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EXHIBIT 10.29
AGREEMENT OF SALE
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AGREEMENT OF SALE, made August 6, 1996, between KINGS CASTLE CATERERS, INC., c/o
DiConza, Xxxxxxx & DiCunto, LLP, 000 Xxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx,
("Seller"), and RATTLESNAKE OF BAY RIDGE, INC., 0 Xxxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxxxxx, ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Purchaser desires to acquire, and Seller desires to sell, certain
assets of the Seller hereinafter specified, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements hereafter set
forth, and other valuable consideration, the receipt and sufficiency of which
hereby is acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL. Seller agrees to sell, transfer and deliver to Purchaser,
and Purchaser agrees to purchase, upon the terms and conditions hereinafter set
forth, the following assets of Seller (collectively, the "Assets"):
(a) the equipment, furniture, fixtures and improvements located at Short
Ribs Restaurant & Bar, 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, more
particularly itemized in Exhibit B, annexed, and;
(b) a sub-lease of the prime lease dated the 1st day of December, 1995,
with rider dated February 1, 1996, between 0000 Xxxxx Xxxxxx Realty
Corp. , as Landlord, and Kings Castle Caterers, Inc., as Tenant, copies
of which are annexed hereto as Exhibit A (the "Lease" and "Sub-Lease").
The sale hereunder shall not include, and Seller shall retain, the name "Short
Ribs" and "Short Ribs Restaurant & Bar", all cash, securities, cash equivalents
and accounts receivable and all other assets, property and rights of Seller and
the business, including without limitation the property described in Exhibit C
hereto (the "Excluded Assets").
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2. PURCHASE PRICE. The purchase price to be paid by Purchaser is $465,000.00,
payable as follows:
(a) $46,500.00 upon execution of this agreement, by check subject to
collection. The nonpayment of said check shall give Seller the right to
declare this agreement null and void, in addition to pursuing all other
remedies against Purchaser on said check or as otherwise permitted by law.
Said check is payable to the order of the Escrow Agent hereinafter
identified, and the proceeds of said check shall be held in escrow as
hereinafter provided.
(b) $173,500.00 at the closing.
(c) $245,000.00 at the closing by the execution and delivery of a Promissory
Note by Purchaser to Seller in said amount. Said Promissory Note shall be
self-liquidating over a period of eighty (80) months and shall bear interest
at the rate of prime plus one (1%) percent as established by the Chase
Manhattan Bank and reported in the Wall Street Journal, adjusted monthly.
The Promissory Note shall be secured by a Security Agreement and UCC
Financing Statements creating a security interest in the assets of the
business to be established by Purchaser to operate a restaurant and bar
("Business") at the premises (the "Security Agreement).
The Promissory Note shall be guaranteed by the Rattlesnake Holding Company
Inc., 0 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxx. The guaranty shall be
delivered at Closing.
The purchase price is comprised of the following components:
Furniture, Fixtures & Equipment: $
Sub-Lease: $
The parties agree to use the foregoing allocation, which was the result of arm's
length negotiations, for purposes of all Federal, State and local tax returns.
Purchaser agrees to pay at the Closing the applicable New York State Sales Taxes
on the furniture, fixtures and equipment transferred, and to indemnify and hold
harmless the Seller from any and all claims for taxes due as a result thereof.
This provision shall survive the Closing.
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3. ACCEPTABLE FUNDS. All money payable under this agreement, unless otherwise
specified, shall be paid either: (a) in cash, but not more than $1,000 shall be
paid in cash; (b) by good certified check of Purchaser, or official check of any
bank, savings bank, trust company, or savings and loan association which is a
member of the New York Clearing House, payable to the direct order of Seller; or
(c) as otherwise agreed to in writing by the parties or their attorneys.
4. THE CLOSING. The "closing" means the settlement of the obligations of Seller
and Purchaser to each other under this agreement, including the payment of the
purchase price to Seller as provided in Article 1 hereof and the delivery of the
closing documents provided for in Article 5 hereof. The closing shall be held at
the offices of XxXxxxx, Xxxxxxx & DiCunto, LLP, 000 Xxx Xxxxx Xxxxxxx, Xxxxxxxx,
XX 00000, at 10 A.M. on or about five (5) days after receipt of Landlord's
written consent to Sub-lease Agreement. (the "closing date").
5. CLOSING DOCUMENTS. At the closing Seller shall execute and deliver to
Purchaser:
(a) a Xxxx of Sale for all furniture, fixtures and equipment;
(b) Sub-Lease substantially in the form of Exhibit A hereto;
(c) Landlord's consent to Sub-Lease Agreement in the form annexed
hereto;
(d) such other instruments as may be necessary or proper to transfer to
Purchaser all other ownership interests in the Assets to be transferred
under this agreement;
(e) evidence that any existing violations have been satisfied and
removed of record;
(f) Memo of Lease fully executed, in recordable form, in the form
attached.
At the closing Purchaser shall execute and deliver to Seller:
(a) the Promissory Note, Security Agreement and UCC Financing Statements
and Guaranty provided for in Article 2 hereof.
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6. THE SECURITY AGREEMENT. The Security Agreement shall create a security
interest in the property described in Exhibit B. Purchaser agrees to perfect
the security interest of the Security Agreement by executing and delivering to
Seller appropriate Financing Statements and extensions and renewals thereof, in
accordance with the provisions of the Uniform Commercial Code, and all other
instruments or documents as may be reasonably requested by Seller. All filing
fees in connection therewith shall be paid by Purchaser.
7. CLOSING ADJUSTMENTS. The following items shall be apportioned as of midnight
of the day preceding the closing date:
(a) rent, including any additional rent, under the Lease;
(b) taxes;
(c) water and sewer charges.
Any errors or omissions in computing apportionments shall be corrected after the
closing.
8. WAIVER OF BULK TRANSFER REQUIREMENTS. The parties waive compliance with the
bulk transfer provisions of the Uniform Commercial Code which may be applicable
to this transaction. Seller agrees to hold harmless Purchaser against all claims
made by the creditors of Seller.
At the closing, Seller shall deposit with the Escrow Agent hereinafter
identified the Promissory Note to be held in escrow, for a period of ninety (90)
days, as security for the payment of any and all liabilities due the State and
City of New York for taxes. During the time that the Promissory Note is so held
in escrow, payments due on the Promissory Note shall be made by Purchaser to the
Escrow Agent. The Promissory Note so made shall be released from escrow and
delivered to Seller after ninety (90) days or at such time as a receipt or
receipts evidencing payment of said sales tax liabilities of Seller, or
appropriate releases, are delivered to Purchaser, whichever shall first occur,
with payments to be so released within ninety (90) days thereafter. Seller's
obligations as to said taxes shall remain, and Purchaser shall have a right of
set-off against the Note for payments made by it as a result of the non-payment
of same by Seller, as a result of any misrepresentations or failure to perform.
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9. USE OF PURCHASE PRICE TO PAY ENCUMBRANCES. If there is any lien or
encumbrance against the Assets, or anything else affecting this sale, which
Seller is obligated to pay and discharge at the Closing, Seller shall use any
portion of the balance of the purchase price to discharge it, or Seller may
allow to Purchaser the amount thereof as a credit at the Closing. Purchaser
agrees to provide separate certified checks as reasonably requested to assist in
clearing up these matters.
10. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser as follows:
(a) Seller has full power and authority to conduct its business as now
carried on, and to carry out and perform its undertakings and obligations as
provided herein.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Seller to consummate the transactions
contemplated hereby.
(c) Seller is the owner of and has good and marketable title to the Assets,
free of all liens, claims and encumbrances, except as may be set forth
herein.
(d) There are no violations of any law or governmental rule or regulation
pending against Seller or the Assets.
(e) There are no judgments, liens, suits, actions or proceedings pending, or
to its knowledge threatened, against Seller or the Assets.
(f) Except as set forth in sub-paragraph 11(d) herein, Seller has not
entered into, and the Assets are not subject to, any: (i) written contract
or agreement for the employment of any employee of the business; (ii)
contract with any labor union or guild; (iii) pension, profit-sharing,
retirement, bonus, insurance, or similar plan with respect to any employee
of the business; or (iv) similar contract or agreement affecting or relating
to the Assets.
(g) The Lease is the only agreement between Landlord and Seller with respect
to the premises demised thereunder, and is in full force and effect and
without any default by Seller, or Landlord, thereunder.
(h) Seller has no knowledge of any environmental or hazardous conditions at
the premises, including the presence of asbestos;
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(i) Seller has no knowledge of any other parties having rights or interest
in or to the premises.
11. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser has full power and authority to carry out and perform its
undertakings and obligations as provided herein.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Purchaser to consummate the transactions
contemplated hereby.
(c) There are no judgments, liens, suits, actions or proceedings pending or,
to the best of Purchaser's knowledge, threatened against Purchaser or its
property.
(d) Purchaser agrees to assume the obligations of Seller pursuant to the
security alarm equipment lease agreement annexed as EXHIBIT D. Purchaser
further agrees to defend, indemnify, and hold Seller harmless, from and
against any and all claims resulting from the future use of the alarm
system. This provision shall survive the Closing.
12. NO OTHER REPRESENTATIONS. Purchaser acknowledges that neither Seller nor any
representative or agent of Seller has made any representation or warranty
(expressed or implied) regarding the Assets or the business, or any matter or
thing affecting or relating to this agreement, except as specifically set forth
in this agreement. Seller shall not be liable or bound in any manner by any oral
or written statement, representation, warranty, agreement or information
pertaining to the Assets or the business or this agreement furnished by any
broker, agent or other person, unless specifically set forth in this agreement.
Purchaser has inspected the Assets, Purchaser agrees to take the Assets "as is"
and in their present condition, subject to reasonable use, wear, tear and
deterioration between now and the closing date.
13. CONDITIONS TO CLOSING. The obligations of the parties to close hereunder are
subject to the following conditions, any of which may be waived by the benefited
party:
(a) All of the terms, covenants and conditions to be complied with or
performed by the other party under this agreement on or before the closing
shall have been complied with or performed in all material respects.
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(b) All representations or warranties of the other party herein are true in
all material respects as of the closing date.
(c) On the closing date, there shall be no liens or encumbrances against the
Assets, except as may be provided for herein.
Seller promptly shall notify the lessor under the Lease (the "Lessor") of the
proposed Sub-Lease to Purchaser, and shall request the consent of the Lessor
thereto. Seller and Purchaser shall furnish to the Lessor such information as
may reasonably be required in connection with the procuring of such consent, and
shall otherwise cooperate with the Lessor and with each other in an effort to
expeditiously procure such consent. Neither Seller nor Purchaser shall be
obligated to make any payment to obtain such consent. If the Lessor shall fail
or refuse to grant such consent in writing in the form of a Landlord's Consent
Agreement, within ten (10) days after the date of this agreement (the "Outside
Date"), or shall require as a condition of the granting of such consent that
additional consideration be paid to the Lessor which neither Seller nor
Purchaser is willing to pay, then either Seller or Purchaser may terminate this
agreement, by written notice to the other delivered within ten (10) days after
the Outside Date.
If this agreement is terminated as provided above in this Article 13, Seller
shall direct Escrow Agent to return, without interest, the down payment and
Escrow Agent shall so return same, whereupon all rights of Purchaser hereunder
and to the business shall terminate, and neither Seller nor Purchaser shall have
any further claim against the other hereunder.
If Purchaser shall be entitled to decline to close the transactions contemplated
by this agreement, but Purchaser nevertheless shall elect to close, Purchaser
shall be deemed to have waived all claims of any nature arising from the failure
of Seller to comply with the conditions or other provisions of this agreement of
which Purchaser shall have actual knowledge at the closing.
14. ESCROW CONDITIONS. Concurrently with the execution of this agreement,
Purchaser has delivered to XxXxxxx, Xxxxxxx & DiCunto, LLP, having an address at
000 Xxx Xxxxx Xxxxxxx, Xxxxxxxx, XX 00000 ("Escrow Agent"), Purchaser's check
in the amount of $46,500.00, being the amount to be paid by Purchaser upon the
execution of this agreement (the "down payment"). At the closing, Seller is to
deliver to said Escrow Agent the Promissory Note to be held in escrow, as
provided in Article 8 above.
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Escrow Agent shall hold the down payment and the Promissory Note in accordance
with this agreement, or a joint instruction signed by Seller and Purchaser, or
separate instructions of like tenor signed by Seller and Purchaser, or a final
judgment of a court of competent jurisdiction. Escrow Agent hereby is authorized
and directed to deliver the down payment to Seller if, as and when title closes.
15. LIQUIDATED DAMAGES. If Purchaser defaults under this agreement, Seller as
its sole remedy shall be entitled to declare this agreement null and void and to
receive from Escrow Agent and to retain the down payment and any other sums paid
by Purchaser hereunder as liquidated damages, whereupon this agreement shall
terminate and neither Seller nor Purchaser shall have any further claim against
the other. The parties acknowledge that the actual damages sustained by Seller
in the event of such default are difficult, if not impossible, to ascertain.
16. BROKERAGE. The parties hereto represent and warrant to each other that they
have not dealt with any broker or finder in connection with this agreement or
the transactions contemplated hereby, other than Xxxxxxxxx Realty, Inc., whose
commission shall be paid by Seller and no other broker or any other person is
entitled to receive any brokerage commission, finder's fee or similar
compensation in connection with this agreement or the transactions contemplated
hereby. Each of the parties shall indemnify and hold the other harmless from and
against all liability, claim, loss, damage or expense, including reasonable
attorneys' fees, pertaining to any other broker, finder or other person with
whom such party has dealt. No action or inaction of Seller or Purchaser,
including the giving of notices, shall affect, change or discharge the
obligations of the Purchaser's Guarantor hereunder.
17. ASSIGNMENT. Purchaser shall not assign this agreement without the prior
written consent of Seller in each instance. Any attempted assignment without
Seller's consent shall be null and void.
18. NOTICES. All notices, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been properly given if delivered by hand or by registered or certified mail,
return receipt requested, with postage prepaid, to Seller or Purchaser, as the
case may be, at their addresses first above written, or at such other addresses
as they may designate by notice given hereunder. All notices shall be copied to
the respective party's attorneys as follows: To the Purchaser, copy to: ATTN:
XXXXXX X. XXXXXX, ESQ., PRYOR, CASHMAN, XXXXXXX & XXXXX, 000 XXXX XXXXXX, XXX
XXXX, XXX XXXX 00000-0000; To the Seller, copy to: ATTN: XXXXXXX X. XXXXXX,
ESQ., XXxXXXX, XXXXXXX & DIcUNTO, 000 XXX XXXXX XXXXXXX, XXXXXXXX, XXX XXXX
00000- 2720.
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19. ENTIRE AGREEMENT. This agreement contains all of the terms agreed upon
between Seller and Purchaser with respect to the subject matter hereof. This
agreement has been entered into after full investigation. All prior oral or
written statements, representations, promises, understandings and agreements of
Seller and Purchaser are merged into and superseded by this agreement, which
alone fully and completely expresses their agreement.
20. CHANGES MUST BE IN WRITING. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or any
other right. This agreement may not be altered, amended, changed, modified,
waived or terminated in any respect or particular unless the same shall be in
writing signed by the party to be bound. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
21. CAPTIONS AND EXHIBITS. The captions in this agreement are for convenience
only and are not to be considered in construing this agreement. The Exhibits
annexed to this agreement are an integral part of this agreement, and where
there is any reference to this agreement it shall be deemed to include said
Exhibits.
22. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions of this
agreement shall be unenforceable or invalid, such unenforceability or invalidity
shall not affect the remaining provisions of this agreement.
23. BINDING EFFECT. This agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and delivered by both Seller and Purchaser. Upon such execution and
delivery, this agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
24. OPTION PERIOD. Notwithstanding the prior provisions of this Agreement, upon
execution hereof, Purchaser shall deliver a bank, certified or attorney escrow
check in the amount of $20,000.00, which shall be deposited by and held in
escrow by XxXxxxx, Xxxxxxx & DiCunto, LLP, attorney for Seller. The $20,000.00
deposit shall be held in a non-interest bearing account until October 1, 1996.
(the "Expiration Date"). At or prior to the Expiration Date, Purchaser shall be
required to deposit an additional down payment of $26,500.00, representing the
balance of the full deposit due under the Agreement of Sale, in which event, the
terms and conditions of this Agreement shall be fully effective. In the event
Purchaser shall fail to deposit the additional sum of $26,500.00 within the
required period or otherwise notifies Seller
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in writing of its intention not to proceed with the Agreement of Sale, then, in
either event, the initial $20,000.00 deposit shall be forfeited by the
Purchaser. In such event, XxXxxxx, Xxxxxxx & DiCunto, LLP shall be authorized to
release the initial deposit of $20,000.00 to Seller and the Agreement shall
terminate and be of no further force and effect, with neither party having any
further claims as against the other.
IN WITNESS WHEREOF, the parties have executed this agreement the date first
above written.
KINGS CASTLE CATERERS, INC.
Witness:
BY: /s/ Xxxxx Xxxxxxxxxx, President
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Xxxxx Xxxxxxxxxx, President
RATTLESNAKE OF BAY RIDGE INC.
Witness:
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, C.E.O.
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EXHIBIT A
The Lease and Sub-Lease
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RIDER TO LEASE
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The provisions of this rider are hereby incorporated into and made a
part of the lease to which this rider is annexed. If there is any conflict
between the provisions of this rider and the remainder of this lease, the
provisions of this rider shall govern.
2. RENT
Tenant covenants to pay to Landlord as a net minimum rent (the "fixed
rent") during the term of this lease as follows:
Year Annual Rent Monthly Rent
Year 1 $81,600.00 $6,800.00
Year 2 84,048.00 7,004.00
Year 3 86,569.44 7,214.00
Year 4 90,032.22 7,502.00
Year 5 94,533.83 7,877.00
Year 6 99,260.52 8,270.00
Year 7 99,260.52 8,270.00
Year 8 99,260.52 8,270.00
Year 9 99,260.52 8,270.00
Year 10 99,260.52* 8,270.00
* TO BE PRORATED
The fixed rent shall be payable in advance in equal monthly
installments on the first day of each calendar month. If the term of this lease
does not commence on the first day of a month, the fixed rent for the month in
which the term of this lease commences shall be appropriately apportioned. The
first installment of fixed rent shall be paid simultaneously with the execution
of this lease.
Tenant also covenants to pay, from time to time as provided in this
lease, as additional rent, all other amounts and obligations which Tenant
assumes or agrees to pay under this lease. In the event of any failure on the
part of Tenant to pay any additional rent, Landlord shall have all the rights,
powers and remedies provided for in this lease, at law, in equity or otherwise,
in the case of nonpayment of fixed rent. Tenant's obligations to pay fixed rent
and additional rent shall survive the expiration of the lease term or earlier
termination of this lease, arising out of Tenant's default.
All fixed rent and additional rent (collectively hereinafter referred
to as "rent") shall be paid in such coin or currency (or, subject to collection,
by good check payable in such coin or currency) of the United States of America
as at the time shall be legal tender for the payment of public and private
debts, at the office of Landlord as set forth above, or at such place and to
such person as Landlord from time to time may designate.
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All rent shall be paid to Landlord without notice, demand,
counterclaim, setoff, deduction or defense, and nothing shall suspend, defer,
diminish, xxxxx or reduce any rent, except as otherwise specifically provided in
this lease.
3. Work To Be Performed
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Tenant at Tenant's sole cost and expense shall perform the work and
make the installations in the demised premises set forth in Paragraph "18"
hereto. Tenant shall obtain all necessary governmental approvals in connection
therewith.
Tenant has examined and inspected the demised premises. Tenant agrees
to accept possession of the demised premises "AS IS" except as otherwise
expressly provided herein. Landlord shall not be responsible for making any
improvements, alterations or repairs therein or for spending any other money to
prepare the demised premises for Tenant's occupancy, except as expressly
provided herein. All other improvements and alterations to the demised premises
prior to or at any time after the commencement of the term of this lease shall
be made at Tenant's sole cost and expense, in accordance with the provisions of
this lease.
4. Alterations and Additions
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Tenant shall be entitled to make all non-structural alterations or
additions to the demised premises without the prior written consent of Landlord
in each instance, so long as all alterations are consistent with the design and
furnishings of other Rattlesnake restaurants. Owner shall be responsible for all
structural repairs to the demised premises, including the roof. In the event
Owner fails to make required structural repairs which impact on Tenant's use of
the demised premises, Tenant may undertake such repairs on thirty (30) days'
prior written notice and may set-off the cost of such repairs as against rent
due.
5. Liens
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Tenant shall indemnify and hold Landlord harmless from and against any
and all bills for labor performed or equipment, fixtures and materials furnished
to or for Tenant, and from and against any and all liens or claims therefor or
against the demised premises or the building of which it forms a part, and from
and against any and all liability, claim, loss, damage or expense, including
reasonable attorneys' fees, in connection with any work performed by or for
Tenant. The demised premises and the building shall at all times be free of
liens for labor and materials supplied or claimed to have been supplied to or on
behalf of Tenant, and no financing statements or other security instruments
shall be filed against the demised premises or the building or the contents
thereof, except for new fixture financing. Landlord agrees to execute releases
and/or acknowledgements to confirm this.
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If, in connection with any work being performed by or for Tenant or any
subtenant, or in connection with any materials being furnished to Tenant or any
subtenant, any mechanic's lien or other lien or charge shall be filed or made
against the demised premises or any part thereof, or if any such lien or charge
shall be filed or made against Landlord as owner, then Tenant, at Tenant's
expense, within thirty (30) days after such lien or charge shall have been filed
or made, shall cause the same to be canceled and discharged of record by payment
thereof or filing a bond or otherwise.
Nothing in this lease shall constitute any consent or request by
Landlord, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the demised
premises or any part thereof, nor as giving Tenant any right, power or authority
to contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in any fashion that would permit
the filing or making of any lien or claim against Landlord, the demised premises
or the building.
6. Waste Removal
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Tenant, at Tenant's expense, shall contract for the removal, on a daily
basis, of all Tenant's garbage waste. Tenant, at Tenant's expense, shall cause
the demised premises to be exterminated from time to time to the satisfaction of
Landlord.
7. Licenses And Permits
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Tenant agrees to secure and maintain, at its own expense, all licenses
and permits from Federal, State and local authorities as may be necessary for
the conduct of Tenant's business, and shall comply with all applicable laws,
rules and regulations. Landlord does not represent that any license or permit
which may be required will be granted or, if granted, will continue in effect or
be renewed. Tenant's obligations under this lease shall in no way be affected by
Tenant's inability to secure or maintain any license or permit.
8. Utility Services
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Tenant shall pay all charges for all public or private utility services
provided to the demised premises which accrue on or after the commencement date
of this lease, shall comply with all contracts relating to such services, and
shall do all other things required for the maintenance and continuance of all
such services.
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Utilities shall include, but not limited to, all gas, electric, water, sewer and
telephone services.
Tenant, at its sole cost and expense, shall make all arrangements with
the public utility company serving the demised premises for obtaining and paying
for electricity and other utility services at the demised premises, including
without limitation arrangements pertaining to the installation and use of
meters, pans, risers, wiring, panel boards, feeders and other conductors and
equipment, if necessary. Landlord shall not be liable or responsible for charges
for electricity at the demised premises, or any loss, damage or expense which
Tenant may sustain or incur if either the quantity or character of electric
service is changed or is no longer available or suitable for Tenant's
requirements.
Tenant covenants and agrees that its use of electric current shall
never exceed the capacity of the existing conductors, feeders, risers, wiring
installations or other equipment servicing the building.
9. Compliance With Paramount Lease
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This lease is subject and subordinate to the terms, covenants and
conditions of that certain Lease Agreement dated December 1, 1995, with Rider
dated February 1, 1996, by and between 0000 Xxxxx Xxx. Realty Corp., as Landlord
and Kings Castle Caterers, Inc., as Tenant (the "Paramount Lease"), as modified
by the Landlord Consent Agreement. 0000 Xxxxx Xxx. Realty Corp. shall be
referred to herein as either Prime Landlord or Owner. Tenant, at Tenant's sole
cost and expense, shall observe, perform and comply with all of the terms,
covenants and conditions of the Paramount Lease to be observed, performed or
complied with by the lessee thereunder, other than the provisions for the
payment of rent. All rent payments under this lease must be made directly to the
Landlord hereunder and NOT to the Owner. In the event of any default in the
observance, performance or compliance with any such term, covenant or condition
of the Paramount Lease, other than the payment of rent, other than the payment
of rent, as claimed by Owner, Landlord, in addition to its other rights and
remedies hereunder, shall be entitled to cure such default under the Paramount
Lease, and all sums advanced or incurred by Landlord in connection therewith
shall be paid by Tenant to Landlord on demand as additional rent hereunder.
10. Limited Liability
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Tenant agrees that, notwithstanding any other provision of this lease,
Landlord shall not be under any personal liability under this lease and, if
Landlord defaults hereunder, Tenant shall look solely to the interest of
Landlord or its successor in the demised premises for the satisfaction of any
judgment or other judicial process requiring the payment of money by Landlord
based
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upon any default hereunder, and no other assets of Landlord or any such
successor shall be subject to levy, execution or other enforcement procedure for
the satisfaction of any such judgment or process.
11. Indemnification By Tenant
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Tenant shall indemnify and hold Landlord (and any fee owner, mortgagee
or lessor under any superior lease) harmless from and against any and all
liability, claim, loss, damage or expense, including reasonable attorneys ,
fees, by reason of any injury to or death of any person or persons, or injury or
damage to property, or otherwise, arising from or in connection with the
occupancy or use of the demised premises or any work, installation or thing
whatsoever done in, at or about the demised premises, or from any act, omission
or negligence of Tenant or any contractors, agents, employees, customers,
subtenants, licensees, guests or invitees of Tenant.
12. Insurance
-------------
Tenant, at all times during the term of this lease and at Tenant's
expense, shall provide and keep in force with insurers reasonably approved by
Landlord comprehensive public liability and property damage insurance protecting
Landlord against any and all liability occasioned by negligence, occurrence,
accident, disaster and other risks included under "extended coverage" policies,
occurring in or about the demised premises or any part thereof, in amounts
approved from time to time by Landlord, which amounts at the date hereof shall
be, in the case of public liability, $1,000,000 per person and $3,000,000 per
accident, and $500,000 in the case of property damage, and insurance against
such other hazards and in such amounts as is customarily carried by tenants in
similar restaurants, as Landlord reasonably may request.
All insurance maintained by Tenant pursuant to this Article 12 shall
name Landlord, Tenant and Owner as additional insureds, shall provide that any
loss shall be payable to Landlord notwithstanding any act or failure to act or
negligence of Landlord, Tenant or any other person, shall provide that no
cancellation, reduction in amount or material change in coverage thereof will be
effective until at least ten days after receipt by Landlord of written notice
thereof, and shall be satisfactory to Landlord, acting reasonably, in all other
respects. Notwithstanding the above, all casualty loss payments below $50,000.00
may be paid directly to Tenant so long as they are used to repair or restore the
demised premises. In the event of a casualty loss, Landlord may not terminate
this lease unless consented to by Tenant or unless there shall be less than two
(2) years remaining on this lease. All repairs required as a result of
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casualty loss shall be expeditiously commenced and completed by Tenant.
Upon the execution of this lease and thereafter not less than fifteen
days prior to the expiration date of any policy delivered pursuant to this
Article 12, Tenant shall deliver to Landlord the originals of all policies or
renewal policies or Certificates of Insurance, as the case may be, required by
this lease, bearing notations evidencing the payment of the premiums therefor.
If at any time Tenant shall neglect or fail to provide or maintain
insurance or to deliver insurance policies or certificates in accordance with
this Article 12, Landlord may, upon notice to Tenant, effect such insurance as
agent for Tenant, by taking out policies in a company satisfactory to Landlord,
and the amount of the premiums paid for such insurance shall be paid by Tenant
to Landlord on demand.
13. Assignment and Subletting
-----------------------------
Tenant expressly covenants that Tenant shall not voluntarily or
involuntarily assign, encumber, mortgage or otherwise transfer this lease, or
sublet the demised premises or any part thereof, or suffer or permit the demised
premises or any part thereof to be used or occupied by others, by operation of
law or otherwise, without the prior written consent of Landlord in each
instance. Absent such consent, any act or instrument purporting to do any of the
foregoing shall be null and void. Landlord's consent to any proposed assignment
or subletting may not be unreasonably withheld, or delayed. Failure to respond
within thirty (30) days shall be deemed a consent.
If Tenant desires to assign this lease or sublet all or any portion of
the demised premises, Tenant shall submit to Landlord in writing: the name and
address of the proposed assignee or subtenant; a counterpart of the proposed
agreement of assignment or sublease and all other instruments or agreements
pertaining thereto; such information as to the nature and character of the
business of the proposed assignee or subtenant, and the proposed use of the
space, as Landlord reasonably may request; banking, financial or other credit
information relating to the proposed assignee or subtenant, to the extent
available to Tenant, sufficient to enable Landlord to determine the financial
responsibility and character of the proposed assignee or subtenant. Tenant shall
pay all of Landlord's costs and expenses, including reasonable attorneys' fees,
incurred in connection with the review, preparation and execution of any
documents pertaining to any proposed assignment or sublease.
In the event of an assignment or subletting, Tenant shall continue to
remain fully obligated under the terms of this lease.
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14. Brokerage
-------------
Landlord and Tenant represent and warrant that they have not dealt with
any broker in connection with this lease or the negotiation or execution thereof
other than Xxxxxxxxx Realty, Inc., who is being paid by Landlord. Each party
agrees to indemnify and hold the other harmless from and against any claims,
damage, liability or expense, including attorneys' fees, pertaining to any other
broker with whom they have dealt.
15. Notices
-----------
All notices required or permitted to be given hereunder shall be sent
by registered or certified mail, return receipt requested, addressed to Landlord
or Tenant at the address hereinabove stated, or to Tenant at the demised
premises, or to such other address as either party hereafter may designate by
notice hereunder.
In addition, written notice shall be sent to XxXxxxx, Xxxxxxx & DiCunto
LLP, 000 Xxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, as attorneys for Landlord
and to Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, as attorneys for Tenant.
16. Miscellaneous
-----------------
The submission of this lease to Tenant shall not be construed as an
offer or option, and Tenant shall not have any rights hereunder unless and until
Landlord shall execute a copy of this lease and deliver the same to Tenant.
17. Option To Extend
--------------------
Provided that the Tenant is not in default beyond any notice and grace
period under any of the terms herein, Tenant shall have the option to renew this
lease for the period, commencing on the 1st day of the first month immediately
following the expiration of this lease and ending on the 30th day of January in
the Year 2011. In order to exercise this option to extend the term of the lease,
Tenant must give Landlord written notice by Certified Mail, Return Receipt
Requested, on or before December 1st, 2005. All of the terms and conditions of
this lease will remain in full force and effect during the extension period;
except that the rent payable during the extension period shall be $104,196.00
per year, in equal monthly installments of $8,683.00 each.
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18. Improvements
----------------
The Tenant acknowledges that the demised premises requires substantial
improvements which by their very nature will become attached to and will improve
the structure of the premises for the benefit of the Landlord and the Owner of
the property. The following improvements will be made by the Tenant at its own
cost and expense during the term of this lease: (a) new oil burner, (b) new
fifteen (15) ton air conditioning unit, and (c) new upgraded 400 - 800 AMP
electrical service.
The Tenant has examined the subject premises and is aware of these
required improvements. The Tenant shall be responsible for the cost of these
improvements.
19. Real Estate Taxes
---------------------
Tenant shall pay, during the term of this lease, the additional rent
provided for in this Article. As used herein, the following terms shall have the
meanings set forth below.
"Real Estate Taxes" shall mean all real estate taxes, assessments, water
charges and sewer rents, and other taxes and charges of every nature and
kind whatsoever, whether general or special, ordinary or extraordinary,
foreseen or unforeseen, of every character, which at any time may be
assessed, levied, charged, confirmed or imposed on or in respect of or be a
lien upon the building. "Real Estate Taxes" shall exclude income, franchise,
inheritance or similar taxes; provided, however, that if the method of
taxation or assessment shall be changed so that the whole or any part of the
Real Estate Taxes theretofore payable with respect to the building instead
shall be levied, charged, assessed or imposed in whole or in part on the
income or rents received by Landlord from the building or shall otherwise be
imposed against Landlord in the form of a franchise tax or otherwise, then
the same shall be deemed Real Estate Taxes for purposes of this Article.
"Escalation Year" shall mean each twelve month period or portion thereof,
ending on June 30th, occurring within the term of this lease.
"Base Year" shall mean the twelve month period ending on June 30th, 1996.
The "building" shall mean the land and the building of which the demised
premises forms a part, known as 0000 Xxxxx Xxxxxx, in the City of New York,
Borough of Brooklyn.
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"Tenant's Share" shall mean 50% percent.
Tenant shall pay to Landlord, as additional rent, an amount equal to
Tenant's Share of the amount of the Real Estate Taxes payable during the term
hereof. Such additional rent may be billed by Landlord at or about the dates on
which installments of Real Estate Taxes are due and payable by Landlord, or
within twelve (12) months thereafter, and such additional rent shall be payable
by Tenant to Landlord within ten days after being billed therefor.
The Real Estate Taxes actually payable by Landlord shall be used in
computing the additional rent hereunder. If Landlord receives a refund of any
Real Estate Taxes paid during any year on which additional rent shall have been
based, as a result of a reduction of Real Estate Taxes by final determination of
legal proceedings, settlement or otherwise, the additional rent shall be
recomputed based on the net refund, after deducting Landlord's expenses, and
Tenant shall receive a credit for or refund of any overpayment of additional
rent.
Landlord shall not be obligated to contest the levy or assessment of
any Real Estate Taxes, and it shall be at Landlord's sole discretion whether any
such contest shall be undertaken by Landlord. Tenant shall also have the right
to take and prosecute all such proceedings and if so taken, may proceed at its
own expense and may prosecute the proceeding, including settlement and
discontinuance.
In no event shall the annual fixed rent under this lease be reduced by
virtue of this Article.
The additional rent provided herein shall be apportioned as of the
expiration of the lease term or earlier termination of this lease. The
obligations of Tenant to pay additional rent as provided for herein shall
survive the expiration of the lease term or earlier termination of this lease.
The additional rent provided for herein shall be collectible by
Landlord in the same manner as the regular installments of fixed rent due under
this lease. No delay or failure by Landlord in preparing or delivering any
statement or demand for any additional rent shall constitute a waiver of, or
impair Landlord's rights to collect, such additional rent.
20. Security Deposit
--------------------
Tenant has deposited with Landlord the sum of $6,800.00 as security for
the full and faithful performance and observance by Tenant of the terms,
covenants and conditions of this lease. If Tenant defaults in the performance or
observance of any term,
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covenant or condition of this lease, including without limitation the obligation
of Tenant to pay any rent or other sum required hereunder, Landlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent or any other sum as to which Tenant is in
default or for any sum which Landlord may expend or may be required to expend by
reason of Tenant's default, including without limitation any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. If Tenant shall fully and faithfully observe and perform all of the
terms, covenants and conditions of this lease, the security, without interest,
shall be returned to Tenant after the end of the first six (6) months of this
lease.
21. Non-disturbance Agreement
-----------------------------
Landlord shall use its best efforts to obtain a Non-disturbance
Agreement protecting the respective interests of the Landlord and the Tenant in
the subject premises in the form of agreement annexed hereto and made a part
hereof. In the event that the holder of any current mortgage against the subject
premises is unwilling to execute a Non-disturbance Agreement in either the form
annexed hereto or in some other form acceptable to both Landlord and Tenant,
then, in such event, the parties shall have the following rights and
obligations.
In the event a foreclosure action is instituted and both the Landlord
and Tenant are named as parties thereto, then in such event, the Landlord shall
have the option of purchasing the mortgage, in which case the action against the
Landlord and Tenant shall be discontinued. At such time, Landlord shall either
discharge the mortgage of record or enter into a Non-disturbance Agreement with
the Tenant in the form annexed hereto.
Landlord shall be obligated to advise Tenant within thirty (30) days of
the commencement of the foreclosure action whether or not it intends to purchase
the mortgage. In the event Landlord elects not to so purchase or fails to advise
Tenant that it intends to purchase the mortgage, then, in such event, Tenant
shall have the option of purchasing the defaulted mortgage from the holder
thereof. In such event, Tenant shall have the right to offset as against future
rent due, the amount paid to purchase the
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defaulted mortgage. Thereafter, Tenant shall assign the mortgage to the Landlord
without additional consideration.
KINGS CASTLE CATERERS, INC.
BY:
---------------------------------------
LANDLORD
RATTLESNAKE OF BAY RIDGE, INC.
BY:
---------------------------------------
TENANT
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EXHIBIT B
The Equipment, Furniture, Fixtures and Improvements
Located at Short Ribs Restaurant & Bar
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EXHIBIT C
Excluded Assets
---------------
1. Grandfather Clock
2. Frozen Drink Machines (2)
3 Bar stock
4. Restaurant inventory
5. Stained glass
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EXHIBIT D
Security Alarm Equipment Lease Agreement
