United States District Court, D. Massachusetts
RENAISSANCE DEVELOPMENT CORP. Plaintiff,
BUCA V, LLC, BUCA, INC., BUCA RESTAURANTS, INC., BUCA C, LLC, and PLANET HOLLYWOOD INTERNATIONAL, LLC, Defendants.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC.
Sorokin United States District Judge
the defendants leased a property in Shrewsbury,
Massachusetts from Renaissance Development Corp.
(“Renaissance”) for the purposes of opening a
restaurant. Thereafter, the parties entered into multiple
amendments into the lease, with additional defendants acting
as guarantors. After a first round of litigation in this
Court, the parties entered into a Forbearance Agreement in
April 2016 which altered some of the provisions of the lease.
In August 2018, Renaissance initiated a second suit in this
Court alleging that the defendants breached both the lease
and the Forbearance Agreement. For the reasons that follow,
Renaissance's motion for partial summary judgment is
owns a property located in Shrewsbury, Massachusetts
(“the premises”). Doc. No. 33 ¶ 3.
Renaissance and Buca V are parties to a Commercial Property
Lease (“the lease”) in which Renaissance rents
the premises to Buca V for the purpose of opening a
restaurant. Id. The following portions of the
lease are relevant to the resolution of the pending motion.
5.5(a) of the lease requires the lessee, Buca V,
to make all repairs, alterations, additions, or replacements
to the [premises] required by any law or ordinance or any
order or regulation of any public authority because of
Lessee's use of the [premises], to keep the [premises]
equipped with all safety appliances and equipment so required
because of such use; to procure any licenses and permits
required for any such use; to pay all municipal, county, or
state taxes assessed against the leasehold interest
hereunder, and to comply with the orders and regulations of
all governmental authorities . . .
Doc. No. 25-1 at 11. Section 5.5 (g) requires the lessee
not to abandon or vacate the [premises] during the Initial
Term or any Extended Term; provided, however, that Lessee
shall not be deemed to be in violation of this covenant if
Lessee shall vacate the [premises] for a period not to exceed
six (6) months so long as Lessee is actively attempting to
assign or sublet the Lease and the Lessee is not otherwise in
default of this Lease. This section shall not apply to any
period related to an event of damage by fire, casualty,
condemnation or otherwise, nor to any period in which the
restaurant is closed because Lessee is changing the concept
of said restaurant.
Id. at 12. Additionally, the lease contains a cure
provision which sets forth the timeline upon which the lessee
is required to cure any breaches of the lease. Section 15.2
[i]f: (a) Lessee shall fail to perform or observe any other
term or condition contained in this Lease and such failure is
not cured within thirty (30) days after notice thereof or
such longer period of time as is necessary to effect the cure
so long as Lessee has used and continues to use all due
diligence to effect the cure . . . (d) then, the Lessor shall
have the rights and remedies provided for in Section 15.3.
Id. at 24-25.
The First and Second Amendments
August 2010, Renaissance and BRI (who was at that time the
lessee) entered into the First Amendment. Doc. No. 33 ¶
7. “Among other things, the First Amendment changed the
rent payable by BRI to [Renaissance] and extended the term of
the Original Lease from May 31, 2011 to May 31, 2020.”
Id. ¶ 8. The First Amendment also contained a
provision which stated that “[e]xcept as amended
hereby, the Lease is ratified and remains in full force and
effect.” Doc. No. 25-2 at 7.
January 2014, BRI assigned its rights and interest in the
lease to Buca V. Doc. No. 33 ¶ 10. In September 2014,
Renaissance and Buca V entered into the Second Amendment.
Id. ¶ 11. “The primary purpose of the
Second Amendment was to comply with an earlier request by
[Buca V], Buca and BRI to remove [another premises] from the
Lease.” Id. ¶ 12. Under the Second
Amendment, Buca V remains liable for the full amount of rent
owed under the lease. Id. ¶ 14. The Second
Amendment also contained a provision stating that the lease
remained in full force and effect, except as amended therein.
Id. ¶ 15.
same time that Renaissance and Buca V executed the Second
Amendment, Buca and BRI entered into a Guaranty (“2014
Guaranty”) whereby they guaranteed performance of the
lease, as amended. Id. ¶ 13.
The First Litigation
a few months, Buca V ceased making payments under the lease
and vacated the premises. Id. ¶¶ 16-17.
Thereafter, Renaissance filed an action in this Court
alleging that Buca V breached the lease and that Buca and BRI
breached their obligations under the 2014 Guaranty.
Id. ¶ 18. This Court entered judgment in favor
of Renaissance on all counts. Id. ¶ 19. The
defendants appealed the judgment, but then settled their
dispute by entering into a Forbearance Agreement with
Renaissance on April 1, 2016. Id. ¶¶
21-22. The Forbearance Agreement was signed by a
representative from the five defendants in this matter. Doc.
No. 25-7 at 8. Planet Hollywood and Buca C also executed a
guarantee (“Forbearance Guarantee”) of Buca
V's obligations to Renaissance under the lease and the
Forbearance Agreement. Doc. No. 25-8.
Forbearance Agreement includes a provision in which
Renaissance agrees to allow Buca V to pay $25, 000 per month
(“Monthly Forbearance Payments”), rather than the
previously agreed-upon monthly rent of $36, 299.23
(“Monthly Rent Payments”). Doc. No. 25-7 at 4.
However, the Forbearance Agreement also provides that if any
of the defendants default under the lease or the Forbearance
Agreement, then Renaissance's acceptance of the lower
monthly payment shall be voided. Id. In that case,
the defendants will be liable to Renaissance for the