EXHIBIT 10.27
THIS LEASE AGREEMENT (hereinafter referred to as "Lease"), made as of
this 6th day of January, 1997, between ENVIRO-ZYME INTERNATIONAL, INCORPORATED,
X.X. Xxx 000, Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Landlord"), and XXXXXXXXX & XXXX, INCORPORATED, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "Tenant").
WITNESSETH, that the Landlord hereby leases to the Tenant the
following premises: approximately 10,600 square feet in the middle portion
of the building (SEE Exhibit A attached). The space has a single office of
approximately 10 feet by 15 feet, providing a reasonably secure location for
computers, files and other office equipment. The space also has 2 bathrooms;
one approximately 5 feet by 7 feet consisting of a sink and water closet, the
second is approximately 10 feet by 15 feet consisting of a sink, a deep sink, a
water closet and a urinal.
The leased premises are a portion of the building located on the east
side of route 52 in the Town of Kent, County of Xxxxxx and State of New York,
shown on the Tax Map as Xxxxxxx 00, Xxxxx 0, Xxx 00 (hereinafter referred to as
"Premises"). The Premises are to be used for a retail wine store and mail order
distribution of wines.
This lease is for a term commencing March 1, 1997 and terminating on
February 28, 2000, with an option for an additional three (3) year term as set
forth below:
1. (a) The annual rent is Ninety Seven Thousand Three Hundred Five
and 94/100 ($97,305.94) Dollars, payable in monthly installments of Eight
Thousand One Hundred Eight and 83/100 ($8,108.83) Dollars, in advance, on the
first day of each month of the term (provided that Tenant shall not be deemed to
be in default under this Lease unless Tenant fails to pay such rent within ten
days after receiving written notice of such default from the Landlord).
The rent includes taxes, electricity and heat. Any required air
conditioning and/or refrigeration equipment is the responsibility of the Tenant
and Tenant is to maintain a separate electric meter in the name of the Tenant.
Tenant is to notify Landlord, in advance, of such work.
(b) The Tenant has the option to renew and extend the term of
this Lease for an additional three (3) year term by notifying the Landlord, in
writing, by certified mail, return receipt requested, sent to the address set
forth herein, or at such address as the Landlord may designate, at least ninety
(90) days prior to the expiration of the first term. The annual rent for the
additional three (3) year term shall be computed by taking the first term's
annual rent ($97,305.94) plus a cumulative increase calculated by taking the
increase in the New York/New Jersey Consumer Price Index above the March 1, 1997
Index and multiplying it by the first term's annual rent ($97,305.94).
(c) That during the first year of this lease only (March 1, 1997
to February 28, 1998) the Tenant may terminate this lease upon 90 days written
notice to the Landlord by :
(1) Forwarding said Notice of Termination at least 90 days prior to the date of
termination to the Landlord by certified mail, return receipt requested, sent to
the address set forth herein.
(2) Forwarding to the Landlord with said Notice of Termination a certified or
bank check in the sum of $48,652.98 to the order of the Landlord as a
termination fee.
Upon receipt of the above by the Landlord said lease shall be deemed terminated
and of no further force and effect as of the date of termination set forth in
said Notice of Termination.
2. (a) The Tenant shall take good care of the Premises and shall,
at the Tenant's own cost and expense, make all interior repairs to the premises.
At the end or other expiration of the Lease, the Tenant shall deliver up the
Premises in good order or condition, damage by fire and other casualty and the
elements and normal wear and tear excepted. Failure on Tenant's part to make
such repairs shall give Landlord the right, after reasonable notice, to enter
upon the Premises for the purpose of making repairs and the cost thereof shall
be borne by the Tenant and shall be chargeable as additional rent on the next
rental due date.
(b) If the demised premises or any part thereof consist of a
store, or of a first floor, or of any part thereof, the Tenant will keep the
sidewalk and curb in front thereof clean at all times and free from snow and
ice.
(c) The Landlord will be responsible for exterior property
upkeep, normal maintenance and structural repairs. Landlord will arrange for
ground maintenance at the Landlord's expense.
3. The Tenant shall comply with all Statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State and Local Governments
and of any and all their Departments and Bureaus applicable to the Premises, for
the correction, prevention, and abatement of nuisances or other grievances, in,
upon, or connected with the Premises during the term of the Lease, and shall
also
promptly comply with and execute all rules, orders and regulations of the New
York Board of Fire underwriters, or any other similar body, at the Tenant's own
cost and expense.
4. The Tenant, its heirs, executors or administrators shall not
assign this Lease, or sub-let or sub-lease the Premises, or any part thereof, or
make any alterations on the Premises, without the Landlord's consent in writing;
or occupy, or permit or suffer the same to be occupied for any business or
purpose deemed disreputable or extra-hazardous on account of fire, under the
penalty of damages and forfeiture, In the event Tenant obtains necessary
approvals from the Landlord and does sub-let, sub-lease or assign this Lease,
Tenant shall nevertheless be liable for the performance of Tenant's obligation
should any such sub-tenant or assignee default in the performance thereof.
5. In the case of damage, by fire or other cause, to the building in
which the Premises are located, if the damage is so extensive as to amount
practically to the total destruction of the Premises or of the building, or if
the Landlord shall within a reasonable time decide not to rebuild, the Lease
shall cease and come to an end, and the rent shall be apportioned to the time of
the damage. In all other cases where the Premises are damaged by fire. The
Landlord shall repair the damage, if the damage has rendered the Premises
untenantable, in whole or in part, and there shall be an apportionment of the
rent until the damage has been repaired. In determining what constitutes
reasonable dispatch consideration shall be given to delays caused by strikes,
adjustment of insurance and other causes beyond Landlord's control.
6. The Tenant agrees that the Landlord and the Landlord's agents and
other representatives shall have the right to enter into and upon the Premises,
or any part thereof, at all reasonable hours for the purpose of examining the
same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof.
7. Within the final six months of the term or any extension of the
term, the Tenant agrees to permit the Landlord or the Landlord's agent to show
the Premises to persons wishing to rent or purchase the same; and the Tenant
further agrees that on and after the sixth month, next preceding the expiration
of the terms or extended term, the Landlord or the Landlord's agents shall have
the right to place notices on the front of the Premises, or any part thereof,
offering the premises "To Let" or "For Sale", and the Tenant hereby agrees to
permit the same to remain thereon without hindrance or molestation.
8. If the Premises, or any part thereof, shall be deserted or become
vacant during said term for a period of more than thirty consecutive days, and
if any default be made in the performance of any of the convenants herein
contained, beyond the expiration of applicable notice, grace and cure periods,
the Landlord or representatives may re-enter the Premises by summary proceedings
or other wise, and remove all persons therefrom without being liable to
prosecution therefor, and the Tenant shall pay at the same time as the rent
becomes payable under the terms hereof a sum equivalent to the rent reserved
herein, and Landlord agrees to use reasonable efforts to relet the Premises and
in connection therewith reserves the right to rent the Premises for a longer
period of time than fixed in the Lease without releasing the original Tenant
from any liability, applying any moneys collected, first to the expense of
resuming or obtaining possession, second to restoring the Premises to a rentable
condition, and then to the payment of the rent and all other charges due and to
become due to the Landlord, any surplus to be paid to the Tenant, who shall
remain liable for any deficiency.
9. Landlord may replace, upon ten days written notice to Tenant, at
the expense of Tenant, any and all broken glass in Tenant's area. This consists
of the windows on the garage door in the loading area. Bills therefor shall be
rendered by Landlord to Tenant at such times as Landlord may elect, and shall be
due from, and payable by Tenant within fifteen days after receipt by Tenant, and
the amount thereof shall be deemed to be, and be paid, as additional rent.
Damage and injury to the Premises, caused by the carelessness, negligence or
improper conduct on the part of the Tenant or the Tenant's agents or employees
shall be repaired as speedily as possible by the Tenant at the Tenant's own cost
and expense.
10. The Tenant shall neither encumber nor obstruct the sidewalk in
front of, or entrance to, said premises, nor allow the same to be obstructed or
encumbered in any manner.
11. The Landlord is exempt from any and all liability for any damage
or injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak from flow from or into any part of
the Premises or from any damage or injury resulting or arising from any other
cause of happening whatsoever unless said damage or injury be caused by or due
to the negligence or willful misconduct of the Landlord.
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12. If default be made in any of the covenants herein contained and
in the case of Tenant's monetary obligations under this Lease such default
continues for a period of ten days after Tenant receives written notice thereof
from Landlord and in the case of Tenant's non-monetary obligations under this
Lease such default continues for a period of thirty days after Tenant receives
written notice thereof from Landlord, then it shall be lawful for the Landlord
to re-enter the Premises, and the same to have again, re-possess and enjoy.
13. This instrument shall not be a lien against the Premises in
respect to any mortgages that are now on or that hereafter may be placed against
the Premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this Lease,
irrespective of the date of recording and the Tenant agrees to execute any such
instrument, without cost, which may be deemed necessary or desirable to further
effect the subordination of this Lease to any such mortgage or mortgages,
provided that as a condition to Tenant's subordination of the Lease and
execution of an instrument confirming such subordination, the holder of the
mortgage agrees for itself and any purchaser or transferee in a foreclosure sale
or by deed in lieu of foreclosure to not disturb Tenant's right of possession
under this Lease and agrees to recognize all the terms and condition of this
Lease.
14. The Tenant has this day deposited with the Landlord the sum of
$3,161.08 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 thirty 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
vend for the benefit of the Tenant and 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 shall be placed in an interest
bearing account in the name of the Landlord for the duration of the Lease, with
the interest accruing to the benefit of the Tenant. Until the security deposit
is used or returned to the Tenant, the interest generated shall become a part of
the security deposit. If the Landlord is required to pay incomes taxes on the
interest generated by the security deposit, the Landlord will use the proceeds
from the security deposit.
15. The security deposited under this Lease shall not be mortgaged,
assigned or encumbered by the Tenant without the written consent of the
Landlord.
16. It is expressly understood and agreed that in case default be
made in the payment of the rent or any part thereof beyond the expiration of
applicable notice, grace and cure periods as herein specified, or if, without
the consent of the Landlord, the Tenant shall sell, assign, or mortgage this
Lease or if default be made in the performance of any of the covenants and
agreements in this Lease contained on the part of the Tenant to be kept and
performed beyond the expiration of applicable notice, grace and cure periods, or
if the Tenant shall fail to comply with any of the statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State and Local Governments
or of any and all their Departments and Bureaus, applicable to the Premises, or
if their Departments and Bureaus, applicable to the Premises, or if the Tenant
shall file, or there be filed against Tenant a petition in bankruptcy or the
Tenant makes an assignment for the benefit of creditors or take advantage of any
insolvency act, the Landlord, may if the Landlord so elects, at any time
thereafter terminate this Lease and the term hereof, on giving to the Tenant 15
days' notice in writing of the Landlord's intention so to do, and this Lease and
the term hereof shall expire and come to an end on the date fixed in such notice
as if the said date were the date originally fixed in this lease for the
expiration hereof. Such notice may be given personally or by first class mail
to the Tenant addressed to the Premises.
17. The Tenant understands that the Premises are serviced by a well
and septic system. if repairs and maintenance are necessary, the Tenant shall
pay a pro rata share based on the proportion the Tenant's leased area is to the
whole. The Landlord warrants that the well and septic system are in good
operating condition as of the date of this Lease.
18. The Tenant will not nor will the Tenant permit undertenants or
other persons to do anything in the Premises, or bring anything into the
Premises or permit anything to be brought into the Premises or to be kept
therein, which will in any way increase the rate of fire insurance on the
Premises, nor use the Premises or any part thereof, nor suffer or permit their
use for any business or purpose which would cause an increase in the rate of
fire insurance on said building, and the Tenant agrees to pay on demand any such
increases. Landlord is aware that the Tenant will store wine on the Premises
and the Landlord has consulted his insurance agent and agrees that no additional
increase in the insurance premiums will be required of Tenant with respect to
Tenant's use and occupancy of the Premises.
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19. The failure of the Landlord to insist upon a strict performance
of any of the terms, conditions and covenants herein, shall not be deemed a
waiver of any rights or remedies that the Landlord may have, and shall not be
deemed a waiver of any subsequent breach or default in the terms, conditions and
covenants herein contained. This Lease may not be changed, modified, discharged
or terminated orally.
20. If the whole or any part of the Premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose the
Landlord will immediately notify the Tenant and the Tenant will have 120 days to
find a new premises, then and in the event, the term of this Lease shall cease
and terminate from the date of title vesting in such proceeding and Tenant shall
have no claim against Landlord for the value of any unexpired term of the Lease.
21. If after default in payment of rent or violation of any other
provision of this Lease, or upon the expiration of the Lease, the Tenant moves
out or is dispossessed and fails to remove any trade fixtures or other property
prior to such said default, removal, expiration of Lease, or prior to the
issuance of the final order or execution of the warrant, then and in that event,
the said fixtures and property shall be deemed abandoned by the Tenant and shall
become the property of the Landlord after ten days notice in writing to the
Tenant.
22. In the event the relation of the Landlord and Tenant may cease or
terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this Lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the Premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference between the rent reserved and the
rent collected and received, if any, by the Landlord during the remainder of the
unexpired term, such difference or deficiency between the rent herein reserved
and the rent collected if any, shall become due and payable in monthly payments
during the remainder of the unexpired term, as the amounts of such difference or
deficiency shall from time to time be ascertained; and it is mutually agreed
between Landlord and Tenant that the respective parties hereto shall and hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the Tenant's use or occupancy of the
Premises, and/or any claim of injury or damage.
23. 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 Landlord
is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in making any
repairs, additions, alterations 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 a
National Emergency or in connection with any rule, order or regulation of any
department of subdivision thereof of any governmental agency or by reason of
the condition of supply and demand which have been or are affected by war or
other emergency.
24. No diminution or abatement of rent, or other compensation, shall
be claimed or allowed for inconvenience or discomfort arising from the making or
repairs or improvements to the Premises or to the building of which the Premises
are a part, or to its appliances or to the equipment, nor for any space taken to
comply with any law, ordinance or order of a governmental authority. In respect
to the various "services", if any, herein expressly or impliedly agreed to be
furnished by the Landlord to the Tenant, it is agreed that there shall be no
diminution or abatement of the rent, or any other compensation, for interruption
or curtailment of such "service" when such interruption or curtailment shall be
due to accident, alterations or repairs desirable or necessary to be made or to
inability or difficulty in securing supplies or labor for the maintenance of
such "services" or to some other cause, not gross negligence on the part of the
Landlord. No such interruption or curtailment of any such service shall be
deemed a constructive eviction. The Landlord shall not be required to furnish,
and the Tenant shall not be entitled to receive any such "services" during any
period wherein the Tenant shall be in default beyond the expiration of
applicable notice, grace and cure periods in respect to the payment of rent.
Neither shall there be any abatement or diminution of rent because of making
repairs, improvements or decorations to the Premises after the date above fixed
for the commencement of the term, it being understood that rent shall, in any
event, commence to run at such date so above fixed.
25. Landlord shall not be liable for failure to give possession of
the Premises upon commencement date by reason of the fact that Premises are not
ready for occupancy or because a prior Tenant or any other person is wrongfully
holding over or is in wrongful possession, or for any other reason. The rent
shall not commence until possession is given or available, but the term herein
shall not be extended.
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26. In the event there are violations on the Premises, Tenant shall
immediately take the necessary steps to correct the said violations. In the
event the Tenant fails to correct the said violations, the Landlord may at its
option, after fifteen (15) days written notice to the Tenant, cause the said
changes to be made and add the cost thereof to the next monthly rent due from
the Tenant.
27. (a) The Tenant covenants that the Tenant will, at all times
during the term of this Lease and at the Tenant's own cost and expense, in the
name and for the benefit of the Landlord and the Tenant, the Mortgage/Mortgagees
(hereinafter defined), maintain comprehensive general public liability insurance
against loss by reason of bodily injury, including death, and personal injury in
the amount of at least $2,000,000.00 for injury or death in anyone occurrence
and in the amount of at least $100,000.00 against loss by reason of property
damage incurred either in the interior of the Premises, or any portion thereof
or upon and in or about the Premises. The term "Mortgagee/Mortgagees" shall
mean any Federal, State or Local government authority advancing funds to
Landlord in exchange for a security interest in the Premises or the building or
buildings of which the Premises are a part.
(b) The Tenant agrees to fully indemnify the Landlord for loss
of any Tenants property due to any cause, including fire or theft.
(c) At all times during the term of this Lease, Tenant will at
its own cost and expense, provide and keep in force workmen's compensation
insurance covering all of Tenant's employees working in the premises, disability
insurance, and any other insurance now or hereafter required by Federal, State
or Municipal authorities or any of their departments having jurisdiction
thereof.
(d) All insurance required under this paragraph "27." shall be
in form satisfactory to and must be approved by the Landlord and be carried by
responsible insurance companies qualified to do business in New York and in good
standing therein. The Tenant agrees to furnish and deliver to the Landlord
policies or certificates evidencing all insurance required under this Lease, at
or prior to the commencement of the term set forth herein, with, if requested,
evidence of the payment of premiums, and to deliver to the Landlord renewal
policies or certificates at least thirty (30) days before the expiration of the
insurance which such policies are to renew. All such policies will not be
canceled until after ten (10) days' written notice to the Landlord. In the event
of default by the Tenant in having such policies of insurance issued and
deposited, the Landlord may cause said policies to be issued at the expense of
the Tenant. On default by the Tenant in payment of any of the premiums on such
policies when payment thereof shall be due and payable, whether said insurance
is procured by the Landlord or by the Tenant, the Landlord may thereupon pay the
same and the Tenant agrees on demand to repay to the Landlord the money so paid
together with interest thereon at the rate of nine (9%) percent per annum from
the date or dates of payment by the Landlord, as additional rent.
(e) To the extent not prohibited by New York General Obligations
Law 5-321, Tenant hereby indemnifies and holds Landlord, its officers,
directors, agents and employees, from and against any and all damages, expenses,
fees (including reasonable attorneys' fees), liabilities, losses and demands
(just or unjust), by reason of personal injury, wrongful death or property
damage arising from, out of or in connection with Tenant's use of the Premises.
(f) In the event of any loss or destruction of the Premises or
part thereof by condemnation or fire or other casualty, any rebuilding or repair
shall have the prior approval of the Landlord.
(g) If the Tenant and Landlord agree that any additional
insurance becomes necessary to reasonably protect Landlord's interest in the
Premises, then, upon request of Landlord the Tenant shall obtain any such
insurance from a reputable insurer. Failure of Tenant to obtain any such
insurance shall give Landlord the right to obtain and charge the cost thereof to
Tenant as additional rent which shall be due and payable on the next rental
payment due.
(h) Any policy of insurance acquired by Tenant in carrying out
Tenant's obligations under this Lease or otherwise in any way connected with the
Premises shall include a waiver of subrogation in favor of Landlord.
28. Tenant shall have all garbage and refuse removed from the
Premises at its own expense and shall not allow garbage, trash or rubbish to
accumulate in or about the Premises. No burning of papers or rubbish in and
about the Premises is permitted. No bottles, crates, boxes, baskets or other
containers shall be allowed to be stacked, placed or accumulated in and about
the entrance and the exit or the exterior of the Premises. However, Tenant shall
have the right to store garbage within the Premises in covered metal containers.
29. Tenant shall have the Premises thoroughly cleaned by a licensed
exterminator at least once every six (6) months.
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30. No sign, illumination or advertisement of any nature shall be
permitted in any show window, on the door, or on or about the front or the
exterior of the Premises unless the Tenant has first secured written consent
therefor in each instance from the Landlord. If the Tenant violates the terms
of this paragraph, the Landlord shall have the right, without notice to the
Tenant, to remove any such sign, illumination or advertisement, without
incurring any liability by reason of such action, and the Landlord shall have
all of the remedies provided in this Lease for a default by the Tenant. All
interior signs visible from outside the Premises shall be in harmony with the
Landlord's overall plan for the building or buildings of which the Premises may
be a part.
31. Tenant has inspected the Premises and is satisfied as to the
condition thereof. Landlord gives no warranties nor makes any representations
as to the Premises or condition thereof. Within 72 hours prior to the
commencement of the term of this Lease, Tenant shall inspect the Premises and
shall notify Landlord in writing of any discrepancies in the condition of the
Premises on the date of this Lease. In the event of any discrepancy the
commencement of the term of this Lease shall be postponed until Landlord can
make any repairs or replacements of that part of the Premises contributing to
the existence of any such discrepancies.
32. The parties acknowledge and agree that the loading dock and front
entrance railing was damaged by Tenants and/or Tenant's agents prior to the date
hereof and that such damage will be repaired prior to the term of this Agreement
or extension thereof.
33. Premises shall be delivered broom clean and free of debris.
And the Landlord covenants that the Tenant on paying the rent, and
performing the covenants in this agreement shall peacefully and quietly have,
hold and enjoy the Premises for the term, provided however, that this covenant
shall be conditioned upon the retention of a leasehold interest in the Premises
by the Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and
agreements contained in this Lease shall be binding upon the parties hereto and
upon their respective successors, heirs, executors and administrators.
IN WITNESS WHEREOF, The parties have interchangeable set their hands
and seals (or caused these presents to be signed by their proper corporate
officers and caused their proper corporate seal to be hereto affixed) this 6th
day of January, 1997.
XXXXXXXXX & XXXX, INC. ENVIRO-ZYME INTERNATIONAL, INC.
BY: /S/ XXXXX X. XXXXXX BY: /S/ XXX XXXXXXXXXXX
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Name: XXXXX X. XXXXXX Name: XXX XXXXXXXXXXX
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TITLE: VICE PRESIDENT AND CFO TITLE: PRESIDENT
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