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Exhibit 10.9
THIS AGREEMENT between EMPIRE REALTY COMPANY, a partnership with its
principal place of business at Binghamton, New York (P.O. Box 2361), as
Landlord, and X.X. XXXXXXX MANUFACTURING CO., INC., a New York corporation with
a place of business at 00-00 Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxx Xxxx
00000, as Tenant.
W I T N E S S E T H:
The Landlord hereby leases to the Tenant the following premises: Land,
buildings and parking lot located at 33, 35-37, 39 and 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxx 00000, for the term of twenty (20) years, to commence the
1st day of January, 1989 to end on the 31st day of December, 2008, to be used
and occupied only for the operation of a manufacturing business, including
offices and storage space, upon the conditions and covenants following:
1st. That the Tenant shall pay annual rent as follow upon the conditions
and covenants following: $88,486.00 for the first calendar year; thereafter, the
annual rent for each and every calendar year will increase by five percent (5%)
over the previous year's annual rent, said rent to be paid in equal monthly
payments in advance on the 1st day of each and every month during the term
aforesaid, as follows: One-twelfth (1/12) of the annual rent (as determined
above) for each calendar year.
2nd. That the Tenant shall take good care of the premises and shall, at
the Tenant's own cost and expense make all repairs and at the end or other
expiration of the term, shall deliver up the demised premises in good order or
condition, damages by the elements excepted, as well as reasonable use and wear
and tear.
3rd. That the Tenant shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State
and Local Governments and of any and all their Departments and Bureaus
applicable to said premises, for the correction, prevention, and abatement of
nuisances or other grievances, in, upon, or connected with said premises during
said term; and shall also promptly comply with and execute all rules, orders and
regulations of the New York Board of Fire Underwriters, or any other similar
body, at the Tenant's own cost and expense.
4th. That the Tenant, successors, heirs, executors or administrators shall
not assign this agreement, or underlet or underlease the premises, or any part
thereof, or make any alterations on the premises, without the Landlord's consent
in writing (which consent shall not be unreasonably withheld) or occupy, or
permit or suffer the same to be occupied for any business or purpose deemed
disreputable or extra-hazardous on account of fire, under the penalty of damages
and forfeiture, and in the event of a breach thereof, the term herein shall
immediately cease and determine at the option of the Landlord as if it were the
expiration of the original term.
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5th. Tenant must give Landlord prompt notice of fire, accident, damage or
dangerous or defective condition. Landlord need only repair the damaged
structural parts of the Premises. Landlord is not required to repair or replace
any equipment, fixtures, furnishings or decorations unless originally installed
by Landlord. Landlord is not responsible for delays due to settling insurance
claims, obtaining estimates, labor and supply problems or any other cause not
fully under Landlord's control.
If the fire or other casualty is caused by an act of neglect of Tenant,
Tenant's employees or invitees, or at the time of the fire or casualty Tenant is
in default in any term of this Lease, then all repairs will be made at Tenant's
expense and Tenant must pay the full rent with no adjustment.
The cost of the repairs will be added rent.
Landlord has the right to demolish or rebuild the Building if there is
substantial damage by fire or other casualty. Landlord may cancel this Lease
within 30 days after the substantial fire or casualty by giving Tenant notice of
Landlord's intention to demolish or rebuild. The Lease will end 30 days after
Landlord's cancellation notice to Tenant. Tenant must deliver the Premises to
Landlord on or before the cancellation date in the notice and pay all rent due
to the date of the fire or casualty. If the Lease is canceled Landlord is not
required to repair the Premises or Building. The cancellation does not release
Tenant of liability in connection with the fire or casualty. This Section is
intended to replace the terms of New York Real Property Law Section 227.
6th. The said Tenant agrees that the said Landlord and the Landlord's
agents and other representatives shall have the right to enter into and upon
said premises, or any part thereof, at all reasonable hours for the purpose of
examining the same, or making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
7th. The Tenant also agrees to permit the Landlord or the Landlord's
agents to show the premises to persons wishing to hire or purchase the same; and
the Tenant further agrees that on and after the sixth month, next preceding the
expiration of the term hereby granted, the Landlord or the Landlord's agents
shall have the right to place notices on the front of said premises, or any part
thereof, offering the premises "To Let" or "For Sale", and the Tenant hereby
agrees to permit the same to remain thereon without hindrance or molestation.
8th. That if the said premises, or any part thereof shall be deserted or
become vacant during said term, or if any default be made in the payment of the
said rent or any part thereof, or it any default be made in the performance of
any of the covenants herein contained, the Landlord or representatives may
re-enter the said premises by force, summary proceedings or otherwise, and
remove all persons therefrom, without being liable to prosecution therefor, and
the Tenant hereby expressly waives the service of any notice in writing of
intention to re-enter, and the Tenant shall pay at the same time as the rent
becomes payable under the terms hereof a sum equivalent to the rent reserved
herein, and the Landlord may rent the premises on behalf of the Tenant,
reserving the right to rent the premises for a longer period of time than fixed
in the original lease without releasing the original Tenant from any liability,
applying any moneys collected, first to the expense
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of resuming or obtaining possession, second to restoring the premises to a
rentable condition, and then to the payment of the rent and all other charges
due and to grow due to the Landlord, any surplus to be paid to the Tenant, who
shall remain liable for any deficiency.
9th. Landlord may replace, at the expense of Tenant, any and all broken
glass in and about the demised premises. Landlord may insure, and keep insured,
all plate glass in the demised premises for and in the name of Landlord. Bills,
for the premiums therefor shall be rendered by Landlord to Tenant at such times
as Landlord may elect, and shall be due from, and payable by Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid as,
additional rental. Damage and injury to the said premises, caused by the
carelessness, negligence or improper conduct on the part of the said Tenant or
the Tenant's agents or employees shall be repaired as speedily as possible by
the Tenant at the Tenant's own cost and expense.
10th. That the Tenant shall neither encumber nor obstruct the sidewalk in
front of, entrance to, or halls and stairs of said premises, nor allow the same
to be obstructed or encumbered in any manner.
11th. The Tenant shall neither place, or cause or allow to be placed, any
sign or signs of any kind whatsoever at, in, or about the entrance to said
premises or any other part of same except in or at such place or places as may
be indicated by the Landlord and consented to by the Landlord in writing. And in
case the Landlord or the Landlord's representatives shall deem it necessary to
remove any such sign or signs in order to paint the said premises or the
building wherein same is situated at the Tenant's cost and expense or make any
other repairs, alterations or improvements in or upon said premises or building
or any part thereof at the Tenant's cost and expense, the Landlord shall have
the right to do so, providing the same be removed and replaced at the Landlord's
expense, whenever the said repairs, alterations or improvements shall be
completed. Said consent shall not be unreasonably withheld by the Landlord.
12th. That the Landlord is exempt from all liability for any damage or
injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of said
building or from any damage or injury resulting or arising from any other cause
or happening whatsoever unless said damage or injury be caused by or due to the
negligence of the Landlord.
13th. That if default be made in any of the covenants herein contained,
then it shall be lawful for the said Landlord to re-enter the said premises, and
the same to have again, re-possess and enjoy. The said Tenant hereby expressly
waives the service of any notice in writing of intention to re-enter.
14th. That this instrument shall not be a lien against said premises in
respect to any mortgages that are now on or that hereafter may be placed against
said premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease,
irrespective of the date of recording and the Tenant agrees to
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execute without cost, any such instrument which may be deemed necessary or
desirable to further effect the subordination of this lease to any such mortgage
or mortgages, and a refusal to execute such instrument shall entitle the
Landlord, or the Landlord's assigns and legal representatives to the option of
cancelling this lease without incurring any expense or damage and the term
hereby granted is expressly limited accordingly.
15th. It is expressly understood and agreed that in case the demised
premises shall be deserted or vacated, or if default be made in the payment of
the rent or any part thereof as herein specified, or if, without the consent of
the Landlord, the Tenant shall sell, assign, or mortgage this lease or if
default be made in the performance of any of the covenants and agreements in
this lease contained on the part of the Tenant to be kept and performed, or if
the Tenant shall fail to comply with any of the statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State and Local Governments
or of any and all their Departments and Bureaus, applicable to said premises, or
if the Tenant shall file or there be filed against Tenant a petition in
bankruptcy or arrangement, or Tenant be adjudicated a bankrupt or make an
assignment for the benefit of creditors or take advantage of any insolvency act,
the Landlord may, if the Landlord so elects, at any time thereafter terminate
this lease and the term hereof, on giving to the Tenant five days' notice in
writing of the Landlord's intention so to do, and this lease and the term hereof
shall expire and come to an end on the date fixed in such notice as if the said
date were the date originally fixed in this lease for the expiration hereof.
Such notice may be given by mail to the Tenant addressed to the demised
premises.
16th. Tenant shall pay the rent or charge, which may, during the demised
term, be assessed or imposed for the water used or consumed in or on the said
premises, whether determined by meter or otherwise, as soon as and when the same
may be assessed or imposed, and will also pay the expenses for the setting of a
water meter in the said premises should the latter be required. Tenant shall pay
Tenant's proportionate part of the sewer rent or charge imposed upon the
building, or the property or the operation of the property. All such rents or
charges or expenses shall be paid as additional rent and shall be added to the
next month's rent thereafter to become due.
17th. That the Tenant will not nor will the Tenant permit undertenants or
other persons to do anything in said premises, or bring anything into said
premises, or permit anything to be brought into said premises or to be kept
therein, which will in any way increase the rate of fire insurance on said
demised premises, nor use the demised premises or any part thereof, nor suffer
or permit their use for any business or purpose which would cause an increase in
the rate of fire insurance on said building, and the Tenant agrees to pay on
demand any such increase.
18th. The failure of the Landlord to insist upon a strict performance of
any of the terms, conditions and covenants herein, shall not be deemed a waiver
of any rights or remedies that the Landlord may have, and shall not be deemed a
waiver of any subsequent breach or default in the terms, conditions and
covenants herein contained. This instrument may not be changed, modified,
discharged or terminated orally.
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19th. If the whole or any part of the demised premises shall be acquired
or condemned by Eminent Domain, or sold under threat or imminence of such
Eminent Domain, or any public or quasi public use or purpose when and in that
event, the term of this lease shall cease and terminate from the date of title
vesting in such proceeding, or sold under threat or imminence of such Eminent
Domain, and Tenant shall have no claim against Landlord for the value of any
unexpired term of said lease. No part of any award shall belong to the Tenant.
20th. That after default in payment of rent or violation of any other
provision of this lease, or upon the expiration of this Lease the Tenant moves
out or is dispossessed and fails to remove any trade fixtures or other property
prior to such said default, removal, expiration of lease, or prior to the
issuance of the final order or execution of the warrant, then and in that event,
the said fixtures and property shall be deemed abandoned by the said Tenant and
shall become the property of the Landlord.
21st. In the event that the relation of the Landlord and Tenant may cease
or terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference between the rent reserved and the
rent collected and received, if any, by the Landlord during the remainder of the
unexpired term, such difference or deficiency between the rent herein reserved
and the rent collected, if any, shall become due and payable in monthly payments
during the remainder of the unexpired term, as the amounts of such difference or
deficiency shall from time to time be ascertained; and it is mutually agreed
between Landlord and Tenant that the respective parties hereto shall and hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other on any matters whatsoever arising out of
or in any way connected with this lease, the Tenant's use or occupancy of said
premises, and/or any claim of injury or damage.
22nd. The Tenant waives all rights to redeem under any law of the State of
New York.
23rd. This lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in nowise be affected, impaired or excused because Landlord
is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in making any
repairs, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency or in connection with any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
condition of supply and demand which have been or are affected by war or other
emergency.
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24th. No diminution or abatement of rent, or other compensation, shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its appliances, nor for any space
taken to comply with any law, ordinance or order of a governmental authority.
SEE ALSO ATTACHED RIDER, CONTAINING ADDITIONAL PARAGRAPHS "25th" THROUGH
"32nd", HEREBY EXPRESSLY INCORPORATED HEREIN AND MADE A PART OF THIS LEASE
AGREEMENT.
And the said Landlord doth covenant that the said Tenant on paying the
said yearly rent, and performing the covenants aforesaid, shall and may
peacefully and quietly have and enjoy the said demised premises for the term
aforesaid, provided however, that this covenant shall be conditioned upon the
retention of title to the premises by the Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and
agreements contained in the within lease shall be binding upon the parties
hereto and upon their respective successors, heirs, executors and
administrators.
IN WITNESS WHEREOF, the parties have interchangeably set their hands and
seals (or caused these presents to be signed by their proper corporate officers
and caused their proper corporate seal to be hereto affixed) this 1st day of
June, 1988.
Signed, sealed and delivered
in presence of X.X. XXXXXXX MANUFACTURING CO.,
INC., Tenant
By: /s/ Xxxxxx X. Xxxxxxx, President
--------------------------------
Xxxxxx X. Xxxxxxx, President
[SEAL]
EMPIRE REALTY COMPANY, Landlord
By: /s/ Xxxxxxx Xxxx, Partner
--------------------------------
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RIDER TO (LEASE) AGREEMENT OF JUNE 1, 1988
BETWEEN EMPIRE REALTY COMPANY
AND X.X. XXXXXXX MANUFACTURING CO., INC.
25th. (a) Except as otherwise expressly provided in "(b)" below, it
is the intention of Landlord and Tenant (i) that the rent hereinabove specified
shall be net to the Landlord during the term of this (Lease) Agreement and (ii)
that all costs, expenses and obligations of operating and maintaining the
facilities which may arise or become due during the term of this (Lease)
Agreement shall be seasonably and fully paid and satisfied by Tenant.
(b) Landlord shall pay the total heating fuel expenses and
real estate taxes (including special assessments), together with any mortgage
amortization or other payments on the Landlord's obligation to any mortgagee or
mortgagees of the premises.
(c) Without limiting or in any other manner restricting the
scope or effect of "(a)" above, Tenant shall, at its own cost and expense, make
all necessary structural repairs and replacements to the premises and equipment,
including (without limitation) any heating system, plumbing system, electrical
system, window glass, fixtures and all other appliances and appurtenances
belonging to or incidental to the structure, devices and equipment used in
connection with the premises and any black-topped or other areas adjoining or
appurtenant to the highway or to the structure on the premises. Such structural
repairs and replacements, interior and exterior, shall be made promptly, as and
when necessary.
26th. Through the term of this (Lease) Agreement, Tenant shall at
its own cost and expense maintain and carry fire insurance (with appropriate
"loss payable" clauses) and public liability insurance (with respect to both
personal injury and property damage), in such amounts and with such companies as
may be approved by the Landlord, which approval will not be unreasonably
withheld. In the case of public liability insurance, coverage shall be in the
amount of at least $500,000.00. Upon demand, the policy or policies evidencing
such insurance coverage (or certificate or copies thereof) shall be deposited
with Landlord or its agent.
27th. In the event of any partial or complete condemnation (or
threat or imminence thereof) of the premises or any part thereof, Landlord shall
give notice thereof to Tenant as promptly as possible.
28th. Landlord shall have the right, without disposing of its fee
interest in the premises, at any time or f rom time to time, to assign the whole
or any part of the rent at any time payable hereunder, to any person, firm,
corporation, trust or other entity designated by Landlord in a written notice to
Tenant, and in any such case Tenant shall pay the net rent directly to
Landlord's designee at the address mentioned in any such notice, for the period
covered by such assignment.
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29th. Landlord shall not be liable to Tenant for injury or damage,
however caused, to any property or person on the premises.
30th. Tenant will keep the premises in a clean and neat condition,
in accordance with all applicable laws and ordinances and any regulations made
pursuant thereto.
31st. Any improvements and additions to the premises by Tenant
(which can only be made with Landlord's consent) and/or any structural
replacements shall be and become the property of Landlord at the end or other
expiration of this (Lease) Agreement. No such improvements, additions,
structural improvements or other components, systems or paraphernalia (or any
part(s) thereof) may be removed (or caused to be removed) by Tenant.
32nd. The "(Lease) Agreement" between the Landlord and the Tenant,
dated January 2, 1986, and the term thereof, will be terminated on December 31,
1988 and be of no further force or effect.
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