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LEASE SUPPLEMENT
AND
SHORT FORM/MEMORANDUM OF LEASE
Dated as of December 15, 2004
between
REXUS L.L.C.,
as Lessor
and
ITT INDUSTRIES, INC.,
as Lessee
LOCATION OF PROPERTY:
Street Address: 000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
County: Erie
Block: 1
Lot: 28
Record and Return to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
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LEASE SUPPLEMENT AND SHORT FORM/MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT AND SHORT FORM/MEMORANDUM OF LEASE, dated as of
December 15, 2004 (this "Supplement"), between REXUS L.L.C., a Delaware limited
liability company with an address at Rexus L.L.C., c/o Societe Generale,
(Canada), as Lessor Administrator, 1501 XxXxxx College, Bureau 0000, Xxxxxxxx,
Xxxxxx, X0X 0XX, Xxxxxx, as the lessor (the "Lessor"), and ITT INDUSTRIES, INC.,
an Indiana corporation, with an address at [ITT Industries, Inc., 0 Xxxx Xxx Xxx
Xxxx, Xxxxx Xxxxxx, XX 00000, Attention: Xxxxxx Xxxxx, Treasurer], as lessee
(the "Lessee").
WHEREAS, pursuant to a Participation Agreement, dated as of the date
hereof (as amended, supplemented, amended and restated or otherwise modified
from time to time, the "Participation Agreement"), among the Lessee, the Lessor,
and Air Bail S.A.S. and RBS Lombard, Inc., as Investors, the Investors and the
Lessor have agreed to finance the acquisition of the certain properties
described therein, including the real property described on Schedule I hereto
(such real property described on Schedule I hereto, the "Land"), and the payment
of certain transaction expenses in connection therewith;
WHEREAS, subject to the terms and conditions set forth in the
Participation Agreement, on the date hereof the Lessor purchased from the Lessee
the Land;
WHEREAS, Lessor and Lessee have executed that certain Master Lease and
Deed of Trust, Deed to Secure Debt and Mortgage dated as of the date hereof (the
"Master Lease"); and
WHEREAS, the Lessor wishes to lease the Land and lease all Improvements
now thereon or which hereafter may be constructed thereon and all Appurtenant
Rights with respect thereto to the Lessee (collectively, the "Subject
Property");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Interpretation. For purposes of this Supplement,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in Appendix A to the Master Lease, and the rules of
interpretation set forth in such Appendix A shall apply to this Supplement.
SECTION 2. The Properties. Effective upon the execution and delivery of
this Supplement by the Lessor and the Lessee, the Subject Property shall be
subject to the terms and provisions of the Master Lease and the Lessor hereby
grants, conveys, transfers and assigns to the Lessee those interests, rights,
titles, estates, powers and privileges provided for in the Master Lease with
respect to the Subject Property.
SECTION 3. Amendments to Master Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Supplement by the Lessor and
the Lessee, the following terms and provisions shall apply to the Master Lease
with respect to the Subject Property:
A. Short Form/Memorandum of Lease. The parties hereto set forth the
following information which shall constitute a short form or memorandum of the
Master Lease, as supplemented by this Supplement:
(a) The name and address of the Lessor as set forth in the Master
Lease is:
Rexus L.L.C.
Societe Generale (Canada), as Lessor Administrator
1501 XxXxxx College
Bureau 0000
Xxxxxxxx, XX, X0X 0XX
Xxxxxx
Attention: Manager, Treasury & Loan Servicing Group
with a copy to:
Rexus L.L.C.
Societe Generale, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
(b) The name and address of the Lessee as set forth in the Master
Lease is:
ITT Industries, Inc.
0 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Treasurer
(c) The lease to which this memorandum of lease pertains is the
Master Lease as supplemented by this Supplement and the other
Supplements.
(d) The leased premises are the Subject Property which includes
the Land more particularly described on Schedule I attached
hereto.
(e) The Lessor acquired title to the Land by deed dated on or
about the date hereof and about to be recorded or filed for
record in the Office of the County Clerk of Erie County, New
York.
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(f) The term of the Master Lease shall commence on the date hereof
and shall expire on December 17, 2014 unless earlier
terminated in accordance with the terms of the Master Lease,
as supplemented by this Supplement.
(g) The Master Lease contains certain purchase rights and options
during the Lease Term pursuant to which the Lessee or its
designee may acquire the Subject Property.
(h) In addition to those terms referred to herein, the Master
Lease contains numerous other terms, covenants and conditions
that affect the Subject Property, and notice is hereby given
that reference should be had to the Master Lease with respect
to the details of such terms, covenants and conditions. A copy
of the Master Lease or of the other agreements referenced
herein or therein may be obtained from any of the parties
hereto at the addresses set forth herein.
B. Ownership of the Subject Property. The parties hereto intend that for
(i) financial accounting purposes with respect to the Lessee, (ii) United States
federal and all United States state and local income tax purposes and (iii)
United States state real estate and commercial law and bankruptcy purposes, (1)
the Lease will be treated as a financing arrangement, (2) the Lessor will be
deemed a lender making a loan to the Lessee in an aggregate amount equal to the
Original Aggregate Property Cost which loan is secured by the Properties, and
(3) the Lessee will be treated as the owner of the Properties described in the
Lease Supplements and will be entitled to all tax benefits ordinarily available
to an owner of properties similar to the Properties for such tax purposes.
Nevertheless, the Lessee acknowledges and agrees that none of the Lessor, the
Arranger or any Investor has made any representations or warranties to the
Lessee concerning the tax, accounting or legal characteristics of the Operative
Documents and that the Lessee has obtained and relied upon such tax, accounting
and legal advice concerning the Operative Documents as it deems appropriate. The
parties hereto will not take any position inconsistent with the intentions
expressed herein. It is the intent of the parties hereto that the Master Lease,
as supplemented by the Lease Supplements, grants a security interest and
mortgage or deed to secure debt or deed of trust, as the case may be, in and on
each Property to the Lessor for the benefit of the Lessor to secure the
performance of the Lessee under and payment of all amounts under this Master
Lease and the other Operative Documents all as more specifically set forth in
each Lease Supplement. Specifically, without limiting the generality of the
foregoing, the parties hereto intend and agree that in the event of any
insolvency or receivership proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency laws or statute of the United
States of America or any state or commonwealth thereof affecting the Lessee, the
Lessor or the Investors or any collection actions, the transactions evidenced by
the Operative Documents shall be regarded as loans made to the Lessee by the
Lessor and the Investors as unrelated third party lenders of the Lessee.
SECTION 4. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Master Lease are hereby ratified and
confirmed and remain in full force and effect. The terms of the Master Lease (as
amended by this Supplement) are by this reference incorporated herein and made a
part hereof.
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SECTION 5. Original Supplement. The single executed original of this
Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the
signature page thereof and containing the receipt of the Lessor therefor on or
following the signature page thereof shall be the original executed counterpart
of this Supplement (the "Original Executed Counterpart"). To the extent that
this Supplement constitutes chattel paper, as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction, no security
interest in this Supplement may be created through the transfer or possession of
any counterpart other than the Original Executed Counterpart.
SECTION 6. Applicable Law; Certain Particular Provisions. This Supplement
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 7. No Merger of Title. There shall be no merger of the Master
Lease (as amended by this Supplement) or of the leasehold estate created thereby
by reason of the fact that the same Person may acquire, own or hold, directly or
indirectly, in whole or in part, (a) the Master Lease (as amended by this
Supplement) or the leasehold estate created thereby or any interest in the
Master Lease (as amended by this Supplement) or such leasehold estate, (b) the
fee estate or ground leasehold estate in the Subject Property, except as may
expressly be stated in a written instrument duly executed and delivered by the
Lessor.
SECTION 8. Notices. All notices, offers, acceptances, rejections,
consents, requests, demands or other communications to or upon the respective
parties hereto shall be in writing and shall be deemed to have been given as set
forth in Section 26.4 of the Master Lease.
SECTION 9. Counterpart Execution. This Supplement may be executed in any
number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
[Signature Blocks on Following Page]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Supplement
to be duly executed by an officer thereunto duly authorized as of the date and
year first above written.
REXUS L.L.C., as Lessor
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
ITT INDUSTRIES, INC., as Lessee
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President,
Treasurer and Director
of Tax
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Schedule I
Legal Description
PARCEL 1
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Xxx Xx. 00, Xxxxxxxx 00,
Xxxxx 0 of the Holland Land Company's Survey, further described as part of the
premises designated and subdivided on map filed in Erie County Clerk's Office
under Cover of Maps No. 553, more particularly bounded and described as follows:
BEGINNING at a point in the easterly line of said Subdivision Tract
distant southerly, at right angles, 20 feet from the southerly line of lands of
the former Lehigh Valley Railroad Company, now Conrail; thence southerly along
the easterly line of said Subdivision Tract 1354.22 feet to the northerly line
of Xxxxxx Avenue as said line is extended easterly in a direct line; running
thence westerly along the northerly line of Xxxxxx Avenue and said line extended
and forming an interior angle of 90 degrees 35' 50" with the last described line
388.2 feet to the easterly line of Xxxxxxxxx Avenue; running thence northerly
along the easterly line of Xxxxxxxxx Avenue and said line extended northerly in
a direct line and forming an interior angle of 90 degrees with the last
described line 1206.09 feet to a point therein 20.0 feet southerly at right
angles from the southerly line of lands of Conrail (formerly the Lehigh Valley
Railway Company); running thence easterly along a line drawn parallel with the
southerly line of said railway company's land and forming an interior angle of
100 degrees 12' 10" with the last described line 428.70 feet to the point or
place of beginning.
PARCEL 2
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being parts of Lots Nos. 15 and 23,
Township 11, Range 7 of the Holland Land Company's Survey, bounded and described
as follows:
BEGINNING at the point or intersection of the northerly line of Xxxxxx
Avenue, as described in deed to the Town of Cheektowaga recorded in Erie County
Clerk's Office in Liber 1450 of Deeds at page 288, with the easterly line of the
lands shown upon map filed in said Clerk's Office under Cover of Maps No. 553;
running thence easterly along said northerly line of Xxxxxx Avenue 365.14 feet
to the westerly line of lands conveyed to Niagara, Lockport & Ontario Power
Company by deed recorded in said Clerk's Office in Liber 1392 of Deeds at page
474; running thence northerly along the westerly line of lands so conveyed to
said power company and forming an interior angle of 93 degrees 43' with the last
described line 1271.80 feet to an angle therein; running thence northerly along
the westerly line of lands so conveyed to said power company and forming an
exterior angle of 184 degrees 50' 10" with the last described course 158.08 feet
to the southerly line of lands conveyed to Buffalo General Electric Company by
deed recorded in said Clerk's Office in Liber 1894 of Deeds at page 49; running
thence westerly along
the southerly line of lands so conveyed to Buffalo General Electric Company and
forming an interior angle of 71(degree) with the last described course 459.28
feet to the easterly line of the lands shown upon said map filed under Cover No.
553; running thence southerly along the easterly line of the lands, shown upon
said map and forming an interior angle of 110(degree) 48' with the last
described line 1268.64 feet to the point or place of beginning.
EXCEPTING THEREFROM a triangular parcel of land situate in the Town of
Cheektowaga, County of Erie and State of New York, being a part of Lots 15 and
23, Township 11, Range 7 of the Holland Land Company's Survey, bounded and
described as follows:
BEGINNING at the point of intersection of the southerly line of lands
conveyed by Xxxxxx Xxxxxxx by executors to the Buffalo General Electric Company
by deed dated June 16, 1926 and recorded in the Office of the Clerk of the
County of Erie in Liber 1894 of Deeds at page 49 and the westerly line of lands
conveyed by same grantors to the Niagara, Lockport and Ontario Power Company by
deed dated January 15, 1917 and recorded in the Office of said Clerk in Liber
1392 of Deeds at page 474; thence southerly along the lands so conveyed to said
Niagara, Lockport and Ontario Power Company, 73.47 feet to a point; thence
westerly, and forming an exterior angle of 107 degrees 25' with the last
described line 117.01 feet to a point on the southerly line of lands conveyed to
the Buffalo General Electric Company as above mentioned at a point on said
southerly line, 118.08 feet westerly measured along said southerly line from the
point of beginning; thence easterly along the southerly line of lands so
conveyed to said Buffalo General Electric Company, and forming an interior angle
of 36 degrees 25' with the last described line 118.08 feet to the point of
beginning.
PARCEL 3
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Farm Xxx 00, Xxxxxxxx 00,
Xxxxx 0 xx xxx Xxxxxxx Xxxx Company's Survey, more particularly bounded and
described as follows:
BEGINNING at the intersection of the east line of land as shown on a
subdivision map filed in the Erie County Clerk's Office under Cover No. 812 with
the south line of Xxxxxx Street, as a sixty (60) foot highway; running thence
easterly along the south line of said Xxxxxx Street 361.83 feet to the west line
of lands of the Niagara, Lockport and Ontario Power Company; running thence
southerly along the said west line of the lands of the Niagara, Lockport and
Ontario Power Company and forming an interior angle of 86 degrees 17' with the
last described line 692.31 feet; thence west on a line parallel with Xxxxxxx
Street and forming an interior angle of 93 degrees 02' 50" with the last
described line 324.10 feet to a point in the said east line of lands as shown on
said subdivision map under Cover No. 812; running thence northerly along said
east line of lands on map under Cover No. 812 and forming an interior angle of
90 degrees 04' 20" with the last described line 687.10 feet to the point or
place of beginning.
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PARCEL 4
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Farm Xxx 00, Xxxxxxxx 00,
Xxxxx 0 xx xxx Xxxxxxx Xxxx Company's Survey, and being more particularly
described as follows:
COMMENCING at the intersection of the east line of lands as shown on map
filed in the office of the Clerk of the County of Erie under Map Cover No. 812
and the north line of Xxxxxx Street, as said north line is projected easterly;
running thence southerly along said east line of lands under Cover No. 812 as
aforesaid 15 feet; running thence easterly on a line which is parallel to the
said north line of Xxxxxx Street as said north line is extended or projected
easterly and forming an exterior angle of 90 degrees 34' 20" with the last
described line 364.31 feet to a point in the west line of lands of the Niagara
Mohawk Power Corporation; running thence northerly along said west line of the
Niagara Mohawk Power Corporation's lands and forming an interior angle of 93
degrees 43' with the last described line 15.03 feet to its intersection with the
said north line of Xxxxxx Street as said north line is extended or projected
easterly; running thence westerly along the said north line of Xxxxxx Street as
the same is projected easterly and forming an interior angle of 86(0) 17' with
the last described line 365.14 feet to a point in the east line of lands as
shown under Cover No. 812 as aforesaid at the point or place of beginning.
PARCEL 5
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Xxx Xx. 00, Xxxxxxxx 00,
Xxxxx 0 of the Holland Land Company's Survey, and being further bounded and
described as follows:
COMMENCING at the intersection of the east line of lands shown under Map
Cover 812 and the north line of Xxxxxx Street as projected easterly; thence
southerly along the east line of Map Cover 812 a distance of 60 feet to a point
(said point being the southeast corner of subdivision lot No. 51, Block S, Map
Covers 553 and 812); thence easterly and along the southerly line of lands
conveyed to the Town of Cheektowaga by deed recorded in the Erie County Clerk's
Office in Liber 1450 of Deeds at page 288 and forming an interior angle of 89
degrees 25' 40" with the last described line a distance of 361.83 feet to a
point in the west line of lands now owned by Niagara Mohawk Power Company;
thence northerly along the lands of the Niagara Mohawk Power Company and forming
an interior angle of 93 degrees 43' with the last described line a distance of
60.13 feet to its intersection with the north line of Xxxxxx Street as said line
is extended or projected easterly; thence westerly along said north line of
Xxxxxx Street as extended easterly and forming an interior angle of 86 degrees
17' with the last described line 365.14 feet to a point in the east line of
Cover No. 812, at the point of beginning.
EXCEPTING land conveyed by Town of Cheektowaga to Ashland Oil & Refining
Company by deed recorded in Deed Liber 5291, page 317.
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PARCEL 6
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Xxx Xx. 00, Xxxxxxxx 00 and
Range 7 of the Holland Land Company's Survey and according to maps filed in the
Erie County Clerk's Office under Covers Nos. 553 and 812 is known as subdivision
lots Nos. 51 and 52 in Block "S", and being further bounded and described as
follows:
BEGINNING at a point in the easterly line of Starlite Avenue (formerly
Xxxxxxxxxx Avenue) at the southwest corner of the aforesaid Subdivision Lot No.
51, thence easterly at right angles to Starlite Avenue and along the south line
of said Subdivision Lot No. 51, 123.60 feet to the southeast corner of said
Subdivision Lot; thence northerly and forming an interior angle of 90 degrees
34' 20" with the last described line and along the east line of Sublots 51 and
52 as aforesaid 60.0 feet to the northeast corner of Sublot 52; thence westerly
along the north line of Sublot 52 and forming an interior angle of 89 degrees
25' 40" with the last described line 124.20 feet to the east line of Starlite
Avenue; thence southerly at right angles to the last described line 60.0 feet to
the point or place of beginning.
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