EXHIBIT 10.38
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement (the "Second Amendment") is
entered into effective as of January 20, 1994 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 effective October 14, 1992, and pertaining to a
portion of the property located at 000-000 Xxxxxxx Xxxxxx xx Xxx Xxxxxxx,
Xxxxxxxxx.
B. The Lease has been amended by that certain Amendment to Lease Agreement
(the "First Amendment") dated and effective as of December 20, 1993.
In consideration of the terms of this Second Amendment, Landlord and Tenant
do hereby further amend the Lease as follows:
AMENDMENT
1. Waiver by Landlord. Section 14 of the First Amendment obligates Tenant
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to obtain a division of the Xxxxxxx'x Lease into two leases. Tenant has made a
good faith effort to obtain the requested division, but the owners of the
Xxxxxxx'x Building have refused to grant it. Accordingly, Landlord hereby waives
the requirements of Section 14 of the First Amendment, and Section 14 is hereby
deleted.
2. Xxxxxxx'x Building - Option to Become Assignee. As a result of the
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waiver by Landlord of the requirements of Section 14 of the First Amendment,
Section 15 of the First Amendment is hereby amended in its entirety to read as
follows:
"Tenant does hereby irrevocably grant to Landlord the option to become the
assignee of the Xxxxxxx'x Lease. Landlord shall only have the right to
exercise this option upon the occurrence of one of the following events:
(a) termination of the 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. The
exercise notice must given no later than (i) if the Lease is terminated, 60
days after the termination of the Lease, or (ii) 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 Xxxxxxx'x Lease. This option shall survive the
termination of the Lease."
3. Xxxxxxx'x Building - HVAC Pad. As a result of the waiver by Landlord of
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the requirements of Section 14 of the First Amendment, Section 13 of the First
Amendment is hereby amended in its entirety to read as follows:
"Landlord and Tenant intend to 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.
The HVAC equipment for the Demised Premises ("Tenant's HVAC Equipment")
shall be located on the roof of the Xxxxxxx'x Building. Tenant shall be
obligated to maintain and repair Tenant's HVAC Equipment in accordance with
the maintenance and repair obligations of Section 9 of the Lease as if the
equipment were located on the Demised Premises.
Upon the earliest to occur of (a) the termination of the Lease, (b) the
termination of the Xxxxxxx'x Lease, or (c) the exercise of Landlord's
option under Section 15 of the First Amendment, as
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amended by this Second Amendment, to become the assignee of the Xxxxxxx'x
Lease, Tenant's HVAC Equipment shall without further action become the
property of Landlord without compensation to Tenant.
As a result of the location of Tenant's HVAC Equipment on the roof of the
Xxxxxxx'x Building, the Roof Pad will no longer be needed by Tenant.
Accordingly, the first sentence of Section 1.2 of the Lease is herby
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 as Exhibit B to the Lease, 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.
At no charge to Landlord, Landlord shall have the right to install and
maintain on the roof of the Xxxxxxx'x Building the HVAC equipment for the
remainder of the Building outside of the Demised Premises ("Landlord's HVAC
Equipment"). Tenant shall provide, or shall cause to be provided by the
owner of the Xxxxxxx'x Building (other than Landlord), these rights to
Landlord for the entire term of the 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.
If Tenant (or any other person or entity other than Landlord to which the
option to purchase the Xxxxxxx'x Building is assigned) becomes the owner of
the Xxxxxxx'x Building, Tenant shall grant, or shall cause to be granted,
to Landlord a lease of the roof of the Xxxxxxx'x Building (the "Xxxxxxx'x
Roof Lease"). The Xxxxxxx'x Roof Lease shall grant to Landlord the right to
install, maintain and repair Landlord's HVAC Equipment on the roof of the
Xxxxxxx'x Building. The Xxxxxxx'x Roof Lease shall be executed as soon as
possible after the acquisition of the Xxxxxxx'x Building by Tenant or an
affiliate of Tenant. The term of the Xxxxxxx'x
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Roof Lease shall begin if and only if the Lease terminates before the
expiration of its term. If the Lease continues until the expiration of its
term, the Xxxxxxx'x Roof Lease shall terminate without ever having begun.
If the Lease terminates before the expiration of its term, the term of the
Xxxxxxx'x Roof Lease shall begin on the date of the termination of the
Lease and shall continue until October 13, 2027 (the scheduled expiration
date). The rent shall be $500.00 per year beginning if and when the term of
the Xxxxxxx'x Roof Lease begins. The tenant under the Xxxxxxx'x Roof Lease
shall have the continuing option to terminate the Xxxxxxx'x Roof Lease by
forfeiting any prepaid rent. Furthermore, the tenant under the Xxxxxxx'x
Roof Lease shall not be responsible for any maintenance or repairs of the
Xxxxxxx'x Building (other than maintenance and repairs of Landlord's HVAC
Equipment) and shall not be responsible for any portion of the taxes,
insurance and maintenance of the land, buildings or any portion thereof."
4. Miscellaneous. The parties hereby confirm and ratify the Lease, as
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amended by the First Amendment and this Second Amendment. Except as otherwise
amended by the First Amendment and this Second Amendment, the Lease shall remain
in full force and effect. Terms that are not otherwise defined in this Second
Amendment shall have the meaning ascribed to them in the Lease and the First
Amendment.
WITNESSES: LANDLORD:
/s/ Xxxxx Field /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
[SIGNATURE ILLEGIBLE]
------------------------------ /s/ Xxxxxxxxxx X. Xxxxxxxx
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/s/ Xxxxx Field Xxxxxxxxxx X. Xxxxxxxx
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TENANT:
[SIGNATURE ILLEGIBLE] HOUSE OF BLUES NEW ORLEANS
------------------------------ RESTAURANT CORP.
[SIGNATURE ILLEGIBLE] By: /s/ Xxxxx Xxxxxxx, President
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Xxxxx Xxxxxxx, President
[SIGNATURE ILLEGIBLE]
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