EXHIBIT 1.10
XXXXX XXXXXX CORPORATION,
Landlord,
and
X. X. XXXXXX CENTER, INC.,
Tenant
LEASE
For Demised Premises located at
Xxxxx Xxxxxx Distribution Facility Plant 6
000 Xxxxx 00 Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxx
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions........................................................ 1
ARTICLE 2
Demise, Term and Rent.............................................. 3
ARTICLE 3
Use .......................................................... 5
ARTICLE 4
Subordination...................................................... 5
ARTICLE 5
Assignment and Subletting.......................................... 5
ARTICLE 6
Estoppel Certificate............................................... 6
ARTICLE 7
Requirements of Law................................................ 6
ARTICLE 8
Property Loss and Indemnification.................................. 9
ARTICLE 9
Destruction - Fire and Other Casualty............................. 10
ARTICLE 10
Insurance......................................................... 11
ARTICLE 11
Condemnation...................................................... 13
ARTICLE 12
Repairs ......................................................... 14
ARTICLE 13
Alterations....................................................... 15
ARTICLE 14
Taxes ......................................................... 15
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ARTICLE 15
Operating Expense; Net Lease Utilities............................ 15
ARTICLE 16
Signs ......................................................... 17
ARTICLE 17
Limitation of Landlord's Liability................................ 17
ARTICLE 18
Broker ......................................................... 17
ARTICLE 19
Default - Conditions of Limitation............................... 17
ARTICLE 20
Re-Entry by Landlord.............................................. 19
ARTICLE 21
Damages ......................................................... 20
ARTICLE 22
Surrender......................................................... 22
ARTICLE 23
Access to Demised Premises........................................ 23
ARTICLE 24
Waivers ......................................................... 23
ARTICLE 25
Miscellaneous..................................................... 24
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LEASE dated as of the ____ day of February, 1995 between XXXXX
CORONA CORPORATION, having its address at 000 XXX 00, X.X. Xxx 0000, Xxxxxxxx,
Xxx Xxxx 00000 (herein called "Landlord"), and X.X. XXXXXX CENTER, INC., a
corporation having an address c/o Riehlman, Xxxxxx & Xxxxxx, 0 Xxxxxxx Xxxxxx,
Xxxxx, Xxx Xxxx 00000-0000 (herein called "Tenant").
W I T N E S S E T H :
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
Definitions
1.1 As used in this Lease, the following terms have the
meanings set forth below:
Additional Rent: All sums of money other than Fixed Rent as
shall become due and payable by Tenant in connection with this Lease, including
but not limited to the amounts set forth in Article 15. Landlord shall have the
same remedies for a default in the payment of Additional Rent as for a default
in the payment of Fixed Rent.
Applicable Law: All laws, statutes and ordinances (including
building codes and zoning ordinances) and the orders, rules, regulations,
directives and requirements of all federal, state, county, and city departments,
bureaus, boards, agencies, offices, commissions and other subdivisions thereof,
or of any official thereof, or of any other governmental, public or quasi-public
authority, whether now or hereafter in force, which are or become, or purport to
be, applicable to the Demised Premises or any part thereof or the sidewalks,
curbs or areas adjacent thereto, including without limitation the Americans With
Disabilities Act, and all requirements, obligations and conditions of all
instruments of record affecting the Demised Premises or any part thereof on the
date of this Lease or to which this Lease is or becomes subordinate.
Building: The building premises known as and by street address
Plant 6, 000 Xxxxx 00 Xxxxx, Xxxxxxxx, Xxx Xxxx excluding the structure commonly
referred to as the "FCC Building".
Commencement Date: As defined in Section 2.2.
Demised Premises: Together, the Building and the
Property.
Enviromental Indemnification Agreement: Shall mean that
certain Enviromental Indemnification Agreement dated as of February 28, 1995 by
and among Landlord and Tenant, a copy of which is annexed hereto as Exhibit 7.2.
Expiration Date: As defined in Section 2.2.
Fixed Rent: As defined in Section 2.3.
Force Majeure: Shall mean any and all causes beyond the
reasonable control of Landlord or Tenant, as the case may be, including delays
caused by the other party hereto, governmental restrictions, regulations or
controls (including energy and water conservation measures), labor disputes,
accidents, mechanical breakdown, shortages or inability to obtain labor, fuel,
steam, water, electricity or materials, acts of God, enemy action, civil
commotion, fire or other casualty or the process of settling insurance claims,
but shall not include lack of funds or financial inability to perform.
Insurance Requirements: All present and future requirements of
any insurance policy covering or applicable to all or any part of the Demised
Premises or the use thereof, all requirements of any administrative body
governing the underwriting standards of insurance companies issuing policies
within the State of Connecticut and having jurisdiction over all or any portion
of the Demised Premises.
Landlord: Only the owner at the time in question of the
Building or of a lease of the Building, so that in the event of any transfer of
title to the Building or of Landlord's interest in a lease of the Building, the
transferor shall be and hereby is relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, and it shall be deemed
without further agreement that such transferee has assumed and agreed to perform
and observe all obligations of Landlord herein during the period it is the
holder of Landlord's interest under this Lease.
Landlord's Agents: The agents, contractors and employees of
Landlord.
Person: The term "person" shall mean any natural person or
persons, a partnership, a corporation, and any other form of business or legal
association or entity.
Property: All of the underlying land owned by Landlord as more
particularly described on Exhibit A attached hereto and made a part hereof. The
foregoing shall include, in addition, any other parcels of land or improvements
or any facility serving the project and made available by easement, agreement or
otherwise.
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Purchase and Sale Agreement: Shall mean that certain purchase
and sale agreement dated February 28, 1995 by and between Landlord and Tenant,
which provides for purchase and sale of the Demised Premises.
Real Estate Taxes: As defined in Section 15.2.
Rent: As defined in Section 2.3.
Repair: The term "repair" shall be deemed to include
restoration and replacement as may be necessary to achieve and maintain good
working order and condition.
Tenant: The Tenant herein named or any assignee or successor
in interest (immediate or remote of the Tenant herein named, which at the time
in question is the owner of the Tenant's estate and interest granted by this
Lease; but the foregoing shall not be construed to permit any assignment of this
Lease or to relieve the Tenant herein named or any assignee or other successor
in interest (whether immediate or remote) of the Tenant herein named from the
full and prompt payment, performance, and observance of the covenants,
obligations and conditions to be paid, performed and observed by Tenant under
this Lease.
Tenant's Agents: The officers, employees, servants,
contractors, licensees, concessionaires, invitees and agents of Tenant.
Tenant's Property: The furniture and furnishings of Tenant and
the following which are furnished and installed by or for Tenant without expense
to Landlord and without any allowance or credit to Tenant: movable partitions,
chandeliers and other hanging, standing or projecting special lighting fixtures,
special cabinet work, other business and trade fixtures, business machines,
business equipment and communications equipment, whether or not attached to or
built into the Demised Premises and which can be removed without permanent
structural damage to, or permanent defacement of, the Building.
Term: As defined in Section 2.2.
ARTICLE 2
Demise, Term and Rent
2.1 Demise. Landlord hereby leases to Tenant, and Tenant
hereby hires from Landlord, upon and subject to the terms, covenants, provisions
and conditions of this Lease, the Demised Premises.
2.2 Term. The term of this Lease (the "Term") (a) shall
commence on February ___, 1995 (the "Commencement Date") and (b) shall terminate
(the "Expiration Date") on the date which
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is the earlier of (i) the "Closing Date" pursuant to the Purchase and Sale
Agreement, or (ii) the date that Landlord shall terminate the Purchase and Sale
Agreement by reason of a default by Tenant, as Purchaser thereunder, or (iii)
six (6) months following the date upon which the Purchase and Sale Agreement is
terminated for a reason other than that set forth in clause (b)(ii) of this
Section 2.2. Notwithstanding clause (b)(i), (b)(ii) or (b)(iii) of this Section
2.2, in no event shall the Expiration Date be later than June 30, 1996, except
as provided for in Article 25 of the Purchase and Sale Agreement, whereby the
Lease Term may be extended by Landlord to up to two (2) additional one (1) year
terms in order to secure a Release of the Consent Order (as defined therein), in
which case the Expiration Date may be extended through June 30, 1998.
2.3 Rent. The rents reserved under this Lease, shall be
payable throughout the Term commencing on the Commencement Date. Rent (as
defined below) shall be and consist of (a) fixed rent (herein called "Fixed
Rent"), as follows:
================================================================================
Annual Rent Monthly Rent
--------------------------------------------------------------------------------
2/__/95 - 12/31/95 $164,000.00 $13,666.67
--------------------------------------------------------------------------------
1/1/96 - the Expiration $164,000.00 $13,666.67
Date, which may include
extension of up to two
(2) additional one (1)
year terms pursuant to
Article 25 of the
Purchase and Sale
Agreement through
June 30, 1998
================================================================================
Fixed Rent shall be payable in equal monthly installments in the amount set
forth above, in advance on the first day of each and every calendar month during
the Term, and (b) Additional Rent. Fixed Rent and Additional Rent shall be paid
in lawful money of the United States to Landlord at the address first set forth
above, or to such other person and/or at such other place as Landlord may
designate by notice to Tenant (Fixed Rent and Additional Rent are herein
sometimes collectively called "Rent").
2.4 No Setoff. Tenant shall pay Fixed Rent and Additional Rent
promptly when due without notice or demand therefor and without any abatement,
deduction or setoff for any
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reason whatsoever, except as may be expressly provided in this Lease.
ARTICLE 3
Use
3.1 Tenant's Business. Tenant shall use and occupy the Demised
Premises for manufacturing and related purposes only and for no other purpose.
3.2 Permits. If any governmental license or permit, other than
a Certificate of Occupancy, shall be required for the proper and lawful conduct
of Tenant's business in the Demised Premises, or any part thereof, Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same to inspection of Landlord. Tenant shall at all times comply
with the terms and conditions of each such license or permit.
3.3 Restrictions. Tenant shall not at any time use or occupy,
or suffer or permit anyone to use or occupy, the Demised Premises, or do
anything to be done in the Demised Premises, in any manner (a) which violates
the Certificate of Occupancy for the Building; or (b) which constitutes a
violation of Applicable Law or the Insurance Requirements.
ARTICLE 4
Subordination
4.1 Superior Mortgages. Tenant agrees that this Lease is
subordinate to any bona fide first mortgage now or in the future placed on the
Demised Premises and any renewals or extensions thereof and upon request of
Landlord Tenant agrees to execute any instrument which may be required by said
mortgagee to effectuate this subordination. As a condition of any such
subordination, Landlord agrees to obtain from any mortgagee to whose mortgage
this Lease is to be subordinated an agreement that so long as Tenant, its
successors or assigns, is in possession of the Demised Premises and not in
default in Tenant's compliance with the provisions of this Lease, the Tenant
will not be disturbed in its possession by such mortgagee. "Mortgagee" as used
herein shall include successors and assigns.
ARTICLE 5
Assignment and Subletting
5.1 Consent Required. Tenant covenants and agrees
that neither this Lease, nor the estate hereby granted, shall be
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assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant, the
Tenant's legal representatives, or successors in interest by operation of law or
otherwise, and that neither the Demised Premises nor any part thereof shall be
sublet, or offered or advertised for subletting, without the prior written
consent of Landlord, which consent to an assignment may be withheld by Landlord
in it sole and absolute discretion; however, Landlord shall not unreasonably
withhold its consent to a sublease which is expressly subordinate to Landlord's
interest, and which is otherwise reasonably acceptable to Landlord.
ARTICLE 6
Estoppel Certificate
6.1 Delivery of Certificate. Tenant shall, without charge at
any time and from time to time, within ten (10) days after request by Landlord,
certify by written instrument duly acknowledged and delivered to any proposed or
actual mortgagee, assignee of any mortgage or purchaser, or any other person,
firm or corporation specified by Landlord:
(a) That this Lease is unmodified and in full force and effect
(or, if there has been any modification, that the same is in full force
and effect as modified and stating the modification);
(b) Whether or not there are then existing any set-offs, or
defenses against the enforcement of any of the agreements, terms,
covenants or conditions hereof upon the part of Tenant to be performed
or complied with (and, if so specifying the same); and
(c) The dates, if any, to which the Rent has been paid
in advance.
6.2 Notice of Lease. The parties hereto agree to execute,
acknowledge, and deliver a statutory form notice of lease with respect to this
Lease, or any amendment of or other agreement supplementary to this Lease,
sufficient for recording. Such notice shall not in any circumstance be deemed to
change or otherwise affect any of the terms, covenants, and conditions of this
Lease.
ARTICLE 7
Requirements of Law
7.1 Compliance. Tenant, at Tenant's sole cost and expense,
shall at all times promptly comply with all Applicable Laws and Insurance
Requirements (collectively, "Regulations")
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with respect to Tenant's use or occupancy of the Demised Premises.
7.2 Environmental Provisions. During the Term of this Lease,
Landlord and Tenant shall comply with all terms and conditions of the
Enviromental Indemnification Agreement
ARTICLE 8
Property Loss and Indemnification
8.1 Limitation of Liability. Landlord or Landlord's Agents
shall not be liable for any damage to property of Tenant, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for injury or damage
to persons or property resulting from any cause of whatsoever nature, unless
caused by Landlord or Landlord's Agents, nor shall Landlord or Landlord's Agents
be liable for any such damage caused by other tenants or persons in, upon or
about the Building or caused by operations in construction of any private,
public or quasi-public work.
8.2 Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord and Landlord's Agents from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in or about the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant, Tenant's Agents or any subtenants or
licensees or their partners, officers, agents, employees or contractors; and (c)
any breach or default by Tenant in the full and prompt payment and performance
of Tenant's obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses. In case any action or proceeding be brought against Landlord or
Landlord's Agents by reason of any such claim, Tenant, upon notice from
Landlord, shall resist and defend such action or proceeding (by counsel
reasonably satisfactory to Landlord).
ARTICLE 9
Destruction - Fire and Other Casualty
9.1 Repairs. (a) If the Demised Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give immediate notice
thereof to Landlord and this Lease shall continue in full force and effect it is
understood and agreed that the Tenant, and Purchaser pursuant to the Purchase
and Sale
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Agreement, has agreed to accept the Demised Premises in it condition as of the
Lease Commencement Date, and therefore any damage, deterioration or destruction
occurring on or after the Lease Commencement Date is solely the responsibility
of Tenant. Tenant hereby agrees to accept all risk of loss of all or one part of
the Demised Premises. This provision is intended to supersede the provisions of
the so-called Uniform Vendors and Purchasers Risk Act, New York General
Obligations Law Section 5- 1311.
(b) All insurance proceeds received or receivable
by Tenant for any casualty shall be paid over to Landlord and advanced to Tenant
as provided for in Section 9.3 below.
9.2 Tenant's Property. Tenant acknowledges that Landlord will
not carry insurance on Tenant's Property or on Tenant's business records or
other property of Tenant or Tenant's Agents, and Tenant agrees that Landlord
will not be obligated to repair any damage thereto or to replace the same.
9.3 Restoration. If the Demised Premises shall be damaged or
destroyed, Tenant shall with reasonable diligence cause the Demised Premises to
be repaired, restored and rebuilt to its former condition provided that, after
deduction from such insurance proceeds of the reasonable costs and expenses, if
any, incurred by Landlord in the collection of such proceeds, including without
limitation the reasonable fees and disbursements of counsel to Landlord, all net
proceeds of insurance received by Landlord with respect to the damage or
destruction shall be made available to Tenant to be used toward the payment of
repairing, rebuilding and restoring the Property so damaged or destroyed,
provided that (i) in the event such net proceeds are not adequate to cover the
cost of repair, restoration or rebuilding as determined by Landlord, Tenant
shall deposit with Landlord the amount of the difference between the net
proceeds and the estimated cost of such repair, restoration or replacement, (ii)
all liens, inchoate or perfected, which may arise for or from or result by
reason of work, materials or equipment for or in connection with such repairs,
rebuilding or restorations shall be removed by bonding, deposit or otherwise
within thirty (30) days after notice to Tenant, (iii) such net proceeds shall be
made available in each case only after the plans and specifications have been
submitted to Landlord and approved by Landlord, (iv) payments shall be made from
said insurance funds to Tenant on the terms and conditions as may be reasonably
set forth by Landlord, (v) the repairs and restorations must be completed free
of all liens for work, labor or materials, and all such work must conform to all
applicable laws, regulations, ordinances, rules, orders and requirements of the
federal, state and municipal authorities and departments having jurisdiction,
and (vi) Tenant covenants that it will receive such balance of insurance
proceeds and all advances made out of such insurance proceeds as hereinabove
mentioned and will have the right to receive the same as a trust fund to be
applied
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first for the purpose of paying the cost of such repair and restoration before
using any part of the same for any other purpose.
ARTICLE 10
Insurance
10.1 Casualty Insurance/"All-Risk" Coverage. (a) Tenant will,
at its sole expense, obtain and keep in force during the Term of this lease,
"all-risk" coverage insurance (including all casualties) naming Landlord and
Tenant as insured, as their interests may appear and such other parties as
Landlord or Tenant may designate as additional insureds, in the customary form
in the Town of Cortlandville for buildings and improvements of similar
character, on all buildings and improvements now or after this date located on
the Demised Premises. The amount of insurance will be designated by Landlord no
more frequently than once every twelve (12) months; will be set forth on an
"agreed amount endorsement" to the policy of insurance; will not be less than
Two Million and 00/100 ($2,000,000.00) Dollars. All policies shall provide, and
Tenant hereby agrees, that all proceeds of all insurance shall be paid over to
Landlord. Any such proceeds which are received by Tenant shall be held "in
trust" by Tenant to be immediately paid over to Landlord. Tenant shall not
compromise or settle any insurance claim without Landlord's prior written
approval.
(b) Commercial General Liability. Tenant will,
at its sole expense, obtain and keep in force during the term of this lease
commercial general liability insurance with a combined single limit of not less
than two million and 00/100 ($2,000,000.00) Dollars for injury to or death of
any one person, for injury to or death of any number of persons in one
occurrence, and for damage to property, insuring against any and all liability
of Landlord and Tenant, including without limitation coverage for contractual
liability, broad form property damage, host liquor liability, and non-owned
automobile liability, with respect to the premises or arising out of the
maintenance, use, or occupancy of the Demised Premises. Such insurance will
insure the performance by Tenant of the indemnity agreement as to liability for
injury to or death of persons and damage to property set forth in Section 8.2.
Such insurance will be noncontributing with any insurance that may be carried by
Landlord and will contain a provision that Landlord, although named as an
insured, will nevertheless be entitled to recover under the policy for any loss,
injury, or damage to Landlord, its agents, and employees, or the property of
such persons.
(c) Other Matters. All insurance required in this paragraph
and all renewals of it will be issued by companies authorized to transact
business in the State of New York reasonably acceptable to Landlord. The
"all-risk" coverage
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insurance and the general liability insurance will be carried in the joint names
of Tenant and Landlord as insureds, and such other parties having an interest in
the Demised Premises as Landlord and Tenant may designate. All insurance
policies will be subject to approval by Landlord and any lender as to form and
substance; will expressly provide that such policies will not be canceled or
altered without thirty (30) days' prior written notice to Landlord and any
lender, in the case of "all-risk" coverage insurance, and to Landlord, in the
case of general liability insurance; will, to the extent obtainable, provide
that no act or omission of Tenant that would otherwise result in forfeiture or
reduction of the insurance will affect or limit the obligation of the insurance
company to pay the amount of any loss sustained; and will, to the extent
obtainable, contain a waiver by the insurer of its rights of subrogation against
Landlord. Upon issuance, each insurance policy or a duplicate or certificate of
such policy will be delivered to Landlord and any lender whom Landlord
designates. Tenant may satisfy its obligation under this paragraph by
appropriate endorsements of its blanket insurance policies. If the Xxxx Lease
shall be in place, pursuant to said lease, Xxxx Properties, Inc., the landlord
thereunder, shall be named as an additional insured on all insurance policies.
10.2 Tenant's Property. Tenant agrees throughout the Term, to
maintain insurance against loss or damage by fire and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies on Tenant's Property.
ARTICLE 11
Condemnation
11.1 Total Taking. If all or substantially all of the Building
or the Property shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this Lease shall cease and terminate as of the date
of the vesting of title in the condemnor.
11.2 Partial Taking. If less than all of the Building or the
Property shall be so condemned or taken, but if such taking shall substantially
affect the Demised Premises or the means of access thereto, or if such
condemnation or taking shall be of a substantial part of the Demised Premises,
then Landlord or Tenant shall have the right to terminate this Lease and the
term and estate hereby granted by the delivery of written notice to the other
party within thirty (30) days following the date of actual vesting of title in
the condemnor. Such termination shall take effect as of the date of actual
vesting of title in the condemnor or thirty (30) days after the giving of such
notice of termination, whichever is later. If Landlord or Tenant shall not so
elect to terminate, this Lease shall be and remain unaffected
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by such condemnation or taking, except that, effective as of the date of the
vesting of title in the condemnor, Fixed Rent shall be reduced in the proportion
which the area of the part of the Demised Premises so condemned or taken bears
to the total area of the Demised Premises prior to such condemnation or taking.
11.3 Award. In the event of the termination of this Lease in
accordance with this Article, Rent shall be prorated and paid to the effective
date of the termination. Tenant, whether this Lease be canceled pursuant to this
Article, shall not be entitled to claim or receive any part of any award or
compensation which may be issued or rendered in any such condemnation proceeding
or as a result of such condemnation or taking, and shall not be entitled to
claim or receive any damages against Landlord, whether the same be for the value
of the unexpired term of this Lease or otherwise.
11.4 Purchase and Sale Agreement. Nothing in this Article 11
is intended to limit, amend or modify the terms and conditions of the Purchase
and Sale Agreement, which shall require Tenant, as Purchaser pursuant to the
Purchase and Sale Agreement, to close title to the Demised Premises
notwithstanding such condemnation, and otherwise provides for the allocation of
any award.
ARTICLE 12
Repairs
12.1 Repairs. Tenant at its sole cost and expense shall be
solely responsible for all repairs or replacement to the Demised Premises,
whether structural or nonstructural, and the fixtures and appurtenances therein
including without limitation landscaping, HVAC, roof and structural repairs
and/or replacements as needed to preserve the Demised Premises and the fixtures
and appointments therein in good working order and condition.
It is understood and agreed that this Lease has been executed
in connection with the Purchase and Sale Agreement and that pursuant to said
Purchase and Sale Agreement, the Tenant as purchaser hereunder has agreed to
accept the Demised Premises in its "as-is" condition as of the Lease
Commencement Date, and therefore as provided for above, all repair and
replacements in any connection to the Demised Premises during the term of this
Lease are the sole responsibility of Tenant.
12.2 Abatement. Neither (i) the making by Landlord, Tenant or
others of any decorations, repairs, alterations, additions or improvements in or
to the Demised Premises, nor (ii) the failure of Landlord or others to make any
such decorations, repairs, alterations, additions or improvements, nor (iii) any
damage to the Demised Premises or to the property of Tenant, nor
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any injury to any persons, caused by other tenants or persons in the Building,
or by operations in the construction of any private, public or quasi-public
work, or by any other cause, nor (iv) any latent defect in the Building or in
the Demised Premises, nor (v) any inconvenience or annoyance to Tenant or injury
to or interruption of Tenant's business by reason of any of the events or
occurrences referred to in the foregoing subdivisions (i) through (iv), shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord, or
Landlord's Agents or any superior lessor or superior mortgagee other than such
liability as may be imposed upon Landlord by law for Landlord's negligence or
the negligence of Landlord's Agents in the operation or maintenance of the
Building or for the breach by Landlord of any express covenant of this Lease on
Landlord's part to be performed.
The provisions of this Article with respect to the making of
repairs shall not apply in the case of fire or other casualty which are dealt
with in Article 9.
ARTICLE 13
Alterations
13.1 Requirements. All improvements installed by Tenant which
are affixed to the Building, including, without limitation, partitions, tile
floors, hung ceilings, power lines, heating and air-conditioning ducts, plumbing
fixtures, water pipes and gas lines shall become upon their installation the
property of Landlord and shall not be removed at the end of the Term by Tenant.
Landlord shall have no obligation whatsoever to reimburse the cost thereof to
Tenant or otherwise. The location of any such improvement shall be approved by
Landlord, which approval shall not be unreasonably withheld or delayed. Further,
Tenant shall not make any improvements to the Property without Landlord's prior
written consent, which consent shall not be unreasonably withheld if Tenant
demonstrates to Landlord's reasonable satisfaction that all such improvements
shall (i) be completed in compliance with all applicable laws, rules and
regulations, and (ii) in a lien free, good and workmanlike manner.
Tenant may install such other machinery, equipment and other
property as it may need to carry out its operation in the Demised Premises and,
except as above provided, shall remove the same upon the termination of this
Lease. All such machinery equipment and other property, except as herein
otherwise specifically provided, shall be and remain the sole property of
Tenant, whether or not the same is attached to or appurtenant to the Demised
Premises. In the event that the installation or removal of any such machinery or
equipment damages the Demised
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Premises, Tenant shall, at its sole cost and expense, immediately repair the
same.
ARTICLE 14
Real Estate Taxes
Landlord shall pay all real estate taxes for the Demised
Premises, during the Term of this Lease.
ARTICLE 15
Operating Expense; Net Lease Utilities
15.1 Utilities. (a) Tenant shall pay the appropriate suppliers
for all water, gas, electricity, light, heat, telephone, power, and other
utilities and communications services used by Tenant on the Demised Premises
during the Term, whether or not the services are billed directly to Tenant.
Tenant shall also procure, or cause to be procured, without cost to Landlord,
any and all necessary permits, licenses, or other authorizations required for
the lawful and proper installation and maintenance upon the Demised Premises of
wires, pipes, conduits, tubes, and other equipment and appliances for use in
supplying any of the services to and upon the Demised Premises which are
installed by Tenant. Landlord, upon request of Tenant, and at the sole expense
and liability of Tenant, will join with Tenant in any application required for
obtaining or continuing any of the services.
(b) Landlord reserves the right to submeter or
otherwise estimate Tenant's usage of utilities and to xxxx the Tenant for
Tenant's usage in accordance with the applicable submeter readings. If Landlord
shall elect to submeter any utility, Landlord shall monthly deliver to Tenant a
xxxx, which xxxx Tenant shall pay to Landlord as Additional Rent within five (5)
calendar days of receipt thereof by Tenant. Until the sewer lines are separated,
Tenant's usage shall be based upon an estimated amount based upon 200% of
Tenant's usage of potable water.
(c) Separate Utilities. As provided for in
Article 23 of the Purchase and Sale Agreement, the Tenant shall separate (and
pay the cost thereof) all of the utilities for the Demised Premises so that
submetering shall no longer be required.
(d) Net Lease. Except for Real Estate Taxes to
be paid for by Landlord pursuant to Article 14, the Fixed Rent shall be a net
rental payment. All costs of maintenance, repairs (whether or not structural or
capital in nature), utilities, insurance and all other expenses of whatsoever
nature in connection with the operation, occupancy or maintenance of the Demised
Premises shall be paid solely by the Tenant during the Term of this Lease, all
such amounts to be regarded as Additional Rent.
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15.2 Tenant's use of electrical energy shall never exceed the
Building's capacity. Without the prior consent of Landlord, Tenant shall not
perform or permit any alteration to the wiring installations or other electrical
facilities in or serving the Demised Premises or any additions to the electrical
fixtures in the Demised Premises.
15.3 Landlord shall have no liability to Tenant for any loss,
damage or expense which Tenant may sustain or incur by reason of any change,
failure, inadequacy or defect in the supply or character of the utility
furnished to the Demised Premises or if the quantity or character of the utility
is no longer available or suitable for Tenant's requirements, except for any
actual damage (as opposed to consequential or punitive) suffered by Tenant by
reason of any such failure, inadequacy or defect cause by the negligence or
Landlord or Landlord's Agents, and then only after actual notice to Landlord by
Tenant pursuant to Section 25.3 of this Lease and, in such event, Tenant, and
those claiming by or through Tenant, waive, to the fullest extent permitted by
Applicable Law any consequential damages resulting therefrom.
ARTICLE 16
Signs
Tenant shall have the right to install signs on the Demised
Premises or on the building identifying Tenant's business which signs shall be
maintained by Tenant at all times in accordance with all Applicable Laws.
ARTICLE 17
Limitation of Landlord's Liability
Tenant shall look solely to the estate and interest of
Landlord in the Building for the satisfaction of Tenant's remedies for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants and conditions of this Lease to be observed or
performed by Landlord, and no other property or assets of Landlord shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to either this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use and occupancy of
the Demised Premises.
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ARTICLE 18
Broker
Tenant covenants, warrants and represents that no broker
negotiated or brought about the consummation of this Lease, and that no
discussions or negotiations were had with any other broker concerning the
leasing of space in the Building. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against any claim for a brokerage commission or other
compensation arising out of any discussions or negotiations had by Tenant with
any broker.
ARTICLE 19
Default -- Conditions of Limitation
19.1 If at any time during the Term of this Lease there is
filed against Tenant in any court pursuant to any statute, either of the United
States of America or any state, a petition in bankruptcy or insolvency, or for
reorganization, or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or for other relief of debtors, and, within ninety
(90) days after such filing, Tenant fails to secure a dismissal thereof; or if
Tenant shall make a voluntary application for any of the foregoing relief, or an
assignment for the benefit of creditors or petition for or enter into an
arrangement for the benefit of creditors, or admit in writing the inability to
pay its debts; then, in any such event, this Lease, at the option of Landlord,
may be terminated by written notice to Tenant (but if any of such events occurs
prior to the Commencement Date, this Lease shall, without any obligation on the
part of the Landlord to give such notice, thereupon be terminated), and, whether
such termination occurs prior to or during the Term hereof, neither Tenant nor
any person claiming through or under Tenant by virtue of any statute or any
order of any court shall be entitled to possession or to remain in possession of
the Demised Premises, but shall forthwith quit and surrender the same. Landlord,
in addition to the other rights and remedies it may have by virtue of any other
provision herein contained (including, without limitation, Article 23 hereof) or
by virtue of any statute, judicial decision or other rule of law, may retain, to
be credited against the damages described in Article 23 below, any rent,
security deposit or monies received by it from Tenant or others on behalf of
Tenant.
19.2 Events of Default. This Lease and the Term and estate
hereby granted are subject to the further limitations that (the following events
to be sometimes referred to as "Event(s) of Default"):
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(a) if Tenant shall default in the payment of any
Fixed Rent or Additional Rent, and such default shall continue
for five (5) days, or
(b) if Tenant shall, whether by action or inaction,
be in default of any of its obligations under this Lease (other than a default
in the payment of Fixed Rent or Additional Rent) and such default shall continue
and not be remedied within thirty (30) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which cannot
with due diligence be cured within a period of thirty (30) days and the
continuance of which for the period required for cure will not subject Landlord
to criminal penalty or to prosecution for a crime or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant's intention to take all steps necessary to remedy such
default, (ii) duly commence within said thirty (30) day period, and thereafter
diligently prosecute to completion, all steps necessary to remedy the default
and (iii) complete such remedy within a reasonable time after the date of said
notice of Landlord (not to exceed sixty (60) days in the aggregate), or
(c) if Tenant shall be in default pursuant to any of
the terms and conditions of the Purchase and Sale Agreement, or if the Purchase
and Sale Agreement shall terminate for any reason whatsoever,
(d) if an event of default occurs under the Xxxx
Lease due to the action or inaction of Tenant,
then this Lease and the Term hereof shall, at Landlord's option and without
further notice to Tenant, terminate and expire, and Tenant shall then quit and
surrender the Demised Premises to Landlord.
ARTICLE 20
Re-Entry by Landlord
20.1 Summary Dispossess. If (i) Tenant shall not pay Rent when
same is due and payable, or (ii) an Event of Default shall have occurred, or
(iii) if this Lease shall terminate as provided in Article 19, Landlord or
Landlord's Agents and employees may immediately or at any time thereafter
re-enter the Demised Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or otherwise,
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises. The word "re-enter", as
used herein, is not restricted to its technical meaning. If this Lease is
terminated under the provisions of Article 19, or
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if Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder of the part of Tenant, Tenant shall thereupon
pay to Landlord the Fixed Rent and Additional Rent payable up to the time of
such termination of this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 21.
20.2 Injunctive Relief. In the event of a breach or threatened
breach by Tenant of any of its obligations under this Lease, Landlord shall also
have the right of injunction. The special remedies to which Landlord may resort
hereunder are cumulative and are not intended to be exclusive of any other
remedies to which Landlord may lawfully be entitled at any time and Landlord may
invoke any remedy allowed at law or in equity as if specific remedies were not
provided for herein.
20.3 Retention of Monies. If this Lease shall terminate under
the provisions of Article 19, or if Landlord shall re-enter the Demised Premises
under the provisions of this Article, or in the event of the termination of this
Lease, or of re-entry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Landlord shall be entitled to retain all monies, if any, paid by Tenant
to Landlord, whether as advance rent, security or otherwise, but such monies
shall be credited by Landlord against any Fixed Rent or Additional Rent due from
Tenant at the time of such termination or re-entry or, at Landlord's option,
against any damages payable by Tenant under Article 21 or pursuant to law.
ARTICLE 21
Damages
21.1 Acceleration, Reletting. If this Lease is terminated
under the provisions of Article 19, or if Landlord shall re-enter the Demised
Premises under the provisions of Article 20, or in the event of the termination
of this Lease, or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of default hereunder on
the part of Tenant, in addition to any and all rights or remedies which Landlord
may have at law or in equity pursuant to this Lease or the Purchase and Sale
Agreement, Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(a) a sum which at the time of such termination
of this Lease or at the time of any such re-entry by Landlord, as
the case may be, represents the then value of the excess, if any,
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of (i) the aggregate amount of the Fixed Rent and the Additional Rent under this
Lease which would have been payable by Tenant for the period commencing with
such earlier termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the date contemplated as the expiration date hereof
if this Lease had not so terminated or if Landlord had not so re-entered the
Demised Premises, over (ii) the aggregate rental value of the Demised Premises
for the same period, or
(b) sums equal to the Fixed Rent and the Additional
Rent which would have been payable by Tenant had this Lease not so terminated,
or had Landlord not so re-entered the Demised Premises, payable upon the due
dates therefor specified herein following such termination or such re-entry and
until the date contemplated as the Expiration Date hereof if this Lease had not
so terminated or if Landlord had not so re-entered the Demised Premises,
provided, however, that if Landlord shall relet the Demised Premises during said
period, Landlord shall credit Tenant with the net rents received by Landlord
from such reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the expenses
incurred or paid by Landlord in terminating this Lease or in re-entering the
Demised Premises and in securing possession thereof, as well as the expenses of
reletting, including, without limitation, altering and preparing the Demised
Premises for new tenants, brokers' commissions, legal fees, and all other
expenses properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a period
shorter or longer than the remaining Term, but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by Tenant
to Landlord hereunder nor shall Tenant be entitled in any suit for the
collection of damages pursuant to this subdivision to a credit in respect of any
net rents from reletting, except to the extent that such net rents are actually
received by Landlord. If the Demised Premises or any part thereof should be
relet in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and of the
expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the Term, or any part thereof, before presentation of proof
of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Demised Premises, or part thereof, so relet during the term
of the reletting. Landlord shall not be liable in any way whatsoever for its
failure or refusal to relet the Demised Premises or any part thereof, or if the
Demised Premises or any part thereof are relet, for its failure to collect the
rent under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
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21.2 Successive Suits, etc. Suit or suits for the recovery of
such damages, or any installments thereof, may be brought by Landlord from time
to time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term of this Lease would have
expired if it had not been so terminated under the provisions of Article 19, or
under any provision of law, or had Landlord not re-entered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 21.1.
21.3 Interest. In addition to any other remedies Landlord may
have under this Lease, and without reducing or adversely affecting any of
Landlord's rights and remedies under Article 19, if any Fixed Rent, Additional
Rent or damages payable hereunder by Tenant to Landlord is not paid within
thirty (30) days after demand therefor, the same shall bear interest at the rate
of one and one-half percent (1-1/2%) per month or the maximum rate permitted by
law, whichever is less, from the due date thereof until paid, and the amount of
such interest shall be Additional Rent hereunder.
21.4 Purchase and Sale Agreement. Nothing in this Lease is
intended to or shall in manner whatsoever limit any remedies of either party to
the Purchase and Sale Agreement, which shall be cumulative with any supplement
any remedies set forth in this Lease.
ARTICLE 22
Surrender
22.1 Condition of Demised Premises. (a) On the last day of the
Term or upon any earlier termination of this Lease, or upon any re-entry by
Landlord upon the Demised Premises, Tenant shall, at its own expense, quit and
surrender the Demised Premises to Landlord broom clean, in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease. Tenant shall remove
from the Demised Premises all of Tenant's Property and all personal property and
personal effects of all persons claiming through of under Tenant, and shall pay
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the cost of repairing all damage to the Building and the Demised Premises
occasioned by such removal.
(b) Tenant shall not be obligated, at or before
quitting and surrendering the Demised Premises, to restore the Demised Premises,
or any part thereof, to the state or condition of the Demised Premises, or such
part, existing at any time prior to the Commencement Date, but at the option of
Landlord, Tenant shall be obligated at or before quitting or surrendering the
Demised Premises to restore the same to their state or condition existing prior
to the making of Alterations by Tenant. If Tenant does not perform the
restoration Tenant is obligated to perform pursuant to this Section, Landlord
may (but shall not be obligated to) perform such restoration at the expense of
Tenant and Tenant shall pay Landlord the restoration expense upon rendition of
Landlord's xxxx.
22.2 Tenant's Property. Any Tenant's Property or other
personal property (other than money, securities, documents, or other valuables)
which shall remain in the Demised Premises after the termination of this Lease
shall be deemed to have been abandoned and either may be retained by Landlord as
its property or may be disposed of in such manner as Landlord may see fit;
provided, however, that, notwithstanding the foregoing, Tenant will, upon
request of Landlord made not later than thirty (30) days after the date of
termination of this Lease, promptly remove from the Demised Premises any
Tenant's Property or other personal property at Tenant's own expense. If such
Tenant's Property or other personal property or any part thereof shall be sold,
Landlord may receive and retain the proceeds of such sale and apply the same, at
its option, against the expenses of the sale, cost of moving and storage, any
arrears of Fixed Rent or Additional Rent and damages to which landlord may be
entitled hereunder or pursuant to law. Any excess proceeds shall be the property
of Landlord. Any expense incurred by Landlord in removing or disposing of such
Tenant's Property or other personal property shall be reimbursed to Landlord by
Tenant on demand.
22.3 Survival. Tenant's obligations under this Article shall
survive the termination of this Lease.
ARTICLE 23
Access to Demised Premises
23.1 Landlord's Rights. Landlord and Landlord's Agents shall
have the following rights in and about the Demised Premises: (i) to enter the
Demised Premises upon prior notice (except in the case of emergency) to Tenant
at all reasonable times to examine the Demised Premises or for any of the
purposes set forth in this Article, the Purchase and Sale Agreement or the
Enviromental Indemnification Agreement or for the purpose of performing any
obligation of Landlord under this Lease or
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exercising any right or remedy reserved to Landlord in this Lease; (ii) to
exhibit the Demised Premises to others; and (iii) in connection with any of
Landlord's obligations under this Lease.
23.2 No Eviction. The exercise by Landlord or Landlord's
Agents of any right reserved to Landlord in this Article shall not constitute an
actual or construction eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord, or Landlord's Agents,
or upon any Superior Lessor or Superior Mortgagee by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
ARTICLE 24
Waivers
24.1 Order of Payment. If Tenant is in arrears in payment of
Fixed Rent or Additional Rent, Tenant waives Tenant's right, if any, to
designate the items which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items which any such payments shall be credited.
ARTICLE 25
Miscellaneous.
25.1 Delivery of Keys, etc. No act or thing done by Landlord
or Landlord's Agents during the Term shall constitute a valid acceptance of a
surrender of the Demised Premises or any remaining portion of the Term except a
written instrument accepting such surrender, executed by Landlord. The failure
of Landlord to seek redress for breach or violation of, or to insist upon the
strict performance of, any term, covenant or condition of this Lease on Tenant's
part to be observed or performed shall not prevent a subsequent act or omission
which would have originally constituted a breach or violation of any such term,
covenant or condition from having all the force and effect of an original breach
or violation. The receipt by Landlord of Rent with knowledge of the breach or
violation by Tenant of any term, covenant or condition of this Lease on Tenant's
part to be observed or performed shall not be deemed a waiver of such breach or
violation. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be set forth in a written instrument executed
by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the aggregate of all Fixed Rent and Additional Rent then due, no endorsement or
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statement on any check or no letter accompanying any check or other Rent payment
in any such lesser amount and no acceptance of any such check or other such
payment by Landlord shall constitute an accord and satisfaction and Landlord may
accept any such check or payment without prejudice to landlord's right to
recover the balance of such Rent or to pursue any other legal remedy.
25.2 Right to Cure. If Tenant shall default in the performance
of any of Tenant's obligations under this Lease, Landlord, without thereby
waiving such default, may (but shall not be obligated to) perform the same for
the account and at the expense of Tenant, without notice in a case of emergency,
and in any other case only if such default continues after the expiration of ten
(10) days from the date Landlord gives Tenant notice of the default. All costs
and expenses incurred by Landlord under this Section shall be payable by Tenant
immediately upon demand of Landlord.
25.3. Notices. Any notice, statement, request, demand,
consent, approval or other communication required or permitted to be given,
rendered or made by either party to the other, pursuant to this Lease or
pursuant to any applicable law or requirement of public authority, shall be in
writing (whether or not so stated elsewhere in this Lease) and shall be deemed
to have been properly given, rendered or made only if (i) delivered by hand; or
(ii) sent by reputable overnight delivery service addressed to the other party
at the address set forth above; or (iii) sent by registered or certified mail,
return receipt requested, posted in a United States post office station or
letter box in the continental United States, addressed to the other party at the
address hereinabove set forth (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the
Building), and in the event notice is given pursuant to (iii) above shall be
deemed to have been given, rendered or made on the day so mailed, unless mailed
outside of the State of Connecticut, in which case it shall be deemed to have
been given, rendered or made on the first business day after the day so mailed.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, statements, demands, consents, approvals or other
communications intended for it.
25.4 No Representations, Entire Agreement. Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to the extent that
the same are expressly set forth in this Lease or in any other written agreement
which may be made between the parties concurrently with the execution and
delivery of this Lease and shall expressly refer to this Lease. Except as set
forth in the Purchase and Sale Agreement, all understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith, which alone
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fully and completely express the agreement of the parties and which are entered
into after full investigation, neither party relying upon any statement or
representation not embodied in this Lease or any other written agreement(s) made
concurrently herewith.
25.5 Changes and Modifications. No agreement shall be
effective to change, modify, waive, release, discharge, terminate or effect an
abandonment of this Lease, in whole or in part, unless such agreement is in
writing, refers expressly to this Lease and is signed by the party against whom
enforcement of the change, modification, waiver, release, discharge, termination
or effectuation of the abandonment is sought.
25.6 Successors and Assigns. Except as otherwise expressly
provided in this Lease, the obligations of this Lease shall bind and benefit the
successors and assigns of the parties hereto with the same effect as if
mentioned in each instance where a party is named or referred to; provided,
however, that (a) no violation of the provisions of Article 5 shall operate to
vest any rights in any successor or assignee of Tenant and (b) the provisions of
this Article shall not be construed as modifying the conditions of limitation
contained in Article 20.
25.7 Inability to Perform. The obligations of Tenant hereunder
shall be in no wise affected, impaired or excused, nor shall Landlord have any
liability whatsoever to Tenant, because (a) Landlord is unable to fulfill, or is
delayed in fulfilling, any of its obligations under this Lease by reason of
Force Majeure; or (b) of any failure or defect in the supply, quantity or
character of electricity or water furnished to the Demised Premises by reason of
any requirement, act or omission of the public utility or others serving the
Building with electric energy, steam, oil, gas or water, or for any other reason
whether similar or dissimilar, beyond Landlord's reasonable control.
25.8 Notice of Accidents. Tenant shall give notice to
Landlord, promptly after Tenant learns thereof, of (a) any accident in or about
the Demised Premises or the Building for which Landlord might be liable, (b) any
fire in the Demised Premises, (c) all damage to or defects in the Demised
Premises including the fixtures, equipment and appurtenances thereof for the
repair of which Landlord might be responsible, and (d) all damage to or defects
in any parts or appurtenances of the air-conditioning, elevator, plumbing,
electrical, sanitary, mechanical or other service or utility systems located in
or passing through the Demised Premises.
25.9 Corporate Tenant. In the event Tenant is a corporation:
(i) the parties executing this Lease on behalf of Tenant hereby covenant and
warrant that Tenant is a duly organized Delaware corporation or foreign
corporation duly qualified to do business in Connecticut and all franchise and
corporate taxes have been paid; (ii) all forms, reports, fees and
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other documents necessary to comply with applicable law and maintain good
standing will be filed when due; (iii) each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of Tenant in accordance with its by-laws and
that this Lease is binding upon Tenant in accordance with its terms; and (iv)
Tenant shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of a resolution of its Board of Directors authorizing
or ratifying the execution of this Lease.
25.10 Purchase and Sale Agreement. The terms and conditions of
the Purchase and Sale Agreement shall survive the termination or expiration of
this Lease. In the event that terms and conditions of the Purchase and Sale
Agreement expressly contradict the terms and conditions of the Lease, the terms
and conditions of the Purchase and Sale Agreement shall be controlling. Landlord
and Tenant agree that the terms of the easements and licenses granted pursuant
to the Purchase and Sale Agreement which are stated to be effective during the
Term of this Lease are hereby incorporated herein by reference.
25.11 Quiet Enjoyment. If and so long as Tenant pays the Fixed
Rent and Additional Rent and performs and observes all the terms, covenants and
conditions hereof on the part of Tenant to be performed and observed, Tenant
shall quietly enjoy the Demised Premises during the Term without hindrance or
molestation by any one claiming by, through or under Landlord, subject, however,
to the terms of this Lease.
25.12 Governing Law, Severability, Captions. Irrespective of
the place of execution or performance, this Lease shall be governed by and
construed in accordance with the Laws of the State of New York. If any provision
of this Lease or the application thereof to any person or circumstances shall,
for any reason and to any extent, be invalid or unenforceable, the remainder of
this Lease and the application of that provision to other persons or
circumstances shall not be affected but rather shall be enforced to the extent
permitted by law. The table of contents, captions, headings and titles in this
Lease are solely for convenience of reference and shall not affect its
interpretation. This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted. Each covenant, agreement, obligation or other provision of this Lease
on Tenant's part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
25.13 Sublease. It is understood and agreed that
Landlord is a tenant of a portion of the Demised Premises
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pursuant to that certain lease agreement by and between Xxxx Properties, Inc.
and SCM Corporation dated June 15, 1990 (the "Xxxx Lease"), and that this Lease
shall be subject and subordinate in all respects to the Xxxx Lease. Tenant
hereby acknowledges that it has received a copy of and reviewed the Xxxx Lease,
and Tenant hereby agrees that if Tenant shall cause a default pursuant to the
Xxxx Lease, said default shall be regarded as a default pursuant to this Lease,
and Landlord shall have all rights and remedies for such default as set forth in
this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease as of he day and year first above written.
LANDLORD:
XXXXX CORONA CORPORATION
By_____________________________
Name:
Its:
Duly Authorized
TENANT:
X.X. XXXXXX CENTER, INC.
By_____________________________
Name:
Its:
Duly Authorized
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Exhibit A
[Legal Description of Property]
EXHIBIT 8.1(d)
ENVIRONMENTAL
INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT, dated as of
February 28, 1995 ("Agreement"), is by and among the Xxxxx Corona Corporation, a
New York corporation having its a place of business at 000 XXX Xxxxx 00,
Xxxxxxxx, Xxx Xxxx 00000 ("SCC"), and X.X. Xxxxxx Center, Inc. (sheltered
workshop for handicapped), a New York not-for-profit corporation with an office
at Xxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, ( "JMMC").
W I T N E S S E T H:
WHEREAS, JMMC has entered into a Purchase and Sale Agreement with SCC,
dated as of February 28, 1995 ("Purchase Agreement"), to lease from SCC a 12.704
acres parcel of land located on the south side of SCC's property at 000 XXX
Xxxxx 00, in the Town of Cortlandville, New York (the "Land"), and as a
condition to said Purchase Agreement, prior to closing title pursuant to said
Purchase Agreement, JMMC shall lease said Land from SCC, and sublease the
building and the other improvements located on the Land now owned by Xxxx X.
Xxxxxxx and under lease to SCC (the "Office Building"), as more particularly
described in Exhibit A attached hereto (the Office Building and the Land are
collectively referred to herein as the "Property"); and
WHEREAS, SCC intends to purchase the Office Building from Xxxx X.
Xxxxxxx and, pursuant to the Purchase Agreement, reconvey the entire Property to
JMMC thereafter; and
WHEREAS, pursuant to the Purchase Agreement, JMMC intends to
purchase the Property from SCC; and
WHEREAS, SCC intends to petition shortly after the date hereof the New
York State Department of Environmental Conservation to change the boundary
description in the New York State Registry of Inactive Hazardous Waste Disposal
Sites of the "SCM; Cortlandville State Superfund Site" so that the Property no
longer falls within the description of that Site or is otherwise de-listed from
the Registry; and
WHEREAS, JMMC and SCC require, as a condition and an inducement for
each to enter into the contemplated Purchase Agreement, that the parties enter
into, execute, deliver and perform this Environmental Indemnification Agreement.
NOW THEREFORE, the parties hereby agree as follows:
Section 1. Definitions. All capitalized terms used in this
Agreement and not hereafter defined shall have the meanings set
forth below.
(a) "Disposal" has the same meaning as given to that term in
the Solid Waste Disposal Act as amended by the Resource Conservation and
Recovery Act, (42 U.S.C. Section 6901 et seq.)
(b) "Environment" means any water or water vapor, any land,
including land surface or subsurface, air, fish, wildlife, flora, fauna, biota
and all other natural resources.
(c) "Environmental Laws" mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and sanitation
laws, statutes, ordinances and codes relating to the protection, conservation or
remediation of the Environment and/or governing the use, storage, treatment,
generation, transportation, processing, handling, production or Disposal of
Hazardous Substances or solid waste, and the rules, regulations, guidelines,
decisions, orders and directives of federal, state and local governmental
agencies, courts and authorities with respect thereto.
(d) "Environmental Permits" mean all permits, licenses,
approvals, authorizations, consents or registrations required by any applicable
Environmental Law in connection with: (i) the ownership, construction,
equipping, use and/or operation of the Property, (ii) the storage, treatment,
generation, transportation, processing, handling, production or disposal of
Hazardous Substances or solid wastes, or (iii) the sale, transfer or conveyance
of the Property.
(e) "Hazardous Substance" means, without limitation, any
flammable, explosive or radioactive materials, radon, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, oil, petroleum,
petroleum products, methane, hazardous materials, hazardous wastes, hazardous or
toxic substances or related materials, pollutants, and toxic pollutants, as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the
Solid Waste Disposal Act as amended by the Resource Conservation and Recovery
Act, (42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601, et seq.), the Federal Water Pollution Control
Act, as amended, (33 U.S.C. Sections 1251, et seq.), the Oil Pollution Control
Act of 1990(33 U.S.C. 2701, et seq.), the Occupational Safety and Health Act of
1970, as amended (29 U.S.C. Sections 651, et seq.), Article 12 of the New York
State Navigation Law, Articles 17 and 27 of the New York State Environmental
Conservation Law or any other applicable Environmental Law.
(f) "JMMC Indemnitees" mean the JMMC, its successors, and all
of their directors, officers, board members, employees, agents and
representatives, acting in their official capacity.
(g) "Lease" means that certain lease by and between JMMC, as
tenant, and SCC, as landlord, as more particularly described in the Purchase
Agreement.
(h) "SCC Indemnitees" mean SCC, its parent, affiliates and
successors, and all of their directors, officers, shareholders, employees,
agents and representatives, acting in their official capacity.
(i) "Release" has the same meaning as given to that term in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.), and the regulations
promulgated thereunder.
Section 2. SCC's Representations and Warranties. Except as set forth in
Exhibit B, SCC hereby represents and warrants to the JMMC Indemnitees that, to
the best of SCC's knowledge:
(a) The Property is not being and has not been used in
violation of any applicable Environmental Law for: (i) the storage, treatment,
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) a landfill or other waste management or disposal site,
(iii) military, manufacturing or industrial purposes, or (iv) the storage of
petroleum or petroleum based products.
(b) Underground storage tanks are not and have not
been located on the Property.
(c) The soil, subsoil, bedrock, surface water and groundwater
of the Property are free of Hazardous Substances, other than any such substances
that occur naturally, at levels above applicable standards, criteria and
guidance of the New York State Department of Environmental Conservation set for
the protection of human health and the environment.
(d) There has been no Release or threat of a Release of any
Hazardous Substance on, at, to or from the Property which through soil, subsoil,
bedrock, surface water or groundwater migration could come to be located on or
at the Property, and SCC has not received any form of notice or inquiry from any
federal, state or local governmental agency or authority, any prior operator,
owner, tenant, subtenant, licensee or occupant of the Property or any other
person with regard to a Release or the threat of a Release of any Hazardous
Substance on, at, to or from the Property.
(e) These representations and warranties shall survive the
signing of this Agreement, and continue and remain in full force and effect,
until JMMC takes possession of the Property.
Section 3. JMMC's Representations and Warranties. Except
for conditions or actions that were caused by SCC, JMMC hereby
represents and warrants to SCC Indemnitees that, to the best of
JMMC's knowledge:
(a) All Environmental Permits necessary for the proposed use
and operation of the Property by JMMC will be obtained and will be in full force
and effect by the time JMMC occupies the Property.
(b) This representations and warranties shall survive the
signing of this Agreement, and continue and remain in full force and effect,
until JMMC takes possession of the Property.
Section 4. Covenants of SCC. SCC hereby covenants and agrees with the
JMMC Indemnitees as follows:
(a) SCC shall promptly provide the JMMC with a copy of all
notifications, written complaints, claims, citations, demands, inquiries or
reports which it gives to or receives with respect to (i) environmental
conditions at or affecting the Property, or (ii) any past or present Release or
the threat of a Release of any Hazardous Substance on, at, to or from the
Property. If SCC receives or becomes aware of any such notification which is not
in writing or otherwise capable of being copied, SCC shall promptly advise the
JMMC of such verbal, telephonic or electronic notification and confirm such
notice in writing.
(b) SCC shall petition, at its sole expense and at no cost or
expense to JMMC, shortly after the date hereof, the New York State Department of
Environmental Conservation to change the boundary description in the New York
State Registry of Inactive Hazardous Waste Disposal Sites ("Registry") of the
"SCM; Cortlandville State Superfund Site" so that the Property no longer falls
within the description of that site or to otherwise delist the Property from the
Registry.
Section 5. Indemnification by SCC.
(a) SCC hereby covenants and agrees, at its sole cost and
expense, to indemnify, protect, defend, save and hold harmless the JMMC
Indemnitees from and against any and all damages (other than consequential
damages or lost profits), losses, liabilities, obligations, fines, amounts in
contribution, penalties, claims, litigation, demands, defenses, judgments,
suits, actions, proceedings, costs, disbursements or expenses (including,
without limitation, reasonable attorneys' and experts' fees, expenses and
disbursements) of any kind or nature whatsoever which may at any time be imposed
upon, incurred by or asserted or awarded against any or all of the JMMC
Indemnitees relating to, resulting from or arising out of: (i) the equipping,
operation or use of the Property prior to the date of this Agreement in
violation of any applicable Environmental Law for the storage, treatment,
generation, transportation, processing, handling, management, production or
disposal of any Hazardous Substance or solid waste,
(ii) a material misrepresentation or inaccuracy in any
of SCC's representations or warranties contained in this Agreement, or a
material breach of or failure to perform any of SCC's covenants contained
herein, (iii) the presence of any Hazardous Substance at, on or in the Property
as of the date of this Agreement, (iv) the presence of any Hazardous Substance
as of the date of this Agreement in the Environment adjacent to or in the
vicinity of the Property due to an act or omission of SCC, its officers,
directors, agents, representatives, employees, contractors, subcontractors,
invitees or licensees which later migrates onto the Property, (v) the Release,
threat of Release, or Disposal, of any Hazardous Substance or solid waste on,
at, to or from the Property or to the Environment adjacent to or in the vicinity
of the Property which later migrates onto the Property, after the date of this
Agreement, caused by an act or omission of SCC, its officers, directors, agents,
representatives, employees, contractors, subcontractors, invitees, or licensees,
(vi) a violation of any applicable Environmental Law at or affecting the
Property by SCC, its officers, directors, agents, representatives, employees,
contractors, subcontractors, invitees, or licensees, or (vii) non-compliance
with any Environmental Permit at or affecting the Property by SCC, its officers,
directors, agents, representatives, employees, contractors, subcontractors,
invitees, or licensees, (collectively, the "SCC Indemnified Matters"); provided,
however, that SCC Indemnified Matters shall in no respect include any action or
condition to the extent that it was caused by one or all of the JMMC
Indemnitees, or their licensees, contractors, subcontractors, invitees,
subtenants or occupants.
(b) The liability of SCC to the JMMC Indemnitees hereunder
shall in no way be limited, abridged, impaired or otherwise affected by (i) any
amendment or modification of the Purchase Agreement by or for the benefit of the
JMMC, unless said amendment or modification so states, (ii) the purchase of the
Property by JMMC, (iii) any exculpatory provision contained in the Purchase
Agreement limiting JMMC's recourse to SCC, (iv) any applicable statute of
limitations, (v) any investigation or inquiry conducted by or on the behalf of
JMMC Indemnitees or any information which the JMMC Indemnitees may have or
obtain with respect to the environmental or ecological condition of the
Property, (vi) the sale, assignment, subleasing, transfer or conveyance of all
or part of the Property or SCC's interests and rights in, to, and under the
Purchase Agreement, (vii) the termination of the Purchase Agreement, or (viii)
the release or discharge, in whole or in part, of SCC, in any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding.
(c) The indemnification contained herein is wholly independent
of and in addition to any obligation which SCC may have to any or all of the
JMMC Indemnitees as a matter of law or regulation or under other agreement or
instrument.
Section 6. Covenants of JMMC. The JMMC hereby covenants and agrees with
SCC Indemnitees as follows:
(a) The JMMC shall promptly provide SCC with a copy of any and
all notifications, written complaints, claims, citations, demands, inquiries or
reports which it gives to or receives with respect to (i) environmental
conditions at or affecting the Property, or (ii) any past or present Release or
the threat of a Release of any Hazardous Substance on, at, to or from the
Property. If the JMMC receives or becomes aware of any such notification which
is not in writing or otherwise capable of being copied, the JMMC shall promptly
advise SCC of such verbal, telephonic or electronic notification and confirm
such notice in writing.
(b) Prior to JMMC's purchase of the Property, and to the
extent caused by JMMC's activities at the Property or the activities of JMMC's
operators, subtenants, licensees, invitees and occupants at the Property, the
JMMC shall, at its sole expense and at no cost or expense to SCC, undertake and
complete, with due care so as not to unreasonably interfere with the conduct of
SCC's business, all investigations, studies, sampling and testing and all
removal or remedial actions necessary to contain, remove and clean up all
Releases or threats of Releases of Hazardous Substances at the Property as
required by applicable Environmental Laws. If JMMC fails to promptly remove or
otherwise cleanup such Hazardous Substances, SCC may undertake such removal or
cleanup, and the costs and expenses thereof shall be borne by JMMC and will be
paid as additional rent under the Lease Agreement.
(c) Prior to JMMC's purchase of the Property, JMMC shall keep,
and shall require all operators, subtenants, licensees, invitees and occupants
of the Property to keep, the Property free of all Hazardous Substances other
than those Hazardous Substances used in the course of JMMC's business.
(d) Prior to JMMC's purchase of the Property, JMMC shall
notify SCC within 30 days of the existence at the Property of any hazardous
materials used, handled, produced, stored, treated or disposed, in regulated
quantities or quantities greater than 55 gallons or 200 kg., at any one time,
for which records, manifests, material safety data sheets or periodic reports
are to be kept or filed by JMMC according to applicable Environmental Laws.
(e) Prior to JMMC's purchase of the Property, JMMC shall
comply with, and shall require all operators, subtenants, licensees, invitees
and occupants of the Property to comply with, all applicable Environmental Laws
and shall obtain and comply with, and shall require all operators, tenants,
subtenants, licensees, invitees and occupants of the Property to obtain and
comply with, all applicable Environmental Permits.
(f) Prior to JMMC's purchase of the Property, JMMC shall not
cause or permit any change to be made in the present or intended use of the
Property which would (i) involve the storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, other than those Hazardous Substances used in the course of JMMC's
business, (ii) involve the use of the Property for a landfill, any other waste
disposal site, or military purposes, (iii) involve the use of the Property for
the storage of petroleum or petroleum based products other than those used in
the course of JMMC's business, (iv) violate any applicable Environmental Law,
(v) constitute non-compliance with any Environmental Permit, or (vi), without
SCC's express written prior approval, substantially increase the risk of a
Release of a Hazardous Substance by changing the nature or manner in which JMMC
conducts its business as of the date JMMC takes possession of the Property.
(g) Prior to JMMC's purchase of the Property, JMMC shall at
all times allow SCC Indemnitees and their officers, employees, agents,
representatives, contractors and subcontractors reasonable access to the
Property for the purpose of ascertaining environmental conditions and
compliance, including, but not limited to, any soil or groundwater
investigations deemed necessary by SCC or the performance of an environmental
audit or assessment, upon the condition that due care is exercised so as not to
unreasonably interfere with the conduct of JMMC's business ("Audit"). If a
breach of any other covenant in this Section 6 is discovered during the course
of the Audit, the fees and expenses of such Audit shall be borne by JMMC and
will be paid as additional rent under the Lease Agreement.
(h) After the purchase, JMMC shall give SCC, the DEC and other
appropriate governmental authorities, and their employees, contractors,
subcontractors and consultants, access to the Property, at reasonable times and
upon reasonable notice, for the purposes of monitoring and sampling pursuant to
the Settlement Agreement, a copy of which is attached as Exhibit B.
(i) JMMC shall not Release, nor permit its operators,
subtenants, licensees, invitees and occupants to Release, any Hazardous
Substance to the Environment at the Property except pursuant to all applicable
Environmental Permits.
Section 7. Indemnification by JMMC of SCC Indemnitees.
(a) JMMC hereby covenants and agrees, at its sole cost and
expense, to indemnify, protect, defend, save and hold harmless the SCC
Indemnitees from and against any and all damages (other than consequential
damages or lost profits), losses, liabilities, obligations, fines, amounts in
contribution, penalties, claims, litigation, demands, defenses, judgments,
suits, actions, proceedings, costs, disbursements or expenses (including,
without limitation, reasonable attorneys' and experts' fees, expenses and
disbursements) of any kind or nature
whatsoever which may at any time be imposed upon, incurred by or asserted or
awarded against any or all of the SCC Indemnitees relating to, resulting from or
arising out of: (i) the equipping, operation or use of the Property after the
date of this Agreement in violation of any applicable Environmental Law for the
storage, treatment, generation, transportation, processing, handling,
management, production or disposal of any Hazardous Substance or solid waste,
(ii) a material misrepresentation or inaccuracy in any of JMMC's representations
or warranties contained in this Agreement, or a material breach of or failure to
perform any of JMMC's covenants contained herein, (iii) the presence of any
Hazardous Substance at, on or in the Property as of the date of this Agreement,
(iv) the Release, threat of Release, or Disposal, of any Hazardous Substance or
solid waste on, at, to or from the Property or to the Environment adjacent to or
in the vicinity of the Property which later migrates onto the Property, after
the date of this Agreement, caused by an act or omission of JMMC, its officers,
directors, agents, representatives, employees, contractors, subcontractors,
invitees, subtenants, occupants or licensees, (v) a violation of any applicable
Environmental Law at or affecting SCC's adjacent real property by JMMC, its
officers, directors, agents, representatives, employees, contractors,
subcontractors, invitees, subtenants, occupants or licensees, or (vi)
non-compliance with any Environmental Permit at or affecting the Property by
JMMC, its officers, directors, agents, representatives, employees, contractors,
subcontractors, invitees, subtenants, occupants or licensees, (collectively, the
"JMMC Indemnified Matters"); provided, however, that JMMC Indemnified Matters
shall in no respect include any action or condition to the extent that it was
caused by one or all of the SCC Indemnitees, or their licensees, contractors,
subcontractors, invitees, subtenants or occupants.
(b) The liability of the JMMC to the SCC Indemnitees hereunder
shall in no way be limited, abridged, impaired or otherwise affected by (i) any
amendment or modification of the Purchase Agreement by or for the benefit of
SCC, unless said amendment or modification so states, (ii) the purchase of the
Property by JMMC, (iii) any exculpatory provision contained the Purchase
Agreement limiting SCC's recourse to JMMC, (iv) any applicable statute of
limitations, (v) the sale, assignment, subleasing, transfer or conveyance of all
or part of the Property or the JMMC's interests and rights in, to and under the
Purchase Agreement, (vi) the termination of the Purchase Agreement, (vii) the
release or discharge, in whole or in part, of JMMC in any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding, or (ix) any other circumstances which might otherwise
constitute a legal or equitable release or discharge, in whole or in part, of
JMMC under the Lease Agreement.
(c) The indemnification contained herein is wholly
independent of and in addition to any obligation which JMMC may
have to any or all of the SCC Indemnitees as a matter of law or
regulation or under other agreement or instrument.
Section 8. Independence. The indemnifications contained herein are
wholly independent of and in addition to any obligation which the Parties may
have to each other as a matter of law or regulation or under any other agreement
or instrument.
Section 9. Governing Law. This Agreement shall be governed by,
construed in accordance with and enforceable under the laws of the State of New
York, without regard or reference to its conflict of laws and principles.
Section 10. Notices. All notices, certificates and other communications
hereunder shall be in writing and shall be either delivered personally or sent
by certified mail, postage prepaid, return receipt requested, or by Federal
Express, addressed as follows or to such other address as any party may specify
in writing to the other:
To SCC: Attn: Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxx Corporation
000 XXX Xxxxx 00
Xxxxxxxx, Xxx Xxxx 00000
To JMMC: X. X. Xxxxxx Center, Inc.
c/o Riehlman, Xxxxxx and Xxxxxx
0 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000-0000
Section 11. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the parties.
Section 12. Severability. In the event that any provision of this
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 13. Amendments, Changes and Modifications. This
Agreement may not be amended, changed, modified, altered or
terminated except in a writing executed by both Parties.
Section 14. Execution of Counterparts. This 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 15. This Agreement Controlling. JMMC and SCC hereby agree that,
in the event there is a conflict between the terms of this Agreement, the Lease
and the Purchase Agreement, the terms of this Agreement shall be controlling.
Section 16. Survival. This Agreement shall survive: (i) an
extension of the Purchase Agreement and/or Lease, (ii) closing of
title pursuant to the Purchase Agreement, (iii) termination of the Purchase
Agreement, (iv) sublease or assignment of the Lease, and/or (v) transfer of the
Property by JMMC.
Section 17. Recording. Either party shall have the right to
record this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
XXXXX CORONA CORPORATION
By:_______________________________
Its ______________________________
X.X. XXXXXX CENTER, INC.
By:________________________________
Its________________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF CORTLAND)
On the _____ day of __________, 1995 personally appeared
________________________ to me personally known and known to me to be the
same person described in and who executed the foregoing instrument, and he duly
acknowledged to me that he executed the same.
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF CORTLAND)
On the ____ day of _________, 1995 personally appeared
________________________ to me personally known and known to me to be the
same person described in and who executed the foregoing instrument, and he duly
acknowledged to me that he executed the same.
------------------------
Notary Public
Exhibit A
PROPOSED CONVEYANCE TO XXXXXX CENTER:
BEGINNING at a point marked by a #5 rebar with plastic cap stamped "XX XXXXXXXX
PLS 049012" set in the westerly line of NEW YORK STATE ROUTE 13, said point
being in the southeasterly corner of a small cemetery, said point also being
located NORTH 83 degrees, 59 minutes, 50 seconds WEST a distance of 50.06 feet
from the centerline of the existing pavement of said NEW YORK STATE ROUTE 13,
said point in the centerline being located SOUTH 31 degrees, 33 minutes, 10
seconds WEST as measured along said centerline a distance of 1834.99 feet from
the intersection of said centerline of NEW YORK STATE ROUTE 13 and the
centerline of LIME HOLLOW ROAD;
THENCE running SOUTH 31 degrees, 14 minutes, 11 seconds WEST along said westerly
line of NEW YORK STATE ROUTE 13 and passing through a #5 rebar with plastic cap
stamped "XX XXXXXXXX/PLS 049012" found at 74.01 feet, a total distance of 653.85
feet to a point marked by a #5 rebar with plastic cap stamped "XX XXXXXXXX/PLS
049012" found in said westerly line of NEW YORK STATE ROUTE 13;
THENCE running NORTH 57 degrees, 55 minutes, 53 seconds WEST along the southerly
edge of an existing asphalt driveway, a distance of 236.00 feet to a point
marked by a #5 rebar with plastic cap stamped "XX XXXXXXXX/PLS 049012" set at an
angle point in said asphalt paving;
THENCE running SOUTH 77 degrees, 49 minutes, 00 seconds WEST along the
southeasterly line of asphalt paving a distance of 61.00 feet to a point marked
by a #5 rebar with plastic cap stamped "XX XXXXXXXX/PLS 049012";
THENCE running SOUTH 35 degrees, 39 minutes, 16 seconds WEST along the easterly
line of asphalt paving and a gravel parking lot a distance of 458.00 feet to a
point marked by a #5 rebar with plastic cap stamped "XX XXXXXXXX/PLS 049012";
THENCE running NORTH 57 degrees, 02 minutes, 34 seconds WEST along the southerly
line of the gravel parking lot a distance of 272.47 feet to a point marked by a
#5 rebar with plastic cap stamped "XX XXXXXXXX/PLS 049012";
THENCE running NORTH 31 degrees, 10 minutes, 21 seconds EAST along the westerly
line of the gravel parking lot and the westerly line of asphalt paving a
distance of 495.51 feet to a point marked by a #5 rebar with plastic cap stamped
"XX XXXXXXXX/PLS 049012";
THENCE running NORTH 57 degrees, 55 minutes, 53 seconds WEST a distance of
108.00 feet to a point marked by a #5 rebar with plastic cap stamped "XX
XXXXXXXX/PLS 049012";
THENCE running NORTH 32 degrees, 00 minutes, 17 seconds EAST a distance of
579.39 feet to a point marked by a #5 rebar with plastic cap stamped "XX
XXXXXXXX/PLS 049012";
THENCE running SOUTH 57 degrees, 55 minutes, 53 seconds EAST a distance of
536.39 feet to a point marked by a #5 rebar with plastic cap stamped "XX
XXXXXXXX/PLS 049012" set for a new corner;
THENCE running SOUTH 83 degrees, 59 minutes, 50 seconds EAST and passing through
a #5 rebar with plastic cap stamped 'XX XXXXXXXX/PLS 049012" found in the
southwesterly corner of a small cemetery at a distance of 2.42 feet, a total
distance of 168.41 feet as measured along the southerly line of said small
cemetery to the PLACE of BEGINNING and CONTAINING 12.704 acres (554,379 square
feet) more or less of land.
THE ABOVE DESCRIBED PARCEL OF LAND IS ALSO SHOWN ON A SURVEY MAP
BY STOCKWIN SURVEYING DATED 02/16/95, AND ENTITLED "LANDS OF:
HSCM-10, INC., (reputed owner)" AND LABELED AS FILE NO. 9501-JMC-
R, SIGNED AND CERTIFIED BY R. XXXXX XXXXXXXX, PLS LICENSE NO.
049012.
Exhibit B
This is Exhibit B to the Environmental Indemnification
Agreement, dated as of February 28, 1995, by and among the Xxxxx
Xxxxxx Corporation ("SCC") and X. X. Xxxxxx Center, Inc.
SCC hereby discloses that the Property is part of a site which the New
York State Department of Environmental Conservation has listed on the New York
State Registry of Inactive Hazardous Waste Disposal Sites as the "SCM;
Cortlandville State Superfund Site", Site No. 712006. In addition, the
Department of Environmental Conservation has classified Site No. 712006 as a
"Class 2" site indicating that it is a site at which the Department believes
that the hazardous wastes present constitute a significant threat to the public
health or environmental and that action is required.
An investigation has been performed to determine the quality of the
groundwater beneath Site No. 712006, including, among other things, the quality
of the groundwater beneath the Property. The results of that investigation with
regard to the Property, as well as SCC's settlement with the governmental
authorities regarding the cleanup of the Site are set forth in the attached:
(a) Settlement Agreement, State of New York et al. x. Xxxxx
Xxxxxx Corporation, Index No. 87 CV 0190, dated January 18, 1989.
(b) Supplemental Site Investigation Report, dated February
1990, prepared by O'Brien & Xxxx Engineers, Inc. for Xxxxx Corona
Corporation.
(c) Letter Report - Phase I environmental liability
assessment, dated December 12, 1994, prepared by O'Brien & Xxxx
Engineers, Inc. for Xxxxx Corona Corporation.
