Exhibit 10.21
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LEASE AGREEMENT
With Purchase Option
This LEASE AGREEMENT (this "Lease") made and entered into this 12th day
of July, 2005 ("Effective Date") by and between MYER DEVELOPMENT CO., a Missouri
corporation ("Landlord"), and BRANSON RESTAURANTS, INC., a Missouri corporation
("Tenant").
In consideration of the terms, covenants, and conditions herein
contained, Landlord and Tenant covenant and agree as follows:
Article 1
DEFINITIONS
Whenever capitalized in this Lease, each of the following terms shall
have the meaning given in this Article, unless otherwise specified in this Lease
or unless the context clearly indicates a contrary intent. Certain additional
defined terms may be set forth elsewhere in this Lease.
1.1. "Additional Rent": all amounts other than Percentage Rent and
Minimum Rent which Tenant is required to pay under this Lease, including,
without limitation, all utilities, insurance, taxes and maintenance charges, if
any, and other payments which Tenant in any of the provisions of this Lease
assumes, agrees or otherwise becomes obligated to pay (or reimburse Landlord on
demand for any payments thereof made by Landlord).
1.2. "Commencement Date": July 12, 2005.
1.3. "Default Rate": an interest rate equal to eighteen percent (18%)
per annum.
1.4. "Extension Option": any option granted to Tenant under Section
2.2, below, to extend the Term.
1.5. "Hotel": the Hotel near the Premises owned and operated as of the
Commencement Date by Landlord, known as the Best Western Center Pointe Inn.
1.6. "Land": the land located in the City of Branson, Taney County,
Missouri, as generally outlined on Exhibit A, attached hereto and incorporated
herein by reference. The boundaries of the Land will include the footprint of
the Restaurant Building, the landscaped areas immediately adjacent thereto and
the area surrounding the existing dumpsters serving the Restaurant Building.
However, for purposes of the Option described in Article 15, below, the
boundaries of the Land will be the platted boundaries thereof as approved by the
City of Branson pursuant to the Option procedures described in such Article.
1.7. "Laws": all laws, regulations, rules, ordinances and orders of any
governmental authority, including by way of illustration and not limitation
statutes, zoning ordinances, building codes, common law and rulings, decisions
and interpretations of all judicial, quasi-judicial and administrative bodies.
1.8. "Lease Year": The first Lease Year will be the period beginning on
the Commencement Date and ending December 31, 2005. Each subsequent Lease Year
will be a period of twelve successive calendar months beginning on January 1 and
ending on December 31.
1.9. "Minimum Rent": the Minimum Rent for the Premises as set forth in
Paragraph 2.6, below.
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1.10. "Percentage Rent": the percentage rent based on gross receipts
from use of the Premises as set forth in Paragraph 2.3, below.
1.11. "Premises": the Land, together with the Restaurant Building and
any easements and other appurtenances thereto. The Premises are commonly known
as and have a street address of 0000 X. Xxxxxxx 00, Xxxxxxx, Xxxxxxxx.
1.12. "Restaurant Building": the 8,000 +1- square foot restaurant
building constructed on the Land.
1.13. "Term": the initial term of ten (10) Lease Years, beginning on
the Commencement Date and continuing until December 31, 2014, provided, however,
that the Term shall in addition include any number of Lease Years for which this
Lease is validly extended under an applicable Extension Option.
Article 2
LEASE, EXTENSIONS, RENT
2.1. Lease. Landlord leases the Premises to Tenant and Tenant accepts
and leases the same from Landlord, at the rental and on the terms and conditions
of this Lease, for the Term.
2.2. Options to Extend. Tenant is hereby granted two (2) successive
options to extend the Term for additional periods of five (5) Lease Years each
(each, an "Extension Term"), provided Tenant gives Landlord written notice of
Tenant's election to exercise such option at least ninety (90) days prior to the
end of the then expiring Term, and, provided Tenant is not then in default under
this Lease. All of the terms and conditions of this Lease in effect as of the
exercise of an option to extend shall apply to the Extension Term.
2.3. Percentage Rent. Tenant covenants and agrees to pay to Landlord as
Percentage Rent for the Premises, for each Lease Year, a sum equal to seven and
one-half percent (7.5%) of the first $2,000,000 of Tenant's Gross Receipts and
five percent (5%) of Tenant's Gross Receipts in excess of $2,000,000 for such
Lease Year.
2.4. "Gross Receipts" Defined. The term "Gross Receipts" means: (i) the
entire amount of the price charged, whether wholly or partially in cash or on
credit, or otherwise, without reserve or deduction for uncollected amounts, for
all food, beverages, goods, wares, and merchandise sold, leased, licensed or
delivered, in, at, upon or from any part of or through the use of the Premises
or any part thereof by Tenant and any other person, firm or corporation; (ii)
receipts from all orders secured or received in the Premises by telephone, mail,
or otherwise which Tenant, in the normal and customary course of its operations,
would credit or attribute to its business in the Premises; (iii) deposits
received and not refunded to the purchaser in connection with any transaction;
and (iv) all gross income of Tenant and any other person, firm or corporation
from any operations in, at, upon or from the Premises which are neither included
in nor excluded from Gross Receipts by other provisions of this Lease, but
without any duplication.
(a) Gross Receipts shall not include, or if included, there shall be
deducted (but only to the extent they have been included), as the case
may be, (I) the net amount of cash or credit refunds made upon Gross
Receipts, where the merchandise sold or some part of it is returned by
the purchaser to and accepted by Tenant (but not exceeding in any
instance the selling price of the item in question); (ii) the amount of
any sales tax, use tax or retail excise tax which is imposed by any
duly constituted governmental authority directly on sales and which is
both added to the selling price (or absorbed therein) and is paid to
the taxing authority by Tenant (but not any vendor of Tenant); (iii)
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returns of merchandise to shippers, suppliers or manufacturers; (iv)
the sale of any trade fixtures which Tenant is permitted to remove
pursuant to other provisions of this Lease; and (v) any tips or
gratuities paid by Tenant's customers to or for the benefit of
Restaurant staff. No franchise or capital stock tax, and no income or
similar tax based upon income or profits as such, and no personal
property tax, shall be deducted from Gross Receipts.
(b) If Tenant's Gross Receipts (as herein defined) are required to be
reported on any governmental tax or other return, and Gross Receipts as
so reported on any return or as determined by audit thereof shall
exceed Gross Receipts as reported to Landlord hereunder, then the Gross
Receipts shall, for the purpose of this Lease, be deemed to be the
highest amount so reported or so determined by audit.
2.5. Payment of Percentage Rent. Percentage Rent shall be determined
and paid monthly during the Term. An installment of Percentage Rent, based on
the Gross Receipts for the previous calendar month, shall be due and payable on
or before the fifth (5th) business day of the following calendar month during
the Term.
2.6. Minimum Rent. On or before the tenth (10th) business day following
the end of any Lease Year, Tenant will pay to Landlord the amount, if any, by
which the Minimum Rent for such Lease Year exceeds the Percentage Rent paid for
the same Lease Year. The Minimum Rent for the first two calendar months of the
Term will be Zero Dollars ($0.00). For the remainder of the first Lease Year,
the Minimum Rent will accrue to the end of such Lease Year at the rate of Seven
Thousand Five Hundred Dollars ($7,500.00) per month. After the first Lease Year,
the Minimum Rent will be annualized at the amount of Ninety Thousand Dollars
($90,000.00) per Lease Year, adjusted as follows:
(a) As used herein, the term "Index" means the Consumer Price Index,
U.S. City Average for All Items for All Urban Consumers (1984 = 100),
published by the Bureau of Labor Statistics of the United States
Department of Labor. If the Index shall be discontinued with no
successor or comparable successor index, the parties shall attempt to
agree on a substitute formula, but if the parties are unable to agree
on a substitute formula, then the matter shall be submitted to
arbitration in accordance with the rules of the American Arbitration
Association then prevailing.
(b) "Adjustment Date" means the first day of each Lease Year after the
first Lease Year.
(c) "Base Index" means the Index in effect on the Commencement Date.
(d) On each Adjustment Date, an inflation-adjusted minimum will be
calculated by multiplying Ninety Thousand Dollars ($90,000.00) by a
fraction, the numerator of which shall be the Index in effect on the
Adjustment Date, and the denominator of which shall be the Base Index.
If the inflation-adjusted minimum so determined is greater than the
Minimum Rent then in effect, the Minimum Rent shall be increased to
equal such inflation-adjusted rent, and if the inflation-adjusted
minimum is less than or equal to the Minimum Rent then in effect, there
will be no adjustment to the Minimum Rent. The Minimum Rent so
determined shall remain in effect until the next Adjustment Date.
2.7. Terms of Payment. All payments of Percentage Rent, Minimum Rent
and Additional Rent shall be paid in good funds, in lawful money of the United
States of America, and shall be delivered to Landlord on or before the due date
at the Landlord's address as set forth in the notice section of this Lease (or
at such other place as Landlord may from time to time designate by notice in
writing). All such amounts shall be timely paid without notice or demand and
without abatement, set-off, counterclaim, deferment, diminution or reduction. If
Tenant fails to pay any amount when due, such amount shall bear interest at the
Default Rate until paid in full. In addition, at Landlord's option and upon
demand, Tenant shall pay to Landlord a late charge equal to three percent (3%)
of the total amount delinquent, which amount Landlord and Tenant agree
approximates Landlord's additional expenses which will be incurred by Landlord
in handling such a delinquency.
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2.8. Tenant's Records. Tenant agrees to prepare true and complete
records and accounts of all Gross Receipts for each month of each Lease Year in
accordance with generally accepted accounting principles consistently followed.
Such records and accounts shall include all daily sales reports, cash register
tapes, bank statements or duplicate deposit slips, and such other sales records
as an independent certified public accountant would need to examine in order to
certify Tenant's statements of Gross Receipts pursuant to generally accepted
auditing standards. Such records and accounts for any Lease Year shall be
maintained at the Premises or at Tenant's main or accounting office for a period
of twenty- four months after the end of each Lease Year. Landlord and its
representatives shall have the right, at reasonable intervals, upon ten days'
prior written notice, to examine such records and accounts. Tenant shall also
retain copies of all its sales and use tax returns covering its operations in
the Premises, and any other governmental tax or other return which shows
Tenant's sales therein (other than a return which shows the combined sales from
the Premises and other premises), and shall upon demand deliver a true
photographic copy thereof to Landlord.
2.9. Reports by Tenant.
(a) Tenant agrees to deliver to Landlord within seven days after the
end of each calendar month during the Term a written statement signed
by a fiscal officer of Tenant or by the manager of Tenant's business in
the Premises, showing in reasonably accurate detail the Gross Receipts
for the preceding calendar month (including in its first report the
amount of Gross Receipts for the fractional month, if any, preceding
the commencement of the first Lease Year), together with payment of
Percentage Rent. Landlord may provide and require a form of such
statement for Tenant's use.
(b) Tenant agrees to deliver to Landlord within sixty (60) days after
the end of each Lease Year (and the Term) a written statement showing
in reasonably accurate detail the amount of Gross Receipts during the
preceding Lease Year and itemizing all deductions and exclusions
therefrom, which written statement shall be duly certified by an
officer of Tenant. Landlord may provide and require a form of such
statement for Tenant's use. If such statement shows that Tenant has
under paid Percentage Rent and/or Minimum Rent for the prior Lease
Year, Tenant will pay to Landlord, at the time such statement is
delivered, the amount of such underpayment. If such statement shows
that tenant has over paid Percentage Rent and/or Minimum Rent for the
prior Lease Year, Landlord will pay to Tenant, within ten (10) business
days after receipt of the statement, the amount of such overpayment.
(c) All such statements shall be delivered to the place where rent is
then payable, or at such other place or places as Landlord may from
time to time direct by written notice to Tenant.
(d) If Tenant fails to deliver to Landlord any statement or report
required herein, then Tenant, in recognition of the difficulty or
impossibility of determining Landlord's damages and not as a penalty
and in addition to the rent and other charges payable under this Lease,
shall pay a charge of Twenty Dollars ($20.00) for each day beyond the
last date on which the statement or report was due to be delivered to
Landlord, which separate charge of $20.00 per day shall continue to be
due and payable for each day which occurs until the statement or report
is delivered to Landlord. Regardless of the foregoing, nothing herein
contained shall be deemed to limit any other remedy available to
Landlord or in any way prevent Landlord from declaring Tenant in
default under this Lease for failure to have delivered any such
statement or report to Landlord within the time limits set forth above.
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2.10. Right to Examine Books and Audit. The acceptance by Landlord of
Percentage Rent shall be without prejudice to Landlord's right to examine
Tenant's books and records of its Gross Receipts. Landlord may at any time, upon
ten days prior written notice to Tenant, cause an audit to be made by Landlord's
accountants of Tenant's books and records relating to its Gross Receipts for any
period covered by any statement issued by Tenant, provided that such audit must
be requested by Landlord prior to two (2) years after the end of such period.
Such books and records shall be made available for examination by Landlord's
accountants at the Premises. If the audit discloses that Tenant has understated
Gross Receipts by any amount, then the additional Percentage Rent shall be paid
immediately, by Tenant, together with interest thereon at the Default Rate. If
the audit discloses that Tenant has understated Gross Receipts by more than two
percent (2%) for such period, Tenant shall, upon demand, pay to Landlord the
cost of such audit. If Landlord's accountants, after examining such records and
accounts as Tenant makes available to them, are unable to verify the Gross
Receipts for such period by reason of Tenant's failure to prepare, keep or make
available the same in the manner required, then Tenant shall, upon demand, and
without impairing Landlord's other remedies, pay the cost of such audit. No
information obtained by Landlord as a result of such audit, and no information
contained in any report made by Tenant, shall be made public by Landlord except
in connection with the enforcement of Landlord's rights under this Lease. The
foregoing shall not be construed, however, to prohibit Landlord from disclosing
such information to any taxing or other governmental entity with authority to
inquire therein, to the holder or prospective holder of any mortgage or deed of
trust affecting the Premises, to any bona fide prospective purchaser of the
Premises or to underwriters, brokers, investment bankers or potential or current
lenders.
2.11. Hotel Advertising in IMAX Complex. As additional consideration
for this Lease, Tenant hereby agrees, for itself and its parent corporation,
ITEC ATTRACTIONS, INC., a Nevada corporation ("ITEC"), that Landlord and
Landlord's affiliated companies will have the exclusive right to advertise their
Branson-area hotels in the IMAX Theater complex (the "IMAX Complex") owned and
operated by ITEC, located at 3562 Shepherd of the Hills Expressway, Branson,
Missouri. During the Term, ITEC will permit Landlord and Landlord's affiliated
companies to maintain advertising for their hotels in the IMAX Complex in the
following general ways:
(a) Inside Front Door- signage and display. Monthly value = $125.00.
(b) Brochures at the IMAX ticket booth. Monthly value = $50.00.
(c) Brochures and maps at the IMAX concession stand. Monthly value $33.30.
(d) Poster display where people wait for IMAX films. Monthly value = $83.30.
(e) Inside Backdoor wall signage. Monthly value = $33.30.
(f) Advertising on IMAX big screen before movies. Monthly value = $258.30.
(g) Advertising on Elite Cinema screens before movies. Monthly value
= $200.00.
(h) Advertising at tables of Restaurant. (currently Mcfarlains). Monthly
value = $50.00.
(i) Any other opportunity that is mutually agreed upon.
All costs of producing and/or printing such advertising will be at
Landlord's cost and expense, and the form of all advertising must be submitted
to and approved by ITEC prior to being placed in the IMAX Complex. ITEC will not
unreasonably withhold approval of advertising.
Neither Tenant, ITEC nor any other owner of the IMAX Complex will place
or permit any advertising to be placed in the IMAX Complex for any Branson-area
hotels other than those owned and operated by Landlord and Landlord's affiliated
companies.
If the owner of the IMAX Complex violates this covenant or fails to
permit Landlord to advertise as provided in this Section, Tenant will pay to
Landlord a monthly Compensation Fee, due concurrently with payments of
Percentage Rent, for each month during the Term that advertising an item in this
section as defined above in the IMAX complex is not permitted. The Compensation
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Fee will be an amount per month equal to the monthly value as defined in this
section for each disallowed item times a fraction, the numerator of which will
be the Index in effect as of January 1 of the then-current Lease Year and the
denominator of which will be the Base Index.
Article 3
USE, COMPLIANCE WITH LAW
3.1. Use of Premises By Tenant. Tenant will use the Premises solely for
the purpose of operating a Montana Mike's restaurant, or any comparable
restaurant format approved by Landlord. Tenant will not perform any acts or
carry on any practices which may injure the Premises or be a nuisance or menace.
3.2. Covenant of Continuous Operation. Tenant will keep such business
open on the Premises on every day on which the Hotel is open for business,
serving three meals a day and maintaining regular business hours during the Term
consistent with similar restaurants in Branson, Missouri, subject to temporary
closures for alteration or repair as otherwise permitted hereunder.
Notwithstanding the foregoing, Tenant will be released from the further
obligation of maintaining daily breakfast service, if, as of the end of any full
calendar year during the Term beginning with 2006, Tenant's Gross Receipts
attributable to serving breakfast at the Restaurant average less than $800 per
day for the three (3) busiest consecutive calendar months (for breakfast) during
such year.
3.3. Exclusive Ticket Sales and Hotel Advertising. During the Term,
Tenant will not advertise, promote or maintain promotional materials on the
Premises for any Branson-area hotels other than those owned by Landlord and its
affiliated companies. During the Term, Tenant will not give away or sell on the
Premises tickets to shows or other Branson-area attractions, nor will Tenant
allow any person or agent other than Landlord or one of its affiliated companies
to engage in such ticket sales or giveaways on the Premises.
3.4. Take-Out Service Provided to Hotel Customers. During the Term,
Tenant will offer and provide take-out service to guests of the Hotel. The
prices and menu items offered by Tenant will be determined by Tenant, but will
be commensurate with take-out service offered by restaurants to hotels located
in Branson, Missouri. Tenant will permit the guests of the Hotel to charge all
food to their Hotel xxxx. The owner of the Hotel will remit to Tenant, within
five (5) business days after the end of each calendar month, all monies
collected from Hotel guests for take-out service items provided by Tenant,
subject to withholding by Landlord of a reasonable credit card charge, currently
3% of purchases. An extension from the Hotel telephone system will be provided
to the Restaurant Building.
3.5. Advertising for Restaurant in Hotel. During the Term, the owner of
the Hotel will permit Tenant to display advertising for Tenant's restaurant in
the rooms, elevator, breakfast area and at the front desk of the Hotel. Landlord
will also permit Tenant to advertise Tenant's restaurant by placement of
advertising materials in the breakfast areas and front desks of other
Branson-area hotels owned and operated by Landlord and Landlord's affiliated
companies. Landlord will also make the best effort to include the Restaurant in
in-room advertising of all other Branson-area hotels owned and operated by
Landlord and Landlord's affiliated companies. All advertising material placed
under this provision in the Hotel and in other hotels owned by Landlord must be
approved in advance by Landlord and produced at Tenant's sole cost and expense.
3.6. Tenant's Compliance with Law. Tenant will, at Tenant's expense,
comply with any and all Laws pertaining to the use and occupancy of the
Premises. In the furtherance of, and not in limitation of, Tenant's obligations
under the foregoing sentence throughout the Term, Tenant will do or cause to be
done all things necessary to preserve and keep in full force and effect permits
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required for the conduct of its business and operations from the Commencement
Date until the end of the Term. In addition, Tenant will comply with the terms
of all easements, covenants and conditions affecting the use and occupancy of
the Premises, including any reciprocal parking and driveway agreements relating
to adjacent parking.
3.7. Prohibition against Certain Uses. Without limiting any of the
foregoing, Tenant covenants that it will not conduct or permit on the Premises
any lotto, video poker, keno, or any other gambling or game of chance.
Article 4
REPAIRS, MAINTENANCE AND ALTERATIONS
4.1. Initial Condition of Premises. Tenant represents and warrants to
and covenants and agrees with Landlord that Tenant has thoroughly, completely
and carefully inspected the Premises, and Tenant is fully familiar with the
physical condition and all other aspects of the same. Except as specifically set
forth in this Lease, Landlord has made no representations or agreements as to
the condition of the Premises or their fitness or availability for any
particular use, and Tenant is accepting the Premises in their "AS IS" condition.
4.2. Condition of Mechanical Systems. Not-withstanding the foregoing,
Landlord represents that, as of the Commencement Date, the major components of
HVAC, plumbing, electrical and other mechanical systems of the Restaurant
Building are in reasonably good working condition.
4.3. Condition at Surrender. Tenant will surrender the Premises at the
end of the Term in as good condition and repair as they are in on the
Commencement Date, ordinary wear and tear only excepted.
4.4. Tenant's Maintenance Obligations. Throughout the Term Tenant
shall, at its sole expense, maintain the Premises in good condition and state of
repair (including but not limited to the heating, air-conditioning, plumbing,
electrical, sewer, water, roof, walls and ceilings and the walkways, trash
dumpster area and landscaped areas of the Premises) as well as the area in and
around the gas supply container and shall make all repairs, replacements and
renewals necessary to put or maintain the Premises in such state of repair and
condition. In addition, Tenant shall keep the Premises in a safe and sanitary
condition, free from nuisance, ice, snow and as required by all applicable Laws.
Without limiting the foregoing, Tenant shall be responsible for, and shall pay
the costs of all snow removal from the Premises and shall keep and maintain all
landscaping on the Premises in good, well kept and neatly trimmed condition. If
Tenant refuses or neglects to repair or maintain property as required hereunder
as soon as reasonably possible after written demand, and to the reasonable
satisfaction of Landlord, Landlord may make such repairs or maintenance without
liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures or other property or to Tenant's business by reason
thereof, and upon completion thereof, Tenant shall pay Landlord's costs for
making such repairs or maintenance upon presentation of a xxxx therefor.
4.5. Sewer Line. Tenant will be responsible for maintenance, repair and
replacement, if necessary, of the sewer line serving the Restaurant Building to
the junction of such sewer line with the sewer line serving the Hotel, except
that Landlord represents and warrants that such sewer line is in reasonably good
condition and repair as of the Commencement Date. Tenant and the owner of the
Hotel will share proportionately the cost of maintenance, repair and replacement
of the common sewer line from such junction to the connection of such common
sewer line with the public main.
4.6. Termite Contract. Tenant shall continue in force throughout the
Term the existing termite and pest control contract for treatment of the
Restaurant Building, or a replacement contract with a licensed pest control
company acceptable to Landlord. Tenant will pay all the costs of treatments
provided under such contract during the Term.
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4.7. Additions and Alterations. Tenant shall not make or cause to be
made any material alterations, additions or improvements to the Premises or
structural changes without first obtaining Landlord's written approval and
consent, which approval will not be unreasonably withheld or delayed. Any
request for approval of material alterations, additions or improvements must
include reasonably detailed plans and specifications (including architectural
drawings where appropriate). Any material alterations, additions or improvements
approved by Landlord must be made at Tenant's sole cost and expense, must be
completed in good and workmanlike fashion, must comply with all Laws. The
parties agree and acknowledge that Tenant intends to perform significant
cosmetic alterations in the first two months of the Term in order to make the
Restaurant Building suitable for use as a "Montana Mike's" restaurant. As part
of Tenant's renovation and prior to opening for business, Tenant will
substantially change the exterior color of the Restaurant Building, with the new
color to be approved by Landlord in advance. Without waiving its rights to
approve any and all plans for alterations, Landlord agrees to employ good faith
efforts to respond to any request for approval of such initial renovation plans
in a timely manner.
4.8. Alterations Part of Realty. Any improvements, alterations,
additions or fixtures incorporated into the Restaurant Building shall become a
part of the realty, shall belong to Landlord, and shall remain on and be
surrendered with the Premises at the termination of this Lease. No improvements,
alterations or additions to the Premises shall be removed without Landlord's
prior written consent. Tenant shall repair all damage caused by any removal.
4.9. Fixtures. Tenant may install in and affix to the Premises such
trade fixtures and equipment as Tenant deems desirable for the operation of
Tenant's business All such trade fixtures and equipment shall remain the
property of Tenant. Tenant shall have the right to remove all of its trade
fixtures and equipment within ten days following the expiration or earlier
termination of the Lease and shall repair any damage to the Premises caused by
such removal. In the event that Tenant fails to remove any trade fixtures or
equipment within such ten day period, such trade fixtures and equipment shall
become the property of Landlord without reimbursement to Tenant
4.10. Alterations Required by Law. If during the Term any additions,
alterations, or improvements in or to the Premises, as distinguished from
repairs, are required by any governmental authority or any Laws, they shall be
promptly made and paid for by Tenant but only after the plans and specifications
for such work shall have been approved in writing by Landlord, which approval
shall not be unreasonably withheld or delayed. In any event, Tenant shall give
Landlord written notice and copies of any directive, order, notice or the like,
issued by any governmental authority in respect of the Premises or Tenant's use
thereof within ten (10) days of Tenant's receipt thereof This Section shall not
affect Tenant's obligations otherwise in this Lease to maintain the Premises,
keep the same in good repair and otherwise comply with all Laws.
4.11. Statutory Liens. Tenant shall promptly pay for all labor done or
materials furnished in respect of any work, repair, maintenance, improvement,
alteration or addition done by Tenant in connection with the Premises,and shall
keep and hold the Premises and Landlord free, clear and harmless of and from all
liens that could arise by reason of any such work. If any such lien shall at any
time be filed against the Premises during the Term or as a result of work
performed during the Term, Tenant shall either cause the same to be discharged
of record within thirty (30) days after the lien is filed or, if Tenant in good
faith determines that such lien should be contested, Tenant shall furnish such
security as in Landlord's opinion may be necessary or required to prevent any
foreclosure proceedings against the Premises during the pendency of such
contest, and/or to satisfy any judgment in respect of any such lien, together
with the costs and expenses, including reasonable attorneys' fees and judgment
interest, in connection therewith. If Tenant shall fail to discharge such lien
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within such period or fail to furnish such security, then, in addition to any
other right or remedy, Landlord may but shall not be obligated to discharge the
same, either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit in court or by giving security or in such
other manner as is or may be prescribed by law or acceptable to such lien
claimant. Tenant shall repay to Landlord on demand all sums disbursed or
deposited by Landlord pursuant to the foregoing provisions hereof, including
Landlord's costs, expenses and reasonable attorneys' fees incurred by Landlord
in connection therewith. Nothing contained herein shall imply any consent or
agreement on the part of Landlord to subject Landlord's interest in the Premises
to liability under any mechanic's, materialmen's or other statutory lien law.
4.12. Signs. Tenant shall have the right to place, construct, and
maintain (a) exterior signs on the Restaurant Building; (b) a pylon sign at the
west sign location indicated on Exhibit B (the "West Sign"), provided no part of
such sign shall exceed nineteen feet in height above grade level; and (c) a
double sided display sign approximately 9' x 4'9" located on the center sign
(the "Center Sign") at the location indicated on Exhibit B. All such signs shall
be installed at Tenant's sole cost and expense, except that, upon initial
completion of such signs, Landlord shall reimburse Tenant's actual cost
(supported by invoices and evidence of payment), up to a maximum, aggregate
reimbursement of $5,580.00. The intent of the 19' height restriction on the West
Sign is to provide adequate visibility for the Center Sign. If the configuration
of the Center Sign is changed such that a taller West Sign will not interfere
with visibility of the Center Sign, the parties agree to negotiate a reasonable
increase in the allowable height of the West Sign. The right to install and
maintain any and all of such signs is subject to all applicable Laws and to
Landlord's prior written consent (which consent shall include approval of the
location, style, method of installation and materials used in the sign).Landlord
acknowledges the Tenant may place one reasonably acceptable sign at the front of
the Restaurant Building and another above the main door. Tenant shall not have
the right to place, construct, or maintain any other sign, advertisement,
awning, banner, or other exterior decoration without Landlord's consent. Any
sign that Tenant has the right to place, construct, and maintain shall comply
with all Laws, and Tenant shall obtain any approval required by such Laws.
Landlord makes no representation with respect to Tenant's ability to obtain such
approval. Tenant will pay the entire cost of illuminating the West Sign, and a
proportionate share of the cost of illuminating the Center Sign. On expiration
of the Term or earlier termination of this Lease, Tenant will be permitted to
remove Tenant's sign boards. Pylons, posts and other structural components of
the West Sign shall remain on the site as property of the Landlord and Tenant
will be entitled to an offset against Tenant's obligations in an amount equal to
the depreciated cost of such structural components.
Article 5
PARKING AND DRIVEWAYS
5.1. Rights to Use. During the Term, Tenant and Tenant's customers,
invitees, employees, servants, licensees, contractors and agents shall have the
non-exclusive right to use the driveways, walkways and parking areas
(collectively, the "Parking Areas") located on property owned by Landlord
adjacent to the Premises, for ingress, egress and reasonable and ordinary
parking purposes. Landlord and Landlord's customers, invitees, employees,
servants, licensees, contractors and agents shall also have the non-exclusive
right to use the Parking Areas for ingress, egress and reasonable and ordinary
parking purposes. Tenant shall install and maintain a sign on the Premises
informing patrons of the Restaurant that additional parking is available on the
north side of the Restaurant Building.
5.2. Maintenance. Tenant will be responsible for the operation and care
of the portion of the Parking Areas shown as "Parking Area A" on Exhibit B, and
shall keep such area in a good, safe and sightly condition, free of trash and
debris. Landlord will be responsible for the operation and care of all other
parking areas, and shall keep such area in a good, safe and sightly condition,
free of trash and debris. All decisions as to when major work on the entire
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Parking Areas (such as striping or resealing) shall be done and the selection of
the contractor or contractors will be made by Landlord. In the event Landlord
determines such repair or maintenance work should be done to the entire Parking
Areas, the cost of such work on the Parking Area A will be paid 75% by Tenant
and 25% by Landlord, and the cost of such work on all other Parking Areas will
be paid 100% by Landlord.
5.3. Snow Removal. During any periods when the Hotel is open for
business for the season, snow removal services for the entire Parking Areas will
be contracted by Landlord and Tenant, and the cost of snow removal from the
Parking Area A will be paid 75% by Tenant and 25% by the Landlord, and the cost
of snow removal from the balance of the Parking Areas will be paid 100% by the
Landlord. During any periods when the Hotel is closed for the season, Tenant
will be responsible for, contract for and pay all costs of snow removal from
that portion of the Parking Areas needed for operation of Tenant's restaurant.
5.4. Parking Lot Lighting. Throughout the Term, Tenant will maintain,
repair and replace if necessary, the exterior lights on the roof of the
Restaurant Building which illuminate the Parking Areas, and will keep the
Parking Areas illuminated continuously during the night until midnight or after
all restaurant customers have left the parking lot area, whichever is later..
Landlord will pay to Tenant the sum of $125.00 per year (prorated for the first
Lease Year) as a contribution toward the cost of illuminating the Parking Areas.
Article 6
UTILITIES AND TAXES
6.1. Utilities. Tenant shall contract for and shall pay, before
delinquency, all charges and deposits for gas, electricity, water, sewer,
telephone and any other utilities or services used by it or furnished to the
Premises. Landlord will allow Tenant to maintain a gas supply container on
Landlord's property in the location occupied on the date of execution of this
agreement.
6.2. Taxes and Assessments. Landlord will be responsible for all real
property taxes and assessments on the Premises during the Term. Tenant will be
responsible for and timely pay or cause to be paid when due all personal
property, sales, use and income taxes on or arising out of Tenant's possession
or use of the Premises.
Article 7
INSURANCE
7.1. Tenant's Insurance. Tenant shall obtain and pay all premiums and
other costs for the types of insurance coverages described below. All insurance
shall be effected by valid and enforceable policies issued by insurers licensed
in the State of Missouri and reasonably acceptable to Landlord. Tenant shall
keep Landlord constantly furnished with certificates evidencing all such
insurance coverages and shall provide Landlord copies of such policy(ies) upon
its written request. Tenant shall carry the following insurance:
(a) Property Insurance. Insurance which covers the Premises, restaurant
dumpster areas and gas container areas against fire, wind and storm
damage and such other risks as may be included in the standard broad
form and extended coverage insurance as may be from time to time
available in amounts sufficient to prevent Landlord or Tenant from
becoming a co-insurer within the terms of the applicable policies, and
in any event in an amount not less than ninety per cent (90%) of the
then full replacement value of the Premises. Any insurance policy
giving such coverage may provide for a reasonable deductible amount,
but in the event of any insured casualty loss to the Premises, Tenant
will pay the amount of the applicable deductible to Landlord.
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(b) Insurance on Contents. Broad form extended coverage insurance on
all property owned by or under the control of Tenant in the Premises in
an amount not less than the full replacement value of such property.
(c) Liability Insurance. Comprehensive general liability insurance
protecting and indemnifying Landlord and Tenant against claims and
liabilities for injury or damage to persons or property or for the loss
of life or property occurring upon, in or about the Premises or any
portion of the Parking Areas, dumpster areas and gas container areas
which Tenant has a responsibility to maintain caused by or resulting
from any act or omission of Tenant, its employees, agents, contractors,
customers, guests, licenses or invitees, such insurance to afford
minimum protection in the amounts of $1,000,000 per occurrence and
$2,000,000 in the aggregate, with an additional umbrella liability
policy of at least $2,000,000.
(d) Worker's Compensation. Worker's compensation or similar insurance
with limits of liability of not less than the minimum amount provided
by law.
7.2. Notice of Cancellation. All insurance policies required to be
maintained by Tenant shall contain a provision that such policies shall not be
cancelled or terminated without thirty (30) days prior notice from the insurance
company to Landlord. Tenant agrees that on or before ten (10) days prior to
expiration of any insurance policy, Tenant will deliver to Landlord written
notification in the form of a receipt or other similar document from the
applicable insurance company that said policy or policies have been renewed, or
deliver certificates of coverage from another good and solvent insurance company
approved by Landlord for such coverage.
73. Persons Named as Insureds. All policies of insurance shall include
a long form noncontributory clause (otherwise known as a "New York" or "Union"
clause) naming Landlord as an additional insured as well as the Xxxxxxx Xxx Xxxx
trust and the Xxxxxx Xxxxx Xxxx trust and Best Western International, as their
interests may appear. Any or all of such policies may also name Tenant's
Franchisor (hereinafter defined) as an additional insured. If Landlord requests,
the mortgagee(s) or holder(s) of any deeds of trust affecting the Premises shall
also be named as additional insureds by means of clauses meeting their
requirements.
7.4. Waiver of Subrogation. Landlord and Tenant hereby release each
other from all liability for damage due to any act or neglect of the other
(except as hereinafter provided) occasioned to property owned by the parties
which is or might be incident to or the result of any casualty which would be
covered by any insurance policy which either of the parties hereunder is
required to carry under the terms of this Lease (whether or not such party is
actually maintaining such insurance coverage). However, these releases shall not
apply to any loss or damage occasioned by the willful act of either of the
parties, and the parties agree that any insurance they obtain on their
respective properties shall contain an appropriate provision whereby the
insurance company, or companies, consents to the mutual release of liability
contained in this Section and waives all right of recovery by way of subrogation
against Landlord or Tenant in connection with any loss or damage covered by any
such policies. Neither party shall be liable to the other for any loss or damage
caused by fire or any of the risks enumerated in its policies, provided such a
waiver was obtainable at the time of such loss or damage. The parties
specifically recognize and acknowledge that the waivers contained herein are and
shall be effective even though such claims may arise as a result of the
negligence of the party being released hereunder, or such party's agents,
officers or employees.
7.5. Lenders. If the Premises are subject to any mortgage(s) or deed(s)
of trust, Tenant shall upon demand of Landlord have the holder(s)thereof named
as an additional insured(s) by means of a long form noncontributory clause. Such
lender(s) shall also have the right of prior approval over any insurance
policies,and Tenant agrees to make any changes in the same or to procure any
additional insurance which the lender(s) may request provided the Landlord shall
use best efforts to have Tenant's existing coverage approved by the Lender.
Losses covered by insurance shall be payable in accordance with any mortgage(s)
or deed(s) of trust.
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Article 8
ALLOCATION OF LIABILITY, INDEMNITY
8.1. Exculpation of Landlord. Tenant shall have no claim against
Landlord for, and Landlord has no liability to Tenant for, any accidents or
occurrences which arise on or respecting the Premises, unless Landlord has
intentionally or negligently caused the harm. Landlord shall not be liable to
Tenant for any loss or damage to Tenant, or to any property of Tenant located in
or about the Premises, regardless of the cause of the loss or damage unless
Landlord has intentionally or negligently caused the harm.
8.2. Indemnification of Landlord by Tenant. Tenant shall indemnify,
defend and save Landlord harmless from and against any and all claims, demands,
causes of action, liabilities and costs for, or in connection with, any
accident, injury (including death), loss or damage whatsoever caused to any
person or property arising, directly or indirectly out of the use of the
Premises during the lease Term or occurring in, on or about the Premises, the
dumpster area and the area around the gas supply container during the lease Term
from any cause other than Landlord's negligence or intentional act, and from and
against any and all costs, expenses and liabilities incurred in connection with
any such claim, demand, cause of action or proceeding brought thereon. If any
case, action or proceeding be brought against Landlord by reason of any such
claim, Tenant shall, upon written notice from Landlord, defend the same, at
Tenant's sole cost and expense, by counsel reasonably satisfactory to Landlord.
Tenant, as a material part of the consideration to Landlord, hereby assumes all
risk of damage to property or injury to persons, in, upon or about the Premises
from any cause other than Landlord's negligence or intentional act, and Tenant
hereby waives all claims in respect thereof against Landlord. This indemnity
shall apply only to the extent that there is insufficient insurance coverage for
Landlord, whether through an insurance policy purchased by Landlord, Tenant, or
otherwise, the intent of this provision being to create contractual indemnity by
Tenant to Landlord only for loss, damage, and costs occasioned by Landlord in
excess of the defense provisions and liability limits of all such policies of
insurance.
Article 9
DAMAGE BY CASUALTY
9.1. Effect of Damage. In the event of any damage to or destruction of
the Premises, Tenant will promptly give written notice thereof to Landlord
generally describing the nature and extent of such damage or destruction. If the
extent of such damage is not sufficient to deprive Tenant of more than
twenty-five percent (25%) of the floor space of the Premises, and if the
additional insureds named on the applicable casualty insurance (if any) consent
to xxx of the proceeds for rebuilding, Tenant shall, at its expense, whether or
not the insurance proceeds (if any) shall be sufficient for the purpose,
promptly commence and complete with due diligence and in good faith the
restoration, repair, replacement or rebuilding of the Premises to as nearly as
possible their value, condition and repair immediately prior to such damage or
destruction, with such alterations or additions, if any, as Tenant may elect to
make pursuant and subject to the conditions of this Article 9 or as may be
required by applicable Laws (such restoration, replacement, rebuilding,
alterations and additions, together with any temporary repairs and property
protection pending completion of the work, being herein collectively referred to
as the "Restoration"). If, however, the extent of such damage or destruction is
sufficient to deprive Tenant of more than twenty-five percent (25%) of such
floor space for its purposes and does not violate the terms of any applicable
franchise agreement on floor space, Tenant shall notify Landlord in writing and
the rights and obligations of the parties shall be governed by the following:
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(a) if such damage shall occur at a time when at least three Lease
Years of the Term (exclusive of unexercised Extension Options) remain,
Tenant shall proceed with the Restoration and this Lease shall continue
in full force and effect.
(b) If at the date of such damage or destruction less than three Lease
Years of the Term (exclusive of unexercised Extension Options) remain,
Tenant may either terminate this Lease by written notice to Landlord,
or complete Restoration, in which case this Lease shall continue in
full force and effect.
(c) The rent payable hereunder shall xxxxx during such period of
Restoration, except that in no event shall the period of rent abatement
exceed 90 days.
9.2. Insurance Proceeds. All proceeds of insurance maintained by Tenant
to cover damage or destruction to the Premises shall be applied as needed by
Tenant to complete the Restoration, unless this Lease is terminated as a result
of such damage or destruction. If the Lease is tenninated, Tenant shall assign
all such insurance proceeds to Landlord.
Article 10
CONDEMNATION
10.1. Total Taking. If the whole of the Premises is appropriated and
taken for any public use by virtue of eminent domain or condemnation proceedings
or conveyed to a public body in lieu of, during or upon threat or imminence of
such proceedings (a "Total Taking"), then the Term shall terminate as of the
date of the transfer of title. All rentals shall be paid up to that date.
10.2. Partial Taking. If any part of the Premises is appropriated and
taken for any public use by virtue of eminent domain or condemnation proceedings
or conveyed to a public body in lieu of, during or upon threat or imminence of
such proceedings (a "Partial Taking"), and in the event such Partial Taking
shall be of more than 25% of the floor space of the Premises and renders the
Premises unsuitable for the business of Tenant, then, at the option of Landlord
or Tenant exercised in writing on or before such transfer of title, the Term
shall terminate as of the date of transfer of title. In the event of a Partial
Taking which is less than 25% of the floor space or not extensive enough to
render the Premises unsuitable for the business of Tenant, then Landlord, to the
extent possible, shall promptly restore the Premises to a condition comparable
to its condition immediately prior to such taking (less the portion lost in the
taking) and this Lease shall continue in full force and effect. Minimum Rent
shall be adjusted to the extent of any reduction in the area of the Premises
resulting from the Partial Taking.
10.3. Compensation. In the event of any Total or Partial Taking, Tenant
shall have no claim against Landlord for the value of the unexpired Term and
Tenant shall not be entitled to any part of the award or recovery paid for such
taking or any judgment for damages caused by such taking, whether the award or
recovery is paid as compensation for diminution in value to the leasehold or to
the fee of the Premises. Landlord shall receive the full amount of such award,
and Tenant expressly waives any right or claim to any part thereof. However,
Tenant shall have the right to claim and recover from the condemning authority,
but not from Landlord, such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right on account of any and all damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures and equipment.
10.4. Notice of Condemnation. Each party shall, promptly after it
receives notice of the intention of any such authority to appropriate or take
all or any portion of the Premises, give written notice thereof to the other
party.
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Article 11
ASSIGNMENT AND SUBLEASE
11.1. Assignment and Subletting. Tenant shall not assign, transfer or
encumber this Lease or any part hereof, and shall not sublet, grant licenses or
concessions, or allow any other occupant to come into the Premises with or under
Tenant without the express prior written consent of Landlord. Without such prior
written consent, Tenant shall not permit this Lease or the leasehold estate
hereby created to become vested in or owned by any other person, firm or
corporation or partnership, through any type of transfer or assignment, whether
by merger, consolidation, dissolution, liquidation, transfer of stock,
membership or partnership interests or otherwise. Any change in the ownership or
power to vote a majority of Tenant's outstanding voting stock or membership or
partnership interest in Tenant shall constitute an assignment. Acceptance of
rent by Landlord from anyone other than Tenant shall not be construed as a
waiver by Landlord of the actions prohibited by this Section, nor as a release
of Tenant from any obligation or liability under this Lease, but the same shall
be taken to be a payment on account by Tenant.
11.2. Assignment Under Franchise Agreement. Notwithstanding the
restrictions set forth in Paragraph 11.1, above, for so long as Tenant's
franchise agreement with Stockade Franchising, LP ("Franchisor") remains in
effect permitting operation of a Montana Mike's(R) restaurant in the Restaurant
Building, (1) Tenant's rights, duties and obligations under this Lease may be
assigned by Tenant to Franchisor with the prior approval of Landlord; (2)
Landlord will make good faith efforts to give notice to Franchisor (at
Franchisor's address of 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000 Attention:
Madison Jobe) of any default by Tenant under this Lease at the same time as such
notice is given to Tenant, and Franchisor shall have the right, but not the
obligation to cure any such default; (3) upon assuming Tenant's rights, duties
and obligations under this Lease, Franchisor may, with Landlord's prior written
consent, reassign or sublet the Premises to an affiliate or franchisee of
Franchisor; and (4) upon written request from Franchisor, Landlord will give to
Franchisor copies of any reports or financial statements submitted to Landlord
by Tenant, and Tenant hereby irrevocably consents to the delivery of such
reports and financial statements to Franchisor.
11.3. Involuntary Assignment. No interest of Tenant in this Lease shall
be assignable by operation of law (including, without limitation, the transfer
of this Lease by testacy or intestacy). Each of the following acts shall be
considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent, makes an assignment
for the benefit of creditors or institutes a proceeding under the
Bankruptcy Code in which Tenant is the debtor; or, if Tenant is a
partnership or consists of more than one person or entity, if any
partner of the partnership or other person or entity is or becomes
bankrupt or insolvent, or makes an assignment for the benefit of
creditors;
(b) If a writ of attachment or execution is levied on this Lease; or
(c) If, in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the
Premises.
An involuntary assignment shall constitute a default by Tenant and
Landlord shall have the right to elect to terminate this Lease, in which case
this Lease shall not be treated as an asset of Tenant.
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Article 12
DEFAULT AND REMEDIES
12.1. Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant.
(a) The vacating or abandonment of the Premises by Tenant, or any
failure of Tenant to keep the Premises open for business as required
under Section 3.2.
(b) The failure by Tenant to make any payment of Percentage Rent,
Minimum Rent or Additional Rent, within thirty (30) days after due.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by
Tenant, other than payment of Percentage Rent, Minimum Rent or
Additional Rent, where such failure shall continue for a period of
thirty (30) days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such
cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition
for reorganization or arrangement under any law relating to bankruptcy
unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days; or the appointment of a trustee or a
receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where such seizure is not discharged in thirty (30) days.
12.2. Landlord's Remedies. In the event of any such default or breach
by Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any other right or remedy which
Landlord may have under this Lease by reason of such default or breach:
(a) Using any and all lawful means, reenter the Premises, and terminate
Tenant's right to possession of the Premises by terminating this Lease,
in which event Tenant shall immediately surrender the Premises to
Landlord. In such event Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant's default,
including but not limited to, the cost of recovering possession of the
Premises; including necessary repair of damage of the Premises,
reasonable attorney's fees and costs.
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises; in such event Landlord shall be entitled to enforce all other
obligations of Tenant under this Lease, including the obligation of
Tenant to pay Percentage Rent, Minimum Rent and Additional Rent as and
when they become due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord
under the Laws or judicial decisions of the State of Missouri. Without
limitation, Landlord may enforce its rights by an action for rent and
possession, unlawful detainer, or other legal remedy. Regardless of the
remedy sought, Tenant agrees that in the event Landlord is required to
bring any action at law or in equity against Tenant to enforce any
15
terms of this Lease, Tenant hereby agrees to pay Landlord's reasonable
attorney's fees (including appellate fees) and costs, as they may be
set by the court in which the original action was brought. Such fees
shall be considered Additional Rent.
12.3. Written Termination Required. No actions taken by Landlord after
Tenant's default shall be construed as indicating a termination of this Lease.
This Lease shall remain in full force and effect and shall not be terminated
unless Landlord so elects in writing, provided, however, that Tenant may
terminate this Lease upon sixty (60) days written notice to Landlord, in which
event the Lease will be terminated, but Tenant will remain obligated to pay to
Landlord: (1) all Percentage Rent, Minimum Rent and Additional Rent accrued
through the date of such termination; (ii) the liquidated damages provided for
in Paragraph 12.9 below; and (iii) costs of collection of any of such amounts.
Tenant's right to terminate this Lease upon such notice shall exist regardless
whether there has been any default by either party under this Lease.
12.4. Expenses. Landlord shall be entitled to recover from Tenant all
of Landlord's expenses in exercising any of its rights under this Lease,
including without limitation Landlord's attorney's fees and expenses.
12.5. Remedies Cumulative. The rights and remedies of Landlord
hereunder and any others provided by law shall be construed as cumulative and no
one of them is exclusive of any other right or remedy. Such rights and remedies
shall further be continuing rights, none of which shall be exhausted by being
exercised on one or more occasions. Landlord shall be entitled to an injunction
in proper cases to enforce any part or parts of this Lease or to prevent or stop
any violation or default on the part of Tenant. Whenever in this Lease Landlord
reserves or is given the right and power to give or withhold its consent to any
action on the part of Tenant, such right and power shall not be exhausted by its
exercise on one or more occasions,, but shall be a continuing right and power
for the full Term.
12.6. Landlord's Right to Cure Default. If Tenant shall be in default
in the performance of any covenant on its part to be performed under this Lease,
then, after notice and without waiver or releasing Tenant from the performance
thereof, Landlord may, but shall not be obligated to, perform any such covenant
and/or pay necessary and incidental costs and expenses in connection therewith.
All sums so paid by Landlord, together with interest thereon at the Default
Rate, shall, upon notice to Tenant of the amount thereof, be deemed Additional
Rent and shall be payable to Landlord no later than the next Percentage Rent
payment day.
12.7. Abandonment. If Tenant shall abandon, vacate or surrender the
Premises, or be dispossessed by process of law or otherwise, all fixtures,
chattels, equipment and personal property belonging to Tenant and not removed
from the Premises within ten (10) days after such surrender by Tenant shall, at
the option of Landlord, be deemed abandoned by Tenant.
12.8. Holding Over. If Tenant remains in possession of all or any
portion of the Premises after expiration or earlier termination of the Term
without the express written consent of the Landlord, such occupancy shall be
deemed to be a month-to-month tenancy but terminable upon ten (10) days' written
notice given by either party at any time. During such holdover occupancy, Tenant
shall pay all Additional Rent and perform all obligations required of it by this
Lease during the Term, except that Minimum Rent during such holdover occupancy
shall be at a rate equal to twice the Minimum Rent theretofore in effect,
payable in monthly installments in advance.
12.9. Liquidated Damages and Guaranty. The parties agree and
acknowledge that Landlord's damages would be difficult to determine in the event
of early termination of this Lease. As a result, Landlord and Tenant agree that,
if Landlord takes possession of the Premises or the Lease is terminated prior to
16
the end of the Term as a result of Tenant's default or upon Tenant's exercise of
its right to terminate under Section 12.3, Tenant will be obligated to pay all
Rent and other charges accrued but unpaid as of the date of such possession or
termination, plus liquidated damages ("Liquidated Damages") in an amount equal
to the annual Minimum Rent for the then-current Lease Year. Upon payment of such
accrued obligations and Liquidated Damages, Tenant shall have no further
monetary obligation hereunder. As a condition and material inducement to
Landlord's entering into this Lease, Tenant's parent company, ITEC Attractions,
Inc., a Nevada corporation, will guaranty payment of the Liquidated Damages in
the event of any early surrender of possession or termination of this Lease as a
result of Tenant's default or upon Tenant's exercise of its right to terminate
under Section 12.3.
Article 13
LANDLORD FINANCING
13.1. Subordination. This Lease is subject and subordinate at all times to the
lien of any mortgage or deed of trust which may now or hereafter encumber
Landlord's interest in the Premises, and to all Extensions, modifications,
amendments, consolidations, replacements, and extensions thereof. Tenant shall
execute and deliver any instrument which may be reasonably required by Landlord
in confirmation of such subordination promptly upon Landlord's request. Landlord
shall, upon Tenant's written request and notice to it, exercise its best efforts
to obtain the lienholder's written agreement that Tenant's rights shall remain
in full force and effect during the Term so long as Tenant continues to
recognize and perform all of its covenants and conditions. Further, at
Landlord's sole option, this Lease may be assigned by Landlord to any mortgagee
or cestui que trust as additional security for any loan to Landlord, and Tenant
upon request shall acknowledge receipt of notice of each such assignment. Such
assignment may be recorded, but Tenant shall, upon notice of such assignment
comply with the terms thereof. Within twenty (20) days after Landlord's request
therefor, Tenant shall execute a written instrument to Landlord or any other
person, firm or corporation specified by Landlord, certifying:
(a) That Tenant has accepted the Premises, is in occupancy, and is
paying rent on a current basis with no offsets or claims, or if it is
not paying rent on a current basis or does have offsets or claims,
Tenant shall specify the status of its payments of rent and the basis
and amount claimed due as offsets or claims;
(b) That this Lease is unmodified and in full force and effect, or if
there has been any modification that the same is in full force and
effect as so modified and appropriately identifying any such
modification;
(c) Whether or not there are any offsets or defenses then existing in
favor of Tenant against the enforcement of any of the terms, covenants
and conditions of this Lease and if so specifying the same, and also
whether or not Landlord has observed and performed all the terms,
covenants and conditions on its part to be so observed and performed
and if not, specifying the same;
(d) The dates to which installments of Minimum Rent, Additional Rent
and all other charges hereunder have been paid; and
(e) Such other information as Landlord may reasonably request.
Such requests may be made by Landlord at any time and from time to time
during the Term. Upon the request of the holder of any such deed of trust,
mortgage or security agreement, Tenant agrees to execute, acknowledge and
deliver to such party or parties or to the purchaser of the Premises in
foreclosure an instrument in writing satisfactory to such party whereby Tenant
fully attorns to such successor in interest subject, however, to the approval of
such instrument by Tenant, which approval shall not be unreasonably withheld or
delayed.
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13.2. Attornment. Tenant will, upon the request of Landlord or of the
mortgagee or trustees, under any such mortgage or deed of trust, execute an
attornment instrument and attorn to such mortgagee or trustees and become its
Tenant on the terms herein contained for the unexpired residue of the Term.
Article 14
ENVIRONMENTAL PROVISIONS
14.1. Landlord's Warranties. Landlord warrants and represents to Tenant
that as of the Commencement Date,the Premises are not subject to any
environmentally hazardous condition including:
(a) The existence of any Hazardous Material on the Premises;
(b) Any condition caused by any leaking, spillage, release, discharge,
emission, storage, burial or disposal of any Hazardous Material within
the Premises or any condition caused by the location or placement of
any Hazardous Material within the Premises;
(c) Any condition caused by the placement, use, discharge, disposal,
leaking, storage, injection or deposit or burial of any Hazardous
Material within the Premises; or
(d) Any leakage within the Premises of any gasoline or petroleum
products or any Hazardous Material from any underground storage tank
(and Landlord is not aware of the existence of any underground storage
tanks on or under the Premises).
14.2. Negative Covenants. From the Effective Date hercof Tenant and
Tenant's agents, contractors, employees and invitees shall not engage in any of
the following prohibited activities:
(a) cause or permit any processing, manufacturing, transporting,
handling, release, or discharge, or threat of any of the foregoing, of
Hazardous Material on or from the Premises or any portions of the
Premises; or
(b) cause or permit any use, handling or storage of Hazardous Material
in or on any portion of the Premises, except as specifically authorized
by Landlord in writing, which shall be in the ordinary course of
Tenant's maintenance or cleaning on or of the Premises, and in a manner
not to allow any contamination of the Premises, and in accordance with
all Environmental Laws, as hereinafter defined; or
(c) cause or permit any violation of any Environmental Laws.
14.3. Compliance With Environmental Laws. Tenant and its agents,
contractors, employees and invitees shall comply, and cause the Premises to
comply, with all Environmental Laws.
14.4. Removal and Remediation. If Hazardous Material is placed or
discharged on the Premises by Tenant, Tenant shall pay immediately when due the
cost of removal of any Hazardous Material from the Premises in compliance with
all governmental requirements, and keep the entire Premises free of any lien
imposed pursuant to any Environmental Laws. Within thirty (30) days after demand
by Landlord, Tenant shall obtain and deliver to Landlord a bond, letter of
credit, or similar financial assurance for the benefit of Landlord, evidencing,
to Landlord's satisfaction in its sole discretion,that the necessary funds are
available to pay the cost of removing, treating, and disposing of all
Hazardous Material on the Premises or any contamination caused thereby, and
discharging any assessments or liens which may be established on the Premises as
a result thereof.
18
14.5. Affirmative Covenants. Tenant covenants to:
(a) Give written notice to Landlord immediately upon Tenant's acquiring
knowledge of the unauthorized presence of any Hazardous Material on the
Premises or of any Hazardous Material contamination thereon, with a
full description thereof;
(b) Immediately advise Landlord in writing of any notices received by
Tenant or Tenant's agents, contractors, authorized representatives and
employees, alleging that the Premises contains Hazardous Material or
contamination thereof, or that a violation or potential violation of
any Environmental Laws by Tenant, its agents, the Premises exists;
(c) Immediately advise Landlord in writing upon discovery of any and
all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened with respect to the
Premises or any real estate adjoining the Premises;
(d) Immediately advise Landlord in writing upon discovery of all claims
made or threatened by any third party against any party relating to
damage, contribution, cost recovery compensation, loss or injury in any
way associated with any Hazardous Material in, on, under or in the
vicinity of the Premises; and
(e) Immediately advise Landlord in writing upon Tenant's discovery or
any discovery by Tenant's agents, contractors, authorized
representatives and employees, of any occurrence or condition on any
real property adjoining or in the vicinity of the Premises which does,
or could, cause the Premises, or any part thereof, to contain Hazardous
Material or otherwise be in violation of any Environmental Laws, or
cause the Premises to be subject to any restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws,
or impact the future marketability of the Premises.
14.6. Landlord's Removal Rights. Landlord shall have the right, but not
the obligation, to cause all Hazardous Material and Hazardous Material
contamination placed or discharged on the Premises by Tenant to be removed
therefrom or otherwise remediated in such manner as may be necessary or
desirable in the sole judgment of Landlord. In such event, the cost of the
removal, including all expenses, charges, and fees incurred by Landlord in
connection therewith, including attorneys', engineers', and consultants' fees,
shall be payable by Tenant on demand, and shall bear interest at the Default
Rate from the date advanced until paid. Tenant shall give to Landlord and its
agents and employees access to the Premises for such purposes and Tenant hereby
grants to Landlord, its agents, contractors authorized representatives and
employees, full right and authority to remove any such Hazardous Material and
Hazardous Material contamination from the Premises.
14.7. Environmental Audit. If at any time Landlord has reasonable cause
to believe that an environmental condition in violation of this Lease exists,
Landlord may notify Tenant in writing that it desires a site assessment or
environmental audit (an "Audit") of the Premises to be made, and at any time
thereafter cause such Audit to be made of the Premises. Tenant shall reimburse
Landlord for the cost of the Audit if the Audit reveals Tenant has breached
Tenant's obligations under this Article 14. Such Audit(s) shall be performed in
a manner reasonably calculated to confirm and verify compliance with the
provisions of this Article 14. Tenant covenants to reasonably cooperate with the
persons conducting the Audit to allow entry and reasonable access to all
portions of the Premises for the purpose of the Audit, to supply the auditors
with all available historical and operational information regarding the Premises
(of meetings with the auditors appropriate personnel having knowledge of matters
19
relevant to the Audit. Tenant covenants to comply, at its sole cost and expense,
with all recommendations contained in the Audit, including any recommendation
for additional testing and studies to detect the presence of Hazardous Material,
or to otherwise confirm and verify Tenant's compliance with the provisions of
this Section, to the extent required by Landlord.
14.8. Indemnity by Tenant. Tenant hereby agrees to defend, indemnify
and hold Landlord (including the respective successors, assigns, employees,
agents, officers and directors of Landlord) harmless from, any and all actions,
loss, liability, damage, cost or expense occasioned by, resulting from, or
consequent to any Hazardous Material or Hazardous Material contamination caused
by Tenant, Tenant's agents, contractors, authorized representatives or employees
on the Premises. This indemnity shall be enforceable notwithstanding any
attempts by Tenant to exercise due diligence in ascertaining whether or not any
of the events outlined above affect the Premises. The loss, liability, damage,
cost, or expense which is covered by this indemnity shall include, without
limitation, all foreseeable consequential damages; the costs of any required or
necessary repair, cleanup or detoxification of the Premises, including the soil
and ground water thereof, and the preparation and implementation of any closure,
remedial or other required plans; damage to any natural resources; and all
reasonable costs and expenses incurred by Landlord in connection with the above,
including but not limited to attorneys' and consultants' fees.
14.9. Indemnity by Landlord. Landlord hereby agrees to indemnify,
defend, save and hold harmless Tenant and its directors, officers, shareholders,
successors and assigns of and from any and all claims, actions, causes of
action, demands, suits, losses, expenses, liabilities and responsibilities,
including those for clean up, remediation, removal, detoxification and disposal,
of any kind or nature whatsoever which may hereafter arise as a result of any
Hazardous Material placed or stored on the Premises by Landlord, or placed or
stored on the Premises by any person prior to the Commencement Date.
14.10. Definitions. As used herein, the term "Hazardous Material" means
any radioactive, hazardous, or toxic substance, material, waste, chemical, or
similar item, the presence of which on the Premises, or the discharge, emission,
release, or threat of release of which on or from the Premises, is prohibited or
otherwise regulated by any laws, ordinances, statutes, codes, rules,
regulations, orders, and decrees of the United States, the State of Missouri,
and all local or governmental or regulatory authorities exercising jurisdiction
over Tenant or the Premises, or which require special handling in collection,
storage, treatment, or disposal by any such laws or requirements, including,
without limitation (a) asbestos, (b) any material, substance or waste defined as
"Hazardous Waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901, et seq.), (c) any material, substance or
waste defined as a Hazardous Substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Sections 9601 et seq.), (d) any material, substance or waste defined as a
"regulated substance" pursuant to subchapter IX of the Solid Waste Disposal Act
(42 U.S.C. Section 6991, et seq.), (e) any material, substance or waste defmed
as a "Hazardous Material" pursuant to the Hazardous Materials Transportation Act
(49 U.S.C. Section 1801 et seq.) or (f) any material, substance or waste defined
as hazardous by regulations promulgated pursuant to the laws identified in (a)
through (e) above. Notwithstanding the above provisions, the phrase "Hazardous
Materials" shall not include any such materials,substances or wastes existing on
the Premises in quantitiesand/or for periods of time insufficient to give rise
to notification or management requirement under any applicable laws, rules or
regulations. The term "Environmental Laws" means any and all applicable laws,
ordinances, statutes, codes, rules, regulations and requirements of the United
States, the State of Missouri, and all local authorities exercising jurisdiction
over the Tenant or the Premises regulating or governing Hazardous
20
Materials,including without limitation all rules or regulations adopted by any
administrative agency, including the Environmental Protection Agency, the
Occupational Safety and Health Administration, and any similar state or local
agency having jurisdiction over the Premises, whether or not such rules and
regulations have the force of law.
14.11. Access to Data and Documents. Tenant shall provide Landlord, its
agents, contractors, employees and representatives with access to and copies of
any and all non-privileged data and documents relating to or dealing with any
actual or potential Hazardous Materials used, generated, manufactured, stored or
disposed of on, under or about the Premises or transferred to or from the
Premises within three (3) days of a request therefor. Landlord reserves the
right to disclose any and all information relating to Hazardous Materials
gathered or received by Landlord to the appropriate local, state or federal
agencies when advised by its counsel that such disclosure is required by law or
Court order.
Article 15
PURCHASE OPTION
15.1. Purchase Option. Landlord grants to Tenant an option (the
"Option") to purchase the Premises from Landlord, on or before the end of the
36th month of the Term for the consideration, and upon the terms and conditions
set forth below.
15.2. Purchase Price. The price to be paid by Tenant to Landlord for
the Premises (the "Purchase Price") shall be (i) One Million Three Hundred
Thousand Dollars ($1,300,000) if the Option is exercised during the first 24
months of the Term, and (ii) One Million Three Hundred Thirty Nine Thousand
Dollars ($1,339,000) if the Option is exercised during the 25th through 36th
month of the Term.
15.3. Exercise of Option. Tenant's election to exercise this Option
must be evidenced by a written notice addressed to Landlord, sent in accordance
with the notice provisions of this Agreement. Such notice shall (i) state that
Tenant is exercising the Option, and (ii) specify a date (the "Closing Date"),
no earlier than sixty (60) days and no later than one hundred twenty (120) days
after the date of such notice, for transfer of title to Tenant. Notice of
exercise of the Option. must be given to Landlord, if at all, prior to the last
day of the 36th month of the Term.
15.4. Subdivision, Establishment of Boundaries. The parties acknowledge
that the Premises are currently part of a single parcel containing the
Restaurant Building and the Hotel, and that, under applicable Laws, transfer of
the Premises to Tenant will require local subdivision approval. Upon receipt of
written notice of Tenant's exercise of the Option, Landlord will apply for
approval to subdivide the Premises from the remainder of Landlord's property,
such that the boundaries of the Land will consist only of the outside foundation
walls of the Restaurant Building, together with the immediately surrounding
landscaped areas and an 11' wide strip from the Restaurant to Highway 76 along
the west boundary of Landlord's property (the "Footprint"). If applicable Laws
then in effect will not permit creation of the Footprint as a separate legal
lot, Landlord will apply for approval to subdivide with the boundaries of the
Land containing the minimum setbacks from the front, back and sides of the
Restaurant Building, and including the 11' wide strip from the Restaurant to
Highway 76 along the west boundary of Landlord's property. In either event,
Landlord and Tenant will execute at Closing, as an appurtenance to the Premises,
a recordable reciprocal easement agreement for driveway and parking rights
substantially similar to those described in this Lease, subject to shared
maintenance and repair responsibilities in the manner described in this Lease.
If applicable Laws then in effect will not permit subdivision and separate
ownership of the Premises under either method stated above, Tenant's notice
exercising the Option will be deemed to have been revoked.
15.5. Closing. If Tenant exercises the Option, the closing of the
transfer of the Premises to Tenant (the "Closing") shall take place at the
offices of a reputable title company selected by Landlord (the "Title Company")
21
at 10 a.m., on the Closing Date At Closing, the Purchase Price shall be paid by
Tenant in cash or by certified funds to Landlord concurrently with the
conveyance of the Premises by Landlord to Tenant.
15.6. Transfer of Title. At Closing, Landlord shall convey marketable
record title to the Premises to Tenant by general warranty deed, free and clear
of all interests, liens and encumbrances, subject only to the following:
(a) general taxes for the year in which the Closing occurs and
subsequent years;
(b) zoning ordinances in effect at the date of Closing;
(c) easements, public and private, of record or not of record, which
are clearly apparent to the ordinary person on ordinary inspection of
the Premises;
(d) deed restrictions prohibiting gambling and games of chance on the
Premises and restricting the height of any sign on the Premises to no
more than 19' above grade level (subject to possible increase as
provided in Section 4.12 of this Lease;
(e) a right of first refusal reserved to the owner of the Hotel to
purchase the Premises if Tenant desires to sell the Premises, at the
price and on the terms extended by Tenant to a bona fide offeree;
(f) a cross easement and shared maintenance agreement regarding the
Parking Areas, reflecting the terms of Article 5 of this Lease; and
(g) such other restrictions and easements of record as will not
materially impair the use of the Premises the Tenant might reasonably
expect to make considering the general character thereof.
Any apparent encumbrance or defect in the title which is of the type or
comes within the scope of any of the Title Examination Standards of The Missouri
Bar shall not constitute a valid objection on the part of the Tenant, provided
the Landlord furnishes the affidavits, or other title papers, if any, described
in the applicable Title Examination Standard, and provided the Title Company
agrees to insure against such encumbrance or defect.
15.7. Title Insurance. The Landlord shall at least 10 days prior to the
Closing Date deliver to Tenant a commitment to issue an owner's policy of title
insurance in the amount of the Purchase Price, naming Tenant as the insured,
issued by the Title Company, which policy shall insure the owner's title to be
in the condition called for by this Agreement, and which commitment shall
provide that said policy shall be issued forthwith after the Landlord's general
warranty deed shall be placed of record. The Tenant shall pay the premium and
all other costs of the issuance of a title insurance policy if Tenant elects to
purchase such coverage.
15.8. Adjustments. The real estate taxes assessed against the Premises
shall be prorated as of the Closing Date. Rent payable under the Lease shall be
prorated as of the Closing Date.
15.9. Closing Costs. The fees charged by the Title Company for
conducting the Closing will be paid by Tenant. Tenant shall pay any title
insurance premium, and all closing costs related to Tenant's financing.
15.10. Effect of Purchase on Lease. Upon the transfer of the Premises
to Tenant, the lease shall be terminated, and no further rent of any kind shall
be due.
22
15.11. Survival of Certain Agreements. Notwithstanding termination of
the Lease, the following rights, duties and obligations will survive the
Closing:
(a) For so long as a restaurant is operated on the Premises, the owner
thereof will have the rights to use a portion of the Center Sign as set
forth in Section 4.12, subject to the terms of such Section.
(b) The owner of the Premises and the owner of the Hotel will share
responsibility for the sewer line as set forth in Section 4.5 and the
Parking Areas as set forth in Article 5.
15.12. Effect of Non-exercise. If Tenant does not exercise the Option
by the last day of the 36th month of the Term or fails, after giving notice of
exercise, to complete the purchase of the Premises in a timely manner, the
Option shall terminate automatically.
Article 16
GENERAL PROVISIONS
16.1. Time of Essence. Time is of the essence of this Lease, and of
each provision hereof.
16.2. Quiet Enjoyment. Upon payment by the Tenant of the rent herein
provided, and upon the observance and performance of all covenants, terms and
conditions on Tenant's part to be observed and performed by Tenant, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person or persons.
16.3. Successors in Interest. Each and all of the covenants, conditions
and restrictions in this Lease shall inure to the benefit of and shall be
binding upon the successors and assigns of Landlord (including, without
limitation, any future owner of the Hotel), and subject to the restrictions of
Article 11 the authorized encumbrancers, assignees, transferees, subtenants,
licensees and other successors in interest of Tenant.
16.4. Entire Agreement. This Lease contains the entire agreement of the
parties with respect to the matters covered by this Lease, and no other
agreement, statement or promise made by any party, or to any employer, officer
or agent of any party, which is not contained in this Lease shall be binding or
valid. No alteration, amendments or changes to the terms of this Lease shall be
binding unless first reduced to writing and executed with the same formality as
this Lease.
16.5. Partial Invalidity. If any term, covenant, condition or provision
of this Lease is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
16.6. Captions. Captions of the articles, sections and paragraphs of
this Lease are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
16.7. Notices. All notices, requests, and other communications
hereunder shall be in writing and shall be deemed to be duly given if delivered
or deposited in the U.S. Mail, first class postage prepaid, certified, return
receipt requested (except for rent payments), to the Landlord as follows:
MYER DEVELOPMENT CO.
000-X X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
23
and to Tenant as follows:
BRANSON RESTAURANTS, INC.
3562 Shepherd of the Hills Expressway
Xxxxxxx, XX, 00000
Each party may, from time to time, designate a different address by
notice given in conformity with this paragraph. The date of mailing as indicated
on the U.S. Postal mailing receipt shall be the commencement date for
calculating any time periods associated with the giving of notice hereunder. In
lieu of sending such notices by United States Mail, any party hereto may deliver
such notice in person or may transmit by Federal Express or any other reputable
overnight courier service which obtains a receipt for delivery and which has
active operations in the municipalities involved. Each party shall have the
right, from time to time, to designate a different address by notice given in
conformity with this section.
16.8. Right of Entry. Landlord or Landlord's agents shall have the
right to enter the Premises at all reasonable times to examine the same, and to
show them to prospective purchasers or Tenants thereof.
16.9. Authority. Each individual executing this Lease on behalf of
Tenant represents and warrants that s/he is duly authorized to execute and
deliver this Lease on behalf of Tenant and that this Lease is binding upon
Tenant in accordance with its terms. Each individual executing this Lease on
behalf of Landlord represents and warrants that s/he is duly authorized to
execute and deliver this Lease on behalf of Landlord and that this Lease is
binding upon Landlord in accordance with its terms.
16.10. Governing Law The provisions of this Lease, and the right and
obligations of Landlord and Tenant, shall be governed by the laws of the State
of Missouri and interpreted and construed in accordance with such laws without
regard to principles of conflicts of law.
16.11. Memorandum of Lease. At the request of Tenant, Landlord shall
join with Tenant in the execution of a Memorandum of this Lease for the purpose
of recording in the real estate records in the County in which the Premises are
located in order to give record notice of the rights of Tenant to use and occupy
the Premises during the Term pursuant to the provisions hereof. Such Memorandum
shall otherwise be in form and content reasonably satisfactory to each party
hereto.
Article 17
EXECUTION
17.1. Offer and Acceptance. Execution of this Lease by Tenant
constitutes an offer which shall not be deemed accepted by Landlord until
Landlord has executed this Lease and delivered a duplicate original to Tenant.
The submission of an unexecuted copy of this Lease for examination does not
constitute an offer.
17.2. Counterparts. This Lease may be executed by the parties in
several counterparts, each of which shall be deemed to be an original.
[Signatures begin on following page.]
24
IN WITNESS WHEREOF, the parties have executed this Lease as of the
Effective Date set forth above.
Attest: MYER DEVELOPMENT CO.
By: Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
STATE OF MISSOURI )
) ss.
COUNTY OF TANEY )
On this 12th day of July, 2005, before me the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxxx X. Xxxx, to
me personally known, who being by me duly sworn, did say that he is the
President of MYER DEVELOPMENT CO., a Missouri corporation, and he acknowledged
said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in said county and state, the day and year last above written.
Xxxxxxx X. Xxxxxxx
Notary Public in and for Said County and
State
My Commission Expires: 1/ 27/ 2006
Xxxxxxx X. Xxxxxxx
------------------
(Type, print or stamp the Notary's
name below his or her signature.)
BRANSON RESTAURANTS, INC.
By: Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
Title: CEO
STATE OF MISSOURI )
) ss.
COUNTY OF TANEY )
On this 12th day of July, 2005, before me the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxx X. Xxxxx, to
me personally known, who being by me duly sworn, did say that he is the CEO of
BRANSON RESTAURANTS, INC., a Missouri corporation, and he acknowledged said
instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in said county and state, the day and year last above written.
Xxxxxxx X. Xxxxxxx
------------------
Notary Public in and for Said County and
State
My Commission Expires: 1/ 27/ 2006
25
Xxxxxxx X. Xxxxxxx
------------------
(Type, print or stamp the Notary's
name below his or her signature.)
ITEC Guaranty
For value received, and as inducement to Landlord to execute the above Lease,
which Landlord would not execute without this inducement, ITEC Attractions, Inc.
("ITEC"), a Nevada corporation and the parent company of Tenant, guarantees
full, faithful and timely payment of the Liquidated Damages described in Section
12.9 of the Lease in the event of surrender of possession or early termination
of the Lease as a result of Tenant's default or upon Tenant's exercise of its
right to terminate under Section 12.3 of the Lease, together with any attorney's
fees and other costs of collection incurred by Landlord in recovering the
Liquidated Damages. Notice of the existence of any default and Tenant's
nonperformance of any obligations is hereby waived by ITEC. Landlord need not
exercise any remedies against Tenant or anyone else before proceeding against
ITEC on this guaranty. This guaranty shall be construed as an absolute and
unconditional guaranty of payment of the Liquidated Damages, and not as a
guaranty of collection. This guaranty shall inure to the benefit of Landlord and
its successors and assigns, and shall bind and be enforceable against ITEC and
its successors and permitted assigns.
Attest: ITEC ATTRACTIONS, INC.
By: Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
Title: CEO
26
