MODIFICATION AND EXTENSION AGREEMENT
1. IT IS MUTUALLY AGREED, as of this 22nd day of July, 1996,
by and between SHERWOOD 1600 ASSOCIATES, having an office at 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Landlord"), and FAST FOOD OPERATORS, INC., a
corporation duly organized and existing under the laws of the State
of New York, having an office at 00-00 Xxxx Xxxxxxxxx, Xxxxxxx, Xxx
Xxxx 00000 (hereinafter referred to as "Tenant"), that the lease
dated as of July 25, 1979, which lease was amended by Modification,
Extension and Amendment of Lease dated as of May 28, 1993, (which
lease, as so amended, and as the same may have been otherwise
heretofore modified and/or amended, is hereinafter collectively
referred to as the "Lease"), covering premises located on a portion
of the ground floor, outlined in red on the demising wall plan
attached thereto and made a part thereof as Exhibit "A", in the
building known as No. 0000 Xxxxxxxx, xx xxx Xxxxxxx xx Xxxxxxxxx,
Xxxx, Xxxxxx and State of New York, for a term which was scheduled
to expire on December 31, 1996, and under which Tenant is now in
possession, is hereby extended for a further term of six (6) years,
commencing January 1, 1997, to and including December 31, 2002,
inclusive (hereinafter referred to as the "Extended Term"), upon
all of the same terms, covenants, conditions, provisions and
agreements contained in the Lease, except that the annual rental
rate reserved and covenanted to be paid by Tenant to Landlord under
the Lease shall be:
A. for the period commencing January 1, 1997, to
and including July 31, 1999, inclusive, the sum of TWO HUNDRED
SIXTY-FIVE THOUSAND AND NO/100 ($265,000.00) DOLLARS per annum,
payable in equal monthly installments of TWENTY TWO THOUSAND
EIGHTY-THREE 33/100 ($22,083.33) DOLLARS each; plus
B. for the period commencing August 1, 1999, to
and including December 31, 2002, inclusive, the annualized sum of
TWO HUNDRED SEVENTY THOUSAND AND NO/100 ($270,000.00) DOLLARS per
annum, payable in equal monthly installments of TWENTY-TWO THOUSAND
FIVE HUNDRED AND NO/100 ($22,500.00) DOLLARS each.
2. A. Tenant shall make no alterations or additions to the
electric equipment or appliances, without first obtaining the prior
written consent from Landlord in each instance.
B. Landlord shall not in any way be liable or
responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur by reason of any change, failure or
defect in the supply or character of the electric current furnished
to the demised premises or if the quantity or character of the
electrical current supplied by the public utility corporation is no
longer available or suitable for Tenant's requirements, and no such
change failure, defect, unavailability or unsuitability shall
constitute an actual or constructive eviction, in whole or part,
nor shall same entitle Tenant to any abatement or diminution of
rent or additional rent under the Lease nor shall the Lease or any
of Tenant's obligations therefor be affected or reduced by reason
of any of the foregoing. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity
or existing feeders to the Building or the risers or wiring
installations.
3. Tenant hereby covenants and agrees at all times
hereinafter faithfully to abide by, carry out and fully perform all
the terms, covenants, conditions, provisions and agreements
contained in the Lease as hereby extended, and agrees not to cause,
allow or suffer any breach or default thereof to occur. Tenant
hereby affirms that on the date hereof, no breach or default has
occurred and that the Lease, and all of its terms, covenants,
conditions, provisions and agreements are in full force and effect
and that there are no defenses or offsets thereto. Tenant hereby
releases Landlord and Landlord's managing agent of and from any and
all liabilities, claims, controversies and other matters and things
of every nature which, from the date of the Lease through the date
hereof, have or might have arisen out of or in any way connected
with the Lease and/or the premises demised thereunder.
4. If on the commencement date of the Extended Term, Tenant
shall be in default of or delinquent in any way of its obligations
under the Lease, then Landlord, at its option, may, at any time
thereafter, cancel this Agreement upon written notice to Tenant,
whereupon this Agreement shall be null and void and of no further
force nor effect, effective as of the date that Landlord shall give
Tenant such notice, but all sums, whether for rent, additional rent
or other sums or charges under the Lease, as modified hereby, shall
be deemed to be additional rent under the Lease and this Agreement
for the month in which payment is demanded by Landlord or
Landlord's managing agent. Landlord may, and is hereby authorized
to, apply any payment made from time to time by or for the account
of Tenant, regardless of how the same may be allocated or earmarked
by or for the account of Tenant, to the payment of such past due
indebtedness.
5. 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 or Landlord's managing
agent shall execute a copy of this Agreement and unconditionally
deliver the same to Tenant.
6. The parties acknowledge that Landlord is presently
holding security in the amount of $5,000.00.
7. The parties agree that, except as herein expressly
provided, this Agreement and the Lease constitute the entire
understanding between the parties with regard to the premises
demised thereunder. 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. This Agreement shall not be assignable by Tenant.
8. Inasmuch as Tenant currently occupies the premises
demised by the Lease and is fully aware of the condition thereof,
Tenant agrees to accept said premises in the condition in which it
exists on the commencement date of the Extended Term. Tenant
understands and agrees that no materials whatsoever are to be
furnished by Landlord in connection with the premises or any part
thereof.
9. Tenant warrants and represents to Landlord that Tenant
has not dealt with any broker in connection with this Agreement,
and Tenant covenants and agrees to indemnify and hold Landlord and
Landlord's managing agent harmless from and against any and all
liabilities, costs and expenses (including, without limitation,
attorneys' fees) arising from the claims of any broker regarding
this Agreement and/or the Extended Term hereby granted.
10. The terms, covenants, conditions, provisions and
agreements contained in this Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and,
except as otherwise provided in the Lease, their respective
assigns.
11. Tenant covenants and agrees to furnish Landlord with the
appropriate certificate of insurance as required by the terms of
the Lease not less than thirty (30) days prior to the date that the
current certificate of insurance expires.
12. Tenant acknowledges that Landlord has recently erected
a billboard sign on the exterior of the building near the windows
of the demised premises. No diminution or abatement of rent or
additional rent or other compensation or claim of constructive
eviction shall or will be claimed by Tenant as a result of the
installation of the billboard, nor shall the Lease or any of
Tenant's obligations thereunder be affected or reduced by reason
of the foregoing.
13. Tenant shall within sixty (60) days from the date of this
Agreement, at Tenant's sole cost and expense, cause the awning
attached to the exterior of the demised premises to be removed and
to install a new awning. Tenant must obtain Landlord's prior
written approval with respect to such new awning. The awning, when
and if approved by Landlord, shall be installed and maintained by
Tenant, at Tenant's sole cost and expense, in a first-class manner
and in compliance with all applicable codes, statutes, ordinances,
regulations and other laws with all necessary licenses and permits
first obtained and thereafter maintained.
14. Effective as of the date hereof the following paragraphs
shall be deemed to be added to the Lease as Articles 63 through 66
thereof:
"Services.
Landlord reserves the right to interrupt, curtail or
suspend any of the services which may be furnished by Landlord to
Tenant pursuant to the provisions of this lease, when the necessity
therefor arises by reason of accident, emergency, mechanical
breakdown, or when required by any law, order or regulation of any
federal, state, county or municipal agency or authority, or for any
other cause beyond the reasonable control of Landlord. No
diminution or abatement of rent or additional rent or other
compensation or claim of constructive eviction shall or will be
claimed by Tenant as a result therefrom, nor shall this lease or
any of the obligations of Tenant be affected or reduced by reason
of such interruption, curtailment or suspension."
"Drain, Vent and Waste Lines; Soil Lines and Grease Traps.
As a material inducement to Landlord to enter into this lease:
A. Tenant, at its sole cost and expense, shall keep all
plumbing and all drain, vent and waste lines and sewer connections
serving the demised premises in good repair and free from
obstruction to the satisfaction of Landlord and in accordance with
all governmental and quasi-governmental agencies, authorities,
boards, bodies, bureaus, departments or officials having
jurisdiction thereof.
B. Tenant, at Tenant's sole cost and expense, will
install, operate and maintain all necessary and proper soil lines,
grease traps or other apparatus in compliance with all laws, codes,
resolutions, rules, regulations, requirements and recommendations
of any governmental and quasi-governmental agencies, authorities,
boards, bodies, bureaus, departments or officials and private
insurance company requirements, and such other requirements which
may be deemed necessary or desirable in Landlord's judgment and
will keep the same maintained in good order and repair (including
replacements thereto) for the purpose of preventing any stoppage or
interference with the general plumbing or sewerage system of the
building and for the proper collection and disposal of grease and
fats. Any lines, traps or other apparatus installed by Tenant
shall become the property of Landlord. Tenant shall promptly
remove and repair any stoppage or interference with the general
plumbing and sewerage system of the building."
"Limitation of Landlord's Liability.
Tenant agrees that, notwithstanding any contrary
provision of this lease, Tenant will look solely to the interest
of Landlord or its successor in the land and the building for the
satisfaction of any judgment or other judicial process requiring
the payment of money as a result of any negligence or breach of
this lease by Landlord or such successor, and no other property or
other assets of Landlord or any partner, member, officer or
director thereof, disclosed or undisclosed, or such successor, will
be subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this
lease, the relationship of Landlord and Tenant hereunder, or
Tenant's use and occupancy of the demised premises."
"Licenses and Permits.
Tenant covenants and agrees that Tenant will not use or
suffer or permit any person to use the demised premises for any
unlawful purpose and to obtain and maintain, at Tenant's sole cost
and expense, all licenses and permits from any and all governmental
or quasi-governmental agencies, authorities, departments, bureaus,
bodies or official having jurisdiction of the demised premises
which may be necessary for the conduct of Tenant's business
therein. Tenant further covenants and agrees to comply with
applicable laws, resolutions, codes, requirements, decisions,
statutes, ordinances, rules and regulations of any governmental or
quasi-governmental agency, authority, department, bureau, body or
official having jurisdiction over the operation, occupancy,
maintenance and use of the demised premises for the purposes set
forth herein. Tenant will indemnify and hold Landlord and
Landlord's managing agent harmless from and against any claims,
penalties, loss, damage or expense imposed by reason of a violation
of any of the foregoing."
15. Effective as of the Extended Term, Article 57 of the
Lease is hereby deleted in its entirety and the following
substituted in its place:
"Real Estate Taxes.
A. Commencing July 1, 1997, and every July 1st
thereafter during the term, Tenant covenants and agrees to pay to
Landlord, as additional rent, without set-off or deduction, four
(4.0%) percent (hereinafter referred to as "Tenant's Proportionate
Share") of any increase in any of the items included within "Real
Estate Taxes" (as hereinafter defined), over and above the amount
payable by Landlord for any of the same for the fiscal year
commencing July 1, 1996 and ending June 30, 1997 (hereinafter
referred to as "Base Tax Year"), for each and every such fiscal
year or portion thereof thereafter during the term of this lease.
"Real Estate Taxes" shall be defined as including the following
items: (i) real estate taxes; (ii) assessments, special or
otherwise (including, without limitation, any business improvement
district taxes, assessments or the like and assessments for public
improvements or benefits whether or not commenced or completed
during the Term); (iii) any tax assessment levied, assessed or
imposed against or upon such land and/or building or the rents or
profits therefrom which shall be in lieu of all or any portion of
any item hereinabove set forth. If Real Estate Taxes in the Base
Tax Year are affected by any application or proceeding brought by
or on behalf of Landlord for reduction in the amount of Real Estate
Taxes payable by Landlord, and if as a result of such application
or proceeding, Real Estate Taxes in the Base Tax Year shall be
decreased, Landlord may promptly xxxx Tenant for any additional
rent for any fiscal year reflecting such decrease in Real Estate
Taxes in the Base Tax Year. If by virtue of any application or
proceeding brought by or in behalf of Landlord, there shall be a
reduction of the assessed valuation of the land and/or the building
of which the demised premises are a part, for any fiscal year which
affects the Real Estate Taxes, or part thereof, for which
additional rent has been paid by Tenant pursuant to this Article,
such additional rent payment shall be recomputed on the basis of
any such reduction and Landlord will credit against the next
accruing installments of rent due under this lease after receipt by
Landlord of a tax refund any sums paid by Tenant in excess of the
recomputed amounts, less a sum equal to Tenant's Proportionate
Share of all costs, expenses and fees, including, but not limited
to, appraisers', consultants' and attorneys' fees, incurred by
Landlord in connection with such application or proceeding. If
there shall be a reduction of the assessed valuation of the land
and/or the building of which the demised premises are a part, for
any fiscal year after the Base Tax Year before additional rent has
been paid by Tenant pursuant to this Article, the amount of
Landlord's costs, expenses and fees, including, but not limited to,
appraisers', consultants' and attorneys' fees, incurred by Landlord
to obtain such reduction shall be added to and be deemed part of
the Real Estate Taxes for such fiscal year.
B. Amounts payable under this Article shall be
additional rent and shall be due and payable to Landlord, without
set-off or deduction, within ten (10) days after Landlord renders
a xxxx therefor to Tenant. Copies of bills for any items included
in Real Estate Taxes shall be sufficient and conclusive evidence of
the amount of Real Estate Taxes and for the purposes of the
calculation of the amounts of additional rent to be paid by Tenant
pursuant to this Article. Any additional rent payable pursuant to
this Article for a partial fiscal year, at the commencement or at
the expiration of the term, shall be adjusted in proportion to the
number of days in such partial fiscal year during which this lease
is in effect. The obligation of Tenant with respect to any
additional rent pursuant to this Article applicable to the last
fiscal year and/or partial fiscal year of the term shall survive
the expiration of the term. Landlord's failure to render bills for
Real Estate Taxes under the provisions of this Article shall not
prejudice its right to thereafter render said xxxx or bills for
such fiscal year or any subsequent fiscal years. The annual rental
rate reserved and covenanted to be paid herein by Tenant to
Landlord shall in no way be increased or decreased or otherwise
affected or impaired by reason of this Article."
16. Notwithstanding anything to the contrary contained in
Article 1 of this modification and extension agreement, the annual
rental rate reserved and covenanted to be paid by Tenant to
Landlord under the Lease, for the period commencing August 1, 1996
to and including December 31, 1996, inclusive, shall be the sum of
TWO HUNDRED SIXTY-FIVE THOUSAND AND NO/100 ($265,000.00) DOLLARS
per annum, payable in equal monthly installments of TWENTY-TWO
THOUSAND EIGHTY THREE 33/100 ($22,083.33) DOLLARS each.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Extension Agreement, as of the day and year first above written.
SHERWOOD 1600 ASSOCIATES
BY: SHERWOOD 1600 OPERATING COMPANY, its General Partner
By: __________________________
Xxxx Xxxxxxxxx, As Agent
Witness for Landlord:
___________________
FAST FOOD OPERATORS, INC.
By:___________________________
Xxxxx Xxxxxx, President
Attest for Tenant:
By: _________________________
Secretary
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this ____ day of __________________, 1996, before me
personally came _____________________, to me known, who, being by
me duly sworn, did depose and say that he resides at ____________
________________________________________________; that he is the
_________ President of __________________________________, the
corporation described in and which executed the foregoing
instrument, as Tenant; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
______________________________
Notary Public
