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Exhibit 10.58a
LEASE AMENDMENT II
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THIS AGREEMENT, made this 30th day of June, 1993 by and between CONIFER
PENFIELD ASSOCIATES, L.P., a New York State Limited Partnership, with offices at
000 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, 00000 ("Landlord") and MONRO MUFFLER
BRAKE, INC., a New York State Corporation, with offices at 0000 Xxxxxxxx
Xxxxxxxxx Townline Road, X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxx, 00000 ("Tenant").
WITNESSETH:
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WHEREAS, Tenant currently leases from the Landlord a parcel of
land heretofore designated the "Premises" which forms a portion of Parkside
Commons heretofore designated the "Plaza" pursuant to a Lease Agreement dated
May 12, 1989 as modified by a Lease Amendment dated December, 1992, (the
"Original Lease"), and;
WHEREAS, said Premises has situate thereon a building having
an approximate floor area of 4,470 square feet, and;
WHEREAS, Tenant desires Landlord to construct an additional
1,200 square feet of space ("Additional Space") to said building, and;
WHEREAS, the construction of the Additional Space is to be in
accordance with the provisions set forth in Paragraph "11" hereof, and;
WHEREAS, based upon the above, the parties desire to
amend/modify, as well as restate certain provisions of the Original Lease upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, upon and subject to the provisions, terms and
conditions herein set forth, the parties agree as follows:
1. Upon the "effective date" of this Amendment as set forth in
Paragraph "2 (b)" below, the Premises shall have situate thereon a building
having an approximate square footage of 5,670 square feet (the "Building"), all
as shown on Attachment "A".
2. (a) Upon the "effective date" of this Amendment, the
balance of the initial term of this Lease shall be seventeen (17) years
commencing on the effective date of this Amendment and terminating seventeen
(17) years thereafter;
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(b) The "effective date" of this Amendment shall be deemed
to be the date occurring ten (10) days after the substantial completion of
Landlord's Work required under this Amendment and the delivery of the Additional
Space to the Tenant. Substantial completion shall mean completion in accordance
with the provisions of Paragraph "11" hereof and other applicable requirements
except for punchlist items which are immaterial and which will not prevent the
Tenant from commencing the work required of it under this Amendment as set forth
in Paragraph "11". The parties agree to sign an acknowledgment which shall be
attached to this Amendment indicating the effective date thereof;
(c) In addition, provided that Tenant is not in default
hereunder beyond any applicable cure period, the Tenant shall have four (4)
successive options to renew this Lease, with each option period being five (5)
years in length. Said renewal (s) shall be upon the same terms and conditions as
set forth herein except that base rent shall be as set forth in Paragraph "3(a)"
below and except that the fourth option period shall contain no further renewal
terms. Tenant shall be required to give written notice to the Landlord of its
election to exercise an option no later than 180 days prior to the expiration of
its initial term or any option period. Notwithstanding, in the event Tenant does
not timely exercise an option as set forth above, the Landlord shall be required
to give the Tenant written notification that it has failed to exercise said
option. The notification of the Landlord shall require the Tenant to notify said
Landlord in writing within ten (10) days of its receipt of Landlord's
notification of its intention to exercise its option to renew this Lease and, if
Tenant fails to do so, said renewal rights shall be deemed to have then expired.
3. (a) Upon the effective date of this Amendment, Tenant
agrees to pay Landlord at its address indicated above or at such other place as
Landlord may designate by written notice the following base rent (FORMERLY
DESIGNATED "MINIMUM RENT") subject to exercise by Tenant of the applicable
renewal option in the case of option rent:
INITIAL TERM ANNUAL BASE RENT MONTHLY BASE RENT
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Year 1 $72,000.00 $6,000.00
Year 2 72,000.00 6,000.00
Year 3 72,000.00 6,000.00
Year 4 72,000.00 6,000.00
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INITIAL TERM ANNUAL BASE RENT MONTHLY BASE RENT
------------ ---------------- -----------------
Year 5 72,000.00 6,000.00
Year 6 79,200.00 6,600.00
Year 7 79,200.00 6,600.00
Year 8 79,200.00 6,600.00
Year 9 79,200.00 6,600.00
Year 10 79,200.00 6,600.00
Year 11 87,120.00 7,260.00
Year 12 87,120.00 7,260.00
Year 13 87,120.00 7,260.00
Year 14 87,120.00 7,260.00
Year 15 87,120.00 7,260.00
Year 16 95,832.00 7,986.00
Year 17 95,832.00 7,986.00
FIRST OPTION
TERM ANNUAL BASE RENT MONTHLY BASE RENT
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Year 18 95,832.00 7,986.00
Year 19 95,832.00 7,986.00
Year 20 95,832.00 7,986.00
Year 21 105,415.00 8,784.58
Year 22 105,415.00 8,784.58
SECOND OPTION
TERM ANNUAL BASE RENT MONTHLY BASE RENT
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Year 23 105,415.00 8,784.58
Year 24 105,415.00 8,784.58
Year 25 105,415.00 8,784.58
Year 26 115,957.00 9,663.08
Year 27 115,957.00 9,663.08
THIRD OPTION
TERM ANNUAL BASE RENT MONTHLY BASE RENT
------------ ---------------- -----------------
Year 28 115,957.00 9,663.08
Year 29 115,957.00 9,663.08
Year 30 115,957.00 9,663.08
Year 31 127,553.00 10,629.42
Year 32 127,553.00 10,629.42
FOURTH OPTION
TERM ANNUAL BASE RENT MONTHLY BASE RENT
------------ ---------------- -----------------
Year 33 127,553.00 10,629.42
Year 34 127,553.00 10,629.42
Year 35 127,553.00 10,629.42
Year 36 140,308.00 11,692.33
Year 37 140,308.00 11,692.33
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The annual base rent (hereinafter referred to as the "Base
Rent") shall be paid in twelve (12) equal monthly installments in advance on the
first day of each and every month throughout the term or any renewal term of
this Lease without offset or demand.
Each lease year is defined to be a period of twelve (12)
consecutive calendar months with the first year beginning on the effective date
(as hereinbefore defined) and ending on the last day of the twelfth full month
thereafter and so on and so forth except as otherwise set forth herein.
(b) Notwithstanding the above, commencing on the first day
of the first month following the execution of this Amendment and continuing each
month thereafter until the effective date of this Lease (the "interim period"),
the monthly base rent of the Tenant shall be Five Thousand Ninety Seven and
50/100 Dollars ($5,097.50) due in advance on the first day of each month subject
to adjustment at the conclusion of the interim period as hereinafter set forth.
At the conclusion of the interim period, Tenant shall provide to Tenant a
written report of its gross sales (less sales tax collected from customers and
remitted to the taxing entity, tire sales, sales to vendors, parts returns,
service adjustments and vending machine sales) ("Sales") made in, upon or from
the Premises during said interim period: said report shall be signed/attested to
by the accountants for the Tenant. The Sales during the interim period shall be
compared to the Sales for the same period for the previous year(s). If Sales
during the interim period have increased over that same period for the previous
year(s), the amount of the increase shall be multiplied by 6.75% and the
resulting amount shall be paid as further additional rent to the Landlord within
thirty (30) days of the conclusion of the interim period. If Sales decrease
during the interim period as compared to the same period for the previous
year(s) the amount of the decrease shall again be multiplied by 6.75% and the
resulting amount shall be treated as a credit against future rent due by the
Tenant provided said credit shall not exceed a sum which would reduce Tenant's
monthly base rent during the interim period below an average of Four Thousand
Ninety Seven and 50/100 Dollars ($4,097.50).
EXAMPLE:
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If Tenant's Sales for December 1, 1992 to July 31, 1993
(interim period) were $700,000.00 as compared to $600,000.00 for December 1,
1991 to July 31, 1992 (the previous year(s)).
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Then in such event the excess sales of $100,000.00 during the interim period
would be multiplied by 6.75% and the resulting amount of $6,750.00 would be
deemed additional rent owed by Tenant.
(c) Any rent due by the Tenant to the Landlord prior to the
interim period shall be paid in full within thirty (30) days of the commencement
of the interim period.
4. Tenant's use of the premises is subject to the following:
(a) Tenant shall not obstruct sidewalk entrances, passages,
concourses, corridors, vestibules, halls, elevators, loading docks and stairways
in or about the Plaza. Tenant shall not commit any nuisance on or about the
Plaza;
(b) All exterior signage that the Tenant desires to be
placed on or about the Premises shall be subject to the prior written consent of
the Landlord as to location, size, style and content, which shall not be
unreasonably withheld or delayed. Notwithstanding Landlord hereto consents to
Tenant's current exterior signage. The cost of any signage shall be the sole
responsibility of the Tenant;
(c) Tenant shall comply with all applicable federal, state
or municipal laws, ordinances and regulations relating to the use of the
Premises and shall not directly or indirectly make any use of the Premises which
may be prohibited by any thereof or which shall be dangerous to person or
property or which shall increase the cost of insurance or require additional
coverage by the Landlord provided the Landlord represents that Tenant's
permitted use as specified herein complies with all such laws, ordinances and
regulations. It is understood between the parties that in no event will Tenant's
additional rent payment be increased as a result of an increase in the cost of
insurance to the Landlord as a sole result of another Tenant's use, except for
normal expansion of the Plaza.
(d) Nor shall Tenant conduct any auction or going out of
business or bankruptcy sale without Landlord's prior written consent;
(e) Tenant agrees that during the term of this Lease, it
will not allow its premises to become vacant for more than fourteen (14)
consecutive days and will continue to operate its business in the Plaza. If in
the event Tenant fails to operate an ongoing business in its premises except if
prevented from doing so by fire or other disaster or a taking or partial talking
by eminent domain or other
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cause reasonably beyond its control or otherwise excused hereunder, then in that
event the Tenant shall be deemed to have breached this Lease and shall be in
default thereof;
(f) Tenant shall be required to maintain all dumpsters in
an enclosed portion of the Building as required by the Town of Penfield and as
shown on attachment "B."
5. Landlord shall have the following rights:
(a) To temporarily close all or any portion of the common
areas of the Plaza including the parking area but only to the extent to prevent
a dedication thereof or the accrual of any right of any person or the public
therein;
(b) To temporarily close all or any portion of the common
areas to discourage non-customer use or to allow for performance of obligations
under this Lease including the Landlord's obligation to perform ROUTINE
MAINTENANCE to the Plaza or surrounding areas, PROVIDED THE COMMON AREAS ARE NOT
CLOSED AT ANY ONE TIME FOR GREATER THAN A 24-HOUR PERIOD. NOTWITHSTANDING THE
ABOVE, THE LANDLORD SHALL BE UNDER AN OBLIGATION TO GIVE THE TENANT REASONABLE
NOTICE IN ADVANCE OF ANY MAINTENANCE TO BE PERFORMED TO THE COMMON AREAS WHICH
WILL TEMPORARILY CLOSE ANY PORTION THEREOF. THE LANDLORD SHALL PERFORM SAID
ROUTINE MAINTENANCE TO THE COMMON AREAS IN A MANNER WHICH WILL NOT HAVE A
SUBSTANTIAL ADVERSE IMPACT UPON THE BUSINESS OF THE TENANT;
(c) To erect additional buildings on the common areas or
parking areas or to change locations of buildings or other structures at the
Plaza excluding Tenant's Building located thereon;
(d) To install and maintain any and all signs in the common
areas;
(e) To make repairs, alterations, additions or improvements
which are the obligations of the Landlord under this Lease in or about the Plaza
and to enter upon the Premises if necessary to accomplish the same and during
the continuance of the same, to temporarily close doors, entrances, public
spaces and corridors to the common areas and to interrupt or temporarily suspend
services or facilities all without abatement of rent or affecting any of
Tenant's obligations hereunder provided the Premises are reasonably accessible
and further provided the Landlord proceeds in a reasonable expeditious manner.
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The above-enumerated rights of the Landlord shall not be
construed to be limiting in nature and Landlord shall have all other rights and
remedies as set forth under this Lease or at law or in equity and said rights
shall be cumulative to the extent inconsistent with one another.
Notwithstanding the foregoing, the activities of Landlord in
this paragraph shall not interfere with Tenant's use and enjoyment of the
Premises and the common areas.
6. (a) Upon termination of this Lease by expiration or
otherwise, Tenant shall immediately vacate said Premises and surrender
possession thereof including all keys as herein required to Landlord; Tenant
shall surrender the Premises in broom clean and in as good condition as when
Tenant took possession except for reasonable wear and tear; Tenant grants to
Landlord full authority and license to enter the Premises to take possession in
the event of any termination of this Lease;
(b) Upon surrender of the Premises, provided Tenant is not
in default under this Lease, Tenant may remove its trade fixtures, business
equipment, carpeting, interior and exterior signs, millwork, counters and
cabinets provided that Tenant repairs any damage to the Premises caused by such
removal.
7. Each party agrees that from time to time upon not less than
ten (10) days' prior request by the other party it will deliver to the other
party a statement in writing certifying to the extent the same is true that the
Lease is unmodified and in full force and effect (or if there have been any
modifications, that the same is in full force and effect as modified and
identifying said modifications) as well as identifying the dates to which rent
and other charges have been paid, as well as stating that as far as the person
making this certificate knows the other party is not in default under the
provisions of this Lease if such is the case;
8. (a) Tenant shall comply with all applicable laws, rules and
regulations of all governmental authorities relating to environmental matters,
hazardous waste and hazardous substance in similar matters in the use and
occupancy of the Premises under this Lease. Tenant agrees to indemnify, defend
and hold Landlord and its officers, partners, employees and agents harmless from
any claims, judgments, damages, fines, penalties, costs, liabilities or loss
including attorneys' fees, consultant fees and
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experts' fees which arise during or after the term or any renewal term in
connection with Tenant's use and occupancy of the Premises;
(b) Landlord agrees to indemnify and hold Tenant harmless
from any and all claims, judgments, damages, fines, penalties, costs,
liabilities or loss including attorneys' fees, consultant fees and expert fees
arising from or in connection with any pollution or hazardous or toxic substance
in or about the Premises or the Plaza which violates any applicable federal,
state or other environmental laws and which is not caused by Tenant or persons
under Tenant's direction and control and all expenses in defending against any
such claims.
9. This Amendment and the performance hereunder by the
Landlord and Tenant is expressly contingent upon receipt of all necessary
governmental approvals for the Additional Space to the Building, which approvals
shall be satisfactory to Tenant and Landlord. It is understood between the
parties that the cost of obtaining said governmental approvals shall be the sole
responsibility and obligation of the Tenant. If the parties are not able to
acquire the necessary governmental approvals for said Additional Space, then it
is understood between the parties that the Original Lease shall remain in all
respects in full force and effect including the payment of rent as set forth
therein.
10. (a) The Landlord covenants and agrees to construct
Additional Space to the Building located on the Premises in accordance with the
drawings and specifications prepared for said Building and approved in writing
by Landlord and Tenant which working drawings and specifications are set forth
on Attachment "C". The Landlord will complete and be responsible for the
addition and improvements thereto in accordance with said working drawings and
specifications ("Landlord's Work"). Notwithstanding the cost of the working
drawings and specifications shall be the sole expense of the Tenant;
(b) Landlord's Work shall be placed for construction bid by
Landlord with two (2) contractors acceptable to Tenant. If the two (2) bids
secured are unacceptable to Tenant, it may elect within ten (10) days of its
receipt of said bid packages to terminate and cancel the provisions of this
Lease Amendment II, in which case the terms of the Original Lease shall remain
in full force and effect including the payment of rent as set forth therein. In
the event Landlord's Work is to exceed a cost of
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Sixty Thousand and 00/100 Dollars ($60,000.00) (and Tenant elects not to
terminate the provisions of this Lease Amendment II) the cost in excess of Sixty
Thousand and 00/100 Dollars ($60,000.00) shall be billed directly to the Tenant
who shall be required to reimburse and pay the Landlord for said excess cost in
cash or certified funds no later than thirty (30) days from the date of receipt
of Landlord's invoice/billing;
(c) Landlord will commence construction of Landlord's Work
immediately following receipt by Landlord of final waivers, approvals, consents
or permits from all governmental authorities or other parties as are necessary
for the commencement of Landlord's Work hereunder. It is understood that the
approval of Tenant's drawings/specifications by Tenant are subject to
modifications of the existing structure imposed by the Town of Penfield only to
the extent Tenant deems said modifications acceptable;
(d) Landlord agrees to perform Landlord's Work in a good
and workmanlike manner in accordance with all applicable laws, rules and
regulations and to utilize first quality new materials unless otherwise set
forth in the working drawings and specifications;
(e) All work in connection with said Additional Space other
than that to be so performed by the Landlord is to be done by Tenant as set
forth on Attachment "D" at Tenant's sole expense ("Tenant's Work");
(f) Landlord agrees, at Landlord's expense, to obtain and
maintain public liability insurance adequate to fully protect Tenant as well as
Landlord from and against any and all liability for death or injury to person,
or, damage to property by reason of the construction of Landlord's Work. Tenant
agrees, at Tenant's expense to obtain and maintain public liability insurance
and worker's compensation insurance adequate to fully protect Landlord as well
as Tenant from and against any and all liability for death or injury to person
or damage to property by reason of the construction of Tenant's Work;
(g) In the event Landlord's Work and Tenant's Work shall
progress simultaneously, Landlord shall not be liable for any injury to person
or damage to property of tenant, or of Tenant's employees, licensees or
invitees, from any cause whatsoever occurring upon or about the
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Premises, and Tenant shall indemnify and hold Landlord harmless from any and all
liability and claims arising out of or connected with any such injury or damage
provided that the liability or claim is not the result of the Landlord's ACTS OR
OMISSIONS. Likewise, Tenant shall not be liable for any injury to person or
damage to property of Landlord or of Landlord's employees, licensees or invitees
from any cause whatsoever occurring upon or about the Premises and Landlord
shall indemnify and hold Tenant harmless from any and all liabilities and claims
arising out of or connected with any such injury or damage provided that the
liability or claim is not a result of the Tenant's ACTS OR OMISSIONS;
(h) Upon the occurrence of substantial completion of the
addition by the Landlord, Tenant shall immediately take possession of the
Premises and commence to perform Tenant's Work and install Tenant's equipment
and fixtures. Tenant's Work shall be performed in accordance with the approved
plans and specifications for that work, good construction practices, applicable
legal requirements and insurance requirements;
(i) For a period of one (1) year from the date of
substantial completion of Landlord's Work (THE "WARRANTY PERIOD"), Landlord
shall warrant its work to be free from material defects due to a failure to have
been constructed in a skillful manner. IN ADDITION, DURING THE WARRANTY PERIOD
LANDLORD WARRANTS THAT ALL MATERIALS INSTALLED BY IT FOR THE ADDITIONAL SPACE
BEING CONSTRUCTED SHALL BE FREE OF DEFECTS BEYOND NORMAL WEAR AND TEAR AND
NORMAL DETERIORATION. Thereafter, all repairs relating to Landlord's Work shall
be the sole responsibility of the Tenant except as otherwise set forth in the
Original Lease.
11. Except for the amendments/modifications set forth herein,
all the remaining provisions of this Amendment and the Original Lease shall
remain in full force and effect. In the event of any inconsistencies or
conflicts between this Amendment and the Original Lease, the provisions of this
Amendment shall control in each instance.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seal the day and year first above written.
CONIFER PENFIELD ASSOCIATES, L.P.
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By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Managing
General Partner
MONRO MUFFLER BRAKE, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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