LEASE AGREEMENT
BETWEEN
S. D. XXXXXX COMPANY
AS LANDLORD
AND
SPINNAKER COATING - MAINE, INC.
AS TENANT
FOR PREMISES LOCATED AT
WESTBROOK, MAINE
PRESSURE SENSITIVE SITE LEASE
DATED: March 17, 1998
3/13/98
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made as of the 17th day of March, 1998
(hereinafter, the "Effective Date"), is by and between S. D. XXXXXX COMPANY,
a Pennsylvania corporation with a place of business in Westbrook, Maine
(hereinafter referred to as "Landlord") and SPINNAKER COATING - MAINE, INC.,
a Delaware corporation with a place of business at Westbrook, Maine
(hereinafter referred to as "Tenant").
FOR AND IN CONSIDERATION of the mutual promises set forth herein, and
for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Landlord hereby leases to Tenant, and Tenant
hereby rents from Landlord, upon the terms and provisions of this Lease the
following:
(a) That certain parcel of land containing approximately 151,226 square
feet of land area in the City of Westbrook, Maine (the "Land") shown and
labeled as the "Proposed Long Term Lease Lot" on the site plan entitled
"Buildings and Grounds Civil Site Plan Spinnaker Lot," prepared by
Xxxxxx X. Xxxxxx, Sebago Technics, dated February 12, 1998, last revised
March 3, 1998, a reduced photocopy of which is attached hereto as
EXHIBIT A (the "Site Plan"), the Land being more particularly described
on EXHIBIT B attached hereto, and being a portion of the S. D. Xxxxxx
facility in Westbrook, Maine as shown on the plan entitled "Building &
Grounds Civil, Mill Buildings Plan, S. D. Xxxxxx Co. Drawing # CB-57863,
which S. D. Xxxxxx facility is more particularly described in the
Mortgage from S.D. Xxxxxx Company to Chemical Bank dated December 20,
1994 and recorded in the Cumberland County Registry of Deeds in Book
11764, Page 144 (the "Westbrook Facility") together with
(b) The buildings and improvements located on the Land (the
"Buildings"), the Buildings including without limitation the Building
known as Building 109, 20 Re-Winder, the Building known as Xxxxxxxx 000,
00 Xxxxxx Xxxx., and the Solvent Storage and the Solvent Unloading
areas, as shown on the Site Plan;
(c) The easements, rights of way, covenants, restrictions and other
terms and provisions of a certain Declaration of Reciprocal Easements,
Restrictions and Covenants, executed this date between Landlord and
Tenant and recorded in said Registry on an even date herewith (the
"Reciprocal Easements"), as the Reciprocal Easements are applicable to
the Tenant, the Land and the Buildings (the "Tenant Easements");
(the Land, the Buildings and the Tenant Easements being collectively referred
to as the "Demised Premises");
EXCEPTING AND RESERVING to Landlord, its successors and assigns, the
easements, rights of way, covenants, restrictions and other terms and
provisions of the Reciprocal Easements, as the Reciprocal Easements are
applicable to the Landlord and Landlord's Xxxxxx Facility as defined therein
(the "Landlord Easements");
SUBJECT TO THE OPERATION AND EFFECT of all governmental laws,
ordinances, rules, regulations, codes, or orders now or hereafter affecting
the Demised Premises and to the Permitted Exceptions to Title as hereinafter
defined.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set
forth:
1. TERM OF LEASE.
(a) The term of the Lease (the "Term") shall be for a period of
ninety-nine (99) years, commencing as of the date hereof (the "Commencement
Date").
(b) This Lease shall terminate at the end of the Term without the
necessity of any notice. Tenant shall at its expense, at or prior to the
expiration of the Term or any earlier termination of this Lease, (i) promptly
surrender to Landlord possession of the Demised Premises (including any
fixtures or other improvements) in compliance with all governmental laws,
ordinances, rules, regulations, codes, or orders as then affecting the
Demised Premises.
2. RENT.
(a) As rent for the Demised Premises, Tenant covenants and agrees to
pay to Landlord, the Base Rent as hereinafter provided, and any and all other
sums of money that are required under the terms of this Lease to be paid by
Tenant (which sums, together with the Base Rent are referred to herein as
"Rent"). All payments of Rent shall be payable without setoff or deduction,
in lawful money of the United States of America to Landlord, at Landlord's
notice address as set forth in Section 17 of this Lease, or at such other
place as Landlord may from time to time designate in writing. The Base Rent
has been paid by Tenant upon the execution of this Lease in one installment
in the amount of $99.00 which shall be the total amount of Base Rent for the
Term.
(b) The phrase "Lease Year" shall mean, for the first Lease Year, the
period beginning on the Commencement Date and ending at the end of the last
calendar day of the twelfth (12th) full calendar month following the
Commencement Date; and for Lease Years after the first Lease Year, the twelve
month period beginning with the next day following the expiration of the
preceding Lease Year.
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3. REAL ESTATE TAXES, UTILITIES AND OTHER OPERATING COSTS.
(a) Tenant and Landlord acknowledge that they have entered into a
separate agreement entitled "Site Separation and Services Agreement," dated
as of same date as the Effective Date of this Lease (the "Site Agreement"),
which Site Agreement provides for the delivery of certain services in
connection with the operation of the Pressure Sensitive Business on the
Demised Premises for certain periods of time as therein set forth. Except as
otherwise provided in the Site Agreement, Tenant shall arrange to have
furnished to the Demised Premises public water, electrical service, public
sewer, year-round ventilation, and air conditioning and heat during the
seasons when they are required and any and all other services and utilities
required in connection with Tenant's use of the Demised Premises. Except as
otherwise provided in the Site Agreement, the cost of utility services
provided to the Demised Premises shall be paid by Tenant.
(b) Tenant shall pay, as and when due, all of the real estate taxes and
other assessments and charges levied against or in respect of the Demised
Premises, excepting the Tenant Easements, together with all interest and
penalties thereon.Landlord and Tenant each shall have the right to review or
contest such real estate taxes on the Demised Premises by appropriate
proceedings, instituted and conducted at the sole expense of the party
commencing such proceedings, and in case, as a result of such proceedings, or
otherwise, any such taxes or assessments shall be reduced, canceled, set
aside or to any extent discharged, Tenant's final liability hereunder shall
be based on the amount that shall be finally assessed or imposed or be
adjudicated to be due and payable on any such disputed or contested items.
If one of the parties commences such a proceeding, it agrees to so notify the
other party, and the other party agrees to cooperate with the first party,
providing that the first party shall pay all expenses of such proceeding
including the legal fees reasonably incurred by the other. Tenant shall not
be required to pay, discharge or remove any such taxes so long as either
party shall, in good faith, contest the same or the validity thereof, by
appropriate proceedings; provided, however, that if at any time payment of
the whole or any part of any unpaid taxes should become necessary to avoid
the imposition of any penalty or to prevent the filing of a tax lien on the
Demised Premises, or to prevent interference with Landlord's or Tenant's
interest in the Demised Premises, Tenant shall cause the amount of such taxes
to be paid to the taxing authority in sufficient time to prevent filing of
such a tax lien or to prevent such interference. In such event, any interest
which has accrued with respect to such taxes shall be paid by the party
commencing such proceedings.
(c) Tenant shall pay all personal property taxes assessed against it or
in connection with its use of the Demised Premises on its personal property
located at or used in connection with the Leased Premises.
4. REPAIR AND MAINTENANCE.
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Tenant shall keep and maintain the Demised Premises in accordance with
the terms of the Reciprocal Easements.
5. ALTERATIONS.
(a) Tenant shall have the right, at its expense, from time to time, to
make such alterations and changes in the Buildings and the Land as it shall
deem expedient or necessary for its purposes, including, without limitation,
the unconditional right to demolish any existing or future buildings and/or
to construct new buildings, provided, however, that such alterations and
changes shall be in conformity with the Reciprocal Easements.
(b) Except in connection with the termination of this Lease as a result
of the exercise of Tenant's Purchase Option as set forth in Section 21 of
this Lease, unless otherwise agreed by the parties, any improvements or
fixtures which may be made or installed by either Landlord or Tenant upon the
Demised Premises and which Tenant may elect to leave on the Demised Premises
at the expiration or termination of this Lease shall be surrendered with the
Demised Premises as a part thereof; provided, however, that Tenant's
equipment, trade fixtures, inventory, furniture and other personal property
may be removed by Tenant from the Demised Premises at any time during the
term of this Lease or prior to the expiration or termination of this Lease,
provided that Tenant is not then in default.
6. USE OF THE DEMISED PREMISES AND THE BUILDING.
(a) Any other provision of this Lease to the contrary notwithstanding,
Tenant shall have the right to use the Demised Premises for the operation of
Tenant's Pressure Sensitive Business, being the business operations at the
Westbrook Facility acquired by Tenant from Landlord as of the Effective Date
of this Lease pursuant to that certain Asset Purchase Agreement between
Landlord and Tenant dated as of November 18, 1997 (the "Pressure Sensitive
Business"), or for any other industrial use, and for no other use or purpose.
(b) Tenant shall be responsible for the proper handling, accumulation,
storage (for less than 180 days), disposal, monitoring, inspection, and
closure (as well as response activities in the event of a release) required
in connection with any hazardous wastes (as defined in Maine Hazardous Waste
Rules, DEP Regs. Ch. 850 ET SEQ. and the Resource Conservation and Recovery
Act), stored (for less than 180 days) or generated by Tenant in connection
with its operations at the Demised Premises or otherwise in connection with
the Pressure Sensitive Business. Landlord shall be responsible for the
proper handling, storage, disposal, monitoring, closure and response
activities required in connection with any such hazardous wastes used, stored
or generated by Landlord in connection with its operations at the Westbrook
Facility. Each party hereby grants to the other party such right of access
to and use of such portions of the Demised Premises and
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adjacent property, or other property leased, owned or controlled by such
party (including pipes, conduits, transportation and movement areas,
equipment and conveyancing systems), to the extent necessary for or required
by law for the above purposes.
(c) Tenant shall have the right to place on or in the Demised Premises
such signs as Tenant deems necessary and proper in the conduct of its
business, provided that all such signs shall conform to all laws, ordinances
and regulations.
(d) Except as otherwise provided in the Site Agreement with respect to
the obligations of Landlord thereunder, Tenant, at its own expense, shall
during the Term of this Lease promptly comply with all laws, ordinances and
lawful orders and regulations affecting the Demised Premises and the
cleanliness, safety, accessibility, occupation, emergency response and use of
the same, including, without limitation, any federal, state or local
statutes, laws, regulations, rules and ordinances relating to protection of
health, safety or the environment, and to accessibility by persons with
disabilities; provided, however that Tenant may refrain from complying with
any such law, ordinance, rule or regulation so long as the validity thereof
shall be contested by Tenant in good faith by appropriate proceedings and so
long as Landlord shall not incur any fine, penalty or other liability in
connection therewith.
(e) In addition to and not in limitation of the other provisions of
this Lease, Tenant covenants that it will not introduce on, in or under the
Demised Premises, Tenant's Easements or the Westbrook Facility any Hazardous
Materials, as hereafter described, except such Hazardous Materials as are
used or generated in the ordinary conduct of Tenant's business in compliance
with all applicable Environmental Laws as hereafter described, and that
Tenant will not violate any Environmental Laws in connection with Tenant's
use, maintenance or operation of the Demised Premises, and Tenant shall, and
hereby does defend, save, and hold harmless Landlord, its employees, agents,
officers, trustees, and directors, shareholders, partners, successors and
assigns (the "Indemnified Landlord Parties") from and against, and shall
promptly pay to or reimburse the Indemnified Landlord Parties for, all
claims, demands, actions, losses, penalties, costs, expenses and damages,
including all reasonable attorneys fees and court costs, investigation and
laboratory fees, corrective action, clean-up and removal costs incurred by or
asserted against the Indemnified Landlord Parties by reason of the inaccuracy
or breach of the covenant contained in this subparagraph, or as a result of a
release or presence of Hazardous Materials on or affecting the Demised
Premises as a result of the acts or negligence of Tenant or any party acting
on Tenant's behalf. Upon termination of this Lease, Tenant covenants and
agrees to remove any and all Hazardous Materials in, on, under or to the
Demised Premises, to the extent that said Hazardous Materials were placed or
released in, on or under the Demised Premises by Tenant's operations, acts or
negligence, and to dispose of all such materials as required by all
applicable laws, and to undertake such closure of any hazardous waste
activity or facility of Tenant at the Demised Premises to the extent required
by law, at its sole expense, and for the purpose
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of conducting such activities Landlord hereby grants to Tenant the right of
access to the Demised Premises, the Building, and Landlord's adjacent
properties for such period and for such purposes as may be required for
Tenant to complete such activities. Unless otherwise agreed by Landlord and
Tenant, and in addition to any other restoration or surrender obligations set
forth elsewhere in this Lease, Tenant further agrees that upon termination of
this Lease other than in connection with exercise of the Purchase Option, as
hereinafter defined, Tenant shall remove from the Demised Premises any
equipment or other property of Tenant that contains Hazardous Materials
introduced by Tenant. Tenant acknowledges and agrees that the expiration or
sooner termination of this Lease shall not relieve or release Tenant of any
legal liability and responsibility whether by way of damages, penalties, or
remedial actions resulting from unlawful discharges of Hazardous Materials by
Tenant or any party acting on Tenant's behalf.
As used herein, "Hazardous Materials" shall mean any flammable
explosives, ultrahazardous materials, biomedical waste, radioactive
materials, hazardous materials, hazardous or special waste, petroleum or
petroleum products, hazardous matter, hazardous or toxic substances,
hazardous chemicals, or toxic pollutants, pollutants, air contaminant, oil or
waste oil as any of those terms are used or defined in common law, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, ET SEQ.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 2802, ET SEQ.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901,
ET SEQ.), the Toxic Substances Control Act, as amended (15 U.S.C Sections
2601, ET SEQ.), the Safe Drinking Water Act, as amended (42 U.S.C. Sections
300(f), ET SEQ.), the Clean Air Act, as amended (42 U.S.C. Sections 7401, ET
SEQ.), the implementing regulations of the Occupational Health and Safety Act
(29 C.F.R. Section 1910.1200(c)), and applicable Maine laws and regulations,
including without limitation, the Uncontrolled Hazardous Substances Sites Law
(38 M.R.S.A. Sections 1361, ET SEQ.), the Hazardous Waste and Hazardous
Matter Control Law and its implementing regulations (38 M.R.S.A. Sections
1317, ET SEQ.; DEP Regs. Chs. 800, 801,850, et seq., and 900), and applicable
ordinances of the City of Xxxxxxxxx, or any similar applicable federal, state
or local law, or in the regulations adopted and promulgated pursuant thereto,
including all amendments to such laws and regulations and all supplements or
successors thereto (such Acts, statutes, laws and regulations together with
the Acts, statutes, laws and regulations referred to hereinafter in this
subparagraph being sometimes referred to herein as "Environmental Laws"), or
any other pollutants, contaminants, substances or materials that may
constitute a hazard, peril or threat to the health of persons, animals, plant
life or the environment; excepting, however, "Hazardous Materials" shall not
for the purposes hereof include any materials or substances in amounts or
concentrations insufficient to require any remedial action under any
then-applicable Environmental law or order of the federal, state or local
governments. The provisions of this Section shall survive the termination or
expiration of the term of this Lease, unless the Purchase Option is
exercised by Tenant.
(f) Subject to the provisions and limitations contained in Sections
13.1(b) - (c) of the Asset Purchase Agreement between Landlord and Tenant,
dated as of November
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18, 1997 (as in effect from time to time, the "Asset Purchase Agreement"),
Tenant may perform, at its expense, a Phase II site assessment subsequent to
the commencement of this Lease on the Demised Premises, excepting the Tenant
Easements. In the event that such report indicates the presence of Hazardous
Materials at the Demised Premises in excess of levels permitted by
Environmental Law for which Tenant will be making a Claim against Landlord
under Section 13 of the Asset Purchase Agreement, Tenant shall promptly
deliver a copy of such report to Landlord. Upon receipt of such report,
Landlord shall, subject to the provisions and limitations contained in
Sections 13.1(b) - (c) of the Asset Purchase Agreement, develop a plan for
remediation of such Hazardous Materials (a "Remediation Plan") and submit
such Remediation Plan to Tenant within sixty (60) days of the date on which
Landlord received the report of the Phase II findings from Tenant, and shall
thereafter proceed expeditiously to remediate the Demised Premises in
accordance with the terms of the Remediation Plan, to the extent required and
in compliance with Environmental Law and subject to the provisions and
limitations contained in Sections 13.1(b)-(c) of the Asset Purchase Agreement.
7. INDEMNITY AND RELEASE.
(a) Subject to the provisions of Sections 7(c) through 7(g), Tenant
covenants and agrees, at its sole cost and expense and in addition to any
other right or remedy of Landlord hereunder, to indemnify and hold Landlord
and its affiliates harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel (collectively,
the "Losses"), related to or arising directly or indirectly out of any of the
following ("Tenant Indemnity Matters"):
(i) any breach by Tenant of any covenant, obligation or undertaking
made by Tenant in this Lease;
(ii) any violation by Tenant or its agents of any Law (including any
Environmental Laws) or Applicable License at any future time, to the
extent said violation is caused by Tenant or any of its employees or
agents at any time prior to termination of this Lease; and
(iii) any Release or Threatened Release of Hazardous Materials by
Tenant or its employees or agents at, on, into or from the Westbrook
Facility (including the Demised Premises) occurring on or after the
date hereof.
(b) Subject to the provisions of Sections 7(c) through 7(g), Landlord
covenants and agrees, at its sole cost and expense and in addition to any
other right or remedy of Tenant hereunder, to indemnify and hold Tenant and
its affiliates harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel
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(collectively, the "Losses"), related to or arising directly or indirectly
out of any of the following ("Landlord Indemnity Matters"):
(i) any breach by Landlord of any covenant, obligation or
undertaking made by Landlord in this Lease;
(ii) any violation by Landlord or its agents of any Law (including
any Environmental Laws) or Applicable License at any future time,
to the extent said violation is caused by Landlord or any of its
employees or agents at any time prior to termination of this Lease;
and
(iii) any Release or Threatened Release of Hazardous Materials by
Landlord or its employees or agents at, on, into or from the
Westbrook Facility occurring on or after the date hereof.
(c) CONTROL AND PARTICIPATION.
(i) With respect to matters indemnified pursuant to this Section
7 and relating to an Agency Action, the party obligated to provide
indemnification hereunder (the "Indemnifying Party") upon accepting its
responsibility and liability therefor, shall have full control in
dealing and negotiating with the cognizant regulatory authorities in
order to settle all matters giving rise to the Loss; provided, however,
that (A) the party entitled to indemnification hereunder (the
"Indemnified Party") shall have the right to attend, at its own expense,
any meetings with the regulatory authorities and to receive, upon
request, copies of all correspondence, reports, or other documents
submitted or received by or on behalf of the Indemnifying Party, and (B)
the Indemnifying Party shall not, without the prior written consent of
the Indemnified Party (which shall not be unreasonably withheld) take
any measure or step that imposes any unreasonable burden or encumbrance
upon the conduct of the Indemnified Party's operations.
(ii) Where Remedial Action is required pursuant to this Section 7,
the Indemnifying Party shall have the opportunity to perform such Remedial
Action, and the Indemnified Party agrees that it shall grant or exercise
reasonable efforts to cause to be granted to the Indemnifying Party a
right of reasonable access to the affected real property and agrees that
it will exercise reasonable efforts to obtain a similar right of access
to any leased real property from the Indemnified Party's tenants, for
the purpose of undertaking such Remedial Action; provided, however, that
such Remedial Action shall be conducted in a manner so as to assure no
material interference with ongoing operations. In addition, all
Remedial Actions conducted by the Indemnifying Party shall be conducted
in compliance with all applicable Laws (including Environmental Laws)
and in a manner so as not to violate any of the Indemnified Party's
licenses and permits.
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(iii) With respect to any action, suit, proceeding or demand
instituted against the Indemnified Party by a third party, other than an
Agency Action or Remedial Action (a "THIRD PARTY CLAIM"), upon receipt
of such notice from the Indemnified Party, the Indemnifying Party shall
be entitled to participate in the defense of such Third Party Claim, and
if and only if each of the following conditions is satisfied, the
Indemnifying Party may assume the defense of such Third Party Claim, and
in the case of such an assumption the Indemnifying Party shall have the
authority to negotiate, compromise and settle such Third Party Claim:
(A) the Indemnifying Party confirms in writing that it is
obligated hereunder to indemnify the Indemnified Party with respect to
such Third Party Claim; and
(B) the Indemnifying Party establishes to the reasonable
satisfaction of the Indemnified Party that the Indemnifying Party has
(and will continue to have) adequate financial resources to satisfy and
discharge such action or claim.
The Indemnified Party shall retain the right to employ its own
counsel and to participate in the defense of any Third Party Claim, the
defense of which has been assumed by the Indemnifying Party pursuant
hereto, but the Indemnified Party shall bear and shall be solely
responsible for its own costs and expenses in connection with such
participation.
Notwithstanding the foregoing provisions of this Section 7(c): (i)
no Indemnifying Party shall be entitled to settle any Third Party Claim
without the Indemnified Party's prior written consent unless as part of
such settlement the Indemnified Party is released in writing from all
liability with respect to such Third Party Claim and (ii) no Indemnified
Party shall be entitled to settle any Third Party Claim without the
Indemnifying Party's prior written consent unless as part of such
settlement the Indemnifying Party is released in writing from all
liability with respect to such Third Party Claim.
(d) JOINT RESPONSIBILITY. With respect to Tenant's indemnification
obligations under Section 7(a) and the Landlord's indemnification obligations
under Section 7(b), to the extent that any Losses relate to or arise directly
or indirectly out of any matter, event or occurrence that constitutes a
Landlord Indemnity Matter and any matter, event or occurrence that
constitutes a Tenant Indemnity Matter, such that both Landlord and Tenant
could be entitled to indemnification with respect thereto (for example, a
release of a Hazardous Material that was caused partially by the actions of a
Landlord employee and partially by the actions of a Tenant employee), the
respective indemnification obligations of Landlord and Tenant shall be
equitably apportioned between them based on the parties' comparative
responsibilities.
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(e) INSURANCE PROCEEDS.
(i) No Indemnified Party shall be obligated to pursue or collect from
any insurer prior to making a claim for indemnification pursuant to this
Section 7 and no Indemnifying Party shall be entitled to postpone
performance of any indemnification obligation under this Section 7 while an
insurance claim is pending. However, without limiting any of the
provisions of Section 7(a) through 7(g), in connection with any matter
subject to indemnification under this Section 7, Tenant and Landlord shall
cooperate with each other in giving notice of any claim to any insurer
(including an insurer of an Indemnified Party) and shall provide reasonable
assistance in the collection of any such claim; provided, however, that
there is no duty to provide notice, cooperate or assist with respect to an
Indemnified Party's insurance policies where the Indemnified Party
determines in its sole discretion that such notice, cooperation or
assistance could invalidate any portion of the coverage available under
such policy or result in the imposition of retroactive premiums or
prospective premium increases. In addition, if an Indemnified Party makes
such a determination after it has notified its insurer, it shall be
entitled to retract such notice.
(ii) If an Indemnified Party actually receives insurance proceeds, the
amount for which such Indemnified Party is entitled to indemnification
under this Section 7 shall be reduced by an equal amount. In the event an
Indemnified Party receives insurance proceeds after being paid by the
Indemnifying Party with respect to an indemnifiable matter under this
Section 7, the Indemnified Party will remit such proceeds to the
Indemnifying Party, up to the amount previously paid by the Indemnifying
Party with respect to such matter.
(f) SCOPE OF THIS SECTION 7. Landlord and Tenant each acknowledge and
agree that, except for equitable relief, including specific performance, its
and their sole and exclusive remedy with respect to any and all claims
relating to or arising out of this Lease shall be subject to this Section 7.
(g) CONSEQUENTIAL AND OTHER DAMAGES WAIVER.
(i) Neither Landlord nor Tenant shall be liable, whether in contract,
in tort (including negligence and strict liability) or otherwise, for any
special, indirect, incidental or consequential damages whatsoever, which in
any way arise out of, relate to, or are a consequence of, its performance
or nonperformance hereunder, including but not limited to, loss of profits
or revenue or the loss of use thereof, business interruptions and claims of
customer.
(ii) The provisions of this Section 7(g) shall prevail over any
inconsistent or conflicting provisions set forth in this Lease.
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8. INSURANCE.
(a) At all times during the Term of this Lease, Tenant shall maintain
(i) commercial general liability insurance (including, without limitation,
premises, independent contractors, contractual liability, products complete
operation, fire legal liability and a broad form of comprehensive general
liability endorsement) with limits of not less than Three Million Dollars
($3,000,000) combined for bodily injury, death and property damage (such
amount of insurance to be increased from time to time as is customary for
insurance of such type to reasonably reflect inflation and other matters);
and (ii) all-risk extended fire and casualty insurance on the Buildings and
the Demised Premises, and on Tenant's personal property and equipment at
replacement cost value. Spinnaker may elect to satisfy the requirements of
this subsection 3.5(a) through the maintenance of a blanket insurance policy
including all of the elements described herein.
(b) At all times during the Term of this Lease, Landlord shall maintain
(i) commercial general liability insurance (including, without limitation,
premises, independent contractors, contractual liability, products complete
operation, fire legal liability and a broad form of comprehensive general
liability endorsement) with limits of not less than Three Million Dollars
($3,000,000) combined for bodily injury, death and property damage (such
amount of insurance to be increased from time to time as is customary for
insurance of such type to reasonably reflect inflation and other matters.
(c) All public liability insurance required by this Lease to be
maintained by Landlord or Tenant shall name the other party as an additional
insured. All casualty insurance required by this Lease to be maintained by
Tenant shall name Landlord as a loss payee, as its interest may appear. Each
party shall provide to the other current certificates of such insurance as it
is required to maintain. Such certificates shall provide that any change
restricting or reducing any such coverage or the cancellation of any policy
under which any such certificate is issued shall not be valid except upon
twenty (20) days notice in writing to Landlord and Tenant of such change or
cancellation. All such policies shall be obtained from responsible insurance
companies qualified to do business in the State of Maine and in good standing
therein. Insofar as and to the extent that the following provisions may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in
the State of Maine (even though extra premium may result therefrom), Landlord
and Tenant mutually agree, and their insurance policies shall provide, that
with respect to any loss which is covered by insurance then being carried by
them, respectively, or which would be covered by insurance policies required
by this Lease if such policies had no deductible amount, the one carrying or
required to carry such insurance and suffering said loss releases the other
of and from any and all claims with respect to such loss; and they further
mutually agree that their respective insurance companies shall have no right
of subrogation against the other on account thereof, nor
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shall the party suffering the loss have any claim against the other party
with respect to any such loss not covered by its insurance that would have
been covered had insurance policies maintained by the injured party had no
deductible amount. This provision is intended to restrict each party (as
permitted by law) to recoveryagainst insurance carriers to the extent of such
coverage, and waive fully, and for the benefit of each, any rights and/or
claims which might give rise to a right of subrogation in any insurance
carrier.
9. ACCESS TO PREMISES.
Landlord shall have the right to enter the Demised Premises in
accordance with the terms and conditions of the Reciprocal Easements.
10. FIRE OR OTHER CASUALTY. In the event that at any time during the
Term of this Lease the Demised Premises or any portion thereof shall be
damaged or destroyed in whole or in part by fire or other cause, then this
Lease shall remain in effect without abatement, and Tenant, at its sole cost
and expense, shall promptly remove from the Demised Premises any and all
debris to the extent necessary to maintain accessibility by Landlord to
Landlord's Easements, and shall keep the Demised Premises in a safe condition
and in compliance with all applicable laws, but Tenant shall have no
obligation to restore or rebuild any improvements (although Tenant may do so
at its option).
11. EMINENT DOMAIN.
If, after the execution and prior to the expiration of the Term hereof,
all or any portion of the Demised Premises shall be taken under the power of
eminent domain, then this Lease shall remain in effect as to the portion of
the Demised Premises not so taken. The entire award for any taking shall
belong to Tenant, except such amount as may relate to Landlord's Easements,
equipment or other personal property of Landlord located on the Demised
Premises or any portion of the Westbrook Facility other than the Demised
Premises.
12. ASSIGNMENT AND SUBLEASING.
12
This Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither this
Lease nor the rights or obligations of any party hereunder shall be
assignable or transferable by such party without the prior written consent of
the other party hereto; provided that Landlord may assign its rights and
obligations (a) in connection with the transfer of all or a portion of the
Westbrook Facility, to any person or entity who agrees in writing with the
Landlord and the Tenant to assume and perform all of Landlord's obligations
under this Lease, or (b) as collateral security for its lenders, and provided
further, that Tenant may assign its rights and obligations, including its
option rights, hereunder (a) in connection with the sale of all or
substantially all of the Tenant's assets, to any person or entity who agrees
in writing with the Landlord and the Tenant to assume and perform all of the
Tenant's obligations under this Lease, and (b) as collateral security for its
lenders.
13. DEFAULT.
(a) Tenant or Landlord shall be in default in the performance of its
obligations under this Lease if any one or more of the following events
(herein sometimes called "events of default") shall occur:
(1) if such party fails to make due and punctual payment of any
installment of rent when and as the same shall become due and payable, and
such failure shall continue for a period of ten (10) days after written
notice from the other party specifying the items in due; or
(2) if either party fails to perform or comply with any of the
agreements, terms, covenants or conditions in this Lease provided, other
than those referred to in the foregoing subparagraph (1), and such default
shall continue for a period of thirty (30) days after written notice from
the other party specifying the items in default, or in case of a default or
contingency which cannot with due diligence be cured within thirty (30)
days, the defaulting party fails to proceed within said thirty (30) day
period to commence to cure the same and thereafter to prosecute the curing
of such default with due diligence and within a period of time which under
all prevailing circumstances shall be reasonable; or
(3) if either party shall file a voluntary petition in bankruptcy or
shall be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
state or federal bankruptcy or insolvency statute or law, or shall seek or
consent to the appointment of any bankruptcy or insolvency trustee,
receiver or liquidator of such party or of all or any substantial part of
its properties or of such party's interest in the Building; or
13
(4) if within sixty (60) days after the commencement of any
proceeding against such party seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future state or federal bankruptcy act or any other
present or future state or federal bankruptcy or insolvency statute or law,
such proceeding shall not have been dismissed, or, if, within sixty (60)
days after the appointment, without the consent or acquiescence of such
party, of any trustee, receiver or liquidator of such party or of all or
substantially all of its properties or of such party's interest in the
Building, such appointment shall not have been vacated or stayed on appeal
or otherwise, or if within sixty (60) days after the expiration of any such
stay, such appointment shall not have been vacated
Upon the occurrence of any event of default described in Subsection 13(a)(1)
or 13(a)(2), the non-defaulting party shall have the right to institute an
arbitration claim against the defaulting party seeking specific performance
of its obligations under this Lease and seeking damages for such default, in
accordance with the arbitration procedures set forth in Subsection 13(c)
hereinbelow; and shall also have the right to exercise the self-help remedies
set forth in Subsection 13(b) hereinbelow. Landlord shall not have the right
to terminate this Lease or to require that Tenant vacate the Demised Premises
under any circumstances, nor shall Tenant have the right to terminate this
Lease except on the occurrence of a Substantial Event of Default by Landlord
as hereinafter defined. A Substantial Event of Default shall be deemed to
exist if Landlord fails to perform or comply with any covenant, agreement, or
obligation of Landlord under this Lease and such failure causes substantial
danger to the life or health of persons in or around the Building or to the
Building or the property located therein, or otherwise causes the
non-defaulting party to be unable to safely continue its business operation
in the Building in compliance with law and either (i) such failure continues
for more than sixty (60) consecutive days, or (ii) such failure occurs and
is not cured in accordance with Subsection 13(a)(2) hereinabove, more than
three (3) times during the Term of this Lease.
(b) Upon the occurrence of any event of default described in Subsection
13(a)(2) hereinabove, the non-defaulting party may (in addition to any other
remedy provided in this Lease) at any time thereafter (after applicable cure
periods) cure such default for the account of the defaulting party and the
defaulting party shall reimburse the other party for any amount paid and any
expense or contractual liability so incurred, and provided that any amounts
due from Tenant shall be deemed additional rent due and payable with the next
installment of monthly rent and any amount due from Landlord may be deducted
by Tenant from any rent due hereunder; provided however, that either may cure
any such default as aforesaid prior to the expiration of said waiting period
but after notice to the other party, if it is necessary to protect the
Demised Premises or the Building or to prevent injury or damages to persons
or Property.
(c) Any controversy or claim arising out of or relating to this Lease
or the breach thereof shall be settled by binding, private and confidential
arbitration.
14
Arbitration may be initiated by either Landlord or Tenant and, unless
otherwise agreed in writing by Landlord and Tenant, shall be administered by
the American Arbitration Association, or its successor, under its Commercial
Arbitration Rules, and judgment on the decision rendered by the arbitrator
may be entered in any court having jurisdiction thereof. If the American
Arbitration Association has ceased to exist or to perform private commercial
arbitration, then the arbitration shall be administered by its designated
successor or by a similar nationally recognized commercial arbitration
organization under its applicable rules for commercial arbitration as
designated by the party initiating the arbitration, and in the event of any
dispute between the parties as to the designation of the entity to administer
the arbitration, either party may apply to the Superior Court of Cumberland
County for the designation of the administrator and the applicable rules for
conduct of the arbitration
(d) EACH OF LANDLORD AND TENANT TO THE FULLEST EXTENT PERMITTED BY LAW,
IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE TO INCIDENTAL, CONSEQUENTIAL
OR SPECIAL (INCLUDING PUNITIVE OR MULTIPLE) DAMAGES BASED UPON, OR ARISING
OUT OF, THIS LEASE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR
ACTIONS OF ANY OF THEM RELATING THERETO.
(e) Landlord agrees, in the event of its bankruptcy, to (i) promptly
file a motion with the Bankruptcy Court seeking to assume the Lease under
Section 365 of the Bankruptcy Code, and (ii) consent to termination of the
automatic stay under Section 362 of the Bankruptcy Code, upon Tenant's
motion, to allow Tenant to avail itself of its rights under the Lease,
including, without limitation, its right to exercise its Purchase Option
and/or Additional Land Option as hereinafter described.
14. COVENANT OF QUIET ENJOYMENT.
Upon the payment of the Base Rent and observing, keeping and performing
all of the terms and provisions of this Lease on its part to be observed,
kept and performed, Tenant may lawfully, peaceably and quietly have, hold,
occupy and enjoy the Demised Premises during the Term without hindrance or
ejection by any persons lawfully claiming under Landlord, subject to the
terms and conditions of this Lease, and Landlord hereby covenants and agrees
to defend Tenant's rights hereunder against the claims of any persons
claiming under or through Landlord, subject to the Permitted Title Exceptions
as hereinafter defined. It is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be
binding upon Landlord and Landlord's successors only with respect to breaches
occurring during Landlord's interest hereunder.
15. ESTOPPEL CERTIFICATE.
At any time, and from time to time, upon the written request of Landlord
or Tenant,
15
or any mortgagee, the other party within ten (10) days of the date of such
written request agrees to execute and deliver to the requesting party and/or
such mortgagee, and in a form reasonably satisfactory to the requesting party
and/or such mortgagee, a written statement: (i) ratifying this Lease; (ii)
confirming the commencement and expiration dates of the term of this Lease;
(iii) certifying, to the best of its knowledge, that Tenant is in occupancy
and has accepted possession of the Demised Premises, and that the Lease is in
full force and effect and has not been modified, assigned, supplemented or
amended except by such writings as shall be stated; (iv) certifying, to the
best of its knowledge, that all conditions and agreements under this Lease to
be satisfied or performed by each party have been satisfied and performed
except as shall be stated; (v) certifying, to the best of its knowledge, that
the other party is not in default under this Lease and there are no defenses
or offsets against the enforcement of this Lease by either party, or stating
the defaults and/or defenses claimed; (vi) reciting the amount of advance
Base Rent, if any, paid by Tenant and the date to which such Base Rent has
been paid; (vii) reciting the amount of security deposited with Landlord, if
any; and (viii) any other information which the requesting party or the
mortgagee may reasonably require.
16. MECHANIC'S LIENS.
Tenant shall not permit any mechanic's lien, materialmen's lien, or
other lien to be placed or to remain against the Demised Premises and/or
Tenant's interest therein, to the extent that any such lien encumbers any
interest in the Westbrook Facility other than the Demised Premises and/or
Tenant's interest therein, which lien may arise out of any payment due for or
purported to be due for, any labor, services, materials, supplies, or
equipment alleged to have been furnished to or for Tenant in, upon or about
the Demised Premises at the direction or request of Tenant or with its
consent or approval. If any such lien does arise, Tenant agrees to discharge
such lien promptly, either by payment or by filing of the necessary bond, or
otherwise; provided, however, that during the Term of this Lease, Tenant may
elect to refrain from discharging such lien provided that Tenant shall be
contesting such lien in good faith, and provided further that Tenant promptly
shall discharge such lien if required in connection with any financing by
Landlord, or sale of Landlord's property or otherwise required by any third
party dealing with Landlord. Tenant shall indemnify and hold Landlord
harmless against any liability, loss, damage, cost or expense, including
attorneys fees, as a result of Tenant's failure to promptly discharge any
such lien.
17. NOTICES.
(a) All notices, demands or other communications hereunder shall be in
writing, and shall be deemed to have been duly given if delivered personally
or if mailed by certified United States mail, return receipt requested,
postage prepaid, or if sent by overnight courier or sent by written
telecommunication, as follows:
If to Tenant:
16
Spinnaker Industries, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
Telecopier: 214/855-0093
with copies sent contemporaneously to :
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier: 214/922-4193
Spinnaker Coating - Maine, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: Vice President - Operations
Telecopier: 207/856-4742
Spinnaker Coating, Inc.
000 X. Xxxxx Xxxxxx
Xxxx, Xxxx 00000-0000
Attention: X.X. Xxxxxxxxxx
Telecopier: 937/335-2843
If to the Landlord:
S. D. Xxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telecopier: 617/368-6580
with copies sent contemporaneously to:
S. D. Xxxxxx Company
00 Xxxxxxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxx, Xxxxx 00000
Attention: Plant Manager
Telecopier: 207/856-1346
17
Either party shall have the right to designate in writing served as above a
different address to which any notice or communication should be delivered to
it.
18. HOLDOVER.
If Tenant or any party claiming through or under Tenant shall remain or
continue to be in possession of the Demised Premises or any part thereof
after the termination of this Lease other than pursuant to Tenant's exercise
of the Purchase Option, then, at Landlord's option, Tenant or such party or
both shall be deemed to be illegally retaining possession, or Tenant or such
party or both shall be deemed to be a month to month tenant of the Demised
Premises on all the terms and conditions of this Lease except that the
monthly rent payable hereunder shall be twice the amount of thethen fair
market rental value of the Demised Premises as determined by independent
appraisal. Nothing herein shall be construed to limit Landlord's rights to
obtain possession of the Demised Premises upon termination of this Lease by
unlawful detainer proceedings or otherwise in the event that Landlord does
not exercise its option to treat the continued possession by Tenant or any
party claiming through or under Tenant as a month to month tenancy.
19. ENFORCEABILITY OF LEASE.
This Lease may be modified or altered only by agreement in writing
between Landlord and Tenant. All rights, obligations and liabilities herein
given to, or imposed upon, the respective parties hereto shall extend to and
bind the successors and assigns of the said parties; and if there shall be
more than one party constituting Tenant or Landlord, they shall all be bound
jointly and severally by the terms, covenants and agreements herein. If,
however, approval of Landlord is required by the express terms of this Lease
for any assignee of Tenant, then in that event alone no rights shall inure to
the benefit of such assignee of Tenant unless the assignment to such party
has been approved by Landlord. Any and all prior discussions, undertakings,
agreements and understandings of the parties are superseded by this Lease,
which alone fully and completely express their entire agreement. There are
no promises, agreements, representations, warranties, conditions or
understandings, either oral or written, between the parties hereto, except as
set forth herein.
20. DEFINITION OF LANDLORD.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners at the time in question of the Demised
Premises, or any Portion of the Demised Premises. If the interest of the
Landlord named herein in the Demised Premises, or any Portion of the Demised
Premises, is transferred, whether by sale, foreclosure, or otherwise, the
named Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder arising after the date of
such transfer with respect to the property transferred, provided that such
transferee shall covenant and
18
agree in writing for the benefit of Tenant that such transferee has assumed
and agreed to carry out any and all covenants and obligations of the Landlord
hereunder with respect to such property.
21. TENANT'S OPTION TO PURCHASE.
In consideration of the terms and conditions of this Lease, the Site
Agreement, and Tenant's purchase of the Pressure Sensitive Business from
Landlord, Landlord hereby grants to Tenant the right and option to purchase
the Demised Premises and the Additional Land, as hereinafter defined, at any
time during the term of this Lease for a purchase price of One Dollar ($1.00)
(the "Purchase Option"). Any such purchase of the Demised Premises and the
Additional Land by Tenant shall be in "as is" condition, without any
warranty, representation or covenant of any kind by Landlord other than those
set forth in the Asset Purchase Agreement (which are incorporated herein by
reference); provided, however that Landlord shall convey the Demised Premises
and the Additional Land to Tenant by quitclaim deed with covenant, subject to
the Reciprocal Easements, the exceptions to title set forth on EXHIBIT C
attached hereto and made a part hereof (the "Permitted Exceptions to Title"),
and subject to such other exceptions to title placed against the Demised
Premises by Tenant or as a result of Tenant's use or occupancy of the Demised
Premises, or as may be approved by Tenant. At the time of closing, the
Reciprocal Easements, to be recorded on the date of this Lease, shall become
perpetual in duration, as provided therein, without the need for any further
instrument or agreement. Tenant shall exercise the Purchase Option by notice
to Landlord given in writing at any time during the Term of this Lease, and
the closing on the sale of the Demised Premises and the Additional Land shall
take place on a date agreed by Landlord and Tenant, but not later than 60
days after the date of such notice of exercise, unless such date is extended
by agreement of Landlord and Tenant. Provided Tenant has not exercised the
Additional Land Option, as hereinafter defined, Tenant may elect in its sole
discretion to exercise the Purchase Option with respect to only the Demised
Premises, without the Additional Land. This Lease shall terminate as of the
date of the sale. Landlord shall not grant any mortgage or other encumbrance
or permit any lien against the Demised Premises and/or the Additional Land,
and/or Landlord's interest therein, arising through or under Landlord (but
not arising through or under Tenant) during the Term of this Lease. Any such
mortgage, lien or encumbrance created in violation of this provision shall
automatically be deemed to be subordinate to this Lease, the Purchase Option,
and the Additional Land Option as hereinafter defined. Landlord further
agrees in connection with any such sale of the Demised Premises and
Additional Land to remove any mortgage, lien or other encumbrance on the
Demised Premises or the Additional Land arising through or under Landlord
(but not arising through or under Tenant), but Landlord shall have no
obligation to cure any of the Permitted Exceptions to Title. Landlord agrees
to cooperate in good faith with Tenant should Tenant elect to cure any
Permitted Exception to Title with respect to the Demised Premises or the
Additional Land in connection with the exercise of the Purchase Option
19
by Tenant.
22. TENANT'S OPTION FOR ADDITIONS TO DEMISED LAND.
Tenant shall have the right at its option at any time during the term
of this Lease to add to the Demised Premises the additional land containing
approximately 46,480 square feet located adjacent to the Land shown and
labeled on the Site Plan as"Proposed Future Expansion Lease Area", and as
more particularly described on EXHIBIT D attached hereto (the "Additional
Land") in the event that Tenant determines, in its discretion, to use the
Additional Land for any use permitted hereunder, or other activities related
thereto, or if otherwise necessary to bring the Demised Premises and/or
Tenant's use thereof into compliance with applicable laws, ordinances and
regulations (the "Additional Land Option"). Tenant shall exercise the
Additional Land Option by notice to Landlord advising Landlord that Tenant
desires to add the Additional Land to the Demised Premises and describing the
expansion of Tenant's business or other activities or circumstances requiring
the Additional Land. In the event that Tenant elects to exercise the
Additional Land Option, Landlord and Tenant shall enter into an amendment to
this Lease adding the Additional Land as part of the Demised Premises,
subject to the Reciprocal Easements, and providing that the Additional Land
shall be subject to all of the terms and conditions of this Lease as
applicable to the Land, and shall otherwise be deemed to be a part of the
Land for all purposes. No additional Base Rent shall be payable by Tenant
with respect to the Additional Land.
20
23. MISCELLANEOUS PROVISIONS.
(a) WAIVER. Failure on the part of either party to complain of any
action or non-action on the part of the other party, no matter how long the
same may continue, shall never be deemed to be a waiver by such party of any
of its rights hereunder. Further, no waiver at any time of any of the
provisions hereof by either party shall be construed as a waiver of any of
the other provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval of either party to or of any
action by the other party requiring such consent or approval shall not be
deemed to waive or render unnecessary such consent or approval to or of any
subsequent similar acts. No payment by either party, or acceptance by either
party, of a lesser amount than shall be due from under this Lease shall be
treated otherwise than as a payment on account. The acceptance by either of
a check for a lesser amount with an endorsement or statement thereon, or upon
any letter accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and the recipient may accept such check
without prejudice to any other rights or remedies which the recipient may
have against the other party.
(b) INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
(c) GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State of Maine.
(d) RECORDING. The parties agree not to record this Lease, but each
party hereto agrees to execute a short form memorandum of this Lease in
recordable form in compliance with the requirements of 33 M.R.S.A. Section
201, as amended, and satisfactory to Landlord and Tenant, which memorandum of
lease may be recorded by either party, and also to record the Reciprocal
Easements executed this date. The memorandum shall set forth in sufficient
detail so as to provide record notice thereof both the Purchase Option and
the Additional Land Option, but in no event shall such memorandum set forth
the rental or other charges payable by Tenant under this Lease. The
memorandum shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms and
conditions hereof. Upon termination of this lease Landlord and Tenant agree
to record a memorandum stating that this lease has been terminated.
(e) SECTION HEADINGS. The section headings throughout this instrument
are for convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify, or aid in the interpretation,
construction, or meaning of the
21
provisions of this Lease.
(f) INTERPRETATION. Whenever in this Lease provision is made for the
doing of any act by any party, it is understood and agreed that said act
shall be done by such party at its own cost and expense.
(g) CONTROLLING DOCUMENTS. In the event of any inconsistencies between
the provisions of this Lease and the provisions of the Site Agreement between
the parties of even date herewith, the provisions of the Site Agreement shall
be controlling during the term of the Site Agreement. In the event of any
inconsistencies between the provisions of this Lease and the provisions of
the Asset Purchase Agreement between the parties dated November 18, 1997 (the
"Asset Purchase Agreement") with respect to the terms and provisions of this
Lease, the provisions of this Lease shall be controlling, except for matters
set forth in Article 13 of the Asset Purchase Agreement. This Lease, the
Site Agreement, the Asset Purchase Agreement, the Lease Agreement between the
parties executed as of the date of this Lease governing Tenant's lease of
certain building space from Landlord (the "Space Lease"), and the
Declaration of Reciprocal Easements, Restrictions and Covenants executed this
date by Landlord and Tenant, including all exhibits, schedules and
attachments thereto, contain the entire understanding of the parties with
respect to the subject matter thereof, supersede all prior agreements and
understandings relating to the subject matter thereof and shall not be
amended except by a written instrument hereafter signed by each of the
parties thereto.
(h) CONSTRUCTION. The language used in this Lease will be deemed to be
the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party.
(i) CAPITALIZED TERMS. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Site
Agreement.
(j) COUNTERPARTS. This Lease may be simultaneously executed in any
number of counterparts, each of which when so executed and delivered shall be
an original; but such counterparts shall constitute but one and the same
instrument.
[the next page is the signature page]
22
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the date set forth in the introductory paragraph of this Lease.
LANDLORD:
S.D. XXXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Its: Vice President and Chief
Financial Officer
-------------------------------
Printed Name: Xxxxxx X. Xxxxxx
----------------------
TENANT:
SPINNAKER COATING - MAINE, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Its: Vice President, Corporate
Development
-------------------------------
Printed Name: Xxxx X. Xxxxxxxx
----------------------
23
EXHIBIT A
TO LEASE AGREEMENT
SITE PLAN OF LANDLORD'S WESTBROOK FACILITY
EXHIBIT B
TO LEASE AGREEMENT
SURVEYOR'S LEGAL DESCRIPTION OF THE LAND
EXHIBIT C
TO LEASE AGREEMENT
PERMITTED EXCEPTIONS TO TITLE
1. Water and Sewer Pipeline Easement granted by Xxxxx Paper Company to
Portland Water District, dated February 5, 1976 and recorded in the
Cumberland County Registry of Deeds in Book 3808, Page 30.
2. Rights, easements and conditions granted by Xxxxx Paper Company to
Portland Water District, dated March 23, 1976 and recorded in the Cumberland
County Registry of Deeds in Book 3823, Page 26.
3. Rights and easements granted by Xxxxx Paper Company to Central
Maine Power Company and New England Telephone and Telegraph Company,
consisting of a line of two poles, dated March 29, 1978 and recorded in the
Cumberland County Registry of Deeds in Book 4205, Page 247.
4. Rights of others in and to the use of easements appurtenant to the
Demised Premises and terms and conditions relative to the use thereof.
5. All matters and notes as shown or referred to on a plan entitled
"Buildings and Grounds, Civil Site Plan, Spinnaker Lot" for S. D. Xxxxxx
Company by Sebago Technics, Inc., Westbrook Maine, dated February 12, 1998,
last revised March 3, 1998, S.D. Xxxxxx Drawing No. CD-62792, referred to in
the foregoing Lease Agreement as the "Site Plan," including but not limited
to title in and to land referenced in Notes 7 & 8, but excepting the last
sentence of Note 5.
6. Terms and conditions of the Declaration of Reciprocal Easement,
Restrictions and Covenants by and between S.D. Xxxxxx Company and Spinnaker
Industries, Inc. referred to in the foregoing Lease Agreement as the
"Reciprocal Easements."
7. All matters and notes as shown or referred to on a plan entitled
"Buildings and Grounds, Civil Site Plan Spinnaker Lot/Easements," S. D.
Xxxxxx Drawing No. CD-62873, prepared by Xxxxxx X. Xxxxxx, P.E. of Sebago
Technics, dated February 12, 1998, last revised March 3, 1998, referred to in
the aforesaid Reciprocal Easements as the "Easement Plan," excepting the last
sentence of Note 5.
8. All matters and notes as shown or referred to on a plan entitled
"ALTA/ACSM Land Title Survey (Urban Class) of Spinnaker Lot, Xxxxxx Ave.,
Westbrook, Maine," prepared for Spinnaker Industries, Inc. by Xxxxxx X.
Xxxxxx, P.E. of Sebago Technics, dated February 20, 1998, last revised March
2, 1998.
9. Rights and easements granted to Central Maine Power Company and New
England Telephone and Telegraph Company as set forth in an instrument from
S.D. Xxxxxx Company, dated July 19, 1996 and recorded in the Cumberland
County Registry of Deeds in Book 12712, Page 289.
10. Such state of facts as would be disclosed by an accurate survey of
the easements appurtenant to the premises.
EXHIBIT D
TO LEASE AGREEMENT
SURVEYOR'S LEGAL DESCRIPTION OF THE ADDITIONAL LAND
