EXHIBIT 10.17
AGREEMENT OF LEASE
Between
SEMEX, INC.
and
PENNWALT CORPORATION
AGREEMENT OF LEASE
Between
SEMEX, INC.
and
PENNWALT CORPORATION
Table of Contents
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Page
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1. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Initial Term . . . . . . . . . . . . . . . . . . . . . . 1
(b) Extension. . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Option to Terminate. . . . . . . . . . . . . . . . . . . 2
(d) Entry by Tenant Prior to Term. . . . . . . . . . . . . . 2
3. RENOVATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Renovation by Landlord . . . . . . . . . . . . . . . . . 2
(b) Renovation by Tenant . . . . . . . . . . . . . . . . . . 3
(c) Elevator Installation. . . . . . . . . . . . . . . . . . 3
4. USE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . 4
5. RENT AND OTHER PAYMENTS BY TENANT. . . . . . . . . . . . . . . . 4
(a) Minimum Rent, Initial Term . . . . . . . . . . . . . . . 4
(b) Extension Term . . . . . . . . . . . . . . . . . . . . . 4
(c) Capital Improvements . . . . . . . . . . . . . . . . . . 5
(d) Termination Charge . . . . . . . . . . . . . . . . . . . 6
6. ADDITIONAL RENT. . . . . . . . . . . . . . . . . . . . . . . . . 7
7. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Fire and Other Insurance . . . . . . . . . . . . . . . . 10
(b) Liability. . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Evidence of Payment. . . . . . . . . . . . . . . . . . . 11
(d) Waiver of Subrogation; Rights under
Insurance Policies . . . . . . . . . . . . . . . . . . . 11
(e) Blanket Policies . . . . . . . . . . . . . . . . . . . . 11
(f) Increase of Premium. . . . . . . . . . . . . . . . . . . 12
(g) Self Insurance . . . . . . . . . . . . . . . . . . . . . 12
8. TENANT'S FIXTURES. . . . . . . . . . . . . . . . . . . . . . . . 12
9. SIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . 13
11. ALTERATIONS AND ADDITIONS BY TENANT . . . . . . . . . . . . . . 15
12. LANDLORD'S RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . 16
13. NET LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14. UTILITY CHARGES . . . . . . . . . . . . . . . . . . . . . . . . 17
15. GOVERNMENTAL REGULATIONS . . . . . . . . . . . . . . . . . . . . 17
16. MECHANIC'S LIENS . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) No Liens . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Discharge of Liens . . . . . . . . . . . . . . . . . . . 18
(c) Waiver of Liens. . . . . . . . . . . . . . . . . . . . . 18
(d) No Consent of Landlord Intended. . . . . . . . . . . . . 18
(i)
17. DAMAGE BY FIRE OR OTHER CASUALTY. . . . . . . . . . . . . . . . 19
18. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 20
19. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Condemnation of Entire Premises . . . . . . . . . . . . 21
(b) Partial Condemnation. . . . . . . . . . . . . . . . . . 21
(c) Termination . . . . . . . . . . . . . . . . . . . . . . 22
(d) Award . . . . . . . . . . . . . . . . . . . . . . . . . 22
20. NON-ABATEMENT OF RENT . . . . . . . . . . . . . . . . . . . . . 22
21. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . 22
22. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . 22
23. NONDISTURBANCE. . . . . . . . . . . . . . . . . . . . . . . . . 23
24. MEMORANDUM OF LEASE; TENANT'S CERTIFICATE . . . . . . . . . . . 23
25. CURING TENANTS' DEFAULTS. . . . . . . . . . . . . . . . . . . . 24
26. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27. SURRENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
28. DEFAULTS - REMEDIES. . . . . . . . . . . . . . . . . . . . . . 25
29. GRACE PERIOD. . . . . . . . . . . . . . . . . . . . . . . . . . 27
30. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
31. ADVERSE POSSESSION. . . . . . . . . . . . . . . . . . . . . . . 27
32. CONDITION OF TITLE AND OF PREMISES. . . . . . . . . . . . . . . 28
33. DEFINITIONS AND CONSTRUCTION. . . . . . . . . . . . . . . . . . 28
(a) Definition of "Landlord". . . . . . . . . . . . . . . . 28
(b) Definition of "Tenant". . . . . . . . . . . . . . . . . 28
(c) Definition of "Mortgage" and
"Mortgagee". . . . . . . . . . . . . . . . . . . . . . . 28
(d) Definition of "Mechanic's Lien" . . . . . . . . . . . . 29
(e) Definition of "Person". . . . . . . . . . . . . . . . . 29
(f) Definition of "Proportionate Share" . . . . . . . . . . 29
(g) Consents. . . . . . . . . . . . . . . . . . . . . . . . 29
34. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 29
35. WORKLETTER. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
36. CAPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
37. COVENANT REGARDING TAX EXEMPT FINANCING . . . . . . . . . . . . 30
EXHIBITS
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EXHIBIT A - The Premises
EXHIBIT B - The Tract
EXHIBIT C - Landlord's Work
EXHIBIT D - Subordination, Non-Disturbance and
Attornment Agreement
EXHIBIT E - Workletter
(ii)
THIS AGREEMENT OF LEASE (this "Lease") is made this 20 day of May,
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1986, by and between SEMEX, INC., a wholly owned subsidiary of SETON COMPANY
(hereinafter called "Landlord") and PENNWALT CORPORATION (hereinafter called
"Tenant").
Intending to be legally bound, the parties hereto agree as follows:
1. PREMISES. Landlord leases a building (hereinafter called
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"Building B" a tract of ground located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, which is more fully described by metes and bounds on Exhibit B hereto
(hereinafter called the "Tract"). Landlord does hereby demise and let unto
Tenant and Tenant does hereby lease and take from Landlord, for the term and
upon the terms, covenants, conditions and provisions set forth herein, all that
certain portion of Building B as indicated on Exhibit A hereto, which contains
approximately 41,274 square feet, and which shall be renovated in accordance
with Paragraph 3 hereof (hereinafter called the "Premises"), and together with
the right, in common with the other occupants of the Tract, to use the
driveways, sidewalks, loading and parking areas on the Tract. Tenant shall not
use more than its Proportionate Share (as hereinafter defined) of the parking
spaces available on the Tract. Tenant acknowledges that Landlord is considering
subdividing and/or modifying the boundaries of the Tract to exclude Building A
and Building C and/or to add or delete unimproved land. Tenant agrees to
cooperate with Landlord in the modification of the Tract so long as such
modification does not impair Tenant's beneficial use of the Premises or the
financial cost of this Lease. In the event that the Tract is modified, Tenant's
Proportionate Share shall be appropriately adjusted.
2. TERM.
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(a) Initial Term. The term of this Lease shall commence on
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August 1, 1986 (herein the "Commencement Date") and, unless sooner terminated in
accordance with the terms hereof, the term of this Lease shall end without the
necessity for notice from either party to the other on January 31, 1990 (herein
the "Expiration Date").
(b) Extension. Tenant shall have an option to extend the term
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of this Lease for an additional five years at a rent calculated as set forth in
Paragraph 5(b) below, upon giving Landlord written notice at least twelve months
prior to the expiration of the initial term. Further extension of the term of
this Lease shall be by mutual consent of the parties in writing.
(c) Option to Terminate. Tenant shall have the option to
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terminate this Lease at any time through the first thirty months of the initial
term, upon giving Landlord six months prior written notice no later than the end
of the twenty-fourth month of the initial term, such termination to occur only
in the event that the technical performance of the clean room is inadequate to
meet Tenant's requirements in the Piezo Film Venture. Upon such termination,
Tenant will pay a termination charge as set forth in Paragraph 5(d) below.
(d) Entry by Tenant Prior to Term. Tenant and its authorized
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agents, employees and contractors shall at all reasonable times prior to the
Commencement Date of this Lease have the right, at Tenant's own risk, expense
and responsibility, to enter the Premises for the purpose of taking measurements
and installing its furnishings and equipment and commencing the renovations
contemplated by Paragraph 3(b), provided that in so doing it shall not interfere
with or delay the work to be performed hereunder by Landlord. Tenant shall
describe in writing for Landlord prior to installation all furnishings and
equipment and other work to be performed.
3. RENOVATIONS.
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(a) Renovation by Landlord. The Premises shall be renovated
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by Landlord in accordance with Exhibit C, including bringing the clean room up
to a class 10,000 level (prior to Tenant's occupancy) as certified by a mutually
acceptable testing firm. Landlord shall have no responsibility for maintenance
of the clean room class 10,000 level subsequent to the certification by the
testing firm. Prior to Tenant's occupancy, Landlord shall repair and replace the
components of the clean room mechanical system and general HVAC systems as may
be necessary to qualify those systems under the Approved Maintenance Contract
(as defined in Paragraph 10(a)). Prior to Tenant's occupancy, Landlord shall
also make such repairs and replacements to the other utility and mechanical
systems within the Premises which are defective or inoperable as Tenant may
reasonably request as a condition to Tenant assuming the maintenance
responsibilities therefor as provided in Paragraph 10(h). New filters shall be
installed in the HVAC systems at Landlord's expense prior to Tenant's occupancy.
Landlord will also provide the existing lockers on the Premises, a demising
wall, and a new hot water boiler system as more fully described on Exhibits C
and E. All necessary construction as required hereunder to be performed by
Landlord shall be commenced promptly and the Premises shall be substantially
completed, ready for occupancy and use by Tenant, on or before August 1, 1986;
provided, however, that the time for substantial completion of the Premises
shall be extended for
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additional periods of time equal to the time lost by Landlord or Landlord's
contractors, subcontractors or suppliers due to strikes or other labor troubles,
governmental restrictions and limitations, scarcity, unavailability or delays in
obtaining fuel, labor or materials, war or other national emergency, accidents,
floods, defective materials, fire damage or other casualties, weather
conditions, or any cause similar or dissimilar to the foregoing beyond the
reasonable control of Landlord or Landlord's contractors, subcontractors or
suppliers, and in such event the Commencment Date shall be extended for a period
equal to the period of such delay. All construction shall be done in a good and
workmanlike manner and shall comply at the time of completion with all
applicable laws, ordinances, regulations and orders of the federal, state,
county or other governmental authorities having jurisdiction thereof.
(b) Renovation by Tenant. Tenant shall renovate and improve
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the Premises in accordance with its requirements, using that portion required of
$1,0537,000 made available to it by Seton Company for the purpose of capital
improvements and in compliance with Paragraph 11 herein. Such proposed
improvements shall be submitted by Tenant to Landlord, and shall be subject to
Landlord's approval prior to any work commencing. Seton Company shall not be
obligated to provide any funds to Tenant for capital improvements the cost of
which is incurred after January 31, 1988. Tenant anticipates spending not less
than $753,000 of such funds by November 30, 1986, and covenants to provide
Landlord with written notice on or before September 1, 1986 as to the minimum
amount which Tenant will spend by November 30, 1986.
(c) Elevator Installation. Tenant shall have the right at any
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time, at its sole cost and expense, to install an elevator in the Premises in
the existing elevator shaft. Such installation shall be subject to the
requirements of Paragraph 11 hereof, provided that notwithstanding anything
contained in Paragraph 11, the elevator shall become a permanent part of the
Premises upon the termination of this Lease. Tenant shall be solely responsible
for the maintenance, repair and licensing of the elevator, and shall return the
elevator to Landlord at the end of the term of this Lease in good working order.
Tenant shall be entitled to recover, as a credit (the "Elevator Credit") against
minimum rent under Paragraph 5, up to a maximum of $37,000 of the cost of
installing the elevator. The Elevator Credit shall be calculated by dividing the
lesser of the cost of the elevator or $37,000 by the number of months remaining
in the term of this Lease (including the extension term) at the time the
elevator is operational, such amount to be credited against monthly installments
of minimum rent commencing on the first of the following month. The Elevator
Credit shall not affect the
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calculation of any rent increase payable under Paragraph 5(b), although the
Elevator Credit may be applied against such increased rent. In the event that
Tenant does not exercise its right to extend the term of this Lease under
Paragraph 2(b) or if this Lease is terminated by Landlord because of a default
of Tenant, then Tenant shall forfeit any remaining Elevator Credit.
4. USE OF PREMISES. Tenant may use the facilities for the Piezo
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Film Venture, with appurtenant offices and other facilities, or for any other
lawful use provided that (a) Tenant shall give Landlord prior written notice of
any change in use, and (b) such other use shall not be objectionable to
Landlord, shall not violate any reasonable use covenants applying to the Tract,
and shall not be prohibited by Sections 103(b)(6)(O) and lO3(b)(18) of the
Internal Revenue Code of 1954, as amended.
5. RENT AND OTHER PAYMENTS BY TENANT.
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(a) Minimum Rent, Initial Term. Tenant shall pay a minimum
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annual rent of Three Hundred Seventy-Eight Thousand Seven Hundred Sixty Dollars
($378,760.00) without notice or demand and without set-off, in equal monthly
installments of Thirty-One Thousand Five Hundred Sixty-Three Dollars and
Thirty-Three Cents ($31,563.33) on the first day of each calendar month during
the term of this Lease. If the Commencement Date shall fall on a day other than
the first day of the calendar month, the rent shall be apportioned pro rata on a
per diem basis for the period between the Commencement Date and the first day of
the following calendar month and such apportioned sum shall be paid on such
Commencement Date. Rent shall be paid in lawful currency of the United States of
America to Landlord at 000 Xxxxxxxx, Xxxxxx, XX 00000, or to such other person
and such other place as Landlord may designate in writing.
(b) Extension Term. If Tenant exercises its option to extend
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this Lease as provided for in Paragraph 2(b) above, the minimum annual rent for
the first 18 months of the extension term shall be the same as the minimum
annual rent under Paragraph 5(a) above; but thereafter the minimum annual rent
shall be increased as provided below for the 19th through 39th months of the
extension term and increased again for the 40th through 60th months of the
extension term. Each increase in the minimum annual rent shall be equal to the
sum of (i) the minimum annual rent payable prior to such increase (the "Prior
Minimum Rent") plus (ii) a sum equal to the product of fifty percent (50%)
multiplied by the percentage change in the "Consumer Price Index" (as
hereinafter defined) as measured from the "Base Index" (as hereinafter defined)
to the "Comparison Index" (as hereinafter defined), multiplied by the Prior
Minimum Rent; provided,
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however, that in no event shall the annual minimum rent be reduced by the terms
and conditions of this subparagraph; and further provided that the first rent
increase only hereunder shall not be less than 7.5% nor more than 15%. For
purposes of the foregoing calculation:
(1) "Consumer Price Index" shall be the CPI-W, Urban Wage Earners
and Clerical Workers - Philadelphia; (1967 = 100), published by the
United States Bureau of Labor Statistics or any successor index. This
index is published monthly. In the event that this index is no longer
published, the parties agree to substitute a comparable index.
(2) "Base Index" shall be the Consumer Price Index for the second
month preceding the month in which the Commencement Date occurs in the
case of the first minimum annual rent increase, or for the 16th month
of the extension term in the case of the second such increase.
(3) "Comparison Index" shall be the Consumers Price Index for the
second month preceding the first month in which the particular minimum
annual rent increase is to be effective.
Landlord shall provide Tenant with a calculation of the increase in the minimum
annual rent as soon as reasonably possible. This statement will set forth (i)
the total cost of living increase and the method of calculating the same, and
(ii) the portion of the cost of living increase due from Tenant, if any, since
the effective date of such increase. Until such statement is received by Tenant,
Tenant shall continue to pay monthly rent based upon the prior minimum annual
rent. Following the receipt of such statement, Tenant shall (a) promptly make a
retroactive payment to Landlord equal to the amount of the increase applicable
to the months preceding the delivery of such statement which are subject to the
increase and (b) thereafter pay Landlord, on the first day of each succeeding
month, 1/12th of said increased minimum annual rent.
(c) Capital Improvements. The funds made available by Seton
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Company to Tenant for capital improvements to the Premises pursuant to Paragraph
3(b) shall bear interest thereon as the same are disbursed by Seton Company at
the Interest Rate (as hereinafter defined). Interest on the outstanding balance
shall be payable monthly in arrears by Tenant to Seton Company with each
installment of rent. The entire principal amount of the funds disbursed together
with all accrued
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and unpaid interest shall be payable on the last day of the initial term of this
Lease; provided that Tenant shall have the right to prepay in whole or in part
the outstanding principal balance without penalty on the first of any month
commencing February 1, 1988. For purposes of the foregoing, the "Interest Rate"
shall be the announced "prime rate" of First Pennsylvania Bank N.A. less one and
one-half percent (1.5%). In calculating the interest due in any month, the
Interest Rate shall be set as of the first of such month and applied against the
weighted average balance of funds disbursed and outstanding during such month.
Said amount shall be payable on the first of the following month. Tenant shall
include with each payment a written verification of the Interest Rate for the
month to which the payment relates together with a calculation of the interest
due and owing.
In the event Landlord sells the Premises prior to the repayment
in full of the funds advanced under Paragraph 3(b) plus interest, (i) the
provisions of this Paragraph and Paragraph 3(b) shall be deleted from this Lease
and reduced to a simple loan agreement and note in form mutually acceptable to
Seton Company and Tenant so that the obligations of Seton Company and Pennwalt
Corporation under this Paragraph and Paragraph 3(b), including without
limitation the balance of the term of the loan, shall continue as if such sale
had not occurred, and (ii) Semex, Inc. shall not be obligated to make any
further advances under Paragraph 3(b) provided that if Seton Company's bond
financing is assumed by the purchaser of the Premises, such purchaser shall be
obligated to fund the balance, if any, of such monies under the same terms and
conditions as would have applied to Semex, Inc. if such sale had not occurred.
(d) Termination Charge. In the event Tenant shall exercise
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its option to terminate this Lease pursuant to Paragraph 2(c) above, it shall
pay Landlord a termination charge equal, to the sum of (i) the unpaid portion of
the capital improvements funds provided by Landlord as set forth in Paragraph
3(b) above, and (ii) the difference between the minimum annual rent for
thirty-three months and the minimum annual rent paid through the effective date
of termination. Tenant shall make the payments required under this subparagraph
in a single payment to Landlord on the first day of the month in which the term
of this Lease will expire by virtue of the exercise of such termination option.
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6. ADDITIONAL RENT.
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(a) Tenant agrees to pay to Landlord as additional rent an
amount, on an annual basis, determined by multiplying Tenant's Proportionate
Share (as defined in Paragraph 33(f)) times the sum of Operating Costs and
Impositions for the Tract for each calendar year during the term of the Lease.
Except as hereinafter provided, such amount shall be payable annually within 30
days after receipt by Tenant of a statement therefor. For each calendar year
during the term of this Lease, Landlord may provide to Tenant a projection of
Tenant's Proportionate Share for such year of Operating Costs and Impositions,
and thereafter Tenant shall pay as additional rent with each installment of
minimum rent, 1/12th of such projected Tenant's Proportionate Share. In the
event that such statement is given after January 1 of any calendar year, Tenant
shall (a) continue to make payments based on any prior projection until the new
projection is received, (b) when such new projection is received, promptly make
a retroactive payment with respect to prior months during such year, and (c)
thereafter make future payments on the basis of the new projection. Landlord
shall have the right at any time during a calendar year to adjust its projection
of Operating Costs and Impositions, and upon Tenant being notified of any such
new projection, Tenant shall similar make a retroactive payment, and all
subsequent payments of additional rent shall be based on the new projection.
Landlord shall, within 150 days (or as soon thereafter as possible) after the
close of each calendar year, provide to Tenant a statement of Tenant's actual
Proportionate Share of Operating Costs and Impositions. If the sum of estimated
payments previously made by Tenant are less than Tenant's Proportionate Share of
actual Operating Costs and Impositions, Tenant shall promptly pay the deficiency
to Landlord. However, if the sum of such estimated payments exceeds Tenant's
Proportionate Share of actual Operating Costs and Impositions, then Landlord
shall credit the amount of such overpayment to the next rent due under this
Lease. If only part of the calendar year shall fall within the term of this
Lease, the amount computed as additional rent with respect to such calendar year
shall be prorated. Tenant shall have the right, at its cost, and upon reasonable
notice, to examine the books and records of Landlord relating to any cost to be
borne by Tenant hereunder.
(b) The defined terms used in this Paragraph 6 have the
following meanings:
(1) "Operating Costs" shall mean all direct costs of
operation and maintenance of the buildings and related facilities
on the Tract (as
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determined by standard accounting practices) that are to be
shared by Tenant under Paragraphs 7(a), 10(c) and 10(e). Such
costs shall include without limitation: water and sewer charges,
including assessments and service; any increase in insurance
premiums as provided in Paragraph 7(a); the cost of grounds
maintenance and operation and repair; snow removal and lawn and
general grounds upkeep including paving maintenance and
replacement; landscaping maintenance and replacement; electricity
for outdoor lighting; repair, maintenance and replacement of
grounds; the cost of any capital improvements made for the
purpose of reducing operating expenses, which cost shall be
amortized over such reasonable period as Landlord shall
determine, together with interest on the unamortized balance at
the rate equal to the announced "prime rate" being charged by
First Pennsylvania Bank, N.A., or such higher rate as may have
been paid by Landlord on funds borrowed for the purpose of
constructing such capital improvements (provided that the amount
of such amortization shall not exceed the savings on an annual
basis). Items of Operating Costs which are not exclusively
incurred with respect to the buildings on the Tract by reason of
the nature of the items or otherwise, shall be equitably
allocated by Landlord among the buildings to which the same
relate or for whose benefit the same have been incurred, and only
the portion allocated to the buildings on the Tract shall be
included in calculating Operating Costs. The term "Operating
Costs" shall not include utility service to be paid for directly
by Tenant as hereafter provided, depreciation, interest, net
income, franchise or capital stock taxes payable by Landlord,
executive salaries, real estate brokers' commissions, or the
costs of services not uniformly available to all. tenants of the
Tract.
(2) "Impositions" shall mean all levies, taxes, assessments,
water and sewer rents and charges, liens, license and permit
fees, charges for public utilities and all other charges, imposts
or burdens of whatsoever kind and nature, whether or not
particularized by name, and whether general or special, ordinary
or extraordinary, foreseen or unforeseen, which at any time
during the term of this Lease may be created, levied,
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assessed, conformed, adjudged, imposed or charged by any federal,
state or municipal government or public authority, or under any
law, ordinance or regulation thereof or of any public authority
whatsoever, including, among others, all special tax bills and
all special, general or other assessments, liens or charges made
on local or general improvements or under any governmental or
public power or authority whatsoever, upon or with respect to the
Tract and the buildings or any improvements now constructed
thereon (but excluding any Impositions on future additions or
improvements to the Tract except as hereinafter provided).
(c) Notwithstanding the foregoing, Tenant shall pay 100% of
all Impositions specifically and separately assessed against the improvements
made by Tenant under Paragraph 3(b) or directly upon this Lease or the rent
payable hereunder or amounts payable by any subtenants or other occupants of the
Premises, or upon this transaction or any documents to which Tenant is a party
or successor in interest, or against Landlord because of Landlord's estate or
interest herein. In the event that the Premises are separately assessed for any
type of Imposition, Tenant shall pay 100% of such Imposition and that type of
Imposition shall be deleted entirely from the calculation of Tenant's
Proportionate Share of Impositions with respect to the entire Tract.
(d) If any Imposition shall be created, levied, assessed,
adjudged, imposed, charged or become a lien with respect to a period of time
beginning before the Commencement Date or ending after the expiration of this
Lease (other than by reason of breach of any of the terms hereof by Tenant),
then Tenant shall be required to pay only that part of its share of such
Imposition which is proportionate to the length of said period which falls
within the term of this Lease. If Landlord is permitted to pay (by the assessing
and collecting authorities and by all mortgagees) any Imposition in
installments, only those installments due during the term of this Lease shall be
considered in the foregoing calculations. Nothing herein contained shall require
Tenant to pay any income or excess profits taxes assessed against Landlord, or
any corporation capital stock and franchise taxes imposed upon Landlord.
(e) Contest. Tenant, without postponement of payment, may
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bring proceedings to contest the validity or amount of any Imposition or to
recover payments therefor, provided that Tenant shall save Landlord and all
other tenants of the building
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harmless from all costs and expenses in connection with such proceedings.
Landlord shall cooperate with Tenant with respect to such proceedings to the
extent reasonably necessary, but all costs, fees and expenses incurred in
connection with such proceedings shall be borne by Tenant. Tenant shall give
Landlord written advance notice of Tenant's intention to take any such action.
7. INSURANCE.
---------
(a) Fire and Other Insurance. Landlord shall maintain and
---------------------------
keep in effect throughout the term of this Lease insurance against loss or
damage to all buildings and all other improvements now or hereafter located on
the Tract by fire and such other casualties as may be included within either
fire and extended coverage insurance or all-risk insurance in an amount equal to
the full insurable value thereof, and may maintain rent insurance, plate glass
insurance, war risk insurance (when available) and other such insurance as may
reasonably be required from time to time by any mortgagee or as may be required
generally by mortgage lending institutions. Tenant shall pay to Landlord, as
additional rent hereunder, upon demand, its Proportionate Share of any future
increase in the premiums for such insurance over the amounts payable as of the
Commencement Date. Tenant shall maintain throughout the term of this Lease
boiler insurance on the boiler serving the Premises in an amount equal to that
customarily carried on similar boilers in similar operations. Such insurance
shall name Landlord as an additional insured and shall meet (and Tenant shall
comply with) the requirements of the last four sentences of Paragraph 7(b). All
equipment purchased by Tenant with funds provided under Paragraph 3(b) shall be
insured, maintained and operated, at Tenant's sole cost and expense, as may be
required by the terms of Seton Company's bond financing.
(b) Liability. Tenant, at Tenant's sole cost and expense,
---------
shall maintain and keep in effect throughout the term insurance against
liability for bodily injury (including death) or property damage in or about the
Premises, the common areas of Building "B" and the common areas of the Tract,
under a policy of commercial general public liability insurance, with such
limits for each occurrence, in the aggregate and for personal injury and
property damage as is reasonable and is customarily carried on similar
operations. The policies of commercial general public liability insurance shall
name Landlord as an additional insured. Each policy required by this Paragraph
7(b) shall provide that it shall not be cancellable without at least thirty (30)
days prior written notice to Landlord and to any mortgagee named in an
-10-
endorsement thereto and shall be issued by a insurer licensed to do business in
the state where the Premises are located. At least five (5) days prior to the
Commencement Date of this Lease, Tenant shall provide Landlord with a
certificate evidencing such insurance and shall deliver a renewal certificate
to Landlord and at least thirty (30) days before any such policy expires. Each
such policy shall provide that no such act or omission of Tenant shall affect
the obligation of the insurer to pay the full amount of any loss sustained.
(c) Evidence of Payment. If Tenant shall fail, refuse or
---------------------
neglect to obtain or to maintain any insurance that it is required to provide or
to furnish Landlord with satisfactory evidence of payment of the premium on any
such policy within the time required as set forth above, Landlord shall have the
right, at Landlord's option, upon five (5) days notice to Tenant, to purchase
such insurance and to pay the premiums thereon or to pay the premiums on
insurance which Tenant should have paid for. All such payments made by Landlord
shall be recoverable by Landlord from Tenant on demand as additional rent
hereunder together with interest at the rate of ten percent (10%) per annum,
from the respective dates of Landlord's making the payments.
(d) Waiver of Subrogation; Rights under Insurance Policies.
--------------------------------------------------------
Each of the parties hereto hereby releases the other, to the extent of the
releasing party's insurance coverage, from any and all liability for any loss or
damage covered by such insurance which may be inflicted upon the property of
such party even if such loss or damage shall be brought about by the fault or
negligence of the other party, its agents or employees; provided, however, that
this release shall be effective only with respect to loss or damage occurring
during such time as the appropriate policy of insurance shall contain a clause
to the effect that this release shall not affect said policy or the right of
the insured to recover thereunder. If any policy does not permit such a waiver,
and if the party to benefit therefrom requests that such a waiver be obtained
and has first obtained such a waiver benefitting the other party, such other
party shall endeavor to obtain an endorsement to its insurance policies
permitting such waiver of subrogation if it is available and if such policies do
not provide therefor. If an additional premium is charged for such waiver, the
party benefitting therefrom, if it desires to have the waiver, agrees to pay to
the other the amount of such additional premium promptly upon being billed
therefor.
(e) Blanket Policies. Tenant may carry any insurance that it
-----------------
is required to provide under a blanket policy for the risks and in the minimum
amounts above specified.
-11-
(f) Increase of Premium. Tenant will not do or suffer to be
---------------------
done, or keep or suffer to be kept, anything in, upon, or about the Premises,
the Building B or the Tract which will contravene Landlord's policies insuring
against loss or damage by fire or other hazards (including but not limited to
public liability) or which will prevent Landlord from procuring such policies in
companies acceptable to Landlord. If anything done, omitted to be done or
suffered to be done by Tenant, or kept or suffered by Tenant to be kept, in,
upon, or about the Premises, Building B or the Tract shall cause the rate of
fire or other insurance on the Premises, Building B, the Tract or other property
of Landlord in companies acceptable to Landlord to be increased beyond the
otherwise prevailing rate from time to time applicable to the Premises for use
for the purposes permitted under this Lease, Tenant will pay the amount of such
increase promptly upon Landlord's demand. If Tenant's use of the Premises at any
time includes any process, procedure, equipment, or materials which render the
Premises uninsurable, Tenant shall be in default of its obligations under this
Lease and Landlord shall have available to it all remedies provided in Paragraph
28 hereunder.
(g) Self Insurance. Notwithstanding anything to the contrary
---------------
contained herein, so long as Tenant shall have positive earnings from continuing
operations (excluding extraordinary charges), Tenant shall have the right to
self-insure all or any part of the insurance required to be maintained by Tenant
hereunder. Tenant shall make Landlord whole for any loss suffered during a
period of self insurance to the extent that Landlord could have recovered under
a policy which otherwise would have been required to have been maintained by
Tenant hereunder.
8. TENANT'S FIXTURES. Subject to the provisions of Paragraphs 11
------------------
and 16 hereof, Tenant shall have the right to install in the Premises any trade
fixtures and equipment and to remove any or all such fixtures and equipment from
time to time during the term of this Lease; provided, however, that no such
installation or removal shall affect the structural portions of the Premises and
that Tenant shall repair and restore any damage or injury to the Premises caused
by the installation and/or removal of any such fixtures and equipment, such
repair and restoration to be made to a standard at least to place the Premises
in the same condition it would have been had Tenant not made such installations
and/or removals.
9. SIGNS. Except for signs which are located wholly within the
-----
interior of the Premises and which are not visible from the exterior of Building
B, no signs shall be placed,
- 12 -
erected, maintained or painted at any place upon the Premises, without the prior
written consent of Landlord as to the size, design, color, location, content,
illumination, composition or material and mobility thereof. All signs shall be
maintained by Tenant in good condition during the term of this Lease, and Tenant
shall remove all signs at the termination of this Lease and shall repair and
restore any damage caused by the installation and/or removal thereof.
10. REPAIRS AND MAINTENANCE.
-------------------------
(a) Except as specifically otherwise provided below, Tenant,
at its sole cost and expense and throughout the term of this Lease, shall keep
and maintain the Premises in good order and condition and shall promptly make
all repairs, renewals and replacements necessary to keep and maintain such good
order and condition, normal wear and tear excepted, and subject to the
provisions of Paragraph 17. All repairs, renewals and replacement shall utilize
materials and equipment which are at least equal in quality and usefulness to
those originally used in constructing the Premises. Tenant shall obtain prior to
the Commencement Date a standard maintenance contract on the clean room
mechanical system and the HVAC system serving the Premises in a form mutually
acceptable to Landlord and Tenant (the "Approved Maintenance Contract") and
shall subsequently maintain at all times during the term of this Lease a
maintenance contract on the clean room mechanical system and HVAC system serving
the Premises which provides coverage at least equal to the Approved Maintenance
Contract (or in lieu of carrying such a contract, Tenant shall be responsible
for any repairs or maintenance which would have been covered by the Approved
Maintenance Contract). Tenant will be responsible for changing filters after
Landlord's initial installation of new filters.
(b) Landlord, throughout the term hereof and at Landlord's
sole cost and expense, shall make all necessary repairs to the structure,
including the roof and walls, of Building B; provided, that Landlord shall have
no responsibility to make any repair unless and until Tenant notifies Landlord
in writing of the need for such repair and provided, further, that Landlord
shall have no responsibility to repair any damage which arises out of or is
caused by any negligence or abuse, of Tenant or any employee, agent, contractor
or invitee of Tenant, or by Tenant's installations in or upon the Premises.
(c) Landlord, throughout the term of this lease, shall make
all necessary repairs to any driveways, sidewalks, curbs, loading, parking and
landscaped areas, and other similar improvements on the Tract, provided that
Landlord shall have no
- 13 -
responsibility to make any repair unless and until Tenant or any other tenant of
Building B notifies Landlord in writing of the need for such repair. Tenant
shall pay as additional rent its Proportionate Share of the cost of all repairs
specified in this Paragraph (c) and similar repairs to Buildings A and C on the
Tract, upon being billed therefor by Landlord, except for (i) repairs made
necessary because of any abuse by or any negligent acts or omissions of any
tenant of the Tract or such tenant's employees, agents, contractors or invitees,
and (ii) repairs which under generally accepted accounting practices should be
capitalized.
(d) Landlord agrees to perform all repair work in such a manner so
as to minimize to the extent practicable any inconvenience, annoyance,
disturbance or other damages to Tenant's ongoing business operations. Landlord
agrees to give Tenant reasonable advance notice of such work, except in the
event of an emergency.
(e) Landlord shall keep and maintain all common areas of the Tract
in a clean and orderly condition, free of accumulation of dirt and rubbish,
shall keep and maintain all landscaped areas in a neat and orderly condition,
and shall perform all necessary snow removal to clear sidewalks, parking areas
and access ways. Tenant shall pay its Proportionate Share of the cost of all
work to be performed by Landlord pursuant to this Paragraph (e) as additional
rent, upon being billed therefor by Landlord.
(f) Tenant shall keep and maintain all portions of the Premises in
a clean and orderly condition, free of accumulation of dirt and rubbish. Tenant
shall not use or permit the use of any portion of the Premises for outdoor
storage. Tenant shall arrange for and shall pay for janitorial services and
trash collection required to keep the Premises in a neat and clean condition at
all times.
(g) Tenant at its election shall install or otherwise arrange for
security by personnel, electronic or other means of the Premises and shall pay
for all charges in connection therewith, including any additional electrical,
renovation, maintenance, or any other kind of labor or work required for the
installation and maintenance of such system, whether as an initial or continuing
charge.
(h) Notwithstanding anything to the contrary contained herein, any
repairs or replacements to the clean room mechanical system not covered by the
Approved Maintenance Contract (except for repairs or replacements required
because of
- 14 -
Tenant's negligence for which Tenant shall have sole responsibility) shall be
performed by or at the direction of Tenant, with the consent of Landlord, and
the cost thereof shall be allocated between Tenant and Landlord based on that
portion of the economic life of the repair or replacement which falls within the
term of this Lease (including any extensions if and when exercised) and that
portion of the economic life of the cost, repair or replacement which falls
outside of the term of this Lease, respectively. Tenant shall be solely
responsible for the cost, repair and maintenance of any additional cleanroom
mechanical equipment added to the clean room by Tenant to upgrade or otherwise
modify the system. Tenant shall also make all necessary repairs and replacements
to all utility and mechanical systems within the Premises (including rooftop
HVAC units to the extent not covered by the Approved Maintenance Contract)
serving only the Premises; provided that Landlord shall be responsible for the
repair of any catastrophic failure to such system which, in Landlord's
reasonable opinion, was not caused by Tenant's negligence or by Tenant's
modification or alteration of such system.
11. ALTERATIONS AND ADDITIONS BY TENANT. Tenant shall not make or
------------------------------------
permit to be made any alterations, improvements or additions to the Premises,
Building B or the Tract, without on each occasion first presenting to Landlord
plans and specifications therefor, including appropriate building permits and
other licenses required, and obtaining Landlord's prior written consent thereto;
except that after the initial renovation Tenant may make minor alterations,
improvements or additions to the interior of the Premises without the consent of
Landlord; provided that Tenant notifies Landlord at least 10 days in advance of
commencing such work. Landlord agrees not to withhold any required consent if:
(i) Tenant supplies Landlord with plans and specifications for the alterations,
improvements, or additions and any necessary permits therefor at least ten (10)
days in advance thereof; (ii) such alterations, improvements or additions do not
impair the structural strength of Building B, or reduce its value, or overtax
any of the mechanical systems in place at the Commencement Date; (iii) Tenant
shall take or cause to be taken all steps that are required by Paragraph 16
hereof and that are required or permitted by law in order to avoid the
imposition of any mechanic's, laborer's or materialmen's lien upon the Premises,
Building B or the Tract; and (iv) the occupants of the Tract and of any
adjoining real estate owned by Landlord are not disturbed or annoyed by reason
thereof. All, or any part of the alterations, improvements and additions made
pursuant to this Paragraph 11 may be removed by Tenant at the end of the term of
this Lease. Tenant shall remove any such alterations, improvements and
additions at the end of the term of this
- 15 -
Lease at the request of Landlord, provided that at the time of giving of
Landlord's consent to such alteration, improvement or addition, Landlord
reserved the right to so request such removal. In each case Tenant shall repair
and restore the portion of the Premises affected by such removal to its original
condition. Any alterations, improvements and additions not so removed shall be
and become part of the Premises and the property of Landlord without payment
therefor by Landlord shall be surrendered to Landlord upon the expiration or
earlier termination of the term of this Lease.
Without limiting the generality of the foregoing, Landlord consents to
the installation by Tenant of a chiller, a nitrogen tank, and a propane tank and
related improvements which shall be located outside Building B in a location
mutually acceptable to Landlord and Tenant. Tenant acknowledges Landlord's
desire to maintain the first class appearance of the exterior of Building B and
agrees to comply with Landlord's reasonable requirements as to the location and
screening of such facilities.
12. LANDLORD'S RIGHT OF ENTRY.
-----------------------------
(a) Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective mortgagee
to enter Premises at all reasonable times for the purpose of: (i) inspecting it
and (ii) making any necessary repairs thereto or to Building B or the Tract and
performing any work therein. Landlord shall give Tenant reasonable advance
notice of any such entry, and all persons so entering shall be accompanied by a
representative of Tenant, except in the case of an emergency. Landlord
acknowledges that Tenant intends to use confidential and proprietary information
and manufacturing processes in the Premises, and agrees, at the request of
Tenant, to cause all persons so entering the Premises to sign an appropriate
confidentiality agreement supplied by Tenant. Nothing herein shall imply any
duty upon the part of the Landlord to do any work or to make any repairs which
under any provision of this Lease Tenant may be required to perform, and the
performance thereof by Landlord shall not constitute a waiver of Tenant's
default in failing to perform the same.
(b) Landlord shall have the right at all reasonable times to
enter and to exhibit the Premises for the purposes of sale or mortgage, and,
during the last twelve (12) months of the term of this Lease (as the same may be
extended) or at any time after this Lease has been properly terminated as
provided for in this Lease, to enter and to exhibit them to any prospective
tenant.
- 16 -
13. NET LEASE. This Lease is a "net lease" and Landlord is not and
---------
shall not be required to render any services of any kind to Tenant except as
expressly set forth herein.
14. UTILITY CHARGES. Tenant shall be solely responsible for and
----------------
shall pay promptly all rents, costs and charges for any separately metered water
service, sewer service, gas, electricity, light, heat, steam, power, telephone
and other communication services, and any and all other separately metered
utility or service rendered or supplied upon or in connection with the Premises
or used or consumed in or servicing the Premises and all other costs and
expenses involved in the care, management and use of the Premises throughout
the term of this lease, and Tenant shall indemnify Landlord and save Landlord
harmless against any costs, liability or damages on such account. Utilities
serving the Premises which are not separately metered shall be an Operating Cost
under Paragraph 6.
15. GOVERNMENTAL REGULATIONS. Throughout the term of this Lease
-------------------------
at its sole cost and expense, Tenant shall comply promptly with all laws,
ordinances, notices, orders, rules, regulations and requirements of all federal,
state and municipal governments and all departments, commissions, boards and
offices thereof, and with all notices, orders, rules and regulations of the
National Board of Fire Underwriters or any other body now or hereafter
constituted exercising similar functions, relating to all or any part of the
interior of the Premises, or to use or manner of use of the Premises or to the
fixtures and equipment upon the Premises, whether any of the foregoing are
foreseen or unforeseen, or ordinary or extraordinary; provided, however, that
Tenant shall not be required to comply with the foregoing laws, ordinances and
notices with respect to any deficiencies in the Premises (including Landlord's
work under Paragraph 3(a) but excluding any work performed by Tenant) existing
at the time of the Commencement Date or to otherwise make any capital
improvements or repairs to the Premises unless the need for such compliance,
improvements or repairs arises out of or is caused by the particular use, manner
or occupancy of the Premises by Tenant or any employee, agent, contractor or
invitee of Tenant (as opposed to a requirement generally applicable to office,
warehouse, or manufacturing use) or by Tenant's installations in or upon the
Premises. Without limiting the generality of the foregoing, Tenant shall keep in
force at all times all licenses, consents and permits necessary for the lawful
use of the Premises for the operations conducted therein. Tenant shall pay all
personal property taxes, income taxes, license fees, and other taxes which are
or may be assessed, levied or imposed upon Tenant in connection with the
operation of its business upon the Premises, and Tenant shall observe and comply
with the
-17-
requirements of all public liability, fire and other policies of insurance
covering the Premises or the equipment thereon.
16. MECHANIC'S LIENS.
-----------------
(a) No Liens. Tenant will not create or permit to be created
---------
or remain, and will charge, any mechanic's lien arising out of work contracted
for by Tenant, and Tenant will not suffer any other matter or thing whereby the
estate, right and interest of Landlord in the Premises or any part thereof might
be impaired; provided that any mechanic's lien, notice of intention, or notice
of refusal, may be discharged in accordance with Paragraph 16(b); and provided
further that Tenant shall not be responsible for any mechanic's lien filed as a
result of work done by or for Landlord.
(b) Discharge of Liens. If any mechanic's lien shall be filed
------------------
at any time, Tenant, within fifteen (15) days after notice of the filing
thereof, will cause it to be discharged or record by payment, deposit, bond,
order of a court of competent jurisdiction or otherwise. If Tenant fails to
cause any such lien to be discharged within such fifteen (15) day period, then,
in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge such lien after giving Tenant an additional ten (10)
days notice by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit or by bonding proceedings, and in any such event,
Landlord shall be entitled, if Landlord so elects, to compel the prosecution of
any action for the foreclosure of such lien by the lienor with interest, costs
and allowances. Any amount so paid by Landlord and all costs and expenses
incurred by Landlord in connection therewith, together with interest thereon, at
the rate of ten percent (10%) per annum from the respective dates of Landlord's
making of the payments and incurring of the costs and expenses, shall constitute
additional rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord on demand.
(c) Waiver of Liens. Notwithstanding anything to the contrary
---------------
set forth in this Paragraph, prior to the making of any alterations, additions
or improvements to the Premises, Tenant shall, if allowed by applicable law,
cause to be duly filed and recorded in the appropriate offices a waiver of
mechanics' liens.
(d) No Consent of Landlord Intended. Nothing contained in
-----------------------------------
this Lease shall be deemed or construed in any way to constitute a consent or
request of Landlord, express or implied, to any contractor, subcontractor,
laborer or materialmen
-18-
for the performance of any labor or the furnishing of any materials for any
specific alteration, addition, improvement or repair, or to give Tenant any
right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to the filing
or any mechanic's lien, or to evidence Landlord's consent to the imposition of
any mechanic's lien.
17. DAMAGE BY FIRE OR OTHER CASUALTY.
-------------------------------------
If the Premises shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord, and Landlord, subject to the
conditions hereafter set forth in this Paragraph 17, shall repair, rebuild or
replace such damage and restore the Premises substantially the same condition in
which they were immediately prior to such damage or destruction. The work shall
be commenced promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer. The time for commencement and completion of
restoration shall be extended for a period equal to any time lost by Landlord
because of causes beyond Landlord's reasonable control (which shall not include
any time required to settle with insurers). The net amount of any insurance
proceeds (excluding rent insurance proceeds) recovered (or which would have been
recoverable had Landlord maintained an all risk policy in the amount of the full
insurable value of Building B) by reason of the damage or destruction of the
Premises in excess of the cost of adjusting the insurance claim and collecting
the insurance proceeds (such excess amount being hereinafter called the "net
insurance proceeds") shall be applied towards the reasonable cost of
restoration. Landlord shall not be responsible for the repair, restoration, or
replacement of the fixtures, improvements, alterations, furniture or any other
property owned, installed or made by Tenant including without limitation any
property required by Tenant under Paragraph 3(b).
Notwithstanding anything contained herein to the contrary, in the
event of any damage or destruction to the Premises, (a) if the damage or
destruction is to the office and warehouse area only, this Lease shall continue
and Landlord shall be responsible for providing Tenant with substitute space of
equal utility and value in Building A or Building C, if available, or in a
nearby facility, until the Premises are repaired, and (b) in the event that the
cleanroom is damaged (i) Landlord may elect to provide substitute cleanroom
space in Building A with adjacent warehouse and office space, all equal at value
and utility to the Premises, in which case this Lease shall be amended to
reflect the permanent substitution of such new
-19-
space for the Premises or (ii) if Landlord does not or cannot so elect to
provide such substitute space, Tenant shall have the right to terminate this
Lease in the event that the cleanroom is not repaired within the longer of 90
days from the date of damage or the date on which Tenant has available to it
sufficient process equipment so that it could, but for the unavailability of the
cleanroom, commence commercial production.
In the event that this Lease is not terminated as a result of
such damage or destruction, and provided further that such damage or destruction
was not a result of Tenant's negligence, all rent payable hereunder shall be
equitably abated during the repair period based upon the extent of the Premises
which are not useable and the relative value of such space.
18. INDEMNIFICATION.
---------------
(a) Tenant shall and does hereby indemnify and save harmless
Landlord from and against any and all claims by or on behalf of any person
arising from (i) any breach or default on the part of Tenant in the performance
of any covenant or agreement on the part of Tenant to be performed pursuant to
the terms of this Lease, or (ii) the breach of any law by Tenant, or (iii) any
act or negligence of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees. Tenant also indemnifies Landlord from and
against all costs, expenses and liabilities incurred in connection with any such
claim or any action or proceeding brought thereon (including without limitation
the fees of attorneys, investigators and experts); and if any such claim, action
or proceeding is brought against Landlord, Tenant upon notice from Landlord and
at Tenant's cost and expense shall resist or defend such claim, action or
proceeding or shall cause it to be resisted or defended by an insurer.
(b) Landlord shall and does hereby indemnify and save
harmless Tenant from and against any and all claims by or on behalf of any
person arising from (i) any breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord to be performed
pursuant to the terms of this Lease, or (ii) the breach of any law by Landlord,
or (iii) any act or negligence of Landlord or any of its agents, contractors,
servants, employees, licensees or invitees. Landlord also indemnifies Tenant
from and against all costs, expenses and liabilities incurred in connection with
any such claim or any action or proceeding brought thereon (including without
limitation the fees of attorneys, investigators and experts); and if any such
claim, action or proceeding is brought against Tenant, Landlord upon notice from
Tenant and at
-20-
Landlord's cost and expense shall resist or defend such claim, action or
proceeding or shall cause it to be resisted or defended by an insurer.
19. CONDEMNATION.
------------
(a) Condemnation of Entire Premises. If all of the Premises
---------------------------------
is taken or condemned for a public or quasi-public use (a sale in lieu of
condemnation to be deemed a taking or condemnation), this Lease shall terminate
as of the date title to the condemned real estate vests in the condemnor and
the rent herein reserved shall be apportioned and paid in full by Tenant to
Landlord to that date and all rent prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant.
(b) Partial Condemnation. If only part of the Premises is
---------------------
taken or condemned for a public or quasi-public use (a sale in lieu of
condemnation to be deemed a taking or condemnation), and if the Premises are
restored pursuant to the provision of this Paragraph (b), there shall be an
equitable abatement for the balance of the term of the minimum annual rent (and
correspondingly the monthly installments thereof) according to the value of the
Premises before and after the taking. In the event that the parties are unable
to agree upon the amount of such abatement, either party may submit the issue
for arbitration in Xxxxxxxxxx County, Commonwealth of Pennsylvania, pursuant to
the rules then obtaining of the American Arbitration Association and the
determination or award rendered by the arbitrator(s) shall be final, conclusive
and binding upon the parties and not subject to appeal, and judgment thereon may
be entered in any court of competent jurisdiction. If only part of the Premises
is taken or condemned for a public or quasi-public use, the net proceeds of any
condemnation award recovered by reason of any taking or condemnation of the
buildings in excess of the cost of collecting the award and in excess of the
difference between the market value of the Tract, buildings and other
improvements immediately prior to the taking or condemnation and the market
value of the Tract, buildings and other improvements immediately after
restoration of the damage caused by the taking or condemnation (such excess
being hereinafter called the "net condemnation proceeds") shall be applied
towards the reasonable cost of restoring the Premises, the buildings and other
improvements damaged by reason of the taking or condemnation. If the net
condemnation proceeds are more than adequate, the amount by which the net
condemnation proceeds exceed the cost of restoration will be retained by
Landlord or applied to repayment of any mortgage secured by the Premises.
-21-
(c) Termination. If the Premises as proposed to be restored will
-----------
not be suitable for Tenant's continuing operations, Tenant may elect to
terminate this Lease effective as of the date of the taking. Any such election
by Tenant shall be in writing given not more than 30 days after Tenant receives
Landlord's proposal for restorations. Notwithstanding the foregoing, if the
Premises cannot, in Landlord's opinion, be restored to an economically viable
facility as a result of such condemnation or taking, Landlord may elect to
terminate this Lease effective as of the date of the taking. Any such election
by Landlord shall be in writing given not more than 90 days after the date of
the taking.
(d) Award. In the event this Lease is terminated pursuant to the
-----
provisions of this Paragraph 19, Tenant shall have the right to make a claim
against the condemnor for the removal expenses, business dislocation damages,
moving expenses and leasehold improvements, provided and to the extent, however,
that such claims or payments do not reduce the sums otherwise payable by the
condemnor to Landlord. Except as aforesaid, Tenant hereby waives all claims
against Landlord and all claims against the condemnor, and Tenant hereby assigns
to Landlord all claims against the condemnor including, without limitation, all
claims for leasehold damages and diminution in value of Tenant's leasehold
interest.
20. NON-ABATEMENT OF RENT.
-----------------------
Except as hereinbefore expressly provided, there shall be no
abatement, diminution or reduction of the minimum annual rent, additional rent
or other sums payable hereunder for any cause whatsoever.
21. QUIET ENJOYMENT. Tenant, upon paying the annual minimum rent,
----------------
additional rent and other charges herein provided for and observing and keeping
all covenants, agreements and conditions of this Lease on its part to be kept
shall quietly have and enjoy the Premises during the term of this Lease without
hindrance or molestation by anyone claiming by or through Landlord, subject,
however, to the exceptions, reservations and conditions of this Lease.
22. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, mortgage,
--------------------------
pledge or encumber this lease, or sublet the whole or any part of the Premises
except in accordance with this Paragraph 22. Tenant shall not sublet or assign
all or part of the Premises during the initial term of the Lease. If Tenant
desires to assign or sublet all or any part of the Premises during the extension
term, Tenant shall give Landlord written
-22-
notice thereof. Landlord shall have the option, within 30 days of receipt of
such notice, to (i) amend this Lease so as to remove the space to be sublet or
assigned from the Premises in whole or in part, in which case this Lease shall
continue with rent equitably abated as to the remainder of the space, if any, in
the Premises, or (ii) permit Tenant to so assign or sublease all or a part of
the Premises, provided that Landlord shall have the right to approve the
identity of any assignee or subtenant, which approval shall not be withheld if
(a) the operations and reputation of any proposed assignee or subtenant are not
objectionable to Landlord, and (b) the proposed assignee or subtenant would not
negatively affect the tax-free status of Landlord's financing. This prohibition
against assigning or subletting shall be construed to include a prohibition
against any assignment or subletting by operation of law. In the event of any
assignment or subletting of this Lease made with or without Landlord's consent,
Tenant, nevertheless, shall remain liable for the performance of all of the
terms, conditions and covenants of this Lease. In the case of a permitted
assignment, Tenant shall require any assignee to execute and deliver to Landlord
an assumption of liability agreement in form satisfactory to Landlord (which
assumption agreement shall not discharge Tenant from its continuing obligations
hereunder), including an assumption by the assignee of all of the obligations of
Tenant and the assignee's ratification of and agreement to be bound by all the
provisions of this Lease. In the case of a permitted subletting, Tenant shall
require the sublessee to execute a sublease in a form satisfactory to Landlord
whereby the sublessee agrees to be bound by and comply with all of the terms and
conditions of this Lease.
23. NONDISTURBANCE. Within the earlier of 60 days of the execution
--------------
hereof on the Commencement Date, Landlord shall deliver to Tenant a
Subordination, Non-disturbance and Attornment Agreement from every mortgagee
substantially in the form as Exhibit D hereto. If Landlord fails to supply said
Agreement for any reason whatsoever, Tenant shall have the right to terminate
this Lease, by giving Landlord written notice thereof within 70 days of the date
of the execution of the Lease. If Tenant does not exercise its right to so
terminate within said 70 day period, Tenant's right to terminate shall be deemed
to have been waived and this Lease shall continue in full force and effect
without any obligation on Landlord to supply said Agreement.
24. MEMORANDUM OF LEASE; TENANT'S CERTIFICATE.
---------------------------------------------
(a) Tenant, at any time and from time to time and within five
(5) days after Landlord's written request, shall
-23-
execute, acknowledge and deliver to Landlord a short form or memorandum of this
Lease for recording purposes.
(b) Each party, at any time and from time to time and within
five (5) days after the other party's written request, shall execute,
acknowledge and deliver to the requesting party a written instrument in
recordable form certifying whether this Lease is unmodified and in full force
and effect (or if there have been modifications, whether it is in full force and
effect as modified and stating the modifications); stating whether the
improvements required by Paragraph 3(a) above have been completed; certifying
whether Tenant has accepted possession of the Premises; stating the date on
which the term of this Lease commenced and the dates to which annual minimum
rent, additional rent and other charges have been paid in advance, if any;
stating whether, to the best knowledge of the signer of such instrument, the
requesting party is in default in the performance of any covenant, agreement or
condition contained in this Lease; certifying any other condition reasonably
requested by or required by mortgagee or prospective mortgagee or purchaser or
subtenant or assignee of the Premises or any interest therein; and stating that
it is understood that such instrument may be relied upon by any mortgagee or
prospective mortgagee or purchaser or subtenant or assignee of the Premises or
any interest therein or by any assignee of Landlord's interest in this lease or
by any assignee of any mortgagee. The foregoing instrument shall be addressed to
the requesting party and to any mortgagee, prospective mortgagee, purchaser,
subtenant, assignee or other party specified by the requesting party.
25. CURING TENANTS' DEFAULTS. If Tenant shall be in default in the
------------------------
performance of any of its obligations hereunder, Landlord (without any
obligation to do so), in addition to any other rights it may have in law or
equity, and after written notice to Tenant except in the case of emergency, may
elect to cure such default on behalf of Tenant, and Tenant shall reimburse
Landlord upon demand for any sums paid or costs incurred by Landlord in curing
such default, including interest, at the rate of ten percent (10%) per annum,
from the respective dates of Landlord's making the payments and incurring the
costs, which sums and costs together with interest thereon shall be deemed
additional rent payable hereunder and shall be payable upon demand.
26. NOTICES. All notices, demands, requests, consents,
-------
certificates and waivers required or permitted hereunder from either party to
the other shall be in writing and sent by Federal Express or similar guaranteed
overnight delivery service. Notices to Landlord shall be addressed to Xxxx X.
-24-
Fertell, President, Seton Company, 000 Xxxxxxxx, Xxxxxx, XX 00000. Notice to
Tenant shall be addressed to Xx. Xxxxxxx X. Xxxxxxxx, Vice President and
Technical Director, Pennwalt Corporation, 000 Xxxxx Xxxxxx, Xxxx xx Xxxxxxx, Xx.
00000-0000 with a copy to Xxxxxx X. Xxxxxxx, Manager Corporate Services,
Pennwalt Corporation, Xxxxx Xxxxxxx, Xxxxxxxxxxxx, Xx. 00000, with a carbon copy
to any mortgagee or other party designated by Landlord. Either party may at any
time, in the manner set forth for giving notices to the other, set forth a
different address to which notices to it shall be sent. Notices shall be deemed
to have been given one business day after the same is sent as evidenced by the
sender's receipt from the delivery service.
27. SURRENDER.
---------
At the expiration or earlier termination of the term hereof,
Tenant shall promptly yield up, clean and neat, and in the same condition, order
and repair in which they are required to be kept throughout the term hereof, the
Premises and all improvements, alterations and additions thereto subject to
Paragraphs 8 and 11.
28. DEFAULTS-REMEDIES.
-----------------
(a) If Tenant does not pay in full when due and without
demand any and all installments of annual minimum rent or additional rent or any
other charges or payments whether or not herein included as rent; or
(b) If Tenant violates or fails to perform or otherwise
breaks any agreement, term, covenant or condition herein contained or any other
obligation herein imposed upon Tenant; or
(c) If Tenant abandons the Premises or removes or attempts to
remove Tenant's goods or property therefrom other than in the ordinary course of
business without having first paid to Landlord in full all minimum annual rent,
additional rent and other charges that may have become due as well as all which
will become due thereafter; or
(d) If Tenant becomes insolvent or bankrupt in any sense or
makes an assignment for the benefit of creditors for any such purpose, or files
a petition in bankruptcy or reorganization or for any arrangement with creditors
under any federal or state act, or files a xxxx in equity or otherwise initiates
proceedings in any court for the appointment of a receiver, trustee, liquidator,
custodian, conservator or similar official for any of Tenant's assets, or if any
-25-
of the real or personal property of Tenant shall be levied upon by any sheriff,
marshal, or constable; or
(e) If a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state act is filed against
Tenant or if a xxxx in equity or other proceeding is filed in any court by any
creditor of Tenant for the appointment of a receiver, trustee, liquidator,
custodian, conservator or similar official for any of Tenant's assets;
Then Landlord shall have the following rights:
(1) To accelerate the whole or any part of the rent for the entire
unexpired balance of the term of this Lease, as well as all other charges,
payments, costs and expenses herein agreed to be paid by Tenant; or
(2) To re-enter the Premises and remove all persons and all or any
property therefrom, either by summary dispossess proceedings or by any
suitable action or proceeding at law, and repossess and enjoy the Premises,
together with all additions, alterations and improvements. Upon recovering
possession of the Premises by reason of or based upon or arising out of a
default on the part of Tenant, Landlord may, at Landlord's option, either
terminate this Lease or make such alterations and repairs as may be
necessary in order to relet the Premises and may relet the Premises or any
part or parts thereof, either in Landlord's name or otherwise, for a term
or terms which may at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the term of this
Lease and at such rent or rents and upon such other terms and conditions as
in Landlord's sole discretion may seem advisable and to such person or
persons as may in Landlord's discretion seem best; upon each such reletting
all rents received by Landlord from such reletting shall be applied: first,
to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any costs and expenses of
such reletting, including brokerage fees and attorney's fees and all costs
of such alterations and repairs; third, to the payment of rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as it may become due and payable
hereunder. If such rentals received from such reletting during any
- 26 -
month shall be less than that to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord.
No waiver by Landlord of any breach by Tenant herein shall be a waiver of any
subsequent breach, nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be a waiver by Landlord of any rights and remedies with
respect to such or any subsequent breach. Landlord's rights hereunder are not
exclusive of any other right provided hereunder or by law.
29. GRACE PERIOD. Notwithstanding anything hereinabove stated, neither
------------
party hereto will exercise any right or remedy provided for in this Lease or
allowed by law because of any default of the other, unless such party shall
have first given written notice thereof to the other, and, if the default
consists of a failure to pay money, the other shall have failed to pay the sum
or sums due within a period of seven (7) days thereafter, or, if the default
consists of something other than the failure to pay money which cannot
reasonably be cured within ten (10) days, the other shall have failed to begin
to cure such default within ten (10) days thereafter and to thereafter continue
actively and diligently in good faith with the correction of the default until
it is fully cured; provided, however, that no such notice from Landlord and no
such grace period shall be required more than two (2) times during any twelve
(12) month period.
30. BROKERS. Tenant represents and warrants to Landlord that Tenant
-------
has had no dealings, negotiations or consultations with respect to the Premises
or this transaction with any broker or finder which it has engaged and that no
broker or finder called the Premises to Tenant's attention for lease except
Landlord's brokers, Xxxxxxx-Xxxxx Co. and Coldwell Banker, or took any part in
any dealings, negotiations or consultations with respect to the Premises.
Landlord and Tenant each represent and warrant to the other that except as set
forth herein neither of them has employed any broker, agent or finder relating
to this Lease. Landlord shall indemnify and hold Tenant harmless, and Tenant
shall indemnify and hold Landlord harmless, from and against any claim or claims
from brokerage or other commissions arising from or out of any breach of the
foregoing representations and warranty by the respective indemnitors.
31. ADVERSE POSSESSION. Tenant shall not suffer or permit the Premises
------------------
or any portion thereof to be used by the public, as such, without restriction or
in such manner as might reasonably tend to impair Landlord's title to the
Premises or in such manner as might reasonably make possible a claim or claims
- 27 -
of adverse usage or adverse possession by the public, as such, or of implied
dedication of the Premises or any portion thereof.
32. CONDITION OF TITLE AND OF PREMISES. Landlord represents that it is
----------------------------------
the owner of the Tract and that the use specified in this Lease is permitted by
the zoning regulations of Lower Providence Township applicable to the Tract.
33. DEFINITIONS AND CONSTRUCTION.
------------------------------
(a) Definition of "Landlord". The word "Landlord" is used herein
------------------------
to include the Landlord named above as well as it successors and assigns, and
any other subsequent owner of the Premises, as well as the heirs, personal
representatives or successors and assigns of any such subsequent owner, each of
whom shall have the same rights, remedies, powers, authorities and privileges as
he would have had had he originally signed this lease as Landlord, but any such
person, whether or not named herein, shall have no liability hereunder after he
ceases to hold title to the Premises, except for obligations which may have
theretofore accrued. Neither Landlord nor any principal of Landlord, whether
disclosed or undisclosed, shall have any personal liability with respect to any
of the provisions of this lease of the Premises, and if the Landlord is in
breach or default with respect to Landlord's obligations under this Lease or
otherwise, Tenant shall look solely to the equity of Landlord in the Premises
for the satisfaction of Tenant's remedies.
(b) Definition of "Tenant". The word "Tenant" is used herein to
-----------------------
include the Tenant named above as well as its successors and assigns, each of
which shall be under the same obligations, liabilities and disabilities, and
each of which shall have the same rights, privileges and powers, as it would
have possessed had it originally signed this lease as Tenant. Each and every of
the persons named above as Tenant shall be bound formally by the terms,
covenants and agreements contained herein. However, no such rights, privileges
or powers shall inure to the benefit of any assignee of Tenant immediate or
remote, unless the assignment to such assignee is permitted hereunder.
(c) Definition of "Mortgage" and "Mortgagee". The word "mortgage"
----------------------------------------
is used herein to include any lien or encumbrance on the Premises, the Tract or
the buildings and improvements thereon or on any part of or interest in or
appurtenance to any of the foregoing, including without limitation, any ground
rent or ground lease if Landlord's interest is or becomes a leasehold estate.
The word "mortgagee" is used herein to include the holder of any mortgage,
including
- 28 -
any ground lessor if Landlord's interest is or becomes a leasehold estate.
Wherever any right is given to a mortgagee, that right may be exercised on
behalf of such mortgagee by any representative or servicing agent of any such
mortgagee.
(d) Definition of "Mechanic's Lien". The term "mechanic's lien"
--------------------------------
shall mean any lien imposed upon the Premises, the Tract or the buildings and
improvements thereon or any interest therein under the Pennsylvania Mechanics
Lien Law of 1963.
(e) Definition of "Person". The word "person" is used herein to
-----------------------
include a natural person or persons, a partnership or partnerships, a
corporation or corporations, an association or associations and any other form
of business association or entity.
(f) Definition of "Proportionate Share". Tenant's "Proportionate
-----------------------------------
Share" of any Imposition, cost, charge, rent, expense or payment shall be
calculated, unless otherwise specified, by multiplying the relevant sum by a
fraction, the numerator of which shall be the floor area of the Premises and the
denominator of which shall be the total floor area of Xxxxxxxxx "X", "X" and "C"
as set forth on Exhibit A hereto. For the purposes of this paragraph, it is
estimated that the total floor area of Buildings "A", "B" and "C" is
approximately 194,480 square feet and that the floor area of the Premises is
approximately 41,274 square feet. Proportionate Share is therefore 21.2%, but
such factor may be revised based upon further calculations. Such recalculation
shall be reduced to writing and appended hereto.
(g) Consents. So long as no default has occurred and is
--------
continuing by the requesting party, whenever in this Lease a consent, approval
or similar action is required by a party, such consent, approval or similar
action shall not be unreasonably withheld or delayed.
34. ENTIRE AGREEMENT. This Lease represents the entire agreement
-----------------
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises, the
building or the Tract. No rights, easements or licenses are acquired in the
Premises or any land adjacent to the Premises by Tenant by implication or
otherwise except as expressly set forth in the provisions of this Lease. This
Lease shall not be modified in any manner except by an instrument in writing
executed by the parties. The masculine (or neuter) pronoun, singular number
- 29 -
shall include the masculine, feminine and neuter genders and the singular and
plural number.
35. WORKLETTER. The letters and schedules attached hereto as Exhibit E
----------
covering the separation of utilities and the other matters set forth therein
shall supersede the general provisions of this Lease dealing with the same
subject matter.
36. CAPTIONS. The captions in this Lease are for convenience only and
--------
are not a part of this Lease and do not in any way define, limit, describe or
amplify the terms an provisions of this Lease or the scope or the intent
thereof.
37. COVENANT REGARDING TAX EXEMPT FINANCING. Seton Company's
-------------------------------------------
acquisition and renovation of the Premises has been financed with the proceeds
of variable Rate Demand Industrial Development Revenue Bonds (Seton Company
Project) Series 1984 issued by the Xxxxxxxxxx County Industrial Development
Authority. Tenant hereby agrees (a) not to make any capital expenditure with
respect to the Premises in excess of $550,000, except for (i) expenditures under
Paragraph 3(b), (ii) equipment purchased after January 1, 1982 to be moved in
having an equipment cost exclusive of installation and rigging of not more than
$996,000, and (iii) equipment purchased prior to January 1, 1982, (b) not to do
anything which would endanger the tax exempt status of the interest payable on
the Bonds, and (c) to file with the Internal Revenue Service, such statements,
applications, elections or other written filings as Seton Company may request in
order to
- 30 -
establish and/or maintain the tax exempt status of the interest referred to
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above written.
LANDLORD: SEMEX, INC.
By: /s/
----------------------------------
Title
TENANT: PENNWALT CORPORATION
By: /s/
----------------------------------
Title
- 31 -
FIRST AMENDMENT
TO
AGREEMENT OF LEASE
This Agreement made this 18th day of October, 1994 by and between SEMEX INC., a
wholly owned subsidiary of Seton Company ("Landlord") and AMP INCORPORATED
("Tenant").
WITNESSETH:
WHEREAS, Penwalt Corporation, as Tenant entered in a certain lease
agreement with Semex, Inc., dated May 20, 1986 for approximately 41,274 square
feet of space at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx (the "Lease"), and
WHEREAS, Tenant has, in accordance with the lease, exercised its option to
extend the Lease for five years, and
WHEREAS, Tenant has assigned its interests in the Lease to Elf Atochem
Sensors, Inc., which assignment was consented to by Landlord on October 24,
1990.
WHEREAS, Elf Atochem Sensors, Inc., as tenant, has assigned its interests
in the Lease to AMP Incorporated, which assignment was consented to by Landlord
on February 19, 1993.
WHEREAS, Landlord and Tenant desire to amend the Lease.
NOW THEREFORE, in consideration of the mutual covenants, conditions, and
agreements hereunder contained and intending to be legally bound, Landlord and
Tenant agree to the following conditions:
1. The Lease term shall be extended for three (3) years, which extension
shall begin February 1, 1995 and expire on January 31, 1998.
2. Effective May 15, 1994, the Premises shall be amended to be 61,402
square feet, and Tenant shall lease the Premises, as amended herein,
in its "as is" condition.
3. Minimum Rent from May 5, 1994 to January 31, 1995 shall be increased
from Four Hundred Forty One Thousand, Three Hundred and Five
($441,305.00) Dollars, per year, to Five Hundred Thirty One Thousand,
Eight Hundred Eighty One ($531,881.00) Dollars, per year, payable in
monthly installments in accordance with the terms and conditions of
the Lease.
4. Minimum Rent from February 1, 1995 to January 31, 1998 shall be Four
Hundred Thousand, One Hundred Thirty One Dollars ($400,131.00) per
year, fixed until the expiration of the term as amended herein,
payable in monthly installments in accordance with the Lease.
5. Effective May 15, 1994, Proportionate Share as defined in Paragraph
33(f) of the Lease, shall be amended to be 31.57%.
6. The Elevator Credit found in paragraph 3(c) shall be eliminated.
7. Paragraph 37 shall be eliminated.
8. Environmental Matters.
----------------------
(a) Tenant shall not engage in operations at the Premises which
involve the manufacture, refining, disposal, or transportation
activities with respect to "hazardous substances" as such term is
defined under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), as amended, 42 US 9601 et seq. Landlord
and Tenant agree that, incidental to operations conducted by Tenant at
the Premises, Tenant may generate, treat, store and/or handle
hazardous substances, including raw materials. Tenant agrees to
conduct such activities in compliance to all applicable laws and
regulations. As of June 1, 1994, Landlord acknowledges that Tenant
generates various amounts of waste lab chemicals, isopropanol, waste
oils, and waste silver, incidental to performing operations at the
Premises, and that Tenant will continue to generate, treat, store,
and/or handle those or other wastes in conjunction with its
manufacturing operations.
(b) In the event there occurs a discharge of any hazardous substance,
Tenant shall promptly give Landlord notice thereof and shall
thereafter proceed with diligence to remediate the discharge and clean
up the Premises to regulatory levels. If reasonably indicated by the
presence of hazardous substances on the Premises, which are caused by
Tenant, Landlord may require, at Tenant's expense, reasonable
inspections and testing of the Premises by Landlord's environmental
consultant in order to assure that the Premises do not contain
hazardous substances in violation of applicable law.
(c) This Article shall survive the expiration or sooner termination of the
Lease.
9. Landlord shall contribute Twenty Thousand ($20,000.00) Dollars to
Tenant for Capital Improvements to the Premises, which shall be due
Tenant upon substantial completion of said Capital Improvements.
Should Landlord fail to pay said $20,000.00 to Tenant within thirty
(30) days after notice from Tenant, Tenant shall have the right of
offset with respect to the next (or any succeeding) monthly rental
payment due Landlord.
2
10. Each party in exercising discretion afforded to it under the various
provisions of the Lease shall be reasonable. Where consent of either
party is contemplated, such consent will not unreasonably withheld.
Each party will have a good-faith duty to take reasonable steps to
mitigate its respective damages.
11. Documents, statements or certificates as required to be provided by
Tenant shall be in a form reasonably acceptable to Tenant.
12. Each party shall be responsible for its own negligent acts or
omissions, including those of its respective employees, agents,
contractors and sub-contractors, consistent with Paragraph 18 of the
Lease.
13. If Tenant is not then default, TENANT shall have the option to extend
the Lease for an additional term of two (2) years by giving written
notice to OWNER. Rental during the extension shall be Four Hundred
Twenty Four Thousand, One Hundred Thirty Eight ($424,138.00) per year,
payable in monthly installments according to the Lease.
In order to exercise this option, TENANT must give OWNER written
notice one hundred eighty (180) days prior to the expiration date of
the lease term.
14. All other terms and conditions of this Lease Agreement shall be and
remain in full force and effect during any extension of the Lease
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal the day and year first above written.
LANDLORD:
ATTEST: SEMEX, INC.
/s/ Xxxxx X. Xxx By: /s/
-------------------------------- --------------------------------
(Asst.) Secretary (Vice) President
Tenant:
ATTEST: AMP INCORPORATED
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-------------------------------- --------------------------------
Xxxxx X. Xxxxxxxx, Secretary Xxxxxxx X. Xxxxxx, Xx.,
Chief Executive Officer
3
SECOND AMENDMENT
----------------
TO
--
AGREEMENT OF LEASE
------------------
THIS SECOND AMENDMENT is made this 20 day of NOV , 1995 by and between
---- -----
SEMEX, INC., a wholly owned subsidiary of Seton Company ("Landlord") and AMP
INCORPORATED ('Tenant").
WITNESSETH:
WHEREAS, Pennwalt Corporation, as tenant has entered in a certain lease
agreement with Semex, Inc., dated May 20, 1986 for approximately 41,274 square
feet of space at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx (the "Lease"); and
WHEREAS, said tenant has, in accordance with the Lease, exercised its
option to extend the Lease for five years; and
WHEREAS, said tenant has assigned its interests in the Lease to Elf Atochem
Sensors, Inc., which assignment was consented to by Landlord on October 24,
1990; and
WHEREAS, Elf Atochem Sensors, Inc., as tenant, has assigned its interests
in the Lease to AMP Incorporated, which assignment was consented to by Landlord
on February 19, 1993; and
WHEREAS, the Lease was amended by the terms of the First Amendment to
Agreement of Lease, between Landlord and Tenant, dated October 18, 1994 ("First
Amendment"); and
WHEREAS, Landlord and Tenant desire to amend the Lease and the First
Amendment.
NOW THEREFORE, in consideration of the mutual covenants, conditions, and
agreements hereunder contained, and INTENDING TO BE LEGALLY BOUND, Landlord and
Tenant do hereby agree as follows:
1. First Amendment Option to Extend: Lease Term. Notwithstanding anything to
----------------------------------------------
the contrary contained in the Lease or the First Amendment, the following
provisions shall govern:
(a) Tenant hereby exercises its option to extend the Lease in accordance
with the terms and conditions of the option found in Paragraph 13 of
the First Amendment.
(b) Tenant and Landlord further agree to extend the term of the Lease for
one (1) additional year beyond the option to extend described in
Paragraph 1(a) above, so that the Lease, as amended herein, shall
expire on January 31, 2001.
2. Minimum Rent. Minimum Rent from February 1, 1998 to January 31, 2001 shall
-------------
be increased from Four Hundred Thousand One Hundred Thirty-one
($400,131.00) Dollars per year to Four Hundred Twenty-four Thousand One
Hundred Thirty-eight ($424,138.00) Dollars per year, fixed, until the
expiration of the term as amended herein, payable in equal monthly
installments in accordance with the Lease.
3. Option To Extend. Notwithstanding anything to the contrary contained in the
----------------
Lease or First Amendment, the following provisions shall govern:
(a) Provided Tenant is not then in material default of the Lease, Tenant
shall have the option to extend ("Option To Extend") the Lease for one
(1) additional term of two (2) years from February 1, 2001, by giving
Landlord written notice no less than one hundred eighty (180) days
prior to January 31, 2001.
(b) Minimum Rent for the Option To Extend term set forth in Paragraph 3(a)
above, shall be Four Hundred Fifty-five Thousand Nine Hundred
Forty-eight and 35/100 ($455,948.35) Dollars per year, fixed, payable
in equal monthly installments in accordance with the Lease.
(c) In the event Tenant shall not exercise the Option To Extend described
in Paragraph 3(a) above, Tenant shall then pay Landlord Forty-five
Thousand Four Hundred ($45,400) Dollars. If due and owing, Tenant
shall make the payment required under this subparagraph in a single
payment on or before February 10, 2001.
4. Capital Improvements. Landlord has received construction drawings prepared
---------------------
by Xxxxxxxx Xxxxxx Co. from Tenant, detailing Tenant's planned alterations,
improvements and additions ("Capital Improvements") to the Premises; and,
the complete list of construction drawings received by Landlord, is
attached to this Second Amendment, and made part hereof as Exhibit A.
Notwithstanding anything to the contrary in the Lease, Landlord consents to
those Capital Improvements contained in the list of construction drawings
found in Exhibit A, subject to the following terms and conditions:
(a) The terms and conditions found in a letter from Seton Company to
Tenant, dated June 7, 1995, and attached hereto as Exhibit B and
incorporated
2
herein by reference, which includes, without limitation, Landlord's
reservation of its right, in accordance with Paragraph 11 of the
Lease, to request that Tenant remove Tenant's Capital Improvements
upon expiration of the Lease.
(b) Tenant acknowledges and agrees that Landlord has not evaluated
Tenant's construction drawings nor design specifications, to determine
whether or not Tenant's Capital Improvements may impair the structural
strength of or overtax any of the mechanical systems of the Premises,
or Building C; and, Tenant agrees that it shall be responsible for any
and all costs to repair any damage to said structural and mechanical
systems which occur as a result of Tenant's Capital Improvements.
(c) Landlord shall not be responsible for any repair or maintenance of
Tenant's Capital Improvements.
5. Capital Improvements Contribution. Including the Twenty Thousand
-----------------------------------
($20,000.00) Dollar contribution due Tenant under Paragraph 1 of the First
Amendment to the Lease, Landlord agrees to contribute a total of One
Hundred Twenty Thousand ($120,000.00) Dollars ("Capital Improvements
Contribution") to the cost of Tenant's Capital Improvements. The Capital
Improvements Contribution shall be delivered to Tenant on or before thirty
(30) days from the execution of this Second Amendment.
6. Broker. Landlord's broker in Paragraph 30 of the Lease shall be changed to
------
be The Xxxxx Company.
7. Miscellaneous.
-------------
(a) The Lease, the First Amendment and this Second Amendment constitute
the entire agreement of the parties with respect to the subject matter
thereof and supersedes any prior or contemporaneous representations or
agreements not contained therein.
(b) All of the terms of the Lease, except as expressly amended by the
First Amendment and this Second Amendment, shall remain in full force
and effect hereafter, and are hereby ratified, approved and confirmed
in all respects by each of the parties.
(c) In the case of conflicts between the provisions of the First
Amendment, this Second Amendment and/or the original provisions of the
Lease, the provisions of this Second Amendment, the First Amendment
and the Lease, in that order, shall control.
3
(d) No provision of this Second Amendment may be waived or modified except
to the extent expressly done so in writing signed by the party to be
bound thereby.
(e) The Lease and the First Amendment are incorporated herein by reference
thereto, as if set forth at length in this Second Amendment. All
capitalized terms used but not defined in this Second Amendment shall
have the same meaning as assigned to such terms in the Lease or the
First Amendment, as applicable. The term "Lease" and all references
thereto, or to any portion thereof, as utilized in the Lease or this
Second Amendment, shall mean and refer to the Lease as revised
pursuant to the First Amendment and this Second Amendment.
(f) This Second Amendment will only be binding upon the Landlord if Tenant
executes a copy of this Second Amendment and returns a fully signed
copy of this Second Amendment to Landlord by 5:00 p.m., EST, on
__________, 1995, time being of the essence.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
under seal the day and year first above written.
LANDLORD:
ATTEST: SEMEX, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/
-------------------------------- --------------------------------
(Vice) President
Tenant:
ATTEST: AMP INCORPORATED
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxxxxx, Secretary Xxxxx X. Xxxxxx
President
EXHIBIT A
TO
SECOND AMENDMENT
The following were prepared by Xxxxxxxx Xxxxxx, Planners, Engineers, Architects
and Managers, Spartanburg, South Carolina.
Specifications
--------------
Dated: 4.18.95
Titled: Amp, Flexible Films Products
Group, Piezo Film Sensors,
Norristown PA.
Project Manager Manual, Facility
modifications Amp Xxxx. #000.
Drawings
--------
Titled: Amp, Flexible Films Products
Group, Piezo Film Sensors,
Norristown PA.
Project Manager Manual, Facility
modifications Amp Xxxx. #000.
ARCHITECTURAL DATED
------------- -----
A-1 Notes & Abbreviations 4.18.95
X-0 Xxxxxxxxx Xxxxxx Xxxxx Plan 4.18.95
A-3 Composite Second Floor Plan 4.18.95
A-4 Roof Plan & Roof Details 4.18.95
X-0 Xxxxxx Xxxxx Plan 4.18.95
X-0 Xxxxxx Xxxxx Xxxx Xxxx X 4.18.95
A-7 Second Floor Plan Area A 4.18.95
A-8 Reflected Ceiling, Floor Plan Area A 4.18.95
X-0 Xxxxxxxxx Xxxxxxx Xxxx - Xxxxxx Xxxxx Xxxx X 4.18.95
X-00 Xxxxxxxxx Xxxxxxx Xxxx - Xxxxxx Xxxxx - Xxxx X 4.18.95
A-11 Finish & Door Schedule 4.18.95
A-12 Miscellaneous Sections & Details 4.18.94
EXHIBIT A
TO
SECOND AMENDMENT
HEATING, VENTILATING, AIR CONDITIONING DATED
-------------------------------------- -----
HV-1 Abbreviations, Legends, Symbols & Notes 4.18.95
XX-0 Xxxxxx Xxxxx Xxxx Xxxx X 4.18.95
XX-0 Xxxxxx Xxxxx Xxxx Xxxx A 4.18.95
XX-0 Xxxxx Xxxxx Xxxx Xxxx X 4.18.95
HV-5 Upper Level Plan Area A 4.18.95
HV-6 Roof Plan 4.18.95
HV-7 Sections 4.18.95
HV-8 Details 4.18.95
HV-9 Schedules 4.18.95
PLUMBING & MECHANICAL DATED
--------------------- -----
X-0 Xxxxxx Xxxxx Xxxx X 4.18.95
X-0 Xxxxxx Xxxxx Xxxx A 4.18.95
X-0 Xxxxx Xxxxx Xxxx X 4.18.95
X-0 Xxxxx Xxxxx Xxxx A 4.18.95
2
EXHIBIT A
TO
SECOND AMENDMENT
ELECTRICAL DATED
---------- -----
E-1 Legend & Luminaire Schedule 4.18.95
X-0 Xxxxxxxxxx Xxxx Xxxxxx Xxxxx 4.18.95
E-3 Demolition Plan Second Floor 4.18.95
X-0 Xxxxxxxx Xxxx - Xxxxxx Xxxxx Xxxx A 4.18.95
X-0 Xxxxxxxx Xxxx - Xxxxxx Xxxxx Xxxx X 4.18.95
E-6 Lighting Plan - Second Floor Area A 4.18.95
X-0 Xxxxx Xxxx - Xxxxxx Xxxxx Xxxx X 4.18.95
X-0 Xxxxx Xxxx - Xxxxxx Xxxxx Xxxx A 4.18.95
X-0 Xxxxx Xxxx - Xxxxxx Xxxxx Xxxx X 4.18.95
X-00 Xxxxx Xxxx - Xxxxxx Xxxxx Xxxx A 4.18.95
E-11 Power Plan - Roof 4.18.95
E-12 Panel Board Schedules 4.18.95
E-13 Auxiliary Systems Ground Floor Ara A 4.18.95
E-14 Auxiliary Systems Ground Floor Area B 4.18.95
E-15 Auxiliary Systems Second Floor Area A 4.18.95
E-16 Auxiliary Systems Second Floor Area B 4.18.95
E-17 Auxiliary Systems Details 4.18.95
Initials:/s/ /s/
--------- ----------
AMP, Inc. Semex
3
EXHIBIT B
TO
SECOND AMENDMENT
S E T 0 N
SETON COMPANY - 0000 Xxxxxx Xxxxxxxxx - Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone (000) 000-0000 Telecopier (000) 000-0000
Telex 887941
June 7, 1995
Xx. Xxxxxx Xxxxxxxxx
Cost Analyst
Plaza Film Sensors
AMP, Inc.
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
RE: DRAWING REVIEW
000 XXXXX XXXXXX
XXXXXXXXXX, XX
Dear Xxxxxx:
Semex, Inc. has received end reviewed the construction drawings shown in the
attached AMP Drawings List for planned improvements to the Forge Avenue
facility.
In accordance with Paragraph 11 of AMP, Inc.'s lease with Semex, Inc., Semex is
prepared to provide its prior written consent for the improvements shown in the
AMP Drawings List, subject to the following conditions:
1. Semex's roof maintenance contractor shall have the right to inspect the
HVAC curbs and flashing, as well as the treatment of any other roof cuts,
prior to final acceptance.
2. AMP shall be responsible for all roof damage during construction, and be
required to repair all roof leaks while construction is in progress.
3. AMP shall install walking pads or other similar traffic bearing material
along delineated access paths used to service the newly installed HVAC
units.
4. The proposed ground level HVAC condensing unit for CRU #1 shall be screened
with natural planting materials, and placed to permit snow plowing and snow
stacking.
5. All new and re-tubed existing light fixtures shall be tagged inside to
indicate correct type of replacement bulbs required.
Xxxxxx Xxxxxxxxx
June 7, 1995
Page 2
6. AMP shall obtain all required building permits prior to construction.
7. AMP shall provide Semex with a written statement from the project's design
engineers stating that, after review, they have determined that the
existing electrical service, including feeder, primary disconnect and
transformer are adequate for AMP'S intended purposes, and will meet current
codes under new loads.
In addition, along with the prior consent, Semex reserves the right to request
the removal of any alteration, improvements and additions at the end of the
lease.
Sincerely.
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Insurance Administrator
cc: Xxxxx Xxxxxxx
Xxxx Xxxxx
ASSIGNMENT OF LEASE
-------------------
This Agreement, effective the 14TH day of August, 1998, is entered into
----- ------
between AMP Incorporated, a corporation organized under the laws of the
Commonwealth of Pennsylvania having its principal place of business at 000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000, referred to as "Assignor", and
Measurement Specialties, Inc., a corporation organized under the laws of the
State of New Jersey, having its principal place of business at 00 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000, referred to as "Assignee."
RECITALS
--------
The parties recite and declare:
A. Assignor entered into a lease agreement described below, as Tenant
for a term that extends to January 31, 2001.
B. Assignee desires to assume the rights, liabilities, and duties of
Assignor in the lease agreement.
In consideration of the mutual covenants contained in this Agreement, the
parties agree as follows:
1. Assignor does grant, convey, and assign to Assignee all of its
rights as Tenant in the lease agreement originally entered into on May 20, 1987
by Semex Inc., a wholly owned subsidiary of Seton Company ("Landlord") and
Pennwalt Corporation ("Tenant"), as amended on October 18, 1994 by a First
Amendment in which AMP Incorporated was named as Tenant, having been assigned
its interest as Tenant by assignments previously approved by Landlord, and as
further amended on November 20, 1995 by a Second Amendment also naming AMP
Incorporated as Tenant (which agreements are collectively referred to as the
"Lease"), demising premises known as Building B, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, containing approximately 61,402 square feet as more
particularly described by metes and bounds in Exhibit B to the original Lease.
2. Assignee shall have the demised premises during all the remainder of
the term of the Lease, and any renewals or extensions of the Lease, to the
extent, if any, provided in the Lease, and shall abide by the terms of the Lease
and assume all obligations and responsibilities of Tenant provided therein.
3. Neither this Agreement nor the acceptance of rent by Landlord from
Assignee pursuant to this assignment shall release, relieve, or in any manner
modify the obligations and liabilities of Assignor under the terms and
conditions of the Lease, all of which obligations and liabilities of Assignor
shall remain in force notwithstanding this assignment.
4. Assignee accepts the assignment made in this instrument and assumes
the liability and duty to perform all of the terms and conditions of the Lease
on the part of the Assignor to be performed.
5. A true, correct and complete copy of the Lease and all modifications
thereto are attached to this Assignment, there have been no oral or written
amendments to or modifications of the Lease except for the written amendments,
if any, that are attached hereto, and the Lease represents the entire Agreement
between Landlord and Assignor regarding the Premises.
6. The term of the Lease is scheduled to expire on January 31, 2001.
7. As of the date hereof, the minimum rent owing for the Premises is
$424,138.00 per year, fixed, until the expiration of the term, payable in equal
monthly installments, plus additional rent for Assignee's proportionate share
of operating expenses, as set forth in Section 6 of the Lease.
8. To Landlord's knowledge, there are no defaults under the Lease, but
Landlord has not made any investigation or inquiry to ascertain defaults and
therefore reserves all rights to assert any default that may be found to exist.
9. If Assignor or Assignee employs an agent in connection with any
sublease or further assignment involving all or any portion of the leased
premises, they will employ for such purposes the real estate agent stipulated by
Landlord.
10. All alterations, improvements or additions to the Premises made by
Assignor have been approved by the Landlord.
11. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Lease.
In witness whereof and intending to be legally bound, each party to this
assignment has caused it to be executed under seal as of the date above written.
ASSIGNOR
AMP INCORPORATED
Attest: /s/ By: /s/ (Seal)
---------------------- ----------------------------
Xxxxx X. Xxxxxx, Chairman of the Board
ASSIGNEE
MEASUREMENT SPECIALTIES, INC.
Attest: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx. (Seal)
---------------------- ----------------------------
The foregoing assignment is approved by Landlord this 4th day of August
1998.
LANDLORD
Attest: /s/ By: /s/ (Seal)
---------------------- ----------------------------
MEASUREMENT
SPECIALTIES
July 17, 2000
VIA FEDERAL EXPRESS AND CERTIFIED MAIL
-----------------------------------------
Seton Company
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxxx, President
Re: Lease Renewal
Dear Xx. XxXxxxxxxx:
Measurement Specialties, Inc. is the current Tenant of certain premises known as
Xxxxxxxx X, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Pennsylvania, pursuant to a Lease
Agreement originally entered into on May 20, 1986 by Semex Inc., a wholly owned
subsidiary of Seton Company, and Pennwalt Corporation, as amended by a First
Amendment dated October 18, 1994 in which AMP Incorporated was named as Tenant
(having been assigned its interest as Tenant by assignments previously approved
by Landlord), and a Second Amendment dated November 20,1995 (the "Second
Amendment"); the tenant's interest in such Lease, as so amended, was
subsequently assigned to Measurement Specialties, Inc. by an Assignment of Lease
dated August 14, 1998 between AMP Incorporated and Measurement Specialties, Inc.
Please be advised that, pursuant to Section 3(a) of the Second Amendment,
Measurement Specialties, Inc. is hereby exercising its option to extend the
Lease for one additional term of two (2) years from February 1,2001 to January
31,2003, at a Minimum Rent of $455,948.35 per year. The Tenant is not in
material default of the Lease.
Kindly indicate your receipt of this letter by signing the enclosed copy in the
space indicated below and retuning to me at the following:
Measurement Specialties, Inc
Attn: Xxxx X. Xxxxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax (000) 000-0000
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
E-mail: xxxx@xxxxxx.xxx
Web site: xxx.xxxxxx.xxx
