UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

 

     Date of Report (Date of earliest event reported):             June 2, 2017             

 

TWINLAB CONSOLIDATED HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

  

Nevada 

001-55181

46-3951742

(State or other jurisdiction

(Commission File Number)

(IRS Employer

of incorporation)

 

Identification No.)

 

4800 T-Rex Avenue, Suite 305, Boca Raton, Florida

33431

(Address of principal executive offices) 

(Zip Code)

 

Registrant's telephone number, including area code   

(561) 443-5301

 

N/A

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. □

 

 
 

 

 

Section 1 – Registrant’s Business and Operations

 

Item 1.01.     Entry into a Material Definitive Agreement.

 

Settlement Agreement , Promissory Note, and Subordination Agreement

 

On June 2, 2017, Twinlab Consolidated Holdings, Inc. (“ Twinlab Consolidated ” or the “ Company ”), Twinlab Consolidation Corporation (“ Twinlab ”), Nutrascience Labs, Inc. (“ NSL ” and together with Twinlab and Twinlab Consolidated, the “ Twinlab Parties ”), 2014 Huntington Holdings, LLC (“ 2014 Huntington ”), Carolyn Holdings, LLC (“ Carolyn Holdings ”), NCL Holding Company, LLC (“ NC ”) and Vitacap Labs, LLC (“ Vita ” and together with 2014 Huntington, Carolyn Holdings and NC, the “ Huntington Parties ”) entered into a Settlement Agreement (“ Settlement Agreement ”) to resolve certain previous matters among the parties.

 

As previously disclosed, Twinlab and 2014 Huntington entered into a certain securities purchase agreement, dated as of August 1, 2014 (the “ SPA ”) pursuant to which Twinlab sold one million five hundred twenty eight thousand three hundred eighty four (1,528,384) shares of Twinlab common stock (the “ Twinlab Shares ”). Pursuant to the agreement and plan of merger, dated as of September 4, 2014, by and among Twinlab, TCC Merger Co. and Twinlab Consolidated, TCC Merger Co., a wholly-owned subsidiary of Twinlab Consolidated, merged with and into Twinlab (the “ Merger ”). As a result of the Merger, (i) Twinlab became a wholly-owned subsidiary of Twinlab Consolidated, (ii) the Twinlab Shares were converted into an equal number of shares of common stock, par value $0.001 per share (the “ Common Stock ”) of Twinlab Consolidated (the “ Twinlab Consolidated Shares ”) and (iii) Twinlab Consolidated became responsible for the obligations of Twinlab under the SPA.

 

Pursuant to the SPA, Twinlab Consolidated became obligated to make a cash payment to 2014 Huntington because the sixty (60) day volume weighted average stock price of the Common Stock immediately prior to the eighteen (18) month anniversary of the closing of the SPA was less than $2.29 per share. This resulted in Twinlab Consolidated being obligated to pay 2014 Huntington an aggregate of three million two hundred thousand dollars ($3,200,000) (the “ Obligation ”).

 

In order to settle the Obligation and resolve certain other matters, the Settlement Agreement provides (i) Twinlab Consolidated was required to issue an unsecured promissory note (the “ Note ”) in the aggregate principal amount of three million two hundred thousand ($3,200,000) dollars to 2014 Huntington, (ii) 2014 Huntington was required to return seven hundred seventy eight thousand three hundred eighty five (778,385) Twinlab Consolidated Shares (“ Subject Shares ”) to Twinlab Consolidated to be held in escrow on the terms and conditions set forth in the Settlement Agreement, (iii) Twinlab Consolidated is required to provide certain piggyback registration rights to 2014 Huntington in respect of the remaining seven hundred forty nine thousand nine hundred ninety nine (749,999) Twinlab Consolidated Shares (the “ Remaining Shares ”) held by 2014 Huntington and the Subject Shares and (iv) Carolyn Holdings and Twinlab Consolidated were required to enter into a four (4) year Lease (as defined below) for the premises located at 70 Carolyn Boulevard, Farmingdale, New York.

 

 
1

 

 

On June 2, 2017, Twinlab Consolidated executed the Note in favor of 2014 Huntington. Pursuant to the Settlement Agreement, the terms of the Note included the principal sum of three million two hundred thousand ($3,200,000) dollars together with interest on the unpaid principal balance. The Note accrues interest on the unpaid principal balance at the rate of eight and one-half percent (8.5%) per annum from August 6, 2016 through and including the date on which the entire principal balance shall have been paid in full. If the Note remains outstanding on August 15, 2017, the interest rate from and after August 15, 2017 shall be increased to ten percent (10%) per annum. Pursuant to the Settlement Agreement and the Note, Twinlab Consolidated paid 2014 Huntington fifty thousand ($50,000) dollars that was applied to the accrued interest from August 6, 2016 through June 2, 2017. Under the terms of the Note, Twinlab Consolidated shall pay ten thousand ($10,000) dollars of the accrued and unpaid interest in cash on the last day of each calendar month beginning June 30, 2017 and any accrued but unpaid interest in excess of ten thousand ($10,000) dollars shall accrue and be payable on the earlier to occur of June 2, 2019 or the date the Note is accelerated by 2014 Huntington following the occurrence and continuance of an event of default as defined in the Note. If the Note is accelerated following the occurrence of an event of default, interest shall accrue on the unpaid principal balance of the Note at the rate described above plus two percent (2%) per annum.

 

The Settlement Agreement became effective (the “ Effective Date ”) on June 2, 2017 upon the satisfaction of the following conditions: (a) Twinlab Consolidated’s issuance and delivery of the Note to 2014 Huntington along with a payment of fifty thousand ($50,000) dollars to 2014 Huntington that was applied as interest accrued on the Note from August 6, 2016, (b) 2014 Huntington’s delivery to Twinlab Consolidated of the stock certificate representing the Subject Shares to be held in escrow together with a stock power duly endorsed in blank or other instruments of transfer requested by Twinlab Consolidated and (c) Carolyn Holdings and Twinlab Consolidated have entered into the Lease as described below.

 

If the Note is paid off on or prior to August 14, 2017, the Subject Shares shall automatically be released from escrow, transferred and assigned to Twinlab Consolidated for no additional consideration. If the Note remains outstanding on August 15, 2017, Twinlab Consolidated shall have the right, but not the obligation, to pay one hundred forty thousand ($140,000) dollars (the “ Twinlab Option Price ”) to 2014 Huntington to purchase seven hundred sixty four thousand one hundred ninety two (764,192) of the Subject Shares (the “ Twinlab Purchase Option ”). Twinlab Consolidated shall be required to exercise the Twinlab Purchase Option and pay the Twinlab Option Price to 2014 Huntington no later than August 22, 2017. Upon the timely exercise and payment by Twinlab Consolidated of the Twinlab Option Price, seven hundred sixty four thousand one hundred ninety two (764,192) of the Subject Shares shall be released from escrow and transferred and assigned to the Company. If the Note remains outstanding on August 15, 2017 and Twinlab Consolidated does not timely exercise the Twinlab Purchase Option and pay the Twinlab Option Price, the Subject Shares shall be returned from escrow to 2014 Huntington and shall cease to be subject to repurchase by Twinlab Consolidated.

 

Pursuant to the Settlement Agreement, Twinlab Consolidated agreed if, at any time on or after the Effective Date, it proposes to register any of its securities under the Securities Act of 1933, as amended (the “Act”) for its own account or for other holders (other than in connection with a registration on Form S-4 or Form S-8), Twinlab Consolidated will use its commercially reasonable efforts to include the Subject Shares and Remaining Shares held by 2014 Huntington in such registration, subject to certain limitations, restrictions and exceptions as specified in the Settlement Agreement. Twinlab Consolidated agreed to pay all registration expenses, as defined in the Settlement Agreement, relating to the registration obligations.

 

 
2

 

 

In connection with resolving certain other matters between the Twinlab Parties and Huntington Parties, NC rescinded a notice of termination, dated April 14, 2017, that it delivered to NSL. Additionally, the parties agreed that the second transition services and license agreement (the “ TSA ”), dated August 12, 2015, by and among NSL, NC, Vita and Carolyn Holdings is terminated and of no further force and effect. No party has any obligations or liabilities to any other party arising under, or related to, the TSA or its termination. The Settlement Agreement further provides that as the Effective Date, each of the following agreements are terminated and of no further force and effect: (i) a certain landlord’s agreement, dated March 1, 2016, by and among Carolyn Holdings, NC, NSL and Midcap Funding X Trust; and (ii) a certain licensor’s agreement, dated March 1, 2016, by and among NC, NSL and Midcap Funding X Trust.

 

On June 2, 2017, 2014 Huntington (as a “ Subordinated Lender ”), Twinlab Consolidated, Twinlab, Twinlab Holdings, Inc., ISI Brands Inc., Twinlab Corporation, NSL, Nutrascience Labs IP Corporation, Organic Holdings LLC, Reserve Life Organics, LLC, Resvitale, LLC, Re-Body, LLC, Innovitamin Organics, LLC, Organics Management LLC, Cocoawell, LLC, Fembody, LLC, Reserve Life Nutrition, L.L.C., Innovita Specialty Distribution, LLC, Joie Essance, LLC (collectively, “ Borrower ”) and Midcap Funding X Trust (“ Agent ”), entered into a subordination agreement (“ Subordination Agreement ”) in connection with the Settlement Agreement. Midcap Funding X Trust serves as Agent for the financial institutions or other entities from time to time parties to a senior loan agreement and as lender or holder of the senior loans that may exist from time to time (the “ Lenders ” and collectively with the Agent, the “ Senior Lenders ”). The Borrower and Senior Lenders are party to a credit and security agreement, dated January 22, 2015 pursuant to which the Senior Lenders have agreed to make certain loans and financial accommodations to the Borrower and the other credit parties. All of Borrower’s obligations to Senior Lenders under the senior loan agreement and the other senior loan documents are secured by liens on and security interests in substantially all of the existing and thereafter acquired personal property of Borrower. To induce the Agent and Senior Lenders to consent to the transactions contemplated by the Note, Agent and Senior Lenders have required the execution and delivery of the Subordination Agreement to set forth the relative rights and priorities of Senior Lenders and Subordinated Lender under the senior loan documents and subordinated loan documents. Pursuant to the Subordination Agreement, 2014 Huntington, as the Subordinated Lender, agreed that payment of subordinated loans are subordinated to the payment in full, as defined in the Subordination Agreement, of all senior loans. Payments on the Note may be made by Borrower if no event of default exists or will be created by such payment. Until the senior loans are paid in full, as defined in the Subordination Agreement, the Subordinated Lender agreed not to take any enforcement action, as defined in the Subordination Agreement, with respect to all or any portion of the subordinated loans, without the prior written consent of Agent.

 

 
3

 

 

The foregoing is a summary of the terms of the Settlement Agreement, unsecured promissory note and Subordination Agreement, respectively. The summary does not purport to be complete and is qualified in its entirety by reference to the Settlement Agreement, unsecured promissory note and Subordination Agreement, copies of which are attached herewith as Exhibit 10.165, Exhibit 10.166 and Exhibit 10.167, respectively, to this Form 8-K and incorporated herein by reference.

 

 

Real Estate Lease

 

On June 2, 2017, Twinlab Consolidated and Carolyn Holdings entered in an Agreement of Lease (the “ Lease ”) regarding certain land with improvements in the building known as 70 Carolyn Boulevard, Farmingdale, New York (the “ Premises ”). The Lease is for a term of four (4) years commencing on June 2, 2017 (the “ Term ”) with an annual rental rate paid in equal monthly installments in advance on the first day of each month during the Term. The Lease is subject and subordinate to all ground or underlying leases and to all mortgages which are now or hereafter affect such leases or the real property of which the premises are a part.

 

On June 2, 2017, Carolyn Holdings and Twinlab Consolidated entered into a rider to the Lease (“ Rider to the Lease ”) which is made a part of the Lease. Pursuant to the Rider to the Lease, Twinlab Consolidated, as tenant, will pay Carolyn Holdings, as Owner, a fixed rent (“ Minimum Base Rent ”) at the following annual rates: (i) during the first year of the Term, two hundred sixty thousand ($260,000) dollars in equal monthly installments of twenty one thousand six hundred sixty six and 67/100 ($21.666.67) dollars each, (ii) during the second year of the Term, two hundred sixty seven thousand eight hundred ($267,800) dollars in equal monthly installments of twenty two thousand three hundred sixteen and 67/100 ($22,316.67) dollars each, (iii) during the third year of the Term, two hundred seventy-five thousand eight hundred thirty-four ($275,834) dollars in equal monthly installments of twenty two thousand nine hundred eighty six and 17/100 ($22,986.17) dollars each, and (iv) during the fourth year of the Term, two hundred eighty-four thousand one hundred nine ($284,109) dollars in equal monthly installments of twenty three thousand six hundred seventy five and 75/100 ($23,675.75) dollars each. Additionally, Twinlab Consolidated will pay Carolyn Holdings, as additional rent, all operating expenses as defined in the Rider to the Lease. Twinlab Consolidated may have the opportunity to renew the term of the Lease for one additional consecutive period of two (2) years (“ Renewal Term ”). The Renewal Term will have the same terms and conditions as the Term except the Minimum Base Rent payable during the Renewal Term will increase by (x) three percent (3%) on the first day of the Renewal Term and (y) three percent (3%) on the first anniversary of the Renewal Term.

 

On June 2, 2017, Carolyn Holdings, Twinlab Consolidated and Midcap Funding X Trust entered into a Landlord’s Agreement (“ Landlord’s Agreement ”) regarding the Premises subject to the Lease and Rider to the Lease. Pursuant to the Landlord’s Agreement, Carolyn Holdings was advised that Midcap Funding X Trust has a lien on Twinlab Consolidated’s collateral stored at the Premises. Carolyn Holdings agreed that the collateral would not be deemed a fixture or part of the Premises but would be considered personal property. Pursuant to the Landlord’s Agreement, the parties agreed that Carolyn Holdings would grant Midcap Funding X Trust with prompt and reasonable access to the Premises to the same extent of Twinlab Consolidated under the Lease in order to have access to and inspect or remove any or all of the collateral.

 

 
4

 

 

The foregoing is a summary of the terms of the Agreement of Lease, the Rider to the Lease and the Landlord’s Agreement, respectively. The summary does not purport to be complete and is qualified in its entirety by reference to the Agreement of Lease, the Rider to the Lease and the Landlord’s Agreement, respectively, copies of which are attached herewith as Exhibit 10.168, 10.169 and 10.170, respectively, to this Form 8-K and incorporated herein by reference.

 

 

Section 2 – Financial Information

 

Item 2.03.     Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

 

The information set forth under "Item 1.01. Entry into a Material Definitive Agreement" of this Current Report on Form 8-K with respect to the entry into the Settlement Agreement, unsecured promissory note and the Subordination Agreement (as described above) is incorporated into this Item 2.03 by reference.

 

 

 

Section 9 – Financial Statements and Exhibits

 

Item 9.01.     Financial Statements and Exhibits.

 

 

(d)     Exhibits

 

Exhibit No.

 

Description

10.165

 

Settlement Agreement, dated June 2, 2017, by and among Twinlab Consolidated Corporation, Twinlab Consolidated Holdings, Inc., Nutrascience Labs, Inc., 2014 Huntington Holdings, LLC, Carolyn Holdings, LLC, NCL Holding Company, LLC and Vitacap Labs, LLC.

     

10.166

 

Unsecured Promissory Note, dated June 2, 2017, issued by Twinlab Consolidated Holdings, Inc. in favor of 2014 Huntington Holdings, LLC.

     

10.167

 

Subordination Agreement, dated June 2, 2017, by and among 2014 Huntington Holdings, LLC, Twinlab Consolidated Holdings, Inc., Twinlab Consolidation Corporation, Twinlab Holdings, Inc., ISI Brands Inc., Twinlab Corporation, Nutrascience Labs, Inc., Nutrascience Labs IP Corporation, Organic Holdings LLC, Reserve Life Organics, LLC, Resvitale, LLC, Re-Body, LLC, Innovitamin Organics, LLC, Organics Management LLC, Cocoawell, LLC, Fembody, LLC, Reserve Life Nutrition, L.L.C., Innovita Specialty Distribution, LLC, Joie Essance, LLC, and Midcap Funding X Trust.

 

 
5

 

 

10.168

 

Agreement of Lease, dated June 2, 2017, between Carolyn Holdings, LLC and Twinlab Consolidated Holdings, Inc.

     

10.169

 

Rider to the Lease, dated June 2, 2017, by and between Carolyn Holdings, LLC and Twinlab Consolidated Holdings, Inc.

     

10.170

 

Landlord’s Agreement, dated June 2, 2017, by and among Carolyn Holdings LLC, Twinlab Consolidated Holdings, Inc. and Midcap Funding X Trust.

 

 
6

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

TWINLAB CONSOLIDATED HOLDINGS, INC.

         
         

Date: June 8, 2017

By:

 

/s/ Naomi L. Whittel

 
     

Naomi L. Whittel

 
     

Chief Executive Officer

 

 

 
7

 

 

EXHIBIT INDEX

 

Exhibit No.

 

Description

10.165

 

Settlement Agreement, dated June 2, 2017, by and among Twinlab Consolidated Corporation, Twinlab Consolidated Holdings, Inc., Nutrascience Labs, Inc., 2014 Huntington Holdings, LLC, Carolyn Holdings, LLC, NCL Holding Company, LLC and Vitacap Labs, LLC.

     

10.166

 

Unsecured Promissory Note, dated June 2, 2017, issued by Twinlab Consolidated Holdings, Inc. in favor of 2014 Huntington Holdings, LLC.

     

10.167

 

Subordination Agreement, dated June 2, 2017, by and among 2014 Huntington Holdings, LLC, Twinlab Consolidated Holdings, Inc., Twinlab Consolidation Corporation, Twinlab Holdings, Inc., ISI Brands Inc., Twinlab Corporation, Nutrascience Labs, Inc., Nutrascience Labs IP Corporation, Organic Holdings LLC, Reserve Life Organics, LLC, Resvitale, LLC, Re-Body, LLC, Innovitamin Organics, LLC, Organics Management LLC, Cocoawell, LLC, Fembody, LLC, Reserve Life Nutrition, L.L.C., Innovita Specialty Distribution, LLC, Joie Essance, LLC, and Midcap Funding X Trust.

     

10.168

 

Agreement of Lease, dated June 2, 2017, between Carolyn Holdings, LLC and Twinlab Consolidated Holdings, Inc.

     

10.169

 

Rider to the Lease, dated June 2, 2017, by and between Carolyn Holdings, LLC and Twinlab Consolidated Holdings, Inc.

     

10.170

 

Landlord’s Agreement, dated June 2, 2017, by and among Carolyn Holdings LLC, Twinlab Consolidated Holdings, Inc. and Midcap Funding X Trust.

 

 

 8

Exhibit 10.165

 

THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT DATED AS OF JUNE 2, 2017 IN FAVOR OF MIDCAP FUNDING X TRUST, A DELAWARE STATUTORY TRUST, AS ADMINISTRATIVE AGENT, WHICH SUBORDINATION AGREEMENT (AS MAY BE AMENDED, MODIFIED, SUPPLEMENTED AND/OR RESTATED FROM TIME TO TIME IN ACCORDANCE WITH ITS TERMS) IS INCORPORATED HEREIN BY REFERENCE.

 

SETTLEMENT AGREEMENT

 

SETTLEMENT AGREEMENT, dated June 2, 2017 (this “ Agreement ”), by and among TWINLAB CONSOLIDATION CORPORATION, a Delaware corporation (“ Twinlab ”), TWINLAB CONSOLIDATED HOLDINGS, INC., a Nevada corporation (“ Twinlab Consolidated ” or “ Company ”), NUTRASCIENCE LABS, INC., a Delaware corporation (“ NSL ” and together with Twinlab and Twinlab Consolidated, the “ Twinlab Parties ”), 2014 HUNTINGTON HOLDINGS, LLC, a Delaware limited liability company (“ 2014 Huntington ”), CAROLYN HOLDINGS, LLC, a New York limited liability company (“ Carolyn Holdings ”), NCL HOLDING COMPANY, LLC (f/k/a/ NUTRICAP LABS, LLC), a New York limited liability company (“ NC ”), and VITACAP LABS, LLC, a New York limited liability company (“ Vita ” and together with 2014 Huntington, Carolyn Holdings and NC, the “ Huntington Parties ”). Each of the Twinlab Parties and the Huntington Parties are referred to herein individually as a “ Party ” and, collectively, as the “ Parties .”

 

W I T N E S S E T H :

 

WHEREAS, Twinlab and 2014 Huntington entered into that certain Securities Purchase Agreement (the “ SPA ”), dated as of August 1, 2014, pursuant to which, among other things, Twinlab sold to 2014 Huntington, and 2014 Huntington purchased from Twinlab, 1,528,384 shares (the “ Twinlab Shares ”) of common stock, par value $0.0001 per share), of Twinlab; and

 

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of September 4, 2014, by and among Twinlab, TCC Merger Co. and Twinlab Consolidated, TCC Merger Co., a wholly-owned subsidiary of Twinlab Consolidated, merged with and into Twinlab (the “ Merger ”) and, as a result of the Merger, (i) Twinlab became a wholly-owned subsidiary of Twinlab Consolidated, (ii) the Twinlab Shares were converted into an equal number of shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Twinlab Consolidated (the “ Twinlab Consolidated Shares ”) and (iii) Twinlab Consolidated became responsible for the obligations of Twinlab under the SPA; and

 

WHEREAS, Section 4.8 of the SPA obligates Twinlab Consolidated to make a cash payment to 2014 Huntington if, among other things, the sixty (60) day volume weighted average stock price of the Common Stock immediately prior to the eighteen (18) month anniversary of the Closing (as defined in the SPA) is less than $2.29 per share; and

 

WHEREAS, the sixty (60) day volume weighted average stock price of the Common Stock immediately prior to the eighteen (18) month anniversary of the Closing was less than $2.29 per share and, based on the formula set forth in Section 4.8 of the SPA, resulted in Twinlab Consolidated having to make a cash payment to 2014 Huntington in the aggregate amount of $3,200,000 (the “ Section 4.8 Obligation ”); and

 

 
 

 

 

WHEREAS, Twinlab Consolidated and 2014 Huntington desire to settle the Section 4.8 Obligation, and the Parties desires to address and resolve certain other matters between them, in each case, on the terms and conditions set forth in this Agreement; and

 

WHEREAS, in connection with the settlement of the Section 4.8 Obligation, it is contemplated that (i) Twinlab Consolidated shall issue to 2014 Huntington an unsecured promissory note (the “ Note ”) in the aggregate principal amount of Three Million Two Hundred Thousand Dollars ($3,200,000), which Note shall be in the form of Exhibit A attached hereto, (ii) 2014 Huntington shall return seven hundred seventy eight thousand three hundred eighty five (778,385) Twinlab Consolidated Shares (the “ Subject Shares ”) to Twinlab Consolidated to be held in escrow on the terms and conditions set forth herein, (iii) Twinlab Consolidated shall provide certain piggyback registration rights to 2014 Huntington in respect of the remaining seven hundred forty nine thousand nine hundred ninety nine (749,999) Twinlab Consolidated Shares (the “ Remaining Shares ”) held by 2014 Huntington and the Subject Shares and (iv) Carolyn Holdings and Twinlab Consolidated shall enter into a four (4) year lease (the “ Lease ”) for the premises located at 70 Carolyn Boulevard, Farmingdale, New York, which Lease shall be in the form of Exhibit B attached hereto.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I

 

Settlement of Section 4.8 Obligation and Certain Other Matters

 

Section 1.1.       Settlement of Section 4.8 Obligation. Effective as of the Effective Date (as defined in Section 1.4), the Section 4.8 Obligation is hereby discharged in its entirety, and neither Twinlab nor Twinlab Consolidated shall have any further obligation to 2014 Huntington or any other Person (as defined below) under, or in respect of, Section 4.8 of the SPA. Effective as of the Effective Date, and in consideration for the discharge of the Section 4.8 Obligation, Twinlab Consolidated shall issue and deliver to 2014 Huntington the Note. Effective as of the Effective Date, and in consideration for the issuance and delivery by Twinlab Consolidated of the Note, 2014 Huntington shall place the Subject Shares in escrow with Twinlab Consolidated, together with stock powers duly executed in blank or other instruments of transfer requested by Twinlab Consolidated (as the Twinlab Consolidated Shares are set forth on one stock certificate, (i) 2014 Huntington shall deliver such stock certificate to Twinlab Consolidated on the Effective Date, (ii) Twinlab Consolidated shall promptly thereafter split such stock certificate into two (2) stock certificates, with one stock certificate being in the amount of the Subject Shares and the other stock certificate being in the amount of the Remaining Shares and (iii) Twinlab Consolidated shall hold the stock certificate in the amount of the Subject Shares in escrow and shall return to Twinlab Consolidated the stock certificate in the amount of the Remaining Shares). If the Note is paid off, in full, on or prior to August 14, 2017, the Subject Shares shall automatically be released from escrow, and transferred and assigned, to Twinlab Consolidated for no further consideration. If the Note remains outstanding on August 15, 2017, Twinlab Consolidated shall have the right, but not the obligation, to pay One Hundred Forty Thousand Dollars ($140,000)(the “ Twinlab Option Price ”) to 2014 Huntingon to purchase seven hundred sixty four thousand one hundred ninety two (764,192) of the Subject Shares (the “ Twinlab Purchase Option ”). Twinlab Consolidated shall be required to exercise the Twinlab Purchase Option and pay the Twinlab Option Price to 2014 Huntington no later than August 22, 2017 and, upon such timely exercise and payment by Twinlab Consolidated, seven hundred sixty four thousand one hundred ninety two (764,192) of the Subject Shares shall be released from escrow and transferred and assigned to the Company. If the Note remains outstanding on August 15, 2017 and Twinlab Consolidated does not timely exercise the Twinlab Purchase Option and pay the Twinlab Option Price, the Subject Shares shall be returned from escrow to 2014 Huntington and shall cease to be subject to repurchase by Twinlab Consolidated. For purposes of this Agreement, the term “ Person ” means any individual, corporation, partnership, limited liability company, joint venture, governmental agency or instrumentality, or any other entity.

 

 
-2-

 

 

Section 1.2.       Piggyback Registration Rights .

 

(a)     For purposes of this Agreement, the term “ Registrable Securities ” means the Remaining Shares and the Subject Shares held by 2014 Huntington; provided, that, the (i) Remaining Shares and the Subject Shares shall cease to constitute Registrable Securities at such time as they are freely transferable without volume restrictions pursuant to Rule 144 under the Securities Act of 1933, as amended (the “ Act ”) and (ii) Subject Shares shall cease to constitute Registrable Securities if such Subject Shares are returned to the Company for cancellation in accordance with Section 1.1 or with respect to any Subject Shares purchased by the Company upon exercise of the Twinlab Purchase Option.

 

(b)     If Twinlab Consolidated, at any time on or after the Effective Date, proposes to register any of its securities under the Act (other than in connection with a registration on Form S-4 or S-8 or any successor forms) whether for its own account or for the account of any holder or holders of its shares (any shares of such holder or holders (but not those of the Company) with respect to any registration are referred to herein as, “ Other Shares ”), Twinlab Consolidated shall each such time give prompt (but not less than fifteen (15) days prior to the anticipated effectiveness thereof) written notice to 2014 Huntington of its intention to do so. Upon the written request of 2014 Huntington made within ten (10) days after the receipt of any such notice (which request shall specify the Registrable Securities intended to be disposed of by 2014 Huntington), except as set forth in Section 1.2(c) below, Twinlab Consolidated will use its commercially reasonable efforts to effect the registration under the Act of all of the Registrable Securities which Twinlab Consolidated has been so requested to register by 2014 Huntington, by inclusion of such Registrable Securities in the registration statement which covers the securities which Twinlab Consolidated proposes to register; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, Twinlab Consolidated shall determine for any reason in its sole discretion either to not register, to delay or to withdraw registration of such securities, Twinlab Consolidated may, at its election, give written notice of such determination to 2014 Huntington and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration, (ii) in the case of a determination to delay registration, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities (including the Other Shares) and (iii) in the case of a determination to withdraw registration, shall be permitted to withdraw registration. Upon such withdrawal, the rights under this Section 1.2 shall continue in full force and effect.

 

 
-3-

 

   

(c)     If Twinlab Consolidated at any time proposes to register any of its securities under the Act as contemplated by this Section 1.2 and such securities are to be distributed by or through one or more underwriters, Twinlab Consolidated shall, if requested by 2014 Huntington, use its commercially reasonable efforts to arrange for such underwriters to include all the Registrable Securities requested to be offered and sold by 2014 Huntington among the securities to be distributed by such underwriters, provided that if the managing underwriter of such underwritten offering shall inform Twinlab Consolidated of its belief that inclusion in such distribution of all or a specified number of such securities proposed to be distributed by such underwriters would interfere with the successful marketing of the securities being distributed by such underwriters, then Twinlab Consolidated may, upon written notice to 2014 Huntington and holders of Other Shares, reduce pro rata in accordance with the number of shares of Common Stock desired to be included in such registration (if and to the extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities and Other Shares (but not the shares of Common Stock to be included in such registration for the account of Twinlab Consolidated) the registration of which shall have been requested by 2014 Huntington and each holder of Other Shares.

 

(d)     In connection with any registration of Registrable Securities pursuant to Section 1.2(b), Twinlab Consolidated shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto Twinlab Consolidated shall:

 

(i)     prepare and file with the Securities and Exchange Commission (“ SEC ”) a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective;

 

(ii)     notify 2014 Huntington of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to (1) keep such registration statement effective and the prospectus included therein usable for a period commencing on the date that such registration statement is initially declared effective by the SEC and ending on the date when all Registrable Securities covered by such registration statement have been sold pursuant to the registration statement or cease to be Registrable Securities, and (2) comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;

 

 
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(iii)     furnish to 2014 Huntington such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as 2014 Huntington may reasonably request in order to facilitate the disposition of the Registrable Securities owned by 2014 Huntington;

 

(iv)     use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as 2014 Huntington may reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable 2014 Huntington to consummate the disposition in such jurisdictions; provided , however , that Twinlab Consolidated shall not be required to: (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph; (ii) subject itself to taxation in any such jurisdiction; or (iii) consent to general service of process in any such jurisdiction;

 

(v)     notify 2014 Huntington, at any time when a prospectus relating thereto is required to be delivered under the Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances in which they are made, not materially misleading;

 

(vi)     in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, Twinlab Consolidated shall use its commercially reasonable efforts to promptly to obtain the withdrawal of such order; and

 

(vii)     use its commercially reasonable efforts to cause any Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable 2014 Huntington to consummate the disposition of such Registrable Securities.

 

(e) Twinlab Consolidated shall pay all Registration Expenses relating to the registration obligations set forth in this Section 1.2. For purposes of this Agreement, the term “ Registration Expenses ” means: (a) all registration, filing and FINRA fees, (b) all reasonable fees and expenses of complying with securities or blue sky laws, (c) all word processing, duplicating and printing expenses and (d) the fees and disbursements of counsel for Twinlab Consolidated and of its independent public accountants, including the expenses of any special audits or “cold comfort” letters required by or incident to such performance and compliance.

 

 
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(f) If 2014 Huntington desires to include Registrable Securities in any registration, 2014 Huntington shall furnish to Twinlab Consolidated such information as Twinlab Consolidated may reasonably request in writing to enable Twinlab Consolidated to comply with the provisions hereof in connection with any registration referred to in this Agreement.

 

Section 1.3.      Termination of TSA and Related Agreements. NC hereby rescinds the Notice of Termination, dated April 14, 2017, that it delivered to NSL. The Parties acknowledge and agree that the Second Transition Services and License Agreement, made and entered into as of August 12, 2015 (the “ TSA ”), by and among NSL, NC, Vita and Carolyn Holdings is terminated and of no further force and effect, and no Party has any obligations or liabilities to any other Party arising under, or relating to, the TSA or its termination (including, without limitation, none of the Twinlab Parties have any obligations or liabilities under Section 3(i) of the TSA, including any per diem amounts referenced in Section 3(i)(b) of the TSA). Effective as of the Effective Date, each of the following agreements is hereby terminated and of no further force and effect: (i) that certain Landlord’s Agreement, dated as of March 1, 2016, by and among Carolyn Holdings, NC, NSL and Midcap Funding X Trust; and (ii) that certain Licensor’s Agreement, dated as of March 1, 2016, by and among NC, NSL and Midcap Funding X Trust. For the avoidance of doubt, the parties hereby confirm and acknowledge that Carolyn Holdings, Twinlab Consolidated and Midcap Funding X Trust have entered into that certain Landlord’s Agreement dated as of the date hereof (as the same has been and may hereafter be amended, restated, supplemented or otherwise modified from time to time, the “ Landlord’s Agreement ”), which Landlord’s Agreement remains in full force and effect in accordance with its terms and that nothing in this Agreement is intended or shall be deemed to amend or modify any provision of the Landlord’s Agreement.

 

Section 1.4.      Effective Date . This Agreement and the transactions contemplated hereby shall be effective on the date (the “ Effective Date ”) that the conditions set forth in Article VI have been satisfied.

 

ARTICLE II

 

Representations and Warranties of the Twinlab Parties

 

The Twinlab Parties represent and warrant to the Huntington Parties as of the date hereof and as of the Effective Date as follows:

 

Section 2.1. Capacity and Binding Agreement.    Each of the Twinlab Parties has the power and authority to execute and deliver this Agreement (and, in the case of Twinlab Consolidated, to issue and deliver the Note) and any other documents to be executed and delivered by it as specified in Article V and to perform its obligations hereunder and thereunder. This Agreement has been, and each other agreement or instrument to be executed and delivered by such Twinlab Party as specified herein will be, duly authorized, executed and delivered by each of the Twinlab Parties and constitutes a valid and binding agreement of the Twinlab Parties, enforceable against the Twinlab Parties in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.

 

 
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Section 2.2. Non-contravention . Neither the execution and delivery of this Agreement by the Twinlab Parties or any other agreement or instrument referenced herein to be executed and delivered by the Twinlab Parties nor the performance by the Twinlab Parties of their respective obligations hereunder and thereunder will: (i) contravene any provision contained in its organizational and other governing documents; or (ii) violate or result in a material breach (with or without the lapse of time, the giving of notice or both) of or constitute a material default under (A) any contract or agreement to which the Twinlab Parties are a party or (B) any judgment, order, decree, law, rule or regulation or other restriction of any governmental authority.

 

Section 2.3. No Consents . No notice to, filing with, or authorization, registration, consent or approval of any governmental authority or other Person is necessary for the execution, delivery or performance by the Twinlab Parties of this Agreement or any other agreement or instrument to be executed by any of the Twinlab Parties as specified in Article V or the consummation of the transactions contemplated hereby or thereby, other than those consents or approvals which have been obtained and are in full force and effect or those required to be made under applicable law.

 

 

ARTICLE III

 

Representations and Warranties of the Huntington Parties

 

The Huntington Parties represent and warrant to the Twinlab Parties as of the date hereof and as of the Effective Date as follows:

 

Section 3.1. Capacity and Binding Agreement . Each of the Huntington Parties has the power and authority to execute and deliver this Agreement and any other documents to be executed and delivered by it as specified in Article V and to perform its obligations hereunder and thereunder. This Agreement has been, and each other agreement or instrument to be executed and delivered by such Huntington Party as specified herein will be, duly authorized, executed and delivered by each of the Huntington Parties and constitutes a valid and binding agreement of the Huntington Parties, enforceable against the Huntington Parties in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.

 

Section 3.2. Non-contravention . Neither the execution and delivery of this Agreement by the Huntington Parties or any other agreement or instrument referenced herein to be executed and delivered by the Huntington Parties nor the performance by the Huntington Parties of their respective obligations hereunder and thereunder will: (i) contravene any provision contained in its organizational and other governing documents; or (ii) violate or result in a material breach (with or without the lapse of time, the giving of notice or both) of or constitute a material default under (A) any contract or agreement to which the Huntington Parties are a party or (B) any judgment, order, decree, law, rule or regulation or other restriction of any governmental authority.

 

 
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Section 3.3.       No Consents . No notice to, filing with, or authorization, registration, consent or approval of any governmental authority or other Person is necessary for the execution, delivery or performance by the Huntington Parties of this Agreement or any other agreement or instrument to be executed by any of the Huntington Parties as specified in Article V or the consummation of the transactions contemplated hereby or thereby, other than those consents or approvals which have been obtained and are in full force and effect or those required to be made under applicable law.

 

Section 3.4.       Subject Shares . 2014 Huntington owns the Subject Shares free and clear of all liens, claims and encumbrances.

 

ARTICLE IV

 

Releases

 

Section 4.1.      Twinlab Party Release . In consideration of the mutual promises and consideration set forth in this Agreement, effective as of the Effective Date, the Twinlab Parties hereby release, acquit, and forever discharge the Huntington Parties and their affiliates, subsidiaries, parents, related companies, officers, directors, employees, agents, representatives, predecessors and successors in interest and assigns, past and present (collectively, the “ Huntington Released Parties ”), from any and all past, present, and future claims, actions, causes of action, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, judgments, executions, losses, liabilities, demands and obligations of whatsoever character, nature, kind, or description, whether in law or equity, and whether known or unknown, which the Twinlab Parties ever had, now have, or may in the future have against the Huntington Released Parties for, upon, or by reason of any matter, cause, or thing whatsoever occurring on or before the Effective Date of this Agreement (including under the SPA and/or the TSA). It is understood that this is a full and complete resolution of claims and the giving of a full and complete general release with respect to the matters released herein . Each Twinlab Party hereby agrees and covenants not to commence any litigation or other legal or administrative proceeding against the Huntington Released Parties, whether in law or in equity, relating to the matters released herein, in each case with respect to matters occurring on or before the Effective Date of this Agreement. Notwithstanding the foregoing, this release shall not apply to the following (“ Twinlab Excluded Matters ”) and the Twinlab Excluded Matters are expressly excluded from this release: (i) any claims of the Twinlab Parties relating to any breach of this Agreement by any of the Huntington Parties or any other agreement or instrument referenced in Article V; and/or (ii) any matters occurring following the Effective Date. The Twinlab Parties hereby represent and warrant that they have not assigned any claims being released herby to any Person and will not assign any such claims prior to the Effective Date.

 

 
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Section 4.2.      Huntington Party Release . In consideration of the mutual promises and consideration set forth in this Agreement, effective as of the Effective Date, the Huntington Parties hereby release, acquit, and forever discharge the Twinlab Parties and their affiliates, subsidiaries, parents, related companies, officers, directors, employees, agents, representatives, predecessors and successors in interest and assigns, past and present (collectively, the “ Twinlab Released Parties ”), from any and all past, present, and future claims, actions, causes of action, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, judgments, executions, losses, liabilities, demands and obligations of whatsoever character, nature, kind, or description, whether in law or equity, and whether known or unknown, which the Huntington Parties ever had, now have, or may in the future have against the Twinlab Released Parties for, upon, or by reason of any matter, cause, or thing whatsoever occurring on or before the Effective Date of this Agreement (including (i) the Section 4.8 Obligation and any other obligations or liabilities under the SPA and/or (ii) under the TSA, including any per diem use and occupancy charges under Section 3(i) of the TSA). It is understood that this is a full and complete resolution of claims and the giving of a full and complete general release with respect to the matters released herein . Each Huntington Party hereby agrees and covenants not to commence any litigation or other legal or administrative proceeding against the Twinlab Released Parties, whether in law or in equity, relating to the matters released herein, in each case with respect to matters occurring on or before the Effective Date of this Agreement. Notwithstanding the foregoing, this release shall not apply to the following (“ Huntington Excluded Matters ”) and the Huntington Excluded Matters are expressly excluded from this release: (i) any claims of the Huntington Parties relating to any breach of this Agreement by any of the Twinlab Parties or any other agreement or instrument referenced in Article V; and/or (ii) any matters occurring following the Effective Date. The Huntington Parties hereby represent and warrant that they have not assigned any claims being released herby to any Person and will not assign any such claims prior to the Effective Date.

 

ARTICLE V

 

Conditions to Effective Date

 

Section 5.1. Conditions to the Effective Date. This Agreement shall be effective on the satisfaction of each of the following conditions:

 

(a)     Twinlab Consolidated shall have issued and delivered the Note to 2014 Huntington and shall have paid Fifty Thousand Dollars ($50,000) to 2014 Huntington to be applied towards interest accrued on the Note from August 6, 2016;

 

(b)     2014 Huntington shall have delivered to Twinlab Consolidated the stock certificate representing the Subject Shares to be held in escrow in accordance with Section 1.1 of this Agreement, together with a stock power duly endorsed in blank or other instruments of transfer requested by Twinlab Consolidated; and

 

(c)     Carolyn Holdings and Twinlab Consolidated shall have entered into the Lease.

 

 
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ARTICLE VI

 

Miscellaneous

 

Section 6.1. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be delivered personally, by facsimile or sent by certified, registered or express air mail, postage prepaid, and shall be deemed given when so delivered personally, or by facsimile, or if mailed, five (5) days after the date of mailing, as follows (or to such other address as a Party shall notify the other Party from time to time):

 

If to the Twinlab Parties:                     4800 T-Rex Avenue, Suite 305

Boca Raton, FL 33431

Attention: Al Gever

Facsimile: (561) 443-2821

 

with a copy to:

 

Greenberg Traurig, P.A.

401 East Las Olas Boulevard, Suite 2000

Fort Lauderdale, FL 33301

Attention: Bruce March, Esq.

Facsimile: (954) 759-5527

 

If to the Huntington Parties:              2014 Huntington Holdings, LLC

c/o Jonathan Greenhut

43 Hunting Hollow Court

Dix Hills, NY 11746

Email: jon@trueearthhealth.com

 

with a copy to:

 

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention: Christopher S. Auguste, Esq.

Facsimile: (212) 715-8277

 

Section 6.2. Expenses . Except as set forth in the next sentence, each Party shall bear its own fees and expenses incurred in connection with the negotiation, preparation and execution of this Agreement and any documents being executed in connection herewith. Twinlab Consolidated shall pay Thirty Thousand Dollars ($30,000) of the documented legal fees of Huntington in connection with the negotiation and preparation of this Agreement and the other agreements referred to herein.

 

 
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Section 6.3. Governing Law; Consent to Jurisdiction. This Agreement (and all matters arising, directly or indirectly, from it) shall be governed by, and construed in accordance with, the internal laws of the State of New York, without reference to the conflicts of law principles thereof. Each of the Parties irrevocably submits to the exclusive jurisdiction of the state and federal courts of New York, New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each Party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each Party irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

Section 6.4. Assignment; Successors and Assigns; No Third Party Rights. No Party shall assign any right or obligation arising pursuant to this Agreement without first obtaining the written consent of the other Party, and any attempted assignment shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns and legal representatives. This Agreement shall be for the sole benefit of the Parties and their respective successors, assigns and legal representatives and is not intended, nor shall be construed, to give any Person, other than the Parties and their respective successors, assigns and legal representatives, any legal or equitable right, remedy or claim hereunder.

 

Section 6.5. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original agreement, but all of which together shall constitute one and the same instrument.

 

Section 6.6. Titles and Headings. The headings in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.

 

Section 6.7. Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement among the parties with respect to the matters covered hereby and supersedes all previous written, oral or implied understandings among them with respect to such matters.

 

Section 6.8. Amendment and Modification . This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party to this Agreement.

 

Section 6.9.      Waiver . Any of the terms or conditions of this Agreement may be waived at any time by the Party entitled to the benefit thereof, but only by a writing signed by the Party waiving such terms or conditions.

 

 
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Section 6.10. Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. If any court determines that any covenant, or any part of any covenant is invalid or unenforceable, such covenant shall be enforced to the full extent permitted by such court, and all other covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portions.

 

 
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IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be duly executed as of the day and year first above written.

 

 

 

TWINLAB PARTIES:

 

TWINLAB CONSOLIDATION CORPORATION

 

 

 

By:   /s/ Alan S. Gever                                                                           
      Name: Alan S. Gever 

      Title: CFO / COO

 

 

TWINLAB CONSOLIDATED HOLDINGS INC.

 

 

 

By:    /s/ Alan S. Gever                                                                            
      Name:
Alan S. Gever

      Title: CFO / COO

 

 

NUTRASCIENCE LABS, INC.

 

 

 

By:    /s/ Alan S. Gever                                                                            
      Name:
Alan S. Gever

      Title: CFO / COO

 

 

HUNTINGTON PARTIES:

 

 

2014 HUNTINGTON HOLDINGS, LLC

 

 

By:  /s/ Jonathan Greenhut                                                                   
      Name: Jonathan Greenhut

      Title:

 

 
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CAROLYN HOLDINGS, LLC

 

 

By:    /s/ Jonathan Greenhut                                                                   
      Name:
Jonathan Greenhut

      Title: Managing Member

 

 

NCL HOLDING COMPANY, LLC

 

 

By:   /s/ Jonathan Greenhut                                                                    
      Name:
Jonathan Greenhut

      Title: Managing Member

 

VITACAP LABS, LLC

 

 

By:   /s/ Jonathan Greenhut                                                                    
      Name:
Jonathan Greenhut

      Title: Managing Member

 

 

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Exhibit 10.166

 

THIS NOTE IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT DATED AS OF JUNE 2, 2017 IN FAVOR OF MIDCAP FUNDING X TRUST, A DELAWARE STATUTORY TRUST, AS ADMINISTRATIVE AGENT, WHICH SUBORDINATION AGREEMENT (AS MAY BE AMENDED, MODIFIED, SUPPLEMENTED AND/OR RESTATED FROM TIME TO TIME IN ACCORDANCE WITH ITS TERMS) IS INCORPORATED HEREIN BY REFERENCE.

 

 

 

UNSECURED PROMISSORY NOTE

 

$3,200,000

 June 2, 2017

     

FOR VALUE RECEIVED, TWINLAB CONSOLIDATED HOLDINGS, INC., a Nevada corporation (the “ Maker ”), hereby promises to pay to the order of 2014 HUNTINGTON HOLDINGS, LLC, a Delaware limited liability company (the “ Holder ”), the principal sum of Three Million Two Hundred Thousand Dollars ($3,200,000), together with interest on the unpaid principal balance hereof at the rate and at the times set forth herein. This Unsecured Promissory Note (this “ Note ”) is entered into and being delivered pursuant to that certain Settlement Agreement, dated as of June 2, 2017 (the “ Settlement Agreement ”), by and among Maker, the Holder and the other persons party thereto.

 

1.      Payment of Interest . Interest shall accrue on the unpaid principal balance of this Note at the rate of eight and one-half percent (8.5%) per annum (the “ Interest Rate ”)(calculated on the basis of a year consisting of 365 days) from August 6, 2016 (as if the date of issuance of this Note was August 6, 2016) through and including the date on which the entire principal balance hereof shall have been paid in full; provided, however, if this Note remains outstanding on August 15, 2017, then the Interest Rate, from and after August 15, 2017, shall be increased to ten percent (10%) per annum. As set forth in the Settlement Agreement, on the date hereof, Maker shall pay Fifty Thousand Dollars ($50,000) to Holder, which payment shall be applied to the accrued interest from August 6, 2016 through the date of issuance of this Note. Accrued and unpaid interest shall be payable monthly as follows: Maker shall pay Ten Thousand Dollars ($10,000) of the accrued and unpaid interest in cash on the last day of each calendar month (commencing with the calendar month ending June 30, 2017) and any accrued but unpaid interest in excess of Ten Thousand Dollars ($10,000) shall accrue and be payable on the Maturity Date (as defined in Section 2 below) (or such earlier date as this Note is prepaid, in full, by the Holder) (such interest being “ Additional Interest ”); provided, that, for avoidance of doubt, Additional Interest shall not be compounded into principal and Additional Interest shall not accrue further interest on interest.

 

2.      Payment of Principal . Subject to the provisions of Section 4 of this Note, the principal balance of this Note (and all accrued but unpaid interest) shall be due and payable on the earlier to occur of (y) June 2, 2019 or (z) the date this Note is accelerated by the Holder following the occurrence and continuance of an Event of Default (as defined in Section 7 below)(the earlier to occur of clauses (y) and (z), the “ Maturity Date ”).

 

 
 

 

 

3.        Manner of Payment . All sums payable under this Note shall be paid in lawful money of the United States of America and in immediately available funds. Payments shall be made to the Holder by wire transfer to such account as shall be specified by the Holder to the Maker. If any payment under this Note shall become due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day. For purposes of this Note, the term “ Business Day ” means a day other than a Saturday, Sunday or a legal holiday as recognized in the State of New York.

 

4.        Prepayment . The Maker shall have the right to prepay, at any time and from time to time, in any amount, the outstanding principal balance of this Note, without premium or penalty.      

 

5.        Default Interest . If this Note is accelerated following the occurrence of an Event of Default, interest shall accrue on the unpaid principal balance of this Note at the rate set forth in Section 1 of this Note plus two percent (2%) per annum.

 

6.       [Reserved]

 

7.        Events of Default . The occurrence of any of the following events shall constitute an “ Event of Default ” under this Note:

 

(i)     failure to pay when due any payment of principal or interest on or before the date such payment is due and the continuation of such failure for a period of ten (10) calendar days following the delivery of written notice thereof to Maker (it being acknowledged that any monthly interest in excess of Ten Thousand Dollars ($10,000) shall accrue and be payable on the Maturity Date); for the avoidance of doubt, if Maker makes payment of the amount due within such ten (10) calendar days, no Event of Default shall be deemed to have occurred;

 

(ii)     one or more judgments or orders, either individually or in the aggregate, for the payment of money in excess of $250,000 shall be entered against the Maker and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from entry thereof;

 

(iii)     the Maker defaults under any loan agreement, lease, mortgage or similar instrument under which there is issued or by which there is secured or evidenced by any indebtedness, whether now existing or hereafter created, if that default results in the acceleration of in excess of $250,000 of such indebtedness prior to its stated maturity;

 

(iv)     the Maker commences any case, proceeding or other action (y) under any existing or future Legal Requirement (as defined below) relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (z) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or substantially all of its assets, or the Maker makes a general assignment for the benefit of its creditors;

 

 
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(v)     there is commenced against the Maker any case, proceeding or other action of a nature referred to in paragraph (iv) of Section 7 above which (y) results in the entry of an order for relief or any such adjudication or appointment or (z) remains undismissed, undischarged or unbonded for a period of ninety (90) days;

 

(vi)     the Maker is generally not, or shall be unable to, or admits in writing its inability to, pay its debts as they become due; or

 

(vii)      there is commenced against the Maker any case, proceeding or other action seeking issuance of a warrant of attachment, execution or similar process against all or substantially all of its assets which results in the entry of an order for any such relief which has not been vacated, discharged, or stayed or bonded pending appeal within thirty (30) days from the entry thereof.

 

For purposes of this Note, the term “ Legal Requirement ” means any federal or state law, statute, constitution, rule, regulation or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any federal or state government.

 

8.       Remedies . Upon the occurrence of an Event of Default, all amounts due under this Note, including the unpaid balance of principal and interest hereof, shall, at the option of the Holder (but automatically with respect to an Event of Default described in paragraphs (ii) or (iii) of Section 7 of this Note) upon written notice to the Maker, become immediately due and payable, and the Holder may exercise any of its rights and remedies granted herein, under applicable Legal Requirement or that the Holder may otherwise have against the Maker.

 

9.      No Usury . In no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof or otherwise, shall the amount paid or agreed to be paid to the Holder for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permissible under any law which a court of competent jurisdiction may deem applicable hereto; and, in the event of any such payment inadvertently paid by the Maker or inadvertently received by the Holder, such excess sum shall be, at the Maker’s option, returned to the Maker forthwith or credited as a payment of principal, but shall not be applied to the payment of interest. It is the intent hereof that the Maker not pay or contract to pay, and that the Holder not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by the Maker under any applicable law.

 

10.      No Assignment by Holder . This Note (and Holder’s rights hereunder) may be assigned by Holder only with the express prior written consent of Maker.

 

 
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11.       Miscellaneous .

 

(i)      This Note may be amended or modified only by an instrument in writing signed by the Maker and the Holder.

 

(ii)     All payments under this Note shall be applied first to accrued interest and thereafter to principal.

 

(iii)     Presentment, demand, protest and other notice of any kind are hereby expressly waived by the Maker.

 

(iv)     No delay or omission on the part of the Holder in the exercise of any right or remedy hereunder shall operate as a waiver thereof, and no partial exercise of any right or remedy precludes other or further exercise thereof or the exercise of any other rights or remedy.

 

(v)      If any provision of this Note is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Holder in order to carry out the purposes of this Note as nearly as may be possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

 

(vi)     This Note shall be binding upon the Maker and its successors and assigns.

 

(vii)    EACH OF THE MAKER AND THE HOLDER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE MAKER AND THE HOLDER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE MAKER AND THE HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

(viii)   This Note shall be construed in accordance with, and be governed by, the internal laws of the State of New York, without giving effect to the choice of law principles thereof.

 

(x)      All notices or other communications required or permitted hereunder shall be in writing and shall be delivered personally, by facsimile, by nationally recognized overnight delivery service, or sent by certified, registered or express air mail, postage prepaid, and shall be deemed given when so delivered personally, or by facsimile or email upon the date the transmission is received, or the next day if delivered by nationally recognized overnight delivery service, or if mailed, two (2) days after the date of mailing, as follows:

 

 
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If to the Maker:

 

4800 T-Rex Avenue, Suite 305

Boca Raton, FL 33431

Attention: Al Gever

Facsimile: (561) 443-2821

Email: agever@twinlab.com

 

with a copy to (which shall not constitute notice):

 

Greenberg Traurig, P.A.

401 E. Las Olas Boulevard, Suite 2000

Fort Lauderdale, FL 33301

Attention: Bruce I. March, Esq.

Facsimile: (954) 765-1477

Email: marchb@gtlaw.com

 

If to the Holder:

 

2014 Huntington Holdings, LLC

c/o Jonathan Greenhut

43 Hunting Hollow Court

Dix Hills, NY 11746

Email: jon@trueearthhealth.com

 

with a copy to (which shall not constitute notice):

 

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention: Christopher S. Auguste, Esq.

Facsimile: (212) 715-8277

Email: cauguste@kramerlevin.com

 

or to such other address as any party hereto shall notify the other parties hereto (as provided above) from time to time.

 

[ signature page follows ]

 

 
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IN WITNESS WHEREOF, the Maker has caused this Note to be executed by its officer thereunto duly authorized, as of the date first written above.

 

 

TWINLAB CONSOLIDATED HOLDINGS, INC.

 

 

By:   /s/ Alan S. Gever                                             

Name: Alan S. Gever

Title: CFO / COO

 

 

   

Acknowledged and Agreed to by:

 

2014 HUNTINGTON HOLDINGS, LLC

 

 

By: /s/ Jonathan Greenhut                     

Name: Jonathan Greenhut

Title: Managing Member

 

 

 

6

Exhibit 10.167

 

SUBORDINATION AGREEMENT

 

THIS SUBORDINATION AGREEMENT (this “ Agreement ”) is entered into as of this 2 nd day of June, 2017, by and among 2014 HUNTINGTON HOLDINGS, LLC , a Delaware limited liability company (“ Subordinated Lender ”), TWINLAB CONSOLIDATED HOLDINGS, INC. , a Nevada corporation (“ TCHI ”), TWINLAB CONSOLIDATION CORPORATION , a Delaware corporation (“ TCC ”), TWINLAB HOLDINGS, INC. , a Michigan corporation, ISI BRANDS INC. , a Michigan corporation, TWINLAB CORPORATION , a Delaware corporation, NUTRASCIENCE LABS, INC. , a Delaware corporation (formerly known as TCC CM Subco I, Inc.) (“ Nutrascience Labs ”), and NUTRASCIENCE LABS IP CORPORATION , a Delaware corporation (formerly known as TCC CM Subco II, Inc.), ORGANIC HOLDINGS LLC , a Delaware limited liability company, RESERVE LIFE ORGANICS, LLC , a Delaware limited liability company, RESVITALE, LLC , a Delaware limited liability company, RE-BODY, LLC , a Delaware limited liability company, INNOVITAMIN ORGANICS, LLC , a Delaware limited liability company, ORGANICS MANAGEMENT LLC , a Delaware limited liability company, COCOAWELL, LLC , a Delaware limited liability company, FEMBODY, LLC , a Delaware limited liability company, RESERVE LIFE NUTRITION, L.L.C. , a Delaware limited liability company, INNOVITA SPECIALTY DISTRIBUTION, LLC , a Delaware limited liability company, and JOIE ESSANCE, LLC , a Delaware limited liability company (collectively, “ Borrower ”), and MIDCAP FUNDING X TRUST , a Delaware statutory trust, as successor-by-assignment from MidCap Financial Trust, as Agent for the financial institutions or other entities from time to time parties to the Senior Loan Agreement (as hereinafter defined) (acting in such capacity, “ Agent ”), and as a Lender, or such then present holder or holders of the Senior Loan (as hereinafter defined) as may from time to time exist (the “ Lenders ,” and collectively with the Agent, the “ Senior Lenders ”).

 

RECITALS

 

A.       Borrower and Senior Lenders have entered into a Credit and Security Agreement dated as of January 22, 2015 (as the same may be amended, supplemented or otherwise modified from time to time, the “ Senior Loan Agreement ”) pursuant to which, among other things, Senior Lenders have agreed, subject to the terms and conditions set forth in the Senior Loan Agreement, to make certain loans and financial accommodations to Borrower and the other Credit Parties. All of Borrower’s obligations to Senior Lenders under the Senior Loan Agreement and the other Senior Loan Documents (as hereinafter defined) are secured by liens on and security interests in substantially all of the now existing and hereafter acquired personal property of Borrower (all collateral, real and personal, now or hereafter encumbered by the lien of any Senior Loan Document is herein referred to collectively as the “ Collateral ”). Borrower and any other Credit Party (as defined in the Senior Loan Agreement) may each be referred to herein as a “ Credit Party ” and collectively as “ Credit Parties ”. All other capitalized terms used but not defined herein shall have the meanings set forth in the Senior Loan Agreement.

 

B.      The Subordinated Lender is a shareholder in Borrower. TCHI has issued that certain Unsecured Promissory Note to Subordinated Lender in the original principal amount of $3,200,000 attached hereto as EXHIBIT A (the “ Subordinated Note ”).

 

C.      As an inducement to and as one of the conditions precedent to the agreement of Agent and Senior Lenders to consent to the transactions contemplated by the Subordinated Note, Agent and Senior Lenders have required the execution and delivery of this Agreement by Subordinated Lender and Borrower in order to set forth the relative rights and priorities of Senior Lenders and Subordinated Lender under the Senior Loan Documents and the Subordinated Loan Documents (as hereinafter defined).

 

 
 

 

 

AGREEMENT

 

NOW, THEREFORE, in order to induce Senior Lenders to consummate the transactions contemplated by the Senior Loan Agreement, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby covenant and agree as follows:

 

1.             Definitions. The following terms shall have the following meanings in this Agreement:

 

Bankruptcy Code means Chapter 11 of Title 11 of the United States Code, as amended from time to time, and any successor statute and all rules and regulations promulgated thereunder.

 

Distribution ” means, with respect to any indebtedness, (a) any payment or distribution by any Person of cash, securities or other property, by set-off or otherwise, on account of such indebtedness or obligation, (b) any redemption, purchase or other acquisition of such indebtedness or obligation by any Person, or (c) the granting of any lien or security interest to or for the benefit of the holders of such indebtedness or obligation in or upon any property of any Person.

 

Enforcement Action ” means (a) to take from or for the account of any Credit Party or any guarantor of the Subordinated Loans, by set-off or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by any Credit Party or any such guarantor with respect to the Subordinated Loan; (b) to sue for payment of, or to initiate or participate with others in any suit, action or proceeding against any Credit Party or any such guarantor to (i) enforce payment of or to collect the whole or any part of the Subordinated Loan, or (ii) commence judicial enforcement of any of the rights and remedies under the Subordinated Loan Documents or applicable law with respect to the Subordinated Loan; (c) to accelerate the Subordinated Loans; (d) to exercise any put option or to cause any Credit Party or any such guarantor to honor any redemption or mandatory prepayment obligation under any Subordinated Loan Document; (e) to notify account debtors or directly collect accounts receivable or other payment rights of any Credit Party or any such guarantor; (f) to commence, or join with any creditors other than the Agent in commencing any case or proceeding referred to a Proceeding, or (g) take any action under the provisions of any state or federal law, including, without limitation, the Uniform Commercial Code, or under any contract or agreement, to enforce, foreclose upon, take possession of or sell any property or assets of any Credit Party or any such guarantor including the Collateral.

 

Paid in Full ” or “ Payment in Full ” means, with respect to the Senior Loans, the full and indefeasible payment in cash and satisfaction in full of all of the obligations under the Senior Loan Documents, and the termination of all obligations of Agent and Senior Lenders under the Senior Loan Documents (including, without limitation, any commitment to lend), and the termination of the Senior Loan Documents.

 

 
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Permitted Subordinated Loan Payments means (a) payments of regularly scheduled payments of interest on the Subordinated Note, including, without limitation and for the avoidance of doubt, payment of Additional Interest (as defined in the Subordinated Note) that is scheduled to be paid on June 2, 2019, and the outstanding principal amount of the Subordinated Note at maturity, in each case due and payable on a non-accelerated basis in accordance with the terms of the Subordinated Note as in effect as of the date hereof, but only if true and correct copies of such Subordinated Loan Documents have been delivered to Agent, (b) $50,000 due under Section 5.1(a) and $30,000 due under Section 6.2 of that certain Settlement Agreement dated as of the date hereof by and among TCC, TCHI, Nutrascience Labs, Subordinated Lender, Carolyn Holdings, LLC, NCL Holding Company, LLC (f/k/a/ Nutricap Labs, LLC), and Vitacap Labs, LLC and (c) conversion of all or any part of the Subordinated Loans into common equity securities of the TCHI with no payments of cash or other compensation made to or for the account of Subordinated Lender as part of or as a result of such conversion.

 

Person means any natural person, corporation, general or limited partnership, limited liability company, firm, trust, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.

 

Proceeding ” means any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of a Person.

 

Senior Loans ” means all obligations, liabilities and indebtedness of every nature of any Credit Party from time to time owed to Senior Lenders under the Senior Loan Documents or otherwise, whether now existing or hereafter created, including, without limitation, the principal amount of all debts, claims, reimbursement obligations, and indebtedness, accrued and unpaid interest and all fees, costs, indemnities and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the filing of a Proceeding under the Bankruptcy Code, together with (a) any amendments, modifications, renewals or extensions thereof, and (b) any interest accruing thereon after the commencement of a Proceeding, without regard to whether or not such interest is an allowed claim.

 

Senior Loan Documents ” means any promissory note or other instruments evidencing the Senior Loan or the obligation to pay the Senior Loan, any guaranty with respect to the Senior Loan, any security agreement or other collateral document securing the Senior Loan (including, without limitation, the Senior Loan Agreement) and all other documents, agreements and instruments now existing or hereafter entered into evidencing or pertaining to all or any portion of the Senior Loan, together with any amendments, modifications, renewals or extensions thereof.

 

Subordinated Loans ” means all obligations, liabilities and indebtedness of every nature of any Credit Party from time to time owed to Subordinated Lender, whether now existing or hereafter created, including, without limitation, the principal amount of all debts, claims (including, without limitation, indemnification rights arising in Subordinated Lender’s capacity as a shareholder, officer, director, member and/or partner of any Credit Party and any right of Subordinated Lender to a return of any capital contributed to any Credit Party) and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the filing of a Proceeding under the Bankruptcy Code together with any amendments, modifications, renewals or extensions thereof.

 

Subordinated Loan Documents ” means the Subordinated Note, any other promissory note or other instrument evidencing the Subordinated Loan or the obligation to pay the Subordinated Loan, any guaranty with respect to the Subordinated Loan, any security agreement or other collateral document securing the Subordinated Loan and all other documents, agreements and instruments now existing or hereafter entered into evidencing or pertaining to all or any portion of the Subordinated Loan.

 

 
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2.             Subordination.

 

2.1.      Subordination of Subordinated Loans to Senior Loans. Each Credit Party covenants and agrees, and Subordinated Lender likewise covenants and agrees, notwithstanding anything to the contrary contained in any of the Subordinated Loan Documents, that the payment of any and all of the Subordinated Loans shall be subordinate and subject in right and time of payment, to the extent and in the manner hereinafter set forth, to the Payment in Full of all Senior Loans. Each holder of the Senior Loans, whether now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to have acquired the Senior Loans in reliance upon the provisions contained in this Agreement. Except as otherwise permitted under subsection 2.2 below, all of the Senior Loan shall first be Paid in Full before any Distribution (other than a Permitted Subordinated Loan Payment), whether in cash, securities or other property, shall be made to Subordinated Lender on account of any Subordinated Loan.

 

2.2.      Subordinated Debt Payment Restrictions. Notwithstanding the provisions of subsection 2.1 hereinabove, Permitted Subordinated Loan Payments may be made by Borrower or accepted by Subordinated Lender, but only if, at the time of such payment, no default or event of default exists under the Senior Loan Documents and no default thereunder will be created by reason of such payment.

 

2.3.      Subordinated Loan Standstill. Until the Senior Loans are Paid in Full, Subordinated Lender shall not, without the prior written consent of Agent, take any Enforcement Action with respect to all or any portion of the Subordinated Loans.

 

2.4.       Incorrect Payments. If any Distribution on account of the Subordinated Loans not permitted to be made by any Credit Party or accepted by Subordinated Lender under this Agreement is so made by a Credit Party and received by Subordinated Lender, such Distribution shall not be commingled with any of the assets of Subordinated Lender, shall be held in trust by Subordinated Lender for the benefit of Senior Lenders, and shall be promptly paid over to Agent for the benefit of Senior Lenders for application in accordance with the Senior Loan Documents to the payment of the Senior Loans then remaining unpaid, until all of the Senior Loans are Paid in Full.

 

2.5.       Agreement Not to Contest; No Liens in Respect of the Subordinated Loans; Subordination of any Liens and Security Interests; Agreement to Release any Liens.

 

(a)     Each Credit Party acknowledges and agrees, and Subordinated Lender likewise acknowledges and agrees, that the Subordinated Loans are not secured by any lien on or security interest in any asset (including personal property and real property) of Credit Parties and shall not be secured by any lien on or security interest in any asset (including personal property and real property) of Credit Parties, whether now owned or hereafter acquired, until the Senior Loans are Paid in Full. No references herein to, or subordinations of, liens or security interest of Subordinated Lender in the Collateral shall imply or infer any limitation on the foregoing or any consent by Agent or Senior Lenders to such a lien or security interest.

 

 
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(b)     Without limiting the foregoing and solely for the avoidance of doubt in the event any lien arises, until the Senior Loans have been Paid in Full, all liens and security interests of Subordinated Lender in the Collateral, if any, shall be and hereby are subordinated for all purposes and in all respects to the liens and security interests of Senior Lenders in the Collateral, regardless of the time, manner or order of perfection of any such liens and security interests and regardless of any failure, whether intervening or continuing, of Senior Lenders’ liens to be perfected liens; provided, however , that each of the parties hereto acknowledges and agrees that the existence of any such lien or security interest of Subordinated Lender would constitute an automatic and immediate Event of Default under the Senior Loan Agreement and a breach of this Agreement.

 

(c)     Subordinated Lender agrees that it will not at any time contest the validity, perfection, priority or enforceability of the Senior Loans, the Senior Loan Documents, or the liens and security interests of Senior Lenders in the Collateral securing the Senior Loans.

 

(d)     In the event that Agent releases or agrees to release any of its liens or security interests in the Collateral in connection with the compromise or sale, transfer or other disposition thereof or any of the Collateral is sold or retained pursuant to a foreclosure or similar action, Subordinated Lender shall be deemed to have also, automatically and simultaneously, released its lien and security interests in such Collateral and Subordinated Lender shall (or shall cause its agent to) promptly execute and deliver to Agent such termination statements and releases as Agent shall reasonably request to effect the release of the liens and security interests of Subordinated Lender in such Collateral. All proceeds resulting from any such compromise or sale, transfer or other disposition shall be applied first to the Senior Loans until payment in full thereof, with the balance, if any, to the Subordinated Loans, or to any other entitled party. In furtherance of the foregoing, Subordinated Lender hereby waives (i) any right to notification of a disposition of any Collateral pursuant to Section 9-611 of the UCC, (ii) its right to send to Agent a notification of a claim against the Collateral pursuant to Section 9-621 of the UCC, and any right to receive a notice of any acceptance by Agent of Collateral in full or partial satisfaction of the Senior Loans (and Subordinated Lender is hereby deemed to have consented to any such acceptance in accordance with Section 9-620 of the UCC), (iii) the right to object to (or issue a notice of objection with respect to), the acceptance by Agent of Collateral in full or partial satisfaction of the Senior Loans pursuant to Sections 9-620 and 9-621 of the UCC, and (iv) any other matter that would be the subject of any notification covered by Sections 9-611, 9-620 or 9-621 of the UCC.

 

(e)     By the execution of this Agreement, Subordinated Lender hereby authorizes Agent to amend any financing statements filed by Subordinated Lender against Credit Parties as follows: “In accordance with a certain Subordination Agreement by and among the Secured Party, the Debtor and MidCap Funding X Trust (or any of its affiliates), as Agent, the Secured Party has subordinated any security interest or lien that Secured Party may have in any property of the Debtor to the security interest of MidCap Funding X Trust (or any of its affiliates), as Agent, in all assets of Debtor notwithstanding the respective dates of attachment or perfection of the security interest of the Secured Party and MidCap Funding X Trust (or any of its affiliates), as Agent.”

 

(f)     In furtherance of the foregoing, Subordinated Lender hereby irrevocably appoints Agent its attorney-in-fact, with full authority in the place and stead of Subordinated Lender and in the name of Subordinated Lender or otherwise, to execute and deliver any document or instrument which Subordinated Lender may be required to deliver pursuant to this subsection 2.5.

 

2.6.      Application of Proceeds from Sale or other Disposition of the Collateral. In the event of any sale, transfer or other disposition (including a casualty loss or taking through eminent domain) of the Collateral, the proceeds resulting therefrom (including insurance proceeds) shall be applied in accordance with the terms of the Senior Loan Documents or as otherwise consented to by Agent until such time as the Senior Loans are Paid in Full.      

 

 
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2.7.        Sale, Transfer or other Disposition of Subordinated Loan.    Subordinated Lender shall not sell, assign, pledge, dispose of or otherwise transfer all or any portion of the Subordinated Loan or any Subordinated Loan Document (a) without giving prior written notice of such action to Agent, and (b) unless prior to the consummation of any such action, the purchaser, assignee, pledgee or transferee thereof shall execute and deliver to Agent a joinder to this Agreement pursuant to which such transferee agrees to be bound by and subject to the terms hereof. Notwithstanding the failure to execute or deliver any such joinder, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of the Subordinated Loan, and the terms of this Agreement shall be binding upon any such purchaser, assignee, pledgee or transferee.

 

2.8.         Legends. Until the termination of this Agreement in accordance with Section 8 hereof, Subordinated Lender will cause to be clearly, conspicuously and prominently inserted on the face of each Subordinated Loan Document, a legend, in form acceptable to Agent, stating that the Subordinated Loan Document is subject to the terms of this Agreement.

 

2.9.          Liquidation, Dissolution, Bankruptcy. In the event of any Proceeding involving Borrower:

 

(a)      This Agreement shall remain in full force and effect, and any Distribution, whether in cash, securities or other property which would otherwise, but for the terms hereof, be payable or deliverable in respect of the Subordinated Loan shall be paid or delivered directly to Agent (to be held and/or applied by Senior Lenders in accordance with the terms of the Senior Loan Documents) until all of the Senior Loans are Paid in Full. Subordinated Lender irrevocably authorizes, empowers and directs any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other Person having authority, to pay or otherwise deliver all such Distributions to Agent. Subordinated Lender also irrevocably authorizes and empowers Agent, in the name of Subordinated Lender, to demand, sue for, collect and receive any and all such Distributions.

 

(b)      Subordinated Lender agrees that Agent may consent to the use of cash collateral or provide financing to any Credit Party on such terms and conditions and in such amounts as Agent, in its sole discretion, may decide and, in connection therewith, any Credit Party may grant to Agent for the benefit of Senior Lenders liens and security interests upon all of the property of any Credit Party, which liens and security interests (i) shall secure payment of the Senior Loans (whether such Senior Loans arose prior to the commencement of any Proceeding or at any time thereafter) and all other financing provided by Senior Lenders during the Proceeding, and (ii) shall be superior in priority to the liens and security interests, if any, in favor of each such Subordinated Lender on the property of any Credit Party. Subordinated Lender agrees that it will not object to or oppose a sale or other disposition of any property securing all of any part of the Senior Loans free and clear of security interests, liens or other claims of Subordinated Lenders under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code if Agent has consented to such sale or disposition. Subordinated Lender agrees not to assert any right it may have to “adequate protection” of Subordinated Lender’s interest in any Collateral in any Proceeding and agrees that it will not seek to have the automatic stay lifted with respect to any Collateral without the prior written consent of Agent. Subordinated Lender waives any claim it may now or hereafter have arising out of Agent’s election, in any Proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code by Borrower, as debtor in possession. Subordinated Lender further agrees that it will not seek to participate or participate on any creditor’s committee without Agent’s prior written consent.

 

 
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(c)      Subordinated Lender agrees to execute, verify, deliver and file any proofs of claim in respect of the Subordinated Loans requested by Agent in connection with any such Proceeding and hereby irrevocably authorizes, empowers and appoints Agent its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of any Subordinated Lender promptly to do so prior to thirty (30) days before the expiration of the time to file any such proof of claim, and (ii) vote such claim in any such Proceeding, including, but not limited to, to accept or reject any plan of reorganization or arrangement on behalf of Subordinated Lender, all in such manner as Agent deems appropriate; provided , however , that Agent shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that Agent votes any claim in accordance with the authority granted hereby, the relevant Subordinated Lender shall not be entitled to change or withdraw such vote. Subordinated Lender hereby assigns to Agent or its nominee (and will, upon request of Agent, reconfirm in writing the assignment to Agent or its nominee of) all rights of such Subordinated Lender under such claims.

 

(d)      The Senior Loans shall continue to be treated as the Senior Loans and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Lenders and Subordinated Lenders even if all or part of the Senior Loans or the security interests securing the Senior Loans are subordinated, set aside, avoided, invalidated or disallowed in connection with any such Proceeding, and this Agreement shall be reinstated if at any time any payment of any of the Senior Loans is rescinded or must otherwise be returned by any holder of the Senior Loans or any representative of such holder.

 

3.             Modifications.

 

3.1.        Modifications to Senior Loan Documents. Senior Lenders may at any time and from time to time without the consent of or notice to Subordinated Lenders, without incurring liability to any Subordinated Lender and without impairing or releasing the obligations of Subordinated Lender under this Agreement, change the manner or place of payment or extend the time of payment of or renew or alter any of the terms of the Senior Loans (other than increasing the interest rate margins with respect to the Senior Loans by more than 3.00% per annum in excess of the interest rate margins in effect on the date hereof (excluding increases resulting from the accrual of interest at the default rate), or modifying the definition of “LIBOR Rate” or any other term that is used in such definition with respect to the calculation of interest on the Senior Loans) which will require the consent of the Subordinated Lender, which consent shall not be unreasonably withheld), or amend in any manner any agreement, note, guaranty or other instrument evidencing or securing or otherwise relating to the Senior Loans.

 

3.2.         Modifications to Subordinated Loan Documents. Until the Senior Loans have been Paid in Full, and notwithstanding anything to the contrary contained in the Subordinated Loan Documents, Subordinated Lenders shall not, without the prior written consent of Agent, agree to any amendment, modification or supplement to the Subordinated Loan Documents. At any time and from time to time, without notice to Subordinated Lender, subject to Section 3.1, Agent may take such actions in accordance with the terms of the Senior Credit Agreement with respect to the Senior Loans as Agent, in its sole discretion, may deem appropriate, including, without limitation, terminating advances to Borrower, increasing the principal amount, extending the time of payment, increasing applicable interest rates, renewing, compromising or otherwise amending the terms of any documents affecting the Senior Loans and any Collateral securing the Senior Loans, and enforcing or failing to enforce any rights against Borrower or any other person. No such action or inaction shall impair or otherwise affect Agents’ rights hereunder. All rights and interests of the Agent under this Agreement, and all agreements and obligations of the Subordinated Lender and Borrower hereunder, shall remain in full force and effect irrespective of: (1) any lack of validity or enforceability of any Senior Loan Documents; (2) any change in the time, manner or place of payment of, or in any other term of, all or any of the Senior Loans, or any amendment or waiver or other modification, whether by course of conduct or otherwise, of the terms of the Senior Credit Agreement or any other Senior Loan Document; (3) any exchange, release or non-perfection of any security interest in any Collateral, or any release, amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Loans or any guarantee thereof; or (4) any other circumstances which otherwise might constitute a defense available to, or a discharge of, Borrower in respect of the Senior Loans, or of either any Subordinated Lender or Borrower in respect of this Agreement. Nothing herein, including the provisions of this Agreement pertaining to subordination of liens on the Collateral, shall be construed to imply Agent’s or Senior Lenders’ consent to any Subordinated Loan Document which grants a lien upon any of the Collateral.

 

 
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4.     Waiver of Certain Rights by Subordinated Lender.      

 

4.1.      Marshaling. Subordinated Lender hereby waives any rights it may have under applicable law to assert the doctrine of marshaling or to otherwise require Agent or Senior Lenders to marshal any property of any Credit Party or any guarantor of the Senior Loans for the benefit of Subordinated Lender. Subordinated Lender waives the benefits, if any, of any statutory or common law rule that may permit a subordinating creditor to assert any defenses of a surety or guarantor. Subordinated Lender agrees that it shall not assert any such defenses or rights.

 

4.2.      Rights Relating to Agent’s Actions with respect to the Collateral. Subordinated Lender hereby waives, to the extent permitted by applicable law, any rights which it may have to enjoin or otherwise obtain a judicial or administrative order preventing Agent from taking, or refraining from taking, any action with respect to all or any part of the Collateral. Without limitation of the foregoing, Subordinated Lender hereby agrees (a) that it has no right to direct or object to the manner in which Agent applies the proceeds of the Collateral resulting from the exercise by Agent of rights and remedies under the Senior Loan Documents to the Senior Loans, and (b) that Agent has not assumed any obligation to act as the agent for any Subordinated Lender with respect to the Collateral.

 

4.3.      Rights Relating to Disclosures. Subordinated Lender hereby agrees that Senior Lenders has not assumed any obligation or duty to disclose information regarding any Credit Party or the Senior Loans to any Subordinated Lender, and Senior Lenders shall have no special or fiduciary relationship to any Subordinated Lender. Subordinated Lender hereby fully waives and releases Senior Lenders from any affirmative disclosures which may be required of Senior Lenders under applicable law.

 

5.      Construction. The terms of this Agreement were negotiated among business persons sophisticated in the area of business finance, and accordingly, in construing the terms of this Agreement, no rule or law which would require that this instrument be construed against the party who drafted this instrument shall be given any force or effect.

 

6.      Modification of this Agreement . Any modification or waiver of any provision of this Agreement, or any consent to any departure by any party from the terms hereof, shall not be effective in any event unless the same is in writing and signed by Agent and Subordinated Lender to be bound thereby, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given. Any notice to or demand on any party hereto in any event not specifically required hereunder shall not entitle the party receiving such notice or demand to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.

 

 
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7.      Further Assurances . Each party to this Agreement promptly will execute and deliver such further instruments and agreements and do such further acts and things as may be reasonably requested in writing by any other party hereto that may be necessary or desirable in order to effect fully the purposes of this Agreement.

 

8.      Continuing Agreement.    This Agreement is a continuing agreement and will remain in full force and effect until all of the obligations under the Senior Loan Documents have been Paid in Full and all of Subordinated Lender’s obligations to Senior Lenders have been fully performed and indefeasibly satisfied. This Agreement will continue to be effective or will be reinstated, as the case may be, if at any time payment of all or any part of the Senior Loan Documents or the obligations thereunder is rescinded or must otherwise be returned by Agent and/or Senior Lenders upon insolvency, bankruptcy, or reorganization of any Credit Party or otherwise, all as though such payment had not been made.

 

9.      Notices . Any notice or other communication required or permitted under this Agreement shall be in writing and personally delivered, mailed by registered or certified mail (return receipt requested and postage prepaid), sent by facsimile (with a confirming copy sent by regular mail), or sent by prepaid overnight courier service, and addressed to the relevant party at its address set forth below, or at such other address as such party may, by written notice, designate as its address for purposes of notice under this Agreement:

 

If to Senior Lenders, to Agent at:

 

Midcap Funding X Trust

c/o MidCap Financial Services, LLC, as servicer

7255 Woodmont Avenue, Suite 200

Bethesda, MD 20814

Attention: Portfolio Mgt. – Twin Labs Loan

Facsimile: (301) 941-1450

 

with a copy to:

 

Midcap Funding X Trust

c/o MidCap Financial Services, LLC, as servicer

7255 Woodmont Avenue, Suite 200

Bethesda, MD 20814

Attention: General Counsel

Facsimile: (301) 941-1450

 

If to Company or any other Credit Party, at:

 

c/o Twinlab Consolidation Corporation

4800 T-Rex Avenue

Suite 305

Boca Raton, Florida 33431

Attention: Al Gever, CFO

Facsimile: (561) 443-2821

 

 
-9-

 

 

If to Subordinated Lender, at:

 

2014 Huntington Holdings, LLC

c/o Jonathan Greenhut

43 Hunting Hollow Court

Dix Hills, NY 11746

Email:jon@trueearthhealth.com
Facsimile:

 

with a copy to:

 

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention: Christopher S. Auguste, Esq.

Facsimile: (212) 715-8277

 

If mailed, notice shall be deemed to be given five (5) days after being sent, and if sent by personal delivery, facsimile or prepaid courier, notice shall be deemed to be given when delivered.

 

10.      Successors and Assigns. This Agreement shall inure to the benefit of, and shall be binding upon, the respective successors and assigns of Senior Lenders, Subordinated Lenders and the Credit Parties; provided, however , that neither Subordinated Lender nor any Credit Party may assign this Agreement in whole or in part without the prior written consent of Agent. Senior Lenders may, from time to time, without notice to Subordinated Lenders, assign or transfer any or all of the Senior Loans or any interest therein to any Person and, notwithstanding any such assignment or transfer, or any subsequent assignment or transfer, the Senior Loans shall, subject to the terms hereof, be and remain the Senior Loans for purposes of this Agreement, and every permitted assignee or transferee of any of the Senior Loans or of any interest therein shall, to the extent of the interest of such permitted assignee or transferee in the Senior Loans, be entitled to rely upon the subordination provided under this Agreement and shall be entitled to enforce the terms and provisions hereof to the same extent as if such assignee or transferee were initially a party hereto. This Agreement is not for the benefit of Borrower or any guarantor of the Senior Loans. Subordinated Lender further agrees that if Borrower is in the process of refinancing any portion of the Senior Loans with a new lender, and if Agent makes a request of Subordinated Lender, Subordinated Lender shall agree to enter into a new subordination agreement with the new lender on substantially the same terms and conditions of this Agreement.

 

11.      No Waiver or Novation. No waiver shall be deemed to have been made by any party to this Agreement of any of its rights under this Agreement unless the same shall be in writing and duly signed by its duly authorized officers, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of any party to this Agreement in any other respect at any time. No executory agreement shall be effective to change, modify or to discharge, in whole or in part, this Agreement, unless such executory agreement is in writing and duly signed by the duly authorized officers of each party to this Agreement.

 

 
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12.       Expenses . Borrower agrees to pay or reimburse Agent, upon demand, for all its costs and expenses in connection with the enforcement or preservation of any rights under this Agreement, including, without limitation, fees and disbursements of counsel to Agent or Senior Lenders. Borrower agrees to pay, indemnify, and hold Agent and its principals harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions (whether sounding in contract, tort or on any other ground), judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of, or in any other way arising out of or relating to this Agreement or any action taken or omitted to be taken by any Senior Lender with respect to any of the foregoing.

 

 

12.      CONSENT TO JURISDICTION. SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO SENIOR LENDERS’ ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES AT THEIR RESPECTIVE ADDRESSES SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING TO THIS AGREEMENT, ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF SUBORDINATED LENDER, EACH CREDIT PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF SUBORDINATED LENDER OR EACH CREDIT PARTY, AS APPLICABLE, FOR PURPOSES OF ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES AGREES THAT SENIOR LENDERS’ COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION. SUBORDINATED LENDER AND EACH OF THE CREDIT PARTIES IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED BY SENIOR LENDERS, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO THE DISPUTE.

 

13.      WAIVER OF JURY TRIAL. SUBORDINATED LENDER, EACH OF THE CREDIT PARTIES AND SENIOR LENDERS HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE SUBORDINATED LOAN DOCUMENTS OR ANY OF THE SENIOR LOAN DOCUMENTS. SUBORDINATED LENDER, EACH OF THE CREDIT PARTIES AND SENIOR LENDERS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE SENIOR LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. SUBORDINATED LENDER, EACH OF THE CREDIT PARTIES AND SENIOR LENDERS WARRANTS AND REPRESENTS THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.

 

 
-11-

 

 

14.          Miscellaneous .

 

14.1.      Conflict. In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Subordinated Loan Documents, the provisions of this Agreement shall control and govern.

 

14.2.      Headings. The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.

 

14.3.      Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument, but in making proof hereof, it shall only be necessary to produce one such counterpart containing signatures pages signed by each party. Signatures by facsimile or by electronic mail delivery of an electronic version (e.g., .pdf or .tif file) of an executed signature page shall be treated as delivery of an original and shall bind the parties hereto .

 

14.4.      Severability. In the event that any provision of this Agreement is deemed to be invalid, illegal or unenforceable by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the affected provision shall be modified to the minimum extent permitted by law so as most fully to achieve the intention of this Agreement.

 

14.5.      Governing Law. This Agreement shall be governed by and shall be construed and enforced in accordance with the internal laws of the State of New York, without regard to conflicts of law principles.

 

14.6.      Relative Rights. This Agreement shall define the relative rights of Senior Lenders and Subordinated Lenders. Nothing in this Agreement shall (a) impair, as between the Credit Parties and Senior Lenders, the obligation of the Credit Parties with respect to the payment of the Senior Loans and the Subordinated Loans in accordance with their respective terms, or (b) affect the relative rights of Senior Lenders or Subordinated Lenders with respect to any other creditors of the Credit Parties.

 

14.7.      Entire Agreement. This Agreement (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

 

 

[SIGNATURES APPEAR ON FOLLOWING PAGE]

 

 
-12-

 

 

Signature Page to

SUBORDINATION AGREEMENT

 

IN WITNESS WHEREOF , intending to be legally bound, and intending that this Agreement constitute an instrument executed and delivered under seal, the parties have caused this Agreement to be executed under seal as of the date first written above.

 

 

 

AGENT:

 

MIDCAP FUNDING X TRUST,

a Delaware statutory trust,

as Agent for Senior Lender

 

By:           Apollo Capital Management, L.P.,

                 its investment manager

 

By:           Apollo Capital Management GP, LLC,

                 its general partner

 

 

By:    /s/ Michael Levin                                      (SEAL)

 Name: Michael Levin

 Title: Authorized Signatory

 

 

 

 

Signature Page to

SUBORDINATION AGREEMENT

 

 

SUBORDINATED LENDER:

 

2014 HUNTINGTON HOLDINGS, LLC ,

a Delaware limited liability company

 

 

By:   /s/ Jonathan Greenhut                                (SEAL)

Name: Jonathan Greenhut

Title: Manager

 

 

 

 

 

Signature Page to

SUBORDINATION AGREEMENT

 

BORROWER:

 

 

TWINLAB CONSOLIDATION CORPORATION

 

By:   /s/ Naomi Whittel                                         (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

   
   

TWINLAB CONSOLIDATED HOLDINGS, INC.

 

   

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

TWINLAB HOLDINGS, INC .

 

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

   
   

TWINLAB CORPORATION  

 

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

ISI BRANDS, INC.

 

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

   
   

NUTRASCIENCE LABS, INC.

 

   

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

NUTRASCIENCE LABS IP CORPORATION

 

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Chief Executive Officer

   
   

ORGANIC HOLDINGS LLC

 

 

By:   /s/ Naomi Whittel                                          (Seal)  

Name: Naomi Whittel

Title:   Sole Manager

RESERVE LIFE ORGANICS, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title:   Sole Manager

 

 

 

 

RESVITALE, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

RE-BODY, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

   

INNOVITAMIN ORGANICS, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

ORGANICS MANAGEMENT LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

   

COCOAWELL, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

FEMBODY, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

   

RESERVE LIFE NUTRITION, L.L.C.

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

INNOVITA SPECIALTY DISTRIBUTION, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

   

JOIE ESSANCE, LLC

 

By ORGANIC HOLDINGS LLC,

its sole Member

 

By:   /s/ Naomi Whittel                                          (Seal)

Name: Naomi Whittel
Title: Sole Manager

 

 

 

 

 

EXHIBIT A

 

 

[Attach Subordinated Note]

Exhibit 10.168

 

STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.

 

Agreement of Lease, made as of the 2nd day of June in the year 2017, between CAROLYN HOLDINGS, LLC, maintaining a place of business c/o New Vitality, 260 Smith Street, Farmingdale, NY 11735, party of the first part, hereinafter referred to as OWNER, and TWINLAB CONSOLIDATED HOLDINGS, INC., maintaining a place of business at 4800 T-Rex Avenue, Suite 305, Boca Raton, FL 33431, party of the second part, hereinafter referred to as TENANT,

 

Witnesseth:           Owner hereby leases to Tenant and Tenant hereby hires from Owner land, with improvements thereon, in the building known as 70 Carolyn Boulevard, Farmingdale, New York, as shown on Schedule A annexed hereto (the “premises” or “demised premises”), City of Farmingdale, State of New York, for the term of four (4) years (or until such term shall sooner cease and expire as hereinafter provided) to commence on the date hereof, and to end on June 1, 2021, and both dates inclusive, at the annual rental rate of as herein provided

 

which Tenant agrees to pay in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month during said term, at the office of Owner or such other place as Owner may designate, without any setoff or deduction whatsoever, except that Tenant shall pay the first monthly installment(s) on the execution hereof (unless this lease be a renewal).

 

In the event that, at the commencement of the term of this lease, or thereafter, Tenant shall be in default is the payment of rent to Owner pursuant to the terms of another lease with Owner or with Owner’s predecessor in interest, Owner may at Owner’s option and without notice to Tenant add the amount of such arrears to any monthly installment of rent payable hereunder and the same shall be payable to Owner as additional rent.

 

The parties hereto, for themselves, their heirs, distributes, executors, administrators, legal representative, successors and assigns, hereby covenant as follows:

 

Rent:

1 . Tenant shall pay the rent as hereinafter provided.

   
 

2. Tenant shall use and occupy the demised premises for warehouse and distribution of skin care and nutraceutical products and general warehouse and distribution (provided, in Owner’s reasonable judgment, such use is not hazardous or unsafe, and does not include the use, storage, generation, disposal or discharge of hazardous materials (as hereinafter defined)) and office therefor, provided such use is in accordance with the certificate of occupancy for the building, and for no other purpose without the prior consent of Owner.

 

 
 

 

 

Alterations:

3. Tenant shall make no changes in or to the demised premises of any nature without Owner’s prior written consent. Subject to the prior written consent of Owner, and to the provisions of this article, Tenant, at Tenant’s expense, may make alterations, installations, additions or improvements which are nonstructural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premises (“Nonstructural Alterations”), using contractors or mechanics first approved in each instance by Owner. Tenant shall, at its expense, before making any alterations, additions, installations or improvements obtain all permits, approvals and certificates required by any governmental or quasi-governmental bodies and (upon completion) certificates or final approval thereof, and shall deliver promptly duplicates of all such permits, approvals and certificates to Owner. Tenant agrees to carry, and will cause Tenant’s contractors and sub-contractors to carry, such worker’s compensation, commercial general liability, personal and property damage insurance for the benefit of the Owner   as Owner may require. If any mechanic’s lien is filed against the demised premises, or the building of which the same forms a part, for work claimed to have been done for, or materials claimed to have been furnished to, Tenant or any party claiming by, through or under Tenant, whether or not done pursuant to this article, the same shall be discharged by Tenant within thirty (30) days thereafter, at Tenant’s expense, by payment or filing a bond as permitted by law. All fixtures, alterations, installations, additions, improvements and all paneling, partitions, railings and like installations, installed in the demised premises at any time, either by Tenant or by Owner on Tenant’s behalf, shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the demised premises unless Owner, by notice to Tenant no later than twenty (20) days prior to the date fixed as the termination of this lease, elects to relinquish Owner’s right thereto and to have them removed by Tenant, in which event the same shall be removed from the demised premises by Tenant prior to the expiration of the lease, at Tenant’s expense. Nothing in this article shall be construed to give Owner title to, or to prevent Tenant’s removal of, trade fixtures, moveable office furniture and equipment, but upon removal of same from the demised premises, or upon removal of other installations as may be required by Owner, Tenant shall immediately, and at its expense, repair and restore the demised premises to the condition existing prior to any such installations, and repair any damage to the demised premises or the building due to such removal. All property permitted or required to be removed by Tenant at the end of the term remaining in the demised premises after Tenant’s removal shall be deemed abandoned and may, at the election of Owner, either be retained as Owner’s property or removed from the demised premises by Owner, at Tenant’s expense.

 

 
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Repairs:

4. Tenant shall, throughout the term of this lease, take good care of the demised premises including the bathrooms and lavatory facilities, the windows and window frames, and the fixtures and appurtenances therein, and at Tenant’s sole cost and expense promptly make all repairs thereto and to the building, whether structural or non-structural in nature, caused by, or resulting from, the carelessness, omission, neglect or improper conduct of Tenant, Tenant’s servants, employees, invitees, or licensees, and whether or not arising from Tenant’s conduct or omission, when required by other provisions of this lease, including article 6. Tenant shall also repair all damage to the building and the demised premises caused by the moving of Tenant’s fixtures, furniture or equipment. All the aforesaid repairs shall be of quality or class equal to the original work or construction, as determined by Owner, in its reasonable discretion. If Tenant fails after (10) days’ notice, to proceed with due diligence to make repairs required to be made by Tenant, the same may be made by Owner at the expense of Tenant, and the expenses thereof incurred by Owner shall be collectible, as additional rent, after rendition of a bill or statement therefore. If the demised premises be or become infested with vermin, Tenant shall, at its expense, cause the same to be exterminated. Except as specifically provided in Article 9 or elsewhere in this lease, there shall be no allowance to Tenant for a diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner, Tenant or others making or failing to make any repairs, alterations, additions or improvements in or to any portion of the building or the demised premises, or in and to the fixtures, appurtenances or equipment thereof. It is specifically agreed that Tenant shall not be entitled to any setoff or reduction of rent by reason of any failure of Owner to comply with the covenants of this or any other article of this lease. The provisions of this Article 4 with respect to the making of repairs shall not apply in the case of fire or other casualty with regard to which Article 9 hereof shall apply.

   

Window Cleaning:

5. Tenant will not clean nor require, permit, suffer or allow any window in the demised premises to be cleaned from the outside in violation of Section 202 of the New York State Labor Law or any other applicable law, or of the Rules of the Board of Standards and Appeals, or of any other Board or body having or asserting jurisdiction.

 

 
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Requirements of Law, Fire Insurance, Floor Loads:

6. Prior to the commencement of the lease term, if Tenant is then in possession, and at all times thereafter, Tenant shall at Tenant’s sole cost and expense, promptly comply with all present and future laws, orders and regulations of all state, federal, municipal and local governments, departments, commissions and boards and any direction of any public officer pursuant to law, and all orders, rules and regulations of the New York Board of Fire Underwriters, Insurance Services Office, or any similar body which shall impose any violation, order or duty upon Owner or Tenant with respect to the demised premises, whether or not arising out of Tenant’s use or manner of use thereof, or, with respect to the building, if arising out of Tenant’s use or manner of use of the demised premises of the building (including the use permitted under the lease). Tenant shall not do or permit any act or thing to be done in or to the demised premises which is contrary to law, or which will invalidate or be in conflict with public liability, fire or other policies of insurance at any time carried by or for the benefit of Owner, or which shall or might subject Owner to any liability or responsibility to any person, or for property damage. Tenant shall not keep anything in the demised premises except as now or hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization and other authority having jurisdiction, and then only in such manner and such quantity so as not to increase the rate for fire insurance applicable to the building, nor use the demised premises in a manner which will increase the insurance rate for the building or any property located therein over that in effect prior to the commencement of Tenant’s occupancy. If by reason of failure to comply with the foregoing the fire insurance rate shall, at the beginning of this lease or at any time thereafter, be higher than it otherwise would be, then Tenant shall reimburse Owner, as additional rent hereunder, for that portion of all fire insurance premiums thereafter paid by Owner which shall have been charged because of such failure by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a schedule or “make-up” or rate for the building or demised premises issued by a body making fire insurance rates applicable to said premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rates then applicable to said premises. Tenant shall not place a load upon any floor of the demised premises exceeding the floor land per   square foot area which it was designed to carry and which is allowed by law. Owner reserves the right to prescribe the weight and position of all safes, business machines and mechanical equipment. Such installations shall be placed and maintained by Tenant, at Tenant’s expense, in settings sufficient, in Owner’s judgment, to absorb and prevent vibration, noise and annoyance.

   

Subordination.

7. This lease is subject and subordinate to all ground or underlying leases and to all mortgages which may now or hereafter affect such leases or the real property of which the demised premises are a part, and to all renewals, modifications, consolidations, replacements and extensions of any such underlying leases and mortgages. This clause shall be self-operative and no further instrument or subordination shall be required by any ground or underlying lessor or by any mortgagee, affecting any lease or the real property of which the demised premises are a part. In confirmation of such subordination, Tenant shall from time to time execute promptly any certificate that Owner may request.

 

 
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Tenant’s Liability Insurance Property Loss, Damage, Indemnity:

8. Owner or its agents shall not be liable for any damage to property of Tenant or of others entrusted to employees of the building, nor for loss of or damage to, any property of Tenant by theft or otherwise, nor for any injury or damage to persons, or property resulting from any cause of whatsoever nature, unless directly caused by, or due to, the gross negligence of Owner, its agents, servants   or employees; Owner or its agents shall not be liable for any damage caused by other tenants or persons in, upon or about said building or caused by operations in connection of any private, public or quasi-public work. If at any time any   windows of the demised premises are temporarily closed, darkened or bricked up (or permanently closed, darkened or bricked up, if required by law) for any reason whatsoever including, but not limited to, Owner’s own acts, Owner shall not be liable for any damage Tenant may sustain thereby, and Tenant shall not be entitled to any compensation therefore nor abatement or diminution of rent, nor shall the same release Tenant from its obligations hereunder nor constitute an eviction. To the fullest extent permitted by law, Tenant shall defend, indemnify and hold harmless Owner against and from all liabilities, obligations, damages, penalties, fines, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorney’s fees, paid, suffered or incurred as a result of any breach by Tenant, Tenants agents, contractors, employees, invitees, or licensees, of any covenant or condition of this lease, or the acts, omissions, carelessness, negligence, willful misconduct or improper conduct of Tenant, Tenant’s agents, contractors, employees, invitees or licensees. Tenant’s liability under this lease extends to the acts and omissions of any subtenant, and any agent, contractor, employee, invitee or licensee of any subtenant. In case any action or proceeding is brought against Owner by reason of any such claim, Tenant, upon written notice from Owner, will, at Tenant’s expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to be unreasonably withheld. The indemnification obligation of Tenant as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, or other employee benefit acts. This provision shall survive the expiration or earlier termination of this Lease.

 

 
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Destruction, Fire, and Other Casualty

9 . (a) If the demised premises or any part thereof shall be damaged by fire or other casualty, Tenant shall give immediate notice thereof to Owner and this lease shall continue in full force and effect except as hereinafter set forth. (b) If the demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by, and at the expense of, Owner, to the extent of the net proceeds of insurance received by Owner, and the rent and other items of additional rent, until such repair shall be substantially completed, shall be apportioned from the day following the casualty according to the part of the demised premises which is usable. (c) If the demised premises are totally damaged or rendered wholly unusable by fire or other casualty, then the rent and other items of additional rent as hereinafter expressly provided shall be proportionately paid up to the time of the casualty and thenceforth shall cease until the date when the demised premises shall have been repaired and restored by Owner (or sooner reoccupied in part by Tenant then rent shall be apportioned as provided in subsection (b) above), subject to Owner’s right to elect not to restore the same as hereinafter provided. (d) If the demised premises are rendered wholly unusable or (whether or not the demised premises are damaged in whole or in part) if the building shall be so damaged that Owner shall decide to demolish it or to rebuild it, then, in any of such events, Owner may elect to terminate this lease by written notice to Tenant, given within ninety (90) days after such fire or casualty, or thirty (30) days after adjustment of the insurance claim for such fire or casualty, whichever is sooner, specifying a date for the expiration of the lease, which date shall not be more than sixty (60) days after the giving of such notice, and upon the date specified in such notice the term of this lease shall expire as fully and completely as if such date were the date set forth above for the termination of this lease, and Tenant shall forthwith quit, surrender and vacate the demised premises without prejudice however, to Owner’s rights and remedies against Tenant under the lease provisions in effect prior to such termination, and any rent owing shall be paid up to such date, and any payments of rent made by Tenant which were on account of any period subsequent to such date shall be returned to Tenant. Unless Owner shall serve a termination notice as provided for herein, Owner shall make the repairs and restorations under the conditions of (b) and (c) hereof, with all reasonable expedition, subject to delays due to adjustment of insurance claims, labor troubles and causes beyond Owner’s control. The repairs and restorations hereunder do not include repairs or restorations to improvements, alterations, betterments, installations or fixtures made or installed by or on behalf of Tenant; the provisions of this paragraph shall not apply thereto. After any such casualty, Tenant shall cooperate with Owner’s restoration by removing from the demised premises as promptly as reasonably possible, all of Tenant’s salvageable inventory and movable equipment, furniture, and other property. Tenant’s liability for rent shall resume five (5) days after written notice from Owner that the demised premises are substantially ready for Tenant’s occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability that may exist as a result of damage from fire or other casualty. Notwithstanding anything contained to the contrary in subdivisions (a) through (e) hereof, including Owner’s obligation to restore under subparagraph (b) above, each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty and to the extent that such insurance is in force and collectible, and to the extent permitted by law, Owner and Tenant each hereby releases and waives all right of recovery with respect to subparagraphs (b), (d) and (e) above against the other or any one claiming through or under each of them by way of subrogation or otherwise. The release and waiver herein referred to shall be deemed to include any loss or damage to the demised premises and/or to any personal property, equipment, trade fixtures, goods and merchandise located therein. The foregoing release and waiver shall be in force only if both releasors’ insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance. If, and to the extent, that such waiver can be obtained only by the payment of additional premiums, then the party benefiting from the waiver shall pay such premium within ten (10) days after written demand or shall be deemed to have agreed that the party obtaining insurance coverage shall be free of any further obligation under the provisions hereof with respect to waiver of subrogation.  Tenant acknowledges that Owner will not carry insurance on Tenant’s furniture and/or furnishings or any fixtures or equipment, improvements, or appurtenances removable by Tenant, and agrees that Owner will not be obligated to repair any damage thereto or replace the same. (f) Tenant hereby waives the provisions of Section 227 of the Real Property Law and agrees that the provisions of this article shall govern and control in lieu thereof. In the event that the Premises are damaged by fire or other casualty to such extent that the damage, as determined by Owner’s architect or contractor, cannot be fully repaired within two hundred seventy (270) days from the date of the casualty, either party may terminate this Lease by written notice to the other given within fifteen (15) days after Owner delivers to Tenant an estimate of the time required to repair the damage, which estimate shall be prepared by Owner’s architect or contractor. If twenty-five percent (25%) or more of the replacement cost of the Premises is damaged within the last one (1) year of the Term, as determined by Owner’s architect or contractor, Tenant may terminate the Lease upon thirty (30) days notice given within sixty (60) days after the date of such damage or destruction.

 

 
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Eminent Domain:

10. If the whole or any part of the demised premises shall be acquired or condemned by Eminent Domain for any public or quasi-public use   or purpose, then and in that event, the term of this lease shall cease and terminate from the date of title vesting in such proceeding and Tenant shall have no claim for the value of any unexpired term of said lease. Tenant shall have the right to make an independent claim to the condemning authority for the value of Tenant’s moving expenses and personal property, trade fixtures and equipment, provided Tenant is entitled pursuant to the terms of the lease to remove such property, trade fixtures and equipment at the end of the term, and provided further such claim does not reduce Owner’s award.

   

Assignment, Mortgage, Etc.:

11. Tenant, for itself, its heirs, distributes, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage or encumber this agreement, nor underlet, or suffer or permit the demised premises or any part thereof to be used by others, without the prior written consent of Owner in each instance. Transfer, directly or indirectly, voluntarily or involuntarily by operation of law or otherwise, of the majority of the stock of a corporate Tenant or the majority interest in any partnership or other legal entity which is Tenant shall be deemed an assignment. If this lease be assigned, or if the demised premises or any part thereof be underlet or occupied by anybody other than Tenant, Owner may, after default by Tenant, collect rent from the assignee, undertenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Owner to an assignment or underletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Owner to any further assignment or underletting.

   

Electric Current:

12. Tenant covenants and agrees that at all times its use of electric current shall not exceed the capacity of existing feeders to the building or the risers or wiring installation, and Tenant may not use any electrical equipment which, in Owner’s opinion, reasonably exercised, will overload such installations or interfere with the use thereof by other tenants of the building. The change at any time of the character or electric service shall in no way make Owner liable or responsible to Tenant, for any loss, damages or expenses which Tenant may sustain.

 

 
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Access to Premises:

13. Owner or Owner’s agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building, or which Owner may elect to perform in the demised premises after Tenant’s failure to make repairs, or perform any work which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Tenant shall permit Owner to use, maintain and replace pipes, ducts, and conduits in and through the demised premises, and to erect new pipes, ducts and conduits therein provided, wherever possible, that they are within walls or otherwise concealed. Owner may, during the progress of any work in the demised premises, take all necessary materials and equipment into said premises without the same constituting an eviction, nor shall Tenant be entitled to any abatement of rent while such work is in progress, nor to any damages by reason of loss or interruption of business, or otherwise. Throughout the term hereof Owner shall have the right to enter the demised premises at reasonable hours for the purpose of showing the same to prospective purchasers or mortgagees of the building, and during the last six (6) months of the term for the purpose of showing the same to prospective tenants. If Tenant is not present to open and permit an entry into the demised premises, Owner or Owner’s agents may enter the same whenever such entry may be necessary or permissible by master key or forcibly, and provided reasonable care is exercised to safeguard Tenant’s property, such entry shall not render Owner or its agents liable therefore, nor in any event shall the obligations of Tenant hereunder be affected. If during the last month of the term Tenant shall have removed all or substantially all of Tenant’s property therefrom, Owner may immediately enter, alter, renovate or redecorate the demised premises without limitation or abatement of rent, or incurring liability to Tenant for any compensation, and such act shall have no effect on this lease or Tenant’s obligation hereunder.

   

Vault, Vault Space, Area

14 . No vaults, vault space or area, whether or not enclosed or covered, not within the property line of the building is leased hereunder, anything contained in or indicated on any sketch, blue print or plan, or anything contained elsewhere in this lease to the contrary notwithstanding. Owner makes no representation as to the location of the property line of the building. All vaults and vault space and all such areas not within the property line of the building, which Tenant may be permitted to use   and/or occupy, is to be used and/or occupied under a revocable license, and if any such license be revoked, or if the amount of such space or area be diminished or required by any federal, state or municipal authority or public utility, Owner shall not be subject to any liability, nor shall Tenant be entitled to any compensation or diminution or abatement of rent, nor shall such revocation, diminution or requisition be deemed constructive or actual eviction. Any tax, fee or charge of municipal authorities for such vault or area shall be paid by Tenant, if used by Tenant, whether or not specifically leased hereunder.

 

 
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Occupancy:

15 . Tenant will not at any time use or occupy the demised premises in violation of the certificate of occupancy issued for the building of which the demised premises are a part. Tenant has inspected the demised premises and accepts them as is. In any event, Owner makes no representation as to the condition of the demised premises and Tenant agrees to accept the same subject to violations, whether or not of record. If any governmental license or permit shall be required for the proper and lawful conduct of Tenant’s business, Tenant shall be responsible for, and shall procure and maintain, such license or permit.

   

Bankruptcy:

16 .   (a)  Anything elsewhere in this lease to the contrary notwithstanding, this lease may be cancelled by Owner by sending of a written notice to Tenant within a reasonable time after the happening of any one or more of the following events: (1) the commencement of a case in bankruptcy or under the laws of any state naming Tenant (or a guarantor of any of Tenant’s obligations under this lease) as the debtor; or (2) the making by Tenant (or a guarantor of any of Tenant’s obligations under this lease) of an assignment or any other arrangement for the benefit of creditors under any state statute. Neither Tenant nor any person claiming through or under Tenant, or by reason of any statute or order of court, shall thereafter be entitled to possession of the premises demised, but shall forthwith quit and surrender the demised premises. If this lease shall be assigned in accordance with its terms, the provisions of this Article 16 shall be applicable only to the party then owning Tenant’s interest in this lease.

   
 

(b) It is stipulated and agreed that in the event of the termination of this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other provisions of this lease to the contrary, be entitled to recover from Tenant, as and for liquidated damages, an amount equal to the difference between the rental reserved hereunder for the unexpired portion of the term demised and the fair and reasonable rental value of the demised premises for the same period. In the computation of such damages the difference between any installment of rent becoming due hereunder after the date of termination and the fair and reasonable rental value of the demised premises for the period for which such installment was payable shall be discounted to the date of termination at the rate of four percent (4%) per annum. If the demised premises or any part thereof be relet by Owner for the unexpired term of said lease, or any part thereof, before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such ret-letting shall be deemed to be the fair and reasonable rental value for the part or the whole of the demised premises so re-let during the term of the re-letting. Nothing herein contained shall limit or prejudice the right of the Owner to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to, or less than the amount or the difference referred to above.

 

 
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Default:

17 .  (1)  If Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent; or if the demised premises becomes vacant or deserted, or if this lease be rejected under §365 of Title 11 of the U.S. Code (Bankruptcy Code); or if any execution or attachment shall be issued against Tenant or any of Tenant’s property whereupon the demised premises shall be taken or occupied by someone other than Tenant; or if Tenant shall be in default with respect to any other lease between Owner and Tenant, or if Tenant shall have failed, after five (5) days written notice, to redeposit with Owner any portion of the security deposited hereunder which Owner has applied to the payment of any rent and additional rent due and payable hereunder; or if Tenant fails to move into or take possession of the demised premises within thirty (30) days after the commencement of the term of this lease, then in any one or more of such events, upon Owner serving a written fifteen (15) days notice upon Tenant specifying the nature of said default, and upon the expiration of said fifteen (15) days, if Tenant shall have failed to comply with or remedy such default, or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within said fifteen (15) day period, and if Tenant shall not have diligently commenced during such default within such fifteen (15) day period, and shall not thereafter with reasonable diligence and in   good faith, proceed to remedy or cure such default, then Owner may serve a written five (5) days notice of cancellation of this lease   upon Tenant, and upon the expiration of said five (5) days this lease and the term thereunder shall end and expire as fully and completely as if the expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this lease and the term thereof, and Tenant shall then quit and surrender the demised premises to Owner, but Tenant shall remain liable as hereinafter provided.

   
 

(2) If the notice provided for in (1) hereof shall have been given, and the term shall expire as   aforesaid; or if Tenant shall be in default in the payment of the rent reserved herein or any item of additional rent herein mentioned, or any part of either, or in making any other payment herein required; then, and in any of such events, Owner may without notice, re-enter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the legal representative of Tenant or other occupant of the demised premises, and remove their effects and hold the demised premises as if this lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end. If Tenant shall make default hereunder prior to the date fixed as the commencement or any renewal or extension of this lease, Owner may cancel and terminate such renewal or extension agreement by written notice.

 

 
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Remedies of Owner and

Waiver of Redemption:

18 .  (1)  In case of any such default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) the rent, and additional rent, shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the demised premises or any part or parts thereof, either in the name of Owner or otherwise, for a term or terms, which may at Owner’s option 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 or charge a higher rental than that in this lease, (c) Tenant or the legal representatives of Tenant shall also pay to Owner as liquidated damages for the failure of Tenant to observe and perform said Tenant’s covenants herein contained, any deficiency between the rent hereby reserved and or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent 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. The failure of Owner to re-let the demised premises or any part or parts thereof shall not release or affect Tenant’s liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Owner may incur in connection with re-letting, such as legal expenses, reasonable attorneys’ fees, brokerage, advertising, and for keeping the demised premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this lease, and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Owner to collect the deficiency for any subsequent month by a   similar proceeding. Owner, in putting the demised premises in good order or preparing the same for re-rental may, at Owner’s option, make such alterations, repairs, replacements, and/or decorations in the demised premises as Owner, in Owner’s sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever for failure to re-let the demised premises, or in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rents collected over the sums payable by Tenant to Owner hereunder. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Owner   shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease of any particular remedy, shall not preclude Owner from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws.

 

(2) Notwithstanding anything to the contrary, at Owner’s option, in the event of the termination of this lease pursuant to Section 17 hereof, Owner shall forthwith be entitled to recover from Tenant, as and for liquidated damages, an amount equal to the difference between the rental reserved hereunder for the unexpired portion of the term demised and the fair and reasonable rental value of the demised premises for the same period. In the computation of such damages the difference between any installment of rent becoming due hereunder after the date of termination and the fair and reasonable rental value of the demised premises for the period for which such installment was payable shall be discounted to the date of termination at the rate of four percent (4%) per annum. If the demised premises or any part thereof be relet by Owner for the unexpired term of said lease, or any part thereof, before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such ret-letting shall be deemed to be the fair and reasonable rental value for the part or the whole of the demised premises so re-let during the term of the re-letting. Nothing herein contained shall limit or prejudice the right of the Owner to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to, or less than the amount or the difference referred to above.

 

 
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Fees and Expenses:

19 . If Tenant shall default in the observance or performance of any term or covenant on Tenant’s part to be observed or performed under, or by virtue of, any of the terms or provisions in any article of this lease, after notice, and upon expiration of the applicable cure or grace period, if any, (except in an emergency), then, unless otherwise provided elsewhere in this lease, Owner may immediately, or at any time thereafter, and without further notice, perform the obligation of Tenant thereunder. If Owner, in connection with the foregoing, or in connection with any default by Tenant of any covenant to pay rent hereunder, or any bankruptcy of Tenant, makes any expenditures or incurs any obligations for the payment of money, including but not limited to reasonable attorneys’ fees, including, without limitation, in instituting, prosecuting or defending any action or proceeding, seeking advice of counsel, or enforcing this Lease, then Tenant will immediately reimburse Owner for such sums so paid or obligations incurred with interest and costs. The foregoing expenses incurred by reason of Tenant’s default shall be deemed to be additional rent hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition of any bill or statement to Tenant therefore. If Tenant’s lease term shall have expired at the time of making of such expenditures or incurring of such obligation, such sums   shall be recoverable by Owner as damages. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the non-prevailing party all reasonable expenses and charges incurred in such actions, including without limitation reasonable attorneys fees, costs of suit, investigation costs and discovery costs, as well as costs of appeal.

   

Building Alterations and Management:

20 . Owner shall have the right, at any time, without the same constituting an eviction and without incurring liability to Tenant therefore, to change the arrangement and or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets or other public parts of the building, and to change the name, number or designation by which the building may be known. There shall be no allowance to Tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner or other tenant making any repairs in the building or any such alterations, additions and improvements. Furthermore, Tenant shall not have any claim against Owner by reason of Owner’s imposition of any controls of the manner of access to the building by Tenant’s social or business visitors, as Owner may deem necessary, for the security of the building and its occupants.

 

 
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No Representations by Owner:

21 . Neither Owner nor Owner’s agents have made any representations or promises with respect to the physical condition of the building, the land upon which it is erected, the demised premises, the rents, leases, expenses of operation, or any other matter or thing affecting or related to the demised premises or the building, except as herein expressly set forth, and no rights, easements or licenses are acquired by Tenant by implication or otherwise except as expressly set forth in the provisions of this lease. Tenant has inspected the building and the demised premises and is thoroughly acquainted with their condition and agrees to take the same “as-is” on the date possession is tendered, and acknowledges that the taking of possession of the demised premises by Tenant shall be conclusive evidence that the said premises, and the building of which the same form a part, were in good and   satisfactory condition at the time such possession was so taken, except as to latent defects. All understandings and agreements heretofore made between the parties hereto are merged in this contract, which alone fully and completely expresses the agreement between Owner and Tenant, and any executory agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part, unless such executory agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.

   

End of Term:

22 . Upon the expiration or other termination of the term of this   lease, Tenant shall quit and surrender to Owner the demised premises, “broom-clean”, in good order and condition, ordinary wear and tear excepted, and Tenant shall remove all its property from the demised premises. Tenant’s obligation to observe or perform this covenant shall survive the expiration or other termination of this lease. If the last day of the term of this lease, or any renewal thereof, falls on Sunday, this   lease shall expire at noon on the preceding Saturday, unless it be a legal holiday, in which case it shall expire at noon on the preceding business day.

   

Quiet Enjoyment:

23 . Owner covenants and agrees with Tenant that upon Tenant paying the rent   and additional rent and observing and performing all the terms, covenants and conditions, on Tenant’s part to be observed and performed, Tenant may peaceably and quietly enjoy the premises hereby demised, subject, nevertheless, to the terms and conditions of this lease including, but not limited to, Article 34 hereof, and to the ground leases, underlying leases and mortgages hereinbefore mentioned.

   

Failure to Give Possession:

24 . Intentionally Deleted.

 

 
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No Waiver:

25 . The failure of Owner or Tenant to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this lease, or of any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Owner of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach, and no provision of this lease shall be deemed to have been waived by Owner unless such waiver be in writing signed by Owner. No payment by Tenant, or receipt by Owner, of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Owner may accept such check or payment without prejudice to Owner’s right to recover the balance of such rent or pursue any other remedy in this lease provided. All checks tendered to Owner as and for the rent of the demised premises shall be deemed payments for the account of Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be deemed to operate as an attornment to Owner by the payor of such rent, or as a consent by Owner to an assignment or subletting by Tenant of the demised premises to such payer, or as a modification of the provisions of this lease. No act or thing done by Owner or Owner’s agents during the term hereby demised shall be deemed an acceptance of a surrender of said premises, and no agreement to accept such surrender shall be valid unless in writing signed by Owner. No employee of Owner or Owner’s agent shall have any power to accept the keys of said premises prior to the termination of the lease, and the delivery of keys to any such agent or employee shall not operate as a termination of the lease or a surrender of the demised premises.

   

Waiver of Trial by Jury:

26 . It is mutually agreed by and between Owner and Tenant that the respective parties hereto 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 (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with this lease, the relationship of Owner and Tenant, Tenant’s use of or occupancy of demised premises, and any emergency statutory or any other statutory remedy. It is further mutually agreed that in the event Owner commences any proceeding or action for possession, including a summary proceeding for possession of the demised premises, Tenant will not interpose any counterclaim, of whatever nature or description, in any such proceeding, including a counterclaim under Article 4, except for statutory mandatory counterclaims.

   

Inability to Perform:

27 . 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 Owner is unable to fulfill any of its obligations under this lease, or to supply, or is delayed in supplying, any service expressly or impliedly to be supplied, or is unable to make, or is delayed in making, any repairs, additions, alterations or decorations, or is unable to supply, or is delayed in supplying, any equipment, fixtures or other materials. If Owner is prevented or delayed from doing so by reason of strike or labor troubles, or any cause whatsoever beyond Owner’s sole control including, but not limited to, government preemption or restrictions, or by reason of any rule, order or regulation of any department or subdivision thereof of any government agency, or by reason of the conditions which have been or are affected, either directly or indirectly, by war or other emergency.

 

 
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Bills and Notices:

28 . Except as otherwise in this lease provided, any notice, statement, demand or other communication required or permitted to be given, rendered or made by either party to the other, pursuant to this lease or pursuant to any applicable law or requirement of public   authority, shall be in writing (whether or not so stated elsewhere in this lease) and shall be deemed to have been properly given, rendered or made, if sent by registered or certified mail (express mail, if available), return receipt requested, or by courier guaranteeing overnight delivery and furnishing a receipt in evidence thereof, addressed to the other party at the address hereinabove set forth (except that after the date specified as the commencement of the term of this lease, Tenant’s address, unless Tenant shall give notice to the contrary, shall be the building), and shall be deemed to have been given, rendered or made (a) on the date delivered, if delivered to Tenant personally, (b) on the date delivered, if delivered by overnight courier, (c) on the date which is two (2) days after being mailed, or (d) in the event of a failure to deliver by reason of changed address of which no notice was given or refusal to accept delivery, as of the date of such failure or refusal as evidenced by a written receipt therefore from such delivery service. Either party may, by notice as aforesaid, designate a different address or addresses for notices, statements, demand or other communications intended for it. Notices given by Owner’s managing agent shall be deemed a valid notice if addressed and set in accordance with the provisions of this Article. At Owner’s option, notices and bills to Tenant may be sent by hand delivery. The parties agree that copies of all notices, requests, demands or other communications sent to Owner shall simultaneously be sent to Kramer Levin Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New York 10036, Attention: James P. Godman, Esq., and copies of all such communication sent to Tenant shall simultaneously be sent to Greenberg Traurig, P.A., 401 East Las Olas Blvd., Fort Lauderdale, Florida 33301, Attention: Bruce I. March.

   

Water Charges:

29 . If Tenant requires, uses or consumes water for any purpose in addition to ordinary lavatory purposes (of which fact Owner shall be the sole judge) Owner may   install a water meter and thereby measure Tenant’s water consumption for all purposes. Tenant shall pay Owner for the cost of the meter and the cost of the installation. Throughout the duration of Tenant’s occupancy, Tenant shall keep said meter and installation equipment in good working order and repair at Tenant’s own cost and expense. In the event Tenant fails to maintain the meter and installation equipment in good working order and repair (of which fact Owner shall be the sole judge) Owner may cause such meter and equipment to be replaced or repaired, and collect the cost thereof from Tenant as additional rent. Tenant agrees to pay for water consumed, as shown on said meter as and when bills are rendered, and in the event Tenant defaults in the making of such payment, Owner may pay such charges and collect the same from Tenant as additional rent. Tenant covenants and agrees to pay, as additional rent, the sewer rent, charge or any other tax, rent or levy which now or hereafter is assessed, imposed or a lien upon the demised premises, or the realty of which they are a part, pursuant to any law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, the water system or sewage or sewage connection or system. If the   building, the demised premises, or any part thereof, is supplied with water through a meter through which water is also supplied to other premises, Tenant shall pay to Owner, as additional rent,  on the first day of each month, 100% of the total meter charges as Tenant’s portion. Independently of, and in addition to, any of the remedies reserved to Owner hereinabove or elsewhere in this lease, Owner may sue for and collect any monies to be paid by Tenant, or paid by Owner, for any of the reasons or purposes hereinabove set forth.

 

 
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Sprinklers:

30 . Anything elsewhere in this lease to the contrary notwithstanding, if the New York Board of Fire Underwriters or the New York Fire Insurance Exchange or any bureau, department or official of the federal, state or city government recommend or require the installation of a sprinkler system, or that any changes, modifications, alterations, or additional sprinkler heads or other equipment be made or supplied in an existing sprinkler system by reason of Tenant’s business, the location of partitions, trade fixtures, or other contents of the demised premises, or for any other reason, or if any such sprinkler system installations, modifications, alterations, additional sprinkler heads or other such equipment, become necessary to prevent the imposition of a penalty or charge against the full allowance for a sprinkler system in the fire insurance rate set by said Exchange or any other body making fire insurance rates, or by any fire insurance company, Tenant shall, at Tenant’s expense, promptly make such sprinkler system installations, changes, modifications, alterations, and supply additional sprinkler heads or other equipment as required, whether the work involved shall be structural or non-structural in nature. Tenant shall promptly pay to Owner as additional rent as and when billed by Owner, the contract price for sprinkler supervisory service.

   

Cleaning:

31 . Tenant shall, at Tenant’s expense, keep the demised premises, including the windows, clean and in order, to the reasonable satisfaction of Owner, and for that purpose shall employ person or persons, or corporations approved by Owner. Owner reserves the right to stop service of the heating, elevator, plumbing and electric systems, when necessary, by reason of accident or emergency, or for repairs, alterations, replacements or improvements, which in the judgment of Owner are desirable or necessary to be made, until said repairs, alterations, replacements or improvements shall have been completed. If the building of which the demised   premises are   a part supplies manually operated elevator service, Owner may proceed diligently with alterations necessary to substitute automatic control elevator service without in any way affecting the obligations of Tenant hereunder.

 

 
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Security:

32 . Tenant has deposited with Owner the sum of $43,333.34 as security for the faithful performance and observance by Tenant of the terms, provisions and conditions of this lease. It is agreed that in the event Tenant defaults in respect of any of the terms, provisions and conditions of this lease, including, but not limited to, the payment of rent and additional rent. Owner may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent, or any other sum as to which Tenant is in default, or for any sum which Owner may expend, or may be required to expend, by reason of Tenant’s default in respect of any of the terms, covenants and conditions of this lease, including but not limited to, any damages or deficiency in the re-letting of the demised premises, whether such damages or deficiency accrued before or after summary proceedings or other re-entry by Owner. In the case of every such use, application or retention, Tenant shall, within five (5) days after demand, pay to Owner the sum so used, applied or retained which shall be added to the security deposit so that the same shall be replenished to its former amount. In the event that Tenant shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this lease, the security shall be returned to Tenant after the date fixed as the end of the lease, and after delivery of entire possession of the demised premises to Owner. In the event of a sale of the land and building or leasing of the building, of which the demised premises form a part, Owner shall have the right to transfer the security to the vendee or lessee, and Owner shall thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the new Owner solely for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or assignment made to the security to a new Owner. Tenant further covenants that it will not assign or encumber, or attempt to assign or encumber, the monies deposited herein as security, and that neither Owner nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.

   

Captions:

33 . The Captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this lease nor the intent of any provision thereof.

   

Definitions:

34 . The term “Owner” as used in this lease means only the owner of the fee or of the leasehold of the building, or the mortgagee in possession for the time being, of the land and building (or the owner of a lease of the building or of the land and building) of which the demised premises form a part, so that in the event of any sale or sales or conveyance, assignment or transfer of said land and building or of said lease, or in the event of a lease of such building, or of the land and building, the said Owner shall be and hereby is entirely freed and relieved of all covenants and obligations of Owner hereunder, and it shall be deemed and construed without further agreement between the parties or their successors in interest, or between the parties and the purchaser, grantee, assignee or transferee at any such sale, or the said lessee of the building, or of the land and building, that the purchaser or the lessee of the building has assumed and agreed to carry out any and all covenants and obligations of Owner hereunder. The words “re-enter” and “re-entry” as used in this lease are not restricted to their technical legal meaning. The term “rent” includes the annual rental rate whether so expressed or expressed in monthly installments, and “additional rent.” “Additional rent” means all sums which shall be due to Owner from Tenant under this lease, in addition to the annual rental rate. The term “business days” as used in this lease, shall exclude Saturdays, Sundays and all days observed by the State or Federal Government as legal holidays. Wherever it is expressly provided in this lease that consent shall not be unreasonably withheld, such consent shall not be unreasonably delayed.  “Include,” “including,” and “included” and words of similar import are deemed followed by “without limitation.” “Or” is not exclusive. “Shall” is mandatory; “may” is permissive.

 

 
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Adjacent Excavation Shoring:

35 . If an excavation shall be made upon land adjacent to the demised premises, or shall be authorized to be made, Tenant shall afford to the person causing or authorized to cause such excavation, a license to enter upon the demised premises for the purpose of doing such work as said person shall deem necessary to preserve the wall or the building, of which demised premises form a part, from injury or damage, and to support the same by proper foundations, without any claim for damages or indemnity against Owner, or diminution or abatement of rent.

   

Rules and Regulations:

36 . Tenant and Tenant’s servants, employees, agents, visitors, and licensees shall observe and comply strictly with, the Rules and Regulations annexed hereto and such other and further reasonable Rules and Regulations as Owner or Owner’s agents may from time to time adopt. Notice of any additional Rules or Regulations shall be given in such manner as Owner may elect. Nothing in this lease contained shall be construed to impose upon Owner any duty or obligation to enforce the Rules and Regulations or terms, covenants or conditions in any other lease, as against any other tenant, and Owner shall not be liable to Tenant for violation of the same by any other tenant, its servants , employees, agents, visitors or licensees. Owner agrees that the rules and regulations shall not, in any material respect, alter or modify any of Tenant’s rights or privileges under the Lease and all such rules and regulations shall be applied by Landlord in a nondiscriminatory manner.

   

Glass:

37 . Tenant shall replace, at the expense of Tenant, any and all plate and other glass damaged or broken from any cause whatsoever in and about the demised premises. Tenant shall insure, and keep insured, at Tenant’s expense, all plate and other glass in the demised premises for and in the name of Owner.

   

Estoppel Certificate:

38 . See Rider.

   

Directory Board Listing:

39 . If, at the request of, and as accommodation to, Tenant, Owner shall place upon the directory board in the lobby of the building, one or more names of persons or entities other than Tenant, such directory board listing shall not be construed as the consent by Owner to an assignment or subletting by Tenant to such persons or entities.

   

Successors and Assigns:

40 . The covenants, conditions and agreements contained in this lease shall bind and inure to the benefit of Owner and Tenant and their respective heirs, distributees, executors, administrators, successors, and except as otherwise provided in this lease, their assigns. Tenant shall look only to Owner’s estate and interest in the land and building for the satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process) against Owner in the event any default by Owner hereunder, and no other property or assets   of such Owner (or any partner, member, officer or director thereof, disclosed or undisclosed) shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under, or with respect to, this lease, the relationship of Owner and Tenant hereunder, or Tenant’s use and occupancy of the demised premises.

 

SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.

 

 
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In Witness Whereof, Owner and Tenant have respectively signed and sealed this lease as of the day and year first above written.

 

 

CAROLYN HOLDINGS LLC

 

 

By:   /s/ Jonathan Greenhut                                                        

Jonathan Greenhut, Member

   
   
 

TWINLAB CONSOLIDATED HOLDINGS, INC.

 

 

By:  /s/ Alan S. Gever                                                                  

        Alan S. Gever

        CFO / COO

 

 
-19-

 

 

ACKNOWLEDGMENT

 

STATE OF NEW YORK,

 

SS:

 

COUNTY OF

 

On the 1st day of June in the year 2017 before me, the undersigned; a Notary Public in and for said State, personally appeared Jonathan Greenhut, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument:

 

/s/ Michael J. Scagluso                         

NOTARY PUBLIC

 

ACKNOWLEDGMENT

STATE OF NEW YORK,

 

SS:

 

COUNTY OF

 

On the 1st day of June in the year 2017 before me, the undersigned; a Notary Public in and for said State, personally appeared Alan S. Gever, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument:

 

/s/ Ann B. Wagner                                

NOTARY PUBLIC

 

 
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IMPORTANT – PLEASE READ

 

PLEASE READ RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 36.

 

1.       The sidewalks, entrances, driveways, passages, courts, elevators, vestibules, stairways, corridors or halls shall not be obstructed or encumbered by Tenant or used for any purpose other than for ingress or egress from the demised premises and for delivery of merchandise and equipment in a prompt and efficient manner, using elevators and passageways designated for such delivery by Owner. There shall not be used in any space, or in the public hall of the building, either by Tenant or by jobbers or others in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires and sideguards. If said premises are situated on the ground floor of the building, Tenant shall further, at Tenant’s expense, keep the sidewalk and curb in front of said premises clean and free from ice, snow, dirt and rubbish.

 

2.      The water and wash closest and plumbing fixtures shall not be used for any purposes other than those for which they were designed or constructed, and no sweepings, rubbish, rags, acids or other substance shall be deposited therein, and the expense any breakage, stoppage, or damage resulting from the violation of this rule shall be borne by Tenant, whether or not caused by Tenant, its clerks, agents, employees or visitors.

 

3.      No carpet, rug or other article shall be hung or shaken out of any window of the building; and Tenant shall not sweep or throw, or permit to be swept or thrown substances from the demised premises, any dirt or other substance into any of the corridors of halls, elevators, or out of the doors or windows or stairways of the building, and Tenant shall not use, keep, or permit to be used or kept, any foul or noxious gas or substance in the demised premises, or permit or suffer the demised premises to be occupied or used in a manner offensive or objectionable to Owner or other occupants of the buildings by reason of noise, odors, and or vibrations, or interfere in any way, with other tenants or those having business therein, nor shall any bicycles, vehicles, animals, fish or birds be kept in or about the building. Smoking or carrying lighted cigars or cigarettes in the elevators of the building is prohibited.

 

4.      No awnings or other projections shall be attached to the outside walls of the building without the prior written consent of Owner.

 

5.      No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by Tenant on any part of the outside of the demised premises or the building, or on the inside of the demised premises if the same is visible from the outside of the demised premises, without the prior written consent of Owner. In the event of the violation of the foregoing by Tenant, Owner may remove same without any liability, and may charge the expense incurred by such removal to Tenant. Interior signs on doors and directory tablet shall be inscribed, painted, or affixed at the expense of Tenant, and shall be of a size, color and style acceptable to Owner.

 

 
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6.      Tenant shall not mark, paint, drill into, or in any way deface any part of the demised premises or the building of which they form a part. No boring, cutting, or stringing of wires shall be permitted, except with the prior written consent of Owner, and as Owner may direct. Tenant shall not lay linoleum, or other similar floor covering so that the same shall come in direct contact with the floor of the demised premises, and, if linoleum or other similar floor covering is desired to be used, an interlining of builder’s deadening felt shall be first affixed to the floor, by a paste or other material, soluble in water; the use of cement or other similar adhesive material being expressly prohibited.

 

7.      No additional locks or bolts of any kind shall be placed upon any of the doors or windows by Tenant, nor shall any changes be made in existing locks or mechanism thereof. Tenant must, upon the termination of its tenancy, restore to Owner all keys of stores, offices and toilet rooms, either furnished to, or otherwise procured by, Tenant, and in the event of the loss of any keys, so furnished, Tenant shall pay to Owner the cost thereof.

 

8.      Freight, furniture, business equipment, merchandise and bulky matter of any description shall be delivered to and removed from the demised premises only on the freight elevators and through the service entrances and corridors; and only during hours, and in a manner approved by Owner. Owner reserves the right to inspect all freight to be brought into the building, and to exclude from the building all freight which violates any of these Rules and Regulations of the lease, of which these Rules and Regulations are a part.

 

9.      Tenant shall not obtain for use upon the demised premises ice, drinking water, towel and other similar services, or accept barbering or bootblacking services in the demised premises, except from persons authorized by Owner, and at hours and under regulations fixed by Owner. Canvassing, soliciting and peddling in the building is prohibited and Tenant shall cooperate to prevent the same.

 

10.     Owner shall have the right to prohibit any advertising by Tenant which in Owner’s opinion, tends to impair the reputation of the building or its desirability as a loft building, and upon written notice from Owner, Tenant shall refrain from or discontinue such advertising.

 

11.     Tenant shall not bring, or permit to be brought or kept, in or on the demised premises, any inflammable, combustible, explosive, or hazardous fluid, material, chemical or substance, or cause or permit any odors of cooking or other processes, or any unusual or other objectionable odors, to permeate in, or emanate from, the demised premises.

 

 
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12.     Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at its sole cost and expense, to comply with all present and future laws, orders, and regulations, of all state, federal, municipal, and local governments, departments, commissions and boards regarding the collection, sorting, separation and recycling of waste products, garbage, refuse and trash. Tenant shall sort and separate such waste products, garbage, refuse and trash into such categories as provided by law. Each separately sorted category of waste products, garbage, refuse and trash shall be placed in separate receptacles reasonably approved by Owner. Tenant shall remove, or cause to be removed by a contractor acceptable to Owner, at Owner’s sole discretion, such items as Owner may expressly designate. (2) Owner’s Rights in Event of Noncompliance. Owner has the option to refuse to collect or accept from Tenant waste products, garbage, refuse or trash (a) that is not separated and sorted as required by law or (b) which consists of such items as Owner may expressly designate for Tenant’s removal, and to require Tenant to arrange for such collection at Tenant’s sole cost and expense, utilizing a contractor satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties or damages that may be imposed on Owner of Tenant by reason of Tenant’s failure to comply with the provisions of this Building Rule 12, and, to the fullest extent permitted by law, at Tenant’s sole cost and expense, shall indemnify, defend and hold Owner harmless (including reasonable legal fees and expenses) from and against any actions, claims, penalties, fines, damages, liabilities and suits arising from such noncompliance, utilizing counsel reasonably satisfactory to Owner. The indemnification obligation of Tenant as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, or other employee benefit acts. This provision shall survive the expiration or earlier termination of this Lease.

 

 

-23-

Exhibit 10.169

 

Rider to the Lease dated as of June 2, 2017, by and between CAROLYN HOLDINGS, LLC, as Owner, and TWINLAB CONSOLIDATED HOLDINGS, INC., as Tenant.

 

41.

Inconsistencies.

 

In the event of any conflict or inconsistency between the provisions of this Rider and the printed form of this Lease, the provisions of this Rider shall govern and control. Nevertheless, to the greatest extent possible, the provisions of this Rider shall be construed to be in addition to, and not in limitation of, the provisions of the printed form of this Lease.

 

42.

Term.

 

The term of this Lease shall commence on June 2, 2017 (the “Commencement Date”), and expire on June 1, 2021 (the “Term”), or until such Term shall sooner cease and expire as hereinafter provided. The first year of the Term and the second year of the Term may be referred to, respectively, as the “First Lease Year,” and “Second Lease Year” and so forth for the following years, and each such period may be referred to as a “Lease Year.”

 

43.

Rent.

 

a.     During the Term of this Lease, Tenant shall pay to Owner, without any set-off or deduction whatsoever, in advance on the first day of each and every month of the Term, fixed rent (also referred to as “Minimum Base Rent”) at the following annual rates:

 

i.     during the First Lease Year commencing on the Commencement Date, Two Hundred Sixty Thousand and 00/100 Dollars ($260,000.00) in equal monthly installments of Twenty One Thousand Six Hundred Sixty Six and 67/100 Dollars ($21,666.67) each;

 

ii.     during the Second Lease Year, commencing on the first day of the Second Lease Year, Two Hundred Sixty Seven Thousand Eight Hundred and 00/100 Dollars ($267,800.00) in equal monthly installments of Twenty Two Thousand Three Hundred Sixteen and 67/100 Dollars ($22,316.67) each.

 

iii.     during the Third Lease Year, commencing on the first day of the Third Lease Year, Two Hundred Seventy-five Thousand Eight Hundred Thirty-four and 00/100 Dollars ($275,834.00) in equal monthly installments of Twenty Two Thousand Nine Hundred Eighty Six and 17/100 Dollars ($22,986.17) each.

 

iv.     during the Fourth Lease Year, commencing on the first day of the Fourth Lease Year, Two Hundred Eighty-four Thousand One Hundred Nine and 00/100 Dollars ($284,109.00) in equal monthly installments of Twenty Three Thousand Six Hundred Seventy Five and 75/100 Dollars ($23,675.75) each.

 

b.     All payments of rent shall be made by Tenant to Owner without notice or demand, at such place as Owner may from time to time designate in writing. The extension of time for payment of any installment of rent, or the acceptance by Owner of any money other than current legal tender of the United States of America shall not be deemed a waiver of the rights of Owner to insist upon having all other payments of rent made in the manner and at the time herein specified.

 

 
 

 

 

c.     All charges, taxes and assessments, together with such other sums as are payable by Tenant pursuant to the terms of this Lease, shall constitute additional rent, may be referred to as rent, shall be due and payable as rent under this Lease at the time and in the manner herein provided, and in the event of the nonpayment of same by Tenant, Owner shall have all the rights and remedies with respect thereto as Owner has for the nonpayment of the rent herein.

 

d.     Except as may expressly be provided in this Lease, this Lease, including the rent herein specified, shall be absolutely net to Owner, and all costs, expenses and obligations of every kind relating to or arising in connection with the demised premises which may arise or become due during the Term of this Lease shall be paid by Tenant.

 

e.     In the event Tenant shall fail to pay in good funds any installment of minimum fixed rent or any additional rent on or before the seventh (7th) day after same is due, in order to partially defray Owner’s administrative expenses resulting therefrom which Tenant acknowledges shall be difficult to measure, Tenant shall pay to Owner a late charge of $75.00 per day computed from the first day on which said rent or additional rent shall be due until the date on which payment is made. This late charge shall be deemed additional rent and shall, at Owner’s option, be added to the rent for the month in which the rent shall be due. The demand for and collection of the aforesaid late charges shall in no way be construed as a waiver of any and all remedies that Owner may have, either by summary proceedings or otherwise, in the event of a default in payment of rent. Notwithstanding anything herein to the contrary, Tenant shall not be obligated to pay any late charge or interest the first two (2) times in any calendar year Tenant is late in payment of rent, provided Tenant makes any such late payment within five (5) business days of written notice from Owner.

 

f.     In the event any check delivered by Tenant to Owner shall be dishonored for any reason when presented for payment, in addition to any other charges for which Tenant may be liable under this Lease on account of the non-payment of the item of rent for which the check was delivered, Tenant shall pay to Owner One Hundred Dollars ($100.00) on each occasion a check shall be dishonored. This charge shall be deemed additional rent and shall, at Owner’s option, be added to the rent for the month in which the rent shall be due. The demand for and collection of the aforesaid charges shall in no way be construed as a waiver of any and all remedies that Owner may have, either by summary proceedings or otherwise, in the event of a default in payment of rent.

 

 
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44.

Taxes.

 

a.     For purposes of the within Lease,

 

i.     “Taxes” shall mean all taxes, assessments, special or otherwise, excises, levies, license and permit fees, sewer rents, rates and charges, water charges, county taxes, school taxes, town taxes, village taxes, or any other governmental charge of a similar or dissimilar nature, whether general, special, ordinary or extraordinary, foreseen or unforeseen, of any kind or nature whatsoever, which may be levied, assessed, confirmed, imposed upon, grow out of, become due or payable out of or in respect of the tax lot of which the demised premises is part, including all improvements thereon, or any part thereof or any appurtenance thereof, by any taxing authority having jurisdiction thereover. The foregoing, however, shall not include the federal or state income taxes of the Owner (except as provided hereinbelow due to a change in the method of taxation or taxing authority). If at any time during the Term of this Lease the methods of taxation shall be altered so that in lieu of or as an addition to the whole or any part of the taxes, assessments, levies, impositions, or charges now or hereafter levied, assessed or imposed, there shall be levied, assessed or imposed a tax, assessment, levy, imposition, charge or license fee, however described or imposed, then all such taxes, assessments, levies, impositions, charges or license fees shall be deemed to be Taxes. “Taxes” shall also include all taxes and assessments levied, assessed or imposed at any time by any governmental authority in connection with the receipt of income or rents from the demised premises to the extent same shall be in lieu of, in addition to, or a substitute for, all or a portion of any of the aforesaid taxes or assessments upon or against the demised premises or the tax lot of which the demised premises is part, including any improvements thereon. If, due to a future change in the method of taxation or in the taxing authority, a franchise, license, income, transit, profit, or other tax, fee, or governmental imposition, however designated, shall be levied, assessed or imposed against Owner, the lands or buildings, or the rent or profit therefrom, in lieu of, or in addition to, or as a substitute for, all or any part of said Taxes, then such franchise, license, income, transit, profit, or other tax, fee, or governmental imposition shall be deemed to be included within the definition of Taxes for the purpose hereof.

 

ii.     “Tax” shall mean any of the Taxes.

 

iii.     “Tax Period” shall mean the one (1) year period for which a Tax is assessed.

 

b.     Tenant shall pay to Owner, within ten (10) days after demand, all Taxes assessed for any period falling wholly or partially within the Term of this Lease; Taxes shall be apportioned by the Owner for the periods falling partially within and partially without the Term of this Lease on the basis of the lien period for which assessed.

 

c.     At Owner’s option, Tenant shall pay to Owner, with each monthly installment of minimum fixed rent, commencing with the next monthly installment of minimum fixed rent, a sum equal to one-twelfth (1/12) of all the annual amount of each Tax next coming due as determined by Owner, which such sums shall be adjusted by Owner periodically to reflect actual increases or decreases in such Tax next coming due, so that on the next date on which any installment of such Tax shall be due, Owner shall have previously collected from Tenant sufficient sums on account of such Tax to enable Owner to pay as and when same is due. If the actual amount of a Tax is unknown, then Owner may estimate the amount of the monthly installment on account of such Tax based upon the amount of the Tax assessed for the immediately preceding period and, upon discovering the actual amount of such Tax, Owner may make appropriate adjustments to the amount of such monthly installments. If at any time Owner shall determine that the amount collected or estimated to be collected from Tenant on account of the next installment of a Tax shall be deficient, then Tenant shall deposit with Owner within ten (10) days of demand therefor, the amount of such deficiency.

 

 
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d.     Tenant shall not institute or prosecute any proceeding, action or claim seeking reduction of the assessed value, tax rate or taxes pertaining to the property of which the demised premises is part. Nothing herein contained shall be construed to obligate Owner to commence, prosecute or continue any Tax protest or proceeding and the terms and provisions of the resolution thereof, whether by judgment, settlement or otherwise, shall be in the sole discretion of the Owner. In the event Owner shall recover any Taxes for any period during the Term, provided that no event has occurred or is continuing which either immediately or with the lapse of time, or with notice, or both constitutes a default under this Lease, Owner shall pay to Tenant from the recovery after deduction of all costs and expenses, including attorneys’ fees, the net amount of the recovery to the extent Tenant has previously paid same; if such recovery covers a period falling partially within and partially without the Term, then the amount payable to Tenant hereunder shall be apportioned on such basis. A statement of Owner’s tax certiorari counsel of the amounts due Tenant hereunder shall be binding and conclusive.

 

e.     Tenant shall also pay to Owner, promptly upon demand and before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof, all taxes, excises, levies, license and permit fees and other governmental charges, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever, which at any time during the Term of this Lease may have been or may be assessed, levied, confirmed, imposed upon, or grow or become due or payable out of or in respect of, or become a lien on (1) the rent and income received by Tenant from any subtenant or other occupants of the demised premises, (2) franchises which may be appurtenant to the demised premises, (3) this transaction, or (4) any document to which Tenant is party creating or transferring an interest or estate in the demised premises.

 

f.     Tenant shall be responsible for and shall pay, before delinquency, all municipal, county, state and federal taxes assessed during the Term of this Lease against any personal property of any kind owned by or placed in, upon or about the demised premises by Tenant.

 

45.

Operating Expenses

 

a.     Tenant shall pay Owner, as additional rent, within ten (10) days after demand therefor, all Operating Expenses.

 

b.     For the purposes of this Lease, “Operating Expenses” shall include any and all costs and expenses of every kind and nature, whether foreseen or unforeseen, required or desired, suggested or recommended, as may be paid or incurred by Owner, in its commercial reasonable discretion, during the Term of this Lease (including appropriate reserves) in connection with the operation, maintenance, repair, replacement or improvement of the demised premises, including the costs and expenses associated with parking areas, driveways, pavements, curbs, sidewalks, loading docks, landscaping, and pavements, exterior lighting, utility, sewer, drainage, cesspool and water lines, storm drains and storm water controls, facias, leaders, gutters, sprinkler and fire alarm systems, facades, signs, pylons, walls, foundations, roofs, decking, cleaning, painting, repaving, paving, sweeping, striping, sanding, removing, planting, equipment, tools, machinery and supplies, wages and benefits of workers, insurance, and fees, conformance and compliance with statutes, ordinances, rules, regulations, and orders of all authorities having jurisdiction, and fire and all-risk property, general liability, rental interruption, workers compensation and disability insurances.

 

 
-4-

 

 

c.     At Owner’s option Tenant shall pay with each monthly installment of minimum fixed rent one-twelfth (1/12) of annual Operating Expenses; the annual Operating Expenses may be estimated by Owner based upon prior years’ Operating Expenses, adjusted to include prospective expenses that are anticipated to be incurred during the current year. Such estimate shall be adjusted by Owner periodically as Owner deems necessary to reflect increases or decreases in the Operating Expenses; once a year (which may or may not coincide with the anniversary of the Commencement Date), and upon termination of this Lease, Owner shall calculate the difference between the actual Operating Expenses for the immediately preceding year (or portion thereof immediately preceding the termination of this Lease) and the sums paid by Tenant for such Operating Expenses and shall either credit Tenant for any excess paid provided Tenant is not in default of this Lease or render an invoice to Tenant for such deficiency due which shall be paid by Tenant to Owner ten (10) days thereafter.

 

46.

Owner’s Insurance.

 

a.     Owner shall, during the entire Term of this Lease, provide and keep in force for the benefit of Owner and Tenant, casualty, fire and extended coverage, vandalism, malicious mischief, water damage and sprinkler leakage insurance on all of the demised premises in an amount equal to 100% of the replacement value thereof, without co-insurance. The proceeds of such policies shall be used by Owner in repairing and restoring the items covered. The policy must include a waiver of subrogation in favor of the Tenant. Tenant shall reimburse Owner promptly on demand an amount equal to the Owner’s costs and expenses of all insurance maintained with respect to the demised premises, including all risk casualty insurance with extended coverage and liability coverage.

 

b.     If Owner should so request, Tenant shall deposit with Owner all amounts necessary to procure such insurance at least thirty days in advance of the date insurance payments are due.

 

c.     Tenant shall cooperate with Owner, and any mortgagee, in connection with the collection of any insurance monies that may be due in the event of loss and shall execute and deliver instruments that may be required for the purpose of facilitating the recovery by Owner or a mortgagee of any such insurance monies.

 

d.     Nothing herein contained shall be construed to relieve Tenant of its responsibility for increases in insurance costs pursuant to paragraph 6 (entitled “Requirements of Law, Fire Insurance, Floor”) hereof.

 

47.

Tenant’s Insurance.

 

a.     Tenant shall, during the entire Term of this Lease, provide and keep in force for the benefit of Owner and Tenant, and others hereafter designated by Owner from time to time, to the satisfaction of Owner, the following policies of insurance covering the demised premises, including all fixtures, appurtenances and installations of personal property thereat:

 

 
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i.     Comprehensive general liability insurance fully protecting and naming Owner and Tenant, and such other persons as Owner may designate from time to time, as additional named insureds, including personal injury liability coverage, broad form property damage coverage, and broad form blanket contractual liability coverage, with limits of not less than Five Million Dollars ($5,000,000.00) per occurrence and in the aggregate. Tenant shall name Landlord as additional insured via the CG 2010 (07/14) additional insured endorsement.

 

ii.     Fire and extended coverage, vandalism, malicious mischief, water damage and sprinkler leakage insurance on all of Tenant’s personal property, fixtures, improvements, additions, betterments, repairs, alterations, and the like, in an amount equal to 100% of the replacement value thereof, without co-insurance. The proceeds of such policies shall be held in trust by Tenant for use in repairing and restoring the items covered. The policy must include a waiver of subrogation in favor of the Landlord.

 

iii.     Rent or rental value insurance against loss of rent or rental value due to fire, or other casualty, including extended coverage endorsement, in an amount equal to one (1) year of annual rent, including all items of additional rent.

 

iv.     Workers Compensation Insurance including employer’s liability insurance as required by statute. It must include a waiver of subrogation in favor of Landlord.

 

v.     If the Tenant will be doing any manufacturing, storing of raw or finished product, and/or maintaining above ground, or underground storage tanks, the Tenant shall maintain environmental liability coverage with a limit of $3,000,000. The maximum retention allowable is $25,000 per claim. Upon termination of this Lease, the Tenant shall purchase an extended reporting period of no less than three years. Tenant shall name Landlord as additional insured via the CG 2010 (07/14) additional insured endorsement.

 

vi.     Such other types of insurance and such additional amounts of insurance as, in Owner’s reasonable judgment, are necessitated by good business practice.

 

b.     During the period of the performance of any Work (as defined herein), Tenant shall provide and keep in force for the benefit of Owner and others hereafter named by Owner from time to time, insurance against loss or damage by fire, lighting and other casualties customarily insured against, with a uniform standard extended coverage endorsement, including insurance covering improvements under construction, such insurance to be on an “all risk”, non-reporting basis and in an amount not less than the full replacement value of the demised premises (including all fixtures therein, appurtenances and improvements thereto), which such policy shall name as a loss payee such persons as Owner may designate from time to time.

 

c.     All insurance shall contain endorsements to the effect that such policies will not be modified, altered or canceled without at least thirty (30) days prior written notice to Owner, except in the instance of non-payment, without at least ten (10) days prior written notice to Owner, and that the act or omission of Tenant will not invalidate the policy as to Owner or such mortgagee.

 

d.     All policies shall be taken in the amounts herein provided with responsible companies authorized to do business in the State of New York which have ratings by Best’s Insurance Guide of A+:XV or higher, shall be in such form and of such content as Owner may approve, and shall be considered primary in relation to any insurance policies maintained by Owner. Upon request from time to time, Tenant shall deliver to Owner a true and complete copy of each such policy.

 

 
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e.     The insurance required of Tenant hereunder may be effected by blanket policies issued to Tenant covering the demised premises and other properties owned or leased by Tenant, provided that the policies otherwise comply with the provisions hereof and allocate to the demised premises the specified coverage, without possibility of reduction or coinsurance by reason of, or damage to, any other premises named therein, and if the insurance required hereby shall be effected by any such blanket policies, Tenant shall furnish to Owner certificates of insurance satisfactory to Owner, showing the insurance afforded by such policies applicable to the demised premises. Upon request from time to time, Tenant shall deliver to Owner a true and complete copy of each such policy.

 

f.     All policies shall be obtained by Tenant and certificate thereof shall be delivered to Owner prior to the commencement of the Term hereof, except in the instance of the insurance to be maintained pursuant to paragraph (b) above, ten (10) days prior to the commencement of the Work, together with evidence of the payment of premiums by stamping or otherwise. Upon request of Owner from time to time, Tenant shall deliver to Owner true, accurate and complete original counterparts of each such policy.

 

g.     Thirty (30) days prior to the expiration of any policy or policies of such insurance, Tenant shall pay the premium of renewal insurance and shall deliver to Owner, within the said period of time, certificates for the renewal policies with evidence of payment of premiums by stamping or otherwise. If such premiums or any of them shall not be so paid and the certificates shall not be so delivered to Owner at least twenty (20) days prior to the expiration of any of such policies, Owner may, upon five (5) days written notice (or no notice upon such ten (10) days written notice of Tenant’s non-payment as set forth in subsection (c) above), procure and/or pay for the same, and the amount so paid by Owner, with interest thereon at the Interest Rate (as defined herein) from the date of payment, shall become due and payable by Tenant immediately as additional rent, it being agreed that payment by Owner of any such premium shall not be deemed to waive or release the default in payment thereof by Tenant or the right of Owner to take such action as may be permissible hereunder as in the case of default in the payment of rent.

 

h.     Tenant shall not violate or permit to be violated any of the conditions or provisions of any said policies or any insurance policies maintained by Owner and Tenant shall comply with the requirements of any company issuing said insurance, whether maintained by Owner or Tenant, in order to keep said insurance in full force and effect. In the event that any policy required to be maintained by Tenant shall be canceled for non-compliance by Tenant, Tenant shall procure forthwith a substitute policy in form and content satisfactory to Owner.

 

48.

Utilities.

 

a.     Tenant shall, at its sole cost and expense, pay, prior to the imposition of any penalty or late charge, all charges for gas, oil, fuel, steam, sewer, electricity, telephone, heat, air conditioning, ventilation, refuse pickup, janitorial and maintenance service, security and all other utilities, materials, supplies and services consumed, furnished, used or made available in, at or upon the demised premises during the Term of this Lease, together with all taxes thereon, if any. Should Owner elect to supply any utility or service used or consumed in or at the demised premises, Tenant shall pay Owner for same, promptly after demand therefor. Tenant shall keep and maintain in good repair all utility meters measuring utilities and services consumed at the demised premises. Tenant shall establish accounts in Tenant’s name with the utility companies responsible for supplying utilities to the demised premises and Tenant shall be responsible for all deposits required by the utility companies to establish such accounts.

 

 
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b.     Owner shall not be required to furnish any utility service to the demised premises, including heat, electricity, gas, oil, sewer and water; Owner shall have no responsibility for any failure in the supply of water, fuel, electricity or other utility, and there shall be no abatement in rent or any liability on the part of Owner for any failure in the supply of water, fuel, gas, electricity or other utility.

 

49.

Use and Occupancy.

 

a.     Tenant will not at any time use or occupy the demised premises in violation of this Lease or the certificate of occupancy or equivalent issued for the demised premises, nor will Tenant use or permit the use of the demised premises contrary to any covenants, easements or restrictions now of record affecting the demised premises, to any covenants, easements or restrictions hereafter of record affecting the demised premises (provided same do not materially adversely affect the use of the demised premises by Tenant for the purposes expressly permitted under this Lease), or to any applicable statute, ordinance or regulation of any federal, state, county or municipal authority having jurisdiction thereover.

 

b.     Tenant accepts the demised premises and this Lease is subject and subordinate to (1) any covenants, easements, restrictions and agreements of record and zoning regulations of the municipality within which the demised premises lies, and (2) to any covenants, easements, restrictions and agreements hereafter granted provided same do not materially adversely affect Tenant’s use or enjoyment of the demised premises. Tenant further agrees, at the request of Owner at any time during the Term hereof, to execute any and all instruments to effect subordination to any such encumbrance.

 

c.     Tenant accepts the demised premises and this Lease is subject to (1) all laws, regulations, and ordinances, including laws, regulations and ordinances relating to planning, zoning, building and environmental matters, affecting the use, occupancy, or improvement of the demised premises now or hereafter adopted or imposed by any governmental body having jurisdiction; (2) any state of facts an inspection and an accurate survey of the demised premises and the surrounding environs may reveal and any changes thereto hereafter arising; (3) violations, if any, now or hereafter existing of all governmental authorities having jurisdiction of the demised premises; Tenant represents and warrants that it has fully investigated the state of facts and circumstances pertaining to each of the foregoing. Tenant acknowledges that no representation or warranty of any kind or nature, whether express or implied, has been or shall be made by Owner or relied upon by Tenant (A) pertaining to any of the foregoing, (B) concerning the use of the demised premises, the suitability or adequacy of the demised premises for Tenant’s business or the compliance of the demised premises or the Tenant’s use thereof with any applicable law, regulation or ordinance, including any planning, zoning, building or environmental law, regulation or ordinance, or any certificate, permit or license issued or maintained or required to be issued or maintained thereunder, or (C) the existence of any certificate, permit or license required or desired to be issued or maintained by any governmental authority having jurisdiction over the demised premises, the use thereof or the occupancy thereof. Owner shall have no liability or responsibility for any matter arising out of or in connection with any of the foregoing and Tenant shall indemnify and hold harmless Owner from any claims, suits, damages, liabilities, penalties, fines and expenses arising out of or in connection with any of the foregoing. The indemnification obligation of Tenant as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, or other employee benefit acts.

 

 
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d.     Owner, without additional charge to Tenant, agrees to leave in place for use by Tenant (as a licensee during the term of this Lease) all of the existing furniture, furnishings and equipment in or at the demised premises, all as more particularly set forth in Schedule B attached hereto and made a part hereof (collectively, the “FF&E”) as of the Commencement Date. Tenant, at Tenant’s sole cost and expense, shall maintain all of the FF&E in normal operating condition and repair (ordinary wear and tear excepted) all of the FF&E to normal operating condition and not remove any FF&E from the demised premises as it exists on the Commencement Date, without prior written consent of Owner. Unless Owner and Tenant agree in writing otherwise, the FF&E is and shall remain the sole and exclusive property of Owner and Tenant shall return all of the FF&E to Owner at the end of its term in normal operating condition and repair any of the damaged FF&E (ordinary wear and tear excepted) to normal operating condition but in no event shall Tenant be required to replace any equipment that has broken down due to natural deterioration. Any new equipment purchased by Tenant shall remain Tenant’s sole property. Tenant acknowledges that no representations with respect to the condition or utility of any item of the FF&E (or its sufficiency for its intended use), has been made by Owner to Tenant, and Tenant is relying on its own inspection and investigation and agrees to accept such FF&E in its “AS IS WHERE IS” condition as of the Commencement Date. During the term of this Lease, Tenant shall be required to repair and maintain the FF&E in accordance with the provisions of this Lease. Owner shall have no liability to Tenant on account of any malfunction, stoppage, breakage or failure of any of the FF&E to perform for their intended use or for the inability of Tenant to use any of the FF&E, and Owner shall have no liability to Tenant for any loss or damage incurred by Tenant arising out of any such malfunction, stoppage, breakage, failure or the inability of use. Except for the FF&E, Owner shall have no obligation to furnish or provide any other equipment, cabling, furniture or other personal property or otherwise to the demised premises.

 

50.

Condition of Demised Premises.

 

a.     Tenant has examined the demised premises and is familiar with the physical condition thereof. Owner, and anyone in Owner’s behalf, has not made and does not make any representations, express or implied, about the demised premises as to the physical condition, expenses, operations, taxes, water, sewer charges, or the amounts thereof, the fitness for use, occupation or a particular purpose, or any other matters. Tenant accepts the demised premises in an “AS IS” condition, with all faults and without representation or warranty, express or implied (all of which Owner disclaims), including as to quality, layout, area/footage, physical condition, operation, compliance with specifications, absence of latent defects, compliance with laws and regulations (including those relating to health, safety or the environment, and the federal Americans with Disabilities Act (“ADA”) or any state or local accessibility standards), fitness for any particular use or merchantability, or any other matter whatsoever affecting or relating to the demised premises; without limiting the foregoing, Owner has not made and does not make any representation or warranty regarding the presence or absence of any hazardous materials on, under or about the demised premises or any adjacent real property or the compliance or non-compliance of the demised premises with the comprehensive environmental response, compensation and liability act, the resource conservation recovery act or any other federal, state or local statute, law, ordinance, code, rule or regulation relating to or imposing obligations, liability or standards of conduct concerning any hazardous materials, including the presence, use, transportation, storage, disposal, treatment or remediation thereof. Owner shall not be liable nor bound by any verbal or written statements, representations, real estate broker set-ups, or information pertaining to the demised premises furnished by any real estate broker, agent, employee, servant or any other person, firm or corporation.

 

 
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b.     Owner shall not be required to perform any work, supply any materials or incur any expense with respect to the demised premises.

 

c.     Tenant shall not be entitled to any abatement or reduction of rent or additional rent, or to make any claim for partial or total eviction, actual or constructive, interference with or disruption of business or use of the demised premises, loss of profits, or direct or consequential damages, by reason of or arising from any defects pertaining to the demised premises, any repairs or replacements heretofore or hereafter made, any interference with Tenant’s operations, or any other matter or thing, or cause arising from or in connection with the subject matter of this paragraph.

 

51.

Maintenance, Repairs and Replacements.

 

a.     Owner shall not be required to make any repairs, replacements or improvements of any kind upon, or to maintain, the demised premises.

 

b.     At its sole cost and expense, Tenant shall, throughout the Term of this Lease, take good care of the demised premises, the fixtures and appurtenances thereto and the parking lots and sidewalks about the demised premises, including all structures, improvements, betterments, landscaping, utility and sewage equipment, devices and lines, heating, ventilating, air conditioning equipment, fixtures and systems (together, the “HVAC Systems”), electrical, and all plumbing equipment, fixtures and systems, roof, roof decking, foundations, load bearing and non-load bearing walls, slabs, loading docks, drainage, lighting, and all appurtenances, fixtures and other facilities used or useful in connection with the use, operation or occupancy of the demised premises and all alterations and additions thereto and restorations and replacements thereof, and Tenant shall make, at its sole cost and expense, all repairs, replacements, and restorations thereto, including structural repairs, replacements and restorations, as and when appropriate or required by Owner to preserve same in good working order and condition, whether such repairs, replacements or restorations are ordinary or extraordinary or foreseen or unforeseen. For the avoidance of doubt, Tenant expressly acknowledges and agrees that Tenant shall be responsible, at Tenant’s sole cost and expense, for the maintenance, repair, and replacement of the HVAC Systems.

 

 
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c.     Tenant shall not be entitled to any abatement or reduction of rent or additional rent, or to make claim for partial or total eviction, actual or constructive, or interference with or disruption of business or use of the demised premises, or make any claim for damage to property, by reason of or arising from the condition of the demised premises at any time, any repairs or replacements made by or on behalf of Owner, or any other matter, thing, or cause, all of which are expressly waived by Tenant.

 

52.

Alterations and Changes.

 

a.     Tenant shall not make nor suffer any changes, alterations, additions or improvements, or install any fixtures or personal property or equipment in or to the demised premises (in each instance, “Work”), including readying the demised premises for Tenant’s use and occupancy, without the prior written consent of Owner, such consent not to be unreasonably withheld with respect to Nonstructural Alterations.

 

b.     Prior to Tenant commencing any Work in, at or upon the demised premises, in each instance, Tenant shall: (i) submit to Owner plans and specifications therefore (the “Plan”) and obtain Owner’s approval thereof; (ii) procure and submit to Owner all applicable permits, approvals, and the like from all governmental and quasi-governmental authorities having jurisdiction over such matters; (iii) procure from all contractors and subcontractors and submit to Owner evidence of worker’s compensation insurance and general liability and personal injury and property damage insurance in an amount not less than $2,000,000.00 combined, single occurrence, naming Owner, all mortgagees of the demised premises and Tenant as additional insureds, and otherwise in form and substance satisfactory to Owner; (iv) procure and submit to Owner, (A) a fixed sum contract duly executed, in assignable form, made with a reputable and responsible contractor approved by Owner, providing for completion of all work, labor and material necessary to complete Tenant’s Work in accordance with the Plan, (B) an assignment, without assumption, of the contract so furnished, which shall be duly executed and acknowledged by Tenant and by its terms shall be effective upon any termination of this Lease or upon Owner’s re-entry upon the demised premises following default by Tenant prior to the complete performance of such contract, such assignment shall also include Owner’s right to the benefit of all payments made on account of said contract including payments made prior to the effective date of such assignment; (v) in the event Owner determines that the cost of removing the Work and restoring the demised premises or any portion thereof at the expiration or termination of this Lease to its original condition, including the removal of installations of personal property, will exceed Ten Thousand and 00/100 Dollars ($10,000.00), procure and submit to Owner either (A) a surety bond or guaranty for the payment for and performance of the removal and restoration, which bond or guaranty shall be in form and substance satisfactory to Owner and shall be signed by a surety or sureties or guarantor, as the case may be, acceptable to Owner, or (B) a sum of money determined by Owner to be sufficient to serve as additional security for removal and restoration as may be required under this Lease subject to all of the conditions contained in this Lease, which sum shall be held in escrow by Owner until removal or restoration has been satisfactorily completed and paid for and release of liens in form satisfactory to Owner have been received from each contractor, subcontractor of every tier, materialman, laborer, architect and engineer engaged, employed or otherwise connected with the removal or restoration. The coverages maintained by the contractor shall meet the same requirements as set forth for the Tenant. The contractor and its subcontractors shall maintain workers compensation insurance as required by statute which will include a waiver of subrogation in favor of both the Landlord and its Tenant. The general liability insurance maintained by contractors shall provide coverage for both ongoing and completed operations. The completed operations coverage shall be maintained for a period of three (3) years upon completion of the project. The contractor shall provide additional insured status for Tenant via the CG 2033 completed operations endorsement and the CG 2037 ongoing operations endorsement.

 

 
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c.     Any change, alteration or installation shall, when completed, be of such a character so as not to reduce the value of the demised premises below its value immediately before such change, alteration or installation, and no change, alteration or installation shall, at any time, be made which shall impair the structural soundness of the demised premises or diminish the value thereof or render it unfit.

 

d.     Tenant shall pay to Owner, upon presentation of invoices therefor, Owner’s and its mortgagee’s reasonable architectural, engineering and legal costs and expenses in connection with the review and inspection of the Plan, the Work or any of the documents provided to Owner hereunder.

 

53.

Mechanics Liens.

 

a.     If a notice of a mechanic’s or other lien be filed against the demised premises, the leasehold interest therein or the land thereat for labor or material alleged to have been furnished at the demised premises or the building to or for Tenant or to or for someone claiming under Tenant, then Tenant shall, at its sole cost and expense, cause such lien to be canceled and discharged of record within thirty (30) days after the filing thereof. To the fullest extent permitted by law, Tenant shall defend, indemnify and hold harmless Owner from and against any and all claims, suits, proceedings, obligations, liabilities, damages, losses, penalties, fines, costs and expenses, including reasonable counsel fees, resulting from, by reason thereof or in connection with said lien or the failure of Tenant to comply with the provisions of this paragraph. If Tenant shall fail to cause such lien to be canceled and discharged within said thirty (30) days, then, in addition to any other rights and remedies of Owner, Owner may pay the amount of such lien or discharge it by deposit or by bonding proceedings. Owner may require the lienor to prosecute an appropriate action to enforce the lienor’s claim and, in such case, Owner may pay any judgment recovered on such claim.

 

b.     Nothing contained in this Lease shall authorize Tenant to do any act which shall in any way encumber the demised premises or the interest of Owner therein; the interest of Owner herein shall in no way be subject to any claim by way of lien or encumbrance, whether claimed by operation of law or by virtue of any expressed or implied contract by the Tenant. Any claim to a lien upon the demised premises or any interest therein arising from any act or omission of Tenant shall accrue only against the leasehold estate of Tenant and shall in all respects be subject to the paramount title and rights of Owner in and to the demised premises.

 

 
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54.

Additional Provisions Pertaining to Repairs, Replacements, Changes, Alterations and Installations.

 

a.     Any repair, replacement, change, alteration or installation by or on behalf of Tenant shall proceed diligently and be promptly completed (unavoidable delays excepted), in good and workmanlike manner utilizing new, first class materials, and strictly in compliance with the Plan, if any shall be required, and with all applicable permits, ordinances, orders, rules and regulations and requirements of all federal, state and municipal and local governments, departments, commissions, boards and officers, and the orders, rules and regulations of the National and State of New York Board of Fire Underwriters or any other body hereafter exercising similar functions. Tenant shall procure, at its own cost and expense, all certificates as required by law and deliver to Owner copies of same prior to making any such repair, replacement, change, alteration or installation and upon completion thereof.

 

b.     All electrical work shall be performed by a reliable and licensed electrical contractor who shall provide general liability and personal injury and property damage insurance certificates, in form and substance satisfactory to Owner, for the mutual benefit of Owner and such other persons as Owner may designate from time to time, and Tenant, prior to the commencement of any such electrical work.

 

c.     Owner may, at any time and from time to time, in addition to any other right of access given to Owner, enter the demised premises with one or more engineers or architects of Owner’s selection to determine the course and degree of completion of any Work, repairs or replacements and its compliance with Tenant’s Plan and the terms and conditions of this Lease. Tenant shall pay to Owner, upon presentation of invoices therefor, Owner’s reasonable architectural and engineering costs and expenses in connection with the inspection of the Work.

 

d.     After completion of any Work, Tenant shall assign to Owner all warranties that Tenant receives or has the benefit of with respect thereto, if any.

 

e.     Tenant shall deliver to Owner, within 30 days after any Work, “as-built” drawings thereof and final lien waivers in form satisfactory to Owner from each contractor, subcontractor of every tier, materialman, and/or laborer.

 

55.

Additional Responsibilities of Tenant.

 

a.     Tenant shall maintain all portions of the demised premises and the fixtures and appurtenances therein and sidewalks, loading docks and parking areas about the demised premises, in a clean, neat and orderly condition, free of vermin, dirt, rubbish, and unlawful obstructions, and shall remove snow and ice from the parking and loading areas and the sidewalks about the demised premises.

 

b.     Tenant shall obtain garbage bin receptacles, be responsible for its garbage removal, and shall obtain a contract with a garbage and refuse company as shall be acceptable to Owner. Tenant represents that it will not allow garbage or refuse to accumulate outside or inside the building on the demised premises.

 

 
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c.     Tenant shall not (1) install, operate or maintain in the demised premises any electrical equipment which will overload the electrical system therein, or any part thereof, beyond its reasonable capacity for proper and safe operation, or which does not bear underwriters’ approval; (2) suffer, allow or permit any offensive or obnoxious vibration, noise, odor or other undesirable effect to emanate from the demised premises; (3) store materials, supplies, equipment, merchandise, boxes, receptacles, displays or articles of any kind, nature or description outside of the demised premises, it being agreed that Tenant will conduct its business solely within the demises premises; and (4) store disabled or unlicensed vehicles, trailers or the like in or about the demised premises.

 

d.     Tenant covenants not to use, store, generate, dispose of or discharge, or suffer the use, storage, generation, disposal of or discharge of, any contaminated or hazardous materials or any other material prohibited or regulated by any governmental or quasi-governmental authority having jurisdiction thereof in amounts in excess of those permitted or recommended by such governmental or quasi-governmental authorities, or any material determined by Owner, in its sole discretion, to be detrimental to the demised premises, including the land on which the demised premises is located and the sewage disposal system and drainage systems servicing same; in addition to and not in limitation of the foregoing, Tenant covenants that (1) the demised premises (including its surroundings) shall be kept free of hazardous materials hereafter placed, stored, used, generated or disposed of in, on, under, within, or about the demised premises, in excess of amounts permitted or recommended, and (2) all hazardous materials shall be handled in the manner required or recommended by all governmental or quasi-governmental authority; the demised premises shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce, process, or in any manner to deal with, hazardous materials in excess of amounts permitted or recommended, or in a manner other than required or recommended, by all governmental or quasi-governmental authority; Tenant shall not cause or permit the installation of hazardous materials onto or below the demised premises or onto or below any other property, or suffer the presence of hazardous materials onto or below the demised premises (including its surroundings). Tenant shall comply with, and ensure compliance by all Tenant’s agents, servants, employees and invitees with, all applicable federal, state and local laws, ordinances, rules and regulations with respect to health, safety, environment, and hazardous materials, and shall keep the demised premises free and clear of any violations and liens imposed pursuant to such laws, ordinances, rules and regulations. In the event Tenant receives any notice or advice from any governmental or quasi-governmental agency, or from any other person or entity with regard to health, safety, environment or hazardous materials on, under, from or affecting the demised premises, then Tenant shall immediately notify the Owner. Tenant shall conduct and complete all investigations, studies, sampling, and testing and all remedial, removal, and other actions necessary to clean and remove all hazardous materials (for which Tenant is responsible hereunder) on, under, from or affecting the demised premises, in accordance with all applicable federal, state, and local laws, ordinances, rules, regulations, and policies, and to the satisfaction of the Owner. Tenant shall immediately, upon request, provide unhampered access to all portions of the demised premises to Owner and to all governmental and quasi-governmental authorities charged with inspecting the demised premises or charged with enforcing or concerned with environmental, health or safety laws, ordinances, rules or regulations, and shall provide a detailed list of all substances stored or used in or about the demised premises together with a description of the amounts, frequency and manner of use thereof. To the fullest extent permitted by law, Tenant shall defend, indemnify and hold harmless the Owner from and against all liabilities, obligations, claims, damages, penalties, fines, causes of action, costs, and expenses (including reasonable attorney’s fees and expenses) imposed upon or incurred by or asserted against the Owner by reason of (1) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any hazardous material on, under, from or affecting the demised premises or any other property (for which Tenant is responsible hereunder); (2) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such hazardous materials; (3) any lawsuit brought or threatened or settlement reached, provided, however, that Tenant will be given the opportunity, if available with no adverse effect to Owner, to contest any such settlement on the grounds therefor with the opposing person or entity, after paying same, or governmental order relating to such hazardous materials; or (4) any violation of laws, ordinances, rules, orders, or regulations which are based upon or in any way are related to such hazardous materials, health, safety or environment including attorney or consultant fees, investigation and laboratory fees, court costs, and litigation expenses; this provision shall survive the termination or expiration of this Lease. The indemnification obligation of Tenant as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, or other employee benefit acts. As used herein, “hazardous materials” shall include, but is not limited to, any flammable explosives, gasoline, petroleum products, polychlorinated biphenyl, radioactive materials, hazardous wastes, hazardous or toxic substances, or related or similar materials, asbestos or any material containing asbestos, or any other substance or material as defined by any federal, state or local environmental law, ordinance, rule, or regulation including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et . seq .), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et . seq .), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et . seq .), and the regulations adopted and publications promulgated pursuant thereto.

 

 
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e.     In the event the demised premises become infested with vermin, rodents, mice, ants, silverfish, roaches, waterbugs, pill bugs, termites, beetles, birds, squirrels, earwigs, clover mites, bees, wasps, or other bug or animal, Tenant agrees to hire, at its own cost and expense, an exterminating service to remedy the situation. Upon the failure or omission of Tenant to remedy the condition as aforesaid within five (5) days after notice of such condition given by Owner to Tenant or the occurrence of such a condition on two or more occasions during any twelve month period as determined by Owner in its sole and arbitrary discretion, Owner may elect to correct the situation and charge the cost thereof to Tenant.

 

56.

Signs.

 

a.     Tenant may erect and maintain, at its sole cost and expense, a sign or signs with the prior approval of Owner. In addition, Tenant shall be subject to, and shall comply with, all laws and ordinances of the governmental authorities having jurisdiction thereof and the covenants, restriction and agreements, if any, affecting the demised premises.

 

b.     Throughout the Term of this Lease, Tenant shall maintain such sign or signs in good repair.

 

 
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c.     Upon termination of the Term of this Lease, Tenant shall, at its sole cost and expense, remove the sign or signs and repair any damage caused by erection, maintenance or removal of the sign or signs.

 

57.

Additional Provisions Pertaining to Defaults and Remedies.

 

a.     In the event of a breach or threatened breach of Tenant of any of its obligations under this Lease, Owner shall also have the right of injunction. The specified remedies to which Owner may resort hereunder are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Owner may lawfully be entitled, and Owner may invoke any remedy allowed at law or in equity as if specific remedies were not herein provided for.

 

b.     Tenant waives and surrenders all right and privilege that Tenant might have under or by reason of any present or future law to redeem the demised premises or to have a continuance of this Lease after Tenant is dispossessed or ejected therefrom by process of law or under the terms of this Lease or after any termination of this Lease. Tenant also waives the provisions of any law relating to notice and/or delay in levy of execution in case of any eviction or dispossession for nonpayment of rent, and the provisions of any successor or other law of like import.

 

c.     Notwithstanding anything to the contrary contained in this Lease, neither party shall be liable for any consequential or punitive damages arising under or relating to this Lease.

 

58.

Condemnation.

 

a.     If the whole of the demised premises shall be acquired or condemned by eminent domain, or by private sale in lieu of condemnation, for any public or quasi public use, then the Term of this Lease shall cease and terminate as of the date of title vesting in such proceeding and all rent shall be paid and apportioned to that date and Tenant shall have no claim against Owner nor against the condemning authority for the value of any unexpired Term of this Lease.

 

b.     If any part of the demised premises shall be acquired or condemned by eminent domain or by private sale in lieu of condemnation, then (1) if such taking does not include any material part of the building on the demised premises, then this Lease shall continue in full force and effect without any abatement in rent, or (2) if such taking does include any material part of the building on the demised premises, then the Term of this Lease shall cease and terminate as of the date of title vesting in such proceeding, and Tenant shall have no claim against Owner nor the condemning authority for the value of any unexpired Term of this Lease and all rent shall be paid and apportioned to the date of such termination.

 

c.     In the event of any condemnation or taking, whether whole or partial, permanent or temporary, Tenant shall not be entitled to any part of the award paid for such condemnation or taking. Tenant hereby assigns to Owner any and all right, title and interest of Tenant now or hereafter arising in or to any part of such award.

 

d.     Although all damages in the event of any condemnation or taking belong to Owner whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the demised premises, Tenant shall have the right to claim and recover from the condemning authority, but not from Owner, such compensation as may be separately awarded or recoverable by Tenant in Tenant’s own right on account of any cost or loss to which Tenant might be put in removing Tenant’s furniture, fixtures, leasehold improvements, and equipment provided Tenant’s claim shall not, in Owner’s sole judgment, impair or jeopardize or adversely affect Owner’s claim.

 

 
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59.

Assignment and Sublet.

 

a.     If Tenant is a corporation, the transfer of a majority of the issued and outstanding capital stock of Tenant or the issuance of additional shares of the Tenant such that if the additional shares had first been issued to the existing shareholders of the Tenant and then transferred to the acquiring shareholders, such event would have constituted a transfer of a majority of the issued and outstanding capital stock of the Tenant within the meaning of this Section, or, if Tenant is a partnership, limited liability company or other entity, the transfer of a majority of the total interest in Tenant or the issuance of additional partnership, membership or other equity interests such that had the additional interests first been issued to the existing interest holders of interests in Tenant and then transferred to the acquiring holders, such event would have constituted a transfer of majority of the total interests of Tenant, however any of such corporate stock, partnership, membership or other interest transfers or issuances are accomplished, whether in a single transaction or in a series of related or unrelated transactions, such transactions shall be deemed an assignment of this Lease. The transfer of outstanding capital stock of Tenant, for purposes of this Section, shall not include sale of such stock by persons other than those deemed “insiders” within the meaning of the Securities Exchange Act of 1934 as amended (the “Act”), or the initial sale by Tenant of stock to persons other than those deemed “insiders” within the meaning of the act, provided in each such instance the sale is effected through the “Over the Counter Market” or through any recognized stock exchange.

 

b.     All of the shareholders of the Tenant and their respective percentage of issued and outstanding shares of the Tenant owned by each of them, or all of the partners or members of the Tenant and their respective percentage interests in the Tenant, are:

 

Shareholder/Partner/Member

 

Percentage

   
     
     
     

 

 

The parties agree this Section 59b is not applicable as the Tenant is a public company.

 

c.     Notwithstanding anything to the contrary contained herein, Owner herewith consents to assignment of this Lease or sublease of all or part of the demised premises to a wholly owned subsidiary of Tenant or to the parent of Tenant or to any corporation into or with which Tenant may be merged or consolidated or to any entity, including a partnership or limited liability company, to which substantially all of its assets may be transferred. No such assignment or subletting shall be effective unless and until, prior to the effective date of such assignment or subletting, Tenant shall deliver to Owner: (i) in the case of an assignment, a duplicate original instrument of assignment in form and substance theretofore approved by Owner, which approval shall not be unreasonably withheld or delayed, duly executed by Tenant and assignee, in which the assignee assumes the observance and performance of, and agrees to be bound by, all of the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed, and (ii) in the case of a subletting, an executed duplicate original of the sublease theretofore approved by Owner which approval shall not be unreasonably withheld or delayed.

 

 
 

 

 

60.

Bankruptcy.

 

Notwithstanding the provisions of this Lease to the contrary, in the event Tenant shall file a petition under Chapter 11 of the Bankruptcy Code, Tenant’s trustee or Tenant, as debtor-in-possession, shall, unless otherwise ordered by the Bankruptcy Court, elect to assume this Lease at or prior to the earlier of: (i) sixty (60) days after the date of filing of such petition, and (ii) confirmation of a plan under Chapter 11. In the absence of an election to assume within such time period, Tenant’s trustee or Tenant, as debtor-in-possession, shall be deemed to have rejected this Lease. In the event Tenant, Tenant’s trustee or Tenant, as debtor-in-possession, has failed to perform all of Tenant’s obligations under this Lease within the time periods (subject to the notices and grace periods provided for herein) required for such performance, no election by Tenant’s trustee or Tenant, as debtor-in-possession, to assume this Lease shall be effective unless each of the following conditions has been satisfied:

 

i.     Tenant’s trustee or Tenant, as debtor-in-possession, has cured all defaults under this Lease susceptible of being cured by the payment of money, or has provided Owner with Assurance (as defined below) that it will cure all defaults susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will, promptly after the date of such assumption, commence to cure all other defaults under this Lease which are susceptible of being cured by the performance of any act and will diligently pursue completion of such curing;

 

ii.     Tenant’s trustee or Tenant, as debtor-in-possession, has compensated, or has provided Owner with Assurance that within ten (20) days from the date of such assumption it will compensate, Owner for any actual pecuniary losses incurred by Owner arising from the default of Tenant, Tenant’s trustee or Tenant, as debtor-in-possession, or arising by or in connection with Tenant’s filing or having filed against Tenant a petition in bankruptcy, as indicated in any statement of actual pecuniary loss sent by Owner to Tenant’s trustee or Tenant, as debtor-in-possession, such statement, however, not to be deemed a binding and conclusive determination or computation of the amount of such loss;

 

iii.     Tenant’s trustee or Tenant, as debtor-in-possession, has provided Owner with Assurance of the future performance of each of the obligations under this Lease of Tenant, Tenant’s trustee or Tenant, as debtor-in-possession; and

 

iv.     Such assumption will not breach or cause a default under any provision of any other lease, mortgage, financing agreement or other agreement by which Owner is bound relating to the demised premises.

 

 
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For purposes of this paragraph, Owner and Tenant acknowledge that “Assurance” shall mean either: (x) Tenant’s trustee or Tenant, as debtor-in-possession, has and will continue to have reasonably sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to reasonably assure Owner that sufficient funds will be available to fulfill the obligations of Tenant under this Lease; or (y) Tenant’s trustee or Tenant, as debtor-in-possession, has deposited with Owner, as security, an amount equal to two (2) installments of annual fixed rent (at the rate then payable) which shall be applied to monthly installments of the annual fixed rent in the inverse order of their maturity; or (z) the Bankruptcy Court shall have entered an order granting to Owner a valid and perfected first lien and security interest in property of Tenant, Tenant’s trustee or Tenant, as debtor-in-possession, having a liquidation value as determined by the Bankruptcy Court appraiser at least equal to two (2) monthly installments of the annual fixed rent (at the rate then payable).

 

b.     If Tenant’s trustee or Tenant, as debtor-in-possession, has assumed this Lease pursuant to the terms and provisions hereof for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed assignee has provided adequate assurance of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. As used herein “adequate assurance of future performance” shall mean at a minimum that each of the following conditions has been satisfied:

 

i.     The proposed assignee shall have paid to Owner an amount equal to six (6) monthly installments of annual fixed rent at the rate then payable;

 

ii.     The proposed assignee has furnished Owner with either: a current financial statement audited or reviewed by a certified public accountant indicating a net worth and working capital in amounts which Owner reasonably determines to be sufficient to assure the future performance by such assignee of Tenant’s obligations under this Lease; or a guarantee or guarantees, in form and substance reasonably satisfactory to Owner, from one or more persons with a net worth equal to or in excess of $5,000,000.00 in the aggregate;

 

iii.     Owner has obtained all consents or waivers from others required under any lease, mortgage, financing arrangement or other agreement by which Owner is bound to permit Owner to consent to such assignment; Owner shall use its reasonable efforts to obtain such consents or waivers, but in no event shall be obligated to incur any cost, expense or liability or consent to any adverse change to its financing arrangements; and

 

iv.     The proposed assignment will not release or impair any guaranty of the obligations of Tenant (including the proposed assignee) under this Lease.

 

c.     When, pursuant to the Bankruptcy Code, Tenant’s trustee or Tenant, as debtor-in-possession, shall be obligated to pay reasonable use and occupancy charges for the use of the demised premises (as distinguished from annual fixed rent and additional rent under this Lease while this Lease continues in force and effect), such charges shall be not less than the annual fixed rent and additional rent payable by Tenant under this Lease.

 

 
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d.     Neither the whole nor any portion of Tenant’s interest in this Lease or its estate in the demised premises shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant unless Owner shall have consented to such transfer in writing. No acceptance by Owner of rent or any other payments from any such trustee, receiver, assignee, or other person or entity shall be deemed to constitute such consent by Owner nor shall it be deemed a waiver of Owner’s right to terminate this Lease and recover possession of the demised premises for any transfer of Tenant’s interest under this Lease without such consent.

 

61.

Tenant Certification Required By Owner or Lending Institution.

 

Tenant shall, at the request of Owner, or if requested by any lending institution having or placing a mortgage upon the demised premises, within ten (10) days after each such request, execute and deliver to Owner, each requesting lending institution and each other person specified by Owner, a certificate certifying (provided that the aforesaid statements are true at the time Tenant is requested to provide such certification,) that, at the time of the execution thereof, the Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and identifying the modifications); the dates to which the rent and additional rent have been paid, whether or not there exists any default by Owner under this Lease, and if, so, specifying each such default, that Tenant has accepted possession of the demised premises; the dates to which the rent and other charges have been paid; and such other and additional information as Owner or any lending institution may reasonably request.

 

62.

Mortgagee’s and Others’ Requirements.

 

a.     Tenant will promptly furnish to Owner and any holder of a mortgage on the demised premises all financial information and other information concerning Tenant, and any guarantor of Tenant’s obligations hereunder, reasonably required by Owner or Owner’s mortgagee, and Tenant, and any guarantor of Tenant’s obligations hereunder, will execute any documents, in commercially reasonable form and substance, reasonably required by Owner or the mortgagee in connection therewith.

 

b.     In the event of any act or omission by Owner which would give Tenant the right to terminate this Lease or to claim a partial or total eviction, Tenant shall not exercise any such right (1) until it shall have given written notice by certified or registered mail, return receipt requested, of such act or omission to any such mortgagee whose name and addresses shall have been furnished to Tenant in writing, at the last addresses so furnished and (2) until a reasonable period of time for remedying such act or omission shall have elapsed following the giving of such notice not to exceed sixty (60) days, provided that following the giving of such notice, Owner or any such mortgagee, shall with reasonable diligence, have commenced and continued to remedy such act or omission or to cause the same to be remedied.

 

c.     In the event a Receiver in a foreclosure action or a purchaser at a sale in an action to foreclose a mortgage to which this Lease is subordinate, or their successors or assigns, shall become Owner of the demised premises, then such Owner shall not be obligated to repair, rebuild or restore the demised premises after fire or other casualty, or after a partial “taking”, anything to the contrary contained in this Lease notwithstanding, provided that such Owner gives notice to Tenant within forty-five (45) days after such action.

 

 
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63.

Mortgage of Fee and Subordination of Lease.

 

a.     This Lease is made with the understanding that Owner has and hereafter may from time to time desire to encumber Owner’s interest in the demised premises with a permanent mortgage or mortgages or security interest or security interests granted to a mortgagee (including without limitation, individuals, partnerships, banks, trust companies, insurance companies, pension trusts, etc.) and may desire, in connection with the creation of such mortgage or mortgages or security interest or security interests, to cause the within Lease to be made subordinate to such mortgage or mortgages or security interest or security interests.

 

b.     Tenant covenants and agrees with Owner that Tenant will, from time to time, at the request of Owner and at no charge to Owner, promptly execute, acknowledge and deliver within ten (10) days after request an instrument or instruments in such commercially reasonable form as may be required by Owner or by any mortgagee or any other person holding an interest in the demised premises, so as to entitle it to record the subordination of the within Lease, and the rights of Tenant thereunder to said Lease and to the lien of such mortgage or mortgages or security interest or security interests. The form of such subordination shall be deemed commercially reasonable if regularly utilized by a current or prospective mortgagee which is a commercial or savings bank, savings and loan association, national bank or federally chartered or federally regulated savings and loan association, or insurance company authorized to do business in the State of New York or in the United States, or the State of New York or any agency or political subdivision thereof. In the event of a foreclosure of such mortgage or security interest, Tenant shall attorn to the mortgagee or its assigns and shall execute such instruments evidencing such attornment as requested by such mortgagee. The respective parties acknowledge and agree that Tenant’s refusal to execute any and all such instruments as hereinabove provided shall be a material breach of this Lease. In addition to any other remedies Owner may have, in the event Tenant shall fail or neglect to execute, acknowledge and deliver any such instrument or certificate to Owner within twenty (20) days following Tenant’s receipt of Owner’s request therefor, Owner may, as agent and attorney-in-fact of Tenant, execute, acknowledge and deliver the same and Tenant hereby irrevocably appoints Owner as Tenant’s agent and attorney-in-fact for such purpose.

 

c.     Notwithstanding reference being made herein to the fact that, under the circumstances herein set forth, Owner may require Tenant to execute an instrument which will subordinate the Lease to any and all such mortgages or security interests, nevertheless, the parties understand and agree that this paragraph constitutes, under the circumstances referred to herein, the subordination by Tenant of the Lease to any and all of such mortgages or security interests; the parties hereto intend that the provisions of this paragraph shall be self-executing and that any mortgagee may rely upon this paragraph constituting the within Lease subordinate and inferior to such mortgages or security interests.

 

 
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64.

Removal and Restoration by Tenant; Surrender.

 

Prior to the expiration or termination of this Lease, Tenant shall surrender the demised premises broom clean, in good order and condition, all keys for the demised premises to Owner at the place then fixed for the payment of rent and inform Owner of all combinations on locks, safes and vaults, if any, in the demised premises, shall remove all of its property, and all installations, alterations, decorations, additions, and improvements made by or on behalf of Tenant or such portions thereof as may be designated by Owner, unless and to the extent Owner shall notify Tenant to leave and surrender to Owner at the expiration or termination of this Lease such installations, alterations, decorations, additions and improvements, and restore the demised premises, provided, however, Tenant shall have the right to remove prior to the expiration of the Term of this Lease all moveable furniture and trade fixtures installed by Tenant provided Tenant shall repair any damage caused thereby to the satisfaction of Owner. If Tenant fails to remove such installations, alterations, decorations, additions, and improvements after request by Owner, or such trade fixtures or other property at the demised premises, Owner may remove same, at Tenant’s sole cost and expense, or, at Owner’s option, treat any such installations, alterations, decorations, additions and improvements, and equipment, machines, furniture or other personal property, or trade fixtures, remaining at the demised premises at the expiration of this Lease as abandoned and dispose of or use same as Owner deems fit without any liability therefor, or place same in storage, at the expense of Tenant. If the demised premises is not surrendered as and when aforesaid, to the fullest extent permitted by law, Tenant shall defend, indemnify and hold harmless Owner against loss, damage or liability resulting from the delay, including without limitation, any claims, penalties or fines made by any succeeding or proposed occupant or tenant. The indemnification obligation of Tenant as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, or other employee benefit acts.

 

Upon the expiration of the Term, provided that no event has occurred or is continuing which either immediately or with the lapse of time, or with notice, or both constitutes a default under this Lease, certain software more specifically set forth on Schedule C attached hereto and made a part hereof (the “Software”) shall become the property of Tenant, without any consideration payable by Tenant therefor, and shall be removed by Tenant as Tenant’s property prior to the end of the term of this Lease.

 

65.

Failure To Perform.

 

If Tenant fails to perform any of its obligations under this Lease, Owner or any mortgagee (each, a “Curing Party”) may perform the same at the expense of Tenant (a) immediately and without notice in the case of emergency or in case such failure interferes with the use of space by any other tenant in the building or with the efficient operation of the building or may result in a violation of any law or in a cancellation of any insurance policy maintained by Owner and (b) in any other case if such failure continues beyond any applicable grace period. Tenant shall pay to the Curing Party the costs incurred by such party for performing Tenant’s obligations under this Lease, together with interest at the Interest Rate from the date incurred by the Curing Party until paid by Tenant, within ten (10) days after receipt by Tenant of a statement as to the amounts of such costs. If the Curing Party effects such cure by bonding any lien which Tenant is required to bond or otherwise discharge, Tenant shall obtain and substitute a bond for the Curing Party’s bond and shall reimburse the Curing party for the cost of the Curing Party’s bond. “Interest Rate” means the lesser of (i) the base rate from time to time announced by Citibank, N.A. (or, if Citibank, N.A. shall not exist or shall cease to announce such rate, such other bank in New York, New York, as shall be designated by Owner in a notice to Tenant) to be in effect at its principal office in New York, New York plus 4% and (ii) the maximum rate permitted by law.

 

 
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Owner shall in no event be charged with default in the performance of its obligations hereunder unless and until Owner shall have failed to perform any obligations within a reasonable time after written notice by Tenant to Owner properly specifying wherein Owner has failed to perform any such obligations, or, in the case of a default which cannot with due diligence be cured within a reasonable period of time, if Owner immediately upon receipt of such notice, promptly institutes and thereafter diligently prosecutes to completion all steps necessary to cure the same. Notwithstanding anything in the Lease herein to the contrary, Owner shall in no event be charged with or liable for any direct or consequential damages suffered by Tenant as a result of Owner’s failure to perform any of its obligations under this Lease, unless such failure shall be willful.

 

66.

Independent Provisions.

 

If any term or provision of this Lease shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and the balance of the terms and provisions of this Lease shall be valid and enforceable to the fullest extent either hereunder or as permitted by law.

 

67.

New York Law and Non-recording of Lease.

 

This Lease shall be construed and enforced in accordance with the laws of the State of New York, and any action or proceeding hereunder shall be brought and maintained only within the County of Suffolk, State of New York. Tenant expressly warrants and represents that it will not record this Lease.

 

68.

Restriction on Rent.

 

If the fixed rent or any additional rent shall be or become uncollectible, reduced or required to be refunded by virtue of any law, governmental order or regulation, or direction of any public officer of any governmental body pursuant to law (of the nature of a rent freeze or rent restriction), then Tenant shall enter into such agreement(s) and take such other action (without additional expense to Owner) as Owner may reasonably request, and as may be legally permissible, to permit Owner to collect the maximum fixed rent and additional rent which may, from time to time during the continuance of such legal rent restriction, be legally permissible, but not in excess of the amounts of fixed rent or additional rent payable under this Lease. Upon the termination of such rent restriction prior to the expiration date, (a) the fixed rent and additional rent shall become and thereafter be payable under this Lease in the amount of the fixed rent and additional rent set forth in this Lease for the period following such termination, and (b) Tenant shall pay to Owner, to the maximum extent legally permissible, an amount equal to (1) the fixed rent and additional rent which would have been payable pursuant to this Lease, but for such legal rent restriction, less (2) the fixed rent and additional rent paid by Tenant during the period that such legal rent restriction was in effect.

 

69.

Broker.

 

Tenant represents that this Lease was not brought about by any broker. Tenant agrees that if any claim is made for commissions by any broker, by, through or on account of any acts of Tenant, Tenant will hold Owner free and harmless from any and all liabilities and expenses in connection therewith, including Owner’s reasonable attorney’s fees.

 

 
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70.

Entire Agreement.

 

This Lease constitutes the entire agreement between the parties and contains all the agreements, conditions, representations, or warranties made between the parties hereto. No representations other than those herein expressly contained have been made by either party to the other. This Lease may not be modified, altered, amended, changed or added to except in writing and signed by both parties.

 

71.

Captions.

 

The paragraph captions contained in the within Lease are inserted only as a matter of convenience and reference, and in no way define, limit or describe the scope of this Lease, nor the intent of any provision thereof.

 

72.

Non-Liability of Owner.

 

a.     Owner and its respective agents shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, snow or leaks from any part of the demised premises, or from the pipes, appliances or plumbing works or from the roof, street or sub-surface, or from any other place or by dampness or by any other cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees. Tenant shall give immediate notice to Owner in the event of any fire or accident at the demised premises.

 

b.     Neither Owner, nor any partner, member, manager or shareholder of Owner, nor a successor in interest to any of the foregoing, shall be under any personal liability with respect to any of the provisions of this Lease or any matter arising out of or in connection with this Lease or the Tenant’s occupancy or use of the demised premises, and in the event of any breach or default with respect to Owner’s obligations under this Lease or any claim arising out of or in connection with this Lease or the Tenant’s occupancy or use of the demised premises, Tenant shall look solely to the equity of such person or entity in the demised premises for the satisfaction of Tenant’s remedies and in no event shall Tenant attempt to secure any personal judgment against Owner, or any partner member, manager or shareholder of Owner, or successors thereto, or any partner, employee or agent of any of them by reason thereof.

 

c.     Except as expressly provided in this Lease to the contrary, with respect to any provision of this Lease which provides, in effect, that Owner shall not unreasonably withhold or unreasonably delay any consent or any approval, Tenant shall in no event be entitled to make, nor shall Tenant make, any claim for, and Tenant hereby waives any claim for, money damages; nor shall Tenant claim any money damages by way of set-off, counterclaim or defense based upon any claim or assertion by Tenant that Owner has unreasonably withheld or unreasonably delayed any consent or approval; Tenant’s sole remedy, except as otherwise expressly provided in this Lease, shall be an action or proceeding to enforce any such provision, or for specific performance, injunction or declaratory judgment. If any such action or proceeding shall be commenced, then the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and expenses incurred in such action or proceeding, and any appeal thereof (whether or not such costs are otherwise taxable or recoverable).

 

 
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d.     The approval, consent, determination, opinion or judgment of Owner or any agent or employee of Owner shall not be construed as such person’s endorsement, warranty or guarantee of the matter at issue or the manner or means of accomplishing same or the benefit thereof; in no event shall actions of such party replace, or act as or on behalf of, the requesting parties, its agents, servants or employees.

 

73.

Holdover.

 

a.     In the event Tenant shall holdover for any period after the expiration of the Term hereof or any renewal term, in addition to any other rights and remedies of Owner, Tenant shall pay to Owner for use and occupancy, in advance on a monthly basis, (a) (x) 150% of the Minimum Base Rent for the first month of such holdover and (y) 200% of the Minimum Base Rent thereafter, plus (b) all additional rents, as specified herein (pro-rated on a monthly basis), and such use and occupancy shall otherwise be on the terms and conditions herein specified, so far as same are applicable. Notwithstanding the foregoing, and in addition thereto, Owner’s acceptance of the payments hereunder shall not limit Owner’s right to evict Tenant from the demised premises as a holdover.

 

b.     No receipt of moneys by Owner from Tenant after termination of this Lease shall reinstate, continue or extend the Term of this Lease or affect any notice theretofore given to Tenant, or operate as a waiver of the right of Owner to enforce the payment of rent payable by Tenant hereunder or thereafter falling due, or operate as a waiver of the right of Owner to recover possession of the demised premises by proper remedy; it being agreed that after final order or judgment for the possession of the demised premises, Owner may demand, receive and collect any moneys due or thereafter falling due without in any manner affecting such notice, proceeding, order, suit or judgment, all such moneys collected being deemed payments on account of the use and occupation of the demised premises or, at the election of Owner, on account of Tenant’s liability hereunder.

 

74.

Miscellaneous.

 

a.     Upon the commencement of, and at all times during, the Term of this Lease, Tenant shall leave in possession of Owner (or its agents) all keys necessary to obtain entry to the demised premises and portions thereof.

 

b.     In the event of strikes, lockouts, fire and other unavoidable and unusual shortages or delays in transportation of materials, Acts of God, National Emergency, war or delays occasioned by other similar causes beyond the control of Owner, the time by Owner for performance shall be extended for a period equal to the period of such delay.

 

c.     All obligations of Owner and Tenant under this Lease, including without limitation, Owner’s and Tenant’s indemnification obligations, shall survive termination of this Lease.

 

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

 

e.     Whenever Tenant’s obligations under this Lease are subject to a condition, Owner shall have no implied obligation to enable such condition to be satisfied, including incurring any expense or liability, actual, contingent or possible, or any act or omission.

 

f.     Each of the individuals executing this Lease on behalf of the Owner and the Tenant represents that he has the power to do so and that his signature binds the party on whose behalf he has executed this Lease.

 

g.     This Lease may be executed in multiple counterparts (including facsimile counterparts or as a pdf or similar attachment to an email), each of which constitutes an original and all of which, taken together, constitute one and the same instrument.

 

75.

Owner Representation and Warranty .

 

Owner represents and warrants to Tenant that: (i) Owner has full power and authority to execute and deliver the Lease and perform its obligations thereunder and any action of Owner necessary to authorize the Lease has been duly taken and the person or persons executing the Lease on behalf of Owner have been duly authorized to do so; (ii) Owner is duly organized, validly existing and in good standing under the laws of the State of New York; and (iii) Owner has not received any written notices of any violations of law in the demised premises.

 

76.

Capital Improvements and Repairs .

 

Tenant acknowledges and agrees that Tenant is responsible for all customary maintenance and repairs of the demised premises as set forth herein. However, notwithstanding anything herein to the contrary, to the extent the demised premises require any capital replacements or replacements solely due to natural deterioration (which shall include without limitation any new roof, new HVAC, or any other major repairs costing over $20,000.00), the Owner shall be responsible for those repairs and the Tenant shall only be responsible to pay for Operating Expenses based on the amortized cost over their useful life, unless such replacements are due to the negligence of Tenant, its agents, servants or employees . For example, if the demised premises requires a new roof costing $500,000 with a ten (10) year useful life, then upon completion Tenant shall pay $4,166.67 each month towards the cost of such roof for the remaining Lease Term.

 

77.

Renewal Option .

 

Owner hereby grants to Tenant, so long as Tenant shall not be in default under the Lease (beyond applicable notice and cure period, if any), the right and option to renew the term of this Lease (“Renewal Option”) for one (1) additional consecutive period of two (2) years (the “Renewal Term”), commencing upon the expiration of the initial Term of this Lease. The Renewal Term shall be upon the same terms and conditions as during the initial Term hereof except that the Minimum Base Rent payable for the Renewal Term shall increase by (x) three percent (3%) on the first day of the Renewal Term and (y) three percent (3%) on the first anniversary of the Renewal Term. Tenant shall exercise its option to extend this Lease for the Renewal Term, if at all, by written notice (“Renewal Notice”) given to Owner on or before ninety (90) days prior to the expiration of the Term.

 

 
-26-

 

 

IN WITNESS WHEREOF, the parties have executed this Lease as of the 2nd day of June, 2017.

 

 

OWNER:

   
 

CAROLYN HOLDINGS LLC

   

By:

/s/ Jonathan Greenhut
 

Jonathan Greenhut, Member

   
 

TENANT:

   
 

TWINLAB CONSOLIDATED

HOLDINGS, INC.

   

By:

/s/ Alan S. Gever
  Alan S. Gever
  CFO / COO

 

 
-27-

 

 

SCHEDULE A

 

ALL that certain plot, piece or parcel of land, situate, lying and being at Farmingdale, in the Town of Babylon, County of Suffolk and State of New York, known and designated as Lot 20 on a certain map entitled, “Corrected Map of Broadhollow Industrial Plaza”, and filed in the Office of the Clerk of Suffolk County on December 20, 1982, by Map No. 7124A, bounded and described as follows:

 

BEGINNING at a point set in the Northerly side of Carolyn Boulevard distant 212.12 feet Westerly from the most Westerly end of the arc of a curve connecting the Westerly side of Boening Plaza with the Northerly side of Carolyn Boulevard and from said point or place of beginning;

 

RUNNING THENCE along the Northerly side of Carolyn Boulevard, South 84 degrees 37 minutes 53 seconds West, 207.39 feet;

 

THENCE North 3 degrees 11 minutes 53 seconds East, 226.24 feet;

 

THENCE South 87 degrees 48 minutes 51 seconds East, 205.11 feet;

 

THENCE South 3 degrees 1 I minutes 53 seconds West, 198.98 feet to the Northerly side of Carolyn Boulevard at the point or place of BEGINNING.

 

 
-28-

 

 

SCHEDULE B

 

FF&E

   

Item

Embedded in Building

Phone System

No

Physical Access Control

Yes

Building Alarm

Yes

Fire Alarm

Yes

Camera System

Yes

GMP Certification

Yes/No

Fulfillment Software

Yes/No

Desks

No

Chairs

No

Desktops (~25) $749

No

Mac's (1) $500-$3,000

No

Keyboard

No

Mouse

No

Monitors (~50) and stands

No

Speakers

No

Projector

No

Servers

No

PC Battery Backups

No

Server Battery Backups

No

Servers PDU's

No

 

No

 

 
-29-

 

 

Building (Rent)

Yes

Old Phone Number

No

Printers (12)

No

Décor

No

Server Racks

Yes

Brother Label Printers

No

Zebra Label Printers

No

UPS Worldship

No

Warehouse Racking / Cage

Yes

Wifi Routers

No

Network Switches

No

Laptops

No

Filing cabinets

No

Forklifts and chargers

No

Warehouse equiptment

No

Pallet jacks

No

USPS Meter

No

Pallet scales

No

Tradeshow Booth?

No

Warehouse Tools

No

IT Tools

No

IT Spare Parts

No

TV - Conf Room

No

Graphic Equiptment

No

Bottle Labeling Machine

No

Kitchen Appliances

No

QC Shelving

Yes

Label Shelving

Yes

Service Vendors

No

Network Wiring

Yes

 

 
-30-

 

 

SCHEDULE C

 

Software

 

Software

SCHEDULE C

ALL RESIDENT SOFTWARE

 

A brief list of what that would include (but not necessarily limited to) is:

 

         Acumatica Base License

 

         Fulfillment Software

 

         Firewall Licenses

 

         Windows Server licenses

 

         Windows desktop licenses

 

         VMware licenses

 

         Shoretel (phone) licenses

 

         Sysax FTP license

 

         Data protection manager licenses

 

         Call Copy (Call Recording) Licenses

 

         SQL Server License

 

         Network Password Manager Licenses

 

         Overseer (Uptime monitoring) Licenses

 

         Axosoft License

 

         Visual Studio License

 

         Exchange Licenses

 

         MS Office Licenses

 

         DoorsNxT License

 

Adobe CS Licences

 

IT Ticketing

 

Call Copy Software

 

Call Copy Server

 

NPM License

 

Old CRM

 

Overseer

 

FTP Server Software

 

Server KVM

 

Domain - nutricaplabs.com

 

 

-31-

Exhibit 10.170

 

 

LANDLORD’S AGREEMENT

 

THIS LANDLORD’S AGREEMENT (“ Agreement ”) is made and entered into as of June 2, 2017 by and among CAROLYN HOLDINGS LLC, a New York limited liability company (“ Landlord ”), TWINLAB CONSOLIDATED HOLDINGS, INC., a Nevada corporation (“ Company ”), and MIDCAP FUNDING X TRUST, a Delaware statutory trust, as successor-by-assignment from MidCap Financial Trust, as Agent (together with any successors and assigns, in such capacity, “ Agent ”).

 

A.     Landlord is the owner of the real property located at 70 Carolyn Boulevard, Farmingdale, New York (the “ Real Property ”), and Landlord has entered into that certain Agreement of Lease dated as of June 2, 2017 with Company (together with all amendments and modifications thereto, the “ Lease ”), pursuant to which, among other things, Landlord has leased to Company the Real Property as more fully described therein (the “ Premises ”).

 

B.     Agent and certain lenders (collectively, the “ Lenders ”) have entered into or are entering into certain financing transactions with Company, Twinlab Consolidated Holdings, Inc., a Nevada corporation, Twinlab Consolidation Corporation, a Delaware corporation, Twinlab Holdings, Inc., a Michigan corporation, ISI Brands Inc., a Michigan corporation, Twinlab Corporation, a Delaware corporation, and Nutrascience Labs IP Corporation, a Delaware corporation, Organic Holdings LLC, a Delaware limited liability company, Reserve Life Organics, LLC, a Delaware limited liability company, Resvitale, LLC, a Delaware limited liability company, Re-Body, LLC, a Delaware limited liability company, Innovitamin Organics, LLC, a Delaware limited liability company, Organics Management LLC, a Delaware limited liability company, Cocoawell, LLC, a Delaware limited liability company, Fembody, LLC, a Delaware limited liability company, Reserve Life Nutrition, L.L.C., a Delaware limited liability company, Innovita Specialty Distribution, LLC, a Delaware limited liability company, and Joie Essance, LLC, a Delaware limited liability company (together with any additional parties who may from time to time be “Borrowers” under the Credit and Security Agreement dated as of January 22, 2015 (as amended, modified and restated from time to time) by and among Agent, the Lenders and Company, collectively, “ Borrowers ”), and to secure such financing, Borrowers have granted to Agent a security interest in and lien upon certain of the tangible and intangible property owned by Borrowers, including, without limitation, all of the accounts, accounts receivable, general intangibles, payment intangibles, goods, machinery, equipment, furniture and fixtures owned by Borrower, together with all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing owned by Borrower (collectively, the “ Collateral ”). As used in this Agreement, the term “ Borrower’s Property ” shall mean the inventory, trade fixtures and tangible personal property owned by Borrower that is located at the Premises.

 

NOW, THEREFORE, in consideration of any financial accommodation extended by Agent and the Lenders to Borrowers at any time, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.     Landlord acknowledges that, as of the date hereof, (a) a true and correct copy of the Lease as in effect as of the date hereof is attached hereto as Exhibit A and (b) the Lease has not been assigned by Landlord, modified, supplemented or amended in any way and, to Landlord’s actual knowledge, is in full force and effect.  As of the date hereof, Landlord is not aware of any existing default under the Lease by Company.

 

 
 

 

 

2.     Landlord agrees to provide Agent with (a) a copy of any cancellation, amendment, consent, or waiver under the Lease, and (b) written notice of any default or breach by Company or claimed default or breach under the Lease that Landlord sends to Company (a “ Default Notice ”) at the same time as it sends such notice to Company.  Agent shall not be under any obligation to cure any default by Company under the Lease. No action by Agent pursuant to this Agreement shall constitute or be deemed to be an assumption by Agent of any obligation under the Lease, and, except as provided under Paragraphs 6 and 8 below, Agent shall not have any obligation to Landlord.

 

3.     Company has not granted Landlord any lien or security interest in any assets of Company that remains in effect, including, without limitation, the Collateral. Landlord has been advised that Agent has a lien on the Collateral and, until such time as the obligations of Borrowers to Agent and the Lenders are indefeasibly paid in full and the commitments of the Agent and Lenders to extend credit have terminated, to the extent Agent has a perfected security interest in such Collateral, Landlord (a) agrees not obtain a security interest in or consensual lien on such Collateral (except as provided in clause “(b)” of this Paragraph 3), and (b) except pursuant to a judgment lien obtained pursuant to judicial process available to an unsecured creditor, waives and agrees not to distrain, levy upon or take possession of any such Collateral or to assert any landlord lien, right of distraint, setoff or other comparable right against the Collateral; provided that nothing in this Agreement is intended to or shall restrict Landlord’s remedies under or in connection with the Lease including, without limitation, for regaining possession of the Premises (subject to the agreements and rights and remedies of Agent and Lenders provided in this Agreement) or Landlord’s right to receive and retain any amounts previously or hereafter paid to or for the benefit of Landlord under the Lease.

 

4.     Company hereby agrees that Landlord shall have no liability to Company or any other Borrowers for action or inaction taken by Landlord in good faith in an effort to comply with the provisions of this Agreement.

 

5.     Landlord agrees that the Collateral may be stored, utilized, maintained and/or installed at the Premises and shall not be deemed a fixture or part of the real estate but shall at all times be considered personal property, whether or not any Collateral becomes so related to the real estate that an interest therein would otherwise arise under applicable law. Notwithstanding any other provision of this Agreement to the contrary, Agent expressly acknowledges and agrees that the Collateral shall not include any plumbing and electrical systems, HVAC units and related distribution systems, other core building systems, parking lot poles and such materials and other goods that form part of the Premises, as opposed to the operation of Company’s business (such as the Company’s trade fixtures, the Company hereby advising the Landlord that generally the Company does not intend to improve the Premises).

 

 
 

 

 

6.     Prior to a termination of the Lease, Agent, its representatives and agents or potential purchasers may enter upon the Premises, at reasonable times upon reasonable prior notice to Landlord, to inspect or remove any or all of the Collateral, including, without limitation, by private sale pursuant to the provisions of paragraph 8 below and Landlord shall use commercially reasonable efforts not to hinder Agent’s actions in enforcing its security interest and liens on the Collateral; provided that Agent and its representatives shall use commercially reasonably efforts to minimize interference to any activities being conducted by Landlord, or any person or entity claiming by, through or under Landlord. Agent shall promptly repair, at Agent’s expense, any physical damage to the Premises actually caused by or through Agent as a result of its activities at the Premises or the removal of any Collateral from the Premises. Agent shall not be liable for any diminution in value of the Premises caused by the absence of Collateral actually removed or by any necessity of replacing the Collateral, and Agent shall have no duty or obligation to remove or dispose of any Collateral or any other property left on the Premises by Company.

 

7.     To the extent that Landlord has the legal right to do so (and, by Company’s acceptance below, such legal right is hereby irrevocably granted to Landlord by Company), Landlord agrees to grant to Agent prompt and reasonable access to the Premises to the same extent provided to Company under the Lease in order for Agent to have access to and inspect or remove any or all of the Collateral, specifically including the books and business records of Company (together with the computer programs, equipment, software and data necessary to access and maintain such books and business records) which evidence or are otherwise necessary to establish, verify or collect upon the Collateral.

 

8.     Upon a termination of the Lease (other than its scheduled expiration by its own terms), Landlord shall provide written notice to Agent of such termination (a “ Termination Notice ”) and shall permit Agent and its representatives and invitees use of the Premises for the purposes of inspecting, repossessing, removing and otherwise dealing with the Collateral, and Agent may advertise and conduct private sales of the Collateral at the Premises; provided, however , that (a) such period of use (the “ Disposition Period ”) shall not exceed thirty (30) days following receipt by Agent of a Termination Notice (subject to tolling and extension as provided in Paragraph 9 below), (b) for the actual period of occupancy by Agent, Agent will pay to Landlord the fees and other amounts that are enumerated in Sections 43(a), (c) and (d) of the Lease and due under the Lease pro-rated on a per diem basis determined on a thirty (30) day month, and shall provide and retain liability and property insurance coverage, electricity and heat to the extent required of the Company by the Lease, and (c) subject to the provisions of clauses (b) and (c) above, Landlord shall use commercially reasonable efforts not to hinder Agent’s actions in enforcing its security interest and liens on the Collateral. If Agent conducts a private sale of the Collateral at the Premises, Agent shall use reasonable efforts to notify Landlord first and to hold such sale in a manner which would not unreasonably disrupt Landlord’s or any other tenant’s use of the Premises. Agent shall promptly repair, at Agent’s expense, any physical damage to the Premises actually caused by or through Agent as a result of its activities at the Premises or the removal of any Collateral from the Premises. Agent shall not be liable for any diminution in value of the Premises caused by the absence of Collateral actually removed or by any necessity of replacing the Collateral, and Agent shall have no duty or obligation to remove or dispose of any Collateral or any other property left on the Premises by Company.

 

 
 

 

 

9.     (a)     If, during the Disposition Period, there exists both (x) an order, injunction or stay (other than in a proceeding commenced by Agent or any Lender) which prohibits Agent from exercising any of its material rights hereunder and (y) an order or injunction or stay not initiated by Agent which prohibits Landlord from regaining possession of the Premises from the Company, and provided Agent is timely appealing such order or is using commercially reasonable efforts to lift the injunction or stay that prohibits Agent from exercising its rights, as applicable, then, at Agent’s option (upon notice to Landlord promptly after Agent becomes aware of such order, injunction or stay), the expiration of the Disposition Period shall be tolled during the period of such prohibition and shall continue thereafter for the number of days remaining in the Disposition Period; provided , however , that with respect to such period of tolling, no amounts shall be due, payable or accrue with respect to Agent under clause (b) of Section 8 hereof.

 

10.     (b)     If, during the Disposition Period, there exists an order, injunction or stay (other than in a proceeding commenced by Agent or any Lender) which prohibits Agent from exercising any of its material rights hereunder but no order, injunction or stay which prohibits Landlord from regaining possession of the Premises from the Company, and provided Agent is timely appealing such order or is using commercially reasonable efforts to lift the injunction or stay that prohibits Agent from exercising its rights, as applicable, then, at Agent’s option (upon notice to Landlord promptly after Agent becomes aware of such order, injunction or stay), the Disposition Period shall be extended (on the terms set forth in Section 8 including, without limitation, the requirement that the Agent pay the amounts described in clause (b) thereof) for an additional thirty (30) days (for the avoidance of doubt, under this provision the Disposition Period shall not exceed sixty (60) days in the aggregate).All notices hereunder shall be in writing, sent by overnight courier, certified mail, return receipt requested, to the respective parties and the following addresses:

 

If to Agent at:

MidCap Funding X Trust

c/o MidCap Financial Services, LLC, as servicer

7255 Woodmont Avenue, Suite 200

Bethesda, MD 20814

Attn:  Portfolio Mgt. – Twin Labs Loan

 

With a copy to:

MidCap Funding X Trust

c/o MidCap Financial Services, LLC, as servicer

7255 Woodmont Avenue, Suite 200

Bethesda, MD 20814

Attn:  General Counsel

   

If to Company at:

Twinlab Consolidated Holdings, Inc.

c/o Twinlab Consolidation Corporation

4800 T-Rex Avenue

Suite 305

Boca Raton, Florida 33431

Attention : Al Gever, CFO

Facsimile:  (561) 443-2821

 

 
 

 

 

If to Landlord at:

Carolyn Holdings LLC

c/o Jonathan Greenhut

43 Hunting Hollow Court

Dix Hills, NY 11746

 

with a copy to:

 

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, New York 10036

Attention:    James P. Godman, Esq.

 

 

11.      Miscellaneous . This Agreement may be executed in any number of several counterparts, shall be governed and controlled by, and interpreted under, the laws of the State of New York, without regard to internal laws of conflicts, and shall inure to the benefit of and be binding upon Agent, the Lenders, Company, Landlord and their respective successors and assigns (including any transferees of the Premises).

 

[Signature page follows]

 

 
 

 

 

IN WITNESS WHEREOF , intending to be legally bound, and intending that this agreement constitute an agreement executed under seal, each of the parties have caused this Landlord’s Agreement to be executed under seal the day and year first above mentioned.

 

 

 

COMPANY:

TWINLAB CONSOLIDATED HOLDINGS,

INC. , a Nevada corporation

   
   
 

By:   /s/ Alan S. Gever                                                 
Name: Alan S. Gever

Title: CFO / COO


 

 

LANDLORD:

CAROLYN HOLDINGS LLC , a New York

limited liability company

   
   
 

By:    /s/ Jonathan Greenhut                                      
Name: Jonathan Greenhut

Title: Managing Member

 

AGENT:

MIDCAP FUNDING X TRUST, a Delaware

statutory trust, as successor-by-assignment from

MidCap Financial Trust

   
 

By:          Apollo Capital Management, L.P.,

                its investment manager

 

By:          Apollo Capital Management GP, LLC,

                its general partner

 

 

By:    /s/ Michael Levin                                               

Name: Michael Levin

Title:   Authorized Signatory

 

 

 

 

Signature Page to Landlord’s Agreement