Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration Statement 110 527K
2: EX-1.1 Underwriting Agreement 39 132K
3: EX-1.2 Dealers Agreement 7 24K
4: EX-3.1 Articles of Incorporation 7 31K
5: EX-3.2 By-Laws 12 52K
6: EX-4.3 Warrant Agreement 34 102K
7: EX-4.4 Purchase Option 16 48K
8: EX-10.1 1996 Non-Employee Director Stock Option Plan 7 31K
11: EX-10.16 Lease Agreement 16 57K
12: EX-10.17 Lease Agreement 15 55K
13: EX-10.18 Lease Agreement 15 55K
9: EX-10.2 1996 Employee and Consultant Stock Option Plan 10 40K
14: EX-10.29 Agency and Sales Agreement 9 31K
15: EX-10.30 Requirments Agreement 9 22K
10: EX-10.5 Executive Employment Agreement Re: Benson Zinbarg 11 48K
16: EX-23.1 Consent of Independent Certified Public 1 8K
Accountants
17: EX-23.2 Consent of Law Offices of David Gordon 1 7K
LEASE AGREEMENT
This Lease Agreement dated the 19 day of September, 1996, by and between BENSON
ZINBARG of 48 Union Street, Stamford, Connecticut 06906 ("Landlord") and SUN
HILL INDUSTRIES, INC., a Connecticut corporation with offices located at 48
Union Street, Stamford, Connecticut 06906 ("Tenant").
WITNESSETH:
1. PREMISES - Landlord hereby leases to Tenant, for the term and upon the
rentals hereinafter specified, the following premises: that portion of the
building known as Glenbrook Commerce Park, 48 Union Street, Stamford,
Connecticut known as Unit 1B of said Glendale Commerce Park currently used by
Tenant as warehouse and assembly space, consisting of approximately 3,708 square
feet (referred to herein as the "Premises"). Said building and the land
described in Exhibit A attached hereto are herein collectively referred to as
the "Building".
2. DEFINITIONS - Terms used in this Lease Agreement shall
have the following meanings:
(a) Minimum Annual Rent: $46,350.00
Minimum Annual Rent shall be payable as set forth elsewhere in this
lease agreement, in monthly installments of $3,862.50.
(b) Tax Base Year: List of October 1, 1995
(c) Tenant's Proportionate Share:
30.28% of 48 Union Street, Unit 1B, Stamford,
Connecticut.
3. TERM - To have and to hold the Premises for a term (the "Term"),
commencing on a date (the "Commencement Date"), which shall be September 1, 1996
and ending on August 31, 2001 (the "Expiration Date"), unless the Term shall
sooner terminate pursuant to the terms, covenants or conditions of this Lease
Agreement or pursuant to law.
4. USE OF PREMISES - (a) Tenant shall use the Premises only for the
operation of its regular course of business and for no other purpose. Said use
shall be limited to warehousing, office use and business-related activities
only. Tenant shall not accumulate any boxes, barrels, packages, waste paper or
other articles in the common areas of the Building. Tenant shall keep the
Premises clean and orderly in accordance with the Landlord's standards for the
Building. Tenant shall commit no waste on the Premises, nor shall Tenant suffer
the same to be committed thereon.
(b) Tenant shall have the right to install and maintain at its own expense
a discrete sign identifying the Tenant's occupancy at the entry monument. No
signs of any kind shall be installed or maintained on the exterior of the
Building, or on the interior of the Building which shall be visible from outside
the Building. Tenant shall not otherwise install, place or paint any other sign
on or about the exterior of the Premises or in the interior of the Building
without the written consent of Landlord, which consent shall not be unreasonably
withheld. All such signs, whether installed or maintained on the exterior or
interior of the Building shall conform to any federal or state statutes and to
any local ordinances which might then be in effect.
(c) Tenant will not interfere with the conduct of business by other
tenants or occupants of the Building or permit actions constituting a private
nuisance or safety hazard.
(d) Tenant, at its own expense, shall comply with and hold Landlord
harmless from all laws, orders and regulations of Federal, State and Municipal
authorities and with any direction of any public officer or officers, pursuant
to law, which shall impose any violation, order or duty upon Landlord or Tenant
with respect to the Premises or the use or occupancy thereof. Tenant shall not
do or permit to be done any act or thing upon the premises which will invalidate
or be in conflict with fire, public liability or other insurance policies
covering the Building and shall not do or permit to be done, any act or thing
upon the Premises which shall or might subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried on at the Premises or for any reason.
(e) Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of the Board of Fire Underwriters or other similar
body or authority having jurisdiction and shall not do or permit anything to be
done in or upon the Premises or the Building, or bring or keep anything therein,
which is prohibited by the Fire Department or any of such Boards of Fire
Underwriters or other body or authority or which would increase the rate of fire
insurance applicable to the Building over that in effect on the Commencement
Date of this Lease Agreement. If by reason of failure to comply with the
provisions of this subsection, any insurance rate for the Building shall, on the
Commencement Date or anytime thereafter, be higher than it otherwise would be ,
the Tenant, upon demand, shall reimburse Landlord, as additional rent hereunder,
for that part of all insurance premiums thereafter paid by the Landlord which
shall have been charged because of such failure by Tenant.
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5. RENTAL - Commencing on the Commencement Date, Tenant shall pay to
Landlord the Minimum Annual Rent without demand and without setoff or deductions
of any kind, in equal monthly installments, in advance, on the first day of each
term, corresponding to the first day of each calendar month at the address of
Landlord stated above or such other place as Landlord may designate in writing
from time to time, with payment in advance of appropriate fractions of a monthly
payment for any portion of a month at the expiration or prior termination of the
Term. Any Minimum Annual rent or Additional Rent not paid by Tenant on or before
the due date thereof or within ten (10) days thereafter shall thereafter be
payable with a late charge of five percent (5%) of the amount then due. Such
late charge shall be payable hereunder as Additional Rent.
6. INCREASE IN REAL ESTATE TAXES - If Real Estate Taxes with respect to
the Building are increased, at any time or from time to time during the Term
hereof, over Real Estate Taxes paid by the Landlord during the Tax Base Year,
then Tenant shall pay to Landlord, without setoffs or deductions of any kind, as
Additional Rent, an amount equal to Tenant's Proportionate Share of such
increase pro-rated for the period of Tenant's occupancy of the premises. Payment
of such increase shall be made in the installments provided by the taxing
authority within thirty (30) days after Tenant receives from Landlord's
Statement consisting of notice of such tax increase and a bill for Tenant's
Proportionate Share thereof, together with a copy of the applicable bill
received by Landlord from the taxing authority. Landlord's failure to render
said Statement with respect to any Tax Year, or Landlord's delay in rendering
such Statement beyond a date specified herein, shall not prejudice Landlord's
right to render a Statement with respect to that or any subsequent Tax Year. The
obligations of Landlord and Tenant under the provisions of this Section with
respect to any Additional Rent, which obligations have accrued prior to the
expiration or sooner termination of the Term, shall survive the expiration or
any sooner termination of the Term. "Real Estate Taxes" shall mean all taxes or
assessments and governmental charges, whether Federal, State or Municipal, which
are levied or charged against real estate, personal property or rents, or on the
right or privilege of leasing real estate or collecting rents thereon and any
other taxes and assessments attributable to the Building or its operation,
excluding, however, Federal, State or other general income taxes not limited to
real property. "Tax Year" shall mean each tax fiscal year of the City of
Stamford following the Tax Base Year.
7. ALTERATIONS, IMPROVEMENTS, ETC. - (a) Tenant shall not make any
alterations, installations or improvements in the Premises without Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed.
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(b) All alterations, improvements or additions made by Landlord or Tenant
upon the Premises or in or on the Building but outside the Premises, except
furniture, light fixtures, equipment, or movable partitions or trade fixtures
installed at the expense of the Tenant, shall be the property of the Landlord
and shall remain and be surrendered with the Premises as a part thereof at the
termination of this Lease Agreement, without compensation to Tenant, unless
Landlord shall require Tenant to remove same. In the event Landlord requires
Tenant to remove same, Landlord agrees to provide Tenant with ten (10) days
written notice.
8. REPAIRS - (a) The exterior and structure of the Building and all parts
of the heating, plumbing, electrical and air conditioning systems, to the extent
that such systems currently exist on the premises, shall be maintained and
repaired by the Landlord, except if such maintenance or repair is necessitated
by the negligence, wrongful act or failure to comply with this Lease Agreement
by Tenant, its employees, agents or invitees, in which event Tenant shall be
responsible for maintenance, repair or replacement as necessary.
(b) Tenant, at its expense, shall repair, maintain in good order and
condition and replace, if necessary, the interior of the Premises, except for
structural repairs and repairs necessitated by the negligence, wrongful act or
failure to comply with this Lease Agreement by Landlord, its employees, agents
or invitees, in which event Landlord shall be responsible for repair or
replacement as necessary. Tenant shall at its own expense, be responsible for
the normal cleaning of the Premises. Tenant shall have the right to arrange for
maintenance or janitorial services to be provided to the Premises, at Tenant's
sole expense, and Tenant shall defend, indemnify, and hold harmless Landlord
from and against all liabilities, including reasonable attorney's fees, which
may be imposed upon or incurred by or asserted against Landlord in connection
with the provision of such janitorial service.
9. PARKING - Tenant shall have the right to use Five (5) parking spaces,
which shall not be designated by Landlord. Tenant shall limit its employees,
agents or invitees parking to said parking spaces except that other non-assigned
spaces shall also be available for Tenant's use. Landlord shall have no
liability to Tenant if others park in Tenant's parking spaces, except that
Landlord shall cooperate with Tenant in its efforts to prevent others from
parking in its spaces.
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10. UTILITIES AND SERVICES - Landlord shall at its own expense furnish or
cause to be furnished hot and cold water for ordinary cleaning, toilet, lavatory
and drinking purposes. Tenant at its own expense shall be responsible for
furnishing of electricity to the premises. Tenant shall also pay Landlord, as
Additional Rent without setoffs or deductions of any kind, an amount equal to
30.28% of the total cost for fuel oil to heat all of Unit 1B, as determined by
Landlord. Payment of such additional rent shall be due within fourteen (14) days
after Tenant receives a statement from Landlord showing Tenants share of the
cost of said fuel oil, together with a copy of the applicable bill or invoice
for said fuel oil. Landlord's failure to render said statement with respect to
any such cost, or Landlord's delay in rendering such statement, beyond a date
specified herein, shall not prejudice Landlord's right to render a statement
with respect to that or any subsequent cost. The obligations of Landlord and
Tenant under the provisions of this Section with respect to any Additional Rent,
which obligations have accrued prior to the expiration or sooner termination of
the Term, shall survive the expiration or any sooner termination of the Term.
Tenant shall be responsible to pay for any other utilities provided to and
used by Tenant. Tenant shall not install or cause to be installed any air
conditioning without the express written consent of Landlord.
11. LIABILITY INSURANCE - (a) Tenant shall, at Tenant's expense, secure
and maintain General Liability Insurance written on a so-called "Comprehensive"
General Liability Form naming Landlord as an additional insured under the policy
with single limit coverage of at least $500,000.00 for injury to one person and
with at least $500,000.00 for injury to more than one person. Tenant shall also
secure and maintain at Tenant's expense General Property Damage Liability
Insurance naming Landlord as an additional insured under the policy with single
limit coverage for at least $50,000.00.
(b) Tenant shall deliver to Landlord a certificate of such insurance prior
to taking occupancy of the Premises and shall deliver a new certificate at least
thirty (30) days prior to the expiration of the existing coverage. Such
certificate shall provide that in the event of termination or material change in
coverage, Landlord shall be given ten (10) days advance notice in writing sent
by certified mail to the address of the Landlord as set forth above. Such
insurance shall contain a waiver of the insurer's right of subrogation against
Landlord. If Tenant fails to secure and maintain such insurance and deliver to
Landlord the required certificate of insurance as set forth above, Landlord
shall have the right to secure and maintain said policy or policies of insurance
and the cost of said policy or policies shall be due and payable from Tenant to
Landlord as Additional Rent and payable to Landlord as set forth elsewhere in
this agreement.
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12. SUBORDINATION - This Lease Agreement is and shall be subject and
subordinate to any and all mortgage or collateral assignment of leases and
rentals now or hereafter affecting the Building or any part thereof and to any
and all extensions, modifications, renewals, replacements and amendments thereof
granted to secure any obligations of the Landlord to any such mortgage holder.
Tenant will execute and deliver promptly to Landlord any certificate or
instrument which Landlord, from time to time, may request for confirmation of
the provisions of this section. Neither the termination of any mortgage or
collateral assignment of leases and rentals, nor the institution of any suit,
action, summary or other proceedings by Landlord or any successor landlord under
such mortgage or collateral assignment of leases and rentals, shall, by
operation of law, result in the cancellation or termination of the obligations
of Tenant hereunder, and Tenant agrees to attorn to and recognize Landlord and
any successor landlord under such mortgage or collateral assignment of leases
and rentals as the case may be, as Tenant's landlord hereunder in the event that
any of them shall succeed to Landlord's interest in the Premises.
13. DESTRUCTION, FIRE OR OTHER CAUSES - If the Premises or Building are
partially damaged by fire or other casualty, the same shall, at the option of
Landlord, be repaired as speedily as possible at the expense of Landlord (to the
extent of insurance proceeds received by Landlord for restoration). If the
damage to the Premises or Building is so extensive so as to render same
untenable by the Tenant, the Tenant's obligation to pay Minimum Annual Rent and
Additional Rent shall cease until such time as the Building or Premises shall be
put in complete repair. If the damage to the Building or Premises is such that
the Building or Premises is totally destroyed and the Landlord elects not to
repair such damage, the Tenant shall be responsible to pay the Minimum Annual
Rent and Additional Rent until the time of such total destruction, and then and
from thenceforth this Agreement shall terminate and the Term shall expire, and
the Tenant shall vacate the Premises and surrender same to the Landlord. If the
damage to the Building or Premises is such that the Landlord is unable to repair
said damage and render the Premises or Building tenable within One Hundred
Eighty (180) days of said damage, the Tenant may elect to terminate this Lease
Agreement and the Tenant shall be responsible to pay the Minimum Annual Rent and
Additional Rent until the time of such total damage, and then and from
thenceforth this Agreement shall terminate and the Term shall expire, and the
Tenant shall vacate the Premises and surrender same to the Landlord.
Landlord shall not be liable for any damage to, or be required (under any
provision of this Lease Agreement or otherwise) to repair, restore or replace,
any property in the Premises or be liable to Tenant for damage arising from rain
or snow or from the bursting, overflowing or leakage of water, steam or gas
pipes or
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defect in the plumbing, HVAC, mechanical or electrical systems of the Building
or from any act or neglect of any other tenant or occupant in the Building,
unless said damage is the result of and caused by negligence of the Landlord.
14. EMINENT DOMAIN - If the whole of the Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, or if
any substantial part thereof or of the Building is so acquired or condemned as
to render the Premises untenantable, or so that Landlord elects not to restore
same but to demolish or rebuild it, then and in that event, the Term shall cease
and terminate from the date of taking. Tenant shall have no claim against
Landlord or the condemning authority for the value of the unexpired Term, nor a
claim to any part of an award in such proceeding, and rent shall be adjusted and
paid to the date of termination. Notwithstanding the above, Tenant shall be
entitled to assert any claim that it may have against Landlord or the condemning
authority concerning its own property, moving expenses and/or interruption of
its business.
15. ASSIGNMENT, MORTGAGE, ETC. - (a) Tenant shall not assign, mortgage or
encumber this Lease Agreement, nor sublease all or any part of the Premises, or
suffer or permit the Premises or any part thereof to be used by others, without
the prior written consent of Landlord in each instance, which consent shall not
be unreasonably withheld or delayed. If this Lease Agreement be assigned, or if
the Premises or any part thereof be sublet to or occupied by anybody other than
Tenant, Landlord may, at Landlord's option, collect rent form the assignee,
subtenant or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, subletting or occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupants, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an
assignment or subletting shall not be construed to relieve Tenant form obtaining
the express consent in writing of Landlord to any further assignment or
subletting.
16. FEES AND EXPENSES - If Tenant shall default in the observance or
performance of any term or covenant of this Lease Agreement, Landlord may, after
ten (10) days notice to Tenant to cure the default and failure of Tenant to cure
same within such period or to commence and diligently pursue such cure in the
event that same can not be fully performed within ten (10) days, or at anytime
thereafter without notice in the event of emergency, perform the same for the
account of Tenant. If Landlord makes any expenditures or incurs any obligations
in connection with a default by Tenant, including but not limited to, reasonable
attorney's fees, in instituting, prosecuting or defending any action or
proceeding against Tenant, such sums paid or obligations incurred, with interest
(as provided below) and costs, shall be deemed to be
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Additional Rent hereunder and shall be paid by Tenant to Landlord within ten
(10) days of rendition of any bill or statement to Tenant hereunder.
17. NO REPRESENTATIONS BY LANDLORD, ETC. - Landlord has made
no representations or promises with respect to the Building or the
Premises, including the uses permitted under applicable law, except
for representations herein expressly set forth.
(a) Landlord represents to Tenant that he has good right to lease the
Premises as set forth in this Lease agreement and that Landlord will suffer and
permit said Tenant to occupy, possess and enjoy said Premises during the Term as
set forth herein without hinderance or molestation from Landlord or any person
claiming by, from or under Landlord so long as Tenant is not in default of this
Lease Agreement.
(b) Neither Landlord, or any employee or agent of Landlord, shall be
liable to Tenant, its employees, agents or contractors, (i) for any damage or
loss of any property of Tenant or such other person, irrespective of the cause
of such damage or loss unless such damage or loss is a result of Landlord's
negligence or failure to comply with the terms of this Lease Agreement; or (ii)
for any personal injury to Tenant or such other person from any cause, unless
such injury is a result of Landlord's negligence or failure to comply with the
terms of this Lease Agreement.
(c) Tenant shall defend, indemnify and hold harmless Landlord, its
employees and agents against and from all liabilities, including reasonable
attorney's fees, which may be imposed upon or incurred by or asserted against
Landlord or such other persons by reason of any of the following occurring
during the Term or prior thereto when Tenant has been given access to the
Premises: (i) any work or thing done in the Premises by or at the instance of
Tenant, its employees or agents; (ii) any negligence or wrongful act or omission
of Tenant, its employees or agents; (iii) any accident, injury, loss or damage
to any person or property occurring in the Premises unless same arises out of
the negligence of Landlord or its failure to comply with the terms of this Lease
Agreement or the acts, omissions and/or the negligence of the other tenants of
the Building or their visitors; and (iv) any failure on the part of Tenant to
comply with any of the terms of this Lease Agreement.
(d) Any provision of this Lease Agreement which requires Landlord not to
unreasonably withhold its consent shall never be the basis for an award of
damages or give rise to a right of setoff or termination to Tenant, but may be
the basis for a declaratory judgment or specific injunction with respect to the
matter in question.
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(e) The failure of Landlord to insist in any one or more instances upon
the strict performance of any one or more of the agreements, terms, covenants,
conditions or obligations of this Lease Agreement, or to exercise any right,
remedy or election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease Agreement or of the right to exercise such election, but the same
shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission, whether of a similar nature or otherwise.
(f) Tenant's obligations under this Lease Agreement shall survive the
Expiration Date or sooner termination of the Term, as same may be extended
hereunder.
(g) The Building may be designated and known by any name Landlord may
choose, and such name or designation may be changed from time to time in
Landlord's sole discretion.
18. HOLD-OVER TENANCY - If Tenant shall, with the written consent of
Landlord endorsed hereon, or on the duplicate hereof, at any time hold over the
Premises beyond the termination date set forth elsewhere in this Agreement, then
the Tenant shall hold said Premises upon the same terms, and under the same
stipulations, covenants and agreements as contained in this Agreement, and no
holding over by Tenant shall operate to renew this Agreement without such
written consent of Landlord.
19. DEFAULT - (a) If (i) Tenant defaults in the payment when due of any
installment of Minimum Annual Rent or in the payment of Additional Rent and said
default is not cured within ten (10) days of the date of default or (ii) the
Premises become vacant or deserted except as provided in this Lease Agreement or
(iii) Tenant defaults in fulfilling any other covenant of this Lease Agreement
and Tenant fails to remedy such default within twenty (20) days after notice by
Landlord to Tenant specifying the nature of such default (or if said default
cannot be completely cured or remedied within said twenty (20) day period and
Tenant shall not have diligently commenced curing such default within such
twenty (20) day period and shall not thereafter in good faith diligently proceed
to remedy or cure such default) or (iv) Tenant shall file a petition in
bankruptcy or be adjudicated a bankrupt or make an assignment for the benefit of
creditors or take advantage of any insolvency act, then Landlord may, by notice
to Tenant, cancel this Lease Agreement and this Lease Agreement and the Term
hereunder shall end and expire as fully and completely as if the date of
cancellation were the date herein definitely fixed for the end and expiration of
this Lease Agreement and the Term hereof. Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
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(b) If (i) the notice provided for in subsection (a) above shall have been
given and the term shall expire as aforesaid, or (ii) Tenant shall make default
in payment of the Minimum Annual Rent or any item of Additional Rent or any part
of either or in making any other payment herein provided for a period of ten
(10) days after notice by Landlord to Tenant of such default, or (iii), any
execution shall be issued against Tenant or any of Tenant's property, whereupon
the Premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant, then and in any of such events, Landlord may, without
notice, re-enter the Premises, and dispossess Tenant or other occupant of the
Premises, by summary proceedings or otherwise, and remove their effects and hold
the Premises as if this Lease Agreement had not been made. Tenant hereby waives
the service of notice of intention to re-enter or to institute legal proceedings
to that end, but Tenant shall remain liable for damages as hereinafter provided.
(c) It is expressly agreed that no demand for Minimum Annual Rent or
Additional Rent, and no re-entry for condition broken, as at common law, shall
be necessary to enable the Landlord to recover possession of the premises
pursuant to law, and all right to any such demand, or any such re-entry is
hereby expressly waived by the Tenant. It is further agreed that any acceptance
of Minimum Annual Rent or Additional Rent or failure by Landlord to re-enter the
Premises shall not be held to be a waiver of landlord's right to terminate this
Lease Agreement, and Landlord may re-enter and take possession of same as if no
Minimum Annual Rent or Additional Rent has been accepted.
(d) It is expressly agreed that whenever this Lease Agreement shall
terminate by lapse of time or by virtue of any of the express terms and
conditions set forth herein, Tenant hereby waives all right to an Notice to Quit
Possession as prescribed by the statutes relating to Summary Process.
20. REMEDIES OF LANDLORD - In case of any such default, re-entry,
expiration and/or dispossess by summary proceedings or otherwise, (a) the
Minimum Annual rent and Additional rent shall become due thereupon and be paid
up to the time of such re-entry, dispossess and/or expiration, together with
such expenses as Landlord may incur for counsel fees, brokerage commissions
and/or putting the Premises in good order, or for repairs or clean-up of the
Premises; (b) Landlord may re-let the Premises or any part or parts thereof,
either in the name of Landlord or otherwise, for a term or terms, which may at
Landlord's option be less than or exceed the period which would have otherwise
constituted the balance of the Term; and/or (c) Tenant or the legal
representatives of Tenant shall also pay Landlord any deficiency between (i) the
rent hereby reserved and/or covenanted to be paid, and (ii) the net amount if
any of the rents collected on account of the lease or leases of the Premises for
each month of the period which would otherwise have constituted the balance of
the Term.
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There shall be added to such deficiency such reasonable expenses as Landlord may
incur in connection with re-letting of the Premises, including without
limitation, counsel fees, brokerage commissions and expenses incurred in
maintaining the Premises in good order and in connection with renovating and
preparing the same for re-letting. Any such rent deficiency shall be paid in
monthly installments by Tenant on the rent due date specified in this Lease
Agreement, and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month or months by a similar proceeding. Landlord,
at its option, may make such alterations, repairs, replacements and/or
decorations as Landlord considers advisable for the purpose of re-letting the
Premises; and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability hereunder as aforesaid.
In the event of a breach by Tenant of any of the covenants or provisions hereof,
Landlord 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 or other
remedies were not herein provided for. Mention in this Lease Agreement of any
particular remedy shall not preclude Landlord from any other remedy, in law or
in equity.
21. RIGHT TO EXHIBIT PREMISES AND ACCESS TO PREMISES - (a) Landlord
reserves the right to enter the Premises and exhibit same at any reasonable time
to prospective tenants at reasonable times provided said access to and said
exhibition of the Premises is conducted in such a manner as to cause as little
interruption as possible to Tenant's use and enjoyment of the Premises. Landlord
shall also have the right within one hundred and eighty (180) days prior to the
expiration of the Term to place notices on the front of said Premises, or any
part thereof, offering the Premises "To Let" or "For Sale" and Tenant shall
permit the same to remain thereon without hinderance or molestation.
(b) Landlord reserves the right to have its employees and agents enter the
Premises at any reasonable time (and at any time in case of emergency) in order
to gain access to any utility area, which utility area contains equipment and
systems for the Building, and in order to effect necessary repairs and
replacements provided said access to the Premises and said repairs and
replacements are conducted in such a manner as to cause as little interruption
as possible to Tenant's use and enjoyment of the Premises. Such agents may bring
necessary tools and equipment with them and may store same in reasonable places
within the Premises.
23. RULES AND REGULATIONS - Tenant and Tenant's employees, agents,
visitors, invitees and licensees shall observe faithfully and comply strictly
with such Rules and Regulations as Landlord or Landlord's agents may, from time
to time, reasonably adopt.
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24. BROKERAGE - Tenant warrants and represents it has not had or dealt
with any realtor, broker or agent in connection with the negotiation of this
Lease Agreement. Tenant agrees to pay and hold Landlord harmless from any cost,
expense or liability (including costs of suit and attorney's fee's) for any
compensation, commission or charges claimed by any realtor, broker or agent with
respect to this Lease Agreement and the negotiation thereof.
25. FORCE MAJEURE - Landlord and Tenant, respectively, shall not be in
default hereunder if such party is unable to fulfill or is delayed in fulfilling
any of its obligations hereunder, including, without limitation, any obligations
to supply any service hereunder, or any obligations to make repairs or
replacements hereunder, if such party is prevented from fulfilling or is delayed
in fulfilling such obligations by reason of fire or other casualty, strikes or
labor troubles, governmental pre-emption in connection with a national
emergency, shortage of supplies or materials, or by reason of any governmental
authority, or by reason of the condition of supply and demand affected by war or
other emergency, or any other cause beyond its reasonable control. Such
inability or delay by Landlord or Tenant in fulfilling any of their respective
obligations hereunder shall not affect, impair or excuse the other party hereto
from the performance of any of the terms, covenants, conditions, limitations,
provisions or agreements hereunder on its part to rents payable hereunder.
Tenant, shall not, however, be excused hereunder from the payment of Minimum
Annual Rent or Additional Rent for any cause specified in this Section.
26. SECURITY DEPOSIT - (a) Simultaneously with Tenant's execution of this
Lease Agreement, Tenant shall deposit, or cause to be deposited with Landlord
the sum of $7,725.00 (the "Security Deposit") as security for the faithful
performance and observance by Tenant of the terms, conditions and provisions of
this Lease Agreement, including without limitation, the payment of Minimum
Annual Rent. Landlord may seek reimbursement in whole or in part against said
Security Deposit to the extent required for the payment of any Minimum Annual
Rent, or as to any other sum as to which Tenant is in default, or for any sum
which Landlord may expend by reason of Tenant's default in respect to any of the
terms, covenants and conditions of this Lease Agreement, including without
limitation, any damages or deficiency in reletting the Premises accrued before
or after any summary proceedings or other re-entry by Landlord.
(b) In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease Agreement, the
Security Deposit, except as same may have been applied by Landlord in accordance
with this Lease Agreement, shall be returned to Tenant, within thirty (30) days
after the Expiration Date or such earlier termination date of this Lease
Agreement and after Tenant has delivered entire possession of
12
the Premises to Landlord in accordance with all of the terms and conditions of
this Lease Agreement.
(c) In the event that Landlord applies any portion of the Security Deposit
in accordance with the provisions of this Lease Agreement, Tenant shall
immediately upon demand of Landlord reimburse or pay Landlord for the amount of
the Security Deposit so applied so that the amount of the Security Deposit
during the Term shall always be $12,847.00 or an amount equal to two (2) months
of Minimum Annual Rent.
(d) In the event of the leasing or Sale of the Building or of the portion
of the Building in which the Premises are located, Landlord shall have the right
to transfer the Security Deposit as set forth above to the lessee and Landlord
shall thereupon be released by Tenant from all liability in connection with the
Security Deposit. Tenant agrees to look solely to the new landlord in connection
with the Security Deposit, and the provisions hereof shall apply to every
transfer or assignment of the Security Deposit to a new landlord.
(e) Tenant shall not assign or encumber or attempt to assign or encumber
the Security Deposit and neither Landlord nor its successors or assigns shall be
bound by such assignment, encumbrance or attempted assignment or encumbrance.
27. QUIET ENJOYMENT - Upon Tenant paying the Minimum Annual 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, free from any interference,
molestation or acts of Landlord or of anyone claiming by, through or under
Landlord, subject, nevertheless, to the terms and conditions of this Lease
Agreement and to any ground lease or underlying lease as hereinbefore provided.
28. COMPLIANCE WITH LAWS AND ORDINANCES - Landlord represents to Tenant
that to the best of its knowledge and belief, the Building and the Premises, as
they are presently used, comply with all pertinent laws and ordinances as may
currently exist.
29. LEASE STATUS AND NOTICE - (a) Upon request of Landlord from time to
time Tenant will execute and deliver to Landlord an instrument prepared by
Landlord stating, if the same be true, that this Lease Agreement is a true and
exact copy of this Lease Agreement between the parties hereto, that there are no
amendments hereof (or stating what amendments there may be), that the same is
then in full force and effect, and that to the best of Tenant's knowledge, there
are no offsets, defenses or counterclaims with respect to the payment of rent
reserved hereunder or in the performance of the other terms, covenants and
conditions hereof on the part of the Tenant to be performed, and that as of such
date no
13
default has been declared hereunder by either party hereto and Tenant at the
time has no knowledge of any facts or circumstances which it might reasonably
believe would give rise to a default by either party. Such estoppel certificate
required by any party with who Landlord is dealing may be in somewhat altered
form from the above terms.
(b) All notices, demands or communications given under this Lease
Agreement shall be sent to the addresses set forth above, or at such other
addresses as the parties may designate by written notice, and shall be sent
prepaid by certified mail, return receipt requested, and shall be deemed given
on the second day after the date mailed, provided however, that after the
Commencement Date, any notice to Tenant shall be sent to the Building. A copy of
any notice to Landlord alleging a default by Landlord hereunder shall be
simultaneously sent by such mail to Mark R. Feller, Esq., Feller & Marantz, 1234
Summer Street, Suite 420, Stamford, Connecticut 06905.
30. ASSIGNMENTS (a) The covenants, conditions and agreements contained in
this Lease Agreement shall bind and inure to the benefit of Landlord and Tenant
and their respective heirs, distributees, executors, administrators, successors
and except as otherwise provided for in this Lease Agreement, their assigns.
(b) The word Landlord as used in this lease Agreement means only the owner
for the time being of Landlord's interest in this Lease Agreement. In the event
of any assignment of Landlord's interest in this Lease Agreement, the assignor
in each case shall no longer be liable for the performance or observance of any
agreements or conditions on the part of the Landlord to be performed or
observed.
31. SURRENDER OF PREMISES - At the expiration of the Term, Tenant will
peacefully yield up to Landlord the Premises, broom clean, in as good order and
repair as when delivered to Tenant, damage by fire, casualty and ordinary wear
and tear excepted. Any property left by Tenant in the Premises shall be deemed
abandoned by Tenant.
32. DUTY TO MITIGATE - Any remedy of Landlord against Tenant for default
under this Lease Agreement shall be subject to a duty on the part of the
Landlord to mitigate damages. Any remedy of Tenant against Landlord for default
under this Lease Agreement shall be subject to a duty on the part of the Tenant
to mitigate damages.
33. ACCESS TO LOADING DOCK - Tenant, at no additional cost, shall have a
non-exclusive right to the reasonable use and enjoyment of the loading dock now
located in Unit #2, described in Exhibit C and attached hereto and made a part
hereof. At any time after the date of the execution of this Lease Agreement,
Landlord
14
may substitute said right for a substantially similar non-exclusive right to the
reasonable use and enjoyment of another loading loading dock located elsewhere
in the Building.
34. RIGHT OF LANDLORD TO RELOCATE TENANT - At any time after the date of
the execution of this Lease Agreement, Landlord may substitute for the demised
premises other premises in the Building ("new demised premises"), in which event
the new demised premises shall be deemed to be the demised premises for all
purposes under this Lease Agreement, provided the new demised premises shall be
substantially similar to the demised premises in area and appropriateness for
use of Tenant's purposes, and provided Landlord shall give Tenant not less than
sixty (60) days' prior written notice of said substitution. If Tenant is then
occupying the demised premises, Landlord shall pay the reasonable expense of
moving Tenant, and its property and equipment to the new demised premises. If
Tenant is then occupying the demised premises, Landlord shall, at its own
expense, improve the new demised premises with improvements substantially
similar to those located in the demised premises.
35. OPTION TO RENEW - Tenant shall have the right to renew this Lease
Agreement for a term of five (5) years provided Tenant is not in default of said
Lease Agreement. Said renewal shall be on the same terms, covenants,
stipulations and conditions as contained in this Lease Agreement except that the
Minimum Annual Rent for each year of the renewal term shall be increased once in
accordance with the cumulative increase in the cost of living index as published
by the U.S. Department of Labor for the New York metropolitan area. It is
expressly agreed that the Minimum Annual Rent for the renewal term shall be
equal to the base Minimum Annual Rent as increased by the percentage increase in
said cost of living index. Tenant shall give written notice to the Landlord of
its intention to exercise said right to renew this Lease Agreement at least One
Hundred Eighty (180) days prior to the termination date of this Lease Agreement.
Tenant further agrees to increase the Security Deposit on deposit with the
Landlord to an amount equal to two (2) months of the increased Minimum Annual
Rent as set forth above.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the year and day first above written.
LANDLORD: TENANT:
SUNHILL INDUSTRIES, INC.
___________________________ _______________________________
BENSON ZINBARG By Anita Dembiczak
Its Secretary, duly authorized
15
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SB-2’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/31/01 | | 1 | | | | | None on these Dates |
| Filed on: | | 11/25/96 |
| | 9/1/96 | | 1 |
| | 10/1/95 | | 1 |
| List all Filings |
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