SPACE SUBSTITUTION AGREEMENT
This SPACE SUBSTITUTION AGREEMENT (this "Agreement") is made as of the 2nd
day of January, 2008 between LIGHTHOUSE 444 LIMITED PARTNERSHIP, having an
address c/o Lighthouse Real Estate Ventures, Inc., 00 Xxxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxx Xxxx 00000 ("Landlord"), and SHELTER EXPRESS CORP., a New York
corporation having an address at 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("Tenant").
W I T N E S S E T H:
WHEREAS, under date of April 27, 2005, Landlord entered into a lease with
GTJ Co., Inc., predecessor in interest to Tenant, affecting a portion of the
third (3rd) floor, designated as Suite 370, and a portion of the basement, all
of which space is located in the building known as 000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx (referred to herein as the "Building"), for a term to expire on August
31, 2010, unless sooner terminated pursuant to any of the terms, covenants and
conditions of said lease or pursuant to law (said lease, as same may have been
modified by various written agreements, if any, is referred to as the "Lease";
the premises demised therein together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed
therein, other than Tenant's Property, as defined in the Lease, are referred to
herein, collectively, as the "Demised Premises"); and
WHEREAS, Tenant now desires to surrender to Landlord that portion of the
Demised Premises located in the basement of the Building (such space together
with all the appurtenances, fixtures, improvements, additions and other property
attached thereto or installed therein other than Tenant's Property, is referred
to as the "Surrender Space") and lease an additional portion of the third (3rd)
floor of the Building, designated as Suite 360 and indicated by outlining and
cross-hatching on the floor plan initialed by the parties annexed hereto and
made a part hereof as Exhibit A (such space together with all the appurtenances,
fixtures, improvements, additions and other property attached thereto or
installed therein other than Tenant's Property, is referred to as the
"Substitute Space").
WHEREAS, Landlord and Tenant have reached certain agreements with respect
to the foregoing and desire to record their understandings herein as follows:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Landlord and Tenant hereby agree as follows:
1. (a) On or before the date on which Landlord substantially completes
Landlord's Substitute Space Work (as hereinafter defined), Landlord shall
deliver a notice to Tenant setting forth the date on which Tenant shall be
required to vacate and surrender to Landlord the Surrender Space (such date
referred to herein as the "Surrender Date"), which Surrender Date shall be at
least five (5) days next following the date of the giving of such notice. On or
prior to the Surrender Date, Tenant shall vacate and surrender the Surrender
Space to Landlord in accordance with the provisions of Article 21 of the Lease
and may take possession of the Substitute Space. The "Substitute Space
Commencement Date" shall be deemed to occur as of the earlier of the following
two (2) dates: (i) the date Tenant shall take possession of the Substitute
Space; or (ii) the date next following the Surrender Date.
(b) Notwithstanding anything in Subsection (a) of this Paragraph 1 to the
contrary, if, on or prior to the Surrender Date, Landlord shall have failed
substantially to complete Landlord's Substitute Space Work, then: (i) the
Surrender Date shall not be deemed to be the date set forth in the notice
delivered by Landlord to Tenant pursuant to said Subsection (a) but shall,
instead, shall be deemed to be a date, fixed by Landlord in a notice to Tenant,
not sooner than five (5) days next following the date of the giving of such
notice, and (ii) neither the validity of this Agreement nor the Lease nor the
obligations of Tenant under this Agreement or the Lease shall be affected
thereby.
2. Except as expressly set forth in this Agreement, Tenant agrees to accept
possession of the Substitute Space in the condition existing as of the
Substitute Space Commencement Date, and further agrees that Landlord shall have
no obligation to prepare the Substitute Space for Tenant's use and occupancy. As
of the Substitute Space Commencement Date, the Substitute Space shall hereby be
deemed to be a part of the Demised Premises for all purposes of the Lease as
though the Substitute Space were initially leased by Landlord to Tenant without
in any way affecting any of the terms, covenants or conditions of the Lease,
except as expressly set forth herein.
3. As of the Substitute Space Commencement Date, the Lease shall be deemed
amended as follows:
(a) All references to the Demised Premises shall be deemed to exclude
the Surrender Space and include the Substitute Space.
(b) Notwithstanding the provisions of Section 1.03 of the Lease, the
Fixed Rent payable with respect to the entire Demised Premises for the
remainder of the Demised Term shall be as follows:
i $200,548.33 for the remainder of the Third Rent Period, payable
in equal monthly installments of $16,712.36;
ii $206,564.78 for the Fourth Rent Period, payable in equal
monthly installments of $17,213.73; and
iii $212,761.73 for the Fifth Rent Period, payable in equal
monthly installments of $17,730.14.
Tenant agrees and acknowledges that it shall not be entitled to any rent credit
or free rent with respect to the Substitute Space.
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(c) The term "Demised Premises Area" as defined in Section 23.01E of
the Lease shall be deemed to mean 3,545 rentable square feet with respect
to the Substitute Space (6,912 rentable square feet with respect to the
entire Demised Premises) in a building of 103,528 rentable square feet.
Accordingly, the reference to "3.2523%" in the definition of "Tenant's
Proportionate Share" in Section 23.01G shall be amended to read "6.676%."
(d) GTJ REIT, Inc., Tenant's parent company, shall be deemed to be a
Permitted Occupant in addition to The Transit Alliance for purposes of
Section 11.06 of the Lease.
(e) Each reference to "ten (10) parking spaces" in Section 29.08 of
the Lease shall be amended to read "thirteen (13) parking spaces."
(f) The phrase "the rentable square footage of the Storage Space is
2,300 square feet" shall be deleted from Section 38.02 of the Lease and the
phrase "the rentable square footage of the remainder of the Demised
Premises is 3,367 square feet" shall be amended to read "the rentable
square footage of the Demised Premises is 6,912 square feet".
(g) The provisions of Section 41.01(A) of the Lease shall be amended
such that the Fixed Rent due and payable for the First Renewal Term shall
be restated as follows:
1. $219,144.58 per annum ($18,262.05 per month) for the period
from the First Renewal Commencement Date to and including the last day
of the calendar month in which the day immediately preceding the first
(1st) anniversary of the First Renewal Commencement Date shall occur;
2. $225,718.92 per annum ($18,809.91 per month) for the next year
of the First Renewal Term;
3. $232,490.48 per annum ($19,374.21 per month) for the next year
of the First Renewal Term;
4. $239,465.20 per annum ($19,955.43 per month) for the next year
of the First Renewal Term; and
5. $246,649.15 per annum ($20,554.10 per month) for the remainder
of the First Renewal Term.
Furthermore, Tenant acknowledges that the allocation of Fixed Rent to the
Storage Space (as contemplated in clauses a-e of Section 41.01(A)) shall be
deemed of no further force or effect.
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(h) The provisions of Section 41.01(B) of the Lease shall be amended
such that the Fixed Rent due and payable for the Final Renewal Term shall
be restated as follows:
1. $254,048.63 per annum ($21,170.72 per month) for the period
from the Final Renewal Commencement Date to and including the last day
of the calendar month in which the day immediately preceding the first
(1st) anniversary of the Final Renewal Commencement Date shall occur;
2. $261,670.09 per annum ($21,805.84 per month) for the next year
of the Final Renewal Term;
3. $269,520.19 per annum ($22,460.02 per month) for the next year
of the Final Renewal Term;
4. $277,605.80 per annum ($23,133.82 per month) for the next year
of the Final Renewal Term; and
5. $285,933.97 per annum ($23,827.83 per month) for the remainder
of the Final Renewal Term.
Furthermore, Tenant acknowledges that the allocation of Fixed Rent to the
Storage Space (as contemplated in clauses a-e of Section 41.01(B)) shall be
deemed of no further force or effect.
(i) Section 1.03E, Section 1.06, Article 39 and Exhibits A-2 and B of
the Lease shall be deemed deleted therefrom and shall be of no further
force and effect.
4. Tenant acknowledges that it is fully familiar and satisfied with the
Substitute Space and the condition thereof, and agrees to accept the Substitute
Space in its "As Is" condition as of the Substitute Space Commencement Date,
subject, however, to substantial completion of Landlord's Substitute Space Work
(as defined in Exhibit B of this Agreement). The taking of possession of the
Substitute Space shall be conclusive evidence of satisfactory delivery of the
same by Landlord. Landlord shall not be obligated to perform any alterations,
improvements or repairs to the Substitute Space to ready the same for Tenant's
occupancy thereof, except that Landlord shall, within a reasonable period of
time after the date of this Agreement, using Building standard materials and
finishes, cause the Substitute Space to be built out in accordance with the
provisions of Exhibit B annexed hereto and made a part hereof. Landlord's
Substitute Space Work shall be deemed substantially complete when Tenant is able
to occupy and utilize the Substitute Space for the uses set forth in Section
2.01 of the Lease despite there being minor items that remain to be completed.
Upon delivery of the Substitute Space, Tenant will execute a letter agreement
memorializing the Substitute Space Commencement Date (but the execution of said
letter shall not be a condition precedent to the occurrence of the Substitute
Space Commencement Date).
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5. As of the date hereof, the address for notices, demands, requests or
other communications set forth in Section 27.01(b) of the Lease with respect to
the Landlord shall be deemed to be: c/o Lighthouse Real Estate Ventures, Inc.,
00 Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxx 00000, with a copy in all
instances to Xxxxxxxx & Fleece, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxx, Esq.
6. This Agreement may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
7. The covenants, conditions, provisions and agreements contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective legal representatives, successors and assigns, except as otherwise
provided in the Lease.
8. Landlord and Tenant each represents that it has not dealt with any
person or broker in connection with this transaction and agrees to defend,
indemnify and hold harmless the other party from and against any and all
liability (statutory or otherwise), claims, actions, suits, demands, damages,
judgments, costs, interest and expenses of any kind or nature of anyone
whomsoever (including, but not limited to, counsel fees and disbursements), to
which such other party may be subject or which such other party may suffer by
reason of any breach of this representation. Landlord represents to Tenant that
Lighthouse Real Estate Management was not involved in this transaction as a
broker.
9. It is specifically understood and agreed, that the submission of this
Agreement to Tenant shall not be construed as an offer, nor shall Tenant have
any rights with respect thereto unless and until Landlord shall execute a copy
of this Agreement and deliver the same to Tenant.
10. Any capitalized terms used, but not defined, herein shall have the
meanings ascribed to them in the Lease.
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IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement as of the day and year first above written.
LANDLORD:
LIGHTHOUSE 444 LIMITED PARTNERSHIP
By: Lighthouse 444 Operating, LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Member
TENANT:
SHELTER EXPRESS CORP.
By: /s Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: President
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EXHIBIT A
Floor Plan for Substitute Space
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EXHIBIT B
LANDLORD'S SUBSTITUTE SPACE WORK
I. Landlord agrees to supply and install in the Substitute Space all of the
items set forth on Landlord's Substitute Space Work Plans referred to in
Paragraph IV of this Exhibit B, as it may be modified to reflect any Change Work
(as defined in Paragraph IV), unless prevented by job conditions or other
circumstances beyond the reasonable control of Landlord or unless variations
thereto are necessary to comply with Legal Requirements (such work and
installations are referred to herein as "Landlord's Substitute Space Work").
II. Landlord's Substitute Space Work shall be equal to standards adopted by
Landlord for the Building. Landlord's Substitute Space Work shall constitute a
single non-recurring obligation on the part of Landlord. In the event the Lease
is renewed or extended for a further term by agreement or operation of law,
Landlord's obligation to perform Landlord's Substitute Space Work shall not
apply to any such renewal or extension.
III. Subject to the provisions of Paragraphs IV(4) and VI of this Exhibit B,
Landlord's Substitute Space Work shall be substantially completed prior to the
Substitute Space Commencement Date. At any time after such substantial
completion, Landlord may enter the Demised Premises to complete unfinished
details of Landlord's Substitute Space Work and entry by Landlord, its agents,
servants, employees or contractors for such purpose shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise.
IV. (1) Landlord shall submit to Tenant a complete set of plans and
specifications (referred to herein as "Landlord's Substitute Space Work Plans")
for those Alterations to the Demised Premises comprising Landlord's Substitute
Space Work. In the event that Tenant shall have any comments or concerns with
respect to Landlord's Substitute Space Work Plans (or any revisions thereof),
Tenant shall deliver a notice to Landlord, within five (5) days immediately
following Tenant's receipt of Landlord's Substitute Space Work Plans (or any
revisions thereof), setting forth such comments or concerns. Time is of the
essence with respect to the delivery of any such notice from Tenant to Landlord.
Any notice setting forth comments or concerns with respect to Landlord's
Substitute Space Work Plans delivered to Landlord after such five (5) day period
shall be of no force or effect. In the event that Tenant delivers any such
notice to Landlord after said five (5) day period or if Tenant fails to deliver
any such notice to Landlord, then in such event, Landlord's Substitute Space
Work Plans (and any revisions thereof) shall be deemed approved.
(2) Landlord shall deliver to Tenant, along with the complete set of
Landlord's Substitute Space Work Plans pursuant to subdivision (1) above, a
notice identifying which items contained in Landlord's Substitute Space Work
Plans, if any, will or might be subject to certain delays in delivery and which
might affect the date of substantial completion of Landlord's Substitute Space
Work. Tenant may, within five (5) days after such notice from Landlord,
designate, subject to the limitations (i) through (vi) set forth in subparagraph
(4)(A) of Paragraph IV, other available items which will not be subject to
delays in delivery. If Tenant fails to timely make such designations, Landlord
will have no obligation to supply or install the items set forth in such
Landlord's notice or, at Landlord's election, Landlord shall have the right to
perform the work relating to such items and for the purpose of determining
whether or not Landlord's Substitute Space Work shall have been substantially
completed and for the purpose of fixing the Substitute Space Commencement Date,
said items set forth in such notice and all other related work and installations
shall be deemed unfinished details of Landlord's Substitute Space Work which may
be performed by Landlord after the substantial completion of Landlord's
Substitute Space Work in accordance with the provisions of Paragraph III of this
Exhibit B and, accordingly, shall not affect the Substitute Space Commencement
Date.
(3) In the event substantial completion of Landlord's Substitute Space Work
shall be delayed solely by reason of Tenant's delays in submitting any plans or
specifications, or in supplying information, or in approving plans or
specifications or estimates, or in giving authorizations or by reason of any
Change Work (as hereinafter defined) or by reason of any other similar acts or
omissions of Tenant, then, in such event, Tenant agrees to pay to Landlord, as
agreed liquidated damages for such delays occasioned by Tenant's acts or
omissions, as the case may be, sums equal to one (1) day's Fixed Rent
attributable to the Substitute Space for each day that such failure or delay
shall continue. Tenant shall also pay to Landlord a sum equal to any reasonable,
actual, out-of-pocket additional cost to Landlord in completing Landlord's
Substitute Space Work resulting from any of the foregoing failures, acts or
omissions of Tenant. Any such sums may be collected by Landlord, from time to
time, upon demand, whether or not the term with respect to Tenant's leasing of
the Substitute Space shall have commenced.
(4) A. Tenant, after the submission of Landlord's Substitute Space Work
Plans, may designate, subject to Landlord's approval, substitute or additional
work, materials or installations (referred to collectively as "Change Work") to
be supplied and installed by Landlord in replacement of, or in addition to, the
work, materials and installations set forth on Landlord's Substitute Space Work
Plans, provided that such Change Work: (i) is in compliance with the provisions
of this Lease, including without limitation Articles 3 and 6 hereof; (ii) is
practical and consistent with the physical conditions in the Building and with
the plans for the Building filed with the appropriate governmental authorities
and agencies; (iii) will not impair Landlord's ability to perform any of
Landlord's obligations under the provisions of this Lease; (iv) will not affect
any portions of the Building other than the Demised Premises; (v) shall (a) be
in Auto-CAD format and be signed, sealed and certified by a registered architect
and, if applicable, engineer duly licensed in the State of New York and (b)
comply with all applicable Legal Requirements so that Landlord's Substitute
Space Work Plans may, without further amendment or change, be used for
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engineering drawings and specifications and filed with and approved by the
appropriate governmental authorities and agencies; and (vi) will not tend to
delay completion of Landlord's Substitute Space Work. If, at or about the time
of the submission by Tenant to Landlord of any Change Work, it appears to
Landlord that any item of Change Work designated by Tenant will tend to delay
completion of Landlord's Substitute Space Work, or, notwithstanding Landlord's
approval of any Change Work, if it subsequently appears to Landlord that any
item of Change Work designated by Tenant will tend to delay completion of
Landlord's Substitute Space Work, Landlord in each case shall notify Tenant in
writing to that effect and Tenant, within five (5) days after the giving of such
notice (as determined in accordance with Article 27 of this Lease), may
designate, subject to the foregoing limitations (i) through (vi), other
available items which will not so tend to delay completion of Landlord's
Substitute Space Work in lieu of the item(s) of Change Work tending to cause a
delay. If Tenant fails to make such designations within five (5) days after the
giving of said notice, Landlord will have no obligation to supply or install the
items set forth in such Landlord's notice or, at Landlord's election, Landlord
shall have the right to perform such items of Change Work in accordance with the
provisions of this Exhibit B, except that, solely for the purpose of determining
whether or not Landlord's Substitute Space Work has been substantially completed
and for the purpose of fixing the Substitute Space Commencement Date, such items
of Change Work and all other related work and installations shall be deemed
unfinished details of Landlord's Substitute Space Work which may be performed
after the Substitute Space Commencement Date in accordance with the provisions
of Paragraph III of this Exhibit B and, accordingly, shall not affect the
Substitute Space Commencement Date.
B. Tenant shall pay to Landlord a sum equal to the amount by which the
aggregate of (a) the reasonable, actual, out of pocket cost and expense to
Landlord of supplying and installing all Change Work designated by Tenant
(including, but not limited to, the cost to Landlord of any necessary field
superintendent, operating engineer, laborers, freight elevator costs, rubbish
removal, temporary sprinkler and lighting, electric and heat, protection,
insurance, filing and expediting building permits and other governmental
approvals, blueprint costs and every other item which customarily would be
considered a general condition and, if applicable, any construction management
or other fees paid to the general contractor or construction manager who is
performing Landlord's Substitute Space Work [such aggregate actual cost and
expense is referred to as "Landlord's Additional Substitute Space Construction
Cost"] plus (b) if there is no general contractor or construction manager who is
performing Landlord's Substitute Space Work, ten (10%) percent of Landlord's
Additional Substitute Space Construction Cost for office overhead and as a
construction management fee, shall exceed (c) the following credits: a sum equal
to the reasonable, actual, out of pocket cost and expense to Landlord
(including, but not limited to, the cost to Landlord of any necessary field
superintendent, operating engineer, laborers, freight elevator costs, rubbish
removal, temporary sprinkler and lighting, electric and heat, protection,
insurance, Building Department, filing and expediting building permits and other
governmental approvals, blueprint costs and every other item which customarily
would be considered a general condition) of all items required to be supplied
and installed by Landlord pursuant to paragraph I of this Exhibit B for which
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Change Work is substituted by Tenant (however, if the reasonable, actual, out of
pocket cost and expense to Landlord of any item of Change Work designated by
Tenant as a substitution shall be less than the reasonable, actual, out of
pocket cost and expense to Landlord of the item set forth in paragraph I of this
Exhibit B for which such substitution is made, the credit to which Tenant shall
be entitled for such substitution shall be limited to the reasonable, actual,
out of pocket cost and expense to Landlord of the item of Change Work so
designated by Tenant; nor shall Tenant be entitled to any credit for the
substitution of any partitioning of less than floor-to-ceiling height). Any such
excess shall be payable by Tenant to Landlord, whether or not the Demised Term
shall have commenced, within five (5) days next following the rendition of a
written statement by Landlord to Tenant.
C. The term "substitute" or "substitution" as used in paragraph (IV)(4)(B)
above shall be expressly limited to an item of Change Work designated by Tenant
in replacement of an item required to be supplied or installed by Landlord
pursuant to paragraph I of this Exhibit B which item of Change Work so
designated by Tenant serves the same function as the item so replaced, e.g., a
lighting fixture in replacement of a lighting fixture designated on Landlord's
Substitute Space Work Plans. Any Change Work for which Tenant shall have
received any credit or other allowance shall not be deemed Tenant's personal
property but shall be and remain Landlord's property.
V. During the performance of Landlord's Substitute Space Work, Tenant shall not
be permitted to perform any Alterations in the Demised Premises prior to the
Substitute Space Commencement Date, except to the extent such Alterations and
the performance thereof during Landlord's Substitute Space Work are expressly
approved by Landlord. In the event Tenant is so permitted to perform Alterations
while Landlord is performing Landlord's Substitute Space Work, then each of the
parties shall cause its contractors to cooperate with the other and the other's
contractors so that Landlord's Substitute Space Work and Tenant's Alterations
may be completed efficiently and economically, such cooperation to relate to
including, without limitation, the storage of tools and materials.
VI. Any dispute between the parties as to whether or not Landlord's Substitute
Space Work is "substantially complete" shall be submitted to arbitration in
accordance with the provisions of Article 36 of the Lease.
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