EXHIBIT 10.69
MODIFICATION OF LEASE
---------------------
AGREEMENT (hereinafter "this Modification" made as of the 3rd day of
December, 2001 between XXXXXXX TENANTS CORPORATION, a New York corporation
having an address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Landlord") and ATLANTIC & PACIFIC GRILL ASSOCIATES, L.L.C., a
New York limited liability company having an address c/o The Xxxxx & Wollensky
Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Tenant").
WITNESSETH:
-----------
WHEREAS, Landlord and White & Xxxxxxxxx, Inc. ("W&W") entered into a
lease dated November 1, 1991 (the "Lease") of a portion of the ground floor and
basement space in the building (the "Building") located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx as more particularly described in the Lease (the "Demised
Premises"); and
WHEREAS, W&W assigned its interest in the Lease to Atlantic & Pacific
Grill Associates, L.P. ("A&P") pursuant to an Assignment and Assumption of Lease
dated September 9, 1992;
WHEREAS, A&P, on January 12, 1996 in accordance with the provisions
of Section 1006 of the New York Limited Liability Company Law, converted from a
limited partnership to Tenant;
WHEREAS, Tenant desires to hire and take 1,138 square feet of
additional space located on the basement level of the Building, as shown in the
shaded portion of the floor plan annexed hereto and made a part hereof as
Exhibit "A" (the "Additional Space"), and Landlord is agreeable thereto on the
terms and conditions hereinafter set forth; and
WHEREAS, Tenant desires to surrender possession of (1) 304 square
feet of space located in the basement level of the Building, as shown on the
cross-hatched portion of the floor plan annexed hereto as Exhibit A and (2) the
subbasement storage room currently occupied by Tenant (the "Surrendered Space"),
and Landlord is agreeable thereto on the terms and conditions hereinafter set
forth, and
WHEREAS, Landlord and Tenant desire to further modify and amend
certain terms and provisions of the Lease in the manner hereinafter set forth;
and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration the receipt and sufficiency
of which are hereby conclusively acknowledged, Landlord and Tenant hereby agree
as follows:
1. Effective as of December 1, 2001, (the "Effective Date"), the
Additional Space shall be added to and become part of the premises demised under
the Lease.
2. On the Effective Date, Tenant shall surrender possession of all of
Tenant's right, title and interest in and to the Surrendered Space only. Upon
such surrender, with respect to the Surrendered Space only, the Effective Date
shall be deemed to be the date set forth in the Lease as the expiration of the
term thereof.
3. Tenant covenants and warrants on behalf of Tenant and Tenant's
successors and assigns that Tenant has not done or suffered, and shall not do or
suffer, anything whereby the Surrendered Space or any fixture, equipment or
personality incorporated therein have been, or shall be, encumbered in any way
whatsoever. Tenant agrees that, on or before the Effective Date, Tenant shall
(i) remove from the Surrendered Space all personal property located in the
Surrendered Space, (ii) restore the Surrendered Space as required under the
Lease and (iii) deliver possession of the Surrendered Space to Landlord free and
clear of all occupants and rights of occupancy.
4. Tenant agrees to accept possession of the Additional Space in "as
is" and "where is" condition on the Effective Date, and Landlord shall not be
obligated to perform any work whatsoever to prepare the Additional Space or any
other portion of the Demised Premises for Tenant's occupancy thereof. All
materials, work, labor, fixtures and installations required for use of the
Additional Space and the operation of Tenants' business thereat shall be
promptly furnished and performed by Tenant, at Tenant's own cost and expense, in
accordance with the terms of the Lease, as modified by this Agreement.
5. Landlord, at it sole cost and expense, shall perform the work
described on Exhibit B attached hereto and made a part hereof ("Landlord's
Work") and shall notify Tenant, in writing, upon the completion of Landlord's
Work ("Landlord's Notice"). Landlord and Landlords' agents, contractors and
employees shall have the right, without notice to Tenant, to enter the
Additional Space as Landlord may deem necessary and desirable to perform
Landlord's Work; Landlord shall use reasonable efforts to perform Landlord's
work in a manner which does not unreasonably interfere with Tenant's normal
conduct of its business in the Additional Space, provided however, that Landlord
shall not be obligated to incur the cost of overtime or other premium rates to
perform the same.
6. No later than January 14, 2002, Tenant, at Tenant's sole cost and
expense, shall commence the performance of the work described on Exhibit C
attached hereto and made a part hereof ("Tenant's Work"). Subject to force
majeure, Tenant shall complete Tenant's Work within sixty (60) days after
commencement of Tenant's Work. Tenant hereby acknowledges and agrees that
Tenant's failure to commence and complete Tenant's Work within the time period
specified in the preceding sentence shall be deemed a default by Tenant in the
performance of its obligations under the Lease.
-2-
7. Effective as of the Effective Date, the Lease shall be deemed to
be modified as follows:
(a) All references in the Lease to the "demised premises" shall be
deemed to include the Additional Space and exclude the Surrendered Space.
(b) Throughout the term of the Lease, the Fixed Rent (as increased
and to be further increased pursuant to Article 41 of this Lease ) shall be
further increased by Twenty Nine Thousand One Hundred Ninety ($29,190) Dollars
per annum, payable in equal installments of $2,432.50 per month.
(c) Article 40 of the Lease shall provide that, with respect to that
portion of the Additional Space labeled "Pantry" on Exhibit A, Tenant shall
neither prepare nor xxxx any food whatsoever in such space and that Tenant's use
of such space shall be limited to warming food (through the use of suitable
restaurant equipment used solely to warm food) prior to serving such food to its
customers.
(d) Article 52 of the Lease shall include the following: "(f)
Commencing upon the delivery of Landlord's Notice and continuing throughout the
term of the Lease, (1) Tenant shall restrict the use of the service entrance
(specified in Exhibit A as "Service Entry") to deliveries of goods and equipment
and (2) Tenant's employees, invitees and customers shall be prohibited from
using the Service Entry and shall be required to enter the demised premises only
through the two exterior entrances leading directly to the demised premises.
Tenant shall notify all of its employees, invitees, suppliers and customers of
the restrictions provided in the paragraph and shall use best efforts to enforce
the compliance of these restrictions by such people. Tenant hereby acknowledges
and agrees that Tenant's failure to enforce the compliance of these restrictions
shall be deemed a default by Tenant in the performance of its obligations under
the Lease."
(e) The language found on the thirteenth to fifteenth lines of
Article 48(f) of the Lease providing "or if Xxxx Xxxxxxxx loses majority voting
control of Tenant" shall be deleted and replaced with the following language:
"or if Tenant shall cease to be owned or controlled by The Xxxxx & Wollensky
Restaurant Group, Inc., a Delaware corporation currently listed on NASDAQ."
(f) The following new Article 91 shall be added to the Lease:
"Guaranty". "Tenant shall, simultaneously with the delivery of this
Modification, deliver to Landlord the guaranty (the "Guaranty") of The Xxxxx &
Wollensky Restaurant Group, Inc., a Delaware corporation (the "Guarantor"),
which Guaranty shall be in the form attached hereto as Exhibit D."
(g) The following new Article 92 shall be added to the Lease:
"Additional Covenants. (a) In connection with Tenant's use of the demised
premises, Tenant shall, throughout the term of this Lease from and after the
Effective Date, be required to
-3-
remove grease from the demised premises only through switching of storage drums
utilized for that purpose within the demised premises. Tenant shall not remove
grease by piping from the demised premises, such removal being a material
default under this Lease. Notwithstanding the foregoing, Tenant may, no more
than twice in any twelve-month period during the term of this Lease, upon not
less than seven (7) days prior written notice to Landlord, remove non-cooking
grease by piping from two 75 gallon per minute grease interceptors, currently
located in Landlord's steam room which became operational in 2001.
(h) No later than January 14, 2002, Tenant shall purchase and
thereafter maintain an electric hot water pressure washer (Northstar) to remove
grease on 00xx Xxxxxx in the vicinity of the demised premises and to power wash
the sidewalks adjacent to the demised premises. Tenant covenants and agrees to
(1) power wash the sidewalks adjacent to the demised premises and service
entrance to the Building daily throughout the term of this Lease and after each
time that the grease barrels have been removed and (2) clean and disinfect the
service entrance to the Building at least daily, prior to noontime, throughout
the term of the Lease and after each food delivery to Tenant which warrants
cleaning, as reasonably determined by Landlord, within thirty (30) minutes of
Landlord's request.
(i) Upon the completion of Landlord's Work (as defined in this
Modification), if Landlord determines, in its sole discretion, that an odor
problem persists in the Building, Tenant, shall promptly, and with reasonable
efforts, cooperate with Landlord to cure such odor problem and explore the
appropriateness of having garbage removed from the demised premises seven days
per week (rather than six days)."
8. In compliance with the provisions of Article 86(a) of the Lease,
upon the execution and delivery of this Modification, Tenant has executed and
delivered to Landlord a UCC-1 financing statement evidencing the security
interest of Landlord as described in said Article 86(a). Tenant acknowledges
that, in compliance with the provisions of Article 86(a) of the Lease, it shall,
at it sole cost and expense, throughout the term of the Lease or any renewal
thereof, promptly execute all confirmatory or continuation statements required
to perfect such security interest of Landlord under all applicable law.
9. In compliance with the provisions of Article 31 and 41 of the
Lease, upon the execution and delivery of this Modification, Tenant shall
deliver to Landlord an irrevocable letter of credit drawn upon a bank acceptable
to Landlord, in the amount of $50,000, which letter of credit shall be in the
form attached as Exhibit E.
10. Tenant shall pay to Stroock & Stroock & Xxxxx LLP, Landlord's
counsel, upon execution and delivery of this Modification, the expenses incurred
by Landlord since May 2001 for the negotiation, preparation and execution of
this Modification, in the amount of $15,000.
-4-
11. As expressly modified or amended by this Modification, all of the
term, covenants and conditions of the Lease are hereby ratified and confirmed
and, except insofar as reference to the contrary is made in any such instrument,
all references to the "Lease" in any future correspondence or notice shall be
capitalized terms and other terms not otherwise defined herein shall have the
meanings respectively ascribed to them in the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Modification of Lease as of the date first above written.
XXXXXXX TENANTS
CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Xxxxxxxx Xxxxxx, President
ATLANTIC & PACIFIC GRILL
ASSOCIATES, L.L.C.
By: The Xxxxx & Wollensky Restaurant
Group, Inc., its sole member
By: /s/Xxxx Xxxxxx
-------------------
Xxxx Xxxxxx, Secretary/Treasurer
-5-
