LEASE MODIFICATION AGREEMENT
Exhibit
10.19
THIS AGREEMENT made as of the 30th day of June, 2010, between SANWOOD REALTY CO. (“Landlord”),
with offices at 00 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000, and MISONIX, INC. (“Tenant”) with
offices at 0000-0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (the “Demised Premises”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant’s predecessor-in-interest have heretofore entered into a written
agreement of lease for premises commonly known as 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx (the
“Demised Premises”) dated as of June 30, 1992, as amended and extended by written mesne agreements
dated June 16, 1997 and January 13, 1998 (the “Lease”); and,
WHEREAS, according to its terms, the expiration date of the Lease is June 30, 2010; and,
WHEREAS, Landlord and Tenant mutually desire to extend the term of the Lease for a period of
five (5) years commencing July 1, 2010 and terminating June 30, 2015; and,
WHEREAS, Tenant desires to surrender a portion of the Demised Premises; and,
WHEREAS, the parties desire to amend the Lease in certain other respects hereinafter set
forth;
NOW, THEREFORE, in consideration of Ten Dollars and other good and valuable
consideration, the sufficiency and receipt of which is hereby mutually
acknowledged, and the terms and conditions contained herein, it is agreed as follows:
1. Extension Term. The demised term is hereby extended for a period of five (5)
years commencing July 1, 2010 and terminating June 30, 2015, or terminating on such prior date as
may be permitted by the Landlord under the terms of the Lease (the “Extension Term”).
2. Partial Surrender; etc. Tenant currently occupies the entire building known as
0000-0000 Xxx Xxxxxxx, Xxxxxxxxxxx Xxx Xxxx (the “Building”). Not later than August 31, 2010 (the
“Surrender Date”), Tenant shall surrender to Landlord all of Tenant’s right, title and interest in
that portion of the Building known as 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx, which the parties
agree consist of 11,079 rentable square feet known as 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx (the
“Surrender Premises”) as shown on Exhibit A annexed hereto and made a part hereof. Tenant shall
vacate and remove all of its personal property and trade fixtures from the Surrender Premises not
later than the Surrender Date, and deliver such premises to Landlord vacant, in broom clean
condition, with all systems in good working order and otherwise as required by the terms of the
Lease.
3. Area; Pro Rata Share. Upon the later of Tenant’s vacatur or the Surrender
Premises or July 1, 2010, the parties agree that Tenant’s Pro Rata Share shall mean seventy-six
percent (76%) and the Demised Premises shall consist of 34,421 rentable square feet commonly known
as 0000-0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000.
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4. Fixed Annual Rent. The fixed annual rent during the Extension Term shall be
payable without deduction or set-off of any nature or amount, in advance on the
first calendar day of each month in equal monthly installments, without demand, at the office
of Landlord, and otherwise as set forth in the Lease, and as follows:
(A) for the period July 1, 2010 through and including the Surrender Date, Tenant shall pay
fixed annual rent and additional rent as the same were due and payable for the month of June 30,
2010;
(B) for the from the Surrender Date through and including June 30, 2011, $263,320.65 per
annum;
(C) for the period July 1, 2011 through and including June 30, 2012, $271,220.27 per annum;
(D) for the period July 1, 2012 through and including June 30, 2013, $279,356.88 per annum;
(E) for the period July 1, 2013 through and including June 30, 2014, $287,369.71 per annum;
and,
(F) for the period July 1, 2014 through and including June 30, 2015, $296,786.67 per annum.
5. Option to Renew.
(A) Tenant shall have the privilege of an option to renew this lease in accordance with
the terms of this paragraph 3, provided that the Tenant (i) is not in default under any of the
terms, covenants or conditions of this lease at any time prior to the Option Period, and (ii) has
not, more than five times in the prior five years, been in arrears in payment of fixed annual rent
or additional rent for more than ten (10) days.
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(B) It is specifically understood and acknowledged
that this option to renew is
not self-executing, is subject to the provisions of sub-paragraph (A) of this paragraph 3, and
is a privilege granted to the Tenant by the Landlord and is to be of no force or effect unless the
Tenant shall take the following affirmative steps to exercise the option: At any time, but by
written notice to Landlord postmarked not later than February 1, 2015, TIME BEING EXPRESSLY
UNDERSTOOD AND AGREED TO BE OF THE ESSENCE, the Tenant shall notify the Landlord of its
intention to exercise the option (the “Option Notice”) as indicated herein. The Option Notice by
Tenant to Landlord shall be mailed — and not personally delivered — by registered or certified
mail, return receipt requested, with postage pre-paid to Landlord at the address set forth in this
Lease (or such other address as may be designated by Landlord in writing). The Option Notice may
be given only by Tenant and not by its agent, attorney or otherwise. If Tenant shall not exercise
its option strictly in accordance with the provisions of this paragraph 3(B), then this lease shall
terminate on the date provided hereinbefore.
(C) The privilege of renewal shall be personal as to the Tenant named herein and may not be
exercised, sold, given, assigned or enjoyed by any approved assignees, subtenant or any other
person.
(D) Tenant’s option to renew this lease shall be for one (1) additional term of five
(5) years, from July 1, 2015 through and including June 30, 2020 (the “Option Period”). Such
renewal shall be upon all the same terms and conditions as set forth in this lease except that (i)
there shall be no further option to renew, and (ii) Tenant’s fixed annual rent shall be the fair
market value for the Demised Premises, which shall be the fair market value for similar premises
similarly situated.
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(E) If the parties are unable to agree on the fair market value for the Demised Premises,
then such dispute shall be determined by binding arbitration before three arbitrators in western
Suffolk County, the administrative costs of such arbitration to be shared equally by the Landlord
and Tenant, but each party shall be solely responsible for its owns costs, expenses and fees
(including, without limitation, those of its counsel, witnesses and experts). No award shall, and
the arbitrators shall not have the power to, reduce the fixed annual rent below the amount payable
in the previous lease year; additionally, the fixed rent in the second through fifth years of the
Option Period shall be increased by 3% per annum compounded (for example, if the fixed rent in the
first year of the Option Period shall be $100.00 per annum, then the fixed rent in the second year
of the Option Period shall be $103.00 per annum, the fixed rent in the third year of the Option
Period shall be $106.09 per annum, etc.) Any award in arbitration may be entered in any court of
competent jurisdiction. Pending the determination of the fair market value, Tenant shall pay to
Landlord the fixed annual rent payable in the preceding lease year, and upon such determination
shall, within five days, pay to Landlord the difference between the amount of fixed annual rent
theretofore paid during the Option Period and the amount of fixed annual rent determined to be due
in such arbitration.
6. INTENTIONALLY OMITTED.
7. Liens. Tenant shall promptly pay when due any charge (whether or not such charge
is valid or enforceable as such) for waste removal to the Town of Babylon (or any of its political
subdivisions, agents, employees or contractors). Upon Tenant’s failure to make such timely
payment, Landlord shall have the right, but not the obligation, to
make such payment directly to the party entitled to such payment, and all moneys paid by
Landlord Shall be deemed additional rent due and payable within five (5) days after written demand
by Landlord.
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8. Broker. The parties mutually acknowledge and agree that no broker brought about,
negotiated or procured this agreement.
9. Merger. This constitutes the entire agreement between the parties and each
party acknowledges that no agreements, representations or understandings exist or existed with
respect to this agreement except as are expressly set forth herein. This agreement may not be
changed orally, but only in writing signed by the party against which such change may be sought to
be enforced. Except as modified herein, the Lease shall remain in full force and effect.
10. Inconsistencies. Any inconsistency between this agreement and the Lease shall be
resolved in favor of this agreement.
11. No Waiver. By Landlord entering into this agreement, Tenant agrees that Landlord
shall not be deemed to have waived any prior or existing breach on Tenant’s part, whether or not
Landlord shall have actual or constructive knowledge of the same.
12. Binding Effect. This agreement shall be binding upon, and inure to the benefit
of, the parties and their respective successors, permitted assigns, and legal representatives.
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IN WITNESS WHEREOF, the parties have set their hands and seals as of the date first
above-written.
| SANWOOD REALTY CO. By: Xxxx Realty Family L.P. By: Inpro Properties Corp. |
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| By: | /s/ Xxxx Xxxx | |||
| President | ||||
| MISONIX, INC. |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | SR VP & CFO | |||
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