EXHIBIT 10.17
AMENDED AND RESTATED
LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of the 29th day of September, 1997, by and
between COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY, a public benefit
corporation duly existing under the laws of the State of New York with offices
at Xxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (the "Agency") and CVC
PRODUCTS, INC., a New York Corporation with its offices at 000 Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, Title 1 of Article 18-A of the General Municipal Law of the State
of New York (the "Act") was duly enacted into law as Chapter 1030 of the Laws of
1969 of the State of New York (the "State"); and
WHEREAS, the Act authorizes the creation of industrial development
agencies for the benefit of the several counties, cities, villages and towns in
the State and empowers such agencies, among other things, to acquire, construct,
reconstruct, lease, improve, maintain, equip and sell land and any building or
other improvement, and all real and personal properties, including, but not
limited to, machinery and equipment deemed necessary in connection therewith,
whether or not now in existence or under construction, which shall be suitable
for manufacturing, warehousing, research, commercial or industrial facilities,
including industrial pollution control facilities, in order to advance job
opportunities, health, general prosperity and the economic welfare of the people
of the State and to improve their standard of living; and
WHEREAS, the Act further authorizes each such agency to lease any or all
of its facilities at such rentals and on such other terms and conditions as it
deems advisable, to issue its bonds for the purpose of carrying out any of its
corporate purposes and, as security for the payment of the principal and
redemption price of, and interest on, any such bonds so issued and any
agreements made in connection therewith, to mortgage any or all of its
facilities and to pledge the revenues and receipts from the leasing of its
facilities; and
WHEREAS, pursuant to and in connection with the provisions of the Act,
Chapter 55 of the Laws of 1972 of the State (collectively, the "Act") created
the Agency which is empowered under the Act to undertake the providing,
financing and leasing of the facility described below; and
WHEREAS, the parties hereto entered into a certain Lease Agreement dated
on or about September 16, 1974 in connection with an eight-acre parcel of land
at 000 Xxx Xxxx, Xxxx of Rochester, Monroe County, New York, for purposes of the
constructing
an approximately 104,500 square foot office and manufacturing building; (the
"Facility"); and
WHEREAS, the parties are desirous of, and do hereby modify, amend and
restate the September 16, 1974 Lease Agreement all as set forth hereinbelow; and
WHEREAS, the Agency has determined that the refinancing of the Facility
will accomplish, in part, its public purposes; and
WHEREAS, the Agency proposes to amend, restate and lease the Facility to
the Company, and the Company desires to rent the Facility from the Agency, upon
the terms and conditions hereinafter set forth in this Amended and Restated
Lease Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto hereby formally covenant,
agree and bind themselves as follows:
ARTICLE I
REPRESENTATIONS AND COVENANTS
Section 1.1. Representations and Covenants of the Agency.
The Agency makes the following representations and covenants as the basis
for the undertakings on its part herein contained:
(a) The Agency is duly established under the provisions of the Act and has
the power to enter into the transaction contemplated by this Lease Agreement and
to carry out its obligations hereunder. Based upon the representations of the
Company as to the utilization of the Facility, the Facility is of a character
included in the definition of "Project" in the Act.
(b) The Agency has been duly authorized to execute and deliver this Lease
Agreement.
(c) The Agency will acquire a fee interest in the Facility and lease the
Facility to the Company pursuant to this Lease Agreement, cause the Project to
be constructed and equipped by the Company and the Equipment to be acquired and
installed in the Project or elsewhere on the Land, all for the purpose of
promoting the industry, health, welfare, convenience and prosperity of the
inhabitants of the State and the County of Monroe and improving their standard
of living.
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(d) Neither the execution and delivery of this Lease Agreement, the
consummation of the transactions contemplated hereby nor the fulfillment of or
compliance with the provisions of this Lease Agreement will conflict with or
result in a breach of any of the terms, conditions or provisions of the Act or
of any corporate restriction or any agreement or instrument to which the Agency
is a party or by which it is bound, or will constitute default under any of the
foregoing, or result in the creation or imposition of any Lien of any nature
upon any of the Property of the Agency under the terms of any such instrument or
agreement.
(e) The Agency has been induced to enter into this Lease Agreement by the
undertaking of the Company to locate and maintain the Facility in the City of
Rochester, Monroe County, New York.
(f) The Agency has determined that the Facility will not have a
"significant effect" on the environment within the meaning of the State
Environmental Quality Review Act and the regulations of the Department of
Environmental Conservation promulgated thereunder.
Section 1.2. Representations and Covenants of the Company.
The Company makes the following representations and covenants as the basis
for the undertakings on its part herein contained:
(a) The Company has power to enter into and to execute and deliver this
Lease Agreement.
(b) Neither the execution and delivery of this Lease Agreement, the
consummation of the transactions contemplated hereby nor the fulfillment of or
compliance with the provisions of this Lease Agreement will conflict with or
result in a breach of any of the terms, conditions or provisions of any
corporate restriction or any agreement or instrument to which the Company is a
party or by which it is bound, or will constitute a default under any of the
foregoing, or result in the creation or imposition of any Lien of any nature
upon any of the Property of the Company under the terms of any such instrument
or agreement.
(c) The providing of the Facility by the Agency and the leasing thereof by
the Agency to the Company will not result in the removal of a plant, facility or
other commercial activity of the Company from one area of the State to another
area of the State nor result in the abandonment of one or more plants or
facilities of the Company located within the State.
(d) The Facility and the operation thereof will conform with all
applicable zoning, planning, building and environmental laws and regulations of
governmental authorities having jurisdiction over the Facility, and the Company
shall defend,
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indemnify and hold the Agency harmless from any liability or expenses resulting
from any failure by the Company to comply with the provisions of this subsection
(d).
(e) The Company has transferred to the Agency insurable title to the fee
and assets contemplated by this Lease Agreement and all documents related
hereto.
(f) There is no litigation pending or, to the knowledge of the Company,
threatened, in any court, either state or federal, to which the Company is a
party, and in which an adverse result would in any way diminish or adversely
impact on the Company's ability to fulfill it obligations under this Lease
Agreement.
(g) The Company represents and covenants (i) the Facility complies and
will comply in all respects with all environmental laws and regulations, (ii)
that no pollutants, contaminants, solid wastes, or toxic or hazardous substances
have been in the past or will be discharged, released, stored, treated,
generated, disposed of, or allowed to escape or exist on the Facility except in
compliance with all applicable environmental laws, (iii) that no asbestos has
been or will be incorporated into or disposed of on the Facility except in
compliance with all applicable environmental laws, (iv) that no underground
storage tanks are or will be located on the Facility, and (v) that no
investigation, order, agreement, notice, demand, or settlement with respect to
any of the above is threatened, anticipated, in existence, or will be in
existence. The Company upon receiving any information or notice contrary to the
representations contained in this Section shall immediately notify the Agency in
writing with full details regarding the same. The Company hereby releases the
Agency from liability with respect to, and agrees to defend, indemnity, and hold
harmless the Agency, its directors, officers, employees, agents,
representatives, successors, and assigns from and against any and all claims,
demands, damages, costs, orders, liabilities, penalties, and expenses (including
reasonable attorneys' fees) related in any way to any violation of the covenants
or failure to be accurate in the making of the representations contained in this
Section. In the event the Agency in its reasonable discretion deems it necessary
to perform due diligence with respect to any of the above, or to have an
environmental audit performed with respect to the Facility, the Company agrees
to pay the expenses of same to the Agency upon demand, and agrees that upon
failure to do so, its obligation for such expenses shall be deemed to be
additional rent.
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ARTICLE II
FACILITY SITE, DEMISING CLAUSES AND RENTAL PROVISIONS
Section 2.1. Agreement to Convey to Agency.
The Company has conveyed, or has caused to be conveyed, or will convey, or
will cause to be conveyed, to the Agency all of the interest in real property,
including any buildings, structures or improvements thereon, described in
Exhibit "A" attached hereto and the equipment and personal property described in
Exhibit "B" attached hereto (the "Equipment" and collectively the "Facility").
The Company agrees that the Agency's interest in such Facility will be
sufficient for the purposes intended by this Lease Agreement and agrees that it
will defend, indemnify and hold the Agency harmless from any expense or
liability arising out of a defect in title or a lien adversely affecting the
Facility and will pay all reasonable expenses incurred by the Agency in
defending any action respecting title to or a lien affecting the Facility.
Provided, however, that the Agency accepts title subject to the encumbrances
referred to in Section 1.2(e).
Section 2.2. Construction and Equipping of the Facility
The Company and the Agency agree and acknowledge that the Company will
lease the Facility from the Agency pursuant to this Lease Agreement. The
Company, as agent for the Agency, will construct and equip the Facility.
Section 2.3. Demise of Facility.
The Agency hereby demises and leases the Facility to the Company and the
Company hereby rents and leases the Facility from the Agency upon the terms and
conditions of this Lease Agreement.
Section 2.4. Remedies to be Pursued Against Contractors and Subcontractors and
their Sureties.
In the event of a default by any contractor or any other person or
subcontractor under any contract made by it in connection with the Facility or
in the event of a breach of warranty or other liability with respect to any
materials, workmanship, or performance guaranty, the Company at its expense,
either separately or in conjunction with others, may pursue any and all remedies
available to it and the Agency, as appropriate, against the contractor,
subcontractor or manufacturer or supplier or other Person so in default and
against such surety for the performance of such contract. The Company, in its
own name or in the name of the Agency, may prosecute or defend any action or
proceeding or take any other action involving any such contractor,
subcontractor, manufacturer, supplier or surety or other person which the
Company deems reasonably necessary, and in such event, the Agency, at the
Company's expense,
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hereby agrees to cooperate fully with the Company and to take all action
necessary to effect the substitution of the Company for the Agency in any such
action or proceeding.
Section 2.5. Duration of Lease Term; Quiet Enjoyment.
(a) The Agency shall deliver to the Company sole and exclusive possession
of the Facility (subject to the provisions of Section 5.3 hereof) and the
leasehold estate created hereby shall be a continuation of the leasehold estate
created by the parties to the Lease Agreement of September 16, 1974 referred to
hereinabove.
(b) The leasehold estate of the Premises as described in Exhibit "A"
created hereby shall terminate at 11:59 P.M. on December 31, 2007, or on such
earlier date as may be permitted by Section 8.1 hereof.
Section 2.6. Rents.
(a) The Company shall pay rent for the Facility as follows: One Dollar
($1.00) annually.
(b) In addition to the payments of rent pursuant to Section 2.6(a)
hereof, throughout the term of this Lease Agreement, the Company shall pay to
the Agency as additional rent, within thirty (30) days of the receipt of demand
therefor, an amount equal to the sum of the expenses of the Agency and the
members thereof incurred (i) for the reason of the Agency's leasing of the
Facility and (ii) in connection with the carrying out of the Agency's duties and
obligations under this Lease Agreement.
(c) The Company agrees to make the above-mentioned payments, without any
further notice, in lawful money of the United States of America as, at the time
of payment, shall be legal tender for the payment of public or private debts. In
the event the Company shall fail to timely make any payment required in this
Section 2.6 the Company shall pay the same together with interest from the date
said payment is due at the rate of six percent (6%) per annum.
Section 2.7. Obligations of Company Hereunder Unconditional.
The obligations of the Company to make the payments required in Section
2.6 hereof and to perform and observe any and all of the other covenants and
agreements on its part contained herein shall be a general obligation of the
Company and shall be absolute and unconditional irrespective of any defense or
any rights of setoff, recoupment or counterclaim it may otherwise have against
the Agency. The Company agrees it will not (i) suspend, discontinue or xxxxx any
payment required by Section 2.6 hereof or (ii) fail to observe any of its other
covenants or agreements in this Lease Agreement or (iii) except as provided in
Section 8.1 hereof, terminate this Lease Agreement for any cause whatsoever
including, without limiting the generality of the
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foregoing, failure to complete the Facility, any defect in the title, design,
operation, merchantability, fitness or condition of the Facility or in the
suitability of the Facility for the Company's purposes and needs, failure of
consideration, destruction of or damage to the Facility, commercial frustration
of purpose, or the taking by Condemnation of title to or the use of all or any
part the Facility, any change in the tax or other laws of the United States of
America or administrative rulings of or administrative actions by the State or
any political subdivision of either, or any failure of the Agency to perform and
observe any agreement, whether expressed or implied, or any duty, liability or
obligation arising out of or in connection with this Lease Agreement, or
otherwise. Subject to the foregoing provisions, nothing contained in this
Section 2.7 shall be construed to release the Agency from the performance of any
of the agreements on its part contained in this Lease Agreement or to affect the
right of the Company to seek reimbursement, and in the event the Agency should
fail to perform any such agreement, the Company may institute such separate
action against the Agency as the Company may deem necessary to compel
performance or recover damages for nonperformance, and the Agency covenants that
it will not, subject to the provisions of Section 5.2, take, suffer or permit
any action which will adversely affect, or create any defect in its title to the
Facility or which will otherwise adversely affect the rights or estates of the
Company hereunder, except upon written consent of the Company. None of the
foregoing shall relieve the Company of its obligations under Section 5.2 hereof.
ARTICLE III
MAINTENANCE, MODIFICATIONS, TAXES AND INSURANCE
Section 3.1. Maintenance and Modifications of Facility By Company.
(a) The Company agrees that during the term of this Lease Agreement it
will (i) keep the Facility in as reasonably safe condition as its operations
shall permit; (ii) make all necessary repairs and replacements to the Facility
(whether ordinary or extraordinary, structural or nonstructural, foreseen or
unforeseen); (iii) operate the Facility in a sound and prudent manner; and (iv)
indemnify and hold the Agency harmless from any liability or expenses from the
failure by the Company to comply with (i), (ii) or (iii) above.
(b) The Company at its own expense, from time to time may make any
structural addition, modifications or improvements to the Facility or any
addition, modifications or improvements to the Facility or any part thereof
which it may deem desirable for its business purposes and uses that do not
adversely affect the structural integrity or impair the operating efficiency of
the Facility or substantially change the nature of the Facility. All such
structural additions, modifications or improvements so made by the Company shall
become a part of the Facility. The Company agrees to deliver to the Agency all
documents which may be necessary or appropriate to convey to the Agency title to
or other satisfactory interest in, such property.
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Section 3.2. Installation of Additional Equipment.
The Company from time to time may install additional machinery, equipment
or other personal property in the Facility (which may be attached or affixed to
the Facility), and such machinery, equipment or other personal property shall
not become, or be deemed to become, a part of the Facility. The Company from
time to time may remove or permit the removal of such machinery, equipment or
other personal property; provided that any such removal of such machinery,
equipment or other personal property shall not adversely affect the structural
integrity of the Facility or impair the overall operating efficiency of the
Facility for the purposes for which it is intended and provided further that if
any damage is occasioned to Facility by such removal, the Company agrees to
promptly repair such damage at its own expense.
Section 3.3. Taxes, Assessments and Utility Charges.
(a) The Company agrees to pay, as the same respectively become due, (i)
all taxes and governmental charges of any kind whatsoever which may at any time
be lawfully assessed or levied against or with respect to the Facility and any
machinery, equipment or other property installed or brought by the Company
therein or thereon, including without limiting the generality of the foregoing
any taxes levied upon or with respect to the income or revenues of the Agency
from the Facility, (ii) all payments under the Payment in Lieu of Tax Agreement,
(iii) all utility and other charges, including "service charges", incurred or
imposed for the operation, maintenance, use, occupancy, upkeep and improvement
of the Facility, and (iv) all assessments and charges of any kind whatsoever
lawfully made by any governmental body for public improvements; provided that,
with respect to special assessments or other governmental charges that may
lawfully be paid in installments over a period of years, the Company shall be
obligated under this Lease Agreement to pay only such installments as are
required to be paid during the term of this Lease Agreement.
(b) The Company, at its own expense and in its own name and on behalf or
in the name and on behalf of the Agency, may in good faith contest any such
taxes, assessments and other charges. In the event of any such contest, the
Company may permit the taxes, assessments or other charges so contested to
remain unpaid during the period of such contest and any appeal therefrom.
Section 3.4. Insurance Required.
At all times throughout the term of this Lease Agreement, including
without limitation during any period of construction of the Facility, the
Company shall maintain insurance against such risks and for such amounts as are
customarily insured against by businesses of like size and type paying, as the
same become due and payable, all premiums in respect thereto, including, but not
necessarily limited to:
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(a) Insurance against loss or damage by fire, lightning and other
casualties, with a uniform standard extended coverage endorsement, such
insurance to be in an amount not less than the replacement cost of the Facility,
exclusive of excavations and foundations, as determined by a recognized
appraiser or insurer selected by the Company. As an alternative to the
requirements in this subsection (a), including the requirement of periodic
appraisal, the Company may insure such property under a blanket insurance policy
or policies covering not only the Facility, but other properties as well.
(b) Workers' compensation insurance, disability benefits insurance, and
each other form of insurance which the Agency or the Company is required by law
to provide, covering loss resulting from injury, sickness, disability or death
of employees of the Company who are located at or assigned to the Facility.
(c) Insurance against loss or losses from liabilities imposed by law or
assumed in any written contract (including the contractual liability assumed by
the Company under Section 5.2 hereof) and arising from personal injury and death
or damage to the property of others caused by any accident or occurrence, with
limits of not less than $1,000,000 per accident or occurrence on account of
personal injury, including death resulting therefrom, and $1,000,000 per
accident or occurrence on account of damage to the Property of others, excluding
liability imposed upon the Company by any applicable workmen's compensation law;
and a blanket excess liability policy in the amount not less than $1,000,000,
protecting the Company against any loss or liability or damage for personal
injury or property damage.
Section 3.5. Additional Provisions Respecting Insurance.
(a) All insurance required by Section 3.4 hereof shall be procured and
maintained in financially sound and generally recognized responsible insurance
companies selected by the Company and authorized to write such insurance in the
State. Such insurance may be written with deductible amounts comparable to those
on similar policies carried by other companies engaged in businesses similar in
size, character and other respects to those in which the Company is engaged. All
policies evidencing such insurance shall provide for (i) payment of the losses
of the Company and the Agency as their respective interest may appear, and (ii)
at least thirty (30) days written notice of the cancellation thereof to the
Company and the Agency.
(b) All such policies of insurance, or a certificate or certificates of
the insurers that such insurance is in force and effect, shall be deposited with
the Agency on or before the Closing Date. The Company shall deliver to the
Agency on or before the first business day of each calendar year thereafter a
certificate dated not earlier than the immediately preceding December 1st
reciting that there is in full force and effect, with a term covering at least
the next succeeding calendar year, insurance in the amounts and of the types
required by Sections 3.4 and 3.5 hereof. Prior to expiration of any such policy,
the
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Company shall furnish the Agency evidence that the policy has been renewed or
replaced or is no longer required by this Lease Agreement.
Section 3.6. Application of Net Proceeds of Insurance.
The net proceeds of the insurance carried pursuant to the provisions of
Section 3.4 hereof shall be applied as follows:
(i) the net proceeds of the insurance required by Section 3.4(a) hereof
shall be applied as provided in Section 4.1 hereof, and
(ii) the net proceeds of the insurance required by Section 3.4(b) and (c)
hereof shall be applied toward extinguishment or satisfaction of the
liability with respect to which such insurance proceeds may be paid.
Section 3.7. Right of Agency to Pay Taxes, Insurance Premiums and Other Charges.
If the Company fails (i) to pay any tax, assessment or other governmental
charge required to be paid by Section 3.3 hereof or (ii) to maintain any
insurance required to be maintained by Section 3.4 hereof, the Agency may pay
such tax, assessment or other governmental charge or the premium for such
insurance. The Company shall reimburse the Agency for any amount so paid
together with interest thereon from the date of payment at six percent (6%) per
annum.
ARTICLE IV
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 4.1. Damage or Destruction.
(a) If the Facility shall be damaged or destroyed (in whole or in part) at
any time during the term of this Lease Agreement:
(i) the Agency shall have no obligation to replace, repair, rebuild or
restore the Facility;
(ii) there shall be no abatement or reduction in the amounts payable by
the Company under this Lease Agreement; and
(iii) except as otherwise provided in subsection (b) of this Section 4.1,
the Company shall promptly replace, repair, rebuild or restore the
Facility to substantially the same condition and value as an
operating entity as existed prior to such damage or destruction,
with such changes, alterations and modifications as may be desired
by the Company.
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All such replacements, repairs, rebuilding or restoration made pursuant to
this Section 4.1, whether or not requiring the expenditure of the Company's own
money, shall automatically become a part of the Facility as if the same were
specifically described herein.
(b) The Company shall not be obligated to replace, repair, rebuild or
restore the Facility, and the net proceeds of the insurance shall not be applied
as provided in subsection (a) of this Section 4.1, if the Company shall exercise
its option to terminate this Agreement pursuant to Section 8.1 hereof.
(c) The Company may adjust all claims under any policies of insurance
required by Section 3.4(a) hereof.
Section 4.2. Condemnation.
(a) If at any time during the term of this Lease Agreement the whole or
any part of title to, or the use of, the Facility shall be taken by
condemnation, the Agency shall have no obligation to restore or replace the
Facility and there shall be no abatement or reduction in the amounts payable by
the Company under this Lease Agreement. The Agency shall not have any interest
whatsoever in any condemnation award, and the Company shall have the exclusive
right to same.
Except as otherwise provided in subsection (b) of this Section 4.2, the
Company shall promptly:
(i) restore the Facility (excluding any land taken by condemnation) to
substantially the same condition and value as an operating entity as
existed prior to such condemnation, or
(ii) acquire, by construction or otherwise, facilities of substantially
the same nature and value as an operating entity as the Facility.
The Facility, as so restored, or the substitute facilities, whether or not
requiring the expenditure of the Company's own moneys, shall automatically
become part of the Facility as if the same were specifically described herein.
(b) The Company shall not be obligated to restore the Facility or acquire
substitute facilities, and the net proceeds of any condemnation award shall not
be applied as provided in Section 4.2(a), if the Company shall exercise its
option to terminate this Lease Agreement pursuant to Section 8.1 hereof.
(c) The Agency shall cooperate fully with the Company in the handling
and conduct of any condemnation proceeding with respect to the Facility. In
no event shall
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the Agency voluntarily settle, or consent to the settlement of, any condemnation
proceeding with respect to the Facility without the written consent of the
Company.
Section 4.3. Condemnation of Company-Owned Property.
The Company shall be entitled to the proceeds of any condemnation award or
portion thereof made for damage to or taking of any property which, at the time
of such damage or taking, is not part of the Facility.
ARTICLE V
SPECIAL COVENANTS
Section 5.1. No Warranty of Condition or Suitability by the Agency.
THE AGENCY MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE
CONDITION, TITLE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS OF THE FACILITY
OR THAT IT IS OR WILL BE SUITABLE FOR THE COMPANY'S PURPOSES OR NEEDS.
Section 5.2. Hold Harmless Provisions.
The Company hereby releases the Agency from, agrees that the Agency shall
not be liable for and agrees to indemnify and hold the Agency harmless from and
against any and all (i) liability for loss or damage to property or injury to or
death of any and all persons that may be occasioned by any cause whatsoever
pertaining to the Facility or arising by reason or of in connection with the
occupation or the use thereof or the presence on, in or about the Facility or
(ii) liability arising from or expense incurred by the Agency's financing,
construction, renovation, equipping, owning and leasing of the Facility,
including without limiting the generality of the foregoing, all causes of action
and reasonable attorneys' fees and any other expenses incurred in defending any
suits or actions which may arise as a result of any of the foregoing. The
foregoing indemnities shall apply notwithstanding the fault or negligence on the
part of the Agency, or any of its respective members, directors, officers,
agents or employees and irrespective of the breach of a statutory obligation or
the application of any rule of comparative or apportioned liability.
Section 5.3. Right to Inspect the Facility.
The Agency and its duly authorized agents shall have the right at all
reasonable times, and upon reasonable notice, to inspect the Facility; any
inspections shall be conducted so as not to interfere with the Company's
business operations.
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Section 5.4. Company to Maintain its Existence; Conditions Under Which
Exceptions Permitted.
The Company agrees that during the term of this Lease Agreement it will
maintain its existence, will not dissolve or otherwise dispose of all or
substantially all of its assets.
Section 5.5. Qualification in the State.
Throughout the term of this Lease Agreement, the Company shall continue to
be duly authorized to do business in the State.
Section 5.6. Agreement to Provide Information.
The Company agrees, whenever requested by the Agency, to provide and
certify or cause to be provided and certified such information concerning the
Company, the Facility and other topics necessary to enable the Agency to make
any report required by law or governmental regulation.
Section 5.7. Books of Record and Account; Financial Statements.
The Company at all times agrees to maintain proper accounts, records and
books in which full and correct entries shall be made, in accordance with
generally accepted accounting principles, of all business and affairs of the
Company.
Section 5.8. Compliance With Orders, Ordinances, Etc.
(a) The Company agrees that it will, throughout the term of this Lease
Agreement, promptly comply with all statutes, codes, laws, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all federal, state, county,
municipal and other governments, departments, commissions, boards, companies or
associations insuring the premises, courts, authorities, officials and officers,
foreseen or unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to the Facility or any part thereof, or to any use,
manner of use or condition of the Facility or any part thereof.
(b) Notwithstanding the provisions of subsection (a) of this Section 5.8,
the Company may in good faith contest the validity of the applicability of any
requirement of the nature referred to in such subsection (a). In such event, the
Company, with the prior written consent of the Agency (which shall not be
unreasonably withheld) may fail to comply with the requirement or requirements
so contested during the period of such contest and any appeal therefrom, unless
the Agency shall notify the Company that it must comply with such requirement or
requirements.
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Section 5.9. Discharge of Liens and Encumbrances.
(a) The Company shall not permit or create or suffer to be permitted or
created any lien, upon the Facility or any part thereof by reason of any labor,
services or materials rendered or supplied or claimed to be rendered or supplied
with respect to the Facility or any part thereof.
(b) Notwithstanding the provisions of subsection (a) of this Section 5.9,
the Company may in good faith contest any such lien. In such event, the Company
may permit the items so contested to remain undischarged and unsatisfied during
the period of such contest and any appeal therefrom.
Section 5.10. Sales Tax.
The Company shall, file an Annual Statement with New York State Department
of Taxation and Finance regarding the value of sales tax exemptions the Company,
its agents, consultants or subcontractors have claimed pursuant to the Agency
conferred upon it in connection with the Facility. The Company acknowledges that
the penalty for failure to file such statement is a default under the terms of
this Lease Agreement.
Section 5.11. Depreciation Deductions and Investment Tax Credit.
The parties agree that the Company shall be entitled to all depreciation
deductions with respect to any depreciable property in the Facility pursuant to
section 167 of the United States Internal Revenue Code (the "Code") and to any
investment credit pursuant to Section 38 of the Code with respect to any portion
of the Facility which constitutes "Section 38 Property".
ARTICLE VI
RELEASE OF CERTAIN LAND; ASSIGNMENTS AND SUBLEASING;
MORTGAGE AND PLEDGE OF INTERESTS
Section 6.1. Restriction on Sale of Facility Release of Certain Land.
Except as otherwise specifically provided in this Article VI, the Agency
shall not sell, convey, transfer, mortgage, encumber or otherwise dispose of the
Facility or any part thereof or any of its rights under this Lease Agreement,
without the prior written consent of the Company.
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Section 6.2. Removal of Equipment.
(a) The Agency shall not be under any obligation to remove, repair or
replace any inadequate, obsolete, worn out, unsuitable, undesirable or
unnecessary item of Equipment. In any instance where the Company determines that
any item of Equipment has become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary, the Company may remove such item of Equipment from
the Facility and may sell, trade-in, exchange or otherwise dispose of the same,
as a whole or in part.
(b) The Agency shall execute and deliver to the Company all instruments
necessary or appropriate to enable the Company to sell or otherwise dispose of
any such item of Equipment. The Company shall pay any costs (including
reasonable counsel fees) incurred in transferring title to and releasing any
item of Equipment removed pursuant to this Section 6.2.
(c) The removal of any item of Equipment pursuant to this Section 6.2
shall not entitle the Company to any abatement or diminution of the rents
payable under Section 2.4 hereof.
Section 6.3. Assignment and Subleasing.
This Amended and Restated Lease Agreement may be assigned in whole or in
part and the Facility may be subleased as a whole or in part by the Lessee,
without the consent of the Agency, provided that:
(a) No assignment or subleasing shall relieve the Lessee from
primary liability for any of its obligations hereunder;
(b) The assignee or sublessee shall assume the obligations of the
Lessee hereunder to the extent of the interest assigned or subleased; and
(c) The Lessee shall, within 10 days after the delivery thereof,
furnish or cause to be furnished to the Agency a true and complete copy of such
each such assignment or sublease, as the case may be, and the instrument of
assumption.
ARTICLE VII
DEFAULT
Section 7.1. Events of Default Defined.
(a) Each of the following shall be an "Event of Default" under this Lease
Agreement:
15
(1) If the Company fails to pay the amounts required to be paid
pursuant to Section 2.6 of this Lease Agreement and such failure shall have
continued for a period of thirty (30) days after the Agency gives written notice
of such failure to the Company.
(2) If there is any failure by the Company to observe or perform any
other covenant, condition or agreement required by this Lease Agreement to be
observed or performed and such failure shall have continued for a period of
thirty (30) days after the Agency gives written notice to the Company,
specifying the failure and stating that it be remedied, or in the case of any
such default which can be cured with due diligence but not within such 30-day
period, the Company's failure to proceed promptly to cure such default and
thereafter prosecute the curing of such default with due diligence.
(3) If any representation or warranty of the Company contained in
this Lease Agreement is incorrect in any material respect.
(4) If there is any default by the Company to observe or perform any
covenant, condition or agreement required by the Lease, or any other Agreement
between the Company and the Agency to be observed or performed by the Company
and such failure shall have continued for a period of thirty (30) days after the
Agency gives written notice to the Company, specifying that failure and stating
that it be remedied, or in the case of any such default which can be cured with
due diligence but not within such 30-day period, the Company's failure to
proceed promptly to cure such default and thereafter prosecute the curing of
such default with due diligence.
(b) Notwithstanding the provisions of 7.1(a), if by reason of force
majeure either party hereto shall be unable in whole or in part to carry out its
obligations under this Lease Agreement and if such party shall give notice and
full particulars of such force majeure in writing to the other party within a
reasonable time after the occurrence of the event or cause relied upon, the
obligations under this Lease Agreement of the party giving such notice, so far
as they are affected by such force majeure shall be suspended during continuance
of the inability, which shall include a reasonable time for the removal of the
effect thereof. The suspension of such obligations for such period pursuant to
this subsection (b) shall not be deemed an Event of Default under this Section
7.1. Notwithstanding anything to the contrary in this subsection (b), an event
of force majeure shall not excuse, delay or in any way diminish the obligations
of the Company to make the payments required by Section 2.6 and Section 3.3
hereof, to obtain and continue in full force and effect the insurance required
by Section 3.4 hereof, and to provide the indemnity required by Section 5.2
hereof and to comply with the terms of Sections 5.2, 5.3, 5.4, 5.6, 5.7, 5.8,
5.9, 5.10 and 7.1(a)(1) hereof. The term "force majeure" as used herein shall
include, without limitation, acts of God, strikes, lockouts or other industrial
disturbances, acts of public enemies, acts, priorities or orders of any kind of
the government of the United States of America or of the State or any of their
departments, agencies, governmental subdivisions, or officials, any civil or
military
16
authority, insurrections, riots, epidemics, landslides, lightning, earthquakes,
fire, hurricanes, storms, floods, washouts, droughts, arrests, restraint of
government and people, civil disturbances, explosions, breakage or accident to
machinery, transmission pipes or canals, shortages of labor or materials or
delays of carriers, partial or entire failure of utilities, shortage of energy
or any other cause or event not reasonably within the control of the party
claiming such inability and not due to its fault. The party claiming such
inability shall remove the cause for the same with all reasonable promptness. It
is agreed that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the party having
difficulty, and the party having difficulty shall not be required to settle any
strike, lockout and other industrial disturbances by acceding to the demands of
the opposing party or parties.
Section 7.2 Remedies on Default.
Whenever any Event of Default shall have occurred and be continuing, the
Agency may take, to the extent permitted by law, any one or more of the
following remedial steps;
(1) Declare, by written notice to the Company, to be immediately due and
payable, whereupon the same shall become immediately due and payable: (i) all
unpaid installments of rent payable pursuant to Section 2.6 (a) hereof and (ii)
all other payments due under this Lease Agreement.
(2) Take any other action as it shall deem necessary to cure any such
Event of Default, provided that the taking of any such action shall not be
deemed to constitute a waiver of such Event of Default.
(3) Take any other action at law or in equity which may appear necessary
or desirable to collect the payments then due or thereafter to become due
hereunder, and to enforce the obligations, agreements or covenants of the
Company under this Lease Agreement.
(4) Terminate this Lease Agreement and convey the Facility to the Company
or its designee.
Section 7.3 Remedies Cumulative.
No remedy herein conferred upon or reserved to the Agency is intended to
be exclusive of any other available remedy, but each and every such remedy shall
be cumulative and in addition to every other remedy given under this Lease
Agreement or now or hereafter existing at law or in equity. No delay or omission
to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient.
17
Section 7.4 Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should default under any of the provisions of
this Lease Agreement and the Agency should employ attorneys or incur other
expenses for the collection of amounts payable hereunder or the enforcement of
performance or observance of any obligations or agreements on the part of the
Company herein contained, the Company shall, on demand therefor, pay to the
Agency, the reasonable fees of such attorneys and such other expenses so
incurred.
Section 7.5 No Additional Waiver Implied by One Waiver.
In the event any agreement contained herein should be breached by any
party and thereafter waived by any other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other
breach hereunder.
ARTICLE VIII
EARLY TERMINATION OF AGREEMENT;
OBLIGATIONS OF COMPANY
Section 8.1. Early Termination of Agreement.
(a) The Company shall have the option at any time to terminate this Lease
Agreement upon filing with the Agency a certificate signed by an authorized
representative of the Company stating the Company's intention to do so pursuant
to this Section 8.1 and upon compliance with the requirements set forth in
Section 8.2 hereof.
(b) The Agency shall have the option at any time to terminate this Lease
Agreement upon any default of the Company under Paragraph 1(a) of the Payment in
Lieu Tax Agreement, after ten (10) days written notice to the Company and
opportunity to cure.
(c) The Agency shall have the option at any time to terminate this Lease
Agreement upon default of the Company in the performance of any other obligation
under this agreement upon thirty (30) days written notice to the Company and
opportunity to cure.
Section 8.2. Obligation to Purchase Facility.
Upon termination of the term of this Lease Agreement in accordance with
Section 2.5 or Section 8.1 hereof, the Company shall purchase the Facility from
the Agency for the purchase price of One ($1.00) Dollar. The Company shall
exercise its obligation to purchase by giving written notice to the Agency.
18
Section 8.3. Conveyance on Purchase.
At the closing of any purchase of the Facility pursuant to Section 8.2
hereof, the Agency shall, upon receipt of the purchase price, deliver to the
Company all necessary documents,
(a) to convey to the Company good and marketable title to the property
being purchased, as such property exists, subject only to the following:
(i) any liens to which title to such property was subject when conveyed
to the Agency,
(ii) any liens created at the request of the Company or to the creation
of which the Company consented or in the creation of which the
Company acquiesced, and
(iii) any liens resulting from the failure of the Company to perform or
observe any of the agreements on its part contained in this Lease
Agreement; and
(b) to release and convey to the Company all of the Agency's rights and
interest in and to any rights of action or any net proceeds of insurance or
condemnation awards with respect to the Facility.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Surrender of Facility.
Except as otherwise expressly provided in this Lease Agreement, at the
termination of this Lease Agreement, the Company shall surrender possession of
the Facility peaceably and promptly to the Agency in as good condition as at the
commencement of the term of this Lease Agreement, loss by fire or other casualty
covered by insurance, condemnation and ordinary wear, tear and obsolescence only
excepted.
Section 9.2. Notices.
All notices, certificates and other communications hereunder shall be in
writing and shall be sufficiently given and shall be deemed given when delivered
and, if delivered by mail, shall be sent by certified mail, postage prepaid,
addressed as follows:
To the Agency: County of Monroe Industrial
Development Agency
Xxx Xxxxx Xxxxxx, Xxxxx 000
00
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Executive Director
To the Company: CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx 0. XxXxxxxxx
Section 9.3. Binding Effect.
This Lease Agreement shall insure to the benefit of and shall be binding
upon the Agency, the Company and their respective successors and assigns.
Section 9.4. Severability.
In the event any provision of this Lease Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 9.5. Amendments, Changes and Modifications.
This Lease Agreement may not be amended, changed, modified, altered or
terminated without the concurring written consent of the parties hereto.
Section 9.6. Execution of Counterparts.
This Lease Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
Section 9.7. Applicable Law.
This Lease Agreement shall be governed exclusively by the applicable laws
of the State.
Section 9.8. Recording and Filing.
This Lease Agreement or a memorandum thereof, shall be recorded or filed,
as the case may be, in the Office of the Clerk of Monroe County, New York, or in
such other office as may at the time be provided by law as the proper place for
the recordation or filing thereof.
Section 9.9. Subordination to Mortgage
20
The Lease Agreement and the Obligation contained in Section 8.2 is subject
and subordinate to a certain Mortgage made by the Company as Borrower to M&T
Real Estate, Inc. in the principal amount of Two Million ($2,000,000.00)
Dollars, and all modifications, extensions or renewals thereof and to all
advances secured thereunder together with interest thereon.
Section 9.10. Survival of Obligations
This Lease Agreement shall survive the performance of the obligations of
the Company to make payments required by Section 2.6 and all indemnities shall
survive any termination or expiration of this Lease Agreement.
Section 9.11. Table of Contents and Section Headings Not Controlling.
The table of contents and the headings of the several sections in this
Lease Agreement have been prepared for convenience of reference only and shall
not control, affect the meaning or be taken as an interpretation of any
provision of this Lease Agreement.
IN WITNESS WHEREOF, the Agency and the Company have caused this Lease
Agreement to be executed in their respective corporate names, all as of the date
first above written.
COUNTY OF MONROE INDUSTRIAL
DEVELOPMENT AGENCY, Sublessor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, Chairman
CVC PRODUCTS, INC.
By: Xxxxxx 0. XxXxxxxxx
--------------------------------------
Xxxxxx 0. XxXxxxxxx, Senior
Vice-President & Chief Financial
Officer
21
STATE OF NEW YORK)
COUNTY OF MONROE ) ss.:
On the 29th day of September, 1997, before me personally came XXXXXX X.
XXXXXX, to me personally known, who being by me duly sworn, did depose and say
that he resides in the Town of Mendon, New York; that he is the Chairman of the
COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY, the public benefit corporation
described in and which executed the foregoing Instrument; and that he signed his
name thereto at the direction of the Board of Directors of such public benefit
corporation.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Notary Public
XXXXXXX X. XXXXXXXX
Notary Public, State of New York
Qualified in Monroe County
Commission Expires May 31, 0000
XXXXX XX XXX XXXX)
XXXXXX XX XXXXXX ) ss.:
On the 29 day of September, 1997, before me personally came XXXXXX 0.
XxXXXXXXX, to me personally known, who being by me duly sworn, did depose and
say that he resides at 00X Xxxx Xx, Xxxxxxxxx, Xxx Xxxx; that he is a Senior
Vice-President and Chief Financial Officer of CVC PRODUCTS, INC., the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto at the direction of the Board of Directors of such
corporation.
/s/ Xxxxx X. Xxxxxxx
-----------------------
Notary Public
XXXXX X. XXXXXXX
[LSE] Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certificate Filed in Monrow County
Commission Expires Nov. 23, 1998
22
Exhibit "B" to Lease and Memorandum of Lease
All equipment, fixtures, machinery, building materials and items of personal
property now or hereafter to be acquired, constructed and installed in or
necessary for the operation of the building constructed or to be constructed on
the real estate located in the City of Rochester, Monroe County, New York,
described in Schedule "A" to this Financing Statement, including all
substitutions and replacements therefore and all accessions and additions hereto
and proceeds thereof and all plans, specifications, drawings, designs,
blueprints, special tools, parts and fittings and manufacturers', vendors',
contractors' and subcontractors' warranties relating thereto.
SCHEDULE "A"
ALL THAT TRACT OR PARCEL OF LAND situate in the city of Rochester, County of
Monroe, State of New York and described as follows:
BEGINNING at an iron pin set at the intersection of the division line between
the property of Xxxxxx X. Xxxxxxxxx (reputed owner) on the north and the
property of the County of Monroe Industrial Development Agency on the south with
the westerly boundary of Xxx Road; thence along said boundary the following two
(2) courses and distances: (1) South 00' 23' 31" east, a distance of 268.32 feet
to a set iron pin and (2) south 00' 00' 30" west, a distance of 428.76 feet to a
set iron pin; thence south 89' 36' 51" west, a distance of 487.59 feet to an
iron pin set on the easterly boundary of the existing Rochester Xxxxx Xxxx-Xxx
Xxxx Xxxxx Xxxxx X-000; thence along said boundary the following two (2) courses
and distances: (1) North 00' 06' 56" west, a distance of 489.31 feet to an
existing monument and (2) north 00' 0l' 31" east, a distance of 207.76 feet to
an existing concrete monument at its intersection with the southerly boundary of
said Rochester Xxxxx Xxxx-Xxx Xxxx Xxxxx Xxxxx X-000; thence north 89' 36' 51"
east along the last mentioned boundary and also along the beforementioned
division line between the property of Xxxxxx X. Xxxxxxxxx (reputed owner) on the
north and the property of the County of Monroe Industrial Development Agency on
the south, a distance of 486.71 feet to the point of beginning, containing 7.807
acres of land.
The above described parcel being more particularly shown on a survey made by
Xxxxxxx-Xxxx, dated August 2, 1988 entitled "Map of a Survey Part of Town Xxx
000, 00,000 Xxxx Xxxxx, Xxxx of Rochester, Monroe County."
