LEASE
EXHIBIT
10.04
Great
Barrington
00
Xxxxx
Xxxxxx
This
lease, dated as of September 10, 2007, (“Lease”) is by and between S&A
Supply, Inc., a Massachusetts corporation (“Landlord”)
and S&A Purchasing Corp., a New York corporation
(“Tenant”).
TERMS
For
good
and valuable consideration received by each party from the other, the parties
covenant and agree as follows:
1.
PREMISES
(a) Landlord’s
Authority. Landlord represents and warrants that it is the sole owner
of the land, buildings and equipment described on Schedule A attached hereto,
together with all buildings, improvements, facilities and fixtures located
on
the land, and any easements, rights of access and other property rights
necessary to allow Tenant unobstructed use and occupancy of the foregoing (the
“Premises”). Landlord represents and warrants that it has full right
and authority to lease the Premises to Tenant and to otherwise enter into this
Lease on the terms and conditions set forth herein, and that the provisions
of
this Lease do not conflict with or violate the provisions of existing agreements
between the Landlord and third parties.
(b) Lease
of Premises. Landlord hereby leases the Premises to Tenant, and
Tenant hereby leases the Premises from Landlord. The Premises are
leased to Tenant together with all singular appurtenances, rights and privileges
in or otherwise pertaining thereto.
(c) Landlord’s
Access. Landlord and its authorized agents or representatives shall
have reasonable access to the Premises during Tenant’s normal business hours on
not less than four hours notice to Tenant. In the event of any
emergency giving rise to the threat of damage or injury to life or property,
Landlord may enter the Premises without notice.
2. TERM
(a) Lease
Commencement. The term of this Lease shall commence on
September 10, 2007 (the “Commencement Date”), or the date possession of the
Premises is delivered to Tenant in accordance with this Lease or any riders
attached hereto.
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(b) Initial
Term. The initial term of this Lease (the “Initial Term”) shall be 5
years, commencing on the Commencement Date. Hereinafter, “Term”
shall mean the Initial Term and any extension thereof.
(c) Extension
Term. Tenant shall have the option to extend the term of this Lease
for 3 periods of 5 years each (each such period defined as a “Renewal Period”),
on the same terms and conditions (except for Annual Fixed
Rental, which shall be subject to adjustment as provided on Schedule
“B” annexed hereto) as herein contained. Tenant may exercise each of the 5 year
option periods by giving written notice to Landlord not less than 180 days
prior
to the expiration date of the Initial Term or the Renewal Term, as the case
may
be.
3. RENT
(a) Rent.
Tenant shall pay Landlord the Annual Fixed Rental as set forth on Schedule
B
annexed hereto, in equal monthly installments, on the first day of each and
every calendar month, beginning October 1, 2007, until the expiration of the
term of this Lease and any Renewal Term. The Annual Fixed Rental plus any
additional rent due under this lease is hereinafter sometimes referred to as
“Rent”. Rent for partial months at the beginning and end of the Term
shall be apportioned based on the number of days in such partial
months.
(b) The
initial payment of rent shall be made by Tenant on the date of possession of
the
Premises anticipated to be on or about September 10, 2007. Said
payment shall be for a prorated share of the monthly amount described
herein.
(c) Late
Rent. The Annual Fixed Rental payments are due on the first day of
the month and shall be considered late if received after the tenth day of the
month. In the event that Tenant fails to make the Annual Fixed Rental
payment on or before the fifteenth day of the month, Tenant shall pay a late
charge in the amount of 5% of the amount due.
4. TAXES
AND ASSESSMENTS
(a) Payment
of Taxes by Tenant. As additional rent, Tenant shall pay all real
estate taxes, personal property taxes, transaction, privilege, excise or sales
taxes, special improvement and other assessments (ordinary and extraordinary),
and all other taxes, duties, charges, fees and payments imposed by any
governmental or public authority which shall be imposed, assessed or levied
upon, or arising in connection with the ownership, use, occupancy or possession
of the Premises or any part thereof during the Term (all of which are herein
called “Taxes”). Tenant shall deliver to Landlord evidence of timely
payment of Taxes. Taxes for the tax year in which the term shall
commence or expire shall be apportioned according to the number of days during
which each party shall be in possession during such tax year.
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(b) Tax
Protest. Tenant may contest any Taxes by appropriate proceedings
conducted at Tenant’s expense in Tenant’s name or, if required by law, in
Landlord’s name. Landlord shall cooperate with Tenant and execute any
documents or pleadings reasonably required for such purpose, but Landlord shall
not be obligated to incur any expense or liability in connection with such
contest. Tenant may defer payment of the contested Taxes pending the
outcome of such contest, if such deferment does not subject Landlord’s interest
in the Premises to forfeiture. Tenant shall deposit with Landlord, if
Landlord so requests, an amount of money at least equal to the payment so
deferred plus estimated penalties and interest. Upon notice to
Tenant, Landlord may pay such contested Taxes from such deposit if necessary
to
protect Landlord’s interest in the Premises from immediate sale or
loss. When all contested Taxes have been paid or canceled, all moneys
so deposited to secure the same and not applied to the payment thereof shall
be
repaid to Tenant without interest. In lieu of any such deposit, at
its election Tenant may furnish a bond in a form, in an amount, and with a
surety reasonably satisfactory to Landlord. All refunds of Taxes
shall be the property of Tenant to the extent they are refunds of or on account
of payments made by Tenant.
5. SERVICES
AND UTILITIES
(a) Contractual
Arrangements. Tenant shall make arrangements for delivery to the
Premises of any gas, electrical power, water, sewer, telephone and other utility
services and any cleaning, trash and snow removal and maintenance services
as
Tenant deems necessary or desirable for its operations during the
Term. Landlord represents that the foregoing services and utilities
are installed or readily available at the Premises without any material
installation costs to Tenant.
(b) Payment
of Charges. Tenant shall promptly pay all charges for utility and
other services contracted by Tenant to be delivered to or used upon the Premises
during the Term and shall be responsible for providing such security deposits,
bonds or assurances as may be necessary to procure such services.
(c) Transition. Landlord
and Tenant shall each reasonably assist the other in transition of payments
for,
and control of, services and utilities at the commencement and termination
of
this Lease.
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6. MAINTENANCE
AND REPAIR
(a) Present
Condition. Prior to the commencement of the Term, Landlord
shall put the building systems, including, without limitation, plumbing and
electrical lines and equipment, heating, ventilation and air conditioning
systems, boilers, and elevators, if any, in good repair and
condition. Landlord represents, warrants and covenants that at the
Commencement Date such systems will be in good mechanical and operating
condition. Subject to the preceding sentences of this paragraph,
Tenant accepts the Premises in their present condition. Landlord
represents and warrants that it has no knowledge of any conditions which have
existed or presently exist which could materially adversely affect Tenant’s
business or contemplated use of the Premises.
(b) Maintenance
Obligations. After the commencement of the Term, Tenant shall
promptly make or cause to be made all non-structural and mechanical repairs
needed to maintain the Premises in its present condition, subject to reasonable
wear and tear. Landlord shall promptly make or cause to be made all
structural and mechanical repairs and replacements necessary to so maintain
the
Premises, which shall include keeping the roof and Premises free of leaks,
repairs to the plumbing and drainage systems, electrical systems, and the
exterior and interior structural elements of the building (including, without
limitation, the roof, exterior and bearing walls of the building, support beams,
foundations, columns and lateral supports).
7. USE;
COMPLIANCE WITH LAWS
(a) Permitted
Uses. Tenant may use and occupy the Premises for all lawful uses or
purposes.
(b) Compliance
with Laws. Landlord represents and warrants that Tenant’s intended
use of the Premises for heating and plumbing supply business and an electrical
wholesale business, and for offices and other related uses in connection with
Tenant’s distribution business is a lawful use of the Premises, and that no
further governmental consents, approvals or permits are necessary for such
use. Landlord further represents and warrants that the Premises are
in compliance with all applicable laws, including the Americans With
Disabilities Act. If the foregoing representations are untrue, then,
in addition to all of Tenant’s other rights hereunder or at law or in equity,
Landlord shall reimburse Tenant for, and shall indemnify and hold Tenant and
any
Tenant Indemnitees harmless from and against, any and all damages, injuries,
fines, losses or claims, and all costs and expenses, including reasonable
attorneys fees, incurred by or asserted against Tenant as a result of or arising
out of such representation being untrue, including any costs or expenses
associated with obtaining any necessary consents, approvals or
permits.
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8. ALTERATIONS
Tenant
may, without obtaining Landlord’s prior consent or approval, make temporary
alterations, improvements and additions (“Alterations”) to the Premises that do
not permanently affect the Premises. Tenant may make other
non-temporary Alterations to the Premises (by way of example but not limitation,
the installation of drywall partitioning, doorways, and lifts) with Landlord’s
prior consent or approval, which consent or approval shall not be unreasonably
withheld, conditioned or denied; notwithstanding the foregoing, if the cost
of
such non-temporary Alterations is less than $20,000, Landlord’s prior consent
shall not be required. All Alterations made by Tenant shall be made
at Tenant’s sole cost and expense, including all costs and expenses incurred in
obtaining any required governmental consents, permits or
approvals. Tenant may perform all Alterations with contractors and
subcontractors of Tenant’s own choosing. Landlord will cooperate with
Tenant’s efforts to obtain any governmental permits or approvals or consents
required therefor. Landlord shall not be entitled to impose upon Tenant any
charges or fees of any kind in connection with any Alterations.
9. SIGNAGE
Tenant,
at its expense and subject to its obtaining any required governmental permits
and approvals, may place, maintain, repair and replace signage on the Premises,
which may include any such trade name(s) or corporate affiliations as Tenant
chooses. Landlord shall cooperate with Tenant’s efforts to obtain any
permit, approval or consent necessary or desirable in connection with the
installation of any sign.
10. TENANT’S
PROPERTY
For
purposes of this Lease, the Term “Tenant’s Property” shall mean all office
furniture and equipment, movable partitions, communications equipment,
inventory, and other articles of movable personal property owned or leased
by
Tenant and located in the Premises. All Tenant’s Property shall be
and remain the property of Tenant throughout the Term of this Lease and may
be
removed by Tenant at any time during the Term. Upon the expiration of
this Lease, or within 30 days after the sooner termination hereof, Tenant shall
remove all Tenant’s Property from the Premises without leaving any noticeable
damage to the Premises. If Tenant leaves noticeable damage as a
result of Tenant’s removal of Tenant’s Property, Landlord shall give Tenant 15
days written notice to remove or repair such damage, after which time, Landlord
may repair such damage and Tenant shall reimburse Landlord for all costs and
expenses reasonably incurred by Landlord in repairing such
damage.
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11. QUIET
ENJOYMENT
Landlord
covenants that Tenant shall and may, at all times during the Term, peaceably
and
quietly have, hold, occupy, and enjoy the Premises.
12. LIENS
AND MORTGAGES
(a)
Tenant’s Liens. Tenant shall not (i) by any failure to act or by any
act, other than the mere hiring of a material or service provider, allow any
materialman’s or mechanic’s liens, or (ii) by any act or failure to act allow
any other liens, deeds of trust, mortgages, or other encumbrances, to be placed
on the whole or any portion of the Premises during the term of this
Lease.
(b) Non-Disturbance.
Landlord may place or leave in place a mortgage on the Premises, but only if
Landlord shall have obtained from its mortgagee a written agreement with Tenant,
in form and substance satisfactory to Tenant’s legal counsel, which
agreement (including any extensions, modifications, renewals, consolidations,
and replacements thereof) shall be binding on their respective successors and
assigns and which provides that so long as Tenant shall not be in default in
payment of Rent: (a) Tenant shall not be joined as a defendant in any proceeding
which may be instituted to foreclose or enforce the mortgage; (b) Tenant’s
possession and use of the premises in accordance with the provisions of this
Lease shall not be affected or disturbed by reason of the subordination of
this
Lease to, or any modification of or default, under the mortgage; and (c) the
mortgagee will subordinate and subject its respective rights, if any, to any
portion of the insurance proceeds otherwise payable to Landlord when and to
the
extent necessary for Landlord to comply with its obligations of repair and
restoration hereunder.
13. INSURANCE
(a) Building
Insurance. Throughout the Term, Landlord shall keep the buildings and
improvements included in the Premises insured for the “full replacement value”
thereof against loss or damage by perils customarily included under standard
“all-risk” policies.
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(b) Tenant’s
Liability Insurance. Throughout the Term, Tenant shall maintain commercial
general liability insurance, including a contractual liability endorsement,
and
personal injury liability coverage in respect of the Premises and the conduct
or
operation of business therein, with Landlord as an additional insured, with
limits of not less than $3,000,000 combined single limit for bodily injury
and
property damage liability in any one occurrence. Each such policy of
insurance shall provide that the same will not be canceled without at least
30
days prior written notice to Landlord. On written request by Landlord, Tenant
shall deliver to Landlord certificates of insurance, showing that the insurance
required to be maintained pursuant to the foregoing provisions of this Section
13(b) is in force and will not be modified or canceled without 30 days prior
written notice being furnished to Landlord. Thereafter, not less than 30 days
prior to the expiration or termination of each such policy, Tenant shall furnish
to Landlord certificates showing renewal of, or substitution for, policies
which
expire or are terminated. The insurance to be maintained by Tenant
pursuant to this Section 13(b) may be effected either by blanket or umbrella
policies.
(c) Waiver
of Subrogation. A party shall have no claim against the other or the
employees, officers, directors, managers, agents, shareholders, partners or
other owners of the other for any loss, damage or injury which is covered by
insurance carried by such party and for which recovery from such insurer is
made, notwithstanding the negligence of either party in causing the
loss. The foregoing waiver and release shall not apply, however, to
any damage caused by intentionally wrongful actions or omissions. Each party
represents that its current insurance policies allow such
waiver. Neither Landlord nor Tenant shall obtain or accept any
insurance policy which would be invalidated by or which would conflict with
this
paragraph.
14. INDEMNIFICATION
Except
as
may otherwise be provided in this Lease, Tenant shall indemnify and hold
harmless Landlord, its employees, officers, directors, managers, agents,
shareholders, partners or other owners from and against any and all third-party
claims arising from or in connection with: (i) the conduct or management of
the
Premises or of any business thereon, or any condition created in or about the
Premises during the term of this Lease, unless created by Landlord or any person
or entity acting at the instance of Landlord; (ii) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its or their
employees, officers, directors, managers, agents, shareholders, partners or
other owners, invitees or contractors; (iii) any accident or injury or damage
whatever, not caused by Landlord or any person or entity acting at the instance
of the Landlord occurring in, at or upon the Premises. Tenant shall
have the right to assume the defense of any such third-party claim with counsel
chosen by Tenant or by Tenant’s insurance company. Tenant shall not
be responsible for the fees of any separate counsel employed by the
Landlord.
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15. OPTIONS
TO PURCHASE
Right
of
First Refusal. Should Landlord during the Term enter into an
agreement to sell the Premises, or any portion thereof, (“Sales Agreement”)
Landlord shall provide to Tenant a written notice of intent to sell (“Notice”)
with a copy of the Sales Agreement. Tenant shall have and may
exercise an option to acquire the Premises, or the portion thereof subject
to
the Sales Agreement, on the same terms and conditions, other than as to the
identity of the purchaser and date for closing, as are set forth in the Sales
Agreement. If Tenant does not within 30 days after receiving the
Notice and copy of the Sales Agreement give Landlord written notice of Tenant’s
intention to exercise such option, then subject to and as provided by the Sales
Agreement Landlord may sell the Premises or portion thereof covered by the
Sales
Agreement by no later than the 150th day after receipt by Tenant of the Notice
and copy of the Sales Agreement. If Landlord does not timely so sell
the Premises or varies the terms of the Sales Agreement, Landlord shall again
comply with the terms of this Section 15 as if no Notice had ever been
given. If Tenant timely notifies Landlord of its intent to exercise
such option, then at such time as Tenant may specify, but no later than 90
days
following receipt by Landlord of such notice from Tenant, and at such place
within the city or town where the Premises is located as Tenant may specify,
or
such other place and time and Landlord and Tenant may agree, Tenant shall
exercise its option by purchasing, and Landlord shall sell to Tenant, the
Premises or portion thereof subject to the Sales Agreement.
16.
ENVIRONMENTAL MATTERS
(a) Definitions.
“Environment”
means soil, surface waters, groundwater, land, stream sediments, surface or
subsurface strata and ambient air.
“Environmental
Condition” means any condition with respect to the Environment on or off the
Premises, whether or not yet discovered, which could or does result in any
Environmental Damages, including, without limitation, any condition resulting
from the operation of any business that is or was conducted on the Premises
by
Landlord or Landlord’s predecessors, lessees, sublessees or occupants of the
Premises other than Tenant, or on the property of any other property owner
or
operator in the vicinity of the Premises, or which could or does result from
any
activity or operation conducted by any person or entity on or off the
Premises.
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“Environmental
Damages” means all claims, judgments, damages ( including punitive and
consequential damages), losses, penalties, fines, liabilities (including strict
liability), encumbrances, liens, costs and expenses of investigation and defense
of any claim, whether or not such claim is ultimately defeated, and of any
settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, and the costs and expenses of remediation, any of which
are incurred at any time as a result of (i) the existence of an Environmental
Condition on, about or beneath the Premises or migrating to or from the
Premises, (ii) the Release or Threat of Release of Hazardous Substances into
the
Environment from the Premises or (iii) the violation or threatened violation
of
any Environmental Law with respect to the Premises, regardless of whether the
existence of such Hazardous Substances or the violation or threatened violation
of such Environmental Law arose prior to, on or after the Commencement Date,
and
including without limitation:
(i) damages
for personal injury, disease or death or injury to property or the Environment
occurring on or off the Premises, including lost profits, consequential damages,
and the cost of demolition and rebuilding of any improvements;
(ii) diminution
in the value of the Premises, and damages for the loss or of restriction on
the
use of the Premises;
(iii) fees
incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with investigation,
cleanup and remediation, including the preparation of any feasibility studies
or
reports and the performance of any cleanup, remedial, removal, abatement,
containment, closure, restoration or monitoring work; and
(iv) liability
to any person or entity to indemnify such person or entity for costs expended
in
connection with the items referred to in this paragraph.
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“Environmental
Laws” means all laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof) concerning pollution
or protection of the environment, public health and safety, or employee health
and safety, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials, substances or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials, substances or wastes, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. §9601 et. seq. (“CERCLA”); the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. §1801 et. seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et. seq.; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. §1251 et. seq.; The Clean Air
Act, 42 U.S.C. §7404 et. seq., the Occupational Safety and Health Act of 1970,
each as amended, and any comparable law of the state in which the Premises
is
located;
“Hazardous
Substance” means any (i) substance, gas, material or chemical which poses or may
pose a hazard to human health or safety, (ii) toxic substance or hazardous
waste, substance or related material, or any pollutant or contaminant, (iii)
asbestos, urea formaldehyde foam insulation, petroleum and petroleum
by-products, polychlorinated dibenzo-p-dioxins, polychlorinated dibenzofurans
or
polychlorinated biphenyls which, in each case, is now or hereafter subject
to
Environmental Law or (iv) and any other substances defined as "hazardous
wastes", "hazardous substances", "toxic substances", "pollutants",
"contaminants", or other similar designations, or any other material, the
removal, storage or presence of which is regulated or required and/or the
maintenance of which is regulated or penalized by Massachusetts General Laws
Chapter 21E; The Massachusetts Contingency Plan, 310 CMR 40.00 et seq.; the
Resources Conservation Recovery Act, 42 U.S.C. 6901, et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et
seq.;
the Toxic Substances Control Act, 15 U.S.C. 2601, et seq.; the Clean Water
Act,
33 U.S.C. 1251, et seq.; the Safe Drinking Water Act, 42 U.S.C. 300(f)-300(j)
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statutes, as well as any permits or licenses issued under such statutes and
rules or any other local, state or federal agency, authority or governmental
unit.
“Release”
means any spilling, leaking, pumping, pouring, emitting, discharging, injecting,
escaping, leaching, dumping, disposing, or other entering into the Environment
of any Hazardous Substance, whether known or unknown, intentional or
unintentional.
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“Threat
of Release” means a substantial likelihood of a Release which requires action to
prevent or mitigate damage to the Environment which may result from such Release
and which is required under the Environmental laws.
(b) Representations
and Warranties. Landlord represents and warrants to Tenant that,
unless otherwise disclosed on Schedule C:
(i) Landlord
has no material documents in its possession concerning any Environmental
Condition, and Landlord is not aware of any material information relating to
any
Environmental Condition of the Premises.
(iii) During
Landlord’s ownership of the Premises:
(A)
Landlord has not installed any above ground or underground tanks for storage
of
Hazardous Substances (“Storage Tanks”) at the Premises, nor were any Storage
Tanks located at the Premises prior to the time Landlord acquired ownership
of
the Premises. The Premises do not presently contain and never have
contained and are presently free from any underground tanks or pipes ancillary
to underground or above-ground tanks (collectively "Tanks"), on the Property,
except as disclosed on Schedule C hereto. To the extend there are any
Tanks disclosed on Schedule C, such Tanks shall have been properly removed
or
shall have been legally and property de-commissioned and abandoned and Landlord
shall provide written verification of such proper removal or de-commissioning
and abandonment within 10 days prior to the Commencement Date.
(B) It
has not received any notice of any private, administrative or judicial action,
or notice of any intended private, administrative or judicial action, relating
to the presence or alleged presence of Hazardous Substances in, under or upon
the Premises, or that may have migrated from the Premises and there is no basis
for any such notice or action. There are no pending, or to Landlord’s
knowledge, threatened, actions or proceedings (or notices of potential actions
or proceedings) from any governmental agency or any other entity regarding
any
matter relating to any Environmental Laws.
(C) Landlord
has not notified or been made aware of any notice to any environmental agency
of
a Release at the Premises.
(D) Landlord
has not disposed of any Hazardous Substances at the Premises or sent,
transported, caused the transportation of or disposed of any waste materials
that are not Hazardous Substances, at the Premises.
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(E) Landlord,
during its ownership and operation of the Premises, has disposed of all wastes
it generated from operations conducted at the Premises in compliance with
applicable laws and only at off-Premises facilities reasonably believed by
Landlord to have necessary permits and approvals.
(F) Landlord
has during its ownership and operation of the Premises maintained or kept all
records required by law to be maintained or kept relating to the generation,
storage, treatment, release and/or disposal of Hazardous
Substances.
(G) Landlord
has no knowledge of any Release at the Premises.
(c) Environmental
Indemnities. Landlord shall indemnify and hold harmless Tenant and
any Tenant Indemnitees against any and all Environmental Damages. Tenant shall
indemnify Landlord against any loss, cost, damage, claim or expense to Landlord
arising out of or related to the presence, use, handling, discharge, release
or
disposal of Hazardous Substances on, in, under, to or from the Premises
introduced by Tenant onto the Premises, provided that Landlord shall have the
burden of proving that any such loss, cost, damage, claim or expense arose
on
account of Hazardous Substances introduced by Tenant onto the
Premises.
17. DAMAGE
AND DESTRUCTION
In
case
of damage to or destruction of the Premises or any part thereof by any cause
whatever, if Tenant cannot continue the operation of its business in the same
manner as prior to such damage or destruction, Tenant by a written notice to
Landlord may terminate this Lease unless Landlord, within 20 days following
such
damage or destruction, has agreed to reconstruct the
Premises. Following such damage or destruction and unless and until
the termination of this Lease, this Lease shall remain in full force and effect
and Tenant shall continue the operation of its business at the Premises if
and
to the extent the Tenant determines, in Tenant’s good faith judgment, that it is
reasonably practical to do so. If Landlord agrees to reconstruct the
Premises and Tenant does not terminate the Lease on account of such damage
or
destruction as aforesaid (a) Landlord shall xxxxx and forgive Rent payments
which become due from the time of such damage or destruction through the course
of the reconstruction to reflect the extent to which Tenant does not conduct
its
business operation at the Premises, (b) the lease term shall continue and the
parties shall continue to be bound by this Agreement, and (c) Landlord shall
commence such reconstruction as soon as possible and diligently prosecute such
reconstruction through completion. Notwithstanding the foregoing, if
Tenant does not elect to terminate, Tenant shall have the right to require
Landlord to reconstruct the Premises, in which event the provisions of “(a), (b)
and (c) of the preceding sentence shall apply and the building insurance
proceeds shall be held for such purpose.
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18.
CONDEMNATION
(a) Notice. Landlord
and Tenant shall each notify the other if it becomes aware that there will
or
might occur a taking of any portion of the Premises by condemnation proceedings
or by exercise of any right of eminent domain (each, a “Taking”).
(b) Termination
of Lease. In the event of the Taking of the entire Premises, this
Lease shall terminate as of the date of such Taking. If there occurs
a Taking of a portion of the Premises such that the remainder of the Premises
shall not, in Tenant’s reasonable opinion, be adequate and suitable for the
conduct of Tenant’s business as conducted prior to such Taking, then Tenant may,
at its option, terminate this Lease.
(c) Continuation
of Lease. If there is a Taking of a portion of the Premises and this
Lease is not terminated pursuant to Section 18(b) hereof, then this Lease shall
remain in full force and effect, except that appropriate adjustments shall
be
made to, and in respect of, the Premises and Rent, and Landlord shall proceed
with due diligence to perform any work necessary to restore the remaining
portions of the Premises to the condition that they were in immediately prior
to
the Taking, or as near thereto as possible.
(d) Condemnation
Award. Any award resulting from any Taking of the Premises for the
value of Tenant’s leasehold prior to the Taking, or Tenant’s personal property,
fixtures, relocation costs or loss of goodwill shall be the property of
Tenant. All of any award resulting from any such Taking not
specifically reserved to Tenant shall be the property of Landlord.
19. DEFAULT
BY LANDLORD
Notwithstanding
any other provision of this Lease, if the Landlord by any act or omission in
breach or default of this Lease renders the Premises or any portion thereof
untenantable or unfit for Tenant’s business operations, then (a) if such
untenantability or unfitness continues for a period of five consecutive days
after Tenant notifies Landlord in writing thereof, all Rent shall xxxxx for
the
period that the Premises remain untenantable or unfit to the extent that the
Premises have been rendered untenantable or unfit; and (b) if such
untenantability or unfitness continues for a period of 30 consecutive days
after
Tenant notifies Landlord in writing thereof, Tenant may (i) terminate this
Lease
at any time thereafter by delivering written notice to Landlord thereof, or
(ii)
cure same and deduct the cost from Rent.
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13
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20. DEFAULT
BY TENANT
It
shall
constitute an Event of Default if Tenant shall fail to perform or comply with
any term of this Lease, including the payment of Rent, and such failure shall in
the case of a default in the payment of rent continue for a period of 10 days
(30 days for all other defaults) after Tenant’s receipt of written notice
thereof from Landlord specifying such failure and requiring it to be remedied;
provided, however, that if any such failure, other than the failure to pay
Rent,
cannot with due diligence be remedied by Tenant within a period of 30 days,
if
Tenant commences to remedy such failure within such 30 day period and thereafter
prosecutes such remedy with reasonable diligence, the period of time for remedy
of such failure shall be extended so long as Tenant prosecutes such remedy
with
reasonable diligence. Following the occurrence of any Event of Default, Landlord
may terminate this Lease and have immediate possession of the Premises, in
addition to any other remedies allowed by law.
21. SURRENDER;
HOLDOVER
At
the
end of the Term or upon termination of this Lease, whichever first occurs,
Tenant shall quit and surrender possession of the Premises to Landlord vacant
and broom clean. If Tenant remains in possession of the Premises
after the end of the Term, then Tenant shall be deemed to be a tenant from
month
to month only, under all of the same terms and conditions of this Lease then
in
effect, except as to the duration of the Term.
22. BROKERAGE
Landlord
and Tenant each represents and warrants to the other that it had no
conversations or negotiations with any broker or finder concerning the
consummation of this Lease. Landlord and Tenant shall each indemnify and hold
harmless the other from and against any claims for brokerage commissions or
finder’s fees (together all related expenses, including, without limitation,
reasonable attorneys’ fees) resulting from or arising out of any conversations
or negotiations had by it with, or any agreement between it and, any broker
or
finder in connection with this Lease, other than a broker identified
above. In the event there is a broker, Landlord shall pay all
brokerage commissions.
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14
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23. ASSIGNMENT
AND SUBLETTING
Except
as
set forth herein, Tenant shall not assign this Lease without the Landlord’s
prior written consent, which consent, however, shall not be unreasonably
withheld nor delayed. Notwithstanding the foregoing, Tenant may,
without the Landlord’s consent: (a) sublet not more than 50% of the Premises;
(b) assign or sublet this Lease to any entity or affiliate more than 50% owned
or controlled by Tenant, to any entity which owns or controls more than a 50%
interest in Tenant or to any entity under common control with
Tenant. A merger or consolidation to which Tenant or any successor to
Tenant is party shall not constitute an assignment requiring consent of
Landlord.
24. MISCELLANEOUS
(a) Governing
Law. This Lease shall be governed by and construed in accordance with
the laws of the State in which the Premises is located.
(b)
Certain Definitions.
“Including”
means including without limitation.
“Tenant
Indemnitee” means any corporation, individual or other entity (a) of which
Tenant is a direct or indirect subsidiary of any tier, or that directly or
indirectly controls Tenant, (b) that is a direct or indirect subsidiary of
any
tier of Tenant, or (c) that is under direct or indirect common control with
Tenant.
(c)
Indemnification Matters Involving Third Parties. With respect to the
obligation of either party to indemnify pursuant to this Lease:
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(1)
|
If
any claim or demand for which an Indemnifying Party would be liable
to an
Indemnified Party is asserted against or sought to be collected from
the
Indemnified Party by a third party, Indemnified Party shall with
reasonable promptness notify in writing the Indemnifying Party of
such
claim or demand stating with reasonable specificity the circumstances
of
the Indemnified Party’s claim for indemnification; provided, however, that
any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying
Party are actually prejudiced. After receipt by the
Indemnifying Party of such notice, then upon reasonable notice from
the
Indemnifying Party to the Indemnified Party, or upon the request
of the
Indemnified Party, the Indemnifying Party shall defend, manage and
conduct
any proceedings, negotiations or communications involving any claimant
whose claim is the subject of the Indemnified Party’s notice to the
Indemnifying Party as set forth above, and shall take all actions
necessary, including, but not limited to, the posting of such bond
or
other security as may be required by any governmental authority,
so as to
enable the claim to be defended against or resolved without expense
or
other action by the Indemnified Party. Upon request of the
Indemnifying Party, the Indemnified Party shall, to the extent it
may
legally do so and to the extent that it is compensated in advance
by the
Indemnifying Party for any costs and expenses thereby
incurred,
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15
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(a)
|
take
such action as the Indemnifying Party may reasonably request in connection
with such action,
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(b)
|
allow
the Indemnifying Party to dispute such action in the name of the
Indemnified Party and to conduct a defense to such action on behalf
of the
Indemnified Party, and
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(c)
|
render
to the Indemnifying Party all such assistance as the Indemnifying
Party
may reasonably request in connection with such dispute and
defense.
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(2)
|
In
any action or proceeding, the Indemnified Party shall have the right
to
retain its own counsel, but, in the event the Landlord is the Indemnified
Party, Landlord shall have the right to retain only one counsel on
behalf
of all the Landlord; but the fees and expenses of such counsel shall
be at
its own expense unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel
or (ii)
the named parties to any suit, action or proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of all parties by the same counsel would
be
inappropriate due to actual or potential conflict of interests between
them.
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(3)
|
An
Indemnifying Party shall not be liable under this lease for any settlement
effected without its consent of any claim, litigation or proceeding
in
respect of which indemnity may be sought
hereunder.
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(4)
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The
Indemnifying Party may settle any claim without the consent of the
Indemnified Party, but only if the sole relief awarded is monetary
damages
that are paid in full by the Indemnifying Party. The Indemnified
Party
shall, subject to its reasonable business needs, use reasonable efforts
to
minimize the indemnification sought from the Indemnifying Party under
this
Agreement.
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16
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(d) Consents
and Approvals. If, pursuant to any provision of this Lease, the
consent or approval of either party is required to be obtained by the other
party, then, unless otherwise provided herein, the party whose consent or
approval is required shall not unreasonably withhold, condition or delay such
consent or approval.
(e) Rights
and Remedies. All rights and remedies of either party expressly set
forth herein are intended to be cumulative and not in limitation of any other
right or remedy set forth herein or otherwise available to such party at law
or
in equity. Notwithstanding the foregoing, in no event shall either
party be liable to the other for consequential or punitive damages, except
as
otherwise provided in this Lease.
(f) No
Waiver. The failure of either party to seek redress for a breach of,
or to insist upon the strict performance of any covenant or condition of this
Lease, shall not prevent a subsequent act which would have originally
constituted a breach from having all the force and effect of an original
breach. The receipt by Landlord of Rent with knowledge of the breach
of any covenant of this Lease by Tenant shall not be deemed a waiver of such
breach and no provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing and signed by Landlord. The
payment by Tenant of Rent with knowledge of the breach of any covenant of this
Lease by Landlord shall not be deemed a waiver of such breach and no provision
of this Lease shall be deemed to have been waived by Tenant unless such waiver
is in writing and signed by Tenant.
(g) Successors
and Assigns. Each and all of the terms and agreements herein
contained shall be binding upon and inure to the benefit of the parties hereto,
and their heirs, legal representatives, successors and assigns. Any
sale or transfer of the Premises by Landlord during the term of this Lease
shall
be made by an instrument that expressly refers to this Lease as a burden upon
the Premises.
(h) Recording. Tenant
may record this Lease, a short form thereof, or a memorandum
thereof. Landlord will cooperate with Tenant in the execution and
delivery of such documents (including a memorandum or short form of this lease
or comparable documents) as may be required to effectuate the foregoing in
accordance with the requirements, customs and practices governing such
recordation.
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17
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(i)
Notices. All notices required hereunder shall be in writing and shall
be effective when delivered to the address set forth below (or to such other
addresses as either party may subsequently designate).
TENANT:
S&A
Purchasing Corp.
c/o
Universal Supply Group, Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Xx.
Xxxxxxx Xxxxxx
LANDLORD:
S&A
Supply, Inc.
x/x
Xxxxx
Xxxx
0
Xxxxxxxx Xxxxxx
Gr.
Xxxxxxxxxx, XX 00000
(j) Entire
Agreement; Modifications. This Lease contains the entire agreement
between the parties concerning the matters set forth herein and may not be
modified orally or in any manner other than by an agreement in writing signed
by
all the parties hereto or their respective successors in
interest. Notwithstanding the foregoing, Tenant’s remedies hereunder
and under the Stock Acquisition Agreement shall be cumulative and not
exclusive.
(k) Joint
and Several Obligations. If Landlord includes more than one person or
entity, the obligations shall be joint and several of all such persons and
entities.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the
day
and year first above written.
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LANDLORD:
|
TENANT:
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S&A
SUPPLY, INC.
|
S&A
PURCHASING CORP.
|
|
By:
/s/ Xxxxx Xxxx
|
By:
/s/ Xxxxxxx Xxxxxx
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Xxxxx Xxxx, President
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Xxxxxxx Xxxxxx, President
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18
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Great
Barrington
00
Xxxxx
Xxxxxx
Schedule
A
DESCRIPTION
OF PREMISES
The
following described land in Berkshire County, State of Massachusetts, commonly
referred to as 00 Xxxxx Xxxxxx, together with all buildings thereon and
appurtenances thereto:
Consisting
of approximately 33,580 square feet located at 00 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx, as further described in Schedule A-1 annexed
hereto.
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19
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Great
Barrington
00
Xxxxx
Xxxxxx
Schedule
B
ADDITIONAL
PROVISIONS TO LEASE
Annual
Fixed Rent in Initial Term and Renewal Terms
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1.
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The
“Annual Fixed Rent” for the first year of the Initial Term shall be the
sum of eighty one thousand dollars ($81,000) per year, or six thousand
seven hundred fifty dollars ($6,750) per
month.
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2.
|
Every
year, starting with the second year, the Annual Fixed Rent shall
be
adjusted upward, but never decreased, pursuant to the provisions
hereof.
|
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3.
|
For
the purposes of this Schedule, the following terms have the following
meanings:
|
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“Index”
|
The
Consumer Price Index—All Urban Consumers for New York-Northern New
Jersey-Long Island, NY-NJ-CT-PA—All Items, published by the United States
Bureau of Labor, and any successor thereto (1982 – 1984 =
100)
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“Base
Month”
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September
2007
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“Comparison
Month”
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September
2008 and every September thereafter
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4.
|
The
Annual Fixed Rent for the second year of the Initial Term shall be
eighty
one thousand dollars ($81,000) per year, increased by the percentage
of
increase of the Index of the Comparison Month (September 2008 and
every
September thereafter) over the Base Month (September
2007).
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Example
Assume
that the Index for September 2008 shows a three percent (3%) increase over
the
Index for September 2007. The Annual Fixed Rent for the second year
is eighty three thousand four hundred thirty dollars ($83,430).
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5.
|
The
same procedure shall be followed every year throughout the Initial
Term
and the Renewal Terms, with the applicable percentage of increase
to be
multiplied times the Annual Fixed Rent for the year just
concluded.
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20
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6.
|
Because
the Index is not published until after the close of a month, the
adjustment in Annual Fixed Rent shall be made when the Comparison
Month’s
Index is published and Landlord presents to Tenant the comparison
figure
and computation of adjustment of Annual Fixed Rent; and any increase
for
months already lapsed since the end of the prior year shall be added
to
the next installment of Annual Fixed
Rent.
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7.
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In
the event that the Index is discontinued, the parties shall agree
upon an
equivalent and substituted Index to be applied in the same
manner.
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LANDLORD:
|
TENANT:
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|
S&A
SUPPLY, INC.
|
S&A
PURCHASING CORP.
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By:
/s/ Xxxxx Xxxx
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By:
/s/ Xxxxxxx Xxxxxx
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Xxxxx Xxxx, President
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Xxxxxxx Xxxxxx, President
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21
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Great
Barrington
20
Maple
Avenue
Schedule
C
Underground
Tanks or Pipes Ancillary to Underground or Above-Ground Tanks
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22
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This
Agreement, dated September 10, 2007 (the “Agreement”), is entered into by and
among S&A Supply, Inc. (“Landlord” or “S&A Supply”), S&A Purchasing
Corp. (“Tenant” or “S&A”), a New York corporation and Colonial Commercial
Corp. (“Colonial”), a New York corporation and the sole shareholder of
S&A.
Landlord
and Tenant entered into that certain lease agreement dated September 10, 2007
for the premises located at 00 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx
(the “Lease Agreement”) in connection with the purchase by S&A of the assets
set forth in that certain Asset Purchase Agreement dated by and among S&A,
S&A Supply and the other signatories thereto.
For
good
and valuable consideration received by each party from the other, the parties
covenant and agree as follows:
In
the
event Tenant fails to perform any of its obligations in accordance with the
terms of the Lease Agreement, Landlord shall provide Tenant written notice
(“Failure Notice”) specifying such failure and requiring such failure be
remedied in accordance with the terms of the Lease
Agreement. Colonial hereby agrees to perform such failed obligation
on behalf of the Tenant in the event Tenant shall have failed to remedy such
failure in accordance with the prior sentence and Landlord provides Colonial
with a written notice specifying the obligation that Tenant failed to cure
along
with a copy of the Failure Notice.
In
the
event Tenant contests any of the matters set forth in a Failure Notice, Tenant
and Landlord shall resolve such dispute exclusively by arbitration by the
American Arbitration Association in Great Barrington, Massachusetts.
Notwithstanding anything set forth in this Agreement, in the event a Failure
Notice is arbitrated in accordance with this subsection, Colonial’s obligations
under this Agreement shall be subject to the finding of Tenant’s failure to
perform by such arbitration.
(REST
OF
PAGE INTENTIONALLY LEFT BLANK)
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23
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LANDLORD:
|
TENANT:
|
COLONIAL:
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|
S&A
SUPPLY, INC.
|
S&A
PURCHASING CORP.
|
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By: /s/
Xxxxx Xxxx
|
By: /s/
Xxxxxxx Xxxxxx
|
By: /s/
Xxxxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxx
|
Name:
Xxxxxxx Xxxxxx
|
Name:
Xxxxxxx Xxxxxx
|
|
Title: President
|
Title: President
|
Title:
Chief Executive Officer
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24
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Great
Barrington
00
Xxxxx
Xxxxxx
Lease
Addendum
Number
1
Landlord
and Tenant agree that any environmental hazard, including but not limited to
contamination or hazardous waste, caused by or related to the disclosures in
the
environmental reports dated August 20, 2007 and September 7, 2007, attached
hereto, shall be the sole liability of the Landlord.
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LANDLORD:
|
TENANT:
|
COLONIAL:
|
|
S&A
SUPPLY, INC.
|
S&A
PURCHASING CORP.
|
|
|
By: /s/
Xxxxx Xxxx
|
By: /s/
Xxxxxxx Xxxxxx
|
By: /s/
Xxxxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxx
|
Name:
Xxxxxxx Xxxxxx
|
Name:
Xxxxxxx Xxxxxx
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Title: President
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Title: President
|
Title:
Chief Executive Officer
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25
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Xxxxxxx
X. Going & Associates, Inc.
ENVIRONMENTAL
SITE INVESTIGATION-REMEDIATION
00
Xxxxxx
Xxxxx
Xxxx
Xxxx, Xxx Xxxx 00000
Tel.
000-000-0000
Fax.
000-000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxx.xxx
August
20, 2007
Xx.
Xxxxxxx Xxxxxx, President
Universal
Supply Group Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
RE:
Summary of Findings for Phase I Environmental Site Assessment
Commercial
Property 20 and 00, Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx
Dear
Xx.
Xxxxxx:
At
your
request, Xxxxxxx X. Going & Associates, Inc. is conducting a Phase I ESA of
commercial property situated at 20 and 00, Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx,
Xxxxxxxxxxxxx. We have determined that there are “recognized environmental
conditions” onsite and that there should be some additional investigation
in order to determine whether or not these conditions have caused any
significant impact to subject property.
Specifically,
historical sources indicate that a 6,000 gal. underground fuel oil storage
tank
(UST) and a 2,000 gal. fuel oil UST were reportly closed in place in 1992
without any documentation of soil conditions before or after UST removal. We
also find one (1) 275 gal. aboveground fuel oil storage tank (AST) and one
(1)
330 gal. fuel oil AST in service at subject property (without any means of
secondary containment).
These
“recognized environmental conditions” represent potential environmental
liability until they have been thoroughly investigated. We recommend the
installation of strategic test pits and/or soil borings and subsequent soil
and/or groundwater analysis.
We
will
issue the complete Phase I ESA (with attachments) in about two weeks. Meanwhile,
if there are any technical questions for us, or if further elaboration is
required, please do not hesitate to contact us at (000) 000-0000. Thanks for
the
opportunity to be of service.
Sincerely,
/s/
Xxxxxxx X. Going
Xxxxxxx
X. Going, Principal
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26
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Xxxxxxx
X. Going & Associates, Inc.
ENVIRONMENTAL
SITE INVESTIGATION-REMEDIATION
00
Xxxxxx
Xxxxx
Xxxx
Xxxx, Xxx Xxxx 00000
Tel.
000-000-0000
Fax.
000-000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxx.xxx
September
7, 2007
Xx.
Xxxxxxx Xxxxxx, President
Universal
Supply Group Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
E-mail:
xxxxxxx@xxxxxx.xxx
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RE:
|
Phase
I Environmental Site Assessment: “S&A Supply Inc.”
20
& 00 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx,
Xxxxxxxxxxxxx
|
Dear
Xx.
Xxxxxx:
Xxxxxxx
X. Going & Associates, Inc. is pleased to submit this Phase I Environmental
Site Assessment of commercial properties situated at 20 and 00 Xxxxx Xxxxxx,
Xxxxx Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx. This assessment has been
conducted pursuant to ASTM E1527-05. The objective of this assessment was to
identify "recognized environmental conditions" associated with a range
of contaminants within the scope of Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) and petroleum products. The term
"recognized environmental conditions" means the presence or likely
presence of any hazardous substances or petroleum products on a property under
conditions that indicate an existing release, a past release, or a material
threat of a release into the structures on the property or into the ground,
groundwater, or surfacewater of the property. This assessment is not
intended to address de minimus conditions that generally do not
represent a material risk of harm to public health or the environment and
generally would not be the subject of enforcement action if brought to the
attention of appropriate regulatory agencies.
Included
in this letter report under the heading "Attachment A" are
topographic area map, neighborhood aerial photograph, municipal tax map,
photographs of the property, portion of assessor’s file, historical USGS
topographic area maps (1897, 1946, 1995), Xxxxxxx® Fire Insurance
Maps
(1923, 1947), historical aerial photographs (1942, 1952, 1970, 1987, 2006),
a
Massachusetts Department of Public Safety, Division of Fire Prevention tank
removal permit (1992), a city directory compiled by Environmental FirstSearch™
(August 2007), an Environmental Questionnaire completed by Xx. Xxxxx Xxxx
(August 2007), and an environmental database compiled by Environmental
FirstSearch™ (August 2007).
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27
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Phase
I Site Inspection
Subject
properties are located at 20 and 00 Xxxxx Xxxxxx, Xxxx of Great Barrington,
Berkshire County, Massachusetts [topographic map, tax map, and photos]. 00
Xxxxx
Xxxxxx [22.0-0-2], herein called Lot 2, is 1.63 acres in size, irregular in
shape, and generally level. Lot 2 is classified as commercial; more
specifically, retailplumbing supplies, in the Town of Great
Barrington Assessment Role. 00 Xxxxx Xxxxxx [22.0-0-6], herein called Lot 6,
is
0.36 acre in size, irregular in shape, and slopes gently northwest to southeast.
Lot 6 is classified as commercial; more specifically,
retailstore, plumbing fixtures, in the Town of Great
Barrington Assessment Role. No portion of subject is federal, state, or tribal
land.
Nearby
land use and improvements are residential and commercial along a mixed-use
corridor. Adjacent property includes: Xxx Birches Funeral Home to the north,
residential and commercial (Agway) to the south, residential and commercial
(former Condor Chevrolet, Dunkin Donuts, Strip Mall) to the east, and the
Housatonic Railroad tracks and residential property to the west. There does
not
appear to be any property directly upgradient of subject that would threaten
or
compromise the environment of subject. No "recognized environmental
conditions" were obvious on adjacent land; however, we observed deposits of
discarded bagged trash, used tires, scrap metal and wood, and two scrap auto
gasoline tanks on the Condor Chevrolet property.
Lot
2
is improved with four commercial buildings, which provide retail and storage
space for S&A Supply Inc. (plumbing/electrical wholesaler). We observed a
paved outdoor storage yard that contained piping, new 275 gal. fuel oil tanks
(for retail sale), and electrical wire. A paved driveway provides access from
Massachusetts Avenue to the storage yard and buildings. Lot 6 is improved
with one commercial building, which houses a plumbing fixture showroom for
S&A Supply Inc. A paved driveway provides access from Massachusetts Avenue
to a paved parking area.
Lot
2 contains the main commercial building and three supporting warehouses.
The
main building, herein called Building 1, is a 2-story wood frame
structure over slab and crawl space. This building is serviced by municipal
water and sewer systems and electric utilities, and is heated with fuel oil.
The
structure houses offices, racks of plumbing and electrical supplies, and sales
counter space for S&A Supply.
The
first
warehouse, herein called Building 2, is a 1-story “pole barn” style
building over concrete slab. This building is serviced by electric utilities
but
is not heated. This structure houses racks of plumbing supplies.
The
second warehouse, herein called Building 3, is a 1-story “pole barn”
style building over asphalt. This building [situated in the northeast
corner of
the site] is serviced by electric utilities but is not heated. This structure
houses racks of plumbing and electrical supplies.
The
third
warehouse, herein called Building 4, is a 1-story structure situated in
the southeast corner of the site. It can be described as a shed attached to
a
warehouse. The shed is a wood frame building over a concrete slab; the warehouse
is a pre-engineered metal building over a concrete slab. This structure is
serviced by electric utilities and is heated with fuel oil.
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28
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Solid
waste generated at the site is best characterized as commercial garbage,
including paper, cardboard, and wood packing material, all of which is removed
by Allied Waste Services. Based on the age of Building 1, it is possible that
painted surfaces contain lead-based paint and that the roofing materials contain
asbestos. Painted surfaces were in good condition and the roofing materials
were
non-friable.
Lot
6 contains a plumbing fixture showroom. The plumbing fixture showroom is
a
converted assemblage of 1 ½ -story residence, a 1-story garage and a connecting
addition. These structures are wood frame construction. The showroom is serviced
by municipal water and sewer systems and electric utilities, and is heated
with
fuel oil and/or natural gas.
We
observed three (3) aboveground fuel oil storage tanks (ASTs) onsite;
specifically, Building 1 is serviced by a 275 gal. AST, Building 4 is serviced
by a 330 gal. AST, and the showroom is serviced by a 275 gal. AST. There was
no
secondary containment associated with any of the ASTs. There were no noticeable
leaks or drips or stains in the vicinity of the ASTs.
We
observed small containers of adhesives, cleaners, sealers, and water treatments
packaged for retail sale, and there were no noticeable leaks from any of these
containers.
We
observed floor drains in the north section of Building 1. The owner reports
that
the north section is the original section of the building, which was
historically utilized for the storage and transportation of raw milk, and he
asserts that the drains are connected to the municipal sewer.
The
owner
(Xx. Xxxx) reports that there are no underground chemical storage tanks or
drywells or sumps or pits on the property, and we did not observe evidence
of
such. There is no current or historic evidence of generation, storage or
disposal of hazardous chemical waste onsite. There was no obvious sign of
significant chemical release to the site or to the local
environment.
Site
History and Other Relevant Information
We
examined the Town of Great Barrington Assessor’s records, Great Barrington
Building Department records, Great Barrington Health Department
records, historical USGS topographical area maps, historical Xxxxxxx® Fire Insurance
Maps, historical aerial photographs and historical city directories. We
interviewed the Building Inspector (Xxxxx X. May), the Fire Chief (Xxxxx
Xxxxxxxx), the Health Department Agent (Xxxx Xxxxxxxxx), and the owner of
S&A Supply and subject property (Xxxxx Xxxx). This work serves to establish
that Lot 2 was improved in 1930 with the construction of the north
section of Building 1. Prior to 1930, Lot 2 was apparently an unimproved lot.
Lot 6 was improved in 1850 with the construction of the majority of the
converted residence we see today. Prior to 1850, Lot 6 was apparently an
unimproved lot.
Municipal
records establish ownership of Lot 2 as follows: Xx. Xxxxxxx prior to
1924, Dairymen’s League Co-Operative Inc. in 1924, Dairylea Co-Operative Inc.
and Xxxxxxx X. Xxxxxx in 1972, and current owner S&A Supply Inc. in 1976.
Municipal records also indicate that Lot 2 was improved with the construction
of
the north section of Building 1 in 1920, the central section of Building 1
in
the mid 1970s, the warehouse portion of Building 4 in 1978, Building 3 in 1981,
Building 2 and the south section of Building 1 in 1989.
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Municipal
records establish ownership of Lot 6 as follows: Xxxxx X. Xxx Xxxxxx
prior to 1984, Xxxxxx X. Xxxxx in 1984, and current owner S&A Supply Inc. in
1995. Municipal records also indicate that the residence was remodeled in 1981.
The owner indicated that the showroom was renovated in May 2007.
The
1897
issue of the USGS area map depicts Lot 2 and north adjacent property as
unimproved land; Lot 6, south, and east adjacent property as residential, and
west adjacent property as a New York, New Hampshire & Hartford Railroad
(Berkshire Division). The 1946 issue of the USGS area map depicts the north
section of Building 1 on Lot 2, and Lot 6 and adjacent property as largely
unchanged.
Xxxxxxx®
Fire Insurance Maps
(1923 and 1947) were reviewed. The 1923 map presents Lot 2 and north adjacent
as
undeveloped, Lot 6 as residential with three auxiliary structures (i.e. garages
and or sheds), south adjacent property as “Colonial Inn”, west adjacent property
as “N.Y. N.H. & H. RR” (New York, New Hampshire & Hartford
Railroad), and east adjacent as residential. The 1947 map presents Lot 2 as
improved with three structures: a non-descript auxiliary building, a building
labeled “Grains” with occupant listed as “Eastern States Farmers Exchange”, and
the north section of Building 1 labeled “Dairy” with occupant listed as
“Dairymen’s League”. The 1947 map also presents Lot 6 as residential and
adjacent property as largely unchanged.
Historic
aerial photos (1942, 1952, 1970, 1986, and 2006) were also carefully reviewed.
Lot 2 featured one structure in 1942 and three structures in 1952. These aerials
also establish that Lot 6, south, and east adjacent properties were improved
(apparently residential), west adjacent property was a railroad right-of-way,
and north adjacent property was wooded and undeveloped. The 1970 aerial photo
was not clear or useful. The 1987 aerial establishes that Lot 2 was improved
with three structures (north and central sections of Xxxxxxxx 0, Xxxxxxxx 0,
and
warehouse section of Building 4) and that Lot 6 was unchanged. This photo
establishes that north adjacent property was improved with two structures,
south
adjacent property was improved with one structure that appears similar to the
present Agway building, east adjacent property was improved with one structure
that appears similar to the present auto dealership, and west adjacent property
as railroad right-of-way. The 2006 aerial depicts the addition of Building
2,
the shed portion of Building 4, and the south portion of Building 1 on Lot
2.
This aerial depicts Lot 6 and adjacent property as largely unchanged, except
for
another addition to the structure that appears similar to the present Agway
building.
Historic
site-specific city directories (1907, 1913-14, 1920-21, 1926-28, 1932-34, 1940
42, 1947-49, 1955-56, 1963-64, 1992, 1997, 2002, and 2007) compiled by
Environmental FirstSearch™ were also reviewed. These city directories provide a
property occupant/use list for subject and four addresses “up” and “down”
Massachusetts Avenue. The city directories indicate that Lot 2 (20 Maple Ave.)
was not listed from 1907 through 1992, but was occupied by S&A Supply Inc.
from 1992-2007. Xxx 0 (00 Xxxxx Xxx) was listed as vacant in 1907 and
residential from 1913-1992. Businesses along Maple Avenue included Central
Dairy
Co and Eastern States Farmers Exchange in the 1932; Dairyman’s League
Cooperative Association Inc. from 1940-1954; and Dairyman’s League Cooperative
Association Inc. Milk in 1963. South adjacent properties were occupied by Xxx.
Xxxx X. Xxxxxx Boarding & Lodging in 1907, Colonial Inn in 1913, Xxxxxxx Inn
in 1920, Colonial Inn and Xxxx X. Xxxxx in 1926, Hotel Bartime and Xxxxxxx
X.
Xxxxxxx in 1932, Coach Lamp Inn and multiple residences and Eastern States
Farmers Exchange in 0000, Xxxxxxxx Xxx, Xxxxxx X. Xxxxxx and Eastern States
Farmers Exchange in 1947; The Berkshire Chalet Inn and Eastern States Farmers
Exchange in 1963; and Agway Inc. from 1992-2007. East adjacent property was
not
listed from 1907-1963, but was occupied by Condor Rental Co. in 1992, Condor
Chevrolet in 1997, and Condor Chevrolet Pontiac Buick Oldsmobile in 2007. West
adjacent property was occupied by N.Y., N.H & H. RR Crossing from 1907-1920,
and N.Y., N.H & H. RR Crosses at Grade in 1926. North adjacent property was
not listed in city directories.
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The
Building Inspector, the Fire Inspector, and the Health Department Agent
indicated that neither they nor their departments have knowledge of any
"recognized environmental conditions" associated with subject property.
Building Department files contain reports of building code inspections, various
building permits, and “certificates of occupancy”. Site-specific building and
health department files did not contain any reference to hazardous chemicals
or
petroleum products. Site-specific fire department files did not contain any
reference to hazardous chemicals, but did contain a detailed permit to
close-in-place one 6,000 fuel oil UST and one 2,000 gal. fuel oil
UST.
The
owner
(Xx. Xxxx) informed us that there are two (2) closed-in-place, former
underground fuel oil storage tanks (6,000 and 2,000 gal.) partially situated
under the central section of Building 1. Xx. Xxxx provided us with a copy of
a
Massachusetts Department of Public Safety, Division of Fire Prevention permit
application for tank removal. This application, Fire Department Identification
Number 03113, dated July 8, 1992, listed the applicant as Xxx Xxxxxxxxx
Excavating, Inc., and was approved by Great Barrington Fire District Chief
Xxxxxxxxx. The application indicates that the substance lasted stored
in the tanks was fuel oil, and provides a site sketch showing the approximate
location of the two USTs in relation to Building 1. The sketch contained the
following note: ‘Two fuel oil tanks located under main building were filled in
place with a concrete slurry mix’. There are no records or soil chemistry data
available; soil condition in the vicinity of these USTs is
undocumented.
Xx.
Xxxxx
Xxxx informs us that he is not aware of any environmental liens, engineering
controls, or institutional controls associated with the property.
Xx. Xxxx further informs us that S&A Supply has utilized Lot 2 since 1976
and Lot 6 since 1995. Xx. Xxxx asserts that he has no specific knowledge of
generation, storage or disposal of hazardous chemicals, or chemical spills,
or
obvious indicators of contamination, or environmental cleanups at subject
property.
MADEP
and
USEPA databases have been examined for reports of hazardous chemical spills
or
releases within one mile of subject property and for potential sites that may
have impacted subject property. There is one Comprehensive Environmental
Response Compensation and Liability Information System (CERCLIS) no Further
Remedial Action Planed (NFRAP) site, one Resource Conservation and Recovery
Act
Corrective Action Generator (RCRAGN), twenty-one sites with known chemical
or
petroleum contamination (STATE), twenty-nine reported spills (SPILLS), eleven
reported leaking tanks (LUST), two registered facilities with
underground storage tanks (REG UST), ten facilities listed in the Area of
Critical Environmental Concern (STATE ACEC), four facilities listed in the
Facility Index System (FINDS), one facility listed in the Hazardous Material
Incident Response System (HMIRS), and two facilities reporting releases of
less
than reportable volumes (OTHER), within one mile of subject
property.
There
are
no federal or state environmental records suggesting that subject property
has
been impaired in any way. Furthermore, there has not been any report of chemical
release at subject property or at any adjacent property. The environmental
profile indicates that there are neither environmental liens against the
property nor any Activity and Use Limitations (AULs) associated with subject
property. Subject was not in listed in the MADEP Voluntary Cleanup Program
or
the Brownfields Program. Relevant portions of the environmental profile are
included in Attachment A.
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Conclusions
and Recommendations
We
conclude, based on the results of this ASTM Phase I assessment process and
our
professional judgment (taking into account applicable professional practices
currently utilized in surveying and assessing this type of property), that
the
presence of several fuel oil ASTs, the undocumented abandonment of former fuel
oil USTs, and numerous environmental incidences (including chemical storage,
leaks and spills) represent "recognized environmental conditions" that
require additional investigation
The
Phase
I environmental assessment process is intended to identify "recognized
environmental conditions" that require additional investigation. This
does not mean that subject property is contaminated, only that, based on the
consulting industry’s collective experience, there is the possibility of a past
release, an existing release, or a material threat of a release into the
structures on subject property or into the ground, groundwater, or surfacewater
of subject property. Additional investigation [Phase II] is intended to resolve
any question of impairment or liability. The soil or groundwater chemistry
data
that are normally the result of Phase II sampling would become the basis for
definitive environmental conclusions, and the end point for “environmental due
diligence”.
We
recommend installation of test pits [10’-14’ deep] in the vicinity of the
closed-in-place fuel oil USTs, as well as along the upgradient and downgradient
perimeters of the property. Representative samples of soil and/or groundwater
should be analyzed for volatile and semi-volatile organic compounds, selected
metals, pesticides and PCBs. Chemistry results should be compared to MADEP
soil
cleanup guidelines. This would serve to establish a current environmental
baseline for subject property.
We
suggest that the fuel oil ASTs onsite be retrofitted with secondary containment
and that they be routinely inspected and maintained so as to prevent product
release. This suggestion represents best management practice.
The
environmental assessment that we have completed conforms to industry-wide
standards. Investigations and direct observations notwithstanding, we
do not warrant that there are absolutely no toxic or hazardous chemical
contamination at the subject property, nor do we accept any liability if such
are found at some future time, or could have been found if additional sampling
had been conducted. In view of the rapidly changing status of
environmental laws, regulations, and guidelines, we cannot be responsible for
changes in laws, regulations, or guidelines that occur after the study has
been
completed and which may affect the subject property.
Xxxxxxx
Going & Associates, Inc. has prepared this report for Universal Supply Group
Inc. (Client), although it is based in part on information obtained from third
parties not within the control of either client or Xxxxxxx Going &
Associates. While it is believed that the third-party information contained
herein is reliable, we do not guarantee the accuracy thereof.
Our
website [xxxxxxxxxxxxxxxxxxxxxx.xxx] presents the author’s resume. If there are
questions pertaining to this report, please contact the
undersigned.
Sincerely,
/s/
Xxxxxxx X. Going
Xxxxxxx
X. Going, Principal
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ATTACHMENT
A
USGS
Topographic Locator Map
Neighborhood
Aerial Photograph
Municipal
Tax Map
Photographs
of Subject Property
Portion
of Assessor’s File
Historical
USGS Topographic Area Maps (1897, 1946, 1995)
Xxxxxxx®
Fire
Insurance Maps
(1923, 1947)
Historical
Aerial Photographs (1942, 1952, 1970, 1987, 2006)
Environmental
FirstSearch™ Site-Specific City Directories:
1907,
1913-14, 1920-21, 1926-28, 1932-34, 1940-42, 1947-49, 1955-56,
1963-64,
1992,
1997, 2002, 2007 (August 2007)
Massachusetts
Department of Public Safety, Division of Fire Prevention,
Tank
Removal Permit (1992)
Environmental
Questionnaire Completed By Xx. Xxxxx Xxxx (August 2007)
Environmental
FirstSearch™ ASTM Environmental/Statistical Profile (August 2007)
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