SIXTH LEASE MODIFICATION AGREEMENT
SIXTH LEASE MODIFICATION AGREEMENT
AGREEMENT made this 17th day of November 2000, by and between 000 XXXX 00XX XX. ASSOCIATES, a joint venture having its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Landlord") and XXXX BUILDING ASSOCIATES, a partnership having its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, on September 30, 1953 a net lease covering the entire premises known as the Xxxx Building, located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building"), was made between Landlord and Tenant's predecessor, a partnership also known as Xxxx Building Associates, which lease was assigned on May 1, 1954 by said predecessor to Tenant; and
WHEREAS, said lease was modified by Modification Agreement dated June 12, 1961, by Second Modification Agreement dated June 10, 1965, by Third Lease Modification Agreement dated as of May 1, 1975, by Fourth Lease Modification Agreement dated November 12, 1985 and by Fifth Lease Modification Agreement dated as of September 1, 1999 (which lease, as so modified, is hereinafter called the "Lease"); and
WHEREAS, a modernization program is necessary in order to maintain the competitive position of the Building; and
WHEREAS, Landlord is willing to make funds available for improvements required by such program, and Tenant is willing to apply such funds, as agent for Landlord, to the making of such improvements; and
WHEREAS, Landlord and Tenant desire to modify the Lease as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto hereby agree as follows:
- Landlord and Tenant agree that improvements substantially as shown on Exhibit A attached hereto and made a part hereof constitute the modernization program (the "Improvement Program") referred to herein and shall be substantially made to the demised premises. All work performed by Tenant in furtherance of the Improvement Program shall be done as agent for Landlord and for the account of Landlord, and when completed, shall become the property of Landlord.
- Landlord agrees to obtain a loan in the amount of $15,500,000 from Emigrant Savings Bank secured by a mortgage (the "New Fee Mortgage") on the demised premises. The net proceeds of the New Fee Mortgage shall be used to refinance the existing fee mortgages on the demised premises and pay for costs of the Improvement Program. Pursuant to the terms of the New Fee Mortgage, loan proceeds used to pay for costs of the Improvement Program shall be advanced in stages. Such loan proceeds shall be deposited by Landlord in an interest-bearing money market or similar account and disbursed to Tenant upon submission of documents reasonably required by Landlord. All interest earned by Landlord on amounts so held by it shall belong to and be retained by Landlord, and Tenant's Basic Rent (as defined below in Section 2(A) of the Lease) shall be deemed reduced monthly by the amount of such earned interest.
- Paragraph 2(A) of the Lease shall be deleted and restated in its entirety as follows:
- Paragraph 13 of the Lease shall be deleted and restated in its entirety as follows:
- Paragraph 29 of the Lease shall be deleted and restated in its entirety as follows:
"2.(A) Commencing on November 17, 2000, Tenant covenants to pay during the term of this Lease and any renewal term of this Lease, a basic rent (hereinafter called "Basic Rent") at an annual rate equal to (i) $28,000 plus (ii) the installment payments of interest and amortization (excluding any balloon principal payment due at maturity) payable during such year under the New Fee Mortgage. Basic Rent shall be payable in monthly installments on the first day of each calendar month in an amount equal to $2,333.33 plus the projected debt service due on the New Fee Mortgage on the first day of the ensuing calendar month (with a reconciliation to be made as soon as practicable thereafter); provided, however, that Basic Rent due on December 1, 2000 shall include interest prepaid at the closing of the New Fee Mortgage or accrued thereafter. Basic Rent shall be adjusted on a dollar-for-dollar basis by changes in the annual debt service on the New Fee Mortgage. It is further understood and agreed that the amount of Basic Rent shall be adjusted upon a refinancing of any Mortgage (as defined in Paragraph 29), subject to and in accordance with the provisions of Paragraph 29."
"13. Tenant agrees that its rights hereunder are subordinate to (i) the New Fee Mortgage and (ii) any future mortgages placed on the demised premises by Landlord having an aggregate principal balance of up to $15,500,000 plus refinancing costs in connection therewith, provided that such new mortgage(s) are made by an institutional lender on a non-recourse basis and (b) the net proceeds of the loan(s) secured by such new mortgage(s) are used to refinance the then existing mortgage(s) on the demised premises and/or in connection with the demised premises (each mortgage to which Tenant's rights hereunder are subordinate is hereinafter a "Permitted Mortgage"). Tenant agrees to execute, upon demand, any documents required to evidence such subordination. Tenant further agrees that it will not do or suffer to be done any act upon the demised premises which will violate any of the terms of any Permitted Mortgage or the obligations secured thereby."
"29. For the purpose of this Paragraph 29, the term "Mortgage" shall mean (i) the New Fee Mortgage and (ii) any fee mortgage to which the Lease is subordinate under the provisions of Paragraph 13 of this Lease, and the term 'refinancing' shall include any consolidation, modification, renewal, extension or replacement of any Mortgage made subsequent to the date hereof. In the event that there shall be one or more refinancings of any Mortgage, the annual Basic Rent will be in an amount equal to the sum of Twenty-Eight Thousand Dollars ($28,000.00) plus an amount equal to the installment payments for interest and amortization (not including any balloon principal payment due at maturity) required annually under any such Mortgage immediately subsequent to refinancing."
6. Any costs, fees and expenses incurred in connection with the execution of this Agreement or the completion of the transactions contemplated herein, shall be paid from proceeds advanced under the Emigrant Mortgage. Any such costs, fees, and expenses paid by Tenant from sources other than the loan secured by the Emigrant Mortgage may be deducted in the year expended in calculating Tenant's net income for purposes of determining Overage Rent and Secondary Overage Rent under the Lease.
7. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed thereto in the Lease.
8. Except as herein modified and as otherwise agreed between Landlord and Tenant, the Lease shall remain in full force and effect, and the parties hereby ratify and confirm all of the other terms, covenants and conditions thereof.
9. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the day and year first above written.
Landlord:
000 XXXX 00XX XX. ASSOCIATES
By : /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Joint Venturer
Tenant:
XXXX BUILDING ASSOCIATES
By : /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Partner
Exhibit A
Xxxx Xxxxxxxx-000 Xxxx 00xx Xxxxxx
Property Improvement Schedule
|
Project/Item |
Budget |
|
Public corridors and elevator lobby improvements |
$1,068,000 |
|
Air conditioning for public corridors |
500,000 |
|
Elevator cab replacement |
360,000 |
|
Elevator equipment and system upgrade & replacement |
320,000 |
|
Tenant door replacements |
316,250 |
|
Building standard signage in corridors |
30,000 |
|
Class "E" upgrade |
37,500 |
|
Main lobby improvements |
2,000,000 |
|
Marketing office upgrade |
31,500 |
|
Window replacement |
1,800,000 |
|
Façade renovation |
1,524,228 |
|
New energy efficient chiller plant |
982,000 |
|
House tanks replacement & capacity upgrade |
190,000 |
|
Sidewalk elevator replacement |
120,000 |
|
CCTV installation @ elevator cabs |
20,000 |
|
Roof replacement |
500,000 |
|
Fire escape repair & painting |
200,000 |
|
Backflow preventers |
90,000 |
|
Toilet exhaust riser |
275,000 |
|
DC electric conversion |
300,000 |
|
New energy efficient burner |
75,000 |
|
Security & communication system improvements |
105,000 |
|
Other building improvement costs |
575,000 |
|
Contingency |
780,522 |
|
Total |
$12,200,000 |
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On the 17 day of November in the year 2000 before me, the undersigned, a Notary Public in and said State, personally appeared Xxxxx X. Xxxxxx, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxxx X. Xxxxxxxxx
Notary Public
[SEAL] Stuart Xxx Xxxxxxxxx
Notary Public, State of New York
No. 4744958
Qualified in New York County
Commission Expires February 28, 0000
XXXXX XX XXX XXXX )
) s.s.:
COUNTY OF NEW YORK )
On the 17 day of November in the year 2000 before me, the undersigned, a Notary Public in and said State, personally appeared Xxxxxxx X. Xxxxxx, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxxx X. Xxxxxxxxx
Notary Public
[SEAL] Stuart Xxx Xxxxxxxxx
Notary Public, State of New York
No. 4744958
Qualified in New York County
Commission Expires February 28, 2002
