Preview
iD: YORK OUN PK 06 DM INDEX NO. 451549/2023
NYSCEF BOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
BUDIMIR EXHIBIT 45F
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
LEASE EXTENSI MO) IFICATION A EMENT
‘This Lease Extension and Modification Agreement (this “Agreement”) made as of
this Ist day of November, 2016, by and between HOLLISWOOD CARE REALTY CO., LLC, a
New York limited liability company with an address at 143-10 20" Avenue, Whitestone, New
York 11357 (hereinafter referred to as “Lessor”) and HOLLISWOOD CARE CENTER, INC., a
New York corporation, with offices and principal place of business located at 195-44 Woodhull
Avenue, Hollis, New York 11432 (hereinafter referred to as “Lessee”).
WITNESSETH:
WHEREAS, on February !5, 1973, a predecessor in interest to Lessor entered
into a lease of the demised premises located at 195-44 Woodhull Avenue, Hollis, New York
31432 (hereinafter referred to as “Demised Premises”) and certain personalty located thereon
(the “Personal Property”) with Milton Goldworth, Louis Gold and Martin Kabn, the Lessee’s
predecessors-in-interest, which lease was thereafter amended on June I, 1973, on October 30,
1$73, on February 8, 1980, and on July 7, 1992 (said lease as so amended being referred to
tow as the “Lease”); and
WHEREAS, the parties wish to exiend the foregoing Lease and modify, amend
and supplement certain of its provisions.
NOW THEREFORE, the parties herein for themselves, their heirs, distributes,
executors, administrators, legal representatives, successors and assigns hereby agree as follows:
nae ae ~~ -——.
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
I All of the terms. conditions, definitions and provisions contained in the
Lease are hereby incorporated herein and made a part hereof as though the same were more fully
set forth at length herein and the parties agree to be bound by same, except as modified, amended
or suppiemented by this Agreement. Any conflict between the provisions of this Agreement and
the Lease heretofore entered into between the parties shall be resolved in favor of this
Agreement.
2. For all purposes of Article lif - TERM OF LEASE, the original term of
the Lease shal! expire at midnight or. October 31, 2016, except in the event the Cutside Closing
Date (the “Outside Closing Date”), as defined in the Agreement for the Sale of Real Property,
dated November 1, 2010, between Lessor and Hollis Real Estate Co., LLC (the “Purchase
Agreement”), is extended pursuant to Section 1C(e) thereof, the original term of the Lease shall
expire ai midnight on October 31, 2050 (the “Extension Period”). Notwithstanding the foregoing,
Lessor may, in its sole discretion, terminate the Lease at any time on or after October 31, 2020
4
on notice to the Tenant.
2 Tn lieu of the net rect otherwise due under Article [V(A)(ii) of the Lease,
the annual net rept payable by Lessee to Lessor for the Extension Period shall be as follows:
a For the period commencing November 1, 2010 and ending on October 31,
2011: $1,500,000 per annum;
b For the period commencing November 1, 2011 and ending on October 31,
2012: $1,500,000 per annum;
a pee ee
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
c. For the period commencing November 1, 2012 and ending on Cctober 31,
2013: $1,500,000;
a. For the period commencing November 1, 2013 and ending on October 31,
2014: $2,000,000;
€. For the period commencing November |, 2014 and ending on October 31,
2015: $2,500,000; and
£ ¥or the period commencing November I, 2015 and ending on October 31,
2016: $3,000,000; and if the Outside Closing Date is extended pursuant to Section 10(e) of the
Purchase Agreement:
8 For each year of the period commencing November 1, 2016 and ending on
October 31, 2026: $3,250,000 per year; and
h For each year of the period commencing November 1, 2026 and ending on
October 31. 2036: $3,750,000 per year; and
i For each year of the period commencing November |, 2036 and ending on
October 31, 2046: $4,250,000 per year; and
5 Fox each year of the period commencing November 1, 2046 and ending on
October 31, 2050: $4,750,500 per year.
All such net rent shall be payable in consecutive equal monthly installments without deduction or
setoff whatsoever on the first day of each caiendar month during the Extension Period.
Notwithstending the foregoing, if the Closing, as defined in the Furchase Agreement takes place
-— ---— a a ~ a.
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
en or before April 30, 2013, Lessor hereby agrees to pay to Lessee six consecutive equal
monthly installments of 83,333.33 beginning on May I, 2013 and ending on October 1, 2013, as
a rebate of rent paid to Lessor pursuant to the terms of the Lease. If such Closing takes place
after April 30, 2013 and before October 31, 2013, Lessor hereby agrees to pay to Lessee (A) on
the Closing Date a pro rata portion of $83,333.33 for the portion of the calendar month in which
the Closing Date takes place, if applicable, then remaining after the Closing Date, and (B) the
sum of $83,333.33 on the first day of each full calendar month after the Closing Date through
and including November 1, 2013. Any payment made pursuant to the preceding sentence shall
also be made es a rebate of rent paid to Lessor pursuant to the terms of the Lease. The Parties
hereby agree and acknowledge that if the Closing takes place after October 31, 2013, Lessee
shall not be entitled to any reduction in rent pursuant to this Section 3.
4 No part of any net rent payment made by the Lessee pursuant to the
provisions of Paragraph 3 above shall be applicable to Personal Property. All rent heretofore
received by the fessor and allocated to Personal Property shall constitute the entire net rent
applicable to the Personal Property for the term of the Lease, including the Extension Period, if
any.
5. For the term of the Lease, Lessee shall submit to Lessor, on an annual
basis, its audited financial statements as soon as practicable, but in no event later than 180 days
after the end of its fiscal year.
6. Upon expiration or termination of the Lease as extended by this
Agreement, the Lessee hereby consents to the entry and execution (without any stay) of an
immediate judgment of eviction, and has executed on the date hereof a consent to judgment of
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
eviction, attached as Exhibit A hereto, to evidence such consent relating to the expiration of the
term of the Lease or the termination of the Lease pursuant to Section 2 above. The Lessee
further agrees to cooperate with Lessor to cause an orderly transfer of the nursing home business
operated in the Demised Premises (the “Business”) tc a new established operator designated by
the Lessor, including without limitation the Demised Premises and all fumiture, fixtures and
equipment located thereon and used in connection with the aperation of the Business. To the
extent no new established operator of the Business designated by the Lessor is in place at the
time of the expiration or termination of the Lease as extended by this Agreement, the Lessee
hereby consents to the appointment of a recciver to operate the Business at the Demised
Premises until a new operator designated by the Lessor is approved by the appropriate authorities
to operate the Business. The Lessee shel! not oppose or impede any receivership application
process or ihe establishment process of any new operator designated by the Lessor. Tn
furtherance of the foregoing, Lessee shall not take any action that is inconsistent with the
Lessor’s rights under this Section 6, including any action that would impede the ability of a new
operator designated by the Lessor to receive all necessary approvals to operate the Business, or
anv effort to transfer the Lessce’s establishment approva! for the Business tc another location.
7. Article VI of the Lease is hereby amended by deleting the last sentence cf
such Article VI and adding to the end thereof the following: “Notwithstanding any provision of
this Lease to the contrary, Lessee shal! not during the term of this Lease take any action to
reduce the number of certified skilled nursing facility beds at the Demised Fremises to less than
314.”
ee pete ba ee —-—-- i...
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
8 Section (A) of Article VI of the Lease is hereby amended by adding to the
end thereof the following: “Without limiting the foregoing, in no event will the buildings and
Personal Property on the Demised Premises be insured by the Lessee in an amount less than
$28,098,000.”
9. Section (B)(i) of Article VI of the Lease is hereby amended to provide
that the general public liability insurance maintained by the Lessee shall have a limit of not less
than one million ($1,000,000) in respect of bodily injury or death to eny one person, and a limit
of not less than three million dollars ($3,000,000) with respect to any one accident, and a limit of
not less than two hundred fifty thousand dollars ($250,000) for property damage.
10. Article XX(B) of the Lease, as amended on July 7, 1992, is hereby deleted
and replaced with the following: Lessee may sublet up to 5% of the Demised Premises for
purposes ancillary to the permitted use of the Demised Premises as set forth in Article VI of the
Lease, but only with the prior written consent of the Lessor, which may not be unreasonably
conditioned, withheld or delayed. Lessee may sublet all of the Demised Fremises to an entity
that has been approved and licensed by the New York State Department of Health to operate the
Business, but only with the prior written consent of the Lessor, which may not be unreasonably
conditioned withheld or delayed. Lessee may not assign this lease without the written consent of
the Lessor, which consent may be withheld in Lessor’s absolute discretion.”
li. Article XXI(A) cf the Lease is hereby amended to add as subsection (4)
the following additional event of default: “(4) If the New York State Department of Health has
indicated that the Lessee is no longer the established operator or no longer qualified as the
established cperator, of the skilled nursing facility operated on the Demised Premises.”
cee ~~ ae ee —-- —
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
12. Lessee hereby represents, warrants and covenants that (a) the terms and
provisions set forth in this Agreement shall modify and supersede all inconsistent terms set forth
in the Lease and (b) except as expressly modified and superseded by this Agreement, the terms
and provisions of the Lease are ratified and confirmed and shall continue in full force and effect
including, without limitation, the obligations of Tenant with respect to repairs and maintenance
as set forth at length in Article IX of the Lease. Lessee agrees that the Lease as amended hereby,
shall continue to be legal, valid, binding and enforceable in accordance with its terms.
13. Lessee acknowledges and agrees that, as of the date hereof, the Lessee is
not aware of any claims, defenses, set-offs, rights cf recoupment, counterclaims, demands,
causes of action or rights of any kind or nature against Lessor or any of its affiliates, officers or
agents, whether at law, in equity or otherwise and whether direct or indirect, matured or
unmatured, accrued or contingent or non-contingent, arising out of, in connection with or on
account of the Lease.
14. Lessee agrees and acknowledges that Lessee has no further rights or
options under the Lease.
15. This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall collectively constitute but one and the same
instrument. Ali of such counterparts shall constitute one and the same agreement and shall
become effective when one or more counterparts 2re signed by each party and delivered to the
other party, including by facsimile or electronic mail, it being understood that all parties need not
sign the same counterpart.
nna ee won — —_— a ote
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
16. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, legal representatives, permitted successors and permitted
assigns.
47. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York (other than Section 5-1401 of the General Cbligations Law)
and any applicable law of the United States of America without regard to it principles of
conflicts of laws.
18. No modification, amendment, extension, discharge, termination or waiver
of any provision of this Agreement or of the Lease, nor consent to any departure by Lessee
therefrom, shall in any event be effective unless the same shall be in a writing signed by the
party against whom enforcement is sought, and then such waiver or consent shall be effective
only in the specific instance, and for the purpose, for which given.
19. Execution and delivery of this instrument bas been duly authorized by
Lessor and Lessee.
{SIGNATURE PAGES FOLLOW]
wee a — ee —-—. a eee — —.-—-—___--- 8
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF 06/28/2023
. ECU: on the &. ke yeurth sun
x Cr RENT
Be i at & Nev
aN arte Ry fe
et ee ein
sr sn eames ee ant ante ee —- a
INDEX NO. 451549/2023
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023
os. aldnugh ave secesgortiy an se doce de Lye orien
mm ot Hu Ni
wae ee Avy
semen iene pe oe
is
ee eae i ee 40... -
Preview
iD: YORK OUN PK 06 DM INDEX NO. 451549/2023 NYSCEF BOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 BUDIMIR EXHIBIT 45F INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 LEASE EXTENSI MO) IFICATION A EMENT ‘This Lease Extension and Modification Agreement (this “Agreement”) made as of this Ist day of November, 2016, by and between HOLLISWOOD CARE REALTY CO., LLC, a New York limited liability company with an address at 143-10 20" Avenue, Whitestone, New York 11357 (hereinafter referred to as “Lessor”) and HOLLISWOOD CARE CENTER, INC., a New York corporation, with offices and principal place of business located at 195-44 Woodhull Avenue, Hollis, New York 11432 (hereinafter referred to as “Lessee”). WITNESSETH: WHEREAS, on February !5, 1973, a predecessor in interest to Lessor entered into a lease of the demised premises located at 195-44 Woodhull Avenue, Hollis, New York 31432 (hereinafter referred to as “Demised Premises”) and certain personalty located thereon (the “Personal Property”) with Milton Goldworth, Louis Gold and Martin Kabn, the Lessee’s predecessors-in-interest, which lease was thereafter amended on June I, 1973, on October 30, 1$73, on February 8, 1980, and on July 7, 1992 (said lease as so amended being referred to tow as the “Lease”); and WHEREAS, the parties wish to exiend the foregoing Lease and modify, amend and supplement certain of its provisions. NOW THEREFORE, the parties herein for themselves, their heirs, distributes, executors, administrators, legal representatives, successors and assigns hereby agree as follows: nae ae ~~ -——. INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 I All of the terms. conditions, definitions and provisions contained in the Lease are hereby incorporated herein and made a part hereof as though the same were more fully set forth at length herein and the parties agree to be bound by same, except as modified, amended or suppiemented by this Agreement. Any conflict between the provisions of this Agreement and the Lease heretofore entered into between the parties shall be resolved in favor of this Agreement. 2. For all purposes of Article lif - TERM OF LEASE, the original term of the Lease shal! expire at midnight or. October 31, 2016, except in the event the Cutside Closing Date (the “Outside Closing Date”), as defined in the Agreement for the Sale of Real Property, dated November 1, 2010, between Lessor and Hollis Real Estate Co., LLC (the “Purchase Agreement”), is extended pursuant to Section 1C(e) thereof, the original term of the Lease shall expire ai midnight on October 31, 2050 (the “Extension Period”). Notwithstanding the foregoing, Lessor may, in its sole discretion, terminate the Lease at any time on or after October 31, 2020 4 on notice to the Tenant. 2 Tn lieu of the net rect otherwise due under Article [V(A)(ii) of the Lease, the annual net rept payable by Lessee to Lessor for the Extension Period shall be as follows: a For the period commencing November 1, 2010 and ending on October 31, 2011: $1,500,000 per annum; b For the period commencing November 1, 2011 and ending on October 31, 2012: $1,500,000 per annum; a pee ee INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 c. For the period commencing November 1, 2012 and ending on Cctober 31, 2013: $1,500,000; a. For the period commencing November 1, 2013 and ending on October 31, 2014: $2,000,000; €. For the period commencing November |, 2014 and ending on October 31, 2015: $2,500,000; and £ ¥or the period commencing November I, 2015 and ending on October 31, 2016: $3,000,000; and if the Outside Closing Date is extended pursuant to Section 10(e) of the Purchase Agreement: 8 For each year of the period commencing November 1, 2016 and ending on October 31, 2026: $3,250,000 per year; and h For each year of the period commencing November 1, 2026 and ending on October 31. 2036: $3,750,000 per year; and i For each year of the period commencing November |, 2036 and ending on October 31, 2046: $4,250,000 per year; and 5 Fox each year of the period commencing November 1, 2046 and ending on October 31, 2050: $4,750,500 per year. All such net rent shall be payable in consecutive equal monthly installments without deduction or setoff whatsoever on the first day of each caiendar month during the Extension Period. Notwithstending the foregoing, if the Closing, as defined in the Furchase Agreement takes place -— ---— a a ~ a. INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 en or before April 30, 2013, Lessor hereby agrees to pay to Lessee six consecutive equal monthly installments of 83,333.33 beginning on May I, 2013 and ending on October 1, 2013, as a rebate of rent paid to Lessor pursuant to the terms of the Lease. If such Closing takes place after April 30, 2013 and before October 31, 2013, Lessor hereby agrees to pay to Lessee (A) on the Closing Date a pro rata portion of $83,333.33 for the portion of the calendar month in which the Closing Date takes place, if applicable, then remaining after the Closing Date, and (B) the sum of $83,333.33 on the first day of each full calendar month after the Closing Date through and including November 1, 2013. Any payment made pursuant to the preceding sentence shall also be made es a rebate of rent paid to Lessor pursuant to the terms of the Lease. The Parties hereby agree and acknowledge that if the Closing takes place after October 31, 2013, Lessee shall not be entitled to any reduction in rent pursuant to this Section 3. 4 No part of any net rent payment made by the Lessee pursuant to the provisions of Paragraph 3 above shall be applicable to Personal Property. All rent heretofore received by the fessor and allocated to Personal Property shall constitute the entire net rent applicable to the Personal Property for the term of the Lease, including the Extension Period, if any. 5. For the term of the Lease, Lessee shall submit to Lessor, on an annual basis, its audited financial statements as soon as practicable, but in no event later than 180 days after the end of its fiscal year. 6. Upon expiration or termination of the Lease as extended by this Agreement, the Lessee hereby consents to the entry and execution (without any stay) of an immediate judgment of eviction, and has executed on the date hereof a consent to judgment of INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 eviction, attached as Exhibit A hereto, to evidence such consent relating to the expiration of the term of the Lease or the termination of the Lease pursuant to Section 2 above. The Lessee further agrees to cooperate with Lessor to cause an orderly transfer of the nursing home business operated in the Demised Premises (the “Business”) tc a new established operator designated by the Lessor, including without limitation the Demised Premises and all fumiture, fixtures and equipment located thereon and used in connection with the aperation of the Business. To the extent no new established operator of the Business designated by the Lessor is in place at the time of the expiration or termination of the Lease as extended by this Agreement, the Lessee hereby consents to the appointment of a recciver to operate the Business at the Demised Premises until a new operator designated by the Lessor is approved by the appropriate authorities to operate the Business. The Lessee shel! not oppose or impede any receivership application process or ihe establishment process of any new operator designated by the Lessor. Tn furtherance of the foregoing, Lessee shall not take any action that is inconsistent with the Lessor’s rights under this Section 6, including any action that would impede the ability of a new operator designated by the Lessor to receive all necessary approvals to operate the Business, or anv effort to transfer the Lessce’s establishment approva! for the Business tc another location. 7. Article VI of the Lease is hereby amended by deleting the last sentence cf such Article VI and adding to the end thereof the following: “Notwithstanding any provision of this Lease to the contrary, Lessee shal! not during the term of this Lease take any action to reduce the number of certified skilled nursing facility beds at the Demised Fremises to less than 314.” ee pete ba ee —-—-- i... INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 8 Section (A) of Article VI of the Lease is hereby amended by adding to the end thereof the following: “Without limiting the foregoing, in no event will the buildings and Personal Property on the Demised Premises be insured by the Lessee in an amount less than $28,098,000.” 9. Section (B)(i) of Article VI of the Lease is hereby amended to provide that the general public liability insurance maintained by the Lessee shall have a limit of not less than one million ($1,000,000) in respect of bodily injury or death to eny one person, and a limit of not less than three million dollars ($3,000,000) with respect to any one accident, and a limit of not less than two hundred fifty thousand dollars ($250,000) for property damage. 10. Article XX(B) of the Lease, as amended on July 7, 1992, is hereby deleted and replaced with the following: Lessee may sublet up to 5% of the Demised Premises for purposes ancillary to the permitted use of the Demised Premises as set forth in Article VI of the Lease, but only with the prior written consent of the Lessor, which may not be unreasonably conditioned, withheld or delayed. Lessee may sublet all of the Demised Fremises to an entity that has been approved and licensed by the New York State Department of Health to operate the Business, but only with the prior written consent of the Lessor, which may not be unreasonably conditioned withheld or delayed. Lessee may not assign this lease without the written consent of the Lessor, which consent may be withheld in Lessor’s absolute discretion.” li. Article XXI(A) cf the Lease is hereby amended to add as subsection (4) the following additional event of default: “(4) If the New York State Department of Health has indicated that the Lessee is no longer the established operator or no longer qualified as the established cperator, of the skilled nursing facility operated on the Demised Premises.” cee ~~ ae ee —-- — INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 12. Lessee hereby represents, warrants and covenants that (a) the terms and provisions set forth in this Agreement shall modify and supersede all inconsistent terms set forth in the Lease and (b) except as expressly modified and superseded by this Agreement, the terms and provisions of the Lease are ratified and confirmed and shall continue in full force and effect including, without limitation, the obligations of Tenant with respect to repairs and maintenance as set forth at length in Article IX of the Lease. Lessee agrees that the Lease as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with its terms. 13. Lessee acknowledges and agrees that, as of the date hereof, the Lessee is not aware of any claims, defenses, set-offs, rights cf recoupment, counterclaims, demands, causes of action or rights of any kind or nature against Lessor or any of its affiliates, officers or agents, whether at law, in equity or otherwise and whether direct or indirect, matured or unmatured, accrued or contingent or non-contingent, arising out of, in connection with or on account of the Lease. 14. Lessee agrees and acknowledges that Lessee has no further rights or options under the Lease. 15. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall collectively constitute but one and the same instrument. Ali of such counterparts shall constitute one and the same agreement and shall become effective when one or more counterparts 2re signed by each party and delivered to the other party, including by facsimile or electronic mail, it being understood that all parties need not sign the same counterpart. nna ee won — —_— a ote INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 16. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, permitted successors and permitted assigns. 47. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York (other than Section 5-1401 of the General Cbligations Law) and any applicable law of the United States of America without regard to it principles of conflicts of laws. 18. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement or of the Lease, nor consent to any departure by Lessee therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. 19. Execution and delivery of this instrument bas been duly authorized by Lessor and Lessee. {SIGNATURE PAGES FOLLOW] wee a — ee —-—. a eee — —.-—-—___--- 8 INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF 06/28/2023 . ECU: on the &. ke yeurth sun x Cr RENT Be i at & Nev aN arte Ry fe et ee ein sr sn eames ee ant ante ee —- a INDEX NO. 451549/2023 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 06/28/2023 os. aldnugh ave secesgortiy an se doce de Lye orien mm ot Hu Ni wae ee Avy semen iene pe oe is ee eae i ee 40... -