Exhibit 10.4
This Lease, dated the 20th day of November, 1995.
Parties Between Barlich Realty, Inc., 00 Xxxxxx Xxxx, Xxxxxxx, Xxx
Xxxx 00000, hereinafter referred to as the Landlord, and
Medical Sterilization, Inc., 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxx Xxxx 00000, hereinafter referred to as the
Tenant.
WITNESSETH: That the Landlord hereby demises and leases unto
the Tenant, and the Tenant hereby hires and takes from the
Landlord for the term and upon the rentals hereinafter
specified, the premises described as follows, situated in
the Town of Oyster Bay, County of Nassau and State of New
York.
Premises Building known as 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx
and the property on which it is situated.
Term The term of this demise shall be for 5 years beginning March
1, 1996 and ending February 28, 2001.
Rent The rent for the demised term shall be
$2,376,000.00 ($ ), which shall accrue at a yearly rate
$456,000.00 for each of the first three years; and
$504,000.00 for each of the last two years of the term.
The said rent is to be payable monthly in advance on the
first day of each c calendar month for the term hereof, in
installments as follows:
Payment of $38,000.00 per month for the first three years;
Rent $42,000.00 per month for the last two years at the office of
Barlich Realty, Inc. or as may be otherwise directed by the
Landlord in writing.
THE ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS
Peaceful First. - The landlord covenants that the Tenant, on paying
Possession the said rental and performing the covenants and conditions
to this Lease contained, shall and may peaceably and quietly
have, hold and enjoy the demised premises for the term
aforesaid.
Purpose Second. - The Tenant covenants and agrees to use the
demised premises for a sterilization and radiation
processing facility, light manufacturing, warehouse,
distribution and related facility; offices and any legally
permitted use, and agrees not to use or permit the premises
to be used for any other purpose without the prior written
consent of the Landlord endorsed hereon.
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Default Third. - The Tenant shall, without any previous demand
in Payment therefor, pay to the Landlord or its agent, the said rent at
of Rent the times and in the manner above provided. In the event of
the non-payment of said rent, or any instrument thereof, at
the times and in the manner above provided, and if the same
Abandonment shall remain in default for ten days after becoming due or
in payment if the Tenant shall be dispossessed for non-payment of rent,
of Rent or if the leased premises shall be deserted or vacated, the
Landlord or its agents shall have the right to and may enter
the said premises as the agent of the Tenant, either by
force or otherwise, without being liable for any prosecution
or damages therefor, and may relet the premises as the agent
of the Tenant, and receive the rent therefor, upon such
Re-entry and terms as shall be satisfactory to the Landlord, and all
Reletting rights of the Tenant to repossess the premises under this
by Landlord lease shall be forfeited. Such re-entry by the Landlord
shall not operate to release Landlord the Tenant from any
rent to be paid or covenants to be performed hereunder
during the full term of this lease. For the purposes of
reletting, the Landlord shall be authorized to make such
Tenant repairs or alterations in or on the leased premises as may
Liable for be necessary to put the premises in good order and
Deficiency condition. The Tenant shall be liable to the landlord for
the cost of such repairs or alterations, and all expenses of
such reletting. If the sum realized or to be realized from
the reletting is insufficient to nullify the monthly or term
Lien of rent provided in this lease, the Landlord, at its option,
Landlord may require the Tenant to pay such deficiency month by
to Secure month, or may hold the Tenant in advance for the reletting
deficiency to be realized during the term of the reletting.
The Tenant shall not be entitled to any surplus accruing as
a result of the reletting. The Landlord is hereby granted a
lien, In addition to any statutory lien or right to
distraint that may exist, on all personal property of the
Tenant in or upon the demised premises, to secure payment of
the rest and performance of the covenants and conditions of
Performance this lease. The Landlord shall have the right, as agent of
Attorney's the Tenant to take possession of any furniture, fixtures or
Fees other personal property of the Tenant found in or about the
premises and sell the same at public or private sale and to
apply the proceeds thereof to the payment of any monies
becoming due under this lease, the Tenant hereby waiving the
benefit of all laws exempting property from execution, levy,
sale on distress or judgment. The Tenant agrees to pay, as
additional rent, all attorney's fees and other expenses
incurred, by the Landlord in enforcing any of the
obligations under the same.
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1) Notice that rent has become due and is unpaid
Subletting
and
Assignment
Condition of Fifth. - The Tenant has examined the demised premises,
Premises, and accepts them in their present condition and without any
Repairs representations on the part of the Landlord or its agents as
to the present or future condition of the said premises. The
Tenant shall keep the demised premises in good condition,
and shall redecorate, paint and renovate the said premises
as may be necessary to keep them in repair and good
appearance. The Tenant shall quit and surrent the premises
at the end of the demised term in as good condition as the
reasonable use thereof will permit. The Tenant shall not
make any alterations, additions, or improvements to said
premises without the prior written consent of the Landlord.
Alterations * All erections, alterations, additions and improvements,
and whether temporary or permanent in character, which may be
Improvements made upon the premises either by a landlord or the Tenant,
except furniture or movable trade fixtures installed at the
expense of the Tenant, shall be the property of the Landlord
and shall remain upon and be surrendered with the premises
as part thereof at the termination of this Lease, without
compensation to the Tenant. The Tenant further agrees to
Sidewalks keep said premises and all parts thereof in a clean and
sanitary condition of which are on the Sidewalks ground
floor, the Tenant further agrees to keep the sidewalks in
front of such ground floor portion of the demised premises
clean and free of obstructions, snow and Ice. *Except
landlord shall not unreasonably withhold consent. Further,
Landlord's consent shall not be required for construction of
interior partitions which do not affect bearing members.
Mechanics'
Liens Sixth. - In the event that any mechanics lien is held
against the premises or a result of alterations, additions
or improvements made by the Tenant, the Landlord, at its
option, after thirty day's notice to the Tenant, may
terminate this lease and may pay the said lien, without
inquiring into the validity thereof, and the Tenant shall
forthwith reimburse the Landlord the total expense incurred
by the Landlord in discharging the said lien, as additional
rent thereunder.
Glass Seventh.- The Tenant agrees to replace at the Tenant's
expense any and all glass which may become broken in and on
the demised premises. Plate glass and mirrors, if any, shall
be insured by the Tenant at their full insurance value in a
copy satisfactory to the Landlord. Said policy shall be of
the full premium type, and shall be deposited with the
Landlord or its agent.
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Liability of
Landlord Eighth.- The Landlord shall not be responsible for the
loss of or damage to property, or injury to persons,
occurring in or about this demised premises, by reason of
any existing or future condition, defect, matter or thing in
said demised premises or the property of which the premises
are in part, or for the acts, omissions or negligence of
other persons or tenants in and about the said property. the
Tenant agrees to indemnity and save the Landlord harmless
from all claims and liability for losses of or damage to
property, or injuries to persons occurring in or about the
demised premises.
Right to
Inspect and
Exhibit Tenth.- The Landlord, or its agents, shall have the
right to enter the demised premises at reasonable hours in
the day or night to examine the same, or to run telephone or
other wires, or to make such repairs, additions or
alterations as it shall deem necessary for the safety,
preservation or restoration of the improvements, or for the
safety or convenience of the occupants or users thereof
(there being no obligation, however, on the part of the
Landlord to make any such repairs, additions or alteration),
or to exhibit the same to prospect purchasers and put upon
the premises a suitable "For Sale" sign. For 1 year prior to
the expiration of the demised term, the landlord, or its
agents may similarly exhibit the premises to prospective
tenants, and may place the usual "To Let" signs thereon.
Damage by Eleventh.- In the event of the destruction's of the
Fire, demised premises or the building containing the said
Explosion premises by fire, explosion, the elements or otherwise
the Elements during the term hereby granted, or previous thereto, or such
or Otherwise partial destruction thereof as to render the premises wholly
untenantable or unfit for occupancy; or should the
demised premises be so badly injured that the same cannot be
repaired within ninety days from the happening of such
injury, then and in such case the term hereby created shall,
at the option of the Landlord, cease and become null and
void from the date of such damage or destruction, and the
Tenant shall immediately surrender said premises and all the
Tenant's interest therein to the Landlord, and shall pay
rent only to the time of such surrender, in which event the
Landlord may rent and re-posses the premises thus discharged
from this lease and may remove all parties threrefrom.
Should the demised premises be rendered untenantable and
unfit for occupancy; but yet be repairable within 180 days
from the happening of said injury, the Tenant may repair the
same with reasonable speed. But if the Premises shall be so
slightly injured as not to be rendered untenantable and
unfit for occupancy, then the Tenant may repair the same
with reasonable promptness and the Tenant shall immediately
notify the Landlord in case of fire or other damage to the
premises. In the event Landlord receives insurance proceeds
to cover rent loss, the Tenant's obligation hereunder shall
be
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reduced by the amount of such insurance recovery. Nothing
herein shall require Landlord to carry any such insurance.
Observation Twelfth.- The Tenant agrees to observe and comply with
of Laws, all laws, ordinances, rules and regulations of the Federal,
Ordinances, State, County and Municipal authorities applicable to the
Rules and business to be conducted by the Tenant in the demised
Regulations premises. The Tenant agrees not to do or permit anything to
be done in sold premises, or keep anything therein, which
will increase the rate of fire insurance premiums on the
improvements or any part thereof, or on property kept
therein, or which will obstruct or interfere with the rights
of the other tenants, or conflict with the regulations of
the Fire Department or with any insurance policy upon such
improvements or any part thereof. In the event of any
increase in insurance premiums resulting from the Tenant's
occupancy of the premises, or any act or omission on the
part of the Tenant, the Tenant agrees to pay such increase
in insurance premiums on the improvements or contents
thereto as additional rent.
Signs Thirteenth.- No sign, advertisement or notice shall be
affixed to or placed upon any part of the demised premises
by the Tenant, except in such manner, and of such size,
design and color as shall be approved in advance in writing
by the Landlord.
Fourteenth.- This lease is subject and is hereby
subordinated to all present Subordination mortgages, deeds
of trust and other encumbrances affecting the demised
premises to Mortgages or the property of which said premises
are a part. The Tenant agrees to execute, and Deeds of at no
expense to the Landlord, any instrument which may be
required, necessary Regulations or desirable by the Landlord
to further effect the subordination of this lease to any
such mortgage, deed of trust or encumbrance.
Sixteenth.- Reasonable rules and regulations which
shall be made by the landlord, shall be observed by the
Tenant and by the Tenant's employees, agent and customers.
The Landlord reserves the right to record and presently
exiting rules applicable to the demised premises, and to
make such other and further reasonable rules and regulations
as in its judgment, may from time to time be desirable for
the safety, care and cleanliness of the premises, and for
the reservation of good order therein, which rules, when so
made and notice thereof given to the Tenant, shall have the
same force and effect as if originally made a part of this
lease. Such other and further rules shall not, however, be
inconsistent with the proper and rightful enjoyment by the
Tenant of the demised premises.
**SEE RIDER PARAGRAPH 37**
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Eighteenth.- All notices and demands, legal or
otherwise, included in this lease, or the occupation of the
demised premises, shall be in writing, if the Landlord or
its agent desires to serve upon the Tenant any notice or
Notices demand it shall be sufficient to send a copy thereof by
certified mail addressed to the Tenant at the demised
premises or to leave a copy thereof with a person of
suitable age found on the premises, or to post a copy
thereof upon the door of said premises. Notices from the
Tenant to the Landlord shall be sent by certified mail or
delivered to the Landlord at the place hereinbefore
designated for the payment of rent, or to such party or
place as the Landlord may from time to time designate in
writing.
Nineteenth.- It is further agreed that if at any time
during the terms of this lease, (1) the Tenant shall make
any assignment for the benefit of creditors, or be decreed
Bankruptcy, insolvent or bankrupt according to law, or if a receiver
Insolvency, shall be appointment for the Tenant *then the Landlord may,
Assignment at its option, terminate this lease, exercise of such option
for Benefit to be evidenced by notice to that effect served upon the
of Creditors the assignee, receiver, trustee or other person in charge of
the liquidation of the property of the Tenant or the
Tenant's estate, but such termination shall not release or
discharge any payment of rent payable hereunder and then
accrued, or any liability then accrued by reason of any
agreement or covenant herein contained on the park of the
Tenant, or the Tenant's legal representatives. *and (2) such
assignment, insolvency, bankruptcy or receivership shall not
be terminated within 30 days of the date thereof.
Twenty-first.- If a substantial portion of the property
or any part thereof wherein the demised premises are located
shall be taken by public or quasi-public authority under any
Eminent power of eminent domain or condemnation, this lease, at the
Domain, option of the Landlord, shall forthwith terminate and the
Condemnation Tenant shall have no claim or interest in or to any award of
damages for such taking.
Security Twenty-second.- The Tenant has this day deposited *by
transfer of security under former lease with the Landlord
the sum of $83,945 as security for the full and faithful
performance by the Tenant of all the terms, covenants and
conditions of this lease upon the Tenant's part to be
performed, which said sum shall be returned to the Tenant
within 30 days after the time fixed as the expiration of the
term herein, provided the Tenant has fully and faithfully
carried out all of said terms, covenants and conditions on
Tenant's part to be performed. In the event of a bona fide
sale, subject to this lease, the Landlord shall have the
right to transfer the security to the vender for the benefit
of the Tenant and the Landlord shall be considered released
by the Tenant from all liability for the return of such
security; and the Tenant agrees to look to the new Landlord
solely for the return of the said security, and it is agreed
that this shall apply to every transfer or assignment made
of the security to a new Landlord. The security deposited
under this lease
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shall not be mortgaged, assigned or encumbered by the Tenant
without written consent of the Landlord. No interest shall
be payable on the security deposit. (1) within 30 days.
Delivery of Twenty-fourth.- No rights are to be conferred upon the
Lease Tenant until this lease has been signed by the Landlord and
an executed copy of the lease has been delivered to the
Tenant.
Lease Twenty-fifth.- The foregoing rights and remedies are
Provisions not intended to be exclusive but as additional to all rights
Not and remedies the Landlord would otherwise have by law.
Exclusive
Twenty-sixth.- All of the terms, covenants and
conditions of this lease shall inure to the benefit of and
Lease be binding upon the respective heirs, executors,
Binding administrators, successors and assigns of the parties
on Heirs, hereto. However, in the event of the death of the Tenant, if
Successors, an individual, the Landlord may, at its options, terminate
Etc. this lease by notifying the executor or administrator of the
Tenant at the demised premises.
Twenty-seventh.- This lease and the obligation of
Tenant to pay rent hereunder and perform all of the other
covenants, and agreements hereunder on part of Tenant to be
performed shall in no way be affected, impaired or excused
because of any claim that Landlord is unable to supply or is
delayed in supplying any service expressly or impliedly to
be supplied or unable to make, or is delayed in making any
repairs, additions, alternations or decorations or is unable
to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing
by reason of governmental preemption in connection with the
National Emergency declared by the President of the United
States or the connection with any rule, order or regulation
of any department or subdivisions thereof of any
governmental agency or be reason of the conditions of supply
and demand which have been or are affected by the war. As
noted in rider, Landlord has no obligation to supply
services or make any repairs whether structural or
otherwise.
Twenty-eighth.- This instrument may not be changed
orally.
***FOR ADDITIONAL PROVISIONS SEE RIDER***
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RIDER TO LEASE DATED ____________, 1995 BETWEEN
MEDICAL STERILIZATION, INC. AND BARLICH REALTY, INC.
1. TENANT'S RESPONSIBILITIES:
A. Nothing to the contrary herein prevailing, the Tenant shall be
responsible for the functional integrity of the bearing members. All matters of
maintenance and management shall be the sole and exclusive responsibility of
Tenant. Tenant hereby covenants that it will make all reasonably necessary
repairs in a timely and effective manner, and should a defect in maintenance or
management of the demised premises not be remedied in a timely and effective
manner, the Landlord is hereby authorized to, without notice to Tenant, enter
upon the demised premises and make, on behalf of Tenant, the necessary repairs.
Any cost attendant upon such repairs shall be deemed additional rent to be paid
on the first day of the month next succeeding completion of the repairs.
Landlord (and its representative) shall be entitled to unlimited access to the
premises for purpose of inspection of all repairs and maintenance by Tenant and
to determine the need for same.
B. Tenant's responsibility for maintenance and management
shall be for all matters including, but not be limited to:
a) heat
b) ventilation
c) air conditioning
d) plumbing
e) parking
f) landscaping
g) insurance
h) snow removal
i) water
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j) parking lot and driveways
k) structural, including roof, repairs
1) all taxes applicable to the ownership and occupation of
the demised premises
C. Tenant will maintain the sidewalks in front of the demised premises by
sweeping same and keeping the same clear of snow and provide whatever janitorial
services may be necessary to keep the exterior walks clean. Further, the Tenant
agrees that it is solely responsible for the removal of garbage and debris which
may accumulate and that all garbage shall be bound neatly and firmly in suitable
containers and thereafter shall be placed in a metal container of the type
supplied by carting companies for the purpose of accumulating garbage, (for
example, a "dumpster"). Further, it shall be Tenant's responsibility to pay for
and enforce prompt and regular removal of its garbage and debris and that the
area or areas surrounding the storage of garbage and debris subject to
collection shall be made clear of refuse upon the ground and shall be maintained
daily by the Tenant to insure against collection or accumulation thereof. In the
event of the failure of the Tenant to generally comply with this regulation or
any part thereof, in the sole discretion of the Landlord, the Landlord may
engage (at Tenant's expense) whatever services may be necessary to maintain the
premises in a suitable degree of cleanliness and freedom from debris.
2. SECURITY: It is intended that security shall equal two months rent and
any increase in annual rent provided for herein shall require an increase in
security so that security shall at all times equal two months of rent. The
security shall be for the sole and exclusive use of the Landlord and no
accountability for principal or interest accumulated or earned thereon shall be
required of Landlord by Tenant.
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3. NO SUBLEASE OR ASSIGNMENT ALLOWED: Tenant shall not be permitted
to sublease or assign any or all of the demised premises without the advance
written approval of Landlord, which approval Landlord shall not reasonably
withhold.
Notwithstanding the above, Landlord's consent shall not be required
for Tenant's subleasing or assigning up to 50% of the improvements on the
demised premises, provided the proposed assignee(s)/sublessee(s) meets
Landlord's reasonable imposed standards of financial responsibility.
Notwithstanding any assignment or sublease Tenant hereunder shall remain
primarily liable to Landlord for all Tenant's obligations under this Lease,
including for the payment of rent.
4. DELIVERY IN "AS IS" CONDITION: Landlord delivers to Tenant the demised
premises in "as is" condition and makes no warranties that any or all parts
thereof will be in good working order as of the day of the commencement of this
lease.
5. INSURANCE:
A. Tenant shall insure the demised premises and the
improvements thereon as follows:
a) against the risk of fire or other casualty in the amount
of $5,000,000;
b) against the risk of public liability in the amount of
$5,000,000 for any one claim and $10,000,000 for any
number of claims arising from a single event.
c) Landlord and its shareholders, officers and directors
and any mortgagee shall be named insureds in all
policies.
B. Tenant shall provide at Tenant's sole cost and expense insurance
insuring Landlord against any loss of rental during the term of this lease by
reason of casualty loss.
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C. The policies shall name Landlord, any person, firms or
corporations designated by Landlord, and Tenant as insured, and shall contain
clauses that the insurer will not cancel or change the insurances without first
giving the Landlord ten (10) days prior written notice. The insurances shall be
with insurance companies approved by Landlord and a copy of the policies or
certificates of insurance shall be delivered to Landlord. Upon a failure, after
demand, of the Tenant to obtain the insurance policies described hereinabove,
the Landlord is hereby authorized to obtain same in the limits set forth
hereinabove on behalf of the Tenant and the premiums for such policies shall be
due and payable with the installment of rent next due.
6. FIXTURES: For the purposes of paragraph FIFTH hereof "movable trade
fixtures" shall be defined as: trade or other fixtures or equipment of Tenant
detachable from the realty by removal of screws, bolts or nails or the severing
of any wires by which such fixtures have been affixed to the floors, walls or
ceiling. Tenant shall at its own cost and expense, however, repair all damage to
the demised premises caused by the installation or removal of its trade or other
fixtures in default of which such repairs may be made by the Landlord at
Tenant's expense.
7. INCREASED LOAD CAPACITY: If any use granted by this lease to the Tenant
shall result in a floor load in excess of the load capacity presently in
existence, Tenant is hereby granted the authority to increase the load capacity
in any manner permitted by law and subject to the same conditions imposed upon
Tenant herein for renovation of the demised premises except that Tenant shall
not be required to restore the property to it's former load capacity.
8. OMITTED.
9. ASSIGNMENT TO PARENT CORPORATION PERMITTED:
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A. Tenant shall have the right to assign this lease to a
corporation which owns 51% percent of the stock of Tenant or to corporation in
which Tenant owns 50% percent of the stock provided (a) no assignment shall be a
release of Tenant and Tenant shall remain liable and responsible in all cases,
(b) that the assignee delivers to Landlord a duly executed assumption agreement
assuming and agreeing to all the terms and obligations of the lease in form
satisfactory to Landlord, and (c) that Tenant is not then in default of its
lease agreement.
B. A subsequent reduction in either (a) Assignee's stock ownership
of Tenant to less than 51% percent or (b) Tenant's stock ownership of Assignee
to less than 50% percent shall, at Landlord's sole option, be deemed a
reassignment to Tenant. In the event of reassignment Assignee shall nevertheless
remain liable and responsible to Landlord for all of Tenant's and Assignee's
obligations under this lease as if reassignment to Tenant had not occurred.
C. Landlord may exercise its option under paragraph B above at
anytime; and no acceptance of rent or other action by Landlord shall constitute
a waiver of Landlord's rights to exercise its option, whether such acceptance of
rent or action occurs before or after Landlord acquires knowledge of its right
to exercise such option.
10. NO BROKER: Tenant hereby states that Tenant has not dealt with
any broker in connection with this lease.
11. IMPOSITIONS:
A. Tenant shall pay (except as hereinafter provided), before any
fine, penalty, interest or cost may be added thereto, or become due or be
imposed by operation of law for the nonpayment thereof, all taxes, assessments,
water and sewer rents, rates and charges, charges for public utilities, levies
and all other license and permit fees and other governmental charges,
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general and special, ordinary and extraordinary, unforeseen and foreseen, of any
kind and nature whatsoever, which at any time prior to or during the term of
this lease may be assessed, levied, confirmed, imposed upon, or become due and
payable out of or in respect of, or become a lien on, the leased premises or any
part thereof or any appurtenance thereto, the rent payable hereunder, any use or
occupation of the leased premises (all collectively hereinafter referred to as
"Impositions," and each of the above being hereinafter referred to as an
"Imposition").
B. If by law any Imposition may at the option of the payor be paid
in installments (whether or not interest shall accrue on the unpaid balance of
such Imposition), Tenant may exercise the option to pay the same (and any
accrued interest on the unpaid balance of such Imposition) in installments and,
in such event, shall pay such installments as they become due and before any
fine, penalty, further interest or cost may be added thereto. Upon termination
of this lease, Tenant shall forthwith prepay any installments which fall due
after termination.
C. Any Imposition (other than Impositions which have been converted
into installment payments by Tenant as referred to in subdivision B above)
relating to a fiscal period of the taxing authority, a part of which period is
included within the term of this lease and a part of which is included in a
period of time before or after the expiration of the term of this lease, shall
(whether or not such Imposition shall be assessed, levied, confirmed, imposed
upon or in respect of or become a lien upon the leased premises, or shall become
payable, during the term of this lease) be adjusted between Landlord and Tenant
as of the commencement or expiration of the term of this lease, so that Tenant
shall pay that portion of such Imposition which that part of such fiscal period
included in the period of time after the commencement and before the expiration
of the term of this lease bears to such fiscal period, and Landlord shall pay
the
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remainder thereof; the above provided, however, that the term of this lease
shall not have been shortened due to Tenant's default in the performance of any
of the Tenant's covenants, agreements and undertakings in this lease provided.
If Tenant is in default and as a result the term of this expires prior to its
expiration date absent such default, then there shall be no such apportionment,
in which case Tenant shall pay the Imposition for the entire remaining term of
this lease. However, if the premises be relet Tenant's obligations for
Impositions shall be apportioned only through the commencement date of the new
lease.
D. Nothing to the contrary herein contained shall require Tenant to
pay any municipal, state or federal income taxes assessed against Landlord, or
any municipal, state or federal capital levy, estate, succession, inheritance or
transfer taxes of Landlord, or any corporation franchise taxes imposed upon any
corporate owner of the fee of the leased premises; provided, however, that 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 as to cause the whole or any
part of the taxes, assessments, levies, impositions or charges now or hereafter
levied, assessed or imposed on real estate and the improvements thereon, to be
levied, assessed or imposed, wholly or partially as a capital levy, or
otherwise, on the rents received therefrom, or if any tax, corporation franchise
tax, assessment, levy (including but not limited to any municipal, state or
federal levy), imposition or charge, or any part thereof, shall be measured by
or based in whole or in part, upon the value of the leased premises and shall be
imposed upon Landlord, then all such taxes, assessments, levies, impositions or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Impositions" for the purposes hereof, to the extent
that such Impositions would be payable if the leased Premises were the only
property
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of Landlord subject to such Impositions, and Tenant shall pay and discharge the
same as herein provided in respect of the payment of Impositions.
E. Landlord shall promptly forward to Tenant all tax bills received
relating to the leased premises. Tenant will furnish to Landlord, within ten
(10) days after the date when any Imposition would become delinquent, official
receipts of the appropriate taxing authority, or other evidence satisfactory to
Landlord, evidencing the payment thereof. However, failure to furnish same shall
not be deemed a default unless Tenant fails to comply with this requirement
within 15 days after written request by Landlord.
F. Tenant shall have the right to contest the amount or validity, in
whole or in part, of any Imposition by appropriate proceedings diligently
conducted in good faith but only after payment of such Imposition, unless such
payment would operate as a bar to such contest or interfere materially with the
prosecution thereof, in which event Tenant may postpone or defer payment of such
Imposition if
(1) neither the leased premises nor any part thereof would by
reason of such postponement or deferment be in danger of being forfeited or
lost, and
(2) Tenant shall have deposited with Landlord the amount so
contested and unpaid, together with all interest and penalties in connection
therewith and all charges that might be assessed against or become a charge on
the leased premises or any part thereof in and/or during the course of such
proceedings, and
(3) Landlord shall not be in danger of being subjected to
criminal liability or penalty by reason of such postponement.
G. Upon the termination of any such proceedings (which shall include
any appeals from and petitions for review of any orders, decrees or judgments
deemed by Tenant to
-16-
be adverse or unfavorable, Tenant shall pay the amount of such Imposition or
part thereof as finally determined in such proceedings, the payment of which may
have been deferred during the prosecution of such proceedings, together with any
costs, fees, interest, penalties or other liabilities in connection therewith,
and, upon such payment, Landlord shall return, without interest, any amount
deposited with it with respect to such Imposition as aforesaid, or, at the
written request of Tenant, Landlord shall make available to Tenant, upon such
reasonable conditions as Landlord may prescribe, the amount of such deposit for
the making of such payment as aforesaid. If, at any time during the continuance
of such proceedings, Landlord shall reasonably deem the amount deposited as
aforesaid insufficient, Tenant shall, upon demand, make an additional deposit of
such sum as Landlord reasonably may request, and upon failure of Tenant so to
do, the amount previously deposited may be applied by Landlord (unless such
application would prejudice or otherwise adversely affect Tenant's rights in
such proceedings, including any rights to appeal or to seek petitions for the
review of any adverse order, decree or judgment issued in such proceedings) to
the payment, removal and discharge of such Imposition, and the interest and
penalties in connection therewith and any costs, fees or other liability
accruing in any such proceedings, and the balance, if any, shall be returned to
Tenant.
H. Tenant, at Tenant's sole cost and expense, shall have a right to
seek a reduction in the valuation of the leased premises as assessed for tax
purposes and to prosecute any action or proceeding which may be appropriate for
seeking or obtaining such reduction. To the extent to which any tax refund
payable as a result of any proceeding which Tenant may institute, or payable by
reason of compromise or settlement of any such proceeding, may be based upon, a
payment made by Tenant and shall not relate to a period as to which
apportionment thereof has been made with Landlord, Tenant shall be authorized to
collect the
-17-
same, subject to Tenant's obligation to reimburse Landlord forthwith for any
expenses and fees incurred by Landlord in connection therewith. Landlord may
(but shall not be obligated to) at its own expense, if it shall so desire,
endeavor at any time or times to obtain a reduction of the assessed valuation
upon the leased premises or any part thereof for the purpose of reducing taxes
thereon, and, in such event, Tenant will cooperate in effecting such a
reduction.
I. Landlord shall not be required to join in any proceedings
referred to in paragraphs F or H hereof unless the provisions of any law, rule
or regulation at the time in effect shall require that such proceedings be
brought by and/or in the name of Landlord or any owner of the leased premises,
in which event Landlord shall join in such proceedings or permit the same to be
brought in its name, in which event Tenant shall reimburse Landlord for its
costs (including attorney's fees) incurred in connection with any such
proceeding. Landlord shall not ultimately be subjected to any liability for the
payment of any costs or expenses in connection with any such proceedings, and
Tenant will indemnify and save harmless Landlord from any such costs and
expenses. Except as otherwise provided in this lease, Tenant shall be entitled
to any refund of any Imposition and penalties or interest thereon received by
Landlord which have been paid by Tenant, or which have been paid by Landlord but
previously reimbursed in full by Tenant.
J. The certificate, advice, or xxxx of the appropriate official
designated by law to make or issue the same or to receive payment of any
Imposition, certifying nonpayment of such Imposition, shall be prima facie
evidence that such Imposition is due and unpaid at the time of the making or
issuance of such certificate, advice or xxxx.
K. Landlord appoints Tenant the attorney-in-fact of Landlord for the
purpose of making all payments to be made by Tenant pursuant to any of the
provisions of this lease to
-18-
persons or entities other than Landlord. In case any person or entity to whom
any sum is directly payable by Tenant under any of the provisions of this lease
shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon
give written notice of such fact to Landlord and shall pay such sum directly to
Landlord who shall thereupon pay such sum to such person or entity.
12. ADDITIONAL RENT: In addition to the base rent, the Tenant shall pay as
additional rent all other sums of money or charges required to be paid by Tenant
under this Lease whether or not the same be designated "additional rent." If
such amounts or charges are not paid at the time provided in this Lease, they
shall nevertheless, if not paid when due, be collectible as additional rent with
the next installment of rent thereafter falling due hereunder, but nothing
herein contained shall be deemed to suspend or delay the payment of any amount
or money or charge at the time the same becomes due and payable hereunder, or
limit any other remedy of the Landlord.
13. INDEMNIFICATION AND WAIVER OF SUBROGATION: Tenant will indemnify
Landlord and save it harmless from and against any and all claims, actions,
damages, liability and expense in connection with loss of life, personal injury
and/or damage to property arising from or out of any occurrence in, upon or at
the leased premises or any part thereof. In case Landlord shall, without fault
on its part, be made a party to any litigation commenced by or against Tenant,
then Tenant shall protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation.
-19-
Tenant hereby waives any and all claims of damage or loss against
the Landlord. Tenant shall obtain in all insurance policies insuring the Tenant
for any loss, injury or damages whatsoever, a waiver of subrogation against the
Landlord, its agents and employees.
14. LEGAL EXPENSES: In the event that the Landlord shall have to bring any
action or proceeding against Tenant for the recovery of money damages or for
possession of the Premises by reason of nonpayment of rent, additional rent or
other sum by Tenant, or by reason of non-performance by Tenant of the terms and
conditions of the Lease herein or by reason of a breach of the Lease herein by
Tenant, and the Landlord shall incur costs and expenses by reason thereof, such
reasonable charges, including legal fees, shall be due and payable from the
Tenant as additional rent, and shall become immediately due and payable upon the
incurment of same.
15. NONLIABILITY OF LANDLORD: Landlord or its agents shall not in any
event whatsoever be liable for any injury or damage to any person or property
happening on or about the demised premises, or for any injury or damage to the
demised premises, or to any property of Tenant or to any property of any other
person, firm, association, or corporation on or about the demised premises from
whatever cause whatsoever including, but not limited to, fire, theft, explosion,
falling plaster, steam, gas, electricity, water, rain or snow or leaks from any
part of said building or from the pipes, appliances or plumbing works or from
the roof. Tenant shall give immediate notice to Landlord in case of fire or
accidents in the demised premises or of defects therein or in any fixtures or
equipment. If the Tenant shall fail to keep in force and effect the insurance
hereinabove set forth, then the Tenant shall indemnify and save harmless the
Landlord from and against any and all suits, claims, demands of every kind and
nature, including reasonable counsel fees by or on behalf of any person, firm,
association or corporation arising out of or based upon any accident, injury or
damage, however occurring, which shall or may happen on
-20-
or about the demised premises, or in or about the vaults, streets, sidewalks or
curbs in front of or adjacent thereto, and from and against any matter or thing
growing out of the condition, maintenance, repair, alteration, use, occupation,
or operation of the demised premises or of the vaults, streets, sidewalks or
curbs in front of or adjacent thereto.
16. REPOSSESSION: On the last day of the term hereof or on the earlier
termination thereof, Tenant shall peaceably and quietly leave, surrender and
deliver up to Landlord the demised premises broom-clean, together with the
building or any new building and all alterations, changes, additions and
improvements which may have been made upon the premises (except movable
furniture or movable trade fixtures put in at the expense of Tenant) in good
repair and good order and safe condition except for reasonable wear and tear.
Tenant, on or before said date shall remove all of Tenant's personal property
from the demised premises and all property not so removed shall be deemed to
have been abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without notice to Tenant and without
obligation to account therefor, but at Tenant's cost. Tenant's obligations under
this paragraph shall be deemed to survive the expiration or other termination of
this Lease.
17. FIXTURES ATTACHED TO REALTY: Any and all improvements in the property
and any and all structures or fixtures, except movable trade fixtures, not
attached to the realty shall be deemed attached to the freehold and
automatically become the property of Landlord upon installation unless Landlord
shall elect otherwise, which election shall be made by giving a notice not more
than sixty (60) days after the expiration or other termination of this Lease.
18. NO ABATEMENT OR RENT: No diminution or abatement of rent or other
compensation shall be claimed or allowed for inconvenience or discomfort arising
from the
-21-
making of repairs or improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority. The Landlord shall not be required to furnish, and the Tenant shall
not be entitled to receive any "services" from the Landlord. Neither shall there
be any abatement or diminution of rent because of making of repairs,
improvements, or decorations to the demised premises after the date above fixed
for the commencement of the term, it being understood and agreed that rent
shall, in any event, commence to run at such date so above fixed.
19. VALIDITY OF LEASE NOTWITHSTANDING UNENFORCEABILITY OF LEASE
PROVISION: The invalidity or unenforceability of any portion of the within
Lease Agreement shall in no way affect the validity or enforceability of any
other provision hereof.
20. NO ORAL AGREEMENTS: There are no oral agreements between the parties
hereto affecting this Lease and this Lease supersedes and cancels any and all
previous representations, negotiations, arrangements and understandings, if any,
between the parties hereto with respect to the subject matter hereof, and they
shall not be used to interpret or construe this Lease.
21. UTILITIES: The parties agree that the Tenant shall bear the entire
cost and expense of providing all utilities and services in or for the demised
premises, including (but not limited to) the following: Fuel for heat, fuel for
hot water in the event Tenant shall provide facilities for hot water, water,
janitor service, garbage removal, gas, electricity, air-conditioning, the
cleaning and/or repair of any septic tank or cesspool exclusively appurtenant to
the demised premises, including the pipes connecting same and/or sewer lines,
snow removal, and sewer hookup.
-22-
Tenant will keep the demised premises heated during the heating
season of each year during the term hereof and will protect the pipes from
freezing. Throughout the term of this Lease, Tenant shall maintain at its sole
cost and expense and keep in full force and effect for the benefit of Landlord,
with a company doing business in Nassau County, deemed responsible by the
Landlord, a service, repair and maintenance contract with respect to the
heating, ventilating and air-conditioning systems of the Premises. A copy of
such contract shall be delivered to Landlord together with a copy of the paid
xxxx.
22. RIDER SUPERSEDES PRINTED PORTION OF LEASE: If in this Lease there is
any conflict between the provisions of any of the printed portions of this Lease
and this Rider, the provisions of this Rider shall be deemed to supersede the
printed provisions.
23. LOCAL LAW: Any reference in the printed portions of this Lease to the
City of New York, and the Administrative Code of the City of New York, are
deemed deleted, and where applicable the Town of Oyster Bay, and the County of
Nassau and other local governmental authorities and their ordinances shall be
substituted in lieu thereof.
24. SUMS DUE LANDLORD: In any case in which the Rent, additional rent or
other sum due is not paid within 10 days of the day when same is due, Tenant
shall pay a late charge equal to 5 percent of the amount so due. Tenant further
agrees that the late charge imposed is fair and reasonable, complies with all
laws, regulations and statutes, and constitutes an agreement between Landlord
and Tenant as to the estimated compensation for costs and administrative
expenses incurred by Landlord due to the late payment of rent to Landlord by
Tenant. Tenant further agrees that the late charge assessed pursuant to this
Lease is not interest.
25. UTILITY EASEMENTS: This Lease is subject and subordinate to any
utility, gas, water and electric, light or telephone line easements affecting
the demised premises (a) now
-23-
existing or (b) which may hereafter be given and which shall not affect the use
and enjoyment of the premises. Landlord shall have the right to run services and
utilities through Tenant's premises if required.
26. SIGNS: Landlord consents to Tenant's present signage. In the future
Tenant shall erect only dignified signs from the exterior to the demised
premises which in addition to complying with all laws, rules and regulations of
any governing authority having jurisdiction thereof, shall be subject to the
prior written approval of Landlord as to size, content, place and manner of
erection, which consent shall not be unreasonably withheld.
27. LIMIT OF LIABILITY: In the event any clause in this Lease is deemed
null and void, or in the event any clause in this Lease may impart a liability
or obligation on the part of Landlord, then it is understood between the parties
to this Lease Agreement that the dollar amount of Landlord's liability herein
shall be limited to the extent of Landlord's interest in the property being
rented herein reduced by the amount of any mortgage then an encumbrance on the
premises.
28. EXCUSE OF LANDLORD'S PERFORMANCE: Anything in this agreement to the
contrary notwithstanding, providing such cause is not due to the willful act or
neglect of the Landlord, the Landlord shall not be deemed in default with
respect to the performances of any of the terms, covenants and conditions of
this Lease if same shall be due to any strike, lockout, civil commotion,
war-like operation, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, inability to obtain any
material, service or financing through Act of God or other cause beyond the
control of the Landlord.
29. PERMITS: Tenant at its own cost and expense shall procure all
necessary certificates, permits, orders or licenses which may be required for
the conduct of its business by
-24-
any governmental statute, regulation, ordinance or agency and insure that all
requirements relating to the uses of the demised premises by the Tenant shall be
complied with by the Tenant at its own cost and expense.
30. DEFINITION OF LANDLORD: As used in this Lease, the term "Landlord"
shall mean only the owner or the mortgagee in possession for the time being of
the building in which the demised premises are located so that in the event of
any sale of said building or an assignment of this lease or any underlying lease
or a demise of both said building and land, Landlord shall be and hereby is
entirely released and discharged from any and all further liability and
obligations of Landlord hereunder, except any that may have theretofore accrued.
Notwithstanding anything to the contrary provided in this Lease, it
is specifically understood and agreed, such agreement being a primary
consideration of this Lease by Landlord, that there shall be absolutely no
personal liability on the part of Landlord, its successors, assigns or any
mortgagee in possession (for the purposes of this paragraph collectively
referred to as "Landlord"), with respect to any of the terms, covenants and
conditions of this Lease, and that Tenant shall look solely to the equity of
Landlord in the demised premises for the satisfaction of each and every remedy
of Tenant in the event of any breach by Landlord of any of the terms, covenants
and conditions of this Lease to be performed by Landlord, such exculpation or
liability to be absolute and without exceptions whatsoever.
Any sale of the subject premises shall be subject to this Lease.
31. 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, acknowledge and delivered, to any
mortgagee, assignee of any mortgagee, purchaser, or any other person, firm or
corporation specified by Landlord:
-25-
(a) That this Lease is unmodified and in full force and effect
(or, if there has been modification, that the same is in full
force and effect as modified and stating the modifications);
(b) whether or not there are then existing any set-offs 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 and other charges
hereunder have been paid in advance and/or to which Landlord
may have consented, released or relieved Tenant from Tenant's
obligations fully to perform all of the terms, covenants and
conditions of the Lease on Tenant's part to be performed.
32. HOLDING OVER: If the Tenant retains possession of the demised premises
or any part thereof after the termination of the term by lapse of time or
otherwise, without prior written approval of Landlord, the Tenant shall pay the
Landlord rent at double the monthly rental otherwise applicable as set forth on
the first page of this lease for the time the Tenant thus remains in possession,
and in addition thereto, shall pay the Landlord all damages, consequential as
well as direct, sustained by reason of the Tenant's retention of possession. If
the Tenant remains in possession of the demised premises, or any part thereof,
after the termination of the term by lapse of time or otherwise, such holding
over shall at the election of the Landlord expressed in a written notice to the
Tenant and not otherwise, constitute an extension of this Lease on a
month-to-month basis at double the monthly rental otherwise applicable as set
forth
-26-
on the first page of this lease. The provisions of this section do not
exclude the Landlord's right of re-entry or any other right hereunder.
33. MECHANICS' LIENS: If, because of any act or omission of Tenant or
anyone claiming through or under Tenant, any mechanics' or other lien or order
for the payment of money shall be filed against the demised premises or the
building, or against Landlord (whether or not such lien or order is valid or
enforceable as such), Tenant shall, at Tenant's own cost and expense, cause the
same to be canceled and discharged of record within thirty (30) days after the
date of entry or filing thereof, and shall also indemnify and save harmless
Landlord from and against any and all costs, expenses, claims, losses or
damages, including reasonable counsel fees, resulting therefrom or by reason
thereof.
34. RIGHTS RESERVED BY LANDLORD:
A. Landlord reserves the right to enter the demised premises at all
reasonable times (1) for the making of inspections as Landlord may deem
necessary or desirable, (2) to exhibit the premises to prospective purchasers or
lessees of the building and/or land which same is situated, and (3) for any
purpose whatsoever relating thereto or to the safety, protection or preservation
of the demised premises or of the building or of Landlord's interest.
B. If during the last six (6) months of the term or of a renewal
term, Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may immediately enter and alter, renovate, and redecorate
the premises without reduction or abatement of rent or incurring any liability
to Tenant for compensation.
C. Landlord may exercise any or all of the foregoing rights hereby
reserved to Landlord without being deemed guilty of an eviction, actual or
constructive, or disturbance or interruption of Tenant's use or possession and
without being liable in any manner toward Tenant
-27-
and without limitation or abatement of rent or other compensation, and such acts
shall have no effect on this Lease.
35. SPRINKLERS: If there now is or shall be installed in the building a
"sprinkler system" and such system or any of its appliances shall be damaged,
injured or not in proper working order, Tenant shall forthwith restore the same
to good working condition at its own expense. If the Board of Fire Underwriters
or any bureau, department or official of the state or city government having
jurisdiction shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business, or the location of partitions or trade fixtures
or other contents of the demised, premises, or for any other reason, then all
such changes, modifications, alterations, additional sprinkler heads or other
equipment as are required or recommended and/or are reasonably necessary to
prevent the imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Board, or by any
Fire Insurance Company, shall be promptly made or installed at Tenant's expense.
36. INTEREST: Any payment required to be made by Tenant pursuant to this
Lease including all payments of rent, additional rent or other charges, not made
by Tenant within 10 days of its due date shall thereupon be deemed to be due and
payable by Tenant to Landlord on demand with interest thereon from the date when
the particular amount becomes due to the date of payment thereof to Landlord at
the rate of ten (10%) percent per annum.
37. VIOLATIONS OF COVENANTS: If (a) Tenant violates any of the covenants,
agreements and conditions of this lease or any of the rules and regulations now
or hereafter reasonably established by the Landlord and (b) Tenant fails within
10 days of the mailing of notice of such violation to the Tenant to either (1)
discontinue such violation or (2) if said
-28-
violation is of a nature that cannot be completely cured or remedied within said
ten day period, and if Tenant shall not have diligently commenced during such
ten day period, and shall not thereafter with reasonable diligence and in good
faith proceed to remedy or cure such violation; then this lease shall
thenceforth, at the option of the Landlord, become null and void, and the
Landlord may re-enter without further notice or demand. The rent in such case
shall become due, be apportioned and paid on and up to the day of such reentry;
and the Tenant shall be liable for all loss or damage resulting from such
violation and breach of this Lease. No waiver by the Landlord of any violation
or breach of condition by the Tenant shall constitute or be construed as a
waiver of any other violation or breach of condition, nor shall lapse of time
after breach of condition by the Tenant before the Landlord shall exercise its
option under this paragraph operate to defeat the right of the Landlord to
declare this lease null and void and to re-enter upon the demised premises after
the said breach or violation.
38. RECOVERY, IF ANY, UNDER LANDLORD'S INSURANCE: Landlord shall not be
required to maintain any insurance concerning the premises. However, (1) if for
its own reasons Landlord maintains insurance, (2) Tenant undertakes roof and/or
structural repairs covered by Landlord's insurance, and (3) if as a result of
the Landlord maintaining insurance monies are payable for roof and/or structural
repairs, then the amount of any such proceeds attributable to roof and/or
structural repairs shall be made available by the Landlord to the Tenant for
Tenant's use in effectuating such repairs.
BARLICH REALTY, INC.
By: _________________________________
Xxxxxxx X. Xxxxxxx, President
-29-
MEDICAL STERILIZATION, INC.
By: ________________________________
Xxxxxxx Xxxxxxx, President
393LMM5962/1.199065-1
