Form: 10-K

Annual report pursuant to Section 13 and 15(d)

February 21, 2024

Documents

 

 

Exhibit 10.9

SECOND AMENDMENT TO LEASE AGREEMENT

This second amendment to lease agreement (this “Second Amendment”) by and between 640 Ellicott Street, LLC, a New York limited liability company having an address at 640 Ellicott Street, Suite 401, Buffalo New York 14203 (the “Landlord”) and ACV Auctions Inc., a Delaware corporation with offices at 640 Ellicott Street, Buffalo, New York 14203 (the “Tenant”) is effective the 1st day of May, 2023 (the “Effective Date”).

 

WHEREAS, Landlord and Tenant are parties to a certain lease agreement dated as of November 30, 2017 (the “Lease”); and

WHEREAS, pursuant to the terms of the Lease and First Amendment to Lease Agreement

, Tenant currently leases thirty thousand nine hundred and eight (30,908) rentable square feet (the “Premises”) of the building located at 640 Ellicott Street, Buffalo, New York (the “Building”); and

WHEREAS, Tenant desires to lease from Landlord and Landlord desires to lease to Tenant an additional six thousand five hundred (6,500) rentable square feet (the “Second Expansion Space”) of office space located on the fourth floor of the Building as shown in Exhibit A(2); and

 

WHEREAS, Landlord and Tenant desire to modify the terms of the Lease to reflect the foregoing.

 

NOW, THEREFORE, in consideration of mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, and intending to be bound hereby, the parties hereto agree as follows:

 

1.
All capitalized terms not defined herein shall have the meaning set forth in the Lease. For purposes of the Lease and except for the specific terms herein applicable solely to the Second Expansion Space, and the term “Premises” shall include the Second Expansion Space.
2.
Exhibit A(2) is hereby added to the Lease in the same form as Exhibit A(2) attached

hereto.

3.
Tenant shall be granted access to the Second Expansion Space on April 10, 2023 to

begin leasehold improvements.

4.
Base Rent per rentable square foot for the Second Expansion Space shall be the same rate per rentable square foot charged for the Premises. The payment of Base Rent for the Second Expansion Space shall be due and payable beginning on August 1, 2023, with successive installments to be paid on or before the first day of each month thereafter in accordance with the terms of Section 3.1 of the Lease.

 

5.
The second sentence of Section 2.1, Grant of Lease, is hereby deleted in its entirety and replaced with the following:

 

 

“A copy of the Building’s floor plan is attached hereto as Exhibits A, A(1), and

A(2).”

6.
The second sentence of Section 3.2, Payment of Operating Expenses, is hereby deleted in its entirety and replaced with the following:

“Tenant’s pro rata share shall be calculated as the percentage of the Building’s RSF occupied by Tenant pursuant to this Lease, which equates to thirty seven thousand four hundred and eight (37,408) RSF out of the total 110,590 RSF in the Building, or approximately 33.83%.”

7.
In the event of a conflict between any provisions of this Second Amendment and the Lease, the terms and conditions of this Second Amendment shall govern and control.

 

10. This Second Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original.

 

 

[Signature Page Follows]

 

 

 

IN WITNESS WHEREOF, Landlord and Tenant have executed this Second Amendment as of the day and year first above written.

 

 

LANDLORD: 640 ELLICOTT STREET, LLC

 

By: Buffalo Niagara Medical Campus, Inc., Member, by

Matthew K. Enstice, Executive Director

 

 

 

TENANT: ACV AUCTIONS INC.