Exhibit 10.40
AGREEMENT
THIS AGREEGMENT, dated as of 2/9/1996, by and between CHEMAID
LABORATORIES, INC. ("Chemaid"), a New Jersey corporation, having an
office located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx, and
HYDRON TECHNOLOGIES, INC. ("HyTech"), a New York corporation, having an
office located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000. Chemaid and HyTech shall hereinafter, at times, be referred to
together as the "Parties" or individually as a "Party" and this
agreement shall hereinafter be referred to as the "Agreement".
W I T N E S S E T H:
WHEREAS, on or about September 13, 1995, Chemaid entered into a
certain lease agreement, a copy of which is attached hereto and made a
part hereof (the "Lease"), between Chemaid as tenant, and MAYHILL STREET
REALTY CO., L.L.C., a New York limited liability company, as landlord
(the "Landlord"), for premises commonly known as the 5 East Building
located at 00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx, and as more
fully described in the Lease (the "Premises"); and
WHEREAS, HyTech has been using and occupying and desires to continue
to use and occupy a portion of the Premises as allocated by the Parties
pursuant to the terms and conditions set forth in this Agreement; and
WHEREAS, HyTech acknowledges that it has no right to use or occupy the
License Premises (as hereinafter defined) except as may be permitted
pursuant to the terms and conditions of this Agreement and has requested
that Chemaid grant it permission to use and occupy same for the five (5)
year period of the Lease ("License Period"); and
WHEREAS, Chemaid is willing to allow HyTech to use and occupy the
License Premises for the License Period on the terms, convenants and
conditions hereinafter set forth; and
WHEREAS, on or about the date hereof, the Parties are entering into a
Depository Agreement whereby HyTech and Chemaid shall establish a
Depository Account which shall hold the funds which are currently being
held in escrow by Cole, Schotz, Meisel, Xxxxxx and Xxxxxxx, P.A.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed and for other good and valuable consideration, the receipt and
sufficency of which are hereby acknowledged, the Parties agree as
follows:
Section 1 - Recitals. The recitals set forth hereinabove are
incorporated herein by reference as though fully set forth at length.
Section 2 - Allocation of Usable Warehouse Space.
(a) Upon the effective date of the Lease, each Party shall have the
right to occupy on an exclusive basis fifty (50%) percent of the Usable
Warehouse Space (as hereinafter defined) at the Premises. For purposes
of this Agreement, "Usable Warehouse Space" means the total square
footage of floor area and office space demised to the Parties under the
Lease less the square footage within the Premises consisting of
bathrooms and loading docks. Each Party has the non-exclusive rights to
use the bathrooms, loading docks and office space. On each semi-annual
anniversary date of the date of this Agreement, the Parties shall
mutually determine any adjustments to be made to the percentage of
Usable Warehouse Space of the Premises which each Party may occupy;
provided, however, that neither Party shall be allocated less than
thirty-five (35%) percent of the total Usable Warehouse Space. The
percentage of Useable Warehouse Space of the Premises which HyTech may
occupy, from time to time, pursuant to this Section shall be referred to
as the "License Premises."
(b) If Chemaid as tenant under the Lease sublets, grants a license
to, or otherwise permits a third party to use and occupy all or a portion
of the office space located on the Premises for compensation, the
payments received by Chemaid from said third party (less any costs
incurred by Chemaid relating to said third party) shall be allocated and
paid to the Parties hereunder in proportion to each Party's then
allocation of Usable Warehouse Space pursuant to the terms and
conditions of this Agreement.
Section 3 - License. Chemaid hereby grants to HyTech and HyTech
hereby accepts from Chemaid, a license ("License") to use and occupy the
License Premises for the License Period. Chemaid represents to HyTech
that the Lease permits (i) the License, and (ii) the use of the Premises
for the storage, warehousing and distribution of cosmetics and health
and beauty products.
Section 4 - Allocation and Payment of Expenses.
(a) All expenses and other obligations of Chemaid under the Lease,
including, but not limited to, Rent, Taxes, utilities and other expenses
(collectively, "Expenses"), shall be allocated between the Parties based
upon the percentage of Usable Warehouse Space which is allocated to each
Party for the period to which such expenses are attributable (the
"Expense Share"), as set forth under Section 2 of this Agreement. For
example, if a Party is allocated sixty (60%) percent of the Usable
Warehouse Space, its Expense Share shall be sixty (60%) percent of the
Expenses.
(b) HyTech shall remit its Expense Share attributable to the Premises
directly to Chemaid within five (5) business days after request therefor
from Chemaid. Failure by HyTech to so remit its Expense Share to
Chemaid within said time period shall be considered an "Event of
Default" under this Agreement.
(c) Notwithstanding the foregoing, Expenses shall not include any and
all fees, fines, assessments, charges, administrative charges,
penalties, interest or the like, which may be imposed or charged by the
Landlord of the Lease, which are not caused by a default under or breach
of this Agreement on the part of HyTech.
Section 5 - Term. This Agreement shall commence as of the date of the
Lease and shall terminate upon the expiration or earlier termination of
the Lease; provided, however, if on the date on which this Agreement
terminates, either Party shall have unperformed obligations hereunder,
then, in such event, the term of this Agreement shall continue only with
respect to such unpaid and/or unperformed obligations. Notwithstanding
anything to the contrary contained herein, Chemaid may terminate the
License if HyTech commits an Event of Default which remains uncured for
thirty (30) days after HyTech receive notice of such default. For
purposes of this Agreement, an Event of Default shall also include, but
not be limited to, any act or omission by HyTech which constitutes a
breach of or default in the Lease.
Section 6 - Indemnification.
(a) If HyTech shall be subject to any claim, demand or penalty with
respect to its obligations under this Agreement, HyTech shall indemnify
and hold harmless Chemaid against all losses, judgments, settlements,
fines, taxes, penalties, costs (including reasonable attorneys' fees) or
damages of any kind assessed against or incurred by Chemaid as a result
thereof.
(b) HyTech agrees to indemnify and hold harmless Chemaid, its
officers and directors and each controlling person of Chemaid, from and
against all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject, and to reimburse each
such persons so indemnified for any and all reasonable attorneys' fees
or other expenses (including the cost of any investigation and
preparation) reasonably incurred by them or any of them in connection
with any claim or litigation, whether or not resulting in any
liabilities, insofar as such losses, claims, damages, liabilities, or
litigation arise out of or are based upon any act or omission by HyTech
which constitutes a breach of or default under the Lease.
(c) Chemaid agrees to indemnify and hold harmless HyTech, its
officers and directors and each controlling person of HyTech, from
and against all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject, and to
reimburse each such persons so indemnified for any and all reasonable
attorneys' fees or other expenses (including the cost of any
investigation and preparation) reasonably incurred by them or any of
them in connection with any claim or litigation, whether or not
resulting in any liabilities, insofar as such losses, claims, damages,
liabilities, or litigation arise out of or are based upon any default in
the Lease by Chemaid continuing beyond any applicable notice and cure
period; provided, however, that HyTech has not committed any breach of,
or default in, this Agrement, or that any such default does not arise
out of any actions or omissions by HyTech, its officers and directors,
or any controlling person of HyTech.
Section 7 - Remedies. If HyTech shall default in its obligations
hereunder, Chemaid shall have all remedies available to it at law or
equity, including, without limitation, specific performance.
Section 8 - Further Instruments. HyTech agrees at any time or times
and from time to time, to make, execute and deliver any and all such
other instruments or documents and do any and all such acts and/or
things as Chemaid shall reasonably require for the purpose of giving
full force and effect to this Agreement.
Section 9 - Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Parties, their heirs, and successors in
interest of every kind and nature whatsoever.
Section 10 - Modifications. No term, provision or condition of this
Agreement may be modified unless in writing and signed by both Parties.
Section 11 - Complete Understanding. This Agreement together with the
Depository Agreement constitute the complete understanding amoung the
Parties with respect to subject matter contained herein and no
statement, representation, warranty or covenant has been made by any
Party with respect thereto, except as expressly set forth herein.
Section 12 - Governing Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New Jersey (without giving effect to conflicts of law). The Parties
hereby consent to the personal jurisidiction of the federal or state
courts located in the State of New Jersey as the exclusive forum to
resolve disputes hereunder.
Section 13 - Severability. In case any one (1) or more of the
provisions of this Agreement shall be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
thereby.
Section 14 - Notices. All notices, consents or other communications
required or permitted to be given by any Party hereunder shall be in
writing (including telecopy or other similar writing) and shall be given
by personal delivery, certified or registered mail, postage prepaid, or
telecopy (or other similar writing) as follows:
If to Chemaid:
Chemaid Laboratories, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxx Xxxxxx
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx, P.A.
Court Plaza North
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
If to HyTech:
Hydron Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx, President
With a copy to:
Xxxxxx X. Xxxxxxx Attorney at Law, P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
or such other address or addresses as either Party hereto shall have
designated by notice in writing to the other Party hereto. Any notice,
consent or other communication required or permitted to be given
hereunder shall have been deemed to be given on the date of mailing,
personal delivery or telecopy or other similar means (provided the
appropriate answer back is received) thereof and shall be conclusively
presumed to have been received on the second business day following the
date of mailing or, in the case of personal delivery or telecopy or
other similar means, the day of delivery thereof, except that a change
of address shall not be effective until actually received.
Section 15 - Definitions. Any capitalized term contained in this
Agreement whioch is not defined herein shall have the meaning given to
it under the Lease.
Section 16 - Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, each Party has caused this Agreement to be
executed the day and year first above written.
CHEMAID LABORATORIES, INC.
By: /s/ Xxx Xxxxxx
-------------------------
Xxx Xxxxxx, President
HYDRON TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx, President
