RIDER TO LEASE BETWEEN AND ALLIANCE DISTRIBUTORS HOLDING INC., AS TENANT DATED _________________, 200_
RIDER
TO LEASE XXXXXXX
0
XXXX XXXXXX REALTY LLC, AS LANDLORD
AND
ALLIANCE DISTRIBUTORS HOLDING INC., AS TENANT
DATED
_________________, 200_
37.
(a)
PREMISES.
The Premises shall be defined as the land and structure located at 0 Xxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000. The entire Premises are leased to Tenant
hereunder and Tenant is entitled to immediate occupancy thereof, provided that
until June 30, 2006 E-Tronics may continue to occupy that part of the Premises
it currently occupies, and provided that commencing no later than July 1, 2006,
time being of the essence, Tenant shall be entitled also to occupy the portion
of the Premises currently occupied by E-Tronics. The Premises may be used by
Tenant for the purposes of office and warehouse activities, and for any other
lawful purposes as the Landlord consents to in writing.
(b) Landlord
hereby assigns to Tenant the benefits of any “Economic Designated Zone” or
similar status that applies to the Premises.
(c) TERM.
This Lease shall be for a term (the “Original Term”) of five (5) years beginning
on the commencement date as defined in sub-paragraph (d) unless sooner
terminated pursuant to the other terms and conditions of this Lease, provided
that by written notice given by Tenant to Landlord at least 90 days prior to
the
expiration of the Original Term, this Lease shall be extended for an additional
five-year term (the “Additional Term”). The Original Term and the Additional
Term, if any, are referred to herein as the “Term.” The last date of the Term,
or the earlier termination hereof, shall hereinafter be referred to as the
Expiration Date.
(d)
COMMENCEMENT
DATE. The Lease Commencement Date shall be the date of this Lease.
(e)
LEASE
YEAR. The first Lease Year shall be the twelve (12) month period of time from
the first day of the first month that begins after the Commencement Date. Each
Lease Year thereafter shall be successive periods of twelve (12)
months.
38. FIXED
RENT. (a) Tenant’s obligation to pay fixed rent shall commence on the
Commencement Date. Tenant agrees to pay to Landlord, during the Term, annual
fixed rent (the “Fixed Rent”) in equal monthly installments (“Monthly
Installments”) without prior demand and without any set off or deduction
whatsoever. The Monthly Installments will be due and payable on the Commencement
Date and on the first day of each and every month thereafter for the Term.
All
Monthly Payments and payments of Additional Rent (defined in Paragraph 40
hereof) shall be sent to the Landlord at the address herein set forth or such
other address as Landlord may designate. The Fixed Rent during the first three
Lease Years of the Term shall be as follows: $1,080,000.00, with each Monthly
Installment being $90,000.00, except that during the occupancy by E-Tronics
as
aforesaid, the Fixed Rent and the Monthly Installments, as well as Additional
Rent referred to below, shall each be reduced by 24.5%. The first month’s
Monthly Installment, shall be paid by Tenant upon execution hereof.
(b)
The
Fixed
Rent shall be increased by two (2.5%) per annum of the first day of the fourth
Lease Year and on the first of each Lease Year thereafter (including each Lease
Year during the Additional Term, if any), such increases to be on a cumulative,
compounded basis.
(e)
In
the
event that the obligation to pay Fixed Rent or Additional Rent shall commence
on
any day other than the first of the month, the Fixed Rent and Additional Rent
shall be pro-rated for the period upon which the obligation to pay rent accrues,
to the last day of the calendar month.
39. TAXES.
(a) The Tenant agrees to pay, as Additional Rent during the Term hereof, 100%
(“Proportionate Share”) of any and all real estate taxes and/or other taxes, or
assessments levied or assessed on or against the Premises (collectively, the
“Taxes”). Tax bills or other documents supplied by Landlord to Tenant shall be
conclusive evidence of the amount of such Taxes and shall be used for the
calculation of the amounts to be paid by the Tenant.
(b)
Taxes
shall be pro-rated for any partial year during the Term, as
applicable.
(c)
Landlord hereby appoints Tenant as Landlord's attorney in fact to file, at
Tenant's expense, certiorari and related petitions and actions to seek to reduce
real estate taxes otherwise payable by Tenant.
40.
ADDITIONAL
RENT. (a) All costs and expenses which Tenant assumes or agrees to pay pursuant
to this Lease (including without limitation Taxes) shall at Landlord’s election
be treated as additional rent (“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 Fixed Rent.
(b)
If
Tenant
shall default in making any payment required to be made by Tenant (other than
the payment of Fixed Rent required by this Lease), or shall default in
performing any term, covenant or condition of this Lease on the part of the
Tenant to be performed, and after ten (10) day written notice thereof has been
given Tenant, Landlord, at its option, may, (but shall not be obligated to),
make such payment or, on behalf of Tenant, expend such sum as may be necessary
to perform and fulfill such term, covenant and condition, including reasonable
attorney’s fees. In such event, any and all sums so expended by Landlord, with
interest thereon at the highest rate permitted by law, but no more than eighteen
(18%) percent per annum from the date of such expenditure shall be deemed to
be
Additional 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 nor shall it affect any other remedy of Landlord by reason of such
default.
(c)
Payment
of Additional Rent shall be made by Tenant to Landlord within ten (10) days
after Landlord shall have presented Tenant with an invoice
therefor.
41.
SECURITY
DEPOSIT. (a) Simultaneously with the execution of the within Lease, Tenant
shall
pay to Landlord, the sum of $180,000.00 as security for the full and faithful
performance by the Tenant of all the terms, covenants and conditions of this
Lease upon its part to be performed (the “Security Deposit”), which sum shall be
deposited by Landlord in an interest bearing account (which interest will be
added to the Security Deposit), and shall be returned to the Tenant 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 its
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 purchaser
for
the benefit of the Tenant, which purchaser shall continue to hold the Security
Deposit in a separate account as aforesaid, and the Landlord shall be considered
released by the Tenant from all liability for the return of such security to
the
extent transferred to the purchaser, 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 on the security to a new
landlord.
(b)
The
Security Deposit shall not be mortgaged, assigned or encumbered by the Tenant
without the express written
consent
of the Landlord.
42.
NO
LANDLORD’S WORK. Landlord shall not be required to perform any work in
connection with Tenant’s occupancy of the Premises under this Lease, except for
structural repairs as expressly set forth in this Lease.
43.
ALTERATIONS.
The Tenant may, at its own expense, make such alterations, improvements,
additions and changes to the Premises in order to equip and operate its business
for the purposes and uses set forth herein subject to the
following:
(a)
Such
alterations, improvements, additions and changes shall be to the interior of
the
Premises only; and any alterations, improvements, additions and changes to
the
Premises shall require the prior, written consent of the Landlord, which shall
not be unreasonably withheld or delayed;
(b)
The
Tenant shall not tear down or demolish any of the improvements on the Premises,
or make any change or alterations in such existing improvements which, when
completed, will diminish the value of the Premises without the prior written
consent of the Landlord, which shall not be unreasonably withheld or
delayed;
(c)
The
Tenant shall not make any change in or improvement, additions or alteration
to
the Premises which will violate the terms of any mortgage on the Premises,
or of
any policy of insurance in force with respect to the Premises.
(d)
All
alterations, improvements, additions and changes shall be performed in a good
and workmanlike manner and shall conform to all building codes, ordinances,
rules and regulations of any municipality or governmental authority having
jurisdiction thereof;
(e)
Before
commencing any work, or installations of any kind, Tenant shall obtain
the necessary
consents, authorizations and licenses from Federal, State, local and/or
municipal authorities having jurisdiction over the work or installations to
be
done, and no work or installations shall be started unless and until all such
necessary consents, authorizations and licenses shall have first been duly
obtained by the Tenant (and/or its contractor or other persons doing the work
or
performing installations on behalf of Tenant) and given to
Landlord;
(f)
Tenant
or
any contractor, sub-contractor, materialmen or other employed by the Tenant
or
any other persons who will do the work or installations as aforesaid shall
be
fully covered by workmen’s compensation insurance and the certificate thereof
shall be furnished to the Landlord prior to the commencement of
any
work
by
such contractor, sub-contractor, materialmen or persons as aforesaid. Tenant
covenants and agrees to indemnify and hold Landlord harmless from any and all
claims for personal injury, death or property damage occasioned during the
progress or as a result of any or all of the work done as aforesaid in or about
the Premises.
44.
REPAIRS.
(a) Anything contained herein to the contrary notwithstanding, it is agreed
that
the Tenant shall be responsible for all non-structural repairs (and all
structural repairs to the extent same is necessitated as a result of the actions
or failure to act of Tenant, its employees, representatives, agents, successors,
assigns or invitees) and the repair, maintenance and replacement of the heating
system, air-conditioning units, elevator, electrical system, plumbing system
and
other mechanical systems servicing the Premises. Tenant covenants to keep the
Premises including but not limited to the heating system, air conditioning
units
elevator, electrical system, plumbing system and other mechanical systems in
good repair. Tenant shall also generally maintain the Premises including all
masonry work and landscaping and the interior and exterior of the Premises
(so
that it is free from refuse, debris and kept in a clean and orderly fashion).
Tenant shall notify Landlord prior to performing any structural repairs as
required herein, including, without limit, the replacement of any air
conditioning units, which structural repairs shall be subject to the prior
consent of Landlord, which consent shall not be unreasonably withheld. Except
as
provided herein, Landlord shall be responsible for the repair of the structural
portions of the Premises, including any repairs to the roof, provided that
Landlord shall not be required to (i) make any repairs caused by Tenant’s
failure to maintain the Premises; and/or (ii) repair, maintain or replace any
kitchen or bathroom fixtures.
(b)
All
maintenance, alterations, repairs and other work to be performed by either
party
shall be performed by it in good and workmanlike manner and
shall
conform to
all
building codes, ordinances, rules and regulations of any municipality or
governmental authority having jurisdiction thereof.
45.
INCREASE
IN INSURANCE. If by reason of Tenant’s use and occupancy or abandonment of the
Premises, or any other action on its part, the fire and/or liability insurance
rates for the building or any adjoining or nearby buildings owned by the
Landlord shall be increased, Tenant shall pay such increase as an item of
Additional Rent, upon demand by Landlord.
46.
INDEMNITY;
INSURANCE. (a) Each party shall indemnify, defend and hold harmless the other
party from and against any and all liability and damage and all such claims
and
demands of any kind and nature, including but not limited to reasonable counsel
fees arising out of any injury or damage however occurring which shall or may
occur on or about the
Premises
or adjacent streets, sidewalks, curbs and parking areas and from and against
any
matter or thing arising out of the breach of any covenant or condition of this
Lease or the carelessness, negligence or improper conduct of the indemnifying
party or its, agents, servants, employees or customers.
(b)
Tenant
shall provide and keep in full force and effect at Tenant’s sole cost and
expense for the benefit of the Landlord and Tenant, comprehensive public
liability insurance, acceptable to Landlord, with companies authorized to do
business in the State of New York in which the limits of coverage shall not
be
less than Ten Million Dollars ($10,000,000.00) combined single limit per
occurrence (the minimum limits of the comprehensive general liability policy
of
insurance shall in no way limit or diminish Tenant’s liability hereunder) and
property insurance, acceptable to Landlord, providing all fixtures, personalty
and equipment on, in or appurtenant to the Premises, including all additions
and
improvements with insurance against loss or damage by fire with all standard
extended coverage which limits of coverage shall not be less than Five Million
Dollars ($5,000,000.00) (the minimum limits of the comprehensive general
liability policy of insurance shall in no way limit or diminish Tenant’s
liability hereunder). Said policy or policies of insurance shall name the
Landlord, and any mortgagee of Landlord, as applicable, as an additional insured
and/or loss payee, as applicable, shall contain a waiver of subrogation against
Landlord and shall provide that said policy or policies may not be canceled
prior to the transmission to the Landlord of thirty (30) days’ written
notice.
(c)
Tenant
shall deliver certificates of insurance for all insurance required pursuant
to
this Lease to the Landlord prior to the beginning of the term of this Lease
and
thereafter not less than thirty days prior to the expiration of any such policy.
In the event Tenant shall fail to furnish any insurance herein required,
Landlord may (but is not obligated to) obtain said insurance and pay the premium
therefor and the premium so paid by Landlord shall be deemed Additional Rent
payable by Tenant on demand.
47.
CONDEMNATION.
(a) If
the
Premises shall be taken under the right of eminent domain in accordance with
the
terms of subparagraph (c) below, this Lease shall expire on the date of the
passing of title to the authorities so exercising such right and the Fixed
Rent
shall be apportioned as of that date. No part of any award shall belong to
the
Tenant except insofar as the Tenant may be entitled to a separate award that
does not in any manner diminish the award made to the Landlord, it being
distinctly understood and agreed that the Tenant shall have no claim against
Landlord or the condemning authority for the value of any unexpired term of
this
Lease. In the event of a condemnation, any award specifically made for the
value
of the trade fixtures shall belong to the Tenant.
(b)
If
the
Premises shall be condemned or taken in accordance with the terms of
subparagraph (d) below, all awards made to either compensate Landlord or Tenant
shall be paid to Landlord; Landlord shall promptly and at its sole cost and
expense to the extent of the award, restore the remaining portion of the
Premises or building in substantially the same condition and the Lease shall
continue effective in all respects, except as that there shall be a reduction
of
Fixed Rent in the ratio that the rent then applicable to the portion of the
Premises so taken bears to the current rent for the entire premises at the
time
of the taking. Nothing herein contained shall be deemed a waiver by Tenant
of
its right to claim and receive an award for the taking of its trade fixtures
and
equipment which right is herein specifically preserved .
(c)
If
such
partial taking results in a reduction of the floor area of the Premises by
more
than thirty-three (33%) percent, or if the Premises may not reasonably be used
for substantially the same purposes as prior to the taking, then in such event,
the provisions of paragraph (a) shall apply.
(d)
If
such
partial taking shall result in a reduction of the floor area of the Premises
by
thirty-three (33%) percent or less or if the Premises may reasonably be used
for
substantially the same purposes as prior to the taking, then the provisions
of
paragraph (b) above of this Rider shall apply.
48.
ASSIGNMENT.
(a) The
Tenant shall not assign or sublet this Lease without the express, written
consent of the Landlord which consent shall be in Landlord’s sole discretion.
(b) Any
subletting or assignment of this Lease shall be on the following terms and
conditions:
(1)
The
uses
and purposes shall be exactly as set forth herein;
(2)
Prior
to
entering into any sublease or assignment of the Premises, Tenant shall submit
the terms of the proposed subletting or
assignment,
the name of the proposed subtenant or assignee, financial references of the
proposed subtenant or assignee and such other information as to the
financial
responsibility and standing of the proposed subtenant or assignee as Landlord
may reasonably require together with a copy of the proposed sublease or
assignment;
(3)
In
the
event that Landlord consents to an assignment or sublease, fifty (50%) percent
of the amount of any rent, additional rent or other consideration required
to
be
paid
pursuant to the assignment or sublease which exceeds the rent, additional rent
or other consideration payable hereunder, shall be payable directly to
the
Landlord,
it being the
intent
of
the parties that the rents and additional rents hereunder shall be deemed
increased by the amount of such excess rents payable pursuant to the sublease
or
assignment. The sublessee or assignee shall deposit with the Landlord as
additional security an amount equal to one (1) months’ rent in effect at the
time of the sublease or assignment.
(c)
The
consent by the Landlord to any assignment or subletting shall not be deemed
to
release the Tenant from the within Lease or any of its obligations to fully
perform all of the terms and covenant contained herein.
(d)
If,
at
the time of such assignment and/or subletting, the Tenant is in default in
any
of the terms, covenants and conditions of the within Lease, the Landlord may
withhold and/or revoke its consent to such assignment or subletting and the
parties agree that this refusal shall not be deemed unreasonable, arbitrary
or
capricious.
(e)
The
proposed subtenant or assignee shall be required to execute in a form reasonably
satisfactory to Landlord or its attorneys, an agreement which shall obligate
it
to duly perform all of the Tenant’s covenants and obligations under the Lease,
including any accrued obligations at the time of the assignment or
subletting.
(f) The
assignee shall execute, in a form reasonably satisfactory to the Landlord,
an
assignment and assumption agreement. A copy of said assignment and assumption
agreement shall be forwarded to the Landlord within ten (10) days
thereof;
(g)
The
subtenant shall execute, in a form satisfactory to Landlord, a sublease, a
copy
of which shall be forwarded to Landlord within ten (10) days thereof.
(h)
Landlord
shall not be liable to the Tenant for monetary damages as a result of the
unreasonable delay or refusal to provide consent.
(i) That
the
effective date of the assignment or subletting may not be earlier than the
Commencement Date of the Term.
49. SUBORDINATION. This
Lease and all rights of Tenant hereunder are subject and subordinate (i) to
any
mortgage or deed of trust, blanket or otherwise (the “Permanent Mortgage”),
which does now or may hereafter affect the Premises (and which may also affect
other property), such mortgagee with respect to same being hereinafter referred
to as the “Superior Mortgagee” and (ii) to any and all increases, renewals,
modifications, consolidations, replacements and extensions of any such Permanent
Mortgage, and (iii) each underlying lease which may now or hereafter affect
all
or any portion of the Premises or any interest therein, such lessor with respect
to such lease, hereinafter referred to as the “Superior Lessor,” provided that
Landlord shall use reasonable commercial efforts to obtain a non-disturbance
agreement from any party to whom this Lease is subordinated. Tenant shall
execute, acknowledge and deliver any instrument reasonably requested by
Landlord, a Superior Lessor or Superior Mortgagee (including without limitation
subordination, lockbox and payment agreements) to evidence such subordination,
but no such instrument shall be necessary to make such subordination effective.
Tenant agrees that (a) Tenant shall attorn to the Superior Mortgagee, and (b)
any cancellation, surrender or amendment of this Lease without the prior written
consent of the Superior Mortgagee shall be voidable by the Superior
Mortgagee.
50.
LATE
CHARGE. In the event that the Tenant shall not have paid the Fixed Rent or
any
item of Additional Rent on or before ten (10) days of the date it is due, (the
“Grace Period”) then, Tenant shall pay a late charge equal to 3% of such rent.
Tenant shall also pay interest thereon from the expiration of the Grace Period
to the date of Landlord’s receipt thereof at the lesser of (i) 1% per month or
(ii) the maximum rate permitted by law. The demand for and collection of the
aforesaid late charges and interest shall in no way be deemed a waiver of any
and all other remedies that the Landlord may have under the terms of this Lease
by summary proceedings or otherwise. Tenant agrees this amount is for Landlord’s
costs related to such late payment, is reasonable, is not punitive and is not
intended to be a penalty.
51. TRIPLE
NET. (a) The rent specified in this Lease shall be “triple net” to Landlord in
each year, during the Term and any extension or modification thereof and the
parties hereto intend that Landlord shall receive all Fixed Rent and all
Additional Rent payable hereunder free and clear of any and all liability or
responsibility of Landlord for impositions, taxes, liens, charges or expenses,
offsets, or similar deductions of any nature whatsoever.
(b)
Tenant
shall pay all costs, expenses and damage which are attributable to Tenant or
the
ownership, use or possession of the Premises and which, except for the execution
of this Lease, would have been chargeable against the Premises or otherwise
payable by the Landlord and Tenant shall indemnify and hold Landlord harmless
against such expenses and obligations. Tenant shall pay, or cause to be paid
all
utility services rendered or furnished to the Premises, including but not
limited to heat, water, gas, air-conditioning and electric, and shall pay or
cause to be paid all fire protection, security protection, sewer treatment
facilities, sanitation, janitorial, landscaping, snow and garbage removal,
and
the like, together with all taxes levied or other charges on such utilities.
Tenant will be responsible for assuring that all billing statements for all
utilities will be mailed directly to Tenant for payment.
(c)
Tenant
understands and agrees that, except as provided otherwise herein, Landlord
is to
have no obligation whatsoever under this Lease or otherwise in respect of the
repair, operation, maintenance and/or replacement of the Premises or for the
quality or compliance with applicable law of its construction (or in either
case, the lack thereof) with all such obligations being those of the Tenant,
at
its sole cost and expense. Except as specifically and expressly set forth in
this Lease, Landlord is to furnish no improvements, equipment or fixtures of
any
kind, either on or to the interior or on or to the exterior of the Premises.
It
is agreed between the parties, that anything not expressly set forth herein
which must be done in, on or to the Premises in order to make the same ready
for
Tenant’s business, will be done and accomplished by Tenant at its own cost and
expense. The intent of the parties is that this Lease be “triple net” with no
expenditures required by Landlord in connection with Tenant’s use, operation or
maintenance of the Premises.
(d)
Notwithstanding
the foregoing, Landlord may perform such repairs and/or alterations at or to
the
Premises (i) to the extent same is not performed by Tenant hereunder, and the
cost of performing such work shall be charged against Tenant as Additional
Rent,
and (ii) as Landlord, in its sole discretion determines would improve or
increase the value of the Premises, so long as such work does not impair
Tenant’s ability to use the Premises as provided for herein.
52. SIGNS. (a)
Tenant
shall not display, erect or affix any lettering, signs, posters, streamers,
plaquerts or any other like advertising media on the windows or exterior of
the
Premises or upon the building or buildings at which they form a part without
the
Landlord’s prior written approval, which approval shall not be unreasonably
withheld delayed or conditioned.
(b)
Tenant
shall submit to Landlord, with its request for permission to erect or install
any sign, lettering or like advertising media, complete sign drawings and
specifications or prior approval.
(c)
Upon
obtaining approval of the Landlord, the approved sign shall be installed by
the
Tenant at its own cost and expense and shall at all times be in total compliance
with all laws, rules, regulations, ordinances or requirements of any
governmental authority, municipality or agency having jurisdiction
thereof.
53. ARMS-LENGTH.
Landlord and Tenant acknowledge that this Lease is the product of an arms length
negotiation engaged between Landlord, Tenant and their respective attorneys
with
each party contributing to the final instrument. In consequence thereof, should
any dispute arise involving the construction or interpretation of this Lease,
no
presumption or inference shall be drawn against one party by the
other.
54.
ATTORNEYS’
FEES, COUNTERCLAIMS AND JURY WAIVER. (a) Tenant shall, in addition to all court
costs, expenses or fees, pay to Landlord, as Additional Rent reasonable
attorney’s fees, costs, expenses or disbursements incurred by the Landlord in
connection with any breach or default by Tenant or to protect or preserve any
of
Landlord’s rights hereunder or in any action, proceeding, summary proceeding or
arbitration arising out of this Lease or the Landlord-Tenant relationship.
These
items shall be deemed “Additional Rent” and shall be due and payable when
incurred by Landlord and may be includable in any summary proceeding or other
action. TENANT WAIVES THE RIGHT TO ASSERT ANY COUNTERCLAIMS OR SET OFFS IN
A
SUMMARY PROCEEDING, AND EACH PARTY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
IN
CONNECTION WITH THIS LEASE. In the event of litigation by a party hereto to
enforce its rights hereunder, the prevailing party shall be entitled to recover
its reasonable attorney's fees, costs and disbursements.
55.
PLATE
GLASS. Tenant,
at its own cost and expense, shall maintain plate glass insurance for the
Premises for and in the name of the Landlord.
56.
COLLECTION
AGAINST LANDLORD. Tenant agrees that it shall look solely to the estate and
property of Landlord in the land and buildings comprising the building for
the
collection of any judgment (or other
judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms, covenants and conditions of this
Lease to be observed or performed by Landlord; and no other assets of the
Landlord or any partner, member, owner, stockholder or other principal
of
Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant’s remedies.
57.
UNCOLLECTED
FUNDS. In the event that any payment by the Tenant of Fixed Rent or Additional
Rent shall be dishonored for any reason whatsoever, including but not limited
to
“uncollected funds”, “insufficient funds”, etc., the Landlord shall, thereafter,
have the right to insist that the replacement payment shall be made by certified
check, bank check or cash.
58. WAIVER.
(a) The
failure of the Landlord to insist upon strict performance of any term, covenant
or condition to be performed on the part of the Tenant, shall not be deemed
or
construed to constitute a waiver thereof, or consent by the Landlord to any
future performance.
(b)
The
acceptance by the Landlord of any item of Fixed Rent or Additional Rent, with
notice, whether constructive or actual, of any default on the part of the Tenant
shall not be deemed a waiver, forgiveness or condonation of said default on
the
part of the Landlord.
59.
MECHANIC’S
LIENS. The Landlord shall not be liable for any labor or materials furnished
or
to be furnished to the Tenant and no Mechanic’s or other liens for any such
labor or materials shall attach to or affect the interest of the Landlord in
and
to the Premises. If any Mechanic’s Lien is filed against the Premises, based on
any act or interest of the Tenant or anyone claiming through the Tenant, its
Subtenants or assigns, or if any security agreement is filed for or affecting
any materials, machinery or fixtures used in the construction, repair or
operation by the Tenant, the Tenant shall immediately take such action by
bonding, deposit or payment as will remove the lien or security interest. If
the
Tenant has not removed the lien or security interest within fourteen (14) days
after notice to the Tenant, the Landlord may in its sole option (but is not
obligated to), pay the amount of the lien or security interest or discharge
the
same by deposit and the amount so paid or deposited with interest thereon shall
be deemed Additional Rent under this Lease and shall be payable immediately
upon
demand. In addition to the remedies previously set forth and as may elsewhere
be
set forth in the written Lease, failure on the part of the Tenant to discharge,
bond or otherwise remove the lien or security interest within fourteen (14)
days, shall be deemed a default hereunder. In such event, the Lease may then
be
terminated pursuant to its terms.
60. ENTIRE
AGREEMENT. This Lease contains the entire agreement between the parties and
all
prior agreements, conversations, set ups, or representations, if any, shall
be
deemed to have merged herein. Tenant is not relying upon representations or
agreements other than those contained in this Lease. This Lease may not be
changed, altered or modified unless in writing, signed by each of the parties
hereto.
61. UNENFORCEABILITY.
If any term or provision of this Lease or its application to any person or
circumstances is to any extent declared to be invalid or unenforceable by a
court of competent jurisdiction, the remainder of this Lease, or the application
of such term or provision to persons or circumstances, other than those as
to
which is held invalid or unenforceable shall not be affected thereby and each
term and provision shall be valid and enforced to the fullest extent permitted
by law.
62.
AS-IS.
Tenant represents and warrants to the Landlord that it has inspected the
Premises and is fully familiar with the condition thereof. NEITHER LANDLORD
NOR
ITS AGENT MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE
PHYSICAL CONDITION OF THE PREMISES, BUILDING OR LAND UPON WHICH IT IS ERECTED,
AND TENANT AGREES TO ACCEPT THE PREMISES IN “AS IS” CONDITION. Landlord makes no
representation that Tenant’s use of the Premises is in accordance with the
Certificate of Occupancy with respect to the Premises.
63.
NOTICES.
Any notice required to be served herein, shall be deemed properly served, if
sent registered, or certified mail, return receipt requested, or by a
recognized, reputable overnight courier service, as follows:
If
to
Landlord to: 0
XXXX
XXXXXX REALTY LLC
___________________________
____________,
New York
Attention:
With
a
copy to Landlord’s attorneys:
Moritt,
Hock, Hamroff & Xxxxxxxx, LLP
000
Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxx, Esq.
If
to
Tenant: ALLIANCE
DISTRIBUTORS HOLDING INC.
_____________________
_____________________
With
a
copy to Tenant’s attorneys:
Xxxxx
Xxxxxx, Esq.
000
Xxxxx
Xxxxxx, 00xx
xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
64. HOLDING-OVER
AND POSSESSION. Any holding over after the expiration of the term of this Lease
or any renewal hereof shall be construed to be a tenancy from month-to-month
at
a minimum annual rent equal to twice the Fixed Rent (prorated on a monthly
basis) then being paid by Tenant; together with a sum equal to all Additional
Rent payable hereunder for each month or part thereof during which the Tenant
remains in possession of the Premises beyond the expiration of the term hereof
and said tenancy shall otherwise be on the terms, covenants, conditions, and
provisions specified in this Lease, to the extent that the foregoing shall
be
applicable.
65.
NOT
AN
OFFER. Submission of this document for examination or signature by Tenant does
not constitute an offer for a lease by Landlord, and it is not to be effective
as a lease or otherwise until execution and delivery by both Landlord and
Tenant.
66.
FURTHER
ASSURANCES. Each
of
the parties hereto, without cost to the other, shall at any time and from time
to time hereafter, execute and deliver any and all further instruments and
assurances and perform any acts that the other party may reasonably request
for
the purpose of giving full force and effect to the provisions of this
agreement
67. HEADINGS.
Headings are for convenience only, and are not meant to confer any rights or
obligations on the parties hereto.
68.
COUNTERPARTS
AND SIGNATURES. The printed form of Lease and the Rider may be signed by the
undersigned in counterparts. Facsimile signatures shall have the same effect
as
originals.
69. USE
OF
FACILITIES BY XXXXXXX XXXXXXXXX. Notwithstanding anything in this Lease to
the
contrary, for so long as this Lease is in effect, Xxxxxxx Xxxxxxxxx will have
exclusive use of the office, kitchen and dining room that he utilized
immediately prior to the Commencement Date, and he will retain the right to
use
the other facilities in the Premises (including the conference room when not
in
use by Tenant) for his personal business interests.
70.
ENVIRONMENTAL.
Landlord represents and warrants that it and, during Landlord's ownership,
its
tenants, have, prior to the Commencement Date, complied strictly and in all
respects with the applicable laws, statutes, ordinances, permits, orders,
decrees, guidelines, rules, regulations and orders pertaining to health or
the
environment (“Applicable
Environmental Laws”),
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”)
and
the Resource Conservation and Recovery Act (“RCRA”),
as
each of the foregoing may be amended from time to time. Tenant, and its agents,
contractors, employees and invitees, shall comply strictly and in all respects
with the Applicable Environmental Laws, including without limitation CERCLA
and
RCRA, as each of the foregoing may be amended from time to time. Each party
does
hereby, for itself and its heirs, legal representatives, successors and assigns
agree to and hereby does indemnify, defend and hold harmless the other party,
and its heirs, legal representatives, successors and assigns, from any and
all
liabilities, assessments, suits, damages, costs and expenses, attorneys’ fees
and judgments related to or arising out of (a) the breach of any of the
agreements of the indemnifying party under this section, (b) the handling,
installation, storage, use, generation, treatment or disposal by the
indemnifying party of Hazardous Materials (as hereinafter defined), including
any cleanup, remedial, removal or restoration work required by the Applicable
Environmental Laws which is necessitated by indemnifying party’s violation of
the provisions of this Section or (c) the assertion of any lien or claim
upon the Premises pursuant to the Applicable Environmental Laws which is
instituted due to any action of the indemnifying party; provided however, as
between Landlord and Tenant, in connection with any such indemnification arising
out of any event occurring after the Commencement Date, unless the event can
be
shown to be the action or omission of the Landlord, the Tenant shall indemnify
the Landlord in connection therewith. The covenants and agreements of Tenant
under this section shall survive the expiration or termination of this Lease.
As
used in this Lease, the term “Hazardous
Materials”
means
any flammables, explosives, radioactive materials, asbestos-containing
materials, petroleum products, the group of organic compounds known as
polychlorinated byphenyls and other hazardous waste, toxic substances or related
materials, including without limitation, substances defined as hazardous
substances, hazardous materials, toxic substances or solid waste in CERCLA,
the
Hazardous Materials Transportation Act and RCRA, as each of the foregoing may
be
amended from time to time.
71. BROKER.
Each party represents and warrants to the other that no real estate broker
brought about this transaction. Each party agrees to indemnify (the
“Indemnifying Party”) and hold the other harmless from and against all causes of
action, liabilities and costs (including reasonable attorney's fees) arising
out
of a claim for a commission by any other broker purporting to have acted on
behalf of the Indemnifying Party.
72.
LANDLORD’S AUTHORITY. Landlord represents and warrants that it is the sole owner
of the land, buildings and equipment described on Appendix A attached hereto,
together with all buildings, improvements, facilities and fixtures located
on
the land, and any easements, rights of access and other property rights
necessary to allow Tenant unobstructed use and occupancy of the Premises.
Landlord represents and warrants that it has full right and authority to lease
the Premises to Tenant and to otherwise enter into this Lease on the terms
and
conditions set forth herein, and that the provisions of this Lease do not
conflict with or violate the provisions of existing agreements between the
Landlord and third parties.
73. RIGHT
OF
FIRST REFUSAL. Should Landlord during the Term enter into an agreement to sell
the Premises, or any portion thereof, to a non-affiliated third party (“Sales
Agreement”), Landlord shall provide to Tenant a written notice of intent to sell
(“Notice”) with a copy of the Sales Agreement. Tenant shall have and may
exercise an option to acquire the Premises, or the portion thereof subject
to
the Sales Agreement, on the same terms and conditions, other than as to the
identity of the Tenant and date for closing, as are set forth in the Sales
Agreement. If Tenant does not within 30 days after receiving the Notice and
copy
of the Sales Agreement give Landlord written notice of Tenant’s intention to
exercise such option, then subject to and as provided by the Sales Agreement
Landlord may sell the Premises or portion thereof covered by the Sales Agreement
by no later than the 150th day after receipt by Tenant of the Notice and copy
of
the Sales Agreement. If Landlord does not timely so sell the Premises or varies
the material terms of the Sales Agreement, Landlord shall again comply with
the
terms of this Section 15 as if no Notice had ever been given. If Tenant timely
notifies Landlord of its intent to exercise such option, then at such time
as
Tenant may specify, but no later than 60 days following receipt by Landlord
of
such notice from Tenant, and at such place within the city or town where the
Premises is located as Landlord may specify, or such other place and time and
Landlord and Tenant may agree, Tenant shall exercise its option by purchasing,
and Landlord shall sell to Tenant, the Premises or portion thereof subject
to
the Sales Agreement. In the event that Tenant exercises such option but fails
to
timely close (other than because of default by Landlord), then this Section
73
and the right of first refusal hereunder are terminated and of no further
effect.
74. RIDER
CONTROLS. In the event of a conflict between the terms of this Rider and the
printed form of the Lease to which the Rider is attached, the terms hereof
shall
govern.
0
XXXX
XXXXXX XXXXXX XXX, Xxxxxxxx
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
