GUARANTY OF LEASE
EXHIBIT
10.3
This Guaranty of Lease (this “Guaranty”) is made
as of the 11th day of Septemer, 2009 by NATHAN’S FAMOUS, INC., a Delaware
corporation, having an office at 0000 Xxx Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 (the
“Guarantor”), for the benefit of ONE-TWO JERICHO PLAZA OWNER, LLC, having an
office at Two Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000
(“Owner”).
WITNESSETH:
WHEREAS,
Owner and NATHAN’S FAMOUS SERVICES, INC., a Delaware corporation (“Tenant”), are
concurrently with the execution and delivery of this Guaranty entering into a
lease (“Lease”) for certain office space (the “Premises”) located in the
building known as Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx xx Xxx Xxxx, as more fully
set forth in the Lease; and
WHEREAS,
as a specific and material inducement to Owner to enter into the Lease with
Tenant, knowing that Owner would not have entered into the Lease without, inter alia,
the execution and delivery of this Guaranty, the Guarantor has agreed to execute
and deliver this Guaranty; and
WHEREAS,
the Guarantor is the parent of Tenant, and the Guarantor will derive a
substantial benefit from the making of the Lease between Owner and Tenant;
and
NOW,
THEREFORE, in consideration of (i) Owner entering into the Lease with Tenant,
and (ii) ten dollars ($10.00) paid by Owner to Guarantor, and (iii) for other
good and valuable consideration, the receipt and sufficiency of all of the
foregoing are hereby conclusively acknowledged, and in order to induce Owner to
enter into the Lease, Guarantor hereby agrees as follows:
1. Preambles. The
preambles set forth above are incorporated herein and made a part of this
Guaranty as though set forth at length.
2. Definitions. Capitalized
terms not otherwise defined herein shall have the same meaning as set forth in
the Lease provided, however, that for the purpose of this Guaranty, the term
“Lease” shall include all renewals, extensions, modifications, assignments,
subleases, and amendments thereto.
3. Scope of
Guaranty.
(a) (i)
The Guarantor hereby unconditionally guarantees all sums due Owner under the
Lease for Basic Rent and Additional Rent, however denominated (all of the
foregoing sums being hereinafter individually and collectively referred to as
“Obligations”).
(ii)
Guarantor waives any right to require that any action be brought against Tenant
or to require that resort be had to any security or to any other credit in favor
of Tenant.
(iii)
This is a payment guaranty. Nothing herein contained is intended to
diminish or waive any rights Owner may have at law or in equity under the Lease,
the foregoing provision being intended to be in addition to and not in
limitation of any other rights Owner may have at law or in equity under the
Lease.
(iv) Guarantor’s
obligations under this Guaranty shall not be subject to offset, deduction,
reduction, counterclaim of any kind, and Owner shall not be required to apply
any portion of any security deposit or other collateral held by it to the
reduction of the obligations and the amount of any security or other collateral
applied by Owner shall not be credited to the benefit of the
Guarantor.
4. Guarantor’s
Covenants. Guarantor covenants and agrees that:
(a) The
liability of Guarantor is primary, shall not be subject to deduction for any
claim of offset, counterclaim or defense which Tenant may have against Owner
other than the defense of payment, and Owner may proceed against Guarantor
separately or jointly, before, after or simultaneously with any proceeding
against Tenant for default;
(b) This
Guaranty shall not be terminated or impaired in any manner whatsoever by reason
of the assertion by Owner against Tenant of any of the rights or remedies
reserved to Owner pursuant to the provisions of the Lease, by reason of summary
or other proceedings against Tenant, or by reason of any extension of time or
indulgence granted by Owner to Tenant;
(c) Guarantor
expressly waives any requirement of notice of nonpayment, nonperformance, or non
observance, or proof of notice or demand;
(d) This
Guaranty shall be absolute and unconditional and shall remain and continue in
full force and affect as to any renewal, extension, amendment, addition,
assignment, sublease, transfer, or other modification of the Lease and during
any period when Tenant is occupying the demised premises as a "statutory
tenant";
(e) This
Guaranty shall in no way be affected, modified or diminished by reason of any
bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit
of creditors, receivership or trusteeship affecting Tenant; and
(f) IN
ANY ACTION OR PROCEEDING BROUGHT BY OWNER AGAINST GUARANTOR ON ACCOUNT OF THIS
GUARANTY, GUARANTOR SHALL AND DOES HEREBY WAIVE TRIAL BY JURY.
5.
Miscellaneous:
(a) Guarantor
shall execute, acknowledge and deliver all instruments, and take all action as
Owner, from time to time, may request for reasonably assuring to Owner the full
benefits intended to be created by this Guaranty.
(b) All
of Owner's rights and remedies under the Lease or under this Guaranty are
intended to be distinct, separate and cumulative and no such right or remedy
therein or herein mentioned is intended to be in exclusion of or a waiver of any
of the others.
(c) All
obligations and liabilities of Guarantor pursuant to this Guaranty shall be
binding upon the successors, and assigns of Guarantor.
(d) This
Guaranty does not modify the terms of the Lease and nothing herein contained
shall relieve Tenant from any liability thereunder.
(e) If
more than one person executes this Guaranty, or more than one person guarantees
the Lease pursuant to separate instruments of guaranty, whether or not similar
to this Guaranty, the liability of Guarantor and such other persons shall be
joint and several.
(f) All
payments to be made and the obligations to be performed hereunder shall be paid
or performed in the location for payment or performance (as applicable) as set
forth in the Lease. In addition to the Obligations, the Guarantor
unconditionally agrees to pay the Owner’s collection expenses, including,
without limitation, costs, disbursements and reasonable attorneys’ fees if Owner
engages an attorney to enforce this Guaranty, including, but not limited to,
enforcement by demand, negotiation, suit, or bankruptcy or other judicial
proceedings.
(g) This
Guaranty shall be governed by, construed and enforced in accordance with the
laws of the State of New York without giving effect to any principle of New York
Law that would result in the selection or application of the law of any other
jurisdiction. Guarantor hereby expressly consents to the jurisdiction
of the Courts of the County of Nassau (or any successor thereto) and the United
States District Court for the Eastern District of New York with respect to any
action or proceeding among Landlord, Tenant and/or Guarantor with respect to
this Guaranty or any rights or obligations of any party pursuant to or in
connection with this Guaranty, and Guarantor agrees that venue shall lie in
Nassau County. Guarantor further waives any and all rights to
commence any such action or proceeding against Landlord before any other
court. Without limiting any other methods of obtaining jurisdiction,
personal jurisdiction of the Guarantor in any action or proceeding may be
obtained within and without the jurisdiction of any court located in the State
of New York.
IN
WITNESS WHEREOF, the Guarantor has executed and delivered this Guaranty as of
the year and date first above written.
|
NATHAN’S
FAMOUS, INC.
|
||
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF SUFFOLK
|
)
|
On the
11th day of September, in the year 2009, before me, the undersigned, a Notary
Public in and for said state, personally appeared Xxxx Xxxxxx personally known
to me or proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity and that by his/her signature on
the instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.
|
/s/ Xxxx Xxxxxx
|
|
Notary
Public
|
| XXXX XXXXXX |
| Notary Public, State of New York |
| No. 01HY4824424 |
| Qualified in Suffolk County |
| Commission Expires, May 31, 2010 |
