EXHIBIT 10.43
THIRD AMENDMENT TO
CONTRACT OF SALE AND LEASE AGREEMENT
XXXXXXXXX SQUARE LLC
-SELLER-
OLP BROOKLYN PAVILION LLC
- PURCHASER -
XXXXXXXXX SQUARE CINEMA LLC
- TENANT -
AS OF NOVEMBER 1, 2003
PAVILION THEATRE
000 XXXXXXXX XXXX XXXX
XXXXXXXX, XXX XXXX
THIRD AMENDMENT TO CONTRACT OF SALE AND TO LEASE AGREEMENT
This THIRD AMENDMENT TO CONTRACT OF SALE AND LEASE AGREEMENT (this
"Amendment") is made and entered into as of the 1st day of November, 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 5, 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");
WHEREAS, Seller, Tenant and Purchaser entered into that certain Second
Amendment to Contract of Sale and Lease Agreement dated as of April 2, 2003 (the
"Second Amendment"; the Original Contract of Sale and the Original Lease as
amended by the First Amendment and the Second 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 Master Lease
and the Contract of Sale 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. DATES. The 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 March 31, 2004.
2. ELEVATOR. Pursuant to Paragraph 4A(ii) of the Second Amendment, $75,000
of the remaining $125,000 Improvement Holdback is being held pending the
installation of the Elevator. Tenant has indicated to Landlord that Tenant and
its architects do not believe that the Elevator is practical to install at the
Premises and nor would it materially aid in Tenant's business and does not
affect the legality or value of the Premises. Landlord therefore hereby agrees
to waive the
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LEASE YEAR MINIMUM ANNUAL MONTHLY RENT
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Lease Years 1 & 2 $1,140,000.00 $95,000.00
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Lease Year 3 $1,193,500.00 $99,458.33
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Lease Year 4 $1,252,712.50 $104,392.71
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Lease Year 5 $1,282,655.31 $106,887.94
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Lease Year 6 $1,313,346.70 $109,445.56
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Lease Year 7 $1,289,805.36 $107,483.78
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Lease Year 8 $1,322,050.50 $110,170.88
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Lease Year 9 $1,355,101.76 $112,925.15
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Lease Year 10 $1,388,979.30 $115,748.28
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Lease Year 11 $1,423,703.79 $118,641.98
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Lease Year 12 $1,459,296.38 $121,608.03
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Lease Year 13 $1,495,778.79 $124,648.23
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Lease Year 14 $1,533,173.26 $127,764.44
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Lease Year 15 $1,571,502.59 $130,958.55
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Lease Year 16 $1,610,790.16 $134,232.51
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Lease Year 17 $1,651,059.91 $137,588.33
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Lease Year 18 $1,692,336.41 $141,028.03
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Lease Year 19 $1,734,644.82 $144,553.74
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Lease Year 20 $1,778,010.94 $148,167.58
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In addition, Tenant shall simultaneously herewith pay to Landlord the
Impositions payments due on October 1, 2003 and November 1, 2003, respectively,
in the total amount of $13,824.36.
4. MISCELLANEOUS. A. Except as modified hereby, the Contract of Sale and
the Master Lease 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 or the Master Lease 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 Third Amendment shall constitute an Event
of Default under the Master Lease. As to Tenant, 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.
D. Tenant hereby acknowledges that as of the date hereof Landlord is not in
default under any obligation it may have under the Master Lease, as amended
hereby, and that Purchaser is not in default under any obligation it may have
remaining under the Contract of Sale, as amended hereby, and Tenant hereby
waives any claim it may have through the date hereof against Landlord (and
Purchaser) and its employees, officers, directors, trustees, members, partners,
shareholders and representatives.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Third 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: Managing Member
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OLP BROOKLYN PAVILION LLC, as Purchaser
by: OLP-MTC Holdings, LLC, its sole member
by: OLP Movies LLC, its 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: Managing 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
