EX-10 9 ex1064.htm

EXHIBIT 10.65

 

AMENDMENT TO 59TH STREET REAL ESTATE RETENTION AGREEMENT

THIS AMENDMENT TO 59th STREET REAL ESTATE RETENTION AGREEMENT (this “Amendment”) is made as of the 1st day of January, 2007, by and among 731 RETAIL ONE LLC, a Delaware limited liability company, 731 RESTAURANT LLC, a Delaware limited liability company, 731 OFFICE ONE LLC, a Delaware limited liability company, and 731 OFFICE TWO LLC, a Delaware limited liability company, each having an office c/o Vornado Realty Trust, 888 Seventh Avenue, New York, New York 10019 (collectively, “Owner”), and VORNADO REALTY, L.P., a Delaware limited partnership, having an office at 210 Route 4 East, Paramus, New Jersey 07652 (“Vornado”).

R E C I T A L S

A.       Owner or Owner’s predecessors-in-interest and Vornado, as agent, have heretofore entered into that certain 59th Street Real Estate Retention Agreement, dated July 3, 2002, as amended by that certain Letter Agreement Relating to 59th Street Real Estate Retention Agreement by and between Owner and Vornado dated as of July 6, 2005 (the “59th Street Retention Agreement”).

B.    Whereas, Owner and Vornado desire to amend the 59th Street Retention Agreement as set forth below.

NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, Owner and Vornado hereby agree as follows:

1.     The following amendments to the 59th Street Retention Agreement shall be effective from and after the date hereof:

 

a.

Article II.C.1.(a) is hereby deleted and the following substituted therefor:

“When Owner disposes of an Asset, whether individually or as part of a package or as part of the disposition of Owner’s business or a portion thereof, or as part of a plan of reorganization, by sale, assignment, lease, sublet or otherwise to a third party, or by assignment of a leasehold to the landlord or by termination of a leasehold for which Owner receives consideration (any of the foregoing, an “Asset Transaction”); or if in lieu of a disposition of the Assets, one or more third parties acquires control of Owner by merger, outright purchase, or otherwise in one or multiple transactions (any of the foregoing, an “In Lieu Asset Transaction”); then, (i) if the Gross Proceeds from the Asset Transaction or In Lieu Asset Transaction, as the case may be, exceed $50,000,000, Owner shall pay an amount equal to one percent (1%) of the Gross Proceeds from the Asset

 

Transaction or In Lieu Asset Transaction, as the case may be, and (ii) if the Gross Proceeds from the Asset Transaction or In Lieu Asset Transaction, as the case may be, are equal to or less than $50,000,000, Owner shall pay an amount equal to three (3%) of the Gross Proceeds from the Asset Transaction or In Lieu Asset Transaction, as the case may be, except in the event of a lease or sublease, in which event Owner shall pay an amount equal to:

(i) three (3%) percent of the total base rent Gross Proceeds payable during the first ten (10) years of the term, plus

(ii) two (2%) percent of the total base rent Gross Proceeds payable during the eleventh (11th) through the twentieth (20th) years of the term, plus

(iii) one (1%) percent of the total base rent Gross Proceeds payable during the balance of the term, but in no event to exceed the thirtieth (30) year;

(In the event of a month-to-month tenancy, the fee shall be 50% of the first month’s base rental, payable in four (4) equal monthly installments, but only for so long as such tenancy shall continue. Additional fees shall only become earned and payable (i) upon a tenant’s exercise of Option(s) or Rights(s) of First Refusal, to Renew, Extend Lease or Occupy Additional Space or (ii) upon a month-to-month tenant entering into a new lease or sublease of an Asset.)

 

b.

Article II.C.1.(b) is hereby deleted and the following substituted therefor:

“Vornado’s fee will be paid in full simultaneously with the closing, sale, assignment or other consummation of the transaction. Notwithstanding the immediately preceding sentence, Vornado’s fees under this Agreement and interest accrued with respect to such fees will be payable in an aggregate amount not to exceed $4,000,000 in any calendar year (or such lesser amount as may be due Vornado hereunder), less any amounts paid to Vornado under that certain Real Estate Retention Agreement dated as of July 20, 1992, as amended, with respect to the same period. Interest shall accrue on the unpaid fees outstanding hereunder from time to time at the 1-year LIBOR rate plus 100 basis points, such rate to be determined annually as of the first day of January of each year. The fees and interest payable hereunder shall be paid in equal monthly installments (the “Installments”) until such fees and interest accrued thereon have been paid in full. Installments shall be

 

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applied first to interest accrued hereunder and then to reduction of the fees outstanding hereunder from time to time. Fees payable with respect to a sale, assignment or In Lieu Asset Transaction shall be paid first and Vornado shall not be entitled to receive any fees with respect to a lease or sublease to the extent the tenant is in default of its payment obligations thereunder, except as a result of a default by the Owner or a termination by Owner of the lease or sublease (other than a termination by the Owner resulting from the tenant’s monetary default).

 

c.

Article II.C.1.(c) is hereby deleted and the following substituted therefor:

“In the event that Owner leases or subleases an Asset and the transferee, or any agent, officer, employee, or shareholder of the transferee, acquires fee-simple title to such property within five years, (i) if the Gross Proceeds from the acquisition exceed $50,000,000, Owner shall pay an amount equal to one percent (1%) of the Gross Proceeds from the acquisition, and (ii) if the Gross Proceeds from the acquisition are equal to or less than $50,000,000, Owner shall pay an amount equal to three (3%) of the Gross Proceeds from the acquisition payable in the same manner as described above; provided, however, that there shall be a credit against such subsequent fee in the amount of fees previously paid relating to that portion of the lease or sublease term which is cancelled by reason of such sale. In no event shall such credit exceed the amount of the latter fee.

 

d.

Article II.C.1.(g) is hereby deleted and the following substituted therefor:

“ In the event that a party other than Vornado is a procuring broker who is entitled to a fee, in the event of a lease or sublease, the three-two-one (3-2-1) schedule set forth in paragraphs II.C.1(a)(i), (ii) and (iii) above shall be increased to four-three-two (4-3-2) and Vornado shall pay the fee of the procuring broker. With respect to any sale, assignment or In Lieu Asset Transaction, the fees payable by Owner shall not be increased, and Vornado shall pay any third party procuring broker’s fee out of Vornado’s fee payable pursuant to the 59th Street Retention Agreement, as amended hereby. For any given transaction, Owner shall be responsible for the payment of only one fee in the amounts set forth herein.”

2.     This Amendment may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument.

3.     All terms capitalized but not defined herein shall have the same meaning ascribed to such terms in the 59th Street Retention Agreement. The marginal headings and

 

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titles to the paragraphs of this Amendment are not a part of this Amendment and shall have no effect upon the construction or interpretation of any part hereof.

4.     This Amendment is incorporated into and made a part of the 59th Street Retention Agreement, and the 59th Street Retention Agreement and all terms, conditions and provisions of the 59th Street Retention Agreement are ratified and confirmed in all respects and is and shall continue to be in full force and effect as modified and amended hereby.

5.     This Amendment shall be governed by and construed in accordance with the laws of the State of New York.

6.     This Amendment constitutes the entire understanding of the parties with respect to the subject hereof and may not be amended except in a writing executed by the parties hereto.

7.     This Amendment shall be binding upon and inure to the benefit of the parties hereto, and their successors and permitted assigns.

 

 

[signature page follows]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written

OWNER:

731 RETAIL ONE LLC

 

By:

731 Commercial LLC

 

By:

731 Commercial Holding LLC

 

By:

Alexanders, Inc.

By:


/s/ Brian Kurtz

Name:

Brian Kurtz

Title:

Assistant Secretary

 

731 RESTAURANT LLC

 

By:


/s/ Brian Kurtz

Name:

Brian Kurtz

Title:

Assistant Secretary

 

731 OFFICE ONE LLC

 

By:


/s/ Brian Kurtz

Name:

Brian Kurtz

Title:

Assistant Secretary

 

731 OFFICE TWO LLC

 

By:


/s/ Brian Kurtz

Name:

Brian Kurtz

Title:

Assistant Secretary

 

 

VORNADO:

VORNADO REALTY, L.P.

 

By:


/s/ Joseph Macnow

Name:

Joseph Macnow

Title:

Executive Vice President
and Chief Financial Officer