Exhibit 10.9
Transcript Document No. 2
-------------------------
TOWN OP ISLIP INDUSTRIAL DEVELOPMENT AGENCY
(TOWN OF ISLIP, NEW YORK)
and
NORTH FORK BANK. A DIVISION OF CAPITAL ONE, NA.
and
HPG REALTY CO,, LLC
and
TRI-STAFcF ELECTRONICS, INC.
and
CVD EQUIPMENT CORPORATION
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
Dated February 8, 2008
Town of Islip Industrial Development Agency
(CVD Equipment Corporation 2008 Facility)
Record and Return to:
District: 0500
Section: 105.00 Xxxxxxxxxxx Xxxxxxxxx, Esq.
Lot: 03.00 Xxxxx Peabody LLP
Let: 002.001 0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
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Page No.
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ARTICLE I DEFINITIONS 4
ARTICLE ii ASSIGNMENT AND ASSUMPTION 4
Section 2,1 Effective Date, Assignment and Assumption 4
Section 2.2 Consent by Agency
ARTICLE Ill RELEASE
Section 3.1 Release of HPG Realty by the Agency 5
Section 3.2 Release of Sublessee by the Agency 5
Section 3.3 Satisfaction and Discharge of Certain Documents, Recording 6
ARTICLE IV AMENDMENT AND MODIFICATION OF LEASE AGREEMENT 6
Section 4.1 Amendment and Modification of Original Lease Agreement 6
ARTICLE V AMENDMENT AND MODIFICATION OF ENVIRONMENTAL.
COMPLIANCE AND INDEMNIFICATION AGREEMENT 11
Section 5.1 Amendment and Modification of Original Environmental Compliance and
Indemnification Agreement 11
ARTICLE VI AMENDMENT AND MODIFICATION OF PILOT AGREEMENT 13
Section 6.1 Amendment and Modification of Original PILOT Agreement 13
ARTiCLE VII MISCELLANEOUS 14
Section 7.1 Notices 14
Section 7.2 Binding Effect 15
Section 7.3 Severability 15
Sectiorl7.4 Amendments. Changes arid Modifications 15
Section 7.5 Execution of Counterparts 16
Section 7.6 Applicable Law 16
Section 7.7 Miscellaneous 16
Section 7.8 Table of Contents and Section Headings Not Controlling 16
EXHIBIT A Legal Description of Real Property
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT, dated February 8, 2008
(this "Assignment, Assumption and Amendment Agreement"), is by and among the
TOWN OF ISLIP INDUSTRIAL DEVELOPMENT AGENCY, an industrial development agency
and a public benefit corporation of the State of New York, having its principal
office at 00 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 (the "Agency"), NORTH FORK
BANK, a division of Capital One, NA., having an office at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 (the "2008 Lender"), HPG REALTY CO., LLC, a limited
liability' company duly organized and validly existing under the laws of the
State of New York, having its principal office at 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxx Xxxx 00000 ("HPG Realty"; and, before the Effective Date, the
"Company"), TRISTART ELECTRONICS, INC. a business corporation duly organized and
validly existing under the Jaws of the State of New York, having its principal
office at 000 Xxxxxxxxx Xxxxxxxxx. Xxxxxxxxxx, Xxx Xxxx 11 779 (the "Sublessee")
and CVD EQUIPMENT CORPORATION, a business corporation duly organized and validly
existing under the laws of the State of New York, having its principal office at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 ("CVD Equipment Corporation";
and, on and after the Effective Date, the "Company").
R E C I T A L S
WHEREAS, Title I of Article 18-A of the General Municipal Law of the State
of New York was duly enacted into law as Chapter 1030 of the Laws of 1969 of the
State of New York (the "State"); and
WHEREAS, the aforesaid act authorizes the creation of industrial
development agencies for the Public Purposes of the State; and
WHEREAS, the aforesaid act further authorizes the creation of industrial
developthent agencies for the benefit of the several counties, cities, villages
and towns in the State and empowers such agencies, among other things, to
acquire, reconstruct, renovate, refurbish, equip, lease, sell and dispose of
land nud any building or other improvement, and all real and personal property,
including hut not limited to machinery and equipment deemed necessary in
connection therewith, whether now in existence or under construction, which
shall be suitable for manufacturing, civic, warehousing, research, commercial,
recreation or industrial facilities, in order to advance job opportunities,
health, general prosperity and the economic welfare of the people of the State
and to improve their standard of living; and
WHEREAS, the Agency has previously entered into a straight lease
transaction on behalf of MPG Realty consisting of the acquisition of an
approximately one (1.0) acre parcel of land located at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx of Islip, Suffolk County, New York, and the construction and
equipping of art approximately 13,300 square foot building containing office and
warehouse space located thereon, leased by the Agency to HPG Realty and
subleased by MPG Realty to and used by the Sublessee, for distribution of
electronic parts (the "Facility"); and
WHEREAS, the Agency leased the Facility to HPG Realty pursuant to a certain
Lease Agreement. dated as of February 1, 2004 (the "Original Lease Agreement").
between the Agency, as lessor, and HPG Realty, as lessee, and a Memorandum of
Lease Agreement, dated as of February 1, 2004, between the Agency and HPG Realty
was recorded in the Suffolk County Clerk's Office on February 20, 2004 in Liber
12302 page 271; and
WHEREAS, HPG Realty subleased the Facility to the Sublessee, pursuant to a
certain Sublease Agreement, dated February 1, 2004 (the "Sublease Agreement"),
between HPG Realty, as sublessor, and the Sublessee, as sublessee, and a
Memorandum of Sublease, dated as of February 1, 2004, between HPG Realty and the
Sublessee was recorded in the Suffolk County Clerk's Office on February 20, 2004
in Liber 12302 page 272; and
WHEREAS, the Sublease Agreement was amended on July 27. 2004. and a
Memorandum of Lease, dated July 27, 2004 between HPG Realty and the Sublessee
was recorded in the Suffolk County Clerk's Office on October 7, 2004 in Liber
12347 page 949; and
WHEREAS, as further security for amounts due under the Original Lease
Agreement, the Original Sublease Agreement, the Original Mortgage, the Bridge
Mortgage and the LIDC Mortgage, as assigned, (i) the Sublessee entered into a
certain Collateral Assignment of Sublease, dated July 27, 2004 (the "Collateral
Assignment of Sublease"). from the Sublessee to the Long Island Developmcnt
Corporation ("LIDC"), which Collateral Assignment of Sublease was recorded in
the Suffolk County Clerk's Office on October 7, 2004 in Liber 12347 page 950,
(ii) LIDC entered into a certain Assignment of Collateral Assignment of
Sublease, dated July 27, 2004 (the "Assignment of Collateral Assignment of
Sublease"), from LIDC to the United States Small Business Administration
("SBA"). which Assignment of Collateral Assignment of Sublease was recorded in
the Suffolk County Clerk's Office on October 7, 2004 in Liber 12347 page 95!,
(iii) HPG Realty entered into a certain Assigmnent of Leases and Rents, dated
July 27, 2004 (the "SBA Assignment of Leases and Rents"), from HUG Realty to
SBA, which SBA Assignment of Leases and Rents was recorded in the Suffolk County
Clerk's Office on October 7, 2004 in Liber 12347 page 952, and (iv) LIDC entered
into a certain Assignment of Assignment of Leases and Rents, dated July 27, 2004
(the "LIDC Assignment of Assignment of Leases and Rents"), from LIDC to SBA,
which LIDC Assignment of Assignment of Leases and Rents was recorded in the
Suffolk County Clerk's Office on October 7, 2004 in Liber 12347 page 953; and
WHEREAS, in connection with the leasing and the subleasing of the Facility,
the Agency, HPG Realty and the Suhlessee entered into a Payment-in-Lieu-of-Tax
Agreement, dated as of February 1, 2004 (the "Original PILOT Agreement"), which
provided for MPG Realty and the Suhiessee to make payments in lieu of real
property taxes on the Facility; and
WHEREAS, in connection with the leasing and the subleasing of the Facility,
the Agency. HPG Realty and the Sublessee entered into an Environmental
Compliance and Indemnification Agreement, dated as of February 1, 2004 (the
"Original Environmental Compliance and Indemnification Agreement"), pursuant to
which HPG Realty and the Sublessee agreed to comply with all Environmental Laws
(as defined therein) applicable to the Facilty; and
2
WHEREAS in connection with the leasing and subleasing of the Facility, the
Agency and the Sublessee entered into an Agency Compliance Agreement, dated as
of February 4, 2004 (the "Agency Compliance Agreement"). whereby the Sublessee
made certain representations and wananties and covenanted to comply with certain
of the policies of the Agency; and
WHEREAS, CVD Equipment Corporation has requested that the Agency consent to
the assignment and assumption of HPG Realty's leasehold interest (including its
reversionary interest) in the Facility by CVD Equipment Corporation, and to
assist CVD Equipment Corporation with the financing of the acquisition of HPG
Realty's leasehold interest in the Facility, and in connection therewith, the
Prior Lender, LIDC and SBA will satisfy and discharge of record the Original
Mortgage, the Bridge Mortgage, the LIDC Mortgage, as assigned by the Mortgage
Assignment, the Assignment of Collateral Assignment of Sublease, the Assignment
of Leases and Rents, and the Building Loan Agreement and CVD Equipment
Corporation and the Agency will enter into a certain Mortgage and Security
Agreement, dated February 8, 2008 securing an aggregate principal amount of
$1,000,000 (the "2008 First Mortgage"), and a certain Mortgage and Security
Agreement, dated February 8, 2008 securing an aggregate principal amount of
$500,000 (the "2008 Second Mortgage"; and, collectively with the 2008 First
Mortgage, the "2008 Mortgage"). each from CVD Equipment Corporation and the
Agency to the 2008 Lender, to fully secure a loan from the 2008 Lender to CVD
Equipment Corporation in the aggregate principal amount of $1,500,000 (the "2008
Loan"), and the Agency has agreed to enter into such 2008 Mortgage and related
loan documents, has consented to CVD Equipment Corporation entering into such
2008 Mortgage and related loan documents, and has agreed to release HPG Realty
and the Sublessee from any further liability with respect to the Facility,
subject to the limitations outlined herein; and
WHEREAS, to further secure the 2008 Loan, CVD Equipment Corporation has
requested that the Agency enter into an Assignment of Leases and Rents. dated
February 8, 2008 securing the 2008 First Mortgage (the "2008 First Assignment of
Rents") and an Assignment of Leases and Rents, dated February 8, 2008 securing
the 2008 Second Mortgage (the "2008 Second Assignment of Rents"; and,
collectively with the 2008 First Assignment of Rents, the "2008 Assignment of
Rents"; and, together with the 2008 Mortgage, the "Loan Documents"), by and
among the Agency, the 2008 Lender and CVD Equipment Corporation; and
WHEREAS, subject to the Agency's consent, which consent is given pursuant
to Section 2.2 hereof, CVD Equipment Corporation shall acquire HPG Realty's
leasehold estate and reversionary interest in the Facility created pursuant to
the Original Lease Agreement, and HPG Realty shall assign to CVD Equipment
Corporation all of HPG Realty's rights, title, interest, duties, liabilities
and obligations under the Original Lease Agreement, the Original Environmental
Compliance and Indemnification Agreement and the Original PILOT Agreement, and
CVD Equipment Corporation shall assume all of HPG Realty's rights, title,
interest, duties, liabilities and obligations under the Original Lease
Agreement, the Original Environmental Compliance and Indemnification Agreement
and the Original PILOT Agreement with respect to the Facility, subject to the
limitations outlined herein.
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AGREEMENT
For and in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used in this Assignment, Assumption and Amendment
Agreement and not otherwise defined herein shall have the meanings assigned
thereto in the Schedule of Definitions attached to the Original Lease Agreement,
as herein amended and assigned, as Schedule A.
All references in the Original Lease Agreement, the Original PILOT
Agreement and the Original Environmental Compliance and Indemnification
Agreement to "this Lease Agreement", or "the Lease Agreement", "this PILOT
Agreement" or "the PILOT Agreement", "this Environmental Compliance and
Indemnification Agreement" or "the Environmental Compliance and Indemnification
Agreement", or words of similar import, and the terms "hereby", "hereof",
"hereto", "herein", "hereunder", "thereby", "thereof", "thereto", "therein"
"thereunder" and any similar terms as used in any such instrument or agreement
shall be deemed to refer to such instrument or agreement as amended, modified.
supplemented and assigned by this Assignment, Assumption and Amendment
Agreement.
ARTICLE 11
ASSIGNMENT AND ASSUMPTION
Section 2.1 Effective Date, Assignment and Assumption.
(a) As used herein, the "Effective Date" shall mean February 8, 2008.
(b) Upon the Effective Date of this Assignment, Assumption and Amendment
Agreement, HPG Realty hereby assigns to CVD Equipment Corporation all
of its rights, title, interest, obligations, liabilities and duties
with respect to the Facility, including, but not limited to, all of
its rights, title, interest, obligation, liabilities and duties under
the Original Lease Agreement the Original PILOT Agreement and the
Original Environmental Compliance and Indemnification Agreement,
subject to the limitations outlined herein.
(c) Upon the Effective Date of this Assignment, Assumption and Amendment
Agreement, CVD Equipment Corporation hereby assumes all of MPG
Realty's rights, title, interest, obligations, liabilities and duties
relating to the Facility, including, hut not limited to, all of its
rights, title, interest, obligation, liabilities and duties under the
Original Lease Agreement, the Original PILOT Agreement. the Original
Environmental Compliance and Indemnification Agreement, subject to the
limitations outlined herein.
4
Section 2.2 Consent by Agency. The Agency hereby consents to the assignment
by HPG Realty to CVD Equipment Corporation pursuant to Section 2.1(b) hereof and
the assumption by CVD Equipment Corporation pursuant to Section 2.1(c) hereof
ARTICLE III
RELEASE
Section 3.1 Release of HPG Realty by the Agency.
(a) On and after the Effective Date of this Assignment, Assumption and
Amendment Agreement, but only upon receipt by the Agency of an opinion of
counsel to CVID Equiptnent Corporation that this Assignment, Assumption and
Amendment Agreement has been duly authorized, executed and delivered by CVD
Equipment Corporation, the receipt of which opinion the Agency hereby confirms,
the Agency hereby releases HPG Realty from (a) all of its obligations,
liabilities and duties relating to the Facility, including, but not limited to,
all of its rights, title, interest, obligation, liabilities and duties under the
Original Lease Agreement, the Original Environmental Compliance and
Indenmification Agreement and the Original PILOT Agreement, except as stated
below in paragraphs (b) and (c) of this Section 3.1.
(b) Notwithstanding anything herein to the contrary, HPG Realty is hereby
not released from any obligations, liabilities or duties under the Original
Lease Agreement and the Original PILOT Agreement arising prior to the Effective
Date of this Assignment, Assumption and Amendment Agreement (the "HPG Realty
Prior Obligations"), including, without limiting the generality of the
foregoing, the obligations of HPG Realty accruing prior to the Effective Date to
indemnify and defend the Agency and to hold the Agency harmless under the
Original Lease Agreement and the Original PILOT Agreement and irrespective of
whether a particular cause of action in connection with such HPG Realty Prior
Obligations was commenced or commences before or after such Effective Date.
(c) Notwithstanding anything herein to the contrary. HPG Realty is hereby
not released from any obligations, liabilities or duties under the Original
Environmental Compliance and Indemnification Agreement arising prior to the
Effective Date of this Assignment. Assumption and Amendment Agreement (the "HPG
Realty Prior Environmental Obligations"), including, without limiting the
generality of the foregoing, the obligations of HPG Realty accruing prior to the
Effective Date to indemnify and defend the Agency and to hold the Agency
harmless under the Original Environmental Compliance and lndemnification
Agreement and irrespective of whether a particular cause of action in connection
with such HPG Realty Prior Environmental Obligations was commenced or commences
before or after such Effective Date.
Section 3.2 Release of Sublessee by the Agency.
(a) On and after the Effective Date of this Assignment, Assumption and
Amendment Agreement, but only upon receipt by the Agency of an opinion of
counsel to CVD Equipment Corporation that this Assignment, Assumption and
Amendment Agreement has been duly authorized, executed and delivered by CVD
5
Equipment Corporation, the receipt of which opinion the Agency hereby confirms,
the Agency hereby releases the Sublessee from (a) all of its obligations,
liabilities and duties relating to the Facility, including, but not limited to.
all of its rights, title interest, obligation, liabilities and duties under the
Agency Compliance Agreement, the Original Environmental Compliance and
Indemnification Agreement and the Original PILOT Agreement, except as stated
be]ow in paragraphs (b) and (c) of this Section 3.1.
(b) Notwithstanding anything herein to the contrary, the Sublessee is
hereby not released from any ohligations. liabilities or duties under the Agency
Compliance Agreement arising prior to the Effective Date of this Assignment,
Assumption and Amendment Agreement or the Original PILOT Agreement (the
"Sublessee Prior Obligations"), including, without limiting the generality of
the foregoing, the obligations of the Sublessee accruing prior to the Effective
Date to indemnity and defend the Agency and to hold the Agency harmless under
the Agency Compliance Agreement and irrespective of whether a particular cause
of action in connection with such Sublessee Prior Obligations was commenced or
commences before or after such Effective Date.
(e) Notwithstanding anything herein to the contrary, the Sublessce is
hereby not released from any obligations, liabilities or duties under the
Original Environmental Compliance and Indemnification Agreement arising prior to
the Effective Date of tlus Assignment, Assumption and Amendment Agreement (the
"Sublessee Prior Environmental Obligations"), including, without limiting the
generality of the foregoing, the obligations of the Sublessee accruing prior to
the Effective Date to indemnify and defend the Agency and to hold the Agency
hanniess under the Original Environmental Compliance and Indemnification
Agreement and irrespective of whether a particular cause of action in connection
with such Sublessee Prior Environmental Obligations was commenced or commences
before or after such Effective Date.
Section 3.3 Satisfaction and Discharge of Certain Documents, Recording.
HPG Realty and the Sublessee consent to the termination of the Sublease
Agreement, and agree that a separate termination of Sublease agreement will be
recorded in the Suffolk County Clerk's office.
ARTICLE IV
AMENDMENT AND MODIFICATION OF LEASE AGREEMENT
Section 4.1 Amendment and Modification of Original Lease Agreement. HPG
Realty, CVD Equipment Corporation, the 2008 Lender and the Agency agree that the
Original Lease Agreement is amended and modified as of the date hereof as
follows:
(a)(i) HPG Realty, CVI) Equipment Corporation and the Agency agree that
the Original Lease Agreement are amended and modified in all respects to reflect
that CVD Equipment Corporation is now leasing the Facility from the Agency and
further that the Agency and CVD Equipment Corporation have consented to the
execution and delivery of a mortgage of the Facility to the 2008 Lender.
6
Accordingly, the following definitions in the Schedule of Definitions attached
to the Original Lease Agreement are hereby amended and restated as follows:
"2008 First Assignment of Leases and Rents" means the 2008 First
Assignment of Leases and Rents, dated February 8, 2008, among the
Agency, the Company and the 2008 Lender.
"2008 First Mortgage" means the Mortgage and Security Agreement, dated
February 8, 2008 securing the 2008 First Note, by and among the
Agency, the Company and the 2008 Lender.
"2008 First Note" means the Promissory Note in the aggregate principal
amount of $l,000,000 given by the Company to the 2008 Lender.
"2008 Lender" means North Fork Bank, a division of Capital One, N.A.,
or such other lender or lenders as may be approved by the Agency with
respect to the refinancing of the acquisition, construction and
equipping of the Facility.
"2008 Second Assignment of Leases and Rents" means the 2008 Second
Assignment of Leases and Rents, dated February 8, 2008, among the
Agency, the Company and the 2008 Lender.
"2008 Second Mortgage" means the Mortgage and Security Agreement,
dated February 8, 2008 securing the 2008 Second Note, by and among the
Agency, the Company and the 2008 Lender.
"2008 Second Note" means the Promissory Note in the aggregate
principal amount of $500,000 given by the Company to the 2008 Lender.
"Agency Documents" means the Lease Agreement, the Environmental
Compliance and Indemnification Agreement, the PILOT Agreement, the
Assignment, Assumption and Amendment Agreement, the Mortgage and the
Assignment of Rents.
"Approving Resolution" or "Authorizing Resolution" means (i) with
respect to the acquisition, construction and equipping of the
Facility, the resolution adopted by the Agency on May 6, 2003,
authorizing the execution and delivery of the Agency Documents as such
resolution may be amended and supplemented from time to time, (ii)
with respect to the Assignment, the resolution adopted by the Agency
on November 27, 2007, authorizing the execution and delivery of the
Assignment, Assunption and Amendment Agreement together with all
related documents as such resolution may he amended and supplemented
from time to time.
"Assignment" means the Assignment by HPG Realty of all its rights,
title, interest, duties, liabilities and obligations with respect to a
leasehold interest in and to the Facility, to CVD Equipment
7
Corporation and the assumption of a leasehold interest in and to the
Facility by CVD Equipment Corporation, pursuant to the Assignment,
Assumption and Anendinent Agreement.
"Assignment, Assumption and Amendment Agreement" means the Assignment,
Assumption and Amendment Agreement, dated February 8, 2008, by and
among the Agency, the Lender, LIDC, HPG Realty, the Sublessee and the
Company.
"Assignment of Rents" means, collectively, the 2008 First Assignment
of Leases and Rents securing the 2008 First Mortgage, and the 2008
Second Assignment of Leases and Rents securing the 2008 Second
Mortgage.
"Authorized Representative" means, in the case of the Agency, the
Chairman, the Vice Chairman, the Secretary, the Assistant Secretary or
the Executive Director of the Agency; in the case of HPG Realty, any
Member; in the case of the Company, the President, any Vice President,
the Treasurer or the Secretary, and, in the case of any of them, such
additional persons as, at the time, are designated to act on behalf of
the Agency, HPG Realty or the Company as the case may be, by written
certificate furnished to the 2008 Lender and to the Agency, HPG Realty
or the Company, as the case may be, containing the specimen signature
of each such person and signed on behalf of (i) the Agency by the
Chairman, the Vice Chairman, the Secretary, the Assistant Secretary or
the Executive Director of the Agency, (ii) I-IPG Realty by any Member
of the Company. or (iii) the Company by the President, any Vice
President, the Treasurer or the Secretary.
"Closing Date" means (i) with respect to the acquisition, construction
and equipping of the Facility, February 4, 2004 and (ii) with respect
to the Assignment, February 8, 2008.
"Company" means CVD Equipment Corporation, a business corporation duly
organized and validly existing under the laws of the State and its
successors and assigns.
"Company Documents" means the Xxxx of Sale, the Deed, the Lease
Agreement, the Environmental Compliance and Indemnification Agreement,
the PILOT Agreement, the Assignment, Assumption and Amendment
Agreement, the Environmental Compliance and Indemnification Agreement,
the PILOT Agreement, and the Loan Documents to which it is a party.
"Environmental Compliance and Indemnification Agreement" means the
Environmental Compliance and lndemnitication Agreement, dated as of
February 1, 2004, by and among the Agency and the Company, as the same
may be amended from time to time, as assigned and amended by the
Assignment, Assumption and Amendment Agreement.
"HPG Realty" means HPG Realty Associates LLC, a limited liabiiity
company duly organized and validly existing under the laws of the
State.
8
"Hazardous Substance" means, without limitation, any flammable,
explosive, radon, radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleum, petroleum
constituents, petroleum products, methane, hazardous materials,
hazardous wastes, hazardous or toxic substances or related materials,
pollutants, or toxic pollutants, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601, et seq.), the Resource Conservation
and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections
1801, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Sections 2601, et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. Sections 1251 et seq.), Articles 17 and 27
of the New York State Environmental Conservation Law, or any other
applicable Environmental Law and the regulations promulgated
thereunder.
"Lease Agreement" means. collectively, the Lease Agreement, dated as
of February 1, 2004 by and between the Agency, as lessor, and the
Company, as lessee, with respect to the Facility, as the same may be
amended from time to time, as assigned and amended by the Assignment,
Assumption and Amendment Agreement.
"Lender" means the 2008 Lender.
"Loan" means the loan in the aggregate principal amount of $1,500,000,
given by the 2008 Lender to the Company pursuant to the terms of the
Note.
"Loan Documents" mean the Mortgage, the Assignment of Rents, the Note
and any other documents executed and delivered to the 2008 Lender in
connection with the Loan.
"Mortgage" means, collectively, the 2008 First Mortgage and the 2008
Second Mortgage.
"Note" means, collectively, the 2008 First Note and the 2008 Second
Note.
"PILOT Agreement" means the Payment-in-Lieu-of-Tax Agreement, dated as
of February 1, 2004, between the Company and the Agency, as assigned
and amended pursuant to the Assignment, Assumption and Amendment
Agreement, and as the same may be further amended from time to time.
"Transaction Documents" means the agency Documents, the Company
Documents and the Loan Documents.
(ii) The following definitions in the Schedule of Definitions attached to
the Original Lease Agreement are hereby deleted:
(a) Agency Compliance Agreement;
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(b) Assignment of Leases and Rents;
(c) Bridge Assignment of Leases and Rents;
(d) Bridge Loan;
(e) Bridge Loan Mortgage Note;
(f) Bridge Mortgage;
(g) First Assignment of Leases and Rents;
(h) First Mortgage;
(i) First Mortgagee;
(j) Loan Agreement;
(k) Second Mortgage;
(l) Second Mortgagee;
(m) Second Mortgage Loan;
(n) Second Mortgage Note;
(o) Sublease or Sublease Agreement; and
(p) Sublessee Documents.
(b) The Lease Agreement is hereby amended and modified in all respects to
include a new Section 3.4 as follows:
Section 3.4 Public Authorities Law Representations. The parties hereto
hereby acknowledge and agree that the Facility and the interest
therein to be conveyed by this Lease Agreement, are not "Property" as
defined in Article 9, Title 5-A of the Public Authorities Law of the
State because the Facility and the interests therein are securing the
financial obligations of the Company. It is hereby acknowledged that
the Facility and the leasehold interest therein have been pledged to
secure the loan to the Company from the 2008 Lender. The Facility and
the interests therein secure the Company's obligations to the Agency
under the PTLOT Agreement, the Environmental Compliance and
Indemnification Agreement, and the Lease Agreement, including the
Company's obligation to indemnify and hold harmless the Agency.
10
(c) Section 8.6 of the Lease Agreement is hereby amended and modified in
all respects to read as follows:
The Company shall file with the New York State Department of Taxation
and Finance an annual statement of the value of all sales and use tax
exemptions claimed in connection with the Facility in compliance with
Sections 874(8) and (9) of the New York State General Municipal Law.
The Company shall submit a copy of such annual statement to the Agency
at the time of filing with the Department of Taxation and Finance. The
Company further agrees whenever requested by the Agency to provide and
certify or cause to be provided and certified such information
concerning the Company, its finances, its operations, its employment
and its affairs necessary to enable the Agency to make any report
required by law, governmental regulation, including, without
limitation. any reports required by the Act or the Public Authorities
Accountability Act of 2005, as amended from time to time. Such
information shall be provided within thirty (30) days following
written request from the Agency.
The Lease Agreement, as amended and modified herein, remains otherwise a
valid and binding obligation of the Company and the Agency and is in full force
and effect.
ARTICLE V
AMENDMENT AND MODIFICATION OF ENVIRONMENTAL COMPLIANCE AND
INDEMNIFICATION AGREEMENT
Section 5.1 Amendment and Modification of Original Environmental Compliance
and Indemnification Agreement. HPG Realty, CVI) Equipment Corporation and the
Agency agree that the Original Environmental Compliance and Indemnification
Agreement is amended and modified as of the date hereof as follows:
(a) HPG Realty, CYD Equipment Corporation and the Agency agree that the
Original Environmental Compliance and Indemnification Agreement is amended and
modified in all respects to reflect that CVD Equipment Corporation is now
leasing the Facility from the Agency and the Sublessee is no longer a party to
the PILOT Agreement. Accordingly, all references to the Sublessee therein are
deleted and the following definitions in the Original Environmental Compliance
and Indemnification Agreement is hereby amended and restated as follows:
"Hazardous Substance" means, without limitation, any flammable,
explosive, radon, radioactive materials, asbestos, urea formaldehyde
foam insulation, polyehlorinated biphenyls, petroleum, petroleum
constituents, petroleum products, methane, hazardous materials,
hazardous wastes, hazardous or toxic substances or relaLed materials,
11
pollutants, or toxic pollutants, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601, et seq.), the Resource Conservation
and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections
1801, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Sections 2601, et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. Sections 1251 et seq.), Articles 17 and 27
of the New York State Environmental Conservation Law, or any other
applicable Environmental Law and the regulations promulgated
themeunder.
"Indemnitors" means the Company and its respective successors and
assigns.
(b) Section 7 of the Environmental Compliance and Indemnification Agreement
is hereby amended and modified in all respects to read as follows:
All notices, certificates and other communications hereunder shall be in
writing and shall be either delivered personally or sent by certified mail,
postage prepaid, return receipt requested, addressed as follows or to such other
address as any party may specify in writing to the others:
To the Agency:
Town of Islip industrial Development Agency
00 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attn: Executive Director
To HPG Realty:
HPG Realty Co,, LLC
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx.xxxx. Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, Member
For all notices to HPG Realty, with a copy to:
Soferino & Solferino
00 Xxxxxx Xxxx
Xxxxxxx. Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq
To CVD Equipment Corporation:
CVD Equipment Corpcration
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
12
For all notices to CVD Equipment Corporation, with a copy to:
Xxxxxx J, Xxxxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
To the 2008 Lender:
North Fork Bank, a division of Capital One, NA.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Vice President
For all notices to the 2008 Lender, with a copy to:
Ferro, Kuba, Mangano, Sklyar, Gacovino & Lake, PC
Hauppauge (Long Island) Xxxxxx
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
The Environmental Compliance and Indemnification Agreement, as amended and
modified herein, remains otherwise a valid and binding obligation of the Company
and the Agency and is in full force and effect.
ARTICLE VI
AMENDMENT AND MODIFICATION OF PILOT AGREEMENT
Section 6.1 Amendment and Modification of Original PILOT Agreement.
(a) HPG Realty, CVD Equipment Corporation and the Agency agree that the
Original PILOT Agreement is amended and modified as of the date hereof as
follows:
(a) HPG Realty, CVD Equipment Corporation and the Agency agree that the
Original PILOT Agreement is amended and modified in all respects to reflect that
CVD Equipment Corporation is now leasing the Facility from the Agency and the
Sublessee is no longer a party to the PILOT Agreement and all references to the
Sublessee therein are deleted.
The PILOT Agreement, as amended and modified herein, remains otherwise a
valid and binding obligation of the Company and the Agency and is in full force
and effect.
(b) Section 7 of the PILOT Agreement is hereby amended and modified in all
respects to read as follows:
13
Except as otherwise provided herein, any notice required to be given under
this Agreement shall be deemed to have been duly given when delivered and, if
delivered by mail, shall be sent by certified mail, postage prepaid, return
receipt requested, addressed to the respective parties hereto at their
respective addresses specified below or such other addresses as either party may
specify in writing to the other:
The Agency:
Town of Islip Industrial Development Agency
00 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attention: Executive Director
The Company:
CVD Equipment Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
Notice by mail shall be effective when delivered but if not yet delivered
shall be deemed effective at 12:00 p.m. on the third business day after mailing.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. All notices, certificates and other communications
hereunder shall be in writing and shall be either delivered personally or sent
by certified mail, postage prepaid, return receipt requested, addressed as
follows or to such other address as any party may specify in writing to the
others:
To the Agency:
Town of Islip industrial Development Agency
00 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attn: Executive Director
To HPG Realty:
HPG Realty Co., LLC
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, Member
14
For all notices to HPG Realty, with a copy to:
Soferino & Solferino
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Atm: Xxxxxx X. Xxxxxxxxx, Esq
To CVD Equipment Corporation:
CVD Equipment Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
For all notices to CVD Equipment Corporation, with a copy to:
Xxxxxx X. Xxxxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
To the 2008 Lender:
North Fork Bank, a division of Capital One, NA.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Vice President
For all notices to the 2008 Lender: with a copy to:
Ferro, Kuba, Xxxxxxx, Xxxxxx. Gacovino & Lake, PC
Hauppauge (Long Island) Xxxxxx
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Section 7.2 Binding Effect, This Assignment, Assumption and Amendment
Agreement shall inure to the benefit of and shall be binding upon the parties
and their respective successors and assigns.
Section 7.3 Severability. In the event any provision of this Assignment,
Assumption and Amendment Agreement shall he held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 7.4 Amendments, Changes and Modififications. This Assignment,
Assumption and Amendment Agreement may not be amended, changed, modified,
altered or terminated except in a writing executed by the parties hereto.
15
Section 7.5 Execution of Counterparts. This Assignment, Assumption and
Amendment Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 7.6 Applicable Law. This Assignment, Assumption and Amendment
Agreement shall be governed exclusively by the applicable laws of the State
without regard or reference to its conflict of laws principles.
Section 7.7 Miscellaneous. The Original Lease Agreement, as assigned,
assumed, amended and released, is and shall remain subject and subordinate to
the lien of the Mortgage, given by the Agency and the Company to the 2008
Lender, in the aggregate principal amount of $1,500,000, and the Lease
Agreement, as assigned, assumed, amended and released, shall remain subject and
subordinate to any and all amendments, modifications and extensions of the
Mortgage and supplements thereto hereafter made in conformity therewith.
Section 7.8 Table of Contents and Section Headings Not Controlling. The
Table of Contents and the headings of the several Sections in this Assignment,
Assumption and Amendment Agreement have been prepared for convenience of
reference only and shall not control or affect the meaning of or be taken as an
interpretation of any provision of this Assignment, Assumption and Amendment
Agreement.
(Remainder of Page Intentionally Left Blank)
16
IN WITNESS WHEREOF, the parties hereto have caused this Assignment,
Assumption and Amendment Agreement to be executed in their respective names by
their duly authorized representatives, all as of the date first written above.
TOWN OF ISLIP INDUSTRIAL
DEVELOPMENT AGENCY
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X Xxxxxx
Title: Executive Director
STATE OF NEW YORK )
: SS.:
COUNTY OF SUFFOLK )
On the 8th day of February in the year 2008, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the within instrument, the individual, or the person or entity on
behalf of which the individual acted, executed the instrument.
/s/Xxxxx Xxxx Xxxx
---------------------------------
Notary Public
XXXXX XXXX XXXX
Notary Public - State of New York
No. 314915337
Qualified in New York County
Commission Expires January 4, 2010
Signature Page to
Assignment, Assumption and Amendment Agreement
HPG REALTY CO., LLC
By: /s/Xxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Member
STATE OF NEW YORK )
: SS.:
COUNTY OF SUFFOLK )
On the 8th day of February in the year 2008, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxx Xxxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the within instrument, the individual, or the person or entity on
behalf of which the individual acted, executed the instrument
/s/Xxxxxx X. XxXxx
---------------------------------
Notary Public
XXXXXX X. XxXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01MC484~O31
QUALIFIED IN SUFFOLK COUNTY
COMMISSION EXPIRES 5-31-2011
Signature Page to
Assignment, Assumption and Amendment Agreement
TRI-STARTELECTRON1CS, INC.
By: /s/Xxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
STATE OF NEW YORK )
: SS.:
COUNTY OF SUFFOLK )
On the 8th day of February in the year 2008, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxx Xxxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the within instrument, the individual, or the person or entity on
behalf of which the individual acted. executed the instrument
/s/Xxxxxx X. XxXxx
---------------------------------
Notary Public
XXXXXX X. XxXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01MC484~O31
QUALIFIED IN SUFFOLK COUNTY
COMMISSION EXPIRES 5-31-2011
Signature Page to
Assignment, Assumption and Amendment Agreement
CVD EQUIPMENT CORPORATION
By: /s/Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
STATE OF NEW YORK )
: SS.:
COUNTY OF SUFFOLK )
On the 8th day of February in the year 2008, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the within instrument, the individual, or the person or entity on
behalf of which the individual acted, executed the instrument.
/s/Xxxxxx X. XxXxx
---------------------------------
Notary Public
Signature Page to
Assignment, Assumption and Amendment Agreement
NORTH FORK BANK, A DIVISION OF
CAPITAL ONE, N.A.
By: /s/Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
STATE OF NEW YORK )
: SS.:
COUNTY OF SUFFOLK )
On the 8th day of February in the year 2008, before me, the undersigned, a
Notary Pubhic in and for said State, personally appeared Xxxxxx Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the within instrument, the individual, or the person or entity on
behalf of which the individual acted, executed the instrument.
/s/Xxxxxx X. XxXxx
---------------------------------
Notary Public
XXXXXX X. XxXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01MC484~O31
QUALIFIED IN SUFFOLK COUNTY
COMMISSION EXPIRES 5-31-2011
Signature Page to
Assignment, Assumption and Amendment Agreement
EXHIBIT A
Legal Description of Real Property
ALL that certain plot, piece, or parcel of land situate, lying and being in
the Town of Islip, County of Suffolk and State of New York, designated as
Tax Lot 002.001 in Block 03.00 Section 105.00 in District 0500 on the
Suffolk County Tax Map, more particularly bounded and described as follows;
BEGINNING at a point on the northerly line of Marconi Avenue (Fifth Street)
said point being 388.00 feet distant westerly as measured along the
northerly line of Marconi Avenue, from the westerly end of a curve having a
radius of 3000 feet and a length of 47.12 feet connecting the westerly line
of Smithtown Avenue and the northerly line of Marconi Avenue and the
proceeding thence from said point of beginning the following four courses
and distances;
RUNNING THENCE south 82 degrees 45 minutes 32 seconds West a distance of
132.00 feet along the northerly line of Marconi Avenue (Fifth Street) to a
point;
THENCE North 01 degrees 21 minutes 07 seconds east, a distance 333.75 feet
to a point;
THENCE North 82 degrees 45 minutes 32 seconds East, 132.00 feet to a point;
THENCE South 01 degrees 21 minutes 07 seconds west, 333.75 feet to the
point or place of BEGINNING,
