Common use of Limitation on Sales Tax Exemption Clause in Contracts

Limitation on Sales Tax Exemption. (a) Any exemption from Sales Taxes resulting from or occasioned by the Agency’s involvement with the Project shall be limited to purchases of property effected by the Lessee or the Sublessee as agent or subagent for the Agency, it being the intent of the parties that no operating expenses of the Lessee or the Sublessee and no purchases of equipment or other personal property (other than Facility Equipment or building materials relating to the Project) shall be subject to an exemption from Sales Taxes because of the Agency’s involvement with the Project. (b) The Lessee covenants and agrees that it shall include the following language (through an attached rider or otherwise) in and as part of each contract, invoice, bill or purchase order entered into by the Lessee or the Sublessee as agent or subagent for the Agency in connection with the New Project: “This contract is being entered into by Wyandanch-Washington Realty LLC, a New York limited liability company/Manhattan Beer Distributors, LLC, a New York limited liability company (collectively, the “Agent”), as agent or subagent for and on behalf of the Town of Babylon Industrial Development Agency (the “Agency”) in connection with a certain project of the Agency for the Agent, consisting in part of the expansion of an office, warehouse and distribution center, to include the expansion of the East Side (approximately 9,720 sf) of the facility; the West Side (approximately 15,387 sf) of the facility; and the South Side (approximately 15,300 sf) of the facility, and certain machinery and equipment therefor, all for incorporation in certain premises located at 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx (the “Premises”). The machinery and apparatus to be incorporated in and used at the Premises shall be exempt from the sales and use taxes levied by the State of New York and the County of Suffolk if the acquisition thereof is effected in accordance with the terms and conditions set forth in the attached Sales Tax Letter of the Agency; and the Agent hereby represents that this [contract, agreement, invoice, bill or purchase order] is in compliance with the terms of the Sales Tax Letter. This [contract, agreement, invoice, bill or purchase order] is non-recourse to the Agency, and the Agency shall not be directly, indirectly or contingently liable or obligated hereunder in any manner or to any extent whatsoever. By execution or acceptance of this [contract, agreement, invoice, bill or purchase order], the [vendor or contractor] hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.” If the Lessee shall fail to include, incorporate by reference or otherwise cause the contract, agreement, invoice, bill or purchase order to be, together with the vendor or contractor, subject to the above applicable language in substantially the above form, such contract, invoice, bill or purchase order shall not be an undertaking on behalf of the Agency and the Agency shall not be entitled to any of the benefits able to be conferred by the Agency, and the Lessee shall not claim any sales or use tax benefits or exemptions with respect to any such contract, invoice, bill or purchase order and the Lessee shall return to the Agency any such benefits or exemptions so taken, together with interest on such amount at the rate of twelve percent (12%) per annum, from the date of such taking. (c) On the Commencement Date, the Agency shall make available to the Lessee the Sales Tax Letter. The Agency, at the sole cost and expense of the Lessee, shall also execute such other authorizations, letters and documents (and such amendments to the Sales Tax Letter) as may be reasonably necessary to permit the Lessee to obtain the intended benefits hereunder. Subject to the terms of this Agreement, it is intended that the aggregate scope of the sales and use tax benefits received by the Lessee pursuant to this Agreement and the Sales Tax Letter shall be limited in duration to February 3, 2012: (i) The Sales Tax Letter shall be dated the date hereof and shall be effective for a term commencing on its date and expiring upon the earliest of (1) the termination of this Agreement, (2) February 3, 2012, or (3) the termination of the Sales Tax Letter pursuant to the terms thereof. (ii) The authorizations set forth in the Sales Tax Letter shall automatically be suspended twenty (20) days after notice to the Lessee that the Lessee shall be in default under this Agreement until the Lessee shall pay any amounts due, and perform all of its obligations, with respect to any such default. (iii) The sales and use tax exemption to be provided pursuant to the Sales Tax Letter (A) shall not be available for payment of any costs other than the costs of the Project or for any items of personalty other than Facility Equipment, (B) shall only be utilized for items of building materials for incorporation into the Improvements and Facility Equipment which shall be purchased, completed or installed for use only by the Lessee and the Sublessee and their Affiliates at the Facility Realty (and not with any intention to sell, transfer or otherwise dispose of any such items of property to a Person as shall not constitute the Lessee or the Sublessee or an Affiliate), it being the intention of the Agency and the Lessee that the sales and use tax exemption shall not be made available with respect to any item unless such item is used solely by the Lessee, the Sublessee and their Affiliates at the Facility Realty, (C) shall not be available for any item of building materials which is not to be incorporated as part of the Improvements,

Limitation on Sales Tax Exemption. (a) Any exemption from Sales Taxes resulting from or occasioned by the Agency’s involvement with the Project shall be limited to purchases of property effected by the Lessee or as agent and the Sublessee as sub-agent or subagent for the Agency, it being the intent of the parties that no operating expenses of the Lessee or the Sublessee and no purchases of equipment or other personal property (other than Facility Equipment or building materials relating to the Project) shall be subject to an exemption from Sales Taxes because of the Agency’s involvement with the Project. (b) The Lessee covenants and agrees the Sublessee covenant and agree that it they each shall include the following language (through an attached rider or otherwise) in and as part of each contract, invoice, bill or purchase order entered into by the Lessee as agent or the Sublessee as sub-agent or subagent for the Agency in connection with the New Project: “This contract [contract, agreement, invoice, bill or purchase order] is being entered into by Wyandanch-Washington Realty LLC, a New York limited liability company/Manhattan Beer Distributors[JMDH Real Estate of Babylon, LLC, a New York Delaware limited liability company/ RD America, LLC, a Delaware limited liability company (collectively, the “Agent”), as agent or subagent for and on behalf of the Town of Babylon Industrial Development Agency (the “Agency”) in connection with a certain project (the “Project”) of the Agency for the AgentJMDH Real Estate of Babylon, LLC and RD America, LLC, consisting in part of the expansion acquisition by the Agency of a 12 acre parcel of land and renovation and equipping of an officeapproximately 156,000 square foot warehouse facility for use by the Sublessee in its business of wholesale food service distribution to be located in 1966 Broadhollow Road, warehouse and distribution centerin Farmingdale, to include the expansion of the East Side (approximately 9,720 sf) of the facility; the West Side (approximately 15,387 sf) of the facility; and the South Side (approximately 15,300 sf) of the facility, and certain machinery and equipment therefor, all for incorporation in certain premises located at 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx New York (the “Premises”). The machinery improvements to be used for the Project and apparatus materials to be incorporated as building materials in and used at the Premises which is the subject of this [contract, agreement, invoice, bill or purchase order] shall be exempt from the sales and use taxes levied by the State of New York and the County of Suffolk if the acquisition thereof is effected in accordance with the terms and conditions set forth in the attached Sales Tax Letter of the Agency; and the Agent hereby represents that this [contract, agreement, invoice, bill or purchase order] is in compliance with the terms of the Sales Tax Letter. This [contract, agreement, invoice, bill or purchase order] is non-recourse to the Agency, and the Agency shall not be directly, indirectly or contingently liable or obligated hereunder in any manner or to any extent whatsoever. By execution or acceptance of this [contract, agreement, invoice, bill or purchase order], the [vendor or contractor] hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.” If the Lessee or the Sublessee as the case may be shall fail to include, incorporate by reference or otherwise cause the contract, agreement, invoice, bill or purchase order to be, together with the vendor or contractor, subject to the above applicable language in substantially the above form, such contract, invoice, bill or purchase order shall not be an undertaking on behalf of the Agency and the Agency shall not be entitled to any of the benefits able to be conferred by the Agency, and neither the Lessee nor the Sublessee shall not claim any sales or use tax benefits or exemptions with respect to any such contract, invoice, bill or purchase order and the Lessee shall return to the Agency any such benefits or exemptions so taken, together with interest on such amount at the rate of twelve percent (12%) per annum, from the date of such taking. (c) On the Commencement Date, the Agency shall make available to the Lessee and the Sublessee the Sales Tax Letter. The Agency, at the sole cost and expense of the LesseeLessee or the Sublessee, as the case may be, shall also execute such other authorizations, letters and documents (and such amendments to the Sales Tax Letter) as may be reasonably necessary to permit the Lessee and the Sublessee to obtain the intended benefits hereunderthereunder. Subject to the terms of this Agreement, it is intended that the aggregate scope of the sales and use tax benefits received by the Lessee and the Sublessee pursuant to this Agreement and the Sales Tax Letter shall be limited in duration to February 325, 20122011: (i) The Sales Tax Letter shall be dated the date hereof and shall be effective for a term commencing on its date and expiring upon the earliest of (1) the termination of this Agreement, (2) February 325, 20122011, or (3) the termination of the Sales Tax Letter pursuant to the terms thereof. (ii) The authorizations set forth in the Sales Tax Letter shall automatically be suspended twenty (20) days after notice to the Lessee or the Sublessee that the Lessee or the Sublessee shall be in default under this Agreement or the Sublessee Agreement period until the Lessee or the Sublessee as the case may be shall pay any amounts due, and perform all of its obligations, with respect to any such default. (iii) The sales and use tax exemption to be provided pursuant to the Sales Tax Letter: (A) shall not be available for payment of any costs other than the costs of the Project or for any items of personalty other than except Facility EquipmentEquipment and building materials utilized with respect to the Project, (B) shall only be utilized for items of building materials for incorporation into the Improvements and Facility Equipment which shall be purchased, completed or installed for use only by the Lessee and and/or the Sublessee and their Affiliates at the Facility Realty (and not with any intention to sell, transfer or otherwise dispose of any such items of property to a Person as shall not constitute the Lessee or the Sublessee or an Affiliate), it being the intention of the Agency and the Lessee that the sales and use tax exemption shall not be made available with respect to any item of building materials or Facility Equipment unless such item is used solely by the Lessee, the Sublessee and their Affiliates at the Facility Realty, , (C) shall not be available for any item of building materials which is not to be incorporated as part of the Improvements, (D) (Reserved) (E) shall not be available for any date subsequent to which the Sales Tax Letter shall have been suspended as provided in Section 2.4(c)(ii) hereof; provided, however, that in the event the Lessee or the Sublessee shall thereafter cure any defaults under this Agreement, or the Agency shall thereafter waive such suspension, as applicable, the sales and use tax exemption shall again continue from the date of such cure or such waiver, (F) shall not be available for or with respect to any tangible personal property having a useful life of less than one year, and shall be available only if purchased by the Lessee or the Sublessee as agent or sub-agent respectively for the Agency for use by the Lessee or the Sublessee and any of their Affiliates at the Facility Realty, (G) (Reserved) (H) shall not be available for any cost of utilities, cleaning service or maintenance supplies, (I) shall not be available subsequent to the termination of this Agreement, and (J) shall only be available for those costs as set forth as permitted hereunder. (iv) In the event that the Lessee or the Sublessee shall utilize the sales or use tax exemption provided pursuant to the Sales Tax Letter in violation of the provisions of paragraph (c)(iii) of this Section 2.4, the Lessee or the Sublessee shall promptly deliver notice of same to the Agency, and the Lessee or the Sublessee as the case may be shall, upon demand by the Agency, pay to the Agency a return of sales or use tax exemptions in an amount equal to all such unauthorized sales or use tax exemptions together with interest at the rate of twelve percent (12%) per annum from the date and with respect to the dollar amount for which each such unauthorized sales or use tax exemption was availed of by the Lessee. (v) The Lessee shall, on or before January 1 of each year, commencing January 1, 2010, and ending on the earlier of the termination of this Agreement or January 1, 2011 deliver to the Agency a certificate of an Authorized Representative of the Lessee certifying (i) as to each sales or use tax exemption availed of by the Lessee and the Sublessee the dollar amount of same and the date availed of, all as availed of by the Lessee or the Sublessee in the immediately preceding calendar year (i.e., January 1 through December 31 for the certificate to be delivered on January 1, except that the first such period shall commence on the Commencement Date through January 1, 2010), and the specific items of Project costs to which they shall relate, (ii) that all such sales or use tax exemptions so availed of were in compliance with the provisions of the Sales Tax Letter and Section 2.4(c) hereof, and (iii) as to the dollar amount of all sales and use tax exemptions availed of by the Lessee and the Sublessee from the Commencement Date through the end of the calendar year period to which such certificate shall relate. (vi) Upon request by the Agency of, and reasonable notice to, the Lessee and the Sublessee, the Lessee and the Sublessee shall make available at reasonable times to the Agency and the Independent Accountant all such books and records of the Lessee and the Sublessee as the case may be and require all appropriate officers and employees of the Lessee and the Sublessee to respond to reasonable inquiries by the Agency and the Independent Accountant, as shall be necessary to indicate in reasonable detail those costs to which the Lessee shall have utilized the Sales Tax Letter and the dates and amounts so utilized. (vii) The Lessee or the Sublessee shall use its best efforts to obtain covenants to the Agency from each materialman, supplier, vendor or laborer to whom the Sales Tax Letter is presented by the Lessee or the Sublessee to the effect that such materialman, supplier, vendor or laborer shall not utilize the Sales Tax Letter for any purpose other than for the Project. (viii) Any expenditure made by the Lessee or the Sublessee for the acquisition of Facility Equipment or building materials in conjunction with the use of the Sales Tax Letter shall constitute payment of rent hereunder. (d) The Lessee and the Sublessee shall observe and comply with the terms and conditions of the Sales Tax Letter. (e) The Lessee shall annually file a statement (Form ST-340 or any successor or additional mandated form) with the New York State Department of Taxation and Finance, in the form of Schedule B attached hereto or a form and in a manner and consistent with such regulations as is or may be prescribed by the Commissioner of the New York State Department of Taxation and Finance, of the value of all sales and use tax exemptions claimed by the Lessee, the Sublessee, or agents of the Lessee or the Sublessee in connection with the Project and the Facility as required by Section 874(8) of the New York State General Municipal Law (as the same may be amended from time to time), including, but not limited to, consultants or subcontractors of such agents, under the authority granted pursuant to this Agreement. The Lessee shall furnish a copy of such annual statement to the Agency at the time of filing with the Department of Taxation and Finance. Should the Lessee fail to comply with the foregoing requirement, the Lessee and the Sublessee shall immediately cease to be the agent and the sub- agent for the Agency in connection with the Project (such agency relationship being deemed to be immediately revoked) without any further action of the parties, the Lessee and the Sublessee shall be deemed to have automatically lost their authority as agents of the Agency to purchase and/or lease property in the Agency’s behalf, and shall desist immediately from all such activity, and shall immediately and without demand return to the Agency the Sales Tax Letter issued to the Lessee and the Sublessee by the Agency which is in the Lessee’s or the Sublessee's possession or in the possession of any agent of the Lessee or the Sublessee. Nothing herein shall be construed as a representation by the Agency that any property acquired as part of the Project is or shall be exempt from sales taxes or use taxes under the laws of the State.

Limitation on Sales Tax Exemption. (a) Any exemption from Sales Taxes resulting from or occasioned by the Agency’s involvement with the Project shall be limited to purchases of property effected by the Lessee or the Sublessee as agent or subagent for the Agency, it being the intent of the parties that no operating expenses of the Lessee or the Sublessee and no purchases of equipment or other personal property (other than Facility Equipment or building materials relating to the Project) shall be subject to an exemption from Sales Taxes because of the Agency’s involvement with the Project. (b) The Lessee covenants and agrees that it shall include the following language (through an attached rider or otherwise) in and as part of each contract, invoice, bill xxxx or purchase order entered into by the Lessee or the Sublessee as agent or subagent for the Agency in connection with the New Project: “This contract is being entered into by Wyandanch-Washington Realty LLC, a New York limited liability company/Manhattan Beer Distributors[Xxxxxxxxx XX Realty, LLC, a New York limited liability company / R & J Graphics, Inc., a New York corporation] (collectively, the “Agent”), as agent or subagent for and on behalf of the Town of Babylon Industrial Development Agency (the “Agency”) in connection with a certain project of the Agency for the AgentAgent and (the “Company”), consisting in part of the expansion acquisition of an officea manufacturing, warehouse office and distribution center, to include the expansion of the East Side (approximately 9,720 sf) of the facility; the West Side (approximately 15,387 sf) of the facility; and the South Side (approximately 15,300 sf) of the facility, storage facility and certain machinery and equipment therefor, all for incorporation in certain premises located at 0 Xxxxxxxxxx 00 Xxxxxxx Xxxxxx, XxxxxxxxxXxxxxxxxxxx, Xxx Xxxx (the “Premises”). The machinery and apparatus to be incorporated in and used at the Premises shall be exempt from the sales and use taxes levied by the State of New York and the County of Suffolk if the acquisition thereof is effected in accordance with the terms and conditions set forth in the attached Sales Tax Letter of the Agency; and the Agent hereby represents that this [contract, agreement, invoice, bill xxxx or purchase order] is in compliance with the terms of the Sales Tax Letter. This [contract, agreement, invoice, bill xxxx or purchase order] is non-non- recourse to the Agency, and the Agency shall not be directly, indirectly or contingently liable or obligated hereunder in any manner or to any extent whatsoever. By execution or acceptance of this [contract, agreement, invoice, bill xxxx or purchase order], the [vendor or contractor] hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.” If the Lessee shall fail to include, incorporate by reference or otherwise cause the contract, agreement, invoice, bill xxxx or purchase order to be, together with the vendor or contractor, subject to the above applicable language in substantially the above form, such contract, invoice, bill xxxx or purchase order shall not be an undertaking on behalf of the Agency and the Agency shall not be entitled to any of the benefits able to be conferred by the Agency, and the Lessee shall not claim any sales or use tax benefits or exemptions with respect to any such contract, invoice, bill xxxx or purchase order and the Lessee shall return to the Agency any such benefits or exemptions so taken, together with interest on such amount at the rate of twelve percent (12%) per annum, from the date of such taking. (c) On the Commencement Date, the Agency shall make available to the Lessee the Sales Tax Letter. The Agency, at the sole cost and expense of the Lessee, shall also execute such other authorizations, letters and documents (and such amendments to the Sales Tax Letter) as may be reasonably necessary to permit the Lessee to obtain the intended benefits hereunder. Subject to the terms of this Agreement, it is intended that the aggregate scope of the sales and use tax benefits received by the Lessee pursuant to this Agreement and the Sales Tax Letter shall be limited in duration to February 3September 30, 20122011: (i) The Sales Tax Letter shall be dated the date hereof and shall be effective for a term commencing on its date and expiring upon the earliest of (1) the termination of this Agreement, (2) February 3September 30, 20122011, or (3) the termination of the Sales Tax Letter pursuant to the terms thereof. (ii) The authorizations set forth in the Sales Tax Letter shall automatically be suspended twenty (20) days after notice to the Lessee that the Lessee shall be in default under this Agreement until the Lessee shall pay any amounts due, and perform all of its obligations, with respect to any such default. (iii) The sales and use tax exemption to be provided pursuant to the Sales Tax Letter (A) shall not be available for payment of any costs other than the costs of the Project or for any items of personalty other than Facility Equipment, (B) shall only be utilized for items of building materials for incorporation into the Improvements and Facility Equipment which shall be purchased, completed or installed for use only by the Lessee and the Sublessee and their Affiliates at the Facility Realty (and not with any intention to sell, transfer or otherwise dispose of any such items of property to a Person as shall not constitute the Lessee or the Sublessee or an Affiliate), it being the intention of the Agency and the Lessee that the sales and use tax exemption shall not be made available with respect to any item unless such item is used solely by the Lessee, the Sublessee and their Affiliates at the Facility Realty, (C) shall not be available for any item of building materials which is not to be incorporated as part of the Improvements,

Limitation on Sales Tax Exemption. (a) Any exemption from Sales Taxes resulting from or occasioned by the Agency’s 's involvement with the Project shall be limited to purchases of property Eligible Materials effected in whole from Bond proceeds or funds provided by or for the benefit of the Lessee or the Sublessee as agent or subagent for of the Agency, it being the intent of the parties that no operating expenses of the Lessee or the Sublessee and no purchases of equipment or other personal property (other than Facility Equipment or building materials relating to the ProjectEligible Materials) shall be subject to an exemption from Sales Taxes because of the Agency’s 's involvement with the Project. The Lessee shall be entitled to an amount of sales and use tax exemptions pursuant to the Sales Tax Letter until the earlier of (w) the termination of this Agreement, (x) the completion of the Project as provided in Section 2.2 hereof, (y) January 15, 2004 or (z) receipt by the Lessee of notice from the Agency of the termination of the Sales Tax Letter. (b) The Lessee covenants and agrees that it shall include or cause to be included the following language (through an attached rider or otherwise) in and as part of each contract, invoice, bill xxxx or purchase order entered into by the Lessee or the Sublessee as agent or subagent for the Agency in connection with the New Project: “. "This contract is being entered into by Wyandanch-Washington Realty LLC[Technology Flavors & Fragrances, Inc., a New York limited liability company/Manhattan Beer Distributors, LLC, a New York limited liability company corporation organized under the laws of the State of Delaware] (collectively, the “"Agent”"), as agent or subagent for and on behalf of the Town of Babylon Industrial Development Agency (the “"Agency”") in connection with a certain project of the Agency for the Agent, consisting in part of the expansion acquisition, construction and equipping of an officecertain industrial facilities in the business of the manufacture, warehouse warehousing and distribution center, to include the expansion of the East Side (approximately 9,720 sf) of the facility; the West Side (approximately 15,387 sf) of the facility; flavors and the South Side (approximately 15,300 sf) of the facility, and certain machinery and equipment therefor, all for incorporation in certain premises fragrance products located at 0 Xxxxxxxxxx Xxxxxx00 Xxxxxx Xxxxxx Xxxx in Amityville, Xxxxxxxxx, Xxx Xxxx New York (the “"Premises”"). The machinery items of personalty and apparatus building materials to be incorporated in and used at the Premises which is the subject of this [contract, agreement, invoice, xxxx or purchase order] shall be exempt from the sales and use taxes levied by the State of New York and the County of Suffolk any political subdivision thereof if the acquisition thereof is effected in accordance with the terms and conditions set forth in the attached Sales Tax Letter of the Agency; and the Agent hereby represents that this [contract, agreement, invoice, bill xxxx or purchase order] is in compliance with the terms of the Sales Tax Letter. This [contract, agreement, invoice, bill or purchase order, xxxx of sale, invoice or contract] is non-recourse to the Agency, and the Agency shall not be directly, indirectly or contingently liable or obligated hereunder in any manner or to any extent whatsoever. By execution or acceptance of this [contractpurchase order, agreementxxxx of sale, invoice, bill or purchase ordercontract], the [vendor or contractor] hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.” " If the Lessee shall fail or shall fail to includecause to be included, incorporate incorporated by reference or otherwise cause the contract, agreement, invoice, bill xxxx or purchase order to be, together with the vendor or contractor, subject to the above applicable language in substantially the above form, such contract, invoice, bill xxxx or purchase order shall not be an undertaking on behalf of the Agency and the Agency shall not be entitled to any of the benefits able to be conferred by the Agency, and the Lessee shall not claim any sales or use tax benefits or exemptions with respect to any such contract, invoice, bill xxxx or purchase order and the Lessee shall return to the Agency any such benefits or exemptions so taken, together with interest on such amount at the rate of twelve percent (12%) per annum, from the date of such taking. (c) On Concurrently with the Commencement Dateexecution of this Agreement, the Agency shall make available to the Lessee the Sales Tax Letter. The Agency, at the sole cost and expense of the Lessee, and at the Agency's sole discretion shall also execute such other authorizations, letters and documents (and such amendments to the Sales Tax Letter) as may reasonably be reasonably necessary to permit the Lessee to obtain the intended benefits hereunder. Subject to the terms of this Agreement, it is intended that the aggregate scope of the sales and use tax benefits received by the Lessee pursuant to this Agreement and the Sales Tax Letter shall be limited in duration to February 3, 2012as set forth below: (i) The Sales Tax Letter shall be dated the date hereof of original issuance of the Series 2002 Bonds and shall be effective for a term commencing on its date and expiring upon the earliest of (1) the termination of this Agreement, (2) February the completion of the Project as provided in Section 2.2 hereof, (3) January 15, 20122004, or (34) the termination of the Sales Tax Letter pursuant to the terms thereofSection 7.2 hereof. (ii) The authorizations set forth in the Sales Tax Letter shall automatically be suspended twenty (20) days after notice to the Lessee that the Lessee an event of default shall be in default have occurred under this Agreement until the Lessee shall pay any amounts due, and perform all of its obligations, obligations with respect to any such default. (iii) The sales and use tax exemption to be provided pursuant to the Sales Tax Letter (A) shall not be available for payment of any costs other than the costs of the Project Eligible Materials for incorporation into or for any items of personalty other than Facility Equipmentuse at the Facility, (B) shall only be utilized for items of building materials for incorporation into the Improvements and Facility Equipment Eligible Materials which shall be purchased, completed or installed for use only by the Lessee and the Sublessee and their Affiliates only at the Facility Realty (and not with any intention to sell, transfer or otherwise dispose of any such items of property Eligible Materials to a Person person as shall not constitute the Lessee or the Sublessee or an AffiliateLessee), it being the intention of the Agency and the Lessee that the sales and use tax exemption shall not be made available with respect to any item of Eligible Materials unless such item is used solely by the Lessee at the Facility, (C) shall only be available if that portion of the costs of the Eligible Materials for which the sales and use tax exemption is sought is paid for in whole and/or reimbursed in whole from the proceeds of the Bonds or funds of the Lessee, (D) [RESERVED], (E) shall not be available for any date subsequent to which the Sales Tax Letter shall have been suspended as provided in Section 2.5(c)(ii) hereof, provided, however, that in the event the Lessee shall thereafter cure any defaults under this Agreement, or the Agency shall thereafter waive such suspension, as applicable, the Sublessee sales and their Affiliates use tax exemption shall again continue from the date of such cure or such waiver, (F) shall not be available for or with respect to any tangible personal property having a useful life of less than one year, and shall be available only if purchased by the Lessee as agent for the Agency for use by the Lessee only at the Facility RealtyFacility, (G) [RESERVED], (H) shall not be available for any cost of utilities, cleaning service or supplies, (CI) shall not be available for any item the acquisition or leasing of building materials which would otherwise be exempt from Sales Taxes absent involvement by the Agency, (J) shall not be available subsequent to the termination of this Agreement, and (iv) In the event that the Lessee shall utilize the sales or use tax exemption authorization provided pursuant to the Sales Tax Letter in violation of the provisions of Section 2.5(c)(iii) hereof, the Lessee shall promptly deliver notice of same to the Agency, and the Lessee shall, upon demand by the Agency, pay to or at the direction of the Agency a return of sales or use tax exemptions in an amount equal to all such unauthorized sales or use tax exemptions together with interest at the rate of twelve percent (12%) per annum from the date and with respect to the dollar amount for which each such unauthorized sales or use tax exemption was availed of by the Lessee. (v) The sales and use tax exemption authorizations provided to the Lessee under the Sales Tax Letter and this Agreement availed of by the Lessee shall extend both to those costs of Eligible Materials the paymentfor which shall first be made from the proceeds of the Series 2002 Bonds as well as to those costs of the Eligible Materials the payment of which is not to be incorporated reimbursed from the proceeds of the Bonds or funds of the Lessee. (vi) Upon request by the Agency of, and reasonable notice to the Lessee, the Lessee shall make available at reasonable times to the Agency and the Independent Accountant all such books and records of the Lessee and require all appropriate officers and employees of the Lessee to respond to reasonable inquiries by the Agency as shall be necessary to indicate in reasonable detail those costs to which the Lessee shall have utilized the Sales Tax Letter and the dates and amounts so utilized. (vii) The Lessee shall use its best efforts to obtain covenants to the Agency from each materialman, supplier, vendor or laborer to whom the Sales Tax Letter is presented by the Lessee to the effect that such materialman, supplier, vendor or laborer shall not utilize the Sales Tax Letter for any purpose other than for the acquisition of Eligible Materials for incorporation into the Leased Premises. (d) The Lessee shall observe and comply with the terms and conditions of the Sales Tax Letter. (e) The Lessee shall annually file a statement with the New York State Department of Taxation and Finance, in the form of Form ST-340 attached hereto as Schedule B or any successor form of the State and in a manner and consistent with such regulations as is or may be prescribed by the Commissioner of the New York State Department of Taxation and Finance, of the value of all sales and use tax exemptions claimed by the Lessee or agents of the Lessee in connection with the Project and the Facility as required by Section 874(8) of the New York State General Municipal Law (as the same may be amended from time to time), including, but not limited to, consultants or subcontractors of such agents, under the authority granted pursuant to this Agreement. The Lessee shall furnish a copy of such annual statement to the Agency at the time of filing with the Department of Taxation and Finance. Should the Lessee fail to comply with the foregoing requirement, the Lessee shall immediately cease to be the agent of the Agency in connection with the Project (such agency relationship being deemed to be immediately revoked) without any further action of the parties, the Lessee shall be deemed to have automatically lost its authority as agent of the Agency to purchase Eligible Materials on the Agency's behalf, and shall desist immediately from all such activity, and shall immediately and without demand return to the Agency the Sales Tax Letter issued to the Lessee by the Agency which is in the Lessee's possession or in the possession of any agent of the Lessee. Nothing herein shall be construed as a representation by the Agency that any property acquired as part of the Improvements,Project is or shall be exempt from sales taxes or use taxes under the laws of the State. (f) Simultaneous with the execution hereof, the Agency shall file form ST-60 with the form attached hereto as Schedule C.

Limitation on Sales Tax Exemption. (a) Any exemption from Sales Taxes resulting from or occasioned by the Agency’s involvement with the Project shall be limited to purchases and installation of property Facility Equipment and the undertaking of Facility Improvements effected by the Lessee or the Sublessee Company as agent or subagent for the Agency, it being the intent intention of the parties that no operating expenses of the Lessee or the Sublessee and no purchases of equipment or other personal property (other than Facility Equipment or building materials relating to the Project) Company shall be subject to an exemption from Sales Taxes because of the Agency’s involvement with the Project. (b) The Lessee Company covenants and agrees that it shall include language in substantially the following language form (through an attached rider or otherwise) in and as part of each contract, invoice, bill or purchase order entered into by the Lessee or the Sublessee Company as agent or subagent for the Agency in connection with the New Project: “This contract is being entered into by Wyandanch-Washington Realty LLC, a New York limited liability company/Manhattan Beer Distributors, Runway Hotel LLC, a New York limited liability company (collectively, the “Agent”), as agent or subagent for and on behalf of the Town of Babylon Industrial Development Agency (the “Agency”) in connection with a certain project (the “Project”) of the Agency for the AgentRunway Hotel LLC, consisting in part of the expansion acquisition, construction and equipping of an office, warehouse a 131 room courtyard by Marriott Hotel facility and distribution center, conference center to include the expansion of the East Side (approximately 9,720 sf) of the facility; the West Side (approximately 15,387 sf) of the facility; and the South Side (approximately 15,300 sf) of the facility, and certain machinery and equipment therefor, all for incorporation in certain premises be located at 0 Xxxxxxxxxx Xxxxxxthe intersection of Route 110 and Republic Airport Access Road, Xxxxxxxxxin East Farmingdale, Xxx Xxxx New York in the Town of Babylon (the “PremisesFacility”)) and the acquisition from time to time of machinery, furnishings, equipment, furniture, fixtures and other tangible personal property for use by the Agent with respect to the Project or at the Facility. The machinery equipment and apparatus personalty to be acquired for the Project as well as materials to be incorporated as building materials in and used at the Premises Facility which is the subject of this [contract, agreement, invoice, bill or purchase order] shall be exempt from the sales and use taxes levied by the State of New York and the County of Suffolk if the acquisition thereof is effected in accordance with the terms and conditions set forth in the attached Preliminary Sales Tax Letter of the Agency; and the Agent hereby represents that this [contract, agreement, invoice, bill or purchase order] is in compliance with the terms of the Preliminary Sales Tax Letter. This [contract, agreement, invoice, bill or purchase order] is non-recourse to the Agency, and the Agency shall not be directly, indirectly or contingently liable or obligated hereunder in any manner or to any extent whatsoever. By execution or acceptance of this [contract, agreement, invoice, bill or purchase order], the [vendor or contractor] hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.” If the Lessee Company shall fail to include, incorporate by reference or otherwise cause the contract, agreement, invoice, bill or purchase order to be, together with the vendor or contractor, subject to the above applicable language in substantially the above form, such contract, invoice, bill or purchase order shall not be an undertaking on behalf of the Agency and the Agency shall not be entitled to any of the benefits able to be conferred by the Agency, and the Lessee Company shall not claim any sales or use tax benefits or exemptions with respect to any such contract, invoice, bill or purchase order and the Lessee Company shall return to the Agency any such benefits or exemptions so taken, together with interest on such amount at the rate of twelve percent (12%) per annum, from the date of such taking. (c) On the Commencement Date, the Agency shall make available to the Lessee Company the Sales Tax Letter. The Agency, at the sole cost and expense of the Lessee, Company shall also execute such other authorizations, letters and documents (and such amendments to the Sales Tax Letter) as may be reasonably necessary to permit the Lessee Company to obtain the intended benefits hereunderthereunder. Subject to the terms of this Agreement, it is intended that the aggregate scope of the sales and use tax benefits received by the Lessee Company pursuant to this Agreement and the Sales Tax Letter shall be limited in duration to February 3April 7, 20122008: (i) The Sales Tax Letter shall be dated the date hereof and shall be effective for a term commencing on its date and expiring upon the earliest of (1) the termination of this Agreement, (2) February 3April 7, 20122008, or (3) the termination of the Sales Tax Letter pursuant to the terms thereof. (ii) The authorizations set forth in the Sales Tax Letter shall automatically be suspended twenty (20) days after notice to the Lessee Company that the Lessee Company shall be in default under this Agreement until the Lessee Company as the case may be shall pay any amounts due, and perform all of its obligations, with respect to any such default. (iii) The sales and use tax exemption to be provided pursuant to the Sales Tax LetterTax (A) shall not be available for payment of any costs other than the costs of the Project or for any items of personalty other than except Facility EquipmentEquipment and building materials utilized with respect to the Project, (B) shall only be utilized for items of Facility Improvements, building materials for incorporation into the Improvements and Facility Equipment which shall be purchased, completed or installed for use only by the Lessee Company and the Sublessee and their its Affiliates at the Facility Realty Land (and not with any intention to sell, transfer or otherwise dispose of any such items of property to a Person as shall not constitute the Lessee or the Sublessee Company or an Affiliate), it being the intention of the Agency and the Lessee Company that the sales and use tax exemption shall not be made available with respect to any item of building materials or Facility Equipment unless such item is used solely by the Lessee, the Sublessee Company and their Affiliates at the Facility Realty, Land, (C) shall not be available for any item of building materials which is not to be incorporated as part of the Facility Improvements, (D) (Reserved) (E) shall not be available for any date subsequent to which the Sales Tax Letter shall have been suspended as provided in Section 2.4(c)(ii) hereof; provided, however, that in the event the Company shall thereafter cure any defaults under this Agreement, or the Agency shall thereafter waive such suspension, as applicable, the sales and use tax exemption shall again continue from the date of such cure or such waiver, (F) shall not be available for or with respect to any tangible personal property having a useful life of less than one year, and shall be available only if purchased by the Company as agent for the Agency for use by the Company or its Affiliates at the Facility, (G) (Reserved) (H) shall not be available for any cost of utilities cleaning service or maintenance supplies, (I) shall not be available subsequent to the termination of this Agreement, and (J) shall only be available for those costs as set forth as permitted hereunder. (iv) In the event that the Company shall utilize the sales or use tax exemption provided pursuant to the Sales Tax Letter in violation of the provisions of paragraph (c)(iii) of this Section 2.4, the Company shall promptly deliver notice of same to the Agency, and the Company shall, upon demand by the Agency, pay to the Agency a return of sales or use tax exemptions in an amount equal to all such unauthorized sales or use tax exemptions together with interest at the rate of twelve percent (12%) per annum from the date and with respect to the dollar amount for which each such unauthorized sales or use tax exemption was availed of by the Company. (v) The Company shall, on or before January 1 of each year, commencing January 1, 2007, and ending on the earlier of the termination of this Agreement and January 1, 2009, deliver to the Agency a certificate of an Authorized Representative of the Company certifying (i) as to each sales or use tax exemption availed of by the Company the dollar amount of same and the date availed of, all as availed of by the Company in the immediately preceding calendar year (i.e., January 1 through December 31 for the certificate to be delivered on January 1, except that the first such period shall commence on the Commencement Date through January 1, 2007), and the specific items of Project costs to which they shall relate, (ii) that all such sales or use tax exemptions so availed of were in compliance with the provisions of the Sales Tax Letter and Section 2.4(c) hereof, and (iii) as to the dollar amount of all sales and use tax exemptions availed of by the Company from the Commencement Date through the end of the calendar year period to which such certificate shall relate. (vi) Upon request by the Agency of, and reasonable notice to, the Company, the Company shall make available at reasonable times to the Agency and the Independent Accountant all such books and records of the Company as the case may be and require all appropriate officers and employees of the Company to respond to reasonable inquiries by the Agency and the Independent Accountant, as shall be necessary to indicate in reasonable detail those costs to which the Company shall have utilized the Sales Tax Letter and the dates and amounts so utilized. (vii) Any expenditure made by the Company for the acquisition of Facility Equipment or Facility Improvements in conjunction with the use of the Sales Tax Letter shall constitute payment of rent hereunder. (d) The Company shall observe and comply with the terms and conditions of the Sales Tax Letter. (e) The Company shall annually file a statement (Form ST-340 or any successor or additional mandated form) with the New York State Department of Taxation and Finance, in the form of Schedule B attached hereto or a form and in a manner and consistent with such regulations as is or may be prescribed by the Commissioner of the New York State Department of Taxation and Finance, of the value of all sales and use tax exemptions claimed by the Company, or agents of the Company in connection with the Project and the Facility as required by Section 874(8) of the New York State General Municipal Law (as the same may be amended from time to time), including, but not limited to, consultants or subcontractors of such agents, under the authority granted pursuant to this Agreement. The Company shall furnish a copy of such annual statement to the Agency at the time of filing with the Department of Taxation and Finance. Should the Company fail to comply with the foregoing requirement, the Company shall immediately cease to be the agent for the Agency in connection with the Project (such agency relationship being deemed to be immediately revoked) without any further action of the parties, the Company shall be deemed to have automatically lost its authority as agents of the Agency to purchase and/or lease property in the Agency’s behalf, and shall desist immediately from all such activity, and shall immediately and without demand return to the Agency the Sales Tax Letter issued to the Company by the Agency which is in the Company’s possession or in the possession of any agent of the Company. Nothing herein shall be construed as a representation by the Agency that any property acquired as part of the Project is or shall be exempt from sales taxes or use taxes under the laws of the State.