Exhibit - 10(b)(vi)
AMENDED AND RESTATED LEASE
Between
XXXXXX XXXXXXX
d/b/a STEPAR LEASING COMPANY
(Landlord)
and
AMERICAN TECHNICAL CERAMICS CORP.
(Tenant)
Effective as of September 25, 1998
TABLE OF CONTENTS
ARTICLE A
THIS LEASE..............................................................-2-
ARTICLE I
DEMISED PREMISES........................................................-3-
ARTICLE II
TERM OF LEASE...........................................................-3-
ARTICLE III
RENT....................................................................-3-
ARTICLE IV
PAYMENT OF TAXES & ASSESSMENTS..........................................-5-
ARTICLE V
USE OF PREMISES.........................................................-8-
ARTICLE VI
REPAIRS AND MAINTENANCE................................................-10-
ARTICLE VII
COMPLIANCE WITH LAWS, ORDINANCES, ETC..................................-11-
ARTICLE VIII
INDEMNIFICATION OF LANDLORD............................................-13-
ARTICLE IX
MECHANIC'S LIENS.......................................................-13-
ARTICLE X
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.........................-15-
ARTICLE XI
INSURANCE..............................................................-15-
ARTICLE XII
DAMAGE OR DESTRUCTION..................................................-18-
ARTICLE XIII
CONDEMNATION...........................................................-22-
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ARTICLE XIV
DEFAULT PROVISIONS.....................................................-28-
ARTICLE XV
ARBITRATION............................................................-33-
ARTICLE XVI
ASSIGNMENT; MORTGAGE; SUBLETTING.......................................-34-
ARTICLE XVII
MORTGAGE OF THE FEE....................................................-36-
ARTICLE XVIII
QUIET ENJOYMENT........................................................-37-
ARTICLE XIX
ESTOPPEL CERTIFICATE...................................................-37-
ARTICLE XX
NOTICES...............................................................-38-
ARTICLE XXI
SURRENDER OF PREMISES..................................................-39-
ARTICLE XXII
RE-ENTRY...............................................................-39-
ARTICLE XXIII
CUMULATIVE REMEDIES - NO WAIVER - NO ORAL CHANGE.......................-40-
ARTICLE XXIV
EFFECT OF SALE.........................................................-42-
ARTICLE XXV
CAPTIONS...............................................................-42-
ARTICLE XXVI
COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES.......................-42-
ARTICLE XXVII
EXECUTION OF SHORT FORM LEASE..........................................-43-
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ARTICLE XXVIII
RENEWAL OPTIONS........................................................-43-
ARTICLE XXIX
OPTION TO PURCHASE.....................................................-48-
ARTICLE XXX
RIGHT OF FIRST OFFER...................................................-54-
EXHIBIT AREAL PROPERTY DESCRIPTION.........................................-57-
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AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE, entered into as of the 25th day of
September, 1998 between XXXXXX XXXXXXX d/b/a STEPAR LEASING COMPANY, having an
office at Xxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000 ("Landlord") and
AMERICAN TECHNICAL CERAMICS CORP., a Delaware corporation having an office at
Xxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000("Xxxxxx").
RECITALS
1. Xxxxxx Xxxxxxx, by Indenture of Lease dated as of July 15, 1976 (the
"Original Lease"), leased to Phase Industries, Inc. the real property and
certain improvements located thereon at 00 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, Xxx
Xxxx, which real property is more particularly described on Exhibit A annexed
hereto and made a part hereof.
2. Phase Industries, Inc., a New York corporation, after changing its name
to American Technical Ceramics Corp., was merged in 1985 into American Technical
Ceramics Corp., a Delaware corporation, the Tenant hereunder.
3. The Original Lease has been amended by documents dated and entitled as
follows:
A. Extension of Lease Agreement dated April 4, 1981 between Landlord
and Phase Industries, Inc.;
B. Extension of Lease Agreement dated October 6, 1983 between
Landlord and Phase Industries, Inc.;
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C. Amendment to Lease Agreement dated May 8, 1984 between Landlord
and Phase Industries, Inc.;
D. Second Amendment to Lease Agreement dated June 15, 1987 between
Landlord and Tenant;
E. Second Amendment to Lease Agreement dated as of February 9, 1989
between Landlord and Tenant; and
F. Third Amendment of Lease dated as of January 1, 1997 between
Landlord and Tenant.
(As so amended, the Original Lease is hereafter referred to as the
"Existing Lease.")
4. Landlord and Tenant want to further amend and restate the Existing Lease
in one unified document.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE A
THIS LEASE
This Amended and Restated Lease is intended to and hereby does amend and
restate the Existing Lease in such a fashion as to render this document (this
"Lease") the fully integrated instrument setting forth the understandings of the
parties in full without reference back to the Existing Lease. The leasehold
estate created by the
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Existing Lease remains uninterrupted, but the agreements between Landlord and
Tenant with respect thereto are governed entirely by this Lease.
W I T N E S S E T H:
ARTICLE I
DEMISED PREMISES
That the Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved, mentioned and contained, on the part of the
Tenant, its successors and assigns, to be paid, kept and performed, has demised
and leased, and by these presents does demise and lease unto the Tenant, and the
Tenant does hereby take and hire, upon and subject to the conditions hereinafter
expressed, the real property bounded and described on Exhibit A hereto annexed
and made part hereof.
The term "demised premises" as hereinafter used in this Lease, shall be
deemed to include the land, as described in Exhibit A, and the buildings and
improvements located thereon.
ARTICLE II
TERM OF LEASE
TO HAVE AND TO HOLD the said demised premises unto the Tenant, for and
during a term terminating on December 31, 2001 unless the said term shall be
sooner terminated or extended as hereinafter provided.
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ARTICLE III
RENT
The Tenant covenants and agrees to pay to the Landlord, in advance on the
first day of each month during the term of this Lease an amount equal to
one-twelfth (1/12th) of the rent per annum at the address of the Landlord, as
set forth herein, or at any other address of which written notice may be given
to the Tenant, a net rental over and above the other and additional payments to
be made by the Tenant, as provided in this Lease. Such per annum amount shall
equal the then current annual payments of principal and interest payable by
Landlord, as borrower, under the Mortgage, dated as of February 9, 1989, between
Landlord and European American Bank. In addition, commencing as of January 1,
1990, and as of January 1 of each succeeding calendar year during the term of
this Lease, Tenant shall pay to Landlord as rent hereunder an annual amount
equal to the percentage increase (but not decrease) in the Price Index
(hereinafter defined) for such month over the Price Index for January, 1989,
multiplied by the annual net ground rental otherwise payable pursuant to this
paragraph. Such amount shall be payable in advance in equal monthly installments
on the first day of each calendar month during the term of this Lease. For
purposes of this Lease, the phrase "Price Index" shall mean the Consumer Price
Index for All Urban Consumers (New York City) (1967-100), published by the
Bureau of Labor Statistics of the United States Department of Labor, specified
for "All Items," or, if the same is no longer published, a successor or
substitute index reasonably selected by Landlord.
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It is the purpose and intent of the Landlord and Tenant that the rent
specified herein shall be absolutely net to the Landlord so that this Lease
shall allow to the Landlord the rent and additional rent specified herein.
Except where otherwise expressly provided for herein, throughout the entire
term of this Lease, the Tenant will also pay without notice and without
abatement, deduction or set-off, as additional rent, all sums, Impositions (as
defined in Article IV), costs, expenses and other payments which Tenant in any
of the provisions of this Lease assumes to pay and in the event of any
non-payment thereof, the Landlord shall have (in addition to all other rights
and remedies) all the rights and remedies provided for herein or by law in the
case of non-payment of the base or net rent.
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ARTICLE IV
PAYMENT OF TAXES & ASSESSMENTS
Tenant will pay or cause to be paid before any fine, penalty, interest or
cost which may be added thereto for the non-payment thereof, all realty tax
increases assessed after November 20, 1977, assessments, water and sewer rents,
rates and charges, charges for public utilities, excises, levies, license and
permit fees and other governmental charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which
at any time during the term of this Lease may have been or may be assessed,
levied, confirmed, imposed upon, or grow out of or in respect of or become a
lien on the demised premises or any part thereof or any appurtenance thereto, or
with respect to any personal property installed upon the premises of with
respect to any use or occupation of the demised premises. All such taxes,
assessments, water and sewer rents, rates and charges, excises, levies, license
fees and other governmental charges being hereinafter referred to as
"Impositions," and any of the same being hereinafter referred to as an
"Imposition."
If by law any Imposition may, at the option of the taxpayer, be paid in
installments (whether or not interest shall accrue on the unpaid balance of such
Imposition), Tenant may exercise the option to pay the same, together with any
accrued interest on the unpaid balance of such Imposition, in installments and,
in such event, shall pay such installments as may become due during the term of
this Lease as the same respectively become due and before any fine, penalty,
further interest or cost may be added thereto.
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Nothing herein contained shall require Tenant to pay income taxes assessed
against the Landlord, estate, succession or transfer taxes of the Landlord; it
is however, provided, that if at any time during the term of this Lease the
present method of taxation or assessment shall be changed so that the whole or
any part of the taxes, assessments, levies, Impositions or charges now levied,
assessed or imposed on real estate and the improvements thereon shall be levied,
assessed and imposed wholly or partially, either as a capital levy or otherwise,
on the rents received therefrom or any tax, assessment, levy, Imposition or
charge or any part thereof which shall be measured by or based in whole or in
part upon the land or upon the buildings constituting a portion of the demised
premises or the personal property therein contained and shall be imposed upon
the Landlord, then all such taxes, assessments, levies, Impositions or charges
or the part thereof so measured or based shall be deemed to be included within
the term "Impositions" for the purposes hereof, to the extent that such tax
would be payable, if the demised premises or personal property were the only
property of the Landlord subject to such tax and Tenant will pay and discharge
the same as herein provided in respect of the payment of Impositions.
Tenant will furnish to the Landlord, within thirty (30) days after the date
when any Imposition would become due and payable, official receipts of the
appropriate taxing authorities, or other evidence satisfactory to Landlord
evidencing the payment thereof.
The Tenant shall have the right to contest the amount or validity of any
Imposition by appropriate legal proceedings (but this shall not be deemed or
construed in any way as relieving, modifying or extending the Tenant's covenants
to pay or its
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covenants to cause to be paid any such Imposition at the time and in the manner
as in this Article provided), on condition, however, that such legal proceedings
shall not operate to prevent the collection of the Imposition so contested and
shall not cause the sale of the demised premises, or any part thereof, to
satisfy the same, and the Tenant shall have deposited with a bank or trust
company, as Trustee, as security for the payment of such Imposition, money in an
amount sufficient to pay such Imposition, together with all interest and
penalties in connection therewith, and all charges that may or might be assessed
against, or become a charge on, the demised premises, or any part thereof, in
said legal proceedings. Upon termination of such legal proceedings, or at any
time when the Landlord shall deem the moneys deposited with said bank or trust
company to be insufficient security for the purpose for which they are
deposited, the Tenant shall forthwith, upon demand, deposit with such
depository, such additional money as is sufficient and necessary for the purpose
for which said money was originally deposited, and upon failure of the Tenant so
to do, the said moneys so deposited shall be applied to the payment, removal and
discharge of said Imposition and the interest and penalties in connection
therewith and the charges and costs accruing in such legal proceedings, and the
balance, if any, shall be paid to the Tenant, provided the Tenant is not in
default under this Lease. In the event that such moneys shall be insufficient
for this purpose, the Tenant shall forthwith pay over to the Landlord an amount
of money sufficient, together with the moneys so deposited pursuant to this
Article, to pay the same. In the event of any default by the Tenant under this
Lease, the Landlord is authorized to use the money deposited under this Article
to apply on
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account of such default or to pay the said Imposition. The Tenant shall not be
entitled to interest on the moneys deposited pursuant to this Article.
The Landlord agrees to join in any such proceedings if the same be required
to legally prosecute such contest of the validity of such Imposition; provided,
however, that the Landlord shall not thereby be subjected to any liability for
the payment of any costs or expenses in connection with any proceedings brought
by the Tenant; and the Tenant covenants to indemnify and save harmless the
Landlord from any such costs and expenses. The Tenant shall be entitled to any
refund of any such Imposition and penalties or interest thereon which have been
paid by the Tenant or paid by the Landlord and for which the Landlord has been
fully reimbursed.
The certificate, advice or xxxx of the appropriate official designated by
law to make or issue the same or to receive payment of any such Imposition, of
the non-payment of any such Imposition, shall be conclusive evidence that such
Imposition is due and unpaid at the time of the making or issuance of such
certificate, advice or xxxx.
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ARTICLE V
USE OF PREMISES
The Tenant shall use the demised premises, without warranty by the Landlord
as to such use being permissible thereon, for the manufacture of capacitors, or
such other lawful use or uses which are permitted under the zoning ordinances of
the Town of Huntington as they are presently constituted or may hereafter be
constituted, which uses would not require any variance or change of zone or
specified uses necessitating a public hearing before an appropriate board of the
Town of Huntington, and the Tenant will not use or allow the demised premises or
any part thereof to be used or occupied for any unlawful purpose or in violation
of any Certificate of Occupancy or Certificate of Compliance covering the use of
the demised premises or any part thereof or in violation of any permit or
requirements connected with the use of the demised premises or any part thereof
and will not suffer any act to be done or any condition to exist in the demised
premises or any part thereof or any article to be brought thereon which may be
dangerous, unless safeguarded as required by law, or which may, in law,
constitute a nuisance, public or private, or which may make void or voidable any
insurance then in force with respect thereto.
Tenant hereby grants unto the Landlord permission for it or its authorized
representatives to enter the demised premises at all reasonable times, and upon
24 hours notice and without interference with Tenant's business, for the purpose
of inspecting the same and making all necessary repairs thereto and performing
any work thereon that may be necessary by reason of Tenant's failure to make
such repairs or
13
perform any such work or to commence the same after written notice from
Landlord. Nothing herein shall imply any duty on the part of the Landlord to do
any such work, and performance thereof by the Landlord shall not constitute a
waiver of Tenant's default in failing to perform the same. The Landlord shall
have the right to enter the demised premises at all reasonable times, and upon
24 hours notice and without interference with Tenant's business, during the
usual business hours, for the purpose of showing same to prospective purchasers
or mortgagees, if any, of the demised premises.
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ARTICLE VI
REPAIRS AND MAINTENANCE
15
Tenant agrees that, beginning on the date it takes possession of the
demised premises and continuing throughout the term of this Lease, at its sole
cost and expense, it will keep and maintain the demised premises, including,
without limitation, any altered, rebuilt or additional buildings, structures,
equipment, machinery, fixtures, furnishings and other personal property,
improvements and appurtenances thereto, in good repair and appearance, and will
with reasonable promptness make all structural and nonstructural, foreseen and
unforeseen, and ordinary and extraordinary changes, repairs, and replacements of
every kind and nature which may be required to be made upon or in connection
with the demised premises or any part thereof in order to keep and maintain the
demised premises in such good repair and appearance. All such changes, repairs
and replacements shall be of first class quality sufficient for the proper
maintenance and operation of the demised premises. Tenant shall not permit the
accumulation of waste or refuse matter, nor permit anything to be done on the
demised premises which would invalidate or prevent the procurement of any
insurance policies which may at any time be required pursuant to the provisions
of Article XI. Landlord shall not be required to maintain, repair or rebuild or
to make any alterations, replacements or renewals of any nature or description
in or to the demised premises or any part thereof, whether ordinary or
extraordinary, structural or nonstructural, foreseen or unforeseen, or to
maintain the demised premises or any part thereof in any way, and Tenant hereby
expressly waives any right to make repairs at the expense of Landlord which may
be provided for in any statute or law in effect at the time of the execution of
this lease or any statute or law which may thereafter be enacted.
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ARTICLE VII
COMPLIANCE WITH LAWS, ORDINANCES, ETC.
The Tenant shall, throughout the demised term, and at no expense whatsoever
to the Landlord, promptly comply, or cause compliance, with all laws and
ordinances and the orders, rules, regulations and requirements of all federal,
state, county and municipal governments and appropriate departments,
commissions, boards and officers thereof, structural or non-structural, foreseen
or unforeseen, ordinary as well as extraordinary, and whether or not the same
shall presently be within the contemplation of the parties hereto or shall
involve any change of governmental policy or require structural or extraordinary
repairs, alterations or additions and irrespective of the cost thereof, which
may be applicable to the demised premises, including, without limitation, the
fixtures and equipment thereof and the sidewalks, curbs and vaults, if any,
adjoining the demised premises.
The Tenant shall have the right to contest by appropriate legal proceeding,
before any tribunal having jurisdiction, whether judicial or administrative,
without cost or expense to the Landlord, the validity of any law, ordinance,
order, rule, regulation or requirement of the nature herein referred to;
provided, however, that if requested to do so by the Landlord, the Tenant shall
first furnish to the Landlord a bond, in form and amount, and issued by a surety
company, reasonably satisfactory to the Landlord, guaranteeing to the Landlord
compliance by the Tenant with such law, ordinance, order, rule, regulation or
requirement, and indemnifying the Landlord against any and all liability, loss
and damage which the Landlord may sustain by reason of the Tenant's
17
failure or delay in complying therewith. The Landlord shall have the right, but
shall be under no obligation, to contest by appropriate legal proceedings, at
the Landlord's expense, any such law, ordinance, rule, regulation or
requirement.
No abatement, diminution or reduction of the annual rental, or of any
additional rent or other charges required to be paid by the Tenant pursuant to
the terms of this Lease, shall be claimed by, or allowed to, the Tenant for any
inconvenience, interruption, cessation or loss of business or otherwise caused,
directly or indirectly, by any present or future laws, rules, requirements,
orders, directions, ordinances or regulations of the United States of America,
or of the State, County or City governments, or of any other municipal,
governmental or lawful authority whatsoever, or by priorities, rationing or
curtailment of labor or materials, or by war, civil commotion, strikes or riots,
or any matter or thing resulting therefrom, or by any other cause or causes
beyond the control of the Landlord, nor shall this Lease be affected by any such
cause. No diminution of the amount of space used by the Tenant caused by legally
required changes in the construction, equipment, operation or use of the demised
premises shall entitle the Tenant to any reduction or abatement of annual
rental, additional rent or any other charges required to be paid by the Tenant
hereunder.
Tenant shall likewise observe and comply with the requirement of all
policies of public liability and fire insurance and all other policies of
insurance at any time in force with respect to the demised premises.
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ARTICLE VIII
INDEMNIFICATION OF LANDLORD
Landlord shall not in any event whatsoever be liable for any injury or
damage to any person happening on or about the demised premises, or for any
injury or damage to the demised premises, or to any property of Tenant, or to
any property of any other person, firm, association or corporation on or about
the demised premises. Tenant shall indemnify and save harmless Landlord from and
against any and all liability, loss, cost, expense and damages and from and
against any and all suits, claims and demands of every kind and nature,
including reasonable counsel fees, by or on behalf of any person, firm,
association or corporation, arising out of or based upon any accident, injury or
damage, however occurring, which shall or may happen on or about the demised
premises, or in or about the street parking lots, sidewalks or curbs in front of
or adjacent thereto.
In case any action or proceeding is brought against Landlord by reason of
any such claim, Tenant, upon written notice of the Landlord, and at Tenant's
expense, shall resist or defend such action or proceeding by counsel approved by
Landlord, in writing, such approval not to be unreasonably withheld.
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ARTICLE IX
MECHANIC'S LIENS
20
The Tenant shall not suffer or permit any mechanic's or artisan's or other
liens to be filed or placed or exist against the fee of the demised premises nor
against the Tenant's leasehold interest in said premises by reason of work,
labor, services or materials supplied or claimed to have been supplied to the
Tenant or anyone holding the demised premises or any part thereof through or
under the Tenant, and nothing in this Lease contained shall be deemed or
construed in any way as constituting the consent or request of the Landlord,
expressed or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for specific improvement, alteration or repair of or
to the demised premises or any part thereof, nor as giving the Tenant any right,
power or authority to contract for or permit the rendering of any services or
the furnishing of any materials that would give rise to the filing of any
mechanic's or other liens against the fee of the demised premises. If any such
mechanic's lien shall at any time be filed against the demised premises, the
Tenant shall cause the same to be discharged of record within sixty (60) days
after the date of filing the same or, in the alternative, the Tenant may bond
the lien and deliver a copy of the said bond to the Landlord within the said 60
day period. If the Tenant shall fail to discharge such mechanic's lien or
deliver said bond within such period, then, in addition to any right or remedy
of the Landlord, the Landlord may, but shall not be obligated to, discharge the
same either by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit in court or bonding, and in such event the Landlord
shall be entitled, if the Landlord so elects, to compel the prosecution of an
action for the foreclosure of such mechanic's
21
lien by the lienor and to pay the amount of the judgment, if any, in favor of
the lienor with interest, costs and allowances. Any amount paid by the Landlord
for any of the aforesaid purposes, or for the satisfaction of any other lien,
not caused or claimed to be caused by the Landlord, and all reasonable legal and
other expenses of the Landlord, including reasonable legal and other expenses of
the Landlord, including reasonable counsel fees, in defending any such action or
in about procuring the discharge of such lien, with all necessary disbursements
in connection therewith, with interest thereon at the rate of six percent (6%)
per annum from the date of payment shall be repaid by the Tenant to the Landlord
on demand and if unpaid may be treated as additional rent under the terms of
this Lease, and the same may, at the option of the Landlord, be added to any
fixed rent then due or thereafter falling due hereunder.
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ARTICLE X
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
In the event that the Tenant shall make default in the performance of any
of the terms, covenants and provisions herein contained and shall fail to
correct the same after notice, the Landlord may perform the same for the account
of the Tenant and the reasonable cost thereof paid by the Landlord in the
performance of the same shall be deemed to be additional rent payable by the
Tenant for the demised premises, and the same shall be payable to the Landlord
on demand, or the same may, at the option of the Landlord, be added to any fixed
rent then due or thereafter falling due thereunder; and the Tenant covenants to
pay or cause to be paid any such sums or sums as aforesaid; and the Landlord
shall have (in addition to any right or remedy of the Landlord) the same rights
and remedies in the event of the non-payment thereof by the Tenant as in the
case of default by the Tenant in the payment of rent.
ARTICLE XI
INSURANCE
Tenant, at its sole cost and expense, will, throughout the entire term of
this Lease, keep the land and the building upon the demised premises insurable
for the mutual benefit of the Landlord and the Tenant during the term of this
Lease against loss or damage by fire and against loss or damage by other risks
now embraced by "Extended Coverage" in amounts sufficient to prevent Landlord
from becoming a co-insurer under the terms of the applicable policies, but in
any event in an amount not less than eighty percent (80%) of the then full
insurable value of such building. The
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term "full insurable value" shall mean actual replacement cost. Such "full
insurable value" shall be determined from time to time (but not more frequently
than once in any twenty-four (24) calendar months) by a written statement of the
Landlord's insurance representative. In the event Tenant should disagree with
the amount so stated to be required, then in that event, such "full insurable
value" shall be determined by an appraiser, engineer, architect or contractor
designated by the Landlord and paid by the Tenant. No omission on the part of
the Landlord to request any such determination shall relieve Tenant of any of
its obligations under this Article XI.
Tenant, at its sole cost and expense, but for the mutual benefit of
Landlord and Tenant, shall maintain:
(a) personal injury and property damage liability insurance against claims
for bodily injury, death or property damage, occurring thereon, in or about the
demised premises, property and passageways, such insurance to afford minimum
protection, during the term of this Lease, of not less than $1,000,000.00] in
respect of bodily injury or death to any one person, and of not less than
$2,000,000.00 in respect of any one accident, and of not less than $10,000.00
for property damage.
(b) Such other insurance and in such amounts as may from time to time be
reasonably required by Landlord against other insurable hazards which are at the
time commonly insured against in the case of premises similarly situated, due
regard being, or to be, given to the height and type of building, its
construction, use and occupancy.
All insurance provided for in this Article XI shall be effected under valid
and enforceable policies issued by insurers of recognized responsibility which
are licensed
24
to do business in the State of New York. Upon the commencement of this Lease,
and thereafter not less than 30 days prior to the expiration dates of the
expiring policies theretofore furnished pursuant to this Article XI, or any
other Article of this Lease, originals of the policies bearing notations
evidencing the payment or premiums or accompanied by other evidence satisfactory
to Landlord of such payment, shall be delivered by Tenant to Landlord.
All policies of insurance shall be carried in favor of the Landlord, the
Tenant and any fee mortgagees, as their respective interest may appear. Each
policy or certificate therefor issued by the insurance company shall, to the
extent obtainable, contain an agreement by the insurer that such policy shall
not be canceled without at least ten (10) days prior written notice to the
Landlord or to any mortgagee to whom loss thereunder may be payable.
If at any time during the term of this Lease Landlord shall request that
the amount of liability insurance provided by Tenant as required by the
provisions of this Article XI, be increased on the ground that such coverage is
inadequate properly to protect the interest of Landlord, or if Landlord shall
require other insurance pursuant to other provisions of this Article XI, and
Tenant shall refuse to comply with any such request or requirement, the dispute
shall be submitted to arbitration as provided in Article XV hereof. Tenant shall
thereafter carry the amount, and such kind of insurance as determined by such
arbitration to be adequate and required, but in no event shall the amount of
public liability insurance be less than the amounts now specified in this
Article XI.
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The Tenant further covenants and agrees, any law to the contrary
notwithstanding, that no loss or damage by fire or other casualty, of or to the
building and improvements at any time on the demised premises, shall operate to
terminate this Lease or to relieve or discharge the Tenant from the payment of
taxes, insurance premiums, Impositions, rent, additional rent and any moneys to
be treated as rent hereunder, as the same becomes due and payable, as
hereinbefore provided, or from the performance and fulfillment of any of the
Tenant's obligations and undertakings herein.
ARTICLE XII
DAMAGE OR DESTRUCTION
In case of casualty to the demised premises resulting in damage or
destruction, Tenant shall promptly give written notice thereof to Landlord.
Regardless of the amount of any such damage or destruction, Tenant shall at its
sole cost and expense, and whether or not the insurance proceeds, if any, shall
be sufficient for the purpose, restore, repair, replace, rebuild or alter the
same as nearly as possible to its value, condition and character immediately
prior to such damage or destruction, unless Tenant and Landlord mutually agree
to revisions or that a different type building be built or that no building be
built. Such restoration, repairs, replacements, rebuilding or alterations shall
be commenced promptly and prosecuted with reasonable diligence, unavoidable
delays excepted.
All insurance money paid to Landlord on account of such damage or
destruction, less the actual cost, fees and expenses, if any, incurred in
connection with adjustment
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of the loss, shall be applied by Landlord to the payment of the cost of the
aforesaid demolition, restoration, repairs, replacement, rebuilding or
alterations, including the cost of temporary repairs or for the protection of
property pending the completion of permanent restoration, repairs, replacements,
rebuilding or alterations (all of which temporary repairs, protection of
property and permanent restorations, repairs, replacement, rebuilding or
alterations are hereinafter collectively referred to as the "restoration"), and
shall be paid out from time to time as such restoration progresses upon the
written request of Tenant which shall be accompanied by the following:
(1) A certificate signed by the Tenant, dated not more than 30 days prior
to such request, setting forth the following:
(A) That the sum then requested either has been paid by Tenant, or is
justly due to contractors, sub-contractors, materialmen, engineers, architects
or other persons who have rendered services or furnished materials for the
restoration therein specified, the names and addresses of such persons, a brief
description of such services and materials, the several amounts so paid or due
to each of said persons in respect thereof, that no part of such expenditures
has been or is being made the basis, in any previous or then pending request,
for the withdrawal of insurance money or has been made out of the proceeds of
insurance received by Tenant, and that the sum then requested does not exceed
the value of the services and materials described in the certificate.
(B) That except for the amount, if any, stated (pursuant to the foregoing
subclause (1) (A)) in such certificate to be due for services or materials,
there is no
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outstanding indebtedness known to the persons signing such certificate, after
due inquiry, which is then due for labor, wages, materials supplies or services
in connection with such restoration which, if unpaid, might become the basis of
a vendor's, mechanic's, laborer's or materialman's statutory or similar lien
upon such restoration or upon the demised premises or any part thereof or upon
Tenant's leasehold interest therein.
(C) That the cost, as estimated by the persons signing such certificate, of
the restoration required to be done subsequent to the date of such certificate
in order to complete the same, does not exceed the insurance money, plus any
amount deposited by Tenant to defray such cost and remaining in the hands of
Landlord after payment of the sum requested in such certificate.
(2) An opinion of counsel or other evidence, reasonably satisfactory to
Landlord, to the effect that there has not been filed with respect to the
demised premises or any part thereof or upon Tenant's leasehold interest therein
any vendor's, mechanic's, laborer's, materialman's or other lien which has not
been discharged of record, except such as will be discharged by payment of the
amount then requested.
Upon compliance with the foregoing provisions, Landlord shall, out of such
insurance money, pay or cause to be paid to Tenant or the persons named
(pursuant to subclause (1) (A) above) in such certificate the respective amounts
stated therein to have been paid by Tenant or to be due to it, as the case may
be.
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If the insurance money at the time held by Landlord, less the actual cost,
fees and expenses, if any, incurred in connection with the adjustment of the
loss, shall be insufficient to pay the entire cost of such restoration, Tenant
will pay the deficiency.
Upon receipt by Landlord of satisfactory evidence, of the character
required by clauses (1) and (2) above, that the restoration has been completed
and paid for in full and that there are no liens of the character referred to
therein, any balance of the insurance money at the time held by Landlord shall
be paid to Tenant.
The Tenant shall procure Workmen's Compensation insurance covering all
persons employed in connection with the work and with respect to whom death or
bodily injury claims could be asserted against Landlord, Tenant or the demised
premises, and also procure, maintain and furnish to the Landlord general
liability builders' risk, and such other insurance and in such amounts as may
from time to time be required by the Landlord against other insurable hazards
which, at the time are commonly insured against in the case of demolition of
existing building and improvements, and construction of a new building and
improvements.
No destruction of or damage to the demised premises or any part thereof by
fire or any other casualty shall permit Tenant to surrender this Lease or shall
relieve Tenant from its liability to pay the full rent and additional rent and
other charges or Impositions payable under this Lease or from any of its other
obligations under this Lease, and Tenant waives any rights now or hereafter
conferred upon it by statute or otherwise to quit or surrender this Lease or the
demised premises or any part thereof, or to any suspension, diminution,
abatement or reduction of rent on account of any such
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destruction or damage, except to the extent to which the Landlord shall have
received and retained a net sum as proceeds of any rent insurance.
In the event that the Tenant erects any new building and improvements in
accordance with the provisions of this Lease, all of the provisions of this
Lease with respect to the obligations of the Tenant in connection with any
building and improvements on the demised premises shall apply with equal force
and effect to such new building and improvements.
ARTICLE XIII
CONDEMNATION
1. DEFINITIONS
(a) A title vesting in a condemnation proceeding is the date fixed by the
appropriate law when the condemnor became vested with title and specifically
includes a vesting of title de facto - as well as de jure whichever occurs
earlier. Condemnation proceeding shall also include within its definition a
private purchase in lieu of condemnation.
(b) Building improvements include but are not limited to stores, offices,
apartments and all structures on the land which can be rented or leased for the
protection of income to the owner.
(c) Land improvements are defined to include water and sewer mains and
connections, telephone and electric lines, blacktop paving of parking areas,
water storage tanks, etc.
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(d) Tenant's fixtures are defined and listed generally and specifically as
plumbing, heating, air conditioning, special water lines, installation costs of
heavy machinery, built-in cabinets, refrigerators, freezers, storage rooms, fish
tanks and their associated components.
(e) The Tenant shall have no claim in any condemnation proceeding in the
event of a total or partial taking unless the rental specified in this Lease is
less than the economic or market value rental for this space on the day of
taking. Value of the land means the value of the demised premises as if vacant,
unencumbered and unimproved on the date of vesting.
(f) Partial taking is defined as the taking of less than 50% of the land
and buildings thereon.
2. LEASE
If, at any time during the term of this Lease, title to the whole or
substantially all the demised premises shall be taken in condemnation
proceedings or by any right of eminent domain, then and in that event, this
Lease shall terminate on the date of such taking and the rent and any additional
rent reserved herein shall be apportioned and paid to the date of such taking.
Substantially all of the demised premises shall be deemed to have been taken if
the portion remaining cannot reasonably be used, after restoration, to a
complete architectural unit for the conduct and operation of a building for
manufacturing capacitors including necessary accessory parking.
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3. TOTAL OR SUBSTANTIAL TAKING; DISTRIBUTION OF PROCEEDS
In the event of total taking or taking of substantially all of the demised
premises as hereinabove defined, the rights and interests of the Landlord and
Tenant in and to the entire award (including interest), or the aggregate of any
separate awards (made by the court or otherwise), after payment of all
reasonable fees and expenses incurred by both parties in connection with the
establishing and collection of such awards, shall be apportioned as follows: the
Landlord shall be entitled to receive and retain such portion of the award as
shall represent compensation for the value of the land and improvements thereon,
including severance and consequential damages to the remainder. The Tenant shall
receive no compensation for this leasehold value, if any, and shall be entitled
solely to compensation for fixtures owned by it at time of vesting and good
will. Tenant's fixtures shall not include the electric wiring, air conditioning
ducts, heating units and conduits, floors and ceilings all of which items shall
be included in the Landlord's share of the award.
4. UNSUBSTANTIAL PARTIAL TAKING (less than 50%)
In the event of partial taking or a taking of less than substantially all
of the demised premises (as hereinbefore defined) the term of this Lease shall
not be reduced or affected in any way and the Tenant shall restore the
improvements in accordance with sub-division 4(c) hereinafter set forth. The
awards shall be apportioned as follows:
(a) The Landlord shall first be entitled to receive and retain such portion
of the award or awards with the interest thereon as shall represent compensation
for the
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value of the land or the part thereof so taken considered at the option of
Landlord as vacant and unimproved, or based on economic value at the time of the
taking, plus severance and consequential damages (but after giving effect to the
completion of the restoration by Tenant) to the remainder considered as vacant
and unimproved.
(b) If the balance of said award or awards shall be in an amount of Fifty
Thousand ($50,000) Dollars or less such awards shall be paid to the Tenant for
application by the Tenant to the restoration and repair of the improvements on
the demised premises. If the balance of the award be an amount in excess of
Fifty Thousand ($50,000) Dollars, then, and in that event, said sum shall be
paid to the Landlord as Condemnation Trustee for application pursuant to the
terms of sub-section (e) of this clause.
(c) The Tenant, at its sole cost and expense, and whether or not the award
payable under sub-section (b) of this clause shall be sufficient for the
purpose, shall proceed with reasonable diligence to construct, repair, alter and
restore the remaining part of the demised premises so that said premises will
contain complete architectural units for use as a building for manufacturing
capacitors and related parking facilities, with that combination of rentable
space and facilities for the on-site parking of automobiles which will result in
the greatest number of square feet of rentable space permitted by the law of the
appropriate municipality or other governmental unit having jurisdiction thereof
(such construction, repairs, alterations or restoration, including temporary
repairs, referred to in this Condemnation Article XIII as "Restoration").
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(d) The conditions under which the Restoration is to be performed and the
method of proceeding with the performing of the same shall be covered by all of
the provisions of this Lease relating to the Restoration after fire. The cost of
the Restoration shall include the reasonable fees of an architect, if any,
employed by the Landlord for the purpose of examining and passing upon the plans
and specifications and supervising the Restoration.
(e) If the awards are deposited with the Landlord as Condemnation Trustee
under the provisions of sub-section (b) of this clause, the Landlord shall hold,
apply, make available and pay over to the Tenant the award in the same manner as
is provided with respect to insurance procedures under the appropriate
provisions of this Lease, provided that any balance of the award not used for
the Restoration shall be divided between Landlord and Tenant as follows:
(i) The Landlord shall be entitled to receive and retain such portion
of the balance of the award or awards with interest thereon as
the number of months elapsed since the commencement of the term
bears to the number of months from the commencement of the term
to the then scheduled expiration of the term, during which the
taking occurs.
(ii) The balance of any award or awards shall belong to the Tenant.
(f) In the event of a taking as described herein, there shall be no
abatement of rent allowed to Tenant.
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5 TEMPORARY EASEMENT TAKING
If the whole or any part of the demised premises or of Tenant's interest in
this Lease shall be taken in condemnation proceedings or by any right of eminent
domain for a temporary use or occupancy, the term of this Lease shall not be
reduced or affected in any way. Tenant shall continue to pay in full the rent,
additional fees and other charges herein reserved, in the manner and at the
times herein specified without reduction or abatement, and, except only to the
extent that Tenant is prevented from so doing by reason of any order of the
condemning authority, Tenant shall continue to perform and observe all of the
other covenants, agreements, terms and provisions of this Lease as though such
taking had not occurred.
In the event of any such taking, Tenant shall be entitled to receive the
entire amount of any award made for such taking whether such award is paid by
way of damages, rent or otherwise, unless such period of temporary use or
occupancy shall extend beyond the expiration date upon the term of this Lease.
In such latter case, the award, after payment to Landlord therefrom of the
estimated cost of Restoration of the demised premised to the extent that any
such award is intended to compensate for damage to the demised premises, shall
be apportioned between Landlord and Tenant as of such date of expiration in the
same ratio with the parts of the entire period for which such compensation is
made falling before the date of expiration and that part falling after, bear to
such entire period; provided, however, that if the portion of the award payable
to Tenant is made in a lump sum or is payable to Tenant other than in
35
equal monthly installments, Landlord shall have a right to collect such portion
of Tenant's award as shall be sufficient to meet:
(a) The payments due to Landlord from Tenant under the terms of this Lease
during the period of such temporary use or occupancy and Tenant's obligations
with respect to such payments shall xxxxx to the extent of the receipt of such
portion of the award by Landlord; and
(b) The estimated cost of Restoration of the demised premise after such
taking if for a period not extending beyond the expiration date of the term of
this Lease, which amount shall be made available to Tenant when and if during
the term of this Lease Tenant shall have restored the same as nearly as may be
reasonably possible to the condition in which the demised premises were
immediately prior to such taking.
6 SPECIAL CLAUSE FOR TENANT
Nothing contained in this Lease shall be deemed a waiver by Tenant of its
right to present a claim in the condemnation proceedings for loss of business
profits, loss of good will, and moving expenses, and these items shall be
compensable as subsequently determined by settlement or after trial as long as
the ultimate compensability of these items to the Tenant does not diminish any
award to the Landlord. Anything hereinbefore to the contrary notwithstanding,
there shall be no reduction of the rent nor shall Tenant have any right to elect
that the term hereby granted shall expire because of the acquisition of
underground rights of way not permanently transferred with the possession of any
structure erected on the demised premises, the land thereunder or the basement
space thereunder.
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ARTICLE XIV
DEFAULT PROVISIONS
If, during the term of this Lease, default shall be made in the due and
punctual payment of any rent or any additional rent or Impositions payable under
this Lease, when and as the same shall become due and payable, and such default
shall continue for a period of thirty (30) days after written notice, or if
default by the Tenant shall be made in the performance or compliance with any of
the covenants, agreements, terms, or conditions contained in this Lease other
than those referred to above in this paragraph and such default shall continue
for a period of thirty (30) days after written notice thereof from the Landlord
to Tenant, or in the case of default or contingency which cannot with due
diligence be cured within such period of thirty (30) days the Tenant fails to
proceed with all due diligence to cure the same and thereafter to prosecute the
curing of such default with all due diligence (it being intended that in
connection with a default not susceptible of being cured with due diligence
within thirty days that the time of Tenant within which to cure the same shall
be extended for such period as may be necessary to complete the same with all
due diligence); or
If the Tenant 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 federal bankruptcy
act or any other present or future applicable federal, state or other statute or
law or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any
37
substantial part of its properties or of the demised premises or if within
thirty (30) days after the commencement of any proceeding against Tenant
seeking any such reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief, such proceeding shall not have been dismissed,
or if within thirty (30) days after the appointment without the consent or
acquiescence of Tenant of any Trustee, receiver or liquidator of Tenant or all
or any substantial part of its properties or of the demised premises, such
appointment shall not have been vacated or stayed or appealed or otherwise, or
if within thirty (30) days after the expiration of any such stay, such
appointment shall not have been vacated, then and in any such of the events
hereinabove set forth Landlord at any time thereafter may give written notice
to Tenant specifying any event or events of default and stating that this Lease
and the term hereby demised shall expire and terminate on the day specified in
the notice, which shall be at least ten (10) days after the giving of such
notice and upon the date specified in such notice, this Lease and the term
hereby demised and all rights of the Tenant under this Lease shall expire and
terminate and Tenant shall remain liable as hereinafter set forth.
Upon any such expiration or termination of this Lease due to any of the
provisions herein or any termination by summary proceedings or otherwise, Tenant
shall quit and peacefully return the demised premises and the then building
thereon to the Landlord without any payment therefor by Landlord and Landlord
upon, or at any time after any such expiration or termination may, without
further notice, enter upon and re-enter the demised premises, possess and
repossess itself thereof by force, summary
38
proceedings, ejectment or otherwise and may dispossess Tenant and remove Tenant
and all other persons and property from the demised premises and may have, hold
and enjoy the demised premises and the building thereon and the right to receive
all rental income of and from the same.
At any time or from time to time after any such expiration or termination
pursuant to the preceding paragraphs hereof, or any other termination by summary
proceedings or otherwise, Landlord shall be free to relet the demised premises
or any part thereof in the name of the Landlord or otherwise for such terms or
terms which may be greater or less than the period which would otherwise be
constituting the balance of the term of this Lease, and all such conditions,
which may include concessions of free rent, as Landlord, in its uncontrolled
discretion, may determine, and may collect and receive the rents thereof.
Landlord shall, in no way, be responsible or liable for any failure to relet the
demised premises or any part thereof or any failure to collect any rent due upon
any such reletting.
No expiration or termination of this Lease, pursuant to any of the
paragraphs of this Article or any termination by summary proceedings or
otherwise, shall relieve Tenant of its liability and obligation under this Lease
and such liability and obligation shall survive any such expiration or
termination. In the event of any expiration or termination, whether or not the
demised premises or any part thereof have been relet, Tenant shall pay to the
Landlord the net rent and all other charges required to be paid by Tenant to the
time of such expiration or termination of this Lease, and thereafter Tenant,
until the end of what would have been the term of this Lease in the absence of
39
such expiration or termination, shall be liable to Landlord for, and
shall pay to Landlord, as and for liquidated and current damages for Tenant's
default the equivalent of the amount of the rents, additional rents, charges
and Impositions which would be payable under this Lease by Tenant, if this
Lease were still in effect, less the net proceeds of any reletting effected
pursuant to the provisions of a paragraph of this Article, after deducting all
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage and management commissions,
operating expenses, legal expenses, reasonable attorney's fees, alteration
costs and expenses of preparation of such reletting.
Tenant shall pay such current damages (herein called "deficiency") to
Landlord monthly on the 1st day of each month as the same would have been
payable under this Lease if this Lease were still in effect, and Landlord shall
be entitled to recover from Tenant any monthly deficiency as the same shall
arise. At any time after such expiration or termination, whether or not Landlord
shall have collected any monthly deficiency as aforesaid, Landlord as its
option, shall be entitled to recover from Tenant, and Tenant shall pay to
Landlord on demand, as and for liquidated and current final damages for Tenant's
default, (a) an amount equal to the present worth of the rents reserved under
this Lease from the date of such expiration and termination for what would be
the natural unexpired term of this Lease as if the same had remained in force or
(b), the fair market rental value of the demised premises for the same term.
Tenant for itself and anyone having any interest in the leasehold, hereby
expressly waives, so far as permitted by law, service of any notice of intention
to re-
40
enter provided for by statute or of the institution of legal proceedings to that
end. Tenant also waives any and all right of redemption or re-entry or
repossession or to restore the operation of this Lease in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge or in case of
re-entry or repossession by Landlord or in case of any expiration or termination
of this Lease. The terms "enter", "re-enter", "entry", or "re-entry", as used in
this Lease are not restricted to their technical legal meaning.
No failure by Landlord to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease or to fail to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of full or
partial rent during the continuation of such breach shall constitute a waiver of
any such breach or of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Lease to be performed or complied with by
either party and no breach thereof, shall be waived, altered or modified except
by a written instrument executed by the other party. No waiver or breach shall
affect or alter this Lease, but each and every covenant, agreement, term and
condition of this Lease shall continue in full force and effect with respect to
any now existing or subsequent breach thereof.
In the event of any breach or threatened breach by Tenant of any of the
covenants, agreements, terms or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right or remedy allowed at law or in equity or by statute or
otherwise, through re-entry, summary proceedings and other remedies which are
provided for in this Lease.
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Each right and remedy of Landlord provided in this Article XIV shall be
cumulative and shall be in addition to (a) every other right or remedy provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise, and (b) the exercise or beginning of any exercise by Landlord of
any one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or equity or by statute or otherwise.
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ARTICLE XV
ARBITRATION
In the event of any disagreement or dispute between the parties to this
Lease or their successors in interest, or in the event of the necessity of
appraisal or arbitration for any purpose or cause whatsoever, each party agrees
to appoint a fit, unbiased person within thirty (30) days after notice in
writing of the dispute and after notice of the necessity for arbitration and to
advise the other party of the choice. On the failure of either party to appoint
an arbitrator within ten (10) days after notification of the appointment by the
other party, the person appointed as arbitrator may appoint an arbitrator to
represent the party in default. The two arbitrators appointed in either manner
above provided shall then proceed to act and to appraise or to settle the
dispute or disagreement. In the event of their inability to reach a result, they
may agree to call in a third fit and responsible party and in the event of such
inability to agree on such a third arbitrator, the then Presiding Justice of the
Appellate Division of the Second Department shall appoint him and on the failure
of the then Presiding Justice to act, application may be made by either
arbitrator to any other Justice of the Appellate Division in the order or
seniority for the appointment of a third arbitrator. The Landlord and Tenant
agree each to pay one-half of the expense and reasonable fees of the
arbitrators, and to be bound by their decision.
In cases where the matter arbitrated consists of the appraisal or valuation
of the premises, the arbitrators shall each be real estate appraisers who shall
meet the qualifications set forth in Article XXIX(h) and (i) hereof.
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ARTICLE XVI
ASSIGNMENT; MORTGAGE; SUBLETTING
Tenant shall not sublet the premises nor any part thereof, nor assign,
mortgage or otherwise encumber or dispose of this Lease or any interest therein,
nor grant concessions or licenses for the occupancy of the premises, or any part
thereof, without Landlord's prior written consent in each of the foregoing
cases, except that Tenant shall have the right to sublet the demised premises or
assign this Lease if the sublessee or assignee is a corporation which is an
affiliate or wholly-owned subsidiary of Tenant, or which may, as a result of a
reorganization, merger or consolidation, succeed to the entire business carried
on by Tenant at such time, provided the following conditions are complied with:
(a) The assignment and/or subletting must be, respectively, of all of
Tenant's leasehold interest and of the entire premises and, in the case of an
assignment, shall also transfer to the assignee all of the Tenant's right in,
and interest under, this Lease including the security, if any, deposited
hereunder.
(b) At the time of such assignment and/or subletting, this Lease must be in
full force and effect without any breach or default thereunder on the part of
the Tenant.
(c) The assignee or sublessee shall assume, by written recordable
instrument, in form and consent satisfactory to Landlord, the due performance of
all of Tenant's obligations under this Lease, including any accrued obligations,
at the time of the assignment or subletting.
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(d) A copy of the assignment or sublease and the original assumption
agreement (both in form and content satisfactory to the Landlord) fully executed
and acknowledged by the assignee and/or sublessee together with a certified copy
of a properly executed corporate resolution authorizing such assumption
agreement, shall be mailed to the Landlord within ten (10) days from the
effective date of such assignment or subletting.
(e) Such assignment and/or subletting shall be upon and subject to all the
provisions, terms, covenants and conditions of this Lease, and the Tenant [(and
any assignee(s) and sublessee(s)] shall continue to be and remain liable
thereunder.
Notwithstanding anything contained in this Lease to the contrary, and
notwithstanding any consent by Landlord to any sublease of the demised premises,
no subtenant shall assign its sublease nor further sublease the premises without
Landlord's prior written consent in each of such cases.
Tenant's failure to comply with all of the provisions and conditions of
this Article XVI and all of the subsections hereof shall, at Landlord's option,
render any purported assignment or subletting null and void and of no force and
effect, and constitute a breach of this Lease by Tenant.
If there shall occur any changes in the ownership of and/or power to vote
the majority of the outstanding capital stock of Tenant without the prior
written consent of Landlord, then Landlord shall have the option to terminate
this Lease upon at least thirty (30) days' notice to Tenant.
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ARTICLE XVII
MORTGAGE OF THE FEE
The Tenant accepts this Lease subject and subordinate to any institutional
mortgage or mortgages which may at any time hereafter be or become a lien or
liens upon the land, building and improvements constituting the demised
premises; provided, however, that any such mortgage shall contain a provision
requiring the mortgagee to notify Tenant, as well as the Landlord, of any
defaults thereunder, and permitting the Tenant to make payment of such mortgage
payments on behalf of the Landlord mortgagor. Any payments so made by the Tenant
shall be deducted from the rents set forth herein. The Tenant shall execute, at
any time hereafter, on demand, any instruments, releases or other documents that
may be required by any mortgagee or mortgagor for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgagee or mortgages, and the
failure of the Tenant to execute any such instruments, releases or documents,
shall constitute a default hereunder. Notwithstanding anything to the contrary
contained in this Lease, including, without limitation, the provisions of this
Article XVII, this Lease shall be subject and subordinate to the lien of the
Mortgage, dated as of February 9, 1989, between Landlord and European American
Bank and any and all rights, including rights of notice, in favor of European
American Bank, contained in such Mortgage. Landlord and Tenant each represent
and warrant to European American Bank that Tenant is the successor in interest
to Phase Industries, Inc., the Tenant originally named in this Lease.
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ARTICLE XVIII
QUIET ENJOYMENT
The Landlord covenants and agrees that the Tenant, upon paying the rents,
additional rents, and all other charges and impositions herein provided for and
observing and keeping the covenants, agreements and conditions of this Lease on
its part to be kept, shall lawfully and quietly hold, occupy and enjoy said
demise premises without hindrance or molestation of the Landlord, during the
term of this Lease, or any person or persons claiming under the Landlord.
ARTICLE XIX
ESTOPPEL CERTIFICATE
The Tenant agrees at any time and from time to time upon not less than
twenty (20) days prior written request by the Landlord to execute, acknowledge
and deliver to the Landlord and the Landlord agrees at any time and from time to
time upon not less than twenty (20) days prior written request by the Tenant, to
execute, acknowledge and deliver to the Tenant, a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications that the same is in full force and effect as
modified and stating the modifications) and the dates to which rents, additional
rents and other charges and impositions have been paid in advance, if any, and
whether or not there is any existing default by the Tenant or notice of default
served by the Landlord, it being intended that any such statement delivered
pursuant to this Article may be relied upon by any prospective purchaser of the
fee or leasehold or
47
mortgagee or assignee of any mortgage upon the fee of the demised premises or
any prospective assignee of the leasehold estate.
ARTICLE XX
NOTICES
Any notice or demand which, under the terms of this Lease or under any
statute must or may be given or made by the parties hereto, shall be in writing,
and may be given or made by (a) mailing the same by registered mail return
receipt requested, (b) personal delivery of the same against a signed receipt or
(c) sending the same by nationally recognized overnight courier service,
addressed to the other party at the address hereinabove mentioned. Either party,
however, may designate in writing such new or other address to which such notice
or demand shall thereafter be so given, made or mailed. Any notice given
hereunder by mail shall be deemed delivered when deposited in a United States
general or branch post office, enclosed in a registered, prepaid wrapper
addressed as hereinbefore provided; any notice given by personal delivery shall
be deemed given upon receipt; and any notice given by overnight courier service
shall be deemed given when deposited with the courier.
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ARTICLE XXI
SURRENDER OF PREMISES
On the last day of the term demised, or on the sooner termination thereof,
the Tenant shall peaceably and quietly leave, surrender and yield up unto the
Landlord the demised premises broom-clean, in good order and repair, taking into
consideration the age of the building at expiration of the term hereof, and
except for reasonable wear and tear between the last necessary repair,
replacement or restoration made by the Tenant pursuant to its obligations
hereunder, together with all alterations, additions and improvements which may
have been made upon the premises, except moveable furniture or moveable trade
fixtures put in at the expense of the Tenant. If the last day of the term of
this Lease falls on Saturday or Sunday, this Lease shall expire on the business
day immediately preceding it. The Tenant, on or before said date, shall remove
property from the demised premises, and all property not so removed shall be
deemed abandoned by the Tenant. If said premises be not surrendered at the end
of the term, the Tenant shall indemnify to Landlord against loss or liability
resulting from delay by the Tenant in so surrendering the premises, including,
without limitation, any claims made by any succeeding Tenant founded on such
delay.
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ARTICLE XXII
RE-ENTRY
In the event that this Lease shall be terminated as hereinbefore provided,
or by summary proceedings or otherwise, or in the event that the demised
premises shall be abandoned by the Tenant, or become vacant during the said
term, the Landlord, or its agents, servants or representatives, may, immediately
or any time thereafter, re-enter and resume possession of said premises, and
remove all persons and property therefrom, either by summary dispossession
proceedings or by a suitable action or proceeding in law, or by force or
otherwise, without being liable for any damages therefrom. No re-entry by the
Landlord shall be deemed an acceptance of a surrender of this Lease.
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ARTICLE XXIII
CUMULATIVE REMEDIES - NO WAIVER - NO ORAL CHANGE
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The specified remedies to which the Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which the Landlord may be lawfully entitled in
case of any breach or threatened breach by the Tenant of any provision of this
Lease. The receipt of rent by the Landlord, with knowledge of any breach of this
Lease by the Tenant or of any default on the part of the Tenant in the
observance or performance of any of the conditions or covenants of this Lease,
shall not be deemed to be a waiver of any provision of this Lease. If the Tenant
should make any payment of any amount less than that due hereunder, the Landlord
without notice may accept the same as a payment on account; the Landlord shall
not be bound by any notation on any check involving such payment nor any
statement in any accompanying letter. No failure on the part of the Landlord to
enforce any covenant or provision herein contained, nor any waiver of any right
thereunder by the Landlord, unless in writing, shall discharge or invalidate
such covenant or provision or affect the right of the Landlord to enforce the
same in the event of any subsequent breach or default. The receipt by the
Landlord of any rent or other sum of money or other consideration hereunder paid
by the Tenant after the termination, in any manner, of the term herein demised,
or after the giving by the Landlord of any notice hereunder to effect such
termination, shall not reinstate, continue or extend the term herein demised, or
destroy, or in any manner impair the efficacy of any such notice of termination
as may have been given hereunder by the Landlord to the tenant prior to the
receipt of any such sum of money or other consideration, unless so agreed to in
writing and signed by the Landlord. Neither
52
acceptance of the keys nor any other act or thing done by the Landlord or any
agent or employee during the term herein demised shall be deemed to be an
acceptance of a surrender of said premises, excepting only an agreement in
writing signed by the Landlord accepting or agreeing to accept such a surrender.
Any right herein granted to the Landlord to terminate this Lease shall apply to
any extension of the term herein demised, and any renewal or renewals thereof
and the exercise of any such right during the term herein demised, extended or
renewed shall terminate any extension or renewal of the term herein demised and
any right on the part of the Tenant thereto. No act or conduct of any nature or
character on the part of the Landlord or its agents, servants or employees other
than by an agreement in writing signed by the Landlord shall be construed as a
waiver of the provisions of this Article XXIII irrespective of any circumstances
existing at the time of such act or conduct.
This instrument contains all the agreements and conditions made between the
parties hereto and may not be modified, changed or terminated in whole or in
part orally or in any other manner than by an agreement in writing, signed by
all the parties hereto or their respective successors in interest.
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ARTICLE XXIV
EFFECT OF SALE
The term "Landlord", as used in this Lease, means only the owner for the
time being of the land, building and improvements containing the demised
premises, so that in the event of any sale of said land, building and
improvements the Landlord shall be and hereby is entirely freed and relieved of
all covenants and obligations of the Landlord hereunder, and it shall be deemed
and construed without further agreement between the parties or between the
parties and the purchaser at any such sale, that the purchaser has assumed and
agreed to carry out any and all covenants and obligations of the Landlord
hereunder.
ARTICLE XXV
CAPTIONS
The Article captions of this Lease are for convenience and reference only
and in no way define, limit or describe the scope of interest of this Lease nor
in any way affect this Lease.
ARTICLE XXVI
COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES
It is understood and agreed that all the covenants, agreements, terms,
conditions, provisions and undertakings in this Lease contained, shall extend to
and be binding upon the heirs, executors, administrators, successors and assigns
of the respective parties hereto, the same as if they were in every case named
and expressed, and wherever in this Lease reference is made to either of the
parties
54
hereto, it shall be held to include and apply also (whenever and wherever
applicable) to the heirs, executors, administrators, successors and assigns of
such party.
ARTICLE XXVII
EXECUTION OF SHORT FORM LEASE
The parties will at any time at the request of either one promptly execute
duplicate originals of an instrument, in recordable form, which will constitute
a short form of this Lease, setting forth a description of the premises, the
terms of this Lease and any other portions thereof, excepting the rental
provisions, as either party may request. If the precise date of commencement and
termination of the term of this Lease are not known at the time of execution of
said short form of lease, the parties will, as soon as they are known and at the
request of either party, execute a supplemental instrument, in recordable form,
setting forth the exact date of commencement and termination of the term.
ARTICLE XXVIII
RENEWAL OPTIONS
1. Tenant shall have the options to renew or extend the term of this Lease
("Renewal Options") for four five-year renewal or extended terms (each a
"Renewal Term" and, collectively, the "Renewal Terms"), the first to commence on
January 1, 2002 and to end on December 31, 2006 (the "First Renewal Term"); the
second to commence on January 1, 2007 and to end on December 31, 2011 (the
"Second Renewal Term"); the third to commence on January 1, 2012 and to end on
December 31, 2016 (the "Third Renewal Term") and the fourth to commence on
January 1, 2017
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and to end on December 31, 2021 (the "Fourth Renewal Term"). Each Renewal Term
shall be upon the same terms, covenants and conditions as set forth herein for
the term expiring on December 31, 2001 except that:
(a) any terms, covenants or conditions hereof that are expressly or by
their nature inapplicable to the Renewal Terms shall not apply during the
Renewal Terms;
(b) the annual net rental payable by Tenant during each Renewal Term
(hereinafter referred to as the "Renewal Rent") shall be an amount equal to the
greater of (i) the amount of annual net rental payable by the Tenant during the
calendar year 2001 if the first Renewal Term commences, the calendar year 2006
if the Second Renewal Term commences, the calendar year 2011 if the Third
Renewal Term commences and the calendar year 2016 if the Fourth Renewal Term
commences, and (ii) the fair market rental value of the demised premises to be
determined as provided in Section 3 hereof and to be calculated as of the
commencement date of each of the applicable Renewal Terms on the basis of a new
five year letting of the demised premises.
2. Each of the Renewal Options shall be exercised by Tenant's giving notice
of the exercise thereof no later than June 30, 2001 with respect to the Renewal
Option for the first Renewal Term, June 30, 2006 with respect to the Renewal
Option for the Second Renewal Term, June 30, 2011 with respect to the Renewal
Option for the Third Renewal Term and June 30, 2016 with respect to the Renewal
Option for the Fourth Renewal Term, time being of the essence; provided,
however, that Tenant shall not be entitled to exercise the Renewal Option for
any Renewal Term unless (a) at the time of
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the exercise thereof and on the day immediately preceding the beginning of such
Renewal Term this Lease shall be in full force and effect without default beyond
applicable grace periods on the part of Tenant and (b) with respect to the
Second Renewal Term, Third Renewal Term and Fourth Renewal Term Tenant shall
have exercised its Renewal Option for the immediately preceding Renewal Term.
3. In the event that Tenant shall exercise the applicable Renewal Option as
provided in Section 2 hereof, the Renewal Rent shall be determined jointly by
Landlord and Tenant, and such determination shall be confirmed in a writing
(hereinafter referred to as a "Rental Agreement") to be executed by Landlord and
Tenant not later than the day (hereinafter referred to as the "Determination
Date") which shall be ninety (90) days next preceding the commencement of the
applicable Renewal Term. In the event that Landlord and Tenant shall have failed
to join in executing a Rental Agreement on or before the Determination Date
because of their failure to agree upon the Renewal Rent, the Renewal Rent shall
then be determined by arbitration as follows:
(a) Landlord and Tenant shall each appoint an arbitrator by written notice
given to the other party hereto not later than thirty (30) days after the
Determination Date. If either Landlord or Tenant shall have failed to appoint an
arbitrator within such period of time and thereafter shall have failed to do so
by written notice given within a period of five (5) days after notice by the
other party requesting the appointment of such arbitrator, then such arbitrator
shall be appointed by the American Arbitration Association or its successor (by
the branch office of which is located closest to the demised premises), upon
request of either Landlord or Tenant, as the case may be;
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(b) The two (2) arbitrators appointed as above provided shall appoint a
third (3rd) arbitrator by written notice given to both Landlord and Tenant, and,
if they fail to do so by written notice given within thirty (30) days after
their appointment, such third (3rd) arbitrator shall be appointed as above
provided for the appointment of an arbitrator in the event either party fails to
do so;
(c) All of such arbitrators shall be real estate appraisers having not less
than ten (10) years experience in appraising the fair market rental value of
real estate similar in kind and location to the demised premises and whose
appraisals are acceptable to savings banks or life insurance companies doing
business in the State of New York;
(d) Each arbitrator shall certify to Landlord and Tenant whether or not, in
the previous three (3) years, the arbitrator or his or her company have (x) been
retained by Landlord or Tenant and/or (y) been involved in an adversarial
arbitration or litigation proceeding with either Landlord or Tenant. Landlord
and Tenant reserve the right to reject any arbitrator for good cause within ten
(10) business days after receipt of the certification provided above;
(e) The three arbitrators, selected as aforesaid, forthwith shall convene
and render their decision in accordance with the then applicable rules of the
American Arbitration Association or its successor, which decision shall be
strictly limited to a determination of the Renewal Rent as the case may be,
within twenty (20) days after the appointment of the third (3rd) arbitrator. The
decision of such arbitrators shall be in writing and the vote of the majority of
them shall be the decision of all and, insofar as the same is in compliance with
the provisions and conditions of this Section 3, shall be
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binding upon Landlord and Tenant. Duplicate original counterparts of such
decision shall be sent forthwith by the arbitrators by certified mail, return
receipt requested, to both Landlord and Tenant. The arbitrators, in arriving at
their decision, shall be entitled to consider all testimony and documentary
evidence that may be presented at any hearing, as well as facts and data which
the arbitrators may discover by investigation and inquiry outside such hearings.
If, for any reason whatsoever, a written decision of the arbitrators shall not
be rendered within thirty (30) days after the appointment of the third (3rd)
arbitrator, then, at any time thereafter before such decision shall have been
rendered, either party may apply to the Supreme Court of the State of New York
or to any other court having jurisdiction and exercising the functions similar
to those now exercised by such court, by action, proceeding or otherwise (but
not by a new arbitration proceeding) as may be proper, to determine the question
in dispute consistently with the provisions of this Lease. The cost and expense
of such arbitration, action, proceeding, or otherwise shall be borne equally by
Landlord and Tenant.
4. In the event that Tenant shall exercise a Renewal Option as provided in
Section 2 hereof and the Renewal Rent shall not be finally determined pursuant
to the terms of Section 3 hereof on or before the applicable commencement date
of any Renewal Term, then:
(a) The annual net rental payable by Tenant during the Renewal Term until
the Renewal Rent shall be so finally determined shall, subject to adjustment as
59
provided in Article III hereof, be equal to the annual net rental payable by
Tenant during the calendar year immediately preceding the applicable Renewal
Term; and
(b) In the event that the Renewal Rent as finally determined pursuant to
the terms of Section 3 hereof, shall be greater than the such calendar year's
annual net rent (i) the annual net rental payable by Tenant for the balance of
the applicable Renewal Term shall be and become the Renewal Rent as finally
determined, and (ii) Tenant shall forthwith pay to Landlord an amount equal to
the difference between (x) the sum of the actual rental payments paid to
Landlord during the Renewal Term before such final determination and (y) the sum
of the rental payments that Tenant would have paid to Landlord if the Renewal
Rent were finally determined prior to the commencement date of the applicable
Renewal Term.
ARTICLE XXIX
OPTION TO PURCHASE
(a) Tenant shall have the one-time option to purchase the demised premises
for its fair market value (the "Purchase Option") provided that:
(i) At the time of the exercise thereof and on the date of such
purchase (the "Closing Date") this Lease shall be in full force and effect
without default beyond applicable grace periods on the part of Tenant;
(ii) Tenant shall give Landlord written notice (the "Option Notice")
of its election to exercise the Purchase Option not later than one (1) year
prior to the expiration of the term of this Lease or any then operative
Renewal Term, time being of the essence; and
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(iii) Tenant shall, as of the date of the Option Notice and the
Closing Date, be in actual occupancy of an amount of space equal to at
least 90% of the demised premises.
(b) The purchase price for the demised premises payable by Tenant to
Landlord shall be either:
(i) an amount equal to the "Fair Market Value" (as defined and
determined in this Article XXIX), which determination shall be as of the
date of the Option Notice; or
(ii) the price determined and submitted with the Option Notice (the
"Price Determination Notice"). If Landlord shall dispute Tenant's
determination of such price and shall be unable to resolve such dispute
with Tenant, then Landlord shall initiate the arbitration process provided
for herein by designating its arbitrator in a notice (the "Landlord's
Arbitration Notice") to Tenant (which notice must specify the name, address
and telephone number of the person designated to act as an arbitrator on
its behalf) given to Tenant no later than thirty (30) days after Tenant
shall have delivered the Price Determination Notice. The determination of
the Fair Market Value of the demised premises shall then be made in
accordance with the provisions of subsection (c) hereof. If Landlord fails
to deliver the Arbitration Notice as provided above, then Tenant's
determination of the purchase price in the Price Determination Notice shall
be final and conclusive.
(c) "Fair Market Value" shall mean the fair market value of the demised
premises based upon the following factors:
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(i) that Landlord and Tenant are typically motivated;
(ii) that Landlord and Tenant are well informed and well advised and
each is acting in what it considers its own best interest;
(iii) that a reasonable time under then existing market conditions is
allowed for exposure of the demised premises on the open
market;
(iv) that in the event the demised premises or any portion thereof
have been destroyed or damaged by fire or other casualty, such
damage has been fully restored;
(v) that Tenant will incur no moving or storage costs;
(vi) that Tenant will incur no holdover or termination charges with
respect to any existing leases;
(vii) that market rents then being charged for comparable space in
other similar office buildings are being charged at the demised
premises;
(viii) that the demised premises is considered free and clear of this
Lease;
(ix) that the demised premises is being purchased in "as is"
condition and Landlord is not obligated to perform any work or
make any improvements of any kind whatsoever; and
(x) that the demised premises is being sold "subject to" those
matters of record existing on the date hereof, other than
mortgages, and
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those matters of record created by or resulting from the acts
of Tenant.
(d) Within thirty (30) days after Tenant's receipt of Landlord's
Arbitration Notice, Tenant shall give notice to Landlord specifying the name,
address and telephone number of the person designated to act as an arbitrator on
Tenant's behalf ("Tenant's Arbitration Notice"). If Tenant fails to deliver the
Tenant's Arbitration Notice within the time above specified, then Landlord shall
provide an additional notice to Tenant requiring Tenant's appointment of an
arbitrator within fifteen (15) days after Tenant's receipt thereof. If Tenant
fails to deliver the Tenant's Arbitration Notice within such fifteen (15) day
period, then Tenant's arbitrator shall be appointed in the same manner as if
both arbitrators cannot agree on the appointment of a third arbitrator as set
forth in subsection (f) below.
(e) If Tenant designates an arbitrator within the time period specified
above, the two arbitrators so chosen shall meet within thirty (30) days after
Landlord's arbitrator is appointed, and shall exchange sealed envelopes each
containing such arbitrator's written determination of the Fair Market Value.
Neither arbitrator shall be bound by nor shall either arbitrator make any
reference to the determination of the Purchase Price which was previously
furnished by Tenant to Landlord. The Fair Market Value specified by Landlord's
arbitrator shall herein be called "Landlord's Submitted Value" and the Fair
Market Rent specified by Tenant's arbitrator shall herein be called "Tenant's
Submitted Value". Copies of such written determinations shall promptly be sent
to both Landlord and Tenant. Any failure of either such arbitrator to exchange
such
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determinations shall be deemed acceptance of the other party's arbitrator's
determination as the Fair Market Value, if, and only if, such failure persists
for ten (10) days after notice to the party for whom such arbitrator is acting.
(f) If the higher determination of Fair Market Value for the demised
premises is not more than 105% of the lower determination of such Fair Market
Value, then the Fair Market Value for the demised premises shall be deemed to be
the average of the two determinations. If, however, the higher determination is
more than 105% of the lower determination, then within ten (10) days after the
date the arbitrators submitted their respective fair market rent determinations,
the two arbitrators shall together appoint a third arbitrator. In the event of
their being unable to agree upon such appointment within thirty (30) days after
the submission of the respective arbitrators' determinations to Landlord and
Tenant, the third arbitrator shall be selected by the parties themselves within
a further period of fifteen (15) days. If the parties do not so agree, then
either party, on behalf of both and on notice to the other, may request such
appointment of an arbitrator meeting the requirements set forth in subsection
(h) below by the branch office of the American Arbitration Association which is
located closest to the demised premises or, if it does not then exist, such
successor organization as may then exist. Such third arbitrator shall, within
thirty (30) days after his appointment, make his own determination of the Fair
Market Value and send copies of this determination promptly to both Landlord and
Tenant and their arbitrators. Whichever of Landlord's Submitted Value or
Tenant's Submitted Value shall be closer to the determination of such third
arbitrator shall be averaged with the amount of the
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determination of the third arbitrator and the result will conclusively be
deemed to be the Fair Market Value.
(g) Each party shall pay the fees and expenses of the arbitrator appointed
by or for such party, and the fees and expenses of the third arbitrator and all
other expenses (not including the attorneys' fees, witness fees and similar
expenses of the parties, which shall be borne separately by each of the parties)
of the arbitration shall be borne by the parties equally.
(h) all of such arbitrators shall be real estate appraisers having not less
than ten (10) years experience in appraising the fair market value of real
estate similar in kind and location to the demised premises and whose appraisals
are acceptable to savings banks or life insurance companies doing business in
the State of New York.
(i) Each arbitrator shall certify to Landlord and Tenant whether or not, in
the previous three (3) years, the arbitrator or his or her company have (x) been
retained by Landlord or Tenant and/or (y) been involved in an adversarial
arbitration or litigation proceeding with either Landlord or Tenant. Landlord
and Tenant reserve the right to reject any arbitrator for good cause within ten
(10) business days after receipt of the certification provided above.
(j) The arbitration shall be conducted, to the extent consistent with this
Article XXIX, in accordance with the then prevailing rules of the American
Arbitration Association (other than the American Arbitration Association rules
relating to the appointment of arbitrators), or such other procedures as are
agreed to by the arbitrators or the parties hereto. In rendering such decision
and award, the arbitrators
65
shall not add to, subtract from or otherwise modify the provisions of this
Lease. Judgment may be had on the decision and award of the arbitrator(s) so
rendered in any court of competent jurisdiction.
(k) In the event the arbitration process is continuing at the end of the
term of this Lease or any Renewal Term, Tenant may remain in possession until
the Closing Date at the same rental being charged by Landlord in the last month
of the term of this Lease or any Renewal Term as applicable.
(l) Within thirty (30) days after the determination of the purchase price
for the demised premises, Landlord and Tenant shall diligently and in good faith
negotiate and execute a formal contract of sale for the demised premises. If
Landlord and Tenant do not succeed in so negotiating and executing such formal
contract of sale within such thirty (30) day period, the Purchase Option shall
then and thereupon be extinguished. Time is and shall be of the essence with
respect to all of the time periods set forth in this Article XXIX.
(m) Landlord shall not be deemed to have failed to negotiate such formal
contract of sale in good faith by requiring, among other things, (a) that the
purchase price be paid by wire transfer or good certified or cashier's check,
(b) that Tenant take title to the demised premises in "as is" condition, and (c)
that Tenant deposit in escrow with Landlord's counsel a down payment equal to
ten (10%) percent of the sales price forfeitable as liquidated damages in the
event of Tenant's default under such contract of sale.
66
(n) The Closing Date shall occur on a business date fixed by Tenant which
is prior to the 45th day following the determination of the purchase price for
the demised premises.
(o) Neither the Purchase Option nor a memorandum thereof shall be recorded
against the demised premises.
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ARTICLE XXX
RIGHT OF FIRST OFFER
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(a) Provided (1) that this Lease shall then be in full force and effect
without default beyond applicable grace periods on the part of Tenant, (2) that
Tenant has not exercised the Purchase Option or, if Tenant has exercised the
Purchase Option, has not, acting diligently and in good faith, executed a formal
contract of sale for the demised premises as provided in subsection (l) of
Article XXIX hereof and (3) that the demised premises are for sale, Landlord
shall first give to Tenant notice of Landlord's willingness to sell the demised
premises to Tenant for the sales price set forth in such notice (the "Price
Notice"). Such sales price shall be the Fair Market Value of the demised
premises as of the date of the Price Notice determined, absent agreement thereon
by Landlord and Tenant, in accordance with the arbitration procedures set forth
in Article XXIX. Tenant shall have 15 days after such agreement on or
determination of the sales price to agree to purchase the demised premises for
such price or to reject the Price Notice. If Tenant does not notify Landlord in
writing of Tenant's agreement to purchase the demised premises for such sales
price within such 15-day period, the Price Notice shall be deemed rejected. If
Tenant rejects or is deemed to have rejected the Price Notice, (1) Landlord
shall be free to sell the demised premises to any other person or entity at any
time for such Fair Market Value or for any higher price and on such commercially
comparable terms as may have been set forth in the Price Notice, and (2) the
Purchase Option shall be deemed to have been cancelled and revoked (subject to
reinstatement if the demised premises are not so sold within 180 days of the
rejection or deemed rejection of the Price Notice). If Landlord is offered a
price for the demised premises lower than such Fair Market Value which Landlord
is willing to
69
accept, Landlord shall not accept such offer unless Landlord again offers the
demised premises to Tenant for such lower price by Price Notice as provided
herein. Tenant shall have 15 days after receipt of such Price Notice to agree to
purchase the demised premises for such lower price or to reject such Price
Notice. If Tenant does not notify Landlord in writing of Tenant's agreement to
purchase the demised premises for such lower price within such 15-day period,
such Price Notice shall be deemed rejected. If Tenant rejects or is deemed to
have rejected such Price Notice, (1) Landlord shall thereafter be free to sell
the demised premises to any other person or entity for such price (or any higher
price) and on any terms and (2) the Purchase Option shall be deemed to have been
cancelled and revoked (subject to reinstatement of the demised premises are not
sold within 180 days of such rejection or deemed rejection of the Price Notice).
In the event Tenant agrees to purchase the demised premises as provided herein,
Landlord and Tenant shall diligently and in good faith negotiate and execute a
formal contract of sale for the demised premises within thirty (30) business
days after such agreement is given to Tenant. If Landlord and Tenant do not
succeed in so negotiating and executing such formal contract of sale within such
thirty (30) day period, this limited right of first offer shall then and
thereupon be extinguished. Time is and shall be of the essence with respect to
all of the time periods set forth in this subsection (a). This subsection (a)
shall apply successively to each instance in which Landlord is offered and/or is
willing to accept a price for the demised premises lower than the price set
forth in the previous Price Notice.
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(b) Landlord shall not be deemed to have failed to negotiate such formal
contract of sale in good faith by requiring, among other things, (a) that the
purchase price be paid by wire transfer or good certified or cashier's check,
(b) that Tenant take title to the demised premises in "as is" condition and
"subject to" those matters of record existing on the date hereof other than
mortgages, and those maters of record created by or resulting from the actions
of Tenant, and (c) that Tenant deposit in escrow with Landlord's counsel a down
payment equal to ten (10%) percent of the sales price forfeitable as liquidated
damages in the event of Tenant's default under such contract of sale.
(c) The closing of the purchase of the demised premises by Tenant shall
occur on a business date fixed by Tenant which is prior to the 90th day
following the giving by Landlord of the operative Price Notice.
(d) Neither this limited right of first offer nor a memorandum hereof shall
be recorded against the demised premises.
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IN WITNESS WHEREOF, the Landlord has duly executed this Lease and the
Tenant has caused this Lease to be executed by its authorized officers and
caused its corporate seal to be hereto affixed this 25th day of September 1998.
Tenant:
AMERICAN TECHNICAL CERAMICS
CORP.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
its: Vice President - Administration
Landlord:
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx d/b/a Stepar Leasing
Company
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EXHIBIT A
REAL PROPERTY DESCRIPTION
The real property known as 00 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 00000, and
all buildings and improvements thereon.
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