Exhibit 10.35
FIRST MODIFICATION TO LEASE AGREEMENT
This First Lease Modification Agreement (this "Agreement") is executed by
TREELINE 1 OCR LLC, a New York limited liability company having offices c/o
Treeline Management Corp., 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx
Xxxx 00000, as successor in interest to TREELINE MINEOLA LLC ("Landlord"), and
1-800 XXXXXXX.XXX, INC., a Delaware corporation having offices at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Tenant"), as of the 16th day of November,
2005 with reference to the following facts:
WHEREAS, Treeline Mineola LLC (predecessor in interest to Landlord) and Tenant
previously entered into a certain Agreement of Lease (the "Lease") with respect
to certain premises as more specifically set forth in such Lease, in the
building commonly known as 0 Xxx Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx (the
"Building") dated May 20, 2005;
WHEREAS, Landlord and Tenant entered into a Letter Agreement dated June 6, 2005
pursuant to which both the Landlord and the Tenant acknowledged that there were
three (3) typographical errors in the Lease; as set forth in the letter annexed
hereto as Exhibit "E";
WHEREAS, Landlord and Tenant desire to amend the Lease to, among other things,
provide for Landlord to perform additional work on behalf of Tenant, on the
terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Except to the extent modified by this Agreement, all defined terms contained
in this Agreement shall, for the purposes hereof, have the same meanings
ascribed to those terms in the Lease.
2. In consideration of (i) resolving and eliminating any and all claimed
Tenant's Delays, (ii) resolving and eliminating any claims of Landlord's delay
or failure to timely deliver possession of the Demised Premises (iii) resolving
and eliminating any and all claimed additional costs to Landlord, including but
not limited to, any and all additional costs for labor, materials, engineering,
consultants, insurance, administrative and/or management fees and filing fees,
as well as, reimbursement of Holdover Rent (as defined in Article 44 of the
Lease) (iv) modifying the Work Letter (as set forth as Exhibit "B" to the Lease)
to clarify Landlord's existing obligations and to provide for Landlord to
perform additional work, including the purchasing and installation of Tenant
Extras (as set forth in Exhibit "A"), all at Landlord's sole cost and expense
and to be done in compliance with all applicable codes, laws, rules and
regulations, and (v) for other good and valuable consideration, the sufficiency
hereof is hereby acknowledged, Landlord and Tenant agree to the following terms
provided for in this Agreement.
3. (a) Tenant does hereby waive its right to receive, or be credited for, (i)
the Relocation Allowance of $900,000 due from Landlord under section 45.01(i) of
the Lease, (ii) any payment due from Landlord to Tenant with respect to Tenant's
computer wiring (as more specifically set forth in Section (xiii) of Article 11
of Exhibit "B" to the Lease; (iii) the one month abatement of Fixed Annual Rent
as provided for in section 1.06 of the Lease; (iv) any rent abatement provided
for under Section 22.02 of the Lease; and (v) any Hold Over Rent which may have
been due and payable on or after August 31, 2005 by Landlord to Tenant, it being
understood that Landlord's obligation to pay Hold Over Rent pursuant to Article
44.01 has been satisfied in full.
(b) On the Rent Commencement Date Tenant shall pay to Landlord the rent
due on December 1, 2005 in the amount of $180,192.33 and an additional sum of
$185,787.69 which represents the fixed monthly rent payment due on December 1,
2006, this sum is prepaid December 2006 fixed monthly rent and will be applied
on December 1, 2006.
(c) Section 1.02(a) is hereby deleted in its entirety, it being the
intent of the parties hereto that notwithstanding anything in the Lease to the
contrary, the Commencement Date and the Rent Commencement Date are deemed to be
December 1, 2005. Tenant's obligation to pay rent with respect to the Original
Premises, the Expansion Space and the Storage Space (as modified in Section 3
below) commences on such date. Simultaneously with the execution of this
Agreement, Tenant will execute and deliver to Landlord a Tenant Estoppel
certificate for the Original Premises, the Expansion Space and the Storage Space
in the form set forth as Exhibit "G" annexed hereto and made part hereof.
Landlord's remains obligated to deliver the Demised Premises in accordance with
the Lease, the Plan, the plans submitted to the Building Department by Landlord,
the Workletter, the punch list attached as Exhibit F and any punch lists for the
Third Floor Space and the First Floor Space, and this Amendment.
(d) Tenant acknowledges that it accepts possession of the Original
Premises, the Expansion Space, and the Storage Space in its "as is" condition
subject to (i) the punch list as set forth herein on Exhibit "F", completion of
Landlord's Work on the First and Third Floor Spaces, and the provisions of this
Agreement, including but not limited the provisions of section 3(e) of this
Agreement. Landlord will use due diligence to timely complete all work required
of it to be performed.
(e) Tenant and Landlord will after the First Floor Space and the Third
Floor Space are completed prepare a punch list for the spaces. The Computer in
the First Floor Space is completed except for the items set forth in the Punch
List attached hereto as Exhibit "F". Landlord will use due diligence to timely
complete all undisputed punch items for the First Floor Space and the Third
Floor Space In the event of a dispute Xxxxxx Xxxxxxxxx and Xxxxx Xxxxx will work
to resolve any dispute as to the validity of any punch list request. Tenant
waives the requirement of the Landlord to obtain Occupancy Approvals as of the
date hereof and the Commencement Date of the Lease, but Landlord shall obtain
same as provided for herein. Nothing in this Agreement is intended to waive any
requirements of the Landlord to obtain all Occupancy Approvals as provided for
in the Lease nor is Tenant waiving any representations, warranties or
obligations of the Landlord as provided for in the Lease, except as specifically
modified by the terms of this Agreement.
With respect to the First Floor portion of the Demised Premises (the "First
Floor Space") Landlord and Tenant each acknowledge as follows:
a. The First Floor Space is currently under construction.
b. Landlord represents that the entire first floor space (both those
portions of the Original Premises and the First Expansion Space) was
filed as one project.
c. To date, except for the installation of the carpet and the punch
list related to the Computer Room, Landlord has completed the first
floor portion of the Original Premises. Landlord warrants that it will
commence the installation of the carpet in the Original Premises of the
First Floor Space by no later than December 1, 2005 and thereafter
shall work on a continuous basis to complete said installation by
December 9, 2005.
d. Tenant has been given possession of the "Computer Room" in the
Original First Floor Space. With the exception of those specifically
set forth in Exhibit "F" Tenant acknowledges that there are no punch
list items to be completed in the Computer Room.
e. Landlord has commenced completion of the Expansion Space on the
First Floor. Landlord anticipates completing the First Floor Space by
December 9, 2005. Landlord agrees to work diligently and on a daily
basis to complete the work. In any event the Tenant is permitted to
take full occupancy of the Original Spaces of the First Floor Space
starting on the night of December 9, 2005.
f. Tenant shall submit a punch list for the First Floor Space (with the
exception of the Computer Room). Landlord shall complete the punch list
to the extent the same accurately sets forth the undisputed conditions
and obligations of Landlord.
g. In all events, Landlord will allow Tenant to fully occupy all
portions of the First Floor Space on or before December 15th, 2005,
subject to the following conditions:
(a) In the event Tenant's occupancy of the First Floor Space
materially interferes with Landlord obtaining a Certificate of
Occupancy Tenant will immediately vacate the areas so that the
Certificate of Occupancy may be issued; and
(b) In the event Tenant causes any condition which prohibits the
issuance of a Certificate of Occupancy Tenant, at its expense,
shall forthwith cease and desist from said conduct and remedy
said condition so that the Certificate of Occupancy may be
issued. If Tenant does not remedy said condition, at its sole
cost and expense, within a reasonably time period (but in no
event longer than ten (10) days from Landlord's written notice
to Tenant of said condition, Landlord shall have the right to
remedy the same and Tenant, at its sole cost and expense, shall
reimburse Landlord for all costs associated with remedying the
condition.
With respect to the Fifth Floor portion of the Demised Premises (the
"Fifth Floor Space"): Landlord and Tenant each acknowledge that the
Fifth Floor Space is completed, subject to the punch list items, and
the Certificate of Occupancy has been obtained from the Town of North
Hempstead. Landlord represents that to the best of its knowledge there
are no other Occupancy Approvals required for the Fifth Floor Space.
Tenant accepts possession of, and may fully occupy, the Fifth Floor
Space upon execution of this Agreement and Landlord's sole remaining
obligation with respect to Landlord's Work in the Fifth Floor Space is
limited to completing the items set forth in the Punch List attached
hereto as Exhibit "F".
With respect to the Third Floor Space portion of the Demised Premises
(the "Third Floor Space"): Landlord and Tenant acknowledge that the
Third Floor Space is currently under construction. The estimated date
of completion of the Third Floor Space is December 2, 2005. Landlord
shall work on a continuous basis to complete Landlord's Work on the
Third Floor Space in a timely manner.
Landlord will allow Tenant to fully occupy all portions of the Third
Floor Space starting on the night of December 5th, 2005, subject to the
following conditions: (i)In the event Tenant's occupancy of the Third
Floor Space materially interferes with Landlord obtaining a Certificate
of Occupancy Tenant will immediately vacate the areas so that the
Certificate of Occupancy may be issued; and (ii) In the event Tenant
causes any condition which prohibits the issuance of a Certificate of
Occupancy Tenant, at its expense, shall forthwith cease and desist from
said conduct and remedy said condition so that the Certificate of
Occupancy may be issued. If Tenant does not remedy said condition, at
its sole cost and expense, within a reasonably time period (but in no
event longer than ten (10) days from Landlord's written notice to
Tenant of said condition, Landlord shall have the right to remedy the
same and Tenant, at its sole cost and expense, shall reimburse Landlord
for all costs associated with remedying the condition.
With respect to the Lower Level portion of the Demised Premises (the
"Lower Level Space"): Landlord and Tenant acknowledge that the Lower
Level Space is completed, subject to the punch list, and the
Certificate of Occupancy has been obtained from the Town of North
Hempstead. Landlord represents that to the best of its knowledge no
other Occupancy Approvals are required for the Lower level Space.
Tenant accepts possession of, and can fully occupy, the Lower Level
Space upon execution of this Agreement.
With respect to the Storage Spaces: The Storage Space has been
delivered to Tenant and Tenant has accepted occupancy of the same.
Tenant acknowledges that there are no punch list items except as
specifically set forth in Exhibit "F" and Landlord's obligations with
respect to Exhibit "F" is to complete the items set forth therein,
Exhibit "F".
Landlord and Tenant each acknowledge that the dates noted above are not
intended to include the date or dates that Landlord expects to receive
the "Certificate of Occupancy" for the respective spaces;
notwithstanding the above, Landlord will use best efforts to obtain the
"Certificate of Occupancy" and any other required Occupancy Approvals
in an expedited fashion through Xxxx Xxxxxx.
The parties hereto acknowledge that the Town of North Hempstead may
issue a "Certificate of Completion" in lieu of a "Certificate of
Occupancy". Accordingly, for purposes of this Agreement the term
"Certificate of Occupancy" and "Certificate of Completion" shall be
deemed to have the same meaning and the issuance of a "Certificate of
Completion" in lieu of a "Certificate of Occupancy" for any portion of
the Demised Premises shall be deemed to satisfy Landlord's obligations
as that is the certificate that the Town of North Hempstead issued.
Tenant shall continue to be able to perform its work in conjunction
with Landlord's Work as has been done to date. Tenant shall do no work
or perform no act that shall materially interfere with, delay or impede
Landlord from obtaining the "Certificate of Occupancy" or other
Occupancy Approval.
Section 2.02 of the Lease is hereby deleted in its entirety and
replaced by this provision.
Notwithstanding the foregoing the establishment of the December 1, 2005
Commencement Date and the December 1, 2005 Rent Commencement Date as provided
herein and the estimated dates of completion, the Landlord remains obligated to
perform the Landlord's Work including all upgrades, additions and extras
contained in Exhibit "A" hereto, all items on any Punch Lists to the extent that
the same accurately sets forth the undisputed conditions and obligations of
Landlord, and to obtain and deliver to Tenant copies of all Occupancy Approvals
with respect to the First Floor Space and the Third Floor Space as required
under the terms of the Lease and this Agreement.
Tenant, upon the delivery of the Occupancy Approvals for the First
Floor Space and the Third Floor Space by the Landlord, shall execute a new
Estoppel Certificate the entire Premises which Estoppel Certificate shall be in
the form substantially similar to the Estoppel Letter attached hereto as Exhibit
G and Tenant shall deliver same within ten (10) days of its receipt of the
Occupancy Approvals for these spaces.
Landlord and Tenant agree that Tenant may store its equipment and
furniture (collectively, the "Tenant's Personalty") in the storage rooms.
Landlord and Tenant further agree that Tenant may store unassembled modular
furniture in areas that are completed and await final "Certificate of
Occupancy". As to any personalty brought on to such portions of the Demised
premises which are awaiting the final "Certificate of Occupancy" Tenant's right
to bring same on to the Demised Premises is conditioned upon Tenant being
responsible for the safekeeping and security of the same. Landlord, its agents,
servants, employees and contractors shall at no time bear liability for any
items stored by Tenant or its contractors in accord with the provisions of this
Agreement, except to the extent that the liability arises from the negligence or
willful misconduct of the Landlord, its agents, servants, employees,
contractors, visitors and invitees. Furthermore, Landlord, its agents, servants,
employees, contractors, visitors and invitees are hereby released from any
liability with respect to the storage of said items, and its maintenance,
protection, loss, damage of any kind type or nature, except to the extent the
liability arises from the negligence or willful misconduct of the Landlord, its
agents, servants, employees, contractors, visitors and invitees. Tenant
acknowledges that Landlord is not a bailee of Tenant's property. Nothing in this
paragraph is intended to prevent Tenant from fully occupying the First Floor
Space and the Third Floor Space by the dates provided for in the earlier
paragraphs of this Section 3.
The raised floor and the ceiling in the Computer Room have been
completed. Accordingly, Landlord and Tenant acknowledge that Tenant has
delivered and may deliver and install its computer equipment ("Computer
Equipment") in the Computer Room located on the First Floor Space. Tenant shall
be responsible for the said "Computer Equipment", including but not limited to
any loss or damage from any and all causes, except to the extent any such loss
or damage arises from the negligence or willful misconduct of Landlord, its
agents, servants, employees, contractors, visitors and invitees. Tenant hereby
releases Landlord, its agents, servants, employees, contractors, visitors and
invitees from any liability with respect to the said equipment its maintenance,
protection, loss, damage of any kind type or nature, except to the extent the
liability arises from the negligence or willful misconduct of Landlord, its
agents, servants, employees, contractors, visitors and invitees. Tenant
acknowledges that Landlord is not a bailee of Tenant's property.
(e) Notwithstanding anything to the contrary contained in the Lease,
including, without limitation, anything contained in Section 44.01 of the Lease,
Landlord's obligation to pay Holdover Rent pursuant to such Section 44.01 ends
effective August 31, 2005. Tenant is under no obligation to reimburse the
Landlord for any Holdover rent previously paid by the Landlord.
(f) The Expiration Date set forth in Article A (4) of the Lease is
hereby amended so that the Lease term is hereby extended to May 31, 2018.
(g) In consideration of Tenant's agreeing to the Commencement Date and
Rent Commencement Date of December 1, 2005, Landlord and Tenant respectively
hereby forever waives and releases their respective claims one against the other
for Tenant Delay and Landlord Delay. Landlord and Tenant release any claim one
against the other for any and all Delay and any and all additional costs
incurred by either party by reason of any claimed Delay or other failure to
heretofore timely perform their respective obligations under the Lease. In light
of such waiver and release, the deadlines and penalties set forth in Section
22.02 of the Lease, against both Landlord and Tenant, are hereby deleted.
Landlord hereby agrees to work diligently and continually to complete, at
Landlord's sole cost and expense, Landlord's Work and the Additional Work set
forth on Exhibit A hereto as soon as possible using commercially reasonable
efforts and taking into account the necessary coordination of the various trades
and the delivery of items ordered by Landlord prior to the date hereof, but in
no event later than the time periods set forth in 3(d) above.
(h) Except as otherwise provided herein, none of Tenant's employees may
occupy any of the respective spaces until the respective "Certificates of
Occupancy" are received for the respective Demised Premises.
4. In accordance with Section 1.02(d) of the Lease, with the exception of Suite
497, Landlord has relocated the Storage Space to space located in the basement
of the Building. In addition, Tenant has requested and Landlord has agreed to
lease Suite 432 to Tenant as additional storage space. Accordingly, the rent
schedule set forth for Storage Space is hereby deleted in its entirety and the
rent schedule set forth on Exhibit B is inserted in its stead.
5. Article 13 of the Lease is hereby deleted in its entirety and the following
inserted in its stead:
Article 13.
Parking
13.01. Landlord represents that with the availability of the roof deck
parking presently being repaired there is approximately 1,500 available
parking spaces at the Building. It is anticipated that the roof deck repair
will be substantially completed and available for use by the tenants on the
Lease Commencement Date. Landlord shall use commercially reasonable efforts
to have the roof deck repair completed by the Lease Commencement Date,
including having the contractors work continuously on the roof deck repair
weather conditions permitting.
13.02. Landlord and Tenant acknowledge that there will be Eighty-Three (83)
interior reserved and designated parking spaces at the Building on the
middle level. In addition the exterior macadam lot and the front of the
Building are reserved parking areas. Tenant shall not use these reserved
and designated parking areas, except that the Tenant shall have ready
access to all handicapped parking spaces for its employees and invitees in
common with the other tenants, employees and invitees at the Building on a
first come, first serve basis. Notwithstanding the foregoing, as provided
in Subsection 13.03(b) the Tenant may use ten (10) of the eighty-three (83)
middle level reserved spaces.
13.03. Landlord will reserve for Tenant's exclusive use, at no cost to
Tenant for use throughout the term of the Lease, in an enclosed and gated
area or areas, one hundred (100) parking spaces which spaces shall not be
used by other tenants.
(a) Ninety (90) of the reserved parking spaces shall be located in an
enclosed, gated card accessible area. The ninety parking spaces shall
be on the lower level of covered parking. Attached hereto as Exhibit D
is a plan of these enclosed spaces. Landlord reserves the right to
relocate the reserved spaces within the covered parking area of the
garage and in close proximity to the Building, subject to Tenant's
reasonable approval.
Notwithstanding anything in Section 13.01 to the contrary, with the
exception of the gate, which Landlord has ordered but has not yet
received (and which will be installed promptly upon Landlord's receipt
of the same) the lower level parking shall be substantially completed
and available for use by the Tenant and the other tenants by the
Commencement Date. Until such time as the gate has been installed,
Landlord shall, during Business Hours, provide a patrol car to
circulate through the enclosed parking area to insure that the reserved
spaces noted above are available for Tenant's use only.
(b) Tenant shall be given ten (10) of its reserved spaces in contiguous
spaces on the middle level in the generally reserved area referred to in
Article 13.02 above, which area is enclosed, gated and card accessed and
available to other tenants. These spaces shall have the name of the Tenant
painted on the spaces. The Landlord does not undertake to police the use of
these spaces, but upon the Lease Commencement Date, Landlord agrees to
notify the other tenants of the Building in writing that they are not
permitted to park in any parking spaces reserved for Tenant.
Notwithstanding anything in Section 13.01 to the contrary, the middle level
parking shall be substantially completed and available for use by the
Tenant and the other tenants by the Commencement Date.
(c) Tenant agrees to assign all of its reserved parking spaces and to issue
pass cards to its employees for the reserved parking areas. Tenant agrees
to notify those employees issued parking passes for the reserved areas to
park in the reserved areas and not to use the general unreserved parking
spaces. The Tenant shall observe Landlord's rules and regulations for the
issuance of access cards to the reserved parking area, provided they do not
violate any law, rule ordinance or regulation The said regulations shall be
reasonable but may include the requirement to provide a copy of the
Driver's License of the occupants of the reserved area, and the
identification and ownership of each vehicle parked in the reserved area.
Landlord agrees to keep all personally identifiable information strictly
confidential and not share same with any third party.
13.04. In addition to its reserved parking spaces, Tenant may use the
non-reserved spaces in common with other tenants, invitees, guests and
employees at the Building on a first come, first serve basis. Tenant may
use in common with the other Tenant's, their respective employees, invitees
and others the handicapped Spaces at the Building. Tenant shall at no time
park in the commercial spaces at the Building except for a period of less
than ten minutes and then only in connection with deliveries or services.
13.05. Landlord reserves the right, at any time, to reserve on a permanent
basis non-reserved parking spaces at the Building and/or to reduce the
number of parking spaces available at the Building. In the event Landlord
elects to reserve parking spaces to other tenants of the Building, except
for the spaces mentioned in Section 13.02 above that Landlord has currently
reserved or reduce the available parking spaces on a permanent basis that
were formerly available to all tenants, on a first come first serve basis,
then and in such event Landlord shall increase Tenant's reserved enclosed,
gated, card accessible spaces as follows:
One (1) parking space to Tenant for each two (2) parking
spaces reserved for others or reduced permanently from the
approximately 1,500 spaces (which include the reserved and
non-reserved spaces, the handicapped spaces and the commercial
spaces) available when the repairs to the parking garage are
completed at about the Commencement Date. Any such additional
spaces reserved for the Tenant shall be contiguous to the
reserved spaces noted in section 13.03(a) above (Lower Level
Spaces).
(a) It is the intent of the parties that the term "permanent" shall be
deemed to mean the loss of use of existing general undesignated parking
for a period of time in excess of the time needed to effect the
provisions noted in Section 13.08 herein below.
Once Landlord permanently reserves a non-designated space or spaces for any
reason then this designation shall be deemed a permanent designation for the
earlier of (i) full term of the Tenant's Lease and (ii) the date that Landlord
no longer reserves any such spaces.
13.06. Without limiting the above, in the event Tenant leases additional
office space it shall be entitled to one (1) additional reserved enclosed,
card accessed space per one thousand two hundred (1,200) rentable square
feet of space leased. The additional spaces shall be contiguous to the
reserved spaces noted in section 13.03 (a) above. The designation of these
reserved spaces shall not be deemed a diminution of parking at the
Building.
13.07. Tenant shall be given, at no cost and expense, One Hundred (100)
pass cards upon the commencement of the Lease term. Landlord, at no charge
to Tenant, shall replace up to eight (8) pass cards free of charge per
calendar year and thereafter Tenant shall pay $50.00 per pass card in
advance of the same being issued.
13.08. Tenant and Landlord acknowledge that from time to time parking may
be temporarily reduced due to weather conditions, repairs to the parking
structure or to the Building, construction within the parking structure or
the Building or re-paving of the parking lot or outside parking areas.
Tenant acknowledges that the forgoing does not constitute a diminution of
parking spaces, provided that Landlord undertakes all reasonable steps to
promptly restore the original spaces that were temporarily reduced pursuant
to this section 13.08. Tenant acknowledges that from time to time the
number of handicapped spaces may be increased or the number of commercial
spaces may be increased. Such changes do not constitute a diminution of
parking spaces within the meaning of this provision of the Lease.
13.09. Tenant acknowledges that the Lower Parking Level and the Upper
Parking Level may be locked and closed after 9:00 P.M. on weekdays, legal
holidays and Saturday afternoon from 5:00 P.M. through Monday morning at
7:00 A.M. The Tenant agrees to remove its cars from these areas during
those designated hours and to relocate them to the main level or outdoor
parking areas so that the Landlord may lock the gate(s) leading to said
Lower Parking Level and Upper Parking Level. In the event that Tenant's
employees wish to leave a car temporarily in the Lower Parking Level in
connection with Tenant's business Tenant shall notify Landlord of the same
twenty four (24) hours in advance via facsimile and Landlord shall bear no
responsibility for said car while it remains overnight in the Lower Level
Parking. Notwithstanding the foregoing the Landlord agrees that with
advance notice during Tenant's special seasons the Landlord will allow
these areas of the parking lot to remain open and accessible to the Tenant.
6. The following additional modifications are made to the Lease:
A. Sections 2.03 and 2.04 are deleted in their entirety.
B. Subpart (v) of the second paragraph of Section 6.01 is amended in its
entirety to read:
"(v) The cost of said Cosmetic Alterations at no
time, in the aggregate for any one alteration,
exceeds One Hundred and Eighty Thousand ($180,000.00)
Dollars".
7. (a) Landlord and Tenant acknowledge and agree that, pursuant to that
certain Letter Agreement dated August 19, 2005 between Landlord and
Tenant, a copy of which is annexed hereto as Exhibit "C" (the "IT Wiring
Agreement"), (a) Landlord shall not be responsible for (i) the quality or
the timing of the work performed by Tenant's contractor regarding the
installation of Tenant's computer wiring and cabling (the "IT Wiring") or
(ii) any materials or tools stored in the Building by such contractors
and (b) Tenant shall undertake and complete the IT Wiring within each
suite contained in the Demised Premises as well as the IT Wiring
connecting Tenant's respective suites, in and throughout the Building,
including the common areas.
(b) Tenant is solely responsible for the payment of the IT Wiring
contractor and shall deliver to the Landlord, all appropriate
governmental approvals, if same are required, and a waiver of mechanic
lien within thirty days of the Landlord delivering the "Certificate of
Occupancy" for the First Floor Space.
(c) Tenant assumes all liability for the IT Wiring. The IT Wiring in all
manner and form are excluded from any warranties express or implied for
Landlord's work stated under and pursuant to the Lease. The IT Wiring is
not Landlord Work.
(d) Tenant is and shall at all times be responsible for the installation,
repair and maintenance of the IT Wiring.
8. The Workletter attached to the Lease as Exhibit B is amended as follows:
(a) The last paragraph of the Workletter attached as Exhibit B to the
Lease (the "Workletter") is hereby clarified in that such paragraph requires
Landlord to hire Tenant's Architect as a design consultant and expeditor for the
work to be performed by Landlord pursuant to the Workletter at a cost not to
exceed $5,000 ("Architect Allocation"). Said provision is hereby amended to
delete the words "at a cost not to exceed $5,000". Landlord has retained the
firm of Xxxxxx Xxxxx Associates and Landlord shall be solely responsible for the
sums charged by said Architect for the services rendered as a Design Consultant
and Expediter.
(b) Section 11(viii) of the Workletter is hereby amended to provide
that the 250kw diesel back-up generator referred therein shall be located in the
loading dock area of the Building. The Workletter is hereby amended to provide
that the condensers for the Liebert Units will be installed on the roof.
Landlord represents that said installation has been completed.
(c) Landlord hereby agrees that, as part of the Additional Work set
forth on Exhibit "A" hereto, which Landlord shall perform for Tenant pursuant to
this Agreement, Landlord shall purchase and install a second 250kw diesel
back-up generator, at Landlord's cost and expense. Such second generator shall
be located in the loading dock area of the Building at Landlord's sole cost and
expense. Both generators shall be installed, which includes the connections to
the Building's electrical system, in compliance with all applicable codes, laws,
rules and regulations. The generators shall be installed on raised concrete pads
and shall have a post placed on the ground at all the outer corners, said post
to be painted in a bright color or such other method as required by the
appropriate governmental agency.
(d) In accordance with the terms of the Lease, Landlord shall warrant
the installation and the mechanical functioning of the generators for a period
of one year from the Commencement Date. That after the completion of the first
12 months of the Lease following the Commencement Date, Tenant shall at all
times be responsible for the maintenance and repair of the two (2) generators
and shall, at Landlord's option, remove same from the property appurtenant to
the Building (the "Property") at the expiration or earlier termination of the
Lease. During the initial twelve (12) month period from December 1, 2005 through
November 30, 2006, the Landlord shall be responsible for repair of the
generators and the maintenance thereof but only to the extent that the same is
not routine inspections, testing and/or routine maintenance. Both generators
shall be installed by Landlord in an area acceptable to the controlling
governmental agency and, if not, Landlord shall, at its sole cost and expense,
promptly relocate same to an area acceptable to the governmental agency. Without
limiting the provisions of this Section 8, both generators shall be installed
and in good working order by December 10, 2005. The foregoing date does not
include any required governmental certificates or inspection.
(e) Tenant shall prepare, execute, and deliver to the Landlord for
filing the Registration Application for the Storage of Flammable/Combustible
Liquids and send such other documents as may be required by the governmental
agency regulating the generators. The Tenant shall be listed as the "owner and
operator" of the generators. Landlord and Tenant acknowledge that this form has
been duly completed and submitted to the Office of the Fire Xxxxxxxx, County of
Nassau.
(f) The Tenant agrees not to test both generators at the same time. The
Tenant agrees that it may only test the generators from the hours of 7:00 A.M.
to 8:30 A.M. and from 6:00 P.M. to 9:00 P.M. on weekdays and from the hours of
10:00 A.M. until 6:00 P.M. on Saturday, Sunday or Legal Holidays.
(g) The Tenant shall supply and store the diesel fuel required for the
operation of the generators in the tanks provided with the Generators. The fuel
shall be stored and maintained in a safe environmentally safe condition and in
accordance with law and ordinance.
(h) That the condensers for the four 5 ton units of HVAC being
installed on the first floor level shall be installed by Landlord on a secure
shelf above the loading dock. Tenant may also at its cost and expense install up
to 2 condensers (each approximately 20 inches high, 38 inches in length and 29
inches deep and weighing approximately 215 pounds) for Tenant's refrigeration to
be utilized in the retail store on the first floor on a rack that will be
provided by the Landlord in the loading dock above the generators. Landlord will
locate the condensers for the refrigeration such that the access for servicing
shall be substantially similar to the access to the HVAC condensers installed by
Landlord. The condensers and the refrigeration equipment shall be wired to
Tenant's sub meter. The Landlord shall install and wire the HVAC condensers and
the Tenant shall install, connect and wire at its sole cost and expense the
condenser(s) for its refrigeration equipment that shall be wired to the Tenant's
sub meter. Tenant shall at all times be responsible for the maintenance and
repair of such refrigeration equipment and shall, at Landlord's option, remove
it from the Property at the expiration or earlier termination of the Lease.
(i) As part of the Additional Work set forth on Exhibit A to this
Agreement and notwithstanding the capacity limitations set forth in Article 12
of the Lease, Landlord, at its sole cost and expense has provided for Tenant's
exclusive use, a new 600 Amp at 480 volt electrical service. Landlord represents
that the transformers that Landlord provided are installed, are operational and
comply with all applicable codes, rules, laws and regulations. These
transformers as well as the disconnect switches for the generators are installed
in the Tenant's storage space in the basement. Landlord acknowledges that it has
had an opportunity to review the Tenant's current electrical capacity and
current use demands for the Demised Premises and that such demands, including
without limitation any electricity used with reference to the signage to be
installed at the Demised Premises, complies with Article 12 of the Lease. The
parties agree that the new electrical service meets the requirements of Tenant
at the Lease Commencement for the computer room, provided same is in proper
working order.
(j) The parties agree that the electrical capacity from one suite of
the Demised Premises (as each suite is specifically designated in the Lease) to
another suite of the Demised Premises (with the exception of the initial suites
leased to Tenant which are located on the first floor which, for these purposes,
shall be deemed a single suite) may not be interchanged, unless Tenant shall pay
Landlord to install, at Tenant's sole cost and expense, any necessary additional
electrical panels and related wiring. Landlord and Tenant agree that the
Landlord has calculated the wiring of the electric service for Suite 500, the
Third Floor Space and the Lower Level to be at approximately capacity of the
seven xxxxx. The parties acknowledge that the First Floor Space has been
provided with additional electrical capacity through the installation of
additional service and transformers in accord with Tenant's stated requests.
(k) Landlord shall provide Tenant, at Tenant's request, with overtime
heating and air conditioning in the lower level ("Overtime HVAC") of the Demised
Premises at the rate of $82.50 per hour of Overtime HVAC. Landlord may increase
such overtime charge over the term of the Lease by the same percentage that
Landlord increases the overtime charge that it generally charges to other
tenants of the Building. For purposes of the Lease, overtime hours ("Overtime
Hours") are all hours other than 8:00 A.M. to 7:00pm on weekdays, and 8:00am to
1:00pm on Saturdays, excluding legal holidays. Nothing herein is intended to
limit or increase, in any way, the obligations of the Landlord as set forth in
Article 21 of the Lease.
(l) Landlord hereby agrees to allow Tenant to maintain an interior
doorway in the wall between Tenant's the retail store area and the balance of
the adjoining first floor portion of the Demised Premises, provided (a) such
adjoining portion of the first floor space is occupied by certain of Tenant's
employees on a 24 hour a day, 7 day a week basis.
(m) Notwithstanding the requirement set forth in Section (ix)(c) of
Article 11 of Exhibit "B" of the Lease, Landlord shall not be required to supply
and install electric baseboard heating in the CEO's office.
(n) The Landlord and Tenant agree that Tenant has satisfied any claim
for payment towards the restrooms discussed under Section 11(vi) of Exhibit "B"
to the Lease and no monies are due for same from the Tenant.
9. Landlord and Tenant acknowledge and agree that there are currently no parking
spaces located adjacent to Tenant's retail area. Therefore, Paragraph 2 of
Exhibit T of the Lease shall be deemed modified so that, in addition to
permitting Tenant to secure the necessary permits and to supply and install
parking signage at the western side of the Building (similar to that installed
by HSBC on the eastern side), Tenant shall have the right to install, at
Tenant's sole cost and expense, up to five (5) parking spaces in the vicinity of
the retail store area. Tenant shall be responsible to obtain any and all
necessary approvals in connection with the parking spaces. Tenant shall be
responsible for all landscape design and execution subject to Landlord's
approval of the same. Landlord agrees to cooperate, including executing any
documents required, with reference to tenant's obtaining all necessary
approvals. Tenant's right to install parking spaces provided for under this
Section 9 is in addition to Tenant's parking rights under Article 13 hereof.
10. Except as specifically modified by this Agreement, all of the terms and
conditions of the Lease are ratified and confirmed by Landlord and Tenant. All
references to the "Lease" in any future correspondence, notice or dealings
between the parties hereto shall be deemed to refer to the Lease, as amended by
this Agreement.
11. The agreements, terms and conditions contained in this Agreement shall be
binding upon, and inure to the benefit of, Tenant, Landlord and Landlord's
successors and assigns. The Landlord shall forthwith submit this Agreement to
its lender in accord with the terms of its Mortgage.
12. This Agreement may not be changed orally, but only by a writing signed by
the party against whom enforcement may be sought.
13. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this First Lease
Modification Agreement as of the day and year first above written.
LANDLORD:
TREELINE 1 OCR LLC
By: __________________________
C. Xxxxx Xxxxx
President
TENANT:
1-800 XXXXXXX.XXX, INC.
By: _______________________________
Name: _____________________________
Title: ______________________________
Federal Identification No.: _____________
EXHIBIT A
ADDITIONAL WORK TO BE COMPLETED
1) The items set forth under Section 8 of the Agreement
2) HVAC upgraded to 20 additional tons on the first floor
3) 8 Herculite doors on the 5th floor
4) Door between retail store area and the Bridge
5) Counter top room #502
6) Counter, cabinet, & sink in #508
7) Frosted glass on bottom rows (designated rooms on the fifth floor )
8) 15 feet of drywall #501
9) Drywall opening & new closet room #570
10) Dedicated outlet room #548
11) Lower level outlets
12) High hats room #501
13) Supplemental HVAC Lower Level training room
14) Supplemental HVAC room #510 (conference room)
15) Gas meter & installation for CEO & President's offices so that the
offices will be supplied with gas heat by the Landlord
at Tenant's sole cost and expense 16) Rewiring for the generator Lower
Level and 5th floor 17) The additional reserved parking spaces provided for
in this Agreement
EXHIBIT B
RENT SCHEDULE FOR STORAGE SPACE
storage space
Suite 497
Monthly
Lease Year From To Fixed Annual Rent Installment
----- ---- -- ----------------- -----------
1 12/1/2005 11/31/2006 $12,600.00 $1,050.00
2 12/1/2006 11/31/2007 $12,978.00 $1,081.50
3 12/1/2007 11/31/2008 $13,367.34 $1,113.95
4 12/1/2008 11/31/2009 $13,768.36 $1,147.36
5 12/1/2009 11/31/2010 $14,181.41 $1,181.78
6 12/1/2010 11/31/2011 $14,606.85 $1,217.24
7 12/1/2011 11/31/2012 $15,045.06 $1,253.75
8 12/1/2012 11/31/2013 $15,496.41 $1,291.37
9 12/1/2013 11/31/2014 $15,961.30 $1,330.11
10 12/1/2014 11/31/2015 $16,440.14 $1,370.01
11 12/1/2015 11/31/2016 $16,933.35 $1,411.11
12 12/1/2016 11/31/2017 $17,441.35 $1,453.45
13 11/1/2017 5/31/2018 $17,964.59 $1,497.05
Basement Space
Lease Monthly
Year From To Fixed Annual Rent Installment
---- ---- -- ----------------- -----------
1 12/1/2005 11/31/2006 $30,330.00 $2,527.50
2 12/1/2006 11/31/2007 $31,239.90 $2,603.33
3 12/1/2007 11/31/2008 $32,177.10 $2,681.42
4 12/1/2008 11/31/2009 $33,142.41 $2,761.87
5 12/1/2009 11/31/2010 $34,136.68 $2,844.72
6 12/1/2010 11/31/2011 $35,160.78 $2,930.07
7 12/1/2011 11/31/2012 $36,215.61 $3,017.97
8 12/1/2012 11/31/2013 $37,302.07 $3,108.51
9 12/1/2013 11/31/2014 $38,421.14 $3,201.76
10 12/1/2014 11/31/2015 $39,573.77 $3,297.81
11 12/1/2015 11/31/2016 $40,760.98 $3,396.75
12 12/1/2016 11/31/2017 $41,983.81 $3,498.65
13 12/1/2017 5/31/2018 $43,243.33 $3,603.61
Xxxxx 000
Lease Monthly
Year From To Fixed Annual Rent Installment
---- ---- -- ----------------- -----------
1 9/1/2005 8/31/2006 $11,637.00 $ 969.75
2 9/1/2006 8/31/2007 $11,986.11 $ 998.84
3 9/1/2007 8/31/2008 $12,345.69 $1,028.81
4 9/1/2008 8/31/2009 $12,716.06 $1,059.67
5 9/1/2009 8/31/2010 $13,097.55 $1,091.46
6 9/1/2010 8/31/2011 $13,490.47 $1,124.21
7 9/1/2011 8/31/2012 $13,895.19 $1,157.93
8 9/1/2012 8/31/2013 $14,312.04 $1,192.67
9 9/1/2013 8/31/2014 $14,741.40 $1,228.45
10 9/1/2014 8/31/2015 $15,183.65 $1,265.30
11 9/1/2015 8/31/2016 $15,639.15 $1,303.26
12 9/1/2016 8/31/2017 $16,108.33 $1,342.36
13 9/1/2017 2/28/2018 $16,591.58 $1,382.63
EXHIBIT C
IT WIRING AGREEMENT
EXHIBIT D
PARKING
EXHIBIT E
LETTER OF JUNE 6, 2005 MODIFYING TYPOGRAPHICAL ERRORS IN LEASE
EXHIBIT F
PUNCH LIST
Storage Spaces:
1) Install additional ceiling tiles (substantially similar to those
located in lower level storage area) in order to extend out ceiling in
the Basement Storage Area.
2) Reinstall pre-existing doors in the front of the fenced storage area so
that only key access is available. Keys to be held by Landlord and
Tenant.
3) Room 432--complete half finished ceiling and paint walls 4) Room
497--paint walls
First Floor (Computer Room):
1) Install fifteen (15) circuit breakers to the panel for use in the computer
room. 2) Landlord to switch off temporary power source and turn on permanent
power source. 3) Complete Generators Connections.
Fifth Floor:
1) Rm 591--install 2-2x2 light fixtures
2) Rm 594---install 2-2x2 light fixtures
3) Hook up generator power
4) Install white write on paper in the Board Room.
5) Relocate condenser pump in room 508.
6) On the 2 doors leading into legal department, Landlord to reverse the
stops so doors open into the open area outside of the legal department.
EXHIBIT G
TENANT ESTOPPEL CERTIFICATE
TO: Bank of America, N.A.
NC1-027-20-03
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Closing Coordinator
RE: Xxx Xxx Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx
The undersigned (the "Tenant"), as tenant under that certain lease (the
"Lease") dated May 20, 2005, as the same has been modified, made with Treeline
Mineola LLC (together with its successors and/or assigns, the "Landlord"), for
space at the Landlord's property generally described as Xxx Xxx Xxxxxxx Xxxx,
Xxxxx Xxxxx, Xxx Xxxx in Nassau County, State of New York (the "Premises"), a
true and complete copy of which is annexed hereto, hereby certifies as follows:
(1) The Tenant has entered into occupancy of the Premises described in the Lease
and the Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way, except as follows: Letter
Agreement dated June 6, 2005, Letter Agreement dated August 19, 2005, and
First Modification to Lease Agreement dated November 16, 2005 (the "Lease
Modification"). The Lease, as amended as indicated in the preceding
sentence, represents the entire agreement between the parties as to said
leasing.
(2) The commencement date of the term of the Lease is December 1, 2005 and the
expiration date of the term of the Lease is May 31, 2018. The Tenant has no
rights to renew or extend the term of the Lease except as follows: Two
successive five (5) year periods.
(3) Except as specifically set forth in the Lease Modification, all conditions
of the Lease to be performed by the Landlord and necessary to the
enforceability of the Lease as of the date hereof have been satisfied. There
are no defaults by either the tenant or, to the Tenant's knowledge, the
Landlord thereunder, and, to the Tenant's knowledge, no event has occurred
or situation exists which would, with the passage of time, constitute a
default under the Lease. All improvements or work required under the Lease
to be made by the Landlord to date, if any, have been completed. On this
date there are no existing defenses, offsets, claims or credits which the
Tenant has against the enforcement of the Lease by the Landlord.
(4) Monthly rent is payable on the 1st day of each month. The initial fixed
monthly rent is $180,192.33 which amount escalates as specifically set forth
in the Lease. All rent due for the current month has been paid, and no rents
have been prepaid more than two (2) months in advance. The Tenant has paid
to the Landlord a security deposit in the amount of $0.
(5) The Tenant has no option or preferential right to purchase all or any part
of the Premises, or the land of which the Premises are a part. The Tenant
has no rights or interest with respect to the Premises other than as a
tenant under the Lease. The Tenant has not assigned or sublet its interest
in the Premises.
(6) That as of the date hereof, there are no actions, whether voluntary or
otherwise, pending against the Tenant under the bankruptcy or insolvency
laws of the United States or any state thereof.
(7) The Tenant understands that Bank of America, N.A., (the "Lender") intends to
make a mortgage loan (the "Loan") to the Landlord (or its successor and/or
assign with respect to the Landlord's interest in the Lease) in reliance
upon, among other things, this certificate, and that the Lender's successors
and/or assigns may rely on this certificate in making, or acquiring any
interest in, the aforesaid Loan. The Tenant hereby acknowledges that the
Lease and the rent and other sums due thereunder are to be assigned by the
Landlord to the Lender as security for the Loan. If the Lender becomes the
owner of the Premises demised under the Lease, such as by foreclosure, the
Tenant shall attorn to Lender as landlord under the Lease. If the Lender or
any entity servicing the Loan for the Lender notifies the Tenant of a
default under the Loan Documents evidencing the Loan and demands that the
Tenant make all rental and all other payments under the Lease directly to
the Lender or a designated lockbox or elsewhere, the Tenant shall honor such
demand and shall make all rental and other Lease payments as required
pursuant to such notice and demand.
EXECUTED effective as of this 1st day of December, 2005.
TENANT:
1-800 FLOWERS .COM, INC.
By: __________________________
(SEAL)
Name:_________________________
Title: _______________________
ATTEST/WITNESS:
