EXHIBIT 10.37
AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement (the "Amendment") is entered into
effective as of December 20, 1993 between Xxxx Xxxxxxxx and Xxxxxxxxxx X.
Xxxxxxxx (collectively, the "Landlord") and House of Blues New Orleans
Restaurant Corp. (the "Tenant"), formerly known as House of Blues Partnership
Management Corporation.
INTRODUCTION
A. Xxxx Xxxxxxxx, as Landlord, and House of Blues Partnership
Management Corporation, as Tenant, entered into that certain Lease Agreement
(the "Lease") dated October 15, 1992, and pertaining to a portion of the
property located at 000-000 Xxxxxxx Xxxxxx xx Xxx Xxxxxxx, Xxxxxxxxx.
B. Landlord and Tenant have agreed to amend the Lease in accordance
with the terms of this Amendment.
In consideration of the terms of this Amendment, the Landlord and
Tenant do hereby amend the Lease as follows:
AMENDMENT
1. Name Of Tenant. Tenant represents that it has changed its name
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from House of Blues Partnership Management Corporation to House of Blues New
Orleans Restaurant Corp. and that its employer identification number is
00-0000000. Accordingly, the name of Tenant for purposes of the Lease shall be
"House of Blues New Orleans Restaurant Corp."
2. Landlord. Xxxxxxxxxx X. Xxxxxxxx hereby executes the Lease as
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Landlord. Accordingly, the term "Landlord" as used in the Lease shall mean Xxxx
Xxxxxxxx and Xxxxxxxxxx X. Xxxxxxxx.
3. Assignment by Landlord. The second sentence in Section 6.2 of the
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Lease is hereby deleted and the following is inserted in its place:
"If Landlord sells or otherwise transfers the Property and the
transferee assumes Landlord's obligations under this Lease arising
after the date of the transfer, (a) Landlord shall be released from
any further obligations under this Lease arising after the date of the
transfer and Tenant shall look solely to the successor in interest of
Landlord for performance of these obligations, and (b) the transferee
shall have no liability for any obligations or liabilities that arose
prior to the date of the transfer and Tenant shall look solely to
Landlord for the satisfaction of these obligations and liabilities."
4. Completion of Initial Construction. Section 8.1 of the Lease
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obligates Tenant to complete the Initial Construction no later than October 14,
1993. Landlord and Tenant have agreed to extend the completion date until April
15, 1994. Accordingly, the second and third sentences of the first paragraph of
Section 8.1 are hereby deleted and the following is inserted in their place:
"The Initial Construction began before the effective date of this
Amendment. The Initial Construction itemized in the Approved
Plans shall be substantially completed on April 15, 1994."
Also, subparagraph (a) in the second paragraph of Section 8.1 is hereby deleted
and the following is substituted in its place:
"(a) The Exhibit C Work itemized in the Approved Plans and the
remainder of the Initial Construction itemized in the Approved Plans
are substantially completed in accordance with the Approved Plans no
later than April 15, 1994;".
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4A. Definition of Initial Construction. The term "Initial
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Construction" shall mean the demolition, construction and improvement of the
Property in accordance with the Approved Plans and shall also specifically
include all of the Exhibit C Work.
5. Substantial Completion. The phrases "substantially completed"
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and "substantial completion" as used in this Lease shall mean the Initial
Construction is sufficiently complete in accordance with the Approved Plans so
Tenant can occupy or utilize the Demised Premises for its intended use.
6. Rental Credit for Exhibit C Work. Section 3.1(h) provides for a
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rental credit in the amount of $61,000.00 for the Exhibit C Work (the "Exhibit C
Rental Credit"). Section 3.1(h) also provides that Tenant is entitled to the
Exhibit C Rental Credit only if the requirements in Section 8.1 are satisfied.
Tenant has already taken a portion of the Exhibit C Rental Credit even though
all requirements in Section 8.1 have not yet been satisfied. Landlord and
Tenant have agreed that Tenant may continue to take the Exhibit C Rental Credits
during the period of Initial Construction and that if the requirements in
Section 8.1, as amended hereby, are not satisfied, Tenant will reimburse
Landlord for the amount of the Exhibit C Rental Credits previously taken.
Accordingly, the following is added at the end of the second paragraph of
Section 3.1(h):
"Tenant may utilize the rental credits for the Exhibit C Work in
accordance with this schedule even though a portion of the rental
credit may be taken before the requirements in Section 8.1 are
satisfied. If a requirement in Section 8.1 is not satisfied within 30
days after receipt by Tenant of a written notice from Landlord of
Tenant's failure to comply with its obligations, Tenant shall not he
entitled to any further rental credits for the Exhibit C Work and
Tenant shall pay to Landlord within five (5) days after expiration
of the 30-day cure period the full amount of the rental credits for
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the Exhibit C Work previously taken by Tenant plus interest at the
legal rate (as defined in Louisiana Civil Code Article 2924B(3)) from
the date the rental credit was taken until paid."
7. Security for Initial Construction. Section 8.6 is hereby deleted
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and the following is substituted in its place:
"If the Lease terminates for any reason before substantial completion
of the Initial Construction, specifically including the Exhibit C
Work, Xxxxx Xxxxxxx does hereby agree to pay to Landlord the lesser of
(a) $l,000,000, or (b) the cost to complete the Infrastructure (as
hereafter defined)in the Building in accordance with the Approved
Plans and the requirements of Section 8.8. The Infrastructure means
the following portions of the Initial Construction: (i) All foundation
and structural work; (ii) All utilities, including electric, gas and
water; (iii) All mechanical, including plumbing; (iv) All sprinkler
and fire protection systems; and (v) All ingress and egress, including
elevators and stairways. The amount due shall be payable on the date
of termination of the Lease and shall bear interest from and after
that date at the legal rate (as defined in Louisiana Civil Code
Article 2924B(3)). If the parties are unable to agree on the amount
due, the amount shall be determined by arbitration in accordance with
the terms of Section 14.6 of the Lease. The amount payable by Xxxxx
Xxxxxxx shall constitute stipulated damages, shall be payable without
deduction or set-off and shall not be credited against any rent,
charges or damages paid or payable by Tenant."
8. Tax and Insurance Contributions. Sections 3.3 and 3.4 of the
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Lease obligate Tenant to pay to Landlord tax and insurance contributions based
on Tenant's proportionate share of the real estate taxes and insurance premiums.
Landlord and Tenant have agreed that for the years 1992, 1993 and 1994 Tenant's
proportionate share for the purposes of Sections 3.3 and 3.4 shall be 85%.
9. Release and Indemnity. For and in consideration of the execution
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of this Amendment, Tenant does hereby release, waive and forever discharge
Landlord and Landlord's
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employees, agents, representatives, attorneys, consultants, successors and
assigns of and from any and all claims, causes of action, damages, obligations
and liability, whether now known or unknown, whether accrued or contingent,
based on acts or omissions on or before the date of this Amendment and arising
out of, pertaining to or in any way related to the Lease, the Property or the
Initial Construction, including but not limited to any claim for loss of income
or any claim for interference with or delay in the performance of the Initial
Construction.
Contemporaneously with execution of this Amendmendment, Tenant shall
obtain and deliver to Landlord releases from CAFCO, CT Management, Inc. and
Xxxxxx Construction Company in the form attached hereto as Exhibits A-l through
A-2.
Tenant does hereby agree to defend, indemnify and hold harmless
Landlord and Landlord's partners, shareholders, officers, directors, employees,
agents, consultants, representatives, insurers, attorneys, successors and
assigns (collectively, the "Indemnitees") from and against any and all claims,
causes of action, demands, damages and liabilities, including but not limited to
any claim for loss of income or any claim for interference with or delay in the
performance of the Initial Construction, whether now known or unknown, whether
accrued or contingent, based on acts or omissions on or before the date of
this Amendment and arising out of, pertaining to or in any way relating to the
Lease, the Property or the Initial Construction and asserted now or hereafter by
CAFCO, CT Management, Inc., and/or Xxxxxx Construction Company (collectively,
"Tenant's Agents"). Expenses incurred in defending an action, suit or
proceeding by one or more of Tenant's Agents against one or more of the
Indemnitees and arising out of, pertaining to or in any way related to the
Lease, the Property or the Initial Construction shall be paid by Tenant in
advance of the final disposition thereof upon receipt of
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an undertaking by the Indemnitee to repay the amount if it is ultimately
determined that the Indemnitee is not entitled to indemnification by Tenant.
10. Gross Sales. The definition of Gross Sales for the purpose of
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determining percentage rent was intended to include all Gross Sales from food
and beverage (includiing alcoholic) generated by the business. The Approved
Plans indicate the business may be expanded to the building located at 000
Xxxxxxx Xx. (hereafter the "Xxxxxxx'x Building"). Landlord does hereby approve
the expansion of the business to the Xxxxxxx'x Building. The plans and
specifications for the connection(s) between the Xxxxxxx'x Building and the
Demised Premises to accommodate this expansion shall be subject to Landlord's
approval, which approval shall not be unreasonably withheld. In consideration
of the foregoing Tenant agrees that, if a business in the Xxxxxxx'x Building is
an expansion of the business conducted in the Demised Premises, the Gross Sales
from food and beverages (including alcoholic) from the Xxxxxxx'x Building will
be added to the Gross Sales from the Demised Premises for the purpose of
determining percentage rent. Accordingly, the first sentence of Section 3.2(c)is
hereby deleted and the following is substituted in its place:
"The term Gross Sales means (a) the aggregate dollar amount of all
sales of food and beverages (including alcoholic) by Tenant and all
assignees, licensees, concessionaires, subtenants and others at or
from the Demised Premises, plus (b) if a business in the property
located at 000 Xxxxxxx Xxxxxx is an expansion of the business
conducted in the Demised Premises, the aggregate dollar amount of all
sales of food and beverages (including alcoholic) by Tenant and all
assignees, licensees, concessionaires, subtenants and others at or
from such business located in the property at 000 Xxxxxxx Xxxxxx."
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11. Approved Plans. The last paragraph of Section 8.1 of the Lease
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is hereby deleted and the following is substituted in its place:
"Landlord has reviewed and does hereby approve the plans for the
renovation and improvement of the Demised Premises described on
Exhibit B attached hereto (the "Approved Plans"). Each sheet of the
Approved Plans has been initialed by Landlord and Tenant. These plans
shall hereafter be the "Approved Plans" for the purposes of the Lease.
The Initial Construction shall be performed in accordance with the
Approved Plans.
Landlord shall have the right to review and approve the following
changes to the Approved Plans (the "Material Changes"):
(a) Change to the Exhibit C Work, whether or not the change is
material; or
(b) The change, either separately or together with other changes, is
a material change to the structural, mechanical or electrical
documents.
The term "material" as used in subparagraphs (a) and (b) above means
having real importance or great consequences to Landlord's interest in
either (a) the remainder of the Building outside of the Demised
Premises, or (b) the structural, mechanical or electrical integrity of
the Demised Premises after termination of this Lease by default or
expiration of the Term.
Landlord has no interest in and has no right to review and approve
changes to the Approved Plans that are not Material Changes.
Landlord's approval of a Material Change shall be in writing.
Landlord shall not unreasonably withhold its consent to a proposed
Material Change.
Tenant shall submit to Landlord in writing a proposed Material Change
to the Approved Plans as soon as the proposed change is available.
Tenant shall deliver the proposed Material Change to Landlord's
designated representative. Until Landlord provides written notice to
Tenant of a change concerning its representative, Landlord's
designated representative for this purpose shall be Landlord's
architect, Xxxx X. Xxxxxxxx, whose address for the purposes of
delivering notices hereunder is One Canal Place, 365
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Canal Street, Suite 2900, Xxx Xxxxxxx, Xxxxxxxxx 00000 and whose
facsimile number is (000) 000-0000. Landlord shall have 4 business
days (Monday through Friday, excluding legal holidays in the City of
New Orleans) within which to approve or disapprove the proposed
Material Change. Landlord shall deliver its response to Tenant's
designated representative by personal delivery, facsimile, courier or
other similar form of delivery. Until Tenant provides written notice
to Landlord of a change concerning its representative, Tenant's
designated representative shall be Xxx Xxxxx, whose address for the
purposes of delivering notices hereunder is at the Demised Premises
and whose facsimile number is (000) 000-0000. If Landlord fails to
deliver its response within the required 4 business days, the proposed
Material Change to the Approved Plans shall be deemed to have been
approved by Landlord. If Landlord disapproves a proposed Material
Change, Landlord shall deliver to Tenant along with the notice of
disapproval Landlord's reasons for the disapproval plus a reasonable
alternative, if a reasonable alternative is then known, to the
rejected proposed Material Change.
Tenant shall, to the extent feasible, obtain Landlord's approval to a
proposed Material Change before performing the work. There may,
however, be situations in which it is not feasible to obtain
Landlord's consent to a Material Change before the work is performed.
In these cases, Landlord recognizes Tenant's legitimate scheduling and
construction requirements and acknowledges that this approval process
cannot delay the performance of the work. In these cases, Tenant may
perform the work prior to obtaining Landlord's prior approval to the
Material Change, provided, however, Tenant must still submit the
proposed Material Change to Landlord for its approval. If Landlord
subsequently disapproves the proposed Material Change, Tenant shall
either invoke the arbitration provisions contained in the following
paragraph or make the necessary changes to the Initial Construction to
make the work conform to the Approved Plans without the disapproved
Material Change.
If Landlord disapproves a proposed Material Change to the Approved
Plans, Tenant may at any time thereafter initiate an arbitration
proceeding to contest Landlord's decision. The arbitration shall be
conducted in accordance with the terms of Section 14.6 of this Lease.
If the arbitrator(s) determine that Landlord has unreasonably withheld
its approval for the proposed
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Material Change, the arbitrator(s) may overrule Landlord's decision
and grant the requested approval for the proposed Material Change. If
the arbitrator(s) determine that Landlord did not unreasonably
withhold its approval, Tenant shall not make the proposed Material
Change or, if already made, make the necessary changes to the Initial
Construction to make the work conform to the Approved Plans without
the disapproved Material Change.
Within 60 days after substantial completion of the Initial
Construction, Tenant shall deliver to Landlord a complete reproducible
set of as-built plans of the Initial Construction.
Notwithstanding Landlord's right to review and approve the Approved
Plans and any Material Changes thereto, Landlord and its consultants
and representatives shall have no liability for a failure to discover
and/or disclose a defect, deficiency, error or omission in the
Approved Plans or any changes thereto or for the non-compliance of the
Approved Plans or any changes thereto with the terms of this Lease or
applicable laws, building codes or regulations.
Tenant shall assign to Landlord all warranties and guarantees from the
elevator manufacturer, installer and others pertaining to the street
and alley elevators. The assignment of the warranties and guarantees,
for the street elevator shall be effective as of the completion of
installation of the elevator. The assignment of the warranties and
guarantees for the alley elevator shall be effective as of the date of
termination of this Lease.
Landlord and Tenant acknowledge that the Approved Plans do not include
plans for all of the Exhibit C Work. Tenant remains obligated to
perform all of the Exhibit C Work. Approval by Landlord of the
Approved Plans shall not modify Tenant's obligation to complete all of
the Exhibit C Work. With respect to the portion of the Exhibit C Work
that is not included in the Approved Plans, Tenant shall prepare and
submit to Landlord for Landlord's approval plans and specifications
for the work, which approval shall not be unreasonably withheld. When
these additional plans and specifications are approved by Landlord,
these plans and specifications shall become part of the Approved
Plans.
Without limiting the generality of the foregoing, the Approved Plans
do not include plans for the following major items in Exhibit
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C: (a) completion of the street and alley elevators from the fourth
floor to the fifth floor as required by paragraphs C(1) and (2) of
Exhibit C (the "Elevators Extension"); (b) completion of the stairs
from the fourth floor to the fifth floor as required by paragraph
C(4)of Exhibit C (the "Stairs Extension"); and (c) the sound
separation as required by paragraph C(15) of Exhibit C (the "Sound
Separation"). Tenant shall begin the Elevators Extension and the
Stairs Extension as soon as possible after notice by Landlord but in
no event later than ninety (90) days after a notice to proceed from
Landlord. Tenant shall complete the Elevators Extension and the
Stairs Extension within ninety (90) days after the date of
commencement of this work.
Notwithstanding anything to the contrary in this Lease, the
construction contract or contracts for the Elevators Extension, the
Stairs Extension and the Sound Separation shall each include a bond
for the full amount of the contract (which bond shall name Landlord as
an additional insured and shall comply with the requirements of
La. R. S. 9:4801 et. seq.) and shall be filed (with the bond attached)
in the Office of the Recorder of Mortgages for the Parish of Orleans
prior to commencement of work under the contract.
As of the date of this Amendment, Landlord and Tenant have not agreed
upon the appropriate sound separation required by paragraph C(15) of
Exhibit C. Tenant contends that the sound separation provided or
proposed to be provided by Tenant satisfies Tenant's obligations under
the Lease. Landlord contends that additional and/or alternative sound
separation is required to be provided by Tenant. In an effort to
accommodate the timely opening of Tenant's business, Landlord and
Tenant have agreed to reserve all rights with respect to the sound
separation issue and defer resolution of this dispute until after the
opening of Tenant's business in accordance with the following. Within
forty-five (45) days after the public opening of Tenant's business,
Landlord and Tenant shall complete their review of the actual results
of the sound separation provided by Tenant and attempt to resolve this
dispute. If Landlord and Tenant are unable to resolve the dispute
within this 45-day period, either Landlord or Tenant may initiate
arbitration in accordance with the terms of Section 14.6 of the Lease,
to resolve the dispute."
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12. Construction Requirements. The following is added at the end of
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subparagrahp 8.8(b):
"Notwithstanding Landlord's inspection of the work, Landlord and its
consultants and representatives shall have no liability for a failure
to discover and/or disclose a defect, deficiency, error or omission in
the work or for the non-compliance of the work with the terms of this
Lease, the approved plans and specifications or applicable building
laws, building codes or regulations."
13. Xxxxxxx'x Building - Kitchen. Landlord has reviewed and does
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hereby approve the plans for Tenant's kitchen as described in the Approved
Plans, which kitchen is located in both the Demised Premises and the Xxxxxxx'x
Building. In addition to Landlord's right to review and approve Material
Changes to the Approved Plans, Landlord shall have the right to review and
approve proposed changes to the kitchen, which approval shall not be
unreasonably withheld. For these purposes, Landlord's approval rights shall be
limited to ascertaining whether the kitchen in the Demised Premises constitutes
sufficient space and infrastructure facilities capable of allowing future
tenants or Landlord to service the patrons of the business in the Demised
Premises.
Landlord acknowledges that Tenant has kitchen facilities in the rear
of the building located at the Xxxxxxx'x Building. Landlord hereby consents to
two (2) openings in the wall separating the kitchen in the Demised Premises from
the ancillary kitchen facilities in the Xxxxxxx'x Building in accordance with
the Approved Plans. The connection between the kitchen in the Demised Premises
and the ancillary kitchen facilities in the Xxxxxxx'x Building shall be used
only to connect the two kitchen facilities. It shall be used only by kitchen
personnel and other employees of Tenant utilizing the kitchen facilities. It
shall not be used by patrons of the
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business except for fire or other hazard exit if required by any applicable
code. Tenant's right to use the openings described above in this Section 13
shall terminate on the earlier to occur of (a) the permanent termination of the
use of Xxxxxxx'x Building as ancillary facilities or (b) the termination of this
Lease. Upon the termination of Tenant's right to use the openings, Tenant shall
reinstall the brick infill and close the openings in accordance with the
requirements described below in Section 27.
14. Division of Xxxxxxx'x Building Lease. Tenant is the lessee of
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the Xxxxxxx'x Building under that certain Lease Agreement (the "Xxxxxxx'x
Lease") dated April 30, 1993, by and between Xxxxx Xxxx, Xxxxx Xxxx and Xxxxxxx
Xxxxxxxxx, as landlord. Contemporaneously with the execution of this Amendment,
Tenant shall cause the owners of the Xxxxxxx'x Building to agree to split the
Xxxxxxx'x Lease into the following two leases in the event of an uncured default
or termination of this Lease or the Xxxxxxx'x Lease:
(a) A lease of the area(s) where the HVAC equipment will be located
(the "HVAC Pad Portion"); and
(b) A lease of the remainder of the Xxxxxxx'x Building, excluding the
HVAC Pad Portion.
The HVAC equipment for the Demised Premises (as described below in Section 19 of
this Amendment) shall be in the portion of the premises covered by the HVAC Pad
Portion of the Xxxxxxx'x Lease.
15. Xxxxxxx'x Building - Option to become Assignee. Tenant does
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hereby irrevocably grant to Landlord the option to become the assignee of the
entire Xxxxxxx'x Lease or the lessee under a separate lease of the HVAC Pad
Portion of the Xxxxxxx'x Lease. Landlord
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shall only have the right to exercise this option upon the occurrence of one of
the following events: (a) termination of this Lease; or (b) default by Tenant
under the Xxxxxxx'x Lease, which default is not cured by Tenant five (5) working
days before expiration of the cure period. In the event of an occurrence of one
of these events, Landlord may exercise its option by providing a written
exercise notice to Tenant and to the owners of the Xxxxxxx'x Building no later
than 60 days after the termination of this Lease if this Lease is terminated or
before the termination of the Xxxxxxx'x Lease if there is an uncured default
thereunder. Upon the exercise of this option and without any further action,
Landlord shall become the assignee of the entire Xxxxxxx'x Lease or the lessee
under a separate lease of the HVAC Pad Portion of the Xxxxxxx'x Lease. If
Landlord elects to become the lessee under a separate lease of the HVAC Pad
Portion of the Xxxxxxx'x Lease, the separate lease shall be on the same terms
and conditions as the current form of the Xxxxxxx'x Lease, except (a) the rent
for the HVAC Pad shall be $500 per year, (b) the tenant under the separate lease
for the HVAC Pad shall have the continuing option to terminate the lease by
forfeiting any prepaid rent, and (c) the tenant under the separate lease of the
HVAC Pad shall not be responsible for any portion of the taxes, insurance and
maintenance of the land, buildings or any portion thereof. The provisions of
this Section 15 shall survive the termination of the Lease.
16. Xxxxxxx'x Building - Option to Purchase. Pursuant to Article
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XXXIV of the Xxxxxxx'x Lease, Tenant has the option to purchase the Xxxxxxx'x
Building. If Tenant does not exercise its option to purchase the property prior
to June 30, 1994, Tenant does hereby irrevocably assign to Landlord the right to
exercise the option to purchase the Xxxxxxx'x Building in Landlord's own name
provided that Landlord exercises the option on or before August 31,
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1994. If Landlord fails to exercise its option by August 31, 1994, Landlord's
right to exercise the option shall thereupon terminate. If Landlord buys the
Xxxxxxx'x Building, Landlord agrees to purchase the building subject to the
Xxxxxxx'x Lease, as amended.
17. Xxxxxxx'x Building - Right of First Refusal. If Tenant becomes the
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owner of the Xxxxxxx'x Building at any time during the Term of this Lease,
Landlord shall have a right of first refusal to purchase the Xxxxxxx'x Building
in accordance with the terms of this Section 17 of this Amendment. If Tenant
purchases and thereafter desires to sell the Xxxxxxx'x Building at any time
during the Term of this Lease, Tenant shall first give to Landlord a notice
("First Refusal Notice") stating that Tenant desires to sell the Xxxxxxx'x
Building and stating the terms and conditions upon which Tenant is willing to
sell (the "Proposed Terms"). The First Refusal Notice shall constitute an offer
by Tenant to Landlord to sell the Xxxxxxx'x Building to Landlord on the Proposed
Terms. Tenant may send a First Refusal Notice whether or not there is a
prospective purchaser. Landlord may accept the offer and agree to purchase the
Xxxxxxx'x Property on the Proposed Terms by delivering to Tenant within fourteen
(14)days after receipt of the First Refusal Notice Landlord's unqualified
written acceptance of the offer. If Landlord accepts the offer, Landlord shall
purchase the Xxxxxxx'x Building from Tenant in accordance with the Proposed
Terms. If Landlord does not accept Tenant's offer, Tenant may sell the Xxxxxxx'x
Building to any other person or entity on terms and conditions that are no more
favorable financially to the prospective purchaser than the Proposed Terms
(considering both as a whole rather than comparing specific individual items) at
any time within 180 days after the expiration of Landlord's 14-day first refusal
option. Before entering into the sale, Tenant shall deliver to Landlord
for Landlord's review a copy of the terms of the proposed sale, which copy
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if so designated by Tenant may constitute a new First Refusal Notice within the
meaning of the following paragraph. Tenant may delete from the copy delivered to
Landlord the name of the proposed purchaser, if known, and any other
confidential information that is not relevant to Landlord's comparison of the
financial terms of the proposed sale to the Proposed Terms. If Landlord fails
to notify Tenant within fourteen (14) days after receipt of the proposed sale
that the proposed sale, as a whole, is more favorable financially to the
prospective purchaser than the Proposed Terms, then any objection Landlord may
have to the proposed sale shall be deemed waived.
If at any time during the 180-day period described in the previous
paragraph Tenant proposes to sell the Xxxxxxx'x Building on terms and conditions
that are more favorable financially to the prospective purchaser than the
Proposed Terms, then Tenant shall first re-offer the Xxxxxxx'x Building to
Landlord on the new terms and conditions. The re-offer shall be made by sending
to Landlord a new First Refusal Notice containing the new Proposed Terms.
Landlord may accept the new offer and agree to purchase the Xxxxxxx'x Property
on the new Proposed Terms by delivering to Tenant within fourteen (14) days
after receipt of the new First Refusal Notice Landlord's unqualified written
acceptance of the new offer. If Landlord accepts the new offer, Landlord shall
purchase the Xxxxxxx'x Building from Tenant in accordance with the new Proposed
Terms. If Landlord does not accept Tenant's offer, Tenant may sell the Xxxxxxx'x
Building to any other person or entity on terms and conditions that are no more
favorable financially to the prospective purchaser than the new Proposed Terms
(considering both as a whole rather than comparing specific individual items) at
any time within 180 days after the expiration of Landlord's 14-day first refusal
option.
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18. Xxxxxxx'x Building - Donation of Dog-Leg Portion. If Tenant
------------------------------------------------
becomes the owner of the Xxxxxxx'x Building and if Tenant desires to sell or
otherwise transfer the Xxxxxxx'x Building to a third party not affiliated with
Tenant or its affiliates or Landlord or its affiliates or if the Lease
terminates, Tenant shall prior to the sale or other transfer or within 30 days
after the termination of the Lease donate to Landlord the property (land and
improvements) covered by the one-story structure in the rear of the Xxxxxxx'x
Building (the "Dog-Leg Portion"). If a resubdivision of the Xxxxxxx'x Building
is required by applicable governmental authorities as a condition to the
donation, Landlord shall obtain the resubdivision at its own cost and expense.
Tenant shall cooperate with Landlord, including but not limited to executing the
application for resubdivision. If a resubdivision cannot be obtained, then,
instead of a donation, Tenant shall grant to Landlord a perpetual predial
servitude to use the property covered by the Dog-Leg Portion.
19. Xxxxxxx'x Building - HVAC Pad. Landlord and Tenant intend to
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locate on the roof of the Xxxxxxx'x Building their respective HVAC equipment for
the Building. Landlord and Tenant have approved this arrangement subject to the
following conditions.
Tenant's HVAC equipment for the Demised Premises ("Tenant's HVAC
Equipment")shall be located on the roof of the Xxxxxxx'x Building in the area
covered by the HVAC Pad Portion of the Xxxxxxx'x Lease. Tenant shall be
obligated to maintain and repair Tenant's HVAC Equipment on the Xxxxxxx'x
Building roof in accordance with the maintenance and repair obligations in
Section 9 of the Lease as if the equipment were located on the Demised
Premises
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During the entire term of the Xxxxxxx'x Lease and at no charge to
Landlord, Landlord's HVAC Equipment for the remainder of the Building outside of
the Demised Premises ("Landlord's HVAC Equipment") may also be located in the
area covered by the HVAC Pad Portion of the Xxxxxxx'x Lease. Tenant shall have
the right to review and approve Landlord's plans for Landlord's HVAC Equipment
on the roof of the Xxxxxxx'x Building, which approval shall not be unreasonably
withheld. The installation, maintenance and repair of Landlord's HVAC Equipment
on the roof of the Xxxxxxx'x Building shall be performed by or on behalf of
Landlord at Landlord's expense.
Upon the earliest to occur of (a) the termination of this Lease or any
extension or renewal hereof, (b) the termination of the Xxxxxxx'x Lease as a
result of a default by Tenant, or (c) the exercise of Landlord's option under
Section 15 of this Amendment to become the lessee under a separate lease of the
HVAC Pad, all equipment and other items located on the premises covered by the
HVAC Pad Portion of the Xxxxxxx'x Lease, including all HVAC equipment, shall
without any further action, become the property of Landlord without compensation
to Tenant.
As a result of the HVAC Pad arrangement, the Roof Pad will no longer
be needed by Tenant. Accordingly, the first sentence of Section 1.2 of the Lease
is hereby amended to read as follows:
The "Demised Premises" consists of (a) all of the first two floors of
the Building, including mezzanine areas located therein, but excluding
the area to be occupied by the street elevator and street lobby and
identified as the "Excluded Area" on sheet 1 of the plans attached
hereto as Exhibit B, and (b) the portion of the Land consisting of the
existing alley on the north side of the Building and the currently
unimproved area in the rear of the Building.
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20. Xxxxxxx'x Building - Vault. Tenant has informed Landlord that it
--------------------------
will locate a vault in the Xxxxxxx'x Building. The vault will contain
transformers supplied by NOPSI. The electrical service for the Building will be
provided from these transformers. If necessary to ensure reliable electrical
service to the Building, including the portions of the Building outside of the
Demised Premises, Tenant shall obtain from NOPSI and/or the owners of the
Xxxxxxx'x Building a servitude or other appropriate arrangement for the benefit
of the Building. Landlord consents to one opening in the wall separating the
Building and the Xxxxxxx'x Building for the electrical line to provide
electrical service from the transformer vault to the Building. Tenant's right to
use this opening shall terminate on the earlier to occur of (a) the termination
of this Lease, or (b) when electrical service for the Building is obtained from
a location other than through this opening. Upon the termination of Tenant's
right to use this opening, Tenant shall close the opening in accordance with
the requirements described below in Section 27.
21. Windows. Landlord intends to create up to eight (8) new windows in
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the wall above the Demised Premises facing the Xxxxxxx'x Building. To the extent
Tenant's consent is required under the Lease or as tenant of the Xxxxxxx'x
Building, Tenant does hereby grant its consent to the creation of these windows
as long as this work does not jeopardize Landlord's or Tenant's tax credit for
the rehabilitation of the Building. Tenant shall make a good faith best effort
attempt to obtain a similar consent from the owners of the Xxxxxxx'x Building at
no cost to Tenant.
22. Tax Credit. Landlord and Tenant shall coordinate their respective
----------
work in the Building in an attempt to qualify for the tax credit for their
respective projects. Landlord
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and Tenant shall make a good faith best effort attempt to qualify for the tax
credit for their respective work. Neither Landlord nor Tenant shall take any
action that jeopardizes the tax credit for the other party.
23. Landlord's Expenses. Contemporaneously with the execution of this
-------------------
Amendment, Tenant has paid to Landlord the sum of $25,000 to reimburse Landlord
for its architectural, engineering and legal fees incurred in connection with
the modification of the structural plans and the negotiation of this Amendment.
Landlord hereby acknowledges receipt of the sum of $25,000 in full payment and
satisfaction of any and all claims Landlord may have against Tenant in
connection with the modification of the structural plans and the negotiation of
this Amendment, including but not limited to architectural, engineering and
legal fees.
24. Arbitration. The first sentence of Section 14.6 of the Lease is
-----------
hereby deleted and the following is substituted in its place:
"Any dispute between the parties relating to the interpretation and
enforcement of their rights and obligations under Sections 8.1 through
8.6, including but not limited to the Exhibit C Work and the remainder
of the Initial Construction, shall be resolved solely by mandatory and
binding arbitration in accordance with the provisions of this Section
14.6."
25. Temporary Use of Roof Pad. From time to time during the Term of
-------------------------
the Lease, Tenant shall have the right to use the roof of the Building to locate
equipment used for broadcast or transmission of events, shows or productions
staged at the Demised Premises. The equipment shall be located in an area on the
roof designated by Landlord, which area shall be no larger than a square
measuring ten (10) feet on each side. Tenant may use the roof for this purpose
no more than seven (7) times each calendar year for a period of no more than
five (5)
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days each time, unless otherwise approved by Landlord. Tenant shall notify
Landlord in writing no less than five (5) days before each use of the roof for
this purpose.
26. Xxxxxxx'x Building - Additional Office and Storage Facilities.
-------------------------------------------------------------
Landlord acknowledges that Tenant has additional office and storage facilities
on the second floor of the Xxxxxxx'x Building. Landlord hereby consents to two
openings in the wall between the Demised Premises and the Xxxxxxx'x Building to
connect these additional office and storage facilities to the Demised Premises.
The openings shall be on the second floor of the Demised Premises at a location
reasonably acceptable to Landlord. Landlord approves the location for the
opening either in the "green room" or in the internal stairway that connects the
first and second floors only of the Demised Premises. The openings shall not be
in either of the two Building stairways. The connection between the Demised
Premises and the Xxxxxxx'x Building permitted pursuant to the terms of this
Section 26 shall be used only by Tenant's employees and the nightclub musicians
and other performers. It shall not be used by patrons of the business except for
fire or other hazard exit if required by any applicable code. Tenant's right to
use these openings shall terminate on the earlier to occur of (a) the permanent
termination of the use of the Xxxxxxx'x Building as ancillary facilities or
(b) the termination of this Lease. Upon the termination of Tenant's right to use
these openings, Tenant shall close the openings in accordance with the
requirements described below in Section 27.
27. Xxxxxxx'x Building - Wall Openings. Other than the two openings
----------------------------------
for the additional office and storage facilities described above in Section 26,
the one opening for the electrical line described above in Section 20 and the
two openings to connect the kitchen facilities described above in Section 13,
Tenant shall not make any openings in the wall
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separating the Building and the Xxxxxxx'x Building without Landlord's prior
written consent, which consent shall not be unreasonably withheld. All openings
made by Tenant in the wall separating the Building and the Xxxxxxx'x Building
shall be equipped with doors required by applicable law. Upon the termination of
Tenant's right to use an opening in accordance with the terms of Sections 13, 20
or 26, Tenant, at its sole cost and expense, shall reinstall the brick infill,
provide appropriate safety and building code separations between the buildings
and perform all other work required by governmental authorities as a condition
to obtaining permits and other approvals for the elimination of the openings,
including work necessitated by building codes. The provisions of this Section 27
shall survive the termination of the Lease.
28. Parking Lot Access. The alley on the north side of the Building
------------------
adjoins the rear of a surface parking lot with an entrance on Iberville Street.
Landlord shall have the right to open and maintain a gate or some other similar
pedestrian access passageway in the fence separating the parking lot from the
alley. The location of the gate shall be subject to Tenant's approval, which
approval shall not be unreasonably withheld. Landlord and Landlord's other
tenants in the Building and their respective authorized guests shall have the
right to use the gate, without charge, for pedestrian access to and from the
Building and the parking lot. Tenant shall not block or unreasonably inhibit
this pedestrian access. Landlord, at its expense, shall install or institute
security devices or procedures to prevent unauthorized access from the parking
lot to the Demised Premises.
29. Trash Chute. The Approved Plans provide that the trash chute will
-----------
end on the second floor of the Demised Premises. This makes the trash room
inaccessible to Landlord. Consequently, Tenant has agreed to be responsible for
the removal of the trash for
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as long as the trash room remains inaccessible to Landlord. Accordingly, the
second paragraph in Section 8.5 of the Lease is hereby deleted and the following
is inserted in its place:
"Landlord and Landlord's other tenants in the remainder of the
Building shall have the right to use the trash chute described in
Exhibit C. Tenant, at Tenant's expense, shall be responsible for the
removal and disposal of the trash deposited in the trash chute,
including the trash from Landlord and Landlord's other tenants in the
remainder of the Building, as long as the termination of the trash
chute remains in the location depicted on the Approved Plans or in any
other location that is not reasonably accessible to Landlord. If the
termination of the trash chute is moved to a location that is
reasonably accessible to Landlord, the cost of trash removal shall be
shared by Landlord and Tenant in a fair and equitable manner to be
determined by Landlord and Tenant at that time. Furthermore, if the
trash compactor is owned by Tenant or an affiliate of Tenant, the
trash compactor shall become the property of Landlord at the
termination of the Lease without compensation to Tenant therefor."
30. Default. Section 14.1 of the Lease is hereby deleted and the
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following is inserted in its place:
"If Tenant fails to make a payment of fixed minimum rent, percentage
rent, tax contribution or insurance contribution (collectively, the
"Rent")under this Lease promptly when due, Tenant shall have ten (10)
working days after written notice of the default within which to cure
the default. If Tenant fails to perform or is otherwise in default
under any of the other terms, covenants or conditions of this Lease
other than payment of the Rent, Tenant shall have thirty (30) calendar
days after written notice to Tenant within which to cure the default
if the default can reasonably be cured within thirty (30) days
(without consideration of financial ability to cure the default). If a
default other than payment of the Rent cannot reasonably be cured
within thirty (30) days (without consideration of financial ability to
cure the default), Tenant shall begin to cure the default within the
thirty (30) day period and shall thereafter diligently and
continuously continue to prosecute the cure to completion as soon as
reasonably possible.
If Tenant fails to cure a default specified above within the cure
period specified above, Landlord may exercise one or more of the
rights and remedies specified in Section 14.3 hereof."
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31. Miscellaneous. Attached hereto are certified resolutions of Tenant
-------------
authorizing Xxxxx Xxxxxxx to enter into this Amendment on behalf of Tenant. The
parties hereby confirm and ratify the Lease, as amended by this Amendment.
Except as otherwise amended by this Amendment, the Lease shall remain in full
force and effect. Terms that are not otherwise defined in this Amendment shall
have the meaning ascribed to them in the Lease. References in this Amendment to
sections are meant to be sections of the Lease unless otherwise indicated in
this Amendment.
LANDLORD:
/s/ Xxxx X. Xxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxxxxx X. Xxxxxxxx
TENANT:
HOUSE OF BLUES NEW ORLEANS
RESTAURANT CORP
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx, President
FOR PURPOSES OF SECTION 7 OF THIS AMENDMENT ONLY
/s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, Individually
Attachments - Certified Resolutions of Tenant
Exhibits A-1 through A-2 - Releases
Exhibits B - Description of Approved Plans
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