Preview
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
EXHIBIT A
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
LEASE
REFERENCE DATA PAGES
The following terms of this Lease (the "Lease") are incorporated into and are a part of the Lease
and are sometimes referenced as included within the Reference Data Pages.
EXECUTION DATE: September 8, 2022
LANDLORD: East Greenbush Realty Ventures LLC, a New York limited liability
company
LANDLORD'S
ADDRESS: c/o Charles River Realty
700 Providence Highway
P. O. Box 262
Norwood, Massachusetts 02062
TENANT: JNR Restaurant Group LLC, a New York limited liability company
TENANT'S PRESENT
ADDRESS: 6 Windfield Lane
Troy, New York 12180
PROPERTY: Approximately .621 acres of land (the "Land") with on-site parking,
an existing building containing approximately 2,543 of leasable
square feet and related improvements owned by Landlord located at
and numbered as 9 Troy Road, East Greenbush, New York, as
legally described and depicted on Exhibit A attached hereto. The
Property as defined under the Lease includes the Land, Building and
the Improvements.
LEASE
PREMISES OR PREMISES: The Lease Premises includes the entire Property, including the Land,
Building and the Improvements.
BUILDING: The existing free-standing building containing approximately 2,543
square feet of enclosed floor space built upon the Land, as the same
may be repaired, replaced and improved from time to time during
the Term in accordance with the provisions of this Lease.
IMPROVEMENTS: Those existing improvements on the Lease Premises together with
appurtenant improvements including sidewalks, paving, lighting,
drive isles, signage, landscaping and all other improvements
necessary for the operation of Tenant's business at the Lease
Premises, all as the same may be repaired, replaced and improved
from time to time during the Term in accordance with the provisions
of this Lease.
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
PERMITTED USE: Tenant shall use the Lease Premises for a full service, sit down,
pick-up/take-out and delivery Italian theme restaurant and
associated bar known as "Papa Brillo's Restaurant" and ancillary
uses related thereto in accordance with the terms and conditions
of this Lease (the "Permitted Use").
TERM COMMENCEMENT
DATE: See Paragraph 2.
TERM
EXPIRATION DATE: The last day ofthe calendar month that is five (5) years after the Rent
Commencement Date (the ."Initial Term"), as subject to the earlier
termination or extension of such period under the terms of this Lease
(the "Expiration Date"). "Term" as referred to in the Lease shall
mean the Initial Term as may be extended or terminated in
accordance with the terms of this Lease.
RENT COMMENCEMENT DATE: The earlier to occur of the following dates: (i) the date the Tenant
first opens for business at the Lease Premises, or (ii) sixty (60) days
following the Term Commencement Date.
DELIVERY DATE: The Term Commencement Date.
YEARLY FIXED RENT
AND MONTHLY PAYMENTS: For the period beginning on the Rent Commencement Date and
continuing through the expiration of the Initial Term or Extension
Term as applicable, Yearly and Monthly Fixed Rent shall be
payable as follows:
Period Monthly Yearly Fixed Natural
Fixed Rent or Rent Breakpoint
Monthly
Payment
Months 1 - 60 $4,238.33 $50,860.00 $635,750.00
Months 61-120 $4,768.13 $52,217.50 $715,218.75
(First Extension
Term)
Yearly Fixed Rent shall be payable monthly in advance in equal
monthly installments equal to the "Monthly Payment" set forth
above on the first (1 ) day of each month beginning on the Rent
Commencement Date. If the Rent Commencement Date occurs on
a day other than the first (1St) day of a month, the first Monthly
Payment shall be appropriately pro-rated for that month (which
partial monthly period shall be included in the Initial Term).
EXTENSION TERM(S): Provided Landlord has received written notice of Tenant's intent to
extend no later than nine (9) months prior to the end of the Initial
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
Term, Tenant may extend the Lease for one (1) successive five (5)
year period commencing immediately after the expiration Initial
Term. Tenant's right to extend shall be subject to the provisions set
forth in Section 27 of this Lease. Such period shall be referenced as
an "Extension Term" hereunder.
EXTENSION TERMS(S)
YEARLY FIXED RENT AND
MONTHLY PAYMENT: Yearly Fixed Rent and the required Monthly Payments during each
applicable Extension Term shall be payable in accordance with the
Yearly Fixed Rent table set forth above.
ADDITIONAL RENT: This Lease is a so called "triple net lease", and accordingly, Tenant
shall pay all costs and expenses related to the Lease Premises and/or
Property, and the operation and occupancy thereof, including,
without limitation, any and all operating expenses, real estate taxes
and all insurance premiums relating thereto, other than costs and
expenses specifically attributed to the Landlord herein.
PERCENTAGE RENT: Tenant shall pay as Additional Rent the Percentage Rent as set
forth in Section 5 hereof.
Percentage: Eight (8%) percent.
Base gross sales: An amount designated as the "Natural
Breakpoint" under the Yearly Fixed Rent
and Monthly Rent table set forth above
under this Lease.
SECURITY DEPOSIT: $5,500.00 (the "Security Deposit Amount"). See Paragraph 35.
BROKER(S): Atlantic Retail , 15A Century Hill Drive, Latham, NY 12210
GUARANTOR: Jeffrey Puppolo (per a separate Guaranty Agreement)
EXHIBITS:
Exhibit A: Legal Description of Lease Premises and Plan of Lease Premises
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
LEASE TEXT
1. Lease Premises.
Landlord hereby leases the Lease Premises to Tenant and Tenant hereby leases the Lease Premises
from Landlord for the Term upon the conditions, terms and provisions set forth in this Lease. The
Lease Premises are demised together with the right to use the easements (if any) benefiting the Lease
Premises subject to and in accordance with the provisions of the documents establishing such
easements.
2. Lease Term.
The "Initial Term" or "Term" of this Lease shall commence on the date on first (1st) business day
following the Effective Date (the "Term Commencement Date") being the same date the Landlord
delivers the Lease Premises to Tenant.
Unless sooner terminated or extended as provided herein, the term of this Lease shall terminate on the
Expiration Date. The term "Lease Year" as used herein shall mean each successive period of twelve
(12) calendar months during the Term commencing on the Rent Commencement Date, with the first
Lease Year including the stub period between the Term Commencement Date and the Rent
Commencement Date. If the Term Commencement Date occurs on a day other than on the first day
of a calendar month, the first Lease Year shall include the first twelve (12) calendar months of the
Term plus the partial calendar month in which the Term Commencement Date occurs as well as the
period between the Term Commencement Date and the Rent Commencement Date. With respect to
any Extension Term as set forth in the Reference Data Pages, the Term shall include such Extension
Term if the Term is extended in accordance with the terms hereof.
3. Yearly Fixed Rent.
Tenant shall pay to Landlord the Yearly Fixed Rent set forth in the rent table as set forth in the Reference
Data Pages by equal installments of Monthly Payments, in advance, without setoff, offset or deduction
for any reason other than as specifically provided for herein, on the first (1") day of each month. All
rent and other payments shall be made to Landlord at Landlord's Address for Payment or at such other
location and to such person as Landlord shall designate from time to time with at least thirty (30) days
prior written notice. If the Rent Commencement Date occurs on a day other than the first (1") day of a
month, the amount of the first Monthly Payment and Additional Rent shall be appropriately pro-rated
for the partial calendar month in which the Rent Commencement Date occurs. The term "Rent" or
"rent" as used herein means Yearly Fixed Rent, Percentage Rent and all Additional Rent.
4. Additional Rent.
A. "Additional Rent" means all additional rent payments by Tenant hereunder under this
Paragraph 4, as well as Percentage Rent and any other fees, charges, expenses, assessments,
fines, late charges, penalties, interest or other sums due from or to be paid by Tenant under this
Lease other than Yearly Fixed Rent.
A. From and after the Term Commencement Date (and prior to the Rent Commencement Date):
(a) this Lease will be what is commonly referred to as a "Net Lease," and, Landlord shall
receive the Yearly Fixed Rent payable to it free and clear of any and all impositions, taxes,
liens, charges, deductions or expenses of any nature whatsoever in connection with the
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
as
ownership, operation, maintenance, repair, occupancy, or use of the Lease Premises, except
otherwise expressly provided in this Lease, including, without limitation, all real estate taxes,
assessments, water rates, water charges, sewer charges, insurance premiums for coverage
obtained by Tenant other impositions generally or specifically imposed at any time during the
Lease Term, upon or against the Lease Premises, (b) except as otherwise expressly provided in
this Lease, Landlord shall not be responsible for any costs, expenses, or charges of any kind or
nature respecting the Lease Premises and Landlord shall not be required to render any services
of any kind to Tenant or to the Lease Premises, and (c) except as otherwise expressly provided
in this Lease, Tenant is obligated to pay all Rent following the Rent Commencement Date,
regardless of whether or not Tenant has the use and occupancy of the Lease Premises (except
under circumstances constituting constructive eviction by Landlord and as otherwise provided
in this Lease). Consistent with Article 8 hereunder, the Tenant shall be obligated to pay for all
utilities following taking possession of the Lease Premises on the Term Commencement Date.
Consistent with the foregoing, and unless identified specifically as a Landlord obligation under
this Lease, Tenant shall pay one hundred (100%) percent of any and all expenses with respect
to charges, operating, maintenance, repair, and replacement costs and other amounts allocable
or assessed against the Property. Other than as specifically provided for herein, it is the intent
of the Parties that Tenant pay all costs, expenses and obligations of every kind and nature
relating to the operation, maintenance, upkeep, replacement or repair of the Lease Premises,
the Building and/or Improvements without liability to Landlord.
B. Commencing on the Term Commencement Date, Tenant shall be responsible for and shall pay
to the Town of East Greenbush and County of Rensselaer one hundred (100%) percent of all
Taxes, taxed or assessed as against the Property. The term "Taxes" as used herein means all
real estate/property taxes, school taxes, assessments, betterments, water or sewer entrance fees
and charges, general, special, ordinary and extraordinary charges, or any other charges,
including charges for the use of municipal services if billed separately from other taxes levied,
assessed or imposed at any time by any governmental authority upon or against the Property,
the Building and any fixtures and other improvements constituting the Improvements and
benefiting the Building. The term "Taxes" as used herein shall also mean all taxes which may
be lawfully charged, assessed or imposed upon all fixtures and equipment of every type and
also upon all personal property in the Lease Premises and Tenant shall pay all license fees and
other charges which may lawfully be imposed upon the business of Tenant conducted within
the Lease Premises. This definition of real estate taxes is based on the present system of real
estate taxation in the State of New York; if taxes upon rentals or any other basis shall be
substituted in whole or in part for the present ad valorem real estate taxes, the term Taxes shall
be deemed changed to the extent to which there is such a substitution for the present ad valorem
real estate taxes. Tenant shall pay all Taxes on a timely basis to the taxing authorities on or
before the date upon which interest and any fines, late charges or penalties will be incurred for
late payment thereof and to present evidence of payment to Landlord. Sums due hereunder
shall be prorated if the Term commences or terminates on a date other than the first or last day
of a fiscal tax year. The term "Taxes" as used herein shall not include any inheritance,
succession, transfer, gift, franchise, corporation, capital levy, income (other than any rent
taxes), or profit tax imposed against the Landlord. For avoidance of doubt, Tenant shall be
liable to timely pay all taxes and fees payable to any governmental authority based upon the
Permitted Use. At Landlord's election, Tenant shall pay to Landlord in escrow 1/12 of the
estimated Taxes due by Tenant under this Lease which amounts shall be paid by the Landlord
to the taxing authority when due. In the event of any shortfall in such amounts, Tenant shall
promptly pay such amounts to avoid the payment of Taxes being paid past their due date. In
the event Landlord is holding any surplus escrowed funds for Taxes, it shall promptly return
such amounts to Tenant.
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
5. Percentage Rent.
A. As a further material inducement for Landlord's entering into this Lease with Tenant, in
addition to its covenant to pay Yearly Fixed Rent and Additional Rent as set forth in Sections
3 and 4 above, Tenant covenants and agrees to pay to Landlord, as "Percentage Rent" for each
Lease Year of the Term hereof, monthly payments the 12 month average of which is a sum
equal to the percentage specified in the Reference Data Pages hereof (i.e., 8.00%), multiplied
by the amount by which Tenant's gross sales (as hereinafter defined) during the applicable
Lease Year exceeds the applicable Natural Breakpoint (as designated in the Yearly Fixed Rent
and Monthly Payment table contained in the Reference Data Pages hereof), if there is any such
excess. To the extent that any Lease Year constitutes less than a full twelve (12) calendar
month period, the Natural Breakpoint shall be reduced proportionately to the same extent as
the number of days in such Lease Year bears to 365.
B. The phrase "gross sales", as used in this lease, is hereby defined to mean the dollar aggregate
of:
(i) the sales prices of all goods, wares and merchandise sold, and the charges for all services
(including the preparation and sale of all prepared food to third party customers) performed
by the Tenant at, in, on or from the Lease Premises, whether made for cash, in credit, or
otherwise without reserve or deduction for inability or failure to collect, including but not
limited to, such sales and services (i) where the orders therefor originate at and are accepted
by the Tenant in the Lease Premises but delivery or performance thereof is made from or
at any place other than the Lease Premises, (ii) pursuant to mail, telegraph, telephone,
video, electronic, computer or other technology-based systems whether existing now or
developed in the future, or other similar orders made, received or filled at or from the Lease
Premises, (iii) by means of mechanical and other vending devices in the Lease Premises,
(iv) as a result of transactions originating upon the Lease Premises, and/or (v) which the
Tenant in the normal and customary course of its operations would credit or attribute to its
business upon the Lease Premises, or any part or parts thereof; and
(ii) all moneys or other things of value received by the Tenant from its operations at, in, on or
from the Lease Premises which are not expressly excluded from gross sales by the other
provisions of this definition.
"Gross sales" shall not include (i) returns to shippers or suppliers, or (ii) amounts under
coupons and complimentary promotional sales. Further, there shall be deducted from gross
sales (x) cash or credit refunds made upon transactions included within gross sales, and (y) the
amount of any city, county, state or federal sales, luxury, or excise tax on such sales which is
both (1) added to the selling price or absorbed therein, and (2) paid to the taxing authority by
Tenant.
The phrase "gross sales" shall also include such gross sales made by any sublessee,
concessionaire, licensee or otherwise at, in, on or from the Lease Premises, and such gross sales
made by sublessees, concessionaires, licensees, or otherwise, shall be included in the reports
provided for in this lease.
C. Tenant shall utilize a POS (or similar) cash register system with sealed continuous and
cumulative totals to record all gross sales and which shall number consecutive rings. Tenant
agrees to maintain accounting controls and books of account, in form adequate for auditing
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
purposes, to assure the proper recording of all gross sales and the exclusions and deductions
therefrom provided in Section 5.B hereof.
D. Tenant agrees as follows, without notice or demand from the Landlord, to provide the
following information to Landlord with respect to the reporting of gross sales:
i. During the entire Lease Term, within fifteen (15) days after the end of each
calendar month and/or quarter, as applicable, to cause the following to be
provided and/or delivered to Landlord: (i) a statement of the gross sales of the
Tenant made at, in, on and/or from the Lease Premises for such monthly period
to be certified on behalf of Tenant by an executive officer of Tenant, (ii) copies
of monthly sales tax vouchers submitted to the State of New York, Department of
Taxation and Finance, and (iii) copies of all quarterly meals tax summary and tax
returns prepared and/or filed with the State of New York, Department of
Taxation and Finance.
ii. Tenant to deliver to Landlord (i) within thirty (30) days of filing with the Internal
Revenue Service and copies of executed Tenant federal and state tax returns to
verify gross sales.
iii. Tenant to provide a year-end register report with grand totals for gross sales
verification.
iv. Gross sales shall be subject to further verification as provided in Section 5.E below.
v. Based upon the applicable monthly gross sales, Tenant shall timely pay Landlord
on or before the fifteen (15th) day of the subsequent calendar month during the
Lease Term the amount of the Percentage Rent (applying a break point equal to
1/12 of the applicable annual Natural Breakpoint set forth in the Reference Data
Pages), if any, payable with respect to such prior monthly period.
Within thirty (30) days following the end of each Lease Year, Landlord agrees to true up
Percentage Rent due for such 12-month period agreeing that no Percentage Rent shall be
payable for any Lease Year unless gross sales during that Lease Year exceed the applicable
Natural Breakpoint for such Lease Year. If based upon the monthly Percentage Rent collected
during such period Landlord collected in excess of annual Percentage Rent due, it shall refund
such excess amounts to Tenant within thirty (30) days of conducting such true up. Conversely,
if Tenant underpaid such Percentage Rent, it shall pay to Landlord such additional amounts
due within thirty (30) days of Landlord conducting such true up. If Landlord fails to refund any
excess amounts within thirty (30) days of conducting its true up (which true up must be
conducted within thirty (30) days following the end of each Lease Year), Tenant may deduct
an amount equal to the amount of refund due to Tenant from subsequent payments of Fixed
Rent and Additional Rent.
E. The Landlord shall have the right, at any time within twenty-four (24) months after receipt of
any monthly statement of gross sales of Tenant required to be furnished pursuant to Section
5.C above, to audit all of the books of account, documents, records, returns, papers, tax returns,
original sales records (including, without limitation, cash register tapes, sales slips, bank
statements and deposit slips, credit-card records, mail orders, telephone orders, computer
records and such other sales records, if any, which would normally be examined by an
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
independent accountant pursuant to generally accepted auditing standards in performing an
audit of the Tenant's gross sales) and files of the Tenant relating to gross sales for any Lease
Year; and Tenant, on request of Landlord, shall make all such matters available for such
examination at the Lease Premises. If Landlord shall have such an audit made for any Lease
Year, and the gross sales shown by Tenant's statement for each monthly period during a Lease
Year shall be found to be understated by more than four percent (4%), then Tenant shall pay to
Landlord the cost of such audit and all future annual statements of gross sales shall be reviewed
by an independent certified public accountant. In any event, Tenant shall promptly pay to
Landlord any deficiency in Percentage Rent plus interest at the rate of ten (10%) percent per
annum (simple interest) from the date such payment should have been made to the date of
payment. Such examination and audit may be made by any non-contingency based accountant
designated in writing by Landlord from time to time. It is agreed that there shall be no more
than one (1) such audit by Landlord of Tenant's gross sales figures during any Lease Year.
F. Landlord shall keep Tenant's gross sales information and all statements of gross sales delivered
by Tenant to Landlord confidential and shall not permit any release of that information to any
third party except with the prior written consent of Tenant and except that such information
may be disclosed to Landlord's lenders, appraisers and professionals engaged by Landlord to
review and enforce the provisions of this Lease and then, in each instance only, on the basis
that such information shall be kept confidential.
G. Recognizing that this Lease contemplates the payment of Percentage Rent and is therefore
based on the gross sales made by Tenant in and from the Lease Premises, Tenant agrees that
during the Term of this Lease, neither Tenant nor any affiliated legal entity will directly or
indirectly operate or otherwise engage in a business which competes with, or which is
substantially similar to Tenant's business in, on, or from any premises, other than the Lease
Premises, located within the area lying within a one (1) mile radius of the perimeter of the
Property. In addition to any other legal or equitable remedy available to Landlord for a breach
of the provisions of this paragraph, Landlord may require that in computing Percentage Rent
for any in which there is a breach of this Section, the gross sales made in, on, or from any such
other premises while the violation continues shall be added to the gross sales made in, on, or
from the Lease Premises.
6. Delivery Date; Condition of Lease Premises.
Consistent with Paragraph 26 hereunder, the Lease Premises is being delivered by Landlord to
Tenant in its present "as is" condition, without representation or warranty (express or implied) by
Landlord, and to the existing state of title including all covenants, conditions, restrictions,
easements and other matters of record including all applicable legal requirements and matters
which would be disclosed by an inspection of the Lease Premises. Notwithstanding the
foregoing, Landlord acknowledges and agrees that it shall deliver the Premises to Tenant with the
Building roof in watertight condition and the Building heating, ventilating and air conditioning
(HVAC), electrical, plumbing, mechanical, Premises Septic System (see Paragraph 11.A.) and
fire/life safety systems in good working order.
7. Landlord's Work; Tenant's Work.
Promptly following the Delivery Date, Tenant shall, at its sole cost and expense, perform all work
("Tenant's Work") required to prepare the Lease Premises for the operation of Tenant's business.
In connection with the foregoing, Tenant shall deliver to Landlord following thirty (30) days of
the Term Commencement Date plans and specifications depicting the improvements Tenant
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
desires to make to the Lease Premises ("Tenant's Plans") for Landlord's review and approval,
which approval shall not be unreasonably withheld or delayed. Landlord shall approve or
disapprove Tenant's Plans within ten (10) days of Landlord's receipt thereof. If Landlord
disapproves Tenant's Plans then the parties shall negotiate in good faith for at least five (5)
consecutive days to reach agreement on Tenant's Plans. In addition to the foregoing, Tenant, at
its sole cost and expense, shall be responsible for completion of any required mold remediation in
the Lease Premises as required under applicable law which work shall be completed promptly
following Tenant taking delivery of the Lease Premises. Landlord agrees to reimburse Tenant for
this cost of this mold remediation work in amount not to exceed $6,5000.00, as a cap, as subject
to the following conditions. Tenant shall procure three (3) bids from duly qualified contractors for
this work and Landlord and Tenant shall work together cooperatively to choose the most qualified
bidder. Once the qualified party is chosen and this work completed, Tenant shall provide
Landlord with a copy of the final invoice which Landlord shall approve and promptly thereafter
shall be timely paid by Tenant. Upon providing Landlord with proof of payment, Tenant shall be
reimbursed the amount equal to the lesser of (i) the total cost of this work, or (ii) $6,500.00 (such
amount being defined herein as the "Landlord Mold Mitigation Allowance"). As a condition to
such reimbursement, Tenant shall provide Landlord with reasonable backup documentation to
evidence the final associated costs and Tenant's payment thereof. Except in connection with
Tenant's Work as set forth on Tenant's Plans, no structural changes to walls, windows etc.
thereafter shall be made by Tenant without Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed. All Tenant's Work shall be performed in
accordance with Tenant's Plans as approved by Landlord and in a good and workman like
manner and shall conform with applicable laws and, at Landlord's election, be removed by
Tenant at Tenant's cost, with damage thereby caused restored, upon the expiration or earlier
termination of the Lease, normal wear and tear excepted. Tenant agrees that any contractors
employed by Tenant to perform Tenant's Work shall carry workers' compensation insurance in
accordance with statutory requirements and comprehensive public liability insurance covering
such contractors on or about the Lease Premises in amounts at least equal to the limits of not less
than One Million ($1,000,000.00) Dollars per occurrence, and that Tenant will deliver certificates
of such insurance naming Landlord as additional insured under such comprehensive public
liability insurance policies before any such contractors may access the Lease Premises and/or the
Property. Tenant agrees to pay the entire cost of any Tenant's Work undertaken by Tenant, and
to bond against or discharge any liens for labor or materials within thirty (30) days after written
request by Landlord; to procure all necessary permits before undertaking such Tenant's Work;
and to do all of such Tenant's Work in a good and workmanlike manner, employing materials of
good quality and complying with all governmental requirements.
8. Utilities
Tenant shall be responsible for the installation of all utilities serving the Lease Premises, and shall
pay, as they become due, all bills for electricity, water, sewer, gas, fuel, telephone, data and all
other all utilities furnished to the Lease Premises commencing on the Delivery Date. To the extent
they do not presently exist, separate meters for utilities shall be installed by Tenant, at Tenant's
cost, in connection with Tenant's Work. In the event Tenant requires additional utility service or
other utilities, the installation and maintenance thereof shall be at Tenant's sole cost, risk and
expense. Landlord represents that Lease Premises is or will be on the Term Commencement Date
serviced by electricity, gas, municipal water and sewer and other public utilities which are available
to the Lease Premises directly from a public way or by valid easements not subject to divestiture;
provided, however, Tenant shall be solely responsible for any utility upgrades required for the
Permitted Use and all utility hookups to the Building or Lease Premises. Landlord shall not be
liable for any loss, damage, or expense that Tenant may sustain or incur because of any interruption,
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
failure, interference, change, or defect in the supply or character of utilities furnished to the Lease
Premises.
9. Use of Lease Premises.
Tenant shall use the Lease Premises only for the Permitted Use and for no other purpose or use
without Landlord's prior written consent, which consent shall not be unreasonably withheld or
delayed with Landlord giving due deliberation to the Consent Considerations (as defined in Section
13 herein). Following the opening of its business in the Lease Premises for the Permitted Use,
Tenant shall continuously operate as a full service Italian restaurant and bar and remain open for
business twelve (12) months year at least five (5) days a week for not less than five (5) hours per
day (the "Operating Covenant").
10. Compliance with Laws/Permits.
Tenant shall at its sole cost and expense comply with all federal, state and local laws, regulations,
ordinances and codes relating to Tenant's use of the Lease Premises for the Permitted Use
(including the ADA), the Building and the Improvements and all licenses, permits and approvals
issued by any governmental authority in connection with the construction, repair and replacement
of the Building and the Improvements by Tenant pursuant to this Lease. Tenant further agrees that
no trade or occupation shall be conducted at the Lease Premises, the Building or the Improvements
or use made thereof which may be unlawful, improper, noisy, offensive or contrary to municipal
by-law or ordinance or which may unduly tax the capacity of the Building or the Improvements.
Tenant shall not permit any use of the Lease Premises, the Building or the Improvements which
will make voidable any insurance on the Lease Premises, the Building, the Improvements or on the
contents thereof, or which shall be contrary to any law or regulation from time to time established
by the New England Fire Insurance Rating Association, or any similar body succeeding to its
powers.
11. Maintenance Obligations.
A. During the Term of this Lease Landlord shall at its sole cost and expense keep the roof and
structural portions (including interior, load-bearing walls) of the Lease Premises (excluding
windows, window frames, doors, door frames, storefronts, plate glass and any improvements and
other Alterations made by Tenant), as well as utility lines and mechanical equipment to the point
of entry into the Demised Premises, in good condition and repair. Further, Landlord as of the
Term Commencement Date shall provide evidence to Tenant that the private septic system
serving the Lease Premises (the "Premises Septic System") is fully operational and has been
pumped out. With respect to the Premises Septic System, Tenant during the Term shall be
responsible for all ordinary customary maintenance of the Premises Septic System, including all
required pump outs and cleaning. So long as Tenant fully complies with this obligation, if the
Premises Septic System fails and is need of replacement during the Term, Landlord shall be
responsible for such replacement at its sole cost and expense which work shall be done in such a
way to minimize interference to Tenant's business. As a condition to Landlord being obligated to
undertake the Premises Septic System replacement, Tenant shall provide Landlord with
reasonable evidence of (i) that it has fully complied with its maintenance obligations of the
Premises Septic System as required hereunder, and (ii) that a duly qualified third party vendor has
determined in writing that the existing Premises Septic System has reached the end of its useful
life and requires replacement. In the event Landlord does replace the Septic System during the
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024
Term at its sole cost and expense, Landlord shall be afforded the right to charge Tenant, and
Tenant shall pay, monthly Additional Rent in an amount equal to the cost of such expense based
upon the useful life of the newly installed Premises Septic System.
Notwithstanding the foregoing, if the need for any repair or replacement which is otherwise the
responsibility of Landlord under this Lease is attributable to or results from the negligence or
willful misconduct of Tenant, its agents, employees, concessionaires, contractors, or licensees,
then in such case Tenant does hereby agree to and shall reimburse Landlord for all costs and
expenses incurred by Landlord with respect to such repairs and/or replacement(s). Except as
expressly provided in this Lease, (i) Landlord shall otherwise not be obligated to make any
repairs, replacements, or improvements to, or upon the Lease Premises, and (ii) it shall otherwise
be the sole and complete responsibility of Tenant to maintain the Lease Premises in a good and
tenantable condition at all times during the Term of this Lease at Tenant's sole cost and expense.
Further, Tenant shall yield up the Lease Premises to Landlord at the expiration or earlier
termination of this Lease in the same condition in which they were originally constructed or
subsequently remodeled as provided in this Lease, reasonable wear and tear only excepted.
B. Tenant agrees that from and after the date that possession of the Lease Premises is delivered to
Tenant, and continuously thereafter until the end of the Term of this Lease, it will, at its sole cost
and expense, subject to Landlord's obligations under Section 11(A) above, keep neat and clean
and maintain in good order, condition and repair (with the exception of normal wear and tear), the
Lease Premises and every part thereof, including, without limitation, the Building exterior and the
exterior and interior portions of all doors, windows, plate glass (Tenant agreeing to insure plate
glass replacement), all plumbing and sewage facilities within the Lease Premises, fixtures and
interior walls, floors, ceilings, signs (including exterior signs where permitted), gutters and
downspouts and all wiring, electrical systems, interior building appliances, and HVAC systems
and components. Tenant further agrees that the Lease Premises shall be kept in a clean, sanitary
and safe condition and in compliance with the applicable laws, codes, regulations and ordinances
of the United States of America, the State of New York and the Town of East Greenbush. Tenant
shall not permit or commit any waste with respect to the Building or the Improvements. Should
Tenant fail to perform its maintenance, repair and replacement obligation as contained herein,
then Landlord may, upon the expiration of a thirty (30) day written notice and cure period (absent
cure by Tenant), at its option, perform such maintenance, repairs and replacements and charge
Tenant therefore, as Additional Rent due and payable in accordance with the terms of this Lease.
With respect to any HVAC system serving the Lease Premises, the Tenant shall at all times be
responsible at its sole cost and expense for the maintenance, repair and replacement (if necessary)
of such HVAC system. Upon the expiration or earlier termination of this Lease all HVAC
systems shall be in good working or repairable order. Tenant shall commencing on the Term
Commencement Date, at its sole cost and expense, engage a duly qualified HVAC vendor to
conduct all manufacturers required period maintenance on the HVAC systems serving the Lease
Premises and provide Landlord upon request with evidence of same.
C. Tenant during the Lease Term, at its sole cost and expense, shall be solely responsible for the
maintenance of its cooking equipment and facilities and shall provide to Landlord as required under
applicable law the following and as applicable:
• Fire Alarm Certificate
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/20
Preview
FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 EXHIBIT A FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 LEASE REFERENCE DATA PAGES The following terms of this Lease (the "Lease") are incorporated into and are a part of the Lease and are sometimes referenced as included within the Reference Data Pages. EXECUTION DATE: September 8, 2022 LANDLORD: East Greenbush Realty Ventures LLC, a New York limited liability company LANDLORD'S ADDRESS: c/o Charles River Realty 700 Providence Highway P. O. Box 262 Norwood, Massachusetts 02062 TENANT: JNR Restaurant Group LLC, a New York limited liability company TENANT'S PRESENT ADDRESS: 6 Windfield Lane Troy, New York 12180 PROPERTY: Approximately .621 acres of land (the "Land") with on-site parking, an existing building containing approximately 2,543 of leasable square feet and related improvements owned by Landlord located at and numbered as 9 Troy Road, East Greenbush, New York, as legally described and depicted on Exhibit A attached hereto. The Property as defined under the Lease includes the Land, Building and the Improvements. LEASE PREMISES OR PREMISES: The Lease Premises includes the entire Property, including the Land, Building and the Improvements. BUILDING: The existing free-standing building containing approximately 2,543 square feet of enclosed floor space built upon the Land, as the same may be repaired, replaced and improved from time to time during the Term in accordance with the provisions of this Lease. IMPROVEMENTS: Those existing improvements on the Lease Premises together with appurtenant improvements including sidewalks, paving, lighting, drive isles, signage, landscaping and all other improvements necessary for the operation of Tenant's business at the Lease Premises, all as the same may be repaired, replaced and improved from time to time during the Term in accordance with the provisions of this Lease. FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 PERMITTED USE: Tenant shall use the Lease Premises for a full service, sit down, pick-up/take-out and delivery Italian theme restaurant and associated bar known as "Papa Brillo's Restaurant" and ancillary uses related thereto in accordance with the terms and conditions of this Lease (the "Permitted Use"). TERM COMMENCEMENT DATE: See Paragraph 2. TERM EXPIRATION DATE: The last day ofthe calendar month that is five (5) years after the Rent Commencement Date (the ."Initial Term"), as subject to the earlier termination or extension of such period under the terms of this Lease (the "Expiration Date"). "Term" as referred to in the Lease shall mean the Initial Term as may be extended or terminated in accordance with the terms of this Lease. RENT COMMENCEMENT DATE: The earlier to occur of the following dates: (i) the date the Tenant first opens for business at the Lease Premises, or (ii) sixty (60) days following the Term Commencement Date. DELIVERY DATE: The Term Commencement Date. YEARLY FIXED RENT AND MONTHLY PAYMENTS: For the period beginning on the Rent Commencement Date and continuing through the expiration of the Initial Term or Extension Term as applicable, Yearly and Monthly Fixed Rent shall be payable as follows: Period Monthly Yearly Fixed Natural Fixed Rent or Rent Breakpoint Monthly Payment Months 1 - 60 $4,238.33 $50,860.00 $635,750.00 Months 61-120 $4,768.13 $52,217.50 $715,218.75 (First Extension Term) Yearly Fixed Rent shall be payable monthly in advance in equal monthly installments equal to the "Monthly Payment" set forth above on the first (1 ) day of each month beginning on the Rent Commencement Date. If the Rent Commencement Date occurs on a day other than the first (1St) day of a month, the first Monthly Payment shall be appropriately pro-rated for that month (which partial monthly period shall be included in the Initial Term). EXTENSION TERM(S): Provided Landlord has received written notice of Tenant's intent to extend no later than nine (9) months prior to the end of the Initial FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 Term, Tenant may extend the Lease for one (1) successive five (5) year period commencing immediately after the expiration Initial Term. Tenant's right to extend shall be subject to the provisions set forth in Section 27 of this Lease. Such period shall be referenced as an "Extension Term" hereunder. EXTENSION TERMS(S) YEARLY FIXED RENT AND MONTHLY PAYMENT: Yearly Fixed Rent and the required Monthly Payments during each applicable Extension Term shall be payable in accordance with the Yearly Fixed Rent table set forth above. ADDITIONAL RENT: This Lease is a so called "triple net lease", and accordingly, Tenant shall pay all costs and expenses related to the Lease Premises and/or Property, and the operation and occupancy thereof, including, without limitation, any and all operating expenses, real estate taxes and all insurance premiums relating thereto, other than costs and expenses specifically attributed to the Landlord herein. PERCENTAGE RENT: Tenant shall pay as Additional Rent the Percentage Rent as set forth in Section 5 hereof. Percentage: Eight (8%) percent. Base gross sales: An amount designated as the "Natural Breakpoint" under the Yearly Fixed Rent and Monthly Rent table set forth above under this Lease. SECURITY DEPOSIT: $5,500.00 (the "Security Deposit Amount"). See Paragraph 35. BROKER(S): Atlantic Retail , 15A Century Hill Drive, Latham, NY 12210 GUARANTOR: Jeffrey Puppolo (per a separate Guaranty Agreement) EXHIBITS: Exhibit A: Legal Description of Lease Premises and Plan of Lease Premises FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 LEASE TEXT 1. Lease Premises. Landlord hereby leases the Lease Premises to Tenant and Tenant hereby leases the Lease Premises from Landlord for the Term upon the conditions, terms and provisions set forth in this Lease. The Lease Premises are demised together with the right to use the easements (if any) benefiting the Lease Premises subject to and in accordance with the provisions of the documents establishing such easements. 2. Lease Term. The "Initial Term" or "Term" of this Lease shall commence on the date on first (1st) business day following the Effective Date (the "Term Commencement Date") being the same date the Landlord delivers the Lease Premises to Tenant. Unless sooner terminated or extended as provided herein, the term of this Lease shall terminate on the Expiration Date. The term "Lease Year" as used herein shall mean each successive period of twelve (12) calendar months during the Term commencing on the Rent Commencement Date, with the first Lease Year including the stub period between the Term Commencement Date and the Rent Commencement Date. If the Term Commencement Date occurs on a day other than on the first day of a calendar month, the first Lease Year shall include the first twelve (12) calendar months of the Term plus the partial calendar month in which the Term Commencement Date occurs as well as the period between the Term Commencement Date and the Rent Commencement Date. With respect to any Extension Term as set forth in the Reference Data Pages, the Term shall include such Extension Term if the Term is extended in accordance with the terms hereof. 3. Yearly Fixed Rent. Tenant shall pay to Landlord the Yearly Fixed Rent set forth in the rent table as set forth in the Reference Data Pages by equal installments of Monthly Payments, in advance, without setoff, offset or deduction for any reason other than as specifically provided for herein, on the first (1") day of each month. All rent and other payments shall be made to Landlord at Landlord's Address for Payment or at such other location and to such person as Landlord shall designate from time to time with at least thirty (30) days prior written notice. If the Rent Commencement Date occurs on a day other than the first (1") day of a month, the amount of the first Monthly Payment and Additional Rent shall be appropriately pro-rated for the partial calendar month in which the Rent Commencement Date occurs. The term "Rent" or "rent" as used herein means Yearly Fixed Rent, Percentage Rent and all Additional Rent. 4. Additional Rent. A. "Additional Rent" means all additional rent payments by Tenant hereunder under this Paragraph 4, as well as Percentage Rent and any other fees, charges, expenses, assessments, fines, late charges, penalties, interest or other sums due from or to be paid by Tenant under this Lease other than Yearly Fixed Rent. A. From and after the Term Commencement Date (and prior to the Rent Commencement Date): (a) this Lease will be what is commonly referred to as a "Net Lease," and, Landlord shall receive the Yearly Fixed Rent payable to it free and clear of any and all impositions, taxes, liens, charges, deductions or expenses of any nature whatsoever in connection with the FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 as ownership, operation, maintenance, repair, occupancy, or use of the Lease Premises, except otherwise expressly provided in this Lease, including, without limitation, all real estate taxes, assessments, water rates, water charges, sewer charges, insurance premiums for coverage obtained by Tenant other impositions generally or specifically imposed at any time during the Lease Term, upon or against the Lease Premises, (b) except as otherwise expressly provided in this Lease, Landlord shall not be responsible for any costs, expenses, or charges of any kind or nature respecting the Lease Premises and Landlord shall not be required to render any services of any kind to Tenant or to the Lease Premises, and (c) except as otherwise expressly provided in this Lease, Tenant is obligated to pay all Rent following the Rent Commencement Date, regardless of whether or not Tenant has the use and occupancy of the Lease Premises (except under circumstances constituting constructive eviction by Landlord and as otherwise provided in this Lease). Consistent with Article 8 hereunder, the Tenant shall be obligated to pay for all utilities following taking possession of the Lease Premises on the Term Commencement Date. Consistent with the foregoing, and unless identified specifically as a Landlord obligation under this Lease, Tenant shall pay one hundred (100%) percent of any and all expenses with respect to charges, operating, maintenance, repair, and replacement costs and other amounts allocable or assessed against the Property. Other than as specifically provided for herein, it is the intent of the Parties that Tenant pay all costs, expenses and obligations of every kind and nature relating to the operation, maintenance, upkeep, replacement or repair of the Lease Premises, the Building and/or Improvements without liability to Landlord. B. Commencing on the Term Commencement Date, Tenant shall be responsible for and shall pay to the Town of East Greenbush and County of Rensselaer one hundred (100%) percent of all Taxes, taxed or assessed as against the Property. The term "Taxes" as used herein means all real estate/property taxes, school taxes, assessments, betterments, water or sewer entrance fees and charges, general, special, ordinary and extraordinary charges, or any other charges, including charges for the use of municipal services if billed separately from other taxes levied, assessed or imposed at any time by any governmental authority upon or against the Property, the Building and any fixtures and other improvements constituting the Improvements and benefiting the Building. The term "Taxes" as used herein shall also mean all taxes which may be lawfully charged, assessed or imposed upon all fixtures and equipment of every type and also upon all personal property in the Lease Premises and Tenant shall pay all license fees and other charges which may lawfully be imposed upon the business of Tenant conducted within the Lease Premises. This definition of real estate taxes is based on the present system of real estate taxation in the State of New York; if taxes upon rentals or any other basis shall be substituted in whole or in part for the present ad valorem real estate taxes, the term Taxes shall be deemed changed to the extent to which there is such a substitution for the present ad valorem real estate taxes. Tenant shall pay all Taxes on a timely basis to the taxing authorities on or before the date upon which interest and any fines, late charges or penalties will be incurred for late payment thereof and to present evidence of payment to Landlord. Sums due hereunder shall be prorated if the Term commences or terminates on a date other than the first or last day of a fiscal tax year. The term "Taxes" as used herein shall not include any inheritance, succession, transfer, gift, franchise, corporation, capital levy, income (other than any rent taxes), or profit tax imposed against the Landlord. For avoidance of doubt, Tenant shall be liable to timely pay all taxes and fees payable to any governmental authority based upon the Permitted Use. At Landlord's election, Tenant shall pay to Landlord in escrow 1/12 of the estimated Taxes due by Tenant under this Lease which amounts shall be paid by the Landlord to the taxing authority when due. In the event of any shortfall in such amounts, Tenant shall promptly pay such amounts to avoid the payment of Taxes being paid past their due date. In the event Landlord is holding any surplus escrowed funds for Taxes, it shall promptly return such amounts to Tenant. FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 5. Percentage Rent. A. As a further material inducement for Landlord's entering into this Lease with Tenant, in addition to its covenant to pay Yearly Fixed Rent and Additional Rent as set forth in Sections 3 and 4 above, Tenant covenants and agrees to pay to Landlord, as "Percentage Rent" for each Lease Year of the Term hereof, monthly payments the 12 month average of which is a sum equal to the percentage specified in the Reference Data Pages hereof (i.e., 8.00%), multiplied by the amount by which Tenant's gross sales (as hereinafter defined) during the applicable Lease Year exceeds the applicable Natural Breakpoint (as designated in the Yearly Fixed Rent and Monthly Payment table contained in the Reference Data Pages hereof), if there is any such excess. To the extent that any Lease Year constitutes less than a full twelve (12) calendar month period, the Natural Breakpoint shall be reduced proportionately to the same extent as the number of days in such Lease Year bears to 365. B. The phrase "gross sales", as used in this lease, is hereby defined to mean the dollar aggregate of: (i) the sales prices of all goods, wares and merchandise sold, and the charges for all services (including the preparation and sale of all prepared food to third party customers) performed by the Tenant at, in, on or from the Lease Premises, whether made for cash, in credit, or otherwise without reserve or deduction for inability or failure to collect, including but not limited to, such sales and services (i) where the orders therefor originate at and are accepted by the Tenant in the Lease Premises but delivery or performance thereof is made from or at any place other than the Lease Premises, (ii) pursuant to mail, telegraph, telephone, video, electronic, computer or other technology-based systems whether existing now or developed in the future, or other similar orders made, received or filled at or from the Lease Premises, (iii) by means of mechanical and other vending devices in the Lease Premises, (iv) as a result of transactions originating upon the Lease Premises, and/or (v) which the Tenant in the normal and customary course of its operations would credit or attribute to its business upon the Lease Premises, or any part or parts thereof; and (ii) all moneys or other things of value received by the Tenant from its operations at, in, on or from the Lease Premises which are not expressly excluded from gross sales by the other provisions of this definition. "Gross sales" shall not include (i) returns to shippers or suppliers, or (ii) amounts under coupons and complimentary promotional sales. Further, there shall be deducted from gross sales (x) cash or credit refunds made upon transactions included within gross sales, and (y) the amount of any city, county, state or federal sales, luxury, or excise tax on such sales which is both (1) added to the selling price or absorbed therein, and (2) paid to the taxing authority by Tenant. The phrase "gross sales" shall also include such gross sales made by any sublessee, concessionaire, licensee or otherwise at, in, on or from the Lease Premises, and such gross sales made by sublessees, concessionaires, licensees, or otherwise, shall be included in the reports provided for in this lease. C. Tenant shall utilize a POS (or similar) cash register system with sealed continuous and cumulative totals to record all gross sales and which shall number consecutive rings. Tenant agrees to maintain accounting controls and books of account, in form adequate for auditing FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 purposes, to assure the proper recording of all gross sales and the exclusions and deductions therefrom provided in Section 5.B hereof. D. Tenant agrees as follows, without notice or demand from the Landlord, to provide the following information to Landlord with respect to the reporting of gross sales: i. During the entire Lease Term, within fifteen (15) days after the end of each calendar month and/or quarter, as applicable, to cause the following to be provided and/or delivered to Landlord: (i) a statement of the gross sales of the Tenant made at, in, on and/or from the Lease Premises for such monthly period to be certified on behalf of Tenant by an executive officer of Tenant, (ii) copies of monthly sales tax vouchers submitted to the State of New York, Department of Taxation and Finance, and (iii) copies of all quarterly meals tax summary and tax returns prepared and/or filed with the State of New York, Department of Taxation and Finance. ii. Tenant to deliver to Landlord (i) within thirty (30) days of filing with the Internal Revenue Service and copies of executed Tenant federal and state tax returns to verify gross sales. iii. Tenant to provide a year-end register report with grand totals for gross sales verification. iv. Gross sales shall be subject to further verification as provided in Section 5.E below. v. Based upon the applicable monthly gross sales, Tenant shall timely pay Landlord on or before the fifteen (15th) day of the subsequent calendar month during the Lease Term the amount of the Percentage Rent (applying a break point equal to 1/12 of the applicable annual Natural Breakpoint set forth in the Reference Data Pages), if any, payable with respect to such prior monthly period. Within thirty (30) days following the end of each Lease Year, Landlord agrees to true up Percentage Rent due for such 12-month period agreeing that no Percentage Rent shall be payable for any Lease Year unless gross sales during that Lease Year exceed the applicable Natural Breakpoint for such Lease Year. If based upon the monthly Percentage Rent collected during such period Landlord collected in excess of annual Percentage Rent due, it shall refund such excess amounts to Tenant within thirty (30) days of conducting such true up. Conversely, if Tenant underpaid such Percentage Rent, it shall pay to Landlord such additional amounts due within thirty (30) days of Landlord conducting such true up. If Landlord fails to refund any excess amounts within thirty (30) days of conducting its true up (which true up must be conducted within thirty (30) days following the end of each Lease Year), Tenant may deduct an amount equal to the amount of refund due to Tenant from subsequent payments of Fixed Rent and Additional Rent. E. The Landlord shall have the right, at any time within twenty-four (24) months after receipt of any monthly statement of gross sales of Tenant required to be furnished pursuant to Section 5.C above, to audit all of the books of account, documents, records, returns, papers, tax returns, original sales records (including, without limitation, cash register tapes, sales slips, bank statements and deposit slips, credit-card records, mail orders, telephone orders, computer records and such other sales records, if any, which would normally be examined by an FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 independent accountant pursuant to generally accepted auditing standards in performing an audit of the Tenant's gross sales) and files of the Tenant relating to gross sales for any Lease Year; and Tenant, on request of Landlord, shall make all such matters available for such examination at the Lease Premises. If Landlord shall have such an audit made for any Lease Year, and the gross sales shown by Tenant's statement for each monthly period during a Lease Year shall be found to be understated by more than four percent (4%), then Tenant shall pay to Landlord the cost of such audit and all future annual statements of gross sales shall be reviewed by an independent certified public accountant. In any event, Tenant shall promptly pay to Landlord any deficiency in Percentage Rent plus interest at the rate of ten (10%) percent per annum (simple interest) from the date such payment should have been made to the date of payment. Such examination and audit may be made by any non-contingency based accountant designated in writing by Landlord from time to time. It is agreed that there shall be no more than one (1) such audit by Landlord of Tenant's gross sales figures during any Lease Year. F. Landlord shall keep Tenant's gross sales information and all statements of gross sales delivered by Tenant to Landlord confidential and shall not permit any release of that information to any third party except with the prior written consent of Tenant and except that such information may be disclosed to Landlord's lenders, appraisers and professionals engaged by Landlord to review and enforce the provisions of this Lease and then, in each instance only, on the basis that such information shall be kept confidential. G. Recognizing that this Lease contemplates the payment of Percentage Rent and is therefore based on the gross sales made by Tenant in and from the Lease Premises, Tenant agrees that during the Term of this Lease, neither Tenant nor any affiliated legal entity will directly or indirectly operate or otherwise engage in a business which competes with, or which is substantially similar to Tenant's business in, on, or from any premises, other than the Lease Premises, located within the area lying within a one (1) mile radius of the perimeter of the Property. In addition to any other legal or equitable remedy available to Landlord for a breach of the provisions of this paragraph, Landlord may require that in computing Percentage Rent for any in which there is a breach of this Section, the gross sales made in, on, or from any such other premises while the violation continues shall be added to the gross sales made in, on, or from the Lease Premises. 6. Delivery Date; Condition of Lease Premises. Consistent with Paragraph 26 hereunder, the Lease Premises is being delivered by Landlord to Tenant in its present "as is" condition, without representation or warranty (express or implied) by Landlord, and to the existing state of title including all covenants, conditions, restrictions, easements and other matters of record including all applicable legal requirements and matters which would be disclosed by an inspection of the Lease Premises. Notwithstanding the foregoing, Landlord acknowledges and agrees that it shall deliver the Premises to Tenant with the Building roof in watertight condition and the Building heating, ventilating and air conditioning (HVAC), electrical, plumbing, mechanical, Premises Septic System (see Paragraph 11.A.) and fire/life safety systems in good working order. 7. Landlord's Work; Tenant's Work. Promptly following the Delivery Date, Tenant shall, at its sole cost and expense, perform all work ("Tenant's Work") required to prepare the Lease Premises for the operation of Tenant's business. In connection with the foregoing, Tenant shall deliver to Landlord following thirty (30) days of the Term Commencement Date plans and specifications depicting the improvements Tenant FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 desires to make to the Lease Premises ("Tenant's Plans") for Landlord's review and approval, which approval shall not be unreasonably withheld or delayed. Landlord shall approve or disapprove Tenant's Plans within ten (10) days of Landlord's receipt thereof. If Landlord disapproves Tenant's Plans then the parties shall negotiate in good faith for at least five (5) consecutive days to reach agreement on Tenant's Plans. In addition to the foregoing, Tenant, at its sole cost and expense, shall be responsible for completion of any required mold remediation in the Lease Premises as required under applicable law which work shall be completed promptly following Tenant taking delivery of the Lease Premises. Landlord agrees to reimburse Tenant for this cost of this mold remediation work in amount not to exceed $6,5000.00, as a cap, as subject to the following conditions. Tenant shall procure three (3) bids from duly qualified contractors for this work and Landlord and Tenant shall work together cooperatively to choose the most qualified bidder. Once the qualified party is chosen and this work completed, Tenant shall provide Landlord with a copy of the final invoice which Landlord shall approve and promptly thereafter shall be timely paid by Tenant. Upon providing Landlord with proof of payment, Tenant shall be reimbursed the amount equal to the lesser of (i) the total cost of this work, or (ii) $6,500.00 (such amount being defined herein as the "Landlord Mold Mitigation Allowance"). As a condition to such reimbursement, Tenant shall provide Landlord with reasonable backup documentation to evidence the final associated costs and Tenant's payment thereof. Except in connection with Tenant's Work as set forth on Tenant's Plans, no structural changes to walls, windows etc. thereafter shall be made by Tenant without Landlord's prior written approval, which approval shall not be unreasonably withheld or delayed. All Tenant's Work shall be performed in accordance with Tenant's Plans as approved by Landlord and in a good and workman like manner and shall conform with applicable laws and, at Landlord's election, be removed by Tenant at Tenant's cost, with damage thereby caused restored, upon the expiration or earlier termination of the Lease, normal wear and tear excepted. Tenant agrees that any contractors employed by Tenant to perform Tenant's Work shall carry workers' compensation insurance in accordance with statutory requirements and comprehensive public liability insurance covering such contractors on or about the Lease Premises in amounts at least equal to the limits of not less than One Million ($1,000,000.00) Dollars per occurrence, and that Tenant will deliver certificates of such insurance naming Landlord as additional insured under such comprehensive public liability insurance policies before any such contractors may access the Lease Premises and/or the Property. Tenant agrees to pay the entire cost of any Tenant's Work undertaken by Tenant, and to bond against or discharge any liens for labor or materials within thirty (30) days after written request by Landlord; to procure all necessary permits before undertaking such Tenant's Work; and to do all of such Tenant's Work in a good and workmanlike manner, employing materials of good quality and complying with all governmental requirements. 8. Utilities Tenant shall be responsible for the installation of all utilities serving the Lease Premises, and shall pay, as they become due, all bills for electricity, water, sewer, gas, fuel, telephone, data and all other all utilities furnished to the Lease Premises commencing on the Delivery Date. To the extent they do not presently exist, separate meters for utilities shall be installed by Tenant, at Tenant's cost, in connection with Tenant's Work. In the event Tenant requires additional utility service or other utilities, the installation and maintenance thereof shall be at Tenant's sole cost, risk and expense. Landlord represents that Lease Premises is or will be on the Term Commencement Date serviced by electricity, gas, municipal water and sewer and other public utilities which are available to the Lease Premises directly from a public way or by valid easements not subject to divestiture; provided, however, Tenant shall be solely responsible for any utility upgrades required for the Permitted Use and all utility hookups to the Building or Lease Premises. Landlord shall not be liable for any loss, damage, or expense that Tenant may sustain or incur because of any interruption, FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 failure, interference, change, or defect in the supply or character of utilities furnished to the Lease Premises. 9. Use of Lease Premises. Tenant shall use the Lease Premises only for the Permitted Use and for no other purpose or use without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed with Landlord giving due deliberation to the Consent Considerations (as defined in Section 13 herein). Following the opening of its business in the Lease Premises for the Permitted Use, Tenant shall continuously operate as a full service Italian restaurant and bar and remain open for business twelve (12) months year at least five (5) days a week for not less than five (5) hours per day (the "Operating Covenant"). 10. Compliance with Laws/Permits. Tenant shall at its sole cost and expense comply with all federal, state and local laws, regulations, ordinances and codes relating to Tenant's use of the Lease Premises for the Permitted Use (including the ADA), the Building and the Improvements and all licenses, permits and approvals issued by any governmental authority in connection with the construction, repair and replacement of the Building and the Improvements by Tenant pursuant to this Lease. Tenant further agrees that no trade or occupation shall be conducted at the Lease Premises, the Building or the Improvements or use made thereof which may be unlawful, improper, noisy, offensive or contrary to municipal by-law or ordinance or which may unduly tax the capacity of the Building or the Improvements. Tenant shall not permit any use of the Lease Premises, the Building or the Improvements which will make voidable any insurance on the Lease Premises, the Building, the Improvements or on the contents thereof, or which shall be contrary to any law or regulation from time to time established by the New England Fire Insurance Rating Association, or any similar body succeeding to its powers. 11. Maintenance Obligations. A. During the Term of this Lease Landlord shall at its sole cost and expense keep the roof and structural portions (including interior, load-bearing walls) of the Lease Premises (excluding windows, window frames, doors, door frames, storefronts, plate glass and any improvements and other Alterations made by Tenant), as well as utility lines and mechanical equipment to the point of entry into the Demised Premises, in good condition and repair. Further, Landlord as of the Term Commencement Date shall provide evidence to Tenant that the private septic system serving the Lease Premises (the "Premises Septic System") is fully operational and has been pumped out. With respect to the Premises Septic System, Tenant during the Term shall be responsible for all ordinary customary maintenance of the Premises Septic System, including all required pump outs and cleaning. So long as Tenant fully complies with this obligation, if the Premises Septic System fails and is need of replacement during the Term, Landlord shall be responsible for such replacement at its sole cost and expense which work shall be done in such a way to minimize interference to Tenant's business. As a condition to Landlord being obligated to undertake the Premises Septic System replacement, Tenant shall provide Landlord with reasonable evidence of (i) that it has fully complied with its maintenance obligations of the Premises Septic System as required hereunder, and (ii) that a duly qualified third party vendor has determined in writing that the existing Premises Septic System has reached the end of its useful life and requires replacement. In the event Landlord does replace the Septic System during the FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/2024 Term at its sole cost and expense, Landlord shall be afforded the right to charge Tenant, and Tenant shall pay, monthly Additional Rent in an amount equal to the cost of such expense based upon the useful life of the newly installed Premises Septic System. Notwithstanding the foregoing, if the need for any repair or replacement which is otherwise the responsibility of Landlord under this Lease is attributable to or results from the negligence or willful misconduct of Tenant, its agents, employees, concessionaires, contractors, or licensees, then in such case Tenant does hereby agree to and shall reimburse Landlord for all costs and expenses incurred by Landlord with respect to such repairs and/or replacement(s). Except as expressly provided in this Lease, (i) Landlord shall otherwise not be obligated to make any repairs, replacements, or improvements to, or upon the Lease Premises, and (ii) it shall otherwise be the sole and complete responsibility of Tenant to maintain the Lease Premises in a good and tenantable condition at all times during the Term of this Lease at Tenant's sole cost and expense. Further, Tenant shall yield up the Lease Premises to Landlord at the expiration or earlier termination of this Lease in the same condition in which they were originally constructed or subsequently remodeled as provided in this Lease, reasonable wear and tear only excepted. B. Tenant agrees that from and after the date that possession of the Lease Premises is delivered to Tenant, and continuously thereafter until the end of the Term of this Lease, it will, at its sole cost and expense, subject to Landlord's obligations under Section 11(A) above, keep neat and clean and maintain in good order, condition and repair (with the exception of normal wear and tear), the Lease Premises and every part thereof, including, without limitation, the Building exterior and the exterior and interior portions of all doors, windows, plate glass (Tenant agreeing to insure plate glass replacement), all plumbing and sewage facilities within the Lease Premises, fixtures and interior walls, floors, ceilings, signs (including exterior signs where permitted), gutters and downspouts and all wiring, electrical systems, interior building appliances, and HVAC systems and components. Tenant further agrees that the Lease Premises shall be kept in a clean, sanitary and safe condition and in compliance with the applicable laws, codes, regulations and ordinances of the United States of America, the State of New York and the Town of East Greenbush. Tenant shall not permit or commit any waste with respect to the Building or the Improvements. Should Tenant fail to perform its maintenance, repair and replacement obligation as contained herein, then Landlord may, upon the expiration of a thirty (30) day written notice and cure period (absent cure by Tenant), at its option, perform such maintenance, repairs and replacements and charge Tenant therefore, as Additional Rent due and payable in accordance with the terms of this Lease. With respect to any HVAC system serving the Lease Premises, the Tenant shall at all times be responsible at its sole cost and expense for the maintenance, repair and replacement (if necessary) of such HVAC system. Upon the expiration or earlier termination of this Lease all HVAC systems shall be in good working or repairable order. Tenant shall commencing on the Term Commencement Date, at its sole cost and expense, engage a duly qualified HVAC vendor to conduct all manufacturers required period maintenance on the HVAC systems serving the Lease Premises and provide Landlord upon request with evidence of same. C. Tenant during the Lease Term, at its sole cost and expense, shall be solely responsible for the maintenance of its cooking equipment and facilities and shall provide to Landlord as required under applicable law the following and as applicable: • Fire Alarm Certificate FILED: RENSSELAER COUNTY CLERK 04/05/2024 01:49 PM INDEX NO. EF2024-276518 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/05/20