<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
_________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 3, 1995
------------
ELXSI CORPORATION
--------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware
-------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
0-11877 77-0151523
----------------------- ----------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
4209 Vineland Road, Suite J-1, Orlando, Florida 32811
----------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
(407) 849-1090
----------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
PAGE
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On July 3, 1995, ELXSI, a California Corporation ("ELXSI") and a
wholly owned subsidiary of the Registrant, completed an
acquisition of Abdow's Family Restaurants from Abdow Corporation
of Springfield, MA, for a price of approximately $3,800,000
including estimated expenses of approximately $300,000. The
transaction, which includes the leasing of 16 restaurant sites
and the purchase of associated assets located in western
Massachusetts and central Connecticut, brings the total number of
restaurants operated by ELXSI to 59. ELXSI intends to convert
most of the Abdow's locations into Bickford's over the next 12 to
18 months.
The transaction was financed by an increase in ELXSI's existing
line of credit with Bank of America Illinois, which recently was
extended to June 30, 1997. The total available credit on July 3,
1995 was increased to $15,840,000. The minimum monthly
reductions in available credit were increased from $220,000 per
month to $280,000 per month from July to December 1995 and
$3,330,000 annually thereafter.
ELXSI Chairman and CEO Alexander M. Milley commented, "The
acquisition of the Abdow's restaurants is a tremendous
opportunity to strengthen Bickford's position in New England.
Abdow's has superior locations and an excellent reputation in its
market, and we welcome the Abdow's employees into our company."
Mr. Milley continued, "The transaction is an excellent one for
ELXSI's shareholders. The Abdow's locations have a higher
average sales volume than the Bickford's locations, while the
Bickford's restaurants have higher average profit margins.
Therefore, our goal is to maintain the sales levels in each new
location while improving average margins, as we successfully did
with the conversions of five Howard Johnson's Restaurants
acquired in 1991. Achieving this goal will produce a significant
positive impact on future earnings." Mr. Milley went on to add
that even before the conversions are completed, he anticipates
the acquisition to positively impact earnings per share.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial statements of Business Acquired.
It is not possible to file the required audited financial
statements, if any, at the time of the filing of this Current
Report on Form 8-K. Based on information currently available to
ELXSI and the Registrant, this acquisition would not constitute a
"significant business combination" within the meaning of
applicable Securities and Exchange Commission rules. However, if
it is determined that certain audited financial information is
required, it will be filed under cover of Form 8 as soon as
practicable, but not later than September 16, 1995.
(b) Pro Forma Financial Information.
It is not possible to file the required audited financial
statements, if any, at the time of the filing of this Current
Report on Form 8-K. Based on information currently available to
ELXSI and the Registrant, this acquisition would not constitute a
"significant business combination" within the meaning of
applicable Securities and Exchange Commission rules. However, if
it is determined that certain audited financial information is
required, it will be filed under cover of Form 8 as soon as
practicable, but not later than September 16, 1995.
(c) Exhibits.
Exhibit 2.8 Purchase and Sale Agreement among Abdow
Corporation, the Bickford's Family Restaurant
division of ELXSI, George T. Abdow and Ronald J.
Abdow dated as of May 31, 1995.
Exhibit 10.19 Fifth Amendment to Amended and Restated Loan and
Security Agreement between ELXSI and Bank of
America Illinois dated as of July 3, 1995.
PAGE
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
ELXSI CORPORATION
-------------------------
(Registrant)
Date: July 18, 1995 /s/ Thomas R. Druggish
---------------------------
Thomas R. Druggish, Vice
President Finance, Treasurer and
Corporate Secretary (Chief
Accounting Officer)
PAGE
<PAGE>
INDEX TO EXHIBITS
Exhibit 2.8 Purchase and Sale Agreement among Abdow
Corporation, the Bickford's Family
Restaurant division of ELXSI, George T.
Abdow and Ronald J. Abdow dated as of May
31, 1995.
Exhibit 10.19 Fifth Amendment to Amended and Restated
Loan and Security Agreement between ELXSI
and Bank of America Illinois dated as of
July 3, 1995.
<PAGE>
Exhibit 2.8
-----------
PURCHASE AND SALE AGREEMENT
AGREEMENT, dated as of May 31, 1995 (this "Agreement")
among ABDOW CORPORATION, a Massachusetts corporation with a
principal place of business at 595 Cottage Street, Springfield,
Massachusetts 01101-0329, hereinafter referred to as "Seller",
and the BICKFORD'S FAMILY RESTAURANTS division of ELXSI, a
California corporation with a usual place of business at 1330
Soldier's Field Road, Boston, Massachusetts 02135, hereinafter
referred to as "Buyer", GEORGE T. ABDOW, of Longmeadow,
Massachusetts, hereinafter referred to as "George" and RONALD J.
ABDOW of said Longmeadow, hereinafter referred to as "Ronald".
1. Sale of Assets.
(a) On the Closing Date (as defined in Section 14),
the Seller shall sell, transfer and assign to Buyer and Buyer
shall purchase from Seller upon the terms and conditions set
forth in this Agreement, the following, free and clear of all
liens, defects in title, covenants, claims of third parties,
security interests, mortgages, pledges, charges and similar
encumbrances("Liens"):
All of the Seller's right, title and interest in and
to all furniture, fixtures, equipment and other personal property
and leasehold improvements owned by Seller and located at any of
the sixteen (16) restaurant locations (the "Restaurant
Locations") listed on Exhibit "A" attached hereto and made a part
hereof, and all other assets of the Seller used in the conduct of
its restaurant business at the Restaurant Locations, including
but not limited to maintenance vehicles, useable food and paper
goods inventory located at any of the Restaurant Locations,
dishes, glasses, utensils, uniforms, forms, office supplies,
retail goods sold at cashier stands, inventory used in the
repairs to the heating, ventilating, air conditioning and
plumbing systems, training, marketing and promotional materials,
recipes, menus, unit sales and controllable profit information,
all cash on hand in the cash drawers at the Restaurant Locations
(which shall total approximately $900.00 at each Restaurant
Location) (the "Cash On-Hand"), any and all prepaid expenses and
utility and other deposits owned by the Seller in connection with
the operation of the Restaurant Locations which will inure to the
benefit of the Buyer, any and all purchase orders and commitments
of the Seller for the purchase of food, beverages, operating
supplies, dishes, glasses, utensils, uniforms and paper goods
(excluding those that are to be provided by Seller's existing
commissary), any and all contracts relating to the operation of
the Restaurant Locations in the ordinary course of business that
are listed on Exhibit "B" attached hereto and made a part hereof,
any and all permits, licenses and other approvals relating to the
operation of the Restaurant Locations that are assignable by
Seller, to the extent permitted by applicable law, copies of all
personnel records of employees hired by the Buyer (with all
personal and gratuitous comments purged) and all other
miscellaneous property and information exclusively pertaining to
the Restaurant Locations and their operation. The foregoing are
hereinafter referred to as the "Purchased Assets" and are more
particularly described on Exhibit "C" attached hereto and made a
part hereof.
(b) At the Closing the Seller shall also license to
Buyer, on a perpetual, royalty-free basis, all rights of Seller
in, to and under: (A) the stylized "Abdow's" registered United
States trademark, (B) the unregistered "Abdow's" and "Abdow's
Family Restaurants" names and marks, and (C) all goodwill
associated with the foregoing trademark names and marks (the
"Trademarks"), such license to be: (i) limited in scope as to the
Buyer for use in connection with any of its restaurant business
(present or future, and including any other restaurants owned or
operated by the Buyer) throughout North America and (ii) as so
limited, exclusive to the Buyer, except as otherwise provided in
Section 5 of this Agreement. The foregoing license is hereafter
referred to as the "Trademark License", and the Trademark License
shall be evidenced and effected under a Trademark License
Agreement in the form of Exhibit "D" attached hereto and made
part hereof (the "Trademark License Agreement").
(c) It is acknowledged and agreed by the parties
hereto that the Buyer is not assuming or incurring any debts,
liabilities or obligations of the Seller under this Agreement,
with respect to the Restaurant Locations or otherwise, other than
those, if any, that may arise under any purchase orders,
commitments, contracts, permits, licenses or approvals included
in the Purchased Assets. Accordingly, the Seller shall: (i) take
any and all actions which may be necessary in order to prevent
any person or entity (including, without limitation, taxing and
other governmental authorities) from having any recourse against
the Buyer or any of the Purchased Assets with respect to all such
debts, liabilities and obligations, and (ii) shall indemnify and
hold harmless the Buyer, and its directors, officers, employees,
stockholder and affiliates, from and against any and all Losses,
(as defined in Section 15) directly or indirectly incurred,
suffered, sustained or required to be paid by any of the
foregoing based upon or arising out of any such debts,
liabilities or obligations.
2. Purchase Price and Payment.
(a) The Seller and Buyer agree that the purchase
price for all of the Purchased Assets and the Trademark License
shall be Three Million Five Hundred Thousand ($3,500,000.00)
Dollars: (i) plus an amount equal to all the Cash-On-Hand and
Seller's prepaid expenses and deposits which are included among
the Purchased Assets, (ii) plus an amount equal to the Seller's
cost of all its useable food and paper goods inventory located at
any of the Restaurant Locations on the Closing Date as per the
price list furnished to Buyer by Seller prior to the date hereof,
(iii) minus the amount of the accrued but untaken vacation pay of
all of Seller's employees hired by Buyer on or as of the Closing
Date, and (iv) minus the amount of Seller's reimbursement for
Site Assessments provided for in Section 5(a), to the extent not
then reimbursed (v) plus or minus (as appropriate) such net
amount as may be appropriate under the circumstances to equitably
pro-rate as between the Buyer and Seller any utilities, real
estate taxes or other charges in respect of Restaurant Locations
that may either (x) have been paid by the Seller in whole or in
part in relation to a period after the Closing Date or (y) be
required to be paid by the Buyer in whole or in part in relation
to a period before the Closing Date (the "Purchase Price"). It
is understood and agreed that certain charges (such as utilities)
described in the foregoing clause (v) that may not be
definitively ascertainable at the Closing shall be adjusted
between the parties and paid or reimbursed as appropriate after
the Closing Date.
(b) Buyer shall pay the Seller the total Purchase
Price (less (x) the amount for inventory provided in the
foregoing subsection 2(a)(ii) and (y) the escrow deposit provided
for in subparagraph (d) and any interest earned thereon) in cash
or its equivalent to Seller on the Closing Date.
(c) The amount of the Cash On-Hand and the count of
the Seller's useable food and paper goods inventory located at
the Restaurant Locations on the Closing Date shall be determined
by the taking of a physical inventory jointly by representatives
of the Buyer and Seller on the night before the Closing Date.
The pricing of such inventory shall be established in accordance
with Seller's recent past practices as set forth in the Seller's
price list previously delivered to Buyer. Any inventory items
the cost of which the Buyer in good faith determines are in
excess of those shown on said price list may be removed by Buyer
from the Purchased Assets. Payment for such inventory included
in the Purchased Assets shall be made by Buyer to Seller in cash
or its equivalent within 21 days after the Closing Date.
(d) Upon signing this Agreement, the Buyer shall give
the Seller a deposit in the amount of Two Hundred Thousand
($200,000.00) Dollars to be held by the law firm of Doherty,
Wallace, Pillsbury and Murphy, P.C. as escrowee of said deposit
(hereinafter "Escrow Agent"). Said deposit shall be invested in
an interest-bearing account. The Buyer shall be entitled to all
interest earned on the deposit through the Closing Date in
connection with the purchase of the Purchased Assets by the Buyer
or if the Buyer is entitled to the return of the deposit pursuant
to this Agreement. The entire deposit, including any interest
earned thereon, shall be applied towards the Purchase Price on
the Closing Date.
3. Allocation of Purchase Price.
The Seller and Buyer agree that the total Purchase
Price for all of the Purchased Assets and the Trademark License
shall be allocated among the Purchased Assets and the Trademark
License as follows:
Leasehold Improvements: $ 900,000.00
Furniture and Fixtures, Equipment
and other Purchased Assets (exclusive
of food and paper Goods Inventory
and Cash On-Hand): $1,600,000.00
Cash On-Hand: Amount thereof
Food and Paper Goods Inventory: Determined per
Section 2
Trademark License, goodwill and
other intangibles: $1,000,000.00
The purchase price of the Inventory shall be the
amount determined under Section 2(c) above.
4. Leases.
The Seller and Buyer agree to enter into leases or
subleases for each of the Restaurant Locations in accordance with
the rental and option terms all as more particularly set forth in
Exhibit "E" attached hereto and made a part hereof. With respect
to the locations owned by an affiliated party of the Seller, the
affiliated party as Landlord and the Buyer as Tenant shall enter
into a lease, the form of which marked Exhibit "F" is made a part
hereof. With respect to the Restaurant Locations leased by the
Seller, the Seller as sublandlord and the Buyer as subtenant
agree to enter into a sublease, the form of which marked Exhibit
"G" is attached hereto and made a part hereof, with such changes
thereto as may be required or requested by the Seller's landlord
that are reasonably acceptable to the Buyer. The leases and
subleases contemplated by this Section 4 are hereinafter
collectively referred to as the "Leases".
5. Certain Contingencies.
The obligations of the Buyer and Seller to consummate
the purchase and sale of the Purchased Assets, the Trademark
License, the Leases and the other closing transactions
contemplated hereby (the "Overall Transaction") are subject to
the following conditions precedent (in addition to the
documentary and other conditions to such obligations set forth
elsewhere (including Sections 11 and 12 of) in this Agreement":
PAGE
<PAGE>
(a) The Buyer shall not be obligated to consummate
the Overall Transaction in respect of any Restaurant Location:
(i) as to which there exists any non-compliance with
respect to any applicable Environmental Law or
any applicable Occupational Health and Safety Law
(as hereinafter defined);
(ii) that is subject to any judicial or administrative
proceeding alleging the violation of any
Environmental Law or any Occupational Health and
Safety Law;
(iii) as to which there has been received any notice or
inquiry: (A) that any owner or operator thereof
may be in violation of any Environmental Law or
any Occupational Health and Safety Law,
(B) threatening the commencement of any
proceeding relating to allegedly unlawful, unsafe
or unhealthy conditions, or (C) alleging that any
owner or operator thereof is or may be
responsible for any response, cleanup or
corrective action (including but not limited to
any remedial investigation/feasibility studies
under any Environmental Law or any Occupational
Safety and Health Law);
(iv) that is the subject of any federal, state or
local investigation evaluating whether any
investigation, remedial action or other response
is needed to respond to: (A) a spillage, disposal
or release or threatened release into the
environment or any Hazardous Material (as
hereinafter defined) or other hazardous, toxic or
dangerous waste, substance or constituent, or
other substance, or (B) any allegedly unsafe or
unhealthful condition;
(v) as to which there has been filed any notice under
or relating to any Environmental Law or any
Occupational Health and Safety Law indicating or
reporting: (A) any past or present spillage,
disposal or release into the environment of, or
treatment, storage or disposal of, any Hazardous
Material or other hazardous, toxic or dangerous
waste, substance or constituent, or other
substance, or (B) any potentially unsafe or
unhealthful condition, or as to which there
exists a basis for such a notice (whether or not
actually filed); or
(vi) as to which any owner or operator thereof has any
contingent liability in connection with: (A) any
actual or potential spillage, disposal or release
into the environment of, or otherwise with
respect to, any Hazardous Material or other
hazardous, toxic or dangerous waste, substance or
constituent, or other substance, whether on the
Restaurant Location premises or on any other
premises, or (B) any unsafe or unhealthful
condition.
For purposes of this Agreement, the term:
"Environmental Law" means the federal Clean Air Act of
1970, as amended, the federal Clean Water Act, as amended, the
federal Resource Conservation and Recovery Act of 1976, as
amended, the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, any so-called
"Superfund" or "Superlien" law, the federal Toxic Substances
Control Act, as amended, any other federal state, or local
statute, law, ordinance, code, rule, regulation, order or decree
or other legal, judicial or regulatory requirement regulating,
relating to, or imposing liability or standards of conduct
(including, but not limited to, permit requirements, emission and
effluent restrictions, nuisance laws, ordinances, rules and
standards of conduct and other requirements relating to
manufacturing, processing, generation, distribution, use,
treatment, storage, disposal, clean-up, transport or handling)
concerning any Hazardous Materials or any hazardous, toxic or
dangerous waste, substance or constituent, or any noise, odor,
waste, radiation, pollutant or contaminant or other substance,
whether solid, liquid or gas, in each case as from time to time
in effect.
"Hazardous Materials" means any toxic substance,
hazardous substance, hazardous material, hazardous chemical or
hazardous waste defined or qualifying as such in (or for the
purposes of) any Environmental Law (including, without
limitation, Massachusetts General Laws Chapter 21E), or any
pollutant or contaminant, and shall also include, but not be
limited to, petroleum, including crude oil and any fraction
thereof which is liquid at standard conditions of temperature or
pressure (60 degrees fahrenheit and 14.7 pounds per square inch
absolute), any radioactive material, including but not limited
to, any source, special nuclear or by-product material as defined
at 42 U.S.C. Section 2011 et seq., as amended or hereafter
amended, polychlorinated biphenyls and asbestos in any form or
condition.
"Occupational Health and Safety Law" means the federal
Occupational Safety and Health Act of 1970, as amended, and any
other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree or other legal, judicial or
regulatory requirement regulating, relating to, or imposing
liability or standards of conduct concerning employee health
and/or safety.
Buyer has ordered and commenced (or promptly hereafter
will order and commence) environmental audits and site
assessments with respect to each of the Restaurant Locations
("Site Assessments") for the purposes of determining whether any
of the conditions or circumstances described above in this
Section 5(a) (each, an "Environmental Condition") exists. In the
event that any Site Assessment or any tests or work done in
connection therewith indicate the existence of any Environmental
Condition at any Restaurant Location, Buyer shall by June 15,
1995 (if practicable, or if not, promptly thereafter) notify the
Seller thereof, who shall have the right, but not the obligation,
to attempt the cure thereof. The cost of the Site Assessments
(and any related tests and work done) shall be borne by Buyer and
Seller shall reimburse Buyer in the amount of $10,000.00 for the
cost of such Site Assessments, tests and work.
(b) The Buyer shall not be obligated to consummate
the Overall Transaction in respect of any Restaurant Location as
to which there exists, with respect to the building structures
and other improvements at such Restaurant Locations (the
"Buildings and Related Improvements") (A) any (x) structural,
mechanical or operating defect or weakness, any unreasonably
unsafe or unsound condition, or (y) failure to comply with any
federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree or other legal, judicial or
regulatory requirement (including, without limitation, any state
or local fire, electrical, plumbing or building code
requirements), or (z) failure to comply with any fire,
electrical, plumbing or building standards generally accepted by
insurance companies operating in the area of the Restaurant
Locations, concerning any of the following:
(i) the structure or integrity of the Buildings
and Related Improvements, including without
limitation the foundations, walls, roofs,
floors and support; or
(ii) any of the mechanical systems servicing the
Buildings and Related Improvements,
including without limitation all HVAC,
plumbing and electrical systems; or
(iii) water and sewer systems servicing the
Buildings and Related Improvements;
or (B) any of the following conditions:
(iv) the presence of wood boring insects and/or
damage caused thereby;
(v) the presence of asbestos in the Buildings
and Related Improvements; and
PAGE
<PAGE>
(vi) any other matter affecting or relating to
the physical condition of the Buildings and
Related Improvements.
Any such defect, weakness, failure to comply or condition is
hereinafter referred to as a "Building or Related Improvements
Condition").
The Seller hereby represents and warrants to the Buyer
that, to the best of its knowledge, there are no Building or
Related Improvements Conditions with respect to any of the
Restaurant Locations, except as set forth in Exhibit "H" attached
hereto and made a part hereof (the "Disclosed Building or Related
Improvements Conditions"). The Buyer has obtained or promptly
hereafter shall obtain such engineering reports ("Engineering
Reports") (at the Buyer's sole cost and expense) with respect to
the Disclosed Building and Related Improvements Conditions as it
shall deem to be reasonable under the circumstances. The Seller
and Buyer agree that the Seller shall have the right, but not
have the obligation, to repair any defects identified in Exhibit
H or by the Engineering Reports, provided the Seller promptly and
diligently takes such action.
(c) The Buyer shall not be obligated to consummate
the Overall Transaction in respect of any Restaurant Location as
to which the Buyer is unable to acquire all governmental permits,
licenses and other approvals necessary for the Buyer to operate
its restaurant business at the Restaurant Locations in
substantially the same manner as currently being operated by the
Seller. The Buyer agrees to attempt to obtain the governmental
approvals diligently, conscientiously and in good faith. The
Seller agrees to cooperate fully with the Buyer in connection
with the Buyer's attempt to obtain the governmental approvals.
(d) The Buyer shall not be obligated to consummate
the Overall Transaction in respect of any Restaurant Location as
to which the Seller is unable to secure, at no cost to Buyer: (i)
releases of all security interests and other Liens filed or
recorded against, or otherwise in existence with respect to, the
Purchased Assets there located(including, without limitation,
releases of all property retention, liquidation and other
priority rights with respect to any Purchased Assets in favor of
any mortgagee of Seller (or affiliate of Seller), any landlord of
Seller (or other fee title owner), or any mortgagee of any
landlord of Seller, (or other fee title owner), (ii) such
consents and approvals as may be necessary from any Restaurant
Location landlord or overlandlord, or any mortgagee of any such
landlord or overlandlord, in order to put the Buyer in possession
and control of such Restaurant Location and the Purchased Assets
there located pursuant to the applicable Lease, (iii) such
consents and approvals as may be necessary from any Restaurant
Location landlord or overlandlord, or any mortgagee of any such
landlord or overlandlord, in order to allow the Buyer's lending
bank(s) to obtain and/or record a leasehold mortgage in respect
of the applicable Lease and a security agreement and Uniform
Commercial Code financing statements in respect of Purchased
Assets located at such Restaurant Location, and (iv) such
non-disturbance, attornment, estoppel and/or other agreements or
certificates, and such modifications to the applicable Lease,
from any Restaurant Location landlord or overlandlord, or any
mortgagee of any such landlord or overlandlord, as the Buyer's
lending bank(s) may require. Seller shall deliver the foregoing
on or before the date of Closing and may use any part of the
Purchase Price in order to obtain the foregoing.
(e) It is understood and agreed that the Buyer will
have a title search performed for each of the Restaurant
Locations in order to determine that the Seller is able to give
the Buyer marketable leasehold title to each of the Restaurant
Locations, subject to the mortgages on the fee title thereto
existing on the date of this Agreement. In the event that any
such title search establishes one or more defects in the title
which prevents the Seller from giving marketable leasehold title
to the Restaurant Locations (subject to such mortgages) or
marketable title to the Purchased Assets to the Buyer, then the
Buyer shall give written notice of such defect to the Seller.
Seller shall have the right, but not the obligation, to take the
appropriate steps to cure such title defect provided it shall do
so promptly and diligently. It is understood and agreed that
such title searches shall be performed diligently and
conscientiously and at the expense of the Buyer.
(f) In the event that one or more of the
contingencies expressed above in this Section 5 is not satisfied
or is not in the process of being satisfied for any one or more
Restaurant Locations by the later to occur of the dates specified
in Sections 14(a)(i)(y) and 14(a)(ii), then the Buyer shall have
the option to remove such Restaurant Location(s) from the terms
of this Agreement and the Purchase Price shall be reduced by an
amount mutually agreed upon by Buyer and Seller. In the event
that the parties are unable to agree on the amount of such
reduction, then such dispute shall be promptly referred to
arbitration pursuant to Section 17 of this Agreement. In the
event that more than four Restaurant Locations are removed from
this Agreement as aforesaid, then the Buyer or Seller shall have
the option to terminate this Agreement by giving written notice
of such termination to the other party on or before the Date of
Closing. In the event that either party gives such written notice
of termination in accordance with the provisions of this
Agreement on or before the date of closing, then this Agreement
shall terminate and be of no further effect and the deposit with
the interest earned thereon shall be paid to the Buyer by the
Escrow Agent. After the Closing Date, the Seller shall have the
right to use the Trademarks at and for any Restaurant Location
removed from the terms of this Agreement. Termination of this
Agreement under this Section 5(f) shall also automatically and
irrevocably terminate all rights and obligations hereunder
(including any claim by any party hereto based upon any actual or
alleged breach of any representation, warranty, covenant or
agreement herein by another party hereto) but excluding any claim
by any party hereto based upon any actual or alleged breach by
another party hereto of Section 10(c).
6. Bulk Sales.
The parties hereto waive compliance with the
provisions of any bulk sales law applicable to the transaction
contemplated herein; provided, however, that any loss,
liability,obligation or costs whatsoever, directly or indirectly
suffered by Buyer as a result of failure to comply therewith
shall be borne by the Seller. In the event that any of the
creditors of the Seller shall make any claim against the Buyer or
against the Purchased Assets pursuant to the Massachusetts Bulk
Sales Law, Buyer may pay creditors of Seller after giving Seller
fifteen (15) days prior written notice of such claim, or such
earlier date as may be necessary or advisable to prevent any
adverse action being taken against Buyer or any of the Purchased
Assets, and then, at Buyer's election, recover such amount from
the Seller. In the event of such payment by the Buyer, the
Seller, or in the event of default by the Seller,George and
Ronald, shall fully reimburse the Buyer forthwith plus interest
at the prime rate of interest as published in the Wall Street
Journal on the date of such payment plus four percent (4%) on the
amount paid by the Buyer to such creditor of the Seller.
6.a. Seller's Employees.
The Buyer will use its reasonable efforts to hire all
of Seller's restaurant employees who work at any of the
Restaurant Locations including but not limited to managers,
cooks, waiters and waitresses. In connection therewith, the
Buyer agrees that prior to Closing it will take applications from
all of said restaurant employees of the Seller for employment
commencing on the date of Closing. Any such employee employed by
Buyer will be entitled to credit for his or her years of service
with the Seller for purposes of determining the benefits to which
such employee may be entitled from the Buyer(including but not
limited to vacation benefits). In addition, the Buyer agrees
that prior to Closing it will interview all other employees of
the Seller who desire to be employed by the Buyer after the date
of Closing. The Buyer will be given reasonable access to the
Seller's employees prior to Closing for the purpose of
interviewing such employees. It is understood and agreed that
the Seller shall be responsible for all entitlements and
obligations accrued to Seller's employees prior to the date of
Closing (including, without limitation, those arising under any
Plan (as defined in Section 7(p)) and that Buyer shall have no
liability or obligation therefor (except for accrued vacation pay
applied to reduce the Purchase Price). The Seller agrees that it
will indemnify and hold Buyer harmless from and against any
Losses directly or indirectly incurred, sustained or required to
be paid by Buyer based upon or arising out of any claims of
employees or former employees of Seller arising out of (x)the
Seller's employment of any such employee or former employee prior
to the date of Closing or (y) any Plan. The Buyer shall fully
assume any and all obligations arising after the date of Closing
with respect to former employees of the Seller employed by the
Buyer after the date of Closing and Seller shall have no
liability or obligation therefor. The Buyer agrees that it will
indemnify and hold Seller harmless from and against any Losses
directly or indirectly incurred, sustained or required to be paid
by Seller based upon or arising out of any such claims from any
of the Seller's former employees arising out of employment by the
Buyer after the date of Closing or the Seller's furnishing or
transferring any personnel files of such employees to the Buyer.
The indemnification provided for hereunder will include all
expenses incurred by the Seller or the Buyer (as the case may be)
including reasonable attorneys fees attributable to any such
claim.
7. Representations and Warranties of Seller.
The Seller represents, warrants, covenants and agrees
with Buyer as follows:
(a) The Seller has all requisite power and authority
to own, operate and lease the Restaurant Locations and to carry
on its business as now being conducted at the Restaurant
Locations.
(b) All tax returns required to be filed by Seller,
or otherwise in respect of the Restaurant Locations, in any
jurisdiction have in fact been timely filed and are complete and
correct in all material respects, and all taxes, assessments,
fees and other governmental charges upon or assessed against the
Seller, or otherwise in respect of the Restaurant Locations,
pursuant to such tax returns, and all other assessments, notices
of tax deficiencies,penalties and interest, if any, have been or
will be paid prior to the date of Closing. The Seller has not
executed or filed with the Internal Revenue Service or any other
taxing authority any agreement or other document extending or
having the effect of extending the statute of limitations or
period of assessments or collection of any taxes. The Seller is
nota party to any pending action or proceeding nor is any action
or proceeding threatened by any governmental authority for
assessment or collection of taxes and no claims for assessment or
collection of taxes has been asserted against the Seller.
(c) To the best knowledge of the Seller, the
Restaurant Locations are not in violation of any applicable law,
ordinance, regulation, order or requirement of any governmental
authority relating in any manner whatsoever to the business of
the Seller or the Restaurant Locations (including, without
limitation, any Environmental Law and any Occupational Health and
Safety Law).
(d) All of the Purchased Assets shall be free and
clear of all Liens and other encumbrances on the date of Closing,
and the Seller has good title to all the Purchased Assets.
(e) The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts.
(f) The Seller has the power and authority to
execute, deliver and perform this Agreement and the other
instruments, agreements, certificates and other documents
required to be delivered by it to the Buyer on the date of
Closing or otherwise in connection with this Agreement.
(g) This Agreement has been duly executed and
delivered by the Seller,Ronald and George (the "Seller Parties").
The documents to be delivered by any Seller Party pursuant to or
in connection with this Agreement will be duly executed and
delivered by the Seller Parties party thereto. This Agreement
is, and any documents delivered pursuant hereto or in connection
with this Agreement will be, the legal, valid and binding
obligations of the Seller Parties party thereto, enforceable
against such Seller Parties in accordance with their respective
terms.
(h) Neither the execution or delivery of this
Agreement or any of documents delivered pursuant hereto or in
connection herewith, nor the performance by the Seller Parties of
any of the transactions contemplated hereby or thereby,
conflicts with, or constitutes a breach of or a default under
(i) any material law, rule, or regulation or any judgment, order,
writ, injunction or decree of any court applicable to any of the
Seller Parties, Restaurant Locations, Purchased Assets, or
Trademarks (ii) any applicable rule or regulation of any
administrative agency or other governmental authority applicable
to any of the Seller Parties, Restaurant Locations, Purchased
Assets, or Trademarks (iii) the Articles of Organization or
By-Laws of the Seller or (iv) any material agreement,
indenture,instrument or contract to which the Seller is now a
party or by which it is bound.
(i) No consent or approval of any person is required
in connection with the execution and delivery of this Agreement
or of any of the other documents delivered pursuant hereto or in
connection herewith by the Seller Parties or for the consummation
by the Seller Parties of the transactions contemplated hereby or
thereby except for such consents and approvals as are referred to
in Sections 5(c) and 5(d) hereof.
(j) There are no disputes, claims, actions, suits or
proceedings, arbitrations or investigations, either
administrative or judicial, pending or, to the best knowledge of
the Seller, threatened or contemplated, nor is there any basis
therefor, against or affecting the Seller, any Restaurant
Location or any of the Purchased Assets or Trademarks, at law or
inequity or otherwise, before or by any court or governmental
agency or body, domestic or foreign, or before any arbitrator of
any kind.
(k) The Seller is not a party to any contracts,
agreements or understandings, whether written or oral, which
relate to or affect the business or use of any of the Restaurant
Locations, Trademarks or Purchased Assets or by which any of the
Restaurant Locations, Trademarks or Purchased Assets may be bound
that will according to the terms thereof, be binding upon the
Buyer as purchaser of the Purchased Assets,including without
limitation any contracts, agreements or understandings whether
written or oral.
(l) As of the date of Closing all obligations (except
for vacation pay applied to reduce the Purchase Price) of the
Seller to any of the Seller's employees who are then currently
working, or who had worked, at any of the Restaurant Locations
shall be fully and completely satisfied by the Seller, including
without limitation the payment of all amounts due such employees.
(m) Seller has good leasehold title to the Restaurant
Locations and good and marketable title to the Purchased Assets
and the Trademarks, free and clear of all Liens other than: (i)
Liens which do not affect the marketability of the title to such
assets and do not materially detract from the value of such
assets or the use or enjoyment thereof in the ordinary course of
business, and (ii) Liens which will be released or discharged
(including of record, if appropriate) on or prior to the Closing
Date. To the best of the Seller's knowledge, the Purchased
Assets: (A) are in good operating condition,order and repair
(subject to such ordinary wear and tear as in the aggregate does
not have a material adverse effect upon the businesses, assets,
revenues, condition (financial or otherwise) or prospects of the
Restaurant Locations), (B) are capable of being used for the
purposes for which they are presently being used without the need
for repair or replacement except in the ordinary course of
business, (C) constitute (together with the properties to be
subject to the Leases and Seller's commissary operations) all of
the tangible assets that are used in the operations of, and are
necessary to operate, the Restaurant Locations as family
restaurants, and (D) have not been affected by any fire,
accident, act of God, or any other casualty that materially and
adversely affects the businesses, assets, revenues, condition
(financial or otherwise) or prospects of the Restaurant
Locations. Seller has not received any notice of any pending or
threatened condemnation or eminent domain proceeding in respect
of any Restaurant Location.
(n) To the best knowledge of Seller, no third party
has any rights in or to the Trademarks nor does there exist any
infringements thereof. There is no pending or, to the best
knowledge of Seller, threatened or contemplated action, suit,
proceeding or claim by others challenging the validity or scope
of the Trademarks or the Seller's rights thereto or claiming that
the Trademarks infringe upon or otherwise violate the
intellectual property rights of others.
(o) None of the employees of Seller is covered by
any collective bargaining agreement as an employee of the Seller.
Seller has complied in all material respects with all applicable
laws, statutes, ordinances and rules and regulations relating to
the employment of labor, including, without limitation, those
relating to wages, hours, unfair labor practices,discrimination
and the payment of social security and similar taxes. Seller has
not engaged in any unfair labor practice. There are no complaints
against Seller pending or, to the best knowledge of Seller,
threatened or contemplated before the U.S. National Labor
Relations Board or any similar state or local governmental
authority. There are no representative elections, arbitration
proceedings, labor strikes, slow-downs or stoppages, grievances
or other labor troubles pending or, to the best knowledge of
Seller, threatened or contemplated with respect to the employees
of Seller. To the best of Seller's knowledge, all information
provided by Seller to Buyer in connection with its employees, and
their salaries and wages and other matters, is correct and
complete in all material respects.
(p) As used in this Agreement, the term "Plan" shall
mean any "employee benefit plan" (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), all bonus, deferred compensation, incentive
compensation,excess benefit, stock, stock option, severance,
termination pay, change in control and death benefit plans,
contracts, programs, agreements or arrangements of any kind and
all material fringe benefit plans (including but not limited to
those providing medical, dental, vision,disability, life
insurance and vacation benefits) currently maintained, sponsored,
administered or contributed to by Seller, or under which Seller
has any present or future obligation or liability. To the best
of Seller's knowledge, each of the Seller's Plans has been
maintained and administered in all material respects in
compliance with the requirements of ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"), or if compliance
is not affirmatively required, then not in violation of ERISA or
the Code, and with their terms(except that in any case in which a
Plan is currently required to comply with a provision of ERISA or
the Code, but is yet required to be amended to reflect such
provision, it has been administered in accordance with such
provision). Seller has no Plans other than a "401(k)"Plan, a
Vacation Pay Plan and a medical Plan, the relevant documents of
which Seller has delivered to Buyer. Neither the Seller nor any
other employer (an "Affiliate") that is, or was at any time after
September 2, 1974, together with the Seller, treated as a "single
employer"under section 414(b), 414(c) or 414(m) of the Code, has
incurred any liability which could subject Buyer or any of its
Affiliates to material liability under ERISA. None of the
Restaurant Locations, Trademarks or Purchased Assets are subject
to any Lien under Code section 401(a)(29), ERISA Section 302(f)
or Code section 412(n), ERISA Section 4068 or arising out of any
action filed under ERISA Section 4301(b). Neither the Seller or
any current Affiliate is, or within the seven years immediately
preceding the date of this Agreement was, required to contribute
to any multiemployer plan, within the meaning of Section
4001(a)(3) of ERISA. All contributions to Plans required to be
made on or before the date hereof have been timely made. To the
best of Seller's knowledge, there are no disputes, claims,
actions, suits or proceedings, or governmental or administrative
investigations, pending or threatened against or with respect to
any Plan. To the best of Seller's knowledge, there is no Plan
under which any employee or former employee of Seller is entitled
to claim or receive severance pay or benefits.
(q) Since April 2, 1995, Seller has conducted the
businesses and operations of the Restaurant Locations only in the
ordinary course consistent with past practice, and there has been
no material adverse change in the business, assets, revenues, or
financial condition of the Restaurant Locations.
(r) All information and data previously provided, or
that may in the future be provided, by Seller (or any of its
agents or advisors) to Buyer (or any of its agents,lenders or
advisors) relative to the Restaurant Locations, the business and
operations thereof, the Purchased Assets and/or the Trademarks,
is and will, to the best of Seller's knowledge, be complete and
correct in all material respects and not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the information therein, in light of
the circumstances under which they were made, not misleading.
8. Representations and Warranties of the Buyer.
The Buyer represent, warrants, covenants and agrees with Seller
as follows:
(a) The Buyer has all requisite power and authority
to own, operate and lease its properties and to carry on its
business as now being conducted.
(b) All tax returns required to be filed by Buyer in
any jurisdiction have in fact been filed and all taxes,
assessments, fees and other governmental charges upon or assessed
against the Buyer pursuant to such tax return assessment notices
of deficiency have been paid.
(c) The Buyer has the power and authority to execute,
deliver and perform this Agreement and the other instruments,
agreements, certificates or other documents required to be
delivered by it to the Seller on the date of Closing or otherwise
in connection with this Agreement.
(d) This Agreement has been, and the documents
delivered by Buyer pursuant hereto or in connection with this
Agreement will be, duly executed and delivered by the Buyer.
This Agreement is and each of the Buyer's documents delivered
pursuant to this Agreement or in connection herewith will be the
legal, valid and binding obligations of the Buyer enforceable
against the Buyer in accordance with their respective terms.
(e) No consent or approval of any person is required
in connection with the Buyer's execution and delivery of this
Agreement or of any of the other documents delivered pursuant
hereto or in connection herewith by the Buyer or for the
consummation by the Buyer of the transactions contemplated hereby
or thereby except for such consents and approvals as are referred
to in Sections 5(c), 5(d) and 11(f) hereof.
9. Information and Records Concerning the Business.
(a) The Seller agrees that the Buyer, its lending
bank and their respective authorized counsel, accountants and
other representatives may, from time to time prior to the date of
Closing, make, or cause to be made, such reasonable investigation
of the operation of the Seller's business as the Buyer or such
other parties reasonably deems necessary or advisable to
familiarize themselves with the Seller's business, the Restaurant
Locations and/or Purchased Assets. The Seller agrees to permit
the Buyer, its lending bank and such authorized representatives
upon reasonable notice to have full access to the relevant books
and records of the Seller relating to the Seller's business, the
Restaurant Locations, Trademarks and/or Purchased Assets, at
reasonable business hours, and the Seller agrees to furnish the
Buyer its lending bank and such authorized representatives with
such operating data, personnel files and other information and
copies of documents with respect to the Seller's business, the
Restaurant Locations, Trademarks and/or Purchased
Assets(collectively the "Business Information") as the Buyer, its
lending bank and/or such authorized representatives shall
reasonably request from time to time. No such investigation by
the Buyer or its lending bank or such authorized representatives
shall affect any of the Seller's representations and warranties
in this Agreement.
(b) In the event of termination of this Agreement
prior to the date of Closing, the Buyer shall deliver to the
Seller all documents, work papers and other materials obtained
from the Seller or the Seller's representatives relating to the
Seller, its business or the transactions contemplated by this
Agreement, regardless of whether such documents,work papers or
other materials were obtained before or after the execution of
this Agreement. The Buyer will not reveal or make known to any
person or entity (except its lending bank and the counsel,
accountants and other authorized representatives of Buyer or its
lending bank) or use in its own business or otherwise any such
information, except that this restriction shall not apply to any
information (i) which was in, is in or comes into the public
domain, (ii) which at any time lawfully came or comes in to the
possession of the Buyer its lending bank or such authorized
representatives from third parties who at the time the
information came or comes into the possession of the Buyer, had
or have a right to disclose such information otherwise than in
connection with this Agreement, or (iii) which is required to be
disclosed by law, rule, regulation or court order or decree.
10. Obligations of the Parties Until Closing.
(a) Between the date of this Agreement and the date
of Closing, the Seller shall conduct and maintain its business in
the ordinary course of business consistent with past practice.
The Seller shall maintain its corporate existence, and the Seller
shall not be merged or consolidated with or into any other
entity, and no other entity shall merge or consolidate with or
into the Seller. In addition, Seller shall refrain from taking
any action,and not suffer to exist any event or circumstance
within its control, which would render any of its representations
and warranties contained in this Agreement inaccurate in any
material respect as of the Closing Date and shall promptly advise
the Buyer of any such event or circumstance.
(b) Between the date of this Agreement and the date
of Closing, Seller shall:
(i) Maintain the Restaurant Locations and
Purchased Assets in the same condition
existing on the date of this Agreement
except for changes in the ordinary course
of business;
(ii) Maintain in full force and effect all
licenses, permits, easements, rights and
other authorizations currently in effect
with respect to the Restaurant Locations,
Trademarks and/or Purchased Assets;
(iii) Use its best efforts to maintain in full
force and effect the insurance policies and
binders currently in effect with respect to
the Restaurant Locations and/or Purchased
Assets;
(iv) Use its best efforts to preserve intact the
present business organization of the
Seller, keep available the services of the
Seller's present employees and agents, and
retain the Seller's relations and good will
with suppliers, employees and any others
having business relating to the Restaurant
Locations, Purchased Assets and/or
Trademarks;
(v) Use its best efforts to carry on the
Seller's business at the Restaurant
Locations diligently and in the same manner
as conducted prior to the execution of this
Agreement and, with respect to the
Purchased Assets, Trademarks and the
Restaurant Locations, the Seller shall not
make or institute any different methods of,
or enter into any new or renewed contract,
agreement, understanding or commitment with
respect to, the purchase, sale, lease,
management, accounting or operation except
in the ordinary course of business;
(vi) Except with the prior written consent of
the Buyer, which shall not be unreasonably
withheld or delayed, the Seller shall not
grant any increase in the rates of pay or
fringe benefits of any hourly employees of
the Seller who may or will become an
employee of the Buyer except for scheduled
increases previously disclosed to the Buyer
and consistent with past practices;
(vii) Maintain all of the books and records of
the Restaurant Locations in accordance with
past practices;
(viii) Promptly advise the Buyer in writing of the
threat or commencement against the Seller
of any dispute, claim, action, suit or
proceeding, arbitration or investigation
known to the Seller which could materially
or adversely affect the operations,
properties, assets or prospects of the
Restaurant Locations, Purchased Assets
and/or Trademarks;
(ix) Not permit or suffer to exist any Lien on
or against the Restaurant Locations,
Purchased Assets and/or Trademarks not in
existence on the date hereof; and
(x) Not solicit an offer from, or enter into
any negotiations, agree in principle or
contract with (conditionally or otherwise),
any other person or entity with respect to,
or take any other action, directly or
indirectly, to cause, promote or authorize,
any transaction competing or interfering
with, or which may have the effect of
frustrating, any of the transactions
contemplated by this Agreement.
(c) The Seller Parties and Buyer shall use their
respective best efforts to cause the conditions to the
obligations of the parties to consummate the transactions
contemplated by this Agreement to be satisfied, to the extent
that the satisfaction of such conditions is in the control of any
such Seller Party or Buyer (as the case may be), in each case, as
promptly as practicable after the date hereof; provided, however,
the foregoing shall not constitute a limitation or expansion upon
the covenants and obligations of any party otherwise expressly
set forth in this Agreement nor require either the Buyer or
Seller to incur any cost except as specifically required herein.
11. Conditions Precedent to Buyer's Obligations.
Unless waived by the Buyer, the obligation of the
Buyer to consummate the Overall Transaction in accordance with
this Agreement is subject to the fulfillment of each of the
following conditions (in addition to those set forth in Section 5
hereof):
(a) The Seller's representations and warranties
contained in this agreement or in any exhibit, list, certificate
or document delivered pursuant to the provisions hereof shall be
true at and as of the date of Closing as though such
representations and warranties were made at and as of such time,
except to the extent affected by the transactions contemplated
hereby.
(b) The Seller shall have performed or complied with
each of its agreements and covenants required by this Agreement
to be performed or complied with by the Seller prior to or at the
date of Closing.
(c) The Seller shall have delivered to the Buyer an
opinion, dated as of the date of Closing, of Doherty, Wallace,
Pillsbury and Murphy, P.C., counsel for the Seller, inform and
substance reasonably acceptable to the Buyer, with respect to the
authorization by the Seller's directors and shareholders of the
transactions contemplated by this Agreement and the
enforceability against the Seller of its obligations pursuant to
this Agreement, the Leases, Trademark License Agreement and other
documents contemplated by this Agreement, subject only to normal
and customary exceptions.
(d) No action, suit, claim or proceeding shall have
been commenced or threatened by any governmental authority or
private party (other than Buyer) (i) seeking to restrain, enjoin
or hinder, or seeking damages on account of, the consummation of
the transactions contemplated by this Agreement, or (ii) which
could reasonably be expected to have a material adverse effect on
any of the Restaurant Locations, Purchased Assets and/or
Trademarks.
PAGE
<PAGE>
(e) Since the date of this Agreement there shall not
have been any material adverse change in the condition (financial
or otherwise), assets, properties or operation of,or any material
damage or destruction to, any of the Purchased Assets, Trademarks
or Restaurant Locations.
(f) Buyer shall have obtained from its lending bank,
Bank of America Illinois, the additional financing described in
the letter of such bank dated May 26, 1995 a copy of which has
been provided to Seller (the "Commitment Letter") on
substantially the terms set forth in such Commitment Letter, and
the funds or additional funds to be made available by such Bank
as contemplated by the Commitment Letter shall have been made
fully available to Buyer as set forth therein.
(g) Seller shall have executed and delivered to Buyer
the Trademark License Agreement.
(h) Seller shall have executed and delivered to Buyer
a Bill of Sale covering the Purchased Assets substantially in
the form attached hereto as Exhibit I (the "Bill of Sale").
(i) Seller shall have executed and delivered to Buyer
a certificate that: (i) certifies true and correct copies of
Seller's articles of organization, as amended, and by-laws,as
amended, and all Board of Directors and/or shareholder
resolutions adopted in respect of this Agreement and the
transactions contemplated hereby; and (ii) certifies to the
matters set forth in subsection (a) and (b) of this Section 11.
(j) Seller shall have executed and delivered to Buyer
a receipt for the portion of the Purchase Price payable at
Closing.
(k) Seller shall deliver to the Buyer a Certificate
of Legal Existence and a Certificate of Good Standing from the
Massachusetts Secretary of State with respect to the Seller and a
Certificate of Good Standing from the Massachusetts Department of
Revenue with respect to the Seller.
(l) Seller shall furnish to Buyer a waiver of
corporate excise tax lien under Mass. G.L. Chapter 62C, Section
52 in connection with the sale of the Purchased Assets by Seller
to Buyer.
(m) The Seller shall execute, acknowledge and deliver
any and all other documents which may be necessary or appropriate
to carry out fully the intentions and undertakings of the Seller
as set forth in this Agreement.
12. Conditions Precedent to Seller's Obligations.
Unless waived by the Seller, the obligation of the
Seller to consummate the Overall Transaction in accordance with
the provisions of this Agreement is subject to the fulfillment
of each of the following conditions:
(a) The representations and warranties of the Buyer
in this Agreement or on any exhibit, list, certificate or
document delivered pursuant to the provisions hereof shall be
true at and as of the date of Closing as through such
representations and warranties were made at and as of such time,
except to the extent affected by the transactions contemplated
hereby.
(b) The Buyer shall have performed or complied with
each of its agreements and covenants required by this Agreement
to be performed or complied with by the Buyer prior to or at the
date of Closing.
(c) The Buyer shall have delivered to the Buyer an
opinion, dated as of the date of Closing, of Dechert Price &
Rhoads, counsel for the Buyer, in form and substance reasonably
acceptable to the Seller, with respect to the authorization by
the Buyer's directors of the transactions contemplated by this
Agreement and the enforceability against the Buyer of its
obligations pursuant to this Agreement, the Leases, Trademark
License Agreement and other documents contemplated by this
Agreement subject only to normal and customary exceptions.
(d) No action, suit, claim or proceeding shall have
been commenced or threatened by any governmental authority or
private party (other than Seller) seeking to restrain, enjoin or
hinder, or seeking damages on account of, the consummation of the
transactions contemplated by this Agreement.
(e) Buyer shall have executed and delivered to Seller
the Trademark License Agreement.
(f) Buyer shall have executed and delivered to Seller
the Bill of Sale.
(g) Buyer shall have executed and delivered to Seller
a certificate that: (i) certifies true and correct copies of
Buyers articles of incorporation, as amended, and by-laws, as
amended, and all Board of Directors resolutions adopted in
respect of this Agreement and the transactions contemplated
hereby; and (ii) certifies to the matters set forth in subsection
(a) and (b) of this Section 12.
(h) Buyer shall have delivered to Seller the portion
of the Purchase Price payable at Closing.
(i) Buyer shall execute, acknowledge and deliver any
and all other documents which may be necessary or appropriate to
carry out fully the intentions of the Buyer as set forth in this
Agreement.
13. Covenant Not to Compete.
Each of George and Ronald agree that during the two
(2) year period following the date of Closing, neither of them
shall, directly or indirectly, manage, operate,control, purchase,
invest in, be employed by, participate in, consult with or become
associated in any capacity with the operation, management,
ownership or control of any family style restaurant with
operations anywhere in New England. It is understood and agreed
that the operation or ownership of P.J. Scott and Ivanhoe
restaurants by George or Ronald does not violate this covenant
because they are not family style restaurants. The Seller and
George and Ronald acknowledge and agree that the Buyer does not
have an adequate remedy at law in the event of any breach of this
covenant and therefore George and Ronald agree that the Buyer
shall be entitled to injunctive relief in the event of any breach
of this covenant in addition to any and all other remedies that
the Buyer may have as a result of such breach. The parties agree
that if any portion of this covenant is held by a court of
competent jurisdiction not to be enforceable, the scope and/or
duration of the provisions of this covenant shall be reduced, and
this covenant shall be deemed to have been correspondingly
reformed automatically, to the extent necessary to maintain as
much as possible the enforceability of this covenant in its
original form. Notwithstanding any thing herein to the contrary,
George and Ronald shall not be subject to the covenants of this
Section 13 with respect to their direct or indirect ownership or
operation of any Restaurant Location(s) removed from this
Agreement under Section 5 hereof, and they shall be entitled to
own and/or operate such removed Restaurant Location(s) as a
family style restaurant.
14. Closing.
(a) The Seller and the Buyer agree that the closing
with respect to the purchase of the Purchased Assets and the
execution of the Leases and Trademark License Agreement pursuant
to this Agreement and all related transactions (the "Closing")
shall take place on such date mutually agreed upon by Seller and
Buyer (as the case may be, the"Closing Date") that is no later
than the later to occur of (i) the first business day after
both:(x) all contingencies referred to in Section 5 hereof shall
have been satisfied, waived and/or otherwise resolved as set
forth therein with respect to each Restaurant Location, and
(y)Buyer shall have obtained from its lending bank, Bank of
America Illinois, the additional financing described in the
Commitment Letter on substantially the terms set forth in such
Commitment Letter, and (ii) July 3, 1995, at 10:00 a.m. effective
as of 12:01 a.m. on that date at the offices of Doherty, Wallace,
Pillsbury and Murphy, P.C., One Monarch Place,Springfield,
Massachusetts or at such other place or such other time as may be
mutually agreed upon by the Seller and the Buyer.
PAGE
<PAGE>
(b) This Agreement may be terminated by either
Seller (upon written notice to Buyer) or Buyer (upon written
notice to Seller) if for any reason the Closing shall not have
occurred on or before August 14, 1995 (the "Deadline Date");
provided, however,that neither such party shall be permitted to
terminate this Agreement under this Section 14(b) if the Closing
shall not have occurred by the Deadline Date by reason of a
breach by such party (or, in the case of Seller, by any other
Seller Party) of their obligations under Section 10(c).
Termination of this Agreement under this Section 14(b) shall also
automatically and irrevocably terminate all rights and
obligations hereunder (including any claim by any party hereto
based upon any actual or alleged breach of any representation,
warranty, covenant or agreement herein by another party hereto)
but excluding any claim by any party hereto based upon any actual
or alleged breach by another party hereto of Section 10(c).
(c) The Seller shall deliver to the Buyer a
Certificate of Legal Existence and a Certificate of Good Standing
from the Massachusetts Secretary of State with respect to the
Seller and a Certificate of Good Standing from the Massachusetts
Department of Revenue with respect to the Seller.
(d) The Seller shall furnish to Buyer a waiver of
corporate tax lien under Mass. G.L. Chapter 62C, Section 52 in
connection with the sale of the Purchased Assets by Seller to
Buyer.
(e) The Seller and Buyer shall each execute
acknowledge and deliver any and all other documents which may be
necessary or appropriate to carry out fully the intentions and
undertakings of the parties as set forth in this Agreement.
(f) The parties shall make such adjustments to the
Purchase Price to reflect pro-rations of amounts due from the
Seller prior to closing and from the Buyer after the closing as
may be customary in transactions of this nature. Any items not
so pro-rated at Closing shall be pro-rated promptly thereafter.
(g) The Buyer shall be responsible for any sales or
use tax due with respect to the motor vehicles included in the
Purchased Assets as a result of the transactions contemplated by
this Agreement.
15. Indemnification.
(a) Subject to the limitations set forth in this
Section 15(a), from and after the Closing Date Seller shall
indemnify the Buyer and its directors, officers, employees,
stockholder and affiliates (the Buyer and all of such other
persons and entities being hereinafter referred to as the "Buyer
Indemnified Persons") against, and hold the Buyer Indemnified
Persons harmless from, any and all Losses (as defined below in
this Section 15)directly or indirectly incurred, suffered,
sustained or required to be paid by, any of the Buyer Indemnified
Persons resulting from or arising out of: (i) any breach of any
of the representations or warranties made by any Seller Party in
or pursuant to this Agreement or any other agreement, document or
instrument executed and delivered pursuant hereto or in
connection herewith or the Closing; (ii) any breach of any
covenant or agreement made by any Seller Party in or pursuant to
this Agreement or any other agreement, document or instrument
executed and delivered pursuant hereto or in connection herewith
or the Closing;(iii) any Environmental Condition that, in whole
or in part, existed at a Restaurant Location prior to the Closing
Date; and (iv) any matter or thing for which Seller has agreed to
indemnify Buyer under Section 6.a. hereof.
The right to indemnification under this Section 15(a)
is subject to the following limitations:
(A) The indemnification rights under this Section
15(a) shall expire at the respective times set
forth in Section 15(e), and Seller shall have no
liability under this Section 15(a) unless Buyer
gives written notice to Seller asserting a claim
for Losses, including reasonably detailed
specific facts and circumstances pertaining
thereto, before the expiration of the periods of
time that the underlying representations,
warranties, covenants and agreements survive
under Section 15(e) hereof.
(B) Indemnification for claims under this Section
15(a) shall be payable hereunder only if and to
the extent that the claimed Losses exceed $50,000
(in the aggregate, not per occurrence).
(C) Seller's liability for all Losses under Section
15(a)(i) and 15(a)(ii) shall in no event exceed
the amount of $500,000.00; and Seller's liability
for all Losses under Section 15(a)(iii) and
15(a)(iv) shall in no event exceed the amount of
$1,000,000.00.
In order to avoid any doubt, it is acknowledged and
agreed by Seller that any Losses directly or indirectly incurred,
suffered, sustained or required to be paid by any of the Buyer
Indemnified Persons resulting from or arising out of any debt,
liability or obligation not assumed under Section 1(c) hereof
shall be indemnified by Seller without regard to any of the above
survival period, "basket" or "cap" limitations.
(b) Subject to the limitations set forth in this
Section 15(b), from and after the Closing Date the Buyer shall
indemnify Seller and its directors, officers, employees,
stockholders and affiliates (the Seller and all of such other
persons and entities being hereinafter referred to as the "Seller
Indemnified Persons"), against, and hold the Seller Indemnified
Persons harmless from, any and all Losses directly or indirectly
incurred,suffered, sustained or required to be paid by, any of
the Seller Indemnified Persons resulting from or arising out of:
(i) any breach of any of the representations or warranties made
by Buyer in or pursuant to this Agreement or any other agreement,
document or instrument executed and delivered pursuant hereto or
in connection herewith or the Closing; or (ii) any breach of any
covenant or agreement made by Buyer in or pursuant to this
Agreement or any other agreement, document or instrument executed
and delivered pursuant hereto or in connection herewith or the
Closing.
The right to indemnification under this Section 15(b)
is subject to the following limitations:
(A) The indemnification rights under this Section
15(b) shall expire at the respective times set
forth in Section 15(e), and Buyer shall have no
liability under this Section 15(b) unless Seller
gives written notice to Buyer asserting a claim
for Losses, including reasonably detailed
specific facts and circumstances pertaining
thereto, before the expiration of the periods of
time that the underlying representations,
warranties, covenants and agreements survive
under Section 15(e) hereof.
(B) Indemnification for claims under this Section
15(b) shall be payable hereunder only if and to
the extent that the claimed Losses exceed $50,000
(in the aggregate, not per occurrence).
(C) Buyer's liability for all Losses under this
Section 15(b) shall in no event exceed the amount
of $500,000.00.
(c) For purposes of this Section 15, "Losses" means
all losses, claims,judgments, damages (including, without
limitation, punitive and consequential damages awarded to any
third-party claimant based upon acts or omissions of the
indemnifying party or an affiliate thereof), liabilities,
payments and obligations, whether or not fixed in amount,and all
costs and expenses, and shall include, without limitation, any
costs of investigation,remediation or cleanup, any reasonable
legal fees and costs incurred by any of the Buyer Indemnified
Persons or Seller Indemnified Persons subsequent to the Closing
in defense of or in connection with any alleged or asserted
liability, payment or obligation as to which they are entitled to
indemnification hereunder, regardless of whether or not any
liability, payment,obligation is ultimately imposed against the
Buyer Indemnified Persons or Seller Indemnified Persons and
whether or not the Buyer Indemnified Persons or Seller
PAGE
<PAGE>
Indemnified Persons are made or become parties to an action, suit
or proceeding in respect thereof, voluntarily or involuntarily.
(d) With respect to any matter as to which any person
or entity (the"Indemnified Person") is entitled to
indemnification from any other person or entity (the"Indemnifying
Person") under this Section 15, the Indemnified Person shall
promptly notify the Indemnifying Person of such matter and
following such notification shall have the right,but not the
obligation, to contest, defend or litigate, and to retain counsel
of its choice in connection with, any claim, action, suit or
proceeding by any third party alleged or asserted against the
Indemnified Person in respect of, resulting from, related to or
arising out of such matter, and the costs and expenses thereof
shall be subject to the indemnification obligations of the
Indemnifying Person hereunder; provided, however, that if the
Indemnifying Person acknowledges in writing its obligation to
indemnify the Indemnified Person in respect of such matter to the
fullest extent provided by this Section 15, the Indemnifying
Person shall been titled, at its option, to assume and control
the defense of such claim, action, suit or proceeding at its
expense through counsel of its choice that is reasonably
acceptable to the Indemnified Person if it gives prompt notice of
its intention to do so to the Indemnified Person and reimburses
the Indemnified Person for its costs and expenses incurred prior
to the assumption by the Indemnifying Person of such defense.
Neither an Indemnified Person nor an Indemnifying Person shall be
entitled to settle or compromise any such claim, action,suit or
proceeding without the prior written consent of the other, which
consent shall not be unreasonably withheld or delayed.
(e) All representations and warranties contained
herein or made pursuant to this Agreement shall survive the
Closing for a period of two years after the Closing
Date;provided, however, that the representations and warranties
of Seller as to: (x) title shall survive without limitation, (y)
taxes, litigation and proceedings and Section 7(c), shall survive
for so long as the underlying statutes of limitation shall permit
any claim or action to be brought against Buyer with respect
thereto. Indemnification under Section 15(a)(iii) and 15(a)(iv)
may be sought for so long as the underlying statutes of
limitation shall permit any claim or action to be brought against
Buyer with respect thereto. All covenants and agreements of the
parties contained in or made pursuant to this Agreement and
required to be performed prior to the Closing Date shall survive
the Closing for a period of two years.
(f) Notwithstanding anything to the contrary set
forth in this Agreement,no party hereto shall have any liability
to any other party hereto, or any of their respective directors,
officers, employees, stockholders or affiliates, for any
punitive, special or consequential damages by virtue of any
breach of any representation, warranty, covenant or agreement in
or pursuant to this Agreement or any document or instrument
executed and delivered pursuant hereto or in connection herewith
or the Closing; provided that the foregoing shall not be deemed
to limit the obligation of any party hereunder to indemnify for
Losses constituting punitive, special or consequential damages
awarded to any third-party claimant based upon acts or omissions
of the indemnifying party or an affiliate thereof.
16. Miscellaneous.
(a) The Seller and Buyer represent and warrant to
each other that no broker or agent was or is involved or in any
way responsible for any of the transactions contemplated by this
Agreement except Duff & Phelps Capital Markets Co. and Kevin
Hartigan for whose services the Seller shall be solely
responsible. The Seller and Buyer agree that they will indemnify
and hold each other harmless from and against any breach of this
representation and warranty by either of them. The
indemnification obligations set forth herein shall survive the
closing.
(b) All notices, statements, demands, requests,
consents, communications and certificates from any party to this
agreement to any other party shall be made in writing and sent by
United States certified mail, return receipt requested, postage
prepaid or by overnight mail service for which a receipt is
provided or by a telecopier or other electronic means of
transmission for which a receipt is provided and delivered to the
addressee,addressed as follows:
If intended for the Seller:
Abdow Corporation
595 Cottage Street
P.O. Box 329
Springfield, MA 01101-0329
Attention: Ronald J. Abdow
Fax No. (413) 733-9582
With a copy to:
Paul S. Doherty, Esquire
Doherty, Wallace, Pillsbury and Murphy, P.C.
One Monarch Place, 19th Floor
1414 Main Street
Springfield, MA 01144
Fax No. (413) 734-3910
If intended for the Buyer:
ELXSI d/b/a Bickford's Family Restaurants
1330 Soldier's Field Road
Boston, MA 02135
Attention: Daniel E. Bloodwell
Fax No. (617) 783-2554
With a copy to:
Claude A. Baum, Esquire
Dechert Price & Rhoads
477 Madison Avenue
New York, New York 10022-5891
Fax No. (212) 308-2041
or to such other addresses or entities as any party hereto may
from time to time direct by service of notice on any other party
as provided above. Any references to any requirement that
written notice be delivered that may be set forth in this
Agreement may be deemed to include the delivery of notice by
telecopier or other electronic means as provided above. Any such
notices, statements, demands, requests, consents, communications
or certificates shall be deemed to be given on the date the same
are mailed or sent in accordance with the provisions of this
paragraph.
(c) Any announcements or similar publicity or other
disclosure with respect to this Agreement or the transactions
contemplated by this Agreement shall be only at such time and in
such manner as the Seller and the Buyer shall mutually agree;
provided that the foregoing shall not be deemed to prohibit or
restrict such announcements or disclosures as may be required to
be made by Buyer (or its parent corporation) under applicable
securities laws, it being understood and agreed that Buyer shall
give Seller reasonable written notice of and opportunity to
comment on any such required announcements or disclosures.
(d) Subject to the terms and conditions set forth in
this Agreement, from and after the Closing the Seller and Buyer
agree to take, or cause to be taken such actions,to execute and
deliver, or cause to be executed and delivered, such additional
documents and instruments and to do or cause to be done all
things necessary, proper or advisable as may be requested by the
other party in order to further carry out fully and/or evidence
the transactions contemplated by this Agreement.
(e) The Seller and the Buyer acknowledge that the
Escrow Agent also represents the Seller in connection with the
transactions contemplated by this Agreement. The Buyer agrees
that in the event of any dispute regarding the deposit, the
Escrow Agent shall nevertheless be entitled to continue to
represent the Seller. The Seller and the Buyer agree that the
Escrow Agent shall not be liable for any action or non-action
taken in good faith and without gross negligence in connection
with the performance by the Escrow Agent of its duties hereunder,
but shall be liable only for willful default, acts of bad faith
and gross negligence. Without limiting the generality of the
foregoing, in the event of any dispute with respect to the
delivery of any amounts being held in escrow by the Escrow Agent,
the Escrow Agent is authorized to retain such amounts and all
interest thereon in its possession,without liability to any
person, until such dispute has been settled by mutual agreement
of the parties or by a final order, decree or judgment of an
arbitrator or a court of competent jurisdiction and the time for
appeal has expired and no appeal has been perfected. The Escrow
Agent shall not be under any duty to institute or defend any such
proceedings. In no event shall the Escrow Agent be required to
take any action unless and until indemnified to its satisfaction
by the party requesting such action. The Escrow Agent has
executed this Agreement to indicate its acceptance of the
provisions of this Agreement and its agreement to abide by those
provisions of this Agreement that are applicable to the Escrow
Agent. The Escrow Agent shall not be paid any fees or other
amounts in connection with the performance by the Escrow Agent of
its services hereunder. Neither this Agreement nor any interest
or right hereunder shall be assigned by any party to this
Agreement without the written consent of all the other parties to
this Agreement.
(f) This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements, arrangements,
commitments and understandings with respect thereto. No change or
modification of this Agreement shall be valid unless made in
writing, signed by all of the parties hereto.
(g) Neither this Agreement, nor any of the rights
and obligations of the parties hereunder, may be assigned or
delegated by any party hereto without the prior written consent
of the other parties hereto; provided, however, that this
Agreement and the rights of any party hereto to receive the
performance of the obligations of any other party hereto and to
assert claims against any other party hereto in respect of
representations, warranties, covenants and agreements of any
other party hereto may be assigned as collateral security to any
bank, financial institution or other person or entity who shall
have extended credit to the assigning party or any direct or
indirect subsidiary, parent or other affiliate of the assigning
party. Any such assignee of such rights shall take such rights
subject to any defenses and counterclaims to which the obligors
under this Agreement may been titled hereunder. This Agreement
shall inure to the benefit of and be binding upon the parties
hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives.
(h) This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
(i) In order to assist Buyer and/or its parent
corporation in the preparation of any financial statements in
respect to the Restaurant Locations and Purchased Assets required
to be filed by Buyer or its parent corporation under federal
securities laws, from and after the date hereof (including after
Closing Date) the Seller Parties shall upon reasonable written
notice: (i) give to the Buyer and its counsel, accountants and
agents, such access to, and opportunity to examine, the books,
records, files, documents, properties and assets of the
Restaurant Locations and/or Purchased Assets in the possession or
control of any Seller Party as the Buyer shall from time to time
reasonably request; and (ii) to the extent within their control,
grant access to the officers, employees, counsel and accountants
of the Seller and cause them to furnish such data and other
information regarding the Restaurant Locations and/or Purchased
Assets as they know or possess as the Buyer shall from time to
time reasonably request. Any examination or investigation
pursuant to this Section 16(i) shall be conducted in such manner
as not to interfere unreasonably with the ordinary course of the
business and operations of the Seller.
(j) Except as otherwise expressly set forth in this
Agreement, the Seller Parties (on the one hand) shall bear their
own, and Buyer (on the other) shall bear its own,legal fees,
accounting and audit fees, appraisal fees, investment banking
fees, and other costs and expenses with respect to the
negotiation, execution and the delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(k) The descriptive headings of this Agreement are
for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement. Section and
Exhibit references in this Agreement are to the referenced and
Sections of, and Exhibits to, this Agreement unless the context
otherwise requires.
(l) The parties hereto acknowledge that the remedy at
law for any breach of the obligations undertaken by the parties
hereto is and will be insufficient and inadequate and that the
parties hereto shall be entitled to equitable relief. In the
event of any action to enforce the provisions of this Agreement,
each party hereto shall waive the defense that there is an
adequate remedy at law. Without limiting the remedies that may
otherwise be available hereunder or under applicable law, in the
event any party hereto fails to perform its obligations under
this Agreement, the other parties hereto shall have, in addition
to any other remedy at law or in equity, the right to specific
performance.
(m) Notwithstanding any other provision of this
Agreement to the contrary,and except as expressly provided in
Section 15, this Agreement shall not create benefits on behalf of
any employee or agent of Seller or any other person or entity
not party hereto(including, without limitation, any investment
banker, broker or finder, notwithstanding the provisions of
Section 16(a)), and this Agreement shall be effective only as
between the parties hereto, their successors and permitted
assigns.
PAGE
<PAGE>
(n) This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall
constitute but one agreement.
17. Arbitration.
If any dispute shall arise between the parties with
respect to any of the provisions of this Agreement, or any breach
hereof except an alleged breach of Section 13,the parties agree
to submit such dispute to arbitration in accordance with the
rules then obtaining of the American Arbitration Association.
The parties shall pay for their own costs and expenses in
connection with any arbitration and shall pay for the cost of the
arbitration itself in equal shares (subject to Section 15). The
arbitration hearing shall be held in Worcester, Massachusetts.
IN WITNESS WHEREOF, the parties hereto have signed this
agreement as a sealed instrument as of the 31st day of May, 1995.
THE SELLER,
ABDOW CORPORATION
______________________ By:________________________
Witness Its President,
Ronald J. Abdow
THE BUYER,
BICKFORD'S FAMILY
RESTAURANTS division of
ELXSI
______________________ By:________________________
Witness Its Vice President,
PAGE
<PAGE>
The undersigned hereby sign this Agreement solely for the
purpose of being liable for their covenants contained in Sections
6 and 13 of this Agreement.
_______________________ ___________________________
Witness George T. Abdow
_______________________ ___________________________
Witness Ronald J. Abdow
We hereby acknowledge receipt of
the deposit in the amount of Two
Hundred Thousand ($200,000.00)
Dollars.
THE ESCROW AGENT,
DOHERTY, WALLACE, PILLSBURY
AND MURPHY, P.C.
By:_____________________________
PAGE
<PAGE>
SCHEDULE OF EXHIBITS
EXHIBIT A - List of Restaurant Locations
EXHIBIT B - Contracts Relating to Restaurants
EXHIBIT C - Description of Purchased Assets
EXHIBIT D - Trademark License Agreement
EXHIBIT E - Rent and Option Terms
EXHIBIT F - Form of Lease between affiliated party of the Seller
and Buyer
EXHIBIT G - Form of Sublease between Seller as Sublandlord and
Buyer as Subtenant
EXHIBIT H - Disclosed Building and Related Conditions
EXHIBIT I - Form of Bill of Sale
<PAGE>
EXHIBIT A
RESTAURANT LOCATIONS
Riverdale Road, West Springfield, Massachusetts
Fairview, Chicopee, Massachusetts
Boston Road, Springfield, Massachusetts
Enfield Street, Enfield, Connecticut
Webster Square, Worcester, Massachusetts
Wethersfield, Connecticut
Lincoln Plaza, Worcester, Massachusetts
Vernon, Connecticut
Westfield, Massachusetts
Allen and Cooley, Springfield, Massachusetts
Westboro, Massachusetts
Northampton, Massachusetts
Auburn, Massachusetts
Hazard Avenue, Enfield, Connecticut
Avon, Connecticut
Greenfield, Massachusetts
<PAGE>
EXHIBIT B
CONTRACTS AND LEASES
1. Muzak - 16 locations - August 24, 1994 - August 24, 1999.
2. J.F. Partyka & Son, Inc. 645 Shawinigan Drive, Chicopee,
Massachusetts for the following locations:
Riverdale
Chicopee
Boston Road
Westfield
Northampton
Greenfield
Riverdale
3. Sanitary Waste Disposal, Box T South Windsor, Connecticut
for the following locations:
Hazard Avenue
Enfield
Wethersfield
Vernon
4. Reliable Refuse, Box 769, South Windsor, Connecticut for
the following location:
Avon
5. BFI, Box 345, Auburn, Massachusetts for the following
locations:
Webster Square
Lincoln Street
Westboro
Auburn
6. Paragon Gas, 100 Louisiana, Suite 1100, Houston, Texas
77002, Attention Jarod Hodson from March 31, 1995 to March
31, 1996 - 60 day notice lead time.
7. Credit Card Processor - Visa, etc. National Data Terminals
70529 Main Street, Charlestown, Massachusetts, Attention:
Rosemarie Bish. 15 Restaurants.
8. Credit Card - Glastonbury & Trust, 2461 Main Street,
Glastonbury, Connecticut, Attention: Stephen St. Clair for
the following locations:
Hazard Avenue
9. Four telephone beepers.
PAGE
<PAGE>
PREPAID CONTRACTS
a. AT&T Global NCR maintenance for cash registers for the
following locations:
Riverdale
Enfield
Westboro
Hazard
Auburn
b. International Cash Register for the following locations:
Boston Road
<PAGE>
EXHIBIT C
DESCRIPTION OF PURCHASED ASSETS
All furniture, fixtures, equipment and other personal
property and leasehold improvements owned by Assignor and located
at any of the sixteen (16) restaurant locations(the "Restaurant
Locations") listed on Exhibit "A" attached hereto and made a part
hereof,and all other assets of the Assignor used in the conduct
of its restaurant business at the Restaurant Locations, including
but not limited to maintenance vehicles; useable food and paper
goods inventory located at any of the Restaurant Locations;
dishes; glasses; utensils;uniforms; forms; office supplies;
retail goods sold at cashier stands; inventory used in the
repairs to the heating, ventilating, air conditioning and
plumbing systems; training, marketing and promotional materials;
recipes, menus; unit sales and controllable profit
information;all cash on hand in the cash drawers at the
Restaurant Locations (totalling approximately $900.00 at each
Restaurant Location); any and all prepaid expenses and utility
and other deposits owned by the Assignor in connection with the
operation of the Restaurant Locations which will inure to the
benefit of the Assignee; any and all purchase orders and
commitments of the Assignor for the purchase of food, beverages,
operating supplies, dishes,glasses, utensils, uniforms and paper
goods (excluding those that are provided by Assignor's
commissary); any and all contracts relating to the operation of
the Restaurant Locations in the ordinary course of business that
are listed on Annex "2" attached hereto; any and all permits,
licenses and other approvals relating to the operation of the
Restaurant Locations that are assignable by Assignor; to the
extent permitted by applicable law, copies of all personnel
records of employees hired by the Assignee (with all personal and
gratuitous comments purged); and all other miscellaneous property
and information exclusively pertaining to the Restaurant
Locations and their operation, including (without limitation)the
following:
A. Booths, Tables, Chairs, Counters and Cash Registers.
B. Salad Bars.
C. Waitress Service Areas: including pie cases, juice
dispensers, coffee makers, stainless steel service counters
including sinks, ice chests, refrigerated storage boxes,
ice cream chests (includes dipper wells), waitress storage
counter and refrigerated storage boxes.
D. Kitchens: including grills, 2-4 door refrigerated holding
boxes, fryolators, overhead broilers, char broilers, bay
steam holding tables, kitchen stainless service counters,
plates, storage boxes, counter storage shelves.
PAGE
<PAGE>
E. Dish rooms: dishwashers including pre-wash sinks and
stainless.
F. Storage Areas: walk-in and storage shelving, walk-in
freezers and storage shelving, dry storage areas.
G. Prep areas: stainless sinks, prep tables, fryolators,
holding cabinets, mixers, ovens, ice machines
H. Other: all chinaware, silverware, glasses, aluminum baking
trays, miscellaneous pots, pans and kitchen utensils.
I. Three motor vehicles.
<PAGE>
EXHIBIT D
TRADEMARK LICENSE AGREEMENT
This is a TRADEMARK LICENSE AGREEMENT (this
"Agreement"), dated as of [Closing Date], 1995, by and between
Abdow Corporation, a Massachusetts corporation("Licensor") with
offices at 595 Cottage Street, Springfield, Massachusetts
01101-0329, and ELXSI, a California corporation ("Licensee"),
with offices at 1330 Soldier's Field Road,Boston, Massachusetts
02135.
BACKGROUND
Under the terms of a Purchase and Sale Agreement,
dated as of May 31, 1995(the "Purchase Agreement"), among
Licensor, Licensee, George T. Abdow and Ronald J.Abdow, Licensor
has agreed to license to Licensee, on the terms and conditions
and to the extent set forth herein, all rights of Licensor in, to
and under the "Abdow's" and "Abdow's Family Restaurants" trade
names and marks (including, without limitation, the logo type
shown in U.S. service mark Reg. No. 1,348,718) (collectively, the
"Underlying Marks"). The Underlying Marks have been used by the
Licensor in connection with its restaurant business,all or a
portion of which is being acquired by Licensee under the Purchase
Agreement.
The transactions contemplated by the Purchase
Agreement are being consummated today, and the parties hereto now
wish to implement their agreements with respect to the Underlying
Marks and related matters, under this Agreement. Such agreements
are with respect to all "Marks", which, for purposes of this
Agreement, means and includes: (1) each of the Underlying Marks,
(2) all forms and variations of any of the Underlying Marks, (3)
all slogans, logotypes, designs, menu item terms and names,
colors,trade dress (including building trade dress) and other
indicators of origin associated with any of the Underlying Marks,
and (4) all goodwill associated with any of the Underlying Marks.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by
the undersigned, and intending to be legally bound hereby, the
parties agree as follows:
AGREEMENTS
1. Grant of License.
(a) Licensor hereby grants to Licensee, for the duration
of the term of this Agreement, a limited, exclusive (as against
Licensor [(except as set forth in Section 7 hereof)]<FN1> and all
____________________
<FN1> To be included only if one or more Restaurant Locations
are excluded from the Overall Transaction.
third parties), royalty-free, fully-paid, North America-wide
license to use the Marks in connection with the Relevant Business
(as hereinafter defined) of Licensee and on and in connection
with the goods and services of the Relevant Business of Licensee
(the "Licensed Goods/Services").
(b) For purposes of this Agreement the term "Relevant
Business" means and includes any restaurant or other food-related
business and/or operations, wherever located in North America,
present or future, including (without limitation) all Restaurant
Locations being acquired by Licensee under (and as defined in)
the Purchase Agreement and all other present and future
restaurant locations and restaurant- or food-related facilities
of Licensee(including restaurant and food-related businesses and
operations of Licensee presently being operated under the
Bickford's(R) or Howard Johnson's(R) names and marks).
(c) Licensee shall have the right to develop and use new
composite marks, slogans,logotypes, designs, colors and trade
dress incorporating any of the Marks, and the foregoing shall be
referred to herein collectively as the "New Marks." Licensee
will notify Licensor of each New Mark. Licensor may in its sole
discretion register each New Mark in Licensor's name at
Licensee's direction (provided that if Licensee undertakes to
bear the expense of such registration and the maintenance
thereof, then Licensor shall not unreasonably refuse to effect
such registration), and each New Mark shall be automatically
considered a "Mark"under this Agreement. If Licensee develops
and uses any marks, logotypes, designs, colors or trade dress in
connection with the Licensed Goods/Services which do not
incorporate a Mark, Licensee will own such marks, logotypes,
designs, colors or trade dress (as the case may be) and may
register them in its own name, and none of them will be
considered"Marks" under this Agreement.
2. Quality Control. The Marks may be used in connection with
Licensed Goods/Services the general level of quality of which are
not materially and consistently below the general level of
quality of similar goods and services of Licensee in the same
price category and geographic market. Licensee shall be
responsible for monitoring such quality and for reporting any
material deficiencies to Licensor. In addition, Licensee shall
submit to Licensor, upon Licensor's written request (not more
frequently than annually)representative samples of menus and
advertising or promotional material bearing the Marks and used in
connection with the Licensed Goods/Services. Notwithstanding the
foregoing,Licensor may patronize Licensee's premises to evaluate
and monitor the quality of the Licensed Goods/Services.
3. Ownership and Maintenance of Marks; Infringement Claims.
(a) Licensee acknowledges that the ownership of all right,
title and interest in the Marks is and shall remain solely vested
in Licensor, and Licensee agrees that all of its use of the Marks
shall inure to the exclusive benefit of Licensor for all
purposes.
(b) Licensee shall have the right, at its expense, to
register in Licensor's name various forms of the Marks
(including, without limitation, the currently unregistered
Marks)for any of the Licensed Goods/Services with the U.S. Patent
and Trademark Office, any state trademark office or any similar
office outside the United States (but with respect to North
America). Licensor shall fully cooperate with such efforts by
Licensee and shall execute and deliver any documents that
Licensee may deem necessary or desirable to effect such
registrations. Licensee shall at its expense maintain all
existing U.S. trademark registrations of the Marks.
(c) If either party becomes aware of (i) any unauthorized
use or infringement by any third party of any Mark or (ii) any
assertion by any third party that Licensee's use of any Mark
constitutes trademark, service mark, trade dress or trade name
infringement, unfair competition or any other tortious act, it
shall promptly notify the other party of such infringement or
assertion. Subject to the provisions of Section 15 of the
Purchase Agreement (which shall control in the event of a
conflict with any of the following provisions): (x) Licensor may
in its discretion defend any legal action with regard to any
Mark, and in such event Licensee shall have the right to
participate in such defense undertaken by Licensor; and (y) in
the event Licensor fails to exercise its right to defend any such
legal action Licensee may in its discretion defend the same.
Licensor may in its discretion prosecute claims of infringement
against third parties that relate to the use of any Mark on or in
connection with goods and services other than any of the Licensed
Goods/Services. In the event that Licensor chooses not to
prosecute any such claim, it shall promptly notify Licensee of
such decision, and Licensee shall have the right to prosecute
such claim. Licensee may in its discretion prosecute claims of
infringement against third parties that relate to use of any Mark
on or in connection with any of the Licensed Goods/Services. In
the event that Licensee prosecutes any such legal action,
Licensor shall cooperate fully with Licensee in such prosecution
or defense (as the case may be), provided that Licensee
reimburses Licensor for all of its reasonable out-of-pocket
expenses incurred in connection with such cooperation. Licensee
shall retain all amounts recovered, whether by judgment, award,
settlement or otherwise, in any suit commenced and maintained to
its conclusion by Licensee.
4. Exclusivity. Licensor agrees that during the term of this
Agreement [(and except as otherwise permitted under Section 7
hereof)]<FN2>, it shall not, and that it shall use its best
_______________
<FN2> To be included only if one or more Restaurant Locations
are excluded from the Overall Transaction.
efforts to cause each of its directors, officers, employees,
stockholders and Affiliates (as defined in Section 6 hereof) to
not, use, exploit, apply or take any other action with respect to
any Mark on or in connection with the goods and services of any
Relevant Business.
5. Term and Termination.
(a) This Agreement shall have an initial term of 40 years
commencing on the date of this Agreement. After the expiration
of the initial forty-year term, this Agreement shall be
automatically renewed for successive 10-year terms unless: (i)
Licensee shall have given Licensor written notice of termination
at least 180 days prior to the end-date of the then current term,
or (ii)(x) Licensor shall have previously given written notice
that Licensee is failing to comply with the quality control
standards set forth in Section 2 hereof with respect to one or
more of the Licensed Goods/Services (and providing reasonable
details as to the factual basis of such assertion), and (y) such
non-compliance is not cured by Licensee on or prior to the
end-date of the then current term, it being understood and
agreed, however,that any such termination by Licensor hereunder
shall only be with respect to any Licensed Goods/Services that
remains in such non-compliance.
(b) This Agreement may be terminated at any time upon the
mutual agreement of the parties hereto.
6. Assignment; Sublicensing. Licensee may: (a) with prior
written notice to Licensor,assign or sublicense all or any part
of its rights and obligations under this Agreement to an
Affiliate of Licensee or to any successor to all or any part of
the Licensee's Relevant Business, and (b) with the prior written
consent of Licensor, not to be unreasonably withheld or delayed,
assign or sublicense to any third party all or any part of its
rights or duties under this Agreement. For purposes of this
Agreement, an "Affiliate" is any entity that controls, is
controlled by, or is under common control with, Licensee. Either
party may freely grant a security interest in its rights and
obligations hereunder.
7. [Licensor Restaurants. Notwithstanding anything to the
contrary set forth herein,Licensor (and its directors, officers,
employees, stockholders and Affiliates) shall be free to use,
exploit and apply the Marks in connection with the restaurant and
other food-related business and/or operations of the Restaurant
Locations described in Annex 1 attached hereto.
PAGE
<PAGE>
8.<FN3> Miscellaneous.
(a) Any notice or consent required to be given under this
Agreement shall be in writing and shall be deemed given if
personally delivered, sent by facsimile transmission with
confirmation of receipt, sent by overnight courier, or sent by
first class mail to the parties at the following addresses:
If to Licensor:
Abdow Corporation
595 Cottage Street
P.O. Box 329
Springfield, MA 01101-0329
FAX: (413) 733-9582
Attention: Ronald J. Abdow
If to Licensee:
ELXSI d/b/a Bickford's Family Restaurants
1330 Soldier's Field Road
Boston, MA 02135
FAX: (617) 783-2554
Attention: Daniel E. Bloodwell
or to such other addresses as each party may designate in writing
from time to time.
(b) This Agreement shall be construed in accordance with
the laws of the Commonwealth of Massachusetts, may be amended or
modified only by a writing executed by all parties, and shall be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
(c) This Agreement [together with its Annex]<FN4> sets
forth all of the promises and undertakings between the parties
relating to the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings, express or
implied, oral or written with respect to the subject matter
hereof.
_______________
<FN3> To be included only if one or more Restaurant Locations
are excluded from the Overall Transaction.
<FN4> To be included only if one or more Restaurant Locations
are excluded from the Overall Transaction.
PAGE
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date and year first above written.
Licensor:
ABDOW CORPORATION
By:________________________
Name:
Title:
Licensee:
ELXSI
By:________________________
Name:
Title:
PAGE
<PAGE>
[Annex 1
(to Trademark
License Agreement)
Licensor's Abdow's Restaurant(s)
[Identify "kicked-out" restaurants, if any]]
<PAGE>
EXHIBIT E
Expiration
Unit Rent (b) Date Option
- ---- -------- ---------- ------
Riverdale $ 90,000 7-1-00 None
Fairview (Chicopee) 62,000 7-1-15 To be negotiated (a)
Boston Rd. 100,000 7-1-15 To be negotiated (a)
Enfield St. 62,000 7-1-15 To be negotiated (a)
Webster Sq. 66,000 5-1-08 None
Wethersfield 90,000 3-1-98 One 5-yr.
Lincoln Plaza 62,000 4-5-96 Two 10-yr.
Vernon 72,000 7-30-95 Two 5-yr.
Westfield 115,000 7-1-15 To be negotiated (a)
Allen & Cooley 66,000 7-1-15 To be negotiated (a)
Westboro 62,000 7-1-96 One 15-yr.
Northampton 60,000 10-31-01 None
Auburn 116,000 7-1-15 To be negotiated (a)
Hazard Ave. 115,000 7-1-15 To be negotiated (a)
Avon 70,000 9-1-04 Two 5-yr.
Greenfield 72,000 3-1-09 Three 5-yr.
(a) These properties are currently owned by Abdow's Corporation
and/or an affiliated party. Options to renew and rights of
first opportunity to purchase for properties owned by
Abdow's and/or its affiliates are to be negotiated. Other
properties are currently leased by Abdow's from third
parties. These properties will be sub-leased by Abdow's to
ELXSI at the same lease terms that are currently in place,
except as to rents, which shall reflect the schedule
outlined above.
(b) The rents outlined above shall be increased by 5% every five
years.
<PAGE>
EXHIBIT F
LEASE
This Lease is between ___________________________________,
with a usual place of business at 595 Cottage Street,
Springfield, Massachusetts 01104, hereinafter referred to as the
"Lessor",and ELXSI, a California Corporation, d/b/a Bickford's
Family Restaurants, with a usual place of business located at
1330 Soldiers Field Road, Boston, Massachusetts 02135,hereinafter
referred to as the "Lessee".
The Lessor and the Lessee agree as follows:
1. Leased Premises.
(a) The Lessor hereby leases to the Lessee, and the
Lessee hereby leases from the Lessor, for the term and upon the
conditions contained in this Lease, the premises located at
_______________________________________ (the "Leased Premises").
The Leased Premises consist of a restaurant building (the
"Building"), a parking area and related site improvements. The
Leased Premises are more particularly described on Exhibit A,
which is attached hereto and made a part hereof.
(b) Except as otherwise expressly provided in this
Lease, the Lessor hereby reserves to itself (i) in the event of a
default by the Lessee, as defined in paragraph 14 below, the
right to maintain, use, repair and replace pipes, ducts, wires,
meters and any other equipment, machinery, apparatus and fixtures
located within or without the Leased Premises; and (ii) the right
to enter the Leased Premises for repair and maintenance for
emergency purposes at any time.
2. Use Restrictions.
The Lessee may use the Leased Premises only as a
restaurant, unless the Lessee obtains the prior written consent
of the Lessor to any proposed alternate use, which consent shall
not be unreasonably withheld so long as the proposed alternate
use is not contrary to any applicable law or regulation. The
Lessee shall not use, suffer or permit the use by any person of
the Leased Premises for any purpose or in any manner which is
contrary to any applicable law or regulation, which may
constitute a nuisance or be offensive or which could cause injury
or damage to the Leased Premises.
3. Commencement Date; Condition of Leased Premises.
The term of this Lease shall commence on July 3,
1995 (the "Commencement Date"). The Lessee shall take possession
of the Leased Premises in "AS IS" condition on the Commencement
Date.
4. Term.
(a) The Lessee shall hold the Leased Premises for an
initial term of twenty (20) lease years, beginning upon the
Commencement Date. The phrase "lease year" as used herein shall
mean a period of twelve (12) consecutive calendar months
commencing on July 3 of each year during the term of this Lease.
(b) The Lessor hereby grants the Lessee an option to
extend the term of this Lease (the "Option") for one (1)
additional term of ten (10) lease years (the "Option Term")
beyond the ending date of the then effective term of this Lease
as set forth in paragraph 4(a) above. The Option may only be
exercised upon the delivery by the Lessee to the Lessor of
written notice of its intention to exercise an Option and extend
the term hereof at least six (6) months prior to the ending date
of the then current term. Upon the delivery of such written
notice and provided that the Lessee is not in default of any of
its obligations hereunder either at the time of the delivery of
such notice or at the ending date of the then current term, the
term of this Lease shall be extended in accordance herewith upon
all of the terms and conditions contained herein without the
necessity of executing any other instrument or document, and the
ending date of the term of this Lease shall be the last day of
the applicable Option Period.
5. Rent, Right of First Opportunity.
(a) The Lessor and the Lessee agree that the annual
rent payable by the Lessee during the initial term of this Lease
shall be as follows:
Lease Years Rent
----------- ----
1-5 x
6-10 (1.05)(x)=y
11-15 (1.05)(y)=z
16-20 (1.05)(z)=a
(b) The Lessor and the Lessee agree that the annual
rent payable by the Lessee during the Option Term of this Lease,
in any, shall equal the fair market rental value of the Premises
during the first five (5) Lease Years of such Option Term (the
"Option Rental"), as determined by an independent certified real
estate appraiser mutually agreed upon by the parties. During
the second five (5) Lease Years of such Option Term the annual
rent payable by the Lessee shall equal the Option Rental plus
five percent (5%).
(c) The annual rent payable by the Lessee to the
Lessor pursuant to paragraph 5(a) and (b) above shall be payable
in equal monthly installments at the office of the Lessor or at
the Lessor's agent, in advance, upon the first day of each
calendar month during the term of this Lease. The rent for any
portion of a calendar month shall be appropriately adjusted.
(d) The Lessee agrees to pay the rent provided for
in this Lease as and when due including any additional rent, as
well as all sums of money, charges or other amounts required to
be paid by the Lessee to the Lessor or to another person under
this Lease, all of which shall be deemed to be "rent" in addition
to the rent expressly provided for herein. All payments of rent
and additional rent shall be due and payable without demand
therefor unless otherwise expressly provided in this Lease.
Non-payment of additional rent when due shall constitute a
default under this Lease to the same extent, and shall entitle
the Lessor to the same remedies, as non-payment of rent.
(e) Lessee agrees that any rent or additional rent as
required by this Lease shall not be subject to any offset or
reduction, whether or not the Lessee has a claim against the
Lessor.
(f) In the event that the Lessor determines to sell
the Leased Premises to an unrelated party at any time during the
initial term of this Lease or any Option Term of this Lease then
in effect, the Lessor agrees to give the Lessee thirty (30) days
advance written notice of such intention before listing the
Leased Premises with a broker or taking any other steps to sell
the Leased Premises (the "Notice Period"). During the Notice
Period the Lessee shall have the right to enter into negotiations
with the Lessor for the purchase of the Leased Premises. In the
event that the Lessor and Lessee do not reach agreement upon the
terms and conditions of such sale during the Notice Period, the
Lessor shall be free to sell the Leased Premises to any party on
whatever terms and conditions the Lessor seems appropriate,
whether or not such terms and conditions are more or less
favorable than those offered by the Lessee.
6. Additional Rent.
(a) Real Estate and Personal Property Taxes. The
Lessee shall pay to the Lessor for each lease year during the
term of this Lease, as additional rent, one hundred(100%) percent
of the amount of all real estate taxes and assessments, including
betterment assessments, levied with respect to the Leased
Premises (the "Real Estate Taxes"). The Lessee also shall be
responsible for any and all personal property taxes (the
"Personal Property Taxes"). All additional rent shall be paid
within ten (10) days of the Lessor's submittal of a bill showing
the amount of additional rent due to the Lessee.
(b) Insurance. The Lessee shall pay, as additional
rent, one hundred(100%) percent of the actual costs incurred by
the Lessee to insure the Leased Premises as required in paragraph
10, below (the "Insurance").
(c) Net Lease. It is the specific intention of the
Lessor and the Lessee that this Lease shall be a "triple net"
lease and that the rental amounts set forth in this Lease shall
be the net amount of money obtained by the Lessor in connection
with the lease of the Leased Premises by the Lessor to the
Lessee, and the Lessor shall not be required to make any payments
on account of, in connection with or arising out of the use and
occupancy of the Leased Premises, perform any services or
otherwise take any actions with respect to the Leased Premises,
all of which shall be the sole responsibility of the Lessee,
other than as specifically set forth herein. The Lessee agrees
to indemnify and hold the Lessor harmless from and against any
such costs, expenses and obligations.
(d) The Lessee, at its sole cost and expense, shall
have the right, at anytime, to seek a reduction in the assessed
valuation of the Premises or to contest any Real Property Taxes
that are to be paid by Lessee. If Lessee seeks a reduction or
contests the Real Property Taxes, the failure on Lessee's part to
pay the Real Property Taxes shall not constitute a default
hereunder as long as Lessee diligently pursues its remedies
against the taxing authority in accordance with the provisions of
this paragraph 6(a) and as long as no final judgment has been
entered and no action is taken by the taxing authority to
foreclose on any tax lien or other encumbrance which results from
such delay. Lessor shall not be required to join in any
proceeding or contest brought by Lessee under this paragraph
unless the provisions of any law require that the proceeding or
contest be brought by or in the name of Lessor. In that case
Lessor shall join in the proceeding or contest or permit to be
brought in Lessor's name so long as Lessor is not required to
bear any cost and so long as such proceeding is brought by
counsel satisfactory to Lessor. Lessee, on final determination
of any such proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered, together with all
costs, charges, interest, and penalties incidental to the
decision or judgment. As a condition to the maintenance of any
such proceeding by Lessee,Lessor may require, if Lessee does not
pay the Real Property Taxes when due, that before the
commencement of the proceeding or contest Lessee shall furnish
Lessor with evidence that Lessee has adequate reserves to pay any
amounts due for such Real Property Taxes,which reserves shall be
in an amount at least equal to One Hundred Twenty-Five
Percent(125%) of the total amount of Real Property Taxes in
dispute. The Lessee shall hold Lessor and the Premises harmless
from any damage arising out of the proceeding or contest and
shall insure the payment of any judgment that may be rendered.
7. Condition of Leased Premises, Maintenance and Repairs,
Surrender.
(a) Except as otherwise set forth in a certain
Purchase and Sale Agreement dated as of May 31, 1995 by and
between the Abdow Corporation as Seller and the Lessee as Buyer
(the "Purchase and Sale Warranties"), neither the Lessor nor any
related party of the Lessor has made and the Lessee has not
relied upon any representations or warranties,whether express or
implied, as to the condition of the Leased Premises or their
suitability for the Lessee's use other than those which may be
specifically set forth in this Lease. The Purchase and Sale
Warranties applicable to this Lease are set forth on Exhibit B,
which is attached hereto and made a part hereof. The Lessee
acknowledges that the Lessee has had a full and complete
opportunity to inspect the Leased Premises. The Lessee accepts
the Leased Premises in the condition existing upon the
Commencement Date.
(b) The Lessee agrees that during the term of this
Lease it shall, at its own expense, make all necessary structural
and other repairs to the Leased Premises, including without
limitation all repairs required with respect to the roof and the
exterior of the Leased Premises, and it shall maintain the
Building, any fixtures therein and the plumbing, electrical and
air conditioning and heating systems servicing the Leased
Premises in good working order and condition. The Lessee agrees
that during the entire term of this Lease it shall,at all times,
keep the Leased Premises in a good, clean condition and in good
order and repair and it shall make all necessary repairs and
perform all necessary maintenance for such purposes. The Lessee
shall be responsible for all necessary repairs, replacements and
maintenance of all glass, floors and walls. If the Lessee fails,
refuses or neglects to make such repairs or perform such
obligations or fails to prosecute diligently such repairs to
completion or completely perform such obligations, the Lessor
shall give the Lessee written notice of Lessee's failure, and,
if, in such event, the Lessee does not perform such obligations
or fails to prosecute diligently such repairs to completion or
completely perform such obligations within twenty (20) days of
the date of such notice, the Lessor may either declare the Lessee
to be in default or make such repairs or perform such obligations
at the expense of the Lessee, and such expenses shall be
collectible as additional rent. The Lessee shall not permit the
Leased Premises to be overloaded, damaged, stripped or defaced
nor suffer any waste. Removal of trash and other debris, snow
and ice from the Leased Premises shall be the Lessee's
responsibility and shall be at the sole expense of the Lessee.
(c) The Lessee agrees that during the term of this
Lease it shall not discharge,release or cause or permit to be
discharged or released any hazardous or toxic wastes,materials,
pollutants, solvents or metals, as defined in any local, state or
federal statute, law,order, ordinance, rule or regulation
(collectively, "Hazardous Materials"), in gaseous, solid or
liquid form, into the ground, air, plumbing system, the solid
waste disposal receptacles of the Leased Premises or the sanitary
and/or storm drain system servicing the Leased Premises. The
Lessee agrees that any such discharge or release of Hazardous
Materials,whether or not such discharge or release originated on
the Leased Premises, shall constitute an event of default under
this Lease without further notice to the Lessee, unless the
Lessee proceeds with all due diligence to take all necessary
steps to remediate such discharge in accordance with all
applicable federal, state and local laws and regulations and
unless the Lessee continues such remediation efforts diligently
until completion in compliance with all such laws and
regulations, and in the event of a default hereunder the Lessee
agrees that the Lessor may take such actions as the Lessor, in
its sole discretion, deems necessary or appropriate in order to
abate or mitigate such discharge or release and/or the effect
thereof. All such actions taken by the Lessor shall be taken in
the Lessor's sole discretion, and the Lessor shall not have any
obligation to take any such actions. The Lessee agrees to
indemnify and hold the Lessor harmless from and against any
claims, demands, liability,damages, costs and expenses, including
without limitation reasonable attorneys' fees, and fines or
penalties, and all expenses for any environmental engineering,
remediation and disposal of any Hazardous Materials, suffered or
incurred by the Lessor as a result of or in connection with any
discharge or release on the Leased Premises of any Hazardous
Materials, and all such amounts shall be collectible from the
Lessee as additional rent. In the event of a claim against the
Lessor pursuant to the terms of this paragraph 7(c), the Lessee
shall provide counsel of its choosing, at Lessee's sole cost and
expense, to defend such claims. The Lessor shall have the right
to approve such counsel, which approval shall not be unreasonably
withheld.
(d) The Lessor shall not be liable for any injury to
or interference with the Lessee's business arising from or caused
by the making of any repairs in or to the Leased Premises or to
any appurtenances thereto or equipment therein permitted
hereunder. There shall be no abatement of rent because of such
repairs, alterations, or improvements, except as otherwise
expressly provided herein. The Lessor agrees to use its best
efforts not to interfere unreasonably with the conduct by the
Lessee of its business in the Leased Premises in connection with
any such repairs, alterations, additions or improvements.
8. Surrender.
At the end of the term of this Lease or upon the
earlier termination of this Lease, the Lessee shall surrender the
Leased Premises to the Lessor, together with all alterations,
additions and improvements thereto, in broom clean condition and
in good order and repair except for ordinary wear and tear. If
the Lessee is not then in default under the terms hereof, the
Lessee shall have the right at the end of the term hereof to
remove any equipment, furniture, trade fixtures or other personal
property owned by or placed in the Leased Premises by the Lessee.
The Lessee shall promptly repair any damage to the Leased
Premises caused by such removal and restore the Leased Premises
to the condition existing upon the commencement date. In the
event that the Lessee fails to repair and restore the Leased
Premises as provided herein, the Lessor may perform or cause such
repairs and restoration to be performed at the Lessee's expense.
In the event of the Lessee's failure to remove any of Lessee's
property from the Leased Premises, Lessor is hereby
authorized,without liability to Lessee for loss or damage
thereto, and at the sole risk of Lessee, to remove any of the
property at Lessee's expense, or to retain same under Lessor's
control or to sell at public or private sale, without notice, any
or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or
to destroy such property.
9. Compliance with Law, Contest.
(a) The Lessee agrees that it shall, at its own
expense, comply with all state and federal statutes, municipal
regulations, and all regulations and orders of any public
authority with respect to the use and occupancy of the Leased
Premises or with respect to any alteration or repair of the
Leased Premises undertaken by the Lessee (collectively, the"Legal
Requirements").
(b) The Lessee, at its sole cost and expense, shall
have the right, at anytime, to contest the validity of any Legal
Requirement, provided that noncompliance with said Legal
Requirement shall not subject Lessor to criminal liability. If
Lessee contests any Legal Requirement, the failure on Lessee's
part to comply with said Legal Requirement shall not constitute a
default hereunder so long as Lessee diligently pursues its
remedies against the authority charged with enforcement of said
Legal Requirement. Lessor shall not be required to join in any
contest brought by Lessee under this paragraph 9(b) unless the
provisions of any law require that the contest be brought by or
in the name of Lessor. In that case Lessor shall join in the
contest or permit it to be brought in Lessor's name so long as
Lessor is not required to bear any cost and so long as such
contest is brought by counsel satisfactory to Lessor. Lessee, on
final determination of any such contest, shall comply with all
terms of any decision and pay all costs, interest and penalties
incidental to the decision. Lessee shall indemnify Lessor against
all costs of and against all liability for any damages,interest,
penalties and expense (including reasonable attorneys' fees)
resulting or incurred in connection with such contest. Prior to
the initiation of any such contest, Lessee shall furnish Lessor
with evidence that Lessee has adequate reserves to pay for the
cost of compliance with any Legal Requirement contested
hereunder, which reserves shall be in an amount equal to at least
One Hundred Twenty-Five Percent (125%) of such costs of
compliance.
PAGE
<PAGE>
10. Indemnity and Liability Insurance.
(a) The Lessee agrees that, unless caused by the
negligence of the Lessor,it will (i) indemnify the Lessor against
any injury, loss, claim or damage to any person or property while
on the Leased Premises; (ii) indemnify the Lessor against any
injury, loss,claim or damage to any person or property, wherever
located, if caused by the negligent or tortious acts of the
Lessee or its agents or servants; and (iii) without limiting the
generality of the foregoing, the Lessee specifically agrees that
it will not make any claim against the Lessor based on the
leakage of water, gas or other substance from any pipes,
sprinklers or equipment, or by reason of the existence, use or
misuse of water or plumbing, heating,electrical, gas or other
fixtures or equipment, unless due to the negligence of the
Lessor.
(b) If the Lessor shall, without fault or negligence
on its part, be made a party to any litigation commenced by or
against the Lessee, the Lessee shall protect and hold the Lessor
harmless and indemnified from and against any loss or damage
sustained by the Lessor as a result thereof, and the Lessee shall
pay all costs and expenses, including reasonable attorneys' fees,
incurred or paid by the Lessor in connection with such
litigation.
(c) The Lessee shall procure and maintain in full
force a "Comprehensive General Liability" insurance policy.
Under such policy Bodily Injury limits shall not be less than
$2,000,000 each person, each occurrence and Property Damage
limits shall not be less than $2,000,000 each occurrence.
Certificates of the insurance effected under this paragraph, and
certificates of any and all renewals or replacements of this
policy, shall be delivered to the Lessor as soon as possible
after the effective date of this Lease. The policy or
certificate shall name the Lessor as an additional insured, and
shall provide that the insurance shall not be canceled or reduced
in amounts of limits, or reduced in breadth of coverage without
thirty (30) days prior written notice to the Lessor, and that no
act or omission on the part of the Lessee shall invalidate such
policies as they apply to the Lessor.
(d) The Lessee shall provide and maintain in full
force any and all other insurance policies of types and limits
normally covered by persons engaged in the restaurant business
where the Leased Premises are located, in each case naming the
Lessor as an additional insured and all such policies providing
for at least thirty (30) days prior notice to Lessor of any
material charge thereto, that no act or omission on the part of
the Lessee shall invalidate such policies that apply to the
Lessor and securing any and all such policies from companies
licensed to do business where the Leased Premises are located.
PAGE
<PAGE>
(e) The Lessee shall carry fire insurance with
extended coverage on Leased Premises in an amount not less than
the full insurable value of the Leased Premises,exclusive of the
foundations. Certificates of the insurance effected under this
paragraph, and certificates of any and all renewals or
replacements of this policy, should be delivered to the Lessor as
soon as possible after the effective date of this Lease. The
policy or certificate shall name the Lessor as an additional
insured, should provide that the insurance shall not be canceled
or reduced in the amounts of limits, or reduced in breadth of
coverage without thirty (30) days prior written notice to the
Lessor, and that no act or omission on the part of the Lessee
shall invalidate such policies as applied to the Lessor.
(f) The Lessee shall not violate or permit violation
of any of the conditions and provisions contained in any
insurance policies provided for in this Lease. The Lessee shall
perform and satisfy the requirements of the insurance company
writing any such policies so that at all times insurance
companies of good standing shall be willing to write or continue
such insurance policies.
11. Utilities.
The Lessor and the Lessee agree that the Lessee shall
obtain and pay for all utilities used or consumed by the Lessee
in connection with its use and occupancy of the Leased Premises,
including without limitation all gas, electric, telephone, water,
sewer and all other utilities, at the Lessee's sole cost and
expense.
12. Destruction of Leased Premises.
(a) If the Leased Premises are damaged by fire, the
elements, unavoidable accident or other casualty, the Lessee
shall at its own expense cause such damage to be repaired within
a reasonable time, and any rent or additional rent required
hereunder shall continue unabated. In causing such damage to be
repaired, the Lessee may use the proceeds of any insurance
policies required pursuant to the terms of paragraph 10, above,to
the extent that such proceeds are not required to pay claims of
any person arising out of the incident which caused such damage
to the Premises.
(b) In the event that during any effective term
hereof the Leased Premises are destroyed in whole or in part,
which destruction is a risk covered by any insurance provided for
pursuant to the terms of paragraph 10, above, and if the total
amount of such loss exceeds fifty percent (50%) of the full
insurable value of the Leased Premises, Lessee shall make the
loss adjustment with the insurance company insuring the loss and
on receipt of the proceeds shall immediately pay such proceeds to
a party designated by the institutional lender holding a first
mortgage on the fee interest of the Leased Premises, or,if there
is no such first fee mortgage, by the institutional lender
holding a first mortgage on the leasehold interest of the Leased
Premises, or, if there is no such first leasehold mortgage,by the
Lessor (the "Insurance Trustee"). If the designated Insurance
Trustee appointed by the Lessor is an institutional lender
qualified to do business in the Commonwealth of Massachusetts, no
prior approval of the Lessee is required, but the Lessor shall
provide Lessee with written notice of the name and address of the
Insurance Trustee. If the Leased Premises destroyed are not
covered by the insurance described in paragraph 10, above, and
Lessee has the obligation to restore the Leased Premises, the
Lessee shall deposit with the Insurance Trustee the necessary
funds to complete the restoration. All sums deposited with the
Insurance Trustee shall be held for the following purposes and
the Insurance Trustee shall have the following powers and duties.
The sums deposited shall be paid in installments by the Insurance
Trustee to the contractor retained by the Lessee as construction
progresses for payment of the cost of restoration. A ten percent
(10%) retention fund shall be established that will be paid to
the contractor on completion of restoration, payment of all
costs, expiration of all applicable liens, and proof that the
Leased Premises are free of all mechanics liens, notices of
contract and lienable claims.
Payment shall be made on presentation of certificates or
vouchers from the architect or engineer retained by Lessee
showing the amount due. If the Insurance Trustee, in its
reasonable discretion, determines that the certificates or
vouchers are being improperly approved by the architect or
engineer retained by Lessee, the Insurance Trustee shall have the
right to appoint an architect or engineer to supervise
construction and to make payments on certificates or vouchers
approved by the architect or engineer retained by the Insurance
Trustee. The reasonable expenses and charges of the architect or
engineer retained by the Insurance Trustee shall be paid by the
Insurance Trustee out of the trust fund established hereunder.
If the sums held by the Insurance Trustee are not sufficient to
pay the actual cost of restoration, Lessee, to the extent
required by this Lease, shall deposit the amount of the
deficiency with the Insurance Trustee within thirty (30) days
after a request by the Insurance Trustee indicating the amount of
the deficiency. Any sums not dispersed by the Insurance Trustee
after restoration has been completed and final payment has been
made to Lessee's contractor shall be delivered within fifteen
(15) days (after a demand made by either party on the Insurance
Trustee), by the Insurance Trustee to any mortgagee of the Leased
Premises, if required by the terms of the mortgage, and shall be
applied by such mortgagee to reduce the principal amount of any
loan or obligation underlying such mortgage. Any undisbursed
funds after compliance of the provisions of this paragraph
12(b) shall be delivered to Lessor to the extent of Lessor's
contribution to the fund, and the balance, if any, shall be paid
PAGE
<PAGE>
to Lessee. All actual costs and charges of the Insurance Trustee
shall be paid by Lessee.
If the Insurance Trustee resigns, or for any reason is
unwilling to act or continue to act, Lessor shall substitute a
new trustee in place of the designated Insurance Trustee. If
such substitute trustee is an institutional lender qualified to
do business in the Commonwealth of Massachusetts, no prior
consent of the Lessee to such substitute trustee is required, but
the Lessor shall provide Lessee with written notice of the name
and address of such substitute trustee. Both parties shall
promptly execute all documents and perform all acts reasonably
required by the Insurance Trustee to perform its obligations
under this paragraph 12(b), including any indemnifications or
exonerations reasonably requested by the Insurance Trustee.
(c) In the event the Leased Premises are damaged as
set forth in paragraph 12(a) above, but such damage occurs during
the last two years of the initial term of this Lease or any
Option Term thereof, the Lessee shall at its own expense cause
such damage to be repaired within a reasonable time, but in such
event the Lessee shall not be required to spend more than the
amount of available insurance proceeds upon such repair. If such
repair exceeds the amount of available insurance proceeds, either
the Lessor or the Lessee may terminate this Lease and the tenancy
hereby created by giving to the other, within the thirty (30)
days following the date of such occurrence, written notice of its
election to terminate this Lease thirty (30) days thereafter, and
in that event the rent and additional rent shall be adjusted as
the date which is thirty (30) days after the date of such notice
and neither the Lessor nor the Lessee shall have any further
liability pursuant to this Lease, and all insurance proceeds
shall be remitted to the Lessor.
(d) Notwithstanding anything contained herein to
the contrary, the Lessor shall have no claim upon, nor right to,
any proceeds from any "business interruption"insurance procured
by the Lessee for the Lessee's benefit.
13. Eminent Domain.
(a) If the whole of the Leased Premises are acquired
or condemned by eminent domain for any public or quasi-public use
or purpose, then the term of this Lease shall cease and terminate
as of the date of title vesting in such proceeding, all rentals
shall be paid up to that date and the Lessee shall have no claim
against the Lessor or the condemning authority for the value of
any unexpired term of this Lease.
(b) If any part of the Leased Premises is acquired or
condemned as aforesaid, and in the event that such partial taking
or condemnation shall render the Leased Premises unsuitable for
the business of the Lessee, then the term of this Lease shall
cease and terminate as of the date of title vesting in such
proceeding. The Lessee shall have no claim against the Lessor or
the condemning authority for the value of any unexpired term of
this Lease and rent and additional rent shall be adjusted to the
date of such termination. In the event of a partial taking or
condemnation which is not extensive enough to render the Leased
Premises unsuitable for the business of the Lessee, then the
Lessee shall promptly restore the Leased Premises to a condition
comparable to its condition at the time of such condemnation less
the portion lost in the taking, and this Lease shall continue in
full force and effect without any reduction or abatement of rent
except to the extent that the number of rentable square feet of
space included in the Leased Premises is reduced as a result of
any such taking, in which case the Lessee's obligation to pay
rent and additional rent pursuant to paragraphs 5 and 6 above
shall be appropriately adjusted.
(c) In the event of any condemnation or taking as
aforesaid, whether whole or partial, the Lessee shall not be
entitled to any part of the award paid for such condemnation and
the Lessor shall receive the full amount of such award, subject
to the Lessee's rights pursuant to paragraph 13(d) below. The
Lessee hereby expressly waives any right to claim any part
thereof.
(d) The Lessor agrees that the Lessee shall be
entitled to assert and prosecute a claim against the condemning
authority for compensation for any reasonable personal property
loss, including but not limited to loss or damage to leasehold
improvements, or relocation expenses suffered by Lessee by reason
of such condemnation.
14. Default.
The occurrence of any of the following shall
constitute an event of default and breach of this Lease by the
Lessee:
(a) The failure of the Lessee to pay, within ten (10)
days of the date when due, any installment of rent or additional
rent due hereunder, any other sum required to be paid by the
Lessee or any part of any of the foregoing;
(b) The failure of the Lessee to observe or perform
any other provisions,covenants or obligations of this Lease to be
observed or performed by the Lessee, where such failure continues
for thirty (30) days after the receipt by the Lessee of written
notice thereof from the Lessor, or such longer time as may be
necessary to cure such event of default given the nature of such
event of default;
(c) The making by the Lessee of any assignment for
the benefit of creditors; the adjudication that the Lessee is
bankrupt, insolvent or unable to pay its debts;the filing by or
against the Lessee of a petition to have the Lessee adjudged a
bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy unless,in the case of a petition
filed against the Lessee, such petition is dismissed within sixty
(60)days after the filing thereof; the appointment of a trustee
or receiver to take possession of substantially all of the
Lessee's assets located in the Leased Premises or of the Lessee's
interest in this Lease, unless possession is restored to the
Lessee within thirty (30) days after such appointment; or the
attachment, execution or levy against, or other judicial seizure
of,substantially all of the Lessee's assets located in the Leased
Premises or of the Lessee's interest in this Lease, unless
discharged within thirty (30) days after issuance thereof.
(d) An event of default by the Lessee pursuant to any
other lease or sublease between the Lessee as a lessee or
sublessee, and any entity owned by, controlled by, or operated
for the benefit of, George and Ronald Abdow, or their successors
or assigns, as the lessor or sublessor. Notwithstanding anything
contained herein to the contrary, in the event that the Lessee
assigns this Lease with prior written consent of the Lessor
pursuant to paragraph 25, below, the provisions of this paragraph
14(d) shall be deleted as they regard the Leased Premises herein,
and no default pursuant to this Lease following such assignment
or subleasing shall constitute a default under any other lease or
sublease between the Lessor and the Lessee.
15. Remedies.
Upon the occurrence of any event of default as
described in paragraph 14:
(a) The Lessor may perform for the account of the
Lessee any obligation with respect to which the Lessee is in
default and immediately recover as additional rent any
expenditures made and the amount of any obligations incurred in
connection therewith plus interest at the prime rate of Fleet
Bank of Massachusetts, N.A. (or its successor) plus three percent
(3%) per annum for such expenditures from the date of any such
expenditures,together with a late charge for payments of rent
past due at the same rate of interest;
(b) The Lessor, at its option, may serve notice upon
the Lessee that this Lease and the then unexpired term hereof
shall cease and expire and become absolutely void on the date
specified in such notice, which shall be not less than five (5)
days after the date of receipt of such notice without any right
on the part of the Lessee to save forfeiture by payment of any
sum due or by the performance of any term, provision,
covenant,agreement or condition broken. This Lease and the term
hereof, as well as the right, title and interest of the Lessee
hereunder shall, upon the effective date of such notice, wholly
cease and expire and become void in the same manner and with the
same force and effect,except as to the Lessee's liability, as if
the date fixed in such notice were the date provided herein for
the expiration of the term of this Lease. Upon the delivery of
such notice of termination the Lessee shall immediately quit and
surrender to the Lessor the Leased Premises and in any event, the
Lessor may forcefully remove, without breach of the peace,the
property of the Lessee without being liable either in damages or
in a criminal prosecution. No such expiration or termination of
this Lease shall relieve the Lessee of its liability and
obligations under this Lease, whether or not the Leased Premises
shall be relet. If the Lessee fails to remove any equipment,
furniture, trade fixtures or other property prior to any such
repossession by the Lessor such equipment, furniture, fixtures
and other property shall be deemed abandoned by the Lessee and
shall become the property of the Lessor;
(c) The Lessor may, at any time after the occurrence
of any event of default, re-enter and repossess the Leased
Premises or any part thereof and attempt, in its own name as
agent for the Lessee if this Lease has not been terminated or on
its own behalf if this Lease has been terminated, to relet all or
any part of such Leased Premises for and upon such terms and to
such persons, firm or corporation and for such period or periods
as the Lessor, in its sole discretion, shall determine, including
a term beyond the termination of this Lease. The Lessor shall
not be required to accept any tenant offered by the Lessee or
observe any instruction given by the Lessee with respect to such
reletting. The cost of reasonable brokerage and legal fees
expended by the Lessor in connection with the reletting of the
Leased Premises as well as the cost of repairing, restoring or
redecorating the Leased Premises shall be charged to and be
payable by the Lessee as additional rent hereunder, and any sums
collected by the Lessor from any new tenant shall be credited
against the balance of the rent due hereunder for the remainder
of the term of this Lease. The Lessee shall pay to the Lessor
monthly, on the days when the rent would have been payable under
this Lease,the amount of rent and additional rent due hereunder
less the amount obtained from any such new tenant; and
(d) The rights and remedies given to the Lessor in
this Lease are distinct,separate and cumulative remedies, and no
one of them, whether or not exercised by the Lessor, shall be
deemed in exclusion of any of the others.
16. Signs.
The Lessor and the Lessee agree that the Lessee has
the right to change any and all signs on the Leased Premises to
reflect the identity of the Lessee and the business Lessee is
conducting thereon, provided, however, that in the event Lessee
wishes to change any sign which is a non-conforming use or
otherwise exempted from the operation of any local zoning
ordinance, Lessee shall first provide the Lessor with prior
written notice of any such proposed change, which notice shall
include a statement that the Lessee has consulted with
appropriate local authorities regarding the proposed change. If,
as a result of such consultation, such appropriate local
authorities inform Lessee that the proposed change will subject
such sign to the operation of the local zoning ordinance, Lessee
shall so inform the Lessor in the written notice provided for
herein. In such event the Lessor shall have thirty(30) days from
the receipt of such written notice to notify Lessee that it
intends to challenge such determination, which challenge shall be
at Lessor's sole expense, and with the reasonable cooperation of
the Lessee, provided that Lessee may proceed to erect such sign
in the manner set forth in Lessee's notice to Lessor pending the
outcome of Lessor's challenge. If the Lessor's challenge is
successful, Lessee, at its own cost and expense, shall remove or
alter the sign so that the sign is in conformance with the prior
non-conforming use.
17. Notice of Claims.
In the event of any claim, cause of action or suit is
made or brought against the Lessee of which the Lessee shall have
knowledge, arising from the occupancy of the Lessee of or
pertaining to the Leased Premises, the Lessee shall immediately
notify the Lessor thereof in writing.
18. Quiet Enjoyment.
The Lessor covenants and agrees that upon the Lessee's
paying the rent herein reserved and performing and observing all
the other covenants to be performed and observed on the part of
the Lessee, the Lessee may use and occupy the Leased Premises
throughout the full term of this Lease without any disturbance by
any person whatsoever claiming by or through the Lessor.
19. Subordination, Non-disturbance and Attornment.
(a) The Lessee accepts this Lease subject and
subordinate to any existing or future mortgage or mortgages to
any person, including but not limited to any bank,insurance
company or institutional lender (the "Mortgagee"), including
without limitation the notes or other obligations secured thereby
and any and all renewals, modifications,consolidations,
replacements or extensions of any such mortgages or the notes or
other obligations secured thereby, any easement or restriction of
record now in existence affecting the fee title or the leasehold
estate to the Leased Premises or any part thereof of the Lessor's
interest therein, so long as in the case of a mortgage either the
Mortgagee states in writing or the subject mortgage provides
that, for so long as there exists no uncured default under this
Lease by the Lessee, the Mortgagee shall not, in foreclosing
against or taking possession of the Leased Premises or otherwise
exercising its rights under such mortgage, disturb the Lessee's
possession of the Leased Premises.
(b) The Lessee also accepts this Lease subject and
subordinate to all instruments in the chain of fee title,
including any and all renewals, modifications,consolidations,
replacements or extensions of such instruments. In the event of
a sale under any mortgage or any note or other obligations
secured thereby, to which this Lease is subordinate, or a taking
of possession of the Leased Premises by the Mortgagee or other
person acting for or through the Mortgagee under any mortgage to
which this Lease is subordinate, the Lessee agrees that it shall
attorn to and recognize as the Lessor hereunder the party who,
but for this Lease, would be entitled to possession of the Leased
Premises.
20. Estoppel Certificates, Power of Attorney.
(a) The Lessor and the Lessee shall, at any time and
from time to time,within twenty (20) days following its receipt
of a written request from the other party or any mortgagee
thereof, execute, acknowledge and deliver to the other party or a
mortgagee a written statement certifying that this Lease is in
full force and effect and unmodified or, if modified, stating the
nature of such modification, certifying the date to which the
rent reserved hereunder has been paid, and certifying that there
are not, to the certifying party's knowledge, any uncured
defaults hereunder or specifying such defaults if any are
claimed. Any such statement may be relied upon by any prospective
purchaser or mortgagee of the Leased Premises. The Lessee also
agrees that, within twenty (20) days of the receipt of a request
from the Lessor or any Mortgagee, provide to such person copies
of Lessee's annual financial statements, which statements shall
be prepared on an audited basis in accordance with generally
accepted accounting principles by Lessee's certified public
accountant. The Lessee's failure to deliver any statement or
certificate required pursuant to this paragraph 20(a) within such
twenty (20) day period shall be a default pursuant to this Lease,
and, in the case of an estoppel certificate, the continuation of
such failure for a period of ten (10)days after the receipt by
the Lessee of written notice thereof from the Lessor shall be
conclusive upon the Lessee that this Lease is in full force and
effect and unmodified, and that there have not been any advance
payments of rent except that may have been made as security
hereunder and that there are no uncured defaults with respect to
the Lessor's performance hereunder.
(b) The Lessor and Lessee hereby grant the other
party a power of attorney, coupled with an interest, to complete
and submit on the Lessor or Lessee's behalf,as the case may be,
any estoppel certificate or similar document required pursuant to
paragraph 20(a), above.
21. Nonrecourse.
The Lessee agrees that the individual trustees and
beneficiaries of the Lessor shall have no personal liability
under this Lease except to the extent of their interest in the
Leased Premises. The Lessee further agrees that its sole right
of recourse in the event that it has any claim against the Lessor
shall be satisfied against such property.
22. Holding Over.
If the Lessee retains possession of the Leased
Premises or any part thereof after the termination of the Term,
the Lessee shall pay the Lessor rent at two (2) times the monthly
rate specified herein as the last month of the term hereof for
the time the Lessee remains in possession and, in addition
thereto, shall pay the Lessor for all damages,consequential as
well as direct, sustained by reason of the Lessee's retention of
possession. The provisions of this paragraph do not exclude the
Lessor's right to summary process or any other rights hereunder.
The Lessee shall indemnify and hold the Lessor harmless from and
against any and all loss or liability resulting from the failure
of the Lessee to surrender possession of the Leased Premises in
accordance with the terms and conditions of this Lease.
23. Brokers.
The Lessee hereby represents and warrants to Lessor
that it has dealt with no broker in connection with this lease
and there are no other brokerage commissions or other finders'
fees in connection herewith, except as set forth herein. The
Lessor and Lessee acknowledge that the Lessee has been
represented in this transaction by Kevin Hartigan, and the Lessor
and Lessee further agree that, despite Kevin Hartigan's
representation of the Lessee, the Lessor shall be responsible for
Mr. Hartigan's commission The Lessee hereby agrees to hold the
Lessor harmless from and indemnified against all loss or
damage(including, without limitation, the cost of defending same)
arising from any claim by any other broker claiming to have dealt
with the Lessee. The Lessor and the Lessee acknowledge that the
Lessor has been represented in this transaction by Duff & Phelps
Capital Markets Co., who shall be paid solely by the Lessor. The
Lessor agrees to hold the Lessee harmless from and indemnified
against all loss or damage (including, without limitation, the
cost of defending same) arising from any claim by any broker
claiming to have dealt with the Lessor.
24. Alterations and Additions.
(a) During the term of this Lease, the Lessee shall
have the right to make such alterations and improvements to the
Leased Premises as may be necessary or desirable for its
business, and do not affect the structure, foundation or exterior
walls of any building located on the Premises. For alterations
or improvements which cost over Twenty-Five Thousand Dollars
($25,000.00), the Lessee shall provide the Lessor with at least
ten (10)days prior written notice. Notwithstanding anything
contained herein to the contrary, the prior written consent of
the Lessor shall be required in instances where such alterations
or improvements affect the structure, foundation or exterior
walls of any building located on the Premises, which consent
shall not be withheld provided that Lessee provides Lessor with a
certification by Lessee's certified engineer or architect to the
Lessor to the effect that such alterations or improvements will
not negatively affect the Premises or any buildings thereon. The
Lessee shall be able to make additions to any structures on the
Premises only with the prior written consent of the Lessor, which
shall not be unreasonably withheld.
(b) The Lessee, before making any alterations,
additions or improvements,shall at its own expense obtain all
permits, approvals and certificates required by any governmental
authority and shall promptly deliver copies of same to the
Lessor. The Lessee will cause the Lessee's contractor's and
subcontractors to carry such worker's compensation,general
liability and personal and property damage insurance as the
Lessor may reasonably require. The Lessee agrees to hold the
Lessor free and harmless from any liability for labor or
materials supplied for such work and shall keep the Leased
Premises free from mechanics liens of any kind by obtaining
waivers thereof and by removing or bonding any lien filed within
ten (10) days from receipt of notice of the filing thereof.
(c) Any and all alterations, additions or
improvements to the Leased Premises made by the Lessee shall
become the property of the Lessor without payment therefor by the
Lessor.
25. Assignment and Sublease.
The Lessee shall not be entitled to assign this Lease
or make any sublease for the whole or any part of the Leased
Premises without the prior written consent of the Lessor, which
shall not be unreasonably withheld so long as the proposed
assignee acknowledges in writing that it shall be bound by the
terms and conditions of this Lease. In the event that the
proposed assignment or sublease of this Lease is in the context
of a sale of all or substantially all of Lessee's assets, or a
merger or consolidation to which the Lessee is a party, Lessor
may not withhold its consent for financial considerations if the
assignee or sublessee has a net worth of at least Twenty Million
Dollars ($20,000,000.00) at the time of any such assignment or
sublease. In the event of any such assignment or sublease, the
Lessee shall remain liable for all payments due hereunder.
Notwithstanding anything contained herein to the contrary, the
Lessor shall be entitled to assign this Lease,upon prior written
notice to the Lessor and upon the assignee's written agreement to
be bound by the terms of this Lease, to any entity which (a) is a
parent of Lessee (b) is a wholly-owned subsidiary of Lessee, or
(c) is otherwise controlled by or under common control with the
Lessee.
PAGE
<PAGE>
26. Waiver, Notices.
No consent or waiver, express or implied by the Lessor
to or of any breath of any covenant, condition or duty of the
Lessee shall be construed as a consent or waiver to or of any
other breach of the same or any other covenant, condition or
duty. Any notice from the Lessor to the Lessee or from the
Lessee to the Lessor shall be deemed to have been duly delivered
if hand-deliver or mailed by certified mail, addressed to the
Lessee at the Leased Premises or, if to the Lessor, at the place
from time to time established for the payment of rent, and the
customary certified mail receipt shall be conclusive evidence of
such service.
27. Expressions.
The expressions "Lessor" and "Lessee" or the pronoun
"it", referring either to the Lessor or the Lessee, shall be
deemed to refer to the actual Lessor or Lessee for the time being
as the case may be, and the context hereof may admit or require,
regardless of whether such Lessor or Lessee is a natural person,
a corporation, the trustees of a trust or some other firm or
entity.
28. Entire Agreement, Construction.
This Lease contains the entire agreement of the
parties hereto with respect to the subject matter hereof, and no
change or modifications hereof shall be valid unless made in
writing, signed by all of the parties hereto.
29. Short Form.
The parties hereto agree that upon request by either
party, the other party will execute whatever instruments may be
necessary for the recording of a short form of notice of this
Lease.
30. Construction.
In construing this Lease, feminine or masculine
pronouns shall be substituted for those of neuter form and vice
versa, and the plural for singular and singular for plural in any
place where the context may require.
31. Governing Law and Severability.
This Lease shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts.
If any provision of this Lease shall be determined to be invalid
or unenforceable under applicable law, such provision shall,
insofar as possible,be construed or applied in such manner as
will permit enforcement; otherwise, this Lease shall be construed
as if such provision had never been made a part hereof.
32. Headings.
The headings used herein are used only for convenience
of reference and are not to be considered a part of this Lease or
to be used in determining the intent of the parties hereto.
33. Waiver of Subrogation.
The Lessor waives, discharges and releases all rights
of recovery against the Lessee and its agents and employees for
any loss or damage to property of the Lessor located on the
Leased Premises or comprising a part thereof to the extent of any
loss or damage covered by any insurance contracts; provided, that
this waiver, discharge and release shall be operative only with
respect to loss or damage occurring during such time as the
insurance contracts expressly permit such waiver without
affecting or impairing any contract of the Lessor's rights to
recover thereunder. The Lessee waives, discharges and
releases,and will require any subtenants or assignees to waive,
discharge and release, all rights of recovery against the Lessor
and the agents and employees of the Lessor for loss or damage to
property of the Lessee or any subtenant or assignee located on
the Leased Premises to the extent of any loss or damage covered
by any insurance contract; provided, that this waiver, discharge
and release shall be operative only with respect to loss or
damage occurring during such time as such insurance contract
expressly permits such waiver without affecting or impairing such
contract or the Lessee's rights to recover thereunder.
PAGE
<PAGE>
IN WITNESS WHEREOF, the Lessor and the Lessee have signed
this Lease as a sealed instrument as of this 3rd day of July,
1995.
LESSOR,
_________________________________
As Trustee and Not Individually
_________________________________
As Trustee and Not Individually
ELXSI, a California Corporation
By_______________________________
Its
PAGE
<PAGE>
SCHEDULE OF EXHIBITS
EXHIBIT A - Description of Leased Premises
EXHIBIT B - Purchase and Sale Warranties
<PAGE>
EXHIBIT G
SUBLEASE
This Sublease is between ______________________, with a
usual place of business at 595 Cottage Street, Springfield,
Massachusetts 01104, hereinafter referred to as the"Sublessor",
and ELXSI, a California Corporation, d/b/a Bickford's Family
Restaurants, with a usual place of business located at 1330
Soldiers Field Road, Boston, Massachusetts 02135, hereinafter
referred to as the "Sublessee".
The Sublessor is the tenant under a lease (the "Lease")
dated _________________________ between the Sublessor as tenant
and ___________________ as landlord (the "Landlord"), pursuant to
which the Sublessor leases from the Landlord the premises located
at __________________________ (the "Leased Premises"). The
Leased Premises consist of a restaurant building (the
"Building"), a parking area and related site improvements. The
Leased Premises are more particularly described in Exhibit A,
which is attached hereto and made a part hereof. The Sublessor
desires to sublease the Leased Premises to the Sublessee, and the
Sublessee desires to sublease the Leased Premises from the
Sublessor, on the terms and conditions hereinafter set forth.
In furtherance of the foregoing and in consideration of the
mutual promises contained herein, the parties hereto agree as
follows:
1. Definition of Terms. Terms not otherwise defined in
this Sublease shall have the same meanings as set forth in the
Lease. A true and complete copy of the Lease is attached hereto
as Exhibit B. Except to the extent modified by the provisions of
this Sublease, the provisions of the Lease are hereby
incorporated in this Sublease by reference. The landlord or
lessor pursuant to the Lease is referred to herein as the
"Landlord". All references in the Lease to the Landlord, the
Tenant, or the like shall be deemed to refer to the Sublessor and
the Sublessee, respectively, unless the context of the Lease or
this Sublease otherwise requires,including without limitation
restrictions on Sublessor's consents set forth in paragraph
17,below. All references in the Lease to the Premises, or the
like, shall be deemed to refer to the Leased Premises that are
the subject of this Sublease.
2. Leased Premises.
(a) The Sublessor hereby leases to the Sublessee,
and the Sublessee hereby leases from the Sublessor, for the term
and upon the conditions contained in this Sublease,the Leased
Premises. Except to the extent otherwise provided herein, (i)
the Sublessor agrees that in connection with the Sublessee's
sublease of the Leased Premises from the Sublessor, the Sublessee
shall be entitled to the benefit of all of the Sublessor's rights
under the Lease with respect to the Leased Premises, including
without limitation any right of first refusal, option to
purchase, right to seek property tax abatements, right to contest
legal requirements, right to erect or alter signs, right to hold
over, or right to alter or add to structures on the Leased
Premises, and (ii) the Sublessee agrees that in connection with
its sublease of the Leased Premises from the Sublessor, the
Sublessee shall be subject to and pay for all of Sublessor's
obligations under the Lease except the obligation to pay
rent)relating to the Leased Premises.
(b) Except as otherwise expressly provided in this
Sublease, the Sublessor hereby reserves to itself (i) in the
event of a default by the Sublessee, as defined in paragraph 13
below, the right to maintain, use, repair and replace pipes,
ducts, wires, meters and any other equipment, machinery,
apparatus and fixtures located within or without the Leased
Premises; and (ii) the right to enter the Leased Premises for
repair and maintenance for emergency purposes at any time.
3. Use Restrictions.
The Sublessee may use the Leased Premises only as a
restaurant, unless the Sublessee obtains the prior written
consent of the Sublessor to any proposed alternate use,which
consent shall not be unreasonably withheld so long as the
proposed alternate use is not contrary to any applicable law or
regulation, or the terms of the Lease. The Sublessee shall not
use, suffer or permit the use by any person of the Leased
Premises for any purpose or in any manner which is contrary to
any applicable law or regulation, which may constitute a nuisance
or be offensive or which could cause injury or damage to the
Leased Premises.
4. Commencement Date; Condition of Leased Premises.
The term of this Sublease shall commence on July 3, 1995
(the"Commencement Date"). The Sublessee shall take possession of
the Leased Premises in "AS IS" condition on the Commencement
Date.
5. Term.
(a) The Sublessee shall hold the Leased Premises for
an initial term equal to the current effective term of the Lease,
which term expires on ___________________. The phrase "lease
year" as used herein shall mean a period of twelve (12)
consecutive calendar months commencing on July 3 of each year
during the term of this Sublease.
(b) To the extent that the Lease permits the
Sublessor to exercise an option to extend the term thereof,
Sublessor, upon prior written request of Sublessee as set forth
below, shall take any and all actions required to preserve and/or
exercise such option on behalf of or for the benefit of the
Sublessee. Any such action shall be taken at no cost to
Sublessor, and the Sublessee agrees to indemnify and hold
harmless the Sublessor from and against any and all claims,
demands, liability, damages, costs and expenses, including
without limitation reasonable attorney's fees, suffered or
incurred by Sublessor as a result of or in connection with the
taking of any such action. The Sublessor hereby grants the
Sublessee an option to extend the term of this Sublease (the
"Option") in accordance with the terms contained herein and the
terms contained in the Lease. The Option may only be exercised
upon the delivery by the Sublessee to the Sublessor of written
notice of its intention to exercise an Option and extend the term
hereof at least six (6) months prior to the ending date of the
then current term. Upon the delivery of such written notice and
provided that the Sublessee is not in default of any of its
obligations hereunder either at the time of the delivery of such
notice or at the ending date of the then current term, the term
of this Sublease shall be extended in accordance herewith and
upon all of the terms and conditions contained herein and in the
Lease without the necessity of executing any other instrument or
document, and the ending date of the term of this Sublease shall
be the last day of the applicable option period.
6. Rent.
(a) The Sublessor and the Sublessee agree that the
annual rent payable by the Sublessee during the first five (5)
years of this Sublease, shall be ________________ per year (the
"Initial Rent"), which Initial Rent shall increased by five
percent (5%) on the fifth anniversary of the date of this
Sublease (the "Increased Rent"). The Increased Rent shall be
increased by five percent (5%) over the immediately preceding
Increased Rent for each subsequent five (5) year period of this
Sublease, whether during the initial term or any extended term of
this Sublease.
(b) The annual rent payable by the Sublessee to the
Sublessor pursuant to paragraph 6(a) above shall be payable in
equal monthly installments at the office of the Sublessor or at
the Sublessor's agent, in advance, upon the first day of each
calendar month during the term of this Sublease. The rent for
any portion of a calendar month shall be appropriately adjusted.
(c) The Sublessee agrees to pay the rent provided for
in this Sublease as and when due including any additional rent,
as well as all sums of money, charges or other amounts required
to be paid by the Sublessee to the Sublessor or to another person
under this Sublease, all of which shall be deemed to be "rent" in
addition to the rent expressly provided for herein. All payments
of rent and additional rent shall be due and payable without
demand therefor unless otherwise expressly provided in this
Sublease. Non-payment of additional rent when due shall
constitute a default under this Sublease to the same extent, and
shall entitle the Sublessor to the same remedies, as non-payment
of rent.
(d) Sublessee agrees that any rent or additional rent
as required by this Sublease shall not be subject to any offset
or reduction, whether or not the Sublessee has a claim against
the Sublessor.
7. Additional Rent.
(a) Real Estate and Personal Property Taxes. To the
extent that the Sublessor is required by the Lease to pay such
amounts, the Sublessee shall pay to the Sublessor for each lease
year during the term of this Sublease, as additional rent, one
hundred (100%) percent of the amount of all real estate taxes and
assessments, including betterment assessments, levied with
respect to the Leased Premises (the "Real Estate Taxes").
Similarly, the Sublessee also shall be responsible for any and
all personal property taxes (the "Personal Property Taxes").
(b) Insurance. The Sublessee shall pay, as additional
rent, one hundred(100%) percent of the actual costs incurred by
the Sublessee to insure the Leased Premises as required in
paragraph 11, below (the "Insurance").
(c) Payment of Additional Rent. All additional rent
shall be paid within ten (10) days of the Sublessor's submittal
of a bill showing the amount of additional rent due to the
Sublessee.
(d) Net Sublease. It is the specific intention of the
Sublessor and the Sublessee that this Sublease shall be a "triple
net" Sublease and that the rental amounts set forth in this
Sublease shall be the net amount of money obtained by the
Sublessor in connection with the Sublease of the Leased Premises
by the Sublessor to the Sublessee, and the Sublessor shall not be
required to make any payments on account of, in connection with
or arising out of the use and occupancy of the Leased Premises,
perform any services or otherwise take any actions with respect
to the Leased Premises, all of which shall be the sole
responsibility of the Sublessee, other than as specifically set
forth herein or in the Lease. The Sublessee agrees to indemnify
and hold the Sublessor harmless from and against any such costs,
expenses and obligations.
8. Condition of Subleased Premises, Maintenance and
Repairs, Surrender.
(a) Except as otherwise set forth in a certain
Purchase and Sale Agreement dated as of May ___, 1995 by and
between the Abdow Corporation as Seller and the Lessee as Buyer
(the "Purchase and Sale Warranties"), neither the Sublessor nor
any related party of the Sublessor has made and the Sublessee has
not relied upon any representations or warranties, whether
express or implied, as to the condition of the Leased Premises or
their suitability for the Sublessee's use other than those which
may be specifically set forth in this Sublease. The Purchase and
Sale Warranties applicable to this Sublease are set forth in
Exhibit C, which is attached hereto and made a part hereof. The
Sublessee acknowledges that the Sublessee has had a full and
complete opportunity to inspect the Leased Premises. The
Sublessee accepts the Leased Premises in the condition existing
upon the Commencement Date.
(b) The Sublessee agrees that during the term of this
Sublease it shall, at its own expense, and to the extent required
by the Lease, make all necessary structural and other repairs to
the Leased Premises, including without limitation all repairs
required with respect to the roof and the exterior of the Leased
Premises, and it shall maintain the Building, any fixtures
therein and the plumbing, electrical and air conditioning and
heating systems servicing the Leased Premises in good working
order and condition. The Sublessee agrees that during the entire
term of this Sublease it shall, at all times, keep the Leased
Premises in a good, clean condition and in good order and repair
and it shall make all necessary repairs and perform all necessary
maintenance for such purposes. To the extent required by the
Lease, the Sublessee shall be responsible for all necessary
repairs, replacements and maintenance of all glass, floors and
walls. If the Sublessee fails, refuses or neglects to make such
repairs or perform such obligations or fails to prosecute
diligently such repairs to completion or completely perform such
obligations, the Sublessor shall give the Sublessee written
notice of Sublessee's failure, and, if, in such event, the
Sublessee does not perform such obligations or fails to prosecute
diligently such repairs to completion or completely perform such
obligations within twenty (20) days of the date of such notice,
the Sublessor may either declare the Sublessee to be in default
or make such repairs or perform such obligations at the expense
of the Sublessee, and such expenses shall be collectible as
additional rent. The Sublessee shall not permit the Leased
Premises to be overloaded,damaged, stripped or defaced nor suffer
any waste. Removal of trash and other debris,snow and ice from
the Leased Premises shall be the Sublessee's responsibility and
shall beat the sole expense of the Sublessee.
(c) The Sublessee agrees that during the term of this
Sublease it shall not discharge, release or cause or permit to be
discharged or released any hazardous or toxic wastes, materials,
pollutants, solvents or metals, as defined in any local, state or
federal statute, law, order, ordinance, rule or regulation
(collectively, "Hazardous Materials"), in gaseous, solid or
liquid form, into the ground, air, plumbing system, the solid
waste disposal receptacles of the Leased Premises or the sanitary
and/or storm drain system servicing the Leased Premises. The
Sublessee agrees that any such discharge or release of Hazardous
Materials, whether or not such discharge or release originated on
the Leased Premises, shall constitute an event of default under
this Sublease without further notice to the Lessee,unless the
Sublessee proceeds with all due diligence to take all necessary
steps to remediate such discharge in accordance with all
applicable federal, state and local laws and regulations and
unless the Sublessee continues such remediation efforts
diligently until completion incompliance with all such laws and
regulations, and in the event of a default hereunder the
Sublessee agrees that the Sublessor may take such actions as the
Sublessor, in its sole discretion, deems necessary or appropriate
in order to abate or mitigate such discharge or release and/or
the effect thereof. All such actions taken by the Sublessor
shall be taken in the Sublessor's sole discretion, and the
Sublessor shall not have any obligation to take any such actions.
The Sublessee agrees to indemnify and hold the Sublessor harmless
from and against any claims, demands, liability, damages, costs
and expenses, including without limitation reasonable attorneys'
fees, and fines or penalties, and all expenses for any
environmental engineering, remediation and disposal of any
Hazardous Materials, suffered or incurred by the Sublessor as a
result of or in connection with any discharge or release on the
Leased Premises of any Hazardous Materials, and all such amounts
shall be collectible from the Sublessee as additional rent. In
the event of a claim against the Sublessor pursuant to the terms
of this paragraph 8(c), the Sublessee shall provide counsel of
its choosing, at Sublessee's sole cost and expense, to defend
such claims. The Sublessor shall have the right to approve such
counsel, which approval shall not be unreasonably withheld.
(d) The Sublessor shall not be liable for any injury
to or interference with the Sublessee's business arising from or
caused by the making of any repairs in or to the Leased Premises
or to any appurtenances thereto or equipment therein permitted
hereunder. There shall be no abatement of rent because of such
repairs, alterations, or improvements, except as otherwise
expressly provided herein. The Sublessor agrees to use its best
efforts not to interfere unreasonably with the conduct by the
Sublessee of its business in the Leased Premises in connection
with any such repairs, alterations, additions or improvements.
9. Surrender.
At the end of the term of this Sublease or upon the
earlier termination of this Sublease, the Sublessee shall
surrender the Leased Premises to the Sublessor, together with all
alterations, additions and improvements thereto, in broom clean
condition and in good order and repair except for ordinary wear
and tear. Subject to the provisions of the Lease,if the
Sublessee is not then in default under the terms hereof, the
Sublessee shall have the right at the end of the term hereof to
remove any equipment, furniture, trade fixtures or other personal
property owned by or placed in the Leased Premises by the
Sublessee. The Sublessee shall promptly repair any damage to the
Leased Premises caused by such removal and restore the Leased
Premises to the condition existing upon the commencement date. In
the event that the Sublessee fails to repair and restore the
Leased Premises as provided herein, the Sublessor may perform or
cause such repairs and restoration to be performed at the
Sublessee's expense. In the event of the Sublessee's failure to
remove any of Sublessee's property from the Leased Premises,
Sublessor is hereby authorized, without liability to Lessee for
loss or damage thereto, and at the sole risk of Sublessee, to
remove any of the property at Sublessee's expense, or to retain
same under Sublessor's control or to sell at public or private
sale, without notice, any or all of the property not so removed
and to apply the net proceeds of such sale to the payment of any
sum due hereunder, or to destroy such property.
10. Compliance with Law.
The Sublessee agrees that it shall, at its own expense,
comply with all state and federal statutes, municipal
regulations, and all regulations and orders of any public
authority with respect to the use and occupancy of the Leased
Premises or with respect to any alteration or repair of the
Leased Premises undertaken by the Sublessee.
11. Indemnity and Liability Insurance.
(a) The Sublessee agrees that, unless caused by the
negligence of the Sublessor, it will (i) indemnify the Sublessor
against any injury, loss, claim or damage to any person or
property while on the Leased Premises; (ii) indemnify the
Sublessor against any injury, loss, claim or damage to any person
or property, wherever located, if caused by the negligent or
tortious acts of the Sublessee or its agents or servants; and
(iii) without limiting the generality of the foregoing, the
Sublessee specifically agrees that it will not make any claim
against the Sublessor based on the leakage of water, gas or other
substance from any pipes, sprinklers or equipment, or by reason
of the existence, use or misuse of water or plumbing, heating,
electrical, gas or other fixtures or equipment, unless due to the
negligence of the Sublessor.
(b) If the Sublessor shall, without fault or
negligence on its part, be made a party to any litigation
commenced by or against the Sublessee, the Sublessee shall
protect and hold the Sublessor harmless and indemnified from and
against any loss or damage sustained by the Sublessor as a result
thereof, and the Sublessee shall pay all costs and expenses,
including reasonable attorneys' fees, incurred or paid by the
Sublessor in connection with such litigation.
(c) The Sublessee shall procure and maintain in full
force and effect the same insurances, including but not limited
to Comprehensive General Liability and property damage insurance,
in the same amounts and terms, as the Sublessor is required to
maintain pursuant to the Lease. Notwithstanding anything
contained herein to the contrary, to the extent that the Lease
does not require such coverage, or requires coverage of a lesser
amount, the Sublessee shall procure and maintain in full force a
"Comprehensive General Liability" insurance policy. Under such
policy Bodily Injury limits shall not be less than$2,000,000 each
person, each occurrence and Property Damage limits shall not be
less than$2,000,000 each occurrence. Certificates of the
insurance effected under this paragraph, and certificates of any
and all renewals or replacements of this policy, shall be
delivered to the Sublessor as soon as possible after the
effective date of this Sublease. The policy or certificate shall
name the Sublessor as an additional insured, and shall provide
that the insurance shall not be canceled or reduced in amounts of
limits, or reduced in breadth of coverage without thirty (30)
days prior written notice to the Sublessor, and that no act or
omission on the part of the Sublessee shall invalidate such
policies as they apply to the Sublessor.
(d) The Sublessee shall provide and maintain in full
force any and all other insurance policies of types and limits
required of the Sublessor pursuant to the Lease, or normally
procured by persons engaged in the restaurant business where the
Leased Premises are located, in each case naming the Sublessor as
an additional insured and all such policies providing for at
least thirty (30) days prior notice to Sublessor of any material
charge thereto, that no act or omission on the part of the
Sublessee shall invalidate such policies that apply to the
Sublessor and securing any and all such policies from companies
licensed to do business where the Leased Premises are located.
(e) Unless otherwise provided by the Landlord pursuant
to the terms of the Lease, the Sublessee shall carry fire
insurance with extended coverage on Leased Premises in an amount
not less than the full insurable value of the Leased Premises,
exclusive of the foundations, or as required of the Sublessor
pursuant to the Lease, whichever is greater. Certificates of the
insurance effected under this paragraph, and certificates of any
and all renewals or replacements of this policy, should be
delivered to the Sublessor as soon as possible after the
effective date of this Sublease. The policy or certificate shall
name the Sublessor as an additional insured, shall provide that
the insurance shall not be canceled or reduced in the amounts of
limits, or reduced in breadth of coverage without thirty (30)
days prior written notice to the Sublessor, and that no act or
omission on the part of the Sublessee shall invalidate such
policies as applied to the Sublessor.
(f) The Sublessee shall not violate or permit
violation of any of the conditions and provisions contained in
any insurance policies provided for in this Sublease. The
Sublessee shall perform and satisfy the requirements of the
insurance company writing any such policies so that at all times
PAGE
<PAGE>
insurance companies of good standing shall be willing to write or
continue such insurance policies.
12. Utilities.
The Sublessor and the Sublessee agree that to the
extent required of the Sublessor pursuant to the Lease, the
Sublessee shall obtain and pay for all utilities used or consumed
by the Sublessee in connection with its use and occupancy of the
Leased Premises, including without limitation all gas, electric,
telephone, water, sewer and all other utilities,at the
Sublessee's sole cost and expense.
13. Destruction of Leased Premises.
(a) Subject to any and all requirements of the Lease,
if the Leased Premises are damaged by fire, the elements,
unavoidable accident or other casualty, the Sublessee shall at
its own expense cause such damage to be repaired within a
reasonable time, and any rent or additional rent required
hereunder shall continue unabated. In causing such damage to be
repaired, the Sublessee may use the proceeds of any insurance
policies required pursuant to the terms of paragraph 11, above,
to the extent that such proceeds are not required to pay claims
of any person arising out of the incident which caused such
damage to the Leased Premises.
(b) Subject to any and all requirements of the Lease,
in the event that during any effective term hereof the Leased
Premises are destroyed in whole or in part,which destruction is a
risk covered by any insurance provided for pursuant to the terms
of paragraph 11, above, and if the total amount of such loss
exceeds fifty percent (50%) of the full insurable value of the
Leased Premises, Sublessee shall make the loss adjustment with
the insurance company insuring the loss and on receipt of the
proceeds shall immediately pay such proceeds to a party
designated by the institutional lender holding a first mortgage
on the fee interest of the Leased Premises, or, if there is no
such first fee mortgage, by the institutional lender holding a
first mortgage on the leasehold interest of the Leased
Premises,or, if there is no such first leasehold mortgage, by the
institutional lender holding a first mortgage on the subleasehold
interest of the Leased Premises, or, if there is no such
subleasehold mortgage, by the Sublessor (the "Insurance
Trustee"). If the designated Insurance Trustee appointed by the
Sublessor is an institutional lender qualified to do business in
the Commonwealth of Massachusetts, no prior approval of the
Sublessee is required, but the Sublessor shall provide Sublessee
with written notice of the name and address of the Insurance
Trustee. If the Leased Premises destroyed are not covered by the
insurance described in paragraph 11, above, and Sublessee has the
obligation to restore the Leased Premises, the Sublessee shall
deposit with the Insurance Trustee the necessary funds to
complete the restoration. All sums deposited with the Insurance
Trustee shall be held for the following purposes and the
Insurance Trustee shall have the following powers and duties.
The sums deposited shall be paid in installments by the Insurance
Trustee to the contractor retained by the Sublessee as
construction progresses for payment of the cost of restoration.
A ten percent (10%) retention fund shall be established that will
be paid to the contractor on completion of restoration, payment
of all costs, expiration of all applicable liens, and proof that
the Leased Premises are free of all mechanics liens, notices of
contract and lienable claims.
Payment shall be made on presentation of certificates or
vouchers from the architect or engineer retained by Lessee
showing the amount due. If the Insurance Trustee, in its
reasonable discretion, determines that the certificates or
vouchers are being improperly approved by the architect or
engineer retained by Sublessee, the Insurance Trustee shall have
the right to appoint an architect or engineer to supervise
construction and to make payments on certificates or vouchers
approved by the architect or engineer retained by the Insurance
Trustee. The reasonable expenses and charges of the architect or
engineer retained by the Insurance Trustee shall be paid by the
Insurance Trustee out of the trust fund established hereunder.
If the sums held by the Insurance Trustee are not sufficient to
pay the actual cost of restoration, Sublessee, to the extent
required by this Sublease, shall deposit the amount of the
deficiency with the Insurance Trustee within thirty (30) days
after a request by the Insurance Trustee indicating the amount of
the deficiency. Any sums not dispersed by the Insurance Trustee
after restoration has been completed and final payment has been
made to Sublessee's contractor shall be delivered within fifteen
(15) days (after a demand made by either party on the Insurance
Trustee), by the Insurance Trustee to any mortgagee of the Leased
Premises, if required by the terms of the mortgage, and shall be
applied by such mortgagee to reduce the principal amount of any
loan or obligation underlying such mortgage. Any undisbursed
funds after compliance of the provisions of this paragraph 13(b)
shall be delivered to Sublessor to the extent of Sublessor's
contribution to the fund, and the balance, if any, shall be paid
to Sublessee. All actual costs and charges of the Insurance
Trustee shall be paid by Sublessee.
If the Insurance Trustee resigns, or for any reason is
unwilling to act or continue to act, Sublessor shall substitute a
new trustee in place of the designated Insurance Trustee. If such
substitute trustee is an institutional lender qualified to do
business in the Commonwealth of Massachusetts, no prior consent
of the Sublessee to such substitute trustee is required, but the
Sublessor shall provide Sublessee with written notice of the name
and address of such substitute trustee. Both parties shall
promptly execute all documents and perform all acts reasonably
required by the Insurance Trustee to perform its obligations
under this paragraph 13(b), including any indemnifications or
exonerations reasonably requested by the Insurance Trustee.
(c) Subject to any and all requirements of the Lease,
in the event the Leased Premises are damaged as set forth in
paragraph 13(a) above, but such damage occurs during the last two
years of the initial term of this Sublease or any Option Term
thereof, the Sublessee shall at its own expense cause such damage
to be repaired within a reasonable time, but in such event the
Sublessee shall not be required to spend more than the amount of
available insurance proceeds upon such repair. If such repair
exceeds the amount of available insurance proceeds, either the
Sublessor or the Sublessee may terminate this Lease and the
tenancy hereby created by giving to the other, within the thirty
(30) days following the date of such occurrence, written notice
of its election to terminate this Sublease thirty (30) days
thereafter, and in that event the rent and additional rent shall
be adjusted as the date which is thirty (30) days after the date
of such notice and neither the Sublessor nor the Sublessee shall
have any further liability pursuant to this Sublease, and all
insurance proceeds shall be remitted to the Sublessor.
(d) Notwithstanding anything contained herein to the
contrary, the Sublessor shall have no claim upon, nor right to,
any proceeds from any "business interruption"insurance procured
by the Sublessee for the Sublessee's benefit.
14. Default.
The occurrence of any of the following shall constitute
an event of default and breach of this Sublease by the Sublessee:
(a) The failure of the Sublessee to pay, within ten
(10) days of the date when due, any installment of rent or
additional rent due hereunder, any other sum required to be paid
by the Sublessee or any part of any of the foregoing;
(b) The failure of the Sublessee to observe or perform
any other provisions,covenants or obligations of this Sublease to
be observed or performed by the Sublessee,where such failure
continues for thirty (30) days after the receipt by the Sublessee
of written notice thereof from the Sublessor, or such longer time
as may be necessary to cure such event of default given the
nature of such event of default;
(c) The making by the Sublessee of any assignment for
the benefit of creditors; the adjudication that the Sublessee is
bankrupt, insolvent or unable to pay its debts; the filing by or
against the Sublessee of a petition to have the Sublessee
adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy unless, in the
case of a petition filed against the Sublessee, such petition is
dismissed within sixty (60) days after the filing thereof; the
appointment of a trustee or receiver to take possession of
substantially all of the Sublessee's assets located in the Leased
Premises or of the Sublessee's interest in this Sublease, unless
possession is restored to the Sublessee within thirty (30) days
after such appointment; or the attachment, execution or levy
against, or other judicial seizure of, substantially all of the
Sublessee's assets located in the Leased Premises or of the
Sublessee's interest in this Sublease, unless discharged within
thirty (30) days after issuance thereof.
(d) An event of default by the Sublessee pursuant to
any other lease or sublease between the Sublessee as a lessee or
sublessee, and any entity owned by, controlled by, or operated
for the benefit of, George and Ronald Abdow, or their successors
or assigns,as the lessor or sublessor. Notwithstanding anything
contained herein to the contrary, in the event that the Sublessee
assigns this Sublease with prior written consent of the Sublessor
pursuant to paragraph 22, below, the provisions of this paragraph
13(d) shall be deleted as they regard the Leased Premises herein,
and a default pursuant to this Sublease following such assignment
or subleasing shall not constitute a default under any other
lease or sublease between the Sublessor and the Sublessee.
15. Remedies.
Upon the occurrence of any event of default as
described in paragraph 14:
(a) The Sublessor may perform for the account of the
Sublessee any obligation with respect to which the Sublessee is
in default and immediately recover as additional rent any
expenditures made and the amount of any obligations incurred in
connection therewith plus interest at the prime rate of Fleet
Bank of Massachusetts, N.A.(or its successor) plus three percent
(3%) per annum for such expenditures from the date of any such
expenditures, together with a late charge for payments of rent
past due at the same rate of interest;
(b) The Sublessor, at its option, may serve notice
upon the Sublessee that this Sublease and the then unexpired term
hereof shall cease and expire and become absolutely void on the
date specified in such notice, which shall be not less than five
(5) days after the date of receipt of such notice without any
right on the part of the Sublessee to save forfeiture by payment
of any sum due or by the performance of any term, provision,
covenant, agreement or condition broken. This Sublease and the
term hereof, as well as the right, title and interest of the
Sublessee hereunder shall, upon the effective date of such
notice, wholly cease and expire and become void in the same
manner and with the same force and effect, except as to the
Sublessee's liability, as if the date fixed in such notice were
the date provided herein for the expiration of the term of this
Sublease. Upon the delivery of such notice of termination the
Sublessee shall immediately quit and surrender to the Sublessor
the Leased Premises and in any event, the Sublessor may
forcefully remove,without breach of the peace, the property of
the Sublessee without being liable either in damages or in a
criminal prosecution. No such expiration or termination of this
Sublease shall relieve the Sublessee of its liability and
obligations under this Sublease, whether or not the Leased
Premises shall be relet. If the Sublessee fails to remove any
equipment,furniture, trade fixtures or other property prior to
any such repossession by the Sublessor such equipment, furniture,
fixtures and other property shall be deemed abandoned by the
Sublessee and shall become the property of the Sublessor;
(c) The Sublessor may, at any time after the
occurrence of any event of default, re-enter and repossess the
Leased Premises or any part thereof and attempt, in its own name
as agent for the Sublessee if this Sublease has not been
terminated or on its own behalf if this Sublease has been
terminated, to relet all or any part of such Leased Premises for
and upon such terms and to such persons, firm or corporation and
for such period or periods as the Sublessor, in its sole
discretion, shall determine, including a term beyond the
termination of this Sublease. The Sublessor shall not be
required to accept any tenant offered by the Sublessee or observe
any instruction given by the Sublessee with respect to such
reletting. The cost of reasonable brokerage and legal fees
expended by the Sublessor in connection with the reletting of the
Leased Premises as well as the cost of repairing,restoring or
redecorating the Leased Premises shall be charged to and be
payable by the Sublessee as additional rent hereunder, and any
sums collected by the Sublessor from any new tenant shall be
credited against the balance of the rent due hereunder for the
remainder of the term of this Sublease. The Sublessee shall pay
to the Sublessor monthly,on the days when the rent would have
been payable under this Sublease, the amount of rent and
additional rent due hereunder less the amount obtained from any
such new tenant;
(d) The Sublessor may take any actions against the
Sublessee permitted by the Lease to be taken by the Landlord
against the Sublessee in the event of a default pursuant to the
Lease.
(e) The rights and remedies given to the Sublessor in
this Sublease are distinct, separate and cumulative remedies, and
no one of them, whether or not exercised by the Sublessor, shall
be deemed in exclusion of any of the others.
16. Notice of Claims.
In the event of any claim, cause of action or suit is
made or brought against the Sublessee of which the Sublessee
shall have knowledge, arising from the occupancy of the Sublessee
of or pertaining to the Leased Premises, the Sublessee shall
immediately notify the Sublessor thereof in writing.
PAGE
<PAGE>
17. Sublease.
This is a sublease, and except as otherwise expressly
provided herein, this Sublease is expressly made subject to all
of the terms and conditions of the Lease. The Sublessee agrees
to use the Leased Premises in accordance with the terms of the
Lease, and in connection therewith the Sublessee agrees that it
shall not do or omit to do anything which would constitute a
breach of or default under any of the provisions of the Lease.
In the event that the Lease is terminated, for any reason
whatsoever, this Sublease shall terminate simultaneously. In the
event of a conflict between the terms of this Sublease and the
terms of the Lease, the terms of the Lease shall prevail.
Notwithstanding anything contained herein to the contrary, in the
event that the terms of the Lease require prior consent of the
Landlord prior to an action by the Sublessee, the Sublessor's
consent shall not be required in addition to the consent of the
Landlord unless otherwise specifically set forth in this Sublease
or as specifically required by the terms of the Lease.
Notwithstanding anything contained herein to the
contrary, the Sublessee agrees to provide Sublessor with any and
all information reasonably necessary for the Sublessor to comply
with the terms of the Lease, including without limitation, and if
required by the terms of the Lease, annual sales reports for each
twelve (12) month period ending March 31, and monthly reports of
register receipts.
18. Quiet Enjoyment.
The Sublessor covenants and agrees that upon the
Sublessee's paying the rent herein reserved and performing and
observing all the other covenants to be performed and observed on
the part of the Sublessee, the Sublessee may use and occupy the
Leased Premises throughout the full term of this Sublease without
any disturbance by any person whatsoever claiming by or through
the Sublessor, except as otherwise provided herein and subject,
however, to the terms and conditions of the Lease and any
mortgage which may now or hereafter affect the Leased Premises.
19. Non-disturbance, Attornment and Subordination
Agreements, Landlord's Consent, Waiver and Estoppel Certificates.
To the extent permitted pursuant to the Lease, and upon
the reasonable request of the Sublessee, the Sublessor shall
request from the Landlord, the Sublessor's mortgagees and/or the
Landlord's mortgagees, if any, (a) a Non-disturbance, Attornment
and Subordination Agreement in substantially the form of Exhibit
D, which is attached hereto and made a part hereof, and (b) a
Landlord's Consent, Waiver and Estoppel Certificate in
substantially the form of Exhibit E, which is attached hereto and
made a part hereof.
PAGE
<PAGE>
20. Nonrecourse
The Sublessee agrees that the individual trustees and
beneficiaries of the Sublessor, if any, shall have no personal
liability under this Sublease except to the extent of their
interest in the Leased Premises. The Sublessee further agrees
that its sole right of recourse in the event that it has any
claim against the Sublessor shall be satisfied against such
property.
21. Agreement Not to Amend Lease.
The Sublessor agrees that during the term of this
Sublease it shall not amend any substantive term of the Lease
without the prior written consent of the Sublessor, which consent
shall not be unreasonably withheld.
22. Brokers.
The Sublessee hereby represents and warrants to
Sublessor that it has dealt with no broker in connection with
this sublease and there are no other brokerage commissions or
other finders' fees in connection herewith, except as set forth
herein. The Sublessor and Sublessee acknowledge that the
Sublessee has been represented in this transaction by Kevin
Hartigan, and the Sublessor and Sublessee further agree that,
despite Kevin Hartigan's representation of the Sublessee, the
Sublessor shall be responsible for Mr. Hartigan's commission.
The Sublessee hereby agrees to hold the Sublessor harmless from
and indemnified against all loss or damage (including, without
limitation, the cost of defending same) arising from any claim by
any other broker claiming to have dealt with the Sublessee. The
Sublessor and the Sublessee acknowledge that the Sublessor has
been represented in this transaction by Duff & Phelps Capital
Markets Co., who shall be paid solely by the Sublessor. The
Sublessor agrees to hold the Sublessee harmless from and
indemnified against all loss or damage (including, without
limitation, the cost of defending same) arising from any claim by
any broker claiming to have dealt with the Sublessor.
23. Assignment and Sublease.
The Sublessee shall not be entitled to assign this
Sublease or make any sublease for the whole or any part of the
Leased Premises unless such assignment or sublease is in
accordance with the terms of the Lease and with the prior written
consent of the Sublessor, which shall not be unreasonably
withheld so long as the proposed assignee acknowledges in writing
that it shall be bound by the terms and conditions of this
Sublease. In the event that the proposed assignment or sublease
of this Sublease is in the context of a sale of all or
substantially all of Sublessee's assets, or a merger or
consolidation to which the Sublessee is a party, subject to the
terms of the Lease, Sublessor may not withhold its consent for
financial considerations if the assignee or sublessee has a net
worth of at least Twenty Million Dollars ($20,000,000.00) at the
time of any such assignment or sublease. In the event of any
such assignment or sublease, the Sublessee shall remain liable
for all payments due hereunder. Notwithstanding anything
contained herein to the contrary, the Sublessee shall be entitled
to assign this Sublease, if so permitted by the Lease, upon prior
written notice to the Sublessor and upon the assignee's written
agreement to be bound by the terms of this Sublease, to any
entity which (a) is a parent of Sublessee (b) is a wholly-owned
subsidiary of Sublessee, or (c) is otherwise controlled by or
under common control with the Sublessee.
24. Waiver, Notices.
No consent or waiver, express or implied by the
Sublessor to or of any breath of any covenant, condition or duty
of the Sublessee shall be construed as a consent or waiver to or
of any other breach of the same or any other covenant, condition
or duty. Any notice from the Sublessor to the Sublessee or from
the Sublessee to the Sublessor shall be deemed to have been duly
delivered if hand-deliver or mailed by certified mail, addressed
to the Sublessee at the Leased Premises or, if to the Sublessor,
at the place from time to time established for the payment of
rent, and the customary certified mail receipt shall be
conclusive evidence of such service.
25. Expressions.
The expressions "Sublessor" and "Sublessee" or the
pronoun "it", referring either to the Sublessor or the Sublessee,
shall be deemed to refer to the actual Sublessor or Sublessee for
the time being as the case may be, and the context hereof may
admit or require, regardless of whether such Sublessor or
Sublessee is a natural person, a corporation,the trustees of a
trust or some other firm or entity.
26. Entire Agreement, Construction.
This Sublease contains the entire agreement of the
parties hereto with respect to the subject matter hereof, and no
change or modifications hereof shall be valid unless made in
writing, signed by all of the parties hereto.
27. Short Form.
The parties hereto agree that upon request by either
party, the other party will execute whatever instruments may be
necessary for the recording of a short form of notice of this
Sublease.
PAGE
<PAGE>
28. Construction.
In construing this Sublease, feminine or masculine
pronouns shall be substituted for those of neuter form and vice
versa, and the plural for singular and singular for plural in any
place where the context may require.
29. Governing Law and Severability.
This Sublease shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts.
If any provision of this Sublease shall be determined to be
invalid or unenforceable under applicable law, such provision
shall, insofar as possible, be construed or applied in such
manner as will permit enforcement; otherwise,this Sublease shall
be construed as if such provision had never been made a part
hereof.
30. Headings.
The headings used herein are used only for convenience
of reference and are not to be considered a part of this Sublease
or to be used in determining the intent of the parties hereto.
31. Waiver of Subrogation.
The Sublessor waives, discharges and releases all
rights of recovery against the Sublessee and its agents and
employees for any loss or damage to property of the Sublessor
located on the Leased Premises or comprising a part thereof to
the extent of any loss or damage covered by any insurance
contracts; provided, that this waiver, discharge and release
shall be operative only with respect to loss or damage occurring
during such time as the insurance contracts expressly permit such
waiver without affecting or impairing any contract of the
Sublessor's rights to recover thereunder. The Sublessee waives,
discharges and releases, and will require any subtenants or
assignees to waive, discharge and release, all rights of recovery
against the Sublessor and the agents and employees of the
Sublessor for loss or damage to property of the Sublessee or any
subtenant or assignee located on the Leased Premises to the
extent of any loss or damage covered by any insurance
contract;provided, that this waiver, discharge and release shall
be operative only with respect to loss or damage occurring during
such time as such insurance contract expressly permits such
waiver without affecting or impairing such contract or the
Sublessee's rights to recover thereunder.
PAGE
<PAGE>
IN WITNESS WHEREOF, the Lessor and the Lessee have
signed this Lease as a sealed instrument as of this 3rd day of
July, 1995.
SUBLESSOR,
________________________________
As Trustee and Not Individually
________________________________
As Trustee and Not Individually
ELXSI, a California Corporation
By_____________________________
Its
<PAGE>
SCHEDULE OF EXHIBITS
EXHIBIT A - Description of Leased Premises
EXHIBIT B - The Lease
EXHIBIT C - Purchase and Sale Warranties
EXHIBIT D - Form Non-disturbance, Attornment and Subordination
Agreement
EXHIBIT E - Form Landlord's Consent, Waiver and Estoppel
Certificate
<PAGE>
EXHIBIT H
DISCLOSED BUILDING AND RELATED CONDITIONS
NONE
<PAGE>
EXHIBIT I
BILL OF SALE
BILL OF SALE, dated [Closing Date], 1995 (this "Bill of
Sale"), by and between Abdow Corporation, a Massachusetts
corporation ("Assignor"), and the Bickford's Family Restaurants
division of ELXSI, a California corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, under that certain Purchase and Sale Agreement,
dated May 31, 1995(the "Purchase Agreement"), among Assignor,
George T. Abdow, Ronald J. Abdow and Assignee, Assignor has
agreed to sell, transfer and assign to Assignee, and Assignee has
agreed to purchase and receive from Assignor, certain properties
and assets more particularly described hereinbelow;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by
Assignor and Assignee:
1. Purchased Assets. Assignor does hereby sell, transfer,
grant, convey, assign and set over to Assignee, and its
successors and assigns forever, and Assignee does hereby receive
from Assignor, free and clear of any and all liens, defects in
title, covenants, claims of third parties, security interests,
mortgages, pledges, and encumbrances of any kind or nature
whatsoever, all of Assignor's right, title and interest in and to
the property, assets and rights described on Annex 1 attached
hereto and made part hereof (the "Purchased Assets").
2. Assigned Contracts. Assignor does hereby sell,
transfer, grant, convey, assign,delegate and set over to
Assignee, and its successors and assigns forever, and Assignee
does hereby receive, assume and agree to pay, perform, satisfy
and discharge in accordance with their respective terms, all of
the rights, title, interest and obligations of Assignor in, to
and under the agreements and contracts listed on Annex 2 attached
hereto and made part hereof(the "Assigned Contracts").
3. No Liabilities Assumed. Assignee is not taking the
Purchased Assets or the Assigned Contracts subject to, and
Assignee is not assuming, any debts, liabilities, duties or
obligations of the Assignor (or any affiliate thereof) (other
than the obligation to provide future performance of the
obligations of Assignor under the Assigned Contracts), and any
such assumption, to the maximum extent permitted by law, is
hereby expressly disclaimed and negated.
4. The Purchase Agreements. Nothing contained in this Bill
of Sale shall be deemed to enlarge, diminish or otherwise affect
any of the rights, obligations, covenants, agreements,
representations or warranties of the Assignor, Assignee or the
other parties contained in the Purchase Agreement or in that
certain Agreement, it being expressly agreed that the same shall
survive the execution and delivery hereof to the extent provided
in the Purchase Agreement.
5. Further Assurances. Assignor will, at any time and from
time to time after the date hereof, on the request Assignee, do,
execute, acknowledge and deliver, or cause to be done, executed,
acknowledged or delivered, all such further acts, deeds,
assignments,transfers, conveyances, powers of attorney or
assurances as may be reasonably required for the better
transferring, assigning, conveying, granting, assuring and
confirming to Assignee,or for the aiding and assisting in the
collection of or reducing to possession by Assignee, of any of
the Purchased or Assigned Contracts, or to vest in Assignee all
of Assignor's right,title and interest in and to the Purchased
Assets and the Assigned Contracts, or to otherwise enable
Assignee to realize upon or otherwise enjoy the Purchased Assets
and Assigned Contracts.
6. Successors and Assigns. This Bill of Sale shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
7. Governing Law; Jurisdiction and Venue. This Bill of
Sale shall be construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts.
9. Counterparts. This Bill of Sale may be executed in any
number of counterparts,each of which shall be deemed to be an
original document but all of which together shall constitute a
single document.
IN WITNESS WHEREOF, the undersigned have executed this Bill
of Sale on the date first above written.Assignor:
Assignee: Assignee:
ABDOW CORPORATION ELXSI
By:_______________________ By:______________________
Name: Name:
Title: Title:
<PAGE>
Annex 1
(to Bill of Sale)
Purchased Assets
-----------------
[See Exhibit C to the Purchase Agreement]
<PAGE>
Annex 2
(to Bill of Sale)
Assigned Contracts
[See Exhibit B to the Purchase Agreement]
<PAGE>
Exhibit 10.19
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment") is entered into as of July
3, 1995 between ELXSI, a California corporation ("Borrower"), and
BANK OF AMERICA ILLINOIS(formerly Continental Bank N.A.)
("Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to an Amended and
Restated Loan and Security Agreement dated as of October 30, 1992
(as heretofore amended, the "Loan Agreement"); and
WHEREAS, Borrower desires Lender to amend the Loan Agreement
in certain respects.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
Terms defined in the Loan Agreement and not otherwise
defined herein are used herein as therein defined.
SECTION 2. AMENDMENTS TO LOAN AGREEMENT.
2.1 The definition of "Credit Reduction Amount" in Section
1.1 of the Loan Agreement is hereby amended and restated to read
in its entirety as follows:
"Credit Reduction Amount" means, (i) for each Credit
Reduction Date during 1995, an amount equal to $280,000 and
(ii) for each Credit Reduction Date thereafter, an amount
equal to $370,000, in each case subject to adjustment as provided
in Section 2.1.
2.2 The definition of "Revolving Credit Amount" in Section
1.1 of the Loan Agreement is hereby amended and restated to read
in its entirety as follows:
"Revolving Credit Amount" means, from and after July 3,
1995, $15,840,000, as adjusted after such date pursuant to
this Agreement, including pursuant to Sections 2.1.3 and 2.1.4.
SECTION 3. CONDITIONS PRECEDENT.
The amendments to the Loan Agreement set forth in Section 2
of this Amendment shall become effective on such date (the
"Effective Date") when the following conditions precedent have
been satisfied:
3.1 Receipt of Documents. Lender shall have received all
of the following, each duly executed and dated the date hereof,
in form and substance satisfactory to Lender:
(a)Amendment. An original of this Amendment duly executed
by Borrower.
(b) Certificate. A certificate, dated the date hereof
and signed by the President or a Vice President of
Borrower, as to the matters set forth in Section 3.2.
(c) Opinion. An opinion of Dechert Price & Rhoads,
counsel to Borrower, in form and substance satisfactory
to Lender.
(d) Real Property. With respect to each parcel of
Real Property owned or leased by Borrower not
previously mortgaged to Lender pursuant to the Loan
Agreement, other than those parcels listed on Schedule
I hereto:
(i) A Mortgage duly executed by Borrower;
(ii) Copies of all documents of record
concerning such parcel as shown on the commitment for
the ALTA Loan Title Insurance Policy;
(iii) Except with respect to leased Real
Property in shopping centers, a survey acceptable to
Lender in Lender's reasonable exercise of judgment; and
(iv) Original or certified copies of
insurance policies (or certificates therefor) issued to
Borrower for "all risk" property, casualty and public
liability insurance for such parcel and, if such parcel
is in a flood hazard area, flood insurance, with
standard noncontributory mortgagee clauses or
endorsement in favor of Lender (it being understood
that the amount, terms of coverage and insurer shall be
reasonably acceptable to Lender).
(e) Other. Such other documents as Lender may
reasonably request.
3.2 Warranties True and Absence of Defaults. (i) No Event
of Default or Unmatured Event of Default shall have occurred and
shall be continuing as of the Effective Date (after giving effect
to this Amendment) an (ii) the warranties of Borrower contained
in Section 4 of the Loan Agreement shall be true and correct as
of the Effective Date, with the same effect as though made on
such date (except (x) to the extent changed by circumstances
permitted by the Loan Agreement and (y) for such warranties which
relate solely to an earlier date and were true and correct on and
as of such date).
3.3 Restructuring Fee. Lender shall have received from
Borrower a non-refundable restructuring fee of $75,000.
SECTION 4. MISCELLANEOUS.
4.1 Warranties True and Absence of Defaults. In order to
induce Lender to enter into this Amendment, Borrower hereby
warrants to Lender that, as of the date hereof and the Effective
Date:
(a) The warranties of Borrower contained in Section 4
of the Loan Agreement are true and correct as of the
date hereof and the Effective Date (after giving effect
to this Amendment) with the same effect as though made
on each such date (except (x) to the extent changed by
circumstances permitted by the Loan Agreement and (y)
for such warranties which relate solely to a specific
earlier date and were true and correct as of such
date).
(b) No Event of Default or Unmatured Event of Default
exists as of each such date.
4.2 Expenses. Borrower agrees to pay on demand all costs
and expenses of Lender (including the reasonable fees, charges
and expenses of counsel and allocated cost of staff counsel for
Lender) in connection with the preparation, negotiation,
execution,delivery and administration of this Amendment and all
other instruments or documents provided for herein or delivered
or to be delivered hereunder or in connection herewith. In
addition, Borrower agrees to pay, and save Lender harmless from
all liability for, any documentary, stamp or other similar taxes
which may be payable in connection with the execution or delivery
of this Amendment, the borrowings under the Loan Agreement, as
amended hereby, and the execution and delivery of any instruments
or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided in
this Section 4.2 shall survive any termination of this Amendment
or the Loan Agreement as amended hereby.
4.3 Governing Law. This Amendment shall be a contract made
under and governed by the internal laws of the State of Illinois.
4.4 Counterparts. This Amendment may be executed in any
number of counterparts, and by the parties hereto on the same or
separate counterparts, and each such counterpart, when so
executed and delivered, shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
4.5 Reference to Loan Agreement. Except as amended hereby,
the Loan Agreement shall remain in full force and effect and is
hereby ratified and confirmed in all respects. On and after the
effectiveness of the amendment to the Loan Agreement accomplished
hereby, each reference in the Loan Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each
reference to the Loan Agreement in any Note and in any Related
Agreement, or other agreements, documents or instruments executed
and delivered pursuant to the Loan Agreement, shall be deemed a
reference to the Loan Agreement, as amended hereby.
4.6 Successors. This Amendment shall be binding upon the
parties hereto and their successors and permitted assigns.
4.7 Title Insurance Policies. Within 45 days after the
Effective Date, Borrower shall deliver to Lender, with respect to
each parcel of Real Property owned or leased by Borrower not
previously mortgaged to Lender pursuant to the Loan Agreement,
other than those parcels listed on Schedule I hereto, an ALTA
Loan Title Insurance Policy issued by an insurer acceptable to
Lender and insuring Lender's Lien on such parcel (or Borrower's
leasehold interest therein) in an amount and with a title
insurance company acceptable to Lender and containing such
endorsements as Lender may reasonably require (it being
understood that the amount of coverage, exceptions to coverage
and status of title set forth in the policy shall be reasonably
acceptable to Lender). Failure to comply with this Section 4.7
shall constitute an Event of Default under the Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
ELXSI
By:_____________________________
Title:__________________________
BANK OF AMERICA ILLINOIS (formerly
Continental Bank N.A.)
By:______________________________
Title:___________________________
PAGE
<PAGE>
Schedule I
1. Lincoln Plaza, Worcester, Massachusetts
2. West Springfield, Massachusetts
3. Vernon, Connecticut
4. Northampton, Massachusetts
5. Greenfield, Massachusetts
