Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Pre-Effective Amendment to Registration of 73 371K
Securities by a Small-Business Issuer
2: EX-4.1 Specimen Stock Certificate 2 8K
3: EX-10.1 Stock Option Plan 9 38K
4: EX-10.7 Standard Form of Loft Lease 28 124K
5: EX-23.1 Consent of Independent Public Accountants 1 5K
6: EX-99.1 Consent 2 6K
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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
(C)Copyright 1982. All rights Reserved.
Reproduction in whole or in part prohibited.
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AGREEMENT OF LEASE, made of this 13th day of September, 1996 Between CMC MIC
HOLDING COMPANY, L.L.C., having an office at 88 Tenth Avenue, New York, New York
10011 party of the first part, hereinafter referred to as "Landlord" or "Owner,"
and RONNYBROOK FARM DAIRY, INC., party of the second part, a New York State
Corporation having an office at Ancramdale, New York, hereinafter referred to as
"Tenant".
WITNESSETH: Owner hereby leases Tenant and Tenant hereby hires from Owner a
portion of the ground floor (the "Demised Premises") as shown on Exhibit A
attached hereto, in the series of buildings comprising the two (2) square blocks
bound to the north by 16th Street, to the south by 15th Street, to the east by
Ninth Avenue and to the west by Eleventh Avenue (but intersected by Tenth
Avenue), which series of buildings is known as Around The Clock Center and by
the street address 75 Ninth Avenue/85 Tenth Avenue, New York, New York (the
"Building") for the term and rental set forth in Articles 41 and 42 hereof.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby convenant
as follows:
Occupancy: 1. Tenant shall pay the rent as above and as hereinafter provided.
Use: 2. Tenant shall use and occupy demised premises for the Permitted Use
provided such use is in accordance with the Certificate of Occupancy for the
building, if any, and for no other purpose.
Alterations: 3. Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, installations or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved by Owner. Tenant shall, at its expense,
before making any alterations, additions, installations or improvements obtain
all permits, approval and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner. Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law or otherwise. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner on Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease, elect
to relinquish Owner's right thereto and to have them removed from the demised
premises by Tenant prior to the expiration of the lease, at Tenant's expense.
Nothing in this Article shall be construed to give Owner title to or to prevent
Tenant's removal of trade fixtures, moveable office furniture and equipment, but
upon removal of any
such from the premises or upon removal of other installations as may be required
by Owner. Tenant shall immediately and its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Tenant's expense.
Repairs: 4. Owner shall maintain and repair the exterior of and the public
portions of the building. Tenant shall, throughout the term of this lease, take
good care of the demised premises including the bathrooms and lavatory
facilities (if the demised premises encompass the entire floor of the building)
and the windows and window frames and, the fixtures and appurtenances therein
and at Tenant's sole cost and expense promptly make all repairs thereto and to
the building, whether structural or non-structural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant, Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required by other provisions
of this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to be
exterminated. Tenant shall give Owner prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the condition with due
diligence, but at the expense of Tenant, if repairs are necessitated by damage
or injury attributable to Tenant, Tenant's servants, agents, employees, invitees
or licensees as aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. The provisions of this
Article 4 with respect to making of repairs shall not apply in the case of fire
or other casualty with regard to which Article 9 hereof shall apply.
Window Cleaning: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the New York State Labor Law or any other applicable law or of
the Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
Requirements Of Law, Fire Insurance, Floor Loads: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant shall, at Tenant's sole cost and expense, promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
New York Board of Fire Underwriters, or the Insurance Services Office, or any
similar body which shall impose any violation, order or duty upon Owner or
Tenant with respect to the demised premises, whether or not arising out of
Tenant's
use or manner of use thereof, or, with respect to the building, if
arising out of Tenant's use or manner of use of the demised premises or the
building (including the use permitted under the lease). Except as provided in
Article 30 hereof, nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method or operation therein, violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant shall
not do or permit any act or thing to be done in or to the demised premises which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised premise except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates applicable to said premises shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgment, to absorb and prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Property - Loss, Damage, Reimbursement, Indemnity: 8. Owner or its Agents shall
not be liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for loss of or damage to any property of Tenant
by theft or otherwise, nor for any injury or damage to persons or property
resulting from any cause of whatsoever nature, unless caused by or due to the
negligence of Owner, its agents, servants or employees; Owner or its agents
shall not be liable for any damage caused by other tenants or persons in, upon
or about said building or caused by operations in connection of any private,
public or quasi public work. If at any time any windows of the demised premises
are temporarily closed, darkened or bricked up (or permanently closed, darkened
or bricked up, if required by law) for any reason whatsoever including, but not
limited to Owner's own acts, Owner shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorney's fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's agents, contractors,
employees, invitees, or licensees, of any covenant or condition of this lease,
or the carelessness, negligence or improper conduct of the Tenant, Tenant's
agents, contractors, employees, invitees or licensees. Tenant's liability under
this lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction Fire and Other Casualty: 9. (a) If the demised Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by Owner, subject to Owner's
right to elect not to restore the same as hereinafter provided. (d) If the
demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond Owner's control. After any such casualty, Tenant shall cooperate
with Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after written notice from Owner that the premises are substantially ready
for Tenant's occupancy. (c) Nothing contained hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty,
and to the extent that such insurance is in force and collectible and to the
extent permitted by law, Owner and Tenant each hereby releases and waives all
right of recovery against the other or any one claiming through or under each of
them by way of subrogation or otherwise. The
foregoing release and waiver shall be in force only if both releasors' insurance
policies contain a clause providing that such a release or waiver shall not
invalidate the insurance. If, and to the extent, that such waiver can be
obtained only by the payment of additional premiums, then the party benefiting
from the waiver shall pay such premium within ten days after written demand or
shall be deemed to have agreed that the party obtaining insurance coverage shall
be free of any further obligation under the provisions hereof with respect to
waiver of subrogation. Tenant acknowledges that Owner will not carry insurance
on Tenant's furniture and/or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant and agrees that Owner will
not be obligated to repair any damage thereto or replace the same. (d) Tenant
hereby waives the provisions of Section 227 of the Real Property Law and agrees
that the provisions of this article shall govern and control in lieu thereof.
Eminent Domain: 10. If the whole or any part of the demised Premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that 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 for the value of any unexpired term of said lease.
Assignment Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing leeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building or which Owner may elect to perform in
the premises after Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this lease, or for the purpose of complying
with laws, regulations and other directions of governmental authorities. Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided, wherever possible, they are within walls or
otherwise concealed. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term hereof Owner shall have the
right to enter the demised premises at reasonable hours for the purpose of
showing the same to prospective tenants and may, during said six months period,
place upon the premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the premises, Owner or Owner's agents
may enter the same whenever such entry may be necessary or permissible by master
key or forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected. If during
the last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom, Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
Vault, Vault 14. No Vaults, vault Space or area, whether or not enclosed or
covered, not within the property line of the building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding,
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authorities for such vault or area shall be paid by
Tenant, if used by Tenant, whether or not specifically leased hereunder.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant shall be responsible for
and shall procure and maintain such license or permit.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making by Tenant
of an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination
of this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four (4%) per annum. If such premises or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease including the covenants for payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
ss. 235 of Title 11 of the U.S. Code (bankruptcy code);" or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if Tenant shall make default with respect to any other lease between Owner and
Tenant; or if Tenant shall have failed, after ten (10) days written notice, to
redeposit with Owner any portion of the security deposited hereunder which Owner
has applied to the payment of any rent and additional rent due and payable
hereunder or failed to move into or take possession of the premises within
fifteen (15) days after the commencement of the term of this lease, of which
fact Owner shall be the sole judge; then in any one or more of such events, upon
Owner serving a written ten (10) days notice upon Tenant specifying the nature
of said default and upon the expiration of said ten (10) days, if Tenant shall
have failed to comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within ten (10) day period, and if Tenant shall not have
diligently commenced during such default within such ten (10) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said five (5) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof and Tenant shall then quit and
surrender the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; then and in any of such events Owner may
without notice, re-enter the demised premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall make default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
Remedies of Owner and Waiver such of Redemption: 18. In case of any default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent, and additional rent, shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the
premises or any part or parts thereof, either in the name of Owner or otherwise,
for a term or terms, which may at Owner's option be less than or exceed the
period which would otherwise have constituted the balance of the term of this
lease and may grant concessions or free rent or charge a higher rental than that
in this lease, (c) Tenant or the legal representatives of Tenant shall also pay
Owner as liquidated damages for the failure of Tenant to observe and perform
said Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, attorney's fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of Owner
to collect the deficiency for any subsequent month by a similar proceeding.
Owner, in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
Fees and Expenses: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceedings, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Owner within five (5) days of
rendition of any bill or statement to Tenant therefor. If Tenant's lease term
shall have expired at the time of making of such expenditures or incurring of
such obligations, such sums shall be recoverable by Owner as damages.
Building Alterations And Management: 20. Owner shall have the right at any time
without the same constituting an eviction and without incurring liability to
Tenant therefor to change the arrangement and or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the building and to change the name, number or designation by
which the building may be known. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or other
Tenant making any repairs in the building or any such alterations, additions and
improvements. Furthermore, Tenant shall not have any claim against Owner by
reason of Owner's imposition of any controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Representations by Owner: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the demised premises or the building except as herein expressly set forth and
no rights, easement or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same "as is" on the date possession
is tendered and acknowledged that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property from the demised premises. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this Lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
Quiet Enjoyment: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised without molestation
or disturbance by the Landlord, subject, nevertheless, to the terms and
conditions of this lease including, but not limited to, Article 34 hereof and to
the ground leases,
underlying leases and mortgages hereinbefore mentioned.
Failure To Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or if Owner has not completed any work required
to be performed by Owner, or for any other reason, Owner shall not be subject to
any liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the same be
construed in any wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for Owner's
inability to obtain possession or complete any work required) until after Owner
shall have given Tenant notice that the premises are substantially ready for
Tenant's occupancy. If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this lease, except
as to the covenant to pay rent. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
any of the Rules or Regulations, set forth hereafter adopted by Owner, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. All checks tendered to Owner as and for the
rent of the demised premises be deemed payments for the account of Tenant.
Acceptance by Owner of rent from anyone other than Tenant shall not be deemed to
operate as an assignment or subletting by Tenant of the demised premises to such
payor, or as a modification of the provisions of this lease. No act or thing
done by Owner or Owner's agents during the term hereby demised shall be deemed
an acceptance of a surrender of said premises and no agreement to accept such
surrender shall be valid unless in writing signed by Owner. No employee of Owner
or Owner's agent shall have any power to accept the keys of said premises prior
to the termination of the lease and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of parties
hereto against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Owner
commences any summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding.
Inability to Perform: 27. 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 wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or 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 repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever beyond Owner's sole control
including, but not limited to, government preemption in connection with a
National Emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency
Bills and Notices: 28. Except as otherwise in this lease provided a bill,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered it, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant, and the time of the
rendition of such bill or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by Tenant
to Owner must be served by registered or certified mail addressed to Owner at
the address first hereinabove given or at such other address as Owner shall
designate by written notice.
Water Charges: 29. If Tenant requires, uses or consumes water for any purpose
(of which fact Tenant constitutes Owner to be the sole judge) Owner may install
a water meter and thereby measure Tenant's water consumption for all purposes.
Tenant shall pay Owner for the cost of the meter and the cost of the
installation, thereof and throughout the duration of Tenant's occupancy Tenant
shall keep said meter and installation equipment in good working order and
repair at Tenant's own cost and expense in default of which Owner may cause such
meter and equipment to be replaced or repaired and collect the cost thereof from
Tenant, as additional rent. Tenant agrees to pay for water consumed, as shown on
said meter as and when bills are rendered, and on default in making such payment
Owner may pay such charges and collect the same from Tenant, as additional rent.
Tenant covenants and agrees to pay, as additional rent the sewer rent, charge or
any other tax, rent, levy or charge which now or hereafter is assessed, imposed
or a lien upon the demised premises or the realty of which they are part
pursuant to law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or sewage or sewage
connection or system. If the building or the demised premises or any part
thereof is supplied with water through a meter through which water is also
supplied to other premises Tenant shall pay to Owner, as additional rent, on the
first day of each month, _________% ($________) of the total meter charges as
Tenant's portion. Independently of and in addition to any of the remedies
reserved to Owner hereinabove or elsewhere in this lease. Owner may sue for and
collect any monies to be paid by Tenant or paid by Owner for any of the reasons
or purposes hereinabove set forth.
Sprinklers: 30. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
or city government recommend or require the installation of a sprinkler system
or that any changes, modifications, alterations, or additional sprinkler heads
or other equipment be made or supplied in an existing sprinkler system by reason
of
Tenant's business, or the location of partitions, trade fixtures, or other
contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional sprinkler
heads or other such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations, and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of $____________, on the first day of each month during the term of this lease,
as Tenant's portion of the contract price for sprinkler supervisory service.
Elevators, Heat, Cleaning: 31. As long as Tenant is not in default under any of
the covenants of this lease Owner shall:
(a) furnish heat through the existing facilities serving the Demised
Premises, water and other services supplied by Owner to the demised premises,
when and as required by law, on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) clean the public halls and public portions
of the building which are used in common by all tenants. Tenant shall, at
Tenant's expense, keep the demised premises, including windows, clean and in
order, to satisfaction of Owner, and for that purpose shall employ the person or
persons, or corporation approved by Owner. Tenant shall pay the cost of removal
of any of Tenant's refuse and rubbish from the building. Tenant shall
independently contract for the removal of such refuse and rubbish. The removal
of such refuse and rubbish by others shall be subject to such rules and
regulations as, in the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
elevator, plumbing and electric systems, when necessary, by reason of accident,
or emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner may proceed with alterations necessary to substitute
automatic control elevator service upon ten (10) day written notice to Tenant
without in any way affecting the obligations of Tenant hereunder, provided that
the same shall be done with the minimum amount of inconvenience to Tenant, and
Owner pursues with due diligence the completion of the alterations.
Security: 32. [Deleted]
Captions: 33. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision hereof.
Definitions: 34. The term "Owner" as used in this lease means only the owner of
the fee or of the leasehold of the building, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental whether so-expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as is covered by specific hours
in Article 31 hereof), Sundays and all days observed by the State or Federal
Government as legal holidays
and those designated as holidays by the applicable building service union
employees service contract or by the applicable Operating Engineers contract
with respect to HVAC service.
Adjacent Excavation- 35. If an excavation shall be made upon land adjacent to
the demised premises, or shall be authorized to made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
Rules and Regulations: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of such Rule or Regulation
hereafter for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
Glass: 37. Owner shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Owner may insure, and keep insured, at Tenant's expense, all
plate and other glass in the demised premises for and in the name of Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due from and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
Estoppel Certificate: 38. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this Lease is unmodified in full force and effect for,
(or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), stating the dates to which the rent
and additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Directory Board Listing: 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such person or persons.
Successors and Assigns: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
See Escalation and Supplemental Riders Attached
hereto and made a part hereof
In Witness Whereof, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
LANDLORD: CMC MIC HOLDING COMPANY, L.L.C.
By: /s/ Irwin B. Cohen
----------------------------------
Witness for Owner: By: MC Holdings Company. L.L.C., Mgr.
By /s/ Arik Kislin, Member
----------------------------- ----------------------------------
Witness for Tenant: TENANT: RONNYBROOK FARM DAIRY, INC.
By: /s/ Ronald Osofsky
----------------------------- ----------------------------------
Rider No. 1, attached to and made a part of Lease dated
Between CMC MIC HOLDING COMPANY, L.L.C.
As Owner and
RONNYBROOK FARM DAIRY, INC.
As Tenant
A. TAXES. Tenant agrees to pay as additional rent Tenant's Proportionate Share
of any and all increases in Real Estate Taxes above the Real Estate Taxes for
the "Base Tax Year") imposed on the Property with respect to every Tax Year or
part thereof during the term of this lease, whether any such increase results
from a higher tax rate or an increase in the assessed valuation of the property,
or both. "Property" shall mean the land and building including any "air rights",
of which the demised premises are a part. "Real Estate Taxes" shall mean taxes
and assessments imposed upon the Property including any special assessment
imposed thereon for any purpose whatsoever and also including taxes payable by
Owner to a ground lessor with respect thereto, and unmetered water taxes and
sewer rents. If due to a change in the method of taxation any franchise, income,
profit, or other tax, however designated, shall be levied against Owner's
interest in the property in whole or in part for or in lieu of any tax which
would otherwise constitute Real Estate Taxes such change in method of taxation
shall be included in the term "Real Estate Taxes" for purposes hereof. "Tax
year" shall mean each period of twelve months commencing on the first day of
July subsequent to the Base Tax Year, in which occurs any part of the term of
this lease or such other period of twelve months occurring during the term of
this lease as hereafter may be duly adopted as the fiscal year for real estate
tax purposes of the City of New York. All such payments shall be appropriately
pro-rated for any partial Tax Years occurring during the first and last years of
the term of this lease. A copy of the Tax Bill of the City of New York shall be
sufficient evidence of the amount of Real Estate Taxes and for calculation of
the amount to be paid by Tenant.
Only Owner shall be eligible to institute tax reduction or other
proceedings to reduce the assessed valuation. Should Owner be successful in any
such reduction proceedings and obtain a rebate for periods during which Tenant
has paid Tenant's share of increases, Owner shall, after deducting Owner's
expenses in connection therewith including without limitation attorney's fees
and disbursements, return to Tenant tenant's pro-rata share of such rebate
except that Tenant may not obtain any portion of the benefits which may accrue
to Owner from any reduction in Real Estate Taxes for any Tax Year below those
imposed in the Base Tax year.
B. OPERATING EXPENSES For purposes of this article only, the following words and
terms have the following meaning:
(1) "BASE OPERATION YEAR" shall have the meaning provided in Article 41.
(2) "OPERATION YEAR" shall mean each calendar year in which occurs any part of
the term of this lease. If the lease term shall commence or terminate on a date
other than January 1, or December 31 of an Operation Year, any increase or
decrease in additional rent by reason hereof shall be appointed.
(3) "OPERATING EXPENSES" shall mean any or all of the following incurred by
Owner with respect to the building of which the demised premises form a part:
salaries, wages, hospitalization, medical, surgical and general welfare benefits
(including group insurance) and pension payments of employees of Owner engaged
in the operation and maintenance of the building of which the demised premises
are a part, payroll taxes, workmen's compensation insurance, gas, oil, or other
fuel, electricity, steam, together with any taxes thereon, utility taxes, water,
(including sewer rental), rent, casualty and liability and other insurance
covering Owner, Owner's agent, mortgagee and any portion of Owner's property,
repairs and maintenance, building and cleaning supplies, uniforms and dry
cleaning window cleaning, management fees, service contracts with independent
contractors, telephone,
telegraph, stationery, advertising, and all other expenses paid in connection
with the operation of said premises properly chargeable against income,
including but not limited to accounting expenses for all statements with respect
to Owner's Property, including statements required under this Article and any
work in connection with any governmental entity, and attorney's fees and fees to
professionals for services rendered in connection with the maintenance, repair
and operation of Owner's Property and in respect of real estate taxes payable on
Owner's Property; dues and fees for trade and Industry associations and costs of
their related activities, all relating to Owner's Property; and home office
administration costs for the proportionate share of any salaries of Owner's
employees engaged in Property management and for bookkeeping and telephone.
Owner's Operating Expenses shall not include any item otherwise properly
constituting an operating expense to the extent payment of reimbursement
therefore is actually received by Owner from space occupants for services
rendered or performed directly for the account of such space occupants and for
which Owner makes a separate charge, or for electrical energy for which Tenant's
pay under an electrical rent inclusion or submetering plans provided, however,
that the foregoing exclusion shall be only to the extent of the actual cost to
Owner of the services rendered to each space occupant, nor real estate taxes,
mortgage interest and amortization, brokerage or other costs in connection with
leasing or mortgages, rent under a superior lease, depreciation, nor the cost of
any item required under good accounting and tax practice to be capitalized
(Other than those which under generally applied real estate practice are expense
or regarded as deferred expenses and other than capital expenditures made by
reason of legal requirements or insurance requirements, in any of which cases
the cost thereof shall be included in Operating Expenses for the Operational
Year in which the costs are incurred and subsequent Operational Years, amortized
on a straight-line basis over an appropriate period not exceeding fifteen years,
including interest at the prime interest rate changed by Owner's first
institutional mortgagee at the time of Owner's having made such expenditure or
in the absence thereof by Citibank, N.A.) If Owner shall eliminate the payment
of any of the salaries, wages, benefits or other payments to employees and the
payroll taxes and workmen's compensation insurance premiums relating thereto as
the result of the installation of labor-saving devices or by other means, in
computing the additional rent payable under this paragraph (B), the
corresponding items of said salaries, wages, benefits and other payments to
employees and of said taxes and premiums relating thereto in the base year and
there shall be included in Operating Costs the cost and expense of such
labor-saving device as amortized over the useful life thereof, or the amount of
the reduction in Operating costs, whichever is the lesser.
(4) In the event that the Operating Expenses incurred by Owner during any
Operation Year shall be greater than the Operating Expenses incurred by Owner
during the Base Operation Year, Tenant shall pay to Owner as additional rent for
the Operation Year in question an amount equal to Tenant's Proportionate Share
of the Increase.
The amounts due under subdivision A. "TAXES" and B. "OPERATING EXPENSE"
hereunder shall be collected as additional rent without set off or deduction,
and shall be paid in the following manner.
(A) Any adjustment in rent occurring by reason of subdivision A "TAXES" shall be
effective as of the first day of the Tax Year concerned and, after Owner shall
have furnished Tenant with a statement setting forth the Real Estate Taxes for
the Base Tax Year and the Real Estate Taxes for the Tax Year concerned, all
monthly installments of rent shall reflect 1/12th of the annual amount of such
adjustment until a new adjustment becomes effective pursuant to the provisions
of said subdivision A. Any adjustments in rent payable pursuant to this Rider by
reason of changes in the Real Estate Taxes for the Base Year or any Tax Year
prior to the then current Tax Year, if any, shall be paid by Tenant to Owner
within thirty (30) days after the statement covering such period is delivered to
Tenant or a credit given by Owner towards the next ensuing rent installments
until the credit is exhausted, as the case may be.
B) For the first Operation Year and each subsequent Operation Year Owner shall
furnish Tenant with an operating expense statement, Tenant shall pay the amount
of additional rent shown thereon, if any, within thirty days (30) after
rendition of such statement. Tenant shall be given a credit on such statement
for payments made during the Operating Year on account of the amount due and in
case of an overpayment Tenant shall receive a credit. In order to provide for
current payment of additional rent which may be payable upon the rendering of
the next Operating Expense Statement, all monthly installments of rent following
the rendition of any such statements shall reflect one-twelfth of the annualized
amount of the additional rent shown on the most recent statement and 1/12th of
the amount, if any, by which the amount due under such most recent statement
increased over the most previous statement without respect to credits for
advanced payments. In all events Tenant's tax escalation payments shall be made
so that they are due and payable at least thirty (30) days prior to the date
payments are due either to the taxing authority or to any first institutional
mortgagee under a real estate tax escrow requirement.
The statements of Operating Expenses to be furnished by Owner hereunder
shall be prepared in reasonable detail by a Certified Public Accountant (who may
be a CPA employed by Owner for the audit of Owner's accounts). Said CPA may rely
on Owner's allocations and estimates provided such CPA determines that there is
a reasonable basis for such allocations and estimates. The statements thus
furnished to Tenant shall constitute the final determination as between Owner
and Tenant of the Operating Expenses for the period covered thereby. If any such
Tax or Operating Expenses for the statement is furnished to Tenant after the
commencement of the effective date of any such adjustment, there shall be
promptly paid by Tenant to Owner an amount equal to the portion of such
adjustment allocable to that part of the Operation of Tax Year, as the case may
be, which shall have elapsed prior to the first day of the calendar month next
succeeding the calendar month in which said statement was furnished to Tenant.
Owner's failure during the lease term to prepare and deliver any of the
foregoing tax bills, statements or bills, or Owner's failure to make a demand,
shall not in any way waive or cause Owner to forfeit or surrender Owner's rights
to collect any of the foregoing items of additional rent which may have become
due during the term of this lease. Tenant's liability for the amounts due under
this article shall survive the expiration of the term.
In no event shall any rent adjustment hereunder result in a decrease in the
fixed annual rent.
INIITIAL HERE
---------------
Owner Tenant
IBC RO
SUPPLEMENTAL RIDER TO LEASE
DATED AS OF SEPTEMBER ___, 1996 BETWEEN
CMC MIC HOLDING COMPANY, L.L.C., LANDLORD, AND
RONNYBROOK FARM DAIRY INC., TENANT.
41. Definitions: The following terms, wherever used in this lease, shall have
the meanings herein specified.. Where the meaning of any term is defined as
"None", the provisions of this lease utilizing such term shall be disregarded
and of no force or effect.
"Base Operation Year": the 1996 calendar year.
"Base Tax Year": the fiscal year from July 1, 1996, to June 30, 1996,
both dates inclusive.
"Commencement Date": September 15, 1996.
"Demised Premises": a portion of the ground floor of the Building,
as shown on Exhibit A attached hereto and made
apart hereof.
"Expiration Date": September 14, 2016, or such earlier date upon which the
term of this lease may expire or be cancelled or
terminated pursuant to any of the provisions, conditions
or covenants of this lease or pursuant to law.
"Fixed Rental": (i) Commencement Date through September 14, 1997, both
dates inclusive: $13,680.00 per year ($1,140.00
per month);
(ii) September 15, 1997 through September 14, 1998,
both dates inclusive: $15,048.00 per year
($1,254.00 per month);
(iii) September 15, 1998 through September 14, 1999,
both dates inclusive: $16,416.00 per year
($1,368.00 per month);
(iv) September 15, 1999 through September 14, 2000,
both dates inclusive: $17,784.00 per year
($1,482.00 per month);
(v) September 15, 2000 through September 14, 2001,
both dates inclusive: $19,152.00 per year
($1,596.00 per month);
(vi) September 15, 2001 through September 14, 2006,
both dates inclusive: $21,888.00 per year
($1,824.00 per month);
(vii) September 15, 2006 through September 14, 2011,
both dates inclusive: $24,624.00 per year
($2,052.00 per month); and
(viii) September 15, 2011 through the remainder of the
term of this lease: $27,360.00 per year ($2,280.00
per month).
"Permitted Use": As used herein, the "Permitted Use" of the Demised
Premises shall mean wholesale and retail sale of milk,
fermented milk products, frozen dairy desserts and
cheese.
"Tenant's Proportionate
Share": .0931%
"Security Deposit": "NONE"
42. TERM AND RENTAL:
42.01 The term of this lease shall commence on the Commencement Date and
end on the Expiration Date, both dates inclusive.
42.02 Tenant covenants to pay to Landlord, at the address hereinabove set
forth or at such other address as Landlord shall designate, the following sums:
(a) the Fixed Rental set forth in Article 41 hereof, which shall be
payable in equal monthly installments, in advance, without previous demand
therefor and without any setoff or deduction whatsoever, on the first day of
each and every calendar month throughout the term of this lease, except that the
first monthly installment of Fixed Rental shall be paid upon the execution and
delivery of this lease by Tenant; and
(b) "Additional Rental", consisting of all such other sums of money
as shall become due from and payable by Tenant to Landlord (for default in
payment of which Landlord shall have the same remedies as for a default in the
payment of Fixed Rental).
42.03 Tenant shall pay the Fixed Rental and Additional Rental herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever except
as expressly provided in this lease.
42.04 If the Commencement Date occurs on a day other than the first day of
a calendar month or the Expiration Date occurs on a day other than the last day
of a calendar month, the Fixed Rental for such calendar month shall be prorated
based upon the number of days remaining in said month divided by thirty (30) and
with respect to the first month, the balance of the first month's Fixed Rental
theretofore paid shall be credited against the next monthly installment of Fixed
Rental then due under this Lease.
43. AS-IS POSSESSION:
43.01 Tenant acknowledges that it has made a full and complete inspection
of the Demised Premises. Tenant agrees to accept same on the Commencement Date
in its then "as is" condition. Tenant acknowledges that neither Landlord,
Landlord's agent or any broker, has made any representations or promises in
regard to the Demised Premises for the term herein demised. The taking of
possession of the Demised Premises by Tenant shall be conclusive evidence that
the Demised Premises complied with the condition in which the Demised Premises
were to be delivered to Tenant under this lease.
43.02 All installations, materials or work which may be necessary or
desirable to prepare, equip, decorate or furnish the Demised Premises for
Tenant's occupancy (hereinafter referred to as "Tenant's Work") shall be
performed by Tenant, at its sole cost and expense, in accordance with all the
terms, covenants and conditions of this lease, including without limitation,
Article 3 hereof.
43.03 All lighting, electrical, heating, ventilating, air-conditioning and
plumbing equipment, installations and fixtures now or hereafter installed or
located at or in the Demised Premises by or on behalf of Tenant shall, upon
installation, become the property of Landlord and shall remain upon and be
surrendered to Landlord upon the expiration or termination of
2
this lease, subject to Landlord's right to require Tenant to remove the same as
provided in Article 3.
44. UTILITIES AND SERVICES:
44.01 Tenant agrees to make its own arrangements with the public utility
company servicing the Demised Premises for the furnishing of, and payment of all
charges for electricity, water (hot and cold), gas and all other utilities
consumed by Tenant in the Demised Premises. In no event shall Landlord be
responsible for charges for electricity, water (hot or cold), gas or any other
utilities or for the furnishing of any heat, water (hot or cold),
air-conditioning or any other services. All meters at the Demised Premises for
the purpose of measuring Tenant's consumption and demand of the respective
utilities (electricity, gas, water, etc.) shall be installed by Tenant, at its
sole cost and expense, prior to opening for business in the Demised Premises (or
if Landlord so elects, shall, be installed by Landlord at Tenant's expense to be
reimbursed to Landlord upon demand) and shall thereafter be maintained by
Tenant, at Tenant's sole cost and expense, in good working order and condition.
45. ADDENDUM TO ARTICLE 6:
45.01 Without limiting the generality of the provisions of Article 6,
Tenant shall comply in all respects with all "Environmental Laws" relating to
Tenant's conduct of its business at the Demised Premises. For the purpose of
this paragraph, the term "Environmental Laws" shall mean any federal, state or
local laws, statutes, ordinances, rules, regulations or any judicial or
administrative decisions now in effect or hereinafter enacted relating to
hazardous materials, health and safety or pollution or protection of the
environment insofar as the aforesaid relate to Tenant, Tenant's operations or
Tenant's use of the Demised Premises.
45.02 Tenant will not use or suffer or permit any person to use the
Demised Premises for any unlawful purpose and Tenant, at its sole cost and
expense, will obtain and maintain all licenses and permits from any and all
governmental authorities having jurisdiction over either the Demised Premises or
the conduct of Tenant's business therein to the extent necessary for the conduct
of Tenant's business in the Demised Premises, including without limitation, the
Permitted Use.
45.03 In the event that any repair, alteration, addition or improvement
proposed to be performed by Tenant in or to the Demised Premises shall trigger
any requirement of any federal, state, county, municipal or other law, order,
rule or regulation that any other repair, alteration, addition or improvement be
performed in or to the Demised Premises or other part of the Building in which
the Demised Premises are located (herein, the "Triggered Requirement"), whether
or not such Triggered Requirement results from any pre-existing condition in the
Demised Premises or Building, then Tenant, at its sole cost and expense, shall
cause the Triggered Requirement to be compiled with as part of Tenant's proposed
repair, alteration, addition or improvement and deliver to Landlord evidence of
Tenant's satisfaction of the Triggered Requirement.
46. PLEDGE OF TENANT'S FIXTURES
46.01 Tenant hereby grants to Landlord a first security interest in all of
"Tenant's Fixtures" (as hereinafter defined) as security for the full and
faithful performance and observance by Tenant of all of the terms, agreements,
covenants and conditions of this lease, including the payment of all of the
rents herein reserved. Landlord shall be entitled to all of the rights and
remedies of a "secured party" under the Uniform Commercial Code of the State of
New York with respect to such security interest. This Section 46.01 is intended
by the parties to constitute a "security agreement" for all purposes of the
Uniform Commercial Code. Tenant agrees that it shall own all of Tenant's
Fixtures in fee simple absolute, free of all leases, pledges, mortgages,
encumbrances, grants or any other further security interests in all or any part
of Tenant's Fixtures, whether superior or subordinate to Landlord's interest. At
all times Landlord's security interest shall be a valid and perfected first
security interest in Tenant's Fixtures. Tenant, at its sole cost and expense,
shall indemnify and hold Landlord harmless from all claims, damages, costs and
expenses from any party asserting any leasehold interest
3
(whether as lessor or lessee), pledge, mortgage, encumbrance or security
interest in Tenant's Fixtures, whether superior or subordinate to Landlord's
interest, and Tenant shall take such further actions to perfect and preserve
Landlord's interest as a valid and perfected first security interest. As used
herein, the term "Tenant's Fixtures" shall mean all lighting, electrical,
heating, ventilating, air-conditioning and plumbing equipment, installations and
fixtures now or hereafter installed or located at the Demised Premises by or on
behalf of Tenant, any replacements thereof and all rents, issues, profits and
proceeds of any of the foregoing, irrespective of whether any such property
shall be affixed to the realty.
46.02 Tenant shall, from time to time, within ten (10) days after
Landlord's written request therefor, execute and deliver to Landlord any
financing statements, financing continuation statements, security agreements
and/or any other documents that Landlord shall consider necessary or desirable
under the Uniform Commercial Code to create, confirm the creation of, perfect,
renew, re-perfect, or renew the perfection of Landlord's security interest. To
the fullest extent permitted by the Uniform Commercial Code, Tenant hereby
authorizes Landlord to sign and file, from time to time, without the necessity
of obtaining the signature of Tenant thereon, any financing statement(s) and/or
financing continuation statement(s) that Landlord shall consider necessary or
desirable in connection therewith. Further, Landlord may, from time to time,
search the public records to determine if any further security interests have
been filed against Tenant's Fixtures. Tenant shall reimburse Landlord within ten
(10) days of demand, as Additional Rental, for the cost of all filings and
searches referred to in this Section 46.02.
47. INDEMNITY-LIABILITY INSURANCE:
47.01 Tenant covenants and agrees to indemnify and save Landlord harmless
from and against any and all claims for damages or injuries to goods, wares,
merchandise and property and/or for any personal injury or loss of life in, upon
or about the Demised Premises and, to the extent arising from the acts or
negligence of Tenant or its agents, employees, contractors or invitees, the
Building, as well as the sidewalks adjoining the Demised Premises.
47.02 Tenant covenants to provide on or before the Commencement Date of
the term hereof and to keep in force during the term hereof for the benefit of
Landlord and Tenant: (a) a comprehensive policy of liability insurance
protecting Landlord and Tenant against any liability whatsoever occasioned by
accident on or about the Demised Premises or any appurtenances thereto, with
limits of liability thereunder not less than the amount of Three Million and
00/100 ($3,000,000.00) Dollars of combined single limit comprehensive broad form
coverage on a per occurrence basis; and (b) Fire and extended coverage,
vandalism, malicious mischief, water damage and special extended coverage
insurance in an amount adequate to cover the cost of replacement of all
fixtures, decorations and improvements in the Demised Premises. Such policies
are to be written by good and solvent insurance companies reasonably
satisfactory to Landlord with a Best's rating not less than A-8 and shall name
as additional insureds the Landlord, Landlord's managing agent and such other
parties as Landlord shall notify Tenant in writing. Such insurance may be
carried under a blanket of policy covering the Demised Premises and other
locations of Tenant, if any, provided such blanket policy contains a designated
aggregate limit of liability coverage for the Demised Premises alone of not less
than $3,000,000 and Tenant delivers to Landlord evidence thereof.
47.03 Prior to the time such insurance is first required to be carried by
Tenant and thereafter, at least thirty (30) days prior to the expiration of any
such policy, Tenant agrees to deliver to Landlord either a duplicate original of
the aforesaid policies or a certificate evidencing such insurance, provided said
certificate or policies contain an endorsement that such insurance may not be
cancelled or modified except upon thirty (30) days' notice to Landlord together
with evidence of payment for the policy. Tenant's failure to provide and keep in
force the aforementioned insurance shall be regarded as a material default
hereunder, entitling Landlord to exercise any or all of the remedies as provided
in this lease in the event of Tenant's default.
4
48. BROKER:
48.01 Tenant covenants, warrants and represents to Landlord that Tenant
has not utilized the services of, been introduced to the Demised Premises or
Building by, nor been represented by any broker or finder in connection with any
of the conversations or negotiations in consummating this lease or the renting
of the Demised Premises. Tenant shall indemnify, defend and hold and save
Landlord harmless against any and all liability from any claims of any broker
claiming to have introduced Tenant to the Demised Premises or the Building or
represent Tenant in connection with the renting of the Demised Premises
(including, without limitation, the cost of counsel fees in connection with the
defense of any such claims in connection with the renting of the Demised
Premises).
49. EXCULPATORY CLAUSE:
49.01 Tenant shall look solely to the estate and property of Landlord in
the Building, for the satisfaction of Tenant's remedies for the collection of a
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 the lease to be observed and/or performed by
Landlord, and no other property or assets of Landlord or any partner, member,
officer or director thereof, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Landlord and
Tenant hereunder, or Tenant's use and occupancy of the Demised Premises. Without
limiting the foregoing, it is further understood that under no event or
circumstance shall Landlord be held responsible for the acts of any third
parties, including without limitation, any other tenants or occupants of the
Building or their guests, employees, agents, contractors or invitees, it being
expressly understood and agreed that Landlord's liability for any default in the
Landlord's obligations under this lease are expressly limited to the acts and
omissions of the Landlord and its agents and employees.
50. OPERATING COVENANTS:
50.01 Cleaning: The entire Demised Premises, including store fronts and
any glass show windows and all sidewalks adjacent to the Demised Premises, are
to be kept clean by Tenant, at its sole cost and expense, in a manner
satisfactory to Landlord. Tenant, at its expense, shall maintain and repair all
damage to the sidewalks or common areas of the building to the extent caused by
the acts or negligence of Tenant or its agents, employees, contractors or
invitees.
50.02 Removal of Garbage: Tenant agrees that it shall independently
contract, at its sole cost and expense, for the removal of all rubbish, refuse
and waste from the Demised Premises, utilizing contractors and subcontractors
approved (in writing, in advance) by Landlord. The removal of such rubbish,
refuse, garbage shall be subject to such rules and regulations as, in the
reasonable judgment of Landlord, are necessary for the proper operation of the
Building. Tenant shall comply with all applicable requirements, if any, of the
Department of Health and Sanitation of the City of New York relating to the
separation and/or treatment of such rubbish prior to its placement for disposal.
Tenant shall accumulate garbage for collection in concealed and enclosed metal
containers located solely in the Demised Premises. Tenant further agrees not to
permit the accumulation (unless in concealed and enclosed metal containers) of
any rubbish or garbage in, on or about any part of the Demised Premises, and not
to permit any garbage or rubbish to be collected or disposed of from the Demised
Premises during the hours of 8:30 a.m. to 12 Midnight, except in strike and
emergency situations.
50.03 Extermination: Tenant, at its expense, shall keep the Demised
Premises and the areas adjacent to the Demised Premises, free from vermin, rats,
mice and insects, and, prior to the opening of the Demised Premises for
business, obtain and maintain at all times during the term of this lease a
service contract, with a person or company approved by Landlord (which approval
shall not be unreasonably withheld or delayed), for the extermination of vermin,
rats,
5
mice and insects in and about the Demised Premises, such service contract and
all renewals or replacements thereof to be in form reasonably approved by
Landlord, and a copy thereof to be delivered to Landlord prior to the opening of
the Demised Premises for business or, in the case of renewal or replacement
contracts, prior to the termination or expiration of the prior contract.
50.04 No Obstruction: Tenant shall not encumber or obstruct, or permit to
be encumbered or obstructed, any portion of the sidewalk, entrances or common
and public areas, of the Building adjacent to or abutting upon the Demised
Premises. Tenant shall not use, or permit to be used, any area or space outside
the Demised Premises for the conduct of Tenant's business and shall not permit
Tenant's employees, agents, contractors or invitees to linger, loiter or
assemble outside the Demised Premises.
50.05 Deliveries: Tenant agrees that Tenant's deliveries to the Demised
Premises shall be subject to Landlord's rules and regulations as shall be
promulgated from time to time throughout the term of this lease. Under no
circumstances shall any portion of the lobby of the Building be used for
Tenant's deliveries.
50.06 Continuous Operation: Tenant agrees that, notwithstanding any other
provision of this lease, that it will be open for business not less than seven
(7) days per week except on federal holidays that fifty (50%) percent or more of
the retail operations then in business in the Building jointly agree to close
and during all hours observed by a majority of the retail tenants in the
concourse level of the Building.
50.07 Obnoxious Odors: Tenant will not permit any obnoxious odors to
emanate from the Demised Premises. Tenant will, within three (3) business days
after written notice from Landlord, install or commence to install, at its own
cost and expense, reasonable control devices or procedures to eliminate such
odors, if any, and will complete such installations as expeditiously as possible
thereafter. In the event such condition is not promptly remedied, Landlord may,
at its discretion, cure such condition and thereafter add the cost and expense
incurred by Landlord therefor to the next monthly rental to become due and
Tenant shall pay said amount as Additional Rental.
50.08 Plumbing: Tenant may install and connect all of its utility waste
lines to those now existing in the Building, sidewalk or streets, but agrees not
to use the plumbing for any purpose other than that for which it was constructed
and agrees, further, not to permit any food, waste or other foreign substance to
be thrown or drawn into the pipes. Tenant agrees to maintain the plumbing that
it installs in good order, repair and condition and to repair any damage
resulting from any violation of this Article. Tenant further agrees to make any
repairs to the plumbing of the Building if the damage thereto is caused by
Tenant's use of such plumbing. Notwithstanding anything in this lease to the
contrary, all such repairs shall be conducted by contractors and subcontractors
satisfactory to Landlord in its sole discretion.
50.09 No Excessive Noise: Tenant agrees that it will perform all of its
work required or permitted hereunder and conduct its business in the Demised
Premises throughout the term of this lease in such a manner so as not to create
any excessive noise, which disturbs any of the other tenants or occupants of the
Building.
50.10 Material Inducement: The provisions of this Article 50 are a
material inducement for Landlord to execute and deliver this lease. Any failure
by Tenant to comply with the requirements of this Article 50 shall be deemed a
material breach of this lease, for which Landlord shall be entitled to any and
all of its remedies in accordance with the terms, conditions and covenants of
this lease.
51. ADDENDUM TO ARTICLE 7 (SUBORDINATION):
51.01 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to
6
Landlord's rights (hereinafter sometimes referred to as "successor landlord")
and upon successor landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such successor landlord as Tenant's
landlord under this lease, and shall promptly execute and deliver any instrument
that such successor landlord may reasonably request to evidence such attornment.
Upon such attornment this lease shall continue in full force and effect as, or
as if it were, a direct lease between the successor landlord and Tenant upon all
of the terms, conditions and covenants as are set forth in this lease and shall
be applicable after such attornment except that the successor landlord shall
not:
(a) be liable for any previous act or omission of Landlord under
this lease,
(b) be subject to any offset, not expressly provided for in this
lease, which shall have theretofore accrued to Tenant against Landlord,
(c) be bound by any previous modification of this lease, not
expressly provided for in this lease, or by any previous prepayment of more than
one month's Fixed Rental, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the superior lease or the holder
of the superior mortgage through or by reason of which the successor landlord
shall have succeeded to the rights of Landlord under this lease.
51.02 In the event any provision of this lease shall conflict with the
provisions of Article 7, as supplemented by this Article 51, then the provisions
of Article 7, as hereby supplemented, shall be deemed to be paramount, supersede
such conflicting provisions and shall control.
52. ADDENDUM TO ARTICLE 17 (DEFAULT):
52.01 Any payment made more than ten (10) days after the due date thereof,
shall be subject to a late charge of four (4%) percent of the amount so overdue,
as consideration for the additional expense incurred by the Landlord in the
handling thereof. Such late charges shall be due with any such late payment.
53. PORNOGRAPHIC USE PROHIBITED:
53.01 Without limiting the generality of Articles 2 and 45 hereof, Tenant
agrees that it will not use, or permit the use of, the Demised Premises, or any
portion thereof, for any pornographic or obscene purposes, nor for any
commercial sex establishment, nor for any pornographic, obscene, nude or
semi-nude performances, modeling, materials, activities or sexual conduct in or
thereon. In the event of any violation by Tenant of the provisions of this
Article 53, Tenant shall, immediately upon notice from Landlord, cease the
objectionable, conduct. The parties agree that in such instance, Landlord will
suffer irreparable harm for which money damages will be an insufficient remedy.
For that reason, in the event Tenant fails to cease such objectionable conduct
as aforesaid, Landlord, in addition to any rights otherwise available to it
under this lease and pursuant to law and equity, shall have the right to a court
order granting an injunction against Tenant's objectionable conduct as
aforesaid, application for such injunction to be made without notice.
54. MISCELLANEOUS:
54.01 Conflict of Terms: In the event any term, covenant, condition or
agreement contained in this Rider shall conflict or be inconsistent with any
term, covenant, condition or agreement contained in the printed portion of this
lease, then the parties agree that the Rider provision shall prevail.
54.02 Governing Law: This lease shall be governed in all respects by the
laws of the State of New York.
54.03 Saving Provision: If any provision of this lease, or its application
to any situation shall be invalid or unenforceable to any extent, the remainder
to this lease, or the
7
application thereof to situations other than that as to which it is invalid or
unenforceable, shall not be affected thereby, and every provision of this lease
shall be valid and enforceable to the fullest extent permitted by law.
54.04 Lease Not Binding Unless Executed: Submission by Landlord of the
within lease for execution by Tenant, shall confer no rights nor impose any
obligations on either party unless and until both Landlord and Tenant shall have
executed this lease and duplicate originals thereof shall have been delivered to
the respective parties.
54.05 No Recording: Neither this lease nor any memorandum hereof shall be
recorded without the Landlord's prior written consent and any attempted
recordation hereof by the Tenant shall be void and shall constitute a material
default by Tenant hereunder.
54.06 Entire Agreement, Successors and Assigns: This lease constitutes and
incorporates the entire agreement between the parties hereto and no earlier
statement or prior written or verbal matter shall have any force or effect, all
of which are superseded in their entirety by this lease. Tenant agrees, that it
is not relying on any representations or agreements other than those contained
in this lease. This agreement shall not be modified or cancelled except by a
written agreement signed by both parties. The covenants, conditions and
agreements contained in this lease shall bind and inure to the benefit of
Landlord and Tenant and their respective heirs, distributees, executors,
administrators, successors and except as otherwise provided in this lease, their
assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease as of the
day and year first written above.
WITNESS: LANDLORD:
CMC MIC HOLDING COMPANY, L.L.C.
/s/ Faith Ryan By:/s/ Irwin B. Cohen
-------------------- -----------------------
Name: Irwin B. Cohen
Title: Manager
By: MC HOLDINGS COMPANY, L..C.,
Manager
By: /s/ Arik Kislin
-------------------
Arik Kislin, Member
WITNESS: RONNYBROOK FARM DAIRY, INC.
By: /s/ Ronald Osofsky
----------------------
Name:
Title:
8
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
On this ____day of _____________, 1995, before me personally came
_______________________ to me known and known to me did depose and say that
(s)he resides at _________________________________, that (s)he is the
_____________ of ______ and that (s)he signed (her) his. name thereto by order
of the Board of Directors of said corporation.
----------------------------------
Notary Public
9
ATC MANAGEMENT, INC.
88 Tenth Avenue
New York, New York 10011
MODIFICATION OF LEASE
October 31, 1996
Ronnybrook Farm Dairy, Inc.
Prospect Hill Road
Ancramdale, New York 12503
Dear Sirs:
This letter shall serve to modify the lease agreement dated September 13,
1996 between CMC MIC HOLDING COMPANY, L.L.C. and RONNYBROOK FARM DAIRY, INC.
Anything in this Lease to the contrary notwithstanding, Landlord and Tenant have
agreed that:
1. Commencing October 31, 1996 and expiring on Tenant's Lease Expiration Date,
Tenant's Demised Premises shall be a portion of the ground floor of the
building, as shown on "Modification of Lease Exhibit A" as attached;
2. Tenant's Proportionate Share shall be:
(i) Commencing on Tenant's Lease Commencement Date and expiring on
September 14, 1997:
.0931%
(ii) Commencing September 15, 1997 and expiring on September 14, 1998:
.1281%
(iii) Commencing September 15, 1998 and expiring on Tenant's Lease
Expiration Date:
.1632%
3. Commencing October 31, 1996 and expiring on Tenant's Lease Expiration Date,
Tenant's Fixed Rental shall be:
(i) Commencement Date through September 14, 1997 both dates inclusive:
$13,680.00 per year
($1,140.00 per month);
(ii) September 15, 1997 through September 14, 1998 both dates inclusive:
$13,680.00 per year
($1,140.00 per month);
(iii) September 15, 1998 through September 14, 1999, both dates inclusive:
$20,712.96 per year
($1,726.08 per month);
(iv) September 15, 1999 through September 14, 2000, both dates inclusive:
$26,000.04 per year
($2,166.67 per month);
(v) September 15, 2000 through September 14, 2001, both dates inclusive:
$33,585.96 per year
($2,798.83 per month);
(vi) September 15, 2001 through September 14, 2005, both dates inclusive:
$38,384.04 per year
($3,198.67 per month);
(vii) September 15, 2005 through September 14, 2006, both dates inclusive:
$42,896.04 per year
($3,574.67 per month);
(viii) September 15, 2006 through September 14, 2011, both dates
inclusive:
$47,694.00 per year
($3,974.50 per month);
(ix) September 15, 2011 through the remainder of the term of this lease:
$47,979.76 per year
($3,998.33 per month).
All other terms and conditions of the Lease shall remain the same.
Agreed to and accepted by:
RONNYBROOK FARM DAIRY, INC.
/s/ Ronald Osofsky
----------------------------
Tenant
CMC MIC HOLDING COMPANY, L.L.C.
/s/ Irwin B. Cohen
----------------------------
Landlord
2
Dates Referenced Herein
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