EXHIBIT 10.12
EXHIBIT A
SUBLEASE AGREEMENT
This Sublease Agreement is made as of the 20th day of May 1998 by and
between Mitsubishi Electronics America, Inc., a Delaware corporation located at
0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Sublessor"), and Community
Distributors, Inc., a Delaware corporation located at 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX 00000 (the "Sublessee").
WHEREAS, Sublessor is the tenant under a lease dated as of December 20, 1988
(the "Prime Lease"), made between Shuwa Investments Corporation as landlord and
Mitsubishi Electric Sales America, Inc., Sublessor's predecessor (Sublessor
absorbed its predecessor sister company by merger), as assigned by such landlord
to FWD Property Investors L.P. ("Overlandlord"), leasing office and warehouse
facilities located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 (the "Premises");
and
WHEREAS, Sublessor and Sublessee have agreed that Sublessor shall sublet the
Premises to Sublessee;
NOW, THEREFORE, the parties to this Sublease hereby agree as follows:
1. Premises.
(a) Sublessor hereby leases to Sublessee, and Sublessee hereby leases
from Sublessor, the Premises upon all the terms and conditions set forth in
this Sublease, subject to Overlandlord's consent thereto and written
confirmation that Sublessor is not in breach under the Prime Lease.
(b) The Premises situated in Franklin Township, New Jersey, consist of
the real property described or Exhibit A hereto and the building and
improvements located thereon, including 200,723 square feet of industrial
warehouse space and office space on some 22 acres of land.
(c) Sublessee has made its independent investigation of the Premises.
Sublessee acknowledges that Sublessor has not made any representations
regarding the condition of the Premises (including, but not limited to, the
zoning thereof, the appurtenances thereto or the furniture, fixtures and
equipment therein) and that Sublessor expressly disclaims all warranties,
including but not limited to habitability, merchantability and fitness for
particular purpose. Subject to the provisions of Subsection 3(a) hereof,
Sublessee hereby accepts the Premises in their "as is" condition as of the
date Sublessor makes the Premises available to Sublessee to commence
Sublessee's improvements and waives any and all claims against Sublessor for
latent and patent defects in the Premises or any part thereof. Sublessee
shall not make any alteration, addition or improvement to the Premises
without Sublessor's prior written consent in each instance, and when and as
required under the Prime Lease, the Overlandlord's consent Sublessor's prior
written consent shall not be unreasonably withheld.
(d) Sublessor's represents to Sublessee that, to the best of Sublessor's
knowledge, information and belief, there are no current code violations on
the Premises and improvements thereon.
2. Term.
(a) The Sublease shall commence on the date Sublessor makes the Premises
available to Sublessee to commence its improvements on the Premises, but in
no event later than ninety (90) days after execution of this Sublease
Agreement (the "Sublease Commencement Date"). Once determined, the Sublease
Commencement Date shall be confirmed in writing between the parties and
attached to this Sublease as Exhibit B. The Sublease Commencement Date may
be in accordance with a mutually agreed upon schedule gradually releasing
portions of the Premises to Sublessee. In any event, the Sublease
Commencement Date shall be subject to approval by Overlandlord and both
parties.
(b) The term of this Sublease shall commence on the Sublease
Commencement Date and shall end on March 31, 2004, unless sooner terminated
in accordance with this Sublease.
3. Rent.
(a) Throughout the term of this Sublease, Sublessee shall pay to
Sublessor as "Base Rent" for the Premise; monthly payments as shown on the
Rent Schedule attached as Exhibit C hereto. The Base Rent shall be due and
payable without any offset or deduction, in advance, on the first day of
each calendar month.
(b) The Base Rent shall be on a triple net basis and shall not include
any costs and expenses associated with the Premises and the operation of the
building and improvements thereon (the "Operations Expenses"). All
Operations Expenses shall be the sole responsibility of Sublessee.
(c) In addition to the Base Rent and the Operation Expenses, Sublessee
shall pay all personal property and real estate taxes, assessments, fees and
other charges that are levied and assessed against Sublessee's property
and/or the Premises on a timely basis directly to the taxing authority and
shall furnish Sublessor (and Overlandlord as may be required under the Prime
Lease) with satisfactory evidence of such payments. Sublessee shall
indemnify and hold Sublessor and Overlandlord harmless from and against any
costs, expenses, penalties and fees (including reasonable attorneys' fees)
arising out of or in connection with Sublessee's failure to make such
payments.
(d) Should any rental period during the term of this Sublease not
consist of a full month, rent shall be prorated. All rent shall be payable
to Sublessor at its address stated in this Sublease or as Sublessor may
otherwise direct in writing.
4. First Month Rent. No later than ten (10) days after the execution of this
Sublease, Sublessee shall pay to Sublessor, the first month Base Rent as a
deposit to be applied by Sublessor as such when due without any interest
accruing or payable to Sublessee. Such deposit shall be nonrefundable unless
Sublessor fails to deliver to Sublessee Overlandlord's consent to this Sublease
and Overlandlord's written confirmation that Sublessor is not in breach of the
Prime Lease.
5. Sublessee's Interior Improvements.
(a) When Sublessor vacates the Premises, it shall clean up the Premises
from its occupancy. At that time Sublessor will leave within the Premises
such portion of its existing work stations, partitions, furnishings,
furniture and other personal property as shall be set forth in Exhibit "E"
attached hereto. All such leftover property shall be available for use by
Sublessee throughout the term of this Sublease on an "as is" basis and
Sublessee shall leave them on the Premises at the termination or expiration
of this Sublease in the same condition as it was at the inception of this
Sublease, reasonable wear and tear excepted. The Premises shall be made
available to Sublessee to commence Sublessee's improvements at the earliest
practicable date convenient to Sublessor.
(b) Subject to Sublessor's approval which shall not be unreasonably
withheld and, when and if required under the Prime Lease, the approval of
the Overlandlord, Sublessee may remove interior building improvements
presently in place at the Premises. Such removal shall be performed at
Sublessee's sole expense.
(c) Sublessee shall submit to Sublessor its plan for improvements of the
Premises no later than thirty (30) days after the Sublease Commencement
Date. In such plan, Sublease shall designate the improvements which it
intends to become permanent. Such plan shall be subject to Sublessor's and,
when and as required by the Prime Lease, Overlandlord's review and approval.
Sublessor's approval shall not be unreasonably withheld. All costs
associated with Sublessee's improvements shall be borne by Sublessee.
Sublessee shall be responsible for any damage and/or loss to or within the
Building, including the Premises, and for any personal injury, death or
other property damage resulting from or incurred in connection with
Sublessee's improvements and shall indemnify, defend and hold harmless
Sublessor and Overlandlord from and against all losses, costs, damages and
expense incurred.
(d) Upon expiration or termination of this Sublease, Sublessee's
improvements which were intended to become permanent shall remain installed
at the Premises and become the property of Sublessor or Overlandlord, as
applicable. Sublessee may remove its other improvements; provided that it
restores the Premises to their prior condition upon such removal.
(e) Sublessor shall allow Sublessee to utilize the existing telephone
system on the Premises on an "as is" basis. Sublessee shall leave it on the
Premises at the expiration or termination of this Sublease in at least as
good a condition as it was at the inception of this Sublease, reasonable
wear and tear excepted.
6. Possession and Use.
(a) Sublessee shall use and occupy the Premises only for such purposes
as are permitted under the Prime Lease and for no other purpose.
(b) Sublessee shall not commence operation of its business on the
Premises unless and until Sublessee has complied with all applicable
building codes, health and safety codes, regulations and ordinances
applicable to Sublessee's use and occupancy of the Premises or Sublessee's
business. Nor shall Sublessee use or suffer or permit any person to use the
Premises or any part thereof in violation of any law or regulation of any
governmental authority having jurisdiction over the Premises, and Sublessee
shall at all times occupy and use the Premises solely for their intended
purposes. Sublessee shall indemnify, defend and hold harmless Sublessor.
Overlandlord, their corporate affiliates and their officers, directors,
shareholders, agents, representatives, contractors and employees from and
against the consequences of any violation of such laws, regulations, codes,
ordinances or of any provision of this section.
(c) Sublessee shall keep and maintain the Premises in a clean and
sanitary condition and in such condition as may be required by any insurance
underwriters or carriers maintaining coverage on the Premises. Sublessee
shall not use or permit the Premises to be used in any manner which would
impair the structural integrity, safety or strength of any buildings or
improvements on the Premises. Sublessee shall not conduct or operate its
business in any manner whatsoever which would violate any such conditions
nor conduct or operate its business so as to constitute a waste on the
Premises or a nuisance to or interference with the Premises.
(d) Sublessee shall not do or permit to be done any hazardous activities
and shall comply with all rules, orders, regulations and requirements of
industrial risk insurers or any other organization performing a similar
function. Sublessee shall in no event store or use explosives, toxic waste
or radioactive materials at the Premises. Sublessee, shall not dispose of
any solvents by pouring them on the ground or dispose of solvents (treated
or untreated) or other hazardous materials in violation of the rules or
regulations promulgated by any governmental agency or utility having
jurisdiction over the sewer system servicing the Premises.
(e) Sublessee shall pay, at least ten days before delinquency, all
taxes, assessments, license fees and other charges that are levied or
assessed against Sublessee's personal property installed or located in or on
the Premises and that become due during the term of this Sublease. On demand
by Sublessor, Sublessee shall furnish Sublessor with satisfactory evidence
of these payments.
(f) Sublessee shall keep the Premises free from any liens arising out of the
work performed, materials furnished or obligations incurred by or for the
benefit of Sublessee, including but not limited to its improvements on the
Premises. Notwithstanding the foregoing, should any such lien arise, Sublessee
shall file, within ten (10) days, an appropriate bond to remove such lien or
post other security acceptable to Sublessor.
7. Prime Lease.
(a) This Sublease is subject and subordinate to the Prime Lease. Sublessor
represents to Sublessee that the Prime Lease is in full force and effect and
that, to the best of its knowledge, no default exists on the part of any party
to the Prime Lease. Sublessor shall pay to Overlandlord all rent due under the
Prime Lease. Sublessee acknowledges that an expurgated copy of the Prime Lease
is attached as Exhibit D.
Sublessee shall neither do nor permit anything to be done which could cause the
Prime Lease to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in the Overlandlord or which otherwise
constitutes a breach or default of the tenant's obligation under the Prime
Lease, and Sublessee shall indemnify, defend and hold harmless Sublessor, its
corporate affiliates and their officers, directors, shareholders, agents,
representatives, contractors and employees from and against all claims of any
kind whatsoever by reason of any breach or default on the part of Sublessee by
reason of which the Prime Lease may be terminated or forfeited or by virtue of
which Sublessor shall have any liability or obligation to Overlandlord or any
third party.
(b) The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Prime Lease, except for (1) those provisions of the Prime Lease which may be
inconsistent with this Sublease, in which case the terms and conditions of this
Sublease shall control, and (2) those provisions of the Prime Lease which are
excluded from the expurgated version provided to Sublessee. Therefore, for the
purpose of this Sublease, whenever in the Prime Lease the word Lessor is used,
it shall be deemed to mean Sublessor, and whenever in the Prime Lease the word
Lessee is used it shall be deemed to mean Sublessee. Notwithstanding the
foregoing, all rights of Overlandlord under the Prime Lease with regard to
access to the Premises or notice or consent with respect thereof shall remain
valid under this Sublease.
(c) Sublessee shall defend, indemnify and hold harmless Sublessor,
Overlandlord and their respective corporate affiliates, officers, directors,
shareholders, agents, representatives, contractors and employees from and
against all claims of any kind whatsoever arising out of or in connection with
Sublessee's failure to comply with or perform Sublessee's assumed obligations
pursuant to subsection 7(b).
8. Insurance and Indemnity.
(a) At it sole cost and expense, Sublessee shall at all times that this
Sublease is in effect carry and maintain the following insurance, with a
financially sound and reputable insurance carrier(s) acceptable to Sublessor,
and to Overlandlord if required under the Prime Lease, in the amounts specified
and in the form hereinafter provided for:
(i) Comprehensive general liability insurance insuring Sublessor and
Sublessee, and Overlandlord as required under the Prime Lease, with respect
to occurrences arising on or about the Premises, and covering personal
injury, death and property damage with a single combined limit of not less
than five million dollars ($5,000,000), against any and all liability of
Sublessee and its authorized representatives with respect to the Premises or
arising out of the maintenance, use or occupancy thereof, by Sublessee or
any of its employees, agents, guests or invitees or the performance or
non-performance by Sublessee of the terms and conditions of this Sublease;
and
(ii) All risk insurance including earthquake and flood coverage, with
vandalism and malicious mischief endorsement coverages, on all of
Sublessee's personal property and Improvements in, on or about the Premises
to the extent of at least 100% of their full replacement value. The proceeds
from any such policy shall be used by Sublessee for the replacement of
personal property and restoration of Sublessee's improvements; and
(iii) Sublessor, and Overlandlord as required under the Prime Lease,
shall be named as an additional insured in all such insurance policies and
coverages.
(b) Sublessee shall cause its insurer to waive all rights of recovery by way
of subrogation against Sublessor and Overlandlord in connection with any damages
covered by any such insurance policies and coverages as set forth in this
section. On or before the Sublease Commencement Date, Sublessee shall furnish to
Sublessor and Overlandlord and maintain continuously throughout the term of this
Sublease certificates of insurance as evidence of Sublessee's compliance with
its insurance obligations contained in this section.
(c) Each policy of insurance required to be provided by Sublessee under this
section and each certificate therefor shall (i) provide for at least thirty (30)
days' written notice to Sublessor and Overlandlord prior to cancellation,
expiration, reduction of coverage or other material modification; and
(ii) provide that no act or omission of Sublessee shall result in forfeiture or
limit or otherwise affect the obligation of the insurance company to pay to or
on behalf of Sublessor the amount of any loss sustained. Sublessee shall not do
or permit to be done anything which shall invalidate any of the insurance
policies referred to in this Sublease. If Sublessee shall fail to procure and
maintain any insurance required to be maintained by it by virtue of any
provision of this section, Sublessor may, but shall not be required to, procure
and maintain such insurance at the expense of Sublessee, and the cost thereof
shall constitute Additional Rent.
(d) Neither Sublessor, any of its corporate affiliates, Overlandlord nor any
of their respective officers, directors, shareholders, agents, representatives,
contractors and employees shall be liable for any damage or liability of any
kind or for any injury to or death of any persons or damage to any property of
Sublessee or any other person during the term of this Sublease from any cause
whatsoever by reason of the use, occupancy and enjoyment of the Premises by
Sublessee or any person thereon or holding under Sublessee. Sublessee shall
indemnify, defend and hold harmless Sublessor, its corporate affiliates,
Overlandlord and their respective officers, directors, shareholders, agents,
representatives, employees and contractors from and against all liability
whatsoever on account of any asserted damage or injury and from all liens,
claims and demands arising out of any such use of this
Premises, any improvements, repairs or alterations which Sublessee may make
or cause to be made upon the Premises or the performance or non-performance by
Sublessee of any of the terms and conditions of this Sublease, except to the
extent determined to have been caused by Sublessor's negligence. This obligation
to indemnify shall include, without limitation, claims of Sublessee's employees
or agents that may be covered by Worker's Compensation Insurance and all costs,
and expenses, including, without limitation, attorneys' fees and costs, and all
other losses, costs, damages, expenses and liabilities that Sublessor may incur
in connection with any such damage, injury, claim or demand.
(e) Sublessee acknowledges that its business on the Premises will be
conducted for Sublessee's sole economical benefit. All risks of Sublessee's
operation at the Premises shall be borne exclusively by the Sublessee. Sublessee
hereby assumes and shall be liable for, and shall indemnify, defend and hold
harmless Sublessor, Sublessor's corporate affiliates, Overlandlord and their
respective officers, directors, shareholders, agents, representatives,
contractors and employees (the "Indemnitees") in connection with any and all
losses, costs, damages, expenses and liabilities, including attorneys' fees and
costs, liens, fines and penalties of any kind or nature, civil or criminal, and
special, indirect and consequential damages (collectively "Losses"), associated
with Sublessee's business operation at the Premises and any permits and licenses
which may be required therefor. Sublessee hereby releases the Indemnitees from
any and all Losses arising out of or associated with Sublessee's use of the
Premises and any permits and licenses which may be required therefor.
9. Environmental Obligations. Except with respect to and to the extent of any
environmental condition, obligation or liability existing at the Premises before
the earlier of the Sublease Commencement Date or the commencement of
construction of Sublessee's improvements, Sublessee hereby assumes any and all
environmental obligations and liabilities in connection with the Premises with
the understanding that such obligations and liabilities shall survive this
Sublease with respect to any negligent, wrongful or illegal act or omission of
Sublessee or violation of any condition of or agreement under this Sublease
binding on Sublessee. For purposes hereof, Sublessee's environmental obligations
and liabilities shall include, but not be limited to, all disposal storage,
recycling, transport and treatment of any hazardous substances, toxic
substances, wastes or regulated substances or material under any applicable
federal, state or local law or the reporting and disclosure requirements in
connection therewith. Sublessee shall indemnify, defend and hold harmless
Sublessor, Sublessor's corporate affiliates, Overlandlord and their respective
officers, directors, shareholders, agents, representatives, contractors and
employees from and against any and all losses, costs, damages and expenses
including attorneys' fees and costs arising from or in connection with or in any
manner related to such environmental obligations and liabilities.
10. Americans With Disabilities Act. Notwithstanding anything to the contrary
contained in this Sublease, Sublessee shall comply with any and all applicable
requirements of the Americans with Disabilities Act pertaining to the Premises
at Sublessee's sole cost and expense.
11. Assignments and Subletting. Except as otherwise permitted below, Sublessee
shall not transfer, assign, sublet, hypothecate, sell, change ownership or
otherwise divest itself of any or all of its interest in and to the Premises or
this Sublease and shall not permit Sublessee's interest in this Sublease to be
vested in any third party by operation of law or otherwise. Notwithstanding the
foregoing, Sublessee may, subject to Overlandlord's approval as per the Prime
Lease, assign this sublease or sublet all or any portion thereof to a parent,
subsidiary or affiliated company of Sublessee, or to any resulting entity
following a merger or consolidation of Sublessee with another company. A
transfer, sale or hypothecation of Sublessee's stock shall not constitute an
assignment or sublease. In the event of any assignment or sublet, Sublessee
shall not be relieved of any liability under this sublease and all the
provisions of this sublease shall be binding upon the assignee or sub-sublessee.
12. Eminent Domain
(a) In the event that all or substantially all of the Premises are taken or
made unaccessible under the power of eminent domain, this Sublease shall
terminate as of the date possession is so taken. If more than twenty percent
(20%) of Premises are taken, Sublessee shall have the right to terminate this
Sublease. If this Sublease is terminated, all rents shall be paid up to the date
of possession of the Premises by public authority, and Sublessor shall make an
equitable refund of any rent paid by Sublessee in advance and not yet earned.
(b) In the event that any taking under the power of eminent domain does not
result in the termination of this Sublease a set forth above, this Sublease
shall remain in full force and effect, except that the rent shall be reduced in
the same proportion as the square footage of the Premises taken bears to the
square footage of the Premises immediately prior to such taking.
(c) All consideration or damages awarded for any taking under the power of
eminent domain and all consideration received by Sublessor pursuant to a
voluntary sale by Sublessor to any public or quasi-public body, agency or
person, corporate or otherwise, having the power of eminent domain, either under
threat or condemnation or while condemnation proceedings are pending, whether
for the whole or a part of the Premises, shall belong to and be the property of
Sublessor (or Overlandlord as determined under the Prime Lease) regardless of
how denominated. However, Sublessee shall be entitled to retain any compensation
for loss or damage to Sublessee's trade fixtures and removable property.
13. Default.
(a) Any of the following events shall constitute a default of this Sublease
by Sublessee:
(i) Failure of Sublessee to pay any rent or any other charge, or any
part thereof, required to be paid under this Sublease when due; or
(ii) Failure of Sublessee to observe or perform any other provision,
covenant, obligation or condition of this Sublease to be observed or
performed by Sublessee when such failure continues for ten (10) days after
notice thereof from Sublessor to Sublessee: or
(iii) Abandonment or vacation of the Premises by Sublessee; or
(iv) A general assignment by Sublessee for the benefit of creditors or
the filing by or against Sublessee of any proceeding under an insolvency or
bankruptcy law, unless, in the case of a proceeding filed against Sublessee,
such proceeding is dismissed within thirty (30) days, the appointment of a
trustee or receiver to take possession of all or substantially all of the
assets of Sublessee, unless possession is restored to Sublessee within
thirty (30) days, or any attachment, execution or other judicially
authorized seizure of all or substantially all of Sublessee's assets located
upon the Premises or of Sublessee's interest in this Sublease, unless such
seizure is discharged within thirty (30) days.
(b) In the event of any such default by Sublessee, in addition to any other
remedies available to Sublessor at law or in equity, Sublessor may treat the
occurrence of any one or more of said events as a breach of this Sublease. In
such event, in addition to any or all other rights or remedies Sublessor may
have under this Sublease and as provided by law, Sublessor shall have the right
to declare the term of this
Sublease ended and to re-enter the Premises and take possession thereof and
remove all persons therefrom and Sublessee shall have no further claim thereon
or thereunder.
(c) Should Sublessor elect to terminate this Sublease under this section,
Sublessor may recover from Sublessee as damages:
(i) The worth at the time of award of any unpaid rent which had been
earned at the time of such termination, plus
(ii) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss, if any, that Sublessee proves could
have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount
of such rental loss, if any, that Sublessee proves could be reasonably
avoided; plus
(iv) Any other amount necessary to compensate Sublessor for all the
detriment proximately caused by Sublessee's failure to perform its
obligations under this Sublease or which in the ordinary course of events
would be likely to result therefrom, including but not limited to any
attorneys' fees and costs incurred by Sublessor as a result of or in
connection with (1) such failure or with the enforcement of any term or
condition contained in this Sublease. (2) any cost and expenses incurred by
Sublessor in maintaining or preserving the Premises after such default or
preparing the Premises for reletting to a new tenant and (3) any repairs or
alterations to the Premises for such reletting, leasing commissions or any
other costs and expenses necessary or appropriate to relet the Premises;
plus
(v) At Sublessor's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in clauses (i) and (ii) above, the "worth at the time of award" is
computed by allowing interest at the maximum rate permissible. As used in clause
(iii) above, the "worth at the time of award" is computed by discounting such
amount at the discount rate of the Federal Reserve Bank at the time of award
plus 1%.
(d) Notwithstanding anything to the contrary contained in this Sublease, in
the event of default, Sublessor may, but shall not be obligated to, require that
all articles of personal property, other than inventory, and all business and
trade fixtures, machinery and equipment, furniture and movable partitions owned
by Sublessee or installed by Sublessee on the Premises remain on the Premises,
and, in that event and continuing during the length of such default. Sublessor
shall have the rights, subject to the rights of prior lienholders, to take
possession of and hold such property as security, to store such property at
Sublessee's expense and, upon giving thirty (30) days' notice to Sublessee, to
cause such property to be sold at private or public sale and apply the net
proceeds of sale, after all costs and expenses of getting the property ready for
sale and selling the property, including attorney's fees and costs, against
Sublessee's obligations to Sublessor; provided that Sublessor may, at its
option, require Sublessee to forthwith remove such property.
(e) The remedies given to Sublessor in this section are cumulative and shall
be in addition and supplemental to all other rights or remedies which Sublessor
may have under the laws then in force.
14. Notices. Whenever under the terms of or in connection with this Sublease
any notice, approval, advice, consent or demand is proper or required to be
given or served by either party, such notice, approval, advice, consent or
demand shall be in writing and shall be given or served by recognized overnight
courier service, with all charges prepaid, addressed as follows:
if to Sublessor:
Mitsubishi Electronics America, Inc.
0000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Executive Vice President/Administration
with a copy to:
Mitsubishi Electric America, Inc.
0000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Executive Vice President and General Counsel
if to Sublessee:
Community Distributors, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Chief Executive Officer
with a copy to:
Xxxxxxxxx & Xxxxxxx
000 Xxxxxxxx Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
or to such other address for either party as may be supplied by notice given in
accordance herewith. Notice shall be deemed effective on the date of receipt or
the date on which delivery is refused.
15. Sublessor's Access to Premises.
(a) In addition to any right of access to the Premises held by Overlandlord
under the Prime Lease, Sublessor shall have the right to enter and inspect any
portion of the Premises to assure compliance by Sublessee with Sublessee's
obligations under this Sublease. Such inspections shall be made during normal
business hours and upon reasonable notice except in the event of an emergency.
(b) In addition to such right to periodic inspection, Sublessor shall have
the right to enter the Premises as often as Sublessor reasonably deems
necessary, during normal business hours and upon reasonable notice, except in
the event of an emergency:
(i) to show the Premises to prospective subtenants;
(ii) to post notices of nonresponsibility;
(iii) in case of an emergency; and
(iv) to otherwise enforce Sublessor's rights under this Sublease.
(c) Sublessor's rights of entry pursuant to this section may be exercised
without Sublessor being deemed guilty of an eviction of Sublessee and without
abatement of rent. Sublessor shall not unreasonably interfere with the business
of Sublessee when exercising the right of entry under this Sublease and shall be
responsible only for damage caused by any unreasonable entry or negligent
conduct during the entry. Except as otherwise provided in this sublease,
Sublessee hereby waives any claim for damages for any injury or inconvenience to
or interference with Sublessee's business, any loss or occupancy or quiet
enjoyment of the Premises and any other loss occasioned thereby. Any entry to
the Premises by Sublessor pursuant to this section, shall not under any
circumstances be construed or deemed to be forcible or unlawful entry into or a
detainer of the Premises or an eviction of Sublessee from the Premises or any
portion thereof. No provision of the Sublease shall be construed as obligating
Sublessor to perform any repairs, maintenance or alterations to the Premises
unless they are necessitated by the acts of Sublessor.
16. Waiver. The waiver by Sublessor or Sublessee of any breach of any term,
covenant or condition contained in this Sublease shall not be deemed a waiver of
any subsequent breach of the same or any other term, covenant or condition
contained in this Sublease. Sublessor's consent to or approval of any of
Sublessee's conduct shall not be deemed to relieve Sublessee from obtaining
Sublessor's waiver, consent or approval of any similar act or subsequent breach
by Sublessee. Sublessor's acceptance of rent shall not be
deemed to be a waiver of any prior breach by Sublessee of any term, covenant or
condition, except as to payment of the rent so accepted by Sublessor, regardless
of Sublessor's knowledge of such preceding breach at the time of acceptance of
such rent.
17. Broker. Sublessee and Sublessor each represent and warrant to the other
that neither has had any dealings with any person, firm, broker or finder in
connection with this Sublease, other than the Xxxxxx Company and CB commercial,
and each party agrees to indemnify, defend and hold harmless the other party
from and against any and all liability, costs, expenses, including reasonable
attorneys' fees and costs, for compensation, commission or charges which may be
claimed by the indemnifying party's own broker identified herein or by any such
unnamed broker, finder or other similar party by reason of any dealings or
actions of the indemnifying party. Sublessor shall be responsible to pay for the
commission to the two above named brokers on a fifty/fifty basis in accordance
with the commission agreement between Sublessor and Xxxxxx Company.
18. Quiet Enjoyment. Subject to Sublessee's compliance with the covenants
and agreements, terms, provisions and conditions of this Sublease, Sublessor
covenants that Sublessee shall quietly enjoy the Premises without interruption
by Sublessor.
19. Miscellaneous Provisions.
(a) All payment and indemnification obligations of Sublessee, shall survive
the expiration or termination of this Sublease. If Sublease fails to pay
Sublessor any amount payable under this Sublease when due, such amount shall
bear interest at the rate of one and one-half percent (1.5%) per month or the
highest rate permitted by law, whichever is less, from its due date until paid.
Sublessee shall pay Sublessor for all costs of collection, including attorneys'
fees and costs.
(b) Upon the expiration of earlier termination of this Sublease, Sublessee
shall quit or surrender the Premises to Sublessor "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and casualty
damage not caused by Sublessee, or any of its employees, invitees, guests,
agents or contractors.
(c) If Sublessee remains in possession of the Premises after the expiration
or earlier termination of this Sublease, Sublessee shall be deemed to be
occupying the Premises as a Sublessee from month to month at the sufferance of
Sublessor at 150% of the rental rate in effect at the time of such expiration or
termination, subject to all of the terms and conditions of this Sublease. The
foregoing is in addition to and does not affect Sublessor's right to entry or
any other rights of Sublessor under this Sublease.
(d) The language in all parts of this Sublease shall in all cases be
construed simply according to its fair meaning and not strictly for or against
either Sublessor or Sublessee.
(e) Captions and headings are for convenience only and shall not be used in
interpreting the terms and provisions of this Sublease.
(f) This Sublease contains all of the agreements of the parties with respect
to the subject matter of this Sublease, and no prior arrangement or
understanding pertaining to any such matter shall be effective for any purpose.
(g) This Sublease cannot be changed orally, but only in a writing duly
executed by the parties.
(h) The enforceability, interpretation and all other aspects of this
Sublease shall be governed by and construed according to the laws of the State
of New Jersey.
(i) Each party represents that it has full power and authority to enter into
and perform this Sublease and that the individual executing this Sublease on its
behalf has been duly authorized and empowered to enter into this Sublease on its
behalf.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
specified on the first page hereof.
MITSUBISHI ELECTRONICS AMERICA, INC. COMMUNITY DISTRIBUTORS, INC.
By: XXXXX X. XXXXXXXX By: XXXXX XXXXXXX
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Name: XXXXX X. XXXXXXXX Name: XXXXX XXXXXXX
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Title: VP: HR. ADMIN. Title: PRES & CEO
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Date: 5-21-98 Date: 5-21-98
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