tz/jdu .^~ \ 22-a KING STREET POTTSTOWN, PENNSYLVANIA ,9464 323"f°* MATTHEW S. 5ANTANCELO 323-33O7 EDWARD A.SKYPALA 489-9778 MARK 5-5ANTANG£LO ^^, ^jLfofipi F. RANDALL SELACY MCI MAIL 'D-267-9521 August 20, 1986 REFER TOFILE: U.S. ENVIRONMENTAL PROTECTION AGENCY Region III CERCLA Remedial Enforcement Section (3HW12) 841 Chestnut Bldg., 6th Floor Philadelphia, PA 19107 ATTN: Ms. Humane 2ia Reference: 3HW12 Dear Ms. Zia: In response to your letter dated July 25/ 1986, which was received at CryoChem on July 30f 1986, the follow- ing information is supplied. 1. CryoChem, Inc. (which does not manufacture or sell chemicals) has been operating at this site for twenty- four years. We acquired ownership on July 14, 1982. Cry- oChem is a custom fabricator of pressure vessels and custom process equipment. 2. As metal fabricators, we receive carbon steel, stainless steel and other alloys in plate and bar forms from which we fabricate tanks, pressure vessels, lubricating sys- tems and other custom fabrications. We shear, burn, grind and weld to make our finished products. AR200087
Transcript
tz/jdu. ~ \
22-a KING STREETPOTTSTOWN, PENNSYLVANIA
,9464 323"f°*MATTHEW S. 5ANTANCELO 323-33O7EDWARD A.SKYPALA 489-9778MARK 5-5ANTANG£LO ^ , jLfofipiF. RANDALL SELACY MCI MAIL 'D-267-9521
August 20, 1986 REFER TO FILE:
U.S. ENVIRONMENTAL PROTECTION AGENCYRegion IIICERCLA Remedial Enforcement Section (3HW12)841 Chestnut Bldg., 6th FloorPhiladelphia, PA 19107
ATTN: Ms. Humane 2ia
Reference: 3HW12
Dear Ms. Zia:
In response to your letter dated July 25/ 1986,
which was received at CryoChem on July 30f 1986, the follow-
ing information is supplied.
1. CryoChem, Inc. (which does not manufacture or
sell chemicals) has been operating at this site for twenty-
four years. We acquired ownership on July 14, 1982. Cry-
oChem is a custom fabricator of pressure vessels and custom
process equipment.
2. As metal fabricators, we receive carbon steel,
stainless steel and other alloys in plate and bar forms from
which we fabricate tanks, pressure vessels, lubricating sys-
tems and other custom fabrications. We shear, burn, grind
and weld to make our finished products.
AR200087
Ms, Humane ZiaPage TwoAugust 20, 1986
3. We are actively using four acres of a total of
about nineteen acres.
4. The chemicals we use are very limited. We use
soaps with water, biodegradable detergents with steam, on
occasion we use petroleum based oils for testing some of our
equipment, and a series of materials for detecting cracks in
welds (an oil base dye penetrant, an oil base cleaner and a
white powder base developer to locate the crack).
5. The waste we generate comes primarily from our
cleaning process.
6. and 7. Our only waste consists mostly of water
with soap, detergents, shop floor dirt and some oil that is
cleaned off. This waste is collected and stored for disposal
at the rate of approximately 6000 gal. per quarter.
8. We are not now, nor have we ever been, involved
in transporting hazardous substances. On the one occasion,
we did dispose of the materials removed from catch basin
Number 1 as covered in the letter and exhibits to EPA Wash-
ington.
9. The extent of any surface water or groundwater
contamination is also covered in the letter and exhibits to
EPA Washington.
AR200088
Ms. Humane ZiaPage ThreeAugust 20, 1986
10. We do not have any permits nor have we applied
to any hazardous waste permitting authority.
11. None.
12. None.
13. None.
Enclosed is a packet of exhibits which we hope will
be of assistance to you. We are looking forward to our meet-
ing on August 20, 1986.
Very truly yours,
Matthew s. Santangelo
EnclosuresMSS/sib
AR200089
August 20, 1986
TABLE OF CONTENTS
Exhibit A EPA letter - August 13, 1986
Exhibit B CryoChem Comments - August 7, 1986
Exhibit C EPA letter — August 5, 1986
Exhibit D EPA letter - July 25, 1986
Exhibit E EPA letter - July 25, 1986
Exhibit F CryoChem letter July 25, 1986
Exhibit G National Priorities List Site - June 17, 1986
Exhibit H EPA letter - May 21, 1986
Exhibit I CryoChem Comments - June 10, 1986
Exhibit J Settlement Sheet - July 14, 1982
Exhibit K Lease Agreement - July 13, 1982
Exhibit L Lease Agreement - July 14, 1982
Exhibit AT Memorandum of Lease - July 14, 1982
Exhibit N Assignment - July 14, 1982
Exhibit O Mortgage Note - July 14, 1982
Exhibit P Industrial/Commercial Project Agreement -July 14, 1982
AR200090
UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON. D.C. 20460
AU3 I 3 :3"OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Anthony T. CalzolaioCryoChem, Inc.Mr. Willard A. Vfede, IIIProject Manager, Hazardous Vfeste ServicesSpotts, Stevens & McCoy* Inc.P.O. Box 32Boyertown, PA 19512
Dear Commentors:
This letter acknowledges the receipt of your recent conmenton the proposed amendment to the National Priorities List (NPL)which was published in the Federal Register on June 10, 1986.Your comment was incorporated into the public docket as conmentnunber NPL-U5-3-71, dated 8/7/86, received 8/12/86.
EPA will evaluate and consider all comments postmarked byAugust 11, 1986 which is the end of the formal comtent period.We will respond to all site specific ccranents in the SupportDocument which will be available in the public docket uponannouncement of the final regulation in the Federal Register.EPA will respond to general comments regarding the NPL in theRreanble to the Final Rule.
To the extent practicable, EPA will consider commentsreceived for a limited period following the close of the conmentperiod. Due to the large volume of public comment that isanticipated and the complexity of issues involved, EPA anticipatesthat as much as six months may elapse after the close of theconment period before the Agency promulgates the Final Rule.
If you have any questions regarding the proposed NPL, callMs. TTudi Fancher, NPL Update f5 Coordinator, at (202) 382-5745.Questions regarding public docket information should be directedto Ms. Denise Sines, Superfund Docket Clerk, at (202) 382-3046.
Sincerj
Russel H. Wyer, P.E.Director
Hazardous Site Control Division
OCHEM, INC. . TWX 610-651-4487 (CRYOCHEM BYWN)30X 32, BOYERTOWN, PA 19512 . 215/689-9531
ice of Emergency and Remedial Date: August 7, 1986____________ Response (V3H-548E)""______ "" : "Your P. O. 1_LILZIL_____.Environmental Protection Agency______ _________;____________401 M. Street S.W.Washington . DC. • 20460
#5. Group 15,•Mr. Russell H. Wyer . plregtor ________ _______ ProposedHagardous Site Control Division _______ NPL SiteNPL Staff ! . CryoChem , Inc.
. • -SSM File 4216-000•men:ed you will find copies of the following documents:
>pies Document No. & Revision No. . Remarks
copy letter from Spotts, Stevens and McCoy,.Inc. regarding listing'"ofCryoChem, Inc. in Update #5 as a proposed NPL site.
amply only with those checked:• approval and / or comments. Please note your approval and /or comments thereon end return one (1) copy to us.
-your file.
ave any questions feel free to call us. •
Very truly yours,
CRYOCHEMJNC.
Anthon T. Calzolaio
AR200092
FIANNEXS • SOBiTISTSAugust 7, 1986
Office of Emergency and RemedialResponse (WH-548E)
Environmental Protection Agency401 M Street S.W.Washington DC 20460
Attention Mr. Russell H. Wyer, DirectorHazardous Site Control DivisionNPL Staff
Re: Update #5, Group 15, ProposedNPL SiteCryoChem, Inc.SSM File 4216-000
Gentlemen:
Enclosed please find one (1) copy of our comments concerning the listing ofCryoChem, Inc. in Update #5 as a proposed NPL site. This submittal is supple-mental to CryoChem's letter of 25 July 1986.
It is important to note that CryoChem, Inc. has not been and is not a treatment,storage or disposal facility. The issue of concern was a minor spill incidentin 1982 which was resolved to the satisfaction of the PA DER by early 1983.CryoChem does not even qualify as a small quantity generator per RCRA.Therefore, it confounds us as to how this facility can be classified as a pro-posed NPL site per CERCLA.
We suggest that your representatives visit CryoChem, Inc. to review the site andrelevant documentation prior to continuing with the NPL listing process.
If you have any questions, please call Mr. Anthony Calzolaio at CryoChem, Inc.(215) 689-9531 or me at the "Home Office" number listed below.
Very truly yours,
WILLARD A. WADE, III, P.!Project ManagerHazardous Waste Services
WAW:sahEnds.
cc: A. Calzolaio
AEPLY TO;n uftue n c t n - r n iwmrlTRlAL D CHEMISTRY Q LEHIGH VALLEY OPFCEO HOME OFFICE D INDUSTRIAL _ „„„„ r»nrtQ»Tnov RDIE Boa 347.WS N Wyomc»I*g Bvd. B O R A T fPO 6-.C307
COMMENTS ON THE HRS DOCUMENTATION CONCERNING LISTINGOF CRYOCHEM, INC. - WORMAN, PAAS A PROPOSED SITE ON THENATIONAL PRIORITIES LIST
UPDATE #5FEDERAL REGISTER, 10 JUNE 1986, p 21099 et seq
In paragraph #1, the summary states: "Any excess solvent is collected in shop
drains".
In fact, all solvent applied to metal surfaces evaporates. The contamination in
the metal shop drain, concrete sump, and concrete discharge pipe was caused by a
localized spill of an applicator container. Contaminated sediments in this
enclosed drain system, which discharges to an un-named tributary of Ironstone
Creek were removed. The concrete drain line, sump and discharge line were
horoughly cleaned. Additionally, the shop drain sump outlet was sealed to
preclude any spills from discharging to surface water.
Comments #2; Since the source of contamination of surface waters was removed
and since no 1,1,1 trichloroethane has been used since 1982 CryoChem, Inc. is no
longer a source of contamination in the local area. This contention is sup-
ported by monitoring well data showing 1,1,1 TCE at values less than 2 ug/1.
The continued presence of 1,1,1 TCE at low levels in surface waters and at
higher values in CryoChem's much deeper water supply well indicate that other
sources are contributing to aquifier contamination. It is also important to
note that the un-named tributary, which still shows 1,1,1 TCE contamination, 20
ug/1, originates from a spring upgradient from CyroChem's fabrication shops.
AR200091* ..'
Comment f3; Item f4 on the HRS Groundwater Route Work Sheet
How can 1,1,1 trichloroethane, which is neither carcinogenic nor potentially UB
carcinogenic, rate a toxicity/persistence value = 15, which is the second
highest value on the worksheet scale? With an MCL of 0.20 mg/1, the second
highest MCL for 8 VOC's, it would seem that the 1,1,1 TCE toxicity/persistence
value should be 9 or 12 rather than 15.
AR200095
Additional Comments:
1. CyroChem's water supply well is undoubtedly the largest point of use for
local groundwater because it serves up to 45 people while other users
are primarily residential. It is probably distorting the groundwater
regime and drawing 1,1,1 TCE to this extraction point which would explain
the high values of 1,1,1 TCE around the CryoChem property.
2. The Straube residence, next door to CryoChem, was formerly the site of a
woodworking/refinishing business and had 1,1,1 TCE values much higher
(800-1100 ug/1) than on the CryoChem property when the owner allowed
sampling in 1983 and 1984.
3. The PA DER states that drums of hazardous waste removed from the former
Boyertown Scrap Metal site were intact and not leaking. However, since
there has been no cooperation by the site owner, it is unknown if drums
containing 1,1,1 TCE could have been buried on-site and may now be leaking,
SR200096 /
UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON, D.C. 20460
5 1985 ™OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Anthony T. CalzolaioVice PresidentCryoChsn Inc.R.D. #2, Box 74ABoyertcwn, PA 19512
Dear Mr. Calzolaio:
3his letter acknowledges the receipt of your recent coaraenton the proposed amendment to the National Priorities list (NPL)which was published in the Federal Register on June 10, 1986.Your comment was incorporated into the public docket as connentntmber NPIr-X35-3-2Q , dated 7/25/86, received 7/29/86.
EPA will evaluate and consider all comments postmarked byAugust 11, 1986 which is the end of the formal comment period.Ws will respond to all site specific cements in the SupportDocument which will be available in the public docket uponannouncement of the final regulation in the Federal Register.EPA will respond to general Garments regarding the NPL in thePreamble to the Final Rule.
To the extent practicable, EPA will consider commentsreceived for a limited period following the close of the conmentperiod. Due to the large volune of public comient that isanticipated and the complexity of issues involved, EPA anticipatesthat as mtch as six months may elapse after the close of thecomment period before the Agency promulgates the Final Rule.
EPA considers the cerement period and the period beforefinal rulemaking to be a predecisional period during whichtime we are not at liberty to discuss site specific NPL issueswith interested parties. If a meeting were to take place, wewould not be able to enter into any discussions with youregarding our response to your comments. If such a meetingwere to take place, we would require that you provide writtencomments at the meeting. Consequently, we suggest that if youhave additional inf conation regarding this site, to submit itto me in writing as soon as you are able.
t?*"
•1R200097
-2-
If you have any questions regarding the proposed NPL or ourpolicy concerning meetings, call Ms. Trudi Fancher, NPL Update15 Coordinator, at (202) 382-5745. Questions regarding publicdocket information should be directed to Ms. Dsnise Sines,Superf und Docket Clerk, at .(202) 382-3046.
Russel H. Vtyer, P.E.Director
Hazardous site Control Division
AR200098
P UNITED STATES ENVIRONMENTAL PROTECTION AGENCY\ REGION III
Mr. Harold L. Nettles, PresidentCryochera, Inc.RD 2Boyertown, FA 19512
Re: The Cryochem, Inc. Facility
Dear Mr. Nettles:
The U.S. Environmental Protection Agency (EPA) is seeking informationconcerning a release, or the threat of a release, of hazardous substances intothe environment. Pursuant to the authority of Section 3007(a) of the ResourceConservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6927(a), and Section104(e) of the Comprehensive Environmental Response, Compensation, and LiabilityAct of 1980 ("CERCLA"), 42 U.S.C. Section 9604(e), your company is requestedto furnish all information and documents in its possession, custody or control,or in the possession, custody or control of any of its officers, employees oragents which concern, refer, or relate to hazardous substances as defined bySection 101(14) of CERCLA, 42 U.S.C. Section 9601(14), particularly hazardoussubstances which were transported to, stored, treated, or disposed of at theproperty currently leased fay Cryochem, Inc. on State Route 562, Boyertown,Pennsylvania (as depicted on the enclosed "Location Map").
All information and documents requested are due to the address listedbelow within ten (10) calendar days of receipt of this letter.
The response should include, but not be limited to, information anddocumentation concerning;
1. your years of ownership and/or operation of the Cryocheni, Inc*facility (Site);
2. type of operations on the Site;
3. areas of the Site utilized;
4. manufacturing and treatment processes employed;
RR200099m
5. chemical substances used;
6. type and quantity of wastes generated by the Site;
7. type and quantity of wastes known to be disposed of at the Site;
8. type and quantity of hazardous substances transported to andfrom the Site;
9. information related to any surface water and groundwatercontamination at the Site;
10. a copy of any permits or applications to any hazardouswaste permitting authority;
H. copies of all correspondence between you and any regulatory agenciesregarding the generation, transportation, treatment, or disposal of hazardoussubstances or wastes to or from the Site;
12. copies of any correspondence between you and any third party regarding suchsubstances or wastes and;
13. the identity of, and documents relating to, any other person whogenerated, treated, stored, transported, or disposed, or who arrangedfor the treatment, storage, disposal, or transportation of suchwastes or substances (to or from) the Site.
In addition, please provide a copy of the Project Agreement betweenCryochem, Inc., Claude W. Garber, Russel E. Garber, Kathryn N. Reigner,and Berks County Development Authority which was dated July 14, 1982.This Project Agreement is referenced in an Assignment which was recordedin the Berks County Recorder of Deed's office on July 14, 1982 in Book389, page 250*
In addition to the above information, if your company is privatelyinsured against releases of hazardous wastes or substances as a resultof the handling of such materials, please inform us of the existenceof such insurance and provide us with copies of all insurance policies.
As used herein, the term "documents" means writings (handwritten,typed or otherwise produced or reproduced) and includes, but is notlimited to, any invoices, checks, receipts, bills of lading, weightreceipts, toll receipts, correspondence, offers, contracts, agreements,deeds, leases , manifests, licenses, penni ts, bids, proposals, policiesof insurance, logs, books of original entry, minutes of meetings,memoranda, notes, calendar or diary entries, agendas, bulletins, notices,announcements, charts, maps, photographs, drawings, manuals, brochures,
AR200IOO
reports of scientific study or Investigation, schedules, price lists,telegrams, teletypes, phono-records, magnetic voice or video records,tapes, summaries, magnetic tapes, punch cards, recordings, discs, computerprintouts, or other data compilations from which information can beobtained or translated.
You are entitled to assert a claim of business confidentialitycovering all or any part of the submitted information, In the mannerdescribed in 40 C.F.R. Section 2.203(b). Information subject to a claimof business confidentiality will be made available to the public only inaccordance with the procedures set forth in 40 C.F.R. Part 2, Subpart B.Unless a business confidentiality claim Is asserted at the time therequested information Is submitted, EPA may make this information availableto the public without further notice to you.
Failure or refusal to comply with this request within the specifiedtime period Is a violation of Federal law which may result in furtherenforcement action. This Information collection request is not subjectto the Paperwork Reduction Act, 44- U.S.C. §§ 3501 - 3520.
If you have any questions concerning this matter, please contactHumane Zia at (215) 597-8214 or William C. Early, Office of RegionalCounsel at (215) 597-7265.
Sincerely,
Bruce P. Smith, ChiefHazardous WasteEnforcement Branch
Enclosure: Location Map
cc: Donald A. Lazarchik, P.E.DirectorPennsylvania Department of Environmental ResourcesBureau of Solid Waste 'Management
Mr. Harold L. Nettles, PresidentCryochem, Inc.RD 2Boyertown, PA 19512
Re: The Cryochem, Inc. Facility
Dear Mr. Nettles:
The U.S. Environmental Protection Agency (EPA) is seeking informationconcerning a release, or the threat of a release, of hazardous substances intothe environment. Pursuant to the authority of Section 3007(a) of the ResourceConservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6927(a), and Section104(e) of the Comprehensive Environmental Response, Compensation, and LiabilityAct of 1980 ("CERCLA"), 42 U.S.C. Section 9604(e), your company is requestedto furnish all information and documents in its possession, custody or control,or in the possession, custody or control of any of its officers, employees oragents which concern, refer, or relate to hazardous substances as defined bySection 101(14) of CERCLA, 42 U.S.C. Section 9601(14), particularly hazardoussubstances which were transported to, stored, treated, or disposed of at theproperty currently leased by Cryochem, Inc. on State Route 562, Boyertown,Pennsylvania (as depicted on the enclosed "Location Map").
All information and documents requested are due to the address listedbelow within ten (10) calendar days of receipt of this letter.
The response should include, but not be limited to, information anddocumentation concerning:
1. your years of ownership and/or operation of the Cryochem, Inc.facility (Site);
2. type of operations on the Site;
3. areas of the Site utilized;
4. manufacturing and treatment processes employed;
1R200I03
5. chemical substances used;
6. type and quantity of wastes generated by the Site;
7. type and quantity of wastes known to be disposed of at the Site;
8* type and quantity of hazardous substances transported to andfrom the Site;
9. information related to any surface water and groundwatercontamination at the Site;
10* a copy of any permits or applications to any hazardouswaste permitting authority;
11. copies of all correspondence between you and any regulatory agenciesregarding the generation, transportation, treatment, or disposal of hazardoussubstances or wastes to or from the Site;
12. copies of any correspondence between you and any third party regarding suchsubstances or wastes and;
13. the identity of, and documents relating to, any other person whoenerated, treated, stored, transported, or disposed, or who arrangedr the treatment, storage, disposal, or transportation of suchastes or substances (to or from) the Site.
In addition, please provide a copy of the Project Agreement betweenCryochem, Inc., Claude W. Garber, Russel E. Garber, Kathryn N. Reigner,and Berks County Development Authority which was dated July 14, 1982.This Project Agreement is referenced in an Assignment which was recordedin the Berks County Recorder of Deed's office on July 14, 1982 in Book389, page 250.
In addition to the above information, if your company is privatelyinsured against releases of hazardous wastes or substances as a resultof the handling of such materials, please inform us of the existenceof such insurance and provide us with copies of all insurance policies.
As used herein, the term "documents" means writings (handwritten,typed or otherwise produced or reproduced) and includes, but is notlimited to, any invoices, checks, receipts, bills of lading^ weightreceipts, toll receipts, correspondence, offers, contracts, agreements,deeds, leases, manifests, licenses, permits, bids, proposals, policiesof insurance, logs, books of original entry, minutes of meetings,memoranda, notes, calendar or diary entries, agendas, bulletins, notices,announcements, charts, maps, photographs, drawings, manuals, brochures,
flR200IOIt
reports of scientific study or investigation, schedules, price lists,telegrams, teletypes, phono-records, magnetic voice or video records,tapes, summaries, magnetic tapes, punch cards, recordings, discs, computerprintouts, or other data compilations from which information can beobtained or translated.
You are entitled to assert a claim of business confidentialitycovering all or any part of the submitted information, in the mannerdescribed in 40 C.F.R. Section 2.203(b). Information subject to a claimof business confidentiality will be made available to the public only inaccordance with the procedures set forth in 40 C.F.R. Part 2, Subpart B.Unless a business confidentiality claim is asserted at the time therequested information is submitted, EPA may make this information availableto the public without further notice to you.
Failure or refusal to comply with this request within the specifiedtime period is a violation, of Federal law which may result in furtherenforcement action. This information collection request is not subjectto the Paperwork Reduction Act, 44 U.S.C. §§ 3501 - 3520.
Please send the required information to:
Ms. Humane Zia, Compliance OfficerU.S. Environmental Protection Agency, Region IIICERCLA Remedial Enforcement Section (3RW12)841 Chestnut Building, 6th FloorPhiladelphia, PA 19107
If you have any questions concerning this matter, please contactHumane Zia at (215) 597-8214 or William C. Early, Office of RegionalCounsel at (215) 597-7265.
Sincerely,
Bruce P. Smith, ChiefHazardous WasteEnforcement Branch
Enclosure: Location Map
cc: Donald A. Lazarchik, P.E.DirectorPennsylvania Department of Environmental ResourcesBureau of Solid Waste Management
JUL 3 01986
fiR200105
N / /' \/.,-/: / I".
/ &•',' "* y ' ;X-'-'-T/ /".:-./yV'> >
' X L t-'I *!
(SITE LOCATION
SOURCE:(7.5 MINUTE SERIES) uses BOYERTOWN,PA. QUAD.SITE LOCATION MAP FIGURE I
IMUSCXDRPCDRATON
A Halliburton Company
CRYOCHEM, BOYERTOWN, PA.SCALE 1:24000
r
.
-hem Inc*>ox 74A,Boyertown, PA 19512 Area Code 215 eas-ssai
July 25, 1986
Office of Emergency & Remedial Response (WH-54&E)Environmental Protection Agency401 M Street S.W.Washington, DC 20460
Attn: Russell H. Wyer, DirectorHazardous Site Control Div.{Attn: NPL Staff)
Gentlemen:
In July 1982, it was determined that there had been a spillage of 1,1,1Trichloroethane (Chlorathane NU as supplied byDow Chemical) in the area ofthe internal catch basin ill (see exhibits //I & #2). The spillage was from a 55gal. drum which was close by. At that time we were using Chlorathane N.U. inour Quality Control procedure to detect cracks in welds. This procedure involvescovering the weld with a red oil base penetrant, allowing a dwell time then wipingoff the excess with a cloth dampened with N.U. A white developer is sprayedover the area to allow any penetrant in the defect to leech out and be seen on thesurface* We were using Chlorathane NU because it was supposed to be a safetysolvent replacing Carbon Tetra Chloride. Except for the accidental spillage therenever was, nor was there reason fora a continual drainage of 1,1,1 Trichloroethaneinto the nearby surface waters.
To correct any misunderstanding that our name might imply, we are manufacturersof steel and alloy fabricated products. We do not now and never did manufacture,use large quantities of or process chemicals in our operation here. From about 1970to 1981, we did use the Chlorothane NU which evaporated in use. Total usage amountedtq^2 to 3 drums per year.
Upon being notified that we were in violation, we immediately stopped using1,1,1 Trichloroethane and went to an approved petroleum base solvent. Catch basinNo. 1 was isolated from further run off. The catch basin was cleaned out and thismaterial was disposed of in an approved manner for hazardous materials/ (Exhibit 5)
It should be pointed out that at no time was there any "dumping" of 1,1,1Trichloroethane.' The possibility for the spillage we had to find it's way into theground is remote and minimal. The spillage occured on a concrete floor, into aconcrete catch basin flowing through a closed pipe system with water to an openstream,
In cooperation with DER in Norristown, we embarked on a monitoring andtesting program as follows:
AR200I07
M
Oiiice oi Emergency & Remedial Response 3uiy 25, J986Attn: Mr. Russell H. Wyer, Director Page No. 2
Monitoring Wells //I (Upgradient) and #2 (Down gradient) were dug, utilizingthe hydrogeological service of the firm of Gilbert/Commonwealth. These wellswere sampled periodically along with the surface waters, (exhibits #3 and #4) andit is quite evident that after the initial clean up there has been a dramaticimprovement of the surface water shich was effected to the point where it canbe said that the- problem is corrected.
It must be noted within the past 1-1/2 to 2 years that EPA expendedconsiderable monies at a site about 400 yards upgradient of the CryoChem property,removing an undisclosed number of barrels of undetermined materials that wereburied. There is reason to believe that what was removed may be only the tip ofthe iceberg for it's suspected that many barrels were buried over the past 20-25years and have completely deteriorated. Is it not reasonable to conclude that thecontamination of the underground water came from this site?
We are having a difficult time understanding why we were included in theFederal Register for Super Fund attention. We are prepared to continue testingthe water sources on our property on a regular and reasonable basis. However, wefeel strongly that the problem we had was corrected and that we should be removedfrom the Federal Register as a site requiring Super Fund attention.
We feel that it is imperative that a meeting be arranged as soon as possible sothat this unfavorable image can be rectified.
Since we have just received the packet on the Hazard Ranking System, we willhave further comments prior to the August 11, 1986 deadline.
Very truly yours,
CRYOCHEM, INC.
Anthony T. CalzolaioVice President
ATCrcleEnclosures
AR200I08
Vrfj;-"v "'•ifirf- f '*••- - •;7i.T. £V- v *•-. V"' v ;-- . '
COMMONWEALTH OI PENNSYLVANIAniTARTMF.NT OF ENVIRONMENTAL R
1875 New Hope StreetNorristown, PA 19401
215 631-2413
j-jl-- > . 1982
ctCryc Cie;., IncP/0. Box 32Boyertown, PA
Dear 1-ir. Calzolaio:
Re: Industrial "WasteEarl Township, Berks County
As you are aware, the Department of Environmental Resources lias systematicallybeen conducting a groundwater contamination investigation in the vicinity ofVJonnan, Earl Township, and in adjacent Douglass Township. Vte have, over thepast several months, collected well water sanples from a nonber of residents andbusinesses in this locality. CXir laboratory analyses have shown thecontaminants to be organic chemical compounds belonging to a class of aliphatichalogenated hydrocarbons.
, the chemical roost canmonly detected in various concentrationswell water supplies is 1,1,1 - trichloroethane. Concentrations and
locations of 1,1,1 - TCE detected on your property are as follows:
Location 1,1,1 - TCE Concentration
Surface water drainage ditch north 1 ,500 ug/1of shop building
Shop drain in building 32,000 ug/1
VSan-hole basin at shop door south 6,900 ug/1of shop building
Center discharge pipe to spring- fed 5,500 ug/1stream by fish pond
6" drain pipe to spring-fed stream 60 ug/1by fish pond
24" spring-fed pipe to spring- fed 0 ug/1stream by fisn pond
Spring- fed stream waterfall by . 270 ug/1roadway
AR200! 10
Mr. Anthony T. CalzolaioJuly 6, 1982
We determined that the source of this contaminant Is associated with your use ofthe 1 ,1 ,1 « tnrichloroethane, and its ultimate discharge -from the in-plantdrainage network to the unnamed tributary of the Manatawny Creek,
Ihe discharge of industrial wastes to the waters of the Gcsnmonwealth without apermit from tfhe Department of Environmental Resources is a violation of theClean Streams Law, the Act of June 22, 1937, P.L. 1987, as amended (35 P.S.§691.1 et seq), and is subject to the penalties provided therein. Each day ofcontinued violations constitutes a separate offense under this law.
Our inspections an your plant revealed the existence of a concrete catch basinlocated approximately 10 feet from the 1 ,1 ,1 - TCE storage area, ito containmentof the drum is provided. Water sampled from the catch basin was found tocontain 32,000 ug/1 of 1 ,1,1 - trichloroethane, an extremely and potentiallydangerous concentration. Ihe basin discharge water flows to a stormwaterculvert and thence to discharge to an unnamed tributary of the Manatawny Creek.
In previous conversations, you indicated willingness to discontinue use of thischemical. While we believe this action will eliminate the source of thecontaminant, we are still faced with the situation of existing groundwater andsurface water contamination. In addition to removing the source, we recommendcleaning the contents of the catch basin and disposing of same in an acceptablemanner.
It will be necessary to arrange a meeting for the purposes of establishing agroundwater monitoring and possible clean-up and recovery program. Such aprogram would incorporate the use of existing and/or newly developed monitoringwells. Data provided by the program will be evaluated for the purposes ofdetermining -mat. additional actions, if any, will be needed.
in-plant drainage system must be eliminated as a source of industrial wastedischarge to waters of the Commonwealth. Otherwise, an application for permitwill have to be submitted to this office.
We strongly reconraend that you retain the services of a consultant versed inindustrial waste processes and groundwater contamination clean-up. We hope tohear from you shortly in regards to a mutually convenient date to hold ameeting. Should you have any questions on this correspondence, please call me.
Very: truly yours,
ROBERT DAY-LEWISHydrogeologistcc: Division of Water Quality - Groundwater Section
Mr. Anthony CalzolaioCryOChem, Inc.R. D. 2, Box 562Boyertown, Pennsylvania 19512
Re: G/C Project No. 04-5119-000
Dear Tony:
I have enclosed three (3) copies of the 1,1,1 trichloroethanesummary which I have updated to include results from the23 September 1985 sampling effort.
These results show a significant improvement in downgradient1,1,1 trichloroethane concentrations (MW-2 and production well).Increases in the spring fed pipe 1,1,1 TCE values are not ofconcern. It's my opinion that all these data are below levelsof concern, but seasonal effects may result in increases tolevels we have seen previously.
I-think that quarterly sampling should be continued since the PADER will eventually request these data.
Sincerely,
MX?Willard A. Wade, III, P.E,Project Manager
WAW:ldfAttachments
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em nc. 19512 * Area Code 215 €89-9532
-October 23,1985
of "Environmental Resources1875 -Few Hope fitreet -Korrietown,Pa. 19401
Attn: Mr. Walter E. Stanley
Gentlemen :
Ref : Continuation of HydrogeologicReport at CryoChem Inc.
Enclosed please find (2) copies of the recently completedevaluation of 1,1,1, Trichlorethane concentrations in surface andsubsurface waters. As you can see this testing shows a continuingimprcvment in concentrations of 1,1,1, Trichlorethane.
Please advise what further action you may require.
Very truly yoursCRYOCHEM INC.
EnclosuresATC:cle
>'
^
11»:1986 , ... . .
Mr. Anthony CalzolaioCryoChem, Inc..R.D. *2, Box 74Afcoyertown. PA 19512
Bear Mr* Calzolaio:
Re: Groundwater SamplingG/C File O4-5119-000
Attached please find three (3) copies of the laboratory analyses of1, 1, 1 trichloroethane from the various sampling locations at theCryoChem site.. The samples were obtained on July 3, 1986.
Review of the values with previously obtained data indicates that theconcentrations obtained from the July 3, 1986 sampling are generally thesame as concentrations obtained over the past several years. Note, however,that the concentration of the downgradlent monitoring well is the lowestvalue obtained since the start of sampling.
Should you have any questions, please feel free to call. We have notreceived a purchase order as of this writing.
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flR200M8
R-5S5-5-5-42A HAZARD RANKING SYSTEM FOR
PREPARED UNDER
TDD NO. F3-8505-Q2EPA NO. PA-866
CONTRACT NO. 68-01-6699
FOR THE
HAZARDOUS SHE CONTROL DIVISION. ENVHIONMENTALr PROTECTION AGENCY
JUNE 26,1985
NUS CORPORATIONSUPERFUND DIVISION
SUBMITTED BY>7 Ss REVIEWED BY -i X/ APPROVED B
E0MUND REARJDON B tfCE R. PLUT/C GARTH GLENNENGINEER BJOLOGIST/ AIANAGER, FIT III
/UBUC HEALTH SPEC.E:NV.
'£ -'
Facility Namer CryoChem, Inc.
Location: Worman, Pennsylvania
^EPA Region: III
PersooCs) in Cferge of the- Facility: Anthony T. Calzolalo,Vice President2nd Secretary
Name of Reviewec; Bruce R. PIuta,NOS Dates 3une 2$, 1985Laura Boornazian, EPA
General Description of the Facility:
. ' CryoChenv Inc. is a metals fabrication facility that, in the past, used 'thesolvent -2,1,1-trlchloroethane (1,1,1-TCE) (trade name Chiorothane NU) toclean up the finished metal pieces. This material was collected In a shop drainand then discharged into open surface drainage. FIT IH sample results, as well' ^ ^results, have identified and confirmed elevated levels of 1,1,1-TCE, as well asother -solvent-type-chlerinatc:d-a!kanes--and-alkenes- in locally used- wells andsurfacer-watersr— - - -- -- . . . - - : - . "
Scores* SM = 28.55 (S
25.00i:':"V\'-'1S. •-• {fl'.-fe.'l'C^ f ^ ^
FIGURE 1
HRS COVER SHEET
: AR200I20
•«
*
Rating Factoc.
tli Observed Release
If observed release
Ground Water 3ou:e Work Sheet
Assigned Value Muttl-(Ci'rcic One) , pfler
o (45) 1
Score
(j£
a«. =ef.Score !Sec:*on|
<$ 3.t
Is given a score of <3. proceed to line f7).If o&servetf rereai* 1* given a score of 0. proceed to tine fjfl
(21 Rout* Characteristic* " • 3 2Deem to Aquifer of . . 0 t 2 3 2 aConcernNet Pr«<3p<U«o« . 0 t Z 3 1 3P«fm«a&iiHy cMh* 0 1 2 3 1 3UA£&£ufaMec£ Zone*Physic** Sttte .
2 tfHne J1J Is 45; muttlpjy QJ » [3 x 13ffflne QJ i* 0. mvftfpfy (2«Q1»GJ»Q1.
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15
20
12
*"
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'** >••::XFIGURE 12
DIRECT CONTACT WORK SHEET
"*
June 28, 19S2
DOCUMENTATION RECORDSFOR
HAZARD RANKINGTjSYSTEKf
INSTRUCTIONS? The purpose of these records is to provide a convenient way toprepare an auditable record of the data, and documentation used to apply theHazard Ranking System to « given facility. As briefly as possible, summarize theinformation you used to assign the score for each factor (e*£.*Vaste. quantityeepj&IstjZBa drums plus SOO cubic yards of sludges"). The source of informationshook! be provided fear each entry and should be a bibliographic-type reference thatwill make the document and for a given point easier to find. Include the locationof the document and consider «pperxfing a copy of the relevant pagcfe) for ease inreview*
LOCATION Wbcman, Earl Township, Berks County, Pennsylvania
1,1-dichioroethene Greenley Well W-9 60.0 ppb1,1-dichloroethane Greenley Well W-9 15*0 ppb1,1,1-trichloroethane Greenley Well * W-9 560.0 ppbTCE Greenley Well W-9 14.0 ppbPCE DiCindio Well W-12 2.6 ppb
*NOTE: Sample numbers are from FIT HI samples taken December if 1933.#Reference no. 2 (sample data summary)
Rationale for attributing the contaminants to the facility*
Compounds detected in FIT IS sample results (sampled December 1, 1983) oflocal residences have been detected on site as well; however, these compoundswere not detected in outlying monitoring and drinking wells (sample nos. W-6,'y Tigifr lOig CdriOmfrGreenley well at 560*0 ppb and the CryoChem shop drain at 32,000 ppb. (Theshop-d i>5a pIe-was-coliectedby-Pertnsylva EnvironmentalResoorce5-(PA* DER) personnel on 3une23r 19&X}~- -
Also detected in the- orwite production well and nearby home wells were thecompounds 1,1-dichloroethene and 1,1-dichloroethane. Both of these aredegradatlonal (transformational} products of 1,1,1-trichloroethane. Again,these compounds were detected in locally situated wells, but not in outlyingwells* . * .- . *;.; "
»•A value of 45 has been assigned*.. .
. . .Reference nos.' Z'fsftmple data summary, and section 1.3), 3, and 11 (letterdated October 12,1982}
2ROUTECHARACreRISnCS .w*'
Depth to Aquifer of Concern
Name/description of aquiferfe) of conoernt* " •
Monitoring, wells on and near the site, and the Boyertown" geologic quadranglemap^_ ahowr .the stud)?» area vto be underlainr. by- :Cambnian-aged. HacoV ton.Formation gray <juartzite and Carnbrian- aged crystalline limestone withquartz seams of the Leithsville Formation. Water-bearing zones, indicativeof fracture controlled bedrock flow, are noted In well boring logs (reference
_.nos*. 9. an.d_.10)_ o{ both ormatiQns*, Water .levels in the monitoring wells
indicate that the site/study area is underlain by a single, transforma-tional/ fracture-controlled bedrock aquifer of unknown thickness.According to Robert Day-Lewis, PA DER Norristown Office, the bestavailable information indicates that groundwater flow between theHardyston and Leithsville vould be through fractures and flow channels.
References 2 (section 3.3 and 3.4), 8* 9, 10, 13, 14, and 15
Depth(s) from the ground surface to the highest seasonal level of the saturated zone(water tsbtdCs)} of the aquifer of concerns
N/A ' ' ..--..-..--•_..„...„__•. ...
Depth from the ground surface to the lowest point of waste disposal/storages
N/A ^ _._ : " . * •d . - ' - • . . . •
M<aanar»u ocsea»ralpcecip5t m(ttt
Mcoa annual lake or scxxnxl ev ors cn (list manths for
Net pcw pststloa (stfctract fee above figures
N/A ' '"*
PermegbiHty of Unsatucatea Zone
Soiltyp in msatura£ed:2QDe£.
N/A
AR20QI29
Permeability associated soil types
N/A
Physical State .
Physical state of substances at time of disposal (or at present time for generated gases):
N/A . -
* * «•
3 COOTAINMENT ;
Containment
MethodCs) of waste or leochate containment evaluated?
Total quantity of hazardous sxftstanoes at the facility, excluding those with a containmentoi 0 (Girt * n sooaJble estimate even if qiantity is above maximum):_____'• -.,-
Waste disposal did occur at the site; however, waste quantities are unknown.
Basis of estimating and/or computing waste quantity:
- There is no documented evidence available to substantiate quantities of wastedisposed*
For an unknown waste quantity, a value of 1 was assigned.• • * . _ . " - f = •_ •
5 TARGETS • »* •• .*. . i- %'
Ground* -ater Use
lbe(s) of »qa£fer<s} of,concern within a3-cnile radius of the facility.'*, . «-."-t & .---**« cS ^ -fe iS?*". 1 '* ^ -x* ••-*•.y. "\ «-H- .«t..x |MF* ?-A**,*- -ji ** -*5i** *>'«'-.''•<1? *•.•••• •'•••"2 Drinking, water, witft no municipal supply currently available.
A value of 3 was assigned
Refereiice nos* 2 (section 3.1) and 6
Distance to Nearest Well ,
Location of nearest well drawing from aquifer of concern oc occupied building notserved by a public water supply:
The Greenley residence. The residence is on the second property to the eastof the site property, along Route 562.
Reference no. 3 .
Distance to above welt or building:
The Greenley veil stowed contamination; thereforeTthe well is considered onsite. .... .,,;,,
Population Served by Ground Vater Wells Vithin a 3-Kile Radius
Identified water-supply welKsJ drawing from aquifeKs) of concern within a 3-mileradius and populations served by each:
She area is dependent on groundwater for domestic supplies. There areapproximately 290 homes or ,1*102 people living within 3 miles of the siteand situated on either, the Bardyston or the Leithsville Formations.
290 residences x 3.8 persons/residence ** 1/102 persons
References 2 (section 3.1* house count from the (J.S.G.S. Boyertown Quad)/6/ and 8
Computation of land area irrigated by supply well(s) dtawing from aquifeKs) of concernwithin • 5-mile radhis, and conversion to population (1 people peracreS
No known use of groundwater for land irrigation.
Total population served by giouodwAter within a 3-mile radiust»*.Approximately' 1A02 ^
Con minants detected in surface water at the facttty ~
Cnmnound * Location Sample No, ,H«fhest Concentration
» W-* 2.9 ppb* " W-4 2.1 ppb* W-4 330.0 ppb
* Sample taken from dScterge ol drainage pipe that" passes through. HieTCryoChem fafaricatioa building.
Reference no* 2 (sample data summary)
Rationale f or *ttrSxrtin£ the contstmnants to the
This i$ the original point of discharge from the shop drain. This sampleshewed* sigfilKcantly hiS**6**
the upstream sample (that sample taken above the shop drain). This dischargepoint rf?lf a~* *frTtt-ffrv"t «»ntfT a trlhutacy tQ-Iron tonfr Cr A:,fwhkJi enters theManatawny CreeJA — -- - : • -« -. ,. -"- -
analysli also detected- 1,1-dichloroethene and 1,1-dichloroethane atlow levels ir* -fee <£raln system discharge? however, these compounds were notdetected above the drain system*
A value of *5 was
Reference nos. 2 (section 1.3, 2-5r and maps), $, and 1 i (letter dated
IOUTE CHRRACTERISTICS* '- *. ,Tity Slope and Xhtervenlng Terrain
ge slope of facility in percenti
'A
iption of nearest downslope surface watert
lm, ..../MM J / ?- >
flR200!33 ' •
N/A•
s fa Fy touted either totally or partially in solace water?-.
N/A
b the facility completely surrounded by areas ol higher elevation?
• N/A
1-Year 2»-Hour RalnfaU in Inches
Phy«lcal-St«te-ei-Wiagte—
3 CONTAiNMENT
Containment .._,... . .-—MethocKs) of wvste or leachate containment evaluated:
Computation of land area irrigated by above-cited intakeCs) and conversion to population
(1.5 people per acre):
N/A ___ _ _ _ ____ _______ _•''„„.___„„.______
Totsd population served:
There are no known surface water intakes within 3 miles downstream of thesite.
* A value of 0 was assigned*
Name/description: of nearest of abore water bodies:* . *The unnamed tributary situated on the site property leads to Ironstone Creek<2 miles downstream of the site), and then to Manatawny Creek (3 milesdownstream of the site)*
Distance to above-cited intakes* measured 'in stream miles.
N/A , - . ""..._ . . ,_V- / . r ' -.; \ " " - •
A value of O wss* assigned .T**"" :''" " - " "
AIR ROUTE
i OBSERVED RELEASE
Contaminants detected:
-None
Date and location of detection cl contaminants:
• N/A
• . *Kethods used to detect the contaminants:
HNU photo-ionizer scan, December 1,. 19&3.
Ratioa&ie.fbc attributin the. contaminants to the sites
Distance to commercial/industrial area, if 1 mile or less:
N/A*
Distance to national or state park, forest, or wildlife reserve, if 2 miles or less:•
N/A
Distance to resKfartiaLacea, i£ 2. miles oc less:
ferisgrfctdtosHaad-Inrpro if 1-mite-or less; -
N/A - =" - " 7 ""
Distance to prime agricultural land in production within post 5 years, if 2 miles or less:
N/A* O >• - =, i f-
Is a historic or landmark site (National Register or Historic Places and NationalLandmarks) within the view of the she?
N/A
AR200SUO
FIRE AND EXPLOSION
1 DOCUMENTED THREAT
If either a state or local fire marshal has certified that the facility presents a significantUre or explosion threat to the public or to sensitive environments, tfocumem the certification:
Name/affiliation of fire marshal:
N/A
•Date of Certification:
N/A«r .
Comments
The site has not been certified as a fire or explosion threat, nor are there anyfield observations Which indicate that a threat exists*
- A value of 0 was assigned. • * .
-If there Is * demonstrated fire and explosion; threat based on field observations, documenttbethreat*.. r ; . v " :Inspectors reporting the threatr ' •
Distance to commercial Industrial area, if 1 mile or less;
N/A - * •"
Distance to n*tiooal or state ptrfc, forest,, or wildlife reserve, if 2 miles or less:
N/A .
1R-2OT l'4/l15-
Distance to residential area. If 2 miles or less:
N/A
Distance to agricultural land in production within past 5 years, if 1 mile or less:
N/A .
Distance to prime agricultural land in production within past 5 years, if 2 miles or less:
N/A •
Is a historic or landmark site (National Register or Historic Places and National NaturalLandmarks) within the view of the site? . .. .
N/A
-— Population Within 2-Mile Radius
™ N / A . - . . . " ' . , _ •* * • "
Number of Buildings Within a 2-Mile Radius
N/A- : - ' ' • . -
V, DIRECT CONTACT/':;;; ' ,,-.-: .
1 OBSERVED INCIDENT A"
f / -v =\ Pertinent details of incident:**?•. • v1. • ; •; : "• y •*"" * fc v' •„' -'."-', t1" No incident of direct contact exposure has ever been documented.
* , A value of 0 was assigned.
• *•' , • f^ • • •Location: ,, . .
Date.
N/A
2 ACCESSIBIUTY
Omit access by humans or animals to the hazardous substances:
A barrier to prevent vehicular access to the site is present on site; however,there are no means of preventing other entry*
A value of 3 was assigned.
.• Reference no*. 2 (site sketch and section 5.4}
jflk
3 CONTAINMEKT
Containment
Indicate whether the hazardous substance itself is accessible to direct contact:
Analysis of the shop drain discharge-sample showed •*• level* of 1,1,1-trichlofoethanceat-i 330-O- ppbw.Thi_w.dischacge..point. fr fy. into an. oa-sile. pondedbasin, which in turn discharges into an off-site tributary to Ironstone Creek.
A value of 15 was assigned.
Reference no. 2 (see sections 1.3 and 2.2, and sample data summary) .{/»& i '( fMK_j
10. Hydtogeologic profile of the CryoChem site using the. monitoring well boring logs.
11* * Pennsylvania Department of Environmental Resources, to; CfryoChem. Memo. July 8 .1 952 and October 12,
1982. (About action that needed to be taken at thesite.>
flR200ll*9
Reference No. ' Description of Reference
12. Calzolaio, Anthony, Vice President, of CryoChem, withEdmund Reardon. Teiecon. February 15, I9S5.
13. . Lewis, Robert Day, Pennsylvania Department ofEnvironmental Resources, Norristown Office, with EdmundReardon. Teiecon. May 22, 1985.
14 Pennsylvania Bureau of Topographic and Geologic Survey.Groundwater in Southeastern Pennsylvania. Water ResourcesReport Ko. 2t reprint 1973. •
Departrent_of Swironroental Resources* Office of ResourceManagement/ Bureau of Topographic and Geologic Survey.engineering Characteristics of the Rocks of Pennsylvania.Environmental Geology/ Report No. 1* 1982.
t/r -t -.//National Priorities List SiteHazardous waste site listed under theComprehensive Environmental Response. Compensation, and Liability Act of 1980{CERCLA)("Superfund"}
CRyOCHEM, INC.Vfc>rman, Pennsylvania
CryoChem, Inc., has operated a metals-fabrication facility on a19-acre site in WDnnan, Berks County, Pennsylvania, from 1962 to thepresent. The facility is composed of several production and storagebuildings and an office complex situated at the lower portion of theproperty. Hie company uses solvents to clean finished metal parts. Anyexcess solvent is collected in shop drains- Prior to 1982, the coipanyused about one 55-gallon drum of 3,1,3-trichloroethane per year for 3 or4 years and allowed the shop drain system to dischargeinto nearby surfacewaters that lead to Manatawny Creek. ^ ' —__.
In August 1981, the Pennsylvania Department of Environmental Resources(PA DER), acting on complaints of area residents- began sampling .residential wells. Analysis of nine wells downgradient of the sitedetected chlorinated solvents, including 1,1,1-trichlorethane. In June1982r PA DER detected up to 270 parts per billion (ppb) of 1,1,1-trichloro-ethane on-site in an unnamed tributary to Ironstone Creek, which isused for fishing. As a result of this discharge, PA DER notified thecompany that it was in violation of the Pennsylvania Clean Streams law.PA DER also recommended that the company discontinue the use of 1,1,1-trichloroethane, clean out the drain system, and properly dispose of all
laminated materials. The conpany conplied with the recommendations.
Since the original sampling, PA DER has extensively sampled resi-dential wells located near and mostly downgradient of the site. Concen-trations of 1,1,1-tricnloroethane generally ranged from 0 to 380 ppb, andone measured 600 ppb.
PA DER notified the affected residents of the contamination. Semecitizens have opted to buy bottled water or are filtering tap water attheir own expense. About 3,300 people are served by wells within 3 milesof the site.
U.S. Environmental Protection Agency/Remedial Response Program /} R 9 D fi I C i
' • S& * Chestnut Streets. Philadelphia. United States for fee purpose's, taring-40CFRPart300 ' : ' . " PAl9i07 /597-05K)cTO"- - : tenieBidfc
-.••-•-• Gayle Alston le on .T_PA ; practicable.
_ «« purpose of tokini*ro«odment to National Oti and 547-4216,*tordou5SubsUnce5CcnKnflCncy ^ S S s S S S ^ other actonsPtan;N*tIor«IPrioritJe5Ust SteSSSStW m to emergency conditions or VSrt-*GEHCY; Environment-1 Protection Barry Nash, Region 6, JnterFirst n Bidg.. Sn'S mf K ^ *-Agency, . - 1201 Elm Street Dallas. TX 75270. J« on 101(23}}. Remedial «ct|on tends
», _>« * - yi_i/7B7-_tn7'i -to be long term in nature «nd involvesACTION: Proposed Rulss. ————————— cffiflSU Region 7. US. EPA « onse actions wliic content ,'SUKMAKY: The Environmental Protection Library, 725 Minnesota Avenue, 'SSWT S ISSS £r-! , se ':AEencyrEPAw} is Proposing the fifth ' Kansas City. KS 66101, 913/23S-2828 l O aection 101[24JJ. Cnteria forkte to the NitloMl Priorities list Dolores Eddy. Region 8, U£. EPA - 1" p lt c f faftfeiJ?rNPL"). Tliis update contains 45 sites, library, 999 18& Street, Suite 1300, "E-TS? Rank™S System rHRS).The NPL Is Appendix B to tfce National ~ . Denver, CO 80202-2413, 303/293-1444 whttfc A promifeated u Appcx^x AOil and HaSrdous Substances . ' Jean Circiello, Region 9. U£. EPA oftheNCP[47FR31219,Iulyl6,1862).Contingency Plan ["NCFH. wHch EPA Library, Sth Floor, 215 Fremont Street, Section 105(8JCB} of CERCLA requirespromulgated pursuant to section 105 of San Francisco, CA 94105. 415/974- that the statutory criteria be used to ,
-the Comprehensive Environmental . '^ . prepare ta list of national priorities - "Response, Compensation, and Liability loan Shafer. Region 10. U.S. EPA. llth among the Soiown releases or threatenedAct of 1980 f "CERCLA") and Executive Floor, 1200 6th Avenue. Mail Stop 525, releases.throughout the United States,Order 12316 CERCLA requires that the Seattle. \VA 98101, 206/442-4903 and that to the extent practicable, atNPL be revised at least annually. FOR FURTHER INFORMATION CONTACT: feast 400 sites be designatedToday's notice proposes the fifth major Trudi J. Fancher, Hazardous Site Control individually. CERCLA requires that thisrevision to the NPL, Division. Office of Emergency and National Priorities list ("NPL") beTfe--* _,!«;« «r- bpJno uronoaed Remedial Response (WH-54SEJ. included as part of the NCP. Today, In
Environmental Protection Agency. 401 M this notice, EPA b proposing to add 45Stwet S.W.. Wastoglon, Sfc. 20450, « es to the NPL. brni ng the total .
.hazardous substances, as well as SUPPISMEKTARY INFOR TIOH: g regu} ^ a ^ OTL of 533Vjllutents or contaminants which may -Table of Cao!teias . fa separate notice today, EPA isl to& to ftL ' tlntroducticn, promulgatm| 170 sites, resulting in adanger to the public health or welfare. ,-. of ^ ^ L Qf703 5UfiS T1|e total number"" 5° ,_! Provides me pubif c Y 111 11 HI. NPL Update Process and Schedule. • of Hnal and proposed NPL sites is nowopportunity to comment on placing these jv. EiigibUity. - 888. EPA is proposing to include on the45 aites on the NPL. - V. Contents of the Proposed Fifth NPL • j aites at whicit there are orfeaveDATE Comments may be submitted on . P f - r _ , . been releases of threatened releases ofor before August 11. 1986. L Regu la torj- Impact Aiialysis hazardous substances, orof "ponutantsADDRESSES: Comments may be mailed VIL Regulator Flexxb.bty Act Analyse . JSSSiiaiit.." The discussion belowto Rusael H. Wyer, Director. Hazardous L Introduction s may refer to "releases or threatenedSite Control Division [Attn: NPL Staff). Pursuant to section 105 of the releases" simply as -releases " . -Office of Emergency and Remedial Comprehensive Environmental •'facilities," or "sites." ' - . ' " ' •Response (WH-B48EJ, Environmental Response, Compensation, and Liability this Federal Renter notice proposingProtection Agency. 401 M Street. SW.. * Acl of 198a 42 U.S.C. 9601-3557 45 sites to die NPL opens the formal 60-Washington, DC 20460. {"CERCLA" or "the Act") and Executive day public comment period- Comme'ntsAddresses for the Headquarters and Order 12316 [46 FR 42237, August 20, may be mailed to Russel H. Wyer.
Regional dockets are provided below. -3 1 &e Environmental Protection Director. Hazardous Site Control _ -The contents of these dockets are Agency ("EPA" or "the Agency1*} Division [Atto: NPL Staff], Office ofdescribed in Section I of the . promulgated the revised National Emergency and Remedial ResponseSupplementary informatsoru Contingency Plan ("NCP"}, 40 CFR Part (WH-S48EJ. Environmental ProtectionDenise Sines, Headquarters. US. EPA 300, on July 16, 19S2 (47 FR 31180). EPA Agency. 401 M Street. SW-, Washington,CERCLA Docket Office. Waterside promulgated further revisions to the D.C 20460. The Headquarters publicMall, Subbasement, 401 M Street NCP on September 16, 1985 (50 FR docket for the fifth update to the NPLS,W- Washington DC 20460, 202/382- . 37624) and November 20, 1985 (50 FR wffl contain: Hazard Ranking System3046 47912). These amendments to the NCP {HRS} score sheets for each proposed
Peg Nelson, Region 1. US. EPA Library. implement the responsibilities and site; a Documentation Record lor eachRoom E121. John F. Kennedy Federal authorities created by CERCLA to site describing the information used toBtdg,, Boston. MA 02203. 617/223-579, respond to releases and threatened compute the scares; and a list of
Carole Petersen. Region 2. Site releases of hazardous substances. document references. The HeadquartersInvestigation & Compliance Branch. 26 pollutants, or contaminants. public docket is located in EPAFederal Plaza, 7th Floor. Room 737. Section 105{8)(A) of CERCLA requires Headquarters. Waterside MaUNew York. NY 10278. 212/264-8677 that the NCP include criteria for f 8 1??1 401 M Street SW"/^
*- V/ /T . ~, --A-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREGION lit
Mr* Harold L. Nettles, PresidentCryochem, Inc.RD 2Boyertown, PA 19512
Dear Mr. Nettles:
On May 20, 1986, The Environmental Protection Agency Is announcingproposal of the 5th update to the National Priorities List (NPL). TheNPL is appendix B to the National Oil and Hazardous Substances ContingencyPlan (NCP), which EPA promulgated pursuant to section 105 of theComprehensive Environmental Response, Compensation, and Liability Act of1980 (CERCLA) and Executive Order 12316. This letter is to inform youthat the Cryochem, Inc. site will be among those proposed on this update.
In approximately 2 weeks following this verbal announcement, thelist of proposed sites will be published in the Federal Register. Forthe 60 days following this notice, a public comment period is opened.During this period, you have an opportunity to submit written commentsand data relating to the scoring. The comments should be addressed toRussel H. Wyer, Director, Hazardous Site Control Division (Attn: NPLStaff), Office of Emergency and Remedial Response (WH-548E), EnvironmentalProtection Agency, 401 M Street, SW, Washington, D.C. 20460.
The EPA Regional or Headquarters public dockets may also be reviewedafter publication in the Federal Register. The Regional docket willcontain the Hazard Ranking System (HRS) score sheets, documentationrecords, and supporting background information used to calculate the HRSscore. A written request to the Region should be the ordinary procedurefor obtaining copies of any of these documents. Requests should bedirected to Diane McCreary, (215-597-7904) Region III, U.S. EPA Library,841 Chestnut Building, Philadelphia, PA 19107. Requests for backgrounddocuments should be directed to the Freedom of Information Officer at thesame address.
Sincerely,
L-^pVHarold G. Byer, ChiefgjLte investigation & Support Section
HAY 231986 RR200'53EXHIBIT
COMMENTS ON THE HRS DOCUMENTATION CONCERNING LISTINGOF CRYOCHEM. INC. - WQRMAN, PAAS A PROPOSED SITE ON THENATIONAL PRIORITIES LIST
UPDATE #5FEDERAL REGISTER, 10 JUNE 1986, p 21099 et seq
Comment No, 1: Page 1 of Hazard Rating Sheet (HRS) Document
In paragraph #1, the summary states: "Any excess solvent is collected in shop
drains",
In fact, all solvent applied to metal surfaces evaporates. The contamination in&
the metal shop drain, concrete sump, and concrete discharge pipe was caused by a 3
localized spill of an applicator container. Contaminated sediments in this I i-
enclosed drain system, which discharges to an un-named tributary of Ironstone *~
Creek were removed. The concrete drain line, sump and discharge line were
thoroughly cleaned. Additionally, the shop drain sump outlet was sealed to
preclude any spills from discharging to surface water.
Comments #2: Since the source of contamination of surface waters was removed
and since no 1,1,1 trichloroethane has been used since 1982 CryoChem, Inc. is no
longer a source of contamination in the local area. This contention is sup-
ported by monitoring well data showing 1,1,1 TCE at values less than 2 ug/1.
The continued presence of I,l»l TCE at low levels in surface waters and at
higher values in CryoChem's much deeper water supply well indicate that other
sources are contributing to aquifier contamination. It is also important to
note that the un-named tributary, which still shows 1,1,1 TCE contamination, 20>>ug/1, originates from a spring upgradient from CyroChem's fabrication shops.
Comment #3: Item #4 on the HRS Groundwater Route Work Sheet
How can 1,1,1 trichloroethane, which is neither carcinogenic nor potentially
carcinogenic, rate a toxicity/persistence value = 15, which is the second
highest value on the worksheet scale? With an MCL of 0.20 mg/1, the second
highest MCL for 8 VOC's, it would seem that the 1.1,1 TCE toxicity/persistence
value should be 9 or 12 rather than 15.
AR200155
Additional Comments^
1, CyroChem's water supply well is undoubtedly the largest point of use for
local groundwater because it serves ______ people while other users
are primarily residential. It is probably distorting the groundwater
regime and drawing 1,1,1 TCE to this extraction point which would explain
the high values of 1,1,1 TCE around the CryoChem property.
2, The Straube residence, next door to CryoChem, was formerly the site of a
woodwork!ng/refinishing business and had 1,1,1 TCE values much higher
(800-1100 ug/1) than on the CryoChem property when the owner allowed
sampling in 1983 and 1984.
3. The PA DER states that drums of hazardous waste removed from the&£./*$&&*4rU~3$S site were intact and not leaking. Neighboring wells were not
contaminated. However, since there has been no cooperation by the site
owner, it is unknown if drums containing 1,1,1 TCE could have been buried
on-site and may now be leaking.
•HR200I56
BERKS TITLEINSURANCE COMPANY
* READING. PENNSYLVANIA
CLAUDS W. GARBER. RUSSEL E. GARBER and KATHRYN N. REIGNER
HASEK____BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY and/or CRYOCHEM, INC. as their interKEMISES Eari andMortgagee: CLAUDE V. GARBER, RUSSEL B. GARBER and KATHRYN N. REIGNER
CONSIDERATION
TAMS Purchaser paysWATER RENT
HRE INSURANCE
RENT
ACKNOWLEDGMENT OF DEED
LESS CREDITS DUE PURCHASER
FUND DUE SELLER
725,000
No appt.
7*£-roal>t/29&Q_
Pfott
00
V£>C\
*%->
>?
SETTLEMENT WITH SELLER$.; re TRANSFER TAX
LOCAL TRANSFER TAX
NOTARY FEES
WATER RENTS
TAXES
Recorder of Deeds-Record Mtg. Re:
$L-,&S.'/&*.'l, - L. Jl*'£i~£>KM*fcr^ /?*?&,{ f*it Lz dt, ******tf.JsffiL - rtLL, ,.//£-.' CA^L &#*&r ~&«M>/£_«_/ 2 £A& ~<£ 4tj(**~f/ , /O jflta***/ -~" &&£,0 V V
TOTAL
FUND DUE SELLER
TOTAL CHARGES TO COMPLETE SETTLEMENT
IALANC. PAYABLE TO SELLER
&/9
9x&/?
3$t>-?v3**->&3to?P~
• -
S30&iF3c39/•><*??
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f*>e> O
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PAID ON ACCOUNT
TAXES
WATER RLNf
RENT
C /r X*t«i/ -y>-, .-- 7 . 'wf.i/gj-mz*. djb wi ; fpm '"i?
TOTAL, CREDITS DUE PURCHASER
fct> nt*'f'
ff*'»sT&o ftn
S.4'0
t>*/3Q/.«
o-
'*
>-SETTLEMENT WITH PURCHASER
FUND DUE SELLER
BERKS TITLE INS. CO.- TITLE FEESEXTRA POLICYEND. FEES -#
DRAWING PAPERS.. , _. .. . -, .*Rhoda Stoudt & BradloiBerks County Industrial DevelopmentAuthor! ty-Bal. administrative feeslonya M. Moyer-1932 school taxierks Title-tax certificationrothonotary UHlce- Kliecorder of Deeds - Securedcretary of State - Transactionsv/i - L .-,,2 Jl-tfaL. <* \**&f.*d«**i-
</ // , • "
FUND NECESSARY TO COMPLETE SETTLEMENTDEPOSITED BYi
<P~4o$95253
/oo
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f*~^
jrfvv•
9?s-?&
•
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IT, CW*»i«i«t
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%•*) .netting Lessee j obii-caaart to P*> *"*?" wnpaxi balance o£ reni due hcretxxkr, or(2V At Ibe option of Later. th» fc-*e and the terms hereby created shall derermtne and become absolute!)" void without my ngnt on the
t-atl «t Lessee IO rr.fliate thu ki*« by payment of «iy sum due or by other performance of wiy condition, terra, or covenant broken, where-upon. Lcuor thill be entitled lo mover <_tma«es for auch breach uv an amount equal to the amount of rent reserved for the bounce of the termot this leuc. to* the fur renal v.!uc of the _ud dowsed premise* for the remainder of the lease term.
to the event a! »»y default EI above sei forth in Section 14. LCMOT. or anyone acrmg on Lessor's behalf, at Leuor11 option:<•) May let aaid premise* or any part or parts thereof to «ucn person or persons» -my. in Lessor's discretion, be beet: and Lessee shall be
ItsW* for any km o{ rent (or the balance of the th«n current term. Any «uch re-entry or re-letting by Lessor under the term* hereof shallbe without prcjadK* to Letter's claim fof acrual damages, and shall under no circumiranccs, rde_u Lessee from liability for such damage*ar__ng out of tlxr arc-en ofaay of the co-tmnu, term*, and coodiriom of this lease.
(*) May proceed u a secured party -oder the prorisiooi of the Uniform Commercial Code agaiou the foods in which Lessor hu beengraxtM a seemrtry trttcreK pursuant to Sccs-m 13 (.ff) -ereof; and
(c) Uay h*« xnd otercisc any »-d *O other rights taxi/or remedies, framed or allowed landlords by any cxiiting or fotore Statute. Actof As-embly er ether taw of this am- IB cue* where a landlord seeks to enforce rights vising under * lease agreement -gainst » tenant whoKs*dcfa !«d or otherwise breached the terms of wchjeue agreement; subject, however, to all oi the rights granted or crated by any aaeaStatute, Act of At*emWy«orotherUwof Ait sate gaining for the protection and benefit of tenants; and
{-> Uay 5wve and <xem»e may 1-4. mil ot~*r rignia «ad remedies, contained ut this feue agreement, iodudtog the right* and rejocdk*rrorided Vr Swrionc 16 iad 17 h«-oC
L«*n oownanu and a nei. thac if the rent and/or any charge? reserved m this lease u rent (indudinf aH .ecderationi of reni permuuiMfvoder Ibe provuuo-. of ibii kaic) shjll rea-un ucumid five (5) day* after the tame ii required lo be paid, then and in that event. Le»or marcautc J«dx»a3t H be cntcn. -fiirat Lessee, and 1 or Uat purpote Lessee hereby authomes and empower* Leuor or any Frothonouiry, Clerkof Court or Attorney of any Court of Record lo ippcsr for and conies* judgment acainf t Lcuce and threes that Leuor may commence «n actionpursuant *» Ptnfu l*_nU Rules o£ C«i Procsdufc No. 2950 et icq for Uw -Etovery from Leuec of all rent hereunder (tnetudini: ail acceiert-tknu of rent penmuible andcr the provuiona o£ this lease) and/or for all diaries roerved hercundcr as rent, u well as for interest and COSHand Attorney » comnuiboa. for which auchotizatioa to confesi jodjmenl. thn lease, or a true and correct copy thereof, shall be sufficient warrant.Svch udgnxct ray be ccofeued ifxb-tt Leu«e for the amount of rent in arrears (including all accelerarioni of rent permissible under theprovuigns of tliia kue) and/or for all dai_~s reserved hereunder u rent, as well as for interest and costs; together with an attorney'scotmniutoci of five percent (S9r) «F the fall unoont of lessor's cUtm againtt Leuee, Neither the rifbi to uunniie an Mtwa pursuant toP<nni>lvamx Riles of Gril Procedure No. 2950 ct seq, DOT the authonty to confess judfment frantcd herein shall be exhausted b>- one or moredcrcttct thereof, but •uccc&siw eoaap__Bu may be filed and Mcceutve judpneuu may be entered for the a for (described turns five days or more»f ICT they BMCOIMC A*c ac well aa after the cxyinuion of t_* orifinat term aad/or dorioc or after expiratioa of any extension or renewal of thisWK
Lauae eoreaiau and acraes that if tha late »b*H be temiinated (either because of condition broken durtnj die term of this lease or anyrenewal w exKation thereof and/or whcs rise lero hereby created or any extension [hereof shall have expired) then, aad m that event Lestar•uy emaK a jadjment in ejecmMzK to becaured ajainst Lessee for possession of the demised premises, and for that purpose Lei«ee herebyauthoriics and empowers any Pfathonotarj, Clerk of Conn or Attorney of any Coon of Record to appear for Lessee and to confess judrrnentafiuwt Lessee ta fcjecmxm {or pouession of the herein oemi»ed premises, and atrees that Lessor may commence an action pursuant to Penn-syltuu Rules of Procedure No, 2970 ct MQ= for fhe entrj* of an order in Ejectment for the pouesiion of real property, and Lessee furtheragrees that a Writ of Possesiion persoant thereto may Usue forthwith, for whicb aulhoriiation to confeji judcmem and for the issuance of awrit of writs oC poueicion ponuaat themo tfus leue, or a true and correct copy thereof, shall be sufficient warrant Lessee funlter covenantsand acred, that if Tor arty reuoa whatsoever, after said action shall have commenced the action shall be terminated and the poswssion of thepfernisademiKdhertuodershij! remain in or oe restored» Lessee, Lessor shall have Iheniht upon any iubsequent defaulter defaul(s,ur upontlte t«rnumtiofl of this kue as a&ove set fortfc to commence succenive actions for possession of real property and to cause the entry of successivejudgments by coofcUKxi in Ejectment for youeuioc of the premises denused heteunder.
In any procedure or ac&n to enter Jmdfmast by Confeslion for Money pursuant to Section 16 hereof, or to enter Judgment by Confessionin Ejectment for pooesiioc of real property pursuant to Section 17 hereof, if Letter shall first cause to be filed in such action ar affidavitor averment of the facts coniamtint the default or occurrence of the condition precedent, or eveni, the happening of whkh default, occur-rence, or event authorues and empower* Lctsor to cause the entry of judgment by confession, such affidavit or averment st»]i be conclusiveevidence of such facu, ocfaalu. occarreBcec. eooditiorts precedenl. or events; and if a true copy of thin kase (and of the trudi o{ which suchjJidivi? or i«rment shall be su£ctcct evidence;) be fikd in such procedure or action, it shat! net be neceMary to file the oriirinal . A Warntniof Artorncy. any rule of court, culom. or practice to the contrary not withstanding,
Leuce hereby rekues (o Lessor and to airy and all attorneys who may appear for Lessee all errors in any procedure or action to enterladtmenr by Confetwon by virtue of the wamuus of attorney contained in this lease, and all liability therefor. Lesiee further authoriies theFrotbonotary or vy Orrk of any Court of Record, to ittat a Writ of Execution or other process, and further agree* thai real estate may besold on a Writ of E-xeccbon or other process. If proceeding shall be commenced to recover poueukm of the demised premises eitlier at the endof the term or sooner tern-nation of this tc__e, or for Don-paymect of rentpr for any other retton. Lessee sped neatly, waives the right to thethree (2) months" notice ta quit -nd/or the £fieen (IS) or thirty (30} days* notice to quit required by the Act wf April 6. 1951. Pi, 69. asamended, and agrees that five (S) days* notice shall be sufficient in eilheroranyiuchcase.
The right to enter jodgment against Lowx by confessioc and to enforce all of the other provisions of this lease herein provided for may atthe option of any astcgnee of this lease, oc exercised by any assignee of the Lessor's right, ride and interest in this lease ir. hii, her. or their ownname, uiytotute, rule of court. eustojE. or practice to the, contrary notwithstanding.
ATI of the remedies hereinbefore give, to Lewor and all rights *nd remedw* given to it by lav and equity ska!! be camuUiive and co«-curteni So determinxtion of th»tea»c or th-ukin_ or recovering poMruton of the premises shall deprive Lessor of anv of it* remedies or actionsH*init tUe Let—t« for rent due at the tinx-or-which, under the term* hereof would in the future become due as i! there tad been nodctermma'iwn fvor *ha!l the bntijinic of any action for rent or breach of covenant, or the resort to any other remedy herein provided for the recoveryel rent be construed as a waiver of the right to obt-ir po-t«suotx of the premiss.
In the event that the premises demised! Iwrem. or any pan thereof, is taken or condemned for * public or quasi-public UK. this lease shall.as IP the part to taken, lerrTuruieuorthevUte title shall vest b the condemnor. and rent shall .bate in proportion to he sQuarc feet of teasedtpatc tiktn or eondcrnned or shall ceue i! the entire premises be so taken. In either event the Lei»ee waives all claims against the Lessor byrruoa of the cnnp-lete or panu3 ufang of the demised premises.
Th'l A(r«n>e«t <of UUK and alt it* terms, covenant* and provisions are and each of them is wbjeci and -jbordiaate ta any kase or other3rraflc«nKnt or right to poueuion. under which the Lessor ia m Control of the denned premites. to the rights of the owner or owners of tiwdcmii^d prcmtfct and ot the land or btittdia_c of which the demised prermie* are a pan, to all nghu of the Lessor's landlord and to any and allmor(g»tr« and oiher cncumbr.nc-s ««w or Jwreaftrr placed upon the demited premises or upon the land and/or the buildings containing tbeMime, and Leucr exprmly agree* that if Lrwioc's tenancy, control, or right to posaesstoa shall terminate either by expiration, forfeiture or other-wt«, then ikit ka»e shall thereupon unmed_ite!y terminate and rite LeM-e shall, thereupon, give immediate poue-uon: and Leuee hereby waive*any ind all churns foe danuc-s or other-vac by reason of such termination as aforesafd.
Jl Kbcftty rauiuall> agreed thai eitWr party hereto may dcierniine this lease at the end of «aW term by r'ving ta the other party writtenMticethrreof aCkast30 dayS.< -. ,„«« ~._, prior thereto, bu: in default of such notice, thU kase iball continue upon the «n_: teraMandcondition* m force immwl-nely prior to _*rexpiration el the term hereof as are herein contained for a further period of..,0ne ™(-i )W-0.n.th-and to on fcora:: = = =,,,=.»ont,h. ;:, - =-.-„-, „. . „......„,..,„.,to...........JROntJl.,, ..„ . ., ............,.,......,.......,.,unfc«« or until temin-ted _t eitherparty henio, pving the other ,, .,3jJ . OaV£ ,,„„,. ............written notice for removal previous to expiration of the then current term;PROVIDED, toweveV, tfeatshouW this Icoac be coatinued fora further period under the terms hereiiubove Rationed, any aUovances gtvraLcu«e ** tbe rent dunng the ongiaa! term s4all not extend beyond such ordinal term, and further provided, however, that if Leuor shall havegiv-n sucH wrillen *odce prior to the expiraiton of aay tern hereby created, of hit intention to change the lernu and conditioos of this leue,*»d Le_te« sluK not withiaI== ..-=* -. = . dayi frons such notice notify Lnaor of LCBKC'S intention to vacate tbedembed preml»a at the end ofthe then current lerm. L-MKT ttalt be considered «* Le*"« under the terms and conditKxis mentioned in such nouce (or a further term uabovtprovided, or foe »*>ch furtWr term a» «**y> beau ttd in much notice. In the event that tx-*eg <hall fivy notice. a» stipulated in this ieax, of intefl-lic* to vacaw ihe dcmived premi-n-xt the e«d of tHc present term, or any renewal or extension thereof, and shall fail or refu*e *o to vacate the«rw «n the date d«jfBjU-d by such wot ice. then it n expreMly agreed that Lruor shit I have the option either {a} to diiregard the notice sogiven *» (utving M> eflrcr. id wh«:h «_* alt the ferau and condiuons of this leue shall continue thereafter with (utl force precuely as if suchnoi'ice bad «ot been jivea. or <*) Lewor nay, at any time within thirty day* after the preunt term or any renewal or extetukxi thereof, wafomaid. five the U»d Lts-ec ten day*' written notice of hni intention lo terminate the said leue; whereupon the Le*Ke expr-wly arr«s tovacxlc uid pre(ni*rs at the eipirtdon of tbc x-id period of ten days ipecined in said ncuct. All powers granted to Leaser by thb leue may beexercised and aD Abligatio<M impowd upon !_r»«e- by this feue shall be performed by Lewsee as well during any exwn-on of the origiaal termof this Uaae as during Ike original term iueY.
Al I notices mast be e>*«i by ceniJSed; nvH, morn receipt rcmMsted.It M cxprrMly undentood «*<t agreed fry and between the paniem hereto that this Icaae and the riders attached hereto and formng a part
kcrref «t forth all the pnmttf*. afjre-teaia, condibons aod and=r»undingi between Leuor or his Agent and Leaaee reUtive to the demnedpremMc*» iitd that there are so promi«ca. jcreements, conditions or understandings, either oral or written, between them other than hrreiaKtforth. UufunberuiKkntoc<i-ndacrcTOtnat»CJLC-ptuherernmhe™^lo lhf« luae aball be binding upon Lnaer «r Lesae- unless reduced to writing and *tgne- by them,
Afl nfhl» and lUbiUlkx heretn gfvea ux or imposed upon, the respective parties Mreto shall extend to and hind the several and reipectiveheir»,ewcu«>cs,adrRlriiurato«1 MKC«-*arK«ndasktg~sof saidpartief^-ndH there shall be more tbau one LCTKC. they >Ha!l.ll be bound jointlyai*d •eventlty by the trrm«. csveranta and1 aajix-mcntt herein, and the word "LcMee" sh-11 be deemed and Liken to mean each and every personer party-kenipooed as a LrWcbereut.be tlMraamconcormor-^ and if there shall benv>~; than one Lessee, any notice required or permitted byihetermiof thMteajcauybe_ivenbyoctaanyo-c thereof, and shall have the same force and effect as if givea by or to all thereof, The worM"hi«" and "him" wherever stated herein, -hall be deemed to refer to the "Leuor" or "Le-«" whether such Lemor or Leaaee be sinf ilarorplufsl a»d irmpectiv- of gender. Kor»g»t_._owever. shall inure to tbe benefit of may .wifnee of Lewe «nk*§ the assifncncnt to such awfa*eMI b*e- .pprov-d by Le-ior io. writing a* aforesaid,
LeiKtdoesherr^lhdcpoKCW^ihLeisortKeswnof NONE _ Dollars.lobe heW u wcunly for'thi full and fauM-I prrformance by Lessee of Lessee*! obiiffatiofit tinder ihis Incase and for the payment of damagesto the ddVKd pirmltei Siid security drposh is *o be hefd by Lesior as an Escrow Fund puriuani to (he terms ami provision* of (he Penn*Act of AiventbK approred D««mbet 29. 1972, Act No, 363 Eicept for such sum ai shall be lawfully applied by Lessor to i-rufj- valid claims
Lr»K* tntsnf frorr, deiaolts Mnder OiJs lease or by rrasors of damage* to the demised pretniKt. the Escrow Fund thai! b? returned tot iHecx^ratton of the term*, of this leue or inj irnewaljor «ienw<jiTi thereof bat =s >N.*!.j«i toe in the liid Act of AiKmbljr It if
htt rw war of anv H-~J?K> dfsoair or Evrov FurxJ i* to *>• ronaij«n-d ac ><-.. '.j- .•-..,.' rl4 . und r tV c—nt of thf leaie.
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Lease AgreementThis Agreement, MADE THt-_™-_iatji.«™_
<W_u»4/c-r aJUd LMW*>. of tW ether part.„ WmftSSTTH THAT: t__sordo.i.lMnby dMti-t aad bt uau LMMC all thatc-rtaI«....riD.rtipn.,.pdo.i.lMnby dMti-t aad bt uau LMMC all thatc-rtaI«....riD.rpn.,.
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JB,e.r,kS,,...,..............~5eat- of PeMwytvuia. ta be ttsed and occupied u....~..C -UpJLed;——».«„«««..«.—«————————, and for no other purpose, for the ttnn of-Ofte—(••!•)-«0*vth
day «T«.-M&U.BH-it.™___., OM dx-i-t»d aia. htadnd and. 1|._fei&_3££-».day at———AtigilS.t..————..... am thaamad -»* hundred •ad.£ish.tysT.Kff...4M.82-———>,
for tw mimm*m
payable In montfcly io«-u*aMet> m Advance during t_* *a_i term of this hue, or a«y renewalhcreafi ta turn* rf =&; — —,„,„,..,. _ .-..-.....i.m...-n......n..._.i_.....1..,.,_,..l..,.....J........._ ,„.„....!. _ .„.„ _ •,-„-, ,,,„-,, ,,,.,..—„ ...... .Dplfaft ($.,....«.~~..,. ..->.,)o*>dM--;~-.--, ..-_-_ w, = —————————— , ———— ,„ —— day of «_di moatfe. rear u begin from the...... — .„_.. J.&t— .. — ...... .... ....,..,,.„».«,..—.. —— ._.
eachid atriw rime of ligninf this lease. The first renal payment to be made during the occupancy of the premises shaQ
be adjusted to pro-ntc a panisl month of occupancy, if any, it the inception o£ this lease.
If Lessor is unable » give. Lessee possesiioa o£ the demised premises, u herein provided, by reason of the holding over of a previousoccupant, or fey reason of any cause bcyood the control of the Lessor, the Lessor shall not be liable in damages to the Lessee therefor, anddunnc the period that die Leuor b unable to give poueuion, all rights and remedies of bath parties hereunder shall be suspended, and ifLessor U traole for any reason to give potsessuxi of the demised prembes within 5 days of Lessee's demand therefor fallowing commencementof die term hereof Lessee shall hive the option, by notice to Lessor, to cancel this lease agreement and receive return of any prepaid rents andsecurity deposit IB Cull and final setdo-eot of *ay and all claims against Leuor.
(f) Les-fc agree* u pay ax rent in addition to the minimum rental herein reserved any and all sum* which may become due by reason ofthe failure of Lesi-E to •cotaply with all of the covenants of this lease and any and all damages, con* and expense* which the Lessor may sufferor incur by rcuaa of __v oefxulc of the Lessee or failure on ha part to comply with tbe covenants of thi* lease, and each of them, and alsoany and all damage* ta toe demised premises caused by any act or ne Ien of the Le»ee.
{}} Leuee further agree* to pay a* rent in addition to tbe minimum rental herein reserved all taxes assessed or imposed upon the demisedpremises and/or the building of wnich the demfsed premises is i part during the term of this lease, in excess of and over .nd above those isieaedOf imposed at the use of making tH* tease. The amount due hereunder on account of such taxes shall be. apportioned (or that part of the firstand tan calendar y*»r* covered by the term benof. The same shall be paid by 1 rurf to Lessor on or before the firs;,day ot July of each andevery ycar=
<c) LcMce further arn__ to pay to Loner u additional rent alt increase or increases in fire insurance premium* upon the demised premisesand/or the building; of which the demised premises u a part, due Co an increase in the rate of Are insurance in excess of the rate on the demisedpremises JLC tbe tune of making this lease, if said increase is caused by any act or neglect at the Lessee or the nature of the Lessee** business.
(.) Leuce further agree* to pay i* additional rent, if there is a meiered water connection to the said premises, all charges for water con-sumed upon the demised premises in excess of the yearly minimum meter charge and all charges for repairs to the said meter or meters on tbepremises, whether atich. repairs *re made necessary by ordinary wear and tear, freeztog, hot water, accident or other causes, immediately whentbe same become due,
M Lessee further agree* ta pay as addition-! rent, If Usere is a nutered water connection to -aid premises, all sewer rental or charges foruse of sewers, sewage system, awd sewage treatment works servicing the demised premises in excess of the yearly minimum of such sewer charges.immediately when the same bcccfae due.
AH rent ikaU be payable wiihce: prior notice or demand «the office of Lc_K_Y..*.&fW.o£he(n 4-—IfiC-*- -R<J_ t-_=™56-2»——-—•—»—••or at such, other pUce as L-uoe -uy from time to time designate by notice in writing, J
LCMCC covenants and agree* tfeat be wil! wit&ouc demand ' -.{«> Pay dve ren? and all other charges heraa reserved a* rent at the times and M the place that :he same are payable without fail; and
if Letter shaJi at any time or rimes accept laid rent or rent charges after the same iha.il have become delinquent, such acceptance shall not excusedelay upon mfescqvent occasions, or constitute or be construed ai a waiver of .r.y of Lessor's rights. Lesser agrees that any charge or paymentherein reserved, included, ar ag'f eeU to be tmtted or collected as rent and/or any oilier charges, expenses, or costs herein agreed to be paid byLessee may be proceeded foe and recovered by Leuor by legal process in the same manner as rent due and in arrears.
(*1 Keep the demised premises ckan and free from all aibe*. din and other (-fuse matter: replace ill glut window*, door*, etc. broken;kerp all waste and drain pipe* open; repair at! damage to plumbing and to the premises in general; keep the same, in good order and repair isthey arc now. reaaoaable wear and tzar and damage by accidental fire or other casualty not occurring through negligence of Lessee or thoseemployed by or actiirg for Lcjacc, atone excepted. The Lewefi *g™* to surrender the d«miwd premises t'n the same condition in which Lesseeh» herein agreed ta keep the same during i&eceatimanc* of this leaae,
(e) Comply witi any requirements of any of the constituted public authorities, and with the term* of any Stale or Federal statute or localordinance or reculxtioa appUabfe to Lessee or at* use of the demised premise*, and save Lessor harmles* from penalties, fines, costs or damagesresulting froca failure so to do.
<**J L"*e every reaJOrutblepncau-oa agzinst fife.<*) Comply with rule* ana reguUtion. of Lessor prwnalfaced a*, heretna/ter provided.f/> PacctbJy <kSvtr op »ad sttrrcnderpoweufon or the rfemtscd premises to the Lessor at the expiration or sooner termination of thi*
Inuw. promptly deitverinf to Lessor it h!a omce all key* for tbe demited oremue*.(r) Give to Les*or prompt wmiea notice of any accideet, fire, or damage occurring on or to the demised pcemaes.(*} Le*M« thill be responsible for the condition of the pavenicac. curb, cellar doors, awnings and ocfier erections m Uie pavemeflt during
the term of Uu> f«_x: shall keep the pavement frve from BOOW and toe; ind shall be and hereby agree* that Lenee u solely Itabk for any acci-oent*, due or alleged to be due to &*ir defective coadittoo* or to any accumulation* of snow and ice.
(i) The Ltmet agrees that if. with the pera»Mion in writing ot Leuor, LCMCC saai! vacate or decide at any time during the term of thisUase, or any renewal thereof, to vacate the herein demised premise* prior to the expiration of ihis lease, or aay renewal hereof. Lessee will notcause or allow any other agent to repmenc Lewee fit any wb-letting or resetting of the demised premise* other than an agent approved by the» Lessor and that should LOMC do so. or attempt to do «o. tKe Lcwor may remove *oy sign* that may be placed on or about tb« demiaedpremuta by such other aj*-X wttinwC any liabiKey to Lessor fir to said agent, the Lessee xaaunung all re*pOB*ibdity for n*cn actioe,
) Indemnify and save Lraor aarnit-M (ro-i any and all lam occasioned by LeMee'i breach of any of the cov-nants, term* and conditionsof this lotae, or eauard by hit family, guesta, visitors, agent* and employee*.
Ltuec cOR*en_nu -ad acree* thai he will do none of the foJJowing things without Snt o&ttinm the consent, in writing of Lessor, whkltcontent Letter shill not wureascatbly withhold, and without aravidiRf Lessor with mmburseneni for my expenses mcurrtd or incident-1 to"teitcc* proposed ictk*.
f«) Occupy the demised peemiaes in. any other manner or for any other purpoae than as above »« forth, ' ——(*) Asiign, mor(g3g« «" ptrtige th« teate or under-let oe $ub-ka—r the demi>-d pnmiae*. or jny part thereof, or pc
nrm or corporatAA to occupy the demised premiae*, or any part (hereof: nor shall any auicnee or sub-iessecj sMgn r\ f\ tleave or such iub ku*. wit-out .n .-ditiocul writun content by (he Leucx, and without sucn consent no suefajMnrae 1 1 fl |
* ihall b vai<d If the L«»«rbeccme<-wba*rsst*'lor rnaotv-ut. &- rt,iV« art titt^nmrnt for the brnen of cr'-f;:*H IrtiStupitfo'lafsnltl ;« 4Uc hv »x a<sm»r (he L -»«- **f * -'" ir-^uitv rv other pr.xe j-15 tot ih< rf go.-ii.-icrn a( a receiver nx •*>- J -**ff n SJ **, «w if
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2.3 Indemnity and Waiver of Claims. Lessee covenants and agrees to protect™exonerate, defend, Indemnify and save Lessor, any of Lessor's individual members Oremployees and/or any assignee of Lessor harmless from and against any and all costs andliabilities which may arise out of Lessor's holding title to the Leased Property, andfrom any and all claims by or on behalf of any person or persons, firm or firms, corp-oration or corporations, arising from any act, condition, happening or occurrence what-soever In or about the Leased Property, whether now, heretofore or hereafter arising,and will further protect, exonerate, defend and indemnify and save Lessor, any ofLessor's Individual members or employees and/or any assignee of Lessor harmless from anagainst any and all claims arising from any condition of the buildings or buildingequipment or loading platforms, parking areas, or any other part of the Leased Property jor of any street, curb or sidewalks adjoining the Leased Property, or of any passagewayappurtenant thereto, or arising front any breach or default on the part of Lessee In theperformance of any covenant or agreement on the part of Lessee to be performed pursuantto the terras of this Lease, Including but not limited to any covenant, condition orrestriction now of record affecting the Leased Property, or arising out of any contractor lease made by or assigned to Lessee relating to the Leased Property, or arising fromany act or negligence of Lessee or any of Lessee's agents, contractors, servants,employees or licensees, performing work on or about the Leased Property or arising fromany accident, injury or damage whatsoever, caused to any person, firm or corporation, inor about the Leased Property, or upon the sidewalks and curbs adjoining the LeasedProperty or in any passageway appurtenant thereto; and from and against all costs,counsel fees, expenses and liabilities incurred in or about the defense of any suchclaims, actions or proceedings brought thereon. Lessor, any of Lessor's individualmembers or employees or any assignee of Lessor, as the case may be, shall give promptwritten notice to Lessee of any clalni asserted against It or them (when such claimsbecome known to it or them), which, if sustained, may result in liability of Lesseehereunder; provided, however, that the failure on the part of Lessor, any of Lessor'sindividual members or employees or any assignee of Lessor, as the case may be, to givesuch notice shall not relieve Lessee from Its obligation to protect, exonerate, defend,indemnify and save Lessor, Lessor's individual members or employees and/or Lessor'sassignee harmless as aforesaid, except to the extent that such failure to give noticeresults in actual loss or damage to Lessee; and in case any action or proceeding bebrought against: Lessor, Lessor's Individual members or employees or Lessor's assignee byreason of any such claim, Lessee, upon notice from Lessor, Lessor's individual membersor employees or Lessor's assignee, as the. case may be, covenants and agrees diligentlyto resist or defend such action or proceeding; provided, however, that Lessor, any ofLessor's individual members or employees or any assignee of Lessor, as the case may be,will cooperate and assist In the defense of such action or proceeding If reasonablyrequested to do so by Lessee, Lessee will not make any claim against Lessor, any ofLessor's individual members or employees or any assignee of Lessor, nor shall Lessor,any of Lessor's individual members or employees or any assignee of Lessor be liable forany damage or Injury to any property of Lessee or any other person on the Leased Prop-erty or to any part of the Leased Property due to any cause whatsoever, including waterleakage, overflow or discharge, rain or snow, whether or not because of any defect Inthe Leased Property now, heretofore or hereafter existing.
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SECTION 3, RENT
3.1 Basic Rent. Lessee shall pay rent (the "Basic Rent") without notice ordemand as follows:
(a) Basic Rent will be payable during the Term In accordance with Lliepayment schedule of principal and interest and related terms and conditions solforth in the Mortgage Note, which Mortgage Note is incorporated herein by referencethereto.
(b) The Basic Rent and all other amounts payable under this Lease shall ibe payable without suspension or abatement notwithstanding any defect in Lessor'stitle to the Leased Property and regardless of whether Lessee shall have the useand occupancy of the Leased Property, and shall not be suspended or abated byreason of damage to or condemnation of the Leased Property or Lessee's purchase ofany portion of the Leased Property except as specifically provided herein.
3.2 Assignment; Direct Payment of Basic Rent and Other Amounts Payable byLessee. By executing and delivering an Assignment of Lease Immediately following theexecution and delivery of this Lease, Lessor will assign to the Lenders the right toreceive the Basic Rent payable under Subsection 3.1, the Option Price payable underSubsection 4.1, and any prepayment of Basic Rent under Section 4.2 and grant to theLenders the right to exercise Lessor's rights hereunder if a default occurs In respectof the Mortgage Note or the accompanying Mortgage, Lessee consents to such assignmentand grant and agrees to pay the amounts assigned directly to the Lenders without anydefense, setoff or counterclaim arising out of any default under this Lease or In anyother agreement, transction or occurrence between Lessee and Lessor and/or the Lenders,it being the intention of the parties that this Lease shall yield the Basic Rent, net,for the benefit of the Lenders. Lessee acknowledges that the Lenders do not assume anyof Lessor's responsibilities hereunder by virtue of such assignment.
3-3 Additional Rent; Indemnity. Lessee shall pay as additional rent (the"Additional Rent") (a) all taxes, assessments and other governmental charges imposed onthe Leased Property; (b) any tax Imposed upon Lessor or the Lenders on account of theentering into of this Lease or the holding of any security interest under the mortgageof even date herewith frora Lessor to the Lenders (the "Mortgage") and/or under theSecurity Agreement of even date herewith among Lessor, Lessee and the Lenders (the"Security Agreement"); (c) all charges for utility services supplied to the LeasedProperty; (d) all amounts for which Lessor would otherwise be liable by reason of Itsownership of the Leased Property, its interest as lessor under this Lease, or Itsreceipt of rent under this Lease; (e) all amounts for which Lessor Is entitled to reim-bursement under Subsections 2.3 and 11.2 of this Lease; and (f) all expenses (includingcounsel fees) reasonably Incurred by Lessor or Its assignee In enforcing Lessor's rightsunder this Lease or obtaining possession of the Leased Property upon termination of thisLease. Subject to the limitations contained in Subsection 9.2 hereof, Lessee may con-test any claims covered by clauses (a) through (d) so long as such contest does notresult in the Imposition of a lien against the Leased Property. If, notwithstandingLessee's obligation to pay the same, any claim covered by clauses (a) through (d) isasserted against Lessor or the Lenders, Lessee shall reimburse Lessor or the Lenders for
SR200I63
all expenses (Including counsel fees) reasonably incurred by Lessor or the Lenders indefending or settling such claim*
SECTION 4* OPTIONS TO PURCHASE, PREPAY
4.1 Purchase Options.
(a) Upon at least thirty (30) days' written notice to Lessor, Lessee majpurchase the Leased Property and terminate this Lease at any time when the MortgageNote Is outstanding and this Lease has not previously been terminated by Lessorpursuant to Subsection 11.2 of this Lease by paying (i) the unpaid principalbalance of the Mortgage Note, all accrued interest and all other charges properlypayable under the terms of the Mortgage Note, this Lease, the Project Agreement anall other documentation referred to in Section 1.2 of the Project Agreement (the"Related Documentation"), plus (ii) the amount of any expenses reasonably incurredby Lessor In connection with the payment of the Mortgage Note, satisfaction of theMortgage, termination, of the security interest created pursuant to the SecurityAgreement, preparing and recording the deed and bill of sale and any transfer taxesor other expenses relating to the conveyance of the Leased Property to Lessee(collectively, the "Option Price"),
(b) Lessee may purchase the Leased Property and terminate this Lease atany time when all amounts owing under the Mortgage Note, this Lease, the ProjectAgreement and the Related Documentation have been paid in full, upon at leastthirty (30) days written notice, by paying One and 00/100 Dollar ($1.00) toplus all expenses reasonably Incurred by Lessor In conection with the conveyancetitle,
(c) If Lessee exercises the option to purchase under clauses (a) or (b)above, Lessor shall be required to deliver only a special Warranty Deed and a billof sale in quitclaim form together with a satisfaction of the lien of the Mortgageand a termination of the security Interest created pursuant to the SecurityAgreement, and Lessee shall accept whatever title Lessor may have to the LeasedProperty, provided that such title is substantially the same as that as of the dateof this Lease, excepting only any part of the Leased Property taken by eminentdomain during the Term of this Lease and any encumbrances or objections created orcommitted by Lessor with Lessee's consent or created by or against Lessee.
4.2 Voluntary Prepayment. At any time when Lessee Is not in Default underEhls Lease, Lessee may make a prepayment of Basic Rent subject to the terms and condi-tions of the Mortgage Note, which prepayment Lessor shall apply to the unpaid principalbalance of the Mortgage Note.
SECTION 5, IMPROVEMENTS
5.1 Maintenance. Lessee shall maintain the Leased Property In good condi-tion, wear and tear from reasonable use excepted.
5.2 Alterations and Additions. Subject to the prior written consent ofLessor and the Lenders, not to be unreasonably withheld, and subject to the terms of th_
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Mortgage, Lessee may, at its own cost and expense, make such alterations, changes,replacements, improvements and additions to the Leased Property as It may deem to bi.-desirable for Its uses and purposes, provided that such alterations, changes, replace-ments, Improvements and additions shall constitute part of the Leased Property.
SECTION 6. INSURANCE
6.1 Property Insurance. Lessee shall keep the Leased Property insured in •accordance with the terms and provisions of the Mortgage.
6.2 Liability Insurance. Lessee shall maintain liability and contingentliability insurance protecting Lessor, as well as Lessee, against liability from budilyinjury or property damage covered by Lessee's Indemnity under Subsection 2.3 hereof in (amounts reasonably satisfactory to Lessor and the Lenders. iti
SECTION 1. CASUALTY !i
If the Leased Property is damaged or destroyed, whether or not covered b>Insurance, this Lease shall nevertheless continue In effect without abatement or suspen-sion of rent unless and until Lessee exercises the purchase option under Subsection 4.1 !hereof.
All insurance proceeds shall be payable to the Lenders for application in \accordance with the terras and provisions of the Mortgage. i
SECTION 8. CONDEMNATION
All awards of damages by reason of condemnation shall be payable to theLenders for application in accordance with the Mortgage. ;
SECTION 9. SPECIAL COVENANTS OF LESSEE |!9.1 Payments in Lieu of Taxes. Lessor and Lessee acknowledge that under j
present law no part of the Leased Property owned by Lessor will be subject to ad veiorem;taxation by the Commonwealth of Pennsylvania or by any political or taxing subdivision Ithereof and that under present law the income and profits, if any, of Lessor from theLeased Property are not subject to either Federal or state taxation. Notwithstandingthe foregoing, it is understood that the approval of the financing of the Project by theSecretary of Commerce, Commonwealth of Pennsylvania is conditioned upon the agreement ofLessee to make payment in lieu of taxes to the local taxing authoritites in the amountswhich would be payable under local ad valorem property tax ordinances or resolutions ifthe Leased Property were subject to such taxes and accordingly Lessee covenants andagrees to pay In lieu of ad valorem taxes to all such local taxing authorities, Includ-ing, without limitation, the county, municipality and school district In which theLeased Property is situated, in each year on or before the date upon which such taxesare generally payable without penalty, the amount which would be payable to each suchtaxing authority under currently effective ad valorem property tax ordinances or resolu-tions at the time of payment if the Leased Property were subject to such taxes. Tbeforegoing covenant is made expressly for the benefit of such taxing authorities and maybe enforced by them as third party beneficiaries.
In addition Lessee covenants and agrees to pay all ad valorem taxes which nbe validly Imposed on the Leased Property, In which event, the covenant to make paymentsIn lieu of Laxes to the municipal or taxing authority imposing such tax shall lapse andbe void-
Lessee at any time in good faith may contest in its own name or in the name ofLessor the validity of any ad valorem property tax ordinance or resolution or the amountof the assessment of the Leased Property, and may also contest the amount of payments tobe made hereunder in lieu of taxes on any grounds other than the immunity of Lessor to ]such taxation, and, during the pendency of such proceedings and appeals therefrom, if 'any, may withhold payment of all or part of the payments in lieu of tax or taxes, as the ;case may be, unless by such action title of Lessor to any part of the Leased Property !shall be materially endangered or the Leased Property shall become subject to loss orforfeiture In which case Lessee shall forthwith make such payments notwithstanding suchpendency.
9.2 Other Governmental Charges; Utility Charges. Lessee agrees to pay, asthe same respectively become due, all other taxes and governmental charges of any kindwhatsoever that may at any tine be lawfully assessed or levied against or with respectto the Leased Property, or any other machinery, equipment or other property installed orbrought by Lessee on the Leased Property including, without limiting the generality ofthe foregoing, any taxes levied on or with respect to the income or profits of Lessorfrom the Leased Property which, If not paid, will become a lien on the Leased Propertyprior to or on a parity with the lien of the Mortgage or the security interest createdpursuant to the Security Agreement or a charge on the revenues and receipts from theLeased Property prior to or on a parity with the charge thereon and pledge andassignment thereof created and made in the Mortgage and/or the Security Agreement andIncluding any ad valorem taxes assessed upon Lessee's interest in the Leased Property,all utility and other charges Incurred in the operation, maintenance, use, occupancy andupkeep of the Leased Property, and all assessments and charges lawfully made by anygovernmental body for public improvements that may be secured by a lien on the LeasedProperty, provided that, with respect to special assessments or other governmentalcharges that may lawfully be paid In installments over a period of years, Lessee shallbe obligated to pay only such Installments as are required to be paid during the Term ofthis Lease.
Lessee, at its own expense, in its own name and behalf or in the name andbehalf of Lessor and In good faith, may contest any such other taxes, assessments andother charges and, In the event of any such contest, may permit the taxes, assessmentsor other charges so contested to remain unpaid during the period of such contest and anyappeal therefrom, unless by such action the title of Lessor to any part of the LeasedProperty shall be materially endangered or the Leased Property or any part thereof shallbecome subject to loss or forfeiture, In which event such taxes, assessments or chargesshall be paid forthwith by Lessee. Lessor will cooperate fully with Lessee in any suchcontest.
9.3 Assignments and Subletting, So long as any amounts owing pursuant tothis Lease, the Mortgage Note, the Project Agreement and/or any Related Documentationremain unpaid, Lessee shall not without Lessor's and the Lenders' consent, which consent
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AR200I66
shall not be unreasonably withheld, assign its interest in this Lease or sublet theLeased Property.
SECTION 10. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS
10.1 Lessor's Right to Perform. If at any time Lessee defaults In theperformance of any of its covenants under this Lease, Lessor, may perform the same, butshall not be obligated to do so. Lessor may enter the Leased Property for this purpose,and such entry shall not be deemed an eviction.
i10.2 Lessor's Right to Reimbursement. Lessee shall reimburse Lessor, on I
demand, for all sums paid and expenses reasonably incurred (including counsel fees) in jperforming Lessee's covenants as permitted by Subsection 10.1 hereof, together with Iinterest on such sums and expenses from the date(s) of payment thereof at the rate per Iannum from time to time chargeable under the terms of the Mortgage Note. I
jSECTION 11. DEFAULTS AND REMEDIES I
i11.1 Events of Default. The following shall constitute events of Default I
under this Lease: ;
(a) If Lessee fails to make any payment of Basic Rent within fifteen j(15) days after the due date thereof;
j(b) If Lessee fails to pay any Additional Rent and such failure con- j
tinues for fifteen (15) days after Lessor gives notice that the Additional Rent is 5due and unpaid.
I(c) If Lessee fails to perform any of the provisions of Section 6
hereof;
(d) If Lessee fails to fully perform, keep or observe any other tern,provision, warranty or condition contained in this Lease, in the Project Agreement \and/or in any Related Documentation, which term, provision, warranty or conditionis required to be performed, kept or observed by Lessee ;
(e) If there shall occur an event of default under the Mortgage Noti.:and/or any Related Documentation, as provided therein;
(f) If now or at any time hereafter any warranty, representation,statement, report, covenant or certificate, now or hereafter made or furnished tothe Lenders and/or Lessor by or on behalf of Lessee is not true, correct and sub-stantially complete;
(g) If any of the property of Lessee, whether real or personal, tangibleor intangible, is attached, garnished, seized, subject to a writ of distresswarrant, or is levied upon or comes within the possession of a receiver, trustee,custodian or assignee for the benefit of creditors;
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(h) The filing or commencement of any proceeding in bankruptcy whereinLessee is designated as the debtor, or for the reorganization of Lessee, or for theadjustment of any of the debts of Lessee under the Federal Bankruptcy Code, asamended from time to time, or any part thereof, or any successor thereto, or underany other act or law, whether state or federal, for the relief of debtors, now orhereafter existing, and such proceedings shall noc be discharged within thirty (30)days of such commencement;
(i) The making by Lessee of an assignment for the benefit of creditors;
(j) The attempt by Lessee to make any common law composition of debtswi.h creditors;
(k) To the extent It materially impairs Its ability to conduct Itsbusiness, the filing of any tax lien on any of the property of Lessee , whetherreal or personal, tangible or intangible;
(1) The existence of any lien, security interest or encumbrance withrespect to the property covered by the Mortgage and/or the Security Agreement,other than In favor of the Lenders;
(m) Failure by Lessee to pay its substantial debts as they become dueand payable;
(n) If for any reason Lessee makes a bulk transfer or otherwisetransfers property, whether real or personal, tangible or intangible, other thanthe ordinary course of its business;
(o) If there exists reasonable grounds for insecurity on the part ofLessor and/or the Lenders as to the future performance by Lessee of any terra,condition or provision of this Lease, the Project Agreement and/or any RelatedDocumentation, or the keeping or observance by Lessee of any representation,covenant or warranty contained in this Lease, the Project Agreement and/or anyRelated Documentation, which terra, condition, provision, representation, covenantor warranty Is required to be performed, kept and/or observed by Lessee and Lessorand/or the Lenders, as the case may be, is not provided with adequate assurance ofsuch due performance and/or keeping or observance by Lessee within ten (10) days ofreceipt of notice from Lessor and/or the Lenders of such insecurity.
11.2 Remedies. If an event of Default shall have occurred, Lessor shall havethe right to exercise any one or more of the following remedies:
(a) Lessor may perform for Lessee any covenant or obligation in theperformance of which Lessee is in default. Upon demand by Lessor, Lessee shall payto Lessor an amount equal to the sum of (I) any amount paid by Lessor, (II) allreasonable out-of-pocket expenses, if any, Incurred by Lessor in connection withsuch performance, and (ill) Interest on such amount and such expenses from thedate(s) of payment thereof at the rate per annum from time to time chargeable underthe terms of the Mortgage Note;
—ft—
(b) Lessor may declare to be immediately due and payable an p.nount equalto the sum of (i) the unpaid principal balance of the Mortgage Note, (ii) allaccrued, unpaid Interest thereon, and (111) all expenses of Lessor reimbursable byLessee hereunder. If Lessor elects to exercise che remedy set forth in the pre-ceding sentence, Lessee authorizes any prothonotary, clerk or attorney of any courtof record, as attorney for Lessee, to appear for Lessee to confess judgment againstLessee for the sura of Five Hundred Eighty Thousand and 00/100 Dollars ($580,000-00)plus interest at the rate per annum from time to time chargeable under the terms ofthe Mortgage Note, plus costs, for which authorization this Lease or a copy hereofverified by affidavit shall be sufficient warrant. Lessee waives the right otinquisition on any real estate that may be levied on to collect any judgmententered In such action, and does hereby voluntarily condemn the same and authorizesthe entry of a writ or writs of execution thereon;
(c) Lessor may terminate this Lease and take any one or more of th*ifollowing actions:
(1) Lessor may demand, and Lessee shall peacefully surrender theLeased Property;
(2) Lessor may enter upon and repossess the Leased Property. IfLessor elects to exercise the remedy set forth in the preceding sentence,Lessee authorizes any prothonotary, clerk or attorney of any court of record,as attorney for Lessee, to sign an agreement for entering and to enter in anycourt of competent jurisdiction an amicable action and judgment In ejectmentagainst Lessee and all persons claiming under Lessee for restoration of pos-session of the Leased Property to Lessor, for damages and costs and expenses(including reasonable counsel fees) incurred in connection with such actionand the entry of such judgment, for which authorization this Lease or a copyhereof verified by affidavit shall be sufficient warrant. Lessee agrees thatupon the entry of such judgment a writ or writs of execution may issue forth-with, without prior proceedings or leave of court;
(3) After taking possession of the Leased Property pursuant toclauses (1) or (2) of this Subsection 11.2(c) or otherwise, Lessor may collectrentals and enforce all other remedies of Lessee under any existing leases forany part of the Leased Property, but without being deemed to have affirmedsuch leases, and Lessor may enter into new leases on such terms as Lessor maydeem fit for any portion or portions of the Leased Property. Rentals undersuch leases may be applied by Lessor to any repair or maintenance of theLeased Property as Lessor may reasonably deem useful, and the remaining bal-ance shall be applied to Lessee's obligations hereunder In order of priorityto be determined by Lessor. Any balances of rentals remaining after suchapplication shall be paid over to Lessee by Lessor;
(4) Lessor may sell the Leased Property at public or private sale.The proceeds of such sale shall be applied to Lessee's obligations hereunderIn order of priority to be determined by Lessor. Any proceeds remaining aftersuch application shall be paid over to Lessee by Lessor.
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AR200I69
None of the foregoing shall prevent Lessee from exercising its option to purchase undelSubsection 4.1 of this Lease by delivering to Lessor the Option Price, provided thatLessor shall not have (a) leased or caused to be leased all or any portion of the LeasedProperty pursuant to Subsection 11.2(c)(3) of this Lease or (b) sold or caused to besold all or any portion of the Leased Property pursuant to Subsection 11.2(c)(4) of thisLease.
Lessee hereby waives and releases all errors, defects and imperfections what-soever of a procedural nature in the entering of any judgment or any process orproceedings arising out of this Lease. To the extent permitted by applicable law,Lessee also waives the benefit of any laws which now or hereafter might authorize thestay of any execution to be Issued on any judgment recovered hereunder or the exemptionof any property from levy or sale thereunder.
Lessor shall have the right to pursue any other remedies provided In theProject Agreement, In any Related Documentation and/or at law or In equity permitted.All rights and remedies of Lessor hereunder and/or thereunder are cumulative and may tothe extent permitted by law be exercised concurrently or separately, and as often asoccasion therefor shall occur.
11.3 Waivers and Exercise of Remedies. No failure by either party to insistupon strict performance of this Lease or to exercise any remedy upon default shallconstitute a waiver of such default, or a waiver or modification of any provision ofchis Lease. Upon any default, Lessor may exercise any one or more of the remediesavailable to It separately or concurently and as often as required to enforce Lessee1obligations.
SECTION 12. DEFAULT BY LESSOR AND LESSEE'S REMEDIES; RESTRICTED LIABILITY OFLESSOR.
In the event of any default by Lessor hereunder, the liability of Lessor toLessee shall be enforceable only out of its interest in the Leased Property and thereshall be no other recourse by Lessee against Lessor, its officers, members, agents andemployees, or any other property now or hereafter owned by it or them.
SECTION 13. SURRENDER OF POSSESSION
13.1 Surrender of Possession. Upon the termination of this Lease at theexpiration of the Tern, If Lessee shall not concurrently exercise its option to pxirchasethe Leased Property, Lessee shall peacefully surrender the same to Lessor free and clearof encumbrances other than those, if any, existing at the date of this Lease, or createdby Lessee with the consent of Lessor and the Lenders. Any property of Lessee which Isleft on the Premises for more than ten (10) days after such termination shall be deemedabaondoned and may be retained or disposed of by Lessor as It sees fit withoutaccountability to Lessee.
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SECTION 14. MISCELLANEOUS
14.1 Subordination to Mortgage. This Lease and the estate hereby grante-1 issubject and subordinate to the lien of and rights created by the Mortgage. Lesseehereby agrees to perform all obligations of the mortgagor in the Mortgage as if Lesseewere the mortgagor therein.
14.2 Notices. All notices under this Lease shall be in writing and shall beeffective only when delivered or sent by registered or certified mail, return receiptrequested, as follows, unless any party designates some other address In writing:
(a) To Lessor:
Berks County Industrial Development AuthorityBaer Building, Room 501529 Court StreetReading, Pennsylvania 19601
(b) To Lessee:
CryoChera, Inc.P. 0. Box 32Boyertown, Pennsylvania 19512Attention: Mr. Anthony Calzolaio
14.3 Successors and Assigns. This Lease shall bind and inure to the benefitof the parties hereto and their successors and assigns. It is the intent of Lessor toassign any and all right, title and interest of Lessor in and to this Lease to theLenders and Lessee hereby acknowledges and agrees that the Lenders shall have any andall of the rights and remedies of Lessor subsequent to such assignment and that all ofthe covenants, duties and obligations of Lessee under this Lease shall run to and lorthe benefit of the Lenders to the same extent as if the Lenders were the original Lessorlie rein.
14.4 Severability. If any provision of this Lease or the application thereofto any party or circumstance be held invalid or unenforceable, the remainder ofLease and the application of such provisions to other parties or circumstances will notbe affected thereby and to this end the provisions of this Lease are declared to beseverable.
14.5 Controlling Law. This Lease shall be governed and construed Inaccordance with the laws of the Commonwealth of Pennsylvania.
14.6 Survival of Covenants, Conditions and Representations. Notwithstandingany provision to the contrary, all covenants, conditions and representations of Lesseecontained in this Lease Agreement which, by nature, Implledly or expressly involveperformance in any particular manner after delivery of the deed in accordance withSection 4.1 hereof or which cannot be ascertained to have been performed until aftersaid delivery shall survive said delivery.
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14.7 Compliance with Tax Laws. Lessee understands that the rate of interestspecified In the Mortgage Note was agreed upon on the expectation that it is not to beincluded In the gross Income of the holder(s) of the Mortgage Note, and that there willbe no change In the existing law adverse to the holder respecting reporting this incomefor state and federal income tax purposes. Lessee covenants and agrees that it shallnot Eake any action Inconsistent with the provisions of the Act, and Lessee shall takeall acts necessary to comply with, and refrain from all acts Inconsistent with, theprovisions of Section 103(b)(6) of the Internal Revenue Code of 1954, as amended, andany Regulations or Rulings which may be published thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executedall as of the day and year first above written.
ALL THAT CERTALN trace or piece of land, together with the improvementsthereon erected, situate on the Northerly side of Pennsylvania Traffic RouteNo. 562 leadJjng from Reading to Boyertown, being partly in the Township oCEarl and partly in the Township of Douglass, County of Berks and Common-wealth of Pennsylvania, more fully bounded and described as follows, Co wit:
BEGINNING at a point in Pennsylvania Traffic Route No. 562, in lineof land now or late of Erich S. Straube and Gordon John Straube; nhenceextending in and through said Pennsylvania Traffic Route No. 562, North 75degrees 39 minutes 4 seconds West, a distance of 211.45 feet to a point;thence leaving said road and extending along land now or late of C. S.Garber & Sons, Inc., the following five (5) courses and distances:(1) North 19 degrees 39 minutes 42 seconds East, a distance of 271.00feet to a point; (2) North 72 degrees 21 minutes 10 seconds West, adistance of 133.59 feet to an iron pin; (3) North 16 degrees 33 minutes40 seconds East, a distance of 100.00 feet to an iron pin; (4) North 54degrees 52 minutes 9 seconds East, a distance of 101.89 feet to a lightstandard; and (5) North 34 degrees 16 minutes 53 seconds East, a distanceof 1,064.85 feet to a point in Pennsylvania Township Route No. 597; thenceextending in and along said Pennsylvania Township Route No. 597, South 65degrees 52 minutes 11 seconds East, a distance of 297.66 feet to an ironpin; thence leaving said road and extending along land now or late ofEdwin B. Quigley and Anna D. Quigley, his wife, the following two (2)courses and distances: (1) South 24 degrees 7 minutes 49 seconds West,a distance of 150.00 feet to an iron pipe; and (2) South 65 degrees 52minutes 11 seconds East, a distance of 94.79 feet to an iron pipe; thenceextending along land now or late of Robert H. S. Wertman, the following two(2) courses and distances: (1) South 26 degrees 22 minutes 57 secondsWest, a distance of 576.16 .feet to a stone pile; and (2) North 71 degrees4 minutes 8 seconds East, a distance of 433.91 feet to an iron pin; thenceextending along land now or late of Warren M. Flicker and Lizzie B. Flicker,his wife, South 40 degrees 34 minutes 22 seconds East, a distance of 283.80feet to a point in Pennsylvania Township Route No. 484; thence extending inand through said Pennsylvania Township Route No. 484, South 51 degrees 5minutes 30 seconds West, a distance of 417.05 feet to a point; thence leavingsaid road and extending along land now or late of Walter M. Reigner and Knthryn NT.Reigner, his wife, the following two (2) courses and distances: (1) North 74degrees 30 minutes 40 seconds West, a distance of 345.42 feet to an iron pipe;and (2) South 15 degrees 29 minutes 20 seconds West, a distance of 120.24feet to an iron pipe; thence extending along land now or late of Paul R.Weidner and Betty V. Weidner, his wife, the following two (2) courses anddistances: (1) North 74 degrees 43 minutes 23 seconds West, a distance of147,37 feet to an iron pin; and (2) South 15 degrees 21 minutes 44 secondsWest, a distance of 150.00 feet to an iron pin; thence extending partly alongland now or late of Lester K. Greenly and Eleanora H. Greenly, his wife, and
EXHIBIT "A
partly along land now or late of Erich S. Straube and Gordon John Straube, North74 degrees 55 mixrutes 18 seconds West, a distance of 200.23 feet to an ironpipe; thence extending along land now or late of Erich S. Straube and GordonJohn Straube, South 15 degrees 4 minutes 42 seconds West, a distance of160.40 feet to the place of beginning.
CONTAINING in area 19.329 acres of land.
COMMONWEALTH OF PENNSYLVANIA:: ss.
COUNTY OF BERKS :
On this 14th day of July, 1982, before me, the subscriber, a Notary Public for
the State and County aforesaid, personally appeared BICHABI) E. Lie CJ-.I.OUOH_____( wha
acknowledged himself to be the Ch-a-tcacn or Vice-Chairman of BERKS COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, a Pennsylvania body corporate and politic, and that he, as such
officer, being authorized to do so, executed the foregoing Lease Agreement for the
purposes therein contained, by signing the name of said Authority by himself as such
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
EMKA KAUCIIER - ii.i:r/ p.jiicREADING, BERKS COUNTY, f-'A.
My Commission Expires January 4, 1986
-13-
AH200J75
COMMONWEALTH OF PENNSYLVANIA:: ss.
COUNTY OF BERKS :
On this 14th day of July, 1982, before nie, the subscriber, a Notary Public for
// 9 / -»the State and County aforesaid, personally appeared jfy£??,£/' c\ /kffu^_____________> who
acknowledged himself to be the President—en.- Vli-jesEiefriLtent of CRYOCHEM, INC. , a Penn-
sylvania business corporation, and that he, as such officer, being authorized to do so,
executed the foregoing Lease Agreement for the purposes therein contained, by signing
the name of said Corporation by himself as such officer.
IK WITNESS WHEREOF, I have hereunto set my hand and official seal.
- / /
Notary Public
My Commission Expires:
-14-
AR200I76
<• LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made this 14th day of July, 1982, by andbetween BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a public instrumentality of theCommonwealth of Pennsylvania and a body corporate and politic organized and existingunder the Pennsylvania Industrial and Commercial Development Authority Law (the"Lessor"), and CRYOCHEM, INC., a Pennsylvania corporation (the "Lessee"),
WITNESSETH:
WHEREAS, Lessor and Lessee have entered into an agreement of even date here-with (the "Project Agreement") with RUSSELL E. GARBER, SR. , CLAUDE W. GARBER andKATHRYN N. REIGNER (individually and collectively, the "Lenders") pursuant to which:
1. The parties to the Project Agreement have participated in the estab-lishment of an industrial development project (the "Project") under the provisions ofthe Pennsylvania Industrial and Commercial Development Authority Law, Act of August 23,1967, P.L. 251, as amended (the "Act");
2. The Lenders, for the benefit of Lessee, have or will have advanced amortgage loan to Lessor to enable Lessor to acquire certain land, with improvements (the"Premises") situate in the Township of Earl and the Township of Douglass, Berks County,Pennsylvania, more particularly described in Exhibit "A" hereto;
3. Lessor agreed to lease unto Lessee the Premises;
4. Lessor agreed to assign this Lease to the Lenders as security for theaforesaid mortgage loan advanced by the Lenders and evidenced by Lessor's mortgage noteof even date herewith (the "Mortgage Note").
NOW, THEREFORE, Lessor hereby demises and leases unto Lessee the Premises(hereinafter sometimes referred to as the "Leased Property"), subject to the followingterras and conditions:
SECTION 1. TERM
Unless sooner terminated pursuant hereto, the terra of this Lease (the "Term")shall be for a period of fifteen (15) years from the date hereof.
SECTION 2. USE OF LEASED PROPERTY | K
2.1 Primary Use. The primary use of the Leased Property shall be forIndustrial or commercial purposes. ! i—
2.2 Compliance with Laws. Lessee shall give or cause to be given all noticesand comply or cause compliance with all laws, ordinances, municipal rules andregulations and requirements of public authorities applying to or affecting the LeasedProperty and/or the conduct of the Project work and Lessee will defend and save Lessor,its officers, members, agents and employees, and the Lenders, harmless from all finesdue to failure to comply therewith.•
AR200177 EXHIBIT'L"
-1-
ALL THAT CERTAIN tract or piece of land, together with the improvementsthereon erected, situate on the Northerly side of Pennsylvania Traffic RouteNo. 562 leading from Reading to Boyertown, being partly in the Township ofEarl and partly in the Township of Douglass, County of Berks and Common-wealth of Pennsylvania, more fully bounded and described as follows, to wit:
BEGINNING at a point in Pennsylvania Traffic Route No. 562, in linoof land now or late of Erich S. Straube and Gordon John Straube; thenceextending in and through said Pennsylvania Traffic Route No. 562, Norch 75degrees 39 minutes 4 seconds West, a distance of 211.45 feet to a point;thence leaving said road and extending along land now or late of C. S.Garber & Sons, Inc., the following five (5) courses and distances:(1) Norch 19 degrees 39 minutes 42 seconds East, a distance of 271.00feet to a point; (2) North 72 degrees 21 minutes 10 seconds West:, adistance of 133.59 feet to an iron pin; (3) North 16 degrees 33 minutes40 seconds East, a distance of 100.00 feet to an iron pin; (4) North 54degrees 52 minutes 9 seconds East, a distance of 101.89 feet to a lightstandard; and (5) North 34 degrees 16 minutes 53 seconds East, a distanceof 1,064.85 feet to a point in Pennsylvania Township Route No, 597; thenceextending in and along said Pennsylvania Township Route No. 597, South 65degrees 52 minutes 11 seconds East, a distance of 297.66 feet to an ironpin; thence leaving said road and extending along land now or late ofEdwin B. Quigley and Anna D. Quigley, his wife, the following two (2)courses and distances: (1) South 24 degrees 7 minutes 49 seconds West,a distance of 150.00 feet to an iron pipe; and (2) South 65 degrees 52minutes 11 seconds East, a distance of 94.79 feet to an iron pipe; thenceextending along land now or late of Robert H. S. Wertman, the following two(2) courses and distances: (1) South 26 degrees 22 minutes 57 secondsWest, a distance of 576.16 feet to a stone pile; and (2) North 71 degrees4 minutes 8 seconds East, a distance of 433.91 feet to an iron pin; thenceextending along land now or late of Warren M. Flicker and Lizzie B. Flicker,his wife, South 40 degrees 34 minutes 22 seconds East, a distance of 283.SOfeet to a point in Pennsylvania Township Route No. 484; thence extending inand through said Pennsylvania Township Route No. 484, South 51 degrees 5minutes 30 seconds West, a distance of 417.05 feet to a point; thence leavingsaid road and extending along land now or late of Walter M. Reigner and Knthryn X.Reigner, his wife, the following two (2) courses and distances: (1) North 74degrees 30 minutes 40 seconds West, a distance of 345.42 feet to an Iron pipe;and (2) South 15 degrees 29 minutes 20 seconds West, a distance of 120.26feet to an Iron pipe; thence extending along land now or late of Paul R.Weidner and Betty V. Weidner, his wife, the following two (2) courses anddistances: (1) North 74 degrees 43 minutes 23 seconds West, a distance of147.37 fee£ to an iron pin; and (2) South 15 degrees 21 minutes 44 secondsWest, a distance of 150.00 feet to an iron pin; thence extending partly alongland now or late of Lester K. Greenly and Eleanora H. Greenly, his wife, and
EXHIBIT "A" AR200I78
partly along land now or late of Erich S. Straube and Gordon John Straube, North74 degrees 55 minutes 18 seconds West, a distance of 200.23 feet to an Ironpipe; thence extending along land now or late of Erich S. Straube and GordonJohn Straube, South 15 degrees 4 minutes 42 seconds West, a distance of160.40 feet to the place of beginning.
CONTAINING in area 19.329 acres of land.
AR200179
COMMONWEALTH OF PENNSYLVANIA::ss.
COUNTY OF BERKS :
On this 14th day of July, 1982, before me, the subscriber, a Notary Public for
ny - y/ -the State and County aforesaid, personally appeared / /fcr J ex At Ilk,____» who
acknowledged himself to the President .j ..Vico-PrPCideat of CRYOCHEM, INC., a
Pennsylvania business corporation, and that he as such officer, being authorized to do
so, executed the foregoing Memorandum of Lease for the purposes therein contained, by
signing the name of said Corporation by himself as such officer.
IK WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
EMMA KAUCI.'ti? - f!:f:rv PublufREADING, Sin.w COL'..,'1.. i'A,
My Commission Expires Ja.iucry 4. i^G
•
AR200
COMMONWEALTH OF PENNSYLVANIA::ss.
COUNTY OF BERKS :
On this 14th day of July, 1982, before me, the subscriber, a Notary Public for
. „ j ,_ c . , , E. uothe State and County aforesaid, personally appeared _________________ , who
acknowledged himself to be the £b Ef=nncm=M>r Vice-Chairman of BERKS COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, a Pennsylvania body corporate and politic, and that he as such
officer, being authorized to do so, executed the foregoing Memorandum of Lease for the
purposes therein contained, by signing the name of said Authority by himself as such
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
A ic x es J-:._3?y 4, 1SS6
MEMORANDUM OF LEASE
KNOW ALL MEN BY THESE PRESENTS, that BERKS COUNTY INDUSTRIAL DEVELOPMENTAUTHORITY (the "Authority"), a body corporate and politic with offices at 529 CourtStreet, Reading, Pennsylvania, as lessor, has entered into a certain Lease Agreementbearing even data herewith with CRYOCHEM, INC. , a Pennsylvania business corporation,whose address Is P. 0. Box 32, Boyertown, Pennsylvania 19512, covering the letting ofcertain premises as more fully described in Exhibit "A" attached hereto and incorporatedherein by reference thereto together with the Improvements situate thereon; the term ofsaid Lease Agreement to end fifteen (15) years from the date hereof, or as otherwiseprovided therein, unless terminated prior thereto in accordance with the terms of saidLease Agreement. The rights of Berks County Industrial Development Authority under saidLease Agreement have been assigned to Russell E. Garber, Sr., Claude W. Garber andKathryn N. Reigner, adult Individuals. Under said Lease Agreement, the Lessee has beengranted an option to purchase the Leased Property.
UNDER AMD SUBJECT to all restrictions, covenants and conditions created by thesaid Lease Agreement.
THIS MEMORANDUM Is Intended for recording purposes only, and does not super-sede, diminish, add to or change the terms of the said Lease Agreement referred toabove.
IN WITNESS WHEREOF, the parties hereto have caused these presents to beexecuted as of this 14th day of July, 1982.
CONTY INDUSTRIAL DEVELOPMENT AUTHORITY
Attest:Assistant Secretary
CYROCHEM, INC,
By:President or Vice-President'
Attest/Secretary jar Assistant Secretary
ft
3. All payments received by the Lenders pursuant to Paragraph 2 of tliisAssignment shall be applied on account of principal and Interest payable on and £--provided in the Mortgage Note.
4. Until the Authority pays to the Lenders the principal of the MortgageNote, and all other sums payable thereunder and under the Mortgage of even date herewithfrom the Authority to the Lenders (the "Mortgage"), the Authority covenants and cgreesto perform every obligation of the Authority and to enforce every obligation of theInvestor-Developer under the Lease, not to modify, alter, waive or cancel the Lease orany part thereof, and, upon default under the Lease, to give prompt notice thereof tothe Lenders and, without the prior written consent of the Lenders, not to exorcise anyof the remedies provided by Section 11 of the Lease.
5. If the Authority pays to the Lenders the principal of the Mortgage Note,and all other sums payable thereunder and under the Mortgage, then and from thence forththis Assignment, and the estate hereby granted, shall cease and becorae void, anythingherein contained to the contrary notwithstanding and the Lenders shall execute anddeliver to the Authority appropriate instruments in evidence thereof.
6. All notices hereunder shall be in writing and shall be effective onlywhen delivered or sent by registered or certified mail, return receipt requested, asfollows:
(a) To the Authority:
Berks County Industrial Development AuthorityBaer Building, Room 501529 Court StreetReading, Pennsylvania 1960 L
(b) To the Lenders:
Mrs. Kathryn N. Reigner40 West Second StreetBoyertown, Pennsylvania 19512
Mr. Russell E. Garber, Sr.Box 82, R. D. #2Boyertown, Pennsylvania 19512
Mr. Claude W. GarberBox 82, R. D- #2Boyertown, Pennsylvania 19512
AR200I83
With copy to:
Ralph E. Mararchi, EsquireBluestein, Mararchi & Susraan, P. C.1200 Two Penn Center PlazaPhiladelphia, Pennsylvania 19102
7. Notwithstanding anything to the contrary contained in this Assignment,the Authority's liability under this Assignment shall be enforceable only out of thereal estate and property covered by the Mortgage and the Security Agreement of even dateherewith among the Authority, the Investor-Developer and the Lenders, and the rents,issues and profits thereof and other property assigned or to be assigned and madepayable to, or pledged with the Lenders as security for the payment by the Authority ofthe Mortgage Note, and there shall be no other recourse against the Authority or anymember, officer or employee, past, present or future, of the Authority, or any otherproperty now or hereafter owned by It or them.
IN WITNESS WHEREOF, the Authority has caused this Assignment to be dulyexecuted and acknowledged as of the day and year first above written.
BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
Attest:Assistant Secretary
-3- •AR20018U
CONSENT OF LESSEE TO ASSIGNMENT
The undersigned hereby approves and consents to the foregoing Assignment andagrees to be bound by the terms thereof. Further, the undersigned, INTENDING TO B£LEGALLY BOUND, agrees that until the Mortgage Note referred to in the Assignment is paidin full, and until the Berks County Industrial Development Authority fully performs allof its other obligations under the Mortgage, the Project Agreement and the RelatedDocumentation (all as more fully defined in the Assignment), the undersigned shall notassert with respect to the Lease (as that term is defined in the Assignment), but liurebywaives in favor of Russell E. Garber, Sr. , Claude W. Garber and Kathryn N. Reigner anyright of defalcation, counterclaim, setoff, demand or other defense, and will pay infull and perform all obligations of the undersigned contained in the Lease according tothe terms thereof and the terras of the above Assignment and any other documents executedin connection with this Project as described in the Project Agreement notwithstandingany default whatsoever on the part of the Berks County Industrial Development Authorityand whether or not such defalcation, counterclaim, setoff, demand or defense arisesunder the Lease or otherwise, excepting only the defense of actual payment to the personthen designated to receive said payment pursuant to the Lease and the above Assignmentthereof.
IN WITNESS WHEREOF, the undersigned has caused these presents to be executedthis 14th day of July, 1982,
CRYOCHEM, INC.
By:president or Vice-President
At t esSecre t a rv/o/ Ass infant Secretary
-4-
AR200185
A1_L THAT CERTAIN tract or piece of land, together with the improvementsthereon erected, situate on the Northerly side of Pennsylvania Traffic RouteNo. 562 leading from Reading to Boyertown, being partly in the Township ofEarl and partly in the Township of Douglass, County of Series and Ccnrnon-wealth of Pennsylvania, more fully bounded and described as follows, to wit:
BEGINNING at a point in Pennsylvania Traffic Route No. 562, in lineof land now or late of Erich S. Straube and Gordon John Sti'aube; thenceextending in and through said Pennsylvania Traffic Route No. 562, North 75degrees 39 minutes 4 seconds West, a distance of 211.45 feet to a point;thence leaving said road and extending along land now or late of C. S.Garber & Sons, Inc., the following five (5) courses and distances:(1) North 19 degrees 39 minutes 42 seconds East, a distance of 271.00feet to a point; (2) North 72 degrees 21 minutes 10 seconds West, adistance of 133.59 feet to an iron pin; (3) North 16 degrees 33 minutes40 seconds East, a distance of 100.00 feet to an iron pin; (4) North 54degrees 52 minutes 9 seconds East, a distance of 101.89 feet to a lightstandard; and (5) North 34 degrees 16 minutes 53 seconds East, a distanceof 1,064.85 feet to a point in Pennsylvania Township Route No. 597; thenceextending in and along said Pennsylvania Township Route No. 597, South 65degrees 52 minutes 11 seconds East, a distance of 297.66 feet to an ironpin; thence leaving said road and extending along land now or late ofEdwin B. Quigley and Anna D. Quigley, his wife, the following two (2)courses and distances: (1) South 24 degrees 7 minutes 49 seconds West,a distance of 150.00 feet to an iron pipe; and (2) South 65 degrees 52minutes 11 seconds East, a distance of 94.79 feet to an iron pipe; thenceextending along land now or late of Robert H. S, Wertman, the following two(2) courses and distances: (1) South 26 degrees 22 minutes 57 secondsWest, a distance of 576.16 feet to a stone pile; and (2) North 71 degrees4 minutes 8 seconds East, a distance of 433.91 feet to an iron pin; thenceextending along land now or late of Warren M. Flicker and Lizzie B. Flicker,his wife. South 40 degrees 34 minutes 22 seconds East, a distance of 283.80feet to a point in Pennsylvania Township Route No. 484; thence extending inand through said Pennsylvania Township Route No. 484, South 51 degrees 5minutes 30 seconds West, a distance of 417.05 feet to a point; thence leavingsaid road and extending along land now or late of Walter M. Reigner and KathrynReigner, Ms wife, the following two (2) courses and distances: (1) North 74degrees 30 minutes 40 seconds West, a distance of 345.42 feet to an iron pipe;aid (2) South 15 degrees 29 minutes 20 seconds West, a distance of 120.24feet to an iron pipe; thence extending along land now or late of Paul R.Weidner and Betty V. Weidner, his wife, the following two (2) courses anddistances: (1) North 74 degrees 43 minutes 23 seconds West, a distance of147.37 feet to an iron pin; and (2) South 15 degrees 21 minutes 44 secondsWest, a distance of 150.00 feet to an iron pin; thence extending partly alongland now or late of Lester K. Greenly and Eleanora H. Greenly, his wife, and
AR200I86EXHIBIT "A"
partly along land now or late of Erich S. Straube and Gordon John Straube, North74 degrees 55 minutes 18 seconds West, a distance of 200.23 feet to an ironpipe; thence extending along land now or late of Erich S. Straube and GordonJohn Straube, South 15 degrees 4 minutes 42 seconds West, a distance of160.40 feet to the place of beginning.
CONTAINING in area 19.329 acres of land.
AR200I87
COMMONWEALTH OF PENNSYLVANIA:: ss.
COUNTY OF BERKS :
On this 14th day of July, 1982, before me, the subscriber, a Notary Public for
* n j iRTCTL' D E. WcCULLOUGE T.the State and County aforesaid, personally appeared ____UMI,- -; ______________> wno
acknowledged himself to be the a Htimia-n o-r*Vice-Chairman of BERKS COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, a Pennsylvania body corporate and politic, and that he, as such
officer, being authorized to do so, executed the foregoing Assignment for the purposes
therein contained, by signing the name of said Authority by himself as such officer.
IN WITNESS WHEREOF. I have hereunto set ray hand and official seal.
On this 14th day of July, 1982, before me, the subscriber, a Notary Public for
the State and County aforesaid, personally appeared ____X /r/,/ & />.Lt'^*________- who-7* j*-=-
acknowledged himself to be the President nr Virp-Prpcfd.e_g|" of CRYOCHEK, INC. , a
Pennsylvania business corporation, and that he, as such officer, being authorized to do
so, executed the foregoing Consent of Lessee to Assignment for the purposes therein
contained, by signing the name of said Corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
EMMA KAUC;;E!? - ;?.,..,REAO.NG. KKlscjJ.,:.-
My Commission Expires January 4.'
-6-
flR200i89
ASSIGNMENT
THIS ASSIGNMENT made this 14th day of July, 1982, from BERKS COUNTY INDUSTRIALDEVELOPMENT AUTHORITY, a body corporate and politic organized and existing under thelaws of the Commonwealth of Pennsylvania (the "Authority") to RUSSELL E. GARBER, SR. ,CLAUDE W. GARBER and KATHRYN N. REIGNER, adult Individuals (individually andcollectively, the "Lenders").
WITNESSED!:
WHEREAS, CRYOCHEM, INC., a Pennsylvania business corporation, (the "Investor-Developer"), the Authority and the Lenders have entered into an Industrial/CommercialProject Agreement (the "Project Agreement") of -even date herewith pursuant to which theLenders have granted to the Authority for the benefit of the Investor-Developer amortgage loan In the total amount of Five Hundred Eighty Thousand and 00/100 Dollars($580,000.00) evidenced by the Authority's promissory note bearing even date herewith(the "Mortgage Note"); and
WHEREAS, the Authority has or will have acquired title to certain premises,together with the improvements situate thereon, situate in the Township of Earl and theTownship of Douglass, Berks County, Pennsylvania, more particularly described InExhibit. "A" hereto (said premises together with the Improvements thereon beinghereinafter Individually and collectively referred to as the "Leased Property"), and hasor will have leased the Leased Property to the Investor-Developer under a LeaseAgreement of even date herewith (such Lease Agreement and any amendment or supplementthereto, together with any other lease from the Authority to the Investor-Developerrelating Co any portion of the Leased Property, being hereinafter collectively referredto as the "Lease").
NOW, THEREFORE, In consideration of the aforesaid mortgage loan and assecurity for the payment of all principal and accrued interest thereon and the per-formance of all other obligations of the Authority under the Mortgage Note, the ProjectAgreement and all of the other documents referred to in Section 1.2 of the ProjectAgreement (the "Related Documentation"), as well as in further consideration of the sumof One and 00/100 Dollar ($1.00) to the Authority in hand paid by the Lenders, thereceipt whereof Is hereby acknowledged, the Authority has assigned, transferred and setover unto, and by these presents does hereby assign, transfer and set over unto theLenders, all of the Authority's rights (but none of Its duties or obligations), titleand interest In, to and under the Lease.
TO HAVE AND TO HOLD said assigned rights, title and interest to their own useforever under and subject to the following terras and conditions:
1. All of the terms and provisions of the Mortgage Note, the ProjectAgreement and the Related Documentation are incorporated herein by reference thereto andshall be given full force and effect as if set forth herein In their entirety.
2. The Authority has directed the Investor-Developer and the latter hasigrecd CO make the (a) monthly payments of Basic Rent, (b) the Option Price and (c) anyrepayments of rent under the Lease, directly to the Lenders*
— I — flR200i90
date of the Taxable Event by a number equal to the number of payments then remainingabove plus twenty-four (24), with all then outstanding principal and accrued interestbecoming due and payable on the first day of the month following the last such payment.
For purposes hereof Interest shall be declared or determined to be Inclinablein the income of the Lenders for purposes of federal income taxation upon (a) theeffective date of a statute or a regulation eliminating the presently applicableexemption for Interest payable under this Mortgage Note, or (b) the date of adetermination by decision or ruling by a judicial authority to the effect that suchexemption is not available or is no longer available or Is contrary to law, or (c) thedate as of which the Internal Revenue Service or an agent thereof asserts In writingthat such interest Is or was taxable to the Lenders or takes any other official acclon(Including the issuance of a statutory notice of deficiency, th6 denial of a claim forrefund, or the assessment of any tax) the effect of which is to assert against or ioposeupon the Lenders a tax attributable to the Lenders' receipt of (or right to receive)such interest.
This Mortgage Note has been issued by the Authority to aid in the financing ofa project to accomplish the public purposes of the Pennsylvania Industrial and Commer-cial Development Authority Law.
This Mortgage Note Is the Mortgage Note referred to In Section 1.2 of thi*Industrial/Commercial Project Agreement of even date herewith among the Lenders, theAuthority and CRYOCHEM, INC. (the "Investor-Developer"), and is entitled to the benefitsthereof and the security referred to therein, including but not limited to the Mortgagebearing even date herewith from the Authority to the Lenders (the "Mortgage").
This Mortgage Note is not a general obligation of the Authority and Is payablesolely from the following sources:
(a) Rental revenues and other amounts payable to the Authority under theLease Agreement of even date herewith between the Authority, as lessor, and theInvestor-Developer, as lessee, pertaining to the leasing of certain premisessituate in the Township of Douglass and the Township of Earl, Berks County,Pennsylvania (the "Lease"); and
(b) In the event that there shall occur an event of default under and asprovided in the Lease, the Authority's net revenues from the lease, operation orsale of the property being leased under the Lease.
In the event judgment is entered upon this Mortgage Note against the Authority, theprothonotary or clerk of the court shall make appropriate notation in the judgment indexof this limitation. NEITHER THE GENERAL CREDIT NOR THE TAXING POWER OF BERKS COUNTY ORTHE COMMONWEALTH OF PENNSYLVANIA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED FOR THEPAYMENT OF THIS MORTGAGE NOTE, NOR SHALL THIS MORTGAGE NOTE BE DEEMED AN OBLIGATION OFBERKS COUNTY OR THE COMMONWEALTH OF PENNSYLVANIA OR ANY POLITICAL SUBDIVISION THEREOF.
No recourse shall be had for any payment in respect of the principal of orInterest on this Mortgage Note, or for any claims based hereon or on any Instrument oragreement connected herewith against any member, officer or employee, past, present or
-2-
A R 2 Q Q I 9
>uEnfuture, of the Authority or of any successor body, as such, either directly or througrthe Authority or any such successor body, under any constitutional provision, statute orrule of law, or by the enforcement of any assessment or by any legal or equitable pro-ceeding or otherwise.
This Mortgage Note may be prepaid in'whole or In part, and from time to time,without premium or penalty therefor; provided, that the Authority shall pay or cause tobe paid along with any such prepayment all unpaid accrued Interest on the acnount(s) soprepaid.
If the Authority shall fall to pay the Interest on or principal of this Mort-gage Note within fifteen (15) days after the same becomes due, or if an event of defaultunder the Lease shall occur as provided therein, then, and at any time thereafter,unless and until the default shall have been cured or shall have been waived by theLenders, the Lenders, by written notice to the Authority, may declare this Mortgage Noteto be due and payable at any time and may proceed to enforce payment of this MortgageNote either by suit In equity or by action at law, or both. For this purpose, theAuthority hereby empowers any attorney of any court of record within the United Statesof America or elsewhere to appear for the Authority and, with or without declaration,enter judgment or judgments against it in favor of the Lenders for Five Hundred EightyThousand and 00/100 Dollars ($580,000.00) together with unpaid taxes, charges, claims,assessments, sewer reats, water rents, insurance premiums, other charges provided to bepaid under the Mortgage, costs of suit and attorneys1 fees of ten percent (10%) forcollection, and interest accrued on the unpaid principal balance and on all moniesadvanced by the Lenders to pay any such charges, at the rate per annum from time toprevailing on this Mortgage Note. To the extent permitted by applicable law, theAuthority hereby waives Inquisition and condemnation of any property that may be leviedupon by virtue of any execution which may Issue forthwith upon such confession ofjudgment, and further waives all errors in said proceedings, together with stay of orexemption from execution or extension of time of payment which may be given by anystatute now in force or which may be enacted hereafter, or by any usage or custom. Nosingle exercise of the foregoing power to confess a judgment, or a series of judgments,shall be deemed to exhaust the power, whether or not any such exercise shall be held byany court Co be valid, voidable, or void, but the power shall continue undirainlshed andIt may be exercised from time to time as often as the holder hereof shall elect untilsuch time as the holder shall have received payment in full of the debt, sums paid,Interest and costs.
Presentment for payment, demand, notice of dishonor, protest and notice ofprotest hereby are waived by the Authority and all endorsers hereof.
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This Mortgage Note shall be construed and enforced In accordance with the lawsof the Commonwealth of Pennsylvania.
v.BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTKOfltTY
By\ vv.VA? .K,C w\Chairman, or Vice-Chairman
ecretary or Assistant Secretary
-4-
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MORTGAGE NOTE
$580,000.00 July 14, 1982
FOR VALUE RECEIVED, without defalcation, BERKS COUNTY INDUSTRIAL DEVELOPMENTAUTHORITY (the "Authority") hereby promises to pay (but only from the sources referredto hereinafter), to the order of RUSSELL E. GARBER, SR. , CLAUDE W. GARBER and KATHRYN N.REIGNER (the "Lenders") the principal sum of Five Hundred Eighty Thousand and 00/100Dollars ($580,000.00), with interest on the unpaid principal balance thereof at a rate(herein called the "Tax Free Rate") of twelve percent (12%) per annum, said principaland interest to be repaid In one hundred seventy-nine (179) consecutive Installments ofSix Thousand Hlne Hundred Sixty and 97/100 Dollars ($6,960.97) each, commencing one (1)month from the date hereof, with a final monthly payment equal to the entire unpaidprincipal balance together with all unpaid accrued Interest thereon to be due andpayable on *" \A VX > 1997. All monthly payments shall be applied first toInterest attKe ra&e hereinabove set forth and the balance to the unpaid principal.
Notwithstanding any provision hereof to the contrary, If (a) interest paid orpayable hereunder becomes includable In the gross income of the Lenders for purposes offederal Income taxation as a result of any change in the Internal Revenue Code of 1954,as amended to date (che "Code"), or in the regulations promulgated under the Code ineffect on the date hereof, or In the provisions of the Industrial and CommercialDevelopment Authority Law, or (b) Interest paid or payable hereunder shall be declaredor determined to be includable In the gross income of the Lenders for purposes offederal Income taxation (either of which Is hereinafter called the "Taxable Event"):(1) this Mortgage Note shall thereafter bear Interest at a rate (which rate is hereincalled Che "Taxable Rate") per annum which shall be two percent (2%) In excess of thePrime Rate, (defined as the interest rate from time to time announced to be In effect bythe Continental Bank, from which the Bank determines the interest rate to be charged onborrowings by Its larger business customers), such rate to change automatically fromtime to time, effective as of the effective date of such change In the Prime Rate; (2)the Authority will pay to Lenders on demand, notwithstanding that this Mortgage Note mayhave been paid in full prior to such declaration or determination, the differencebetween (a) the amount of Interest which the Authority would have paid if this MortgageNote had borne Interest at the Taxable Rate during the entire period that interest Istaxable, and (b) Interest paid at the Tax Free Rate; and (3) Interest at the TaxableRate on the unpaid principal balance shall be due and payable monthly, commencing withthe first day of the month following the Taxable Event and on the first day of eachmonth thereafter. If the Taxable Event occurs prior to the commencement of payments ofprincipal and interest under the preceding paragraph, principal shall be due and payablemonthly In one hundred eighty (180) equal, successive Installments, commencing on thedate specified for the commencement of payments of principal and interest above, withall then outstanding principal and accrued interest due and payable on the first (1st)day of the month following the last such payment. If the Taxable Event occurssubsequent to the commencement of payments of principal and Interest under the precedingparagraph, the unpaid principal balance as of the date of the Taxable Event shall be dueand payable In equal, successive monthly installments commencing on the first (1st) dayof the month following the Taxable Event and continuing to and including the date of thelast payment of principal and Interest otherwise called for above, with the amount ofeach such payment calculated by dividing the outstanding principal balance as of the
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AR2Q0191*
INDUSTRIAL/COMMERCIAL PROJECT AGREEMENT
THIS INDUSTRIAL/COMMERCIAL PROJECT AGREEMENT (the "Agreement") made this 14thday of July, 1982 among BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Authority"),a body corporate and politic organized under Pennsylvania law; CRYOCHEM, INC. (the"Investor-Developer"), a Pennsylvania business corporation; and RUSSELL E. GARBER, SR. 9CLAUDE W. GARBER and KATHRYN N. REIGNER (individually and collectively, the "Lenders"),adult Individuals.
WITNESSETH:
WHEREAS, the Authority was organized under the Pennsylvania Industrial andCommercial Development Authority Law, Act No. 102, August 23, 1967 (73 P. S. 371 et seq.)(the "Act") for the purpose of alleviating unemployment, maintaining employment at ahigh level and creating and developing business opportunities in Berks County; and
WHEREAS, the Investor-Developer has asked the Authority to undertake a project(the "Project") consisting of the acquisition of certain land, with improvements(collectively, the "Premises") situate in the Township of Earl and the Township ofDouglass, Berks County, Pennsylvania, and the Investor-Developer has represented thatsuch undertaking will not cause the removal of a manufacturing, industrial, commercialor research facility from any area of Pennsylvania.
NOW, THEREFORE, the parties hereto, INTENDING TO BE LEGALLY BOUND HEREBY,ewith agree as follows:
SECTION 1. THE CLOSING
All transactions at closing shall be deemed to take place concurrently and notransaction shall be final until all are completed.
1.1 Date; Place. The closing shall take place on such date as the Investor-Developer shall designate in writing to the Authority and Lenders not less than ten (10)days prior thereto. The closing shall take place at the office of the Authority, 529Court Street, Reading, Berks County, Pennsylvania, or any other mutually agreed uponlocation.
1.2 Necessary Actions. The following transactions shall take place at clos-ing:
(a) The Investor-Developer shall convey or cause to be conveyed unto theAuthority the Premises, title to which shall be good, marketable and free of allliens and encumbrances.
(b) The Authority shall lease the Premises to the Investor-Developerpursuant to a Lease Agreement (the "Lease") substantially in the form ofExhibit "A" to this Agreement.
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(c) The Authority shall assign to Lenders all of the Authority's right,title and Interest under the Lease pursuant to an assignment (the "Assignment")substantially in the form of Exhibit "B" to this Agreement.
(d) The Authority and the Investor-Developer shall execute a Memorandumof the Lease (the "Memorandum") substantially in the form of Exhibit "C" to thisAgreement.
(e) The Authority shall grant to Lenders a mortgage on the Premises (the"Mortgage") substantially in the form of Exhibit "D" to this Agreement.
(f) The Authority shall execute and deliver to Lenders the Authority'spromissory note In the amount of Five Hundred Eighty Thousand and 00/100 Dollars($580,000.00) (the "Mortgage Note") substantially in the form of Exhibit "E" tothis Agreement.
(g) The Investor—Developer shall execute a consent (the "Consent") tothe Assignment.
(h) The Investor-Developer shall pay to Lenders all costs and expensespertaining to this Agreement and the transactions contemplated hereby and settle-ment pertaining hereto and thereto, including but not limited to Lendersfs counselfees, filing fees, recording fees, appraisal fees and inspection fees.
(i) The Investor-Developer shall pay to the regular counsel for theAuthority its fee In the amount of Two Thousand Five Hundred and 00/100 Dollars($2,500.00).
(j) The Investor-Developer shall pay to the Authority an administrationfee In the amount of Three Thousand Eight Hundred and 00/100 Dollars ($3,800.00).
(k) The Investor-Developer shall cause to be executed and delivered totenders an opinion letter (the "Investor-Developer Opinion Letter"), whichInvestor-Developer Opinion Letter shall be executed by a duly qualified attorney-at-law licensed to practice In the Commonwealth of Pennsylvania, In form and sub-stanco reasonably satisfactory to Lenders.
(1) The Authority shall cause to be executed and delivered to Lenders anopinion letter (the "Authority Opinion Letter"), which Authority Opinion Lettershall be executed by a duly qualified attorney-at-law licensed to practice in theCommonwealth of Pennsylvania, in form and substance reasonably satisfactory toLenders.
SECTION 2. CONDITIONS OF BORROWING
Prior to the making of any advances in connection with the Project, thefollowing conditions shall have been complied with:
(a) The Authority and the Investor-Developer shall have completedsettlement for the purchase and conveyance of the Premises.
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(b) The Authority and the Investor-Developer shall have executed theLease and the Memorandum.
(c) The Authority shall have executed and delivered to Lenders the Hort-gage, the Mortgage Note and the Assignment.
(d) The Investor-Developer shall have executed and delivered to Lendersthe Consent.
(e) The Investor-Developer shall have delivered to Lenders theInvestor-Developer Opinion Letter and the Authority shall have delivered to Lendersthe Authority Opinion Letter.
(f) The Secretary of the Authority shall have certified and delivered toLenders on the date of closing the resolutions of the Authority authorizing andapproving the execution, delivery and performance of this Agreement and all of thedocuments referred to in Section 1.2 hereof on the part of the Authority to beexecuted, delivered and/or performed (the "Authority's Related Documents").
(g) The Secretary of the Investor-Developer shall have certified anddelivered to Lenders on the date of closing the resolutions of the Investor-Developer authorizing and approving the execution, delivery and performance of thisAgreement and all of the documents referred to In Section 1.2 hereof on the part ofthe Investor-Developer to be executed, delivered and/or performed (the "Investor-Developer's Related Documents").
(h) The Secretary of Commerce, Commonwealth of Pennsylvania, shall haveapproved the Project.
(i) The Investor-Developer shall have caused to be executed anddelivered to Lenders a title insurance policy in an amount, in such form and withsuch company or companies as shall be reasonably acceptable to Lenders, togetherwith such endorsements as Lenders shall reasonably require, which title insurancepolicy shall insure the Mortgage as a first lien upon the Premises, and such titleinsurance policy shall remain In effect.
(j) All legal matters incident to the transactions contemplated by thisAgreement shall be satisfactory to counsel to the Authority and counsel to Lenriers.
(k) There shall not have occurred an event of Default under and asprovided in the Lease.
(1) The representations and warranties of the Investor-Developer con-tained In Section 3 of this Agreement shall be true and correct on and as of thedate of the making of each advance with the same effect as if made on and as ofsuch date.
(m) The representations and warranties of the Authority contained inSection 4 of this Agreement shall be true and correct on and as of the date of themaking of each advance with the same effect as if made on and as of such date.
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SECTION 3. REPRESENTATIONS AND WARRANTIES: INVESTOR-DEVELOPER
In order to Induce Lenders and the Authority to enter into this Agreement andto Induce Lenders to make advances in connection with this Project, the Investor-Developer represents and warrants to Lenders and the Authority that:
3*1 Organization; Corporate Existence. The Investor-Developer is a corpora-tion duly organized, valldly existing and in good standing under the laws of theCommonwealth of Pennsylvania.
3.2 Power and Authority. The Investor-Developer has the power, corporate andotherwise, to execute, deliver and perform this Agreement and the Investor-Developer'sRelated Documents, and has taken all necessary action to authorize the execution,delivery and performance of this Agreement and the Investor-Developer's RelatedDocuments. This Agreement constitutes, and the Investor-Developer's Related Documents,when executed and delivered pursuant to the provisions of this Agreement, willconstitute valid obligations of the Investor-Developer legally binding upon it andenforceable in accordance with their respective terms.
3.3 No Legal Bar. The execution, delivery and performance of this Agreementand/or the Investor-Developer's Related Documents will not violate or contravene anyprovision of any existing law or regulation or decree of any court, governmentalauthority, bureau or agency having jurisdiction In the Premises or of any othermortgage, Indenture,. security agreement, contract, undertaking or other agreement towhich the Investor-Developer Is a party or which purports to be binding upon it or anyof its properties or assets, and will not result in the creation or imposition of anylien, charge or encumbrance on, or security interest in, any of its properties or assetlpursuant to the provisions of any such other mortgage, indenture, security agreement,contract, undertaking or other agreement. No consent of any other party and no consent,license, approval or authorization of, or registration or declaration with, anygovernmental authority, bureau or agency (which has not already been secured) isrequired In connection with the execution, delivery, performance, validity or enforce-ablltty of this Agreement and/or the Investor-Developer's Related Documents.
3.4 No Material Litigation. There are no actions, suits or proceedings(whether or not purportedly on behalf of the Investor-Developer) pending or, to theknowledge of the Investor-Developer, threatened (a) with respect to any of the trans-actions contemplated by this Agreement, or (b) against or affecting the Investor-Developer or any of Its properties which, if adversely determined, would have a materialadverse effect upon the financial condition, business or operations of the Investor-Developer.
3.5 Financial Condition. Any financial statements which have heretofore beendelivered to the Authority and/or to Lenders by or on behalf of the Investor-Developer,are true and correct and presently fairly, accurately and completely the financialposition of the Investor-Developer as of the date of said financial statements. Allsuch financial statements have been prepared in accordance with generally acceptedaccounting principles and practices applied on a consistent basis. Except as disclosedla said financial statements, the Investor-Developer did not have any contingentliabilities (other than current purchase commitments and other contracts made or
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preclude any other or future exercise thereof or the exercise of any other right, poweror privilege. The rights and remedies herein and therein provided are cumulative andnot exclusive of any rights and remedies provided by law or in equity.
5.2 Notices. All notices, requests and demands to or upon the respectiveparties hereto shall be deemed to have been given or made when deposited in the mails,postage prepaid, registered or certified mail, return receipt requested, and deliveredto the addressee, or, in the case of telegraphic notice, when delivered to the telegraphcoraany, addressed as follows or to such other address as may be hereafter designated inwriting by the respective parties hereto:
(a) The Authority:
Berks County Industrial Development AuthorityBaer Building, Room 501529 Court StreetReading, Pennsylvania 19601
(b) The Investor-Developer:
CryoChem, Inc.P. 0. Box 32Boyertown, Pennsylvania 19512Attention: Mr. Anthony Calzolaio
(c) The Lenders:
Mrs. Kathryn N. Reigner40 West Second StreetBoyertown, Pennsylvania 19512
Mr. Russell E. Garber, Sr.Box 82, R. D. #2Boyertown, Pennsylvania 19512
Mr. Claude W. GarberD»i*-eg-, R. D. #2Boyertown, Pennsylvania 19512
With copy to:
Ralph E. Mararchi, EsquireBluestein, Mararchi & Susraan, P. C.1200 Two Penn Center PlazaPhiladelphia, Pennsylvania 19102
5.3 Successors; Assignment. This Agreement shall be binding upon and inureto the benefit of Lenders, the Authority and the Investor-Developer and their respectiveheirs, personal representatives, successors and assigns, except that the Investor-Developer and the Authority may not assign or transfer their respective rights hereunder
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and/or under any of the documents referred to in Section 1.2 hereof without the priorwritten consent of Lenders. Lenders, at their option, may assign the Mortgage Note, theMortgage and their rights under any of the other documentation referred to In Section1.2 hereof to another or others or may sell participations in the mortgage loanconnected with the Project to another or others without giving notice to or securing thepermission or approval of the Authority or the Investor-Developer.
5.4 Construction. This Agreement and the related documentation referred toIn Section 1.2 hereof, and the rights and obligations of the parties hereunder andthereunder, shall be governed by, and construed and interpreted in accordance with, thelaws of the Commonwealth of Pennsylvania.
5.5 Limitation of Authority^ Liability. Notwithstanding anything to thecontrary contained herein and/or in any of the documents referred to in Section 1.2hereof, the Authority's liability under this Agreement and under any and all of thedocuments referred to in Section 1.2 hereof, shall be enforceable only out of the realestate and property covered by the Mortgage and the rents, issues and profits thereofand other property assigned or to be assigned and made payable to, or pledged withLenders as security for, the indebtedness connected with the Project, and there shall beno other recourse against the Authority or any memberr officer or employee, past,
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present or future, of the Authority, or any other property now or hereafter owned by Itor them.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beexecuted all as of the day and yo.ar first above written.
BERKS COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
Attest: _ .__ ______ _____Assistant Secretary
CRYOCHEM, INC.
By: j£MsU&£<f*f_________President or Vice-Presldent
