Exhibit 10.10
LEASE AGREEMENT
Between
CRICIPECPA LP
as Lessor
and
INTERNATIONAL PLASTICS AND EQUIPMENT CORP.
as Lessee
Dated as of
May 21, 2004
Pennsylvania Lease Agreement
TABLE OF CONTENTS
1. Demise; Title; Condition..................................................1
2. Term......................................................................1
3. Rent......................................................................2
4. Use.......................................................................3
5. Net Lease; Nonterminability...............................................4
6. Taxes and Other Charges; Law and Agreements...............................5
7. Liens; Subordinations.....................................................7
8. Indemnification; Fees and Expenses........................................8
9. Environmental Matters.....................................................9
10. Maintenance and Repair; Additions........................................13
11. Trade Fixtures...........................................................15
12. Condemnation and Casualty................................................15
13. Insurance................................................................18
14. Financial Statements; Certificates.......................................21
15. Purchase Procedure.......................................................22
16. Quiet Enjoyment..........................................................23
17. Survival.................................................................24
18. Subletting; Assignment...................................................24
19. Advances by Lessor.......................................................24
20. Conditional Limitations -- Events of Default and Remedies................25
21. Granting of Easements, Etc...............................................29
22. No Plan Assets...........................................................29
23. Rejectable Offers; Other Rent Payments; Rent Reset.......................29
Pennsylvania Lease Agreement
24. Notices..................................................................37
25. Estoppel Certificates....................................................38
26. No Merger................................................................38
27. Surrender................................................................39
28. Separability.............................................................39
29. Signs; Showing...........................................................39
30. Waiver of Trial by Jury..................................................39
31. Recording................................................................39
32. Miscellaneous; Limited Recourse..........................................40
33. Lessee Representations...................................................41
34. No Lessor Representations or Warranties..................................45
35. Intentionally Omitted....................................................45
36. Additional Provisions Relating to Leased Property........................45
APPENDIX I Definitions
SCHEDULE A Description of Land
SCHEDULE B Lease Data
SCHEDULE C Certain Definitions
SCHEDULE D Permitted Encumbrances
SCHEDULE E Trade Fixtures
SCHEDULE F Subordination, Non-Disturbance and Attornment Agreement
SCHEDULE G Estoppel Letter
SCHEDULE H Market Rent
SCHEDULE I Intentionally Omitted
SCHEDULE J Intentionally Omitted
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THIS LEASE, dated as of the date specified in Item 1 of Schedule B (as amended
from time to time this Lease), between the Lessor specified in Item 2 of
Schedule B (Lessor), as lessor, having an office at the address set forth in
Item 2 of Schedule B and the Lessee specified in Item 3 of Schedule B (herein,
together with any entity succeeding thereto by consolidation, merger or
acquisition of its assets substantially as an entirety, called Lessee), having
an address at the address set forth in Item 3 of Schedule B, both parties
intending to be legally bound.
Capitalized terms not otherwise defined when they first appear are defined in
Appendix I.
1. Demise; Title; Condition. Lessor hereby leases to Lessee, and Lessee
hereby leases from Lessor, subject to the terms hereof, all of Lessor's right,
title and interest in (i) the parcel of land (the Land) described in Schedule A
hereto, (ii) the Improvements and (iii) all easements, rights and appurtenances
thereto (the Land, Improvements and all such easements, rights and appurtenances
collectively called the Leased Property).
The Leased Property is leased in its present condition without representation or
warranty by Lessor. Lessee has examined the Leased Property and Lessor's title
thereto, and has found the same to be satisfactory for all purposes. Lessee
shall in no event have any recourse against Lessor for any defect in Lessor's
title to the Leased Property or any interest of Lessee therein unless such
defect is caused by the wrongful act or omission of Lessor.
Subject to the provisions of this paragraph, Lessor hereby assigns, without
recourse of warranty whatsoever, to Lessee, all Warranties and Permits. Such
assignment shall remain in effect until the expiration or termination of this
Lease and thereafter shall be null and void. Lessee shall notify in writing each
Governmental Authority that has issued any Permit in the manner required by each
such Governmental Authority of Lessee's occupancy of the Leased Property. Lessor
shall also retain the right to enforce any Warranties assigned in the name of
Lessee if an Event of Default exists. Lessor hereby agrees to execute and
deliver, at Lessee's sole expense, such further documents, including powers of
attorney, as Lessee may reasonably request in order that Lessee may have the
full benefit of the assignment effected or intended to be effected by this
paragraph. Upon the termination of this Lease, the Warranties and Permits shall
automatically revert to Lessor. The foregoing provision of reversion shall be
self-operative and no further instrument of reassignment shall be required. In
confirmation of such reassignment Lessee shall, at its sole expense, execute and
deliver promptly any certificate or other instrument which Lessor may reasonably
request. Any monies collected by Lessee under any of the Warranties if an Event
of Default exists shall be held in trust by Lessee and promptly paid over to
Lessor.
2. Term.
(a) Subject to the provisions hereof, Lessee shall have and hold the
Leased Property for a term (the Basic Term) which shall begin on the
commencement date specified in Item 4 of Schedule B (the Commencement Date) and
end at midnight on the basic term expiration date set forth in Item 5 of
Schedule B (the Basic Term Expiration Date) (provided that the Basic Term
Expiration Date shall be extended to the Year 15 Expiration Date and the Basic
Term shall run through the Year 15 Expiration Date if Lessee elects a Rent Reset
Option under paragraph (a) of Article 23 and the Basic Term Expiration Date
shall be extended to the Year 20 Expiration Date and the Basic Term shall run
through the Year 20 Expiration Date if Lessee also elects the Year
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15 Rent Reset Option under paragraph (c) of Article 23) unless sooner terminated
or extended as hereinafter expressly provided.
(b) So long as Lessee has previously extended the Basic Term through the
Year 20 Expiration Date and no Event of Default shall have occurred and be
continuing on the last day of the then current Term, Lessee may elect to extend
and renew the Term for one (1) additional term for the period of time to be
calculated as provided in paragraph (d) of Article 23 (the First Renewal Term)
and, thereafter, (or if Lessee makes (I) a Final Rent Payment pursuant to
paragraph (b) of Article 23 or (II) a Year 15 Rejectable Offer in accordance
with paragraph (c) of Article 23 which is subsequently rejected by Lessor, in
lieu thereof) four (4) additional terms of five (5) years each (Renewal Terms).
Lessee's right to elect to extend for the First Renewal Term is subject to
Lessee's compliance with the terms and conditions contained in paragraph (d) of
Article 23. Each such election shall be exercised by Lessee not less than 365
days prior to the expiration of the then current Term (provided that (i) the
exercise of Lessee's option for the First Renewal Term must occur no later than
the date on which Lessee gives or is deemed to have given the Year 20 Notice
pursuant to paragraph (d) of Article 23 and (ii) such option shall not be
available if the Term expires prior to the Year 20 Expiration Date unless Lessee
(x) elects to make a Final Rent Payment under paragraph (b) of Article 23 and
exercises its option for the first of its four (4) additional five (5) year
Renewal Terms no later than the date on which Lessee gives or is deemed to have
given the 10 Year Notice or (y) makes a Year 15 Rejectable Offer in accordance
with paragraph (c) of Article 23 which is subsequently rejected by Lessor and
Lessee exercises its option for the first of its four (4) additional five (5)
year Renewal Terms no later than the date on which Lessee gives or is deemed to
have given the 15 Year Notice), by written notice to Lessor, which notice shall
include the name and address of Lessee's designated appraiser for determination
of (x) in the case of the First Renewal Term, the remaining economic useful life
of the Leased Property as of the Basic Term Expiration Date, and (y) in the case
of the last four (4) Renewal Terms, the fair market rent in accordance with
Schedule H of this Lease. Either party, upon request of the other, will execute
and acknowledge, in form suitable for recording, an instrument confirming any
such extension. Time shall be of the essence with respect to the giving of
notice by Lessee of its election to extend any Term.
3. Rent.
(a) During the Term, Lessee shall pay the rent provided in Item 7 of
Schedule B (Basic Rent) and all Additional Rent (as defined in paragraph (b) of
this Article 3) to Lessor's Mortgagee, if any (or to such other party as
Lessor's Mortgagee may from time to time specify in writing), or, if there is no
Lessor's Mortgagee, to Lessor (or to such other party as Lessor may from time to
time specify in writing) by bank wire transfer of immediately available federal
funds before 11:00 A.M., Eastern Time, at such place, within the continental
United States, as Lessor may from time to time designate to Lessee in writing.
Basic Rent shall be due and payable by Lessee in installments in the amounts set
forth in Item 7 of Schedule B and (except for the first payment of Basic Rent
which shall be due and payable on the date of commencement of the Basic Term)
shall be due and payable on the dates specified in Item 7 of Schedule B
(Installment Payment Dates) and shall constitute Basic Rent for the periods
specified in said Item 7. If any Installment Payment Date falls on a day which
is not a Business Day, Basic Rent shall be due and payable on the immediately
prior Business Day.
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(b) All amounts which Lessee is required to pay or discharge pursuant to
this Lease in addition to Basic Rent (including, without limitation, any amounts
payable as the purchase price for the Leased Property and any amount payable as
liquidated damages hereunder), and amounts representing costs, expenses,
liabilities and obligations due to or incurred by or on behalf of Lessor as a
result of or in connection with the enforcement of any remedy or the exercise of
any right by or on behalf of Lessor), and all amounts representing all other
obligations of Lessee hereunder which could be discharged by Lessee with the
payment of money (including, by way of example, pursuant to a contract for
performance of such obligation with a third party), and after any applicable
notice and/or cure periods whether or not Lessor or any other person has
incurred any expense in connection therewith the exercise of any right by or on
behalf of Lessor, together with every penalty, overdue interest and cost which
may be added for nonpayment or late payment thereof, shall constitute additional
rent hereunder (Additional Rent). If Lessee fails to perform any obligation
hereunder within the time required hereunder which could be discharged by Lessee
by the payment of money (including, by way of example, pursuant to a contract
for performance of such obligation with a third party), and after any applicable
notice and/or cure periods then, whether or not Lessor or any other person has
incurred any expense in connection therewith in the exercise of any right by or
on behalf of Lessee, immediately upon demand by Lessor, Lessee shall owe, as
Additional Rent, hereunder the amount required to discharge such obligation,
which amount shall be immediately due and payable. In the event of any failure
by Lessee to pay or discharge any Additional Rent, Lessor shall have all rights,
powers and remedies provided for herein or by law or otherwise in the case of
nonpayment of Basic Rent. Lessee shall pay Additional Rent directly to the
Person entitled thereto. Lessee also covenants to pay to Lessor on demand as
Additional Rent, interest at a rate (the Overdue Rate), calculated on the basis
of a 360-day year of twelve equal months, equal to the greater of (i) nine
percent (9%) per annum or (ii) three and one-half percent (3.5%) per annum over
the prime commercial lending rate announced from time to time by Citibank, N.A.,
or its successor, or if no longer in existence, a banking institution selected
by Lessor with a net worth of at least $5,000,000,000, but in no event greater
than the maximum rate not prohibited by applicable law, on (i) all overdue
installments of Basic Rent from the due date thereof until paid in full, (ii)
all overdue amounts of Additional Rent, arising out of obligations which Lessor
shall have paid on behalf of Lessee pursuant hereto from the date of such
payment by Lessor until paid in full and (iii) each other sum required to be
paid by Lessee hereunder which is overdue, from the date such sum was due until
the date received by the Person entitled thereto. Lessee also covenants to pay
to Lessor on demand as Additional Rent, a late fee equal to five percent (5%) of
any Basic Rent or Additional Rent which has not been paid within five (5) days
after the same is due. In the event any Basic Rent or Additional Rent is
collected by or through an attorney, as Additional Rent, Lessee agrees to pay
all costs of collection, including, but not limited to attorney's fees and to
reimburse Lessor for any costs of collection, including without limitation,
attorney's fees, incurred by Lessor's Mortgagee.
4. Use. Except as set forth below in this Article 4, Lessee shall
continuously use the Leased Property as a manufacturing facility for its
business. Any other use and the discontinuance of such use will be subject to
the approval of Lessor, such approval not to be unreasonably withheld, provided
that such other use or discontinuance (i) is consistent with the business uses
of other properties located in the same general area as the Leased Property,
(ii) does not result in, or increase the likelihood of, a decline in the value
of the Leased Property or materially increase the risk of loss to Lessor (such
as by an increase in the potential exposure to
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hazardous waste issues), (iii) does not violate any Legal Requirements, and (iv)
does not impair Lessee's ability to obtain the policies of insurance required to
be maintained by Lessee hereunder. Without limiting the foregoing, Lessee shall
not fail to continuously use and operate the Leased Property for the use
permitted hereunder if the Leased Property relies at any time upon so-called
"grandfathering" under applicable zoning or similar land use laws and such
failure could jeopardize the right to use the Leased Property in the future for
the use permitted hereunder or the right to Restore the Improvements to their
then-current condition after a Casualty.
5. Net Lease; Nonterminability.
(a) This Lease is an absolutely "net lease" and Lessee shall pay all Basic
Rent and Additional Rent without notice, demand, counterclaim, set-off,
deduction, or defense, and without abatement, suspension, deferment, diminution
or reduction, free from any charges, assessments, impositions, expenses or
deductions of any and every kind or nature whatsoever. All costs, expenses and
obligations of every kind and nature whatsoever relating to the Leased Property
and the appurtenances thereto and the use and occupancy thereof by Lessee or
anyone claiming by, through or under Lessee as lessee hereunder which may arise
or become due during or with respect to the Term shall be paid by Lessee. Lessee
assumes the sole responsibility for the condition, use, operation, maintenance
and management of the Leased Property and Lessor shall have no responsibility in
respect thereof and shall have no liability for damage to the property of Lessee
or any sublessee of Lessee or anyone claiming by, through or under Lessee for
any reason whatsoever, unless such damage is caused by the negligence of Lessor
or Lessor's agents, contractors, invitees or employees, provided, that such
negligence shall not entitle Lessee to ▇▇▇▇▇, suspend, defer, diminish or reduce
the payment of Basic Rent and Additional Rent.
(b) Without limiting the generality of the foregoing, during the Term of
this Lease, Lessee shall perform all of the obligations of the sublessor under
any subleases affecting all or any part of the Leased Property which Lessee may
hereinafter enter into as sublessor to the extent that Lessee's failure to
perform such obligations could result in the occurrence of an Event of Default
under this Lease. Lessee acknowledges and agrees that its obligations hereunder,
including, without limitation, its obligations to pay Basic Rent and Additional
Rent, shall be unconditional and irrevocable under any and all circumstances and
shall not be subject to cancellation, termination, modification or repudiation
by Lessee. Except as expressly provided in paragraph (h) of Article 9, paragraph
(c) of Article 12, Article 20 and Article 23, this Lease shall not terminate.
Lessee shall have no right to terminate this Lease, and shall perform all
obligations hereunder, including the payment of all Basic Rent and Additional
Rent, without notice, demand, counterclaim, set-off, deduction, defense or
recoupment, and without abatement, suspension, deferment, diminution or
reduction for any reason, including, without limitation, any past, present or
future claims which Lessee may have against the Lessor, Lessor's Mortgagee,
their respective successors and assigns or any other Person for any reason
whatsoever; any defect in the Leased Property or any portion thereof, or in the
title, condition, design, construction, durability or fitness for a particular
use thereof; any damage to or destruction or loss of all or part of the Leased
Property; any restriction, deprivation (including eviction) or prevention of, or
any interference with or interruption of, any use or occupancy of the Leased
Property (whether due to any defect in or failure of Lessor's title to the
Leased Property, any lien or otherwise); any condemnation, requisition or other
taking or sale of the use, occupancy or title to the Leased
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Property; any action, omission or breach on the part of Lessor under this Lease
or under any other agreement between Lessor and Lessee, or any other
indebtedness or liability, howsoever and whenever arising, of Lessor, any
assignee of Lessor, or Lessee to any other Person, or by reason of insolvency,
bankruptcy or similar proceedings by or against Lessor, or any assignee of
Lessor, or Lessee; the inadequacy or inaccuracy of the description of the Leased
Property or the failure to demise and let to Lessee the property intended to be
leased hereby; Lessee's acquisition of ownership of the Leased Property (as to
any obligation arising prior to or incident to such acquisition and any
obligation intended to survive such acquisition including, without limitation,
the payment of the full purchase price in strict accordance with the terms
hereof); any sale or other disposition of the Leased Property; the impossibility
or illegality of performance by Lessor or Lessee or both; the failure of Lessor
to deliver possession of the Leased Property; any action of any Governmental
Authority; or any other cause, whether similar or dissimilar to the foregoing,
any Legal Requirement notwithstanding; it being the intention of the parties
hereto that all Basic Rent and Additional Rent payable by Lessee hereunder shall
continue to be payable in all events and in the manner and at the times herein
provided, without notice or demand, unless the obligation to pay the same shall
be terminated pursuant to the express provisions of this Lease.
(c) Lessee will remain obligated under this Lease in accordance with its
terms, and will not take any action to terminate, rescind or avoid this Lease
for any reason, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Lessor, or any assignee
of Lessor, or any action with respect to this Lease which may be taken by any
receiver, trustee or liquidator, or any assignee of Lessor or by any court in
any such proceeding. Lessee waives all rights at any time conferred by statute
or otherwise to quit, terminate or surrender this Lease or the Leased Property
or to any abatement, reduction, deferment or set-off of any Basic Rent,
Additional Rent or other sum payable hereunder, or for damage, loss or expense
suffered by Lessee on account of any cause referred to in this Article 5 or
otherwise.
6. Taxes and Other Charges; Law and Agreements.
(a) Lessee shall pay and discharge, on or before the last day upon which
the same may be paid without interest or penalty, all taxes, including any tax
based upon or measured by gross rentals or receipts from the Leased Property,
assessments, levies, fees, water and sewer rents, utility charges, all ground
rents on or with respect to the Leased Property and other governmental and
similar charges, including, without limitation, any payment in lieu of taxes,
maintenance charges, vault charges, and license fees for the use of the vaults,
chutes and similar areas adjoining the Land, and other governmental impositions,
whether general or special, ordinary or extraordinary, foreseen or unforeseen,
of any kind or nature whatsoever, and whether or not the same shall have been
within the express contemplation of the parties hereto, and any interest and
penalties thereon, which are levied or assessed or are otherwise due during the
Term (collectively, Taxes and Impositions) against (i) Lessor (upon Lessee
obtaining Actual Knowledge thereof) and which relate to Lessor's ownership of
the Leased Property, the use, occupancy, operation or possession of the Leased
Property or any part thereof or the transactions contemplated by this Lease,
including, if applicable, (A) state franchise or doing business taxes or the
like but only those relating to or resulting solely from Lessor's ownership of
the Leased Property and not any other property or any other activity of Lessor,
and only to the extent
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described in the second succeeding sentence and, in any event, excluding any
state income taxes (B) transfer taxes relating solely to the conveyance of the
Leased Property to or from Lessee or its affiliates or in connection with the
exercise of Lessor's or Lessor's Mortgagee's remedies after an Event of Default
hereunder, (ii) the Leased Property or this Lease or the interest of Lessee or
Lessor therein or herein, (iii) Basic Rent or Additional Rent or other sums
payable by Lessee hereunder, (iv) the use, occupancy, construction, repair or
rebuilding of the Leased Property or any portion thereof, or (v) gross receipts
from the Leased Property. If any Taxes and Impositions levied or assessed
against the Leased Property may legally be paid in installments, Lessee shall
have the option to pay such Taxes and Impositions in installments; provided,
however, that upon the termination of the Term Lessee shall pay any such Taxes
and Impositions which it has been paying in installments in full, on or prior to
such termination date. Nothing in this Lease shall require payment by Lessee of
any franchise, estate, inheritance, succession, transfer (other than as set
forth above), net income or profits taxes of Lessor (other than any gross
receipts or similar taxes imposed or levied upon, assessed against or measured
by the Basic Rent, Additional Rent or any other sums payable by Lessee hereunder
or levied upon or assessed against the Leased Property), any taxes imposed by
any Governmental Authority on, or measured by, the net income of Lessor, unless
any such tax is in lieu of or a substitute for any other tax or assessment upon
or with respect to the Leased Property, in which case such tax would be payable
by Lessee hereunder. Lessee shall furnish Lessor and Lessor's Mortgagee with
receipts (or if receipts are not available, with copies of cancelled checks
evidencing payment with receipts to follow promptly after they become available)
showing payment of Taxes and Impositions prior to the applicable delinquency
date therefor, and, Lessee shall cause a tax service acceptable to Lessor and
Lessor's Mortgagee to provide Lessor and Lessor's Mortgagee timely evidence of
the payment by Lessee of such Taxes and Impositions. Except for Taxes and
Impositions paid by Lessee in installments as set forth above, Taxes and
Impositions which are payable by Lessee shall be apportioned between Lessor and
Lessee as of the date on which this Lease terminates. Lessor shall endeavor to
promptly forward to Lessee any tax bills received by Lessor that are Lessee's
responsibility.
Lessee shall establish and maintain the Tax and Insurance Reserve
Fund by and pursuant to the terms of Article 13.
(b) Lessee shall pay all charges for utility, communication and other
services to the extent rendered or used during the Term on or about the Leased
Property, whether or not payment therefor shall become due after the Term.
(c) At Lessee's cost and expense, Lessee shall perform and comply with all
Legal Requirements, whether or not such shall now exist or shall hereafter be
enacted or promulgated, and whether or not such are within the present
contemplation of Lessor or Lessee, whether or not such Legal Requirements shall
necessitate structural changes, improvements, interference with use and
enjoyment of the Leased Property, replacements or repairs, extraordinary as well
as ordinary. Lessee shall, at Lessee's cost and expense, perform and comply with
the terms of any easement granted or released pursuant to Article 21. Lessee
shall, at its expense, comply with all provisions of insurance policies required
pursuant to Article 13, and with the provisions of all contracts, agreements,
instruments and restrictions affecting the Leased Property or any part thereof
or its ownership, occupancy, use, operation or possession. Lessee shall comply
with the
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terms of and perform its obligations under any consent of Lessee to any
assignment of this Lease to Lessor's Mortgagee.
(d) If no default or Event of Default exists, and following written notice
to the Lessor and Lessor's Mortgagee, Lessee may contest (including through
abatement proceedings), in good faith and at its expense, by appropriate legal
proceedings, any Taxes or Impositions, and/or any Legal Requirement affecting
the Leased Property, and to postpone payment of or compliance with the same
during the pendency of such contest, provided that (i) the commencement and
continuation of such proceedings shall suspend the collection thereof from, and
suspend the enforcement thereof against, Lessor and the Leased Property, (ii) no
part of the Leased Property nor any Basic Rent or Additional Rent shall be
interfered with or shall be in danger of being sold, forfeited, attached or
lost, (iii) Lessee shall promptly and diligently prosecute such contest to a
final settlement or conclusion, (iv) there shall be no risk of the imposition of
civil or criminal liability or penalty on Lessor or Lessor's Mortgagee for
failure to comply therewith, (v) Lessee shall satisfy any Legal Requirements,
including, if required, that the Taxes and Impositions be paid in full before
being contested, and (vi) at Lessor's option, Lessee shall have furnished Lessor
with such security as Lessor shall reasonably request to insure payment of Taxes
and Impositions and compliance with Legal Requirements. Lessee shall pay any and
all judgments, decrees and costs (including all attorneys' fees and expenses) in
connection with any such contest and shall, promptly after the final
determination of such contest, fully pay and discharge the amounts which shall
be levied, assessed, charged or imposed or be determined to be payable therein
or in connection therewith, together with all penalties, fines, interest, costs
and expenses thereof or in connection therewith, and perform all acts the
performance of which shall be ordered or decreed as a result thereof.
7. Liens; Subordinations.
(a) Lessee represents and warrants that on the date of delivery of this
Lease, fee simple title to the Leased Property was vested in Lessor subject only
to Permitted Encumbrances. Subject to the provisions of paragraph (d) of Article
6, Lessee will promptly, but in any event no later than the earlier of (i)
forty-five (45) days after the existence thereof or (ii) 30 days after its
Actual Knowledge of the filing thereof but in any event prior to the enforcement
of the same, at its own expense remove and discharge of record, by bond or
otherwise, any charge, lien, security interest or encumbrance upon the Leased
Property, upon any Basic Rent, or upon any Additional Rent which arises for any
reason or any other defect in title to Lessor's estate in the Leased Property
(except for liens arising out of the act or omission of Lessor, its contractors
or invitees or their directors, officers, employees or agents without the
consent of Lessee), including all liens which arise out of Lessee's possession,
use, operation and occupancy of the Leased Property, but not including any
Permitted Encumbrances. Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, express or implied, to or for the
performance by any contractor, laborer, materialman, or vendor of any labor or
services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Leased Property or any
part thereof. Notice is hereby given that Lessor will not be liable for any
labor, services or materials furnished or to be furnished to Lessee, or to
anyone holding an interest in the Leased Property or any part thereof through or
under Lessee, and that no mechanic's or other liens for any such labor, services
or materials shall attach to or affect the interest of Lessor in and to the
Leased Property. If Lessee shall fail to discharge any charge,
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lien, security interest or encumbrance within the time period permitted by this
Lease, Lessor may discharge the same by payment or bond or both, and Lessee will
repay to Lessor, upon demand, any and all amounts paid therefor, or by reason of
any liability on such bond, and also any and all reasonable incidental expenses,
including reasonable attorneys' fees, incurred by Lessor in connection therewith
together with interest on all such amounts calculated at the Overdue Rate.
(b) This Lease shall be subject and subordinate to all present and future
mortgages, deeds of trust, deeds to secure debt or other similar lien
instruments, and as the same be renewed, amended, modified, consolidated,
replaced or extended (individually, a Mortgage) on the Lessor's interest in the
Leased Property and to all advances made upon the security thereof, provided
that the holder of the Mortgage shall execute and deliver to Lessee an agreement
(SNDA), in form substantially similar to Schedule F hereto, providing that such
holder will recognize this Lease and not disturb Lessee's possession of the
Leased Property in the event of foreclosure if no Event of Default is then in
existence; and concurrently therewith Lessee shall execute and deliver an
estoppel certificate in form substantially similar to Schedule G hereto. Lessee
agrees, upon receipt of such SNDA, to execute such further reasonable
instrument(s) as may be necessary to subordinate this Lease to the lien of any
such Mortgage, and also to execute such instrument(s) recognizing the assignment
of this Lease or the Basic Rent, Additional Rent and other sums payable by
Lessee hereunder to the holder of any such Mortgage.
(c) Lessee agrees to attorn, from time to time, to the holder of each
Mortgage and/or the holder of such subsequent mortgage, or any purchaser of the
Leased Property, for the remainder of the Term, provided that such holder or
such purchaser, shall then be entitled to possession of the Leased Property
subject to the provisions of this Lease. The provisions of this subsection shall
inure to the benefit of such holder or such purchaser, shall apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
foreclosure of the Mortgage (in which event the parties shall execute a new
lease for the remainder of the Term on the same terms set forth herein), shall
be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Each such party, however, upon
demand of the other, hereby agrees to execute, from time to time, instruments in
confirmation of the foregoing provisions hereof, reasonably satisfactory to the
requesting party acknowledging such subordination, non-disturbance and
attornment as are provided herein and setting forth the terms and conditions of
its tenancy.
8. Indemnification; Fees and Expenses.
(a) Lessee shall pay, and shall protect, defend and indemnify Lessor,
Lessor's Mortgagee, each Certificate Holder and the Indenture Trustee, their
respective successors and assigns, the beneficial owners of any of the foregoing
and the members, trustees, beneficiaries, partners, shareholders, officers,
directors, agents or employees of Lessor, Lessor's Mortgagee, each Certificate
Holder and the Indenture Trustee, or any such successor or assign or beneficial
owner (each an Indemnified Party and collectively, the Indemnified Parties),
from and against and hold the Indemnified Parties harmless from all Liens
(including, without limitation, liabilities, losses, damages, demands, claims,
obligations, suits or other proceedings (including, by way of example, causes of
action, litigation and defenses), settlement proceeds, fines, penalties,
assessments, citations, directives, judgments, fees, costs, disbursements or
other expenses of any kind or of any nature whatsoever (including, without
limitation, attorneys',
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Pennsylvania Lease Agreement
consultants', and experts' fees and disbursements actually incurred in
investigating, defending, settling or prosecuting any claim, obligation, suit or
other similar proceeding) which may be imposed on, incurred by or asserted or
awarded against such Indemnified Party (Indemnified Liabilities) (a) arising or
alleged to arise from or in connection with the condition, use, operation,
maintenance, Restoration, subletting and management of the Leased Property and
the appurtenances thereto, (b) relating to the Leased Property and the
appurtenances thereto and the use and occupancy thereof by Lessee or anyone
claiming by, through or under Lessee, or (c) arising or alleged to arise from or
in connection with any of the following events: (i) any injury to, or death of,
any person or any damage to or loss of property on or adjacent to the Leased
Property or growing out of or directly or indirectly connected with, ownership,
use, nonuse, occupancy, operation, possession, condition, construction, repair
or Restoration of the Leased Property or adjoining property, sidewalks, streets
or ways or resulting from the condition of any thereof; (ii) any claims by third
parties resulting from any violation or alleged violation, performance or
failure to perform by Lessee of (A) any provision of this Lease, or (B) any
Legal Requirement, including Legal Requirements which, by the terms of this
Lease, Lessee has agreed to perform on Lessor's behalf, or (C) any other lease
or agreement relating to the Leased Property, or (D) any contract or agreement
to which Lessee is a party or any restriction, law, ordinance or regulation,
affecting the Leased Property or the ownership, use, nonuse, occupancy,
condition, operation, possession, construction, repair or Restoration thereof or
of adjoining property, sidewalks, streets or ways; (iii) any contest permitted
by Article 6; (iv) Lessee's failure to pay in accordance with the terms and
provisions hereof any item of Additional Rent or other sums payable by Lessee
hereunder, or (v) any sublease or assignment of Lessee's rights hereunder.
Lessee shall not be liable in any case to any Indemnified Party for any
liabilities, obligations, claims, damages, penalties, causes of action, costs or
expenses to the extent that they result from the gross negligence or willful
misconduct of such Indemnified Party. If Lessor, Lessor's Mortgagee, or any
agent of Lessor or Lessor's Mortgagee, or any other Indemnified Party, shall be
made a party to any such litigation commenced against Lessee, and if Lessee, at
its expense, shall fail to provide Lessor or Lessor's Mortgagee or its agent or
other Indemnified Party with counsel reasonably approved by such party, Lessee
shall pay all costs and reasonable attorney's fees and expenses incurred or paid
by Lessor or Lessor's Mortgagee or its agent or other Indemnified Party in
connection with such litigation.
(b) The representations, warranties and obligations of Lessee, and the
rights and remedies of each Indemnified Party under this Article 8, are in
addition to and not in limitation of any other representations, warranties,
obligations, rights and remedies provided in this Lease or otherwise at law or
in equity, and shall survive the expiration or termination of this Lease.
9. Environmental Matters.
(a) Lessee represents and warrants and covenants to the Indemnified
Parties that:
(i) at all times during the Term of this Lease, (x) the Leased
Property, Lessee, all sublessees and any assignees of Lessee, and all other
parties claiming by, through, or under Lessee, shall comply with all applicable
Environmental Laws; (y) Lessee, all sublessees and any assignees of Lessee, and
all other parties claiming by, through, or under Lessee, shall have obtained all
Permits, licenses, and any other authorizations required to conduct its or their
operations at the Leased Property that are required under all applicable
Environmental Laws and
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Pennsylvania Lease Agreement
Lessee, all sublessees and any assignees of Lessee, and all other parties
claiming by, through, or under Lessee, shall be in compliance with the same; and
(z) Lessee shall remove and dispose of any Hazardous Substances present on the
Leased Property not in compliance with applicable Environmental Laws;
(ii) the Leased Property is in compliance with applicable
Environmental Laws; no Hazardous Substances are or have been discharged,
generated, treated, disposed of, or stored on, incorporated in or removed or
transported from the Leased Property except in compliance with applicable
Environmental Laws or as disclosed in the Environmental Site Assessment. No
notices, complaints or orders of violation or non-compliance of any nature
whatsoever regarding alleged violations of, or strict liability under,
Environmental Laws have been issued to Lessee or, to the best of its Actual
Knowledge, to any Person regarding the Leased Property, and Lessee has no Actual
Knowledge that any environmental investigation by any Governmental Authority nor
any legal action by a private party is pending or threatened, in each case with
regard to the Leased Property or any use thereof or any alleged violation of
Environmental Laws with regard to the Leased Property; no liens have been placed
upon the Leased Property in connection with any actual or alleged liability
under any Environmental Laws;
(iii) the Leased Property has not been used by Lessee or, to the
best of Lessee's knowledge after reasonable inquiry, by any other Person and
will not be used during the Term of this Lease to generate, manufacture, refine,
produce or process any Hazardous Substance or to store, handle, treat, dispose,
transfer or transport any Hazardous Substance other than normal and lawful uses
of such Hazardous Substances in compliance with Environmental Laws which
activities have not had and will not have any material adverse effect upon the
Leased Property;
(iv) no pits, lagoons, ponds, or other surface impoundments, above
ground tanks or other containment structures have been or will be constructed,
operated or maintained in or on the Leased Property in violation of applicable
Environmental Laws and no underground storage tanks are or will be constructed,
operated or maintained in or on the Leased Property; to the best of Lessee's
knowledge after due inquiry, there is presently no asbestos nor
asbestos-containing material (except commercially produced product in
non-friable bonded form in floor, ceiling or wall materials which is in good
condition, the presence of which complies with all Environmental Laws) nor any
PCB-containing equipment, including PCB-containing transformers, located in, on,
at or under the Leased Property nor will any of the foregoing be located in, on,
at or under the Leased Property at any time during the Term of this Lease. At
Lessor's request, Lessee shall maintain and implement a written
asbestos-containing material operations and maintenance program for any
identified or presumed asbestos-containing materials, such written program to be
in form and content reasonably acceptable to Lessor;
(v) other than lawful quantities in connection with Lessee's use of
the Leased Property in compliance with Environmental Laws, the Leased Property
is free of Hazardous Substances at, in, on, over or under the Leased Property,
regardless of the source of any such Hazardous Substances; and
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(vi) to Lessee's Actual Knowledge, the Environmental Site Assessment
is true, correct and complete, and contains no misstatement of fact or omission
of any fact which would make the statements contained therein untrue, incomplete
or misleading in any material respect as of the date hereof.
(b) Promptly upon obtaining Actual Knowledge thereof, Lessee shall give to
Lessor and Lessor's Mortgagee notice of the occurrence of any of the following,
in each case relating to the Leased Property or the use, occupancy or operation
thereof in respect of any Environmental Law: (i) the failure of the Leased
Property, Lessee, any sublessee or assignee of Lessee or invitee of Lessee, or
any other party claiming by, through, or under Lessee, to comply therewith in
any manner whatsoever; (ii) the issuance to Lessee, or any sublessee of any
portion of the Leased Property or any assignee of Lessee, or any other party
claiming by, through, or under Lessee, of any notice, complaint or order of
violation or non-compliance therewith of any nature whatsoever; (iii) any notice
of a pending or threatened investigation thereunder; (iv) any notice from any
Governmental Authority requiring any corrective action with respect to the
Leased Property thereunder; or (v) any notice or other communication with
respect to a pending or threatened governmental or private party action relating
to violation thereof.
(c) At any time (i) if a Release of Hazardous Substances has occurred on,
from or affecting the Leased Property in violation of Environmental Laws an
adverse change in the environmental condition of the Leased Property has
occurred or been discovered, and if Lessee shall not (A) diligently commence to
cure such condition, to the extent necessary to meet Legal Requirements, to
comply fully with applicable Environmental Laws, and to prevent a material
diminution in the fair market value of the Leased Property related to the
environmental condition, within 30 days after Lessee becomes aware of such
Release of Hazardous Substances or such adverse change (or such shorter period
as may be required by law or in the event of an emergency) and (B) thereafter
diligently prosecute to completion such cure, or (ii) after an Event of Default
has occurred and is continuing under this Lease, or (iii) if Lessor or Lessor's
Mortgagee has reasonable cause to believe that Lessee is in default under this
Article 9, Lessor or Lessor's Mortgagee may cause to be performed or direct
Lessee to cause to be performed an environmental audit or site assessment of the
Leased Property and the then uses thereof reasonable in scope under the
circumstances, and may take such reasonable actions as it may deem necessary to
remediate or cure such condition or to cause the Leased Property to comply with
any Legal Requirement. Such environmental audit or site assessment shall be
performed by an engineer qualified by law and experience to perform the same and
satisfactory to Lessor, shall include a review of the uses of the Leased
Property and compliance of the same with all Environmental Laws, and shall
include an estimate of the cost to cure any breach or default in Lessee's
covenants hereunder. All costs and expenses incurred by Lessor and Lessor's
Mortgagee in connection with such environmental audit or assessment and any
remediation required shall be paid by Lessee upon demand, and shall bear
interest at the Overdue Rate from the date such cost is incurred until the date
it is paid. Such audit or assessment shall be addressed to Lessor and Lessor's
Mortgagee and shall provide expressly that they can rely on its findings.
(d) Subject to the provisions of paragraph (d) of Article 6 hereof, in the
event of a violation of or the discovery of a violation of any Environmental Law
by Lessee, any sublessee of any portion of the Leased Property, any assignee of
Lessee or any invitee of Lessee, or any
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Pennsylvania Lease Agreement
other Person claiming by, through, or under Lessee, or resulting from Lessee's
failure to comply with this Article 9, Lessee shall promptly perform all
remedial actions to clean up, contain, or remove any Hazardous Substances on,
under or in the Leased Property in accordance with, and as required by,
applicable Environmental Laws to restore the Leased Property to its
pre-contamination condition and otherwise to cure any such violation of any
Environmental Law, all at Lessee's sole cost and expense. Lessee shall determine
the nature and scope of all such required remedial actions within 30 days (or if
not possible within such 30 days, the shortest practical time period) after
obtaining Actual Knowledge of any such violation and shall complete all such
actions within 120 days following the date that the nature and scope of such
required remedial actions are identified, provided that if such remedial actions
cannot be completed with diligence within such 120 day period, and so long as
Lessee is performing such remedial actions with due diligence, the time within
which such remedial actions may be completed shall be extended for such period
as may be reasonably necessary to complete such remedial action with diligence,
provided the same shall be subject to Lessor's approval and consistent with
Legal Requirements. If Lessee fails to perform the necessary remedial actions as
required hereby within the time periods set forth herein, Lessor or Lessor's
Mortgagee may, but shall not be obligated to, cause the Leased Property to be
freed from Hazardous Substances or otherwise brought into compliance with
Environmental Laws and any reasonable costs and expenses actually incurred by
Lessor or Lessor's Mortgagee in connection therewith, together with interest at
the Overdue Rate from the date incurred until actually paid by Lessee, shall
constitute Additional Rent and shall be immediately due and payable on demand.
Lessee grants to Lessor and Lessor's Mortgagee access to the Leased Property and
a license to remove any Hazardous Substances and to do all things Lessor or
Lessor's Mortgagee deems necessary to bring the Leased Property into compliance
with Environmental Laws. If, as a result of any such violation, a lien attaches
to the Leased Property that takes priority over the lien of the Mortgage, Lessee
shall promptly, and in any event within 10 days after the attachment of any such
lien, discharge or contest such lien in accordance with Article 6(d) and post a
bond or deposit an irrevocable letter of credit with Lessor's Mortgagee, in
either event satisfactory in form and substance and with a surety or obligor
satisfactory to Lessor's Mortgagee and in an amount sufficient to discharge such
lien.
(e) In addition to, and not in limitation of, any indemnity contained in
Article 8, Lessee agrees to indemnify, defend and hold harmless each Indemnified
Party from and against any and all Indemnified Liabilities which may be suffered
or incurred by, or asserted against such Indemnified Party to the extent arising
directly or indirectly out of (i) the use, storage, transportation, disposal,
treatment, Release, threatened Release, discharge, emission, generation or
presence of any Hazardous Substances at, from, on, over, under or in the Leased
Property, regardless of whether occurring before, during or after the Term of
this Lease and regardless of the source of any such Hazardous Substances, or
(ii) any default in the performance of any obligation under this Article 9 or
any violation of any Environmental Law with respect to the Leased Property or by
Lessee or any Person claiming by, through or under Lessee, or resulting from
Lessee's failure to comply with this Article 9.
(f) The representations, warranties and obligations of Lessee, and the
rights and remedies of each Indemnified Party under this Article 9, are in
addition to and not in limitation of any other representations, warranties,
obligations, rights and remedies provided in this Lease or otherwise at law or
in equity.
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(g) The obligations and liabilities of Lessee with respect to each
Indemnified Party, actual or contingent, under this Article 9 and relating to
the period through the end of the Term, whether arising before, during or after
the Term, shall survive such termination of this Lease or the abandonment of the
Leased Property by Lessee, or any acquisition or disposition of the Leased
Property except with respect to events and circumstances resulting solely from
the acts of any Person other than Lessee, any Affiliate of Lessee, or any Person
claiming by or through Lessee or any such Affiliate and occurring after the
foreclosure of the lien of the Mortgage and the sale of the Leased Property
pursuant to such foreclosure.
(h) If an Event of Default occurs under this Article 9, then in addition
to and not in limitation of all other rights of Lessor hereunder Lessor may, by
written notice to Lessee which makes specific reference to the offer provisions
hereafter provided for, require Lessee to make, and Lessee shall be deemed to
have made, a rejectable offer to purchase the Leased Property in the manner and
under the terms of Article 15 on the Installment Payment Date first occurring
thirty (30) days after Lessor's acceptance of such offer, for a purchase price
equal to the Termination Value as of the date of such purchase plus the
Reinvestment Premium on said Termination Value. Lessor shall have sixty (60)
days to accept or reject such offer and if it fails to act, it shall be deemed
to have accepted such offer. If Lessor accepts such offer, then Lessee shall
purchase the Leased Property on an Installment Payment Date specified by Lessor
not less than 30 nor more than 90 days after the giving of the Article 9 Notice
for a purchase price equal to the Termination Value as of the date of such
purchase plus the Reinvestment Premium on said Termination Value.
10. Maintenance and Repair; Additions.
(a) Intentionally Omitted.
(b) Intentionally Omitted.
(c) Lessee will, at its cost and expense, keep and maintain the Leased
Property, including the Improvements and any altered, Restored, additional or
substituted buildings and other improvements, in the same condition as on the
date of this Lease (and with respect to and any additions or alterations
thereto, in the same condition as on the date of completion thereof in
accordance with the provisions of this Lease), ordinary wear and tear excepted,
and (except as otherwise provided in paragraph (c) of Article 12) will make all
structural and non-structural, and ordinary and extraordinary changes, repairs
and replacements, foreseen or unforeseen, which may be required, whether or not
caused by its act or omission, to be made upon or in connection with the
improvements to the Leased Property in order to keep the same in such condition,
including taking action necessary to maintain the Leased Property in compliance
with Legal Requirements and Environmental Laws. Lessee shall keep the Leased
Property orderly and free and clear of rubbish and shall not commit or suffer
any waste of the Leased Property. Lessor shall not be required to maintain,
alter, repair, rebuild or replace any improvements on the Leased Property or to
maintain the Leased Property, and Lessee expressly waives the right to make
repairs at the expense of Lessor or to terminate this Lease because of Lessor's
failure to so maintain or repair pursuant to any Legal Requirements at any time
in effect. Lessor shall have no obligation to incur any expense of any kind or
character in connection with the management, operation or maintenance of the
Leased Property during the Term of the Lease. Lessee shall use
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Pennsylvania Lease Agreement
and operate the Leased Property or cause it to be used and operated only by
personnel authorized by Lessee and Lessee shall use reasonable precautions to
prevent loss or damage to the Leased Property from Casualty.
(d) If any Improvements shall encroach upon any property, street or
right-of-way adjoining or adjacent to the Leased Property, or shall violate any
restrictive covenant affecting the Leased Property or any part thereof, or shall
impair the rights of others under or obstruct any easement or right-of-way to
which the Leased Property is subject, then, promptly after the written request
of Lessor or any Person affected by any such encroachment, violation, impairment
or obstruction, Lessee shall, at its expense, either (i) obtain effective
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, impairment or obstruction or (ii) make such
changes in the Improvements and take such other action as shall be necessary to
remove such encroachments or obstructions and to end such violations or
impairments, including, if necessary, the alteration or removal of any
Improvement. Any such alteration or removal shall be made to the same extent as
if such alteration or removal were an alteration under the provisions of
paragraphs (e) or (h) of this Article 10 and there shall be no abatement of rent
by reason of such alteration or removal.
(e) Lessee shall have the right (i) to make non-structural alterations,
modifications or improvements to the Improvements and the Land the cost of which
in any instance is $450,000 or less and (ii) to make any other alterations,
additions, modifications or improvements to the Leased Property whether or not
structurally integrated with the existing Improvements, the cost of which is any
instance is $450,000 or less (any matter described in clauses (i) or (ii) being
a Minor Addition) without Lessor's consent; provided, however, that prior to
commencing any Minor Addition, Lessee shall have delivered to Lessor (A) if the
Minor Addition involves alterations, modifications, improvements or additions
which will affect the structural elements or building systems of the
Improvements, a certificate of a structural engineer licensed in the state in
which the Leased Property is located and (B) a certificate of an officer of
Lessee certifying that such Minor Addition, if constructed in accordance with
the proposed plans and specifications, will not adversely affect the structural
integrity of the Improvements or materially impair the utility, fair market
value, useful life or operation of the Leased Property and will conform with the
character and quality of the existing Improvements and all Legal Requirements.
All alterations and additions will be constructed in a good and workmanlike
manner using a quality of material and workmanship at least as good as to the
original work or installation of the Improvements and in compliance with all
applicable Legal Requirements and will be completed in a commercially reasonable
time period. Each alteration and addition shall be made at the sole cost and
expense of Lessee, may not be encumbered by Lessee and (other than Trade
Fixtures) shall become the property of Lessor and subject to this Lease. No
Minor Addition or any other alteration or addition which does not satisfy all of
the foregoing requirements of this subparagraph (e) shall be made without
Lessor's written consent in Lessor's sole discretion.
(f) Intentionally omitted.
(g) Intentionally omitted.
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Pennsylvania Lease Agreement
(h) All work done in accordance with this Article 10 shall comply with the
requirements of all Policies required to be maintained by Lessee hereunder.
(i) Lessee agrees that all of the Improvements shall be deemed real
property and fixtures owned by Lessor. In furtherance of the foregoing, Lessee
hereby grants, conveys and transfers to Lessor any and all of Lessee's right
title and interest in and to the Improvements (whether now existing or hereafter
constructed). Lessee agrees that any and all Improvements of whatever nature at
any time constructed, placed or maintained upon any part of the Land shall be
and remain the property of Lessor, subject to Lessee's rights under this Lease.
Lessee agrees to execute, acknowledge and deliver and file all documents
reasonably necessary or appropriate to effect the purposes of this paragraph
10(i).
11. Trade Fixtures. Lessor acknowledges and agrees that the items of trade
fixtures, machinery and equipment described in Schedule E (but specifically
excluding Improvements, building systems and other replacements of fixtures,
machinery and equipment which are the property of Lessor) hereto are and shall
remain the property of Lessee (Trade Fixtures) and be treated as "trade
fixtures" for the purposes of this Lease and Lessee may remove the same from the
Leased Property at any time prior to the termination of this Lease, provided
that Lessee shall repair any damage to the Leased Property resulting from such
removal. Lessee may, at its own cost and expense, install or place or reinstall
or replace upon or remove from the Leased Property any such Trade Fixtures. Any
such Trade Fixtures shall not become the property of Lessor and Lessor agrees to
promptly execute instruments reasonably satisfactory to Lessor confirming the
same. Replacements of fixtures, machinery and equipment which are property of
the Lessor shall be of at least equal quality to the replaced fixtures,
machinery and equipment when the replaced items were new.
12. Condemnation and Casualty.
(a) Lessee hereby assumes all risk of loss, damage or destruction, whether
(i) by fire or hazard or other casualty, or the theft of all or any portion of
the Leased Property (a Casualty) or (ii) by taking, condemnation, seizure,
confiscation, requisition or other taking or sale of the use, access, occupancy,
easement, rights to or title of all or any portion of the Leased Property,
whether permanent or temporary, by or on account of any actual or threatened
eminent domain proceedings or other action by any Governmental Authority or any
transfer in lieu or in anticipation thereof (a Taking; a Taking and a Casualty
are each sometimes referred to as a Destruction). Lessee hereby assigns to
Lessor any award or insurance or other payment to which Lessee may become
entitled by reason of its interest in the Leased Property (other than any award
or insurance or other payment made to Lessee specifically made for interruption
of business, moving expenses or Trade Fixtures; hereinafter referred to as
Lessee's Loss), if the Leased Property, or any portion thereof, is damaged,
destroyed, lost or taken in a Taking or a Casualty. If a Destruction with
respect to the Leased Property occurs, the Lessee shall give Lessor and Lessor's
Mortgagee prompt written notice thereof, and describe in reasonable detail in
each case the circumstances of the Taking or Casualty and the damage to or loss
of the Leased Property. So long as no Event of Default has occurred and is
continuing, Lessee shall at its cost and expense, in the name and on behalf of
the Lessor, Lessee, Lessor's Mortgagee or otherwise, appear in any such
proceeding or other action, negotiate, accept and prosecute any claim for any
award, compensation, insurance proceeds or other payment on account of any such
Casualty or
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Pennsylvania Lease Agreement
Taking and, subject to paragraph (b) below, cause each such award, compensation,
insurance proceeds or other payment to be paid to Lessor's Mortgagee, if any,
and otherwise to Lessor. Lessee shall use commercially reasonable efforts to
achieve the maximum award or other recoveries obtainable under the
circumstances. Any negotiated awards, settlement or recoveries shall be subject
to Lessor's and Lessor's Mortgagee (if any) prior written approval. Lessor may
appear in any such proceeding or other action in a manner consistent with the
foregoing and the costs and expenses of any such appearance shall be borne by
Lessee and payable to Lessor as Additional Rent. Lessee shall promptly inform
Lessor of all settlement offers. If an Event of Default has occurred and is
continuing, Lessor shall have the exclusive right (subject to the consent rights
of Lessor's Mortgagee, if any) at Lessee's cost to negotiate, adjust and settle
awards, settlements and recoveries without Lessee's approval.
(b) After giving notice of a Destruction under the provisions of Paragraph
12(a) hereof, Lessee shall, at Lessee's own cost and expense, proceed with
diligence and promptness (i) to carry out any work necessary to make the Leased
Property safe and secure, and (ii) Restore the Leased Property. All Restoration
shall be to restore, repair, replace, rebuild and/or improve the Leased Property
in order to restore the Leased Property, as nearly as practicable, to a
condition and fair market value not less than the condition required to be
maintained hereunder and fair market value immediately prior to such
Destruction. All construction work shall be undertaken and completed in the same
manner as if the same were undertaken pursuant to paragraph (e) of Article 10,
and shall be subject to the reasonable requirements of Lessor and Lessor's
Mortgagee as provided for in clause (ii) below. Promptly upon completion of any
Restoration, Lessee shall inform, in writing, Lessor and Lessor's Mortgagee of
the same. The foregoing obligations of Lessee so to Restore the Leased Property
shall not be applicable (but the foregoing obligations of Lessee to make the
Leased Property safe and secure shall be applicable) if Lessee has made an offer
to purchase the Leased Property pursuant to paragraph (c) below.
Basic Rent and Additional Rent shall not ▇▇▇▇▇ hereunder by reason of any
Destruction affecting the Leased Property, and this Lease shall continue in full
force and effect and Lessee shall continue to perform and fulfill all of
Lessee's obligations, covenants and agreements hereunder notwithstanding such
Destruction.
The Net Award shall be applied to effect compliance with Lessee's obligations
hereunder. Before commencement of any Restoration and at all times during
Restoration, if the undisbursed portion of the Net Award is less than the
estimated hard and soft costs to Restore the Improvements to the condition
required in this paragraph (b), as reasonably determined by Lessor, at Lessee's
expense, then, unless such estimated cost is less than the Restoration Threshold
Amount, Lessee shall deposit the amount by which such estimated cost to Restore
exceeds the Net Award with the Depositary (as defined below) or shall post an
equivalent bond or other security satisfactory in form and substance to Lessor
and Lessor's Mortgagee issued by a surety, bank or other Person satisfactory to
Lessor and Lessor's Mortgagee, whereupon such deposit or bonded amount shall be
part of the Net Award for purposes of paragraph (c) of this Article 12. If the
Net Award does not exceed $100,000 (the Restoration Threshold Amount), then the
Net Award shall be promptly paid to Lessee to be applied to the repair and
rebuilding required by this paragraph (b). If the Net Award exceeds the Net
Restoration Threshold Amount then:
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Pennsylvania Lease Agreement
(i) the full amount thereof shall be paid to a depositary (the
Depositary). The Depositary shall be Lessor's Mortgagee or a servicer of the
loan held thereby, or a bank or trust company selected by Lessor and approved by
Lessor's Mortgagee which has a credit rating from S&P or ▇▇▇▇▇'▇ (or any
successor to either entity) of "A" or "A2", respectively, or better. The
Depositary shall have no affirmative obligation to prosecute a determination of
the amount of, or to effect the collection of, any insurance proceeds or
condemnation award or awards. Moneys so received by the Depositary shall be held
by the Depositary in trust separately for the uses and purposes provided in this
Lease. To the extent not available to be paid from the Net Award, fees and
expenses payable to the Depositary shall be paid by Lessee as Additional Rent.
(ii) Payments of the Net Award for the actual costs and expenses
incurred by Lessee in connection with such Restoration shall be made to Lessee
from time to time by the Depositary after written notice to the Depositary, with
a copy to Lessor, setting forth in reasonable detail and with reasonable
supporting materials all of such costs and expenses actually incurred by Lessee.
Lessee shall comply with the reasonable requirements of Lessor and Lessor's
Mortgagee, if any, with respect to the distribution of any Net Award by the
Depositary, including without limitation that no Event of Default shall have
occurred and be continuing hereunder, that all plans and specifications shall
have been reviewed and approved by Lessor and Lessor's Mortgagee, that Lessee
proceeds promptly after the Net Award's delivery to the Depositary to Restore
the Leased Property in accordance with the requirements of this Article 12 and
paragraphs (e) and (h) of Article 10 hereof, that disbursements by the
Depositary shall not be more frequent than monthly in an amount not exceeding
the hard and soft costs of Restoration incurred since the previous disbursement
(less any retainage to be retained by Lessee with respect thereto) and that
disbursements shall be conditioned upon, inter alia, the delivery of lien
waivers, architect's certificates and title insurance endorsements.
(c) Notwithstanding the foregoing, (i) if there is any Destruction and in
Lessor's reasonable opinion such Destruction entails the loss of more than 50%
of the value of the Improvements, or (ii) at the time of any such Destruction or
at any time thereafter until the Restoration of the Leased Property is completed
pursuant to this Article 12, there shall be an Event of Default under this
Lease, (iii) Lessee (or its successor or assign) has made or been deemed to have
made a rejectable offer under paragraph (c) of Article 12 of that certain lease
of property in Brewton, Alabama of even date herewith between Lessee and
CRICIPECAL LLC (the Alabama Lease), or (iv) after any Destruction, Lessee fails
to Restore the Leased Property by the Outside Restoration Date (hereafter
defined), then, at the option of Lessor, upon notice from Lessor of any such
event which makes reference to this Article 12(c) and the invocation of the
offer provisions hereafter provided for, Lessor may require Lessee to make and
Lessee shall be deemed to have made a rejectable offer to Lessor to purchase the
Leased Property, together with any Net Award not actually received by Lessor's
Mortgagee, if any (or, if none, Lessor), in the manner and under the terms of
Article 15 on the Installment Payment Date first occurring thirty (30) days
after Lessor's acceptance of such offer, for a purchase price equal to the
Termination Value as of the date of purchase, plus, if clause (c)(ii) above
applies, the Reinvestment Premium, less in all events the Net Award actually
received by Lessor's Mortgagee, if any (or, if none, Lessor). Lessor shall have
sixty (60) days after such offer to accept or reject it, and if it fails to act,
it shall be deemed to have accepted such offer. If Lessor rejects any offer
under this paragraph (c) (which rejection shall not be effective without the
consent of Lessor's Mortgagee), this Lease shall terminate on the Installment
Payment Date
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Pennsylvania Lease Agreement
first occurring thirty (30) days after such rejection, and the entire Net Award
shall be retained by Lessor's Mortgagee, subject to the rights of Lessor.
The "Outside Restoration Date" shall mean 18 months after the
Destruction occurs, subject to extension by Lessor of not more than 6 months to
the extent that Restoration is delayed due to acts of God, strikes,
unavailability of materials, or further Destruction.
(d) Notwithstanding any other provision to the contrary contained in this
Article 12, in the event of a temporary Taking, this Lease shall remain in full
force and effect (including without limitation the obligation of Lessee to
continue to pay Basic Rent and Additional Rent) and the Lessee shall be
obligated to continue to pay Basic Rent and Additional Rent and Lessee shall be
entitled to the Net Award paid for such temporary condemnation; except that any
portion of the Net Award allocable to the time period after the expiration or
termination of the Term shall be paid to Lessor. The provisions of this Article
12 shall supersede any contrary provisions in any statute or law.
13. Insurance.
(a) Lessee shall, at its cost and expense, maintain or cause to be
maintained valid and enforceable insurance of the following character and shall
cause to be delivered to Lessor and Lessor's Mortgagee annual certificates of
the insurers as to such coverage and shall comply with the requirements of this
Article 13 (Insurance Requirements):
(i) "All Risks of Physical Loss" property insurance covering the
Leased Property and all replacements and additions thereto, and all building
materials and other property which constitute part of the Leased Property in a
manner consistent with insurance maintained by Lessee on properties similar to
the Leased Property and in any event in amounts not less than one hundred
percent (100%) of the full replacement value of the Leased Property less Land
and other uninsurable items, subject to an agreed value endorsement, together
with an endorsement providing for law and ordinance coverage in an amount equal
to at least twenty-five percent (25%) of the full replacement value of all
Improvements, all of such insurance to have a deductible not greater than
$25,000.00.
(ii) Commercial general liability insurance covering legal liability
on an "occurrence" basis against claims for bodily injury, death or property
damage, occurring on, in or about the Leased Property and the adjoining land,
streets, sidewalks or ways occurring as a result of construction and use and
occupancy of facilities located on the Leased Property or as a result of the
construction thereof or the use of products or materials manufactured,
processed, constructed or sold, or services rendered, on the Leased Property, in
the minimum amount of $5,000,000 (or such higher amount as Lessor may reasonably
require from time to time) with respect to any one occurrence, accident or
disaster or incidence of negligence and with a maximum deductible of $5,000.00.
(iii) Worker's compensation insurance (or other similar insurance or
self insurance program permitted and in compliance with the Legal Requirements
of the state in which the Leased Property is located) covering all Persons
employed in connection with any work done on or about the Leased Property with
respect to which claims for death or bodily
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Pennsylvania Lease Agreement
injury could be asserted against Lessor, Lessee or the Leased Property,
complying with Legal Requirements.
(iv) if any portion of the Leased Property is located in an area
designated by the Federal Emergency Management Agency as having special flood
and mudslide hazards, flood insurance in the maximum available amount under the
Flood Disaster Protection Act of 1973 and otherwise meeting the requirements of
the Federal Insurance Administration.
(v) Loss of rent insurance in amounts sufficient to compensate
Lessor for all Basic Rent, Additional Rent and other amounts payable hereunder
for a period of not less than twenty-four (24) months, the amount of such
coverage to be adjusted annually to reflect the Basic Rent, Additional Rent and
other amounts payable during the succeeding twenty-four (24) month period.
(vi) At all times during which construction, repairs or Restoration
are being made with respect to the Improvements, the insurance provided for in
subsection (i) written on a so-called builder's risk completed value form on a
non-reporting basis, including permission to occupy the Leased Property, and
with an agreed-amount endorsement waiving co-insurance provisions.
(vii) Broad form general boiler and machinery insurance (without
exclusion for explosion) covering physical damage to the Leased Property and to
the major components of any central air conditioning ventilation systems, steam
boilers, pipes, turbines, engines or similar apparatus in an amount which is not
less than one hundred percent (100%) of the full replacement value of the Leased
Property.
(viii) Such other insurance, in such amounts, against such risks,
and with such other provisions as is customarily and generally maintained by
operators of similar properties including war risk insurance (at and during such
times as war risk insurance is commonly obtained in the case of property similar
to the Leased Property), when and to the extent obtainable from the United
States Government or any agency thereof.
Unless otherwise approved by Lessor (Lessor acknowledging that as of the date
hereof it has approved Fireman's Fund Insurance Company but has reserved the
right to revoke such approval in its discretion upon thirty (30) days' notice to
Lessee), all policies of insurance required hereunder (individually a "Policy,"
and collectively, the "Policies") shall be written by insurance companies with a
financial performance rating of not less than "A" and a financial size category
of not less than "XI" as rated in the most currently available Best's Insurance
Reports, having an insurer financial strength rating from S&P of "A" or better
(but only if S&P actually ascribes an insurer financial strength rating to such
insurer at such time), having an insurance financial strength rating from
▇▇▇▇▇'▇ of "A1" or better (but only if ▇▇▇▇▇'▇ actually ascribes an insurance
financial strength rating to such insurer at such time) which are considered
equivalent to NAIC 1 or other rating designation acceptable to the Securities
Valuation Office of the National Association of Insurance Commissioners and
which are legally qualified to issue such insurance in the state where the
Leased Property is located, and otherwise reasonably satisfactory to Lessor and
Lessor's Mortgagee.
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Pennsylvania Lease Agreement
Insurance certificates evidencing the coverage required above shall be deposited
with the Lessor by Lessee on the date hereof and thereafter no less frequently
than annually. With respect to the policies described under subparagraphs (i)
(ii), (iv), (v), (vi) and, if applicable, (viii), the Lessee also shall deliver
insurance certificates evidencing the coverage required under said subparagraphs
to the Lessor's Mortgagee, naming the Lessor's Mortgagee as the certificate
holder. The form and substance of such certificates shall be satisfactory to
Lessor and Lessor's Mortgagee and shall be issued by the insurer.
All policies of property insurance provided for herein shall name the Lessor as
loss payee and Lessor's Mortgagee as loss payee, mortgagee and additional
insured, as its interest may appear, and all liability policies shall name the
Lessor and the Lessor's Mortgagee as loss payee, mortgagee and additional
insured, as their respective interests may appear and the policies required
under subparagraphs (i), (iv) and (v) above shall identify the Lessor as having
an insurable interest in the Leased Property, specifically owner of the Leased
Property. In addition, all policies of property insurance required under this
Lease shall contain a standard mortgagee clause form endorsement naming the
Lessor's Mortgagee as loss payee, mortgagee and additional insured; and any
provisions in such property insurance for risk retention by Lessee shall be
subject to the approval of Lessor and Lessor's Mortgagee. All policies required
under this Article 13 shall provide that (i) the insurance evidenced thereby
shall not be canceled or modified without at least thirty (30) days' prior
written notice from the insurance carrier to the Lessor and the Lessor's
Mortgagee, (ii) no act or omission on the part of the Lessee shall invalidate
the coverage as to the Lessor and no act or omission on the part of the Lessor
or the Lessee shall invalidate the coverage as to the Lessor's Mortgagee and
(iii) no claims shall be paid thereunder without ten (10) days' advance written
notice to the Lessor and the Lessor's Mortgagee. Furthermore, the Lessee shall
be required to deliver certificates of all insurance required under this Article
13 at least thirty (30) days prior to the earlier of the expiration of the
existing insurance period or the due date for all premiums for the renewal of
such policies. All insurance policies and endorsements shall be fully prepaid
and nonassessable. The Lessee shall not obtain any separate or additional
insurance which is contributing in the event of loss unless the Lessor and the
Lessor's Mortgagee are each insured thereunder (as their interests may appear)
and the policies therefor are satisfactory to the Lessor and the Lessor's
Mortgagee.
(b) Any Net Award remaining after Lessee has Restored the Leased Property
pursuant to paragraph (b) of Article 12 shall be paid to Lessor, except to the
extent payable to Lessor's Mortgagee pursuant to any agreement between Lessor
and Lessor's Mortgagee.
(c) Every insurance policy maintained pursuant to this Lease shall (i)
provide that the issuer waives all rights of subrogation against Lessor, any
successor to Lessor's interests in the Leased Property and Lessor's Mortgagee;
and (ii) provide that 30 days' advance written notice of cancellation,
modification, termination or lapse of coverage shall be given to Lessor and
Lessor's Mortgagee and that such insurance, as to the interest of Lessor and
Lessor's Mortgagee, shall not be invalidated by any act or neglect of Lessor,
Lessor's Mortgagee, Lessee or any party, nor by any foreclosure or any other
proceedings relating to the Leased Property, nor by any change in the title
ownership of the Leased Property, nor by use or occupation of the Leased
Property for purposes more hazardous than are permitted by such policy; and
(iii) be primary and without right or provision of contribution as to any other
insurance carried by Lessor or any other interested party; and (iv) in the event
any insuring company is not domiciled within the United
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Pennsylvania Lease Agreement
States of America, include a United States Service of Suit clause (providing any
actions against the insurer by the named insured or Lessor are conducted within
the jurisdiction of the United States of America).
(d) Lessee shall comply with all of the terms and conditions of each
insurance policy maintained pursuant to the terms of this Lease.
(e) If Lessor or Lessor's Mortgagee so elects, Lessee shall on demand pay
to Lessor or Lessor's Mortgagee on the same day of each month that Basic Rent is
due hereunder a monthly payment in such amount as Lessor or Lessor's Mortgagee
reasonably determines to be necessary to create and maintain a reserve fund from
which to pay before they become due all Taxes and Impositions, and all premiums
on insurance required to be maintained by Lessee pursuant to Article 13 hereof
(the "Tax and Insurance Reserve Fund"). All such sums shall be held by Lessor or
Lessor's Mortgagee free of trust and without interest to Lessee, and may be
commingled with other funds. Any excess reserve shall be credited against
subsequent reserve payments required hereunder, and any deficiency shall be paid
by Lessee upon demand, but in no event later than five (5) days before the date
when such Taxes and Impositions and insurance premiums shall become delinquent.
To the extent that adequate funds for Taxes and Impositions have been paid to
create a reserve fund, Lessor shall, on not less than 15 days' written request
of Lessee, cause the same to be applied to Taxes and Impositions payable by
Lessee hereunder.
Any unapplied portion of the Tax and Insurance Reserve Fund shall be
returned to Lessee within thirty (30) days after the expiration of the Term or
termination of this Lease, provided there exists no breach of any undertaking of
Lessee. Upon the occurrence of any default by Lessee hereunder, Lessee agrees
that Lessor may apply all or any portion of the Tax and Insurance Reserve Fund
to any obligation of Lessee hereunder. If all or any portion of the Tax and
Insurance Reserve Fund is applied to any obligation of Lessee hereunder, Lessee
shall immediately upon request of Lessor restore the Tax and Insurance Reserve
Fund to its original amount. Lessee shall not have the right to call upon Lessor
to apply all or any portion of the Tax and Insurance Reserve Fund to cure any
default or fulfill any obligation of Lessee hereunder, but such use shall be
solely in the discretion of Lessor. Upon any conveyance of the Leased Property
by Lessor, Lessor's right in the Tax and Insurance Reserve Fund shall be
transferred by Lessor to Lessor's transferee, and upon such transfer Lessee
releases Lessor herein named of any and all liability with respect to the fund,
its application and return, and Lessee agrees to look solely to such transferee
with respect thereto. The provisions of the previous sentence shall also apply
to subsequent transferees.
14. Financial Statements; Certificates. Lessee will cause to be delivered
to Lessor and Lessor's Mortgagee the following financial statements of Lessee
and Guarantor:
(i) as soon as practicable, (a) copies of all such financial
statements, proxy statements, notices, other communications, and reports as
Lessee and/or Guarantor shall send to its shareholders (at any time that Lessee
or Guarantor is not a public company) and (b) other information generally made
available to banks and other lenders (exclusive of proprietary information);
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Pennsylvania Lease Agreement
(ii) for any period that Lessee or Guarantor is a public company, as
soon as practicable, copies of all regular, current or periodic reports
(including reports on Form 10-K, Form 8-K and Form 10-Q) which Lessee or
Guarantor is or may be required to file with the Securities and Exchange
Commission or any governmental body or agency succeeding to the functions of the
Securities and Exchange Commission;
(iii) if Lessee or Guarantor shall no longer be a public company
required to file such reports with the Securities and Exchange Commission then,
for each such non-public company, within 120 days after the end of each fiscal
year, and within 60 days after the end of any other fiscal quarter, a
consolidated statement of earnings, and a consolidated statement of changes in
financial position, a consolidated statement of stockholders' equity, and a
consolidated balance sheet of such entity as of the end of each such year or
fiscal quarter, setting forth in each case in comparative form the corresponding
consolidated figures from the preceding annual audit or corresponding fiscal
quarter in the prior fiscal year, as appropriate, all in reasonable detail and
satisfactory in scope to Lessor and Lessor's Mortgagee, and certified to Lessee
and Guarantor as to the annual consolidated statements by independent public
accountants of recognized national standing selected by Lessee and Guarantor,
whose certificate shall be based upon an examination conducted in accordance
with generally accepted auditing standards and the application of such tests as
said accountants deem necessary under the circumstances;
Within sixty (60) days of the end of each calendar year, Lessee will cause to be
delivered to Lessor and Lessor's Mortgagee a certificate by an Executive Officer
of Lessee (i) that to the best of such officer's knowledge based on reasonable
inquiry, there exists no default or Event of Default under this Lease or if any
such default or Event of Default exists, specifying the nature thereof, the
period of existence thereof and what action Lessee proposes to take with respect
thereto, and (ii) detailing capital improvements made to the Leased Property and
operating expenses incurred with respect to the Leased Property during the prior
calendar year and a projection of such matters for the next calendar year. In
addition, Lessee agrees upon prior written request to meet with Lessor and
Lessor's Mortgagee during normal business hours at mutually convenient times,
from time to time, to discuss this Lease and such information about Lessee's
business and financial condition requested by Lessor.
Any information delivered to the Lessor pursuant to this Article 14 shall
not be deemed to be confidential. Lessor shall have the right to share the same
with Lessor's Mortgagee, potential mortgagees, rating agencies, servicers,
potential purchasers of the Leased Property or a beneficial interest therein and
all other parties having a legitimate business purpose for reviewing the same.
Any other information delivered by Lessee to Lessor that is not generally
available in the public domain shall be treated as confidential.
15. Purchase Procedure.
(a) In the event of the purchase of Lessor's interest in the Leased
Property by Lessee pursuant to any provision of this Lease, the terms and
conditions of this Article 15 shall apply.
(b) On the closing date fixed for the purchase of Lessor's interest in the
Leased Property:
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Pennsylvania Lease Agreement
(i) Lessee shall pay to Lessor, or as Lessor directs, in lawful
money of the United States in immediately available funds, at Lessor's address
herein stated or at any other place in the United States which Lessor may
designate, an amount equal to the purchase price described in such provision;
(ii) Lessor shall execute and deliver to Lessee a special warranty
deed, sufficient to convey insurable title to the Leased Property, and an
assignment and such other instrument or instruments as may be appropriate and
customary in accordance with prevailing local conveyancing practices, which
shall transfer all of Lessor's interest in the Leased Property, in each case
free and clear of any Mortgage, but subject to (A) any encumbrances existing on
the first day of the Term, (B) Permitted Encumbrances, (C) all liens,
encumbrances, charges, exceptions and restrictions attaching to the Leased
Property after the beginning of the Term (other than those created or caused by
or through Lessor without the consent of Lessee but excluding any Mortgage
created by or through Lessor), and (D) all Legal Requirements;
(iii) Lessee shall pay all charges incident to such transfer or the
termination of the Lease which are incurred by Lessor, Lessor's Mortgagee or
Lessee, including but not limited to all transfer taxes, recording fees, escrow
fees, title insurance premiums and federal, state and local taxes (except for
any net income or profit taxes of Lessor or Lessor's Mortgagee) and reasonable
attorneys' fees and expenses of Lessor's counsel and counsel to Lessor's
Mortgagee;
(iv) Lessee shall pay to Lessor all Basic Rent, Additional Rent and
other sums payable by Lessee under this Lease, due and payable through and
including the date Lessee purchases Lessor's interest in the Leased Property;
and
(v) Except for those warranties contained in the deed described in
subparagraph (b)(ii) of this Article 15, Lessor's transfer of its ownership in
the Leased Property shall be on an as-is basis, without any representation or
warranty, either express or implied, as to the design, condition, quality,
capacity, merchantability, habitability, durability, suitability or fitness of
the Leased Property for any particular purpose, or any other matter concerning
the Leased Property or any portion thereof.
16. Quiet Enjoyment. So long as no Event of Default under this Lease shall
have occurred and be continuing, Lessor covenants that Lessee shall and may at
all times peaceably and quietly have, hold and enjoy the Leased Property during
the Term of this Lease from any claim by, through, or under Lessor.
Notwithstanding the preceding sentence, (a) Lessor may exercise its rights and
remedies under Article 20 and (b) Lessor, Lessor's Mortgagee, and their agents
may enter upon and inspect the Leased Property, during normal business hours
after reasonable notice. Any failure by Lessor to comply with the foregoing
warranty shall not give Lessee any right to cancel or terminate this Lease, or
to ▇▇▇▇▇, reduce or make deduction from or offset against any Basic Rent or
Additional Rent or other sum payable under this Lease, or to fail to perform or
observe any other covenant, agreement or obligation hereunder or to recover any
damages against Lessor resulting therefrom. Subject to the foregoing sentence,
Lessee shall have the right to obtain injunctive or other relief against Lessor
for breach of the aforesaid covenant of peaceful and quiet possession and
enjoyment of the Leased Property.
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Pennsylvania Lease Agreement
17. Survival. In the event of the termination of this Lease as herein
provided, the obligations and liabilities of Lessee and Lessor, actual or
contingent, under this Lease which arose at or prior to such termination shall
survive such termination.
18. Subletting; Assignment.
(a) Lessee may sublet the Leased Property or any portion thereof, or
assign its interest in this Lease, provided that:
(i) No Event of Default under this Lease has occurred and is
continuing on the date of such sublease or assignment;
(ii) Each sublease or assignment shall expressly be made subject to
the provisions hereof; and
(iii) No sublease may extend beyond the then current Basic Term
Expiration Date, except (A) a sublease may extend no later than the end of the
term of the Year 20 Rent Reset Lease Amendment if such Rent Reset Lease
Amendment has been duly executed by Lessee and Lessor and (B) a sublease may
extend no later than the end of the term of the last Renewal Term with respect
to which Lessee has validly exercised its right pursuant to paragraph (b) of
Article 2.
(b) No such sublease or assignment shall affect or reduce any obligations
of Lessee or any Guarantor, or the rights of Lessor hereunder, and all
obligations of Lessee hereunder shall continue in full effect as the obligations
of a principal and not of a guarantor or surety, as though no subletting or
assignment had been made.
(c) Lessee shall, at least ten (10) days prior to the execution of any
such sublease or assignment, deliver to Lessor a certificate of an Executive
Officer stating that such sublease or assignment does not adversely affect the
fair market value of the Leased Property, that the uses under such sublease or
assignment are consistent with the business uses of property located in the same
general area as the Leased Property, and that the uses under such sublease will
comply with the requirements of Article 4 hereof, and within ten (10) days after
such execution, a conformed copy thereof and of any short form lease or
memorandum of lease which has been prepared for recording purposes.
(d) Neither this Lease nor the Term of this Lease shall be mortgaged by
Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to any
sublease of the Leased Property or any portion thereof or the rental payable
thereunder. Any such mortgage or pledge, and any sublease or assignment not
permitted by this Article 18, shall be void.
(e) Lessee shall pay as Additional Rent to Lessor on demand all reasonable
costs and expenses of Lessor and Lessor's Mortgagee (including in-house or
outside counsel attorneys' fees and expenses) in reviewing or executing any
instrument pursuant to this Article 18.
19. Advances by Lessor. If Lessee shall fail to make or perform any
payment or act required by this Lease, then, upon ten (10) Business Days' notice
to Lessee (or upon shorter notice or no notice, to the extent necessary to meet
an emergency or a governmental limitation),
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Pennsylvania Lease Agreement
Lessor may at its option make such payment or perform such act for the account
of Lessee, and Lessor shall not thereby be deemed to have waived any default or
released Lessee from any obligation hereunder. Amounts so paid by Lessor and all
incidental costs and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with such payment or performance shall
constitute Additional Rent and shall be paid by Lessee to Lessor on demand and
shall bear interest at the Overdue Rate from the date of Lessor's payment until
the date Lessor is reimbursed in full.
20. Conditional Limitations -- Events of Default and Remedies.
(a) Any occurrence or act specified herein as an immediate Event of
Default or any of the following occurrences or acts shall constitute an "Event
of Default" under this Lease:
(i) if Lessee shall (A) default in making payment of any installment
of Basic Rent when due as and where required pursuant to paragraph (a) of
Article 3, where such default continues for five (5) days following written
notice thereof to Lessee (provided, however, that Lessee shall not be entitled
to more than two (2) such written notices during any twelve (12) month period so
that if two (2) such written notices were given within the previous twelve (12)
months, an Event of Default will automatically exist without notice upon such a
default) or (B) default in making any payment of Additional Rent and such
default shall continue for fifteen days after Lessee's Actual Knowledge of such
default, or (C) fail to keep in full force and effect any insurance coverage
required to be maintained by Lessee hereunder or (D) default in its obligation
to purchase the Leased Property when required to do so by any provision of this
Lease, or (E) fail to timely pay any Taxes and Impositions when due (it being
agreed that such Taxes and Impositions shall not be deemed due if the same are
being contested by Lessee in strict compliance with paragraph (d) of Article 6,
hereof, and such contest and such failure to pay is in strict compliance with
said paragraph (d)); or (F) failure to discharge any charge, lien, security
interest, encumbrance or defect in title as and to the extent required (and
within the time periods required) by paragraph (a) of Article 7; or
(ii) if Lessee shall default in the performance of any other
covenant, agreement or obligation on the part of Lessee to be performed under
this Lease and such default shall continue for a period of 15 days after Actual
Knowledge thereof; provided, however, that in the case of a default which can
with reasonable diligence be remedied by Lessee, but not within a period of 15
days, if Lessee shall commence within such period of 15 days to remedy the
default and thereafter shall prosecute the remedying of such default with all
reasonable diligence, the period of time after obtaining such Actual Knowledge
of default within which to remedy the default shall be extended for such period
not to exceed an additional 30 days as may be reasonable to remedy the same with
all reasonable diligence; or
(iii) if Lessee or any Guarantor shall file a petition of bankruptcy
or for reorganization or for an arrangement pursuant to the Bankruptcy Code, or
shall be adjudicated a bankrupt or become insolvent or shall make an assignment
for the benefit of its creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall be dissolved, or shall suspend
payment of its obligations, or shall take any corporate action in furtherance of
any of the foregoing; or
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Pennsylvania Lease Agreement
(iv) if a petition or answer shall be filed proposing the
adjudication of Lessee or any Guarantor as a bankrupt, or its reorganization
pursuant to the Bankruptcy Code, and (A) Lessee or such Guarantor shall consent
to the filing thereof, or (B) such petition or answer shall not be discharged or
denied within 30 days after the filing thereof; or
(v) if a receiver, trustee or liquidator (or other similar official)
shall be appointed for or take possession or charge of Lessee or any Guarantor,
or Lessee's estate or interest in the Leased Property, and shall not be
discharged within 30 days thereafter, or if Lessee or any Guarantor shall
consent to or acquiesce in such appointment; or
(vi) if the Leased Property shall have been left unattended,
unsecured and without maintenance; or
(vii) if any Guarantor shall default under the terms of any guaranty
of the Lease beyond applicable grace or cure periods, if any; or shall disavow,
repudiate or reject such guaranty or any or all of its obligations thereunder,
or otherwise claim or assert that it is no longer bound by any such guaranty in
whole or in part or that any or all of its obligations thereunder are not
enforceable against it in whole or in part; or
(viii) if (a) Lessee or (b) any person conveying title to the Leased
Property to Lessor or (c) any Guarantor has made a material misrepresentation
under this Lease or any Guaranty or any certificate or writing tendered in
connection with the execution and delivery of this Lease.
(ix) Intentionally Omitted.
(x) Intentionally Omitted.
(xi) Intentionally Omitted.
(xii) Intentionally Omitted.
(xiii) Intentionally Omitted.
(b) This Lease and the term and estate hereby granted are subject to the
limitation that whenever an Event of Default shall have occurred and be
continuing, Lessor may, at Lessor's option, elect to (i) re-enter the Leased
Property, without notice, and remove all Persons and property therefrom, either
by summary proceedings or by any suitable action or proceeding at law, or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may have, hold and enjoy the Leased Property, together with the
appurtenances thereto and the improvements thereon; and/or (ii) terminate this
Lease at any time by giving notice in writing to Lessee, electing to terminate
this Lease and specifying the date of termination, and the Term of this Lease
shall expire by limitation at midnight on the date specified in such notice as
fully and completely as if said date were the date originally fixed for the
expiration of the Term, and Lessee shall thereupon quit and peacefully surrender
the Leased Property to Lessor, without any payment therefor by Lessor; and/or
(iii) enforce all rights and remedies available to it in law and in equity,
including without limitation the right of specific performance of any of
Lessee's obligations hereunder.
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Pennsylvania Lease Agreement
(c) In case of any such re-entry, termination and/or dispossession as
provided in the immediately preceding paragraph, (i) the Basic Rent and
Additional Rent shall become due thereupon and be paid up to the time of such
re-entry, dispossession and/or termination, together with such expenses,
including reasonable attorneys' fees, as Lessor shall incur in connection with
such re-entry, termination and/or dispossession; and (ii) Lessor may in good
faith relet the Leased Property or any part thereof (but shall be under no
obligation to do so except to the extent required by law) for its sole account
without any duty to account therefor to Lessee, either in the name of Lessor or
otherwise, for a term or terms which may, at Lessor's option, be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term; (iii) Lessee shall pay to Lessor the present value (using
the Discount Rate) of the excess of the total rent reserved over the remainder
of the Term over the rental value of the Leased Property as reasonably
determined by Lessor for said residue of the Term; (iv) Lessee shall also pay to
Lessor the amount by which the Basic Rent exceeds the net amount, if any, of the
rents collected on account of the leases of the Leased Property for each monthly
period which would otherwise have constituted the Term, which amounts shall be
paid in monthly installments by Lessee on the respective Installment Payment
Dates specified therefor, and any suit brought to collect said amounts for any
period shall not prejudice in any way the rights of Lessor to collect the
deficiency in any subsequent period by a similar action or proceeding (in
calculating the amounts to be paid by Lessee under this clause (iv), Lessee
shall be credited with any amount paid to Lessor as compensation under clause
(iii) above); and (v) Lessee shall also pay to Lessor all other damages and
expenses which Lessor shall reasonably have sustained by reason of the breach of
any provision of this Lease, including without limitation reasonable attorneys'
fees and expenses, brokerage commissions and expenses incurred in altering,
repairing and putting the Leased Property in good order and condition and in
preparing the same for reletting, which expenses shall be paid by Lessee as they
are incurred by Lessor. In calculating the rent reserved for the residue of the
Term, there shall be included, in addition to the Basic Rent, all Additional
Rent and the value of all other consideration agreed to be paid or performed by
Lessee for said residue. In addition, for all purposes under this paragraph (c)
if such Event of Default occurs before the Year 5 Expiration Date, Basic Rent
shall be calculated at the rate set forth on Schedule B for the first five (5)
years of the Term as if such Basic Rent were not to be reset in accordance with
the provisions of Article 23 hereof and shall be deemed to include a payment on
the Year 5 Expiration Date equal to the Termination Value as of such date. If
such Event of Default occurs after the Year 5 Expiration Date, Basic Rent shall
be calculated based on the Basic Rent then in effect and shall include an amount
equal to the Termination Value, if any, as of the date of determination. Lessor,
at Lessor's option, may make such alterations or decorations in the Leased
Property as Lessor, in Lessor's sole judgment, considers advisable and necessary
for the purpose of reletting the Leased Property; and the making of such
alterations or decorations shall not operate or be construed to release Lessee
from liability hereunder as aforesaid.
Notwithstanding the foregoing, Lessor may at any time, by notice to
Lessee, elect to recover, and Lessee shall pay, as liquidated damages, in
addition to any other proper claims but in lieu of and not in addition to any
amount which would thereafter become payable under the preceding clause (iv), an
amount equal to the sum of the Termination Value on the date on which Lessor
demands such payment together with the Reinvestment Premium thereon less the
present value (using the Discount Rate) of the fair market rental value of the
Leased Property for the remainder of the Term. In calculating the amounts to be
paid by Lessee under this paragraph, Lessee shall be credited with any amount
paid to Lessor as compensation under clause (iii) of the
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immediately preceding paragraph hereof. It is the express intention of Lessor
and Lessee that Lessor's rights under this grammatical paragraph shall be
available after any Event of Default hereunder, including, without limitation, a
default in Lessee's obligation to purchase the Leased Property when required to
do so by any provision of this Lease (including, without limitation the
provisions of Article 23).
(d) No receipt of moneys by Lessor from Lessee after a termination of this
Lease by Lessor shall reinstate, continue or extend the Term of this Lease or
affect any notice theretofore given to Lessee, or operate as a waiver of the
right of Lessor to enforce the payment of Basic Rent and Additional Rent, and
any Termination Value or Reinvestment Premium or related amounts to be paid by
Lessee to Lessor for the purchase of the Leased Property or otherwise then due
or thereafter falling due, it being agreed that after the commencement of suit
for possession of the Leased Property, or after final order or judgment for the
possession of the Leased Property, Lessor may demand, receive and collect any
moneys due or thereafter falling due without in any manner affecting such suit,
order or judgment, all such moneys collected being deemed payments on account of
the use and occupation of the Leased Property or, at the election of Lessor, on
account of Lessee's liability hereunder. Lessee hereby waives any and all rights
of redemption provided by any law, statute or ordinance now in effect or which
may hereafter be enacted.
(e) The word "re-enter", as used in this Lease, shall not be restricted to
its technical legal meaning, but is used in the broadest sense. No such taking
of possession of the Leased Property by Lessor shall constitute an election to
terminate the Term of this Lease unless notice of such intention is given to
Lessee or unless such termination be decreed by a court.
(f) If an action shall be brought for the enforcement of any provision of
this Lease, in which it is found that an Event of Default has occurred, Lessee
shall pay to Lessor all costs and other expenses which may become payable as a
result thereof, including reasonable attorneys' fees and expenses.
(g) In the event Lessee shall wrongfully holdover after the expiration or
termination of the Term of this Lease, and without derogating from any of
Lessor's rights hereunder without granting any rights of possession to Lessee,
Lessee shall be liable to Lessor for a use and occupancy fee, in an amount equal
to 200% of the Basic Rent payable immediately prior to such expiration or
termination for such period of holdover, plus all Additional Rent Lessee would
have been liable for hereunder had such expiration or termination not occurred.
In addition, Lessee hereby indemnifies Lessor against all loss, cost, and damage
arising from Lessee's failure to surrender the Leased Property in accordance
with the terms hereof. This indemnification shall survive the termination or
expiration of this Lease.
(h) No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to any other legal or equitable right
or remedy given hereunder, or at any time existing. The failure of Lessor to
insist upon the strict performance of any provision or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. Receipt by Lessor of any
Basic Rent or Additional Rent or any other sum payable hereunder with knowledge
of the breach of any provision contained in
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this Lease shall not constitute a waiver of such breach, and no waiver by Lessor
or Lessee of any provision of this Lease shall be deemed to have been made
unless made under signature of an authorized representative of such party.
21. Granting of Easements, Etc. If no Event of Default has occurred and is
continuing, Lessee may from time to time in writing request Lessor to join with
Lessee (at Lessee's cost and expense), to (i) grant easements, licenses, rights
of way and other rights and privileges in the nature of easements for the
purposes of providing utilities and the like to the Leased Property, (ii)
release existing easements and appurtenances relating to the provision of
utilities and the like to the Leased Property and (iii) execute and deliver any
instrument, in form and substance reasonably acceptable to Lessor, necessary or
appropriate to make or confirm such grants or releases to any Person, without
consideration and Lessor shall join in the same (at Lessees's sole cost and
expense); provided that an authorized representative of Lessee shall have
certified to Lessor and Lessor's Mortgagee that such grant or release does not
materially interfere with and is not materially detrimental to the conduct of
business on the Leased Property and does not adversely affect the utility,
useful life or fair market value of the Leased Property. Notwithstanding the
foregoing, Lessor and/or Lessor's Mortgagee may condition its consent to such
action on being provided evidence satisfactory to each in its sole discretion
that such action presents no material risk of liability, expense or adverse tax
consequences to Lessor or Lessor's Mortgagee or the holder of any CMBS or any
Certificate Holder. Lessee shall pay as Additional Rent to Lessor on demand all
reasonable costs and expenses of Lessor and Lessor's Mortgagee (including
attorneys' fees) in reviewing or executing any instrument pursuant to this
Article 21.
22. No Plan Assets. Lessee represents, warrants and agrees that none of
Lessee's assets (i) are, or at any time while the Lease is in effect will be,
assets of (A) an "employee benefit plan" as defined in the Employee Retirement
Income Security Act of 1974, as Amended (ERISA), which is subject to ERISA, (B)
a "plan" as defined in the Internal Revenue Code of 1986, as amended (the Code),
or (C) another employee benefit plan subject to any federal, state, local or
foreign law substantially similar to Section 406 of ERISA or Section 4975 of the
Code (any such "employee benefit plan," "plan" or other employee benefit plan, a
Plan), or (ii) are, or at any such time will be, deemed for purposes or ERISA or
Section 4975 of the Code (or, in the case of such another employee benefit plan,
any such substantially similar law) to be assets of a Plan.
23. Rejectable Offers; Other Rent Payments; Rent Reset.
(a) (i) At Year 5: On or before the date (5 Year Notice Date) which is 365
days prior to the Year 5 Expiration Date (defined in item 6 of Schedule B) (but
no earlier than 540 days prior to the Year 5 Expiration Date), Lessee shall be
obligated to elect and to send written notice (the 5 Year Notice) to Lessor and
Lessor's Mortgagee of its irrevocable and unconditional election to do one of
the following: (i) to pay the Year 5 Rent Payment to Lessor on the Year 5
Expiration Date together with all Basic Rent, Additional Rent and any other sums
due and payable under this Lease, or (ii) to amend the amount of Basic Rent
payable monthly hereunder for the remainder of the Basic Term after the Rent
Reset Effective Date (hereafter defined) pursuant to a Rent Reset Lease
Amendment (hereinafter defined) (the Year 5 Rent Reset Option). If Lessee fails
to provide the 5 Year Notice in a timely manner, then, as of the 5 Year
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Pennsylvania Lease Agreement
Notice Date, Lessee shall be deemed to have irrevocably and unconditionally
elected, and hereby does irrevocably and unconditionally elect, without further
action, the Year 5 Rent Reset Option.
(ii) Commencing promptly after Lessee timely elects (or is deemed to
elect) a Year 5 Rent Reset Option:
(A) Lessor or an Affiliate of Lessor which directly or
indirectly owns a controlling interest in Lessor will use its commercially
reasonable efforts to arrange nonrecourse financing from one or more
Institutional Investors through the issuance of a promissory note at an interest
rate and with monthly payments of interest only with the principal balance of
such note being due and payable on the Year 10 Expiration Date. The interest
rate determined under the preceding sentence will reflect Lessor's or such
Affiliate's actual cost of borrowing money at such time taking into account the
creditworthiness of Lessee and Guarantor and the terms and conditions of this
Lease. Lessor will notify Lessee of the terms of the proposed financing (the
Year 5 B Rent Notice). Lessee will have forty-five (45) days after receipt of
Lessor's Year 5 B Rent Notice to accept either the proposed financing, or if
Lessee is not satisfied with the financing terms Lessor proposes, then Lessee
may, within such forty-five (45) day period, notify Lessor that it elects to
cause Lessor (or such Affiliate specified by Lessor in the Year 5 B Rent Notice,
as the case may be) to issue a non-recourse promissory note to one or more
Institutional Investors which Lessee selects. In such case, Lessor (or such
Affiliate) will be required to accept such financing and to issue a promissory
note to such Institutional Investor (or Institutional Investors) which Lessee
has selected; provided, all of the terms of such financing are equivalent to or
more favorable than the financing of which Lessor has informed Lessee in its
Year 5 B Rent Notice. If Lessee fails within such forty-five (45) day period to
approve such financing proposed by Lessor in the Year 5 B Rent Notice or to
notify Lessor within such period that it is not satisfied with the terms of such
proposed financing and that it elects to cause Lessor to accept the financing
arranged by Lessee, then the financing proposed by Lessor in its Year 5 B Rent
Notice will be binding and conclusive. The refinancing selected pursuant to this
subsection is called a "Qualified Financing" and a "Year 5 B Financing".
(B) Lessor (or such Affiliate of Lessor) will, pursuant to
such Year 5 B Financing, issue a promissory note to one or more Institutional
Investors, in an aggregate principal amount equal to the sum of (A) the Property
Subaccount B (as defined in Schedule C) as of the Year 5 Rent Reset Effective
Date, and (B) the reasonable costs and expenses of Lessor and such Affiliate and
the purchasers of the Successor Note incident to the issuance thereof (such
costs and expenses incident to the issuance of any promissory note (including,
without limitation, a Successor Note) under this Article 23 being referred to
herein as Rent Reset Closing Costs).
(C) Lessor will use its commercially reasonable efforts to
arrange nonrecourse financing from one or more Institutional Investors through
the issuance of a Successor Note at an interest rate and with monthly payments
of principal and interest sufficient to amortize the principal balance of the
Successor Note through the payment of 180 equal monthly installments. The
interest rate determined under the preceding sentence will reflect Lessor's cost
of borrowing money at such time taking into account the creditworthiness of
Lessee and Guarantor and the terms and conditions of this Lease. Lessor will
notify Lessee of the terms of the proposed financing (the Year 5 A Rent Notice).
Lessee will have forty-five (45) days after receipt of Lessor's Year 5 A Rent
Notice to accept either the proposed financing, or if Lessee is
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Pennsylvania Lease Agreement
not satisfied with the financing terms Lessor proposes, then Lessee may, within
such forty-five (45) day period, notify Lessor that it elects to cause Lessor to
issue a non-recourse promissory note to one or more Institutional Investors
which Lessee selects. In such case, Lessor will be required to accept such
financing and to issue a promissory note to such Institutional Investor (or
Institutional Investors) which Lessee has selected; provided, all of the terms
of such financing are equivalent to or more favorable than the financing of
which Lessor has informed Lessee in its Year 5 A Rent Notice. If Lessee fails
within such forty-five (45) day period to approve such financing proposed by
Lessor in the Year 5 A Rent Notice or to notify Lessor within such period that
it is not satisfied with the terms of such proposed financing and that it elects
to cause Lessor to accept the financing arranged by Lessee, then the financing
proposed by Lessor in its Year 5 A Rent Notice will be binding and conclusive.
The refinancing selected pursuant to this subsection is called a "Qualified
Financing" and a "Year 5 A Financing".
(D) Lessor will, pursuant to such Year 5 A Financing, issue a
promissory note to one or more Institutional Investors, in an aggregate
principal amount equal to the sum of (A) the Property Subaccount A (as defined
in Schedule C) as of the Year 5 Rent Reset Effective Date, and (B) the Rent
Reset Closing Costs incident to the issuance of such Successor Note.
(E) Notwithstanding anything to the contrary herein, it is
expressly agreed that the Year 5 A Financing and the Year 5 B Financing shall
close, if at all, simultaneously and neither shall close unless both so close
and the failure of either or both such Qualified Financings to close shall cause
the provisions of subparagraph (v) of this paragraph (a) to apply.
(iii) In connection with and concurrently with the issuance of the
promissory notes pursuant to the Year 5 A Financing and the Year 5 B Financing,
Lessor and Lessee will amend this Lease pursuant to an amendment (Year 5 Rent
Reset Lease Amendment), effective as of the date on which Lessor has received
the proceeds of each such promissory note (the Year 5 Rent Reset Effective
Date). The Year 5 Rent Reset Lease Amendment will (w) modify the Basic Rent so
that the Basic Rent payable in advance each month equals a sum sufficient to pay
when due the sum of principal of and interest on each such promissory note over
the term of each such promissory note, (x) establish Termination Values (which
shall always be equal to the sum of 100% of the Property Account plus 10% of the
Original Purchase Price) applicable for the term covered by the Rent Reset Lease
Amendment, (y) establish the Property Subaccount A and the Property Subaccount B
for the term covered by the Rent Reset Lease Amendment in accordance with the
definitions of Property Subaccount A and Property Subaccount B in Schedule C,
and (z) provide such other changes to this Lease as may be required by Lessor
and/or the purchaser(s) of such promissory notes, to the extent consented to by
Lessee or specified in Lessor's Year 5 A Rent Notice or Lessor's Year 5 B Rent
Notice.
(iv) Lessee expressly agrees that the foregoing determinations of
the Qualified Financings will be conclusive for all purposes. Lessee agrees not
to assert, and hereby expressly, irrevocably and unconditionally waives, any
claim whatsoever that any refinancing was not the best available and any defense
to pay rent or any other amounts arising out of the terms of the refinancing.
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(v) Notwithstanding anything contained herein to the contrary, if
for any reason (A) Lessor does not, by the date thirty (30) days before the Year
5 Expiration Date, or if such day is not a Business Day, on the immediately
preceding Business Day, actually receive free and clear net proceeds of
promissory notes financed in cash or other immediately available funds and in an
amount at least as great as the then current Property Account, and (B) such net
proceeds have not been delivered by such date to Lessor's Mortgagee (if any) or
its designee (or, if there is no Lessor's Mortgagee to Lessor or its designee)
then Lessee will be deemed to have irrevocably and unconditionally elected, and
hereby does irrevocably and unconditionally elect, without further action, to
pay the Year 5 Rent Payment to Lessor on the Year 5 Expiration Date together
with any other sums due and payable under this Lease.
(b) (i) At Year 10: On or before the date (10 Year Notice Date) which is
365 days prior to the Year 10 Expiration Date (defined in item 6 of Schedule B)
(but no earlier than 540 days prior to the Year 10 Expiration Date), Lessee
shall be obligated to elect and to send written notice (the 10 Year Notice) to
Lessor of its irrevocable and unconditional election to do one of the following:
(i) to pay the Final Rent Payment to Lessor on the Year 10 Expiration Date
together with all Basic Rent, Additional Rent and any other sums due and payable
under this Lease, or (ii) to extend the Basic Term through the Year 15
Expiration Date and amend the amount of Basic Rent payable monthly hereunder for
the remainder of the Basic Term after the Rent Reset Effective Date (hereafter
defined) pursuant to a Rent Reset Lease Amendment (hereinafter defined) (the
Year 10 Rent Reset Option). If Lessee fails to provide the 10 Year Notice in a
timely manner, then, as of the 10 Year Notice Date, Lessee shall be deemed to
have irrevocably and unconditionally elected, and hereby does irrevocably and
unconditionally elect, without further action, the Year 10 Rent Reset Option. As
provided in paragraph (b) of Article 2, Lessee's right to extend the Term for
the first of its four (4) five (5) year renewal terms (which is available to
Lessee as of the Year 10 Expiration Date, but only if Lessee elects to make the
Final Rent Payment), must be exercised no later than the date of the 10 Year
Notice.
(ii) Commencing promptly after Lessee timely elects (or is deemed to
elect) a Year 10 Rent Reset Option, Lessor will use its commercially reasonable
efforts to arrange nonrecourse financing from one or more Institutional
Investors through the issuance of a Successor Note at an interest rate and with
monthly payments of principal and interest sufficient to amortize the principal
balance of the Successor Note through the payment of 240 equal monthly
installments. The interest rate determined under the preceding sentence will
reflect Lessor's actual cost of borrowing money at such time taking into account
the creditworthiness of Lessee and Guarantor and the terms and conditions of
this Lease. Lessor will notify Lessee of the terms of the proposed financing
(the Year 10 Notice). Lessee will have forty-five (45) days after receipt of
Lessor's Year 10 Notice to accept either the proposed financing, or if Lessee is
not satisfied with the financing terms Lessor proposes, then Lessee may, within
such forty-five (45) day period, notify Lessor that it elects to cause Lessor to
issue a non-recourse Successor Note to one or more Institutional Investors which
Lessee selects. In such case, Lessor will be required to accept such financing
and to issue a Successor Note to such Institutional Investor (or Institutional
Investors) which Lessee has selected; provided, all of the terms of such
financing are equivalent to or more favorable than the financing of which Lessor
has informed Lessee in its Year 10 Notice. If Lessee fails within such
forty-five (45) day period to approve such financing proposed by Lessor in the
Year 10 Notice or to notify Lessor within such period that it is not satisfied
with the terms of such proposed financing and that it elects to cause Lessor to
accept the
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Pennsylvania Lease Agreement
financing arranged by Lessee, then the financing proposed by Lessor in its Year
10 Notice will be binding and conclusive. The refinancing selected pursuant to
this subsection is called a "Qualified Financing".
(iii) Lessor will, pursuant to such Qualified Financing, issue a
Successor Note to one or more Institutional Investors, in an aggregate principal
amount equal to the sum of (A) the Property Account (as defined in Schedule C)
as of the Year 10 Rent Reset Effective Date, and (B) the Rent Reset Closing
Costs incident to the issuance of such Successor Note. In connection with and
concurrently with the issuance of the Successor Note, Lessor and Lessee will
amend this Lease pursuant to an amendment (Year 10 Rent Reset Lease Amendment),
effective as of the date on which Lessor has received the proceeds of the
Successor Note, which date shall not be earlier than the date which the Note, by
its terms, is permitted to be prepaid in full at par (the Year 10 Rent Reset
Effective Date). The Year 10 Rent Reset Lease Amendment will (w) modify the
Basic Rent so that the Basic Rent payable in advance each month equals a sum
sufficient to pay when due the principal of and interest on the Successor Note
over the term of the Successor Note, (x) establish Termination Values (which
shall always be equal to the sum of 100% of the Property Account plus 10% of the
Original Purchase Price) applicable for the term covered by the Rent Reset Lease
Amendment, (y) establish the Property Subaccount A for the term covered by the
Rent Reset Lease Amendment in accordance with the definition of Property
Subaccount A in Schedule C, and (z) provide such other changes to this Lease as
may be required by Lessor and/or the purchaser(s) of the Successor Note, to the
extent consented to by Lessee or specified in Lessor's Year 10 Notice.
(iv) Lessee expressly agrees that the foregoing determination of the
Qualified Financing will be conclusive for all purposes. Lessee agrees not to
assert, and hereby expressly, irrevocably and unconditionally waives, any claim
whatsoever that any refinancing was not the best available and any defense to
pay rent or any other amounts arising out of the terms of the refinancing.
(v) Notwithstanding anything contained herein to the contrary, if
for any reason Lessor does not, by the date thirty (30) days before the Year 10
Expiration Date, or if such day is not a Business Day, on the immediately
preceding Business Day, actually receive free and clear net proceeds of a
Successor Note financed in cash or other immediately available funds and in an
amount at least as great as the then current Property Account, then Lessee will
be deemed to have irrevocably and unconditionally elected, and hereby does
irrevocably and unconditionally elect, without further action, to pay the Final
Rent Payment to Lessor on the Year 10 Expiration Date together with any other
sums due and payable under this Lease.
(c) (i) At Year 15. If and only if a Year 10 Rent Reset Lease Amendment
has been executed, on before the date (15 Year Notice Date) which is 365 days
prior to the Year 15 Expiration Date (defined in item 6 of Schedule B) (but no
earlier than 540 days prior to the Year 15 Expiration Date), Lessee shall be
obligated to elect and to send written notice (the 15 Year Notice) to Lessor of
its irrevocable and unconditional election to do one of the following: (i) to
make an irrevocable offer to purchase the Lased Property on the Year 15
Expiration Date for a price at least equal to the sum of the Property Account as
of the Year 15 Expiration Date plus 10% of the Original Purchase Price (the
Minimum Year 15 Price), in accordance with Article 15 (a Year 15 Rejectable
Offer), or (ii) to extend the Basic Term through the Year 20 Expiration
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Pennsylvania Lease Agreement
Date and amend the amount of Basic Rent payable monthly hereunder for the
remainder of the Basic Term after the Year 15 Rent Reset Effective Date
(hereafter defined) pursuant to a Year 15 Rent Reset Lease Amendment
(hereinafter defined) (the Year 15 Rent Reset Option). If Lessee fails to
provide the 15 Year Notice in a timely manner, then, as of the 15 Year Notice
Date, Lessee shall be deemed to have irrevocably and unconditionally elected,
and hereby does irrevocably and unconditionally elect, without further action,
the Year 15 Rent Reset Option. As provided in paragraph (b) of Article 2,
Lessee's right to extend the Term for the first of its four (4) five (5) year
renewal terms (which is available to Lessee as of the Year 15 Expiration Date,
but only if Lessee elects to make a Year 15 Rejectable Offer and the same is
rejected by Lessor in accordance with the terms hereof), must be exercised no
later than the date of the 15 Year Notice.
(ii) Commencing promptly after Lessee timely elects (or is deemed to
elect) a Year 15 Rent Reset Option, Lessor will use its commercially reasonable
efforts to arrange nonrecourse financing from one or more Institutional
Investors through the issuance of a Successor Note at an interest rate and with
monthly payments of principal and interest sufficient to amortize the principal
balance of the Successor Note through the payment of 240 equal monthly
installments. The interest rate determined under the preceding sentence will
reflect Lessor's actual cost of borrowing money at such time taking into account
the creditworthiness of Lessee and Guarantor and the terms and conditions of
this Lease. Lessor will notify Lessee of the terms of the proposed financing
(the Year 15 Notice). Lessee will have forty-five (45) days after receipt of
Lessor's Year 15 Notice to accept either the proposed financing, or if Lessee is
not satisfied with the financing terms Lessor proposes, then Lessee may, within
such forty-five (45) day period, notify Lessor that it elects to cause Lessor to
issue a non-recourse Successor Note to one or more Institutional Investors which
Lessee selects. In such case, Lessor will be required to accept such financing
and to issue a Successor Note to such Institutional Investor (or Institutional
Investors) which Lessee has selected; provided, all of the terms of such
financing are equivalent to or more favorable than the financing of which Lessor
has informed Lessee in its Year 15 Notice. If Lessee fails within such
forty-five (45) day period to approve such financing proposed by Lessor in the
Year 15 Notice or to notify Lessor within such period that it is not satisfied
with the terms of such proposed financing and that it elects to cause Lessor to
accept the financing arranged by Lessee, then the financing proposed by Lessor
in its Year 15 Notice will be binding and conclusive. The refinancing selected
pursuant to this subsection is called a "Qualified Financing".
(iii) Lessor will, pursuant to such Qualified Financing, issue a
Successor Note to one or more Institutional Investors, in an aggregate principal
amount equal to the sum of (A) the Property Account (as defined in Schedule C)
as of the Year 15 Rent Reset Effective Date, and (B) the Rent Reset Closing
Costs incident to the issuance of such Successor Note. In connection with and
concurrently with the issuance of the Successor Note, Lessor and Lessee will
amend this Lease pursuant to an amendment (Year 15 Rent Reset Lease Amendment),
effective as of the date on which Lessor has received the proceeds of the
Successor Note, which date shall not be earlier than the date which the Note, by
its terms, is permitted to be prepaid in full at par (the Year 15 Rent Reset
Effective Date). The Year 15 Rent Reset Lease Amendment will (w) modify the
Basic Rent so that the Basic Rent payable in advance each month equals a sum
sufficient to pay when due the principal of and interest on the Successor Note
over the term of the Successor Note, (x) establish Termination Values (which
shall always be equal to the sum
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Pennsylvania Lease Agreement
of 100% of the Property Account plus 10% of the Original Purchase Price)
applicable for the term covered by the Year 15 Rent Reset Lease Amendment, (y)
establish the Property Subaccount A for the term covered by the Year 15 Rent
Reset Lease Amendment in accordance with the definition of Property Subaccount A
in Schedule C, and (z) provide such other changes to this Lease as may be
required by Lessor and/or the purchaser(s) of the Successor Note, to the extent
consented to by Lessee or specified in Lessor's Year 15 Notice.
(iv) Lessee expressly agrees that the foregoing determination of the
Qualified Financing will be conclusive for all purposes. Lessee agrees not to
assert, and hereby expressly, irrevocably and unconditionally waives, any claim
whatsoever that any refinancing was not the best available and any defense to
pay rent or any other amounts arising out of the terms of the refinancing.
(v) Notwithstanding anything contained herein to the contrary, if
for any reason Lessor does not, by the date ninety (90) days before the Year 15
Expiration Date, or if such day is not a Business Day, on the immediately
preceding Business Day, actually receive free and clear net proceeds of a
Successor Note financed in cash or other immediately available funds and in an
amount at least as great as the then current Property Account, then Lessee will
be deemed to have irrevocably and unconditionally elected, and hereby does
irrevocably and unconditionally elect, without further action, to make an
irrevocable and unconditional Year 15 Rejectable Offer for the Minimum Year 15
Price.
(vi) If Lessee shall have made or shall be deemed to have made a
Year 15 Rejectable Offer, Lessor will have until the date which is sixty (60)
days before the Year 15 Expiration Date to accept or reject the Year 15
Rejectable Offer; provided, however, that if Lessor does not accept or reject
the Year 15 Rejectable Offer at least sixty (60) days before the Year 15
Expiration Date, Lessor will irrevocably and unconditionally be deemed to have
accepted such offer, without further action. If Lessor accepts or is deemed to
accept the Year 15 Rejectable Offer, then on the Year 15 Expiration Date, or if
such day is not a Business Day, on the immediately preceding Business Day,
Lessee will purchase the Leased Property for a purchase price equal to the
greater of the Minimum Year 15 Price or the purchase price set forth in the Year
15 Rejectable Offer in cash, plus all Basic Rent, Additional Rent and any other
sums then due and payable hereunder by Lessee for the period through the date of
such purchase, in accordance with Article 15 (collectively, the Year 15 Purchase
Price). Upon payment of such purchase price and all such sums by the Lessee,
this Lease shall terminate and Lessor, at the expense of Lessee, shall convey
the Leased Property to Lessee or its designee in accordance with Article 15.
(d) (i) At Year 20: If and only if a Year 15 Rent Reset Lease Amendment
has been executed on or before the date which is three hundred sixty-five (365)
days before the Year 20 Expiration Date (the 20 Year Notice Date), Lessee shall
send written notice (the Year 20 Notice) to Lessor of its irrevocable election
to do one of the following: (A) to make an irrevocable offer to purchase the
Leased Property on the Year 20 Expiration Date for a price at least equal to the
sum of the Property Account as of the Year 20 Expiration Date plus 10% of the
Original Purchase Price (the Minimum Year 20 Price), in accordance with Article
15 (a Year 20 Rejectable Offer), or (B) to renew this Lease for the First
Renewal Term which shall be that period of time after the Year 20 Expiration
Date which is equal to the lesser of (1) nine (9) years
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and six (6) months and (2) 74.99% of the remaining economic useful life of the
Leased Property as of the Year 20 Expiration Date pursuant to a Year 20 Rent
Reset Lease Amendment (hereinafter defined) (the Year 20 Rent Reset Option). The
remaining economic useful life of the Leased Property will be determined in
accordance with the appraisal procedure set forth in Schedule H hereof, except
instead of determining market rent, the appraisers will determine the remaining
useful life of the Leased Property as of the Year 20 Expiration Date. If Lessee
fails to provide the 20 Year Notice in a timely manner, then as of the 20 Year
Notice Date, Lessee shall be deemed to have irrevocably and unconditionally
elected, and hereby does irrevocably and unconditionally elect, without further
action, the Year 20 Rent Reset Option. As provided in paragraph (b) of Article
2, Lessee's right to extend the Term for the first of its four (4) five (5) year
renewal terms (which is available to Lessee as of the Year 20 Expiration Date,
but only if Lessee elects to make a Year 20 Rejectable Offer and the same is
subsequently rejected in accordance with the terms hereof by the Lessee), must
be exercised no later than the date of the 20 Year Notice.
(ii) Commencing promptly after Lessee timely elects (or is deemed to
elect) a Year 20 Rent Reset Option, Lessor will use its commercially reasonable
efforts to arrange nonrecourse financing from one or more Institutional
Investors through the issuance of a Successor Note at an interest rate and with
monthly payments of principal and interest sufficient to amortize the principal
balance of the Successor Note through the payment of 240 equal monthly
installments (the First Renewal Term Expiration Date). The interest rate
determined under the preceding sentence will reflect Lessor's actual cost of
borrowing money at such time taking into account the creditworthiness of Lessee
and Guarantor and the terms and conditions of this Lease. Lessor will notify
Lessee of the terms of the proposed financing (the Year 20 Notice). Lessee will
have forty-five (45) days after receipt of Lessor's Year 20 Notice to accept
either the proposed financing, or if Lessee is not satisfied with the financing
terms Lessor proposes, then Lessee may, within such forty-five (45) day period,
notify Lessor that it elects to cause Lessor to issue a non-recourse Successor
Note to one or more Institutional Investors which Lessee selects. In such case,
Lessor will be required to accept such financing and to issue a Successor Note
to such Institutional Investor (or Institutional Investors) which Lessee has
selected; provided, all of the terms of such financing are equivalent to or more
favorable than the financing of which Lessor has informed Lessee in its Year 20
Notice. If Lessee fails within such forty-five (45) day period to approve such
financing proposed by Lessor in the Year 20 Notice or to notify Lessor within
such period that it is not satisfied with the terms of such proposed financing
and that it elects to cause Lessor to accept the financing arranged by Lessee,
then the financing proposed by Lessor in its Year 20 Notice will be binding and
conclusive. The refinancing selected pursuant to this subsection is called a
"Qualified Financing".
(iii) Lessor will, pursuant to such Qualified Financing, issue a
Successor Note to one or more Institutional Investors, in an aggregate principal
amount equal to the sum of (A) the Property Account (as defined in Schedule C)
as of the Rent Reset Effective Date, and (B) the Rent Reset Closing Costs
incident to the issuance of such Successor Note. In connection with and
concurrently with the issuance of the Successor Note, Lessor and Lessee will
amend this Lease pursuant to an amendment (Year 20 Rent Reset Lease Amendment),
effective as of the date on which Lessor has received the proceeds of the
Successor Note, which date shall not be earlier than the date which the Note, by
its terms, is permitted to be prepaid in full at par (the Year 20 Rent Reset
Effective Date). The Year 20 Rent Reset Lease Amendment will (w) modify
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Pennsylvania Lease Agreement
the Basic Rent so that the Basic Rent payable in advance each month equals a sum
sufficient to pay when due the principal of and interest on the Successor Note
over the term of the Successor Note, (x) establish Termination Values (which
shall always be equal to the sum of 100% of the Property Account plus 10% of the
Original Purchase Price) applicable for the term covered by the Year 20 Rent
Reset Lease Amendment, (y) establish the Property Subaccount A for the term
covered by the Year 20 Rent Reset Lease Amendment in accordance with the
definition of Property Subaccount A in Schedule C, and (z) provide such other
changes to this Lease as may be required by Lessor and/or the purchaser(s) of
the Successor Note, to the extent consented to by Lessee or specified in
Lessor's Year 20 Notice.
(iv) Lessee expressly agrees that the foregoing determination of the
Qualified Financing will be conclusive for all purposes. Lessee agrees not to
assert, and hereby expressly, irrevocably and unconditionally waives, any claim
whatsoever that any refinancing was not the best available and any defense to
pay rent or any other amounts arising out of the terms of the refinancing.
(v) Notwithstanding anything contained herein to the contrary, if
Lessee shall have elected to renew this Lease for the First Renewal Term and if
for any reason Lessor does not, by the date ninety (90) days before the Year 20
Expiration Date, or if such day is not a Business Day, on the immediately
preceding Business Day, actually receive free and clear net proceeds of a
Successor Note financed in cash or other immediately available funds and in an
amount equal to the sum of the then current Property Account, then Lessee will
be deemed to have irrevocably and unconditionally elected, and hereby does
irrevocably and unconditionally elect, without further action, to make an
irrevocable and unconditional Year 20 Rejectable Offer for the Minimum Year 20
Price.
(vi) If Lessee shall have made or shall be deemed to have made a
Year 20 Rejectable Offer, Lessor will have until the date which is sixty (60)
days before the Year 20 Expiration Date to accept or reject the Year 20
Rejectable Offer; provided, however, that if Lessor does not accept or reject
the Year 20 Rejectable Offer at least sixty (60) days before the Year 20
Expiration Date, Lessor will irrevocably and unconditionally be deemed to have
accepted such offer, without further action. If Lessor accepts or is deemed to
accept the Year 20 Rejectable Offer, then on the Year 20 Expiration Date, or if
such day is not a Business Day, on the immediately preceding Business Day,
Lessee will purchase the Leased Property for a purchase price equal to the
greater of the Minimum Year 20 Price or the purchase price set forth in the Year
20 Rejectable Offer in cash, plus all Basic Rent, Additional Rent and any other
sums then due and payable hereunder by Lessee for the period through the date of
such purchase, in accordance with Article 15. Upon payment of such purchase
price and all such sums by the Lessee, this Lease shall terminate and Lessor, at
the expense of Lessee, shall convey the Leased Property to Lessee or its
designee in accordance with Article 15.
24. Notices. All communications herein provided for or made pursuant
hereto shall be in writing and shall be sent by (i) registered or certified
mail, return receipt requested, and the giving of such communication shall be
deemed complete on the third Business Day after the same is deposited in a
United States Post Office with postage charges prepaid, (ii) reputable overnight
delivery service with acknowledgment receipt returned, and the giving of such
communication shall be deemed complete on the immediately succeeding Business
Day after the
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Pennsylvania Lease Agreement
same is deposited with such delivery service, (iii) legible fax with original to
follow in due course (failure to send such original shall not affect the
validity of such fax notice), and the giving of such communication shall be
complete when such fax is received, or (iv) hand delivery:
(a) if to Lessor, at the address set forth in Item 8 of Schedule B.
(b) if to Lessee, at the address set forth in Item 9 of Schedule ▇.
▇▇▇▇▇▇ shall give notice to Lessee of the name and address of Lessor's
Mortgagee, and Lessee shall deliver (in the manner described above) to such
Lessor's Mortgagee at such address a copy of any notice given by Lessee to
Lessor. No notice by Lessee to Lessor pursuant to the provisions of this Lease
shall be deemed effective unless and until such notice is also so delivered to
such Lessor's Mortgagee; and no notice by Lessor to Lessee pursuant to the
provisions of this Lease shall be deemed effective unless and until such notice
is joined in or consented to in writing by Lessor's Mortgagee. Either party, and
Lessor's Mortgagee, may change the address where notices are to be sent by
giving the other party (or parties) and Lessor's Mortgagee ten (10) days' prior
written notice of such change.
25. Estoppel Certificates. Each party hereto agrees that at any time and
from time to time during the term of this Lease, it will promptly, but in no
event later than ten (10) days after request by the other party hereto, execute,
acknowledge and deliver to such other party (and, on request, to any current or
prospective mortgagee or prospective purchaser) a certificate stating, to the
best of such party's knowledge, (a) that this Lease is unmodified and in force
and effect (or if there have been modifications, that this Lease is in force and
effect as modified, and setting forth any modifications); (b) the date to which
Basic Rent, Additional Rent and other sums payable hereunder have been paid; (c)
whether or not there is an existing default by Lessee in the payment of Basic
Rent, Additional Rent or any other sum required to be paid hereunder, and
whether or not there is any other existing default by Lessee with respect to
which a notice of default has been served or of which the signer has Actual
Knowledge, and, if there is any such default, specifying the nature and extent
thereof; (d) whether or not there are any setoffs, defenses or counterclaims
against enforcement of the obligations to be performed hereunder existing in
favor of the party executing such certificate, and if so, the basis for such
claim; (e) stating that Lessee is in possession of the Leased Property or
setting forth the parties in possession and identifying the instruments pursuant
to which they took possession; and (f) stating such other information with
respect to the Leased Property and/or this Lease as may be reasonably requested.
Without limiting the foregoing, Lessee will execute an estoppel certificate in
the form of Exhibit G hereof.
26. No Merger. Lessee agrees that there shall be no merger of this Lease
or of any sublease under this Lease or of any leasehold or subleasehold estate
hereby or thereby created with the fee or any other estate or ownership interest
in the Leased Property or any part thereof by reason of the fact that the same
entity may acquire or own or hold, directly or indirectly, (a) this Lease or any
sublease or any leasehold or subleasehold estate created hereby or thereby or
any interest in this Lease or any such sublease or in any such leasehold or
subleasehold estate and (b) the fee estate or other estate or ownership interest
in the Leased Property or any part thereof.
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Pennsylvania Lease Agreement
27. Surrender.
(a) Upon the expiration or earlier termination of the Term of this Lease,
Lessee shall peaceably leave and surrender the Leased Property to Lessor in the
same condition in which the Leased Property was originally received from Lessor
on the Commencement Date, except as repaired, rebuilt, Restored, altered or
added to as required by or permitted by any provision of this Lease (ordinary
wear and tear and the consequences of any Destruction resulting in the
termination of this Lease pursuant to paragraph (c) of Article 12 hereof
excepted). Lessee shall remove from the Leased Property on or prior to such
expiration or earlier termination all property situated thereon which is not the
property of Lessor, and shall repair any damage caused by such removal. Property
not so removed shall become the property of Lessor, and Lessor may cause such
property to be removed from the Leased Property and disposed of, and Lessee
shall pay the cost of any such removal and disposition and of repairing any
damage caused by such removal.
(b) Except for surrender upon the expiration or earlier termination of the
Term hereof, no surrender to Lessor of this Lease or of the Leased Property
shall be valid or effective unless agreed to and accepted in writing by Lessor.
28. Separability. Each provision contained in this Lease shall be separate
and independent and the breach of any such provision by Lessor shall not
discharge or relieve Lessee from its obligation to perform each obligation of
this Lease to be performed by Lessee. If any provision of this Lease or the
application thereof to any Person or circumstance shall to any extent be invalid
and unenforceable, the remainder of this Lease, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision of this
Lease shall be valid and enforceable to the extent permitted by law.
29. Signs; Showing. During the three-month period preceding the date on
which the then current Term of this Lease shall expire, Lessor may (a) place
signs in reasonable locations on the grounds in front of the Leased Property
advertising that the same will be available for rent or purchase, and (b) upon
not less than four (4) hours notice to Lessee, show the Leased Property to
prospective lessees or purchasers during normal business hours as Lessor may
elect.
30. Waiver of Trial by Jury. Lessor and Lessee hereby waive trial by jury
in any litigation brought by either against the other on any matter arising out
of or in connected with this Lease or the Leased Property.
31. Recording. Lessor and Lessee will execute, acknowledge, deliver and
cause to be recorded or filed or, at Lessee's expense, registered and
re-recorded, refiled or re-registered in the manner and place required by any
present or future law, a memorandum thereof, and all other instruments,
including, without limitation, financing statements, continuation statements,
releases and instruments of similar character, which shall be reasonably
requested by Lessor or Lessee as being necessary or appropriate in order to
protect their respective interests in the Leased Property.
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Pennsylvania Lease Agreement
32. Miscellaneous; Limited Recourse. This Lease shall be binding upon and
shall inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns permitted hereunder. In addition, Lessor's
Mortgagee is an intended third party beneficiary of those provisions of this
Lease which expressly reference Lessor's Mortgagee. Nothing herein shall
restrict the right of Lessor to convey the Leased Property or interests therein
or interests in Lessor without the consent of Lessee. Recourse for the breach of
any obligation of Lessor hereunder shall be limited to Lessor's interest in the
Leased Property, and in no event shall Lessee have recourse to Lessor
personally, or its members, managers, its trustees or beneficiaries or to any
other assets of Lessor. Concurrently with the execution and delivery of this
Lease, Lessee shall cause to be delivered to Lessor and Lessor's Mortgagee an
opinion of counsel to Lessee, satisfactory in form and substance to Lessor and
Lessor's Mortgagee, as to the due authorization, execution and delivery of this
Lease by Lessee and the validity, binding effect and enforceability as to Lessee
of this Lease and such other matters relating to Lessee and this Lease as Lessor
or Lessor's Mortgagee may reasonably request. To the extent Lessor or Lessor's
Mortgagee, in its reasonable opinion, should at any time during the Term of this
Lease require any additional documents to be executed by Lessee to further
document or affirm compliance with Lessee's agreements hereunder or under any
related documents, the Lessee shall immediately comply with said request and
execute such documents. Lessee shall, as Additional Rent, pay any reasonable
in-house or outside counsel attorney's fees and expenses incurred by Lessor's
Mortgagee or Lessor (a) in connection with said matters (b) in connection with
similar requests from Lessor's Mortgagee to Lessor with respect to the Note, the
Mortgage or any Loan Documents and (c) in connection with any request by Lessee
for modifications, waivers or other actions hereunder (without implying any
obligation on Lessor's part to consent to the same). Furthermore, Lessee shall,
as Additional Rent, pay any costs incurred by Lessor's Mortgagee or Lessor in
connection with (a) conducting lien searches of Lessor or Lessee and their
respective assets and properties on an annual basis and at such other times as
Lessor's Mortgagee in its sole discretion may determine to be necessary and (b)
costs incurred by Lessor or Lessor's Mortgagee in making, executing and
delivering or causing to be made, executed and delivered and where appropriate,
causing to be recorded or filed or rerecorded and refiled any and all documents,
certificates and other documents as Lessor's Mortgagee may reasonably consider
necessary or desirable in order to effectuate, complete or perfect and to
continue and preserve the obligations of Lessor under the Note and the Loan
Documents and the Liens created thereby. This Lease may not be amended, changed,
waived, discharged or terminated orally, but only by an instrument specifically
evidencing an intent to amend signed by the party against whom enforcement
thereof is sought. No failure, delay, forbearance or indulgence on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, or as an acquiescence in any breach, nor shall any single or
partial exercise of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
This Lease and the rights and obligations in respect hereof shall be governed
by, and construed and interpreted in accordance with, the laws of the state
within which the Leased Property is located. All headings are for reference only
and shall not be considered as part of this Lease. This Lease may be executed in
any number of counterparts, each of which shall be an original, and such
counterparts together shall constitute but one and the same instrument. TIME IS
OF THE ESSENCE as to the time periods set forth pursuant to each provision of
this Lease. Under no circumstance shall Lessor be deemed to have acted
negligently, grossly negligently, wrongfully, or willfully merely by Lessor's
ownership of the
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Pennsylvania Lease Agreement
Leased Property, and in no event shall any occurrence relating to the Leased
Property, whether negligent or willful, be imputed to Lessor by reason of
Lessor's interest in the Leased Property, it being understood that all
obligations with respect to the Leased Property are the responsibility of Lessee
under this Lease. Further, under no circumstance shall Lessor, Lessor's
Mortgagee or any other Indemnified Party be deemed to have acted negligently,
grossly negligently, wrongfully or willfully merely by undertaking an action at
the request or direction of Lessee or anyone claiming by through or under Lessee
or in failing to take any action necessary to comply with Legal Requirements or
other obligations to the extent such compliance is the responsibility of Lessee
hereunder, and, except as set forth expressly in this Lease, Lessee agrees that
it, alone, is responsible for complying with all Legal Requirements and that
Lessor is under no duty or obligation to satisfy such Legal Requirements and
that a breach thereof shall not, under any circumstances, result in liability of
any Indemnified Party. In order to have acted negligently, wrongfully, grossly
negligently or willfully, a court of competent jurisdiction must have determined
that Lessor committed an affirmative act. Whenever Lessor is allowed or required
to give its consent or approval of any matter under this Lease or to deliver any
estoppel or other instrument, Lessee's sole remedy for Lessor's failure to give
such consent or approval or instrument in accordance with the applicable
provision of this Lease shall be to compel such approval or delivery. In no
event and under no circumstance may Lessee recover any monetary damages for such
failure or terminate or otherwise modify this Lease. Lessor and Lessee agree
that this Lease is a true lease and does not represent a financing arrangement.
Each party shall reflect the transaction represented hereby in all applicable
books, records and reports (including tax filings and financial reports) in a
manner consistent with "true lease" treatment rather than "financing" treatment.
Promptly upon becoming aware thereof, Lessee shall give Lessor and Lessor's
Mortgagee notice with respect to any material adverse change in the legality,
validity or enforceability of this Lease.
33. Lessee Representations. Lessee represents and warrants to Lessor that
the following are true and correct as of the date hereof:
(a) Due Organization. Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is
qualified to do business in, and in good standing under the laws of all
jurisdictions where its business requires qualification. Guarantor has the
necessary corporate power and authority to conduct its business as now conducted
and to perform its obligations under the Guaranty. Lessee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Pennsylvania and qualified to do business in, and in good standing under the
laws of, the state in which the Leased Property is located and all other
jurisdictions where its business requires qualification. Lessee has the
necessary corporate power and authority to conduct its business as now conducted
and to sell and lease the Leased Property.
(b) Due Authorization; No Conflict. This Lease, the SNDA, the Guaranty and
all other documents signed or to be signed by Lessee or Guarantor in relation
hereto have been duly authorized by all necessary corporate and/or limited
liability action on the part of Lessee and Guarantor and have been duly executed
and delivered by Lessee and Guarantor, and the execution, delivery and
performance thereof by Lessee and Guarantor will not (i) require any approval or
consent of the members and/or stockholders of Lessee or Guarantor or any
approval or consent of any trustee or holder of any indebtedness or obligation
of Lessee or Guarantor or
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Pennsylvania Lease Agreement
any approval or consent of any Governmental Authority, other than such consents
and approvals as have been obtained, (ii) contravene any Legal Requirements
binding on Lessee or Guarantor or (iii) contravene or result in any breach of or
constitute any default under Lessee's and Guarantor's charter or by-laws or
other organizational documents, or any indenture, mortgage, loan agreement,
contract, partnership or joint venture agreement, lease or other agreement or
instrument to which Lessee or Guarantor is a party or by which Lessee or
Guarantor is bound, or result in the creation of any lien upon any of the
property of Lessee or Guarantor, to the extent that such breach, default or
creation of lien would have a material adverse effect on the ability of Lessee
to sell the Leased Property and/or to perform its obligations under this Lease
or on the ability of Guarantor to perform its obligations under the Guaranty, or
be a material breach or default, or result in a lien arising, under a material
indenture, mortgage, loan agreement, lease or other agreement.
(c) Enforceability. This Lease, the SNDA, the Guaranty and all other
documents signed or to be signed by Lessee or Guarantor related hereto, are each
a legal, valid and binding obligation of Lessee and Guarantor, enforceable
against Lessee and Guarantor in accordance with the terms thereof, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors,
mortgagees' or lessors' rights in general.
(d) Investment Company; Public Utility Holding Company. Neither Lessee nor
Guarantor is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Neither Lessee nor Guarantor is a "holding company" or a "subsidiary company" of
a "holding company" or an "affiliate" of a "holding company" or a "public
utility" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or a "public utility" within the meaning of the Federal Power Act,
as amended.
(e) Bankruptcy. No bankruptcy, reorganization, arrangement or insolvency
proceedings are pending, threatened or contemplated by Lessee or Guarantor.
Lessee has not made a general assignment for the benefit of creditors and Lessee
is able to pay its debts as they become due. Guarantor has not made a general
assignment for the benefit of creditors and Guarantor is able to pay its debts
as they become due.
(f) Rents. Lessee has not paid Basic Rent to Lessor (or any of the
Indemnified Parties) more than 30 days in advance, and no Basic Rent payable
hereunder has been waived, released, or otherwise discharged or compromised by
Lessor (or any of the Indemnified Parties). Lessee is not entitled to any period
of free rent or any offset, credits or rights of abatement against Lessee's
obligation to pay Basic Rent hereunder.
(g) Liens. Lessee has no right to obtain a lien upon the Leased Property
superior to the lien of Lessor's Mortgage on the Leased Property.
(h) Criminal Proceedings. Neither Lessee nor Guarantor is the subject of a
pending criminal proceedings.
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(i) Tax Filings. All tax returns and reports of Lessee and Guarantor
required by law to be filed have been duly filed, and all Taxes of any
Governmental Authority upon Lessee and Guarantor and upon the assets or income
of Lessee or Guarantor (other than the Leased Property), which are due and
payable and are not being contested by Lessee, have been paid or accrued. All
Taxes and Impositions of any Governmental Authority upon the Leased Property,
which are due and payable, have been paid. All Tax contests are being performed
consistent with the terms of the Lease.
(j) Condemnation. To Lessee's and Guarantor's Actual Knowledge, no Taking
has been commenced or has been announced as being contemplated with respect to
all or any portion of the Leased Property or for the relocation of roadways
providing access to the Leased Property.
(k) Utilities and Public Access. To Lessee's and Guarantor's Actual
Knowledge, the Leased Property has adequate rights of access to dedicated public
ways (and the Leased Property makes no materials use of any means of access or
egress that is not pursuant to such dedicated public ways or recorded,
irrevocable rights-of-way or easements) and is served by adequate water, sewer,
sanitary sewer and storm drain facilities. To Lessee's and Guarantor's Actual
Knowledge, all public utilities and facilities necessary for the full use and
enjoyment of the Leased Property are located in the public right-of-way or in or
through a recorded irrevocable easement in favor of the Leased Property. To
Lessee's and Guarantor's Actual Knowledge, all such utilities and facilities are
connected so as to serve the Leased Property without passing over other
property, except to the extent that such utilities are accessible to the Leased
Property by virtue of a recorded, irrevocable easement or similar agreement or
right. To Lessee's and Guarantor's Actual Knowledge, all roads necessary for the
full utilization of the Leased Property for its current purpose have been
completed and such roads have been dedicated to public use and accepted by all
Governmental Authorities.
(l) Condition, Compliance. To the Lessee's and Guarantor's Actual
Knowledge, (i) the Improvements are structurally sound, in good condition, free
of any material damage or waste that would affect the value of the Leased
Property and are free of structural defects and all building systems are in good
working order and condition; (ii) the Leased Property is a separate tax lot for
purposes of ad valorem taxation, zoning and similar purposes and does not
include any property not a part of the Leased Property; (iii) the Leased
Property is lawfully occupied by Lessee under the Lease; (iv) the Leased
Property is in compliance with all Legal Requirements and all covenants and
restrictions affecting the Leased Property, occupancy, use or operation of such
Leased Property, and the use of the Leased Property is not a pre-existing,
non-conforming use; and (v) the conduct by Lessee of its business as presently
conducted does not violate any provision of any Legal Requirements and Lessee
has obtained all permits, licenses, consents and approvals of all Governmental
Authorities or other third parties, including all consents and approvals, if any
under Legal Requirements described to protect the environment, which are
required to conduct such business, and such permits, licenses, consents and
approvals and are not subject to review upon appeal or under any pending or
threatened attack by direct proceedings. No notice of the violation of any Legal
Requirements have been received by Lessee or Guarantor. To Lessee's and
Guarantor's Actual Knowledge, all Permits required by Legal Requirements or by
insurance standards or otherwise to be made or issued with respect to the lawful
construction, use and occupancy of the Leased Property, have been made or have
been obtained from the appropriate Governmental Authorities and are valid and in
full force and
43
effect. To Lessee's and Guarantor's Actual Knowledge, the Leased Property and
all Improvements thereon do not require any rights over, or restrictions
against, other property in order to comply with any Legal Requirements.
(m) Subleases. There are no subleases affecting all or any portion of the
Leased Property in existence on the date hereof, and no person has any
possessory interest in, or right to occupy, the Leased Property except Lessee
pursuant to this Lease.
(n) Intentionally Omitted.
(o) Pending Actions. There are no actions, suits or proceedings in or by
or before any Governmental Authority now pending or, to Lessee's or Guarantor's
Actual Knowledge, threatened against or affecting Lessee, Guarantor or the
Leased Property which, if adversely decided, would prevent the consummation of
the transaction contemplated by the Lease, impair Lessee's ability to perform
its obligations under this Lease, impair Guarantor's ability to perform its
obligations under the Guaranty, or materially impair the Leased Property.
Without limiting the generality of the foregoing, to Lessee's and Guarantor's
Actual Knowledge, no judgment, lien, suit, action or legal, administrative,
arbitration or other proceeding, or any change in the zoning or building
ordinances affecting the Leased Property is pending against Lessee, Guarantor or
the Leased Property which could result in a material adverse change in the
Leased Property or the financial condition of Lessee or Guarantor, in a judgment
or lien against Lessee or Guarantor or the Leased Property, or in a rezoning of
the Leased Property (or any part thereof).
(p) Parties in Possession. There are no parties in possession of the
Leased Property, except Lessee.
(q) Sewer Systems. The sanitary sewer or septic system on the Leased
Property is in compliance with all applicable Legal Requirements.
(r) Driveways. To Lessee's and Guarantor's Actual Knowledge, all curb
cuts, driveways and traffic signals shown on the survey delivered to Lessor
before the execution and delivery of this Lease and material to the use and
value of the Leased Property for their intended purposes are existing and have
been fully approved by the appropriate Governmental Authority.
(s) Casualty Damage. The Leased Property is free from unrepaired damage
caused by Casualty.
(t) Sales and Payroll Taxes. To Lessee's and Guarantor's Actual Knowledge,
the Leased Property is free from any past due obligations for sales and payroll
taxes.
(u) Title. As of the date hereof, Lessor has good and marketable title in
fee simple to the Leased Property. Lessee will, on behalf of Lessor, forever
warrant and defend Lessor's title to the Leased Property against any and all
claims whatsoever and will forever warrant and defend the validity and priority
of the lien created under the Mortgage against claims of all persons and parties
whatsoever, subject to the Permitted Encumbrances and any liens created by
Lessor or its successors or assigns. The foregoing warranty of title shall
survive the foreclosure of the Mortgage and shall inure to the benefit of and be
enforceable by the Lessor's Mortgagee if
44
Pennsylvania Lease Agreement
the Lessor's Mortgagee acquires title to the Leased Property. Under no
circumstances shall any third party (other than Lessor's Mortgagee), including
any title insurer, be a beneficiary of the representation and warranty made in
this paragraph.
(v) Labor Controversies. There are no labor controversies pending, or to
the best knowledge of Lessee, threatened against Lessee, which, if adversely
determined, would have a material adverse effect on Lessor, Lessee, Lessor's
Mortgagee or the legality, validity or enforceability of this Lease or any
document executed in connection herewith.
34. No Lessor Representations or Warranties. Lessor has not made an
inspection of the Leased Property and makes no representation or warranty,
express or implied, with respect to the Leased Property or the location, use,
description, design, merchantability, fitness for use for a particular purpose,
condition or durability thereof, or as to quality of the material or workmanship
therein or environmental condition thereof. Lessor shall not have any
responsibility or liability to Lessee or any party claiming by, through or under
Lessee with respect to any defect or deficiency of any nature in the Leased
Property or any portion thereof, whether patent or latent and Lessor shall not
have any responsibility or liability for any direct or indirect damage to
persons or property resulting therefrom or for Lessee's loss of use of the
Leased Property or any portion thereof or any interruption in Lessee's business
caused by Lessee's inability to use the Leased Property or any portion thereof
for any reason whatsoever. The provisions of this Article have been negotiated
and are intended to be a complete exclusion and negation by Lessor of, and
Lessor does hereby disclaim and lessee does hereby waive, any and all warranties
by Lessor, express or implied, with respect to the Leased Property or any
portion thereof, whether arising pursuant to the uniform commercial code or any
other legal requirement now or hereafter in effect or otherwise.
35. Intentionally Omitted.
36. Additional Provisions Relating to Leased Property. The additional
provisions set forth in Item 20 of Schedule B are hereby incorporated in this
Lease and made a part hereof.
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Pennsylvania Lease Agreement
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be duly executed
and delivered as of the date first written above.
Lessor:
Signed, Sealed and Delivered CRICIPECPA LP, a Delaware limited
in the Presence of the following partnership
Witness(es):
By: CRICIPEC LLC, a Delaware limited
liability company, its General Partner
By: CRICIPEC Holdings LLC, a
Delaware limited liability
company, its Member
By: CRIC Capital, LLC, a Delaware
limited liability company,
its Member
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
Pennsylvania Lease Agreement
Lessee:
Signed, Sealed and Delivered
in the Presence of the following INTERNATIONAL PLASTICS AND
Witness(es): EQUIPMENT CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
Title: President
Pennsylvania Lease Agreement
APPENDIX I
DEFINITIONS
Actual Knowledge by the Lessee or the Guarantor with respect to any matter
means the present actual knowledge of such matter by any Specified Officer after
reasonable investigation and inquiry. Actual Knowledge shall be presumed
conclusively as to the content of any notice to Lessee made in accordance with
the provisions of this Lease.
Additional Rent is defined in paragraph (b) of Article 3.
Affiliate of any Person means, at any time, any other Person or group
acting in concert with respect of the Person in question that directly or
indirectly controls, is controlled by or is under common control with, such
Person. For purposes of this definition, the term "control" (including the
correlative meanings of the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
Alabama Lease is defined in paragraph (c) of Article 12.
Alternate Rate Notice is defined in Item 7(g) of Schedule B.
Applicable Rate means (i) the LIBOR Interest Rate for any period when this
Lease is a LIBOR Lease or (ii) the Substitute Rate plus the Substitute Spread
for any period when the Lease is a Substitute Rate Lease.
Asset Sale Deficiency means the proceeds of any sale of Guarantor's assets
to the extent that such proceeds do not result in an Increased Tangible Net
Worth of the Guarantor.
B Rent is defined in Item 7(g) of Schedule B.
Bankruptcy Code means Title 11 of the United States Code or any other
Federal or state bankruptcy, insolvency or similar law, now or hereafter in
effect in the United States.
Basic Rent is defined in paragraph (a) of Article 3.
Basic Term is defined in paragraph (a) of Article 2.
Basic Term Expiration Date is defined in paragraph (a) of Article 2.
Business Day means any day except Saturdays, Sundays or a day on which
commercial banks located in the State of New York are authorized or required to
be closed.
Calculation Period means for each calendar month the period starting on
the first day of such month and ending on the last day of such month.
Casualty is defined in paragraph (a) of Article 12.
Pennsylvania Lease Agreement
Certificate Holder means, as of any particular date, any holder of
interests that evidence ownership interests in the assets of a trust that is
holding a loan secured by a Mortgage or that is holding participation interests
in a loan secured by a Mortgage.
Closing means the closing for the acquisition of the Leased Property by
Lessor and the leasing of the Leased Property by Lessor to Lessee.
CMBS is defined in the definition of Lessor's Mortgagee.
Code is defined in Article 22.
Commencement Date means the date specified in Item 4 of Schedule B.
Depositary is defined in paragraph (b) of Article 12.
Destruction is defined in paragraph (a) of Article 12.
Discount Rate means 3% per annum.
Environmental Laws means the Resource Conservation and Recovery Act (42
U.S.C. ss.6901 et seq.), as amended by the Hazardous and Solid Waste Amendments
of 1984, the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. ss.9601 et seq.), as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Hazardous Materials Transportation Act (49
U.S.C. ss.1801 et seq.), the Toxic Substances Control Act (15 U.S.C. ss.2601 et
seq.), the Clean Air Act (42 U.S.C. ss.7401 et seq.), the Clean Water Act (33
U.S.C. ss.1251 et seq.) the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. ss.135 et seq.), the Occupational Safety and Health Act (29 U.S.C.
ss.651 et seq.) and all applicable federal, state and local environmental laws,
including obligations under the common law, ordinances, rules, regulations and
publications, as any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, and any other Legal Requirements, now or
hereafter existing relating to regulation or control of Hazardous Substances or
environmental protection, the impact of environmental quality on human health
and environmental safety.
Environmental Site Assessment is defined in Schedule B.
ERISA is defined in Article 22.
Event of Default is defined in paragraph (a) of Article 20.
Executive Officer means the President, Executive Vice President,
Treasurer, Financial Vice President, Director of Real Estate or if such office
does not exist, its closest equivalent.
15 Year Notice is defined in paragraph (c) of Article 23.
15 Year Notice Date is defined in paragraph (c) of Article 23.
Final Rent Payment is defined in Schedule C.
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Pennsylvania Lease Agreement
First Renewal Term is defined in paragraph (b) of Article 2.
First Renewal Term Expiration Date is defined in paragraph (d) of Article
23.
5 Year A Rent is defined in Item 7(f) of Schedule B.
5 Year Basic Rent Sum is defined in Item 7(a) of Schedule B.
5 Year Notice is defined in paragraph (a) of Article 23.
5 Year Notice Date is defined in paragraph (a) of Article 23.
Governmental Authority means any federal, state, county, municipal or
other governmental or regulatory, arbitrator, board, body, commission, court,
instrumentality, or other administrative, judicial, quasi-governmental or
quasi-judicial tribunal, authority or agency of competent authority (or private
Person in lieu thereof).
Guarantor means IPEC Holdings, Inc., a Nevada corporation, and any other
guarantor of Lessee's obligations under the Lease.
Guaranty means the Guaranty of even date herewith from Guarantor to
Lessor.
Hazardous Substances means (i) those substances (whether solid, liquid or
gas), included within the definitions of or identified as "hazardous
substances", "hazardous materials", or "toxic substances" in or pursuant to,
without limitation, the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (42 U.S.C. ss.9601 et seq.) (CERCLA), as amended by
Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat.
1613) (▇▇▇▇), the Resource Conservation and Recovery Act of 1976 (42 U.S.C., ss.
6901 et seq.) (RCRA), the Occupational Safety and Health Act of 1970 (29 U.S.C.
ss. 651 et seq.) (OSHA), and the Hazardous Materials Transportation Act, 49
U.S.C. ss. 1801 et seq., and in the regulations promulgated pursuant to said
laws, all as amended; (ii) those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by
the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) any material, waste
substance, pollutant or contamination which is or contains (A) petroleum, its
derivatives, by-products and other hydrocarbons, including crude oil or any
fraction thereof, natural gas, or synthetic gas usable for fuel or any mixture
thereof, (B) asbestos, and/or asbestos-containing materials in any form that is
or could become friable, (C) polychlorinated biphenyls, (D) designated as
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
ss. 1251 et seq., (33 U.S.C. ss. 1321) or listed pursuant to Section 307 of the
Clean Water Act (33 U.S.C. ss. 1317); (E) flammable explosives; (F) radioactive
materials; and (iv) such other substances, materials, wastes, pollutants and
contaminants which are or become regulated as hazardous, toxic or "special
wastes" under applicable local, state or federal law, or the United States
government, or which are classified as hazardous, toxic or as "special wastes"
under any Legal Requirements.
Improvements means all buildings, facilities, structures, additions,
extensions and other improvements now or hereafter existing on the Land and
fixtures appurtenant thereto and any and all alteration and additions thereto.
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Pennsylvania Lease Agreement
Indemnified Liability is defined in paragraph (a) of Article 8.
Indemnified Parties is defined in Article 8.
Indenture Trustee means the trustee under the Mortgage, if any, from time
to time.
Installment Payment Dates is defined in paragraph (a) of Article 3.
Institutional Investor means Sky Bank, an Ohio banking institution or any
other bank, insurance company, a bank affiliate or wholly owned subsidiary of
any such bank, or any other financial or lending institution organized under the
laws of the United States or any state thereof or Canada or any province thereof
with a net worth of at least $25,000,000, including, without limitation, a real
estate investment trust and/or trust, corporation or other Person engaged in
so-called conduit lending, or a public or private pension plan or
institutionally managed fund having gross assets of at least $100,000,000.
Insurance Requirements is defined in Article 13.
Land is defined in Article 1.
▇▇ ▇▇▇▇▇▇ shall have the meaning ascribed thereto in the Alabama Lease.
Leased Property is defined in Article 1.
Lease Year means (i) initially, the period commencing on (and including)
the Commencement Date and including any partial month between the Commencement
Date and first day of the following month if the Commencement Date is not the
first day of a month, and ending at midnight of the last day of the month that
is the twelfth (12th) consecutive calendar month after the first full month of
the Basic Term; (ii) thereafter, a period of twelve (12) consecutive calendar
months during the Basic Term or any Renewal Term, beginning on the annual
anniversary of the first day of the first full month of the Basic Term. The last
Lease Year may be less than twelve (12) months if the Lease is terminated early
pursuant to its terms and provisions.
Legal Requirements means (i) all present and future applicable laws,
statutes, treaties, rules, orders, ordinances, codes, regulations, requirements,
Permits, and interpretations by, and applicable judgments, decrees, injunctions,
writs, orders and like action of any Governmental Authority including without
limitation, those pertaining to health, safety or the environment and the
Americans with Disabilities Act), whether or not such are within the present
contemplation of Lessor or Lessee and (ii) any reciprocal easement agreement,
development agreement, deed restriction, or similar agreement, relating to the
Leased Property, or the Improvements, or the facilities or equipment thereon or
therein, or the streets, sidewalks, vaults, vault spaces, curbs and gutters
adjoining the Leased Property, or the appurtenances to the Leased Property, or
the franchises and privileges connected therewith.
Lessee's Loss is defined in paragraph (a) of Article 12.
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Pennsylvania Lease Agreement
Lessor's Mortgagee means any lender holding a lien (whether by mortgage,
deed of trust or otherwise) granted by Lessor on the Leased Property. The term
"Lessor's Mortgagee" shall include the servicer and/or trustee with respect to
the pool of collateral for any commercial mortgage-backed securities or mortgage
pass-through certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (collectively, CMBSs)
into which pool Lessor's Mortgage or other lien instrument covering the Leased
Property or interest in Lessor's Mortgagee or other lien instrument has been
sold, assigned, transferred or pledged and also the issuer of such CMBSs. Any
references in this Lease to Lessor's Mortgagee at a time, if any, when there is
no Lessor's Mortgagee shall be construed to mean "Lessor's Mortgagee, if any."
LIBOR means, for each Calculation Period, the London Inter-Bank Offered
Rate (expressed as a percentage per annum and rounded upward, if necessary, to
the next nearest 1/1000 of 1%) for U.S. Dollar-denominated deposits, for a
three-month period, as reported by Telerate through electronic transmission (or
the successor thereto) as of 11:00 a.m., London time, on the related Rate
Determination Date. If such rate is not reported by Telerate as of 11:00 a.m.,
London time, on such Rate Determination Date, LIBOR shall be the arithmetic mean
of the offered rates (expressed as a percentage per annum) for U.S.
Dollar-denominated deposits for a three-month period that appear on the Reuters
Screen Libor Page as of 11:00 a.m., London time, on such Rate Determination
Date, if at least two such offered rates so appear. If fewer than two such
offered rates appear on the Reuters Screen Libor Page as of 11:00 a.m., London
time, on such Rate Determination Date, ▇▇ ▇▇▇▇▇▇ or Lessor shall request the
principal London Office of any four major reference banks in the London
interbank market selected by ▇▇ ▇▇▇▇▇▇ or Lessor to provide such bank's offered
quotation (expressed as a percentage per annum) to prime banks in the London
interbank market for U.S. Dollar-denominated deposits for a three-month period
as of 11:00 a.m., London time, on such Rate Determination Date for the then
outstanding principal amount of the Loan. If at least two such offered
quotations are so provided, LIBOR shall be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, ▇▇ ▇▇▇▇▇▇ or
Lessor shall request any three major banks in New York City selected by ▇▇
▇▇▇▇▇▇ or Lessor to provide such bank's rate (expressed as a percentage per
annum) for loans in U.S. Dollars to leading European banks for a three-month
period as of approximately 11:00 a.m., New York City time on the applicable Rate
Determination Date for the then outstanding principal amount of the Loan. If at
least two such rates are so provided, LIBOR shall be the arithmetic mean of such
rates.
LIBOR Interest Rate means for each Calculation Period LIBOR plus the
Spread. Until the first Rate Determination Effective Date, the LIBOR Interest
Rate shall mean 2.92% per annum.
LIBOR Lease means this Lease at any time in which the Applicable Rate is
not calculated on the basis of the Substitute Rate and the Substitute Spread in
accordance with the provisions of Item 7(g) of Schedule ▇.
▇▇▇▇ means any mortgage, deed of trust, charge, pledge, lien, option
security interest or other encumbrance or security arrangement of any nature
whatsoever or any other preferential arrangement that has the practical effect
of creating a security interest, including, but not limited to, any conditional
sale or title retention agreement, and any assignment, deposit, arrangement or
5
Pennsylvania Lease Agreement
lease intended as, or having the effect of, security, but excluding (i)
Permitted Encumbrances, (ii) the Mortgage or any other Loan Document or (iii)
any other lien or interest created by Lessor (other than at the request of or
with the consent of Lessee).
Loan Documents shall mean the Notes, the Mortgage and all documents
related thereto.
London Business Day means any day other than a Saturday, Sunday or any
other day on which commercial banks in London, England or New York, New York are
not open for business.
Market Rent is defined in Schedule H.
Minimum Credit Rating means a long term senior unsecured debt rating of
"BBB" or better from S&P and "Baa2" or better from Moody's.
Minimum Year 15 Price is defined in paragraph (c) of Article 23.
Minimum Year 20 Price is defined in paragraph (d) of Article 23.
Minor Addition is defined in paragraph (e) of Article 10.
Moody's means ▇▇▇▇▇'▇ Investor Services, Inc., and any successor thereto.
Mortgage is defined in paragraph (b) of Article 7.
Net Award shall mean the entire award, compensation, insurance proceeds or
other payment, if any, on account of any Destruction, less any expenses
reasonably incurred by Lessor or Lessor's Mortgagee in obtaining such award
compensation, insurance proceeds or other payment and any cost and expense of
either in connection with the administration of the distribution of the same and
not already paid (or reimbursed to Lessor or Lessor's Mortgage), plus any
investment income earned with respect to the foregoing amounts.
Note means the Note (or Notes) of Lessor secured by any "Mortgage" on the
Leased Property from time to time.
Officer's Certificate means a certificate executed by an Executive Officer
of Lessee who has made or caused to be made such examination or investigation as
is reasonably necessary to enable such Executive Officer to express a good faith
informed opinion about the subject matter of such Officer's Certificate.
Original Purchase Price is defined in Schedule B.
Outside Restoration Date is defined in paragraph (c) of Article 12.
Overdue Rate is defined in paragraph (b) of Article 3.
Permitted Encumbrances means, with respect to the Leased Property: (a)
rights reserved to or vested in any Governmental Authority to condemn,
appropriate, recapture or designate a purchaser of the Leased Property; (b) the
liens on the Leased Property for Taxes and Impositions and any liens of
mechanics, materialmen and laborers for work or services performed or material
6
Pennsylvania Lease Agreement
furnished in connection with the Leased Property, which are not yet due and
payable, or the amount or validity of which are being contested as permitted by
Article 6 hereof; (c) easements, rights-of-way, servitudes, zoning laws, use
regulations, and other similar reservations, rights and restrictions and other
minor defects and irregularities in the title to the Leased Property existing on
the Commencement Date or granted in accordance with Article 21 hereof; (d) the
lien of any Mortgage and any assignment of this Lease as further security for
the Note or notes secured by such Mortgage; (e) all other matters affecting
title existing on the date of this Lease as set forth in Schedule D.
Permits means all licenses, authorizations, certificates (including
certificates of occupancy), variances, concessions, grants, registrations,
consents, permits and other approvals issued by a Governmental Authority now or
hereafter pertaining to the ownership, management, occupancy, use, operation,
maintenance, alteration or Restoration of the Leased Property.
Person means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, trustee of a
trust, unincorporated organization, Governmental Authority or any other entity.
Plan is defined in Article 22.
Policies are defined in paragraph (a) of Article 13.
Prescribed Laws means , collectively, (a) the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56), (b) Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism, (c) the International Emergency Economic Power
Act, 50 U.S.C. Section 1701 et seq. and (d) other laws relating to money
laundering or terrorism.
Property Account is defined in Schedule C.
Property Subaccount A is defined in Schedule C.
Property Subaccount B is defined in Schedule C.
Qualified Financing is defined in Article 23.
Rate Determination Date means each April 20, July 20, October 20 and
January 20 occurring after the Closing Date and before the Year 20 Expiration
Date; provided, however, if the twentieth (20th) day of the month is not a
London Business Day, then the Rate Determination Date shall be preceding London
Business Day of such month.
Rate Determination Effective Date means each May 1, August 1, November 1,
and February 1, commencing on August 1, 2004.
Rating Agencies mean S&P and Moody's.
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Pennsylvania Lease Agreement
Reinvestment Premium means the amount computed in accordance with Schedule
C.
Release of Hazardous Substances means the release or threatened release of
any Hazardous Substances into or upon any land or water or air, or otherwise
into the environment, including, by means of burying, disposing, discharging,
injecting, emptying, emitting, spilling, leaking, flowing, seeping, leaching,
dumping, pumping, pouring, escaping, placing and the like.
Renewal Term is defined in paragraph (b) of Article 2.
Rent Reset Closing Costs is defined in paragraph (a) of Article 23.
Rent Reset Effective Date means the Year 5 Rent Reset Effective Date, the
Year 10 Rent Reset Effective Date, the Year 15 Rent Reset Effective Date and/or
the Year 20 Rent Reset Effective Date, as the context shall require.
Rent Reset Lease Amendment means the Year 5 Rent Reset Lease Amendment,
the Year 10 Rent Reset Lease Amendment, the Year 15 Rent Reset Lease Amendment
and/or the Year 20 Rent Reset Lease Amendment as the context shall require.
Rent Reset Option means the Year 5 Rent Reset Option, the Year 10 Rent
Reset Option, the Year 15 Rent Reset Option and/or the Year 20 Renewal Option,
as the context shall require.
Restore or Restoration means if the Leased Property suffers a Destruction
by a Casualty or a Taking, to restore, repair, replace, rebuild and/or improve
the Leased Property, as nearly as practicable, to a condition not less than the
condition required to be maintained under this Lease and a fair market value of
not less than the fair market value of the Leased Property as existed
immediately before such Destruction.
Restoration Threshold Amount is defined in paragraph (b) of Article 12.
S&P means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
SNDA is defined in paragraph (b) of Article 7.
Specified Officer means an Executive Officer or if any such officer does
not exist, its closest equivalent.
Spread means 165 basis points.
Substitute Rate is defined in Item 7(g) of Schedule B.
Substitute Rate Lease means the Lease at any time in which the Applicable
Rate is calculated at the Substitute Rate plus the Substitute Spread in
accordance with the provisions of Item 7(g) of Schedule B.
Substitute Spread is defined in Item 7(g) of Schedule B.
8
Pennsylvania Lease Agreement
Successor Note means one or more non-recourse senior secured note or notes
issued by one or more Institutional Investors to finance any sums specified in
this Lease or to refinance the Note or any note or notes issued to refinance any
successor note or notes to the original Note.
Survey means the survey specified in Item 10 of Schedule B.
Taking is defined in paragraph (a) of Article 12.
Tax and Insurance Reserve Fund is defined in paragraph (e) of Article 13.
Tax and Insurance Reserve Fund Payment is defined in paragraph (e) of
Article 13.
Taxes and Impositions is defined in paragraph (a) of Article 6.
10 Year Basic Rent Sum is defined in Item 7(b) of Schedule B.
10 Year Notice is defined in paragraph (b) of Article 23.
10 Year Notice Date is defined in paragraph (b) of Article 23.
Term means the Basic Term, plus, as applicable, the First Renewal Term and
any Renewal Term or Terms.
Termination Payment is defined in Schedule C.
Termination Value means the amount computed in accordance with Schedule C.
Total Capital means the sum of all cash on hand plus all debt of the
Guarantor including, without limitation, all term debt, all lines of credit
including amounts theretofore drawn upon, and amounts available but not
theretofore drawn upon and all other types of debt all as calculated in
accordance with generally accepted accounting principles.
Trade Fixtures is defined in Article 11.
20 Year Notice Date is defined in paragraph (d) of Article 23.
Warranties means all warranties, guaranties and indemnities, express or
implied, and similar rights which Lessor may have against any manufacturer,
engineer, contractor or builder in respect of the Leased Property including, by
way of example, any right and remedy existing under contract or pursuant to the
Uniform Commercial Code.
Year 15 Expiration Date is defined in Item 6 of Schedule B.
Year 15 Purchase Price is defined in paragraph (c) of Article 23.
Year 15 Rejectable Offer is defined in paragraph (c) of Article 23.
Year 15 Rent Reset Effective Date is defined in paragraph (c) of Article
23.
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Pennsylvania Lease Agreement
Year 15 Rent Reset Lease Amendment is defined in paragraph (c) of Article
23.
Year 15 Rent Reset Option is defined in paragraph (c) of Article 23.
Year 5 A Financing is defined in paragraph (a) of Article 23.
Year 5 A Rent Notice is defined in paragraph (a) of Article 23.
Year 5 B Financing is defined in paragraph (a) of Article 23.
Year 5 B Rent Notice is defined in paragraph (a) of Article 23.
Year 5 Expiration Date is defined in Item 6 of Schedule B.
Year 5 Rent Payment is defined in Schedule C.
Year 5 Rent Reset Effective Date is defined in paragraph (a) of Article
23.
Year 5 Rent Reset Lease Amendment is defined in paragraph (a) of Article
23.
Year 5 Rent Reset Option is defined in paragraph (a) of Article 23.
Year 10 Expiration Date is defined in Item 6 of Schedule B.
Year 10 Rent Reset Effective Date is defined in paragraph (b) of Article
23.
Year 10 Rent Reset Lease Amendment is defined in paragraph (b) of Article
23.
Year 10 Rent Reset Option is defined in paragraph (b) of Article 23.
Year 20 Rent Reset Effective Date is defined in paragraph (d) of Article
23.
Year 20 Rent Reset Lease Amendment is defined in paragraph (d) of Article
23.
Year 20 Rent Reset Option is defined in paragraph (d) of Article 23.
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Pennsylvania Lease Agreement
SCHEDULE A
Description of Land
(Follows This Page)
Pennsylvania Lease Agreement
SCHEDULE B
Lease Data
1. Date of Lease: May 21, 2004
2. Lessor: CRICIPECPA LP, a Delaware limited partnership
c/o CRIC Capital, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
3. Lessee: INTERNATIONAL PLASTICS AND EQUIPMENT CORP.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4. Commencement Date: The Date of Lease
5. Basic Term Expiration Date: June 1, 2014
6. Year 5 Expiration Date: June 1, 2009
Year 10 Expiration Date: June 1, 2014
Year 15 Expiration Date: June 1, 2019
Year 20 Expiration Date: June 1, 2024
7. Basic Rent shall be paid as follows:
a. Basic Rent shall accrue for and be payable for the period from the
Commencement Date through the last day of the month in which the
Commencement Date occurs in the amount of $6,892.81, and shall be payable
on the Commencement Date. Thereafter, Basic Rent in an amount equal to the
5 Year Basic Rent Sum shall accrue and Lessee shall pay the same for each
calendar month starting with June 1, 2004, in advance, on the 1st day of
each month, commencing June l, 2004, and continuing on the 1st day of each
month thereafter through and including May 31, 2009. The 5 Year Basic Rent
Sum shall be the sum of (i) the 5 Year A Rent, plus (ii) the B Rent.
b. Intentionally Omitted.
c. If Basic Rent is reset in accordance with Article 23, Basic Rent shall
be paid in accordance with each applicable Rent Reset Lease Amendment,
defined in Article 23.
d. Basic Rent that accrues and for which Lessee becomes liable for each
month during a Renewal Term (not including the First Renewal Term) shall
be payable in advance on the 1st day of each month of any Renewal Term, in
an
11
Pennsylvania Lease Agreement
amount equal to the greater of (x) the Basic Rent payable per month during
the last year of the immediately prior term and (y) the applicable monthly
Market Rent determined in accordance with Schedule H.
e. If the Term of the Lease expires or is otherwise terminated on a date
other than an Installment Payment Date, then Basic Rent accrued and not
otherwise due shall be due and payable on such date of expiration or
termination.
f. The 5 Year A Rent means an amount equal to $21,348.59.
g. The B Rent means an amount equal to: (i) $250.00 plus (ii) interest on
the Property Subaccount B computed at the Applicable Rate for each
Calculation Period on the basis of a three hundred sixty (360) day year
consisting of twelve (12) months of thirty (30) days each.
A. Any change in the Applicable Rate shall become effective as of
the Rate Determination Effective Date. Lessor shall re-calculate the
Applicable Rate on each Rate Determination Date and shall notify
Lessee of any change in the Applicable Rate and the amount of the B
Rent until the Applicable Rate is re-calculated on the next Rate
Determination Date. Each determination by Lessor of the Applicable
Rate shall be conclusive and binding for all purposes, absent
manifest error.
B. If ▇▇ ▇▇▇▇▇▇ or Lessor shall have determined (which determination
shall be conclusive and binding upon Lessee absent manifest error)
that by reason of circumstances affecting the London interbank
eurodollar market, adequate and reasonable means do not exist for
ascertaining LIBOR, then ▇▇ ▇▇▇▇▇▇ or Lessor shall, by notice to
Lessee (an Alternate Rate Notice), which notice shall set forth in
reasonable detail such circumstances, establish the Applicable Rate
at ▇▇ ▇▇▇▇▇▇'▇ (or, if none, an Institutional Lender's reasonably
selected by Lessor) then customary spread (the Substitute Spread),
taking into account the size of the Property Subaccount B and the
creditworthiness of the issuer of the Qualifying Letter of Credit
(as defined in the Alabama Lease), above a published index used for
variable rate loans as reasonably determined by ▇▇ ▇▇▇▇▇▇ or Lessor
(the Substitute Rate).
C. If, pursuant to the terms of this Lease, the Lease has been
converted to a Substitute Rate Lease and ▇▇ ▇▇▇▇▇▇ or Lessor shall
determine (which determination shall be conclusive and binding upon
Lessee absent manifest error) that the event(s) or circumstance(s)
which resulted in such conversion shall no longer be applicable, ▇▇
▇▇▇▇▇▇ or Lessor shall give notice thereof to Lessee, and the
Substitute Rate Lease shall automatically convert to a LIBOR Lease
on the effective date set forth in such notice. Notwithstanding any
provision of this Lease to the contrary, in no event shall Lessee
have the right to elect to convert a LIBOR Lease to a Substitute
Rate Lease.
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Pennsylvania Lease Agreement
8. Lessor's Address: c/o CRIC Capital, LLC
One ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
9. Lessee's Address: INTERNATIONAL PLASTICS AND EQUIPMENT CORP.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
10. Survey means the survey of the Leased Property prepared by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Engineering, dated January 8, 2004.
11. Original Purchase Price: $3,897,363.00
12. Environmental Site Assessment: That certain report entitled "Phase I
Environmental Site Assessment" prepared by R.A.R. Engineering Group, Inc., dated
November __, 2003 (as affected by reliance letter dated April 16, 2004), with
respect to the environmental condition of the Leased Property.
13. Intentionally Omitted.
14. Intentionally Omitted.
15. Intentionally Omitted.
16. Intentionally Omitted.
17. Intentionally Omitted.
18. Intentionally Omitted.
19. Intentionally Omitted.
20. Additional Provisions: None.
3
Pennsylvania Lease Agreement
SCHEDULE C
Certain Definitions
Termination Values. The Termination Value is the applicable amount (in
dollars) shown on the seventh column of the Schedule C-1 attached to this
Schedule C and hereby made a part hereof. The dates in the second and third
columns of Schedule C-1 identify the time periods to which such Termination
Value figures correspond. The Termination Value shall be reset in accordance
with the provisions of Article 23 in the event there is a Rent Reset Lease
Amendment. In the First Renewal Term and any Renewal Term, the Termination Value
shall always be an amount equal o the Property Account plus ten percent (10%) of
the Original Purchase Price.
Final Rent Payment. The Final Rent Payment shall mean the sum of the
Property Account as of the Year 10 Expiration Date plus 10% of the Original
Purchase Price.
Reinvestment Premium. The Reinvestment Premium shall mean: an amount equal
to the sum of any so-called pre-payment premium, yield maintenance payment,
prepayment penalty or other similar payment that would be due under any Loan
Documents were the Loan evidenced thereby paid off on the date in question.
Property Account. Property Account is the applicable amount (in dollars)
shown on the sixth column of the Schedule C-1 attached to this Schedule C. The
dates in the second and third columns of Schedule C-1 identify the time periods
to which such Property Account figures correspond. In each case in which there
is a Rent Reset Lease Amendment, the Property Account shall always be the sum of
(i) the Property Subaccount A prevailing from time to time plus (ii) the
Property Subaccount B prevailing from time to time.
Property Subaccount A. Property Subaccount A is the applicable amount (in
dollars) shown on the fourth column of the Schedule C-1 attached to this
Schedule C. The dates in the second and third columns of Schedule C-1 identify
the time periods to which such Property Subaccount A figures correspond. If
there is a Year 5 Rent Reset Lease Amendment, the Property Subaccount A shall
initially be the initial principal amount of the Successor Note issued in
conjunction with the Year 5 A Financing; in each other case in which there is a
Rent Reset Lease Amendment, the Property Subaccount A shall initially be the
initial principal amount of the Successor Note issued in conjunction with such
Rent Reset Lease Amendment; in either event, thereafter, the Property Subaccount
A over the term covered by the applicable Rent Reset Lease Amendment shall be
reduced by amortizing the Property Subaccount A on a monthly basis by an amount
equal to the positive difference between (x) (i) prior to a Year 10 Rent Reset
Lease Amendment the portion of the monthly Basic Rent allocable to the Year 5 A
Financing pursuant to paragraph (a) of Article 23 or (ii) from and after a Year
10 Rent Reset Lease Amendment, the Basic Rent and (y) the product of one twelfth
of the "Prevailing Interest Rate" and the then existing Property Subaccount A.
For the purposes of the preceding sentence "Prevailing Interest Rate" shall mean
an annual interest rate equal to the rate at which the sum of the Property
Subaccount A (effective from and after the Rent Reset Lease Amendment)
(including Rent Reset Closing Costs) may be borrowed by Lessor from an
Institutional Lender secured solely by the Leased Property and an assignment of
this Lease, based on capital market conditions prevailing
Pennsylvania Lease Agreement
on the date the Rent Reset Lease Amendment becomes effective, taking into
account the terms of this Lease and the creditworthiness of Lessee at the time.
Capital market conditions shall be conclusively established based upon the
actual terms, including the rate of interest contained in the Successor Note and
related loan documents.
Property Subaccount B. Property Subaccount B is $1,137,363.00. If there is
a Year 5 Rent Reset Lease Amendment, then the Property Subaccount B shall be
reset to be the initial principal amount of the promissory note issued in
connection with the Year 5 B Financing. If the Year 10 Rent Reset Lease
Amendment is entered into, then, from and after the Year 10 Rent Reset Effective
Date, Property Subaccount B shall be $0.
Year 5 Rent Payment. The Year 5 Rent Payment shall mean $2,379,595.
2
Pennsylvania Lease Agreement
SCHEDULE C-1
(See Attached)
Pennsylvania Lease Agreement
SCHEDULE D
Permitted Encumbrances
Those exceptions shown in the owner's title insurance policy issued to
Lessor in connection with the conveyance of the Leased Property to Lessor on or
about the date hereof.
Pennsylvania Lease Agreement
SCHEDULE E
Trade Fixtures
See attached.
Pennsylvania Lease Agreement
SCHEDULE F
Subordination, Non-Disturbance and Attornment Agreement
(Follows This Page)
Pennsylvania Lease Agreement
SCHEDULE G
Estoppel Letter
(Follows This Page)
Pennsylvania Lease Agreement
SCHEDULE H
Market Rent
The fair market rent for the purpose of Schedule B of this Lease (the
Market Rent) shall be determined in the following manner.
The Market Rent shall be the fair rental value for space of equivalent
size and character in the same market area in which the Leased Property is
located under a lease term equal to the length of the Renewal Term for which the
Market Rent is being determined, giving consideration to the creditworthiness of
the Lessee. Lessor and Lessee shall negotiate to attempt to determine the Market
Rent within thirty (30) days after the date of Lessor's receipt of Lessee's
election to renew the Term of the Lease. Together with each election made by
Lessee to extend the Term of this Lease pursuant to Article 2(b), Lessee shall
specify the name and address of its designated appraiser. If, within thirty (30)
days after Lessor's receipt of Lessee's election to renew the Term of the Lease,
the parties have not agreed upon the Market Rent, Lessor shall thereafter give
notice to Lessee specifying the name and address of its designated appraiser.
Such two appraisers shall, within thirty (30) days after the designation of the
final appraiser, each make their determination of the Market Rent in writing and
simultaneously shall give notice thereof to each other and to Lessor and Lessee.
Such two appraisers shall have twenty (20) days after the receipt of notice of
each other's determinations to confer with each other and to attempt to reach
agreement as to the determination of the Market Rent. If such appraisers shall
fail to concur as to such determination within said twenty (20) day period, they
shall give notice thereof to Lessor and Lessee and shall immediately designate a
third appraiser. If the two appraisers shall fail to agree upon the designation
of such third appraiser within five days after said twenty (20) day period, they
or either of them shall give notice of such failure to agree to Lessor and
Lessee and, if Lessor and Lessee fail to agree upon the selection of such third
appraiser within five days after the appraisers appointed by the Lessor and
Lessee give notice as aforesaid, then either party on behalf of both may apply
to the American Arbitration Association or any successor thereto, or on its
failure, refusal, or inability to act, to a court of competent jurisdiction, for
the designation of such third appraiser.
All appraisers shall be independent MAI real estate appraisers who shall
have had at least 15 years' continuous experience in the business of appraising
real estate in the metropolitan area in which the Leased Property is located.
The third appraiser shall conduct such investigations as he or she may
deem appropriate and shall, within twenty (20) days after the date of his or her
designation, make an independent determination of the Market Rent.
If none of the determinations of the appraisers varies from the mean of
the determinations of the other appraisers by more than ten percent (10%), the
mean of the determinations of the three appraisers shall be the Market Rent. If,
on the other hand, the determination of any single appraiser varies from the
mean of the determinations of the other two appraisers by more than ten percent
(10%), the mean of the determination of the two appraisers whose determinations
are closest shall be the Market Rent.
Pennsylvania Lease Agreement
The determination of the appraisers, as provided above, shall be
conclusive upon Lessor and Lessee and shall have the same force and effect as a
judgment made in a court of competent jurisdiction.
Each party shall pay fees, costs and expenses of the appraiser selected by
it and its own counsel fees and one-half (1/2) of all other expenses and fees of
any such appraisal.
If for any reason the Market Rent has not been determined by the date on
which it shall become effective, then, until such Market Rent has been
determined in accordance herewith, the Market Rent shall be deemed to be the
rate specified by Lessor, and there shall be an adjustment of Basic Rent
promptly after determination of Market Rent in accordance with this Schedule H.
2
Pennsylvania Lease Agreement
SCHEDULE I
Intentionally Omitted
Pennsylvania Lease Agreement
SCHEDULE J
Intentionally Omitted