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EXHIBIT 10.28
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into this 30th day of July, 1993, by
and between BOOTS, Inc., a Kansas corporation hereinafter referred to as
"Lessor" and In Cahoots Limited Partnership, a Kansas Limited Partnership,
hereinafter referred to as "Tenant", all upon the following terms and
conditions and in consideration of the mutual promises and covenants
hereinafter set out:
WITNESSETH:
The Property
1. The Lessor hereby agrees to construct a building upon the land
which is described in Exhibit A for the intended use as a Nightclub on a
turnkey basis in accordance with the architectural drawings, detailed plans
and specifications to be furnished to Lessor by Tenant, which shall be
incorporated herein by reference and become a part of this lease upon delivery
of same to Lessor. The building to be built will be approximately 30,000 square
feet, it will be fully sprinkled for fire protection, it will be fully air
conditioned and heated, with all other customary utilities in place. The
building will be constructed in such a way as to have multiple uses, however,
the first use that is anticipated will be for the In Cahoots Nightclub.
Lessor agrees to expend the sum of, not less than, $1,155,000.00 for
the purchase, construction and outfitting of the building. The said sum shall
include the purchase price of the property including the improvements in place
and certain personal property acquired thereunder. It shall further include
furniture, fixtures and equipment as reflected on attached "Schedule 1".
Lessor hereby demises and leases to Tenant, in consideration of the
faithful performance by Tenant of all the terms and conditions hereof, the
property and premises located at 10001 X. Xxxxxxx, in Wichita, Kansas, more
particularly described as follows:
PLEASE SEE ATTACHED EXHIBIT "A" WHICH IS SPECIFICALLY MADE A PART
HEREOF.
Term
2. It is agreed that the term of this lease shall be for ten (10)
years. The term is to commence when Tenant commences operation as a night
club, which is to say, when the same is "open" to business. But, in any event,
not later than October 15, 1993. Tenant will notify Lessor by mail of the date
of "opening". The primary term of this lease shall expire, unless sooner
terminated
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as herein provided, on the last day of the tenth (10th) "lease year". See rider
for extended terms.
Provided, however, if the Tenant shall fail to open the lease premises
by the date provided immediately above the lease term will begin anyway.
However, the Tenant shall be only liable for one half (1/2) of the rent and
other leasehold charges accruing until such time as the Tenant commences
operation as a nightclub, as described above at which time the lease and the
other obligations shall be fully due and collectable under this lease.
Rent
3. Tenant shall pay to the Lessor a minimum monthly rental of
Twelve Thousand Five Hundred Dollars ($12,500.00) per month. The minimum
monthly rent of $12,500.00 is due monthly, in advance.
The monthly installments of the annual minimum rent shall be payable
by the Tenant on or before the first day of each month in advance and shall be
prorated for any fractional calendar month. The prorated annual minimum rent for
the fractional calendar month (if any) preceding the first lease year shall be
payable upon the commencement of the term.
Tenant will pay to Lessor, in addition to the minimum monthly rent a
percentage rent to the extent, if any, that Six percent (6%) of "Gross Sales"
exceeds the minimum monthly rent, and payable 15 days after the last day of
each calendar quarter. Due dates for percentage rent are January 15th, April
15th, July 15, and October 15. ("Gross Sales" for the purposes of this
preceding sentence shall include complimentary sales, and exclude the
following: sales taxes, and beer/liquor taxes. "Gross sales" is that amount
which is shown on the sales tax return furnished to the Kansas Department of
Revenue. A copy of such sales tax return shall be submitted to Lessor monthly
within a reasonable time after filing with the Kansas Department of Revenue.
Tenant agrees to prepare true and complete records and accounts of all
gross receipts for each lease year in accordance with generally accepted
accounting principles consistently followed. Such records and accounts shall
include such sales records as an independent certified public accountant would
need in order to examine a Tenants annual statement of gross receipts pursuit
to generally accepted accounting standards. Such records and accounts shall
include such sales records as an independent certified public accountant would
need in order to examine a Tenants annual statement of gross receipts pursuit
to generally accepted accounting standards. Such records and accounts for any
lease year shall be maintained at the lease premises or at the Tenants main or
accounting office for a period of 24 months after the end of such lease year.
Tenant shall also retain copies
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of all its sales and occupation tax returns covering its operations in the
lease premises and any other governmental tax or other return which show Tenant
sales therein (other than a return which shows the combined sales from the
lease premises and other premises) and shall upon demand provide a photocopy to
the Lessor.
Taxes
4. During the term of the lease, the Tenant will pay ad valorem
taxes and special assessments upon the Real Property and the improvements
thereon. Also, Tenant will pay all taxes, charges, levies or assessments, of
every kind and nature, upon the fixtures, equipment, personal property,
inventory, tangible or intangible property, accounts receivable, etc., and all
similar taxes upon the property of Tenant, said property not being described or
set forth herein.
Utilities
5. Tenant shall pay promptly, when due, all charges for water,
gas, sewer, electricity, heat, power, telephone and all similar services used
and supplied to Tenant in connection with the demised premises and shall
contract for same in its own name.
Insurance
6. a) Tenant shall, maintain fire and extended coverage
insurance upon the structure and improvements upon said real property. All
proceeds of such insurance, when received by the Lessor, shall be used first to
restore the leased premises and the building or buildings thereon to the
condition they were in prior to the occurrence of the damage. The Tenant agrees
to include the bank or finance company at Xx. Xxx Xxxxxxx'x direction, or as it
may change from time to time, the bank or finance company as a loss payee on
the insurance policy covering fire and extended coverage insurance as described
above as their interest may appear.
b) Tenant shall, throughout the term of this lease, at
Tenant's expense, maintain usual and general public liability insurance against
claims of third parties in or about the demised premises. The liability under
such insurance shall be not less than One Million Dollars ($1,000,000) for each
occurrence. Such policy shall, by its terms indemnify both Lessor and Tenant
and copies of the insurance policy, or, certificates of insurance showing same
in full force and effect, shall be furnished to Lessor. The Tenant also agrees
to include the bank or finance company named by Xx. Xxx Xxxxxxx, or the bank or
finance company as it changes from time to time, as a loss payee on the general
liability insurance policy as their interest may appear.
c) Tenant will insure its own property, including, but
not limited to fixtures, inventory, merchandise, etc. including
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$300,000.00 coverage for "soft costs" which shall include certain extra expense
and pre-opening items. Such coverage shall be reflected in the policy of
insurance "as their interest may appear loss payable".
d) Each party hereby waives any and every claim which
arises or may arise in its favor and against the other party during the term
of this lease or any extension or renewal thereof for any and all loss of, or
damage to, any of its property which loss or damage is covered by valid and
collectable fire and extended coverage insurance policies, to the extent that
such loss or damage is recovered under said insurance policies. Said waivers
shall be in addition to, and not in limitation or derogation of, any other
waiver or release contained in this lease with respect to any loss or damage
to property of the parties hereto.
Maintenance
7. Tenant will, at his sole cost and expense, maintain all of the
improvements and structures upon said premises and parking areas, including,
but not limited to, plate glass, doorways, the interior and exterior of the
premises, the heating and air conditioning equipment, roof, mechanical
equipment in connection therewith and shall promptly make necessary repairs of
maintenance thereof. The premises and improvements shall be maintained in a
"first class" condition.
Improvements
8. Tenant may make any additions, alterations, changes and
improvements on the demised premises as Tenant shall deem necessary, same to be
approved by Lessor; provided, however, there shall be no addition, alteration,
change or improvement which will weaken the structural strength of the building
or structure, and such additions, alterations, changes or improvements, shall
be made in a workmanlike manner and in full compliance with all building laws
and codes and all ordinances applicable thereto, and same shall become a part
of the premises and structure, and shall remain and be surrendered as a part
thereof upon the termination of this lease. All such additions, alterations,
changes and improvements will be paid for by Tenant. Tenant will not suffer nor
allow any liens of any sort of kind or of nature to attach to or upon the
premises at any time.
Lessor's Right of Entry
9. Tenant agrees that Lessor and any authorized representative
of Lessor may enter the demised premises and structure at reasonable time
during usual business hours for the purpose of inspecting same or making
necessary repairs to same an performing any work thereon that may be necessary
by reason hereof or by reason of Tenant's default in the terms of the Lease
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Agreement. Nothing contained herein shall imply any duty on the part of Lessor
to do any such work, which under the provisions of this lease, Tenant is
required to perform, and the performance thereof by Lessor shall not
constitute a waiver of the Tenant's default and failure to perform same.
Lessor shall not in any event, be liable for any inconvenience, annoyance,
disturbance, loss of business, or other damage sustained by Tenant while
making such repairs or the performance of any such work upon the structure and
demised premises or on account of bringing materials, supplies and equipment
into or thought the premises or structure during the course thereof.
Lessor is granted the right during the usual business hours to enter
the structure or demised premises to exhibit the same for the purpose of sale
or for mortgage; and, during the last six (6) months of the term of this lease,
Lessor may exhibit the same to any prospective Tenant. Lessor agrees that it
will use its best efforts not to disturb the normal business operation of
Tenant.
Subleasing, etc.
10. The Tenant shall not voluntarily, involuntarily or by
operation of law, assign or incumber this lease, in whole or in part, nor
sublet any or all of the lease premises, nor allow the operation of any
businesses therein or thereon by a licensee or concessionaire (herein after
collectively referred to as a "licensing" of the leased premises) without the
prior written consent of the Lessor in each instance. The consent by the Lessor
to any assignment, incumbrance, licensing or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment,
incumbrance, licensing or subletting. Not withstanding any assignment or
subletting, Tenant shall remain fully liable under this lease and shall not be
relieved from performing any of its obligations hereunder. As a condition to
any assignment of this lease by Tenant which is permitted under this section,
the assignee thereof shall be required to execute and deliver to Lessor an
agreement whereby such assignee assumes and agrees with the Lessor to discharge
all obligation of Tenant under this lease.
Attornment
11. Tenant shall in the event of any proceedings of brought for
the foreclosure, or in the event of the exercise of the power of sale under,
any mortgage made by Lessor covering any part of the property, attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
Lessor under this lease. Upon the request of any interested party, Tenant shall
execute, acknowledge and deliver an instrument, in form and substance
satisfactory to such party, evidencing the attornment provided for in this
Section.
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Insurance Proceeds
12. It is agreed that if the structure or improvements an the
demised premises be damaged or destroyed during the term of this lease or any
extension hereof by fire or the cause beyond the control of the parties hereto,
the Lessor, except as otherwise provided herein, shall immediately upon receipt
of insurance proceeds, but in no event later than ninety (90) days after such
damage has occurred, proceed to repair and/or rebuild same, including any
additions or improvements made by the Lessor or Tenant, on the same plan and
design as existed immediately before such damage or destruction occurred,
subject to such delays as may be reasonably attributed to governmental
restrictions, failure to obtain material and/or labor, strike, Act of God, war
or other causes of similar nature beyond the control of Lessor. The rent due
hereunder shall be reduced for such period of time as the Tenant is precluded
from the continuing operation of its business; however, in the event Tenant can
substantially operate from said premises, proportional rental required under
this lease shall be abated. The lease term shall be extended by the amount of
time the premises are closed for construction.
In the event the structure or premises are damaged by an uninsured
casualty to such an extent as to render the structure or improvements unusable,
then and in such event, either party hereto may elect to cancel and terminate
this lease effective as of the date of such destruction or damage. Such
election shall be evidenced by written notice to that effect mailed within
thirty (30) days of the determination and knowledge by the terminating party
that such casualty was uninsured. The rental hereunder shall be abated as of
the date and time of the casualty.
Waiver of subrogation and limitation of liability.
13. Anything in this lease to the contrary not withstanding, it is
agreed that each party (the "releasing party") hereby releases that other (the
"released party") from any liability which the released party would, but for
this section, have had to the releasing party during the term if this lease,
resulting from the occurrence of any accident or occurrence or casualty, (a)
which is or would be covered by a fire and extended coverage policy (with
vandalism and malicious mischief endorsement attached) or by a sprinkler
leakage, boiler and machinery or water damage policy in the State of Kansas
(irrespective of whether such coverage is being carried by the releasing
party), and (b) covered by any other casualty or property damage insurance being
carried by the releasing party at the time of the occurrence, which accident,
occurrence or casualty may have resulted in whole or in part from any act or
neglect of the released party, its officers, agents or employees; an, in so far
as the Tenant is the releasing party, it will also release from any such
liability Lessor as if Lessor was a release party under this section; provided,
however, the release
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here and above herewith set forth shall become inoperative and null and void
if the release party wishes to replace the appropriate insurance with an
insurance company which (i) takes the position that the existence of such
release vitiates or would adversely effect any policy so insuring the releasing
party in a substantial manner and notice thereof is given to the released
party, or (ii) requires the payment of a higher premium by reason of the
existence of such release, unless in the latter case the release party within
ten (10) days after the notice thereof from the releasing party pays such an
increase in premium.
Anything in this lease to the contrary not withstanding it is agreed
that the Lessor shall not be liable for any damage arising from any negligent
act or omission of any other Tenant or occupant of the leased premises.
Tenant shall give prompt notice to Lessor in case of casualty damage
or accidents on the leased premises.
Indemnification
14. Tenant will indemnify and save harmless Lessor, its offices,
agents and servants, from and against any and all claims, actions, liability
and expense in connection with the loss of life, bodily injury and or damage to
property (a) arising from or out of any occurrence in upon or at the leased
premises, where the occupancy or use by Tenant of the leased premises or any
part thereof, unless the same be caused by the willful or negligent act or
omission of Lessor or its agents, employees or servants, and/or (b) occasioned
wholly or in part by any negligent act or omissions of Tenant, its agents,
employees, servants, sub Tenants, lessees, or concessionaires. If any action or
proceeding is brought against the Lessor, its offices, agents or servants by
reason of any of the aforementioned causes, Tenant upon receiving notice
thereof from the Lessor, agrees to defend such action or proceeding by adequate
counsel at its own expense.
Eminent Domain
15. It is agreed that if, during the term of this lease, the title
to the whole or substantially all of the premises shall be taken, or if the
premises shall be deprived or adequate ingress or egress to and from the
streets and highways, or any of them, abutting the premises, as the result of
the exercise of eminent domain, Tenant shall have the option of terminating
this agreement. In the event that Tenant elects to terminate this agreement,
this lease shall terminate as of the date of vesting of title pursuant to such
taking and proceedings. For the purpose hereof, "substantially all the
premises" shall be deemed to have been taken if Tenant cannot reasonably
operate in the remainder the business being conducted an the premises at the
time of such taking. If, during the term hereto or any extension, title to less
than the
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whole or substantially all of the demised premises be taken be eminent domain,
this lease shall not terminate and the rent thereafter due and payable be
Tenant shall be reduced in just proportion as the nature, value and extent of
the part taken bears to the whole of the premise so leased and let herein, a
Lessor shall, as may be reasonably required, proceed to repair, restore and
place in proper condition for use and occupancy that part of the improvements
and structure not so taken. The rental shall not be reduced if Lessor can
provide adequate substitute for the part taken or adjacent to the leased
premises. Lessor and Tenant shall share, as their respective interests may
appear, in any award in any such taking.
Surrender; removal and restoration by Tenant.
16. On the last day of the term or on the sooner termination
hereof Tenant shall (a) peacefully surrender the leased premises broom clean
and in good order, condition and repair except for reasonable wear and tear;
and (b) at its expense remove from the leased premises the signs, movable
furniture, trade fixtures an carpeting which were furnished and installed by
and at the Tenants sole expense and any of the Tenants property not so removed
may at Lessors election and without limiting Lessor right to compel removal
thereof be deemed abandoned. Any damage to the leased premises caused by the
Tenant and the removal of Tenant property shall be repaired by Tenant and at
Tenants expense.
The title to all alterations, additions, improvements, repairs,
decoration including any hard surface, bonded or adhesively affixed flooring,
heating and air conditioning equipment and fixtures (other than the Tenants
property which shall have been made, furnished or installed by or at the
expense of Tenant in or upon the leased premises), shall vest in the Lessor
upon the installation thereof, and the same shall remain upon and be
surrendered with the lease premises as a part thereof, without disturbance and
without charge.
Tenant shall have the right to use the demised premises for any lawful
purpose. Tenant shall not assign this lease or any part thereof or its rights
or leasehold estate hereunder without the written consent of Lessor being first
obtained, and which consent shall not be unreasonable withheld.
Termination
17. If this lease shall terminate at any time other than the term
herein fixed as the expiration of the term or any extension hereof, Tenant
shall have a reasonable time thereafter to effect the removal of the items set
out, but not to exceed thirty (30) days, during which time the rent shall not
xxxxx.
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Tenant's Liens
18. Tenant shall not suffer any mechanics' or materialman' liens
to be filed against the leased premises by reason of work, labor, services or
materials performed or furnished to Tenant or anyone holding any part of the
lease premises under Tenant. If any such lien shall at any time be filed as
aforesaid, Tenant may contest the same in good faith but not withstanding such
contests Tenant shall, within fifteen (15) days after the filing thereof, cause
such a lien to be released of record by payment, bond, order of a court of
public jurisdiction or otherwise. In the event of Tenant's failure to release a
record of any such lien within the aforesaid period, Lessor may remove such
lien by paying the full amount thereof or by bonding or by any other method the
Lessor deems appropriate, without investigating the validity thereof and
irrespective of the fact that Tenant may contest the propriety or the amount
thereof, and Tenant, upon demand, shall pay Lessor the amount so paid out by
the Lessor in connection with the discharge of the said lien, together the
expenses incurred in connection therewith, including attorneys fees. Nothing
contained in this lease shall be construed as a consent on the part of the
Lessor to subject the Lessor's estate and the leased premises to any rent or
liability other than the land laws of the State of Kansas.
Tenant agrees to operate, occupy and maintain the leased premises in a
lawful manner and in compliance with all ordinances, statutes, and laws that
may apply or pertain thereto. In this connection, Tenant is aware of the
present zoning of said property and accepts said premises subject to the
present zoning. Also, Tenant will comply with all applicable rules and
regulations of any governmental agency or body having any jurisdiction upon or
over the premises, the operation or the maintenance thereof.
Tenant's Sign
19. Tenant may erect, supply and maintain any sign and Lessor has
no liability or duties concerning the sign, which is to say, Tenant will be
responsible for any lettering, re-painting, wording, refurbishing, maintenance,
etc.
Non Payment of Rent
20. a) Late charge and interest. If Tenant shall fail to
pay, when the same is due and payable, any rent or base rent or percentage
rent, the Tenant shall, upon demand, pay Lessor a late charge of four percent
(4%) of the past due amount together with interest on the arrears at the rate
of nine percent (9%) per annum; provided, however, the foregoing shall not
exceed the highest lawful charge that may be made to the Tenant under the laws
of the State of Kansas.
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b) It is specifically agreed by Tenant that should
Tenant neglect or fail to make any rental payment, and if such nonpayment
continues for ten (10) days, Tenant shall be deemed to be in default. In
addition, should Tenant neglect or fail to perform or to deserve any of the
other provisions of this lease and if such shall continue for ten (10) days
after Lessor shall have given written notice to Tenant specially such failure
to perform (unless such cannot reasonably be wholly cured within said 10 day
period, in which case Tenant shall have a longer period as shall be necessary
to cure the failure on the part of Tenant, so long as Tenant proceeds promptly
to completion with due diligence), Tenant shall be deemed to be in default.
c) In the event that Tenant is deemed to be in default
pursuant to the terms hereof, the Lessor may, at its sole option, terminate
this lease, or may without terminating the lease, but the Lessor shall not be
under any obligation to do so, enter into said premises, remove the Tenant's
property and signs therefrom and may relet the premises in good faith on
account of the Tenant on the best rental available and on the best terms
available without such re-entry working a forfeiture of the rents to be paid
or the covenant and promises to be performed during the full term of the Lease
Agreement. Tenant shall pay to Lessor all necessary costs and expense of such
re-entry, including, but not limited to, the cost of any repairs, changes,
alterations or additions and Tenant shall satisfy and pay to Lessor at the time
specified herein the fixed monthly rental lease due, less the amount of any
rent Lessor receives as a result of said re-entry. Also, and in any event,
Lessor shall be entitled to all of the right and remedies provided by the laws
of the State of Kansas in such cases.
d) If Lessor defaults in the observance or performance
of any term or covenant required to be performed by it under this lease, Tenant
after not less than fifteen (15) days notice and in connection therewith may
pay expenses and employ counsel, provided that Tenant shall have the right to
remedy such default without notice in the event of an emergency. All sums
expended or obligations incurred by Tenant in connection therewith shall be
paid by Lessor to Tenant upon demand, and if lessor fails to reimburse Tenant,
Lessor may, in addition to any other right or remedy that Lessor may have,
deduct such amount from subsequent installments of rent hereunder which from
time to time thereafter become due to Lessor.
The Existing Xxxxxx Sign
21. The real estate at 00000 X. Xxxxxxx which is the subject
property of this lease currently has a Xxxxxx advertising sign installed and
leased to Xxxxxx. All rental income attributable to this sign or any future
similar signs that may from time to time be leased by the lessors such monies
shall be the sole property of the
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lessor. The lessor agrees not to place any additional signage on the property
in such a way as would materially detract from the business of the tenant.
Accord and Satisfaction
22. No payment by tenant or receipt by lessor of a lesser amount
than the monthly rent an other charges herein reserved shall be deemed to be
other than on account of the earlier stipulated rent or other charges, nor
shall any endorsement or statement on any check or on any letter accompanying
any check be deemed in accord and satisfaction.
Nondisturbance agreement
23. The Landlord represents that there is presently no existing
superior lease. The Landlord shall deliver to the Tenant, on the Commencement
Date of this Lease, a nondisturbance agreement from the then existing
mortgagee, and concurrently with the execution of future superior mortgages,
shall deliver a nondisturbance agreement from such mortgagees, in the form
approved and prepared by such holder, and reasonably satisfactory to the
Tenant.
24. It is specifically understood and agreed by Tenant that all of
the fixtures, equipment, furniture, trade fixtures, shelving, signs, utensils,
etc., of every kind and nature, and all improvements made in and about the
premises, and everything used therein, are subject to a lien and security
interest, in favor of the Lessor, to secure Lessor for the full, faithful and
complete performance of all of the terms and conditions of this Lease Agreement
by Tenant or any assignee of Tenant. In the event of default in any of the
terms and conditions of the Lease Agreement Lessor may avail himself of the
rights granted to him by virtue of the laws of the State of Kansas in all such
cases made and provided and all of the rights afforded Lessor under and by
virtue of the terms of the Lease Agreement.
25. It is agreed this Lease Agreement shall not be placed of
record in the records of Sedgewick County, Kansas, but a memorandum of lease in
short form shall be executed and may be filed or record, if the parties so
desire.
26. The specific remedies to which the parties may resort under
the terms hereof are cumulative and are not intended to be exclusive of any
other remedy to which either party may be lawfully entitled.
27. Any notice or document required to be delivered hereunder
shall be deemed delivered when deposited in the United States mail,
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postage prepaid, certified or registered mail, return receipt requested,
addressed to the parties hereto at the respective addresses set opposite their
names below, or at such other address as may have been given written notice,
to-wit:
Lessor: BOOTS, Inc., a Kansas corporation
c/o Xx. Xxxxxx X. Xxxxxxx
00 Xxxxx Xxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Tenant: In Cahoots Limited Partnership
0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx 0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
with a copy to:
Xxxx X. Xxxxxxxx, Esquire
Xxxxxxxx and Associates
Two Leadership Square
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
28. In case either party brings an action at law or in equity
against the other in order to enforce the provisions of this lease or as a
result of any alleged default, the prevailing party shall be entitled to a
reasonable attorney's fee from the other.
29. Subject to the terms hereof, the covenants, agreements,
provisions and conditions of this lease shall be binding on an inure to the
benefit of the parties hereto, their respective representatives, successors an
assigns. Invalidity of any part of portion of the lease shall not affect the
remaining terms and conditions hereof which shall remain in full force and
effect.
30. It is agreed that the covenants and conditions contained herein
are the full and complete terms of this Lease Agreement and there are no other
agreement outstanding and that no alterations, amendments or modifications
shall be binding unless first reduced to writing and signed by both parties
hereto. This Lease Agreement may be signed in counterpart.
Hazardous Substances and Waste
31. Tenant agrees and covenants that it shall not keep, ship to,
ship from store, permit, generate, treat, or dispose in, on, and/or around, the
Leased Premises any "hazardous substances" or any "hazardous waste", as defined
in the Resource conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.
and/or the Comprehensive Environmental Response, Compensation and Liability
thereunder; or "hazardous substance" or "radioactive substances" as
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those terms are defined by Kansas law effecting the same subject matter, or any
regulations promulgate thereunder; or any radioactive material, including any
source, special nuclear or by-product material as defined at 42 U.S.C. 2011 et
seq., as amended or hereinafter amended; or any pollutant or containment or
hazardous, dangerous or toxic chemicals, materials, or substances within the
meaning of any other applicable federal, state, or local law, regulation,
ordinance, or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as amended or
hereinafter amended; unless all such laws, ordinances, rules, regulations,
requirements, etc., and each of them, are strictly adhered to and compiled with
by the Tenant.
Rider
32. A Rider consisting of one (1) page is attached hereto and
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement the day and year first above written.
BOOTS, INC>
By: XXXXXXX X. XXXXX
---------------------------------
Officer
ATTEST:
[ILLEGIBLE]
-------------------------------------
SECRETARY "LESSOR"
IN CAHOOTS LIMITED PARTNERSHIP
By: X. XXXXXXXXX
---------------------------------
ENTERTAINMENT WICHITA, INC.
General Partner
XXX XXXXXXXXX
ATTEST:
[ILLEGIBLE]
-------------------------------------
SECRETARY "Tenant"
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RIDER
Attached to and forming a part of the certain Lease date June 13, 1993,
between ("Lessor") and IN CAHOOTS LIMITED PARTNERSHIP ("Tenant"). In the event
of a conflict between any of the provisions of this lease, this Rider shall
control.
Section 1. Option to Extend Term of Lease.
(A) Tenant shall, subject to the terms of paragraph (B) and (C) thereof,
have the right to extend the term of the Lease for Two (2) periods of five (5)
Lease years each (such five year periods being herein sometimes referred to as
the "First Extended Term" and the "Second Extended Term", respectively, and any
reference to "Extended Term" shall include both the First and Second Extended
Term) from the date upon which the Primary Term of the Lease, or the term of
the Lease as extended by the First Extended Term, would otherwise expire; the
Extended Term to be upon the same terms and conditions as those specified in
the Lease including the Annual Minimum Rent specified therefor in Section 3 of
the Lease.
(B) If Tenant elects to exercise its option for either or both of the
extended Terms, Tenant shall do so by giving Lessor notice of such election, at
lease 180 days before the beginning of the applicable Extended Term.
(C) Notwithstanding anything to the contrary contained in paragraph (A)
of this Section, if (i) Tenant shall be in default in the payment of Annual
Minimum Rent or any other charge payable under the Lease or if Tenant shall be
in default of any of the other terms and provisions to be performed by Tenant
under the Lease as or the date Tenant shall have give Landlord notice of its
election to exercise its option for the Option Period or (ii) Tenant fails to
give Landlord notice of its election to exercise its option for the Option
Period in the manner required in paragraph (B) above, or (iii) Tenant having
given such notice thereafter defaults under the Lease prior to the expiration
of the then current term, and Landlord notifies Tenant that Landlord elects to
current term, negate such notice by reason of such default, the tenant shall be
deemed without further notice and without further agreement between landlord and
Tenant to have elected not to exercise its option for the Extended Term. Any
holding over or failure to vacate the Leased Premises at the end or any term
shall not be deemed or construed to be an exercise of the option for the
Extended Term or an extension of the Lease. Any termination of the Lease shall
terminate Tenant's rights of further extension hereunder. Notwithstanding
anything to the contrary contained in the Lease, the rights granted Tenant
named herein under this Section shall be personal to Tenant named herein and,
in the event of an assignment of the Lease pursuant to Article XVI of the
Lease, the rights granted to Tenant named herein under this Section shall be
of no further force and effect.
-14-
15
Exhibit A
Attached to and forming a part of this lease between the and the In
Cahoots Limited Partnership.
Legal Description:
Commencing at the Northeast corner of the East Quarter of Section 28, Township
27 South, range 2 East of the sixty Principal Meridian, Sedgewick County,
Kansas; thence south along the West line of the East half of said Northwest
Quarter, 81.9 feet to the South right-of-way line of U.S. Highway 54 as
condemned in Case No. A-54089; thence East along said highway right-of-way
line, 440 feet for a place of beginning; thence south parallel with the West
line of said East Half of said Xxxxxxxxx Xxxxxxx, 000 feet; thence west
parallel with said highway right-of-way line, 440 feet to a point on the West
line of the said East Half of said Northwest Quarter; thence South along the
West line of the said East Half of the said Northwest Quarter, 558.10 feet;
thence east parallel with the North line of said Xxxxxxxxx Xxxxxxx, 000 feet;
thence north parallel with the West line of the said East Half of said
Xxxxxxxxx Xxxxxxx, 0000.0 feet to a point on the South line of said highway
right-of-way; thence west 55 feet to the place of the beginning
-15-
16
WARRANTY DEED
009988
KNOW ALL MEN BY THESE PRESENTS:
That THE XXXX CORPORATION, an Oklahoma corporation, a corporation, party of
the first part, in consideration of the use of ****Ten and No/100**** dollars,
and other valuable considerations, in [illegible] the receipt of which is hereby
acknowledged, does hereby grant, bargain, sell and [illegible] BOOTS, INC., 00
X. Xxx, Xxxxxxxx Xxxx, XX 00000, a Kansas Corporation part(y)(ies) of the second
part, the following described real property and premises situated in Sedgwick
County, State of Kansas, to wit:
Commencing at the Northwest corner of the East Half of the Northwest Quarter
of Section 28, Township 27, South, Range 2 East of the sixth Principal
Meridian, Sedgwick County, Kansas; thence south along the West line of the
East half of said Northwest Quarter, 81.9 feet to the South right-of-way
line of U.S. Highway 54 as condemned in Case No. A-54089; thence east along
said highway right-of-way line, 440 feet for a place of beginning; thence
south parallel with the West line of said East Half of said Xxxxxxxxx
Xxxxxxx, 000 feet; thence west parallel with said highway right-of-way line,
440 feet to a point on the West line of the said East Half of said Northwest
Quarter; thence south along the West Line of the said East Half of the said
Northwest Quarter, 558.10 feet; thence east parallel with the North line of
said Xxxxxxxxx Xxxxxxx, 000 feet; thence North parallel with the West line
of said East Half of said Xxxxxxxxx Xxxxxxx, 0000.0 feet to a point on the
South line of said highway right-of-way; thence west 55 feet to the place of
beginning,
together with all its right title and interest in and to one certain private
sewer line owned by seller,
together with all the improvements thereon and the appearances thereunto
belonging and warrant the title to the same.
TO HAVE AND TO HOLD said described premises unto the said part(y)(ies) of
the second part(ies) (they) (their) heirs and assigns forever free, clear and
discharged of and from all former grants, charges, taxes, judgments, mortgages
and other items and encumbrances of whatsoever nature. EXCEPT
Signed and delivered this 31st day of August, 1993
THE XXXX CORPORATION
-----------------------------
ATTEST:
[ILLEGIBLE] By [ILLEGIBLE]
--------------------------- -----------------------------
Secretary President
Note: See statutory requirements appearing on the reverse side hereof.
================================================================================
CORPORATION ACKNOWLEDGMENT
(Oklahoma Form)
STATE OF Oklahoma, County of Oklahoma, [ILLEGIBLE]
On this 31st day of August, A.D. 1993, before me, the undersigned, a
Notary Public in and for the County and State aforesaid, personally appeared
X. X. XxXxxx to me [illegible] to be the identical person who signed the name of
the maker thereof to the within and foregoing instrument [illegible] President
and acknowledged to me that he executed the same as his free and voluntary act
and deed and as the free and voluntary act and deed of said corporation, for the
uses and purposes therein set forth.
Given under my hand and seal the day and year last above written.
My commission expires 00-00-00 /x/ XXXXXXX XXXXXXXXX
---------------------------
XxXxxxx Beouglier
[SEAL] Notary Public
