AGREEMENT OF LEASE
Agreement of Lease, made as of the 22nd day of September,
1998, between L & P FEED, INC., a New York corporation with its office at 00
Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as Landlord,
and NORTHEAST ONE STOP, INC., a New York corporation with its office at 0
Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, hereinafter referred to as Tenant.
W I T N E S S E T H :
1. DEMISED PREMISES:
1.01. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord, the premises (hereinafter referred to as the Demised
Premises) consisting of a commercial building, containing approximately 46,450
square feet, (the Building) and parking lot suitably identified on Exhibit I,
annexed hereto and by this reference made a part hereof and commonly known as 0
Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxx (the "Parcel"), together with any and all
rights, privileges, easements and appurtenances belonging thereto.
2. TERM:
2.01. The term of this Lease shall be for five (5)
years, commencing on the 1st day of October, 1998 (the Commencement Date) and
terminating on the 30th day of September, 2003.
3. RENT:
3.01. Tenant agrees to pay Landlord, during the term
aforesaid, an annual rental as hereinafter provided:
A. For the first year of the term the sum of One
Hundred Forty-Four Thousand and 00/100ths Dollars ($144,000.00), payable in
equal, monthly installments of Twelve Thousand and 00/100ths Dollars
($12,000.00) each on the first day of each month of said term, in advance;
B. For the second through the fifth year of the term
the sum of One Hundred Eighty Thousand and 00/100ths Dollars ($180,000.00),
payable in equal, monthly installments of Fifteen
Thousand and 00/100ths Dollars ($15,000.00) each on the first day of each month
of said term, in advance.
4. USE OF PREMISES:
4.01. Tenant may use and occupy the Demised Premises
and the Building thereon for the purposes of offices, sales, distribution and
warehousing, and for no other purpose or purposes.
4.02. Tenant will not, nor will it permit, any other
persons to do anything or, bring anything in or upon the Demised Premises or to
be kept therein, which will in any way increase the rate of fire insurance on
the Demised Premises, nor use or permit the Demised Premises to be used for any
purpose which would cause an increase in the rate of fire insurance on the
Demised Premises.
5. TAXES:
5.01. In addition to the annual rental provided for
in Article "3" hereof, Tenant agrees to pay to Landlord as additional rent all
property taxes, water and sewer rents, rates and charges, and assessments, which
may be levied or assessed against the Demised Premises by any lawful authority
for the period of the term of this Lease. Landlord agrees that Tenant shall have
the right to contest the amount of or legality of any taxes which it is
obligated to pay, and the right to make application for the reduction thereof or
of any assessment upon which the same may be based, but this shall not be deemed
or construed in any way as releasing or discharging Tenant's covenant to pay
such taxes. Landlord shall, at the request of Tenant, join in any such
proceedings or application. If any refund or reduction is made to Landlord, such
refund or reduction shall be credited against the payments of additional rent
due thereafter. Should the State of New York or any political subdivision
thereof or any governmental authority having jurisdiction thereover, impose a
tax and/or assessment (other than a net income or franchise tax) upon or against
the rental payable by Tenant to Landlord, or any other tax which is intended in
whole or in part as a substitute for the
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current method of real estate taxation, such tax and/or assessment shall be
deemed to constitute a tax and/or assessment against the Demised Premises for
the purpose of this Article.
5.02. Upon receipt of all tax bills and assessment
bills attributable to any calendar year during the term hereof, Landlord shall
furnish Tenant with a written statement of the amount due from Tenant's for
taxes and assessments of such year. Tenant shall pay to Landlord said amount
within ten (10) days from the receipt of said statement. Tenant shall be
responsible for payment of taxes hereunder from the Commencement Date of this
Lease. In the event Landlord is required under a mortgage covering the Demised
Premises to escrow real estate taxes, Landlord may require Tenant to pay the
aforesaid taxes and assessments during the term hereof in monthly installments
on or before the first day of each calendar month, in advance, in an amount
estimated by said mortgagee. If the total amount paid by Tenant under this
Article during the term of this Lease shall be less than the actual amount due
from Tenant for any calendar year thereof, as shown on such statement, Tenant
shall pay to Landlord the deficiency within ten (10) days after demand therefor
by Landlord; and if the total amount paid by Tenant hereunder for any such
calendar year shall exceed such amount due from Tenant for such calendar year,
Tenant shall be entitled to offset the excess against payments next thereafter
become due under this Article 5. For the calendar years in which this Lease
commences and terminates, the provisions of this Article shall apply and
Tenant's liability for the taxes and assessments for any such year shall be
subject to a pro rata adjustment based on the number of days of any such year
during which term of this Lease is in effect. A copy of a tax xxxx or assessment
xxxx submitted by Landlord to Tenant shall at all times be sufficient evidence
of the amount of taxes and/or assessments levied or assessed against the
property to which such xxxx relates. Prior to or at the commencement of the term
of this Lease and from time to time
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thereafter throughout the term hereof, Landlord shall notify Tenant in writing
of Landlord's estimate of Tenant's monthly installments due hereunder.
Landlord's and Tenant's obligations under this Article shall survive the
expiration of the term of this Lease.
5.03. Nothing herein contained is intended to make the
Tenant responsible for franchise, corporate or partnership taxes which are
charged to the Landlord, including excise, inheritance, capital levy, transfer
or income, profits or revenue, upon income of Landlord, except that, in the
event of the passage of any statute, act or law as the result of which Landlord
becomes obligated to pay any income tax or any other tax, charge, levy,
assessment or imposition, in lieu or place of any general tax, school tax, or
other real estate tax or assessment, which would otherwise be levied against
and/or become a lien upon the Demised Premises, such tax, charge, levy,
assessment or imposition shall be payable by Tenant as provided for by this
Article "5".
6. INSURANCE:
6.01. Tenant agrees to carry comprehensive commercial
general liability insurance on an occurrence basis on the Demised Premises
during the term hereof, covering Tenant and covering Landlord as an additional
insured with terms and companies reasonably satisfactory to Landlord, but in any
event including coverage for Tenant's indemnity to Landlord contained in Article
"19" of this Lease, for limits of not less than Three Million ($3,000,000.00)
Dollars for bodily injury and property damage arising out of any one occurrence
and providing that Landlord and Tenant shall be given a minimum of thirty (30)
days written notice by the insurance company prior to cancellation, termination
or change in such insurance. Tenant shall provide Landlord with copies of the
policies or certificates evidencing that all insurance coverage provided for
herein is in full force and effect and stating the terms thereof. Tenant's
insurance carrier shall be licensed to do business in the State of New York and
shall have a
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policyholder's rating of not less than A+V in the most recent edition of Best's
Insurance Reports.
6.02. Landlord shall carry during the term hereof
insurance for fire, extended coverage, vandalism, malicious mischief, and such
other hazards Landlord or Landlord's first mortgagee may require, insuring
improvements located on the Demised Premises and all appurtenances thereto
(excluding Tenant's merchandise, trade fixtures, furnishings, equipment,
personal property and Tenant's work) for not less than the full insurable value
thereof. Tenant agrees to reimburse Landlord, as additional rent herein, the
cost of the premiums for such insurance within twenty (20) days from the receipt
from Landlord of a written statement for such amount which shall be accompanied
by a copy of the xxxx of the insurance carrier for same. Tenant shall be
responsible for payment of insurance premiums from the Commencement Date of this
Lease.
6.03. Tenant shall be responsible for the maintenance
of the plate glass and doors in or on the Demised Premises but shall have the
option either to insure the risk or to self insure.
7.01. ALTERATIONS:
7.01. Tenant may not make any installations,
alterations or additions in or to the Demised Premises without the consent of
Landlord, which consent will not be unreasonably withheld or delayed.
7.02 Tenant is leasing the Demised Premises in an "as
is" condition.
8. REPAIRS AND MAINTENANCE:
8.01. The Tenant shall take good care of the Demised
Premises, maintain same including landscaping, grass cutting, ice and snow
removal and shall, at Tenant's own cost and expense, make all repairs, except
repairs to the roof, foundation, exterior walls and other structural elements
which shall be Landlord's responsibility, unless said structural repairs are
required as a result of the negligence of the Tenant, its agents, servants
and/or
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employees, and at the end or other expiration of the term, shall deliver up the
Demised Premises in good order and condition, damage by the elements and
ordinary wear and tear excepted.
9. DESTRUCTION BY FIRE OR OTHER CASUALTY:
9.01. In the event the Demised Premises are hereafter
damaged or destroyed or rendered partially untenantable for their accustomed
uses by fire or other casualty insured or required to be insured under the
coverage which Landlord is obligated to carry pursuant to Article "6" hereof,
then Landlord shall promptly repair said premises and restore the same to
substantially the condition in which they were immediately prior to the
happening of such casualty, and from the date of such casualty until the Demised
Premises are so repaired and restored, annual rental payments, except for taxes
or charges due under Article "5" and "6" hereof, shall xxxxx in such proportion
as the part of the Demised Premises thus destroyed or rendered untenantable
bears to the total Demised Premises. In the event, however, that either Landlord
or Tenant reasonably determines that such damage cannot be repaired and/or the
Demised Premises made tenantable within ninety (90) days from the date of the
occurrence thereof, either Landlord or Tenant may cancel this Lease within
thirty (30) days after the date of such damages, by giving written notice as
provided in the next Article "26" of this Lease.
10. SIGNS:
10.01. Landlord grants to Tenant the right to install a
sign upon the Demised Premises of whatever size permitted by the zoning laws of
the Town of Colonie, New York. Tenant shall neither place, nor cause, or allow
to be placed any other sign or signs upon the Demised Premises without the
approval of Landlord, which approval will not be unreasonably withheld, and the
approval, if necessary, of municipal authorities. In the case that Landlord
shall deem it necessary to remove any such sign or signs in order to make any
repairs or alterations or improvements in or upon the
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Demised Premises or building or any part thereof, the Landlord shall have the
right to do so, providing the same be removed and replaced at the Landlord's
expense, whenever the said repairs, alterations or improvements shall be
completed. Notwithstanding the foregoing, Tenant shall have the right during the
term of this Lease and any renewal term, at its own cost and expense, to place
on or more descriptive signs advertising Tenant's business on any of the
exterior windows of the Building if permitted by local laws.
11. UTILITIES:
11.01. Tenant shall be responsible for payment of all
utilities servicing the Demised Premises, including but not limited to electric,
gas, sewer, and water.
12. ASSIGNMENT OF LEASE:
12.01. Tenant may not sublet or assign this Lease
without the Landlord's consent, which consent will not be unreasonably withheld
or delayed after Tenant notifies Landlord of its intention to assign or sublet.
If within twenty (20) days after Tenant's notice, Landlord shall have failed to
either approve or disapprove (and in the case of disapproval, set forth the
reasons therefore) Tenant's proposed assignment or subletting, such assignment
or subletting shall be deemed to have been approved. It is further agreed that
no assignment or sublease shall be effective unless the assignee or sublessee
agrees directly with the Landlord to perform Tenant's obligations under this
Lease. Notwithstanding any permitted assignment or subletting, no further
assignment or subletting may be made without Landlord's consent and, in all
events, Tenant shall remain fully and primarily liable for the payment of all
rent, additional rent and the performance of all the terms, covenants and
conditions contained herein jointly and severally with such assignee or
sublessee. Landlord's dealing with an assignee or sublessee shall not affect the
continued liability of the Tenant under this Lease. Notwithstanding the
foregoing, this Lease may be assigned, or the Demised Premises may be sublet,
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in whole or in part, without Landlord's prior consent, (a) to any corporation
into or with which Tenant may be merged or consolidated, or (b) to any
corporation which shall be an affiliate, subsidiary, parent or successor of
Tenant, or of a corporation into or with which Tenant may be merged or
consolidated.
13. COMPLIANCE WITH LAWS:
13.01. Except as otherwise provided herein, Tenant shall
comply with all laws, orders and regulations of federal, state, county and
municipal authorities, and with any direction pursuant to law of any public
officer thereof, which shall impose any violation, order or duty upon Landlord
or Tenant resulting from the use and occupancy of the Demised Premises by
Tenant. Tenant shall have the right, upon giving notice to Landlord, to contest
any obligations imposed upon Tenant pursuant to the provisions of this Article,
and to defer compliance during the pendency of such contest, provided that the
failure of Tenant to so comply will not subject Landlord to prosecution or
criminal penalty. Landlord shall comply with any such laws, orders, regulations,
directions and rules in respect to the Demised Premises, other than those
imposing an obligation upon Tenant as aforesaid, subject, however, to the right
of Landlord similarly to contest as aforesaid and defer compliance during the
pendency of such contest.
14. SUBORDINATION:
14.01. This instrument shall not be a lien against said
Demised Premises with respect to any first mortgage that is now on or that
hereafter may be placed against said Demised Premises, and upon the recording of
such mortgage or mortgages, the same shall have preference and precedence and be
superior and prior in lien to this Lease, irrespective of the date or recording
of the same and the Tenant agrees to execute any such instrument, without cost,
which may be deemed necessary or desirable to further effect the subordination
of this Lease to any such mortgage, and a refusal
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to execute such instrument shall entitle the Landlord, or the Landlord's assigns
and legal representatives to the option of cancelling this Lease without
incurring any expense or damage and the term hereby granted is expressly limited
accordingly, provided, however, that a non-disturbance agreement shall have
first been entered into in respect to such mortgage that is now on or that
hereinafter may be placed against the Demised Premises. The term
"non-disturbance agreement" as used in this Article shall mean an agreement in
recordable form between the Tenant and the holder of any mortgage lien, which
shall provide, in substance, that the Tenant shall attorn to any such mortgagee
and that as long as Tenant is not in default under this Lease beyond any period
given to Tenant to cure such default, such holder will not name or join Tenant
as a party defendant or otherwise in any suit, action or proceeding to enforce,
nor will this Lease be terminated or otherwise affected by enforcement of, any
rights given to such holder pursuant to the terms, covenants or conditions
contained in such mortgage or mortgages, or any other documents held by such
holder or any rights given to such holder as a matter of law. Tenant agrees to
make minor, reasonable changes to this Lease as may be required by any such
mortgagee, provided such mortgagee is a recognized lending institution and the
said changes do not modify the substance of this agreement.
15. WAIVER OF REDEMPTION:
15.01. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being dispossessed or removed from the Demised Premises because of
default by Tenant pursuant to the covenants or agreements contained in this
Lease.
16. DEFAULT:
16.01. (a) It is expressly understood and agreed that
in case the Demised Premises shall be deserted or vacated, or if default be made
in the payment of the rent or additional rent or
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any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this Lease or if default be
made in the performance of any of the covenants and agreements in this Lease
contained on the part of the Tenant to be kept and performed, or if the Tenant
shall fail to comply with any of the statutes, ordinances, rules, orders,
regulations and requirements of the Federal, State and local governments or of
any and all their departments or bureaus, applicable to the Demised Premises, or
if the Tenant shall file or there shall be filed against Tenant a petition in
bankruptcy or arrangement, or under any insolvency laws now or hereinafter
enacted, or Tenant be adjudicated a bankrupt or make an assignment for the
benefit of the creditors to take advantage of any insolvency act, the Landlord
may, if the Landlord so elects, and may at any time thereafter terminate this
Lease and the term hereof, on giving to the Tenant thirty (30) days notice in
writing to cure such default, or if such default cannot be cured within thirty
(30) days, Tenant does not commence to cure such default within thirty (30) days
and diligently pursues the same to completion thereafter, except in the case of
non-payment of rent said notice shall require a cure within ten (10) days and
for non-payment of additional rent, said notice shall require a cure within
twenty (20) days, and if such default is not so cured, this Lease and the term
hereof shall expire and come to an end on the date fixed in such notice as if
the said date were the date originally fixed in this Lease for the expiration
hereof, and Landlord may re-enter the Demised Premises and dispossess or remove
Tenant or any other occupant of the Demised Premises by summary proceedings or
otherwise, and remove their effects and hold the Demised Premises as if this
Lease had not been made, but without prejudice to Landlord's remedies, on
account thereof as set forth in paragraph (b) below. Tenant acknowledges that
Tenant has read and is fully familiar with this Article "17" of the Lease and
that in the event of any default with respect to
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payment of rent or additional rent by Tenant after notice is given as required
herein, Landlord may forthwith enter, take possession and operate the Demised
Premises.
(b) In the event of such dispossession, termination
or removal and notwithstanding such action or the termination of this Lease, (i)
the Tenant shall be liable forthwith to pay the rent and additional rent payable
under this Lease up to the date of such dispossession, removal or termination,
(ii) Landlord may re-let the Demised Premises, or any part or parts thereof,
either in the name of Landlord or otherwise, for a term or terms which may, at
the option of Landlord, be less than or exceed the period which would otherwise
have constituted the balance of the term of this Lease and may grant concessions
or free rent for a reasonable time; (iii) Tenant shall pay to Landlord as
liquidated damages for the failure of Tenant to observe and perform the
covenants and agreements of Tenant under this Lease, any deficiency between the
rent and additional rent payable by Tenant under this Lease and the net amount,
if any, of the rents collected on account of the Lease or Leases of the Demised
Premises for each month of the period which would otherwise have constituted the
balance of the term of this Lease, (iv) amounts received by Landlord after
reletting shall first be applied against Landlord's expenses incurred in any
reletting, until the same are recovered, and until such recovery, Tenant shall
pay, as of each day when a payment would fall due under this Lease, the amount
which Tenant is obligated to pay under the terms of this Lease (Tenant's
liability prior to any such reletting and such recovery not in any way to be
diminished as a result of the fact that such reletting might be for a rent
higher than the rent provided for in this Lease); when and if such expenses have
been completely recovered, the amounts received from reletting by Landlord as
have not previously been applied shall be credited against Tenant's obligations
as of each day when a payment would fall due under this Lease, and only the net
amount thereof
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shall be payable by Tenant; further, amounts received by Landlord from such
reletting for any period shall be credited only against obligations of Tenant
allocable to such period, and shall not be credited against obligations of
Tenant hereunder accruing subsequent or prior to such period; nor shall any
credit of any kind be due for any period after the date when the term of this
Lease is scheduled to expire according to its terms. Landlord may make such
reasonable alterations, repairs, replacements and decorations in the Demised
Premises as Landlord considers advisable and necessary for the purpose of
reletting the Demised Premises, and the making of such alterations and
decorations shall not operate or be construed to release Tenant from liability
under this Lease. The failure or refusal of Landlord to re-let the Demised
Premises or any part thereof shall not release or affect the liability of Tenant
for damages under this Lease, however Landlord shall use reasonable effort to
re-let the Demised Premises. Landlord shall in no event be liable in any way
whatsoever for inability to re-let the Demised Premises or, in the event that
the Demised Premises are re-let, for inability to collect the rent under such
reletting.
(c) After default of payment of rent, or violation of
any other provision of this Lease, or expiration thereof, the Tenant moves out
or is dispossessed and fails to remove any trade fixture or other property prior
to such said default, removal, expiration of Lease, or prior to the issuance of
the final order or execution of the warrant, then in that event, the said
fixtures and properties shall be deemed abandoned by the said Tenant and shall
become the property of the Landlord.
17. CURING DEFAULT:
17.01. If Tenant shall default in the observance or
performance of any covenant or agreement of this Lease on the part of Tenant to
be observed or performed, beyond any period given to Tenant to cure such
default, and after reasonable notice and
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demand, Landlord may perform the same for the account of Tenant, and if Landlord
makes any reasonable expenditures or incurs any obligation for the payment of
money in connection therewith, including, but not limited to, reasonable
attorneys' fees in instituting, prosecuting or defending any action or
proceeding, including bankruptcy proceedings involving Tenant as a debtor, such
expenditures paid, or obligations incurred, with interest and costs, shall be
deemed to be additional rent and shall be paid by Tenant to Landlord within ten
(10) days of rendition to Tenant of any xxxx or statement therefor.
18. EMINENT DOMAIN:
18.01. If the whole of the Demised Premises shall be
acquired or condemned by Eminent Domain for any public or quasi-public use or
purpose, then in that event, the term of this Lease shall cease and terminate
from the date of title vesting in such proceeding.
18.02. In the event of a Taking of less than the whole
of the Demised Premises, this Lease shall cease and expire with respect to the
portion of the Demised Premises taken, upon vesting of title as a result of the
Taking, and if in the reasonable opinion of Tenant, such taking renders the
Demised Premises not suitable for the use for which it was being utilized
immediately prior thereto, Tenant may elect to terminate this Lease by giving
notice to Landlord to such election not more than forty-five (45) days after
receipt by Tenant of notice of the Taking, stating the date of termination,
which date of termination shall be not more than thirty (30) days after the date
on which such notice to Landlord is given, and upon the date specified in such
notice to Landlord, this Lease and the term hereof shall cease and expire. If
Tenant does not elect to terminate this Lease as aforesaid (i) the annual rent
payable under this Lease shall be reduced to an amount to be determined by
multiplying the annual rent by a fraction, the numerator of which is the area of
the Demised
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Premises remaining after the Taking, and the denominator of which is the total
area of the Demised Premises immediately preceding the Taking, and (ii) after
the determination of Landlord's award on account of the Taking, Landlord shall
expend as much of the award as necessary to restore the portion of the
improvements remaining after the Taking, to a complete architectural unit
substantially the same as to the condition and tenantability prior to the taking
for the use and occupancy of the Tenant. Should the net amount so awarded to
Landlord be insufficient to cover the cost of restoring the Demised Premises, in
the reasonable estimate of Landlord, Landlord may, but shall have no obligation
to, supply the amount of such insufficiency and restore the Demised Premises to
such an architectural unit, with all reasonable diligence, or Landlord may
terminate this Lease by giving notice to Tenant not later than a reasonable time
after Landlord has determined the estimated net amount which may be awarded to
Landlord and the estimated cost of such restoration.
18.03. In the event of a Taking of the Demised Premises
or any part thereof, Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Demised Premises, the Building in which the same are located, and the
leasehold interest hereby created, and to compensation accrued or hereafter to
accrue by reason of such Taking, as aforesaid, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with Landlord to
grant and assign, to Landlord all rights to such damages or compensation.
Nothing contained herein shall be construed to prevent Tenant from prosecuting
in any condemnation proceedings any claims permitted by law to recover for
relocation expenses, loss of business, or depreciation to, or cost of removable
trade fixtures, furniture and other personal property belonging to Tenant, or
any alterations which are of the nature that would remain the property of
Tenant, provided that such action
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shall not affect the amount of compensation otherwise recoverable by Landlord
from the Taking Authority.
19. INDEMNIFICATIONS:
19.01. Tenant does hereby covenant and agree with said
Landlord that it will indemnify and save harmless Landlord from and against any
and all liability, damage, penalties or judgments arising from injury to person
or property sustained by anyone in and about the Demised Premises resulting from
any act or acts of omission or commission of Tenant, or Tenant's officers,
agents, servants, employees, contractors, or assignees. Tenant shall, at its own
cost and expense, defend any and all suits or actions (just or unjust) which may
be brought against Landlord or in which Landlord may be impleaded with others
upon any such above-mentioned matter, claim or claims, except as may result from
any act or acts of omission or commission of Landlord, or Landlord's officers,
agents, servants, employees, assignees or contractors.
20. END OF TERM:
20.01. Upon expiration or other termination of the term
of this Lease, Tenant shall quit and surrender to Landlord the Demised Premises,
broom clean, in good order and condition, reasonable wear and tear and damage by
fire or other casualty excepted.
21. QUIET ENJOYMENT:
21.01. Landlord covenants and agrees that Tenant may
peaceably and quietly enjoy the Demised Premises, subject, however, to the
covenants and agreements contained in this Lease.
22. NO WAIVER:
22.01. The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
agreement contained in this Lease shall not prevent a similar subsequent act
from constituting a default under this Lease. This Lease contains the entire
agreement between the parties, and cannot be changed, modified, or amended
unless such
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change, modification or amendment is in writing and signed by the party against
whom enforcement of such change, modification or amendment is sought.
22.02. No payment by Tenant, or acceptance by Landlord,
of a lesser amount than shall be due from Tenant to Landlord shall be treated
otherwise than as a payment on account. The acceptance by Landlord of a check
for a lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall be
given no effect, and Landlord may accept such check without prejudice to any
other rights or remedies which Landlord may have against Tenant.
23. WAIVER OF TRIAL BY JURY AND COUNTERCLAIMS:
23.01. Landlord and Tenant agree that they shall, and
they hereby do, waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of, or in any way connected with, this Lease. If Landlord
commences any summary proceeding for non-payment of rent or additional rent,
Tenant will not interpose any counterclaim in such proceeding unless such
counterclaim arises out of, or is in any way connected with this Lease.
24. MEMORANDUM OF LEASE:
24.01. Upon request of either party to this Lease,
Landlord and Tenant agree to execute and deliver a memorandum of this Lease and
a memorandum of any modification of this Lease, in recordable form, containing
the information required by Section 291-c and 291-cc of the Real Property Law of
the State of New York.
25. INSPECTION OF PREMISES:
25.01. The Tenant agrees that the Landlord and its
agents and/or representatives shall have the right to enter into and upon
Demised Premises, or any part thereof, at all reasonable hours and upon
reasonable notice (except in the case of an emergency) for
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the purpose of examining the same, or making such repairs or alterations therein
as may be necessary for the safety and preservation thereof, provided that such
entry shall not unreasonably inconvenience Tenant in its operation and use of
the Demised Premises.
25.02 The Tenant also agrees to permit during the last
six (6) months of the term of this Lease at all reasonable times and upon
reasonable notice, the Landlord or the Landlord's agents to show the Demised
Premises to persons wishing to lease the same, provided that such entry shall
not unreasonably inconvenience Tenant and its operation and use of the Demised
Premises.
26. NOTICES:
26.01. Any notice or demand required to be given under
this Lease, or pursuant to any law or governmental regulations, by Landlord to
Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required
by law or governmental regulations, any such notice or demand shall be deemed
given if sent by registered or certified mail, enclosed in a secure postage
prepaid wrapper, addressed (i) to Landlord, at the address of Landlord first
hereinabove set forth, or such other address as Landlord may designate by notice
to Tenant, or (ii) to Tenant, at the address of Tenant first hereinabove set
forth or such other address as Tenant may designate by notice to Landlord.
26.02. After receiving notice from any person, firm or
other entity that it holds a mortgage which includes the Demised Premises as
part of the mortgaged premises, no notice from Tenant to Landlord shall be
effective unless and until a copy of the same is given to such holder, and the
curing of any of Landlord's default by such holder shall be treated as
performance by Landlord.
27. CAPTIONS:
27.01. The captions preceding the Articles of this Lease
are inserted only as a matter of convenience and for reference
17
and in no way define, limit or describe the scope of this Lease nor the intent
of any provision of this Lease.
28. SUCCESSOR AND ASSIGNS:
28.01. The covenants and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and the heirs, personal
representatives, successors and assigns of Landlord, and Tenant and its
successors and assigns.
29. MISCELLANEOUS:
29.01. The covenants of the Landlord contained in this
Lease shall be binding upon Landlord and Landlord's successors in title only
with respect to breaches occurring during the Landlord's and Landlord's
successors in title only with respect to breaches occurring during Landlord's
and Landlord's successors' respective ownership of Landlord's interest in the
Demised Premises, and the Tenant specifically agrees to look solely to
Landlord's equity interest in the property of which the Demised Premises are a
part for the recovery of any judgment against Landlord. There shall be
absolutely no personal liability of persons, partnerships, firms, corporations
or other entities who at any time constitute the Landlord with respect to any of
the terms, covenants, conditions and provisions of this Lease.
29.02. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
29.03. This Lease and the obligation of Tenant to pay
rent hereunder and perform all of the other covenants and agreements hereunder
on part of Tenant to be performed shall in no way be affected, impaired or
excused because Landlord is unable to perform any of the obligations of Landlord
in this Lease where the inability to so perform
18
is due to causes beyond Landlord's reasonable control.
29.04. Landlord and Tenant understand, agree, and
acknowledge that:
(a) This Lease has been freely negotiated by both
parties; and
(b) That, in any controversy, dispute, or contest
over the meaning, interpretation, validity, or enforceability of this Lease or
any of its terms or conditions, there shall be no inference, presumption, or
conclusion drawn whatsoever against either party by virtue of that party having
drafted this Lease or any portion thereof.
29.05 Tenant will not suffer or permit, during the term
herein granted, or any extensions thereof, any mechanic's or other liens for
work, labor, services or materials to attach to the Demised Premises or to any
portion thereof; and that whenever and as often, if ever, as any such lien or
liens shall be filed, or shall attach, Tenant will, within sixty (60) days
thereafter, either pay the same or procure the cancellation thereof by giving
security, or in such a manner as is or may be prescribed by law.
30. EXTENDED TERM:
30.01. Tenant shall have the right, provided this Lease
has not been terminated pursuant to any of the provisions contained herein, to
elect to extend the term of this Lease for an additional five (5) year term;
such extended term to be upon the same terms, covenants and agreements as in
this Lease provided, with the exception that the annual rent shall increase to
Two Hundred Ten Thousand and 00/100ths ($210,000.00) Dollars per annum, payable
in equal monthly installments of Seventeen Thousand Five Hundred and 00/100ths
($17,500.00) Dollars on the first day of each and every month of said extended
term, in advance. If Tenant so elects to extend the term of this Lease, Tenant
shall give notice thereof to Landlord, at least One (1) year prior to the
expiration date of the original term thereof.
19
31. OPTION TO PURCHASE:
31.01. Landlord hereby grants to Tenant an option to
purchase the Demised Premises, at any time during the original five year Lease
term for the fair market value thereof, less ten (10) percent. Tenant may
exercise said option by written notice to Landlord at least sixty (60) days
prior to the requested date for closing and the parties shall have thirty (30)
days to agree on a fair market value. In the absence of such agreement of fair
market value within thirty (30) days of Tenant's notice to purchase, both
Landlord and Tenant shall each immediately order an independent MAI appraisal to
be completed within thirty (30) days. Said appraisal shall provide a fair market
value of comparable buildings in the Town of Colonie, New York area. If the two
appraisals obtained are five percent (5%) or less apart, Landlord shall be
obligated to establish the fair market value of the Premises at the average of
the two (2) appraisals less ten percent (10%). In the event the two (2)
appraisals obtained are more than five percent (5%) apart then the two (2)
appraisers shall immediately secure a third MAI appraisal and the fair market
value of the Demised Premises shall be determined by the majority opinion of
said three appraisers. Both Landlord and Tenant shall each be responsible for
the cost of their respective appraisal reports and share equally in the cost of
the third appraisal report, if any.
31.02 In the event that Tenant exercises the option
granted herein, the sale and transfer of the Demised Premises shall be governed
by the following terms and conditions:
A. The purchase price shall be paid by wire transfer
or certified bank officer's check at the time of transfer of title.
B. The Landlord shall convey the Demised Premises to
the Tenant by Bargain and Sale Deed with Covenant against Grantor in proper form
for recording, which deed shall include the covenant required by Subdivision "5"
of Section 13 of the Lien Law. The said deed shall be prepared, duly signed by
the Landlord, signature acknowledged and have any transfer tax stamps in the
proper amount
20
affixed thereto, all at the Landlord's expense, so as to convey to the Tenant
the fee simple of the Demised Premises free and clear of all liens and
encumbrances, except as herein stated.
C. The Landlord shall convey the Demised Premises
subject to: all covenants, conditions, restrictions and easements of record;
zoning and environmental protection laws; any unpaid installments of street and
improvement assessments payable after the date of the transfer of title of the
premises; any state of facts which an inspection and/or accurate survey may
show, provided that this does not render the title to the premises unmarketable.
D. Landlord may pay and discharge any liens and
encumbrances not provided for herein out of the monies paid by Tenant on the
transfer of title.
E. The Buildings on the premises shall be sold "as
is" without warranty as to condition, express or implied, in their condition on
the date of transfer of title.
F. Tenant covenants that it shall pay all Rent,
Additional Rent, and other charges that accrue pursuant to this Lease up to and
including the date of the Closing.
G. Transfer of title is to be completed at the
office of D'Agostino, Hoblock, Xxxxxxxx & Xxxxxx, P.C., 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, or such other place as is mutually convenient to the
parties hereto.
32. RIGHT OF FIRST REFUSAL.
32.01 If Landlord shall desire to sell the fee
ownership of the Demised Premises, to any unrelated person or entity, Landlord
shall be required to secure from such unrelated person or entity a bona fide
offer in writing for the purchase thereof for a monetary consideration,
immediate or deferred, subscribed by the offeror and promptly submit a photocopy
of the same to Tenant. Tenant shall have a period of twenty (20) days after
receipt thereof within which to elect to purchase the Demised Premises from
Landlord upon the same terms and provisions and at the
21
price contained in said bona fide offer. However, if that offer is made during
the original term of the Lease, Tenant shall have the option to exercise the
right to purchase under the terms set forth in Article "31" hereof. If Tenant
elects to purchase the Demised Premises under the offer received pursuant to
this Article, Tenant shall notify Landlord in writing within said 20-day period,
shall designate the date, time and place of closing, and the closing shall be
governed by the terms and conditions as set forth in the Article "31.02,
subparagraphs A through G." In the event that Seller elects not to purchase the
Demised Premises under the offer and Seller sells the Demised Premises to a
third party, the sale shall be subject to the terms of this Lease.
33. EXECUTION OF LEASE BY LANDLORD:
33.01. The submission of this document for examination
and negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Demised Premises and this document becomes effective and binding
only upon the execution and delivery hereof by Landlord and by Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered only
by agreement in writing between Landlord and Tenant, and no act or omission of
any employee or other agent of Landlord shall alter, change or modify any of the
provisions hereof.
34. TENANT AUTHORITY TO EXECUTE LEASE:
34.01. Tenant represents and warrants that it is duly
formed and in good standing, and has full corporate or partnership power and
authority, as the case may be, to enter into this Lease and has taken all
corporate or partnership action, as the case may be, necessary to carry out the
transaction contemplated herein, so that when executed, this Lease constitutes a
valid and binding obligation enforceable in accordance with its terms. Tenant
shall provide Landlord with corporate resolutions or other proof in a form
22
acceptable to Landlord, authorizing the execution of the Lease at the time of
such execution.
IN WITNESS WHEREOF, the Landlord and Tenant have signed
these presents to be signed by its duly authorized partner or officer as of the
date and year first above written.
L & P FEED, INC.
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------
Xxxxx X. XxxXxxxxxx
President
NORTHEAST ONE STOP, INC.
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------
Xxxxx X. XxxXxxxxxx
President
LEASES\ARCH2.LSE
23
STATE OF NEW YORK )
COUNTY OF ALBANY ) ss.:
On this 22 day of September, 1998, before me personally
came XXXXX X. XXXXXXXXXX, to me known, who being by me duly sworn, did depose
and say that he resides at Xxxxxxx Park, New York; that he is the President of L
& P FEEDS, INC., the corporation described in, and which executed the above
instrument by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
/s/
----------------------------------
Notary Public, State of New York
Qualified in Albany County
My Commission Expires:
STATE OF NEW YORK )
COUNTY OF ALBANY ) ss.:
On this 22 day of September, 1998, before me personally
came XXXXX X. XXXXXXXXXX, to me known, who being by me duly sworn, did depose
and say that he resides at Xxxxxxx Park, New York; that he is the President of
NORTHEAST ONE STOP, INC., the corporation described in, and which executed the
above instrument by order of the Board of Directors of said corporation and that
he signed his name thereto by like order.
/s/
----------------------------------
Notary Public, State of New York
Qualified in Albany County
My Commission Expires:
24
MAP OF DEMISED PREMISES
EXHIBIT I
NORTHEAST ONE STOP, INC.
INDEX TO LEASE
ARTICLE CAPTION PAGE
------- ------- ----
1 DEMISED PREMISES 1
2 TERM 1
3 RENT 1
4 USE OF PREMISES 2
5 TAXES 2
6 INSURANCE 4
7 ALTERATIONS 5
8 REPAIRS AND MAINTENANCE 5
9 DESTRUCTION BY FIRE OR
OTHER CASUALTY 5
10 SIGNS 6
11 UTILITIES 6
12 ASSIGNMENT OF LEASE 7
13 COMPLIANCE WITH LAWS 7
14 SUBORDINATION 8
15 WAIVER OF REDEMPTION 9
16 DEFAULT 9
17 CURING DEFAULTS 12
18 EMINENT DOMAIN 12
19 INDEMNIFICATIONS 13
20 END OF TERM 13
21 QUIET ENJOYMENT 13
22 NO WAIVER 14
23 WAIVER OF TRIAL BY JURY
AND COUNTERCLAIMS 14
24 MEMORANDUM OF LEASE 16
25 INSPECTION OF PREMISES 16
26 NOTICES 16
27 CAPTIONS 17
28 SUCCESSORS AND ASSIGNS 17
29 MISCELLANEOUS 17
30 EXTENDED TERM 18
31 OPTION TO PURCHASE 19
32 RIGHT OF FIRST REFUSAL 20
33 EXECUTION OF LEASE BY LANDLORD 21
34 TENANT AUTHORITY TO
EXECUTE LEASE 21
