Preview
FILED: KINGS COUNTY CLERK 08/15/2016
04/27/2017 05:28
09:35 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO.
Agreement 32 ("Agreement") dated as July
92 , 2011 between Lundy's Management RECEIVED
Corp. NYSCEF: 08/15/2016
04/27/2017
("Sublandlord"), and Cherry Hill Gourmet, Inc. ("Subtenant").
WITNES SETH:
WHEREAS Sublandlord and Subtenant entered into a Sublease dated as of August 1, 2007 (the
"Sublease") relating to certain premises (the "Original Sublease Premises") in a portion of the building at 1901
Emmons Avenue, Brooklyn, New York; and
WHEREAS Subtenant desires to sublease from Sublandlord additional premises described on Exhibit A
hereto (the "2d Floor Office Premises"; the Original Sublease Premises and the 2d Floor Office Premises being
called the "Aggregate Premises") in a portion of the building at 1901 Emmons Avenue, Brooklyn, New York,
on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Sublandlord and
Subtenant agree as follows:
1. Definitions
All capitalized terms that are used in this Agreement and are not defined shall have the same meaning as set
forth in the Sublease.
2. Sublease of 2d Floor Office Premises
2.1. 2d Floor Office Premises. Subject to Section 3.6 below, the Sublandlord hereby subleases the 2d
Floor Office Premises to the Subtenant, from and after August 1, 2011, and until the term temi of the
Sublease expires, on the same terms and conditions as apply to the Original Sublease Premises
pursuant to the Sublease, subject however to the provisions of this Agreement. All of the provisions
of the Sublease that apply to the Original Sublease Premises (called the "Sublease Premises" in the
Sublease) shall also apply to the 2d Floor Office Premises, subject however to the provisions of this
Agreement. In the event of any inconsistency between any provision of this Agreement and any
provision of the Sublease, then the provisions of this Agreement shall control.
2.2. Provisions not Incorporated. In addition to the other provisions of the Sublease that are modified by
the other provisions of this Agreement, Section 15 (Overlandlord Consent) shall not apply to the 2d
Floor Office Premises.
2.3. Office Use. Subtenant agrees to use the 2d Floor Office Premises only for office use.
3. Rent
3.1. RentRent
FromFromandandafter
after
August
August 1, 1,
2011,
2011,thetheSubtenant
Subtenantshall
shallpay
payBase
BaseRent
Rentwith
withrespect
respect to
to the
the 2d Floor
Office Premises at the Sublease Base Rental Rate (as defined below) multiplied by 1,813 rentable
square feet, which the parties hereto agree is the rentable square footage of the 2d Floor Office
Premises (and the parties acknowledge that the Sublease Premises Rentable Area is 1,813 rentable
FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017
square feet with respect to the 2d Floor Office Premises). The Subtenant shall also pay, from and
after August 1, 2011, Additional Rent with respect to the 2d Floor Office Premises, as provided in
the Sublease as amended by this Agreement, including, without limitation, the Subtenant's
Proportionate Share (as determined below), with respect to the 2d Floor Office Premises, of all
Expenses and Real Estate Taxes. Notwithstanding anything to the contrary in this Agreement, the
installment of Base Rent, for the month beginning on August 1, 2011, is due and payable on the date
of this Lease.
3.2. Sublease Base Rental Rate. The "Sublease Base Rental Rate" with respect to the 2d Floor Office
Premises shall be as follows:
Lease Year Sublease Base Rental Rate (with respect to the
2d Floor Office Premises)
August 1, 2011 to July 31, 2012 $20 per rentable square foot
Subsequent Lease Years (or portion thereof) Commencing August 1, 2012, the Sublease Base
during the term of this Agreement Rental Rate for each Lease Year commencing
after July 31, 2012 shall be the sum of 1) the
Sublease Base Rental Rate for the prior Lease
Year, plus 2) 3% of the Sublease Base Rental
Rate for the prior Lease Year, provided that the
Sublease Base Rental Rate during the Extension
Term with respect to the 2d Floor Office
Premises shall be determined in the same manner
as the Sublease Base Rental Rate during the
Extension Tenn is determined pursuant to the
Sublease with respect to the Original Sublease
Premises. For example, the Sublease Rental
Rate with respect to the 2d Floor Office Premises
during the Lease Year commencing August 1,
2012 shall be $20.60 per rentable square foot.
{10435960:9}
FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017
3.3. No Free Rent Period. The Subtenant shall not be entitled to any rights (pursuant to the second
sentence of Section 3.1 of the Sublease) with respect to either the 2d Floor Office Premises or the
Base Rent that is payable with respect thereto; and therefore the Subtenant shall not be entitled to
any free rent period.
3.4. Subtenant's Proportionate Share. The Subtenant's Proportionate Share shall be deemed to be 4.03%
per cent with respect to the 2d Floor Office Premises, subject to Section 3.14 of the Sublease.
3.5. Security Deposit. The Required Security Deposit Amount with respect to the 2d Floor Office
Premises is $20,000. The Subtenant agrees to pay the Required Security Deposit Amount to the
Sublandlord as follows: (1) $10,000 shall be paid to the Sublandlord on or before the date of this
Agreement, and (2) $10,000 shall be paid to the Sublandlord within two months of the date of this
Agreement.
3.6. Option to Extend. Section 16.9 of the Sublease shall apply to the 2d Floor Office Premises. The
"Extension Term Fair Market Rental Rate" (with respect to the 2d Floor Office Premises) shall be
calculated in the same manner as is provided in Paragraph 16.9 of the Sublease, provided that (1)
whenever Paragraph 16.9 of the Sublease refers to the "Sublease," this shall be deemed a reference to
this Agreement, and (2) whenever Paragraph 16.9 of the Sublease refers to the "Sublease Premises",
this shall be deemed to be a reference to the 2d Floor Office Premises, and (3) the "Extension Term
Fair Market Rental Rate" (with respect to the 2d Floor Office Premises) shall be the fair market
rental rate of the 2d Floor Office Premises for the Extension Term.
3.7. Lease Year. Each "Lease Year", for the purposes of this Agreement with respect to the 2d Floor
Office Premises, shall be the period beginning on August 1st and ending on the following July 31st
during the term of this Agreement as it may be extended, provided that no Lease Year shall extend
after the date of the expiration, termination, or cancellation of this Agreement.
4. Miscellaneous
4.1. Overlandlord. Subtenant agrees promptly to provide any financial or other information requested by
Overlandlord.
4.2. Effective Date. This Agreement shall not be binding on the Sublandord unless and until: (1) each
party to this Agreement has executed one or more paper counterparts of this Agreement and has
physically delivered at least one such counterpart to the other party hereto, and (2) the Sublandlord
has received all amounts that are payable to it on or before the date of this Agreement.
{10435960:9}
FILED:
09/26/2011 KINGS
MON COUNTY
15:22 FAX CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016
VI
UO05/007
005/00 7
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year
first above written.
Sublandlord Subtenant
Lundy's Management Corp. Cherry Hill Gourmet, Inc.
a New York corporation a New
New York
Yorkcorpora
corpor ion
• r
By: By:
Name: Steve
Name: StevePappas
Pappas / : David Isaev
Title: President itle:
Ale: President
President
Address for Notices: Address for Notices:
do Mr. Steve Pappas c/o David Isaev
lsaev
540 Atlantic Avenue, 5th Floor 2278-2284 86th Street
Brooklyn, New York 11217 Brooklyn, New York 11214
with a copy to: with a copy to:
Seelig &
Meister Seelig & Fein LLP Cozen O'Connor
140 E. 45th Street, 19th Floor 277 Park Avenue
New York, New York 10017 New York, New York 10172
Attn: Brook Boyd, Esq. Attn: Howard B. Hornstein, Esq.
Guarantor
The undersigned hereby confirms that (1) the Guaranty made as of August 1, 2007 by David Isaev lsaev to the
Sublandlord with respect to the Sublease (the "Guaranty") is in full force and effect, and (2) the Guaranty is
hereby made applicable to the obligations of the Subtenant under this Agreement, and therefore all obligations
of the Subtenant pursuant to this Agreement are included within the meaning of the "Guaranteed Obligations"
as defined
defined ;thetheGuaranty.
Guaranty.
saev
{10435960:9}
(10435960:9)
FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017
Exhibit A
Description of 2d Floor Office Premises
FILED:
09/26/2011 KINGS COUNTY
MON 13:05 FAX CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016
0006/006
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017
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Preview
FILED: KINGS COUNTY CLERK 08/15/2016 04/27/2017 05:28 09:35 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. Agreement 32 ("Agreement") dated as July 92 , 2011 between Lundy's Management RECEIVED Corp. NYSCEF: 08/15/2016 04/27/2017 ("Sublandlord"), and Cherry Hill Gourmet, Inc. ("Subtenant"). WITNES SETH: WHEREAS Sublandlord and Subtenant entered into a Sublease dated as of August 1, 2007 (the "Sublease") relating to certain premises (the "Original Sublease Premises") in a portion of the building at 1901 Emmons Avenue, Brooklyn, New York; and WHEREAS Subtenant desires to sublease from Sublandlord additional premises described on Exhibit A hereto (the "2d Floor Office Premises"; the Original Sublease Premises and the 2d Floor Office Premises being called the "Aggregate Premises") in a portion of the building at 1901 Emmons Avenue, Brooklyn, New York, on the terms and conditions contained herein; NOW, THEREFORE, in consideration of the mutual covenants herein contained, Sublandlord and Subtenant agree as follows: 1. Definitions All capitalized terms that are used in this Agreement and are not defined shall have the same meaning as set forth in the Sublease. 2. Sublease of 2d Floor Office Premises 2.1. 2d Floor Office Premises. Subject to Section 3.6 below, the Sublandlord hereby subleases the 2d Floor Office Premises to the Subtenant, from and after August 1, 2011, and until the term temi of the Sublease expires, on the same terms and conditions as apply to the Original Sublease Premises pursuant to the Sublease, subject however to the provisions of this Agreement. All of the provisions of the Sublease that apply to the Original Sublease Premises (called the "Sublease Premises" in the Sublease) shall also apply to the 2d Floor Office Premises, subject however to the provisions of this Agreement. In the event of any inconsistency between any provision of this Agreement and any provision of the Sublease, then the provisions of this Agreement shall control. 2.2. Provisions not Incorporated. In addition to the other provisions of the Sublease that are modified by the other provisions of this Agreement, Section 15 (Overlandlord Consent) shall not apply to the 2d Floor Office Premises. 2.3. Office Use. Subtenant agrees to use the 2d Floor Office Premises only for office use. 3. Rent 3.1. RentRent FromFromandandafter after August August 1, 1, 2011, 2011,thetheSubtenant Subtenantshall shallpay payBase BaseRent Rentwith withrespect respect to to the the 2d Floor Office Premises at the Sublease Base Rental Rate (as defined below) multiplied by 1,813 rentable square feet, which the parties hereto agree is the rentable square footage of the 2d Floor Office Premises (and the parties acknowledge that the Sublease Premises Rentable Area is 1,813 rentable FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017 square feet with respect to the 2d Floor Office Premises). The Subtenant shall also pay, from and after August 1, 2011, Additional Rent with respect to the 2d Floor Office Premises, as provided in the Sublease as amended by this Agreement, including, without limitation, the Subtenant's Proportionate Share (as determined below), with respect to the 2d Floor Office Premises, of all Expenses and Real Estate Taxes. Notwithstanding anything to the contrary in this Agreement, the installment of Base Rent, for the month beginning on August 1, 2011, is due and payable on the date of this Lease. 3.2. Sublease Base Rental Rate. The "Sublease Base Rental Rate" with respect to the 2d Floor Office Premises shall be as follows: Lease Year Sublease Base Rental Rate (with respect to the 2d Floor Office Premises) August 1, 2011 to July 31, 2012 $20 per rentable square foot Subsequent Lease Years (or portion thereof) Commencing August 1, 2012, the Sublease Base during the term of this Agreement Rental Rate for each Lease Year commencing after July 31, 2012 shall be the sum of 1) the Sublease Base Rental Rate for the prior Lease Year, plus 2) 3% of the Sublease Base Rental Rate for the prior Lease Year, provided that the Sublease Base Rental Rate during the Extension Term with respect to the 2d Floor Office Premises shall be determined in the same manner as the Sublease Base Rental Rate during the Extension Tenn is determined pursuant to the Sublease with respect to the Original Sublease Premises. For example, the Sublease Rental Rate with respect to the 2d Floor Office Premises during the Lease Year commencing August 1, 2012 shall be $20.60 per rentable square foot. {10435960:9} FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017 3.3. No Free Rent Period. The Subtenant shall not be entitled to any rights (pursuant to the second sentence of Section 3.1 of the Sublease) with respect to either the 2d Floor Office Premises or the Base Rent that is payable with respect thereto; and therefore the Subtenant shall not be entitled to any free rent period. 3.4. Subtenant's Proportionate Share. The Subtenant's Proportionate Share shall be deemed to be 4.03% per cent with respect to the 2d Floor Office Premises, subject to Section 3.14 of the Sublease. 3.5. Security Deposit. The Required Security Deposit Amount with respect to the 2d Floor Office Premises is $20,000. The Subtenant agrees to pay the Required Security Deposit Amount to the Sublandlord as follows: (1) $10,000 shall be paid to the Sublandlord on or before the date of this Agreement, and (2) $10,000 shall be paid to the Sublandlord within two months of the date of this Agreement. 3.6. Option to Extend. Section 16.9 of the Sublease shall apply to the 2d Floor Office Premises. The "Extension Term Fair Market Rental Rate" (with respect to the 2d Floor Office Premises) shall be calculated in the same manner as is provided in Paragraph 16.9 of the Sublease, provided that (1) whenever Paragraph 16.9 of the Sublease refers to the "Sublease," this shall be deemed a reference to this Agreement, and (2) whenever Paragraph 16.9 of the Sublease refers to the "Sublease Premises", this shall be deemed to be a reference to the 2d Floor Office Premises, and (3) the "Extension Term Fair Market Rental Rate" (with respect to the 2d Floor Office Premises) shall be the fair market rental rate of the 2d Floor Office Premises for the Extension Term. 3.7. Lease Year. Each "Lease Year", for the purposes of this Agreement with respect to the 2d Floor Office Premises, shall be the period beginning on August 1st and ending on the following July 31st during the term of this Agreement as it may be extended, provided that no Lease Year shall extend after the date of the expiration, termination, or cancellation of this Agreement. 4. Miscellaneous 4.1. Overlandlord. Subtenant agrees promptly to provide any financial or other information requested by Overlandlord. 4.2. Effective Date. This Agreement shall not be binding on the Sublandord unless and until: (1) each party to this Agreement has executed one or more paper counterparts of this Agreement and has physically delivered at least one such counterpart to the other party hereto, and (2) the Sublandlord has received all amounts that are payable to it on or before the date of this Agreement. {10435960:9} FILED: 09/26/2011 KINGS MON COUNTY 15:22 FAX CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016 VI UO05/007 005/00 7 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. Sublandlord Subtenant Lundy's Management Corp. Cherry Hill Gourmet, Inc. a New York corporation a New New York Yorkcorpora corpor ion • r By: By: Name: Steve Name: StevePappas Pappas / : David Isaev Title: President itle: Ale: President President Address for Notices: Address for Notices: do Mr. Steve Pappas c/o David Isaev lsaev 540 Atlantic Avenue, 5th Floor 2278-2284 86th Street Brooklyn, New York 11217 Brooklyn, New York 11214 with a copy to: with a copy to: Seelig & Meister Seelig & Fein LLP Cozen O'Connor 140 E. 45th Street, 19th Floor 277 Park Avenue New York, New York 10017 New York, New York 10172 Attn: Brook Boyd, Esq. Attn: Howard B. Hornstein, Esq. Guarantor The undersigned hereby confirms that (1) the Guaranty made as of August 1, 2007 by David Isaev lsaev to the Sublandlord with respect to the Sublease (the "Guaranty") is in full force and effect, and (2) the Guaranty is hereby made applicable to the obligations of the Subtenant under this Agreement, and therefore all obligations of the Subtenant pursuant to this Agreement are included within the meaning of the "Guaranteed Obligations" as defined defined ;thetheGuaranty. Guaranty. saev {10435960:9} (10435960:9) FILED: KINGS COUNTY CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017 Exhibit A Description of 2d Floor Office Premises FILED: 09/26/2011 KINGS COUNTY MON 13:05 FAX CLERK 04/27/2017 09:35 AM INDEX NO. 510844/2016 0006/006 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 04/27/2017 t2.65/51 I 25 6 um LNiT5 o.‹ - .1420_11XX1.2.- PlkOVIDS: MIN14.ZA N1V H CJ -7',. (..440W.ITY,,K..--a7 1-CAONes TO r4T-5 E X15 '0 4:•-•0F . 1.11.1111M.F11111. N rOOD c ouKi uJ 144,1 1,"411,-).• r• goo(' I\OOP c.-OkAT Ol • ogle ogle •‘41,1 4 .4 1441.41. ry • 1`41‘ 4'4 • 1 • TA 644=am II. -4" ••• 4.223. 141. 44111. *C p. 4 rod 04 4. IN...y.4 \ ---0 SHOPS - TO RE5TA.1,R.ANT. •• J ..200 reV, 04;4 11-40 • 11) •1.Y.4 :4/41. J 1i. yr. 6.44/.1: r 641 FIN C.7 ON ROGIHE'. kJ) 0' 14 AOC,(IVY AOC,(IVY . 0 AREA'D" £7. -1 PtOPLE t :c--r CD ),,,Aso4c1,ccsiverrd rr uric, ' ht. 11 111111111 Qk LES-END Van"... 1.6,142 efolIT.,/ 5.4O qlt haort on -5 . 0C-C-4.,,PA4GY PLEA HARKFT c 24/10P .X E TO 0E RE VON/F.- P cv.4.1.,t*ANcY 251 Prorl-E &RAND TOTAL 460 FF"Lf5 T PARTITION Doarcl„,,,k) +241!6 J • !ARK_ f7-74FULL HE IC,71iT C6P.,M!•. s C>O0R.f.dt,0 ONO7,"nIC-E5T:' PART!TIC/N5 t•-412K TOTAL 6 in4WTitt65, H£6i-f tvg.rns s h00$2.5 utirrt jt h 64-C PARTITION -11-IR VA !-4,A.1:2Kr'T f-- POCii: 2 2 a 2 tiNCT.-: TO GL tLYR 5o5" 64-e 1>OOR *12A wire EA 511:7E ON Ii2" MTh ;-211..,2S., 0 TOTAL a Lttir5 ptC 1/7://,' 51-\13 PAR.TIT:ON hYST ALRAN1. 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