EXECUTION COPY









Exhibit 10.34




OPTION TO ASSUME AND EXTEND LEASE




 




WHEREAS,

BERNARD LEVERE and ZELDA LEVERE, as Landlord, and PIONEER PHARMACEUTICALS, INC., as Tenant,

and ESSEX CHEMICAL CORP., as

Guarantor, entered into a Lease (the “Lease”) and Guaranty of Lease dated as at

December 1, 1986, relating to premises known and designated as 191 40th Street,

Irvington, New Jersey (the “Premises”); and




 




WHEREAS,

INTERNATIONAL VITAMIN CORPORATION, as Subtenant, (“IVC”) entered into a sublease (the

“Sublease”) of the Premises as of February 22, 1994; and




 




WHEREAS, IVC desires to obtain an Option to

assume the Lease and extend the term of the Lease;




 




NOW, for the mutual promises contained in

this Option, and other good and valuable consideration,




 




The parties hereby agree

as follows:




 




1.             IVC shall have the Option, provided it is not in default

under the Sublease at the time of the exercise of the Option, and provided

Tenant is not in default under the Lease at the time of the exercise of the

Option, to assume all the obligations of the Lease and become a Co-Tenant with

the Tenant under the Lease.




 




2.             IVC shall give written notice to the Landlord of the

exercise of the Option to assume the Lease by no later than June 30, 2001. Upon

giving written notice to the Landlord, IVC shall be deemed a Co-Tenant under

the Lease, except that its obligation to pay rent from the time of the notice

until December 31, 2001 shall be in the amount and in the manner as provided in

the Sublease.




 




 




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3.             IVC shall have the Option, provided it is not in default

under the Lease or the Sublease at the time of the exercise of the Option, and

provided Tenant is not in default under the Lease at the time of the exercise

of the Option, to extend the Lease for an additional term of five (5) years,

from January 1, 2002 to December 31, 2006 upon the same terms and conditions as

provided in the Lease as modified by this Option except that the annual base

rent during the years of such extension shall be Two Hundred Seventeen Thousand

Three Hundred Fifty ($217,350.00) Dollars.




 




4.             IVC shall have the Option, provided it is not in default

under the Lease and this Option at the time of the exercise of the Option, to

extend the Lease for an additional term of five (5) years, from January 1, 2007

to December 31, 2011 upon the same terms and conditions as provided in the

Lease, as modified by this Option, except that the annual base rent during the

years of such extension shall be as follows:




 




	

  2007


  	

   


  	

  $223,871.00


  	

   


  
	

  2008


  	

   


  	

  $230,587.00


  	

   


  
	

  2009


  	

   


  	

  $237,504.00


  	

   


  
	

  2010


  	

   


  	

  $244,629.00


  	

   


  
	

  2011


  	

   


  	

  $251,968.00


  	

   


  





5.             IVC may not exercise the extension Option provided in

paragraph 4 above unless it shall have timely executed the prior extension

Option provided in paragraph 3 above and is in occupancy and not in default at

the time of the exercise of the subsequent extension of the term.




 




6.             IVC shall, following the extension term provided in

paragraph 4 above, have no further extension Options.




 




7.             IVC shall give written notice to Landlord not less than

six (6) months prior to the last day of the initial term, or the first

extension term, as the case may be, of its election to extend 




 




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the term of the Lease, or the Option shall be deemed

waived.  Time is of the essence with

respect to said elections.  If IVC shall

exercise any such extension Option, the parties will, at the request of either,

execute a document evidencing such extension. If IVC shall exercise any such

extension Option, the references in the Lease to the term of the Lease shall be

deemed to mean the term as extended, except where expressly otherwise provided.




 




8.             (a)           IVC

acknowledges that, prior to its taking possession of the Premises, it inspected

the Premises and satisfied itself as to its environmental condition and

suitability for IVC’s intended use. Landlord represents and warrants that, to

the best of Landlord’s knowledge, there have been no spills or discharges of

Toxic or Hazardous Substances during Landlord’s ownership of the Premises, that

to the best of Landlord’s knowledge there are no underground tanks at the

Premises which were required to be registered pursuant to any environmental law

in effect at the commencement of the Sublease, and that during Landlord’s

ownership of the Premises Landlord has received no notices of violations of any

environmental laws concerning the Premises. Except for the foregoing

representations and warranties, Landlord makes no warranties or

representations, either oral or express, as to the environmental or other

condition of the Premises and as to all such matters IVC acknowledges that it

accepts the Premises AS IS as of the commencement of the Sublease.




 




(b)           IVC warrants that it will fully

comply with all applicable federal, state, and local laws, regulations,

administrative rulings, orders, ordinances, and the like, as they now exist or

may hereafter be amended or come into existence, pertaining to the protection

of the environment and natural resources, including but not limited to ECRA

(and its successor statute ISRA) and those regulating the handling and disposal

of waste materials, upon taking possession of the Premises and thereafter.




 




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(c)           IVC agrees to indemnify, and hold

harmless the Landlord and their successors and assigns (the “Indemnified

Parties”) from, and if requested in writing by any Indemnified Party, IVC shall

defend (with counsel satisfactory to the Landlord) any Indemnified Party

against, any fines, claims, orders, demands, reasonable costs, causes of

action, judgments, suits, losses, reasonable expenses (including, without

limitation, reasonable technical consultant fees, court expenses, reasonable

expenses paid to other professionals and reasonable legal fees), and damages arising:

(1) out of IVC’s or any of IVC’s permitted or non-permitted assignees or

sublessee’s breach of the foregoing warranty which occurs during or after the

Sublease term and the Lease term as may be extended by this Option except to

the extent same is attributable to the acts of an Indemnified Party and/or (2)

during or after the Sublease term and the Lease term as may be extended by this

Option, out of or in any way relating to the presence, release or disposal of

Toxic or Hazardous Substances on or from the Premises during the Sublease term

and the lease term as may be extended by this Option, unless the Toxic or

Hazardous Substances are present on the Premises solely as a direct result of

the acts of an Indemnified Party. This indemnity shall include, without

limitation, Landlord’s reasonable costs incurred in connection with:




 




(i)            Toxic or Hazardous Substances

present or suspected to be present in the soil, groundwater or sail vapor on or

under the Premises subsequent to the commencement of the Sublease;




 




(ii)           Toxic or Hazardous Substances that

migrate, flaw, percolate, diffuse, or in any way move onto or under the

Premises, subsequent to the commencement of the Sublease; or




 




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(iii)          Toxic or Hazardous Substances present

on or under the Premises as a result of any discharge, dumping or spilling

(accidental or otherwise) onto the Premises subsequent to the commencement of

the Sublease by any person, corporation, partnership or entity other than the

Landlord or its agents.




 




The indemnification

provided by this Subsection shall also specifically cover, without limitation,

reasonable costs incurred in connection with any investigation of site

conditions or any cleanup, remedial, removal, or restoration work required by

any federal, state or local governmental agency or political subdivision or

other third party because of the presence or suspected presence of Toxic or

Hazardous Substances in the soil, groundwater or soil vapor on or under the

Premises, unless the Toxic or Hazardous Substances are present solely as a

direct result of the actions of an Indemnified Party. Those costs may include,

but are not limited to, damages for loss or restriction on use of rentable or

usable space or of any amenity of the Premises, sums paid in settlements of

claims, reasonable attorneys’ fees, reasonable consultants’ fees and reasonable

experts’ fees. The foregoing environmental indemnity shall be governed by the

laws of the State of New Jersey, and shall survive the expiration or

termination of this Option and the Lease.




 




(d)           As used in the foregoing Subsection,

“Toxic or Hazardous Substances” shall be interpreted broadly to include, but

not be limited to, any material or substance that is defined or classified

under federal, state or local laws as: (i) a “hazardous substance” pursuant to

Section 101 of the Comprehensive Environmental Response, Compensation and

Liability Act, 42 U.S.C. ¶9601(14), Section 311 of the Federal Water Pollution

Control Act, 33 U.S.C. §1321, as or now hereafter amended; (ii) a “hazardous

waste” pursuant to Section 1004 or Section 3001 of the Resource Conservation

and Recovery Act, 42 U.S.C. §§6903, 6921, as now or hereafter 




 




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amended; (iii) a toxic pollutant under Section 307(a)

(1) of the Federal Water Pollution Control Act, 33 U.S.C. §1317(a)(1); (iv) a

“hazardous air pollutant” under Section 112 of the Clean Air Act, 42 U.S.C.

§7412, as now or hereafter amended; (v) a “hazardous material” under the Hazardous

Materials Transportation Uniform Safety Act of 1990, 49 U.S.C. App. §1802(4),

as now or hereafter amended; (vi) toxic or hazardous pursuant to regulations

promulgated now or hereafter under the aforementioned laws; or (vii) presenting

a risk to human health or the environment under other applicable federal, state

or local laws, ordinances or regulations, including but not limited to the New

Jersey Environmental Cleanup Responsibility Act (ECRA, N.J.S.A. 13:1K-6, et

seq.) (and its successor statute ISRA), as now or as may be passed or

promulgated or amended in the future. “Toxic or Hazardous Substances” shall

also mean any substance that after release into the environment and upon

exposure, ingestion, inhalation or assimilation, either directly from the

environment or directly by ingestion through food chains, will or may

reasonably be anticipated to cause death, disease, behavior abnormalities,

cancer or genetic abnormalities. “Toxic or Hazardous Substances” specifically

includes, but is not limited to, asbestos, polychlorinated biphenyls (“PCBs”);

petroleum and petroleum-based derivatives, and urea formaldehyde.




 




(e)           In the event IVC receives any notice,

letter, complaint, order, demand or other communication from a governmental

entity or other third party involving an environmental matter addressed by this

paragraph 8, IVC shall provide the Landlord with written notice of same within

five (5) business days after IVC is first put on notice of same. To the extent

not being performed by IVC the Landlord shall have the right (but not the

obligation) to perform any investigation, containment, environmental sampling

and monitoring, and, to the extent same is not being performed by IVC, to

perform abatement, remedial or cleanup actions on the Premises, 




 




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all upon giving written notice to IVC provided that

any such actions shall be carried out in a good and workmanlike manner and in

consultation with IVC so as to reasonably minimize interference with IVC’s business

operations. IVC agrees to provide such access to the Premises as may be

reasonably necessary to allow the Landlord and its representative to carry out

said actions.




 




(f)            This paragraph 8 shall survive the

expiration or termination of this Option and the Lease.




 




9.             At the end of the term of the Sublease or Lease or any

extension Option, or upon IVC vacating the premises before the end of such term

or being in default as to any term of the Sublease, Lease or this Option, IVC

shall, at its sole cost and expense remove all its fixtures and equipment from

the Premises and restore the Premises to the condition at the time of the

beginning of the Lease, except for ordinary wear and tear.




 




10.           Nothing in this Option shall affect,

release, or waive any obligations of PIONEER PHARMACEUTICALS, INC., as Tenant, or ESSEX CHEMICAL CORP., as Guarantor, of the Lease.




 




IN WITNESS, the parties have set their hands and

seals or caused these presents to be signed by their proper corporate officers

and caused their proper corporate seal to the affixed as of February         , 1995.




 




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  Signed, sealed

  and delivered


  	

   


  
	

  in the presence

  of:


  	

  /s/ Bernard

  Levere


  	

   


  
	

   


  	

  BERNARD LEVERE


  
	

     /s/

  Herbert Holmes


  	

   


  	

   


  
	

   


  	

    /s/

  Zelda Levere


  	

   


  
	

   


  	

  ZELDA LEVERE


  
	

   


  	

   


  	

   


  
	

  Attest:


  	

  INTERNATIONAL

  VITAMIN


  	

   


  
	

   


  	

  CORPORATION, a corporation,


  	

   


  
	

   


  	

  Sub-Tenant


  	

   


  
	

   


  	

   


  	

   


  
	

     /s/

  Peter Olesinski


  	

   


  	

  By 


  	

  /s/ Arthur Edell


  	

   


  
	

   


  	

  Secretary


  	

   


  	

  President


  
								





 




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