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Exhibit 10.12
AMENDMENT TO SHOPPING CENTER LEASE
This Amendment, dated December 6, 1996, is to a certain Shopping Center
Lease made and entered into the 1st day of June, 1995, between Real Alchemy I,
L.P., as Landlord, and Midway Entertainment, Ltd., as Tenant and that certain
First Amendment to the Lease, dated February 20, 1996.
In consideration of the covenants and conditions contained in said
Lease and this Amendment, the parties hereto do hereby agrees as follows:
1. To the extent the terms and conditions contained in this
Amendment alter or conflict with those contained in said
Lease, those contained herein shall be absolutely controlling.
2. Basic Lease Information, Article I, shall be deleted and the
following substituted, "Permitted Use: Sports tavern,
restaurant, nightclub, billiards, and related activity,
including the sale of alcoholic beverages for on-site
consumption."
3. Article 2.1 shall be deleted and the following substituted,
"Tenant shall use and occupy the Premises solely for the
permitted use specified in the Basic Lease Information. Tenant
shall conduct its business activity in the Premises during all
business hours typical for Tenant's type of business, unless
Tenant is prevented from doing so by Applicable Laws (as
defined below) or by strike, fire or other casualty beyond
Tenant's control and except during reasonable periods approved
by Landlord in advance for repairing, cleaning and decorating
the Premises."
4. Article 5 shall be deleted and the following substituted,
"Tenant shall not make any exterior alterations or additions
without first obtaining the written consent of Landlord, which
consent shall not be unreasonably withheld. Landlord's consent
shall not be required for interior alterations if the cost of
such alterations is less than $15,000.00. Upon receipt of
Landlord's consent to alterations or additions to the Premises
by Tenant, Tenant shall procure, at Tenant's expense, all
necessary permits before undertaking such work. All such
alterations and additions shall be done in accordance with
applicable laws, including applicable building codes and
regulations."
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5. The third sentence in Article 6.4 shall be deleted and the
following substituted, "CAM charges will also include
management fees and expenses, not to exceed three percent
(3%), and all costs of maintenance and repairs concerning the
Shopping Center (to the extent not covered by insurance),
whether or not allocable to the Common Areas, but will not
include leasing commissions and any costs incurred by Landlord
to make space in the Shopping Center ready for another
particular tenant."
6. The last sentence in Article 9.1 shall be deleted and the
following substituted, "Tenant's share of such items for each
calendar year or partial calendar year will be determined by
Landlord by multiplying the total amount thereof by a
fraction, the numerator of which is the floor area of the
Premises and the denominator of which is the gross rentable
floor area of the buildings on the property covered by such
items during the applicable calendar year."
7. The last two sentences of Article 10.1 shall be deleted and
the following substituted, "Tenant shall, at its cost,
maintain insurance covering: (i) its personal property,
equipment and trade fixtures, including insurance providing
protection against fire and extended coverage perils,
sprinkler damage, vandalism and malicious mischief. Tenant
agrees to replace any plate glass on the Premises, however,
does not agree to provide insurance protection for such plate
glass. Such insurance will be in the amount of the full
replacement value of the insured property, and Tenant shall
furnish Landlord with a certificate evidencing such insurance
from the applicable insurer upon request.
8. The last sentence of Article 10.2 shall be deleted and the
following substituted, ""Tenant's share of such items for each
calendar year or partial calendar year will be determined by
Landlord by multiplying the total amount thereof by a
fraction, the numerator of which is the floor area of the
Premises and the denominator of which is the gross rentable
floor area of the buildings on the property covered by such
items during the applicable calendar year."
9. Article 13 shall be amended by adding the following sentence,
"Landlord's consent to any request for assignment shall not be
unreasonably withheld and in no event, shall its consent by
withheld for an assignment to an affiliated company,
partnership or entity of Tenant."
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10. Article 14.1(a) shall be deleted in its entirety and the
following substituted, "Tenant shall fail to pay any rental or
other sum of money when due hereunder and Tenant shall not
cure such failure within ten (10) days after notice thereof is
given by Landlord."
11. Article 14.5 shall be amended by adding the following
sentence, "Notwithstanding the foregoing, the prevailing party
will be entitled to "... attorneys' fees."
12. Article 15 shall be deleted in its entirety.
13. Article 17.2 shall be amended by adding the following
sentence, "In the event there is a mortgage, deed of trust or
similar debt agreement in which the Premises is security, in
whole or in part, the Landlord shall use its best efforts to
obtain a non-disturbance agreement in recordable form whereby
the secured party recognizes this Lease and Tenant's rights
hereunder in the event of any foreclosure and Tenant agrees to
attorn to such mortgagee in furtherance thereof."
14. Article 18(c) shall be deleted in its entirety.
15. Article 18(d) shall be deleted and the following substituted,
"to decorate and to make repairs, alterations, additions or
improvements (whether structural or otherwise) to and about
the Shopping Center and, for such purposes, to enter upon the
Premises, and to change the arrangement and location of the
parking areas, entrances, driveways and other Common Areas,
all without abatement of rent or impairing Tenant's
obligations so long as the Premises are reasonably accessible
and fit for the use expressly permitted in this Lease, and so
long as such change does not materially impair the visibility
of the Premises, access to or number of parking stalls
immediately surrounding the Premises; and"
16. Article 23.1 shall be amended to add the following, "All
notices to Tenant shall be sent to Tenant in care of Xxxxx
Wetting, 000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx 00000."
17. An Article shall be added to the Lease as follows, "Landlord
warrants that it will not lease or sell space in the shopping
center to a tenant with a similar, competing use. Such use
shall be as defined in the Basic Lease Information, Article
I."
18. Exhibit "A-1" shall be amended by attaching a legal
description of the Premises.
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19. Exhibit "E" shall be amended by adding the following
paragraph, "However, in no event, shall the rental rate
increase more than 12% over the rental rate in the prior five
year term."
20. The additional parking space referenced in the First Amendment
to the Lease shall be specifically set forth on the attached
Exhibit.
This Amendment may be executed in counterparts and any signature on a
copy of the Amendment sent by facsimile shall be binding upon transmission by
fax and the fax copy can be utilized for the purposes of this Amendment.
It is so agreed by and between the parties hereto effective this ____
day of __________________, 1996.
LANDLORD: /s/ Xxxxxxx X. Xxxxxxxx
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Real Alchemy I, L.P., a Texas Limited Partnership
by Xxxxxxx X. Xxxxxxxx, President
Energy Alchemy, Inc., General Partner
TENANT: /s/ Xxxx X. Xxxxxxxx
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Midway Entertainment, Ltd., a Texas Limited Partnership
by Xxxx X. Xxxxxxxx, Vice President
Fox & Hound II, Inc., General Partner
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