EXHIBIT 10.36
FIRST AMENDMENT TO MASTER LEASE
THIS FIRST AMENDMENT TO MASTER LEASE (this "Amendment") is made as of
February 1, 2002, by and between DOUBLE 9 PROPERTY II LLC, a Delaware limited
liability company ("Lessor"), whose address is c/o U.S. Realty Advisors, LLC,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and DOE FAMILY II LLC, a
Massachusetts limited liability company ("Lessee"), whose address is 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
PRELIMINARY STATEMENTS
Lessor and Lessee entered into that certain Master Lease, dated as of
December 4, 2001 (the "Lease"). Unless otherwise expressly provided herein, all
defined terms used in this Amendment shall have the meanings ascribed to them in
the Lease.
Lessor and Lessee desire to amend the Lease to add the property located
at 00 Xx. Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx (FFC No. 8001-3356, Store No.
3027) (the "New Property").
AGREEMENT
In consideration of the mutual covenants and provisions of this
Amendment, the parties agree as follows:
1. AMENDMENT. A. Exhibit A of the Lease is hereby amended to
delete such Exhibit originally attached to the Lease and substitute in lieu
thereof the Exhibit A attached to this Amendment.
B. Exhibit A-1 of the Lease is hereby amended to add thereto the
legal description attached as Exhibit A-1 to this Amendment.
C. The definition of "Base Annual Rental" in Section 1 of the
Lease is hereby amended to read as follows from and after the date of this
Amendment:
"Base Annual Rental" means $1,257,618.00, subject to the increases
provided in Section 5.B.
D. Lessee acknowledges that the New Property is a condominium
unit. During the Lease Term, Lessee shall promptly pay, perform and comply with
all obligations imposed on the owner of the New Property by the applicable
condominium declaration, by-laws and related documents (collectively, the
"Condominium Documents") and shall provide Lessor with copies of any notices
received by Lessee from the condominium board, its managing agent or from the
owner of any other condominium unit, including, without limitation, notices
asserting or claiming a default or breach by Lessee under the Condominium
Documents, such copies to be provided to Lessor within five (5) days after
Lessee's receipt of the applicable notice. Lessee shall indemnify, protect,
defend and hold harmless each of the Indemnified Parties from and against any
and all Losses (excluding Losses suffered by an Indemnified Party arising out of
the gross negligence or willful misconduct of such Indemnified Party; provided,
however, that the
term "gross negligence" shall not include gross negligence imputed as a matter
of law to any of the Indemnified Parties solely by reason of the Lessor's
interest in any of the Properties or Lessor's failure to act in respect of
matters which are or were the obligation of Lessee under the Lease or this
Amendment) caused by, incurred or resulting from Lessee's failure to pay,
perform and comply with the terms and conditions of the Condominium Documents or
this Section. If Lessee fails to pay, perform or comply with any of its
obligations under the Condominium Documents or this Section, Lessor may pay or
perform such obligations; provided, however, in no event shall Lessor be
obligated to pay or perform such obligations, and in no event shall payment or
performance of such obligations by Lessor constitute a cure of any Event of
Default arising under the Lease as a result of Lessee's failure to pay, perform
or comply with such obligations. Any amounts disbursed by Lessor as a result of
Lessor's performance of such obligations shall bear interest at the Default Rate
from and including the date of such advance to and including the date such
advance is repaid.
2. REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Lessee in the Lease with respect to the properties covered by the
Lease (including, without limitation, those contained in Sections 7 and 16 of
the Lease) are hereby made by Lessee as of the date hereof with respect to the
New Property.
3. RATIFICATION. Except as otherwise expressly set forth in this
Amendment, the Lease is unmodified and in full force and effect.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original.
5. LIABILITY LIMITATION. The liabilities and obligations of
Lessor and Lessee under this Amendment are subject to the provisions of Section
36 of the Lease, the terms of which are incorporated herein by this reference.
2
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Amendment
as of the date first above written.
LESSOR:
DOUBLE 9 PROPERTY II LLC, a Delaware limited
liability company
By Double 9 Equity II LLC, a Delaware limited
liability company, its member manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Its Vice President, Assistant Secretary
and Assistant Treasurer
LESSEE:
DOE FAMILY II LLC, a Massachusetts limited
liability company
By: /s/ Xxxxxxx X. Xxx, Xx.
----------------------------------------
Xxxxxxx X. Xxx, Xx.
A Manager
CONSENTED TO:
GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Printed Name: Xxxx X. Xxxxxx
Its: Vice President
The undersigned are joining in the execution and delivery of this
Amendment to evidence their consent to the terms and conditions of this
Amendment and to confirm that this Amendment is included within the definition
of "Documents" set forth in that certain Unconditional Guaranty of Payment and
Performance dated as of December 4, 2001, executed by the undersigned for the
benefit of Lessor.
99 BOSTON, INC.,
a Massachusetts corporation
By: /s/ Xxxxxxx X. Xxx, Xx.
----------------------------------------
Xxxxxxx X. Xxx, Xx.
Its President
99 WEST, INC.,
a Massachusetts corporation
By: /s/ Xxxxxxx X. Xxx, Xx.
----------------------------------------
Xxxxxxx X. Xxx, Xx.
Its President
STATE OF NEW YORK ]
]SS.
COUNTY OF NEW YORK ]
The foregoing instrument was acknowledged before me on January 31st,
2002 by Xxxxxx X. Xxxxxx, Vice President, Assistant Secretary and Assistant
Treasurer of Double 9 Equity IV LLC, a Delaware limited liability company,
member manager of Double 9 Property IV LLC, a Delaware limited liability
company, on behalf of the limited liability company.
/s/ Xxxxxxx X. Xxxx
---------------------------------------
Notary Public
My Commission Expires:
_________________________________
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF MIDDLESEX ]
The foregoing instrument was acknowledged before me on January 31,
2002 by Xxxxxxx X. Xxx, Xx., a Manager of Doe Family II LLC, a Massachusetts
limited liability company, on behalf of the limited liability company.
/s/
---------------------------------------
Notary Public
My Commission Expires:
11/2/2002
-------------------
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on February 1, 2002
by Xxxx X. Xxxxxx, Vice President of GE Capital Franchise Finance Corporation, a
Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Notary Public
My Commission Expires:
________________________________
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF MIDDLESEX ]
The foregoing instrument was acknowledged before me on January 31, 2002
by Xxxxxxx X. Xxx, Xx., a Manager of Doe Family II LLC, a Massachusetts limited
liability company, on behalf of the limited liability company.
/s/
-----------------------------------------
Notary Public
My Commission Expires:
11/2/2002
-------------------
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF MIDDLESEX ]
The foregoing instrument was acknowledged before me on January 31, 2002
by Xxxxxxx X. Xxx, Xx., a Manager of Doe Family II LLC, a Massachusetts limited
liability company, on behalf of the limited liability company.
/s/
-----------------------------------------
Notary Public
My Commission Expires:
11/2/2002
-------------------
EXHIBIT A
PROPERTIES
Exhibit A
POOL 2
FFC # STORE # ADDRESS CITY STATE
----------------------------------------------------------------------------------------
8001-3357 3030 0000 Xxxxxxxx Xxxx (Xx 00) Xxxxxxxx XX
0000-0000 2037 000 Xxxxxxxxx Xxxx (Xx 0) Xxxxxxxx XX
0000-0000 3003 2 Accord Park (Rt 228) Xxxxxxxx XX
0000-0000 3004 000 Xxxxxxxxxx Xxxx (Xx 000) Xxxxx Xxxxxxx XX
0000-0000 3027 00 Xx. Xxxxxxx Xxxxxx Xxxxxx (XXXXX) XX
0000-0000 2012 000 Xxxxxxxx Xxxx Xxxxxx XX
0000-0000 3028 000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxxxx XX
EXHIBIT A-1
NEW PROPERTY
LEGAL DESCRIPTION
That certain Condominium Unit known as Unit No. 1 (the "Unit") located at K-W-D
Condominium, 00 Xx. Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx
(the "Condominium"), a condominium established pursuant to the provisions of New
Hampshire RSA 356-B by Declaration of Condominium dated December 16, 1986,
recorded with the Hillsborough County Registry of Deeds in Book 3841, Page 1,
together with an undivided thirty-three and one-third percent (33 l/3%) interest
in the common areas of the Condominium and together with all the rights and
easements appurtenant to said Unit as set forth in the Declaration of
Condominium, and the benefit of all applicable provisions of the Declaration of
Condominium, the By-Laws attached thereto as Exhibit B, and the provisions of
New Hampshire RSA 356-B as of the date hereof and as it may in the future be
amended. The Unit is shown on site and floor plans filed with said Registry as
Plan No. 20091.
FFC No. 0000-0000
Xxxxxx, XX
