Preview
INDEX NO. 162629/2014
(FILED: NEW YORK COUNTY CLERK 1272272014 06:31 PM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/22/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
GREEN 333 CORP.
Index No.:
Plaintiff,
-against-
VERIFIED COMPLAINT
RNL LIFE SCIENCE, INC.
Defendant.
eee!
Plaintiff Green 333 Corp. (“Landlord”), by and through its attorneys, Ballon Stoll Bader &
Nadler, P.C., as for its Verified Complaint against Defendant RNL Life Science, Inc. (“Tenant”),
alleges, as follows:
THE PARTIES
1 Landlord is a New York corporation, is the owner of 422 West Broadway, New
York, New York 10012 and was the landlord of the retail store (ground floor and portion of the
basement) premises located at, and known as, 422 West Broadway, New York, New York 10012
(the “Premises”).
2 Tenant is a foreign corporation, conducting business in New York during the events
giving rise to this Complaint and was tenant of Landlord and was located at the Premises.
FACTS COMMON TO ALL CLAIMS
3 On or about May 21, 2010, Landlord and Tenant entered into a written Lease
Agreement consisting of a Lease Agreement and Rider to Lease (hereinafter referred to
collectively as the “Lease”) of the Premises. A copy of the Lease is attached hereto as Exhibit A.
4. The parties entered into a ten-year Lease of the Premises which provided for a
commencement date of June 1, 2010 and an end date of May 31, 2020 (the “Term”), See Exhibit
A, Introduction and § 1.
5 Tenant agreed in Paragraph 42 of the Lease to pay a “Fixed Annual Rent,” payable
in monthly installments as provided in Exhibit 42 of the Lease. See Exhibit A, ] 42(i) and Exhibit
42 to the Lease. The schedule from Exhibit 42 of the Lease is excerpted below:
Exhibit 42: Fixed Annual Rent
Year Start End Annual Rent Monthly
6/1/2010 5/31/2011 $312,000.00 $26,000.00
6/1/2011 5/31/2012 $321,360.00 $26,780.00
6/1/2012 5/31/2013 $331,000.80 $27,583.40
6/1/2013 5/31/2014 $340,930.82 $28,410.90
6/1/2014 5/31/2015 $351,158.75 $29,263.23
6/1/2015 5/31/2016 $361,693.51 $30,141.13
6/1/2016 5/31/2017 $372,544.32 $31,045.36
6/1/2017 5/31/2018 $383,720.65 $31,976.72
6/1/2018 5/31/2019 $395,232.27 $32,936.02
10 6/1/2019 5/31/2020 $407,089.23 $33,924.10
See Exhibit 42 of the Lease.
6 Tenant also agreed in Paragraph 42(ii) of the Lease to pay as “Additional Rent,”
“... all other sums of money as shall become due from, and payable by, Tenant to Landlord
hereunder ..,” to Landlord, See Exhibit A, § 42(ii). Additional Rent includes, but is not limited
to, Default interest, Late Charges (§ 66 of the Lease), water bill charges ({] 66 of the Lease), rent
checks returned for non-payment ( 63 of the Lease), and any other charge under the Lease that is
not Fixed Annual Rent,
7 In the event the Tenant failed to timely pay the monthly installment of the Fixed
Annual Rent, then the Landlord was permitted to impose certain Additional Rents, as provided for
therein:
63. LATE CHARGE. Should Tenant fail to pay when due any
installment of Fixed Annual Rent, Additional Rent, or any other sum
payable to Landlord under the terms of this lease, within ten (10)
days after the date it is due, a late charge of 4.0 cents for every dollar
so overdue, to cover the extra expense involved in processing and
handling such delinquency, shall be paid by Tenant to Landlord at
the time of payment of any such delinquent sum by Tenant. In
addition, if during the term of this lease two (2) checks paid by
Tenant to Landlord hereunder are returned for non-payment, a
processing fee of $200 will be charged to Tenant for any subsequent
check tendered for payment of Fixed Annual Rent or Additional
Rent hereunder which is returned for non-payment. If any
installment of Fixed Annual Rent, Additional Rent or any other sum
payable to the Landlord under the terms of this lease is not paid
within thirty (30) days after same is due then, in addition to said
4.0% late charge, Tenant shall also pay Default Interest computed
on any of said items for the period commencing thirty (30) days after
same are due until same are paid by Tenant to Landlord.
64, DEFAULT INTEREST. Whenever this lease refers to
"Default Interest" same shall be computed at a rate equal to the
"Prime Rate" (as hereinafter defined) plus two (2%) percent. If,
however, payment of interest at any such rate by Tenant (or by the
tenant then in possession who has succeeded to the Tenant's interest
in accordance with the terms of this lease) would be unlawful or
violative of the usury statutes or otherwise, then Default Interest
shall, as against such party, be computed at the maximum lawful
rate payable by such party. "Prime Rate" shall mean the prime rate
established from time to time by JPMorgan Chase Bank, N.A.
provided that if JPMorgan Chase Bank shall no longer establish a
prime rate then Prime Rate shall mean the prime rate established by
a New York bank substantially similar in financial standing to
JPMorgan Chase Bank, N.A. and having an office in New York,
New York.
See Exhibit A, f{] 63-64.
8 Tenant defaulted in the payment of June 2013’s installment of the Fixed Annual
Rent and Additional Rent. Tenant has not made any payments to Landlord since such default,
9. Pursuant to the Lease, Landlord sent a written notice dated July 19, 2013 (the
“Notice to Cure”) advising Tenant of its failure to pay certain Fixed Annual Rent and Additional
Rent and providing Tenant 20 days to cure such default as required by Paragraphs 17 and 83 of
the Lease. A copy of the Notice to Cure is attached hereto as Exhibit B.
10. Tenant failed to timely cure the defaults set forth in the July 19, 2013 Notice to
Cure.
1. As a result, in compliance with Paragraphs 17 and 83 of the Lease, the Landlord
terminated the Lease, effective August 23, 2013 by written Notice of Termination dated August
12, 2013 (the “Notice to Terminate”). A copy of the Notice to Terminate is attached hereto as
Exhibit C.
12, Tenant failed to vacate the Premises after the termination of the Lease, but remained
in possession of the premises.
13. Accordingly, a holdover proceeding was commenced by Plaintiff in the Civil Court
of the City of New York, County of New York and assigned Index No. 78751/13.
14, The Judgment of Eviction was entered against Tenant in the Civil Court of the City
of New York, County of New York on November 22, 2013. A copy of the judgment of eviction
is attached hereto as Exhibit D.
15. The Warrant of Eviction was issued on December 6, 2013 and the eviction of
Tenant took place on January 16, 2014. A copy of the Warrant of Eviction is attached hereto as
Exhibit E.
FIRST CAUSE OF ACTION
(Unpaid Rent)
16. Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth
herein.
17. Landlord performed any and all conditions on its part as required by the Lease.
18. Tenant defaulted by failing to pay the monthly installments of Fixed Annual Rent,
Additional Rent from June 2013 through and including August 23, 2013 (See, Exhibit C, the date
of termination on Page 1) at $28,410.90 per month (2 months and 23 days in total) and totaling
$77,900.85.
Month of Rent Rent Due Date Amount Default Interest Amount of
Begins to Accrue Default
(30 days later) Interest
Per Day
June June 1, 2013 $28,410.90 July 1, 2013 $4.09
July July 1, 2013 $28,410.90 July 31, 2013 $4.09
August August 1, 2013 $21,079.05 August 31, 2013 $4.09
19. After the termination of the Lease, see Exhibit C, Tenant failed to vacate the
premises. As such, Tenant violated Paragraph 60 of the Lease, which states:
HOLDING OVER, If Tenant shall default in surrendering the Demised Premises upon the
expiration or earlier termination of the term of this lease, Tenant's occupancy shall be
subject to all the terms, covenants and conditions of this lease applicable thereto, except
the monthly installments of Fixed Annual Rent shall be one and one half times the amount
payable in the last year of the lease term, and no extension or renewal of this lease shall be
deemed to have occurred by such holding over. In the event Landlord shall commence
proceedings to dispossess Tenant by reason of Tenant's holding over or other default,
Tenant shall pay, in addition to costs and disbursements, Landlord's reasonable legal fees
for each proceeding as Additional Rent hereunder, Tenant shall be liable to Landlord for
any damages arising from the failure of Tenant to timely surrender and vacate the Demised
Premises.
See Exhibit A, J 60.
20. Tenant violated Paragraph 60 of the Lease and, therefore, Landlord is entitled to
monthly installments of Fixed Annual Rent at “one and one half times the amount payable in the
last year of the lease term,” meaning $33,924.10 (monthly rent for Year 10 of the lease, See Exhibit
42 to the Lease) multiplied by 1.5, which equals $50,886.15 per month, from August 24, 2013 to
January 16, 2014, for a total of $242,940.33.
Month of Due Date Amount Default Interest Amount of
Occupancy Begins to Accrue (30 | Interest Per
days later) Day
August (24-31) August 1, 2013 $13,131.91 August 31, 2013 $1.89
September September 1, 2013 $50,886.15 October 1, 2013 $7.32
October October 1, 2013 $50,886.15 October 31, 2013 $7.32
November November 1, 2013 $50,886.15 December 1, 2013 $7.32
December December 1, 2013 $50,886.15 December 31, 2013 $7.32
January (1-16) January 1, 2013 $26,263.82 January 31, 2014 $3.78
21. During that same period, Tenant was also required to pay Landlord Additional Rent
payments of $210,306.04, with such Additional Rent being comprised of and calculated;
a. Pursuant to Paragraph 63 of the Lease, Landlord is entitled to Additional Rent
in the amount of a 4% charge on any rent that is past 10 days due, As outlined
on page 7 of the Notice to Cure, Tenant was late on 10 occasions from July
2012 to July 2013, resulting in a total Additional Rent of $11,001.22.
Date Rent Paid (Late) Amount Default Interest Begins to | Amount of
Charged (4% Accrue (30 days later) Interest Per
of Rent) Day
July 13, 2012 $1,071.20 August 12, 2012 $.15
September 14, 2012 $1,103.34 October 14, 2012 $.16
October 16, 2012 $1,103.34 November 15, 2012 $.16
December 13, 2012 $1,103.34 January 12, 2013 $.16
February 11, 2013 $1,103.34 March 13, 2013 $.16
March 11, 2013 $1,103.34 April 10, 2013 $.16
April 24, 2013 $1,103.34 May 24, 2013 $.16
May 24, 2013 $1,103.34 June 23, 2013 $.16
June 11, 2013 $1,103.34 July 11, 2013 $.16
July 11, 2013 $1,103.34 August 10, 2013 $.16
b. Pursuant to Paragraph 66 of the Lease, Tenant shall pay a pro rata share of the
NYC Water Bill for the building. As outlined on page 5 the Notice to Cure,
Tenant failed to pay its pro rata share of the Water Bill from March 2013
through June 2013, resulting in $263.40 (amount of total bill) *20% (pro rata
share) = $52.70 as Additional Rent;
Date Water Bill Amount Default Interest Begins to | Amount of
Additional Rent Due Charged Accrue (30 days later) Interest Per
Day
June 6, 2013 $52.70 July 6, 2013 $.01
c. As outlined on page 5 the Notice to Cure, Tenant failed to reimburse Landlord
for a $100 DEP ticket for improper trash disposal, thus resulting in Additional
Rent of $100 owed to Landlord.
Date DEP Ticket Due Amount Default Interest Begins to | Amount of
Charged Acerue (30 days later) Interest Per
Day
June 6, 2013 $100 July 6, 2013 $.01
d. Pursuant to Paragraph 63 of the Lease, Landlord may charge Tenant Additional
Rent ifa check is returned for non-payment. As outlined on page 5 of the Notice
to Cure, in April 2013, Tenant’s check was returned for non-payment, and thus,
$200 of additional rent became due and owing to Landlord.
Date of Charge Amount Default Interest Begins to Amount of
Charged Accrue (30 days later) Interest Per
Day
June 20, 2013 $200 July 20, 2013 $ 0.03
e. Pursuant to Paragraph 63 of the Lease, Landlord is entitled to additional rent in
the form of a fee for late rent charges at an amount of $0.04 for every dollar
overdue. Tenant is late on $320,841.02 of back Fixed Annual Rent and
Occupancy (see above), therefore, must also pay $320,841.02 * $0.04 =
$12,833.64 as Additional Rent.
Date Late Rent Charge Amount Default Interest Begins to | Amount of
Accrue (30 days later) Interest Per
Day
January 16, 2014 $12,833.64 February 15, 2014 $1.85,
f. Under Paragraph 60 of the Lease, Landlord is entitled to additional rent for
holdover expenses.
¢ Tenant failed to pay Landlord any of its Con Edison Electric Bill, as of
January 6, 2014, amounting to $3,975.82. Attached hereto as Exhibit F
is a copy of the Con Edison Electric Bill.
Tenant also failed to pay for repairs to the Premises as a result of its
holdover and required to be made, amounting to $118,660.00, including
repairs to the walls, bathrooms, doors, staircase, ceiling, wood trim,
plumbing, heating unit, face of the store front, and locks to the gate and
front door. Attached hereto as Exhibit G is a copy of the M&R
Contracting Invoice, detailing the cost of each repair as a result of
Tenant’s holdover.
Tenant also failed to pay for the cost of the demolition and removal of
certain parts of the store that could not be repaired or fixed, including
the removal of all fixtures and additional items and structures left by
Tenant, amounting to $57,500.00. Attached hereto as Exhibit H is a
copy of the Errico Construction Inc. Invoice, detailing the costs of the
demolition as a result of Tenant’s holdover.
Date Holdover Amount Default Interest Begins to Amount of
Expenses Accrue (30 days later) Interest Per
Day
February 4, 2014 $3,975.82 March 6, 2014 $ 0,57
April 23, 2014 $118,660.00 May 23, 2014 $17.07
February 26, 2014 $57,500.00 March 28, 2014 $ 8.27
g. Under Paragraph 45 of the Lease, Tenant must pay 50% of real estate taxes
assessed on the Premises, Tenant failed to pay Landlord its proportional share
of the real estate tax escalation assessed on the premises from July 2010-July
2013 in the amount of $5,982.66. Attached hereto as ExhibitI is an Invoice
from Landlord, dated June 27, 2013, demanding such payment of the share of
real estate taxes, Therefore, Tenant owes Landlord $5,982.66 as additional rent.
Date Tax Invoice Amount Default Interest Amount of Interest
Begins to Accrue (30 Per Day
days later)
June 27, 2013 $5,982.66 July 27, 2013 $0.86
22. As such, $531,147.22 was due and owing Landlord by Tenant as of the Eviction
Date, representing the sum of (i) Fixed Annual Rent from June 2013-August 23, 2013, (ii)
Occupancy from August 24, 2013-January 16, 2014 and (iii) Additional Rent.
Type of Payment Owed to Amount of Payment
Landlord Owed to Landlord
Fixed Annual Rent from June $77,900.85
2013-August 2013
Use and Occupancy from $242,940.33
August 24, 2013-January 16,
2013
Additional Rent $210,306.04
TOTAL $531,147.22
23. Pursuant to Paragraph 31 of the First Lease Modification Agreement, attached
hereto as Exhibit J, Landlord is entitled to deduct the Security Deposit, in the amount of $156,000,
from the amounts due and owing Landlord for the period of June 2013 through and including
January 2014.
24, Landlord has therefore been damaged in the amount of $375,147.22 for failing to
pay the monthly installments of (i) Fixed Annual Rent from June 2013-August 23, 2013, (ii)
Occupancy from August 24, 2013-January 16, 2014 and (iii) Additional Rent, together with (i)
Default Interest calculated pursuant to Paragraphs 63 and 64 of the Lease; (ii) the costs and
disbursements of this action; and (iii) such other and further relief as the Court deems just, proper,
and equitable.
SECOND CAUSE OF ACTION
(Liquidated Damages)
25. Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth
herein.
26. Paragraph 75 of the Lease provides:
DEFAULT REMEDIES, If an event of default occurs and remains
uncured beyond any applicable cure period, then Landlord may
terminate this Lease by giving written notice of its intention to
terminate. If Landlord terminates this lease because of an event of
default, then Landlord may recover on an accelerated basis from the
Tenant: (i) any unpaid Fixed Annual Rent and/or Additional Rent
(collectively, “rent”) which had been earned at the time of such
termination, plus (ii) the Fixed Annual Rent and/or Additional
Rent for the balance of the term.
Exhibit A, J 75 (emphasis added).
27. As such, in addition to the damages outlined in the First Cause of Action, Tenant is
liable to Landlord for the Fixed Annual Rent and/or Additional Rent for the balance of the Term
which amounts to $2,385,082.33 as is calculated below:
10
Year Start End Monthly Annual Rent
Installment
4 (4 Months Only) 2/1/14 5/31/2014 $28,410.90 $113,643.60
5 6/1/2014 5/31/2015 $29,263.23 $351,158.75
6 6/1/2015 5/31/2016 $30,141.13 $361,693.51
7 6/1/2016 5/31/2017 $31,045.36 $372,544.32
8 6/1/2017 5/31/2018 $31,976.72 $383,720.65
9 6/1/2018 5/31/2019 $32,936.02 $395,232.27
10 6/1/2019 5/31/2020 $33,924.10 $407,089.23
TOTAL $2,385,082.33
See, Exhibit 42 to the Lease; Exhibit A, Lines 5-10, representing the amount due each year from
June 2014 — May 2020 and Line 4, representing only the amount due from February 1, 2014 to
May 31, 2014.
28. Accordingly, Landlord has therefore been damaged in the amount of
$2,385,082.33, together with (i) Default Interest calculated pursuant to Paragraphs 63 and 64 of
the Lease; (ii) the costs and disbursements of this action; and (iii) such other and further relief as
the Court deems just, proper, and equitable.
THIRD CAUSE OF ACTION
(Attorneys’ Fees)
29, Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth
herein,
30, Paragraph 57 of the Lease provides:
In the event Landlord incurs any reasonable attorneys’ fees or
expenses in connection with any default by Tenant of any term,
covenant or condition of this lease, beyond any applicable grace or
cure periods including without limitation, any failure by Tenant to
pay any monthly installment of Fixed Annual Rent or any
Additional Rent, then such reasonable attorneys’ fees and expenses
shall be payable by Tenant to Landlord within twenty (20) days of
demand and shall be considered Additional Rent hereunder,
provided Landlord is the prevailing party in such action resulting
from any of the foregoing defaults by Tenant.
Exhibit A, 157.
IL
31, Landlord has incurred and will continue to incur legal fees and other expenses
resulting from Tenant’s default under the Lease, the sum of which will be determined at trial or
earlier conclusion of this action.
32. As such, Tenant is liable for Landlord’s expenses and reasonable attorneys’ fees
incurred as a result of Tenant’s default.
33. Accordingly, Landlord is entitled to judgment against Tenant for its expenses and
attomeys’ fees incurred in prosecuting this action and the landlord-tenant action, the sum of which
will be determined at trial or earlier conclusion of this action.
WHEREFORE, plaintiff demands judgment against defendant as follows:
(a) On the First Cause of Action, in the sum of at least $375,147.22 with Default
Interest of 5.25% thereon calculated in accordance with Paragraphs 63 and 64 of the Lease;
(b) On the Second Cause of from the Action, in the sum of at least $2,385,082.33 with
Default Interest of 5.25% thereon calculated in accordance with Paragraphs 63 and 64 of
the Lease;
(c) On its Third Cause of Action, its expenses and legal fees, the precise sum of which
is to be determined at trial or earlier conclusion of this action; and
() The cost and disbursement of this action, and such other and further relief as the
Court deems just, proper, and equitable.
12
Dated: New York, New York
December 15, 2014
BALLON STOLL BADER & NADLER, P.C
By
Michael J Sheppeard
Attorneys\for Plaintiff
729 Seventh Avenue, 17" Floor
New York, New York 10019
212.575.7900
13
VERIFICATION
SYATE OF NEW YORK }
} ssi
COUNTY oF Aasyau }
1, Paul Tusa, am the Vice-President of the Plaintiff in this action. 1 am familiar with the
facts and circumstances underlying this law suit and I am duly authorized to verily this Complaint
on Plaintiff's behalf, I have read the foregoing Complaint and know the contents thereof. The
contents of the Complaint are true to my own knowledge, except as to those matters therein stated
(o be alleged upon information and belief, and as to those matters I believe them to be true.
——$_
Paul
Subscribed and sworn to before me
on *2_ DE 2CEMBER 2014
>
PEECHEE C, CASTILLO
Notary Public, State of New York, COC o-~
7
Qualified INtvaasay Perri,re rey
Commission Expires March 4, a
My commission expires on (arch ¥, 20/7,
14
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF NEW YORK Index No.
GREEN 333 CORP.,
Plaintiff,
-against-
RNL LIFE SCIENCE, INC
Defendant.
SUMMONS AND VERIFIED COMPLAINT
BALLON STOLL BADER & NADLER, P.C.
Attorneys for Plainti
729 Seventh Avenue, 17" i Floor
yj
New York, New York 10019
Tel: (212) 575-7900
Preview
INDEX NO. 162629/2014 (FILED: NEW YORK COUNTY CLERK 1272272014 06:31 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/22/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GREEN 333 CORP. Index No.: Plaintiff, -against- VERIFIED COMPLAINT RNL LIFE SCIENCE, INC. Defendant. eee! Plaintiff Green 333 Corp. (“Landlord”), by and through its attorneys, Ballon Stoll Bader & Nadler, P.C., as for its Verified Complaint against Defendant RNL Life Science, Inc. (“Tenant”), alleges, as follows: THE PARTIES 1 Landlord is a New York corporation, is the owner of 422 West Broadway, New York, New York 10012 and was the landlord of the retail store (ground floor and portion of the basement) premises located at, and known as, 422 West Broadway, New York, New York 10012 (the “Premises”). 2 Tenant is a foreign corporation, conducting business in New York during the events giving rise to this Complaint and was tenant of Landlord and was located at the Premises. FACTS COMMON TO ALL CLAIMS 3 On or about May 21, 2010, Landlord and Tenant entered into a written Lease Agreement consisting of a Lease Agreement and Rider to Lease (hereinafter referred to collectively as the “Lease”) of the Premises. A copy of the Lease is attached hereto as Exhibit A. 4. The parties entered into a ten-year Lease of the Premises which provided for a commencement date of June 1, 2010 and an end date of May 31, 2020 (the “Term”), See Exhibit A, Introduction and § 1. 5 Tenant agreed in Paragraph 42 of the Lease to pay a “Fixed Annual Rent,” payable in monthly installments as provided in Exhibit 42 of the Lease. See Exhibit A, ] 42(i) and Exhibit 42 to the Lease. The schedule from Exhibit 42 of the Lease is excerpted below: Exhibit 42: Fixed Annual Rent Year Start End Annual Rent Monthly 6/1/2010 5/31/2011 $312,000.00 $26,000.00 6/1/2011 5/31/2012 $321,360.00 $26,780.00 6/1/2012 5/31/2013 $331,000.80 $27,583.40 6/1/2013 5/31/2014 $340,930.82 $28,410.90 6/1/2014 5/31/2015 $351,158.75 $29,263.23 6/1/2015 5/31/2016 $361,693.51 $30,141.13 6/1/2016 5/31/2017 $372,544.32 $31,045.36 6/1/2017 5/31/2018 $383,720.65 $31,976.72 6/1/2018 5/31/2019 $395,232.27 $32,936.02 10 6/1/2019 5/31/2020 $407,089.23 $33,924.10 See Exhibit 42 of the Lease. 6 Tenant also agreed in Paragraph 42(ii) of the Lease to pay as “Additional Rent,” “... all other sums of money as shall become due from, and payable by, Tenant to Landlord hereunder ..,” to Landlord, See Exhibit A, § 42(ii). Additional Rent includes, but is not limited to, Default interest, Late Charges (§ 66 of the Lease), water bill charges ({] 66 of the Lease), rent checks returned for non-payment ( 63 of the Lease), and any other charge under the Lease that is not Fixed Annual Rent, 7 In the event the Tenant failed to timely pay the monthly installment of the Fixed Annual Rent, then the Landlord was permitted to impose certain Additional Rents, as provided for therein: 63. LATE CHARGE. Should Tenant fail to pay when due any installment of Fixed Annual Rent, Additional Rent, or any other sum payable to Landlord under the terms of this lease, within ten (10) days after the date it is due, a late charge of 4.0 cents for every dollar so overdue, to cover the extra expense involved in processing and handling such delinquency, shall be paid by Tenant to Landlord at the time of payment of any such delinquent sum by Tenant. In addition, if during the term of this lease two (2) checks paid by Tenant to Landlord hereunder are returned for non-payment, a processing fee of $200 will be charged to Tenant for any subsequent check tendered for payment of Fixed Annual Rent or Additional Rent hereunder which is returned for non-payment. If any installment of Fixed Annual Rent, Additional Rent or any other sum payable to the Landlord under the terms of this lease is not paid within thirty (30) days after same is due then, in addition to said 4.0% late charge, Tenant shall also pay Default Interest computed on any of said items for the period commencing thirty (30) days after same are due until same are paid by Tenant to Landlord. 64, DEFAULT INTEREST. Whenever this lease refers to "Default Interest" same shall be computed at a rate equal to the "Prime Rate" (as hereinafter defined) plus two (2%) percent. If, however, payment of interest at any such rate by Tenant (or by the tenant then in possession who has succeeded to the Tenant's interest in accordance with the terms of this lease) would be unlawful or violative of the usury statutes or otherwise, then Default Interest shall, as against such party, be computed at the maximum lawful rate payable by such party. "Prime Rate" shall mean the prime rate established from time to time by JPMorgan Chase Bank, N.A. provided that if JPMorgan Chase Bank shall no longer establish a prime rate then Prime Rate shall mean the prime rate established by a New York bank substantially similar in financial standing to JPMorgan Chase Bank, N.A. and having an office in New York, New York. See Exhibit A, f{] 63-64. 8 Tenant defaulted in the payment of June 2013’s installment of the Fixed Annual Rent and Additional Rent. Tenant has not made any payments to Landlord since such default, 9. Pursuant to the Lease, Landlord sent a written notice dated July 19, 2013 (the “Notice to Cure”) advising Tenant of its failure to pay certain Fixed Annual Rent and Additional Rent and providing Tenant 20 days to cure such default as required by Paragraphs 17 and 83 of the Lease. A copy of the Notice to Cure is attached hereto as Exhibit B. 10. Tenant failed to timely cure the defaults set forth in the July 19, 2013 Notice to Cure. 1. As a result, in compliance with Paragraphs 17 and 83 of the Lease, the Landlord terminated the Lease, effective August 23, 2013 by written Notice of Termination dated August 12, 2013 (the “Notice to Terminate”). A copy of the Notice to Terminate is attached hereto as Exhibit C. 12, Tenant failed to vacate the Premises after the termination of the Lease, but remained in possession of the premises. 13. Accordingly, a holdover proceeding was commenced by Plaintiff in the Civil Court of the City of New York, County of New York and assigned Index No. 78751/13. 14, The Judgment of Eviction was entered against Tenant in the Civil Court of the City of New York, County of New York on November 22, 2013. A copy of the judgment of eviction is attached hereto as Exhibit D. 15. The Warrant of Eviction was issued on December 6, 2013 and the eviction of Tenant took place on January 16, 2014. A copy of the Warrant of Eviction is attached hereto as Exhibit E. FIRST CAUSE OF ACTION (Unpaid Rent) 16. Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth herein. 17. Landlord performed any and all conditions on its part as required by the Lease. 18. Tenant defaulted by failing to pay the monthly installments of Fixed Annual Rent, Additional Rent from June 2013 through and including August 23, 2013 (See, Exhibit C, the date of termination on Page 1) at $28,410.90 per month (2 months and 23 days in total) and totaling $77,900.85. Month of Rent Rent Due Date Amount Default Interest Amount of Begins to Accrue Default (30 days later) Interest Per Day June June 1, 2013 $28,410.90 July 1, 2013 $4.09 July July 1, 2013 $28,410.90 July 31, 2013 $4.09 August August 1, 2013 $21,079.05 August 31, 2013 $4.09 19. After the termination of the Lease, see Exhibit C, Tenant failed to vacate the premises. As such, Tenant violated Paragraph 60 of the Lease, which states: HOLDING OVER, If Tenant shall default in surrendering the Demised Premises upon the expiration or earlier termination of the term of this lease, Tenant's occupancy shall be subject to all the terms, covenants and conditions of this lease applicable thereto, except the monthly installments of Fixed Annual Rent shall be one and one half times the amount payable in the last year of the lease term, and no extension or renewal of this lease shall be deemed to have occurred by such holding over. In the event Landlord shall commence proceedings to dispossess Tenant by reason of Tenant's holding over or other default, Tenant shall pay, in addition to costs and disbursements, Landlord's reasonable legal fees for each proceeding as Additional Rent hereunder, Tenant shall be liable to Landlord for any damages arising from the failure of Tenant to timely surrender and vacate the Demised Premises. See Exhibit A, J 60. 20. Tenant violated Paragraph 60 of the Lease and, therefore, Landlord is entitled to monthly installments of Fixed Annual Rent at “one and one half times the amount payable in the last year of the lease term,” meaning $33,924.10 (monthly rent for Year 10 of the lease, See Exhibit 42 to the Lease) multiplied by 1.5, which equals $50,886.15 per month, from August 24, 2013 to January 16, 2014, for a total of $242,940.33. Month of Due Date Amount Default Interest Amount of Occupancy Begins to Accrue (30 | Interest Per days later) Day August (24-31) August 1, 2013 $13,131.91 August 31, 2013 $1.89 September September 1, 2013 $50,886.15 October 1, 2013 $7.32 October October 1, 2013 $50,886.15 October 31, 2013 $7.32 November November 1, 2013 $50,886.15 December 1, 2013 $7.32 December December 1, 2013 $50,886.15 December 31, 2013 $7.32 January (1-16) January 1, 2013 $26,263.82 January 31, 2014 $3.78 21. During that same period, Tenant was also required to pay Landlord Additional Rent payments of $210,306.04, with such Additional Rent being comprised of and calculated; a. Pursuant to Paragraph 63 of the Lease, Landlord is entitled to Additional Rent in the amount of a 4% charge on any rent that is past 10 days due, As outlined on page 7 of the Notice to Cure, Tenant was late on 10 occasions from July 2012 to July 2013, resulting in a total Additional Rent of $11,001.22. Date Rent Paid (Late) Amount Default Interest Begins to | Amount of Charged (4% Accrue (30 days later) Interest Per of Rent) Day July 13, 2012 $1,071.20 August 12, 2012 $.15 September 14, 2012 $1,103.34 October 14, 2012 $.16 October 16, 2012 $1,103.34 November 15, 2012 $.16 December 13, 2012 $1,103.34 January 12, 2013 $.16 February 11, 2013 $1,103.34 March 13, 2013 $.16 March 11, 2013 $1,103.34 April 10, 2013 $.16 April 24, 2013 $1,103.34 May 24, 2013 $.16 May 24, 2013 $1,103.34 June 23, 2013 $.16 June 11, 2013 $1,103.34 July 11, 2013 $.16 July 11, 2013 $1,103.34 August 10, 2013 $.16 b. Pursuant to Paragraph 66 of the Lease, Tenant shall pay a pro rata share of the NYC Water Bill for the building. As outlined on page 5 the Notice to Cure, Tenant failed to pay its pro rata share of the Water Bill from March 2013 through June 2013, resulting in $263.40 (amount of total bill) *20% (pro rata share) = $52.70 as Additional Rent; Date Water Bill Amount Default Interest Begins to | Amount of Additional Rent Due Charged Accrue (30 days later) Interest Per Day June 6, 2013 $52.70 July 6, 2013 $.01 c. As outlined on page 5 the Notice to Cure, Tenant failed to reimburse Landlord for a $100 DEP ticket for improper trash disposal, thus resulting in Additional Rent of $100 owed to Landlord. Date DEP Ticket Due Amount Default Interest Begins to | Amount of Charged Acerue (30 days later) Interest Per Day June 6, 2013 $100 July 6, 2013 $.01 d. Pursuant to Paragraph 63 of the Lease, Landlord may charge Tenant Additional Rent ifa check is returned for non-payment. As outlined on page 5 of the Notice to Cure, in April 2013, Tenant’s check was returned for non-payment, and thus, $200 of additional rent became due and owing to Landlord. Date of Charge Amount Default Interest Begins to Amount of Charged Accrue (30 days later) Interest Per Day June 20, 2013 $200 July 20, 2013 $ 0.03 e. Pursuant to Paragraph 63 of the Lease, Landlord is entitled to additional rent in the form of a fee for late rent charges at an amount of $0.04 for every dollar overdue. Tenant is late on $320,841.02 of back Fixed Annual Rent and Occupancy (see above), therefore, must also pay $320,841.02 * $0.04 = $12,833.64 as Additional Rent. Date Late Rent Charge Amount Default Interest Begins to | Amount of Accrue (30 days later) Interest Per Day January 16, 2014 $12,833.64 February 15, 2014 $1.85, f. Under Paragraph 60 of the Lease, Landlord is entitled to additional rent for holdover expenses. ¢ Tenant failed to pay Landlord any of its Con Edison Electric Bill, as of January 6, 2014, amounting to $3,975.82. Attached hereto as Exhibit F is a copy of the Con Edison Electric Bill. Tenant also failed to pay for repairs to the Premises as a result of its holdover and required to be made, amounting to $118,660.00, including repairs to the walls, bathrooms, doors, staircase, ceiling, wood trim, plumbing, heating unit, face of the store front, and locks to the gate and front door. Attached hereto as Exhibit G is a copy of the M&R Contracting Invoice, detailing the cost of each repair as a result of Tenant’s holdover. Tenant also failed to pay for the cost of the demolition and removal of certain parts of the store that could not be repaired or fixed, including the removal of all fixtures and additional items and structures left by Tenant, amounting to $57,500.00. Attached hereto as Exhibit H is a copy of the Errico Construction Inc. Invoice, detailing the costs of the demolition as a result of Tenant’s holdover. Date Holdover Amount Default Interest Begins to Amount of Expenses Accrue (30 days later) Interest Per Day February 4, 2014 $3,975.82 March 6, 2014 $ 0,57 April 23, 2014 $118,660.00 May 23, 2014 $17.07 February 26, 2014 $57,500.00 March 28, 2014 $ 8.27 g. Under Paragraph 45 of the Lease, Tenant must pay 50% of real estate taxes assessed on the Premises, Tenant failed to pay Landlord its proportional share of the real estate tax escalation assessed on the premises from July 2010-July 2013 in the amount of $5,982.66. Attached hereto as ExhibitI is an Invoice from Landlord, dated June 27, 2013, demanding such payment of the share of real estate taxes, Therefore, Tenant owes Landlord $5,982.66 as additional rent. Date Tax Invoice Amount Default Interest Amount of Interest Begins to Accrue (30 Per Day days later) June 27, 2013 $5,982.66 July 27, 2013 $0.86 22. As such, $531,147.22 was due and owing Landlord by Tenant as of the Eviction Date, representing the sum of (i) Fixed Annual Rent from June 2013-August 23, 2013, (ii) Occupancy from August 24, 2013-January 16, 2014 and (iii) Additional Rent. Type of Payment Owed to Amount of Payment Landlord Owed to Landlord Fixed Annual Rent from June $77,900.85 2013-August 2013 Use and Occupancy from $242,940.33 August 24, 2013-January 16, 2013 Additional Rent $210,306.04 TOTAL $531,147.22 23. Pursuant to Paragraph 31 of the First Lease Modification Agreement, attached hereto as Exhibit J, Landlord is entitled to deduct the Security Deposit, in the amount of $156,000, from the amounts due and owing Landlord for the period of June 2013 through and including January 2014. 24, Landlord has therefore been damaged in the amount of $375,147.22 for failing to pay the monthly installments of (i) Fixed Annual Rent from June 2013-August 23, 2013, (ii) Occupancy from August 24, 2013-January 16, 2014 and (iii) Additional Rent, together with (i) Default Interest calculated pursuant to Paragraphs 63 and 64 of the Lease; (ii) the costs and disbursements of this action; and (iii) such other and further relief as the Court deems just, proper, and equitable. SECOND CAUSE OF ACTION (Liquidated Damages) 25. Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth herein. 26. Paragraph 75 of the Lease provides: DEFAULT REMEDIES, If an event of default occurs and remains uncured beyond any applicable cure period, then Landlord may terminate this Lease by giving written notice of its intention to terminate. If Landlord terminates this lease because of an event of default, then Landlord may recover on an accelerated basis from the Tenant: (i) any unpaid Fixed Annual Rent and/or Additional Rent (collectively, “rent”) which had been earned at the time of such termination, plus (ii) the Fixed Annual Rent and/or Additional Rent for the balance of the term. Exhibit A, J 75 (emphasis added). 27. As such, in addition to the damages outlined in the First Cause of Action, Tenant is liable to Landlord for the Fixed Annual Rent and/or Additional Rent for the balance of the Term which amounts to $2,385,082.33 as is calculated below: 10 Year Start End Monthly Annual Rent Installment 4 (4 Months Only) 2/1/14 5/31/2014 $28,410.90 $113,643.60 5 6/1/2014 5/31/2015 $29,263.23 $351,158.75 6 6/1/2015 5/31/2016 $30,141.13 $361,693.51 7 6/1/2016 5/31/2017 $31,045.36 $372,544.32 8 6/1/2017 5/31/2018 $31,976.72 $383,720.65 9 6/1/2018 5/31/2019 $32,936.02 $395,232.27 10 6/1/2019 5/31/2020 $33,924.10 $407,089.23 TOTAL $2,385,082.33 See, Exhibit 42 to the Lease; Exhibit A, Lines 5-10, representing the amount due each year from June 2014 — May 2020 and Line 4, representing only the amount due from February 1, 2014 to May 31, 2014. 28. Accordingly, Landlord has therefore been damaged in the amount of $2,385,082.33, together with (i) Default Interest calculated pursuant to Paragraphs 63 and 64 of the Lease; (ii) the costs and disbursements of this action; and (iii) such other and further relief as the Court deems just, proper, and equitable. THIRD CAUSE OF ACTION (Attorneys’ Fees) 29, Landlord repeats and realleges each of the foregoing paragraphs as if fully set forth herein, 30, Paragraph 57 of the Lease provides: In the event Landlord incurs any reasonable attorneys’ fees or expenses in connection with any default by Tenant of any term, covenant or condition of this lease, beyond any applicable grace or cure periods including without limitation, any failure by Tenant to pay any monthly installment of Fixed Annual Rent or any Additional Rent, then such reasonable attorneys’ fees and expenses shall be payable by Tenant to Landlord within twenty (20) days of demand and shall be considered Additional Rent hereunder, provided Landlord is the prevailing party in such action resulting from any of the foregoing defaults by Tenant. Exhibit A, 157. IL 31, Landlord has incurred and will continue to incur legal fees and other expenses resulting from Tenant’s default under the Lease, the sum of which will be determined at trial or earlier conclusion of this action. 32. As such, Tenant is liable for Landlord’s expenses and reasonable attorneys’ fees incurred as a result of Tenant’s default. 33. Accordingly, Landlord is entitled to judgment against Tenant for its expenses and attomeys’ fees incurred in prosecuting this action and the landlord-tenant action, the sum of which will be determined at trial or earlier conclusion of this action. WHEREFORE, plaintiff demands judgment against defendant as follows: (a) On the First Cause of Action, in the sum of at least $375,147.22 with Default Interest of 5.25% thereon calculated in accordance with Paragraphs 63 and 64 of the Lease; (b) On the Second Cause of from the Action, in the sum of at least $2,385,082.33 with Default Interest of 5.25% thereon calculated in accordance with Paragraphs 63 and 64 of the Lease; (c) On its Third Cause of Action, its expenses and legal fees, the precise sum of which is to be determined at trial or earlier conclusion of this action; and () The cost and disbursement of this action, and such other and further relief as the Court deems just, proper, and equitable. 12 Dated: New York, New York December 15, 2014 BALLON STOLL BADER & NADLER, P.C By Michael J Sheppeard Attorneys\for Plaintiff 729 Seventh Avenue, 17" Floor New York, New York 10019 212.575.7900 13 VERIFICATION SYATE OF NEW YORK } } ssi COUNTY oF Aasyau } 1, Paul Tusa, am the Vice-President of the Plaintiff in this action. 1 am familiar with the facts and circumstances underlying this law suit and I am duly authorized to verily this Complaint on Plaintiff's behalf, I have read the foregoing Complaint and know the contents thereof. The contents of the Complaint are true to my own knowledge, except as to those matters therein stated (o be alleged upon information and belief, and as to those matters I believe them to be true. ——$_ Paul Subscribed and sworn to before me on *2_ DE 2CEMBER 2014 > PEECHEE C, CASTILLO Notary Public, State of New York, COC o-~ 7 Qualified INtvaasay Perri,re rey Commission Expires March 4, a My commission expires on (arch ¥, 20/7, 14 SUPREME COURT OF STATE OF NEW YORK COUNTY OF NEW YORK Index No. GREEN 333 CORP., Plaintiff, -against- RNL LIFE SCIENCE, INC Defendant. SUMMONS AND VERIFIED COMPLAINT BALLON STOLL BADER & NADLER, P.C. Attorneys for Plainti 729 Seventh Avenue, 17" i Floor yj New York, New York 10019 Tel: (212) 575-7900