EXHIBIT 10.10
FIRST ADDENDUM TO LEASE
(Peaches Music & Video Store No. 7)
AGREEMENT made and entered into this 30th day of September, 1998 by and
between XXXXX XXXX and SHEFFIELD XXXX, with an address at 0000 Xxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter collectively referred to
as "Landlord") and PEACHES ENTERTAINMENT CORPORATION, a Florida corporation
whose address is 0000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant are the landlord and tenant respectively under
a Lease Agreement dated March 21, 1978 (the "Lease") between Nehi Record
Distributing Corp. ("Nehi") as landlord, and Peaches Records and Tapes, Inc.
("PRT"), as tenant, with respect to the Peaches Music and Video store and
surrounding property at 0000 Xxxxxxx Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000
(the "Premises"), due to the assignment by PRT to Tenant of its interest as
tenant under an Assignment of Lease dated March 31, 1982, and the sale of the
Premises by Nehi to Landlord in or around 1983; and
WHEREAS, the third and final renewal term of the Lease is due to expire on
March 31, 2003; and
WHEREAS, Tenant desires to extend the current term of the Lease for an
additional five year period ending March 31, 2008, and to acquire the option of
extending the term of the Lease for up to two additional successive five-year
periods, and the parties agree to provide such extension and options to Tenant
on the terms and conditions described below;
IT IS, THEREFORE, AGREED:
1. Pursuant to Paragraphs 2 and 19 of the Lease (before the amendments set
forth below), the Lease will expire on March 31, 2003. The provisions of such
Paragraphs 2 and 19 of the Lease are hereby amended as follows: by amending
existing sub-paragraph 19.3 such that the Lease extension being effected
pursuant to such subparagraph shall be a period ten (10) years
commencing April 1, 1998 and ending March 31, 2008, at the rental rate set
forth elsewhere herein; and by adding the following two sub-paragraphs to such
Paragraph 19 (to follow immediately after existing sub-paragraph 19.3):
"19.4 Provided that Tenant shall then not be in default under this
Lease, the term shall be automatically extended for five (5) calendar
years next following the expiration of the third extended term hereof
(i.e. from April 1, 2008 to March 31, 2013); PROVIDED, however, that
the right and option is hereby granted to Tenant to cancel such
automatic extension by giving Landlord any form of written notice of
such extension cancellation at least one hundred eighty (180) days
prior to the expiration of the third such extended term. Any such
fourth extended term shall be upon all of the same terms and
conditions as apply under the Lease, as amended, except that regular
monthly rent during said fourth extended term, if any, shall be in
accordance with Paragraph 4.4 hereof.
19.5 Provided that Tenant shall then not be in default under this
Lease, the term shall be automatically extended for five (5) calendar
years next following the expiration of the fourth extended term hereof
(i.e. from April 1, 2013 to March 31, 2018); PROVIDED; however, that
the right and option is hereby granted to Tenant to cancel such
automatic extension by giving Landlord any form of written notice of
such extension cancellation at least one hundred eighty (180) days
prior to the expiration of the fourth such extended term. Any such
fifth extended term shall be upon all of the same terms and conditions
as apply under the Lease, as amended, except that regular monthly rent
during said fifth extended term, if any, shall be in accordance with
Paragraph 4.4 hereof."
2. The rental provisions of Paragraph 4 of the Lease are hereby amended by
adding the following sub-paragraph 4.4 to such Paragraph 4 (to follow
immediately after existing sub-paragraph 4.3):
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"4.4 Notwithstanding the foregoing or any other provision of this
Lease, the rent payable during the five-year period commencing April
1, 2003 and ending March 31, 2008 shall be $188,671.94 per annum
($15,722.66 per month), and the rent payable during the fourth and
fifth renewal terms, if any, shall be as follows:
(a) during the fourth renewal term, if any (April 1, 2008 to March
31, 2013), a regular rent of $213,281.33 per annum ($17,773.44
per month) during such term; and
(b) during the fifth renewal term, if any (April 1, 2013 to March 31,
2018), a regular rent of $237,890.71 per annum ($19,824.23 per
month) during such term.
3. Sub-paragraph 8.1 of the Lease is hereby amended, effective as of the
date of this Addendum, by deleting such existing sub-paragraph 8.1 and inserting
the following in its place:
"8.1 Notwithstanding any other provision of the Lease to the contrary,
Tenant shall, at its sole cost and expense, during the term and each
renewal term, expeditiously make all repairs and necessary
modifications to the Premises, whether structural or non-structural,
and whether or not required by applicable law, and maintain and keep
the Premises in good and clean condition, so that the Premises shall
be, at termination of the Lease, in such condition. Notwithstanding
the foregoing, in the event of any loss, destruction or other event
which is covered by any fire or other insurance which may be
maintained by Landlord, then Landlord shall be responsible for the
cost of any necessary repair up to the amount of the proceeds of such
insurance coverage, less any applicable deductible charged to Landlord
and the cost, if any, to Landlord in collecting such insurance
proceeds from the insurance carrier."
4. For the purpose of conforming the other provisions of the Lease with
the above-
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described amendment of sub-paragraph 8.1, sub-paragraph 5.1 is hereby amended,
effective as of the date of this Addendum, by deleting the word non-structural
from the fourth line of such sub-paragraph.
5. Paragraph 10 of the Lease is hereby amended, effective as of the date of
this Addendum, by deleting the existing Paragraph 10 and inserting the following
in its place:
"10. Fire Insurance; Destruction of Improvements
10.1 Tenant will, at its own expense, maintain in full force and
effect throughout the term and each renewal term fire insurance
policies covering all physical loss and with broad form coverage or
such other broader coverage as may from time to time be customary, on
all buildings and other improvements (excluding paving and
foundations) now or hereafter on the premises, issued by insurance
companies selected by Tenant and approved by Landlord, licensed to do
business by the State in which the premises is located, and naming
Tenant as the insured party, and Landlord as the additional insured,
Said policies shall bear loss payee endorsements in favor of the
holder of any mortgage or deed of trust permitted under this lease.
Such insurance shall be in a face amount of not less then ninety
percent (90%) of the full insurable value of all such improvements, or
the full replacement costs of said improvements, whichever is the
greater. Tenant will cause true copies of all such insurance policies
(or certificates thereof showing the premiums thereon to have been
paid) to be delivered to Landlord upon Landlord's written request
therefor. All such policies shall provide that they shall not be
cancelable by the insurers without said insurers first giving at least
ten (10) days' notice in writing to Tenant and Landlord.
10.2 Proceeds from said insurance policies shall be payable, first, to
the holder of any mortgage or deed of trust permitted under this Lease
to the extent required by said mortgage or deed of trust, and the
balance shall be payable to Tenant. However, the portion of said
proceeds received by Tenant shall be immediately impounded with the
disbursed directly by an
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independent depository acceptable to each party to pay, to the extent
such portion of proceeds may be sufficient, the costs of repairing and
restoring damaged buildings and other improvements. If, after such
payment of all of said costs, any balance of funds remains, the same
shall belong to Landlord absolutely.
10.3 No damage or destruction, by fire or other casualty, of any
building or other improvements now or hereafter on the premises shall
relieve Tenant of its obligations for rent and additional rent under
other provisions of this Lease, or of any of its obligations under
other provisions of this Lease (including without limitation Tenant's
and Landlord's respective obligations under the Article entitled
"Improvements, Repairs, Alterations, Restoration"), except that in the
event that the premises shall be damaged by fire, explosion or other
casualty or occurrence to the extent of twenty-five (25%) or more of
the insurable value of the premises during the final 180 days of any
renewal term and Tenant has served notice of its intention to
terminate the Lease as of the end of such renewal term, then Landlord
shall have the option, upon notice to Tenant, to obtain an assignment
of the relevant insurance proceeds in lieu of requiring Tenant to
repair and/or re-build in accordance with the other provisions of this
Lease.
10.4 In the event of any dispute between the parties regarding this
Article, the same shall be resolved by, and under the rules and
procedures of, the AMERICAN ARBITRATION ASSOCIATION, sitting in the
State of Florida.
6. Except as modified herein, all of the remaining provisions of the Lease
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written.
SIGNED, SEALED AND DELIVERED /s/ Xxxxx Xxxx
in the presence of ------------------------------------
Xxxxx Xxxx, as Landlord
/s/ Sheffield Xxxx
------------------------------ ------------------------------------
Sheffield Xxxx, as Landlord
PEACHES ENTERTAINMENT CORPORATION,
as Tenant
By: /s/ Xxxxx Xxxx
------------------------------ ------------------------------------
------------------------------ Title: Executive Vice-President
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