LEASE EXHIBIT 10.68
THIS LEASE is made and entered into this 27th day of
February, 1998, by and between UNITED KIRKWOOD, L.L.C., having an
address of P.O. Box 678, Vestal, New York 13851, ("Landlord"),
and UNITED STRUCTURES, INC., having an address of 5 Pine Camp
Drive, Kirkwood, New York ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord desires to lease to Tenant and Tenant
desires to lease from Landlord the Premises described below upon
the terms and conditions provided in this Lease.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein set forth, Landlord and Tenant
agree as follows:
1. GRANT OF LEASE AND DESCRIPTION OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, those certain premises located at 5 Pine
Camp Drive, Town of Kirkwood, Broome County, New York, more
particularly described in Exhibit "A" appended hereto, together
with all buildings and improvements located thereon comprising
approximately 55,900 square feet (the "Improvements") and all
easements, rights-of-way appurtenant to the Premises. The
premises covered by this Lease, including the Improvements and
easements, and rights-of-way appurtenant to the premises, shall
hereinafter be referred to as the "Premises".
2. TERM
(a) The term of this Lease (the "Term") shall
commence on February 27, 1998 (the "Commencement Date") and shall
terminate on December 31, 2002 (the "Expiration Date"), unless
sooner terminated or extended in accordance with the provisions
of this Lease.
(b) Tenant may, at its option, renew this Lease
for an additional term of five (5) years ("Option Term"). The
Option Term shall commence immediately upon the conclusion of the
original Term. This option to renew shall be exercised only by
written notice in accordance with Section 20 hereof given no
later than nine (9) months prior to the Expiration Date. Except
for the increase in rent hereinafter provided, the Option Term
shall be on the same terms and conditions as are to be in effect
during the original Term, except that Tenant shall have no
further option to renew this Lease beyond the expiration of the
Option Term. If Tenant fails to exercise this renewal option
during the period in which it is available and in the manner
required hereby, the Lease is no longer in full force and effect
for any reason, or Tenant is in default in the payment of Fixed
Annual Rent or Additional Rent or any other charges or sums due
under this Lease beyond any applicable cure period or in any
other material respect under this Lease at the time of such
exercise, this renewal option shall terminate, become void and be
of no further force and effect. Unless otherwise hereinafter
expressly provided, any reference to "Term" shall mean the
original term hereof and any Option Term.
(c) Tenant shall have the right to cancel this
Lease upon six (6) months prior written notice to the Landlord,
which notice may be given at any time after July 1, 1999. Such
cancellation right may not be exercised from January 1, 2002
through the end of the original term. As a condition of the
exercise of this right of cancellation, Tenant shall pay the
Landlord one year's rent if the cancellation occurs between
January 1, 2000 and June 30, 2000, or one-half year's rent if the
cancellation occurs between July 1, 2000 and December 31, 2001.
In addition to the payment of one year's or one-half year's rent,
as the case may be, Tenant shall pay the Landlord real estate
taxes attributable to any portion of the one-year or one-half
year period, as the case may be, that the Premises remain vacant.
Tenant shall also have the right to cancel this Lease during the
Option Term upon six (6) months prior written notice which may be
given after July 1, 2004 but not after July 1, 2006. Such
cancellation right may not be exercised from January 1, 2007
through the end of the Option Term. As a condition of the
exercise of the right of cancellation during the Option Term,
Tenant shall pay the Landlord one year's rent if the cancellation
occurs between January 1, 2005 and June 30, 2005, or one-half
year's rent if the cancellation occurs between July 1, 2005 and
December 31, 2006. In addition to the payment of one year's or
one-half year's rent, as the case may be, in the event of
cancellation during the Option Term, Tenant shall pay the
Landlord real estate taxes attributable to any portion of the
one-year or one-half year period, as the case may be, that the
Premises remain vacant.
3. RENT
(a) For the use of the Premises during the Term,
Tenant agrees and promises to pay to Landlord fixed annual rent
(the "Fixed Annual Rent" or "Rent") in the amount of $220,805.00
during the Term and in the amount of $240,370.00 during the
Option Term. Tenant shall pay the Fixed Annual Rent to Landlord
in equal monthly installments equal to one-twelfth (1/12) of the
applicable Fixed Annual Rent in advance on the first day of each
month, at the office of Landlord or at such other place as may be
designated in writing by Landlord, and except as otherwise
specifically provided herein, without notice, demand, deduction
or offset. Tenant's obligation to pay Fixed Annual Rent shall
commence on the Commencement Date.
(b) Any and all amounts other than Fixed Annual
Rent payable by Tenant according to this Lease will be payable as
"Additional Rent". If Tenant fails to pay any such amounts when
due and such failure is not cured within ten (10) days after
written notice thereof from Landlord to Tenant, Landlord will
have all the rights and remedies available to it on account of
Tenant's failure to pay Fixed Annual Rent. Fixed Annual Rent and
Additional Rent are sometimes collectively referred to herein as
"Rent".
4. PURPOSE AND USE OF PREMISES
Tenant shall use and occupy the Premises for the
operation of its business as of the date hereof ("Permitted Use")
and for no other purpose. Tenant covenants and agrees that
Tenant will not use or permit any person to use the Premises or
any part thereof for any use or purpose in violation of the laws
of the United States of America, the State of New York, or any
ordinances or other regulations of any municipality in which the
Premises are situated.
5. TAXES
As Additional Rent, Tenant shall pay all real property
and school taxes and assessments or governmental impositions in
lieu thereof, water, and sewer rents, rates and charges which
apply to the Premises (collectively the "Taxes"), provided that
Tenant shall only be required to pay its proportionate share of
such taxes, assessments and charges applicable to the Term from
and after the Commencement Date. Any claim for real property
taxes made by the Landlord upon Tenant as provided for herein
shall be in writing, for the property of which the Premises are a
part, for the tax year for which a claim is made. Such
Additional Rent shall be paid within ten (10) days of Landlord's
billing Tenant, which billing shall include a copy of the tax
bill. Thirty (30) days prior to the termination of this Lease,
Tenant shall pay to Landlord its proportionate share of the Taxes
which have yet to be billed to Landlord but which apply to the
Term of this Lease. Such tax payment shall be based upon the
prior years Taxes and shall be adjusted when the actual bill is
issued. Upon payment from Tenant, if applicable, Landlord shall
pay all Taxes prior to the due date and provide evidence of
payment upon request by Tenant. At Tenant's request, Taxes shall
be paid under protest. In the event Landlord fails to timely pay
Taxes, Tenant shall have the right to pay such amounts and to
offset the amounts so paid against the Fixed Annual Rent. Tenant
shall also have the right to protest any change in assessed value
and to pay Taxes under protest. Upon the commencement of this
Lease, Tenant shall pay its pro-rata share of taxes which have
been prepaid by Landlord and attributable to the term of the
Lease.
6. COMPLIANCE WITH LAWS
Tenant agrees to comply in all material respects with
all laws, ordinances, rules and regulations of the federal,
state, county and municipal authorities applicable to the
Premises and to the business to be conducted in the Premises;
provided, however, that Tenant shall not be required to make any
capital expenditures which are required for reasons which are not
unique to Tenant's use of the Premises.
7. UTILITIES
Tenant shall promptly pay for all utilities consumed by
it in the Premises, including, without limitation, gas, water,
sewer charges, electricity, and telephone. Landlord shall pay
all utilities consumed by Landlord in the Premises prior to the
commencement of the Term.
8. REPAIRS AND MAINTENANCE
(a) The Landlord shall be responsible to maintain
and keep in good order and repair the structural portions of the
Premises consisting of the roof, foundation and structural
portions of the walls and ceiling and the repair and replacement
of all operating systems in the Premises including mechanical,
electrical, plumbing, HVAC system.
(b) Tenant shall be responsible to maintain and
keep in good order and repair (including replacements, if
required) all other portions of the Premises at its own cost and
expense, including, but not limited to, interior and exterior of
the building, the parking lot, driveways, lighting, snow removal
and cleaning.
(c) Landlord shall have the right, with
reasonable prior notice to Tenant, to enter the Premises at all
reasonable hours without disrupting or interfering with Tenant's
business operations in the Premises for the purpose of inspecting
or of making repairs to the same, and Landlord shall also have
the right with reasonable prior notice to Tenant to make access
available to prospective or existing mortgagees or purchasers of
any part of the Premises without disrupting or interfering with
Tenant's business operations in the Premises. If repairs are
required to be made by Tenant pursuant to the terms hereof,
Landlord may by thirty (30) days written notice demand that
Tenant make the same forthwith, and if Tenant refuses or neglects
to commence such repairs and complete the same with reasonable
dispatch, after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made (at such
times and in such manner as to minimize any interference with
Tenant's business operations in the Premises), and the Landlord
shall not be responsible for any loss or damage to Tenant's
business by reason thereof. If Landlord makes or causes such
repairs to be made, Tenant agrees that it will forthwith, on
demand, pay to Landlord the reasonable cost thereof, and if it
shall default in such payment, Landlord shall have the remedies
provided for the non-payment of Fixed Annual Rent or other
charges payable hereunder.
9. ALTERATIONS AND IMPROVEMENTS
Tenant shall make no structural changes in or to the
Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.
Without Landlord's consent, Tenant may make alterations,
installations, additions or improvements which are non-structural
and which do not affect the mechanical systems serving the
Premises, or the utility services or electrical lines in or to
the interior of the Premises. Any and all costs and payments
incurred in connection with such work shall be the sole
responsibility of Tenant. All alterations, additions or
improvements (other than Tenant's Equipment and fixtures) shall
become property of Landlord and shall remain upon and be
surrendered with the Premises upon the termination of this Lease.
10. SIGNS
Subject to any applicable local, state or federal law,
Tenant may install at its sole cost and expense such signs in, on
or about the Premises as it deems desirable for the conduct of
its business.
11. INSURANCE
(a) Landlord shall cause to be maintained in full
force and effect throughout the Term "all risk" fire and extended
coverage insurance (replacement cost) written by a reputable
insurer licensed to do business in the State of New York to
adequately repair and restore the Premises, rental interruption
and general liability insurance with $5,000,000.00 combined
single limits for bodily injury and property damage. Landlord
shall have no obligation to insure any alterations or
improvements made to the Premises by Tenant or any of Tenant's
trade fixtures, equipment or other personal property located
within the Premises. Tenant agrees to pay Landlord as Additional
Rent the cost of such insurance within twenty (20) days after
demand from Landlord accompanied by a copy of the invoice for
such insurance. At the commencement of this Lease Tenant shall
pay to Landlord its proportionate share of any pre-paid insurance
attributable to a portion of the term of this Lease.
(b) Tenant shall cause to be maintained in full
force and effect throughout the Term general liability insurance
with $2,000,000.00 combined single limits for bodily injury and
property damage (such coverage may be maintained through both
primary and umbrella coverage) naming Landlord as an additional
named insured, written by a reputable insurer licensed to do
business in the State of New York. Tenant shall furnish Landlord
with a certificate of insurance evidencing such coverage.
(c) Tenant agrees not to do or permit anything to
be done in, on or about the Premises, or to keep anything
therein, which will increase the rate of fire insurance premiums
on the Improvements, or any part thereof, or on property kept
therein, or which will conflict with the regulations of any
pertinent authority or public or quasi-public department or with
any insurance policy upon the Improvements or any part thereof.
(d) Landlord and Tenant each waive any and all
rights to recover against the other or against anyone claiming
through them by way of subrogation or otherwise for the loss or
damage to property of such waiving party arising from any cause
which would be covered by any insurance required to be carried by
such party pursuant to this Section 11. Landlord and Tenant,
from time to time, will cause their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all
policies of insurance carried in connection with the Premises or
the contents of the Premises.
12. INDEMNIFICATION
Tenant agrees to defend, indemnify and save Landlord
harmless from legal action, damages, loss, liability and expense
(including reasonable attorneys' fees) in connection with loss of
life, bodily or personal injury or property damage arising from
or out of the use or occupancy by Tenant of the Premises or if by
any negligent act or omission of Tenant, Tenant's agents,
contractors, employees, invitees, or persons claiming through
Tenant or as a result of the breach of this Lease.
13. DAMAGE OR DESTRUCTION
(a) If the Premises or the Building are damaged
by fire or other insured casualty, Landlord will give Tenant
notice of the time which will be needed to repair such damage, as
determined by Landlord in its reasonable discretion, and the
election (if any) which Landlord has made according to this
Section 13. Such notice will be given before the forty-fifth
(45th) day (the "Notice Date") after the fire or other insured
casualty.
(b) If the Premises or the Building are damaged
by fire or other insured casualty to an extent which may be
repaired within one hundred eighty (180) days after the
commencement of repair, as determined by Landlord, and provided
there shall be at least one year remaining on the Lease and
Tenant agrees not to give notice of termination before the
completion of such repair, and until the end of the then current
term of the Lease, if permitted to do so, Landlord will repair
the damage within one hundred eighty (180) days after the Notice
Date. In that event this Lease will continue in full force and
effect except that Rent will be abated on a pro rata basis from
the date of the fire or other insured casualty until the date of
the completion of such repairs (the ''Repair Period'') based on
the proportion of the Premises of whose use Tenant is deprived
during the Repair Period.
(c) If the Premises or the Building are damaged
by fire or other insured casualty to an extent which may not be
repaired within one hundred eighty (180) days after the
commencement of repair, as reasonably determined by Landlord,
then either (i) Landlord or Tenant may cancel this Lease as of
the date of such damage by written notice given to the other
party on or before the Notice Date, or (ii) Landlord may elect to
repair such damage. If Landlord elects to repair such damage,
Rent will be abated on a prorated basis during the Repair Period
based on the proportion of the Premises of whose use Tenant is
deprived during the Repair Period. If Tenant disagrees with
Landlord's determination that the Building cannot be repaired
within one hundred eighty (180) days, Landlord and Tenant shall
mutually select a general contractor to make such determination
which shall be binding on the parties.
(d) If any damage by fire or other casualty is
the result of the willful conduct or gross negligence of Tenant,
its agents, contractors, employees or invites, Tenant will have
no right to terminate this Lease on account of such damage to the
Premises or Building.
14. CONDEMNATION
(a) If the whole or any material part of the
Premises shall be acquired or condemned by right of eminent
domain for any public use or purpose or be acquired by deed in
lieu thereof, then either party may terminate this Lease by
giving thirty (30) days' written notice to the other of its
election to terminate this Lease. If the term of this Lease
shall continue in full force and effect, Landlord shall, to the
extent of its award, immediately after possession is physically
taken, repair or rebuild what may remain of the Premises for the
occupancy of Tenant (subject to delays due to shortage of labor,
materials, or equipment, labor difficulties, breakdown of
equipment, or governmental restrictions which cannot be
reasonably avoided), and a just proportion of all Rent shall be
abated according to the nature and extent of the injury to the
Premises until what may remain of the Premises shall be repaired
and rebuilt as aforesaid, and thereafter a just proportion of all
Fixed Annual Rent shall be abated according to the nature and
extent of the part of the Premises acquired or condemned for the
balance of the Term of this Lease.
(b) Landlord reserves to itself and Tenant
assigns to Landlord, all rights to any award accruing on account
of any such taking or condemnation, or by reason of any act of
any public or quasi-public authority for which an award is
payable, except as hereinafter provided. Tenant agrees to
execute such instruments or assignments as may be reasonably
required by Landlord, to join with Landlord in any claim for the
recovery of any award, if requested by Landlord, and to turn over
to Landlord any such award that may be recovered in any such
proceeding. It is understood and agreed, however, that Landlord
does not reserve to itself and Tenant does not assign to Landlord
any award payable for moving expenses, leasehold improvements,
and trade fixtures installed by Tenant at its own cost and
expense.
15. END OF TERM: TRADE FIXTURES
At the end of the Term, Tenant will promptly quit and
surrender the Premises broom-clean, in good order and repair,
ordinary wear and tear and casualty excepted. All of Tenant's
trade fixtures and personal property, apparatus, machinery and
equipment now or hereafter located upon the Premises and owned by
Tenant, whether or not the same is affixed thereto, shall be and
remain the personal property of Tenant and the same are herein
sometimes referred to as "Tenant's Equipment". Tenant's
Equipment may be removed from time to time by Tenant; provided,
however, that if such removal shall injure or damage the Premises
or the Building, Tenant shall repair the damage and place the
Premises or the Building in the same condition as it would have
been if such equipment had not been installed, ordinary wear and
tear excepted. Title to any trade fixtures or personal property
left in the Premises by Tenant upon the termination of this Lease
shall pass to Landlord.
16. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not assign, transfer or mortgage
this Lease or any interest herein or sublet the Premises or any
part thereof or permit the Premises or any part thereof to be
used by others without the prior written consent of Landlord in
each instance, which Landlord agrees shall not be unreasonably
conditioned, withheld or delayed. In the event such consent to
assign, transfer, mortgage or sublet this Lease be given, the
same shall be deemed to relate solely to the particular
assignment, transfer, mortgage, sublease or permission referred
to in such consent. Notwithstanding the above, Tenant shall have
the right to assign or sublet the Premises to its parent or any
of its affiliates, by merger or acquisition, without Landlord's
consent provided the Guaranty executed simultaneously herewith
remains in full force and effect. A conveyance of all or a
controlling portion of the stock of the Tenant or a conveyance of
all or substantially all of its assets shall be deemed an
assignment of this Lease.
(b) Notwithstanding any consent to an assignment
or sublease or any permitted assignment or sublease, Tenant shall
remain liable for all obligations under this Lease for the entire
term, including any extensions.
(c) Any assignment or sublease in violation of
this Section 16 will be void. If this Lease is assigned, or if
the Premises or any part of the Premises are subleased or
occupied by anyone other than Tenant, Landlord may, after default
by Tenant, collect rent from the assignee, subtenant or occupant,
and apply the net amount collected to Tenant's Rent obligations
under this Lease.
17. ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may,
in accordance with the terms of this Lease, enter the Premises at
any time in response to an emergency and at reasonable hours in
other instances upon reasonable prior notice to Tenant to inspect
the same, exhibit the same to prospective purchasers, lenders or,
during the last three months of the Term, or to determine whether
Tenant is complying with all its obligations under this Lease, or
to supply any service to be provided by Landlord to Tenant
according to this Lease, or make repairs required of Landlord
under the terms of this Lease. Landlord agrees not to materially
interfere with Tenant's business unless in the case of emergency.
Landlord will have the right to use any and all means which
Landlord may deem proper to open doors in and to the Premises in
an emergency in order to obtain entry to the Premises. Any entry
to the Premises obtained by Landlord by any means permitted under
this Section 17 will not, under any circumstances, be construed
or deemed to be a forcible or unlawful entry into or a detainer
of the Premises or an eviction, actual or constructive, of Tenant
from the Premises, or any portion of the Premises, nor will any
such entry entitle Tenant to damages or an abatement of Rent or
other charges which this Lease requires Tenant to pay.
18. SUBORDINATION; ESTOPPEL CERTIFICATES
(a) This Lease shall be subject and subordinate
to the lien of any mortgage currently placed upon the fee title
to the Premises, and to any mortgage which may in the future be
placed upon the fee title to the Premises. Landlord shall cause
any such current or future mortgagee or holder of a deed of trust
to provide to Tenant a non-disturbance agreement reasonably
acceptable to Tenant and its counsel providing that the rights of
Tenant under this Lease shall not be cut off, diminished or
otherwise affected by foreclosure of any such mortgage or deed of
trust, so long as Tenant shall not be in default hereunder.
Tenant, upon request of any party in interest, shall execute
promptly all reasonable instruments necessary to carry out the
intent of this Section 18 as shall be reasonably requested by
Landlord provided such instrument(s) includes a non-disturbance
provision. The word "remortgage" as used in this Lease includes
mortgages, leasehold mortgages, deeds of trust or other similar
instruments and modifications, consolidations, extensions,
renewals and replacements thereof and substitutes therefor.
(b) At any time and from time to time but within
fifteen (15) days after written request, either Landlord or
Tenant will execute, acknowledge and deliver to the requesting
party a certificate certifying (1) that this Lease is unmodified
and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect, as
modified, and stating the date and nature of each modification),
(2) the date, if any, to which Fixed Annual Rent and other sums
payable under this Lease have been paid, (3) that no notice has
been received by Landlord or Tenant of any default which has not
been cured, except as to defaults specified in the certificate,
and (4) such other matters as may reasonably be requested by the
requesting party.
19. EVENTS OF DEFAULT; LANDLORD'S REMEDIES
(a) The following events are referred to
collectively as "Events of Default", or individually as an "Event
of Default":
(i) Tenant defaults in the payment of Fixed
Annual Rent herein reserved, or any part thereof, for a period of
ten (10) days after the service of written notice thereof;
(ii) Tenant defaults in the performance of
any other covenant or condition of this Lease on the part of
Tenant to be performed and fails to commence to cure the default
within thirty (30) days after the service of written notice
thereof by Landlord and thereafter prosecute such cure with
continuity and due diligence, or if such default cannot be cured
within thirty (30) days, then such additional time as is
necessary to cure the default so long as Tenant is diligently
proceeding to cure the default; or
(iii) Tenant files a voluntary petition in
bankruptcy or is adjudicated as bankrupt or insolvent or seeks
any similar relief under any federal bankruptcy or insolvency
statute, or if Tenant is involuntarily placed in bankruptcy and
such petition is not dismissed within sixty (60) days of filing.
(b) If any one or more Events of Default occur,
then Landlord has the right, at its election:
(i) To give Tenant written notice of
Landlord's intention to terminate this Lease on the earliest date
permitted by law or on any later date specified in such notice,
in which case Tenant's right to possession of the Premises will
cease and this Lease will be terminated, except as to Tenant's
liability, as if the expiration of the term fixed in such notice
were the end of the Term; or
(ii) Upon notice to Tenant and through
summary proceedings or other legal process, to reenter and take
possession of the Premises or any part of the Premises, repossess
the same, expel Tenant and those claiming through or under
Tenant, and remove the effects of both or either, using such
force for such purposes as may be necessary, without being liable
for prosecution, without being deemed guilty of any manner of
trespass, and without prejudice to any remedies for arrears of
Rent or other amounts payable under this Lease or as a result of
any preceding breach of covenants or conditions; or
(iii) Without further demand or notice, to
cure any Event of Default and to charge Tenant for the cost of
effecting such cure, provided that Landlord will have no
obligation to cure any such Event of Default of Tenant.
(c) Should Landlord elect to reenter as provided
in subsection (b)(ii), or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided
by law, from time to time, without terminating this Lease,
Landlord shall use reasonable efforts to the extent required by
New York with respect to mitigation of damages to relet the
Premises or any part of the Premises in Landlord's or Tenant's
name, but for the account of Tenant, for such term or terms
(which may be greater or less than the period which would
otherwise have constituted the balance of the Term) and on such
conditions and upon such other terms (which may include
concessions, free rent and alteration and repair of Premises) as
Landlord, in its reasonable judgment may determine, and Landlord
may collect and receive the rent. Landlord will in no way be
responsible or liable for any failure to relet the Premises or
any part of the Premises, or for any failure to collect any rent
due upon such reletting. No such reentry or taking possession of
the Premises by Landlord will be construed as an election on
Landlord's part to terminate this Lease unless a written notice
of such intention is given to Tenant. No notice from Landlord
under this Section 19 or under a forcible or unlawful entry and
detainer statute or similar law will constitute an election by
Landlord to terminate this Lease unless such notice specifically
so states. Landlord reserves the right following any such
reentry or reletting to exercise its right to terminate this
Lease by giving Tenant such written notice, in which event this
Lease will terminate as specified in such notice.
(d) In the event that Landlord elects to
terminate this Lease as permitted in subsection (b)(i) of this
Section 19 or elects to take possession as provided in subsection
(b)(ii), Tenant will pay to Landlord: (1) all Rent which would
become due and payable for the balance of the term of the Lease,
as if such repossession had not occurred, less (2) the net
proceeds, if any, of any reletting of the Premises after
deducting all Landlord's reasonable expenses in connection with
such reletting, including, without limitation, all repossession
costs, brokerage commissions, attorneys' fees, expenses of
employees, alteration and repair costs and expenses of
preparation for such reletting. In no event shall the amount
credited to Tenant against the Rent exceed the Rent due to
Landlord under this Lease.
(e) If this Lease is terminated on account of the
occurrence of an Event of Default, Tenant will remain liable to
Landlord for damages in an amount equal to Rent and other amounts
which would have been owing by Tenant for the balance of the
Term, had this Lease not been terminated, less the net proceeds
(but not in excess of Rent due to Landlord), if any, of any
reletting of the Premises by Landlord subsequent to such
termination, after deducting all of Landlord's reasonable
expenses in connection with such reletting. Landlord will be
entitled to collect such damages from Tenant monthly on the day
on which Fixed Annual Rent and other amounts would have been
payable under this Lease if this Lease had not been terminated,
and Landlord will be entitled to receive such Fixed Annual Rent
and other amounts from Tenant on each such day.
(f) Any suit or suits for the recovery of the
amounts and damages set forth in this Section may be brought by
Landlord, from time to time, at Landlord's election, and nothing
in this Lease will be deemed to require Landlord to await the
date upon which this Lease or the Term would have expired had
there occurred no Event of Default. Each right and remedy
provided for in this Lease is cumulative and is in addition to
every other right or remedy provided for in this Lease or now or
after the Commencement Date existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the
exercise by Landlord of any one or more of the rights or remedies
provided for in this Lease or now or after the Commencement Date
existing at law or in equity or by statute or otherwise will not
preclude the simultaneous or later exercise by Landlord of any or
all other rights or remedies provided for in this Lease or now or
after the Commencement Date existing at law or in equity or by
statute or otherwise. All reasonable costs incurred by Landlord
in collecting any amounts and damages owing by Tenant pursuant to
the provisions of this Lease or to enforce any provision of this
Lease, including reasonable attorneys' fees from the date any
such matter is turned over to an attorney, whether or not one or
more actions are commenced by Landlord, will also be recoverable
by Landlord from Tenant, if Landlord is successful in such
litigation.
20. NOTICES
Unless otherwise specified, any notice, bill, statement
or communication which Landlord or Tenant may desire or be
required to give to the other shall be deemed sufficiently given
or rendered if in writing and personally delivered or sent by
certified mail, return receipt requested, or overnight carrier
addressed as follows:
Landlord: United Kirkwood, L.L.C.
P.O. Box 678
Vestal, New York 13851-0678
with a copy to
Howard M. Rittberg, Esq.
Levene, Gouldin & Thompson, LLP
450 Plaza Drive
Vestal, New York 13850
Tenant: United Structures, Inc.
5 Pine Camp Drive
Kirkwood, New York 13795
with a copy to
Jeffrey C. Rubenstein, Esq.
Much, Shelist, Freed, Denenberg,
Ament, Bell & Rubenstein, P.C.
200 North LaSalle Street, Suite 2100
Chicago, Illinois 60601
or at such other address as either party shall designate by
written notice. Unless otherwise specified, the time of
rendering of such notice, bill or statement and/or the giving of
such notice or communication shall be deemed to be upon receipt
of such notice, bill or statement.
21. QUIET ENJOYMENT
So long as Tenant pays the Rent reserved by this Lease
and performs and observes all of the covenants and provisions
thereof, Tenant shall quietly and peacefully hold and enjoy the
Premises.
22. MECHANIC'S LIENS
Tenant shall defend, indemnify and save harmless
Landlord against all loss, liability, costs (including reasonable
attorneys' fees), damages or interest charges as a result of any
mechanic's lien or any other lien caused to be filed on account
of the Tenant's or its agent's acts or omissions, and Tenant
shall, within twenty (20) days of the filing of any such lien and
notice, remove, pay or cancel said lien or secure the payment of
any such lien or liens by bond or other acceptable security or
procedure including an endorsement to Landlord's title insurance
policy to insure over said lien or to deposit 100% of the amount
of the lien claim. If Tenant fails to pay any charge for which a
mechanics' lien has been filed and has not given Landlord
security as described above, Landlord may, at its option, pay
such charge and related costs and interest, and the amount so
paid, together with reasonable attorneys' fees incurred by
Landlord in connection with such lien, will be Additional Rent
immediately due from Tenant to Landlord. Landlord will have the
right to post notices of non-responsibility or similar notices on
the Premises in order to protect the Premises against any such
liens.
23. HOLDING OVER
In the event that Tenant shall remain in the Premises
after the expiration of the Term without having executed a new
lease in writing with Landlord, such holdover shall not in any
way constitute a renewal or extension of this Lease. Such
holdover shall be construed as a month-to-month tenancy subject
to all terms and conditions of this Lease, except that Fixed
Annual Rent shall be equal to the amount which would have been in
effect had Tenant exercised its option to extend the term of this
Lease. If no such extension was available, then Fixed Annual
Rent during such holdover period shall be the amount of Fixed
Annual Rent in effect at the expiration of the Term plus twenty
percent (20%).
24. TENANT'S OPTION TO PURCHASE THE PREMISES
Tenant is hereby given the option to purchase the
Premises at any time after two (2) years from the date hereof,
upon giving not less than thirty (30) days notice in writing to
the Landlord. The purchase price shall be $1,600,000.00 plus an
amount equal to the increase in the cost of living from the date
hereof to the date of exercise of the option multiplied by said
purchase price. Landlord and Tenant will, within the 30-day
notice period, execute and deliver a formal contract of sale
which shall provide that the sale shall be all cash above the
existing mortgage balances and that 10% of the purchase price
shall be paid upon the execution and delivery of the contract.
Adjustment and proration of taxes, water rates, and insurance
premiums are to be made as of the closing date. At closing
Landlord will deliver a warranty deed in recordable form or
similar form of deed conveying to the Tenant the Premises
together with all customary documents incidental thereto.
25. ENVIRONMENTAL
(a) Tenant shall, at all times and at its sole
cost and expense, comply in all material respects with all
Environmental Laws, including but not limited to, those
regulating any discharge by Tenant, its agents, employees,
contractors or invitees into the air, surface, water, sewers,
soil or groundwater of any Hazardous Material whether within or
outside the Premises. Landlord and its agents shall have the
right, but not the duty, upon reasonable notice (no more than
three (3) days) or without notice if in an emergency to inspect
the Premises at any time to determine whether Tenant is complying
with the terms of this Section. If Tenant is not in compliance
with this Section, Landlord shall have the right to immediately
enter upon the Premises and take whatever actions are reasonably
necessary to comply, including, but not limited to, the removal
from the Premises of any Hazardous Material and the restoration
of the Premises to a clean, neat, attractive, healthy and
sanitary condition in compliance with Environmental Laws. Tenant
shall pay all such costs incurred by Landlord ten (10) days after
receipt of a bill therefor.
(b) The Tenant shall be responsible for all
damages and clean-up costs caused by Tenant resulting from the
leaking, discharging or spilling of any gas, oil or petroleum
products or other contaminants or Hazardous Material on or into
the Premises and/or on and/or into any adjoining premises and/or
into the surrounding environment.
(c) The Tenant shall defend, indemnify and hold
harmless the Landlord of, from and against any and all suits,
claims and causes of action and any loss, costs, expenses, fines
or penalties (including reasonable attorney's fees), and clean-up
costs which the Landlord may incur or become liable to pay
arising out of the breach by the Tenant of any of its obligations
contained in Sections "25(a)" and "25(b)" above.
(d) The Tenant, at the request of the Landlord,
shall submit to the Landlord, or shall make available for
inspection and copying upon reasonable notice and at reasonable
times, any and all of the documents prepared by the Tenant
pursuant to any Environmental Laws or submitted to any
governmental regulatory agency.
(e) Tenant shall, within ten (10) days of its
receipt, provide Landlord with (I) copies of any notice of
alleged violations or other claims relating to Environmental
Laws, and (ii) all reports or analyses conducted by Tenant or its
contractors to determine the existence of or assess Hazardous
Materials at the Property.
(f) Tenant, on its own behalf and on behalf of
its successors and assigns, hereby releases and forever
discharges Landlord, its officers, directors, shareholders,
employees from any and all claims, actions or liabilities of any
manner whatsoever, whether in law or equity, whether now or
hereafter claimed or known, which Tenant now has or may have
against Landlord arising from or relating in any way to releases
or threatened releases of Hazardous Materials which may occur as
a result of Tenant's activities on the Property, or which arise
from Tenant's failure or alleged failure to comply with
Environmental Laws.
26. MISCELLANEOUS PROVISIONS
(a) This Lease shall be construed under the laws
of the State of New York, without regard to principles of
conflict of laws.
(b) The waiver by Landlord of any agreement,
condition or provision contained in this Lease will not be deemed
to be a waiver of any subsequent breach of the same or any other
agreement, condition or provision contained in this Lease, nor
will any custom or practice which may grow up between the parties
in the administration of the terms of this Lease be construed to
waive or to lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this
Lease. The subsequent acceptance of Rent by Landlord will not be
deemed to be a waiver of any preceding breach by Tenant of any
agreement, condition or provision of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent.
(c) This Lease contains all of the agreements
between the parties hereto. Any additions to or alterations or
changes or modifications hereof, to be binding upon the parties,
must be in writing signed by both of the parties hereto, and it
is agreed that this provision cannot be waived, except in writing
duly signed by the parties hereto.
(d) The terms, covenants and conditions contained
in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective successors and assigns.
(e) This Lease shall not be filed for public
record by any party hereto. Either party may, however, prepare a
memorandum setting forth the parties, description of the
Premises, terms of this Lease, and any other provisions hereof,
which memorandum shall be executed by both parties and may be
filed of public record.
(f) This Lease is submitted to Tenant on the
understanding that it will not be considered an offer and will
not bind Landlord in any way until (I) Tenant has duly executed
and delivered duplicate originals to Landlord, and (ii) Landlord
has executed and delivered one of such originals to Tenant.
(g) The titles of the sections throughout this
Lease are for convenience and reference only, and shall not
explain, modify, amplify, or aid in the interpretation,
construction, or meaning of the provisions of this Lease.
(h) If any provision of this Lease proves to be
illegal, invalid or unenforceable, the remainder of this Lease
will not be affected by such finding, and in lieu of each
provision of this Lease that is illegal, invalid or
unenforceable, a provision will be added as a part of this Lease
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid, and
enforceable.
(I) Any payment to be made pursuant to the
provisions of this Lease which is not paid within fifteen (15)
days after the date when due shall be subject to a 4% late fee
and shall also bear interest from the due date thereof until paid
at an annual rate of interest equal to the so-called prime rate
in effect from time to time during the applicable period at The
Chase Manhattan Bank, plus 3%.
(j) If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and
provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
(k) It is understood and agreed that Tenant shall
look solely to the estate and property of Landlord in the
Premises for the satisfaction of Tenant's remedies for the
collection of a 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 by Landlord and any
other obligation of Landlord created by or under this Lease, and
no other property or assets of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of
Tenant's remedies. The preceding sentence will not limit any
right Tenant might otherwise have to pursue any suit or action in
connection with the enforcement or collection of amounts that may
become owing or payable under or on account of insurance
maintained by Landlord.
(l) FORCE MAJEURE. Neither Landlord nor Tenant
shall be held to be in default in the performance of their
obligations hereunder for such period of time as it is prevented
from performing the same by reason of acts of God, strikes, and
other causes beyond its reasonable control; provided, however,
that financial inability shall never be deemed to be a cause
beyond a party's reasonable control.
(m) NOTICE TO MORTGAGEE. If the Tenant is
notified by the Landlord or the Landlord's mortgagee that there
is a mortgage on the Premises, and is given the name and address
of the Landlord's mortgagee, the Tenant will give written notice
to the Landlord's mortgagee of any default at the time that the
Tenant gives notice of such default to the Landlord, and the
Landlord's mortgagee shall have the same concurrent time period
as provided to the Landlord under this Lease to cure such default
of the Landlord. Except in the case of an emergency, the Tenant
shall not have the right to terminate this Lease nor the right to
cure such default and deduct the cost of the same from Fixed
Annual Rent, if the Landlord's mortgagee commences or causes to
be commenced promptly after such notice the curing of such
default, and if the default is cured within such time period
after such notice.
(n) ASSIGNMENT OF THE LEASE TO MORTGAGEE. With
reference to any assignment by the Landlord of its interest in
this Lease, or the rents payable hereunder, conditional in nature
or otherwise, which assignment is made to or held by a bank,
trust company or insurance company holding a mortgage on the
Premises, the Tenant agrees:
(I) That the execution thereof by the
Landlord and the acceptance thereof by such mortgagee, shall
never be treated as an assumption by such mortgagee of any of the
obligations of the Landlord thereunder, unless such mortgagee
shall, by written notice sent to the Tenant, specifically
otherwise elect; and
(ii) That, except as aforesaid, such
mortgagee shall be treated as having assumed the Landlord's
obligations thereunder only upon foreclosure of such mortgagee's
mortgage or conveyance in lieu thereof and the taking of
possession of the Premises.
(o) Tenant waives its right to redeem under the
laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this
Lease as of the day and year first written above.
LANDLORD: UNITED KIRKWOOD, L.L.C.
By: \David Newman
Its: Member
TENANT: UNITED STRUCTURES, INC.
By: \Thomas J. Martini
Its: Treas
STATE OF NEW YORK )
) ss:
COUNTY OF BROOME )
On the 27th day of February in the year 1998, before
me, the undersigned, a notary public in and for said state,
personally appeared Marc Newman of UNITED KIRKWOOD, L.L.C.,
personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which
the individual(s) acted, executed the instrument.
\Howard M. Rittberg
Notary Public
STATE OF Indiana)
) ss:
COUNTY OF Elkhart)
On the 27th day of February in the year 1998, before
me, the undersigned, a notary public in and for said state,
personally appeared Marc Newman of UNITED STRUCTURES, INC.,
personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which
the individual(s) acted, executed the instrument.
\Rita A. Merrill
Notary Public
EXHIBIT "A"
ALL THAT TRACT OR PARCEL OF LAND situate in the Town of
Kirkwood, County of Broome, State of New York bounded and described
as follows:
Beginning at a point on the southwesterly boundary of the
Erie-Lackawanna Railway Company (reputed owner) at its intersection
with the southeasterly boundary of the Colesville Road Extension
(C.R. 538);
Thence along said railway boundary the following three (3)
course and distances: S 65 19' 07" E, 141.30 feet to a point;
Thence S 05 26' 07" E, 3.47 feet to a point;
Thence S 65 19' 07" E, 280.79 feet to a point;
Thence S 23 33' 29" W, through the property of Book Park
Realty Corporation (reputed owner) a distance of 1,176.62 feet to
a point on the division line between the property of Book Park
Realty Corporation (reputed owner) on the northeast and the
property of the Town of Kirkwood (reputed owner) on the southwest;
Thence along the last mentioned division line the following
three (3) courses and distances: N 64 08' 39" W, 337.08 feet to
a point;
Thence N 23 28' 01" E, 513.00 feet to a point;
Thence N 66 31' 59" W, 115.00 feet to a point on the
southeasterly boundary of said Colesville Road Extension (C.R.
538);
Thence along the last mentioned boundary the following two (2)
courses and distances: N 23 28' 01" E, 275.00 feet to a point;
Thence N 27 54' 13" E, 387.70 feet to the point of beginning.