CASE NO. 04-15-00525-CV

IN THE

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

AMF BOWLING CENTERS, INC.

Appellant

RIO VENTURES, LTD., AND RIO CLUB, LLC,

Appellees

Appeal from Cause No. 2015cv03002

In the County Court at Law No. 10 Bexar County, Texas

Honorable Jason Wolff, Presiding

BRIEF FOR APPELLANT

WILSON, ELSER, MOSKOWITZ, EDELMAN &DICKER, LLP

Lee L. Cameron, Jr.

State Bar No. 03675380

lee. cameronjr@wilsonelser. com

Leonard E. Hoffman, III

State Bar No. 09789700

Leonard.Hoffman@wilsonelser. com

Krishna M. Oropeza

State Bar No. 24037353

901 Main Street, Suite 4800

Dallas, Texas 75202

214-698-8000

214-698-11 p 1 (fax)

ATTORNEYS FOR APPELLANT

ORAL ARGUMENT REQUESTED

2133188v.2

ACCEPTED

04-15-00525-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

12/2/2015 4:11:00 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 12/2/2015 4:11:00 PM KEITH E. HOTTLE Clerk
IDENTITY OF PARTIES AND COUNSEL

In accordance with Tex. R. App. P. 3 $.2(A)(1)(a), AMF Bowling Centers,

Inc. provides the following list of parties and counsel.

Par

Appellant:

AMF Bowling Centers, Inc.

Appellees•

Metropolis Nightclubs I, L.P.

Rio Ventures, Ltd.

Rio Club, LLC

Counsel:

Lee L. Cameron, Jr.

State Bar No. 03675380

lee.cameronjr@wilsonelser.com

Leonard E. Hoffman, III

State Bar No. 09789700

Leonard.Hoffman@wilsonelser. com

Kristina M. Oropeza

State Bar No. 24037353

Kristina.Oropeza@wilsonelser.com

901 Main Street, Suite 4800

Dallas, Texas 75202

214-698-8000

214-698-1101 (fax)

Dericic J. Rodgers

State Bar No. 24002857

Brandy Smith

State Bar No. 24057666

Davis, Cedillo &Mendoza, Inc.

755 E. Mulberry Ave., Suite 500

San Antonio, Texas 78212

(210) 822-6666

(210) 822-1151 (fax)

drodgers@lawdcm.com

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TABLE OF CONTENTS

STATEMENT OF THE CASE ............................................................................... 1

ISSUESPRESENTED ............................................................................................ 3

STATEMENT OF THE FACTS ............................................................................. 4

A. The Original AMF Sublease, the Metropolis

Sublease, and the Rio Ventures Sublease ................................................ 4

B. Proceedings in Harris County District Court ........................................... 5

C. Proceedings in Bexar County District Court .........................:................. 6

STANDARD OF REVIEW .................................................................................... 7

SL:11VIlVIARY OF THE ARGUMENT ..................................................................... 8

ARGUMENT AND AUTHORITIES ..................................................................... 9

I. APPELLEES HAVE NO RIGHT TO POSSESS THE

PREMISES BECAUSE THE PURPORTED LEASES ARE

INVALID AS A MATTER OF LAW .......................................................... 9

A. Assuming the Use of "Metropolis, Inc." was a Mere Misnomer,

the Contracts Are Not Legally Valid Because the Parties Signed

the Invalid Metropolis Lease Before Metropolis Nightclubs I,

L.P., Existed ....................................................... ...................................... 9

B. Appellees' Ratification Argument Fails as a Matter of Law ................. 14

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II. BECAUSE THE LEASES ARE INVALID AND POSSESSION OF

THE PREMISES SHOULD REVERT TO AMF, APPELLEES

HAVE NO RIGHT TO ATTORNEYS' FEES .......................................... 16

CONCLUSION ................................................................................................16

PRAYER ................................................................................................17

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INDEX OF AUTHORITIES

Cases

Camp Mystic, Inc. v. Eastland,

399 S.W.3d 266 (Tex. App.—San Antonio 2012, no pet.) ............................. 14

Coinmatch Copp. v. Aspenwood Apt. Co~^p.,

417 S.W.3d 909 (Tex. 2013) ........................................................................... 14

Commonwealth Nat'l Bank v. U.S.,

573 F. Supp. 881 (N.D. Tex. 1983) .................................................................. 14

Exxon CoNp. v. Emerald Oil &Gas Co.,

331 S.W.3d 419 (Tex. 2010) .............................................................................. 7

Flagship Hotel, Ltd. v. City of Galveston,

117 S.W.3d 552 (Tex. App.—Texarkana 2003, pet. denied) .......................... 15

HTS Se~vs., Inc. v. Hallwood Realty Pa~tne~s, L.P.,

190 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ............. 11, 12

In ~e Hawthorne Townhomes, L.P.,

282 S.W.3d 131 (Tex. App.—Dallas 2009, no pet.) ............................ 11, 12, 13

In ~e The Armand Borel Ti^ust,

Order No. 09-1129, 2012 WL 6215388 (Cal. Super. 2012) ............................ 14

Kahn v. Imperial Ai~po~t, L.P., 308 S.W.3d 432

(Tex. App.—Dallas 2010, no pet.) ................................................................... 11

Lesieu~^ v. Fi~ya~, 325 S.W.3d 242

(Tex. App.—San Antonio 2010, pet. denied) ................................................... 7

Loeffler v. Lyttle Indep. Sch. Dist., 211 S.W.3d 331

(Tex. App.—San Antonio 2006, pet. denied) ................................................. 10

v

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Payne v. Edmonson, No. O1-96-00792-CV, 1999 WL 350928, *3

(Tex. App.—Houston [lst Dist.] June 3, 1999, pet. denied) ........................... 11

Sun Ope~atin~- Ltd. P'ship v. Oatman,

911 S.W.2d 749 (Tex. App.—San Antonio 1995, writ denied) ...................... 15

Valence Operating Co. v..Do~sett, 164 S.W.3d 656 (Tex. 2005} ........................ $

Weste~nGeco, L.L.C. v. Input/Output, Inc.,

244 S.W.3d 776 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ........... 11, 12

Statutes

Tex. Prop. Code § 24.001 ................................................................................... 14

Rules

Tex. R. App. P. 3 8.2 ............................................................................................. ii

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BRIEF FOR APPELLANT

AMF Bowling Centers, Inc. files this Appellant's Brief and asks the Court to

reverse the judgment of the County Court, and render judgment and possession of

the Premises at issue for AMF Bowling Centers, Inc.

STATEMENT OF THE CASE

Appellant AlV~' Bowing Centers, Inc. ("ANTE'"), as landlord, filed an eviction

suit in the Justice of the Peace Court, Precinct 3, Place 3 ("J:P. Court") in Bexar'

County, Texas, for possession of real property occupied by Metropolis, Inc.,

Metropolis Nightclubs I, L.P., Rio Ventures, Ltd., and/or Rio Club, LLC. CR: 272-

280; App. A. In that eviction suit, AMF successfully argued that as a matter of law

leases fraudulently signed on behalf of Metropolis, Inc. did not give a separate and

distinct entity known as Metropolis Nightclubs I, L.P.—and, by extension, its subtenants Rio Ventures, Ltd. and Rio Club, LLC (the "Rio Defendants"}—the right to

possession of the premises at 13307-A San Pedro Avenue, San Antonio, Texas 78216

(the "Premises"), which 1~1V~' controls as landlord. CR: 14-20, 547; App. B.

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AMF''s position was further supported by an agreed judgment from the 190th

Judicial District Court in Harris County declaring that any lease purportedly made

on behalf of Metropolis, Inc. concerning the Premises was void ab initio. CR: 264-

268; App. C. In addition to the eviction suit and Harris County proceeding, AMF

filed a suit in Bexar County District Court requesting injunctive and declaratory relief

for various breaches of the lease and related monetary damages.

After the J.P. Court granted ANIF's Motion for Summary Disposition and

granted possession to AMF, the Rio Defendants appealed to Bexar County Court at

Law No. 10. They moved to abate the case because of the suit in Bexar County

District Court, and AMF moved to raise the appeal bond and assess occupancy fees.

CR: 529-533, 629-634.

The County Court denied both parties' motions regarding abatement and fees,

and then ordered that the Rio Defendants retain possession of the Premises even

though neither side had filed a motion or presented arguments on that topic. CR: 706,

708, 710. After AMF moved for reconsideration based on due process violations, the

County Court vacated the order of possession and heard arguments regarding crossmotions for summary judgment on the possession issue. CR: 734-740, 810-920, 921,

923-964. On August 13, 2015, the County Court granted Appellees' motion for

summary judgment, denied AMF''s motion for summary judgment, and issued an

order for possession in favor of the Rio Defendants despite established legal authority

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that the leases were invalid or void as a matter of law. CR: 1073, 1075; App. D and

E, respectively. This appeal followed. CR: 1076-077.

ISSUES PRESENTED

ISSUE NO. l: The undisputed facts established that Metropolis Nightclubs

I, LP did not exist when it allegedly entered into a lease with AMF for possession

of the Premises. Can a nonexistent entity enter into a valid contract as a matter of

law?

ISSUE NO. 2: Since the undisputed facts established that Metropolis

Nightclubs I, LP did not exist when it allegedly entered into a lease with AMF for

possession of the Premises, did the trial court err by granting summary judgment

and possession of the Premises to Appellees based on the terms of that invalid or

void contract?

ISSUE NO. 3: Since Appellees have no right to possession of the Premises

as a matter of law, did the County Court err in awarding attorneys' fees?

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STATEMENT OF FACTS

A. The Original AMF Sublease, the Metropolis

Sublease, and the Rio Ventures Sublease

There are three relevant lease documents in this case. First, AIV~ originally

subleased the Premises from F.W. Woolworth Co. (which assigned its interest to

Woolco, Inc.) in 1989 (the "Original Sublease"). CR: 22-46 (Lease between

Bitters/Woolco Partnership, LLP and AMF Bowling Centers, Inc.). This lease was

renewed and is effective through June 30, 2022. Id.

The second lease document, executed in 2005, specified the parties thereto

as AMF and an entity purporting to be "Metropolis, Inc." (the "Invalid Metropolis

Lease"). CR: 48-66; App. F. The Invalid Metropolis Lease concerned an attempted

lease of the Premises from AMF. Id. (Void Sublease between AMF Bowling

Centers, Inc. and Metropolis, Inc.). Gil Butnaru, who falsely claimed to represent

Metropolis, Inc., signed the Invalid Metropolis Lease agreement for the Premises.

CR: 62-63. In connection with that lease, Mr. Butnaru swore in an affidavit that he

was the president of Metropolis, Inc. and therefore had authority to enter into the

Lease. Id. The individuals who misrepresented themselves to be Metropolis, Inc.

agreed to use the Premises as a restaurant, bar, nightclub, or for any other lawful

purpose. CR: 49.

C!

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The third document was executed in 2007 between the party purporting to be

Metropolis, Inc. and Rio Ventures, Ltd. ("Rio Ventures"). CR: 73-78; App. G

(Void Sublease between Metropolis, Inc. and Rio Ventures, Ltd.). In that lease, a

different individual claiming to represent Metropolis, Inc., entered into a sublease for

the Premises with Rio Ventures, Ltd (the "Rio Sublease") so that Rio Ventures could

occupy the Premises. Id. Rio Ventures specifically agreed to comply with all the

provisions of the Invalid Metropolis Lease. CR: 74. This attempted lease term

extends to May 31, 2019. CR: 79-80. The Rio Sublease included a signature from

Samuel Panchevre who, like Mr. Butnaru, falsely represented that he was president

of Metropolis, Inc. and was authorized to enter into a lease agreement on its behalf.

CR: 78. The Rio Sublease is conditioned on the lawful existence of the Invalid

Metropolis Lease; if the Invalid Metropolis Lease terminates, then the Rio Sublease

also terminates. CR: 73 ¶ 2.

B. Proceedings in Harris County District Court

After repeated lease violations, AMF filed an action in Bexar County District

Court in 2014 for a declaration of its rights under the lease. Shortly thereafter, AMF

discovered for the first time that Metropolis, Inc. was not aware of the Invalid

Metropolis Lease or the Rio Sublease. The signatories to those leases, despite their

express representations to the contrary, were not affiliated with Metropolis, Inc., in

any way and never had any authority to bind that company. CR: 696-697. Bal

2133188v.2
Trivedi, who formed Metropolis, Inc., and has acted as a director or officer for the

corporation since its inception, had never heard of the Invalid Metropolis Lease or

the Rio Sublease until the litigation against the Rio Defendants began. Id.

Immediately after learning of Appellees' years of deceitful representations,

AMF filed a declaratory judgment action against Metropolis, Inc. in the 190th

Judicial Court for Harris County, Texas. CR: 264-268. That court entered an

Agreed Final Judgment on January 27, 2Q 15 that, among other things, declared the

Invalid Metropolis Lease void ab initio as between AMF end Metropolis, Inc. Id.;

App. C (Harris County District Court Judgment). Accordingly, the Agreed Final

Judgment fully and finally disposed of any and all claims to possession of the

Premises that Metropolis, Inc. (i.e., the only entity identified on the Invalid

Metropolis Lease as the tenant) may have to the Premises. Id.

C. Proceedings in Bexar County District Court

Their years of deceitful acts having been uncovered and learning of the

District Court's ruling in the Harris County case, Appellees concocted a misnomer

argument in an effort to have a court reform the Invalid Metropolis Lease to

conveniently remove the name Metropolis, Inc. and insert in its place the name

Metropolis Nightclubs I, L.P. In this regard, on July 9, 2015, the Bexar County

District Court also heard a Motion for Partial Summary Judgment against AlV~'.

See CR: 963-964. In that Motion, Metropolis Nightclubs I, L.P. argued that the

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District Court should reform the contracts under a theory of misnomer to reflect its

actual name. See id. AMF argued, among other things, that reformation would be

improper as a matter of law under the undisputed facts of the case. Nevertheless,

the District Court disagreed and ruled that Metropolis Nightclubs I, L.P. was the

correct name on the Invalid Metropolis Lease, Rio Sublease, and respective

extensions, and that the misnomer did not impact their validity or enforceability.

CR: 963-964; App. H. Notably, however, the District Court did not determine

what effect Metropolis Nightclubs I, L.P.'s non-existence as of the effective

date of the Invalid Metropolis Lease had on the legal validity of that lease. Id.

STANDARD OF REVIEW

Appellate courts review the granting of a summary judgment de novo.

Exxon Copp. v. Emerald Oil &Gas Co., 331 S.W.3d 419, 422 (Tex. 2010); LesieuN

v. F~ya~, 325 S.W.3d 242, 246 (Tex. App.—San Antonio 2010, pet. denied).

When parties file cross-motions for summary judgment, as in this case where one

of which was granted and the other denied, appellate courts review the summary

judgment evidence presented by both sides, determine all questions presented, and

if the reviewing court determines that the trial court erred, renders the judgment the

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trial court should have rendered. Valence Operating Co. v. Doi^sett, 164 S.W.3d

656, 661 (Tex. 2005).

Here, there are no disputed material facts and Appellees' legal theories are

meritless under Texas law. When the law is properly applied, Appellees cannot

recover possession of the Premises as a matter of law and possession should be

awarded to AMF. Accordingly, this Court should reverse the trial court's decision

to grant Appellees' summary judgment and attorneys' fees, and render judgment

and possession of the Premises to AMF.

SUlO~IMAR~ OF '~'HE ARGIJMEN'~

Under well established Texas law, anon-existent entity cannot enter into a

contract. The undisputed facts established that Metropolis Nightclubs I, LP. did

not exist when its representative allegedly signed the Invalid Metropolis Lease or

on the effective date of that contract. As a matter of law, therefore, that lease is

invalid or void. Since the Invalid Metropolis Lease was void or invalid as a matter

of law, Metropolis Nightclubs I, L.P. had no legal authority or rights to then

sublease the Premises to the Rio Defendants.

Additionally, invalid or void contracts, like the Invalid Metropolis Lease,

cannot be ratified as a matter of law; one cannot ratify or affirm something that does

2133188v.2
not exist. Moreover, the undisputed facts established that A1V~ never attempted to

ratify the Invalid Metropolis Lease because it tools steps immediately upon learning

of Appellees' deceitful misrepresentations to disavow the validity of that contract.

For these reasons, Appellees have no right to possess the Premises and are not

entitled to attorneys' fees. ANg' respectfully requests this Court reverse the

judgment of the County Court and render judgment and possession of the Premises

• ~ 1

ARGUMENT AND AUTHORITIES

I. APPELLEES HAVE NO RIGHT TO POSSESS THE

PREMISES BECAUSE THE PURPORTED LEASES

ARE INVALID AS A MATTER OF LAWI

A. Assuming the Use of "Metropolis, Inc." was a Mere Misnomer,

the Contracts Are Not Legally Valid Because the Parties Signed

the Invalid Metropolis Lease Before Metropolis Nightclubs I, L.P.

Existed

The undisputed facts established that: (1) on Appellants' motion the Bexar

County District Court issued an order in July 2015 reforming the Invalid

Metropolis Lease to insert the name Metropolis Nightclubs I, L.P, in place of

1 Germane to Issues Nos. 1 and 2.

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Metropolis, Inc.;2 and (2) neither Metropolis Nightclubs I, L.P., nor its general

partner Metropolis Nightclubs, Inc. existed when the Invalid Metropolis Lease

was signed and/or became effective. The Invalid Metropolis Lease was signed on

October 17, 2005 (CR: 63) and had an effective date of October 14, 2005 (CR: 49,

art. 3). CR: 48-66; App. F. But Metropolis Nightclubs I, L.P. and its general

partner, Metropolis Nightclubs, Inc. were not created until October 27, 2005. CR:

730-731; App. I. Indeed, Appellees' representative, Sam Panchevre, admitted in

the court below that Metropolis Nightclubs I, L.P. and its general partner,

Metropolis Nightclubs, Inc. were not created until October 27, 2005. CR: 847.

Under black letter, well established and unequivocal Texas law, a contrac4

entered into by a party who does not exist at the time is invalid or void. If a

party does not exist at the time of contracting, then there can be no "meeting of the

minds," and thus no contract. See Loeffler v. Lyttle Indep. Sch. Dist., 211 S.W.3d

331, 346 (Tex. App.—San Antonio 2006, pet. denied) (meeting of the minds

required to form a valid contract). A nonexistent entity cannot enter into a

2 The undisputed facts established that prior to this July 2015 court order, the

name Metropolis Nightclubs I, L.P. did not appear in any of the subject lease

documents. Even if the Bexar County District Court's misnomer order is ignored,

AMF still must prevail as a matter of law and be awarded possession of the

Premises because a Harris County District County entered a final judgment in

January 2015 that Metropolis, Inc. (the only party identified as the lessee on the

Invalid Metropolis Lease and all purported extensions) has no right to possession

of the Premises. CR: 264-268; App. C.

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contract as a matter of law. Weste~nGeco, L.L.C. v. Input/Output, Inc., 246

S.W.3d 776, 786 (Tex. App. Houston [14th Dist.] 2008, no pet.) ("[A]

nonexistent entity cannot enter into a contract."); In Ne Hawthorne Townhomes,

L.P., 282 S.W.3d 131, 138 (Tex. App. Dallas 2009, no pet.) ("If one of the

parties does not exist, no contract can be formed."); Kahn v. Impe~zal Ai~po~t, L.P.,

308 S.W.3d 432, 438 (Tex. App.—Dallas 2010, no pet.)(ruling that an individual

cannot sign on behalf of and bind a legal entity that does not exist); HTS Sews.,

Inc. v. Hallwood Realty Pa~tne~s, L.P., 190 S.W.3d 108, 114 (Tex. App.—Houston

[1st Dist.] 2005, no pet.) ("The Herman Group, L.P. did not exist at the time the

parties entered into the original contract; therefore, The Herman Group, L.P. was

not, and could not have been, a party to the original contract."); Payne v.

Edmonson, No. 01-96-00792-CV, 1999 WL 350928, *3 (Tex. App.—Houston [lst

Dist.] June 3, 1999, pet. denied) (there was no contract where one party to a

contract "did not exist until six years later").

In Weste~nGeco LLC, the court analyzed a contract between Input/Output

and Schlumberger to effect a settlement. 246 S.W.3d at 783-84, Under the

agreement, Input/Output agreed not to offer a job to any employee of

Schlumberger unless two years had elapsed since their employment. Id., at 778-79.

This provision purported to apply to future affiliates of Schlumberger as well. Id.,

at 786. The court concluded that Schlumberger could not bind affiliates that did not

11

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exist at the time of the contract as a matter of law: "[B]ecause anon-existent entity

cannot enter into a contract, Schlumberger could not and did not bind

WesternGeco merely by signing a contract in which Schlumberger states that it is

acting on behalf of itself and its future affiliates." Id. Thus, the terms of the

contract could not apply to a company that did not exist at the time the contract

was executed.

Similarly, in HTS Sews. the court analyzed whether a contract could be

enforced against an entity that was not yet formed when the contract was signed.

190 S.W.3d 108. In that case, a garnishee signed a consulting contract as "Sherri

Herman d/b/a The Herman Group." Id., at 113. The other party to the consulting

agreement was Hallwood Realty Partners, L.P. Id., at 110. A third party, HTS

Services, Inc. obtained a writ of garnishment for any funds that Hallwood Realty

Partners, L.P. owed to The Herman Group, L.P. Id. Because "The Herman Group,

L.P." did not exist at the time the consulting agreement was executed, the court

reasoned that it could not have been a party to the agreement and, therefore, could

not obtain any funds Hallwood owed to "Sherri Herman d/b/a The Herman

Group." Id., at 113 and 114. Thus, the consulting agreement could not be enforced

against The Herman Group, L.P. Id.

Likewise, the court in Hawthorne Townhomes reinforces this approach. 282

S.W. 131. The Hawthorne Townhomes court emphasized when a party to the

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contract does not exist, there can be no meeting of the minds and, thus, a valid

contract cannot be formed:

The formation of a contract requires a meeting of the minds on the

contract's essential terms. If one of the parties does not exist, no

contract can be formed.

Id., at 13 8 (citations omitted).

As noted above, the Bexar County District Court ruled in July 2015 that the

leases should be reformed. by substituting the name Metropolis Nightclubs I, L.P.

for Metropolis, Inc. into the disputed leases. However, the undisputed facts

established that neither Metropolis Nightclubs I, L.P., nor its general partner

Metropolis Nightclub, Inc., existed when the Invalid Metropolis Lease purportedly

became effective on October 14, 2005 or when it was signed on October 17, 2005.

Thus, under established Texas law the Invalid Metropolis Lease must be held to be

invalid or void as a matter of law.

In stark contrast, here is a list of the cases that support Appellees' argument

that a nonexistent entity can enter into a legally valid contract: None!

Since the Invalid Metropolis Lease is void or invalid as a matter of law, the

Rio Sublease—which is dependent on the validity of the Invalid Metropolis

Lease—is also invalid or void as a matter of law. Accordingly, Appellees have no

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rights to possession of the Premises.3 The County Court erred in holding otherwise.

Therefore, the judgment of the County Court should be reversed and judgment for

possession should be rendered in favor of AMF.

B. Appellees' Ratification Argument Fails as a Matter of Law

In their motion for summary judgment in the court below Appellees argued

that AMF ratified the Invalid Metropolis Lease by agreeing to extend it. Appellees

are wrong as a matter of law for two independent reasons.

First, if a contract is invalid or void, it has no effect and is a nullity.

Commonwealth Nat'l Bank v. U.S., 573 F. Supp. 881, 884 (N.D. Tex. 1983). An

invalid or void contract cannot be ratified; attempts to incorporate an invalid or

void contract have no legal effect. See In ~e The Armand Bo~el Trust, Order No.

09-1129, 2012 WL 6215388 (Cal. Super. 2012). Moreover, subsequent

amendments or extensions cannot relate back to an invalid or void lease. See, e.g.,

3 To prevail in an eviction case, a tenant must show that it has a superior right to

actual possession of the relevant premises. See Tex. Prop. Code § 24.001. A valid

lease is required to transfer the right of possession of the leased premises from

landlord to tenant. See, e.g., Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 276

(Tex. App.—San Antonio 2012, no pet.). But the lease must be a valid contract to

transfer the legal right to possess. See Coinmatch Copp. v. Aspenwood Apt. Copp.,

417 S.W.3d 909, 920 (Tex. 2013) (eviction is permissible when the tenant has no

legal possessory interests). Since the Invalid Metropolis Lease was not a valid

contract, the legal right of possession never transferred to Appellees.

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Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 560 (Tex. App.—

Texarkana 2003, pet. denied).

Second, the undisputed facts establish that AMF never attempted to ratify or

recognize the Invalid Metropolis Lease. To ratify an otherwise voidable contract a

party must, by conduct, recognize the contract after acquiring knowledge of all

relevant facts which entitled them to rescind. Sun Operating Ltd. P'ship v.

Oatman, 911 S.W.2d 749, 756 (Tex. App.—San Antonio 1995, writ denied).

Here, AMF immediately sought a declaration of its rights under the relevant

leases upon learning Metropolis Nightclubs I, L.P., had misrepresented its

corporate identity and status. When AMF learned of the facts entitling it to rescind

the contract, it took affirmative steps to disavow the validity of the contract.

Immediately after learning of Appellees' years of deceitful representations, AMF

filed a declaratory judgment action against Metropolis, Inc. in the 190th Judicial

Court for Harris County, Texas. That court entered an Agreed Final Judgment on

January 27, 2015 that, among other things, declared the Invalid Metropolis Lease

void ab initio as between AMF and Metropolis, Inc. CR: 264-268. The Bexar

County District court did not reform the subject leases to replace Metropolis, Inc.

with Metropolis Nightclubs I, L.P. until over six months later. CR: 963-964. Thus,

the undisputed facts establish that AMF did not act in anyway to recognize the

contract, which in turn defeats Appellees' ratification argument as a matter of law.

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As such, the Invalid Metropolis Lease should be deemed void. See Oatman, 911

S.W.2d at 756. And since the Invalid Metropolis Lease is void, Metropolis

Nightclubs I, L.P., cannot incorporate its terms into subsequent subleases or

extensions. Thus, there is no legally valid lease, sublease, or extension granting

Metropolis Nightclubs I, L.P., the right to possess the Premises.

II. BECAUSE THE LEASES ARE INVALID AND POSSESSION OF

THE PREMISES SHOULD REVERT TO AMF, APPELLEES

HAVE NO RIGHT TO ATTORNEYS' FEES4

In addition to awarding Appellees possession, the County Court also

awarded attorneys' fees in their favor. AMF incorporates all the arguments

previously addressed and asks this Court to reverse the award of attorneys' fees

because neither Metropolis Nightclubs I, LP nor the Rio Defendants have a legal

right to possess the Premises.

CONCLUSION

The undisputed facts established that Appellees have no lawful right to

possession of the Premises. The 190th Judicial District Court in Harris County has

entered judgment that the only named tenant to the Invalid Metropolis Lease,

Metropolis, Inc., has no legal rights to the Premises. Following that judgment,

4 Germane to Issue No. 3.

2133188v.2
Appellees concocted a misnomer argument and convinced the 408th Judicial Court in

Bexar County to replace the name Metropolis, Inc. with Metropolis Nightclubs I,

L.P. in the Invalid Metropolis Lease. However, neither Metropolis Nightclubs I, L.P.

nor its general partner existed when that lease was signed or on the effective date of

that lease. Under established Texas law, therefore, the Invalid Metropolis Lease is

invalid—a nonexistent entity cannot enter into a legally binding contract. As a result,

neither Metropolis Nightclubs I, L.P. nor its sublessees, the Rio Defendants, have

any rights to possession of the Premises.

For these reasons, and as explained in greater detail above, the County Court

erred in granting summary judgment and possession for Appellees and by denying

possession of the Premises to A1V~'.

'►: ►_

~1V~' respectfully requests this Court to reverse the judgment of the county

court granting possession of the Premises and attorneys' fees in favor of Appellees

and render judgment and possession of the Premises in favor of AMF along with

attorneys' fees.

17

2133188v.2
Respectfully Submitted,

WILSON, ELSER, MOSKOWITZ,

ED~I.lO~Al~ ~ DICI~~:, I,]LP

lsl Lee L. Cameron J~.

Lee L. Cameron, Jr.

State Bar No. 03675380

lee. cameronj r@wilsonelser. com

Leonard E. Hoffman, III

State Bar No. 09789700

Leonard.Hoffinan@wilsonelser. com

Kristina M. Oropeza

State Bar No. 24037353

Bank of America Plaza

901 Main Street, Suite 4800

Dallas, Texas 75202

(214) 698-8000

(214) 698-11 O 1 (facsi~eile)

ATTORNEYS FOR APPELLANT

AMF BOWLING CENTERS, INC.

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of December, 2015, a true and correct

copy of Appellant's Brief was forwarded to Appellees' Counsel of record.

is/Lee L. Cameron J~.

Lee L. Cameron, Jr.

18

2133188v.2
CASE NO. 04-15-00525-CV

~llT 'I'H~

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

AIV~' BOWLING CENTERS, INC.

Appellant

v.

RIO VENTURES, LTD., AND RIO CLUB, LLC,

Appellees

Appeal from Cause Nn. 2015cv03002

In the County Court at Law No. 10 Bexar County, Texas

Honorable Jason Wolff, Presiding

APPENDIX TO BRIEF FOR APPELLANT

Tab A AMF's Eviction Petition filed in the J.P. Court Case

Tab B Order Granting AMF's Motion for Summary Disposition in the J.P.

Court Case

Tab C Agreed Final Judgment Entered by the 190th Judicial Court, Harris

County, Texas

Tab D Order Granting Appellees' Motion for Summary Disposition in the

County Court at Law Case

Tab E Order Granting Possession of the Premises to Appellees in the County

Court at Law Case

2152699v.1
Tab F The Invalid Metropolis Lease

Tab G The Rio Sublease

Tab I-~ Partial Summary Judgment Order from the 408th Judicial Court, Bexar

County, Texas

Tab I Secretary of State Documents regarding formation of Metropolis

Nightclubs I, L.P. and Metropolis Nightclubs, Inc.

2152699v.1
APPENDI~~ A
~,,

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1~~~~t~~c~r~. ~~c~zaN c~.s~

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~A.~E 1'~4. ~cuurt use n~ijrj 7l~ ` `~ .TC)S'1'TC~ Gt3FJitT,1'CT:~ '" B~XA4R ~E3UNTY, '1~~X.~ S 4E ~ '

~..~,

;..,~

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PLA~h~`I~`: AMF ~c~wln~ Cer~tersx .Inc. • Q~ijit suit for ~t~rrt Rentai Subsi~i5t (if ar3y)- h,~,

'V~. 'T'enant's l'nrtiar~ ~

TOTAL M~?NT~3LY RENT $

~E~'ENUATtT s R~u'~ent~tres Ltd. aid ~tio CI T~~ LI~C -

Cf.~il~LATI'd'~`: Plainti~f{Landlord~ hereby ec~~plains of the defendant(s3 Warned above fax evzcti4n ~#'plaznt ff s prei s {ii~clud~ g

star~rocrms .and parking areas] located in the abr~ve precarict; .~dciress ofth~ propsrt~+ is; ~. ,. ,W..,,_ _,.,~.,,... ~

i3~fI7 fan Pedro Ave niteA ~an Antonin ~ `~' ~~8z ~ ~ ,~ ~ ..

AI3AR~SS t7itiTT~k. CITY STATE ZI!' ~ ~ d"'`,,s

1. SER'~ICE C?F CITA.TIC~~T: Service .is requested nn defend~~ts by p~zsaz~al service at home or ~vc~r~ ar bx alt~~ative ~ez~?3e~as~

aIlov~ed by tlac T~xa~ Justice Gourt l~n~es ofCourt. Glther addresses where the def~nrlant(s} may be served are: ~ ~'

• Saint~el PancI~e}rre;on liehal~ofItiit Ventures, Ltd anc~ Rid ~Iub, :LLC, i.,~ Berri e KiIIs; San ~ntanio; '~'ex 7~2~ r ~~ t

Jflhn"VV.'V~'nod, as registered agent for service far:Rio Ventures;Ltd.and.Rio Clutr, LLC, 4~~II ~Voad~~ay E)~Na, ~u}t~'I-1-'I0,

HQc~stona Texas ?'7Q~6 ~ ''r

• Rio Yenfures, L~c~., `14OG Peacaci: Haven,. San .Antonia, 'T~xas 7~25b

~.~ T3efen~ant(s~ failed to pay rentfor the follnivin~ tiFire gerioii(s):

='

T'C#TAL I~~I.,INQT_TT~NT REST AS {3~ T,3E~'I`E Q~ ~~..~~G IS: ,

I'laint'sff reserves.tI~~ ri~~t tg or~tty x~nen€i the axnuunt at triat fo inciurle rc~~t day from tf~c dafe cif Mina ~hrau~h .the riate n~trinl.

~:X~:c~~r~~ cRo~t~s ~~x ~v~tc~e~c~r~~~~s~ v~oi~~~rxar~s.

I.e~se Violation cif ether than non-paid rent— list lease violations} See attached Grounds .fnr v?etzr~rc

4:[ Ht3L~UV'E~2 AS GRf:)TI~DS I~`~~. E'CTIf3N:

p~fendarit(s} are iinlat~ft~i1~F holding o~fet~ since tIaey failed to ~seate at:tlie end oftlie rental .term ar renewat of extension period, ~~rh ch u~as

5.:~ NQ'I`~CE TO '~'ACA.T~: Plaintiff has given defendanY~s} a ivriiten notiea to vaaaf~ (according_ ica Ghaptsr ~4.Uf#S of the Texas ~"ropart~ Code) and

demand far possession,

Such ~~tice teas delivered tin ~Vtarch, 3~#;~t?~ S and delivered by this method: fax, CMR~tl2.,.hand-d~Iixery (pflsting.on dnor~

6.~ATTL~I~2V'EY''S FE~~~

PI.AINTIF~Q is seeking applicable attorney`s fees: Attorney's: name, address, and phone & numbers tee:

Lei I~. ~ameron,:lr., ~sq.; W~Ison nisei' NEosl:owitz Edelman 8c 3~tcker LLP, 901 ~t~fain

~tr~ct~ Sukt~ 48pfl, l3ailas, 'T.752f?2; ~I4.6~8.~~Q~l (o#~iee} ~ I4.t~8_T l t~l {fax.)

7.~[ 33~i'~iD ~"CtR ~Q~ ~:fiS~~N: If Plaintiff has ~Sieti a band. for ~tossession, Plaintii~ regqCsts ~l.} ihst the am4tsnt of plaintiffs bond and defendant's counter

band ba sot; ~~} that plaintiffs band tie approved Iiy t3ie Caui~ ~atd ~3) that proper'niztices:as required by the T~xac Justice Couit Rules ire given to 17efentlaiit(s~.

REQLT,EST' I'{?R ~UDG~'I~I~T: PlainGi"i prav~ fhaY def~ndan~(s) be ~,:rved wif~i oiYatzan and fhat:gtaintiff have;jud=~nes~t.against:def'endanT{s}:f~c_ pa~sscssicsn of

p~eFnises, including iarrioval of defendants ansl ~ief~ndanl~' possessiosis f`rrsm it~e premises, unpaid lent TF set ~4rth above, attarriey's fees, canr~ costs, arsd 9nietesi on fhe:

above sums at the raie.sYt~Yesi in flee rental confiaci, or rf not sa st~ifed, ai the.statutary rats far jiidamcnts rz»der Ci~z( Sfatutes Article 5069-1 ~DS:

~Tf you ~u~ish to ~ivs ~~sur consent for the ans~vei~ and any other ina~ians ter pleadings Ya die sent to your email adtir~ss> please click

~tl$ ~3Ct7C~ F'i11G~. ~7I'{?1x2f~~ ~'£111~' VY4Lfi~ P,ST11Il Qi1L~T~S$: IL'~.CfitTi~2'QII4Q'.Vt'IASQ3IP,45Pi~.C{12i'f - ~~'' t

A.N1F ~4~vTin~ cet~#ers; inc. `,_..'~.__~'`"~ r

Petitioner's Pr~nfiec~ i~a~a. `"~ Signa~i"ar~ ofPiain~iff or

}~EFENI3R2+,T(S} INFC3ItIuff~1`IQ2`1(if knat~x~}: ~,~

BATE {3~' ~IFtTTi: n/8 ,f~c~.CiT'.BSS of P13771ti~'S ,E~itQI'IIe}'

LAST 3 NUI+2£iERS C7F T7RTTVER LT~EIvS~ n/a 9.q2 Main Sired, Spite 4 00

LA~'T"3I~~i,~MBERS.C'F St3CIAI.. SEGURTTY: ztla Deltas, Texas 7~2p2

~~~~r~~~::~~rs ~c~~~ r~u~~s~~: ~l.t~.8?~.~666 (Counsel for ~e£e~dants} rxa~~ ~F rz.:~~rrr~~fis ~~rrc~~t, ~~~r~~.~~FF; ~ta:~~s.soat~

~ S~~orn xcya~d subscr t~~ b~fo~~ n~e~us 13~" day bfl~~rch, ~OiS

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~[,1~TICE C~T,~I~T ~fl~., CASE T~t~~~AT~N S~E~T ~1~3

'yY~yp ;fP

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et.

~ n ;. '~ .

~a~se Nutbe~r ~f~r cleark use.. €~~1~}.. ~,~ ~ ~, i ~ ~ ~ ~ ' ~

Sfyi~d A'YT~ B~~lz`ng ~e~t~rs, Luc. v. ~.i~a ~e~€~ur~~, Ltd., and R.io ~ ~, LLC

{e.g., ~o~in S~~t~ ~.. AIi Amerrcan insurance eo; In. re A~~ry Arin Janes; In the Matter ref the stale of George Jackson.).

A ci°~y l o~se nforn3aticrn sheet must be co~ipleted and submitfie~i «hen an ari~inal p~tition,is.falcd to initiate s nec~~ suit 'The ini'nrma~ian should be tie

ta~st available at #bs dine of Ming: This sl~e~t, r~quir~d by Rule pf i~~zl Prs~cedur~ 5112, is intended to collect inf€~rmari~n that ~~siIl be useii for

statistical purpas~s ~nlv ~t neither r~ptaces n€xx suppl~men~s t1~e ~1in~s ar s~ry ~~ of pleading ar otk~er cl~curnants as required by la~v or rule. The

sleet does not cc«nstituta a discovery request, response, nr supplementation, aid it is not ad~xiissible at t~tat

~. ~an~ac~ information fc~r person ~~an~ efi~t ~as~ 2.1\~a es ~f p~rtzes iin. case:.

xnformat~~n sheet:

~~me: Telephone: Pla:~ntiif'(s}:

T:,ee L. Ca~nerc~r~, Jr. 214.98.&~t~~ AMF Bc~uziiz~g C~nte~rsx ~~.

.1~.ddress: rte:

901 Ivlain tree, ~~i~e 48t}0 214.b98.1 J,(~.l

I)e~'ezid.ant(sj:

Cif/St~tel~zp: Stake Baz No: Rice V~niuz~es, Ltd,.

~?all~l'I~1752t?4 0367~38~ Rio Club, Z,L

~~il:

ee:Gamerc~n ez jwilso~~iser.c~zn

~i~a

[A.ttaah additia~ral pale as necessary to list atI. ties]

~. Ia~dzea~e +~as~ ape, ter is e~atify ~ ~rn~st i or~aa~t issus:.i tie case select auly: i}:

.X~ebt ~~`1ri~rr: A debi. Maim. case is a lavrsuit brow to. ~ ,~t~~c~ivn A.n eviction ease is a Ia~~rs~'~. brae ht to

recover a debt. by an assignee ~f a cIaisn; a debt co~Iectgr oz reeaver possession of real praper~y;afte~i by a Iandlcird

ctill~ction agency, a ~xnancial institution, or a person or end fiy ~~ainst a tenant, 1~. claim for rent may be ~c~ii3ed with an

prima~il~ ~ng~~eii.in the. business. ~f ]ending rnr~ney at interest: eviction case if the' arnacu~# cif. rent iiu~ and unpaid is n~~

The c~a%~i, can b~ for na Qre than ~I t1=~~0, excluding statutory.. more fihan ~I ~;Q€~p, ~xeluding st~tu~ary. interest .and court .

interest az~d court oasts iiut i~clud n at~or~n~y fags, if ~n . ~gscs but inctudin at#cirn~ fees, if any.

Repuzr arsi~ ~e»tidy. A zepair and_ reri~~dy case is a lawsuit ~ S~rrrrl~ ~`laims: A sm~Il claims case is a Iat~isuit bro~~lit

filed b~ a residential tensor under. Ghagter 9'~;Subch.agter B of for ~h~. recav~ry ~f mangy d~ a;es, civil penalties,

the 'T'exas Pro~erry Cade to enforce ate .Iandlord's ciutj~ to persn~ai property, or otter re2ie~' alIa~~ed b~y law. `I'Y~e

repair or remedy a coed can ~naTerially affecting the `physical clainm Harz be for na n~or~ ~~n ~I fl,Ot3Q, ~~~lud~n~

hcalt . o~'s~~~iy of an ardznary tenant. The reii~~'sougizt can be statutory irifi~rest ant]. court pasts but including .at~orne},

for na rrmc~re than ~1~},(3t1(1;~xcluciii~g statutory interest anti fees, `any.

court costs but includitz ~t~orn~~ fees, if and'• _____ _____....---...

19119i3u.i

273
_..

Instructions: The 8er+tice members Ci:~=iI Rei e#`,Act a~pi es tv a ci~ti] proceeding in.the :Tustice Gt~urts. l3efare entering a defauT~~vdgment against an

individual deferzc3ant, i~c plaintiff mast. file ~~ith the ct~tu~c an davit statizi~ uthetli~r or not the defendant is s~ the u~~itat~ t`~ervice, s~nx ~~r

necessary fa~fis to supp~art, the affzc~avit, car stat'in~ that tie g~~intiff is unabi~ to determine a=hett~er or not the defen.ci~~rs n I~t~ry service i~ that is

the c~sa. The requirement far an affidavit rizay b~ satrsfied h~ a, wriitez~, si.~ned dcacumcr t ~eclased to I?e true under p`~ a~C~r` b~'~srjury. Tf' it~~ppear's

ghat the de£end~ntis ire militar,~~ service, tine eaur~ ma} nai enter a judgment until after ~I~e cc~~rt ~ppai zts an uttomey is regresent't~ie:d~f~ndar~t, Iffhe

ci~u~t. is unable to deterrn~ne ifthe defendant is in military:s~nFi~e the court may:r~quire pia ntii~to.fl.e a bond in an amouni.appraved by the c~u .

A person who tnak~s or uses an .affidavit under this Acf.knowzng it tc~ be fatse, nay be fined or imprisoned crr both: 5{~ .U,S.C: rlp~: ~(} t ei sect. Ttr

obtain cerfifscafes of service: or ~i~n-sen~ice under the Service membexs` C vzl Relief Act, you mad access the pz~biic ~i?ebsite:

hops:11EnvzuF.c~zn~lc.ns€ .rnillaPP.?lscra(sGraHame,do.1'h s cuehsit~ ~~Il provide the current actz~~e miiifary.status:ofan ztrl victual.

~I~7I~R1~ ~`$~~I2S ~:~I~&'4'1[~

case No. `: ~~ ~,~

tk,I`4`I~ Bfl~vting renters, Inc,

Plaintiff

vs,

Rio Ve~►tures, Ltd., .itr Club, LLC

I3~fenrl~

BEFOKE NLE, 4n ~Izi~ day psrse~nally appeared Lee. L. ~~stert~z~, :Tr,,

~~I~o, uzid.~r penalty afperjur}; sated that the fs~Ilo~rin~ facts are true:

~ In ire Just ~e Go~rt of

§ I3exar County,. Texas

§.

~Pi'8G2TIGf+ ~ j jPI~GE

1 am the [~ ~I~ii~ti~ ~ aft~rrxey t~frect~rd. ~'ar #~.e P~aintif~in this proceeding.

Rio Ventures,_ I~td. and Rica Club, I.I,C, I7efendar~ts, ate nat in military service.

~ , Def~nda~nt, ~s in military service..

13c a~~ this because ~e~endants are ri~a ~orpc~rate entiiies.'T'hey cannot ge e in the iX wry.

I anz unable to determine ~~~~~~i~r or not ~e I"3t~f~ndant is in military senfic,~--.~ .~ . .

Si~n~d on ,~ ~~ ~~.~ 1

~J,,.----.==f-`r ~„ ~,-~~''~--~. ? t

Siatur€. r

1'rir~ted I~T~~~: L~~ ~.,: ~atn~r~on;.Jr,

A~idr~ss: 9~I Main Street, Suite 4.8£~~.

T7alias, Texas'lS'~t~4.

~'elephone: ~14.69S;8flt~0

Fax; 2i~.~i9~.11`tli

Mail Ad~Ir~ss: #e~.ca~z7~ronwilsonelser.eaz~i

THE ST.A'I`~.:0 T~1~ ~

spa - ma :~rt~ ~u~sc~us~r~ ~ ~o n~r~ ~~ ~ :~ `~ c~'~ ~ , ~-~ f , .

Clerk c~ft :~ court

'H ~— ... 

iJ~U~Vyi~ Ee.GRs4~i7~.

~W~~~~~yp ~

~R

39:~ 1.913v.1

3~{?TARY PL7BT.IC, fate of Texas

274
a

i ~ ~

PROPERTY BACKGROUND

/"1

Plaintiff AMF Bowling Centers, rnc. ("AMF") is the landlord of a retail strip center

loca+..ed a# 133 J7 San Peda~o Av~nus, Sin Antonio, 'Texas 78215 (the "P~eaa~ises"). 'The 'remises

consists of a one story building containing approarimately 79,902 square feet of ground floor

space and a me~~~e area to the rear containing approximately 10,222 square feet. AMF

occupies a portion of the Premises, operating afamily-friendly, upscale bowling and family

entertainment facility. AMF leases the remaining portions of the property to a variety of

reputable tenants, including a beauty salon {Salon Beatriz), a bowling pro shop (The Strike Zone

Pro Shop), an auto repair facility {short's Gazage), and a bingo hall (Jackpot Bingo Parlor).

Defendants currently occupy a portion of the Premises.

Defendants utilize their portion of the Premises for a night club called Club Rio, which

they own and/or operate. Club Rio and AMF's bowling center are adjacent to one another and

shaze a wall which divides the businesses. Recently, AMF discovered that Defendants divided

the space for Club Rio into two distinct and wholly separate clubs--Club Rio and Maroc Bar—

without the consent of AMF. Mazoc Bar is an outdoor nightclub with a su~imm;ng pool in the

middle of the space.

THE ALLEGED LANDLORD TENANT RELATIONSHIPS

A. Original Sublease

On October 1, 19$9, Plaintiff AMF entered into a sublease agreement with F. W.

Woolworth Co. (the "Original Sublease") to sublet the Premises. Bitters/Woolco Partnership,

LLP owns fee simple title to the Premises and obtained F. W. Woolworth Co.'s interest in the

Original Sublease (through its successor-in-interest, Woolco, Tnc.) by an assignment dated

February 19, 20p4.

The Original Sublease was scheduled to expire on June 30, 2014. Accordingly,

BitterslWoolCo Partnership, LLP and Plaintiff entered into a new lease for the Premises effective

July 1, 2412, set to expire on June 30, 2022 (the "Bowling Center Lease," attached and

incorporated herein as Exhibit 1).1

Per the tenors of the Bowling Center Lease, AMF covenanted to the following, among

other things:

~ Use the Premises for lawful purposes only;

• Not bring or permit any obscene or pornographic material an the Premises,

and to not conduct any obscane, nude, or semi-nude live performances on the

Premises; and

~;' 1 The Par-ties amended the Bowling Center Lease extending the terms for one year without materially altering the

°~ terms of the Howling Center Lease.

GROUNDS FOR EVICTION —PAGE 1 O~ 6

1911924v.1 

275
3

. ~ 

~"~

~"1

Not allow subtenants to bring ar permit any obscene ar pornographic material

on the Premises, and to not conduct any obscene, nude, or semi-nude live

performances on the Premises.

B. The Void Sublease between AMF and the Alleged Metropolis, Inc.

On October 14, 2005, Plaintiff entered into athree-year sublease agreement with who

Plaintiff thought was "Metropolis, Inc, or assigns d/b/a Metropolis" (collectively, "Metropolis")

for a portion of the Premises (the "Metropolis Sublease" attached and incorporated herein as

Exhibit 2)? Specifically, the Metropolis Sublease provided for the lease of the premises known

as 13307-A San Pedro Avenue, San Antonio, Texas 78216, consisting of a one story building

containing approximately 13,440 square feet of space and outside fenced azea containing

approximately 8,200 square feet (described. here as the "Club Rio Premises").

The individuals who represented themselves to be Metropolis, Imc. promised to use the

Club Rio Premises "as a Restaurant, Bar or Nightclub, or for any other lawful purpose approved

by [AMF Bowling Centers, Inc.J in writing." Ex. 2, art. 3. Furthermore, the individuals who

represented themselves to be Metropolis, Inc. promised to:

• Keep the Club Rio Premises clean at its own expense and to remove all refuse

from the Club Rio Premises;

• Refrain from bringing or permitting any obscene or pomograpIuc material on

the Club Rio Premises and not conduct any obscene, nude, or semi-nude live

performances on the Club Rio Premises;

• Not use, suffer, or pernut to be used., the Club Rio Premises in violation of any

restrictions affecfiing fihe Club Rio Premises, including the prohibitions against

unlawful activity and obscene or pornographic material on the Club Rio

Premises or conduct any obscene, nude, or semi-nude live performances on

the Club Rio Premises; and

• Not do anything or suffer or pezmit to be done anyfhing in or about the Club

Rio Premises which would violate any covenants made by Plaintiff in fihe

Bowling Center Lease.

Ex. 2. The term of the Metropolis Sublease was extended to May 31, 2019 by AMF's prior

owner.

2 The alleged parties extended the terms of the Metropolis Sublease without materially altering the terms of the

Metropolis Sublease.

GROUNDS FOR EVICTION —PAGE 2 OF 6

19119Zdv.l

276
^,

1"h

. L

C. Sublease between Metropolis and Rio Ventures, Ltd.

On Mazch 6, 2047, the alleged Metropolis and Rio Ventures, Ltd. {"Rio Ventures")

entered into aseven-year sublease agree~aent far the Club Rio Prernis~s (the "l~ao Ventuua~es

Sublease," attached and incorporated herein as E~ibit 3).' Rio Ventures agreed to Limit their

use of the Club Ria Premises to the use prescribed in the Metropolis Sublease. Ex. 3, ¶ 4.

Furthermore, Rio Ventures agreed to comply with all provisions of the Metropolis Sublease, Ex.

3, ¶ 4.4 Moreover, Rio Ventures agreed to be bound by tl~e Metropolis Lease and to assume the

same role and perform all obligations of Metropolis in the Metropolis Lease as benefiting

Plaintiff. Specifically, Rio Ventures agreed it would not:

• Create a nuisance;

• Interfere with any other tenant's normal business operations or AMF's

management of the building where the Premises are located;

• Permit any waste; and

~ Use the Club Rio Premises in any way that is extrahazardous, would increase

insurance premiums, or would void insurance on the building where the

Premises aze located.

Ex. 3, ¶ 7. The term of the Rio Ventures Sublease was extended to May 31, 2019 by AMF's

prior owner.

GROUNDS FOR EVICTION

THE METROPOLIS SUBY.EASE LS VOID

Defendants' have no right to possession of the Club Rio Premises because the Metropolis

Sublease is void. Defendants fraudulently represented that they had authority to enter a Tease

agreement on behalf of Metropolis, Inc. In fact, Metropolis, Inc. denied that it has ever entered a

lease agreement for the subjec# property. See Exhibit 4, Affidavit of Bel Trivedi. On January

27, 2015, the 190th Judicial District Court in Hazris County, Texas, entered judgment declazing

that no valid lease agreement exists between AMF and Metropolis, Inc., and that any purported

3 The alleged parties extended the terms of the Rio Ventures Sublease without materially altering the terms of the

Rio Ventures Sublease.

Because Rio Ventures assumed the obiigarions contained in the Metropolis Sublease, Rio Ventures is liable to

Plaintiff for breach of covenants contained therein. Amco Trust, Inc. v Naylor, 317 S.W.2d 47, 50 {Tex. 1958);

Menges x Willoughby, 505 S.W.2d 379, 384 (Tex. Civ. Apg.—San Antonio 1974, writ reed n.r.e.); Jones v. EI

Paso Naturat Gas Products Co., 391 S.W.2d 748, 754 (Tex. Civ. App.-=Austin 1965, writ refd n.r.e.}.

Furthermore, "a third party may enforce a contract it did not sign when the parties to the contract entered the

agreement with the clear and express intention of directly benefiting the third party." Tawes x Barnes, 340 S.W.3d

,:,' 419. Here, the Rio Ventures Sublease was expressly intended to directly benefit Plaintiff; thus, Plaintiff can also

`~ enforce the provisions set forth in the Rio Ventures Sublease against Rio Ventures.

GROUNDS FOR EVICTION —PAGE 3 OF 6

~911924v.1 

277
• a ~ ~ y f

r

"".,

lease agreement between AMF and Metropolis, Inc. is void ab initia. See Exhibit 5, Agreed

Final Judgment. The sublease agreement Defendants purported to enter into on behalf of

Metropolis, Inc. is void based Defendants' fraudulent acts. Furthermore, the 190' Judicial

District Court entered judgment declaring that any sublease agreement of the Club Rio Premises

between Melxopolis, Inc. and Rio Ventures, Ltd, or Rio Club, LLC is void ab initio. Because Rio

Ventures, Ltd. and Rio Club, LLC's right of possession is premised on a valid sublease

agreement between AMF and Metropolis, Inc., and because there is no valid sublease agreement

between either AIV~ and Metropolis, Tnc., or Metropolis, Inc. and Rio Ventures, Ltd. and Rio

Club LLC, Defendants' have no right of possession to the Club Rio Premises. Accordingly,

eviction is proper under the Te~cas Property Code.

DEFENDANTS' BREACHES OF THE SUBLEASES

(ASSUMWG 'THE METROPOLIS SUBLEASE IS VALID}

A. Unlawful Purpose/Illegal Acts

Assuming, arguendo, that the Metropolis Sublease is valid, Defendants agreed to use the

Club Rio Premises as a restaurant, baz, or nightclub or any other lawful purpose approved by

AMF in writing. Instead, upon information and belief, the Club Rio Premises have become a

safe-haven for pervasive underage drinking, illegal drug use, public sexual activity, violence,

azmed robbery, and theft. Defendants regularly serve and/or allow minors to consume alcoholic

beverages both inside Club Rio's doors and in the shared common parking lot, in violation of the

laws relafiing to drinking age limits and open containers, and in violation of the Metropolis Lease

and Rio Ventures Lease. Even more, Defendants' patrons regulazIy use illicit drugs openly in

Club Ria and in the shared parking lot, assault one another in the parking lot and within the Ciub

Rio, commit theft (ranging from theft of purses to cars to violent robberies at knife-point) in the

parking lot and within Club Rio, carry concealed weapons in the parking lot and within Club

Rio, and engage in public sexual activities in the parking Iot. Each of these unruly behaviors

violates state law as well as city code, thereby viaiating all lease covenants concerning illegal

activity. See Ems. 1, 2, & 3. Accordingly, the Club Rio Premises create a dangerous condition

that ath~acts criminal misconduct and makes such conduct an unreasonable and foreseeable risk

of harm to all the tenants' invitees.

Further problematic, Maroc Bar is operating without a Certificate of Occupancy and

without a license to distribute and sell alcohol. Pursuant to various codes and regulations, all

businesses are required to have a Certificate of Occupancy to conduct business within the City of

San Antonio. This requirement is mandatary in order to maintain code compliance and safety.

Likewise, the Texas Alcoholic Beverage Code requires that clubs, such as Mazoc Bar, must

obtain proper licenses before they can sell alcohol to the public. Maroc Bar's failure to maintain

a liquor license violates city ordinance and sections 11.39(b)(3} and 61.05 of the Texas Alcoholic

Beverage Code. Mazoc Bar's failure to obtain and/or maintain a Certificate of Occupancy and

the appropriate TABC licenses is a violation of numerous codes and regulations and thereby

violates the lease covenants concerning illegal activity addressed in all the lease agreements

governing the Premises. See Exs.1, 2, & 3.

GROUNDS FOR EVICTION -PAGE 4 OF 6

1911924v.1

278
P"~1

Defendants have also violated Section 15-190 of Article VIII of the San Antonio

Municipal Code, which requires an operator of a semipublic swimming pool to have a license for

the pool, by failing to maintain a requisite license. Upon information and belief, Defendants

have nit ~b~ai~ed the required lieen~e. Iaa addition to not p~sses~ing aa~ rraaantain~g a licea~P

for the semipublic s`~►imm~rig pool, Defendants operate the swimming pool in a dangerous,

unhygienic and unsafe manner contrary to public health and safety, in violation of the subleases

and in violation of several municipal and state statutes, including San Antonio Cade of

Ordinances, Chapter 15, Article VIII, Sec 15-187 [Responsible for knowledge of all rules], 15-

188 [Compliance with ADA], 15-194 [Intoxication; communicable disease], 15-197 [Safety

equipment], and Texas ,Administrative Code, Title 25, Part I, Chapter 265, Subchapter L, Rote

265.202 [Food, Beverages, and Containers at Post 10/01/99 and Pre-10/01/99 Pools and Spas].

Accordingly, Defendants aze engaging in unlawful activity by operating the semipublic pool in

Mazoc Bar.

Furthermore, upon information and belief, Defendants knowingly permit its patrons to

leave the Club Rio Premises with liquor purchased at the premises in violation of several Texas

statutes including Tex. Alcohaiic Beverage Code Ann. § 28.10 ["A mixed beverage peimittee

may not permit any person to take any alcoholic beverage purchased on the licensed premises

from the premises where sold"] and facilitate public intoxication within and outside the shazed

parking lot in violation of Texas public intoxication and safety laws including Tex. Penal Code

Ann. §§ 49.031, 49.02, 49.04, and Tex. Alcoholic Beverage Code § 101.75.

~ B. Obscene/Pornographic Behavior

Additionally, upon information and belief, Defendants encourage and/or permit lewd,

obscene, and pornographic behavior inside Club Rio and outside in the pazking dot. Specifically,

Defendants encourage female patrons to dress in scantily clad. attire by hosting underwear parties

and foam parties. The pazking lot is a literal breeding ground for Club Rio patrons which engage

in lewd behavior. Tenants on the Premises have found used condoms in the pazking lot while

some have been solicited by prostitutes. Defendants regularly have go-go dancers performing in

next to no clothing. Additionally, Defendants allow the pool to be used and have in fact

recorded videos of females in skimpy, two-piece bathing suits fondling one another which is

used as promotional material. Defendants also advertise for "Rio Run Saturdays" with "selfies"

of females, some not wearing tops. Such conduct violates the prohibition against obscene, lewd,

semi-nude activities and pornographic material, and constitutes a breach of the lease covenants.

See Exs. 1 & 2.

`\

GROUNDS FOR EVICTION -PAGE 5 OF 6

1911924v.1 

279
G Trash

Upon information and belief, Defendants have further failed to maintain the Club Rio

~'~~~s~s ~ a~~ordanr~ ~ratl~ the Metropolis S~.ble~s~ mad the F~ao ~IentLr~s S~b1_~~s~ T~g~rdaaig

the cleanliness of the Premises. Defendants' patrons regularlq trash the shared parking lot, and

Defendants wholly fail to even attempt to clean up any of the mess. After the weekend, or a

weelaiight in which Club Rio operates, the pazking Iot and sidewalks aze littered with broken

glass, beer, wine, and liquor bottles, beer cans, condoms, clothing, and cigarette buds. AMF is

leis to clean up Defendants' constant mess since Defendants~refuse to clean their patrons' mess.

Defendants' littering is a violation of law and a breach of the lease covenants.

D. Pool

Upan information and belief, Defendants allow patrons to use the pool. As stated,

promotional videos show patrons in the pool in little clothing with alcoholic drinks and without

an on-duty lifeguard. Naturally, the pool becomes a cesspool of alcohol, sweat, and other bodily

fluids. Without permission from AMF, Defendants drains the pawl directly in the pazking Iot,

flooding the parking lot with the stench of chlorine and other chemicals. Such actions constitute

violations of the Tease covenants and it creates a public nuisance.

E. Signage

Upon information and belief, the parties to the void Metropolis Lease negotiated and

agreed that the tenant would not place any signage "or other thing of any kind" on the property

without the prior written consent of the landlord (i.e., Plaintiff}. Defendants have violated the

void Metropolis Lease and the Rio Ventures Sublease by placing signage and other items on the

Club Rio Premises without AMF's prior written consent Defendants' signage and other items

are a direct breach of the lease covenants.

GROUNDS FOR EVICTION -PAGE 6 OF 6

19119Z4v.1 280
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APR* ?3-2015 63:29 FROM: JF3 CIVIL.

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AIVI~' ~3UWL~'NG CTNT1~~tS, INC., ) NSTICE OF TSE FEACE COUYtT

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PRECII~TCT 3, PLACE 2

XtyU'V~N'~T~S, L'S'D.,

Anrl RIO CLU73, LLC.~

~IePend~ntd~. ) B~?ZAl~ COYTN'X"f~C, 7~AS

ORDEi,~

On tTus dQy, came on to bo cons~derod AMF Bowling Crintars, Inc.'s Mottot~ for

5umcn~uy ~7is~ositio~. ~.fter considorin~ the motion and mr~~nvtits of couasoly tJ]C COLII~ f1i1Gj5

ghat Aivd~ BowiFng Centers, Zao,'s 1V~otion for Summary Disposition should be G1~AN'I~D.

It is. therefore, ORDE~3D that AMF Bowling Centexs, It~o.'s Motion for Summary

D3spositlon is j~~►b~r GR.ANT~D,

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METROPOL,iS, INC., §

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Defendant, §

cause No. Zais-01499

1/1412015 8:46:16 AM

Chris Qanief -District Clerk

Harris County

f Envelope No: 3759162

~ ,., By: MCNEAL, ARI(?NME

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190'CIT JU[)1CIAL DISTRICT

HAR121S COUNTY, TEXAS

AGREED FTNAL,IUUGM~NT

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This case came before the Court for a final adjudication. All parties appeared or waived

appearance, announced ready for trial or waived announcement, waived a trial by jury, and

announced that they had settled this case, subject to the Court's entry of this Agreed Final

Judgment. After reviewing the pteadings an file herein, evidence adniiited and being otherwise

fully appzised, the Court finds the following;

Metropolis, tne. is a domestic For~Profit Corporation organized under the laws of Texas.

Metropolis, Inc. has been managed and/or operated by I3a1 Trivedi since 2002 as

represented by Bal Trivedi and reflected by public information reports filed with the

Texas Secretary of State.

Metropolis, Inc. never entered into any agreements with AMF Howling Centers, Inc. ar

any of its associated entities.

Metropolis, Tnc. never entered into any sublease agreements with AMF Bowling Centers,

Inc. or any of its associated entities for the sublease of the premises known as 13307-A

San Pedro Avenue, San Antonia, Texas 78216 and/or 133 7 San Pedro Avenue, Suite A,

San Antonia, Bexar County, Texas 78216, the lease propE:i~ty ai issue in this matter.

RECpRDER'S MEMORANDUM

~tt~g insauinent is of poor qusl9t~l

at the tlme of tmagtng

AGREEDFINALJtfDGMENT—Page

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Metropolis, Inc. never authorized anyone to enter into any sublease agreements on its

behalf for the premises known as 13307-A San Pedro Avenua, San Antonio, '~ea~~ 7~~ ~ 6

~~.r~r ~33J~ 5asn P~d,~ ~,~~~ue, ~~ai~ A, San ~`in~onio, Bexar County, Texas ~8~16, the

lease property at issue in this matfer.

Metropolis, lnc. never entered into any agreements with Ilia Ventures, Ltd. or any of its

associated entities.

Metropolis, Inc. never entered into any sublease agreements with Rio Ventures, Ltd. or

any of its associated entities for the sublease of the premises known as i 3307-A San

Pedro Avenue, San Antonio, Texas 78216 andlor !3307 San I'cdro Avenue, Suite A, San

Antonia Bexar County, Texas 7$216, the Jease property at~issue in this matter.

Metropolis, Inc. never auflzorized anyone to enter into any sublease agreements on its

behalf to lease the premises known as 13307-A San Yedro Avenue, San Antonio, Texas

78216 andlor 13307 San Pedro Avenue, Suite A, San Antonio, Bexar County, Texas

78216 to Rio Ventwes, Ltd. or any other party, the lease property at testae in this matter.

Metropolis, Inc. never requested AMF Bowling Centers, Inc. and/or its associated entities

to consent to a sablease for the premises known as 1330?-A San Pedro Avenue, San ;

Antonio, Texas 78216 andlor 13307 San Pedro Avenue, Suite A, San Antonio, Bexar /

Co~uity, Texas 78216, the lease property at issue in this matter.

Metropolis, Inc. never consented to or ratified any sub]ease agreements entered into for

~' the premises known as 13307-A San Pedro Avenue, San Antonio, Texas 78216 and/or

13307 San Pedro Avenue, Suite A, San Antflnia, Bexar County, Texas 7821b, the lease

property at issue in this matter.

To the extent that Metropolis, Inc, is a party to any sublease agreements for the premises

known as 133U7-A San Pedro Avenue, San flntanio, Texas 78216 and/or 13307 San

Pedro Avenue, Suite A, San Antonio, Bexax County, Texas 782] 6, Metropolis, Inc.

hereby terminates any and all sublease agreements ~s of Monday, January 12, 201 S, and

the same shall be void ab initio.

io the extent that AMF Bawling Centers, Inc. or any of its associated entities are parties

to any sublease agreements with Metropolis, Inc. for the premises known as I3307-A San

Pedro Avenue, San Antonio, Texas 78216and/or 13307 San Peciro Avenue, Suite A, San

Antonio, Bexar County, Texas 782X6, AMF IIawling Centers, Inc, and/or its associated

entities accept Metropolis, Inc.'s termination of the sublease agreements and the same

shat! be void ab initio.

ror all these reasons, tha Agreed Final ]udgment should be entered. It is hereby

ADNDGBD AND DECREED that Metropolis, Inc. never entered into any sublease

agreements with AMF Bowling Centers, Inc., or any of its associated entities, for the premises

AGREED FIiVALJtlDGME1VT—Page Z

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known as 13307-A San Pedro Avenue, San Antonio, Texas 78215 and/or 13307 San Yedro

Avenue, Suite A, San Antonio, Bexar County, Tcxas 78216.

ADJUDGED AI~TD DECREED that Metropolis, Inc. does nat have any rights, interests or

obligations under any sublease agreements cvcr executed wsth AMF Iiowiing Centers, Inc., or

any of its associated entities, for the premises 3ct~own es 13307-A San Pedro Avenue, San

Antonio, Texas 78216 and/or 13307 San Pedro Avenue, SuiEe A, San Antonio, Bexar County,

Texas 78216.

AD3U77GED AND DECREED that to the extent any sublease a~reemenf exists between

Metropolis, Inc, and AMF Bowling Centers, inc., or any of its associated entities, for the

premises known as 13307-A San Pedro Avenue, San Antonio, Texas 78216 and/or 13307 San

Pedro Avenue, Suite A, San Antonio, Bexar County, Texas 78216, the agreement is void ab

initio and is also terminated without fi~rther force and effect,

ADJUDGED AND DECREED that Metropolis, Inc. did not enter into any sublease

agreements with Rio Ventures, Ltd,, or any of its associated entities, for the premises known as

13307-A San Peden Avenue, San Antonia, Texas 7$216 and/or 133Q7 San Pedro Avenue, Suite

A, San Antonio, Bexar County, Texas 78216.

ADJUDGED AND DECREED that Metropolis, lnc. does not have any ri~his, interests or

obligations under any sublease &greements ever executed wi#h Rio Ventt~res, Ltd., or any of its

associated entities, far fhe premises known as 13347-A San i~edro Avenue, San Antonio, Texas

78216 and/or 1330? San Pedro Avenue, Suite A, San Antonio, Bcxar Caunfy, 'texas 78216.

ADJUDGED AND DECREED that to the extent any sublease agreement exists between

Metropolis, Inc. and Rio Ventures, Ltd., or any of its associated entities, for the premises known

as 13307-A Sate Pedro Avenue, San Antonio, Texas 78216 and/or 13307 San Pedro Avenue,

Ace~En F~N~r,JunCnt~n~r—Page 3

1881 i85v,1

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ADJUDGED AND DECREED iliac etich' party+ N~i(1 bear its awn casts, including

attorneys' fees, incurred in this lawsuit It is tug Q~er

ORDERED, ADJUDGED AND DECREED by tt~e Court that this Judgment is final,

disposes of all claims and parties, is appealable and that all other relief not expressly granted in

this Agreed rival Judgment is denied. This Judgment disposes of a!! claims and ail parties.

Signed thisi~~of„~{__~,,~142915.

AGnEED AS TO SUBSTANCE AND FORM:

r

Lee L. Cameron, r.

Counsel for Plaintiff'

AMF Bowling Centers, Inc.

C ~~

Ba! Tr~vcdi

Counsel for Defendant

Metropolis, Tna.

AGREI'i.D FINAL J(1pCMENT—Page 4

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Co~v_ Texas certify that ~h%s is a ~ru~ and

correct copy ~f the original record filed anal or

recorded inr. my affi~e;electro~icallv ar hazel

~op~ as it agp~ars on this date.

~Mness my official hand and seal of office

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Gertifie~ 13oct~negt Number: 639~9717b

Chris Daniel, ~I~TRICT CLERK

AARRTSCOTJr:TY','TEYAS

In accordance ~vi~e Teas ~a~ernme~t Code 4Q6AI3 eleciranicalh- tra~smi~ted aathenticated

dacnmeats are'slid. if there is a +q~estian regarding the raiidit~ of this document and yr seal

please ~-ma~7 snggart~hcdicfrictclerk.com

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CAUSE NO.201S CV 03QOz -=L

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AMF BOWLING CENTERS, INC., § IN THE COUNTY C~RT.~ ~m

Plaintiff, § ~~, ,r, ~ o

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RIO VENTURES, LTD., and § o ~ r~-+z .. ~-~,—

~a,- RIO GZUB, L.L.C., § ~ f~ *sm

Defendants § BEXAR COUNTY, TEXA~~

ORDER ON DEFENDANTS' MOTION FOR StfMMARY DISPOSITION

On August 13, 2015 Defendants presented their Motion for Sunomary Disposition to the

Court. Upon due consideration of the Motion, the evidence presented at the hearing, the

applicable legal authorities, and the arguments of counsel, the Court finds that the relief

requested should be GRANTED.

IT IS 'I'HER~FORE, ORTDERED, ADJUDGED AND DECREED That Rio Ventures,

Ltd. and Rio Club, L.L.C. aze entitled. to possession of the Premises.

THIS YS A FINAL ORDER.

SIGNED g" ~ 3-fa

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ORDER ON MOTION FOR SUMMARY DISPOSITION PAGE 1 OF 1

1073
APPENDIX E
/"R !"~a

CAUSE NO.2015 CV 03002

AMF I30WLING CENTERS, INC., § IN THE COUNTY~4IT ~ ...--..

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RIO VENTURES, LTD., and § ~ :2~;

RIO CLUB, L.L.C., § ~ ~; ~''

Defendants § SEXAR COUNTY,~EX~~~ --

cn

ORDER F4R POSSESSION

4n August 13, 2015, the Court considered the de novo appeal of the forcible entry and

detainer appeal of the above captioned matter from the Justice Court Precinct 3, Place 2, Bexar

County, Texas, Cause No. 32-E-15-00716. Upon due consideration of the papers on file, the

evidence presented, the applicable legal authorities, and the arguments of counsel, the Court

finds that possession of the demised premises, 133Q7-A San Pedro Ave, San Antonio, Texas

78216 (the "Premises"} be awazded to Defendants Rip Ventures, Ltd., and Rio Club, L.L.C. The

misnomer of Metropolis Nightclubs I, L.P. on the Lease, Sublease, Metropolis Extension, and

R.io Ventures Extension does not impact the validity or enforceability of the Lease, Sublease,

Metropolis Extension, or Rio Ventures Extension.

IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that judgment for

possession of the Premises is awarded in favor of Rio Ventures, Ltd., and Rio Club, L.L.C.; and

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the bond shall be

relinquished and discharged to Rio Ventures, Ltd., and Rio Club, L.L.C.;

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that al! writs and

processes for the enforcement of this Order may issue as

SIGNED Sr`I ~• t

ORDER

ING

1 OF 1

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LANDLORD; AMF BOWLING CENTERS, ~Nc.

TENANT: Metropolis, inc. or assigns, dlb/a MetropaEis

LOCATION: 933Q7 A SAN PEDRO AVE.

SAN ANTdNI~, TEXAS

SUBLEASE AGREEMENT

TABLE ~~ CONTENTS

• ~ Article 1 Parties

Article 2 Premises

Article 3 Term and Use

Article 4 Possession

Article S Rental

Article 6 Tile ~ .

Article 7 Alterations

Article 8 Removal of Chattels

Article 9 Camplfance far Tenant's Account

Article 10 Utill~ies

Article 11 assignments, Subletting &Discontinuance of Operation

Article 12 Repairs

Article 13 . Damage 6y Fire

Article 14 Indemnity

Article 15 Regula~ior~s

ArficSe ~ 6 Eminent domain '

Artlol~ 't 7 Default

Article 18 Notice of Termination

A~icle 19 Right of Entry

Article 20 fteletting After Tenant's Default

Aficie 21 Notices

Arrticle 22 Waiver

Article 23 Genera{ Provisions

At#icE'e 24 Mechanic's Uen

Article 25 ~omman Facilities

Ar~cle r° 28 Reai Estate Commissions

Article i 27 Occupancy and Rectal Taxes

Article 28 Real Estate Taxes

Article 29 Signs

A~icle 30 Contingencies

Article 31 Security Deposit

Article 32 Renewal Option

A~icle 33 Landlord Fixtures and Equipment

1

1

1

2

2

3

3

3

4

4

5

5

6

B

7

8

8

8

9

9

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11

11

12

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12

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ART. 1. This lease; made in quadruplicate, fhe 14fih day of October

20(?5T by and between AMF BOWLING CENTERS, INC.. a corporation

organized and existing under the laws of the Commonwealth of Virginia, having

its principal place of business of 8100 AMF Drive, MectlanicsviUe. Virginia 2311'f

hereinafter referred to as "l.,andlcrd", and Metropolis, Inc, or assigns d/b/a

f~etropof'ts a limited liability company, organ'~zed and existing under the lavtirs of

the State af•Texas~ hereinafter referred to as "Tenant",

WITNESSETH:

PREMISES

ART. 2, The Landlord does demise and let unto the Tenant and the

Tenant does lease and take tram ttZe Land{ard for the term acrd upon tine terms

and candiftons set forth in ifiis tease the premises known as 13307-A San Pedro

Avenue, San Antonia, Texas 78216 and consisting of a one story building

containing appro~cunatety 13440 square feet of space artd ouFslde fenced area

containing approximately 8,20a square feet as more particuEar[y shown on

Exhibit A a~ttaeh~d hereto and rmade a pact hereof (the "Premises"), together with

a license to use as and to the event that the same presently exist subject,

however, to'the provisions of ART. 25 h~reaf, all Common Facilities, including

`- parking areas and all streets, service drives and sidewalks shown on Exhibit 8

attached hereto and made a dart hereof within the area described as "Entire

Premises".

TERM OF USE

ART. 3. To have and to hold the same far the term (subject to Art. 4

and Ark 30 hereof} to commence on ~atober 14, 200 and to end on tP►e 30fLi ,

day of September, 2008 at Midnight, unless sooner terminated as herein

provided, and for any euet~cised option periods-as specit+ed in ART. 32 hereof.

Said Premises to be used as a Restaurant, Bar or N(ghtclut► or for arty other

lawful purpose approved by Landlord in wrI~ng, whose approval will not be

unreasonably withheld, and ~xoept as speaf~cally limited in Article 1 ~ hereof.

POSSESSION

ART, 4. The Tenant accepts the building, improvements, and

mechar~icat systems ~n tf~s Premises in their present condition. The Tenant

agrees #a deliver to the Landlord physics! possession of the Premises, upon the

termination of the term hereof, or any e~cEensians thereof, free and clear Qf all

tenants and occupants and tt~ee:~ights of either. in good conditian~ reasonable

wear and tear excepted. Ter~anf shall keep tt~e Premises clean at its ovm

expense, and wiq remove a41 refuse from the Premises. Tenant shall not bum any

materiaEs or rubbish of any descr~p~on upon the Premises. Te~ar~t agrees to

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keep all accumulated rubbish in covered containers and to have same removed

regularfy, to the event Tenant fails to kip ttn~ I~~~i~~~ ~~d ~the~ pc~ar~s

heretofore descn'bed in the proper condtttan Landlord may cause the same to be

doge far end an ac~aunt of Tenant and Tenant hereby agrees to pay the

expense thereof an demand as addittona{ rent

RENTAL

ART. 5, The Tenant agrees to pay to the tandlard the guaranteed

annual rer~t~l without p~iar demand, in equal montF~ly instailmerits based on the

rental schedule below, on the first day of each and every month during the term

hereof for the current calendar month, cammendng October 14, 2005; provided,

however that the manthty rental due and payable for the period October 'i4, 20 5

through Nat+ember 30, 24Q5 shop be $0 and the monthly rerrta! far fhe month df

December 2005 shall be paid ire advance on the dafe this lease is executed. The

aforesaid payments of~ rent are to he made fo the landlord by delivery of the

funds t~_the Center Manager iof AMF Country Lanes, 13307 San Pedro Avenue,

San Antonio, Texas, onto such other place ss shai{ tie designafied by Landlord in~

writing at least ten {10j days prior to the next ensuing rent payment date.

RENTAL SCNEDUL.E

October 14, 20I}5 thrta November 30;2005 $0 Mo.

December 1, 2005 thru Sept~rnb~r 30, 2006

Mo.

October 1, 2406 thru September.30,2407

Ma.

October 1, 2007 thru September 30, 20Q8 -

Ma.

If any monthly ins~aEimer~t is not paid by the fifth (5~) day after the due

date thereof, Tenant sha11 atsa pay, in ad~itlon to the monthly rental instatimen#,

• a late fee equal to fnre pert~nt {5%) of such monthly rental instalhn~nt.

T(1`LE

ART, 6. The Landlord herein is r►at the owner of the Premises but

holds possession of same by virtue of the following lease agreement (herein

referred to as fhe "Over~ease"}:

Sublease dated October 1, '1989 by and befween ~.W. WOOLWORTH

GO., as landlord, hereinafter referred to as "Ovartandtard" and AMF BOWLING

CENTERS, lNC., as tenant, a facsimile of whicF~ shat! be atfached to this Eease

for reference and otf~er purposes rela~ng to this lease.

The Tarrant agrees that it wi!{ not do (or sufFer ar permit to be done)

anything in or about the Premises or in connecEion therewith which violates any

of the covenants.made by the Landlotd as tenant in said Overiease. The'

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affa~ng said Premises.

Lan8lord agrees that fhe Tenant, upon paying the rent and perform€ng a!t of ths

~~►~~ ~~i~~. ~~ ~ ~~~ lease, ~a~v quae~y ~~I~I U~M ~ ~~cy the P~errz~~ d€c~~g ~h~ ~~rr~

hereof, free ftom hindrance, or molesta~an by the Landlord, but subject however,

~o the Overleasa and atl mortgages, tiens~ res#ricfians and sncumbrartces .

The covenants of this lease shaft not be binding upon AMF BOWLING

CENTERS, INC. if it shall far any reason cease to be the holder of fhe said

4veriease, provided tts successor assumes the obtiga~ans of E.ar~dlord under

this tease, including the covenant of quiet enjoyment

AL3'ERATIt~NS

ART. 7. The Tenant agrees that ~t will not without first obtaining the

written cartsent of the ~andtord make any structural ornon-structural changes to

the Premises. The Tenant agrees to pay the entire cost of ap.prior approved

changes and a(teratians. Landlord hereby agrees that consent for Tenant to

make alterations shall not be ~unreasanably withheld. CR addition, Tenant hereby

agrees to invest a~ least $100,000 in refurbishments to the P~mises vutthin fhe

initial ninety {80} days of the ierrn of the lease, and to promptly thereafter provide

landtard with copies of at{ paid k~voices and lien releases applicable to the

associated refurbishments. Tenant shag not finance the cost of any such

refurbishment with any third party debt serrured by the Premises ar any related

nefurbishmer~ts.

The Tenant agrees that all changes and aiteratfons made by iE to the

Premises shall be made in a good and workmaniik~ manner in accordance with

plans and specifica~ans submit#ed to and approved by Landlord, and in

conipliarice witi~ all federal state or municipal laws and ordinances and the rules

and regulations of any department ar dirrision thereof. The Tenant also agrees

that prior to ifie making of any changes ar altera~ons to the Premises, tt wi!}

procure at ids own expense and maintain and keep in fore: Atte~atians riders an

the pubt~c fiabflity Insurance policies described in ART. 14 hereof protecting the

Landlord against loss or liability during the mgking of such changes or

alterations. ~•

in the event that (x} the total cost of any alteraf~ans to be pertarmed at any

dime exceeds $10,QDO.QO acrd (y) such altera~ons are being performed by fhi~ci

parties {rather than persons assacfat~d with Tenant) Tenant shat( provide

LandD~rd wig ~itt~er 3ien ret~ase~ evidenaitag payment of ail work performed on ~

monthly basis for all w~ric performed during such month or a completion bond

payable in ttEe event of defaui# to AMF Bowling.Centers, Inc, in an amount equal

to the cast of the changes or alterations from a bonding com~sany Cc~nsed by the

StaEe of Texas and aacegtabie to Landlord. Any such completion bond shat! be

delivered to tF~e L;andford pc~oc to the cammencemenf of any changes or

altera~orts to the Premises.

REMOVAL OF GHATTELS

51
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AFtT, B, In the event the Tenant shall nat be in de~auf~ under the

fiarrns and provisions of th'ss lease fhe Tenant may, prlo~ to the terminatfan

thereof, remove the Tenar~Ys chapels, fixtures acrd persanai praparty from tl~e

Premises provided that the Tenant shalt immediatery repair, at Tenant's sole

expense, any and ap damage done to the Premises by such removal.

COMPLIANCE FQR TENANTS ACCOUNT

ART. 9. Anything f~erein corrtained to the contrary notwithstanding,

the Tenant agrees that if the Tenant shop be in defaui# in petfom~ing any of the

terms, cave~tants, conditions or provisions of this lease on the Tenanf s part to

bs performed, except tfie aavenant concerning the paymerrt of rent, and If the

Tenant stall not have cured such default witFtin thirty (30) days after receipt of

written notice from tFte La~dlard, the Landlord, if it so elects may enter the

Premises for the purpose c f performing the same far the account of the Tenant

and any amount paid or expenses c~ IEabili~es inccrrred by the landlord in the

performance of same, shall be deemed addjtional ant and shall be paid by.the

Tenant to the Lantiiord ate the first day of the foltowln~ calendar month.

UTILITIES

ART. 9Q._ Landlord agFees to provEde, at Its sole expense, ai! utility

services used an the Premises.• UEii'~ies to be only water, electric and or gas.,

1'ha foregoing naiwlthstanding, any interrt~ptian. ire utility service shaEE not:

constitute an eviction or disturbance of the Tenants quiet enjoymen# of Ehe

Premises and, artless the same results from Landlorri's negligence ar intentional

aa~, no damages or rent abatement shall be due Tenant ftom L.andlard.

ASSIGNMENTS. SUBLETTING DISCQNTlNUANCE t)~ OPERATt~N

ART. 11. The Tenant sha(1 not assign, su6iease~ mortgage, pledge, ar

encumber this tease without the prior written consent of the Landtorcl~ which

consent. in the case of any proposed sublease, shall not be unreasonably

withheld. to the even! that Tenant wishes to sublease the Premises, Tenant

sha11, fn eonnectian with its request for Landlord's•cvnsent, provide Landforc! with

a copy of ariy such proposed sublease, copes of all re{ated financial and credit

infon»ation regaccling the proposed sublessee and copies of any and alt

addi~onal information reasonably requested by landlord; provided, hawevar, that

Tenant may redact then rental figures from any ~uah campy of the sublease. `i`t~e

foregoing notwithstanding, the Land{ord will permit the sublease of the Premises

to a corporation awned entirely by, or under fide sole control of, the Tenant.

The Tenant agrees that the value of the Premises and the reputation of

the l.artcfior~ and: Overfandlord will be seriously injured if the Premises are used

for obscene ar pornographic purposes or any snrE of commercial sex

establishment The Tenant agrees that Tenant wig not bring ar. permit any

obscene or pornographic mater~sl an the Premises, and shall not permit or

52
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conduct any obscene, 11Ud@, or semi-nude t)ve perfarmartces on the Prei»Ises,

ii@~ ~3@i'r~i~Y~i iis~ fii i~'i@ "r3'i8F7iiS8S i~f i~Ei'u~~ Fi3C5~@E~ii~j, Pa~9 ~~~~iQ^§, ~~ ~5 ~ ~C2=

coped rubber gBods shop or as a sex club of any sort ar as a "massage parlor".

The Tenant agrees further that the Yenant will nr~t permit any of these uses !~y

any sublessee ac assignee of the Premises. 'This Article shall directly bFnd any

successar~ in interest #o the Tertan~ Tenant agrees that if at any time Tenant

viafates. arty of the p~ovisians a~'this Article, such violation shat! be deemed a

breach of a substantial obfig~~ion Qf the terms of this lease and obJecti~naale

conduct. Pornographic material is defined far purposes of this Article as any

writ#en or pictorial matter wi#h prurient appeal Qr any objects ar instrumetrts that

are prir~tarily cr materially corice~rnad with lewd ar prurient sexual ~ctivity.

Nr~thstanding any sui~le~ing ar assignment, Tenant shill remain iiable~

for the periarmance of all the terms, covenants' and aondi~ians of this lease. In

addition, no such assignment or su6teas~ will relieve any guarantor of fhfs lease

ftam any iiet~iEity under sum guaranty.. ~ .

REPAiFtS

ART. 12. Tenant shaA, at Its own cost and expense, keep and

maintain the Premises and appurtenances thereto and every part thereof, ins

goad orcler and.~epair excr~pt portions bf the Premises to be repaired by Landford~

pursuant to this Artict~ 12° W~haut limiting the foregoing, Tenant agrees to keep

all interior fixtures, ptu_ mb~9, walls and lig~iting m good order and repair, and

'tenant shall be {;able far any damage to such system`s. Tenant agrees to return

the Premises to 1.andtord at the expiration ar sooner termination of this lease in

as good condi#ion and repair as when first cereived, reasonable wear and tsar,

and damage by Fire or other insurable casualty excepted. All damage ar injury to

the Premises or the building, ar the cammatt area, caused by the act of

negiigenoe of Tenani~ his agents, employees, licensees, invites or by v~sito~s

shaft be promptly repaired by Tenant, at its sale Cost artd expense and to the

satisfaction of Landlord. Landlord may make such repairs which are no# promptly

made by Tenant and charge Tenant far the cost thereof and Tenant hereby

agrees to pay such amounts an demand es add'~ionat rent hereunder. Tenant

shall have no right to make repairs at tfte dense of Landlord, or to deduct the

cost thereof from the rent due hereunder,

Tlie landlord agrees fo maintain and pay for {a) al! repairs, struatiaral ar

atbetwtse, to the exterior rsf the Premises, identified as being exteriaC walls,

roofkop HVAC equipment, parking logy, curbs, sidewalks arm alleys.

Nofi~~fttstartding fire above, the Tenant agrees to make and pay for

interior or exteriQt repairs resulting from alterations ar improvements made to tt►e

Premises by Tenant

53
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~"~

DAtv~AGE BY FIRE

ART. 13. The

the building of which the

through any other cause

destruction.

Tenant agrees thaf if the building for tFie ~'rernises or

Premises are a part is damaged ar destroped by fire or

to imm~dlate}y notify the Landlord of such damage ar

In the event the Landlord does not exercise its apfion to cancel and

terminate this Lease as herein provided, fine Landlord agrees to take appropriate

action to require the Overlandlorcl to comply with the provisions of ART. 13 of

sa[d Overlease at Overiandlord's own cos# and expense and there shall bean

abaterneni of cent during the same period and in the same proportion as ~e

abatement of rent realized by the Landlord pursuant to the provision of ART. 13

of the C~veriease.

It is spectftcaily und~rstoad that the l..andlord sha(1 have no obligation

whatsoever to restore the building for the Premises ar the building ofi which the

Premises are 2~ part and that the Land3acd's oblEgations In this respect ace

m~stricted solely to faking the appropriate action referred to in 'Ehe preceding

paragraph of Phis ART. 73. Furthemrore, nalwiths#anding anything in this ART.

13 to fhe carttrary withstanding, the LandiQr~d may, !n the event that l~ndlorci

detemtines, in its sofa discre~on, that the cost of restoring or repairing any such

damages are material, terminate this lease by giving written notice to Tenant, in

which event the Is~se will terminate and neither party will have any further .

liability #a one another under flits lease.

Furthermore, Tenant agrees Yhat in fhe event of damage or destrudian by

fire or other cause of Tenant's leasehold improvements, Landlord shall have no

obligation to impair ar restore said leasehold improvements and Tenant agrees to

maintain insurance coverage on such leasehold improvements and to repair or

res#ore same in the ever~f of damage by ire or other cause.

(h1DEMNiTY.

ART. 14. The Tenant during Elie term hereof shall ~ndemntfy and save

the ~.andforci and the Prerntses free and harmless from and against any and all

claims and demands whether for injuries to ~ersans andlo~ lass of fife, ar

damage to prope~iy~ arising out of fhe use and accupahcy of the Premises by the

Tenant or by any person or persor►s holding under the Tenant, excepting

hoinrever such alatms ared dert~ands whether for irtjca~iea #o pe~on~ or lass of fife

or damage to property caused by acts or omissions of the l..andlord.

The land{ord during.the term hereof steal! indemnify and save harmless

the Tenant and its I'rcensees ftom and against any and alt claims and demands

whether far injaries to persons or loss of life or damage to property, acEsing apt of

acts or omission's of the Landlord.

The Tenant agrees that it will obtain and maintain in full force and effect

54
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througfiout the term cif this lease, public [iabitity insurance with iimifs of not less

fan ~~~~~~3,C~:~~ ~~ ~~3€~ ~e~pe~ t~ ~ecs~.^.ai ~~~:~ese~ aid B~s~ ~€ t~~, ar~~

$500,00 with respect #a property dam~~e, a!I s~uatt policies to cxntain an

endorsement Insuring the Tenant's cantractua( Ifabiiity to the Landlord as set

forth in the preceding paragraphs and an endorsement watering the insur~r"s right

of subrogation against the Landlord. The Tenant further agrees that it small

deliver to tha L.andlard a cet~ificate of the Ensuring company certNying the above

described insurance is in fuq force and effect prior to the commencement date of

this tease and (hereafter on an annual basis no later than January 95 of each

year of the term.

REGULATlOt~tS

ART, 15. IF any federal, stata or municipal gavemment or any

department or division th~reaf shall condemn the Premises or any part thereof

as unsafe or as not in canfarmiEy wiEh, the laws and reguta~ons refafing to the•

use, occupataan and construction (hereof, or has prdered or required or shall

hereafter order ar require any r~bnilding, alteratEan or repair thereof or

irtstalEations therein, Landlord agrees to take appropriate action when sa

requested by the Tenant in wriEing in rec;uire the ~verEandiord at the

4veriandiord's ovm cflst and expense to rebuild ar make such afterafions,

installa~ians and repairs as may be necessary to comply with such laws, orcters

or requirements. If by reason of such laws, orders ar requirements or work done

by the Overlandlord in cannec~ian therewith, the Tenant or its 1lcensees are

'~ _ deprived of the use of the Premises, Tenant's rerrt shall abate during the same

period and in fhe same proportion as the ab~temerrt of rent realized by Landlord

pursuant to the provisions of ART. 15 of the Ove~iease. If, however, such

condemnation,, order or request as in this Article set forth shall be the result of

some unusual use of the Premises by #tie ~'enant ar its licensees, the Tenant

shall comply with such order or requirement wifhin the Premises at jts awn cost

and expense and no abatement of rent shall be granted.

EMINENT DOMAIN

ART. I6. to the event alt of the Premises steal! be approp~ated or

taken under the•powec of eminent domain by any public or quasi-public au#horlfyt

this lease shall terminate and expfia as at the date of such taking and the

Landlord and Tenant sha~il thereupon be released from any further liability

hereunder otherwise arising~from and after the date of such taking.'

in the event part of the Premises shalt be appropriated pr taken under the

power of eminent domain by arty public yr quasi-public authority the Tenant

shall have'the right to cancel and terntinate this lease as of the date of such

takfig upon giving to fEte Landlord notice in writing of Bch election within twenty

(20) days after the receipt by the Tenant from the Landlord of written nonce that;

said Premises have been so appropriated ar taken. to the event of~s~~h

cancellation the Tenant shall thareupan be released from any further liability

under Ellis lease, The larrdiord agrees immediately after arty appropriation ar

55
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' ~ ~ ~ ~ "~

fia{cing to give to the Tenant na~ic~ in writing thereof.

!fi a portion of the Premises shall have been appropriated ar taken and if

this lease shall continue, Then to t~af event, the Landlord agrees to take

appropriate action when so requested by the Tenant ~n wrung to require the

Overlandlord at tl~e Overlandlard's own oesf and expense, to immediat~iy restore

the fauiiding on the Land remaining to a complete unit of i'rk~ quaEify and character

as existed prior to such approprrafion ar taking. Tenant's rent shat! chafe during

the same period and in tfie same proportion as tYie abatement of rent reat'~zed by

Landlord pursuant to the provisions of Art.16 of the Overtease.

DEFAULT

ART. 17. - Each of ttie f411owing shall be deemed a defauf~ and a

breach of ~h~s lease: (a) the fiE1ng of a pe~tion by or against the Tenant for

adjudication as a ban[crupt or tnsoivent; (b) the underEaking of any action for the

• d4ssolu~ion or iiquida~on of the Tenarrt, whether ins#ituted by or against the

Tenant; (c) the making by the Tenant of an assignment for the benefit of

creditors; (d) abandonment of the Premises and a failure to maintain and repair

ttta Premises as required by this lease; fie) faHura to perform any covenant

•(except the covenant conc,~rntng the payment of rent} or condi~on of this lease

on the part of the Tenant to bs pertormed and if such default continues for a

period of thirty (30) days after nonce in writing of the exis#ence of such default

shall be given by the Landlord to the Tenant; (fl failure by the Tenant to pay

within fve (5) days after written demand by Landtiorti~ arty rent or otheG sum or

sums ascerEainable and payable to the Landlord under the terms of this lease;

(gj passage of this lease by operation of taw to any per~an or persons ether than

the Tenant; (h) appointment of a receiver ar trustee for the Tenant's properly if

such receiver or trusfige shat{ not be discharged within fihirly (34) days after his

appointment

NOTICE C?F TERMINATION

ART. 18. to the event aP any such default an the part atthe Tenant,

this lease may be terminated by the.Landlord at any time thereafter by gyring to

the Tenant net teas than five (5j days notice ~n writing of Its tnten~on to terminate

this lease. Upon tfie date specified in such notice of termination, this lease a»d

the term hereof shall expire and come to an end in the same manner and to the

same extent as if such date were the date herein provided far the expiration of

the #erm of phis le~s~a Such right Af ter►xtiina~on ~ha11 be in ~dd~ian to any other

fights and. remedies of the Landlord under the provisions of this lease or

otherwise available to l.andlorct urtda~ applicable law. An election by Landlord to

pursue any one or more right ar remedy shall not constitute an etectlon by

Landlord to pursue such remedy to the exclusion of, ar a~ a waiver of the right to

pursue, any o#her right or remedy.

If the basis flf such notEce shall be salary the failure of the Tenant to make

repairs, atterat~or►s or changes in or to the PremEse~~ and if within the thirty (30~

56
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,.

,\

day period specified by ART. 17 (e) hereof, the Tenant shag have cammencerl

~a,.~# ~ha!! c~~t E~~de c~~:~BRt~~ G~~~ P~~~i~o ~~a~~e~~s or chara~~~, the L~ndla~d

will nat, while the Tenanf is diligently engaged in making said repairs, altara~ians

or changes, give to tFre Tenant native t~rmir~ating this (ease, as provided far in

ttzis Article, unless Tenant`s default may iesutt in the termination of fhe

C?veitease or subject tfie Landlord to a fine or penally.

RIGHT OF ENTRY

ART. 19. in the event of a default on the part of the Tenant pursuant

to the provisions of ART. 17 hereof, the [.andiord or its agent, servants or

represenEa~ves, may immediatelyor at any time thereafter, re-enter the

Premises by #orce, summary proceedings, or otherwise and receive possession

of said Premises and remove all persons and property-therefrom, without being

liable far prasecu~on therefor, and the Tenant hereby e~ressiy waives the

service of any nonce in writing of intention to re-enter. No re-entry by the

Landlorc# sha11 be deemed an acceptance of a surrender of this .lease.

RELETTING AFFER TENANTS DEF/~UL.T

P►RT. 20. fn the event of a default an the part of the Tenant, the

Tenant agrees that !n additlan #o any atfier rights and remedies of the Landlord

under the prav~siotts of this tease, the l.andlard may, but shall not be required fo

do so, relet the Premises or any part #hereof (with or without terminating this

"'~ tease andlor taking passesslatt of said Premises by court action or othervvise)

either in the name of the Landlord or otherwise at such rent as i~ may deem

reasonable and #ar a term which may, in the discre~an of #ire Landlord, extend

beyond the term of~this lease, and in +connection ~nrith such reletting may alter and

change the Premises to ffie extent which may be necessary to suit the needs

and requirements of the r~ew tenant, and the Tenant e~ressfy agrees Eo pay as

liquidated damage fog the breach of the covenants contained in this lease an

amount not to exceed the differences between the rent reserved and the rent

collected ar~d received, if any, by the Landtor~ (less all expenses of every kind of

the Landlord in connection with afte~ing, repairing and releiting the Promises)

• during the remainder of the term of this Eerie. Such difference Qr deficiency

between ffie rent herein reserved and the rent collected shall be tiue and

payable iri monthly payments during the temt of this lease as the amount of such

djfference ar deficiency shalt from time to time be ascertained. _

{dt~TICES

ART, 21. Wherever in this lease it chap Ise required or permitted that

notice ar demand be given ar serried by either party to this lease to or on the

other, such natic~ or demand shall be given and served and shalt not be deemed

to have been duty given and served unless in wtifing and farwarcted by, certiFied

malt, and addressed as follows:

TO THE lANDLfJRD

• 8100 ANiF Qrive

57
.. 1 ~ _ !

Mechanicsville, Vf~ 2311'i

Atten~on: ~c~-~'tesider~t -lea{ ~stata

TO THE TENANT:

Samuel Panchevre

16 Carriage HiiEs

San Antonio, Taxas 78257

Such address may be changed from Mme to fiime by either party by

serving rratices as above provided.

WAVER

ART. 22. No defauii~ shall be deemed waived unless in writing signed

by the ~andfard.

The failure of fie Landland to insist upon a sMct perfo~rna~ca of any of the

terms, covenants and condifioRs ~ierein, shag nat be deemed a waiver of any

rights or remedies that tk►e ~ar~dforcf may have, and shag not be deemed a

waiver of a subsequent breach ar default in the terms, covenants and conditions

herein contained. This instrument may not be changed. modified oc discharged

orally. ~ .

GENERAL PRQVtS14NS

ART. 23. This lease is and shall be considered to be the onEy

agreement between the parties hereto. AH negot~a~ons and ora{ agreements

accep~ble to i~ofih parties are included herein.

1t is further agreed between the parties F~ereto that the signing of this

lease by ifie Tarrant does naE aons~tute a complete transacEfan unfit such time as

Phis fuse shall have been accepted by the Landlord, and executed by its proper

officers.

The captions of this loose are far carnenience only and are nc~t a pall ofi

this lease and do not in any way IimiE or ampiifjr the terms and provisEons of ifiis

tease.

0f more than one person or corpsara#ion is named ~~ Tenant in this lease

and executes the same as such, than ancf in such evaatt the ward `Tenant"

wherever used in this lease, is intended to refer to all such persons or

corporations, and the [iabitify of such persons or corporations for campisance with

and perfarrnance of all ofi the terms, covenants and provisions of fihis lease shall

lae }Qit~t and several.

The Landlord and Tenant agree that aq fhe provisions i~ereof are to be

construed as covenants artd agreements as though the wards importing such
.. i ,,~

- ~ ,,', '.

covenants and agreemen#s were used in each separate paragraph hereof, and

i~~4 iii ag 4~~ ~~v~~ir ris h~~~~ shaDt ~lyd ar~d ;r~€~r~ t~ tts~ ~~.^,e~~ ~ ~e pa~ie~

hereto, and t~tair respecflve heirs, legal represer►ta~ves, successors and assigns.

The Tenanfi agrees that under alt circumstances where the Qveflandiard

shall be required to perFonn any obligation under ifie Overlease and the Landlord

has agreed in this lease to tike appropriate actin to require the Overiandiocd sa

to do, the l.andiord shall be sntftled to a reasonable time within which to require

the Overtandlerd to perform such obCgation.

Na dimine~ion or abatement of rent, or other compensation, shall be

claimed or altawed for inconventenr~, discomfort or interrup~on of business

arising from the making of repairs or improvements to ~e building or for any

space taken to comply with any law, ordinance or order of a governmenfa!

authority, except as eEsewhere herein specfficagy provided.

The Tenant waives all r~ghEs fo redeem under any~law of the State of

Texas which is now in effect or may hereafter be enacted or enforced.

The rights given td the Landlo€d herein are in addition to any rights that

may be given to the Landlord by any stah~~e or of.~erwise.

The Tenant agrees that the Landlord and its agents and employees may

. during reasonable business hours enter in#o and upon the Premises for the

~~ purpose of inspea~ng same, or for the purpose of sale or within six (6j months

prior to the expiration of ~e term hereof 4r any ex#ensiun thereof for the purpose

of rental. During the six (6) months prior to the expiration of the term hereof, the

Tenant agrees ghat the usual nofi~ces "Far Safe" and "Ta Let" may he pEaced and

remain unmote$ted in a conspicuous place upon the exterior of the Premises.

Anytttting in this lease to the contrary nafwiths#ending, the Tenant agrees

that it will not uses suffer or permit to ~ used, the Premises or any part thereof in

viotatioR of any res~-ic~ons affecting the Premises and now in force.

The Landlord shall not be tia~le far arty failure of water supply or electric

c~rrettt, nor for injury or damage to person ar praperEy caused by or resul~ng

from steam, gast'efectric, water, rain or snow, which may teak or flow from any

part of the building nn the Premises or the buUding of which the Premises are a

part, or from pipes, appliances or plumbing work of the same, or from the street

~~ sub-surface or from any other ptace~ c~or for intetf~renc~ with ligh# ar other

tt►an the Landlord, or caused by oparations~ by ar for any governmental o~ quasigovemrnenta! authority in c~nstruc~an of any public arqucsi-public work; the

Landior~i shall not be {fable far any tatent defect in said building.

MECHANIC'S LIEN

. AFtT. 24. The Land{~rd sFrail not be liable for any tabor or materials

furnished ~o the Tenant and no mechanic's or others lien for such I&bor and

~;

59
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materials shat) attaci~► to or affect the Fr~mises or the i~f~~t.af f~~ f.~~idi~rd

therain. Whenever aid as after as any such ien snaiE have been r~iE~~ ~~~i~~~

the P~emises, the Tenant shat[ fortF~with remove or safisfy the same by bonding,

deposit or payment and in defauEE thereof for ten X10}'days afbac notice to the

Tenant, the t..andlard may pay the amount of such mechanic`s il~n or disdzar~e

the same by bond ar deposit and the amount so paid or deposited together with

interest at the rate of tweive ('E2%? percent per annum shall be deemed

additional rent dtte hereunder and payable on the date when the next instafiment

of rent sf~ali become due,

COMMON ~ACIUTfES

ART, 26. The itcsnse given hereunder to Tenanfi to use ~ttie Common

Facilities hereinabove described shall not be deemed to grant or•c~nvey to

Tenant any rights, easements or interest (other than a bare license to use) said

Gammon Faci(i~ies.

l.andtord agrees to take approp~ate action whensa requested by the,

Tert~ntin~wri~ing•to~requlre~#he Ove~landiorci.to maintain.afl o~,said Common

Fadlit~es in good and.usat~le_aandi#ian, free and clear of ice, snow and debris ,

and adequately fighted ~t a[! times when ~enatlt is~open for business,_without

any charge or cost for. such use (ij► Tenant

REAL ESTATE C(3MMISSiONS

ART. 26. E.andiard and Tenanf each hereby represent acknowledge

and agree that it has cf~al~ with no person or party in connection with tf~~s tease

and neither of them owes any person or party any rental commisslons~ broker

€ees or related fees arising out of the negotia#Ion ar consummation of this lease.

Tenon# hereby indemnifies arfcff holds Landlord harmless from any e~aims relating

to any incoccecfies$ or Inaccuracy in the representa~an made by Tenant in the

preceding sentence and Landlord F~ereby iridemni~iea and hr~ids Tenant

hornless from any claims renting to any inca~rectness or inaccuracy in the

representation made by Landlord in the preceding sentence,

OCCUPANCY AND RENTAL. TAXES

ART, 27. Tenant hereby agrees to pay all excise, sates, use,

transac~ian or privilege taxes ar similar taxes however named, which may be

levied, ~ivhefher against l..andford, Ov~rtancltord or T~na~nt~ by any government or

gavemmental agency upon the rental payable under this lease, Tenant's

occupancy of ilia Premises ar the privilege of Tenon# to conduct business in the

Premises. .

REAL ESTATE TAXES

AR's. 28. Landlord shall be t~sponsibla for all payments regarding re81

estate taxes for the Premises.

.1
~1 ~

~~' '.

SIGNS

ART. ~9. Tenant wltl not place ar suffer to be placed ar maintained on

any extetiar doar,.wai) or window of the Premises any sign, awning or canopy of

advesEising matter or otfter thing of any kind and will not place or maintain any

decorainon, lettering or advertising matter an the glass of any window or door of

the .Premises without first obtaining Landlord's prior written approval and consent

in each instance. Tenant further agrees to maintain any such sign, avming

canopy, decara~ion, fettering and advertising matter fi good condition at aEl

Mmes. Goad condifiion as herein used shah tnotude, without limi#atian~ palr~ting,

replacEng Csgh~rtg arsd such repairs and improvements as shill meet l andlord's

spe~ificatlores, All signs shalt be subject to landlord's approrrat and i.andtord

agrees that paid approval shall not be unraasorsably wi~ttheld, Tenant, at

Tenant`s sale expense, shalt be atlowed to place and maintain a {ighted sign on

the pylon sign for the center subject to the provisions above, with n~ add~ianal

charges for said privilege.

COt~TiNGEtdC{ES

ART. 3fl. Landlord's and Tenant's obligations under this lease'

~- agreement shalt be can~nger►t an the Tenant securing all business and liquor

iicanses by January 1, 2006. Should Tenant not secure said' licenses, then

Tana nt shaA have the unilateral right to terminate the Sublease and Landlord

shalt then refum Tenants Security Deposit and the Devember rent payment

SECURITY DEPOSIT

ART. 31. No later than the date this lease is executed, Tenant shall

deliver to Landlord a security deposit (the nSecurity Deposes, in the amount of

?~as security for the

full and fai~ful perturmance at every provision of this lease to be performed by

Ten~n~.The payment of the security deposit shell be in addi~on to the advance

payment of the L?ecsmber 2405 rental pa9d on the date this (sass is executed. if

Tenant defaufis with respect to any provisions of this lease, Landlord in its sole

d'~sct~t~an may elect to use, apply ar retain all or any part ofi the Security Deposit

for the payment og any rent or any other earn i~ defau4t, or ftar the-paymer~t of any

other amount which Landlord may spend ar become obligated to spend by

t~eason of Tenant's defaul# or to compensate landlord for any other loss or

damage whEch Landlord may suffer by reason of Tenant's dsfaul~ Said Sactr~ity

Deposit shall be in the form of cash; Landlord shall riot be liable to Tenant for

interest accruing;to or earned by such deposit If Tenant shall fully and faithfully

perform each prevision of this tease to be performed by it, the Security Deposit

ar any unused balance thereof sF~atl he returned to Tenant ~t the expiratiart of

the lease term and upon Tenant's vac~~ing the Pfernisss. Providing Tenant lies

61
~ 

~ .

~~'.~

not defaulted on arty of the lease terms, of the Beautify Deposit shall

be applied to December's 2006 man#hly rent payment resuiiing in ~ ~~v~ S~eurity

Deposit balance of ~ ~

RENEWAL OPT~QN

ART. 32, Provided Tenant is not in default an any of the t~ 1nd

conditions af.this lease at the expita~ion of tine original term of the rasa,

Landlord f~ereby gracits Ten~~ the option to renew this a~greemenk for fwo (2)

option periods. The first op~ian period for a three (3) year period' (October 1,

2U08 throug~i September 30, 2411) ender the same terms and 'conditions as

contained. herein, except that the monthiv rental amount shalt be at . per

month for ths first year af,ths op~an, per month fior the secbrid option

year, and per mor►th far the in~rcropuon year, 7ite second option pei~od ,

for a two t2} year eight (B) month period (October 7, 2Q11 through May 3'i, 20i4)'

under the same terms and conditions as cc~n#atned hereir~,~ except tt►a~ the

monthhr rental amount shat{ Eye at~ per month Eoc the fist year of the

option, per mari#h far the second Qption year, and : per month

for ~irtal months of said opfl4n year Tenant shah ~ofify Landlord by certified

signed receipt mail na later titan 6 months prior fo the eacpiration of the then

present tease term ~f the Tenant's intent to exercise the option.

LAND~.t}RD FIXTURES }AND EQUIPMENT

ART. 33. Exhibit "C", attached hereto, contains a complete list of ail

fixtures and equipment that are the Sole property of the Landlord and sFialt die left

for Tenant's use during the term of this tease. Atl items are delivered in "as is"

condition without warranty from E.andlord and are accepted and received by

Tenant in that condition and shat! be returned to Landlord in good working order

upon lease termination. Tenant shall be iespanstble f~F alt equipment

maintenance during the tettn of this tease.

!N WITNESS WHEREOF, xhe Landlord and Tenant have duly executed

and affuced their respective seals to this sublease on the day and year first

abase-written.

AMF B~WLfNG ER , !N .

BY:

_ r--

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STATE OF l ~'~I' /~ S

CITY/COUNTY QF rC~.Q ~~, s

On the ~~Ic~ay of r ~ 20Q5, before me a Nata~ry Pubtic in and

fart a r~saidjurisdiction, the undersigned officer, personally appeared

~ --~~.~~ .~.QGt,. ~ t~rho

ack owlsdg~d himself to be the~~c,.e~ rjr1.~~~~ of Metropali$, Inc„ a

~c'r.~ ca~poration~ and that he as such officer, being authorized to do

soy executed ~f~te foregoing tns#rvment for the purposes therein contained by

signing fhe name of the aacpora~ian try himself as ~,~,P.c~si~.Q.v 7~"'

In witness whereof, t hereunto set my hand and official seal.

'\

My commission expires: ~%-30-- D

STATE ~F VlRG1NlA

Public eaoaae~e¢ri

CARMEN D. Yl~Rq

~~~

~ My Comm. ~, oq.90.2009

COUNTY QF HANOVER

On the ,~ day of ~5~, 2005, b~fot~e me a Notary Public in and

for tha aforesaid ~uEisdiction, the undersigned officer personally appeared Mark

S. Katcher, who acEcr~owledged himself to be the Vice President of Reai estate of

AMF Bowling Cer►ters, lnc., a Virginia cocporatfon, and that he as such officer,

being authorized to do sa, executed the faregatng Instrument far the purposes

therein cortitained by signing the name of the corporatlon by himself as Vice

President ~f Real Estate.

En witness whes~~f, t h~r~unto set my hand and ificiai seal.

Notary Public

My commtss~on' expires: y~1~ a j 4to

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EXHI~1~' "C"

LANDLORD; AMF BOWLING CENTERS, INC.

TENANT: ~ JYE YMAS, LlC

L4CATi4l~: 13307-A SAN P~DRO AVE,

SAN ANTQNlO, TEXAS

LANDLORD FIXTURES AND EQUIPMENT: '

1. Apprax. 6' x 12' combination walk-in freezer/refrigerator,

2, E.arge kitchen venk hood with ANSUl. SYSTEM,

3. Fifty {50) gallon elec~ic hot water heater.

#562724 v2 015632029Z7

f~ ~

66
APPENDIX G
. ~ ~

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~tTIIL~~E ~.GY~ ~'1~f~iT

This SUBLE~~E AGREEMENT (this "Sublease") is eczt~red into on March 6, 2007 (the

`-`Effective Date"~, by and between Metropolis, inc., a Texas corporation whose address is 16

Carriage Hii~s~ San Antonio, Texas 7825'1("Sublessor"), and R.io Ventures, Ltd, a Texas limited

partnersk~.ip whose address is 1406 Peacock Haven, Juan ~lntdnio, Texas 7$256 ("Sublessee' . ~ '

l.. Demise and Description of Fro~erty:

Sublessor iesses to Sublessee, and Sublessee leases from Sublessee, the premises the

"Subleased Premises'•' or the "Premises") located at 13307 San Pedro Avenue, Suite A, Ban

Antonia, Bexar Count, Texas 7$216.

2. Terre:

The term aF this Sublease {the "Sublease Term's shatl~-commence=on February ]~, 200~'t

{the "Sublease Com,rciencement Date',• andi c nd on: May 3 k, 2a14~(the "Sublease Terminstio~

'D~tte'~, But ttus~Subleesc will terminate earlier .in the event of a tarminatian of the Sublease ~.

Agreement dated October 14, 2005 (the "Base Lease"), beEween AMF Bowting Centers, Inc., a

• Delaware earparadon; as Landlord, and Sublessor, as Tenant, leasing~the Premises.

`~ 3. Rest:

During the term of this Sublease, Sublessee will pay Sublessor the same montl~y rental

for the Premises provided In the Main Lease, glue the sum of Two Thousand and No/tQO Dollars '

t~,aoo:ao).~

4. Use of Premises:

• Sublessee wills use the Premises only for the use permitted under the Base Lease (the

"Permitted Sublease Use"~. '

•~~5. Assumpi~on Agreement ~ercd Covenants:

(a) Sublessee wil! carn~iy with t►11 of the provisions Qf the Bass Lease that are to be

performed by the Sublessor as Tenant during the term of this Sublease.

(b) If the Base Lease is canceled or terminated before its expiration date and before

the expiration date and before the expiration date of this• Sublease or any extensions and

renewals, ar if the Base Leese is surrendered, whether voluntarily, involuntarily, or by operation

of Iaw, Sublessee will make full attornment to the Landlord for the balance of the term of #his

Sublease, including asiy extensions and renewals, based on the sazne c.~venants and conditions of

this Sublease, so as to establish fl'srect privity of estafe end contract between the Landtor8 and

Sublessee, with the same force as though this Sublease was atlginally mach directly from the

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Landlord to ~t~lessee. Landlord wilt tnen ber,~~~ ~~ i.€ssdieu~ r~uad~r this vdablea~.

(c) The provisions of the Base Lease, to the exfent that they de not conf`fict with

specific provisions of this Sublease, are fuily incorporated into this Sublease. Sublessee a~`ees

to he bound to Sublessor by the Bass Lease axtd to assume toward Subiessar the same role and

perForm all of the obligations and responsibilities that Sublessor by the Base Lease assumes

toward Landlord. The relationship between Sublessee and Sublessor under this Sublease is the

same as that between Sublessor and Lancilorcl under the Base Lease,

6. Sublessee agraes to:

(a) Sublease the Subleased Premises far the Sublease Tenn heginr►ing on the Sublease

Commencement Dace and endit~ on the sublease Teninination Date.

(b) Pay the Sublease Rent to'Sublessor in edvance ofthe first {I~ day of each month.

(c) Vacate the Subleased Premsses and return all keys to fhe Subleased Premises on the

tecmin~tibn oFthis Sublease.

(d) Indemnify, defend, and hoid Sublessor harmless from and against any toss,

reasonable attorney's fees, court and other costs, ar claims arising out of use of the Subleased

Premises or res~l~ng from Sublessees failure to comply with the Hale Lease.

(e} Maintain public IiabilIty insurance, with Sublessor named as an additions! insured,

in the amounts ark for the parposes sorted in the Base Lease. ',

(fl Deliver certificates of insurance to Sublessor before the Sublease Commencement

Date and thereafter on an annual basis.

'1. Sublessee agrees uat fa:

(a) Use the Sabieased Premises Por any purpose other than the Permitted Sublease Use.

lv~ L`CC3~.R.niticanrp,ti

(e) Interfere with any other tenant`s normal business operations or Landlord's

management of the bviidin~ where the'Premises ate located.

(cn Permit any waste.

(e)- Use the Subleased Premises in any way that is exhshazardous, would increase

insurance premiums, or would void insurance on Ehe build'u~ where the Premises are located.

(fl Allow a lien to be placed on the SubSessed Premises. - ..

2

74
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~.

$. $eebless~►p a~r~s ~c~

(a) Permit and authorize Sublessee to assign this Sublease or sublease any portion of the

Subleased Premises in secordance with the terms of Article 11 of the Sese I.eAse, provided

Sublessee is nat in default on any of the ternzs and condirions of this Subiesse beyond any cure

period and so long es the entire unpaid principal balance of the Promissory Note of even date

hereof in the principal sum of Qne ~-luncfred'Seventy Five and Na(140 Dollars ($175,004.40)

between Sublessor, as payee, and Sublessee, es maker, is paid in full.

{b) Subleass the Subleased Premises to Sublessee For the Sublease Term.

(e) Comply with Tenant's dbligadans under the Base Tease.

(~ Enfoc~e Landlord's oblig,~tions under fhe Base Lease.

{e) Ivlake available to the Sublease Premises ail services and rights provided under fhe

Base Lease.

Q. Sublessor and Sublessee agree to the faUawing:

(a) Defaults by Sublessee are (i) fail4n~ to pay timely the Sublease Rend (ii) abandoning

or.vacating a substantial gartion of the Subleased Premises, and (iii) failing to comp3y within Thirty

(3~) days Biter written notice with any ma#eriril provision of tine Base Lease or Sublease other flan

the defaults set forth in (i) or (ii) above.

(b) Sublessors remedies for Sublessee's default are to ~) entex and take possession of

the Subleased Premises, after which Sublessor may relet fihe Subleased Premises on behalf of

Sublessee and receive the Sublease Rent directly by reason of the relenting, and Sublessee agrees to

reimburse Sublessor for any reasonable expendiducs made in order to rele~ (ii} enter the Subleased

Premises and perform Sublessee's obligations; and (iii) temunate this Sublease by written notice

and sue for cliamages.

(c) Sublessee's remedy for Subtessor's default is to sue for damages.

(d) 'Phis Sublease is subordinate to the Base Lease, a copy of which Sublessee.

acknowledges as received.

(e) Sublessor znay retain, des~t~oy, or dispose of ~y property left in the Subleased

Premises after the expiration oEthirty (30) days of the end of the Sublease Temt.

(fl Sublessor has Alt the ri~Iits of Landlord under the Base Lease as to Sublessee,_

(~ If either pazty retains ~n aftomey to enforce this Sublease, the party prevailing in

li~i~ation is entitled w recAver reasonable artornsy's fees and court and other costs.

3

75
/"`~ ~"`~ a

V

4U. ]3ase ~~t .~~s~.s4~n~n~. P~trst~:ni to th e Base Lase.

Il. Advcrfisarnenf ofPremeses. During the last Ehirey (30) days of the Sublease Term,

Sublessor may glace a sign an the Premises advet~ising the Premises far rent or sale,

f2. Renewal Dpfion. Provided Suf~lessee is not in default an sny o~ the terms and

ennditions of this Sublease beyond any cure period, Sublessee shall notify Sublessor in wtitu~ no

later than seven {'T) months prior to the expiration of dze than present lease temp under the Base

Lease of Sublessee's desit~ to gave Sublessor exercise the renewal option granted under Article 32

of the Base Lease, and Sublessor shall be required to exercise such option, and Che Sublease shall

continue in fu11 farce and affect far the term.of the renewal option.

13. Asbestos. Buildings or struatttres located on fhe Premises may contain asbestos-containing

rnatariai or pres~uned asbestos-containing material as defined by aSHA regulations. Sublessee has

inspected the Premises and conducted such tests attd inspccHons as Sublessee dc~ms necessary or

desirable. Sublessee will provide Sublessor wifh copies of all such test results and insgec6ons.

S~cblessee wilt comply with all toles and regula4aas relating to asbestos in performing any

maintenance, housekeeping, consEruction, renovation, or remadeIiug oFtE'ie Premises, and Sublessee

wilj bear al} et~sts related to removal and disposal of asbestos from the k~remises, only and so long

as such asbestos were directly and solely installed by Sublessee.

14, -Security Dcposi~ Sublessee hereby agrees to pay to Sub}essor a S'ecurity'D~osi~ in the

amount of Ten Thousand and Noll d0 Dollars -~($~1:0;000:00}; which shall he subject to and

governed by the terms sod conditions of Article 31 of the Base Lease.

I5. Furniture and Fixtures. Ati furniizue and fixtures and equipment placed in the'

Premise$ by Sublessee will remain Subiessess's property, subject to Sublessor's rights as

provided by law. Sublessee may, when this Sublease expires, remove the furniture and fixtures if

removal is dor►e so es not to damage the Premises,

16. Texas Law Ta• Agply. This Sublease v►711 be consErued tender Texas law, and a!I

obligations of the parties are performable in Bexar County, Texas.

17. PxrEies Board. This Suhlcase will bind find inure To the benefit of the parties hereto ar~d

their respective heirs, executors, administrators, legal representatives, suece~sors, and assigns

except as this Sublease otherwise sgeciftes.

1.~. Legal C~usta~uetioax~ IE any one or more of the provisions of this Sublease is for any

reason held invalid, illegal, or unenforceable in any respects that invaliflity, illegality, or

unenforceability will nvt aFFect any other provision of this sublease, which wiI! be construed as if

it trod never included the invalid, illegal, or unenforceable provision.

19. Prior Agreements Superseded, This Sublease cor:stitutes the sole sgreeament of the

parties hereto and supersedes any prior understandings ar written ar oral agreements Isefweea the

parties hereto resgecti~,g the subject matter.

-° Q
4 •~

t~ y ~

~fl. i~3atice. Unless this Su~iI~s°~ ~:~vides otherwise, any tsotics, tender, Qr ~eliv~cy ~9

be given by either parry to the other may be erected by personal det4very In wcYting or by

registered or certified mail, postage grepaid, retiun mceipt requested, and wi!! be considered

recefved as of the actual mailing.

21. Capitalized Terms. All capitalized teens not defined in dus Sublease shall have Ehe

meaning assigned to them in Efie Bassi Lease.

[SIGNA'TURES QTI THE N EXT PAGE)

`;\

5

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77
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~h ~~~'Id~s ~YYl~~~4i~, the parties hereto have ~~al~ ~xe~~~ this Sable ~-s ~£ i~a~

Effec~iva Date.

SUBLESSOR:

fay:

x7 V i~f_rc'+~T <

RIO VENTURES, LTD.

By: Rio Club, LL Genen3I Partner

Hy;

Name. ~~tcr~ ~Uc~

Title:
APPENDIX H
CAUSE NU. ZOY4-CI-19987

/'R~

AMF Bt~VVL~1V~ C~~i'I ~~, ~E., ~ ~t 1 ~fL ~YS t""Ft"1~ i ~t"3,'i3R~'Y'

Plaintiff, § .

y, ~ 408 JUDICIAL DISTRICT

METROPOLIS, INC., §

RIO VENTURES, LTD., §

and 1~lIO G~,~, G.L,C., $

Defendants. ~ BEXAR CUUNTY, TEXAS

URI3EA GRANTING

METRUPOLiS N:CGHTC~..UBS i, LP'S MOTION FOR

PARTIAL SUMMARY JUDGMENT AND DECLARA'['l~t~Y ItELIF,~

'~UtJ~

On Tua¢ b ,X2015, Metropolis iYightclubs t, ~.P presented it Morton for Psrtial Summary

Judgment and Declaratory Relief (the "Niation") t~ the court. Upon due consideration of the

Motion, the evidence presented at the hearing, the applicable legal authorities, and the arguments

of counsel, the Court ffnds that the reli~frequested should be GRANTED.

IT IS TFIEREFC7RE, ORDEIt~t~ that

(a) Metropolis Nightclubs 1, L.P'. is the proper name df the tenant to the Lease for the

Premises with AMF Bowling Centers, Inc. dated October 14, 2005;

(b} Metropolis Nightclubs I, I.,P. is the proper name of the subl~sar for the Premises to

the Sublease with Rio Ventures, Ltd. dated March 6, 2Q07;

(c} Metropolis Nightclubs I, L.P. is the proper name of the tenant far the Premises to tl~~

Metropolis Extension with AMF Bowling Centers, lr~c. dated Apri130, 2014;

(d} McUropolis Nightclubs I, L' .P, is the proper name of ttce sublessor for the Premises to

the Rio Ventures Extension with Ria Ventures, Ltd. dated April 30, 2014;

EXHIBIT

5

5!£:aEgd T9RZZBF~o,L 963 42Ei5E£!~TZ ~~a =~T~~3 ~S~wos3 OTBO StOZ-DI-'Iftt
~"ti ~1

{e) The misnomer of Metropolis Ni~htelubs f, L.P. on the Lease, Sublease Metropolis

Extension, and Rio Ventures Extetisian does not impact the validity or enforceability

of the Lease, Su?dlease, Metropolis Extension, and Rio Ventures Extension;

(f} The Agreed Final Judgnent entered in AMF Bawling Centers, Inc. v. Metropatis,

Ina, Case No, 2Q15-01439, 190 'Judicial District Court, Hams County, Texas does

not have any impactor effect on the rights of Metmpalis ~d Club Rio to the ~'r~mises;

and

(g) ogolig N telub L.P. be~twarded ids reasonable an hecesa atty y's ens

top t this Orion, be ted h fu rand ther re ' f to

Metropolis ightclub , L.P. m y be ju entitl t law~in '#y.

~.

a~ a~ ~ ~-.

~~

DGE P SIDING

~,1~:sBe~ 

iq?IZZ86~❑,L J64 GtEtSE~iZ ~sno;, ~~rr~stQ y~gvvros3 areo ~o~-a~-znr
APPENDI~~ I
/~

cor~or~uo~s seCuon .~E o Carlos H. Cascos

P,O.Bo~ 13697 ~,`~~ Fl, Secretary of State

Austin, Texas 78711-3697 W X

Y ~ in

Viir~e or ine ~ecreia.ry of mate

Certificate of Fact

The undersigned, as Secretary of State of Texas, does hereby certify that the document, Articles of

Incorporation for Metropolis Nightclubs, Inc. (file number 800563621), a Domestic For-Profit

Corporation, ~uvas filed in this office on October 27, 2005.

It is further certified that the entity status in Texas is in existence.

In testunony whereof, Y have hereunto signed my name

officially and caused to be impressed hereon the Seal of

State at my office in Austin, Texas on June 03, 2015.

.I

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~~~

~~~~ ~~~' ~(~~j

.•a►~ 1~~ A~~~/

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C31'~OS H. Ca5C05

Secretary of State

Core visit us on the inlernet at http:/hv►v~N.sos.slate. tx. us/

Phone: (512) 463-5555 Fax: (S 12) 463-5709 Dial: 7-1-1 For Relay Services

Prepared by: SOS-VJEB TID:10264 Document: 609656090003

~"

730
G■1 G.1

c~or~orarions s~tion ~~~ ~ o~ Carlos H. Cascos

P.O,Ba113697 ~, ~, Secretary of State

Austin, Texas 7R711-3697 W

x

U~~ce of tie Secretary of State

Certificate of Fact

The undersigned, as Secretary of State of Texas, does hereby certify that the document, Certificate of

Limited Partnership for Metropolis Nightclubs I, L.P. (file number 800563626), a Domestic Limited

Partnership (LP}, was f led in this office on Oceober 27, 2045.

It is further certified that the entity status in Texas is in existence.

In testimony whereof, I have hereunto signed my name

officially and caused to be impressed hereon the Seal of

State at my office in Austin, Texas on June 03, 2015.

A~_'aei ~ ~j`

~ ~~ wj

~}~~ ~~~~ ~~j~~ -~ rQ % \ ~~

rk•~~~~ /~~rl C2.r10S H, CaSCOS

Secretary of State

Conre ~~islt us on fhe Internet at http:/hrtiv~v.sos.state.lx us/

Phone: (512) 463-5555 Fax: (S 1Z) 463-5709 Dial: 7-1-1 for Retay Services

Prepared b~ SpS-WEB 'TID: 10264 Document 609656090003

731