THIRD MODIFICATION OF SUBLEASE
Exhibit 10.1
THIRD MODIFICATION OF SUBLEASE
THIRD MODIFICATION OF SUBLEASE made as of July 26, 2011, by and between EMPIRE STATE BUILDING ASSOCIATES L.L.C., a New York limited liability company having its office at One Grand Central Place, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called “Sublessor”); and EMPIRE STATE BUILDING COMPANY L.L.C., a New York limited liability company having its office at One Grand Central Place, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called “Sublessee”).
W I T N E S S E T H:
Sublessor is the current sublessor and Sublessee is the current sublessee under that certain sublease described on Schedule A hereto (the foregoing being hereinafter collectively called the “Sublease”) relating to certain real estate described on Schedule B.
Sublessor has negotiated the terms of a loan of up to two hundred thirty five million dollars ($235,000,000) (of which $159,000,000 is being funded on or about the date hereof) with HSBC Bank USA, N.A., as Agent (“Agent”) for the lenders (“Lenders”) party to a certain loan agreement, dated July 26, 2011, among Empire State Land Associates L.L.C., Sublessor, Agent and Lenders (the “Loan Agreement”) to provide, inter alia, funds with which to (x) refinance the existing two fee mortgages encumbering Lessor’s fee simple estate in the Demised Premises and Sublessor’s leasehold estate under the Lease and (y) pay for the costs of ongoing capital improvement programs for the Demised Premises.
NOW, THEREFORE, in consideration of the sum of ten ($10.00) dollars, the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be bound, hereby agree as follows:
1. Terms used herein and not otherwise defined herein have the meanings attributed to them in the Sublease.
2. Subdivision (1)(g) of Section 2.01 of the Sublease is hereby deleted in its entirety and the following provision shall be substituted therefor:
“(g) Notwithstanding anything herein set forth to the contrary, the basic rent payable by Sublessee shall be increased by a sum equal to the annual Payment Obligation (excluding any principal payable upon maturity) on that portion of the outstanding principal balance in excess of sixty million five hundred thousand dollars ($60,500,000) of Notes issued pursuant to the Loan Agreement (or any replacement note hereinafter referred to) made by Lessor and Sublessor to the order of one or more of the Lenders (hereinafter collectively called, whether one or more, the “Mortgage Note”) or under any replacement promissory note of such Mortgage Note or an additional promissory note made by Lessor and/or Sublessor in connection with the refinancing of the indebtedness evidenced by such Mortgage Note. For purposes of this paragraph, the term “Payment Obligation” shall mean the annual debt service payable on the Mortgage Note, irrespective of any increase in such monthly amount due to any increase in the principal amount thereof as described in the next sentence or rate of interest payable with respect thereto or as a result of the incorporation of a principal amortization component or other changes in the monthly installment of debt service (whether arising by reason of a floating rate index,
contractual provisions for non-compliance, or other circumstances). The principal amount of any proximate or remote refinancing of the Mortgage Note upon which rental under this paragraph (g) is computed shall not exceed the sum of the maximum principal amount of indebtedness to which Sublessee shall have consented plus the reasonable costs of refinancing (including, without limitation, origination fees, legal fees, brokerage commissions, recording taxes, costs of appraisals and other customary costs associated with commercial mortgage borrowings). The amount of any such increase in rental pursuant to this paragraph (g) shall be determined by Sublessor in accordance with the terms hereof and shall be payable on the first day of each month following notice thereof to Sublessee, provided that any such increase shall be retroactive to the first day that interest shall accrue under such Mortgage Note or replacement or additional note.
If the mortgage lien securing the Mortgage Note is foreclosed and Sublessor’s leasehold estate is conveyed pursuant to a sale in such foreclosure proceeding to the holder of the Mortgage Note or its designee or if such leasehold estate is conveyed to such a party by an assignment in lieu of foreclosure, the basic rent increase payable under this paragraph (g) (the “Increase”) shall, upon such sale or assignment, become, at the election of Sublessee as of the date of such sale or assignment, either (i) the annual amount of the non-default fixed or floating rate interest then in effect under the Mortgage Note, which Increase shall be payable for the remaining Sublease term, or (ii) the monthly installments required to self-amortize the principal balance then outstanding over a 25 year period at the non-default fixed or floating rate then in effect under the Mortgage Note, which Increase shall be payable under the Mortgage Note until such principal balance has been fully amortized.”
3. Sublessee consents, as of the date of this Third Modification of Sublease, to draws under the Mortgage Note (as defined in Subdivision (1)(g) of Section 2.01 as set forth in Section 2 of this Third Modification of Sublease) of up to one hundred fifty nine million dollars ($159,000,000). Nothing herein shall affect the terms of that certain Confirmation of Subordination made by Sublessee in favor of Agent delivered in accordance with the Loan Agreement.
4. Sublessee confirms that pursuant to the Sublease, it is responsible for (i) paying all real estate taxes and similar impositions levied against the Demised Premises; (ii) maintaining, at its cost and expense, the Demised Premises in good condition and repair; (iii) insuring the Demised Premises and paying all premiums with respect to the insurance; (iv) complying with laws and regulations; (v) keeping the Demised Premises free of mechanics liens and code violations applicable to the use and occupancy of the Demised Premises; and (vi) performing the acts that would typically be the subject of protective advances by an institutional lender either to cure a default or to preserve the lien of its mortgage and the value of its security. Sublessee acknowledges that (i) it has received a copy of the Loan Agreement; (ii) it is a party to certain Loan Documents and (iii) it shall abide by its obligations thereunder. Nothing herein shall constitute an acknowledgement by Sublessee that is obligated to pay the Debt pursuant to the Loan Agreement.
5. Except as herein modified, the Sublease shall be and remain in full force and effect, and the parties hereby ratify and confirm all of the other terms, covenants and conditions thereof.
6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
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| Sublessor: | ||||
| EMPIRE STATE BUILDING ASSOCIATES L.L.C., a New York limited liability company | ||||
| By: |
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Member | ||||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Member | ||||
| By: |
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇. | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Member | ||||
| Sublessee: | ||||
| EMPIRE STATE BUILDING COMPANY L.L.C., a New York limited liability company | ||||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Authorized Signatory | ||||
| CONSENTED TO: | ||||||
| EMPIRE STATE LAND ASSOCIATES L.L.C., a New York limited liability company |
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| By: |
Empire State Building Associates L.L.C., its Sole Member |
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| By: |
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
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| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Member |
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| By: |
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Member |
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| By: |
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇. |
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| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Member |
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| STATE OF NEW YORK |
) | |
| ) ss. | ||
| COUNTY OF NEW YORK |
) |
On the 6th day of July in the year 2011 before me, the undersigned, a Notary Public in and said State, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacities, and that by his signature on the instrument, the individuals, or the persons upon behalf of which the individual acted, executed the instrument.
| /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇ |
| Notary Public |
| STATE OF NEW YORK |
) | |
| ) ss. | ||
| COUNTY OF NEW YORK |
) |
On the 6th day of July in the year 2011 before me, the undersigned, a Notary Public in and said State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacities, and that by his signature on the instrument, the individuals, or the persons upon behalf of which the individual acted, executed the instrument.
| /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇ |
| Notary Public |
| STATE OF NEW YORK |
) | |
| ) ss. | ||
| COUNTY OF NEW YORK |
) |
On the 29th day of June, in the year 2011, before me, the undersigned, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the persons upon behalf of which the individual acted, executed the instrument.
| /s/ ▇▇▇▇ H Love |
| Notary Public |
SCHEDULE A
SUBLEASE
That Certain Agreement of Lease dated 12/27/61 and recorded 12/27/1961 in Liber 5173 Cp. 155 made by EMPIRE STATE BUILDING ASSOCIATES, as sub-landlord, to ▇▇▇▇▇▇▇▇ ▇. WIEN, ▇▇▇▇▇ ▇. HELMSLEY, ▇▇▇▇▇▇ ▇▇▇▇▇▇ REALTY CORPORATION and PAREMPCO INC., Joint Venturers, associated under the name of EMPIRE STATE BUILDING COMPANY, as sub-tenant, which lease is affected by the following instruments:
(1) Assignment of sublease from PAREMPCO, INC. to ▇▇▇▇▇▇▇▇ ▇. WIEN and ▇▇▇▇▇ ▇. HELMSLEY, dated as of 2/1/1963, recorded on 7/10/1963 in Liber 5239 Cp. 122;
(2) Assumption of Sublease from ▇▇▇▇▇▇▇▇ ▇. WIEN to WICO TRADING CORPORATION dated as of 6/30/1964 and recorded on 7/22/1964 in Liber 5287 Cp. 238;
(3) First Modification of Sublease between EMPIRE STATE BUILDING ASSOCIATES, as sub-landlord and ▇▇▇▇▇▇▇▇ ▇. WIEN, ▇▇▇▇▇ ▇. HELMSLEY, WICO TRADING CORPORATION and ▇▇▇▇▇▇ ▇▇▇▇▇▇ REALTY CORPORATION, Joint Venturers, associated under the name of EMPIRE STATE BUILDING COMPANY, as sub-tenants (with consent from THE PRUDENTIAL INSURANCE COMPANY OF AMERICA) dated 2/15/1965, recorded 2/15/1965 in Liber 5315 Cp. 1;
(4) Assignment of Disbursement, Right made by ▇▇▇▇▇▇▇▇ ▇. WIEN, ▇▇▇▇▇ ▇. HELMSLEY, WICO TRADING CORPORATION and ▇▇▇▇▇▇ ▇▇▇▇▇▇ REALTY CORPORATION, Joint Venturers, associated under the name of EMPIRE STATE BUILDING ASSOCIATES to ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK dated 2/15/1965 and recorded 2/15/1965 in Liber 5315 Cp . 23;
(5) Assignment of Interest in Sublease from ▇▇▇▇▇▇▇▇ ▇. WIEN to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee under a certain Trust Agreement dated 12/12/1967 for the benefit of COLUMBIA UNIVERSITY, dated as of 12/31/1967 and recorded on 4/1/1971 in Reel 200 Page 1123;
(6) Assignment of Interest in Sublease from ▇▇▇▇▇▇ ▇▇▇▇▇▇ REALTY CORPORATION to ▇▇▇▇▇▇ ▇▇▇▇▇▇, dated as of 12/31/1968 and recorded on 4/1/1971 in Reel 200 Page 1126;
(7) Assignment of Interest in Sublease from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee under a certain Trust Agreement dated 12/12/1967 for the benefit of COLUMBIA UNIVERSITY to ▇▇▇▇▇▇▇▇ ▇. WIEN, dated as of 1/1/1970, recorded 4/1/1971 in Reel 200 Page 1130;
(8) Assignment of Interest in Sublease from SAMFORD ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. WIEN, as Executors of the Last Will and Testament of ▇▇▇▇▇▇ ▇▇▇▇▇▇, deceased to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, dated 6/25/1970, recorded on 4/1/1971 in Reel 200 Page 1133;
(9) Assignment of Sublease from WICO TRADING CORPORATION to ▇▇▇▇▇ ▇. HELMSLEY, dated as of 8/2/1969, recorded 4/1/1971 in Reel 200 Page 1496;
(10) Assignment and Assumption of the Sublease from ▇▇▇▇▇▇▇▇ ▇. WIEN, ▇▇▇▇▇ ▇. HELMSLEY and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, Joint Venturers associated under the name of EMPIRE STATE BUILDING COMPANY to EMPIRE STATE BUILDING COMPANY, dated as of 4/2/1971, recorded on 4/8/1971 in Reel 201 Page 556;
(11) Certificate of Conversion of EMPIRE STATE BUILDING COMPANY to EMPIRE STATE BUILDING COMPANY LLC dated 12/17/2001 and filed 12/17/2001 in the ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇; and
(12) Second Modification of Sublease, dated February 25, 2009, between EMPIRE STATE BUILDING ASSOCIATES L.L.C. and EMPIRE STATE BUILDING COMPANY L.L.C., which was not recorded.
SCHEDULE B
PROPERTY
ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ with the westerly side of Fifth Avenue;
THENCE Southerly along the westerly side of Fifth Avenue, 197 feet 6 inches to the northerly side of West 33rd Street;
THENCE Westerly along the northerly side of West 33rd Street, 500 feet;
THENCE Northerly and parallel with the westerly side of Fifth Avenue, 98 feet 9 inches to the middle line of the block;
THENCE Easterly and parallel with the northerly side of West 33rd Street, 75 feet;
THENCE again Northerly and parallel with the westerly side of Fifth Avenue and part of the distance through a party wall, 98 feet 9 inches to the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Easterly along the southerly side of West 34th Street, 425 feet to the corner aforesaid, the point or place of BEGINNING.