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AMENDED AND RESTATED LEASE AGREEMENT

Lease Agreement

AMENDED AND RESTATED LEASE AGREEMENT | Document Parties: HOME PROPERTIES INC | Broadstone Real Estate | CLINTON ASSET HOLDING ASSOCIATES, LP | CS Broadstreet, Inc | Home Properties, Inc | HOME PROPERTIES, LP | New York, LP You are currently viewing:
This Lease Agreement involves

HOME PROPERTIES INC | Broadstone Real Estate | CLINTON ASSET HOLDING ASSOCIATES, LP | CS Broadstreet, Inc | Home Properties, Inc | HOME PROPERTIES, LP | New York, LP

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Title: AMENDED AND RESTATED LEASE AGREEMENT
Governing Law: New York     Date: 8/7/2009
Industry: Real Estate Operations     Law Firm: Harris Beach     Sector: Services

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EXHIBIT 10.1

 

AMENDED AND RESTATED LEASE AGREEMENT

 

BETWEEN

 

CLINTON ASSET HOLDING ASSOCIATES, L.P., LANDLORD

 

and

 

HOME PROPERTIES, L.P., TENANT

 

FOR SPACE LOCATED AT

 

CLINTON SQUARE

 

BROAD STREET

 

ROCHESTER, NEW YORK

 

 

 


 

 

Table of Contents

 

 

1.

THE PREMISES

2

2.

TERM

4

3.

USE

5

4.

RENT

5

5.

UTILITY CHARGES

7

6.

REAL PROPERTY TAXES

8

7.

TENANT IMPROVEMENTS

9

8.

ALTERATIONS

10

9.

PERSONAL PROPERTY OF TENANT

11

10.

LIENS

11

11.

MAINTENANCE BY TENANT

12

12.

SIGNS

12

13.

DELIVERIES

12

14.

TENANT’S EQUIPMENT

13

15.

INSURANCE

14

16.

CONTRACTOR’S INSURANCE

15

17.

SERVICES AND UTILITIES

17

18

ENTRY FOR INSPECTIONS

18

19.

DAMAGE

19

20.

DEFAULT AND REMEDIES

19

21.

WAIVER

22

22.

SUBORDINATION, ATTORNMENT

22

23.

SERVICE OF PROCESS

23

24.

ESTOPPEL CERTIFICATES

23

25.

CONDEMNATION

24

26.

BUILDING RULES

25

27.

RIGHT TO CURE

25

28.

TIME FOR PAYMENT

26

29.

NO PARTNERSHIP

26

30.

LANDLORD REPRESENTATIONS

26

31.

SUBLETTING AND ASSIGNING

27

32.

BROKERS

27

33.

WAIVER OF JURY TRIAL, INJUNCTIONS

28

34.

ENFORCEMENT OF LEASE

28

35.

NOTICES

28

36.

HOLDOVER

29

37.

END OF TERM

29

38.

QUIET ENJOYMENT

29

39.

ASSIGNABILITY BY LANDLORD

29

40.

SUCCESSORS AND ASSIGNS

29

41.

PARKING

29

42.

RIGHT OF FIRST OFFER

30

43.

RELOCATION

30

44.

GENDER

31

45.

MISCELLANEOUS

31

46.

CONTINGENCIES

31

 

 

EXHIBIT REFERENCES

 

EXHIBIT A                                Floor Plan of Premises

 

EXHIBIT B                                Schedule of Janitorial Services

 

 

 

 


 

 

AMENDED AND RESTATED LEASE AGREEMENT

 

This Amended and Restated Lease Agreement (this “Lease”) is made and entered into as of the 6th day of July, 2009, by and between CLINTON ASSET HOLDING ASSOCIATES, L.P., a New York limited partnership, hereinafter called “Landlord”, and HOME PROPERTIES, L.P. (formerly known as Home Properties of New York, L.P.), a New York limited partnership, hereinafter called “Tenant”.

 

WHEREAS, Landlord and Tenant have previously entered into a Lease dated March 1, 1998, pertaining to the 1st, 2nd and 8th floors of the building commonly know as Clinton Square located on the north side of Broad Street, in the City of Rochester, New York (“Building”), which Lease was subsequently amended by Amendment No. One to Lease, dated as of July 14, 2000; Amendment No. Two to Lease, dated as of May 1, 2001; and Amendment No. Three to Lease, dated as of November 3, 2005 (as amended, the “First Lease”).

 

WHEREAS, Landlord and Tenant have also previously entered into a Lease dated July 30, 2001 (the “Second Lease”), pertaining to the 3rd floor of the Building.

 

WHEREAS, Landlord and Tenant now wish, effective as of October 1, 2009 (the “Commencement Date”), to consolidate, amend and restate the First Lease and the Second Lease (collectively, the “Prior Leases”) all as more fully set forth in this Lease.

 

NOW, THEREFORE, the parties agree as follows:

 

This Lease contains a number of defined terms, each of which is identified by having the initial letter of each word capitalized.  For convenience, a list of the defined terms, and the Sections where the definitions can be found, is set forth on the following page.

 

 

 

 


SectionDefined Term

4(c)      Additional Rent

7(a)    Allowance

8(a)           Alterations

31(c)         Bankruptcy Code

4(b)           Base Rent

1(c)           BOMA Standard

32              Broadstone

Intro         Building

32             CB

Intro        Commencement Date

1(e)          Contraction Date

1(e)          Contraction Notice

1(e)          Contraction Option

1(e)          Contraction Space

16             Contractor

20(c)        Default Termination

Intro        Effective Date

5(a)          Excess Utility Charges

1(f)           Expansion Space

1(g)          First Floor Space

Intro         First Lease

1(a)           Garage

4(f)           Index

2(a)          Initial Term

4(d)          Interest Charge

Intro         Landlord

42              Landlord's Offer Notice

SectionDefined Term

4(d)          Late Charge

Intro        Lease

3               Loss and Expense

46             Mortgagee Approval Contingency

20(e)         Net Rents

19(c)         Notice Date

1(a)           Premises

Intro         Prior Leases

1(a)           Project

42             ROFO

42             ROFO Space

1(e)           Real Estate Commissions

6(a)           Real Property Taxes

2(b)           Renewal Term

4(a)           Rent

1(c)           Rentable Square Feet

Intro         Second Lease

22              SNDA

46              SNDA Contingency

1(g)           Temporary Space

1(g)           Temporary Space Rent  

                      Commencement Date

Intro         Tenant

7(a)           Tenant Improvement Work

7(a)           Tenant Improvements

42             Tenant's Offer Notice

2(c)           Term

5(e)           Utility Statement

 

 

 

For and in consideration of the rents, covenants and agreements hereinafter set forth, Landlord and Tenant agree as follows.

 

1.     THE PREMISES

 

(a)     Effective as of the Commencement Date, Landlord shall lease to Tenant, and Tenant shall lease from Landlord, subject to the provisions of Section 1(g) below, approximately 62,213 Rentable Square Feet in the Building as shown on the floor plans attached hereto as “ Exhibit A ”.  The “Premises” consists of approximately 24,072 Rentable Square Feet on the eighth (8th) floor, 24,072 Rentable Square Feet on the third (3rd) floor and 14,069 Rentable Square Feet on the second (2nd) floor.  The term Building shall also include (i) the land upon which the Building is situated and which surrounds the Building and (ii) the connector walkway to Chase Tower.  Landlord has also constructed a parking garage for approximately 400 automobiles (the “Garage”) beneath the Building and extending beyond the footprint of the Building.  The Garage shall not be included in the term “Building”.  The Garage shall include all construction and space below the concrete floor that forms the ceiling of the Garage except all mechanical rooms which service the Building, all elevators which serve the Building and the Garage, and all vertical penetrations which extend from the Building such as the elevator shafts and plumbing related to the operation of the Building, which shall all be part of the Building.  The Building and the Garage are hereinafter referred to as the “Project”.

 

(b)     Landlord grants to Tenant the non-exclusive right to use the common areas of the Building including, but not limited to, elevators, stairwells and lobbies.

 

(c)     For the purposes of this Lease, “Rentable Square Feet” has been determined by using the Building Owners and Managers Association International’s Standard Method for Measuring Floor Area in Office Buildings, Reprinted as of 1996, ANSI, Z65.1-1996 Approved June 7, 1996 (the “BOMA Standard”).  The usable to rentable add on factor for the Building is approximately twelve percent (12%).

 

(d)      [Intentionally Deleted]

 

(e)     Provided Tenant is not in default pursuant to the terms of this Lease, Tenant shall have the one-time option (“Contraction Option”) to reduce the size of the Premises by up to ten percent (10%) at any time after October 1, 2014, by providing Landlord with a written notice (“Contraction Notice”) specifying the date (“Contraction Date”) that the contraction will be effective, which Contraction Date shall be not less than twelve (12) months following the Contraction Notice.  The Contraction Notice will also specify the space that will, as of the Contraction Date, no longer be covered by this Lease, which space is hereafter referred to as the "Contraction Space.”  The Contraction Space may be on any floor(s) of the Premises provided it is delivered to Landlord in a marketable configuration as reasonably determined by Landlord.   Should Tenant exercise the Contraction Option, then upon the Contraction Date, the Base Rent shall be reduced by the percentage determined by dividing the size of the Construction Space by the size of the Premises (as the Premises exists immediately before the Contraction Date); provided , however , Tenant shall for the remainder of the Initial Term pay to Landlord, as Additional Rent, in monthly installments at the same time and in the same manner as Base Rent, a monthly amount equal to twelve cents (12¢)   multiplied by the number of Rentable Square Feet comprising the Contraction Space.

 

(f)     The Premises includes approximately 5,020 Rental Square Feet on the 8 th floor of the Building, which space is currently occupied by Stonehurst Capital ("Expansion Space").  It is anticipated that the Expansion Space shall be vacated by July 31, 2009, and in any event, Landlord will deliver the Expansion Space broom clean and ready for commencement by Tenant of the Tenant Improvement Work by no later than October 31, 2009.

 

(g)     Pursuant to the First Lease, Tenant currently occupies approximately 16,379 Rentable Square Feet on the first floor of the Building ("First Floor Space").  From the date hereof until the Commencement Date, Tenant's occupancy of the First Floor Space shall continue to be governed by the First Lease.  From the Commencement Date until the date (the "Temporary Space Rent Commencement Date") that is three (3) months after the date Landlord delivers the Expansion Space to Tenant in accordance with Section 1(f) above, Tenant may occupy for no rental or other cost and expense whatsoever the portion of the First Floor Space (the “Temporary Space”) that comprises approximately 8,920 Rentable Square Feet and is located on the east side of the First Floor.  Tenant may also continue to occupy the Temporary Space from the Temporary Space Rent Commencement Date through and including March 31, 2010, by paying to Landlord an additional $5,000 of Base Rent per month.   Tenant will vacate and surrender the Temporary Space in broom clean condition by no later than April 1, 2010.  At the time Tenant surrenders the Temporary Space, Tenant shall also perform any restoration work to the Temporary Space that may be required by Sections 8(b) and 9 of this Lease.  From the Commencement Date through the date the Temporary Space is vacated by Tenant, the Temporary Space shall be included within the Premises.

 

2.       TERM

 

(a)     The initial term of this Lease (the “Initial Term”) shall commence on the Commencement Date and shall terminate on September 30, 2019.  Until the Commencement Date, all terms and conditions of the Prior Leases shall continue in full force and effect.

 

(b)     Tenant is hereby granted two options to extend the term of this Lease for two (2) consecutive periods of five (5) years each (each, individually a “Renewal Term” and collectively the “Renewal Terms”), upon the same terms, covenants and conditions applicable during the Initial Term, except the Base Rent shall be adjusted as set forth in Section 4(f) below.  Provided that Tenant is not in default of its obligations under this Lease, Tenant shall be permitted to exercise each option to extend this Lease by giving written notice to Landlord no less than twelve (12) months prior to the end of the Initial Term or first Renewal Term, as the case may be.  Time is of the essence with respect to Tenant’s extension notices.  If Tenant fails to give a valid extension notice, this Lease will expire at the end of the Initial Term or the first Renewal Term, as the case may be.

 

(c)     As used in this Lease, the word “Term” shall mean, collectively, the Initial Term and, to the extent Tenant exercises its renewal options, the Renewal Terms.

 

(d)     Provided Tenant is not in default pursuant to the terms of this Lease, Tenant shall have the one-time right to terminate this Lease as of October 1, 2016,   by providing Landlord with a written termination notice no later than   October 1, 2015.  Should Tenant exercise its termination right, in order for such termination to take effect, Tenant shall pay to Landlord by   October 1, 2016, an amount equal to the unamortized Allowance and the CB Commission, as amortized over the Initial Term at a rate of seven percent (7%) per annum.  Time is of the essence with respect to Tenant’s termination notice.

 

(e)     Prior to the Commencement Date the Prior Leases shall continue to govern all rights and obligations of Landlord and Tenant pertaining to the Building, except that from and after the date the Mortgagee Approval Contingency is satisfied, Tenant shall be entitled to commence the Tenant Improvement Work pursuant and subject to the provisions of Section 7 of this Lease.

 

3.       USE

 

(a)     Tenant may use and occupy the Premises only for general office purposes and accessory uses.  The Premises shall not be used for any other purpose without the prior consent of Landlord. Tenant shall not engage in any activity in the Premises that may require a retail or wholesale liquor license or permit.  Tenant shall not use or occupy the Premises for any unlawful purpose, and shall comply with all applicable laws, ordinances, regulations, and orders of all governments, governmental agencies and any other public authorities having jurisdiction over the Premises insofar as they relate to Tenant’s obligations under this Lease or its occupancy and use of the Project.  Landlord represents that all floors of the Building may be used for general office purposes under current law.

 

(b)     Tenant will have the right to contest by appropriate proceedings diligently conducted in good faith in the name of Tenant or, with the prior consent of the Landlord (which consent may be withheld by Landlord in its sole discretion), in the name of Landlord, or both, without cost or expense to Landlord, the validity or application of any law, ordinance, order, rule, regulation or legal requirement of any nature.  If compliance with any law, ordinance, order, rule, regulation, or requirement may legally be delayed pending the prosecution of any proceeding without incurring any lien, charge, or liability of any kind against the Premises, or Tenant's interest in the Premises, and without subjecting Tenant or Landlord to any liability, civil or criminal, for failure to comply, Tenant may delay compliance until the final determination of the proceeding.  Even if a lien, charge, or liability may be incurred by reason of any delay, Tenant may contest and delay, so long as (a) the contest or delay does not subject Landlord to criminal liability and (b) Tenant furnishes to Landlord security, reasonably satisfactory to Landlord, against any loss or injury by reason of any contest or delay.  Landlord will not be required to join any proceedings pursuant to this Section unless the provision of any applicable law, rule, or regulation at the time in effect requires that the proceedings be brought by or in the name of Landlord, or both.  In that event Landlord will join the proceedings or permit them to be brought in its name if Tenant pays all related expenses.  Tenant shall defend, indemnify and hold Landlord harmless from and against any and all claims, liabilities, suits, judgments, damages, demands, costs and/or expenses, including reasonable attorneys’ fees (collectively "Loss and Expense"), that may arise out of any exercise by Tenant of its rights pursuant to this Section 3(b).

 

4.     RENT

 

(a)     As used in this Lease, the term “Rent” shall mean all Base Rent and Additional Rent.

 

(b)     Tenant covenants and agrees to pay to Landlord base rent (“Base Rent”) in the following monthly amounts, subject to adjustment pursuant to Sections 1(e) and 1(g) above:

 

(i)     Commencing on the Commencement Date, and on the first day of each month thereafter to and including December 1, 2010, Tenant shall pay monthly installments of Base Rent equal to $108,872.75;

 

(ii)     Commencing on January 1, 2011, and on the first day of each month thereafter to and including December 1, 2011, Tenant shall pay monthly installments of Base Rent equal to $111,050.20

 

(iii)     Commencing on January 1, 2012, and on the first day of each month thereafter to and including December 1, 2012, Tenant shall pay monthly installments of Base Rent equal to $113,271.20;

 

(iv)     Commencing on January 1, 2013, and on the first day of each month thereafter to and including December 1, 2013, Tenant shall pay monthly installments of Base Rent equal to $115,536.62;

 

(v)     Commencing on January 1, 2014, and on the first day of each month thereafter to and including December 1, 2014, Tenant shall pay monthly installments of Base Rent equal to $117,847.35;

 

(vi)     On January 1, 2015, and on the first day of each month thereafter to and including December 1, 2015, Tenant shall pay monthly installments of Base Rent equal to $120,204.29;

 

(vii)     Commencing on January 1, 2016, and on the first day of each month thereafter to and including December 1, 2016, Tenant shall pay monthly installments of Base Rent equal to $122,608.37;

 

(viii)     Commencing on January 1, 2017, and on the first day of each month thereafter to and including December 1, 2017, Tenant shall pay monthly installments of Base Rent equal to $125,060.53;

 

(ix)     Commencing on January 1, 2018, and on the first day of each month thereafter to and including December 1, 2018, Tenant shall pay monthly installments of Base Rent equal to $127,561.74;

 

(x)     Commencing on January 1, 2019, and on the first day of each month thereafter to and including September 1, 2019, Tenant shall pay monthly installments of Base Rent equal to $130,112.97;

 

(c)     For purposes of this Lease, the term “Additional Rent” shall mean all monetary obligations owed by Tenant to Landlord under this Lease other than Base Rent.

 

(d)     Landlord shall have the right to impose, as Additional Rent, a late charge (the “Late Charge”) of $500 for any installment of Base Rent not received in collected funds by Landlord within ten (10) days after the date on which it was due.  If any sum due Landlord under this Lease is not received by Landlord in collected funds within ten (10) days after the date on which it was due, Landlord shall also have the right to collect, as Additional Rent, interest on that sum at a rate equal to the lesser of (i) two (2%) percent in excess of the prime lending rate of JPMorgan Chase Bank, or such other commercial bank as shall be reasonably selected by Landlord in the event that JPMorgan Chase Bank shall cease to provide a prime lending rate, commencing on the date the payment is due through and including the date the payment is received in collected funds, and (ii) the maximum rate permitted by applicable law (the “Interest Charge”).  If payment is made by check, funds shall be deemed to be collected on the day following delivery of the check to Landlord if the check is drawn on a local bank and otherwise five days after the check is delivered.

 

(e)     All payments of Rent required to be made by Tenant to Landlord hereunder shall be paid to Landlord in lawful money of the United States of America and, except as provided for herein, without any prior demand, set off or deduction whatsoever, and to the address set forth in Section 35 or at such other address as Landlord shall notify Tenant in writing.  If Landlord shall at any time accept any payment of Rent after it is due and payable, the acceptance shall not excuse delay in payment of Rent upon subsequent occasions or be construed as a waiver of any of Landlord’s rights under this Lease.  No payment or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent.  Payments of Rent, except as otherwise explicitly provided herein, shall be made without demand from Landlord.

 

(f)     For each Renewal Term, the Base Rent shall be increased by an amount determined by the following cost of living adjustment:  The cost of living adjustment for the first Renewal Term shall be based on the cumulative change from July 1, 2009 to July 1, 2019, in the Consumer Price Index published by the Bureau of Labor Statistics of the U.S. Department of Labor For All U.S. Cities, All Items, All Urban Consumers (1982-84 = 100) (hereinafter referred to as the “Index”).  The cost of living adjustment for the second Renewal Term shall be based on the cumulative change from July 1, 2019 to July 1, 2024, in the Index.  If the Index, as of July 1, 2019 or July 1, 2024, shows a percentage increase over the Index as of the July 1, 2009 or July 1, 2019, respectively, the Base Rent shall be multiplied by seventy-five percent (75%) of the percentage increase and the product so obtained shall be added to, and become part of, the Base Rent for the applicable Renewal Term.  In the event the Index ceases to use 1982-1984 = 100 as the basis of calculation, or if a substantial change is made in the terms or number of items contained in the Index, then the Index shall be adjusted to the figure that would have been arrived at had the manner of computing the Index in effect at the date of this Lease not been altered.  In the event such Index (or a successor or substitute Index) is not available, the parties shall use, as determined in good faith by Landlord, a reliable governmental or other non-partisan publication evaluating the information theretofore used in determining the Index.

 

5.       UTILITY CHARGES

 

(a)     Landlord shall, at Landlord's sole expense, provide heating and air-conditioning service to the Premises twelve hours (from 7 a.m. to 7 p.m.) each business day and 6 hours (from 9 a.m. to 3 p.m.) on weekends and on all holidays except New Year’s Day, Memorial Day, Fourth of July, Thanksgiving and Christmas.  Notwithstanding anything to the contrary contained in this Lease, charges for heating and air-conditioning the Premises in excess of those time periods ("Excess Utility Charges") shall be based on Landlord's estimate of actual costs, without profit to Landlord, and shall be deemed Additional Rent.

 

(b)     Not less than thirty (30) days prior to the Commencement Date, Landlord shall prepare and send to Tenant a preliminary estimate of Excess Utility Charges for the remaining portion of the then current calendar year.  Tenant shall pay such estimated amount as Additional Rent in three (3) equal monthly installments commencing on the Commencement Date.

 

(c)     Except as provided in paragraph (f) of this Section 5, on or before December 15 of each year during the Term, Landlord shall prepare and send to Tenant a preliminary estimate of Excess Utility Charges for the ensuing calendar year.  Tenant shall pay such estimated amount as Additional Rent in twelve equal monthly installments commencing January 1 of each year to and including December 1 of that year.

 

(d)     Except as provided in paragraph (f) of this Section 5, if Landlord fails to prepare and send to Tenant a preliminary estimate of Excess Utility Charges for any calendar year on or before December 15: (i) Tenant shall continue to pay each month an amount equal to the Excess Utility Charges paid on a monthly basis during the prior calendar year; and (ii) Landlord shall prepare and send to Tenant a preliminary estimate as soon thereafter as feasible.  Tenant shall, on the first day of the month following receipt of the preliminary estimate, pay as Additional Rent such estimated amount in equal monthly payments over the remainder of that calendar year plus any amount equal to the short-fall, if any, in the estimated Excess Utility Charges due for the preceding months of that calendar year.

 

(e)     Except as provided in paragraph (f) of this Section 5, within ninety (90) days after the expiration of each calendar year during the Term, Landlord shall submit to Tenant a statement of Excess Utility Charges for the prior calendar year (“Utility Statement”).  Should Landlord’s statement of Excess Utility Charges for the prior calendar year exceed the preliminary estimate, Tenant shall pay the excess on demand.  Should Landlord’s statement of Excess Utility Charges for the prior calendar year be less than the preliminary estimate, Landlord shall promptly refund the overpayment in accordance with the statement of Excess Utility Charges.

 

(f)     Landlord shall retain the right to separately meter the utility service to Tenant and to bill Tenant for the actual Excess Utility Charges.  In that event, the Excess Utility Charges shall be treated as Additional Rent and shall be paid by Tenant within fifteen (15) business days after Tenant’s receipt of an invoice from Landlord setting forth those charges.

 

          (g)      Notwithstanding the foregoing, Tenant shall have the right, within ninety (90) days following the submission by Landlord to Tenant of any Utility Statement, to dispute any Excess Utility Charges set forth in such Utility Statement by written notice to Landlord and to designate in such notice an independent electrical engineer or electrical consulting firm (“Tenant’s Consultant”) to make, at Tenant’s sole costs and expense a determination of the actual Excess Utility Charges.  If Tenant’s Consultant determines that the actual Excess Utility Charges are less than that set forth in the applicable Utility Statement, then Landlord shall promptly refund any overpayment previously made by Tenant.

 

6.     REAL PROPERTY TAXES

 

(a)     The term “Real Property Taxes” shall mean the total amount of all real estate taxes, special assessments, water and sewer charges, and other governmental charges, including any payments in lieu of real estate taxes, whether they be general or special, ordinary or extraordinary, foreseen or unforeseen, now or hereafter assessed, levied, or imposed upon the Project (including the Tenant Improvements and other leasehold improvements) together with any tax in the nature of a real property tax, any ad valorem tax on rent or any tax on income imposed in lieu of Real Property Taxes and any taxes and assessments which may hereafter be substituted for Real Property Taxes or be in addition to such taxes, assessments or charges and which are reasonably and equitably determined by Landlord to be a charge against the Project (including the Tenant Improvements and other leasehold improvements).  Unless any of the amounts described in the remainder of this sentence are imposed in lieu of Real Property Taxes, Real Property Taxes shall not include: (y) any income or excise tax with respect to the receipt of rent; or (z) any sales, net income, franchise, capital stock, estate, succession, excess profit, transfer, transfer gains or inheritance tax.

 

(b)     Except as otherwise permitted by applicable law in the case of protests of the amounts due, Landlord covenants and agrees promptly to pay all Real Property Taxes levied and assessed against the Project during the Term that may become due and payable, on or before the due date set for the Real Property Taxes.

 

(c)     If any business tax, rental tax, or other tax which is now or hereafter levied upon: (i) Tenant’s use or occupancy of the Premises; (ii) Tenant’s leasehold improvements; (iii) Tenant’s business at the Premises; or (iv) Landlord by virtue of Tenant’s occupancy of the Premises, or in the event that the mode of collection of any such taxes changes so that Landlord is responsible for collection or payment of such tax, any such taxes shall be paid by Tenant to Landlord as Additional Rent.

 

7.     TENANT IMPROVEMENTS

 

(a)     Landlord shall provide an allowance (the “Allowance”) of up to One Hundred Fifty Thousand Six Hundred Dollars ($150,600) for the cost of the work (“Tenant Improvement Work”) to be performed by Tenant to renovate the Premises, including, without limitation, the installation of cabling, signage, carpeting, drywall, ceiling tiles, furniture, fixtures and equipment (“Tenant Improvements”).  The Allowance may also be used towards the expenses associated with the physical move from the First Floor Space and/or into the Expansion Space, as well as interior design, architectural and engineering expenses.  If Tenant has not used any portion of the Allowance by the date that is six (6) months after the later of (i) the date that the Mortgagee Approval Contingency is satisfied or (ii) the date Landlord has approved all plans and specifications for the Tenant Improvements in accordance with Section 7(e), such unused portion of the Allowance will be forfeited by Tenant.  No portion of the Allowance may be used to offset Rent.

 

(b)     Tenant’s selection of coverings for exterior windows shall be subject to Landlord’s approval, with the intention that all coverings for exterior windows in the Building shall be uniform.

 

(c)     The Allowance will be available starting on the Commencement Date and shall be advanced no more frequently than once per month as paid invoices for the Tenant Improvement Work are presented for payment, together with mechanic’s lien waivers and such other documentation as Landlord shall reasonably request to substantiate the performance of the work for which the advance is sought.

 

(d)     Tenant shall cause the costs for the Tenant Improvements to be paid for in full and shall provide Landlord with a certificate to that effect promptly after completion of the Tenant Improvements.  Tenant shall subsequently provide Landlord with such other documentation as Landlord may reasonably request to substantiate Tenant’s certifications.

 

(e)     The Tenant Improvements shall constitute Alterations and, therefore, performance of the Tenant Improvement Work will be subject to all provisions of Section 9 below.  The Tenant Improvement Work may commence upon the later of (i) the date the Mortgagee Approval Contingency is satisfied, or (ii) the date Tenant obtains the Landlord’s written approval of the Tenant’s proposed plans and specifications for the Tenant Improvements.

 

8.     ALTERATIONS

 

(a)     Tenant shall make no alterations, installations, additions or improvements, including replacements of any items (herein collectively called “Alterations”) in or to the Premises or the Project without Landlord’s prior written consent, which consent shall not be unreasonably conditioned, delayed or withheld  Notwithstanding the foregoing, Tenant shall be permitted to make any cosmetic Alterations costing less than $20,000 in the aggregate in any given year without necessity of obtaining Landlord’s consent.  Landlord may condition its consent, if the requested Alteration would in Landlord’s reasonable opinion materially affect the structure, mechanical, plumbing, or electrical systems of the Project, upon Tenant’s agreeing to be responsible for all costs to integrate the Alteration with the structure of the Project or such systems.  All Alterations which affect the structure of the Project or the HVAC, electrical, mechanical, or plumbing systems of the Project shall be performed by contractors reasonably approved by Landlord at Tenant’s cost and expense, subject to the provisions of Section 7 above.  Upon Tenant’s request, Landlord shall provide Tenant with copies of full-floor mechanical, plumbing, and electrical plans for the Premises in paper and/or electronic format generally utilized in the industry (e.g., CAD format).  Prior to performing any Alteration, Tenant, at its sole cost and expense, must provide to Landlord, for its review and approval, a copy of the full-floor mechanical, plumbing, and electrical plans for the floor or floors on which the Alterations are to be made showing Tenant’s proposed Alterations.  Landlord agrees to cooperate in providing required access to work areas by a freight elevator and, if required, to the exterior and roof of the Building including, as provided in paragraph (b) of Section 13, allowing Tenant to erect an exterior lift.  Subject to the provisions of Section 7 above, Tenant shall reimburse Landlord, as Additional Rent, within 15 days following a demand therefor, for all reasonable and actual costs incurred by Landlord in connection with Alterations.

 

(b)     Alterations which are in the nature of replacements of items that are the property of Landlord shall become the property of Landlord except that, upon the termination of this Lease, Tenant may elect to remove all or part of such Alterations and replace them with materials of the same quality as those originally replaced.  Alterations which are not in the nature of replacements of items that are the property of Landlord shall remain the property of Tenant and may be removed by Tenant, provided the Alterations can be removed without causing material damage to the Premises or the Project.  In the event Tenant removes any Alterations, Tenant agrees to repair all damage to the Project caused by the removal and to restore the Project to a condition no less than its condition immediately prior to the removal, reasonable wear and tear excepted.  Upon termination of this Lease, any Alterations left on the Project shall become the property of Landlord.

 

9.     PERSONAL PROPERTY OF TENANT

 

Tenant shall remove all of Tenant’s personal property at the termination of this Lease.  If Tenant fails to remove any personal property, such items shall be treated as abandoned and become the property of Landlord, and Landlord may remove the same from the Premises at Tenant’s expense.  Tenant agrees to pay to Landlord as Additional Rent the cost of such removal, together with the rental that Landlord would otherwise have received if such personal property had been timely removed. Such Additional Rent shall be due and payable upon receipt by Tenant of a written statement of costs and rent from Landlord.  Notwithstanding anything to the contrary contained herein, Landlord hereby specifically disclaims, waives and disavows any statutory, contractual or common law lien or right of distraint, if any, attaching or related to Tenant’s personal property, including without limitation, all equipment, furniture, inventory or trade fixtures.  Upon the request of Tenant, Landlord shall execute and deliver any commercially reasonable real estate consent or waiver forms submitted by any vendors, lessors, chattel mortgagees or holders or owners of any trade fixtures or equipment setting forth the fact that Landlord waives, in favor of such vendors, lessors, chattel mortgagees or any holders or owners, any lien, claim, interest or other right superior to that of such vendors, lessors, chattel mortgagees, owners or holders.

 

10.     LIENS

 

(a)     If any lien is filed against the Premises or the Project for work, labor, services, or materials, furnished, performed, or supplied to Tenant (or claimed to have been furnished, performed, or supplied to Tenant), such lien shall be bonded or discharged by Tenant, at its sole cost and expense, within thirty (30) days after the date of filing by the payment thereof or by filing any bond required by law.  If Tenant shall fail to bond or discharge any such lien within said thirty (30) day period, Landlord may, at its option, discharge or bond the same.  Any amount paid by Landlord for that purpose and all reasonable expenses of Landlord, including but not limited to reasonable counsel fees, in defending any action or procuring the discharge of the lien with interest thereon at a rate equal to the Interest Charge from the date of payment shall be treated as Additional Rent and be paid by Tenant upon receipt by Tenant of a written statement of the costs from Landlord.

 

(b)     Tenant will defend, indemnify and hold Landlord harmless from and against any and all claims, damages and expenses (including reasonable attorneys' fees) incurred by Landlord arising from any lien filed against the Premises or the Project as a result of Tenant’s Alterations to, or Tenant’s occupation of, the Premises.

 

(c)     Notwithstanding paragraphs (a) and (b) of this Section, if any lien is filed against the Premises or the Project for work, labor, services, or materials furnished, performed, or supplied by Landlord at Landlord’s cost or at the request and cost of Tenant and Tenant has paid or reimbursed Landlord all costs and expenses due Landlord in connection with such work, that lien shall be sole responsibility of Landlord.

 

11.       MAINTENANCE BY TENANT

 

Tenant, at Tenant's sole expense, will keep the Premises, and the fixtures and equipment therein, in good order and condition (reasonable wear and tear excepted), will suffer no waste or injury thereto and will perform all non-structural maintenance and repairs to the interior of the Premises and all fixtures and equipment therein.  Notwithstanding the preceding sentence, Tenant shall not be liable for the maintenance and repair of the HVAC, elevators, plumbing, electrical systems serving the Building or the Premises, or the floors (except coverings) or roof, exterior walls and concrete ceilings serving the Building or the Premises.  To the extent any maintenance required to be performed by Tenant pursuant to this Section is covered by insurance proceeds or a condemnation award (or payment in lieu thereof) payable to Landlord, Landlord shall promptly pay those proceeds or award to Tenant upon receipt thereof.

 

12.     SIGNS

 

(a)     No sign, advertisement, or notice shall be inscribed, painted, affixed, or displayed on any part of the outside or the inside of the Building or on the windows without Landlord’s prior consent, which consent shall not be unreasonably conditioned, delayed or withheld, and then only in such place, number, size, color, and style (e.g., Building standard lettering) as is reasonably permitted by Landlord.  If any such sign, advertisement, or notice is exhibited without first obtaining Landlord’s consent as aforeseaid, Landlord shall have the right to remove the same and Tenant shall be liable for any expense incurred by the removal.  This paragraph (a) shall not be applicable to signs or notices visible only from within the Premises.  Furthermore, Landlord hereby acknowledges and agrees that all of Tenant’s existing signage shall be permitted under the terms of this Section 12.

 

(b)     Landlord agrees to display Tenant’s firm name and the name of any permitted subtenants of Tenant on the Building directory(ies) in the size and style of lettering used by Landlord.  Landlord agrees to display on the Building directory(ies) the name of each person working in the Premises, as selected by Tenant, and the name of each person working for any permitted subtenant occupying the Premises, as selected by that subtenant, but only to the extent that the number of names does not exceed one such name per 400 Rentable Square Feet of the Premises.

 

13.     DELIVERIES

 

(a)     No furniture, equipment, or other bulky matter of any description will be received into the Project except in the manner and during the time reasonably approved by Landlord.  All moving of furniture, equipment and other material within the public areas shall be under the control and supervision of Landlord who shall, however, not be responsible for any damage to or charges for moving the same.  Landlord shall have the right to determine the load capabilities of the elevators of the Building and the Garage and to determine whether Tenant’s property can be safely transported in the elevators.  Tenant agrees to remove promptly from the sidewalks adjacent to the Building, and from all common areas of the Project, any of Tenant’s furniture, equipment, or other material there delivered or deposited.

 

(b)     Landlord shall provide one freight elevator which, subject to maintenance problems which are promptly being addressed, shall be available during normal business hours to receive routine deliveries.  The freight elevator shall be available for the non-exclusive use of Tenant without cost to Tenant.  The freight elevator shall also be available during non-business hours for the non-exclusive use of Tenant on a first-come, first-served basis upon reasonable notice to Landlord.  If materials are so bulky as not to be reasonably accessible by freight elevator, Landlord shall cooperate in arrangements for exterior lifts to the Premises upon advance notice by Tenant and at Tenant’s sole cost and expense.

 

14.     TENANT’S EQUIPMENT

 

(a)     Tenant will not install or operate in the Premises, without first obtaining the prior consent of Landlord, which consent shall not be unreasonably conditioned, delayed or withheld, any electrically operated equipment or other machinery


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