Exhibit Number 10(m)
First Amendment to Lease and Agreement
dated as of May 30, 1986,
between
Corporate Property Associates
and
Corporate Property Associates 2
and
Pre Finish Metals Incorporated
FIRST AMENDMENT TO LEASE
AND AGREEMENT
------------------------------------
THIS FIRST AMENDMENT TO LEASE AND AGREEMENT, dated as of May 30, 1986 (this
"Amendment") between CORPORATE PROPERTY ASSOCIATES, a California limited
partnership, and CORPORATE PROPERTY ASS0CIATES 2, a California limited
partnership, jointly and severally as tenants-in-common (collectively "Lessor"),
having an address at c/o W.P. Carey & CO., Inc., 911 Fifth Avenue, New York, New
York 10022, and PRE FINISH METALS INCORPORATED, an Illinois corporation, as
lessee ("Lessee"), having an address at 2340 Pratt Boulevard, Elk Grove Village,
Illinois 60007.
W I T N E S S E T H
WHEREAS, Line 6 Corp., as lessor, and Lessee, as lessee, entered into a
certain Lease and Agreement (the "12/1/80 Lease") dated as of December 1, 1980,
covering the land described on Schedule A attached hereto (the "Original Leased
Land"), together with certain improvements located thereon defined as
"Improvements" in paragraph 1 of the 12/1/80 Lease (the "Original Leased
Improvements"; the Original Leased Land and the Original Leased Improvements
covered by the 12/1/80 Lease being hereinafter called the "Original Premises");
and
WHEREAS, Lessor has succeeded to the rights of Line 6 Corp. and is now the
owner of the original Premises and the lessor under the 12/1/80 Lease; and
WHEREAS, Lessee has conveyed to Lessor fee ownership of the land described
on Schedule A-2 attached hereto (the "New Land"), and Lessee has granted and
sold to Lessor certain improvements located on the New Land, and, to the extent
owned by Lessee, located on the Original Leased Land (the "New Improvements");
and
WHEREAS, the conveyance of the New Land and the grant and sale of the New
Improvements by Lessee to Lessor were made upon the condition and understanding
that the New Land and New Improvements would be made subject to the 12/1/80
Lease; and
WHEREAS, the parties have agreed that in order to carry out the conditions
and understandings referred to above, the 12/1/80 Lease shall be amended as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged by Lessor and Lessee it is agreed as
follows:
ARTICLE I
Amendments of 12/1/80 Lease
---------------------------
SECTION 1.01. Effective as of the date of this Amendment (the "Effective
Date") the 12/1/80 Lease is amended as follows:
(a) The following terms defined in paragraph 1 are amended as follows:
(i) the Land: shall be the Original Leased Land and New Land
taken as a single tract as described on Schedule A-4 attached hereto.
(ii) the Improvements: shall be the Original Leased Improvements
and the New Improvements as described in Schedule A-3 attached hereto.
(iii) the Premises: shall consist of the Land and Improvements
as redefined in clauses (i) and (ii) above.
(iv) Manufacturing Machinery: manufacturing machinery and
equipment and other property and equipment which are used in the operation
of Lessee's business, at the business of a sublessee or assignee of Lessee
including Walbridge Coatings, An Illinois Partnership (the Partnership) and
not related to the care, and maintenance of the buildings
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included in the Improvements and which are owned by Lessee, or a sublessee
or assignee of Lessee including the Partnership.
(b) Paragraph 3 is deleted in its entirety and the following is inserted in
its place and stead:
"3. Terms. The Premises are leased for an interim term (the Interim
-----
Term), an initial term (the initial Term), a partnership term (the
Partnership Term), a primary term (the Primary Term), and, at Lessee's
option, for five consecutive additional terms of five years each (the
Extended Terms), unless and until the term of this Lease shall expire or be
terminated earlier pursuant to any provision hereof or by law. The Interim
Term, Initial Term, Partnership Term, Primary Term and each Extended Term
shall commence and expire on the dates set forth in Schedule B hereto. The
word "Term" or "term" used in this Lease without the remainder of any of
the foregoing definitions shall mean and refer to the entire term of this
Lease including all of such defined Terms which have been, or shall become,
applicable. If Lessee shall exercise its option to extend the terms of
this Lease for an Extended Term it shall give notice thereof to Lessor not
earlier than twelve months and not later than six months prior to the
expiration of the then existing Term.
(c) Paragraph 4(b) is amended by deleting the last sentence thereof and
replacing it with the following sentence:
"Lessee shall perform all of its obligations under this Lease at its
sole cost and expense, and shall pay all Basic Rent and additional rent
when due without notice or demand and without any abatement, deduction, or
setoff for any reason whatsoever, except as may be expressly provided in
this Lease."
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(d) Paragraph 5(a) is amended by deleting the last sentence thereof and
replacing such sentence with the following:
"Without limiting the generality of the foregoing, it is intended that
unless otherwise herein expressly provided, the Basic Rent shall be
absolutely net to Lessor so that this Lease shall yield, net, to Lessor
during the Term, the Basic Rent and all costs, expenses and obligations of
every kind and nature whatsoever relating to the Premises which may arise
and be attributable to the ownership, use or occupancy of the Premises
during the Term shall be paid by Lessee. Lessor and Lessee intend that the
liability and obligations of Lessee hereunder to pay the Basic Rent and to
perform all other covenants and agreements of Losses are each separate,
absolute, unconditional and independent covenants unless, and then only to
the extent that, any such obligation shall have been modified or terminated
pursuant to an express provision of this Lease. Lessor and Lessee hereby
covenant and agree that this Lease is intended to be and is a true lease
and not a financing lease."
(e) Paragraph 6(a) is amended by inserting in the 16th line thereof after
the words "levied or assessed" the words "in lieu of or" and after the word
"levy" in the 17th line the words "or any increase".
(f) Paragraph 8 is amended by inserting in the second line thereof after
the word "Lessor" the words: "and the holder of any mortgage to which this
Lessee is subject and subordinate".
(g) Paragraph 9 is amended by deleting from the second line thereof the
following wording: ", except for ordinary wear and tear,".
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(h) Paragraph 10 is amended as follows: (i) The last two sentences of
paragraph 10(a) are deleted in their entirety and the following inserted in
their place and stead:
"Lessee may place upon the Premises any inventory, trade fixtures,
machinery or equipment belonging to Lessee or third parties, including the
Manufacturing Machinery, and may remove the same at any time during the
term of this Lease. Lessee shall repair any damage to the Premises caused
by such placement or removal. Notwithstanding anything hereinabove to the
contrary, Lessee agrees that it will not make any such additions to or
alterations of the Improvements during any time when this Lease is subject
and subordinate to the First Mortgage (as defined in paragraph 26 of this
Lease) without having first obtained the prior written consent of Lessor
for any structural alterations, additions or improvements which approval
Lessor agrees will not be unreasonably withheld subject to compliance with
the requirements of such First Mortgage"; and
(i) Paragraphs 10(b), (c) and (d) are deleted therefrom. (i)
Paragraph 11 is amended as follows:
(i) By deleting therefrom the phrase ", or its assignee if this
Lease shall be assigned," wherever such phrase appears;
(ii) By inserting in the fourth line of Paragraph 11(a) on page 6
after the word "'Premises" which first appears the words "or otherwise
(other than in respect of the Manufacturing Machinery and other personal
property owned by persons other than Lessor or Lessee)";
(iii) By adding at the end of the first sentence of paragraph 21(a) on
page 7 after the word "domain", the following words:
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";provided, however, that notwithstanding the foregoing, if Lessor's
award is not affected or diminished thereby, Lessee shall be entitled
to make a separate claim in any such condemnation proceeding or other
action for any compensation to which Lessee shall be lawfully entitled
in respect of any property of Lessee, or of anyone who claims through
or under Lessee, which may be removed from the Premises during or upon
the expiration of the Term by Lessee or such other such person
pursuant to the terms of this Lease and also for moving expenses or
other items which by applicable law are payable to tenants without
diminishing an award to a Landlord.";
(iv) By amending the last sentence of paragraph 11(a) to read as
follows:
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Lessor and First Mortgagee in order to establish to their reasonable
satisfaction that the amounts being requested are due and payable and
do not exceed the value of the services and materials described in
such requests, and that upon such payment by Lessor and there will not
be outstanding any indebtedness which, if unpaid, might become the
basis of a vendor's, mechanic's, laborer's, or materialmen's lien on
the Premises or any part thereof, Lesser and First Mortgagee shall
have the right to withhold payment of any portion of such Net Proceeds
if it shall, reasonably appear at any time that the remaining amount
of such Net Proceeds may not be sufficient to complete such
Restoration, and Lessee shall promptly provide any deficiency from its
own funds. Any Net Proceeds remaining after final payment has been
made for such work shall be paid to Lessee if such amount is less than
$5,000. If such excess Net Proceeds are $5,000 or more they shall be
retained by Lessor and (i) the Basic Amount set forth in Schedule C
shall be reduced by an amount equal to such Net Proceeds so retained
by Lessor and (ii) if such Net Proceeds do not exceed the amount, if
any, then payable to First Mortgagee each installment of the Debt
Portion of the Basic Rent payable on or after the first Payment Date
occurring three months or more after the final payment to Lessee or
any other person for such work shall be reduced to the reduced amount
of monthly debt service thereafter payable under the First Mortgage
and if such Net Proceeds exceed the amount, if any, then payable to
First Mortgagee then, in addition to eliminating the Debt Portion of
the Basic Rent as above provided, each installment of the Equity
Portion of the Basic Rent payable on or after the first Payment Date,
occurring three months or more after the final
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payment to Lessee at any other person for such work shall be reduced
by a fraction thereof, the numerator of which shall be the amount so
retained by Lessor in excess of the amount, if any, payable to the
First Mortgagee and the denominator of which shall be the $5,453,099
portion of the Basic Amount prior to the reduction thereof referred to
in clause (i) hereinabove. In the event of any temporary requisition,
this Lease shall remain in full force and effect for the remainder of
the Term and Lessee shall be entitled to receive the entire Net
Proceeds payable during the remainder of the Term by reason of such
requisition."
(j) Paragraph 12 is deleted in its entirety and the following inserted in
its place and stead:
"12. Insurance. (a) Throughout the Term of this Lease, Lessee shall,
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at its own cost and expense:
(1) Keep the Improvements and equipment on, in or appurtenant to
the Improvements (other than the Manufacturing Machinery and other
personal property owned by persons other than Lessor) at any time
during the Term, including all alterations, additions and
improvements, insured for the benefit of Lessor against loss or damage
by fire, with all standard extended coverage and, if required by the
First Mortgagee and generally required on similar buildings, war
damage coverage, if such war damage insurance is available from a
governmental agency of the United States of America, in an amount
which will comply with less than ninety percent (90%) of the full
replacement value thereof, exclusive of excavations and foundations.
Such full replacement value shall be reevaluated at least every two
years by means of a so-called trend analysis report prepared by a
qualified appraiser taking into account,
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among other things, increases in construction costs in the area where
the Premises are located, or by such other reasonable, and customary
means approved by Lessor as are commonly used in respect of properties
similar to the Premises in order to determine, the amounts of
insurance to be carried thereon. Lessee shall provide to Lessor
promptly after Lessee's receipt thereof and, in any event, promptly
after Lessor's request therefor, copies of such reports and shall
carry additional amounts of insurance in accordance with the same. If
Lessee shall fail to have any such study made, Lessee shall have the
right to have such a report made at Lessee's expense. Supplementing
the foregoing, said fire insurance shall:
(i) be, written on a replacement cost basis;
(ii) be issued by such insurance companies under insurance
policies in form and content reasonably satisfactory to lessor;
(iii) comply with any changes in co-insurance requirements
applicable to the premises by the Fire Insurance Rating
Organization having jurisdiction thereof, if any, or any similar
body, or by statute;
(iv) in no event be in an amount less than required by the
first Mortgage;
(v) be carried in favor of Lessor, Lessee and First
Mortgage, as their interests may appear;
(vi) effectively provide that any act or omission of Lessee
shall not void the insurance coverage in respect of the interest
of Lessor at the First Mortgagee; and
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(vii) provide that, subject to the right of the First
Mortgagee whose interest may be covered by said policy or
policies, that the loss, if any, under any such policies shall be
adjusted with the insurance company or companies as follows:
A. by Lessee if the less is less than $5,000 and
B. by Lessor and the First Mortgagee if the loss
equals or exceeds $5.000.
The Net Proceeds of such fire insurance, if greater than $5,000,
shall be paid to and deposited with the First Mortgagee or a bank
or trust company in Toledo, Ohio designated by First Mortgagee
(hereafter in its capacity as the holder of such deposit, the
Depository) which shall hold, apply and make available the Net
Proceeds of such insurance, subject to the terms of this Lease,
to pay the cost of Restoration of the Premises as more
particularly provided in paragraph 11(c) hereof.
(2) Provide Lessor with comprehensive public liability insurance,
boiler (should boilers now or hereafter be installed), and machinery
insurance; and such other insurance as may from time to time be
reasonably required by Lessor as insurance against insurable hazards
which are customarily and generally required to be insured in respect
of similar buildings and improvements, with due regard for the height
and depth and type of the building, its construction and use and
occupancy. Such public liability insurance shall be not less than Five
Million Dollars ($5,000,000) Single Limit of liability including
property damage with provisions for
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deductibles if the parties shall agree in writing. Lessee shall every
three years increase such coverage in accordance with what in
appropriate and customary for a property of like character. Such
personal injury and property damage liability policies shall cover the
entire Premises. All the insurance described in this subparagraph
12(a)(2) shall be carried in favor of and insure Lessor, Lessee and
the First Mortgagee as their interest may appear.
(3) Provide Workers' Compensation insurance and employer's
liability insurance as required by law.
(4) Such other insurance, in such amounts and against such risks,
as is commonly obtained in the case of property similar in use to the
Premises in the State of Ohio.
(b) Lessee shall procure policies for all said insurance for periods
from one (1) to five (5) years, as Lessee shall elect, and shall deliver to
Lessor simultaneously with the execution of this Lease binders in respect
of the required insurance and within 30 days after the execution of this
Lease shall use its best efforts to deliver the originals or certified
copies of such policies, with evidence, by stamping or otherwise, of the
payment of the premiums thereon. Such insurance coverage may be part of a
blanket insurance coverage carried by Lessee covering several properties.
In addition, the insurance to be provided pursuant to subparagraphs
12(a)(1), (2) and (4) may provide for a deductible of not more than $50,000
per loss.
Each such policy shall contain provisions precluding the cancellation
of the same without at least thirty (30) days, prior written notice to
Lessor and the First Mortgagee and
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providing for written notice to Lessor of the non-payment of any premium
due thereunder. Lessee shall deliver to Lessee by no later than twenty (20)
days prior to the expiration of each such policy satisfactory evidence of
renewal and shall use its best efforts, to deliver to Lessor and the First
Mortgagee within thirty (30) days thereafter the original policy or a
duplicate thereof and a duplicate receipt evidencing the payment thereof.
(c) All premiums and charges for all of such policies shall be paid by
Lessee, and if Lessee shall fail to make such payment when due, or carry
any such policy, Lessor may, but shall not be obligated to, make such
payment or carry such policy, and the amount paid by Lessor, with interest
thereon, shall be repaid to Lessor by Lessee an additional rent on demand
and all such mounts so repayable, together with such interest, shall be
considered as additional rent payable hereunder, for the collection of
which Lessor shall have all of the remedies herein or by law provided for
the collection of rent. Payment by Lessor of any such premium or the
carrying by Lessor of any such policy shall not be deemed to waive or
release the default of Lessee in respect thereof.
(d) Lessee shall not violate or permit to be violated any of the
conditions or provisions of any such policy, and Lessee shall so perform
and satisfy the reasonable requirements of the companies writing such
policies.
(e) All of the insurance policies to be obtained and maintained by
Lessee under this paragraph 12 shall be held by Lessor or the First
Mortgagee, at the option of the First Mortgagee. In such event, duplicate
originals of such policies, if obtainable, or, if not obtainable, certified
copies, if obtainable, or, if not obtainable, certificates thereof shall be
delivered to Lessor and the First Mortgages.
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(f) Lessee shall not carry separate insurance, concurrent in coverage
and contributing in the event of loss with any insurance required to be
furnished by Lessee under the provisions of this paragraph 12 if the effect
of such separate insurance would be to reduce the protection or the payment
to be made under said insurance required to be furnished by Lessee, unless
Lessor (and the mortgagee(s) where said insurance required to be carried
requires the inclusion of the mortgagee(s)) are included as insureds with
loss payable as hereinabove provided. Lessee shall promptly notify Lessor
of the issuance of any such separate insurance and shall cause such
policies to be delivered to Lessor and the First Mortgagee as provided in
this paragraph."
(k) Paragraph 13 is deleted in its entirety and the following inserted in
its place and stead:
"13. Purchase Option; Right of First Refusal.
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(a) If Lessee is not at the time in default hereunder, Lessee shall
have the irrevocable right, option and privilege to purchase the Premises
(which right, option and privilege is coupled with an interest in the
Premises) with a closing date falling in the period of time beginning with
the termination date of the Partnership Term and ending with the
termination date of the Primary Term at a purchase price equal to the
greater of (i) the fair market value of the Premises (exclusive of
manufacturing machinery) at the date the notice of exercise of the option
is given, as determined by an appraiser selected by Lessee and approved by
Lessor or (ii) an amount equal to $13,222,044 plus 2 1/2% thereof per
annum, not compounded, from December 9, 1960 to the closing date. If Lessee
desires to exercise its option under this paragraph, it must do so not
later than six months before such closing date
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by giving notice of such exercise designating such closing date to Lessor
in the manner provided in paragraph 20 of this Lease.
(b) If at any time during the Primary Term or any Extended Term of
this Lease, Lessor receives a bona fide offer to purchase the Premises (or
any part thereof), other than a bid or offer to purchase the Premises at
any sale incidental to the exercise of any remedy provided for in the First
Mortgage or any other mortgage or similar instrument creating a lien
thereon (severally herein a Mortgage), which Lessor desires to accept,
Lessor will prior to accepting the same, give Lessee an opportunity to
purchase the Premises (or such part thereof) upon the same terms and
conditions contained in such offer. Lessee must exercise its rights within
60 days of receiving written notice of the full terms of sale and Lessor's
intention to sell. If Lessee fails to exercise its right to purchase,
Lessor may proceed to sell the Premises (or such part thereof) in
accordance with the terms of the offer. If such sale is not made, Lessee's
right to purchase shall be reinstated as aforesaid, and if only a part of
the Premises is sold in such manner, Lessee's rights to purchase shall
remain as to the balance of the Premises and are coupled with an interest.
Except as provided above in respect of a sale incidental to the exercise of
a remedy under a Mortgage, this right in favor of Lessee shall be binding
upon any grantee of the Premises, or part thereof, during the period the
Lease is in effect so that Lessee shall have such rights to purchase from
the owners of the Premises during the Primary Term and all Extended Terms
of the Lease in the event Lessee does not exercise its rights in earlier
sales. The rights granted Lessee under this paragraph are coupled with an
interest in the Premises. The provisions of paragraph 14 of this Lease
shall not apply to any purchase and sale made under this paragraph. Any
such conveyance
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or transfer pursuant to this paragraph 13(b) shall be expressly subject to
this Lease and any mortgage to which this Lease is subject and subordinate
including, without limitation, the First Mortgage; provided, however, that
Lessor's and Lessee's rights and obligations hereunder shall be subject to
Lessor's obligation to comply with the requirements of the First Mortgage."
(l) Paragraph 14(a) is amended by inserting in the sixth line thereof at
page 11 before the word "Mortgage" the word "First" and inserting after the word
"Mortgage" the words "(provided that such First Mortgage shall have been paid in
full and satisfied either prior to or in connection with such purchase of the
Premises by Lessee)".
(m) Paragraph 15 is deleted in its entirety and the following is inserted
in its place and stead:
"15. Performance by Subtenant. Lessor agrees that it will accept
------------------------
from Subtenant (as defined in Paragraph 16 of this Lease) performance of
the Lessee's obligations hereunder which are not by their nature
susceptible of performance only by Lessee. Lessor also agrees that after
receipt from Lessee of specific written documentation reasonably
satisfactory to Lessor by which Lessee grants to a particular subtenant the
benefits of any particular provision(s) of this Lease, Lessor will deal
with such subtenant in accordance with such documentation. Nothing in this
paragraph shall relieve Lessee from its primary liability for the
performance of its obligations under this Lease nor shall the provisions of
this paragraph limit or affect the provisions of paragraph 16 hereof."
(n) Paragraph 16 is deleted in its entirety and the following is inserted
in its place and stead:
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"16. Assignment and Subletting. (a) Except as hereinafter expressly
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provided, Lessee may not voluntarily or involuntarily, by operation of law
or otherwise, (i) assign or otherwise transfer this Lease or the term and
estate hereby granted, (ii) sublet the Premises or any part thereof to
anyone other than Walbridge Coatings, An Illinois Partnership (Walbridge
Coatings, An Illinois Partnership, together with any successor thereto as
Subtenant under its Sublease dated as of the date of this Lease (the
Sublease) which has succeeded as such Subtenant in accordance with the
Sublease and this Lease, being referred to herein as the Subtenant), or
allow the same to be used, occupied or utilized by anyone other than Lessee
or Subtenant, or (iii) mortgage, pledge, encumber or otherwise hypothecate
this Lease or the Premises or any part thereof, in any manner whatsoever,
without in each instance obtaining the prior written consent of Lessor.
Notwithstanding the preceding provisions of this paragraph, Lessee may,
without Lessor's consent, assign this Lease to or sublet to or allow all or
a portion of the Premises to be used, occupied or utilized by a corporation
or other entity which owns all of the stock of Lessee, a wholly owned
subsidiary of Lessee or another corporation or entity which is wholly owned
by any corporation or entity which wholly owns Lessee. Lessor shall not
unreasonably withhold its consent to an assignment or subletting of the
entire Premises provided that Lessee shall have provided such financial and
other information and have executed such documentation in respect thereof
as Lessor shall reasonably require, which may include, without being
limited to, a reconfirmation by any guarantor of Lessee's obligations under
this Lease that such
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assignment or subletting shall not affect such guaranty, and provided that
all other provisions of this Lease shall have been complied with."
(b) If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Lessor may collect rent from the assignee. If
the Premises or any part thereof are sublet or used or occupied by anybody
other than Lessee, whether or not in violation of this Lease, Lessor may,
after default by Lessee, and expiration of Lessee's time to cure such
default, collect rent from the subtenant or occupant. In either event,
Lessor may apply the net amount collected to Basic Rent and any additional
rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of paragraph
16(a), or the acceptance of the assignee, subtenant or occupant as tenant,
or a release of Lessee from the performance by Lessee of Lessee's
obligations under this Lease. The consent by Lessor to an assignment,
mortgaging, subletting or use or occupancy by others or an assignment,
subletting, use or occupancy by others without Lessor's consent shall not
in any way be considered to relieve Lessee from obtaining the express
written consent of Lessor to any other or further assignment, mortgaging or
subletting or use or occupancy by others not expressly permitted by this
paragraph. References in this Lease to use or occupancy by others (that is,
anyone other than Lessee) shall not be construed as limited to subtenants
and those claiming under or through subtenants but as including also
licensees and others claiming under or through Lessee, immediately or
remotely.
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(c) Any assignment or transfer, whether made with or without Lessor's
consent pursuant to paragraph 16(a), shall be made only if, and shall not
be effective until, the assignee or transferee shall execute, acknowledge
and deliver to Lessor an executed copy of such assignment or other transfer
document and an agreement in form and substance reasonably satisfactory to
Lessor whereby the assignee or transferee shall assume the obligations of
this Lease on the part of Lessee to be performed or observed from and after
the effective date of the assignment and whereby the assignee or transferee
shall agree that the provisions in subparagraph 16(a) shall,
notwithstanding such assignment or transfer, continue to be binding upon it
in respect of all future assignments and transfers. The original named
Lessee covenants that, notwithstanding any assignment or transfer, whether
or not in violation of the provisions of this Lease, and notwithstanding
the acceptance of Basic Rent and/or additional rent by Lessor from an
assignee, transferee, or any other party, the original named Lessee shall
remain fully and primarily liable for the payment of Basic Rent and
additional rent and for the other obligations of this Lease on the part of
Lessee to be performed or observed. No sublease shall be effective until
Lessee shall deliver to Lessor an executed copy thereof.
(d) The joint and several liability of Lessee and any immediate or
remote successor in interest of Lessee and the due performance of the
obligations of this Lease on Lessee's part to be performed or observed
shall not be discharged, released or impaired in any respect by any
agreement or stipulation made by Lessor extending the time of, or modifying
any of the obligations of, this Lease, or by any waiver or failure of
Lessor to enforce any of the obligations of this Lease or by reason of the
applicability of any surety
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defenses, generally; provided, however, that in no event shall Lessee's
liability be any greater than it would have been in the absence of such a
modification of this Lease.
(e) Notwithstanding the foregoing provisions of this paragraph 16,
from and after the end of the Partnership Term and provided the
indebtedness secured by the First Mortgage has been fully paid, Lessee may
sublet the Premises or assign its interests hereunder, provided that each
sublease shall expressly be made subject to the provisions hereof. No such
assignment or sublease shall modify or limit any right or power of Lessor
hereunder or affect or reduce any obligation of Lessee hereunder, and all
such obligations shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no assignment or
subletting had been made."
(o) Paragraph 17 is amended by adding at the end thereof the following:
"Notwithstanding the foregoing, Lessee shall comply with all
requirements imposed upon Lessor by the First Mortgage in respect of a
permitted contest."
(p) Paragraph 18 is amended by deleting the words which commence with "if
Lessee shall" in the 3rd line and end with the words "if Lessee" in the 14th
line thereof which appear on page 19 and inserting in their place the following:
"if Lessee shall (1) fail to pay any Basic Rent, additional rent, or
other sum required to be paid by Lessee hereunder when and as the same
shall became due and payable and such default has continued for ten
(10) days after Lessor has given written notice of such default to
Lessee, or (2) fail to duly observe or perform any other covenant,
condition or agreement of Lessee contained in this Lease and such
default shall have continued for fifteen (15) days after Lessor has
given written notice of such default,
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or if such default cannot be cured by the payment of money and cannot
with diligence be cured within such 15 day period, if Lessee shall fail
to promptly and with due diligence cure the same; or (ii) it any
default shall be made in the due observance or performance of any
covenant, condition or agreement of Material Sciences Corporation, a
Delaware corporation (MSC) contained in its Lease Guaranty Agreement to
Lessor and First Mortgagee and such default shall have continued for 10
days after written notice thereof, in the case of a monetary default,
or for 15 days after written notice of such default in the case of any
other default, or, if such other default cannot with diligence be cured
within such 15 day period, if Lessee".
(q) Paragraph 19(c) is amended by adding at the end thereof the following:
"Lessee also agrees to indemnify and hold First Mortgagee
harmless from and against any and all claims, loss, liability, damages
or expenses, including but not limited to reasonable attorneys' fees,
which are incurred by First Mortgagee by reason of any accident,
personal injury or property damage sustained in, on or about the
Premises."
(r) Paragraph 21 is amended by deleting the last sentence thereof and
replacing it with the following:
"Any such certificate may be relied upon by any prospective
mortgages or purchaser of the Premises and also by Lessor and First
Mortgagee."
(s) Paragraph 26 is deleted in its entirety and the following is inserted
in its place and stead:
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"26. Subordination; Miscellaneous. (a)(i) Subject to
----------------------------
subparagraph 26(a)(ii), this Lease, and all rights of Lessee
hereunder, are and shall be subject and subordinate to that certain
first mortgage on Lessor's interest in the Land and Improvements from
Lessor to Creditanstalt-Bankverein (New York Branch) (such mortgagee,
together with any subsequent holder of such first mortgage or other
successor in interest to such mortgagee, including, without
limitation, MSC, Lessee's parent corporation, or its designee, being
herein referred to as First Mortgagee) and to each and every advance
made or hereafter to be made under such first mortgage, and to all
renewals, modifications, replacements and extensions of such first
mortgage and spreaders and consolidations of such first mortgage (such
first mortgage, together with or as modified by such advances,
renewals, modifications, substitutions, replacements, extensions,
spreaders and consolidations, the First Mortgage). This subparagraph
26(a)(i) shall be self-operative and no further instrument of
subordination shall be required. Nonetheless, in confirmation of such
subordination Lessee shall promptly execute, acknowledge, and deliver
any instrument that Lessor or First Mortgagee or any of their
respective successors in interest may reasonably request to evidence
such subordination.
(ii) The subordination provisions contained in subparagraph
26(a)(i) in respect of the First Mortgage are subject to the express
condition that so long as Lessee is not in default in the payment of
any Basic Rent or additional rent or in the performance of any other
obligations hereunder for a period beyond the time allowed in this
Lease to cure such default, Lessee will not be made a party to any
action or
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proceeding to foreclose the First Mortgage and such action or
proceeding will not result in a cancellation or termination of this
Lease, and that in the event First Mortgagee becomes the owner of the
fee or in the event of the sale of the Land and/or improvements as a
result of any action or proceeding to foreclose the First Mortgage,
this Lease shall continue in full force and effect (subject to the
provisions of subparagraph 26(a)(iv)) as a direct lease between Lessee
and the then owner of the fee upon all of the terms, covenants and
conditions of this Lease. The provisions of this subparagraph shall be
self-operative and no further instrument of subordination and
nondisturbance shall be required by the First Mortgagee.
(iii) If any act or omission of Lessor would give Lessee the
right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Lessee
shall not exercise such right (1) until it has given written notice of
such act or omission to Lessor and First Mortgagee and (2) until a
reasonable period for remedying such act or omission shall have
elapsed following the giving of such notice and following the time
when the First Mortgagee shall have become entitled under the First
Mortgage to remedy the same (which reasonable period shall in no event
be less than the period to which Lessor would be entitled under this
Lease or otherwise, after similar notice, to effect such remedy),
provided First Mortgagee shall with due diligence give Lessee notice
of intention to, and commence and continue to, remedy such act or
omission. This is a net lease and nothing in this subparagraph is
intended to imply the existence of or to create any right on the part
of Lessee to cancel or terminate this Lease.
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(iv) If First Mortgagee or any other person shall succeed to the
rights of Lessor under this Lease, whether through possession or
foreclosure action or delivery of a deed, then at the request of such
party so succeeding to Lessor's rights (herein called Successor
Lessor) and upon such Successor Lessor's written agreement to accept
Lessee's attornment, Lessee shall attorn to and recognize such
Successor Lessor as Lessee's landlord under this Lease and shall
promptly execute and deliver any instrument that such Successor Lessor
may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a
direct lease between the Successor Lessor and Lessee upon all of the
terms, conditions and covenants as are set forth in this Lease except
that the Successor Lessor shall not (i) be liable for any previous act
or omission or default of Lessor under this Lease; (ii) be subject to
any offset, not expressly provided for in this Lease, which
theretofore shall have accrued to Lessee against Lessor; or (iii) be
bound by any previous modification, termination or surrender of this
Lease which is not expressly provided for in this Lease or by any
previous prepayment of more than one month's Basic Rent, unless such
modification or prepayment shall have been expressly approved in
writing by First Mortgagee.
(v) Lessor and Lessee acknowledge that pursuant to the terms of
Section 1.01 of the Note (as defined in the First Mortgage) and
pursuant to various provisions of the First Mortgage including,
without being limited to, Section 3.3 thereof, and of the Assignment
(as defined in the First Mortgage) Lessor may be required to make
various deliveries and/or payments to First Mortgagee in order to
obtain, among
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other things, an extension of the term of the Note and various
consents and approvals. If Lessor shall incur any obligations to First
Mortgagee in order to obtain such an extension of the Note or to
obtain other consents or approvals, Lessee agrees that it will, upon
demand by Lessor, pay and/or perform, or cause to be paid and/or
performed, the obligations of Lessor to First Mortgagee pursuant to
such provision of the Note or pursuant to the First Mortgage or
Assignment.
(vi) Lessor agrees that without Lessee's prior written consent,
Lessor shall not agree to any modification of the First Mortgage (or
other Loan Documents, as defined in the First Mortgage) which would
materially increase Lessee's obligations under this Lease. Lessor
further agrees that if Lessee shall request Lessor to consent to
changes in the terms or conditions of the First Mortgage which may
result in a concomitant change in the obligations of Lessor and Lessee
under this Lease including, but not being limited to, changes in the
Basic Rent payable by Lessee, Lessor will not unreasonably withhold or
delay its agreement to any such changes upon and subject to the
following terms and conditions, all or any or which may be waived by
Lessor:
(1) The First Mortgage shall then held by a First Mortgagee
which is a commercial or savings bank, savings and loan
association, insurance company, trust company, pension fund or
other similar institutional lender;
(2) The proposed changes shall be such as are customary in
institutional mortgage loans covering property similar to the
Premises upon terms and conditions such as those proposed by
Lessee;
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(vii) Without limiting any other provision of this Lease, if
the First Mortgage or the Note contains any covenant or agreement of
Owner in respect of the, ownership, operation, repair or maintenance
of the Premises, or any portion thereof, or in respect of the payment
of any interest due after a default under the Note which is greater in
scope than any similar provision of this Lease or which is not
contained in this Lease, Lessee agrees that such covenant or agreement
shall be deemed to be incorporated herein and Lessee shall comply with
the same on Owner's behalf as if such covenant or agreement were set
forth at length herein.
(b) 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. Without
limiting the generality of the foregoing, no agreement to accept or
surrender of all or any part of the Premises shall be valid unless in
writing and signed by Lessor and the delivery of keys to an employee
or agent of Lessor shall not operate as termination of this Lease or a
surrender of the Premises. Further, no payment by Lessee or receipt by
Lessor with knowledge of a default on the part of the other party
shall be deemed a waiver of such default and no payment by Lessee or
acceptance by Lessor of a lesser amount than the correct amount of
rent due hereunder shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and
satisfaction,
-25-
and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance or pursue any other remedy in
this Lease or by law provided.
(c) Lessee shall look only to Lessor's estate and property in the
Land and Improvements (and the unaccrued rents, issues and profits
thereof) for the satisfaction of Lessee's remedies for the collection
of a judgment (or other judicial process) requiring the payment of
money by Lessor in the event of any default by Lessor hereunder, and
no other property or assets of any of (i) Lessor, Corporate Property
Associates, Corporate Property Associates 2, Carey Corporate Property,
Inc., Second Carey Corporate Property, Inc., (ii) any person
affiliated with any person referred to in the proceeding clause (i),
(iii) any director, officer, general or limited partner, employee or
agent of any person referred to in the preceding clauses (i) and (ii)
(or any legal representative, heir, estate, successor or assign of any
thereof) or (iv) any predecessor or successor to any person referred
to in clause (i) above, whether a partnership, corporation or other
entity shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Lessee's remedies under or in
respect of this Lease, the relationship of Lessor or Lessee hereunder
or Lessee's use or occupancy of the Premises.
(d) The term "Lessee" shall mean the Lessee herein named and any
assignee or other successor in interest (immediate or remote) of the
Lessee herein named, which at the time in question is the owner of all
or any part of the Lessee's estate or any reversion therein or any
interest granted by this Lease as though such person had been named
herein as Lessee; but the foregoing provisions of this
-26-
subparagraph shall not be construed to permit any assignment of this
Lease or to relieve the Lessee herein named or any assignee or other
successor in interest (whether immediate or remote) of the Lessee
herein named from the full and prompt payment, performance and
observance of the covenants, obligations and conditions to be paid,
performed and observed by Lessee under this Lease.
(e) The term "Lessor" shall mean only the owner at the time in
question of the Land and Improvements so that in the event of any
transfer or transfers of title to the Land and Improvements, the
transferor shall be and hereby is relieved and freed of all
obligations of Lessor 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
Lessor herein during the period it is the holder of Lessor's interest
under this Lease.
(f) The term "and/or" when applied to two or more matters or
things shall be construed to apply to any one or more or all thereof
as the circumstances warrant at the time in question.
(g) 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.
(h) This Lease may be executed in one or more counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
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(i) Lessee expressly acknowledges and agrees that Lessor has not
made and is not making, and Lessee, 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 way be
made between the parties concurrently with the execution and delivery
of this Lease and which shall expressly refer to this Lease. This
Lease and said other written agreement(s) made concurrently herewith,
if any, are hereinafter referred to as the "Lease Documents". It is
understood and agreed that all understandings and agreements
heretofore had between the parties are merged in the Lease Documents,
which alone fully and completely express their agreement and that the
same are entered into after full investigation, neither party relying
upon any statement or representation not embodied in the Lease
Documents, made by the other."
SECTION 1.02. Schedules A, A-1, A-2, A-3, A-4, B and C as corrected,
amended and attached hereto are incorporated herein by reference and effective
as of the Effective Date shall replace all schedules now attached to the 12/1/80
Lease.
ARTICLE II
Other Provisions
----------------
SECTION 2.01. As amended hereby, the 12/1/80 Lease is ratified and
confirmed by Lessor and by Lessee and shall be binding upon and inure to the
benefit of Lessor and of Lessee, their respective successors and assigns.
Without limiting the generality of the foregoing, Lessor and Lessee agree that
Paragraph 25 is intended to apply to the Premises, as the same have been
expanded pursuant to this Amendment.
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IN WITNESS WHEREOF, Lessor and Lessee have each caused this Amendment to be
duly executed and delivered, all as of the date first above written.
Witnesses as to both signatures: PRE FINISH METALS INCORPORATED
___________________________ By: /s/_______________________________
Name: J.R. Robinson
___________________________ Title: Vice President
By: /s/______________________________
Name: W.R. Beattie
Title: Secretary
(Seal)
Witnesses as to both signatures: CORPORATE PROPERTY ASSOCIATES
By: Carey Corporate Property, Inc.,
___________________________ Corporate General Partner
___________________________ By: /s/______________________________
Name: Stephen G. Nordquist
Title: President
By: /s/______________________________
Name: Samuel H. Karsch
Title: Assistant Secretary
(Seal)
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Witnesses as to both signatures: CORPORATE PROPERTY ASSOCIATES 2
By: Second Carey Corporate Property, Inc.,
___________________________ Corporate General Partner
___________________________ By: /s/______________________________
Name: Stephen G. Nordquist
Title: Executive Vice President
By: /s/______________________________
Name: Samuel H. Karsch
Title: Assistant Secretary
(Seal)
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