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Exhibit 10.13
505 UNIVERSITY EAST
OFFICE LEASE
505 CENTER, L.P. (with its successors, called "Landlord") and 505 Entertainment,
Ltd. (with its successors, called "Tenant"), in consideration of their mutual
covenants and agreements in this Lease, agree as follows, all as of January 31,
1994.
1. SUMMARY AND DEFINITIONS. The following definitions apply in
this Lease:
(a) TERM: Three (3) years, beginning on April 1, 1994
("Commencement Date") or any deferred Commencement
Date that may apply under Exhibit C. Landlord and
Tenant will execute a certificate specifying the
revised Commencement Date and the last day of the
Term ("Termination Date"), should the Commencement
Date change from the date stated in this Section
1.(a).
(b) BASE RENT: $60,000 per annum ($.65 per rentable
square foot per month), in equal monthly installments
of $5,000.
(c) PERMITTED USE: Restaurant, nightclub, billiards, and
related activity.
(d) EXHIBITS AND RIDERS: Exhibits A, B, C, D, E, and
F and Rider 1, attached hereto, all a part of this
Lease.
(e) PREMISES: The space on the 1st floor of the Building
shown as Suites 307 and 309 of the Leased Premises on
Exhibit E. Premises does not include any mechanical,
electrical, telephone and similar rooms which service
the Building; janitor closets; elevator, pipe, and
other vertical shafts and ducts; flues; stairwells
(except any stairwells exclusively serving the
Premises); area above acoustical ceiling; and areas
not shown on Exhibit E as part of the Premises. The
rentable area of the Premises is approximately 7,720
square feet.
(f) BUILDING: The office building known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
with a total rentable area of approximately 34,701
square feet; together with the land described in
Exhibit A, on which said building is situated, and
with the building(s), parking facilities, and all
other structures, improvements, fixtures and
appurtenances from time
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to time on, appurtenant to or servicing that land
and the building.
(g) SECURITY DEPOSIT: $0
(h) PARKING AREA: All parking spaces not designated as
received shall be accessible to Tenant.
(i) BROKERS: ▇▇▇▇▇▇ & Wyndham, Inc. as Landlord's broker,
and N/A as Tenant's broker.
(j) TENANT'S SHARE: The rentable area of the Premises
divided by 95% of the rentable area of the Building.
The agreed-upon rentable areas of the Premises and
the Building shall be stated above, and Tenant's
Share shall be 23%. For any year in which either of
such areas materially changes, Tenant's Share and
Excess Operating Costs shall be based on the average
rentable area during such year.
(k) EXCESS OPERATING COSTS: For any calendar year, the
amount by which Operating Costs for that year exceed
the 1994 Operating Costs. If the rentable area of the
Building in that year differs from the rentable area
of the Building in 1994, then the 1994 Operating
Costs shall be appropriately adjusted.
(l) OPERATING COSTS: See Section 4(b)(i).
(m) ADDITIONAL RENT: See Section 4(b).
(n) EMPLOYEES: Employees, agents, partners, officers,
licensees, invitees, contractors or guests.
(o) ALTERATIONS: Alterations, improvements or additions
(including fixtures) in or to the Premises.
(p) ASSIGNMENT: See Section 10.
(q) ASSIGNEE: See Section 10.
(r) GUARANTOR: Any Guarantor of the obligations to this
Lease.
(s) MORTGAGE: Any mortgage or deed of trust covering any
part of the Building or any interest in Landlord.
(t) MORTGAGEE: Any holder of a Mortgage.
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(u) EVENT OF DEFAULT: See Section 22(a).
2. DEMISE. Landlord leases the Premises to Tenant for the Term, and Tenant
takes the same, all upon and subject to the terms and conditions of
this Lease.
3. CONSTRUCTION OF PREMISES. Tenant will construct the Premises in
accordance with Exhibit C, the Construction Agreement.
4. RENT. Tenant will pay the following to Landlord as rent, for the Term
plus any earlier period of Tenant's occupancy:
(a) BASE RENT. Base Rent, due in advance on the first day of each
calendar month (prorated, for any partial month, based on a
30-day month). The first full monthly installment will be paid
upon execution of this Lease.
(b) ADDITIONAL RENT. Tenant's Share of Excess Operating Costs for
each calendar year. This amount ("Additional Rent") will be
calculated as follows:
(i) "Operating Costs" means any and all costs, expenses
and disbursements of every kind and character which
Landlord incurs, pays or becomes obligated to pay in
connection with its ownership interest in the
Building and associated land and parking, or the
operation, maintenance, management, repair,
replacement, and security thereof. All the foregoing
shall be adjusted as provided herein. Operating Costs
specifically includes real property taxes,
assessments and other similar governmental charges,
computer and accounting costs, costs reasonably
incurred to reduce or contest items of Operating
Costs, and the cost of insurance, including
loss-of-rents coverage. Operating Costs excludes
costs required to be capitalized (other than such
costs for capital improvements or equipment which can
reasonably be expected to reduce Operating Costs, or
to comply with governmental requirements imposed
after the date of this Lease, all of which shall be
amortized over the useful life of the improvements or
equipment); expenses paid by net proceeds of
insurance; alterations attributable solely to tenants
of the Building other than Tenant; the cost of
electricity reimbursed to Landlord by tenants of the
Building; debt service payments; and depreciation.
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(ii) Landlord may require payments (on the first day of
each month) which, by the end of each year, will
total Landlord's estimate of Additional Rent for the
year. By the following April 1, or as soon thereafter
as practical, Landlord will furnish to Tenant a
statement of Operating Costs and Additional Rent for
such year, and any amounts owing or overpaid on
Additional Rent for that year shall within thirty
(30) days be paid by Tenant to Landlord, or refunded
or credited by Landlord to Tenant, as the case may
be. If the term commences on a day other than the
first day of the month or calendar year, or
terminates on a day other than the last day of the
month or calendar year, then Tenant shall be required
to pay only a prorata portion of the installments and
adjustments of rent due for such month or year. This
obligation shall survive termination or expiration of
this Lease.
(iii) In the event the Building is not fully occupied
during any year of the Term, an adjustment shall be
made in computing the Operating Costs for such year
as though the Building had been fully occupied during
the year and as though the entire Building had been
provided with the Building services described in
Section 5.
5. SERVICES PROVIDED.
(a) BUILDING SERVICES. Tenant shall pay the cost of electricity,
telephone, water, garbage, and sewer to the Premises during
the term of this Lease. Landlord shall furnish routine
maintenance, painting and electric lighting service for all
public areas and special service areas of the center in the
manner and to the extent deemed by Landlord to be standard.
Landlord may, in its sole discretion, provide additional
services not enumerated herein. Failure by Landlord to any
extent to furnish these defined services or any other services
not enumerated, or any cessation thereof, shall not render
Landlord liable in any respect for damages to either person or
property, be construed as an eviction of Tenant, work an
abatement of rent or relieve Tenant from fulfillment of any
covenant in this Lease. Should any of the equipment or
machinery break down, or for any cause cease to function
properly, Tenant shall use reasonable diligence to repair the
same promptly, but Tenant shall have no claim for rebate on
account of any interruption in service occasioned from the
repairs. Landlord reserves the right from time to time to make
changes in
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the delivery of utilities and service to the common areas of
the center.
(b) JANITORIAL SERVICE. Landlord shall not furnish janitorial
services to the leased premises but will through its Manager
provide services, as often as deemed necessary by Landlord, to
clean the public areas of the center and premises.
6. ACCEPTANCE OF PREMISES. By taking possession of the Premises, Tenant
shall conclusively evidence that (subject only to matters noted in any
punchlist which Tenant may concurrently deliver to Landlord) the
Premises are fully completed and are suitable for Tenant's purposes;
that the Building and every part of it, including the Premises, is in
good and satisfactory condition; and that Tenant waives any defects
therein.
7. USE OF PREMISES.
(a) PERMITTED USE. Tenants will use and occupy the Premises only
for the Permitted Use, using and maintaining them in a clean,
careful, safe, sanitary and proper manner.
(b) LIABILITY FOR MISUSE. Tenant will pay for any damage to the
Premises or to any other part of the Building caused by any
negligence or willful act or any misuse or abuse by Tenant or
its Employees.
(c) LIMITATION ON USE. Tenant will not cause anywhere in the
Building, or permit in the Premises: (i) any activity or thing
contrary to applicable law, ordinance, regulation or insurance
regulation; or which is in any way immoral or extra hazardous
or could jeopardize the coverage of normal insurance policies
or increase their cost; (ii) waste or nuisance, defacing or
injury of the Building, or any activity causing odors
perceptible outside the Premises; (iii) retail sales,
purchases or gifts of any merchandise, or storage therefor;
(iv) overloading of the floors or the structural or mechanical
systems of the Building. Tenant will conduct its business and
occupy the Premises and shall not create any nuisance or
interfere with, annoy, or disturb any other tenants in the
Building or the Landlord in its management thereof, and shall
not injure the reputation of the Building. Tenant shall not
erect or place any item (including but not limited to signs)
in, upon, or visible from the exterior or the common areas of
the Building, unless approved by Landlord.
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(d) EXCLUDED USES. No portion of the Premises shall be used for a
dental office, veterinary clinic, pet groomer, retailer of pet
supplies, or a hair and nail salon.
8. TENANT'S ALTERATIONS, REPAIR AND MAINTENANCE.
(a) TENANT'S MAINTENANCE OBLIGATIONS. Tenant will maintain the
Premises in good and usable condition and promptly make, at
its expense, all necessary non-structural repairs and
replacements to the Premises and perform and pay for the
operation, maintenance and repair of fixtures and of
supplemental air conditioning units; provided, however, that
any such payments required during the first ninety (90) days
following the commencement of this Lease will be paid by the
Landlord, except for those expenses incurred due to the gross
negligence of Tenant. Tenant will immediately pay the cost of
repair and replacement due to damage or injury to the Building
by Tenant or its Employees.
(b) APPROVAL OF TENANT ALTERATIONS. Tenant will not make or permit
Alterations without Landlord's prior written consent.
(c) TENANT ALTERATIONS. Alterations will be performed, if Landlord
elects, by Landlord or a contractor designated by Landlord, at
Tenant's cost and expense. All Alterations will immediately be
Landlord's property and a part of the Building without
compensation to Tenant but subject to Tenant's rights
hereunder, and Tenant will promptly notify Landlord of the
value thereof for insurance purposes. Subject to the
provisions of Section 12, Tenant will hold Landlord and its
Employees forever harmless against any and all claims,
expenses (including taxes) and liabilities of every kind which
may arise out of or in any way be connected with any work
performed by or on behalf of Tenant. Alterations, repairs and
replacements by Tenant shall be in accordance with all
applicable laws, rules and ordinances and the requirements of
any insurance carrier, and be of a quality and class at least
equal to the original work, performed in a good and
workmanlike manner with good grades of materials. Landlord
shall have the opportunity to inspect this work.
9. LIENS PROHIBITED. Tenant will not permit any lien on any part of the
Building allegedly resulting from any work or materials furnished or
obligations incurred by or for Tenant. If any such lien is filed,
Tenant will promptly (i) discharge any such lien of record or (ii) if
such lien is
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filed in connection with a disputed matter, Tenant may instead procure
and maintain a bond around such lien to Landlord's satisfaction. Tenant
agrees to indemnify Landlord for any damages or costs sustained by
Landlord which are caused by the existence of any such lien placed on
any part of the Building by, through, or under Tenant. Neither this
Lease nor any request or consent of Landlord to the labor, materials or
obligations, is a consent to such a lien.
10. ASSIGNMENT; SUBLETTING. Except as expressly permitted hereby, Tenant
may not assign, transfer, or encumber this Lease or any estate or
interest therein, or permit the same to occur, or sublet or grant any
right of occupancy for any part of the Premises, or permit such
occupancy by any parties other than Tenant and Employees. (The
foregoing, and ny changes in the terms thereof, are collectively called
an "Assignment", and the other party thereto the "Assignee".) Any
prohibited Assignment is voidable by Landlord.
(a) CONDITIONS OF ASSIGNMENT. Landlord's consent to an Assignment
is in Landlord's sole discretion. Such consent shall be
effective only if in writing. Consent by Landlord to any
Assignment shall not be a waiver of Landlord's rights as to
any subsequent Assignments. Any approved sublease shall be
expressly subject to the terms and conditions of this Lease.
In the event of any Assignment, the assigning Tenant and any
Guarantor will remain fully responsible and liable for all of
Tenant's obligations under this Lease, and the Assignee will
automatically be jointly and severally liable to the extent of
the Assigned portion of the Premises. Upon an Event of
Default, as hereinafter defined, while an Assignment is in
effect, Landlord may collect directly from the Assignee all
sums becoming due to Tenant under the Assignment and apply
this amount against any sums due Landlord by Tenant, and
Tenant authorizes and directs any Assignee to make payments
directly to Landlord upon notice from Landlord. No direct
collection by Landlord from any Assignee shall constitute a
novation or release of Tenant or any Guarantor, a consent to
the Assignment or a waiver of the covenant prohibiting
Assignments.
(b) REQUEST TO ASSIGN OR SUBLET; CANCELLATION. With any request
for consent to an Assignment, Tenant will submit a copy of the
Assignment to Landlord and notify Landlord of the proposed
commencement date of the Assignment, the name of the proposed
Assignee (accompanied by evidence of the nature, character,
and financial condition of Assignee and its business), and
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all terms and conditions (including rental) of or relating to
the Assignment. Within thirty (30) days of such request (or
any time, if no request was given), Landlord, by notice to
Tenant, may terminate this Lease as to the portion of the
Premises that would have been affected by the Assignment, in
which event Tenant shall be relieved of all obligations under
this Lease as to such portion of the Premises, including
rentals hereunder in proportion to the portion of the Premises
affected thereby, as of the stated commencement date of the
Assignment.
(c) EXCESS RENT. If the consideration Tenant receives for any
Assignment exceeds the rent payable under this Lease for the
same period and portion of the Premises, the excess shall be
immediately due and payable by Tenant to Landlord as
additional rent under this Lease.
(d) CHANGE OF CONTROL. Tenant will notify Landlord of any change
in control of Tenant or any Guarantor, or any sale of more
than half its assets outside the ordinary course of business.
Concurrently, Tenant will submit current financial statements.
(e) CONVEYANCE BY LANDLORD. Landlord may transfer, assign and
convey any part of or interest in the Building or any of its
rights under this Lease. If Landlord assigns its rights under
this Lease, no further liability or obligation shall
thereafter accrue against Landlord under this Lease, and
Tenant will attorn and look solely to Landlord's successor in
interest for performance of this Lease.
11. LANDLORD'S LIABILITY. Tenant will protect its property and Employees,
and insure the same to its own satisfaction, and accordingly waives any
claim against Landlord, its affiliates and managing agent and their
respective Employees for loss or damage to any property, injury to any
person, or injury to Tenant's business from any cause. This waiver
shall not apply in the event of claims attributable to the gross
negligence of Landlord, except for the following type of loss: (i)
damage to any property other than normal office furniture, fixtures and
equipment and (ii) incidental or consequential damages including
business loss. Subject to the foregoing, Tenant for itself and its
Employees, assumes all risk of damage to property, proximate or remote;
all personal property on the Premises is at Tenant's risk only, and
Landlord shall not be liable for any damage to or theft of such
property.
12. TENANT'S INDEMNIFICATION. Tenant will indemnify and hold and save
Landlord, its affiliates and managing agent and
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their respective Employees harmless from all fines, suits, losses,
costs, expenses, liabilities, claims, demands, actions, damages and
judgments (for purposes of this Section 12 only, "Liabilities")
suffered by, recovered from or asserted against the indemnitee, of
every kind and character, resulting from any breach, violation or
nonperformance by Tenant of any provision of this Lease; or from injury
or damage to person or property incident to, arising out of, or caused
(proximately or remotely, in whole or part) by any act, omission,
negligence or misconduct by Tenant or its Employees, or in any other
way from their occupancy or use of the Premises. Tenant agrees that the
indemnity contained herein shall not be applicable if the Liabilities
suffered are caused in whole or in part by the negligence of the
indemnitee except in instances involving the following type of loss:
(i) damage to property other than normal office furnishings, fixtures
and equipment (including computer equipment), and (ii) incidental or
consequential damages and to business loss. If any such proceeding is
brought against Landlord or its Employees, Tenant will retain counsel
reasonably satisfactory to Landlord to defend Landlord or its Employees
(as the case may be) at Tenant's sole cost and expense. All such costs
and expenses, including attorneys' fees and court costs, shall be a
demand obligation owing by Tenant to Landlord. Tenant's obligations
under this Section shall survive the termination or expiration of this
Lease.
13. INSURANCE. Tenant will maintain as a minimum the following insurance
during the entire Term:
(a) comprehensive general liability insurance with combined single
limits not less than $1,000,000, for personal injury or death
and property damage occurring in or about or related to the
use of the Premises.
(b) "all risk" insurance for the full replacement cost of all
Tenant's property on the Premise and all fixtures. Unless this
Lease is terminated upon damage or destruction, the proceeds
of such insurance will be used to restore the foregoing.
All policies required hereunder will be issued by carriers rated A VII
or better by the then current Best's Key Rating Guide and authorized to
do business in the State of Texas. The policies shall name Landlord as
an additional insured, with primary coverage non-contributing to any
insurance Landlord may carry, and shall provide that coverage cannot be
cancelled or materially changed except upon 30 days prior written
notice to Landlord. Tenant shall furnish Landlord with an original
certificate of insurance evidencing the required coverage upon
execution of this Lease.
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14. NO SUBROGATION. If either party suffers a loss of or damage to property
in the Premises, in the Building, or related to this Lease, which is
covered by valid insurance policies (or would be covered by policies
which are required hereunder or which would be required but for any
specific provisions for self-insurance), that party waives any claim
therefor which it may have against the other party of its Employees
(excluding contractors), regardless of whether negligence or fault of
the latter party or its Employees (excluding contractors) may have
caused the loss or damage. Each party will have its appropriate
insurance policies properly endorsed, if necessary, to prevent any
invalidation of insurance coverage required hereunder due to these
mutual waivers.
15. FIRE AND CASUALTY. If the Premises or any part thereof is damaged by
fire or other casualty, Tenant will promptly notify Landlord.
(a) CANCELLATION OF LEASE; RESTORATION OF BUILDING. If the
Building or the Premises is damaged by fire or other casualty
to the extent that substantial alteration or reconstruction is
required in Landlord's sole opinion, or if any Mortgagee
requires that the insurance proceeds payable as a result of
the fire or other casualty be applied against the mortgage
debt, Landlord may terminate this Lease by notifying Tenant
within sixty (60) days after the later of the date the damage
occurs, or the date Landlord is so notified by its Mortgagee,
in which event the rent under this Lease will be abated as of
the date of the fire or other casualty. If this Lease is not
terminated, then within seventy-five (75) days after the fire
or other casualty, or such greater period as may be reasonably
necessary, Landlord will commence to repair and restore the
Premises and any portion of the Building required for access
to the Premises, and will diligently complete the same, but
Landlord is not required: (i) to expend more for such repair
of the Premises than the net insurance proceeds (after any
payment required under any Mortgage) reasonably allocable to
the Premises, or (ii) to rebuild, repair or replace any of
Tenant's furniture or furnishings or of fixtures and equipment
removable by Tenant under the provisions of this Lease.
(b) CASUALTY LOSS DURING LAST YEAR OF LEASE. If the Premises or
the Building is damaged by fire or other casualty during the
last twelve (12) months of the Term, whether or not the damage
requires substantial repair and reconstruction, Landlord may
cancel this
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Lease as of the date of the fire or casualty by notice to
Tenant within thirty (30) days thereafter.
(c) ABATEMENT OF RENT. Landlord will allow Tenant a proportional
abatement of rentable square feet of the Premises that is
unfit for occupancy due to fire or other casualty. Except as
expressly provided to the contrary in this Lease, this Lease
will not terminate, and Tenant will not be entitled to damages
or to any abatement of rent or other charges, as a result of a
fire or other casualty, repair or restoration.
16. CONDEMNATION. If all or substantially all of the Building or of the
Premises is taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain
or is sold to the condemning authority in lieu of condemnation, then
this Lease will terminate when physical possession is taken by the
condemning authority. If a lesser but material portion of the Building
is thus taken or sold (whether or not the Premises are affected
thereby), Landlord may terminate this Lease by notice to Tenant within
sixty (60) days after the taking or sale, in which event this Lease
will terminate when physical possession is taken by the condemning
authority. If the Lease is not terminated, rent payable will be reduced
by the amount allocable to any portion of the Premises so taken or
sold, and Landlord, at its sole expense, will restore the affected
portion of the Building to substantially its former condition as far as
feasible, but not beyond the work done by Landlord in originally
constructing the affected portion of the Building and installing tenant
improvements in the Premises. However, Landlord need not spend more for
such restoration of the Premises than the Premises' allocable share of
the net compensation or damages received by Landlord for the part of
the Building taken. Landlord will be entitled to receive all of the
compensation awarded upon a taking of any part of or all of the
Building, including any award for any unexpired term of this Lease;
Tenant may seek an award in separate proceedings for its personal
property, trade fixtures, moving expenses and good will.
17. LANDLORD'S ACCESS. Landlord may enter any part of the Premises at all
reasonable hours (or, in any emergency or suspected emergency, at any
hour) to (i) inspect, test, clean, or make repairs, alterations and
additions to the Building or the Premises as Landlord believes
appropriate, or (ii) provide any service which Landlord is now or
hereafter obligated to furnish to tenants of the Building, or (iii)
show the Premises to prospective lenders, purchasers or (during the
last twelve (12) months of the Term), tenants and, if they are vacated,
to prepare them for
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reoccupancy. Rent will not ▇▇▇▇▇ because of Landlord's entry.
18. SURRENDER OF PREMISES. As soon as its right to possession ends, Tenant
will surrender the Premises to Landlord in as good repair and condition
as when Tenant first occupied, except for reasonable wear and tear and
for damage or destruction by fire or other casualty, and will
concurrently deliver to Landlord all keys to the Premises, and restore
any locks which it has changed to the system which existed at the
commencement of the Term. If possession is not immediately surrendered,
Landlord may enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying them, or any
part thereof, without incurring any civil or criminal liability.
(a) LEASEHOLD IMPROVEMENTS AND FIXTURES. Upon surrendering the
Premises, Tenant will remove any parts specified by Landlord
of the initial construction, Alterations and personal property
in or upon the Premises. Except where Landlord requires
removal, Tenant (if it is not in default) may elect whether to
remove each item of moveable office furniture and equipment in
the Premises not attached to the Building, but all initial
construction and Alterations will remain without compensation
to Tenant. All removals by Tenant will be accomplished in a
good and workmanlike manner so as not to damage any portion of
the Building, and Tenant will promptly repair and restore all
damage done. If Tenant does not so remove any property which
it has the right or duty to remove, Landlord may immediately
either claim it as abandoned property, or remove, store and
dispose of it in any manner Landlord may choose, at Tenant's
cost and without liability to Tenant or any other party.
(b) HOLDING OVER. If Tenant does not surrender the Premises as
required, this creates a tenancy at sufferance only, on all
terms of this Lease except that Tenant will have no right to
renew, extend or expand, and the monthly rental will be twice
the total amount payable (disregarding abatements or credits)
by Tenant under this Lease (including without limitation
parking rental, if applicable) during the last full calendar
month before holding over. Nothing other than a written
agreement (executed by both parties) will create any other
relationship, notwithstanding any course of dealing. Tenant is
liable for all damage Landlord suffers from such holding over,
and will indemnify Landlord against any claims resulting from
delay by Landlord in delivering possession of the Premises to
other parties.
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19. TENANT'S PROPERTY TAXES. Tenant is liable for all taxes levied or
assessed against personal property or fixtures in the Premises or due
to the use thereof, and will pay Landlord on demand any taxes levied or
assessed against Landlord allocable to such property or use.
20. LIEN AND SECURITY INTEREST. This Lease constitutes a security agreement
under the Uniform Commercial Code of Texas. In addition to the
statutory landlord's lien and to secure its obligations, Tenant grants
Landlord a security interest in and an express contractual lien upon
all fixtures and personal property of Tenant in the Premises at any
time, and on all proceeds therefrom. This property may not be removed
from the Premises without Landlord's consent until all sums then due to
Landlord have been paid and all Tenant's obligations have been fully
complied with and performed. On an Event of Default by Tenant, Landlord
may enter the Premises and take possession of any personal property
there without liability for trespass or conversion, and sell the same,
with or without having the property at the sale, after notifying Tenant
at the time and place of public sale or of the time after which private
sale is to be made, at which sale Landlord or its assigns may purchase
the same. Any requirement of reasonable notice shall be met if given as
provided in this Lease at least five (5) days before the day of sale.
Any sale shall be considered a public sale conducted in a commercially
reasonable manner if held in the Premises after the time, place and
method of sale and a general description of the types of property to be
sold have been advertised in a newspaper published or circulated in
Brazos County, Texas for five (5) consecutive days prior to the sale.
The proceeds from any disposition less all expenses connected with
taking possession, holding and selling of the property (including
reasonable attorneys' fees and other expenses), will be credited
against the indebtedness secured by the security interest granted in
this section. At Landlord's request, Tenant will execute and deliver to
Landlord a financing statement sufficient to perfect this security
interest; Landlord may file a copy of the relevant portions of this
Lease as a financing statement.
21. SECURITY DEPOSIT. To secure its obligations under this Lease, Tenant,
upon execution of the Lease, will pay Landlord the Security Deposit.
Landlord may commingle the Security Deposit with other funds, and from
time to time may apply any of the Security Deposit to satisfy any
obligation of Tenant under this Lease. Tenant will pay to Landlord on
demand the amount applied. If Tenant is not in default at the
termination of this Lease, Landlord will return any remaining Security
Deposit, without interest, upon receipt of Tenant's forwarding address.
Tenant shall not assign or
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encumber the Security Deposit or attempt to do so, and Landlord shall
not be bound by such assignment or encumbrance. Regardless of any
Assignment, Landlord may return the Security Deposit to the original
Tenant.
22. DEFAULT AND REMEDIES.
(a) EVENTS OF DEFAULT. It shall be an "Event of Default" if:
(i) Tenant fails to make a payment within ten (10) days
after it is due hereunder, or three (3) times in a
calendar year fails to pay when due Base Rent,
Additional Rent or any other amount owed by Tenant
hereunder.
(ii) Tenant fails to comply with any other obligation
under this Lease and does not cure such failure as
soon as reasonably practicable and in any event
within twenty (20) days after notice.
(iii) Tenant or any Guarantor becomes insolvent, makes a
transfer in fraud of creditors or an assignment for
the benefit of creditors, admits in writing its
inability to pay its debts as they become due, or
files a petition under any section or chapter of the
United States Bankruptcy Code or any similar law or
statute; or an order for relief is entered with
respect to Tenant or any Guarantor in any bankruptcy,
reorganization or insolvency proceedings; or a
pleading seeking such an order is not discharged or
denied within sixty (60) days after its filing; or a
receiver or trustee is appointed for all or
substantially all assets of Tenant or any Guarantor
or of the Premises or any of Tenant's property
located thereon in any proceeding brought by Tenant
or any Guarantor, or any receiver or trustee is
appointed in any proceeding brought against Tenant or
any Guarantor and not discharged within sixty (60)
days after appointment or Tenant or the Guarantor
does not contest such appointment; or any part of
Tenant's estate under this Lease is taken by process
of law in any action against Tenant.
(iv) Tenant fails to move into or take possession of the
Premises within fifteen (15) days after the
Commencement Date, or abandons or vacates any
substantial portion thereof, or fails for a period of
ten (10) consecutive days to conduct its business
therefrom (unless the Premises are
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untenantable), or removes or attempts to remove
substantially all its removable property.
(b) REMEDIES. On any Event of Default, Landlord may terminate this
Lease by notice to Tenant, or continue this Lease, in full
force and effect, and/or perform Tenant's obligations on
Tenant's behalf and at Tenant's expense.
(i) If and when this Lease is so terminated, all rights
of Tenant and those claiming under it will terminate,
as if this Lease had expired by lapse of time.
Landlord may immediately recover from Tenant all
accrued, unpaid sums, plus interest and late charges,
if in arrears, under the terms of this Lease up to
the date of termination, and any amounts owing under
Sections 18 and 22(b)(iii). In addition, Tenant will
immediately pay Landlord the excess, if any, of (A)
the present value of all amounts which would have
become due under this Lease for the remainder of the
Term, over (B) the present value of any net amounts
which Tenant establishes Landlord can reasonably
expect to recover by reletting the Premises for the
remainder of the Term, taking into consideration the
cost of such reletting, including remodeling, the
availability of acceptable tenants and other market
conditions affecting leasing. Such present value
shall be calculated at a discount rate which is one
percent (1%) above the rate commonly called the
discount rate for 90-day commercial paper in effect
at the Federal Reserve Bank of Chicago on the date of
termination.
(ii) Until the Lease is so terminated, Landlord may
terminate Tenant's right of possession and, on
Tenant's behalf and at Tenant's expense and in
Landlord's sole discretion, may sublet any of the
Premises (and, on expiration or termination of the
sublease, may resublet), for all or part of the
remainder of the Term, on whatever terms and
conditions Landlord in its sole discretion deems
advisable. Against the rents and sums due from Tenant
to Landlord during the remainder of the Term, credit
will be given Tenant in the net amount of rent
received from the new tenant after deduction by
Landlord for: (1) the costs incurred by Landlord in
reletting the Premises (including, without
limitation, repair and remodeling costs, brokerage
fees, legal fees and the like); and (2) all accrued
sums, plus interest and late charges if in arrears,
under the terms of this Lease.
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(iii) Upon an Event of Default or when Tenant is no longer
entitled to possession, Landlord may enter the
Premises and dispose of Tenant's property as herein
provided, without any civil or criminal liability,
and may perform Tenant's obligations hereunder on
Tenant's behalf. Tenant will reimburse Landlord on
demand for Landlord's attorneys' fees and other
expenses in doing so, and Landlord shall not be
liable for any damages resulting to Tenant, whether
or not caused by Landlord's negligence or gross
negligence. This subsection 22(b)(iii) survives
expiration or termination of the Lease.
(c) CONTINUING LIABILITY. No repossession, re-entering or
reletting of the Premises or any part thereof by Landlord
relieves Tenant or any Guarantor of its liabilities and
obligations under this Lease.
(d) REMEDIES CUMULATIVE. All rights and remedies of Landlord under
this Lease will be nonexclusive of and in addition to any
remedies available to Landlord at law or in equity.
(e) NO EXEMPLARY OR PUNITIVE DAMAGES. In no event shall Tenant or
Landlord be subject to any exemplary or punitive damages
arising out of failure to perform as agreed in this Lease.
(f) NO WAIVER. Landlord's failure to insist on strict compliance
with any term hereof or to exercise any right or remedy, does
not waive the same. Waiver or any agreement regarding any
breach does not affect any subsequent or other breach, unless
so stated. A receipt by Landlord of any rent with knowledge of
the breach of any covenant or agreement contained in this
Lease shall not be a waiver of the breach, and no waiver by
Landlord of any violation or provision of this Lease shall be
effective unless expressed in writing and signed by Landlord.
Payment by Tenant or receipt by Landlord of a lesser amount
than due under this Lease may be applied to such of Tenant's
obligations as Landlord elects. No endorsement or statement on
any check, and no accompanying letter, shall make the same an
accord and satisfaction, and Landlord may accept any check or
payment without prejudice to Landlord's right to recover the
balance of the rent or pursue any other remedy provided in
this Lease.
23. ATTORNEYS' FEES. If either party prevails in any litigation between the
parties arising under this Lease or the
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relationship it creates, the non-prevailing party will on demand pay or
reimburse the prevailing party's attorneys' fees, costs and expenses.
24. WAIVER BY TENANT. Except as otherwise set forth in this Lease, Tenant
waives and surrenders any right and privilege which it may now or
hereafter have (i) to redeem the Premises or to have a continuance of
this Lease after termination of the Lease, Tenant's right of occupancy
or the Term, (ii) for exemption of property from liability for debt or
for distress for rent, and (iii) relating to notice, demand or delay
relating to any of Landlord's remedies or rights. Tenant waives jury
trial of any matters relating to Assignments, bankruptcy or similar
matters, or the prevention of damage to the structural components or
mechanical, electrical or plumbing systems of the Building.
25. SUBORDINATION. This Lease and all rights of Tenant under this Lease are
subject and subordinate to any of the following, and any modifications
thereof, which may now or hereafter affect any portion of the Building:
(i) any Mortgage, (ii) any ground or underlying lease covering any part
of the Building, (iii) any applicable laws, rules, statutes and
ordinances of any governmental authority having jurisdiction, and (iv)
all utility easements and agreements. On sale by foreclosure of a
Mortgage or sale in lieu of foreclosure, Tenant will attorn to the
purchaser if requested by such purchaser, and recognize the purchaser
as the Landlord under this Lease. These provisions are self- operative
and no further instrument is required to effect them; however, upon
demand from time to time, Tenant shall execute, acknowledge and deliver
to Landlord any instruments and certificates necessary or proper to
evidence such subordination and/or attornment or, if Landlord so
elects, to render any of the foregoing subordinate to this Lease or to
any or all rights of Tenant hereunder. Tenant further waives the
provisions of any current or future statute or rule or law which may
give or purport to give Tenant any right or election to terminate or
otherwise adversely affect this Lease and the obligation of Tenant
hereunder in the event of any such foreclosure proceeding or sale, and
agrees that this Lease shall not be affected in any way whatsoever by
any such proceeding or sale unless the Mortgagee, or the purchaser,
shall declare otherwise.
26. NOTICE TO LANDLORD AND MORTGAGEE. Tenant shall not ▇▇▇ Landlord for
damages or exercise any right to terminate until (i) it gives written
notice to any Mortgagee whose name and address have been furnished to
Tenant, and (ii) a reasonable time for remedying the act or omission
giving rise to such suit has elapsed following the giving of the
notice, without the same being remedied. During that time
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Landlord shall not be considered in default, and Landlord and/or any
Mortgagee and/or their Employees may enter the Premises and do therein
whatever may be necessary to remedy the act or omission.
27. RULES AND REGULATIONS. Tenant and its Employees shall comply with the
Rules and Regulations (as changed from time to time as therein
provided) attached as Exhibit C.
28. ESTOPPEL CERTIFICATE. Promptly upon not less than ten (10) days' prior
request, Tenant will from time to time execute and deliver to Landlord
a certification in writing as to such matters as may reasonably be
requested including, without limitation, that Tenant consents to the
assignment of this Lease and its rents, that (except as may be
specified in said certificate), this Lease is unmodified and in full
effect, that rent has been paid to and only to the end of the current
month, and that to the knowledge of the signer of the certificate
(after due investigation) no default exists under this Lease.
Notwithstanding the preceding sentence, Tenant shall only be required
to certify to truthful statements, thus any certification shall be
modified by Tenant to correctly set forth any specific exceptions
Tenant may have. Any such certification delivered may be relied upon by
Landlord and by any actual or prospective purchaser or mortgagee of any
part of the Building or of any interest in Landlord.
29. NO PERSONAL LIABILITY. Any liability of Landlord and its Employees to
Tenant and its Employees under this Lease, or arising from the
relationship under it, is limited in amount to the value of the
interest of Landlord in the Building, and Landlord and its Employees
shall not be personally liable for any deficiency. This clause does not
limit or deny any remedies which do not involve personal liability. If
Landlord impermissibly withholds, denies or delays any consent which
Tenant is required to obtain, Tenant may seek specific performance but
shall not be entitled to damages therefor. Landlord's review,
supervision, inspections, comments or approval regarding any aspect of
work to be done by or for Tenant (under the Construction Agreement, as
an Alteration or otherwise) are solely for Landlord's protection and,
except as expressly provided in writing, create no warranties or duties
to Tenant or to third parties.
30. PAYMENTS AND NOTICES.
(a) PAYMENTS. All payments required to be made by Tenant to
Landlord are to be paid to Landlord, without prior demand
except as may be specified and without any setoff, deduction
or counterclaim whatsoever, in legal
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tender of the United States of America at the address set
forth on the invoice or, if no invoice is submitted or no
address is set forth, at the address for Landlord set forth on
this Lease or at any other address as Landlord may specify
from time to time by written notice delivered in accordance
with this Section.
(b) NOTICES. All notices given hereunder shall be in writing and
shall be considered properly given if mailed by first class
United States Mail, postage prepaid, registered or certified
with return receipt requested, or by delivering same in person
to the intended addressee, or by telecopy. All notices shall
be effective upon receipt at the address set forth on this
Lease or at such other address as the parties may specify from
time to time by written notice delivered in accordance with
this Section 30; except that any notice mailed as above
provided shall be effective upon its deposit in the custody of
the U.S. Postal Service if such notice is returned undelivered
to the sender.
31. RIGHTS RESERVED BY LANDLORD. In addition to other rights retained or
reserved, Landlord reserves the following rights, exercisable without
notice and without liability to Tenant and without effecting an
eviction, constructive or actual, or in any way diminishing Tenant's
obligations: (a) to change the name or street address of the Building
or any part of it; (b) to install, affix and maintain, modify or remove
any and all signs on the exterior and interior of the Building; (c) to
designate and approve, prior to installation, all types of interior and
exterior window treatments, and to control all internal lighting that
may be visible from the exterior of the Building; (d) the exclusive
right to designate, limit, restrict and control any service in or to
the Building; (e) to keep, and to use in appropriate instances, keys to
all doors within and into the Premises (no locks shall be changed or
added without the prior written consent of Landlord); (f) to decorate
and make repairs, alterations, additions, changes or improvements
whether structural or otherwise (specifically including, without
limitation, those in conjunction with Landlord's construction of
additional buildings) in and about any part of the Building, and to
enter the Premises for these purposes and, during such work, to
temporarily close doors, entryways, public space and corridors in the
Building, to interrupt or temporarily suspend Building Services and
facilities and to change the arrangement and location of entrances or
passageways, windows, doors and doorways, corridors, elevators, stairs,
toilets, or other public parts of the Building; (g) to approve the
weight, size and location of safes and other heavy equipment and
articles in and about the Premises and the Building, and to require all
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such items and furniture to be moved into and out of the Building and
Premises only at times and in manner as Landlord directs (movement of
Tenant's property are entirely at the risk and responsibility of
Tenant, and Landlord reserves the right to require permits before
allowing any property to be moved into or out of the Building); (h) to
have access for Landlord and other tenants of the Building to any mail
chutes located on the Premises according to the rules of the United
States Postal Service; and (i) to take all reasonable measures Landlord
considers advisable for the security of the Building and its occupants.
32. BROKERS. Landlord shall pay all commissions due and owing the Brokers
pursuant to Landlord's listing agreement in connection with this Lease.
Landlord will indemnify Tenant and hold Tenant harmless from and
against any costs, expenses or liability for commissions or other
compensation or charges claimed by any other broker or agent claiming
to represent Landlord with respect to this Lease. Tenant warrants that
it has had no dealing with any broker or agent other than the Brokers
in connection with the negotiation or execution of this Lease, and
Tenant will indemnify Landlord and hold Landlord harmless from and
against any and all costs, expenses or liability for commissions or
other compensation or charges claimed by any broker or agent with
respect to this Lease.
33. MISCELLANEOUS PROVISIONS
(a) COVENANT OF QUIET ENJOYMENT. Provided Tenant keeps and
fulfills all of the terms, covenants, agreements and
conditions to be paid or performed by it, at all times during
the Term, Tenant shall enjoy peaceable and quiet possession of
the Premises without any unreasonable disturbance from
Landlord or from any other person claiming by, through or
under Landlord, but not otherwise, subject to the terms of
this Lease and to any Mortgages, ground leases or other
matters to which this Lease is subject and subordinate.
(b) EMPLOYEES. Where either party agrees not to do a particular
thing, it also agrees not to permit its Employees to do so.
Where either party waives rights against the other party, it
also waives the same rights against the other party's
Employees. That waiver shall be considered a waiver on behalf
of the party making it, of all that party's Employees, and of
anyone claiming under any of them, including insurers and
creditors.
(c) LANDLORD'S COSTS. Where Tenant is required to pay or reimburse
Landlord for the costs of any item, the costs
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shall be the reasonable and customary charge established by
Landlord from time to time, including a reasonable allocation
of Landlord's overhead, administrative and related costs
associated with the ownership and operation of the Building.
Failure to pay any reimbursable cost shall be treated as a
failure to pay rent.
(d) LATE PAYMENTS. If any sums due hereunder are not paid within
ten (10) days after they are due and payable, Tenant shall
also pay a late charge of five percent (5%) of all such past
due amounts, plus interest from the date due at eighteen
percent (18%) per annum, compounded monthly (but not more in
total than the maximum amount permitted by law).
(e) INVOICES. Tenant will promptly notify Landlord of any dispute
it may have regarding Landlord's invoices. If Tenant does not
notify Landlord within thirty (30) days after receiving the
invoice, it is conclusively deemed to have agreed to the
invoice and all underlying facts.
(f) BUSINESS DAYS AND HOURS; HOLIDAYS. The term "business days"
means Monday through Friday (except for holidays). The term
"normal business hours" means 7:00 a.m. to 6:00 p.m. on
business days. The term "holidays" means those days designated
by the government of the United States as the holidays for New
Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day, and such other holidays as
may be designated in the Rules and Regulations.
(g) SEVERABILITY. Every covenant and obligation contained in this
Lease, including the obligation to pay rent, is and shall be
construed to be a separate and independent covenant and
obligation and not as a condition. If any term or provision of
this Lease or its application to any person or circumstance is
invalid and unenforceable to any extent, the remainder of this
Lease, as well as such term or provision as otherwise applied,
shall not be affected thereby.
(h) NO MERGER OF ESTATES. There shall be no merger of this Lease
of the leasehold estate hereby created with the fee estate in
the Premises or any part thereof by reason of the fact that
the same person may acquire or hold, directly or indirectly,
any interest in this Lease or the leasehold estate created as
well as any interest in the fee estate in the Premises.
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(i) FORCE MAJEURE. When a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable
or responsible for, and there is excluded from the computation
for any such period of time, any delays due to strikes, riots,
acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other
cause of any kind whatsoever which is beyond the control of
Landlord. Subject to the preceding sentence, time is of the
essence of every part of this Lease.
(j) INTERPRETATION OF LEASE. No amendment or modification of this
Lease is binding or valid unless expressed in writing and
executed by both parties. Tenant represents, warrants and
covenants that any financial statements heretofore or
hereafter provided to Landlord in connection with this Lease
are accurate and not materially misleading. The headings in
this Lease are for convenience only and shall not affect the
meaning of the text. Words of any gender include any other
gender, and words in the singular number include the plural,
unless the context otherwise requires. The term "hereunder" or
similar terms refers to this Lease as a whole. If any context
in which any defined term is used clearly conflicts with the
definition thereof, said context shall control only for that
use, and clearly related uses, of such term.
(k) JOINT AND SEVERAL LIABILITY. If there is more than one Tenant
or any Guarantor, the obligations imposed upon such parties
are joint and several obligations of each of them, and
Landlord need not first proceed against any of them before
proceeding against the others, nor shall any Guarantor be
released from its guarantee for any reason whatsoever,
including, without limitation, any amendment of this Lease,
any forbearance by Landlord or waiver of any of Landlord's
rights, the failure to give any Tenant or Guarantor any
notices, or the release of any party liable for the payment of
Tenant's obligations.
(l) GOVERNING LAW. Texas law governs this Lease. Except as
specifically provided, neither party may record this Lease or
a copy or memorandum thereof. The submission of this Lease to
Tenant is not an offer, nor does Tenant have any rights unless
and until each party executes a copy of this Lease and
delivers the same to the other. All covenants, agreements,
terms and conditions to be observed and performed by the
parties are binding upon their respective heirs, personal
representatives, successors and assigns.
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(m) CONFIDENTIALITY. Tenant agrees that it will not reveal the
terms and conditions of this lease or any inducements provided
by Landlord in connection herewith.
THIS LEASE IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND/OR THE PARTIES'
AGENTS CONCERNING THE SUBJECT MATTER, SUPERSEDING ANY PRIOR WRITTEN OR ORAL
AGREEMENTS AND WITHOUT ANY IMPLIED AGREEMENTS, WARRANTIES OR UNDERSTANDINGS.
IN WITNESS WHEREOF, this Lease is hereby executed in multiple originals
as of the date first above stated.
TENANT: LANDLORD:
505 ENTERTAINMENT, LTD. 505 CENTER, L.P.
By: ▇▇▇▇▇▇ & Wyndham, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- Its: Attorney-in-Fact
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
Fox & Hound, Inc. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -------------------------------
Title: Its General Partner Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -----------------------------
Tenant's Address: Its: President
------------------------------
505 University East Landlord's Address:
Suites 307 and ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 505 Center, L.P.
c/o Clarke & Wyndham, Inc.
Copy to: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
505 Entertainment, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Note: If Tenant shall be a corporation, the authorized officers must sign on
behalf of the corporation. The Lease must be executed by the president or
vice-president and the secretary or assistant secretary, unless the by-laws or a
resolution of the board of directors shall otherwise provide, in which event,
the by-laws or a certified copy of the resolution, as the case may be, must be
furnished. Also, the appropriate corporate seal must be affixed.
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LIST OF EXHIBITS
AND
RIDERS
Exhibit A Property Description
Exhibit B Rules and Regulations
Exhibit C Construction Agreement
Exhibit D Parking
Exhibit E Premises
Exhibit F Options
Rider 1 Signage
25
EXHIBIT A
PROPERTY DESCRIPTION
Being all that certain lot, tract or parcel of land lying and being situated in
Brazos County, Texas, and being Lot One (1), Block "F", COLLEGE HEIGHTS
ADDITION, an Addition to the City of College Station, Brazos County, Texas,
according to the plat recorded in Volume 466, Page 145, Deed Records of Brazos
County, Texas.
26
EXHIBIT B
SHOPPING CENTER LEASE
RULES AND REGULATIONS
1. Tenant shall not block or obstruct any of the entries, passages, doors,
hallways, sidewalks, or stairways of the Center, or permit such areas
to be used at any time except for ingress and egress.
2. The movement of furniture, equipment, merchandise or materials within,
into or out of the Premises shall be through the rear entrance delivery
door, if any, and shall be restricted to time, method and routing of
movement as determined by Landlord, and Tenant assumes all liability
and risk in that movement. Any damage done to the Premises or Center
during such movement shall be paid by the Tenant. Landlord shall not be
responsible for watching or safekeeping any items delivered to Tenant.
Tenant shall keep and maintain in good order, condition and repair any
loading platform, truck dock and/or truck maneuvering space therefore
which is used by Tenant or to which Tenant has the right of exclusive
use, even if that area is not within the Premises.
3. No sign, advertisement or notice (including "sign vans", temporary
signs or other similar devices) shall be displayed, painted or affixed
by Tenant in or on any part of the Center or the Premises without prior
written consent of Landlord. All signs submitted for Landlord's prior
written approval shall conform to any sign requirements or restrictions
for the Center.
4. Landlord is not responsible for lost or stolen personal
property, equipment, money or any article taken from the
Premises or the Center.
5. Tenant shall keep the Premises and adjacent areas (including sidewalks,
service-ways, and loading areas) in a clean and tidy condition, and
free from dirt, rubbish or other obstructions at all times. Tenant
shall have the sole responsibility of the timely removal and disposal
of crates, boxes, and/or any other article of trash that will not fit
or was not intended for use in existing trash containers.
6. Tenant, its agents, servants and employees shall not install or operate
any refrigerating, heating or air conditioning apparatus or carry on
any mechanical operation or bring into the Premises or the Center any
inflammable, combustible, highly toxic, corrosive, or explosive fluids,
chemicals or substances without the prior written permission of
Landlord.
Exhibit B
Page 1 of 5
27
7. No signaling, telegraphic or telephonic instruments or devices, or
other wires, instruments or devices, shall be installed in connection
with any demised premises without the prior written approval of
Landlord, which approval shall not be unreasonably withheld unless same
may affect the structural components of the Center or the mechanical,
electrical or plumbing systems of the Center. Such installations, and
the boring or cutting for wires, shall be made at the sole cost and
expense of the Tenant and under the control and direction of Landlord.
Landlord retains in all cases the right to require (1) the installation
and use of such electrical protecting devices that prevents the
transmissions of excessive current of electricity into or through the
Center, (2) the changing of wires and of their installation and
arrangement underground or otherwise as Landlord may direct, and (3)
compliance on the part of all using or seeking access to such wires
with such rules as Landlord may establish relating thereto. All such
wires used by Tenants must be clearly tagged at the distribution boards
and junction box and elsewhere in the Center, with (1) the number of
the demised premises to which said wires lead, (2) the purpose for
which said wires are used, and (3) the name of the company operating
same.
8. If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the
expense of Tenant, with approval and under direction of Landlord.
9. Except as set forth in any construction plans approved by Landlord, or
otherwise approved in writing by Landlord, no exterior lighting,
awnings, decorations, paintings, canopies or other projections may be
attached to the exterior surface of the walls enclosing the Premises.
No curtains, blinds, screens, lettering, placards, decorations, or
advertising media may be attached to or hung, or used in connection
with, any window or door of the Premises without the prior written
approval of Landlord as to the quality, type, design, color and manner
of attaching the same. No protective screen, grating, shade or other
enclosing device may be used on the portion of the Premises abutting
the Common Areas, courts or public corridors without Landlord's prior
written approval as to the quality, type, design, color and manner of
attaching the same, to the end that all storefronts facing the said
Common Area will be compatible, in Landlord's reasonable judgement, in
appearance. Tenant shall regularly clean, repair and, if necessary in
Landlord's reasonable judgement, replace any awnings used exclusively
in connection with the Premises.
Exhibit B
Page 2 of 5
28
10. No additional locks shall be placed on any door in or providing access
to the Premises unless Landlord or the Center manager is given a key to
the lock at the time that it is installed. Tenant shall not have any
duplicate keys made and shall return all keys to Landlord promptly upon
termination of this Lease.
11. Tenant shall give Landlord prompt notice of all damage to or defects in
air conditioning equipment, plumbing, electrical facilities or any part
or appurtenance of the Premises.
12. Tenant shall not use the sidewalk adjacent to or any other space
outside the Premises for display, sale or any other similar purpose.
13. Tenant shall not use the plumbing facilities of the Premises for any
purpose other than that for which they were constructed. If Tenant uses
the premises for the sale, preparation, or service of food for
on-premises consumption, Tenant shall install any grease traps that may
be necessary or desirable to prevent the accumulation of grease or
other wastes in the plumbing facilities servicing the Premises.
14. Tenant shall not place a load on any floor exceeding the floor load per
square foot that the floor was designed to carry.
15. If Tenant is a food related tenant, then Tenant shall cause all garbage
to be removed daily between the hours of 10:00 p.m. and 8:00 a.m. only.
Otherwise, Tenant shall adhere to trash pick-up procedures established
from time to time by Landlord.
16. Canvassing, soliciting and peddling in the Center are prohibited, and
each Tenant shall cooperate to prevent the same.
17. All plate and other glass now in the Premises is situated there at the
risk of Tenant, and if broken, shall be replaced by and at the expense
of Tenant. Tenant shall maintain all display windows in a neat,
attractive condition. All signs visible through the windows and doors
shall comply with the signage provisions in this Lease. Tenant shall
keep the display windows electrically lighted during such reasonable
periods of time as Landlord requires.
18. Alterations and miscellaneous job orders shall at all times be directed
to the Center manager to facilitate the orderly and otherwise proper
processing of that work in accordance with any covenants of the Lease
applicable thereto.
Exhibit B
Page 3 of 5
29
19. If the leased premises of any Tenant becomes infested with vermin and
such infestation is caused by Tenant's use of its premises, such
Tenant, at its sole cost and expense shall cause its leased premises to
be treated by a professional exterminator from time to time to the
satisfaction of the Landlord.
20. Tenant shall not install and operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of
the Tenant's leased premises without the written permission of the
Landlord.
21. Tenant shall comply with parking rules and regulations as may be posted
and distributed from time to time.
22. Tenant shall use its best efforts to prohibit picketing or other union
activities involving its employees in the Center except in those
locations and subject to time and other limitations as to which
Landlord may give prior written consent.
23. Landlord shall in all cases retain the right to control or prevent
access to the common areas by all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character,
reputation or interests of the Center and its tenants.
24. In case of invasion, riot, public excitement or other commotion,
Landlord reserves the right to prevent access to the Premises or Center
during the continuance of same. Landlord shall in no case be liable for
damages for the admission or exclusion of any person to from the
Premises or Center. Landlord has the right to evacuate the Premises or
Center in the event of an emergency or catastrophe.
25. Landlord may waive any one or more of these Rules for the benefit of
any particular tenant or tenants, but no waiver by Landlord shall be
construed as a waiver of such Rules in favor of any other tenant or
tenants, or prevent Landlord from thereafter enforcing all Rules
against any or all of the Tenants of the Center.
26. Landlord may amend these Rules and make other and further reasonable
rules as in its judgement are from time to time necessary and
desirable. Landlord shall not be responsible for any violation of the
foregoing rules and regulations by other tenants of the Building and
shall have no obligation to enforce the same against other tenants.
Exhibit B
Page 4 of 5
30
TENANT: LANDLORD:
505 ENTERTAINMENT, LTD. 505 CENTER, L.P.
By: ▇▇▇▇▇▇ & Wyndham, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- Its: Attorney-In-Fact
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
Fox & Hound, Inc. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- ---------------------------
Title: Its General Partner Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -------------------------
Its: President
-------------------------
Exhibit B
Page 5 of 5
31
EXHIBIT C
CONSTRUCTION AGREEMENT
Landlord shall provide Tenant a construction allowance of $10.00 p.s.f.
of rentable area. Tenant's construction drawings must be preapproved by Landlord
prior to the allowance being paid.
32
EXHIBIT D
PARKING
1. At all times during the initial term of this Lease and conditioned upon
this Lease being in full force and effect and there being no Event of
Default by Tenant under this Lease, Tenant is permitted access to the
reasonable and non-exclusive use of the surface parking area attached
to the Building for the parking of ______ vehicles in an area for
unassigned parking spaces.
2. Neither Tenant nor Tenant's employees shall have the right to assign or
sublease such parking spaces except in connection with an Assignment of
this Lease.
3. Upon occupancy, Tenant shall provide to Landlord a list of Tenant's
employees who are utilizing the parking spaces provided by Landlord and
the state license numbers of such employees' vehicles. Tenant shall be
required to update such list when changes occur.
4. Tenant shall use the parking spaces in accordance with Landlord's
parking rules and regulations, which shall be made, modified, and
enforced by Landlord only.
5. Landlord may, at its option, provide a reasonable means of controlling
access to the parking area.
6. Landlord may relocate any parking areas or spaces from time to time,
and may also use portions of the parking area outside of the designated
areas for visitor, or other parking needs of Landlord.
7. Landlord may change the size of the parking area.
8. Tenant is responsible for ensuring that its employees and agents do not
park their automobiles in visitor parking areas or spaces, if any,
established by Landlord, or in parking spaces or areas, if any,
reserved or designated by Landlord for the use of other tenants of the
Building, or for other purposes (such as for retail tenants).
9. Landlord is not liable or responsible for any loss of or to any
automobile or vehicle or equipment or other property therein, or damage
to property or injury to person, unless the loss, damages or injury is
proximately caused by the gross negligence of Landlord or its
employees.
10. Landlord may, in its sole discretion from time to time, designate
parking spaces in any parking areas for the
Exhibit D
Page 1 of 2
33
exclusive use of specified tenants of the Building. The location and
number of those spaces shall be determined by Landlord in its sole
discretion, and Landlord may from time to time change the location and
number of those spaces.
TENANT: LANDLORD:
505 ENTERTAINMENT, LTD. 505 CENTER, L.P.
By: ▇▇▇▇▇▇ & Wyndham, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- Its: Attorney-In-Fact
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
Fox & Hound, Inc. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ --------------------------
Title: Its General Partner Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -------------------------
Its: President
-------------------------
Exhibit D
Page 2 of 2
34
[ARCHITECTS' SITE PLAN]
Exhibit E
Page 1
35
[ARCHITECTS' FLOOR PLAN - BUILDING #3]
Exhibit E
Page 2
36
EXHIBIT F
OPTION TO RENEW
Lessee at Lessee's sole option shall have the right, but not the obligation to
renew this Lease under the following terms and conditions, so long as Lessee is
not in default. Lessee shall provide Lessor written notification of its intent
to renew within 90 days of the expiration of the Lease or any applicable renewal
period.
OPTION TERM RATE
------ ---- ----
1 5 Years $9.00
2 5 Years Market Rate
3 5 Years Market Rate
All other terms of the Lease, except base monthly rental above, shall remain
unchanged in option periods. "Market Rate" shall be defined as the average
market rate for similar space within the Center.
Exhibit F
Page 1 of 1