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AGREEMENT OF LEASE
(0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.)
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XXXXX & WOLLENSKY
July 8, 1998
TABLE OF CONTENTS
TITLE PAGE
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1. Definitions .......................................................... 1
A. Definitions of Business Terms ................................. 1
B. Additional Definitions ........................................ 2
2. Premises ............................................................. 4
3. Term; Commencement Date; Permits, etc. ............................... 4
3.1 Commencement Date ............................................. 4
3.2 Renewal Option ................................................ 5
3.3 Declaration ................................................... 5
4. Rent; Monthly Base Rent; Allowance and Abatement ..................... 5
4.1 Monthly Base Rent ............................................. 5
4.2 Rent Credit ................................................... 5
5. Acceptance of the Premises ........................................... 6
6. Percentage Rent ...................................................... 6
6.1 Calculation ................................................... 6
6.2 Periodic Payment and Reporting ................................ 6
6.3 Records Maintenance ........................................... 7
6.4 Audit Rights .................................................. 7
6.5. Radius Restriction ............................................ 8
7. Real Estate Taxes .................................................... 8
8. Sale, Use or Other Taxes ............................................. 9
9. Personal Property Taxes .............................................. 9
10. Late Charge; Interest ................................................ 9
11. Use of Premises; Continuous Operation ................................ 10
11.1 Use ........................................................... 10
11.2 Continuous Operation .......................................... 10
12. Additional Matters ................................................... 11
13. Repairs by Tenant .................................................... 12
14. Repairs ............................................................. 12
15. Laws and Ordinances .................................................. 13
16. No Landlord's Work; Tenant's Work; Alterations ....................... 13
16.1 Landlord's Work and Tenant's Work ............................. 13
16.2 Alterations by Tenant ......................................... 13
17. Ownership of Alterations and Equipment and Other Property;
Removal of Tenant's Personal Property ................................ 14
17.1 Landlord's Property ........................................... 14
17.2 Removal ....................................................... 14
18. Damage or Destruction ................................................ 15
18.1 General Provisions ............................................ 15
18.2 Restoration by Tenant ......................................... 15
18.3 Termination Rights ............................................ 16
19. Condemnation ......................................................... 16
20. Defaults; Landlord's Remedies ........................................ 16
20.1 Events of Default ............................................. 16
20.2 Landlord's Remedies ........................................... 17
20.3 Extent of Liabilities ......................................... 18
20.4 Tenant's Waiver ............................................... 19
20.5 Landlord's Lien ............................................... 19
20.6 Remedies Cumulative ........................................... 20
20.7 Landlord's Default ............................................ 20
21. Utilities ............................................................ 20
22. Tenant's Insurance ................................................... 21
22.1 Liability Insurance ........................................... 21
22.2 Tenant's Casualty and Property Insurance ...................... 21
22.3 Policy Requirements ........................................... 21
22.4 Additional Insurance .......................................... 22
22.5 Effect of Tenant's Activities on Insurance .................... 22
23. Tenant's Insurance ................................................... 22
24. Waiver of Subrogation ................................................ 22
25. Assignment and Subletting ............................................ 23
25.1 General Provisions ............................................ 23
26. Signs ................................................................ 26
27. Rules and Regulations ................................................ 26
28. Landlord Access ...................................................... 26
29. Subordination ........................................................ 26
30. Estoppel Certificates; Financial Statements .......................... 27
30.1 Estoppel Certificate .......................................... 27
30.2 Financial Statements .......................................... 27
31. Hold Over ............................................................ 28
32. Quiet Enjoyment ...................................................... 28
33. Prohibited Materials and Property .................................... 28
34. Landlord's Successors ................................................ 29
35. Attorneys' Fees ...................................................... 29
36. Notices .............................................................. 29
37. Remedies Cumulative; No Waiver ....................................... 30
38. Final Agreement; Severability ........................................ 31
39. Time is of the Essence ............................................... 31
40. Indemnity ............................................................ 31
41. Exculpation .......................................................... 31
42. No Liability ......................................................... 32
43. No Partnership ....................................................... 32
44. Brokerage ............................................................ 32
45. Tenant's Authority ................................................... 32
47. Landlord's Courtesy Account .......................................... 33
48. Governing Law; Construction .......................................... 33
49. Benefit and Burden; No Recording ..................................... 33
50. No Further Representations or Warranties ............................. 33
50. Waiver of Jury Trial; Tenant's Agent; Consent to Jurisdiction ........ 34
50.1 Waiver of Jury Trial .......................................... 34
50.2 Consent to Jurisdiction ....................................... 34
LIST OF EXHIBITS
A. Legal Description of Land
B. Declaration Confirming Commencement Date
C. Rules and Regulations
D. Work Agreement
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (this "Lease") is made as of the 8th day of July,
1998, by and between (i) 0000 Xxxxxxxxxx Xxxxxx Associates, a District of
Columbia joint venture, and (ii) S & W D.C., L.L.C., a Delaware limited
liability company ("Tenant").
AGREEMENT
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1. DEFINITIONS. Except as otherwise expressly provided or unless the
context otherwise requires, the following terms shall have the meanings assigned
to them in this Paragraph:
A. DEFINITIONS OF BUSINESS TERMS
1. BASE RENT: Three Hundred Thirty-Three Thousand
Dollars ($333,000.00) PER ANNUM, payable in equal monthly installments of
Twenty-Seven Thousand Seven Hundred Fifty Dollars ($27,750.00).
2. BROKER: Equis Corporation.
3. BUILDING: The building located at 0000 00xx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. located on the Land.
4. COMMENCEMENT DATE. Determined pursuant to
Paragraph 3.
5. PREMISES: The entire Building, containing
approximately 20,000 gross square feet of space, and the Land.
6. EFFECTIVE DATE: The date of execution hereof by both
Landlord and Tenant.
7. LAND: The Land upon which the Building is situated,
as more particularly described in EXHIBIT A hereto.
8. LANDLORD'S ADDRESS: 0000 X Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, Attention: Xx. Xxxxxxxx X. Xxxxxxx and Xx. Xxxxxxx
Xxxxxx.
9. PERCENTAGE RENT: Four and one-half percent (4.5%) of
Gross Receipts in excess of (i) Eleven Million Dollars ($11,000,000.00) in any
Lease Year during the first fifteen and one-half (15 1/2 years) of the Term,
(ii) Fifteen Million Dollars ($15,000,000.00) in any Lease Year during the first
Renewal Term, and (iii) Twenty One Million Three Hundred Seventy Five Thousand
Dollars ($21,375,000.00) in any Lease Year during the second Renewal Term. In
each case, the Percentage Rent shall be determined, in arrears, in accordance
with Paragraph 6 below.
10. SECURITY DEPOSIT: None.
11. TERM: Fifteen and one-half (15 1/2) years,
commencing on the Commencement Date and ending, in all events, fifteen and
one-half (15 1/2) years from the last day of the month in which the Commencement
Date occurs, unless extended pursuant to Paragraph 3.2 below or earlier
terminated pursuant to the provisions of this Lease.
12. GUARANTOR: The New York Restaurant Group, Inc., a
Delaware corporation.
13. GUARANTY: That certain Guaranty of even date
herewith from Guarantor in favor of Landlord guarantying full payment and
performance of Tenant's obligations under this Lease.
B. ADDITIONAL DEFINITIONS
1. ADDITIONAL RENT: Any and all amounts required to be
paid by Tenant pursuant to the provisions of this Lease (including, but not
limited to, the payments to be made pursuant to Paragraphs 6 through 10 and 23
hereof, but excluding Monthly Base Rent) and any charges or expenses paid or
incurred by Landlord on behalf of Tenant pursuant to this Lease.
2. ALTERATIONS: Any improvements, alterations, fixed
decorations or modifications, structural or otherwise, to the Premises,
including, but not limited to, the installation, substitution, alteration, or
modification of carpeting, partitions, fixtures, counters, doors,
air-conditioning ducts, plumbing, piping, lighting fixtures and wiring of any
kind, hardware, locks, ceilings, window and wall coverings and the like, but
specifically excluding Tenant's Property (as defined in Paragraph 1.B.11 below).
3. GROSS RECEIPTS: The entire amount of the actual
receipts, whether for cash or otherwise, of all sales of food, liquor,
merchandise, service or any other receipt whatsoever of all business conducted
in or from the Premises (including any sidewalk or other public areas that
Tenant is able to use or to obtain access) during the applicable period,
including, but not limited to, mail orders, telephone orders and/or other orders
in whatever manner received or filled, whether in whole or in part, at the
Premises, (including any sidewalk or other public areas that Tenant is able to
use or to obtain access) and including all deposits not refunded to purchasers,
orders taken, sales to employees, sales through vending machines or other
devices, and sales by any subtenant, concessionaire or licensee or otherwise in
or from the Premises, provided that nothing herein shall prevent Landlord from
requiring an additional or different Percentage Rent as a condition to approval
of any subtenant, concessionaire or licensee hereunder. No deduction shall be
allowed for uncollected or uncollectible accounts, any income or similar tax
based on income or any gross receipts tax. Gross Receipts shall not include any
(i) sales tax, use tax, or any other tax separately collected by Tenant or paid
to any duly constituted governmental authority, (ii) the exchange of merchandise
between the restaurants or stores of Tenant, if any, where such exchange of
goods or merchandise are made solely for the convenient operation of the
business of Tenant and not for the purpose of consummating a sale which had
theretofore been made at, in, from or upon the Premises and/or for the purpose
of depriving Landlord of the benefit of a sale which otherwise would be made at,
in, from or upon the Premises, (iii) the amount of returns to shippers or
manufacturers, (iv) the amount of any cash or
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credit refund made upon any sale where the merchandise sold, or some part
thereof, is thereafter returned by the purchaser and accepted by Tenant, but
only to the extent of such refund, if the selling price of such merchandise was
previously included in Gross Receipts, (v) sales of Tenant's store fixtures, and
(vi) the amount of any sales to employees or sales made pursuant to a customer
promotional program, except to the extent of amounts charged for the same (the
exclusions set forth in clauses (i) through (vi) are collectively referred to as
the "Exclusions"). Notwithstanding anything in the Lease (including this
Paragraph I B 3) to the contrary, the aggregate amount of the Exclusions shall
not exceed three (3) percent of Gross Receipts in any Lease Year.
4. GROUND LEASES: All ground and other underlying leases
from which Landlord's title to the Land and/or the Building is or may in the
future be derived. "Ground Lessors" shall denote those persons and entities
holding such ground or underlying leases.
5. HOLIDAYS: New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
6. LEASE YEAR: That period of twelve (12) consecutive
calendar months commencing on the first day of the calendar month in which the
Commencement Date occurs, and each consecutive twelve (12)-month period
thereafter.
7. MONTHLY BASE RENT: Equal monthly installments of
one-twelfth (1/12th) of the Base Rent.
8. REAL ESTATE TAXES: Taxes and assessments, general or
special, ordinary or extraordinary, foreseen or unforeseen, assessed, levied or
imposed upon the Building or the Land, or assessed, levied or imposed upon the
fixtures, machinery, equipment or systems in, upon or used in connection with
the operation of the Building or the Land under the current or any future
taxation or assessment system or modification of, supplement to, or substitute
for such system, and whether or not based on or measured by the receipts or
revenues from the Building or the Land (including all taxes and assessments for
public improvements or any other governmental purpose, charges of any business
improvement district, and any gross receipts or similar taxes). Real Estate
Taxes shall include the reasonable expenses (including, but not limited to,
reasonable attorneys' fees) incurred by Landlord in obtaining or attempting to
obtain a reduction of such taxes, rates or assessments. Real Estate Taxes shall
not include any estate, inheritance, succession, capital levy, corporate
franchise, transfer or income tax of Landlord. If there is any change by the
taxing body in the period for which any of the Real Estate Taxes are levied,
assessed or imposed, Landlord shall have the right, in its reasonable
discretion, to make appropriate adjustments with respect to computing increases
in Real Estate Taxes provided Tenant is not thereby unduly prejudiced.
9. RENT: All Base Rent and Additional Rent.
10. TENANT'S PERSONAL PROPERTY: All equipment,
machinery, improvements, furniture, furnishings and other property now or
hereafter installed or placed in or on the Premises by and at the sole expense
of Tenant or with Tenant's permission (other than any
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property of Landlord) with respect to which Tenant has not been granted any
credit or allowance by Landlord and which (a) is not used, or was not procured
for use, in connection with the operation, maintenance or protection of the
Premises, the Building or the Land, and (b) is removable without damage to the
Premises, the Building or the Land and (c) is not a replacement of any property
of Landlord, whether such replacement is made at Tenant's expense or otherwise.
Notwithstanding any other provision of this Lease, Tenant's Personal Property
shall not include any Alterations or any improvements or other property
installed or placed in or on the Premises as part of the Tenant Work, whether or
not any such property was purchased or installed at Tenant's expense. Tenant's
Personal Property shall include its furniture, equipment, logos and Removable
Trade Fixtures (as defined below). For purposes hereof, "Removable Trade
Fixtures" shall mean Tenant's (i) removable decor items and office equipment,
(ii) signs, sign posts and sign standards, and (iii) food and customer service
equipment (including, without limitation, walk-in refrigerators and freezers,
remote refrigeration system and exhaust systems and hoods).
11. TENANT WORK: The initial improvements to the
Building to be performed by Tenant, as more particularly described in EXHIBIT D
hereto.
12. WORK AGREEMENT: The Work Agreement between Landlord
and Tenant attached hereto as EXHIBIT D.
2. PREMISES. For and in consideration of the Rent reserved and the mutual
covenants contained in this Lease, Landlord does hereby lease and demise unto
Tenant, and Tenant does hereby lease and accept from Landlord, the Premises for
the Term and upon the terms and conditions set forth in this Lease. Any
approximations of square footage contained in this Lease shall in no way affect
the payment of Rent under this Lease should any variance be found to exist
between said approximation and the actual square footage. Landlord represents to
Tenant that it owns the Premises
3. TERM; COMMENCEMENT DATE; PERMITS, ETC.
3.1 COMMENCEMENT DATE. The Commencement Date shall occur upon the
earlier to occur of: (i) the date Tenant opens a restaurant for business to the
public from the Premises or (ii) one-hundred eighty (180) days after Landlord
delivers to Tenant possession of the Premises free of other tenancies. The Term
shall commence upon the Commencement Date and shall expire on the date that is
fifteen and one-half (15 1/2) years following the day prior to the Commencement
Date, unless extended or earlier terminated pursuant to the provisions of this
Lease (such date as extended pursuant to Paragraph 3.2 below or earlier
termination is hereinafter referred to as the "Lease Expiration Date"). This
Lease shall otherwise become effective upon the Effective Date, except that all
payments of Base Rent and Additional Rent hereunder shall commence as of the
Commencement Date. If Landlord has not delivered the Premises to Tenant on or
before February 15, 1999, then this Lease shall not be void, voidable or, except
as set forth in the next sentence, subject to termination, nor shall Landlord be
liable to Tenant for any loss or damage resulting from any failure of Landlord
to deliver the Premises to Tenant on or before such date. If the Premises have
not been delivered before such date, Tenant shall have the right to terminate
this Lease any time after February 15, 1999 and before Tenant's receipt of a
Delivery Notice (as defined below). If Landlord has been unable to deliver the
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Premises by January 1, 2000, then either Landlord or Tenant may terminate this
Lease at any time upon written notice. For purposes of this Lease, a Delivery
Notice shall mean and refer to a written notice to Tenant setting a date within
thirty (30) days of such notice by which Landlord states that it shall deliver
the Premises to Tenant.
3.2 RENEWAL OPTION. Tenant is granted the option to extend the Term
for two (2) extended terms of five (5) years each (each, a "Renewal Term"),
provided that (i) Tenant is not in default at the time of exercise of each
respective option or on the first day of such Renewal Term, and (ii) Tenant
gives Landlord written notice of its exercise of the option at least three
hundred sixty-five (365) days prior to the expiration of the Term or the first
Renewal Term, as the case may be. Each Renewal Term shall be upon the same
terms, conditions and rental, except that the Base Rent shall be increased to
(i) Five Hundred Forty Thousand Dollars ($540,000.00) per year during the first
Renewal Term, and (ii) Eight Hundred Thousand Dollars ($800,000.00) during the
second Renewal Term. In addition, for each Lease Year during each Renewal Term,
Tenant shall pay the Percentage Rent.
3.3 DECLARATION. Landlord and Tenant agree to execute a Declaration,
in the form attached hereto as Exhibit B, to confirm the Commencement Date and
other matters set forth thereon. Failure to execute the Declaration shall
constitute a default under this Lease, but shall not affect the commencement or
expiration of the Term.
4. RENT; MONTHLY BASE RENT; ALLOWANCE AND ABATEMENT.
4.1 MONTHLY BASE RENT. The first payment of Monthly Base Rent shall
be due on the Effective date and thereafter shall be payable on the first day of
each and every month as and when due during the Term. If the Commencement Date
is a date other than the first day of a month, however, Rent for the period
commencing with and including the Commencement Date and ending on and including
the day prior to the first day of the following month shall be prorated at the
rate of one-thirtieth (1/30th) of the Monthly Base Rent per day. All payments of
Rent shall be payable to Landlord at Landlord's Address, in lawful money of the
United States, without previous notice or demand and without deduction, set-off
or counterclaim whatsoever. Landlord shall have the right to change the place
where Rent shall be paid by written notice to Tenant.
4.2 RENT CREDIT. Landlord hereby agrees to provide Tenant with a
rent credit in the aggregate amount of Eighty-Two Thousand Five Hundred Dollars
($82,500.00) (the "Rent Credit"). The Rent Credit shall be amortized (and
realized by Tenant) without interest on a straight-line basis over the initial
two (2) Lease Years, such that beginning upon the Commencement Date the Monthly
Base Rent shall be reduced by Three Thousand Four Hundred Thirty-Seven and
50/100 Dollars ($3,437.50) during each month of such two (2)- Lease Year period
($3,427.50 x 24 months = $82,500.00). In addition to the Rent Credit, Landlord
hereby agrees to provide Tenant with an additional rent credit (the "Additional
Rent Credit"), in an amount not to exceed Twenty-Five Thousand and No/100
Dollars ($25,000.00) for any costs incurred by Tenant directly related to
upgrading the utility services to the Building, which Additional Rent Credit
shall be credited in the same manner and over the same time period as the Rent
Credit. Tenant shall provide written receipts to Landlord evidencing the amounts
paid by Tenant for such upgrading. Thereafter, Landlord shall deliver written
notice to Tenant
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confirming the amount of the Additional Rent Credit or questioning the amount or
nature of such costs for purposes of this Paragraph 4.2.
5. ACCEPTANCE OF THE PREMISES. Taking possession of the Premises by Tenant
shall be conclusive evidence that Tenant: (a) accepts the Premises as suitable
for the purposes for which they are leased; (b) accepts the Premises and every
part and appurtenance thereof as being in a good and satisfactory condition; and
(c) accepts the Premises in "As Is" condition and waives any defects in the
Premises. Tenant shall not occupy or use the Premises prior to the Commencement
Date without Landlord's prior consent and unless all provisions of the Lease
shall be in full force and effect. Landlord shall not be liable to Tenant or any
of Tenant's agents, employees, licensees, servants, or invitees for any injury
or damage to person or property due to the condition or design of or any defect
in the Building or its mechanical systems and equipment which may exist or
occur. Tenant, for itself and its agents, employees, licensees, servants, and
invitees, expressly assumes all risks of injury or damage to person or property,
either proximate or remote, resulting from the condition of the Premises or any
part thereof. Notwithstanding anything to the contrary in this Lease, Landlord
represents to Tenant that, except as set forth in that certain letter report of
AMN Engineers dated February 1, 1994, Landlord has no actual knowledge of any
structural defects in the Building.
6. PERCENTAGE RENT.
6.1 CALCULATION. For each Lease Year or portion thereof during the
Term (including any Renewal Term), Tenant shall pay to Landlord, as "Percentage
Rent" hereunder, an amount equal to four and one-half percent (4.5%) of the
Gross Receipts in excess of (i) Eleven Million Dollars ($11,000,000.00)
attributable to such Lease Year during the initial fifteen and one half (15 1/2)
years of the Term, (ii) fifteen Million Six Hundred Thousand Dollars
($15,600,000.00) attributable to each Lease Year during the first Renewal Term,
and (iii) Twenty One Million Three Hundred Seventy Five Thousand Dollars
($21,375,000.00) attributable to each Lease Year during the second Renewal Term,
in each case payable monthly in arrears. Such Percentage Rent shall be in
addition to the Base Rent and other Additional Rent payable hereunder. Anything
contained in this Lease to the contrary notwithstanding, there shall be no
abatement, apportionment or suspension of the Percentage Rent payable hereunder.
Commencing with the first (1st) Lease Year of the Term, and continuing
throughout the remainder of the Term, the payment of Percentage Rent due under
this Lease shall be calculated annually in accordance with the provisions of
this Paragraph 6.1 and shall be payable as provided in Paragraph 6.2 below.
6.2 PERIODIC PAYMENT AND REPORTING. Within sixty (60) days after the
expiration of each Lease Year, Tenant shall deliver to Landlord (i) a statement
certified without material qualification by the independent certified public
accountant regularly retained by Tenant, or a "Big Five" accounting firm or such
other accounting firm as may be approved by Landlord in its sole and absolute
discretion, setting forth the amount of Tenant's Gross Receipts for each such
Lease Year and (ii) payment of the Percentage Rate. If the accountants'
certification does not verify the amount of Gross Receipts for any Lease Year,
Tenant shall deliver to Landlord, together with the conflicting accountants'
certification, a written statement by the accountants who prepared such
certification explaining the discrepancy. Tenant shall
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require its subtenants, if any, to furnish similar statements to Tenant within
the same periods specified. For the last Lease Year, the statements of Gross
Receipts shall end with the expiration or termination of this Lease. All such
statements of Gross Receipts shall list as separate amounts (a) Gross Receipts
upon which Percentage Rent shall be computed and (b) other categories of
receipts not subject to Percentage Rent. If Tenant fails to timely deliver any
of the annual reports required by this Paragraph 6.2, Tenant shall pay Landlord,
a late charge fee in accordance with Paragraph 10 hereof.
6.3 RECORDS MAINTENANCE. For the purpose of ascertaining the amount
payable as Percentage Rent, Tenant agrees to prepare and keep on the Premises
for a period of not less than three (3) years following the end of each Lease
Year adequate records which shall show inventories and receipts of food, liquor
and merchandise at the Premises, and daily receipts from all sales and other
transactions and any other persons conducting any business upon or from the
Premises, including subtenants, licensees or concessionaires. Tenant shall
record at the time of each sale or other transaction, all receipts from sales or
other transactions whether for cash or credit in a cash register or in cash
registers sealed in a manner approved by Landlord and having such other features
as shall be approved by Landlord. Tenant further agrees to keep on the Premises
for three (3) years following the end of each Lease Year adequate records in
keeping with Generally Accepted Accounting Principles ("GAAP") evidencing the
gross income, sales and tax returns with respect to such Lease Years and all
pertinent original sales records, which may include: (a) cash register tapes,
including tapes from temporary registers; (b) serially numbered sales slips; (c)
the originals of all mail orders at and to the Premises; (d) the original
records of all telephone orders at and to the Premises; (e) settlement report
sheets of transactions with subtenants, concessionaires and licensees; (f) the
original records showing that merchandise returned by customers was purchased at
the Premises by such customers; (g) memorandum receipts or other records of
merchandise taken out on approval; (h) such other sales records, if any, which
would normally be examined by an independent accountant pursuant to accepted
auditing standards in performing an audit of Tenant's sales; and (i) the records
specified in (a) through (h) above of any subtenants, assignees,
concessionaires, or licensees. Landlord and Landlord's authorized
representatives shall have the right to examine the foregoing records during
reasonable business hours.
6.4 AUDIT RIGHTS. Landlord shall have the right to have an audit
made of Tenant's books and records pertaining to sales at the Premises. If any
statement required by Paragraph 6.2 above is found to differ by more than three
percent (3%) from the audited amount, Tenant shall pay for any and all costs and
fees of such audit and any deficiency in Percentage Rent within fifteen (15)
days after notice from Landlord, and if such audit proves such statements to be
correct, or such statements collectively do not vary by more than three percent
(3%) from the results of the audit, then the expenses of such audit shall be
borne by Landlord. In the event Landlord is unable to conduct a proper
examination and/or audit, in the reasonable judgment of Landlord's auditor due
to Tenant's failure or inability to produce adequate records, the parties agree
that Landlord shall have been deprived of an important right under this Lease
and, as a result thereof, will suffer damages in an amount which is not readily
ascertainable; therefore, in addition to, and not in lieu of, any other remedies
which Landlord has under this Lease, at law or in equity, shall have the right,
at its option, to collect, as liquidated damages (and not as a penalty), an
amount equal to fifteen percent (15%) of the greater of (i) Percentage
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Rent reported for the period or periods in question or (ii) the Base Rent
payable for the period or periods in question.
6.5. RADIUS RESTRICTION.
6.5.1 Except as expressly provided in Paragraph 6.5.2 below,
during the Term, neither Tenant nor Tenant's management, or any person or entity
controlled by Tenant or controlling Tenant (including, without limitation, the
New York Restaurant Group, Inc.), or controlled by the same person or entity or
persons or entities who control Tenant (individually and collectively, the
"Tenant Affiliate"), shall own, operate or maintain, or have any significant
affiliation, investment or interest, directly or indirectly, through or with any
other person, partnership, corporation, agent or employee in any similar or
competing business as that being operated at the Premises, within a radius of
five (5) miles from the Premises (which distance shall be measured in a straight
line without reference to road mileage) (the "Restricted Area"). Tenant
acknowledges that Landlord's obtaining a fair and equitable rental for the
Premises under this Lease is dependent upon Tenant's concentrating its business
efforts within the geographical area in which the Premises are located so as to
maximize the Gross Receipts, and Tenant further acknowledges that any activity
by Tenant within such geographical area in operating or participating in the
operation of a similar or competing business shall necessarily have an adverse
effect on the volume of Gross Receipts by Tenant at the Premises to the
detriment of Landlord and will deprive Landlord of the fair rental to which the
parties have agreed. Accordingly, in the event that during the Term there is a
breach of the covenant set forth in the first sentence of this Paragraph 6.5,
then the Gross Receipts of any such other place of business shall be included in
the Gross Receipts made from the Premises to determine the Percentage Rent due
under this Lease, as fully as though such Gross Receipts had actually been made
from the Premises. In such event, all of the provisions of this Paragraph 6
shall be applicable to the Gross Receipts of, and all the books and records
pertaining to, such competing restaurants.
6.5.2 Notwithstanding anything to the contrary in Paragraph
6.5.1 above, a Tenant Affiliate shall have the right to open and operate an
Existing Restaurant Concept (as defined below) of Guarantor, other than a
Xxxxx & Wollensky steakhouse, grill or similar concept or any other
restaurant with a theme that has been introduced into the Premises
(collectively, the "S & W Concept") in the Restricted Area. The term
"Existing Restaurant Concept" shall mean any of the following restaurant
concepts operated by Guarantor or its affiliates as of the date of this
Lease: The Manhattan Ocean Club, Cite, Xxxxxxx & Xxxxxxxx, and Park Avenue
Cafe, but expressly excluding the S & W Concept). Neither Tenant nor any
Tenant Affiliate shall open or operate any S & W Concept in the Restricted
Area (other than at the Premises) during the Term.
7. REAL ESTATE TAXES. Base Year Real Estate Taxes are included as a
portion of Base Rent. "Base Year Real Estate Taxes" are hereby defined as the
lesser of (i) the Real Estate Taxes for the second Lease Year or (ii) Sixty
Thousand Dollars ($60,000.00). For the second Lease Year and each Lease Year
during the Term (including any Renewal Term), Tenant shall pay all real estate
taxes in excess of the Base Year Real Estate Taxes, calculated (if Landlord so
elects) on a semi-annual basis. Landlord shall provide Tenant with (i) copies of
all bills for Real Estate Taxes arising during the prior Lease Year or a part
thereof, (ii) determine the actual Real Estate Taxes for such Lease Year or a
part thereof, and (iii) provide to Tenant a statement of the
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amount payable by Tenant on account of Real Estate Taxes for such period (but
Tenant shall not be relieved of any of its obligations hereunder in the event
Landlord's expense statement is not provided semi-annually). Within thirty (30)
days after the delivery of such statement, Tenant shall pay to Landlord any
excess of Real Estate Taxes, over the Base Year Real Estate Taxes, calculated
(if Landlord so elects) on a semi-annual basis. Tenant's liability for the final
payment of Real Estate Taxes shall survive the expiration or termination of the
Term. Landlord represents to Tenant that as of July 1, 1998, the real estate tax
assessment for the Premises is Two Million Seventy Six Thousand Eight Hundred
Dollars ($2,076,800) and the applicable real estate tax rate is Two Dollars and
Fifteen Cents ($2.15) per One Hundred Dollars ($100.00) of assessment.
8. SALES, USE OR OTHER TAXES. If, during the Term (including any Renewal
Term), any governmental authority having jurisdiction levies, assesses or
imposes any tax on the Premises or any part thereof or the rents payable
hereunder, in the nature of a sales tax, a use tax (including a gross receipts
tax) or any other tax except (a) income taxes (including corporate franchise or
unincorporated business taxes); (b) estate or inheritance taxes; or (c) Real
Estate Taxes, Tenant shall pay the same to Landlord as Additional Rent at the
time of, and together with, the first payment of Monthly Base Rent due following
receipt by Tenant of written notice of the amount of such tax. If any such tax
is levied, assessed or imposed and the amount of the tax required to be paid by
Tenant is not ascertainable because the tax relates to more than the Premises or
the rents payable hereunder, then Tenant shall pay such share of the total taxes
that Landlord shall reasonably estimate.
9. PERSONAL PROPERTY TAXES. Tenant shall pay, before delinquency, all
taxes, assessments, license fees and other charges that are levied or assessed
against Tenant's Personal Property installed or located in or on the Premises
and against the value of leasehold improvements that become payable during the
Term, any business and professional occupational license taxes or fees
applicable to Tenant. On demand by Landlord, Tenant shall furnish Landlord with
satisfactory evidence of these payments. If any of such taxes or fees are levied
against Landlord or Landlord's property, or if the assessed value of the Land or
the Building is increased by the inclusion of a value placed on Tenant's
Personal Property, and if Landlord pays the taxes on any of these items or the
taxes based on the increased assessment of these items, Tenant, on demand, shall
reimburse Landlord for the sum of the taxes levied against Landlord, or the
proportion of the taxes resulting from the increase in Landlord's assessment.
10. LATE CHARGE; INTEREST. All payments of Monthly Base Rent, Percentage
Rent and Additional Rent shall be paid to Landlord, without notice or demand,
and without any setoff, deduction or counterclaim whatsoever. All payments of
Additional Rent due hereunder shall be paid with the installment of Monthly Base
Rent next due after such Additional Rent shall have accrued. Nothing contained
in Paragraphs 6 through 10 or elsewhere herein shall be construed at any time to
reduce the amount of Monthly Base Rent as increased each year. Notwithstanding
any dispute which may arise in connection with the computation or estimate of
the amount of Additional Rent due, Tenant shall be obligated to pay the amount
reasonably specified by Landlord, pending the resolution of any dispute. Any
installment of Monthly Base Rent, Percentage Rent or Additional Rent not paid
within five (5) days of the due date thereof shall be subject to a late charge
of five percent (5%) of such installment. In addition, such unpaid installment
shall bear interest until paid at the rate of the lower of (i) eighteen percent
(18%) per annum or (ii) the maximum rate of interest permitted by law. Tenant's
obligations to pay any
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amounts of Monthly Base Rent, Percentage Rent and Additional Rent shall survive
the expiration or termination of this Lease.
11. USE OF PREMISES; CONTINUOUS OPERATION
11.1 USE. During the Term (including any Renewal Term), the
Premises shall be used and occupied by Tenant solely for the purpose of
operating a white table cloth restaurant and food service establishment,
similar to any of Tenant's existing restaurant concepts, serving liquor for
on-premises consumption, and for no other purpose whatsoever. In addition,
the Premises shall not be used for any illegal purpose or in violation of any
applicable law, or in any manner which could or might (i) create any nuisance
or trespass; (ii) violate any of the covenants, agreements, terms, provisions
and conditions of this Lease, or of any lien, covenant or encumbrance which
runs with the Land and thereby affects the Building; or (iii) impair the
appearance or reputation of the Building. Tenant shall have unlimited access
to the Premises for deliveries of goods and the removal of wastes. Tenant
shall have the right to inspect the Building to determine if it can be used
for rooftop patio dining. If Tenant determines that the Building is suitable
for such use, subject to the other provisions of this Lease, Tenant may, at
its expense and without liability to Landlord, perform any upgrades to the
Building necessary to allow and support such use. In connection with such
upgrades, Landlord, upon the written request of Tenant, shall reasonably
cooperate with Tenant in respect of any required filings, provided the same
do not cause Landlord to incur any expense nor create any liability for
Landlord.
11.2 CONTINUOUS OPERATION.
(a) Tenant hereby covenants, warrants and represents that it
will occupy the Premises on the Commencement Date (or as soon thereafter as
Tenant shall have completed its Tenant Work). Tenant shall accept the Premises
in their "as is-where is" condition on the Effective Date. Tenant hereby further
covenants, warrants and represents that at all times during the Term hereof,
Tenant shall continuously and uninterruptedly operate a full-service, sit-down,
white table cloth restaurant from the Premises of the type described in
Paragraph 12.1. In no event shall Tenant be permitted to be open for business
beyond the hours of operating permitted pursuant to the laws of the District of
Columbia. If Tenant shall fail to (i) open for business within sixty (60) days
after the Commencement Date or (ii) remain open for business as herein provided
at the hours set forth herein, the same shall constitute a material breach of
this Lease giving rise to the remedies provided in this Lease and available at
law or in equity, and in addition Landlord shall be entitled, among its other
remedies, to (x) collect from Tenant an amount equal to all Monthly Base Rent
due under this Lease PLUS an additional amount (which shall constitute
Additional Rent under this Lease) of twelve percent (12%) of the Monthly Base
Rent per day for each and every day until the date Tenant fully utilizes the
Premises for Tenant's business pursuant to this Lease, (y) terminate this Lease
or exercise any of the remedies set forth in Xxxxxxxxx 00 xxxxx, xx (x) enjoin
the removal or discontinuance of Tenant's business from the Premises by seeking
injunctive relief or other appropriate remedy. The operating covenant set forth
herein shall not be violated on account of closings attributable to Holidays,
closings one (1) day a week, one (1) two (2) week vacation period each Lease
Year, any casualty or condemnation, strike, natural disaster, alterations or
refurbishings diligently prosecuted or other
-10-
events beyond Tenant's reasonable control (such events being referred to herein
as "Permitted Closings").
(b) Tenant shall not allow any objectionable odors to emanate
from the Premises. With respect to objectionable odors which emanate or are
dispelled from the Premises, Landlord shall have the right to require Tenant to
take all actions which Landlord deems appropriate to eliminate such odors,
including, without limitation, requiring Tenant to clean and maintain all of its
equipment in a first-class manner to assure that it is operating properly,
requiring Tenant to comply with operating techniques expected of similar
restaurant operations, requiring Tenant to install, repair or replace any
exhaust, ventilation, or air filtration systems within the Premises which
Landlord deems appropriate, and/or requiring Tenant to make any other capital
improvements within the Premises which Landlord reasonably deems appropriate.
(c) Tenant shall conduct no distress sales, such as `going out
of business', fire, or bankruptcy sales on the Premises or elsewhere in the
Building, and default by reason of Tenant's conducting such a sale shall
constitute a default under this Lease entitling Landlord to the remedies
provided in this Lease and available at law or in equity, including, but not
limited to, injunctive relief or other appropriate remedy.
12. ADDITIONAL MATTERS. With regard to use and occupancy of the Premises,
Tenant will (i) keep the inside and outside of all glass in the doors and
windows of the Premises clean; (ii) keep all exterior store front surfaces of
Premises clean; (iii) keep the Premises clean at all times, including removal of
ice and snow; (iv) replace promptly, at its expense, any cracked or broken plate
or window glass of the Premises with glass of like kind and quality; (v)
maintain the Premises and any garbage or dumpster areas at its expense in a
clean, orderly and sanitary condition and free of insects, rodents, vermin and
other pests; (vi) remove all garbage, trash, rubbish or refuse from the Premises
at its expense on a regular basis; (vii) keep all mechanical apparatus free of
vibration and noise which may be transmitted beyond the Premises; (viii) comply
with all laws, ordinances, rules and regulations of governmental authorities and
all reasonable requirements and recommendations of Landlord's fire insurance
carrier now or hereafter in effect; (ix) procure and maintain, at its sole cost
and expense, any permits and license required in the transaction of Tenant's
business at the Premises or adjacent sidewalks; in connection with such
upgrades, Landlord, upon the written request of Tenant, shall reasonably
cooperate with Tenant in respect of any required filings, provided the same do
not cause Landlord to incur any expense nor create any liability for Landlord;
and (x) take such action as may be necessary to prevent water damage to the
Premises in the event of forecasted flooding, including, without limitation,
surrounding the perimeter of the Building with plastic and a sandbag barrier.
Tenant will not (I) place or maintain any merchandise or other articles in any
vestibule or entry of the Premises, on the sidewalks adjacent thereto or
elsewhere on the exterior of the Premises; (II) use or permit the use of any
objectionable advertising medium such as, without limitation, loud speakers,
phonographs, public address systems, sound amplifiers, radio or broadcasts
within the Building which is in any manner audible or visible outside of the
Premises; (III) permit undue accumulations of garbage, trash rubbish or other
refuse within or without the Premises; (IV) cause or permit objectionable odors
to emanate or be dispelled from the Premises onto the adjacent sidewalks; or (V)
solicit business on the adjacent sidewalks.
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13. REPAIRS BY TENANT. Tenant agrees to maintain the Premises and the
fixtures and systems therein (including, without limitation, all interior
structural elements of the Building) in good order, repair and condition, during
the Term at its sole cost and expense, and will, at the expiration or other
termination of the Term, surrender and deliver the same and all keys, locks and
other fixtures connected therewith (except only Tenant's Personal Property) in
the same good order, repair and condition as they are now in or shall be in at
the Commencement Date, except as repaired, rebuilt, restored, altered or added
to as permitted or required by this Lease, and ordinary wear and tear and damage
by casualty or condemnation excepted. Tenant shall be solely responsible for
keeping the Premises in good condition and repair throughout the Term,
including, but not limited to, making all required and necessary repairs and
replacements to the doors, light bulbs and fixtures (including tubes and
casings), windows, glass, ceiling, mechanical, electrical and plumbing equipment
of the Premises. The plumbing facilities shall not be used for any purpose other
than that for which they are constructed and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage or damage
resulting from a violation of this provision shall be Tenant's liability. Tenant
shall also initiate and carry out a program of regular maintenance and repair of
the Premises, including, but not limited to, (i) the painting or refinishing of
all areas of the interior and maintaining or replacing of all trade fixtures and
equipment, ceiling tile, flooring and other items of display used in the conduct
of Tenant's business, so as to impede, to the extent possible, deterioration by
ordinary wear and tear and to keep the same in attractive condition throughout
the Term and (ii) obtaining and maintaining, at Tenant's cost, service contracts
with reputable, licensed mechanical contractors reasonably acceptable to
Landlord to carry, out a program of regular maintenance and repair of the
heating, air-conditioning and ventilating systems, including, but not limited
to, the replacement of any filters. The HVAC service contract must include all
services suggested by the equipment manufacturer in the operating/maintenance
manual for the HVAC system, and must become effective as of the Commencement
Date. Within thirty (30) days prior to the expiration date hereof, Tenant shall
have the HVAC system checked and serviced to insure proper functioning and shall
furnish Landlord with satisfactory proof thereof. Tenant shall make all repairs
to the Premises necessitated by any act or omission of Tenant or its agents,
employees, or invitees. Tenant shall be responsible for the cleaning and
maintenance of all grease traps within the Premises. To this end, Tenant
covenants to enter into a grease trap cleaning contract reasonably acceptable to
Landlord on or prior to the Commencement Date, and to furnish Landlord with a
copy thereof. Tenant shall not place a load upon the floor of the Premises
contrary to the weight, method of installment and position approved by Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed. No
equipment may be used or installed which will or may necessitate any changes,
replacements or additions to or require the use of the water system, plumbing
system, heating system, air conditioning system, security system or the
electrical system of the Premises without the prior written consent of Landlord
(except the provisions hereof shall not be applicable with respect to any Tenant
Work).
14. REPAIRS. Tenant agrees to maintain the foundation and exterior
structural elements of the Building and the roof and roof system, in good order,
repair and condition. Tenant shall have the obligation to make, at its sole cost
and expense, any structural and other repairs and replacements to the Building.
Landlord shall have no duty to Tenant to maintain or to make any repairs or
improvements to the Premises or any part thereof. Landlord shall not be liable
for any damage caused to the person or property of Tenant, its agents,
employees, sublessees, contractors or invitees arising from the leaking of gas,
water, sewer or steam pipes, or
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from electricity, or from any other cause whatsoever (other than the acts of
Landlord or its agents).
15. LAWS AND ORDINANCES. Tenant will obtain and maintain, at its sole cost
and expense, any and all certificates of occupancy for Tenant's use of the
Premises. It is expressly understood that if any future law, ordinance,
regulation, or order, or any change in the use of the Premises by Tenant,
requires a new certificate of occupancy for the Premises, Tenant will obtain
such permit at Tenant's own expense. Tenant will, at its own cost, promptly
comply with and carry out all orders, requirements or conditions now or
hereafter imposed upon Tenant or the Premises by the ordinances, laws, rules,
orders or regulations of the District of Columbia or the state in which the
Premises is located, whether required of Landlord or otherwise (it being
understood that, in all events, Tenant shall be responsible for complying with
all requirements of the Americans With Disabilities Act and all laws pertaining
to the collection, sorting, separation and recycling of trash). Tenant will
defend, indemnify and save Landlord harmless from all penalties, liabilities,
damages, costs, expenses, suits, claims and demands resulting from Tenant's
failure or negligence in this respect, unless caused by acts of Landlord or its
agents.
16. NO LANDLORD'S WORK; TENANT'S WORK; ALTERATIONS
16.1 LANDLORD'S WORK AND TENANT'S WORK. Tenant acknowledges that it
accepts the Premises in its "as-is" condition, and that Landlord is under no
obligation to make any improvements of any nature to the Premises. The parties
acknowledge that Tenant shall make certain initial improvements or "Tenant Work"
to the Premises in accordance with the terms and conditions set forth in the
Work Agreement attached hereto as EXHIBIT D.
16.2 ALTERATIONS BY TENANT. Tenant will not make or permit any
Alterations to the Premises or to the Building without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed; provided that Tenant may make minor, non-structural interior
Alterations costing less than Twenty Five Thousand Dollars ($25,000.00) per year
without Landlord's consent. Notwithstanding anything to the contrary in this
Lease, Tenant shall not construct any additional structures or add any
additional floors to the Building (subject to the final three (3) sentences of
Paragraph 11.1 above). If Landlord consents to any Alterations, Landlord may
impose any conditions it deems appropriate, including, without limitation, the
approval of plans and specifications, supervision of the work by Landlord's
architect or contractor, and satisfactory evidence from Tenant of Tenant's
ability to pay for such Alterations. Alterations may be made only at Tenant's
expense by contractors or subcontractors reasonably approved in writing by
Landlord, and only after Tenant shall have obtained any necessary permits from
all applicable governmental and quasi-governmental authorities having
jurisdiction, and furnished copies of the permits to Landlord. All Alterations
must conform to all rules and regulations established from time to time by the
Board of Fire Underwriters having jurisdiction or similar body exercising
similar functions and to all laws, regulations and requirements of the District
of Columbia or any state government (including, but not limited to, all rules
and regulations applicable to historical properties and the provisions of the
Americans With Disabilities Act). Tenant shall obtain and deliver to Landlord
written, unconditional waivers of mechanic's and materialmen's liens against the
Building and the Land from all contractors, subcontractors and material
suppliers for all work performed and materials furnished in connection with the
Alterations on a timely basis. All agreements with contractors performing
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Alterations shall limit their lien rights to the right to file a lien against
Tenant's leasehold interest in the Premises. Notwithstanding the foregoing, if
any mechanic's lien is filed against Landlord with respect to its interest in
the Building and/or the Land for work or materials done for or furnished to
Tenant, or claimed to have been done for or furnished to Tenant, the lien shall
be discharged by Tenant within thirty (30) days thereafter, solely at Tenant's
expense plus five percent (5%). If Tenant fails to discharge such lien Landlord
may do so and treat the cost thereof as Additional Rent; but such discharge by
Landlord shall not be deemed to waive the default of Tenant in not discharging
the same. Tenant will defend, indemnify and hold Landlord harmless from and
against any and all liabilities, costs (including reasonable attorneys' fees),
expenses, liens, suits, claims, demands or damage to persons or property which
may arise from the making of any Alterations. Except as expressly permitted
hereby, if any Alteration is made without the prior written consent of Landlord,
and Tenant fails to remove the same within twenty (20) days after written notice
from Landlord to Tenant, then Landlord may correct or remove the Alteration at
Tenant's expense, and all costs and expenses incurred by Landlord in connection
with the removal of any mechanic's lien or the correction or removal of the
Alternation plus five percent (5%) shall be payable as Additional Rent with the
next due payment of Monthly Base Rent.
17. OWNERSHIP OF ALTERATIONS AND EQUIPMENT AND OTHER PROPERTY; REMOVAL OF
TENANT'S PERSONAL PROPERTY
17.1 LANDLORD'S PROPERTY. Any Alterations and other property
installed or located in the Premises by or on behalf of either party shall
(except for Tenant's Personal Property) remain upon and be surrendered to
Landlord with the Premises as a part thereof upon the expiration or termination
of the Term; PROVIDED, HOWEVER, that if Tenant is not in default under this
Lease, Tenant shall have the right to remove, prior to the expiration of the
Term, Tenant's Personal Property, and provided further, that if Landlord shall
elect that any Tenant Work or any Alterations be removed at the expiration of
the Term, Tenant shall cause the same to be removed at Tenant's expense and
shall surrender the Premises to Landlord in the condition in which the Premises
were originally received from Landlord, except as repaired, rebuilt, restored,
altered or added to as permitted or required under this Lease and except for
ordinary wear and tear and damage by fire or condemnation, or shall reimburse
Landlord for the cost of doing so.
17.2 REMOVAL. Provided Tenant is not in default under this Lease
Tenant shall have the right to remove all of Tenant's Personal Property from the
Premises at the expiration or termination of this Lease. Tenant shall repair any
and all damage occasioned by such removal. Any property belonging to Tenant or
any other person, which is left in the Premises after the date the Lease has
expired or is terminated for any reason, shall be deemed to have been abandoned.
In such event, Landlord shall have the right to declare itself owner of such
property and to dispose of it in whatever manner Landlord considers appropriate
without waiving its right to claim from Tenant all expenses and damage caused by
Tenant's failure to remove the property, and Tenant shall not have any right to
compensation or claim against Landlord as a result.
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18. DAMAGE OR DESTRUCTION.
18.1 GENERAL PROVISIONS. If following any damage to the Premises by
fire or other insured casualty, restoration of the Premises is possible in
accordance with Landlord's reasonable estimate, within a period of twelve (12)
months from the date of the damage: (i) Landlord agrees to make all insurance
proceeds it may receive available for restoration of the Premises by Tenant
pursuant to the provisions set forth in Paragraph 18.2 hereof, up to the limit
of insurance proceeds received subject to any prior rights of any mortgagee to
such proceeds; and (ii) if the Premises are untenantable for Tenant's permitted
uses, in whole or in part, during such period of restoration by Landlord, the
Monthly Base Rent (but not Percentage Rent or Additional Rent) hereunder shall
be abated proportionately to the extent and for the period of such
untenantability; provided that, in all events, the abatement period shall expire
upon the earlier to occur of (w) expiration of such twelve (12) month period,
(x) such time as Tenant shall have substantially completed all of its
restoration obligations hereunder, (y) the date the Premises is otherwise
rendered tenantable, or (z) the date Tenant conducts business from the damaged
portion of the Premises.
18.2 RESTORATION BY TENANT. All work necessary to restore and repair
the Premises following any damage or casualty shall be performed by Tenant
pursuant to the provisions of this Paragraph 18.2, including, without
limitation, reconstruction, repair or restoration of exterior portions of the
Building (such work being referred to herein as the "Restoration Work"). All
Restoration Work shall be subject to all of the provisions of the Work Agreement
regarding Tenant Work (including, without limitation, Landlord's right to
approve plans and specification and the general contractor and the right to
oversee the work). Landlord shall advance any insurance proceeds which it
receives to Tenant to pay for the Restoration Work in accordance with
disbursement procedures typically required by lenders in District of Columbia
when making construction loans. Such disbursement procedures shall include,
without limitation: (i) implementation of customary retainage requirements; (ii)
delivery of certificates from the architect and the general contractor for the
Restoration Work and any architect or inspector engaged by Landlord to monitor
the same confirming that the work for which disbursement is being requested has
been properly performed pursuant to approved plans and specifications; (iii)
delivery of date-down endorsements to Landlord's title insurance policy prior to
making any disbursement; and (iv) delivery of lien waivers from all parties
performing materials, labor, goods or other services in connection with the
Restoration Work prior to making any disbursement. Tenant shall commence the
Restoration Work as soon as possible following any casualty, and shall
diligently prosecute the same to completion. Tenant's failure to promptly
commence and diligently prosecute the Restoration Work (including any design
work necessary therefor) shall constitute an Event of Default hereunder.
Landlord shall have the right, at any time, but shall not be required to,
relieve Tenant of its obligation to perform the Restoration Work and to perform
such work itself. Landlord shall have no obligation to advance funds for
replacement or repair any of Tenant's Personal Property or any property required
to be insured by Tenant pursuant to the provisions hereof; upon completion of
the foregoing repair or reconstruction work, Tenant shall proceed with all due
diligence to repair, restore or replace all of Tenant Personal Property and such
other property as it is required to insure, and shall prosecute the same to
completion.
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18.3 TERMINATION RIGHTS. If restoration is not possible, in
accordance with Landlord's reasonable estimate, within a period of twelve (12)
months, Landlord, at its sole option, shall have the right to terminate this
Lease by giving written notice thereof to Tenant within sixty (60) days after
the occurrence of such damage, in which event this Lease and the tenancy
hereunder, shall terminate as of the date specified in such notice, which date
shall be no later than one hundred twenty (120) days after the occurrence of
such damage. Further, in the event at least sixty percent (60%) of the Building
is damaged during the last eighteen (18) months of the Term, Landlord may
terminate this Lease by written notice to Tenant. No compensation or claim or
diminution of rent will be allowed or paid by Landlord by reason of
inconvenience, annoyance or injury to business, arising from the necessity of
repairing the Premises or any portion of the Building, however the necessity may
occur, as determined in the sole discretion of Landlord.
19. CONDEMNATION. If the Premises or any part thereof shall be taken or
threatened to be taken by any governmental or quasi-governmental authority
pursuant to the power of eminent domain, or by deed in lieu thereof, Tenant
agrees to make no claim for compensation in the proceedings (except as
specifically set forth below), and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of any such taking,
and this Lease shall terminate as to the portion of the Premises actually taken
by the condemning authority and Monthly Base Rent (but not Percentage Rent or
Additional Rent) shall be adjusted to such date. The foregoing notwithstanding,
Tenant shall be entitled to claim in the condemnation proceedings, such awards
as may be allowed for its relocation expenses and the unamortized value (over
the initial Term of this Lease) of the non-removable portions of the Tenant
Work, but only if such awards shall be made by the condemnation court in
addition to and stated separately from the award made by it for the Land and the
Building or part thereof so taken and does not reduce the amount of Landlord's
recovery. In no event shall Tenant be entitled to any award for the unexpired
portion of the Term of this Lease. If the nature, location or extent of any
proposed condemnation affecting the Building or the Land is such that Landlord
elects to demolish all or a portion of the Building, then Landlord may terminate
this Lease by giving at least sixty (60) days written notice of termination to
Tenant at any time after such condemnation and this Lease shall terminate on the
date specified in such notice. Monthly Base Rent shall be adjusted to such date.
In the event more than twenty percent (20%) of the Premises is taken in any
condemnation or similar proceeding, either Landlord or Tenant shall have the
right to terminate this Lease by written notice to the other given within thirty
(30) days after the taking. In the Lease is not so terminated, then this Lease
shall continue in full force and effect, except that the Base Rent payable
hereunder (but not the Percentage Rent, Percentage Rent or any Additional Rental
obligations of Tenant hereunder) shall be equitably adjusted based upon the
portion of the Premises so taken.
20. DEFAULTS; LANDLORD'S REMEDIES.
20.1 EVENTS OF DEFAULT. Any of the following occurrences or acts
shall constitute an event of default ("Event of Default") under this Lease:
(a) If Tenant shall fail to pay any Monthly Base Rent,
Percentage Rent or any Additional Rent within five (5) business days after
written notice from Landlord that the same is past due;
-16-
(b) Any default by Guarantor under the Guaranty.
(c) If the Premises shall become vacant, deserted or abandoned
for a period of at least five (5) consecutive days, except in connection with
any Permitted Closings; or
(d) If Tenant shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any federal or state bankruptcy
law or any similar federal or state law, or shall be adjudicated a bankrupt or
become insolvent or shall make an assignment for the benefit of creditors or
shall admit in writing its inability to pay its debts generally as they become
due; or
(e) If a petition or answer proposing the adjudication of
Tenant as a bankrupt or its reorganization pursuant to any federal or state
bankruptcy law or any similar federal or state law shall be filed in any court
and Tenant shall consent to or acquiesce in the filing thereof or such petition
or answer shall not be discharged or denied within sixty (60) days after the
filing thereof; or
(f) If a receiver, trustee or liquidator of Tenant of all or
substantially all of the assets of Tenant, or of the Premises or Tenant's estate
therein shall be appointed in any proceeding brought by Tenant, or if any such
receiver, trustee or liquidator shall be appointed in any proceeding brought
against Tenant and shall not be discharged within sixty (60) days after such
appointment; or
(g) If Tenant shall fail to maintain the insurance required
under Paragraph 22; or
(h) An assignment, sublease or other transfer or change in
restaurant concept in breach of Paragraph 25; or
(i) Tenant or a Tenant affiliate shall open or operate an S &
W Concept in the Restricted Area (other than at the Premises pursuant to this
Lease) during the Term.
(j) If Tenant shall fail to observe or perform any of the
covenants, conditions and agreements of this Lease other than those referred to
in Paragraph 20.1 (a) through (i) above, and such failure shall continue for a
period of thirty (30) days after written notice to Tenant of such failure;
provided, however, that if such failure is not reasonably capable of being cured
within such thirty (30)-day period, then so long as Tenant has commenced
curative action within such period and thereafter continues to diligently pursue
such curative action, such thirty (30)-day period shall be extended for the
period necessary to cure such default, but not more than ninety (90) days,
inclusive of the original thirty (30)-day period.
20.2 LANDLORD'S REMEDIES. If an Event of Default shall have occurred
and is continuing Landlord shall have the following rights and remedies then or
at any time thereafter, the election of which, singly or one or more in
combination with each other, shall be at the sole option of Landlord:
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(a) To make any payment required to be made by Tenant or to do
any act required to be done by Tenant, provided that the making of any such
payment or the expense of doing such act by Landlord shall constitute Additional
Rent hereunder due and payable together with interest and late charges with the
installment of Monthly Base Rent next due, but the making of such payment or the
doing of such act by Landlord shall not operate to cure such Event of Default or
to estop Landlord from the pursuit of any remedy to which Landlord would
otherwise be entitled.
(b) To terminate this Lease by written notice to Tenant,
whereupon this Lease shall end and all rights of Tenant (but not the liability
of Tenant) hereunder shall expire and terminate, any other notice to quit or
notice of Landlord's intention to re-enter the Premises being hereby expressly
waived by Tenant. Upon such termination by Landlord, Tenant will at once
surrender possession of the Premises to Landlord and remove all of Tenant's
Personal Property therefrom, and Landlord may forthwith re-enter and repossess
the Premises and remove all persons and effects therefrom, by summary
proceeding, ejectment or other legal action or by using such force as may be
permitted. Landlord shall be under no liability by reason of any such reentry,
repossession or removal.
(c) To enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying the Premises or
any part thereof, without being liable for prosecution or any claim for any
damages or liability therefor and without terminating this Lease, and, if
Landlord so elects, make such Alterations and repairs as, in Landlord's absolute
discretion, may be necessary to relet the Premises or any part thereof, without
notice to Tenant, for such rent and such use, and for such period of time and
subject to such terms and conditions as Landlord may deem advisable, and receive
the rent therefor. Upon each such reletting, all rent received by Landlord from
such reletting shall be applied, first, to the payment of any obligations of
Tenant to Landlord hereunder, including interest thereon, other than any Rent;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees, reasonable attorneys' fees and the costs of Alterations, and
repairs; third, to the payment of any Monthly Base Rent, Percentage Rent and
Additional Rent due and unpaid, together with interest and late charges; and the
residue, if any, shall be held by Landlord and applied in payment of future Rent
as the same may become due and payable hereunder. Tenant agrees to pay Landlord,
on demand, any deficiency that may arise by reason of such reletting. Landlord
shall not be liable for any failure to relet the Premises or any part thereof or
for any failure to collect any rent due upon any such reletting. Notwithstanding
any such reletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for such prior default.
20.3 EXTENT OF LIABILITIES. If Landlord terminates this Lease or
Tenant's right of possession of the Premises pursuant to Paragraph 20.2 hereof:
(a) Tenant shall remain liable for and shall pay on demand by
Landlord (i) the full amount of all Monthly Base Rent, Percentage Rent and
Additional Rent
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which would have accrued until the date on which this Lease would have expired
had such termination not occurred, and any and all damages and expenses incurred
by Landlord in reentering and repossessing the Premises, in making good any
default of Tenant, in making any Alterations to the Premises, in protecting and
preserving the Premises, and in reletting the Premises, and any and all expenses
which Landlord may incur during the occupancy of any new tenant, LESS (ii) the
net proceeds of any reletting of the Premises which has occurred at the time of
the aforesaid demand by Landlord to Tenant. Tenant agrees to pay to Landlord the
difference between items (i) and (ii) above for the period through and including
the date on which this Lease would have expired if it had not been terminated.
Landlord shall be entitled to any excess with no credit to Tenant. Landlord may,
in its sole discretion, make demand on Tenant as aforesaid on any one or more
occasions, and any suit brought by Landlord to enforce collection of such
difference for any one month shall not prejudice Landlord's right to enforce the
collection of any difference for any subsequent month or months. In addition to
the foregoing, and without regard to whether this Lease has been terminated,
Tenant shall pay to Landlord all costs incurred by Landlord, including
reasonable attorneys' fees, with respect to any lawsuit or action instituted or
taken by Landlord to enforce the provisions of this Lease. Tenant's liability
shall survive the institution of summary proceedings and the issuance of any
warrant hereunder.
(b) If Landlord determines that it is impracticable or
extremely difficult to fix the actual damages, then, as an alternative to the
remedy set forth in subparagraph (a), Tenant will pay to Landlord on demand,
liquidated and agreed final damages for Tenant's default calculated in
accordance with this paragraph. Liquidated damages hereunder shall be an amount
equal to the excess, if any, of (i) all Monthly Base Rent, Percentage Rent and
Additional Rent payable under this Lease from the date of such demand for what
would be the then unexpired term of this Lease in the absence of such
termination, over (ii) the then fair market rental value of the Premises, as
reasonably determined by Landlord. If any law shall limit the amount agreed
upon, Landlord shall be entitled to the maximum amount allowable under such law.
Nothing herein shall be construed to affect or prejudice Landlord's right to
prove, and claim in full, unpaid rent accrued prior to termination of this
Lease.
(c) Tenant's liability for Percentage Rent for each month
following any termination of the Lease or Tenant's right to possession of the
Premises through the unexpired Term hereof shall be computed by dividing (i) the
total of all amounts which Tenant was liable to pay to Landlord as Percentage
Rent hereunder from the Commencement Date until the date upon which this Lease
or Tenant's right to possession of the Premises was terminated (or the day
Tenant ceased conducting business from the Premises, if such date is earlier) by
(ii) the number of months in the Term prior to such date.
20.4 TENANT'S WAIVER. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including, but not limited to, all
creditors, does hereby specifically waive any and all rights and privileges
which Tenant and all such persons might otherwise have under any present or
future law (a) to redeem the Premises, or (b) to the benefit of any law which
exempts property from liability for debt or for distress for rent.
20.5 LANDLORD'S LIEN. Landlord shall have (in addition to all other
rights) a right of distress for rent and a lien on all Tenant Work and the
Tenant's Personal Property as security for all Monthly Base Rent, Percentage
Rent and Additional Rent payable under this
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Lease. In order to perfect and enforce said lien, Landlord may, at any time
after default by Tenant in the payment of Rent or default of other obligations
to be performed or complied with by Tenant under this Lease, seize and take
possession of any and all of the Tenant Work and the Tenant's Personal Property.
If Tenant fails to redeem the property so seized, by payment of whatever sum may
be due Landlord under and by virtue of the provisions of this Lease, then and in
that event, Landlord shall have the right, after twenty (20) days written notice
to Tenant of its intention to do so, to sell Tenant's property so seized at
public or private sale and upon such terms and conditions as to Landlord may
appear advantageous, and after the payment of all proper charges incident to
such sale, apply the proceeds thereof to the payment of any balance due to
Landlord on account of Rent or other obligations of Tenant pursuant to this
Lease. In the event there shall then remain in the hands of Landlord any balance
realized from the sale of Tenant's property as aforesaid, the same shall be paid
over to Tenant. The exercise of the foregoing remedy by Landlord shall not
relieve or discharge Tenant from any deficiency owed to Landlord which Landlord
has the right to enforce pursuant to any other provision of this Lease. Upon
Tenant's written request, Landlord agrees to subordinate its Landlord's lien to
(i) any purchase money loan provided to purchase specific items of equipment or
furniture, (ii) the lien securing a working capital loan or similar line of
credit in favor of any bona-fide third-party lender, as long as such purchase
money or other lender enters into a landlord's subordination agreement
reasonably acceptable to Landlord (which agreement shall, in all events, require
the secured party to provide reasonable advance written notice to Landlord of
its intent to remove any of Tenant's property from the Premises and require the
secured party to promptly repair all damage to the Premises occasioned by the
removal of Tenant's property) and (iii) any lessor of specific equipment leased
to Tenant.
20.6 REMEDIES CUMULATIVE. Pursuit of any of the foregoing remedies
shall not preclude Landlord from pursuing any other remedies herein or at law or
in equity provided, nor shall pursuit of any remedy by Landlord constitute a
forfeiture or waiver of any Monthly Base Rent or Additional Rent due hereunder
or of any damages accruing to Landlord by reason of Tenant's violation of any
provisions of this Lease.
20.7 LANDLORD'S DEFAULT. Tenant agrees to provide written notice to
Landlord and any lender having a lien on the Building or Land (provided such
lender so requests of Tenant in writing) in the event Landlord breaches any of
its obligations hereunder. In the event Landlord (or Landlord's lender) shall
fail to cure any such breach within thirty (30) days after receipt of written
notice from Tenant (or if such breach is not reasonably capable of being cured
within thirty (30) days, such additional period as may reasonably be necessary
to cure the same with due diligence), THEN Landlord shall be in default
hereunder, and Tenant shall be entitled to bring an action for damages or
injunctive relief against Landlord.
21. UTILITIES. Tenant shall procure, at its own cost and expense, all gas,
electricity, heat, telephone, cable television and other utility services it may
desire directly from the local utility provider. Tenant shall procure separate
metering for its electric and other utility usage. Tenant acknowledges that
Landlord shall have no obligation to furnish any utilities or services to Tenant
whatsoever. In no event shall Landlord have any obligation to Tenant should any
of such services be suspended reduced, eliminated or curtail and in no event
shall the Rent payable by Tenant hereunder be reduced, deferred or otherwise
affected on account thereof.
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22. TENANT'S INSURANCE.
22.1 LIABILITY INSURANCE. Tenant, at Tenant's expense, shall carry
and keep in full force and effect at all times during the Term of this Lease for
the protection of Landlord and Tenant, public liability insurance and liquor
liability insurance, each with limits of at least Five Million Dollars and
No/100 ($5,000,000.00) in the aggregate and Two Million Dollars ($2,000,000.00)
for each occurrence.
22.2 TENANT'S CASUALTY AND PROPERTY INSURANCE. Tenant, at Tenant's
expense, shall further carry a fire and extended "all risk" insurance policy
including extended coverage endorsement for the risks of water escape and
leakage from fire protective devices covering the entire Building and the
Premises and all of Tenant's Personal Property, in each case for not less than
the full replacement cost thereof. Tenant shall procure (i) fire and extended
coverage and casualty insurance covering the entire Building and the Premises,
all structural elements thereof and all systems therein (including portions
thereof installed as a part of the Tenant Work) for the full replacement costs
thereof, (ii) liability insurance, (iii) umbrella insurance, (iv) flood
insurance, and (v) such other insurance policies which Landlord determines are
necessary to afford all appropriate coverage for the Premises, all in amounts,
with deductibles and with companies reasonably acceptable to Landlord. Subject
to the requirements of any financing secured by the Land and/or the Building,
all proceeds of such insurance shall be used to repair or replace the building
and items so insured, unless this Lease is terminated pursuant to the provisions
of Paragraph 18 hereof. In the event Landlord's lender does not permit
disbursement of such insurance proceeds for repair, replacement or restoration,
neither Landlord nor Tenant shall have any obligation to rebuild, repair or
replace, except as otherwise expressly set forth in this Lease. All personal
property in the Premises, shall remain at Tenant's sole risk and Landlord shall
not assume any liability or be liable for any damage to or loss of such personal
property, arising from the bursting, overflowing or leaking of the roof or of
water, sewer or steam pipes, or from heating or plumbing fixtures or from the
handling of electric wires or fixtures or from any other cause whatsoever.
22.3 POLICY REQUIREMENTS. The public liability and property damage
insurance policies and any other insurance policies carried by Tenant with
respect to the Premises shall (i) be issued in form reasonably acceptable to
Landlord and Landlord's lender by good and solvent insurance companies qualified
to do business in the jurisdiction in which the Building is located and
reasonably approved by Landlord; (ii) designate as additional insureds Landlord,
Tenant and mortgagees, as their interests may appear, with respect to the Land
or the Building, and any other parties in interest from time to time reasonably
designated in writing by notice from Landlord to Tenant; (iii) be written as
primary policy coverage and not contributing to or in excess of any coverage
which Landlord may carry; (iv) provide for thirty (30) days' prior written
notice to Landlord of any cancellation or other expiration of such policy or any
defaults thereunder; and (v) contain an express waiver of any right of
subrogation by the insurance company against Landlord and mortgagees with
respect to the Land or the Building, and the employees and agents of each of the
foregoing, as to property damage. Neither the issuance of any insurance policy
required hereunder nor the minimum limits specified herein with respect to
Tenant's insurance coverage shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease. On or before the
Commencement Date and, thereafter, not less than thirty (30) days before the
expiration of the insurance policy in question, Tenant shall
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deliver to Landlord a certificate of insurance issued by the insurer, as to each
policy of insurance required to be maintained by Tenant under this Lease.
22.4 ADDITIONAL INSURANCE. Tenant shall replace any damaged glass
with glass of like kind and quality at Tenant's expense within seventy-two (72)
hours after the damage occurs from any cause whatsoever. Failure to replace any
damaged glass as herein provided shall constitute a default under this Lease.
22.5 EFFECT OF TENANT'S ACTIVITIES ON INSURANCE. Tenant shall not
conduct or permit to be conducted any activity, or place any equipment in or
about the Land or the Building which will increase the rate of, or make void or
voidable, any fire or other insurance maintained by Landlord or any mortgagee on
the Building, the Land or the property kept thereon or therein, which will
conflict with the provisions of any such insurance policy or which will make it
impracticable for Landlord to obtain insurance covering any risks against which
Landlord reasonably deems it advisable to obtain insurance. In the event any
increases in the rates of such insurance are, in Landlord's reasonable judgment,
due to Tenant's presence in the Premises, to any activity conducted or property
installed or placed by Tenant on or about the Premises or to Alterations
installed by Tenant or at Tenant's request, Tenant shall reimburse Landlord for
the amount of such increases promptly upon demand therefor. Statements by the
applicable insurance company or insurance rating bureau that such increases are
due to any activity, property or improvements shall be conclusive for the
purposes of determining Tenant's liability hereunder.
23. TENANT'S INSURANCE. Tenant's insurance under Section 22 is the primary
coverage for the Land, the Building and the Premises, and is not in addition to
(or to be affected by) any insurance which Landlord may elect to carry for its
own benefit.
24. WAIVER OF SUBROGATION. In any case in which Tenant shall be obligated
to pay to Landlord any loss, cost, damage, liability or expense suffered or
incurred by Landlord, Landlord shall allow to Tenant as an offset against the
amount thereof the net proceeds of any insurance collected by Landlord for or on
account of such loss, cost, damage, liability or expense, or the net proceeds
which would have been collected if Landlord had procured the insurance required
of it hereunder, whether or not actually procured by Landlord. In any case in
which Landlord shall be obligated to pay to Tenant any loss, cost, damage,
liability or expense suffered or incurred by Tenant, Tenant shall allow to
Landlord as an offset against the amount thereof the net proceeds of any
insurance collected by Tenant for or on account of such loss, cost, damage,
liability or expense or the maximum amount which would have been collectible had
Tenant procured the insurance policies required of it pursuant to this Lease,
whether or not actually procured by Tenant. Landlord and Tenant agree that each
insurance policy described above, or otherwise covering the Premises or any part
thereof, or personal property, fixtures and equipment located thereon and
therein, shall contain a clause or endorsement pursuant to which the insurance
companies waive subrogation and consent to a waiver of right of recovery.
Landlord and Tenant further agree that each will not make any claim against or
seek to recover from the other for any loss, cost, damage, liability, expense or
peril covered by such insurance.
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25. ASSIGNMENT AND SUBLETTING.
25.1 GENERAL PROVISIONS.
(a) Tenant shall not, directly or indirectly, voluntarily or
involuntarily (i) assign, mortgage, pledge, encumber or otherwise transfer this
Lease or any of its rights hereunder, (ii) sublet the Premises or any part
thereof, or permit the use of the Premises or any part thereof by any persons
other than Tenant or its employees, agents and invitees, (iii) permit the
assignment or other transfer of this Lease or any of Tenant's rights hereunder
by operation of law or otherwise, or (iv) change the restaurant concept in the
Premises from the S & W Concept, in each case without the prior written consent
of Landlord, which consent, subject to the other provisions of this Paragraph
25, shall not be unreasonably withheld, conditioned or delayed. Tenant shall
reimburse Landlord for its reasonable attorney's fees incurred in reviewing any
requested consent, whether or not consent is ultimately given.
(b) The consent by Landlord to any change in restaurant
concept or to assignment, subletting or transfer to any person is not to be
construed as a waiver or release of Tenant from any provision of this Lease nor
as a waiver of the necessity for such consent in a subsequent instance. In the
event of any change in restaurant concept at the Premises or assignment,
subletting or other transfer, Tenant shall remain fully liable as a principal
and not as a guarantor or surety under this Lease. Neither an assignment,
subletting or other transfer or change in restaurant concept at the Premises nor
the collection of rent by Landlord from any person other than Tenant, nor the
application of any such rent as provided in this Paragraph, shall be deemed a
waiver of any of the provisions of this Paragraph or release Tenant from its
obligation to comply with the provisions of this Lease, and Tenant shall remain
fully and primarily liable for all of Tenant's obligations under this Lease. If
this Lease is assigned, whether or not in violation of the provisions of this
Lease, Landlord may collect rent from the assignee. If the Premises or any part
thereof is sublet, Landlord may, upon an Event of Default by Tenant hereunder,
collect rent from the subtenant. In either event, Landlord may apply the amount
collected from the assignee or subtenant to Tenant's monetary obligations
hereunder. For purposes of this paragraph, a transfer or transfers of fifty
percent (50%) or more in interest of Tenant (whether interests in a limited
liability company, stock, partnership interest or other form of ownership or
control) by any person or persons having an interest in ownership or control of
Tenant, or the merger of Tenant into another organization after which merger
Tenant shall not be the surviving entity, shall be deemed an assignment of this
Lease for which the Landlord's consent must be obtained. The initial public
offering of Tenant's stock or the transfers of publicly traded shares of stock
in Tenant made in the ordinary course, and not as a part of any takeover
attempt, merger, consolidation, capital or similar transaction or other
transaction intended to effect a change in the operating control of Tenant,
shall not constitute a prohibited assignment or transfer for purposes of this
Paragraph 25. Any lawful levy or sale or execution or other legal process shall
be classified as an assignment within the meaning of this Lease, as shall be an
adjudication in bankruptcy, voluntary or involuntary, or an appointment of a
receiver by a state or Federal Court, or insolvency of Tenant, or the execution
of a deed or other instrument for the benefit of creditors. Any assignment,
subletting, transfer or change in restaurant concept at the Premises without
Landlord's prior written consent shall, at Landlord's option, be void and shall
constitute an Event of Default under this Lease entitling Landlord to terminate
this Lease and to exercise all other remedies available to Landlord under this
Lease or at law or in equity.
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(c) Notwithstanding the provisions of subsection (a) of this
Paragraph, Landlord shall not unreasonably withhold, delay, or condition its
consent to a proposed assignment or subletting of the Premises or change in
restaurant concept at the Premises by Tenant provided all of the following
conditions, are satisfied in Landlord's reasonable discretion (the "Transfer
Conditions"):
(i) No Event of Default exists under this Lease and no
event exists which may become an Event of Default with the giving of notice or
the passage of time or both;
(ii) Landlord receives at least thirty (30) days' prior
written notice of Tenant's intention to assign, sublet, or transfer or change in
the restaurant concept at the Premises;
(iii) The proposed assignee or subtenant provides
Landlord with satisfactory and realistic annualized sales projections indicating
Gross Receipts at least equal to the highest annual Gross Receipts generated by
Tenant during the preceding three (3) Lease Years of the Term or, in the case of
a change in the restaurant concept at the Premises, the reasonably estimated
annual sales projections of Gross Receipts expected to be generated by Tenant
using the new restaurant concept at the Premises;
(iv) The proposed assignee or subtenant is experienced
in, and has a track record of, successful operation of "white table cloth"
restaurants (as such term is commonly understood in the District of Columbia
restaurant trade) similar to Tenant's business in the Premises (but not
necessarily limited to the same cuisine as the initial tenant), has a good
reputation in the restaurant industry, will maintain the same level of service
and usage, and is not an entity to which Landlord or an affiliate of Landlord
has made a prior decision not to lease space in its buildings or with which
Landlord has had adverse dealings;
(v) The proposed use of the Premises complies with the
provisions of Paragraph 11.1 and have a decor and physical layout that is
consistent with the aesthetics and first-class quality of the then-existing
Premises;
(vi) The proposed assignee or subtenant is not a party
by whom any suit or action could be defended on the grounds of sovereign or
diplomatic immunity;
(vii) The proposed subtenant or assignee has sufficient
financial strength to satisfy all of its rental and other obligations under this
Lease;
(viii) Tenant or the proposed assignee or subtenant
submits to Landlord sufficient information upon which Landlord can reasonably
base an informed judgment on the above criteria, including, in addition to such
other information as Landlord shall require, the name, business experience,
financial position (including, without limitation, its most recent audited
financial statements), and business references (including any landlords in other
locations) of the proposed subtenant or assignee, a description of the proposed
transaction which shall include any and all documents relating thereto, the
consideration to be delivered to Tenant for the assignment or sublease, and the
identity of any partners, members, or principals of subtenant or assignee who
may be involved in such a transaction, regardless of whether it is the intention
of
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such parties to actively participate in the operation of the Premises, the
identity of any broker entitled to a commission in respect of such subletting or
assignment and the commission, if any, payable to such broker, and any other
information reasonably requested by Landlord; and
(ix) Tenant shall deliver a copy of any proposed
assignment or sublease with the notice referred to in subparagraph (ii) above
for approval by Landlord provided that: (a) any such assignment shall include an
assumption by the assignee, from and after the effective date of such
assignment, of the performance and observance of the covenants, conditions and
obligations to be performed and observed on the part of Tenant contained in this
Lease; (b) any such sublease shall specify that such sublease shall not be
further assigned nor the Premises further sublet except in strict accordance
with the provisions of this Lease and shall specify that the term of such
sublease shall not extend beyond one day prior to the expiration of this Lease;
and (c) any such sublease or assignment shall provide that Landlord shall be
entitled, in its sole discretion, to treat said agreement as void in the event
such sublessee or assignee has not obtained its liquor license(s) from the
governmental authorities responsible for liquor licenses within four (4) months
after such conditional transfer, notwithstanding Landlord shall have previously
granted its consent thereto; and
(x) Neither the proposed subtenant or assignee (as then
constituted), nor any "Affiliate") (as hereinafter defined) of such party has a
history of late payments, defaults, bankruptcies, court cases or other property
management problems (excluding problems attributable to any predecessor of such
assignee or subtenant that does not then control or have an ownership interest
in such party); and
(xi) The Guarantor signs and delivers to Landlord an
agreement in form and substance satisfactory to Landlord wherein such Guarantor
consents to the assignment, subletting or transfer or change in restaurant
concept at the Premises and reaffirms its obligations under the Guaranty. For
purposes hereof, an "Affiliate" shall mean an entity owned or controlled by, or
under common control with, whether directly or indirectly, the proposed assignee
or subtenant, or an entity in which the proposed assignee or subtenant controls
or has direct or indirect ownership interest. Landlord shall respond to any
consent for approval to any proposed assignment or subletting or change in
restaurant concept at the Premises within sixty (60) days following any request
therefor, accompanied by such additional information pertaining to the proposed
assignee or subtenant or the change in restaurant concept at the Premises as
Landlord may reasonably request. Notwithstanding any assignment, subletting or
transfer or change in restaurant concept at the Premises pursuant to this
paragraph, Tenant shall remain fully and primarily liable for the payment and
performance of, and compliance with, all of its obligations under this Lease
(including, without limitation, compliance with the prohibition set forth in
Paragraph 6.5.2 [last sentence]).
(d) Documentation. No permitted assignment or subletting by
Tenant shall be effective until there has been delivered to Landlord a fully
executed counterpart of the assignment or sublease which expressly provides that
(i) the assignee or subtenant may not further assign or sublet the assigned or
sublet space without Landlord's prior written consent (which, in the case of a
further assignment proposed by an assignee, shall not be unreasonably withheld,
subject to Landlord's rights under the provisions of this Paragraph), (ii) the
assignee or
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subtenant will comply with all of the provisions of this Lease pertaining to
such sublet space, and Landlord may enforce the Lease provisions directly
against such assignee or subtenant, (iii) in the case of an assignment, the
assignee assumes all of Tenant's obligations under this Lease arising on or
after the date of the assignment, and (iv) in the case of a sublease, the
subtenant agrees to be and remain jointly and severally liable with Tenant for
the payment of rent pertaining to the sublet space in the amount set forth in
the sublease, and for the performance of all of the terms and provisions of this
Lease applicable to such sublet space. In addition to the foregoing, no sublease
by Tenant shall be effective until there has been delivered to Landlord a fully
executed counterpart of Landlord's consent to sublease form. The failure or
refusal of a subtenant or assignee to execute any such instrument shall not
release or discharge the subtenant or assignee from its liability as set forth
above. Notwithstanding the foregoing, however, no subtenant or assignee shall be
permitted to occupy the Premises unless and until such subtenant or assignee
provides Landlord with certificates evidencing that such subtenant or assignee
is carrying all insurance coverage required of such subtenant or assignee under
this Lease.
26. SIGNS. Tenant shall have the right to install exterior and interior
signage of such size and color, design and location as may reasonably be
designated and approved by Landlord in writing. Such signage shall be installed
and at all times thereafter maintained in good condition and repair and shall be
in conformance with all governmental codes having jurisdiction thereof and
Landlord's reasonable requirements for the preparation of Tenant's signage. In
all events, Tenant's signs shall be subject to approval by the District of
Columbia. Tenant shall make all repairs required by reason of the installation,
maintenance and removal of its signage. Tenant shall be responsible for the
day-to-day maintenance, repair and replacement of all of its signs. Damage to
the signs by fire or other casualty shall be Tenant's responsibility to repair
or replace. At the expiration of Tenant's occupancy of the Premises, Tenant
shall be responsible for removing all signs and repairing any damage to the
Building occasioned thereby.
27. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations set forth in Exhibit C attached hereto and with any reasonable
additions thereto and modifications thereof adopted from time to time by
Landlord, and each such rule or regulation shall be deemed to be a covenant of
this Lease to be performed and observed by Tenant.
28. LANDLORD ACCESS. Landlord may enter the Premises at any time in case
of any emergency and at reasonable hours and upon reasonable notice to exhibit
the same to prospective purchasers, mortgagees or tenants, to inspect the
Premises to see that Tenant is complying with all its obligations hereunder, to
make repairs required of Landlord under the terms hereof or to make repairs to
any adjoining property of Landlord or any entity affiliated with Landlord.
Notwithstanding the foregoing, Landlord shall show the Premises to prospective
tenants only during the last twelve (12) months of the Term.
29. SUBORDINATION. This Lease is subject and subordinate to the lien of
any and all mortgages (which term "mortgages" shall include deeds of trust and
similar security instruments) and ground or other underlying leases which may
now or hereafter encumber or otherwise affect the Land, the Building, or both,
as well as the obligation to pay any and all renewals, extensions,
modifications, recastings or refinancing thereof; provided, however, that in the
event the mortgagee under any such mortgage, or ground lessor under any such
ground lease, shall require this Lease to be superior and paramount to such
mortgage or ground lease, Tenant agrees to
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execute and deliver any documents required for such purpose within five (5) days
after delivery of such documents to Tenant. This paragraph shall be
self-operative and no further instruments of subordination need be required by
any mortgagee, trustee or Ground Lessor. Nevertheless, if requested by Landlord,
Tenant shall promptly execute any certificate or other document specified by
Landlord in confirmation of this subordination. Tenant hereby constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute any such certificate
or document on behalf of Tenant if Tenant does not execute it within five (5)
days after receiving it. Tenant agrees that, if any proceedings are brought for
the foreclosure of any such mortgage, Tenant, if requested to do so by the
purchaser at the foreclosure sale, shall attorn to the purchaser, shall
recognize the purchaser as Landlord under this Lease, and shall make all
payments required hereunder to such new Landlord without deduction or setoff.
Tenant waives the provisions of any law or regulation, now or hereafter in
effect, which may give or purport to give Tenant any right to terminate or
otherwise adversely affect this Lease or the obligations of Tenant hereunder in
the event that any such foreclosure or termination or other proceeding is
prosecuted or completed. Anything contained herein to the contrary
notwithstanding, (i) Landlord shall procure for Tenant a subordination,
attornment and non-disturbance agreement signed by Landlord's current mortgagee
in such lender's usual and customary form within sixty (60) days of the
Commencement Date and (ii) Landlord shall endeavor in good faith to procure a
commercially reasonable non-disturbance agreement for Tenant from any future
mortgagee.
30. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS.
30.1 ESTOPPEL CERTIFICATE. Tenant shall, without charge, at any time
and from time to time, within ten (10) business days after the request by
Landlord, any ground lessor, the holder of any indebtedness secured by the Land,
the Building or both, or any prospective purchaser of the Land, the Building or
both, or to any other person or entity designated by Landlord, execute,
acknowledge and deliver to such requesting party a written estoppel certificate
certifying, as of the date of such certificate: (a) that this Lease is
unmodified and in full force and effect (or if there has been a modification,
that the Lease is in full force and effect as modified and setting forth such
modifications); (b) the amounts of Monthly Base Rent, Percentage Rent and
Additional Rent currently due and payable by Tenant; (c) that Tenant has
accepted possession of the Premises; (d) to the best of Tenant's knowledge,
whether or not there are then existing any setoffs, charges, liens, claims or
defenses against the enforcement of any right hereunder (and, if so, specifying
the same in detail); (e) that Tenant has no knowledge of any then uncured
defaults by Landlord of its obligations under this Lease; (f) that Tenant is not
in default; and (g) to the best of Tenant's knowledge, any other factual
certifications requested. Any statement delivered pursuant to this paragraph may
be relied on by the requesting party. Tenant's failure to timely deliver the
estoppel certificate after request by Landlord immediately shall be deemed an
Event of Default without cure under this Lease.
30.2 FINANCIAL STATEMENTS. Tenant covenants and agrees that at any
time, within thirty (30) days after notice and demand by Landlord, Tenant will
furnish (and, in the case of Guarantor, caused to be furnished) to Landlord
certified financial statements or annual reports of Tenant and Guarantor as of
the end of Tenant's and Guarantor's last calendar year and Tenant consents to
the delivery of same by Landlord to lenders or prospective lenders or purchasers
of all or part of the Building, the Land or both or of any interest therein.
Such financial statements shall (i) be prepared in accordance with generally
accepted accounting principles consistently
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applied, (ii) provide reasonably detailed income and expense statements and net
worth determinations of Tenant, and (iii) be certified as true and correct by an
authorized officer of (a) Tenant or Tenant's regular certified public accounting
firm and (b) Guarantor or Guarantor's regular certified public accounting firm.
31. HOLD-OVER. If Tenant fails to surrender the Premises on the day after
the expiration or termination of the Term, then Tenant shall, at Landlord's
election, become a Tenant at sufferance at a monthly rental equal to twice the
Monthly Base Rent for the last month of the Term. Tenant, as a tenant at
sufferance, shall be subject to all of the conditions and covenants of this
Lease (including payment of Percentage Rent and Additional Rent) as though the
tenancy had originally been a monthly tenancy. During any holdover period, each
party shall give to the other at least thirty (30) days' prior written notice to
quit the Premises, except in the event of a nonpayment of Monthly Base Rent,
Percentage Rent or of Additional Rent when due, or of the breach of any other
covenant by the Tenant, in either of which events Tenant shall not be entitled
to any notice to quit, the usual thirty (30) day's notice to quit being
expressly waived. The foregoing notwithstanding, in the event Tenant shall hold
over after expiration of the Term, Landlord, at its election or option (and in
lieu of accepting such holdover thereof), may re-enter and take possession of
the Premises forthwith, without process, or by any legal action or process in
force in the jurisdiction in which the Building is located. Further, in the
event of any such holdover to which Landlord objects, Tenant shall be liable to
Landlord and any other tenants with an interest in the Premises for any and all
damages incurred as a result of such holdover, and shall in addition pay to
Landlord the reasonable value of its use of the Premises, which is hereby agreed
to be two hundred percent (200%) the Rent under this Lease during the last month
of the Term.
32. QUIET ENJOYMENT. Landlord covenants that it has the right to make this
Lease and that, if Tenant pays all of the Monthly Base Rent, Percentage Rent and
the Additional Rent, performs all of its obligations provided for hereunder and
observes all of the other provisions hereof on a timely basis, Tenant shall have
the right, during the Term and subject to the provisions of this Lease, to
quietly occupy and enjoy the Premises without hindrance by Landlord or its
successors and assigns, or anyone claiming by, through or under Landlord.
33. PROHIBITED MATERIALS AND PROPERTY. Tenant shall not bring or permit to
be brought or kept in or on the Premises or elsewhere in the Building any
governmentally regulated quantities of inflammable, combustible, or explosive
fluid, material, chemical or substances (except for standard office or
restaurant supplies stored in proper containers). In addition to the foregoing,
Tenant shall keep the Premises free from governmentally regulated quantities of
pollutants, contaminants, toxic or hazardous waste, or any other substances, the
removal of which is required or the use or maintenance of which is restricted,
prohibited or penalized, by any Federal, state or local law, regulation or
ordinance relating to pollution or the protection of the environment
(collectively, "Hazardous Substances"), and if any Hazardous Substances are
brought or found upon the Premises Tenant shall cause the same to be immediately
removed, with proper disposal, and all required clean-up procedures shall be
diligently undertaken. If at any time during or after the Term hereof the
Premises is found to be contaminated or to contain any Hazardous Substances,
Tenant agrees to indemnify, defend and hold Landlord harmless from and against
any and all claims, actions, demands, liabilities, costs, expenses, damages and
obligations of any nature whatsoever, unless the presence of such substances is
attributable to
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Landlord or its agents or employees or existed prior to the date of this Lease.
The foregoing indemnification shall survive the termination or expiration of the
Lease. In the event that prior to completion of the Tenant Work Tenant discovers
that the Building or Land contains asbestos or any other Hazardous Substances,
Landlord shall be responsible for the cost of abating the same, provided that
Landlord shall have the right to terminate the Lease in the event the abatement
costs are expected to exceed Twenty Five Thousand and No/100 Dollars
($25,000.00), unless Tenant and its parent company agrees to assume liability
for such additional costs. Tenant agrees, at its sole cost and expense, to
conduct such environmental tests and studies as may be necessary to determine
whether or not the Building or Land contains any asbestos or other Hazardous
Materials promptly following the Effective Date, and to promptly furnish
Landlord with copies of all of such reports.
34. LANDLORD'S SUCCESSORS. Landlord (and any successor or affiliate of
Landlord) may freely sell, assign or otherwise transfer all or any portion of
its interest under this Lease or in the Building or the Land. In the event of
any such sale, assignment or other transfer, the party originally executing this
Lease as Landlord shall, and any successor or affiliate of such party shall
without further agreement between Landlord and Tenant (or between Landlord
and/or Tenant and the person who is the purchaser, assignee or other transferee
of Landlord), be relieved of any and all of its obligations under this Lease, in
which event Tenant shall thereafter be bound to such purchaser, assignee or
other transferee with the same effect as though the latter had been the original
Landlord hereunder.
35. ATTORNEYS' FEES. If Tenant shall at any time be in default under this
Lease, and Landlord shall deem it necessary to engage attorneys to enforce its
rights under this Lease, then Landlord, if it is the prevailing party in any
litigation with Tenant, shall be reimbursed for the actual attorneys' fees and
court costs incurred in connection with Tenant's default under this Lease and
such enforcement actions.
36. NOTICES. Any notice provided, required or permitted to be given by
either party to the other under this Lease must be in writing, and may be served
(i) by depositing the same in the United States mail, addressed to the party to
be notified, postage prepaid, and registered or certified, with return receipt
requested; (ii) by hand delivery with a receipt therefor; (iii) by nationally
recognized overnight delivery service, such as Federal Express, Purolator or
Xxxxx; or (iv) by telecopy or facsimile service. For purposes of notices, the
addresses of the parties shall be as follows:
If to Landlord:
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xx. Xxxxxxxx X. Xxxxxxx
Xx. Xxxxxxx Xxxxxx
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with copies to:
Xx. Xxxxxxx X. Xxxxxxx
The Forge Company
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
-and-
Xxxxx X. O'Conor, Esquire
Xxxxxx, Flyer & Xxxxx, P.C.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
If to Tenant:
c/o The New York Restaurant Group, Inc.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxx Xxxx, President
with a copies to:
Xxxxxx X. Xxxxxxxx, Esquire
Xxxxxxx & Xxxxxxxx
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
-and-
c/o The New York Restaurant Group, Inc.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxx Xxxxxx
Either party may, by written notice to the other, designate a new address to
which such notices shall be directed. All notices shall be effective upon
receipt or refusal to accept receipt. If any mortgagee shall notify Tenant that
it is the holder of a mortgage affecting the Premises or any part thereof, no
notice, request or demand thereafter sent by Tenant to Landlord shall be
effective until a copy of same shall be sent to such mortgagee in the manner
prescribed in this Section at such address as such mortgagee shall designate.
37. REMEDIES CUMULATIVE; NO WAIVER. All rights and remedies given herein
and/or by law or in equity to Landlord are separate, distinct and cumulative,
and none of them, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other. No failure of Landlord to exercise any power given
Landlord hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof. Receipt by Landlord of any Monthly Base Rent
or Additional Rent with knowledge of the breach of any provisions hereof shall
not constitute a
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waiver of such breach and no waiver by Landlord of any provision hereof shall be
deemed to have been made unless made in writing.
38. FINAL AGREEMENT; SEVERABILITY. This Lease, including all Exhibits
attached hereto, is intended by the parties as the final expression of their
agreement and as a complete and exclusive statement of the terms between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to determine the
meaning of any of the terms of this Lease. No representations, understandings or
agreements have been made or relied upon in the making of this Lease other than
those specifically set forth herein. This Lease can only be modified by a
writing signed by all of the parties hereto or their duly authorized agents. If
any term, covenant or condition of this Lease or the application thereof to any
person or circumstance shall be held invalid or unenforceable, the remainder of
this Lease or the application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and each term, covenant or condition of this Lease
shall be valid and enforced to the fullest extent permitted by law.
39. TIME IS OF THE ESSENCE. Time is of the essence of the obligations of
Tenant contained in this Lease, subject to applicable notice and cure periods.
40. INDEMNITY. Tenant agrees it will defend all actions against Landlord
(including any partners, employees or agents) and that it will indemnify and
save Landlord harmless from and against any and all liabilities, losses,
damages, causes of action, suits, claims, demands, judgments, costs and expenses
of any kind (including court costs and reasonable attorneys' fees) relating to
or arising from or in connection with: (i) the possession, use, occupancy,
management, repair, maintenance or control of the Premises or any portion
thereof; (ii) any act or omission of Tenant or Tenant's agents, sublessees,
contractors, employees or invitees; (iii) any default, violation or injury to
person or property or loss of life sustained in or about the Premises; (iv) any
violation or breach of this Lease by Tenant; or (v) any other matter arising
from Tenant's occupancy or use of the Premises or any act or omission of Tenant,
its agents, sublessees, contractors, employees or invitees. Landlord hereby
agrees to indemnify Tenant and hold Tenant harmless from and against any cost,
damage, liability or expense incurred by Tenant, except for consequential
damages, which (a) results from any willful misconduct or gross negligence of
Landlord or its agents within the Premises and is not covered by the insurance
required to carry by Tenant hereunder; or (b) arises on account of any Hazardous
Substances introduced by Landlord into the Building or otherwise existing as of
the date hereof.
41. EXCULPATION. Notwithstanding any provision to the contrary contained
herein, Tenant shall look solely to the estate and property of Landlord in and
to the Land and the Building in the event of any claim against Landlord arising
out of or in connection with this Lease, the relationship of Landlord and
Tenant, or Tenant's use of the Premises, and Tenant agrees that the liability of
Landlord arising out of or in connection with this Lease, the relationship of
Landlord and Tenant, or Tenant's use of the Premises, shall be limited to such
estate and property of Landlord in and to the Land and the Building. No
properties or assets of Landlord other than the estate and property of Landlord
in the Land and the Building and no property owned by any partner or owner of
Landlord shall be subject to levy, execution or other enforcement proceedings or
other judicial process for the satisfaction of any judgment or for the
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satisfaction of any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Premises.
42. NO LIABILITY. Landlord shall not be liable to Tenant, its employees,
agents, contractors, business invitees, licensees, customers, clients, family
members or guests for any damage, compensation or claim arising from (i) (any
accident or damage resulting from the use or operation (by Landlord, Tenant or
any other person or persons whatsoever) of elevators or heating,
air-conditioning, electrical, plumbing or other equipment, appliance or
apparatus, (ii) the termination of this Lease by reason of the destruction of
the Premises, (iii) any fire, explosion or other casualty, (iv) any robbery,
theft, mysterious disappearance or vandalism, (v) any dampness or leakage in any
portion of the Premises or Building from water, rain, snow, ice, drains, pipes
or plumbing, (vi) any falling plaster, tile or other building material, (vii)
any leakage, emanation or disturbance caused by steam, gas or electricity,
(viii) any latent defect in the Building, (ix) any personal injury arising from
the use, occupancy and condition of the Premises, or (x) any other cause
whatsoever; PROVIDED that if any of the foregoing is caused by the negligence of
Landlord or a willful act or failure to act on the part of Landlord, Landlord
shall be liable to Tenant for any actual damages suffered by Tenant as a direct
result of such gross negligence or willful misconduct, except to the extent the
risk of any such loss is allocated to Tenant's insurance pursuant to this
paragraph and Paragraph 22 above. In no event shall Landlord, or its agents or
employees, have any liability to Tenant for lost profits or any consequential
damages whatsoever, Tenant shall not be entitled to any abatement or diminution
of Rent as a result of any of the foregoing occurrences, nor shall the same
release Tenant from its obligations hereunder or constitute an eviction. It is
expressly understood and agreed that Tenant shall look to its insurance policies
and not to Landlord or its agents or employees for reimbursement for any damages
or losses incurred as a result of any of the foregoing occurrences, and that
said policies must contain waiver of subrogation clauses as herein provided.
43. NO PARTNERSHIP. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture between Landlord and Tenant
or create any other relationship between the parties hereto other than that of
Landlord and Tenant.
44. BROKERAGE. Landlord and Tenant each represents to the other that it
has not had dealings with any real estate broker, finder or other person, with
respect to this Lease in any manner other than Equis Corporation, whose
commissions shall be paid by Landlord pursuant to a separate agreement. Landlord
and Tenant each agree to indemnify and hold the other harmless from and against
any breach of the foregoing representation and all costs, expenses and
liabilities in connection therewith, including, without limitation, reasonable
attorneys' fees and expenses, arising out of any dealings Tenant had with any
broker, finder or other persons.
45. TENANT'S AUTHORITY. Tenant shall, concurrently with the signing of
this Lease, furnish to Landlord certified copies of the resolutions of its board
of directors authorizing Tenant to enter into this Lease. Moreover, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that (i) he or she is duly authorized to execute and deliver this
Lease, (ii) Tenant is a duly organized corporation under the laws of the State
of Delaware, is qualified to do business in the District of Columbia, is in good
standing under the laws of the State of Delaware and the laws of the District of
Columbia, and has the power and authority to
-32-
enter into this Lease, and (iii) all corporate action requisite to authorize
Tenant to enter into this Lease has been duly taken.
46. LANDLORD'S COURTESY ACCOUNT. Tenant shall provide Landlord (or its
designees) with a restaurant credit of Five Thousand Dollars ($5,000.00) for
each Lease Year or part thereof during the Term to be applied toward the
purchase of food and liquor.
47. GOVERNING LAW; CONSTRUCTION. The provisions of this Lease shall be
governed and construed according to the internal laws of the District of
Columbia (without regard to its law relating to choice or conflicts of law).
Should any provision of this Lease require judicial interpretation, it is agreed
that the court interpreting or considering same shall not apply the presumption
that the provisions hereof shall be more strictly construed against a party by
reason of the rule or conclusion that a document should be construed more
strictly against the party who itself or through its agent prepared the same, it
being agreed that all parties hereto have participated in the preparation of
this Lease and that each party consulted legal counsel before the execution of
this Lease.
48. BENEFIT AND BURDEN; NO RECORDING. Subject to the provisions of
Paragraphs 25 and 34 above, the provisions of this Lease shall be binding upon,
and shall inure to the benefit of, the parties hereto and each of their
respective representatives, successors and assigns. Neither this Lease nor any
memorandum or notice thereof shall be recorded by Tenant without the express,
prior written consent of Landlord, and any such recordation by Tenant in
violation of this paragraph shall be null and void and of no force or effect and
shall constitute an Event of Default.
49. NO FURTHER REPRESENTATIONS OR WARRANTIES. This Lease as written,
contains all the terms of the agreement entered into between the parties as of
the date hereof, and Tenant expressly acknowledges that Landlord has made no
representations or warranties whatsoever, and held out no inducements to lease,
other than those expressly set forth in this Lease. Without limiting the
generality of the foregoing, Tenant acknowledges that it has not relied on (and
Landlord has not made) any representations or warranties (express or implied)
other than as expressly set forth in this Lease as to (i) the current or future
Real Estate Tax liability, assessment or valuation of the Premises; (ii) the
potential qualification of the Premises for any and all benefits conferred by
Federal, state or municipal laws, whether for subsidies, special real estate tax
treatment, insurance, financing or refinancing or any other benefits, whether
similar or dissimilar to those enumerated; (iii) the compliance of the Premises
with applicable zoning ordinances and the ability to obtain a change in the
zoning or a variance in respect to the Premises from any source, including, but
not limited to, the District of Columbia or the Federal government or any
institutional lender; (v) the present and future condition and operating state
of any and all machinery or equipment or personal property (if any) on the
Premises and the present or future structural and physical condition of the
Building or its suitability for rehabilitation or renovation; (vi) the presence
or absence of any laws, ordinances, rules or regulations issued by any
governmental authority, agency or board and any violations thereof; and (vii)
the layout, leases, rents, income, expenses or operation relating to, the
Premises or any part thereof. Landlord is not liable or bound in any manner by
any verbal or written statements pertaining to the Premises or the operation,
layout, expenses, condition or income, furnished by any real estate broker,
agent, employee, or other person, unless the same are specifically set forth in
this Lease.
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50. WAIVER OF JURY TRIAL; TENANT'S AGENT; CONSENT TO JURISDICTION
50.1 WAIVER OF JURY TRIAL.
TO INDUCE THE OTHER PARTY TO ENTER INTO THE LEASE, LANDLORD AND
TENANT EACH WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY OR ALL ISSUES ARISING IN
ANY ACTION OR PROCEEDING BETWEEN LANDLORD AND TENANT OR THEIR SUCCESSORS OR
ASSIGNS, UNDER OR CONNECTED WITH THIS LEASE OR ANY OF ITS PROVISIONS. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY LANDLORD AND TENANT,
AND LANDLORD AND TENANT EACH ACKNOWLEDGES THAT NEITHER LANDLORD OR TENANT NOR
ANY PERSON ACTING ON BEHALF OF LANDLORD OR TENANT HAS MADE ANY REPRESENTATIONS
OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR
NULLIFY ITS EFFECT. LANDLORD AND TENANT EACH FURTHER ACKNOWLEDGES THAT IT HAS
BEEN REPRESENTED IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. LANDLORD AND TENANT EACH
FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION.
50.2 CONSENT TO JURISDICTION. LANDLORD AND TENANT EACH CONSENTS TO
AND SUBMITS TO IN PERSONAM JURISDICTION AND VENUE IN THE DISTRICT OF COLUMBIA,
AND IN THE FEDERAL DISTRICT COURTS WHICH ARE LOCATED IN THE DISTRICT OF
COLUMBIA. LANDLORD AND TENANT EACH ASSERTS THAT IT HAS PURPOSEFULLY AVAILED
ITSELF OF THE BENEFITS OF THE LAWS OF THE DISTRICT OF COLUMBIA AND WAIVES ANY
OBJECTION TO IN PERSONAM JURISDICTION ON THE GROUNDS OF MINIMUM CONTACTS, WAIVES
ANY OBJECTION TO VENUE, AND WAIVES ANY PLEA OF FORUM NON CONVENIENS, THIS
CONSENT TO AND SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED
TO THIS LEASE. REGARDLESS OF WHETHER LANDLORD OR TENANT'S ACTIONS TOOK PLACE IN
THE DISTRICT OF COLUMBIA OR ELSEWHERE IN THE UNITED STATES, THIS SUBMISSION TO
JURISDICTION IS NONEXCLUSIVE, AND DOES NOT PRECLUDE THE OTHER PARTY FROM
OBTAINING JURISDICTION OVER TENANT OR LANDLORD IN ANY COURT OTHERWISE HAVING
JURISDICTION.
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EXHIBIT A
Legal Description of Land
EXHIBIT A
Metes & Bounds Description - Xxx 000, Xxxxxx 000
Part of Original Lot 28 and all of Original Lot 29, per plat recorded in
Book 4, page 1151 (said Lot 29 also being Lots 45, 46 and 47, per plat recorded
in Book 11, page 62), and part of Alley Closed, per plat recorded in Book 146,
page 86; all in Square 117 and all as found among the records of the Office of
the Surveyor for the District of Columbia, more particularly described, in one
piece, as follows:
Beginning at the southeast corner of said Original Lot 29, said beginning
being a point on the west line of 19th Street, 110 feet wide, removed North,
126.0 feet from the intersection of said west line of 00xx Xxxxxx and the north
line of L Street, 90 feet wide, and leaving said beginning and running with the
south line of said Original Lot 29, West, 91.92 feet; thence leaving said south
line of Original Lot 29 and running with the the east line of said Alley Closed,
South, 14.50 feet; thence leaving said east line of Alley Closed and running
through said Alley Closed, West, 48.91 feet, to the west line of said Alley
Closed; thence with said west line of Alley Closed and the west lines of said
Original Lots 29 and 28, North, 84.50 feet; thence through said Original Xxx 00,
Xxxx, 000.00 feet, to the west line of 19th Street, aforesaid; thence with said
west line of 19th Street, South, 70.0 feet, to the place of beginning,
containing 10,566 square feet, per the records of the Assessment and Taxation
Division of the D.C. Department of Finance and Revenue.
EXHIBIT B
Declaration by Landlord and Tenant
Attached to and made part of the Agreement of Lease entered into by and
between (i) 0000 Xxxxxxxxxx Xxxxxx Associates, a District of Columbia joint
venture ("Landlord"), and (ii) S & W D.C., L.L.C., a Delaware limited liability
company ("Tenant").
Landlord and Tenant do hereby declare that:
1. The execution date of the Agreement of Lease is _______________, 1998.
2. The Commencement Date of the Agreement of Lease is _______________.
3. The Lease Expiration Date of the Agreement of Lease is _______________,
subject to any extension of the Term Pursuant to Paragraph 3.2 or the earlier
termination of the Agreement of Lease.
4. The Lease is in full force and effect as of the date hereof, Landlord
has fulfilled all of its obligations under the Lease required to be fulfilled by
Landlord on or prior to such date, and Tenant has no right of set-off, deduction
or counterclaim against any rentals.
LANDLORD:
0000 Xxxxxxxxxx Xxxxxx Associates,
WITNESS a District of Columbia Joint Venture
____________________________ By:_____________________________________
Xxxxxxxx X. Xxxxxxx, Partner
WITNESS:
____________________________ By:_____________________________________
Xxxxxxx Xxxxxx, Partner
TENANT:
S & W D.C.,, L.L.C.
ATTEST: a Delaware limited liability company
____________________________ By:_____________________________________
Secretary Name:________________________________
Title:_______________________________
[Corporate Seal]
B-2
EXHIBIT C
Rules and Regulations
1. No awnings or other projections shall be attached to the outside walls
of the Building except as permitted under the Tenant's lease. No drapes, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the Premises, except as may be approved by Landlord in its
reasonable discretion.
2. No sign, advertisement, notice or other lettering or material(s) shall
be exhibited, inscribed, painted or affixed by Tenant on any part of the outside
or inside of the Building without the written consent of Landlord, which shall
not be unreasonably withheld. In the event of the violation of the foregoing,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to Tenant.
3. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown or placed therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant.
4. Tenant shall not construct, maintain, use or operate within its
Premises or elsewhere within or on the outside of the Building, any electrical
device, wiring or apparatus in connection with a loud speaker system or other
sound system if the music system can be heard outside of the Premises. Tenant
shall not make or permit to be made any disturbing noises or disturb or
interfere with the occupants of neighboring Buildings or premises or those
having business with them, whether by the use of any musical instrument, radio,
tape recorder, whistling, singing or any other way. Tenant shall not throw
anything out of the doors or windows, off the balconies or down the corridors or
stairs.
5. No bicycles, vehicles or animals, birds or pets of any kind shall be
brought into or kept in or about the Premises.
6. No flammable, combustible, explosive, hazardous or toxic fluid,
chemical or substance shall be brought into or kept upon the Premises, other
than normal cleaning fluids in less than regulated amounts stored in lawful
containers and maintained and disposed of in compliance with all applicable
environmental laws.
7. Upon the expiration or termination of the Lease, Tenant shall return to
Landlord all keys used in connection with the Premises, including any keys to
the Premises, to rooms and offices within the Premises, to storage rooms and
closets, to cabinets and other built-in furniture, and to toilet rooms whether
or not such keys were furnished by Landlord or procured by Tenant, and in the
event of the loss of any such keys, Tenant shall pay to Landlord the cost of
replacing the locks. On the expiration or termination of the Lease, Tenant shall
disclose to Landlord the combination of all locks for safes, safe cabinets and
vault doors, if any, remaining in the Premises.
8. Tenant shall not install or permit or allow the installation of a
television antenna, satellite dish or other roof device in the windows or upon
the exterior of the Building without the prior written consent of Landlord,
which shall not be unreasonably withheld.
C-2
EXHIBIT D
Work Agreement
THIS WORK AGREEMENT (the "Work Agreement") is attached to and made a part
of the Agreement of Lease dated as of July 8, 1998 (the "Lease") by and between
(i) 0000 Xxxxxxxxxx Xxxxxx Associates, a District of Columbia joint venture
("Landlord"), and (ii) S & W D.C., L.L.C., a Delaware limited liability company
("Tenant"). Capitalized terms not defined in this Work Agreement have the same
meaning ascribed to them in the Lease.
1. TENANT WORK; General Provisions. The parties hereto acknowledge that
Tenant intends and shall be obligated to construct, at its sole cost and
expense, certain improvements in and upon the Premises (such improvements being
referred to herein as "Tenant Work") in accordance with the provisions hereof.
It is specifically understood that Landlord shall have no design, permitting,
construction or other obligations of any kind or nature whatsoever (whether with
regard to the Land, the Building or the Building's mechanical, electrical,
plumbing or life/safety systems) in connection with the performance of any
Tenant Work.
2. PLANS AND SPECIFICATIONS. Landlord and Tenant shall use reasonable
efforts to agree upon complete architectural drawings, construction plans and
specifications for the Tenant Work (hereinafter referred to as the "Plans and
Specifications"). Tenant shall furnish Landlord with preliminary plans and
specifications for the Tenant Work by August 10, 1998, which plans shall comply
with building codes of all applicable authorities or agencies having
jurisdiction. Landlord agrees that it will not unreasonably withhold or delay
approval of the preliminary plans and specifications (upon which approval, such
plans and specifications are to be referred to as the "Approved Plans and
Specifications"), provided the same are complete and consistent in all respects
(including design and materials) with plans for a first-class full service
restaurant. Landlord agrees to review Tenant's proposed plans promptly, and to
provide Tenant with any required changes within ten (10) business days after its
receipt of such proposed plans. Landlord and Tenant shall use reasonable efforts
to accommodate the interests of the other and to agree on final construction
plans and specifications. Any modifications to the Approved Plans and
Specifications required to comply with local building codes or other
governmental requirements shall be prepared at Tenant's expense, and any
additional cost of construction occasioned thereby shall be paid by Tenant.
During progress of construction, Tenant shall provide Landlord with one copy of
all shop drawings for Landlord's records, and copies of all field and job
progress reports from Tenant's architect(s). Neither Landlord's approval of the
Plans and Specifications, nor any other inspections or approvals of the
improvements on or about the Premises or plans for construction thereof by
Landlord's employees, agents or inspecting engineers, shall constitute a
warranty or representation as to the technical sufficiency, adequacy, safety or
compliance with laws of the plans, structures, any of their component parts, or
any other physical condition or feature pertaining to the improvements, it being
acknowledged by Tenant that Landlord has made such approvals solely as a
landlord in determining and protecting the value of its property for internal
purposes, and not as an expert in construction-related matters.
3. PERMITS. Tenant, at its sole cost and expense, shall obtain or cause to
be obtained all building permits, licenses, other governmental approvals and
temporary and permanent certificates of occupancy which may be required to
permit the construction of the Tenant Work
in accordance with the Approved Plans and Specifications and this Lease. Tenant
shall apply for all permits for the construction of the Tenant Work at the
earliest stage possible, shall diligently pursue procuring the same and shall at
all times apprise Landlord of the status of its application. Tenant shall
provide Landlord with copies of all correspondence and other inquiries it may
receive from the District of Columbia or other applicable authority in
connection with its permit application. Tenant further covenants to (i) use a
so-called "expeditor" reasonably acceptable to Landlord in its attempt to
procure a building permit and (ii) make such changes to the Plans and
Specifications as the District of Columbia or other applicable authority may
require as a condition of issuing the building permit, provided that such
changes do not result in increased hard costs to Tenant (exclusive of
architectural or engineering expenses and other soft costs) by more than Fifty
Thousand and No/100 Dollars ($50,000.00) or prevent Tenant, in its reasonable
opinion, from operating a first-class restaurant without undue hardship.
Landlord agrees to assist and cooperate with Tenant, at no out-of-pocket expense
to Landlord, in the obtaining of such permits, licenses, approvals and
certificates.
4. CODE COMPLIANCE. As a part of the Tenant Work, Tenant shall upgrade the
Building and all components thereof and systems therein and make such
improvements thereto as may be necessary to ensure that, upon completion of the
Tenant Work, the Building complies with all applicable laws, ordinances, codes,
rules and regulations, including, without limitation, those relating in any way
to the Americans with Disabilities Act. Tenant's architect shall provide
Landlord with a written certification to the foregoing affect prior to
Landlord's approval of the proposed Plans and Specifications.
5. REQUIRED CONSTRUCTION. Without limiting the generality or applicability
of any applicable provision of this Work Agreement or the Lease, Tenant agrees
that the following provisions shall apply to the performance of the Tenant Work:
(i) All work required to ensure the structural integrity
of the Building shall be substantially complete before Tenant
commences any improvements to the interior of the Building. In
performing any Tenant Work which involve construction work upon the
exterior of the Buildings, Tenant agrees that it shall, at its sole
expense, restore all areas of the Building's exterior, including,
without limitation all adjacent planting areas, sidewalks and
parking areas, if any, affected by the Tenant Work, to their
original condition; and
(ii) Tenant and its contractor performing any Tenant
Work shall provide copies of warranties for the Tenant Work and the
materials and equipment which are incorporated into the Building in
connection therewith, as well as provide to Landlord copies of all
operating and maintenance manuals for all equipment and materials
incorporated into the Building as part of the Tenant Work. Without
limitation, all aspects of Tenants Work shall be warranted to be
free from defects in design and workmanship for a period of not less
than one (1) year from substantial completion of construction.
6. REIMBURSEMENTS. Tenant shall, upon demand, reimburse Landlord for all
reasonable out-of-pocket costs paid by Landlord to a licensed architect or
engineer for a scope of work to include reviewing proposed Plans and
Specifications and any changes thereto, reviewing
construction contracts and similar documents, reviewing permit applications,
conducting and attending inspections and generally monitoring construction of
the Tenant Work.
7. GENERAL CONTRACTOR. Landlord shall have the right to approve the
identity of the general contractor which will perform the Tenant Work. In all
events, all contractors (including the general contractor) and subcontractors
performing work on behalf of Tenant within the Premises shall be licensed to do
business in the District of Columbia and shall be bondable. Tenant's
construction contract shall indemnify Tenant and Landlord from damages, losses
and expenses associated with the acts and omissions of Tenant's contractor, its
agents, employees and subcontractors, and shall otherwise be subject to
Landlord's prior reasonable approval. All work is to be performed in accordance
with national and/or local building and fire codes and shall be performed in
accordance with all Occupational Safety and Health Administration (OSHA) safety
standards. Tenant agrees to comply (or to cause its contractors to comply) with
all applicable Federal, state and local laws, regulations and ordinances in the
performance of the Tenant Work, and to promptly rectify any violations of such
laws caused by the acts or omission of Tenant, its employees, agents and/or
contractors, and Tenant shall be responsible for any non-compliance by Tenant or
its agents, employees and contractors.
8. INTENTIONALLY OMITTED.
9. INSPECTIONS. Representatives of Landlord shall have the right to enter
the Premises during business hours for the purpose of inspecting the progress of
the Tenant Work and confirming that all Tenant Work is being performed in
accordance with the Approved Plans and Specifications. Tenant agrees to promptly
take all steps necessary to correct any defects in its construction of the
Tenant Work which are discovered by Landlord's architect or construction
supervisor in the course of any such inspections; PROVIDED, Landlord's failure
to require any corrections shall not constitute a warranty that the work
performed prior to the date of the inspection has been completed in accordance
with the Approved Plans and Specifications nor a waiver of the right to object
to any such defects at a later time. Tenant agrees to cooperate with Landlord to
facilitate such inspection, including without limitation: (a) notifying Landlord
and such construction manager of all scheduled construction meetings between
Tenant and its general contractor, which Tenant agrees to conduct on not less
than a weekly basis; (b) providing to Landlord copies of all governmental
inspection reports, promptly after the same have been received by Tenant; (c)
responding promptly to all Landlord requests for information, or other inquiries
regarding the progress of the Tenant Work; and (d) permitting Landlord's
representatives free and clear access to the Premises during any governmental
inspections of the Tenant Work. Tenant shall notify Landlord not less than three
(3) business days in advance of, and shall have the right to participate in, any
inspection of the work being performed by Tenant and its contractor in which a
punch list for such work is intended to be prepared, and shall further have the
right to require the inclusion of any BONA FIDE punch list items on such punch
list.
10. MATERIALS. Tenant shall use only new materials (as specified in the
Approved Plans and Specifications, subject to minor deviations due to
unavailability of any specified materials), or historic materials which are in
good condition where required, in connection with the Tenant Work. All equipment
shall meet all applicable standards and bear Underwriters Laboratories labels.
11. CLEAN WORK SITE. Tenant's general contractor shall keep all
construction areas clean and free of trash and debris, and shall police the
activities of its contractors, subcontractors and their respective employees
with regard to keeping the Building clean. All construction debris shall be
removed from the Building daily. (No debris shall be stockpiled on the Premises
at any location at any time.) Tenant's contractor(s) shall not be permitted to
smoke on or about the Premises
12. LIEN FREE CONSTRUCTION. All Tenant Work shall be paid for in full and
in a timely fashion by Tenant, and shall be performed in a lien-free,
first-class, and good and workmanlike manner, and in accordance with applicable
codes and requirements. The general contractor and each sub-contractor shall
sign and deliver to Landlord a Release of Liens when requested to do so by
Landlord.
13. INSURANCE REQUIREMENTS. During the course of construction, Tenant
shall secure, pay for, and maintain, or cause its contractors and subcontractors
to secure, pay for, and maintain all of the insurance policies set forth below
(in addition to such insurance as may from time to time be required by the
District of Columbia and/or Federal laws, codes, regulations or authorities):
(i) With respect to the Tenant Work, Builder's Risk
Insurance, naming Landlord as an additional insured and loss payee,
in an amount not less than one hundred percent (100%) of the
replacement cost of the Building, as determined by Landlord.
(ii) Worker's Compensation, as required by state law,
and Employer's Liability Insurance with a limit of not less than
$2,000,000 (or more if required by the laws of the District of
Columbia) and any insurance required by any Employee Benefit Act or
similar statute applicable where the work is to be performed, as
will protect the contractor and subcontractors from any and all
liability under the aforementioned act(s) or similar statute(s).
(iii) Comprehensive General Liability Insurance
(including Contractor's Protective Liability) in an amount not less
than $5,000,000 per occurrence whether involving personal injury
liability (or death resulting therefrom) or property damage
liability or a combination thereof (combined single limit coverage)
with a minimum aggregate limit of $2,000,000. Such insurance shall
insure such general contractor against any and all claims for
personal injury, death, and damage to the property of others arising
from its operations under its contract, whether such operations are
performed by Tenant's contractors, subcontractors, or
sub-subcontractors, or by anyone directly or indirectly employed by
any of them.
(iv) Comprehensive Automotive Liability Insurance, for
the ownership, maintenance, or operation of any automotive
equipment, whether owned, leased, or otherwise held, including
employer's non-ownership and hired car liability endorsements, in an
amount not less than $2,000,000 per occurrence
and $2,000,000 aggregate, combined single limit bodily injury and
property damage liability.
The insurance policies set forth in clauses (i) - (iv), above, shall insure such
general contractor against any and all claims for bodily injury, including death
resulting therefrom, and damage to the property of others arising from its
operations under its contract in connection with construction of the Premises,
whether performed by such general contractor, or its subcontractors, or
sub-subcontractors, or by anyone directly or indirectly employed by any of them.
The Tenant Work may not commence until all of the foregoing required insurance
has been obtained certificates of such insurance have been delivered to
Landlord. Tenant's insurance policies shall name the Landlord and Landlord's
mortgagee(s) as additional insureds, and shall provide that no change or
cancellation of such insurance coverage shall be undertaken without thirty (30)
days' prior written notice to Landlord. Landlord shall have the right to require
Tenant, and Tenant shall have the duty, to stop work in the Premises immediately
if any of the coverage Tenant is required to carry herein lapses during the
course of the work, in which event the Tenant Work may not be resumed until the
required insurance is obtained and satisfactory evidence of same is provided to
Landlord. The insurance required under this Section 13 shall be in addition to
any and all insurance required to be procured by the parties pursuant to the
terms of the Lease.
14. CONSTRUCTION INDEMNITY. Tenant hereby agrees to indemnify, defend and
hold Landlord harmless from and against any and all losses, costs, claims,
damages, liabilities and expenses (including, without limitation, court costs
and attorneys' fees) of every kind and nature which are incurred by Landlord, in
whole or in part, whether directly or indirectly, in connection with or on
account of the construction by Tenant and its contractors and subcontractors of
the Tenant Work at the Premises.
15. AS-BUILT SPECIFICATIONS. Upon substantial completion of the Tenant
Work, Tenant agrees to provide Landlord with two (2) complete sets of "As-Built"
plans and specifications for the Premises and all ancillary improvements
constructed by Tenant.
16. SUPPLEMENTAL REMEDIES. In the event of any violation of this Work
Agreement which continues for a period of five (5) days after written notice
from Landlord to Tenant identifying the violation with reasonable specificity
(except that no such notice of default shall be required for a failure to obtain
any required insurance). Landlord shall have the right, in addition to any other
remedies provided for in this Lease due to such default by Tenant, to cause
Tenant and Tenant's contractor to stop all Tenant Work, and Landlord may, in
such event, seek any and all appropriate legal and equitable relief in order to
enforce the provisions of this Work Agreement.
IN WITNESS WHEREOF, the parties have executed this Work Agreement as of
the date and year first set forth above.
LANDLORD:
0000 Xxxxxxxxxx Xxxxxx Associates,
WITNESS: a District of Columbia Joint Venture
/s/ [ILLEGIBLE] By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx, Partner
WITNESS:
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
S & W D.C., L.L.C.
ATTEST: a Delaware limited liability company
By: New York Restaurant Group, Inc.,
Manager
/s/ [ILLEGIBLE] By: /s/ Xxx Xxxx
------------------------------- -------------------------------------
Secretary Name: Xxx Xxxx
-------------------------------
Title: PRESIDENT
------------------------------
[Corporate Seal]
------------------------------------------
FIRST AMENDMENT
TO
AGREEMENT OF LEASE
(0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.)
------------------------------------------
XXXXX & WOLLENSKY
July 8, 1998
--------------------
FIRST AMENDMENT
TO
AGREEMENT OF LEASE
--------------------
This First Amendment to Agreement of Lease (this "First Amendment") is
made as of this 8th day of July, 1998, by and between (i) 0000 Xxxxxxxxxx Xxxxxx
Associates, a District of Columbia joint venture ("Landlord"), and (ii) S & W
D.C., L.L.C., a Delaware limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Agreement of Lease
dated July 8, 1998 (the "Lease") pertaining to the Premises (as defined in the
Lease) at 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
B. The parties wish to set forth herein their understanding with respect
to leasehold financing.
AGREEMENT
NOW, THEREFORE in consideration of One ($1.00) Dollar and other good and
valuable consideration, the parties agree as follows:
1. SCOPE OF AMENDMENT. The parties hereby amend the Lease, but only
as herein expressly set forth. Except as herein expressly amended, the Lease
shall remain in full force and effect in accordance with its terms.
2. MORTGAGABILITY PROVISIONS. The Lease shall be amended by adding
thereto a new paragraph 68 entitled "Mortgage of Leasehold", which shall read as
follows:
"68(a) Notwithstanding the provisions of Section 25 of this
Lease, Tenant shall have the right to encumber this Lease by a
mortgage, deed of trust, or similar security instrument,
subject to this paragraph and the other provisions of this
Lease. All such instruments are hereinafter referred to as
"Leasehold Mortgages" and the holder of any such Leasehold
Mortgage shall be referred to as "Lender".
(b) Upon written notice to Landlord that Tenant has entered
into a Leasehold Mortgage, Landlord agrees to the following:
(i) Landlord shall not accept any surrender of this
Lease, nor any material modification of this Lease,
without Lender's consent, which consent of Lender, if it
is to obtain the benefit of this paragraph, shall not be
unreasonably withheld, conditioned or delayed.
(ii) Landlord shall permit Lender to make any payments
or do any other act required of Tenant to prevent the
termination of this Lease. Any such acts by Lender shall
be effective to the same extent as if the same would
have been performed by Tenant.
(c) Should any event of default by Tenant under this
Lease occur, Lender shall have sixty (60) days from
receipt by Tenant of notice of default in which to
remedy such default, so long as Lender shall (i)
additionally cure any default or monetary obligations of
Tenant within such sixty (60)-day period, (ii) continue
to pay and perform the current obligations of Tenant
under this Lease, and (iii) commence foreclosure
proceedings within such sixty (60)-day period and
diligently prosecute the same to conclusion.
(d) Any event of non-monetary default which Lender
cannot practicably remedy shall be deemed remedied if,
within sixty (60) days of receipt by Tenant of a notice
of default, Lender shall (i) commence foreclosure
proceedings, (ii) diligently prosecute such proceedings
to conclusion, (iii) fully cure any monetary defaults,
(iv) pay all current monetary obligations, and (v)
immediately, upon gaining possession of the Premises,
perform all acts necessary to cure such non-monetary
defaults.
(e) Foreclosure of the Leasehold Mortgage or any sale
thereunder shall not require the consent of Landlord and
such foreclosure proceeding shall not constitute a
breach of any provision under the Lease, it being
understood and agreed by the parties that the foregoing
shall not be construed to be a waiver of any rights of
Lender under this Lease.
(f) Should Landlord terminate this Lease by reason of
any default of Tenant, Landlord shall, upon written
request by Lender received within twenty-one (21) days
after such termination, execute and deliver to Lender a
new lease of the Premises for the remainder of the Term
of the Lease under the same terms and conditions as are
contained in this Lease, except that, as a condition
precedent to the effectiveness of any such new lease,
Lender shall cure any and all defaults under this Lease
(determined as if this Lease had not been terminated)
and shall pay any and all of Landlord's reasonable legal
fees incurred in connection with Tenant's default under
this Lease and, if applicable, the new lease requested
by Lender.
-2-
(g) Tenant and, if Lender succeeds to Tenant's interest
under this Lease or if Lender exercises any rights under
this Paragraph 68, Lender shall promptly reimburse
Landlord for any reasonable legal fees that Landlord
incurs as a result of the existence, operation or
enforcement of any Leasehold Mortgage.
IN WITNESS WHEREOF, the parties, pursuant to due authority, have executed
this First Amendment to Agreement of Lease under seal as of the day and year
first hereinabove written.
LANDLORD:
--------
0000 Xxxxxxxxxx Xxxxxx Associates,
WITNESS: a District of Columbia Joint Venture
/s/ [ILLEGIBLE] By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx, Partner
WITNESS:
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
------
S & W D.C., L.L.C.
ATTEST: a Delaware limited liability company
By: New York Restaurant Group, Inc.,
Manager
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxx
------------------------------- -------------------------------------
Secretary Name: Xxxxx Xxxx
-------------------------------
Title: President
------------------------------
[Corporate Seal]
Guarantor has reviewed this
First Amendment to Agreement of
Lease and hereby consents to the
same.
The New York Restaurant Group, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx, President
-3-
------------------------------------------
SECOND AMENDMENT
TO
AGREEMENT OF LEASE
(0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.)
------------------------------------------
XXXXX & WOLLENSKY
April 29, 1999
--------------------
SECOND AMENDMENT
TO
AGREEMENT OF LEASE
--------------------
This Second Amendment to Agreement of Lease (this "Second Amendment") is
made as of this 29th day of April, 1999, by and between (i) 0000 Xxxxxxxxxx
Xxxxxx Associates, a District of Columbia joint venture ("Landlord"), and (ii) S
& W D.C., L.L.C., a Delaware limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Agreement of Lease
dated July 8, 1998, as amended by that certain First Amendment to Agreement of
Lease dated July 8, 1998 (together referred to as the "Lease") pertaining to the
Premises (as defined in the Lease) at 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
B. The parties wish to set forth herein their understandings with respect
to certain matters relating to development of a sidewalk cafe at the Premises.
AGREEMENT
NOW, THEREFORE, in consideration of One ($1.00) Dollar and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. SCOPE OF AMENDMENT. The parties hereby amend the Lease, but
only as herein expressly set forth. Except as herein expressly amended, the
Lease shall remain in full force and effect in accordance with its terms.
Except as otherwise defined in this Second Amendment, all capitalized terms
shall have the meanings ascribed to them in the Lease.
2. SIDEWALK CAFE DEVELOPMENT DOCUMENTS. Tenant has
requested that Landlord execute and deliver that certain (i) Application For
Public Space Permit (the "Application") and (ii) Covenant For Use of Special
Material (the "Covenant"), and any associated documents that Landlord may
elect to execute (collectively, the "Development Documents"), copies of which
are attached as Exhibits A-1 and A-2 respectively, for the convenience and
substantial benefit of, and solely as an accommodation to, Tenant. Landlord
has agreed to do so provided Landlord's lender approves the same and this
Second Amendment, and Tenant executes and delivers this Second Amendment.
3. TENANT'S OBLIGATIONS. Tenant expressly covenants, acknowledges
and agrees that (i) it shall be responsible for and shall perform any and all
obligations of "Applicant" under the Application and "Owner" under the Covenant,
and (ii) Landlord shall have no liability for payment or responsibility for
performance under the Development Documents.
4. DEFAULT. Tenant expressly acknowledges and agrees that (i)
Tenant's default under the Application and/or the Covenant shall constitute an
immediate Event of Default under the Lease, entitling Landlord to exercise all
rights and remedies available to Landlord at law or in equity or under the Lease
(as modified by this Second Amendment); and (ii) any and all amounts due from
Tenant under the Development Documents or any of them shall constitute
Additional Rent under the Lease.
5. INSURANCE. Concurrent with Tenant's execution and delivery of
this Second Amendment, Tenant shall provide Landlord and its lender with
insurance, which satisfies all of the insurance requirements of the Lease,
protecting Landlord, its lender, and Tenant from any liability occurring in or
on the contemplated sidewalk cafe and the public space affected by the
Development Documents.
6. INDEMNITY. In addition to all obligations of Tenant and all
rights and remedies available to Landlord under the Lease, and to induce
Landlord to execute and deliver the Development Documents, Tenant expressly
acknowledges, covenants and agrees it will defend all actions against Landlord
(including any partners, employees or agents) and that it will indemnify and
save Landlord harmless from and against any and all liabilities, losses,
damages, causes of action, suits, claims, demands, judgments, costs and expenses
of any kind or nature (including court costs and reasonable attorneys' fees)
relating to or arising from or in connection with the Development Documents or
any of them, including, without limitation, any of the foregoing arising from or
in connection with: (i) the possession, use, occupancy, management, repair,
maintenance or control of the Premises or any portion thereof or the public
space affected by the Development Documents or any of them; (ii) any act or
omission of Tenant or Tenant's agents, sublessees, contractors, employees, or
invitees under the Development Documents or any of them; (iii) any violation or
injury to person or property or loss of life sustained in or about the Premises
or the public space affected by the Development Documents or any of them; (iv)
any violation, breach of, or default under the Development Documents or any of
them or this Lease by Tenant; and (v) any other matter arising from Tenant's
occupancy or use of the Premises or the public space affected by the Development
Documents or any of them or any act or omission of Tenant, its agents,
sublessees, contractors, employees or invitees in connection therewith.
-2-
IN WITNESS WHEREOF, the parties, pursuant to due authority, have executed
this Second Amendment to Agreement of Lease under seal as of the day and year
first hereinabove written.
LANDLORD:
0000 Xxxxxxxxxx Xxxxxx Associates,
WITNESS: a District of Columbia Joint Venture
/s/ [ILLEGIBLE] By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx, Partner
WITNESS:
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
S & W D.C., L.L.C.
ATTEST: a Delaware limited liability company
By: New York Restaurant Group, Inc.,
Manager
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxx
------------------------------- -------------------------------------
Secretary Xxxxx Xxxx, President
[Corporate Seal]
Guarantor has reviewed this Second
Amendment to Agreement of Lease and
hereby consents to the same and
acknowledges that the Guaranty dated
July 8, 1998 guarantees all of Tenant's
payment and performance obligations
under the Lease as modified by this
Second Amendment to Agreement of Lease.
The New York Restaurant Group, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx, President
-3-
-------------------------------------
EXHIBIT A-1
TO
SECOND AMENDMENT
TO
AGREEMENT OF LEASE
(APPLICATION)
-------------------------------------
DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
BUILDING AND LAND REGULATION ADMINISTRATION;
PERMIT PROCESSING DIVISION (727-7039)
[GRAPHIC] GOVERNMENT
OF THE
DISTRICT OF COLUMBIA
APPLICATION FOR PUBLIC SPACE PERMITS
(PRINT IN INK OR TYPE: DO NOT WRITE IN SHADED AREAS)
=================================================================================================================
(A) ALL APPLICANTS MUST COMPLETE ITEMS 1 THRU 18 1. Date of Application
================================================================================---------------------------------
2. Address of Premise for which Public Space 3. Lot: 4. Square: 5. Type of 6. Previous Permit Number
Work is Proposed Application: If Renewal:
|X| New
0000 - 00xx Xxxxxx, X.X. 877 117 |_| Renewal
-----------------------------------------------------------------------------------------------------------------
7. Owner of Premise: 8. Owner's Address: 9. Phone
0000 - 00xx Xxxxxx 0000 Xxxxxx Xxxxxxxxx Xx. X.X.
Associates Joint Venture Xxxxx 000, Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------
10. Authorized Agent (If applicable): 11. Firm's Name: 12. Address: 13. Phone
-----------------------------------------------------------------------------------------------------------------
14. Check all proposed work; indicate the specific street of work and the names of boundary streets, and specify
the length and width of the work area.
=================================================================================================================
Located on the following Between And Length of Width of
Check Proposed Work Street (or Alley) (Street Name) (Street Name) Work (ft) Work (ft)
=================================================================================================================
A. Temporary Use for:
1. Crane
-----------------------------------------------------------------------------------------------------------------
2. Truck: |_| Dump |_| Concrete
|_| Construction Equipment
-----------------------------------------------------------------------------------------------------------------
3. Dumpster
-----------------------------------------------------------------------------------------------------------------
4. Hoists/Scaffolds
-----------------------------------------------------------------------------------------------------------------
5. Use of Sidewalk for:
( )
-----------------------------------------------------------------------------------------------------------------
6. Use of Roadway for:
( )
-----------------------------------------------------------------------------------------------------------------
B. Excavation for:
( )
-----------------------------------------------------------------------------------------------------------------
C. Sheeting and Shoring
-----------------------------------------------------------------------------------------------------------------
D. Driveway Construction
-----------------------------------------------------------------------------------------------------------------
E. Sidewalk Construction
-----------------------------------------------------------------------------------------------------------------
F. Curb and Gutter Construction
-----------------------------------------------------------------------------------------------------------------
X. Xxxxx Construction
-----------------------------------------------------------------------------------------------------------------
H. Grading |_| Street |_| Alley
-----------------------------------------------------------------------------------------------------------------
|_| Trees
I. |_| Planter Boxes
|_| Xxxxxx
-----------------------------------------------------------------------------------------------------------------
J. |_| Fence |_| Wall
-----------------------------------------------------------------------------------------------------------------
K. Other (Specify):
=================================================================================================================
15. Description of Proposed Work: 16. Start Date:
-------------------------
17. End Date:
-----------------------------------------------------------------------------------------------------------------
16. APPLICANT'S SIGNATURE: I have read and I understand the conditions set forth on this application. I further
understand that penalties are provided for furnishing false information.
AGENT'S SIGNATURE: /s/ [ILLEGIBLE] Date: 5 May 1999
---------------------------------------------------------
OWNER'S SIGNATURE: Date:
---------------------------------------------------------
=================================================================================================================
COMPLETE Page 4 If Trees, Rental of Public Space, Fuel Oil Tanks, & Parking Lot.
Page 2
CONDITIONS OF ALL PUBLIC SPACE APPLICATIONS AND PERMITS
The applicant, or the applicants authorized agent, in affixing his or its
signature hereto and in accepting any permit issued on the basis of this
application, agrees that the applicant, and any person, firm or corporation
employed by the applicant, when working on or occupying public space as
authorized by the said permit, whether such work or occupancy is on, or above
the surface of such space, will comply with the following conditions:
(1) That the performance of such work or the occupancy of such space shall
be strictly in accordance with the conditions set forth herein and on both sides
of the permit authorizing such work or occupancy of public space.
(2) That the performance of such work or the occupancy of such space as
authorized by the said permit shall be in full compliance with all applicable
laws and regulations of the District of Columbia.
(3) That the applicant, at the risk and expense, guarantees that the
public space occupied by the applicant or required for the performance of the
work authorized by the said permit, at all times will be kept in a safe
condition, and where the work aforesaid results in any excavation in any street,
alley, sidewalk, or other public space, the applicant will insure that such
excavation is kept in a safe condition until such street, alley, sidewalk, or
other public space has been repaired or resurfaced by the District of Columbia.
The repair or resurfacing of the street, alley, sidewalk or other public space
made necessary by the excavation, will be performed by the District of Columbia
at the expense of the applicant.
(4) That the applicant guarantees that if, in the opinion of the Director
of the Department of Transportation or his representative, any work performed
in, or occupancy of, public space by him or on his behalf, in any manner becomes
dangerous to, or interferes unnecessarily with, pedestrian or vehicular traffic,
the applicant will take such action as, in the opinion of the said Director or
his representative is necessary to remove such dangerous condition or
unnecessary interference with traffic.
(5) That the applicant will save harmless, indemnify and keep indemnified
the District of Columbia, its officers and employees, from all claims, suits,
charges, counsel fees, and judgments to which the said District, its officers
and employees may be subject, on account of injury to persons or damage to
property, including property of the District of Columbia, due to negligence of
the applicant, or occasioned by work not authorized by said permit, or resulting
from failure to observe and comply with terms and conditions of this
application.
(6) That the applicant agrees that the backfilling of any excavation made
by him or on his behalf will be performed in the manner prescribed below and
should any settlement or sinking resulting from backfilling occur within two (2)
years after the District of Columbia, at the applicant's expense, has repaired
or resurfaced the surface of the public space in which excavation was made, the
applicant nevertheless will save harmless, indemnify and keep indemnified the
District of Columbia from any injury, loss, cost, or damage occasioned by a
physical change in such repaired or resurfaced public space.
Should repairs become necessary over said excavation during the
aforementioned period due to settlement, of said excavation occasioned by
improper excavation work or backfilling, the necessary re-excavation and repair
shall be done by the District of Columbia and the cost thereof shall be charged
to the applicant.
(7) That the applicant agrees that all portions of the street excavated
will be put in as good condition as before the excavation was made and that such
excavation will be backfilled within twenty-four (24) hours after approval by
the District, (if required) of the construction, connections or repairs
installed or made therein, such backfilling not to extend more than two inches
(2") above the adjoining pavement or surface and to be thoroughly compacted in
such manner as to avoid any sinking or settlement either of the backfill or of
any pavement laid thereon for a period of two (2) years after the area over such
excavation has been repaired or resurfaced by the District.
(8) That the applicant agrees that on each day any work is to be performed
under the authority of this permit, he will notify the Office of Coordinator of
Underground Construction, prior to the commencement of such work, of all
locations at which any of the said work is to be performed, and whether such
work is new work or work already in progress.
SPECIAL ATTENTION. -- In addition to the requirements of Standard
Specifications of the Department of Transportation regarding work on Saturdays,
Sundays, or legal holidays, the permittee is advised that no work shall be
performed under the permit on Saturdays, Sundays, or legal holidays except with
the consent of the Department of Transportation.
CONDITIONS OF EXCAVATION IN PUBLIC SPACE AND TREATMENT OF TREES IN PUBLIC SPACE
(1) No cut will be made in a roadway or alley unless material to complete
the job is on hand or immediately available, that work will be carried to
completion in the shortest possible time, and that there will be no interference
with traffic unless such interference is specifically Authorized by the Director
of the Department of Transportation or his representative.
(2) A clear, safe pedestrian passageway not less than 6 feet wide, in line
with any existing sidewalk will be provided at all times unless otherwise
authorized by the Director of the Department of Transportation or his
representative.
(3) The applicant will not cut or injure trees, or pile earth or other
material within 3 feet of trees unless such trees are properly protected in a
manner approved by the Director of the Department of Transportation or his
representative.
(4) No existing underground construction will be interfered with.
(5) All pipes and conduits except as otherwise specified in Section 408-2
of D.C. Plumbing Code, will be laid not less than 30 inches below any roadway,
not less than 24 inches below grade on other public space, except that street
light conduits may be laid not less than 18 inches below any approved grade,
unless otherwise authorized.
(6) Surface (lawns, grass, shrubs, sidewalks, etc.) will be restored upon
completion of work.
Page 3
CONDITIONS OF TREATMENT OF TREES IN PUBLIC SPACE
(1) All material, equipment, surplus excavated material, debris, etc.,
will be removed from public space as soon as possible, consistent with working
hours and conditions, within three working days following the completion of the
work authorized by the permit.
(2) In the event the District of Columbia, as a consequence of any failure
of the applicant to maintain the public space in a safe condition, is required
to repair said public space, such repair by the District of Columbia shall be at
the applicant's expense and the applicant agrees to reimburse the District of
Columbia for all costs of such repair and shall not be relieved of
responsibility for maintaining said public space in safe condition, by reason of
any such repair.
CONDITION OF ERECTING OR REPAIRING RETAINING WALLS, FENCES, COPINGS, LEADS
AND STEPS, PLANT XXXXXX, OR PAVED PARKING IN PUBLIC SPACE:
The fence, wall, copings, leads, steps, or xxxxxx will not obstruct
entrance to any accessible parking area required by the Zoning Regulations of
the District of Columbia.
CONDITIONS OF GRADING STREETS OR ALLEYS:
(1) All trees, stumps and underbrush are to be removed from the sub-grade.
(2) The alley or street when graded will be left in a safe, smooth, and
well-drained condition so that no water will be impounded.
(3) Notify Grading Engineer of the Street Division at least ten (10) days
prior to starting this grading work. Notify the Chief Inspector of Street
Division twenty-four (24) hours in advance of starting the work. The permit will
be delivered on the job by the inspector.
CONDITIONS OF CONSTRUCTING SIDEWALK, CURB & GUTTER, ALLEY OR DRIVEWAY:
(1) The work will be done at the whole risk and cost of the property
owner, in accordance with Standard Specifications of the District of Columbia,
and under the supervision of the Department of Transportation, Street Division,
and will conform to line and grade furnished by the said Department, and the
owner will assume responsibility for all damages to persons or property
occurring as a consequence of the use of public space.
(2) The permit is to be delivered by a District representative, to the
applicant or his agent at the site of the work, and, until so delivered, no
operations thereunder, other than the necessary grading of the sidewalk may be
performed by the applicant or his agent. The applicant or his agent will notify
the engineer of Streets not less than twenty-four hours prior to the scheduled
commencement of the work authorized by the permit of the time when construction
operations are to commence, in order that the District representative may
deliver the said permit.
CONDITION OF CONSTRUCTING OR REPAIRING DRIVEWAY:
In the event the District of Columbia, as a consequence of any failure of
the applicant to maintain the public space comprising applicant's driveway in a
safe condition, is required to repair said public space, such repair by the
District of Columbia shall be at the applicant's expense and the applicant
agrees to reimburse the District of Columbia for all costs of such repair and
shall not be relieved of responsibility for maintaining said public space in
safe condition, by reasons of any such repair.
CONDITIONS OF RENTAL OF PUBLIC SPACE AND SIDEWALK CAFE:
(1) The applicant understands that the rental of public space is temporary
and that no right, title, or interest in such public space is conveyed by the
permit.
(2) The Director of Department of Transportation may, by written notice,
require the permittee to vacate all or part of the rented public space at any
time. Upon demand to vacate such public space, the permittee will promptly
remove any personal property on the rented space, or reimburse the District for
the cost of moving such property.
(3) The permittee shall have no recourse against the District of Columbia,
the United States, the officers or agents of District of Columbia, the officers
or agents of the United States for any loss or damage occasioned by the
permittee being required to vacate all or any part of the surface space which he
had been granted permission to use.
(4) All provisions of Article 43 of the D.C. Police Regulations will be
strictly adhered to.
(5) Plans, permits and letters of approval from the Public Space Committee
must be kept on the rented public premises at all times.
Page 4
----------------------------------------
H.P.A. No.: O.G. No.: S.L. No.:
(DO NOT WRITE IN SHADED AREAS) ----------------------------------------
=============================================================================================================
(B) TREES (COMPLETE ITEMS 19 THRU 22)
=============================================================================================================
19. Type of Work: 20. Number of Trees: 21. Type of Trees: 22. Name of Trees:
|_| New Building |_| Removal |_| Curb
|_| Driveway |_| Planting |_| Parking
|_| Trimming
=============================================================================================================
(C) RENTAL OF PUBLIC SPACE. SIDEWALK CAFE, PARKING LOT, FUEL OIL TANK
(COMPLETE ITEMS 23 THRU 29)
=============================================================================================================
23. Insurance Company's Name: 24. Policy or Certificate Number: 25. Expiration Date
-------------------------------------------------------------------------------------------------------------
26. Type of Sidewalk Cafe: 27. Length of Rental Period: 28. Hours of Weekday Use: 29. Hours of Weekend Use
|_| Enclosed From _____ to _____ From _____ to _____
|_| Unenclosed
=============================================================================================================
(D) APPROVALS (OFFICIAL USE ONLY)
=============================================================================================================
|_| PERMIT CONTROL DPW - PUBLIC SPACE WIDTHS/RESTRICTIONS
-------------------------------------------------------------------------------------------------------------
1. Fine Arts by: __________________ Date: _________
2. Land Xxxx by: __________________ Date: _________ Street Name: _________________________________________
3. PADC by: _______________________ Date: _________ Street Width: ________________________________________
4. WMATA by: ______________________ Date: _________ Road Width: __________________________________________
Sidewalk Width: ______________________________________
5. Control by: ____________________ Date: _________ Parking: _____________________________________________
Restrictions: ________________________________________
-------------------------------------------------------------------------------------------------------------
|_| DPW WATER/SEWER |_| ZONING |_| STREETSCAPE
-------------------------------------------------------------------------------------------------------------
Approved by: Date: District: By: Date: Approved by: Date:
-------------------------------------------------------------------------------------------------------------
PUBLIC SPACE APPROVAL STAMP
Restrictions of Permit: ------------------------------------------------
Deposit Number:
------------------------------------------------
=============================================================================================================
(E) FINAL APPROVAL FOR PERMIT ISSUANCE (OFFICIAL USE ONLY)
=============================================================================================================
Permit Type Approved by Approval Deposit Amount Permit Number Expiration
Date ($) Date
-------------------------------------------------------------------------------------------------------------
Temporary Occupancy
-------------------------------------------------------------------------------------------------------------
Excavation, Sweeping and Storing
-------------------------------------------------------------------------------------------------------------
Construct Sidewalks,
Curbs, Gutter Alley
-------------------------------------------------------------------------------------------------------------
Walls, Fences, Copings
Landscapes, Plant
Xxxxxx, Paved Parking
-------------------------------------------------------------------------------------------------------------
Trees
-------------------------------------------------------------------------------------------------------------
Driveway Construction
-------------------------------------------------------------------------------------------------------------
Sidewalk Gate
-------------------------------------------------------------------------------------------------------------
Other
-------------------------------------------------------------------------------------------------------------
-------------------------------------
EXHIBIT A-2
TO
SECOND AMENDMENT
TO
AGREEMENT OF LEASE
(COVENANT)
-------------------------------------
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
WASHINGTON, D.C.
COVENANT FOR USE OF SPECIAL MATERIAL ON
THE SIDEWALK AND/OR PARKING
KNOW ALL PERSONS BY THESE PRESENTS:
WHEREAS, 0000 Xxxxxxxxxx Xxxxxx Associates are the Owner(s) of the
following described property in Washington, D.C. located at the following street
address: 0000 00xx Xxxxxx X.X. Washington, D.C.; Xxx 000, Xxxxxx 000, hereafter
referred to as "said property"; and
WHEREAS, the Owner(s) of said property(ies) has applied to the District
for the issuance of a public space permit in accordance with the provisions of
24 DCMR Chapter 1, Section 100.1 ET SEQ, (1985) as amended; and
WHEREAS, the Owner(s) of said property(ies) has requested that the
District authorize the use of nonstandard paving materials for paving of the
public parking, sidewalks, and (other public space), hereinafter referred to as
"abutting public spaces," as described in Exhibit A attached hereto; and
WHEREAS, the Owner(s) of said property(ies) has submitted a proposal,
hereinafter referred to as "the paving proposal: attached hereto as Exhibit B,
for the use of nonstandard materials for paving said abutting public space; and
WHEREAS, the rules and regulations of the District of Columbia authorize
the Mayor, or his agent, designee, or representative to impose such conditions
on the issuance of said permit as the Mayor may require, 24 DCMR Chapter 1,
Section 100.1 ET SEQ, (1985), as amended; and
WHEREAS, the District has reviewed and accepted said proposal (as
amended); and
WHEREAS, the Owner(s) of said property(ies) desires to meet the conditions
and requests of the District by complying with all of the terms and conditions
of said permit.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the issuance of the permit for construction, the Owner(s), for themselves, their
heirs, successors and assignee does hereby declare that said property
shall be held transferred, sold and conveyed subject to the restrictions hereto
set forth to wit:
1. That no right, title, or interest of the public as thereby acquired,
waived or abridged.
2. That the Owner(s) shall pave the abutting public space in accordance with
the requirements set forth in the permit conditions and in accordance with
the paving proposal attached hereto as Exhibit B.
3. That the District has the legal right to authorize work and/or issue
permits for cuts to be made in the said paving and will do so without the
permission of, or notice to, the property owner.
4. That, without prior notice from the District of Columbia, the Owner(s)
shall maintain and repair the abutting public space until such time, and
upon such conditions as the District may require to extinguish said
covenant;
5. That the Owner(s) shall maintain and keep abutting public space to a clean
and safe condition at all times, without the need of prior notice by the
District.
6. That repair(s) of aforesaid public space undertaken by the Owner(s) shall
be made pursuant to a permit issued by the District of Columbia. Repairs
shall be made by and at the expense and risk of the Owner(s).
7. That whenever the Mayor finds that said paving is in such condition as to
be immediately dangerous to persons or property, upon notice so to do, the
Owner(s) will make the pavement safe and secure within 72 hours of the
date said notice is served. That in a case where the public safety
requires immediate action, the Mayor may use such materials, equipment,
workmen and assistants as may be necessary, to make the paving safe and
secure.
8. That the Owner(s) agrees to stockpile the original paving material at a
minimum of ten percent of the total paved area and to retain this
percentage of stockpiled materials on site for all future repairs.
DPW-90-300
(4/3/90)
2
9. That if the District must authorize or perform excavations in said public
space for the purpose of maintaining, repairing, or installing utilities
in said abutting public space, or for any other public purpose, the
Owner(s) agrees to supply the District with such quantities of stockpiled
materials as are needed to complete repairs. The Owner(s) shall supply
said stockpiled materials within 72 hours of the District's request
therefore.
10. The Owner(s) hereby relieves the District of all duty to repair or
maintain said abutting public space until such time, and upon such
condition as the District agrees to extinguish these covenants.
11. That upon the failure of the Owner(s) to repair or maintain said abutting
public space in a safe condition, or the failure of the Owner(s) to supply
stockpiled materials for utility cut repairs, the District has the right
to cause temporary or permanent repairs using asphalt or standard paving
materials.
12. That the Owner(s) shall reimburse the District for any expense the
District occurs in making any repairs to abutting public spaces.
13. That the Owner(s) shall indemnify and save harmless the District and all
of its officers, agents, and servants against any and all claims or
liability from whatever sources whatsoever, arising from, [ILLEGIBLE] on
or, as a result of any act, occurrence, or default of the Owner(s) as
designing, constructing, paving, [ILLEGIBLE] or repairing said
abutting public space.
14. That the District shall have the right to extinguish this Covenant at any
time and repave said abutting public space using District standard
materials.
15. That the written consent of the District shall be required prior to the
extinguishment of any of the covenants described herein in a document
recordable at the office of the Recorder of Deeds for the District of
Columbia and recorded at no expense to the District. Such consent to
extinguishment shall be given at such time as the District shall issue a
permit enabling the Owners to replace the nonstandard paving materials
with District standard materials. The cost of repaving said abutting
public space with standard District paving materials shall be borne by the
Owner(s).
16. That the covenants contained herein shall be deemed real covenants and
shall run with the land and shall bind the Owner(s) and their heirs,
successors and assigns.
17. That the District shall have the right to specifically enforce this
Declaration.
[SIGNATURE PAGE TO FOLLOW]
(SIGNATURE PAGE - JOINT VENTURE]
IN WITNESS WHEREOF, the undersigned joint venture, the owner of Lot(s)____
in Square(s) ___________, has caused these presents to be executed in its
name, and does hereby constitute and appoint ___________ as its true and lawful
attorney-in-fact for itself and in its name to appear before any officer
authorized by law to take and certify acknowledgements and then and there to
acknowledge and deliver these presents as its act and deed.
0000 00xx Xxxxxx Associates
---------------------------------------
Joint Venture
Witness:
/s/ X.X. Xxxxxxx By: Xxxxxxxx X. Xxxxxxx, by [ILLEGIBLE]
------------------------------- --------------------------------------
Title
Corporate Seal (if applicable)
Witness:
/s/ X.X. Xxxxxxx By: Xxxxxxx Xxxxxx, by [ILLEGIBLE]
------------------------------- --------------------------------------
Title
Corporate Seal (if applicable)
DISTRICT OF COLUMBIA,
as:
I, X. X. Xxxxxxx, a Notary Public, in and for the District of Columbia, do
hereby, certify that Xxxxxx X. Xxxxxxx as agent for Xxxxxxxx X. Xxxxxxx and
Xxxxxxx Xxxxxx being personally well-known to me as the authorized
representative(s) of 0000 00xx Xxxxxx Associates, a joint venture, a party to
the foregoing attached Covenant bearing the date of the _______ day of
_________________, 19 _____, and the owner of Lot(s) __________ in Square(s)
___________, appeared before me and acknowledged said Declaration to be the
joint venture's act and deed.
Given under my hand and seal this 5th day of May, 1999.
/s/ X. X. Xxxxxxx
---------------------------------------
Notary Public
My Commission Expires: 11/30/99
X. X. Xxxxxxx
Notary Public, District of Columbia
My Commission Expires November 30, 1999
(SIGNATURE PAGE - DISTRICT OF COLUMBIA)
IN WITNESS WHEREOF, the Mayor of the District of Columbia, having first
considered and approved the foregoing Covenants, has directed the execution
thereof in the name of said District of Columbia, by the Secretary of the
District of Columbia, who has hereto set his hand and affixed the seal of the
District of Columbia hereto under authority of the Act of Congress entitled
"An Act to Relieve the Commissioners of the District of Columbia of Certain
Ministerial Duties" approved February 11, 1932.
DISTRICT OF COLUMBIA
(a municipal corporation)
WITNESS: By:
----------------------------------------
Secretary,
District of Columbia
(CORPORATE SEAL)
DISTRICT OF COLUMBIA, as:
I, ____________________________, a Notary Public in and for the
District of Columbia, do hereby certify that
_____________________________________, who is personally well-known to me as
the person named as Secretary of the District of Columbia in the foregoing
Covenant bearing date on the _______ day of _________________, 19 ____, and
hereunto annexed, personally appeared before me in said District and, as
Secretary aforesaid, and by virtue of the authority in him vested,
acknowledged the same to be the act and deed of the Mayor of the District of
Columbia.
Given under my hand and seal this _______ day of _______________, 19 ____.
---------------------------------------
Notary Public
My Commission Expires: ___________________________________
APPROVED:
-------------------------------------
Deputy Corporation Counsel
PUBLIC SPACE COVENANT
Table of Exhibits
1. Exhibit A - Metes and bounds description of the area to be paved.
2. Exhibit B - A written description of the materials to be used, total square
footage to be paved, and any details pertinent to the execution
of the pavement proposal.
GUARANTY
THIS GUARANTY is made and entered into as of the 8th day of July, 1998, by
The New York Restaurant Group, Inc., a Delaware corporation ("Guarantor"), to
and for the benefit of 0000 Xxxxxxxxxx Xxxxxx Associates, a D.C. joint venture,
and its successors and assigns ("Landlord").
BACKGROUND
A. Concurrently with the execution of this Guaranty, Landlord and S & W
D.C., L.L.C., a Delaware limited liability company ("Tenant") have entered into
that certain Agreement of Lease of even date herewith (the "Lease"), regarding
certain premises located in 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. (the
"Premises") and more fully described in the Lease.
B. Guarantor owns all of the interests in stock of Tenant and therefore
has a direct financial interest in Tenant.
C. The parties recognize that Landlord agreed to the Lease solely because
Guarantor agreed to guaranty the timely payment and performance of all of the
obligations of Tenant and its successors and assigns under the Lease, and that
such guaranty was and is a material inducement to the execution and delivery of
the Lease by Landlord.
D. Guarantor warrants and acknowledges that because of its financial
interest in Tenant and in the benefits and advantages which will result from the
Lease, it is and will be significantly benefited by the Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and as an inducement for
the granting, execution and delivery of the Lease, the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Guarantor hereby unconditionally and
irrevocably guarantees, promises and agrees as follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE.
(a) Guarantor hereby guaranties to Landlord, absolutely,
unconditionally and irrevocably, (a) the full and prompt payment of all sums
which may at any time become due under the Lease, including, but not limited to,
Base Rent, Percentage Rent and Additional Rent, and all other sums and charges
(collectively referred to as "Tenant's Monetary Obligations") which the Tenant
is obligated to pay to or on behalf of Landlord or to pay to third parties under
the provisions of the Lease, and (b) the full and timely performance and
observance of all of the covenants, terms, conditions and agreements provided in
the Lease to be performed and observed
by Tenant (collectively referred to as "Tenant's Non-Monetary Obligations").
Guarantor hereby covenants and agrees to and with Landlord that if at any time
Tenant shall fail to make payment when due of any of Tenant's Monetary
Obligations, or if at any time Tenant shall fail to perform and observe when and
as required any of the Tenant's Non-Monetary Obligations, Guarantor shall
forthwith pay the Tenant's Monetary Obligations to Landlord and any arrears
thereof, and shall forthwith faithfully and punctually perform and fulfill all
of the Tenant's Non-Monetary Obligations and, in addition thereto, shall
forthwith pay to Landlord all reasonable attorneys' fees and disbursements
incurred by Landlord or caused by any such default or the enforcement of this
Guaranty.
(b) Guarantor covenants that, within one hundred twenty (120) days
after the end of each calendar year, it shall furnish Landlord current,
certified financial statements satisfying the requirements of Paragraph 30.2 of
the Lease.
2. NATURE OF GUARANTY. This Guaranty is an absolute and unconditional
guaranty of payment (and not merely of collection) and of performance of Tenant,
its successors and assigns under or pursuant to the Lease. The liabilities of
Guarantor are primary, irrevocable and co-extensive with that of Tenant and also
joint and several with that of Tenant and one another, and this Guaranty shall
be enforceable against Guarantor without the necessity of any suit or proceeding
on Landlord's part of any kind or nature whatsoever against Tenant and without
the necessity of any notice of non-payment, non-performance or non-observance or
of any notice of acceptance of this Guaranty or of any other notice or demand to
which Guarantor might otherwise be entitled, all of which Guarantor hereby
expressly waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of (a) the assertion of,
or the failure to assert by Landlord, against Tenant any of the rights or
remedies reserved to Landlord pursuant to the terms, covenants and conditions of
the Lease, or (b) any non-liability of Tenant under the Lease, whether by
insolvency, discharge in bankruptcy, or any other defect or defense which may
now or hereafter exist in favor of Tenant.
3. CONTINUING GUARANTY. This Guaranty shall be a continuing guaranty, and
it is expressly agreed that the liability of Guarantor hereunder shall in no way
be affected, modified or diminished by reason of (a) any assignment, renewal,
modification, amendment, extension or waiver of the Lease or any of the terms,
covenants and conditions thereof, even if the effect of such assignment,
renewal, modification, amendment, extension or waiver shall be to increase the
obligations of Guarantor hereunder, or (b) any extension of time that may be
granted by Landlord to Tenant, or (c) any consent, release, indulgence or other
action, inaction or omission under or in respect of the Lease, or (d) any
dealings or transactions or matter or thing occurring between Landlord and
Tenant, or (e) any bankruptcy, insolvency, reorganization, liquidation,
arrangement, assignment for the benefit of creditors, receivership, trusteeship
or similar proceeding affecting Tenant, or (f) any obligation under the Lease
being or becoming unenforceable, whether or not notice of any of the events
described in this paragraph 3 is given to Guarantor.
4. BANKRUPTCY. Should Landlord be obligated by any bankruptcy or other law
to repay to Tenant or to Guarantor or to any trustee, receiver or other
representative of either of
-2-
them, any amounts previously paid, this Guaranty shall be reinstated in the
amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute any obligation to make such repayments if it in good faith
believes that any such obligation exists.
5. NO WAIVER. No delay on the part of Landlord in exercising any right,
power or privilege under this Guaranty or failure to exercise the same shall
operate as a waiver of or otherwise affect any such right, power or privilege,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
6. MODIFICATION. No waiver or modification of any provision of this
Guaranty nor any termination of this Guaranty shall be effective unless in
writing and signed by Landlord; nor shall any such waiver be applicable except
in the specific instance for which it is given.
7. REMEDIES. All of Landlord's rights and remedies under the Lease and
under this Guaranty, now or hereafter existing at law or in equity or by statute
or otherwise, are intended to be distinct, separate and cumulative and no
exercise or partial exercise of any such right or remedy therein or herein
mentioned is intended to be in exclusion of or a waiver of any of the others.
8. NO SUBROGATION. No payment or performance by Guarantor pursuant to any
provision hereof or otherwise shall entitle Guarantor, by subrogation or
otherwise, to the rights of Landlord to any payment by Tenant or out of the
property of Tenant, except after payment of all sums and fulfillment of all
covenants, terms, conditions or agreements to be paid or performed by Tenant and
its successors or assigns under the Lease.
9. ESTOPPEL. Guarantor agrees that it will, at any time and from time to
time, within ten (10) days following written request by Landlord, execute,
acknowledge and deliver to Landlord a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating such
modification). Guarantor agrees that such certificate may be relied on by anyone
holding or proposing to acquire any interest in the "Premises", the "Building"
or the "Land" (as those terms are defined in the Lease) from or through Landlord
or by the holder of any mortgage or prospective holder of any mortgage or of any
interest therein.
10. SPECIFIC PERFORMANCE. Guarantor covenants, warrants and agrees with
Landlord, and is hereby irrevocably estopped from denying, that the subject
matter of this Guaranty is unique, that any failure to perform the covenants,
agreements, conditions and obligations under this Guaranty shall cause
irreparable injury and damage to Landlord, and that, accordingly, in addition to
and without limiting, reducing, altering, or otherwise affecting any of the
rights of Landlord at law or in equity to seek damages or other relief, Landlord
shall have the right to obtain from any court of competent jurisdiction an order
or decree compelling specific performance by Guarantor of this Guaranty and of
all the obligations, undertakings, conditions, agreements, covenants and other
provision of this Guaranty.
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11. SEVERABILITY. If any provision of this Guaranty shall be declared to
be unenforceable in whole or in part by a court of competent jurisdiction, that
part of this Guaranty found to be unenforceable shall be deemed stricken and
severed and the remaining provisions and portions shall continue in full force
and effect.
12. SUCCESSORS AND ASSIGNS. Guarantor agrees that this Guaranty shall
inure to the benefit of and may be enforced by Landlord and its successors and
assigns, and shall be binding upon and enforceable against Guarantor and its
legal representatives, successors and assigns.
13. GOVERNING LAW. This Guaranty, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the internal laws of the District of
Columbia (and without regard to any conflicts-of-law principles). Should any
provision of this Guaranty require judicial interpretation, it is agreed that
the court interpreting or considering same shall not apply the presumption that
the provisions hereof shall be more strictly construed against a party by reason
of the rule or conclusion that a document should be construed more strictly
against the party who itself or through its agent prepared the same, it being
agreed that all parties hereto have participated in the preparation of this
Guaranty and that each party consulted legal counsel before the execution of
this Guaranty.
14. LANDLORD'S SIGNATURE NOT NECESSARY. This Guaranty may be enforced by
Landlord without the necessity of its signature appearing hereon.
15. NOTICES. Any notice provided, required or permitted to be given by
either party to the other under this Guaranty must be in writing, and may be
served (i) by depositing the same in the United States mail, addressed to the
party to be notified, postage prepaid, and registered or certified, with return
receipt requested; (ii) by hand-delivery with a receipt therefor; (iii) by
nationally recognized overnight delivery service, such as Federal Express,
Purolator or Xxxxx; or (iv) by telecopy or facsimile service. For purposes of
notices, the addresses of the parties shall be as follows:
If to Landlord:
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xx. Xxxxxxxx X. Xxxxxxx
Xx. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with copies to:
Xx. Xxxxxxx X. Xxxxxxx
The Forge Company
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
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-and-
Xxxxx X. O'Conor, Esquire
Xxxxxx, Flyer & Xxxxx, P.C.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
If to Guarantor:
The New York Restaurant Group, Inc.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxx Xxxx, President
Facsimile: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxxxxx, Esquire
Xxxxxxx & Xxxxxxxx
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
-and-
The New York Restaurant Group, Inc.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxx Xxxxxx
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address to
which such notices shall be directed. All notices shall be effective upon
receipt or refusal to accept receipt. If any mortgagee shall notify Tenant that
it is the holder of a mortgage affecting the Premises or any part thereof, no
notice, request or demand thereafter sent by Tenant to Landlord shall be
effective until a copy of same shall be sent to such mortgagee in the manner
prescribed in this Section at such address as such mortgagee shall designate.
16. GUARANTOR'S AUTHORITY. Guarantor shall, concurrently with the signing
of this Guaranty, furnish to Landlord certified copies of the resolutions of its
board of directors authorizing Guarantor to enter into this Guaranty. Moreover,
each individual executing this Guaranty on behalf of Guarantor hereby represents
and warrants that (i) he or she is duly authorized to execute and deliver this
Guaranty, (ii) Guarantor is a duly organized corporation under the laws of the
State of Delaware, is qualified to do business in the District of Columbia, is
in good standing under the laws of the State of Delaware and the laws of the
District of
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Columbia, and has the power and authority to enter into this Lease, and (iii)
all corporate action requisite to authorize Guarantor to enter into this
Guaranty has been duly taken.
17. REMEDIES CUMULATIVE; NO WAIVER. All rights and remedies given herein
and/or by law or in equity to Landlord are separate, distinct and cumulative,
and none of them, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other. No failure of Landlord to exercise any power given
Landlord hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof. Receipt by Landlord of any Base Rent,
Percentage Rent, or Additional Rent with knowledge of the breach of any
provisions hereof shall not constitute a waiver of such breach and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless made
in writing.
18.1 WAIVER OF JURY TRIAL, ETC. TO INDUCE LANDLORD TO ENTER INTO THE
GUARANTY, GUARANTOR WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY OR ALL ISSUES
ARISING IN ANY ACTION OR PROCEEDING BETWEEN GUARANTOR AND LANDLORD OR ITS
SUCCESSORS OR ASSIGNS, UNDER OR IN CONNECTION WITH THE LEASE, THIS GUARANTY OR
ANY OF ITS PROVISIONS OR ANY OTHER DOCUMENTS RELATING THERETO. IT IS AGREED AND
UNDERSTOOD THAT ANY ACTION, SUIT OR PROCEEDING PERTAINING TO THIS GUARANTY OR
THE LEASE SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY, AND THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS, SUITS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS GUARANTY OR THE LEASE. GUARANTOR ACKNOWLEDGES THAT THE PARTIES
WISH TO STREAMLINE AND MINIMIZE THE COST OF THE DISPUTE RESOLUTION PROCESS BY
AGREEING TO WAIVE THE RIGHT TO A JURY TRIAL. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT
NEITHER LANDLORD NOR ANY PERSON ACTING ON BEHALF OF LANDLORD HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS
DISCUSSED THIS WAIVER WITH COUNSEL. GUARANTOR ACKNOWLEDGES AND AGREES THAT THIS
PROVISION IS A SPECIFIC AND MATERIAL ASPECT OF THE AGREEMENT BETWEEN THE PARTIES
AND THAT LANDLORD WOULD NOT ENTER INTO THE LEASE WITH THE TENANT IF THIS
GUARANTY WERE NOT EXECUTED AND DELIVERED.
18.2 CONSENT TO JURISDICTION. LANDLORD AND GUARANTOR EACH CONSENTS TO AND
SUBMITS TO IN PERSONAM JURISDICTION AND VENUE IN THE DISTRICT OF COLUMBIA, AND
IN THE FEDERAL DISTRICT COURTS WHICH ARE LOCATED IN THE DISTRICT OF COLUMBIA.
LANDLORD AND GUARANTOR EACH ASSERTS THAT IT HAS PURPOSEFULLY AVAILED ITSELF OF
THE BENEFITS OF THE LAWS OF THE DISTRICT OF COLUMBIA AND WAIVES ANY OBJECTION TO
IN
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PERSONAM JURISDICTION ON THE GROUNDS OF MINIMUM CONTACTS, WAIVES ANY OBJECTION
TO VENUE, AND WAIVES ANY PLEA OF FORUM NON CONVENIENS, THIS CONSENT TO AND
SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED TO THIS LEASE.
REGARDLESS OF WHETHER LANDLORD OR GUARANTOR'S ACTIONS TOOK PLACE IN THE DISTRICT
OF COLUMBIA OR ELSEWHERE IN THE UNITED STATES, THIS SUBMISSION TO JURISDICTION
IS NONEXCLUSIVE, AND DOES NOT PRECLUDE THE OTHER PARTY FROM OBTAINING
JURISDICTION OVER GUARANTOR OR LANDLORD IN ANY COURT OTHERWISE HAVING
JURISDICTION.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and
year first above written.
GUARANTOR:
ATTEST: The New York Restaurant Group, Inc.,
a Delaware corporation
/s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxx
------------------------------------- -----------------------------------
Secretary Name: Xxxxx Xxxx
---------------------------------
Title: President
--------------------------------
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