Preview
FILED::
[FILED KINGS
KINGS COUNTY
COUNTY CLERK
CLERK 02/01/2019
08/15/2016 04:44
05 :28 PM
PM|
INDEX
INDEX NO.
NO. 510844/2016
5T0844/2016
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 403
31 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/01/2019
08/15/2016
SUBLEASE
dated as of
August 1, 2007
between
Lundy's Mañagersent Corp., Sublandlord
and
Cheny Hill Gourmet, Inc., Subtenant
(10385698:10)
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Table of Contents
1. Definitions and Basic Terms .................................................. 1
2. Demise; Term; Permitted Use.............. .........................................................5
3. Rents. ................... ......... ......................................................................7
4. Condition of the Sublease Premises.... .............................................12
5. Subordination to and Incorporation of the Overlease . .. 12
6. Insurance and Indemnification .................... .............................16
7. Covenant of Quiet Enjoyment........ ... ..................... ...17
8. Assignment and Subsubletting........................... .................. 17
9. Electricity....................... ................ .............................................................18
10. Alterations...................................................................................................
.....18
11. [Reserved]..............................
. .. .....................................
12. Security Deposit........................................ .................................. 19
13. Notices .............................................. ...............................................................20
14. Broker ............................ ............................................
.............................20
15. Overlandlord Consent. ............... ............................ ......20
16. Miscellaneous ......................................................................... ..........21
List of Exhibits
A Sublease Premises
B Landlord's Estimate
C Overlease
D Exclusions from Incorporated Provisions
E Method of Charging for Electricity
F Included Personal Property
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SUBLEASE
dated as of the Sublease Date between Sublandlord and Subtenant
WI T N E S E T H:
WHEREAS Sublandlord is now the tenant under the Overlease which demises the Property (the
"Overlease Premises"); and
WHEREAS Sublandlord desires to sublease to Subtenant, and Subtenant desires to sublease from
Sublandlord, the Sublease Premises 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 and Basic Terms
Set forth below are certain definitions and basic terms of this Sublease.
1.1. Sublease Date August 1, 2007
1.2. Sublandlord Lundy's Management Corp.
1.3. Subtenant Cherry Hill Gourmet, Inc.
1.4. Overlandlord the landlord under the Overlease.
1.5. Overlease that certain lease dated March 9, 1994 originally between
Sheepshead Restaurant Associates, Inc., as landlord,
and Lundy's Management Corp., as tenant, and as hereafter
amended.
1.6. Incorporated all of the provisions of the Overlease except for those listed on
Provisions Exhibit D hereto.
Premises"
1.7. Property the "Leased as defined in the Overlease.
1.8. Sublease Premises the portion of the Overlease Premises shown on Exhibit A hereto.
The Sublease Premises is also sometimes referred to herein as the
"Demised Premises".
1.9. Expiration Date The twentieth anniversary of the firstday of the firstRental Lease
Year.
{ t0385698:10)
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1.10. Sublease Base $24.00 per rentable square foot during the firstRental Lease Year;
Rental Rate $26.00 per rentable square foot during the second Rental Lease
Year; $27.00 per rentable square foot during the third Rental Lease
Year; $28.00 per rentable square foot during the fourth Rental
Lease Year; $29.00 per rentable square foot during the fifth Rental
Lease Year; $30.00 per rentable square foot during the sixth Rental
Lease Year; $31.00 per rentable square foot during the seventh
Rental Lease Year; $32.00 per rentable square foot during the
eighth Rental Lease Year; $33.00 per rentable square foot during
the ninth Rental Lease Year; $34.00 per rentable square foot
during the tenth Rental Lease Year; and $35.00 per rentable square
foot during the eleventh Rental Lease Year. During each Rental
Lease Year thereafter, and until the end of the twentieth Rental
Lease Year, the Sublease Base Rental Rate shall be 102% of the
Sublease Base Rental Rate during the prior Rental Lease Year.
For example, the Sublease Base Rental Rate for the twelfth Rental
Lease Year shall be $35.70 per rentable square foot. In the case of
each Rental Lease Year, the Sublease Base Rental Rate shall be
multiplied by Sublease Premises Rentable Area (i.e.,the rentable
square footage of the Sublease Premises) to determine the Base
Rent that is payable during such Rental Lease Year. The Sublease
Base Rental Rate does not include a charge for electricity.
1.11. Subtenant's 31.33% per cent, subject to section 3 14 hereof.
Proportionate
Share
1.12. Sublease Premises 14,100 rentable square feet. Sublandlord shall not be deemed to
Rentable Area have represented the accuracy of the Sublease Premises Rentable
Area.
1.13. Real estate taxes
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1.13.1. Real means the sum of (i) the real estate taxes and assessments, Business Improvement
Estate District taxes, charges and assessments, and special assessments, imposed upon
Taxes the Property including allbuildings thereon (collectively called the "Building")
"Land"
and the (as defined in the Overlease), and any rights or interests
attorneys'
appurtenant thereto, during any Tax Year and (ii) reasonable fees, court,
or other administrative costs and disbursements, in connection with any Real
Estate Taxes. If, at any time during the term of this Sublease, the methods of
taxation prevailing as of the date of this Sublease shall be altered so that, in lieu of,
or as an addition to, or as a substitute for, the whole or any part of the real estate
taxes, assessments, levies, impositions or charges now levied, assessed or
imposed, there shall be levied, assessed or imposed a tax, assessment, levy,
imposition or charge wholly or partially as a capital levy, or on the rents, licenses
or other charges received with respect to the Overlease Premises, the Land or the
Building, then allsuch taxes, assessments, levies, impositions or charges payable
Taxes"
shall be deemed to be included within the term "Real Estate for the
purposes hereof. If any special assessment is levied against the Overlease
Premises for an improvement to the Overlease Premises by any governmental unit,
and if Sublandlord has the right to elect to require that such special assessment be
paid in a number of installments, then Sublandlord agrees to exercise itsright to
require that such special assessment be paid in the maximum number of
installments. Nothing contained herein shall require Subtenant to pay any general
income tax, franchise tax, corporate transfer tax, estate tax or gift tax imposed
generally, rather than solely on a person as an owner of the Land or Building, or any
developmental impact fee arising as the result of any development of any portion of
the Overlease Premises other than the Sublease Premises, or any mortgage recording,
stamp, or transfer taxes payable in connection with the mortgaging, encumbrancing,
transfer, sale or lease of the Land or Building or any stock of or interestin Owner, or
any portion thereof or interest therein. Taxes and assessments which are deemed
Real Estate Taxes by reason of a change in the method of taxation (as provided
above in this paragraph) shallbe so included only ifimposed solely on realproperty
owners or solely on commercial real property owners and only to the extent that such
taxes and assessments would be payable by theowner of the Building ifthe Building
were the sole property of such owner and the income from the Building were the sole
income of such owner. A copy of the tax bill of The City of New York or other
taxing authority imposing Real Estate Taxes on theProperty, the Land or the
Building or any part thereof shall be sufficient evidence of the amount of Real
Estate Taxes. Notwithstanding the fact that the aforesaid Additional Rent is
measured by Real Estate Taxes, such amount is Additional Rent and shall be paid
by Subtenant as provided herein regardless of the fact that Subtenant may be
exempt, in whole or in part, from the payment of any Real Estate Taxes for any
reason whatsoever.
..
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1.13.2. Tax shall mean each twelve (12) month fiscal period commencing on July 1 and ending
Year on June 30 of the following year, any portion of which fiscal period occurs during
the term of this Sublease.
1.13.3. Tax shall mean the Subtenant's Proportionate Share of the amount of the Real Estate
Payment Taxes payable for each Tax Year (or portion thereof) occurring either during the
term of this Sublease or thereafter until the date the Subtenant surrenders
possession of the Sublease Premises in accordance with this Sublease. See Section
3.7 of this Sublease.
1.14. Expenses.
1.14.1. Expenses All of Subismdlord's reasonable expenses in connection with insurance, wages
and salaries (including fringe benefits, vacations, sick days, and payroll taxes)
for one employee (who is a superintendent), and utilities for common areas at
the Overlease Premises relating in any such case to the Property, the Building or
the Land, and any property adjacent thereto that is used for ingress or egress to
or from the Property or that is otherwise related to the Property (including,
without limitation, sidewalks, walkways, parking areas).
1.15. Lease Year Each one year period (or portion thereof, in the case of any
premature termination of the term of this Lease) during the term of this Sublease
commencing on the Commencement Date or any anniversary thereof. "Bental
Vear"
Lease shall mean each calendar year (orportion thereof, in the case of any
premature termination of the term of this Lease) during the term of this Sublease,
commencing on January 1, 2008, or any anniversary thereof.
1.16. Method of as described on ExhibitE hereto.
Charging for
Electricity
1.17. Included Personal the items, if any, listed on Exhibit F hereto.
Property
1.18. Personal Property None
Rent
1.19. Required Security $84,600.00
Deposit Amount
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1.20. Recognized Broker None
1.21. this Sublease this Agreement of Sublease, including the Incorporated Provisions as
"herein,"
incorporated herein. The terms "hereunder", etc. refer to this
Agreement of Sublease, including the Incorporated Provisions as incorporated
herein.
2. Demise; Term; Permitted Use
2.1. Sublandlord hereby subleases to Subtenant, and Subtenant hereby hires from Sublandlord, the
Sublease Premises upon and subject to the terms and conditions hereinafter set forth.
2.2. The term of this Sublease shall commence on the first date (the "C-....-cment Date") on which
all of the following shall have occurred:
2.2.1. Overlandlord shall have consented hereto in accordance with Section 15 below;
2.2.2. all occupants of the Sublease Premises, if any, shall have vacated the same; and
2.2.3. either (a) Sublandlord shall have notified Subtenant that the foregoing conditions have been
satisfied, or (b) Subtenant shall have commenced to occupy the Sublease Premises (provided
that, for the purpose of this Sublease, cleaning by Subtenant in order to prepare the Sublease
Premises for occupancy shall not be deemed to be occupancy by Subtenant).
If Subtenant shall take occupancy of the Sublease Premises prior to the Commencement Date, such
occupancy shall be subject to all of the terms and conditions of this Sublease, including the
obligation to pay rent. The provisions of this Section 2.2 shall be regarded as an "express provision
contrary"
to the within the meaning of Section 223-a of the Real Property Law.
2.3. If either party hereto shall so request, the parties hereto shall execute and deliver an instrument
confirming the Commencement Date, but the failure of either party to execute and deliver such
instrument shall not affect the Commencement Date.
2.4. The term of this Sublease shall expire on the Expiration Date or on such earlier date upon which
such term shall expire or be terminated pursuant to any of the provisions of this Sublease or pursuant
to law.
2.5. Notwithstanding anything to the contrary in this Sublease, in no event may Subtenant use the
Sublease Premises for any purpose that is not expressly permitted under the Overlease or by
applicable laws. Subject to the foregoing, and subject to the following sentences of this paragraph,
the Subtenant agrees that the Sublease Premises shall be used and occupied only as (1) an "eating or
place"
drinking pursuant to the New York City Zoning Resolution (provided that any outdoor table
service or musical entertainmcñt shall also be subject to the Sublandlord's approval, which shall not
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be unreasonably withheld or delayed), or (2) for such other use that is permitted by applicable laws,
subject to the Sublandord's approval, which shall not be unreasonably withheld, provided, however,
before commeñcing to use the Sublease Premises for any purpose other than as permitted by clause
(1) above in this sentence, the Subtenant shall deliver to Sublandlord, at least thirty (30) days before
the Subtenant commences using the Sublease Premises for such use, A) prior written notice
describing such proposed use in reasonable detail, and B) reasonable evidence of the legality of such
use (including, without limitation, a legal opinion or letter from an architect, that is reasonably
satisfactory to Sublandlord, and that confirms such use is legally permitted); and the Subtenant shall
not use the Sublease Premises for any other purpose. Without expanding the specificity of the
preceding sentence, in no event shall the Sublease Premises be used for any of the following: (1) a
banking, trust company, or safe deposit business, (2) a savings bank, a savings and loan association,
travelers'
or a loan company, (3) the sale of checks and/or foreign exchange, (4) a stock brokerage
office or for stock brokerage purposes, (5) photographic reproductions and/or offset printing, (6) an
employment or travel agency or airline ticket counter, (7) a school or classroom, (8) medical
(including, without limitation, abortion clinic, dental, psychiatric or family planning) offices, (9)
conduct of an auction, (10) gambling activities, (11) conduct of obscene, pornographic or similar
disreputable activities, (12) offices of an agency, department or bureau of the United States
Government, any state or municipality within the United States or any foreign government, or any
political subdivision of of offices of union or other not-for-
any them, (13) any charitable, religious,
profit organization, or (14) offices of any tax exempt entity within the meaning of Section 168(h)(2)
of the Internal Revenue Code of 1986, as amended, or any successor or substitute statute, or rule or
regulation applicable thereto. Subtenant covenants that itshall not permit or conduct any obscene
performance, of which it has or should have knowledge, on the Sublease Premises or permit the
same to be used for any obscene or pornographic purposes or activities of which it has or should
have knowledge, including, without limitation, the sale or distribution of any obscene or
"material" "performance"
pornographic material. The terms "obscene", and shall be defined for
purposes of this covenant as they are defined in Section 235.00 of the New York Penal Law, as the
same may be amended from time to time. Subtenant further covenants that it shall not operate a
culture"
"physical establishment on the Sublease Premises, except for a health club that promotes
exercise associated with weight training aerobics or other activities common at first-ratehealth clubs
located in the New York City area. Subtenant covenants that it shall not use or occupy the demised
Sublease Premises, and shall not knowingly permit or suffer it to be used or occupied, for the
purpose of performing any abortions or providing any professional counseling or advice advocating
abortions or family planning and it shall not place, permit or suffer to be placed, any signs or
advertising relating to abortions or family planning on or about the Sublease Premises, to the extent
that it knows or should know of any such prohibited uses or occupancies. Subtenant shall take all
steps necessary to ensure that itsemployees, agents, invitees and guests do not loiter in or near the
Building or adjacent plazas, and that in entering and exiting the Sublease Premises the Subtenant's
employees, agents; guests and invitees do not make unreasonable noise or commotion. Subtenant
shall not at any time use or occupy the Sublease Premises, or suffer or permit anyone to use or
occupy the Sublease Premises, or do anything in or about the Sublease Premises, or suffer or permit
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anything to be done in or about, brought into or kept or about the Sublease Premises, which in any
mamer in the sole but reasonable discretion of Sublandlord (i)violates the certificate of occupancy
for either the Sublease Premises, if any, the Building, or the Property, or any part thereof, or any
rules or regulations specified in Exhibit G hereto, or any other reasonable rules and regulations
promulgated by Subimdlord from time to time, (ii)causes or is likely to cause injury to the Sublease
Premises, the Building, the Property, or any equipment, facilitiesor systems therein; (iii) constitutes
a violation of laws; (iv) impairs the proper and economic maintenance, operation and repair of the
Building, the Property, and/or its equipment, facilities or systems; (v) unreasonably annoys or
disturbs other subtenants, owners or occupants of the Property or any part thereof; (vi) constitutes a
nuisance, public or private, (vii) makes unobtainable from reputable insurance companies authorized
to do business in New York State any fire insurance with extended coverage, or liability, elevator,
boiler or other insurance, at standard market rates, required to be furnished by Sublandlord under the
terms of any mortgages covering the Property or any interest therein; (viii)discharges objectionable
fumes, vapors or odors into the Building's flues or vents or the outside of the Building or otherwise
in such manner as may offend the public or other subtenants, owners or occupants of the Building or
the Property or any part thereof; or (ix) creates excessive floor loads. Subtenant covenants and
agrees that, promptly following the date hereof, Subtenant, at its sole cost and expense, shall take all
necessary steps, and use commercially reasonable efforts, to procure the required license(s) and/or
permit(s) required for the sale of alcoholic beverages for on-premises consumption on the Sublease
Premises (the "Liquor License"). Provided that Subtenant shall have procured (and furnished to
Sublandlord a true copy of) the Liquor License, then Subtenant shall have the right to sell such
alcoholic beverages for on-premises consumption, on the Sublease Premises, as part of its restaurant
business. Sublandlord makes no representation or warranty that the aforesaid permits and/or licenses
will be issued, and Sublandlord shall not be obligated to incur any expenditures in connection
therewith. Subtenant acknowledges that nothing herein contained is intended or shall be deemed to
make this Sublease, or Subtenant's obligations hereunder, subject to or conditioned upon Subtenant
obtaining the Liquor License. Subtenant shall pay all of Sublandord's reasonable expenses in
connection with the Liquor License. Subtenant shall keep all permits and licenses required by public
health and governmental agencies of the City of New York and the State of New York current,
properly protected, posted and readily available for inspection.
3. Rents.
3.1. Subtenant shall pay to Sublandlord rent ("Base Rent") at the rate per annum equal to the Sublease
Base Rental Rate (multiplied by the rentable square footage of the Sublease Premises), payable in
equal monthly installments in advance on the firstday of the firstRental Lease Year and on the first
day of each month thereafter, pro-rated for any partial month, except as follows. Notwithstanding
the foregoing, the Subtenant shall not be obligated to pay the monthly installment of Base Rent for
January, 2009, or the monthly installment of Base Rent for February, 2009, if the Subtenant is not in
default (after all applicable grace or notice periods) at the time such monthly installment of Base
Rent would otherwise have accrued pursuant to the provisions of this Sublease other than this
..
{10385698:10)7
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sentence. Upon execution of this Subicase, Subtenant shall make an advance payment of one
month's Base Rent to be applied to the first full month's Base Rent. Since the rentable square
footage of the Sublease Premises is 14,100 rentable square feet, therefore the Base Rent for the
Sublease Premises is accordingly $338,400 per annum for the firstRental Lease Year, subject to the
following.
3.2. Commencing on the first day of the first Rental Lease Year, Subtenant shall pay to Sublandlord
additional rent equal to Subtenant's Proportionate Share of all amounts payable by Subleadlord
attributable to Real Estate Taxes, subject to the other provisions of this Sublease. With respect to
each Tax Year occurring in whole or in part during the term of this Sublease (and thereafter until
Subtenant surrenders possession of the Sublease Premises in accordance with this Sublease),
Subtenant shall pay to Sublandlord the Tax Payment in the manner as described in this Sublease. At
any time after the date which is thirty (30) days prior to the commencement of each Tax Year,
Sublandlord may furnish to Subtenant a written statement (a "Tax Statement") setting forth the
amount of Real Estate Taxes for such Tax Year, and the amount of the Tax Payment for such Tax
Year. Subtenant shall pay the Tax Payment for each such Tax Year to Sublandlord as Additional
Rent in one annual installment within ten (10) days after receipt by Subtenant of such Tax Statement,
or, at Subtenant's option, Subtenant may pay the Tax Payment to the Sublandlord in two equal
20*
installments, and each such installment shall be payable to Sublandlord not later than the day
before the corresponding installment of Real Estate Taxes that is payable for such Tax Year;
provided, however, notwithstanding the above, if Sublandlord requests, Subtenant shall pay, to
Sublandlord, Subtenant's Tax Payment as reasonably estimated by Sublandlord from time to time in
monthly installments, in advance, on the first day of each calendar month or other period. If
Sublandlord requests or revises the installments of Subtenant's Tax Payment following the
commeñcerñent of a fiscal year, Subtenant shall (a) until a request is made, pay the installments of
Subtenant's Tax Payment for the prior fiscal year and (b) within 10 days following Subtenant's
receipt of Sublandlord's request or revision, pay the installments of Subtenant's Tax Payment
retroactive to the beginning of that fiscal year to the extent they exceed the Tax Payments previously
made by Subtenant for that fiscal year (or if they are less, Sublandlord shall credit, against the next
payments under this Sublease, [or, at the request of Subtenant, refund] the difference). Only
Sublandlord or its designee shall be entitled to institute tax reduction or other proceedings to reduce
the assessed valuation of the Property, the Land or the Building. Each Tax Statement, and each other
bill or invoice of Sublandlord on account of any Additional Rent, shall be conclusive and binding
upon Subtenant unless (i) with respect to any such Tax Statement, billor invoice, and on or before
the date which is three hundred sixty five (365) days after the delivery by Sublandlord to Subtenant
of such statement, bill or invoice, Subtenant shall deliver written notice to Sublandlord that
Subtenant disputes the correctness thereof, specifying the particular respects in which such statement
is claimed to be incorrect. Pending the determination of such dispute, Subtenant shall pay any
disputed portion of the relevant Tax Payment and other Additional Rent to Sublandlord (as and when
otherwise payable to Sublandlord under this Sublease) and Subtenant shall pay any undisputed
portion of the relevant Tax Payment and other Additional Rent in accordance with the applicable Tax
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Statement, invoice or bill (and Sublandlord shall credit [or, at the Subtenant's request, refund] any
overpayment by Subtenant following the determination of such dispute). See Section 3.5 hereof.
3.3. Commencing on the first day of the firstRental Lease Year, Subtenant shall pay to Sublandlord
additional rent equal to Subtenant's Proportionate Share of all amounts payable by Sublandlord
Statement"
attributable to Expenses, subject to the other provisions of this Sublease. "Expense
means a reasonably detailed statement prepared by Sublandlord or, at Sublandlord's option, a third
Payment"
party, showing the calculation of Subtenant's Expense Payment. "Subtenant's Expense
means Subtenant's Share of the Expenses for any calendar year or portion thereof during the term of
this Sublease (and thereafter until Subtenant surrenders possession of the Sublease Premises in
accordance with this Sublease). Subtenant shall pay, to Sublandlord, Subtenant's Expense Payment
within 15 days following Subtenant's receipt of the Expense Statement for that calendar year. If
Sublandlord requests, Subtenant shall pay, to Sublandlord, Subtenant's Expense Payment as
reasonably estimated by Sublandlord from time to time in monthly or other periodic installments, in
advance, on the firstday of each celedar month or other period. IfSublandlord requests or revises
the installments of Subtenant's Expense Payment following the commencement of a calendar year,
Subtenant shall (a) until a request is made, pay the installments of Subtenant's Expense Payment for
the prior calendar year and (b) within 10 days following Subtenant's receipt of Sublandlord's request
or revision, pay the installments of Subtenant's Expense Payment retroactive to the begiññing of that
calendar year to the extent they exceed the payments previously made by Subtenant for that calendar
year (or if they are less, Sublandlord shall credit, against the next payments under this Sublease, [or,
at the request of Subtenant, refund] the difference). Sublandlord shall,within 120 days following the
end of each calendar year, use reasonable efforts to deliver to Subtenant an Expense Statement for
that calendar year. If the aggregate amount collected by Sublandlord from Subtenant for that
calendar year is less than Subtenant's Expense Payment shown on that Expense Statement,
Subtenant shall pay the deficiency to Sublandlord within 10 days following Subtenant's receipt of
that Expense Statement. If,however, the aggregate amount collected by Sublandlord from Subtenant
is greater, Sublandlord sha
Preview
FILED:: [FILED KINGS KINGS COUNTY COUNTY CLERK CLERK 02/01/2019 08/15/2016 04:44 05 :28 PM PM| INDEX INDEX NO. NO. 510844/2016 5T0844/2016 NYSCEF NYSCEF DOC. DOC. NO. NO. 403 31 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/01/2019 08/15/2016 SUBLEASE dated as of August 1, 2007 between Lundy's Mañagersent Corp., Sublandlord and Cheny Hill Gourmet, Inc., Subtenant (10385698:10) FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 Table of Contents 1. Definitions and Basic Terms .................................................. 1 2. Demise; Term; Permitted Use.............. .........................................................5 3. Rents. ................... ......... ......................................................................7 4. Condition of the Sublease Premises.... .............................................12 5. Subordination to and Incorporation of the Overlease . .. 12 6. Insurance and Indemnification .................... .............................16 7. Covenant of Quiet Enjoyment........ ... ..................... ...17 8. Assignment and Subsubletting........................... .................. 17 9. Electricity....................... ................ .............................................................18 10. Alterations................................................................................................... .....18 11. [Reserved].............................. . .. ..................................... 12. Security Deposit........................................ .................................. 19 13. Notices .............................................. ...............................................................20 14. Broker ............................ ............................................ .............................20 15. Overlandlord Consent. ............... ............................ ......20 16. Miscellaneous ......................................................................... ..........21 List of Exhibits A Sublease Premises B Landlord's Estimate C Overlease D Exclusions from Incorporated Provisions E Method of Charging for Electricity F Included Personal Property {1038S69&:10} FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 SUBLEASE dated as of the Sublease Date between Sublandlord and Subtenant WI T N E S E T H: WHEREAS Sublandlord is now the tenant under the Overlease which demises the Property (the "Overlease Premises"); and WHEREAS Sublandlord desires to sublease to Subtenant, and Subtenant desires to sublease from Sublandlord, the Sublease Premises 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 and Basic Terms Set forth below are certain definitions and basic terms of this Sublease. 1.1. Sublease Date August 1, 2007 1.2. Sublandlord Lundy's Management Corp. 1.3. Subtenant Cherry Hill Gourmet, Inc. 1.4. Overlandlord the landlord under the Overlease. 1.5. Overlease that certain lease dated March 9, 1994 originally between Sheepshead Restaurant Associates, Inc., as landlord, and Lundy's Management Corp., as tenant, and as hereafter amended. 1.6. Incorporated all of the provisions of the Overlease except for those listed on Provisions Exhibit D hereto. Premises" 1.7. Property the "Leased as defined in the Overlease. 1.8. Sublease Premises the portion of the Overlease Premises shown on Exhibit A hereto. The Sublease Premises is also sometimes referred to herein as the "Demised Premises". 1.9. Expiration Date The twentieth anniversary of the firstday of the firstRental Lease Year. { t0385698:10) FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 1.10. Sublease Base $24.00 per rentable square foot during the firstRental Lease Year; Rental Rate $26.00 per rentable square foot during the second Rental Lease Year; $27.00 per rentable square foot during the third Rental Lease Year; $28.00 per rentable square foot during the fourth Rental Lease Year; $29.00 per rentable square foot during the fifth Rental Lease Year; $30.00 per rentable square foot during the sixth Rental Lease Year; $31.00 per rentable square foot during the seventh Rental Lease Year; $32.00 per rentable square foot during the eighth Rental Lease Year; $33.00 per rentable square foot during the ninth Rental Lease Year; $34.00 per rentable square foot during the tenth Rental Lease Year; and $35.00 per rentable square foot during the eleventh Rental Lease Year. During each Rental Lease Year thereafter, and until the end of the twentieth Rental Lease Year, the Sublease Base Rental Rate shall be 102% of the Sublease Base Rental Rate during the prior Rental Lease Year. For example, the Sublease Base Rental Rate for the twelfth Rental Lease Year shall be $35.70 per rentable square foot. In the case of each Rental Lease Year, the Sublease Base Rental Rate shall be multiplied by Sublease Premises Rentable Area (i.e.,the rentable square footage of the Sublease Premises) to determine the Base Rent that is payable during such Rental Lease Year. The Sublease Base Rental Rate does not include a charge for electricity. 1.11. Subtenant's 31.33% per cent, subject to section 3 14 hereof. Proportionate Share 1.12. Sublease Premises 14,100 rentable square feet. Sublandlord shall not be deemed to Rentable Area have represented the accuracy of the Sublease Premises Rentable Area. 1.13. Real estate taxes {10385698:10)2 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 1.13.1. Real means the sum of (i) the real estate taxes and assessments, Business Improvement Estate District taxes, charges and assessments, and special assessments, imposed upon Taxes the Property including allbuildings thereon (collectively called the "Building") "Land" and the (as defined in the Overlease), and any rights or interests attorneys' appurtenant thereto, during any Tax Year and (ii) reasonable fees, court, or other administrative costs and disbursements, in connection with any Real Estate Taxes. If, at any time during the term of this Sublease, the methods of taxation prevailing as of the date of this Sublease shall be altered so that, in lieu of, or as an addition to, or as a substitute for, the whole or any part of the real estate taxes, assessments, levies, impositions or charges now levied, assessed or imposed, there shall be levied, assessed or imposed a tax, assessment, levy, imposition or charge wholly or partially as a capital levy, or on the rents, licenses or other charges received with respect to the Overlease Premises, the Land or the Building, then allsuch taxes, assessments, levies, impositions or charges payable Taxes" shall be deemed to be included within the term "Real Estate for the purposes hereof. If any special assessment is levied against the Overlease Premises for an improvement to the Overlease Premises by any governmental unit, and if Sublandlord has the right to elect to require that such special assessment be paid in a number of installments, then Sublandlord agrees to exercise itsright to require that such special assessment be paid in the maximum number of installments. Nothing contained herein shall require Subtenant to pay any general income tax, franchise tax, corporate transfer tax, estate tax or gift tax imposed generally, rather than solely on a person as an owner of the Land or Building, or any developmental impact fee arising as the result of any development of any portion of the Overlease Premises other than the Sublease Premises, or any mortgage recording, stamp, or transfer taxes payable in connection with the mortgaging, encumbrancing, transfer, sale or lease of the Land or Building or any stock of or interestin Owner, or any portion thereof or interest therein. Taxes and assessments which are deemed Real Estate Taxes by reason of a change in the method of taxation (as provided above in this paragraph) shallbe so included only ifimposed solely on realproperty owners or solely on commercial real property owners and only to the extent that such taxes and assessments would be payable by theowner of the Building ifthe Building were the sole property of such owner and the income from the Building were the sole income of such owner. A copy of the tax bill of The City of New York or other taxing authority imposing Real Estate Taxes on theProperty, the Land or the Building or any part thereof shall be sufficient evidence of the amount of Real Estate Taxes. Notwithstanding the fact that the aforesaid Additional Rent is measured by Real Estate Taxes, such amount is Additional Rent and shall be paid by Subtenant as provided herein regardless of the fact that Subtenant may be exempt, in whole or in part, from the payment of any Real Estate Taxes for any reason whatsoever. .. {10385698:I0)3 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 1.13.2. Tax shall mean each twelve (12) month fiscal period commencing on July 1 and ending Year on June 30 of the following year, any portion of which fiscal period occurs during the term of this Sublease. 1.13.3. Tax shall mean the Subtenant's Proportionate Share of the amount of the Real Estate Payment Taxes payable for each Tax Year (or portion thereof) occurring either during the term of this Sublease or thereafter until the date the Subtenant surrenders possession of the Sublease Premises in accordance with this Sublease. See Section 3.7 of this Sublease. 1.14. Expenses. 1.14.1. Expenses All of Subismdlord's reasonable expenses in connection with insurance, wages and salaries (including fringe benefits, vacations, sick days, and payroll taxes) for one employee (who is a superintendent), and utilities for common areas at the Overlease Premises relating in any such case to the Property, the Building or the Land, and any property adjacent thereto that is used for ingress or egress to or from the Property or that is otherwise related to the Property (including, without limitation, sidewalks, walkways, parking areas). 1.15. Lease Year Each one year period (or portion thereof, in the case of any premature termination of the term of this Lease) during the term of this Sublease commencing on the Commencement Date or any anniversary thereof. "Bental Vear" Lease shall mean each calendar year (orportion thereof, in the case of any premature termination of the term of this Lease) during the term of this Sublease, commencing on January 1, 2008, or any anniversary thereof. 1.16. Method of as described on ExhibitE hereto. Charging for Electricity 1.17. Included Personal the items, if any, listed on Exhibit F hereto. Property 1.18. Personal Property None Rent 1.19. Required Security $84,600.00 Deposit Amount 00385698:10}4 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 1.20. Recognized Broker None 1.21. this Sublease this Agreement of Sublease, including the Incorporated Provisions as "herein," incorporated herein. The terms "hereunder", etc. refer to this Agreement of Sublease, including the Incorporated Provisions as incorporated herein. 2. Demise; Term; Permitted Use 2.1. Sublandlord hereby subleases to Subtenant, and Subtenant hereby hires from Sublandlord, the Sublease Premises upon and subject to the terms and conditions hereinafter set forth. 2.2. The term of this Sublease shall commence on the first date (the "C-....-cment Date") on which all of the following shall have occurred: 2.2.1. Overlandlord shall have consented hereto in accordance with Section 15 below; 2.2.2. all occupants of the Sublease Premises, if any, shall have vacated the same; and 2.2.3. either (a) Sublandlord shall have notified Subtenant that the foregoing conditions have been satisfied, or (b) Subtenant shall have commenced to occupy the Sublease Premises (provided that, for the purpose of this Sublease, cleaning by Subtenant in order to prepare the Sublease Premises for occupancy shall not be deemed to be occupancy by Subtenant). If Subtenant shall take occupancy of the Sublease Premises prior to the Commencement Date, such occupancy shall be subject to all of the terms and conditions of this Sublease, including the obligation to pay rent. The provisions of this Section 2.2 shall be regarded as an "express provision contrary" to the within the meaning of Section 223-a of the Real Property Law. 2.3. If either party hereto shall so request, the parties hereto shall execute and deliver an instrument confirming the Commencement Date, but the failure of either party to execute and deliver such instrument shall not affect the Commencement Date. 2.4. The term of this Sublease shall expire on the Expiration Date or on such earlier date upon which such term shall expire or be terminated pursuant to any of the provisions of this Sublease or pursuant to law. 2.5. Notwithstanding anything to the contrary in this Sublease, in no event may Subtenant use the Sublease Premises for any purpose that is not expressly permitted under the Overlease or by applicable laws. Subject to the foregoing, and subject to the following sentences of this paragraph, the Subtenant agrees that the Sublease Premises shall be used and occupied only as (1) an "eating or place" drinking pursuant to the New York City Zoning Resolution (provided that any outdoor table service or musical entertainmcñt shall also be subject to the Sublandlord's approval, which shall not {10385698:10)5 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 be unreasonably withheld or delayed), or (2) for such other use that is permitted by applicable laws, subject to the Sublandord's approval, which shall not be unreasonably withheld, provided, however, before commeñcing to use the Sublease Premises for any purpose other than as permitted by clause (1) above in this sentence, the Subtenant shall deliver to Sublandlord, at least thirty (30) days before the Subtenant commences using the Sublease Premises for such use, A) prior written notice describing such proposed use in reasonable detail, and B) reasonable evidence of the legality of such use (including, without limitation, a legal opinion or letter from an architect, that is reasonably satisfactory to Sublandlord, and that confirms such use is legally permitted); and the Subtenant shall not use the Sublease Premises for any other purpose. Without expanding the specificity of the preceding sentence, in no event shall the Sublease Premises be used for any of the following: (1) a banking, trust company, or safe deposit business, (2) a savings bank, a savings and loan association, travelers' or a loan company, (3) the sale of checks and/or foreign exchange, (4) a stock brokerage office or for stock brokerage purposes, (5) photographic reproductions and/or offset printing, (6) an employment or travel agency or airline ticket counter, (7) a school or classroom, (8) medical (including, without limitation, abortion clinic, dental, psychiatric or family planning) offices, (9) conduct of an auction, (10) gambling activities, (11) conduct of obscene, pornographic or similar disreputable activities, (12) offices of an agency, department or bureau of the United States Government, any state or municipality within the United States or any foreign government, or any political subdivision of of offices of union or other not-for- any them, (13) any charitable, religious, profit organization, or (14) offices of any tax exempt entity within the meaning of Section 168(h)(2) of the Internal Revenue Code of 1986, as amended, or any successor or substitute statute, or rule or regulation applicable thereto. Subtenant covenants that itshall not permit or conduct any obscene performance, of which it has or should have knowledge, on the Sublease Premises or permit the same to be used for any obscene or pornographic purposes or activities of which it has or should have knowledge, including, without limitation, the sale or distribution of any obscene or "material" "performance" pornographic material. The terms "obscene", and shall be defined for purposes of this covenant as they are defined in Section 235.00 of the New York Penal Law, as the same may be amended from time to time. Subtenant further covenants that it shall not operate a culture" "physical establishment on the Sublease Premises, except for a health club that promotes exercise associated with weight training aerobics or other activities common at first-ratehealth clubs located in the New York City area. Subtenant covenants that it shall not use or occupy the demised Sublease Premises, and shall not knowingly permit or suffer it to be used or occupied, for the purpose of performing any abortions or providing any professional counseling or advice advocating abortions or family planning and it shall not place, permit or suffer to be placed, any signs or advertising relating to abortions or family planning on or about the Sublease Premises, to the extent that it knows or should know of any such prohibited uses or occupancies. Subtenant shall take all steps necessary to ensure that itsemployees, agents, invitees and guests do not loiter in or near the Building or adjacent plazas, and that in entering and exiting the Sublease Premises the Subtenant's employees, agents; guests and invitees do not make unreasonable noise or commotion. Subtenant shall not at any time use or occupy the Sublease Premises, or suffer or permit anyone to use or occupy the Sublease Premises, or do anything in or about the Sublease Premises, or suffer or permit {l0385698:i0}6 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 anything to be done in or about, brought into or kept or about the Sublease Premises, which in any mamer in the sole but reasonable discretion of Sublandlord (i)violates the certificate of occupancy for either the Sublease Premises, if any, the Building, or the Property, or any part thereof, or any rules or regulations specified in Exhibit G hereto, or any other reasonable rules and regulations promulgated by Subimdlord from time to time, (ii)causes or is likely to cause injury to the Sublease Premises, the Building, the Property, or any equipment, facilitiesor systems therein; (iii) constitutes a violation of laws; (iv) impairs the proper and economic maintenance, operation and repair of the Building, the Property, and/or its equipment, facilities or systems; (v) unreasonably annoys or disturbs other subtenants, owners or occupants of the Property or any part thereof; (vi) constitutes a nuisance, public or private, (vii) makes unobtainable from reputable insurance companies authorized to do business in New York State any fire insurance with extended coverage, or liability, elevator, boiler or other insurance, at standard market rates, required to be furnished by Sublandlord under the terms of any mortgages covering the Property or any interest therein; (viii)discharges objectionable fumes, vapors or odors into the Building's flues or vents or the outside of the Building or otherwise in such manner as may offend the public or other subtenants, owners or occupants of the Building or the Property or any part thereof; or (ix) creates excessive floor loads. Subtenant covenants and agrees that, promptly following the date hereof, Subtenant, at its sole cost and expense, shall take all necessary steps, and use commercially reasonable efforts, to procure the required license(s) and/or permit(s) required for the sale of alcoholic beverages for on-premises consumption on the Sublease Premises (the "Liquor License"). Provided that Subtenant shall have procured (and furnished to Sublandlord a true copy of) the Liquor License, then Subtenant shall have the right to sell such alcoholic beverages for on-premises consumption, on the Sublease Premises, as part of its restaurant business. Sublandlord makes no representation or warranty that the aforesaid permits and/or licenses will be issued, and Sublandlord shall not be obligated to incur any expenditures in connection therewith. Subtenant acknowledges that nothing herein contained is intended or shall be deemed to make this Sublease, or Subtenant's obligations hereunder, subject to or conditioned upon Subtenant obtaining the Liquor License. Subtenant shall pay all of Sublandord's reasonable expenses in connection with the Liquor License. Subtenant shall keep all permits and licenses required by public health and governmental agencies of the City of New York and the State of New York current, properly protected, posted and readily available for inspection. 3. Rents. 3.1. Subtenant shall pay to Sublandlord rent ("Base Rent") at the rate per annum equal to the Sublease Base Rental Rate (multiplied by the rentable square footage of the Sublease Premises), payable in equal monthly installments in advance on the firstday of the firstRental Lease Year and on the first day of each month thereafter, pro-rated for any partial month, except as follows. Notwithstanding the foregoing, the Subtenant shall not be obligated to pay the monthly installment of Base Rent for January, 2009, or the monthly installment of Base Rent for February, 2009, if the Subtenant is not in default (after all applicable grace or notice periods) at the time such monthly installment of Base Rent would otherwise have accrued pursuant to the provisions of this Sublease other than this .. {10385698:10)7 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 sentence. Upon execution of this Subicase, Subtenant shall make an advance payment of one month's Base Rent to be applied to the first full month's Base Rent. Since the rentable square footage of the Sublease Premises is 14,100 rentable square feet, therefore the Base Rent for the Sublease Premises is accordingly $338,400 per annum for the firstRental Lease Year, subject to the following. 3.2. Commencing on the first day of the first Rental Lease Year, Subtenant shall pay to Sublandlord additional rent equal to Subtenant's Proportionate Share of all amounts payable by Subleadlord attributable to Real Estate Taxes, subject to the other provisions of this Sublease. With respect to each Tax Year occurring in whole or in part during the term of this Sublease (and thereafter until Subtenant surrenders possession of the Sublease Premises in accordance with this Sublease), Subtenant shall pay to Sublandlord the Tax Payment in the manner as described in this Sublease. At any time after the date which is thirty (30) days prior to the commencement of each Tax Year, Sublandlord may furnish to Subtenant a written statement (a "Tax Statement") setting forth the amount of Real Estate Taxes for such Tax Year, and the amount of the Tax Payment for such Tax Year. Subtenant shall pay the Tax Payment for each such Tax Year to Sublandlord as Additional Rent in one annual installment within ten (10) days after receipt by Subtenant of such Tax Statement, or, at Subtenant's option, Subtenant may pay the Tax Payment to the Sublandlord in two equal 20* installments, and each such installment shall be payable to Sublandlord not later than the day before the corresponding installment of Real Estate Taxes that is payable for such Tax Year; provided, however, notwithstanding the above, if Sublandlord requests, Subtenant shall pay, to Sublandlord, Subtenant's Tax Payment as reasonably estimated by Sublandlord from time to time in monthly installments, in advance, on the first day of each calendar month or other period. If Sublandlord requests or revises the installments of Subtenant's Tax Payment following the commeñcerñent of a fiscal year, Subtenant shall (a) until a request is made, pay the installments of Subtenant's Tax Payment for the prior fiscal year and (b) within 10 days following Subtenant's receipt of Sublandlord's request or revision, pay the installments of Subtenant's Tax Payment retroactive to the beginning of that fiscal year to the extent they exceed the Tax Payments previously made by Subtenant for that fiscal year (or if they are less, Sublandlord shall credit, against the next payments under this Sublease, [or, at the request of Subtenant, refund] the difference). Only Sublandlord or its designee shall be entitled to institute tax reduction or other proceedings to reduce the assessed valuation of the Property, the Land or the Building. Each Tax Statement, and each other bill or invoice of Sublandlord on account of any Additional Rent, shall be conclusive and binding upon Subtenant unless (i) with respect to any such Tax Statement, billor invoice, and on or before the date which is three hundred sixty five (365) days after the delivery by Sublandlord to Subtenant of such statement, bill or invoice, Subtenant shall deliver written notice to Sublandlord that Subtenant disputes the correctness thereof, specifying the particular respects in which such statement is claimed to be incorrect. Pending the determination of such dispute, Subtenant shall pay any disputed portion of the relevant Tax Payment and other Additional Rent to Sublandlord (as and when otherwise payable to Sublandlord under this Sublease) and Subtenant shall pay any undisputed portion of the relevant Tax Payment and other Additional Rent in accordance with the applicable Tax {l0385698:10)8 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 403 RECEIVED NYSCEF: 02/01/2019 Statement, invoice or bill (and Sublandlord shall credit [or, at the Subtenant's request, refund] any overpayment by Subtenant following the determination of such dispute). See Section 3.5 hereof. 3.3. Commencing on the first day of the firstRental Lease Year, Subtenant shall pay to Sublandlord additional rent equal to Subtenant's Proportionate Share of all amounts payable by Sublandlord Statement" attributable to Expenses, subject to the other provisions of this Sublease. "Expense means a reasonably detailed statement prepared by Sublandlord or, at Sublandlord's option, a third Payment" party, showing the calculation of Subtenant's Expense Payment. "Subtenant's Expense means Subtenant's Share of the Expenses for any calendar year or portion thereof during the term of this Sublease (and thereafter until Subtenant surrenders possession of the Sublease Premises in accordance with this Sublease). Subtenant shall pay, to Sublandlord, Subtenant's Expense Payment within 15 days following Subtenant's receipt of the Expense Statement for that calendar year. If Sublandlord requests, Subtenant shall pay, to Sublandlord, Subtenant's Expense Payment as reasonably estimated by Sublandlord from time to time in monthly or other periodic installments, in advance, on the firstday of each celedar month or other period. IfSublandlord requests or revises the installments of Subtenant's Expense Payment following the commencement of a calendar year, Subtenant shall (a) until a request is made, pay the installments of Subtenant's Expense Payment for the prior calendar year and (b) within 10 days following Subtenant's receipt of Sublandlord's request or revision, pay the installments of Subtenant's Expense Payment retroactive to the begiññing of that calendar year to the extent they exceed the payments previously made by Subtenant for that calendar year (or if they are less, Sublandlord shall credit, against the next payments under this Sublease, [or, at the request of Subtenant, refund] the difference). Sublandlord shall,within 120 days following the end of each calendar year, use reasonable efforts to deliver to Subtenant an Expense Statement for that calendar year. If the aggregate amount collected by Sublandlord from Subtenant for that calendar year is less than Subtenant's Expense Payment shown on that Expense Statement, Subtenant shall pay the deficiency to Sublandlord within 10 days following Subtenant's receipt of that Expense Statement. If,however, the aggregate amount collected by Sublandlord from Subtenant is greater, Sublandlord sha