LEASE AGREEMENT
THIS AGREEMENT made as of this first day of Sept 17, 1999, by and between
DUNKIRK INTERNATIONAL GLASS & CERAMICS CORP., 000 Xxxxxxxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxx, Xxx Xxxx 00000, (hereinafter referred to as "Landlord") and RED
WING COMPANY, INC., 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, (hereinafter
referred to as "Tenant"),
WITNESSETH:
WHEREAS, the Landlord is the owner of that certain parcel of land, with
improvements, known as 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, and
WHEREAS, the Landlord desires to lease unto the Tenant under the terms and
conditions hereinafter set forth, a portion of 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxx Xxxx consisting of approximately thirty-three thousand square feet in the
lower west wing of the facility as further described in Schedule "A" attached
hereto,
NOW, THEREFORE, the parties hereto expressly agree as follows:
1. The Landlord, for and in consideration of the rents, covenants and
agreements hereinafter specified to be paid, kept and performed by the Tenant,
hereby leases a portion of the property located in the City of Dunkirk, County
of Chautauqua, and State of New York, consisting of the lower west wing of the
premises at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter the "Leased
Premises") to the Tenant for the purpose of storage of food products and
packaging.
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2. The Landlord covenants and agrees with the Tenant:
(a) That the title to the Leased Premises is vested in fee simple in
the said Landlord.
(b) That the Landlord has the lawful authority to lease that portion
of the building, together with the improvements thereon, for the term herein set
forth and for any renewals herein provided for.
(c) That the Leased Premises are now zoned for the purposes
described in paragraph 1.
(d) This lease is assignable by the Tenant upon the written consent
of the Landlord, which consent shall not be unreasonably withheld.
3. The term of this Lease shall be for one (1) year, commencing upon
receipt by Tenant of certification permitting food products and packaging to be
stored upon the premises ("Commencement Date") and terminating one year
therefrom, unless sooner terminated by the Landlord or Tenant as herein
provided. The annual rental for the one-year term of the lease shall be Three
Dollars per square foot, payable in monthly installments of eight thousand two
hundred fifty 00/100 Dollars ($8,250.00), per month, in advance of the first
(1st) day of each month. Unless either party notifies the other ninety (90) days
prior to the end of the term that it elects to terminate, this lease shall
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continue for an additional year under the same terms and conditions, including
the continuing renewal provisions.
4. The Tenant shall pay to the Landlord a security deposit consisting of
the first and last month's rent. The Landlord shall grant the Tenant the right
to enter upon the premises for the purposes of removing the storage bin walls
and for cleaning in order to receive the necessary certification for storage of
food products. The costs of the removal of the storage bin walls and cleaning
shall be deducted from the amount of the security deposit upon submission to the
Landlord of the invoices for this work. In the event the cost of removal and
cleaning is greater than the security deposit, the excess shall act as a credit
against rental payments described herein.
5. All charges, costs and expenses which the Tenant is required to pay
hereunder, together with all interest and penalties that may accrue thereon in
the event of the Tenant's failure to pay such amounts, and all damages, costs
and expenses which the Landlord may incur by reason of any default of the Tenant
or failure on the Tenant's part to comply with the terms of this Lease, shall be
deemed to be additional rent, and in the event of nonpayment by the Tenant, the
Landlord shall have all the rights and remedies with respect thereto as the
Landlord has for the nonpayment of the basic rent.
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6. (a) The Landlord shall pay premiums for insurance coverage on the
Leased Premises, including fire and extended coverage. The expense of insuring
the contents of the demised premises shall be borne by the Tenant.
(b) The Tenant shall pay all utility expenses and premiums for
public liability insurance. Such public liability insurance shall name Landlord
as an additional insured at Tenant's sole expense. It is understood there is
currently no water facilities on the Leased Premises.
(c) The Tenant shall furnish to the Landlord official receipts or
other satisfactory proof of payment of such utility and insurance expenses,
within a reasonable time after demand by the Landlord.
(d) The Landlord appoints the Tenant the attorney-in-fact of the
Landlord for sole purpose of making all payments to be made by the Tenant
pursuant to any of the provisions of this Lease to persons other than the
Landlord. In case any person to which any sum is directly payable by the Tenant
under any of the provisions of this Lease shall refuse to accept payment of such
sum from the Tenant, the Tenant shall thereupon give written notice of such fact
to the Landlord and shall pay such sum
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directly to the Landlord, who shall thereupon pay such sum to such person.
(e) The Tenant, at its own cost, may tie-in and use the on-site gas
well as an energy source for heating the Leased Premises. The gas is to be
provided by the Landlord, at no cost to the Tenant, provided the temperature be
maintained at 45(degrees) F. Additionally, if the Tenant is interested in
utilizing this gas well for heating other areas of the Leased Premises, the
Landlord agrees to negotiate with Tenant a cost for the gas to be provided at a
competitive rate.
The Tenant shall comply with all laws and regulations of the
Federal, State, County and Municipal authorities applicable to the business to
be conducted by the Tenant in the Leased Premises.
7. (a) The Landlord shall, at its own expense, make all necessary
structural repairs and replacements to the Leased Premises and to the pipes,
plumbing system, window glass, and fixtures used in connection with the Leased
Premises. If the Landlord is unable, within 30 days of notice, to perform the
necessary repairs and replacements described above, Tenant is authorized to
perform the necessary repairs and replacements and take a credit against the
rent for the cost of those repairs and replacements.
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(b) Prior to the effective date of this lease, Tenant shall have the
right to inspect the premises upon reasonable notice to the Landlord, which
inspection shall include the pipes, plumbing system, window glass and fixtures
used in connection with the Leased Premises.
(c) The Parties acknowledge that the Tenant shall be permitted to
store items listed on Exhibit "B" attached hereto, which at all times shall be
owned by the Tenant. The Exhibit attached is not intended to be exclusive.
8. (a) In the event of damage to or destruction of the Leased premises by
fire or other casualty, the Landlord, at its sole expense, shall promptly
restore the Leased Premises as nearly as possible to its condition prior to such
damage or destruction; provided, however, that all insurance proceeds received
by the Landlord pursuant to the provisions of this Lease, less the cost, if any,
of such recovery shall be held in trust and applied by the Landlord to the
payment of such restoration as such restoration progresses.
(b) If at any time within three (3) months prior to the end of the
initial term or any extended term, the Leased Premises are completely destroyed
or so damaged by fire or other casualty covered by insurance as to render it
unfit for use as intended, and repair or restoration is not economically
feasible, the Landlord or the Tenant may terminate this Lease on notice of
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at least ten (10) days and not more than thirty (30) days. Such notice shall be
given within sixty (60) days after the date of such damage or destruction. If
the Lease shall so terminate, all basic and additional rent shall be apportioned
to the date of termination and all insurance proceeds shall belong to the
Landlord. If the tenant and the Landlord do not agree on the economic
feasibility of repairing or restoring the Leased Premises, such question shall
be arbitrated as hereinafter provided.
(c) If the Lease is not so terminated and the proceeds of insurance
are insufficient to pay the full cost of repair or restoration, the Landlord
shall pay the deficiency. If the insurance proceeds exceed such cost, the excess
shall be paid to the Landlord.
(d) Any disbursement of insurance proceeds by a holder of a
mortgage, or security interest shall be deemed to have been made by the
Landlord. If any holder of a deed of trust, mortgage, or security interest shall
refuse to disburse any portion of insurance proceeds to which the Tenant is
entitled, the Landlord shall provide an equivalent sum from other sources.
9. (a) If the whole or part of the Leased Premises shall be taken or
condemned by any competent authority for any public use or purpose during the
term of this Lease, or if such authority shall take title to the Leased Premises
in lieu of
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condemnation, tenant reserves the right to claim and prosecute its claims in all
appropriate courts and agencies for an award of damages for the taking, based
upon its leasehold interest and ownership of leasehold improvements,
interruption of business, moving expenses and other damages available under the
applicable law, without impairing any rights of Landlord for the taking of or
injury to the reversion.
(b) In the event that a part of the Leased Premises shall be taken
or condemned or title be transferred in lieu of condemnation which, in the
reasonable judgment of Tenant, is sufficient to render the remaining portion
unsuitable for its continued use or occupancy, or in the event that a partial
taking shall result in cutting off direct access from the Leased Premises to any
adjacent public street, highway or road, or which results in the parking lot
area being rendered too small for adequate parking by the Tenant's customers or
for the safe and easy maneuvering of Tenant's vehicles, then and in any such
event, Tenant may at any time either prior to or within a period of sixty (60)
days after the date when possession of the relevant Premises shall be required
by the condemning authority, elect to terminate this Lease. In the event that
Tenant fails to exercise its option to terminate this Lease then this Lease and
Permit shall continue in effect with respect to the portion of the Premises not
taken except that the annual rent shall be reduced
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proportionately. If less than the whole or less than substantially all of the
building on the Leased Premises shall be taken in such proceeding, and the
Tenant shall not elect to terminate this lease, the Landlord shall, with
reasonable dispatch, repair the remaining portion of the Leased Premises (if
there shall then be a building or part of a building on such remaining portion
of the Leased Premises) so as to restore such building as a building complete in
itself, but the Landlord shall not be obligated to expend thereon more than the
sum allowed to the Landlord in such condemnation proceeding for damage to the
building, less all expenses incurred by the Landlord in such proceeding;
provided, however, that if the expense of such restoration would be greater than
the sum allowed to the Landlord, less such expenses in the condemnation
proceeding, then the Landlord shall have an option, for a period of 30 days
after such partial taking, within which to decide whether to make the
restoration or terminate this Lease. If within such 30-day period, the Landlord
shall give written notice to the Tenant of termination, this Lease and the term
hereof shall terminate and expire of the last day of the calendar month
following the month in which such notice shall be given and the net rent,
additional rent, and other sums or charges in this Lease provided to be paid by
the Tenant shall be apportioned and paid to the date of such termination;
provided, however, that if the Tenant shall agree in
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writing, within twenty (20) days after receiving such notice of termination from
the Landlord, to pay the difference by which the cost of such restoration
exceeds the sum allowed to the Landlord in such condemnation proceeding, less
such expenses, then the Landlord's notice of termination and right to terminate
hereunder shall cease and Landlord shall make such restoration an hereinbefore
required.
10. In the event the Tenant shall default in the payment of rent or any
other sums payable by the Tenant herein, and such default shall continue for a
period of thirty (30) days, or if the Tenant shall default in the performance of
any other covenants or agreements of this Lease and such default shall continue
for thirty (30) days after written notice thereof, or if the Tenant shall become
bankrupt or insolvent or any debtor proceedings be taken by or against the
Tenant, then and in addition to any and all other legal remedies and rights, the
Landlord may declare this Lease terminated or Landlord may retake possession of
the Leased Premises and relet the same upon commercially reasonable terms
without termination, in which later event the Tenant covenants and agrees to pay
any deficiency after Tenant is credited with the rent thereby obtained less all
reasonable repairs and expenses (including the expense of obtaining possession).
The Tenant, for and on behalf of itself and all persons claiming through or
under the Tenant, also waives
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any right of redemption or re-entry or repossession or to restore the operation
of this Lease in case the Tenant shall be dispossessed by a judgment or by
warrant of any court or judge or in case of re-entry or repossession by the
Landlord.
11. Tenant agrees, at its sole expense, to maintain comprehensive public
liability insurance covering liability of the Tenant to third parties arising
out of use of the demised premises during the term of this Lease in the minimum
amount of $1,000,000 including property damage. The Landlord shall, at its
exclusive expense. procure and maintain policies of fire, extended coverage and
casualty insurance covering the building and equipment of Landlord in their
entirety in an amount at least equivalent to the replacement value thereof,
which amount is agreed as of the date hereof to be $________________ for the
building.
Certificates evidencing proof of the foregoing insurance
requirements shall be exchanged between the parties hereto no later than the
Commencement Date.
12. If the Tenant shall default in the performance of any of the terms and
covenants in this Lease contained, or in the event that the Tenant shall become
insolvent or bankrupt, or shall make an assignment for the benefit of creditors,
the Landlord may give ten (10) days' notice to the Tenant to cure any default,
and at the expiration of such ten (10) days if the
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default is not cured, the term of this Lease shall terminate as if it were the
expiration of the original term. However, the Tenant shall nevertheless be
responsible for the payment of all rents due hereunder through the date of
expiration of the original lease term.
13. The failure of either party to insist in any one or more instances
upon a strict performance of any of the terms, covenants and conditions of this
Agreement or to exercise any option and make any election herein contained and
provided for shall not be construed as a waiver or a relinquishment for the
future of such terms, covenants and conditional options or elections and the
same shall continue in full force and effect.
14. This Agreement contains the entire agreement between the parties
hereto and modifications of this Agreement or waiver or consent hereunder shall
be valid or binding unless the same be in writing signed by the party or parties
to be bound and this provision shall apply to this paragraph as well as to all
other terms covenants and conditions of this Agreement.
15. This Agreement and all of its terms, covenants and conditions shall be
construed according to the laws of the State of New York.
16. This Agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the respective parties hereto as the
status of the parties require.
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17. Landlord shall hold Tenant harmless with respect to any actual or
consequential damages incurred by Tenant as a result of such default.
18. Tenant may, at its expense, cause this Lease Agreement, or a
memorandum thereof, to be recorded in the Chautauqua County Clerk's Office.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to
be duly executed by the proper and necessary parties hereto the day and year
first above written.
DUNKIRK INTERNATIONAL GLASS &
CERAMICS CORP.
By: /s/ [ILLEGIBLE]
----------------------------------------
RED WING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
EXEC. V.P. OPERATIONS
SCHEDULE A
[LOGO] CONVERSION
------------
TECHNOLOGIES
Xxxx X. Xxxxxxx
Comptroller, CFO
Conversion Technologies International, Inc.
0 Xxx Xxxxxxx Xxxxx, x Xx. Xxxxxxxxx, XX 00000
Office: 000-000-0000 o Fax 000-000-0000 o 000-000-0000
[GRAPHIC OMITTED]
MEMORANDUM OF LEASE AGREEMENT
The undersigned, DUNKIRK INTERNATIONAL GLASS & CERAMICS CORP., 000
Xxxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxx, Xxx Xxxx 00000 ("Landlord") and RED
WING COMPANY, INC., 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, ("Tenant")
entered into a certain Lease Agreement ("Lease") for the lease of real property
dated as of Sept. 17, 1999 and executed on the date hereof.
Such Lease Agreement covers the real property ("Land"), including
approximately 33,000 square feet of the building, affixed or attached thereto
("Building"), as more particularly described in Schedule "A" attached hereto and
made a part hereof.
Such Lease Agreement provides for the rental of the Land, a portion
of the Building and fixtures by the Landlord and for the payment by the Tenant
of rent payable pursuant to such Lease over a lease term commencing Sept. 17,
1999 and expiring no later than Sept. 16, 1999 or such earlier date as is
permitted by the Lease, and all other costs and expenses due from the Tenant are
paid in full.
The Tenant has the option to renew the Lease for an additional year
under the same terms and conditions.
The Parties acknowledge that the Tenant shall be permitted to store
items listed on Exhibit "B" attached hereto, which at all times shall be owned
by the Tenant. The exhibit attached is not intended to be exclusive.
IN WITNESS WHEREOF, the Landlord and the Tenant have caused this
Memorandum of Lease Agreement to be executed in their respective names as of
Sept. 17, 1999.
DUNKIRK INTERNATIONAL GLASS
& CERAMICS CORP.
By /s/ Xxxx X. Xxxxxxx
------------------------------------
RED WING COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
EXEC. V.P. OPERATIONS
STATE OF NEW YORK )
) ss:
COUNTY OF CHAUTAUQUA )
On the 19 day of OCTOBER, 1999, before me personally came XXXX X.
XXXXXXX, to me known, who being by me duly sworn, did depose and say that he
resides at 0000 X. XXXXXX XX., X.X., Xxx Xxxx; that he is the CONTROLLER of
Dunkirk International Glass & Ceramics Corp., the corporation described in and
which executed the above instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Notary Public
XXXXXX X. XXXXXXX
Notary Public, State of New York
Qualified in Erie County
My Commission Expires 04/19/2001
STATE OF NEW YORK )
) ss:
COUNTY OF CHAUTAUQUA )
On the 1st day of July, 1999, before me personally came Xxxxxx X.
Xxxxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at North East PA; that he is the Exec. V.P. of Operations of Red Wing
Company, Inc., the corporation described in and which executed the above
instrument; and that he signed his name thereto by authority of the Board of
Directors of said corporation.
/s/ Xxxxx XxXxxx
-------------------------
Notary Public
XXXXX XXXXXX
Notary Public, State of New York
No. 01D16043962
Qualified in Chautauqua County
Commission Expires May 22, 2001
EXHIBIT "B"
The current plan to utilize the 33,000 sq. ft. section of the Dunkirk Ceramics
facility has the possibilities of storing the following:
o All finished goods
o All packaging materials
o Production equipment
o Concentrate drums
o Raw Materials
o Forklifts
o Empty pallets
o Dock plates
o Shrink wrap
o Wrapping machine
o Labels and X.X. xxxxx
o Office equipment/furniture
o Other miscellaneous items
