GROUND LEASE
THIS GROUND LEASE (this "Lease"), is made as of the 13th day of August,
2001, by and between READING TERMINALS CORPORATION, a Pennsylvania corporation
(the "Landlord") and COLUMBIA PROPANE CORPORATION, a Delaware corporation (the
"Tenant"), and provides as follows:
RECITALS
A. Landlord is the fee owner of that certain real property containing
approximately 15.067 acres located in Spring Township, Berks County,
Commonwealth of Pennsylvania (the "Property") shown on that certain plat of
survey dated July 13, 2000, prepared by Spotts, Stevens and McCoy, Inc.,
entitled "Preliminary Subdivision Plan," and attached hereto as EXHIBIT A (the
"Survey").
B. Landlord conducts a petroleum storage and distribution operation on a
portion of the Property.
C. Tenant conducts a propane storage and distribution operation on a
portion of the Property.
D. Landlord desires to lease to Tenant and Tenant desires to lease from
Landlord a portion of the Property on the terms and conditions set forth
below.
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants contained
and set forth herein, together with other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. PREMISES. Landlord leases and demises to Tenant and Tenant takes and
leases from Landlord, on an exclusive basis, that certain real property,
shown as Lot 2 on the Survey containing approximately 5.664 acres, together
with full and complete legal and physical access by means of existing roads
and rights of way on a 24 hours per day, seven days per week basis and all
appurtenances, rights, privileges and easements thereto (the "Premises").
2. PURPOSE. Tenant shall have the right to use and occupy the Premises for
the operation of a propane storage and distribution facility and related
uses and for no other purpose.
3. REPRESENTATIONS AND WARRANTIES. Landlord represents and warrants the
following to Tenant:
(a) Landlord has full right and lawful authority to execute this
Lease for the term, in the manner, and upon the conditions and provisions
herein contained;
(b) Landlord is a corporation duly formed, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania;
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(c) Neither the execution of this Lease by Landlord nor the
performance by Landlord of the terms hereof will conflict with or violate
any other agreement or instrument or any writ, order or decree to which
Landlord is a party or by which Landlord is bound; and
(d) To the knowledge of Landlord, there is no litigation or other
proceeding currently pending or threatened against Landlord or any owner,
stockholder, partner or affiliate of Landlord or the Property which could
adversely affect Landlord's ability to perform any of Landlord's
obligations hereunder or Tenant's rights hereunder.
4 TERM. The term of this Lease shall be twenty (20) years, and shall
commence on the date hereof (the "Commencement Date") and shall expire at
midnight on the day preceding the twentieth anniversary of the Commencement
Date (subject to the renewal rights described below) (the "Expiration
Date") Tenant shall have the right to extend this Lease (the "Renewal
Option"), on the same terms and rental set forth herein, for two additional
terms of ten (10) years each (the "Renewal Lease Terms"), provided,
however, such Renewal Option is contingent upon the following: (i) there is
no Event of Default by Tenant at the time Tenant gives Landlord written
notice of Tenant's intention to exercise the Renewal Option; and (ii) upon
the Expiration Date or the expiration of any Renewal Lease Term, there is
no Event of Default by Tenant. Tenant shall exercise each Renewal Option by
giving Landlord written notice at least sixty (60) days prior to the
Expiration Date or the last day of any Renewal Lease Term. If Tenant fails
to give such notice to Landlord prior to said sixty-day period, then Tenant
shall forfeit the Renewal Option. If Tenant exercises the Renewal Option,
then during any such Renewal Lease Term, Landlord and Tenant's respective
rights, duties and obligations shall be governed by the terms and
conditions of the Lease. All references in this Lease to the term "Term"
shall include any renewals thereof.
5 BASE RENT. Tenant covenants and agrees to pay to Landlord, without prior
demand, rent in the total annual sum of Twelve Thousand and 00/100 Dollars
($12,000.00), payable in monthly installments of One Thousand and 00/100
Dollars ($1,000.00) each (the "Base Rent"). Base Rent for the first month
shall be due on the Commencement Date. Base Rent for each month thereafter
shall be due on the first day of each month. If the Commencement Date is on
any day other than on the first day of the month, Base Rent for the first
month shall be prorated according to the number of days during which the
Tenant will occupy the Premises during such month. If the Term ends on a
day other than the last day of a calendar month, Base Rent for the last
month shall be prorated according to the total number of days during which
the Tenant will occupy the Premises during such month.
Rent shall be adjusted as of each anniversary date of this Lease. The
increase in Rent each year shall be three (3%) percent based upon the Rent
for the previous year.
In the event that Tenant shall fail to pay any Base Rent within ten (10)
days of the date when the same shall become due, Tenant shall be obligated
to pay Landlord a late charge of five percent (5%) of the amount of any
past due payment in addition to the payment then due, which late charge
shall also be considered as Base Rent until paid.
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6. OTHER COSTS. This Lease is an absolute net lease, which the parties intend
to yield net to Landlord the rental provided for above. Tenant will pay all
costs, expenses, and charges of every kind and nature relating to the
Premises and improvements on it that may arise or become due during the
Term. Tenant covenants to pay, among other things, all personal property
taxes and assessments, sales, use and occupancy taxes, water and sewer
rates, rents and charges, charges for public and private utilities, fees
for governmental approvals, and all other governmental charges and fees
(general and special, ordinary and extraordinary, foreseen and unforeseen,
of any kind and nature whatsoever) that may, during the Term, be imposed
on, payable with respect to, or become a lien on the Premises, any present
or future structural improvements or its appurtenances. In addition, Tenant
covenants to pay to Landlord, its pro rata share of all real estate and
similar taxes and assessments (including assessment for local or municipal
improvements) levied on the land of the Property, as determined by dividing
the acreage of the Premises by the acreage of the Property and multiplying
the quotient by the total tax levied on the Property. Tenant's pro rata
share is initially set at 37.6%. Tenant and Landlord shall work in good
faith to determine an allocation between the parties (prior to the
commencement of this Lease and from time to time as applicable) regarding
real estate and similar taxes and assessment based on the improvements
owned and/or operated by each party which are located on the Premises and
elsewhere on the Property. Notwithstanding anything contained herein to the
contrary, Tenant shall not be responsible for any kind or type of cost,
expense or charge that does not relate to the Premises or Tenant's use of
the Premises, including without limitation, any cost, expense or charge
relating to the remainder of the Property, such as taxes, costs, expenses,
or fees relating to improvements not located on the Premises or penalty
and/or interest due to Landlord's late payment of same. Tenant may, at
Tenant's expense, contest, in good faith, any such tax, or assessment or
other governmental charge or other cost set forth in this Section;
provided, that pending the outcome of such contest, Tenant shall make any
payments required by this Section. Landlord agrees to reasonably cooperate
with Tenant's efforts in each such contest.
7. OUTLET ENJOYMENT. Tenant, upon observing and keeping all covenants,
agreements and conditions of this Lease on Tenant's part to be kept and
observed, shall quietly have and enjoy the Premises throughout the Term (as
the same may be extended), without hindrance or interference by Landlord or
by anyone claiming by, from, through or under Landlord.
8. MAINTENANCE. During the Term of this Lease, Tenant covenants, at Tenant's
cost and expense, (i) to substantially repair, maintain, amend and keep the
Premises and all improvements now existing or hereafter built on the
Premises in generally in good order and condition, except that Tenant shall
have the right, in accordance with all applicable laws and regulations, to
idle and mothball any tanks or equipment that it deems to be uneconomic to
further maintain, and (ii) to keep the access roads, rights-of-way and
pavement located on and serving the Premises free from snow and ice,
maintain the parking areas located on and serving the Premises and perform
all weeding, trimming, pruning, watering and mowing of grass and landscaped
areas located on the Premises Landlord shall, at Landlord's cost and
expense, repair and maintain all other access roads, rights of way and
pavement located on the remainder of the Property (excluding the
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Premises) in good order and condition and free from snow and ice and shall
maintain parking areas and curbing located on the remainder of the Property
and perform all weeding, trimming, pruning, watering and mowing of grass
and landscaped areas located on the remainder of the Property.
9. UTILITIES AND SERVICES. Tenant shall provide and pay for all heat,
electricity, air conditioning, telephone access, or any other facilities,
utilities, or services, of any kind whatsoever, to or at the Premises or
its improvements during the Term. All utilities supplied to the Premises
for Tenant's use which are not separately metered as of the date hereof
shall be separately metered at Tenant's expense.
10. IMPROVEMENTS. Tenant shall not have the right to make any improvements,
alterations, renovations or additions to the Premises without the prior
written approval of Landlord, which approval shall not be unreasonably
withheld or delayed. All such work shall be performed and installed at
Tenant's sole cost and expense in accordance with plans and specifications
to be supplied by Tenant. Landlord and Tenant agree and acknowledge that
title to the buildings, equipment and improvements on the Premises together
with title to all additions, alterations, improvements or replacements are
and will be in Tenant. Upon the expiration or other termination of this
Lease, Tenant may remove its property and improvements, provided Tenant
repairs, at the expense of Tenant, any damage caused by such removal and
restores the Premises to a neat and clean condition with ground at grade,
reasonable wear and tear, casualty damage and conditions required to be
maintained by Landlord excepted. Tenant's failure to remove any of its
property at the expiration or other termination of this Lease shall be
deemed abandonment of such property and shall be deemed the property of
Landlord without further action by either party and without cost to Tenant.
11. ASSIGNMENT. Tenant covenants that the Premises shall be used only for the
purposes mentioned above. Tenant will not assign this Lease, license,
sublet, mortgage or permit any other person to occupy the Premises, or any
part thereof without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Landlord may,
without obtaining the consent of Tenant, assign this Lease and its interest
hereunder; provided, however, that Landlord shall cause its assignee to
agree in writing to honor the terms and conditions of this Lease.
Notwithstanding the foregoing, however, Tenant may assign this Lease to
AmeriGas Propane, L.P., without Landlord's consent.
12. DEFAULT. The following events shall be deemed to be Events of Default by
Tenant under this Lease.
If Tenant: (i) fails to pay when due any Rent, or any other sum of money
which Tenant is obligated to pay, as provided in this Lease, within five
(5) business days after Landlord has given Tenant written notice of
Tenant's failure to pay such amount due; (ii) breaches any other agreement,
covenant or obligation herein set forth and such breach shall continue and
not be remedied within thirty (30) days after Landlord shall have given
Tenant written notice specifying the breach, or if such breach cannot, with
due diligence, be cured within said period of thirty (30) days and Tenant
does not within said thirty (30)
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day period commence and thereafter with reasonable diligence completely
cure the breach within a reasonable time after such notice, not to exceed
an additional thirty (30) days after the end of the original thirty (30)
day cure period; (iii) files (or has filed against it and not stayed or
vacated within sixty (60) days after filing) any petition or action for
relief under any creditor's law (including bankruptcy, reorganization, or
similar action), either in state or federal court; or (iv) makes any
transfer in fraud of creditors as defined in Section 548 of the United
States Bankruptcy Code (11 U.S.C. 548, as amended or replaced), has a
receiver appointed for its assets (and appointment shall not have been
stayed or vacated within thirty (30) days), or makes an assignment for
benefit of creditors.
Upon the occurrence of an Event of Default by Tenant, in addition to any
other lawful right or remedy which it may have, Landlord at its option may
do the following: (i) terminate this Lease whereupon Tenant shall
peacefully surrender the Premises to Landlord, and Landlord may re-enter
and repossess the Premises by force, summary proceedings, ejectment or
otherwise, and may dispossess Tenant from the Premises; or (ii) recover
from Tenant, on demand as and for liquidated and agreed final damages for
Tenant's default, an amount equal to the balance of the Base Rent which
would have been due and payable under this Lease following the date on
which Landlord has retaken possession of the Demised Premises, less any
Rent actually received by Landlord from the reletting of the Demised
Premises for such time period.
All rights and remedies of Landlord are cumulative, and the exercise of any
one shall not be an election excluding Landlord at any other time from
exercise of a different remedy. No exercise by Landlord of any right or
remedy granted herein shall constitute or effect a termination of this
Lease unless Landlord shall so elect by written notice delivered to Tenant.
The failure of Landlord or Tenant to exercise its rights in connection with
this Lease or any breach or violation of any term, or any subsequent breach
of the same or any other term, covenant or condition herein contained shall
not be a waiver of such term, covenant or condition or any subsequent
breach of the same or any other covenant or condition herein contained.
13. NUISANCE. Tenant covenants not to allow the Premises to be used for any
illegal purpose and not to do (or suffer to be done) in or about the
Premises any act or thing which may be a nuisance, annoyance, inconvenience
or cause damage to Landlord or occupants of adjoining property.
14. INDEPENDENCE OF PARTIES. At no time during the Term of this Lease shall
Landlord be deemed to be the joint employer of any of Tenant's employees,
nor shall Tenant be deemed to be the joint employer of any of Landlord's
employees. Each group of employees shall be separately supervised and paid
by its respective employer. Neither party nor its employees shall be
considered to be engaged in a joint enterprise, alliance, or partnership
with the other party or its employees.
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15. CONDITION UPON TERMINATION. Upon the termination of this Lease, Tenant
covenants to deliver to Landlord the Premises and all appurtenances
thereto, peaceably and quietly, in as good order and condition as the same
now are or may thereafter be placed by Tenant, normal wear and tear
excepted.
16. DAMAGE BY FIRE OR CASUALTY. If the Premises shall be partially damaged by
fire or other casualty insured under Tenant's insurance policies, and if
Tenant's lender(s) shall permit insurance proceeds paid as a result thereof
to be so used, then upon receipt of the insurance proceeds, Tenant may,
except as otherwise provided herein, promptly repair and restore those
portions of the Premises necessary for the reasonable operation of Tenant's
business and the beneficial use and enjoyment of the Premises by Tenant (or
those portions of the improvements constructed by Tenant upon the Premises)
substantially to the condition thereof immediately prior to such damage or
destruction; limited, however, to the extent of the insurance proceeds
received by Tenant if by reason of such occurrence: (i) the Premises are
rendered wholly untenantable; (ii) the Premises are damaged in whole or in
part as a result of a risk which is not covered by Tenant's insurance
policies; (iii) Tenant's lender does not permit a sufficient amount of the
insurance proceeds to be used for restoration purposes; (iv) the Premises
are damaged in whole or in part during the last three (3) years of the
Term; (v) the buildings and other improvements located upon the Premises
are damaged to an extent of fifty percent (50%) or more of the fair market
value thereof, or (vi) Tenant, in its sole discretion, determines that the
Premises are not suitable for Tenant's business, then Tenant may, in its
sole discretion, elect either to repair the damage as aforesaid, or to
cancel this Lease by written notice of cancellation given to Landlord
within sixty (60) days after the date of such occurrence, and thereupon
this Lease shall terminate immediately. Tenant shall vacate and surrender
the Premises to Landlord within sixty (60) days after receipt of such
notice of termination. Upon the termination of this Lease as aforesaid,
Tenant's liability for the Rent and other charges reserved hereunder shall
cease immediately as of the effective date of the termination of this
Lease, subject, however, to the provisions for abatement of Rent
hereinafter set forth. Unless this Lease is terminated as aforesaid, this
Lease shall remain in full force and effect, and Tenant shall promptly
repair, restore, or replace Tenant's improvements, and trade fixtures
located upon the Premises to substantially that condition existing prior to
their damage or destruction.
If, by reason of such fire or other casualty, the Premises is rendered
wholly untenantable, then the Rent payable by Tenant shall be fully abated,
or if only partially damaged, such Rent and other charges shall be abated
proportionately as to that portion of the Premises rendered untenantable,
in either event (unless the Lease is terminated, as aforesaid) from the
date of such casualty until the premises have been substantially repaired
and restored to a tenantable condition, or until Tenant's business
operations are restored in the entire Premises, whichever shall first
occur. Tenant shall continue the operation of Tenant's business in the
Premises or any part thereof not so damaged during any such period to the
extent reasonably practicable from the standpoint of Tenant's business
management.
17. CONDEMNATION. If the Premises, or any part thereof shall be taken or
condemned for any public purpose (or conveyed in lieu or in settlement
thereof) to such an extent as to render the remainder of the Premises, in
the reasonable opinion of Tenant, not reasonably
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suitable for occupancy, this Lease shall, at the option of Tenant, forthwith
cease and terminate. If this Lease is not so terminated Rent hereunder shall be
adjusted on an equitable basis considering the areas of the Premises taken and
remaining.
18. COMPLIANCE WITH LAWS, ORDINANCES, ETC.
(a) Throughout the term, Tenant shall, at Tenant's sole cost and
expense, comply with all laws, statues, ordinances, orders, rules,
regulations or requirements of any federal, state or municipal government,
agency, department, commission, board or officer having jurisdiction,
foreseen or unforeseen, which are applicable specifically to Tenant's
particular method or manner of use of the Premises, or any part thereof.
(b) Tenant shall have the right to contest, by appropriate proceedings
diligently conducted in good faith the validity or application of any law,
ordinance, order, rule, regulation or requirement of the nature referred to
in this Section, provided that the delay in conformance to or compliance
with the same, attendant upon and pending the prosecution of such
proceedings, shall not subject Landlord to any fine, penalty or criminal
liability or render the Premises, or any part thereof, liable to,
forfeiture or loss. Upon request by and at the cost of Tenant, Landlord
shall execute and deliver any and all such documents or instruments and
shall take any and all such other action as shall be legally necessary or
proper to permit Tenant so to contest the validity or application of any
such law, ordinance, order, rule, regulation or requirement, or to
facilitate the conduct of such contest by Tenant.
19. INDEMNIFICATION: INSURANCE
(a) Indemnification: Tenant shall indemnify and hold Landlord harmless
from and against any and all claims arising out of (i) Tenant's use of the
Premises or any part thereof, (ii) any activity, work, or other thing done,
permitted or suffered by Tenant, its employees, agents or contractors in or
about the Premises or the Property, or any part thereof, (iii) any breach
or default by Tenant in the performance of any of its obligations under
this Lease, or (iv) any act or negligence or willful misconduct of Tenant,
or any officer, agent, employee, contractor, servant, invitee or guest of
Tenant, and in each case from and against any and all damages, losses,
liabilities, lawsuits, costs and expenses (including attorneys' fees at all
tribunal levels) arising in connection with any such claim or claims as
described in (i) through (iv) above, or any action brought thereon. Subject
also to the foregoing, Landlord shall indemnify and hold Tenant harmless
from and against any and all claims arising out of (i) any breach or
default by Landlord in the performance of any of its obligations under this
Lease, or (ii) any act or negligence of Landlord, or any officer, agent,
employee, contractor or servant of Landlord, and in each case from and
against any and all damages, losses, liabilities, lawsuits, costs and
expenses (including attorneys' fees at all tribunal levels) arising in
connection with any such claim or claims as described in (i) and (ii)
immediately above, or any action brought thereon.
(b) Insurance. Throughout the Term, Tenant, at its sole cost and
expense, shall keep or cause to be kept for the benefit of Landlord and
Tenant, Commercial
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General Liability Insurance (1986 ISO Form or its equivalent) with coverage
for any one occurrence or claim not less than TWO MILLION DOLLARS
($2,000,000), which policy shall insure against liability of Tenant,
arising out of and in connection with Tenant's use of the Premises and
which shall insure the indemnity provisions contained herein. Such
insurance shall name the Landlord as an additional insured. Tenant shall
also carry the equivalent of ISO Special Form Property Insurance on its
personal property located in the Premises and any improvements constructed
upon the Premises by Tenant.
All such policies shall be non-assessable and shall contain language to
the extent obtainable at standard rates that: (i) any loss shall be payable
notwithstanding any act or negligence of Landlord or Tenant that might
otherwise result in forfeiture of the insurance, (ii) that the policies are
primary and non-contributing with any insurance that Landlord may carry,
and (iii) that the policies cannot be canceled, non-renewed, or coverage
reduced except after thirty (30) days' prior written notice to Landlord.
20 ESTOPPEL CERTIFICATES Tenant and Landlord agree that at any time and from
time to time during the Term on this Lease, and within fifteen (15) days
after receipt of written demand therefore by the other, Landlord and
Tenant, as the case may be, shall execute and deliver to the party
requesting same or to any proposed mortgagee, trustee, beneficiary or
purchaser, a certificate in recordable form certifying that this Lease is
in full force and effect, that the Lease is unmodified, or if modified
stating any such modifications, the amount of rental payable hereunder,
whether, to the actual knowledge of the signing party, the other party is
in default, the dates to which all rentals have been paid and such other
information as the parties or their mortgagees may reasonably request.
21 SUBORDINATION Tenant acknowledges that this Lease and Tenant's rights
hereunder are subject and subordinate to any and all mortgages and other
encumbrances now or hereafter placed upon the Premises or upon the
Property, provided that Tenant, Landlord and all other applicable parties
(including, without limitation, mortgagees) execute and deliver to each
other within fifteen (15) days after receipt of a written demand, any
instrument or instruments confirming the subordination and non-disturbance
of this Lease to the lien and any further instrument or instruments of
attornment that may be desired by Tenant, any such mortgagee or Landlord
containing provisions, each to the effect that (i) so long as there is no
uncured Event of Default under this Lease, Tenant will not be effected or
disturbed by the mortgagee in the exercise of any of its rights under the
mortgage or other security agreement; (ii) in the event the mortgagee comes
into possession or ownership of the Premises by foreclosing or otherwise,
Tenant's use, occupancy and quiet enjoyment of the Premises shall not be
disturbed by any such proceedings; (iii) in the event the Demised Premises
are sold or otherwise disposed of pursuant to any right or power contained
in the mortgage or other security agreement, or the bond or note secured
thereby, or as a result of the proceedings thereon, the purchaser shall
take title subject to this Lease, and all of the rights of Tenant
hereunder, and (iv) the agreement shall be binding upon Landlord, the
mortgagee and their respective heirs, executors, administrators, successors
and assigns.
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22. HOLDOVER. Any holding over after the expiration of the Term shall be
construed to create a tenancy from month to month at 150% of the rent
herein specified (prorated on a monthly basis) and shall otherwise be on
the terms and conditions specified in this Lease as far as applicable.
23. NO WAIVERS. Tenant agrees that any failure of Landlord to insist upon
strict observance of any covenant, condition or provision of this Lease
shall not constitute or be deemed a waiver, at that time or thereafter, of
such or any other covenant, condition or provision of this Lease.
24. ENTRY BY LANDLORD. Landlord shall have the right, subject to prior
appointment during regular business hours, except in the event of an
emergency, either itself or through its authorized agents, to enter the
Premises (i) to inspect the Premises, and (ii) to show the Premises to
prospective mortgagees and purchasers. Landlord shall have the right,
subject to prior appointment and during regular business hours, either
itself or through its authorized agents, to enter the Premises for
inspection to show prospective tenants if within one hundred eighty (180)
days prior to the Expiration Date (subject to Tenant's right to renew the
Term) or the last day of any Renewal Lease Term. Tenant has not exercised
its option to renew under this Lease. Landlord shall have the right to
enter the Premises at any time in the event of an emergency.
25. ENTIRE AGREEMENT. Landlord and Tenant hereby declare that this Lease
represents the final and complete agreement of the parties regarding the
subject hereof and that: (i) no representation has been made to Tenant
concerning the condition of the Premises (except as set forth herein), (ii)
Tenant has inspected and examined the Premises and is entering into this
Lease in reliance upon Tenant's own knowledge and information (except as
set forth herein), (iii) Tenant has been informed that Landlord is not
obligated to make any repairs to the Premises during the Term of this
Lease, and (iv) no negotiations respecting repairs, including securing
estimates for such repairs, shall in any way obligate Landlord to make the
repairs or obligate Landlord for any damage for failure to make the same.
Tenant agrees to take the Premises in an "as is" condition.
26. AMENDMENTS. It is agreed that no change shall be made in this Lease except
by a writing signed by the parties hereto setting forth the terms of the
agreed modification.
27. NOTICE. All notices, demands and requests which may be given or which are
required to be given by either party to the other must be in writing. All
notices, demands and requests by Landlord or Tenant shall be addressed as
follows:
to Landlord at:
Reading Terminals Corporation
P.O. Box 2621
Harrisburg, Pennsylvania 17105
Attention: John M. Arnold, President
Fax No. ________________________
with a copy to:
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Brad J. Gunnison, Esquire
Buchanan Ingersoll, PC
213 Market Street, 3rd Floor
Harrisburg, Pennsylvania 17101
Fax No. ___________________
or to Tenant at:
AmeriGas Propane, L.P.
460 N. Gulph Road
King of Prussia, PA 19406
Attn: Account Payable
Fax No. ___________________
with a copy to:
AmeriGas Propane, L.P.
460 N. Gulph Road
King of Prussia, PA 19406
Attn: Vice President-Law
Fax No. ___________________
Either Landlord or Tenant may change the place designated for the giving of
such notice by written notice duly and timely to the other.
Notices, demands or requests which Landlord or Tenant are required or
desire to give the other hereunder shall be deemed to have been properly
given for all purposes if (i) delivered against a written receipt of
delivery, (ii) mailed by express, registered or certified mail of the
United States Postal Service, return receipt requested, postage prepaid, or
(iii) delivered to a nationally recognized overnight courier service for
next business day delivery, to its addressee at such party's address as set
forth above or (iv) delivered via telecopier or facsimile transmission to
the facsimile number listed above, provided, however, that if such
communication is given via telecopier or facsimile transmission, an
original counterpart of such communication shall be sent concurrently in
either the manner specified in section (ii) or (iii) above and written
confirmation of receipt of transmission shall be provided. Each such
notice, demand or request shall be deemed to have been received upon the
earlier of the actual receipt or refusal by the addressee or three (3)
business days after deposit thereof at any main or branch United States
post office if sent in accordance with section (ii) above, and the next
business day after deposit thereof with the courier if sent pursuant to
section (iii) above. The parties shall notify the other of any change in
address, which notification must be at least fifteen (15) days in advance
of it being effective.
28 ENVIRONMENTAL COMPLIANCE
(a) Definitions.
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(i) "Contamination" as used herein means the uncontained or uncontrolled
presence of or release of Hazardous Substances into any environmental media and
into or on any portion of the Property or any part thereof so as to require
remediation, cleanup or investigation under any applicable Environmental Law.
(ii) "Environmental Laws" as used herein means all federal, state, and local
laws, regulations, orders, permits, ordinances, and the like concerning
protection of human health and/or the environment.
(iii) "Hazardous Substances" as used herein means any hazardous or toxic
substance or waste as those terms are defined by any applicable federal or
state law or regulation (including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et. Sec.
("CERCLA") and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
sec. ("RCRA")) and petroleum products and oil.
(b) Compliance. Tenant warrants that all its activities in or on the
Premises during the Term of this Lease will be conducted in material compliance
with Environmental Laws Landlord warrants that it, the Property and the Premises
are, to the best of Landlord's knowledge and belief and based on Landlord's
reasonable inquiries and investigations, currently in compliance with all
applicable Environmental Laws and that there are no pending or, to the best of
Landlord's knowledge, threatened notices of deficiency, notices of violation,
orders, or judicial or administrative actions involving alleged violations by
Landlord or any predecessor of Landlord or against the Property or the Premises
in connection with any Environmental Laws. Landlord warrants that all its
activities on the Premises and Property during the Term of this Lease will be
conducted in compliance with Environmental Laws.
(c) Registrations. During the term of this Lease and all renewal terms,
Tenant, at Tenant's sole cost and expense, shall obtain and at all times comply
with the terms and conditions of all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business on the
Premises and shall comply with the terms and conditions of all such permits,
licenses, approvals, notifications, and registrations and with any other
applicable Environmental Laws. Tenant warrants that it has obtained or, at the
appropriate time, will obtain, all such permits, licenses or approvals and has
made or, at the appropriate time, will make all notifications and registrations
required by any applicable Environmental Laws necessary for Tenant's operations
of its business on the Premises.
(d) Hazardous Substances. Except in compliance with all laws and/or
regulations, during the term of this Lease and all Renewal Lease Terms, Tenant
shall not cause or permit any Hazardous Substances to be brought upon, kept or
used in or about the Premises, and except in compliance with all laws, Landlord
shall not cause or permit any Hazardous Substances to be brought upon, kept or
used in or about the Premises or the Property. Except in compliance with all
laws, Tenant shall not cause or permit the release of any Hazardous Substances
into any environmental media such as air, water or land, or into or on the
Premises, and except in compliance with all laws and/or
11
regulations and the requirements of any insurance carrier insuring the Property
or the Premises, Landlord shall not cause or permit the release of any
Hazardous Substances into any environmental media such as air, water or land,
or into or on the Property or the Premises. If any such release for which
Tenant is responsible under this Section shall occur during the Term or any
extension thereof, Tenant shall, at its sole cost and expense, (i) immediately
take all necessary steps to contain, control and clean up such release and any
associated Contamination, (ii) notify Landlord, and (ii) take any and all
action which may be required by Environmental Laws and governmental agencies,
and/or reasonably required by Landlord, unless the release or violation of
Environmental Laws shall have been caused by any act, omission, negligence or
willful misconduct of Landlord or its agents, employees, servants, contractors,
licensees, tenants, invitees, successors or assigns, in which event Landlord
shall be responsible for and shall pay all costs and expenses to remedy the
same. Tenant shall under no circumstances whatsoever, except in compliance with
all applicable laws, (iv) treat, store or dispose of any Hazardous Waste (as
all such terms are defined by RCRA, and the regulations promulgated thereunder)
within the Premises, (v) discharge Hazardous Substances into the storm system
serving the Premises, or (vi) install any underground tank or underground
piping on or under the Premises, other than as shall be reasonably required in
the use and occupancy of the Premises (or in replacement of such existing
underground storage tank or underground piping) and then only in full
compliance with all Environmental Laws. If any such release for which Landlord
is responsible under this Section shall occur during the Term or any extension
thereof, Landlord shall, at its sole cost and expense, (vii) immediately take
all necessary steps to contain, control and cleanup such release and any
associated Contamination, (viii) notify Tenant, and (ix) take any and all
action which may be required by Environmental Laws and governmental agencies
and/or reasonably required by Tenant. In the event of any governmental or court
order concerning Hazardous Substances on the Premises or the Property, except
to the extent caused by Tenant or its employees, agents, contractors, servants,
licensees, tenants, invitees, successors or assigns, or their respective
agents, contractors, employees, servants, licensees, invitees, subtenants,
successors or assigns, that precludes Tenant from reasonable operation of its
business on the Premises, Tenant may cease operating and Rent shall be abated.
If such governmental or court order is not resolved in such a manner that
permits Tenant to resume reasonable operation of its business on the Premises
within six (6) months of the date of the order, Tenant may terminate this Lease
by giving Landlord fifteen (15) days written notice of its election to do so.
(e) Indemnity
(i) Except to the extent the same has been made necessary solely by any act,
omission, negligence or willful misconduct of Landlord or its employees,
agents, contractors, servants, licensees, tenants, invitees, successors or
assigns, or their respective agents, contractors, employees, servants,
licensees, invitees, subtenants, successors or assigns, Tenant shall and hereby
does indemnify, defend and hold Landlord harmless from and against any and all
expense, loss, and liability suffered by Landlord, by reason of Tenant's
improper storage, generation, handling, treatment, transportation, disposal, or
arrangement for transportation or disposal, of any Hazardous Substances
(whether accidental, intentional, or negligent) during the term of this Lease
or any renewal term,
12
by reason of Tenant's breach of any warranty or provision of this Section, or in
any other way attributable to Tenant's use or occupancy of the Premises. Such
expenses, losses and liabilities shall include, without limitation, (1) any and
all reasonable expenses that Landlord may incur in complying with any
Environmental Laws as a result of Tenant's failure to comply with the terms of
this Lease; (2) any and all reasonable costs that Landlord may incur in studying
or remedying any Contamination at or arising from the Premises during the Term;
(3) any and all reasonable costs that Landlord may incur in studying, removing,
disposing of or otherwise addressing any Hazardous Substances that Tenant
improperly stored, generated, handled, treated, transported or disposed of or
failed to remove from the Premises; (4) any and all fines, penalties or other
sanctions assessed upon Landlord by reason of Tenant's failure to comply with
Environmental Laws, and (5) any and all reasonable legal and professional fees
and costs incurred by Landlord in connection with the foregoing. The indemnity
contained herein shall survive the termination or expiration of this Lease but
only with regard to conditions or provisions which Tenant is obligated by this
Lease to prevent, correct, or comply with during the Term of this Lease and any
extensions thereof.
(ii) Except to the extent the same has been made necessary solely by any act,
omission, negligence or willful misconduct of Tenant or its employees, agents,
contractors or servants, Landlord shall and hereby does indemnify, defend and
hold Tenant harmless from and against any and all expense, loss and liability
suffered by Tenant by reason of Landlord's storage, generation, handling,
treatment, transportation, disposal or arrangement for transportation or
disposal of any Hazardous Substances or by reason of Landlord's breach of any
warranty or of the provisions of this Section 26. Such expenses, losses and
liabilities shall include, without limitation, (1) any and all reasonable
expenses that Tenant may incur in complying with any Environmental Laws as a
result of Landlord's failure to comply with the terms of this Lease, (2) any
and all reasonable costs that Tenant may incur studying or remedying any
Contamination at or arising from the Property, (3) any and all reasonable costs
that Tenant may incur in studying, removing, disposing or otherwise addressing
any Hazardous Substances that Landlord improperly stored, generated, handled,
treated, transported or disposed of or failed to remove from the Property; (4)
any and all fines, penalties or other sanctions assessed upon Tenant by reason
of Landlord failure to comply with Environmental Laws; and (5) any and all
reasonable legal and professional fees and costs incurred by Tenant in
connection with the foregoing. The indemnity contained herein shall survive the
termination or expiration of this Lease but only with regard to conditions or
provisions which Landlord is obligated by this Lease to prevent, correct or
comply with during the Term of this Lease and any extensions thereof.
(f) Landlord's Covenants. Landlord represents, warrants, covenants and
agrees that Landlord shall give prompt notice to Tenant of any proceeding or
inquiry by any governmental authority, any claim or any occurrence with respect
to the presence of any Hazardous Substances on the Premises or the Property (or
off site of the Premises that may reasonably be expected to affect the Premises)
or related to any loss or injury that might result from any Hazardous
Substances.
13
(g) Tenant covenants that Tenant shall give prompt notice to Landlord
of any proceeding or inquiry by any governmental authority, any claim or
any occurrence with respect to the presence of any Hazardous Substances on
the Premises or related to any loss or injury that might result from any
Hazardous Substances.
29. COOPERATION. In order to ensure that this Lease complies with the Township
of Spring Subdivision and Land Development Ordinance or any other
applicable law, ordinance or regulation, now existing or hereafter enacted,
affecting the Premises or the Property (the "Applicable Laws"), the parties
agree to cooperate and act in good faith in order to partition the Property
as proposed by the Survey by means of (a) preparing and filing the
necessary condominium documents to create a commercial condominium
containing a propane unit and a petroleum unit, (b) file the appropriate
applications with the Township of Spring and obtain the approvals necessary
to effectuate a subdivision of the Property, or (c) by such other method as
is mutually agreeable to the parties, provided, that, any option elected by
the parties provides that: (i) all documentation is in form and substance
mutually agreeable to the parties, (ii) such documentation incorporates the
business terms contemplated under this Lease, (iii) such method of
partition does not violate the Applicable Laws, and (iv) Landlord
determines in its sole discretion that such method will not materially and
adversely affect the fair market value of the Property. Tenant shall pay
all costs and expenses related to or arising out of such partition
including, without limitation, attorneys' fees and other expenses actually
incurred by Landlord in connection with the partition and Landlord's
evaluation and analysis of each method of partition. In the effort to
expedite the partition of the Property, Tenant shall, within five (5) days
of the date this Lease is fully executed by the parties, provide to
Landlord its analysis of what it considers the most efficient, cost
effective method for partitioning the property. Landlord shall promptly
review Tenant's analysis and either elect to proceed pursuant to Tenant's
method of partition, or propose an alternate method. The parties shall work
diligently and in good faith to reach agreement on a method of partition
and to complete the partition process. If such a partition is not obtained
within one (1) year of the Commencement Date, Landlord and Tenant shall
negotiate, in good faith with each other, alternative arrangements for the
continued use and operation of the Premises or take such other action
acceptable to both parties.
30. SUCCESSORS AND ASSIGNS. All of the covenants, conditions and provisions of
this Lease shall be binding upon and shall inure to the benefit of Landlord
and Tenant and their respective heirs, executors, administrators,
successors and, if assigned in accordance with the provisions of this
Lease, assigns.
31. EXECUTION. This Lease is not binding on either party until it is signed,
acknowledged and delivered by or on behalf of each party.
32. MISCELLANEOUS. (a) General. This Lease shall be governed and construed
under the laws of the Commonwealth of Pennsylvania without regard to the
application of principles of conflicts of laws. Landlord and Tenant intend
this Lease to be a valid and subsisting legal instrument, and agree that no
provision of this Lease which may be deemed unenforceable shall in any way
invalidate any other provision or provisions of
14
this Lease, all of which shall remain in full force and effect. Time is of the
essence under this Lease.
(b) Counterparts. This Lease may be executed by the parties hereto in
separate counterparts, all of which, when delivered, shall together constitute
one and the same instrument. Notwithstanding any law or presumption to the
contrary a telefaxed signature of either party shall be deemed valid and
binding and admissible by either party against the other as if such signature
were an original ink signature
(c) No Broker. Landlord and Tenant each represent and warrant to the
other that it has not dealt with any broker or agent in connection with this
Lease, and each shall indemnify and hold the other harmless from and against
any and all costs, expenses (including reasonable attorneys' fees) and
liabilities relating to any compensation, commissions or charges by any broker
or agent with whom the indemnifying party has had or claims to have had any
dealings.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
15
SIGNATURE PAGE TO GROUND LEASE
WITNESS the following signatures and seals:
LANDLORD:
READING TERMINALS CORPORATION,
a Pennsylvania corporation
By: Robert G. Bost
--------------------------
Its: Vice President
-------------------------
TENANT:
COLUMBIA PROPANE CORPORATION
a Delaware corporation
By: Mark A. Cleaves
--------------------------
Its: Vice President
--------------------------
15
SIGNATURE PAGE TO GROUND LEASE
WITNESS the following signatures and seals:
LANDLORD:
READING TERMINALS CORPORATION,
a Pennsylvania corporation
By: Robert G. Bost
-------------------------
Its: Vice President
-------------------------
TENANT:
COLUMBIA PROPANE CORPORATION
a Delaware corporation
By: Mark A. Cleaves
-------------------------
Its: Vice President
-------------------------
16
EXHIBIT A
SURVEY
17
[Intentionally Omitted]