EXHIBIT 10.42
SECOND AMENDMENT TO
CONTRACT OF SALE AND LEASE AGREEMENT
XXXXXXXXX SQUARE LLC
- SELLER -
OLP BROOKLYN PAVILION LLC
- PURCHASER -
XXXXXXXXX SQUARE CINEMA LLC
- TENANT -
AS OF APRIL 2, 2003
Pavilion Theatre
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx
SECOND AMENDMENT TO CONTRACT OF SALE AND TO LEASE AGREEMENT
This SECOND AMENDMENT TO CONTRACT OF SALE AND LEASE AGREEMENT (this
"Amendment") is made and entered into as of the 2nd day of April, 2003 by and
between Xxxxxxxxx Square LLC, a New York limited liability company having an
address at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Seller"), OLP
Brooklyn Pavilion LLC, a Delaware limited liability company having an office at
Xxxxx 000, 00 Xxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxx Xxxx 00000 ("Purchaser") and
Xxxxxxxxx Square Cinema LLC, a New York limited liability company having an
address at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated as of June ___, 2002 calling for the sale and purchase and leaseback by
Tenant of the Premises therein defined (the "Original Contract of Sale");
WHEREAS, Tenant and Purchaser entered into that certain Lease Agreement
dated August 9, 2002 (the "Original Lease");
WHEREAS, Seller, Tenant and Purchaser entered into that certain First
Amendment to Contract of Sale and Lease Agreement dated as of August 9, 2002
(the "First Amendment"; the Original Contract of Sale and the Original Lease as
amended by the First Amendment are hereafter respectively referred to as the
"Master Lease" and the "Contract of Sale);
WHEREAS, Seller, Tenant and Purchaser now wish to amend the First Amendment
as herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the sufficiency of which being hereby acknowledged, the parties hereto do hereby
agree as follows:
1. TCO, PERMITS AND FINAL COFO. A. Purchaser acknowledges that it has
received the TCO and Permits for the existing eight (8) theatres and on account
thereof has disbursed to Seller $250,000 of the Improvement Holdback referred to
in Paragraph 1A(i) of the First Amendment which Seller acknowledges receipt of.
B. Tenant shall be solely responsible, at its cost and expense, to
maintain the TCO in full force and effect and to extend same if necessary until
receipt of the final, permanent and unconditional certificate of occupancy for
the entire Premises including all eight (8) existing theatres and the Additional
Theatre (the "Final CofO").
2. DATES. A. The eighteen (18) month timeframe referenced in Paragraphs
1A(i) and (ii) of the First Amendment to obtain the Final CofO and for the
completion of the installation of the Elevator is hereby extended until June 9,
2004. The reference to May 31, 2007 in the last sentence of Paragraph 9.4(A) of
the Master Lease as previously shortened to November 9, 2003 pursuant to the
First Amendment is hereby changed to be June 9, 2004.
B. The six (6) month timeframe referenced in Paragraph 1A(ii) of the
First Amendment for the completion of the installation of the updated Fire
System and the Fire Doors is hereby extended until August 1, 2003.
3. THE WAIVER. Purchaser acknowledges receipt of a waiver of certain
provisions of Local Law 58 as issued by the Brooklyn Borough Commissioner. On
account thereof, Purchaser has simultaneously with the execution hereof
delivered to Seller $125,000 of the Improvement Holdback referred to in
paragraph 1A(iii) of the Lease Amendment, which sum Seller acknowledges receipt
of. If any further waivers or approvals are required and/or new regulations are
issued by applicable governmental agencies (including, without limitation, the
City of New York's Mayor's Office for People with Disabilities) which must be
complied with in respect of the Premises, then Tenant agrees at its sole cost to
obtain such additional waivers or approvals and/or comply with such new
requirements promptly and within the time frames so required by applicable law.
4. FURTHER DISBURSEMENTS. A. Paragraph 1A(ii) of the First Amendment is
hereby modified to provide that the remaining $125,000 of the Improvement
Holdback will be disbursed in two (2) separate payments instead of one (1) as
currently provided for, such that, upon satisfaction of all other requirements
of Paragraph 1A(ii) of the First Amendment and the Master Lease, (i) $50,000
will be disbursed upon timely completion of the Doorways and the Fire System and
(ii) $75,000 will be disbursed upon timely completion of the Elevator.
B. Paragraph 9.4 of the Master Lease is hereby amended to provide that
the Landlord Construction Allowance will be disbursed in multiple payments as
work progresses on the Additional Theatre as opposed to all at once upon its
completion. All other conditions of the Master Lease and First Amendment shall
remain in full force and effect including the Funding Conditions. As part of
Purchaser's approval of the plans, specifications and working drawings for the
Additional Theatre as referenced in Paragraph 9.4(B) of the Master Lease, Tenant
agrees to provide to Purchaser a budget for the proposed work along with a copy
of a third party contract(s) backing and confirming same. If the budgeted amount
is more than $500,000, Tenant shall fund such excess of its own funds prior to
any disbursements from the Landlord Construction Allowance. Disbursements from
the Landlord Construction Allowance shall be made in minimum increments of
$50,000 (upon satisfaction of the Funding Conditions and all of the other
conditions of the Master Lease, the First Amendment and this Amendment) upon
completion of budgeted work in said amount. Notwithstanding the foregoing,
$150,000 of the Landlord Construction Allowance shall be held back until such
time as (i) the Additional Theatre is fully completed and open for business,
(ii) the Elevator, the Doorways and the Fire System have been completed and
(iii) the Final CofO timely obtained. It is understood that the Funding
Condition referenced in Paragraph 9.4(C)(ii) relating to an architect's
certificate of completion shall henceforth mean and refer to a certificate from
a licensed architect that the subject work has been completed in accordance with
the approved plans and specifications and that the remaining portion of the
Landlord Construction Allowance is sufficient to cover all of the anticipated
costs of the Additional Theatre including a reasonable contingency factor as
determined by Purchaser.
3. MISCELLANEOUS. A. Except as modified hereby, the Contract of Sale and
the Master Lease, as amended by the First Amendment, remain in full force and
effect.
B. Capitalized and/or defined terms used but not defined herein shall
have the meanings ascribed to them in the Contract of Sale, the Master Lease or
the First Amendment as the case may be, unless the context shall otherwise
clearly require.
C. Tenant acknowledges and agrees that a default by either Seller or
Tenant of any of their obligations under this Amendment or the First Amendment
shall constitute an Event of Default under the Master Lease. Completion dates
herein provided are time of the essence as provided in the Master Lease and are
not subject to Force Majeure generally but may be extended solely due to a delay
that can be directly attributed to an act of war or terrorism in the New York
City metropolitan area following the date hereof. Tenant understands and agrees
that none of the circumstances herein set forth shall in any manner allow it to
xxxxx any portion of its rent under the Master Lease. Seller and Tenant
represent and warrant the recitals hereinabove are true to the best of their
knowledge.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Second Amendment as of the date first hereinabove written.
XXXXXXXXX SQUARE LLC, as Seller
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Member
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OLP BROOKLYN PAVILION LLC, as Purchaser
by: OLP-MTC Holdings, LLC, its sole member
by: OLP Movies LLC, is manager
by: One Liberty Properties, Inc, its sole member
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Vice President
XXXXXXXXX SQUARE CINEMA LLC, as Tenant
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Member
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/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, personally as guarantor to confirm
that his guaranty of the Master Lease includes
the guaranty of the covenants of Tenant herein provided
and to confirm his agreement to the foregoing
