SEVENTH LEASE MODIFICATION AGREEMENT
SEVENTH LEASE MODIFICATION AGREEMENT
AGREEMENT made as of December 28, 2004, by and between 000 XXXX 00XX XX. ASSOCIATES L.L.C., a limited liability company having its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter called "Landlord"); and XXXX BUILDING ASSOCIATES L.L.C., a limited liability company having its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (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's predecessor , partnership known as 000 Xxxx 00xx Xx. Associates and Tenant's predecessor, a partnership known as Xxxx Building Associates, which lease was assigned on May 1, 1954 by said predecessor to Tenant (also formerly known as Xxxx Building Associates); 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, by Fifth Lease Modification Agreement dated as of September 1, 1999 and by Sixth Lease Modification Agreement dated as of November 17, 2000 (which lease, as so modified, is hereinafter called the "Lease"); and
WHEREAS, a modernization program had been undertaken to maintain the competitive position of the Building for which funds were borrowed by Landlord and made available to Tenant; and
WHEREAS, additional enhancements to the Building are deemed necessary to maintain such competitive position; and
WHEREAS, Landlord is willing to make funds available for such enhanced program, provided that Basic Rent (as hereinafter defined) is increased as hereinafter provided, and Tenant is willing to apply the funds as agent for Landlord toward the cost of such program.
NOW, THEREFORE, in consideration of the sum of Ten ($10.00) Dollars, the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be bound, hereby agree as follows:
- Landlord and Tenant agree that improvements substantially as shown on Exhibit A to the Sixth Lease Modification Agreement have been undertaken, The additional enhancements referred to in the recital above, as shown on Exhibit A attached hereto and made a part hereof, constitute the enhanced modernization program referred to herein and shall be substantially made to the demised premises. All work performed by Tenant in furtherance of such modernization program shall be done as agent for Landlord and for the account of Landlord, and when completed, shall become the property of Landlord. All net proceeds of any loan(s) obtained in connection with such modernization program shall be turned over by Landlord to Tenant and applied to pay the costs of such program.
- A. There is hereby added to fixed payments of Basic Rent payable under Paragraph 2(A) the amount of the installments of debt service (except any balloon payment at maturity) payable under any Permitted Mortgage.
- Paragraph 29 of the Lease shall be deleted and restated in its entirety as follows:
- Landlord and Tenant agree to negotiate the terms of additional options to permit Tenant to extend the term of the Lease beyond its current expiration date and any renewal or extension term pursuant to an existing renewal option, on the condition that such extension rights shall be in proportion to the net present benefit to Landlord of the related increase in Basic Rent and the value of the enhancements after completion.
- Except as herein modified, 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.
- This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
B. Paragraph 13 of the Lease shall be deleted and restated in its entirety as follows:
"13. Tenant agrees that its rights hereunder are subordinate to (i) the mortgage presently encumbering the demised premises and (ii) any future mortgages placed on the demised premises by Landlord having an aggregate principal balance of up to $30,500,000 plus refinancing costs in connection therewith, provided that (a) such new mortgages are made by an institutional lender on a non-recourse basis and (b) the proceeds of any increase in the principal amount 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) any fee mortgage encumbering the demised premises on the date hereof 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. 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/or amortization (not including any balloon principal payment due at maturity) required annually under any such Mortgage immediately subsequent to refinancing."
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 L.L.C.
By : /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Member
By : /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Member
Tenant:
XXXX BUILDING ASSOCIATES L.L.C.
By : /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Member
Exhibit A
Xxxx Xxxxxxxx-000 Xxxx 00xx Xxxxxx
Property Improvement Schedule
Project/Item
Elevator equipment and system upgrade & replacement
Public corridor and elevator lobby improvements
Bathroom upgrades
Main lobby and entrance improvements
Windows replacement program
Façade, courtyard and setbacks renovation
New energy efficient chiller plant
House tanks replacement & capacity upgrade
DC electric conversion
New energy efficient heating plant
Security & communication system improvements
Misc. mechanical upgrades & new backflow system
Consultant fees
Contingency
*
