IMPCO
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
October 15, 1998
Xx. Xxxx X. Xxxxxxxxx
IMPCO Enterprises Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
RE: Lease Dated July 1, 1998
18,000 Square Feet
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, XX
Dear Xxxx:
This letter will serve to make the following change to the above referenced
lease.
RENT
The Landlord has agreed to amortize $8,012.00 of improvements into the
lease term. With these amortized costs the revised rent shall now be
$182,138.00 annually, to be paid in equal consecutive monthly installments
of $15,178.16.
All other terms and conditions of the lease shall remain the same.
We look forward to a long relationship with your company. Should you have any
questions please feel free to call.
/s/ Xxxx X. Xxxxxxxxx 10/16/98
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Xxxx X. Xxxxxxxxx, V.P. of Finance Date
/s/ Xxxxxxx X. XxXxxxx 10/15/98
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Xxxxxxx X. XxXxxxx Date
THIS AGREEMENT OF LEASES, dated as of the 1st day of July 1998, between XXXXXXX
X. XXXXXXX, having an office and place of business located at 0000 Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx, hereinafter described as "Landlord" and IMPCO
Enterprises, Inc., a Subsidiary of Webcraft, Inc. a Corporation organized under
the laws of the State of Delaware, with an address of 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx, hereinafter described as "Tenant".
WITNESSETH:
1. DESCRIPTION
-----------
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
premises described on "Exhibit A" attached hereto, consisting of approximately
18,000 square feet of floor area in the building ("Building") known as and
located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, (the "Premises").
2. TERM
----
(A). The term of this Lease (The "Lease Term") shall be five (5) years, to
commence on September 1, 1998, (the "Commencement Date") and to end at midnight,
August 31, 2003, (the "Expiration Date"), subject to the further provisions of
subparagraphs (C) and (D) hereof.
(B). The term "Lease Year" as used herein is defined to be a period of
twelve consecutive calendar months beginning September 1st of each year of the
Lease Term.
(C). Notwithstanding the foregoing, in the event that the Building is not
substantially completed by August 15, 1998 (the "Tenant Installation
Commencement Date"), in order to permit Tenant to begin making its own tenant
improvement installations in accordance with the provisions of Article 5 hereof,
then the Commencement Date (on which the payment of rent under Article 3 hereof
is to commence), shall be delayed one day for each day beyond the date of August
15, 1998, until the Building shall be so substantially completed, with the
intention that Tenant shall have fifteen (15) days prior to rent commencement
during which it may perform its Tenant installation work. In no event shall the
Expiration Date be adjusted by reason of any such delay. In the event that the
Tenant Installation Commencement date has not occurred on or before September
30, 1998, then Tenant by notice to Landlord delivered at any time from and
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after that date, and prior to the actual Tenant Installation Commencement Date
(as measured by Landlord's substantial completion of the Premises), may cancel
this Lease, effective as of the date of such notice, and this Lease upon the
delivery thereof shall be and be deemed to be null and void and of no further
force and effect, and Landlord shall promptly return the security deposit made
in accordance with Article 37 hereof.
(D). Tenant shall have the option to extend the Lease Term by an additional
period of five (5) years, from September 1, 2003, through August 31, 2008, on
the same terms and conditions (except that there shall be no further right to an
extension of the term hereof), provided that Tenant shall give Landlord notice
of its intent to renew not less that nine (9) months prior to the original Lease
Term Expiration Date (i.e., by notice given on or before November 30, 2002), at
a Lease Rate to be negotiated not to exceed a 10% increase.
(E). Tenant shall be permitted to enter the Premises after the Tenant
Installation Commencement Date and prior to the Commencement Date, not for the
purpose of conducting business therein, but solely for the purpose of effecting
the Tenant installation work, without liability for the payment of fixed rent
hereunder; notwithstanding the foregoing, Tenant shall be liable for the payment
of any utilities consumed in the course of its installation work.
3. RENT
----
The rent during the term of this Lease shall be $180,000.00 annually, to be paid
in equal consecutive monthly installments of $15,000.00 in advance on the first
(1st) day of each month during the term hereof, without deduction, setoff or
prior demand which rent Tenant agrees to pay in lawful money of the United
States, which shall be legal tender in payment of all debts and dues, public and
private, by check subject to collection drawn to the order of the Landlord, Xx.
Xxxxxxx X. XxXxxxx, P. O. Box 92878, Department Xx. 000, Xxxxxxxxx, Xxx Xxxx
14692, or such other place as the Landlord may designate by notice to Tenant.
This Lease is granted and accepted upon the foregoing and upon the following
covenants and conditions and subject to the following restrictions, to all and
every one of which the parties consent; and each of the parties hereby expressly
covenants and agrees to keep, perform and observe all the terms, covenants and
conditions herein contained on its part to be kept, performed and observed.
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4. USE
---
The Premises may be used and occupied exclusively by Tenant as an office and
warehouse (collectively, the "approved use"). Tenant will not at anytime use or
occupy the Premises in violation of its approved use. No part of the Premises
shall be occupied or used by any persons for any purpose or, in any manner so as
to increase the insurance risk or rates or prevent the obtaining of insurance
for the approved use; nor so that, in accordance with any requirement or law or
any public authority, the Landlord shall be obligated, on account of the purpose
or manner of said approved use or occupation, to make any addition or alteration
to or in the building. If, by reason of Tenant's failure to comply with this
provision, the fire insurance rate at any time shall be higher than it otherwise
would have been then Tenant shall reimburse Landlord, as additional rent, for
that part of all fire insurance premiums thereafter paid by Landlord by reason
or such violation by Xxxxxx.
5. LANDLORD'S REPAIRS
------------------
Landlord Shall Maintain and Repair:
1. All Structural Elements of the Premises.
2. Exterior walls.
3. Roofs.
4. Major Repairs to the Pipes, Fixtures.
Tenant is responsible for the maintenance of the Landlord-installed on-site
Building system appliances and equipment (which includes the HVAC units),
and for which all operations and maintenance manuals (or true and complete
copies thereof) have been delivered to Tenant. As long as damages have not
been caused by tenant's failure to maintain appliances and equipment
properly, Landlord shall be responsible for major repairs or replacement to
the appliances and equipment, and shall promptly commence and complete same
or to Landlord following receipt of the bill therefor.
As used herein, the term "major repairs" shall mean repairs costing more
than Five Hundred Dollars, ($500.00) individually or aggregating more than
One Thousand Dollars, ($1,000.00) in any lease year in respect of any one
such Building system.
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6. UTILITIES
---------
(A). Tenant shall pay, as additional rent, either to the utility providing
same or to Landlord following receipt of the bill therefor, all charges for
light, heat, power, electric, gas, water, sewerage charges, pollution charges,
Pure Water charges, fuel charges and such other similar services furnished or
used in connection with the Premises during the Lease Term.
(B). Xxxxxxxx agrees to install separate utility meters for the Premises at
Landlord's sole cost prior to the Tenant Installation Commencement Date (and the
installation thereof shall be required for determination of substantial
completion.)
7. REMEDIES OF TENANT REGARDING
----------------------------
PROVISION OF SERVICES AND UTILITIES
-----------------------------------
No diminution or abatement of rent or other compensation shall be claimed or
allowed for inconvenience or discomfort arising from the making of repairs or
improvements to the Building or to its appliances required by law or the
provisions of this Lease; provided, however, that Landlord agrees to perform
such work only during regular business hours, and with due care for the
minimization of interference with Xxxxxx's conduct of business, and to give
Tenant reasonable advance notice (except in the case of emergency threatening
damage to persons or property) of any intended Landlord entry for the purposes
of Lease-mandated repairs or maintenance or legally-required improvements.
However, for any space taken to comply with any law, ordinance or order of a
governmental authority, the rent shall be apportioned ratably. In respect to the
various "services", if any, herein expressly or impliedly agreed to, be
furnished by the Landlord to the Tenant, it is agreed that there shall be no
diminution or abatement of the rent, or any other compensation, for interruption
or curtailment of such "services" when such interruption or curtailment shall be
due to accident, alterations or repairs desirable or necessary to be made or to
some other cause, not gross negligence or willful misconduct on the part of the
Landlord. No such interruption or curtailment of any such "services" shall be
deemed a constructive eviction. The Landlord shall not be required to furnish,
and the Tenant shall not be entitled to receive, any of such "services" during
any period wherein the Tenant shall be in default in respect to the payment of
rent following notice and opportunity to cure as required hereunder. Such
repairs, alterations, etc., shall be done with reasonable dispatch.
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8. PREPARATION OF PREMISES AND TENANT ALTERATIONS
Landlord's Improvements:
(A). Space to be divided into:
Approximately 15,000 square feet of finished office space. Approximately
3,000 square feet of unfinished warehouse space, located within the
Premises as agreed with Tenant.
(B). The finished office space to incorporate:
1. Office space to be open "bull pen".
2. The office area will have dropped ceilings with 2' x 4' lay-ins
and recessed lighting fixtures of sufficient candle power to
eliminate need of desk lighting.
3. The office area will have nine (9) feet of drywall painted.
4. Each office door will be equipped with different only individual
locks and keys, but all locks "master Keyed" for the Branch
Manager (including the door opening into the warehouse area).
5. If Tenant desires window treatments, Tenant shall provide any and
all window treatments. Any interior window treatment shall be per
Tenants design, any exterior window treatment shall be verticals
to maintain a similar exterior appearance.
(C). Tenant may make leasehold improvements as reasonably required for the
conduct of Xxxxxx's business, including additional partitions, wall,
floor and ceiling coverings, window blinds and shades and draperies or
other window hangings (subject to item 5 above), and other fixtures
and equipment necessary to the conduct of the Tenant's business, upon
compliance with the terms of this Article 8.
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1. Not less than twenty (20 days prior to undertaking any
alteration, addition or improvement, Tenant shall notify
Landlord, specifying in detail the alterations or additions
contemplated. Such notice shall be accompanied by a plan,
blueprint, or diagram showing such proposed alterations or
additions, and a bid or contract signed by a reputable builder or
contractor, undertaking to perform said work as show in said
plan, blueprint or diagram for a specified cost stated therein.
2. Tenant agrees it will not proceed with any alteration, addition
or improvement without first obtaining .the Landlord's written
consent to such alterations, addition or improvement (but such
approval shall not be unreasonably withheld or delayed if the
installations are customary or appropriate for Tenant's allowed
use and the design, construction standards, quality standards and
finish are all equivalent to or better than what is present in
the Premises at the Commencement Date, and if not disapproved by
notice given by Landlord within then (10) business days of
Tenant's submission, shall be deemed approved). It is understood
and agreed that Landlord shall have approval rights concerning
compatibility with the facilities within the Building and to
assure that such changes are compatible with and do not exceed
the rated operating capacity of the Building systems, including
electrical and HVAC, which approval shall not be unreasonably
withheld or delayed if same do not adversely impact the Building
systems.
3. If Landlord approves thereof and the specified cost as above
stated is less than $3,000, such approval shall constitute the
necessary consent to such alterations or additions. If, however,
the aforesaid specified cost is in excess of $3,000, then no
consent of the Landlord shall be valid or binding upon it unless
and until Tenant furnishes Landlord with a certificate evidencing
liability insurance with limits of $1,000,000/$100,000/ $250,000
protecting Landlord from any liability for injury to persons or
property arising, directly or indirectly, from the making of such
alterations
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or additions by Xxxxxx, its agents, servants, employees, and/or
independent contractors.
4. In making alterations, Tenant shall conform to all applicable
laws and ordinances of the appropriate governmental and quasi-
governmental authorities having jurisdiction over the Premises.
Any alterations, additions or improvements to the Premises,
including, without limitation, additions of the Tenant fixtures
and equipment, shall be done in a manner which minimizes damage
or potential damage to the Premises.
9. MAINTENANCE AND REPAIRS
-----------------------
Tenant (a) except as specifically set forth in section 5, shall, at the Tenant's
own expense, take good care of the Premises, and the pipes, fixtures,
appliances, equipment and appurtenances belonging thereto, and keep the same in
good order and repairs (if any) shall be in quality and class at least equal to
the original work; on default of Tenant to do such work, the Landlord (following
required notice to Tenant and opportunity to cure) may do it for Tenant's
account, and Tenant shall have no claim for inconvenience on account thereof;
(b) shall not cut or drill or otherwise deface or injure the building, except as
permitted in connection with alterations and additions under Article 8 hereof;
(c) shall not use or permit the use of the roof except as shall be expressly
permitted in writing by Landlord, including, without limitation, for the
installation thereon of any antenna, airlines, masts, or other radio or
television equipment; (d) shall not, without the Landlord's prior written
consent first obtained in each instance, permit any matter or thing to be
extended or projected from the window sash, window sill, cornice or fire escape
of the Premises; (e) shall, within ten (10) days after the Landlord's demand
thereof, pay to Landlord as additional rent hereunder, an amount equal to the
increase, if any, in the amount of the fire insurance premium applicable to the
building for and during the demised term resulting from the Tenant's use and
occupancy of the Premises in violation of the use permitted in this Lease, or
from the Tenant's failure to comply with any requirements of law or the
recommendation of any insurance carrier; (f) shall not, without the Landlord's
prior written consent first obtained in each instance, make alteration or
addition to the electric wiring, equipment, or appliances, including, without
limitation, any heating, air conditioning system, water systems, or gas pipe
systems, or tap any mains or pipes to supply water for refrigeration or air
conditioning apparatus, except as
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permitted in connection with alterations and additions under Article 8 hereof;
(g) shall not, without Landlord's prior written consent first obtained in each
instance, make any alterations, decorations or improvements in or to the
Premises, except as permitted in connection with alterations and additions under
Article 8 hereof provided however, Landlord's consent to non-structural interior
alterations or decorations shall not be unreasonably withheld; (h) shall comply
with all reasonable and uniform written regulations and orders of Landlord
designated to promote the safety or good order of the building; and (i) shall
promptly discharge by filing the necessary bond, or otherwise, any mechanic's
lien or other lien filed against the Premises because of any work or material
done or famished to the Tenant. All alterations, additions or improvements made
to the Premises by either party, including railings, galleries, decorations,
paneling and similar items, unless Landlord shall otherwise elect in writing,
shall become the property of Landlord and be surrendered as part of the Premises
at the expiration or earlier termination of this Lease.
10. COVENANT AGAINST ASSIGNMENT AND SUBLETTING
------------------------------------------
(A). Without the previous written consent of the Landlord, neither the
Tenant, nor the Tenant's legal representatives or successors in interest by
operation of law or otherwise, shall assign or mortgage this Lease, or sublet
the whole or any part of the Premises or any part thereof to be used by others:
Any consent by Landlord to any act of assignment or subletting shall be held to
apply only to the specific transaction thereby authorized. Such consent shall
not be construed as a waiver of the- duty of Tenant, or the legal
representatives or assigns of tenant, to obtain from the legal representatives
or assigns of Tenant, to obtain from Landlord consent to any other or subsequent
assignment or subletting, or as modifying or limiting the rights of Landlord
under the foregoing covenant by Tenant not to assign or sublet without such
consent. Any violation of any provision of this Lease, whether by act or
omission, by any assignee, subtenant, or undertenant, or occupant shall be
deemed a violation of such provision by Tenant, it being the intention and
meaning of the parties hereto that Tenant shall assume and be liable to Landlord
for any and all acts and omissions of any and all assignees, sub-tenants and
undertenants and occupants. If this Lease be assigned, the Landlord may, and is
hereby empowered to collect rent from the assignee if the Premises or any part
thereof be underlet or occupied by any person or Corporation other than Tenant.
Landlord, in the event of Xxxxxx's
8
default may, and is hereby empowered to, collect rent from the undertenant or
occupant; in either of such events, Landlord may apply the net amount received
by it to the rent herein reserved, and no such collection shall be deemed a
waiver of the covenant herein against assignment and underletting, or the
acceptance of the assignee, undertenant, or a release of the Tenant from the
further performance of the covenants herein contained on the part of the Tenant.
(B). Notwithstanding the provision of paragraph 10 (A) hereof, the Tenant
may, without the Landlord's consent, assign this Lease to any parent, affiliated
or subsidiary corporation, provided such assignment does not relieve the
original Tenant of any liability hereunder and may also assign this lease
without Landlord's consent in connection with the merger or consolidation of
Tenant with or into any other corporation or entity, or in connection with the
sale or transfer of a majority of the assets and liabilities of Tenant, so long
as, with respect to either of the foregoing, (i) the shareholder's equity
(determined in accordance with generally accepted accounting principles) of any
assignee is equal to or greater than the shareholders' equity equivalently
determined in Tenant as of the effective date of said assignment, (ii) the
assignee is engaged in a business customarily acceptable for a tenant in a
building such as the Building in metropolitan Rochester, New York, (iii) any
assignee shall assume all of the obligations of Tenant under this Lease, (iv) at
the time of such assignment, this lease is in full force and effect and there is
no event of default under this Lease on the part of Tenant, (v) assignee's
proposed use provision of this Lease, and (vi) such transaction was not entered
into as a subterfuge to avoid obligations and restrictions under this Lease
(such assignee complying with clauses (i) through (vi) hereinafter a "Permitted
Assignee"). At least ten days prior to the effective date of any such assignment
to a Permitted Assignee, Xxxxxx agrees to furnish Landlord with notice of such
assignment and copies of the instruments intended to effect such assignment, and
with thirty days after the effective date of any such assignment to a Permitted
Assignee, to furnish Landlord with copies of the fully executed instruments
effecting any such assignment and documentation establishing Tenant's
satisfaction of the requirements set forth above applicable to any such
assignment. Any such permitted Assignee of Tenant must assume and agree in
writing to fully perform and observe all of the obligations and agreements of
Tenant under this Lease. No such assignment shall relieve any Tenant of this
Lease of any covenants or obligations under this Lease and any Tenant shall
remain fully liable hereunder.
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11. RIGHT OF ENTRY
--------------
Tenant, during the term hereof, shall permit inspection of the demised Premises
during reasonable business hours by Landlord's agents or representatives, and by
or on behalf of prospective purchasers on reasonable advance notice; and shall
permit access by the Landlord, or Landlord's agents or representatives during
reasonable hours for the purpose of making repairs, renovations or decorations
on reasonable advance notice.
12. COVENANT TO SURRENDERS REMOVAL OF PERSONAL PROPERTY
---------------------------------------------------
On the last day of the Lease Term or on the sooner termination thereof, Tenant
shall peaceably and quietly leave, surrender and yield up unto the Landlord all
and singular the Premises broom-clean arid in good order and repair, ordinary
wear and tear and damage by fire, condemnation or other casualty as is insurable
under present or future standard forms of fire and extended coverage insurance
policies, excepted, together with all alterations, additions and improvements
which may have been made upon the Premises with Landlord's permission except
movable furniture or movable trade fixtures put in at the expenses of Tenant. If
the last day of the Lease Term falls on Sunday, this Lease shall expire on the
business day immediately preceding it. Tenant, on or before said date, shall
remove all its property from the Premises, and all property not so removed shall
be deemed abandoned by Tenant. If said Premises be not surrendered at the end of
the term, Tenant shall make good to Landlord all damage which Landlord shall
suffer by reason thereof, and shall indemnify Landlord against all claims made
by any succeeding tenant against Landlord in delivering possession of the
Premises to such succeeding tenant, so far as such delay is occasioned by
failure of Tenant to surrender the Premises.
13. FIRE OR CASUALTY DAMAGE
-----------------------
In case of damage to the Premises or the building of which the Premises are a
part by fire, or other casualty as is insurable under present or future standard
forms of fire and extended coverage insurance policies, Landlord, unless it
shall otherwise elect as hereinafter provided, shall repair the same with
reasonable dispatch after written notice of damage. If the Premises, or any part
thereof, are damaged by fire, enemy action, or other casualty to such an extent
as to be rendered untenantable, but are, nevertheless, repaired by Landlord,
then the rent shall be abated to an extent corresponding with the time during
which and the extent to which said Premises may
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have been untenantable. If such repairs,, however, are delayed because of
Tenant's failure to adjust Tenant's own insurance claim, no reduction shall be
made beyond a reasonable time allowed for such adjustment. If such repairs shall
be reasonably estimated to take more than ninety (90) days to accomplish, and
Landlord has determined not to terminate this lease as hereinafter set forth,
then Landlord shall promptly notify Tenant of the actual estimated time of
repair and Tenant shall have the option, exercisable within ten (10) days of
receipt of Landlord's repair time estimate to terminate this Lease by notice to
Landlord, and the rent shall be adjusted as of the time of the occurrence of any
such fire, enemy actions, or other casualty. If the Landlord in its exclusive
discretion, shall decide, within a reasonable time after the occurrence of any
such fire, enemy action, or other casualty, to demolish, rebuild or reconstruct
the building, then, upon at least thirty (30) days written notice given by
Landlord to Tenant, this lease shall terminate on a .date to be specified in
such notice as if that date had been originally fixed as the expiration date of
the Lease Term, and the rent shall be adjusted as of the time of the occurrence
of any such fire, enemy action, or other casualty. Tenant shall give immediate
notice to Landlord in case of fire or other casualty or in the event of
accidents to or defect in any fixtures or equipment of the building. Landlord,
for itself and its insurers, hereby releases Tenant with respect to any
liability (including that deriving from the fault or neglect of Tenant,
assignees, sub-tenants, its agents, employees or other persons under its or
their direction or control) which Tenant might otherwise have for any damage to
the building or the Premises by fire, explosion, or any other perils covered by
Landlord's insurance, occurring during the Lease Term. Whenever Landlord elects
to insure the Premises or the building against fire or other casualty with an
insurance company selected by Landlord, Landlord shall cause all policies
evidencing such insurance to include a provision permitting such release of
liability if such a provision is obtainable from such insurer at no additional
expense to Landlord. If such insurer will not include such a provision in said
policy, or if the inclusion of such provision in such policy would ,involve an
additional expense for Landlord, Landlord shall so advise Tenant within a
reasonable time. Where such a provision is obtainable from such insurer and
Tenant notifies Landlord in writing within a reasonable time thereafter the
Tenant desires Landlord to cause such a provision to be included in such policy
at the expense of Tenant, Landlord shall cause such a provision to be included,
and Xxxxxx agrees to pay promptly all expenses incurred by Landlord as a result
of such inclusion.
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In case Landlord shall fail to complete such repairs within ninety (90) days
from the date of such damage, the Tenant may at any time after such ninety (90)
day period give Landlord thirty (30) days notice in writing of termination of
this lease, then at the expiration of such thirty day period, this lease shall
terminate as completely as if that were the date fixed for expiration of the
term of this lease unless, Landlord shall have substantially completed repairs
prior to the expiration of such thirty day period.
14. CONDEMNATION
------------
If the whole or a substantial part of the Premises shall be taken for any public
or quasi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof by a public body vested with the power of eminent
domain, then, when possession shall be taken thereunder of the Premises, or any
part thereof, the term herein demised and all rights of Tenant hereunder shall
immediately cease and terminate, and the rent shall be adjusted as of the time
of such termination. The termination shall be without prejudice to the rights of
either Landlord or Tenant to recover compensation from the condemning authority
for any loss or damage caused by the condemnation. Neither Landlord nor Tenant
shall have any rights in or to any award made to the other by the condemning
authority. If, after any condemnation and taking of a part of the Premises, the
remainder of the Premises is suitable, in the reasonable opinion of Tenant, for
continuation of the business of Tenant, this Lease shall not terminate but the
rent and additional rent payable shall xxxxx to the extent to which the Premises
have been reduced by the taking. If the remainder is not so suitable, then
Tenant may terminate this Lease by notice effective as of the date of the
taking. In the event that any repair or rebuilding is necessary to restore the
Premises to a proper condition for the Tenant's use, the costs of such repair or
rebuilding shall be paid by the Landlord, except for costs of replacing trade
fixtures, equipment, furnishings and other elements of the Premises not
originally famished the Tenant by Landlord, which costs shall be paid by Tenant.
15. RELEASE FROM LIABILITY IF UNABLE TO PERFORM
-------------------------------------------
In case Landlord is prevented from making any repairs, decorations or installing
any fixtures or articles of equipment, or performing any other covenant or duty,
whether expressed herein or implied, to be performed on Landlord's part, due to
the Landlord's inability to obtain, or
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difficulty in obtaining, labor or materials necessary thereof, or due to any
governmental rules or regulations relating to the priority of national defense
requirements or due to any other cause beyond Landlord's control, Landlord shall
not be liable to Tenant for damages resulting therefrom; nor shall the same give
rise to a claim in the Tenant's favor that such failure constitutes actual or
constructive, total or partial eviction from the Premises; provided, however,
that Landlord's time to perform shall only be delayed for the period of force
majeure, and Landlord shall give Tenant prompt notice of any occasion of force
majeure which is expected to affect Landlord's fulfillment of any period of
performance hereunder.
16. INSURANCE
---------
(A). Tenant covenants and agrees, at its sole cost and expense, throughout
the duration of this Lease, to obtain, keep and maintain in full force and
effect for the mutual benefit of Landlord and Tenant, comprehensive liability
insurance claims for damage to persons or property arising out of the use and
occupancy of the Premises or any part or parts in limits not less than One
Million Dollars, ($1,000,000.00) for a combined single limit bodily injury,
property damage policy. Such public liability policy or policies shall name
Landlord as an additional insured. Tenant will supply Landlord with certificates
of insurance evidencing the term of this Lease prior to taking occupancy.
(B). All insurance provided for in this paragraph 16 may be in the form of
a general coverage, floater policy or so called blanket policies which may be
furnished by Tenant, or the parent corporation of Tenant or any related entity.
(C). Landlord shall keep the building containing the Premises insured
against loss or damage by fire with extended coverage endorsement in an amount
not less than 80% of the full insurable value thereof. Tenant agrees to pay its
proportionate share of the cost of said insurance during the term hereof. Said
proportionate share shall be determined by multiplying the cost of said
insurance by a fraction, the numerator of which shall be the square foot area of
the Premises and the denominator the total rentable square foot area of the
building of which the Premises are a part. A statement of the cost of said
insurance shall be rendered to Tenant and shall be payable on or before the end
of the month in which said statement is rendered.
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17. INDEMNITY
---------
Except as otherwise provided in Article 13 hereof, Tenant shall indemnify
Landlord against any expense, loss or liability paid, suffered or incurred as
the result of any breach by Xxxxxx, Tenant's agents, servants, employees,
contractors, invitees or licensees, of any covenant or condition of this Lease,
or the carelessness, negligence or improper conduct of Tenant, Tenant's agents,
servants, employees, contractors or invitees. Tenant's liability under this
Lease extends to the acts and omissions of any sub-tenant, and any agent,
servant, employee, invitee or licensee of any such sub-tenant. Except as
otherwise provided in Articles 13 and 18 hereof, Landlord shall indemnify Tenant
against any expense, loss or liability paid, suffered or incurred as a result of
any breach by Landlord, Landlord's agents, servants, employees, contractors,
invitees or licensees, of any covenant or condition of this Lease, or the
carelessness, negligence or improper conduct of Landlord, Landlord's agents,
servants, employees, contractors or invitees.
18. WAIVER OF SUBROGATION
---------------------
Tenant hereby releases Landlord from any and all liability for any loss or
damage caused by fire, or other casualty to the property of Tenant on the
Premises or the contents of the Premises even if such fire or other causality
shall be brought about by the fault or negligence of Landlord or its agents.
19. MECHANIC'S LIEN
---------------
Tenant shall not do or suffer anything to be done whereby the Premises may be
encumbered by any mechanic's lien and shall, whenever and as often as any
mechanic's lien is filed against the Premises for labor or material furnished or
to be furnished to Tenant, discharge the same of record within thirty (30) days
after the date of filing. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant upon
credit; and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversionary or other estate or interest of
Landlord in and to the Premises herein demised.
20. DEFAULT CLAUSE
--------------
Each of the following shall be deemed a default by Tenant and a breach of this
Lease:
14
(A). A default in the payment of the rent herein reserved, or any part
thereof, for a period of ten (10) days after written notice delivered to the
Tenant.
(B). Default in the performance of any other covenant or condition of this
Lease on the part of Tenant to be performed for a period of thirty (30) days
after service of notice thereof by Landlord on Tenant, provided however, that if
the nature of Tenant's default is such that it cannot be cured solely by payment
of money and that more than thirty (30) days may be reasonably required for such
cure, then Tenant shall not be deemed to be in default if Tenant shall
[PAGE 14 OF ORIGINAL MISSING]
21.
22.
23.
24.
(A). An amount equal to all expenses, if any, including reasonable counsel
fees incurred by the Landlord in recovering possession of the Premises, and all
reasonable costs and charges for the care of said Premises while vacant, not
otherwise the obligation of Landlord. which damages shall be due and payable by
Tenant to Landlord at such time or times as such expenses are incurred by
Landlord; and
(B). An amount equal to the amount of all rent and additional rent reserved
under this Lease, less the net rent, if any, collected by Landlord on reletting
the Premises, which shall be immediately due and payable by Tenant to Landlord
and Landlord shall be entitled thereupon to recover same from Tenant on the
several days on which the rent and additional rent reserved in this Lease would
have become due and payable; that is to say, upon each of such days Tenant shall
pay to Landlord the amount of deficiency then existing. Such net rent collected
on reletting by Landlord shall be computed by deducting from the gross rents
collected all reasonable expenses incurred by the Landlord in connection with
the reletting, but shall not include the cost of performing any covenant
contained in Article 24.
15
Without any previous notice or demand, separate actions may be maintained by
Landlord against Tenant from time to time to recover any damages, which, at the
commencement of any such action, have then or theretofore become due and payable
to Landlord under Article 24, without waiting until the end of the original
Lease Term.
25. COVENANTS INDEPENDENT
---------------------
Each and every covenant contained in this Lease shall be deemed separate and
independent, and not dependent on other provisions of this Lease or the use and
occupation of the Premises b3 Tenant, and the performance of any such covenant
shall not be considered to be rent or other payment for the use of said
Premises.
26. LANDLORD MAY CURE DEFAULTS
--------------------------
In the event of any breach hereunder by Xxxxxx, Landlord shall have the right to
cure such breach for the account and at the expense of Xxxxxx. However, Landlord
shall give Tenant prior written notice of its intention to exercise its said
right hereunder and a reasonable opportunity to cure and such breach. If
Landlord at any time, by reason of such breach, is compelled to pay, or elects
to pay, any sum of money or do any act which will require the payment of any sum
of money, or is compelled to incur any expense, including reasonable attorney's
fees, in instituting, prosecuting and/or defending any action or proceeding to
enforce Landlord's rights hereunder, the sum o: sums so paid by Landlord, with
all interest, and costs, shall be deemed to be additional rent hereunder and
shall be due from Tenant to Landlord on the first day of the month following the
incurring of such respective expenses.
27. REAL ESTATE TAXES AND ASSESSMENTS
---------------------------------
(A). Tenant shall in all instances, pay as additional rent a portion of all
real estate taxes including extraordinary and/or special assessments (and all
costs and fees incurred by Landlord in contesting the fees) which may be levied
or assessed by apparent lawful taxing authority .against the land, building and
all other improvements of which the Premises are a part. Such portion shall be
determined as follows: the Tenant shall pay that portion of such taxes as shall
be equal to the product obtained by multiplying said taxes by a fraction, the
numerator of which shall be the square foot area of the Premises and the
denominator the total rentable square feet of the building of which the Premises
are a part. Statement of such additional rent, including all
16
taxes levied or assessed in each calendar year, shall be rendered to Tenant and
shall be paid on or before the end of the month in which the statement is
rendered. A tax bill submitted to Tenant shall be conclusive evidence of the
amount of taxes assessed or levied. Such additional rent attributable to the
year in which the term of this lease terminates shall be apportioned from the
date of the commencement of the term of this lease to the end of the calendar
year in which the lease commences or from the beginning of the calendar year in
which this lease terminates to the date of the termination of the term of this
Lease as the case may be and shall be paid within five (5) days after demand
therefore. Each tax or assessment levied during the calendar years in which this
lease commences and terminates shall be included in the computation of Tenant's
portion regardless of the date of the commencement or termination of the term of
this lease.
(B). Tenant shall pay before delinquency any and all taxes, assessments,
license fees and public charges levied, assessed or imposed and which become
payable during the lease term upon leasehold improvements, fixtures, furniture,
appliances and personal property installed or located in or on the Premises. If
any such taxes, assessments, license fees, or public charges are not levied,
assessed or imposed separately upon such property, a fair and equitable
allocation of such taxes, assessments, license fees or public charges shall be
made between such property included in the same tax assessment or other bill.
28. LATE CHARGES
------------
A charge equivalent to five percent (5%) of the payment amount will be due for
any rent received after the 7th day of the month. Notwithstanding the above
charges, this Lease shall be considered in default if payment is not received
when due following notice to Xxxxxx as provided hereunder.
29. COMMON AREAS
------------
(A). Common areas and facilities furnished by Landlord shall include
parking area, access driveways, and such other areas, facilities, and exterior
utilities as may be furnished by Landlord and designated for the benefit of the
Tenants, all of which areas and facilities shall be subject to exclusive control
and management by Landlord. Landlord shall have the right from time to time to
establish, modify and enforce all reasonable rules and regulations in respect to
such areas, facilities and exterior utilities and use thereof.
17
(B). Tenant shall pay to Landlord as additional rent a portion (as
determined pursuant to Paragraph (C) hereof) of each year's cost of the snow
plowing for the parking areas and sidewalks, landscaping, lawn maintenance,
driveway maintenance and exterior utilities.
(C). At the termination of each maintenance year for snow plowing,
landscaping, lawn maintenance, driveway maintenance and exterior utilities, the
Landlord shall submit to Tenant a statement of the operating cost for such
services. Tenant shall pay as Tenant's portion of annual operation cost of the
common area an amount equal to the product obtained by multiplying the estimate
by a fraction, the numerator of which is the square foot area of the Premises
demised by this Lease and the denominator of which is the square foot area of
the total leasable area of the building of which the Premises are a part.
30. HOLDING OVER
------------
Any holding over after the expiration of the term hereof, with the consent of
the Landlord, shall be construed to be a tenancy from month to month at the
rents herein specified (pro-rated on a monthly basis) and shall otherwise be on
the terms and conditions herein specified so far as applicable.
31. BANKRUPTCY
----------
In order to more effectively secure to the Landlord the rent and other terms
herein provided, it is agreed as. a further condition of this Lease that the
filing of any petition in bankruptcy, or assignment for the benefit of creditors
by or against the Tenant or any guarantor of Tenant's obligations hereunder
shall be deemed to constitute a breach of this Lease, and thereupon ipso facto
and without entry or any other action by the Landlord this Lease shall become
and be terminated and notwithstanding any other provision of this Lease the
damages for such breach in an amount equal to the amount of the rent reserved in
this Lease for the residue to the term hereof, less the fair rental value of the
Premises for the residue of said term plus all costs of resenting.
32. SIGNS
-----
Tenant shall not place, erect or install any signs on the outside or the inside
or upon the roof of the building or allow printed displays or show window
lettering in such manner as to be seen
18
from the exterior of building without prior written approval by Landlord.
Landlord grants approval for signage displayed on the inside windows of the
demised premises. Any such sign permitted shall comply with sign regulations
which shall be established by Landlord. All such signs shall be maintained in
good and safe condition and appearance by the Tenant at its own expense. Tenant
shall repair damage to the Premises, either inside or outside, resulting from
the erection, maintenance or removal of said signs.
33. VENDING MACHINES
----------------
Tenant may, if Tenant so elects, install on the Premises and operate vending
machines to dispense hot and cold beverages, ice cream, candy and cigarettes.
Such machines shall be maintained in a neat and sanitary condition and shall
comply with all applicable laws and ordinances. Any contract entered into by
Tenant with third parties or the installation and/or maintenance of such vending
machines shall provide that Landlord shall have no liability in connection
therewith.
34. RULES
-----
In the event that Landlord receives written notification that the Premises do
not conform to applicable requirements of law, requirements of duly constituted
authority, or any Board of Underwriters, Landlord shall cause the Premises to be
brought into compliance with said laws or regulations. In the event that Xxxxxx
receives written notice that it is not in full compliance with all applicable
statutes, ordinances, rules and regulations pertaining to Tenant's use of the
Premises, or to any Tenant's alterations or additions to the Premises, then
Tenant shall fully comply with all such applicable statutes or rules. In each
instance, the noticed party shall perform the required work at its own cost and
expense.
35. REMEDIES CUMULATIVE
-------------------
The rights given to Landlord herein are in addition to any rights that may be
given to Landlord by any statute or otherwise.
36. WAIVER OF RIGHT OF REDEMPTION
-----------------------------
Tenant, for itself and for all persons claiming through or under it, hereby
expressly waives any and all rights which are or may be conferred upon Tenant by
a present or future law to redeem
19
said Premises, or to any new trial in any action of ejectment under any
provision of law, after re-entry thereupon by Landlord. If Landlord shall
acquire possession of said Premises by summary proceedings, or in any other
lawful manner without judicial proceedings, it shall be deemed a re-entry within
the meaning of that word as used in this Lease.
37. SECURITY DEPOSIT
----------------
Tenant has deposited with Landlord the sum of $15,000.00 as security for the
faithful performance and observance by Tenant of the teens, provisions and
conditions of this Lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this Lease, including,
but not limited to, the payment of rent and additional rent, Landlord may at its
option use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any rent and additional rent or any
sum as to which Tenant is in default or for any sum which Landlord may expend or
may be required to expend by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this Lease, including but not limited to, any
damages or deficiency in the relating of the Premises whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. Landlord shall deposit the security into an interest bearing account
in a bank to be selected, from time to time, by Landlord in its sole discretion
(with interest at the rate payable generally by commercial banks in Rochester,
New York, from time to time on lease security commercial accounts), which
account shall be separate from Landlord's funds and shall be designated as
Tenant's security deposit account. Xxxxxxxx agrees to hold the said security in
such an account for the entire Lease Term, subject, however, to the terms of
this Article with respect to the application of such security in the event of
Xxxxxx's default hereunder. To the extent permitted by law, Xxxxxx agrees that
Landlord shall be entitled to receive and retain, as an administrative fee, a
sum equal to one (1%) percent per annum upon the security, and Landlord shall
have the right to withdraw such sum from time to time as Landlord shall
determine, in its sole discretion. The balance of the interest earned on such
security shall be paid to Tenant at least once during each year of the Lease
Term hereof, upon the request of Tenant. In the event that Tenant shall fully
and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the security shall be returned, without interest, to
Tenant after the date fixed as the end of the Lease and within a reasonable time
after delivery of entire possession of
20
the demised Premises to Landlord. In the event of a sale of the land and
building or leasing of the buildings, of which the demised Premises form a part,
Landlord shall have the right to transfer the security to the vendee or lessee,
and Landlord shall thereupon be released by Tenant from all liability for the
return of such security; and Xxxxxx agrees to look to the new Landlord solely
for the return of said security; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security to a new
Landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the movies deposited herein as security and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
38. SUBORDINATION TO MORTGAGES
--------------------------
This lease is and shall be subject and subordinate to any mortgage or mortgages
and to any extensions or modifications thereof now in force or which shall at
any time be placed upon the Premises or any part thereof or the building of
which the Premises is a part of. The Tenant agrees that it will, upon demand,
execute and deliver such instruments as necessary to effect more fully such
subordination of this lease to the lien of any such mortgage or mortgages as
shall be desired by any mortgagee or proposed mortgagee and in the event of the
failure of the lessee to execute such instrument, the Lessee hereby nominates
and appoints the Lessor attorney-in-fact for the purpose of executing any such
instrument of subordination.
39. COVENANT OF QUIET ENJOYMENT
---------------------------
If and so long as Tenant pays the rent and additional rent reserved by this
Lease, and performs and observes all the covenants and provisions hereof, Tenant
shall quietly enjoy the Premises, subject, however, to the terms of this Lease.
This covenant shall be construed as a covenant running with the land and shall
not be construed as a personal covenant of Landlord, but is subject to the
provisions of Article 41 of this Lease respecting transfer of Landlord's
interest.
40. ENTIRE AGREEMENT
----------------
This instrument contains all the agreements and conditions made between the
parties hereto and supersedes all prior or other leases, agreements and
representations in connection with the Premises and may not be modified orally
or in any other manner than by an agreement in writing, signed by all the
parties hereto or their respective successors in interest. The receipt of
21
rent by Landlord, with knowledge of any breach of this Lease by Tenant or of any
default on the part of Tenant in this observance or performance of any of the
conditions or covenants of this Lease shall not be deemed to be a waiver of any
provision of this Lease. If the Tenant makes any payment of any amount less than
that due hereunder, Landlord, without notice, may accept the same as a payment
on account; Landlord shall not be bound by any notation on any check involving
such payment or any statement in any accompanying letter. No failure on the part
of Landlord to enforce any covenant herein contained nor any waiver of any right
thereunder by Landlord, unless in writing, shall discharge or invalidate such
covenant or provision or affect that right of Landlord to enforce the same in
the event of any subsequent breach or default. The receipt by Landlord of rent
or any other sum of money or any other consideration hereunder paid by Xxxxxx
after the termination, in any matter of the term herein demised shall not
reinstate, continue extend the term demised or destroy 1 in manner impair the
efficiency of any such notice of termination as may have been give hereunder by
Landlord or Tenant prior to the receipt of any such sum of money or other
consideration, unless so agreed to in writing and signed by Landlord. Neither
acceptance of the keys nor any other act or thing done by Landlord or any agent
or employee during the term herein demised shall be deemed to be an acceptance
of a surrender of said Xxxxxxxx, excepting only an agreement in writing signed
by Xxxxxxxx accepting or agreeing to accept such a surrender.
41. EFFECT OF CONVEYANCE
--------------------
The term "Landlord" as used in this Lease, means only the owner for the time
being of the Premises so that, in the event of any sale of the Premises or in
the event of a lease by Landlord of the Premises subject to this Lease or
assignment by Landlord of this Lease, and the security deposited hereunder
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of the Landlord hereunder arising subsequent to any such transfer
and provided any such transferee assumes in writing the obligations of Landlord
hereunder and a copy of such assumption is delivered to Tenant, and it shall be
deemed and construed without further agreement between the parties or between
the parties and the purchaser at any such sale or the new lessee of the Premises
or assignee of this Lease that such purchaser or said new lessee, or said
assignee has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder. If any landlord named herein be acting in a
fiduciary or representative
22
capacity, the termination, in whole or in part, of such capacity shall be deemed
a transfer within the meaning of this paragraph.
42. TOWN REGULATIONS AND OBLIGATIONS
--------------------------------
Tenant shall have full responsibility of complying with all Town regulations
including but not limited to, use as described by zoning ordinances etc;
provided, however, that Landlord warrants (i) that the Building Premises as
delivered to Tenant in accordance with Article 8 hereof are in conformity with
all said building and zoning ordinances and all applicable Federal Ordinances
such as the Americans With Disabilities Act, and any violation thereof noted
after the Commencement Date (and not caused by any alteration of Tenant) shall
be cured at Landlord's sole cost and expense, and (ii) that the approved use of
the Premises is permitted by said zoning ordinances and the certificate of
occupancy for the building containing the Premises so provides.
43. CONSTRUCTION OF LEASE
---------------------
Words of any gender used in the Lease shall be held to include any other gender,
and words in the singular number shall be held to include the plural, when the
sense requires. Consents required of Landlord hereunder shall not be
unreasonably withheld or delayed.
44. MARGINAL NOTES
--------------
The marginal notes as to contents of particular paragraphs herein are inserted
only for convenience and are in no way to be constructed as a part of this Lease
or as a limitation on the scope of the particular paragraphs to which they
refer.
45. RIGHTS OF SUCCESSORS AND ASSIGNS
--------------------------------
The covenants and agreements contained in the within Lease shall apply to, enure
to the benefit of, and be binding upon the parties hereto and upon their
respective successors in interest and legal representatives, except as expressly
otherwise hereinabove provided.
46. ENVIRONMENTAL LAWS
------------------
(A). Tenant covenants and agrees as follows:
23
(1). Tenant shall keep the Premises free of all Hazardous
Substances and shall not cause or permit the Premises or any part thereof to be
used for the treatment, generation, transportation, processing, production,
disposal, storage or handling of any hazardous substances, and shall promptly
remove from the Premises and shall dispose of all Hazardous Substances by-
products, arising from Tenant's use of the Premises, in compliance with all
applicable Environmental Laws.
(2). Tenant shall comply with all applicable Environmental Laws and
shall obtain and comply with all Environmental Permits relating to Xxxxxx's use
of the demised premises.
(3). Tenant shall not cause or permit any change to be made in the
present or intended use of the demised premises which would (1) involve the
storage, treatment, generation, transportation, processing, handling, production
or disposal of any Hazardous Substance or the use of the demised premises as a
landfill or other waste disposal site or for military, manufacturing or
industrial purposes or for the storage of petroleum or petroleum based products,
(2) violate any applicable Environmental Law, (3) constitute non-compliance with
any Environmental Permit or (4) increase the risk of a release of any Hazardous
Substance.
(4). Tenant shall promptly provide Landlord with a copy of all
notifications which it gives or receives with respect to any past or present
release or the threat of a release of any Hazardous Substance on, at or from the
demised premises given by or on behalf of Tenant to any federal, state or local
governmental agencies or authorities or received by or on behalf of Tenant from
any source whatsoever.
(5). Tenant shall undertake and complete all investigations,
studies, sampling and testing and all removal and other remedial actions
necessary to contain, remove and clean up all Hazardous Substances that are
determined to be present at the demised premises, arising from Tenant's use of
the demised premises, in accordance with all applicable Environmental Laws and
all Environmental Permits.
(6). Tenant shall at all times allow Landlord and its officers,
employees, agents, representatives, contractors and subcontractors reasonable
access to the demised premises for the purpose of ascertaining site conditions,
including, but not limited to, subsurface conditions.
24
(7). If at any time Tenant obtains any evidence or information
which suggests that potential environmental problems may exist at the demised
premises arising from Tenant's use of the demised premises, Landlord may require
that a full or supplemental environmental inspection and audit report with
respect to the demised premises of a scope and level of detail satisfactory to
Landlord be prepared by an environmental engineer or other qualified person
acceptable to Landlord, at Tenant's sole cost and expense. If said audit report
indicates the presence of any Hazardous Substance or a release or the threat of
a release on, at or from the demised premises arising from Tenant's use of the
demised premises, Tenant shall promptly undertake and diligently pursue to
completion all necessary, appropriate and legally authorized investigative,
containment, removal, clean up and other remedial action, using methods
recommended by the environmental engineer or other person who prepared said
audit report and acceptable to the appropriate federal, state and local
regulatory authorities.
(B). Tenant covenants and agrees, at its sole cost and expense, to
indemnify, protect, defend and save harmless Landlord from and against any and
all damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, attorneys' and experts' fees,
expenses and disbursements) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Landlord and
Tenant relating to, resulting from or arising out of (i) Tenant's use of the
demised premises for the storage, treatment, generation, transportation,
processing, handling, production or disposal of any Hazardous Substance or as a
landfill or other waste disposal site or for military, manufacturing or
industrial purposes or for the storage of petroleum or petroleum based products,
(ii) the presence of any Hazardous Substance or a Release or the threat of a
release on, at or from the demised premises arising from Tenant's use of the
demised premises, (iii) the failure to promptly undertake and diligently pursue
to completion all necessary, appropriate and legally authorized investigative,
containment, removal, clean up and other remedial actions with respect to a
Release or the threat of a Release on, at or from the demised premises arising
from Tenant's use of the demised premises, (iv) human exposure to any Hazardous
Substance, noises, vibrations or nuisances of whatever kind to the extent the
same arise from the use and operation of the demised premises, (v) a violation
by Tenant of any applicable Environmental Law, (vi) non-compliance by Tenant
with any Environmental Permit or (vii) a material misrepresentation or
25
inaccuracy in any representation or warranty or a material breach of or failure
to perform any covenant made by Tenant in this Paragraph 46.
(C). All capitalized terms used in this Section and not heretofore
defined shall have the meanings set forth below.
"Environmental Laws" means all federal, state and local environmental, land
------------------
use, zoning, health, chemical use, safety and sanitation laws, statutes,
ordinances and codes relating to the protection of the Environment and/or
governing the use, storage, treatment, generation, transportation, processing,
handling, production or disposal of hazardous substances and the rules,
regulations, policies, guidelines, interpretations, decisions, orders and
directives of federal, state and local governmental agencies and authorities
with respect thereto.
"Environmental Permits" means all permit, licenses, approvals,
---------------------
authorizations, consents or registrations required by any applicable
Environmental Law in connection with the ownership, use and/or operation of the
demised premises for the storage, treatment, generation, transportation,
processing, handling, production or disposal of hazardous substances or the
sale, transfer or conveyance of the demised premises.
"Hazardous Substance" means, without limitation, any flammable explosive,
-------------------
radon, radioactive materials, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyl's, petroleum and petroleum products, methane, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials,
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the
------
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et
--
seq.),the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section
---
6901, et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Section
------
2601, et seq.), Articles 15 and 27 of the New York State Environmental
------
Conservation Law or any other applicable Environmental Law and the regulations
promulgated thereunder.
"Release" has the same meaning as given to that term in the Comprehensive
-------
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601, et seq.), and the regulations promulgated thereunder.
------
(D). Landlord makes no warranties or representations with respect to the
condition of the demised premises, except that Landlord warrants and represents
that it has no knowledge of
26
any violation of any Environmental Laws or Environmental Permits affecting the
demised premises. In the event of any violation of Environmental Laws or
Environmental Permits for one or more conditions existing at the Building Prior
to the Commencements Date but noted or issued thereafter, Xxxxxxxx agrees that
Landlord shall be responsible for the cure and/or redemption thereof at
Xxxxxxxx's sole cost and expense.
47. NOTICES
-------
All notices given under this Lease by either party must be in writing and
delivered to an officer, principal, employee or agent of the party being given
notice to or at the address of that party as stated below, or any address
subsequently provided -by such party to the other in writing as the address for
notices, in any one of the following ways: (1) personal service, (2) by any
nationally recognized courier service which provides written evidence of
delivery, or (3) shall be sent by registered mail, return receipt requested, to
the following addresses:
LANDLORD
--------
Xx. Xxxxxxx X. XxXxxxx
0000 Xxxxxx Xxxxxxx Xxxx
P.O. Box 230
Henrietta, New York 14467
TENANT
------
Xx. Xxxx X. Xxxxxxxxx, VP. of Finance
IMPCO Enterprises, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Any notice shall be considered to have been given, in the case of letter, at
5:00 p.m. local time on the date set forth on the post mark appearing on the
envelope. Such notice shall be deemed to be effective upon receipt, regardless
of the method of delivery, as evidence by affidavit of service (if served
personally) or the return receipt provided by the U.S. Postal Service or
nationally recognized courier.
48. PAYMENTS
--------
All payments shall be sent by to the following address:
27
PAYMENTS
--------
Xx. Xxxxxxx X. XxXxxxx
P.O. Box 92878
Department Xx. 000
Xxxxxxxxx, Xxx Xxxx 14692
49. CONSTRUCTION AND VENUE
----------------------
This Lease shall be construed and enforced in accordance with the internal laws
of the State of New York without reference to the principles of conflicts of
laws. Any suite which may be brought to interpret or enforce any of the terms or
obligations of a party hereunder shall be brought in State Supreme Court, Monroe
County, New York.
50. BROKER
------
Landlord and Tenant each represent to the other that each has not had any
dealing with any broker, agent or finder in connection with this Lease, other
than Landlord's engagement of Pyramid Brokerage Company of Rochester, and
Landlord and Tenant each agree to hold the other harmless from and indemnify the
other against any cost, expense or liability for any compensations, commission,
fee charge or damages, including reasonable attorneys' fees an expenses, as a
result of any claim of any other broker, agent or finder claiming under or
through the indemnifying party with respect to this Lease or the negotiation of
this Lease; provided that the Landlord shall pay all fees to Pyramid Brokerage
Company of Rochester pursuant to the terms, covenants and conditions of a
separate agreement.
28
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have duly executed this Lease as of the
day and year first above written.
Xxxxxxx X. XxXxxxx
LANDLORD By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------------------
Xx. Xxxxxxx X. XxXxxxx, Landlord
7-1-98
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Date
WITNESS /s/ Xxxxx X
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7-1-98
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Date
IMPCO ENTERPRISES, INC.
A Subsidiary of Webcraft, Inc.
LANDLORD By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, V.P. of Finance
7-1-98
--------------------------------------------
Date
WITNESS /s/ Xxxxx X.
--------------------------------------------
7-1-98
--------------------------------------------
Date
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