Exhibit 10.12
Execution Copy
Print Date: April 6, 2000
COMMERCIAL LEASE
SAUNSTAR OPERATING CO., LLC
acting by and through its agent,
Xxxxxxxx Real Estate Corporation
(Landlord)
and
S & W OF BOSTON LLC
(Tenant)
For Premises Located Within The Armory/Castle, 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx
TABLE OF CONTENTS
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1. Parties ............................................................... 7
2. Premises .............................................................. 7
3. Term .................................................................. 8
3.1 Initial Term
3.2 Automatic Extension
4. Rent .................................................................. 8
4.1 Base Rent
4.2 Percentage Rent
4.2.1 Quarterly Percentage Rent Payments
4.2.2 Annual Adjustments in Percentage Rent
4.3 Accounting and Record Keeping
4.4 Definition of Gross Sales
4.5 Definition of Fully Opened For Business
4.6 Additional Rent
5. Intentionally Deleted ................................................. 15
6. Taxes ................................................................. 15
7. Utilities ............................................................. 16
8. Use Of Leased Premises ................................................ 17
8.1 Permitted Use
8.2 Tenant Operating Covenant
9. Compliance With Laws .................................................. 18
10. Fire Insurance ........................................................ 19
11. Maintenance ........................................................... 19
11.1 Tenant's Obligations
11.2 Landlord's Obligations
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12. Alterations-Additions ................................................. 21
12.1 General
12.2 Supervision
12.3 Indemnification
12.4 Insurance
12.5 Massachusetts Historical Commission & Landmark's Commission
13. Assignment-Subleasing ................................................. 23
14. Subordination/Estoppel ................................................ 25
15. Landlord's Access ..................................................... 25
16. Indemnification And Liability ......................................... 26
17. Tenant's Insurance .................................................... 26
18. Fire Casualty-Eminent Domain .......................................... 27
19. Default And Bankruptcy ................................................ 28
20. Notice ................................................................ 30
21. Surrender ............................................................. 31
22. Brokerage ............................................................. 31
23. Condition Of Premises ................................................. 32
24. Force Majeure ......................................................... 32
25. Late Charge ........................................................... 32
26. Liability Of Owner .................................................... 32
27. Invalidity Of Particular Provisions ................................... 33
28. When Lease Becomes Binding ............................................ 33
29. Cumulative Rights ..................................................... 33
30. Holding Over .......................................................... 33
31. Non-Subrogation ....................................................... 34
32. Late Delivery ......................................................... 34
33. Recording ............................................................. 35
34. Rights Reserved By Landlord ........................................... 35
35. (Intentionally Deleted) ............................................... 35
36. Lease Contingencies ................................................... 36
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37. Landlord's Lien ....................................................... 37
38. Tenant's Financial Condition .......................................... 38
39. Tenant's Work ......................................................... 38
39.1 General
39.2 (Deleted)
39.3 Landlord's Contribution
39.4 Plans and Specifications
40. Guaranty .............................................................. 40
41. Governing Law ......................................................... 40
42. Due Execution And Authority ........................................... 41
43. Commencement Date Certificate ......................................... 41
44. Rights Upon Lease Execution ........................................... 41
45. Counsel Fees .......................................................... 41
46. Landlord-Tenant Relation .............................................. 42
47. Quiet Enjoyment ....................................................... 42
48. (Intentionally Deleted) ............................................... 42
49. Terminology And Miscellaneous ......................................... 42
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PREAMBLE
The Landlord enthusiastically welcomes the Tenant as a premier restauranteur of
national prominence. The Corps of Cadets Armory and Castle, which is the site of
the leased Premises, is an extraordinary location with unique architecture and a
center of energetic commerce. Through the provisions of this Lease the Tenant
and this extraordinary property will certainly evolve into one of the most
outstanding destinations within the City of Boston.
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DEFINITIONS
The below capitalized words and phrases as used throughout his Lease shall be
defined as follows:
Fully Opened For Business: Fully Opened For Business shall have the meaning
expressed in section 4.5 of this Lease.
Tenant's Quality Standards: Tenant's Quality Standards shall mean: (1)
Tenant's quality and selection of prepared meals
and menu items, interior restaurant decorum and
restaurant operation, shall be no less than the
quality as presently exist at the Xxxxx &
Wollensky restaurant located at 00xx Xxxxxx and
3rd Avenue, New York City, New York, and (2) all
restaurant tables shall be covered with a
tablecloth.
Lease Commencement Date: See section 3.1 of this Lease.
Rent Commencement Date: Rent Commencement Date shall mean the date that
is the earliest of the following: December 1,
2001; or the date Tenant opens its business to
the public at the Premises.
Rent: Rent shall mean and include any and all payments
to be made by Tenant to Landlord under this
Lease for the Premises, including without
limitation, Base Rent, Percentage Rent and
Additional Rent.
Base Rent: Base Rent shall have the meaning expressed in
section 4.1 of this Lease.
Additional Rent: Additional Rent shall have the meaning expressed
in section 4.6 of this Lease.
Percentage Rent: Percentage Rent shall have the meaning expressed
in section 4.2 of this Lease.
Exhibit A: Plan of the Premises
Exhibit B: Lease Guarantee
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1. PARTIES
SaunStar Operating Co., LLC, a Delaware limited liability company, acting
by and through its agent, Xxxxxxxx Real Estate Corporation, having an
address of 00 Xxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX 00000-0000 (the
"Landlord"), which expression shall include its successors, and assigns
where the context so requires, does hereby grant and demise a lease of the
below defined Premises to the S & W OF BOSTON LLC, a Delaware limited
liability company having an address of 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, X.X. 00000 ("Tenant").
2. PREMISES
The Premises demised by this lease is bounded and described on the plan
annexed hereto as Exhibit A (hereinafter, the "Premises"), being the
basement level through to the top floor in the structure commonly known as
the Armory Headhouse, together with the flat roof section that is directly
above the 4th floor of the Armory Headhouse, where the Premises are part
of a building known as the Corps of Cadets Armory and Castle ("Building"),
which Building has an address of 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. Tenant acknowledges that the sole purpose of the
Exhibit A is to identify the location of the Premises within the Building.
LANDLORD MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACTUAL USABLE OR
RENTABLE SQUARE FOOTAGE OF THE PREMISES, INCLUDING AS MAY BE SHOWN ON
EXHIBIT A.
Excepted and excluded from the Premises are all Common Areas and Common
Facilities (being defined as common lobbies, hallways, stairways, utility
lines, pipes, wires and associated equipment and sanitary facilities in
the Building that serve the Building or other tenants in the Building)
whether or not physically located within the Premises, and all perimeter
demising walls, ceilings and floors of the Premises, except the inner
surfaces thereof but the entry doors to the Premises, the roof over the
Premises and window frames and glass are not excluded from the Premises
and are a part thereof for all purposes. Tenant agrees that throughout the
Term the Landlord shall have the right to enter the Premises in order to
install, replace, maintain, repair, alter, improve or expand, (but in such
manner as to reduce to a minimum interference with Tenant's use of the
Premises) such Common Areas and Common Facilities provided any such
installations of Common Facilities within the Premises are placed above
Tenant's drop ceiling, through chase columns, or below the floor. Except
in an emergency, Landlord shall only enter the Premises for such purposes
during the non-business hours of Tenant.
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3. TERM
3.1 Initial Term
This Lease shall be a binding obligation of the parties hereto upon full
execution and delivery of this instrument. The Landlord shall deliver the
Premises vacant to the Tenant, in its as-is condition, on the date that is
15 calendar days after the date that all contingencies expressed in
Article 36 have expired without Tenant having provided a valid Termination
Notice (as defined in Article 36), which date of delivery of the Premises
is sometimes referred to as the "Lease Commencement Date", and the Term of
this Lease shall thereafter end at 11:59 p.m. on September 30, 2016
("Initial Term"), subject to extension pursuant to paragraph 3.2. As used
in this Lease, "Term" shall mean and include both the Initial Term stated
in this paragraph and any extensions thereto as provided in paragraph 3.2.
3.2 Automatic Extension
The Initial Term of this Lease, as specified in paragraph 3.1 above, shall
automatically extend without necessity of a writing for one additional
time period of (5) years ("Extended Term") commencing October 1, 2016 and
ending at 5:00 p.m. on September 30, 2021, unless, either the Landlord or
Tenant provides a written notice of cancellation to the other party, which
written notice to be effective must be received at any time between
January 1, 2015 and December 31, 2015. Upon timely receipt of a written
notice of cancellation received within the foregoing time frame, the Term
hereof shall end on the date specified in paragraph 3.1 above. There shall
be no further extension in the Term of this Lease. Notwithstanding the
foregoing, the Landlord may not issue a written notice of cancellation if
both of the following conditions exist: (1) the Tenant is not in default
at any time during calendar year 2015 and (2) the average for annual Gross
Sales based on calendar years 2012, 2013 and 2014 is equal to or greater
than Fifteen Million Dollars ($15,000,000.00).
4. RENT
Tenant shall pay all Rent to Landlord at the address of Landlord stated in
Article 1 above (or such other address as Landlord may hereinafter
designate in writing), which Rent shall be due and payable on a monthly
basis, in advance, due on the first day of each calendar month throughout
the Term (unless a different payment schedule is expressly stated below),
and without offset or deduction for any reason whatsoever.
4.1 Base Rent
Commencing on the Rent Commencement Date and continuing thereafter
throughout the entire Term of the Lease, and in addition to all other Rent
payable under this Lease,
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Tenant shall pay to the Landlord the following annual amounts as "Base
Rent", payable in equal monthly installments in arrears, due and payable
on the tenth (10) day of each calendar month throughout the Term:
From the Rent Commencement Date through November 30, 2003, annual Base
Rent shall equal $300,000.00;
From December 1, 2003 through November 30, 2004, annual Base Rent shall
equal $500,000.00;
From December 1, 2004 through to the end of the Initial Term, annual Base
Rent shall equal $600,000.00.
From and during the Extended Term as defined in Section 3.2, through to
the end thereof, annual Base Rent shall equal $750,000.00.
4.2 Percentage Rent
In addition to all other Rent payable under this Lease, and commencing on
the Rent Commencement Date and continuing thereafter throughout the entire
Term of the Lease, Tenant shall pay to the Landlord the amount, if any,
that is determined from the below calculations, and which amount shall be
known as "Percentage Rent".
4.2.1 Quarterly Percentage Rent Payments
On the first (1st) day of each January, April, July and October throughout
the Term, (the interval between each of the foregoing dates hereinafter
referred to as the "Quarterly Percentage Rent Period") the Tenant shall
calculate the amount owing, if any, as quarterly Percentage Rent
("Quarterly Percentage Rent") based on the following calculation:
(1) Tenant shall calculate the dollar amount that equals Five Percent (5%)
of the total Gross Sales (defined below) for the then current Quarterly
Percentage Rent Period. The product of the foregoing calculation shall be
the "Gross Percentage Rent".
(2) The Gross Percentage Rent amount shall be compared to the total Base
Rent paid by the Tenant for the same Quarterly Percentage Rent Period, and
the dollar amount (if any) that the Gross Percentage Rent exceeds the
comparable total Base Rent shall be the amount Tenant shall pay Landlord
as Quarterly Percentage Rent for the quarter. All payments of Quarterly
Percentage Rent shall be due on the fifteenth (15th) day of each January,
April, July and October throughout the Term. By way of example only, for
the Quarterly Percentage Rent Period January 1 through March 31, if total
Gross Sales were $1,600,000.00, then Gross Percentage Rent would be
$80,000.00. If total Base Rent paid during the same Quarterly Percentage
Rent Period is $75,000.00, then the Tenant would pay $5,000.00 ($80,000.00
- $75,000.00) as Quarterly Percentage Rent.
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4.2.2 Annual Adjustment in Percentage Rent
Tenant's payments of Quarterly Percentage Rent are made based on 5% of
Gross Sales, which percentage is an estimate only that shall be adjusted
once per calendar year in accordance with the following Annual Percentage
Rent Schedule (annual shall mean calendar year). Payments to be made
pursuant to the annual adjustment shall be known as the "Annual Percentage
Rent".
Annual Percentage Rent Schedule
If annual Gross Sales are $7,500,000.00 or less, then Annual Percentage
Rent shall be the greater of: (a) annual Base Rent or (b) Five Percent
(5%) of annual Gross Sales;
If annual Gross Sales are between $7,500,000.01 and $11,000,000.00, then
Annual Percentage Rent shall be the greater of (a) annual Base Rent or (b)
Six Percent (6%) of annual Gross Sales;
If annual Gross Sales are $11,000,000.01 or more, then Annual Percentage
Rent shall be Seven Percent (7%) of annual Gross Sales;
Concurrent with Tenant delivering its Annual Statement of Gross Sales (see
Section 4.3), Tenant shall calculate (based on the Annual Percentage Rent
Schedule) the Annual Percentage Rent amount, and shall compare said Annual
Percentage Rent amount to the sum total of all Quarterly Percentage Rent
payments actually made to Landlord during the same calendar year. If the
sum all of Quarterly Percentage Rent payments is greater than the Annual
Percentage Rent amount, then Tenant shall apply the excess as a credit
toward the next Quarterly Percentage Rent payment(s) until fully
amortized. If the sum all of Quarterly Percentage Rent payments is less
than the Annual Percentage Rent amount, then Tenant shall pay the
deficiency in full with its next payment of Base Rent.
4.3 Accounting and Record Keeping
(a) Prior to 5:00 p.m. on each Thursday of every calendar week throughout the
Term, Tenant shall deliver in hand to Landlord a true and correct
statement signed by Tenant, setting forth Tenant's Gross Sales derived
from the business conducted at, upon, or from the Premises by Tenant
during the preceding calendar week (and for all prior weeks for which no
such statement has been delivered). These statements will be in a form
reasonably acceptable to the Landlord.
(b) Tenant agrees to submit to Landlord on or before the tenth (10th) day
following the end of each month during the Term hereof a written
statement, in a form reasonably acceptable to Landlord, signed and sworn
to by an authorized officer of Tenant to be true and correct, showing the
amount of Gross Sales derived from the business conducted at, upon, or
from the Premises by Tenant during the preceding calendar
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month, and an itemization of all permissible deductions therefrom
(hereinafter, the "Monthly Statement of Gross Sales"). Tenant shall
deliver to Landlord within (120) days after December 31 of each and every
year of the Term, annual statements of Gross Sales having no less than the
same information as provided in the Monthly Statement of Gross Sales
(hereinafter, the "Annual Statement of Gross Sales"). The Annual Statement
of Gross Sales shall be sworn to by Tenant's chief financial officer.
Tenant shall also deliver to Landlord such certified annual financial
statement of Tenant as Tenant may have prepared and certified by an
independent certified public accountant, which delivery shall be made
within (30) days of the Tenant receiving said certified financial
statement. The acceptance by Landlord of payments of Percentage Rent or
reports thereof shall be without prejudice and shall in no event
constitute a waiver of Landlord's right to claim a deficiency in the
payment of such Percentage Rent or to audit Tenant's books and records, as
hereinafter set forth.
(c) Landlord, its auditor or other designated representative shall have the
right, no more than once a year, to audit all pertinent books and records
of Tenant for the purpose of verifying monthly and annual statements
submitted by Tenant to Landlord and the actual amount of Gross Sales (as
herein defined). All expenses of such audit shall be borne by Landlord
unless such audit shall disclose a reporting error with respect to any
annual statement of four percent (4%) or more on the part of Tenant,
unless Tenant can establish to Landlord's satisfaction that the
discrepancy resulted from an unintentional clerical, mechanical or
computer error. In the event any two audits (conducted at any time
throughout the Term) both disclose a reporting error with respect to any
annual statement of six percent (6%) or more on the part of Tenant, unless
Tenant can reasonably establish that each discrepancy resulted from an
unintentional clerical, mechanical or computer error, then upon the second
occurrence Landlord shall have the right, exercised within forty-five (45)
days of receipt by Landlord of the results of such audit, in addition to
the rights set forth above and any other rights and remedies it may have
under Article 19 of this Lease, to terminate this Lease upon thirty (30)
days prior written notice to Tenant. In the event Tenant shall be
delinquent in furnishing to Landlord any monthly or annual sales statement
or statements required hereunder, for a period of ten (10) days or more
after Landlord gives written notice of such delinquency to Tenant, then
Landlord shall have the right, to forthwith conduct an audit as provided
above and any and all reasonable charges occasioned by reason thereof
shall be the sole obligation of Tenant and payable on demand as Additional
Rent.
(d) Tenant agrees to prepare, keep and maintain for a period of not less than
three (3) years, following the end of each calendar year, complete and
accurate books of account and records of, but not limited to, all
purchases and receipts of merchandise, inventories, and all sales and
other transactions by Tenant from which Tenant's Gross Sales at, upon, or
from the Premises can be determined, including permitted deductions
therefrom; and whereby such books of account and records shall at all
times meet the standard required for a permanent and auditable record
sufficient for an independent accountant, in accordance with generally
accepted auditing practices, to conduct an audit of Gross
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Sales and permitted deductions and to certify as to the audit's results.
Tenant shall further create and keep for at least three (3) years
following the end of each calendar year, all pertinent original sales
books and records, all records evidencing the payment of all meal taxes,
and all other originals of such records that Tenant creates in its normal
course of business that documents Gross Sales and permitted deductions
therefrom.
(e) Landlord agrees that it will not unreasonably refuse to allow Tenant to
transmit its Gross Sales reports electronically, and to maintain its books
and records in computerized form, provided that (i) sales reports are
transmitted by disc or modem transmission to Landlord's data center, in
either case in a manner compatible with Landlord's computer system and
approved in writing by Landlord, (ii) print copies of such Gross Sales
reports are furnished to Landlord within thirty (30) days after the
request (which request may be made at any time within one year after the
electronic sales reports are furnished by Tenant to Landlord); (iii)
Tenant's computerized books and records provide the same level of
information as the print books and records described above, are retained
for the full three year record retention period provided for herein, and
are made accessible for Landlord's inspection on request and (iv) original
print copies of any of such books and records are made available to
Landlord's representatives who are engaged in inspecting Tenant's books
and records, as provided herein, promptly upon request.
(f) Landlord covenants and agrees with Tenant that the Landlord will keep and
treat as strictly confidential all information and data obtained from the
Tenant's reports of Gross Sales. Landlord shall not disclose such
information nor disseminate copies or excerpts of all or any portion of
Tenant's reports of Gross Sales except (i) to lending institutions from
which the Landlord has, or in good faith intends to seek, financing, (ii)
to a prospective transferee of Landlord's interest in the Building, (iii)
in connection with litigation between Landlord and Tenant arising
hereunder, (iv) in compliance with Subpoenas or Judicial Orders duly
issued to Landlord, or (v) in any registration statement filed with the
Securities and Exchange Commission or other similar body. Unless
prohibited by law, any disclosure in accordance with the foregoing shall
require that the party receiving the information not further disclose said
information.
4.4 Definition of Gross Sales
(a) The phrase Gross Sales as used in this Lease shall mean the dollar
aggregate of:
(1) the entire amount of the price received by Tenant for all foods,
beverages, goods, services, wares, licensing or vending rights and
merchandise that is sold, leased, licensed or delivered, and all charges
for all services sold or performed, that are conducted at, upon, or from
the Premises, whether made for cash, by check, or credit, charge account
or otherwise, without reserve or deduction for inability or failure to
collect the same, including but not limited to transactions: (i) where the
orders therefor originate at or are accepted by Tenant in the Premises but
delivery or performance thereof is made from or
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at the Premises shall be deemed as made and completed therein, even though
the payment of account may be transferred to another office for
collection, and all orders which result from solicitation off the
Premises, but which are conducted by personnel operating from or reporting
to or under the control or supervision of any employee of Tenant shall be
deemed part of Tenant's Gross Sales; (ii) pursuant to mail, telephone,
telegraph, telefax, Internet, or other similar orders received, advertised
or billed at or from the Premises; (iii) by means of mechanical or other
vending devices (but if Tenant licenses such vending devices to a
third-party unrelated to Tenant or Guarantor who receives the entire sale
price, only the sum paid by said third party to Tenant shall be included
in Gross Sales. For example, if Tenant licenses cigarette vending machines
to a local vendor, the amount paid by the vendor to Tenant would be
included in Gross Sales and not the cigarette sale price collected by the
vendor from its machines); (iv) the entire sum actually paid to Tenant by
a third-party unrelated to Tenant or Guarantor, where Tenant arranged for
a sale of goods or services by said third party who delivers such goods or
services from a location other than the Premises (for example, Tenant
arranges for a restaurant customer to purchase unprepared food from
Tenant's supplier, the amount paid by the supplier to Tenant would be
included in Gross Sales and not the amount paid by the customer to the
supplier); (v) sales originating from whatever source and which Tenant in
the normal and customary course of Tenant's operations would credit or
attribute to Tenant's business conducted in the Premises; and
(2) all monies or other things of value received by Tenant from Tenant's
operations at, upon or from the Premises which are neither included in nor
excluded from Gross Sales by the other provisions of this definition, but
without any duplication, including without limitation, finance charges,
cost of gift or merchandise certificates and all deposits not refunded to
customers. Each charge or sale upon installment or credit or lay away, so
called shall be treated as a sale for the full price in the month during
which such charge or sale is made irrespective of the time when Tenant
shall receive payment (whether full or partial) therefor.
(b) Each sale shall be treated as a sale in the month during which the
transaction was initially entered into.
(c) For the purposes of ascertaining the amount of Gross Sales, the following
may be deducted from Gross Sales but only if itemized on the statement of
Gross Sales: (i) cash or credit refunds, allowances and adjustments made
upon transactions included within Gross Sales but not exceeding the
selling price of the item returned by the purchaser and accepted by
Tenant; (ii) the amount of any city, county, state, or federal sales,
meals, luxury or excise tax on such sales provided such tax is both added
to the selling price and paid to the taxing authority by Tenant, however,
no franchise or capital stock tax and no income or similar tax based upon
income, profits or Gross Sales as such, shall be deducted from Gross Sales
in any event whatsoever; (iii) sales of Tenant's removable trade fixtures
after use by Tenant in the Premises; (iv) gratuities and tips paid over to
Tenant's employees by restaurant patrons; (v) insurance proceeds from
casualty and business losses
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except for business interruption insurance or other insurance to the
extent that such insurance compensates Tenant for loss of sales; (vi)
meals to employees of Tenant if sold at a discount; (vii) the amount of
uncollectible credit accounts (not including any collection costs, but any
subsequent collection of said accounts shall be included in Gross Sales)
and (viii) fees charged by credit card companies, and (ix) complimentary
meals, coupons, and discounts to the extent there is no payment therefor.
4.5 Definition of Fully Opened For Business
As used in this Lease, the phrase "Fully Opened For Business" shall mean
that: all of Tenant's Work required by Article 39 has been completed, the
Tenant shall be in full compliance with all Minimum Tenant Operating Hours
and the Operating Covenant expressed at paragraph 8.2 herein, all required
governmental approvals and permits have been issued, the Tenant has
received a license to sell (for consumption on the Premises) all types of
alcoholic beverages and is selling all types of alcoholic beverages, and
the Tenant is otherwise using 100% of the Premises for the operation of
its restaurant consistent with Tenant's Quality Standards.
4.6. Additional Rent
In addition to Percentage Rent and all other rent charges reserved
hereunder and as part of the total rent to be paid, Tenant agrees to pay
Landlord, commencing on and after the Rent Commencement Date and
continuing thereafter throughout the entire Term of the Lease, on a
monthly basis in advance, due and payable on the first day of each
calendar month without deduction or offset for any reason whatsoever, the
amount due as Additional Rent. Without limiting any other provision of
this Lease, it is expressly understood and agreed that the Tenant's
participation in real estate taxes over the Tax Base Year, and all other
charges which the Tenant is required to pay hereunder (excluding only
Percentage Rent), together with all interest and penalties that may accrue
thereon, shall be deemed to be Additional Rent, and in the event of
nonpayment thereof by the Tenant, the Landlord shall have all of the
rights and remedies with respect thereto as would accrue to the Landlord
for nonpayment of Rent.
(a) Landlord shall have the right, but shall not be required to do so, to pay
such sums or do any act which requires the expenditure of monies which may
be necessary or appropriate by reason of the failure or neglect of Tenant
to perform any of the provisions of this Lease, and, in the event of the
exercise of such right by Landlord, Tenant agrees to pay to Landlord
within fifteen (15) days after notice thereof, all such sums as Additional
Rent; and if Tenant shall default in such payment, Landlord shall have the
same rights and remedies as Landlord has hereunder for the failure of
Tenant to pay rent. Except as forth herein, any obligations of Tenant, as
set forth herein (including, without limitation, rental and other monetary
obligations, repair obligations, and obligations to indemnify Landlord),
shall survive the expiration or earlier termination of this Lease, and
Tenant shall immediately reimburse Landlord for any expense incurred by
Landlord, including Tenant's
14
failure to satisfy any such obligation (notwithstanding the fact that such
cure might be effected by Landlord following the expiration or earlier
termination of this Lease).
5. (Intentionally Deleted)
6. TAXES
6.1 As used in this Lease, Taxes shall mean the real estate taxes, assessments
and betterments that are imposed upon the Building and the land upon which
it stands, which are or shall be imposed by Federal, State, Municipal or
other authorities, and which are or may become a lien upon the Building.
In no event shall the word Taxes be deemed to include any of Landlord's
income taxes or the estate, inheritance, or gift taxes, or taxes upon any
personal property of the Landlord. Landlord may, at its option, avail
itself of the benefit of the provisions of any statute or ordinance
permitting any assessments for public betterments or improvements to be
paid over a period of time. Whether or not Landlord so elects, Taxes shall
include only the current annual installment of any such assessment and the
interest on unpaid (but not delinquent) installments.
Throughout the Term, Tenant will pay to Landlord as Additional Rent
hereunder, when and as designated by notice in writing by Landlord, eighty
percent (80%) of the total amount that Taxes increase over the Tax Base
Year (see paragraph 6.2 below as to increases due to Tenant alterations).
For purposes of the Lease, the Tax Base Year shall mean the City of
Boston's fiscal tax year ending June, 2001. By way of example only, if
total Taxes as of the Tax Base Year is $1,000.00, and total Taxes as of
June 2001 is $1,200.00, the Tenant's Additional Rent payment for Taxes
would be $160.00 (calculated $200 increase x .80 = $160). If the Landlord
obtains an abatement of any such excess real estate tax, a proportionate
share of such abatement, less the reasonable fees and costs incurred in
obtaining the same, if any, shall be refunded to the Tenant.
If due to a future change in the method of taxation any franchise, income
or profit tax shall be levied against the Landlord in substitution for or
in lieu of any tax which would otherwise constitute a real estate tax or a
specific tax on rentals from the Building shall be levied against the
Landlord, such franchise, rental, income or profit tax shall be deemed to
constitute "Taxes" for the purposes hereof.
The amount so to be paid to Landlord for Taxes shall be an amount from
time to time reasonably estimated by Landlord to be sufficient to cover,
in the aggregate, a sum equal to Tenant's portion of such Taxes for each
fiscal year during the Term of this Lease. If payments theretofore made
for such fiscal year by Tenant exceed Tenant's share of the Taxes,
Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to Landlord); but, if
Tenant's share of the Taxes is greater than
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payments theretofore made on account for such period, Tenant shall make
suitable payment to Landlord promptly upon written demand by the Landlord
(but not later than ten (10) days after such demand).
Payments by the Tenant to the Landlord on account of such taxes shall not
be considered as being held in trust, in escrow, or the like, by the
Landlord; it being the express intent of the Landlord and the Tenant that
the Tenant shall in no event be entitled to receive interest upon, or any
payments on account of earnings or profits derived from, such payments by
the Tenant to the Landlord.
6.2 Tenant shall pay 100% of: (1) meal taxes, (2) sales' taxes and (3) any
other taxes and governmental impositions of whatever kind or nature
imposed with respect to the conduct of Tenant's business on the Premises
or with respect to personal property owned or used by Tenant in or on the
Premises (including, without limitation, taxes or licensing fees on
Tenant's signs on the exterior of the Premises). Tenant shall reimburse
Landlord forthwith upon request, if Landlord shall have paid any such tax
in the first instance, and Landlord shall provide Tenant with notice prior
to any such payment.
7. UTILITIES
The Tenant shall pay, as they become due, all bills for electricity, gas,
water and sewer, and other utilities (whether they are used for furnishing
heat, ventilation, and/or air conditioning, or any other purposes) that
are furnished to the Premises. Tenant shall make arrangements for the
connection of any and all utilities at the Premises with the respective
local utility company (including, without limitation, the cost of
installation and maintenance for separate meters); cause all bills for
electricity and other utilities to be put in Tenant's name; shall pay
directly to any utility provider, as they become due, all bills for
electricity and utilities that are furnished to the Premises which shall
be separately metered (at the sole cost and expense of the Tenant); and
shall indemnify and hold Landlord harmless therefrom.
The Landlord is not providing any utility equipment or utility services to
the Premises.
The Tenant shall be responsible to provide all utilities, services and
related equipment that the Landlord has not expressly covenanted to
provide in this Article 7. The installation and maintenance thereof shall
be the Tenant's sole obligation, provided that such installation shall be
subject to the written consent of the Landlord, which consent Landlord
shall not unreasonably withhold or delay.
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8. USE OF LEASED PREMISES
8.1 Permitted Use: The Tenant shall use the Premises only for the purpose of
an upscale, high quality, white tablecloth restaurant consistent with
Tenant's Quality Standards, with alcoholic and non-alcoholic beverages
consumed on the Premises, and for no other purposes.
8.1.1 Tenant shall operate its business under the Trade Name of Xxxxx &
Wollensky. Tenant may change the name of its restaurant after the Rent
Commencement Date to any of the following Trade Names currently owned or
licensed by Tenant: The Post House, The Manhattan Ocean Club, Cite,
Xxxxxxx & Purcelli, or Park Ave Cafe. Tenant hereby represents and
covenants that it has full legal authority to use its Trade Name and the
Trade Name does not violate any law, rule, order or regulation of the
federal, state, or municipal government or other duly constituted public
authority or the rights of any third party. Tenant further agrees to take
all actions reasonably necessary to protect its authority to use the Trade
Name throughout the Term of this Lease.
8.2 Tenant Operating Covenant
Commencing with the Rent Commencement Date and continuing throughout the
Term, Tenant covenants and agrees that it shall: (1) ensure 100% of the
Premises continuously remain Fully Opened For Business, consistent with
Tenant's Quality Standards, during the hours of: 11:30 A. M. to 11:00
P. M., five (5) days per week, and 5:00 P.M. to 11:00 P.M. on a sixth
(6th) day per week, 52 weeks per calendar year, excepting only, Tenant may
close its restaurant for no more than (3) legal holidays in Massachusetts
that are not reasonably profitable to operate (hereinafter referred to as
"Minimum Tenant Operating Hours"); (2) keep its restaurant continuously
and fully equipped and stocked with high quality salable meals, alcoholic
and non-alcoholic beverages; (3) keep its restaurant fully staffed with
competent and courteous employees; (4) conduct its business, including
advertising to the public, only under the Tenant's trade name Xxxxx &
Wollensky; (5) use its best efforts to achieve a maximum profitable sales
volume in, upon, or from the Premises; (6) operate its business at all
times in a first-class manner; and (7) to promptly notify Landlord of any
unsafe conditions. The foregoing covenant shall be referred to as the
"Operating Covenant".
Notwithstanding the foregoing Operating Covenant, but at all times subject
to Article 12 and Landlord's prior written approval which approval shall
not be unreasonably withheld or delayed, the Tenant shall not be in
violation of the Operating Covenant if: (1) Tenant undertakes at its cost
not more than two renovation projects of the Premises during the Term
hereof, with each renovation project scheduled to be completed in the
minimum possible amount of time but in no event longer than twenty-one
(21) days, and scheduled with the least possible disruption to the
Tenant's business at the Premises.
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Landlord and Tenant agree that the Tenant's full and complete satisfaction
of the Operating Covenant at all times during the Term of this Lease goes
to the essence of the parties' agreement hereunder, and that Tenant's
failure to satisfy its Operating Covenant will result in automatic
deprivation to Landlord for which Landlord's remedies hereunder or at law
may not be adequate. In the event that the Tenant has been in violation of
the Operating Covenant for a cumulative total of five (5) days occurring
at any time during a calendar year (whether or not consecutive days), then
as liquidated damages, the monthly installment of Base Rent shall be
increased for the entire month of each and every month in which the fifth
and any subsequent day of the violation occurs to an amount that is (150%)
of the then payable monthly installment of Base Rent. The liquidated
damages provided in the previous sentence shall not be in lieu of
Landlord's other remedies hereunder or at law, and acceptance by Landlord
of such shall not be deemed an election of remedies or preclude Landlord
from seeking any other remedy for said violation or a subsequent violation
including without limitation, the remedies forth in Article 19.
Tenant acknowledges that, in all events, Tenant is responsible for
providing security to its own Premises and personnel, and agrees to save
Landlord (including Landlord's agents, employees, contractors and all
other persons for whose actions Landlord may be legally responsible),
harmless from any claim for injury to person or damage or theft to
property asserted by or against any of the personnel and employees,
guests, invitees or agents of Tenant which is suffered or occurs in or
about the Premises, excluding only such claims that were caused by the
negligence or willful misconduct of the Landlord (including Landlord's
agents, employees, contractors and all other persons for whose actions
Landlord may be legally responsible). In connection with the foregoing,
Tenant understands and acknowledges that the Building consists of a mixed
use by both retail and office tenants, which tenants and their invitees
may have twenty-four (24) hour access to the Building.
9. COMPLIANCE WITH LAWS
(a) The Tenant agrees and covenants that no trade or occupation shall be
conducted in the Premises or use made thereof which will be unlawful,
improper, or contrary to any law or any municipal by-law or ordinance or
regulation or standard. The Tenant further agrees and covenants that
unless expressly set forth as an obligation of Landlord herein, it shall
fully comply with all governmental laws and regulations applicable to its
tenancy under this Lease and specifically to the conduct of its business
on the Premises. Without limiting the generality of the foregoing: (a) the
Tenant shall not bring or permit to be brought or kept in or on the
Premises or elsewhere on the Landlord's property any hazardous, toxic,
inflammable, combustible or explosive fluid, material, chemical or
substance, including, without limitation, any item defined as hazardous
pursuant to Chapter 21E of the Massachusetts General Laws, except for
such types and in such quantities as are reasonably necessary for Tenant's
business; (b) the Tenant shall be responsible for compliance with
requirements imposted by the Americans with Disabilities Act and any
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similar laws or regulations applicable to real property in the City of
Boston, Massachusetts (in the aggregate, the "Act"), relative to the
layout of the Premises and any work performed by the Tenant therein; and
(c) the Tenant shall not perform any act or carry on any practice which,
may injure the Premises, or any other part of the Building, or adversely
affect the proper and economical rendition of any service required to be
furnished to any tenant.
(b) Each party shall indemnify, defend, and hold harmless the other,
including, its directors, officers, members, employees and agents from and
against any and all claims, demands, or causes of action (including the
reasonable costs or expenses of defending against the aforesaid) that
arise from an actual release of Hazardous Substances in, on, or about the
Building or Premises that: (1) occurred at any time Tenant is in
possession of the Premises, (2) said release was caused by the Landlord or
Tenant, as the case may be, including agents, contractors or employees;
and (3) said release was not caused by the party seeking indemnification.
Nothing contained herein shall be construed as creating a warranty or
indemnity by Landlord as to the present condition of the Premises or
Building.
(c) From and after the Commencement Date and provided compliance is lawfully
ordered by a governmental entity, the Landlord shall make, at Landlord's
cost and expense, all alterations and additions to the Common Areas, as
may be lawfully ordered by a governmental entity to bring the Common Areas
in compliance with the Act.
(d) As of the date of this Lease, Landlord has no knowledge of any actual or
threatened release of a Hazardous Substance that may adversely affect the
Tenant or the Premises.
10. FIRE INSURANCE
The Tenant shall not permit any use of the Premises which will make
voidable any insurance on the Building of which the Premises are a part,
or on the contents of said Building or which shall be contrary to any law
or regulation from time to time established by the New England Fire
Insurance Rating Association, or any similar body.
11. MAINTENANCE
11.1 Tenant's Obligations
Tenant agrees to put and maintain the Premises in a first class condition
(including, but not limited to, performance of Tenant's Work pursuant to
Article 39), damage by fire and other casualty only excepted, and whenever
necessary, to replace plate glass and other glass therein, acknowledging
that the Tenant is taking the Premises in "as is" condition (including the
heating, ventilation and air conditioning system). Tenant shall perform
all maintenance not expressly covenanted to be performed by Landlord.
Tenant shall not
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permit the Premises to be overloaded, damaged, stripped or defaced, nor
suffer any waste. Tenant shall not place on the exterior of exterior
demising walls (including both interior and exterior surfaces of windows
and doors) or on any part of the Building outside the Premises, any signs,
symbol, advertisement or the like visible to public view outside of the
Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed, and the
issuance of any required governmental permits or approvals.
Tenant shall cause garbage and refuse to be properly stored within the
Premises and removed by the refuse at Tenant's sole cost and expense.
Until such removal is effected, Tenant shall keep all garbage or refuse
suitably covered so that the same is not visible to the public, and Tenant
shall prevent pest and vermin infestation of same.
Tenant shall enter into an extermination contract with an extermination
company of national reputation which will provide the Premises with weekly
extermination. The entire cost for this service shall be paid by Tenant
and a copy of the contract must be submitted by Tenant to Landlord at
least ten (10) days prior to the opening of its operation or the Rent
Commencement Date of this Lease, whichever is first to occur.
Tenant shall, at its own cost and expense, employ first-class contractors
(duly licensed and trained for the applicable equipment) to perform all of
Tenant's repair and maintenance obligations for the heating/cooling and
ventilating systems (HVAC), all grease traps, restaurant fire suppression
system, smoke and heat detector systems and kitchen exhaust system, which
systems shall be maintained in a first class condition, consistent with
all manufacturer's specifications and all applicable governmental
regulations. A copy of each such contract must be submitted by Tenant to
Landlord upon written demand therefor at least ten (10) days prior to the
opening of its operation or the Rent Commencement Date of this Lease,
whichever is earlier. If the Tenant fails to employ a contractor for the
purposes described herein above, then the Landlord may employ such a
contractor and the Tenant shall be responsible for the cost thereof, which
cost shall be charged as Additional Rent hereunder and shall be due and
payable upon demand. Unless a greater frequency or scope off maintenance
is otherwise specified in writing by the manufacturer of any such
equipment such maintenance shall include (i) at least semi-annual
inspections and cleaning of said units and systems, together with such
adjustments and servicing as each such inspection discloses to be required
and (ii) all repairs, testing and servicing as shall be necessary or
reasonably required by Landlord's insurance underwriter.
11.2 Landlord's Obligations
The Landlord agrees to maintain the structure of the Building (defined as
and limited to the foundation and load-bearing structural walls but
excluding all roofs that are located over the Premises) of which the
Premises are a part, in the same condition as it is as of the date of this
Lease, reasonable wear and tear, taking by eminent domain and damage
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by fire and other casualty only excepted, unless such maintenance is
required because of acts or omissions of the Tenant or those for whose
conduct the Tenant is legally responsible.
12. ALTERATIONS - ADDITIONS
12.1 General
The Tenant shall not make structural alterations or additions to the
Premises. As used in this Article, all alterations that may be permissibly
made by Tenant is referenced as the "Work". Tenant may make non-structural
alterations that do not require a Building Permit or other Government
Approval, and costs less than $25,000.00, without Landlord's prior written
consent. Tenant may make all other non-structural alterations, provided
the Landlord consents thereto in writing, which consent shall not be
unreasonably withheld, conditioned or delayed; and further provided that
(i) the Tenant shall first give written notice to Landlord at least
fifteen (15) business days prior to the commencement of such Work
providing Landlord with a copy of detailed stamped architectural plans
stamped by an architect duly licensed in the Commonwealth of Massachusetts
and specifying the proposed Work, the commencement and approximate
completion dates thereof, the names and addresses of any contractors
performing the Work and the necessary certificates of insurance naming the
Landlord and any Agent of Landlord as additional insureds have been
delivered to Landlord and (ii) such Work shall be made in accordance with
all applicable laws and in a first-class workmanlike manner and in
accordance with this Lease. All such allowed Work (including the
alterations and improvements made by Tenant under Article 39 hereof) shall
be at Tenant's expense and shall be of first class quality. Tenant shall
not permit any mechanics' liens, or similar liens, to remain upon the
Premises for labor and material furnished to Tenant or claimed to have
been furnished to Tenant in connection with Work of any character
performed or claimed to have been performed at the direction of Tenant and
shall cause any such lien to be released of record forthwith without cost
to Landlord by the immediate filing of a bond pursuant to M.G.L. c. 254.
Any Work made by the Tenant shall, at the election of the Landlord, become
the property of the Landlord at the termination of occupancy as provided
herein, except for removable trade fixtures and trade equipment.
No Work shall be performed in a manner that is unreasonably disruptive to
other tenants of the Landlord in the Building, or to the public in
general, or which causes unreasonable noise, vibration, dust or is in any
manner unclean or unsightly.
12.2 Supervision
The Tenant shall supervise and direct all Work and shall be solely
responsible for and have control over safety, construction means, methods,
techniques, sequences and procedures and for coordinating a portions of
the Work. The Tenant shall secure and pay for the Building Permit and
other permits and governmental fees, licenses and
21
inspections necessary for proper execution and completion of the Work. All
contractors shall keep the Premises, the Building's Common Areas free from
accumulation of waste materials or rubbish. At completion of the Work the
Tenant shall remove from and about the Building all waste materials and
rubbish.
12.3 Indemnification
To the fullest extent permitted by law, the Tenant shall indemnify and
hold harmless the Landlord and its agents and employees from and against
all claims, damages, losses and expenses, including but not limited to,
reasonable attorney's fees, arising out of or resulting from any Work,
provided that such claim, damage, loss or expense is attributable to
bodily injury, sickness, disease or death, or to injury to or destruction
of tangible property, including loss of use resulting therefrom, but only
to the extent caused in whole or in part by negligent acts or omissions of
the Tenant or its contractors or anyone for whose acts they may be liable.
Such obligation shall not be construed to negate, abridge, or reduce other
rights or obligations of indemnity elsewhere in this Lease or which would
otherwise exist as to a party or person described in this Article.
In claims against any person or entity indemnified under this Article by
an employee of the Tenant, or its contractors, or anyone directly or
indirectly employed by them or anyone for whose acts they may be liable,
the indemnification obligation under this Article shall not be limited by
a limitation on amount or type of damages, compensation or benefits
payable under workers' or workmen's compensation acts, disability benefit
acts or other employee benefit acts.
12.4 Insurance
The Tenant shall ensure that all contractors (which includes
sub-contractors of any contractor) who will enter the Premises or the
Building, and others employed directly or indirectly by them, shall
purchase insurance which, at a minimum, shall be consistent with the
following:
(a) insurance covering workers' or workmen's compensation claims.
(b) commercial general liability insurance covering claims for personal
injury and property damage.
(c) contractor's or builder's "all risk" insurance covering property
damage and loss of use claims.
The insurance required by this Article shall be written for not less than
limits specified in Article 17 for Tenant's Insurance. Coverages, whether
written on an occurrence or
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claims-made basis, shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of
any coverage required to be maintained after final payment.
Original certificates of insurance evidencing full compliance with this
Article shall be delivered to the Landlord prior to commencement of the
Work. These certificates and the insurance policies required by this
Article shall expressly name the Landlord, Xxxxxxxx Real Estate
Corporation, SaunStar Operating Co., LLC and SaunStar Land Co., LLC, as
additionally insured, and shall contain a provision that coverages
afforded under the policies will not be canceled or allowed to expire
until at least 30 days prior written notice has been given to the
Landlord.
12.5 Massachusetts Historical Commission & Boston Landmarks Commission
The Building is subject to regulation by both the Massachusetts Historical
Commission and the Boston Landmarks Commission. In addition to Landlord's
consent, the Tenant shall receive all approvals and permits from the
Massachusetts Historical Commission and the Boston Landmarks Commission as
may be required.
13. ASSIGNMENT - SUBLEASING
13.1 The Tenant shall not assign or sublet the whole or any part of the
Premises, whether by operation of law or otherwise, without Landlord's
prior written consent which consent may be withheld in the Landlord's
absolute discretion.
13.2 Limited Right To Assign Or Sublease. Notwithstanding paragraph 13.1, and
subject to complete satisfaction of all conditions expressed herein, only
the Tenant (no subsequent assignee or sublessee of Tenant shall have any
rights under this paragraph 13.2) may assign its interest in this Lease or
sublet one hundred percent (100%) of the Premises, with Landlord's prior
written consent (which consent Landlord hereby agrees it shall provide
within 5 days upon Tenant's satisfaction of the preconditions expressed
herein), if and only if each and every of the following conditions are
fully satisfied: (i) Tenant and its Guarantor have in the aggregate sold
to a single unrelated third party a total number of Xxxxx & Wollensky
steakhouse restaurants that equal 75% of all such restaurants then
operating or under construction; (ii) the purchaser of said assets is the
proposed assignee or sublessee; (iii) the proposed assignee or sublessee
fully satisfies the Experience Provision set forth below at paragraph
13.3; (iv) the Guarantor herein remains the Guarantor of Lease, or
alternatively, a substitute guarantor is provided that is as financially
responsible and of similar good reputation as the current Guarantor is as
of the date of this Lease (as evidenced by, including without limitation,
personal, business, and banking references, and comparison of certified
financial statements evidencing equivalent net worth); (v) the proposed
assignee or sublessee is not then a tenant in the Building or in
Landlord's building known as the Boston Park Plaza Hotel & Towers and the
Xxxxxxx Building Complex (located at 00 Xxxx Xxxxx, Xxxxxx), unless such
tenant will
23
be expanding into the Premises and will not be vacating its premises by
reason of such assignment or subletting; (vi) any and all rent to be paid
by the proposed assignee or sublessee that is in excess of the Rent to be
paid under this Lease shall be paid to and retained by the Landlord; (vii)
(intentionally deleted); (viii) if a sublease, the sublease is for one
hundred percent (100%) of the Premises; (ix) Tenant is not in default
under this Lease (after the expiration of applicable notice and grace
periods) at the time it requests consent from Landlord to an assignment or
sublease; (x) Tenant's request for Landlord's consent includes copies of
all documents necessary to demonstrate that the proposed assignment or
sublease is in compliance with this Article, including without limitation:
(a) current financial statements of the proposed assignee or sublessee and
any substitute guarantor, each certified by an independent nationally
recognized certified public accounting firm and sworn to by their chief
financial officer and (b) all relevant transaction documents between
Tenant and the proposed assignee or sublessee such as the asset purchase
agreement, proposed Lease assignment document or sublease; and (xi)
notwithstanding any assignment or subletting, Tenant shall remain fully
and primarily liable for all of its obligations hereunder, unless in the
event of an assignment only, and in addition to all other security
required by this Lease, the Tenant shall be released from its obligations
upon the proposed assignee delivering a clean, irrevocable letter of
credit to the Landlord, issued by a federally insured financial
institution, in a form reasonably satisfactory to Landlord and containing
an evergreen provision that provides for automatic renewal for the then
remaining Term of the Lease, whereby said letter of credit unconditionally
secures all obligations under the Lease and is issued in an amount equal
to the total of Percentage Rent and Additional Rent that the Tenant has
paid over the preceding twelve months, but in no event issued for an
amount less than the Minimum Percentage Rent amount required by paragraph
4.2.
13.3 Experience Provision. The parties hereto acknowledge and agree that the
Landlord's compensation under this Lease, and the value and compensation
Landlord receives from the Building and Hotel, will be materially and
adversely impacted should a proposed assignee or sublessee under this
Lease not have a demonstrated management team that is experienced and
successful in the management and operation of high-end restaurants that
are equivalent to restaurants meeting the Tenant's Quality Standards under
this Lease. Accordingly, no assignment or sublease shall be consented to
by the Landlord unless the Tenant provides reasonable evidence to the
Landlord that the management team of the proposed assignee or sublessee
that will manage the restaurant on the Premises fully satisfies the
following:
1. The restaurants purchased from Tenant, including the restaurant
located on the Premises, shall be managed by a management group or
entity having no less than fifteen (15) years of direct management
experience successfully managing a chain of high-end restaurants
having no less than $30 Million Dollars in annual gross sales, and
where the restaurants were equivalent restaurants meeting the
Tenant's Quality Standards. The Landlord shall have the right to
interview and approve
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the assignee's or sublessee's "general manager", who is located at
the Premises and holds the responsibility for day-to-day restaurant
operations at the Premises, which approval by the Landlord shall not
be unreasonably withheld or delayed, and the Landlord shall have the
same right to interview and approve all successor general managers
throughout the Term.
13.4 Lease Binding On Assignee Or Sublessee. All of the provisions of this
Lease shall be fully binding on any assignee or sublessee, except wherever
in this Lease a provision is expressly stated to be inapplicable to an
assignee or sublessee such provision shall be considered deleted from the
Lease. Without limiting the generality of the foregoing, no assignee or
sublessee may itself assign this Lease or sublet the Premises.
14. SUBORDINATION/ESTOPPEL
This Lease shall be subject and subordinate to any and all mortgages,
deeds of trust and other instruments in the nature of a mortgage,
("Landlord Mortgage"), now existing or any time hereafter that may be
granted or created, and which created a lien or liens on the property of
which the Premises are a part. The Tenant shall, when requested, promptly
execute and deliver such written instruments as shall be necessary to show
the subordination of this Lease to said mortgages, deeds of trust or other
such instruments in the nature of a mortgage. Upon request from the
Tenant, Landlord agrees that it shall use its best efforts to have a
Subordination and Non-Disturbance Agreement ("SNDA") forwarded to Tenant
by a mortgagee or other grantee of a Landlord Mortgage.
At any time and from time to time, within fifteen (15) days after Landlord
or Tenant shall request the same, the other will execute, acknowledge and
deliver to the requesting party and to a mortgagee or any other party as
may be designated by the requesting party, a certificate in a reasonably
acceptable form to such party with respect to the matters required by such
party and such other matters relating to this Lease or the status of
performance of obligations of the parties hereunder as may be reasonably
requested. If a party fails to provide such certificate within fifteen
(15) days after request by Landlord, such party shall be deemed to have
approved the contents of any such certificate submitted to the requesting
party is hereby authorized to so certify.
Landlord shall provide Tenant with an SNDA from Landlord's current
mortgagee within (60) days of executing this Lease. The SNDA shall be
substantially in the form attached hereto as Exhibit C.
15. LANDLORD'S ACCESS
The Landlord or agents of the Landlord may, at reasonable times and upon
reasonable notice unless in an emergency, enter to view the Premises and
may remove placards and signs not approved and affixed as herein provided,
and make repairs, alterations capital
25
improvements and any other work as Landlord should elect to do, and may
show the Premises to others, and, at anytime within twelve (12) months
before the expiration of the Term, may affix to any suitable part of the
Premises that is reasonably acceptable to Tenant a notice for letting or
selling the Premises or Building of which the Premises are a part and keep
the same so affixed without hindrance or molestation. For purposes of this
Article only, an "emergency" shall be deemed to exist if, in the good
faith judgment of Landlord, prompt action is needed in order to prevent
death, bodily injury or property damage, or violation of governmental law,
regulation or order. Except in an emergency, Landlord shall use its
reasonable diligent efforts to perform any such repairs during the
non-business hours of the Tenant and in such a manner so as not to
materially and adversely interfere with the normal operation of the
Tenant's business.
16. INDEMNIFICATION AND LIABILITY
The Tenant shall indemnify, save and hold the Landlord harmless from all
loss and damaged occasioned by anything occurring on the Premises unless
caused by the negligence or willful misconduct of the Landlord.
17. TENANT'S INSURANCE
The Tenant shall maintain with respect to the Premises and the Building of
which the Premises are a part (i) comprehensive commercial general
liability insurance in the amount not less than Three Million Dollars
($3,000,000) and (ii) an all-risks property and casualty insurance policy
written at replacement cost value and with replacement cost endorsement,
covering all of Tenant's personal property in the Premises (including,
without limitation, trade fixtures, floor coverings, furniture and other
property removable by Tenant under the provisions of this Lease) and all
leasehold improvements installed in the Premises by or on behalf of
Tenant. Each of the foregoing policies shall contain a deductible in an
amount not greater than One Thousand Dollars ($1,000) and shall be written
with responsible companies qualified to do business in Massachusetts and
in good standing therein. Each of the foregoing policies shall include the
following as additionally insured: SaunStar Operating Co., LLC; SaunStar
Land Co., LLC; any Agent of Landlord (currently Xxxxxxxx Real Estate
Corporation); and Landlord's mortgagees (currently Life Insurance Company
of Georgia and First Columbine Life Insurance Company). The Tenant shall
deliver to the Landlord original certificates of insurance at or prior to
the commencement of the Term, and thereafter, shall deliver to Landlord
original certificates of insurance within thirty (30) days prior to the
expiration of any such policies. All such insurance certificates shall
provide that such policies shall not be canceled without at least thirty
(30) days prior written consent notice to each assured named therein. The
policies shall also include, but shall not be limited, to the following
coverages:
(a) Contractual Liability, covering Tenant's liability assumed under
this Lease;
26
(b) Assault and Battery coverage, and coverage for the Sale and
Consumption of Alcoholic Beverages;
(c) Fire Insurance on merchandise, inventory etc. with Extended
Coverage;
(d) Vandalism, Malicious mischief; and
(e) Business Interruption Insurance.
All such insurance herein required shall be deemed to be additional
obligations of Tenant and not in discharge of or a limitation to Tenant's
obligations to indemnify Landlord, its agents, employees, contractors, and
all other persons for whose actions Landlord may be legally responsible
under Article 16. Tenant's obligations to carry the insurance set forth
herein may be brought within the coverage of a so-called blanket policy or
policies of insurance carried an maintained by Tenant; provided however,
that Landlord and others herein above mentioned shall be named as an
additional insured thereunder as their interest may appear and that the
coverage afforded Landlord will not be reduced or diminished by reason of
the use of such blanket policy of insurance, and provided further that the
requirements set forth herein are otherwise satisfied.
18. FIRE CASUALTY - EMINENT DOMAIN
Should forty percent or more of the Premises be damaged by fire or other
casualty, or twenty percent or more of the Premises be taken by eminent
domain, then the Landlord may elect to terminate this Lease. Should any
fire, casualty or taking render forty percent or more of the Premises
substantially unsuitable for their intended use ("Damaged Premises"), a
just and proportionate abatement of rent shall be made, but such abatement
or reduction shall end if and when Landlord shall have restored the
Damaged Premises (exclusive of any of Tenant's fixtures, furnishings,
equipment and the like) to substantially the condition in which the
Premises were prior to such damage and upon Tenant's resumption of
operation of its business (which resumption shall be no later than 10 days
after the Premises have been restored).
The Tenant may elect to terminate this Lease by written notice to the
Landlord if and only if, one or more of the following events occur and
Tenant's written notice is received by Landlord within (60) days of such
event first occurring: (a) the Landlord fails to give written notice
within sixty (60) days of its intention to restore the Damaged Premises,
or (b) the Landlord fails to restore the Damaged Premises to a condition
reasonably suitable for their intended use within one hundred and eighty
(180) days of said fire, casualty or taking.
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In the event less than forty (40%) percent of the Premises shall be
damaged by fire or other casualty, this Lease shall continue in full force
and effect and such repairs shall be made by Landlord with due diligence
and in any event completed within one hundred and eighty (180) days of
said casualty. The Landlord reserves, and the Tenant grants to the
Landlord, ail rights which the Tenant may have for damages or injury to
the Premises for any taking by eminent domain, except for damage to the
Tenant's fixtures, property, or equipment, and moving expenses.
19. DEFAULT AND BANKRUPTCY
19.1 Events Of Default
The following events shall be events of default, upon notice and the
expiration of the applicable cure period, shall entitle the Landlord to
terminate this Lease for default and to all the rights and remedies
provided in paragraph 19.2.
(a) If the Tenant shall default in the payment of any installment of rent or
other sum herein specified and such default shall continue for ten (10)
days after written notice thereof, or if Tenant shall engage in an
unreasonable frequency of late payments of Rent after written notice
thereof (more than three (3) late payments of Rent in a calendar year or
late payments of Rent that is equal to or greater than ten (10) late
payments over the Term of this Lease shall be deemed unreasonable).
(b) If the Tenant shall default in the observance or performance of any other
of the Tenant's covenants, agreements, or obligations hereunder and such
default shall not be corrected within the time period expressed in the
applicable provision, and if no time period is so expressed, within thirty
(30) days after written notice thereof, provided, however, in the event
such other covenant, duty or obligation reasonably requires more than
thirty (30) days for the curing thereof, such failure to cure shall not be
deemed to be a Tenant Event of Default if Tenant shall have diligently
commenced the curing of such failure and having commenced such curing,
carries forward the curing thereof to completion with all diligence and
speed; or
(c) If any of the following events continue and are otherwise not discharged
within sixty (60) days of the event(s) occurring: the estate hereby
created shall be taken on execution or by other process of law, or if any
Guarantor of Tenant shall be judicially declared bankrupt or insolvent
according to law, or if any assignment shall be made of the property of
Tenant or Tenant's Guarantor for the benefit of creditors, or if a
receiver, guardian, conservator, trustee in involuntary bankruptcy or
other similar officer shall be appointed to take charge of all or any
substantial part of Tenant's property or such Guarantor's property or the
property of any person or legal entity occupying the Premises through or
under the Tenant by a court of competent jurisdiction, or if a voluntary
petition shall be filed for the reorganization of Tenant, Tenant's
Guarantor, or any person or legal entity occupying the Premises through or
under the Tenant, under
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any provisions of the Bankruptcy Act now or hereafter enacted, or if
Tenant, Tenant's Guarantor, or any person or legal entity occupying the
Premises through or under the Tenant shall file a petition for such
reorganization or for protection under any provisions of the Bankruptcy
Act now or hereafter enacted and providing a plan for a debtor to settle,
satisfy or extend the time for payments of debts; or
(d) If Tenant fails to take possession of the Premises on the Lease
Commencement Date or Tenant vacates or abandons the Premises prior to the
end of the Term of this Lease, with or without an intention to pay Rent,
and such event(s) shall continue for ten (10) days after written notice
thereof; or
(e) If Tenant is a corporation, partnership, limited liability company or
other form of legal entity other than an individual, if such legal entity
shall be voluntarily or involuntarily dissolved, and such event shall
continue for ten (10) days after written notice thereof.
19.2 Consequences of Default.
The Tenant shall indemnify the Landlord against all loss of rent and other
payments which the Landlord may incur by reason of such termination during
the residue of the Term. If the Tenant shall default, after applicable
notice thereof, in the observance or performance of any conditions or
covenants on Tenant's part to be observed or performed under or by virtue
of any of the provisions in any provision of this Lease, the Landlord,
without being under any obligation to do so and without thereby waiving
such default, may remedy such default for the account and at the expense
of the Tenant. If the Landlord makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including
but not limited to, reasonable attorney's fees, shall be paid to the
Landlord by the Tenant as Additional Rent.
Tenant further covenants and agrees, notwithstanding any entry or re-entry
by Landlord or the termination of this Lease, whether by summary
proceedings or otherwise, that all Rent and other charges due under this
Lease shall be accelerated and shall be immediately due and payable in
full. For purposes of calculating the Annual Percentage Rent that would
have become due for the remainder of the Term, the highest Quarterly
Percentage Rent amount paid during the preceding thirty-six (36) months
shall be annualized and used as the Annual Percentage Rent amount. In the
event the Premises are relet by Landlord (which right Landlord shall have
at its sole election without an obligation to relet), Tenant shall be
entitled to a credit in the net amount of rent and other charges received
by Landlord in reletting, after deduction of all reasonable expenses
incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees, attorneys' fees and the like), and in
collecting the rent in connection therewith, in the following manner:
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Amounts received by Landlord after reletting shall first be applied
against such Landlord's reasonable expenses, until the same are recovered,
and until such recovery, Tenant shall pay, as of each day when a payment
would fall due under this Lease, the full amount thereof (Tenant's
liability prior to any such reletting and such recovery not in any way to
be diminished as a result of the fact that such reletting might be for a
rent higher than the rent provided for in this Lease); when and if such
expenses have been completely recovered, the amounts received from
reletting by Landlord as have not previously been applied shall be
credited against Tenant's obligations as of each day when a payment would
fall due under this Lease, and only the net amount thereof shall be
payable by Tenant.
Further, amounts received by Landlord from such reletting for any period
shall be credited only against obligations of Tenant accruing subsequent
or prior to such period; nor shall any credit of any kind be due for any
period after the date when the Term of this Lease is scheduled to expire
according to its Term.
Without limiting any of Landlord's rights and remedies hereunder, and in
addition to all other amounts Tenant is otherwise obligated to pay, it is
expressly agreed that Landlord shall be entitled to recover from Tenant
all reasonable costs and expenses, including attorneys' fees, incurred by
Landlord in enforcing this Lease from and after Tenant's default.
Notwithstanding anything contained herein to the contrary, Tenant
expressly acknowledges the Landlord's right to show and rent other space
in the Building prior to showing or letting Tenant's space, and that
Landlord is under no obligation to let Tenant's space upon terms and
conditions different from that proposed for other space in the Building.
20. NOTICE
Any notice from the Landlord to the Tenant relating to the Premises or to
the occupancy thereof, shall be deemed duly served, if left at the
Premises addressed to the Tenant, or if sent by facsimile transmission to
the Tenant at the Premises, or if mailed to the Premises by registered or
certified mail, return receipt requested, postage prepaid, addressed to
the Tenant, with in all cases, a copy of said notice sent by facsimile
transmission, U.S. Mail or by a national overnight carrier to: THE XXXXX &
WOLLENSKY RESTAURANT GROUP, INC. 0000 Xxxxx Xxx, 0xx Xxxxx, Xxx Xxxx, XX
00000 FAX (000) 000-0000
Any notice from the Tenant to the Landlord relating to the Premises or to
the occupancy thereof, shall be deemed duly served, if mailed to the
Landlord by registered or certified mail, return receipt requested,
postage prepaid, addressed to the Landlord at such address as the Landlord
may from time to time advise in writing. All rent notices shall be paid
and sent to the Landlord marked to the attention of Xxxxxxxx Real Estate
Corporation, 00 Xxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000.
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21. SURRENDER
The Tenant shall at the expiration or other termination of this Lease
remove all Tenant's goods and effects from the Premises (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the Tenant, either inside or outside the
Premises and any of Tenant's debris). Tenant shall deliver to the Landlord
the Premises and all keys, locks thereto, and all fixtures connected
therewith. In the event of the Tenant's failure to remove any of Tenant's
property from the Premises, Landlord is hereby authorized, without
liability to Tenant for loss or damage thereto, and at the sole risk of
Tenant, to remove and store any of the property at Tenant's expense, or to
retain same under Landlord's control or to sell at public or private sale,
without notice any or all of the property not so removed and to apply the
net proceeds of such sale to the payment of any sum due hereunder, or to
destroy such property,
Tenant shall have the right to remove "Removable Trade Fixtures" (which
term is defined below but expressly excludes ducts, conduits, wiring,
pipes, plumbing fixtures, light fixtures, kitchen exhaust equipment,
shelves, mirrors, paneling or other wall covering or floor covering), and,
in addition to other applicable provisions of this Lease regarding such
removal, the following shall apply: (1) such removal must be made prior to
the termination of the Term; (2) Tenant must not be in default of any
obligation or covenant under this Lease beyond any applicable cure period
at the time of such removal; and (3) such removal must be effected without
damage to the Premises or the Building and Tenant must promptly repair all
damage caused by such removal. For the purposes hereof the phrase
"Removable Trade Fixtures" means all of Tenant's personal property,
including but not limited to, signs, tables, chairs, desks, racks,
merchandisers and displayers, marking equipment, cash registers and other
business machines.
22. BROKERAGE
The Tenant and Landlord warrant and represent to each other that neither
has dealt with a real estate broker entitled to claim a commission in
connection with this Lease or the transactions contemplated hereby except
for: (a) Xxxxxxxx Real Estate Corporation (b) Mr. Xxxx Xxxxxx of The
Xxxxxx Group, 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000. In the event the
foregoing warranty and representation is inaccurate, the party who made
the inaccurate warranty and representation agrees and covenants that it
shall indemnify and hold harmless the other party from and against any and
all claims for brokerage commissions from any real estate broker(s) other
than the foregoing Xxxxxxxx Real Estate Corporation and Mr. Xxxx Xxxxxx of
The Xxxxxx Group, including without limitation, reasonable attorneys'
fees; excepting only, that the Landlord shall pay any and all real estate
broker commissions due Xxxxxxxx Real Estate Corporation and Mr. Xxxx
Xxxxxx of The Xxxxxx Group arising from this Lease.
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23. CONDITION OF PREMISES
The Tenant shall accept the Premises (including all utility systems and
conduits) in its "as is" condition as of the Lease Commencement Date; and
the Landlord shall be obligated to perform no work whatsoever in order to
prepare the Premises for occupancy by the Tenant.
24. FORCE MAJEURE
The occurrence of "Force Majeure" shall excuse such obligations of
Landlord or Tenant as are thereby rendered impossible to timely perform
for so long as such event of Force Majeure continues. "Force Majeure"
means any unforeseeable circumstance caused by any of the following and
without any fault in, or failure to act by, the party asserting Force
Majeure: strikes, lockouts; acts of God; inability to obtain labor,
materials, equipment or supplies; enactment of new governmental
restrictions after the date of this Lease; war or enemy action or
invasion; riot, mob violence; fire, earthquake or other unforeseeable
severe weather condition; a condemnation. Notwithstanding the foregoing,
Force Majeure shall never excuse or delay the timely payment of Rent.
Financial considerations or limitations shall never be a basis for Force
Majeure. Upon the occurrence of Force Majeure, the Landlord shall not be
liable to the Tenant for a claim that any failure constitutes actual or
constructive eviction from the Premises or any part thereof.
25. LATE CHARGE
If Rent or any other sum payable hereunder remains outstanding for a
period of(15) days, the Tenant shall pay to the Landlord a late charge
equal to one and one-half percent (1.5%) of the amount due for each month
or portion thereof during which the arrearage continues, plus a $100.00
administrative cost fee and any reasonable attorney fees that Landlord may
incur as a result of the late payment.
26. LIABILITY OF OWNER
No owner of the Building of which the Premises are a part shall be liable
hereunder except for breaches of the Landlord's obligations occurring
during the period of such ownership. However, the obligations of the
Landlord hereunder shall only be binding upon the Landlord's interest in
said Building, but not upon other assets of the Landlord, and no
individual partner, agent, trustee, stockholder, officer, director,
employee or beneficiary of the Landlord shall be personally liable for
performance of the Landlord's obligations hereunder.
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27. INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
28. WHEN LEASE BECOMES BINDING
Employees or agents of Landlord have no authority to make or agree to make
a lease or any other agreement or undertaking in connection herewith
without the prior approval of the Landlord, which approval shall only
occur upon Landlord's agent actual execution and delivery of this Lease.
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon
the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered
only by written agreement between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof
29. CUMULATIVE RIGHTS
All rights in the Landlord under this Lease are cumulative, and the
Landlord's election to exercise a single right shall not waive or abridge
Landlord's rights as elsewhere stated in this Lease.
30. HOLDING OVER
Tenant recognizes that the Landlord must arrange for a replacement
occupant long in advance of the expiration or earlier termination of the
Term of this Lease, and incident to consummating a new lease for the
Premises hereunder, Landlord may be required to guarantee delivery of
possession to the new occupant promptly upon the expiration or earlier
termination of this Lease. Accordingly, Tenant specifically agrees to
remove all of its goods and effects and to deliver full possession of the
Premises to Landlord not later than the date of the expiration or earlier
termination hereof in order to avoid substantial, and perhaps irreparable,
harm to Landlord. Tenant agrees that Landlord shall have all remedies
available at law or in equity for Tenant's failure so to do.
33
In addition to all such remedies, Tenant further agrees that any holding
over by it which has not been consented to in writing by Landlord shall be
treated as a tenancy at sufferance with use and occupancy liability equal
to an amount that is two hundred percent (200%) of the highest Quarterly
Percentage Rent amount previously paid at anytime during the Term of this
Lease (thereafter adjusted to reflect a per diem amount based on a 90 day
period), plus all other forms of Rent that had been payable as of the date
of the expiration or earlier termination of this Lease, prorated on a
daily basis. All Tenant payments for use and occupancy liability shall be
to mitigate Landlord's damages, and shall not establish a tenancy by
agreement and shall not be considered as rent; notwithstanding, that
Tenant may annotate payment checks as "rent" and Landlord may not annotate
such checks for use and occupancy only.
31. NON-SUBROGATION
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in
the locality in which the Premises are located (even though extra premiums
may result therefrom): Landlord and Tenant mutually agree that, with
respect to any hazard which is covered by insurance then being carried by
them, respectively, the one carrying such insurance and suffering such
loss releases the other of and from any and all claims with respect to
such loss; and they further mutually agree that their respective insurance
companies shall have no right of subrogation against the other on account
thereof. In the event that extra premium is payable by either party as a
result of this provision, the other party shall reimburse the party paying
such premium the amount of such extra premium. If, at the request of one
party, this release and non-subrogation provision is waived, then the
obligation of reimbursement shall cease for such period of time as such
waiver shall be effective, but nothing contained in this Article shall
derogate from or otherwise affect releases elsewhere herein contained of
either party for claims.
32. LATE DELIVERY
The Landlord shall deliver the Premises to the Tenant on the Lease
Commencement Date. It is expressly understood and agreed that if Landlord
is unable to deliver possession of the Premises as required hereunder to
Tenant on the Lease Commencement Date, or on such other date as may be
specified in this Lease, by reason of the holding-over of a prior tenant,
Landlord shall have no liability whatsoever to Tenant on account thereof,
except that Landlord shall use its best efforts to remove any hold-over
tenant. Delivery of the Premises to Tenant shall be deemed to have
occurred on the date that the Landlord notifies Tenant in writing that the
Premises is vacant and available to Tenant.
34
If the Landlord fails to deliver the Premises to Tenant within (60) days
from the date Landlord executes and delivers this Lease to the Tenant,
then at any time thereafter may terminate this Lease upon written notice
to Landlord, provided, that the Landlord has not delivered the Premises to
the Tenant prior to the Landlord receiving Tenant's notice of termination.
33. RECORDING
Tenant agrees not to record or file the Lease in any place where public
records are recorded or filed. In the event that the Lease is recorded or
filed by the Tenant or anyone representing the Tenant, Tenant shall be in
default hereof and this Lease may become null and void forthwith at the
sole option of the Landlord by written notice to the Tenant.
The parties agree that upon request of the Tenant, and at Tenant's sole
cost, a Memorandum of Lease may be executed for recordation but which
memorandum shall include the provisions of Article 14 relating to
subordination of the Lease, but shall not contain any information
concerning Rent.
34. RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, exercisable without notice to
Tenant, without liability for damage or injury to property, person or
business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession of the Premises or giving rise
to any claim for set-off or abatement of Percentage Rent or Additional
Rent or otherwise:
(a) Without hindrance, to affix, maintain, repair, remove and reinstall on the
Building the Landlord's signs and the management signs of Xxxxxxxx Real
Estate Corporation, provided any newly located or newly enlarged signs do
not materially impair the Tenant's ability to conduct business at the
Premises. To affix, maintain, repair, remove and reinstall any sign of the
Tenant or another tenant on the exterior and interior of the Building,
except in instances where Tenant has installed a sign in accordance with
this Lease and with Landlord's express approval, and where Landlord's
intended action would materially impair the Tenant's business at the
Premises.
(b) To approve, prior to installation, all signs, window shades, blinds,
entrance doors and doorways, awnings, window ventilators, lighting and
other similar equipment to be installed by Tenant that may be visible from
the exterior of the Premises or the Building. The parties acknowledge that
Tenant, subject to obtaining all applicable governmental approvals
therefore, and further subject to Landlord's reasonable approval thereof,
shall erect and shall thereafter have the obligation to maintain its
signage on the exterior of the Building.
35
(c) To decorate and make repairs, alterations, additions and improvements,
whether structural or otherwise, in, to and about the Building and any
part thereof, and for such purposes, after reasonable notice to Tenant, to
enter the Premises, and during the continuance of any such work, to close
temporarily doors, entry ways, common areas in the Building and to
interrupt or temporarily suspend Building services and facilities, all
without affecting Tenant's obligations hereunder, including the obligation
to pay Percentage Rent and Additional Rent without setoff or diminution
thereof, as long as the Premises remain tenantable without materially and
adversely interfering with Tenant's operation of its business in the
Premises.
(d) To grant to anyone the exclusive right to conduct any business or render
any service in the Building, as long as the Premises remain reasonably
accessible, without unreasonably interfering with Tenant's operation of
its business in the Premises, and so long as such exclusive right does not
prevent Tenant from carrying on any activity otherwise permitted under
this Lease.
(e) To alter, relocate, reconfigure and reduce the Common Areas within the
Building or located outside the Building, as long as access to and
visibility of the Premises are not materially and adversely obstructed.
35. (Intentionally Deleted)
36. LEASE CONTINGENCIES
The rights and obligations of the parties under this Lease shall be
contingent upon the next listed Lease Contingency. For each Lease
Contingency, if a valid, written Termination Notice is timely received on
or before 4:00 p.m. on the Contingency Date, then this Lease shall
terminate without further recourse in the parties hereto. If a valid
Termination Notice is not timely received by the Contingency Date, then
the right to terminate this Lease shall be deemed waived and expired.
(The Due Diligence Contingency has been intentionally deleted.)
LIQUOR LICENSE CONTINGENCY. The Tenant shall have until September 30, 2000
(the "Contingency Date" for this contingency only) to receive a liquor
license permitting the sale of alcoholic beverages for consumption on the
Premises. In the event the Tenant, while at all times exercising due
diligence, is unable to acquire a liquor license, then Tenant may
terminate this Lease by delivering written notice (Termination Notice) to
the Landlord, which Termination Notice to be valid must: (1) reference
this contingency and express in reasonable detail why a liquor license was
unattainable, and (2) be received by the Landlord on or before the
Contingency Date.
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FINANCIAL CONTINGENCY. The Tenant shall have until December 30, 2000 (the
"Contingency Date" for this contingency only) to acquire such funds
(estimated to be $4.5 Million Dollars) as necessary to meet Tenant's
financial obligations as expressed in Article 39. In the event the Tenant
is unable to acquire the necessary funding, under terms and conditions
acceptable to Tenant in Tenant's sole and absolute judgment, then Tenant
may terminate this Lease by delivering written notice (Termination Notice)
to the Landlord, which Termination Notice to be valid must: (1) reference
this contingency and (2) be received by the Landlord on or before the
Contingency Date.
Notwithstanding any provision in this Lease to the contrary, including
without limitation, the Term hereof and the foregoing Contingency Date(s),
if the Landlord and another prospective tenant desire to enter into a
lease for the Premises, then the Landlord shall provide written notice
thereof to the Tenant and the Tenant shall have five (5) days to notify
the Landlord in writing that all of the above Lease Contingencies are null
and void. If the Tenant fails to timely provide the foregoing written
notice, then at the election of the Landlord, by written notice to the
Tenant, the Term hereof shall be accelerated and shall end on the date
specified in Landlord's written notice.
37. LANDLORD'S LIEN
37.1 To secure the performance of Tenant's obligations under this Lease, Tenant
hereby grants to Landlord a first security interest in and an express
contractual lien upon all of Tenant's equipment, furniture, furnishings,
appliances, and trade fixtures which now or hereafter are brought upon the
Premises by the Tenant, accounts receivable and cash and cash equivalent
derived from Tenant's business conducted from the Premises, deposits
granted hereunder and the refunds, if any, under this Lease, and all after
acquired property, replacements and proceeds thereof, and an assignment of
all licenses and permits necessary for the operation and conduct of
Tenant's business, as permitted under Article 8 of this Lease, from the
Premises. The parties agree that this Lease shall constitute a security
agreement for purposes of the Massachusetts Uniform Commercial Code.
Landlord is authorized to prepare and file financing statements and other
agreements covering the security described above and provided Tenant has
not executed such financing statements and other documents evidencing the
security interest within ten (10) days of Landlord's request, Tenant
hereby irrevocably designates and appoints the Landlord as its
attorney-in-fact to execute and file in the name of Tenant any such
statements and other documents evidencing the security interest and
assignments referred to herein above. Tenant shall execute upon demand any
such statements and other documents reasonably requested by Landlord in
connection herewith. Failure to so execute such statements and other
documents reasonably requested by Landlord shall constitute a default
under this Lease. Upon the occurrence and continuation of any default
under this Lease and the giving of notice and the expiration of any
applicable cure period, any and all of Tenant's obligations to Landlord
secured hereby may be immediately foreclosed on by Landlord. In addition
to all rights or remedies of Landlord under this Lease and the law,
including the right to a judicial foreclosure, Landlord shall have all
fights and remedies of a secured party under
37
the Massachusetts Uniform Commercial Code. This security agreement and the
security hereby created shall survive the termination of this Lease if
such termination results from Tenant's default.
37.2 No Guarantor of this Lease or other third-party securing the full and
faithful performance of Tenant's obligations under this Lease may, in any
fashion, rely on this Article in providing to Landlord any collateral
guaranty, letter of credit or other security. Any failure by the Landlord
to perfect or renew the security interest granted by this Article shall
not be a defense at law or in equity that is available to the Tenant, or
to any Guarantor or other third-party securing the full and faithful
performance of Tenant's obligations under this Lease; all such defenses
are hereby expressly waived.
37.3 If requested by the Tenant, Landlord shall subordinate its lien to
Tenant's lender, provided, any and all rights and security interest held
or asserted by Tenant's lender shall at all times be subject to the
following: no auctions or public inspections shall take place on the
Premises, and the lender shall promptly remove from the Premises all
property of the Tenant that lender claims a security interest in.
38. TENANT'S FINANCIAL CONDITION
Tenant warrants and represents that all information provided to Landlord
or Landlord's representatives in connection with this Lease are true and
correct and in respect of the financial condition of Tenant and Guarantor,
properly reflect the same without material adverse change, as of the date
hereof, and Tenant acknowledges that the Landlord has relied upon said
information in entering into this Lease. Tenant shall deliver to Landlord
on a yearly basis within (180) days of the end of the Tenant's fiscal
year, at Tenant's sole cost and expense, the then current, audited
financial statements of Tenant and Guarantor (if audited statements have
been recently prepared on behalf of Tenant and Guarantor), or otherwise
comprised of the financial information made available for distribution to
shareholders of Tenant and/or Guarantor or to the Securities and Exchange
Commission.
39. TENANT'S WORK
39.1 General
A material requirement of this Lease is that the Tenant shall make certain
improvements to the Premises before the Rent Commencement Date that will:
(1) result in a high-end restaurant that has the quality and interior
finish and appearance no less in scope and quality than the Xxxxx &
Wollensky restaurant presently located at 00xx Xxxxxx xxx 0xx Xxxxxx, Xxx
Xxxx Xxxx, XX, (2) include altering all utilities serving the Premises so
that all utility systems (being electrical, natural gas, heating,
ventilation, air conditioning and water and sewer equipment, wires,
piping, ducts, meters and the like) are located within the Premises, with
connections to the public utility companies running directly from the
point where the public utility is located in the public way or street, to
the
38
Premises, thereby serving only the Premises, separate from the Building's
utility systems, with separate meters to measure usage, (3) include a
grease trap in the sewer equipment installation, and (4) include the
installation of an interior demising wall separating all levels of the
Premises from the so-called Armory Drill Hall and its basement
(collectively hereinafter, "Tenant's Work"). All Tenant's Work shall merge
with and become part of the realty and Landlord's property upon completion
except for removable trade fixtures.
The provisions of Article 12 shall also apply to this Article.
The Tenant shall make no alteration, change or improvement to the exterior
of the Building without the Landlord's prior written consent, which
consent may be withheld in the Landlord's absolute discretion, except that
the Landlord shall not unreasonably withhold or delay its consent as to
the Tenant's reasonable exterior signage.
39.2 (Intentionally deleted.)
39.3 Landlord's Contribution To The Cost Of Tenant's Work.
The Landlord agrees that it shall contribute to the direct costs actually
paid by Tenant for Tenant's Work, as such direct costs are defined and
measured by Tenant's actual third-party contract payments, but excluding
"soft costs" (hereinafter, "Landlord's Contribution"). As used herein,
soft costs shall include governmental permit fees, architect and
engineering costs or fees including plans and specifications, and the cost
for furniture, removable trade fixtures. Landlord's Contribution shall be
made pursuant to the reimbursement schedule expressed below, and only
after Tenant provides reasonable verification of the Tenant's direct costs
as actually paid to complete Tenant's Work, but in no event shall
Landlord's Contribution ever exceed Two Million Five Hundred Thousand
Dollars ($2,500,000.00), (hereinafter, the "Landlord's Maximum
Contribution"). Tenant shall establish the direct cost actually paid by
Tenant by delivering to Landlord a copy of the applicable contract (and
any amendments), reasonable evidence of Tenant's payment(s), and by
delivering to Landlord any other additional evidence that may be
reasonably requested by the Landlord.
Reimbursement Schedule
o Tenant shall pay the first $1,000,000.00 in third party contract
payments; then
o Landlord shall reimburse the Tenant for the next $500,000.00 Tenant
has paid in third party contract payments; then
o Tenant shall pay the next $l,000,000.00 in third party contract
payments; then
o Landlord shall reimburse the Tenant for the next $500,000.00 Tenant
has paid in third party contract payments; then
o After Tenant has expended $3,000,000.00 in third party contract
payments, and the Landlord has reimbursed Tenant $1,000,000.00 of
the $3,000,000.00 expended pursuant to this Reimbursement Schedule,
then the Landlord shall
39
reimburse Tenant the amount that equals thirty-five percent (35%) of
the amount Tenant has paid in third party contract payments that is
above $3,000,000.00, until the Landlord's Maximum Contribution is
achieved.
39.4 Plans and Specifications
The nature of Tenant's Work to be constructed including changes thereto,
the general construction contract, the insurance to be carried by the
Tenant, its contractors and subcontractors, the plans (as stamped by an
architect duly licensed in the Commonwealth of Massachusetts) and
specifications with respect thereto, and the scheduling of such work,
shall all be subject to the written approval of Landlord pursuant to
Article 12 hereof, which approval shall not be unreasonably withheld or
delayed. All of Tenant's Work shall be done in a first-class manner using
new or antique materials and shall include all work necessary to cause the
Premises to be in compliance with the state and local building and fire
prevention codes. Landlord shall not be deemed unreasonable in not
approving matters relating to the Tenant's Work which, in its reasonable
judgment, would cause an unnecessary increase in the cost of operation,
maintenance or insurance for the Building, or which would conflict with
the design or function of the Building.
The interior of the Premises contains significant millwork, built-in
cabinetry and specialty fixtures. The Tenant's plans and specifications
shall specifically identify what existing millwork, cabinetry and fixtures
Tenant desires to remove as part of Tenant's Work. All existing millwork,
cabinetry and fixtures removed by Tenant shall be removed in a manner
least destructive, and such items shall remain Landlord's property and
shall be stored by Tenant in the basement of the Premises.
40. GUARANTY
As an inducement to the Landlord entering this Lease, Xxxxx & Wollensky
Restaurant Group, Inc., (formerly named the New York Restaurant Group) a
corporation organized pursuant to the laws of Delaware, and having a
principal place of business at 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
(hereinafter, the "Guarantor"), shall deliver to Landlord simultaneously
with the Tenant's execution of this Lease, a duly executed, binding,
written guaranty in the form attached hereto as Exhibit B. The Guarantor
shall also deliver with the guaranty evidence of due authority and
execution of said guarantee by Guarantor as the Landlord may reasonably
request.
41. GOVERNING LAW
This Lease may be executed in any number of counterpart copies, each of
which counterpart copy shall be deemed an original for all purposes. This
Lease shall be governed exclusively by the provisions hereof and by the
laws of the Commonwealth of
40
Massachusetts as the same may from time to time exist. Furthermore, Tenant
agrees that all actions or proceedings arising directly or indirectly from
this Lease shall be litigated or conducted only in courts situated within
the Commonwealth of Massachusetts, and Tenant hereby consents to the
jurisdiction of any local, State or Federal Court located within the
Commonwealth of Massachusetts.
42. DUE EXECUTION AND AUTHORITY
The persons executing this Lease on behalf of Tenant and Landlord, by so
executing, do hereby represent and warrant to each other that each person
is duly authorized and empowered to execute and deliver this Lease, that
all formalities required by the organizational instruments applicable to
the Tenant and Landlord, as the case may be, have been fully satisfied and
are consistent with the execution and delivery of this Lease, and in all
respects, upon execution and delivery of this Lease by both Tenant and
Landlord, such persons do further represent and warrant to each other that
this Lease is a binding obligation of the party said person has acted on
behalf of.
Without adversely impacting the foregoing representations and warranties,
the Tenant shall deliver to the Landlord, on or before executing this
Lease, copies of such corporate resolutions or other instruments
reflecting due execution and authority as the Landlord may reasonably
request.
43. COMMENCEMENT DATE CERTIFICATE
At the request of either party from time to time made, the other party
shall execute one or more memoranda or letters stating the Commencement
Date and termination date of this Lease.
44. RIGHTS UPON LEASE EXECUTION
Notwithstanding the fact that the Term will commence at a date subsequent
to the execution of this Lease by Landlord and Tenant, such parties intend
that each shall have vested rights immediately upon the signing of this
Lease and that this Lease shall be fully binding and in full force and
effect from and after execution and delivery of the Lease.
45. COUNSEL FEES
In any action or proceeding to enforce any provision hereof which proceeds
to final judgement in a court of law, the prevailing party shall be
entitled to reasonable attorney's fees.
41
46. LANDLORD-TENANT RELATION
The relation created by this Lease is that of landlord and tenant. Neither
the provisions for Percentage Rent nor any other provision of this Lease
shall be construed in such a way as to constitute Landlord and Tenant
joint venturers or co-partners or to make Tenant the agent of Landlord or
to make Landlord liable for the debts of Tenant.
47. QUIET ENJOYMENT
Landlord covenants that Tenant, on paying all Rent and performing all the
covenants and obligations of this Lease on its part to be performed, shall
and may peaceably have, hold and enjoy the Premises for the Term.
48. (Intentionally Deleted)
49. TERMINOLOGY AND MISCELLANEOUS
(a) With respect to terminology in this Lease, each number (singular or
plural) shall include all numbers, and each gender (male, female or
neuter) shall include all genders If any provision of this Lease shall
ever be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions of the Lease, but
such other provisions shall continue in full force and effect.
(b) The titles of the Sections, Articles and Paragraphs in this Lease shall
have no effect and shall neither limit nor amplify the provisions of the
Lease itself
(c) The words "hereof," "herein," "hereunder," "hereinafter" and the like
refer to this entire lease, not just to the specific Article, Section or
Paragraph in which such words appear.
(d) Whenever this Lease provides that either party shall be entitled to
recover fees, costs or expenses from the other, and the amount thereof or
method of calculating is not specifically stated, then such fees, costs or
expenses shall be reasonable in nature.
(Signature page follows)
42
WITNESS the execution hereof dated as of April 6, 2000, under seal as a sealed
instrument.
THE LANDLORD AND TENANT, BY SIGNING BELOW, HEREBY ACKNOWLEDGE THAT THEY HAVE
READ, UNDERSTOOD AND KNOWINGLY AGREED TO THE TERMS AND CONDITIONS OF THIS LEASE
AS SPECIFICALLY SET FORTH IN EACH OF THE FOREGOING ARTICLES AND SEQUENTIALLY
NUMBERED PAGES OF THIS LEASE
LANDLORD:
SAUNSTAR OPERATING CO., LLC
Acting By and Through Its Agent Xxxxxxxx Real Estate
Corporation,
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: XXXXXX X. XXXXXXXX
Title: Chmn, Pres. & CEO
Hereunto duly authorized
TENANT:
By: By: /s/ Xxxxx Xxxx
------------------------ ------------------------
Name: Name: XXXXX XXXX
Title: Title: PRESIDENT
Hereunto duly authorized Hereunto duly authorized
ACKNOWLEDGMENT
State of New York, County of New York, ss.
On this 12 day of May, 2000, before me personally appeared Xxxxx Xxxx and to me
known to be the person(s) described herein and who executed the foregoing
instrument and acknowledged that he/she/they executed the same as his/her/their
free act and deed and the free act and deed of said Tenant
/s/ Xxxx X. Xxxxxx (Seal)
---------------------------
Notary Public:
My Commission Expires:
XXXX X. XXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Rockland County
My Commission Expires Jan. 31, 2001
WITNESS the execution hereof dated as of April 6, 2000, under seal as a sealed
instrument.
THE LANDLORD AND TENANT, BY SIGNING BELOW, HEREBY ACKNOWLEDGE THAT THEY HAVE
READ, UNDERSTOOD AND KNOWINGLY AGREED TO THE TERMS AND CONDITIONS OF THIS LEASE
AS SPECIFICALLY SET FORTH IN EACH OF THE FOREGOING ARTICLES AND SEQUENTIALLY
NUMBERED PAGES OF THIS LEASE
LANDLORD:
SAUNSTAR OPERATING CO., LLC
Acting By and Through Its Agent Xxxxxxxx Real Estate
Corporation,
By:
------------------------------
Name:
Title:
Hereunto duly authorized
TENANT:
By: By: /s/ Xxxx Xxxxxx
------------------------ ------------------------
Name: Name: Xxxx Xxxxxx
Title: Title: Treasurer of its sole member,
The Xxxxx & Wollensky
Restaurant Group, Inc., a
Delaware Corporation
Hereunto duly authorized Hereunto duly authorized
ACKNOWLEDGMENT
State of NY, County of NY, ss.
On this 11 day of Sept, 2000, before me personally appeared Xxxx Xxxxxx, to me
known to be the person(s) described herein and who executed the foregoing
instrument and acknowledged that he executed the same as his free act and deed
as treasurer of The Xxxxx & Wollensky Restaurant Group, Inc., the sole member of
the Tenant.
/s/ Xxxx Xxxxxxxxxx (Seal)
---------------------------
Notary Public:
My Commission Expires:
XXXX XXXXXXXXXX
Notary Public, State of New York
No. 00-0000000 Qual. in Kings Co.
Commission Expires March 30, 2002
43
EXHIBIT A
[MAP OMITTED]
EXHIBIT B
GUARANTEE OF LEASE
In consideration for executing and delivering a certain lease ("Lease"),
as executed by and between XXXXXXXX REAL ESTATE CORPORATION as agent for
SAUNSTAR OPERATING CO., LLC, a Delaware limited liability company, with said
agent's principal place of business at 00 Xxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX
00000-0000 (hereinafter, the "Landlord", which term shall always include
Landlord's successors and assigns), and the S & W OF BOSTON LLC, a Massachusetts
limited liability company (hereinafter, the "Tenant", which term shall always
include Tenant's successors and assigns), where said Lease is dated as of April
6, 2000 and demises certain Premises defined therein as the Armory Headhouse,
and located in a building known as the Corps of Cadets Armory and Castle,
located at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged,
the undersigned guarantor, The Xxxxx & Wollensky Restaurant Group, Inc., a
corporation organized pursuant to the laws of Delaware and having a principal
place of business at 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (hereinafter, the
"Guarantor", which term shall always include Guarantor's successors and
assigns), hereby duly executes and delivers to Landlord this Guarantee of Lease
dated as of the below stated date. ("Guarantee").
1. Guaranteed Obligations.
The Guarantor hereby unconditionally and irrevocably guarantees to
Landlord (and hereby becomes surety to Landlord) the due, punctual, full and
complete performance and payment of all the Tenant's obligations, liabilities,
covenants and duties, of every kind and nature, that arise under or through the
Lease (collectively hereinafter, "Liabilities"). The Guarantor further covenants
to Landlord to duly, punctually, and fully pay and otherwise perform and satisfy
all said Liabilities within 30 days of receiving Landlord's written demand, and
to indemnify and hold harmless the Landlord from all costs and damages that
Landlord may hereinafter incur in enforcing its rights under this Guarantee,
including without limitation, reasonable attorney fees.
2. Guarantee Unconditional.
The obligations of the Guarantor hereunder are continuing, irrevocable,
absolute and unconditional, irrespective of any circumstances whatsoever which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor or surety. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way affected
by the following:
Page 1 of 6
(a) any amendment, modification or supplement to the Lease, or any
assignment of the Lease or subletting of the demised Premises by the
Tenant;
(b) any exercise or nonexercise of or delay in exercising any right,
remedy, power or privilege under or in respect to the Guarantee or Lease
(even if any such right, remedy, power or privilege shall be lost
thereby), or any waiver, consent, indulgence or other action or inaction
in respect thereof;
(c) any bankruptcy, insolvency, arrangement, composition, assignment for
the benefit of creditors or similar proceeding commenced by or against
Tenant, and any voluntary or involuntary liquidation, dissolution or sale
of all or substantially all of the property of Tenant, or any marshaling
of assets and liabilities, or other similar proceeding affecting Tenant or
any of its assets;
(d) any failure to perfect or continue perfection of; or any release or
waiver of, any security interest given by Tenant or by any other party to
Landlord as security for the Liabilities, including without limitation,
letters of credit or security interests given in any property of Tenant;
(e) any extension of time for payment or performance of any of the
Liabilities;
(f) the genuineness, validity or enforceability of the Lease;
(g) any defense that may arise by reason of the failure of Landlord to
file or enforce a claim against the Tenant in any bankruptcy or other
legal proceeding;
(h) any sale or other transfer by the Landlord of the real property or any
part thereof which includes the Premises demised by the Lease, or any
foreclosure by a lender pursuant to a mortgage on said real property;
(i) any other circumstances which might otherwise constitute a legal or
equitable discharge of a guarantor or surety.
(j) Landlord may, from time to time, without notice to Guarantor and
without affecting, diminishing or releasing the liability of Guarantor:
(1) retain or obtain a security interest in any property of Tenant or
third party to secure any of the Liabilities or any obligation hereunder,
(2) retain or obtain the primary or secondary liability of any party or
parties, in addition to Guarantor, with respect to any of the Liabilities,
(3) extend or renew for any period which does not extend beyond the
renewal periods set forth in the Lease, alter or exchange any of the
Liabilities, (4) release or compromise liability of any of the parties
primarily or secondarily liable on any of the Liabilities, (5) release its
security interest, if any, in all or any property securing any of the
Liabilities or any obligation hereunder and permit any substitution or
exchange for any such property, (6) resort to Guarantor for payment of any
Liability, or any portion thereof; whether or not Landlord
Page 2 of 6
shall have resorted to any property securing any of the Liabilities or any
obligation hereunder or shall have proceeded against any party primarily
or secondarily liable on any of the Liabilities, and (7) alter, extend,
change, modify, release or cancel any covenant, agreement or provision
contained in the Lease.
The obligations of Guarantor hereunder are independent of the obligations
of Tenant, and separate actions for payment, damages or performance may be
brought and prosecuted against Guarantor whether or not an action is brought
against Tenant or the security for Tenant's obligations, and whether or not
Tenant is joined in any such actions, and whether or not notice is given or
demand is made upon Tenant. Any amount received by Landlord from whatever source
and applied by it toward the payment of the Liabilities shall be applied in such
order of application as Landlord may from time to time elect.
Landlord may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities, and in such event each and every successive assignee,
transferee, or holder of all or any of the Liabilities, shall have the right to
enforce this Guarantee, by suit or otherwise for the benefit of such assignee,
transferee or holder, as fully as if such assignee, transferee or holder were
herein by name specifically given such rights, powers and benefits. Landlord
shall have an unimpaired right, prior and superior to that of any such assignee,
transferee or holder, to enforce this Guarantee for the benefit of Landlord, as
to so much of the Liabilities as it has not sold, assigned, or transferred.
The Landlord shall not be required to produce the original of this
Guarantee in order to enforce its provisions.
3. Waiver.
Guarantor hereby waives: (a) notice of the acceptance of this Guarantee,
(b) notice of the existence or creation of the Lease or all or any of the
Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other
notice of whatever kind and nature, and (d) all diligence on the part of
Landlord in collection or protection of; or realization upon, any security for
any of the Liabilities or in enforcing any remedy available to it under the
Lease.
Guarantor hereby waives and releases all rights of subrogation, setoff,
contribution and indemnity against Landlord, and any right to enforce any remedy
which Landlord now has or may hereafter have against Tenant, and waives any
benefit of any right to participate in any security now or hereafter held by
Landlord. Guarantor expressly waives and relinquishes any and all rights and
remedies of surety. Until each and every one of the covenants and agreements of
this Guarantee are fully performed, Guarantor's obligations shall not be
released, in whole or in part, by any action or thing which might, but for the
provisions of this Guarantee, be deemed a legal or equitable discharge of a
surety or guarantor, or by reason of any waiver, extension, modification,
forbearance or delay or other act or omission of Landlord or its failure to
proceed promptly or otherwise, or by reason of any action taken or omitted by
Landlord, whether or not such action or failure to act varies or increases the
risk of; or affects the rights or remedies of Guarantor or by
Page 3 of 6
reason of any further dealings between Tenant, Landlord or any other guarantor.
Guarantor hereby expressly waives and surrenders any defense to its liability
hereunder based upon any of the foregoing acts, omissions, things, agreements or
waivers or any of them; it being the purpose and intent of the parties hereto
that the covenants, agreements and all obligations hereunder are absolute,
unconditional and irrevocable.
No delay or failure on the part of Landlord in the exercise of any right
or remedy under the Lease or the Guarantee shall operate as a waiver thereof,
and no single or partial exercise by Landlord of any such right or remedy shall
preclude the complete exercise thereof or of other rights or remedies. No action
or inaction of Landlord permitted hereunder shall in any way impair or affect
this Guarantee.
4. Notices.
Any notice, demand or request by Landlord, its successors or assigns, to
Guarantor shall be in writing, and shall be deemed to have been duly given or
made if either delivered personally to Guarantor, or if mailed by certified or
registered U.S. Mail, or if sent by a nationally recognized overnight carrier
such as Federal Express, and addressed to:
If to the Guarantor, at the address stated on page 1 hereof
If to the Landlord, at the following address: SaunStar Operating Co., LLC,
c/o Saunders Real Estate Corporation, 00 Xxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX
00000-0000, Attn: President's Office, with a copy to: Xxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000.
Either party may by written notice to the other party amend their address
as stated above.
5. Assignment.
Landlord shall be entitled to assign this Guarantee and all of its rights,
privileges, interests, and remedies hereunder, in connection with the assignment
of the Lease, to any other person, firm, entity, bank or corporation whatsoever
without notice to or consent by Guarantor, and such assignee shall be entitled
to the benefits of this Guarantee and to exercise all such rights, interests and
remedies as fully as Landlord. This Guarantee shall inure to the benefit of
Landlord, its successors and assigns, and shall bind Guarantor jointly and
severally, together with its heirs, representatives, successors and assigns. If
more than one party shall execute this Guarantee, the term "Guarantor" shall
mean all parties executing this Guarantee, and all such parties shall be jointly
and severally obligated hereunder.
6. Jurisdiction.
This Guarantee shall be construed as a sealed instrument executed under
seal in accordance with the laws of the Commonwealth of Massachusetts, and such
laws shall govern the
Page 4 of 6
interpretation, construction and enforcement hereof. Wherever possible each
provision of this Guarantee shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guarantee
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guarantee.
Guarantor hereby (a) submits to the nonexclusive jurisdiction of the
courts of the Commonwealth of Massachusetts for the purposes of all legal
proceedings arising out of or relating to this Guarantee; and (b) irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the venue of any such proceeding brought in such court and
to any claim of inconvenient forum. Notwithstanding the foregoing, nothing
herein shall limit the right of Landlord at its sole and exclusive election to
bring proceedings against Guarantor in the federal courts or in the courts of
any other jurisdiction.
7. Representations and Warranties.
Guarantor represents and acknowledges that the making of the Lease will be
of direct interest, benefit and advantage to Guarantor, and that, without the
execution and delivery of this Guarantee, Landlord would not have agreed to
enter into said Lease.
The Guarantor hereby represents and warrants to Landlord that this
Guarantee has been executed by a person duly authorized to bind and adhere the
Guarantor hereto, that all required corporate formalities have been complied
with to authorize the due execution and delivery of this Guarantee, and upon
delivery to the Landlord of this executed Guarantee by the Guarantor, the
Guarantee shall be a binding obligation of the Guarantor fully enforceable in
accordance with its terms.
This Guarantee is hereby signed, sealed and delivered dated as of the
dated executed below.
GUARANTOR
/s/ Xxxxx Xxxx 5/12/00
-------------------------- -----------
Print Name: XXXXX XXXX Date
Title: PRESIDENT
Hereby duly authorized
(Acknowledgment & Certificate follows)
Page 5 of 6
ACKNOWLEDGEMENT
State of New York, County of New York, ss.
On this 12th day of May, 1999, before me personally appeared Xxxxx Xxxx, known
to me to be the person described herein and who executed the foregoing Guarantee
and acknowledged that he/she executed same as their free act and deed on behalf
of said Guarantor.
/s/ Xxxx X. Xxxxxx (Seal)
---------------------------
Notary Public:
My Commission Expires:
XXXX X. XXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Rockland County
My Commission Expires Jan. 31, 2001
CERTIFICATE OF DUE EXECUTION
I, the undersigned officer of (insert Guarantor's Name) THE XXXXX & WOLLENSKY
RESTAURANT GROUP, INC. do hereby certify that the foregoing individual is the
(insert title) PRESIDENT of (insert Guarantor's Name) THE XXXXX & WOLLENSKY
RESTAURANT GROUP, INC. and his/her signature appears on this instrument and that
in all respects, this instrument has been duly executed by a duly authorized and
empowered officer of (insert Guarantor's Name) THE XXXXX & WOLLENSKY RESTAURANT
GROUP, INC.
By: /s/ Xxxxx Xxxx 5/12/00
-------------------------- ------------
Print Name: Xxxxx Xxxx Date
Title: PRESIDENT
Page 6 of 6
ORIGINAL
AMENDMENT NO. 1
This instrument is dated as of December 14, 2000, and amends a certain
lease dated April 6, 2000 ("Lease"), between SAUNSTAR OPERATING CO., LLC
("Landlord"), acting by and through its sole agent, Xxxxxxxx Real Estate
Corporation, and S&W OF BOSTON, LLC ("Tenant"), for demised Premises defined
therein and located in the Armory Headhouse, being a portion of the building
commonly known as the Corps of Cadets Armory and Castle, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX. Unless a specific definition is provided herein, all capitalized
words and phrases shall have the same meaning as in the Lease.
For good and valuable consideration the parties hereby amend the Lease as
follows:
1. Tenant's termination notice dated December 8, 2000, issued pursuant to the
Financial Contingency in Article 36, is hereby revoked.
2. Referencing the Financial Contingency in Article 36, the date of December
30, 2000 is deleted, and the date of March 30, 2001 is substituted
therefor.
3. All other terms and conditions of the Lease remain unchanged. The Lease is
in full force and effect.
HEREBY executed as of the above-stated date.
SAUNSTAR OPERATING CO., LLC S&W OF BOSTON, LLC
acting through its agent,
Xxxxxxxx Real Estate Corporation
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
-------------------------- ----------------------------
Name: XXXXXX XXXXXXXX
Title: Chmn, Pres & CEO Xxxxx Xxxx, acting as
President of The Xxxxx & Wollensky
Restaurant Group, Inc., the sole
member of the member-managed S&W of
Boston, LLC. Duly authorized.
AMENDMENT NO. 2
This instrument is dated as of March 13, 2001, and amends a certain lease
dated April 6, 2000, ("LEASE"), between SAUNSTAR OPERATING CO., LLC
("LANDLORD"), acting by and through its sole agent, Xxxxxxxx Real Estate
Corporation, and S&W OF BOSTON, LLC ("TENANT"), for demised Premises defined
therein and located in the Armory Headhouse, being a portion of the building
commonly known as the Corps of Cadets Armory and Castle, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX. Unless a specific definition is provided herein, all capitalized
words and phrases shall have the same meaning as in the Lease.
For good and valuable consideration the parties hereby amend the Lease as
follows:
1. Referencing the Financial Contingency in Article 36, the date of December
30, 2000, as amended to March 30, 2001 by Amendment No. 1, is further
amended and changed to May 31, 2001.
2. All other terms and conditions of the Lease remain unchanged. The Lease is
in full force and effect.
HEREBY executed as of the above-stated date.
SAUNSTAR OPERATING CO., LLC S&W OF BOSTON, LLC
acting through its agent,
Xxxxxxxx Real Estate Corporation
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxx
----------------------------- -----------------------
Name: Xxxxxx X. Xxxxxxxx Xxxxx Xxxx
Title: CHMN, PRES. & CEO Acting in his capacity as
Duly authorized 3-22-01 President of The Xxxxx &
Wollensky Restaurant
Group, Inc., the sole
member of the member-
managed S&W of Boston,
LLC. Duly authorized.
