to such first mortgage as provided in paragraph (2) of
this option. Tenant's title shall be insurable as aforesaid at ordinary rates by
any reputable title company of Tenant's choice.
(6) If title to the Leased Premises shall not be in
accordance with the requirements of paragraph (5) above, Tenant shall have the
option of taking such title to the Leased Premises as Landlord can give, with an
appropriate abatement of the purchase price for all monetary liens of
ascertainable amount, and/or of terminating this Lease, or of continuing this
Lease in effect.
(7) Real estate taxes and water and sewer rents and
charges shall be apportioned pro rata on a per diem basis as of the date of
settlement.
(g) If, by reason of the events described in paragraphs (e) or
(f) hereof, Tenant shall have a right to purchase the Leased Premises and Tenant
shall request any documents or information for the purpose of enabling Tenant to
determine whether or not to exercise its right to purchase, Landlord shall
promptly comply with such request and deliver such documents and information,
and Tenant or its nominee shall have the right to audit all of Landlord's books
and records pertaining to the Leased Premises and construction of the building
thereon prior to exercising any right to purchase the Leased Premises.
*to the usual survey exception,
-6-
(h) The foregoing rights to terminate this Lease or purchase
the Leased Premises set forth in paragraphs (e) and (f) above shall constitute
Tenant's sole remedies in the event of the defaults described in such
paragraphs, and Tenant shall have no right to xxx for damages in the event of
any such default.
(i) Tenant and its authorized representatives shall have the
right, from time to time, during the course of construction of the building, to
enter upon the Leased Premises for the purpose of inspecting the work, taking
measurements and making plans, and, provided that such entry shall not interfere
with Landlord's construction of the building and provided further that Tenant
shall have acknowledged to Landlord that Landlord has fulfilled its obligation
to remove all debris from the portion of the Leased Premises to be so entered
and to leave such portion clean, so that Landlord shall not thereafter have any
obligation to clean such portion (unless Landlord shall be responsible for
further dirt and debris therein), then for the purposes of installing trade
fixtures and interior decor, and for any other such purposes other than
operation of an office as may be appropriate or desirable, without being deemed
thereby to have occupied the Leased Premises for the purposes of Section 1(b) of
this Lease or obligated itself to pay rent or other charges. Tenant agrees that
Landlord shall have no liability for damage to any property of Tenant stored in
the Leased Premises during construction except for damage caused by negligence
of Landlord, its employees, agents or invitees.
(j) Landlord agrees to supply Tenant with copies of all
inspection reports it receives from the holder of any construction or permanent
mortgages upon the Leased Premises within five days after receipt of such
reports from such holders.
-7-
ADDENDUM #4 - ENFORCEMENT OF DECLARATION OF PROTECTIVE RESTRICTIONS
Landlord and Tenant acknowledge that the Leased Premises,
together with certain other parcels of land forming Xxxxxxxxx Creek Industrial
Park, are subject to certain restrictions and other provisions set forth in a
certain Declaration of Protective Restrictions, recorded in the Office of the
Recorder of Deeds in and for Xxxxxxx County, in Deed Book 175, Page 946, a copy
of which is attached to this Lease as Exhibit "B" (the "Declaration"). Landlord
represents and warrants that, as of the date of execution hereof, Landlord has
the right and power to enforce the covenants, restrictions and other provisions
contained in the Declaration upon and with respect to all parcels of land which
are outlined in green on Exhibit "E" hereto (herein collectively referred to as
the "Neighboring Parcels"). Landlord agrees that:
(i) Landlord shall, upon request of Tenant, enforce the
restrictions contained in the Declaration, including, without limitation, those
restrictions set forth in Paragraph 2 thereof, upon all of the Neighboring
Parcels, and shall not grant any variances from said restrictions without the
prior written consent of Tenant; and
(ii) The construction and use of the building contemplated by
this Lease is permitted and does not violate any of the covenants, restrictions
or provisions of the Declaration or any other recorded document affecting the
Leased Premises; and
(iii) Whenever in this Lease Tenant is granted any right or
privilege (including, without limitation, rights or privileges conditioned upon
Landlord's consent, which is not to be unreasonably withheld or delayed), which
right or privilege does or may conflict with any restriction in the Declaration,
Landlord shall, and does hereby, approve such variances and grant such consents
and approvals as may be required from Landlord, as grantee of the power to
enforce the covenants, restrictions and provisions of the Declaration, as may be
necessary or desirable in order to effectuate fully the terms and provisions of
this Lease.
DECLARATION OF PROTECTIVE RESTRICTIONS
XXXXXXXXX CREEK INDUSTRIAL PARK, INC., a Pennsylvania
corporation, hereinafter called "Xxxxxxxxx Creek", is the owner of land situate
in Uwchlan Township, Xxxxxxx County, Pennsylvania, bounded generally on the
West by the center line of Xxxxxx Drive (Pennsylvania Legislative Route 147,
Spur E), on the North by lands now or formerly of Xxxxxx X. Xxxxxx and the
Pennsylvania Turnpike Commission, on the East by lands now or formerly of Xxxxx
X. Xxxxx, Xx. and Xxxxxxx Xxxxx and Xxxxx Xxxx (Township Route 472), and on the
South by lands now or formerly of United Church of Xxxxxx and Xxxxxx X. Xxxxxxxx
and West Xxxxxxx-Pottstown Pike (Route #100), said land being all land owned by
Xxxxxxxxx Creek in Uwchlan Township lying East of the center line of Xxxxxx
Drive (being herein called the "Restricted Area") and part of the premises which
Xxx X. Xxxxxxx and Xxxxxxxxx X. Xxxxxxx, his wife, by Deed dated December 16,
1966 and recorded in the Office for the Recording of Deeds in and for Xxxxxxx
County, Pennsylvania, in Deed Book I-37, page 376 &c., granted and conveyed to
Xxxxxxxxx Creek.
Xxxxxxxxx Creek, for itself and its successors in title to
land in the Restricted Area, hereby declares that all land in the Restricted
Area shall be held subject to and with the benefit of the restrictions and
provisions set forth in this Declaration, it being the intent of this
Declaration that any and all grantees and their respective successors in title
to Xxxxxxxxx Creek to land in the Restricted Area shall, by acceptance of
conveyance land in the Restricted Area, hold their land, and that Xxxxxxxxx
Creek shall hold the land retained by it in the Restricted Area, subject to and
with the benefit of said restrictions and provisions, as covenants running with
the land and as equitable servitudes for the mutual benefit of such lands and
their owners in order to assure development of the Restricted Area as a Garden-
Type Industrial Center.
1. As used in this Instrument:
(a) "Plan-Approving Agent" means Xxxxxxxxx Creek and its
corporate successors until it and they cease to own of record any land in the
Restricted Area, and thereafter, if Xxxxxxxxx Creek, or its corporate
successors, has conveyed of record all land then owned by it in said Area by
conveyance containing an express grant to the grantee of rights to approve plans
and grant variations as hereinafter provided and a certificate that the grantee
either controls or is controlled by the grantor, Plan-Approving Agent shall mean
such grantee and successive grantees under like conveyances until such a grantee
ceases to own of record any land in the Restricted Area. After conveyance by
Xxxxxxxxx Creek or its corporate successors or such a grantee of all land in the
Restricted Area then owned by the grantor without such an express grant of
rights and certificate, then the Plan Approving Agent shall be such entity,
person or body of persons designated from time to time by the owners of the
majority of acreage in the Restricted Area by written instrument recorded in the
Office for the Recording of Deeds in and for Xxxxxxx County, Pennsylvania.
(b) "Site" means an area of land in the Restricted Area in
the same ownership, either shown as one lot on a recorded plan, or, if not so
shown, described as the site for one or more buildings by the owner in a
recorded instrument, whether or not in either case acquired at one time, or
previously so shown as more than one lot or also shown or described for the
purpose of lease, but not conveyance, as more than one lot.
(c) "Street" means any publicly maintained roadway, and any
private roadway maintained for service to two or more owners or sites.
-2-
(d) "Garden-Type Industrial Center" means, for the purposes
of this Declaration, an industrial development for uses permitted by the
applicable Zoning requirements of the public authorities as the same may exist
from time to time, having open areas, landscaping, exterior appearance and
parking and loading facilities conforming in overall effect to those provided by
the restrictions set forth in this Declaration.
2. Until December 31, 1999, and except as provided in
Paragraph 3 below, the Restricted Area shall be subject to restrictions as
follows:
(a) No building shall be located within seventy-five feet
of any Street.
(b) All loading and unloading facilities shall be located
on those sides of a building which does not face a street or to the rear of such
building.
(c) The exterior wall of each building which faces a street
shall be faced with brick and all other exterior walls shall be faced with brick
or stuccoed block, provided that any of such walls may be faced with other
durable material of equal or greater aesthetic and structural acceptability
which shall be subject to the prior written approval of the Plan Approving
Agent. Foundations, windows, doors, panels over windows and doors and trim shall
not be considered facing.
(d) Within seventy-five feet from any Street there shall be
located only green areas of grass, plants, shrubs and trees, and walks and
driveways necessary for access, necessary utility lines, directional signs and
parking areas.
(e) No business shall be conducted on any Site without
first providing facilities for parking, loading and unloading, reasonably
sufficient to service the business without using adjacent streets therefor.
-3-
(f) The exterior appearance of buildings and Sites shall
not be permitted to become unsightly and no open storage shall be permitted
unless the same shall be not detrimental to the appearance of a Garden-Type
Industrial Center and unless screened from view from Streets and adjoining land
by solid walls, solid fences or solid xxxxxx not less than 6 feet in height, the
plans for which are subject to approval in writing by the Plan Approving Agent.
(g) All signs, other than directional signs, shall be
erected on exterior building walls or on the roof of the building. All lettering
shall be "open" and shall not be more than 8 feet in height. Flashing signs
shall not be permitted.
(h) No site or building or other structure shall be used in
any manner which is detrimental or objectionable to a Garden-Type Industrial
Center by reason of noise, odor, vibration, smoke or hazardous operation.
(i) No building, exterior sign or structure shall be
erected or exterior structural alteration or addition made except pursuant to
plans approved in writing by the Plan-Approving Agent as to landscaping and
architectural conformity to a Garden-Type Industrial Center, which approval
shall not be unreasonably withheld.
3. The Plan-Approving Agent may from time to time by written
instrument grant variations from application of particular provisions of
Paragraph 2 above to particular buildings or Sites where in the opinion of the
Agent, as certified in the instrument, desirable relief can be granted without
substantial detriment to the development of the Restricted Area as a Garden-Type
Industrial Center and without substantial detriment to the portions thereof
theretofore built upon.
4. The restrictions and provisions set forth in this
Declaration shall run with the land, and the Plan-Approving Agent or other owner
of land within the Restricted Area may enforce the same.
-4-
5. Enforccment and remedy under this Declaration shall be only
by proceeding in equity to restrain violations. Any construction, other than
exterior signs, driveways, parking areas, grading and landscaping, completed for
more than three months shall be deemed to comply unless proceeding for
enforcement has theretofore been commenced and notice thereof recorded
appropriately to affect the record title to the land where the construction is.
Failure to enforce any restriction or provision of this Declaration shall not,
except as provided above in this paragraph, be deemed a waiver of the right to
do so thereafter as to the same breach or as to one occurring prior or
subsequent thereto. Invalidation by Judgment of Court of any one of said
restrictions or provisions or of any act done pursuant thereto shall in nowise
affect any other restriction or provision of this Declaration or act done
pursuant thereto as herein provided, which shall remain in full force and
effect. No owner shall be responsible except for violations occurring on his
land while owner.
6. Xxxxxxxxx Creek has not imposed, either expressly or
impliedly, the restrictions and provisions contained in this Declaration upon
other land owned by it outside of the perimeter of the Restricted Area, and said
other land shall not be subject to said restrictions and provisions and may be
conveyed free and clear thereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby
Xxxxxxxxx Creek has caused this Declaration to be duly executed this 5th day of
October, A.D. 1967.
(Corporate Seal) XXXXXXXXX CREEK INDUSTRIAL PARK, INC.
Attest: /s/ [Illegible] By: /s/ Xxxxxxx X. Xxxx
--------------------- ---------------------------------
Secretary President
-5-
Plans and Specifications
DRAWINGS
Drawing
No. Number Title Prepared By Date
--- ------- ----- ----------- ----
1. A-1 Grading & Site Develop- Xxxxxx X. Xxxxxx, 10/23/1978
ment Plan for Xxxxxxxxx Registered Surveyor, Last revised
Creek Industrial Park Brandamore Road, 9/10/1979
Xxxx 00 xxx 00 Xxxxxxxxxx, Xx. 00000
(K&C Inc. Job No. 74003)
2. A-2 Building No. 29, First Xxxxxx & Xxxx, Inc., 10/18/1979
& Second F1. Plan Builder, K & C., Inc.,
Engr. Dept. ("K&C, INC."),
drawn by M2v, Job No. 74003
3. X-0X Xxxxxxxx Xx. 00, 0xx X & X, Xxx., drawn by 10/8/1979
Xxxxx Xxxx Xxxx Xxxx X.X.X., Xxx Xx. 00000
& Details
4. X-0X Xxxxxxxx Xx. 00, 0xx X & X, Xxx., drawn by 10/8/1979
Floor Core Area Plan & P.G.S., Job No. 74003
Details
5. X-0 Xxxxxxxx Xx. 00, Xxxxx X & C, Inc., drawn by 10/18/1979
& Fourth F1. Plan M2, Job No. 74003
6. X-0X Xxxxxxxx Xx. 00, 0xx X & X, Xxx., drawn by 10/8/1979
Xxxxx Xxxx Xxxx Xxxx X.X.X., Xxx Xx. 00000
& Details
7. X-0X Xxxxxxxx Xx. 00, 0xx X & X, Xxx., drawn by 10/8/1979
& 5th Floor Core Area P.G.S., Job No. 74003
Plan & Details
EXHIBIT "D"
8. X-0 Xxxxxxxx Xx. 00, Xxxxx X & X, Xxx., drawn by 10/18/1979
& Penthouse Plan M2, Job No. 74003
9. A-4A Penthouse Floor (Prelim.) (No information) 10/19/1979
10. X-0 Xxxxxxxx Xx. 00, Xxxx X & X, Xxx., drawn by 10/3/1979
Section & Details D.C., Job No. 74003
11. X-0X Xxxxxxxx Xx. 00, Xxxxx X & X, Xxx., drawn by 10/26/1979
Section M2, Job No. 74003
12. A-6 Northeast Elevation (No information) 10/26/1979
13. X-0 Xxxxxxxx Xx. 00, X & X, Xxx., drawn by 10/26/1979
Foundation Plan M2, Job No. 74003
14. E-1 Electrical Contract No. 1, Xxxxxx Xxxxxx Associates, 4/15/1979
Xxxxxxxxx Place Electrical Consulting
Office Building, Engineers,
Lionville, Pa., 1382 Xxxxxxx Xxxxx Drive,
Xxxxxx & Xxxx, Inc., Wayne, Pa. 19087,
000 Xxxxxx Xxxx, drawn by 1-a.p.a.
Xxxxxxxxx, Xx. 00000
15. M-2 Plumbing Riser Diagram Xxxxx & Xxxxxxx, Inc., Con- Undated
& Fire Protection Riser sulting Engineers, 2420
Diagram, Xxxxxxxxx Xxxxxxxx Road, Suite 000,
Xxxxx Xxxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
Lionville, Pa. drawn by D.W.E., checked by
J.L.B., Project No. 2027
16. S-2 Xxxxxxxxx Place Xxxxxxxx & Xxxxx, drawn by 4/3/1979
Office Building, S.P.M., checked by C.C.,
Lionville, Pa., Project Xx. 0000
0xx & 0xx Xxx.
Xxxxxxx
Page 2
17. 1 Planting Plan K & C, Inc. - Xxxxxxxx Design 10/18/1979
Associates, Berwyn, Pa.
drawn by Xxxxxx, Job No. 29
18. 2 Details & Detail K & C, Inc. - Xxxxxxxx Design 10/18/1979
Plan "B" Associates, drawn by Xxxxxx,
Job No. 29
SPECIFICATIONS
1. Xxxxxxxxx Place Office Building, Lionville, Pennsylvania,
for Xxxxxx & Xxxx, Inc., 000 Xxxxxx Xxxx, Xxxxxxxxx, Xx. 00000, March 1979;
Xxxxxxxx & Xxxxx, Architects/Engineers/Planners, 0000 Xxxx 000 Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxx 00000; Xxxxx & Xxxxxxx, Mechanical/Electrical Engineers, 0000
Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000; Xxxxxx & Xxxx, Inc., Building No.
29, Project No. 2027. Landlord and Tenant have initialed each page of the
approved copy of these specifications.
2. Building No. 29, Interior Finishes (a copy of this item is
attached to this Exhibit).
SUBMISSION OF PLANS BY TENANT
Tenant shall, on or before February 1, 1980 submit to Landlord
architectural plans (hereinafter referred to as "Tenant's Plans") covering the
layout of the interior partitions in the building in order to permit Landlord to
perform the interior finishing of the building. If Tenant's Plans shall deviate
from the plans and specifications listed in this Exhibit "D", or, in the opinion
of Landlord, Tenant would be, under the terms of this Lease, obligated to make
any payment to Landlord by reason of the performance by Landlord of construction
in accordance with Tenant's Plans, Landlord shall give Tenant written notice of
such fact within twenty (20) days after receipt of Tenant's Plans. If Tenant's
Plans do, in fact, under the terms hereof, provide for any such deviation, or
for construction which would give rise to an obligation by Tenant to make such a
payment to Landlord, Tenant's Plans, shall, to that extent, thereupon, for the
purposes of this Lease, be treated as a Change Order, and Landlord and Tenant
shall have all of their respective rights and obligations in connection
therewith as are set forth in Addendum #3 to this Lease, including, without
limitation, the obligation of Landlord to give notice of any Cost Increase in
connection therewith as set forth in paragraph (a) (3) thereof, and to obtain
bids, in connection therewith, as set forth in paragraph (a) (2) thereof. If
Tenant shall fail to submit Tenant's Plans timely, then subject to paragraph (f)
of Addendum #3 the Scheduled Occupancy Date shall be postponed for a period of
time equal to the length of such delay by Tenant. Such postponement shall be the
sole remedy of Landlord in the event of such a delay by Tenant.
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is entered into this 14th day of
November, 1979, by and between XXXXXXXXX PLACE, A LIMITED PARTNERSHIP, a
limited partnership organized and existing under the laws of the Commonwealth of
Pennsylvania (sometimes herein referred to as "Landlord") and CHEMICAL XXXXXX
CORP., a Pennsylvania corporation (sometimes herein referred to as "Tenant").
1. The name of the lessor is Xxxxxxxxx Place, A Limited
Partnership, a Pennsylvania limited partnership.
2. The name of the lessee is Chemical Xxxxxx Corp., a
Pennsylvania corporation.
3. The address of the lessor, as set forth in the Lease, is
000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
4. The address of the lessee, as set forth in the Lease, is
(i) until commencement of the term, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, and (ii) at the demised premises, 000 Xxxxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000.
4. The date of the Lease is the same as the date of this
Memorandum of Lease.
5. The demised premises are described in Exhibit "A" attached
hereto.
6. The provisions of the Lease pursuant to which the date of
commencement of the term is fixed are set forth in Exhibit "B" attached hereto.
7. The initial term of the Lease is for 20 years, terminating
at midnight of the last day of the calendar month in which the twentieth
anniversary of the commencement date occurs.
If neither party gives notice of termination, as provided in the Lease, the
terms continues thereafter for a further period of one year and so on from year
to year until terminated by notice from either party to the other at least 180
days before expiration of the then current term.
8. The lessee has one optional renewal period of ten years,
the expiration of which shall occur on the last day of the calendar month in
which the thirtieth anniversary of the commencement date occurs.
9. The lessee has a right of first refusal to purchase the
demised premises throughout the term of the Lease, which right continues until
expiration of the term as the same may be extended.
10. The Lease grants to the lessee certain rights with respect
to certain parcels of land adjacent to the demised premises as follows:
ADDENDUM #4 - ENFORCEMENT OF DECLARATION OF
PROTECTIVE RESTRICTIONS
Landlord and Tenant acknowledge that the Leased Premises,
together with certain other parcels of land forming Xxxxxxxxx Creek Industrial
Park, are subject to certain restrictions and other provisions set forth in a
certain Declaration of Protective Restrictions, recorded in the Office of the
Recorder of Deeds in and for Xxxxxxx County, in Deed Book 175, Page 946, a copy
of which is attached to this Lease as Exhibit "B" (the "Declaration"). Landlord
represents and warrants that, as of the date of execution hereof, Landlord has
the right and power to enforce the covenants, restrictions and other provisions
contained in the Declaration upon and with respect to all parcels of land which
are outlined in green on Exhibit "E" hereto (herein collectively referred to as
the "Neighboring Parcels"). Landlord agrees that:
(i) Landlord shall, upon request of Tenant, enforce the
restrictions contained in the Declaration, including, without limitation, those
restrictions set forth in Paragraph 2 thereof, upon all of the Neighboring
Parcels, and shall not grant any variances from said restrictions without the
prior written consent of Tenant; and
-2-
(ii) The construction and use of the building contemplated by
this Lease is permitted and does not violate any of the covenants, restrictions
or provisions of the Declaration or any other recorded document affecting the
Leased Premises; and
(iii) Whenever in this Lease Tenant is granted any right or
privilege (including, without limitation, rights or privileges conditioned upon
Landlord's consent, which is not to be unreasonably withheld or delayed), which
right or privilege does or may conflict with any restriction in the Declaration,
Landlord shall, and does hereby, approve such variances and grant such consents
and approvals as may be required from Landlord, as grantee of the power to
enforce the covenants, restrictions and provisions of the Declaration, as may be
necessary or desirable in order to effectuate fully the terms and provisions of
this Lease.
11. *
IN WITNESS WHEREOF, the parties hereto have hereunto
set their hands and seals the day and year first above written.
XXXXXXXXX PLACE, A LIMITED PARTNERSHIP,
By its sole General Partner,
XXXXXXXXX CREEK INDUSTRIAL PARK, INC
General Partner
Attest:
/s/ [Illegible] By: /s/ Xxxxxxx X. Xxxx
----------------------------------- ---------------------------------
President
CHEMICAL XXXXXX CORP.
Attest:
/s/ X.X. Xxxxxx, Xx. By: /s/ X.X. Xxxxxx
------------------------------------ ---------------------------------
* This Memorandum of Lease is intended for recording purposes only and does
not supercede, diminish, add to or change the terms of the Lease.
-3-
1(b). Term. The term of the Lease shall commence upon either
(i) the tenth day following the date on which the Leased Premises are Ready for
Occupancy, determined as set forth in paragraphs (a) and (d) of Addendum #3
hereto, or (ii) the date on which the Leased Premises are occupied by the
Tenant, whichever first occurs, and shall continue for twenty (20) years,
terminating at midnight of the last day of the calendar month in which the
twentieth (20th) anniversary of the commencement date occurs.
1(c). Promptly after the date of execution hereof (or, in the case
of applications dependent upon construction of the building, as soon as such
applications are permissible), Landlord shall apply for, and use its best
efforts to obtain in final and unappeal form, all such zoning, subdivision,
building, Department of Environmental Resource and other federal, state and
local governmental permits and licenses as may be required for lawful
construction of the building (as defined in paragraph (a) of Addendum #1 hereto)
and for Tenant's lawful use and occupancy of the Leased Premises as a corporate
headquarters and office building, including,, without limitation, a final
certificate of occupancy from Uwchlan Township and all required approvals from
the Department of Labor and Industry in Harrisburg.
Addendum #3
(A)(1) For the purposes of this Addendum and paragraph (b) of
Section 1 of this Lease, but subject to paragraph (d) of this Addendum, the
building shall be considered Ready for Occupancy when (1) the construction has
been substantially completed, not withstanding that certain "touch-ups" or
"adjustments" may be required for full completion provided that (i) neither the
failure of completion nor the act of completion shall interfere with Tenant's
use or enjoyment of the Leased Premises or any rights of Tenant under this
Lease, which determination shall be made solely by the Tenant as it applies, to
the Plans and Specifications, and (ii) Landlord shall diligently complete any
such touch-ups or adjustments upon receiving notice thereof (2) Landlord shall
have obtained and delivered to Tenant all such final and unappealable
governmental permits and licenses as Landlord is obligated to obtain pursuant to
paragraph (1) of Section 1(c)) of this Lease; and (3) Tenant shall have received
written notice from Landlord that Landlord deems the building to have been
substantially completed in accordance herewith.
(2) For the purposes of the preceding paragraph (1), Landlord
and Tenant agree that in no event shall the Leased Premises be deemed to be
substantially completed, until:
(a) all ceilings and lighting are in and operative;
(b) all walls and partitions have been erected, with
all doors and hardware installed, and have received final painting or wall
covering;
(c) all flooring has been installed, cleaned, and
buffed;
EXHIBIT "B"
Page 1 of 2
(d) all elevators, heating, air conditioning,
plumbing and electrical systems have been installed and are in good working
condition; and
(e) debris caused by Landlord's trades, and others
have been removed and the Leased Premises are clean.
(3) If Tenant shall disagree with Landlord's notice stating
that construction of the building has been substantially completed, or upon the
items (or the cost thereof) to appear on the Punchlist, Tenant shall give
Landlord written notice of such disagreement within ten (10) days after actual
receipt of such notice and the Punchlist. Such disagreement(s) shall thereupon
be determined by submission to Xxxx Xxxxxxx, whose address is P. X. Xxx 000,
Xxxxxxxxxx, Xx. 00000 ("Restall") in a proceeding to be conducted on the Leased
Premises on such business day and such business hour within ten (10) business
days after the date of Tenant's notice of disagreement, as Tenant may specify in
such notice. In such proceeding, Landlord and Tenant shall, in the presence of
each other and Restall, each have a full and fair opportunity to present
evidence sustaining their respective positions. The decision of Restall in any
such dispute shall be final, conclusive and binding upon the parties and not
subject to appeal. The cost of any such proceeding shall be shared equally by
Landlord and Tenant. In the event Tenant shall dispute the date of substantial
completion, commencement of the term hereof and Tenant's rental and other
obligations hereunder shall be suspended until determination of such dispute and
Tenant shall not be deemed to be in default hereunder by reason of
non-performance of such obligations. Upon such determination, the date of
substantial completion, as determined by Restall, shall control for purposes of
determining when the Leased Premises are Ready for Occupancy and the date of the
commencement of the term.
EXHIBIT "B"
Page 2 of 2
[MAP OF PICKERING INDUSTRIAL PARK]
PICKERING INDUSTRIAL PARK
LIONVILLE, PENNA.
UWCHLAN TWP. XXXXXXX CO., NOV. 16, 1997
EXHIBIT "E"
Park -- Outlined in Red. The Park includes all areas outlined in red except
those parcels owned by the occupants of the buildings marked with
an "X".
Neighboring Parcels -- Outlined in Green.
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF :
On this, the 14th day of November, 1979, before me, the
subscriber, a notary public in and for the Commonwealth of Pennsylvania,
personally appeared X. X. Xxxxxx, who acknowledged himself to be the Chairman of
the Board of CHEMICAL XXXXXX CORP., a corporation, and that he, as such Chairman
of the Board being authorized to do so, executed the foregoing Memorandum of
Lease for the purposes therein contained by signing the name of the corporation
by himself as Chairman of the Board.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ XXXXXXX X. XXXXX
----------------------------------
Notary Public
My Commission Expires: 8/30/80
(Notarial Seal)
NOTARY PUBLIC
XXXXXXX COUNTY, DOWNINGTOWN, PA
My Commission Expires August 30, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXX :
: SS.
COUNTY OF :
On this, the 14th day of November, 1979 before me, the
subscriber, a notary public in and for the Commonwealth of Pennsylvania,
personally appeared Xxxxxxx X. Xxxx who acknowledged himself to be the President
of XXXXXXXXX CREEK INDUSTRIAL PARK, INC., a corporation and sole general partner
of Xxxxxxxxx Place, A Limited Partnership, a limited partnership, organized and
existing under the laws of the Commonwealth of Pennsylvania, and that he, as
such President, executed the foregoing Memorandum of Lease for the partnership
for the purposes therein contained by signing the name of the corporation by
himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ XXXXXXX X. XXXXX
----------------------------------
Notary Public
My Commission Expires: 8/30/80
(Notarial Seal)
NOTARY PUBLIC
XXXXXXX COUNTY, DOWNINGTOWN, PA
My Commission Expires August 30, 1980
