SECOND ASSIGNMENT, ASSUMPTION AND

AMENDMENT OF LEASE

 

THIS SECOND ASSIGNMENT, ASSUMPTION, AND AMENDMENT OF LEASE (this "Second Assignment") is entered into as 24th the day of April, 2015, (herein, the "Effective Date") by and among, Bruxie, LLC, a Delaware limited liability company, successor in interest to Cheesesteak Connection #4, LLC, a Colorado limited liability company (herein, "Assignor"), SHQ Glendale, LLC, a Colorado limited liability company (herein, “assignee"), The Robford Company, LLC, a Colorado limited liability company (herein, "Landlord"), Dean Simon, individually ("Original Guarantor"), and Southern Concepts Restaurant Group, Inc., a Colorado corporation and Jay W. Roth, individually ("New Guarantor").

RECITALS:

 

 

 

 

 

E.     Subject to the terms and conditions contained herein, Landlord hereby consents to the assignment of the Lease to Assignee, and joins in this Second Assignment in order to evidence its agreement with, and consent to, the amendments to the Lease more fully set forth herein.

 

NOW, THEREFORE,  FOR VALUE RECEIVED, and in consideration of the mutual agreements and obligations set forth in this Second Assignment and the Bill of Sale, and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor hereby, as of the "Commencement Date" (defined below), bargains, sells, grants, conveys, transfers, and assigns to

assignee, and assignee hereby, as of the Commencement Date, accepts and assumes from Assignor, all of Assignor's right, title, obligations and interest in and to the Lease.

 

THIS SECOND ASSIGNMENT is made on the following terms, covenants, and conditions:

 

 

 

3.          In addition to the payments of Paragraph 2 above, assignee shall pay Assignor the purchase price of Two Hundred Thousand Dollars ($200,000) for the Leasehold interest and personal property as shown on Exhibit B, due and payable in the following manner: (i) Seventy-Five Thousand Dollars ($75,000) within five (5) days of the Effective Date, (ii) Forty-Two Thousand Dollars ($42,000) on May 1, 2015, (iii) Forty-Two Thousand Dollars ($42,000) on June 1, 2015, and (iv) the remaining payment of Forty-One Thousand Dollars ($41,000) on July 1, 2015; Further,  on the Effective Date, assignee shall issue stock in Southern Concepts Restaurant Group, Inc., a Colorado corporation to Assignor in an amount having a cash value as of the Effective Date equal to Twenty Thousand Eight Hundred and Thirty-Three Dollars ($20,833). Assignor shall vacate the Premises and deliver the Premise to assignee on April 24, 2015 (the "Commencement Date") in the following condition: assignee shall accept the Promises in its "as-is", "where is” condition, provided however, oil furniture, fixtures and equipment listed on the Bill of Sale and conveyed herein to assignee by Assignor shall remain in the Promises upon the remittance of the Assignment Fee. assignee shall transfer all utilities into Assignee's name no later than May 5, 2015. Assignor has paid Landlord the Minimum Guaranteed Rental payments and all of the additional rental payments in collection with the Premises under the Lease for the month of March, 2015, and on the Commencement Date Assignor shall pay Landlord the Minimum Guaranteed Rental payments and all of the additional rental payments in connection with the Promises under the Lease for the month of April, 2015. Effective on the Commencement Date Assignee shall be responsible for all of the obligations for payment of the Minimum Guaranteed Rental payments and all of the additional rental payments in connection with the Promises under the Lease, and in addition, assignee shall be responsible for all utility bills for services provided on or after the Commencement Date.

 

 

Sean Kulzer) ("Assignee's Broker"), and Assignor and Assignee hereby represents and warrants to the other, that, to its knowledge, no  other broker, agent or finder (a) negotiated or was instrumental in negotiating or consummating this Second Assignment on its behalf, or/and (b) is or might be entitled to a commission or compensation in connection with this Second Assignment. Assignor shall pay any commissions or fees that are payable to Assignor's Broke1·with respect to this Second Assignment in accordance with the provisions of a separate commission contract. Assignee shall pay any commissions or fees that are payable to Assignee's Broker with respect to this Second Assignment in accordance with the provisions of a separate commission contract. Assignor and Assignee affirmatively state that Landlord bas no obligation to pay any commissions in connection with this Second Assignment. Assignor and Assignee agree to indemnify and hold Landlord harmless from any claims for any commissions which may be done and owing in connection with this Second Assignment.

 

6. Prior to the Commencement Date, and in accordance with Section 10.2 of the Lease, Assignor shall remove its signage from the fascia above the Premises and repair any damage caused by said removal. Within sixty (60)  days following the Commencement Date, Assignee shall install, at Assignee's sole cost and expense, its prototype ·storefront sign on the fascia above the Premises in accordance with all applicable governmental laws, codes, ordinances and regulations, and in accordance with the provisions contained in the Lease, and further subject to the Landlord's signage criteria for the Shopping Center.

 

 

(i)

The reference to "Tenant" under the Lease shall refer to:

SHQ Glendale, LLC

 

(ii)

The reference to "Tenant's mailing/Notice address" shall refer to:

 

SHQ Glendale, LLC

2 North Cascade Avenue, Suite 1400

Colorado Springs, CO 80903

Attn:  Heather Atkinson

Email: heather@southernconcepts.com

 

(iii)

The reference to title "Tenant's Trade Name" shall refer to:   "Southern Hospitality"

 

 

(v)

Tenant's "Permitted Use" shall refer to:   The operation of an upscale, quick service, Barbeque restaurant serving any and all of the following: brisket, pulled pork and otherwise BBQ sandwiches ("BBQ Style Fare"), together with salads and traditional BBQ side dishes such as potato salad, baked beaus, and coleslaw, alcoholic and non-alcoholic beverages; and such other items as shown on Tenant's Menu. Any changes in the Permitted Use shall require the prior approval of  Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant acknowledges and agrees that, notwithstanding anything to the contrary contained herein, it may not derive more than 10% of its annual gross revenues from the sale of salads.

 

(vi)

Tenant's "Exclusive Use" shall refer to:   Provided that Tenant is not in default hereunder beyond any applicable notice and cure period, Landlord shall not lease space in the Shopping Center to any entity whose "Primary Business" is BBQ Style Fare. For the purposes of this paragraph only, "Primary Business" shall mean fifteen percent (15%) or more of menu items are BBQ Style Fare. Such Exclusive Use shall not apply to any existing leases or any extensions thereof as of the Effective Date. If any third party commences an action against Landlord arising from the enforcement of Tenant's Exclusive Use, and provided Landlord is not in default hereunder beyond any applicable notice and cure period, then Tenant shall indemnify, defend and hold Landlord harmless from and against any and all such claims in connection therewith or arising therefrom.

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	ASSIGNEE:
		SHQ GLENDALE, LLC a Colorado limited liability company
		By:	/s/ Mitchell Roth                        4/23/15
		Name:	Mitchell Roth
		Title:	President

 

 

 

 

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a.

Guarantor hereby covenants and agrees with Landlord:

i.

To make the due and punctual payment of all rent, monies and charges payable under the Lease which accrue under the Lease on or after the Commencement Date (as defined in the Second Assignment);

b.

In the event of a default under the Lease, Guarantor waives any right to require Landlord to:

i.

Proceed against Assignee and/or Assignor (as defined in the Second Assignment) or pursue any rights or remedies with respect to the Lease;

ii.

Proceed against or exhaust any security that Landlord holds from assignee;

iii.

Pursue any remedy whatsoever in Landlord's power; or

c.

Guarantor hereby expressly waives any right of setoff or compensation against amounts due under this Guaranty and waives all notice of nonperformance, nonpayment, nonobservance or default on the part of Assignee and/or Assignor of the terms, covenants, or conditions and provisions of the Lease.

 

d.

Without limiting the generality of the foregoing, the liability of Guarantor under this Guaranty shall not be deemed to have been waived, released, discharged, impaired, or affected by reason of any waiver or failure to enforce any of the obligations of the Assignee and/or Assignor under the  Lease,  or assignment of the Lease by  Landlord  Assignee and/or Assignor, or the subletting of the demised premises by the Assignee and/or Assignor, or by the expiration of the Lease term, or the release or discharge of Assignee and/or Assignor in any receivership, bankruptcy, winding up or other creditors' proceedings, or the rejection, disaffirmance or disclaimer of the Lease by any party in any action or proceeding, or any extension, modification, amendment or alteration of the Lease whatsoever, including but not limited to relocation of Assignee and/or Assignor to substitute premises, and shall continue with respect to the periods prior thereto and thereafter, for and with respect to the term originally contemplated and expressed in the Lease. The liability of the Guarantor shall not be affected by any repossession of the demised premises by Landlord, provided, however, the net payments received by Landlord after deducting all costs and expenses of repossession and/or reletting the same, shall be credited from time to time by Landlord to the account of Guarantor and Guarantor shall pay any balance owing ta Landlord from time to time immediately upon ascertainment.

e.

This Guaranty shall be one of payment and performance and not simply of collection. Notwithstanding the use of the word “indemnify” or "guaranty" each guarantor or indemnitor of the Lease shall be jointly and severally liable for the obligations owing pursuant to the terms of the Lease.

f.

Guarantor shall, without limiting the generality of the foregoing, be bound by this Guaranty in the same manner as though Guarantor were named in the  ease as Assignee.

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g.

All of the terms, agreements and conditions of this Guaranty shall extend to and be binding upon Guarantor, his heirs, executors, administrators, successors and assigns, and the holder of any mortgage to which the Lease may be subject and subordinate from time to time.

 

h.

Landlord may, without notice, assign or transfer this Guaranty, in whole or in part, and no such assignment or transfer shall operate to extinguish, diminish, waive, release, discharge or otherwise affect Guarantor's liability hereunder.

 

i.

Guarantor agrees to pay to Landlord all reasonable  attorneys' fees and costs or other expenses incurred by Landlord in any legal proceedings for collection, attempted collection, enforcement, attempted enforcement, negotiation or otherwise arising under the Lease or this Guaranty.

 

j.

GUARANTOR HEREBY WAIVES HIS/HER/ITS RIGHT TO DEMAND A TRIAL BY JURY IN ANY CIVIL ACTION THAT INVOLVES THE ENFORCEMENT OF THIS GUARANTY OR THE ENFORCEMENT OF THE LEASE.

The current Lease term expires on July 31, 2020 (the "Current Expiration Date").

 

Notwithstanding anything to the contrary contained herein, Jay W. Roth's obligations hereunder are limited to those obligations accruing under the Lease on or . after the Commencement Date (as defined in the Second Amendment) and continuing through the Current Expiration Date, July 31, 2020 UNLESS the Lease term is extended beyond the Current Expiration Date by way of holdover, exercise of renewal option, or any other means and there has been a default under the Lease beyond an applicable notice and cure period prior to the Current Expiration Date, whether or not the same was cured, in which case Jay W. Roth's obligations hereunder shall continue through any extensions or option periods.

 

Notwithstanding anything to the contrary contained herein, Southern Concepts Restaurant Group, Inc.'s obligations hereunder shall remain in full force and effect in the event that the Lease term is extended beyond the Current Expiration Date, by way of holdover, exercise of renewal option, or any other means.

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"GUARANTOR"

 

/s/ Jay W. Roth
Jay W. Roth
SSN:
Address:	15975 Winding Trail Road Colorado Springs, Colorado 80908
Phone:	719.494.2225

 

 

SOUTHERN CONCEPTS RESTAURANT GROUP, a Colorado corporation

integrity

BANK & TRUST

WIRE INSTRUCTIONS

All incoming and outgoing wires go through our account with Banker's Bank of the West with the following instructions:

If an incoming wire is to credit an account within Integrity Bank & Trust, the following information must be available:

 

If you have any questions, please contact us at 719-484-0077.

1275 Village Ridge Point, Monument CO 80132

Phone 719-484-0077 Fax 719-488-9160 Toll Free 877-677-2265

www.integritybankandtrnst. com

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