RIDER TO LEASE BETWEEN 1 REWE STREET REALTY LLC, AS LANDLORD AND ALLIANCE DISTRIBUTORS HOLDING INC., AS TENANT DATED _________________, 200_

37.  (a)  PREMISES. The Premises shall be defined as the land and structure located at 1 Rewe Street, Brooklyn, New York 11211. The entire Premises are leased to Tenant hereunder and Tenant is entitled to immediate occupancy thereof, provided that until June 30, 2006 E-Tronics may continue to occupy that part of the Premises it currently occupies, and provided that commencing no later than July 1, 2006, time being of the essence, Tenant shall be entitled also to occupy the portion of the Premises currently occupied by E-Tronics. The Premises may be used by Tenant for the purposes of office and warehouse activities, and for any other lawful purposes as the Landlord consents to in writing.

(b) Landlord hereby assigns to Tenant the benefits of any “Economic Designated Zone” or similar status that applies to the Premises.

(c) TERM. This Lease shall be for a term (the “Original Term”) of five (5) years beginning on the commencement date as defined in sub-paragraph (d) unless sooner terminated pursuant to the other terms and conditions of this Lease, provided that by written notice given by Tenant to Landlord at least 90 days prior to the expiration of the Original Term, this Lease shall be extended for an additional five-year term (the “Additional Term”). The Original Term and the Additional Term, if any, are referred to herein as the “Term.” The last date of the Term, or the earlier termination hereof, shall hereinafter be referred to as the Expiration Date.

(d)  COMMENCEMENT DATE. The Lease Commencement Date shall be the date of this Lease.

(e)  LEASE YEAR. The first Lease Year shall be the twelve (12) month period of time from the first day of the first month that begins after the Commencement Date. Each Lease Year thereafter shall be successive periods of twelve (12) months.

38. FIXED RENT. (a) Tenant’s obligation to pay fixed rent shall commence on the Commencement Date. Tenant agrees to pay to Landlord, during the Term, annual fixed rent (the “Fixed Rent”) in equal monthly installments (“Monthly Installments”) without prior demand and without any set off or deduction whatsoever. The Monthly Installments will be due and payable on the Commencement Date and on the first day of each and every month thereafter for the Term. All Monthly Payments and payments of Additional Rent (defined in Paragraph 40 hereof) shall be sent to the Landlord at the address herein set forth or such other address as Landlord may designate. The Fixed Rent during the first three Lease Years of the Term shall be as follows: $1,080,000.00, with each Monthly Installment being $90,000.00, except that during the occupancy by E-Tronics as aforesaid, the Fixed Rent and the Monthly Installments, as well as Additional Rent referred to below, shall each be reduced by 24.5%. The first month’s Monthly Installment, shall be paid by Tenant upon execution hereof.

(b)  The Fixed Rent shall be increased by two (2.5%) per annum of the first day of the fourth Lease Year and on the first of each Lease Year thereafter (including each Lease Year during the Additional Term, if any), such increases to be on a cumulative, compounded basis.

(e)  In the event that the obligation to pay Fixed Rent or Additional Rent shall commence on any day other than the first of the month, the Fixed Rent and Additional Rent shall be pro-rated for the period upon which the obligation to pay rent accrues, to the last day of the calendar month.

39. TAXES. (a) The Tenant agrees to pay, as Additional Rent during the Term hereof, 100% (“Proportionate Share”) of any and all real estate taxes and/or other taxes, or assessments levied or assessed on or against the Premises (collectively, the “Taxes”). Tax bills or other documents supplied by Landlord to Tenant shall be conclusive evidence of the amount of such Taxes and shall be used for the calculation of the amounts to be paid by the Tenant.

(b)  Taxes shall be pro-rated for any partial year during the Term, as applicable.

(c) Landlord hereby appoints Tenant as Landlord's attorney in fact to file, at Tenant's expense, certiorari and related petitions and actions to seek to reduce real estate taxes otherwise payable by Tenant.

 

40.  ADDITIONAL RENT. (a) All costs and expenses which Tenant assumes or agrees to pay pursuant to this Lease (including without limitation Taxes) shall at Landlord’s election be treated as additional rent (“Additional Rent”), and, in the event of nonpayment, Landlord shall have all the rights and remedies herein provided for in the case of nonpayment of Fixed Rent.

(b)  If Tenant shall default in making any payment required to be made by Tenant (other than the payment of Fixed Rent required by this Lease), or shall default in performing any term, covenant or condition of this Lease on the part of the Tenant to be performed, and after ten (10) day written notice thereof has been given Tenant, Landlord, at its option, may, (but shall not be obligated to), make such payment or, on behalf of Tenant, expend such sum as may be necessary to perform and fulfill such term, covenant and condition, including reasonable attorney’s fees. In such event, any and all sums so expended by Landlord, with interest thereon at the highest rate permitted by law, but no more than eighteen (18%) percent per annum from the date of such expenditure shall be deemed to be Additional Rent, and shall be repaid by Tenant to Landlord on demand, but no such payment or expenditure by Landlord shall be deemed a waiver of Tenant’s default nor shall it affect any other remedy of Landlord by reason of such default.

(c)  Payment of Additional Rent shall be made by Tenant to Landlord within ten (10) days after Landlord shall have presented Tenant with an invoice therefor.

41.  SECURITY DEPOSIT. (a) Simultaneously with the execution of the within Lease, Tenant shall pay to Landlord, the sum of $180,000.00 as security for the full and faithful performance by the Tenant of all the terms, covenants and conditions of this Lease upon its part to be performed (the “Security Deposit”), which sum shall be deposited by Landlord in an interest bearing account (which interest will be added to the Security Deposit), and shall be returned to the Tenant after the time fixed as the expiration of the Term herein, provided the Tenant has fully and faithfully carried out all of said terms, covenants and conditions on its part to be performed. In the event of a bona fide sale, subject to this Lease, the Landlord shall have the right to transfer the security to the purchaser for the benefit of the Tenant, which purchaser shall continue to hold the Security Deposit in a separate account as aforesaid, and the Landlord shall be considered released by the Tenant from all liability for the return of such security to the extent transferred to the purchaser, and the Tenant agrees to look to the new Landlord solely for the return of the said security, and it is agreed that this shall apply to every transfer or assignment made on the security to a new landlord.

(b)  The Security Deposit shall not be mortgaged, assigned or encumbered by the Tenant without the express written consent of the Landlord.

42.  NO LANDLORD’S WORK. Landlord shall not be required to perform any work in connection with Tenant’s occupancy of the Premises under this Lease, except for structural repairs as expressly set forth in this Lease.

43.  ALTERATIONS. The Tenant may, at its own expense, make such alterations, improvements, additions and changes to the Premises in order to equip and operate its business for the purposes and uses set forth herein subject to the following:

(a)  Such alterations, improvements, additions and changes shall be to the interior of the Premises only; and any alterations, improvements, additions and changes to the Premises shall require the prior, written consent of the Landlord, which shall not be unreasonably withheld or delayed;

(b)  The Tenant shall not tear down or demolish any of the improvements on the Premises, or make any change or alterations in such existing improvements which, when completed, will diminish the value of the Premises without the prior written consent of the Landlord, which shall not be unreasonably withheld or delayed;

(c)  The Tenant shall not make any change in or improvement, additions or alteration to the Premises which will violate the terms of any mortgage on the Premises, or of any policy of insurance in force with respect to the Premises.

(d)  All alterations, improvements, additions and changes shall be performed in a good and workmanlike manner and shall conform to all building codes, ordinances, rules and regulations of any municipality or governmental authority having jurisdiction thereof;

(e)  Before commencing any work, or installations of any kind, Tenant shall obtain the necessary consents, authorizations and licenses from Federal, State, local and/or municipal authorities having jurisdiction over the work or installations to be done, and no work or installations shall be started unless and until all such necessary consents, authorizations and licenses shall have first been duly obtained by the Tenant (and/or its contractor or other persons doing the work or performing installations on behalf of Tenant) and given to Landlord;

(f)  Tenant or any contractor, sub-contractor, materialmen or other employed by the Tenant or any other persons who will do the work or installations as aforesaid shall be fully covered by workmen’s compensation insurance and the certificate thereof shall be furnished to the Landlord prior to the commencement of any work by such contractor, sub-contractor, materialmen or persons as aforesaid. Tenant covenants and agrees to indemnify and hold Landlord harmless from any and all claims for personal injury, death or property damage occasioned during the progress or as a result of any or all of the work done as aforesaid in or about the Premises.

 

44.  REPAIRS. (a) Anything contained herein to the contrary notwithstanding, it is agreed that the Tenant shall be responsible for all non-structural repairs (and all structural repairs to the extent same is necessitated as a result of the actions or failure to act of Tenant, its employees, representatives, agents, successors, assigns or invitees) and the repair, maintenance and replacement of the heating system, air-conditioning units, elevator, electrical system, plumbing system and other mechanical systems servicing the Premises. Tenant covenants to keep the Premises including but not limited to the heating system, air conditioning units elevator, electrical system, plumbing system and other mechanical systems in good repair. Tenant shall also generally maintain the Premises including all masonry work and landscaping and the interior and exterior of the Premises (so that it is free from refuse, debris and kept in a clean and orderly fashion). Tenant shall notify Landlord prior to performing any structural repairs as required herein, including, without limit, the replacement of any air conditioning units, which structural repairs shall be subject to the prior consent of Landlord, which consent shall not be unreasonably withheld. Except as provided herein, Landlord shall be responsible for the repair of the structural portions of the Premises, including any repairs to the roof, provided that Landlord shall not be required to (i) make any repairs caused by Tenant’s failure to maintain the Premises; and/or (ii) repair, maintain or replace any kitchen or bathroom fixtures.

(b)  All maintenance, alterations, repairs and other work to be performed by either party shall be performed by it in good and workmanlike manner and shall conform to all building codes, ordinances, rules and regulations of any municipality or governmental authority having jurisdiction thereof.

45.  INCREASE IN INSURANCE. If by reason of Tenant’s use and occupancy or abandonment of the Premises, or any other action on its part, the fire and/or liability insurance rates for the building or any adjoining or nearby buildings owned by the Landlord shall be increased, Tenant shall pay such increase as an item of Additional Rent, upon demand by Landlord.

46.  INDEMNITY; INSURANCE. (a) Each party shall indemnify, defend and hold harmless the other party from and against any and all liability and damage and all such claims and demands of any kind and nature, including but not limited to reasonable counsel fees arising out of any injury or damage however occurring which shall or may occur on or about the Premises or adjacent streets, sidewalks, curbs and parking areas and from and against any matter or thing arising out of the breach of any covenant or condition of this Lease or the carelessness, negligence or improper conduct of the indemnifying party or its, agents, servants, employees or customers.

(b)  Tenant shall provide and keep in full force and effect at Tenant’s sole cost and expense for the benefit of the Landlord and Tenant, comprehensive public liability insurance, acceptable to Landlord, with companies authorized to do business in the State of New York in which the limits of coverage shall not be less than Ten Million Dollars ($10,000,000.00) combined single limit per occurrence (the minimum limits of the comprehensive general liability policy of insurance shall in no way limit or diminish Tenant’s liability hereunder) and property insurance, acceptable to Landlord, providing all fixtures, personalty and equipment on, in or appurtenant to the Premises, including all additions and improvements with insurance against loss or damage by fire with all standard extended coverage which limits of coverage shall not be less than Five Million Dollars ($5,000,000.00) (the minimum limits of the comprehensive general liability policy of insurance shall in no way limit or diminish Tenant’s liability hereunder). Said policy or policies of insurance shall name the Landlord, and any mortgagee of Landlord, as applicable, as an additional insured and/or loss payee, as applicable, shall contain a waiver of subrogation against Landlord and shall provide that said policy or policies may not be canceled prior to the transmission to the Landlord of thirty (30) days’ written notice.

(c)  Tenant shall deliver certificates of insurance for all insurance required pursuant to this Lease to the Landlord prior to the beginning of the term of this Lease and thereafter not less than thirty days prior to the expiration of any such policy. In the event Tenant shall fail to furnish any insurance herein required, Landlord may (but is not obligated to) obtain said insurance and pay the premium therefor and the premium so paid by Landlord shall be deemed Additional Rent payable by Tenant on demand.

47.  CONDEMNATION. (a)  If the Premises shall be taken under the right of eminent domain in accordance with the terms of subparagraph (c) below, this Lease shall expire on the date of the passing of title to the authorities so exercising such right and the Fixed Rent shall be apportioned as of that date. No part of any award shall belong to the Tenant except insofar as the Tenant may be entitled to a separate award that does not in any manner diminish the award made to the Landlord, it being distinctly understood and agreed that the Tenant shall have no claim against Landlord or the condemning authority for the value of any unexpired term of this Lease. In the event of a condemnation, any award specifically made for the value of the trade fixtures shall belong to the Tenant.

(b)  If the Premises shall be condemned or taken in accordance with the terms of subparagraph (d) below, all awards made to either compensate Landlord or Tenant shall be paid to Landlord; Landlord shall promptly and at its sole cost and expense to the extent of the award, restore the remaining portion of the Premises or building in substantially the same condition and the Lease shall continue effective in all respects, except as that there shall be a reduction of Fixed Rent in the ratio that the rent then applicable to the portion of the Premises so taken bears to the current rent for the entire premises at the time of the taking. Nothing herein contained shall be deemed a waiver by Tenant of its right to claim and receive an award for the taking of its trade fixtures and equipment which right is herein specifically preserved .

(c)  If such partial taking results in a reduction of the floor area of the Premises by more than thirty-three (33%) percent, or if the Premises may not reasonably be used for substantially the same purposes as prior to the taking, then in such event, the provisions of paragraph (a) shall apply.

(d)  If such partial taking shall result in a reduction of the floor area of the Premises by thirty-three (33%) percent or less or if the Premises may reasonably be used for substantially the same purposes as prior to the taking, then the provisions of paragraph (b) above of this Rider shall apply.

48.  ASSIGNMENT. (a)  The Tenant shall not assign or sublet this Lease without the express, written consent of the Landlord which consent shall be in Landlord’s sole discretion.

(b) Any subletting or assignment of this Lease shall be on the following terms and conditions:

(1)  The uses and purposes shall be exactly as set forth herein;

(2)  Prior to entering into any sublease or assignment of the Premises, Tenant shall submit the terms of the proposed subletting or assignment, the name of the proposed subtenant or assignee, financial references of the proposed subtenant or assignee and such other information as to the financial responsibility and standing of the proposed subtenant or assignee as Landlord may reasonably require together with a copy of the proposed sublease or assignment;

(3)  In the event that Landlord consents to an assignment or sublease, fifty (50%) percent of the amount of any rent, additional rent or other consideration required to be paid pursuant to the assignment or sublease which exceeds the rent, additional rent or other consideration payable hereunder, shall be payable directly to the Landlord, it being the intent of the parties that the rents and additional rents hereunder shall be deemed increased by the amount of such excess rents payable pursuant to the sublease or assignment. The sublessee or assignee shall deposit with the Landlord as additional security an amount equal to one (1) months’ rent in effect at the time of the sublease or assignment.

(c)  The consent by the Landlord to any assignment or subletting shall not be deemed to release the Tenant from the within Lease or any of its obligations to fully perform all of the terms and covenant contained herein.

(d)  If, at the time of such assignment and/or subletting, the Tenant is in default in any of the terms, covenants and conditions of the within Lease, the Landlord may withhold and/or revoke its consent to such assignment or subletting and the parties agree that this refusal shall not be deemed unreasonable, arbitrary or capricious.

(e)  The proposed subtenant or assignee shall be required to execute in a form reasonably satisfactory to Landlord or its attorneys, an agreement which shall obligate it to duly perform all of the Tenant’s covenants and obligations under the Lease, including any accrued obligations at the time of the assignment or subletting.

(f) The assignee shall execute, in a form reasonably satisfactory to the Landlord, an assignment and assumption agreement. A copy of said assignment and assumption agreement shall be forwarded to the Landlord within ten (10) days thereof;

(g)  The subtenant shall execute, in a form satisfactory to Landlord, a sublease, a copy of which shall be forwarded to Landlord within ten (10) days thereof.

(h)  Landlord shall not be liable to the Tenant for monetary damages as a result of the unreasonable delay or refusal to provide consent.

(i) That the effective date of the assignment or subletting may not be earlier than the Commencement Date of the Term.

49. SUBORDINATION. This Lease and all rights of Tenant hereunder are subject and subordinate (i) to any mortgage or deed of trust, blanket or otherwise (the “Permanent Mortgage”), which does now or may hereafter affect the Premises (and which may also affect other property), such mortgagee with respect to same being hereinafter referred to as the “Superior Mortgagee” and (ii) to any and all increases, renewals, modifications, consolidations, replacements and extensions of any such Permanent Mortgage, and (iii) each underlying lease which may now or hereafter affect all or any portion of the Premises or any interest therein, such lessor with respect to such lease, hereinafter referred to as the “Superior Lessor,” provided that Landlord shall use reasonable commercial efforts to obtain a non-disturbance agreement from any party to whom this Lease is subordinated. Tenant shall execute, acknowledge and deliver any instrument reasonably requested by Landlord, a Superior Lessor or Superior Mortgagee (including without limitation subordination, lockbox and payment agreements) to evidence such subordination, but no such instrument shall be necessary to make such subordination effective. Tenant agrees that (a) Tenant shall attorn to the Superior Mortgagee, and (b) any cancellation, surrender or amendment of this Lease without the prior written consent of the Superior Mortgagee shall be voidable by the Superior Mortgagee.

50.  LATE CHARGE. In the event that the Tenant shall not have paid the Fixed Rent or any item of Additional Rent on or before ten (10) days of the date it is due, (the “Grace Period”) then, Tenant shall pay a late charge equal to 3% of such rent. Tenant shall also pay interest thereon from the expiration of the Grace Period to the date of Landlord’s receipt thereof at the lesser of (i) 1% per month or (ii) the maximum rate permitted by law. The demand for and collection of the aforesaid late charges and interest shall in no way be deemed a waiver of any and all other remedies that the Landlord may have under the terms of this Lease by summary proceedings or otherwise. Tenant agrees this amount is for Landlord’s costs related to such late payment, is reasonable, is not punitive and is not intended to be a penalty.

51. TRIPLE NET. (a) The rent specified in this Lease shall be “triple net” to Landlord in each year, during the Term and any extension or modification thereof and the parties hereto intend that Landlord shall receive all Fixed Rent and all Additional Rent payable hereunder free and clear of any and all liability or responsibility of Landlord for impositions, taxes, liens, charges or expenses, offsets, or similar deductions of any nature whatsoever.

(b)  Tenant shall pay all costs, expenses and damage which are attributable to Tenant or the ownership, use or possession of the Premises and which, except for the execution of this Lease, would have been chargeable against the Premises or otherwise payable by the Landlord and Tenant shall indemnify and hold Landlord harmless against such expenses and obligations. Tenant shall pay, or cause to be paid all utility services rendered or furnished to the Premises, including but not limited to heat, water, gas, air-conditioning and electric, and shall pay or cause to be paid all fire protection, security protection, sewer treatment facilities, sanitation, janitorial, landscaping, snow and garbage removal, and the like, together with all taxes levied or other charges on such utilities. Tenant will be responsible for assuring that all billing statements for all utilities will be mailed directly to Tenant for payment.

(c)  Tenant understands and agrees that, except as provided otherwise herein, Landlord is to have no obligation whatsoever under this Lease or otherwise in respect of the repair, operation, maintenance and/or replacement of the Premises or for the quality or compliance with applicable law of its construction (or in either case, the lack thereof) with all such obligations being those of the Tenant, at its sole cost and expense. Except as specifically and expressly set forth in this Lease, Landlord is to furnish no improvements, equipment or fixtures of any kind, either on or to the interior or on or to the exterior of the Premises. It is agreed between the parties, that anything not expressly set forth herein which must be done in, on or to the Premises in order to make the same ready for Tenant’s business, will be done and accomplished by Tenant at its own cost and expense. The intent of the parties is that this Lease be “triple net” with no expenditures required by Landlord in connection with Tenant’s use, operation or maintenance of the Premises.

(d)  Notwithstanding the foregoing, Landlord may perform such repairs and/or alterations at or to the Premises (i) to the extent same is not performed by Tenant hereunder, and the cost of performing such work shall be charged against Tenant as Additional Rent, and (ii) as Landlord, in its sole discretion determines would improve or increase the value of the Premises, so long as such work does not impair Tenant’s ability to use the Premises as provided for herein.

52. SIGNS. (a)  Tenant shall not display, erect or affix any lettering, signs, posters, streamers, plaquerts or any other like advertising media on the windows or exterior of the Premises or upon the building or buildings at which they form a part without the Landlord’s prior written approval, which approval shall not be unreasonably withheld delayed or conditioned.

(b)  Tenant shall submit to Landlord, with its request for permission to erect or install any sign, lettering or like advertising media, complete sign drawings and specifications or prior approval.

(c)  Upon obtaining approval of the Landlord, the approved sign shall be installed by the Tenant at its own cost and expense and shall at all times be in total compliance with all laws, rules, regulations, ordinances or requirements of any governmental authority, municipality or agency having jurisdiction thereof.

53. ARMS-LENGTH. Landlord and Tenant acknowledge that this Lease is the product of an arms length negotiation engaged between Landlord, Tenant and their respective attorneys with each party contributing to the final instrument. In consequence thereof, should any dispute arise involving the construction or interpretation of this Lease, no presumption or inference shall be drawn against one party by the other.

54.  ATTORNEYS’ FEES, COUNTERCLAIMS AND JURY WAIVER. (a) Tenant shall, in addition to all court costs, expenses or fees, pay to Landlord, as Additional Rent reasonable attorney’s fees, costs, expenses or disbursements incurred by the Landlord in connection with any breach or default by Tenant or to protect or preserve any of Landlord’s rights hereunder or in any action, proceeding, summary proceeding or arbitration arising out of this Lease or the Landlord-Tenant relationship. These items shall be deemed “Additional Rent” and shall be due and payable when incurred by Landlord and may be includable in any summary proceeding or other action. TENANT WAIVES THE RIGHT TO ASSERT ANY COUNTERCLAIMS OR SET OFFS IN A SUMMARY PROCEEDING, AND EACH PARTY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT IN CONNECTION WITH THIS LEASE. In the event of litigation by a party hereto to enforce its rights hereunder, the prevailing party shall be entitled to recover its reasonable attorney's fees, costs and disbursements.

55.  PLATE GLASS. Tenant, at its own cost and expense, shall maintain plate glass insurance for the Premises for and in the name of the Landlord.

56.  COLLECTION AGAINST LANDLORD. Tenant agrees that it shall look solely to the estate and property of Landlord in the land and buildings comprising the building for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to any of the terms, covenants and conditions of this Lease to be observed or performed by Landlord; and no other assets of the Landlord or any partner, member, owner, stockholder or other principal of Landlord shall be subject to levy, execution or other procedures for the satisfaction of Tenant’s remedies.

57.  UNCOLLECTED FUNDS. In the event that any payment by the Tenant of Fixed Rent or Additional Rent shall be dishonored for any reason whatsoever, including but not limited to “uncollected funds”, “insufficient funds”, etc., the Landlord shall, thereafter, have the right to insist that the replacement payment shall be made by certified check, bank check or cash.

58. WAIVER. (a)  The failure of the Landlord to insist upon strict performance of any term, covenant or condition to be performed on the part of the Tenant, shall not be deemed or construed to constitute a waiver thereof, or consent by the Landlord to any future performance.

 

(b)  The acceptance by the Landlord of any item of Fixed Rent or Additional Rent, with notice, whether constructive or actual, of any default on the part of the Tenant shall not be deemed a waiver, forgiveness or condonation of said default on the part of the Landlord.

59.  MECHANIC’S LIENS. The Landlord shall not be liable for any labor or materials furnished or to be furnished to the Tenant and no Mechanic’s or other liens for any such labor or materials shall attach to or affect the interest of the Landlord in and to the Premises. If any Mechanic’s Lien is filed against the Premises, based on any act or interest of the Tenant or anyone claiming through the Tenant, its Subtenants or assigns, or if any security agreement is filed for or affecting any materials, machinery or fixtures used in the construction, repair or operation by the Tenant, the Tenant shall immediately take such action by bonding, deposit or payment as will remove the lien or security interest. If the Tenant has not removed the lien or security interest within fourteen (14) days after notice to the Tenant, the Landlord may in its sole option (but is not obligated to), pay the amount of the lien or security interest or discharge the same by deposit and the amount so paid or deposited with interest thereon shall be deemed Additional Rent under this Lease and shall be payable immediately upon demand. In addition to the remedies previously set forth and as may elsewhere be set forth in the written Lease, failure on the part of the Tenant to discharge, bond or otherwise remove the lien or security interest within fourteen (14) days, shall be deemed a default hereunder. In such event, the Lease may then be terminated pursuant to its terms.

60. ENTIRE AGREEMENT. This Lease contains the entire agreement between the parties and all prior agreements, conversations, set ups, or representations, if any, shall be deemed to have merged herein. Tenant is not relying upon representations or agreements other than those contained in this Lease. This Lease may not be changed, altered or modified unless in writing, signed by each of the parties hereto.

61. UNENFORCEABILITY. If any term or provision of this Lease or its application to any person or circumstances is to any extent declared to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Lease, or the application of such term or provision to persons or circumstances, other than those as to which is held invalid or unenforceable shall not be affected thereby and each term and provision shall be valid and enforced to the fullest extent permitted by law.

62.  AS-IS. Tenant represents and warrants to the Landlord that it has inspected the Premises and is fully familiar with the condition thereof. NEITHER LANDLORD NOR ITS AGENT MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE PHYSICAL CONDITION OF THE PREMISES, BUILDING OR LAND UPON WHICH IT IS ERECTED, AND TENANT AGREES TO ACCEPT THE PREMISES IN “AS IS” CONDITION. Landlord makes no representation that Tenant’s use of the Premises is in accordance with the Certificate of Occupancy with respect to the Premises.

63.  NOTICES. Any notice required to be served herein, shall be deemed properly served, if sent registered, or certified mail, return receipt requested, or by a recognized, reputable overnight courier service, as follows:

If to Landlord to: 1 REWE STREET REALTY LLC

___________________________

____________, New York

Attention:

 

With a copy to Landlord’s attorneys:

Moritt, Hock, Hamroff & Horowitz, LLP

400 Garden City Plaza, Suite 202

Garden City, New York 11530

Attention: Eric M. Mencher, Esq.

If to Tenant:  ALLIANCE DISTRIBUTORS HOLDING INC.

_____________________

_____________________

 

With a copy to Tenant’s attorneys:

Oscar Folger, Esq.

521 Fifth Avenue, 24^th floor

New York, New York 10175

64. HOLDING-OVER AND POSSESSION. Any holding over after the expiration of the term of this Lease or any renewal hereof shall be construed to be a tenancy from month-to-month at a minimum annual rent equal to twice the Fixed Rent (prorated on a monthly basis) then being paid by Tenant; together with a sum equal to all Additional Rent payable hereunder for each month or part thereof during which the Tenant remains in possession of the Premises beyond the expiration of the term hereof and said tenancy shall otherwise be on the terms, covenants, conditions, and provisions specified in this Lease, to the extent that the foregoing shall be applicable. 

65.  NOT AN OFFER. Submission of this document for examination or signature by Tenant does not constitute an offer for a lease by Landlord, and it is not to be effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.

66.  FURTHER ASSURANCES.  Each of the parties hereto, without cost to the other, shall at any time and from time to time hereafter, execute and deliver any and all further instruments and assurances and perform any acts that the other party may reasonably request for the purpose of giving full force and effect to the provisions of this agreement  

67. HEADINGS. Headings are for convenience only, and are not meant to confer any rights or obligations on the parties hereto.

68.  COUNTERPARTS AND SIGNATURES. The printed form of Lease and the Rider may be signed by the undersigned in counterparts. Facsimile signatures shall have the same effect as originals.

69. USE OF FACILITIES BY EMERICH GOLDSTEIN. Notwithstanding anything in this Lease to the contrary, for so long as this Lease is in effect, Emerich Goldstein will have exclusive use of the office, kitchen and dining room that he utilized immediately prior to the Commencement Date, and he will retain the right to use the other facilities in the Premises (including the conference room when not in use by Tenant) for his personal business interests.

70.  ENVIRONMENTAL. Landlord represents and warrants that it and, during Landlord's ownership, its tenants, have, prior to the Commencement Date, complied strictly and in all respects with the applicable laws, statutes, ordinances, permits, orders, decrees, guidelines, rules, regulations and orders pertaining to health or the environment (“Applicable Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”), as each of the foregoing may be amended from time to time. Tenant, and its agents, contractors, employees and invitees, shall comply strictly and in all respects with the Applicable Environmental Laws, including without limitation CERCLA and RCRA, as each of the foregoing may be amended from time to time. Each party does hereby, for itself and its heirs, legal representatives, successors and assigns agree to and hereby does indemnify, defend and hold harmless the other party, and its heirs, legal representatives, successors and assigns, from any and all liabilities, assessments, suits, damages, costs and expenses, attorneys’ fees and judgments related to or arising out of (a) the breach of any of the agreements of the indemnifying party under this section, (b) the handling, installation, storage, use, generation, treatment or disposal by the indemnifying party of Hazardous Materials (as hereinafter defined), including any cleanup, remedial, removal or restoration work required by the Applicable Environmental Laws which is necessitated by indemnifying party’s violation of the provisions of this Section or (c) the assertion of any lien or claim upon the Premises pursuant to the Applicable Environmental Laws which is instituted due to any action of the indemnifying party; provided however, as between Landlord and Tenant, in connection with any such indemnification arising out of any event occurring after the Commencement Date, unless the event can be shown to be the action or omission of the Landlord, the Tenant shall indemnify the Landlord in connection therewith. The covenants and agreements of Tenant under this section shall survive the expiration or termination of this Lease. As used in this Lease, the term “Hazardous Materials” means any flammables, explosives, radioactive materials, asbestos-containing materials, petroleum products, the group of organic compounds known as polychlorinated byphenyls and other hazardous waste, toxic substances or related materials, including without limitation, substances defined as hazardous substances, hazardous materials, toxic substances or solid waste in CERCLA, the Hazardous Materials Transportation Act and RCRA, as each of the foregoing may be amended from time to time.

71. BROKER. Each party represents and warrants to the other that no real estate broker brought about this transaction. Each party agrees to indemnify (the “Indemnifying Party”) and hold the other harmless from and against all causes of action, liabilities and costs (including reasonable attorney's fees) arising out of a claim for a commission by any other broker purporting to have acted on behalf of the Indemnifying Party.

72. LANDLORD’S AUTHORITY. Landlord represents and warrants that it is the sole owner of the land, buildings and equipment described on Appendix A attached hereto, together with all buildings, improvements, facilities and fixtures located on the land, and any easements, rights of access and other property rights necessary to allow Tenant unobstructed use and occupancy of the Premises. Landlord represents and warrants that it has full right and authority to lease the Premises to Tenant and to otherwise enter into this Lease on the terms and conditions set forth herein, and that the provisions of this Lease do not conflict with or violate the provisions of existing agreements between the Landlord and third parties.

73.  RIGHT OF FIRST REFUSAL. Should Landlord during the Term enter into an agreement to sell the Premises, or any portion thereof, to a non-affiliated third party (“Sales Agreement”), Landlord shall provide to Tenant a written notice of intent to sell (“Notice”) with a copy of the Sales Agreement. Tenant shall have and may exercise an option to acquire the Premises, or the portion thereof subject to the Sales Agreement, on the same terms and conditions, other than as to the identity of the Tenant and date for closing, as are set forth in the Sales Agreement. If Tenant does not within 30 days after receiving the Notice and copy of the Sales Agreement give Landlord written notice of Tenant’s intention to exercise such option, then subject to and as provided by the Sales Agreement Landlord may sell the Premises or portion thereof covered by the Sales Agreement by no later than the 150th day after receipt by Tenant of the Notice and copy of the Sales Agreement. If Landlord does not timely so sell the Premises or varies the material terms of the Sales Agreement, Landlord shall again comply with the terms of this Section 15 as if no Notice had ever been given. If Tenant timely notifies Landlord of its intent to exercise such option, then at such time as Tenant may specify, but no later than 60 days following receipt by Landlord of such notice from Tenant, and at such place within the city or town where the Premises is located as Landlord may specify, or such other place and time and Landlord and Tenant may agree, Tenant shall exercise its option by purchasing, and Landlord shall sell to Tenant, the Premises or portion thereof subject to the Sales Agreement. In the event that Tenant exercises such option but fails to timely close (other than because of default by Landlord), then this Section 73 and the right of first refusal hereunder are terminated and of no further effect.

74. RIDER CONTROLS. In the event of a conflict between the terms of this Rider and the printed form of the Lease to which the Rider is attached, the terms hereof shall govern.

1 REWE STREET REALTY LLC, Landlord

By:_________________________________

Name:

Title:

ALLIANCE DISTRIBUTORS HOLDING INC., Tenant

By:_________________________________

Name:

Title: