Preview
FILED: KINGS COUNTY CLERK 09/06/2019
08/19/2020 03:26
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 477
586 RECEIVED NYSCEF: 09/06/2019
08/19/2020
netleas.cap disc md7
NET LEASE
- Landlord: sheepshead Restaurant Inc.
Associates,
8806 Fourth Avenue
,Brooklyn, New York 11209
Corp.'
Tenant: Lundy's Management
2770 Ocean-Avenue
Brooklyn, New York 11229
Premises: Land and Building at
1901 Emmons Avenue
Brooklyn, New York
Term: Forty-Nine (49) Years
. Commencement Date: March 9, 1994
Termination Date: March 8, 2043
Counsel -Tenant: Hamburger, Green & Haber, Esqs.
60 East 42nd Street
New York, New York 10165
(212) 687-1090
Counsel Landlord: Beal Klasfeld Lents & Romash, Esqs.
488 Madison Avenue
New York, New York 10022
(212) 688 0004
..
FILED: KINGS COUNTY CLERK 09/06/2019
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AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 477
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1. THE LEASED PREMISES.. . . . . . . . . . . . . . . . 2
2. TERM.. . . . . . . ... . . . . . . . . . . . . . . . 2
3A. FIXED ANNUAL MINIMUM RENTAL . . . . . . . . . . . 3
3B. FAIR MARKET RENTS . , , . . . . . . . ·. . . .. . . 4
4. UTILITIES . . . . . . . . . . . . . . . . . .- . . 6
5. ADDITIONAL RENT . . . . . . . . . . . ... . . . . 7
6. USE . . . ... . . . . . . . . . . . . . . . . . . 8
7. COMPLIANCE WITH LAWS AND AGREEMENTS . . . . . . . 9
8. MAINTENANCE AND REPAIR . . . . . . . . . . . . . . 10
9. CHANGES, ALTERATIONS AND NEW CONSTRUCTION
BY THE TENANT .. . . , . . . . . . . . . . . . . . 10
10. INDEMNITY AND PUBLIC LIABILITY INSURANCE . . . . . 13
11. INSURANCE FOR .DAMAGE OR DESTRUCTION AND
WORKER'S COMPENSATION . . . . . . . . . . . . . . 14
12. CONDEMNATION AND REJECTABLE OFFER . . . . . . . . 17
13. REMOVAL OF TENANT'S PROPERTY . . . . . . . . . . . 19
14. SUBORDINATION,. NON-DISTURBANCE, NOTICE TO
LESSORS AND MORTGAGEES . . . . . . . . . . . . . . 19
15. NON-WAIVER . . . . . . . . . . . . . . . . . . . . 21
16. QUIET-ENJOYMENT. . . . . . . . . . . . . . . . . . 21
17. ASSIGNMENT AND SUBLETTING . . . . , . . . . . . . 22
18. ENTRY BY-LANDLORD . . . . . . . . . . . . . . . . .24
. 19. TENANT'S DEFAULT. . . . . . . . . . . . . . . . . .24
20. BANKRUPTCY OR INSOLVENCY . . . . . . . . . , . . . 27
21. TAX APPEALS AND CONTESTS . . . . . . . . . .. . . . 30
22. SIGNS . . . . . . . . . . . . . .. . . . . . . . . 31
23. OF- . . . . . . . . 32
SURRENDER PREMISES . . . . . .
"LANDLORD"
24. DEFINED . .·. . . . . . . . . . . . . . 32
25. PAYMENTS.- . . . . . . . . . 33
TENANT'S . . . . . . .
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26, RIGHT.TO CURE DEFAULTS . . . . . . . . . . . . . . 33
27. COVENANT AGAINST LIENS . . . . . . . . . . . . . . 34
28. WAIVER OF REDEMPTION . . . . . . . . . . . . . . . 34
29, LANDLORD'S AND TENANT'S CERTIFICATES . . . . . . . 35
30. WAIVER OF TRIAL BY JURY AND WAIVERS
. BY GUARANTORS . . . . . . . . . . . . . . . . . . 35
31. NET LEASE; NON-TERMINABILITY . . . . . . . , . . . 36
32. MISCELLANEOUS PROVISIONS . . . . . . ... . . . . . 36
33. ADDITIONAL CONSIDERATION . . . : . . . . . . . . . 40
34. SECURITY . . . . . . . . . . . . . . . . . . . . . 41
35. BROKERS . . . . . . . . . . ,·. . . . . . . . . . 42
36, 'THREE STORY ANNEX , , , , . , . , , , . , , , , 42
37. MORTGAGE . . . . . . . . . . . . . . . . . . . . 43
38. NON-DISTURBANCE AGREEMENTS FOR SUBTENANTS. . . . . 48
39. DEFINITIONS . . . . . . . . . . . . . . . . . . . 49
FILED: KINGS COUNTY CLERK 09/06/2019
08/19/2020 03:26
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 477
586 RECEIVED NYSCEF: 09/06/2019
08/19/2020
LEASE
.THIS LEASE entered into this 9th day of March, 1994, by
and between Sheepshead Restaurant a· New York
Associates, Inc.,
corporation, having an office located at 8806 Fourth Avenue,
Brooklyn, New York .11209, (hereinafter called the "Landlord") and
LUNDY'S MANAGEMENT CORP., a New York corpóration, having an
office located at 2770 ocean Avenue, Brooklyn, New York,,11229,
(hereinafter called the "Tenant").
Úpon the terms and subject to the conditions hereinafter
set forth, the Landlord leases to the Tenant and the Tenant
leases from the Landlord, the property herein.after described:
1. THE LEASED PREMISES.
(.a) The property hereby-leased to the Tenant is the
tract or tracts of land (the "Land") situated in the Borough of
Brooklyn in the City of New York and State of New York, known as
. 1901 Emmons Avenue, Brooklyn, New.York, and more particularly
"A" reference
described in Schedule annexed hereto and by this
made a part hereof, together with the buildings and other
improvements now or hereafter located thereon (collectively the
"Imp'rovements").
The Land and Improvements leased hereunder, together
with all appurtenances thereto, hereinafter sometimes
collectively referred to as the "Leased Premises", are demised
and let-subject to (a) the existing state of the title thereof as
of the commencement of the Term of this Lease, (b) any state of
facts which an accurate survey or physical inspection thereof
might show, (c) all zoning regulations,. restrictions, rules and
ordinances, building restrictions and other laws and regulations
now in effect or hereafter adopted by any governmental authority
having jurisdiction, and (d) with respect to the Improvements,
their conditions as of the commencement of the Term of this
Lease, without representation or warranty by Landlord. Tenant
represents to Landlord that Tenant has examined the title to and
the physical condition of the Leased Premises prior to the
execution and delivery of this Lease and has found the same to be
satisfactory for all the purposes hereof, and Tenant accepts the
. I title and condition of the Leased Premises in their respective,
present condition "as is".
Landlord makes no representation or warranty with
respect to the condition of the Leased Premises or its fitness or
for particular nor does the Landlord represent
usability any use,
that it has any certificate of occupancy for the Leased Premises,
and Landlord shall not be liable for latent or patent defect
any
that may exist in or about the Leased. Premises.
2, TERM.
The Term of this Lease (the "Term") shall be for a
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period commencing.on the date of this Lease and terminating on
the 49th anniversary thereof, plus the number of days necessary
to cause the Term to end on the last day of a calendar month, or
on such earlier date upon which said Term may expir.e or be
terminated pursuant to any of the conditions of limitation or
the·
other provisions of this Lease or pursuant to provisions of
any present or-future constitution, law, statute, ordinance,
rule, regulation, other governmental order or controlling
judicial determination ·of municipal or.
any federal, state, local,
other governmental-body, agency or authority having or asserting
jurisdiction and all departments, commissions,,boards and
officers thereof (collectively the "Laws").
3A. FIXED ANNUAL MINIMUM RENTAL.
Tenants covenants to pay Landlord, without previous
demand therefor and without any setoff or deduction whatsoever a
net fixed annual minimum rent (the "Minimum Rental") for each
year of the Term of this Lease, payable in equal monthly
installments, in advance, on or before the tenth (10th) day of
each and every calendar month during the Term of this Lease.as
follows:
''
(1) During the first through the fifteenth
month of the the Minimum· Rent is however all
Term, waived,
Additional Rents shall be paid as same become due,
(ii) During the sixteenth through the
twenty-f.ourth month of the a Minimum Rent at the rate of '-
Term,
$100,000.00 per annum ($8,333.33 per month)
(ii'i) During the twenty-fifth month through
the thirtieth month, s Minimum Rent at the rate of $200,000.00
per annum ($16,666.67 per month);
(iv) -During the thirty-first.month throûgh
the seventh years of the Term, a Minimum Re.nt at the rate of
$300,000 ,per annum;
(v) During the eighth year through the
twelfth year of the Term, a Minimum Rent of $330,000 per annum.
(vi-) During the thirteenth through the
seventeenth year of the Term, a Minimum Rent of $363,000 per
annum.
(vii) During the eighteenth through the
twenty-second year of the a Minimum Rent- of $399,300 per
Term,
annum.
(viii) During the twenty-third through the
twenty seventh year of the Term, a-Minimum Rent of $439,230 per
annum.
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(ix) During the twenty-eighth through the
thirty-second year of the Term, a Minimum Rent of $483,153 per
annum. .
(x) During the thirty-third through the
thirty-seventh year of the Term, a Minimum Rent of $531,468.30
per annum.
(xi) During the thirty-eighth through the
forty-second year of the Term, a Minimum Rent of $584,615.13 per
annum.
(xii) During the forty-third through the
forty-seventh year of the Term, a Minimum Rent of $643,076.64 per
annum.
(xiii) During the forty-eighth and.the
forty-ninth year of the a Minimum Rent of $707,384.31 per ·
Term,
annum.
3B. FAIR MARKET RENTS
The parties acknowledge and agree that- after the
seventeenth (17th) year of the Term and for the balance of the
Term of this Lease the Landlord should be paid the Mini.mum
Rentals equal to Fair Market Value for the Leased Premises which
they are now unable to anticipate. Accordingly, the parties
agree as follows:
- i) Designated Arbitrators shall be persons licensed by
the State of New York as Real Estate Broker, who are
members of the Brooklyn Board of Realtors, with
offices in the Sheepshead Bay Area of Brooklyn.
11) At the time that the Tenant notifies the Landlord
that it disputes the reasonableness of the Fair
Market Value of the Fixed Minimum Rental set by the
Landlord under the "b" it shall
provisions of above,
submit to the Landlord the name and address of an
Arbitrator designated by it.
iii) Within seven (7) business days of the delivery of
"ii" the
Tenant's to _the Landlord pursuant to above,
B Tenant Arbi-
Landlord-shall notify both the and the
add-
tr.ator designated by the Tenant, ·the name and
ress of an Arbitrator designated by the Landlord.
iv) The named Arbitrators shall meet within seven (7)
days after the delivery of the Notice described in
"111"
above, and shall with diligence proceed to
come to· an agreement as to then Fair Market Value
for that rent period..
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v) If the two Arbitrators so designated shall be unable
to arrive at an agreement within such seven (7) day
period, then either of the Parties, or any one of
the Arbitrators shall request the President of the
Brooklyn Board of Realtors to designate a third
- | Arbitrator. Then within seven (7).days after the
designation of.the third Arbitrator the three
Arbitrators shall meet and diligently proceed to fix
the Fair Market Value of the Fixed Minimum Rentals
for that period. The determination of a majority of
the Arbitrators of the Fair. Market Value of the
Fixed Minimum Rentals shall then be binding.
vi) The Fair Market Value of Fixed.Minimum Rentals
established by such arbitration shall in no event be
less than the Fixed Minimum Rentals.above set forth
for the lease years then under consideration.
vii) The. Landlord and the Tenant shall pay the cost and
expenses of the Arbitrator they designated; -and the
they shall each pay 50% of the fees and expenses of
the third Arbitrator.
viii) Until such time as the Arbitrators shall have made
their finding with respect to Fair Market Value, the
Tenant shall pay rents to conform to the Fair Market
Value the "a" above.
establish'ed by Landlord under
If the Fair Market Value determined the Arbitra-
by
tors shall be less than the Fair Market Value
established by the Landlord, then the Landlord shall
reimburse the Tenant for the excess payments made;
If the Fair Market Value the Arbitra-
determined by
tors shall be more than the amount .estab-
initially
lished by the Landlord, then the Tenant shall pay .
the Landlord difference of the amount it had paid
and the Fair Market Value so established,
Section II: The average of the square foot rents
charged by the Tenant to its subtenants for the third (3) year of
square·
the demised term multiplied by the total footage of the
premises, for purpose of this section, shall be designated as the
"Base Subtenants Rents"; at the commencement of the eighteenth
(18) year of the term, the average of the square foot rents then
charged by the Tenant to its subtenants multiplied by the·total
square footage of the premises for the seventeenth (17) year of
the demised term, which amount, for the purpose:of this section
shall be designated as the "Comparable Subtenants Rents". The
percentage increase of the Comparable Subtenants Rents above the
Base Subtenants Rents shall then be multiplied by 75%, then the
percentage so determined shall then·be multiplied by $300,000.00,
and the product thereof shall be added to $300,000. If this
amount is greater than the Fixed Minimum Rents set in paragraph
"3A"
such total shall be the Minimum Rents for the rental period
commencing with the··start of the eighteenth (18) year then that
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greater amount shall be substituted for the highest Minimum .Rent
"3A" "3B" hereof. As
as determined in Par.agraph or in Paragraph
an example:
If the Base Subtenants Rents is $800,000.00
and if the Comparable Subtenants Rents 'is
$1,600,000.00,. then the percentage increase is 100%;
then 75% of the percentage increase will be 75%; the
-
product of $300,000,00 multiplied by 75% will be
$225,000.00, that amount added to $300,000.00, will
be $525,000.00 and said amount will be the Minimum
Rent the period with eigh-
for rental commencing
teenth year. Based upon this adjustment, the
Minimum.Rents for the next fifteen (15) years will
be determined and increased in each such subsequent
amount origin-
rental period by 10% as if this were
inserted in paragraph "3A(vii}". hereof. in place
ally
of $399,300.00 therein.described as the Minimum Rent
commencing with the eighteenth year.
That for the purposes of this Section II the Minimum Rents for
the period commencing with the thirty-third year shall likewise
be determined, for example:
The Rents" for the
"Comparable Subtenants
thirty-second (32) year shall be ascertained; thén 75% of the
percentage of the increase of that Comparable Subtenants Rents
"Base Rents" added $300,000.00 shall
as to the Subtenants when to
be the Minimum Rents for the rental period commencing with the
thirty-third year if that amount is greater. than the Minimum
Rents for the period commencing with the thirty-third (33) year
as theretofore determined.
If the Landlord shall dispute the reasonableness of the
square foot rents charged by the Tenant which are the basis for
determining the Base Subtenants Rents and/or the Comparable
Subtenants Rents,. such dispute shall be resolved by arbitration
as provided for in Section I hereof.
In the event that the Term of this Lease does not
3 commence on the first of a calendar month, the installment of
day
Minimum Rental for the partial calendar month at the commencement
of the Term of this Lease-shall be prorated on the basis. of the
number of days of the Term within such calendar month. The first
installment of Minimum Rental shall be paid simultaneously with
the execution of this Lease. Landlord.may, at its option, direct
Tenant to pay all or any portion of the Minimum Rehtal directly
to the holder of any mortgage on the Leased Premises and to pay
the balance of the Minimum Rental, if any, to Landlord.
4. UTILITIES.
. Tenant shall obtain, at its own expense, all
utilities of every-type and nature required by.it in its use of
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the Leased Premises and shall pay.or cause to be paid, when due,
all bills for water, sewerage, heat, gas, electricity and other
utilities, if any, used on, in connection with, or chargeable
against the Leased Premises until the termination of this Lease
and all bills for utility charges relating to the Leased Premises
or the use thereof and imposed on users of utilities, whether or
not such charges shall relate to services or benefits available
to the Tenant during the Term of this.Lease, and the Tenant shall
indemnify and save harmless the Landlord from and against any
loss, cost and expense in connection therewith. Landlord will
. not be liable to provide any services under this Article, nor
shall Landlord be liable for any disruption of said services.
5. ADDITIONAL RENT,
.(a) It is the purpose and intent of the Landlord
and Tenant that the Minimum Rental payable hereunder shall be
absolutely net to the Landlord so that this Lease shall yield,
net to the Landlord, the rents specified herein in each year
during the Term of this Lease.
(b) Tenant covenants to pay, before any fine,
penalty, interest or cost may be added thereto for the
non-payment thereof, as additional rent, all taxes, assessments
(inc·luding but not limited to, all assessments for public
improvements or benefits, commenced or completed within the Term
of this Lease), water, sewer and other rents, rates and charges,
charges for public utilities, excises, levies, license and permit
and inspection fees and other governmental charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, of
any kind and nature whatsoever, which at any time during the Term
of this Lease may have been or may be assessed, levied,
confirmed, imposed upon, or grow or become due or payable out of
or in respect of, or become a lien on, the Leased Premises or any
part _thereof or any appurtenance thereto, any personal property,.
the rent and income received by Tenant from subtenants,.pny use,
possession or occupátion of the Leased Premises, 'Or rentals or
sales therefrom or activity conducted therein, such franchises as
may be appurtenant to the use or occupation of the Leased
Premises, this transaction or any document to which Tenant is a
party creating or transferring any right, title or interest or
estate in the Leased Premises (all of the foregoing, together
with any and all penalties and/or interest thereon, being
hereinafter sometimes collectively referred to as "Impositions",
and any of the same being hereinafter sometimes referred to as an
"Imposition"). herein contained shall require Tenant to
Nothing
pay income taxes assessed against Landlord, or any capital·1evy,
corporation franchise, excess profi
Preview
FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 netleas.cap disc md7 NET LEASE - Landlord: sheepshead Restaurant Inc. Associates, 8806 Fourth Avenue ,Brooklyn, New York 11209 Corp.' Tenant: Lundy's Management 2770 Ocean-Avenue Brooklyn, New York 11229 Premises: Land and Building at 1901 Emmons Avenue Brooklyn, New York Term: Forty-Nine (49) Years . Commencement Date: March 9, 1994 Termination Date: March 8, 2043 Counsel -Tenant: Hamburger, Green & Haber, Esqs. 60 East 42nd Street New York, New York 10165 (212) 687-1090 Counsel Landlord: Beal Klasfeld Lents & Romash, Esqs. 488 Madison Avenue New York, New York 10022 (212) 688 0004 .. FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 1. THE LEASED PREMISES.. . . . . . . . . . . . . . . . 2 2. TERM.. . . . . . . ... . . . . . . . . . . . . . . . 2 3A. FIXED ANNUAL MINIMUM RENTAL . . . . . . . . . . . 3 3B. FAIR MARKET RENTS . , , . . . . . . . ·. . . .. . . 4 4. UTILITIES . . . . . . . . . . . . . . . . . .- . . 6 5. ADDITIONAL RENT . . . . . . . . . . . ... . . . . 7 6. USE . . . ... . . . . . . . . . . . . . . . . . . 8 7. COMPLIANCE WITH LAWS AND AGREEMENTS . . . . . . . 9 8. MAINTENANCE AND REPAIR . . . . . . . . . . . . . . 10 9. CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY THE TENANT .. . . , . . . . . . . . . . . . . . 10 10. INDEMNITY AND PUBLIC LIABILITY INSURANCE . . . . . 13 11. INSURANCE FOR .DAMAGE OR DESTRUCTION AND WORKER'S COMPENSATION . . . . . . . . . . . . . . 14 12. CONDEMNATION AND REJECTABLE OFFER . . . . . . . . 17 13. REMOVAL OF TENANT'S PROPERTY . . . . . . . . . . . 19 14. SUBORDINATION,. NON-DISTURBANCE, NOTICE TO LESSORS AND MORTGAGEES . . . . . . . . . . . . . . 19 15. NON-WAIVER . . . . . . . . . . . . . . . . . . . . 21 16. QUIET-ENJOYMENT. . . . . . . . . . . . . . . . . . 21 17. ASSIGNMENT AND SUBLETTING . . . . , . . . . . . . 22 18. ENTRY BY-LANDLORD . . . . . . . . . . . . . . . . .24 . 19. TENANT'S DEFAULT. . . . . . . . . . . . . . . . . .24 20. BANKRUPTCY OR INSOLVENCY . . . . . . . . . , . . . 27 21. TAX APPEALS AND CONTESTS . . . . . . . . . .. . . . 30 22. SIGNS . . . . . . . . . . . . . .. . . . . . . . . 31 23. OF- . . . . . . . . 32 SURRENDER PREMISES . . . . . . "LANDLORD" 24. DEFINED . .·. . . . . . . . . . . . . . 32 25. PAYMENTS.- . . . . . . . . . 33 TENANT'S . . . . . . . FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 26, RIGHT.TO CURE DEFAULTS . . . . . . . . . . . . . . 33 27. COVENANT AGAINST LIENS . . . . . . . . . . . . . . 34 28. WAIVER OF REDEMPTION . . . . . . . . . . . . . . . 34 29, LANDLORD'S AND TENANT'S CERTIFICATES . . . . . . . 35 30. WAIVER OF TRIAL BY JURY AND WAIVERS . BY GUARANTORS . . . . . . . . . . . . . . . . . . 35 31. NET LEASE; NON-TERMINABILITY . . . . . . . , . . . 36 32. MISCELLANEOUS PROVISIONS . . . . . . ... . . . . . 36 33. ADDITIONAL CONSIDERATION . . . : . . . . . . . . . 40 34. SECURITY . . . . . . . . . . . . . . . . . . . . . 41 35. BROKERS . . . . . . . . . . ,·. . . . . . . . . . 42 36, 'THREE STORY ANNEX , , , , . , . , , , . , , , , 42 37. MORTGAGE . . . . . . . . . . . . . . . . . . . . 43 38. NON-DISTURBANCE AGREEMENTS FOR SUBTENANTS. . . . . 48 39. DEFINITIONS . . . . . . . . . . . . . . . . . . . 49 FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 LEASE .THIS LEASE entered into this 9th day of March, 1994, by and between Sheepshead Restaurant a· New York Associates, Inc., corporation, having an office located at 8806 Fourth Avenue, Brooklyn, New York .11209, (hereinafter called the "Landlord") and LUNDY'S MANAGEMENT CORP., a New York corpóration, having an office located at 2770 ocean Avenue, Brooklyn, New York,,11229, (hereinafter called the "Tenant"). Úpon the terms and subject to the conditions hereinafter set forth, the Landlord leases to the Tenant and the Tenant leases from the Landlord, the property herein.after described: 1. THE LEASED PREMISES. (.a) The property hereby-leased to the Tenant is the tract or tracts of land (the "Land") situated in the Borough of Brooklyn in the City of New York and State of New York, known as . 1901 Emmons Avenue, Brooklyn, New.York, and more particularly "A" reference described in Schedule annexed hereto and by this made a part hereof, together with the buildings and other improvements now or hereafter located thereon (collectively the "Imp'rovements"). The Land and Improvements leased hereunder, together with all appurtenances thereto, hereinafter sometimes collectively referred to as the "Leased Premises", are demised and let-subject to (a) the existing state of the title thereof as of the commencement of the Term of this Lease, (b) any state of facts which an accurate survey or physical inspection thereof might show, (c) all zoning regulations,. restrictions, rules and ordinances, building restrictions and other laws and regulations now in effect or hereafter adopted by any governmental authority having jurisdiction, and (d) with respect to the Improvements, their conditions as of the commencement of the Term of this Lease, without representation or warranty by Landlord. Tenant represents to Landlord that Tenant has examined the title to and the physical condition of the Leased Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for all the purposes hereof, and Tenant accepts the . I title and condition of the Leased Premises in their respective, present condition "as is". Landlord makes no representation or warranty with respect to the condition of the Leased Premises or its fitness or for particular nor does the Landlord represent usability any use, that it has any certificate of occupancy for the Leased Premises, and Landlord shall not be liable for latent or patent defect any that may exist in or about the Leased. Premises. 2, TERM. The Term of this Lease (the "Term") shall be for a FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 period commencing.on the date of this Lease and terminating on the 49th anniversary thereof, plus the number of days necessary to cause the Term to end on the last day of a calendar month, or on such earlier date upon which said Term may expir.e or be terminated pursuant to any of the conditions of limitation or the· other provisions of this Lease or pursuant to provisions of any present or-future constitution, law, statute, ordinance, rule, regulation, other governmental order or controlling judicial determination ·of municipal or. any federal, state, local, other governmental-body, agency or authority having or asserting jurisdiction and all departments, commissions,,boards and officers thereof (collectively the "Laws"). 3A. FIXED ANNUAL MINIMUM RENTAL. Tenants covenants to pay Landlord, without previous demand therefor and without any setoff or deduction whatsoever a net fixed annual minimum rent (the "Minimum Rental") for each year of the Term of this Lease, payable in equal monthly installments, in advance, on or before the tenth (10th) day of each and every calendar month during the Term of this Lease.as follows: '' (1) During the first through the fifteenth month of the the Minimum· Rent is however all Term, waived, Additional Rents shall be paid as same become due, (ii) During the sixteenth through the twenty-f.ourth month of the a Minimum Rent at the rate of '- Term, $100,000.00 per annum ($8,333.33 per month) (ii'i) During the twenty-fifth month through the thirtieth month, s Minimum Rent at the rate of $200,000.00 per annum ($16,666.67 per month); (iv) -During the thirty-first.month throûgh the seventh years of the Term, a Minimum Re.nt at the rate of $300,000 ,per annum; (v) During the eighth year through the twelfth year of the Term, a Minimum Rent of $330,000 per annum. (vi-) During the thirteenth through the seventeenth year of the Term, a Minimum Rent of $363,000 per annum. (vii) During the eighteenth through the twenty-second year of the a Minimum Rent- of $399,300 per Term, annum. (viii) During the twenty-third through the twenty seventh year of the Term, a-Minimum Rent of $439,230 per annum. not-loan. discmd7 FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 (ix) During the twenty-eighth through the thirty-second year of the Term, a Minimum Rent of $483,153 per annum. . (x) During the thirty-third through the thirty-seventh year of the Term, a Minimum Rent of $531,468.30 per annum. (xi) During the thirty-eighth through the forty-second year of the Term, a Minimum Rent of $584,615.13 per annum. (xii) During the forty-third through the forty-seventh year of the Term, a Minimum Rent of $643,076.64 per annum. (xiii) During the forty-eighth and.the forty-ninth year of the a Minimum Rent of $707,384.31 per · Term, annum. 3B. FAIR MARKET RENTS The parties acknowledge and agree that- after the seventeenth (17th) year of the Term and for the balance of the Term of this Lease the Landlord should be paid the Mini.mum Rentals equal to Fair Market Value for the Leased Premises which they are now unable to anticipate. Accordingly, the parties agree as follows: - i) Designated Arbitrators shall be persons licensed by the State of New York as Real Estate Broker, who are members of the Brooklyn Board of Realtors, with offices in the Sheepshead Bay Area of Brooklyn. 11) At the time that the Tenant notifies the Landlord that it disputes the reasonableness of the Fair Market Value of the Fixed Minimum Rental set by the Landlord under the "b" it shall provisions of above, submit to the Landlord the name and address of an Arbitrator designated by it. iii) Within seven (7) business days of the delivery of "ii" the Tenant's to _the Landlord pursuant to above, B Tenant Arbi- Landlord-shall notify both the and the add- tr.ator designated by the Tenant, ·the name and ress of an Arbitrator designated by the Landlord. iv) The named Arbitrators shall meet within seven (7) days after the delivery of the Notice described in "111" above, and shall with diligence proceed to come to· an agreement as to then Fair Market Value for that rent period.. FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 v) If the two Arbitrators so designated shall be unable to arrive at an agreement within such seven (7) day period, then either of the Parties, or any one of the Arbitrators shall request the President of the Brooklyn Board of Realtors to designate a third - | Arbitrator. Then within seven (7).days after the designation of.the third Arbitrator the three Arbitrators shall meet and diligently proceed to fix the Fair Market Value of the Fixed Minimum Rentals for that period. The determination of a majority of the Arbitrators of the Fair. Market Value of the Fixed Minimum Rentals shall then be binding. vi) The Fair Market Value of Fixed.Minimum Rentals established by such arbitration shall in no event be less than the Fixed Minimum Rentals.above set forth for the lease years then under consideration. vii) The. Landlord and the Tenant shall pay the cost and expenses of the Arbitrator they designated; -and the they shall each pay 50% of the fees and expenses of the third Arbitrator. viii) Until such time as the Arbitrators shall have made their finding with respect to Fair Market Value, the Tenant shall pay rents to conform to the Fair Market Value the "a" above. establish'ed by Landlord under If the Fair Market Value determined the Arbitra- by tors shall be less than the Fair Market Value established by the Landlord, then the Landlord shall reimburse the Tenant for the excess payments made; If the Fair Market Value the Arbitra- determined by tors shall be more than the amount .estab- initially lished by the Landlord, then the Tenant shall pay . the Landlord difference of the amount it had paid and the Fair Market Value so established, Section II: The average of the square foot rents charged by the Tenant to its subtenants for the third (3) year of square· the demised term multiplied by the total footage of the premises, for purpose of this section, shall be designated as the "Base Subtenants Rents"; at the commencement of the eighteenth (18) year of the term, the average of the square foot rents then charged by the Tenant to its subtenants multiplied by the·total square footage of the premises for the seventeenth (17) year of the demised term, which amount, for the purpose:of this section shall be designated as the "Comparable Subtenants Rents". The percentage increase of the Comparable Subtenants Rents above the Base Subtenants Rents shall then be multiplied by 75%, then the percentage so determined shall then·be multiplied by $300,000.00, and the product thereof shall be added to $300,000. If this amount is greater than the Fixed Minimum Rents set in paragraph "3A" such total shall be the Minimum Rents for the rental period commencing with the··start of the eighteenth (18) year then that -5- net-leas,3 discmd7 FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 greater amount shall be substituted for the highest Minimum .Rent "3A" "3B" hereof. As as determined in Par.agraph or in Paragraph an example: If the Base Subtenants Rents is $800,000.00 and if the Comparable Subtenants Rents 'is $1,600,000.00,. then the percentage increase is 100%; then 75% of the percentage increase will be 75%; the - product of $300,000,00 multiplied by 75% will be $225,000.00, that amount added to $300,000.00, will be $525,000.00 and said amount will be the Minimum Rent the period with eigh- for rental commencing teenth year. Based upon this adjustment, the Minimum.Rents for the next fifteen (15) years will be determined and increased in each such subsequent amount origin- rental period by 10% as if this were inserted in paragraph "3A(vii}". hereof. in place ally of $399,300.00 therein.described as the Minimum Rent commencing with the eighteenth year. That for the purposes of this Section II the Minimum Rents for the period commencing with the thirty-third year shall likewise be determined, for example: The Rents" for the "Comparable Subtenants thirty-second (32) year shall be ascertained; thén 75% of the percentage of the increase of that Comparable Subtenants Rents "Base Rents" added $300,000.00 shall as to the Subtenants when to be the Minimum Rents for the rental period commencing with the thirty-third year if that amount is greater. than the Minimum Rents for the period commencing with the thirty-third (33) year as theretofore determined. If the Landlord shall dispute the reasonableness of the square foot rents charged by the Tenant which are the basis for determining the Base Subtenants Rents and/or the Comparable Subtenants Rents,. such dispute shall be resolved by arbitration as provided for in Section I hereof. In the event that the Term of this Lease does not 3 commence on the first of a calendar month, the installment of day Minimum Rental for the partial calendar month at the commencement of the Term of this Lease-shall be prorated on the basis. of the number of days of the Term within such calendar month. The first installment of Minimum Rental shall be paid simultaneously with the execution of this Lease. Landlord.may, at its option, direct Tenant to pay all or any portion of the Minimum Rehtal directly to the holder of any mortgage on the Leased Premises and to pay the balance of the Minimum Rental, if any, to Landlord. 4. UTILITIES. . Tenant shall obtain, at its own expense, all utilities of every-type and nature required by.it in its use of -6- FILED: KINGS COUNTY CLERK 09/06/2019 08/19/2020 03:26 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 477 586 RECEIVED NYSCEF: 09/06/2019 08/19/2020 the Leased Premises and shall pay.or cause to be paid, when due, all bills for water, sewerage, heat, gas, electricity and other utilities, if any, used on, in connection with, or chargeable against the Leased Premises until the termination of this Lease and all bills for utility charges relating to the Leased Premises or the use thereof and imposed on users of utilities, whether or not such charges shall relate to services or benefits available to the Tenant during the Term of this.Lease, and the Tenant shall indemnify and save harmless the Landlord from and against any loss, cost and expense in connection therewith. Landlord will . not be liable to provide any services under this Article, nor shall Landlord be liable for any disruption of said services. 5. ADDITIONAL RENT, .(a) It is the purpose and intent of the Landlord and Tenant that the Minimum Rental payable hereunder shall be absolutely net to the Landlord so that this Lease shall yield, net to the Landlord, the rents specified herein in each year during the Term of this Lease. (b) Tenant covenants to pay, before any fine, penalty, interest or cost may be added thereto for the non-payment thereof, as additional rent, all taxes, assessments (inc·luding but not limited to, all assessments for public improvements or benefits, commenced or completed within the Term of this Lease), water, sewer and other rents, rates and charges, charges for public utilities, excises, levies, license and permit and inspection fees and other governmental charges, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever, which at any time during the Term of this Lease may have been or may be assessed, levied, confirmed, imposed upon, or grow or become due or payable out of or in respect of, or become a lien on, the Leased Premises or any part _thereof or any appurtenance thereto, any personal property,. the rent and income received by Tenant from subtenants,.pny use, possession or occupátion of the Leased Premises, 'Or rentals or sales therefrom or activity conducted therein, such franchises as may be appurtenant to the use or occupation of the Leased Premises, this transaction or any document to which Tenant is a party creating or transferring any right, title or interest or estate in the Leased Premises (all of the foregoing, together with any and all penalties and/or interest thereon, being hereinafter sometimes collectively referred to as "Impositions", and any of the same being hereinafter sometimes referred to as an "Imposition"). herein contained shall require Tenant to Nothing pay income taxes assessed against Landlord, or any capital·1evy, corporation franchise, excess profi