Preview
INDEX NO. E2021005069
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2845319
Book Page CIVIL
Return To: No. Pages: 34
JOHN NACCA
30 W BROAD ST STE 406 Instrument: EXHIBIT(S)
ROCHESTER, NY 14614
Control #: 202109200641
Index #: E202100506'
Date: 09/20/2021
328 East Main LLC Time: 11:47:16 AM
Max To Go, Inc., D/B/A Aunt Rosie's
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
IAT
OUN NK 09 7q WV INDE&& NOE 2E21025065
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YONRO
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021
Exhibit “A”
PFO HITT
ROECOUNTY, ERK89,
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LEASE: AGREEMENT
‘THIS LEASHAGREEMENT (the Lease") is made'this ~~ a bs
—— 201 y and between Chestnut Square, LLC a New York limited li ability’ pany, :
having offices ;at 130 Linden Oaks Drive; Suite A, Rochester, New York, 14625 (the
“Landlord"), arid Max to: Go, Inc., a domestio corporation. with offices at 25 Gibbs Street,
Rochester,
New York 14604 (the-"Tenant"),
ARTICLE1
Premises.
Ui, Premises
‘The Landlord. does hereby demise and let to the Tenant and Tenant does hereb: y take md
hire ‘fom the Landlord that certain premises described as:
Approximately 1617 square feet of wseable space and 686 square feet of basement sorta Space
as identified on Exhibit A attached hereto. (the’ “Premises") located at 390 Bast Main’ Street,
Rochester, New York'itr the City of Rochester, County of Monroe and State of New York, (the
“Property"), together with all rights, privileges, easements and appurtenances belonging to the
Premises including the right'to use all common areas located at 350 East Main Street, Rochester,
NY joinitly with the Landlord and other Tenants, their agents, employees, customets and invitees,
‘The Premises shall include the use of a parking lot located at 61.N, Chestnut Street, Rochester,
NY which the Landlord leases from the City of Rochester.
The. Premises are subject and subordinate to all encumbrances, easement: agreerients, if any,
restrictions, covenants, zoning laws and governmental. or any other regulations, now or
hereafter affecting or governing the Premises. The. Premises shall not be deemed to include
either the land lying under the building or the exterior walls or roof of the building in
which the Premises is located or any area beyond the midpoint of any interior wall, Landlord
reserves unto itself, its successors and assigns, the-use of the land, walls and roof of the building;
together with the right to install, maintain, use, repair and replace pipes, ducts, conduits, wites
and structural elements’ leadin, ig through the Premises in locations which will not materially
interfere with Tenant's use:of the Premises.
ARTICLE 2
Term of Lease, Rent, Security Deposit
2i Tem = : =
This Lease shall commence on the: first day of April 2011 (the “Commencement: Date”), The
term of this Lease (the "Term") shall be for a period of five (5) years and two(2) months
commencing on the Commencement Date and. ending at midnight on May 31, 2016 (the
“Termination date”)
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22 Annual
Base Rent: -
is to pay the Annual Base
In addition to those further rents hereinafter provided for, Tenant
Rent of $19,500in equal monthly installments of $1,625 (ihe "Base Rent") beginning on
the first day of June 2011. Normal payments of Base Rent shall be due and payable to
Landlord on the first day of each and every month throughout the Term and any subsequent
renewal term(s) without notice or demand
from Landlord.
Should the fitst day of Tenant’s ocoupancy occur on any day other thar the first: any of.
the month, then the Base Rent for that portion:of the month shall be at per diem tate of
$54.17 per day. It is understood that-rent paymionts are due and payable on the first
day of each month during the term of this Lease and that a. chatge of two percent (2%)
of the monthly Base Rent due will be due and payable for any Rent not paid. by the
tenth. (10th) day of the month in which it is due and shall be collectible as Additional
Retit.
2.3 Security Deposit
Tenant is not required to delivera security deposit to the Landlord.
Article3
Common. Chi Late Payments
3.1 Common Charges
Beginning with calendar year 2013, Tenant shall pay its pro-rata share, as defined below;
of increases in Common charges applicable to the Property and included in. the Base
Rent. The charges’ will be limited to Tenant's pro-rata share of those costs in excess of
actual costs applicable to the Premises for the base calendar year 2012. "Common
Charges" shall be‘ defined as teal, estate taxes and assessments for the Property,
excluding all interest and penalties, and all costs incurred in connection. with
managing, riaintaining, operating, repairing and insuring the Property, Common Charges'shall
include a management fee of five per cent (5%) of the Annual Base Rent,
Common. Chatge’ payments shall be calculated by subtracting the base year 2012
Common Charges from the Common Charges for the then current year. Beginning in
2013, and each year thereafter, the Landlord shall fumish to Tenant, a. written
statement setting forth Landlord's estimate of Tenant's pro-rata share. of the Common
Charges for such year, along with the total of those costs for the Tenant's base year
of 2012, Beginning in 2013, Tenant shall pay to Landlord on the first day of each month
during suck year'a- payment in an-amount-equal-to-1A2-of the-Landlord's estimate-of
Tenant's pro-rata share of the Common Charges for such year over the base year,
Tenant’s pto-rata share of incréases in Comution Charges shall be 8.93 percent (1617sf divided
by 18,200sf).
If Landlord shall fail to furnish such estimate for the year subsequent to the
commencement, then (a) until the first day of the month following the month in. which
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such estimate is furnished to Tenant, Tenantenhshall pay to Landlord on the first day of
each month an amount equal to the monthly sum payable by Tenant to Landlord under
this Section in respect of the last month-of the preceding yeaty (b) promptly after such,
estimate is furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of the Common Charges made: forthe previous year were: greater or less
than the actual costs of the Common Charges paid for that:year, and (i) if there shall be:
a deficiency between the estimated costs and. the actual costs, Tenant shall pay the
amount within ten (10) days” after demand or(li)- if~there~shall have~been«an
overpayment, Landlord shall promptly either refund to Tenant the amount of permit
Tenant to credit the amount against subsequent payments. under this Article; and (c) on
the fitst.day of the morith following the motith in which such estimate is furnished to
Tenant, and monthly thereafter throughout the remainder of such year, Tenant shall
pay to Landlord an amount equal to 1/12th of the Common Charges shown on the new
estimate.
For purposes of this Lease, a lease: year shall mean twelve (12) consecutive calendar
months, with the first lease year cottmencing on. the Commencement Date and éach
succeeding lease year commencing upon the anniversary dateof the first lease year.
Tenant acknowledges that the Common Charges for the Property may increase from time
to time and Tenant.agrees to pay its:pro-rata share of the increased Common Charges,
All. Common Charges payable by Tenant to Landlord under this Lease shall be prorated
for any partial year in which this Lease is in effect.
3.2 Audit Rights
Landlord.shall maintain for a period of at least four (4) years following the end of a fiscal year,
complete and accurate books and records of all Common Charges and pro-rata calculations
for the: Property. Tenant: or its financial representative shall have the tight, with reasonable
notice, fo inspect, copy and audit the books and records.
3.3 Non-Waiver
Landlord's failtire to render a statement with respect to ‘any Common Charges or any other rents
due: hereunder shall not: prejudice Landlord's right to thereafter render a statement with respect
to any subsequent amounts due hereunder.
3.4 Additional Rent
In the event of Tenant's nonpayment of any Base: Rent, Common Charges, any other charge
Tenant agrees to pay to Landlord pursuant to the provisions of this Lease, any’ such payments
shall. be.payable.as additional rent (the.'"Additional. Rent") and the paymentof such amounts
shall be enforceable by Landlord in the-same manneras the payment of Base Rent (collectively,
thé Basé Reiit, the Additional Rent, and the Common Charges are referred to hereiti as (the
"Rent''), Additional Rent shall be paid by Tenant within ten (10) days after Landlord's written.
demand ‘thereof, A monthly late charge of 2%. of the Additional Rent due shall be due and
payable for any Additional Rent not paid within ten (10) days after such payment is due.
Landlord shall have the right to apply any payments made by Tenant firstto any deficiency in the
payment of interest-and late charges as provided for herein. Tenant's obligation to pay any amount
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due-under-this
Lease shall survive the expiration and/or termination
of this Lease.
ARTICLE 4
Use
Premises
of
4.1 Use of Premises
Tenant shall use the-Premises soles arestonront and deliepiess mart and shall be ape for
business 0 fewer! than five days per week, excluding national holidays and remain open. for
business from at least 7am until at least 3pm. each, and every day of the five day business week,
Further, Tenant shall be obligated to serve breakfast and lunch every
day that Tenant is open and
dinner on Friday and at least one other evening.Tenatit shall not use or permit, or suffer the use
of the Premises for any other business or purpose. Tenant shall promptly execute and comply
with all statutes, or orditiatices, rules, orders, regulations and requirements of the Federal, State
and Local Governments and of any: and all their Departments and Bureaus applicable to said
Premises, for the correction, prevention and abatement of nuisatices ot other grievances in, upon,
or connected with said Premises during the Term. Tenant shall also promptly comply with
and execute.all rules, orders and regulations of the New York Board of Fite Underwriters: or
atiy other similar body, at the Tenant's own cost and expense with tespéct to Tenant's use of the
Premises, Tenant further agrees that it shall allow no conditions of noise, vibration or any other
conditions to occur within the Premises which would be either objectionable to other Tenants of
the Property or which would cause any damage to the. Premises. Tenant, upon paying the Rent
and performing the other terms, provisions,
and covenants of this Lease, shall and may, at. all
times during the term of the Lease, peaceably: and. quietly: have; hold,. and enjoy the Premises.
Landlord shall comply with all laws, regulations, rules, orders and governmental requirements
applicable to the Property, excluding the Premises and any areas outside the Premises
that Tenant exclusively uses.
4.2 Other Business Practices:
@) Tenant shall keep the Premises and other areas allocated for the sole use of
Tetiant in good, neat and clean condition,
() Tenant shall load and unload its: merchandise, equipment and supplies and
temove its rubbish only by way'of the truck loading area and service doors designated
by Landlord for Tenant's use;
(c) Tenant shall. permit no act or practice which may tend to injure the building
occupied by Tenant or its equipment, or allow either to be a nuisance to
other tenants, or obstruct the sidewalks or areas outside the Premises.
4.3 Surrender of Premises
Tenant shall deliver up and surrender to Landlord, or to its successors or assigns,
possession of the Premises at the expiration of the Term, or any other expiry thereof,
broom clean and in.as good condition. and repair as originally found, normal wear and tear,
loss by fire or other casualty specifically excepted.
Upon expiration or other termination of this Lease, Tenant shall not be entitled to remove
any alterations or impravements to the Premises such as paneling, ceilings, light fixtures
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and. the like, except with the Landlord's express consentin wtiting, and all suc mS
not permitted to be removed shall thereupon become the property of Landiord. All non-
permanent partitions, trade fixtures and personal property of the Tenant shall not be
considered. additions. or improvements under this provision, and may at the option of
Tenant, be retioved at the expiration or other termination of this: Lease. Tenant,
névertheless, shall be:responsible to repair any damage to the: Premises caused by such
removal. Such ite Hor ms
femoved stiall become the property of Landlord at Landlord's
option, In the: eveint-Landlord elects not to retain the property Tenant failed to retiove
upon expiration or other termination, the property shall be removed and disposed of at
‘Tenant's expense.
ARTICLES
Signs
5.1 Signs
The Tenant: shall neither place, or catise or allow to be placed any sign or signs of any
kind whatsoever at, in or about the entrance to said Premises, thé Propeity, ot any partof
same, except in or at such place’or places as may be indicated by Landlord and consented
to by Landlord. in writing, which consent’ shall not be unreasonably withheld. or
delayed. All signs shall conform to a style approved by Landlord, which approval
shall not be unreasonably withheld. or delayed. All permits or other necessary
permissions as well as:-all. costs associated with said items shall be borne by Tenant.
In the. event the Landlord or the Landlord's representative shall deem it necessary to
femove any such sign or signs’ in order to paint any portion of the Property ot make any
other tepairs, alteration’ oi iniproveméents in or upon the Property, the Landlord shall
have the right to do so, providing the same are removed and replaced at Landlord's
expense, whenever said tepairs, alterations or improvemtierits shall be completed, Tenant may
place temporaty signs on the Premises or building during the period in which the
permanent signs are removed by the Landlord or its representatives:
ARTICLE 6
Insurance
6.1 Insurance:
Tenant, at its. sole cost‘and expense for the mutual benefit of Landlord and Tenant, shall
maintain personal injury and property damage liability insurance against claims: for
personal injury,.death-or property damage occurring on, in.or.about the Pretis es.during
the term of this Lease of not less than One Million Dollars ($ 1,000,000.00) in respect
of personal injury, death or property damage. Within five (5)-days after the execution
of this Lease, but in no event subsequent to taking possession of the Premises, Tenant
shall provide Landlord with.a certificate containing evidence of such coverage with
Landlord named on the certificate, and Tenant shall thereafter provide Landlord with
appropriate. evidence of payment of premiums for said coverage upon each anniversary
date of said policy. In the event that Tenant fails to provide the certificate as set forth
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herein or-fails-to-provide evidence. of such coverage at least fifteen (15) days priot to the.
exp! tation date of each expiring policy, Landlord may obtain such insuranceat Tenants sole
cast and expense-and chatge the costs theteofto Tenant as Additional Rent,
Landlord shall keep the property insured against loss or damage: by risks now or
hereafter covered by "All Risks" coverage in an amount at least equal to the teplacement
cost of the Property, as long as this lease is in effect.
6.2 Increases in Fire Insurance Premium
Tenatit. shall not occupy, or change the oddupaney for any purpose deemed extra-
hazardous on: account of fire, under the penalty of damages and forfeiture and in the
event of a breach thereof, the Term herein shall. immediately cease and terminate at the
option of the Landlord as if it were the expiration of the: otiginal term, or at the
Landlord's option, Tenant, covenants and. agrees to promptly pay to Landlord as
Additional Rent, upon demand, the amount of any increase in the rate of insurance on the
Premises or any other part. of the Premises that ,but. for Tenant's act(s) of Tenant's
permitting certain activities to take place, results in an increase in the rate of insurance then
in effect
6.3 Waiver of Subrogation
Each party waives on behalf of itself, and anyone claiming through or under them,
by way of subrogation or otherwise, and on behalf of the insurers of such. party's
property, any and all claims of rights of subtogation, of any such insurer against the
other party for loss of or damage to the property so insured other than loss or damage
resulting from thé willful act of such other party, and each party hereby agrees to
maintain insurance upon its property, it being understood, however, (a) that such waiver
shall be ineffective as to any insurer whose policy of insurance does not authorize such
waiver, (b) that it shall be the obligation of éach patty seeking the benefit of the
foregoing waiver to request the other party (i) to submit copies of its insurance, and
(ii) in case such waiver results in an additional chargé from the insurer, additional
chatge shall be paid by the party requesting the benefit of said waiver; (c) that no party
shall be Hable to the other under clause (b) hereof except for willful failure to comply with
anly tequest. pursuant to said clause (b).
6.4 Policies
All insurance provided
e in this Article 6 shall be affected-under valid and enforceable
do business
policies issued by insurers 0: f recognized responsibility which are: licensed to
inthe Site
vote of New ene
All of Tenant's policies. of “insuratige as required ii this Atticle 6 shall name Landlord,
Owner and Tenant as the insured as their respective interests may appear. Tenant
agrees that such policies shall also be made payable, if required by Landlord, to a first
mortgagee. Hach such policy shall contain an agreement by the inswrer that such policy
shall not be canceled. without at least thitty (30) days prior written notice to Landlord
and to any mortgagee.
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ARTICLE 7
Damage by Fire, Ete,
7.4 Dainage by Fite
In the event the Pretinises shail at any fine during:the Term be substantially or totally
destroyed by fire or other casualty, or shall be rendered partly untenantable, and the
repair and rehabilitation of the Premises shall be of an extent requiring more than one
hundred twenty (120) days for its: completion from the: date of damage or destruction,
ther this Lease, at the option of either Tenant of Landlord, may be terminated and the
obligation to make rent payrtients and. any other sums owing under this Lease, so long as
said payments owed were not in default as'of the dateof damage or destruction, thereupon
shall cease as of the date of such damage of destruction.
In the eveiit the Premises are subject to repair and rehabilitation within said one hundred
twenty (120) days, this Lease shall not terminate and the rent hetein and any sunts
owing’ hereutider shall be abated in the proportion that the amount of space which is
not available to and usable by Tenant as a result of such casualty and/or the work and
labor incidental to its rehabilitation bears to all of the space in the Premises,
In the event’ the Prertises are completely or partially destroyed or so damaged by fire or
other hazard that the Premises cannot be reasonably used by Tenant or can only be
partially used by Tenatit and the repair and: rehabilitation is expected to exceed. one
hundred twenty (120) days and this Lease-is not terminated as above provided in the first
paragraph of this Article, there shall be no abatement of Rent, it being understood and
agreed that the Tenant at its discretion, cost and expense shall procure insurance
necessary‘ to protect itself against any interruption. of its business. Tenant agrees that in
case of fire or other casualty’ tesulting in damage to the Premises, it will give
immediate notice to Landlord, who shall-thereupon,. with expedition and in good and
workmanlike manner, after the damage, enter upon and undertake the repair and
rehabilitation, as is necessary to restore the Premises to their original condition before
such damages, provided that this Lease has not been, terminated as provided in the first
patagraph of this Article 7.
In determining what constitutes reasonable dispatch, consideration shall be given-to delays
caused by strikes, acts of God, adjustments of insurance and other causes beyond the Landlord's
contol
~
ARTICLE 8
Indemnity
8.1 Indemnification by Tenant
Tenant does hereby indemnify, defend and save Landlord (and such other persons as
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are in. ptt f estate Landlord) harmless from and against any and all
claims, actions, damages, liabill 'd expense in contiection with loss of ‘life,
personal injury of damage to property arising from or out of any occurrence in, upon or at
the: Premises, from or out of the occupancy or usé by Tenant of the Premises or any part
thereof, from’ Tenant's negligence, willful and wanton conduct or failure to do any repaits
which Tenant is obligated to make under this: Lease, or occasioned wholly ot in. part by
any act or omission of Tenant, its agents, contractors or employees, invitees and
‘giiests. “In cai Landlord (and such~other-persons~as are-in privity of estate: with
Landlord) shall be: made a-party to any litigation commenced by or against Tenant,
Tenant agrees to protect and hold Landlord. harmless and to pay all costs, expenses and.
reasonable attomey's fees inourted or paid by Landlord in connection with such
litigation. Tenant agrees: also to pay all costs, expenses and. reasonable attorney's fees
that may be incurred or paid by Landlord in enforcing the covenants and agreements in this
Lease.
Landlord is exempt: from any and all liability for any damage or injury to person or
property caused by of resulting from steam, electricity, gas, water, tain, ice or snow,
or any leak from or into any part: of said building or fro im any damage or injury
resulting ot arising from any: other cause-or happening whatsoever, unless caused by the
negligence or willful misconduct. of the Landlord its agents, contractors, employees or
invitees.
8.2. Indemnification by Landlord
Landlord does hereby indemnify, defend and save Tenant harmless from and against
any and all claims, actions, damages, lability atid expeuse in connection with the loss of
life, personal injury, and/or damage to property occasioned wholly or in part by any
gross negligence or willful. misconduct by the Landlord, its agents, contractors,
employees or invitees. In case Tenant, without-fault on its part, shall be made a party
to any litigation commenced against Landlord, then Landlotd agrees to protect and hold
harmless Tenant and to pay reasonable: costs and expenses, including attorney's fees
incurfed by the Tenant in eonnestion with such litigation,
ARTICLE 9
Repairs and Maintenane
9.1 Landlord's Obligation to Repair
Landlord agrees to repair and maintain in good order and serviceable condition, the
outside walls, structure, roof and foundation. of the building containing the Premises,
along. with-utilities
and/or. plumbing. systems owned. or controlled by the Landlord
outside of the Premises, the lawn area and parking areas and. driveways, including but not
limited to: sealing, striping, and patching,
There is excepted from the aforementioned. covenant the following, which shall be Tenant's
responsibility:
1. Repair of damage caused by the willful act or omission of Tenant, its employees,
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agents, contractors, customers, invitees.and licensees;
2. Repairs whicthe h.ar eity of T ‘enatit.in accordance with Seotion. 92.
responsibil
Landlord shall not be required to commence any such repair until a reasonable time after
written notice from Tenant that the same is necessary:
Tenant agrees that Landlord. ahd’ Landlord’ agents and other vepre sentatives’shall have
the right to enter into: and upon Premises, of any: part thereof , at all reasonable hours
for the purpose of examining the same, or maki ing such repaifs or alterations therein as
may be necéssary for the safety and preservati jon thereof, provided Landlord shall give
business on the
priot notice to Tenant and shall not negativ ely interfere with the Tenant's
Premises, so long as the Landlord does not determine the situation to be an emergency.
9.2 Tenant's Obligation to Repair
Tenant agrees to repair all damage caused by or res sulting from
the tegligence or
customers, invitees,
improper conduct of Tenant, its employees, agents, contractors,
including but. not
Hicetisees, and maintain in good order: and condition the Premises,
Premise s, including doors, windows,
lintited to the nonstructural portions of the
floor coverings and any plumbing ‘and electrical systems specific to the
ceilings,
Premises.
to the
Further, Tenant shall make all. repairs, alterations, additions or replacéments the
authorit y, shall keep
Premises required by any order or regulation of any p ublic and
any licenses
Premises equipped with all safety appliances so required, and shall procure
permits required for atty use of the Premises by Tenant.
Landlord may
If repairs are required to be made by ‘Tenant: pursuant to the terms hereof,
same forthwith,
demand (but. shall not be required to do so ) that Tenant make the
and if Teviant refuses or neglects to commence such. tepairs and
complete the same with
to be made
reasonable dispatch after such demand, Landlord may mi ake or cause such repairs to its
damag e that may accrue
and shall not be responsible to Tenant for any loss or
business by reason thereof, atid if Landlord mi akes or causes: sich repairs to be made,
Tenant agrees that it will, on demand, pay as Addditional Rent
to Landlord the: cost
shall have the: remedies
thereof, and if’ Tenant’ shall default in such payment, Laridlord
provided in Article 14.
ARTICLE 10
Utilities
10:4: Utilities-and-Services~: -
to
Landlord shall furnish all utilities for the Premises including, but not limited.
electricity, water, sewer and gas used in and upon the Premises.
separately
Tenant’s electrical and water usage applicable to the Premises shall be
d
metered and payable directly to the utility providing such services, Landlor
the Premises.
shall not be responsible for any interruption of business or damage to
9.
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resulting from interruption of utility services caused by any utility company or governmental
resin) a0).
ARTICLE 11
Remodeling,
a Possegsion, and Alterations
11:1 Improvements
Tenant shall be responsible to make any and all improvements to the Premises at
Tenant’s sole expense. Tenant shall furnish Landlord with a complete set of drawings
detailing the proposed improvements to the Premises and shall not commence
construction of such impidvements until approved by Landlord, whose approval shall not
be unreasonably withheld or delayed. All apptoved construction. shall be in accordance
with cutrent building codes and be performed in a workmanlike manner.
ARTICLE 12
Common Areas
12.1 Definitions
The tetm "Common Areas" shall be deemed to include that part of the Property thatis not
leased to a tenant or which by its nature is not leasable to a tenant, The areas shall
include, but not. necessarily be limited to, all areas, including access roads, driveways,
retaining and extetior walls, landscaped-areas, truck service ways, pedestrian walks and
outside courts and roofs provided by Landlord for the common or joint use and
benefit of all Tenants of the Property, their employees, agents, custotnets and other
invitees.
12.2 Tenant’s Right fo Use Pedestrian Walks
Landlord shall perttit Tenant to place tables and chaits along the pedestrian walkways and
sidewalks that form the parameter areas facing the restaurant. Tenant shall be solely responsible
to secure all necessary permits for stich use by the governmental agency empowered. to apptove
such use, Tenant’ shall hold Landlord harmless from any claim of injury ot hatm of every
conocivable natute arising from Tenant’s use of the pedestrian. walkways and/or sidewalks.
ARTICLE 13
Eminent-Domain-
13.1 Eminent Domain
If title to more than twenty percent (20%) of the Property, or the Premises shall be
taken by condemnation or the right of eminent. domain, or by agreement between
Landlord and those authorized to exercise sich right (herein collectively referred to as
the. "condéinnation proceedings") so as to render the Premises unusable for its intended
10
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021
:
purpose;. then this Lease shall. terminate as. of the date of vesting of title to the
shall be
condemning authority, and Rent and all other charges under this Lease
apportioned as of the'date of vesting of titie to the condemning authority:
In the event. of the partial taking that in Tenant's reasonable estimation shall have a
material adverse impact on Tenant's business activities upon the Premises, then Tenant
‘shall
3 eS| have the option to cancel
this Lease within ninety (90) days (but only within such
90d ays) after stich taking and Rent aid any other charges hereunder shall be paid only
fo the time when Tenant suerenders possession of the Premises, or Tenant. may elect to
additional
continue in possession, of that portion of the Premises not.so taken, and. rent,
rent and atiy other charges hereunder shall be reduced in propoition to the area taken.
13.2 Landlord Entitled to Award
Out of any award. for any such taking of the Premises or any part thereof, Landlord
that
shall be entitled to receive and retain the amounts awarded for such Premises, except
Tenant shall be entitled to receive and retain only any amounts which may be
specifically awarded to it in any such.condemnation proceedings because of the taking
of its trade fixtures and its leasehold iniprovements and such business loss as Tenant
shall specifically and separately © stablish, including without limit moving expenses but
not otherwise. It is understood in @ he event of the termination of this Lease as aforesaid,
Tenant shall have no claim against the Landlord for the value of any unexpired term of
its Lease and no tight or claim to any part of the award on account thereof. Tenant
hereby waives each such claim or right and assigns any such claim or tight to
Landlord.
13,3 Abatement
Except as provided in Section 7.1 of this Lease, no diminution or abatement of Rent, or
other compensation, shallbe claimed or allowed for inconvenience or discomfort arising
from the making of repairs of improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a government authority
provided there is no material interference with Tenant's business on the Premises, With
respect to the various "services", if any, herein expressly or impliedly agreed to be
furnished by the Landlord to the Tenant, it is agreed that there shall bé no diminution or
abatement of the rent, or any-othet compensation; for interruption or curtailment of stich.
"services" when such interruption or cuttailment shall be due to accident,
alterations or repairs desirable or necessary to be made or to inability or difficulty
in seouring supplies or labor for the maintenance of such "services" or to some
other cause provided there is no material interference with Tenant's business. on the
Premises. No such interruption ot curtailment of any such. "service" shall be deemed
a-constructive-evietion -provided -there- is no. material interference. with. Tenant's
business on: the Premises, The Landlord shall not be: requited to furnish and the Tenant
Preview
INDEX NO. E2021005069 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2845319 Book Page CIVIL Return To: No. Pages: 34 JOHN NACCA 30 W BROAD ST STE 406 Instrument: EXHIBIT(S) ROCHESTER, NY 14614 Control #: 202109200641 Index #: E202100506' Date: 09/20/2021 328 East Main LLC Time: 11:47:16 AM Max To Go, Inc., D/B/A Aunt Rosie's Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK IAT OUN NK 09 7q WV INDE&& NOE 2E21025065 069 YONRO NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021 Exhibit “A” PFO HITT ROECOUNTY, ERK89, 097207 WV INDEEXNG E 282015005 069 NYSCEF rs DOG... NO CHa Ya oe ° A5a~ Rett veQOR(pee i €B0 20/202 1If ' EK sys istes04 LEASE: AGREEMENT ‘THIS LEASHAGREEMENT (the Lease") is made'this ~~ a bs —— 201 y and between Chestnut Square, LLC a New York limited li ability’ pany, : having offices ;at 130 Linden Oaks Drive; Suite A, Rochester, New York, 14625 (the “Landlord"), arid Max to: Go, Inc., a domestio corporation. with offices at 25 Gibbs Street, Rochester, New York 14604 (the-"Tenant"), ARTICLE1 Premises. Ui, Premises ‘The Landlord. does hereby demise and let to the Tenant and Tenant does hereb: y take md hire ‘fom the Landlord that certain premises described as: Approximately 1617 square feet of wseable space and 686 square feet of basement sorta Space as identified on Exhibit A attached hereto. (the’ “Premises") located at 390 Bast Main’ Street, Rochester, New York'itr the City of Rochester, County of Monroe and State of New York, (the “Property"), together with all rights, privileges, easements and appurtenances belonging to the Premises including the right'to use all common areas located at 350 East Main Street, Rochester, NY joinitly with the Landlord and other Tenants, their agents, employees, customets and invitees, ‘The Premises shall include the use of a parking lot located at 61.N, Chestnut Street, Rochester, NY which the Landlord leases from the City of Rochester. The. Premises are subject and subordinate to all encumbrances, easement: agreerients, if any, restrictions, covenants, zoning laws and governmental. or any other regulations, now or hereafter affecting or governing the Premises. The. Premises shall not be deemed to include either the land lying under the building or the exterior walls or roof of the building in which the Premises is located or any area beyond the midpoint of any interior wall, Landlord reserves unto itself, its successors and assigns, the-use of the land, walls and roof of the building; together with the right to install, maintain, use, repair and replace pipes, ducts, conduits, wites and structural elements’ leadin, ig through the Premises in locations which will not materially interfere with Tenant's use:of the Premises. ARTICLE 2 Term of Lease, Rent, Security Deposit 2i Tem = : = This Lease shall commence on the: first day of April 2011 (the “Commencement: Date”), The term of this Lease (the "Term") shall be for a period of five (5) years and two(2) months commencing on the Commencement Date and. ending at midnight on May 31, 2016 (the “Termination date”) INDi@€xNO E 26219150605 06: FLELHHONROE COUNTY CLERK 0972072021 11:42 AM NYSCEF DOG,. NO. 9 RECEIVED NYSCEF: 09/20/2021 22 Annual Base Rent: - is to pay the Annual Base In addition to those further rents hereinafter provided for, Tenant Rent of $19,500in equal monthly installments of $1,625 (ihe "Base Rent") beginning on the first day of June 2011. Normal payments of Base Rent shall be due and payable to Landlord on the first day of each and every month throughout the Term and any subsequent renewal term(s) without notice or demand from Landlord. Should the fitst day of Tenant’s ocoupancy occur on any day other thar the first: any of. the month, then the Base Rent for that portion:of the month shall be at per diem tate of $54.17 per day. It is understood that-rent paymionts are due and payable on the first day of each month during the term of this Lease and that a. chatge of two percent (2%) of the monthly Base Rent due will be due and payable for any Rent not paid. by the tenth. (10th) day of the month in which it is due and shall be collectible as Additional Retit. 2.3 Security Deposit Tenant is not required to delivera security deposit to the Landlord. Article3 Common. Chi Late Payments 3.1 Common Charges Beginning with calendar year 2013, Tenant shall pay its pro-rata share, as defined below; of increases in Common charges applicable to the Property and included in. the Base Rent. The charges’ will be limited to Tenant's pro-rata share of those costs in excess of actual costs applicable to the Premises for the base calendar year 2012. "Common Charges" shall be‘ defined as teal, estate taxes and assessments for the Property, excluding all interest and penalties, and all costs incurred in connection. with managing, riaintaining, operating, repairing and insuring the Property, Common Charges'shall include a management fee of five per cent (5%) of the Annual Base Rent, Common. Chatge’ payments shall be calculated by subtracting the base year 2012 Common Charges from the Common Charges for the then current year. Beginning in 2013, and each year thereafter, the Landlord shall fumish to Tenant, a. written statement setting forth Landlord's estimate of Tenant's pro-rata share. of the Common Charges for such year, along with the total of those costs for the Tenant's base year of 2012, Beginning in 2013, Tenant shall pay to Landlord on the first day of each month during suck year'a- payment in an-amount-equal-to-1A2-of the-Landlord's estimate-of Tenant's pro-rata share of the Common Charges for such year over the base year, Tenant’s pto-rata share of incréases in Comution Charges shall be 8.93 percent (1617sf divided by 18,200sf). If Landlord shall fail to furnish such estimate for the year subsequent to the commencement, then (a) until the first day of the month following the month in. which 2 INDEexNO E202791D5065 069 FLELHHONROE COUNTY CLERK 0972072021 11:42 AM NYSCEF DOG: NO. 9 RECEIVED NYSCEF: 09/20/2021 } i such estimate is furnished to Tenant, Tenantenhshall pay to Landlord on the first day of each month an amount equal to the monthly sum payable by Tenant to Landlord under this Section in respect of the last month-of the preceding yeaty (b) promptly after such, estimate is furnished to Tenant, Landlord shall give notice to Tenant stating whether the installments of the Common Charges made: forthe previous year were: greater or less than the actual costs of the Common Charges paid for that:year, and (i) if there shall be: a deficiency between the estimated costs and. the actual costs, Tenant shall pay the amount within ten (10) days” after demand or(li)- if~there~shall have~been«an overpayment, Landlord shall promptly either refund to Tenant the amount of permit Tenant to credit the amount against subsequent payments. under this Article; and (c) on the fitst.day of the morith following the motith in which such estimate is furnished to Tenant, and monthly thereafter throughout the remainder of such year, Tenant shall pay to Landlord an amount equal to 1/12th of the Common Charges shown on the new estimate. For purposes of this Lease, a lease: year shall mean twelve (12) consecutive calendar months, with the first lease year cottmencing on. the Commencement Date and éach succeeding lease year commencing upon the anniversary dateof the first lease year. Tenant acknowledges that the Common Charges for the Property may increase from time to time and Tenant.agrees to pay its:pro-rata share of the increased Common Charges, All. Common Charges payable by Tenant to Landlord under this Lease shall be prorated for any partial year in which this Lease is in effect. 3.2 Audit Rights Landlord.shall maintain for a period of at least four (4) years following the end of a fiscal year, complete and accurate books and records of all Common Charges and pro-rata calculations for the: Property. Tenant: or its financial representative shall have the tight, with reasonable notice, fo inspect, copy and audit the books and records. 3.3 Non-Waiver Landlord's failtire to render a statement with respect to ‘any Common Charges or any other rents due: hereunder shall not: prejudice Landlord's right to thereafter render a statement with respect to any subsequent amounts due hereunder. 3.4 Additional Rent In the event of Tenant's nonpayment of any Base: Rent, Common Charges, any other charge Tenant agrees to pay to Landlord pursuant to the provisions of this Lease, any’ such payments shall. be.payable.as additional rent (the.'"Additional. Rent") and the paymentof such amounts shall be enforceable by Landlord in the-same manneras the payment of Base Rent (collectively, thé Basé Reiit, the Additional Rent, and the Common Charges are referred to hereiti as (the "Rent''), Additional Rent shall be paid by Tenant within ten (10) days after Landlord's written. demand ‘thereof, A monthly late charge of 2%. of the Additional Rent due shall be due and payable for any Additional Rent not paid within ten (10) days after such payment is due. Landlord shall have the right to apply any payments made by Tenant firstto any deficiency in the payment of interest-and late charges as provided for herein. Tenant's obligation to pay any amount 3 INDEEXNG E 28295005 069 FLEE HONROE COUNTY CLERK 0972072021 11:42 AM NYSCEF DOG.« NO. 9 RECEIVED NYSCEF: 09/20/2021 . due-under-this Lease shall survive the expiration and/or termination of this Lease. ARTICLE 4 Use Premises of 4.1 Use of Premises Tenant shall use the-Premises soles arestonront and deliepiess mart and shall be ape for business 0 fewer! than five days per week, excluding national holidays and remain open. for business from at least 7am until at least 3pm. each, and every day of the five day business week, Further, Tenant shall be obligated to serve breakfast and lunch every day that Tenant is open and dinner on Friday and at least one other evening.Tenatit shall not use or permit, or suffer the use of the Premises for any other business or purpose. Tenant shall promptly execute and comply with all statutes, or orditiatices, rules, orders, regulations and requirements of the Federal, State and Local Governments and of any: and all their Departments and Bureaus applicable to said Premises, for the correction, prevention and abatement of nuisatices ot other grievances in, upon, or connected with said Premises during the Term. Tenant shall also promptly comply with and execute.all rules, orders and regulations of the New York Board of Fite Underwriters: or atiy other similar body, at the Tenant's own cost and expense with tespéct to Tenant's use of the Premises, Tenant further agrees that it shall allow no conditions of noise, vibration or any other conditions to occur within the Premises which would be either objectionable to other Tenants of the Property or which would cause any damage to the. Premises. Tenant, upon paying the Rent and performing the other terms, provisions, and covenants of this Lease, shall and may, at. all times during the term of the Lease, peaceably: and. quietly: have; hold,. and enjoy the Premises. Landlord shall comply with all laws, regulations, rules, orders and governmental requirements applicable to the Property, excluding the Premises and any areas outside the Premises that Tenant exclusively uses. 4.2 Other Business Practices: @) Tenant shall keep the Premises and other areas allocated for the sole use of Tetiant in good, neat and clean condition, () Tenant shall load and unload its: merchandise, equipment and supplies and temove its rubbish only by way'of the truck loading area and service doors designated by Landlord for Tenant's use; (c) Tenant shall. permit no act or practice which may tend to injure the building occupied by Tenant or its equipment, or allow either to be a nuisance to other tenants, or obstruct the sidewalks or areas outside the Premises. 4.3 Surrender of Premises Tenant shall deliver up and surrender to Landlord, or to its successors or assigns, possession of the Premises at the expiration of the Term, or any other expiry thereof, broom clean and in.as good condition. and repair as originally found, normal wear and tear, loss by fire or other casualty specifically excepted. Upon expiration or other termination of this Lease, Tenant shall not be entitled to remove any alterations or impravements to the Premises such as paneling, ceilings, light fixtures 4 FLEE HONROE COUNTY CLERK 0972072021 11:42 AM INDi@€xNO E 2621915065069 NYSCEE DOCs+ NO. 9 RECEIVED NYSCEF: 09/20/2021 , and. the like, except with the Landlord's express consentin wtiting, and all suc mS not permitted to be removed shall thereupon become the property of Landiord. All non- permanent partitions, trade fixtures and personal property of the Tenant shall not be considered. additions. or improvements under this provision, and may at the option of Tenant, be retioved at the expiration or other termination of this: Lease. Tenant, névertheless, shall be:responsible to repair any damage to the: Premises caused by such removal. Such ite Hor ms femoved stiall become the property of Landlord at Landlord's option, In the: eveint-Landlord elects not to retain the property Tenant failed to retiove upon expiration or other termination, the property shall be removed and disposed of at ‘Tenant's expense. ARTICLES Signs 5.1 Signs The Tenant: shall neither place, or catise or allow to be placed any sign or signs of any kind whatsoever at, in or about the entrance to said Premises, thé Propeity, ot any partof same, except in or at such place’or places as may be indicated by Landlord and consented to by Landlord. in writing, which consent’ shall not be unreasonably withheld. or delayed. All signs shall conform to a style approved by Landlord, which approval shall not be unreasonably withheld. or delayed. All permits or other necessary permissions as well as:-all. costs associated with said items shall be borne by Tenant. In the. event the Landlord or the Landlord's representative shall deem it necessary to femove any such sign or signs’ in order to paint any portion of the Property ot make any other tepairs, alteration’ oi iniproveméents in or upon the Property, the Landlord shall have the right to do so, providing the same are removed and replaced at Landlord's expense, whenever said tepairs, alterations or improvemtierits shall be completed, Tenant may place temporaty signs on the Premises or building during the period in which the permanent signs are removed by the Landlord or its representatives: ARTICLE 6 Insurance 6.1 Insurance: Tenant, at its. sole cost‘and expense for the mutual benefit of Landlord and Tenant, shall maintain personal injury and property damage liability insurance against claims: for personal injury,.death-or property damage occurring on, in.or.about the Pretis es.during the term of this Lease of not less than One Million Dollars ($ 1,000,000.00) in respect of personal injury, death or property damage. Within five (5)-days after the execution of this Lease, but in no event subsequent to taking possession of the Premises, Tenant shall provide Landlord with.a certificate containing evidence of such coverage with Landlord named on the certificate, and Tenant shall thereafter provide Landlord with appropriate. evidence of payment of premiums for said coverage upon each anniversary date of said policy. In the event that Tenant fails to provide the certificate as set forth 5 FEL HONROE COUNTY CLERK 0972072021 11:42 AM INDEEXNG E 282015005069 NYSCEF DOC, NO. 9 RECEIVED NYSCEF: 09/20/2021 i herein or-fails-to-provide evidence. of such coverage at least fifteen (15) days priot to the. exp! tation date of each expiring policy, Landlord may obtain such insuranceat Tenants sole cast and expense-and chatge the costs theteofto Tenant as Additional Rent, Landlord shall keep the property insured against loss or damage: by risks now or hereafter covered by "All Risks" coverage in an amount at least equal to the teplacement cost of the Property, as long as this lease is in effect. 6.2 Increases in Fire Insurance Premium Tenatit. shall not occupy, or change the oddupaney for any purpose deemed extra- hazardous on: account of fire, under the penalty of damages and forfeiture and in the event of a breach thereof, the Term herein shall. immediately cease and terminate at the option of the Landlord as if it were the expiration of the: otiginal term, or at the Landlord's option, Tenant, covenants and. agrees to promptly pay to Landlord as Additional Rent, upon demand, the amount of any increase in the rate of insurance on the Premises or any other part. of the Premises that ,but. for Tenant's act(s) of Tenant's permitting certain activities to take place, results in an increase in the rate of insurance then in effect 6.3 Waiver of Subrogation Each party waives on behalf of itself, and anyone claiming through or under them, by way of subrogation or otherwise, and on behalf of the insurers of such. party's property, any and all claims of rights of subtogation, of any such insurer against the other party for loss of or damage to the property so insured other than loss or damage resulting from thé willful act of such other party, and each party hereby agrees to maintain insurance upon its property, it being understood, however, (a) that such waiver shall be ineffective as to any insurer whose policy of insurance does not authorize such waiver, (b) that it shall be the obligation of éach patty seeking the benefit of the foregoing waiver to request the other party (i) to submit copies of its insurance, and (ii) in case such waiver results in an additional chargé from the insurer, additional chatge shall be paid by the party requesting the benefit of said waiver; (c) that no party shall be Hable to the other under clause (b) hereof except for willful failure to comply with anly tequest. pursuant to said clause (b). 6.4 Policies All insurance provided e in this Article 6 shall be affected-under valid and enforceable do business policies issued by insurers 0: f recognized responsibility which are: licensed to inthe Site vote of New ene All of Tenant's policies. of “insuratige as required ii this Atticle 6 shall name Landlord, Owner and Tenant as the insured as their respective interests may appear. Tenant agrees that such policies shall also be made payable, if required by Landlord, to a first mortgagee. Hach such policy shall contain an agreement by the inswrer that such policy shall not be canceled. without at least thitty (30) days prior written notice to Landlord and to any mortgagee. INDEexNO E2029195065 069 FREER HONROE COUNTY CLERK 0972072021 11:42 AM NYSCEF DOG: NO. 9 RECEIVED NYSCEF: 09/20/2021 ARTICLE 7 Damage by Fire, Ete, 7.4 Dainage by Fite In the event the Pretinises shail at any fine during:the Term be substantially or totally destroyed by fire or other casualty, or shall be rendered partly untenantable, and the repair and rehabilitation of the Premises shall be of an extent requiring more than one hundred twenty (120) days for its: completion from the: date of damage or destruction, ther this Lease, at the option of either Tenant of Landlord, may be terminated and the obligation to make rent payrtients and. any other sums owing under this Lease, so long as said payments owed were not in default as'of the dateof damage or destruction, thereupon shall cease as of the date of such damage of destruction. In the eveiit the Premises are subject to repair and rehabilitation within said one hundred twenty (120) days, this Lease shall not terminate and the rent hetein and any sunts owing’ hereutider shall be abated in the proportion that the amount of space which is not available to and usable by Tenant as a result of such casualty and/or the work and labor incidental to its rehabilitation bears to all of the space in the Premises, In the event’ the Prertises are completely or partially destroyed or so damaged by fire or other hazard that the Premises cannot be reasonably used by Tenant or can only be partially used by Tenatit and the repair and: rehabilitation is expected to exceed. one hundred twenty (120) days and this Lease-is not terminated as above provided in the first paragraph of this Article, there shall be no abatement of Rent, it being understood and agreed that the Tenant at its discretion, cost and expense shall procure insurance necessary‘ to protect itself against any interruption. of its business. Tenant agrees that in case of fire or other casualty’ tesulting in damage to the Premises, it will give immediate notice to Landlord, who shall-thereupon,. with expedition and in good and workmanlike manner, after the damage, enter upon and undertake the repair and rehabilitation, as is necessary to restore the Premises to their original condition before such damages, provided that this Lease has not been, terminated as provided in the first patagraph of this Article 7. In determining what constitutes reasonable dispatch, consideration shall be given-to delays caused by strikes, acts of God, adjustments of insurance and other causes beyond the Landlord's contol ~ ARTICLE 8 Indemnity 8.1 Indemnification by Tenant Tenant does hereby indemnify, defend and save Landlord (and such other persons as 7 FLELHHONROE COUNTY CLERK 0972072021 11:42 AM INDEEXNG E 282015005069 NYSCEF DOG.» NO. 9 RECEIVED NYSCEF: 09/20/2021 ’ are in. ptt f estate Landlord) harmless from and against any and all claims, actions, damages, liabill 'd expense in contiection with loss of ‘life, personal injury of damage to property arising from or out of any occurrence in, upon or at the: Premises, from or out of the occupancy or usé by Tenant of the Premises or any part thereof, from’ Tenant's negligence, willful and wanton conduct or failure to do any repaits which Tenant is obligated to make under this: Lease, or occasioned wholly ot in. part by any act or omission of Tenant, its agents, contractors or employees, invitees and ‘giiests. “In cai Landlord (and such~other-persons~as are-in privity of estate: with Landlord) shall be: made a-party to any litigation commenced by or against Tenant, Tenant agrees to protect and hold Landlord. harmless and to pay all costs, expenses and. reasonable attomey's fees inourted or paid by Landlord in connection with such litigation. Tenant agrees: also to pay all costs, expenses and. reasonable attorney's fees that may be incurred or paid by Landlord in enforcing the covenants and agreements in this Lease. Landlord is exempt: from any and all liability for any damage or injury to person or property caused by of resulting from steam, electricity, gas, water, tain, ice or snow, or any leak from or into any part: of said building or fro im any damage or injury resulting ot arising from any: other cause-or happening whatsoever, unless caused by the negligence or willful misconduct. of the Landlord its agents, contractors, employees or invitees. 8.2. Indemnification by Landlord Landlord does hereby indemnify, defend and save Tenant harmless from and against any and all claims, actions, damages, lability atid expeuse in connection with the loss of life, personal injury, and/or damage to property occasioned wholly or in part by any gross negligence or willful. misconduct by the Landlord, its agents, contractors, employees or invitees. In case Tenant, without-fault on its part, shall be made a party to any litigation commenced against Landlord, then Landlotd agrees to protect and hold harmless Tenant and to pay reasonable: costs and expenses, including attorney's fees incurfed by the Tenant in eonnestion with such litigation, ARTICLE 9 Repairs and Maintenane 9.1 Landlord's Obligation to Repair Landlord agrees to repair and maintain in good order and serviceable condition, the outside walls, structure, roof and foundation. of the building containing the Premises, along. with-utilities and/or. plumbing. systems owned. or controlled by the Landlord outside of the Premises, the lawn area and parking areas and. driveways, including but not limited to: sealing, striping, and patching, There is excepted from the aforementioned. covenant the following, which shall be Tenant's responsibility: 1. Repair of damage caused by the willful act or omission of Tenant, its employees, 8 FLEE HONROE COUNTY CLERK 0972072021 11:42 AM INDEEXNG E 282015065069 NYSCEF DOG, NO. 9 RECEIVED NYSCEF: 09/20/2021 agents, contractors, customers, invitees.and licensees; 2. Repairs whicthe h.ar eity of T ‘enatit.in accordance with Seotion. 92. responsibil Landlord shall not be required to commence any such repair until a reasonable time after written notice from Tenant that the same is necessary: Tenant agrees that Landlord. ahd’ Landlord’ agents and other vepre sentatives’shall have the right to enter into: and upon Premises, of any: part thereof , at all reasonable hours for the purpose of examining the same, or maki ing such repaifs or alterations therein as may be necéssary for the safety and preservati jon thereof, provided Landlord shall give business on the priot notice to Tenant and shall not negativ ely interfere with the Tenant's Premises, so long as the Landlord does not determine the situation to be an emergency. 9.2 Tenant's Obligation to Repair Tenant agrees to repair all damage caused by or res sulting from the tegligence or customers, invitees, improper conduct of Tenant, its employees, agents, contractors, including but. not Hicetisees, and maintain in good order: and condition the Premises, Premise s, including doors, windows, lintited to the nonstructural portions of the floor coverings and any plumbing ‘and electrical systems specific to the ceilings, Premises. to the Further, Tenant shall make all. repairs, alterations, additions or replacéments the authorit y, shall keep Premises required by any order or regulation of any p ublic and any licenses Premises equipped with all safety appliances so required, and shall procure permits required for atty use of the Premises by Tenant. Landlord may If repairs are required to be made by ‘Tenant: pursuant to the terms hereof, same forthwith, demand (but. shall not be required to do so ) that Tenant make the and if Teviant refuses or neglects to commence such. tepairs and complete the same with to be made reasonable dispatch after such demand, Landlord may mi ake or cause such repairs to its damag e that may accrue and shall not be responsible to Tenant for any loss or business by reason thereof, atid if Landlord mi akes or causes: sich repairs to be made, Tenant agrees that it will, on demand, pay as Addditional Rent to Landlord the: cost shall have the: remedies thereof, and if’ Tenant’ shall default in such payment, Laridlord provided in Article 14. ARTICLE 10 Utilities 10:4: Utilities-and-Services~: - to Landlord shall furnish all utilities for the Premises including, but not limited. electricity, water, sewer and gas used in and upon the Premises. separately Tenant’s electrical and water usage applicable to the Premises shall be d metered and payable directly to the utility providing such services, Landlor the Premises. shall not be responsible for any interruption of business or damage to 9. INDEEXNG E 282015005069 FLEE HONROE COUNTY CLERK 0972072021 11:42 AM NYSCEF DOG. NO. 9 RECEIVED NYSCEF: 09/20/2021 resulting from interruption of utility services caused by any utility company or governmental resin) a0). ARTICLE 11 Remodeling, a Possegsion, and Alterations 11:1 Improvements Tenant shall be responsible to make any and all improvements to the Premises at Tenant’s sole expense. Tenant shall furnish Landlord with a complete set of drawings detailing the proposed improvements to the Premises and shall not commence construction of such impidvements until approved by Landlord, whose approval shall not be unreasonably withheld or delayed. All apptoved construction. shall be in accordance with cutrent building codes and be performed in a workmanlike manner. ARTICLE 12 Common Areas 12.1 Definitions The tetm "Common Areas" shall be deemed to include that part of the Property thatis not leased to a tenant or which by its nature is not leasable to a tenant, The areas shall include, but not. necessarily be limited to, all areas, including access roads, driveways, retaining and extetior walls, landscaped-areas, truck service ways, pedestrian walks and outside courts and roofs provided by Landlord for the common or joint use and benefit of all Tenants of the Property, their employees, agents, custotnets and other invitees. 12.2 Tenant’s Right fo Use Pedestrian Walks Landlord shall perttit Tenant to place tables and chaits along the pedestrian walkways and sidewalks that form the parameter areas facing the restaurant. Tenant shall be solely responsible to secure all necessary permits for stich use by the governmental agency empowered. to apptove such use, Tenant’ shall hold Landlord harmless from any claim of injury ot hatm of every conocivable natute arising from Tenant’s use of the pedestrian. walkways and/or sidewalks. ARTICLE 13 Eminent-Domain- 13.1 Eminent Domain If title to more than twenty percent (20%) of the Property, or the Premises shall be taken by condemnation or the right of eminent. domain, or by agreement between Landlord and those authorized to exercise sich right (herein collectively referred to as the. "condéinnation proceedings") so as to render the Premises unusable for its intended 10 INDEEXNG E 282015065 069 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/20/2021 : purpose;. then this Lease shall. terminate as. of the date of vesting of title to the shall be condemning authority, and Rent and all other charges under this Lease apportioned as of the'date of vesting of titie to the condemning authority: In the event. of the partial taking that in Tenant's reasonable estimation shall have a material adverse impact on Tenant's business activities upon the Premises, then Tenant ‘shall 3 eS| have the option to cancel this Lease within ninety (90) days (but only within such 90d ays) after stich taking and Rent aid any other charges hereunder shall be paid only fo the time when Tenant suerenders possession of the Premises, or Tenant. may elect to additional continue in possession, of that portion of the Premises not.so taken, and. rent, rent and atiy other charges hereunder shall be reduced in propoition to the area taken. 13.2 Landlord Entitled to Award Out of any award. for any such taking of the Premises or any part thereof, Landlord that shall be entitled to receive and retain the amounts awarded for such Premises, except Tenant shall be entitled to receive and retain only any amounts which may be specifically awarded to it in any such.condemnation proceedings because of the taking of its trade fixtures and its leasehold iniprovements and such business loss as Tenant shall specifically and separately © stablish, including without limit moving expenses but not otherwise. It is understood in @ he event of the termination of this Lease as aforesaid, Tenant shall have no claim against the Landlord for the value of any unexpired term of its Lease and no tight or claim to any part of the award on account thereof. Tenant hereby waives each such claim or right and assigns any such claim or tight to Landlord. 13,3 Abatement Except as provided in Section 7.1 of this Lease, no diminution or abatement of Rent, or other compensation, shallbe claimed or allowed for inconvenience or discomfort arising from the making of repairs of improvements to the building or to its appliances, nor for any space taken to comply with any law, ordinance or order of a government authority provided there is no material interference with Tenant's business on the Premises, With respect to the various "services", if any, herein expressly or impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed that there shall bé no diminution or abatement of the rent, or any-othet compensation; for interruption or curtailment of stich. "services" when such interruption or cuttailment shall be due to accident, alterations or repairs desirable or necessary to be made or to inability or difficulty in seouring supplies or labor for the maintenance of such "services" or to some other cause provided there is no material interference with Tenant's business. on the Premises. No such interruption ot curtailment of any such. "service" shall be deemed a-constructive-evietion -provided -there- is no. material interference. with. Tenant's business on: the Premises, The Landlord shall not be: requited to furnish and the Tenant