LEASE
THIS LEASE made as of this 31st day of December 1996 by and between
ROCKWOOD ASSET MANAGEMENT, INC., a Pennsylvania corporation having its principal
place of business at 000 Xxxxx 00, Xxxxxxx, Xxxxxxxxxxxx 00000 ("Lessor"), and
ROCKWOOD CASUALTY INSURANCE COMPANY, a Pennsylvania insurance corporation having
its principal place of business at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx
("Lessee").
WHEREAS, Lessor and Lessee are parties to a certain Lease dated as of July
1, 1994 (the "1994 Lease") for those certain premises situate in the Borough of
Rockwood, County of Somerset, Commonwealth of Pennsylvania, more particularly
intended to be described on Exhibit "A" attached hereto and made a part hereof,
and commonly known as 000 Xxxx Xxxxxx and 000 Xxxx Xxxxxx, respectively (the
"Premises"), and subject to the exceptions to title set forth on Exhibit "B"
attached hereto and made a part hereof. It is intended by this Lease to include
within the term Premises all of the lands and improvements presently owned by
Lessee in the Borough of Rockwood, County of Somerset, Commonwealth of
Pennsylvania whether or not included or described on Exhibit "A".
WHEREAS, Lessor and Lessee desire to terminate the 1994 Lease and enter
into a new lease for the Premises.
NOW, THEREFORE, in consideration of the premises contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lessor and Lessee do hereby agree as follows:
WITNESSETH
1. PREMISES. The 1994 Lease is hereby terminated and of no further force and
effect except as otherwise provided therein, and Lessor hereby leases to Lessee
and Lessee hereby leases from Lessor the Premises. The Premises includes all
fixtures, improvements, additional and other property affixed thereto at the
commencement of, or at any time during, the term of this Lease, together with
the appurtenant non-exclusive right to the use of all rights-of-way, easements
and of all areas for parking available for the Premises.
2. TERM. The term of this Lease shall be for a period of Fifteen (15) years.
The term of this Lease and Lessee's obligation to pay rent hereunder shall
commence at 12:01 a.m. on January 1, 1997 (the
"Commencement Date") and shall end at midnight on December 31, 2011 unless
sooner terminated as hereinafter provided.
The term "Lease Year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first Lease Year shall begin on the
Commencement Date.
3. RENT.
A. Lessee agrees to pay to Lessor at the office of Lessor, or at such other
place designated by Lessor, in advance, without any prior demand therefor, as
fixed minimum rent the rent set forth on Schedule A attached hereto and made a
part hereof payable in equal monthly installments on the first day of each
calendar month of the applicable Lease Year, commencing on the Commencement Date
("Rent").
B. Lessee hereby covenants and agrees to pay the Rent hereby reserved as
and when due, and also all sums of money, charges or other amounts to be paid by
Lessee to Lessor or to another person under this Lease which shall be deemed to
be included in the definition of "Rent" for purposes hereof. Lessee hereby
covenants and agrees that all such Rent shall be paid without abatement,
diminution, reduction, deduction or setoff. Nonpayment of such additional rent
when due shall constitute a default under this Lease to the same extent and
shall entitle Lessor to the same remedies as nonpayment of fixed minimum rent.
The covenant of Lessee to pay Rent is independent of any other term, covenant or
condition of this Lease.
4. OPERATING EXPENSES. It is the intention of Lessor and Lessee that Lessee
shall be responsible for the payment of all Operating Expenses (as hereinafter
defined) and that Lessor shall be indemnified by Lessee against all such
Operating Expenses. "Operating Expenses" shall include all costs, expenses and
obligations of every kind relating directly or indirectly in any way, foreseen
and unforeseen, ordinary and extraordinary, to Lessee's use, occupancy and
possession of the Premises, which may arise or become due during the term hereof
and any renewal term or extension. Nothing hereinabove contained shall require
Lessee to pay sums owing under Lessor's mortgage or mortgages, any corporate
franchise tax, any estate, inheritance, succession, capital levy, stamp levy,
stamp tax or transfer tax of Lessor (except as otherwise provided in Paragraph
14 hereof) or any income tax, excess profits or revenue tax or any other tax,
assessment, charge or levy based on or measured by the net income (except as set
forth in the next sentence of this Paragraph 4) or capital stock of Lessor, if
applicable; provided, however, that if at any time during the term hereof or any
renewal or extension thereof an occupancy or excise tax on rents is levied or
assessed against Lessor on the net rental, in lieu of, in whole or in part, any
real estate taxes, governmental impositions or assessments, then Lessee
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shall pay the same. However, "Operating Expenses" shall include any real
property taxes and personal property taxes, charges and assessments which are
levied, assessed upon or imposed by any governmental authority during any
calendar year of the term hereof with respect to the Premises and the land on
which the Premises is located and any improvements, fixtures, and equipment and
all other property of Lessor, real or personal, located in the Premises and used
in connection with the operation of the Premises and any tax which shall be
levied or assessed in lieu of such real or personal property taxes (including,
without limitation, any municipal income tax other than the aforesaid municipal
income tax), and any license fees, tax measured by or imposed upon rents (except
to the extent such license fee or tax is in lieu of or as part of any income
tax), or other tax or charge upon Lessor's business of leasing the Premises.
Payment of such taxes, charges and assessments shall be made before any fine,
penalty, interest or cost may be added thereto for the non-payment thereof;
provided, however, that if by law, any such tax, charge or assessment may be
paid in installments, whether or not interest shall accrue on the unpaid
balance, Lessee may pay the same and any accrued interest on the unpaid balance
in installments as the same respectively become due and payable and before any
fine, penalty, interest or cost may be added thereto for the non-payment of any
such installment and interest. Lessee covenants and agrees to furnish to Lessor
within ten (10) days after the date when any tax, charge or assessment is due
official receipts of the appropriate taxing authority or other evidence
satisfactory to Lessor evidencing payment thereof. Provided, further, that any
tax, charge or assessment relating to a fiscal period of the taxing authority, a
portion of which is included within the term of this Lease and a portion of
which is included in a period of time prior to the Commencement Date or after
the expiration of the term of this Lease or any extension thereof (for reasons
other than Lessee's default hereunder), shall be adjusted between Lessor and
Lessee as of the Commencement Date or such expiration date. Prior to the
expiration of the term of this lease or any extension thereof, Lessor shall xxxx
Lessee for its pro rata share of the taxes, charges and assessments based upon
the overlap of the last year of the Lease and the fiscal period of the taxing
authorities. Such pro rata billing shall be based upon the taxes, charges and
assessments for the previous fiscal year; provided, however, that if the taxes,
charges and assessments for the last fiscal year of the taxing authorities into
which the term of this Lease extends shall vary from those of the previous such
fiscal year, Lessee and Lessor shall make a final adjustment at the end of the
last such fiscal year based upon the taxes, charges and assessments actually
paid by Lessor, and any such liability of Lessor or Lessee for any such
adjustment shall specifically survive the termination of this Lease.
5. REPAIRS. Throughout the term of this Lease and any renewal or extension
hereof, Lessee, at Lessee's expense, shall keep and maintain the Premises in
good order and condition, and make all
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necessary repairs thereto, interior and exterior, structural and non-structural,
ordinary and extraordinary, foreseen and unforeseen, necessary or desirable to
maintain said condition, the foundations, exterior walls, structural condition
of interior bearing walls and roof of the Premises, as well as the parking lots,
walkways, driveways, landscaping, fences, signs and utility installations.
Nothing contained herein shall be construed to exclude any expense from the
definition of Operating Expense. Lessor shall not be required to furnish any
services or facilities or to make any repairs or alterations in or to the
Premises. Lessee hereby assumes the full and sole responsibility for the
condition, operation, repair, replacement, maintenance and management of the
Premises and upon termination of this Lease shall return the Premises to Lessor
in the condition prescribed in Paragraph 15 below.
6. UTILITIES. At all times during the term of this Lease and all renewals or
extensions hereof, Lessee shall pay the cost of all utilities serving the
Premises, including electric, steam, water, sewer, gas, oil, telephone, hot
water and every other utility of every nature and description. In no event shall
Lessor be liable for any interruption or failure of utility service to the
Premises.
7. INSURANCE. Lessee shall, at all times during the term of this Lease and all
renewals or extensions hereof, at its sole cost and expense, obtain and maintain
in full force and effect insurance on the Premises of the following types:
A. All risk property coverage and other insurance covering the Premises
against loss or damage by fire and such other risks as are normally insurable
under the standard form of fire insurance with a broad form extended coverage
endorsement, including malicious mischief and vandalism, in an amount, at all
times, not less than one hundred (100) percent of the cost of replacement of all
improvements and betterments to the Premises.
B. Comprehensive liability insurance covering the legal liability of Lessor
and Lessee against claims for bodily injury or death, occurring on, in or about
the Premises in the minimum amount of One Million ($1,000,000.00) Dollars per
occurrence for bodily injury and property damage liability, plus umbrella or
excess insurance coverage of an additional amount of not less than Four Million
($4,000,000.00) Dollars;
C. Lessee shall comply with all applicable Pennsylvania worker's
compensation laws, and shall maintain such insurance if and to the extent
necessary for such compliance;
D. All insurance provided for in this Lease shall be in effect under valid
and enforceable policies issued by insurers of recognized responsibility which
are licensed to do business in the Commonwealth of Pennsylvania and which have
been reasonably
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approved in writing by Lessor as to the qualifications of insurers and the
amounts of insurance to be written by each. Lessee shall promptly pay all
premiums due on all such insurance and shall take all steps necessary or
appropriate to maintain in full force and effect all such policies during the
term of this Lease and all renewals or extensions hereof. Except as herein
otherwise provided, all insurance maintained by Lessee pursuant to this Lease
shall, except for worker's compensation insurance, name Lessor and Lessee as
insureds. Except as otherwise provided in any mortgage on the Premises, all
insurance policies shall provide that (a) Lessee shall have full, complete and
exclusive authority to adjust all losses thereunder and collect all proceeds
related thereto, and Lessor agrees to be bound by all adjustments made by Lessee
and to cooperate with Lessee in making such adjustments; (b) the insurer thereof
waives all rights of subrogation against Lessor, any successor to Lessor's
interest in the Premises, and any mortgagee or assignee of Lessor's interest in
the Premises; (c) ten (10) days prior written notice of cancellation,
modification or amendment thereof shall be given to Lessor and any mortgagee or
assignee thereof. Lessor shall immediately endorse and turn over to Lessee upon
Lessor's receipt thereof any checks or other negotiable instruments or other
payment representing insurance proceeds paid by the insurance company in respect
to any claim. No such policy shall contain any provision relieving the insurer
thereof of any liability for any loss by reason of the existence of other
policies of insurance covering the Premises against the peril involved or be
invalidated by foreclosure or other proceedings or notices thereof relating to
the Premises or any interest therein or by any change in the title of ownership
of the Premises or any interest therein. Prior to the commencement of the term
of this Lease and thereafter not less than ten (10) days prior to the expiration
dates of the expiring policies theretofore furnished pursuant to this Lease,
originals of the policies, or certificates thereof in the case of bodily injury,
bearing notations evidencing the payment of premiums, or accompanied by other
evidence of such payment, shall be delivered by Lessee to Lessor.
8. LATE PAYMENT. If Lessee shall fail to pay any installment of Rent (whether
minimum rent or additional rent) within fifteen (15) days from the date when
due, or any other amount due hereunder within fifteen (15) days after written
notice from Lessor, Lessee shall pay to Lessor, in addition to the amount of
such installment, an amount equal to five (5) percent of the amount of such
installment.
9. USE OF PREMISES. Lessee may use and occupy the Premises for the sole
purpose of the operation and maintenance of a casualty insurance business and
for no other purpose or business without the consent of Lessor, which consent
shall not be unreasonably withheld or delayed but Lessee shall not move any of
its insurance operations from Somerset County, Pennsylvania prior to June 30,
2001. Lessee shall, at Lessee's sole cost and expense, comply with all
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applicable laws, ordinances, rules and regulations of governmental authorities
relating to the use or occupancy of the Premises, and including those laws,
ordinances, rules and regulations which require the making of any structural,
unforeseen or extraordinary changes. Lessee shall bear the expense of said
increased insurance rates and any special installations as may be required at
the expense of Lessee. Lessee shall obtain, keep in force and comply with any
governmental license or permit for the proper and lawful occupancy of the
Premises by Lessee.
10. ALTERATIONS. Lessee shall make no structural alterations, additions or
improvements to the Premises without the prior written consent of Lessor, which
consent shall not be unreasonably withheld. Non-structural alterations,
additions or improvements shall not require the consent of Lessor. No
alteration, addition or improvements shall be undertaken until Lessee shall have
procured and paid for, so far as the same may be required from time to time, all
permits and authorizations of any federal, state or municipal government or
departments or subdivisions of any of them having jurisdiction. All alterations,
additions or improvements shall become a part of the Premises when made and
shall remain upon and be surrendered with the Premises at the end of the term.
Notwithstanding the foregoing, prior to expiration or earlier termination of the
Lease, Lessee may, but shall have no obligation to, remove any such alterations,
additions or improvements and in such event of removal, Lessee shall repair any
damage occasioned by such removal and in default thereof Lessor may effect said
repairs at Lessee's reasonable expense.
11. MECHANICS' LIENS. Prior to Lessee performing any construction or other work
on or about the Premises for which a lien could be filed against the Premises,
Lessee shall enter into a written "no lien" agreement with the contractor who is
to perform such work, and such written agreement shall be filed and recorded in
accordance with the Mechanics' Lien Law of Pennsylvania, prior to the
commencement of such work. If any mechanics' or other lien shall be filed
against the Premises purporting to be for labor or material furnished or to be
furnished at the request of Lessee, then Lessee shall, at its expense, cause
such lien to be discharged of record by payment, bond or otherwise, within
thirty (30) days after the filing thereof. If Lessee shall fail to cause such
lien to be discharged of record within such period, Lessor may cause such lien
to be discharged by payment, bond or otherwise, without investigation as to the
validity thereof or as to any offsets or defenses thereto, and Lessee shall,
upon demand, reimburse Lessor for all amounts paid and costs incurred including
attorney's fees, in having such lien discharged of record.
12. ASSIGNMENT AND SUBLETTING. Lessee may, at any time and from time to time,
assign or transfer this Lease or sublet all or any part of Premises with
Lessor's prior written consent, which consent shall not be unreasonably withheld
or delayed. Any assignee shall
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assume, and be deemed to have assumed, this Lease and be and remain liable
jointly and severally with Lessee for all payments and for the due performance
of all terms, covenants and conditions herein contained on Lessee's part to be
paid and performed from and after the date of such assignment. No assignment
shall be binding upon Lessor unless the assignee shall deliver to Lessor an
instrument in recordable form containing a covenant of said assumption by the
assignee, but the failure or refusal of assignee to execute the same shall not
release assignee from its liability as set forth herein. Lessee shall not
mortgage or encumber its interest in this Lease.
Any consent by Lessor shall not constitute a waiver of strict future compliance
by Lessee of the provisions of this Paragraph 12 or a release of Lessee from the
full performance by it of the covenants on its part herein contained.
13. ACCESS TO PREMISES. Lessor, its employees and agents shall have the right
to enter the Premises upon reasonable notice and during reasonable business
hours for the purpose of examining or inspecting the same, showing the same to
prospective purchasers or, in the event of a default by Lessee and after the
applicable cure period, to prospective tenants of the Premises, or mortgagees,
and following default by Lessee and the expiration of the applicable cure
period, making such alterations, repairs, improvements or additions to the
Premises as Lessor may reasonably deem necessary or desirable; provided,
however, that nothing contained herein shall be deemed or construed to create an
obligation on the Lessor to make any such alterations, repairs, improvements or
additions. If representatives of Lessee shall not be present to open and permit
entry into the Premises at any time when such entry by Lessor is necessary or
permitted hereunder, Lessor may enter by means of a master key (or forcibly in
the event of an emergency) without liability to Lessee and without such entry
constituting an eviction of Lessee or termination of this Lease.
14. OPTION TO PURCHASE AND RIGHT TO REQUIRE PURCHASE.
A. Lessee shall have the option exercisable at any time during the term of
this Lease and within sixty (60) days after the expiration or earlier
termination of this Lease, whether for default or otherwise, to purchase the
Premises at the scheduled price as set forth on Exhibit "C" attached hereto and
made a part hereof, which price shall change from time to time and shall be
equal to Two Million Five Hundred Thousand ($2,500,000.00) Dollars on the
fifteenth anniversary of the Commencement Date. Lessee may exercise such option
to purchase only if it is not in default of its monetary obligations under this
Lease or, if it is in monetary default, only after it has cured such default. In
the event that Lessee has not exercised such purchase option, Lessor shall have
the right to require that Lessee purchase the Premises on the
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fifteenth anniversary of the Commencement Date for the sum of Two Million Five
Hundred Thousand ($2,500,000.00) Dollars.
B. Upon the exercise by the Lessee of the option to purchase the Premises,
or upon the exercise by the Lessor of its right to have the Lessee purchase the
Premises, the following shall occur:
(i) the Lessor and Lessee shall proceed to a closing (the "Closing")
to occur within twenty (20) days after the date of such exercise;
(ii) each party shall bear its own costs in connection with the
Closing; provided, however, that transfer taxes shall be borne by the
Lessee; and
(iii) Lessor shall convey marketable title to the Premises by a
Special Warranty Deed, subject only to exceptions to title as set forth on
Exhibit "B" attached hereto and made a part hereof, and such other
exceptions to title which arose during the term hereof as a matter of law
prior to the Closing and to which Lessee has given its prior written
consent (which may be withheld in Lessee's sole determination) or were
created by Lessee.
C. Upon the vesting of title to the Premises in Lessee in accordance with
this Paragraph 14, this Lease shall, at Lessee's option, terminate. In the event
of such termination of this Lease, all rent paid in advance shall be apportioned
as of the date of such termination.
D. If either Lessor or Lessee shall default in its obligation to convey (in
the case of Lessor) or to acquire (in the case of Lessee) title to the Premises,
the other party shall be entitled to damages and the right to compel specific
performance of the covenants in this Paragraph 14.
15. SURRENDER OF PREMISES. At the end of the term of this Lease, and in the
event that Lessee has not elected to purchase the Premises and Lessor has not
elected to require such purchase, as set forth in Paragraph 14, Lessee shall
surrender the Premises to Lessor, together with all alterations, additions and
improvements thereto (to the extent the same are accepted by Lessor), in broom
clean condition and in working order and repair except for ordinary wear and
tear and damage by fire and other casualty excepted. If Lessee is not then in
monetary default under any of the terms hereof, Lessee shall have the right at
the end of the term hereof to remove any equipment, furniture, trade fixtures or
other personal property placed in the Premises by Lessee, provided that Lessee
promptly repairs any damage to the Premises caused by such removal. Lessee shall
surrender the Premises to Lessor at the end of the term hereof, without notice
of any kind, and Lessee waives all right to any such notice as may be provided
under any laws now or hereafter in effect in Pennsylvania, including The
Landlord and
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Tenant Act of 1951, 68 P.S. ss. 250.101 et seq. If Lessee shall fail to remove
any of its equipment, furniture, trade fixtures or other personal property, the
same shall be deemed abandoned and Lessor may remove and store the same at the
expense of Lessor or sell the same on behalf of Lessee at public or private sale
in such manner as is commercially reasonable with any proceeds thereof to be
first applied to the costs and expenses including attorneys' fees of the storage
and sale and the payment of any amounts owed hereunder by Lessee.
16. INDEMNIFICATION. Notwithstanding any provision to the contrary contained in
this Lease, Lessee shall indemnify and save harmless Lessor from and against all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees, which may be imposed upon or
incurred by or asserted against Lessor by reason of any of the following
occurring during the term of this Lease (except to the extent caused by acts of
the Lessor occurring following the date hereof):
(i) Any work or thing done in, on or about the Premises or any part
thereof;
(ii) Any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Premises or any part thereof or any
street, avenue, alley, sidewalk, curb, passageway, entrance or space
adjacent thereto;
(iii) Any negligence on the part of Lessee or any of its agents,
contractors, servants, employees, licensees or invitees;
(iv) Any accident, injury or damage to any person or property
occurring in, on or about the Premises or any part thereof or any street,
avenue, alley, sidewalk, curb, passageway, entrance or space adjacent
thereto;
(v) Any failure on the part of Lessee to keep, observe and perform any
of the terms, covenants, agreements, provisions, conditions or limitations
contained in this Lease on Lessee's part to be kept, observed and
performed;
(vi) The termination of this Lease by reason of the occurrence of an
event of default as defined in Paragraph 22, below; or
(vii) Any tax attributable to the execution, delivery or recording of
this Lease, or any amendment thereof.
In case any action or proceeding is brought against Lessor by reason of any
such claim, Lessee upon written notice from Lessor shall, at Lessee's sole cost
and expense, including attorneys' fees, resist or defend such action or
proceeding by counsel approved by Lessor in writing, such approval not to be
unreasonably
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withheld, but no approval of counsel shall be required in each and every
instance where the claim is resisted or defended by counsel of an insurance
carrier obligated so to resist or defend such claim.
17. FIRE OR OTHER CASUALTY. In case of damage to the Premises by fire or other
casualty, Lessee shall give prompt notice to Lessor, and following the
settlement of the insurance claim Lessee shall cause the damage to be repaired
with reasonable promptness. Lessor shall have no obligation to repair or
rebuild. Regardless of whether the Premises are rendered untenantable, the rent
shall not be abated. In the event the damage to the Premises shall be extensive
and substantial, Lessee may elect not to repair or rebuild. Lessee shall notify
Lessor in writing of Lessee's decision not to repair or rebuild within sixty
days from the date of such damage and this Lease shall, at Lessee's option,
terminate as of the date of such notice, with the same effect as if such date
were the date herein fixed as the expiration date of this Lease; provided,
however, that upon such termination Lessee shall be responsible for payment to
Lessor of the scheduled price, as set forth on Exhibit "C" attached hereto and
made a part hereof, as of the date closest to such termination date, less any
insurance proceeds received by Lessor with respect to the Premises and not paid
over to Lessee, and Lessee shall receive from Lessor a special warranty deed to
the Premises in exchange for such payment of the scheduled price (and the
Closing of title shall be governed by the provisions of Paragraph 14 above as if
Lessee had exercised its option to purchase).
Lessor will not carry insurance of any kind on any of Lessee's furniture or
furnishings or on any fixtures, equipment, other improvements, property or
appurtenances of Lessee under this Lease and Lessor shall not be obligated to
repair any damage thereto or to replace the same.
18. WAIVER OF SUBROGATION. Lessor and Lessee do each hereby release and relieve
the other, their agents or employees from responsibility for and waive any claim
of recovery for (a) any loss or damage to the real or personal property of
either located anywhere in the Premises, including the Premises itself, arising
out of or incidental to the occurrence of any of the perils which may be covered
by their respective fire insurance policies, with extended-coverage
endorsements, or (b) loss resulting from business interruption at the Premises
or loss of rental income from the Premises, arising out of or incidental to the
occurrence of any of the perils which may be covered by the business
interruption insurance policy and by the loss of rental income insurance policy
held by Lessor or Lessee. Any insurance policy shall expressly permit such a
release or contain a waiver of any rights of such insurer against Lessor and
Lessee and such other persons. Nothing contained herein shall be interpreted or
construed to require Lessor to maintain any insurance.
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19. SUBORDINATION NON-DISTURBANCE AND ATTORNMENT. Lessee accepts this Lease
subject and subordinate only to any first mortgage or mortgages held by an
institution (including, without limitation, the notes or other obligations
secured thereby and any and all renewals, modifications, consolidations,
replacements or extensions of any such mortgages or the notes or other
obligations secured thereby) now in existence or hereinafter made from time to
time, placed upon or affecting the Premises; provided upon the condition that
the holder thereof executes a Non Disturbance Agreement which shall be on the
form customarily used by the institutional holder of the mortgage and reasonably
acceptable to Lessee and in substance confirms in writing the terms and
conditions of this Lease and the rights of Lessee herein, including, but without
limitation, the disposition of insurance proceeds to Lessee. Lessee shall
execute, acknowledge and deliver to the holder of any such mortgage or to any of
the parties to such instruments, at any time upon demand by such holder or by
any such party, and releases, certificates or other documents that may be
reasonably required by such holder or by any such party, for the purpose of
evidencing the subordination of this Lease to such mortgages or instruments or
to any renewals, modifications, consolidations, replacements or extensions
thereof, on the condition that the Non Disturbance Agreement shall be unaffected
thereby. In the event of a sale under any mortgage (or any note or other
obligation secured thereby) to which this Lease is subordinate, or a taking of
possession of the Premises by the mortgagee or other person acting for or
through the mortgagee under any mortgage to which this Lease is subordinate,
then and upon the happening of such events, Lessee shall attorn to and recognize
as lessor hereunder as the party who, but for this Lease, would be entitled to
possession of the Premises. Lessee agrees to give any mortgagee notice of any
default of Lessor under the terms and conditions of this Lease and agrees that
if Lessor shall fail to cure such default, such mortgagee shall be given an
opportunity to take such actions to cure the default as it shall reasonably deem
appropriate to protect its security. In such event this Lease shall not be
terminated by Lessee as long as such mortgagee is promptly curing such default
or diligently pursuing such remedies, provided, however, that the period for the
cure thereof by such mortgagee shall not exceed sixty (60) days beyond the date
the notice to the mortgagee shall have been given. As used herein, the term
"institution" or "institutional holder" shall mean a bank (savings or
commercial), insurance company, savings and loan association or governmental
pension fund, in each case having a net worth in excess of Fifty Million
($50,000,000) Dollars.
20. CONDEMNATION.
(a) In the event that the Premises or any material part thereof shall be
condemned for public use, then and in that event, upon the vesting of title to
the same for such public use, this Lease shall terminate, anything herein
contained to the contrary
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notwithstanding, and Lessee shall be deemed to have exercised its option to
purchase the Premises as set forth in Paragraph 14 above as of such date of
termination. Neither Lessor nor any mortgagee of the Premises shall have any
interest in the condemnation award, the entirety of which shall belong to
Lessee. Lessor shall, nevertheless, cooperate with Lessee in obtaining any such
award to the extent such cooperation shall be reasonably necessary. As used
herein, the term "material part" shall be deemed to consist of either or both of
(i) a taking in excess of fifty (50) of the area of either the buildings and
improvements comprising the Premises and/or (ii) a taking which in the sole and
absolute judgment of Lessee shall be of such an extent as to render the
continued use of the Premises by Lessee uneconomical or undesirable for Lessee.
In the event of such termination of this Lease, Lessee shall be responsible for
payment to Lessor of the scheduled price, as set forth on Exhibit "C" attached
hereto and made a part hereof, as of the date closest to such termination (and
the Closing of title shall be governed by the provisions of Paragraph 14 above
as if Lessee had exercised its option to purchase).
(b) Notwithstanding the foregoing, in the event that less than a material
part of the Premises shall be so taken, Lessee may at its election retain the
part not so taken but there shall be no reduction in the Rent and the
condemnation award shall be paid to Lessor on the condition that Lessor shall
apply such award to the Rent and Purchase Price next coming due and payable
under the Lease, as the case may be. Nothing contained herein shall be construed
to preclude Lessee from prosecuting any claim directly against the condemning
authority in such condemnation proceeding for loss of business or depreciation
to, damage to, or cost of removal of, or for the value of, stock, trade
fixtures, furniture and other personal property belonging to Lessee; provided,
however, that no such claim shall diminish or otherwise adversely affect
Lessor's award or the award of any mortgagee who shall have entered into a
Non-Disturbance Agreement with Lessee in accordance with this Lease.
21. ESTOPPEL CERTIFICATES. Lessee and Lessor shall, at any time and from time
to time, within 15 days following written request from Lessor or Lessee,
execute, acknowledge and deliver to Lessor and Lessee a written statement
certifying that this Lease is in full force and effect and unmodified (or, if
modified, stating the nature of such modification), certifying the date to which
the Rent reserved hereunder has been paid, and certifying that there are not, to
Lessee's or Lessor's knowledge, any uncured defaults on the part of Lessor or
Lessee hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser or mortgagee of all or
any part of the Premises or land on which the Premises is situate or assignee of
Lessee's interest or subtenant. Lessee's or Lessor's failure to deliver such
statement within said 15-day period shall be conclusive upon Lessee or Lessor
that this Lease is in full force
-12-
and effect and unmodified, and that there are no uncured defaults in the
obligations of Lessor or Lessee hereunder.
22. DEFAULT. The occurrence of any of the following shall constitute an event
of default and breach of this Lease by Lessee:
A. A failure by Lessee to pay, when due, any installment of Rent hereunder
or any such other sum herein required to be paid by Lessee which continues
uncured for a period of fifteen (15) days following written notice thereof from
Lessor to Lessee;
B. A failure by Lessee to observe and perform any other terms or conditions
of this Lease to be observed or performed by Lessee, where such failure
continues for thirty days after written notice thereof from Lessor to Lessee;
provided, however, that if the nature of the default is such that the same
cannot reasonably be cured within such period, Lessee shall not be deemed to be
in default if within such period Lessee shall commence such cure and thereafter
diligently prosecute the same to completion and the cure period shall be
extended for such period of subsequent prosecution;
C. The making by Lessee of any assignment for the benefit of creditors; the
adjudication that Lessee is bankrupt, insolvent or unable to pay its debts; the
filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or
a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Lessee, the same is
dismissed within one hundred eighty (180) days after the filing thereof); the
appointment of a trustee or receiver to take possession of substantially all of
Lessee's assets located in the Premises or of Lessee's interest in this Lease
(unless possession is restored to Lessee within thirty days after such
appointment); or the attachment, execution or levy against, or other judicial
seizure of, substantially all of Lessee's assets located in the Premises or of
Lessee's interest in this Lease (unless the same is discharged within thirty
days after issuance thereof).
23. REMEDIES. Upon the occurrence of any such event of default set forth above
or elsewhere in the Lease, Lessor shall have the option of either (i)
terminating this Lease by twenty (20) days prior written notice thereof to
Lessee given within ten (10) days following the expiration, without cure, of the
cure period, or (ii) continuing the Lease in full force and effect. The election
by Lessor not to terminate this Lease upon the occurrence of any event of
default shall not preclude the later exercise by Lessor of its right to so
terminate this Lease. Failure to timely terminate constitutes an election to
continue the Lease.
A. In the event Lessor shall terminate this Lease as a result of an event
of default and Lessee shall not exercise its option to purchase and Lessor shall
not exercise its option to compel Lessee to purchase, each as in accordance with
Paragraph 14,
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then Lessor shall be entitled to recover as damages for the breach by the Lessee
of its obligations and liabilities under this Lease the full amount of the Rent
(including additional rent) for the remainder of the term, all of which shall
accelerate and be due and payable at once discounted at the rate of six (6%)
percent per annum and, in addition thereto, the Lessor shall be entitled to
recover from, and there shall be recoverable from, Lessee:
(1) The reasonably incurred actual cost of restoring said Premises to
good condition, normal wear and tear and damage by fire or other casualty
excepted;
(2) All due or accrued sums, under the terms of this Lease up to the
date of termination; and
(3) Lessor's reasonably incurred actual cost of recovering possession
of the Premises, including but not limited to, attorneys' fees and court
costs incurred by Lessor.
B. Upon any termination of this Lease, Lessee shall quit and peacefully
surrender the Premises (in the manner and upon the terms and conditions set
forth in Paragraph 15 hereof) to Lessor, and Lessor, upon or at any time after
any such termination, may, without further notice, enter upon and re-enter the
Premises and possess and repossess itself thereof, by force, summary
proceedings, ejectment or otherwise, and may dispossess Lessee and remove Lessee
and all other persons and property from the Premises and may have, hold and
enjoy the Premises and the right to receive all income of and from the same.
C. Against the rents and sums due from Lessee to Lessor during the
remainder of the term (including all due or accrued sums, plus interest and late
charges if in arrears, under the terms of this Lease), credit shall be given
Lessee in the net amount of rent received from the new tenant after deduction by
Lessor for:
(1) The reasonable costs incurred by Lessor in reletting the Premises
(including, without limitation, reasonable remodeling costs, and brokerage
fees);
(2) Lessor's reasonable cost of recovering possession of the Premises
including but not limited to attorneys' fees and court costs incurred by
Lessor; and
(3) The reasonable cost of storing any of Lessee's property left on
the Premises after re-entry. Notwithstanding any provision to the contrary,
upon the default of any substitute tenant or upon the expiration of the
lease term of such substitute tenant before the expiration of the term or
extension of the term then in effect, as the case may be, Lessor may, at
Lessor's election, either relet to still another substitute tenant, or
terminate this Lease and exercise its rights under this Lease.
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X. Xxxxxx shall have the right of injunction, in the event of a breach or
threatened breach by Lessee of any of the terms and conditions hereof, to
restrain the same and the right to invoke any remedy allowed by law or in
equity, whether or not other remedies, indemnity or reimbursements are herein
provided. The rights and remedies given to Lessor in this Lease are distinct,
separate and cumulative remedies; and no one of them, whether or not exercised
by Lessor, shall be deemed to be exclusive of any of the others.
24. WAIVER. The failure or delay on the part of either party to enforce or
exercise at any time any of the terms and conditions of this Lease shall in no
way be construed to be a waiver thereof, nor in any way to affect the validity
of this Lease or any part hereof, or the right of the party to thereafter
enforce each and every such term or condition. No waiver of any breach of this
Lease shall be held to be a waiver of any other or subsequent breach. The
receipt by Lessor of rent at a time when the rent is in default under this Lease
shall not be construed as a waiver of such default. The receipt by Lessor of a
lesser amount than the rent due shall not be construed to be other than a
payment on account of the rent then due, nor shall any statement on Lessee's
check or any letter accompanying Lessee's check be deemed an accord and
satisfaction, and Lessor may accept such payment without prejudice to Lessor's
right to recover the balance of the rent due or to pursue any other remedies
provided in this Lease. No act or thing done by Lessor or Lessor's agents or
employees during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such a surrender shall be
valid unless in writing and signed by Lessor.
25. QUIET ENJOYMENT. If and so long as Lessee pays the rent reserved hereunder
and observes and performs all the terms and conditions on Lessee's part to be
observed and performed hereunder, Lessee shall and may peaceably and quietly
have, hold and enjoy the Premises for the entire term hereof, subject to all the
terms and conditions of this Lease.
26. SUCCESSORS. The respective rights and obligations provided in this Lease
shall bind and shall inure to the benefit of the parties hereto, and their
permitted successors and assigns.
27. GOVERNING LAW. This Lease shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
28. SEVERABILITY. If any term, covenant or condition of this Lease shall prove
to be invalid, void or illegal it shall in no way affect, impair or invalidate
any other term, covenant or conditions hereof which shall nevertheless remain in
full force and effect.
29. HOLDING OVER. If Lessee shall, with the consent of Lessor, hold-over at the
expiration of the term hereof, such tenancy shall be deemed a month-to-month
tenancy, which tenancy may be terminated
-15-
as provided by applicable law. During such tenancy, Lessee agrees to pay to
Lessor an amount equal to one and one-half (1-1/2) times the amount of fixed
minimum rent in effect at the time of the termination of this Lease, and to be
bound by all the terms and conditions hereof. If Lessor shall not give consent
to such hold-over by Lessee, such tenancy may be terminated as above provided,
and until Lessee has vacated the Premises, it agrees to pay to Lessor rent at a
monthly rental double the then annual rent paid by Lessee at the expiration of
the term of this Lease.
30. LESSOR'S LIABILITY. Any covenants and agreements herein made on the part of
Lessor are made and intended not as personal covenants, but are made and
intended for the purpose of binding only Lessor's interest in the Premises, as
the same may from time to time be encumbered. No personal liability or personal
responsibility is assumed by, or shall at any time be asserted or enforceable
against, Lessor or its legal representatives, successors, and assigns on account
of the Lease or on account of any covenant or agreement of Lessor herein.
31. NOTICES. All notices under this Lease shall be in writing and sent by
registered or certified mall, postage prepaid, to Lessor at 000 X.X. Xxxxx 00,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxx, and to Lessee at 000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 or such other addresses may from time
to time be designated by either party in writing. Notices mailed as aforesaid
shall be deemed given on the date of such mailing. Any consent of Lessor to any
action of Lessee contemplated hereby shall be given prior to the action so taken
in writing in the same manner as any notices required hereunder.
32. BROKERS. Each of the parties represents and warrants that there are no
claims for unpaid brokerage commissions or finder's fees in connection with the
execution of this Lease, and agrees to indemnify the other against and hold it
harmless from all liabilities arising from any such claim including, without
limitation, the cost of attorney's fees in connection therewith.
33. ENTIRE AGREEMENT. This Lease contains all covenants and agreements between
Lessor and Lessee relating in any manner to the rent, use and occupancy of the
Premises and Lessee's use of the Premises and other matters set forth in this
Lease. No prior agreement or understanding pertaining to the same shall be valid
or of any force or effect and the terms, covenants and conditions of this Lease
shall not be altered, modified or added to except in writing signed by Lessor
and Lessee.
34. ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION
A. Hazardous Materials: The term "Hazardous Materials" as used herein shall
mean any substance or waste defined or designated as hazardous or toxic waste,
material, substance or similar term by
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any present or future federal, state or municipal environmental statute, code,
ordinance, order, judgment, decree, injunction, restriction, requirement, rule
or regulation of any governmental agency or authority, and shall include,
without limitation, all of the following:
(i) hazardous substances, as such term is defined in the
Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601(14), as
amended by the Superfund Amendments and Reauthorization Act
of 1986, Pub. L. Xx. 00000, 000 Xxxx. 0000 (Xxx. 17, 1986)
("XXXX"); (ii) regulated substances, within the meaning of
Title I of the Resource Conservation and Recovery Act, 42
U.S.C. Sections 6991-6991 (i), as amended by XXXX; (iii) any
element, compound or material which can pose a threat to the
public health or the environment when released into the
environment; (iv) hazardous waste as deemed in the
Pennsylvania Solid Waste Management Act, Pa. Stat. Xxx.
title 35 Section 6018.103 (Xxxxxx Supp. 1987); (v) hazardous
material designated under the Pennsylvania Hazardous
Materials Transportation Act Pa. Stat. Xxx. title 75 Section
8301 to 8308 (Xxxxxx Supp. 1987); (vi) any substance which
may be the subject of liability pursuant to the Pennsylvania
Clean Streams Law, Pa. Stat. Xxx. title 35, Sections 691.1
to 691.1001 (Xxxxxx Supp. 1987); (vii) an object or material
which is contaminated with any of the foregoing; (viii) any
other substance designated by any federal, state, and local
laws, statutes, ordinances, rules, regulations, orders and
requirements of common law concerning protection of the
environment or human health ("Environmental Laws") or a
federal, state or local agency as detrimental to public
health, safety and the environment.
B. Lessee Representations: Lessee hereby covenants, represents and warrants
that it shall not use the Premises for the purpose of refining, producing,
storing, handling, transferring, processing or transporting Hazardous Materials
or in violation of the Environmental Laws.
C. Compliance with Environmental Laws: Lessee shall operate the Premises or
cause it to be operated in compliance with the Environmental Laws and all
applicable laws, rules and regulations promulgated by the Environmental
Protection Agency and the Department of Environmental Resources of the
Commonwealth of
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Pennsylvania or any successor agencies thereto including, without limitation,
regulations governing underground storage tanks.
D. Indemnification: Lessee shall indemnify, defend and hold harmless
Lessor, its partners, directors, officers, employees, agents, servants,
successors and assigns from and against any and all claims, liabilities,
obligations, damages, penalties, causes of action, costs and expenses (including
attorneys' fees, investigation, consultant and management fees and court costs)
arising from (i) Lessee's or any of Lesee's agents', contractors', employees',
invitees', or licensees' use or occupancy of the Premises, including, but not
limited to, the release or discharge of Hazardous Materials in, on or about the
Premises, or (ii) the conduct of Lessee's business or the business of any of
Lessee's agents, contractors, employees, invitees, or licensees, or (iii) any
activity, work or things done, permitted or suffered by Lessee or any of
Lessee's agents, contractors, employees, invitees, or licensees, including, but
not limited to, the use, treatment, production, handling, refining, transfer,
processing, transporting, generating, manufacturing, disposing or storage of any
Hazardous Materials including, without limitation, petroleum products, radon,
asbestos, or polychlorinated biphenyls in, about or affecting the Premises or
elsewhere, or (iv) the violation of any Environmental Laws or any federal, state
or municipal environmental present and future laws, statutes, codes, or
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
restrictions and requirements, or (v) any act, event or occurrence affecting the
Premises which results from the use, treatment, production, handling, refining,
transfer, processing, transporting, generating, manufacturing, disposing or
storage of any Hazardous Materials. In case any action or proceeding is brought
against Lessor by reason of any such claim, Lessee upon notice from Lessor shall
defend the same at Lessee's expense by counsel reasonably satisfactory to
Lessor. The provision of this Section shall survive the termination or
expiration of this Lease and the surrender of the Premises by Lessee.
B. Present Conditions: Notwithstanding anything to the contrary contained
in this Lease, Lessor agrees to indemnify, defend and hold harmless Lessee from
and against all claims, liabilities, losses, damages and penalties to the extent
they are based upon or caused by Hazardous Materials which were present at the
site at the date of this Lease including, without limitation, the Hazardous
Materials disclosed in that certain Phase II Environmental Site Assessment of
the Premises dated December 14, 1996 prepared by Front Royal Environmental
Services, Inc.;
35. No Termination. Without limiting Lessee's obligations under Paragraph 3
hereof, this Lease shall not terminate nor shall Lessee have any right to
terminate this Lease or to be released, relieved or discharged from any
obligations or liabilities hereunder for any
-18-
of the following reasons except as otherwise expressly provided in this Lease:
(a) any damage to, or destruction of, the Premises or any portion
thereof;
(b) any condemnation, confiscation, requisition or other taking or
sale of the possession, use, occupancy or title to the Premises or any
portion thereof;
(c) any limitation, restriction, deprivation or prevention of, or any
interference with, any use or the occupancy or possession of the Premises
or any portion thereof, unless resulting from the material breaches or
default of Lessor (or persons acting by, through or on behalf of Lessor)
and unless Lessee's use, occupancy or possession of the Premises is
materially impaired or interfered with. Nothing herein shall impair or
limit the rights of Lessor's mortgagees to notice of and an opportunity to
cure such breach or default;
(d) any failure by Lessee to obtain or maintain any permits, licenses,
approvals or other authorizations to permit its operations on the Premises
as may be required by any governmental authorities having jurisdiction of
the Premises;
(e) any material default or breach on the part of Lessor under this
Agreement unless such default or breach materially impairs or interferes
with Lessee's use, occupancy or possession of the Premises and Lessor's
mortgagees shall have had reasonable notice of and full and adequate
opportunity to cure;
(f) the inadequacy, incorrectness or failure of the description of the
Premises or any portion thereof if the use, occupancy or possession of the
Premises by Lessee is not materially impaired or adversely affected
thereby; or
(g) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution or other proceeding affecting Lessor
or any assignee of Lessor, or any action with respect to this Lease which
may be taken by any receiver, trustee or liquidator (or other similar
official) or by any court.
Except as otherwise provided herein, Lessee waives all rights now or
hereafter conferred by law to any abatement, suspension, deferment, diminution
or reduction of Rent or other amounts payable by Lessee hereunder.
35. CONDITION OF PREMISES. The Premises are leased by Lessor to Lessee
hereunder subject to:
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(a) discrepancies or conflict in boundary lines easements,
encroachments or area content which a satisfactory survey would disclose;
(b) building restrictions and regulations, and the amendments and the
additions thereto now or at any time hereafter in force in Rockwood,
Somerset County, Pennsylvania;
(c) present and future zoning law, ordinances, resolutions and
regulations of Rockwood, Somerset County, Pennsylvania, and all present and
future ordinances, laws, regulations and orders of all boards, bureaus,
commissions and bodies of any municipal, county, state or federal
governments now or hereafter having or acquiring jurisdiction of the
Premises and the use, occupancy and condition thereof;
(d) the effect of all present and future municipal, state or federal
laws, orders and regulations relating to lessees, sublessees or occupants
of the Premises, their rights and the rentals to be charged for the use of
the Premises or any portion or portions thereof;
(e) violations of laws, ordinances, orders or requirements that might
be disclosed by any examination and inspection or search of the Premises by
any federal, state or municipal departments or authorities having
jurisdiction, as the same may exist on the date hereof or on the
Commencement Date, and which the Lessee covenants and agrees to remove
promptly as is provided in Paragraph 9 of this Lease (except for the
presence of Hazardous Materials as identified in the Phase II Environmental
Site Assessment of the Premises dated November 14, 1996 conducted by Front
Royal Environmental Services, Inc.
(f) the condition and state of repair of the building on the Premises
demised hereunder as the same may be on the Commencement Date;
(g) all assessments, water meter and water charges and sewer rents,
accrued, fixed or not fixed; and
(h) the restrictions, covenants, easements and agreements now of
record and described in Exhibit B.
Except as set forth in Paragraph 34(E) of this Lease, Lessor makes no
representations or warranties to Lessee with respect to the Premises. Lessee
acknowledges and agrees that it has examined the condition of the Premises and
has found the same to be satisfactory for all purposes hereof. Lessee further
acknowledges and agrees that Lessor has made no representations or warranties
concerning the permitted uses of the Premises, the zoning laws applicable to the
Premises, or the financial statements applicable to the operation of the
Premises, and that the obligations of
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Lessee hereunder are not conditioned upon, and are independent of, the use of
the Premises for any specific purpose.
36. RECORDATION. Upon the request of either Lessor or Lessee, the parties shall
record a memorandum of this Lease at the expense of the party requesting the
recording.
IN WITNESS WHEREOF, this Lease has been executed by the parties hereto the
day and year first above written.
Attest: ROCKWOOD ASSET MANAGEMENT, INC.
____________________________ By:____________________________
By its: ____________________
Attest: ROCKWOOD CASUALTY INSURANCE
COMPANY
____________________________ By:____________________________
By its: ____________________
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LEGAL DESCRIPTION
PARCEL 1:
ALL THAT CERTAIN lot or piece of ground, situate in the Borough of
Rockwood, Somerset County, Pennsylvania being bounded and described as follows:
BEGINNING at a star bolt (found), said point being the northeast point of
intersection of the right-of-way of Main Street and the right-of-way of Walnut
Street;
THENCE along the eastern right-of-way line of Walnut Street, N
5(degree)46'20" W, a distance of 149.98 feet to a star bolt (found) at the
southeast intersection of the right-of-way of Walnut Street and the right-of-way
of a 24-foot alley;
THENCE along the southern right-of-way line of the 24-foot alley, N
84(degree)44'40" E, a distance of 50.00 feet to a point at the xxxxx of lot 80,
property of Xxx X. Xxxxxx;
THENCE along property of Xxx X. Xxxxxx, S 04(degree)05'50" E, a distance of
150.00 feet to a star bolt (found) on the northern right-of-way line of Main
Street,
THENCE along the northern right-of-way line of Main Street, S
84(degree)44'40" W, a distance of 45.62 feet to the place of BEGINNING.
BEING marked, known and numbered as lot no. 81 on the Plan of Lots of
Rockwood Borough.
PARCEL 2:
ALL THAT CERTAIN lot or piece of ground, situate in the Borough of
Rockwood, Somerset County, Pennsylvania being bounded and described as follows:
BEGINNING at a point, said point being on the northerly right-of-way line
of Main Street and the southeast corner of lot 77, property of Xxxxxxx X.
Xxxxxxxx;
THENCE along property of Xxxxxxx X. Xxxxxxxx, N 4(degree)18'00" W, a
distance of 154.00 feet to an iron pipe (found) on the southern right-of-way
line of a 24-foot alley;
THENCE along said alley N 84(degree)44'40" E, a distance of 166.50 feet to
a point at the corner of property of N/F Xxxxxx Co.;
THENCE along property of N/F Xxxxxx Co., S 21(degree)22'00" E, a distance
of 90.27 feet to a railroad spike (found);
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THENCE continuing along property of N/F Xxxxxx Co., S 50(degree)00'00" E, a
distance of 108.00 feet to a pipe (found) on the northern right-of-way line of
Main street,
THENCE along the northern right-of-way line of Main Street, S
86(degree)45'05" W, a distance of 270.30 feet to the place of BEGINNING.
BEING marked, known and numbered as lots 74 through 76 and parts of lots 71
& 72 & 73 on the Plan of Lots of Rockwood Borough.
PARCEL 3:
ALL THAT CERTAIN lot or piece of ground, situate in the Borough of
Rockwood, Somerset County, Pennsylvania being bounded and described as follows:
BEGINNING at a drill hole (found), said point being on the southern
right-of-way line of Main Street and at the northeast xxxxx of property of Xxxxx
X. Xxxxxxx;
THENCE along the southern right-of-way line of Main Street, N
86(degree)65'45" E, a distance of 55.80 feet to a doll hole (found);
THENCE continuing along the right-of-way of Main Street, N 40(degree)00'00"
E, a distance of 243.20 feet to a star bolt (found) at the southeast point of
intersection of the southern right-of-way line of Main Street and the western
right-of-way line a 16.5-foot alley;
THENCE along said alley S 50(degree)00'00" E, a distance of 150.00 feet to
an iron pipe (found) on line of property of N/F the Borough of Rockwood;
THENCE along property of N/F the Borough of Rockwood the following courses
and distances:
S 40(degree)00'00" W, a distance of 50.00 feet to a point;
N 50(degree)00'00" W, a distance of 38.20 feet to a star bolt (found);
S 45(degree)51'10" W, a distance of 22.55 feet to a star bolt (found);
S 50(degree)00'00" E, a distance of 40.50 feet to an iron pin (found);
S 40(degree)00'00" W, a distance of 144.05 feet to an iron pipe (found);
N 50(degree)00'00" W, a distance of 59.65 feet to an iron pipe (found);
S 42(degree)53'00" W, a distance of 106.95 feet to a point;
S 67(degree)23'00" W, a distance of 51.80 feet to a point;
N 83(degree)25'00" W, a distance of 6.90 feet to an iron pipe (found) on
the line of property of Xxxxx X. Xxxxxxx;
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THENCE along property of Xxxxx X. Xxxxxxx, N 6(degree)19'00" W, a distance
of 132.95 feet to the Place of BEGINNING.
BEING marked, known and numbered as lots 3 through 8 on the Plan of Lots of
Rockwood Borough.
This legal description describes all that property described in Lawyer's
Title Insurance Corporation Title Commitment No. 182083, bearing an effective
date of December 9, 1996.
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EXHIBIT "B"
1. Any taxes for the current year which may be hereafter assessed, but which
are not yet due and payable.
2. All coal and mining rights and all rights relating thereto.
3. The following rights of way:
a) From Rockwood Insurance Company to Xxxxxxx X. Xxxxxxxx and Xxxxxxxx X.
Xxxxxxxx dated December 1, 1972 and recorded in Deed Book Volume 733, Page
22, and as shown on the Survey (as herein defined).
b) From Rockwood Insurance Company to Pennsylvania Electric Company dated
January 11, 1985 and recorded February 13, 1985 in Deed Book Volume 931,
Page 705, and as shown on the Survey.
4. Oil and gas lease to X.X. Xxxx dated August 13, 1980 and recorded in Deed
Book Volume 868, Page 385, as referenced on the Survey.
5. Easement Agreement between Rockwood Insurance Company and the Borough of
Rockwood recorded March 8, 1984 in Deed Book Volume 915, Page 410, as shown
on the Survey.
6. Oil and gas lease given by Xxxxxxx X. Xxxxxxxx to X. X. Xxxx, dated March
24, 1980, and recorded in Somerset County Deed Book Volume 871, at Page 58,
as assigned to Amoco Production Company by assignment dated December 30,
1980, and recorded in Somerset County Deed Book Volume 871, at page 106, as
referenced on the Survey.
7. Perpetual Easement from Xxxxx X. Xxxxxxxxx and Xxxx Xxx Xxxxxxxxx, his
wife, to Borough of Rockwood recorded February 23, 1965 in Deed Book Volume
609, Page 517.
8. Reservations and exceptions as set forth in deed from Xxxxxxxx X. Xxxxxxxxx
and Xxxxxxx X. Xxxxxxxx, her husband, to Xxxxx X. Xxxxxxxxx and Xxxx Xxx
Xxxxxxxxx, husband and wife, dated December 24, 1964 and recorded December
24, 1964 in Deed Book Volume 607, Page 551.
9. Taxes for the year 1997 and thereafter, which are not yet due and payable.
10. Current water charges in the amount of $136.68 and current sewer charges in
the amount of $322.50, neither of which are yet due and payable.
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11. ALTA/ACSM Land Title Survey by Xxxxxx X. XxXxxxxxx, P.L.S., dated 12/26/96
and last revised 12/27/96, designated as Project No. 9596 (hereinafter the
"Survey") discloses the following:
a) Subject Premises' asphalt pavement encroaches onto premises adjoining on
the South, by 3.8 feet;
b) Subject Premises' asphalt pavement encroaches onto premises adjoining on
the West, by 3.1 feet;
c) Overhead utility lines cross Subject Premises to other property;
d) Subject Premises' asphalt pavement encroaches onto premises adjoining on
the East, by 11.8 feet;
e) Manholes;
f) Flood control easement;
g) Concrete Block Retaining Wall encroaches from/onto southeasterly portion
of Parcel 3.
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EXHIBIT "C"
Schedule of Purchase Price
(See Paragraph 14 of the Lease)
For purpose of the computation of the price under Paragraph 14 of the
Lease, the purchase price shall equal the present value, using an 8-1/2 percent
per annum discount rate, of all payments of fixed minimum rent shown on Schedule
A to be made under the Lease from and after the date of the exercise of the
option, including the payment of $2,500,000 at the expiration of the term of the
Lease (and referred to in Paragraph 14), using a mid year convention and a
straight line interpolation to the closing date of the transaction described in
Paragraph 14 of the Lease. The purchase price shall be Two Million Five Hundred
Thousand ($2,500,000) Dollars on the fifteenth anniversary of the Commencement
Date (as prescribed in Paragraph 14) of the Lease.
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SCHEDULE A
RENT
Year Rent
1 $78,000
2 $78,000
3 $78,000
4 $86,000
5 $86,000
6 $261,000
7 $287,040
8 $287,040
9 $287,040
10 $287,040
11 $677,040
12 $704,122
13 $704,122
14 $704,122
15 $704,122
Option $2,500,000
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MEMORANDUM OF LEASE
----------
THIS MEMORANDUM made and entered into for the purpose of recording in
accordance with the Act of June 2, 1959, P.L. 454, ss.2, 21 P.S.ss.405, this
31st day of December in the year 1996, by and between ROCKWOOD ASSET MANAGEMENT,
INC., a Pennsylvania corporation, as Lessor, and ROCKWOOD CASUALTY INSURANCE
COMPANY, a Pennsylvania insurance corporation, as Lessee, parties to the Lease
dated as of December 31, 1996 (hereinafter sometimes called the "Lease"), as
follows:
I. The name of the lessor in the Lease is ROCKWOOD ASSET MANAGEMENT,
INC., a Pennsylvania corporation.
II. The name of the lessee in the Lease is ROCKWOOD CASUALTY INSURANCE
COMPANY, a Pennsylvania insurance corporation.
III. The address of the lessor in the Lease is 000 Xxxxx 00, Xxxxxxx,
Xxxxxxxxxxxx 00000; and the address of the lessee in the Lease is
000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000.
IV. The date of the Lease is December 31, 1996.
V. The demised premises as described in the Lease are those certain
lots or pieces of ground, with buildings and improvements thereon
erected, situate in the Borough of Rockwood, County of Somerset
and Commonwealth of Pennsylvania, more particularly
-29-
described in the Schedule attached hereto and made a part hereof,
as if set forth herein verbatim.
VI. The date of commencement of the term of the Lease is January 1,
1997.
VII. The term of the Lease commences at 12:01 a.m. on January 1, 1997
and ends at midnight on December 31, 1022, unless sooner
terminated in accordance with the provisions of the Lease or
otherwise by law.
VIII. Neither the lessor nor the lessee under the Lease has the right to
extend or renew the term of the Lease.
IX. The lessee under the Lease has the right and obligation of
purchase with respect to the demised
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premises in accordance with the provisions of the Lease.
IN WITNESS WHEREOF, the lessor and the lessee under the Lease, the parties
to the Lease, have executed this Memorandum of Lease the day and year referred
to above.
Signed, sealed and delivered
in the presence of: LESSOR:
ROCKWOOD ASSET MANAGEMENT, INC.
____________________________ By______________________________
Title:________________________
____________________________ Attest:_________________________
Title:___________________
[Corporate Seal]
LESSEE:
ROCKWOOD CASUALTY INSURANCE
COMPANY
____________________________ By______________________________
Title:________________________
____________________________ Attest:_________________________
Title:___________________
[Corporate Seal]
-00-
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this the 31st day of December, 1996, before me, a Notary Public in and
for the said County and State, personally appeared ____________________________,
who acknowledged himself to be the ____________________ of ROCKWOOD ASSET
MANAGEMENT, INC., a Pennsylvania corporation, and that he, as such officer,
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
such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------
Notary Public
My commission expires:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this the 31st day of December, 1996, before me, a Notary Public in and
for the said County and State, personally appeared ____________________________,
who acknowledged himself to be the ____________________ of ROCKWOOD CASUALTY
INSURANCE COMPANY, a Pennsylvania insurance corporation, and that he, as such
officer, 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 such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------
Notary Public
My commission expires:
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