Exhibit 10.7
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Aid Association for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Law Department
SPECIFIC ASSIGNMENT, SUBORDINATION,
AND ATTORNMENT AGREEMENT
THIS SPECIFIC ASSIGNMENT, SUBORDINATION, AND ATTORNMENT AGREEMENT ("Agreement")
is entered into as of the 18th day of September, 1998, by and among S & W D.C.,
L.L.C., a Delaware limited liability company ("Tenant"), 0000 XXXXXXXXXX XXXXXX
ASSOCIATES, a District of Columbia joint venture ("Borrower"), and AID
ASSOCIATION FOR LUTHERANS, a Wisconsin corporation ("Lender").
RECITALS
A. Tenant is the lessee and Borrower is the lessor under that Certain Lease
Agreement dated July 8, 1998, as amended, (the "Lease").
B. Lender has made a loan to Borrower which is secured by a Deed of Trust and
Security Agreement from Borrower to Lender dated March 3, 1994 (the "Deed
of Trust") and an Assignment of Rents and Leases from Borrower to Lender
dated March 3, 1994 (the "Assignment") covering the property described on
EXHIBIT A attached hereto wherein the premises (the "Premises") covered by
the Lease are located (the "Property").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Lender to make the
requested loan, Tenant, Borrower, and Lender hereby agree and covenant as
follows:
1. ASSIGNMENT. Borrower does hereby absolutely and presently grant, transfer,
and assign to Lender the Lease and all rents and other sums payable under
the Lease; provided, however, that until written demand is made by Lender
to Tenant, all rents and other sums payable under the Lease shall be paid
to Borrower, but only as they accrue. Borrower covenants and agrees that
upon Tenant's receipt of written notice from Lender to pay the
SPECIFIC ASSIGNMENT
August 17, 1998
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rent to Lender and its successors and assigns, Tenant shall pay the rent
and all other sums due under the Lease as such rent and other sums become
due to the Lender and shall have no liability to Borrower for such rent
and other sums due under the Lease which are paid to Lender and its
successors and assigns. Tenant hereby recognizes the Assignment of the
Lease made by Borrower to Lender and agrees to pay, upon receipt of
written demand from Lender, all rents and other sums as directed by
Lender.
2. SUBORDINATION. Borrower, Tenant and Lender hereby agree that the Lease and
all of its terms and provisions (including, without limitation, any option
or options to purchase or rights of first refusal affecting the Property,
or any portion thereof, contained therein) is and shall at all times be
subject and subordinate in all respects to the Deed of Trust and to all
supplements, amendments and modifications thereto, and to all extensions,
substitutions, rearrangements and/or replacements thereof.
3. NON-DISTURBANCE AND ATTORNMENT. If Tenant is not in default under any of
the terms, covenants or conditions contained in the Lease or this
Agreement, or if applicable cure periods have not expired. Lender agrees
that in the event of foreclosure of the Mortgage, trustee's sale, deed in
lieu of foreclosure, or other enforcement of the terms and conditions of
the Mortgage, or the exercise by Lender of its rights under the
Assignment, or in the event Lender comes into possession or acquires title
to the Property as a result of foreclosure or the threat thereof, or as a
result of other means, such action shall not result in either a
termination of the Lease, or a diminution or impairment of any of the
rights granted to Tenant in the Lease, except as hereinafter provided.
If the interest of Borrower in the Property shall be transferred to Lender
or any transferee of Lender (such transferee, its successors and assigns,
including, but not limited to, Lender, shall hereinafter be referred to as
("Purchaser") by reason of foreclosure, trustee's sale, deed in lieu of
foreclosure or other proceeding for the enforcement of the Mortgage or
rights of Lender under the Assignment, and Tenant is not in default of its
obligations under the Lease, or if applicable cure periods have not
expired. Purchaser shall not name or join Tenant in any foreclosure,
trustee's sale or other proceeding to enforce the Mortgage or Assignment,
and Purchaser shall be bound to Tenant, except as provided in Section 4,
below, and Tenant shall be bound to any Purchaser, under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof,
and any extensions thereof with the same force and effect as if such
Purchaser were the original landlord under the Lease. Tenant does hereby
attorn to such Purchaser, including Lender if Lender is such Purchaser, as
the landlord under the Lease, said attornment to be effective and
self-operative without the execution of any further instruments upon
Purchaser's succeeding to the interest of the Borrower
under the Lease.
4. LIMITATION ON PURCHASER OBLIGATIONS. Notwithstanding anything to the
contrary contained in Section 3 hereof, a Purchaser shall not be:
4.1 liable for any damages or other relief attributable to any act or
omission of any prior lessor under the Lease (including, without
limitation, Borrower);
SPECIFIC ASSIGNMENT
August 17, 1998
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4.2 subject to any offsets or defenses that Tenant may have against a
prior lessor under the lease (including, without limitation,
Borrower);
4.3 liable for any damages or other relief attributable to any latent or
patent defects in construction with respect to the Property;
4.4 liable for the return of any security deposit under the Lease unless
such security deposit shall have been actually deposited with
Purchaser;
4.5 bound by any rent or additional rent that Tenant might have paid in
advance to any prior lessor under the Lease (including, without
limitation, Borrower), for any period beyond the month in which
Purchaser succeeds to the interest of Borrower under the Lease;
4.6 bound by any waiver or forbearance by any prior lessor under the
Lease (including, without limitation, Borrower) or bound by any
agreement or modification of the Lease made without the prior
written consent of Lender; or
4.7 bound by any covenant made by any prior lessor under the Lease
(including, without limitation, Borrower) to complete any
construction on the Property covered by the lease or to pay any sums
to Tenant in connection therewith, unless Purchaser shall have
expressly consented thereto in writing.
5. FURTHER ACTIONS. Tenant covenants and agrees from time to time to do all
acts and execute such instruments as it shall be requested by Lender to do
or execute for the purposes of carrying out and effectuating this
Agreement and the intent hereof, and evidencing this Agreement, whether by
filing with any public office, or agency or otherwise.
6. COVENANTS OF TENANT. Tenant agrees that during the term of the Lease,
Tenant will not:
6.1 pay any rent or additional rent more than one (1) month in advance
to any lessor (including, but not limited to, Borrower); or
6.2 cancel, surrender, amend or modify the Lease without Lender's prior
written consent nor terminate the Lease because of a default
thereunder by Borrower unless Tenant shall have first given Lender
written notice thereof and a reasonable opportunity to cure such
default.
In the event the Lease is rejected or deemed rejected in any bankruptcy
proceeding with respect to landlord, Tenant shall not exercise any right
it may have to treat the Lease as terminated under 11 U.S.C.
Section 365(h), as amended,
SPECIFIC ASSIGNMENT
August 17, 1998
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7. MERGER. Borrower, Tenant and Lender agree that unless Lender shall
otherwise consent in writing, the fee title to the Property and the
leasehold estate created by the Lease shall not merge but shall remain
separate and distinct, notwithstanding the union of said estates either in
Borrower or Tenant or any third-party by purchase, assignment or
otherwise.
8. LIMITATION ON LIABILITY. Notwithstanding anything to the contrary
contained herein or in the Lease, in the event that any Lender shall
acquire title to the Property, such Lender shall have no obligation, nor
incur any liability, beyond the then interest if any, of such Lender in
the Property, and Tenant shall look exclusively to such interest of such
Lender if any, in the Property for the payment and discharge of any
obligations imposed upon such Lender hereunder or under the Lease, and
such Lender is hereby released and relieved of any other liability
hereunder and under the Lease. As regards such Lender, Tenant shall look
solely to the estate or interest owned by such Lender in the Property and
Tenant will not collect or attempt to collect any such obligation or
liabilities or any judgment therefor, out of any other assets of Lender.
By executing this Agreement, Borrower specifically acknowledges and agrees
that nothing contained in this paragraph shall impair, limit, offset,
lessen, abrogate or otherwise modify the obligations of Borrower to Tenant
under the Lease.
9. MODIFICATION OF AGREEMENT. This agreement may not be modified orally or in
any other manner except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
10. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors
and assigns.
11. GOVERNING LAW. This Agreement shall be governed by and construed under the
laws of the District of Columbia.
12. CERTIFICATION RELATING TO LEASE. Tenant and Borrower hereby certify that,
as of the date hereof, there are no defaults (or events that with the
giving of notice and/or the passage of time could become a default) on the
part of the other party under the Lease, that the Lease is a complete
statement of the agreement of the parties under the Lease with respect to
the leasing of the Premises, that the Lease is in full force and effect,
and that all conditions to the effectiveness or continuing effectiveness
thereof required to be satisfied as of the date hereof have been
satisfied.
13. INTEGRATION. This Agreement shall be the whole and only agreement with
regard to the subjection and subordination of the Lease and the leasehold
estate created thereby, together with all rights and privileges of Tenant
thereunder, to the lien or charge of the Deed of Trust and shall supersede
and cancel, but only insofar as would affect the priority between the
Lease and the Deed of Trust any prior agreements as to such subjection or
subordination, including, but not limited to, those provisions contained
in the Lease that provide for the subjection or subordination of the Lease
and the leasehold estate created thereby to a deed or deeds of trust or to
a mortgage or mortgages.
SPECIFIC ASSIGNMENT
August 17, 1998
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14. NOTICES. All notices and demands that may or are required to be given by
any party to any other party hereunder shall be given in writing and shall
be deemed to have been fully given within three (3) business days after
being deposited in the United States mail, certified or registered,
postage prepaid, and addressed to such party at the address set forth
below beside its signature. The parties may change their addresses by
giving notice to the other parties in the same manner as above provided.
Tenant agrees that it shall send a copy of any notice of default or
similar statement under the Lease to Lender at the same time such notice
or statement is sent to the Lessor under the Lease.
15. CAPTIONS. The captions and headings of the paragraphs of this Agreement
are for convenience only and are not to be used in construing this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, and all
counterparts together shall be construed as one document.
In WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
ADDRESS: TENANT:
0000 Xxxxx Xxxxxx, 0xx Xxxxx X & X X.X., XXX,
Xxx Xxxx, XX 00000 a Delaware limited liability company
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: XXXXX XXXX
Title: PRESIDENT
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: XXXX XXXXXX
Title: Secretary/Treas
GUARANTOR:
THE NEW YORK RESTAURANT
GROUP, INC., a Delaware corporation
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: XXXXX XXXX
Title: PRESIDENT
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Secretary/Treas
SPECIFIC ASSIGNMENT
August 17, 1998
- 5 -
(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
ADDRESS: LENDER:
-------- -------
0000 Xxxxx Xxxxxxx Xxxx AID ASSOCIATION FOR XXXXXXXXX,
Xxxxxxxx, Xxxxxxxxx 00000 a Wisconsin corporation
Attn: Investment Department
Loan No. 71830
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Vice President -
Mortgages and Real Estate
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Assistant Secretary
ADDRESS: BORROWER:
-------- ---------
0000 X Xxxxxx, X. X. 0000 XXXXXXXXXX XXXXXX
Xxxxxxxxxx, X.X. 00000 ASSOCIATES, a District of Columbia
joint venture
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: XXXXXXXX X. XXXXXXX
Title: PARTNER
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: XXXXXXX XXXXXX
Title: PARTNER
SPECIFIC ASSIGNMENT
August 17, 0000
- 0 -
XXXXX XX Xxx Xxxx )
) ss.
COUNTY OF New York )
On 8-27-98, 1998, before me, the undersigned, a Notary Public in and for said
State, personally appeared Xxxxx Xxxx and Xxxx Xxxxxx, personally known to me or
proved to me on this basis of satisfactory evidence to be the persons who
executed the within instrument as the President and the Sec./Treas,
respectively, of S & W D.C., L.L.C., a Delaware limited liability company, the
company that executed the within instrument, and acknowledged to me that such
company executed the within instrument pursuant to its bylaws or a resolution of
its board of directors.
WITNESS my hand and official seal
XXXXXX X. XXXXXX
Notary Public, State of New York /s/ [ILLEGIBLE]
No. 00-0000000 ------------------------------
(SEAL) Qualified in Kings County Notary Public
Cert. filed in New York County
Commission Expires June 30, 2000
My Commission expires:__________________
STATE OF WISCONSIN )
) ss.
COUNTY OF OUTAGAMIE )
On Sept. 15, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxxx X. Xxxxxx and Xxxxx Xxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
persons who executed the within instrument as the Vice President - Mortgages and
Real Estate and Assistant Secretary, respectively, of AID ASSOCIATION FOR
LUTHERANS, a Wisconsin corporation, the corporation that executed the within
instrument and acknowledged to me that such corporation executed the within
instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
(SEAL) /s/ Xxxxxxxx X. Xxx Xxxxxx
---------------------------------------
Notary Public
My Commission expires: 8-11-2002.
SPECIFIC ASSIGNMENT
August 17, 1998
- 7 -
STATE OF )
)ss.
COUNTY OF )
On 18 SEPTEMBER, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared XXXXXXXX X. XXXXXXX and XXXXXXX XXXXXX,
personally known to me or proved to me on this basis of satisfactory evidence to
be the persons who executed the within instrument as the PARTNER and PARTNER,
respectively, of 0000 XXXXXXXX XXXXXX Associates, a District of Columbia joint
venture, the joint venture that executed the within instrument, and acknowledged
to me that such joint venture executed the within instrument, pursuant to its
bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
(SEAL)
/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
- 8 -
Exhibit A
SPECIFIC ASSIGNMENT
August 17, 1998
- 9 -
0000 Xxxxxxxxxx Xxxxxx Associates
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
July 8, 0000
X & X X.X., X.X.X.
x/x Xxx Xxx Xxxx Restaurant Group, Inc.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Esquire
Dear Xx. Xxxxxx:
All defined terms used in this Letter shall have the same meanings
ascribed to them in the Agreement of Lease dated July 8, 1998 by and S & W D.C.,
L.L.C., a Delaware limited liability company, and 0000 Xxxxxxxxxx Xxxxxx
Associates, a District of Columbia joint venture.
This letter will confirm that in the event the Premises are not
substantially in broom-clean condition upon the date Landlord delivers the
Premises to Tenant and such condition increases Tenant's cost to clean the
Premises, Landlord Agrees to pay such increased costs of cleaning the Premises,
within ten (10) business days of Landlord's receipt of invoices evidencing such
increased costs, in an amount not to exceed Two Thousand Dollars ($2,000). In no
event shall this limited obligation of Landlord under this letter agreement to
pay the increased costs of cleaning the Premises delay the Commencement Date of
the Lease.
Yours sincerely,
0000 Xxxxxxxxxx Xxxxxx Associates, a
District of Columbia joint venture
WITNESS:
/s/ [ILLEGIBLE] By: Xxxxxxxx X. Xxxxxxx
------------------------------------- -----------------------------------
Xxxxxxxx X. Xxxxxxx, Partner
WITNESS:
/s/ X. X. Xxxxxxx By: Xxxxxxx Xxxxxx
------------------------------------- -----------------------------------
Xxxxxxx Xxxxxx, Partner
RESOLUTION OF S&W D.C., LLC.
WHEREAS, there has been presented to and discussed at this meeting, a
lease to be entered into by S&W D.C., LLC, as Tenant, with 0000 Xxxxxxxxxx
Xxxxxx Associates as Landlord,
WHEREAS, the members of this limited liability company deem it to be in
the best interests of this LLC and its members that the Lease be entered into,
NOW, THEREFORE, it is resolved that this LLC execute the Lease with 0000
Xxxxxxxxxx Xxxxxx Associates which has been presented to and discussed at this
meeting; and
IT IS FURTHER RESOLVED, that The New York Restaurant Group, Inc., and it
hereby is, authorized, empowered and directed to execute and deliver on behalf
of this Corporation the said Lease.
Dated: New York, New York
July 10, 1998
S&W D.C., LLC
By: New York Restaurant Group, Inc., Manager
By: /s/ Xxxxx Xxxx
--------------------------------------------
THE NEW YORK RESTAURANT GROUP, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Secretary
RESOLUTION OF S&W D.C., LLC.
WHEREAS, there has been presented to and discussed at this meeting, a
lease to be entered into by S&W D.C., LLC, as Tenant, with 0000 Xxxxxxxxxx
Xxxxxx Associates as Landlord,
WHEREAS, the members of this limited liability company deem it to be in
the best interests of this LLC and its members that the Lease be entered into,
NOW, THEREFORE, it is resolved that this LLC execute the Lease with 0000
Xxxxxxxxxx Xxxxxx Associates which has been presented to and discussed at this
meeting; and
IT IS FURTHER RESOLVED, that The New York Restaurant Group, Inc., and it
hereby is, authorized, empowered and directed to execute and deliver on behalf
of this Corporation the said Lease.
Dated: New York, New York
July 10, 1998
S&W D.C., LLC
By: New York Restaurant Group, Inc., Manager
By: /s/ Xxxxx Xxxx
--------------------------------------------
THE NEW YORK RESTAURANT GROUP, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Secretary
RESOLUTION OF S&W D.C., LLC.
WHEREAS, there has been presented to and discussed at this meeting, a
lease to be entered into by S&W D.C., LLC, as Tenant, with 0000 Xxxxxxxxxx
Xxxxxx Associates as Landlord,
WHEREAS, the members of this limited liability company deem it to be in
the best interests of this LLC and its members that the Lease be entered into,
NOW, THEREFORE, it is resolved that this LLC execute the Lease with 0000
Xxxxxxxxxx Xxxxxx Associates which has been presented to and discussed at this
meeting; and
IT IS FURTHER RESOLVED, that The New York Restaurant Group, Inc., and it
hereby is, authorized, empowered and directed to execute and deliver on behalf
of this Corporation the said Lease.
Dated: New York, New York
July 10, 1998
S&W D.C., LLC
By: New York Restaurant Group, Inc., Manager
By: /s/ Xxxxx Xxxx
--------------------------------------------
THE NEW YORK RESTAURANT GROUP, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Secretary
