Preview
FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM INDEX NO. E2024009616
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3898630
Book Page CIVIL
Return To: No. Pages: 40
CHAD WILLIAM FLANSBURG
Instrument: EXHIBIT(S)
Control #: 202406101635
Index #: E2024009616
Date: 06/10/2024
CIRCLE STREET DEVELOPMENT LLC Time: 3:26:56 PM
NOVA FITNESS, LLC
SAWYER, KEVIN P.
PLAISTED, JASON
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
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EXHIBIT A
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LEASEAGREEMENT
between
CIRCLE STREETDEVELOPMENT
LLC
(Landlord)
and
NOVAFITNESS, LLC
(Tenant)
Dated: AS OFJULY 31, 2020
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LEASEAGREEMENT
THIS LEASEAGREEMENT
(the "Lease") is madeas of day of July, 2020 by and between
the 31st
CIRCLE STREETDEVELOPMENTLLC a NewYork limited company, having offices at One
liability
Circle Street, Rochester, NY
14604 (the "Landlord"), and NOVA
FITNESS, LLC with offices at 179 Saint
Paul Street, Rochester, NewYork 14604 (the "Tenant").
ARTICLE I
PREMISES
The Landlord does hereby demise and let to the Tenant and Tenant does hereby take and hire from
the Landlord that certain premises described as:
5800 rentable square feet of space as identified on Exhibit A attached hereto (the "Premises")
which is located in the building having an address of 917-919 East Main Street, Rochester, NewYork in
the County of Monroe and State of New York, (the "Building"), together with all rights, privileges,
easements and appurtenances belonging to the Premises including the right to use all CommonAreas
(hereafter defined) located at the Building and the real pmperty on which the Building is located (the
"Land") (the Premises, the Building, and the Land shall henceforth be collectively referred to as the
"Property")jointly with the Landlord and other tenants, their agents, employees, customers and invitees.
The Premises
are subject and subordinate to all encumbrances, easement agreements, 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, wires and structural elements leading through the Premises in locations which will
not materially interfere with Tenant's use of the Premises.
ARTICLE H
TERMOF LEASE, RENT, SECURITYDEPOSIT
2.1 Term. This Lease shall be effective from the date of execution of this Lease by Landlord
and Tenant. The term of this Lease and Tenant's obligation to pay Base Rent (as hereinafter defined) (the
"Term") shall be for a period of five (5) years commencing on the earlier of(i) October 1, 2020 or (ii) the
date when Tenant shall take possession of and occupy the Premises (the "Commencement Date") and
expiring at midnight five (5) years after the last day of the calendar month in which the Commencement
Date occurs (the "Termination Date"). At such time as the CommencementDate and Termination Date
have been defined, Landlord and Tenant shall execute the Commencement Date Agreement attached as
Exhibit B, which shall then become part of the Lease.
Year" shall meana period of twelve
The term "Lease (12) consecutive months commencing on
the Commencement Date and each successive twelve (12) month period thereafter; provided, however, that
if the Cominencement Date is not the first day of a month then the first Lease Year shall also include the
partial month in which the CommencementDate occurs.
2.2 Annual Base Rent In addition to those further rents hereinafter provided for, Tenant is to
pay the annual Base Rent in the amount shown on Schedule A
attached in equal monthly installments of
(the "Base Rent") beginning on the Commencement Date. Normal payments of Base Rent shall be due and
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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 Commencement Date occur on any day other than the first day of the month, then the
Base Rent for that portion of the month shall be prorated per diem rate based on the actual number of days
in the subject month. It is understood that Base Rent and any sums payable under the terms of this Lease
are due and payable on the first day of each month during the Term of this Lease and that a charge of four
percent (4%) of the monthly Base Rent due will be due and payable for any Base Rent not paid by the tenth
(10th) day ofthe month in which it is due and shall be collectible as Additional Rent (as hereinafter defined).
2.3 Security Deposit. Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord a security deposit in the amount of Five Thousand Eight Hundred Dollars ($5,800.00)
(hereinafter, "Security Deposit"), to secure Tenant's full and faithful performance of all the obligations
herein set forth. Landlord shall not be required to pay interest on the Security Deposit or to maintain the
Security Deposit in a separate account. If any sumpayable by Tenant to Landlord shall be due and unpaid,
or if Landlord makes any payments on behalf of Tenant, or if Landlord suffers any loss or reasonable cost
or expense as a result of Tenant's non-performance of any obligation or covenant herein, then Landlord, at
its option and without limiting any other remedy, may use and apply any part of the Security Deposit to
compensate Landlord for the payments not made or the loss or reasonable cost or expense suffered by
Landlord. Within three (3) days after written notice of Landlord's use of the Security Deposit, Tenant shall
deposit with Landlord cash in an amount sufficient to restore the Security Deposit to its prior amount.
Within approximately sixty (60) days after the later of(a) the expiration or earlier termination of the Lease
Term, or (b) Tenant's vacating the Premises, Landlord shall return the Security Deposit less such portion
thereof as Landlord may have used to satisfy Tenant's obligations and less such other sums as Landlord
reasonably expects to be due from Tenant. If Landlord transfers the Security Deposit to a trasferee of the
Building or Landlord's interest therein, then such transferee (and not Landlord) shall be liable for its return.
The holder of any Mortgage shall not be liable for the return of the Security Deposit unless such holder
actually receives the Security Deposit. Tenant shall not transfer or assign the Security Deposit or any
interest therein without Landlord's prior written consent, which consent Landlord may withhold in its sole
and absolute discretion.
ARTICLE III
ALTERATIONSANDIMPROVEMENTS
3.1 Alterations and Improvements. Tenant shall notmake any alterations, physical additions
or improvements to the Premises without the express written approval of Landlord. Should Tenant wish to
make any changes or improvements ("Tenant Work") Tenant shall submit to Landlord complete drawings
and specifications for such Tenant Work together with a list of contractors and subcontractors who will be
performing the Tenant Work, a copy of all contracts and agreements relating to the Tenant Work and such
certificates of insurance as Landlord shall require. Landlord shall have complete and total discretion in
approving such Tenant Work. If Landlord does not approve of such Tenant Work, Landlord shall advise
Tenant in writing of such non-approval and will provide the reasons why such approval was not granted.
Tenant shall have the right to resubmit the materials required for approval after addressing Landlord's
reasons for non-approval. Landlord hereby approves, subject to the conditions above, the reconfiguration
of the Leased Premises in accordance with the floor plan sketch attached hereto as Exhibit C.
Notwithstanding anything herein to the contrary, Tenant shall have the right to: i) repaint the exterior of the
Building subject to Landlord's prior approval of the paint color, which shall not be unreasonably withheld;
(ii) replace the garage door, subject to Landlord's prior approval of the new door; and install windows on
the western facing exterior wall, subject to Landlord's prior approval of the design, location and
construction of such windows, none of which shall be unreasonably withheld.
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3.2 Construction of Tenant Work. Should Landlord approve of the Tenant Work, Tenant
shall cause the Tenant Work to be performed in a good and workmanlike manner, free of defects, and in
accordance with the materials approved by Landlord. Tenant shall promptly pay all contractors,
subcontractors, materialmen and suppliers and shall keep the Premises and the Building free of all liens
relating to the Tenant Work. Upon completion of the Tenant Work, Tenant shall furnish to Landlord written
and unconditional waivers of mechanic's liens upon the Property in which the Premises is located, for all
work, labor and service to be performed, and material to be furnished, signed by all contractors,
subcontractors, material men and laborers involved in such Tenant Work. Any alterations, physical
additions or improvements to the Premises made by Tenant shall at once become the property of Landlord
and shall be surrendered to Landlord upon the termination of this Lease; provided, however, Landlord, as
a condition to its approval of any proposed alteration or addition, may require Tenant to remove any
physical additions and/or repair any alterations in order to restore the Premises to the conditions existing at
the time Tenant took possession, all costs of removal and/or alterations to be borne by Tenant.
ARTICLE IV
USEOFPREMISES
4.1 Use of Premises. The Premises shall be used for the sole purpose as a fitness studio and
related general office business. Tenant 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 ordinances, 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
nuisances or 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 Fire
Underwriters or any other similar body, at the Tenant's own cost and expense with respect to Tenants 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
Building 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. As of the Commencement Date, Landlord
hereby represents and warrants that, to its actual knowledge, the Building and the Common Areas are in
material compliance with all applicable laws (including the Americans with Disabilities Act).
4.2 Other Business Practices. Tenant shall keep the Premises and other areas allocated for
the sole use of Tenant in good, neat and clean condition.
Tenant shall load and unload its merchandise, equipment and supplies and remove its rubbish only
by way ofthe truck loading area and service doors designated by Landlord for Tenants use.
Tenant shall permit no act or practice which may tend to injure the building occupied by Tenant or
itsequipment, 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.
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Upon expiration or other termination of this Lease, Tenant shall not be required to remove the
Tenants Work and shall not be entitled to remove any alterations or improvements to the Premises such as
paneling, ceilings, light fixtures and the like, except with the Landlords express consent in writing, and all
non-
such items not permitted to be removed shall thereupon become the property of Landlord. All
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 removed at the expiration or
other termination of this Lease. Tenant, nevertheless, shall be responsible to repair any damage to the
Premises caused by such removal. Such items not removed shall become the property of Landlord at
Landlord's option. In the event Landlord elects not to retain the property Tenant failed to remove upon
expiration or other termination, the property shall be removed and disposed of at Tenant's expense.
ARTICLE V
SIGNS
Tenant shall provide, at Tenant's sole expense, any desired signage identifying Tenant's business
provided Tenant shall first secure Landlord's approval of such signage and provided further that such
signage shall be in strict compliance with all applicable laws, codes, rules and regulations and Tenant shall
secure all permits, variances or other required permissions relating to such signage.
ARTICLE VI
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 Premises during the term ofthis Lease
ofnot
less than Five Million and 00/100 Dollars ($5,000,000.00) in respect of personal injury, death or property
damage. Within five (5) business 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 certificates of insurance for said coverage upon each anniversary date of said policy. In the
event that Tenant fails to provide the certificate as set forth herein or fails to provide evidence of such
coverage at least five (5) days prior to the expiration date of each expiring policy, Landlord may obtain
such insurance at Tenant's sole cost and expense and charge the costs thereof to Tenant as Additional Rent.
Landlord shall keep the Property insured against loss or damage by risks now or hereafter covered
Risks" coverage in an amount at least equal to the replacement cost of the as long as this
by "All Property,
lease is in effect. Landlord shall obtain and maintain commercial general liability insurance including
contractual liability and personal injury liability and all similar coverage, with combined single limits of
$5,000,000.00 on account of bodily injury to or death of one or more persons as the result of any one
accident or disaster and on account of damage to property, or in such other additional amounts as Landlord
may from time to time require.
6.2 Increasesin Fire Insurance Premium. Tenant shall not occupy, or change the occupancy
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 original term, or at the Landlords 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 Tenants act(s) or Tenant's
permitting certain activities to take place, results in an increase in the rate of insurance then in eiTect.
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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
any and all claims of rights of subrogation of any such insurer against the other party
for loss of
property,
or damage to the property so insured other than loss or damage resulting from the willful act of such other
party, and each party hereby agrees to maintain insurance upon its property.
6.4 Policies. All insurance provided in this Article 6 shall be effected under valid and
enforceable policies issued by insurers of recognized responsibility which are admitted to do business in
the State of NewYorlt
All of Tenants policies of liability insurance as required in this Article 6 shall nameLandlord and
Tenant as the insured as their respective interests may appear. Tenant agrees that such policies shall also be
madepayable, if required by Landlord, to a first mortgagee. Tenant shall provide notice to Landlord (and
to any mortgagee that has requested such notice from Tenant) at least thirty (30) days prior to a
cancellation or reduction in the coverage provided.
ARTICLE VII
DAMAGE
ANDDESTRUCTION
If the Premises be damaged by fire or other causes, Tenant shall immediately notify Landlord
thereof, and the damages shall be repaired by the Landlord, at its own expense; provided, however, that if
the damage or destruction was caused by the act or omission of Tenant or any invitee of Tenant, then Tenant
shall pay the amount by which such expenses exceed the insurance proceeds actually received by Landlord
on account of such damage or destruction. Landlord need only repair the damaged structural parts of the
Premises and restore the Premises to the condition it existed prior to Tenant's improvements and is not
required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed
by Landlord. Landlord is also not responsible for delays due to settling insurance claims, obtaining
estimates, labor and supply problems or any other cause not fully under Landlords control Rent shall be
abated for the portion of the Premises which is not usable by Tenant from the date of such damage or
destruction until the date which is five days following written notice from Landlord to Tenant that repair
and restoration of the Premises as required herein has been completed. Notwithstanding the foregoing, if
the Premises are not restored by Landlord within ninety (90) days of the date of such damages, whether or
not the fault of the Landlord, Tenant may, at its option, terminate this Lease by written notice to Landlord.
If the Building is damaged or destroyed by fire or other casualty, to the extent of fifty percent (50%) or
more of the monetary value of either thereof, or so that fifty percent (50%) or more of the floor space of the
Building shall be rendered untenantable, then, and in that event, either party may, at its option, terminate
this Lease by written notice to Tenant. Notwithstanding anything contained herein to the contrary, Landlord
shall also have the right to terminate this Lease if zoning or other applicable laws or regulations do not
permit such repair and restoration. Tenant hereby expressly waives the provisions of Section 227 of the
Real Property Law and agrees that the foregoing provisions shall govern in lieu thereof. If Landlord elects
to terminate this Lease, then the same shall terminate thirty (30) days after such notice is given, and the
Tenant shall immediately vacate the Premises and surrender the same to the Landlord, paying Rent to the
time of such fire or other casualty. If the Landlord does not elect to terminate this Lease, the Landlord shall
repair and/or rebuild the Premises in accordance with terms of this Article VII.
ARTICLE VIII
LIABILITY ANDINDEMNITY
8.1 Except as provided otherwise below in this Section 8.1, Landlord, its employees and agents
shallnot be liable to Tenant, any Invitee or any other person or entity for any damage (including indirect
and consequential damage), injury, loss or claim (including claims for the interruption ofor loss to business)
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based on or arising out of the following: repair to any portion of the Premises; interruption in the use of the
Premises or any equipment therein; or permissible termination of this Lease by reason of damage to the
Premises. Notwithstanding the foregoing, Landlord shall be responsible for personal injury, loss or damages
from the negligence or willful act, omission or misconduct of Landlord's or Landlord's agents or
resulting
from a beach of Landlord's obligations under this Lease.
8.2 Tenant shall reimburse Landlord for, and shall indemnify, defend and hold Landlord
Indemnitees (as hereinafter defined) harmless from and against, all Losses (as hereinafter defined) suffered
by or claimed against Landlord Indemnitees, directly or indirectly, based on or arising out of, in whole or
in part, (a) Tenant's use and occupancy of the Premises or the business conducted therein, (b) any negligent
act or omission of Tenant or any Invitee, (c) any breach of Tenant's obligations under this Lease, including
failure to surrender the Premises upon the expiration or earlier termination of the Lease Term; or (d)
Tenant's Work.
8.3 If any landlord hereunder transfers the Premises or such landlords interest therein, then
such landlord shall not be liable for any obligation or liability based on or arising out of any event or
condition occurring after such transfer, provided that the transferee of the Premises assumes Landlords
obligations under this Lease accruing after the transfer. Tenant shall attorn to such transferee and, within
five (5) days after request, shall execute, acknowledge and deliver any document submitted to Tenant
confirming such attornment.
8.4 Tenant shall not have the right to offset or deduct any amount allegedly owed to Tenant
pursuant to any claim against Landlord from any rent or other sum payable to Landlord. Tenant's sole
remedy for recovering upon such claim shall be to institute an independent action against Landlord.
8.5 If Tenant or any Invitee is awarded a moneyjudgment against Landlord, then recourse for
satisfaction of such judgment shall be limited to execution against Landlords estate and interest in the
Premises. No other asset of Landlord, any partner, director or officer of Landlord (collectively, "Officer")
or any other person or entity shall be available to satisfy or subject to such judgment, nor shall any Officer
or other person or entity have personal liability for satisfaction of any claim or judgment against Landlord
or any Officer.
ARTICLE IX
REPAIRSANDMAINTENANCE
9.1 Landlord's Obligation to Repair.
Notwithstanding Section 9.2, Landlord agrees to repair
and maintain in good order and condition the outside walls, structure, roof and foundation of the Building
containing the Premises, along with all building systems (such as utilities and/or plumbing systems) owned
or controlled by the Landlord outside of the Premises, landscaping and lawn area and parking areas and
driveways.
There is excepted from the aforementioned covenant the following, which shall be Tenants
responsibility:
(a) Repair of damage caused by the negligence or willful misconduct of Tenant, its
employees, agents, contractors, customers, invitees and licensees (each an "Invitee"); and
(b) Repairs which are the responsibility of Tenant in accordance with Section 9.2.
Tenant agrees that Landlord and Landlords agents and other representatives shall have the right to
enter into and upon Premises, or any part thereof, at all reasonable hours for the purpose of examining the
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same, or making such repairs or alterations therein as may be necessary for the safety and preservation
thereof,provided Landlord shall give at least 24 hours prior notice to Tenant (except in the case of an
emergency) and shall not negatively interfere with the Tenant's business on the Premises.
9.2 Tenant's Obligation to Repair. Tenant shall maintain and repair the non-structural
interior portionsof the Premises and at the expiration or earlier termination of the Term, shall surrender the
Premises in the same order and condition in which they were on the Commencement Date (ordinary wear
and tear consistent with the permitted use hereunder excepted).
are required to be made by Tenant pursuant to the terms hereof, Landlord may demand
If repairs
(but shall not be requiredto do so) that Tenant makethe same forthwith, and if Tenant refuses or neglects
to commencesuch repairs and complete the same with reasonable dispatch after such demand, Landlord
may makeor cause such repairs to be made and shall not be responsible to Tenant for any loss or damage
that may accrue to its business by reason thereof, and if Landlord makes or causes such repairs to be made,
Tenant agrees that it will, on demand, pay as Additional Rent to Landlord the cost thereof, and if Tenant
shall default in such payment beyond any applicable notice and cure period, Landlord shall have the
remedies provided in Article 14.
ARTICLE X
UTILITIES
10.1 Utilities and
Services. Landlord shall furnish all utilities for the Premises including, but
not limited water and sewer used in and upon the Premises which service shall be available
to electricity,
at all times. Landlord shall provide HVACservice during the hours of 6:00 am-7:00 pm, Monday through
Friday with after-hours service available to the Premises free of additional charge. Tenant shall provide
janitorial services to the Premises at its sole cost and expense.
10.2 Interruption of Services. Landlord shall not be responsible for any interruption of
business or damage to the Premises resulting from an interruption caused by any utility company or
governmental regulatory agency. Except in the case of emergencies or other unanticipated disruptions in
service, Landlord shall provide advance notice of such interruptions, curtailments or suspensions ofservice,
both telephonically and by posting a notice at the Building. In the event Landlord shall be required to
suspend the service of electricity or other power to the commonareas of the Building or to the Premises,
except in the case of emergency or interruption in service by the utility provider, Landlord shall provide
Tenant with not less than twenty (20) days prior notice of such suspension. Landlord shall use reasonable
efforts to rectify the cause of any interruption, curtailment or suspension, including the use of overtime
labor and Tenant shall not have any right to a diminution or an abatement of Rent or other compensation as
a result thereof, nor shall this Lease or any of the obligations of Tenant including the obligation to pay Rent
be affected or reduced by reason of such interruption, curtailment or suspension.
ARTICLE XI
(SECTIONOMITTED)
ARTICLE XII
(SECTIONOMITTED)
ARTICLE XM
CONDEMNATION
13.1 Eminent Domain. If any portion of the rentable area of the Premises shall be taken or
condemned by any governmental or quasi-governmental authority for any public or quasi-public use or
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purpose, or sold under threat of such a taking or condemnation (collectively, "condemned"), then this Lease
shall terminate on the date title vests in such authority and rent shall be apportioned as of such date.
Notwithstanding anything herein to the contrary, if any portion of the Land or the Premises is condemned,
and the nature, location or extent of such condemnation is such that Landlord elects, in its sole and absolute
discretion, to demolish the Premises (in whole or in part), then Landlord may terminate this Lease by giv'mg
one hundred twenty (120) days prior written notice of such termination to Tenant at any time after such
condemnation and this Lease shall terminate on the date specified in such notice and rent shall be adjusted
to such date. If portions of the Building or the Land are taken so as to render the Premises inaccessible or
not feasible for the continued operation of Tenant's business therein in the manner conducted prior to such
taking, Tenant may, at its option terminate this Lease and the term and estate hereby granted as of the date
of vesting of title by such condemnation or taking by notifying Landlord in writing within 60 days following
the date on which Tenant shall have received notice of the vesting of title
13.2 Landlord Entitled to Award.All awards, damages and other compensation paid by such
authority on account of such condemnation shall belong to Landlord, and Tenant assigns to Landlord all
rights to such awards, damagesand compensation. Tenant shall not makeany claim against Landlord or the
authority for any portion of such award, damages or compensation attributable to damage to the Premises,
value of the unexpired portion of the Lease Term, loss of profits or goodwill, leasehold improvements or
severance damages. Nothing contained herein, however, shall prevent Tenant from pursuing a separate
claim against the authority for the value of furnishings and trade fixtures installed in the Premises at Tenant's
expense and for relocation expenses, provided that such claim is stated separately from any award to
Landlord and provided further that such claim shall in no way diminish the award, damages or
compensation otherwise payable to Landlord in connection with such condemnation.
13.3 Abatement. No diminution or abatement of Rent, or other compensation, shall be claimed
or allowed for inconvenience or discomfort arising from the making of repairs or 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 access to the Premises or the
operation of 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 be
no diminution or abatement of the rent, or any other compensation, for interruption or curtailment of such
"services"
whensuch interruption or curtailment shall be due to accident, alterations or repairs desirable or
necessary to be madeor to inability or difficulty in securing supplies or labor for the maintenance of such
"services"
or to some other cause provided there is no material interference with Tenant's access to the
Premises or the operation of Tenant's business on the Premises. No such interruption or curtailment of any
"service" shall be deemed a constructive
such eviction provided there is no material interference with
Tenant's access to the Premises or the operation of Tenant's business on the Premises. The Landlord shall
not be required to furnish and the Tenant shall not be entitled to receive any of such "service" during any
period wherein the Tenant shall be in default beyond any applicable notice and cure period in respect to the
payment of Rent.
ARTICLE XIV
BANKRUPTCY
ANDDEFAULTPROVISIONS
14.1 Conditional Limitations. This Lease and the Term are subject to the limitation that if, at
any time prior to or during the Term, any one or more of the following events (herein called an "Event of
Default") shall occur:
(a) If Tenant makes an assignment for the benefit of its creditors, or
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(b) If the leasehold estate hereby created in Tenant is taken on execution or by other
process of law, or
(c) If any petition is filed against Tenant in any court, whether or not pursuant to any
statute of the United States or of any State, in any bankruptcy, reorganization,
Preview
FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM INDEX NO. E2024009616 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3898630 Book Page CIVIL Return To: No. Pages: 40 CHAD WILLIAM FLANSBURG Instrument: EXHIBIT(S) Control #: 202406101635 Index #: E2024009616 Date: 06/10/2024 CIRCLE STREET DEVELOPMENT LLC Time: 3:26:56 PM NOVA FITNESS, LLC SAWYER, KEVIN P. PLAISTED, JASON 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 202406101635 Index # INDEX : E2024009616 NO. E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 EXHIBIT A 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 LEASEAGREEMENT between CIRCLE STREETDEVELOPMENT LLC (Landlord) and NOVAFITNESS, LLC (Tenant) Dated: AS OFJULY 31, 2020 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 LEASEAGREEMENT THIS LEASEAGREEMENT (the "Lease") is madeas of day of July, 2020 by and between the 31st CIRCLE STREETDEVELOPMENTLLC a NewYork limited company, having offices at One liability Circle Street, Rochester, NY 14604 (the "Landlord"), and NOVA FITNESS, LLC with offices at 179 Saint Paul Street, Rochester, NewYork 14604 (the "Tenant"). ARTICLE I PREMISES The Landlord does hereby demise and let to the Tenant and Tenant does hereby take and hire from the Landlord that certain premises described as: 5800 rentable square feet of space as identified on Exhibit A attached hereto (the "Premises") which is located in the building having an address of 917-919 East Main Street, Rochester, NewYork in the County of Monroe and State of New York, (the "Building"), together with all rights, privileges, easements and appurtenances belonging to the Premises including the right to use all CommonAreas (hereafter defined) located at the Building and the real pmperty on which the Building is located (the "Land") (the Premises, the Building, and the Land shall henceforth be collectively referred to as the "Property")jointly with the Landlord and other tenants, their agents, employees, customers and invitees. The Premises are subject and subordinate to all encumbrances, easement agreements, 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, wires and structural elements leading through the Premises in locations which will not materially interfere with Tenant's use of the Premises. ARTICLE H TERMOF LEASE, RENT, SECURITYDEPOSIT 2.1 Term. This Lease shall be effective from the date of execution of this Lease by Landlord and Tenant. The term of this Lease and Tenant's obligation to pay Base Rent (as hereinafter defined) (the "Term") shall be for a period of five (5) years commencing on the earlier of(i) October 1, 2020 or (ii) the date when Tenant shall take possession of and occupy the Premises (the "Commencement Date") and expiring at midnight five (5) years after the last day of the calendar month in which the Commencement Date occurs (the "Termination Date"). At such time as the CommencementDate and Termination Date have been defined, Landlord and Tenant shall execute the Commencement Date Agreement attached as Exhibit B, which shall then become part of the Lease. Year" shall meana period of twelve The term "Lease (12) consecutive months commencing on the Commencement Date and each successive twelve (12) month period thereafter; provided, however, that if the Cominencement Date is not the first day of a month then the first Lease Year shall also include the partial month in which the CommencementDate occurs. 2.2 Annual Base Rent In addition to those further rents hereinafter provided for, Tenant is to pay the annual Base Rent in the amount shown on Schedule A attached in equal monthly installments of (the "Base Rent") beginning on the Commencement Date. Normal payments of Base Rent shall be due and 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 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 Commencement Date occur on any day other than the first day of the month, then the Base Rent for that portion of the month shall be prorated per diem rate based on the actual number of days in the subject month. It is understood that Base Rent and any sums payable under the terms of this Lease are due and payable on the first day of each month during the Term of this Lease and that a charge of four percent (4%) of the monthly Base Rent due will be due and payable for any Base Rent not paid by the tenth (10th) day ofthe month in which it is due and shall be collectible as Additional Rent (as hereinafter defined). 2.3 Security Deposit. Concurrently with Tenant's execution of this Lease, Tenant shall deposit with Landlord a security deposit in the amount of Five Thousand Eight Hundred Dollars ($5,800.00) (hereinafter, "Security Deposit"), to secure Tenant's full and faithful performance of all the obligations herein set forth. Landlord shall not be required to pay interest on the Security Deposit or to maintain the Security Deposit in a separate account. If any sumpayable by Tenant to Landlord shall be due and unpaid, or if Landlord makes any payments on behalf of Tenant, or if Landlord suffers any loss or reasonable cost or expense as a result of Tenant's non-performance of any obligation or covenant herein, then Landlord, at its option and without limiting any other remedy, may use and apply any part of the Security Deposit to compensate Landlord for the payments not made or the loss or reasonable cost or expense suffered by Landlord. Within three (3) days after written notice of Landlord's use of the Security Deposit, Tenant shall deposit with Landlord cash in an amount sufficient to restore the Security Deposit to its prior amount. Within approximately sixty (60) days after the later of(a) the expiration or earlier termination of the Lease Term, or (b) Tenant's vacating the Premises, Landlord shall return the Security Deposit less such portion thereof as Landlord may have used to satisfy Tenant's obligations and less such other sums as Landlord reasonably expects to be due from Tenant. If Landlord transfers the Security Deposit to a trasferee of the Building or Landlord's interest therein, then such transferee (and not Landlord) shall be liable for its return. The holder of any Mortgage shall not be liable for the return of the Security Deposit unless such holder actually receives the Security Deposit. Tenant shall not transfer or assign the Security Deposit or any interest therein without Landlord's prior written consent, which consent Landlord may withhold in its sole and absolute discretion. ARTICLE III ALTERATIONSANDIMPROVEMENTS 3.1 Alterations and Improvements. Tenant shall notmake any alterations, physical additions or improvements to the Premises without the express written approval of Landlord. Should Tenant wish to make any changes or improvements ("Tenant Work") Tenant shall submit to Landlord complete drawings and specifications for such Tenant Work together with a list of contractors and subcontractors who will be performing the Tenant Work, a copy of all contracts and agreements relating to the Tenant Work and such certificates of insurance as Landlord shall require. Landlord shall have complete and total discretion in approving such Tenant Work. If Landlord does not approve of such Tenant Work, Landlord shall advise Tenant in writing of such non-approval and will provide the reasons why such approval was not granted. Tenant shall have the right to resubmit the materials required for approval after addressing Landlord's reasons for non-approval. Landlord hereby approves, subject to the conditions above, the reconfiguration of the Leased Premises in accordance with the floor plan sketch attached hereto as Exhibit C. Notwithstanding anything herein to the contrary, Tenant shall have the right to: i) repaint the exterior of the Building subject to Landlord's prior approval of the paint color, which shall not be unreasonably withheld; (ii) replace the garage door, subject to Landlord's prior approval of the new door; and install windows on the western facing exterior wall, subject to Landlord's prior approval of the design, location and construction of such windows, none of which shall be unreasonably withheld. 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 3.2 Construction of Tenant Work. Should Landlord approve of the Tenant Work, Tenant shall cause the Tenant Work to be performed in a good and workmanlike manner, free of defects, and in accordance with the materials approved by Landlord. Tenant shall promptly pay all contractors, subcontractors, materialmen and suppliers and shall keep the Premises and the Building free of all liens relating to the Tenant Work. Upon completion of the Tenant Work, Tenant shall furnish to Landlord written and unconditional waivers of mechanic's liens upon the Property in which the Premises is located, for all work, labor and service to be performed, and material to be furnished, signed by all contractors, subcontractors, material men and laborers involved in such Tenant Work. Any alterations, physical additions or improvements to the Premises made by Tenant shall at once become the property of Landlord and shall be surrendered to Landlord upon the termination of this Lease; provided, however, Landlord, as a condition to its approval of any proposed alteration or addition, may require Tenant to remove any physical additions and/or repair any alterations in order to restore the Premises to the conditions existing at the time Tenant took possession, all costs of removal and/or alterations to be borne by Tenant. ARTICLE IV USEOFPREMISES 4.1 Use of Premises. The Premises shall be used for the sole purpose as a fitness studio and related general office business. Tenant 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 ordinances, 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 nuisances or 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 Fire Underwriters or any other similar body, at the Tenant's own cost and expense with respect to Tenants 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 Building 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. As of the Commencement Date, Landlord hereby represents and warrants that, to its actual knowledge, the Building and the Common Areas are in material compliance with all applicable laws (including the Americans with Disabilities Act). 4.2 Other Business Practices. Tenant shall keep the Premises and other areas allocated for the sole use of Tenant in good, neat and clean condition. Tenant shall load and unload its merchandise, equipment and supplies and remove its rubbish only by way ofthe truck loading area and service doors designated by Landlord for Tenants use. Tenant shall permit no act or practice which may tend to injure the building occupied by Tenant or itsequipment, 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. 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 Upon expiration or other termination of this Lease, Tenant shall not be required to remove the Tenants Work and shall not be entitled to remove any alterations or improvements to the Premises such as paneling, ceilings, light fixtures and the like, except with the Landlords express consent in writing, and all non- such items not permitted to be removed shall thereupon become the property of Landlord. All 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 removed at the expiration or other termination of this Lease. Tenant, nevertheless, shall be responsible to repair any damage to the Premises caused by such removal. Such items not removed shall become the property of Landlord at Landlord's option. In the event Landlord elects not to retain the property Tenant failed to remove upon expiration or other termination, the property shall be removed and disposed of at Tenant's expense. ARTICLE V SIGNS Tenant shall provide, at Tenant's sole expense, any desired signage identifying Tenant's business provided Tenant shall first secure Landlord's approval of such signage and provided further that such signage shall be in strict compliance with all applicable laws, codes, rules and regulations and Tenant shall secure all permits, variances or other required permissions relating to such signage. ARTICLE VI 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 Premises during the term ofthis Lease ofnot less than Five Million and 00/100 Dollars ($5,000,000.00) in respect of personal injury, death or property damage. Within five (5) business 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 certificates of insurance for said coverage upon each anniversary date of said policy. In the event that Tenant fails to provide the certificate as set forth herein or fails to provide evidence of such coverage at least five (5) days prior to the expiration date of each expiring policy, Landlord may obtain such insurance at Tenant's sole cost and expense and charge the costs thereof to Tenant as Additional Rent. Landlord shall keep the Property insured against loss or damage by risks now or hereafter covered Risks" coverage in an amount at least equal to the replacement cost of the as long as this by "All Property, lease is in effect. Landlord shall obtain and maintain commercial general liability insurance including contractual liability and personal injury liability and all similar coverage, with combined single limits of $5,000,000.00 on account of bodily injury to or death of one or more persons as the result of any one accident or disaster and on account of damage to property, or in such other additional amounts as Landlord may from time to time require. 6.2 Increasesin Fire Insurance Premium. Tenant shall not occupy, or change the occupancy 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 original term, or at the Landlords 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 Tenants act(s) or Tenant's permitting certain activities to take place, results in an increase in the rate of insurance then in eiTect. 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 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 any and all claims of rights of subrogation of any such insurer against the other party for loss of property, or damage to the property so insured other than loss or damage resulting from the willful act of such other party, and each party hereby agrees to maintain insurance upon its property. 6.4 Policies. All insurance provided in this Article 6 shall be effected under valid and enforceable policies issued by insurers of recognized responsibility which are admitted to do business in the State of NewYorlt All of Tenants policies of liability insurance as required in this Article 6 shall nameLandlord and Tenant as the insured as their respective interests may appear. Tenant agrees that such policies shall also be madepayable, if required by Landlord, to a first mortgagee. Tenant shall provide notice to Landlord (and to any mortgagee that has requested such notice from Tenant) at least thirty (30) days prior to a cancellation or reduction in the coverage provided. ARTICLE VII DAMAGE ANDDESTRUCTION If the Premises be damaged by fire or other causes, Tenant shall immediately notify Landlord thereof, and the damages shall be repaired by the Landlord, at its own expense; provided, however, that if the damage or destruction was caused by the act or omission of Tenant or any invitee of Tenant, then Tenant shall pay the amount by which such expenses exceed the insurance proceeds actually received by Landlord on account of such damage or destruction. Landlord need only repair the damaged structural parts of the Premises and restore the Premises to the condition it existed prior to Tenant's improvements and is not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord. Landlord is also not responsible for delays due to settling insurance claims, obtaining estimates, labor and supply problems or any other cause not fully under Landlords control Rent shall be abated for the portion of the Premises which is not usable by Tenant from the date of such damage or destruction until the date which is five days following written notice from Landlord to Tenant that repair and restoration of the Premises as required herein has been completed. Notwithstanding the foregoing, if the Premises are not restored by Landlord within ninety (90) days of the date of such damages, whether or not the fault of the Landlord, Tenant may, at its option, terminate this Lease by written notice to Landlord. If the Building is damaged or destroyed by fire or other casualty, to the extent of fifty percent (50%) or more of the monetary value of either thereof, or so that fifty percent (50%) or more of the floor space of the Building shall be rendered untenantable, then, and in that event, either party may, at its option, terminate this Lease by written notice to Tenant. Notwithstanding anything contained herein to the contrary, Landlord shall also have the right to terminate this Lease if zoning or other applicable laws or regulations do not permit such repair and restoration. Tenant hereby expressly waives the provisions of Section 227 of the Real Property Law and agrees that the foregoing provisions shall govern in lieu thereof. If Landlord elects to terminate this Lease, then the same shall terminate thirty (30) days after such notice is given, and the Tenant shall immediately vacate the Premises and surrender the same to the Landlord, paying Rent to the time of such fire or other casualty. If the Landlord does not elect to terminate this Lease, the Landlord shall repair and/or rebuild the Premises in accordance with terms of this Article VII. ARTICLE VIII LIABILITY ANDINDEMNITY 8.1 Except as provided otherwise below in this Section 8.1, Landlord, its employees and agents shallnot be liable to Tenant, any Invitee or any other person or entity for any damage (including indirect and consequential damage), injury, loss or claim (including claims for the interruption ofor loss to business) 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 based on or arising out of the following: repair to any portion of the Premises; interruption in the use of the Premises or any equipment therein; or permissible termination of this Lease by reason of damage to the Premises. Notwithstanding the foregoing, Landlord shall be responsible for personal injury, loss or damages from the negligence or willful act, omission or misconduct of Landlord's or Landlord's agents or resulting from a beach of Landlord's obligations under this Lease. 8.2 Tenant shall reimburse Landlord for, and shall indemnify, defend and hold Landlord Indemnitees (as hereinafter defined) harmless from and against, all Losses (as hereinafter defined) suffered by or claimed against Landlord Indemnitees, directly or indirectly, based on or arising out of, in whole or in part, (a) Tenant's use and occupancy of the Premises or the business conducted therein, (b) any negligent act or omission of Tenant or any Invitee, (c) any breach of Tenant's obligations under this Lease, including failure to surrender the Premises upon the expiration or earlier termination of the Lease Term; or (d) Tenant's Work. 8.3 If any landlord hereunder transfers the Premises or such landlords interest therein, then such landlord shall not be liable for any obligation or liability based on or arising out of any event or condition occurring after such transfer, provided that the transferee of the Premises assumes Landlords obligations under this Lease accruing after the transfer. Tenant shall attorn to such transferee and, within five (5) days after request, shall execute, acknowledge and deliver any document submitted to Tenant confirming such attornment. 8.4 Tenant shall not have the right to offset or deduct any amount allegedly owed to Tenant pursuant to any claim against Landlord from any rent or other sum payable to Landlord. Tenant's sole remedy for recovering upon such claim shall be to institute an independent action against Landlord. 8.5 If Tenant or any Invitee is awarded a moneyjudgment against Landlord, then recourse for satisfaction of such judgment shall be limited to execution against Landlords estate and interest in the Premises. No other asset of Landlord, any partner, director or officer of Landlord (collectively, "Officer") or any other person or entity shall be available to satisfy or subject to such judgment, nor shall any Officer or other person or entity have personal liability for satisfaction of any claim or judgment against Landlord or any Officer. ARTICLE IX REPAIRSANDMAINTENANCE 9.1 Landlord's Obligation to Repair. Notwithstanding Section 9.2, Landlord agrees to repair and maintain in good order and condition the outside walls, structure, roof and foundation of the Building containing the Premises, along with all building systems (such as utilities and/or plumbing systems) owned or controlled by the Landlord outside of the Premises, landscaping and lawn area and parking areas and driveways. There is excepted from the aforementioned covenant the following, which shall be Tenants responsibility: (a) Repair of damage caused by the negligence or willful misconduct of Tenant, its employees, agents, contractors, customers, invitees and licensees (each an "Invitee"); and (b) Repairs which are the responsibility of Tenant in accordance with Section 9.2. Tenant agrees that Landlord and Landlords agents and other representatives shall have the right to enter into and upon Premises, or any part thereof, at all reasonable hours for the purpose of examining the 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 same, or making such repairs or alterations therein as may be necessary for the safety and preservation thereof,provided Landlord shall give at least 24 hours prior notice to Tenant (except in the case of an emergency) and shall not negatively interfere with the Tenant's business on the Premises. 9.2 Tenant's Obligation to Repair. Tenant shall maintain and repair the non-structural interior portionsof the Premises and at the expiration or earlier termination of the Term, shall surrender the Premises in the same order and condition in which they were on the Commencement Date (ordinary wear and tear consistent with the permitted use hereunder excepted). are required to be made by Tenant pursuant to the terms hereof, Landlord may demand If repairs (but shall not be requiredto do so) that Tenant makethe same forthwith, and if Tenant refuses or neglects to commencesuch repairs and complete the same with reasonable dispatch after such demand, Landlord may makeor cause such repairs to be made and shall not be responsible to Tenant for any loss or damage that may accrue to its business by reason thereof, and if Landlord makes or causes such repairs to be made, Tenant agrees that it will, on demand, pay as Additional Rent to Landlord the cost thereof, and if Tenant shall default in such payment beyond any applicable notice and cure period, Landlord shall have the remedies provided in Article 14. ARTICLE X UTILITIES 10.1 Utilities and Services. Landlord shall furnish all utilities for the Premises including, but not limited water and sewer used in and upon the Premises which service shall be available to electricity, at all times. Landlord shall provide HVACservice during the hours of 6:00 am-7:00 pm, Monday through Friday with after-hours service available to the Premises free of additional charge. Tenant shall provide janitorial services to the Premises at its sole cost and expense. 10.2 Interruption of Services. Landlord shall not be responsible for any interruption of business or damage to the Premises resulting from an interruption caused by any utility company or governmental regulatory agency. Except in the case of emergencies or other unanticipated disruptions in service, Landlord shall provide advance notice of such interruptions, curtailments or suspensions ofservice, both telephonically and by posting a notice at the Building. In the event Landlord shall be required to suspend the service of electricity or other power to the commonareas of the Building or to the Premises, except in the case of emergency or interruption in service by the utility provider, Landlord shall provide Tenant with not less than twenty (20) days prior notice of such suspension. Landlord shall use reasonable efforts to rectify the cause of any interruption, curtailment or suspension, including the use of overtime labor and Tenant shall not have any right to a diminution or an abatement of Rent or other compensation as a result thereof, nor shall this Lease or any of the obligations of Tenant including the obligation to pay Rent be affected or reduced by reason of such interruption, curtailment or suspension. ARTICLE XI (SECTIONOMITTED) ARTICLE XII (SECTIONOMITTED) ARTICLE XM CONDEMNATION 13.1 Eminent Domain. If any portion of the rentable area of the Premises shall be taken or condemned by any governmental or quasi-governmental authority for any public or quasi-public use or 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 purpose, or sold under threat of such a taking or condemnation (collectively, "condemned"), then this Lease shall terminate on the date title vests in such authority and rent shall be apportioned as of such date. Notwithstanding anything herein to the contrary, if any portion of the Land or the Premises is condemned, and the nature, location or extent of such condemnation is such that Landlord elects, in its sole and absolute discretion, to demolish the Premises (in whole or in part), then Landlord may terminate this Lease by giv'mg one hundred twenty (120) days prior written notice of such termination to Tenant at any time after such condemnation and this Lease shall terminate on the date specified in such notice and rent shall be adjusted to such date. If portions of the Building or the Land are taken so as to render the Premises inaccessible or not feasible for the continued operation of Tenant's business therein in the manner conducted prior to such taking, Tenant may, at its option terminate this Lease and the term and estate hereby granted as of the date of vesting of title by such condemnation or taking by notifying Landlord in writing within 60 days following the date on which Tenant shall have received notice of the vesting of title 13.2 Landlord Entitled to Award.All awards, damages and other compensation paid by such authority on account of such condemnation shall belong to Landlord, and Tenant assigns to Landlord all rights to such awards, damagesand compensation. Tenant shall not makeany claim against Landlord or the authority for any portion of such award, damages or compensation attributable to damage to the Premises, value of the unexpired portion of the Lease Term, loss of profits or goodwill, leasehold improvements or severance damages. Nothing contained herein, however, shall prevent Tenant from pursuing a separate claim against the authority for the value of furnishings and trade fixtures installed in the Premises at Tenant's expense and for relocation expenses, provided that such claim is stated separately from any award to Landlord and provided further that such claim shall in no way diminish the award, damages or compensation otherwise payable to Landlord in connection with such condemnation. 13.3 Abatement. No diminution or abatement of Rent, or other compensation, shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or 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 access to the Premises or the operation of 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 be no diminution or abatement of the rent, or any other compensation, for interruption or curtailment of such "services" whensuch interruption or curtailment shall be due to accident, alterations or repairs desirable or necessary to be madeor to inability or difficulty in securing supplies or labor for the maintenance of such "services" or to some other cause provided there is no material interference with Tenant's access to the Premises or the operation of Tenant's business on the Premises. No such interruption or curtailment of any "service" shall be deemed a constructive such eviction provided there is no material interference with Tenant's access to the Premises or the operation of Tenant's business on the Premises. The Landlord shall not be required to furnish and the Tenant shall not be entitled to receive any of such "service" during any period wherein the Tenant shall be in default beyond any applicable notice and cure period in respect to the payment of Rent. ARTICLE XIV BANKRUPTCY ANDDEFAULTPROVISIONS 14.1 Conditional Limitations. This Lease and the Term are subject to the limitation that if, at any time prior to or during the Term, any one or more of the following events (herein called an "Event of Default") shall occur: (a) If Tenant makes an assignment for the benefit of its creditors, or 202406101635 IndexNO. INDEX #: E2024009616 E2024009616 FILED: MONROE COUNTY CLERK 06/10/2024 02:43 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/10/2024 (b) If the leasehold estate hereby created in Tenant is taken on execution or by other process of law, or (c) If any petition is filed against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization,