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EXHIBIT 10.12
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into THIS 30TH DAY OF JULY,
1998, by and between XXXXXX X. XXXXXXX, a Pennsylvania resident, as Landlord
("LANDLORD"), XXXXXXXXX X. XXXXXXX, as an additional signatory for Landlord
("ADDITIONAL Signatory") and XXXXXXX INDUSTRIAL SUPPLY CO., a Pennsylvania
corporation, as Tenant ("TENANT").
W I T N E S S E T H:
1. DEFINITIONS. For purposes of this Lease, the following terms shall
have the following meanings, unless the context requires otherwise:
(a) "COMMENCEMENT DATE" shall mean the date on which the term of this
Lease commences.
(b) "CPI" shall mean the Consumer Price Index For Urban Wage Earners
and Clerical Workers, U.S. City Average (1967 = 100) Unadjusted, all items
index, published by the Bureau of Labor Statistics, United States Department of
Labor.
(c) "EXPIRATION DATE" shall mean the date upon which the term of this
Lease expires.
(d) "HAZARDOUS SUBSTANCES" shall mean those substances as set forth on
EXHIBIT "C", attached hereto and incorporated herein by reference.
(e) "IMPROVEMENTS" shall mean and shall include any and all buildings,
structures, fixtures, driveways, parking areas, paved areas, fences and other
improvements located on, or attached or affixed to, the Land as of the date of
this Lease, or to be constructed, installed or placed on the Land by Landlord
prior to the Commencement Date pursuant to this Lease, and any and all
modifications, alterations and replacements thereof, substitutions therefor and
additions thereto. The term Improvements does not include the Land.
(f) "LAND" shall mean that certain tract or parcel of land located at
the INTERSECTION OF FARMTRAIL ROAD AND SUSQUEHANNA TRAIL, YORK COUNTY,
PENNSYLVANIA, and as more particularly described on EXHIBIT "A" attached hereto,
and incorporated herein by reference, together with all easements and rights
appurtenant thereto, and Landlord's right, title and interest in and to all
streets, public or private alleys and public or private ways adjoining or
crossing said land.
(g) "LAWS" shall mean all federal, state, county, municipal and other
governmental constitutions, statutes, ordinances, codes, regulations,
resolutions, rules, requirements and directives and all decisions, judgments,
writs, injunctions, orders, decrees or demands of courts, administrative bodies
and other authorities construing any of the foregoing. "LAW" shall be the
singular reference to Laws.
(h) "LEASE" shall mean this Lease Agreement, together with any and all
exhibits and attachments which may be part of this Lease Agreement.
(i) "LEASE YEAR" shall mean: (i) if the Commencement Date is the first
day of a calendar month, the TWELVE (12) calendar month period commencing on the
Commencement Date, and ending on the day immediately preceding the first
anniversary of the Commencement Date, and each succeeding such TWELVE (12)
calendar month period during the term of this Lease; or (ii) if the Commencement
Date is not the first day of a calendar month, the TWELVE (12) calendar month
period commencing on the first day of the first calendar month following the
Commencement Date, and ending on the day immediately preceding the first
anniversary of such date, and each succeeding such TWELVE (12)
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calendar month period during the term of this Lease, PROVIDED, HOWEVER, that, if
the Commencement Date is a day other than the first day of a calendar month, the
First Lease Year shall include the period from the Commencement Date through the
last day of the calendar month during which the Commencement Date occurs.
(j) "MORTGAGE" shall mean any mortgage, deed to secure debt, deed of
trust, trust deed or other conveyance of, or lien or encumbrance against, the
Premises as security for any debt, whether now existing or hereafter arising or
created. "MORTGAGES" shall mean more than one "Mortgage".
(k) "MORTGAGEE" shall mean the holder of any Mortgage, together with
the heirs, legal representatives, successors, transferees and assigns of the
holder. "MORTGAGEES" shall mean more than one "Mortgagee".
(l) "PARTY" shall mean either Landlord or Tenant, as appropriate.
"PARTIES" shall mean both Landlord and Tenant.
(m) "PREMISES" shall mean the Land and the Improvements.
(n) "RENT" shall mean the rental specified and provided for in this
Lease.
(o) "TAXES AND ASSESSMENTS" shall mean real property ad valorem taxes
and assessments levied, assessed or imposed upon, against or with respect to the
Premises at any time during the term of this Lease by a governmental authority.
Taxes and Assessments shall not include any assessments by the Farmbrook
Industrial Park or any other industrial park.
2. TERM; OPTION TO EXTEND.
(a) The initial term of this Lease (the "INITIAL TERM") shall be for
TEN (10) LEASE YEARS, commencing on the earlier of: (i) TEN (10) days after
Landlord achieves Substantial Completion (as defined in the Work Letter); or
(ii) the date Tenant commences its normal business operations on the Premises
(the "COMMENCEMENT DATE"). The Lease shall expire at midnight on the last day of
the Initial Term (the "EXPIRATION DATE"), unless extended or sooner terminated
as hereinafter provided. All references to the term of this Lease shall be
references to the term of this Lease as it may be renewed or extended.
(b) Tenant shall have the right to extend the term of this Lease for an
additional period of FIVE (5) LEASE YEARS, by delivering written notice to
Landlord not less than ONE HUNDRED EIGHTY (180) DAYS prior to the Expiration
Date. If Tenant exercises the foregoing right to extend the term of this Lease,
all terms and conditions of this Lease (other than this option to extend) shall
remain in full force and effect, except that: (i) the Expiration Date shall be
extended by the number of Lease Years set forth in this SUBPARAGRAPH (b); and
(ii) the Rent shall be increased by FIVE PERCENT (5%).
(c) If Tenant exercises the option to extend provided for in
SUBPARAGRAPH (b), above, then Tenant shall have the further right to extend the
term of this Lease for a second additional period of FIVE (5) LEASE YEARS by
delivering written notice to Landlord not less than ONE HUNDRED EIGHTY (180)
DAYS prior to the Expiration Date, as theretofore extended. If Tenant exercises
the foregoing right to extend the term of this Lease, all terms and conditions
of this Lease (other than this option to extend) shall remain in full force and
effect, except that: (i) the Expiration Date shall be extended by the number of
Lease Years set forth in this SUBPARAGRAPH (c); and (ii) the Rent, as increased
by SUBPARAGRAPH (b) above, shall be increased by FIVE PERCENT (5%).
3. OPTION TO TERMINATE. Tenant shall have the right to terminate this
Lease at any time on or after the first day of the SEVENTH (7TH) LEASE YEAR and
before the first day of the NINTH (9TH) LEASE YEAR by providing Landlord with
written notice of Tenant's election to terminate the Lease (the
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"EARLY TERMINATION NOTICE"). The foregoing termination shall be effective on the
date ONE HUNDRED EIGHTY (180) DAYS following the effective date of Landlord's
receipt of the Early Termination Notice (the "EARLY TERMINATION DATE");
provided, that, on or before the Early Termination Date, Tenant has paid to
Landlord a termination fee ("TERMINATION FEE") in the amount of: (a) TEN
THOUSAND AND NO/100 DOLLARS ($10,000.00) if Tenant gives the Early Termination
Notice on or after the first day of the SEVENTH (7TH) LEASE YEAR and before the
first day of the EIGHTH (8TH) LEASE YEAR; or (b) TWENTY THOUSAND AND NO/100
DOLLARS ($20,000.00) if the Tenant gives the Early Termination Notice on or
after the first day of the EIGHTH (8TH) LEASE YEAR and before the first day of
the NINTH (9TH) LEASE YEAR. If the Early Termination Notice is timely given, and
the Early Termination Fee is timely paid by Tenant to Landlord, then this Lease
shall terminate on the Early Termination Date and the Early Termination Date
shall be the Expiration Date for all purposes herein.
4. RENT. Tenant shall pay to Landlord, at the address specified in this
Lease for the giving of notices to Landlord or at such other place as Landlord
may specify, an annual Rent which shall initially be THREE HUNDRED NINETEEN
THOUSAND TWO HUNDRED FIFTEEN AND NO/100 DOLLARS ($319,215.00) (the "RENT"). The
Rent shall be due and payable initially in equal monthly installments, in
advance, of TWENTY-SIX THOUSAND SIX HUNDRED ONE AND 25/100 DOLLARS ($26,601.25),
beginning on the Commencement Date, and continuing on the first day of each
succeeding month thereafter throughout the term of this Lease; PROVIDED,
HOWEVER, that, if the Commencement Date is a day other than the first day of a
calendar month, the Rent payable for the period from the Commencement Date
through the end of the calendar month during which the Commencement Date occurs
shall be the above-referenced monthly Rent prorated on a daily basis, and shall
be payable, together with the Rent for the first full calendar month of the
Initial Term, on the first day of the first calendar month following the
Commencement Date. All Rent paid more than FIFTEEN (15) DAYS beyond the date it
is due and payable shall accrue interest at the rate of TWELVE PERCENT (12%) per
annum. Notwithstanding the foregoing, no interest shall accrue against Rent that
is paid beyond the date it is due and payable as long as Xxxxxx X. Xxxxxxx
remains employed at Landlord.
5. PREMISES; CONSTRUCTION OF IMPROVEMENTS; REPRESENTATIONS, WARRANTIES
AND COVENANTS.
(a) In consideration of the agreements, terms, covenants, conditions,
requirements, provisions and restrictions to be kept, observed, performed,
satisfied and complied with by Tenant, and for the Rent herein provided, and
upon the terms and conditions herein stated, Landlord hereby lets, leases and
demises unto Tenant, and Tenant hereby leases, takes and accepts from Landlord,
the Premises.
(b) Landlord shall complete and install, at its sole cost and expense,
the Improvements on the Land in accordance with the Work Letter attached hereto
as EXHIBIT "B" (hereinafter called the "WORK LETTER"), and incorporated herein
by reference, including but not limited to the construction of 14,061 SQUARE
FEET OF OFFICE SPACE and 49,782 SQUARE FEET OF WAREHOUSE SPACE.
(c) Landlord represents, warrants and covenants to and with Tenant,
knowing that Tenant is relying on each such representation, warranty and
covenant, that: (i) there are no actions, suits or proceedings pending or
threatened against, by or affecting Landlord, which affect title to the Premises
or which question the validity or enforceability of this Lease or of any action
taken by Landlord under this Lease, in any court or before any governmental
authority, domestic or foreign; (ii) the execution of and entry into this Lease,
and the performance by Landlord of Landlord's duties and obligations under this
Lease are consistent with and not in violation of, and will not create any
adverse condition under, any contract, agreement or other instrument to which
Landlord is a party, any judicial order or judgment of any nature by which
Landlord is bound, or the organizational documents of Landlord; (iii) Landlord
has good and marketable fee simple title to the Land and is not subject to any
Mortgage, lien, encroachment, covenant, easement or restriction which would
adversely affect Tenant's use and enjoyment of the Premises, with the exception
of those items ("PERMITTED EXCEPTIONS") set forth on EXHIBIT "A-1" attached
hereto, and incorporated herein by reference; (iv) the Premises does not violate
any applicable Laws and
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the use and occupancy of the Premises and Improvements by the Tenant
contemplated under this Lease is in compliance with zoning and other applicable
Laws; (v) no portion of the Land is used or has ever been used for the storage,
processing, treatment or disposal of Hazardous Substances; the Improvements do
not and will not contain Hazardous Substances; no Hazardous Substances have been
released, introduced, spilled, discharged or disposed of, nor has there been a
threat of release, introduction, spill, discharge or disposal of Hazardous
Substances, on, in, or under the Land; there are no pending claims,
administrative proceedings, judgments, declarations or orders, whether actual or
threatened, relating to the presence of Hazardous Substances on, in or under the
Land; the Land is in compliance with all federal, state and local laws,
regulations, orders and requirements regarding the regulation of Hazardous
Substances; Landlord will not cause or permit Hazardous Substances to be brought
on, kept or used in or about the Premises; and, no Hazardous Substances have
been released, introduced, spilled, discharged or disposed of on, in or under
any adjacent land; (vi) there are no pending, threatened or contemplated
condemnation actions involving all or any portion of the Land; and there are no
existing, proposed or contemplated plans to widen, modify or realign any public
rights-of-way located adjacent to any portion of the Land; and (vii) all
utilities (including, without limitation, water, storm and sanitary sewer,
electricity, gas, telephone and cable television) are available on the Land in
capacities sufficient to serve and operate the Improvements.
6. USE. Tenant may use and operate the Premises for any lawful business
purpose. Tenant shall not use or occupy the Premises, or permit the Premises to
be used or occupied, for any unlawful purpose, in material violation of any Law,
or in any manner which would violate any certificate of occupancy with respect
to the Premises, which would cause or would be likely to cause material damage
to the Improvements, or which would constitute a public or private nuisance.
7. TAXES AND ASSESSMENTS.
(a) Tenant shall pay as and when they shall become due and payable all
Taxes and Assessments for each calendar year during the term of this Lease.
Tenant may take the benefit of any law permitting any Taxes and Assessments to
be paid over time or in installments.
(b) Taxes and Assessments for the calendar years during which the
Commencement Date and the Expiration Date occur shall be prorated so that Tenant
pays only that portion of the Taxes and Assessments for such calendar years
allocable to periods of time during the term of this Lease. Such proration shall
be computed and made as soon as practicable after the Commencement Date and the
Expiration Date.
(c) Tenant may, at Tenant's sole cost and expense, in Tenant's own name
and on Tenant's own behalf, or in the name and on behalf of Landlord, in good
faith, contest any Taxes and Assessments and, in the event of any such contest,
may permit the Taxes and Assessments so contested to remain unpaid during the
period of such contest and any appeal therefrom; provided, however, that, if the
Premises or any part thereof are subject to imminent danger of loss or
forfeiture by virtue of or by reason of such nonpayment, such Taxes and
Assessments shall be paid forthwith or Tenant shall deposit with Landlord a sum
of money reasonably required by Landlord as security to protect the Premises
from any such loss or forfeiture. Landlord, at the sole cost and expense of
Tenant, shall cooperate fully with Tenant in any such contest. Tenant may, at
Tenant's sole cost and expense, in Tenant's own name and on Tenant's own behalf,
apply for any tax exemption allowed by the state in which the Premises is
located or any political or taxing subdivision thereof under any existing or
future provision of law which grants or may grant any such tax exemption.
8. UTILITIES. Prior to the Commencement Date, Landlord shall make all
arrangements for, and pay or cause to be paid when due all charges for, the
connection and hook-up of all utilities and services to the Premises including,
but not limited to, electricity, gas, fuel, heat, water, sewer, telephone,
power, sanitary services and trash collection. Tenant shall pay or cause to be
paid when due all charges for all such utilities and services consumed at the
Premises during the term of this Lease, excluding the charges to be paid by
Landlord.
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9. REPAIRS BY LANDLORD. Landlord, at Landlord's sole cost and expense,
shall perform all maintenance, replacement or repair of the Premises under the
EIGHTEEN (18) MONTH warranty described at PARAGRAPH 2.06 of the Work Letter.
Landlord, at Landlord's sole cost and expense, shall maintain and repair,
throughout the term of this Lease, the roof, foundations, footings, columns,
exterior walls and other structural components of the Improvements, exterior
glass (except when replacement is made necessary by Tenant's breakage), parking
and other paved areas, landscaping and other exterior areas on the Land, all
utility facilities serving the Premises, plumbing, electrical and other building
systems for the Improvements, and all repairs not required to be performed by
Tenant. Landlord shall also be responsible for paying all costs of any
maintenance and repairs that are to be paid pursuant to paragraph 2 of that
certain Clarification Letter and Agreement as to Confirmatory Deed entered into
between Landlord and Sinking Springs Farms, Inc., dated _____________, 1998.
10. REPAIRS BY TENANT. Tenant, at Tenant's sole cost and expense, shall
perform all maintenance and repair of the interior of the Premises with the
exception of the utility services and building systems. Notwithstanding the
foregoing, Tenant shall pay for a maintenance contract for the HVAC systems
exclusively servicing the Premises. Tenant shall maintain and repair the
interior Premises so that the Premises shall be in good order and repair and
Tenant shall repair any material damage to the roof, foundation, footings,
columns, exterior walls and other structural components of the Improvements
caused by Tenant or Tenant's employees, invitees or licensees, ordinary wear and
tear excepted, unless covered by Landlord's or Tenant's insurance.
11. ALTERATIONS AND ADDITIONS. Tenant may, at Tenant's sole cost and
expense, construct or otherwise make new Improvements on any part or all of the
Land, and may alter, modify, repair or add to the Premises (all or any of the
foregoing being hereinafter collectively called "ALTERATIONS"). Landlord's prior
written consent (which consent shall not be unreasonably withheld, conditioned
or delayed) shall be required before Tenant makes any Alterations; PROVIDED,
HOWEVER, that Landlord's consent shall not be required for any Alterations that:
(i) do not adversely affect either the structural components of the Improvements
or the building systems for the Improvements; or (ii) are anticipated to cost
less than $10,000.00. All Alterations shall be subject to the following:
(a) No Alterations shall be commenced until Tenant shall have obtained
all certificates, licenses, permits, authorizations, consents and approvals
necessary for such Alterations, from all governmental authorities having
jurisdiction with respect to the Premises or such Alterations, and Landlord
shall fully cooperate with Tenant in obtaining any such certificate, license,
permit, authorization, consent or approval.
(b) Tenant shall cause all Alterations to be made and completed in a
good and workmanlike manner, and in compliance with all Laws, and shall cause
all Alterations to be diligently prosecuted to completion.
(c) Tenant shall promptly pay all costs and expenses incurred for any
Alterations, and Tenant shall at all times maintain the Premises free and clear
of all liens for services or labor performed or rendered, or for materials
delivered, supplied or furnished, to or in connection with any Alterations.
12. LEGAL REQUIREMENTS.
(a) Tenant shall, at Tenant's sole cost and expense, promptly comply
with all legal requirements affecting the Premises. The phrase "legal
requirements affecting the Premises", as used in this paragraph, shall mean and
shall include all Laws to the extent the same shall be applicable to Tenant or
Tenant's use or occupancy of the Premises, specifically excluding any zoning
Law, building Law, Law applicable to the construction or installation of the
Improvements, or any other Law requiring construction, modification, or
installation of Improvements (except as a result of or in connection with any
Alterations made by Tenant).
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(b) Tenant may, at Tenant's sole cost and expense, in Tenant's own name
and on Tenant's own behalf or in the name of and on behalf of Landlord, in good
faith, contest any legal requirement affecting the Premises and, in the event of
any such contest, may permit such legal requirement so contested to remain
unsatisfied during the period of such contest and any appeal therefrom;
PROVIDED, HOWEVER, that, if the Premises or any part thereof are subject to loss
or forfeiture by virtue of or by reason of such non-compliance, such legal
requirements shall be complied with forthwith or Tenant shall deposit with
Landlord a sum of money reasonably required by Landlord as security to protect
the Premises from any such loss or forfeiture. Landlord, at the sole cost and
expense of Tenant, shall cooperate fully with Tenant in any such contest.
13. NO LIENS.
(a) Tenant shall not create any lien, encumbrance or charge against the
Premises or any part of the Premises. If any lien, encumbrance or charge is
filed against all or any part of the Premises, Tenant shall cause the same to be
discharged by payment, satisfaction or posting of bond within NINETY (90) DAYS
after demand therefor by Landlord. If Tenant fails to cause any such lien,
encumbrance or charge to be discharged within the permitted time, Landlord may
cause it to be discharged and may pay the amount of such claim of lien in order
to do so. If Landlord makes any such payment, all amounts paid by Landlord shall
be payable by Tenant to Landlord upon demand.
(b) Tenant may, at Tenant's sole cost and expense, in Tenant's own name
and on Tenant's own behalf or in the name of and on behalf of Landlord, in good
faith, contest any claim of lien and, in the event of any such contest, may
permit such claim of lien so contested to remain unpaid, unsatisfied and
undischarged during the period of such contest and any appeal therefrom;
PROVIDED, HOWEVER, that, if the Premises or any part thereof are subject to
imminent danger of loss or forfeiture by virtue of or by reason of such claim of
lien, such claim of lien shall be complied with forthwith or Tenant shall
deposit with Landlord a sum of money reasonably required by Landlord as security
to protect the Premises from any such loss or forfeiture. Landlord, at the sole
cost and expense of Tenant, shall cooperate fully with Tenant in any such
contest.
14. DAMAGE OR DESTRUCTION.
(a) For the purposes of this Lease, the following terms shall have the
following meanings: (i) "CASUALTY" shall mean damage or destruction of the
Premises, or any portion thereof, by fire or other casualty; (ii) the "DATE OF
CASUALTY" shall mean the date on which the Casualty occurs; (iii) "PROCEEDS"
shall mean the amounts recovered or recoverable as compensation or damages for
damage to the Premises on account of a Casualty, including insurance payments;
and (iv) a Casualty affecting a "SUBSTANTIAL PORTION OF THE PREMISES" shall mean
a Casualty which, in Tenant's good faith judgment, renders the Premises
unsuitable for the continued feasible and economic use by Tenant.
(b) If there occurs a Casualty affecting a Substantial Portion of the
Premises, the term of this Lease shall expire on the date of such destruction
with the same effect as if the Date of Casualty were the Expiration Date, and
all Rent and other sums payable by Tenant hereunder shall be apportioned and
paid through and including the Date of Casualty.
(c) If there occurs a Casualty affecting less than a Substantial
Portion of the Premises, then this Lease and all duties and obligations of
Tenant under this Lease shall remain unmodified, unaffected and in full force
and effect; PROVIDED, HOWEVER, that, commencing with the date of any Casualty,
Rent shall xxxxx pro rata to the extent that, and for so long as, any portion of
the Premises is not reasonably usable by Tenant in the ordinary conduct of its
business. Landlord shall promptly proceed to repair, restore, rebuild,
reconstruct or replace the damaged or destroyed portion to a condition at least
as good as the condition which existed immediately prior to the Casualty.
Landlord shall be entitled to apply the Proceeds to the reconstruction,
restoration and repair of the Premises from time to time as such work
progresses. Any portion of the Proceeds remaining after final payment has been
made for such work shall
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be retained by and be the property of Landlord. If the cost of such work exceeds
the Proceeds, Landlord shall pay the excess cost.
15. CONDEMNATION.
(a) For purposes of this Lease, the following terms shall have the
following meanings: (i) "TAKING" shall mean any condemnation or exercise of the
power of eminent domain by any public authority vested with such power, or any
taking in any other manner for public use, including a private purchase, in lieu
of condemnation, by a public authority vested with the power of eminent domain;
(ii) the "DATE OF TAKING" shall mean the earlier of the date upon which title to
the Premises or portion thereof taken is vested in the condemning authority, or
the date upon which possession of the Premises or portion thereof is taken by
the condemning authority; (iii) "AWARD" shall mean any amounts paid, recovered
or recoverable as damages, compensation or proceeds by reason of any taking on
account of a Taking, including all amounts paid pursuant to any agreement with
such entity which has been made in settlement or under threat of any such action
or proceeding, less the reasonable costs and expenses incurred in collecting
such amounts; and (iv) a Taking affecting a "SUBSTANTIAL PORTION OF THE
PREMISES" shall mean a Taking affecting so much of the Premises as, when taken,
leaves the untaken portion unsuitable for the continued feasible and economic
operation of the Premises by Tenant for substantially the same purposes as
immediately prior to such taking.
(b) If there occurs a Taking of all or a Substantial Portion of the
Premises, other than a Taking for temporary use, then this Lease shall
automatically terminate, and the term of this Lease shall automatically expire,
on the Date of Taking, as if such date were the Expiration Date, and all Rent
and other sums payable by Tenant hereunder shall be apportioned and paid through
and including the Date of Taking.
(c) If there occurs a Taking of less than a Substantial Portion of the
Premises, then this Lease and all duties and obligations of Tenant under this
Lease shall remain unmodified, unaffected and in full force and effect;
PROVIDED, HOWEVER, that the Rent payable after the taking shall be reduced to an
amount which bears the same ratio to the Rent payable immediately prior to the
taking as the rental value of the Premises after taking bears to the rental
value of the Premises immediately prior to the taking. Landlord shall promptly
proceed to reconstruct, restore and repair the remaining portion of the Premises
(to the extent possible) to a condition substantially equivalent to the
condition thereof prior to the Taking. Landlord shall be entitled to apply the
Award received by Landlord to the reconstruction, restoration and repair of the
Premises from time to time as such work progresses. If the cost of the repair
work exceeds the Award recovered by Landlord, Landlord shall pay the excess
cost.
(d) If there occurs a Taking of the Premises or any portion thereof,
for temporary use, then this Lease shall remain in full force and effect for the
remainder of the Term, PROVIDED, HOWEVER, that during such time as Tenant shall
be out of possession of the Premises by reason of such Taking, the failure to
keep, observe, perform, satisfy and comply with those terms and conditions of
the Lease which are effectively made impractical or impossible as a result of
Tenant's being out of possession of the Premises (and which shall not include
payment of Rent or additional Rent) shall not be an event of default hereunder.
The Award for any such temporary taking payable for any period prior to the
Expiration Date shall be paid to Tenant and, for any period thereafter, to
Landlord.
(e) Except as may be expressly provided in SUBPARAGRAPH (d), above, and
hereafter in this SUBPARAGRAPH (e), Landlord shall be entitled to all Awards
payable by reason of any taking, and Tenant shall not be entitled to any portion
of, and shall have no claim for, and hereby transfers, assigns, conveys and sets
over unto Landlord all of its right, title and interest, if any, in or to, any
Award payable by reason of any taking. Notwithstanding the foregoing, Tenant
shall have the right to make a separate claim with the condemning authority for:
(i) any moving expenses incurred by Tenant as a result of such condemnation;
(ii) any unamortized costs incurred or paid by Tenant in connection with
Alterations made by Tenant to the Premises; and (iii) the value of any of
Tenant's property taken.
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16. WAIVER OF SUBROGATION; INDEMNITY.
(a) To the extent permitted by law, Landlord and Tenant hereby waive
any and all rights of recovery, claim, action or cause of action against each
other, their respective agents, officers and employees, for any loss or damage
that may occur to the Premises, or to any other property, whether real, personal
or mixed, located in the Premises, by reason of fire, the elements, or any other
cause insured against, or required to be insured against, under the terms of
policies of insurance maintained, or required to be maintained, for the Premises
or such other property, by Landlord or Tenant (as the case may be) under the
terms of this Lease, regardless of cause or origin, including negligence of the
parties hereto, their respective agents and employees.
(b) Subject to the provisions of SUBPARAGRAPH (a), above, Tenant agrees
to indemnify and save Landlord harmless from any and all claims with respect to
bodily injury, personal injury or property damage arising from Tenant's use and
occupancy of the Premises or from Tenant's negligence or intentional acts or the
negligence or intentional acts of any of Tenant's agents or employees, including
all costs, actual and reasonable counsel fees, expenses and liabilities incurred
in connection with any such claim; and if any action or proceeding is brought
against Landlord by reason of any such claim, Tenant upon notice from Landlord
covenants to resist or defend such action or proceeding at its expense.
(c) Subject to the provisions of SUBPARAGRAPH (a), above, Landlord
agrees to indemnify and save Tenant harmless from any and all claims with
respect to bodily injury, personal injury or property damage arising from
Landlord's negligence or intentional acts or the negligence or intentional acts
of any of Landlord's agents or employees, including all costs, actual and
reasonable counsel fees, expenses and liabilities incurred in connection with
any such claim; and if any action or proceeding is brought against Tenant by
reason of any such claim, Landlord upon notice from Tenant covenants to resist
or defend such action or proceedings at its expense.
17. ENVIRONMENTAL COVENANTS
(a) If removal, encapsulation or other remediation is required as to
Hazardous Substances located in, on or under the Land, or the Improvements by
applicable Laws (herein "REMEDIATION"), unless such Hazardous Substances were
released or placed on the Land or Improvements by Tenant, Landlord immediately
and with all due diligence and at no expense to Tenant, shall take all measures
necessary to comply with all applicable Laws, to remove such Hazardous
Substances and to perform such Remediation. Landlord shall repair and restore
the Premises at its expense (herein "RESTORATION"). From the date such Hazardous
Substances are discovered on the Premises to the date such Remediation and
Restoration is complete, the Rent due hereunder shall be reduced by the same
percentage as the percentage of the Premises which, in Tenant's good faith
judgment, cannot be safely, economically or practically used for the operation
of Tenant's business. Notwithstanding anything to the contrary, if in Tenant's
good faith judgment such Remediation and Restoration cannot be completed within
NINETY (90) DAYS following the date such Hazardous Substances are discovered,
Tenant may terminate this Lease by written notice to Landlord which shall be
effective on Landlord's receipt.
(b) Subject to the provisions of PARAGRAPH 16 (a) of this Lease,
Landlord agrees to indemnify and save Tenant harmless from and against any and
all claims, judgments, demands, penalties, fines, losses and costs and expenses
incurred by Tenant during or after the term of this Lease as a result of (i) any
Hazardous Substances that Landlord causes or permits to be brought upon, kept or
used in or about the Premises; and (ii) any Hazardous Substance that exist in or
about Premises as of the Commencement Date.
(c) Subject to the provisions of PARAGRAPH 16 (a) of this Lease, Tenant
agrees to indemnify and save Landlord harmless from and against any and all
claims, judgments, demands, penalties, fines, losses and costs and expenses
incurred by Landlord during or after the term of this Lease as a result
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of any Hazardous Substances that Tenant causes or permits to be brought upon,
kept or used in or about the Premises.
18. INSURANCE
(a) From and after the Commencement Date, Tenant shall procure, and
shall maintain in full force and effect at all times during the term of this
Lease, the following types of insurance with respect to the Premises, paying as
the same become due all premiums therefor:
(i) commercial general public liability insurance insuring against
all liability of Tenant and Tenant's officers, employees, agents, licensees
and invitees arising out of, by reason of or in connection with the use,
occupancy or possession of, or any conduct or activity on, the Premises, in
an amount of not less than $ 1,000,000.00 for injury to or death of one
person or as a result of one occurrence, and not less than $ 5,000,000.00
for injury or death to more than one person as a result of one occurrence,
and for damage to property in the amount of $ 1,000,000.00, or combined
single limit of $ 1,000,000.00 with an umbrella policy of $ 4,000,000.00;
and
(ii) workmen's compensation insurance as required by any Law; and
(iii) insurance in an amount not less than 100% of the fair market
value of the Improvements against direct and indirect loss or damage by
fire and other typical casualties and risks.
(b) Tenant shall pay all premiums for the insurance coverage which
Tenant is required to procure and maintain under this Lease. Each insurance
policy: (i) shall be issued by an insurer authorized under the applicable Laws
to issue the coverage provided by the policy; (ii) shall name Landlord, Tenant
and any lender with an interest in the Premises (provided such lender has
executed an SNDA pursuant to PARAGRAPH 19 of this Lease) as insured parties, as
their respective interests may appear; (iii) shall provide that the policy
cannot be canceled as to Landlord except after the insurer gives Landlord TEN
(10) DAYS written notice of cancellation; (iv) shall not be subject to
invalidation as to Landlord by reason of any act or omission of Tenant or any of
Tenant's officers, employees or agents; and (v) shall contain a provision to the
effect that the policy shall not be invalidated, and shall remain in full force
and effect, if any insured waives in writing prior to a loss any or all rights
of recovery against any party for loss occurring to property covered by that
policy, and a provision whereby the insurer itself waives any claims by way of
subrogation against Landlord. Immediately upon the issuance of each policy
required under this Lease, Tenant shall deliver evidence of coverage to
Landlord, together with evidence that the premiums therefor have been paid for a
period of at least SIX (6) MONTHS from the date of delivery. Not less than TEN
(10) DAYS prior to the expiration date of each policy required, Tenant shall pay
the premium for renewal for a period of not less than SIX (6) MONTHS and deliver
to Landlord evidence of the renewal, together with evidence that the renewal
premium has been paid for a period of not less than SIX (6) MONTHS.
(c) From and after the Commencement Date, Landlord shall procure, and
shall maintain in full force and effect at all times during the term of this
Lease, the following types of insurance with respect to the Premises, paying as
the same become due all premiums therefor: rent insurance insuring Landlord
against loss of Rent in the event of damage to or destruction of the Premises,
in an amount equal to one hundred percent (100%) of the annual Rent from time to
time payable under this Lease.
19. MORTGAGES AND MORTGAGEES. The following provides for the effect of
Mortgages on this Lease and for the rights of Mortgagees:
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(a) This Lease shall be subordinate to any and all Mortgages
encumbering the Premises or any part of the Premises, and to all renewals,
modifications, replacements and extensions of such Mortgages; PROVIDED, HOWEVER,
that, the subordination herein contained shall not be effective unless all
Mortgagees shall execute and deliver a subordination and non-disturbance
agreement ("SNDA") in favor of Tenant substantially in the form attached hereto
as EXHIBIT "D". Notwithstanding anything to the contrary in this Lease, Tenant's
obligations under this Lease shall be contingent upon (and only Tenant shall
have the right to waive such contingency) Tenant and all Mortgagees executing an
SNDA prior to the Commencement Date.
(b) Notwithstanding the foregoing, if any Mortgagee elects to have this
Lease superior to its Mortgage and states its election in its Mortgage or by
separate recorded instrument, then this Lease shall be superior to such
Mortgage.
20. ASSIGNMENT AND SUBLETTING.
(a) Without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed, Tenant may not assign this
Lease or any of Tenant's rights hereunder or sublet all or any part of the
Premises; PROVIDED, HOWEVER, that Tenant may assign this Lease or sublet all or
any portion of the Premises, without the requirement of any consent by Landlord,
to any successor corporation to Tenant, by way of merger, consolidation or other
corporate reorganization, or to any parent, subsidiary or affiliate of Tenant,
or to any party acquiring all or substantially all of Tenant's assets, or to any
party acquiring and continuing that portion of Tenant's business operations
conducted at or from the Premises.
(b) Any subtenant of all or any portion of the Premises shall have the
right, at its election, to cure any default by Tenant under this Lease. If any
such subtenant shall cure all curable defaults by Tenant hereunder, such
subtenant's possession and use shall not be disturbed by Landlord so long as the
subtenant performs and satisfies each and every duty and obligation under its
sublease, the subtenant attorns to Landlord, and all subsequent defaults by
Tenant are either cured by such subtenant or are uncurable. If such subtenant
does not cure the defaults of Tenant as described herein, Landlord may exercise
its rights permitted by PARAGRAPH 26 of this Lease.
(c) Landlord may assign its interest under the Lease to any entity
controlled by Landlord or a member of Landlord's immediate family; PROVIDED,
HOWEVER, Landlord shall remain fully liable for the performance of its
obligations under the Lease.
21. ESTOPPEL CERTIFICATES.
(a) Tenant, from time to time upon TEN (10) DAYS prior request by
Landlord, shall execute, acknowledge and deliver to Landlord, or to a person
designated by Landlord, a certificate of Tenant stating that this Lease is
unmodified and in full effect (or, if there have been modifications, that this
Lease is in full effect as modified, and setting forth such modifications) and
the dates to which Rent and other sums payable hereunder have been paid, and
either stating that to the knowledge of the signer of such certificate no
default exists hereunder or specifying each such default of which the signer has
knowledge. Landlord, at Landlord's cost and expense, shall cause such
certificate to be prepared for execution by Tenant. Any such certificate may be
relied upon by any prospective Mortgagee or purchaser of the Premises.
(b) Landlord, from time to time upon TEN (10) DAYS prior request by
Tenant, shall execute, acknowledge and deliver to Tenant, or to a person
designated by Tenant, a certificate of Landlord stating that this Lease is
unmodified and in full effect (or, if there have been modifications, that this
Lease is in full effect as modified and setting forth such modifications) and
the dates to which Rent and other sums payable hereunder have been paid, and
either stating that to the knowledge of the signer of such certificate no
default exists hereunder or specifying each such default of which the signer has
knowledge.
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Tenant, at Tenant's cost and expense, shall cause such certificate to be
prepared for execution by Landlord. Any such certificate may be relied upon by
any prospective Mortgagee, assignee of this Lease, or subtenant of all or any
portion of the Premises.
22. SURRENDER. Upon the expiration of the term of, or earlier
termination of, this Lease, Tenant shall peaceably and quietly leave, yield up
and surrender to Landlord the Premises, in a condition at least as good as the
condition the Premises were in on the Commencement Date, excepting only repairs
and maintenance required to be performed by Landlord, reasonable or ordinary
wear and tear, depreciation and obsolescence, and damage by fire, or other
casualty or condemnation.
23. REMOVAL OF TENANT'S PROPERTY. On or before the Expiration Date, or
within TEN (10) DAYS thereafter, Tenant may remove all personal property, trade
fixtures and fixtures (including, without limitation, explosion-proof wiring
devices and other specialized fixtures), which Tenant has installed on or
affixed or attached to, or otherwise located on, the Premises; PROVIDED,
HOWEVER, that Tenant shall promptly restore the Premises to substantially their
condition immediately preceding the time the property was installed on, affixed
or attached to, or otherwise located on, the Premises.
24. HOLDING OVER. If Tenant remains in possession of the Premises after
expiration of the term of this Lease without any express written agreement by
Landlord (the "HOLDOVER COMMENCEMENT DATE"), Tenant shall be and become a tenant
at will and the Rent payable shall be the Rent that was in effect as of the
Expiration Date; PROVIDED, THAT, every six (6) months following the Holdover
Commencement Date, the Rent shall be adjusted for the next six (6) months to
reflect the increase, if any, in the CPI, as measured from the Holdover
Commencement Date. All of the terms and conditions of this Lease shall continue
to be in full force and effect.
25. RIGHT OF ENTRY. Tenant shall permit Landlord and Landlord's
representatives, agents and employees to enter the Premises, during normal
business hours with FORTY-EIGHT (48) HOURS prior notice, for the purposes of
inspecting the Premises, showing the Premises to prospective purchasers and
Mortgagees, making any repairs or replacements or performing any maintenance on
the Premise. Landlord shall also have the right to place signs, of reasonable
size and in reasonable locations, advertising the Premises or any part of the
Premises "for sale" or "for rent", PROVIDED, HOWEVER, that such signs can only
be placed on the Premises during the SIX (6) MONTH PERIOD prior to the
Expiration Date.
26. DEFAULT.
(a) The following events shall constitute events of default by Tenant
under this Lease:
(i) if Tenant shall fail to pay when due any Rent or other payment of
money to be made by Tenant hereunder and shall not cure such failure within
TEN (10) DAYS after Landlord gives Tenant written notice thereof;
(ii) if Tenant shall violate or breach, or shall fail fully and
completely to observe, keep, satisfy, perform and comply with, any
agreement, term, covenant, condition, requirement, restriction or provision
of this Lease (other than the payment of Rent or any other payment to be
made by Tenant), and shall not cure such failure within THIRTY (30) DAYS
after Landlord gives Tenant written notice thereof, or, if such failure
shall be incapable of cure within THIRTY (30) DAYS, if Tenant shall not
commence to cure such failure within such THIRTY (30) DAY period and
continuously prosecute the performance of the same to completion with due
diligence; or
(iii) if Tenant becomes insolvent as defined in the Uniform Commercial
Code under the Laws applicable to this Lease or makes an assignment for the
benefit of creditors; or if any action is brought by Tenant seeking its
dissolution or liquidation of its assets or seeking the appointment of a
trustee, interim trustee, receiver or other custodian for any of its
property; or if
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Tenant commences a voluntary proceeding under the Federal Bankruptcy Code;
or if any reorganization or arrangement proceeding is instituted by Tenant
for the settlement, readjustment, composition or extension of any of its
debts upon any terms; or if any action or petition is otherwise brought by
Tenant seeking similar relief or alleging that it is insolvent or unable to
pay its debts as they mature; or if any action is brought against Tenant
seeking its dissolution or liquidation of any of its assets, or seeking the
appointment of a trustee, interim trustee, receiver or other custodian for
any of its property, and any such action is consented to or acquiesced in
by Tenant or is not dismissed within ONE HUNDRED TWENTY (120) DAYS after
the date upon which it was instituted; or if any proceeding under the
Federal Bankruptcy Code is instituted against Tenant and (i) an order for
relief is entered in such proceeding, or (ii) such proceeding is consented
to or acquiesced in by Tenant or is not dismissed within ONE HUNDRED TWENTY
(120) DAYS after the date upon which it was instituted; or if any
reorganization or arrangement proceeding is instituted against Tenant for
the settlement, readjustment, composition or extension of any of its debts
upon any terms, and such proceeding is consented to or acquiesced in by
Tenant or is not dismissed within ONE HUNDRED TWENTY (120) DAYS after the
date upon which it was instituted; or if any action or petition is
otherwise brought against Tenant seeking similar relief or alleging that it
is insolvent, unable to pay its debts as they mature or generally not
paying its debts as they become due, and such action or petition is
consented to or acquiesced in by Tenant or is not dismissed within ONE
HUNDRED TWENTY (120) DAYS after the date upon which it was brought.
(b) Upon the occurrence of any event of default by Tenant, Landlord may
pursue any one or more of the following remedies, separately or concurrently or
in any combination, without any notice (except as specifically provided below)
or demand whatsoever and without prejudice to any other remedy which it may have
for possession of the Premises or for arrearages in Rent or other amounts
payable by Tenant:
(i) Landlord may terminate this Lease by giving Tenant written notice
of termination, in which event Tenant shall immediately quit and vacate the
Premises and deliver and surrender possession of the Premises to Landlord,
and this Lease shall be terminated at the time designated by Landlord in
its notice of termination to Tenant;
(ii) with or without terminating this Lease, Landlord may enter upon
and take possession of the Premises and expel or remove Tenant and any
other person who may be occupying the Premises, by force if necessary,
without being liable for prosecution or any claim for damages;
(iii) Landlord may re-lease the Premises or any part thereof, at
market-rate rent and on such terms and conditions as are customary for
similar leases, in which event Tenant shall pay to Landlord on demand any
deficiency that may arise by reason of such releasing;
(iv) Landlord may do whatever Tenant is obligated to do under the
terms of this Lease, in which event Tenant shall reimburse Landlord on
demand for any reasonable and actual expenses which Landlord may incur in
thus effecting satisfaction and performance of or compliance with Tenant's
duties and obligations under this Lease, and the amounts so expended by
Landlord shall bear interest at the Default Rate from the date expended by
Landlord until paid.
(c) Landlord's pursuit of any one or more of the remedies stated in
SUBPARAGRAPH (b), above shall not preclude pursuit of any other remedy or
remedies provided in this Lease or any other remedy or remedies provided for or
allowed by law or in equity, separately or concurrently or in any combination.
Landlord's pursuit of any one or more of the remedies provided in this Lease
shall not constitute an election of remedies excluding the election of another
remedy or other remedies, or a forfeiture or waiver of any Rent or other amounts
payable under this Lease by Tenant or of any damages or other sums accruing to
Landlord by reason of Tenant's failure to fully and completely keep, observe,
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perform, satisfy and comply with all of the agreements, terms, covenants,
conditions, requirements, provisions and restrictions of this Lease. No action
taken by or on behalf of Landlord shall be construed to be an acceptance of a
surrender of this Lease. Landlord's forbearance in pursuing or exercising one or
more of its remedies shall not be deemed or construed to constitute a waiver of
any event of default or of any remedy. No waiver by Landlord of any right or
remedy on one occasion shall be construed as a waiver of that right or remedy on
any subsequent occasion or as a waiver of any other right or remedy then or
thereafter existing. No failure of Landlord to pursue or exercise any of
Landlord's powers, rights or remedies or to insist upon strict and exact
compliance by Tenant with any agreement, term, covenant, condition, requirement,
provision or restriction of this Lease, and no custom or practice at variance
with the terms of this Lease, shall constitute a waiver by Landlord of the right
to demand strict and exact compliance with terms and conditions of this Lease.
No termination of this Lease shall affect Landlord's right to collect Rent for
the period prior to termination.
(d) In the event Landlord shall violate or breach, or shall fail fully
and completely to observe, keep, satisfy, perform and comply with, any
agreement, term, covenant, condition, requirement, restriction or provision of
this Lease, and shall not cure such failure within THIRTY (30) DAYS after Tenant
gives Landlord written notice thereof, or, if such failure shall be incapable of
cure within THIRTY (30) DAYS, if Landlord shall not commence to cure such
failure within such THIRTY (30) DAY period and continuously prosecute the
performance of the same to completion with due diligence, then Tenant may
terminate this Lease, pursue any remedy or remedies provided in this Lease, or
pursue any other remedy or remedies provided for or allowed by law or in equity,
separately or concurrently or in any combination. Tenant's pursuit of any one or
more of the remedies provided in this Lease shall not constitute an election of
remedies excluding the election of another remedy or other remedies, or a
forfeiture or waiver of any relief. Tenant's forbearance in pursuing or
exercising one or more of its remedies shall not be deemed or construed to
constitute a waiver of any event of default or of any remedy. No waiver by
Tenant of any right or remedy on one occasion shall be construed as a waiver of
that right or remedy on any subsequent occasion or as a waiver of any other
right or remedy then or thereafter existing. No failure of Tenant to pursue or
exercise any of Tenant's powers, rights or remedies or to insist upon strict and
exact compliance by Landlord with any agreement, term, covenant, condition,
requirement, provision or restriction of this Lease, and no custom or practice
at variance with the terms of this Lease, shall constitute a waiver by Tenant of
the right to demand strict and exact compliance with terms and conditions of
this Lease.
27. ATTORNEYS' FEES. In any action to enforce the rights of either
party hereunder, the prevailing party, as determined by the arbitrator, court or
other tribunal before which such action is brought, shall be entitled to recover
the costs and expenses of such party, plus reasonable attorneys' fees, incurred
in investigating, prosecuting or defending such action. Reasonable attorney's
fees shall be constructed to be the greater of FIFTEEN PERCENT (15%) of any
amount recovered or actual attorney's fees incurred.
28. QUIET ENJOYMENT. Tenant shall, subject to the terms and conditions
of this Lease, peaceably and quietly hold and enjoy the Premises during the term
of this Lease without hindrance or interruption, so long as Tenant fully and
completely keeps, observes, performs, satisfies and complies with all of the
agreements, terms, covenants and conditions, requirements, provisions and
restrictions of this Lease to be kept, observed, performed, satisfied and
complied with by Tenant under this Lease and pays all Rent and other amounts
required to be paid by Tenant under this Lease.
29. NO MERGER. There shall be no merger of this Lease or the leasehold
estate created hereby with the fee simple estate in the Premises or any part
thereof, by reason of the fact that the same person or entity may acquire, own
or hold, directly or indirectly, this Lease or the leasehold estate created
hereby or any interest in this Lease or such leasehold estate, and the fee
simple estate in the Premises or any interest in such fee simple estate; and
this Lease shall not be terminated except as expressly provided herein.
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30. BROKER AND COMMISSION.
(a) All negotiations relative to this Lease and the leasing of the
Premises contemplated by and provided for in this Lease have been conducted by
and between Landlord and Tenant without the intervention of any person or other
party as agent or broker, with the exception of the following: (i) N/A
who represents Landlord (hereinafter called "LANDLORD'S BROKER"); and (ii)
N/A who represents Tenant (hereinafter called "TENANT'S BROKER").
Landlord's Broker shall be paid a commission of $ N/A by Landlord in
accordance with Landlord's separate agreement with Landlord's Broker. Tenant's
Broker shall be paid a commission of $ N/A by Landlord in accordance
with Landlord's separate agreement with Tenant's Broker.
(b) Landlord and Tenant warrant and represent to each other that there
are and will be no broker's commissions or fees payable in connection with this
Lease or the leasing of the Premises by reason of their respective dealings,
negotiations or communications except the commission payable to Landlord's
Broker and Tenant's Broker as set forth in SUBPARAGRAPH (a) IN THIS PARAGRAPH
30. Landlord and Tenant shall, and do each hereby indemnify, defend and hold
harmless each of the others from and against the claims, demands, actions and
judgments of any and all brokers, agents and other intermediaries alleging a
commission, fee or other payment to be owing by reason of their respective
dealings, negotiations or communications in connection with this Lease or the
leasing of the Premises.
31. MEMORANDUM OF LEASE. Contemporaneously with the execution and
delivery of this Lease, Landlord and Tenant will execute and deliver a
memorandum of this Lease and the options described therein, in recordable form,
to be filed in the York County, Pennsylvania records, substantially in the form
as attached hereto as EXHIBIT "E". Landlord shall cooperate with Tenant and
execute all other documents reasonably necessary to record a memorandum of this
Lease, or otherwise effectuate the intent of this paragraph.
32. RIGHT OF PARTICIPATION. Tenant shall have the right of
participation in any sale, transfer or other conveyance of the Premises as more
particularly described on EXHIBIT "F" attached hereto and incorporated herein.
33. RIGHT OF FIRST REFUSAL; OPTION TO PURCHASE. Tenant shall have the
option to purchase Premises in accordance with the terms, provisions and
conditions of EXHIBIT "G" attached hereto and incorporated herein. Tenant shall
have the further right of first refusal to purchase the Premises in accordance
with the terms, provisions and conditions of EXHIBIT "H" attached hereto and
incorporated herein.
34. ADDITIONAL SIGNATORY. Additional Signatory is the current spouse of
Landlord. Additional Signatory acknowledges that she has a financial interest in
Landlord, and Additional Signatory will benefit from the execution and delivery
of the Lease. Therefore, in consideration of certain agreements made by Tenant
to Landlord in the Lease, and the payment of One Dollar ($1.00) to the
Additional Signatory, the Additional Signatory agrees to execute all documents
and do all things necessary to effectuate the intent of this Lease, including
but not limited to, the execution of any deeds or other closing documents
related to Tenants' Right of Participation, Right of First Refusal or Option to
Purchase described in PARAGRAPHS 32 AND 33.
35. LANDLORD'S DELIVERIES. Within FORTY-FIVE (45) days following the
date of the Lease, Landlord shall deliver to Tenant the following: (i) a SNDA
executed by all Mortgagees and Landlord in favor of Tenant substantially similar
to the form attached hereto as EXHIBIT "D" and recorded (and Landlord shall bear
the cost of such recording) in the property records of the York County, or other
appropriate records; (ii) a title policy on the Property with no exceptions
other than those listed on Schedule B, Section II of the title commitment from
Fidelity National Title Insurance Company of Pennsylvania, Commitment No.
5412-725379, effective date 5/12/98 (the "TITLE COMMITMENT"); (iii)
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evidence that the taxes and other charges referred to in paragraphs 4, 5 and 15
of Schedule B, Section I of the Title Commitment have been paid in full; (iv) a
copy of the title exception recorded in Deed Book 167, Page 574 and referred to
in paragraph 9 of Schedule B, Section II of the Title Commitment; (v) evidence
that Farmbrook Industrial Park has (1) approved the improvements to be placed on
the portion of the Premises which lies in such park or (2) agreed to remove all
portions of the Premises from lying in such park; (vi) a copy of the subdivision
plan for the Premises signed and approved by Manchester Township; (vii) a fully
executed copy of the "Clarification Letter and Agreement as to Confirmatory
Deed" by and between Landlord and Sinking Springs Farms, Inc. recorded (and
Landlord shall bear the cost of such recording) within seven (7) days of the
date of this Lease in the property records of the York County, or other
appropriate records; (viii) a fully-executed copy of the Memorandum of Lease
attached hereto as EXHIBIT "E" recorded (and Landlord shall bear the cost of
such recording) within seven (7) days of the date of this Lease in the property
records of the York County, or other appropriate records; and (ix) a
fully-executed copy of an "Agreement Modifying Letter Agreement" executed by
Industrial Distribution Group, Inc., Landlord, Tenant, Xxxxxxxxx X. Xxxxxxx,
Xx., Xxxx X. Xxxxxxx Trust No. 1, and Xxxx X. Xxxxxxx Trust No. 2. in a form to
be supplied by Landlord (the items set forth in clause (i), (ii), (iii), (iv),
(v), (vi), (vii), (viii) and (ix) shall be collectively referred to as
"LANDLORD'S DELIVERIES"). If Landlord's Deliveries are not made within the time
period prescribed by this paragraph or if Tenant reasonably objects to the title
exception described in clause (iv) above, then Tenant shall have the right to
terminate this Lease any time prior to the Commencement Date.
36. GUARANTY. Contemporaneously with the execution of the Lease,
Industrial Distribution Group, Inc., a Delaware corporation, shall execute a
guaranty substantially in the form attached as EXHIBIT "I".
37. GENERAL PROVISIONS.
(a) NOTICES. Whenever any notice, demand or request is required or
permitted under this Lease, such notice, demand or request shall be in writing
and shall be delivered by hand, be sent by registered or certified mail, postage
prepaid, return receipt requested, or be sent by nationally recognized
commercial courier for next business day delivery, to the address for each party
set forth below their respective executions hereof, or to such other addresses
as are specified by written notice given in accordance herewith, or shall be
transmitted by facsimile to the number for each party set forth below their
respective executions hereof, or to such other numbers as are specified by
written notice given in accordance herewith. All notices, demands or requests
delivered by hand shall be deemed given upon the date so delivered; those given
by mailing as hereinabove provided shall be deemed given on the date of deposit
in the United States Mail; those given by commercial courier as hereinabove
provided shall be deemed given on the date of deposit with the commercial
courier; and those given by facsimile shall be deemed given on the date of
facsimile transmittal. Tenant designates and appoints, as its agent to receive
notice of all dispossessory or distraint proceedings and all notices required
under this Lease, the person in charge of the Premises at the time such notice
is given.
(b) BINDING EFFECT. This Lease shall be binding upon and enforceable
against, and shall inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
(c) HEADINGS. The use of headings, captions and numbers in this Lease
is solely for the convenience of identifying and indexing the various provisions
in this Lease and shall in no event be considered otherwise in construing or
interpreting any provision in this Lease.
(d) EXHIBITS. Each and every exhibit referred to or otherwise mentioned
in this Lease is attached to this Lease and is and shall be construed to be made
a part of this Lease by such reference or other mention at each point at which
such reference or other mention occurs, in the same manner and with the same
effect as if each exhibit were set forth in full and at length every time it is
referred to or otherwise mentioned.
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(e) DEFINED TERMS. Capitalized terms used in this Lease shall have the
meanings ascribed to them at the point where first defined, irrespective of
where their use occurs, with the same effect as if the definitions of such terms
were set forth in full and at length every time such terms are used.
(f) PRONOUNS. Wherever appropriate in this Lease, personal pronouns
shall be deemed to include the other genders and the singular to include the
plural.
(g) SEVERABILITY. If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall ever be
held to be invalid or unenforceable, then in each such event the remainder of
this Lease or the application of such term, covenant, condition or provision to
any other person or any other circumstance (other than those as to which it
shall be invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(h) NON-WAIVER. Failure by any party to complain of any action,
non-action or breach of any other party shall not constitute a waiver of any
aggrieved party's rights hereunder. Waiver by any party of any right arising
from any breach of any other party shall not constitute a waiver of any other
right arising from a subsequent breach of the same obligation or for any other
default, past, present or future.
(i) RIGHTS CUMULATIVE. All rights, remedies, powers and privileges
conferred under this Lease on the parties shall be cumulative of and in addition
to, but not restrictive of or in lieu of, those conferred by law.
(j) TIME OF ESSENCE. Time is of the essence of this Lease. Anywhere a
day certain is stated for payment or for performance of any obligation, the day
certain so stated enters into and becomes a part of the consideration for this
Lease. If any date set forth in this Lease shall fall on, or any time period set
forth in this Lease shall expire on, a day which is a Saturday, Sunday, federal
or state holiday, or other non-business day, such date shall automatically be
extended to, and the expiration of such time period shall automatically be
extended to, the next day which is not a Saturday, Sunday, federal or state
holiday or other non-business day. The final day of any time period under this
Lease or any deadline under this Lease shall be the specified day or date, and
shall include the period of time through and including such specified day or
date.
(k) APPLICABLE LAW AND FORUM SELECTION. This Lease shall be governed by
and construed in accordance with the laws of the State of Georgia.
(l) ENTIRE AGREEMENT. This Lease contains the entire agreement of the
Parties with respect to the subject matter hereof, and all representations,
warranties, inducements, promises or agreements, oral or otherwise, between the
Parties not embodied in this Lease shall be of no force or effect.
(m) MODIFICATIONS. This Lease shall not be modified or amended in any
respect except by a written agreement executed by the parties in the same manner
as this Lease is executed.
(n) COUNTERPARTS. This Lease may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
(o) JOINT AGREEMENT. Landlord and Tenant recognize that this is a joint
agreement drafted by both Parties and no provision shall be construed against a
Party.
(Signatures continued on next page)
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(Signatures continued from preceding page)
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed and sealed, all effective as of the day and year first written above.
LANDLORD:
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx (SEAL)
Date of Landlord's Execution:
----------------------------------------
Initial address for notices:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number:
ADDITIONAL SIGNATORY FOR LANDLORD:
XXXXXXXXX X. XXXXXXX
/s/ Xxxxxxxxx X. Xxxxxxx (SEAL)
Date of Additional Signatory's Execution:
----------------------------------------
Initial address for notices:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number:
(Signatures continued on next page)
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(Signatures continued from preceding page)
TENANT:
XXXXXXX INDUSTRIAL SUPPLY CO.
By: /s/ Xxxxxxxx X. Xxxxx (SEAL)
Name: Xxxxxxxx X. Xxxxx
Title: President
(CORPORATE SEAL)
Date of Tenant's Execution:
July 28, 1998
Initial address for notices:
0000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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INDEX TO EXHIBITS
EXHIBIT "A" ................................................ Description of Land
EXHIBIT "A-1" ............................................. Permitted Exceptions
EXHIBIT "B" ........................................................ Work Letter
EXHIBIT "C" .............................. Definitions Made a Part of This Lease
EXHIBIT "D" ............ Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT "E" ........... Memorandum of Lease, Options and Rights of First Refusal
EXHIBIT "F" ................................... Right of Participation by Tenant
EXHIBIT "G" ................................................. Option to Purchase
EXHIBIT "H" ............................................. Right of First Refusal
EXHIBIT "I" ........................................................... Guaranty
EXHIBIT "J" ......... Clarification Letter and Agreement as to Confirmatory Deed
