This Lease Extension and Modification Agreement (the "Amendment") dated
as of the 28th day of February, 1997, by and between ONEIDA COUNTY INDUSTRIAL
DEVELOPMENT AGENCY, a public benefit corporation duly organized and existing
under the laws of the State of New York, having an office at 000 Xxxxxx Xxxx,
Xxxx, Xxx Xxxx 00000 (the "Agency") and SPECIAL METALS CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware,
having an office at 0000 Xxxxxx Xxxxxxxxxx Xxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000
(the "Company").
RECITALS
1. The Agency and the Company entered into a Lease Agreement
dated as of February 1, 1994 (the "Lease").
2. A Memorandum of Lease (the "Memorandum") dated as of February
1,1994, was recorded in the Oneida County Clerk's Office on February 2, 1994 in
Book of Deeds 2673 at Page 655.
3. The Company has requested the Agency to extend the Lease for
an additional term of ten (10) years.
4. The Agency by resolution adopted on October 3, 1996, approved
the extension of the Lease, subject to the conditions hereinafter set forth.
NOW, THEREFORE, it is mutually agreed and covenanted as follows:
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1. The definition of "Pilot" in Section 1 of the Lease is
amended to read as follows:
"Pilot" means that agreement of even date herewith between the
Agency and the Company obligating the Company to make certain payments in lieu
of taxes to the Local Taxing Entities, as the same is amended and restated.
2. Section 5.2 of the Lease is hereby amended to read in its
entirety as follows:
Section 5.2. Duration of the Lease Term; Quiet Enjoyment.
(a) The Agency shall deliver to the Company sole and
exclusive possession of the Project Facility (subject to the provisions of
Sections 8.3 and 10.2 hereof), and the leasehold estate created hereby shall
commence on thedate hereof and except as provided in Section 10.2 hereof, the
leasehold estatecreated hereby shall terminate at 11:59 p.m. on February 28,
2007 or on such earlier date as may be permitted by Section 11.1 hereof.
(b) The Agency shall take no action, other than pursuant to
Article X of this Agreement, to prevent the Company from having quiet and
peaceable possession and enjoyment of the Project Facility during the Lease Term
and will, at the request of the Company and at the Company's cost, cooperate
with the Company in order that the Company may have quiet and peaceable
possession and enjoyment of the Project Facility.
3. There is added to Section 2.2 of the Lease the following
subsection:
(g) The Company shall provide to the Agency, within fifteen
days after the end of each calendar quarter, a statement certified to by an
Authorized Officer of the
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Company setting forth the minimum number of full time employees employed at the
Project Facility at any time during the immediately preceding calendar quarter.
4. Section 10.1 of the Lease is hereby amended to read as follows:
Section 10.1. Events of Default Defined.
(a) The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in
this Agreement, any one or more of the following events:
(1) The failure of the Company to make the
payments required pursuant to Sections 5.3, 6.3, 6.7, 6.8 or any other Section
herein for a period of ten (10) days after written notice of the failure is
given to the Company; or
(2) The failure of the Company to maintain the
insurance required by Section 6.4(c) herein; or
(3) The failure by the Company to observe and
perform any other covenant, condition or agreement hereunder on its part to be
observed or performed for a period of thirty (30) days after written notice,
specifying such failure and requesting that it be remedied, given to the Company
by the Agency provided, however, that if the default is of such a nature that it
cannot be remedied within a period of thirty (30) days, the Company shall not be
in default if it shall promptly commence and thereafter prosecute the curing of
the default with due diligence; or
(4) The abandonment of the Project Facility by
the Company or if the Project Facility remains vacant for a period in excess of
ninety (90) consecutive days after written notice thereof given to the Company
by the Agency; or
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(5) The Company fails to continue to maintain
the operation of the Project Facility in the County of Oneida; or
(6) The Company fails to maintain employment at
the Project Facility of not less than 390 full time employees, at all times.
(b) Notwithstanding the provisions of Section 10.1(a), if by
reason of force majeure either party hereto shall be unable in whole or in part
to carry out its obligations under this Agreement and if such party shall give
notice and full particulars of such force majeure in writing to the other party
within a reasonable time after the occurrence of the event or cause relied upon,
the obligations under this Agreement of the party giving such notice, so far as
they are affected by such force majeure, shall be suspended during the
continuance of the inability, which shall include a reasonable time for the
removal of the effect thereof, and the suspension of such obligations for such
period pursuant to this subsection (b) shall not be deemed an Event of Default
under this Section 10.1. Notwithstanding anything to the contrary in this
subsection (b), an event of force majeure shall not excuse, delay or in any way
diminish the obligations of the Company to make the payments required by
sections 5.3, 6.3, 6.7, 6.8 or any other section hereof, to obtain and continue
in full force and effect the insurance required by Section 6.4 hereof, to
provide the indemnity required by Section 8.2 hereof and to comply with the
provisions of Sections 8.2 and 8.8 hereof. The term "force majeure" as used
herein shall include, without limitation, acts of God, strikes, lockouts or
other industrial disturbances, acts of public enemies, orders of any kind of the
government of the United States of America or of the State of New York or any of
their departments, agencies, governmental subdivisions or officials, or any
civil or military authority,
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insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, droughts, arrests, restraint of government
and people, civil disturbances, explosions, shortages of labor and materials or
delays of carriers, shortage of energy, partial or entire failure of utilities,
or any other cause or event not reasonably within the control of the party
claiming such inability and not due to its fault. The party claiming such
inability shall use reasonable efforts to remove the cause for the same with all
reasonable promptness; provided that it is agreed that the settlement of
strikes, lockouts and other industrial disturbances shall be entirely within the
discretion of the party having difficulty, and the party having difficulty shall
not be required to settle any strike, lockout or other industrial disturbances
by acceding to the demands of the opposing party or parties.
5. Section 12.1 of the Lease is amended to read as follows:
Section 12.1. Notices.
All notices, certificates, and other communications hereunder shall be
in writing and shall be sufficiently given and shall be deemed given when
delivered and, if delivered by mail, shall be sent by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To the Agency:
-------------
Oneida County Industrial Development Agency
000 Xxxxxx Xxxx
Xxxx, Xxx Xxxx 00000
Attention: Chairman
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With a copy to:
Groben, Gilroy, Oster & Xxxxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
To the Company:
Special Metals Corporation
0000 Xxxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Vice President, Secretary and Chief Legal Counsel
With a copy to:
Bond, Xxxxxxxxx & King
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, XX
Attention: Xxxxxx X. Xxxxxx, Esq.
The Agency and the Company may, by notice given hereunder, designate
any further or different addresses to which subsequent notices, certificates
and other communications shall be sent.
6. This Amendment shall be effective as of the day and year
first above mentioned.
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7. This Amendment may be executed in one or more counterparts,
each of which shall be an original and all of which together shall constitute
but one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers as of the day and year first above mentioned.
ONEIDA COUNTY INDUSTRIAL
DEVELOPMENT AGENCY
By:
Xxxxxx X. Xxxxx
Chairman
SPECIAL METALS CORPORATION
By:
Xxxxxx X. Xxxxxx
President
