Preview
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019
LEASE MODIFICATION AGREEMENT
LEASE MODIFICATION AGREEMENT (this "Agreement") dated __,
2016 by and between Sheepshead Restaurant Associates, Inc. ("Landlord ') and Lundy's
Management Corp.("Tenant");
WHEREAS, the Landlord and Tenant executed a Net Lease dated March 9, 1994 (the
"Net Lease") for the land and improvements located at 1901 Emmons Avenue, Brooklyn, New
York (the "Premises"); and
WHEREAS, the Landlord and Tenant executed a Lease Modification and Amendment on
July 21, 2010 (the "First Modification") modifying certain terms of the Net Lease; and
WHEREAS, the Landlord and Tenant executed an Amendment to Lease Modification
Agreement in November 2011 (the "Second ModiF_cation") modifying certain terms of the Net
Lease and the First Modification; and
WHEREAS, the Landlord and Tenant desire, by this Agreement, to resolve various
disputes and litigations between the Landlord and Tenant;
NOW, THEREFORE, in mutual consideration of the covenants contained herein, and
other good and valuable consideration, the Landlord and the Tenant agree as follows:
L Definitions.
a. As used in this Agreement, the Main Building shall be defined as that portion of
the Premises consisting of the two-story building, rooms, and land located at
1901-1929 Emmons Avenue, Brooklyn, New York 11235, and all ancillary
structures attached thereto.
b. As used in this Agreement, the Annex shall be defined as that portion of the
Premises consisting of the three-story building, rooms, and land located at 31-52
to 31-76 Ocean Avenue, Brooklyn, New York 11235, and allancillary structures
attached thereto.
c. As used in this Agreement, the Lease Dae==•ants shall be defined as the Net
Lease, the Pirst Modification, the Second Modification, this Agreement.
d. As used in this Agreement, the Non-Payment Proceeding shall be defined as the
commercial non-payment summary proceeding in Kings County Landlord/Tenant
Court entitled Sheepshead Restaurant Associates, Inc. v. Lundy's Management
Corp.. Commercial L/T Index #: 90922/2014, and the Non-Payment Warrant
shall be defined as the warrant of eviction issued to the Landlord against the
Tenant in the Non-Payment Proceeding;
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FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019
xxiv, Base Monthly Rent for the period from March 9, 2038 through March 8,
2039 in the amount of $69,273.25;
xxv. Base Monthly Rent for the period from March 9, 2039 through March 8,
2040 in the amount of $70,658.75;
xxvi, Base Monthly Rent for the period from March 9, 2040 through March 8,
2041 in the amount of $72,071.89;
xxvii. Base Monthly Rent for the period from March 9, 2041 through March 8,
2042 in the amount of $73,51333;
xxviii. Base Monthly Rent for the period from March 9, 2042 through March 8,
2043 in the amount of $74,983.60.
c. The term Base Monthly Rental, as used in this Agreement, and the term Minimum
Rental, as used in the Net Lease, shall be interchangeable.
d. on or about the firstof the month, the Landlord shall issue monthly invoices of
nonpermanent payments pursuant to this Lease Modification Agreement. Failure
of the Landlord to issue such invoices shall not affect the Tenant's obligation to
make such payments or be deemed a waiver of itsright to claim or collect such
sums.
4. The Annex.
a. In the event that a PCO for the entire Annex is not issued on or before May 1,
2016, then the Tenant shall pay a Non-Permanent Payment of $2,500.00 per
month beginning on May 10, 2016 and on the 10th day of each month thereafter
until such time as a PCO for the entire Annex is issued. Tenant agrees to notify
Landlord promptly upon Tenant's receipt of notice of the issuance of a TCO.
However, notwithstanding anything to the contrary herein, any Non-Permanent
Payment that ceases pursuant to this Agreement upon the issuance of a TCO or
PCO shall cease upon the issuance of such TCO or PCO regardless whether the
Tenant has notified the Landlord of such issuance.
b. If in effect, the Non-Permanent Payment set forth in paragraph 4(a) shall increase
by an additional $5,000.00 per month six months after May 1, 2016 on November
1, 2016, and shall increase by an additional $5,000,00 per month each and every
six (6) months thereafter until such time as a PCO for the entire Annex is issued.
5. The Main Building.
a. In the event that a TCO for the entire Main Building is not issued on or before
April 1, 2016, then the Tenant shall pay aNon-Permanent Payment of $10,000.00
per month beginning on April 10, 2016 and on the 10th day of each month
thereafter until such time as a TCO for the entire Main Building is issued and
delivered to the Landlord. Tenant agrees to notify the Landlord in writing of the
isona- of TCO or PCO. to the
any However, notwithstanding anything contrary
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FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019
herein, any Non-Permanent Payment that ceases pursuant to this Agreement upon
the issuance of a TCO or PCO shall cease upon the issuance of such TCO or PCO
regardless whether the Tenant notifies the Landlord of such issuance.
b. The Non-Permanent Payment set forth in paragraph 5(a) shall increase by an
additional $10,000,00 per month six (6) months after April 1, 2016 on October 1,
2016, and shall increase by an additional $10,000.00 per month each and every
six (6) months thereafter until such time as a TCO for the entire Main Building is
issued.
c. In the event that a PCO for the entire Main Building is not issued and delivered to
the Landlord within six (6) months of the issuance and delivery of a TCO for the
entire Main Building to the Landlord, then beginning on the next-occurring 10th
of the month six (6) months after the issuance and delivery of a TCO for the entire
Main Building to the Landlord, the Tenant shall pay a Non-Permanent Payment of
$10,000.00 per month until such time as a PCO for the entire Main Building is
issued.
d. In the event that a PCO for the entire Main Building is not issued and delivered to
the Landlord within twelve (12) months of the issuance of a TCO for the entire
Main Building, then beginning on the next-occurring 10th of the month twelve
(12) months after the issuance of a TCO for the entire Main Building:
i. $5,000.00 of the $10,000.00 monthly Non-Permanent Payment pursuant to
sub-paragraph 5(c) of this Agreement shall convert to a $5,000.00 increase
in the permanent Base Monthly Rent and the Base Monthly Rent schedule
set forth in paragraph 3(b) of this Agreement shall be recalculated and
deemed amended to reflect this additional increase in Base Monthly Rent;
ii. The remaining $5,000.00 of the $10,000.00 monthly Non-Permanent
Payment pursuant to sub-paragraph 5(c) of this Agreement shall continue
to be due and shall be increased by an additional amount of $10,000.00
per month until such time as a PCO for the entire Main Building is issued.
The monthly Non-Permanent Payment due under this sub-paragraph shall
be increased by an additional $10,000.00 per month every six (6) months
after the Non-Permanent Payment under this sub-paragraph goes into
effect until such time as a PCO for the entire Main Building is issued and
delivered to the Landlord.
6. Lapse of TCO on Annex.
a. In the event that any TCO issued for the Annex lapses and the Tenant does not
within nine (9) months renew, restore, or otherwise replace the lapsed TCO
with a replacement TCO or with a PCO for the whole or that portion of the
Annex subject to the lapsed TCO, then:
i. The Tenant shall pay a Non-Pennanent Payment of $10,000.00 per
month beginning on the next occurring 10th day of the month and on
the 10th day of each month thereafter until such time as a replace1116ilt
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FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019
TCO or a PCO for the whole or that portion of the Annex subject to
the lapsed TCO isissued; and
ii. The Non-Permanent Payment set forth in paragraph 6(a)(i) shall
increase by an additional $10,000.00 per month after six (6) months,
and shall increase by an additional $10,000.00 every six (6) months
thereafter until such time as a replacement TCO or a PCO for the
whole or that portion of the Annex subject to the lapsed TCO is issued.
7. Lapse of TCO on Main Building.
a. In the event that any TCO issued for the Main Building lapses and the Tenant
does not within nine (9) months renew, restore, or otherwise replace the
lapsed TCO with a replacement TCO or with a PCO for the whole or that
portion of the Main Building subject to the lapsed TCO, then:
i. The Tenant shall pay a Non-Permanent Payment of $10,000.00 per
month beginning on the next occurring 10th day of the month and on
the 10th day of each month thereafter until such time as a replacement
TCO or a PCO for the whole or that portion of the Main Building
subject to the lapsed TCO is issued; and
ii. The monthly Non-Permanent Payment set forth in paragraph 7(a)(i)
shall increase by an additional $10,000.00 after six (6) months, and
shall increase by an additional $10,000.00 every six (6) months
thereafter until such time as a replacement TCO or a PCO for the
whole or that portion of the Main Building subject to the lapsed TCO
is issued.
8. Violations.
a. The Tenant shall clear of record allof the following violations:
i. V032609LANDMK09-0980;
ii. V032609LANDMK09-0982;
iii. V042908LANDMK08-1221; and
b. In the event that the Tenant does not clear of record all of the above
referenced violations set forth in paragraph 8(a) on or before March 1, 2016,
then the Tenant shall pay a Non-Pennanent Payment of $1,000.00 per month
beginning on March 10, 2016 and on the 10th day of each month thereafter
until such time as the violations set forth above are cleared of record. For the
record"
purposes hereof, violations shall be deemed "cleared of ifthey no
longer appear on the Departrnent of Building's website as active or if they are
shown as cleared on such website or any other New York City website with
jurisdiction over such violation, or if Tenant provides other reasonable
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RE\87804\0001\2186336v1
Preview
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019 LEASE MODIFICATION AGREEMENT LEASE MODIFICATION AGREEMENT (this "Agreement") dated __, 2016 by and between Sheepshead Restaurant Associates, Inc. ("Landlord ') and Lundy's Management Corp.("Tenant"); WHEREAS, the Landlord and Tenant executed a Net Lease dated March 9, 1994 (the "Net Lease") for the land and improvements located at 1901 Emmons Avenue, Brooklyn, New York (the "Premises"); and WHEREAS, the Landlord and Tenant executed a Lease Modification and Amendment on July 21, 2010 (the "First Modification") modifying certain terms of the Net Lease; and WHEREAS, the Landlord and Tenant executed an Amendment to Lease Modification Agreement in November 2011 (the "Second ModiF_cation") modifying certain terms of the Net Lease and the First Modification; and WHEREAS, the Landlord and Tenant desire, by this Agreement, to resolve various disputes and litigations between the Landlord and Tenant; NOW, THEREFORE, in mutual consideration of the covenants contained herein, and other good and valuable consideration, the Landlord and the Tenant agree as follows: L Definitions. a. As used in this Agreement, the Main Building shall be defined as that portion of the Premises consisting of the two-story building, rooms, and land located at 1901-1929 Emmons Avenue, Brooklyn, New York 11235, and all ancillary structures attached thereto. b. As used in this Agreement, the Annex shall be defined as that portion of the Premises consisting of the three-story building, rooms, and land located at 31-52 to 31-76 Ocean Avenue, Brooklyn, New York 11235, and allancillary structures attached thereto. c. As used in this Agreement, the Lease Dae==•ants shall be defined as the Net Lease, the Pirst Modification, the Second Modification, this Agreement. d. As used in this Agreement, the Non-Payment Proceeding shall be defined as the commercial non-payment summary proceeding in Kings County Landlord/Tenant Court entitled Sheepshead Restaurant Associates, Inc. v. Lundy's Management Corp.. Commercial L/T Index #: 90922/2014, and the Non-Payment Warrant shall be defined as the warrant of eviction issued to the Landlord against the Tenant in the Non-Payment Proceeding; 1 RE\87804\0001\2186336v1 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019 xxiv, Base Monthly Rent for the period from March 9, 2038 through March 8, 2039 in the amount of $69,273.25; xxv. Base Monthly Rent for the period from March 9, 2039 through March 8, 2040 in the amount of $70,658.75; xxvi, Base Monthly Rent for the period from March 9, 2040 through March 8, 2041 in the amount of $72,071.89; xxvii. Base Monthly Rent for the period from March 9, 2041 through March 8, 2042 in the amount of $73,51333; xxviii. Base Monthly Rent for the period from March 9, 2042 through March 8, 2043 in the amount of $74,983.60. c. The term Base Monthly Rental, as used in this Agreement, and the term Minimum Rental, as used in the Net Lease, shall be interchangeable. d. on or about the firstof the month, the Landlord shall issue monthly invoices of nonpermanent payments pursuant to this Lease Modification Agreement. Failure of the Landlord to issue such invoices shall not affect the Tenant's obligation to make such payments or be deemed a waiver of itsright to claim or collect such sums. 4. The Annex. a. In the event that a PCO for the entire Annex is not issued on or before May 1, 2016, then the Tenant shall pay a Non-Permanent Payment of $2,500.00 per month beginning on May 10, 2016 and on the 10th day of each month thereafter until such time as a PCO for the entire Annex is issued. Tenant agrees to notify Landlord promptly upon Tenant's receipt of notice of the issuance of a TCO. However, notwithstanding anything to the contrary herein, any Non-Permanent Payment that ceases pursuant to this Agreement upon the issuance of a TCO or PCO shall cease upon the issuance of such TCO or PCO regardless whether the Tenant has notified the Landlord of such issuance. b. If in effect, the Non-Permanent Payment set forth in paragraph 4(a) shall increase by an additional $5,000.00 per month six months after May 1, 2016 on November 1, 2016, and shall increase by an additional $5,000,00 per month each and every six (6) months thereafter until such time as a PCO for the entire Annex is issued. 5. The Main Building. a. In the event that a TCO for the entire Main Building is not issued on or before April 1, 2016, then the Tenant shall pay aNon-Permanent Payment of $10,000.00 per month beginning on April 10, 2016 and on the 10th day of each month thereafter until such time as a TCO for the entire Main Building is issued and delivered to the Landlord. Tenant agrees to notify the Landlord in writing of the isona- of TCO or PCO. to the any However, notwithstanding anything contrary 4 RE\87804\0001\2186336v1 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019 herein, any Non-Permanent Payment that ceases pursuant to this Agreement upon the issuance of a TCO or PCO shall cease upon the issuance of such TCO or PCO regardless whether the Tenant notifies the Landlord of such issuance. b. The Non-Permanent Payment set forth in paragraph 5(a) shall increase by an additional $10,000,00 per month six (6) months after April 1, 2016 on October 1, 2016, and shall increase by an additional $10,000.00 per month each and every six (6) months thereafter until such time as a TCO for the entire Main Building is issued. c. In the event that a PCO for the entire Main Building is not issued and delivered to the Landlord within six (6) months of the issuance and delivery of a TCO for the entire Main Building to the Landlord, then beginning on the next-occurring 10th of the month six (6) months after the issuance and delivery of a TCO for the entire Main Building to the Landlord, the Tenant shall pay a Non-Permanent Payment of $10,000.00 per month until such time as a PCO for the entire Main Building is issued. d. In the event that a PCO for the entire Main Building is not issued and delivered to the Landlord within twelve (12) months of the issuance of a TCO for the entire Main Building, then beginning on the next-occurring 10th of the month twelve (12) months after the issuance of a TCO for the entire Main Building: i. $5,000.00 of the $10,000.00 monthly Non-Permanent Payment pursuant to sub-paragraph 5(c) of this Agreement shall convert to a $5,000.00 increase in the permanent Base Monthly Rent and the Base Monthly Rent schedule set forth in paragraph 3(b) of this Agreement shall be recalculated and deemed amended to reflect this additional increase in Base Monthly Rent; ii. The remaining $5,000.00 of the $10,000.00 monthly Non-Permanent Payment pursuant to sub-paragraph 5(c) of this Agreement shall continue to be due and shall be increased by an additional amount of $10,000.00 per month until such time as a PCO for the entire Main Building is issued. The monthly Non-Permanent Payment due under this sub-paragraph shall be increased by an additional $10,000.00 per month every six (6) months after the Non-Permanent Payment under this sub-paragraph goes into effect until such time as a PCO for the entire Main Building is issued and delivered to the Landlord. 6. Lapse of TCO on Annex. a. In the event that any TCO issued for the Annex lapses and the Tenant does not within nine (9) months renew, restore, or otherwise replace the lapsed TCO with a replacement TCO or with a PCO for the whole or that portion of the Annex subject to the lapsed TCO, then: i. The Tenant shall pay a Non-Pennanent Payment of $10,000.00 per month beginning on the next occurring 10th day of the month and on the 10th day of each month thereafter until such time as a replace1116ilt 5 RE\87804\0001\218639691 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 479 RECEIVED NYSCEF: 09/06/2019 TCO or a PCO for the whole or that portion of the Annex subject to the lapsed TCO isissued; and ii. The Non-Permanent Payment set forth in paragraph 6(a)(i) shall increase by an additional $10,000.00 per month after six (6) months, and shall increase by an additional $10,000.00 every six (6) months thereafter until such time as a replacement TCO or a PCO for the whole or that portion of the Annex subject to the lapsed TCO is issued. 7. Lapse of TCO on Main Building. a. In the event that any TCO issued for the Main Building lapses and the Tenant does not within nine (9) months renew, restore, or otherwise replace the lapsed TCO with a replacement TCO or with a PCO for the whole or that portion of the Main Building subject to the lapsed TCO, then: i. The Tenant shall pay a Non-Permanent Payment of $10,000.00 per month beginning on the next occurring 10th day of the month and on the 10th day of each month thereafter until such time as a replacement TCO or a PCO for the whole or that portion of the Main Building subject to the lapsed TCO is issued; and ii. The monthly Non-Permanent Payment set forth in paragraph 7(a)(i) shall increase by an additional $10,000.00 after six (6) months, and shall increase by an additional $10,000.00 every six (6) months thereafter until such time as a replacement TCO or a PCO for the whole or that portion of the Main Building subject to the lapsed TCO is issued. 8. Violations. a. The Tenant shall clear of record allof the following violations: i. V032609LANDMK09-0980; ii. V032609LANDMK09-0982; iii. V042908LANDMK08-1221; and b. In the event that the Tenant does not clear of record all of the above referenced violations set forth in paragraph 8(a) on or before March 1, 2016, then the Tenant shall pay a Non-Pennanent Payment of $1,000.00 per month beginning on March 10, 2016 and on the 10th day of each month thereafter until such time as the violations set forth above are cleared of record. For the record" purposes hereof, violations shall be deemed "cleared of ifthey no longer appear on the Departrnent of Building's website as active or if they are shown as cleared on such website or any other New York City website with jurisdiction over such violation, or if Tenant provides other reasonable 6 RE\87804\0001\2186336v1