RIDER ANNEXED TO AND MADE PART OF THE LEASE (the "Lease"), dated as of the
30th day of April, 1996, between PARK ASSOCIATES, a New York partnership having
an office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereafter referred to
as "Landlord") and Superior Supplements, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, with an office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (hereafter referred to as "Tenant").
W I T N E S S E T H :
In consideration of the execution and delivery of the Lease, Landlord and
Tenant hereby agree as follows:
1. In case of any conflict or inconsistency between any of the provisions
of this Rider, and the provisions of the within Lease, the provisions of this
Rider shall prevail and control.
2. Tenant shall have the right to increase the capacity of the electrical
service at the building. In doing such work, Tenant shall use only licensed,
experienced, reputable and insured electricians who have, prior to the
commencement of any work, first obtained all permits and/or certificates
required therefor. Tenant further agrees that the work will be diligently
prosecuted to completion, in a good and workmanlike manner, using only new
materials. All such work shall be in compliance with all rules, regulations,
orders, laws, etc. of all governmental entities and insurance companies having
jurisdiction over the Premises. Landlord shall have no obligation to in any way
assist Tenant with such work, it being specifically understood and agreed that
said work is solely for the convenience of Tenant. Upon installation, all work
shall immediately become and remain the property of Landlord. At such later
date, if, in connection with Landlord's Certificate of Occupancy for the
Premises, the town, or any subdivision thereof, or any other entity or entities
having jurisdiction over the Premises, require changes, modifications,
explanations, plans, assistance, or any other matter or thing in connection with
the Certificate of Occupancy, by reason of Tenant's work, Tenant shall, at its
sole cost and expense, do, make, or provide the same. During the full term of
this Lease, and for so long as Tenant's occupancy of the Premises continues,
Tenant shall, notwithstanding any other provisions to the contrary, be fully
responsible, at its sole cost and expense, for any and all maintenance, repairs,
replacements and restorations with regard to any of its work, and any and all
damage to the Premises caused by or in any way connected with Tenant's work, and
hereby agrees to indemnify and save Landlord harmless in connection therewith in
connection with Tenant's indemnification obligations under this Lease. It is
expressly agreed that Landlord shall have no obligation whatsoever with regard
to Tenant's work and Tenant
hereby expressly releases Landlord in connection therewith.
Upon completion of the increase of the electrical capacity of the building
in accordance with the prior paragraph, as evidenced by the presentation to
Landlord of the "underwriter's certificate" for the work, a true and complete
copy of each ▇▇▇▇ actually paid by Tenant for such work, and a duly executed
waiver of all liens by the contractors performing such work, Landlord agrees to
reimburse Tenant for one-half (1/2) of the entire cost of the work, as evidenced
by the paid bills provided to Landlord, provided, however, that notwithstanding
the entire cost of the work, Landlord's obligation to reimburse Tenant shall not
exceed $6,000.00.
3. Landlord agrees that the loading docks at the Premises shall be in
working order.
4. The last sentence of subparagraph (A) of Section 14 of the Lease is
deleted in its entirety and the following shall be substituted in place and
stead thereof:
"In addition, subject to obtaining Landlord's prior consent, Tenant shall
not have the right to sublet the Premises more than once during the term of
this Lease in addition to the subletting to PDK Labs, Inc. as approved in
this subparagraph (A)."
5. Without creating any obligation on the part of Tenant, Landlord agrees
that Tenant shall have no responsibility hereunder for any petroleum products,
if any, at the Premises at the date hereof, which resulted from the oil heating
system which previously serviced the Premises.
In Witness Whereof, Landlord and Tenant have set their respective hands
hereunto as of the date first above written.
Landlord: Park Associates
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Partner
Tenant: Superior Supplements Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ pres
---------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
LEASE
BY AND BETWEEN
PARK ASSOCIATES, LANDLORD
AND
SUPERIOR SUPPLEMENTS, INC., TENANT
FOR THE PREMISES KNOWN AS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
THIS INDENTURE OF LEASE (the "Lease"), dated as of the 30th day of April,
1996, between PARK ASSOCIATES, a New York partnership having an office at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereafter referred to as "Landlord")
and Superior Supplements, Inc., a corporation duly organized and existing under
the laws of the State of Delaware, with an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (hereafter referred to as "Tenant").
W I T N E S S E T H:
Landlord and Tenant agree with each other as follows:
SECTION 1. PREMISES:
Landlord hereby leases unto Tenant and Tenant hereby hires from Landlord the
premises known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, also known as District
800, Section 182, Block 0001, Lot 029.010 (Said premises together with the
building thereon sometimes referred to as the "Premises" or "Demised Premises").
The building on the Premises is approximately 40,000 square feet in area.
SECTION 2. TERM:
A. To have and to hold the Premises for that term commencing on May 1, 1996, and
ending on October 14, 1998, both dates inclusive, unless such term shall cease
or sooner expire as hereinafter provided. Landlord and Tenant agree to confirm
in writing the actual commencement and termination dates of the term of this
Lease within five (5) days of a request from Landlord. Tenant's failure to so
confirm the term of this Lease as required shall be deemed an agreement by
Tenant that the term of this Lease is as set forth in Landlord's request.
B. Nothing contained in this Lease shall be construed to prohibit Landlord from
placing any mortgage or mortgages against the Premises to which this Lease shall
be subject and subordinate to, in accordance with the provisions herein set
forth.
C. This Lease is subject to:
(1) the same estates, interests, matters and defects in title, if any, and
such covenants, declarations, easements, restrictions, and utility easements as
are of record, including said covenants and declarations substantially in the
form attached hereto as Exhibit "C" dated May 11, 1973, and recorded on May 24,
1973, in Liber 7404, cp 558 and Exhibit "D" dated November 20, 1974, and
recorded on December 11, 1974, in Liber 7764, cp 407. This Lease shall also be
subject to such further covenants and restrictions as Landlord may reasonably
impose subsequent to the date hereof, provided such further covenants and
restrictions do not materially interfere with Tenant's use of the Premises, nor
impose any additional monetary burden on Tenant.
(2) the right of Landlord to grant easements to utility and other companies
for service to the Premises.
D. This Lease, and/or any memorandum thereof, shall not be recorded by Tenant,
or any person(s) or entity(s) claiming under or through Tenant.
SECTION 3: ANNUAL FIXED RENTAL RATE:
A. (1) Annual Fixed Rate: Tenant covenants and agrees to pay Landlord, in
lawful money of the United States, at the office of Landlord, or at
such place as Landlord may designate, without previous demand
therefor, and without any setoff or deduction whatsoever, annual base
rental ("Base Rent"), payable in equal monthly installments, in
advance, on the first day of each and every calendar month for each
and every year of the term of this Lease, or any extension thereof, as
follows:
(i) For any period of occupancy prior to August 1, 1996, no Base Rent
shall be due.
(ii) For the period August 1, 1996 through May 31, 1997, both dates
inclusive, Base Rent shall be twenty-three thousand and 00/100
($23,000.00) dollars monthly.
(iii) For the period June 1, 1997 through October 14, 1997, Base Rent
shall be nineteen thousand one hundred sixty-six and 67/100
($19,166.67) dollars monthly.
(iv) For the period October 15, 1997 through October 14, 1998, Base
Rent shall be two hundred fifty thousand and 00/100 ($250,000.00)
Dollars, payable twenty thousand eight hundred thirty-three and
33/100 ($20,833.33) dollars monthly.
Tenant agrees that the first payment of Base Rent Lease shall be due and
payable to Landlord upon the execution of this agreement. Said annual base
rental shall be in addition to all other payments to be made by Tenant as
hereinafter provided.
(2) All monthly rental payments shall be paid in advance on the first day
of each and every calendar month included within said periods. Any
monthly installments of Base Rent not paid within ten (10) days of the
due date shall be subject to a late payment and administrative charge
of five hundred and 00/100 ($500.00) dollars in each instance that a
monthly installment of Base Rent is not timely made. Notwithstanding
the foregoing, for the
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first instance only in any Lease Year during the term of this Lease if
Base Rent is not paid within ten (10) days of the due date, no late
payment and administrative charge shall be due, unless Landlord must
institute summary proceedings or other legal proceedings or other
legal proceedings or actions to collect the Base Rent. All other
payments becoming due hereunder shall bear interest, as defined in
Section 16 hereof, from and after the first calendar day when the same
shall be due and payable. Such late payment and administrative charge
shall be due as additional rent, and shall be in addition to all of
Landlord's other rights and remedies hereunder, in the event of
Tenant's default. In the event Tenant makes payment to Landlord of the
total Base Rent and additional rent due Landlord (including any late
payment charges and interest), acceptance by Landlord of such payment
by Tenant shall be deemed to cure the default by Tenant with respect
to the overdue amount. In the event that a late payment and
administrative charge is payable hereunder, whether or not collected,
for three (3) consecutive installments of Base Rent, then Base Rent
shall automatically become due and payable quarterly in advance,
rather than monthly, notwithstanding any other provision of this Lease
to the contrary. In the event any check delivered by Tenant to
Landlord is returned uncollected, for non-sufficient funds, or for any
like reason, then, in addition to any and all other rights and
remedies available to Landlord hereunder, Tenant shall pay to
Landlord, as additional rent, a fee of $20.00 per check to compensate
Landlord for the additional administrative cost and expense incurred
by Landlord by reason of such check.
(3) All costs and expenses which Tenant assumes or agrees to pay pursuant
to this Lease shall at Landlord's election be treated as additional
rent and, in the event of nonpayment, Landlord shall have all the
rights and remedies herein provided for in the case of nonpayment of
rent or of a breach of condition. If Tenant shall default in making
any payment required to be made by Tenant (other than the payment of
Base Rent required by Section "3" of this Lease) or shall default in
performing any term, covenant or condition of this Lease on the part
of Tenant to be performed which shall involve the expenditure of money
by Tenant, Landlord, at Landlord's option may, but shall not be
obligated to, make such payment on behalf of Tenant, or expend such
sum as may be necessary to perform and fulfill such term, covenant or
condition and any and all sums so expended by Landlord, with interest
thereon as defined in Section 16, from the date of such
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expenditure, shall be deemed to be additional rent, in addition to the
Base Rent, and shall be repaid by Tenant to Landlord, on demand, but
no such payment or expenditure by Landlord shall be deemed a waiver of
Tenant's default or shall it affect any other remedy of Landlord by
reason of such default.
(4) It is fully understood and Landlord and Tenant agree that this is a
"net, net, net lease", and Tenant is to be fully responsible, liable
and is to pay for all taxes, fees, expenses, assessments, insurance,
repairs, both interior and exterior, nonstructural, ordinary or
extraordinary, foreseen and unforeseen and any other charges for the
Premises, except as otherwise set forth in this Lease and Landlord
shall be indemnified and saved harmless by Tenant from and against all
costs and expenses arising from nonpayment of or noncompliance with
the same. Landlord is to be fully responsible for all costs and
expenses of all "Structural Repairs" required during the term of this
Lease, except "Structural Repairs" necessitated by the negligent,
grossly negligent or willful acts of Tenant, its employees, officers,
agents, servants, and the like. "Structural Repairs" are defined as
repair to exterior walls, foundation, window frames and sanitary
sewers. During the first year only of the term of this Lease, Landlord
shall make all repairs to the roof not caused by the negligent,
grossly negligent or willful acts of Tenant, its employees, officers,
agents, servants, and the like. Thereafter, Tenant shall be fully
responsible, at its sole cost and expense, for all roof repairs.
B. In addition to all other payments to be made by Tenant pursuant to this
Lease, for the full term of this Lease, as for so long as Tenant's
occupancy of the Premises continues, Tenant further covenants and agrees to
pay, as additional rent under this Lease, within ten (10) days of receipt
of a statement therefor, an annual charge, in advance, for the use and
operation of the sewer treatment facility which services the Premises. Such
annual charge shall be the same as Landlord is charged by the Suffolk
County Sewer Agency or such other entity as may own the sewer treatment
plant which services the Premises.
Tenant also covenants and agrees to pay, as additional rent, prior to the
date the same shall be due without penalty, any sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is assessed,
imposed, or a lien upon the Premises pursuant to law, order or regulation
made or issued in connection with the use, consumption, maintenance or
supply of water, water system or sewage connection or system.
4
Tenant shall be responsible for the charges set forth in this paragraph B
assessed during the term of this Lease, or any extension thereof, whether or
not the same are billed during the term. Tenant's obligations hereunder
shall survive the expiration or sooner termination of this Lease.
Tenant covenants and agrees that THE WASTE ENTERING THE SEWER PLANT SHALL BE
LIMITED ONLY TO NORMAL LAVATORY WATER AND WASTE BUT SHALL EXPRESSLY EXCLUDE
ALL INDUSTRIAL WATER AND WASTE. Tenant's failure to abide by this covenant
shall be a default under this Lease.
SECTION 4. TAXES:
(1) Tenant covenants and agrees to bear, pay and discharge any and all
increases in Real Estate Taxes (as hereafter defined) above Real
Estate Taxes for the Base Tax Year (as hereinafter defined) imposed,
assessed or levied against the Premises, both land and building,
during the term of this Lease, or any extension thereof, whether or
not billed prior to the end of the term of this Lease. Tenant's
obligation hereunder shall survive the expiration or sooner
termination of this Lease. For the purposes of this Lease, Tenant's
obligation to pay Real Estate Taxes shall only be to pay increases in
Real Estate Taxes above Real Estate Taxes in the Base Tax Year.
If at any time during the term of this Lease, or any extension
thereof, Real Estate Taxes increase above Real Estate Taxes in the
Base Tax Year, such increase in Real Estate Taxes shall be due and
Tenant shall pay such increase in Real Estate Taxes, as additional
rent, on a semiannual basis, forty-five (45) days prior to the date
Landlord is required to make said tax payment(s) to the taxing
authority, without penalty, or at Landlord's election, on a monthly
basis, along with each payment of Base Rent, in accordance with the
procedure set forth below.
Landlord shall estimate the increase in the annual Real Estate Taxes
above Real Estate Taxes in the Base Tax Year and one-twelfth (1/12th)
of the amount so estimated shall be due with each payment of Base
Rent. Within one hundred twenty days after the end of the fiscal year,
Landlord shall furnish Tenant with a statement which provides the
actual Real Estate Taxes for the prior fiscal year. Thereupon an
adjustment shall be made between Landlord and Tenant, with payment to
Landlord, as additional rent, of any amounts due Landlord but not yet
paid. Estimated payments for each succeeding year shall be based upon
the
5
prior year's payments. It is agreed that the intent of this paragraph
is that Tenant shall have made tax payments to Landlord totalling the
full amount due, prior to the date Real Estate Taxes are payable to
the taxing authority.
Real Estate Taxes for partial Lease Years shall be prorated.
Tenant's failure to make any payment of increases in Real Estate Taxes
above Real Estate Taxes for the Base Tax Year, as in this Lease
provided shall be a default under this Lease. In the event Tenant
fails to make the payment(s) as required above, Landlord shall be
entitled to interest, at the rate set forth in Section 16 hereof, on
all sums due, from the date payment was due, until payment in full to
Landlord, in addition to all other remedies available to Landlord for
nonpayment of Base Rent. Tenant shall also be responsible for the
payment of all interest, fines, late fees and penalties by reason of
said non-payment.
(2) "Real Estate Taxes" shall mean the sum of all taxes, real estate and
real property taxes, assessments, special assessments, impositions,
levies, including, but not limited to, town taxes, village taxes,
school taxes, county taxes, etc., whether general, special, ordinary
or extraordinary, foreseen or unforeseen, imposed, assessed or levied
against or upon the Premises, land and building, and any rights or
interests appurtenant to either, by Federal, State or local
governmental authority, or any other taxing authority having
jurisdiction thereover. Real Estate Taxes shall also include any taxes
which may be assessed, levied or imposed in lieu of, in substitution
for, or in addition or supplementary to such taxes. Real Estate Taxes
shall also include any taxes attributable to improvements of whatever
kind and to whom belonging, situated or installed in or upon the
Premises, whether or not affixed to the realty. If at any time during
the term of this Lease the methods of taxation prevailing at the
commencement of the term hereof shall be altered so that in lieu of,
as an addition to, or as a substitute for the whole or any part of the
taxes, assessments, levies, impositions, or charges now levied,
assessed or imposed on real estate and the improvements thereon, there
shall be levied, assessed, or imposed (i) a tax, assessment, levy,
imposition or charge wholly or partially as capital levy or otherwise
on the rents received therefrom, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the
Premises and imposed upon Landlord, or (iii) a license fee or charge
measured by the rents payable by Tenant to Landlord, then all such
taxes, assessments, levies, impositions or charges, or
6
the part thereof so measured or based, shall be deemed to be included
within the term "Real Estate Taxes" for the purposes hereof.
(3) Either party to this Lease shall promptly notify the other in writing
of any change in the assessed value of the Premises of which the
Landlord or Tenant is or becomes aware, in order to permit a timely
contest of such change. Tenant shall have the right to initiate and
prosecute, at its own cost and expense, including, but not limited to
counsel fees, in Landlord's name, proceedings to reduce assessments
for Real Estate Taxes. Prior to initiating any such proceeding, Tenant
shall give Landlord notice of its intention to initiate the same not
less than (a) thirty (30) days prior to initiation or (b) such number
of days (plus ten (10) days) as will permit the timely initiation of
such a proceeding, whichever is less. Following such notice and within
the notice period set forth in the preceding sentence, Landlord shall
notify Tenant in writing, of its election to initiate such proceeding
itself, or give its consent to Tenant to prosecute such proceeding in
the Landlord's name. Landlord shall have the right to initiate such
proceedings in the event Tenant elects not to initiate the same or
fails to timely notify Landlord. In the event Landlord elects to
initiate any proceeding to reduce assessments of Real Estate Taxes and
in the further event that Landlord receives any Real Estate Tax refund
or refunds as a result thereof, such refund shall be payable to
Landlord. Landlord shall pay over to Tenant any such Real Estate Tax
refunds, less counsel fees and/or other expenses relating to such
proceeding, to the extent that such refunds relate to Real Estate
Taxes theretofore paid by Tenant to Landlord, pursuant to this Section
4. In any event, Tenant agrees that it will not stipulate or settle
any proceeding initiated by it unless the terms of such stipulation or
settlement are approved by Landlord, said approval not to be
unreasonably withheld.
(4) For the purposes hereof, the period December 1, 1995 through November
30, 1996 shall be the Base Tax Year. Real Estate Taxes during the
period December 1, 1995 through November 30, 1996 are $37,141.92.
SECTION 5. NO WORK:
A. Tenant acknowledges and agrees that Landlord has not offered to do, and
shall not do or have any obligation to do, any work, alterations,
improvements, decorations, additions, repairs, changes, etc., at, or to the
Premises to make the same ready for Tenant's occupancy. Tenant further
acknowledges that, prior into entering into this Lease, Tenant has had a
full and
7
fair opportunity to inspect the Premises, or Tenant has expressly waived
the right to do so. Tenant hereby accepts the Premises in "as-is"
condition, except that on the date possession of the Premises is delivered
to Tenant the Premises will be vacant and broom clean and the air
conditioning system shall be in working order.
B. If Landlord is unable to give possession of the Premises on the date of
commencement of the term hereof, because of the holding-over or retention
of possession of any tenant, undertenant or occupants or if the Premises
has not been sufficiently completed to make the Premises ready for
occupancy or if Landlord has not completed any work required to be
performed by Landlord, or for any other reason, Landlord shall not be
subject to any liability for failure to give possession on said date and
the validity of the Lease shall not be impaired under such circumstances,
nor shall the same be construed in any wise to extend the term of this
Lease (except as may be agreed), but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Landlord's inability to
obtain possession or complete any work required) until after Landlord shall
have given Tenant notice that the Premises are substantially ready for
Tenant's occupancy. The provisions of this Section are intended to
constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law.
C. Improvements to be paid by Tenant: If, during the construction of the
Premises, Tenant wishes to substitute any materials or alter any work to be
done by Landlord, a "change-order" shall be issued by Landlord indicating
such change or substitution and the cost that will be incurred by Tenant by
reason thereof. Landlord shall be authorized to undertake such change or
substitution only if Tenant approves such "change-order" in writing. In
such event, the additional total cost as set forth on each "change-order"
shall be paid for in each case by Tenant one-half (1/2) upon execution of
the "change-order" and the balance in accordance with the progress of the
work set forth in the "change- order". In the event Tenant fails to make
the payments as in this paragraph provided Landlord shall be entitled to
all remedies available in the event of nonpayment of Base Rent, including a
late payment and administrative charge and interest as set forth in Section
16.
D. Landlord has heretofore delivered to Tenant a copy of the certificate of
occupancy for the Premises.
E. Landlord represents that, to the best of Landlord's knowledge: (i) the
Premises have not heretofore been used for the production or disposal of
toxic or hazardous substances as hereinafter defined; and (ii) there
presently exists at
8
the Premises no hazardous or toxic substances (as hereafter defined) in
violation of any law.
SECTION 6. DELIVERY OF POSSESSION:
A. Possession of the Premises shall be deemed delivered to Tenant on the date
which is the earlier to occur of: (i) May 1, 1996; and (ii) the date Tenant
occupies all or any part of the Premises.
B. On the commencement date of the term of this Lease, Landlord agrees that
the Premises shall be broom clean, the HVAC, plumbing, electrical,
sprinkler and other mechanical systems at the Premises shall be in working
order and the roof shall be free of leaks. Except as set forth herein,
Landlord makes no representations or warranties with respect to the
Premises and any agreements set forth in the preceding sentence shall not
survive Tenant's occupancy of the Premises. After Tenant occupies the
Premises, Tenant shall have no right to cancel this Lease, seek a
diminution of rent, ▇▇▇ for damages or assert any contractual, legal or
equitable remedy based either on a claim that Landlord failed to deliver
possession in accordance with the terms of this Lease or based on a claim
that the size, location, layout, dimensions or construction of the building
or service area(s) (if any), sidewalks, parking or other areas (if any), or
any other facilities to be furnished by Landlord, were not completed or
furnished in accordance with the terms of this Lease. Notwithstanding the
foregoing, if after Tenant occupies the Premises and during the term hereof
Landlord is in default under any of its Lease obligations, Tenant shall
have such rights at law or in equity to which it may be entitled except
that Tenant hereby waives any right to cancel or terminate this Lease or to
seek a diminution of rent unless such right is explicitly reserved to
Tenant under the terms of this Lease. Tenant's occupancy of the Premises
shall be deemed a certification to Landlord and the holder of any mortgage
to which this Lease is, or shall thereafter be, subject and subordinate,
that the Premises have been delivered to it in accordance with the terms of
this Lease and that possession thereof has been fully and completely
accepted by Tenant who is then in possession of the same, and that the term
of this Lease and the use of the Premises for business and the date for the
payment of rent hereunder have all theretofore commenced and that the
building, the parking area, and all other portions of the Premises have
been completed in accordance with the requirements and terms of this Lease,
and that there is not then any offset of any rental(s) nor any violation of
any of the Lease terms on the part of the Landlord. Notwithstanding the
immediately preceding sentence, Tenant's occupancy of the Premises shall
not be deemed a certification that there are no latent defects in the
9
Premises. However, any claim by Tenant that a latent defect exists must be
made within one (1) year of Tenant's occupancy of the Premises. In the
event of a claim timely made for a latent defect Tenant shall have no right
to cancel or otherwise terminate this Lease, or have any right to setoff or
deduct any amount from Base Rent or additional rent; Landlord agrees to
promptly, after receipt of notice from Tenant, to commence the correction
of the defect and diligently prosecute the same to completion. The
foregoing provisions shall be self-operative and no further instrument,
letter or certificate shall be required by Landlord or any such mortgagee
unless either Landlord or mortgagee shall deem same appropriate in which
event, in confirmation of the foregoing, Tenant shall, without cost to
Landlord, promptly execute, in writing, any instrument, letter and/or
certificate containing the foregoing and such other like provisions in
regard to the condition of the Premises, the building, the rental(s), term
and date of the use of the Premises for business as shall be reasonably
requested by Landlord and/or said mortgagee.
SECTION 7. TENANT'S USES:
Tenant covenants that it shall use the Premises subject to and in accordance
with all present and future rules, regulations, laws, ordinances, statutes,
directions and requirements of all governmental and quasi-governmental
authorities and the Fire Insurance Rating Organization and Board of Fire
Insurance Underwriters and insurance companies issuing policies for the
Premises, and any similar bodies, having jurisdiction thereof, and subject to
the restrictions contained in Exhibit "C" and "D" annexed hereto, and provided
the same complies with the certificate of occupancy for the Premises, solely for
manufacturing, warehousing and distribution of vitamins and other pharmaceutical
products and office use associated therewith, and for no other purpose. Tenant
may not conduct any dangerous, hazardous, noxious or offensive use. Without
limiting the foregoing, Tenant agrees that no part of the Premises will be used
for the treatment, storage, disposal, generation, refining, transporting,
handling, production, processing, burial, dispersal or placement of any
Hazardous Substance (as defined in Section 37), pollutants or contaminants, and
that Tenant shall not release or permit the release of any Hazardous Substance,
petroleum products, pollutants, or contaminants onto the Premises or unto the
subsurface thereof or onto any property whatsoever, including, without
limitation, surface water and ground waters unless in compliance with all
applicable law(s), permit(s), order(s) or other valid governmental approval(s).
Tenant shall first obtain all governmental permits and licenses as may be
required for Tenant's use and occupancy of the Premises, and Tenant at all times
shall promptly comply with all present and future laws, ordinances,
requirements, orders, directions, rules and regulations of the federal, state,
interstate, county, local and municipal governments and all other
10
governmental authorities, agencies or regulatory bodies having a claim or
jurisdiction over or affecting the Premises, or any part thereof, or the
activities of Tenant, and all of their respective departments, bureaus and
officials, and of the Board of Fire Underwriters, and all of the insurance
companies writing policies affecting the Premises or any part thereof, whether
such laws, ordinances, requirements, orders, directions, rules or regulations
relate to structural alterations, changes, additions, improvements,
replacements, restorations or repairs, either inside or outside, extraordinary
or ordinary, foreseen or unforeseen, or otherwise, to or in and about the
Premises, or any part thereof, or connected with the use, occupation and
enjoyment thereof, or to alterations, changes, additions, improvements,
replacements, restorations or repairs incident to or as a result of any use or
occupation thereof, or otherwise, or any obligation arising from any restriction
on title to the Premises, and whether the same are in force at the commencement
of the term or may in the future be passed, enacted or directed. Tenant shall
not do or permit anything to be done in or about the Premises, or bring or keep
anything in the Premises that will in any way increase the normal premium rates
or cause suspension or termination of the fire or other insurance upon the
building. Tenant will not perform any act or carry on any practices that may
injury the building or be a nuisance or menace to tenants of adjoining premises.
Tenant shall not permit open storage on the Premises detrimental to the
appearance of a garden-type industrial development; and shall require loading
and unloading and parking of cars for employees, customers and visitors, in
connection with Tenant's business to be done in the designated areas on the
premises and not on any street.
In connection with Tenant's proposed use of the Premises, upon request by
Landlord Tenant shall deliver to Landlord:
(i) a letter, on Tenant's business stationery, for the Town of Smithtown
Building Department, indicating the nature of Tenant's business and
the utilization of the Premises in square foot terms (for example: how
many square feet will be used for warehouse, plant and/or office
purposes). This letter shall be addressed to Landlord.
(ii) a letter on Tenant's business stationery, for the Suffolk County
Department of Health Services, responsive to the questions set forth
on the specimen letter attached hereto as Exhibit "E".
(iii) a completed application (on the form submitted by Landlord) to the
Long Island Lighting Company for service to the Premises.
SECTION 8. INSURANCE:
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Throughout the term of this Lease and any extensions and renewals thereof,
Tenant, at its own cost and expense, shall:
A. Provided and keep in force a comprehensive policy of liability
insurance in the name of and for the benefit of Tenant, Landlord and
any designee(s) of Landlord against any liability for injury to
person(s) and/or property and death of any person(s) occurring in, at,
on, or about the Premises, or any appurtenances thereto. Each such
policy is to be written by one or more responsible insurance companies
satisfactory to Landlord, licensed to do business in the State of New
York, with a Best's rating of A, or greater, and a financial size
category of X, or greater, and the limits of liability thereunder
shall not be less than $1,000,000 combined single limit bodily injury,
death and/or property damage per occurrence, and a $2,000,000
aggregate limit and a $4,000,000 umbrella liability policy, or a
combined single limit of $5,000,000 per occurrence for bodily injury,
death and/or property damage, and against claims arising from
contractual obligations.
B. (1) Keep the building and all other buildings and improvements and
all furnishings and equipment on, at, in or appurtenant to the
Premises at the commencement of the term, and/or thereafter
erected thereon or therein (including all alterations,
rebuildings, replacements, changes, additions and improvements)
insured in an amount equal to the full replacement cost thereof
against loss or damage from all risk perils and insurable risks,
including fire, casualty (including rental income coverage) and
all available additional extended coverage, including damage by
lightning, hail, explosion, windstorm, tornado, cyclone, riot,
disorder or civil commotion, smoke damage, vandalism, malicious
mischief (when obtainable and if not included in such extended
coverage).
(2) Provide and keep in force business interruption insurance,
contingent business interruption insurance, extra expense and
contingent extra expense insurance, in amount not less than the
annual base rental plus the annual estimated Real Estate Taxes
and insurance premiums.
(3) If a sprinkler system shall be located in the Building, provide
and keep in force sprinkler leakage insurance. In addition,
Tenant shall obtain, at its sole cost and expense, a sprinkler
supervisory and alarm service contract for the sprinkler system
at the Premises.
(4) Provide and keep in force insurance coverage on all plate and
other glass in the building. Notwithstanding
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the foregoing, Tenant may self insure for plate glass and be
responsible for the replacement of all glass at the Premises at
Tenant's sole cost and expense.
(5) Provide and keep in force such other insurance covering such
risks and in such amounts as may from time to time be reasonably
required by Landlord or any mortgagee against any other insurable
hazards as Landlord can show at the time are commonly insured
against in cases of premises similarly situated and/or such other
insurance and in such amount and form as may from time to time be
required by the holder of any mortgage(s) to which this Lease is
subject and/or subordinate.
(6) Tenant shall maintain insurance for the full replacement value of
its own contents, inventory and trade fixtures.
C. Each party hereby releases the other party (which term as used in this
subdivision includes the employees, agents, officers and directors of
the other party) from all liability, whether for negligence or
otherwise, in connection with loss covered by any insurance policy
which the releasor carries with respect to the Premises or any
interest or property therein or thereon (whether or not such insurance
is required to be carried under this Lease), but only to the extent
that such loss is collected under said insurance policies. Such
release is also conditioned upon the inclusion in the policy or
policies of a provision whereby any such release shall not adversely
affect said policies or prejudice any right of the releasor to recover
thereunder. Each party agrees that its insurance policies, aforesaid,
will include such a provision, if obtainable. If the inclusion of such
provision requires an additional premium, the party for whose benefit
the provision is obtained shall, on demand, pay such extra premium to
the party carrying the insurance.
D. Unless otherwise requested by Landlord all insurance provided by
Tenant under this Section 8, except Tenant's contents and inventory
insurance, shall be carried in favor of Landlord (including the
officers, directors and stockholders of any corporation which is the
Landlord and the partners and spouses of any partnership which is the
Landlord) and the holder of any mortgage(s) affecting the Premises as
additional named insured and loss payee, as their respective interests
may appear. Such policies shall be in companies licensed and admitted
to do business in the State of New York, as Landlord and/or any
mortgagee shall approve, with a Best's Rating of A or greater, and a
financial size category of 10, or greater, and in such policies shall
provide that proceeds shall be payable to Landlord and, at Landlord's
request, any such mortgagee as
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their respective interests may appear. Landlord acknowledges that
Tenant's insurance policies shall initially be written by Chubb
Insurance Company and, as of the date hereof, Chubb Insurance Company
is an acceptable insurance company, whether or not Chubb Insurance
Company currently maintains the Best rating required by this Lease. At
such later date as the Best Rating for Chubb Insurance Company shall
be adversely affected or should Tenant change its insurance carrier,
the rating requirements set forth above must be satisfied. Tenant
shall not carry separate insurance, concurrent in coverage and
contributing in the event of loss with any insurance required to be
furnished by Tenant under the provisions of this Section 8 if the
effect of such insurance would be to reduce the protection or the
payment to be made under said insurance required to be furnished by
Tenant, unless Landlord and any mortgagee as aforesaid are included as
insured with loss payable as hereinabove provided. Tenant shall
promptly notify Landlord of the issuance of any such separate
insurance and shall cause such policies to be delivered to Landlord,
as hereinafter provided.
E. With respect to any policies of insurance provided by Tenant under any
provision of this Section 8, Tenant shall deliver to Landlord and/or
any designee of Landlord, prior to occupancy of the Premises by
Tenant, or at least twenty (20) days prior to the time such insurance
is first required to be carried by Tenant, and thereafter at least
twenty (20) days prior to the expiration of any such policy, either a
duplicate original of such policy or a certificate of all polices
procured by Tenant in compliance with its obligations hereunder
together with evidence of payment therefor and including an
endorsement which states that such insurance may not be cancelled
except upon thirty (30) days written notice to Landlord and/or
designee of Landlord. At least twenty (20) days prior to the
expiration of each policy, Tenant shall procure renewal insurance and
within such period shall deliver to Landlord and/or any designee of
Landlord the original renewal policy.
F. Property Loss or Damage and Indemnity: Tenant shall forever indemnify
and save Landlord harmless from and against (i) any and all liability,
loss, damage, cost and expense, including counsel fees, arising from
any injury to person or property of third persons occurring during the
term of this Lease wholly or in part by reason of any act or omission
of Tenant or of its employees, guests, invitees, agents, assigns or
undertenants; and (ii) any other matter or thing arising or growing
out of the occupation of the Premises by Tenant; and, at Landlord's
election, Tenant shall at its cost and expense defend any
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suit or proceeding instituted against Landlord by reason of any such
injury or alleged injury to person or property or by reason of any
other such matter or thing. Landlord shall not be liable for any loss
or damage which may be sustained by Tenant or any other person from
any act or omission on the part of the Landlord or of any other tenant
or agent or employee of any tenant or of Landlord unless caused by the
negligence of Landlord, its agents or employees.
G. Tenant shall pay all premiums and charges for all such policies, and
if Tenant shall fail to make any such payment when due, or to carry
any such policy, Landlord, at its option, may but shall not be
obligated to, make such payment or carry such policy, and the amounts
paid by Landlord, with interest thereon from the date of payment,
shall become due and payable by Tenant as additional rent with the
next succeeding installment of Base Rent. Payment by Landlord of any
such premiums or the carrying by Landlord of any such policies shall
not be deemed to waive or release the default of Tenant with respect
thereto, or the right of Landlord to take such action as may be
permissible hereunder as in the case of default in the payment of Base
Rent.
H. Tenant shall not violate or permit to be violated, any of the
conditions or provisions of any such policy, and Tenant shall perform
and satisfy the requirements of the companies writing such policies
that at all times companies licensed by the State of New York
satisfactory to Landlord or any mortgagee shall be willing to write
and/or continue such insurance.
I. Tenant and Landlord shall cooperate in connection with the collection
of any insurance monies that may be due in the event of a loss and
Tenant shall execute and deliver to Landlord such proofs of loss and
other instruments which may be required for the purpose of obtaining
the recovery of any insurance monies.
J. Tenant agrees that during the term of the Lease, or any extension
thereof, the limits of the insurance required by this Section shall be
increased if necessary to afford Landlord the same protection as
provided to Landlord at the commencement of the term of this Lease. In
no event shall the limits of insurance be reduced below what they were
at the commencement of the term.
SECTION 9. DESTRUCTION:
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A. If during the term of this Lease, or any extension thereof, any portion of
the Premises or any building, structure or improvement thereof, thereon or
therein, or appurtenant thereto, is damaged or destroyed by fire or other
casualty as a result of a peril insured against pursuant to this Lease,
Tenant shall forthwith give notice thereof to Landlord and then Landlord
shall thereafter commence promptly, after adjustments of insurance, and
building weather permitting, at its own cost, to repair, replace and
rebuild the Premises, but to the extent only of proceeds received by
Landlord from insurance and to the extent only of Landlord's work prior to
occupancy of the Premises by Tenant. In no event shall Landlord be
obligated to expend a greater sum for the restoration of the Premises than
the sum Landlord received as insurance proceeds due to said damage or
destruction. Notwithstanding anything to the contrary, Landlord will
commence making repairs immediately following such damage or destruction
provided that Tenant advances the necessary funds to Landlord to cover the
cost thereof. If Tenant, after obtaining Landlord's permission, makes the
necessary repairs, Landlord will make reimbursement to Tenant of the actual
cost thereof, not to exceed the insurance proceeds received by Landlord.
Nothing in this paragraph shall require Landlord to restore, replace or
repair any inventory, furniture, chattels, signs, contents, fixtures,
(including trade fixtures) or personal property of Tenant located, on, in,
or about the Premises, or which serve the Premises or rebuild the Premises
in the condition and state that existed before any such damage or
destruction.
B. Notwithstanding anything to the contrary contained in this Lease, in the
event of any destruction of the building to the extent of more than forty
(40%) percent of the cost of total replacement thereof, at a time when less
than three (3) years remain in the term hereof, Landlord may elect to
terminate this lease on thirty (30) days notice to Tenant, given at any
time within sixty (60) days after such damage or destruction, and in such
case all proceeds shall be paid and belong to Landlord and upon such
termination neither party shall be thereafter under any obligation to the
other for any liability under this Lease which shall thereafter accrue.
C. Except to the extent Landlord receives rent insurance as hereinabove
provided, neither the rent payable by Tenant nor any of Tenant's other
obligations under the other provisions of this Lease shall be affected by
any damage to or destruction of the Premises, and Tenant expressly waives
such additional rights as it might otherwise have under any law or statute
by reason of damage or destruction of the Premises by fire or any other
cause.
D. Landlord agrees that any repairs Landlord is required to make pursuant to
paragraph A of this Section 9 shall be
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substantially complete not later than six (6) months subsequent to the date
Landlord receives the insurance proceeds, unless Landlord is delayed by
Tenant or by reason of forces beyond Landlord's reasonable control, in
which case such six (6) month period shall be extended for a period equal
to the period through in which Landlord is delayed by Tenant or forces
beyond Landlord's reasonable control. In the event Landlord has not
substantially completed the repairs within six (6) months after receipt of
the insurance proceeds, or such later date as may be extended by Tenant's
acts, or forces beyond Landlord's reasonable control, Tenant may cancel
this Lease upon not less than thirty (30) days notice to Landlord. However,
in the event the repairs are substantially complete prior to the date set
forth in Tenant's notice, Tenant's notice shall be ineffective to cancel
this Lease, and this Lease shall remain in full force and effect. In the
event this Lease is cancelled pursuant to this paragraph, this Lease shall
terminate on the date set forth in Tenant's notice as if the date were the
date set forth in the Lease for the expiration of the term hereof and
Landlord shall have no obligation or liability to Tenant hereunder.
SECTION 10. REPAIRS, MAINTENANCE AND ALTERATIONS:
A. Tenant shall at all times, during the term, or any extension term, and at
its own cost and expense put, keep, repair, restore, replace and maintain
in thorough repair and good, safe, clean and substantial order and
condition, the Premises, all buildings and other portions thereof, all
glass therein, all equipment therein, and all appurtenances thereto, both
inside and outside, nonstructural, extraordinary and ordinary, foreseen or
unforeseen, at the commencement of the term or thereafter erected thereon
or therein and howsoever the necessity or desirability thereof may occur,
normal wear, tear and obsolescence excepted. However, Landlord shall, at
all times during the term and at its own cost and expense, replace or make
all "Structural Repairs" as described in Section 3(A)(4) hereof, except
those necessitated by the negligence, gross negligence or willful conduct
of Tenant, its officers, employees, agents, servants and the like. Tenant
shall use all reasonable precaution to prevent waste, damage or injury to
the Premises, or any part thereof. Tenant shall also, at its own cost and
expense, put, keep, repair, restore, replace and maintain in thorough
repair and good order and safe condition and free from dirt, snow, ice,
rubbish and other obstructions or encumbrances, any sidewalks, parking
fields and curbs which are part of, in front of, and of or adjacent to the
Premises, normal wear, tear and obsolescence excepted.
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Tenant shall refrain from committing, or suffering any waste upon the
Premises, or any nuisance, or any other act or thing which may disturb the
quiet enjoyment of any other tenant in the Heartland Executive Park. Tenant
shall make all ordinary repairs, replacements and restorations, as needed
(except as provided in Section 9A), including without limitation by their
inclusion, interior and exterior repainting, replacement of glass injured
or broken; and of floor and wall covering worn or damaged; keeping roofs
and exterior windows and doors water tight, and all plumbing, lighting,
heating, air-conditioning, and other utility systems in good operating
condition. Tenant shall keep the Premises properly painted and decorated;
Tenant shall paint all exterior trim and all exposed metal beams and
girders as reasonably required. Tenant shall notify Landlord in writing for
Landlord's written approval should any penetrations or additional loads to
the roof be contemplated, which approval may be withheld for any reason
notwithstanding anything in this Lease.
Tenant shall maintain as presented to Tenant all landscaped and planted
areas including but not limited to lawns, trees, and shrubs, on the
Premises, and keep in good repair all parking and loading areas in use,
clean and free of snow and ice, and the exterior of the Premises neat and
clean.
Tenant shall indemnify and save harmless Landlord against and from all
costs, expenses, liabilities, losses, damages, suits, fines, penalties,
claims and demands, including reasonable counsel fees, because of Tenant's
failure to comply with the foregoing and Tenant shall not call upon
Landlord for any disbursement or outlay whatsoever in connection therewith
and hereby expressly releases and discharges Landlord of and from any
liability therefor.
B. Except as otherwise specifically set forth in this Lease, Tenant shall not
make any alterations, improvements, and/or additions to the Premises or any
part thereof without Landlord's prior written consent.
C. If any repair or alteration which are not Structural Repairs and which are
required or permitted to be performed by Tenant under any provision of this
Lease shall cost in excess of three thousand five hundred and 00/100
($3,500.00) dollars during the Lease term, same shall not be commenced
until Tenant, provides at least fifteen (15) days prior written notice of
such repairs or alterations to Landlord (except in the case of an
emergency, where only prior notice as is reasonable under the circumstances
is required, but Tenant shall immediately notify Landlord thereafter if no
prior notice is given); provided, however, Tenant shall remove any
18
such repairs or alterations upon Landlord's written request promptly after
termination of this Lease.
SECTION 11. COVENANT AGAINST LIEN:
Tenant shall not do any act, or make any contract which would create or be the
foundation for any lien or other encumbrance upon any interest of Landlord in
any portion of the Premises. If, because of any act or omission (or alleged act
or omission) of Tenant, any mechanic's or other lien, charge or order for the
payment of money or other encumbrance shall be filed against Landlord and/or any
portion of the Premises (whether or not such lien, charge or encumbrance is
valid or enforceable as such), Tenant shall, at its own cost and expense, cause
same to be discharged of record or bonded within thirty (30) days after notice
to Tenant of the filing thereof; and Tenant shall indemnify and save harmless
Landlord against and from all costs, liabilities, suits, penalties, claims and
demands, including reasonable counsel fees resulting therefrom. If Tenant fails
to comply with the foregoing provisions, Landlord shall have the option of
discharging or bonding any such lien, charge, order or encumbrance from any
funds of Tenant in Landlord's possession, and Tenant agrees to reimburse
Landlord for all costs, expenses, reasonable attorneys fees, and other sums of
money in connection therewith (as additional rental) with interest thereon, at
the rate specified in Section 16, promptly upon demand. All materialmen,
contractors, artisans, mechanics, laborers and any other persons now or
hereafter contracted with Tenant for the furnishing of any labor, services,
materials, supplies or equipment with respect to any portion of the Premises at
any time from the date hereof until the end of the term of this Lease, or any
extension thereof, are hereby charged with notice that they must look
exclusively to Tenant to obtain payment for same. Nothing in this Lease
contained shall be construed in any way as constituting the consent or request
of the Landlord, expressed or implied, to any contractor, subcontractor, laborer
or materialmen for the performance of any labor or the furnishing of any
materials for any improvement, alteration or repair of the Premises, nor as
giving any right or authority to contract for the rendering of any services or
the furnishing of any materials that would give rise to the filing of any
mechanic's liens against the Premises.
SECTION 12. CONDEMNATION:
A. If the whole of the Premises shall be taken for any public or quasi-public
use under any statute or by right of eminent domain, or by private purchase
in lieu thereof, then this Lease shall automatically terminate as of the
date that title
19
shall be taken. If fifteen (15%) percent or more of the building shall be
so taken, then Landlord and Tenant shall each have the right to terminate
this Lease on thirty (30) days written notice to the other given within
sixty (60) days after the date of such taking.
B. If any part of the building shall be so taken and this Lease shall not
terminate or be terminated under the provisions of Paragraph "A" hereof,
then the Base Rent shall be equitably apportioned according to the building
floor space so taken and Landlord shall make all necessary repairs or
alterations to the Premises so as to constitute that portion of the
building and other improvements on the Premises not taken as a complete
architectural unit and/or as nearly similar in character as practicable to
what they were before the taking.
C. All compensation awarded or paid upon such a total or partial taking of the
Premises shall belong to and be the property of Landlord without any
participation by Tenant; provided, however, that nothing contained herein
shall be construed to preclude Tenant from prosecuting any claim, directly
against the condemning authority in such condemnation proceedings for loss
of business, and/or depreciation to, damage to and/or cost of removal of,
and/or for the value of stock and/or trade fixtures, furniture and other
personal property belonging to Tenant; provided, however, that no such
claim shall diminish or otherwise adversely affect Landlord's award nor any
award(s) of the holder(s) of any and all mortgages affecting the Premises.
In no event shall Tenant make any claim for the value of the unexpired term
of the Lease.
SECTION 13. ACCESS TO PREMISES:
A. Landlord and its designees shall have the right, but shall not be obligated
to, without notice, to enter upon the Premises at all reasonable hours (but
in emergencies at all times without notice and without being accompanied by
a representative of Tenant): (1) to inspect the same, (2) to make repairs,
additions or alterations to the Premises or the building or any property
owned or controlled by Landlord, and (3) for any lawful purpose. Landlord
agrees that a representative of Tenant may accompany Landlord and, if
Tenant desires to accompany Landlord, Tenant agrees that a representative
of Tenant will be available to accompany Landlord or else Landlord may
enter unaccompanied. If Landlord makes or causes any repairs to made
pursuant to Section 23 hereof, Landlord shall not be responsible to Tenant
for any loss or damage that may accrue to its stock or business by reason
thereof. During its entry, Landlord
20
agrees to use reasonable efforts to minimize interference with the business
operation of Tenant at the Premises.
B. If, at reasonable hours, admission to the Premises for the purpose
aforesaid cannot be obtained, or if at any time an entry shall be deemed
necessary for the inspection or protection of the property or for making
any repairs, whether for the benefit of Tenant or not, Landlord or
Landlord's agents or representatives may enter the Premises by force or
otherwise, without rendering Landlord or Landlord's agent or representative
liable to any claim or cause of action for damages by reason thereof, and
accomplish such purpose. The provisions contained in this Section 13 are
not to be construed as an increase of Landlord's obligations under this
Lease; it being expressly agreed that the right and authority hereby
reserved does not impose nor does Landlord assume by reason thereof, any
responsibility or liability whatsoever for the repair, care or supervision
of the Premises, or any building, equipment or appurtenance on the
Premises.
C. For a period commencing six (6) months prior to the end of the term, or any
extension thereof, Landlord may have reasonable access to the Premises for
the purpose of exhibiting the same to prospective tenants and to post any
"To Lease" signs upon the Premises.
SECTION 14. ASSIGNMENT AND SUBLETTING:
A. Without the Landlord's prior written consent, and subject to this Section
14, neither the Tenant nor the Tenant's legal representatives or successors
in interest by operation of law or otherwise (except as set forth in
Paragraph "C" of this Section 14) shall directly or indirectly
assign,mortgage, pledge, transfer, hypothecate or encumber this Lease.
Without the Landlord's prior written consent, and subject to this Section
14, neither Tenant nor Tenant's legal representatives shall directly or
indirectly sublet the Premises, in whole or in part, or permit the same or
any portion thereof to be used or occupied by others except Tenant may
sublet the whole Premises or permit the whole Premises to be used or
occupied by others subject to Paragraph "B" and Paragraph "C" of this
Section 14. Landlord hereby consents to the subletting of 10,000 square
feet of the Premises to PDK, Labs, Inc., a true and complete copy of which
is attached hereto as Exhibit "_". In addition, subject to obtaining
Landlord's prior consent, Tenant shall not have the right to sublet the
Premises more than once during the term of this Lease.
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B. (1) In the event of a subletting pursuant to this Section 14, and the
rental income under such sublease exceeds the rental payable by Tenant
under this Lease, such rent differential shall be for the account of
the Landlord, and Tenant covenants to pay Landlord such differential
in equal monthly installments, together with the rental payable under
this Lease. The aforesaid payments shall be collectible as additional
rent.
(2) Anything to the contrary notwithstanding, should Tenant desire to
assign this Lease or sublet the entire Premises it shall give written
notice of its intention to do so to Landlord forty (40) days or more
before the effective date of such proposed subletting or assignment,
which notice shall include fully executed copies of all proposed
documentation in connection with the proposed assignment or
subletting. Landlord may, at any time within thirty (30) days after
the receipt of such notice and documentation from Tenant, cancel this
Lease by giving Tenant written notice of its intention to do so, in
which event such cancellation shall become effective twenty (20) days
after its receipt by Tenant, with the same force and effect as if such
cancellation date were the date originally set forth as the expiration
date of the term of this Lease. In the event Landlord cancels this
Lease Landlord may assign this Lease or sublet the Premises to
Tenant's proposed assignee or sublessee without any liability
whatsoever to Tenant.
C. Subparagraphs "A" and "B" of this Section 14 to the contrary
notwithstanding, Tenant shall have the right to assign this Lease or sublet
the entire Premises without Landlord's consent, provided that the assignee
or sublessee is an entity which is an affiliate or wholly owned subsidiary
of Tenant which may, as a result of a reorganization, merger or
consolidation succeed to the entire business carried on by Tenant at such
time, provided the following conditions are strictly and fully complied
with:
(1) The assignment must be, respectively, of all of Tenant's leasehold
interest and of the entire Premises and shall also transfer to the
assignee all of the Tenant's rights in and interest under this Lease
including the security deposited hereunder.
(2) At the time of such assignment or subletting this Lease must be in
full force and effect without any breach or default thereunder on the
part of Tenant, continuing beyond the period provided for curing same.
22
(3) The assignment or subletting must be solely for the same purposes and
uses permitted by this Lease.
(4) The assignee (or sublessee, if sublease is for a term less than the
then remaining term of this Lease) shall assume, by written recordable
instrument, in form and content satisfactory to Landlord, the due
performance of all Tenant's obligations under the Lease including any
accrued obligations at the time of the assignment or subletting.
(5) A copy of the assignment or sublease and the original assumption
agreement (both in form and content satisfactory to Landlord) fully
executed and acknowledged by the assignee together (if a corporation)
with a copy of a properly executed corporate resolution authorizing
such assumption agreement, shall be delivered to Landlord within ten
(10) days from the effective date of such assignment or subletting.
(6) Such assignment and/or subletting shall be upon and subject to all the
provisions, terms, covenants and conditions of this Lease and Tenant
(and any assignee(s) and sublease(s)) shall continue to be and remain
liable thereunder.
(7) Tenant shall reimburse Landlord for Landlord's reasonable attorney's
fees for examination of and/or preparation of any documents in
connection with such assignment.
(8) Subject to the foregoing, Tenant may not effect a transaction the
result of which is that this Lease becomes an asset of a person, firm
or corporation having no bona fide and ongoing business relationship
to Tenant.
D. The transfer of more than forty (40%) percent of the voting stock of any
corporate tenant, whether by operation of law, or otherwise, or whether in
a single transaction or a series of transactions, to other than members of
the immediate family of the present shareholders, shall be deemed an
assignment within the meaning of this Section 14 of the Lease and shall
require Landlord's prior written consent, provided, however, the foregoing
limitation shall not apply to any corporate tenant whose shares are
publicly traded on a nationally recognized exchange.
E. Any consent by Landlord to any act of assignment or subletting shall be
held to apply only to the specific transaction thereby authorized. Such
consent shall not be construed as a waiver of the duty of Tenant, or the
legal representatives or assigns of Tenant, to obtain from Landlord consent
to any other or subsequent assignment or subletting, or as modifying or
23
limiting the rights of Landlord under the foregoing covenant by Tenant not
to assign or sublet without such consent.
F. If Landlord does not deny Tenant's request for an assignment or sublet,
such consent shall be given subject to and provided Tenant strictly
complies with items (1) - (8) of subsection "C" of this Section 14.
SECTION 15. TENANT'S ADDITIONAL AGREEMENT:
A. Affirmative Obligations: Tenant agrees, at its own cost and expense, to:
(1) Keep Premises Clean: keep the Premises (including without limitation,
exterior and interior portions of all windows, doors and all other
glass) in a neat and clean condition;
(2) Keep Premises Attractive: maintain the Premises and Tenant's personal
property therein as an attractive area in accordance with the general
character of the Premises;
(3) Comply With Laws: promptly comply with all present and future laws,
ordinances, rules, directions and regulations of governmental or
quasi-governmental authorities (including zoning laws and building
codes) and Insurance Underwriters and insurance companies writing
policies for the Premises, and any other organization exercising
similar functions, affecting the Premises, whether same require
changes or alterations to the Premises of a structural or
nonstructural, foreseen or unforeseen, exterior or interior, or
ordinary or extraordinary, nature or otherwise;
(4) Labor Regulations: take no action which would violate Landlord's union
contracts, if any, affecting the Premises;
(5) Garbage: handle and dispose of all rubbish, garbage and waste from
Tenant's operations in accordance with all rules and regulations
established by Landlord and not permit the accumulation (unless in
concealed metal containers), or burning, or any rubbish or garbage in,
on or about any part of the Premises.
For the first three (3) months of this Lease only, the Landlord shall
contract for the disposal of all nonhazardous and non-toxic rubbish
and garbage generated from Tenant's normal business operation at the
Premises, at no cost to Tenant. Thereafter, Tenant shall be fully
24
responsible, at its cost and expense, for removal of all rubbish and
garbage at the Premises.
(6) Outside Areas: maintain and keep in a clean and presentable manner all
lawns, shrubbery and plant areas including weeding and cutting of
lawns at least once a week between April 15 and November 15 in each
year of the term.
B. Negative Obligations: Tenant agrees that it shall not at any time without
first obtaining Landlord's consent:
(1) Not Change Exterior Architecture: change (whether by alteration,
replacement, rebuilding or otherwise) the exterior color and/or
architectural treatment of the building or any part thereof;
(2) Not Use Sidewalks: use, or permit to be used, the sidewalk adjacent
to, or any other space outside the building for display, sale or any
other similar undertaking;
(3) No Loud Speakers: use or permit to be used, any advertising medium
and/or loud speaker, and/or sound amplifier, and/or radio or
television broadcast which may be heard outside the building;
(4) Not Misuse Plumbing Facilities: use the plumbing facilities for any
purpose other than for which they were constructed, or dispose of any
garbage or other foreign substance therein, whether through the
utilization of so- called "disposal" or similar units, or otherwise;
(5) No Liens: subject any fixtures, furnishings or equipment in or on the
Premises which are affixed to the realty, to any mortgages, liens,
conditional sales agreement, security interests or encumbrances;
(6) Not Damage the Premises: perform any act or carry on any practice
which may damage, mar or deface the Premises;
(7) Not Exceed Floor Loads: place a load on any floor of the building
exceeding the floor load per square foot which such floor was designed
to carry, or install, operate or maintain therein any heavy item or
equipment except in such manner as to achieve a proper distribution of
weight;
(8) Not Exceed Electrical Load: install, operate or maintain in the
Premises any electrical equipment which will overload the electrical
system therein, or any part thereof, beyond its reasonable capacity
for proper and
25
safe operation as reasonably determined by Landlord in light of the
overall system and requirements thereof, or which does not bear
underwriters' approval;
(9) Not Permit Odors, Etc.: suffer, allow or permit any offensive or
obnoxious vibration, noise, odor or other undesirable effect to
emanate from the building and/or Premises;
(10) Not Cause Injury, Etc.: use or occupy the building or do or permit
anything to be done thereon in any manner which will cause structural
injury to the same, or which would constitute a public or private
nuisance or which will violate any present or future laws, rules,
regulations, ordinances, directions or requirements (ordinary or
extraordinary, foreseen or unforeseen) of the federal, state, county,
local or municipal governments, or of any department, subdivisions,
bureaus or offices thereof, or of any other governmental, public or
quasi-public authorities, including insurance companies writing
policies for the Premises, now existing or hereafter created, having
jurisdiction in the Premises.
SECTION 16. INTEREST RATE:
A. Whenever this Lease refers to "interest" or Interest Rate, same shall be
computed at a rate equal to the Prime Rate (as hereafter defined) plus four
(4%) percent. If, however, payment of interest at such rate by Tenant (or
by the Tenant then in possession having succeeded to the Tenant's interest
in accordance with the terms of this Lease) should be unlawful, i.e.,
violative of the usury statutes or otherwise, then "interest" shall, as
against such party, be computed at the maximum lawful rate payable by such
party, and any payments received which may be in excess of the legal rate
shall be applied towards a reduction of the principal amount owing so as to
reduce the interest payments to a rate not violative of the usury laws.
B. "Prime Rate" shall mean the rate being charged at the time in question by
the Chase Manhattan Bank (National Association) for short term (90 day)
unsecured loans made to its preferred customers.
SECTION 17. EASEMENT FOR PIPES:
Tenant shall permit Landlord or its designees to erect, use, maintain and
repair pipes, cables, plumbing, vents and wires, in, to and through the
building and/or Premises, as and to the
26
extent that Landlord may now or hereafter deem to be necessary or
appropriate for the proper operation and maintenance of the building or any
other portion of the Premises. All such work shall be done, so far as
practicable, in such manner as to avoid unreasonable interference with
Tenant's use of the Premises.
SECTION 18. UTILITIES:
Landlord represents that gas, water and electric service and sewer lines
are presently available at the Premises. Landlord shall not be required to
furnish any utilities, facilities or services to the Premises, including
but not limited to management and janitorial services, heat, water, sewer,
power, telephone or other communication service, gas or electric, and shall
not be liable for any failure of supply of any such utility service. Tenant
shall pay promptly, as and when the same become due and payable, all water
rents, rates and charges, all sewer rents and all charges for electricity,
gas, heat, steam, hot and/or chilled water and other utilities directly to
the utility company and shall indemnify Landlord against any liability or
damages on such account.
During the full term of the Lease, Tenant shall have the full
responsibility of repairing, replacing, restoring and maintaining the
heating and air conditioning systems, including maintaining a full service
maintenance contract, in form and content satisfactory to Landlord, for the
life of the Lease, covering the replacement of all parts, and the cost of
labor and preventative maintenance to be done on at least a quarterly basis
for the heating and air conditioning system. Landlord hereby assigns to
Tenant all assignable warranties, if any, which may exist with regard to
the mechanical systems at, and the roof for, the Premises.
SECTION 19. SIGNS:
A. Tenant shall not, without Landlord's prior written consent, place or
install any sign on the roof nor on any exterior wall of the building
(including, without limitation, both the interior and exterior surfaces of
windows and doors) nor on any part of the land except that Tenant may
install and maintain, at its own cost and expense, including payments for
permits and the sign, a single, flat faced sign on the front of the
building subject to the approval of Landlord as to dimensions, content,
material, location and design. The sign shall be substantially similar to
the type of sign presently permitted in the Heartland Executive Park.
Tenant agrees that
27
the sign shall be union made and shall not be installed on the Premises or
the building until all approvals and permits are first obtained and copies
thereof delivered to Landlord together with evidence of payment for any
fees pertaining to Tenant's sign.
In the event Landlord or Landlord's representative shall deem it necessary
to remove such sign in order to make any repairs, alterations or
improvements in and upon the Premises, or the building, Landlord shall have
the right to do so, provided the same be removed and replaced at Landlord's
expense, whenever the said repairs, alterations or improvements shall be
completed. At the expiration or sooner termination of this Lease, unless
notified to the contrary by Landlord, Tenant shall, at its sole cost and
expense, remove its sign from the building and repair, replace and restore
the Premises to the condition existing prior to the placement of the sign.
B. As used in this Section 19, the word "sign" shall be construed to include
any placard, light or other advertising symbol or object irrespective of
whether same be temporary or permanent. The single identification sign
erected on the front of the building shall not project above the bottom of
the building parapet wall. Such type signs as "Help Wanted", "For Sale",
"To Let" or any advertising signs are specifically excluded from being
displayed on any part of the Premises or its adjacent land on a temporary
or permanent basis.
SECTION 20: EXTENSION TERM(S)
A. Provided Tenant is not in default under any of the material terms and
conditions of this Lease beyond the applicable cure period, if any, whether
at the time of the required exercise of the option to extend the term or
prior to the commencement of the First Extension Term (as hereafter
defined) Tenant shall have the option to extend the term of this Lease for
an additional two (2) years ("First Extension Term"), on the following
terms and conditions:
(i) Tenant shall notify Landlord of its intention to extend the term of
this Lease for an additional period of two (2) years. Said notice
shall be in writing and must be sent by Tenant in accordance with the
notice provisions of this Lease not less than six (6) months prior to
the expiration of the current term of this Lease, that is prior to
April 15, 1998. Time shall be of the essence with regard to this
notice requirement.
Tenant's notice to Landlord shall be irrevocable, and, in the event of
such notice, Tenant shall be liable for the rent, as determined below,
during the First Extension Term.
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Notwithstanding anything to the contrary contained herein, if at any
time this Lease is terminated prior to the expiration of the initial
term hereof, then, without the requirement of any notice, Tenant's
option to extend the term as set forth herein is likewise terminated.
(ii) For the period October 15, 1998 through October 14, 1999, Base Rent
shall be two hundred seventy thousand and 00/100 ($270,000.00)
Dollars, payable twenty-two thousand five hundred and 00/100
($22,500.00) dollars monthly.
(iii) For the period October 15, 1999 through October 14, 2000, Base Rent
shall be two hundred seventy thousand and 00/100 ($270,000.00)
Dollars, payable twenty-two thousand five hundred and 00/100
($22,500.00) dollars monthly.
(iv) The limits of insurance to be carried by Tenant pursuant to Section 8
of the Lease, shall be increased upward (not downward) by the
percentage change in the Consumer Price Index (for any region which
contains Long Island, New York,) between the commencement date of the
term of this Lease and the commencement date of the First Extension
Term.
(v) The same terms and conditions as set forth in the Lease (except for
rental and insurance which shall be as set forth in paragraphs A (ii),
(iii) and (iv)) shall remain binding upon Landlord and Tenant during
the First Extension Term of this Lease.
B. Provided Tenant is not in default under any of the material terms and
conditions of this Lease beyond the applicable cure period, if any, whether
at the time of the required exercise of the option to extend the First
Extension Term or prior to the commencement of the Second Extension Term
(as hereafter defined) Tenant shall have the option to extend the term of
this Lease for an additional two (2) years ("Second Extension Term"), on
the following terms and conditions:
(i) Tenant shall notify Landlord of its intention to extend the term of
this Lease for an additional period of two (2) years. Said notice
shall be in writing and must be sent by Tenant in accordance with the
notice provisions of this Lease not less than six (6) months prior to
the expiration of the current term of this Lease, that is prior to
April 15, 2000. Time shall be of the essence with regard to this
notice requirement.
Tenant's notice to Landlord shall be irrevocable, and, in the event of
such notice, Tenant shall be liable for the rent, as determined below,
during the Second Extension Term.
29
Notwithstanding anything to the contrary contained herein, if at any
time this Lease is terminated prior to the expiration of the initial
term or First Extension Term hereof, then, without the requirement of
any notice, Tenant's option to extend the term as set forth herein is
likewise terminated.
(ii) For the period October 15, 2000 through October 14, 2001, Base Rent
shall be two hundred eighty-three thousand five hundred and 00/100
($283,500.00) Dollars, payable twenty-three thousand six hundred
twenty-five and 00/100 ($23,625.00) dollars monthly.
(iii) For the period October 15, 2001 through October 14, 2002, Base Rent
shall be two hundred ninety-seven thousand six hundred seventy-five
and 00/100 ($297,675.00) Dollars, payable twenty-four thousand eight
hundred six and 25/100 ($24,806.25) dollars monthly.
(iv) The limits of insurance to be carried by Tenant pursuant to Section 8
of the Lease, shall be increased upward (not downward) by the
percentage change in the Consumer Price Index (for any region which
contains Long Island, New York,) between the commencement date of the
First Extension Term and the commencement date of the Second Extension
Term.
(v) The same terms and conditions as set forth in the Lease (except for
rental and insurance which shall be as set forth in paragraphs B
(ii),(iii) and (iv)), shall remain binding upon Landlord and Tenant
during the Second Extension Term of this Lease.
C. Tenant shall have no further option to extend the term of this Lease other
than for the First Extension Term or Second Extension Term.
D. It is specifically agreed that a material term or condition of this Lease
shall include, but not be limited to, payment of any Base Rent or any
additional rent under this Lease.
SECTION 21. NON-LIABILITY OF LANDLORD:
Landlord and Landlord's agents and employees shall not be responsible or
liable for, and Tenant waives all claims for, loss or damage that may be
occasioned to Tenant's business or damage to person or property sustained
by Tenant resulting from any accident or occurrence (unless caused by or
resulting from the negligence of Landlord, other than accidents or
occurrences against which Tenant is insured) in or upon the Premises or the
building, including, but not limited to,
30
claims for damage resulting from: (i) any equipment or appurtenances
becoming out of repair; (ii) injury done or occasioned by wind; (iii) any
defect in or failure of plumbing, heating or air conditioning equipment,
electric wiring or installation thereof, gas, water, fire, and steam pipes,
stairs, porches, railing or walks; (iv) broken glass; (v) the backing up of
any sewer pipe or downspout; (vi) the bursting, stoppage, leaking or
running of any tank, tub, washstand, water closet, waste pipe, drain or
other pipe or tank in, upon or about the building or the Premises; (vii)
the escape of steam or hot water; (viii) water, snow or ice being upon or
coming through the roof, skylight, trapdoor, stairs, doorways, show
windows, walks or any other place upon or near the building or the Premises
or otherwise; (ix) the falling of any fixture, plaster, tile or stucco; and
(x) any act, omission or negligence of other tenants, licensees or of any
other persons or occupants of the building or of adjoining or contiguous
buildings or of owners of adjacent or contiguous property, or any part
thereof.
SECTION 22. INDEMNITY:
Tenant agrees to unconditionally indemnify, hold harmless and defend
Landlord, and its respective successors, assigns,agents and employees, from
and against, and reimburse such indemnified person for, any and all costs,
expenses, liabilities, causes of action, claims, penalties, fines or
demands, of any nature whatsoever (including without limitation all third
party public liability and property damage claims) which may be imposed on,
incurred by or asserted against Landlord, and its successors, assigns,
agents or employees, including any or all liabilities, obligations,
damages, costs, remedial costs, disbursements and expenses (including
without limitation, administration, and attorneys' fees and disbursements,
including fees in connection with appeals and enforcement of this
indemnity) of Tenant and Landlord in any way relating to or arising, or
alleged to arise out of this Lease, the Premises, the possession, use,
enjoyment or occupancy of all or any portion of the Premises, or related
thereto, including the acts or omissions of Tenant, or any concessionaire,
or subtenant or their respective licensees, servants, agents, employees and
contractors, including without limitation those in any way relating to or
arising or alleged to arise out of, for, or in connection with (a) any
claims based on strict liability in tort and any claim, penalty, or charge,
or any asserted or threatened claim that Tenant polluted or contaminated
the environment in any way or failed to obtain or comply with any and all
environmental permits, laws, regulations, ordinances, order, and any other
applicable environmental requirement in effect now or in the future in
connection with Tenant's operations or
31
occupancy, (b) any injury whatsoever to or the death of any person or any
damage whatsoever to or loss of property in, on, about or near the
Premises, or any part thereof, including the sidewalks adjoining the same,
or in any manner growing out of or in connection with, or alleged to grow
out of or in connection with, the use, or business conducted at the
Premises, replacement, adaptation or maintenance of the Premises, or of any
other land and interests in land used or occupied in connection with the
Premises (whether owned or under the control of Landlord or Tenant), or
resulting or alleged to result from the condition of any thereof; (c) any
violation, or alleged violation, of any provision of this Lease (except by
Landlord) or of any agreement, law, rule, regulation, ordinance or
restriction, affecting or applicable to the Premises or Tenant's activities
at the Premises, or the leasing, use, replacement, adaptation or
maintenance thereof, or (d) any default under the Lease by Tenant which
would cause a default under any mortgage (except as to the payment of
principal or interest thereunder). Nothing in this Section 22 shall be
construed to make Tenant liable hereunder for matters directly resulting
from the wilful misconduct or gross negligence of the party otherwise to be
indemnified hereunder or resulting from acts unrelated to the Lease,
possession or use of the Premises. In case any action, suit or proceeding
is brought against Landlord, its successors or assigns, agents or
employees, in connection with any claim indemnified against hereunder,
Landlord or mortgagee may and Tenant will, at Tenant's expense, diligently
resist and defend such action, suit or proceeding, or cause the same to be
resisted or defended by counsel selected by Tenant and approved by Landlord
and, in the event of any failure by Tenant to do so, Tenant shall pay all
costs and expenses (including without limitation attorney's fees and
expenses) incurred by Landlord in connection with such action, suit or
proceeding. Tenant and Landlord each agree to promptly notify each other,
in writing, of any claim or liability hereby indemnified against, provided
the failure of either party to give prompt written notice to the other
shall not relieve either party of liability hereunder.
SECTION 23. RIGHT TO CURE DEFAULTS:
If Tenant shall fail to comply fully with any of its obligations under this
Lease (including, without limitation, its obligations to maintain various
policies of insurance, comply with all laws, ordinances and regulations and
pay all bills for utilities), then Landlord shall have the right, at its
option but without obligation to do so, and at Tenant's expense, to cure
such breach on behalf of Tenant. Tenant agrees to reimburse Landlord (as
additional rent) for all
32
costs and expenses incurred as a result thereof together with interest
thereon promptly upon demand.
SECTION 24. BANKRUPTCY-INSOLVENCY:
Tenant agrees that if the estate created hereby shall be taken upon
execution, attachment or any other process of law, or if Tenant shall be
adjudged a bankrupt or insolvent, or any receiver or trustee shall be
appointed for the business or property of Tenant and be not discharged
within forty-five (45) days, or if Tenant shall make any assignment of its
property for the benefit of creditors, or if Tenant shall file a voluntary
petition in bankruptcy, or apply for reorganization, composition, extension
or other arrangement with its creditors under any federal or state law now
or hereafter enacted, and any such process, assignment, action or
proceeding be not vacated or set aside within thirty (30) days thereafter,
then each of the foregoing shall be deemed an Event of Default for the
purposes of the following Section 25 and Tenant shall remain liable as
provided in said Section 25. For the purpose of this Section 24, the term
"Tenant" shall be deemed to include the guarantor of this Lease, if any.
Notwithstanding anything to the contrary contained in this Lease, it is
specifically understood that this Lease is not intended to be an asset of
the Tenant.
SECTION 25. DEFAULT:
A. The following shall be defined and deemed as an "Event of Default":
(1) Any failure of Tenant to pay any Base Rent, Real Estate Taxes,
additional rent, or other sum of money due within five (5) days
after the same shall be due under this Lease; or
(2) Any failure of Tenant to maintain the insurance as required by
this Lease for more than ten (10) days after notice from
Landlord;
(3) Any failure of Tenant to correct any default with respect to
Section "7" within seven (7) days or such shorter period of time
as may be required by any rule, regulation, law, ordinance,
statute, direction and/or requirement of all governmental and
quasi-governmental authorities, etc. having jurisdiction over the
Premises, after notice of such default shall have been served
upon Tenant, unless the default or omission complained of shall
be of a nature that the same cannot be completely cured or
remedied within
33
the applicable period, and Tenant shall not have diligently
commenced curing such default within such seven (7) day period
and shall not thereafter with reasonable diligence and in good
faith proceed to remedy or cure such default; or
(4) Any failure of Tenant to perform any other of the terms,
conditions or covenants of this Lease to be observed or performed
by Tenant for more than thirty (30) days after notice of default
shall have been served upon Tenant, unless the default or
omission complained of shall be of a nature that the same cannot
be completely cured or remedied within the applicable period, and
Tenant shall not have diligently commenced curing such default
within such thirty (30) day period and shall not thereafter with
reasonable diligence and in good faith proceed to remedy or cure
such default; or
(5) If Tenant shall abandon said Premises; or
(6) If by operation of law any interest of Tenant shall pass to
another and not revert to Tenant within thirty (30) days; or
(7) An Event of Default as defined in any other Section of this
Lease.
B. In case of any Event of Default not cured as hereinabove provided the
Landlord shall have the immediate right of re-entry and may remove all
persons and property from the Premises by summary proceedings,
reasonable force or otherwise. In addition, in any Event of Default
(whether or not Landlord shall elect to re-enter or to take possession
pursuant to legal proceedings or pursuant to any notice provided for
by law) Landlord shall have the right, at its option, to immediately
terminate this Lease on three (3) days notice to Tenant and/or it may
from time to time, whether or not this Lease be terminated, make such
alterations and repairs as may be necessary in order to relet the
Premises, and/or relet said Premises or any part thereof for such term
or terms (which may extend beyond the term of this Lease) and at such
rental(s) and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable; upon each such reletting all
rental(s) received by Landlord from such reletting shall be applied,
first, to the payment of any
34
indebtedness (other than rental due hereunder) of Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees and of costs of such
alterations and repairs; third, to the payment of rental(s) due and
unpaid hereunder, and the residue, if any, shall be held by Landlord
and applied in payment of future rental(s) as the same may become due
and payable hereunder, with the right reserved to Landlord to bring
such action(s) or proceeding(s) for the recovery of any deficits
remaining unpaid without being obliged to await the end of the term
for a final determination of Tenant's account, and the commencement or
maintenance of any one or more actions shall not bar Landlord from
bringing other or subsequent actions for further accruals pursuant to
the provisions of this Section.
If such rentals received from such reletting during any month be less
than that to be paid during that month by Tenant hereunder, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly subject to Landlord's right of action(s)
or proceeding(s) as aforesaid. No such re-entry or taking possession
of said Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention
be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach. Should Landlord at any
time terminate this Lease for any breach, in addition to any other
remedies it may have, it may recover from Tenant all damages it may
incur by reason of such breach as damages for loss of the bargain and
not as a penalty, including the cost of recovering the Premises,
reasonable attorneys' fees, and including the worth at the time of
such termination of the excess, if any, of the amount of all rent,
additional rent, and charges equivalent to rent reserved in this Lease
for the remainder of the stated term over the aggregate rental value
of the Premises for the remainder of the term, all of which shall be
immediately due and payable from Tenant to Landlord. In the event of a
breach or threatened breach by Tenant of any of its obligations under
this Lease, Landlord shall also have the right to appropriate
injunctive relief. The rights and remedies whether herein or anywhere
else in this Lease provided shall be cumulative and the exercise of
any one shall not preclude the exercise or act as a waiver of any
other right or remedy of Landlord hereunder, or which may be existing
at law, or in equity or by statute.
35
SECTION 26. SUBORDINATION:
A. This Lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such
leases or the real property of which the Premises are a part and to
all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and mortgages. This clause
shall be self-operative and no further instrument of subordination
shall be required by any ground or underlying lessee or by any
mortgagee, affecting any lease or the real property of which the
Premises are a part. In confirmation of such subordination, Tenant
shall execute promptly any certificate that Landlord may reasonably
request.
B. Notwithstanding the provision of Paragraph A, should any mortgagee
require that this Lease be prior rather than subordinate to any such
mortgage, Tenant shall, promptly upon request therefor by Landlord or
such mortgagee, and without charge therefor, execute a document
effecting and/or acknowledging such priority, which document shall
contain, at the option of such requesting party, an attornment
obligation to the mortgagee as landlord in the event of foreclosure or
to any party acquiring title through such mortgage in such event.
C. Landlord agrees to use reasonable efforts to obtain a non- disturbance
agreement for the benefit of Tenant from the holder of any mortgage
affecting the Premises.
SECTION 27. SURRENDER OF PREMISES:
On the last day or sooner termination of the term, or any extension term, Tenant
shall quit and surrender the Premises broom clean, in good condition and repair
(reasonable wear and tear excepted; provided that damage to the Premises (such
as, but not limited to, walls, floors and ceilings) resulting from the specific
business use of the Premises by Tenant shall not be considered ordinary wear and
tear), together with all alterations, additions and improvements which may have
been made in, on or to the Premises, except movable furniture or unattached
movable trade fixtures put in at the sole expense of Tenant; provided, however,
that Tenant shall ascertain from Landlord at least thirty (30) days before the
end of the term whether Landlord desires to have the Premises or any part
thereof restored to the condition in which it was originally delivered to
Tenant, and if Landlord shall so desire, then Tenant, at its own cost and
expense, shall restore the same before the end of the term, remove from the
Premises all its property together with any alterations, additions and
improvements, the removal of which is requested by Landlord, and any or all of
36
such property not so removed shall, at Landlord's option, become the exclusive
property of Landlord or be disposed of by Landlord, at Tenant's cost and
expense, without further notice to or demand upon Tenant. If the Premises be not
surrendered as and when aforesaid, Tenant shall indemnify Landlord against loss
or liability resulting from the delay by Tenant in so surrendering the Premises
including, without limitation, any claims made by any succeeding occupant
founded on such delay. Tenant's obligations under this Section shall survive the
expiration or sooner termination of the term.
SECTION 28. RIGHT OF REDEMPTION:
Tenant waives any and all rights of redemption conferred by statute or
otherwise, to the extent legally authorized, upon the expiration or sooner
termination of the term or upon the entry of final unappealable judgment for
recovery of possession through any action or proceeding.
SECTION 29. EFFECT OF UNAVOIDABLE DELAYS:
The provisions of this Section shall be applicable if there shall occur, during
or prior to the term, any: (1) strike(s), lockout(s) or labor dispute(s); (2)
inability to obtain labor or materials or reasonable substitutes therefor; or
(3) Acts of God, governmental restrictions, regulations or controls, enemy or
hostile governmental restrictions, regulations or controls, enemy or hostile
governmental action, civil commotion, insurrection, revolution, sabotage, or
fire or other casualty, or other conditions similar to those enumerated in this
item (3) beyond the reasonable control of Landlord, or if Landlord is delayed or
impeded by acts of Tenant, its officers, employees, agents, servants and the
like or by weather conditions. If Landlord shall, as a result of any such event,
fail punctually to perform any Lease obligation, including, but not limited to,
Landlord's obligations set forth in Sections 2, 5 and 6 hereof, then such
obligation(s) shall be punctually performed as soon as practicable after such
event shall ▇▇▇▇▇. If Landlord shall, as a result of any such event, be unable
to exercise any right or option within any time limit provided therefor in this
Lease such time limit shall be deemed extended for a period equal to the
duration of such event. Landlord shall under no circumstances be liable to
Tenant for any damages which may result from any such delays and Tenant shall
have no right to cancel or terminate this Lease by reason of any such delay
caused by an event in this paragraph.
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SECTION 30. CONSENTS:
Landlord agrees that whenever in this Lease Landlord's consent shall be
required, the same shall not unreasonably withheld or delayed. Landlord agrees
that if Landlord does not respond at all to any formal written request by Tenant
for consent or approval within thirty (30) days after written notice from
Tenant, such consent or approval shall be deemed granted or approved. However,
Tenant shall not be entitled to make, nor shall Tenant make, any claim for, and
Tenant hereby waives any claim for money damages; nor shall Tenant claim any
money damages by way of setoff, counterclaim or defense, based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
any consent or approval; but Tenant's sole remedy shall be an action or
proceeding to enforce any such provisions, or for specific performance,
injunction or declaratory judgment.
SECTION 31. TENANT'S SECURITY:
Tenant has deposited with Landlord the sum of nineteen thousand one hundred
sixty-seven and 00/100 ($19,167.00) Dollars as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease. It is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this Lease, including, but not limited
to the payment of Base Rent and additional rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any Base Rent and additional rent or any other sum as to
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency may accrue before or after summary
proceedings or other re-entry by Landlord. In the event that Tenant shall fully
and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the security or any balance thereof shall be returned
to Tenant within ten (10) business days after the date fixed as the end of this
Lease and after delivery of entire possession of the Premises to Landlord.
Tenant shall not be entitled to any interest on security. In the absence of
evidence satisfactory to Landlord of any assignment of the right to receive the
security, or the remaining balance thereof, Landlord may return the security to
the original Tenant, regardless of one or more assignments of the Lease itself.
In the event of a sale, or leasing, subject to this Lease, Landlord shall have
the right to transfer the security to the vendee or lessee and Landlord shall be
considered released by Tenant from all liability for the return of such
security; and Tenant agrees to look solely to the new landlord for the return of
the security and it is agreed that this shall apply to every
38
transfer or assignment made of the security to a new landlord. No holder of a
mortgage to which the Lease is subordinate shall be responsible in connection
with the security deposited hereunder, by way of payment of rents, or otherwise,
unless such mortgagee shall have received the security deposited hereunder.
Tenant further covenants that it will not assign, mortgage, encumber or attempt
to assign, mortgage, or encumber the monies deposited herein as security and
that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, mortgage, attempted assignment or attempted
encumbrance. It is expressly understood and agreed that the issuance of a
warrant and the re-entering of the Premises by Landlord for any default on part
of Tenant prior to the expiration of the term, or any extension thereof, shall
not be deemed such a termination of this Lease as to entitle Tenant to the
recovery of security; that any unapplied portion of such deposit shall be
retained and remain in possession of Landlord until the end of term.
SECTION 32. TENANT'S CERTIFICATE:
Tenant shall, without charge at any time and from time to time within ten
(10) days after request by Landlord, certify by written instrument, duly
executed, acknowledged and delivered, to any mortgagee, assignee of any
mortgagee or purchaser, or any proposed mortgagee, proposed assignee of any
mortgagee, or proposed purchaser, or any other person, firm, or corporation
specified by Landlord:
A. That this Lease is unmodified and in full force and effect (or, if
there has been modifications, that the same is in full force and
effect as modified and stating the modifications); and
B. Whether or not there are then existing any setoffs or defenses against
the enforcement of any of the agreements, terms, covenants or
conditions hereof upon the part of Tenant to be performed or complied
with (and, if so, specifying the same); and
C. The dates, if any, to which the Rental(s) and other charges hereunder
have been paid in advance; and
D. The termination date of the Lease; and
E. The amount of Base Rent currently being paid by Tenant; and
F. The amount of security deposited hereunder; and
G. That there are no options or rights other than as may be set forth in
the Lease; and
39
H. Such other and further items as may reasonably be required by
Landlord, any mortgagee or any proposed assignee.
Tenant's failure to deliver such letter within the required time, or
failure of any such statement to contain the required certifications, shall
be conclusive upon Tenant that this Lease is in full force and effect
without any modification and that there are no defaults, or such items not
certified to are as set forth in this Lease, as the case may be.
Tenant further agrees that upon written request of Landlord, Tenant will
furnish to Landlord and to prospective mortgagees of the property such
financial statements and information as such prospective mortgagees may
reasonably request.
Tenant shall also furnish to Landlord and any mortgagee, within ninety (90)
days after the end of each fiscal year of the Tenant, copies of financial
statements of the Tenant for such fiscal year, certified by Tenant.
If an institution furnishing or intending to furnish a mortgage on the
Premises shall require a change or changes in this Lease as a condition of
such financing and if Tenant refuses to agree thereto, the Landlord may
terminate this Lease at any time, provided such changes shall not
substantially alter the obligations of the parties each to the other or to
impose on the Tenant any conditions more burdensome than as otherwise
exists hereunder.
Tenant's failure to deliver such letter within such time shall be
conclusive upon Tenant that this Lease is in full force and effect without
any modification and that there are no defaults.
SECTION 33. WAIVER OF TRIAL BY JURY:
Landlord and Tenant do hereby waive trial by jury in any action, proceeding
or counterclaim brought by either against the other upon any matters
whatsoever arising out of or in any way connected with this Lease, Tenant's
use or occupancy of the Premises, and/or any claim of injury or damage. It
is further mutually agreed that in the event Landlord commences any summary
proceedings for non-payment of any Base Rent and additional rent, Tenant
will not interpose any counterclaim of whatever nature or description in
any such proceeding.
SECTION 34. QUIET ENJOYMENT:
40
Landlord covenants that upon Tenant paying the rental(s) and performing and
observing all Tenant's other Lease obligations, Tenant may peaceably and
quietly have, hold and enjoy the Premises for the term hereof and any
renewal thereof, subject and subordinate as provided in this Lease.
SECTION 35. SOLE BROKER:
Landlord represents that it did not give any broker an exclusive right to
lease the Premises. Tenant covenants, warrants and represents to Landlord
that there was no broker other than ASHLIND PROPERTIES CORP. (hereinafter
referred to as the "Broker") instrumental in consummating this Lease, and
that no conversations or prior negotiations were had with any broker other
than Broker concerning the renting of the Premises. Tenant further
acknowledges that Landlord would not have entered into this Lease without
such warranty and representation by Tenant. Tenant agrees to hold Landlord
harmless against any commissions, claims, costs, expenses, demands, suits,
causes of actions or liability whatsoever, including attorney's fees, with
respect to finder's or brokerage fees or commissions arising out of
transactions contemplated by this Lease asserted against Landlord by any
other broker or finder. Any payments due to Landlord hereunder shall be due
as additional rent. The representations contained in this section shall
survive the termination of this Lease. Tenant agrees, at Tenant's sole cost
and expense, to pay the Broker the commission due broker hereunder pursuant
to a separate agreement and shall hold Landlord harmless in connection
therewith, as aforesaid.
SECTION 36. ATTORNEY'S FEES:
In the event that Landlord institutes:
(a) summary or other proceedings to recover possession of the Premises
(including if Tenant remains in Premises at the expiration or sooner termination
of the term of this Lease) and is successful; or
(b) a lawsuit to recover rent, additional rent or other payments due under
the Lease and is successful; or
(c) a lawsuit to enforce or to recover damage for the breach of any of the
terms of the Lease and is successful; or
(d) any appearance by Landlord or its representatives at any of (a) - (c);
or
41
(e) should Tenant desire to amend, modify or change the Lease, or desire to
assign the Lease or sublease the Premises or in any other situation where
Landlord needs the services of an attorney;
it is specifically agreed that Tenant shall pay Landlord and/or Landlord shall
be entitled to recover from Tenant, in addition to all items which Landlord may
be entitled to recover in law or in equity, whether or not Landlord does recover
any items, attorney's fees, and the costs and disbursements of said proceeding
or otherwise as set forth in (a) - (e) above. Said payment(s) shall be due as
additional rent, and Landlord's Petition and/or Pleadings may make demand for
payment of attorney's fees as an amount currently due and owing to Landlord as
of the date of the Petition and/or Pleadings without the necessity of any or
further demand therefor or invoice for the same.
For the purposes hereof, Landlord shall be successful in the event at any time
Landlord obtains a judgment, order or recovers, or Tenant agrees to or is
ordered to pay, or comply with, the whole or any part of the relief demanded in
Landlord's petition, complaint, pleadings or other moving papers, or there is a
settlement with Tenant, whether at, during or prior to any trial or hearing, by
stipulation, order or otherwise, whereby Landlord obtains or recovers, or Tenant
agrees to pay or comply with the whole or any part of the relief demanded in
Landlord's petition, complaint, pleading or other moving papers.
In the event Landlord shall recover possession of the Premises in any summary
proceeding Tenant shall remain liable to Landlord under the Lease, and in
addition to all other remedies available at law in equity or under the Lease,
Landlord may seek damages for failure to pay rent under the Lease or failure to
abide by the terms and conditions of the Lease.
SECTION 37. POLLUTION AND HAZARDOUS WASTE:
Tenant agrees that no part of the Premises will be used in any way for, and
Tenant shall not suffer, permit or allow the use of the Premises or any part
thereof, either directly or indirectly, for treatment, preparation, generation,
manufacture, use, refining, production, storage, maintenance, handling,
transfer, transporting processing,disposal, burial, dispersal, release,or
placement of any Hazardous Substance (as hereinafter defined), petroleum
products, pollutants or contaminants. Tenant shall not release, suffer or permit
the release of any Hazardous Substance, petroleum products, pollutants or
contaminants onto the Premises or into the subsurface thereof or onto any
property whatsoever, including without limitation, surface water and ground
waters unless in
42
compliance with all applicable law(s), permit(s), order(s), or other valid
governmental approval(s), whether now in effect or hereafter enacted.
Furthermore, Tenant shall not cause or permit to occur any violation of any
federal, state or local law, ordinance, regulation or order now or hereafter
enacted, related to environmental conditions on, under or about the Premises, or
arising from Tenant's use or occupancy of the Premises, including, but not
limited to, soil and ground water conditions. Tenant shall, at Tenant's own
expense, comply with all laws regulating the treatment, preparation, generation,
manufacture, use, refining, production, storage, maintenance, handling,
transfer, transporting processing,disposal, burial, dispersal, release,or
placement of any Hazardous Substance, petroleum products, pollutants or
contaminants. Furthermore, Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all governmental authorities under all present and future laws.
Tenant shall provide all information regarding the treatment, preparation,
generation, manufacture, use, refining, production, storage, maintenance,
handling, transfer, transporting, processing, disposal, burial, dispersal,
release, or placement of any Hazardous Substance, petroleum products, pollutants
or contaminants that is requested by Landlord. Tenant agrees to provide Landlord
with an exact copy of any notice, directive,request, demand or any other
communication received by Tenant in connection with or relating to any matter or
thing covered by this Section 37.
The term Hazardous Substance means, without limitation, any pollutant,
contaminant, toxic or hazardous waste, dangerous substance, potentially
dangerous substance, noxious substance,toxic substance, flammable, explosive,
combustible, radioactive material, urea formaldehyde foam insulation, asbestos,
PCB's, chemicals known to cause cancer or reproductive toxicity, or any
manufacture,preparation, production, generation,use, maintenance, treatment,
storage, transfer, handling or ownership of which is restricted, prohibited,
regulated, penalized by any and all federal, state, local, county, or municipal
statutes, laws, or orders now or at any time hereafter in effect, including but
not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. ▇▇.▇▇. 9601 et seq.), the Hazardous Materials
Transportation Act ( 49 U.S. C. ▇▇.▇▇. 1801 et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the Federal Water Pollution
Control Act ( 33 U.S.C. ▇▇.▇▇. 1251 et seq.), the Clean Air Act (42 U.S.C.
▇▇.▇▇. 7401 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
▇▇.▇▇. 2601 et seq.), the Occupational Safety and Health Act (29 ▇.▇.▇.▇▇.▇▇.
651 et seq.), as these laws have been or may be amended or supplemented,and any
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
43
Failure of Tenant to abide by all of the foregoing obligations shall be a
default under this Lease which, if not cured within five (5) days of Landlord's
notice, or sooner if an emergency, dangerous, or hazardous condition exists in,
at, on, upon or about the Premises, shall entitle Landlord to pursue all
remedies available in law, at equity and/or under the Lease.
In addition, Tenant shall indemnify and save Landlord and its successors and
assigns and their respective officers, directors, shareholders, partners, agents
and employees and the Premises and the building of which the Premises are part,
harmless against any and all claims, obligations, liabilities, violations,
penalties, fines, suits, governmental orders, causes of actions, judgments,
damages, costs and expenses, whether civil or criminal or both, of any and all
kind or nature which result from or are in any way connected with a breach or
default by Tenant of the foregoing agreement and/or which the Landlord may be
subject in connection with any Hazardous Substance at the Premises, including
,without limitation,resulting from or in connection with the discharge,
despoiler, release or escape of any Hazardous Substance, smoke, vapors, soot,
fumes, acids, alkalis, toxic or hazardous chemicals, liquids or gases, volatile
organics, waste materials or other irritants, contaminants or pollutants or
otherwise at the Premises, or caused by or resulting from the use and operation
of the Premises by Tenant, its successors and assigns and/or by reason of
Tenant's invitees, licensees, employees, officers, agents, servants, etc., in
any case whether or not Tenant has complied with its obligations pursuant to
this agreement. This indemnification and save harmless agreement shall also
cover any and all liens for hazardous waste clean up expenses in favor of the
United States, New York State, or any political subdivision thereof, including
the County of Suffolk, Town of Smithtown, and any governmental department of any
of the foregoing.
All payments due from Tenant hereunder shall be due and payable as additional
rent within ten (10) days of presentation of a statement therefor by Landlord.
This indemnification shall include, but not be limited to, legal fees and other
charges to which Landlord may be put, including cleanup costs, in defending
against any action or proceeding in connection with the foregoing.
This indemnification and save harmless agreement shall survive the termination
of this Lease until such time as Tenant shall forward to Landlord, and/or its
designee, a report by a certified chemist and/or engineer that the Premises are
free of pollution and/or toxic or hazardous substances. The cost of said report
shall be paid solely by Tenant.
SECTION 38. ADJACENT EXCAVATION-SHORING:
44
If an excavation shall be made upon land adjacent to the Premises, or shall be
authorized to be made, Tenant shall afford to the person causing or authorized
to cause such excavation license to enter upon the Premises for the purpose of
doing such work as said person shall deem necessary to preserve the wall, the
property, or the building of the Premises from injury or damage and to support
the same by proper foundations without any claim for damages or indemnity
against Landlord, or diminution or abatement of rent. To the extent reasonably
possible, it is agreed that any entrance onto the Premises shall be done so as
to minimize interference with Tenant's business at the Premises.
SECTION 39. DEFINITION AND LIABILITY OF LANDLORD:
A. The term "Landlord" as used in this Lease means only the owner in fee or
the mortgagee in possession for the time being of the Premises, so that in
the event of any transfer of said fee title, Landlord shall be and hereby
is entirely freed and relieved of all obligations of Landlord hereunder and
it shall be deemed without further agreement between the parties and such
grantee(s) that the grantee has assumed and agreed to observe and perform
all obligations of Landlord hereunder.
B. It is specifically understood and agreed that there shall be no personal
liability on Landlord in respect to any of the covenants, conditions or
provisions of this Lease. This exculpation of personal liability shall be
absolute and without any exception whatsoever. In the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant
shall look solely to the equity of Landlord in the Premises for the
satisfaction of Tenant's remedies. Tenant shall have no rights of lien,
levy, execution or other enforcement proceedings against any other property
or assets of Landlord.
SECTION 40. RELATIONSHIP OF PARTIES:
Nothing contained in this Lease shall be construed to create the relationship of
principal and agent, partnership, joint venture or any other relationship
between the parties hereto other than the relationship of Landlord and Tenant.
SECTION 41. NOTICES:
Except as may be provided by the Civil Practice Law & Rules or Real Property
Actions and Proceedings Law, every notice, approval, consent or other
communication authorized or required by this Lease
45
shall not be effective unless served in writing and sent by United States
certified mail, return receipt requested, directed, if to Tenant to the
Premises, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and if to Landlord, at the address set forth on
the first page of this Lease, or such other address as either Tenant or Landlord
may designate, from time to time, by notice given as provided herein.
It is specifically agreed that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ are authorized
to give notices under this Lease on behalf of their respective clients and such
notices shall be given the same force and effect as if given by the client.
Notwithstanding anything contained herein, all pleadings, petitions, notices of
petitions, notices, summonses or other documents in connection with any
litigation, proceeding or hearing in connection with this Lease shall be valid
and effective provided the same is served in compliance with the statutory
requirements governing such litigation, proceeding or hearing.
Each and all of the rental(s) payable by Tenant to Landlord under any of the
provisions of this Lease shall be paid to Landlord at the same place where a
notice to Landlord is herein required to be directed. If either party shall
properly exercise any option or election herein given to terminate this Lease,
the term shall expire and come to an end on the date properly specified in the
notice of termination with the same force and effect as if said date had been
originally fixed herein as the expiration date of this Lease, except for the
continuation of Tenant's liability as set forth in Section 25 hereof.
SECTION 42. WAIVER:
One or more waivers of any covenant or condition by Landlord shall not be
construed as a waiver of a subsequent breach of the same or any other covenant
or condition, and the consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be construed to waive or
render unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant.
SECTION 43. MISCELLANEOUS DEFINITIONS:
A. Affiliate" means any person, firm or corporation which controls or is
controlled by the party in question, or is controlled by the same
person(s), or firm(s) or corporation(s), or which is a member with such
party in a relationship of joint venture, partnership or other form of
46
business association which in any way affects the subject matter involved.
The term "control" means the ownership of stock possessing, and of the
right to exercise, at least fifty-one percent (51%) of the total combined
voting power of all classes of stock of the controlled corporation issued,
outstanding and entitled to vote for the election of directors, whether
such ownership be direct or indirect through control of another
corporation(s).
B. Wherever herein the singular number is used, the same shall include the
plural, and the masculine gender shall include the feminine and neuter
genders. The Section headings used herein are for reference and convenience
only. Each and every term and provision of this Lease which requires any
performance (whether affirmative or negative) by Tenant shall be deemed to
be both a covenant and a condition. The words "re-enter" and "re-entry" as
used herein are not restricted to their technical legal meaning.
SECTION 44. EXPIRATION OF LEASE:
In the event Tenant does not vacate the Premises on the expiration date of this
Lease, then and in that event, and with the written consent of Landlord,
Tenant's occupancy shall be strictly limited as a month-to-month Tenant on the
terms and conditions of this Lease, at a monthly rental which is the greater of
the market value of the Premises or twice the monthly rental payable for the
last month of this Lease, same payable in advance on the first day of each
month.
SECTION 45. UNDERSTANDING:
It is fully understood that Landlord and Tenant agree that this is a "net net
net lease" and Tenant is to be fully responsible, liable and is to pay all
taxes, fees, assessments, expenses, insurance, repairs both interior and
exterior, nonstructural, and any other charges for the Premises, except to the
extent expressly otherwise set forth in this Lease.
SECTION 46. JURISDICTION:
In any controversy concerning or related to this Lease or involving Landlord and
Tenant under this Lease agreement, it is hereby agreed that the courts of the
State of New York, in and for the County of Suffolk, be deemed the jurisdiction
for purposes of any controversy involving the Lease herein and the laws of the
State of New York shall be applicable. Tenant hereby further warrants and
represents to Landlord that is authorized to do business in the State of New
47
York and hereby submits to the jurisdiction of the courts of the State of New
York.
SECTION 47. EXHIBITS:
Landlord and Tenant agree that all of the terms and conditions, restrictions and
covenants contained in the following:
Exhibit A - Intentionally deleted prior to execution
Exhibit B - Intentionally deleted prior to execution
Exhibit C - Covenants and Restrictions
Exhibit D - Covenants and Restrictions
Exhibit E - Department of Health Letter
are to be strictly adhered to and these Exhibits are to be attached hereto and
made part hereof.
SECTION 48. AUTHORITY:
Tenant warrants and represents that it is duly formed and in good standing, and
has corporate or partnership power and authority, as the case may be, to enter
into this Lease and has taken all corporate or partnership action, as the case
may be, necessary to carry out the transaction contemplated herein, so that when
executed, this Lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant represents that the execution of this Lease
has been authorized by resolution of the Board of Directors of any proposed
corporate Tenant hereunder, or if the proposed Tenant is a partnership, the
execution of this Lease has been consented to in writing by the partners
thereof. Prior to the execution of this Lease Tenant shall provide Landlord with
a certified copy of the corporate resolution(s), partnership consent, or other
proof in form acceptable to Landlord which shall authorize the execution of the
Lease at the time of execution and also evidence the authority of the signatory
to sign this Lease on behalf of and bind the Tenant.
SECTION 49 ENTIRE AGREEMENT:
No oral statement or prior written matter shall have any force or effect all of
which shall merge herein and be superseded hereby. No waiver of any provisions
of this agreement shall be effective unless in writing, signed by the waiving
party. Tenant agrees that it is not relying on any representations or agreements
other than those contained in this Lease and expressly agrees to accept the
Premises "as is", subject to the terms and conditions of this Lease. This
agreement shall not be modified except by a writing subscribed by all parties,
nor may this Lease be cancelled by Tenant except with the written consent of
Landlord, unless
48
otherwise specifically provided herein. If any term, covenant or condition of
this Lease or the application thereof to any person or circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Lease shall be
valid and enforced to the fullest extent permitted by law. The submission by
Landlord of the within Lease in draft form shall be deemed submitted solely for
Tenant's consideration and not for acceptance and execution. Such submission
shall have no binding force or effect, shall confer no rights nor impose any
obligations, including brokerage obligations, upon either party unless and until
both Landlord and Tenant shall have executed this Lease and duplicate originals
thereof shall have been delivered to the respective parties. All captions herein
are solely for convenience and shall not be given any legal effect.
Expect as otherwise provided in this Lease, the covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and their respective heirs, distributees, executors,
administrators, successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands.
LANDLORD: PARK ASSOCIATES
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Partner
TENANT: SUPERIOR SUPPLEMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ pres
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
49
Exhibit "E"
PARK ASSOCIATES
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Gentlemen,
We are required by the Suffolk County Department of Health to have each of our
tenants respond to the following questions. Please prepare a letter on your
company letterhead addressing each of the items. We will supply the information
requested on Item 10.
1. A general, but detailed, description of the nature of the business
including the products manufactured, raw materials used, manufacturing
processes employed and, in particular, a description of any wet processes
required.
2. A description of any plans for expansion or a change in the foreseeable
future.
3. A complete listing of all chemicals of any type to be used both at the
present and in the future, giving quantities to be stored at any time and
rates of consumption. This includes both solid and liquid materials.
4. A description of how each chemical is used.
5. A description of each type of waste produced, how it is to be managed and
the quantities expected.
6. A description of any treatment proposed for handling waste materials.
7. A description of any storage facilities proposed for containing toxic or
hazardous materials.
8. A statement that there will be no discharges from the facility that could
contain toxic or hazardous materials (in areas where prohibited).
9. A statement that there will be no floor drains anywhere in the building, or
if floor drains are needed, then a complete justification for the need for
a floor drain system and plans for a proper closed drainage system and
holding tank.
10. A set of floor plans for the facility.
11. A statement signed by a responsible corporate officer (president or vice
president) attesting to the truth and completeness contained in the report.
With regard to item 11, please include the following language in your letter:
I certify that information included in this letter and all attachments have
been reviewed and that, based on my inquiry of those persons immediately
responsible for obtaining the information contained in this letter, I
believe that the information is true, accurate and complete. I understand
that false statements made herein are punishable as a class a misdemeanor
pursuant to Section 210.45 of the penal law.
Should you have any question, please don't hesitate to give me a call.
Sincerely,