SUBLEASE
THIS SUBLEASE AGREEMENT (the "Sublease") made on this_____ day of August,
1996, between Liuski International, Inc., a Delaware corporation ("Sublandlord")
and E&F Warehousing Corp., a New York corporation ("Subtenant").
W I T N E S S E T H:
WHEREAS, regarding the space currently occupied by Sublandlord in the
building known as 10 Hub Drive, Melville, New York (the "Building"), Sublandlord
and Reckson Associates ("Landlord") entered into an Agreement of Lease dated
April 12, 1990, as amended by that certain Lease Modification Agreement, dated
April 8, 1994, as amended by that certain Second Lease Modification and
Extension Agreement, dated February 25, 1995 (the "Lease") for the lease of
certain space in the Building, and Sublandlord assumed the tenants interest in
the lease, dated June 7, 1990, between Joe Montgomery Delivery Service, Inc. and
Landlord, pursuant to that certain Assignment and Assumption of Lease, dated
April 7, 1994, by and between Sublandlord and Joe Montgomery Delivery Service,
Inc., as modified by that certain Lease Modification and Extension Agreement,
dated February, I995, and that certain Second Lease Modification and Extension
Agreement, dated February 25, 1995, for the lease of additional space in the
Building; and
WHEREAS, on or before the date hereof Landlord has granted its prior
written consent to Sublandlord to the making and entering into of this Sublease
in accordance with the requirements of Section 17 of the Lease; and
WHEREAS, Sublandlord and Subtenant desire to enter into this Sublease.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter contained, Sublandlord and Subtenant agree as follows:
1. Premises. Sublandlord leases to Subtenant, and Subtenant leases and
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rents from Sublandlord, 16,650 square feet of warehouse space in the Building,
as more particularly described on Exhibit A which is attached hereto and
incorporated herein by this reference, together with all easements and rights
appurtenant thereto, all of Sublandlord's right, title and interest in and to
all public and private ways adjoining the same, and all buildings as well as all
equipment, fixtures and other improvements located thereon (all of which are
hereinafter referred to collectively as the "Premises").
It is hereby acknowledged and agreed to by Sublandlord and Subtenant that:
(a) the Premises is being subleased by Sublandlord to Subtenant, and has been
accepted by Subtenant, in its present, "AS IS" condition, without any
representation or warranty, whether express or implied, as to the condition
thereof or as to the fitness thereof for Subtenant's use; it being hereby
stipulated by Subtenant that it has made (or had the opportunity to make) any
and all such inspections, examinations, analyses, tours and walk-throughs as it
has deemed necessary or appropriate in determining to sublease the Premises and
to accept delivery of same; and (b) SublandIord does not have, has not assumed,
and does not hereby assume any obligations, liabilities or responsibilities of
Landlord under the Lease; it being hereby stipulated by Subtenant that it shall
look solely to Landlord for the performance of such obligations and
responsibilities.
It is further hereby acknowledged and confirmed by Sublandlord and
Subtenant that this Sublease is subject, in all respects, to the terms and
conditions of the Lease, a copy of which has been provided to Subtenant.
Subtenant hereby confirms that a copy of the Lease has been provided to it, and
hereby agrees to keep, observe and perform any and all of the terms and
conditions of the Lease which are to be kept, observed and performed by the
"Tenant" thereunder which pertain to the use, occupancy and/or condition of the
Premises.
Subtenant hereby covenants and agrees not to perform any act, omit to
perform any act, or do anything which constitutes a default by the "Tenant"
under the Lease, or which would, with the giving of any applicable notice and
the expiration of any applicable cure period, or both, constitute a default by
the "Tenant" thereunder.
2. Term. The term ("Term") of this Sublease shall begin on August 12, 1996
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and shall expire at 12:00 midnight on July 31, 1998 unless sooner terminated in
accordance with the terms and conditions hereof. Additionally, and
notwithstanding any language herein to the contrary, in the event that
Sublandlord needs to expand into or vacate the Premises, Sublandlord shall have
the right, upon sixty (60) days' notice, to terminate this Sublease.
3. Use of the Premises. The Premises shall be used solely for the following
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purposes: storage of merchandise; and for no other purpose whatsoever, and for
all activities in connection therewith which are customary and usual to such an
operation, and no other. The Premises shall not be used for any illegal
purposes; nor in any manner to create any nuisance or trespass, nor in any
manner so as to violate or cause a default under the Lease on behalf of the
"Tenant" thereunder.
4. Rent. Subtenant shall pay to Sublandlord rent (the "Rent") in the amount
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of Six Thousand Two Hundred Forty-Three and 75/100 Dollars ($6,243.75) per
month. The Rent shall be payable in advance and is due and payable on or before
the first day of each month during the term hereof. Additionally, Subtenant
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shall pay to Sublandlord any monthly fees associated with any alarm systems of
Sublandlord used by Subtenant. The first installment of Rent shall be due and
payable on or before September 1, 1996.
Sublandlord shall not be responsible in any way for any interruption,
curtailment or failure or defect in the supply of electricity furnished to
Premises by reason of any requirement, act or omission of any public utility
company, or for any other reason.
Rent shall be paid by check mailed or delivered to Sublandlord, for its
receipt on or before the due date thereof, at 6585 Crescent Drive, Norcross,
Georgia 30071 -- Attn: Accounts Payable. If any payment of Rent or other amount
required to be paid by Subtenant to Sublandlord pursuant to this Sublease is not
paid when due, and if Subtenant does not cure such non-payment within five (5)
days after written notice from Sublandlord to Subtenant, the same shall be
considered past due for purposes hereof, and a late fee of Two Hundred Fifty and
No/100 Dollars ($250.00) shall be immediately due and payable by Subtenant. Said
past due Rent or other past due amounts shall bear interest from their
respective due dates at the rate of two percent (2%) per annum over the publicly
announced or published "prime" (or equivalent) rate of NationsBank, Atlanta,
Georgia (the "Default Rate"), until paid in full.
5. Insurance.
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(a) Subtenant at its sole cost and expense, shall keep and maintain all
insurance required to be kept and maintained by "Tenant" in accordance with
Section 12 of the Lease. On or before the date hereof, originals or copies of
the insurance policies, or certificate endorsements evidencing the same, bearing
the notations evidencing the payment of premiums, shall be delivered by
Subtenant to Sublandlord.
(b) All insurance provided for in this paragraph shall be effected under
valid and enforceable policies issued by insurers of recognized responsibility
that are licensed to do business in the State of New York.
(c) All policies of insurance provided for in this Section 5 shall name as
the insureds -- as their respective interests may appear -- each of Landlord,
Sublandlord, Subtenant, and the holder or holders (collectively, the "Holder"),
of any deed to secure debt, mortgage, or other security instrument covering the
Premises and/or the Building (collectively, a "Security Deed"). Each such policy
shall contain a provision that no act or omission of Subtenant shall affect or
limit the obligation of the insurance company to pay to Landlord, Sublandlord
and Holder, as their respective interests may appear, the amount of any loss
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sustained, and shall contain an agreement by the insurer that such policy shall
not be canceled without at least thirty days prior written notice to Landlord
and Sublandlord. Each such policy shall also waive, or permit the waiver of, any
and all rights of subrogation by any such insurer as against Sublandlord,
Landlord and/or Holder, such fights being hereby waived in full.
6. Repairs. Alterations and Removal Thereof by Subtenant. Throughout the
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term of this Sublease, Subtenant will at its own expense comply with the terms
and conditions of the Lease, including without limitation all terms pertaining
to repairs, alterations and improvements made by it as Subtenant, in its
capacity as the "Tenant" under the Lease, and the removal thereof by the Tenant,
and all other obligations of Sublandlord, as "Tenant" under the Lease, to
surrender the Premises upon expiration or termination of the term of the Lease
in the condition required under the Lease; provided, however, as between
Sublandlord and Subtenant it is agreed that Subtenant shall not be liable or
responsible for the removal of any alteration, addition or improvement made by
Sublandlord, in its capacity as "Tenant" under the Lease, prior to the date
hereof, or for the restoration of the Premises as a result of the removal of
such pre-existing alterations, additions or improvements.
7. Indemnity and Hold Harmless. Subtenant shall indemnify, defend and hold
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harmless Sublandlord and Landlord, at Subtenant's expense, from and against: (a)
any default by Subtenant hereunder; (b) any act of negligence, or wilful
misconduct of Subtenant or its agents, contractors, employees, invitees or
licensees; and (c) all claims for damages to persons or property by reason of
the use or occupancy of the Premises unless resulting from the wilful misconduct
or affirmative acts of gross negligence of Landlord or Sublandlord, or their
respective agents, employees or representatives. Neither Landlord nor
Sublandlord shall be liable for any damage or injury to the Premises, to
Subtenant's property, to Subtenant, its agents, contractors, employees,
representatives, invitees or licensees, arising from any use or condition of the
Premises, or any sidewalk or entranceway serving the Building or the Premises,
or the malfunction of any equipment or apparatus serving the Premises. Any and
all claims for any damages referred to in this Section 7 are hereby waived by
Subtenant.
8. Damage or Destruction. If any improvement on the Premises shall be
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damaged or partially or totally destroyed by fire, or other casualty or
otherwise, Subtenant shall promptly notify both Landlord and Sublandlord, and
the terms and conditions of the Lease pertaining thereto shall govern and
control. Subtenant hereby acknowledges that Sublandlord shall have no obligation
or duty to repair the Premises, and that the repair thereof by Landlord (if any)
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shall be governed by the terms and conditions of the Lease, including without
limitation Section 13 thereof.
9. Condemnation. In the event that the Premises, or any part thereof, are
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taken or condemned for a public or quasi-public use, the terms and conditions of
the Lease pertaining thereto, including without limitation Section 16 thereof,
shall govern and control.
10. Default. Upon the occurrence, at any time prior to or during the term
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of this Sublease, of any one or more of the following events ("Events of
Default"), a default shall have occurred hereunder:
(a) if Subtenant shall default in the payment when due of any installment
of rent or in the payment when due of any additional monetary obligations and
shall fail to remedy such default within five (5) days after notice by
Sublandlord to Subtenant of such default is received (or deemed received) by
Subtenant; or
(b) if Subtenant shall default in the observance or performance of any
term, covenant or condition of this Sublease on Subtenant's part to be observed
or performed (other than the covenants for the payment of Rent and any
additional monetary obligations), and Subtenant shall fail to remedy such
default within seven (7) days after notice by Sublandlord to Subtenant of such
default is received (or deemed received) by Subtenant, or if such default is of
such a nature that it cannot be completely remedied within said seven (7) days,
if Subtenant shall not commence within said seven (7) days, or shall not
diligently prosecute to completion, all steps necessary to remedy such default;
or
(c) if the Premises shall become vacant, deserted or abandoned: or
(d) if Subtenant shall do any act or thing, or fail to do any act or thing,
and thereby cause Sublandlord to breach any term or condition of the Lease; or
(e) if Subtenant's interest in this Sublease and/or in the Premises shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted by the Lease.
Upon the occurrence of any one or more of such Events of Default,
Sublandlord, at any time thereafter, may, at its option:
(I) give to Subtenant ten (10) days' notice of termination of this
Sublease and, in the event such notice is given, this Sublease and the Term of
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this Sublease shall come to an end and expire upon the expiration of said ten
(10) days with the same effect as if the date of expiration of said ten (10)
days were the expiration date of this Sublease, but Subtenant shall remain
liable for damages as herein provided. Upon such termination by Sublandlord,
Subtenant shall at once surrender possession of the Premises to Sublandlord and
remove all of Subtenant's effects therefrom and Sublandlord may forthwith
re-enter the Premises and repossess itself thereof, and remove all persons and
effects therefrom, using such force as may be necessary without being guilty of
trespass, forcible entry or detainer or other tort; or
(II) remedy such default for the account and at the expense of
Subtenant without thereby waiving such default; and if Sublandlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith including, but not limited to, reasonable attorneys' fees and
disbursements in instituting prosecuting or defending any action or proceedings,
such sums paid or obligations incurred, and all costs and expenses, together
with interest at the Default Rate, shall be deemed to be additional rent
hereunder and shall be paid by Subtenant to Sublandlord within five (5) days of
rendition of any bill or statement to Subtenant therefor; or
(III) in addition to an not in lieu of Sublandlord's foregoing fights,
Sublandlord may, at its option as Subtenant's agent, without termination of this
Sublease, enter upon and rent the Premises at the best price obtainable by
reasonable effort, with or without advertisement, and by private negotiations,
and for any term Sublandlord deems proper, whereupon Subtenant shall have no
right to reenter or occupy the Premises. Subtenant shall be liable to
Sublandlord for the deficiency, if any, between all rents and other monetary
obligations reserved hereunder and the total rental and other monetary payments
applicable to the term obtained by Sublandlord on reletting, after deducting
Sublandlord's expenses in restoring or altering the Premises and all costs and
expenses incident to such reletting, including without limitation reasonable
attorneys' fees and other legal costs, advertising costs and brokerage
commissions. The above described fights and remedies of Sublandlord are
cumulative, and are in addition to and not in limitation of any other rights and
remedies permitted by law or by this Sublease.
11. Non-Waiver. The receipt by Sublandlord of any installment of rent or of
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any other amounts due hereunder shall not be a waiver of any other additional
rent then due or of any breach of any covenant or condition hereof by Subtenant.
No payment by Subtenant or receipt by Sublandlord of a lesser amount than the
full amount of monthly Rent or other amounts due hereunder shall be deemed to be
other than on account of the earliest Rent or other mounts due hereunder, nor
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shall any endorsement or statement or any check or letter accompanying any
payment be deemed an accord and satisfaction and Sublandlord may accept any such
check or payment without prejudice to the Sublandlord's sight to recover any
balance due or pursue any other sight or remedy permitted by law or equity or by
this Sublease. The failure of either party to insist, in any one or more
instances, upon a strict performance of any of the covenants of this Sublease,
or to exercise any option herein contained, shall not be construed as a waiver,
or a relinquishment for the future, of such covenant or option, but the same
shall continue and remain in full force and effect and no waiver or modification
by a party of any provision hereof shall be deemed to have been made unless
expressed in writing signed by Sublandlord.
12. No Representations by Sublandlord. Sublandlord or Sublandlord's agents
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have made no representations, warranties, covenants or promises with respect to
the Premises or otherwise, except as herein expressly set forth, and have
assumed no obligations of Landlord, and no rights, easements or licenses are
acquired by Subtenant by implication or otherwise except as expressly set forth
herein. The taking of possession of the Premises by Subtenant shall be
conclusive evidence as against Subtenant that, at the time such possession was
so taken, the Premises were in good and satisfactory condition, this Sublease
being made entirely on an "AS IS" basis.
13. End of Term. Upon the expiration or earlier termination of the Term of
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this Sublease, Subtenant shall quit and surrender to Sublandlord the Premises
broom-clean, and in good order and condition, natural wear and tear excepted,
and subject to the Lease, Subtenant shall remove all of its property.
Subtenant's obligation to observe or perform this covenant shall survive the
expiration or earlier termination of such Term.
14. Notices. All notices hereunder shall be in writing and hand delivered
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or sent by certified mail, return receipt requested, addressed to Sublandlord at
6585 Crescent Drive, Norcross, Georgia 30071, and addressed to Subtenant at 50
Hub Drive, Melville, New York 11747, Attn: Larry Frisina. Sublandlord and
Subtenant may change such address by giving the other written notice of such
change of address in accordance with the provisions hereof. Notice given by
certified mail as hereinabove provided shall be deemed received by the party to
whom it is addressed on the second business day following the date on which said
notice is deposited in the mail.
15. Attorneys' Fees. In the event either party defaults in the performance
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of any of the provisions of this Sublease and the other party places the
enforcement of this Sublease, or any part thereof, in the hands of an attorney,
or files suit upon the same, or in the event either party shall make an
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unsuccessful claim against the other party for alleged breach of any provision
of this Sublease or for any other cause of action relating to or arising out of
this Sublease, and the other party shall incur legal fees in defense of said
claim, the defaulting or unsuccessful party agrees to pay the other party's
reasonable actual attorneys' fees, court costs and expenses.
16. Broker. Each party represents to the other that it has not dealt with
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any real estate broker, sales person, or finder in connection with this
Sublease, and no real estate broker initiated or participated in the negotiation
of this Sublease, or showed the Premises to Subtenant. Each party agrees to
indemnify and hold the other harmless from and against any liabilities and
claims for commissions and fees arising out of a breach of the foregoing
representation.
17. Successors and Assigns. The provisions of this Sublease shall inure to
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the benefit of and shall be binding upon the parties hereto and their respective
successors and permitted assigns.
18. Prior Discussion Amendments. This Sublease supersedes all prior
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discussions and agreements between the parties hereto with respect to the
Sublease of the Premises and all other matters contained herein and with respect
thereto. This Sublease may not be modified or amended unless such amendment is
set forth in writing signed by Subtenant and Sublandlord.
19. New York Law to Govern. This Sublease shall be governed by and
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construed and enforced in accordance with the laws of the State of New York. If
any of the provisions of this Sublease shall be held to be invalid, illegal, or
unenforceable for any reason, such circumstances shall not affect any other
provision. This Sublease shall be construed as if such invalid, illegal, or
unenforceable provision had never been herein.
20. Time. Time is and shall be of the essence of this Sublease.
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21. Assignment. This Sublease and Sublandlord's interest herein shall be
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assignable by Sublandlord to Landlord. Subtenant hereby acknowledges and agrees
that it may not assign this Sublease or sublet its interests in the Premises, or
permit or authorize any other person or party to occupy all or any portion of
the Premises, whether the same is done directly or indirectly, by operation of
law, merger, consolidation, reorganization, sale of general partners' interest,
sale of stock, or in any other method or manner.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals,
the day and year first above written.
SUBLANDLORD:
Liuski International, lnc.
By:
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Its:
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SUBTENANT:
E&&F Warehousing Corp.
By:
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Its:
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