<PAGE>
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-QSB
[x] QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended OCTOBER 31, 1996
[_] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the transition period from____________to_____________
Commission file number 0-20424
HI-TECH PHARMACAL CO., INC.
______________________Delaware___________________________112638720_____________
(State or other jurisdiction (IRS
of incorporation or organization) Employer Identification No.)
369 Bayview Avenue, Amityville, New York 11701
(Address of principal executive offices)
_________________516 789-8228__________________
(Issuer's telephone number)
___________________________________Not applicable_________________________
(Former name, former address and former fiscal year, if changed since last
report)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15 (d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES XX NO_______
________
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Check whether the registrant filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by a court.
Yes______ No______
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date:
Common Stock, $.01 Par Value - 4,475,707 shares as of December 11, 1996.
<PAGE>
INDEX
HI-TECH PHARMACAL CO.,INC.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Condensed balance sheets--OCTOBER 31, 1996 AND
APRIL 30, 1996.
Condensed statements of operations--THREE MONTH AND SIX MONTH
PERIODS ENDED OCTOBER 31, 1996 AND 1995.
Condensed statements of cash flows--SIX MONTH
PERIODS ENDED OCTOBER 31, 1996 AND 1995.
Notes to condensed financial statements.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
PART II. OTHER INFORMATION
Item 1. Legal proceedings
Item 2. Changes in securities
Item 3. Defaults upon senior securities
Item 4. Submission of matters to a vote of security holders
Item 5. Other information
Item 6. Exhibits and Reports on Form 8-K
2
<PAGE>
PART I. ITEM 1
HI-TECH PHARMACAL CO., INC.
CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
October 31, April 30,
1996 1996
------------------ -------------------
(unaudited) (From Audited
Financial
Statements)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 1,209,000 1,746,000
Accounts receivable, less allowances of $190,000 at
October 31, 1996 and $160,000 at April 30, 1996 3,926,000 3,699,000
Inventories 3,378,000 3,646,000
Income taxes receivable 328,000 207,000
Prepaid expenses and other receivables 651,000 272,000
------------------ -------------------
TOTAL CURRENT ASSETS 9,492,000 9,570,000
PROPERTY, PLANT AND EQUIPMENT -net 10,399,000 10,598,000
OTHER ASSETS 101,000 66,000
------------------ -------------------
TOTAL ASSETS $19,992,000 20,234,000
================== ===================
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Notes Payable: Bank $ 815,000 815,000
Current Portion - Long-term debt 553,000 599,000
Accounts payable and accrued expenses 3,106,000 2,992,000
------------------ -------------------
TOTAL CURRENT LIABILITIES 4,474,000 4,406,000
LONG-TERM DEBT 2,154,000 2,427,000
Deferred taxes 230,000 230,000
SHAREHOLDERS' EQUITY
Preferred stock, par value $ .01 per share; authorized
3,000,000 shares - -
Common stock, par value $ .01 per share; authorized
10,000,000 shares, issued and outstanding 4,476,000 at
October 31, 1996 and 4,472,000 at April 30, 1996 45,000 45,000
Additional capital 8,605,000 8,591,000
Retained earnings 4,484,000 4,535,000
------------------ -------------------
TOTAL SHAREHOLDERS' EQUITY 13,134,000 13,171,000
------------------ -------------------
LIABILITIES AND SHAREHOLDERS' EQUITY $19,992,000 20,234,000
================== ===================
</TABLE>
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
3
<PAGE>
HI-TECH PHARMACAL CO., INC.
CONDENSED STATEMENTS OF OPERATIONS (unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
October 31, October 31,
---------------------------- ----------------------
1996 1995 1996 1995
------------- ----------- --------- ----------
<S> <C> <C> <C> <C>
NET SALES $5,276,000 5,437,000 9,431,000 9,300,000
Cost of goods sold 3,751,000 3,072,000 6,772,000 5,435,000
-------------- ----------- --------- ---------
GROSS PROFIT 1,525,000 2,365,000 2,659,000 3,865,000
Selling, general, administrative
expense 1,270,000 1,194,000 2,237,000 2,066,000
Research & product development costs 242,000 158,000 481,000 296,000
Contract research (income) (63,000) (79,000) (107,000) (113,000)
Interest expense 68,000 24,000 154,000 54,000
Interest (income) (8,000) (19,000) (21,000) (40,000)
-------------- ----------- ---------- ----------
Total 1,509,000 1,278,000 2,744,000 2,263,000
INCOME (LOSS) BEFORE INCOME TAXES 16,000 1,087,000 (85,000) 1,602,000
Provision (benefit) for income taxes 6,000 435,000 (34,000) 632,000
-------------- ----------- ---------- ----------
NET EARNINGS (LOSS) $ 10,000 652,000 (51,000) 970,000
============== =========== ========== ==========
NET EARNINGS (LOSS)
PER COMMON SHARE 0.00 0.14 (0.01) 0.22
============== =========== ========== ==========
WEIGHTED AVERAGE NUMBER OF
SHARES OUTSTANDING 4,476,000 4,549,000 4,474,000 4,468,000
============== =========== ========== ==========
</TABLE>
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
4
<PAGE>
HI-TECH PHARMACAL CO., INC.
CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
OCTOBER 31,
----------------------------
1996 1995
------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES $ 210,000 662,000
CASH FLOWS USED IN FINANCING ACTIVITIES
Mortgaged property - repayments (95,000) (95,000)
Repayments of equipment debt (176,000) (175,000)
Issuance of common stock 14,000 224,000
Loans from stockholders (48,000) (42,000)
------------- ------------
CASH USED IN FINANCING ACTIVITIES (305,000) (88,000)
CASH FLOWS USED INVESTING ACTIVITIES
Purchases of property, plant and (407,000) (767,000)
equipment
Other assets (35,000) (44,000)
------------- ------------
CASH USED IN INVESTING ACTIVITIES (442,000) (811,000)
NET INCREASE (DECREASE) IN CASH (537,000) (237,000)
Cash at beginning of the period 1,746,000 1,781,000
------------- ------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 1,209,000 1,544,000
============= ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Interest $ 124,000 198,000
Income taxes $ 82,000 351,000
</TABLE>
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
5
<PAGE>
HI-TECH PHARMACAL CO., INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
OCTOBER 31, 1996
BASIS OF PRESENTATION
The accompanying unaudited condensed financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-QSB and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period and six month period
ended October 31, 1996 are not necessarily indicative of the results that may be
expected for the year ending April 30, 1997. For further information, refer to
the financial statements and footnotes thereto for the year ended April 30, 1996
on Form 10K-SB.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiary, Rose Laboratories Inc. In consolidation, all
significant intercompany transactions and balances have been eliminated.
CONTRACT RESEARCH INCOME
Contract research income is recognized as work is completed and as billable
costs are incurred. In some cases, contract research income is based on
attainment of certain designated milestones.
NET EARNINGS (LOSS) PER SHARE
Net earnings (loss) per share is computed based on the weighted average number
of common shares and equivalents outstanding for each period. The effect of
outstanding options and warrants is computed, if dilutive, using the "treasury
stock" method.
INVENTORIES
The components of inventory consist of the following:
<TABLE>
<CAPTION>
OCTOBER 31, April 30,
1996 1996
-------------- ------------
<S> <C> <C>
Raw materials $ 2,375,000 2,380,000
Finished products and work in process 1,003,000 1,266,000
-------------- -------------
$ 3,378,000 3,646,000
============== =============
</TABLE>
6
<PAGE>
HI-TECH PHARMACAL CO., INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
OCTOBER 31, 1996
FIXED ASSETS
The components of net plant and equipment consist of the
following:
<TABLE>
<CAPTION>
October 31, April 30
1996 1996
--------------- ------------
<S> <C> <C>
Land and Building $ 4,534,000 4,342,000
Machinery and equipment 8,902,000 8,751,000
Transportation equipment 13,000 13,000
Computer equipment 332,000 305,000
Furniture and fixtures 133,000 96,000
--------------- ------------
13,914,000 13,507,000
Depreciation and amortization 3,515,000 2,909,000
--------------- ------------
TOTAL FIXED ASSETS $ 10,399,000 10,598,000
=============== ============
</TABLE>
WORKING CAPITAL REVOLVING LOAN
The Company has a working capital credit line with a bank of $2,000,000 which
expires in January 1997 and bears interest at the bank's prime interest rate,
8.25% at October 31, 1996. The Company believes that such credit line will be
extended.
7
<PAGE>
HI-TECH PHARMACAL CO., INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
OCTOBER 31, 1996
ACCOUNTS PAYABLE AND ACCRUED EXPENSES
The components of accounts payable and accrued expenses consist of the
following:
<TABLE>
<CAPTION>
OCTOBER 31, APRIL 30,
1996 1996
------------ -----------
<S> <C> <C>
Accounts payable $ 2,147,000 2,269,000
Accrued expenses 959,000 723,000
------------ -----------
$ 3,106,000 2,992,000
============ ===========
</TABLE>
CONTINGENCIES AND OTHER MATTERS
Rugby Laboratories, previously the Company's largest customer, accounted for
approximately 16.9% of the shipments during the quarter, a decrease from 20.4%
for the respective quarter in fiscal 1995. Rugby Laboratories had shipments of
only 6% of the Company's shipments during the quarter ended July 31, 1996 and
therefore shipments may fluctuate in the future. Goldline Laboratories accounted
for approximately 17.0% of the shipments during the quarter, a decrease from
23.3% for the quarter ended October 31, 1995. These customers represented
approximately 41% of the outstanding trade receivables at October 31, 1996.
LEASED FACILITY
On July 18, 1996, the Company executed a lease for a 50,000 square foot building
in Amityville, New York. The lease commenced on August 1, 1996 and expires
January 31, 2003. The initial annual base rent is $157,000 and is payable in
monthly installments of $13,125. The Company is responsible for all operating
costs of this facility and has the option to purchase the premises at the end of
the lease for $1,300,000.
ITEM 2
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
OCTOBER 31, 1996
For the six months ended October 31, 1996 net sales increased by $ 131,000 , or
1.4% compared to the fiscal 1995 respective period. Total six months net sales
were $ 9,431,000 for the period ended October 31, 1996. For the three months
ended October 31, 1996 net sales decreased by $ 161,000 , or 3.0% compared to
the fiscal 1995 respective period. Total three months net sales were $5,276,000
for the period ended October 31, 1996. Rugby Laboratories, previously the
Company's largest customer, accounted for approximately 16.9% of the shipments
during the quarter, a decrease from 20.4 % for the respective quarter in fiscal
1995. Rugby Laboratories had shipments of only 6% of the Company's shipments
during the quarter ended July 31, 1996 and therefore shipments may fluctuate in
the future. Goldline Laboratories accounted for approximately 17.0% of the
shipments during the quarter, a decrease from 23.3% for the quarter ended
October 31, 1995. These customers represented approximately 41% of the
outstanding trade receivables at October 31, 1996.
8
<PAGE>
Health Care Products division for the three months ended October 31, 1996 and
1995 had sales of $910,000 and $996,000, respectively. Rose Laboratories had
sales of $256,000 and $248,000, respectively, for the three months ended October
31, 1996 and 1995.
Health Care Products division for the six months ended October 31, 1996 and 1995
had sales of $1,074,000 and $1,416,000, respectively. Rose Laboratories had
sales of $450,000 and $557,000, respectively, for the six months ended October
31, 1996 and 1995.
Cost of sales, as a percentage of net sales, increased from 58.4% to 71.8% for
the six months ended October 31, 1996 compared to the six months ended October
31, 1995 and increased from 56.5% to 71.1% for the three months ended October
31, 1996 compared to the three months ended October 31, 1995. During the six
months ended October 31, 1996 this increase was principally the result of the
costs in excess of revenues associated with the sterile manufacturing facility
including Labor $218,000; Depreciation $207,000; Factory supplies and expense
$232,000. The Company will incur additional expense over the initial start-up
period and in the future as the unit volume manufactured increases such unit
excess costs will diminish.
Research and product development costs for the three months ended October 31,
1996 increased $84,000 or 53.2% compared to the fiscal 1995 respective period,
as a result of the Company's efforts to develop new products.
Selling, general and administrative expenses, as a percentage of net sales,
increased for the three months to 24.1% from 22.0%. Such percentage increased
principally from increased advertising and promotion expenses which are expected
to result in future sales.
Net income for the three months ended October 31, 1996 and 1995 was $10,000 and
$652,000, respectively, a decrease of $642,000, because of the factors noted
above. Net income (loss) for the six months ended October 31, 1996 and 1995 was
$(51,000) and $970,000, respectively, a decrease of $1,021,000, because of the
factors noted above.
MANAGEMENT'S DISCUSSION AND ANALYSIS - LIQUIDITY AND CAPITAL RESOURCES
The Company's operations are financed principally by cash flow from operations.
During the period ended October 31, 1996, working capital decreased to
$5,018,000 from $5,164,000 at April 30, 1996. During the quarter ended October
31, 1996 the Company invested $407,000 in fixed assets.
The Company has constructed a sterile manufacturing facility for the purpose of
manufacturing ophthalmic and otic products. This facility and the required
systems and procedures were completed in the last three months of Fiscal 1996.
Although the Company has not previously manufactured sterile products, the
Company believes that it will be able to operate this facility profitably over
the long term. However, the Company will incur additional expense over the
initial start-up period.
The Company has a working capital credit line with a bank of $2,000,000 which
expires in January 1997 and bears interest at the bank's prime interest rate,
8.25% at October 31, 1996. The Company believes that such credit line will be
extended.
The Company's management believes that its financial resources, operating
revenue and credit line will be sufficient to meet its expected working capital
requirements.
Statements in this report that are not descriptions of historical facts may be
forward-looking statements that are subject to various risks and uncertainties.
Actual results could differ materially from those currently anticipated.
9
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
An annual meeting of security holders was held on October 9, 1996. The
Company solicited proxies and 4,184,031 shares were present in person and by
proxy.
Set forth is the number of votes cast for, against or withheld as to each
item voted upon.
(i) Election of Directors For Withhold
--------------------- --------- --------
Bernard Seltzer 4,000,581 183,450
David S. Seltzer 4,000,581 183,450
Reuben Seltzer 4,000,581 183,450
Martin M. Goldwyn 4,000,581 183,450
Yashar Hirshaut, M.D. 4,000,581 183,450
(ii) A change in the state of incorporation of the Company from New York
-------------------------------------------------------------------
to Delaware
-----------
For Against Abstain
--------- ------- -------
3,020,495 175,200 8,165
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit 10.14 - Lease Agreement between the Company and Chigi Realty Corp.
dated July 18, 1996.
Exhibit 27 - Financial Data Schedule
(b) Reports on Form 8-K
None
10
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has
duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
HI-TECH PHARMACAL CO., INC.
(REGISTRANT)
Date December 16, 1996
By:
/s/ Bernard Seltzer
- -------------------------------------------
Bernard Seltzer,
(President and Chief Executive Officer)
Date December 16, 1996
By:
/s/ Arthur S. Goldberg
- -------------------------------------------
Arthur S. Goldberg
(Vice President - Finance and Chief Accounting Officer)
11
<PAGE>
EXHIBIT 10.14
This Agreement between CHIGI REALTY CORP., 47 Wellington Place, Amityville, New
York 11701 as Landlord and HI-TECH PHARMACAL CO., INC., 369 Bayview Avenue,
Amityville, New York 11701 as Tenant
Witnesseth: The Landlord hereby leases to the Tenant the following premises:
13 Edison Street East, Amityville, New York, a premises containing approximately
50,000 +/-square feet for the term of six and one half (6 and 1/2 years) to
commence from the 1st day of August, 1996 and to the end on the 31st day of
January, 2003 to be used and occupied only for manufacturing, storage and
shipping of pharmaceutical products upon the conditions and covenants following:
1st. That the Tenant shall pay the annual rent of SEE PARAGRAPH 28 OF RIDER FOR
ANNUAL BASE RENT, PAYABLE MONTHLY, ON THE FIRST OF EACH MONTH.
2nd. That the Tenant shall take good care of the premises and shall, at the
Tenant's own cost and expense make all repairs of every and any kind, including
structural and roof, and at the end or other expiration of the term, shall
deliver up the demised premises in good order or condition, damages by the
elements excepted.
3rd. That the Tenant shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State
and Local Governments and of any and all their Departments and Bureaus
applicable to said premises, for the correction, prevention, and abatement of
nuisances or other grievances, in, upon, or connected with said premises during
said term; and shall also promptly with and execute all rules, orders and
regulations of the New York Board of Fire Underwriters, or any other similar
body, at the Tenant's own cost and expense.
4th. That the Tenant, successors, heirs, executors or administrators shall not
assign this agreement, or underlet or underlease the premises, or any part
thereof, or make any alterations on the premises, without the Landlord's consent
in writing; or occupy, or permit or suffer the same to be occupied for any
business or purpose deemed disreputable or extra-hazardous on account of fire,
under the penalty of damages and forfeiture, and in the event of a breach
thereof, the term herein shall immediately cease and determine at the option of
the Landlord as if it were the expiration of the original term. See (P) 39.
5th. Tenant must give Landlord prompt notice of fire, accident, damage or
dangerous or defective condition. If the Premises can not be used because of
fire or other casualty, Tenant is not required to pay rent for the time the
Premises are unusable. If part of the Premises can not be used, Tenant must pay
rent for the usable part. Landlord shall have the right to decide which part of
the Premises is usable. Landlord need only repair the damaged structural parts
of the Premises. Landlord is not required to repair or replace any equipment,
fixtures, furnishings or decorations unless originally installed by Landlord.
Landlord is not responsible for delays due to settling insurance claims,
obtaining estimates, labor and supply problems or any other cause not fully
under Landlord's control. See (P) 72.
<PAGE>
If the fire or other casualty is caused by an act or neglect of Tenant,
Tenant's employees or invitees, or at the time of the fire or casualty Tenant is
in default in any term of this Lease, then all repairs will be made at Tenant's
expense and Tenant must pay the full rent with no adjustment. The cost of the
repairs will be added rent.
Landlord has the right to demolish or rebuild the Building if there is
substantial damage by fire or other casualty. Landlord may cancel this Lease
within 30 days after the substantial fire or casualty by giving Tenant notice of
Landlord's intention to demolish or rebuild. The Lease will end 30 days after
Landlord's cancellation notice to Tenant. Tenant must deliver the Premises to
Landlord on or before the cancellation date in the notice and pay all rent due
to the date of the fire or casualty. If the Lease is cancelled Landlord is not
required to repair the Premises or Building. The cancellation does not release
Tenant of liability in connection with the fire or casualty. This Section is
intended to replace the terms of New York Real Property Law Section 227.
6th. The said Tenant agrees that the said Landlord and the Landlord's agents
and other representatives shall have the right to enter into and upon said
premises, or any part thereof, at all reasonable hours for the purpose of
examining the same, or making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
7th. The Tenant also agrees to permit the Landlord or the Landlord's agents
upon notice to the Tenant to show the premises to persons wishing to hire or
purchase the same; and the Tenant further agrees that on and after the sixth
month, next preceding the expiration of the term hereby granted, the Landlord or
the Landlord's agents shall have the right to place notices on the front of said
premises, or any part thereof, offering the premises "To Let" or "For Sale", and
the Tenant hereby agrees to permit the same to remain thereon without hindrance
or molestation.
8th. That if the said premises, or any part thereof shall be deserted or become
vacant during said term, or if any default be made in the payment of the said
rent or any part thereof, or if any default be made in the performance of any of
the covenants herein contained, the Landlord or representatives may re-enter the
said premises by force, summary proceedings or otherwise, and remove all persons
therefrom, without being liable to prosecution thereof, and the Tenant hereby
expressly waives the service of any notice in writing of intention to re-enter,
and the Tenant shall pay at the same time as the rent becomes payable under the
terms hereof a sum equivalent to the rent reserved herein, and the Landlord may
rent the premises of behalf of the Tenant, reserving the right to rent the
premises for a longer period of time than fixed in the original lease without
releasing the original Tenant from any liability, applying any moneys collected,
first to the expense of resuming or obtaining possession, second to restoring
the premises to a rentable condition, and then to the payment of the rent and
all other charges due and to grow due to the Landlord, any surplus to be paid to
the Tenant, who shall remain liable for any deficiency.
9th. Landlord may replace, at the expense of Tenant, any and all broken glass
in and about the demised premises. Landlord may insure, and keep insured, all
plate glass in the demised premises for and in the name of Landlord. Bills, for
the premiums therefor shall be rendered by Landlord to Tenant at such times as
Landlord may elect, and shall be due from, and payable by
<PAGE>
Tenant when rendered, and the amount thereof shall be deemed to be, and be paid
as, additional rental. Damage and injury to the said premises, caused by the
carelessness, negligence or improper conduct on the part of the said Tenant or
the Tenant's agents or employees shall be repaired as speedily as possible by
the Tenant at the Tenant's own cost and expense.
10th. That the Tenant shall neither encumber nor obstruct the sidewalk in front
of, entrance to, or halls and stairs of said premises, nor allow the same to be
obstructed or encumbered in any manner.
11th. The Tenant shall neither place, or cause or allow to be placed, any sign
or signs of any kind whatsoever at, in or about the entrance to said premises or
any other part of same, except in or at such place or places as may be indicated
by the Landlord and consented to by the Landlord in writing. And in case the
Landlord or the Landlord's representatives shall deem it necessary to remove any
such sign or signs in order to paint the said premises or the building wherein
same is situated or make any other repairs, alterations or improvements in or
upon said premises or building or any part thereof, the Landlord shall have the
right to do so, providing the same be removed and replaced at the Landlord's
expense, whenever the said repairs, alterations or improvements shall be
completed. See (P) 38.
12th. That the Landlord is exempt from any and all liability for any damage or
injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of said
building or from any damage or injury resulting or arising from any other cause
or happening whatsoever unless said damage or injury be caused by or be due to
the negligence of the Landlord.
13th. That if default be made in any of the covenants herein contained, then it
shall be lawful for the said Landlord to re-enter the said premises, and the
same to have again, re-possess and enjoy. See (P) 73.
14th. That this instrument shall not be a lien against said premises in respect
to any mortgages that are now on or that hereafter may be placed against said
premises, and that the recording of such mortgages shall have preference and
precedence and be superior and prior in lien of this lease, irrespective of the
date of recording and the Tenant agrees to execute without cost, any such
instrument which may be deemed necessary or desirable to further effect the
subordination of this lease to any such mortgage or mortgages, and a refusal to
execute such instrument shall entitle the Landlord, or the Landlord's assigns
and legal representatives to the option of cancelling this lease without
incurring any expense or damage and the term hereby granted is expressly limited
accordingly.
15th. The Tenant has this day deposited with the Landlord the sum of $ SEE
RIDER (P) 29 as security for the full and faithful performance by the Tenant of
all the terms, covenants and conditions of this lease upon the Tenant's part to
be performed, which said sum shall be returned to the Tenant after the time
fixed as the expiration of the term herein, provided the Tenant has fully and
faithfully carried out all of said terms, covenants and conditions on Tenant's
part to be performed. In the event of a bona fide sale, subject to this lease,
the Landlord shall have the
<PAGE>
right to transfer the security to the vendee for the benefit of the Tenant and
the Landlord shall be considered released by the Tenant from all liability for
the return of such security; and the Tenant agrees to look to the new Landlord
solely for the return of the said security, and it is agreed that this shall
apply to every transfer or assignment made of the security to a new Landlord.
16th. That the security deposited under this lease shall not be mortgaged,
assigned or encumbered by the Tenant without the written consent of the
Landlord.
17th. It is expressly understood and agreed that in case the demised premises
shall be deserted or vacated, or if default be made in the payment of the rent
or any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this lease or if default be
made in the performance of any of the covenants and agreements in this lease
contained on the part of the Tenant to be kept and performed, or if the Tenant
shall fail to comply with any of the statutes, ordinances, rules, orders,
regulations and requirements of the Federal, State and Local Governments or of
any and all their Departments and Bureaus, applicable to said premises, or if
the Tenant shall file or there be filed against Tenant a petition in bankruptcy
or arrangement, or Tenant be adjudicated a bankrupt or make an assignment for
the benefit of creditors or take advantage of any insolvency act, the Landlord
may, if the Landlord so elects, at any time thereafter terminate this lease and
the term hereof, on giving to the Tenant five days' notice in writing of the
Landlord's intention so to do, and this lease and the term hereof shall expire
and come to an end on the date fixed in such notice as if the said date were the
date originally fixed in this lease for the expiration hereof. Such notice may
be given by mail to the Tenant addressed to the demised premises.
18th. Tenant shall pay to Landlord the rent or charge, which may, during the
demised term, be assessed or imposed for the water used or consumed in or on the
said premises, whether determined by meter or otherwise, as soon as and when the
same may be assessed or imposed, and will also pay the expenses for the setting
of a water meter in the said premises should the latter be required. Tenant
shall pay Tenant's proportionate part of the sewer rent or charge imposed upon
the building. All such rents or charges or expenses shall be paid as additional
rent and shall be added to the next month's rent thereafter to become due.
19th. That the Tenant will not nor will the Tenant permit undertenants or other
persons to do anything in said premises, or bring anything into said premises,
or permit anything to be brought into said premises or to be kept therein, which
will in any way increase the rate of fire insurance on said demised premises,
nor use the demised premises or any part thereof, nor suffer or permit their use
for any business or purpose which would cause an increase in the rate of fire
insurance on said building, and the Tenant agrees to pay on demand any such
increase.
20th. The failure of the Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that the Landlord may have, and shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and covenants
herein contained. This instrument may not be changed, modified, discharged or
terminated orally.
<PAGE>
21st. 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 against
Landlord for the value of any unexpired term of said lease. No part of any award
shall belong to the Tenant.
22nd. If after default in payment of rent or violation of any other provision of
this lease, the Tenant moves out or is dispossessed and fails to remove any
trade fixtures or other property prior to such said default, removal, expiration
of lease, or prior to the issuance of the final order or execution of the
warrant, then and in that event, the said fixtures and property shall be deemed
abandoned by the said Tenant and shall become the property of the Landlord.
23rd. In the event that the relation of the Landlord and Tenant may cease or
terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference between the rent reserved and the
rent collected and received, if any, by the Landlord during the remainder of the
unexpired term, such difference or deficiency between the rent herein reserved
and the rent collected, if any, shall become due and payable in monthly payments
during the remainder of the unexpired term, as the amounts of such difference or
deficiency shall from time to time be ascertained; and it is mutually agreed
between Landlord and Tenant that the respective parties hereto shall and hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other on any matters whatsoever arising out of
or in any way connected with this lease, the Tenant's use or occupancy of said
premises, and/or any claim of injury or damage.
24th. The Tenant waives all rights to redeem under any law of the State of New
York.
25th. 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 nowise be affected, impaired or excused because Landlord is
unable 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 or fixtures if Landlord is prevented or delayed from so
doing by reason of governmental preemption in connection with a National
Emergency or in connection with any rule, order or regulation of any department
or subdivision thereof of any governmental agency or by reason of the condition
of supply and demand which have been or are affected by war or other emergency.
26th. No diminution or abatement of rent, or other compensation, shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its appliances, not for any space
taken to comply with any law, ordinance or order of a governmental authority.
In respect to the various "services", if any, herein expressly or impliedly
agreed to be furnished by the Landlord to the Tenant, it is agreed that there
shall be no diminution or abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" when such interruption or
curtailment shall be due to accident, alterations or repairs desirable or
necessary to be made or to inability or difficulty in securing supplies or labor
for the maintenance of such "service" or to some other cause, not gross
negligence on the part of the Landlord. No such interruption or curtailment of
any such "service" shall be deemed a constructive eviction. The Landlord shall
not be required to furnish, and the Tenant shall not be entitled to receive, any
of such "services" during any period wherein the Tenant shall be in default in
respect to the payment of rent. Neither shall there be any abatement or
diminution of rent because of making of repairs, improvements or decorations to
the demised premises after the date above fixed for the commencement of the
term, it being understood that rent shall, in any event, commence to run at such
date so above fixed.
27th. Landlord shall not be liable for failure to give possession of the
premises upon commencement date by reason of the fact that premises are not
ready for occupancy or because a prior Tenant or any other person is wrongfully
holding over or is in wrongful possession, or for any other reason. The rent
shall not commence until possession is given or is available, but the term
herein shall not be extended. See (P) 74.
SEE RIDER HERETO ANNEXED 28-74 SS BS
IN THE EVENT OF A CONFLICT BETWEEN THE PRINTED AND TYPEWRITTEN PORTIONS OF
THIS LEASE, THE TYPEWRITTEN RIDER, COMMENCING WITH PARAGRAPH 28, THROUGH THE
CONCLUSION THEREOF, SHALL BE DEEMED TO CONTROL AND THE RIDER SUPERCEEDS THE
PRINTED PORTION HEREOF.
And the said Landlord doth covenant that the said Tenant on paying the said
yearly rent, and performing the covenants aforesaid, shall and may peacefully
and quietly have, hold and enjoy the said demised premises for the term
aforesaid, provided however, that this covenant shall be conditioned upon the
retention of title to the premises by the Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and agreements
contained in the written lease shall be binding upon the parties hereto and upon
their respective successors, heirs, executors and administrators.
IN WITNESS WHEREOF, the parties have interchangeably set their hands and seals
(or caused these presents to be signed by their proper corporate officers and
caused their proper corporate seal to be hereto affixed) this 18th day of July,
1996.
<TABLE>
<S> <C>
Signed, sealed and delivered CHIGI REALTY CORPORATION
in the presence of By: /s/ Steven Wm. Schwartz
Joan C. Fitzsimons ---------------------------
Steven Wm. Schwartz
HI-TECH PHARMACAL CO., INC.
By: /s/ Bernard Seltzer
-----------------------------
Bernard Seltzer, Pres.
</TABLE>
<PAGE>
RIDER TO LEASE
CHIGI REALTY CORP., LANDLORD
TO
HI-TECH PHARMACAL CO., INC., TENANT
PREMISES 13 EDISON STREET EAST
AMITYVILLE, NEW YORK
28. This ia a NET lease. The base rent for the subject premises is the annual
rental sums, payable monthly as follows:
<TABLE>
<CAPTION>
YEAR OF LEASE ANNUAL RENT MONTHLY RENT
<S> <C> <C>
1 $ 157,500.00 $ 13,125.00
2 164,000.00 13,666.66
3 170,500.00 14,208.33
4 177,500.00 14,791.66
5 184,500.00 15,375.00
6 192,000.00 16,000.00
7(six months) 199,500.00 16,625.00
</TABLE>
In addition to the provisions of this paragraph, the tenant shall pay, as
additional rent, the other charges set forth herein in the following paragraphs:
# 2 repairs
# 30 liability insurance
# 31 mechanic's lien bonding or removal
# 35 additional obligations of tenant performed by landlord late
charges
# 36 any utilities chargeable to the landlord or for which the
landlord shall ultimately be responsible to pay
# 37 insurance coverage and service policy on building mechanicals
# 40 fire insurance
# 45 real estate taxes
# 47 landscaping and snow removal
# 50 indemnification and attorneys fees
# 52 rent insurance
# 53 late charges
# 55 maintenance and repairs
# 56 additional charges
# 59 permits and worker's compensation insurance
29. The security posted hereunder (paragraphs 15 and 16) shall bear interest,
which interest shall be deemed additional security belonging to the tenant but
posted as security under and
<PAGE>
pursuant to this lease. The initial amount deposited into the security account
shall be the sum of THIRTY THREE THOUSAND ($33,000.00) DOLLARS. Every two years
there will be added to security an amount equal to fifty (50%) per cent the
amount of tax increase the tenant is required to pay over the base taxes
provided that the total increase the tenant is required to pay is in excess of
five (5%) per cent of the base taxes.
30. The tenant agrees to provide and keep in full force and effect during the
term of this lease, for the benefit of the landlord, general liability insurance
in standard form protecting the landlord against any liability whatsoever
occasioned by accident in or about the demised premises. The landlord shall be
named as an additional insured thereunder and shall be protected against all
liability occasioned by any occurrence insured against. Such policy or policies
shall cover the leased premises and shall provide for at least thirty (30) days
notice to the landlord before cancellation or non-renewal. A certification
thereof shall be delivered to the landlord prior to the tenant taking possession
of the premises. Said insurance policy(s) shall provide for a minimum coverage
of TWO MILLION ($2,000,000.00) DOLLARS combined single limit (CSL) coverage for
any one occurrence. In the event that any claim is made against the landlord,
the policy required to be supplied by the tenant shall be deemed primarily
liability insurance coverage for the landlord and the landlord's liability
insurance policy shall be deemed secondary coverage. In the event the tenant
fails to effect such insurance, or fails to maintain the same, the landlord may
elect to obtain the same and add the cost thereof to the installment of rent for
the month next ensuing and the amount thereof shall be deemed additional rent.
31. If any mechanic's lien or lien's are filed against the subject premises for
work done by or at the request of the tenant or for materials furnished in
connection therewith, the tenant shall, within forty-five (45) days after the
filing of the said lien, and at the tenant's sole cost and expense, cause the
same to be removed and discharged by payment, Court Order or Bond as is provided
for by law. In the event the tenant fails to so cause the lien(s) to be
discharged, the landlord may elect to cancel this lease and/or cause the
said liens to be paid and the costs thereof, including all reasonable attorneys
fees connected therewith, shall be deemed as additional rent for which the
tenant shall immediately be responsible.
32. All annexations to the freehold made or installed in such a manner that
their removal would cause injury to the freehold shall be the property of the
landlord, at the option of the landlord, and may not be removed without the
consent of the landlord, trade fixtures excepted. Trade fixtures shall be deemed
the property of the tenant and may be removed by the tenant provided that all
injury to the freehold resulting therefrom shall be repaired at the expense of
the tenant. Should the tenant vacate the subject premises for any reason
whatsoever, all property left in the subject premises shall, at the option of
the landlord, be deemed abandoned by the said tenant and shall become the
property of the landlord. No through the roof or through any outside wall
construction shall be done without the advance written consent of the landlord.
33. There are no representations, warranties, terms or obligations other than
those expressed in this agreement. No variation or modification of this lease
shall be deemed valid unless signed by the party to be charged therewith. Any
holding over by the tenant after the expiration of the term or any option herein
or hereinafter granted in writing shall be unlawful and shall in no
<PAGE>
manner constitute a renewal or extension of this lease.
34. The landlord shall not be liable for any damage or injury to person or
property arising out of any claimed defect to the premises unless written notice
of any defect alleged to have caused such damage or injury shall have been given
to the landlord at least thirty (30) days before such occurrence to enable the
landlord to have sufficient and reasonable time to correct such defect. Nothing
herein contained shall be deemed to impose upon the landlord any additional
obligations or any obligation to make repairs. The tenant waives the right to
interpose any counterclaims as against the landlord in any landlord tenant
proceeding seeking to recover rent, but rather reserves the same to a plenary
action therefor unless compliance with the provisions of paragraph 67 hereof is
accomplished.
35. It is mutually covenanted and agreed that in the event the landlord shall
be required or shall reasonably pay or be compelled to pay any sum of money, or
shall reasonably perform any act or be compelled to perform any act, which act
shall require the payment of any sum of money by reason of the failure of the
tenant to perform any one or more of the covenants herein contained, such sum,
after ten (10) days notice to the tenant, in writing, shall be added to the
installment of rent for the next month and shall be deemed as additional rent.
36. The tenant agrees at its own cost and expense to pay for all electricity,
gas, water, fuel, all utilities and services used and consumed by it, and to
keep the demised premises, including the parking area, in a neat and orderly
fashion and to provide for garbage and debris removal, it being the
understanding and intention of the parties hereto that the tenant hires the
premises and the landlord rents the premises to the tenant without any service
of any kind whatsoever. The foregoing shall include the requirement of the
tenant to post whatever deposit may be required by the appropriate utility
company or to reimburse the landlord for any deposit so made. In the event that
the premises has a separate septic tank or cesspool, the tenant shall maintain,
repair or replace the same at tenant's own cost and expense. The landlord will
repair pot holes that exist in the parking lot at the commencement of this lease
and check and clean, if necessary, dry wells. The landlord will also paint over
graffiti on the walls of the premises. The tenant shall thereafter be
responsible to maintain the parking lot, repair pot holes, if any, as they
occur, maintain dry wells and keep the building free of graffiti.
37. a. There are certain air conditioning units in the premises. The tenant
shall accept them in an "as is" condition. At the commencement of occupancy of
the premises the parties shall jointly inspect the premises and make a schedule
of those units which are in working condition and those units that are not in
working condition. With respect to those units that are in working condition,
as well as with respect to any units that the tenant repairs, makes operable,
replaces or adds to the premises, and in addition thereto, with respect to oil
and gas heat, the tenant agrees to provide and to keep in full force and effect
during the term of this lease, for the benefit of the landlord, insurance
coverage and maintenance contract(s) on the heating units, air conditioning
units, boilers and any and all equipment operated by the tenant in the subject
premises protecting the landlord against any damages incurred by accident or
malfunction of said heating units, air conditioning units, boilers or equipment
in or about the demised premises and to insure repair thereof. A certification
thereof shall be delivered to the landlord, naming the landlord as an
<PAGE>
additional insured, shall remain in full force and effect during the term of
this lease, and shall provide for at least thirty (30) days notice to the
landlord in advance of any cancellation or non-renewal. In the event the tenant
fails to effect such insurance, or fails to maintain the same, the landlord may
elect to obtain the same and add the cost thereof to the installment of rent for
the month next ensuing and the amount thereof shall be deemed additional rent.
b. In lieu of maintaining insurance or service contracts as above set
forth, the tenant may maintain those units with its own properly experienced and
trained staff.
c. If the tenant desires to remove any hanging oil fired heating units
and not replace them, the tenant shall be permitted to do so upon obtaining, in
advance, the written consent of the landlord.
38. The tenant may, with the advance consent of the landlord, after tenant
submits plans and specifications therefore, and which consent will not be
unreasonably withheld, make leasehold improvements and install or erect a sign
or signs on the demised premises and to affix the same thereto, provided the
tenant shall first obtain whatever municipal approvals and/or permits may be
required therefor. Said municipal approval(s), if required, shall be obtained
by the tenant at the tenant's own cost and expense.
39. Notwithstanding anything herein contained to the contrary, the landlord's
consent to the tenant either assigning or sub-letting either all of the demised
premises or any part thereof, shall not be unreasonably withheld; however, the
following conditions for any requested consent shall be deemed to apply in
addition to whatever other reasonable requests may be made by the landlord:
a. Any such assignment or sublease shall be limited to the use for which
the tenant has actually conducted its business during the expired portion of the
lease;
b. Each assignment or sub-lease shall be in writing and shall contain an
agreement whereby the assignee or sub-tenant shall assume all of the
obligations of the tenant to the landlord;
c. No assignment or sub-lease shall be valid unless at the time of the
making thereof all of the tenant's obligations to the landlord are current;
d. Said agreement, executed by the assignor or tenant-lessee, with the
assumption of the assignee or under-tenant shall be deposited with the landlord
within five (5) days of the making of such assignment or sub-lease;
e. Any such assignment or sub-lease shall specifically set forth what
portion, if any, of the security deposit made by the tenant is assigned to the
credit of the assignee or sub-tenant;
f. Any assignment or sublease shall in no part release the original
tenant or any subsequent assignee or under-tenant from any obligations to the
landlord;
g. One month's additional rent shall be posted with the landlord upon the
making of the first such assignment or sub-lease hereunder and such security
shall be held by the landlord pursuant to the terms of paragraphs 15, 16 and 29
hereof. There shall be no further requirement for the posting of additional
security upon the making of any further assignments or sub-lease agreements.
<PAGE>
h. All assignments or sub-lease agreements shall be made in accordance
with the terms hereof;
i. Sub-Paragraph intentionally omitted; numbering preserved.
j. No assignment of this lease shall be considered by the landlord unless
the assignor tenders to the landlord, with the proposed assignment, payment for
the landlord's legal fee attendant to review and advice concerning the same,
which fee shall be fixed by the landlord's attorney and shall be based upon the
amount of time said attorney is required to devote to the same.
k. Excluded from this restriction against assignment or sublease without
the landlord's consent and the landlord's right to receive any increased rent is
any assignment, sublease or license agreement between the tenant and a
subsidiary thereof wherein the tenant owns at least a fifty-one (51%) stock
interest of said firm. In such event the provisions of sub-paragraph shall not
apply (additional security).
l. In the event the tenant assigns or sub-lets more than forty (40%) per
cent of the premises to other than a subsidiary as is set forth in paragraph (k)
immediately preceding, then and in that event the landlord shall be entitled to
receive, as additional rent, fifty (50%) percent of any rent charged by the
tenant in excess of the rent reserved herein.
m. Neither landlord nor tenant may lease, assign the use of or sub-let the
parking lot.
40. The tenant shall be responsible for fire insurance on the building,
insuring the landlord therefore. However, the landlord shall obtain same and the
tenant shall reimburse the landlord therefor, as additional rent, within 30 days
after receiving a bill therefor. The obligation of the tenant to pay the same
shall be deemed additional rent.
41. The tenant shall store no more than one (1) gallon of flammable liquid or
material on the subject premises at any time. In the event that such materials
are on the subject premises at any time, same shall be securely stored in a
suitable U.L. approved container which shall, in turn, be kept at all times in a
suitable, closed, metal U.L. approved cabinet. At such time as said flammable
liquid or material is in use, only so much thereof as is necessary for immediate
use shall be removed from said container. In the event the tenant reasonably
requires a larger amount of flammable liquid or material for its operations,
same shall be allowed provided same is stored as is above set forth, and further
providing the same does not preclude maintenance of fire insurance on the
subject premises. The tenant must give advance notice to the landlord prior to
storing such additional materials on the premises. The provisions of this
paragraph shall not apply to finished products unless the same are labeled as
flammable, combustible or so rated by the building department or landlord's
insurance carrier.
42. Any and all rags or similar material not in use shall be stored in a
fireproof metal container which shall be covered at all times.
43. All garbage and debris shall be removed from the interior of the premises
at the close of business at the end of each day and placed in containers
approved by the landlord and appropriated municipal agencies.
44. Any violation by the tenant of the lease provisions contained in paragraphs
41, 42, or 43
<PAGE>
hereof, shall, in addition to any other remedy afforded to the landlord herein,
result in paragraph 51 hereof (waiver the right subrogation) being inapplicable
to the subrogation right(s) of the landlord or the landlord's fire or other
insurance carrier.
45. The tenant shall pay as additional rent during each year of the term
herein, and pro rata for the first and last years of the term and any option
periods herein, that portion of the real estate taxes and/or all assessments of
whatsoever kind and nature levied against the demised premises in excess of
those taxes hereinafter defined as the base tax. Said assessments shall include
any and all municipal assessments and charges of every and any kind, including
but not limited to currently or subsequently imposed charges or fees for
municipal pollutant discharge elimination system programs, garbage
assessments, rent taxes and additional fees and charges of any kind. The tenant
shall pay said increase within thirty (30) days of the presentation of a bill
therefore by the landlord together with copies of the tax bills or assessment
notice evidencing the requested payment and tax increase. Said obligation of
the tenant shall be deemed as additional rent for the month next ensuing and the
failure to pay the same shall give to the landlord all remedies of a landlord as
may be provided for by law for the non-payment of rent. The basic tax shall be
those taxes levied against the demised premises for the 1996 Town of Babylon tax
($50,557.91 less sewer arrears of $389.04, for a net of $50,168.87) and the
1995/96 Incorporated Village of Amityville tax ($16,579.36). For purposes of
further clarification, the tenant shall be responsible for garbage collection
charges and sewer tax, whether the same are included in the real estate tax
bills, or billed separately, or both.
46. The parties acknowledge that Island Realty through Mort Glick, d/b/a
Townsend Consultants, Inc., is the sole broker that brought about this leasing
agreement and that the landlord shall pay the commission therefore pursuant to
separate agreement.
47. In the event the premises has landscaping, tenant shall maintain the same
at its own cost and expense. Tenant shall be responsible for its own snow
removal. In the event tenant does not pay the same, the charge therefore shall
be deemed additional rent.
48. In the event the premises has a driveway or a provision for the parking of
vehicles, the tenant shall have the right to park its vehicles only in areas
reasonably designated by the landlord. The tenant shall not permit any vehicle
belonging to the tenant or its employees to obstruct driveways or access to and
in or about the subject or adjoining premises. No fence or gate may be installed
on the premises without the mutual consent of the landlord and the tenant. Each
of the parties hereto agree not to unreasonably withhold consent to the
installation of a fence and/or gate(s) provided the same does not limit the
ingress and egress of the other's property or to the adjacent property which is
owned by Time Construction Corp.
49. The tenant is hereby granted an option to purchase the subject premises.
The following terms and conditions apply to this option:
a. The tenant may give notice to the landlord of its exercise of this
option at any time prior to the commencement of the last twelve months of this
lease.
b. The notice to exercise said option shall be given in writing, either
personally delivered
<PAGE>
to the landlord and obtaining a receipt therefore, or by certified mail, return
receipt requested.
c. In the event of the exercise of the option,
i. The purchase price shall be $1,300,000.00;
ii. The closing shall not take place prior to the end of the term of
the lease, which is January 31, 2003, and if it takes place thereafter, and
while the closing arrangements are pending, the tenant shall be deemed a
holdover tenant subject to the requirement to pay rent at the same rate as was
due for the prior month for a period of two months, and thereafter, should title
not close through no fault of the landlord, rent shall continue at a rate of 25%
over the rent due for the prior month plus all additional rent required to be
paid herein.
<PAGE>
iii. At the time of the exercise of the option the tenant shall
deposit with the tenant's attorney, to be held in escrow, a
5% down payment, to wit, the sum of $65,000.00, and shall
deposit an additional 5%, to wit, the additional sum of
$65,000.00 five months thereafter. A contract shall be
promptly drawn by the seller and negotiations as to the
terms thereof immediately take place, it being within the
contemplation of the parties that the contract shall be
finalized within two (2) months after the exercise of the
option, and contain a closing scheduled as soon as possible
thereafter, within, however, the time restraints contained
in sub-paragraph (ii) above.
iv. The attorney for the seller shall place the down payment
installments thus made in an interest bearing escrow account
(Client's Cash Management Account). In the event title
closes pursuant to the contract, or the down payment is
otherwise payable to the purchaser, the purchaser shall be
given a credit for all interest earned on said account. In
the event the purchaser defaults on said contract, the
interest earned on the down payment shall be deemed part of
the down payment and the interest shall follow the down
payment.
v. In the event of such sale the tenant herein and Time
Construction Corp., the adjoining owner, shall negotiate in
good faith for an appropriate sewer and ingress and egress
easement.
50. In the event the tenant fails to comply with each and every term,
covenant and condition of this lease or does anything whatsoever require the
landlord to take legal action, either by way of commencing or defending any type
of action or proceeding, repair or re-rent the premises, then the tenant hereby
agrees to pay all of the reasonable charges, costs and expenses therefore plus
reasonable attorneys fees. In addition, the tenant shall indemnify and save and
hold the landlord harmless of and from any and all liability, demands, claims,
damages and expenses, including but not limited to attorneys fees resulting
therefrom. In the event the landlord has any other claim other than a claim for
money damages, the attorneys fees for which the tenant shall be responsible
shall be deemed reasonable attorneys fees and shall be such as are awarded by
the Court to which the action is brought. Attorneys fees, costs and expenses
set forth herein shall be deemed additional rent and shall be collectable as
such. Anything contained elsewhere in this lease to the contrary
notwithstanding, if Tenant fails to make any rent payment in full when it is
due, and the full amount owed is not paid within three (3) days after the due
date, the Landlord may serve a written demand therefor, and then, and in such
event, if the default of the tenant is not cured within thirty (30) days after
such notice, all installments of fixed rent for the entire balance of the term
of this lease shall become due and payable immediately without further notice.
Subject to Paragraph 53. SS BS
51. Except as is provided for in paragraphs 41 through 44 inclusive
hereof, each of the parties hereto covenants and agrees with the other that any
claim for damages arising out of fire or explosion and/or related perils caused
by the negligence of the other party shall not be assignable nor the subject of
an action in subrogation by any third party or by either party hereto. Each of
the parties hereto further agrees that the payment to them of any such claims by
any insurance company or companies shall constitute a release of the other party
from any claim or claims arising out of fire, explosion and/or related perils to
the extent of such payment. This provision, however, shall be inoperative in the
event the insurance policy of either the landlord or the tenant, or both, are
violated and unenforceable by the insured as a result hereof.
52. The tenant shall be responsible, as additional rent to the
landlord, for rent insurance premiums for the premises demised herein. Said
additional rent shall be due and payable within thirty (30) days of the landlord
presenting bill to the tenant therefore.
<PAGE>
53. In the event that any payment due to the landlord under any
provision of this lease shall not be received by the landlord within ten (10)
days after the same shall become due, the landlord shall be entitled to, as
additional rent, the sum of five ($.05) cents on each dollar or part thereof
which shall be due, which additional charge shall be for the purpose of
defraying the landlord's expense incidental to the handling of such delinquent
sums. This imposition of this charge shall be an optional non-exclusive remedy
to the landlord.
54. The parties hereto acknowledge that their respective attorneys,
presently retained or retained in the future, are agents in fact for their
respective clients, and any notice required to be given herein by one of the
parties to the other including a petition for dispossess or notice of option
exercise, if any option be contained herein, may be given by the attorney for
the party under the obligation to give such notice. Nothing herein contained,
however, shall be deemed to appoint, any attorney as agent for the purpose of
the receipt of any such notice.
55. The tenant shall be responsible for the total cost and expense to
operate and maintain the premises, including, without limitation, all repairs to
the subject premises gardening, landscaping, cost of public liability insurance,
increase in real estate taxes, assessments, repairs, parking lot maintenance,
lighting, line painting, septic tank or cesspool maintenance and/or replacement,
sewer connection, parking lot drainage, dry wells, sanitary control, removal of
snow, trash, rubbish, debris, garbage and other refuse removal. The landlord
shall have the right to inspect the premises, from time to time, upon reasonable
notice to the tenant and during normal business hours, to ascertain if the
subject premises is being properly maintained. In the event the tenant fails to
properly maintain the same or perform any of the obligations of the tenant to be
performed, the landlord shall have the option to remediate the situation. In the
event that the landlord pays to remediate same, the cost thereof shall be
additional rent which shall be paid to the landlord within thirty (30) days of
the landlord presenting to the tenant an itemized bill therefore.
56. a. The tenant represents that the tenant shall not at any time
dispose of noxious or toxic substances or waste, if any of this type of material
be on the premises at any time, through the sanitary disposal system of the
premises, be it cesspool, septic tank or sewer or through any public or private
sawer or disposal system on or adjoining premises. In the event that any
noxious or toxic substances are used stored, created or otherwise obtained
and/or maintained by the tenant, including heating oil, same shall be at all
times handled in a safe and proper manner and in accordance with all municipal
and governmental standards. At such time as the tenant vacates the premises, be
it at conclusion or termination of this lease or otherwise, the premises shall
be left in a vacant and broom clean condition with no noxious or toxic
substances in or about the premises. The tenant does agree to indemnify and
hold harmless the landlord from any and all damages that may result from the
breach of this lease provision, including but not limited to clean up and repair
or replacement of the premises, elimination of any noxious or toxic substances
and purification of the premises, carting and disposal of such substances,
reasonable attorneys fees, loss of rental due to any dangerous condition thereby
created and any and all losses stemming therefrom, the foregoing list being
intended to be illustrative only and not in limitation of the provisions hereof,
but only to extent that a public or municipal agency, such as the E.P.A. or
D.E.C. could require in such circumstances. The aforesaid indemnification
likewise be applicable to indemnify and hold harmless the landlord from any
third party claim made against the landlord which arises from tenants
activities, actions and operations.
b. In the event the tenant violates the terms of the sub-paragraph
immediately preceding, and causes or permits such materials to be placed upon
the property, then and in that event, if the tenant cleans up and remediates the
problem and posts additional security in the amount of one hundred twenty five
(125%) per cent of the clean up and cure costs or to post an equivalent bond
with the landlord, in which event the occupancy of the tenant shall continue for
the balance of the lease term.
<PAGE>
c. The landlord represents that it is not aware of any contamination
or oil spills or toxic waste at the subject premises. That landlord shall
obtain, at its own cost and expense, a Phase I report on the subject premises
and deliver same to the tenant prior to the tenant, taking occupancy of the
premises. In the event that the Phase I shows condition requiring remediation
by the landlord, the landlord shall commence remediation within a reasonable
time, Non-Friable asbestos tile excluded from the operation of this paragraph.
In the event that the landlord shall not commence remediation within a
reasonable time, or in the event that remediation is commenced and the same
substantially interferes with the tenant's use, occupancy and operations within
the premises, then and in that event the tenant may cancel this lease. For
purposes of this paragraph, substantial is defined as twenty five per cent (25%)
or more of the premises available to the tenant for a period of forty five (45)
days or more.
57. If, during the term of this lease or tenant's occupancy of the
demised premises landlord or any predecessor in title to the premises, which the
demised premises are a part is required to undertake the removal, clean-up,
neutralization or any other affirmative act with respect to the presence or
suspected presence at, on or under said presence of hazardous, toxic or
dangerous materials or substances, whether of the landlord's own choice or as
the result of a directive or order from any governmental authority or court
having jurisdiction, resulting from other than the tenant's actions, the tenant
specifically acknowledges and agrees that any such action shall not be a breach
of the covenant of quiet enjoyment of the premises and further, the tenant shall
be entitled to any diminution abatement of rent in such event notwithstanding
any other provisions of this lease to the contrary. Tenant further agrees to
cooperate fully with the landlord in connection with any such actions. The cost
of such removal shall be borne by landlord except as otherwise herein set forth.
58. Paragraph intentionally omitted; numbering preserved.
59. Tenant shall, at its own cost and expense, obtain the necessary
permits, certificates of occupancy and/or certificates of completion for any and
all improvements made to the subject premises by the tenant, in the event such
are required by the appropriate municipal authorities. The landlord shall not
unreasonably withhold consent to the execution of any documents necessary
therefor. Prior to the commencement of any such improvement the tenant shall
furnish to the landlord the contractor's certificate of Worker's Compensation
Insurance and general liability insurance in the amount of at least
$1,000,000.00 naming the landlord as an additional insured. In the event the
tenant fails to comply herewith, the landlord may do so at the expense of the
tenant, which expense shall include any and all insurance premiums costs to
legalize the said addition(s) and the landlord's attorneys fees, all of the
foregoing being deemed as additional rent hereunder.
60. Tenant shall look only to landlord's estate and property in the
land and building (or the proceeds thereof) leased herein for the satisfaction
of the tenant's remedies for the collection of a judgment or other judicial
process requiring the payment of money by the landlord in the event of any
default by the landlord hereunder, and no other property or assets of the
landlord or it's partners or principals, 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
the landlord and tenant hereunder or tenants use or occupancy of the premises.
61. The tenant does hereby agree that it will at any time, and time
to time, upon ten (10) days notice by the landlord, execute, acknowledge and
deliver to the landlord a statement in writing certifying that the lease or the
lease as modified, as the case may be, represents the entire agreement between
the parties, further certifying that no rent has been paid in advance, and
further, whether there are any existing defenses or offsets which the tenant has
against the enforcement of the lease by the landlord. The failure of the tenant
to so comply with the foregoing shall be
<PAGE>
construed as authorizing the landlord, as attorney-in-fact for the tenant, to
execute such agreement and shall likewise be a default hereunder.
62. If the tenant shall holdover after the end of the term, such
holding over shall be unlawful and in no manner constitute a renewal or an
extension of the lease, and no notice of any kind shall be required prior to the
commencement of summary proceedings, and tenant hereby waives any such right.
However, during such time tenant shall abide by all the obligations of this
lease including payment of rent at a monthly rate equal to one and one half
times the amount during the final month of occupancy before the end of the
expired term, plus any escalations or additional rent provided for herein.
However, if as a result of negotiations a new lease or a lease extension is
executed within sixty (60) days after the expiration of the term of this lease,
the new negotiated rent shall be retroactive to the commencement of the new
lease term.
63. It is understood and agreed by and between the parties hereto
that in the event the landlord makes application to a bank, insurance company or
lending institution for a mortgage loan, any financial statements of the tenant,
prepared by a Certified Public Accountant, are required by said lending
institution, then in that event tenant hereby agrees to promptly furnish the
same to the landlord upon landlord request.
64. It is understood and agreed that the mailing and/or furnishing,
and delivery of this agreement does not constitute an offer and shall not have
any validity or be binding upon any party whatsoever until each party shall
execute said lease agreement and a fully executed copy delivered to each party.
65. The landlord makes no representation as to the permitted uses
allowed by the appropriate municipal agencies and further makes no
representation as to zoning or other municipal regulations applicable to the use
of the demises premises.
66. If, after the landlord shall have made a payment of the real
estate tax pass through, said landlord shall receive a refund of portion of the
real estate taxes payable for any comparative year after the base tax year on
which such payment of additional rent shall have been based, as a result of a
reduction of such real estate taxes by final determination of legal proceedings,
settlement or otherwise, the landlord shall within thirty (30) days after
receiving the refund, pay to tenant that percentage of the refund due the
tenant, less that percentage of expenses (including attorneys' and appraisers'
fees) incurred by the landlord in connection with any such application or
proceeding. If prior to the payment of taxes for any comparative year the
landlord shall have obtained a reduction of that comparative year's assessed
valuation of the premises and therefore of said taxes, then the term "real
estate taxes" for that comparative year shall be deemed to include the amount of
landlord's expenses in obtaining such reduction in assessed valuation including
attorneys' and appraisers' fees. The landlord shall document the figures and
items effecting said adjustment.
67. The landlord and the tenant do hereby mutually agree to waive a
trial by jury in any action or proceeding brought by either as against the other
with regard to any matters arising out of or in any way connected with this
lease, the relationship of landlord and tenant and the tenant's use of the
demised premises. The tenant further agrees that in the event an action or
proceeding is commenced by the landlord for the recovery of basic rent or
additional rent hereunder, the said tenant shall not interpose any counterclaim,
seek any set off or seek to, consolidate the landlord's action or proceeding
against the tenant with any other action or proceeding involving the tenant
unless the tenant posts a bond or escrow with an escrowee reasonably
satisfactory to the landlord to cover all rent and additional rent herein, as it
accrues during the course of the litigation.
68. Tenant acknowledges that it has inspected the premises, knows the
condition thereof and accepts the premises "AS IS", except that the premises
shall be delivered to the tenant vacant and broom clean.
<PAGE>
69. At the conclusion of this lease, should the tenant not purchase
the same, the tenant shall furnish to the landlord a Phase I environmental
assessment of the subject premises and in the event that any contamination is
revealed, the tenant shall remediate the same at the cost and expense of the
tenant. In the event any contamination caused by the tenant or suffered upon
the property during tenant's occupancy has to be remediated by the tenant, rent
shall accrue and be due and payable monthly, at a rate of one hundred fifty
(150%) percent of the prior month's rent after forty five (45) days should the
same not be remediated by that time, plus all pro rata additional real estate
taxes (above the base) and insurance, and all losses sustained by the landlord
due to its inability to re-rent the subject premises.
70. At the time the tenant surrenders the subject premises to the
landlord, should the tenant not exercise its option to purchase the same, the
premises shall be delivered vacant and broom clean, with all mechanicals in
working order, subject, however, to the provisions contained in paragraph 37
hereof.
71. The tenant shall have the right of first refusal with respect to
the purchase of the subject premises. The Landlord shall serve either
personally or by certified mail, return receipt requested, upon the Tenant a
copy of any offer that the Landlord receives for the subject premises, which
offer shall contain the material terms of said offer. The Tenant shall have ten
(10) business days thereafter to advise the Landlord, in writing, by personal
delivery or by certified mail, return receipt requested, that the Tenant elects
to meet said offer and purchase the property upon the same terms and conditions.
In the event the Tenant elects to purchase the same a contract shall be promptly
drawn and executed. In the event the Tenant does not accept said terms, the
Landlord is free to sell the premises to the original offeror, subject, however,
to the terms and conditions contained in this lease. Any new or additional
offers shall be subject to the same Tenant's right of first refusal.
72. In amplification of paragraph 5 of the printed lease, in the
event the landlord and tenant do not agree as to the premises being usable, the
building department shall be requested to make an inspection thereof and their
determination as to safety and usability shall be binding upon the parties.
73. In the event the landlord intends to exercise its rights pursuant
to paragraph 13 of the printed lease, the landlord shall give the tenant twenty
four (24) hours advance notice by fax or forty eight (48) hours advance notice
by certified mail of landlords intention to so act.
74. In amplification of paragraph 27 of the printed lease, rent will
commence and be charged and due pro rata from the date occupancy is available
for the tenant and the portion of the building that available for occupancy.
The landlord represents that the tenant shall have at least twenty (20%) percent
occupancy of the subject premises on or before August 23, 1996 and full
occupancy within sixty (60) days from the date the final signature is placed
upon this lease. SS BS
<PAGE>
AGREEMENT
RIGHT OF FIRST REFUSAL
WHEREAS, CHIGI REALTY CORP., as landlord, has leased premises 13 Edison
Street East, Amityville, New York to HI-TECH PHARMACAL CO., INC. (hereinafter
referred to as H-T), as tenant, and
WHEREAS, the tenant is interested in the possibility of acquiring
additional space in the area pursuant to lease or purchase, and
WHEREAS, a corporation related to CHIGI REALTY CORP., to wit, TIME
CONSTRUCTION CORP. (hereinafter referred to as TCC), P.O. Box 752,
Amityville, New York owns premises known as 10 Marconi Blvd., Copaigue, New
York 11725,
NOW, and in consideration of the mutual promises and agreements herein
contained, it is agreed as follows:
1. TCC does hereby grant to H-T the right of first refusal to rent the
subject premises, 10 Marconi Blvd., Copaigue, New York, or any part thereof that
becomes vacant should the same become available between the date of execution
hereof and January 31, 2003. In the event the same becomes available TCC shall
give notice thereof to H-T by certified mail, return receipt requested. In the
event that H-T wishes to avail itself of the option to rent said premises, or
the vacant portion thereof, it shall notify TCC within five (5) business days of
its intent to so rent the premises, said notification to be by certified mail,
return receipt requested, in which event the terms of the lease to be executed
will be on all of the same terms and conditions set forth in the lease between
CHIGI REALTY CORP. and H-T, modified because of sizes and taxes etc. including
the same tax
<PAGE>
base, other items specified therein as additional rent and rental at the same
square foot rate. In the event that TCC does not have another bona fide rental
offer for the said premises or vacant part thereof, H-T shall have ten (10)
business days to respond instead of the five (5) days above set forth.
2. TCC does hereby grant to H-T the right of first refusal to purchase
the subject premises, 10 Marconi Blvd., Copaigue, New York between the date of
the execution hereon and January 31, 2003, upon the following terms and
conditions. In the event TCC obtains an offer for the subject premises the
material terms thereof shall be furnished to H-T by certified mail, return
receipt requested. H-T shall have five (5) business days to accept said offer,
in which event the parties shall promptly enter into a contract of sale
containing all of the material terms of the said offer. However, and
notwithstanding any other provision of the offer or contract, in addition to the
price to be paid for the property as set forth in the offer, H-T shall pay any
and all brokerage commissions that TCC may be obligated to pay to the broker(s)
who brought about the third party offer to purchase the premises.
3. None of the rights herein contained shall apply to the said premises
in the event that CHIGI REALTY CORP., TCC, any stockholder of either corporation
or any corporation related to any of the foregoing, use, lease or purchase the
subject premises.
Dated: July 18, 1996
TIME CONSTRUCTION CORP. HI-TECH PHARMACAL CO., INC.,
By: /s/ Steven Wm. Schwartz By: /s/ Bernard Seltzer
------------------------ --------------------------
Steven Wm. Schwartz, President
President
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