LEASE AGREEMENT
Exhibit
10.1
THIS
LEASE , made as of the
16th day of January, 2008, by and between DANSVILLE PROPERTIES, LLC, a
New York limited liability company with offices at 0000 Xxxxxx Xxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter called the “Landlord”), and AMERICAN MOTIVE POWER, INC., a
Nevada Corporation, with offices at 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000 (hereinafter called “Tenant”).
WITNESSETH:
SECTION
1: DEMISED
PREMISES
1.1 (a) Landlord
hereby leases to Tenant and Tenant hereby takes from Landlord, for the term
and
upon the terms, covenants and conditions set forth in this Lease, the following
portions of the parcel of land having an area of approximately 76 acres (the
“Property”) and buildings thereupon owned by Landlord (the “Building”) located
at 0000 Xxxxxx Xxxxxxx Xxxx, Xxxx of North Dansville, Xxxxxxxxxx County, New
York:
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(1)
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manufacturing
space known as Bays 3, 4, 5 and 6, along with the component room
attached
to Bay 3 (having a total area of approximately 236,663 square
feet);
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(2)
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receiving
building (having an area of approximately 6,940 square
feet);
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(3)
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first-floor
office space (having an area of approximately 8,867 square feet)
(combined
for a total of approximately 252,470 square feet of the Building);
along
with;
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(4)
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railroad
spurs 3-1, 3-2, 6-1, 6-2, 6-3, 6-4, 6-5;
and
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(5)
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certain
areas of the Property which are adjacent to the Building or railroad
spurs
and which are marked “AMP Only Area” on the map attached hereto as Exhibit
“A”, subject, however, to the right of Landlord for reasonable access
over
the “AMP Only Area” for the purpose of conducting maintenance
operation.;
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the
dimensions and location of which are shown on the map attached hereto as Exhibit
“A” and made a part hereof, together with all rights, privileges, easements and
appurtenances belonging thereto (the “Demised Premises”).
(b) Tenant
shall have the right to use in common with Landlord and any other tenants in
the
Building certain areas of the Building (the “Building Common Areas”) shown on
Exhibit “A” attached hereto. The Building Common Areas include the main entrance
lobby, common access to production areas, and common facility loading/shipping
dock as required. Tenant’s use of the Building Common Areas shall be
subject to the rules and regulations adopted by Landlord as provided in Section
28.11 hereof.
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SECTION
2: LANDLORD’S
WORK
2.1 Tenant
hereby accepts the Demised Premises in its current “As-Is” condition and
acknowledges that Landlord has made no representations or warranties, express
or
implied, with respect to the condition of the Demised Premises, or its
suitability for the conduct of Tenant’s business other than that Landlord will
provide a “dry shell” for Tenant’s use. Notwithstanding the above,
Landlord agrees to perform the work and install the improvements described
in
Exhibit “B” attached hereto and made a part hereof (“Landlord’s
Work”). The timeframe for the performance of Landlord’s Work shall be
at Landlord’s discretion within the timeframes set forth on Exhibit “B” and
Landlord shall perform the Landlord’s Work in such a manner as to minimize the
effect on Tenant’s operations as much as reasonably possible.
SECTION
3: TERM
3.1 The
term of this Lease shall be for a period of approximately seven (7) years,
commencing on January 16, 2008 (the “Commencement Date”) and expiring on
December 31, 2014 (the “Expiration Date”) (or until such term shall sooner cease
or expire) (the “Initial Term”).
3.2 Tenant
is hereby granted the option to renew this Lease for two (2) successive periods
of five (5) years each following the Initial Term (the “Renewal Terms”) upon the
same terms, covenants and conditions (except the clauses relative to rent and
renewal), provided that at the date of exercise of said option to renew and
at
the date of commencement of the applicable Renewal Term there is no default
by
Tenant beyond any applicable cure period, and provided further that
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Tenant
shall exercise said option to renew by written notice to Landlord not less
than
one (1) year prior to the Expiration Date, with respect to the first Renewal
Term, and not less than one (1) year prior to the expiration of the current
Renewal Term, with respect to the subsequent Renewal Terms.
3.3 The
term “Lease Year” shall mean each twelve (12) month period beginning on the
first day of the term of this Lease and each yearly anniversary thereafter,
provided the commencement of the term of this Lease is on the first day of
the
month. If the term of this Lease commences on any other day than the
first day of the month, then the Lease Year shall begin on the first day of
the
month following the end of the month during which the term of this Lease
commences. Any period prior to the first Lease Year or any period
subsequent to the last Lease Year within the term of this Lease shall be
adjusted with respect to rent or any other matter provided in this Lease in
which the Lease Year is a factor.
SECTION
4: RENT
4.1 Tenant
covenants and agrees to pay to Landlord, in lawful money of the United States,
at the office of Landlord as above set forth or at such other place as Landlord
may designate by written notice to Tenant, without any prior demand and without
any setoff or deduction whatever, rental for the Demised Premises in the annual
amounts specified in Section 4.2 below payable in equal monthly installments
in
the monthly amounts specified in Section 4.2 below in advance on the first
day
of each month during the term of this Lease. Tenant agrees to pay
Landlord on the Commencement Date for the pro rata portion of the monthly rent
for the period between the Commencement Date and the last day of the month
in
which the Commencement Date occurs.
4.2 Rent
during the Initial Term shall be payable as follows:
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Year
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Annual
Rent
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Monthly
Rent
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1
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$378,705.00
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$31,558.75
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2
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$631,175.00
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$52,597.92
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3
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$631,175.00
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$52,597.92
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4
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$820,527.50
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$68,377.29
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5
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$946,762.50
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$78,896.88
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6
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$946,762.50
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$78,896.88
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7
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$946,762.50
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$78,896.88
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4.3 Rent
during each of the Renewal Terms shall be payable as follows:
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Renewal
Term
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Annual
Rent
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Monthly
Rent
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1
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$795,280.50
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$66,273.38
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2
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$835,675.70
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$69,639.64
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4.4 In the event any installment of rent or additional rent is not paid within five (5) days after it becomes due, a late fee equal to five percent (5%) of the late amount shall be charged and shall be payable with such late payment as additional rent.
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SECTION
5: USE
5.1 Tenant
may only use and occupy the Demised Premises for the purpose of repairing,
remanufacturing and rebuilding of locomotives and locomotive engines, as well
as
providing related goods and services to the railroad industry, and providing
engineering or maintenance services for the wind power industry (the “Business”)
and related ancillary uses, and for no other purpose.
5.2 Tenant
shall not, without Landlord’s permission, use or allow upon the Demised Premises
anything, other than uses described in Section 5.1, which will invalidate any
policy of insurance now or hereafter carried on the Property or on any of the
contents thereof, or which may be dangerous, or which will cause an increase
in
the rate of fire insurance on the Property or contents of any of the other
tenants or occupants at the Property; if Landlord grants said permission it
shall be solely on the condition that Tenant will pay on demand any increase
in
insurance premiums on the Property or on the contents of the Property
resulting from said use; nor shall Tenant place any weight upon the floors
which
shall exceed the weight-bearing capacity of the floors; nor permit any
unreasonable noise; nor permit any unreasonable odors to be emitted; nor do
or
permit anything tending to create a nuisance or to unreasonably disturb any
other tenant or the occupants of neighboring property.
5.3 While
Tenant does not currently believe it will be necessary to do so, Tenant reserves
the right to install, at Tenant’s sole cost and expense, portable office
structures within or immediately adjacent to Bays 3,4,5 or 6, as needed, within
the area marked “AMP Only Area” on Exhibit “A”.
SECTION
6: REAL ESTATE
TAXES
6.1 Tenant
agrees to pay directly to the taxing authorities, all Taxes assessed against
the
Demised Premises. Upon receipt of a tax xxxx from the local taxing
authority, Landlord shall furnish a copy of such tax xxxx to
Tenant. Tenant agrees to pay to the taxing authorities the amount of
Taxes due, in the form of a check payable to the applicable taxing authority,
no
later than thirty (30) days after receipt by Tenant of the above invoice, or
five (5) days prior to the due date for such tax xxxx, whichever date is
earlier. The term “Taxes” means all real property taxes, assessments,
embellishments, sewer and water taxes and charges, general and special, ordinary
and extraordinary, unforeseen as well as foreseen governmental levies of any
kind or nature whatever (hereinafter referred to as “Taxes”) assessed, levied,
confirmed, imposed or which become a lien upon the land, building and
improvements comprising the Demised Premises for and in respect of any tax
period during the term of this Lease. Tenant agrees to pay the amount
of Taxes assessed against the Demised Premises as determined by the local taxing
authority. In the event the local taxing authority does not
separately assess Taxes against the Demised Premises, then the amount of Taxes
shall be determined in good faith by Landlord and Tenant based upon the assessed
value of the buildings, improvements and land comprising the entire tax account
of which the Demised Premises are a part.
6.2 Anything
herein contained to the contrary notwithstanding, Landlord agrees that Tenant
shall have the right to contest the amount or legality of any Taxes which it
is
obligated to pay, and the right to make application for the reduction thereof
or
of any assessment upon which the
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same
may
be based, but this shall not be deemed or construed in any way as releasing
or
discharging Tenant’s covenant to pay such Taxes. Landlord shall, at
the request of Tenant, join in any such proceedings or applications; provided
that Tenant agrees to indemnify Landlord against all liabilities, damages,
costs
and expenses, including counsel fees, in connection therewith, and all such
proceedings and applications shall be without cost or expense or liability
to
Landlord. If Tenant shall contest the amount or legality of any such
imposition, or make application for the reduction thereof, or of any assessment
upon which the same may be based, the time within which Tenant shall be required
to pay the same shall be extended until such contest or application shall
have
been finally determined (including all appeals with respect thereto), but
only
if such legal proceedings or such action as Tenant may and does take in
connection therewith shall operate to prevent or stay the collection of the
imposition so contested and the sale of the Demised Premises, or any part
thereof, to satisfy the same. Tenant agrees that it will prosecute
any such contest or application with due diligence and that it will, within
thirty (30) days after final determination thereof (including all appeals
with
respect thereto), pay the amount of such Taxes which may have been the subject
of such contest or application as so determined, together with any interest
and
penalties, costs and charges which may be payable in connection therewith;
provided, however, that if at any time payment of the whole or any part of
the
amount so contested shall be necessary in order to prevent a sale or forfeiture
of the Demised Premises or any part thereof or interest therein because of
the
non-payment of such imposition, then Tenant shall be obligated at all times
to
protect the title and interest of Landlord in the Demised Premises, including
all buildings, improvements and equipment thereon, against any forfeiture
or
loss resulting from the nonpayment of any Taxes or any penalties, costs of
charges in connection therewith.
6.3 Nothing
herein contained shall require Tenant to pay municipal, state or federal income,
excess profits, revenue or excise taxes assessed against or imposed upon
Landlord, or municipal, state or federal capital levy, capital stock, estate,
succession, inheritance, devolution, transfer or gift taxes of Landlord, or
corporation franchise taxes imposed upon any corporate owner of the fee (or
undivided interest(s) in the fee) of the Demised Premises, or any other taxes
of
a similar nature which are or may become payable by Landlord or which may be
imposed against Landlord or against the rent payable hereunder or upon the
income or profits of Landlord by reason of any law now in force or hereafter
enacted.
SECTION
7: TENANT’S PRO RATA SHARE OF
OPERATING CHARGES
7.1 (a) During
the term of this Lease, Tenant shall pay to Landlord as additional rent its
pro
rata share of “Operating Charges” including premiums for fire, casualty, rent
and liability insurance maintained by Landlord with respect to the Property,
and
Landlord’s costs for the maintenance and general repair of the Common Areas
pursuant to Section 11.3 (collectively, “Operating Charges”).
(b) The
following costs and expenses shall not be included as Operating
Charges:
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(i)
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Executives'
salaries above the grade of building
manager;
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(ii)
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Cost
of repairs or replacements incurred by reason of fire or other casually
or
condemnation to the extent Landlord is compensated therefor by
insurance;
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(iii)
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Advertising
and promotional expenditures;
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(iv)
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Depreciation
costs;
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(v)
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Brokerage
commissions;
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(vi)
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Landlord's
income taxes;
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(vii)
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Refinancing
costs, mortgage interest and amortization (except as otherwise provided
herein);
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(viii)
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Legal
or consulting fees of any kind, other than those expenses incurred
for the
general benefit of the Building's
tenants;
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(ix)
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Costs
incurred in selling, syndicating, financing, mortgaging or hypothecating
any of Landlord's interests in the Building or the
Property;
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(x)
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Costs
incurred in removing toxic or hazardous materials (as defined in
this
Lease) from the Building or Property which occur or exist through
no fault
of Tenant;
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(xi)
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Debt
service payments;
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(xii)
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Costs
associated with remedying any latent defects in the construction
of the
Building's roof, foundation, or
walls;
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(xiii)
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Costs,
fines or penalties imposed upon Landlord for violating any law, rule
or
regulation, or for breaching its obligations under any lease;
and
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(xiv)
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Costs,
lines or penalties imposed upon Landlord as a result of late or delinquent
payments (unless such costs, fines or penalties are imposed as a
result of
Tenant’s failure to perform its obligations
hereunder).
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(c) An
estimate of Tenant’s pro rata share of the Operating Charges for the period
ending December 31, 2008 is set forth in Exhibit “C”. Notwithstanding
paragraph (d) of this Section 7.1, Tenant shall pay, as additional rent, the
amounts set forth in Exhibit “C” in equal monthly installments commencing on the
first day of the month following the Commencement Date through and including
December 1 of that year.
(d) On
or before January 1 of each succeeding calendar year during the term of this
Lease, Landlord shall prepare and send to Tenant an estimate of Tenant’s pro
rata share of the Operating Charges for the ensuing calendar
year. Tenant shall pay that amount as Additional Rent in twelve equal
monthly installments commencing January 1 of each year to and including December
1 of that year.
(e) If
Landlord fails to prepare and send to Tenant an estimate of Tenant’s pro rata
share of the Operating Charges for any calendar year on or prior to January
1: (i) Tenant shall continue to pay each month an amount equal to the
Operating Charges paid for the prior calendar year; and (ii) Landlord shall
prepare and send to Tenant an estimate as soon thereafter as
feasible. Tenant shall, on the first day of the month following
receipt of the estimate, pay as additional rent Tenant’s pro rata share of the
Operating Charges in equal monthly payments over the remainder of
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the
calendar year plus (in lump sum) any amount equal to the short-fall, if any,
in
the Operating Charges due for preceding months of that calendar
year.
(f) Within
ninety days after the expiration of each calendar year during the Lease Term,
Landlord shall determine Tenant’s actual pro rata share of the Operating Charges
for that year. Should Tenant’s actual pro rata share of the Operating Charges
for the prior calendar year exceed the estimate, Tenant shall pay the excess
on
demand. Should Tenant’s actual pro rata share of the Operating
Charges for the prior calendar year be less than the estimate, Landlord shall
credit such excess against Tenant’s pro rata share of the estimated Operating
Charges for the next calendar year or, at Landlord’s option, shall remit such
excess to Tenant. In the event that the Expiration Date is a date
other than December 31, Tenant’s pro rata share of the Operating Charges for the
calendar year in which the Expiration Date occurs shall be based on the estimate
for the entire calendar year in which the Expiration Date occurs, prorated
to
the Expiration Date, and no annual adjustment shall be made.
(g) Tenant’s
pro rata share for purposes of computing Operating Charges shall be 52.7
percent.
(h) Notwithstanding
the foregoing, it is agreed that with regard to Controllable Expenses
(hereinafter defined), Tenant's obligation to pay any increases in Controllable
Expenses for any year of the Term of this Lease, shall be limited to an increase
of ten percent (10%) per year (the “Cap”) from the amount paid with respect to
Controllable Expenses for the immediately preceding year; provided, however,
that if any such increase in Controllable Expenses is less than the maximum
amount that Controllable Expenses could have increased pursuant to the foregoing
applicable Cap (the difference between the maximum amount that such Controllable
Expenses could have increased and the amount that they did in fact increase
is
referred to herein as the "Unused Cap"), then the Unused Cap shall be applied
to
increase the Cap that is applicable to the year in question and for all
subsequent years until all Unused Cap amounts arc exhausted. Furthermore, the
Unused Cap for all years shall be cumulated and be applied to increase the
Caps
applicable to all subsequent years in the Term of the Lease. It is the intention
of this provision that the Cap provided with respect to Controllable Expenses
be
a “cumulative cap.” The term "Controllable Expenses" shall mean all
Operating Charges, except (1) Taxes, (2) premiums for insurance required to
be
maintained by Landlord under the Lease, (3) the cost of jointly metered
utilities provided to the Building, and (4) expenses incurred in order to comply
with the requirements of a governmental authority or applicable law or
regulation.
SECTION
8:
INSURANCE
8.1 Tenant
shall carry, at its own expense, and shall cause each of its contractors and
subcontractors to carry, public liability insurance with coverage of at least
$3,000,000/$5,000,000 personal injury and $1,000,000 property damage insurance
for the benefit of Landlord and Tenant and the Xxxxxxxxxx County Industrial
Development Agency. In addition, each such insurance policy shall
contain a contractual liability endorsement specifically covering the
indemnities set forth in this Lease. Tenant shall also cause each of
its contractors and subcontractors to carry workers’ compensation insurance and
any other forms of insurance with respect to their employees required by
law. A certificate of insurance for the above policies shall contain
an endorsement by the insurance company agreeing to give Landlord, Xxxxxxxxxx
County Industrial Development Agency and Landlord’s lender thirty (30) days’
written notice before canceling or modifying the coverage for
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any
reason. Should the Tenant fail to pay the premium on said policies,
Landlord may pay the same and charge the cost thereof, together with interest
thereon at the rate of eighteen percent (18%) per annum (or such lesser rate
of
interest as may be the maximum permitted by applicable law) from the date
of
such payment, to the Tenant as additional rent on the next rental payment
date.
8.2 All
insurance required of Tenant by this Lease shall be procured and maintained
in
financially sound and generally recognized responsible insurance companies
licensed to do business in the State of New York. All insurance
required by this Lease may be provided under Tenant’s blanket policies from time
to time in effect. A certificate of insurance for the policies
required pursuant to Section 8.1 above shall be delivered to Landlord on the
date upon which Tenant occupies the Demised Premises for any reason, but in
no
event later than the Commencement Date. Tenant shall thereafter on
each anniversary of the Commencement Date deliver to Landlord a new certificate
dated no more than thirty (30) days prior to the date of delivery to Landlord
reciting that the policies required by Section 8.1 are in full force and
effect. Prior to the expiration of any such policy, Tenant shall
furnish Landlord evidence that the policy has been renewed or
replaced.
8.3 Landlord
shall maintain during the term of this Lease a policy or policies of insurance
insuring the Building against loss or damages due to fire and other casualties
covered within the classification of fire and extended coverage (e.g., wind,
hail, vehicles, explosions and/or smoke) and all risk perils in amounts
commercially reasonable for this type of Building.
SECTION
9: ALTERATIONS AND TITLE TO
IMPROVEMENTS
9.1 Tenant
shall not make any changes, alterations, additions or improvements
(“Alterations”) to the Demised Premises, other than (a) to install fencing at
the borders of the Demised Premises as it deems necessary to provide secure
work
areas for its employees and secure storage areas for its assets; and (b) to
install, at Tenant’s sole cost and expense, portable and/or temporary office
structures within or adjacent to Bays 3, 4, 5 and 6 as needed, within the area
marked “AMP Only Area” on Exhibit “A”; unless Tenant has first obtained
Landlord’s written consent to any such Alterations, which consent shall not be
unreasonably withheld, conditioned or delayed.
9.2 All
Alterations made by Tenant shall remain the property of Tenant during the term
of this Lease, and, except as provided below, shall become the property of
Landlord upon termination of this Lease, at no expense to Landlord, and shall
remain upon and be surrendered with the Demised Premises, as part thereof,
at
the expiration or termination of this Lease, unless Landlord had required at
the
time it had consented to such Alterations (as provided in Section 9.1 hereof)
that Tenant remove such Alterations at the expiration or termination of this
Lease, then Tenant shall so remove any such Alterations and repair any damage
to
the Premises caused by such removal and shall restore the Premises to
substantially the same condition as existed prior to the time such Alterations
were made to the Demised Premises by Tenant. Notwithstanding the
above, Tenant may remove any Alterations from the Premises prior to the
expiration or termination of this Lease provided Tenant, at its sole cost and
expense, repairs any damage to the Premises caused by such removal and restores
the Premises to substantially the same condition as existed prior to the time
such Alterations were made to the Premises by Tenant. This covenant
shall survive the expiration or termination of this Lease.
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SECTION
10: REPAIRS AND MAINTENANCE –
TENANT
10.1 Tenant
shall take good care of the Demised Premises, shall keep the Demised Premises
in
good and safe operating order and condition and shall not permit any waste,
environmental or otherwise, to accumulate at the Demised
Premises. Tenant shall use and operate the Demised Premises in the
manner for which it was designed and intended, and shall make all non-structural
repairs to the interior thereof and to the fixtures and equipment
therein. All repairs shall be equal in quality, class and value to
the original work. Should any repairs which Tenant is required to
perform under this Section require any disruption to utilities servicing the
Building, such as gas, water, electric and communications, then such work may
only be performed under the direct management and supervision of
Landlord. Tenant’s responsibilities for the maintenance and repair of
certain portions of railroad tracks are set out in Exhibit “C-1” attached
hereto. Tenant shall be responsible for repairing any portions of the
railroad tracks included in the Exterior Common Areas as described in Section
1.2 hereof to the extent such repairs are required as a result of Tenant’s use
of such tracks. Tenant’s responsibilities for the maintenance and
repair of the overhead cranes within the Demised Premises are set out in Exhibit
“C-2” attached hereto. Should any work need to be performed by subcontractors,
those subcontractors, if acceptable to Landlord, will be promptly approved
by
Landlord provided they supply to Landlord all required insurance
verification. Upon the expiration or other termination of this Lease,
Tenant shall surrender the Demised Premises and any remaining Alterations made
by Tenant or Landlord, to Landlord, broom clean and in as good condition as
prevailed as of the Commencement Date or, with respect to Alterations, as of
the
date such Alterations were made, ordinary wear and tear excepted. In
the event Tenant fails to surrender the Demised Premises to Landlord in the
condition required hereunder or to correct any alterations made to the Demised
Premises, Landlord may cause the same to be done for Tenant, and Tenant agrees
to pay the cost thereof on demand as additional rent. The provisions
of this Section shall survive the termination or expiration of this
Lease.
10.2 Tenant
covenants and agrees to keep the Demised Premises safe, clean and to keep the
Demised Premises free from rubbish at its own expense. Tenant shall
not permit any accumulation of trash or garbage at the Demised Premises. Tenant
agrees to reimburse Landlord, as additional rent, for the cost to Landlord
of
removal from the Demised Premises and the Property of any refuse and rubbish
of
Tenant in excess of normal waste.
SECTION
11: REPAIRS AND MAINTENANCE –
LANDLORD
11.1 Tenant
shall give to Landlord prompt written notice of any damage to, or defective
condition in, the Demised Premises, the structure of the Building within or
attached to the Demised Premises, or in any part or component of the overhead
cranes, plumbing, electrical, heating, air conditioning, or other systems
serving the Demised Premises or the Building Common Areas. Landlord
shall make all replacements, renewals and repairs to the Building Common Areas
(except for those portions of the Building Common Area that are located within
portions of the Building leased to other tenants) and to the exterior of the
Building of which the Demised Premises are a part, whether structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen) and to all
gas, sewer and water laterals connecting the Building to any
services.
11.2 Landlord
agrees to maintain the Property and the Exterior Common Areas, and to cause
the
parking areas and access and ingress roads to be in good repair and to be
reasonably free of refuse, ice and snow. Provided that Tenant’s use of the
common areas is not unreasonably interfered
9
with,
Landlord may deposit accumulated ice and snow on portions of the common areas
as
may be necessary under the circumstances.
11.3 Operating
Charges, for purposes of Section 7.1 hereof, shall include all costs incurred
by
Landlord in connection with the maintenance, repair, replacement, renewal and
operation of the Building Common Areas and to the exterior of the Building
and
the Property, including all labor costs relating thereto, as required in Section
11.1 hereof, and all costs incurred in connection with the maintenance, repair
and operation of the Exterior Common Areas as required in Section 11.2 hereof.
These expenses include but are not limited to trash removal; landscaping,
including lawn maintenance and trimming; maintaining, repairing and operating
any signs for the Building; security; building receptionist; insurance premiums
for casualty, liability and rent loss insurance; maintaining the over-head
cranes; removal of snow, ice and debris from the parking areas and access and
ingress roads; cleaning the Property and the Building; window cleaning; repaving
and striping the parking areas; repairing and maintaining all curbing and
sidewalk areas and repair and maintenance of any drainage, sewer or other
utility systems servicing the Property.
11.4 Notwithstanding
any other provisions of this Section 11 to the contrary, the costs of any
repairs or maintenance caused by or resulting from the fault or negligence
of
Tenant, its contractors, invitees, agents or employees shall be Tenant’s sole
responsibility, and shall be paid for by Tenant and shall not be included in
Operating Charges. The cost of such repairs shall be billed to Tenant
by Landlord, and Tenant agrees to reimburse Landlord for the total cost of
such
repairs, as additional rent, within ten (10) days after receipt by Tenant of
an
invoice from Landlord. Tenant shall not be entitled to any partial or
total abatement of rent for periods during which such repairs are required
to be
made, whether such repairs are the responsibility of Landlord or
Tenant.
SECTION
12: ASSIGNMENT AND
SUBLETTING
12.1 This
Lease may not be encumbered or assigned by Tenant other than to an affiliate
of
Tenant (provided such affiliate’s use of the Demised Premises does not compete
with either the Landlord’s or any existing tenant’s use of the Property), and
the Demised Premises may not be sublet by Tenant, in whole or in part, without
the prior written consent of Landlord in each instance, which consent shall
not
be unreasonably withheld. This lease may not be assigned by operation
of law.
12.2 In
the event Landlord consents to an assignment or sublease of the Demised
Premises, Tenant shall not be relieved from primary liability for any of its
obligations hereunder.
SECTION
13:
UTILITIES
13.1 Landlord
agrees to install sub-meters for gas and electric service for the Demised
Premises. Upon receipt of the invoices from the utility companies
servicing the Building, Landlord shall submit to Tenant an invoice for its
proportionate share of such invoices as indicated on such sub-meters together
with supporting documentation. Tenant agrees to pay to Landlord, as
additional rent, its share of such utilities as shown on the invoices no later
than five (5) business days after receipt of such invoices from
Landlord. Landlord shall not be liable for any failure of a
utility company or governmental authority to supply such service or for any
loss, damage or injury caused by or related to such service.
10
13.2 Landlord
reserves the right to interrupt, curtail or suspend the utility services
furnished to Tenant when the necessity therefor arises by reason of accident,
emergency, mechanical breakdown, or when required by any law, order or
regulation of any federal, state, county or municipal authority, or for any
other cause beyond the control of Landlord. Landlord shall make
reasonable efforts to notify Tenant in advance of any such interruption,
curtailment or suspension of utility services, and shall use reasonable
diligence to complete all required repairs or other necessary work as quickly
as
reasonably possible so that Tenant’s inconvenience resulting therefrom may be
for as short a period of time as circumstances will reasonably
permit. No diminution or abatement of rent or other compensation
shall or will be claimed by Tenant as a result therefrom, nor shall this Lease
or any of the obligations of Tenant be affected or reduced by reason of such
interruption, curtailment or suspension.
SECTION
14: SIGNS
14.1 Except
for Tenant’s plan to install a large “American Motive Power” sign on the front
of the Building in an area approved by a variance from the Town of North
Dansville for the placement of such sign, Tenant shall neither place nor cause
to be placed any sign of any kind at, in or about the Property or the Demised
Premises, including doors and windows, except in such place or places and in
keeping with such standard as may be designated by Landlord. Any sign
approved by Landlord shall conform to and meet all requirements of the proper
governmental authorities having jurisdiction. All licenses and
permits for such signs shall be obtained by Tenant at its sole cost and
expense. Tenant shall at all times maintain any signs in good
condition and repair and shall save Landlord harmless from injury to persons
or
property arising from the erection and maintenance of any such
sign. Tenant shall at all times maintain any sign or lettering in
good condition and repair. Upon the expiration or earlier termination
of this Lease, Tenant shall remove all signs and repair any damage caused by
such removal.
SECTION
15: MECHANIC’S
LIENS
15.1 Tenant
shall indemnify and save harmless Landlord against all loss, liability, costs,
attorney’s fees, damages or interest charges as a result of any mechanic’s lien
or any other lien filed against the Demised Premises as a result of any act
or
omission of Tenant or its agents or employees or as a result of any repairs,
improvements, alterations or additions made by Tenant or its agents or
employees. Tenant shall, within thirty (30) days of the filing of any
such lien, remove, pay or cancel said lien or secure the payment of any such
lien or liens by bond or other acceptable security. In the event
Tenant fails to so dispose of any such lien, Landlord, at its option after
thirty (30) days’ written notice delivered to Tenant, may pay the said lien or
bond it at its discretion without inquiring into the validity thereof and Tenant
shall forthwith reimburse Landlord for the total expense incurred by Landlord
in
discharging or bonding the said lien, together with interest thereon at the
rate
of eighteen percent (18%) per annum (or such lesser rate of interest as may
be
the maximum permitted by applicable law) from the date of such payment, as
additional rent hereunder. Tenant shall have the right, at all times
and at its own expense, to contest and defend, on behalf of Tenant or Landlord,
any action involving the cancellation, validity or removal of such lien or
liens.
SECTION
16: WAIVER OF
SUBROGATION
16.1 Landlord
and Tenant each hereby releases the other, its officers, partners, directors,
employees and agents, from liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property covered by valid
11
and
collectible fire insurance with standard extended coverage endorsement, even
if
such fire or other casualty shall have been caused by the fault or negligence
of
the other party, or anyone for whom such party may be
responsible. However, this release shall apply only to loss or damage
(a) actually recovered from an insurance company and (b) occurring during
such
time as the releasor’s fire or extended coverage insurance policies shall
contain a clause or endorsement to the effect that any such release shall
not
adversely affect or impair such policies, or prejudice the right of the releasor
to recover thereunder. Landlord and Tenant each agrees that any fire
and extended coverage insurance policies carried by each of them respectively
and covering the Demised Premises or their contents will include such a clause
or endorsement as long as the same shall be obtainable without extra cost,
or,
if extra cost shall be charged therefor, so long as the other party pays
such
extra cost. If an extra cost shall be chargeable therefor, each party
shall advise the other of the amount of the extra cost.
SECTION
17:
LIABILITY
17.1 Landlord
and the Landlord’s agents and employees shall not be liable for any and all
claims for damages to persons and property sustained by Tenant or Tenant’s
agents, employees, assigns, licensees, concessionaires, invitees or any person
claiming through said parties resulting from any accident or occurrence in
or
upon the Demised Premises, and Tenant waives any and all claims for damages
to
person or property sustained by Tenant or Tenant’s agents, employees and
assignees, unless such damage is caused by or due to the negligence of Landlord
or Landlord’s agents, employees and invitees. Said waiver shall
include, but not be limited to, claims for damage to person or property,
including product and other contents, resulting from any equipment or
appurtenance out of repair, defective electrical, heating, mechanical, air
conditioning, plumbing, sewer, water system or installations or from the
operation of said equipment or installation, or damage by broken glass, ice,
water, snow, gas entering the Demised Premises, or for the acts, omissions
or
negligence of trespassers.
17.2 Tenant
shall be liable for any damage to the Demised Premises or property therein
which
may be caused by its act or negligence or the acts or negligence of its agents,
employees, assigns, licensees, concessionaires, invitees or any person claiming
through said parties and Landlord may, at its option, after the expiration
five
(5) business days (or a shorter period if an emergency exists) after receipt
by
Tenant of written notice from Landlord of such damage, and Tenant’s failure to
undertake repair of such damage, repair such damage and Tenant shall thereupon
reimburse and compensate Landlord as additional rent within thirty (30) days
after rendition of a statement by Landlord for the total cost of such repair
and
damage. Tenant hereby indemnifies and agrees to defend and hold
Landlord harmless and free from damages sustained by person or property and
against all claims of third persons for damages arising out of the use by such
third party of the Demised Premises and out of Tenant’s use of the Demised
Premises and the Common Areas and for all damages and moneys paid out by
Landlord in settlement of any claims or judgments, as well as for all expenses
and attorney’s fees incurred in connection therewith unless such damages are
caused by the negligence of Landlord.
SECTION
18: COMPLIANCE WITH LAWS;
ENVIRONMENTAL LAWS
18.1 Generally. During
the term of this Lease, Tenant shall comply with all requirements of the Fire
Underwriters of any duly constituted public authority, and with the requirements
of any Federal, State, County or local law, regulation or ordinance and any
federal guidelines or codes
12
applicable
to the ownership, control, use and occupancy of the Demised Premises and
any
repairs or work performed on the Demised Premises by Tenant, and Tenant agrees
to indemnify Landlord and save Landlord harmless from and against any penalty,
damage or charge imposed for any violation by Tenant and its successors,
assigns, sublessees, licensees, agents and employees during the term of this
Lease. Tenant agrees to provide Landlord with copies of Tenant’s safety and
evacuation plans.
18.2 Environmental
Laws.
(a) Definitions
“Environmental
Laws” shall mean all federal, state and local statutes, rules, regulations and
ordinances pertaining to protection of public health and the
environment.
“Environmental
Permits” shall mean any and all permits, licenses, registrations or other
authorizations required by Environmental Laws in connection with the, use or
operation of the Demised Premises.
“Hazardous
Substances” shall include flammable explosives, radon, radioactive materials,
asbestros, urea formaldehyde foam insulation, polychlorinated wastes, toxic
substances, biphenyl, petroleum and petroleum products, methane, hazardous
materials or related materials, including but not limited to
those substances listed or defined in 42 U.S.C. §
9601(14), 42 U.S.C. §6903(5) or New York’s Environmental Conservation Law and
any other applicable Environmental Law and regulations promulgated thereunder.
“Release” shall have the meaning given to it under 42 U.S.C. §
9601(22).
(b) The
Parties agree and acknowledge that:
(1) Landlord
has provided to Tenant a certain Phase I Environmental Assessment prepared
by
XxXxxxx Associates, P.C., dated November, 2004 and a certain Phase II
Environmental Site Assessment: Site Characterization prepared by
XxXxxxx Associates, P.C. dated August, 2005 (collectively, the “Environmental
Reports”) relating to the Demised Premises, which Environmental Reports reveal
the presence of hazardous substances on portions of the Demised
Premises. Tenant may rely on these Reports as a basis for defining
the environmental condition of the Demised Premises as of the Commencement
Date
for purposes of allocating potential environmental liabilities but shall not
be
limited to the use of these reports to establish any such
allocation.
(2) Primarily
due to the fact that investigations have been recently conducted as set forth
in
the Environmental Reports, Landlord has denied Tenant’s request to perform an
additional environmental investigation (“Baseline Investigation”) prior to the
Commencement Date to further define and delineate the nature and extent of
the
presence of hazardous substances at the Demised Premises.
(c) Tenant
covenants and agrees as follows:
(1) Tenant
shall, in its use and occupancy of the Demised Premises, comply in all material
respects with all applicable Environmental Laws and obtain and comply with
all
required Environmental Permits. All such permits shall be made
available for Landlord’s review during
13
Tenant’s
normal business hours. Tenant agrees to provide Landlord upon
Landlord’s request with all MSDS sheets related to any product on
site.
(2) Tenant
shall not use, generate, treat, store or dispose of any Hazardous Substance
on
the Demised Premises except those necessary to, or customarily used in, the
operation of the Tenant’s business (including those present in maintenance and
repair, landscaping or office equipment or supplies) and only in compliance
with
Environmental Laws.
(3) Tenant
shall take all necessary precautions to prevent a Release of a Hazardous
Substance at the Demised Premises, and shall promptly address and fully
remediate, at Tenant’s expense, any Release which does occur. In the
event a Release or the threat of a Release occurs which requires reporting
under
any Environmental Law, Tenant shall provide Landlord with a copy of any such
notification.
(4) Tenant
shall indemnify, defend and hold harmless Landlord from and against any and
all
claims, actions, damages, costs, demands or other liabilities, including
attorneys’ fees and expert witness fees (collectively, “Losses”) caused by or
resulting from the use, storage or disposal and Release of any Hazardous
Substance which were both (the use, storage or disposal and the Release) caused
by Tenant during the course of Tenant’s occupancy of the Demised
Premises. .
(d) Landlord
covenants and agrees as follows:
(1) Landlord
has provided Tenant with all documents and information known to Landlord or
its
officers, directors, shareholders, agents, consultants or attorneys, regarding
the environmental condition of the property and all existing, past, or required
Environmental Permits.
(2) Except
for those Losses described in 18(c)(4) and any claims for personal injuries
asserted by employees of Tenant, Landlord shall indemnify, defend and hold
harmless Tenant from and against any and all Losses caused by or resulting
from
the presence at, on or under the Demised Premises of any Hazardous Substance
regardless of when such Losses occur.
(3) In
the event Landlord disputes the responsibility for any Losses, Landlord shall
bear the burden of proof and responsibility. If Landlord can prove
that any portion of any Losses are or were due to an act of the Tenant,
responsibility for any such Losses shall be equitably allocated between the
Parties.
(e) All
representations, covenants, agreements and indemnifications set forth in this
Section 18 shall survive the termination of this Lease.
SECTION
19: RIGHT OF
ENTRY
19.1 Landlord
and its authorized agents and regulatory agencies shall have the right to enter
the Demised Premises during normal working hours upon reasonable notice to
Tenant (except in the case of emergency, in which event no notice shall be
required) for the purpose of inspecting the general condition and state of
repair of the Demised Premises and to perform any of Landlord’s repair and
maintenance obligations hereunder.
14
19.2 Landlord
and its authorized agents shall have the right to enter the Demised Premises
during normal working hours upon reasonable notice to Tenant accompanied by
a
representative of Tenant for the showing of the Demised Premises to prospective
tenants or purchasers.
19.3 Except
under the terms set forth in the preceding sections 19.1 and 19.1, Landlord
and
its agents, including all employees and agents of LMC Industrial Contractors,
Inc. and/or LMC Power Systems, Inc., shall not enter the Demised Premises
without permission of Tenant, and Tenant shall have the right to fence, lock
and
secure the Demised Premises against unauthorized entry.
SECTION
20:
DEFAULT
20.1 If
any one or more of the following events (herein sometimes called “events of
default”) shall happen:
(a) If
default shall be made in the due and punctual payment of any rent or additional
rent payable under this Lease or any part thereof when and as the same shall
become due and payable, and such default shall continue for a period of ten
(10)
days after the date on which such payment is due to Landlord; or
(b) If
default shall be made by Tenant in the performance or compliance with any of
the
agreements, terms, covenants or conditions in this Lease provided, other than
as
referred to in the foregoing subparagraph (a) of this Section 20.1, for a period
of thirty (30) days after written notice from Landlord to Tenant specifying
the
items in default, or in the case of a default of a covenant which cannot with
due diligence, be cured within said thirty (30) day period, the time of Tenant
within which to cure the same shall be extended for such time as may be
necessary to cure the same with all due diligence, provided Tenant commences
promptly and proceeds diligently to cure the same, and further provided that
such period of time shall not be so extended as to subject Landlord to any
criminal liability or forfeitures; or
(c) If
Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated
a
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or future applicable federal, state or
other
statute or law, or shall seek or consent to or acquiesce in the appointment
of
any bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of
all
or any substantial part of its properties or of the Demised Premises;
or
(d) If
within sixty (60) days after the commencement of any proceeding against Tenant
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future federal, state or other bankruptcy or
insolvency statute or law, such proceeding shall not have been dismissed or
if,
within sixty (60) days after the appointment, without the consent or
acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or
of
all or substantially all of its properties or of the Demised Premises such
appointment shall not have been vacated or stayed on appeal or otherwise, or
if,
within sixty (60) days after the expiration of any such stay, such appointment
shall not have been vacated.
Then
and
in any such event Landlord at any time thereafter may give written notice to
Tenant specifying such event of default or events of default and stating that
this Lease and
15
the
term
hereby demised shall expire and terminate on the date specified in such notice,
which shall be at least three (3) days after the giving of such notice, and
upon
the date specified in such notice this Lease and the term hereby demised
and all
rights of Tenant under this Lease shall expire and terminate, and Tenant
shall
remain liable as hereinafter provided.
20.2 Upon
any such expiration or termination of this Lease, Tenant shall quit and
peacefully surrender the Demised Premises to Landlord, and Landlord, upon or
at
any such expiration or termination, may without further notice enter upon and
re-enter the Demised Premises and possess and repossess itself thereof, by
force, summary proceedings, ejectment or otherwise, and may dispossess Tenant
and remove Tenant and all other persons and property from the Demised Premises
and may have, hold and enjoy the Demised Premises and the right to receive
all
rental income of an from the same. In the event of any default as set
forth in paragraphs (c) and (d) of Section 20.1 above shall occur, Tenant agrees
that it will either assume or reject this Lease within sixty (60) days after
the
filing of the proceeding described in said paragraphs. In the event
this Lease is not assumed within said sixty (60) day period, then Tenant deems
this Lease rejected.
20.3 In
case of any such termination, the rents and all other charges required to be
paid up to the time of such termination, re-entry or dispossess, shall be paid
by Tenant and Tenant shall also pay to Landlord all reasonable expenses which
Landlord may then or thereafter incur for legal expenses, attorney’s fees,
brokerage commissions and all other reasonable costs paid or incurred by
Landlord for restoring the Demised Premises to good order and condition,
ordinary wear and tear excepted. Landlord may, at any time and from
time to time, relet the Demised Premises, in whole or in part, for any rental
then obtainable either in its own name or as agent of Tenant, for a term or
terms which, at Landlord’s option, may be for the remainder of the then current
term of this Lease or for any longer or shorter period.
20.4 If
this Lease be terminated as aforesaid, Tenant nevertheless covenants and agrees
notwithstanding any entry or re-entry by Landlord whether by summary proceeding,
termination or otherwise, to pay and be liable for on the days originally fixed
herein for the payment thereof, amounts equal to the several installments of
rent and other charges reserved as they would, under the terms of this Lease,
become due if this Lease had not been terminated or if Landlord had not entered
or re-entered as aforesaid, and whether the Demised Premises be relet or remain
vacant in whole or in part or for a period less than the remainder of the term,
and for the whole thereof, but in the event the Demised Premises be relet by
the
Landlord, Tenant shall be entitled to a credit (but not in excess of the rent
or
other charges reserved under the terms of this Lease) in the net amount of
rent
received by Landlord in reletting the Demised Premises or fees received by
Landlord in operating the Demised Premises after deduction of all expenses
and
costs incurred or paid as aforesaid in reletting or operating the Demised
Premises and in collecting the rent or fees in connection
therewith. Suit or suits for the recovery of the deficiency or
damages referred to in this Section 20.4 or for any installment or installments
of fixed rent or additional rent hereunder, or for a sum equal to any such
installment or installments, may be brought by Landlord at once or from time
to
time at Landlord’s election, and nothing in this Lease contained shall be deemed
to require Landlord to await the date whereon this Lease or the term hereof
would have expired by limitation had there been no such default by Tenant or
no
such cancellation or termination.
20.5 Each
right and remedy provided for in this Lease shall be cumulative and shall be
in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Landlord or
16
Tenant
of
any one or more of the rights or remedies provided for in this Lease or now
or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the party in question of any
or
all other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise.
20.6 Tenant
hereby expressly waives any and all rights of redemption granted by or under
any
present or future laws, in the event of eviction or dispossession of Tenant
by
Landlord under any provisions of this Lease. No receipt of moneys by
the Landlord from the Tenant, after the termination in any way of this Lease
or
after the giving of any notice, shall reinstate, continue or extend the term
of
this Lease, or affect any notice given to Tenant prior to the receipt of such
money, it being agreed that after the service of notice or the commencement
of a
suit, or after final judgment for possession of the Demised Premises, the
Landlord may receive and collect any rent due, and the payment of said rent
shall not waive or affect said notice, said suit or said judgment.
20.7 Tenant
covenants and agrees that, except as maybe otherwise provided for in this Lease,
if Tenant shall at any time fail to make any payment or perform any other act
on
its part to be made or performed under this Lease, the Landlord after seven
(7) days’ written notice received by Tenant (or a shorter period in
the event of an emergency) may, but shall not be obligated to, and without
waiving or releasing Tenant from any obligation of Tenant under this Lease,
make
such payment or perform such other act to the extent the Landlord may deem
desirable, and in connection therewith to pay reasonable expenses and employ
counsel. All sums so paid by the Landlord and all expenses in
connection therewith, together with interest thereon at the rate of eighteen
percent (18%) per annum (or such lesser rate of interest as may be the maximum
permitted by applicable law) from the date of such payment, shall be deemed
additional rent hereunder and be payable to the Landlord on demand.
20.8 In
the event of a default or threatened default by Tenant of any of the covenants
or provisions of this Lease, Landlord shall have the right to enjoin any such
default or threatened default.
20.9 Landlord
and Tenant each covenants and agrees to pay on written demand, the other’s
expenses, including reasonable attorney’s fees, to the extent incurred in
successfully enforcing any obligations of the other under this Lease or in
curing any default by the other under this Lease.
SECTION
21: DAMAGE AND
DESTRUCTION
21.1 If
the Demised Premises shall be damaged by fire or other causes, without default
or neglect of Tenant, its servants, employees, agents, visitors, or licensees,
but are not wholly untenantable, the damage shall be promptly repaired by
Landlord at its own expense. In such event this Lease shall not
terminate, and shall remain in full force and effect, but the rent due by Tenant
shall xxxxx in proportion to the loss of use by the Tenant of the Demised
Premises while the Demised Premises are being repaired. Due allowance
shall be made for delays from labor troubles, material shortages, or any other
causes, whether similar or dissimilar to the foregoing, beyond Landlord’s
control. If, however, the Demised Premises are rendered wholly
untenantable by fire or other causes, and Landlord does not intend to rebuild
the same, or if the Building of which the Demised Premises are a part shall
be
so damaged, whether the Demised Premises themselves are damaged or not, that
Landlord determines to demolish or rebuild the Building, then in any of such
events Landlord may, within sixty (60) days after such damage or destruction,
give Tenant notice in writing
17
of
its
decision, and thereupon this Lease shall terminate thirty (30) days after
such
notice is given, and Tenant shall immediately vacate the Demised Premises
and
surrender the same to Landlord, paying rent to the time Demised Premises
were
rendered wholly untenantable, or, if the Demised Premises were not rendered
wholly untenantable, to the time the Demised Premises are surrendered to
Landlord. If, however, within said sixty (60) days Landlord shall
notify Tenant that it intends to repair or rebuild the Demised Premises,
then
this Lease shall not terminate but shall remain in full force and effect,
and
Landlord shall promptly repair and/or rebuild the Demised Premises at its
expense (except that Landlord shall not be responsible for repairing or
replacing Tenant’s property in the Demised Premises) and the rent the rent due
by Tenant shall xxxxx in proportion to the loss of use by the Tenant of the
Demised Premises while the Demised Premises are so being
repaired.
21.2 No
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises. Tenant hereby waives the provisions
of Section 227 of the New York Real Property Law or any law of like impact
now
or hereafter in effect.
SECTION
22: EMINENT
DOMAIN
22.1 If
the fee of all or any portion of the Building and land underlying the same
is
condemned or appropriated or purchased in lieu thereof by any competent
authority, then, and in that event, the term of this Lease shall cease and
terminate on the date possession is to be given to the condemning
authority.
22.2 In
the event of any condemnation or taking as aforesaid, whether whole or partial,
Tenant shall have the right to claim and recover from the condemning authority,
but not from Landlord, such compensation as may be separately awarded or
recoverable by the Tenant in Tenant’s own right, including any and all damage to
Tenant’s business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in the loss or removal of Tenant’s
merchandise, furniture and fixtures and leasehold improvements which have not
become a part of the realty. Any award for the land, building and
improvements upon the Premises, and for damages to the residue, shall belong
to
the Landlord and the Tenant shall not be entitled to any part
thereof.
SECTION
23: VACATION OF
PREMISES
23.1 Tenant
shall and will, on the last day of the term hereof, and upon any earlier
termination of this Lease, or upon re-entry by Landlord upon the Demised
Premises pursuant to Section 19 hereof, surrender and deliver up the Demised
Premises into the possession and use of Landlord without fraud or delay in
good
order, condition and repair, reasonable wear and tear excepted (except as may
otherwise be provided for in this Lease), free and clear of all lettings and
occupancies other than subleases then terminable at the option of Landlord
thereof, or subleases to which Landlord shall have specifically consented,
and
free and clear of all liens and encumbrances other than those, if any, created
by Landlord. In the event Tenant fails to surrender the Demised
Premises to Landlord in the condition required hereunder, Landlord may cause
the
same to be done for Tenant, and Tenant agrees to pay the cost thereof as
additional rent within five (5) days after receipt of an invoice from
Landlord.
18
23.2 The
provisions of this Section 23 shall survive the expiration or any termination
of
this Lease.
SECTION
24: INVALIDITY OF PARTICULAR
PROVISIONS
24.1 If
any term or provision of this Lease or the application thereof to any person
or
circumstance shall, to any extent, be invalid or unenforceable, the remainder
of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which such term or provision his held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
SECTION
25:
NOTICES
25.1 All
notices, demands and requests required under this Lease shall be in
writing. All such notices, demands and requests shall be deemed to
have been properly given if served personally or sent by United States
Registered or Certified Mail, postage prepaid, addressed to Landlord
at:
0000
Xxxxxx Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Attention: Xx.
Xxxxxxx Xxxxxxxx
and
to
Tenant
at: American
Motive Power, Inc.
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxx and Xxxxx
X. Xxxxx
or
such
other persons and addresses as Landlord and Tenant may from time to time
designate by written notice addressed to the other. Notices, demands
and requests which shall be served by Registered or Certified mail upon Landlord
of Tenant, in the manner aforesaid, shall be deemed sufficiently served or
given
for all purposes here under at the time such notice, demand or request shall
be
actually delivered to the Landlord or the Tenant, as the case may
be.
SECTION
26: QUIET
ENJOYMENT
26.1 Tenant,
upon paying the rent, additional rent and charges herein provided for and
observing and keeping all covenants and conditions of this Lease on its part
to
be kept, shall quietly have and enjoy the Demised Premises during the term
of
this Lease without hindrance of molestation by anyone, except as otherwise
provided herein.
SECTION
27:
SUBORDINATION
27.1 Tenant
agrees that this Lease is automatically subject and subordinate to any and
all
ground or underlying leases and to any and all mortgages or consolidated
mortgages, deeds of trust, or renewals, modifications, and extensions thereof,
or to any other forms or methods of financing or refinancing of the Property
of
which the Demised Premises are a part, or of any part of said Property, whether
such mortgages, deeds of trust, or other forms or methods of financing or
refinancing are now or are hereafter executed, delivered, and recorded.
Notwithstanding such subordination to any such subsequent mortgage, Tenant's
right to quiet possession of the Premises shall not be disturbed if
19
Tenant
is
not in default and so long as Tenant pays the rent and observes and performs
all
of the provisions of this Lease, unless this Lease is otherwise terminated
pursuant to its terms. Tenant does herein covenant and agree that it will,
upon
demand at any time, execute, acknowledge, and deliver any and all instruments
that may be necessary or proper to further evidence this subordination,
including any reasonable subordination, non-disturbance and attornment agreement
and any estoppel certificate requested by Landlord’s lender. If Tenant shall
fail at any time to execute and deliver any such estoppel certificate or
subordination instruments, upon request by Landlord, its assigns or successors,
Landlord, its assigns or successors, in addition to any other remedies available
to it, may execute, acknowledge and deliver such subordinate instruments
as the
attorney-in-fact of Tenant and in Tenant’s name and place, and for such purpose
Tenant does hereby irrevocably appoint Landlord, its assigns or successors,
as
its attorney-in-fact.
SECTION
28: MISCELLANEOUS
PROVISIONS
28.1 Recordation. At
the request of Landlord, Tenant agrees to execute a Memorandum of Lease in
compliance with Section 291-C of the Real Property Law of the State of New
York
for the purpose of recording this Lease in the Xxxxxxxxxx County Clerk’s
Office. This Memorandum of Lease may be recorded by either
party.
28.2 Captions. The
captions of this Lease are for convenience and reference and in no way define,
limit or describe the scope or intent of this Lease, nor in any way affect
this
Lease.
28.3 New
York Laws to Govern
Construction and Enforcement. This Lease shall be governed by
and construed and enforced in accordance with the laws of the State of New
York
without regard or reference to its conflict of laws principles. Tenant hereby
consents to the jurisdiction of any local, state or federal court selected
by
Landlord that is located in Xxxxxxxxxx or Xxxxxx County, New York, and agrees
not to disturb such choice of forum by Landlord.
28.4 Entire
Agreement. Upon the execution and delivery hereof, this
instrument shall constitute the entire agreement between Landlord and Tenant
for
the Demised Premises. Tenant agrees that in signing this Lease it is
not relying on any warranties, representations or agreements other than those
expressly contained in this Lease. This Lease cannot be changed
orally, but only by an agreement in writing and signed by the party against
whom
enforcement of any waiver, change, modification or discharge is
sought.
28.5 Brokers
Commission.
Landlord and Tenant each covenants and represents that it has not dealt with
any
real estate broker in connection with this Lease and agrees to indemnify and
save the other harmless against any and all other claims for brokerage
commissions.
28.6 Successors
and
Assigns. The covenants and agreements herein contained shall
bind and insure to the benefit of Landlord, its successors and assigns, and
Tenant, its successors and assigns, except as otherwise provided
herein.
28.7 Certificates. Tenant
agrees at any time and from time to time, upon not less than ten (10) days’
prior notice by Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), the commencement date,
and the dates to which the rent and other charges have been paid in advance,
if
20
any,
and
stating whether or not to the best knowledge of the signer of such certificate
Landlord is in default in performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such default of which
the
signer may have knowledge, it being intended that any such statement delivered
pursuant to this Section may be relied upon by any lender and by any prospective
purchaser of the fee of the Premises or of Landlord’s interest in this
Lease.
28.8 Force
Majeure. In the event that either Landlord or Tenant shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of Act of God, strikes, lockouts, labor troubles, inability
to procure materials (including energy), power, casualty, inclement weather,
restrictive governmental laws, orders or regulations, riots, insurrection,
war
or other reason of a like nature not the fault of the party delayed in
performing work or doing acts required under the terms of this Lease, then
performance of any such act shall be extended for a period equivalent to the
period of such delay. All claims by Landlord or Tenant for an
extension of time shall be made in writing to the other no more than thirty
(30)
days after the occurrence of the delay; otherwise the delay shall be
waived. In the event of a continuing cause of delay, only one claim
is necessary. The provisions of this Section shall not operate to
excuse Tenant from prompt payment of rent, additional rent or any other payments
required by the terms of this Lease.
28.9 Waiver. No
waiver of any condition or legal right or remedy shall be implied by the failure
of either Landlord or Tenant, as the case may be, to declare a default or a
forfeiture, or for any other reason, and no waiver of any condition or covenant
shall be valid unless it is in writing signed by the party against whom such
waiver is being claimed, nor shall the waiver of a breach of any condition
be
claimed or pleaded to excuse a future breach of the same condition or covenant
or any other condition or covenant.
28.10 Authority. Landlord
and Tenant each hereby warrant and represent that it has the necessary power
and
authority and has taken all necessary action to enter into this Lease and to
perform all of the covenants, terms and conditions on its part to be performed
as set forth in this Lease.
28.11 Rules
and
Regulations. Landlord reserves the right to adopt and
promulgate from time to time reasonable rules and regulations and to amend
and
supplement the same, applicable to the occupancy of the
Building. Such rules and regulations shall not prohibit or interfere
with the essential activities required by Tenant to operate the
Business. Notice of such rules and regulations and supplements
thereof, if any, shall be given to Tenant. Upon receipt of such
notice, Tenant agrees to abide by such rules and regulations as if fully set
forth herein.
28.12 Counterparts. This
Lease may be signed in counterparts, and each counterpart, once signed and
delivered is deemed to be an original; however, all of the counterparts shall
constitute one single instrument.
28.13 Non-Discrimination. Tenant
agrees that it will not discriminate against any person or business or applicant
for employment or against any person or business in the letting of contracts
for
work performed at the Demised Premises because of race, color, religion, sex,
national origin or income level.
21
28.14 Right
of
Set-Off. Tenant may set off against rent or any other amounts
payable to Landlord under the terms of this Lease any amounts owed by Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx and Xxxx Xxxxx (collectively, the “Shareholders”)
or any of them to MISCOR Group, Ltd. pursuant to the terms of the AMP Stock
Purchase Agreement between the Shareholders and MISCOR entered into the same
date as this Lease. Tenant may only exercise its rights of set-off
for amounts which a court of competent jurisdiction finds due from the
Shareholder(s) to MISCOR by a final unappealable order.
IN
WITNESS WHEREOF, Landlord
and Tenant have caused this Lease to be signed as of the day and year first
above written.
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Landlord:
|
||
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DANSVILLE
PROPERTIES,
LLC
|
||
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By:
|
||
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Xxxxxxxx
X. Xxxxxxxxxxxx
|
||
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Its:
Sole Member
|
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Tenant:
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AMERICAN
MOTIVE POWER,
INC.
|
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By:
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Xxxx
X. Xxxxxxx
|
||
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Its: President
|
||
22
EXHIBIT
“A”
MAP
23
EXHIBIT
“B”
LANDLORD’S
WORK
|
·
|
Communications
|
||
|
O
|
Landlord
will work with service provider-jointly with Tenant-to segregate
services
in a mutually cost effective manner
|
||
|
§
|
ISP
services
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||
|
§
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Telephone
services
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||
|
O
|
Landlord
will work with Tenant/Technology personnel to segregate joint business
operations currently serviced by consolidated server technologies
to
insure complete migration and severance of service of and for information
from the AMP network
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||
|
O
|
Provisions
will be made by Landlord to provide incoming services for IT and
telephone
services by February 1, 2008
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||
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·
|
Roof
|
||
|
O
|
Landlord
will repair roof sections over Demised Premises to ensure a “dry shell”
for Tenant
|
||
|
O
|
Roof
repairs will be completed by September 30, 2008
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||
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·
|
Utility
Metering
|
||
|
O
|
Landlord
will make every effort to expeditiously insure the installation
of
metering devices for the various facility services including gas,
electricity, and water
|
||
|
O
|
Tenant
will pay for pro-rata services based on square footage until final
installation and commissioning of metering device
|
||
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O
|
Utility
Metering will be completed by April 1, 2008
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||
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·
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Air
Compressor
|
||
|
O
|
Landlord
and Tenant will engineer a solution to accurately measure the use
by
Tenant and other tenants of the air compressor which is located
in the
Demised Premises, so that the costs of operating the air compressor
can be
allocated equitably
|
||
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O
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Tenant
shall retain the right to obtain its own air compressor and shift
to
Landlord all responsibility for the current air
compressor
|
||
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·
|
Driveway/Parking
Area
Repairs/Replacement
|
||
|
O
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Repair
or Replacement decisions based upon judgment of
Landlord
|
||
|
O
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Driveway/Parking
repairs/replacement will be completed on as needed
basis
|
||
24
EXHIBIT
“C-1”
TENANT’S
RESPONSIBILITIES FOR
MAINTENANCE
AND
REPAIR OF RAILROAD
TRACKS
|
o
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Track
Space-Interior/Exterior
|
|||||||
|
§
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Existing
track space must accommodate multiple businesses
|
|||||||
|
§
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It
is assumed that Tenant’s requirements will be the
greatest
|
|||||||
|
o
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Tenant
is responsible for all track maintenance in following areas, as
designated
on Exhibit “A”
|
|||||||
|
·
|
3-1
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Track
going in to bay 3 first track
|
||||||
|
·
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3-2
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Track
going in to Shot Blast
|
||||||
|
·
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6-1
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First
track through Bay 6 Door 1
|
||||||
|
·
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6-2
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Second
track through Bay 6 Door 2
|
||||||
|
·
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6-3
|
Third
Track through Bay 6 Door 3
|
||||||
|
·
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6-4
|
Fourth
Track through Bay 6 Door 4
|
||||||
|
·
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6-5
|
Wash
Track from South switch to North Switch
|
||||||
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§
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All
maintenance work approved by Landlord
|
|||||||
|
§
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All
sub-contractor insurances required
|
|||||||
|
o
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All
interior track extensions to be approved by Landlord
|
|||||||
|
o
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Existing
track property of Landlord
|
|||||||
|
o
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Tenant
shall have access to use any and all tracks on the Property to
move or
store locomotives, but the following track serving facility Bays
1, 8, and
9, as designated on Exhibit “A”, must be kept clear or reasonably
accessible to accommodate other tenants and Tenant will be responsible
for
movement of materials in/out as required
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|||||||
|
·
|
1-1
|
|||||||
|
·
|
8-1
|
|||||||
|
·
|
9-1
|
|||||||
25
EXHIBIT
“C-2”
TENANT’S
RESPONSIBILITIES FOR
MAINTENANCE
AND
REPAIR OF OVERHEAD
CRANES
|
·
|
Crane
maintenance within the Demised Premises
|
|||
|
§
|
Electrical
issues, inspections, routine and major replacements-
|
|||
|
·
|
General
repairs on Landlord
|
|||
|
·
|
Repairs
related to improper rigging, misuse, or other non-general will
be Tenant’s
responsibility
|
|||
|
o
|
All
work related to misuse is either performed by or approved by
Landlord
|
|||
|
o
|
Tenant
shall provide all outside service records to Landlord
|
|||
|
§
|
Tenant
must document all users/employees are initially and regularly trained
in
proper use and operation
|
|||
|
§
|
Tenant
must carry insurances that names Landlord as an insured under the
policy
at policy limits and by a carrier acceptable to
Landlord
|
|||
|
§
|
Landlord
will log and keep records related to servicing of
cranes
|
|||
26
LANDLORD
GUARANTY
In
order
to induce the Tenant to enter into this Lease, the undersigned (the “Guarantor”)
hereby guarantees the payment and performance of all the Landlord’s obligations
contained in Section 18(d)(2) of this Lease. This Guaranty is an
absolute and unconditional guarantee of payment and of
performance. It shall be enforceable against Guarantor without the
necessity of any suit or proceedings on Tenant’s part of any kind or nature
whatsoever against Landlord and without the necessity of any notice of
non-payment, non-performance or non-observance or of any notice of acceptance
of
this Guaranty or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly
waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall not be terminated,
affected, diminished or impaired by reason of the assertion or the failure
to
assert by Tenant against Landlord any of the rights or remedies reserved to
Tenant pursuant to the provisions of this Lease. This Guaranty shall
be binding upon Guarantor and his successors and assigns, and shall inure to
the
benefit of Tenant and its successors and assigns. If litigation is
brought to enforce this Guaranty, the prevailing party shall recover its
reasonable attorney fees, court costs and expenses from the other
party.
|
Dated:
|
|||
|
Xxxxxxxx
Xxxxxxxxxxxx
|
|
STATE
OF NEW YORK
|
)
|
|
|
COUNTY
OF XXXXXXXXXX
|
)
|
The
foregoing instrument was executed before me this 8th day of January, 2008,
by
Xxxxxxxx Xxxxxxxxxxxx.
|
,
Notary Public
|
|||
|
My
commission expires:
|
|||
27
TENANT
GUARANTY
In
order to induce the Landlord to
enter into this Lease, the undersigned (the “Guarantor”) hereby guarantees the
payment and performance of all the Tenant’s obligations contained in this
Lease. This Guaranty is an absolute and unconditional guarantee of
payment and of performance. It shall be enforceable against Guarantor
without the necessity of any suit or proceedings on Landlord’s part of any kind
or nature whatsoever against Tenant and without the necessity of any notice
of
non-payment, non-performance or non-observance or of any notice of acceptance
of
this Guaranty or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly
waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall not be terminated,
affected, diminished or impaired by reason of the assertion or the failure
to
assert by Landlord against Tenant any of the rights or remedies reserved to
Landlord pursuant to the provisions of this Lease. This Guaranty
shall be binding upon Guarantor and its successors and assigns, and shall inure
to the benefit of Tenant and its successors and assigns. If
litigation is brought to enforce this Guaranty, the prevailing party shall
recover its reasonable attorney fees, court costs and expenses from the other
party.
|
Dated:
|
||||
|
Xxxx
X. Xxxxxxx, President and CEO
|
||||
|
STATE
OF NDIANA
|
)
|
|
|
COUNTY
OF ST. XXXXXX
|
)
|
The
foregoing instrument was acknowledged before me this 8th
day of January,
2008, by Xxxx X. Xxxxxxx, the President of MISCOR Group, Ltd., an Indiana
corporation, on behalf of the corporation.
|
Xxxxx
X. Xxxxx, Notary Public
|
||||
|
My
commission expires:
|
||||
28
