Exhibit 10.13(b)
LEASE AMENDMENT #1
BETWEEN
THE NEW YORK STATE
DEPARTMENT OF TRANSPORTATION
AND
NEW ENGLAND LAMINATES CO., INC.
LEASE AMENDMENT #1
This Amendment #1, dated February 17, 1995 ("Lease Amendment
#1), to Lease Contract #17000 L10046R (the "Agreement")
entered into the 26th day of February, 1988 by and between:
THE STATE OF NEW YORK ACTING BY AND THROUGH ITS
DEPARTMENT OF TRANSPORTATION, having offices at 1220
Washington Avenue, Albany, New York 12232, hereinafter
referred to as the "Department", and NEW ENGLAND LAMINATES
CO., INC., a New York corporation, having its office at 3
Elm Street, Walden, New York 12586-1805, hereinafter
referred to as the "Lessee". Lessee's Employer
Identification Number is 06-0697511.
WITNESSETH THAT:
WHEREAS, the Department is the owner of the Premises Known
as Stewart International Airport Industrial Park located in
the Town of New Windsor, New York and presently comprising
approximately 8,000 acres, and wherever "Park" is used in
this Lease it shall be construed to mean the Industrial Park
as it may be expanded from time to time; and
WHEREAS, the Department and The Edgewater Stewart Company
("Original Lessee") mutually entered into the Agreement in
February 1988; and
WHEREAS, pursuant to a Consent Agreement of even date
herewith, attached as "Exhibit B", the Department has
approved an assignment by Original Lessee to NEW ENGLAND
LAMINATES CO., INC., Lessee, of all of the obligations,
right, title and interest in the Agreement; and
WHEREAS, the Department and Lessee in consideration of this
assignment and other mutually beneficial consideration
desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and conditions herein contained, the
Agreement is amended as follows:
1. ARTICLE 2, LEASED PREMISES
Delete Sections 2.4, 2.6 and 2.6.1.
2. ARTICLE 3, USE OF LEASED PREMISES
Replace Section 3.1 in its entirety with the following
language:
3.1 The Lessee shall occupy and use the Leased Premises
for the purpose of manufacturing and distribution of
electronic components. Nothing herein shall be construed to
prevent Lessee from using these Leased Premises for any
other lawful purposes consistent with the provisions of this
Agreement and the Park's current Performance and Development
Standards, with the prior approval of the Department, which
approval shall not be unreasonably withheld.
3. ARTICLE 4, RENTAL
a) Replace Section 4.1.2 in its entirety with the
following language:
4.1.2 Commencing on the date of assignment of the
Agreement pursuant to the Consent Agreement and ending
September 30, 1998, Lessee shall pay an annual rent of
forty-five thousand three hundred fifty dollars and
seventy-nine cents ($45,350.79). Notwithstanding the
foregoing, during the first eight months after New York
State execution of this Lease Amendment #1, the Department
will abate the Rent amount each month by $3779.23, which
amount over an eight month period will equal $30,233.84 in
consideration of an upgrade by Assignee of the Facility.
b) Replace Section 4.3 in its entirety with the following
language:
4.3 Assignee shall submit to the Department plans and
specifications for any construction, alterations or changes
in accordance with the Department's Tenant Alteration
Application.
c).Replace Section 4.4 in its entirety with the following
language:
4.4 In accordance with the provisions of Chapter 55 of
the New York State Laws of 1992, Section 18 of the State
Finance Law, if any payments shall not be made within thirty
(30) days of the due date thereof pursuant to this
Agreement, Lessee shall pay a late payment charge equivalent
to interest on the outstanding balance accruing from the due
date and calculated at the underpayment rate set by the New
York State Commissioner of Taxation and Finance, or ten
dollars ($10), whichever is greater. Should Department need
to prosecute collection of rent or additional rent due under
this Agreement by reason of any such amount, or interest
thereon, unpaid in excess of 90 days from the due date
thereof, Lessee shall pay Department collection costs
(inclusive of allocable personnel and/or contractor costs)
for collection of such arrears up to 22 percent of the
amount owed together with interest thereon, as additional
rent.
c) Replace Sections 4.5 in its entirety with the
following language:
4.5 In addition to any other damage provisions herein,
if Lessee defaults under this Agreement and Lease Amendment
#l prior to March 1, 1997 with respect to the payment of
Rent, Lessee shall owe the Department the full amount of the
rent abatement ($30,233.84) set forth in Article
4.1.2 above.
4. ARTICLE 5, ACCEPTANCE, CARE, MAINTENANCE, IMPROVEMENTS
AND REPAIR
a)Replace Section 5.1 in its entirety with the following
language:
5.1 Lessee warrants that it has inspected and studied
the Leased Premises and takes the Leased Premises as
documented in the First Study.
b) Replace Section 5.1.2 in its entirety with the
following language:
5.1.2 Except as may otherwise be provided for herein,
the Department shall not be required to maintain nor to make
any improvements, repairs or restoration upon or to the
Leased Premises or to any of the Leased Premises. The
Department shall not have any obligation to repair, maintain
or restore any improvements upon the Leased Premises.
c) Delete the following sections in their entirety:
5.1.1, 5.1.2, 5.1.3 and 5.1.6.
d) Delete the following first sentence in Section
5.1.5: "The Department will facilitate environmental
approvals as necessary or appropriate for the construction
and operation of the project described herein."
5. ARTICLE 6, ADDITIONAL OBLIGATIONS OF LESSEE
a) Add a new Section 6.12 as follows:
6.12 The Lessee will comply with all of the following
Environmental Provisions:
6.12.1 Definitions. - For the purposes of this
section, the following terms shall have the following
meanings:
Environmental Condition - Environmental Condition means any
pollutants, contaminants, petroleum, crude oil, hazardous
wastes, radioactive materials or any other substances, the
use and/or the removal of which is required or the use of
which is restricted, prohibited or unlawful by any
"Environmental Law".
Environmental Law - Environmental Law means any Federal,
State or local statute, ordinance, regulation or other law
of a governmental authority relating to pollution or
protection of the environment or the regulation of the
storage facilities or handling of contaminants or other
materials which may be harmful to the environment.
Hazardous Material - Hazardous Material means hazardous
materials defined by 40 CFR Part 300.5.
Person - Person means person defined by 40 CFR 300-5.
Responsible Party - Responsible Party means responsible
party defined by 6 NYCRR 375.
6.12.2 The Lessee accepts possession of the Leased Premises
"as is" in its present condition. Such condition having been
inspected, documented and certified by the Lessee in an
environmental baseline study attached as Exhibit D
(hereinafter "First Study"), prior to assuming occupancy of
the Leased Premises. The scope of services for the First
Study has been agreed to by both the Lessee and Department.
6.12.3 Upon the expiration or earlier termination of the
Lease, Department will conduct an environmental baseline
study (the "Second Study") at its sole expense. The same
scope of services as used in the First Study shall serve for
the purposes of the initial scope of services for the Second
Study.
6.12.4 If the findings of the Second Study do not match the
findings of the First Study conducted and these differences
are attributable to activity or operations of Lessee, then
the Lessee shall be liable for, and be required to
undertake, at its sole cost and expense, all remedial
actions necessary to assure that the results of the Second
Study meet and come up to the standards of the results of
the First Study. Lessee shall return the Leased Premises to
Department in the same Environmental Condition, or better,
as when Department provided it to the Lessee, unless
differences in the Environmental
Condition are not attributable to activity or operations of
Lessee. In the event that hazardous material is found on or
under the Leased Premises and it is determined that such
hazardous material existed prior to Lessee's assumption of
the Agreement, the Department accepts responsibility for
such hazardous material to the extent that it is determined
to be the responsibility of the Department and not the
responsibility of other third parties, as determined by law.
6.12.5 Both the First Study and Second Study shall, at a
minimum, address the presence, or lack thereof, of any
adverse Environmental Conditions on or under the Leased
Premises including the presence of any Hazardous Material.
6.12.6 In the event the Lessee creates or discovers at any
time whatsoever, any adverse Environmental Condition, or
Hazardous Material, on the Leased Premises or uses any
hazardous material, it will promptly notify the Department
in writing and comply with all directives of the Department
not otherwise inconsistent with other provisions of this
Agreement.
6.12.7 The Lessee shall be considered the "generator" of
all adverse Environmental Conditions or Hazardous Waste upon
the Leased Premises (as well as any premises to which the
contamination has migrated) determined to be present at the
completion of the Second Study that were not identified upon
completion of the First Study that are attributable to
activity or operations of Lessee. Lessee shall be
responsible for removing all such contamination on the
Leased Premises and on any premises to which it has
migrated. Throughout the term of this Agreement, the Lessee
shall perform the duties and responsibilities of the
"generator" in compliance with all applicable laws and
regulations, including (without limitation) identifying,
packaging, manifesting, reporting, recordkeeping, handling,
transporting and disposing of all hazardous and
non-hazardous liquid or solid wastes generated by the
Lessee, its tenant(s), successors) , assignee(s) , guest(s)
or patron(s) , within the Leased Premises. Lessee shall
provide Department with copies of all documentation in
support of actions taken in compliance with this Section.
6.12.8 As generator" of any environmental contamination,
accidental or otherwise, the Lessee shall undertake
immediate containment efforts to minimize damage to the
environment. In addition, the Lessee will immediately notify
the Department of such spill or contamination and remove all
contamination from both the Leased Premises as well as any
property the contamination may migrate to. Lessee shall
provide a written report to the Department explaining the
cause, location, time and extent of such spill(s) or
contamination.
6.12.9 In addition to compliance with Article 14, Lessee
shall conduct its operations and operate, use and maintain
the Leased Premises in such manner that there will be at all
times a practicable minimum of air pollution, water
pollution, or any other type of pollution arising out of,
relating to, or resulting from the operation, use or
maintenance of the Leased Premises.
6.12.10 Lessee shall not perform any repair or alterations
to the Leased Premises that might disturb any existing
environmental condition prior to obtaining the written
approval of the Department, which approval shall not be
unreasonably withheld.
6.12.11 Lessee shall provide the Department with a copy of
any and all reports on Environmental Conditions on the
Leased Premises, including the results of any laboratory
analysis that may be performed.
6.12.12 The Lessee shall be responsible to obtain all
certificates, permits, licenses, approvals, or
authorizations required by any Environmental Law for the
construction, installation, or operation of all facilities
on the Leased Premises. A copy of all such certificates,
approvals or authorizations shall be provided to Department.
6.12.13 Lessee shall become a "co-permittee" upon the
Department's request for any environmental permit required
by Lessee's use of the Leased Premises.
6.12.14 Lessee acknowledges it is in possession of the
Stewart Industrial Park Final Environmental Impact Statement
and, in addition to any other obligations herein, agrees to
conduct its activities in a manner consistent therein.
b) Add a new Section 6.13 as follows:
Lessee shall, at Department's request, provide
Department or any of its duly authorized representatives, at
any reasonable time and at its own expense, access to and
the right to examine any books, documents, papers and
records of Lessee pertinent to this Agreement.
c) Add a new section 6.14 as follows:
Lessee shall obtain the Department's prior written
approval before modifying or installing any floor or shop
drain systems, which approval shall not be unreasonably
withheld.
IN WITNESS WHEREOF, the parties hereto have signed this
Lease Amendment #1, as of the day and year first written
above.
THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Attest: By
Authorized Official
NYSDOT Certification - L10046R
In addition to the acceptance of
this contract, I also certify that
original copies of this signature
will be attached to all other exact
copies of this contract.
Original signed by Rex Grathwol
NEW ENGLAND LAMINATES CO., INC.
Attest:/s/Stephen E. Gilhuley By
Authorized Official
Allen Levine
Vice President
Corporate Seal
NEW YORK STATE COMPTROLLER'S NEW YORK STATE
ATTORNEY GENERAL'S
APPROVAL APPROVAL
APPROVED AS TO FORM
NEW YORK STATE ATTORNEY
GENERAL
Date: April 21, 1995 April 1995
Peter Favretto
Associate Attorney
d) Add a new section 6.15 as follows:
For purposes of Section 6.12, "Lessee" shall mean New
England Laminates Co., Inc.
6. ARTICLE 11, ASSIGNMENT AND SUBLEASE
a) Delete Section 11.9.
7. ARTICLE 18, SURRENDER AND RIGHT OF RE-ENTRY
a) Add a new section 18.2 as follows:
18.2 In addition to the obligations of 18.1, Lessee shall
restore the floor to its original condition as it was as of
December 1, 1994 and prior to the placement of its machinery
and restore any other changes made on or after December 1,
1994 and prior to the expiration of the Agreement, at the
Department's option.
9. ARTICLE 22, NOTICES
Substitute a new address for Lessee in Section 22.2 in lieu
of the address for Lessee as follows:
New England Laminates Co., Inc.
3 Elm Street
Walden, New York 14402
Attention: General Manager
Park Electrochemical Corp.
5 Dakota Drive
Lake Success, New York 11042
Attention: General Counsel
10. ARTICLE 27, ENTIRE AGREEMENT
a) Delete Section 27.1 and substitute the following:
27.1 This Agreement consists of Articles 1 to 27
inclusive, and Article AA, Appendix A and Exhibits A, B,
B-1, B-2, C and D and Schedule A.
CERTIFICATE OF AUTHORITY
I, Alan R. Lesh, certify that I am the Secretary of New
England Laminates Co., Inc. ("NELCO"), a corporation duly
organized and in good standing under the New York Business
Corporation Law named in the foregoing agreement; that Allen
Levine who signed said agreement on behalf Of NELCO was, at
the time of execution, a Vice President of NELCO, that said
agreement was duly signed for and in behalf of said NELCO by
authority of its Board of Directors, thereunto duly
authorized, and that such authority is in full force and
effect at the date hereof.
(CORPORATE SEAL)
/s/ Alan R. Lesh
STATE OF New York )
)ss.:
Nassau COUNTY )
On this 16thday of February, 1995 before me personally
came Alan R. Lesh to me known, and known to me to be the
Secretary of New England Laminates, the corporation
described in and which executed the above certificate, who
being by me duly sworn did depose and say that he, the said
Alan R. Lesh resides at 2578 East 2nd Street, Brooklyn, New
York 11223 that he is the Secretary of said corporation and
knows the corporate seal of the said corporation; that the
seal affixed to the above certificate in such corporate seal
and that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his/her
name thereto by like order.
________________________
Notary Public Nassau
County
[exhibits-02-10.13b]bd