SUBLEASE
BETWEEN
TWIN COUNTY GROCERS, INC.
AND
SOLUCORP
DATED AS OF
MARCH 1, 1996
TABLE OF CONTENTS
ARTICLE NUMBER SECTION PAGE NUMBER
ARTICLE I. MASTER LEASE 1
ARTICLE II. PREMISES, RENT AND USE 3
ARTICLE III. BUILD-OUT 5
ARTICLE IV. ASSIGNMENT AND SUBLET 5
ARTICLE V. CONDITIONAL LIMITATIONS 5
ARTICLE VI. DECLARATION 12
ARTICLE VII. ADDITIONAL RENT 13
ARTICLE VIII. MECHANIC'S LIENS 14
ARTICLE IX. INDEMNIFICATION, RISK AND
LIABILITY 15
ARTICLE X. MAINTENANCE OF PREMISES 16
ARTICLE XI. INSURANCE 17
ARTICLE XII. SURRENDER OF PREMISES 18
ARTICLE XIII. SUBORDINATION AND ATTORNMENT 19
ARTICLE XIV. SECURITY DEPOSIT 21
ARTICLE XV. NOTICES 22
ARTICLE XVI. MEMORANDUM OF SUBLEASE 23
ARTICLE XVII. LACK OF PARTNERSHIP OR
ASSOCIATION 23
ARTICLE XVIII. NO BROKER 24
ARTICLE XIX. ATTORNEYS FEES 24
ARTICLE XX. NO ALTERATIONS 24
ARTICLE XXI. SIGNS 25
ARTICLE XXII. HOLDOVER 25
ARTICLE XXIII. PARKING 25
ARTICLE XXIV. ENTIRE AGREEMENT 25
ARTICLE XXV. COVENANTS BINDING ON
RESPECTIVE PARTIES 26
ARTICLE XXVI. VALIDITY/PARTIAL VALIDITY 26
ARTICLE XXVII. RIGHTS LIMITED BY THE
MASTER LEASE 26
ARTICLE XXVIII. SUBLESSEE OBLIGATIONS TO
COMPLY WITH MASTER LEASE 26
ARTICLE XXIX. AGENT FOR SERVICE 27
Exhibit "A" and made a part of this agreement.
1.1 All of the terms, provisions, covenants and conditions contained in the
MASTER LEASE except as herein otherwise expressly provided, and such rights and
obligations as are contained in the MASTER LEASE, during the term of this
Sublease are hereby imposed upon the respective parties hereto, the SUBLESSOR
being substituted for the Lessor or Landlord in the MASTER LEASE, and the
SUBLESSEE being substituted for the Lessee or Tenant in the MASTER LEASE, except
as modified and amended by this Sublease.
1.2 This Sublease is subject to all of the terms, covenants, agreements,
provisions, and conditions of the MASTER LEASE;
1.3 This Sublease shall not be deemed or construed to modify, amend or
affect the terms and provisions of the MASTER LEASE or SUBLESSOR'S obligations
thereunder, to the extent applicable, which shall continue to apply to the space
involved and the occupants thereof as if this Sublease had not been made;
1.4 If SUBLESSOR defaults in paying any Rents, OWNER is authorized to
collect any Rents due or accruing from SUBLESSEE and to apply the net amounts
collected to the Rents due under the MASTER LEASE in such priorities as OWNER
may determine;
1.5 OWNER's receipt or acceptance of any payments from SUBLESSEE shall not
be deemed or construed as releasing SUBLESSOR from SUBLESSOR's obligations under
the MASTER LEASE or the acceptance of SUBLESSEE as a direct tenant.
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ARTICLE II. PREMISES, RENT and USE
2.0 SUBLESSOR hereby sublets to SUBLESSEE, and SUBLESSEE hereby hires from
SUBLESSOR, approximately 7,000 square feet of the LEASED PREMISES on the ground
and second floor as same is shown on a sketch annexed hereto as Schedule "B",
("DEMISED PREMISES") for a six (6) year term commencing March 1, 1996 and ending
on February 28, 2002, at the annual base rent of One Hundred Forty Four Thousand
($144,000) Dollars, which SUBLESSEE hereby agrees to pay in equal monthly
installments in advance on the first day of each and every month during the term
hereof, provided, however, that the first of said monthly installments shall be
paid to SUBLESSOR simultaneously with the execution and delivery of this
Agreement.
2.1 Electrical service, water, heating, ventilation and air conditioning
shall be maintained by SUBLESSOR and SUBLESSOR shall operate the heating,
ventilating and air conditioning systems (hereinafter called the "systems") and,
subject to energy conservation requirements of governmental authorities, shall
furnish heat, ventilating and air conditioning service in the DEMISED PREMISES
through such systems, as may be required for comfortable occupancy of the
DEMISED PREMISES. The charges and costs of maintaining the systems shall be
included in the base rent. SUBLESSOR shall also provide electrical service,
water service, without specific measurement, which shall be included in the base
rent.
2.2 Except as is otherwise set forth herein, SUBLESSEE shall at its expense
procure and maintain all governmental licenses and
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permits including without limitation sign permits required for the operation of
SUBLESSEE'S business at the DEMISED PREMISES and at all times comply with the
requirements of each such licenses and permits.
2.3 Said premises shall be used by SUBLESSEE for general office use
including storage and meeting rooms, and for no other purpose or purposes
whatsoever.
2.4 SUBLESSEE is not obligated to pay a proportionate share of Real Estate
Taxes.
2.5 SUBLESSEE shall pay an additional monthly sum to be agreed to in
writing by the parties prior to June 1, 1996, as additional rent for ordinary
refuse removal, which shall be due in advance on the first day of each and every
month during the term of this lease commencing June 1, 1996. Thereafter the
refuse expense may be increased in proportion to increases in overall refuse
removal costs incurred by SUBLESSOR. In the event the parties fail to agree upon
the initial refuse expense prior to June 1, 1996 then the refuse expense shall
be determined by arbitration in Rockland County, New York administered by the
American Arbitration Association in accordance with its Commercial Arbitration
Rules. All fees and expenses of the arbitration shall be borne by the parties
equally. However, each party shall bear the expense of its own counsel, experts,
witnesses, and preparation and presentation of proofs.
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ARTICLE III. BUILD-OUT
3.0 Notwithstanding any terms to the contrary herein, prior to SUBLESSEE's
occupancy, SUBLESSOR shall construct partitions in the DEMISED PREMISES in
accordance with the sketch annexed hereto as Schedule "B" and shall obtain all
applicable building permits and certificates of occupancy at its sole cost and
expense.
3.1 SUBLESSEE shall not perform any construction or make any alterations,
additions or changes to the premises without the prior written consent of OWNER
and SUBLESSOR.
ARTICLE IV. ASSIGNMENT AND SUBLET
4.0 SUBLESSEE shall not, without the prior written consent of SUBLESSOR and
OWNER, assign this Sublease, nor suffer or permit it to be assigned by operation
of law or otherwise, nor shall SUBLESSEE, without the prior written consent of
SUBLESSOR and OWNER, underlet or permit the DEMISED PREMISES, or any part
thereof, to be used by others. The restrictions contained in this Article IV
shall not apply to a sale or merger of SUBLESSEE, where the Assignee is
financially responsible.
ARTICLE V. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS
5.0 This Sublease and the term are subject to the limitations that, if at
any time after the date hereof, any one of the following events (hereinafter
called an "Event of Default") shall occur:
a. If SUBLESSEE shall make an assignment for the benefit of its creditors;
or
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b. If any petition shall be filed by or against SUBLESSEE in any court,
whether or not pursuant to any statute of the United States or of any State, in
any reorganization, composition, extension, arrangement or insolvency
proceedings, and the same is not dismissed in SIXTY (60) days as respects any
petition filed against SUBLESSEE provided during such period SUBLESSEE continues
to pay all Rent, and other charges and perform all of its obligations under this
Sublease;
c. If SUBLESSEE, or a trustee or custodian appointed for all or a
substantial portion of SUBLESSEE'S property pursuant to the provisions of any
insolvency, bankruptcy, reorganization or other law then in effect, shall fail
within sixty (60) days or such other period of time provided by law or an order
of a court having competent jurisdiction, to provide SUBLESSOR with adequate
protection as that term is used in 11 USC 361, and specifically the indubitable
equivalent of SUBLESSOR'S interest in the Premises as provided in 11 USC 361(3)
and/or adequate assurances of future performance other than this SUBLEASE, as
required by 11 USC Section 365 (b). In the event that a petition shall be filed
by or against SUBLESSEE in any bankruptcy, reorganization, composition,
arrangement or insolvency proceeding pursuant to the provisions of the present
Bankruptcy Code or any subsequent Code or Laws similar thereto or amending same,
demand shall be and is hereby deemed automatically made for relief from the
imposition of the automatic stay presently imposed by 11 USC 362, or such later
section and shall be deemed the request of SUBLESSOR for a hearing to be held
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with regard to the modification, termination or lifting of said stay and shall
be deemed effective as of the date of filing of said petition or by or against
SUBLESSEE pursuant to 11 USC Section 362(e); or
d. If SUBLESSEE shall assign, mortgage or encumber this Sublease, or sublet
the whole or any part of the DEMISED PREMISES, otherwise than as expressly
permitted hereunder; or
e. If SUBLESSEE shall fail to pay any installment of the Base Rent set
forth in Article II of this Sublease or any part thereof more than thirty (30)
days after the same shall be due; or
f. If SUBLESSEE shall fail to pay any item of Additional Rent or any other
charge required to be paid by SUBLESSEE hereunder, or any part thereof more than
thirty (30) days after the same shall be due; or
g. If SUBLESSEE shall fail to perform or observe any other requirement of
this Sublease not hereinbefore in this Paragraph 5.0 specifically referred to on
the part of SUBLESSEE to be performed or observed, and such failure shall
continue for thirty (30) days after notice thereof from SUBLESSOR or OWNER to
SUBLESSEE; or
h. If SUBLESSEE shall abandon the DEMISED PREMISES or fail to keep the
DEMISED PREMISES occupied to the extent necessary to maintain fire insurance
coverage; or
i. If any execution, attachment or other process of law or equity shall be
issued against SUBLESSEE or a substantial portion of SUBLESSEE'S property,
whereupon the DEMISED PREMISES
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shall be taken or occupied by someone other than SUBLESSEE; or
j. If a petition or a proceeding is filed or commenced by or against
SUBLESSEE for its dissolution or liquidation (other than in connection with any
merger permitted hereunder), or if its property is taken by any governmental
authority in connection with a dissolution or liquidation, and if filed or
commenced against SUBLESSEE the same is not dismissed within sixty (60) days; or
k. If SUBLESSEE shall fail to pay, bond or otherwise remove, any amount due
in connection with any work done in connection with the DEMISED PREMISES within
the time specified in Article 8 hereof; then upon the happening of any one or
more of the aforementioned Events of Default, and the expiration of the period
of time for curing the same, SUBLESSOR may give to SUBLESSEE a notice of
intention to end the term of this Sublease ("Notice of Termination") at the
expiration of ten (10) days from the date of service of such Notice of
Termination, and at the expiration of such ten (10) days, the term, as well as
all of the right, title and interest of SUBLESSEE hereunder, shall wholly cease
and expire in the same manner and with the same force and effect as if the date
of expiration of such ten (10) day period were the date originally specified
herein for the expiration of this Sublease and the term, and SUBLESSEE shall
then quit and surrender the Premises to the SUBLESSOR, but SUBLESSEE shall
remain liable as hereinafter provided.
5.1 If this Sublease shall be terminated as in the preceding Paragraph 5.0
hereof provided, SUBLESSOR or SUBLESSOR'S agents or
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servants, may re-enter the DEMISED PREMISES and remove therefrom SUBLESSEE, its
agents, employees, servants, licensees, and any subtenants and other persons,
firms or corporations and all or any of its or their property, either by summary
dispossession proceedings or by any suitable action or proceeding at law,
without being liable to indictment, prosecution or damages therefor, and
repossess and enjoy said premises, together with all additions, alterations and
improvements thereto.
5.2 In case of any such termination, re-entry, or dispossession by summary
proceedings or otherwise, SUBLESSEE agrees that:
a. The Base Rent, and Additional Rent, and all other charges required
to be paid by SUBLESSEE hereunder shall thereupon become due and be paid up
to the time of such termination, re-entry or dispossession, and SUBLESSEE
shall also pay to SUBLESSOR all reasonable expenses, reasonable attorneys'
fees, brokerage commissions, and all other costs paid or incurred by
SUBLESSOR for restoring the DEMISED PREMISES to good order and condition
and for altering and otherwise preparing the same for reletting;
b. SUBLESSOR may, at any time and from time to time, resublet the
DEMISED PREMISES, in whole or in part, either in its own name or as agent
of SUBLESSEE, for a term or terms which, at SUBLESSOR'S option, may be for
the remainder of the then current term of this Sublease, or for any longer
or shorter period;
c. SUBLESSEE shall be obligated to and hereby agrees to pay to
SUBLESSOR, upon demand, and SUBLESSOR shall be entitled to
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recover from SUBLESSEE, damages in an amount equal to the excess, if any,
of all Base Rent, Additional Rent, and other charges and items as would be
required hereunder to be paid by SUBLESSEE for each calendar month had this
Sublease and the term not been terminated, or had SUBLESSOR not so
re-entered, over the rents, if any, collected by SUBLESSOR in respect of
such calendar month pursuant to any re-subletting. Said damages shall be
payable by SUBLESSEE to SUBLESSOR in monthly installments in the same
manner as Base Rent hereunder, and any suit or action brought to collect
the amount of the deficiency for any month shall not prejudice in any way
the rights of SUBLESSOR to collect the deficiency for any subsequent month
by a similar proceeding; and
d. If the Sublease shall terminate by reason of the occurrence of any
default of SUBLESSEE, SUBLESSOR shall at its option and election be
entitled, notwithstanding any other provision of this Sublease, or any
present or future law, to recover from SUBLESSEE or SUBLESSEE's estate, as
damages for loss of the bargain and not as a penalty, a lump sum which at
the time of such termination of this Lease equals the then present worth of
the Basic Rent, such lump sum being discounted to the date of termination
at the rate of six (6%) percent per annum, or the maximum amount which may
be allowed by statute or rule of law, whichever is less.
e. If the statute or rule of law governing SUBLESSOR'S claim for
damages shall limit the amount of such claim capable of being so proved and
allowed, SUBLESSOR shall be entitled to prove
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as and for liquidated damages and have allowed an amount equal to the
maximum allowed by or under such statute or rule of law.
5.3 In connection with any reletting, SUBLESSOR, at its option, may make
alterations, repairs and/or decorations which shall not operate or be construed
to release SUBLESSEE from liability hereunder. SUBLESSOR shall in no event be
liable in any way whatsoever for failure to relet the DEMISED PREMISES, or in
the event that the DEMISED PREMISES are relet, for failure to collect rent
thereof under such reletting, and in no event shall SUBLESSEE be entitled to
receive any excess of such annual rents over the sums payable By SUBLESSEE to
SUBLESSOR hereunder. Suit(s) for the recovery of such damages, or for any
installments thereof, may be brought by SUBLESSOR from time to time at its
election. Nothing herein contained shall be deemed to require SUBLESSOR to
postpone suit until the date when the term would have expired if it had not been
terminated under the provisions of this Sublease, or under any provision of law,
or had SUBLESSOR not re-entered into or upon the DEMISED PREMISES.
5.4 SUBLESSEE, for itself and any and all others claiming through or under
SUBLESSEE, including but not limited to its creditors, upon the termination of
this Sublease and the term in accordance with the terms hereof, or in the event
of entry of judgment for the recovery of possession of the DEMISED PREMISES, by
process of law or otherwise, hereby waives any right or redemption provided or
permitted by any statute, law or decision now or hereafter in force, and does
hereby waive, surrender and give up
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all rights and privileges which it or they may or might have under and by reason
of any present or future law or decision, to redeem the DEMISED PREMISES or for
a continuation of this Sublease after having been dispossessed or ejected
therefrom by process of law, or otherwise. SUBLESSEE waives all right to trial
by jury in any action or summary or other judicial proceeding hereafter
instituted by SUBLESSOR or OWNER against SUBLESSEE in respect to the DEMISED
PREMISES.
5.5 The word "re-entry" as used herein is not restricted to its technical
legal meaning.
ARTICLE VI. DECLARATION
6.0 SUBLESSEE shall within five (5) days of written request by SUBLESSOR or
OWNER, execute and deliver to SUBLESSOR or OWNER as the case may be a written
declaration in recordable form:
a. Ratifying this Sublease;
b. Expressing the commencement and termination dates thereof;
c. Certifying that this Sublease is in full force and effect and has not
been assigned, modified, supplemented or amended, except by such writings as
shall be stated;
d. That all conditions under this Sublease to be performed by SUBLESSOR
have been satisfied;
e. That there are no defenses or offsets against the enforcement of this
Sublease by SUBLESSOR or stating those claimed by SUBLESSEE;
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f. The amount of advance rental, if any, (or none if such is the case) paid
by the SUBLESSEE;
g. The date to which the rental has been paid; and
h. The amount of Twenty Four Thousand ($24,000) Dollars security which has
been deposited with SUBLESSOR.
Said declaration shall be executed and delivered by SUBLESSEE from time to
time as may be requested by SUBLESSOR or OWNER.
ARTICLE VII. ADDITIONAL RENT
7.0 In addition to the base rent, all other payments to be made by
SUBLESSEE shall be deemed to be and shall become additional rent hereunder
whether or not the same be designated as such; and shall be due and payable on
demand or together with the next succeeding installment of rent, whichever shall
first occur unless expressly set forth herein to the contrary; and SUBLESSOR
shall have the same remedies for failure to pay the same as for a nonpayment of
base rent. SUBLESSOR, at its election, shall have the right to pay or to do any
act which requires the expenditure of any sums of money by reason of the failure
or neglect of SUBLESSEE to perform any of the provisions of this Sublease, and
in the event SUBLESSOR shall at its election pay such sums or do such acts
requiring the expenditure of monies, SUBLESSEE agrees to pay SUBLESSOR, upon
demand, all such sums and the sums so paid by the SUBLESSOR together with the
interest thereon, shall be deemed additional rent and be payable as such.
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ARTICLE VIII. MECHANIC'S LIENS
8.0 SUBLESSEE shall not permit any mechanic's lien to be filed against the
fee of the LEASED PREMISES or against the SUBLESSEE'S leasehold interest in the
DEMISED PREMISES by reason of work, labor, services, or materials supplied or
claimed to have been supplied, whether prior or subsequent to the commencement
of the term hereof, to SUBLESSEE or anyone holding the DEMISED PREMISES.
SUBLESSEE shall, within ten (10) days after notice of the filing thereof, cause
such lien to be discharged of record by payment, deposit, bond, order of a court
of competent jurisdiction, or otherwise. If SUBLESSEE shall fail to cause such
lien to be discharged within such ten (10) day period, then, in addition to any
other right or remedy of SUBLESSOR, or OWNER, SUBLESSOR may, but shall not be
obligated to, discharge such lien either by paying the amount claimed to be due
or by procuring the discharge of such lien by deposit or by bonding proceedings,
and in any such event SUBLESSOR shall be entitled, if SUBLESSOR so elects, to
compel the prosecution of an action for the foreclosure of such mechanic's lien
by the lienor and to pay the amount of the judgment for and in favor of the
lienor, with interest, costs, and all other allowances. Any amount paid by
SUBLESSOR for any of such purposes, with interest thereon at the rate of 15% per
annum from the date of payment or deposit, shall be repaid by the SUBLESSEE to
SUBLESSOR on demand, and if unpaid may be treated as additional rent as provided
for elsewhere in this Sublease. Nothing in this Sublease shall be construed in
any way as constituting the consent or
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request of the SUBLESSOR, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration, or repair of or the Subleased property or as giving SUBLESSEE the
right, power, or authority to contract for or permit the rendering of any
service or the furnishing of any material that would give rise to the filing of
any mechanic's lien against the fee of the DEMISED PREMISES or the building.
ARTICLE IX. INDEMNIFICATION, RISK AND LIABILITY
9.0 OWNER and SUBLESSOR shall not be liable in the event of any
interruption in the supply of any utilities.
9.1 SUBLESSEE shall indemnify SUBLESSOR and OWNER and save it and them
harmless from suits, actions, damages, liability and expense in connection with
loss of life, bodily or personal injury or property damage arising from the
occupancy or use by SUBLESSEE of said DEMISED PREMISES or any part thereof,
including, without limitation, the sidewalks, parking lots and common areas and
facilities within the building of which the DEMISED PREMISES are a part, or
occasioned wholly or in part by any act or omission of SUBLESSEE, its agents,
contractors, employees, servants, invitees, or licensees.
9.3 SUBLESSOR and OWNER shall not be responsible or liable at any time for
any loss or damage to SUBLESSEE'S equipment or fixtures, or other personal
property of SUBLESSEE.
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9.4 SUBLESSOR and OWNER shall not be responsible or liable for any defect,
latent or otherwise, in any portion of the building of which the DEMISED
PREMISES are a part or any of the equipment, machinery, utilities, appliances or
apparatus therein, nor shall it be responsible or liable for any injury, loss or
damage to any person or to any property of SUBLESSEE or other person caused by
or resulting from pipes bursting or breaking, or by or from leakage or by or
from steam, snow or ice, running, backing up, or seeping, or the overflow of
water or sewage in any part of said DEMISED PREMISES or for any injury or damage
caused by or resulting from any defect in the occupancy, construction, operation
or use of any of said premises, building, machinery, apparatus or equipment by
any person or by or from the acts or negligence of any other occupant of the
LEASED PREMISES.
9.5 In case SUBLESSOR and/or OWNER shall without fault on its or their part
be made a party to any litigation commenced by or against SUBLESSEE, then
SUBLESSEE shall indemnify, protect and hold SUBLESSOR and OWNER harmless and
shall pay all costs, expenses and reasonable attorney's fees of SUBLESSEE and
OWNER upon demand.
ARTICLE X. MAINTENANCE OF PREMISES
10.0 Upon completion of partition construction in accordance with paragraph
3.0 hereof, SUBLESSEE accepts the DEMISED PREMISES in their "as is" condition
and SUBLESSEE, at its expense, shall be responsible for maintaining and
repairing the DEMISED PREMISES, except structural repairs and replacements and
building system repairs and replacements and shall clean and take good care of
the
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DEMISED PREMISES. SUBLESSEE, at its expense shall also maintain, clean and
repair the DEMISED PREMISES and the Building, as shall be required by reason of
the installation, use or operation of SUBLESSEE's Property in the Premises, the
moving of SUBLESSEE's Property in or out of the Building, or the misuse or
neglect of the DEMISED PREMISES or Building by SUBLESSEE or any of its
employees, agents or contractors.
ARTICLE XI. INSURANCE
11.0 SUBLESSEE shall maintain at its own cost and expense public liability
insurance on an occurrence basis with minimum limits of liability in an amount
of_____ Million ($_,000,000.00) Dollars for bodily injury, personal injury or
death to any one person and _____ Million ($_,000,000.00) Dollars for bodily
injury, personal injury or death to more than one person and _____ Million
($___,000,000.00) Dollars with respect to damage to property by water or
otherwise. Furthermore, SUBLESSEE shall name SUBLESSOR and OWNER as additional
insureds on said policy and furnish SUBLESSOR and OWNER with copies of said
policy prior to the commencement of this Sublease and furnish copies of renewal
policies to the SUBLESSOR and OWNER. SUBLESSEE shall also maintain at its own
cost and expense fire and extended coverage, vandalism, malicious mischief and
special extended coverage insurance in an amount, which in SUBLESSOR's
reasonable opinion is adequate to cover the cost of replacement of all personal
property, decorations, trade fixtures, furnishings, equipment and all contents
in the premises and workers compensation insurance
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covering all persons employed by SUBLESSEE or as required by law.
11.1 Any insurance procured by SUBLESSEE as herein required shall be issued
in the State of New York and shall contain endorsements that:
a. Such insurance may not be canceled or amended without ten (10) days'
written notice by certified mail to SUBLESSOR and OWNER by the insurance
company;
b. SUBLESSEE shall be solely responsible for payment of premiums and
SUBLESSOR and OWNER shall not be required to pay any premiums for such
insurance; and
c. Neither OWNER or SUBLESSOR shall not be liable for any damage for fire,
casualty or other peril includable in any insurance policy maintained or
required to be maintained by SUBLESSEE, no matter how caused, it being
understood that the SUBLESSEE will look solely to its insurer for reimbursement.
SUBLESSEE shall obtain a waiver of subrogation clause in such insurance policy
or policies and deliver SUBLESSOR evidence and OWNER that such waiver of
subrogation clause has been included in its insurance policy or policies.
ARTICLE XII. SURRENDER OF PREMISES
12.0 At the expiration of this Sublease, SUBLESSEE shall surrender the
DEMISED PREMISES in the same condition it was upon delivery of possession
thereto under this Sublease, including all additions, alterations, and
improvements made by SUBLESSEE, except as is otherwise set forth herein.
SUBLESSEE'S obligations to perform shall survive the end of the term of this
Sublease. If
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SUBLESSEE fails to remove its personal property upon the expiration of this
Sublease, the property shall be deemed abandoned and shall become the property
of the SUBLESSOR.
ARTICLE XIII. SUBORDINATION AND ATTORNMENT
13.0 This Sublease and all rights of SUBLESSEE hereunder are subject and
subordinate to the MASTER LEASE and to all ground and/or underlying Leases and
to all trust indentures and mortgages, blanket or otherwise, which do now or may
hereafter affect the same or the real property of which the DEMISED PREMISES
form a part (and which may also affect other property) and to any and all
renewals, modifications, consolidations, replacements and extensions thereof. It
is the intention of the parties that this provision by self-operative and that
no further instrument shall be required to effect such subordination of this
Sublease. SUBLESSEE shall, however, upon demand at any time or times, promptly
execute, acknowledge and deliver to SUBLESSOR or OWNER, without expense to
SUBLESSOR or OWNER, any and all instruments that may be necessary or proper to
subordinate this Sublease and all rights of SUBLESSEE hereunder to any such
Leases, indentures, and/or mortgages or to confirm or evidence said
subordination, and in the event that SUBLESSEE shall fail or neglect so to
execute, acknowledge and deliver any such subordination instrument or
certificate, SUBLESSOR or OWNER, in addition to any other remedies may, as the
agent or attorney-in-fact of SUBLESSEE, execute, acknowledge and deliver the
same and SUBLESSEE hereby irrevocably nominates, constitutes and appoints
SUBLESSOR or OWNER or SUBLESSOR'S or OWNER's designee as
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SUBLESSEE's proper and legal attorney-in-fact for such purpose. SUBLESSEE
covenants and agrees, in the event any proceedings are brought for the
foreclosure of any such mortgage, to attorn to the purchaser upon any such
foreclosure sale and to recognize such purchaser as the SUBLESSOR under this
Sublease or, in the event of the termination, for any reason whatsoever, of any
such underlying Lease above referred to, that SUBLESSEE will attorn to and
recognize such holder as the then SUBLESSOR under this Sublease to the same
extent and effect as the original SUBLESSOR hereunder. SUBLESSEE agrees to
execute and deliver at any time and from time to time, upon the request of
SUBLESSOR, or OWNER or any such holder, any instrument which, in the sole
judgment of SUBLESSOR or OWNER may be necessary or appropriate in any of such
events to evidence such attornment. SUBLESSEE hereby appoints SUBLESSOR or OWNER
or SUBLESSOR's designee, or OWNER's designee, such reversioner, and the holder
of such mortgage, or any of them, as the circumstances may require, the
attorney-in-fact, irrevocably, of SUBLESSEE to execute and deliver for and on
behalf of SUBLESSEE any such instrument.
13.1 SUBLESSEE agrees that if by reason of default on the part of SUBLESSOR
or OWNER herein, under any ground or underlying Lease or any mortgage if the
underlying OWNER or mortgagee shall enter into and become possessed of the real
property of which the DEMISED PREMISES form a part, or any part or parts of
which real property, either through possession or foreclosure action or
proceedings, or otherwise, then if this Sublease is in full force
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and effect at such time, SUBLESSEE shall attorn to OWNER or mortgagee as its
landlord; and in such event, OWNER or mortgagee shall not be liable to SUBLESSEE
for any defaults theretofore committed by SUBLESSOR and no such default shall
give rise to any rights of offset or deduction against the rents payable under
this Sublease.
The provisions for attornment hereinbefore set forth shall not require the
execution of any further instrument. However, if such OWNER or mortgagee to
which SUBLESSEE agrees to attorn, as aforesaid, reasonably requests a further
instrument expressing such attornment, and SUBLESSEE fails to do so, SUBLESSEE
hereby appoints SUBLESSOR or OWNER, or SUBLESSOR's designee or OWNER's designee
as Lessee's attorney-in-fact to execute any such instrument for and on behalf of
SUBLESSEE.
ARTICLE XIV. SECURITY DEPOSIT
14.0 SUBLESSEE has deposited with SUBLESSOR the sum of Twenty Four Thousand
($24,000) DOLLARS receipt of which is hereby acknowledged. Said deposit shall be
held by SUBLESSOR, in a separate interest bearing bank account as security for
the faithful performance by SUBLESSEE of all the terms of this Sublease by said
SUBLESSEE to be observed and performed. The security deposit shall not be
mortgaged, assigned, transferred or encumbered by SUBLESSEE without the written
consent of SUBLESSOR and any such act on the part of SUBLESSEE shall be without
force and effect and shall not be binding upon SUBLESSOR. SUBLESSOR shall notify
SUBLESSEE of the location of said bank account. The bank account
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shall be opened using SUBLESSEE's Federal Tax I.D Number.
14.1 If any of the rents herein reserved or any other sum payable by
SUBLESSEE to SUBLESSOR shall be overdue and unpaid or should SUBLESSOR make
payments on behalf of SUBLESSEE, or SUBLESSEE should fail to perform any of the
terms of this Sublease, then SUBLESSOR may, at its option and without prejudice
to any other remedy which SUBLESSOR may have on account thereof, appropriate and
apply said entire deposit or so much thereof as may be necessary to compensate
SUBLESSOR toward the payment of rent or additional rent for loss or damage
sustained by SUBLESSOR due to such breach on the part of SUBLESSEE; and
SUBLESSEE shall forthwith upon demand restore said security to the original sum
deposited. Should SUBLESSEE comply with all of said terms and promptly pay all
of the said rentals as they fall due and all other sums payable by SUBLESSEE to
SUBLESSOR, said deposit shall be returned in full with interest earned thereupon
to SUBLESSEE at the end of the term.
14.2 In the event of bankruptcy or other credit-debtor proceedings against
SUBLESSEE, all securities shall be deemed to be applied first to the payment of
rent and other charges due SUBLESSOR for all periods prior to the filing of such
proceedings.
ARTICLE XV. NOTICES
15. Any notice, demand, request or other instrument which may be or is
required to be given under this Sublease shall be delivered in person or sent by
overnight delivery by a nationally recognized carrier, and shall be addressed as
follows:
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To SUBLESSOR: TWIN COUNTY GROCERS, INC.
000 XXXXXXXX XXXX
XXXXXX, XXX XXXXXX 00000
and SUBLESSOR'S Attorney: XXXXXXXX X. XXXXXX
00 XXXXXXXXXX XXXXXX XXXXX
XXXXX 000, XXX 00
WOODBRIDGE, NEW JERSEY 07095
To SUBLESSEE: SOLUCORP [ILLEGIBLE]
000 XXXX XXXXX XXXX
XXXX XXXXX, XXX XXXX 00000
and SUBLESSEE'S Attorney: XXXXX XXXXXX, ESQ.
000 XXXXX XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
To OWNER: XXXX XXXXXX
00 XXXXXXX XXXX
XXX XXXX, XXX XXXX 00000
XXXXXX XXXXXXXXX
000 XXXXXXXX XXXX XXXX
XXX XXXX, XXX XXXX 00000
and OWNER's Attorney XXXXXXXX & XXXXXXXXXXX, ESQS.
000 XXXXX XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
Either party may designate such other addresses as shall be given by
written notice.
ARTICLE XVI. MEMORANDUM OF SUBLEASE
16.0 SUBLESSEE shall not record this Sublease or a memorandum thereof.
ARTICLE XVII. LACK OF PARTNERSHIP OR ASSOCIATION
17.0 SUBLESSOR and OWNER shall in no event be construed, held or become in
any way or for any purpose a partner or associate of SUBLESSEE or any party
associated with SUBLESSEE in the conduct of its business or otherwise.
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ARTICLE XVIII. NO BROKER
18.0 SUBLESSEE warrants and represents that he has not dealt with any
broker in connection with this sublease. SUBLESSEE agrees to hold SUBLESSOR and
OWNER harmless from all liabilities arising from any claim for brokerage
commissions, including attorney's fees.
ARTICLE XIX. ATTORNEYS FEES
19.0 In the event that it shall become necessary for SUBLESSOR and/or OWNER
to employ the services of an attorney to enforce any of its or their rights
under this Sublease or to collect any sums due under this sublease or to remedy
the breach of any covenant of this sublease on the part of the SUBLESSEE to be
kept or performed, regardless of whether suit be brought, SUBLESSEE shall pay to
SUBLESSOR and/or OWNER as the case may be such reasonable fees and expenses as
shall be charged by SUBLESSOR'S and OWNER's attorneys for such services. Should
suit be brought for the recovery of possession of the SUBLESSEE'S interests in
the DEMISED PREMISES, or for rent or any other sum due under this Sublease,
SUBLESSEE shall pay to SUBLESSOR all expenses of such suit and any appeal
thereof, including reasonable attorney's fees and expenses.
ARTICLE XX. NO ALTERATIONS
20.0 SUBLESSEE shall not make any alterations, additions or improvements to
the DEMISED PREMISES without SUBLESSOR'S and OWNER'S prior written consent which
SUBLESSOR and OWNER may give or withhold at its and their sole discretion.
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ARTICLE XXI. SIGNS
21.0 SUBLESSEE shall not place any signs on LEASED PREMISES or the DEMISED
PREMISES except for one (1) sign on one of the two existing monuments located on
the LEASED PREMISES. Said sign shall be of the same style, material, color and
type as presently appears on the other existing monument upon which a sign is
installed.
ARTICLE XXII. HOLDOVER
22.0 If SUBLESSEE continues occupancy of the DEMISED PREMISES after the
expiration of the term or any extended term, such occupancy shall be deemed a
tenancy from month to month upon the terms, covenants, conditions and rental
rate, plus twenty-five (25%) percent, in effect upon the expiration of the term.
The provisions of this Article shall not be construed to relieve SUBLESSEE from
liability to SUBLESSOR for damages resulting from any such holdover.
ARTICLE XXIII. PARKING
23.0 SUBLESSOR shall designate 19 parking spaces for use by SUBLESSEE, its
employees and guests.
ARTICLE XXIV. ENTIRE AGREEMENT
24.0 This sublease sets forth the entire agreement between the parties. Any
prior conversations or writings are merged herein and extinguished. No
subsequent amendment to this sublease shall be binding upon SUBLESSOR or
SUBLESSEE unless reduced to writing, signed and approved in writing by OWNER.
Submission of this sublease for examination does not constitute any option for
the DEMISED PREMISES and becomes effective as a Sublease only upon
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execution and delivery thereof by SUBLESSOR to SUBLESSEE.
ARTICLE XXV. COVENANTS BINDING ON RESPECTIVE PARTIES
25.0 The terms, conditions, covenants, provisions and undertakings herein
contained shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
ARTICLE XXVI. VALIDITY/PARTIAL INVALIDITY
26.0 If any term or provision of this Agreement or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE XXVII. RIGHTS LIMITED BY THE MASTER LEASE
27.0 Notwithstanding anything herein contained, the only services or rights
to which SUBLESSEE is entitled hereunder are those to which SUBLESSOR is
entitled under the Master Lease.
ARTICLE XXVIII. SUBLESSEE OBLIGATIONS TO COMPLY WITH MASTER LEASE
28.0 SUBLESSEE shall neither do nor permit anything to be done which would
cause the Master Lease to be terminated or forfeited by reason of any right of
termination or forfeiture reserved or vested in the lessor under the Master
Lease, and the SUBLESSEE shall indemnify and hold SUBLESSOR harmless from and
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against all claims of any kind whatsoever by reason of any breach or default on
the part of SUBLESSEE by reason of which the Master Lease may be terminated or
forfeited.
ARTICLE XXIX. AGENT FOR SERVICE
29.0 SUBLESSEE designates XXXXX XXXXXX, ESQUIRE, 000 XXXXX XXXX XXXXXX, XXX
XXXX, XXX XXXX 00000, as its agent for service of process.
IN WITNESS WHEREOF, the parties hereto have signed this agreement the day
and year first above written.
Dated: West Nyack, New York
Twin County Grocers, Inc.
BY:
--------------------------------
Solucorp
BY:
--------------------------------
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