THIRD ADDENDUM TO LEASE
This is the Third Addendum, made effective as of
January 1, 1997, to that certain Lease between Capitol
Avenue Development Company, a limited partnership, an
Arkansas limited partnership ("Landlord") and TCBY
Enterprises, Inc. ("Tenant") dated as of April 20, 1987.
WHEREAS, Landlord and Tenant previously entered into an
Addendum to Lease and a Second Addendum to Lease, the sole
purposes of which were to modify and amend the Lease dated
April 20, 1987, which such Lease together with the Addenda
shall hereinafter be collectively referred to as the
"Lease"; and
WHEREAS, all terms and provisions of the Lease shall
remain in full force and effect, except as otherwise
modified or amended hereinbelow.
In consideration of the mutual covenants contained
herein, ten dollars ($10.00), and other valuable
consideration, which is hereby mutually acknowledged as
received, the undersigned agree as follows:
1. Effective January 1, 1997, the leased premises
will be reduced to 53,487 square feet located on floors 12,
13, and 14 of the building and the rental rate utilized to
calculate monthly rental shall be $13.00 per square foot of
net rentable area on floors 12, 13, and 14, consisting of
53,487 square feet. (The annual rent shall thus be $695,331
for 1997.) This rental rate shall be escalated by 3%
annually each January 1, commencing January 1, 1998. All
escalations shall be compounded, meaning that each annual
increase shall be applied to the then current rental set
each January 1.
2. The term of the Lease shall be extended for a
period of ten (10) years commencing January 1, 1997, and
terminating December 31, 2006.
3. Tenant shall pay Landlord $175,000 along with
its January, 1997 rent, as partial consideration for
Landlord's modification of the Lease and Addendums One and
Two. This shall be in full satisfaction of Tenant's base
rental rate obligations under the Lease and Addendums One
and Two which are now being modified.
4. Tenant shall be provided with the calculations
for its 1996 operating expense reimbursement obligation
under the Lease and shall make such payment to Landlord
consistent with the terms and conditions of the Lease and
Addenda prior to this Third Addendum. Commencing January 1,
1997, and for the ten- year period of this lease extension
and during the option period, if exercised, Tenant shall not
be required to pay any additional operating expense
reimbursement.
5. Tenant is hereby granted an option to extend the
Lease for an additional ten (10) year period, on the same
terms and conditions, including the 3% annual escalator
(compounded in the same manner as set forth in paragraph 1,
above, commencing with the first 3% increase on January 1,
2007, over the annual rental paid in 2006), upon giving
Landlord written notice of at least 180 days prior to
December 31, 2006. This renewal option shall henceforth be
the only renewal option, and all other options set forth in
the Lease are hereby deleted from the Lease and shall have
no force or effect.
6. Landlord covenants with Tenant not to install
roof antennae or other devices, structures, coverings, or
visual obstructions of any sort which will block the view of
the "TCBY" lettering on the top of the building. As of the
date of execution of this Third Addendum, Tenant hereby
acknowledges Landlord's compliance with this paragraph.
7. Both Landlord and Tenant understand and agree
that this Third Addendum to the Lease must be approved by
Landlord's Mortgagee, Texas Teacher Retirement System, and
the parties agree to use their best efforts to secure its
approval. If approval is not obtained by December 15, 1996,
and confirmed to Tenant, neither party hereto shall be bound
by the terms and conditions herein set forth.
8. Tenant hereby acknowledges and confirms to
Landlord that no additional tenant improvements or
allowances are required of Landlord pursuant to this Third
Addendum in either the initial term commencing January 1,
1997, or the renewal term, if exercised.
9. During the ten-year lease term commencing
January 1, 1997, and the ten-year renewal set forth above,
if exercised, Landlord shall provide Tenant with free use of
up to 150 parking spaces in the adjacent TCBY Tower parking
structure. Any spaces not utilized by Tenant at any time
during the term or renewal term, if exercised, shall be
available to Landlord. From time to time Landlord may
inquire of Tenant, or Tenant shall notify Landlord, as to
Tenant's total number of Tenant's employees in the offices
at the TCBY Tower, and any remainder resulting from
subtracting that number from 150 shall be deemed to be the
number of parking spaces not utilized by Tenant and thus
available to Landlord. It is anticipated by the parties
that the number of spaces available to Landlord shall
fluctuate in accordance with Tenant's total number of
employees in the TCBY Tower, but under no circumstances
shall Landlord have any duty whatsoever to furnish more than
150 parking spaces to Tenant at any time.
10. Any reference in the Lease to Tenant's right to
expand its space or right of first refusal on space in the
TCBY Tower is hereby deleted from the Lease.
11. This Third Addendum, executed on the date set
forth below, supersedes that certain Third Addendum executed
by the parties on November 26, 1996.
IN WITNESS WHEREOF, Landlord and Tenant have executed
this Third Addendum this _26th_ day of
_______November_______, 1996.
CAPITOL AVENUE DEVELOPMENT
COMPANY, A LIMITED
PARTNERSHIP, AN ARKANSAS
LIMITED PARTNERSHIP
Witness:
/s/ Xxxxx Xxxxxx, Xx.
___________________________________
/s/ Xxxx Xxxxx
By:________________________________
TCBY ENTERPRISES, INC.
Witness:
/s/Xxxxxxx X. Xxxxxxxx
___________________________________
/s/ Xxxx Xxxxxx
By:________________________________
