Exhibit 10.59
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made this 9th day of September, 1985,
between 5 Mile Point Industrial Park, Inc. with an address of c/o X. X.
XXXXXXXX, INC., Xxx 000, Xxxxxxxx, Xxx Xxxx, 00000 ("Lessor") and MAMCO
MILLWORKS OF NEW YORK, INC., a New York corporation with an address c/o Middle
Atlantic Millwork Co., Chestnut & Xxxxxxx Xxxxxxx, Xxx 00, Xxxxxxxx
Xxxxxxx, Xxx Xxxxxx 08097 ("Lessee").
W I T N E S S E T H:
1. DEMISE OF PREMISES: CONSTRUCTION BY LESSOR. Lessor hereby leases to
Lessee and Lessee hereby leases from Lessor, for the rental term and upon the
covenants and conditions herein stated, the following premises, consisting of a
building (the "Building") to be designed and constructed by or on behalf of
Lessor in accordance with the final plans and specifications attached hereto as
Schedule A and made a part hereof (the "Plans and Specifications") on land in
the Town of Kirkwood, County of Xxxxxx, New York adjacent to Route 11 and more
particularly described in Schedule B attached hereto and made a part hereof,
together with the right to use the main access road and private road to the main
highway as depicted on the Site Plan as hereinafter defined, to be used in
common with other property (said land, building and appurtenances known as the
"Premises").
Lessor shall be responsible for and shall construct to completion all
elements of the Building and site improvements as set forth in the Plans and
Specifications and shall include, whether or not set forth on the Plans and
Specifications recycled asphalt access drive, truck loading and parking areas,
automobile parking sufficient for fifty (50) cars, curbing and bumpers, lot
striping, sidewalks to entrances, storm drainage facilities as required and a
rail siding (which siding may extend to serve and be used in common with other
property), all truck ramp doors shall be at least 18 feet wide and 16 feet high,
an indoor utility sink, garage doors allowing sufficient height clearance for
fork lift use to, on and under the door areas and curbing on each side of the
ramps from ground level to warehouse floor level, the two rail access doors
shall be evenly spaced across the Building and the first and second floor plans
shall be reversed. Lessee shall make available to Lessor, and shall deliver to
the Premises within forty-five (45) days of receipt of Lessor's written request,
the items set forth on Schedule B-1 attached hereto and made a part hereof;
provided, however, if Lessee is unable to make all or any part of such items
available within said forty-five (45) day period, due to circumstances beyond
Lessee's control, Lessee shall have an additional thirty (30) days to make such
items available, at which time, if such items are not available, Lessor shall
purchase such items at the lowest price reasonably available and submit an
invoice to Lessee for such items which Lessee shall pay within thirty (30) days
of receipt.
All construction work shall be performed and completed in a good and
workmanlike manner, in accordance with all rules and regulations of insurance
carriers and governmental authorities having jurisdiction over the Premises.
Lessor at its expense shall obtain any building permits, occupancy permits or
certificates necessary for the lawful construction and occupancy of the Premises
by Lessee for the purposes set forth herein.
Lessor shall enforce for the benefit of Lessee any and all warranties
obtained from Lessor's general contractor, or any subcontractor or supplier,
including, without limitation, American Buildings Company. Further, Lessor shall
obtain, at Lessor's cost all warranties available for the structure supplied by
American Buildings Company except the "weatherproofing" warranty which shall be
obtained only at Lessee's cost and upon Lessee's written request.
2. Expansion of Building. Lessor represents that, as of the date hereof,
the construction of an addition to the Building, as described below, would be
consistent with existing zoning and other applicable building, planning and
environmental laws and regulations. Lessor agrees to obtain a building permit
(or written evidence reasonably satisfactory to Lessee to the effect that a
building permit could lawfully be issued) for an addition, described below, (the
"Addition") prior to commencement of construction of the Building (unless Lessee
shall have authorized commencement prior to receipt of such permit).
Lessor agrees to build the Addition to the Premises to be constructed
pursuant to this Agreement upon the following terms and conditions provided that
the Town of Kirkwood agrees to issue all necessary permits for the construction
and occupancy of said Addition. Lessor shall use its best efforts to obtain such
permits.
If Lessee elects to expand the Building as shown on the site plan attached
hereto as Schedule C and made a part hereof (the "Site Plan"), then Lessor shall
prepare preliminary plans and specifications for the Addition, together with a
proposal for additional rent (and security) for said construction. Upon the
acceptance of the preliminary plans and specifications and proposed additional
rental and security by Lessee, the parties shall enter into an agreement
modifying the rent and security and Lessor shall prepare final plans and
specifications for the Addition and shall construct the Addition after Lessee's
approval of the final plans and specifications. The Addition shall be at the
same floor elevation as the Building and shall include an extension of the rail
siding to serve the Addition. Said Addition to the Building shall not exceed
fifty (50%) percent of the area (40,000 sq. ft.) of the Building originally to
be constructed on the Premises and shall be of the same pre-engineered metal
construction using the same basic design and materials as the Building. Such
Addition will be in conformance with then existing Zoning Laws of the Town of
Kirkwood. Lessor shall lease the Addition to Lessee under the same terms and
conditions as herein provided, commencing upon the completion of the Addition,
but with rent to be payable at a rate mutually agreed upon, such rate to be
determined prior to construction as set forth above. In the event Lessor and
Lessee are unable to agree upon final plans and specifications or a mutually
satisfactory rent or security, then Lessor shall not be obligated to construct
the addition and this Lease shall continue as otherwise provided. Lessor shall
not be obligated to construct the addition unless there are at least 6 years
remaining on the term of this Lease (including any Renewal Term hereof for which
Lessee agrees to exercise its option). In the event of construction of the
Addition to the Building, Lessor shall enforce for the benefit of Lessee any and
all warranties obtained from Lessor's general contractor, subcontractors or
suppliers, including, without limitation, the manufacturer of the Addition or
its components. The Addition, upon completion, shall be deemed a part of the
Premises as defined herein.
In the event Lessor is unable to construct the Addition as designated by
Lessee (except as set forth below), Lessee shall have an option to purchase the
Premises at the price of the greater of $2,000,000.00 or the Fair Market Value,
as established herein, under the following terms and conditions, provided, the
failure of the parties to agree upon a satisfactory lease rental and security or
upon plans and specifications for the proposed addition shall not constitute
grounds for the exercise of this option.
The Fair Market Value of the Premises shall be such value as determined by
an independent appraiser (with MAI designation) as shall be selected by the
concurrence of Lessor and Lessee. If Lessor and Lessee are unable to agree upon
an appraiser, both Lessor and Lessee shall each designate an MAI appraiser and
such designated appraisers shall select a third MAI appraiser who shall appraise
the Premises and determine its Fair Market Value. Lessor and Lessee shall
endeavor to agree upon an appraiser within thirty (30) days of Lessee's exercise
of its option. In the event no appraiser is agreed upon within such thirty (30)
day period, each party shall designate its appraiser within fifteen (15)
additional days and such appraiser shall designate the final appraiser within a
further fifteen (15) days. The appraiser or appraisers having the authority to
determine Fair Market Value in accordance with the terms of this Lease shall be
directed to render a determination within fifteen (15) days of the date on which
his or their authority to make such determination becomes final. The
determination of the appraiser or appraisers shall be final, binding and
non-appealable. In the event either party fails to designate an appraiser within
the referenced time, the selection made by the other party shall govern.
Lessee's option to purchase the Premises shall be exercisable in writing within
ninety (90) days of Lessor's written notification to Lessee that Lessor is
unable to construct the Addition.
Closing under the sale of the Premises shall take place within forty-five
(45) days of determination of the Fair Market Value of the Premises at which
time Lessor shall deliver its Bargain and Sale Deed with Covenants against
grantor's acts for the Premises conveying good and marketable title, free and
clear of all liens and encumbrances, except those easements and restrictions set
forth in Schedule D, and subject to rights of others in the railroad siding and
to utility easements for the benefit of adjoining users, provided such easements
do not prevent use of the Premises as contemplated herein. Lessor shall
concurrently deliver an owner's title insurance commitment on the current ALTA
form insuring title as aforesaid. Seller shall pay all transfer fees and taxes.
Rent and other current charges shall be adjusted as of the date of closing and
closing expenses shall be allocated or paid as customarily provided in Xxxxxx
County, New York.
3. RENTAL TERM. The initial rental term is eight (8) years, commencing
July 1, 1986 or on such later date as the Premises are substantially completed
and ready for occupancy. Lessor shall complete the Premises as soon as
reasonably possible but subject to delays, if any, in construction occasioned by
labor dispute, material, equipment, transportation or labor shortages, delay or
back order in material shipment, inclement weather, casualties or acts of God or
other causes beyond Lessor's control (any of the foregoing events or
circumstances being referred to herein as a "Force Majeure") and the completion
time shall be extended from the period of all such delays. Notwithstanding the
foregoing, in the event the Premises are not substantially completed and ready
for occupancy by October 1, 1986, Lessee shall have the option to terminate this
Lease by written Notice to Lessor within 30 days of such date; provided,
however, that such date shall be extended by the number of days delay in
delivery of the items which Lessee is to deliver to Lessor pursuant to Section 1
of this Agreement.
The Premises shall be deemed substantially completed and ready for
occupancy upon the satisfaction of all of the following conditions: (1) the
Premises are fit for Lessee's Intended Use, defined below, being so physically
completed, except for items of minor adjustments, finishing work to be done by
Lessee and the like, that the Premises are in such physical condition that the
same reasonably may be lawfully and in fact used and occupied by Lessee as
provided in Paragraph 5; (2) a permanent or temporary Certificate of Occupancy
has been issued by the appropriate governmental official; (3) Lessee has
received a certification (at Lessee's cost) from a professional engineer
licensed in New York State reasonably acceptable to Lessor and Lessee and
identified on Schedule F attached or to be attached hereto and made a part
hereof (the "Approving Engineer") certifying that the Building has been
completed in accordance with the Plans and Specifications, this Lease and all
applicable governmental regulations and building codes (the "Completion
Certificate"); (4) Lessor has notified Lessee of substantial completion
tendering possession of the Premises to Lessee; and (5) five days have elapsed
since the date of such notice. Lessor and Lessee shall enter into a written
memorandum specifying the precise commencement date. In the event the Approving
Engineer ceases business operations or otherwise fails to perform the functions
ascribed to him hereunder, Lessor and Lessee shall agree on a new professional
engineer licensed in New York State to serve as the Approving Engineer, such
selection to be made within fifteen (15) days of written notice by either party
of such failure of performance, provided, however that the Approving Engineer's
failure to provide the Completion Certificate because he believes the criteria
for providing same have not been met, shall not be deemed justification for
asserting that the Approving Engineer has failed to perform. In the event Lessor
and Lessee fail to agree on a substitute Approving Engineer within the aforesaid
fifteen (15) day period, they shall, within five (5) days, each provide the
names of two (2) engineers meeting the criteria set forth herein and willing to
so serve and the substitute Approving Engineer shall be selected by lottery from
among the four (4) names, (or from the two (2) names if one of the parties has
failed to timely submit names) such selection to be made two (2) days following
the aforesaid five (5) day period.
Lessee shall have the option of renewing the term hereof, provided Lessee
is not then in default under any provision of this Lease, for an additional five
(5) years (the "First Renewal Term") and thereafter for an additional two (2)
years (the "Second Renewal Term) in each event upon giving Lessor written notice
one hundred eighty (180) days prior to the expiration of the then current term
of Lessee's exercise of its option to renew.
Lessor shall provide to Lessee, at the same time it provides such items to
any lender financing the Premises, (i) a survey of the Premises prepared by a
surveyor licensed in the State of New York, and (ii) a current title report on
the Premises, which report shall include copies of all items shown of record
with respect to the Premises.
4. DEPOSIT; RENTAL AMOUNT; SECURITY. Lessee shall pay, upon execution
hereof, a deposit payment of $25,000.00 to be credited as herein provided and to
be refunded in the event Lessee is entitled to terminate this Lease by reason of
Lessor's material breach. The annual rental during the initial rental term and
for both the First Renewal Term and the Second Renewal Term is $165,000.00, per
year, payable (except as herein provided) in equal monthly installments in
advance, on the first day of each month of the term. Rent shall be prorated for
partial months and Lessee's deposit payment shall be credited against the first
five (5) months' installments of rent, at the rate of $5,000.00 per month. All
rental payments shall be made to Lessor at Lessor's address aforesaid or to such
other payee and/or such other place as Lessor, by ten days' prior written
notice, shall designate to Lessee.
In the event Lessee elects not to exercise its option for the First
Renewal Term, then Lessee shall pay to Lessor 150 days prior to the expiration
of the initial rental term, the sum of $165,000.00 plus an amount equal to one
year's rent for the Addition, if constructed pursuant to Paragraph 2, prior to
the end of the initial rental term.
5. USE OF PREMISES. Lessee shall have the right to use the Premises for
any lawful purpose, subject to (a) applicable zoning and other ordinances and
regulations, (b) all existing building restrictions of record, none of which
ordinances or restrictions shall limit or prohibit use of the Premises for
Lessee's Intended Use (herein defined) and (c) the restriction that the Premises
will not be used for any noxious or offensive purposes, shall not constitute a
nuisance and shall not be used in a manner which would be unreasonably
detrimental to Lessor's development of its adjoining properties for industrial
purposes. Lessor warrants that Lessee may use the Premises for office purposes
and for Lessee's business of warehousing, storing, fabricating, assembling,
shipping and receiving of building or other materials, millwork and related work
in progress ("Lessee's Intended Use").
Lessor warrants that the Premises is not situated in the 100 year flood
hazard area as designated by the Department of Housing and Urban Development.
6. ADDITIONAL RENT. As additional rental, Lessee shall pay to Lessor,
within fifteen (15) days after Lessor certifies to Lessee the amount thereof,
but not prior to fifteen (15) days prior to the date such amounts are due to the
applicable governmental authority, all ad valorem real property taxes, school
taxes, special assessments or payments to governmental instrumentalities in lieu
of taxes assessed against the Premises, including any additional construction,
to the extent such payments exceed $18,000 per annum.
Nothing herein contained shall be construed to include as "taxes" any
inheritance, estate, succession, transfer, gift, franchise, corporation, net
income or profit tax or capital levy that is or may be imposed upon Lessor.
Lessee shall have the right to contest real estate taxes or other charges
assessed against the Premises.
7. UTILITIES. Lessor warrants and represents that at the commencement of
the initial rental term the following utilities will be available for the
Premises for use by Lessee: electricity, gas (if made available by the utility
to the industrial park of which the Premises is a part) potable water, sewer,
telephone service. All hook up and connection charges to bring these utilities
into the Premises shall be borne by Lessor. Following installation, Lessee shall
pay for all charges by public authority or private utility for any and all
water, sewer, electric, gas, telephone and other utility service supplied to the
Premises and used by Lessee during the rental term.
8. MAINTENANCE OF PREMISES. Except as otherwise provided herein, Lessee,
at Lessee's sole expense, shall maintain the Premises in good order and
condition and make all repairs and replacements to the Building (except those
which are the responsibility of Lessor), parking areas adjacent to the Building,
the sidewalks, curbs and all areas used in connection with the operation of the
Premises.
Lessor shall, throughout the initial rental term and any renewal term,
have the obligation of maintaining the roof, foundation, structural supports and
exterior walls of the Building, excluding any casualty arising directly from any
negligent act or omission of the Lessee, and shall further undertake and
initiate all repairs or maintenance to the Premises covered by any warranties
given to Lessor. Lessor shall remain responsible for cleaning, maintenance,
repair and replacement of any common facilities which serve the Premises and any
other property, including the rail spur, and, as applicable, any common access
drive and any water, sewer, drainage or utility facilities, unless such access
drives have been dedicated by Lessor and accepted by the Town of Kirkwood or if
such utilities are provided by any municipality or by a regulated utility.
Lessee shall make no alterations or additions to the Premises without
Lessor's consent, which shall not be unreasonably withheld or delayed. All
alterations or additions made with such consent shall be part of the Premises
and the property of Lessor, subject to the terms of this Lease unless otherwise
provided by the instrument of consent. Lessee's trade fixtures, equipment or
other personal property placed on the Premises may be removed by Lessee at any
time during the rental term; but if installation of any of same in or on the
Premises or the removal therefrom of any thereof causes damage to the Premises,
all such damage shall be fully repaired promptly by Lessee at Lessee's expense.
Lessor agrees that Lessee may and shall be permitted to erect either a
free standing or facade sign on the Premises identifying the location of
Lessee's facility, provided the sign is acceptable to the Town of Kirkwood and
reasonably acceptable to Lessor.
9. INSURANCE. Lessee shall provide and keep in effect upon the
commencement of the initial rental term of this Lease and throughout such term
and any renewal term, for the benefit of Lessee and Lessor:
(a) A policy of public liability insurance and property damage
insurance in an amount not less than $10,000,000.00 with respect to the Premises
covering both the Lessor and the Lessee. The Lessor shall be named as an
additional insured on such policy. Such policy shall not be required to be
obtained by Lessee until the commencement of the initial term of this Lease.
(b) A policy or policies of insurance against loss by hazards covered
by the standard fire and extended coverage endorsement and such additional
hazards as are required to be insured against by Lessor in an amount equal to
the full replacement cost of the Premises, plus all fixtures, equipment and
facilities therein. The Lessor shall be named as an additional insured on such
policy. The proceeds of such insurance shall be payable to the Lessor for use in
accordance with Section 10. Said policy shall also provide for rental
interruption insurance for the benefit of the Lessor in an amount equal to one
year's gross rental income.
(c) Lessee shall provide Certificates of Insurance evidencing the
insurance coverage required in Paragraphs 9(a), 9(b) and 9(c). Lessee shall also
provide a policy of standard "builders risk" insurance commencing upon execution
of this Lease.
10. DAMAGE BY FIRE, ETC. In the event of damage to the Premises by fire or
other casualty during the rental term, Lessee shall notify Lessor thereof
immediately.
Except during the last two years of the initial, rental term or of an
exercised renewal term, Lessor shall repair and restore the Premises to its
condition prior to the damage. Work shall commence promptly after the damage is
surveyed and insurance payment therefor is assured but, in any event, not more
than 30 days after the damage occurs or 10 days after insurance proceeds are
received, whichever is later; and the work shall be completed as soon as
reasonably practical, and in any event within 150 days after commencement, such
commencement and completion being subject to delays incident to a Force Majeure.
If, such damage is not repaired and the Premises restored substantially to
their condition before the damage within one-hundred fifty (150) days after work
therefor is commenced (which one-hundred fifty (150) day period may be subject
to extension for a period not longer than an additional one-hundred twenty (120)
days by reason of a Force Majeure) Lessee shall have the option either to
terminate this Lease or to direct Lessor to continue to repair the damage and
restore the Premises.
If, at the time of a casualty (whose restoration would require more than
sixty (60) days time, in Lessor's reasonable estimation) two years or less
remain in the term (inclusive of exercised renewal terms), Lessor may terminate
this Lease unless Lessee shall agree to extend the then current term (or
exercise a renewal term, as applicable) in order that this Lease shall continue
for a minimum of four (4) years from such casualty at the same terms and
conditions as set forth herein. Notice of the manner of Lessor's exercise of the
option shall be given to Lessee within thirty (30) days after the damage occurs,
and Lessee shall have thirty (30) days after receipt of such notice to notify
Lessor whether it accepts such termination or elects to extend or renew the
term.
If the Premises are rendered wholly or partially untenantable by such
casualty or by action of public authority by reason thereof, the rental and
additional rental payable by Lessee hereunder shall be abated for the period
intervening between the date of the casualty and the date the casualty is
repaired and the Premises are restored so as to be substantially completed and
ready for occupancy as defined in Paragraph 3. Such abatement shall be
apportioned and applied only to that part of the Premises so rendered
untenantable, provided, however, that if such portion of the Premises is
rendered untentable as would make the entire Premises commercially impracticable
for Lessee's use, such abatement shall apply to the entire Premises.
11. EMINENT DOMAIN. Lessee hereby assigns to Lessor all rights to
compensation or damages, if any, with respect to the fee interest in the
Premises on condemnation of the Premises in whole or in part under power of
eminent domain. Lessee shall be entitled to any separate award or compensation
or damages related to its interest or property in the Premises, including
business dislocation and relocation payments, provided that no such award or
payment shall reduce or diminish the condemnation award otherwise payable to
Lessor as the owner of the Premises.
If any such condemnation of all or any substantial part of the Premises
renders the Premises unusable for the purposes for which it was being used prior
to the taking, Lessee, by 30 days' prior written notice to the Lessor, may
terminate this Lease; but if the Lease is not so terminated, Lessor shall make
such repairs, if any, as are reasonably necessary to restore the part thereof
not condemned to tenantable condition. Lessor, in so doing, shall not be
required to expend more than the net amount received by Lessor in the
condemnation proceedings for damage to such part of the Premises not condemned
unless Lessee pays the amount of the excess of the expenditure. Restoration
repairs, if made, shall begin within thirty (30) days after Lessee vacates the
part of the Premises condemned and shall be completed with reasonable diligence,
subject, however, to delays incident to governmental regulation, unavailability
of material or labor and other causes beyond Lessor's control; but, if such
restoration is not completed within one hundred fifty (150) days after such work
is commenced, Lessee shall have the option to terminate this Lease or to direct
Lessor to continue restoration.
12. ASSIGNMENT AND SUBLETTING. Upon notice to Lessor, Lessee shall have
the right, at any time and from time to time, to assign this Lease and to sublet
all or any portions of the Premises, provided the Letter of Credit (as defined
herein) shall remain in full force and effect. Except for assignments made
pursuant to subpart (B) in the following paragraph, no assignment or subletting
shall release Lessee from Lessee's obligations and commitments.
Lessee may (A) assign this Lease or sublet all or part of the Premises to a
subsidiary corporation in which it has and, throughout the period of Lease if
assigned, or the period of subletting, continues to have a controlling stock
interest; or (B) assign this Lease to any corporation with which it consolidates
or merges provided that (a) the net assets of the surviving corporation
immediately following the consolidation or merger, determined in accordance with
generally accepted accounting principles, shall be not less than the net assets
of Lessee immediately preceding the consolidation or merger, determined in like
manner and (b) Lessee provides Lessor, immediately following the consolidation
or merger, with evidence satisfactory to Lessor of the fact of consolidation or
merger, the aforesaid net asset value of the surviving corporation and the
assumption by the surviving corporation of all of Lessee's obligations and
commitments hereunder. No assignment or subletting pursuant to this paragraph
shall affect the continued effectiveness of the Letter of Credit for its full
term.
Notwithstanding the foregoing, in the event a proposed assignment by
Lessee is incident other than to (i) a bona-fide sale or transfer of Lessee's or
Lessee's parent's business or (ii) a corporate reorganization or restructuring
by Lessee or Lessee's parent, Lessor shall have the right to terminate this
Lease, provided notice of termination is given by Lessor within thirty (30) days
of Lessee's notice of the proposed assignment, and upon such termination neither
party shall have further obligations under this Lease.
13. SUBORDINATION. At Lessor's request Lessee shall execute, acknowledge
and deliver to Lessor, in recordable form, from time to time, such instruments
as are necessary or appropriate to subordinate Lessee's estate and interest
hereunder to any mortgage, trust deed or similar encumbrance held by an
institutional lender, Industrial Development Agency or its institutional
mortgagee ("Mortgage") imposed upon the Premises or any property of which the
Premises are a part or upon Lessor's estate and interest therein, provided that
the holder of such Mortgage, simultaneously executes, acknowledges and delivers
to Lessee, in recordable form, an agreement not to disturb Lessee's right in or
possession of the Premises so long as Lessee is not in default hereunder. The
holder of any such Mortgage, now or hereafter having priority over this Lease
may subordinate same to this Lease by notice to Lessee and without Lessee's
consent and, upon such subordination, such holder shall have the same rights
with respect to this Lease as though this Lease had been executed and delivered
prior to execution and delivery of said Mortgage, and had been assigned by
Lessor to such holder.
14. INDEMNITY. Lessee shall save and keep Lessor harmless and indemnified
from all loss or damage to any person or property while on the Premises arising
from any violation or non-performance of the Lessee's obligations under this
Lease or negligence of the Lessee, its agents, servants, licensees, or invitees
(unless caused by the act, negligence or default of Lessor, its employees,
agents, licensees or contractors).
Lessor shall save and keep Lessee harmless and indemnified from all loss
or damage to any person or property while on the Premises arising from any
violation or non-performance of the Lessor's obligations under this Lease or the
negligence of the Lessor, its agents, servants, licensees, or invitees (unless
caused by the act, negligence or default of Lessee, its employees, agents,
licensees or contractors), provided that such indemnification shall not extend
to loss or damage covered by Lessee's hazard insurance coverage.
15. LETTER OF CREDIT. At all times during the term of this Lease, Lessee
will maintain an Irrevocable Letter of Credit (the "Letter of Credit") in favor
of the Lessor, in substantially the form of Schedule E attached hereto and made
a part hereof, and in an amount not to exceed the amount as shown on Exhibit X.
Xxxxxx and Lessee agree with respect to the Letter of Credit that:
(a) The Letter of Credit will be established and maintained with a Bank
reasonably acceptable to Lessor. Pittsburgh National Bank is deemed reasonably
acceptable to Lessor.
(b) Lessee shall have the right to substitute a new Letter of Credit for
an existing one so long as the provisions of this Section 15 of the Lease
Agreement are preserved. In the event the Letter of Credit is terminated or not
renewed by the issuer or in the event any substitute letter of credit is
terminated or not renewed by the issuer thereof, Millwork Industries, Inc. shall
have the right to obtain and deliver to the beneficiary a substitute letter of
credit in form and substance substantially equivalent to the Letter of Credit,
or provide other security acceptable to beneficiary. Such beneficiary agrees not
to exercise its right to draw upon the Letter of Creditor (or any substitute
Letter of Credit) as set forth in the Letter of Credit so long as the substitute
Letter of Credit or other acceptable security is received by the beneficiary
within the applicable time period under the Letter of Credit.
(c) The Beneficiary under the Letter of Credit (as defined therein) will
be entitled to draw sums in such manner prescribed by the Letter of Credit only
at or after such date as the Premises is substantially completed and ready for
occupancy as defined in Section 3 of this Lease Agreement and as evidenced by
delivery to the issuer of the Letter of Credit of the Completion Certificate and
then in such event and only in such event as Lessee fails to pay rental payments
or other money under the terms of this Lease Agreement. In the event the Letter
of Credit (or any substitute letter of credit) is drawn upon due to the
cancellation thereof by the issuer and Lessee's failure to provide a substitute
letter of credit or other collateral acceptable to Lessor within 25 days of
Lessor's receipt of notice of cancellation, all amounts received by Lessor by
virtue of such draw shall be credited against rent due hereunder, starting with
the next payment due and continuing to be credited against consecutive payments
thereafter, and Lessor shall not be entitled to enforce any remedies provided
under this Lease Agreement against Lessee for non-payment of rent so long as
such credit is available and thereafter so long as Lessee then commences to pay
rent due hereunder.
(d) The amount of any draft drawn under the Letter of Credit will not
exceed the amount which Lessee is required to pay in accordance with this Lease.
Any amounts realized by the Lessor upon reletting of the Premises or other
revenues that would constitute mitigation of damages under New York law shall be
credited against amounts deemed to be required to be paid by Lessee to Lessor
under the Lease in determining the amount which Lessor may draw under the Letter
of Credit.
(e) The beneficiary will be entitled to draw such amounts as Lessee
would be required to pay under the Lease whether or not the Lessee has entered
into bankruptcy proceedings.
(f) The Letter of Credit may be transferred to a permanent lender for
the Premises, provided however that such transferee as a condition of such
transfer shall be required to execute this Lease and become a party hereto with
regard to those provisions of the Lease pertaining to the Letter of Credit.
16. LESSOR'S ACCESS TO PREMISES. At any reasonable time, in a reasonable
manner, and upon prior notice to Lessee, Lessor may inspect the Premises and
show same to prospective purchasers, lienholders and others having a legitimate
interest therein and it may enter the Premises for any purpose of this Lease.
Lessor may also place, in reasonable locations on the Premises, notices for sale
or lease thereof or part thereof at any time within nine months before
expiration of the initial term and any renewal terms.
17. SURRENDER OF POSSESSION. At the end of the initial rental term, any
renewal term or on earlier termination hereof, Lessee shall surrender the
Premises to Lessor in the condition in which Lessee is required to keep same
hereunder, reasonable wear and tear excepted, with all signs, office fixtures,
equipment and other property that the Lessee is entitled hereunder to retain
removed therefrom without damage thereto and repairing any damage to the
Premises resulting from such removal.
18. GOVERNMENTAL REGULATION. Lessee, throughout the rental term, shall
fully comply with all laws and governmental regulations applicable to the
Premises provided, however that compliance in the nature of capital expenditures
shall remain the responsibility of Lessor, unless such capital expenditures are
necessitated by reason of Lessee's use of the Premises, in which event such
expenditures shall be borne by Lessee. Lessee may legally contest the validity
or applicability of any such law or regulation, however, provided that such
contest does not jeopardize the Premises or Lessor's interest therein.
19. DEFAULTS AND REMEDIES. If, during the initial rental term or any
renewal term, (a) Lessee fails to comply with any of its commitments or
obligations hereunder and such failure continues for ten days following notice
in the event of failure to pay rent or other sums due hereunder, or for thirty
days following notice in the event of any other such failure, or (b) Lessee
makes an assignment for benefit of creditors, commits an act of bankruptcy or
files a petition in bankruptcy or under any insolvency law, or (c) such a
petition is filed against Lessee and not dismissed within sixty days thereafter,
or (d) Lessee commits an anticipatory breach of the Lease prior to the
commencement of the rental term, then Lessee shall be deemed to be in default
hereunder.
Upon any such default by Lessee, Lessor may take possession of the Premises
and all alterations, additions and improvements thereto in any lawful manner and
Lessee shall permanently surrender same forthwith. Upon so taking or otherwise
recovering or receiving possession of the Premises, Lessor shall endeavor to
relet same for Lessee's account or otherwise, collect all rentals therefor and
apply such rentals (a) to Lessor's expenses of recovering possession of the
Premises, including reasonable attorneys' fees in connection with recovering
possession of the Premises or collecting any sums due under the terms of this
Lease, or enforcing any obligations under this Lease, and (b) to fulfilling
Lessee's commitments and obligations for the entire rental term hereunder. In
any event, Lessee shall be liable for and pay to Lessor on demand, as and when
the amounts thereof are determined, all deficiencies in the avails of such
reletting to meet such expenses, costs, including reasonable attorney's fees as
set forth above and rent hereunder for the entire unexpired balance of the term,
and all other commitments and obligations. In the event of a default by Lessee
which is not cured within the applicable cure period prior to the commencement
of the First Renewal Term, Lessor's damages shall include the sum of $165,000.00
plus an amount equal to one year's rent for the Addition, if constructed, as
provided in Paragraph 4 of this Lease. The obligation to pay this sum shall not
be offset by any rentals which may be collected by Lessor at anytime after the
initial rental term.
Alternatively, upon any such default by Lessee, Lessor may terminate this
Lease or treat same as terminated by Lessee and/or proceed against Lessee in any
lawful manner for recovery of damages arising from Lessee's default.
Lessor shall have no right (and hereby expressly waives any such right) to
distrain, levy upon or sell any property of Lessee in the Premises without prior
notice to, and entry of judgment against, Lessee.
Upon any default hereunder by Lessor, Lessee shall have the right, upon
thirty days notice to Lessor and to any mortgagee of which Lessee has been given
notice, set-off against rents due hereunder or pursue any remedy provided by
law.
20. NOTICES. All notices, certificates and requests hereunder by either
party hereto to the other shall be in writing hand delivered or sent by
registered or certified mail with return receipt to the addresses for each party
aforesaid. Either party, on ten days' prior written notice to the other, may
designate a different address to which notices, certifications or requests to
that party shall be delivered or addressed.
21.QUIET POSSESSION. Lessor, for itself and its successors and assigns,
hereby covenants and agrees so long as Lessee complies with all of the terms,
covenants and provisions of this Lease, that Lessee shall have the peaceful and
quiet use of the Premises without let or hindrance and Lessor shall warrant and
defend Lessee in such peaceful and quiet use and possession against the claims
of all persons.
22. RIGHT OF FIRST REFUSAL. Lessee shall have the right of first refusal to
purchase the Premises at the same price and pursuant to the same material terms
and conditions as set forth in any bona fide offer or agreement to purchase the
Premises or any interest therein, or any part thereof received by Lessor at any
time during the term of this Lease or any extension or renewal thereof
("Offer"). Upon the receipt by Lessor of an Offer, Lessor shall deliver a copy
thereof to Lessee. Lessee shall have thirty (30) days from receipt of a copy of
an Offer to notify Lessor of Lessee's intent to purchase the Premises, which
notification shall be deemed to bind Lessor and Lessee to the terms of the Offer
to the same extent as if each had executed an Agreement of Sale including such
terms. Notwithstanding anything to the contrary set forth in the Offer, the
closing date provided therein shall be amended to the later of (i) such date or
(ii) the date sixty (60) days after Lessee's receipt of a copy of the Offer. If
Lessee fails to deliver written notice of its intent to purchase the Premises
within thirty (30) days of receipt of a copy of an Offer, this right of first
refusal shall be deemed to have been waived by Lessee. This right of first
refusal shall not apply with respect to any offer to purchase the Premises by
(a) Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Roma and Xxxxxxx X. Roma (the "Principals");
(b) a wholly-owned subsidiary, parent or corporation resulting from a bona fide
merger or consolidation of Lessor; (c) a corporation in which the Principals are
the majority stockholders; (d) a limited partnership in which any of the
Principals is a general partner or a controlling partner in or controlling
shareholder of the general partner; or (e) a general partnership in which any
Principal is a partner.
23. RECORDING; INFORMATION. Upon request by Lessee, Lessor agrees to
execute a memorandum of this lease in recordable form which memorandum may be
recorded by Lessee. Lessor further agrees to execute and deliver such further
affidavits, information or assurances reasonably necessary in order to permit
Lessee to obtain title insurance for its leasehold interest. Lessor shall
provide Lessee with copies of the most recently available title policy and
survey for the Premises.
24. APPLICABLE LAW. This Lease and the rights and obligations of both
parties hereto hereunder shall be governed by the laws of the State of New York.
25. MODIFICATION OF LEASE. The terms, covenants and conditions hereof may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of the change, modification or discharge is sought. The
failure of either party hereto to insist in any one or more cases upon the
strict performance of any term, covenant, or condition of this Lease to be
performed or observed by the other party hereto shall not constitute a waiver or
relinquishment for the future of any such term, covenant, or condition.
26. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and all prior agreements either oral or written are merged into this
Agreement.
27. SUCCESSORS AND ASSIGNS. The terms, covenants, and conditions of this
Lease shall be binding upon and shall inure to the benefit of Lessor and Lessee
and their respective executors, administrators, heirs, distributees, legal
representatives, successors and assigns.
28. COOPERATION. Lessee hereby agrees to cooperate with Lessor in
connection with any application for financing of the construction of the
Premises through the issuance of industrial revenue bonds by the Xxxxxx County
Industrial Development Agency, and further agrees to execute such documents
reasonably necessary in furtherance of said application and the financing
contemplated thereunder; provided, however, that in no event shall Lessee be
obligated to take any action or execute any document which would impair Lessee's
rights or increase Lessee's obligations under this Lease, nor require Lessee to
incur any direct or indirect cost or expense (unless Lessor reimburses Lessee
for such cost or expense).
WITNESS DUE EXECUTION hereof by the parties hereto the date first above
stated.
LESSOR:
5 MILE POINT INDUSTRIAL PARK, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
XXXXXXX X. XXXXXXXX, President
Attest:
--------------------------------------
Secretary
[Corporate Seal]
LESSEE:
MAMCO MILLWORKS OF NEW YORK, INC.
By: /s/ WM C.A. XXXXXXXX
--------------------------------------
WM C.A. XXXXXXXX, JR, President
Attest:
-------------------------------------
XXXXXX XXXXXX,
Assistant Secretary
[Corporate Seal]
ASSIGNEE OF BENEFICIARY OF LETTER OF
CREDIT:
Name:_____________________________________
By: ______________________________________
[Corporate Seal] Attest: __________________________________
STATE OF NEW YORK :
: SS
COUNTY OF XXXXXX:
On this 9th day of September , 1985, before me duly sworn, Xxxxxxx X.
Xxxxxxxx , did depose and say that he resides at 000 Xxxxx Xxxxxxx, Xxxxxxxx, XX
; that he is the President of 5 MILE POINT INDUSTRIAL PARK, INC. the corporation
described in, and which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation and that he signed his name thereto by like order.
______________________________
Notary Public
STATE OF NEW JERSEY :
: SS
COUNTY OF GLOUCESTER:
On this 28th day of August, 1985, before me duly sworn, WM. C.A. Xxxxxxxx,
Jr., did depose and say that he resides at 000 Xxxxxx Xxxx, Xxxxxxxxxx X.X.
00000; that he is the President of MAMCO MILLWORKS OF NEW YORK, INC., the
corporation described in, and which executed the above instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation and that he signed his name thereto by like order.
_______________________________
Notary Public
