Contract
EHIBIT
10.1 Third Lease Amendment and Extension of Lease, dated as of June 16, 2009,
between Reisterstown Bowl Inc., a wholly-owned subsidiary of the Registrant,
Fairfax Circle Investors, LLC and Fairfax Circle Investors II, LLC.
THIRD
LEASE AMENDMENT AND EXTENSION OF LEASE
THIS
THIRD LEASE AMENDMENT AND EXTENSION OF LEASE (“Amendment”) is entered as
of the
16th
day of June, 2009, by and between: FAIRFAX CIRCLE INVESTORS, LLC and
FAIRFAX CIRCLE
INVESTORS II, LLC, Virginia limited liability companies, as tenants in common,
hereinafter collectively
referred to as “Lessor”; and REISTERSTOWN BOWL, INC., A Maryland corporation,
d/b/a “Bowl
America”. hereinafter referred to as “Lessee.”
RECITALS:
A.
Lessor’s
predecessor-in-interest and Lessee entered into a Lease Agreement dated
September 29, 1962
(“Original Lease”), as amended by that certain Lease Amendment dated
April 4, 1963 (“First Amendment”)
and that certain Second Lease Amendment dated December 20, 1993 (“Second
Amendment”)
(collectively, the “Lease”), whereby Lessee let those certain premises,
containing approximately
thirty-five thousand three hundred seventy-three (35,373) square feet, and
including Tenant’s
bowling center and storefront thereon, as described in the Lease (collectively,
the “Premises”), located
in the Fairfax Circle Shopping Center, Fairfax, Virginia (“Shopping Center”),
for a period expiring
on July 31, 2009. As used in this Amendment, the term “Lease” shall
mean the “Lease, as amended
hereby,” unless its context expressly requires it to mean the Original Lease,
the First Amendment,
or the Second Amendment; and
X.
Xxxxxx
and Lessee desire to extend the term of the Lease and amend the Lease in certain
respects as
hereinafter provided.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and other
good and valuable
consideration, the receipt and sufficiency of which are hereby reciprocally
acknowledged, Lessor and
Lessee agree as set forth below.
1.
Recitals. The
foregoing recitals and representations form a material part of this Amendment
and are
incorporated herein by this reference.
2.
Term. The
term of the Lease is hereby extended and revised so that the expiration date
shall be July 31,
2014 instead of July 31, 2009. The period from August 1, 2009 through
July 31, 2014 is hereinafter
referred to as the “Third Extended Term”. Except a set forth in
Paragraph 4 hereinbelow, any
provision in the Lease, whether express or implied, which could be construed as
providing Lessee a further
right to extend the term of the Lease past the expiration date of the Third
Extended Term set forth in
the preceding sentence, including, but no limited to, Paragraph 3 of the
Original Lease and Paragraph
3 of the Second Amendment, shall no longer be applicable.
3.
Guaranteed Minimum
Rent. During the Third Extended Term, “guaranteed minimum
rent” (as such term
is defined in Paragraph 5 of the Original Lease) shall be as
follows:
Period Annually Monthly
8/1/09-7/31/14 $200,000.04 $16,666.67
During
the Third Extended Term (and the “Fourth Extended Term”, as defined in Paragraph
4 hereinbelow), minimum guaranteed rent shall be inclusive of all periodic
charges previously payable to Lessor under the Lease,
including, but not limited to, percentage rent based on gross sales, common
facilities costs, and real estate
taxes.
4.
Fourth Extended
Term.
(a)
Lessor
hereby grants to Lessee the conditional right, exercisable at Lessee’s option,
to extend the term
of the Lease for one (1) period of five (5) years (“Extension Option”),
exercisable as hereinafter
provided. If properly exercised and if the conditions applicable
thereto have been satisfied,
the extension term shall commence immediately following the end of the Third
Extended Term
provided in Paragraph 3 of this Amendment, and, in such event, such extension
term (the “Fourth
Extended Term”) shall be deemed to be part of the term of the
Lease. The right of extension herein
granted to Lessee shall be subject to, and shall be exercised strictly in
accordance with, the following
terms and conditions.
(b)
Lessee
shall exercise the Extension Option with respect to the Fourth Extended Term by
giving Lessor
written notice of the exercise thereof (the “Option Notice”) not later than
eight (8), nor earlier than
twelve (12), months prior to the expiration of the Third Extended
Term. Time is of the essence as to all
dates pertaining to Lessee’s exercise of the Extension Option. If the
Option Notice is not given
timely or if Lessee does not exercise the Extended Option or if Lessee has been
in default under the Lease
at any time during the term of the Lease or if the Lessee has assigned the Lease
or sublet all or any
portion of the Premises, then at Lessor’s election, the Option Notice shall be
void, and Lessee’s right of
extension with respect to the unexercised Extension Option and uncommenced
Fourth Extended
Term shall thereupon and thereafter lapse, terminate and be of no further force
or effect. In no event
shall Lessee have the right to extend the term of the Lease beyond the
expiration of the Fourth
Extended Term.
(c)
During
the Fourth Extended Term, all of the terms, conditions, covenants and agreements
set forth in
the Lease shall continue to apply and be binding upon Lessor and Lessee, except
that minimum
guaranteed rent shall be as follows:
Period Annually Monthly
8/1/14-7/31/19 $230,000.04 $19,166.67
(d)
Lessee
hereby specifically acknowledges and agrees that the time limitations upon the
exercise of the
Extension Option will be strictly enforced, that any attempt to exercise the
Extension Option at any other
time shall be void and of no force or effect, and that if the Fourth Extended
Term is not exercised within the applicable time period, Lessor intends
immediately thereafter to undertake appropriate efforts relating to the
marketing or management of the Premises. The period of time within
which the Extension Option may be exercised shall not be extended or enlarged by
reason of Lessee’s inability to exercise the Extension Option because of any
provisions of this Paragraph 4 or for any other reason
whatsoever.
(e)
The
provisions of this Paragraph 4 are subject and subordinate to the provisions of
Paragraph 5 herein
below.
5.
Option to
Terminate. Lessor shall have the absolute right to terminate
the Lease effective at any time from and
after July 31, 2016 upon giving Lessee at least one hundred eighty (180) days’
prior written notice. On
the date set forth in Lessor’s notice of termination, Lessee shall vacate and
surrender possession of the Premises
in accordance with the terms of the Lease. In the event that the
Lease is terminated pursuant to this
Paragraph 5, Lessor will pay to Lessee an amount equal to the unamortized cost,
as of the effective date of
termination, of “Lessee’s Unamortized FF&E Costs” (as hereinbelow
defined). “Lessee’s Unamortized FF&E
Costs” means an amount equal to the unamortized cost of all furniture, fixtures,
and equipment (“FF&E”)
existing in the Premises on the date of Lessor’s termination
notice. The cost of such FF&E shall be
amortized on a monthly straight-line basis over the useful life thereof,
commencing from the time such cost
was expended be Lessee. Lessor shall have the right to inspect, at
Lessee’s principal accounting office
within the continental United States, such books or records relating to such
FF&E as are necessary to enable
Lessor or an authorized representative of Lessor to confirm the accuracy of
Lessee’s Unamortized FF&E
Costs. If such audit shows that Lessee has overstated Lessee’s
Unamortized FF&E Costs, Lessee shall pay
to Lessor forthwith the amount of such overpayment made by Lessor. In
addition, if such audit shows
that Lessee has overstated Lessee’s Unamortized FF&E Costs by Five Hundred
Dollars ($500.00) or more,
then Lessee shall immediately pay to Lessor the reasonable cost of such
audit. Lessee shall execute
such other documents as may be required by Lessor to give effect to the
provisions of this Paragraph.
6.
Renovation. In
the event that Lessor renovates the façade of the Shopping Center, Lessor shall
have the
absolute, unconditional right to replace Lessee’s existing sign with a new sign
in connection with such renovation. Lessee shall, within fifteen (15)
days following Lessor’s request, pay to Lessor fifty percent (50%) of
Lessor’s costs incurred in replacing such sign (including costs of the new
sign); provided, however,
that Lessee shall not be required to pay more than One Thousand Five Hundred
Dollars ($1,500.00)
pursuant to this sentence.
7.
Limitation of Lessor
Liability. Lessee shall neither assert nor seek to enforce any
claim, and hereby waives
any and all rights to assert or claim, for breach of the Lease against any of
Lessor’s assets other than Lessor’s interest in the Shopping Center, or any
portion thereof, and Lessee shall look solely to such interest for the
satisfaction of any liability of Lessor under this Lease, it being specifically
agreed that in no event shall
Lessor (or any of Lessor’s officers, trustees, directors, partners,
beneficiaries, joint ventures, members, stockholders, or other principals or
representatives, disclosed or undisclosed) ever be personally liable for
any such
liability. This Paragraph 7 shall not limit any right that Lessee
might otherwise have to obtain injunctive
relief against Lessor. In no event shall Lessor (or any of Lessor’s
officers, trustees, directors, partners,
beneficiaries, joint ventures, members, stockholders, or other principals or
representatives, disclosed
or undisclosed) ever be liable for consequential, speculative, punitive damages,
or lost profits.
8.
Waiver of Jury
Trial. TO
INDUCE LESSOR AND LESSEE TO ENTER INTO THIS AMENDMENT,
LESSOR AND LESSEE EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY OF ANY OR ALL ISSUES CLAIMS, CAUSES OF ACTION AND/OR IN ANY ACTION
OR
PROCEEDING BETWEEN LESSOR AND LESSEE OR THEIR SUCCESSORS, ASSIGNS, PERSONAL OR
LEGAL REPRESENTATIVES AND HEIRS UNDER OR IN CONNECTTION WITH
THE LEASE, ANY OF THE PROVISIONS OF THE LEASE, AND/OR LESSEE’S USE AND/OR
OCCUPANCY OF THE PREMISES. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY
AND VOLUNTARILY MADE BY LESSOR AND LESSEE, AND LESSOR AND LESSEE EACH
ACKNOWLEDGE THAT NEITHER LESSOR NOR LESSEE NOR ANY PERSON ACTING
ON BEHALF OF LESSOR OR LESSEE HAS MADE ANY REPRESENTATIONS OF FACT
OR LAW TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY
OR NULLIFY ITS EFFECT. LESSOR AND LESSEE EACH FURTHER ACKNOWLEDGE
THAT HE, SHE OR IT HAS HAD THE OPPURTUNITY TO DISCUSS THIS AMENDMENT AND THIS
WAIVER WITH LEGAL COUNSEL.
9.
Broker. Each
of the parties hereto represents and warrants that, other than the brokerage
commission payable
by Lessor to Xxxxxxxxx Realty, LLC pursuant to a separate agreement, there are
no other brokerage commissions or finders’ fees of any kind due in connection
with this Amendment, and each of the parties hereto
agrees to indemnify the other against, and hold it harmless from, any and all
liabilities, damages, costs,
claims and obligations arising from any such claim (including, without
limitation, the cost of reasonable
attorneys’ fees in connection therewith).
10.
Notices. The
Lease is hereby modified to provide that notices to Lessor shall be sent to the
address set forth
below:
c/o
Rosenthal Properties, LLC
0000 Xxx
Xxxxxxxxxx Xxxx
Xxxxx
000
Xxxxxx
Xxxxxxxx 00000
11.
Defined
Terms. Terms that are defined elsewhere in the Lease shall
have the same meanings when such terms are
used in this Amendment.
12.
Confirmation of
Terms. All the terms, covenants and conditions of the Lease,
except as are herein specifically
modified and amended, shall remain in full force and effect and are hereby
adopted and reaffirmed by the
parties hereto.
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Amendment under their respective seals on the day and year first
above written.
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LESSOR:
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Witness:
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Fairfax
Circle Investors, LLC and Fairfax
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Circle
Investors II, LLC as Lessees in Common
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By: RG
Acquisitions III, LLC, Manager of both
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Xxx
Xxxxxxxx
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BY: Xxxxx
X. Xxxxxxxxx
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Manager
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Attest:
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LESSEE:
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Reisterstown Bowl, Inc., a
Maryland
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Corporation, d/b/a “Bowl
America”
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By: Xxxxxx
Xxxxxx
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By: Xxxxxxx
X. Xxxx
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Assistant
Treasurer
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Assistant
Secretary
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