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Exhibit 10.12
PROVISIONAL LEASE AGREEMENT
This Lease Agreement (the "Lease") is made as of the
29th day of July, 1998 by and between MALLINCKRODT, INC., a Delaware corporation
(the "Landlord"), and GEO SPECIALTY CHEMICALS, INC., an Ohio corporation (the
"Tenant"). Unless otherwise specifically set forth herein, capitalized terms
shall have the meaning ascribed to them in that certain Asset Purchase
Agreement, by and among Tenant, as buyer, Landlord and Mallinckrodt, Inc., a New
York corporation, collectively, as seller, dated June 29, 1998 (the "Asset
Purchase Agreement").
1. LEASED PREMISES. Upon and subject to the terms and
conditions of this Lease, Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the real property located in South Whitehall Township,
County of Lehigh and State of Pennsylvania, as further described on EXHIBIT A
attached hereto and made a part hereof, together with the buildings and other
improvements and fixtures located thereon (the "Improvements"), and all
easements and licenses appurtenant thereto, in accordance with the terms hereof
(the "Leased Premises"), which Leased Premises are part of the real property
described on EXHIBIT B, attached hereto and made a part hereof.
2. LEASE TERM. (a) This Lease shall commence on the
date first written above (the "Commencement Date") and shall expire on the
earliest to occur of: (a) the date the Deed for the Leased Premises is filed
with the South Whitehall County Recorders Office pursuant to the Asset Purchase
Agreement; (b) the date Tenant is vested in fee simple title to the Leased
Premises and more land pursuant to Tenant's rights under that certain Mortgage
by Landlord, in favor of Tenant, encumbering the Leased Premises and more land,
dated of even date herewith (the "Mortgage"); or (c) the date that is
twenty-nine (29) years and eleven (11) months after the Commencement Date (the
"Term").
3. RENT. (a) During the Term, commencing on the
Commencement Date, Tenant shall pay to Landlord, as base rent (the "Base Rent"),
a sum equal to $10.00 per annum, payable in one installment in advance on the
Commencement Date and on each anniversary of the Commencement Date.
(b) In addition to the Base Rent as provided above,
Tenant shall also pay, when due, all costs, expenses and other sums of money
required to be paid by Tenant under the terms of this Lease, any and all of
which are hereby defined as "Additional Rent." In the event of any non-payment
of Additional Rent, when due, Landlord shall have all of the rights and remedies
provided for hereunder, or by law or in equity, for the non-payment of Base Rent
or for any other breach of this Lease. Base Rent and Additional Rent are
hereinafter sometimes collectively referred to as "Rent."
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(c) All Rent shall be payable without demand,
deduction or set- off. All Rent payments shall be made to Landlord at Landlord's
address set forth in paragraph 22 or at such other address as Landlord may
designate.
4. REAL PROPERTY TAXES AND ASSESSMENTS. Tenant shall
pay all real property taxes and assessments, special or otherwise, affecting the
Leased Premises and covering the period included within the Term.
Notwithstanding the preceding sentence, Tenant shall have the right to institute
and prosecute any lawful contest of real property taxes and assessments, special
or otherwise, affecting the Leased Premises, and Landlord agrees to cooperate
with Tenant in connection therewith at no cost to Landlord.
5. UTILITIES. Tenant shall pay, as and when due, all
water, sewer, power, heat, gas, electricity and all other utility services used
or consumed on the Leased Premises during the Lease Term, such payment to be
made directly to the supplying utility company. Landlord shall not be liable for
any permanent or temporary interruption or termination of utility services nor
shall any of Tenant's obligations under this Lease be affected by any such
interruption or termination of utility services.
6. MAINTENANCE AND REPAIRS. Tenant shall, throughout
the Lease Term, at its sole cost and expense, keep and maintain the Leased
Premises in good working order and condition, including, without limitation, the
structural components, floors, walls, roof, replacement of glass, repair of
doors, truck docks and truck pads, heating units, electrical, plumbing and other
utility systems serving the Leased Premises, and the parking lots serving the
Leased Premises, and the private roadways located on the Leased Premises, except
to the extent improvements are required thereto in connection with the
fulfilment of Landlord's obligations under the Asset Purchase Agreement.
7. FIXTURES AND ALTERATIONS. Tenant shall have the
right to make any alterations, installations, additions or expansions to the
Leased Premises as Tenant may desire, provided that Tenant shall do so in a good
and workmanlike manner, free of any mechanics liens and in accordance with all
governmental laws, ordinances, requirements, orders, directions, rules or
regulations (collectively, "Governmental Requirements"), and provided, further,
that Tenant does so in a manner that is reasonably calculated not to interfere
with Landlord's use of, or activities on, its property adjacent to the Leased
Premises. Upon the expiration or earlier termination of this Lease, Tenant, at
its own cost and expense, shall have the right, but not the obligation, to
remove all trade fixtures and other equipment owned by Tenant and located within
the Leased Premises, and shall repair any damage caused by such removal.
8. USE. Subject in all respects to the terms and
conditions otherwise set forth in this Lease, Tenant may use the Leased Premises
for any lawful purpose; provided that, during the Term, Tenant will not take any
action, or omit to take
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any action, that would give rise to Environmental Claims with respect to the
Leased Premises. Tenant shall not use or occupy the Leased Premises, or permit
or suffer the Leased Premises or any part thereof to be used or occupied, for
any unlawful or illegal business, use or purpose, or in any manner to constitute
a nuisance of any kind, or for any purpose or in any way in violation of any
Governmental Requirements or in any manner that might breach any of its
obligations under the Asset Purchase Agreement. Landlord shall not be liable for
the loss of or any damage to any property of Tenant or of others located or
stored in, upon or about the Leased Premises, whether by theft, vandalism,
malicious mischief, unlawful entry or any other cause or reason.
9. LIENS. (a) Throughout the Term, Tenant shall not
suffer or permit any mechanic's lien or other lien to attach to the Leased
Premises as a result of any work performed by Tenant or its agents, and whenever
and as often as any such lien or liens shall be filed or shall attach, Tenant
shall, within 90 days thereafter, pay or bond off such lien or liens or procure
their cancellation in any manner prescribed or permitted by law.
(b) Tenant acknowledges and agrees that Tenant is
not, and shall not be deemed to be, an agent of Landlord in connection with any
construction, demolition or renovation activities undertaken by Tenant at the
Leased Premises, and nothing contained in this Lease shall be construed as
consent or permission by Landlord to subject Landlord's fee simple estate in the
Land or the Leased Premises to any lien of contractors, suppliers, materialmen
or other persons performing services, or supplying labor or materials, in
connection any construction, demolition or renovation activities undertaken by
Tenant.
10. INSURANCE. (a) Throughout the Term, Tenant shall
obtain and keep in force, at its sole cost and expense, commercial general
liability insurance insuring both the Landlord and Tenant from and against any
and all claims for damages resulting from injury or death to persons or injury
to property occurring in and about the Leased Premises or arising out of the
ownership, maintenance, use or occupancy of the Leased Premises. The amount of
coverage shall be not less than $2,000,000.00 per occurrence and $3,000,000.00
annual aggregate for property damage and injury or death to persons. Tenant
shall also maintain all risk property damage insurance covering all of Tenant's
trade fixtures, equipment, furnishings and other personal property and contents
and all other portions of the Leased Premises.
(b) Tenant shall deliver to Landlord a certificate
evidencing the existence and amount of the insurance required to be carried by
Tenant hereunder. No policy of insurance required to be obtained and maintained
hereunder shall be cancelable or subject to reduction of coverage or other
material modification except after thirty (30) days prior written notice to
Landlord.
(c) Tenant shall keep the Improvements now or
hereafter located on the Leased Premises insured against loss by fire (with
extended coverage) in an
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amount equal to not less than one hundred percent (100%) of the full insurable
value thereof.
11. FIRE OR OTHER CASUALTY. If at any time during the
Lease Term all or any portion of the Improvements now or hereafter erected on
the Leased Premises shall be destroyed or damaged by fire, flood, or any other
casualty, Tenant shall repair, reconstruct and restore such Improvements, and
there shall be no abatement in Base Rent or any other charges hereunder during
the period of such restoration.
12. MUTUAL RELEASE AND WAIVER OF CLAIMS.
Notwithstanding any provision of this instrument to the contrary, Landlord and
Tenant hereby each waive all rights of recovery and causes of action which
either party has or may have, or which may arise hereafter, against the other,
whether caused by negligence or otherwise, for any loss or damage to property or
business arising out of or incident to the perils required to be insured against
under this Lease; provided, however, that the foregoing waivers apply only to
the extent of such insurance coverage and to the extent such waivers do not
invalidate any policy of insurance of the parties hereto, now or hereafter
issued, it being stipulated that the waiver shall not apply if the application
thereof would result in the invalidation of such policy of insurance.
13. CONDEMNATION. (a) If the whole or any substantial
or material part of the Leased Premises shall be taken, appropriated or
condemned for any public or quasi-public use or purpose, then Tenant may elect
to terminate this Lease by delivering written notice to Landlord (the
"Termination Notice"), such Termination Notice to be delivered to Landlord not
more than thirty (30) days after title to the Leased Premises vests in the
taking authority, and all rents and other charges paid under this Lease shall be
apportioned as of the date of Landlord receives the Termination Notice.
(b) Tenant shall be entitled to receive any award in
connection with any taking, appropriation or condemnation of the Leased Premises
referred to in paragraph 13(a). Landlord hereby assigns all of Landlord's right,
title and interest in and to any such award to Tenant, and Landlord hereby
irrevocably appoints Tenant as Landlord's limited power of attorney to prosecute
and collect any such award on behalf of Landlord.
14. MORTGAGES. Landlord shall not permit or cause to
be permitted any liens, restrictions, easements, covenants, encumbrances or
other conditions on the Leased Premises other than the items listed on EXHIBIT
C, attached hereto and made a part hereof (the "Permitted Encumbrances").
15. DEFAULT. (a) Tenant shall be in default hereunder
if any one or more of the following events (hereinafter referred to individually
as an "Event of Default") shall occur: (i) Tenant shall fail to pay any amounts
or charges payable by Tenant under this Lease and such failure shall continue
for more than 30 days after
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receipt of written notice by Tenant of such failure, (ii) Tenant shall neglect
or fail to perform or observe any of the other terms, covenants or conditions
contained in this Lease and such failure shall continue for more than 30 days
after notice to Tenant of such failure, provided, that if such default cannot be
reasonably cured within such 30 day period, such period shall be extended so
long as Tenant commences the cure of such default within such 30 day period and
diligently prosecutes the completion thereof, and in any event is unable to cure
such default within 120 days after notice to Tenant of such failure. Upon the
occurrence of an Event of Default, or at any time thereafter while an Event of
Default continues, Landlord shall have the right, at its option, to terminate
this Lease. If this Lease is terminated in the manner provided above or by legal
proceedings or otherwise, Landlord or its duly authorized agents shall have the
right, immediately or at any time thereafter, and without the necessity of
giving any further notice, to reenter and to resume possession of the Leased
Premises without being deemed guilty of trespass or any other violation of law
and without prejudice to any remedies Landlord may have for unpaid rent or for
damages for breach of this Lease.
(b) All remedies available to Landlord are declared
to be cumulative and concurrent. In the event of a default or threatened default
by Tenant of any of the terms, provisions, covenants, conditions, rules and
regulations of this Lease, Landlord shall have the right to seek and the right
to invoke any remedy permitted to Landlord in law or in equity. No termination
of this Lease nor any taking or recovering of possession of the Leased Premises
shall deprive Landlord of any of its remedies or actions against Tenant for all
damages resulting from Tenant's default.
16. SUBLETTING AND ASSIGNMENT. Tenant shall have the
right to assign, pledge or mortgage this Lease, whether by operation of law or
otherwise, or sublease all or any part of the Leased Premises, without the
consent of the Landlord.
17. SURRENDER OF LEASED PREMISES; HOLDOVER. At the
expiration of the Lease Term, or upon any earlier termination of this Lease for
any reason, Tenant shall surrender the Leased Premises in good condition and
repair, reasonable wear and tear and taking by eminent domain excepted. If
Tenant fails to surrender possession of the Leased Premises at the expiration of
the Lease Term, Tenant shall be a Tenant at sufferance, but shall remain liable
for the performance of all Tenant obligations hereunder.
18. CERTIFICATES. Either party shall, without charge,
at any time and from time to time hereafter, within fifteen (15) days after
written request of the other party, certify by written instrument duly executed
and acknowledged to any mortgagee or purchaser, or proposed mortgagee or
proposed purchaser, or any other person, firm or corporation specified in such
request: (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment; (b) as to the
existence of any default hereunder, to such certifying party's best knowledge
and belief; (c) as to the existence of any offsets, counterclaims or defenses
thereto on the part of such other party, to such certifying party's best
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knowledge and belief; and (d) as to any other matters as may reasonably be so
requested. Any such certificate may be relied upon by the party requesting it
and any other person, firm or corporation to whom the same may be exhibited or
delivered, and the contents of such certificate shall be binding on the party
executing the same.
19. QUIET ENJOYMENT. Landlord warrants to Tenant,
that upon Tenant's paying the rent and all other amounts and charges Tenant is
required under this Lease to pay, and upon Tenant's performing and observing all
covenants, agreements and conditions of this Lease that Tenant is required to
perform and observe, Tenant shall quietly have, hold and enjoy the Leased
Premises during the Lease Term without hindrance or interruption by Landlord or
any other person or persons claiming by, through or under the Landlord.
20. FORCE MAJEURE. Except for any obligation to pay
rent or other charges required under this Lease, if either Landlord or Tenant
shall be delayed in or prevented from the performance of any of the terms,
covenants and conditions of this Lease, by reason of restrictive governmental
laws or regulations, riots, insurrections, war, sabotage, act of God, or any
other reason of a similar or dissimilar nature not the fault of the party
delayed in or prevented from performance, then performance shall be excused for
the period of the delay or prevention of performance and the time for
performance shall be extended for an equivalent period.
21. WAIVER. The waiver by Landlord of any breach of
any term, covenant or condition of this Lease shall not be deemed to be a waiver
of such term, covenant or condition or any subsequent breach of the same or any
other term, covenant, or condition of this Lease. Landlord's acceptance of rent
shall not be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease. No term, covenant, or condition of
this lease shall be deemed to have been waived by Landlord unless such waiver be
in writing by Landlord.
22. NOTICES. Any notice, demand, or request required
to be given by Landlord or Tenant under this Lease shall be in writing signed by
the party giving such notice. Any notice, request or instruction to be given
hereunder by any party to the other party will be deemed to have been given (i)
when it is delivered, (ii) the Business Day after it is sent by overnight
courier, or (iii) when it is sent by facsimile, with confirmation of receipt,
addressed as follows or to such other address(es) as may be designated by
written notice to the other party from time to time:
If to Tenant: GEO Specialty Chemicals, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxxx, Esq.
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Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
If to Landlord: Mallinckrodt, Inc.
000 XxXxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx, Vice President, Corporate
Development
Fax No.: (000) 000-0000
with a copy to: Mallinckrodt, Inc.
000 XxXxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Vice President and General Counsel
Fax No.: (000) 000-0000
23. GOVERNING LAW; SEVERABILITY; SUCCESSORS. This
Lease and its performance shall be governed, interpreted and regulated by and in
accordance with the laws of the State of Pennsylvania. If any portion of this
Lease should be invalid or held invalid, the remainder of it shall be unaffected
and remain in full force and effect. The provisions of this Lease shall apply to
and be binding upon the heirs, successors, assigns and legal representatives of
both Tenant and Landlord.
24. CONFLICT OF TERMS; ENTIRE AGREEMENT; MODIFICATION
OF LEASE This Lease shall at all times be subject to the Asset Purchase
Agreement. The parties agree that no term or provision of this Lease shall limit
or affect any obligation of the parties under the Asset Purchase Agreement. In
the event the terms and conditions contained herein (including, without
limitation, the terms of paragraph 25 below) are inconsistent or conflict with
the terms and conditions set forth in the Asset Purchase Agreement, the terms
and conditions of the Asset Purchase Agreement shall govern and control so long
as such terms remain in effect. There are no oral agreements existing between
the parties hereto with respect to the subject matter hereto. This Lease shall
not be modified except in writing signed by both Landlord and Tenant.
25. INDEMNIFICATION. Tenant shall indemnify, defend
and hold harmless Landlord from and against any and all losses, claims,
liabilities, damages, demands, fines, costs and expenses (including reasonable
legal expenses) of whatever kind and nature (collectively, "Claims") to the
extent resulting from any of the following: (i) Tenant's negligent or wrongful
acts or omissions, (ii) Tenant's breach of the terms and provisions of this
Lease or (iii) any accident, occurrence or condition caused by Tenant from the
release after the Commencement Date of any Hazardous Substances (as defined
below) in, on, under or from the Leased Premises that results in
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any injury or death to any person or damage to any property or that requires any
investigation with respect to, the removal, treatment or other remediation of,
such Hazardous Substances under the terms of any Environmental Laws (as defined
below). As used throughout this Lease, the term "Hazardous Substances" shall
mean any hazardous waste, hazardous or toxic substances, including without
limitation, asbestos, PCBs, lead-based paint, petroleum and petroleum products,
radioactive materials, pesticides, herbicides and any other substance, material
or waste that is now or hereafter regulated by any federal, state or local
governmental authority or that is now or hereafter listed, defined as or
included in the definition of 'hazardous substances', 'hazardous wastes',
'hazardous materials', 'toxic materials' or 'toxic substances' under any
applicable Environmental Laws now or hereafter in effect. As used throughout
this Lease, the term "Environmental Laws" shall mean any law, regulation, rule,
order or directive of any federal, state or local governmental authority now or
hereafter in effect that relates to pollution or protection of public health and
safety or to the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, and
the Resource Conservation and Recovery Act, as amended.
(b) Landlord shall indemnify, defend and hold
harmless Tenant from and against any and all Claims to the extent resulting from
any of the following: (i) Landlord's negligent or wrongful acts or omissions,
(ii) Landlord's breach of the terms and provisions of this Lease or (iii)
subject to the terms of the Asset Purchase Agreement, any accident, occurrence
or condition caused by the release on or before the Commencement Date of any
Hazardous Substances in, on or under the Leased Premises, or any release before
or after the Commencement Date on any adjoining land owned by Landlord, that
results in any injury or death to any person or damage to any property or that
requires any investigation with respect to, the removal, treatment or other
remediation of such Hazardous Substances under the terms of any Environmental
Laws.
26. COUNTERPARTS. Two or more duplicate originals of
this Lease may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument. The Lease
may be executed in one or more counterparts and will be effective when at least
one counterpart has been executed by each party thereto, and each set of
counterparts shall constitute one duplicate original.
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IN WITNESS WHEREOF, the parties have executed this
Lease on the day and year first above written.
MALLINCKRODT, INC, GEO SPECIALTY CHEMICALS,
a Delaware corporation. INC., an Ohio corporation.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: President
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