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EXHIBIT 10(hh)(ii)
CHILLED WATER SERVICE AGREEMENT
Dated as of December 10, 1999
Between
e.three Custom Energy Solutions, LLC
and
Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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E.THREE CUSTOM ENERGY SOLUTIONS, LLC
CHILLED WATER SERVICE AGREEMENT COVER PAGE
This Cover Page is attached to and made a part of that certain Chilled Water
Service Agreement dated December 10, 1999 by and between the customer identified
below and e.three Custom Energy Solutions, LLC, a Nevada limited-liability
company.
CUSTOMER: Fitzgeralds Las Vegas, Inc., a Nevada
Corporation
CUSTOMER'S INTEREST
IN PREMISES: Fee Owner
ADDRESS OF PREMISES: 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000
PROJECTED COMMENCEMENT DATE: August 1, 2000
DURATION OF INITIAL TERM: 20 Years
CONTRACT CAPACITY: 500 Tons of chilled water Capacity
ESTIMATED TOTAL USAGE: 1,284,000 Ton-Hours
INITIAL CONTRACT CAPACITY
CHARGE: $[10,583.33] per month. This charge
shall be adjusted from time to time in
accordance with the terms of the Chilled
Water Service Agreement.
INITIAL CONSUMPTION CHARGE: S[0.131] per Ton-Hour of chilled
water service. This charge shall be
adjusted from time to time in accordance
with the terms of the Chilled Water Service
Agreement.
CONTRACT FACILITY CHARGE: $[1,808.58] per month. This charge
shall be fixed over the first ten (10) year
period of the initial twenty (20) year term
of the Chilled Water Service Agreement and
terminate at the conclusion of the first
ten (10) years.
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NOTICES: All notices and other communications shall
be addressed as follows:
If to Supplier to:
e.three Custom Energy Solutions, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000
Attn: Executive Director - Sales
If to Customer to:
Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Director of Finance
This Cover Page is an integral part of the Chilled Water Service Agreement and
its terms are incorporated into such Agreement by reference.
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TABLE OF CONTENTS
Chilled Water Service Agreement ........................................................2
2. Term ...................................................................................3
2.1 Commencement Date ..............,...................................................3
2.2 Initial Term .......................................................................3
3. Charges and Adjustments ................................................................3
3.1 Monthly Contract Capacity Charge ...................................................3
3.2 Consumption Charge, ................................................................3
3.3 Facility Charge ....................................................................3
3.4 Adjustments ........................................................................4
3.4.1 Contract Capacity Charge ....................................................4
3.4.2 Consumption Charge ..........................................................5
3.4.3 Facility Charge .............................................................5
3.5 Effects of Changes of Law ..........................................................5
3.6 Post-Filing Payment Obligations ....................................................6
4. Payment Terms ..........................................................................6
4.1 Invoices ...........................................................................6
4.2 Default Rate Interest .............................................................6
5. Installation Maintenance and Ownership of Energy Transfer Station, Connection Equipment
and Customer Cooling Equipment .........................................................7
5.1 Installation of Equipment .........................................................7
5.2 Location of Equipment ..............................................................7
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5.3 Maintenance of Energy Transfer Station..............................................7
5.4 Connection Equipment; Customer Cooling Equipment ...................................7
6. Removal of Refrigerants and Existing Chiller Equipment .................................7
6.1 Refrigerants .......................................................................7
6.2 Existing Chiller Equipment..........................................................8
6.3 Removal of Refrigerants and Existing Chiller Equipment .............................8
6.4 Title ..............................................................................8
6.5 New Equipment ......................................................................8
7. Rights of Access .......................................................................8
7.1 Generally ..........................................................................8
7.2 Protection of Energy Transfer Station ..............................................8
8. Insurance Requirements .................................................................9
9. Events of Default ......................................................................9
9.1 Supplier Default ...................................................................9
9.1.1 Performance Failures and Service Default.....................................9
9.1.2 Supplier Default ............................................................10
9.2 Customer Default ...................................................................10
9.2.1 Failure to Pay ..............................................................10
9.2.2 Failure to Perform Other Obligation..........................................10
10. Planned Maintenance; Other Service Interruptions........................................11
10.1 Planned Maintenance................................................................11
10.2 Other Interruptions................................................................11
11. Force Majeure Events....................................................................11
(ii)
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12. Remedies Following Default..............................................................12
12.1 Customer's Remedies upon Occurrence of a Performance Failure Default ..............12
12.2 Customer's Remedies upon Occurrence of a Supplier Default..........................12
12.2.1 Abatement ..................................................................12
12.2.2 Termination ................................................................12
12.2.3 Other Rights and Remedies...................................................13
12.3 Supplier's Remedies upon Customer Default .........................................13
12.3.1 Discontinue of Performance..................................................13
12.3.2 Termination ................................................................13
12.3.3 Other Rights and Remedies...................................................13
12.4 No Consequential Damages...........................................................13
13. Effect of Termination of Agreement......................................................14
13.1 Payment; No Further Obligations....................................................14
13.2 Disconnection .....................................................................14
14. Indemnification ........................................................................14
14.1 Indemnification by Supplier .......................................................14
14.2 Indemnification by Customer .......................................................14
14.3 Notice of Claims ..................................................................15
14.4 Amount of Claims ..................................................................15
14.5 Defense of Action .................................................................15
14.6 Survival of Provisions ............................................................15
15. Miscellaneous Provisions ...............................................................16
15.1 Notices ...........................................................................16
15.2 Assumption of Obligations Change in Ownership .....................................16
15.3 Memorandum of Agreement Informational Financing Statement .........................17
15.4 Landlord Consent Agreement.........................................................17
(iii)
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15.5 Confidential Information...........................................................17
15.6 Successors and Assigns.............................................................18
15.7 Entire Agreement ..................................................................18
15.8 Amendments to Agreement ...........................................................18
15.9 Waivers; Approvals ................................................................18
15.10 Partial Invalidity ...............................................................18
15.11 Executions in Counterparts .......................................................19
15.12 Governing Law ....................................................................19
15.13 No Third Party Rights ............................................................19
15.14 Dispute Resolutions ..............................................................19
(iv)
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LIST OF EXHIBITS
Exhibit A - Legal Description of Premises
Exhibit B - Insurance Requirements
Exhibit C - Description of Existing Chiller Equipment
Exhibit D - Installation, Operation and Maintenance Specifications
Exhibit E - Form of Memorandum of Agreement
Rider Regarding Renewal Term
Rider Regarding Miscellaneous Issues
(v)
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CHILLED WATER SERVICE AGREEMENT
THIS CHILLED WATER SERVICE AGREEMENT is dated as of December 10, 1999,
by and between e.three CUSTOM ENERGY SOLUTIONS, LLC, a Nevada limited-liability
company (the "Supplier"), and the customer (the "Customer") identified on the
Cover Page (this and all other capitalized terms used in this Agreement shall
have the meanings ascribed to those terms in Appendix A attached to this
Agreement).
RECITALS:
A. Customer possesses an interest in the Premises, which interest
is described more fully on the Cover Page.
B. Customer desires to purchase from Supplier, and Supplier desires
to provide to Customer, chilled water service, at the delivery
point, chilled water to meet the customers chilled water needs
in the Premises, on the terms and subject to the conditions set
forth in this Agreement.
C. Customer has acknowledged the possibility that it will file a
Chapter 11 Petition during the Initial Term.
D. Customer has fully evaluated the benefits it would continue to
derive under this Agreement after filing a Chapter 11 Petition,
and has determined that it would be in the best interest of
Customer to assume this Agreement under Section 365(a) during
the administration of its Reorganization case.
E. Customer and Supplier consider this Agreement and Lease
Agreement to be integral components of the overall contractual
relationship between them, and neither Customer nor Supplier
would be willing to enter into this Agreement without also
entering into the Lease Agreements and having both agreements
assumed by Customer under Section 365(a) during the
administration of its Reorganization Case.
F. Customer and Supplier are entering into the Agreement based on
Customer's agreement to assume the Lease Agreement, as well as
this Agreement, in a timely manner under Section 365(a) during
the administration of its reorganization Case.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Supplier and Customer
agree as follows:
1A. The Customer agrees that it will purchase all of its future chilled
water requirements for the Premises from the Supplier and shall provide
the Supplier with not less than thirty (30) days prior written notice of
any expansion of the Premises or the construction of new Premises,
structures or other facilities owned, leased or operated by the Customer
that will require additional chilled water services. In the event that
any additional Customer requirement for
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chilled water requires modification, expansion or improvements to the
Facility, taking into account all obligations of Supplier to provided
chilled water, Supplier, in Supplier's sole and absolute discretion, may
reject Customer's request for additional chilled water service and this
Agreement, as amended from time to time, shall continue in full force.
1B. Chilled Water Service. Supplier agrees to supply Customer with
chilled water service up to the Contract Capacity. The specifications
for such service, including the temperature are set forth in the
Installation, Operation and Maintenance ("IOM") Specifications on
Exhibit D. The chilled water provided to Customer pursuant to this
Agreement shall be used by Customer exclusively to reduce the ambient
temperature within the Premises. Customer shall be responsible for and
control the temperature levels of all space within the Premises as set
forth on Exhibit D.
2. Term.
2.1 Commencement Date. The Commencement Date shall be the date
on which Supplier is ready and able to begin supplying Customer with the
chilled water service in accordance with the terms of this Agreement,
provided that such date shall not be later than the Projected
Commencement Date unless otherwise agreed by Supplier and Customer. If
the Commencement Date fails to occur by September 1, 2000 for any reason
other than the occurrence of a Force Majeure Event or a delay caused by
Customer, then Customer may terminate this Agreement upon not less than
five days prior written notice to Supplier given at any time thereafter
and prior to the earlier of the Commencement Date or the 60th day
following the Projected Commencement Date; however, such failure shall
not constitute a Supplier Default and Customer's sole remedy as a result
of such failure shall be the termination of this Agreement as aforesaid.
2.2 Initial Term. The Initial Term of this Agreement commences
on Commencement Date and continues for the period specified on the Cover
Page, unless terminated earlier pursuant to the terms of this Agreement.
3. Charges and Adjustments.
3.1 Monthly Contract Capacity Charge. Customer shall pay to
Supplier monthly during the term of this Agreement the Contract Capacity
Charge for Supplier's undertaking to supply chilled water service up to
the Contract Capacity.
3.2 Consumption Charge. Customer shall pay to Supplier the
monthly Consumption Charge for chilled water service actually consumed
by Customer during such month.
3.3 Facility Charge. Customer shall pay to Supplier the monthly
Facility Charge for connection to the Facility used by the Supplier to
provide chilled water service to the Customer for the first ten (10)
years of the Initial Term, after which time the Facility Charge is
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no longer due.
3.4 Adjustments.
3.4.1 Contract Capacity Charge. On each annual anniversary of
the Commencement Date, the Contract Capacity Charge shall be increased
to the sum of the following:
(i) the initial Contract Capacity Charge, plus
(ii) the product of (A) the initial Contract Capacity Charge,
multiplied by (B) the percentage increase, if any, in
the Consumer Price Index from the calendar month
immediately preceding the month in which the
Commencement Date occurs to the calendar month
immediately preceding the month in which the adjustment
to the Contract Capacity Charge is to occur, but in no
event to exceed three percent (3%) per annum.
(iii) If during any one-hour period during the term of this
Agreement, the Customer's requirement for chilled water
exceeds the Contract Capacity then in effect, then for
the next 3 (three) months the Contract Capacity and
Contract Capacity Charge shall be adjusted to an amount
equal to the Customer's peak use ("Temporary Demand
Adjustment"). At the expiration of such three (3) month
period, and provided that Customer's peak use has not
exceeded the Contract Capacity at any time during such
three (3) month period, the Temporary Demand Adjustment
shall expire and the Customer's Contract Capacity and
Contract Capacity Charge shall revert to the amounts in
effect immediately prior to the Temporary Demand
Adjustment, subject, however, to continuing adjustments
pursuant to this Agreement. In the event that the
Customer's actual capacity requirement exceed Contract
Capacity more than three (3) times within twelve
consecutive calendar month, the Contract Capacity and
Contract Capacity Charge shall be adjusted to the
highest actual capacity requirement within the preceding
twelve calendar months.
The foregoing adjustment shall in no event result in a decrease in the
Contract Capacity Charge in any year. The Contract Capacity Charge, if
adjusted as aforesaid, shall remain unchanged until it is adjusted again
pursuant to the terms of this Section or Section 3.4 below.
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3.6 Post-Filing-Payment Obligations. Any payment obligations
which Customer incurs under this Agreement during the pendency of a
Reorganization Case shall be deemed administrative expenses under
Section 503(b)(1) in such Reorganization Case.
4. Payment Terms.
4.1 Invoices. Beginning on the Commencement Date, Supplier shall
deliver to Customer monthly invoices reflecting all amounts then owing
by Customer. The Contract Capacity Charge and the Facility Charge shall
be prorated for partial first and last months within the term of this
Agreement and shall be due and payable each month in advance. The
Consumption Charge shall be due and payable each month in arrears.
Payment shall be due in full, on or before the 30th day following the
date of each invoice. Customer shall not be permitted to setoff any
amounts owing by Customer to Supplier against any amounts owing by or
claimed to be owing by Supplier to Customer or otherwise reduce any
amounts owing by Customer to Supplier; provided, however, that if
Customer provides Supplier with written notice of its good faith belief
that a Consumption Charge set forth on an invoice from Supplier is
incorrect within fifteen (15) days after receipt of such invoice, then
Customer may withhold the payment of the disputed portion of such
Consumption Charge; provided, however, that at no time may Customer
withhold payment of Consumption Charges exceeding $5,000 in the
aggregate, nor may Customer withhold payment of any amounts that are not
in dispute. Notwithstanding the foregoing, as long as Customer is the
landlord under that certain Lease dated as of December 10, 1999 between
Customer, as landlord, and Supplier, as tenant and its permitted
assignees (as amended, restated, modified or supplemented and in effect
from time to time, the "Lease"), Customer may offset any amounts due
hereunder in satisfaction of any "Rent" (as defined in the Lease) which
is due under the Lease. If Customer fails to pay any portion of the
Consumption Charges pursuant to the terms of the penultimate preceding
sentence, the parties shall proceed to resolve such dispute pursuant to
Section 15.14, and no Customer Default shall be deemed to exist because
of such failure of payment during such period. Upon resolution of such
dispute pursuant to Section 15.14, Customer shall promptly (and in any
event within fifteen (15) days following the resolution of such
dispute), pay any amount determined to be owing to Supplier in respect
of such dispute. In the event that resolution of such dispute
establishes that Supplier owes any additional amount to Customer beyond
the amount which has been withheld pending resolution of such dispute,
Supplier shall promptly (and in any event within fifteen (15) days
following the resolution of such dispute) pay such amount to Customer.
4.2 Default Rate Interest. (i) Any amounts owing by Customer to
Supplier pursuant to the terms of this Agreement and not paid when due
(or, if applicable pursuant to resolution of a dispute as provided in
Section 4.1 and 15.14, within five Business (5) days after resolution of
such dispute) shall thereafter bear interest until paid at a rate equal
to the lesser of one and one-half percent (1.5%) per month or the
highest rate permitted by law, whichever is less, and such interest
shall be due and payable upon receipt of Supplier's invoice. Payment of
such interest is not Supplier's sole remedy for the failure of Customer
to make timely payments
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under this Agreement. All such interest shall be calculated using a year
of 365 or 366 days (as applicable) and actual days elapsed.
(ii) Any amounts owing by Supplier to Customer pursuant to the
terms of the final sentence of Section 4.1 and not paid within five
Business (5) days after resolution of the applicable dispute shall
thereafter bear interest until paid at a rate equal to the lesser of one
and one-half percent (1.5%) per month or the highest rate permitted by
law, whichever is less, and such interest shall be due and payable upon
receipt of Customer's invoice. All such interest shall be calculated
using a year of 365 or 366 days (as applicable) and actual days elapsed.
5. Installation, Maintenance and Ownership of Energy Transfer Station,
Connection Equipment and Customer Cooling Equipment.
5.1 Installation of Equipment. Supplier shall install the
Equipment in accordance with the IOM Specifications. Customer shall
cooperate with Supplier to the extent necessary to facilitate the
installation of the Equipment in a timely, safe and efficient manner.
The Energy Transfer Station shall remain the personal property of
Supplier and shall not be deemed a fixture of the Premises.
5.2 Location of Equipment. Customer shall provide a safe and
secure space within the Premises that is reasonable and appropriate for
the installation, inspection, testing, servicing, maintenance,
operation, replacement and removal of the Equipment, which space shall
include the location(s) described in the IOM Specifications and be
satisfactory to Supplier.
5.3 Maintenance of Energy Transfer Station. Supplier shall
maintain the Energy Transfer Station during the term of this Agreement,
at Supplier's sole cost and expense, in accordance with IOM
Specifications, provided that if the Energy Transfer Station is damaged
or destroyed as a result of the acts of Customer or its agents,
employees, tenants, customers, contractors or other Persons for whom
Customer is responsible, then Customer shall be liable for the cost of
the required repair or replacement.
5.4 Connection Equipment; Customer Cooling Equipment. Customer
shall maintain the Connection Equipment and the Customer Cooling
Equipment during the term of this Agreement, at Customer's sole cost and
expense, unless Customer has executed a separate agreement with Supplier
to provide such maintenance.
6. Removal of Refrigerants and Existing Chiller Equipment
6.1 Refrigerants. If Customer requests Supplier to remove the
Refrigerants from the Premises, and if Supplier notifies Customer in
writing that it has agreed to do so, Supplier shall remove said
Refrigerants within 90 days after the date of Supplier's notice, at no
cost to Customer.
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6.2 Existing Chiller Equipment. If Customer requests Supplier to
remove the Existing Chiller Equipment from the Premises, and if Supplier
notifies Customer in writing that it has agreed to do so, Supplier shall
remove the Existing Chiller Equipment from Premises within 180 days
after the date of Supplier's notice, at no cost to Customer.
6.3 Removal of Refrigerants and Existing Chiller Equipment. If
Supplier is not requested by Customer to remove the Refrigerants and
Existing Chiller Equipment pursuant to Sections 6.1 and 6.2 above, or if
Supplier has been requested to remove the same but does not elect to do
so, then Customer shall be required to remove the Refrigerants and the
Existing Chiller Equipment from the Premises on or before the First
anniversary of the Commencement Date. Customer hereby agrees that if
chilled water service is being provided by Supplier in accordance with
the terms of this Agreement, Customer shall not use the Existing Chiller
Equipment (prior to its removal) to provide cooling service for the
Premises without Supplier's prior written consent.
6.4 Title. Customer hereby covenants that upon Supplier's
removal of the Refrigerants and/or Existing Chiller Equipment pursuant
to Sections 6.1 and 6.2, title to the Refrigerants and/or Existing
Chiller Equipment shall pass to Supplier free and clear of all rights of
and liens and other claims by Customer and other third parties, and
Supplier shall be entitled to retain all proceeds received upon the
disposition of such Refrigerants and/or Existing Chiller Equipment.
6.5 New Equipment. Within fourteen (14) days after the Effective
Date of the Lease, Supplier shall at Supplier's sole cost and expense
procure a new Lockinvar Boiler (the "Boiler") for Customer. Customer
shall be responsible for ordering and installing the Boiler and Customer
shall be the owner of the Boiler.
7. Rights of Access.
7.1 Generally. Commencing on the date of this Agreement,
Supplier and its employees, agents, contractors and representatives
shall have a non-exclusive right of access to and through the Premises
at all times to the extent reasonably necessary for the convenient and
efficient exercise and performance of Supplier's rights, duties and
obligations under this Agreement, including the installation, testing,
maintenance, operation, repair, replacement and removal of the Equipment
and maintenance and operation of the Customer's Existing Chiller
Equipment. Supplier agrees to coordinate such activities with Customer
so as to minimize disruption to Customer's business to the extent
reasonably practicable.
7.2 Protection of Energy Transfer Station. Neither Customer nor
its agents, employees. tenants, customers, contractors or other Persons
under its control shall authorize or permit any Person (other than a
duly authorized employee or agent of Supplier) to operate, maintain,
alter or otherwise have access to the Energy Transfer Station, any
component of the Energy Transfer Station or other property of Supplier
located on or in the Premises, or to break
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or replace any seal or lock of Supplier, or to alter or interfere with
the operation of meters or Supplier's connection or metering equipment,
or any other equipment (other than the Connection Equipment) installed
by Supplier on the Premises. Subject to the foregoing sentence, Customer
and its agents, employees, tenants, customers, contractors and any other
Persons under its control may have access to the portions of the
Premises containing the items referred to in the foregoing sentence for
reasonable inspection thereof and for other unrelated purposes;
provided, however, that if at any time Customer reasonably believes that
action with respect to the aforementioned equipment or property is
necessary to prevent imminent harm to persons or property, then such
access shall be permissible if and only if Customer takes only those
actions with respect to such equipment or property, as are reasonably
necessary to prevent said imminent harm and Supplier is promptly
notified of such access and other action taken by Customer.
8. Insurance Requirements; Financial information. The respective
insurance requirements for Supplier and Customer are set forth in
Exhibit B attached hereto, and the insurance described in Exhibit B
shall be maintained throughout the term of this Agreement. The liability
of each party under this Agreement to the other party shall not be
diminished by the insurance limitations set forth in said Exhibit B. All
insurance policies required by this Section shall provide that such
policies may not be canceled or terminated without 30 days prior written
notice to both Customer and Supplier.
9. Events of Default
9.1 Supplier Defaults.
9.1.1 Performance Failures and Service Default. A
"Performance Failure" shall occur if, at any time after the
Commencement Date and for any reason other than a Force Majeure
Event or as permitted by Sections 10.1 and 10.2 hereof, (i)
Supplier shall fail to provide chilled water service as required
by this Agreement up to a lesser of the Contract Capacity or the
Tons of chilled water service then required by Customer and (ii)
such failure shall continue for a period of six (6) consecutive
hours or longer and (iii) during such period Customer is ready,
willing and able to receive such chilled water service and (iv)
Supplier's failure is not otherwise the result of Customer's
acts or omissions or those of its agents, employees, tenants,
customers or contractors or of any other Persons for whom
Customer is responsible or over which Customer has control.
Promptly upon becoming aware of a Performance Failure (whether
by notice thereof from Customer or by Supplier's monitoring of
its systems or otherwise) Supplier shall:
(i) immediately seek to determine the cause of such
Performance Failure and shall advise Customer of Supplier's
conclusions as to such cause as quickly as possible and provide
Customer with a corrective action plan;
(ii) commence implementation of such corrective action
plan,
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using all reasonable efforts to correct or cure such Performance
Failure in the shortest period of time which is reasonable in
the circumstances (taking into account the nature and cause of
the Performance Failure);
(iii) if Supplier believes that correcting or curing
such Performance Failure requires or can reasonably be
anticipated to last more than eight (8) consecutive hours, and
Supplier and Customer agree that the Premises cannot be operated
in a reasonably normal manner due to such ongoing Performance
Failure, Supplier shall initiate (at Supplier's expense)
procuring of substitute cooling services to be brought to the
site and put into operation as quickly as possible.
If any Performance Failure, which is not cured by Supplier as set forth
in Section 9.1.1 (iii) above, continues for an additional period of
seventy-two (72) consecutive hours or more, it shall thereupon be deemed
a "Service Default."
9.1.2. Supplier Defaults. The occurrence at any time of any of
the following events shall constitute a "Supplier Default":
(i) a Service Default; or
(ii) the failure of Supplier to perform or cause to be performed
any obligation required to be performed by Supplier under this Agreement
other than a Service Default; provided, however, that if such failure by
its nature can be cured, then Supplier shall have a period of 30 days
after written notice from Customer of such failure to cure the same and
a Supplier Default shall not be deemed to exist during such period, and
provided further, that if Supplier commences to cure such failure during
such period and is diligently and in good faith attempting to effect
such cure, said period shall be extended for 30 additional days.
9.2 Customer Default. The occurrence at any time of any of the following
events shall constitute a "Customer Default":
9.2.1 Failure to pay. The failure of Customer to pay any amounts
owing to Supplier under this Agreement on or before the 30th day
following the date when due and payable (or, if such amount has been
determined to be payable pursuant to resolution of a dispute in
accordance with Sections 4.1 and 15.14. within five (5) business days
after resolution of such dispute.).
9.2.2 Failure to Perform Other Obligations. The failure of
Customer to perform or cause to be performed any other obligation
required to be performed by Customer under this Agreement; provided,
however, that if such failure by its nature can be cured, then Customer
shall have a period of 30 days after written notice from Supplier of
such failure to cure the same and a Customer Default shall not be deemed
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to exist during such period, and provided further, that if
Customer commences to cure such failure during such period and
is diligently and in good faith attempting to effect such cure,
said period shall be extended for 30 additional days.
10. Planned Maintenance; Other Service Interruptions.
10.1 Planned Maintenance. Supplier shall have the right to
interrupt or reduce Customer's chilled water service for a reasonable
duration, (which shall not exceed eight (8) consecutive hours unless
agreed upon in advance by Customer), upon prior notice to Customer, for
the purpose of performing ordinary maintenance, repairs, replacements,
connections or changes (on or off the Premises) of or to the Energy
Transfer Station or any other equipment or apparatus which is required
by good engineering and operating practices or by manufacturers'
specifications. Supplier shall diligently attempt to restore service as
soon as is reasonably possible and, in order to minimize interference
with the normal operations of the Premises, Supplier shall coordinate
with Customer to schedule such interruptions and reductions during
non-summer months and during non-peak business hours (11:00 p.m. to 7:00
a.m.) to the extent reasonably practicable.
10.2 Other Interruptions. Supplier shall have the right to
interrupt or reduce Customer's chilled water service for a duration
determined necessary by Supplier, in its good faith judgment, without
prior notice to Customer, if (i) a Force Majeure Event has occurred that
causes or requires such interruption or reduction of such service, or
(ii) the Customer Cooling System, the Connection Equipment or the
Premises has become dangerous or defective in Supplier's good faith
judgment and, as a result thereof, Supplier believes that such
interruption or reduction is necessary to prevent injury to other
Persons or damage to or destruction of property, including but not
limited to, any component of the Energy Transfer Station or Supplier's
other equipment and piping or to prevent the interruption or reduction
of Supplier's service to its other customers. In the event of any such
interruption or reduction of service, Supplier shall diligently attempt
to restore service as soon as it is reasonably possible in the
circumstances. Supplier shall notify Customer of the interruption, the
anticipated duration of the interruption and the reason therefore as
soon as possible after the interruption or reduction.
11. Force Majeure Events. If either party to this Agreement is prevented
from or delayed in performing any of its obligations under this
Agreement by reason of a Force Majeure Event, such party shall notify
the other party in writing as soon as practicable after the onset of
such Force Majeure Event and shall be excused from the performance of
its obligations under this Agreement to the extent such Force Majeure
Event has interfered with such performance. The party whose performance
under this Agreement is prevented or delayed as the result of a Force
Majeure Event shall use reasonable efforts to remedy its inability to
perform. If a party's failure to perform its obligations under this
Agreement is due to a Force Majeure Event, then such failure shall not
be deemed a Supplier Default or a Customer Default. If Supplier fails to
provide the chilled water service required by this Agreement due to the
occurrence of a Force Majeure Event, Customer shall be entitled to an
abatement of the Contract Capacity Charge and the Consumption Charge
from the date on which such failure commenced through the date
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on which such failure ceases or this Agreement is terminated, and the term of
this Agreement shall be extended by a period of time equal to the period of such
abatement.
12. Remedies Following Default.
12.1 Customer's Remedies upon Occurrence of a Performance
Failure Default. If a Performance Failure occurs and Supplier and
Customer agree that the Premises cannot be operated in a reasonably
normal manner due to such ongoing Performance Failure, and if Supplier
does not thereupon initiate procuring of substitute cooling services to
be brought to the site and put into operation as quickly as possible,
then Customer, at Supplier's expense, shall have the right to take any
action reasonably intended to procure substitute cooling services to be
brought to the site and put into operation as quickly as possible to
correct or cure such failure. In the event that such Performance Failure
becomes a Service Default, the foregoing shall be in addition to the
rights of Customer provided for a Service Default. All costs and
expenses incurred by Customer in procuring such cooling services may be
deducted from any sums owing Supplier for the Contract Capacity Charge
and the Consumption Charge.
12.2 Customer's Remedies Upon Occurrence of a Supplier Default.
12.2.1 Abatement. If a Service Default described in
Section 9.1.2 above has occurred, Customer shall be entitled to
an abatement of the Contract Capacity Charge and the Consumption
Charge from the date on which such Service Default commenced
through the date on which such Service Default ceases to exist,
or (if applicable) is waived or this Agreement is terminated.
Notwithstanding anything in this Agreement, at law or in equity
to the contrary, abatement of the Contract Capacity Charge and
the Consumption Charge specified in this Section 12.2.1 shall be
Customer's sole and exclusive remedy upon the occurrence of a
Service Default described in Section 9.1.2 above, subject to
Customer's termination right under Section 12.2.2 below (and in
the event of such termination, the remedies set forth in Section
12.2.3 below).
12.2.2 Termination. If a Supplier Default has occurred
and continues for not less than thirty (30) consecutive days,
then Customer at any time thereafter may give Supplier a notice
of Customer's intent to terminate this Agreement, and if such
written notice is given and Supplier fails to correct or cure
such conditions by the close of business on the fifth (5th) day
after the date on which Customer gives Supplier such written
notice of Customer's intent to terminate this Agreement as a
result of such Supplier Default, then this Agreement shall
terminate and be of no further force or effect as of the close
of business on such fifth (5th) day; provided, however, that in
the case of a Service Default which cannot be cured within
thirty (30) days and Supplier has procured substitute cooling
services for the Premises, Customer may not terminate this
Agreement so long as Supplier is diligently and in good faith
attempting to cure such Service Default.
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12.2.3 Other Rights and Remedies.
(i) The remedies provided herein for a Performance Failure shall be
the exclusive remedies of Customer for such failure, unless and
until the same becomes a Service Default.
(ii) If any Service Default has occurred, then Customer's sole remedy
shall be abatement of charges as provided in Section 12.2.1,
unless such Service Default continues for a period permitting
Customer to terminate this Agreement pursuant to Section 12.2.2,
in which case, upon such termination, Customer may pursue any
and all legal rights or remedies available to it at law or in
equity, subject, however, to the limitations set forth in
Section 12.4 below.
(iii) If a Supplier Default which is not a Service Default has
occurred and continues for a period permitting Customer to
terminate this Agreement pursuant to Section 12.2.2, then, upon
such termination Customer may pursue any and all rights or
remedies available to it at law or in equity, subject, however,
to the limitations set forth in Section 12.4 below.
12.3 Supplier's Remedies upon Customer Default.
12.3.1 Discontinue of Performance. If any Customer Default has
occurred and is continuing, Supplier shall have the right, upon five (5)
days prior written notice to Customer, to immediately discontinue the
supply of chilled water service to Customer and disconnect all related
piping and connections following expiration of such five (5) day notice
period.
12.3.2 Termination. If a Customer Default has occurred and
continues for thirty (30) consecutive days, then Supplier at any time
thereafter may give Customer notice of Supplier's intent to terminate
this Agreement, and if such written notice is given, and if Customer
fails to correct or cure the conditions causing such Customer default
within five (5) days after the date on which the Supplier gives Customer
written notice of Supplier's intent to terminate this Agreement as a
result of such Customer Default, then this Agreement shall terminate and
be of no further force or affect as of the last day of such five (5) day
period.
12.3.3 Other Rights and Remedies. In addition to the rights and
remedies of Supplier set forth above, Supplier may pursue any and all
other rights or remedies available to it at law or in equity upon the
occurrence of a Customer Default, subject, however, to the limitations
set forth in Section 12.2 and 12.4 above and the notice requirements of
this Agreement.
12.4 No Consequential Damages. Nothing in this Agreement is intended to
cause either party to be, and neither party shall be, liable to the other party
for any lost business, lost
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profits or revenues (other than profits and revenues lost by Supplier directly
from Customer on account of a Customer Default) or other special or
consequential damages, all claims for which are hereby irrevocably waived by
Customer and Supplier. Notwithstanding the foregoing, third party claims against
either Supplier or Customer against which such party has a right of
indemnification pursuant to Section 14 below shall not be considered to be
consequential damages.
13. Effect of Termination of Agreement.
13.1 Payment; No Further Obligations. Subject to Section 12.3 above,
upon the termination or expiration of this Agreement, any amounts then owing
under this Agreement by a party to this Agreement to other party to this
Agreement shall become immediately due and payable, and the then future
obligations of Customer and Supplier under this Agreement shall be terminated
(other than the indemnity obligations set forth in Section 14 below). Such
termination shall not relieve either party from obligations accrued prior to the
effective date of termination or expiration.
13.2 Disconnection. As soon as reasonably practicable, but in no event
later than thirty (30) days, after the date on which this Agreement is
terminated or expires, Customer shall physically disconnect the Connection
Equipment and the Customer Cooling Equipment from the Energy Transfer Station.
Within thirty (30) days after such termination or expiration, Supplier shall
give Customer written notice of Supplier's intent to (a) remove from the
Premises any or all of the components of the Energy Transfer Station and
Supplier's other equipment, piping and other property installed or located on
the Premises, in which case Supplier shall have the right to do so within sixty
(60) days after such termination or expiration, and Customer shall provide
Supplier with access to the Premises as reasonably requested by Supplier to
allow Supplier to complete such removal, or (b) with Customer's written consent,
abandon any or all of such property to Customer and said property shall become
Customer's free and clear of any liens or encumbrances created by Supplier.
14. Indemnification.
14.1 Indemnification by Supplier. Supplier shall fully indemnify, save
harmless and defend each Customer Group Member from and against any and all
Expenses incurred by such Customer Group Member, including reasonable attorneys'
fees and costs, in connection with or arising from any claim by a third party
for physical damage to or physical destruction of property, or death of or
bodily injury to any Person, caused by (i) the gross negligence or willful
misconduct of Supplier or its agents or employees or others under Supplier's
control, or (ii) a Supplier Default; provided, however, that nothing in this
Section is intended to modify the limitation of Supplier's liability set forth
in Sections 12.1 and 12.3 above.
14.2 Indemnification by Customer. Customer shall fully indemnify, save
harmless and defend each Supplier Group Member from and against any and all
Expenses incurred by such Supplier Group Member, including reasonable attorneys'
fees and costs, in connection
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with or arising from any claim by a third party for physical damage to or
physical destruction of property, or death of or bodily injury to any Person,
caused by (i) the gross negligence or willful misconduct of Customer or its
agents or employees or others under Customer's control or (ii) a Customer
Default; provided, however, that nothing in this Section is intended to modify
the limitation of Customer's liability set forth in Section 12.3 above or
elsewhere in this Agreement.
14.3 Notice of Claims. Any Indemnified Party seeking indemnification
under this Section 14 shall deliver to the Indemnitor a Claim Notice describing
the facts underlying its indemnification claim and the amount of such claim, if
known at the time. A notice describing any action at law or in equity involving
an Indemnified Party shall be delivered promptly to the Indemnitor after the
such Indemnified Party receives notice that such action or suit has commenced;
provided, however, that failure to deliver such notice as aforesaid shall not
relieve the Indemnitor of its obligations under this Section 14, except to the
extent that such Indemnitor has been prejudiced by such failure.
14.4 Amount of Claim. The amount to which an Indemnified Party is
entitled under this Section 14 shall be determined by (i) a mutually
satisfactory written agreement between such Indemnified Party and the
Indemnitor, (ii) a final judgment or decree of any court of competent
jurisdiction, or (iii) any other means agreed upon by such Indemnified Party and
the Indemnitor.
14.5 Defense of Action. If requested by an Indemnified Party, the
Indemnitor shall assume on behalf of the Indemnified Party, and conduct with due
diligence and in good faith, the defense of such Indemnified Party with counsel
reasonably satisfactory to the Indemnified Party; provided, however, that if the
Indemnitor is a defendant in any such action and the Indemnified Party believes
that there may be legal defenses available to it which are inconsistent with
those available to the Indemnitor, the Indemnified Party shall have the right to
select separate counsel to participate in the defense of such action at the
Indemnitor's expense. If any claim, action, proceeding or investigation arises
as to which the indemnity provided for in this Section 14 applies, and the
Indemnitor fails to assume the defense of such claim, action, proceeding or
investigation after having been requested to do so by the Indemnified Party,
then the Indemnified Party may, at the Indemnitor's expense, contest or, with
the prior written consent of the Indemnitor, which consent shall not be
unreasonably withheld, settle such claim, action, proceeding or investigation.
All costs and expenses incurred by the Indemnified Party in connection with any
such contest or settlement shall be paid upon demand by the Indemnitor.
14.6 Survival of Provisions. The provisions of this Section 14 shall
survive the expiration or termination of this Agreement.
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15. Miscellaneous Provisions
15.1 Notices. All notices, communications and waivers under this
Agreement shall be in writing and shall be (i) delivered in person or (ii)
mailed, postage prepaid, either by registered or certified mail, return receipt
requested, or (iii) sent by overnight express courier, addressed in each case as
set forth on the Cover Page, or to any other address as to either of the parties
to this Agreement as such party shall designate in a written notice to the other
party to this Agreement. All notices sent pursuant to the terms of this Section
shall be deemed received (x) if personally delivered, then on the date of
delivery, (y) if sent by overnight, express courier, then on the next Business
Day immediately following the day sent, or (z) if sent by registered or
certified mail, then on the earlier of the third Business Day following the day
sent or when actually received.
15.2 Assumption of Obligations; Change in Ownership. Neither party shall
assign its interest or delegate its duties under this Agreement without the
prior written consent of the other party (which consent shall not be
unreasonably withheld), except:
(i) Supplier may assign its right, title and interest under this Agreement,
or any part thereof, to any direct or indirect wholly-owned subsidiary
of Sierra Pacific Resources, with prior written notice; and
(ii) Supplier may assign its right, title and interest in this Agreement to
any lender or lenders in connection with financing (or refinancing)
Supplier's right, title and interest in Supplier's chilled water
production and distribution facilities in downtown Las Vegas, Nevada;
and
Supplier may assign to any other Person the rights and delegate the obligations
of Supplier under this Agreement in connection with a concurrent sale of
Supplier's chilled water production and distribution facilities in downtown Las
Vegas, Nevada to such Person; if
(x) such other Person is duly licensed to operate such facilities by
all applicable Nevada state and local governmental authorities;
and
(y) such other Person has a long-term debt rating from Xxxxx'x
Investors' Service, Inc. and/or Standard & Poor's Ratings Group
at least equal to that of Supplier (or, if no such long-term
debt rating is available, is otherwise of financial strength
acceptable to Customer and Customer's lenders, acting in good
faith);
(z) such other Person acknowledges and accepts such assignment and
assumes Supplier's obligations in writing;
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and, in any such case, provided that such other Person must acknowledge
and accept such assignment and assume Supplier's obligations in writing.
(iii) Customer may assign its right, title and interest in this Agreement to
any lender or lenders to whom Customer provides a security interest or
lien in Customer's right, title and interest in the Premises in
connection with financing (or refinancing) the Premises; and
(iv) Customer may assign to any other Person the rights and delegate the
obligations of Customer under this Agreement if and only if Customer is
concurrently assigning or otherwise conveying its entire interest in the
Premises to such Person and
(x) such other Person is duly licensed to operate a casino and a
hotel by all applicable Nevada state and local governmental
authorities, and
(y) such other Person has a long-term debt rating from Xxxxx'x
Investor Service, Inc. and/or Standard & Poor's Rating Group at
least equal to that of Customer (or, if no such long-term debt
rating is available, is otherwise of financial strength
acceptable to Supplier and Supplier's lenders, acting in good
faith);
and, in any such case, provided that such other Person must acknowledge and
accept such assignment and assume Customer's obligations in writing.
15.3 Memorandum of Agreement; Informational Financing Statement.
Supplier shall have the right to record a memorandum of this Agreement in the
real estate records for the county in which the Premises is located, which
memorandum shall set forth or summarize the interest of Supplier in the Energy
Transfer Station and the Connection Equipment and the rights granted to Supplier
under this Agreement with respect to the Premises and shall otherwise be in a
form substantially similar to the form attached hereto as Exhibit E. Supplier
shall also have the right to file an informational financing statement with the
office of the Nevada Secretary of State.
15.4 Landlord Consent Agreement. As a condition precedent to Supplier's
obligations under this Agreement, if Customer is not the owner of the Premises
then Customer shall obtain from the owner of the Premises a consent to this
Agreement in a form substantially similar to the form attached hereto as Exhibit
F.
15.5 Confidential Information. Customer agrees to treat in confidence
the amount of the Contract Capacity Charge, Consumption Charge, and the Facility
Charge and the information contained in the IOM Specifications and any Riders
attached hereto. Such information shall not be communicated to any party other
than Customer's officers, directors, employees, agents, attorneys and
professional consultants to the extent such Persons need to know such
information, except to the extent disclosure of such information (i) is required
by
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law or governmental authority, (ii) is made pursuant to litigation between the
parties, (iii) is made to any lender or prospective lender to such party
(provided that such lender or prospective lender is requested in writing to keep
such information confidential), (iv) is made to a tenant of the Premises whose
lease with Customer requires such disclosure (provided that such tenant is
requested in writing to keep such information confidential), or (v) is made to a
Person under contract with the disclosing party, or to which the disclosing
party wishes to sell its business or property, which Person has given a
confidentiality undertaking which is substantially similar to this one. The
obligation of Customer to treat in confidence, and not to use, such information
shall not apply to any information which is or becomes available to the public
other than as a result of disclosure in breach of this Section.
15.6 Successors and Assigns. The rights, powers and remedies of each
party to this Agreement shall inure to the benefit of such party and its
successors and permitted assigns.
15.7 Entire Agreement. This Agreement (including the Exhibits hereto and
any Riders attached hereto) represents the entire agreement between the parties
to this Agreement with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous oral and prior written agreements.
15.8 Amendments to Agreement. This Agreement shall not be amended,
modified or supplemented without the written agreement of Supplier and Customer
at the time of such amendment, modification or supplement.
15.9 Waivers; Approvals. No waiver of any provision of this Agreement
shall be effective unless set forth in writing signed by the party making such
waiver, and any such waiver shall be effective only to the extent it is set
forth in such writing. Failure by a party to this Agreement to insist upon full
and prompt performance of any provision of this Agreement, or to take action in
the event of any breach of any such provision or upon the occurrence of any
Supplier Default or Customer Default, as applicable, shall not constitute a
waiver of any rights of such party, and, subject to the notice requirements of
this Agreement, such party may at any time after such failure exercise all
rights and remedies available under this Agreement with respect to such Supplier
Default or Customer Default. Receipt by a party to this Agreement of any
instrument or document shall not constitute or be deemed to be an approval of
such instrument or document. Any approvals required under this Agreement must be
in writing, signed by the party whose approval is being sought.
15.10 Partial Invalidity. In the event that any provision of this
Agreement is deemed to be invalid by reason of the operation of law, or by
reason of the interpretation of such provision by any administrative agency or
any court, Supplier and Customer shall negotiate an equitable adjustment in the
provisions of the same in order to effect, to the maximum extent permitted by
law, the purpose of this Agreement and the validity and enforceability of the
remaining provisions, or portions or applications thereof, shall not be affected
by such adjustment and shall remain in full force and effect.
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15.11 Execution in Counterparts. This Agreement may be executed
in counterparts, and all said counterparts when taken together shall
constitute one and the same Agreement.
15.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
15.13 No Third Party Rights. This Agreement is only for the
benefit of the parties to this Agreement, their successors and permitted
assigns and Persons expressly benefited by the indemnity provisions of
this Agreement. No other Person (including, without limitation, tenants
of the Premises) shall be entitled to rely on any matter set forth in,
or shall have any rights on account of the performance or
non-performance by any party of its obligations under, this Agreement.
15.14 Dispute Resolution. Customer and Supplier shall negotiate
in good faith and attempt to resolve promptly any dispute between them
which may develop under this Agreement; however, if Customer and
Supplier are unable to resolve any such dispute, then Customer and
Supplier jointly may request that such dispute be resolved by
arbitration in accordance with the provisions of the Commercial
Arbitration Rules of the American Arbitration Association. If Customer
and Supplier do not agree to submit such dispute to arbitration and are
not otherwise able to resolve such dispute, either Customer or Supplier
may bring such dispute to any court of competent jurisdiction for
resolution. The provisions of this Section 15.14 shall survive the
termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date set forth above.
E.THREE CUSTOM ENERGY SOLUTIONS, LLC, a
Nevada limited-liability company
FITZGERALDS LAS VEGAS, INC., a
Nevada Corporations
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx By: /s/ XXXXXXX X. XXXXXX
---------------------------- ---------------------------------
Title: Member, Board of Managers Name: Xxxxxxx X. Xxxxxx
--------------------------- -------------------------------
Title: Vice President/GM
------------------------------
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APPENDIX A
DEFINITIONS
The following terms shall have the meanings set forth below:
"Actual Capacity Requirement" means, the maximum number of Tons of chilled
water service as metered over a 60-minute period at the Energy Transfer Station.
"Affiliate" means, with respect to any Person, any other Person, which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Agreement" means this Chilled Water Service Agreement, the Cover Page and
all exhibits, appendices and riders attached hereto, and any amendments or
modifications made thereto from time to time.
"Bankruptcy Code" means Title 11 of the United States Code.
"Business Day" means a day on which commercial banks generally are open
for business in the City of Las Vegas, Nevada.
"Chapter 11" means Chapter 11 of the Bankruptcy Code.
"Claim Notice" means a notice by a Customer Group Member or a Supplier
Group Member seeking indemnification pursuant to Section 14 of this Agreement.
"Commencement Date" shall have the meaning ascribed to such term on the
Cover Page of this Agreement.
"Connection Equipment" means all equipment and piping necessary to connect
the Customer Cooling System to the heat exchanger assembly included in the
Energy Transfer Station, as more fully described in the IOM Specifications. The
Energy Transfer Station is not a part of the Connection Equipment or the
Customer Cooling Equipment.
"Consumer Price Index" means the U.S. City Average Consumer Price Index,
all items other than food and energy, not seasonably adjusted, as it appears in
the "News" as published monthly by the United States Department of Labor, Bureau
of Labor Statistics; provided, however, that if said Consumer Price Index shall
cease to exist or is changed, then the term "Consumer Price Index" shall mean
such other or similar index or formula as Supplier reasonably selects to measure
change in the purchasing power of the U.S. dollar.
"Consumption Charge" means the monthly charge payable by Customer to
Supplier for Ton-Hours of chilled water service provided to Customer during each
month of the term of this Agreement, as the same may be adjusted from time to
time pursuant to the terms of this Agreement, the initial amount of which is
specified on the Cover Page.
27
"Contract Capacity" means the number of Tons of chilled water service
specified on the Cover Page that Supplier is obligated by this Agreement to make
available to Customer from and after the Commencement Date through the date on
which this Agreement expires or is terminated.
"Contract Capacity Charge" means the monthly charge payable by Customer to
Supplier for making chilled water service up to the Contract Capacity available
for use by Customer pursuant to this Agreement, as the same may be adjusted from
time to time pursuant to the terms of this Agreement, the initial amount of
which is specified on the Cover Page. Customer's obligation to pay the monthly
Contract Capacity Charge for chilled water service up to the Contract Capacity
is unrelated to the amount of chilled water service actually required by
Customer.
"Cover Page" means the Cover Page attached to and made a part of this
Agreement, as the same may be amended from time to time.
"Customer Cooling Equipment" means the HVAC system serving the Premises,
including piping, pumps and other equipment, owned by Customer that are or will
be used by Customer to cool space within the Premises after the Commencement
Date.
"Customer Default" shall have the meaning ascribed to such term in
Section 9.2 of this Agreement.
"Customer Group Member" means Customer and its Affiliates, and the
directors, officers, agents, employees, successors and assigns of each of them.
"Delivery Point" means the point of connection between the Connection
Equipment and the Energy Transfer Station, at which point Supplier delivers
chilled water service to Customer.
"Design Pressure" means the design pressure shall be the maximum allowable
working pressure as defined in ASME B31.1 Power Piping Code.
"Distribution Lines (pipes)" means The network of main piping lines
connecting the Chilled Water Services plant to the Service Line Piping to the
customer Premises.
"Energy Transfer Station" (ETS) means the equipment and related piping and
apparatus between Supplier's Service Lines and the Connection Equipment. The ETS
is an indirect connection to the customer's system chilled water system. It
includes, without limitation, a heat exchanger assembly or equivalent device,
piping, valves, metering equipment and controls and additional equipment, if
any, installed by Supplier on the Premises pursuant to the terms of this
Agreement for use in providing chilled water service to Customer, and all
replacements and additions from time to time. The Connection Equipment or the
Customer Cooling Equipment are not a part of the Energy Transfer Station.
"Equipment" means the Energy Transfer Station and the Connection
Equipment, including associated piping, metering and other equipment.
ii
28
"Existing Chiller Equipment" means all of Customer's compressors, chillers
and related equipment used by Customer prior to the Commencement Date to cool
space within the Premises, a list of which is attached hereto as Exhibit C.
"Expenses" means any and all costs and reasonable expenses incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified against under this Agreement
(including, without limitation, court filing fees, court costs, arbitration fees
or costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals), and any other losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
deficiencies or other charges.
"Facility Charge" means a fixed monthly charge payable by the customer to
the supplier for making the chilled water service available to the customer.
"Force Majeure Event" means acts of God, war, civil commotion, embargoes,
strikes, epidemic, fires, cyclones, droughts, floods, emergencies, labor,
production or transportation difficulties or accidents to or involving
machinery, equipment or lines of pipe, shortages of materials, power, fuel,
equipment, transportation or labor (or the inability to obtain the same without
litigation or paying penalties, premiums or unusual prices or otherwise agreeing
to unreasonable terms or conditions), or any governmental law, regulation (or
its interpretation), order, request, instruction or injunction, or failure to
provide or cancellation of rights-of-way, permits, licenses or other
authorization, whether valid or invalid, or any other cause whether or not
similar to the foregoing, beyond the reasonable control of a party hereto,
provided that a Force Majeure Event shall not include events caused by the gross
negligence or willful misconduct of the party claiming the Force Majeure Event.
"Heat Exchanger (HX)" The equipment used to change the temperature of
water in one system by having it pass by another system. Heat exchangers are
being used in the chilled water service plant between different systems as well
as at Premises interface facilities.
"Indemnified Party" means a Customer Group Member or a Supplier Group
Member seeking indemnification pursuant to Section 14 of this Agreement.
"Indemnitor" means the Person from which indemnification is sought
pursuant to Section 14 of this Agreement.
"Initial Term" shall mean the initial term of this Agreement, the duration
of which is set forth on the Cover Page.
"IOM Specifications" means the Installation, Operation and Maintenance
Specifications attached hereto as Exhibit D, as the same may be amended from
time to time by the parties to this Agreement. In the event of any conflict
between the provision of the IOM Specifications and the other provisions of this
Agreement, such other provisions shall govern.
iii
29
"Lease Agreement" means that certain Lease, made as of the 10th day of
December 1999 by and between Customer as "Landlord" and Supplier as "Tenant"
relating to the lease of premises to be used for a facility that produces and
distributes chilled water to customers in downtown Las Vegas.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
governmental authority or regulatory body.
"Premises" means the building[s] located on the property at the address
stated on the Cover Page alongside the caption "Address of Premises" and legally
described on Exhibit A attached to this Agreement.
"Producer Price Index" means the Producer Price Index for the Western
South Central Region for commercial electric power, product code 4981-123, not
seasonably adjusted, as it appears in the Producer Price Index published by the
United States Department of Labor, Bureau of Labor Statistics; provided,
however, that if said Producer Price Index shall cease to exist or is changed,
then the term "Producer Price Index" shall mean such other or similar index or
formula as Supplier reasonably selects to measure change in the price for
commercial electric power.
"Refrigerants" means all chlorofluorocarbons and other refrigerants
contained in, or owned and held by Customer for future use in, the Existing
Chiller Equipment.
"Reorganization Case" means a case commenced under Chapter 11 by the
filing of a Chapter 11 Petition.
"Return Point" means the point of connection between the Energy Transfer
Station and Supplier's chilled water delivery system, at which point chilled
water returns to Supplier's pipes after it has passed through the Energy
Transfer Station.
"Section 365(a)" means Section 365(a) of the Bankruptcy Code.
"Section 503(b)(1)" means Section 503(b)(1) of the Bankruptcy Code.
Service Line (pipe) - The service lines run from the branch fittings on
the main distribution pipes to the inside of the Premises wall. A set of
isolation valves and cathodic isolation flanges will be installed at the point
where the service line penetrates the Premises wall. The flanges represent the
point of delivery.
"Supplier Default" shall have the meaning ascribed to such term in Section
9.1 of this Agreement.
"Supplier Group Member" means Supplier and its Affiliates, and the
directors, officers, agents, employees, successors and assigns of each of them.
iv
30
"Tax" means any present or future tax (including any sales and use taxes),
levy, impost, duty, charge, assessment or fee of any nature (including interest,
penalties and additions thereto) that is imposed by any federal, state, local or
other taxing authority on chilled water service or equipment provided or used by
Supplier or on any aspect of such service, or on any payments made by Customer
to Supplier, under this Agreement, provided that Taxes shall not include general
federal and state taxes on Supplier's gross income.
"Ton" means refrigeration capacity equivalent to the cooling capacity of
one ton of ice melting in a period of twenty-four hours (at a rate of 12,000 BTU
per hour).
"Ton-Hour" means cooling service equivalent to 12,000 BTU of cooling,
measured as a function of the gallons of chilled water which pass through the
Energy Transfer Station and the temperature difference of the chilled water at
the Delivery Point and the Return Point, and calculated on the basis of the
aggregate BTU gain occurring.
v
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EXHIBIT A
Legal Description of Premises:
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
32
EXHIBIT B
Insurance Requirements(a) Supplier's Insurance. At all times during the
term of this Agreement, Supplier, at its sole expense, shall purchase and
maintain in full force and effect, the following insurance coverage:
(i) Workers' compensation coverage shall be at statutory limits
and shall comply with the applicable statutes for all
employees of Supplier who perform services at the site and in
connection therewith.
(ii) Commercial General Liability Insurance shall be written on a
combined single limit basis and shall be endorsed to provide
limits specifically for Supplier operations of
Bodily Injury and Property Damage $2,000,000 each occurrence
Personal Injury and Advertising
Liability $2,000,000 each occurrence
Products and Completed Operations
Aggregate $2,000,000 each occurrence
General Aggregate Limit other than
Products/Completed Operations $2,000,000 aggregate limit
(iii) Business Automobile Liability Insurance shall contain
combined single limits of:
Bodily Injury and Property Damage $1,000,000 each accident
Coverage shall apply to all owned, non-owned and hired
vehicles under the operation, maintenance or use of Supplier
in connection with this project.
(iv) Excess or Umbrella Liability Insurance coverage may be
written in a combination of layers which equal $10,000,000
per occurrence and in the annual aggregate. Coverage shall be
excess to those coverages listed in Subparagraphs (a)(ii)
through (a)(iii), above.
(v) All risk property insurance (including boiler and machinery
insurance) covering physical loss and damage to all
improvements forming part of the Premises, including all
machinery, equipment and fixtures on or connected to the
premises, for the full replacement value thereof.
33
(vi) All insurance in Subparagraphs (a)(i) through (a)(v), above,
shall be with insurers acceptable to Customer and, to the
extent required, be approved to do business in the State of
Nevada. However, such insurers may include surplus lines
carriers or Lloyds of London. All aggregates shall be on an
annual basis. Within ten (10) days from the date this
Agreement is signed by both Supplier and Customer, Supplier
shall provide Customer with certificates of insurance
evidencing such coverage. The certificates will stipulate
that the insurance will not be canceled without thirty (30)
days prior written notice to Customer. Notwithstanding
certificate requirements, above, Supplier shall provide to
Customer evidence from the Employers' Insurance (formerly the
State Industrial Insurance System) of compliance with the
workers' compensation statutes and proof of coverage.
Supplier shall provide, at the request of Customer,
certificates evidencing coverage of all insurance policies
specified above within fifteen (15) days of such request.
Customer will be named as additional insured on policies
listed in (a)(ii) through (a)(v), above.
(vii) Supplier may, at its option, elect to insure or self-insure
Supplier property owned, maintained or used at the Premises.
Customer may also, at its option, elect to insure or
self-insure all or portions of Customer insurance. Supplier
waives its rights of recovery against Customer and, if
applicable, will cause its underwriters to waive their rights
of subrogation against Customer for loss, damage, and loss of
use of such Supplier property.
(b) Customer's Insurance. At all times during the term of this Agreement,
Customer, at its sole expense, shall purchase and maintain in full force and
effect, the following insurance coverage:
(i) Commercial general liability insurance on an occurrence basis
(including contractual liability) with limits of not less
than $2,000,000 per occurrence and annually in the aggregate,
and with a deductible not exceeding $100,000, covering
liability claims arising or resulting from insured acts or
omissions of Customer, its agents, employees and others under
its control; and
(ii) All risk property insurance (including boiler and machinery
insurance) covering physical loss and damage to all
improvements forming part of the Premises, including all
machinery, equipment and fixtures on or connected to the
Premises, for the full replacement value thereof.
(iii) Garage keeper's liability insurance on an occurrence basis
with limits of not less than $1,000,000 per occurrence and
annually in the aggregate, and with a deductible not
exceeding $25,000.
34
(vi) Automobile liability insurance on an occurrence basis with
limits of not less than $1,000,000 per occurrence and
annually in the aggregate, and with a deductible not
exceeding $25,000.
(vii) Workers' compensation coverage shall be at statutory limits
and shall comply with the applicable statutes for all
employees of Customer who perform services at the site and in
connection therewith.
(viii) All insurance in Subparagraphs (b)(i) through (a)(iv), above,
shall be within insurers acceptable to Supplier and, to the
extent required, be approved to do business in the State of
Nevada. However, such insurers may include surplus lines
carriers or Lloyds of London. All aggregates shall be on an
annual basis. Within ten (10) days from the date this
Agreement is signed by both Supplier and Customer, Customer
shall provide Supplier with certificates of insurance
evidencing such coverage. The certificates will stipulate
that the insurance will not be canceled without thirty (30)
days prior written notice to Supplier. Notwithstanding
certificate requirements, above, Customer shall provide to
Supplier evidence from the Republic Western Company of
compliance with the workers' compensation statutes and proof
of coverage. Customer shall provide, at the request of
Supplier, certificates evidencing coverage of all insurance
policies specified above within thirty (30) days of such
request. Supplier will be named as additional insured on
policies listed in (b)(i) through (b)(iv), above.
(c) At the conclusion of each three year period during the term of this
Agreement, the amount of the general liability insurance required under clauses
(a)(ii) and (b)(i) above shall be reviewed and increased, if agreed upon by the
parties hereto, by a mutually agreed upon amount.
(d) If either party at any time fails to provide the insurance coverage
required under clauses (a) or (b) above, the other party upon prior written
notice shall be entitled to purchase such coverage and charge the failing party
for the costs of such coverage and all other costs incurred in connection with
obtaining the same.
35
EXHIBIT D
Installation, Operation and Maintenance Specifications
The purpose of this exhibit is to outline the method and means of operating and
maintaining the Supplier's chilled water system that will deliver chilled water
service to the customer's premises:
a) Supplier's Chilled Water System Overview
The provision of chilled water to the Customer's premises is based on the
establishment of a central chilled water plant located at 000 Xxxxxxx Xx.
that produces chilled water cooling energy for space cooling. The chilled water
is distributed to each Customer via supply and return Service Line(s) dedicated
to each Customer. The central chilled water plant primary piping and
Distribution Lines are both designed to provide chilled water on a variable-flow
(demand) basis. The Distribution Lines will be configured as hydraulically
decoupled from the central chilled water plant primary piping. The system will
be designed to operate such that the temperature differential or Delta T between
the central chilled water plant primary piping and the Distribution Lines is
maintained as close as possible to the chilled water plant design temperature
differential. This is used to ensure that the central chilled water plant is
used at the highest efficiency possible at any given load.
The chilled water system at each Customer will have a plate and frame heat
exchanger as part of the Energy Transfer Station (ETS). The plate and frame heat
exchanger transfers chilled water cooling energy from the Service Lines to the
Customer cooling system. The plate and frame heat exchanger prevents mingling of
the central chilled water plant cooling medium and the Customer cooling system
medium. Chilled water energy consumption and demand are metered at the service
entry point or point of demarcation of the Customer facility. The plate and
frame heat exchanger(s), energy meter(s), and associated controls will be
installed in the Customer Premises as a packaged unit, which, along with the
Energy Transfer Station, marks the point of demarcation between the Supplier and
the Customer cooling system. This interface point with the packaged equipment is
termed the Energy Transfer Station (ETS).
B) Chilled Water Service Temperatures
The chilled water supply temperatures are specified as "entering" the Supplier
side of the Energy Transfer Station. The supplier will ensure that the chilled
water supply temperature will be within the range of 40 to 42(degree)F.
The Supplier anticipates that the Customer requires 45(degree)F leaving chilled
water temperature from the Customer side of the Energy Transfer Station. The
Supplier anticipates that the Customer will return chilled water to the Customer
side of the Energy Transfer Station at 55 - 59(degree)F.
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c) Distribution System - General System Description
The Supplier will provide the chilled water services to the Customer from the
City Centre Chilled Water Plant. The chilled water distribution system is a
network of piping, pumps, and controls linking the chilled water source with the
Customer. The system is installed in the easement allocated using trenched
construction methods.
The distribution network will be designed to have a minimum cover of two (2)
feet over the Distribution Lines. The actual amount of cover will depend on
utility conflicts and Distribution Line servicing requirements. Typical piping
will be installed with approximately three feet of cover. In the majority of
cases, direct buried valves and vents will be installed on the cooling
distribution system. Drains will be installed either at valve xxxxxxxx or at
separately built xxxxxxxx, as necessary. Valves, vents, and drains will be
installed on-line and within the easements.
d) Energy Transfer Station(s) (ETS) - General Description
The chilled water from the Supplier is circulated in the Distribution and
Service Lines from the central chilled water plant to the Energy Transfer
Station. The customer side of the Energy Transfer Station uses cooling energy as
needed to reduce the temperature of the Customer cooling system. The manner in
which the Customer uses chilled water cooling energy in its cooling systems has
no direct interconnect to the distribution system from the supplier. The
Customers cooling system is isolated from the chilled water Service and
Distribution Lines of the Supplier by way of a heat exchanger.
The interface point at which the energy exchange takes place and is measured as
it enters a Customer facility is referred to as the "Energy Transfer Station"
(ETS).
e) Energy Transfer Station (ETS)
The ETS is a prefabricated unit including a plate and frame heat exchanger used
for the transfer of heat energy. The ETS usually consists of flat plate heat
exchangers for the chilled water, energy meters, control valves, and
thermometers. The Service lines, pipes that connect the Energy Transfer Station
with the Distribution Lines, are assembled on-site and will include isolating
valves, strainers, and pressure indicators. The Customer will be responsible for
connection of the Customer cooling system to the Customer side of the Energy
Transfer Station. The Supplier will coordinate the required specifications of
the Customer side of the Energy Transfer Station with the Customer.
The minimum space requirements for the installation of the ETS will be
approximately 250 Sq. Ft and the room will be dust free with ventilation.
37
f) Energy Metering
The consumption of chilled water cooling energy by the Customer will be measured
by an Energy Meter. The Energy Meter measures the flow of the entering and
leaving chilled water of the Energy Transfer Station In addition to measuring
flow, the Supplier side of the Energy Transfer Station is measured for, entering
and leaving chilled water temperatures. The Energy Meter will be able to
calculate the instantaneous energy demand, the peak energy demand, and total
usage/consumption to-date for billing purposes.
g) Chilled Water Plant Equipment
The chilled water production system will use electric-driven, mechanical
chillers to generate cold water for distribution. The chillers will be
high-efficiency units. Each chiller will be a factory prepackaged and factory
witness tested unit that includes unit piping connections, controls,
instrumentation, and local control panel.
The chiller(s) condenser will be supplied with cooling water from cooling towers
located on the roof of the chilled water plant building. The towers will be
suitable for outdoor, all-weather operation. Each chiller would be equipped with
a dedicated evaporator circulation pump as well as a dedicated condenser water
circulation pump. The evaporator circulation pumps are required, as the central
chilled water plant primary piping and the Distribution Lines will be configured
as a hydraulically decoupled system. The cooling tower bank will be supplied
with makeup water from the makeup water system.
h) Distribution Pumps
The chilled water will be distributed to the Distribution Lines by a set of
variable-speed/horizontal split-case, and standby fixed-speed pumps located in
the central chilled water plant. Control of the distribution pumps will be via
the chilled water plant's DDC control system based on the Distribution Lines
pressure differential.
i) Plant Control System
The central plant will be controlled by a direct digital control system (DDC).
The DDC control system is based on a central chilled water plant serving all
customers from the central chilled water plant. The DDC control system will
allow the central chilled water plant to operate in automatic mode, or allow the
operator to operate selected equipment manually. The DDC control system will
monitor each system for faults, provide warning alarms, and initiate shutdowns
as required to protect the safety of the operating staff and to minimize damage
to the equipment. The DDC control system also will collect, calculate, and store
data pertaining to the energy produced or consumed at the central chilled water
plant. The DDC control system will also be used to collect and store energy
consumed values for billing purposes from each of the Customers receiving
chilled water service.
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j) Equipment and Redundancy
The philosophy followed in establishing the amount of redundancy to be installed
is to ensure enough standby chilling capacity to satisfy the cooling
requirements of the Customer. Electric supply to the central chilled water plant
has been designed to include separate power feeds from different utility company
substations to the central chilled water plant
k) Spare Parts
Onsite capital spare parts will not be required because complete spare units
will be installed for the chillers. The only items needed to be stored at the
plant are the consumable items such as chemicals, oils, belts, filter elements,
temperature instruments, pressure instruments, gaskets, pressure regulator
overhaul kits, etc.
39
EXHIBIT E
Form of Memorandum of Agreement
THIS MEMORANDUM is made by E.THREE CUSTOM ENERGY SOLUTIONS, LLC, a Nevada
limited-liability company (the "Supplier"), and FITZGERALDS LAS VEGAS, INC.
(the "Customer"). Reference is hereby made to that certain Chilled Water Service
Agreement dated as of December 10, 1999 (the "Agreement"), between Supplier and
Customer, pursuant to which Supplier, at Customer's request, has agreed to
provide certain chilled water service to the property commonly known as 000
Xxxxxxx Xxxxxx and legally described in the manner set forth on Exhibit A
attached hereto (the "Property").
The purpose of this Memorandum is to provide notice of the Agreement and,
in accordance therewith, Supplier and Customer hereby acknowledge and agree that
notwithstanding the manner or method by which Energy Transfer Station or the
Connection Equipment (as such terms are hereinafter defined) are installed in
the Property, (i) neither the Energy Transfer Station nor the Connection
Equipment (nor any part thereof) shall be deemed to be a "fixture" attached to
the Property subject to the lien of any mortgage or other encumbrance of the
Property, and (ii) the Energy Transfer Station and the Connection Equipment are
the personal property of Supplier (subject to the terms and conditions of the
Agreement) and are not to be deemed part of the collateral pledged to any lender
or creditor of Customer as security for the repayment of any indebtedness of
Customer.
As used herein, the term "Energy Transfer Station" shall mean the
equipment and related piping and apparatus between Supplier's distribution
piping and the Connection Equipment, including, without limitation, a plate
frame heat exchanger assembly or equivalent device, piping, valves, metering
equipment and controls and additional equipment, if any, described in the IOM
Specifications (as defined in the Agreement) installed by Supplier on the
Property pursuant to the terms of the Agreement for use in providing chilled
water service to Customer, and all replacements and additions thereof.
As used herein, the term "Connection Equipment" shall mean all equipment
and piping necessary to connect the HVAC system used by Customer to cool space
within the Property to the heat exchanger assembly included in the Energy
Transfer Station.
IN WITNESS WHEREOF, Supplier and Customer have executed this instrument as
of the day and year set forth below.
Dated: December 10, 1999
E.THREE CUSTOM ENERGY SOLUTIONS, LLC FITZGERALDS LAS VEGAS, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
Title: Member, Board of Managers Title: Vice President/G.M.
40
RIDER REGARDING RENEWAL TERM
This Rider is attached to and forms a part of that certain Chilled Water
Service Agreement dated December 10, 1999 between Supplier and Customer (the
"Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Agreement.
1. Renewal. The term of the Agreement may be extended for one (1)
subsequent consecutive period of five (5) years (such period being referred to
in this Agreement as a "Renewal Term"), upon written notice from Customer to
Supplier given not less than one year prior to the expiration date of the
Initial Term, and for one subsequent consecutive period of five (5) years, upon
written notice from Supplier to Customer given not less than one year prior to
the expiration date of the Renewal Term. The Contract Capacity Charge and the
Consumption Charge during the Renewal Term shall equal the then existing
Contract Capacity Charge and the Consumption Charge under the Agreement, subject
to further adjustments as provided therein.
2. Conflict. In the event of any conflict between the provision of the
Agreement or the Cover Page and the provisions of this Rider, the provisions of
this Rider shall govern.
E.THREE CUSTOM ENERGY SOLUTIONS, LLC, FITZGERALDS LAS VEGAS, INC.
a Nevada limited-liability company
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
Title: Member, Board of Managers Title: Vice President/G.M.
41
RIDER REGARDING MISCELLANEOUS ISSUES
This Rider is attached to and forms a part of that certain Chilled Water
Service Agreement dated December 10, 1999 between Supplier and Customer (the
"Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Agreement.
Metering.
(a) All metering equipment will be furnished, paid for, and
maintained by the Supplier. The Supplier shall calibrate
Supplier's metering equipment for the Premises not less than
one time per year and, at Customer's request, Supplier shall
provide Customer at no charge the written results of any
calibration or testing of such metering equipment.
(b) The regular meter reading and billing will be monthly. If more
than one meter is installed within the premises, the readings
of all meters will be used in calculating the invoice with
respect thereto.
(c) If the suppliers metering record is interrupted at any time
for any reason, the measurement of chilled water service to be
billed for such period of interruption will be estimated by
the supplier based at its option upon (i) the supplier's meter
record immediately before and after the period of
interruption, (ii) past customer usage during a similar period
and under similar conditions, (iii) Comparable usage during
the period of interruption by other Premises which are cooled
using chilled water service provided by the supplier, duly
measured by functioning meters, or (iv) some reasonable
combination of these methods, and the customer will pay
invoices during such period based on the estimated
measurement. All xxxxxxxx based on estimated usage will
indicate the method of estimation employed.
Distribution Piping - The customer acknowledges that all distribution
piping located within the premises for the delivery of chilled water from
the Energy Transfer Station to the premises shall be owned and maintained
by the customer.
Personnel. Supplier, from time to time, shall provide Customer with a list
of all of Supplier's personnel who are authorized to have access to the Energy
Transfer System and Connection Equipment on the Premises. Notwithstanding
anything to the contrary set forth in the Agreement, no personnel other than
those identified on the aforementioned list shall be permitted such access.
Supplier agrees that if no emergency then exists, during normal business hours
the Premises manager shall be notified prior to Supplier's personnel being
granted access to the Premises, and after normal business hours the security
guard then on duty shall be given such notice. In the event of an emergency,
such notice shall not be required prior to obtaining access to the Premises, but
Supplier shall use its best efforts to notify the Premises manager or security
guard of
42
such emergency as soon as reasonably practicable.
Conflict. In the event of any conflict between the provision of the
Agreement or the Cover Page and the provisions of this Rider, the provisions of
this Rider shall govern.
E.THREE CUSTOM ENERGY SOLUTIONS, LLC, FITZGERALDS LAS VEGAS, INC.
a Nevada limited-liability company
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
Title: Member, Board of Managers Title: Vice President/G.M.
43
EXHIBIT 10(hh)(i)
LEASE AGREEMENT
Dated as of December 10, 1999
Between
e.three Custom Energy Solutions, LLC
and
Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
44
TABLE OF CONTENTS
Page
1. Definitions 1
2. Representations and Warranties 2
2.1 Representations and Warranties of Landlord 2
2.2 Representations and Warranties of Tenant 2
3. Grant and Term 2
3.1 Grant 2
3.2 Term 2
3.3 Renewal Options 3
3.4 Acceptance of Premises: Environmental Matters:
Environmental Indemnity 4
3.5 Quiet Enjoyment 5
4. Rent 5
4.1 Base Rent 5
4.2 Rent Payments 6
4.3 Net Lease 6
4.4 Rent 6
5. Entry, Use and Possession 6
5.1 Entry 6
5.2 Use and Possession 6
5.3 Signage 7
i
45
5.4 Limitations on Use 7
5.5 Construction of Improvements: Alterations 8
6. Insurance and Waiver of Subrogation 9
6.1 Insurance 9
6.2 Additional Requirements 10
6.3 Waiver of Subrogation Rights: Default 10
6.4 Failure of Tenant to Insure 10
6.5 No Consequential Damages 10
7. Damage or Destruction of Facility and Condemnation 11
7.1 Damage or Destruction 11
7.2 Eminent Domain 12
8. Assignment 12
8.1 Assignment 12
8.2 Subletting by Tenant 13
8.3 Consent Not a Release 13
8.4 Transfer by Landlord - Release from Liability 14
9. Liens and Encumbrances 14
9.1 Encumbering Landlord's Title 14
9.2 Collateral Assignment and Liens 14
10. Utilities 15
10.1 Utilities: Services 15
11. Indemnity 15
ii
46
11.1 General Indemnity 15
11.2 Limitation on Indemnity 15
11.3 Effect of Waiver 16
11.4 Survival of Obligation 16
12. Title 16
12.1 Title: Subordination 16
13. Surrender and Holdover 17
13.1 Surrender and Removal of Improvements 17
13.2 Holding Over 17
14. Defaults 18
14.1 Tenant Defaults 18
14.2 Landlord Remedies: Termination 18
14.3 Performance by Tenant's Lender 19
14.4 Landlord Default: Tenant Remedies 20
15. Miscellaneous 21
15.1 Estoppel Certificates 21
15.2 Amendments and Waivers must be in Writing 21
15.3 Notices 22
15.4 Time of Essence 22
15.5 Relationship of Parties 22
15.6 Captions 22
15.7 Severability 22
iii
47
15.8 Governing Law and Venue 22
15.9 Covenants Binding on Successors: No Third Party Beneficiaries 22
15.10 Recording of Lease 22
15.11 Default Rate of Interest 23
15.12 Self-Help 23
15.13 No Merger 23
15.14 Counterparts 23
15.15 Accord and Satisfaction 23
15.16 Reservation of Minerals 23
15.17 Post-Filing Payment Obligations 24
iv
48
LIST OF ANNEXES AND EXHIBITS
ANNEX A - Definitions
ANNEX B - Landlord's Representations and Warranties
ANNEX C - Tenant's Representations and Warranties
ANNEX D - Conditions Precedent
ANNEX E - Base Rent
EXHIBIT A - Legal Description of the Premises
EXHIBIT B - Legal Description of the Other Lands
EXHIBIT B-1 - Depiction of Landlord Parcel Easement
EXHIBIT B-2 - Depiction of Temporary Construction Easement
EXHIBIT C - Tenant's Work
EXHIBIT D - Landlord's Work
EXHIBIT E - Insurance
EXHIBIT F - Notices
v
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LEASE
THIS LEASE (as amended, restated, modified, and supplemented and in
effect from time to time, this "Lease") is made as of the 10th day of December
1999, by and between FITZGERALDS LAS VEGAS, INC., a Nevada corporation
("Landlord"), and E.THREE CUSTOM ENERGY SOLUTIONS LLC, a Nevada limited
liability company ("Tenant").
WITNESSETH:
WHEREAS, Landlord owns certain real estate located in downtown Xxx
Xxxxx, Xxxxxx 00000 at the xxxxxxxxx xxxxxx xx Xxxxxx Xxxxxx and 4th Street, a
legal description of which is set forth on Exhibit A to this Lease, and which is
hereinafter referred to as the "Premises";
WHEREAS, Tenant desires to lease the Premises from Landlord, together
with the Other Lands as described in Section 3.1 and Exhibit B attached hereto,
for the purpose of Tenant developing, constructing, owning and operating a
facility for producing and distributing chilled water to various customers in
downtown Las Vegas the ("Facility"), and Landlord is agreeable to the same, on
and subject to the terms and conditions of this Lease;
WHEREAS, Landlord has acknowledged the possibility that it will file a
Chapter 11 Petition during the Initial Lease Term;
WHEREAS, Landlord and Tenant consider this Lease and the Chilled Water
Service Agreement to be integral components of the overall contractual
relationship between them, and neither Landlord nor Tenant would be willing to
enter into this Lease without also entering into the Chilled Water Service
Agreement and having both agreements assumed by Landlord under Section 365 (a)
during the administration of its Reorganization Case; and
WHEREAS, Landlord and Tenant are entering into this Agreement based on
Landlord's agreement to assume the Chilled Water Agreement, as well as this
Lease, in a timely manner under Section 365 (a) during the administration of its
Reorganization Case;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, it is hereby agreed between Tenant and Landlord as
follows:
ARTICLE 1 - DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Lease and not
otherwise defined herein are used with the meanings given such terms in Annex A
hereto, as it may be amended, restated, modified or supplemented and in effect
from time to time.
50
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Landlord. To induce Tenant
to enter into this agreement, Landlord makes the representations and warranties
set forth on Annex B attached hereto to Tenant as of the Effective Date and the
Commencement Date.
Section 2.2 Representations and Warranties of Tenant. To induce Landlord
to enter into this Agreement, Tenant makes the representations and warranties
set forth on Annex C attached hereto to Landlord as of the Effective Date and
the Commencement Date.
ARTICLE 3 - GRANT AND TERM
Section 3.1 Grant. For and in consideration of the rents herein
specified and of the covenants and agreements herein contained on the part of
Tenant to be performed:
(a) Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises.
(b) Landlord hereby grants to Tenant nonexclusive easements
over, in and under the real property described on Exhibit "B" as
Landlord Parcel ("Landlord Parcel") (i) for the purpose of providing
access to Landlord's buildings, and (ii) to permit access for, and the
construction, installation, maintenance, repair, security and
replacement of, pipes, ducts, cables, conduit and other equipment and
apparatus used or to be used by Tenant for the construction, operation
and maintenance of the Facility and the Distribution System, and for
installation of the Distribution System from the Facility to Fourth
Street, which easements are depicted on Exhibit B-1.
(c) Landlord hereby grants to Tenant and its successors and
assigns an exclusive temporary easement in the real property in Xxxxx
County, Las Vegas, Nevada that is depicted on Exhibit B-2 ("Temporary
Construction Easement"), for purposes of staging all construction
activities related to the Facility and Distribution System. This
easement shall terminate and expire upon completion of construction of
the Facility and Distribution System.
The easements granted in this Section 3.1, except with respect to the
easement granted in Section 3.1 (c) shall continue so long as this Lease remains
in effect and shall expire and be of no further force or effect upon the
expiration or termination of this Lease. Each easement granted under this Lease
shall exist by virtue of this Lease, without the necessity of or confirmation by
any other document, and shall run with the Premises. Upon the expiration,
termination (in whole or in part) or the release of any such easement in
accordance with the provisions of this Lease, the same shall be deemed to have
expired, or have been terminated or released without the necessity of
confirmation by any other document.
Section 3.2 Term. The terms and conditions of this Lease, other than the
obligation of
2
51
Tenant to pay the Initial Base Rent, as defined below, shall be effective as of
the date of this Lease ("Effective Date"); subject, however, to Tenant's right
to terminate this Lease upon the failure of any condition precedent set forth in
this Lease or in Annex D attached hereto. The initial term of this Lease shall
be a period commencing on the date that all conditions set forth on Annex D,
attached hereto, are fully satisfied or waived by Tenant or the date Tenant
takes possession, whichever occurs first (the "Commencement Date") and, except
as otherwise provided in this Lease to the contrary, ending on the date that is
twenty (20) years following the Commencement Date (the "Initial Lease Term"),
subject to Section 3.3. below. The parties hereto shall execute a written
statement setting forth (i) that all conditions precedent are either waived or
satisfied, (ii) the Commencement Date and (iii) the expiration date of the Term
promptly after the same shall have been ascertained. The term of this Lease, as
the same may be extended or renewed, is referred to herein as the "Lease Term".
Section 3.3 Renewal Options.
(a) Landlord hereby grants to Tenant two (2) successive five (5) year
options to renew the term hereof (each a "Renewal Option") with respect to all
(but not less than all) of the Premises demised under or pursuant to this Lease
(the term of each Renewal Option is referred to as a "Renewal Term") commencing
as of the expiration date of the Initial Lease Term or any Renewal Term then in
effect, upon the following terms and conditions: (i) Tenant shall give Landlord
written notice of Tenant's election to exercise the Renewal Option not later
than six (6) months prior to the expiration date of the Initial Lease Term or
any Renewal Term then in effect; and
(ii) No Tenant Default exists and is continuing on the date
Tenant exercises the Renewal Option or on the expiration date of the
Initial Lease Term or such Renewal Term then in effect, and this Lease
has not been terminated on the date on which Tenant exercises the
Renewal Option or on the proposed commencement date of the Renewal Term.
(b) If Tenant timely and properly exercises the Renewal Option:
(i) The Base Rent payable monthly for the Renewal Term shall be
determined in accordance with Annex F;
(ii) Tenant shall have no further options to renew the Lease
Term beyond the expiration date of the last Renewal Term which becomes
effective hereunder;
(iii) Tenant shall accept the Premises at the commencement of
each Renewal Term in its "as is" condition, and Landlord shall not be
obligated to perform any leasehold improvement work in the Premises or
give Tenant any allowance for any such work or any other purposes during
or for any Renewal Term; and
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(iv) Except for the rate of Base Rent and except as otherwise
provided herein, all of the terms, provisions, representations and
warranties of this Lease shall remain the same and in full force and
effect during each Renewal Term.
(c) If Tenant exercises a Renewal Option, then, upon either party's
request Landlord and Tenant shall execute and deliver an amendment to this Lease
or a memorandum in recordable form reflecting the lease of the Premises by
Landlord to Tenant for the Renewal Term on the terms provided above, which
amendment or memorandum shall be executed and delivered within thirty (30) days
after Tenant exercises a Renewal Option.
(d) Any unused Renewal Options shall automatically terminate and become
null and void upon the expiration or termination of this Lease.
(e) Notwithstanding the foregoing, if Tenant shall fail to give any such
notice within the time limit set forth above, Tenant's right to exercise its
options shall nevertheless continue until thirty (30) days after Landlord shall
have given Tenant notice of Landlord's election to terminate such option, and
Tenant may exercise such option at any time until the expiration of said thirty
(30) day period.
It is the intention of the parties to avoid forfeiture of Tenant's
rights to extend the Term under any of the options set forth in this Section 3.3
through inadvertent failure to give notice of exercise thereof within the time
limits prescribed. Accordingly, if Tenant shall fail to give notice to Landlord
of Tenant's election to extend the Lease Term for any of the aforesaid renewal
periods and if Landlord shall fail to give notice to Tenant of Landlord's
election to terminate Tenant's right to extend the Lease Term under the option
applicable thereto, then and so often as such event shall occur, the Term shall
be automatically extended from month to month upon all of the terms and
conditions then in effect, subject to Tenant's right under such option to extend
the Term for the remainder of the applicable Renewal Term covered thereby, and
subject to Landlord's right to place the thirty (30) day limit on such option by
a notice in the manner provided in this Section, and subject to adjustments in
the initial Base Rent as more specifically set forth in Annex E.
Section 3.4 Acceptance of Premises; Environmental Matters;
Environmental Indemnity. Upon expiration of the Inspection Period and
satisfaction, in Tenant's sole and absolute discretion, of the conditions set
forth on Annex D, Tenant accepts the Premises and agrees that, other than as set
forth in this Lease, neither Landlord, nor any of Landlord's agents, has made
any oral or written representations or warranties with respect to the Premises
and Landlord has no obligation and has made no promises to remediate any
environmental condition of the Premises, or any part thereof, or to alter,
remodel, improve, repair or renovate the Premises or any part thereof, other
than as set forth on Exhibit D hereto.
Notwithstanding the foregoing, Landlord hereby agrees to indemnify,
defend and hold Tenant harmless, from and against: (a) any Hazardous Material
located on the Premises solely as a result of the acts or omissions of the
Landlord at any time after the date hereof; or (b) any condition
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of the Premises existing as of the date hereof, or which arises or occurs after
the date hereof solely as a result of the acts or omissions of the Landlord,
which violates any Hazardous Materials or Environmental Laws. Tenant hereby
agrees to indemnify, defend and hold Landlord harmless, from and against: (a)
any Hazardous Material located on the Premises as a result of the acts or
omissions of Tenant at any time after the date hereof; or (b) any condition of
the Premises which arises or occurs after the date hereof as a result of the
acts or omissions of Tenant, which violates any Hazardous Materials or
Environmental Laws. The provisions of this Section 3.4 shall survive the
expiration or termination of this Lease.
Notwithstanding the Effective Date of this Lease or Tenant's
unwillingness to accept the Premises, Tenant shall not be liable or responsible
for any clean-up, remediation, reporting, evaluation, costs or fees, of whatever
nature, or any diminution in value of the Premises arising from or in connection
with any known or unknown Hazardous Material or violation of Environmental Laws
discovered or disturbed on, in, under or around the Premises during or as a
result of Tenant's due diligence examination of the Premises during the
Inspection Period and Landlord hereby agrees to indemnify, defend and hold
Tenant harmless, from and against any such loss, cost, fees (including
attorneys' fees and discovery costs), expense, liability, suit or proceeding
arising from or in connection with any Hazardous Material or violation of
Environmental Laws discovered or disturbed on, in, under or around the Premises
during or as a result of Tenant's due diligence examination of the Premises.
Tenant shall be entitled to approve or disapprove in good faith any legal
counsel or experts used in connection with Landlord's defense of Tenant. In the
event that Landlord and Tenant are unable to agree, in good faith, upon
acceptable legal counsel, Tenant may, in its sole and absolute discretion,
select its legal counsel the costs and fees for which legal counsel and defense
shall be paid directly by Landlord. Any amounts advanced by Tenant and not
reimbursed by Landlord within thirty (30) days following Landlord's receipt of
written demand therefore shall accrue interest at the rate of twelve percent
(12%) per annum until paid.
In case any action, suit or proceeding is brought against a party hereto by
reason of any such occurrence, at the indemnified party's option, the
indemnifying party shall, at the indemnifying party's sole cost and expense, by
counsel selected by the indemnifying party (which counsel must be reasonably
satisfactory to the indemnified party), defend such action, suit or proceeding,
or cause the same to be defended.
Section 3.5 Quiet Enjoyment. Landlord covenants that Tenant shall have
quiet enjoyment of the Premises and further agrees that Landlord's activities
shall not have an adverse effect on Tenant's activities. For the purposes of
this paragraph, "adverse effect" means a materially detrimental effect on the
ownership, construction, maintenance, repair, or operation of the Facility or
the Distribution System.
ARTICLE 4 - RENT
Section 4.1 Base Rent. Tenant covenants and agrees to pay the
Landlord as rent for the Premises an initial Base Rent of One Hundred Thirty
Nine Thousand and Ninety One Dollars ($139,091) per annum ("Initial Base
Rent"), payable in advance in equal monthly
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installments without any set-off or deduction, except as provided in this Lease.
Rent for each subsequent Lease Year shall be increased from time to time in
accordance with Annex E. Tenant's obligation to pay Rent shall commence on
January 1, 2000 or the date that Tenant takes possession of the premises,
whichever is later (the "Rent Commencement Date"). The parties hereto shall
execute a written statement setting forth the Rent Commencement Date promptly
after the same shall have been ascertained which statement may be combined with
the statement identified in Section 3.2.
Section 4.2 Rent Payments. Base Rent shall be payable to Landlord, at
000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 or at such other place as Landlord
may designate in writing to Tenant from time to time. All payments of Rent shall
be made in lawful money of the United States. Tenant's obligation to pay Base
Rent on or after the Rent Commencement Date shall, however, be subject to a
right of setoff in favor of Tenant for amounts payable by Fitzgeralds Las Vegas,
Inc., or its successor or assigns, to Tenant under any Chilled Water Service
Agreement between such parties in effect from time to time; provided, however,
that Tenant shall not offset any payment of Base Rent unless amounts payable
under any such Chilled Water Service Agreement are at least thirty (30) days
past due.
Section 4.3 Net Lease. This Lease shall be a "net" lease and, commencing
on the Commencement Date and until the expiration or termination of this Lease,
Tenant shall be responsible for and pay all Impositions of any kind whatsoever
relating to the Premises and the Facility and any alterations, improvements and
additions thereto.
Section 4.4 Rent. As used herein the term "Rent" shall mean the sum of
the Base Rent and any other amounts (if any) which are due from Tenant to
Landlord from time to time pursuant to the provisions of this Lease.
ARTICLE 5 - ENTRY, USE AND POSSESSION
Section 5.1 Entry. As of the Effective Date, Landlord hereby grants to
Tenant the right to enter upon the Premises and Other Lands in order to conduct
such due diligence as is reasonably necessary with respect to the conditions set
forth on Annex D and as of the Commencement Date, Landlord hereby grants to
Tenant the right to enter upon the Premises and Other Lands to construct,
operate and maintain the Facility and Distribution System. Tenant shall pay all
costs and expenses of obtaining the reports and surveys identified on Annex D,
which reports and surveys shall be and remain the property of Tenant. Upon
Landlord's request, Tenant will provide Landlord with a copy of said reports and
surveys. Prior to entry upon the Premises and Other Lands, Tenant shall provide
to Landlord evidence of comprehensive general liability insurance in the amount
set forth on Exhibit E. It is the intent of the parties that Tenant shall not
have exclusive possession of the premises until the Commencement Date.
Section 5.2 Use and Possession. Upon satisfaction or waiver by Tenant of
the
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conditions set forth on Annex D and the taking of possession of the Premises by
Tenant, which shall be evidenced by execution and delivery of the statements
described in Sections 3.2 and 4.1, Tenant shall with due diligence construct,
operate and maintain the Facility on the Premises to provide chilled water to
customers. The Facility shall be constructed within the boundary lines of the
Premises. The Facility and the Distribution System may include fiber optic cable
and conduit and related equipment installed by Tenant for use in connection with
providing and monitoring the chilled water service or for providing other
telecommunications services. Tenant understands that there are other
telecommunications facilities in and around casino/hotel and Tenant agrees not
to install or use any telecommunication equipment that interferes with the
operation of existing equipment in Landlord's casino/hotel. Title to the
Facility and to all of the personal property owned by Tenant and used in
connection with the construction, operation and maintenance of the Facility and
the Distribution System shall be in Tenant (as against Landlord and/or
Landlord's lenders) at all times, except as otherwise provided elsewhere in this
Lease.
Section 5.3 Signage. Landlord and Tenant will both display signage on
the exterior of the Facility. Tenant's signage will read "Nevada Power Services"
and will include its red logo, and will be placed on both the south and east
walls of the Facility. Tenant's signage must be of such size as to be easily
readable from the adjacent streets. Tenant will work with Landlord so that
Tenant's signage coordinates with and does not overpower Landlord's signage and
Landlord's casino/hotel. Tenant shall be responsible for all costs of
purchasing, installing and maintaining Tenant's signage. Landlord shall be
responsible for all costs of purchasing, installing and maintaining the Landlord
signage. Landlord signage shall not interfere with the operation or use of the
Facility and shall not require any material modification to the Facility.
Ownership and title to any Landlord signage shall remain with Landlord. Landlord
shall pay to Tenant the cost of any utilities used in connection with Landlord's
signage; provided, however, that in the event that Landlord fails or refuses to
maintain the Landlord signage or pay for such utilities used in connection
therewith, Tenant may cause such obligations to be performed or discharged and
upon receipt of written demand from Tenant, Landlord shall reimburse Tenant for
all reasonable costs in relation thereto. Landlord and Tenant shall agree on the
amount per month that Landlord shall pay Tenant for utilities used in operating
the signage. Tenant shall pay for the cost of purchasing, installing and
maintaining its signage. If Tenant fails or refuses to maintain its signage,
Landlord may cause such obligations to be performed or discharged and upon
written demand from Tenant, Landlord shall reimburse Tenant for all reasonable
costs in relation thereto.
Section 5.4 Limitations on Use. Tenant shall not use the Premises for
any purpose other than a Chilled Water Distribution Facility. Landlord hereby
acknowledges and agrees, however, that Tenant may distribute and/or sell chilled
water services from the Facility to locations outside of the Premises and to
third Persons. Tenant shall not use or occupy the Premises, or permit the use or
occupancy of the Premises, in any manner or for any purpose which would:
(a) violate any law, statute, ordinance or other federal, state
or local governmental rule, regulation or requirement ("Applicable Law")
including, without limitation, those with respect to hazardous or toxic
materials, or the provisions of any applicable governmental permit or
document related to the Facility or the Premises;
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(b) violate any reasonable safety or security regulation or
policy of Landlord, as Landlord may from time to time adopt; provided,
however that in no event shall any such rule, regulation or policy
substantially or materially interfere with or restrict the operation or
maintenance of the Facility or require Tenant to expend any substantial
funds to comply with any such rule, regulation or policy, except as
otherwise agreed to, in writing, by Tenant;
(c) in any way cause an adverse effect on any of Landlord's
activities or Landlord's use of Landlord's property (provided that the
handling of interruptions of chilled water service to Landlord shall be
exclusively addressed in a Chilled Water Service Agreement between
Landlord and Tenant); or
(d) cause the cancellation, ineffectiveness or increased premium
of any fire or other insurance maintained or required hereunder to be
maintained by Tenant or Landlord.
Section 5.5 Construction of Improvements; Alterations.
(a) Tenant's Work. For purposes of this Article 5, the term "Tenant's
Work" shall mean and refer to the design construction and installation of all
aspects of the Facility and Distribution System as described in detail in
Exhibit C hereto (such work being referred to herein as the "Tenant's Work").
Tenant shall be responsible for all cost associated with Tenant's work.
(b) Landlord's Work. Any work to be performed by Landlord in connection
with the construction and development of the Facility and Distribution System is
described in detail in Exhibit D hereto (such work being referred to herein as
the "Landlord's Work"). Tenant shall pay to Landlord or reimburse Landlord for
the actual costs and fees incurred by Landlord in connection with Landlord
obtaining the permits and approvals described on Exhibit D except Tenant shall
have no obligation to pay or reimburse to Landlord any costs related to site
improvements or changes required of Landlord by the City of Las Vegas that have
been deferred from prior projects or that are required because of prior
construction or commitments by the Landlord. Any amounts advanced by Landlord
and not reimbursed by Tenant as provided herein shall accrue interest at the
rate of twelve percent (12%) per annum until paid. Tenant agrees to pay or
reimburse Landlord for said costs and fees upon receipt of Landlord's written
demand therefore. Tenant shall not be required to pay for any costs or fees
incurred by Landlord in connection with obtaining any permits or approvals for
(i) structural or cosmetic alteration to Landlord's hotel casino, other than
such alterations with respect to the inter-connection of the Facility to
Landlord's hotel casino, but exclusive of any work required to Landlord's
facility to bring such facility into compliance with current building, health or
safety codes or (ii) signage or any other lighting or decorative identifications
or displays.
To enhance the aesthetics of the Premises, Landlord may install
landscaping in the areas surrounding the Facility ("Landlord Landscaping").
Landlord shall be responsible for all costs of
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purchasing, installing and maintaining such Landlord Landscaping; provided that
upon completion of installation of the Landlord Landscaping, Tenant shall pay to
Landlord $15,000 towards the purchase and installation of the Landlord
Landscaping upon receipt of Landlord's invoice therefore. Landlord shall provide
a suitable water line from the Facility to permit irrigation of the Landlord
Landscaping. Landlord shall, at Landlord's sole cost and expense, maintain the
Landlord Landscaping and pay to Tenant the cost of any utilities used in
connection with Landlord's Landscaping; provided, however, that in the event
that Landlord fails or refuses to maintain its landscaping or pay for utilities
used in connection with Landlord's Landscaping, Tenant may cause such
obligations to be performed or discharged and upon receipt of written demand
from Tenant, Landlord shall reimburse Tenant for all costs in relation thereto.
Any amounts advanced by Tenant and not reimbursed by Landlord as provided herein
shall accrue interest at the rate of twelve percent (12%) per annum until paid.
Landlord shall install, at Landlord's sole cost and expense, any necessary
separate meters for any utilities used in connection with the Landlord
Landscaping. Landlord shall coordinate its installation and maintenance program
with Tenant; provided, however, that in no event and at no time may any Landlord
Landscaping or Landlord's installation and maintenance program therefore
interfere with or delay Tenant's construction schedule for the Facility or the
operation of or access to the Facility.
(c) Alterations. Tenant shall have the right to make additions,
improvements and alterations to the Facility and Distribution System
(collectively, "Alterations") from time to time during the Lease Term; provided,
however, that prior to altering the exterior of the Facility or the footprint of
the Facility, Tenant shall obtain the Landlord's prior written consent, which
consent shall not be unreasonably withheld.
(d) Mutual Cooperation. Landlord and Tenant, both acting reasonably,
agree to cooperate with each other so that the Landlord's Work and Tenant's Work
can be completed in a timely manner to permit completion of the Facility and
commencement by Tenant of exporting of chilled water service there from by not
later than June 26, 2000. Tenant shall prosecute construction of any
improvements on the Premises with due diligence, subject, however, to
unavoidable delays and/or Force Majeure Events.
(e) All Improvements, Construction and Alterations. All improvements,
construction and alteration shall be constructed in a good and workmanlike
manner in accordance with all applicable rules, regulations and codes. Tenant
shall provide Landlord with as-built construction documents for the Facility for
safety purpose in the event of an emergency. Other than as necessary for safety
purposes, Landlord agrees not to disclose such documents without the prior
written consent of Tenant.
ARTICLE 6 - INSURANCE AND WAIVER OF SUBROGATION
Section 6.1 Insurance. At all times from and after the date hereof,
Tenant and Landlord shall each, at its sole expense, purchase and maintain in
full force and effect, the insurance coverage set forth in Exhibit E hereto.
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Section 6.2 Additional Requirements. All insurance required to be
purchased by Tenant or Landlord pursuant to this Article 6 shall be placed with
reputable companies licensed to do business in the State of Nevada and shall
provide for deductibles reasonably acceptable to Landlord or Tenant, as
applicable. Prior to the Commencement Date, each party shall deliver to the
other certificates of insurance evidencing the insurance required hereby. All
such insurance will require not less than thirty (30) days prior written notice
to both parties in the event of modification or cancellation of coverage.
Section 6.3 Waiver of Subrogation Rights; Default. Each party hereby
releases and waives for itself and, to the extent legally possible for it to do
so, without invalidating its insurance coverage, on behalf of its insurer, the
other party hereto and its respective officers, directors, agents, members,
partners, servants, and employees from liability for any loss or damage to any
or all property located on the Other Lands or the Premises which loss or damage
is of the type and within the limits covered by the "all-risk" property damage
insurance and other property/casualty insurance which the parties have agreed to
obtain and maintain in effect pursuant to Section 6.1, irrespective of any
negligence on the part of the released party and its respective officers,
directors, agents, partners, members, servants, or employees, which may have
contributed to or cause such loss or damage. Each party covenants that it will,
if available, obtain for the benefit of the other party and its officers,
directors, agents, members, partners, servants, and employees, a waiver of any
right of subrogation which the insurer of such party may acquire against such
party by virtue of the payment of any such loss covered by property/casualty
insurance. In the event a party is by law, statute or governmental regulation
unable to obtain a waiver of the right of subrogation for the benefit of the
other party (and its respective, officers, directors, agents, members, partners,
servants, and employees) or its insurance carriers will not give such a waiver
or its property/casualty insurance will be invalidated or terminated by the
waiver and release set forth in the first sentence of this Section 6.3, then,
during any period of time when such waiver is unobtainable, said party shall not
have been deemed to have released any subrogated claim of its insurance carrier
against such other party (or its respective officers, directors, agents,
members, partners, servants, or employees), and during the same period of time,
such other party shall not have been deemed to have released the party which has
been unable to obtain such waiver (or such party's respective officers,
directors, agents, members, partners, servants, or employees) from any claims it
or its insurance carrier may assert which otherwise would have been released
pursuant to this Section 6.3.
Section 6.4 Failure of Tenant to Insure. If Tenant at any time fails to
provide the insurance coverage required by Section 6.1, Landlord will be
entitled, but not obligated, to purchase such coverage, after written notice of
Landlord's intent, and to collect the cost of such coverage from Tenant as
additional rent. Any amounts advanced by Landlord and not reimbursed by Tenant
as provided herein shall accrue interest at the rate of twelve percent (12%) per
annum until paid.
Section 6.5 No Consequential Damages. Notwithstanding anything to the
contrary in this Lease, in no event shall Landlord or Tenant be liable to the
other for any lost business, loss of profits or other special and/or
consequential damages, whether direct or indirect, in respect of which each
hereby excuses the other and waives any and all such claims against the other,
provided that
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the foregoing is not intended to be a waiver of any rights or obligations of
Tenant or Landlord under any Chilled Water Service Agreement or other agreement
between Fitzgeralds Las Vegas, Inc. and Tenant.
ARTICLE 7 - DAMAGE OR DESTRUCTION OF FACILITY AND CONDEMNATION
Section 7.1 Damage or Destruction. If any building or improvement at any
time on the Premises or Landlord Signage shall be damaged or destroyed by any
cause whatsoever (other than the negligence or willful misconduct of the
Landlord), during the first seventeen (17) years of this Lease, Tenant shall,
with reasonable promptness repair and replace the same at its own expense, to at
least the condition existing immediately prior to such damage or destruction,
and shall do so, even though proceeds of any insurance policies covering the
loss shall be insufficient to reimburse Tenant therefore; provided, however that
if such proceeds of insurance are more than sufficient to pay the cost of any
such rebuilding, Tenant shall be entitled to receive any surplus. Except for
damage or destruction caused by the negligence or willful misconduct of
Landlord, Tenant shall not be entitled to any abatement of Rent during any
period of reconstruction nor shall Tenant's obligations under this Lease be
terminated, notwithstanding any damage or destruction to said building or
improvements.
If during the last three (3) Lease Years of the Initial Term or any
Renewal Term the Facility is damaged to the extent of fifty percent (50%) or
more of the full restoration cost (exclusive of the land and foundations), then
this Lease may be terminated at the election of either Landlord or Tenant,
provided that notice of such election shall be delivered by the electing party
to the other within thirty (30) days after the occurrence of such damage or
destruction. Upon the exercise of such option to terminate by either party
hereto, this Lease shall be deemed of no further force or effect, the parties
shall be released from all further liabilities thereafter arising under this
Lease, except as to indemnity, and any pre-existing unperformed obligations, and
all Rent or other charges paid by Tenant for periods after the date of
destruction shall be promptly refunded. Notwithstanding the foregoing, however,
if at the time of such damage or destruction Tenant has the right to extend the
Term as provided in Section 3.3 hereof, then Tenant may elect to exercise such
right within twenty (20) days after receiving notice of Landlord's election to
terminate pursuant to this Section 7.1, and in such case Landlord's notice of
termination shall be void and Tenant shall diligently proceed to repair the
Facility. Notwithstanding the termination of this Lease as provided in this
paragraph, Tenant's obligation for unpaid Rent, Additional Rent or any other
sums due under this Lease through the date of termination, restoration of the
Premises and Landlord and Tenant's indemnification obligations shall survive
such termination as provided in the Lease. Notwithstanding that Tenant's future
obligation to pay Rent under the Lease may be terminated pursuant to this
paragraph, to the extent that Tenant is entitled to any insurance proceeds
related to the destruction of the Facility after the discharge and full payment
of all of Tenant's creditors who have a security interest in the Facility,
Distribution System, Chilled Water Agreements or any equipment within the
Facility, Landlord shall be entitled to receive from the remaining insurance
proceeds an amount equal to the Base Rent that would otherwise have been due
under the Lease, exclusive of any adjustments, for the remainder of the Lease
term then in effect.
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Section 7.2 Eminent Domain. If the whole of the Premises (or such part
of the Premises that the balance of the Premises is no longer suitable for
Tenant's permitted use) shall be taken by any public authority under the power
of condemnation or eminent domain, the term of this Lease shall cease as of the
date possession shall be taken by such public authority, except as to indemnity
and any pre-existing unperformed obligations, and Tenant shall pay Rent,
additional rent and any other sums due under this Lease up to that date with an
appropriate refund by Landlord of such Rent as may have been paid in advance for
any period subsequent to the date possession is taken. If less than all of the
Premises shall be so taken (and the balance of the Premises is suitable for
Tenant's permitted use), the term of this Lease shall continue, but the Premises
shall be redefined to properly identify and delete that portion of the Premises
that has been taken and Tenant shall pay Rent and any other sums due under this
Lease up to the date of possession by a public authority with appropriate refund
by Landlord of such prorated Rent as may have been paid in advance for any
period subsequent to the date possession is taken. Thereafter the Base Rent
shall be proportionately adjusted and Tenant shall promptly restore the
remaining improvements on the Premises, exclusive of any Landlord Signage
effected by such taking. Landlord and Tenant shall each be entitled to
participate in the negotiations and settlement of any amounts or other
compensation in connection with the condemnation or other taking of the Premises
or any part thereof.
ARTICLE 8 - ASSIGNMENT
Section 8.1 Assignment. Except for a "Permitted Transfer" (as such term
is herein defined) which may be made at any time without Landlord's consent, but
only after prior written notice to Landlord, Tenant shall not, either prior or
subsequent to the commencement of the Initial Term or a Renewal Term, assign
this Lease or any interest under this Lease without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. For
purposes of this Article 8, the term "Permitted Transfer" shall mean: 1) any
transfer or assignment of Tenant's interest in this Lease made in connection
with a transfer of Tenant's interest in the Facility in a transaction permitted
by the terms of any Chilled Water Service Agreement between Tenant and Landlord,
and their respective successors and assigns; 2) a transfer of Tenant's interest
in the Lease and Facility to another entity that is directly or indirectly a
wholly-owned subsidiary of Sierra Pacific Resources. In any event, no such
assignment shall be valid unless there shall be delivered to Landlord in due
form for recording, within ten (10) days after the date of the assignment (a) a
duplicate original of the instrument of assignment, and (b) an instrument of
assumption by the transferee of all of the Tenant's obligations under this Lease
and under the Landlord's Chilled Water Agreement; and (c) Tenant or assignee
shall within sixty (60) days prior to effective date of assignment provide
evidence that the prospective assignee is a reputable party whose financial net
worth, credit and financial responsibility is considering the responsibilities
involved, reasonably satisfactory to Landlord.
Landlord acknowledges and agrees that the transferee under any
assignment or transfer to which Landlord has consented as aforesaid, as well as
the transferee or assignee under any Permitted Transfer, shall be deemed to be
the "Tenant" for purposes of this Lease and shall be
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afforded all of the rights, benefits and obligations of Tenant hereunder.
Upon the effective date of any assignment or transfer of this Lease
conforming to the terms hereof, but not otherwise, the assignor shall have no
further liability under this Lease to Landlord except as to matters of liability
which shall have accrued and are unsatisfied as of such date, it being intended
that the covenants and obligations contained in this Lease on the part of Tenant
shall be binding upon Tenant and its successors and assigns only during and in
respect of their respective successive periods of tenancy, excepting any
covenants relating to indemnification for Hazardous Materials on, in or under
the Premises. Without limiting any of the foregoing, but in addition thereto,
any assignment in contravention of the terms hereof is void, but this shall not
impair any remedy of Landlord because of Tenant having engaged in an act
prohibited by the terms hereof.
Section 8.2 Subletting by Tenant. Tenant may sublet all but not less
than all of said Premises provided that: 1) the potential subtenant assumes all
of Tenant's obligations under this Lease and any Chilled Water Agreement between
Tenant and Landlord; and 2) Tenant delivers to Landlord an executed counterpart
of such sublease which shall be expressly conditioned upon and subject to
Landlord's prior written consent and the terms hereof, together with full and
complete current financial statements of the potential sublessee, not less than
sixty (60) days prior to the effective date thereof. Landlord shall not
unreasonably withhold its consent to a proposed sublease provided the
prospective sublessee is a reputable party whose financial net worth, credit and
financial responsibility is, considering the responsibilities involved,
reasonably satisfactory to Landlord, and providing the sublessee uses the
Premises and Facility for the sole purpose of operating a Chilled Water
Facility. Any sublease in violation hereof shall be void, but without thereby
impairing any remedy of Landlord because of Tenant having engaged in an act
prohibited by the terms hereof. Additionally, Tenant will furnish to Landlord
for Landlord's approval, the floor plan for all of the space proposed to be
sublet by Tenant. And, the sublease shall contain a provision substantially to
the effect that if there be any termination of the within Lease then the
subtenant, at the request of Landlord, will attorn to Landlord, and the sublease
shall continue in effect with Landlord.
Landlord agrees to enter into Nondisturbance and Attornment Agreements
with subtenants of Tenant if the sublease of such subtenant shall have been
first approved in writing by Landlord. Without limiting that which would
constitute reasonable grounds for Landlord's withholding of approval, it is
agreed that it shall not be deemed unreasonable for Landlord to refuse to give
such consent to any such sublease if the sublessee cannot demonstrate that it
has the financial ability to perform under the terms of this Lease. In no
circumstance shall Landlord be required to give its approval if such sublease
(i) calls for the granting of a concession in rent, or (ii) would impose upon
the Landlord any obligation to make alterations to the Premises demised under
the sublease or to pay the subtenant for alterations made by it.
Section 8.3 Consent Not a Release. Neither a Permitted Transfer nor the
consent by Landlord to any assignment or subletting shall be deemed to be a
consent to or relieve Tenant from obtaining Landlord's consent to any subsequent
assignment or subletting requiring consent under
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Section 8.1 above.
Section 8.4 Transfer by Landlord - Release From Liability. In the event
Landlord shall sell or transfer the Premises or any part thereof, and as a part
of such transaction shall assign its interest as Landlord in and to this Lease,
and Landlord shall provide an instrument of assumption by the transferee of all
the obligations of Landlord under this Lease. Then from and after the effective
date of such sale, assignment, or transfer, Landlord shall have no further
liability under this Lease to Tenant except as to matters of liability which
shall have accrued and are unsatisfied as of such date, it being intended that
the covenants and obligations contained in this Lease on the part of Landlord
shall be binding upon Landlord and its successors and assigns only during and in
respect of their respective successive periods of ownership of the fee,
excepting any covenants relating to indemnification for Hazardous Materials on,
in or under the Premises as set forth in this Lease, and the granting of those
certain easements in, under and over the Landlord Parcel as described in this
Lease. Tenant shall, immediately upon written request from any such assignee,
execute and deliver to such assignee an instrument in proper form by which
Tenant attorns to said assignee.
ARTICLE 9 - LIENS AND ENCUMBRANCES
Section 9.1 Encumbering Landlord's Title. Tenant shall make all payments
and take all actions at its own cost and expense as may be necessary to ensure
that no lien, charge, or order for payment of money is registered against
Landlord's interest in and to the Premises that results from any work, services
or materials supplied to Tenant or the Facility or any act or omission of Tenant
and that is not discharged or vacated (or with respect to which payment has not
been secured by the placement of a bond in an amount, form and content
reasonably acceptable to Landlord) within thirty (30) Business Days after Tenant
receives notice of such registration. Tenant shall indemnify, defend and save
harmless Landlord against any and all costs, liabilities, suits, penalties,
claims and demands, including reasonable attorney's fees, arising there from.
Any claim to, or lien upon, the Premises arising from the acts or omissions of
Tenant shall accrue only against the leasehold estate of Tenant and the Tenant's
interest in the Facility. If Tenant fails to cause such lien, charge or order to
be discharged of record or bonded within ninety (90) Business Days after Tenant
receives notice of such registration, then Landlord shall have the right to
cause the same to be discharged. All amounts paid by Landlord to cause any such
lien, charge or order to be discharged shall constitute additional Rent payable
by Tenant to Landlord, or, at Landlord's option, may be recovered from Tenant in
an appropriate proceeding.
Section 9.2 Collateral Assignment and Liens. Landlord agrees that Tenant
shall have the right to grant to a lender a security interest in Tenant's
interest in this Lease for collateral purposes and to grant to such lender
security interests in and liens on the personal property, fixtures, machinery
and equipment of Tenant located on the Premises. Tenant covenants and agrees to
promptly provide to Landlord a copy of any notice of default received by Tenant
from Tenant's lender.
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'
ARTICLE 10 - UTILITIES
Section 10.1 Utilities; Services. Tenant shall purchase the water, gas
and sewage services necessary for the operation of the Facility directly from
the utility, authority or municipality providing such service, and shall pay for
such services when such payments are due. Tenant covenants to pay all such
charges for these utility services and any others required in the operation of
its business on or before their due date.
ARTICLE 11 - INDEMNITY
Section 11.1 General Indemnity. Subject to Section 11.2 below, each
party hereto shall protect, indemnify and save the other party and its agents
and employees harmless from and against all liabilities, obligations, claims,
damages (other than lost business, lost profits and other special and/or
consequential damages, whether direct or indirect, all claims for which are
hereby irrevocably waived), penalties, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) imposed
upon or asserted against such other party by reason of any accident, physical
injury to or death of persons or physical loss of or physical damage to property
arising:
(a) from the conduct of such party's business;
(b) from any breach or default on the part of the indemnifying
party in the performance of any covenant or agreement on the part of
such party to be performed pursuant to the terms of this Lease;
(c) from the indemnifying party's violation of any Federal,
state or local law, regulation or action governing environmental or
xxxxxxx or Facility operations safety statutes applicable to the
Facility or work being performed; or
(d) due to any other legally actionable act or omission of the
indemnifying party or its agents, contractors or employees.
In case any action, suit or proceeding is brought against a party hereto by
reason of any such occurrence, at the indemnified party's option, the
indemnifying party shall, at the indemnifying party's sole cost and expense, by
counsel selected by the indemnifying party (which counsel must be reasonably
satisfactory to the indemnified party), defend such action, suit or proceeding,
or cause the same to be defended.
Section 11.2 Limitation on Indemnity. The aforesaid indemnification
shall not be applicable to any claim, demand, penalty, cause of action, fine,
liability, settlement, damage, cost or other expense of any type whatsoever
occasioned, arising and caused solely and directly as the result of the
negligence or willful misconduct of a party claiming a right to be indemnified
or its agents or employees.
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Section 11.3 Effect of Waiver. The indemnities of either party contained
in this Lease shall not apply or pertain to liabilities, obligations, claims,
damages, penalties, causes of action, costs or expenses to the extent such party
has waived claims in respect thereto pursuant to Section 6.3 above.
Section 11.4 Survival of Obligation. The duty to indemnify under this
Article 11 will continue in full force and effect notwithstanding the expiration
or termination of this Lease, with respect to any loss, liability, damage or
other expense based on factors and conditions which occurred prior to such
termination.
ARTICLE 12 - TITLE
Section 12.1 Title; Subordination. Landlord may mortgage or otherwise
encumber the premises; however, Landlord agrees to promptly notify Tenant in
writing of any mortgage, trust deed, or ground lease encumbering the Premises,
other than the mortgages in effect as of the date hereof (copies of which
Landlord has provided to Tenant). If at any time the Premises shall become
subject to any mortgage, trust deed or ground lease, other than the mortgages in
effect on the date hereof, Landlord shall deliver to Tenant a recordable
non-disturbance agreement (pursuant to which, among other things, the Lease, and
Tenant's right of possession of the Premises on the terms and conditions set
forth in the Lease, would be honored by any lender, ground lessor or person or
entity claiming by, through or under such lender or ground lessor, in the event
a foreclosure or deed-in-lieu of foreclosure occurred or a ground lease was
terminated and no Tenant Default then existed) satisfactory in form and
substance to Tenant acting in a commercially reasonable manner (herein called a
"Non-Disturbance Agreement") signed by such lender or ground lessor, as the case
may be. In the event Landlord should request an extension of time to procure a
non-disturbance agreement, said request shall be granted provided Landlord
demonstrates it has made a request for the non-disturbance agreement within the
initial 30 day period.
With respect to the existing mortgages identified on Annex B Section
(e), Landlord shall obtain Non-Disturbance Agreements, in a form reasonably
acceptable to Tenant, from the mortgagees thereunder prior to the Commencement
Date, which obligation is a condition precedent as set forth on Annex D.
Without limiting the foregoing, if the mortgagee or trustee in any first
mortgage or first trust deed hereafter made desires this Lease to be subject and
subordinate to its mortgage or trust deed, then all or a portion of the rights
and interests of Tenant under this Lease (other than rights in respect of any
Taking) shall be subject and subordinate to such mortgage or trust deed and to
any and all advances to be made thereunder, and to the interest thereon, and all
renewals, replacements and extensions thereof, if and only if such mortgagee or
trust deed holder or such ground lessor, as the case may be, has delivers to
Tenant a Non-Disturbance Agreement signed by such lender or ground lessor, as
the case may be. Any mortgagee or trustee in any mortgage or trust deed
hereafter made may elect that, instead of making this Lease subject and
subordinate to its mortgage or trust deed, the rights and interest of Tenant
under this Lease shall have priority over the lien of its mortgage or trust
deed. Tenant agrees that in the event that any trustee or mortgagee or ground
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lessor elects to make this Lease subordinate to its mortgage, trust deed or
ground lease, and Tenant receives from such lender or ground lessor a signed
Non-Disturbance Agreement in a form reasonably acceptable to Tenant, Tenant
shall, upon the request thereof, attorn to any such trustee or mortgagee who
becomes owner of the Premises through foreclosure or deed in lieu of foreclosure
or to any other purchaser of the Premises at a foreclosure sale or to such
ground lessor, as the case may be.
ARTICLE 13 - SURRENDER AND HOLDOVER.
Section 13.1 Surrender and Removal of Improvements. No later than the
180th day following the date on which this Lease expires or is terminated in
accordance with the terms hereof, but subject to extension upon the occurrence
of a Force Majeure Event or delays caused by Landlord, Tenant shall surrender
the Premises to Landlord, free and clear of any liens or encumbrances arising
out of the use and operation of the Facility by Tenant. Additionally, Tenant
shall have removed from the Premises any and all machinery, equipment and
personal property and other improvements at Tenant's expense and shall have
restored the Premises to a level, graded condition acceptable to Landlord and
otherwise as reasonably practicable restore the Premises to its original
condition. Tenant's interest in any improvements remaining on the Premises after
the 180th day following expiration or earlier termination of this Lease shall be
vacated and surrendered by Tenant to Landlord, without the payment of any
consideration, unless otherwise agreed to, in writing, by the parties, and shall
automatically become the property of Landlord. Landlord may but shall not be
obligated to remove and/or store any of Tenant's property or improvements left
on the Premises after expiration of the 180 day period. Should Landlord elect to
remove and/or store Tenant's remaining property, upon written demand by
Landlord, Tenant shall pay to Landlord all reasonable costs incurred by Landlord
in connection with the storage or removal of any machinery, equipment and
personal property and other improvements which Tenant has not removed. Any sums
not paid when due shall accrue interest at the rate of twelve percent (12%) per
annum until paid.
Upon the expiration of the Lease Term or sooner termination of this
Lease, Tenant shall execute, acknowledge and deliver to Landlord a proper
instrument in recordable form, releasing and quitclaiming to Landlord all right,
title and interest of Tenant in and to the Premises, other lands and easements
granted herein by Landlord to Tenant.
Section 13.2 Holding Over. Except for the 180 day period referred to in
Section 13.1 above or such shorter period as Tenant requires in order to remove
the Facility under Section 13.1 (and it is agreed that Tenant shall pay Landlord
Rent and Impositions at the rate(s) in effect during such 180 days or shorter
holdover period, payable monthly in advance), Tenant shall have no right to
occupy the Premises or any portion thereof after the expiration of the Term or
after termination of this Lease or of Tenant's right to possession. In the event
Tenant holds over, Landlord may exercise any and all remedies available to it at
law or in equity to recover possession of the Premises and for any damages
resulting from such holdover.
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ARTICLE 14 - DEFAULTS
Section 14.1 Tenant Default. Tenant agrees that any one or more of the
following events shall be considered a "Tenant Default" as said term is used
herein:
(a) Tenant shall fail to pay any Rent or other charge owing by
Tenant pursuant to the terms of this Lease, and such failure shall
continue for fifteen (15) days after notice thereof in writing to
Tenant:
(b) Tenant shall fail to keep, observe or perform any of the
other covenants or agreements herein contained to be kept, observed and
performed by Tenant, and such failure shall continue for thirty (30)
days (or such shorter period as is specifically referred to in this
Lease for any particular breach) after notice thereof in writing to
Tenant; provided, however, in the event that such failure cannot
reasonably be cured within the aforesaid thirty (30) day period (or
shorter period, if applicable), and Tenant shall within said period
commence to cure said default and diligently thereafter prosecutes to
correction said failure, the period for completion shall be extended for
so long as is reasonably required to cure said default; or
(c) The estate or interest of Tenant in the Premises is levied
upon or attached in any proceeding and such process is not stayed,
vacated or discharged within ninety (90) days after such levy or
attachment.
(d) Abandonment or surrender of the Premises or of the leasehold
estate.
(e) The appointment of a receiver to take possession of Tenant's
interest in the Premises, Tenant's improvements on the Premises,
Tenant's interest in the leasehold estate, or of Tenant's operations on
the Premises for any reason, including but not limited to assignment for
benefit of creditors or voluntary or involuntary bankruptcy proceedings,
but not including receivership (i) pursuant to any mortgage permitted by
provisions of this Lease relating to purchase or construction of
improvements, or (ii) instituted by Landlord, the event of default being
not the appointment of a receiver at Landlord's instance but the event
justifying the receivership, if any.
(f) An assignment by Tenant for the benefit of creditors or the
filing of a voluntary or involuntary petition by or against Tenant under
any law for the purpose of adjudicating Tenant bankrupt; or for
extending time for payment, adjustment or satisfaction of Tenant's
liability; or for reorganization, dissolution, or arrangement on account
of or to prevent bankruptcy or insolvency; unless the assignment or
proceeding, and all consequent orders, adjudications, custodies and
supervisions are dismissed, vacated or otherwise permanently stayed or
terminated within thirty (30) days after the assignment, filing, or
other initial event.
Section 14.2 Landlord Remedies. In the event of any such Tenant
Default,
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Landlord may, at any time thereafter, with or without notice or demand, and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default or breach, do any number or all of the
following:
(a) Terminate Tenant's right to possession of the Leased Premises, in
which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Leased Premises to Landlord. In such event, Landlord shall be
entitled to immediately recover from Tenant the following: all damages incurred
by Landlord by reason of Tenant's default, including, but not limited to, the
cost of recovering possession of the Leased Premises; expenses of reletting,
reasonable attorneys' fees and any real estate commission actually paid; and the
worth at the time of the amount by which the unpaid rent for the balance of the
term after the breach exceeds the amount of such rental loss for the same period
that Tenant proves could be reasonably avoided. All sums due Landlord pursuant
to this paragraph 14.2 (a) shall bear interest at the annual rate of twelve
percent (12%) from the date the same becomes due and payable hereunder, and in
the event such sum is an expenditure of money by Landlord, then from the date
such expenditure is made by Landlord. Landlord shall have an affirmative duty to
mitigate.
(b) Terminate Tenant's possession, but not terminate this Lease, in
which event Landlord may lease the Leased Premises for the account of Tenant,
and Tenant shall pay any deficiency in rent, and all other charges incurred by
Landlord attributable to the breach and reletting. Landlord shall not be deemed
to be unreasonable in its mitigation efforts if it refuses to let the Leased
Premises to a person or entity which does not meet the criteria set forth in
paragraphs 5.1 and 14.2, above.
(c) Maintain Tenant's right to possession in which case this Lease shall
continue in effect, whether or not Tenant shall have abandoned the Leased
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent
and all other sums as they become due hereunder.
(d) Terminate this Lease.
Subject to the foregoing, Landlord shall have such rights and remedies
for Tenant defaults as provided elsewhere in this Lease and at law and in
equity, and all remedies shall be cumulative such that Landlord's exercise or
failure to exercise any remedy shall not limit or prevent Landlord from
exercising any other remedy available to Landlord. Notwithstanding the
foregoing, Tenant may offset against any damages owed by Tenant to Landlord any
amounts due or damages awarded or incurred pursuant to that certain Chilled
Water Services Agreement between Landlord and Tenant, provided, however, that
Tenant shall not offset any payment of Base Rent unless amounts payable under
the Chilled Water Services Agreement are at least thirty (30) days past due.
Section 14.3 Performance by Tenant's Tender. Tenant may make a mortgage
or mortgages of its interest in this Lease and Tenant may grant security
interests in the Facility, Distribution System and equipment and improvements on
the Premises. If Tenant shall have made any such mortgage or security interest,
(the holder of such mortgage and/or security
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interest being herein referred to as "Leasehold Mortgagee" and such mortgage
being herein sometimes referred to as "Leasehold Mortgage") and if the Leasehold
Mortgagee(s) shall have given to Landlord a notice ("Leasehold Mortgagee's
Notice") specifying the name and address of the Leasehold Mortgagee, Landlord
shall give to the Leasehold Mortgagee a copy of each notice of a default by
Tenant at the same time as and whenever any such notice of a default shall
thereafter be given by Landlord to Tenant, addressed to such Leasehold Mortgagee
at the address last furnished to the Landlord. Failure to give simultaneous
notice of such Leasehold Mortgagee shall not impair any notice properly given to
Tenant and shall not enlarge Tenant's cure period. Such Leasehold Mortgagee
shall thereupon have an additional period of thirty (30) days, after service of
such notice upon it for remedying the default or causing the same to be
remedied, than is given Tenant after service of such notice upon Tenant. Such
Leasehold Mortgagee, in case Tenant shall be in default, shall, within the
additional period, and otherwise as herein provided, have the right to remedy
such default or cause the same to be remedied. No default by Tenant shall be
deemed to exist, so long as the Leasehold Mortgagee shall have notified Landlord
within the period of time allowed for Tenant to cure that the Leasehold
Mortgagee intends to cure on behalf of the Tenant within the additional 30 day
cure period. From and after receiving the Leasehold Mortgagee's Notice, Landlord
and Tenant will not cancel, surrender, modify, or amend this Lease in any
respect without the prior written consent of the Leasehold Mortgagee.
If a Leasehold Mortgagee shall acquire Tenant's interest in the Lease as
a result of a sale under such Leasehold Mortgage pursuant to a power of sale
contained herein, pursuant to a judgment or foreclosure or through any transfer
in lieu of foreclosure, such Leasehold Mortgagee shall have the privilege of
transferring its interest in this Lease to a nominee or a wholly owned
subsidiary corporation with the prior consent of Landlord (which consent shall
not be unreasonably withheld) and provided, that there shall be delivered to
Landlord in due form for recording, within ten days after the date of such
transfer (a) a duplicate original or the instrument of assignment, and (b) an
instrument of assumption by the transferee of all of the Tenant's obligations
under this Lease, and said Leasehold Mortgagee shall be relieved of any further
liability under this Lease from and after the effective date of such transfer,
except as to matters of liability which shall have accrued and are unsatisfied
as of such date. Any purchaser at a foreclosure sale, other than a Leasehold
Mortgagee, must assume this Lease and it shall have no right in respect to the
Premises unless it so assumes and delivers a duplicate original of the
assumption agreement (to be executed in form for recording) within ten (10) days
after such purchaser acquired title to the Tenant's interest in this Lease.
Under no circumstances may the purchaser or new tenant be in the lodging or
gaming industry.
Section 14.4 Landlord Default; Tenant Remedies. In the event Landlord
shall fail to keep, observe or perform any of its covenants or agreements
contained in this Lease and such failure shall continue for thirty (30) days
after written notice from Tenant to Landlord, then Tenant shall have the right
to exercise all remedies available to Tenant at law and in equity; provided,
however, in the event that such failure cannot reasonably be cured within the
aforesaid thirty (30) day period (or shorter period, if applicable), and
Landlord shall within said period commence to cure said default and diligently
thereafter prosecutes to correction said failure, the period for completion
shall be extended for so long as is reasonably required to cure said default.
Tenant shall
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also have such other rights and remedies for a breach by Landlord of its
obligations under this Lease as are set forth herein or are available under
Applicable Law, and all remedies shall be cumulative such that Tenant's exercise
or failure to exercise of any remedy shall not limit or prevent Tenant from
exercising any other remedy available to Tenant.
ARTICLE 15 - MISCELLANEOUS
Section 15.1 Estoppel Certificates.
(a) Tenant shall, at any time and from time to time upon not less than
thirty (30) days' prior written request from Landlord, execute, acknowledge and
deliver to Landlord, in form reasonably satisfactory to Landlord, a written
statement certifying (if true) that Tenant has accepted the Premises, that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modification), that, to the best of Tenant's knowledge, Landlord is not in
default hereunder (or if there is a default, stating the nature of said
default), the date to which the rental and other charges have been paid, and
such other accurate certifications as may reasonably be required by Landlord or
Landlord's mortgagee or any transferee or proposed transferee of the Premises.
Any statement delivered by Tenant pursuant to this Section 15.1 may be relied
upon by Landlord and Landlord's lenders and prospective lenders.
(b) Landlord shall, at any time and from time to time upon not less than
thirty (30) days' prior written request from Tenant, execute, acknowledge and
deliver to Tenant, in form reasonably satisfactory to Tenant, a written
statement certifying (if true) that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), that, to the best of
Landlord's knowledge, no Tenant Default then exists (or if there is a Tenant
Default, stating the nature thereof), the date to which the rental and other
charges have been paid and such other accurate certifications as may reasonably
be required by Tenant or by such other person or entity, as the case may be.
Furthermore, Landlord shall execute and deliver a nondisturbance agreement in a
form reasonably requested by Tenant, which shall state that upon foreclosure or
other enforcement of rights of a lender's interest in the Premises, so long as
there is no uncured default under this Lease, Landlord shall recognize as its
tenant such lender, its successor or assigns, or other purchaser through
lender's exercise of power of sale, foreclosure or other proceeding (whether be
deed in lieu of foreclosure or any other method) and such tenant shall peaceably
and quietly have, hold and enjoy the Premises and the appurtenant rights related
thereto for the full term of this Lease, as this Lease may be extended or
earlier terminated in accordance with the provisions of this Lease, subject to
the terms, covenants, conditions, provisions and agreement of the Lease;
provided, however, that any such purchaser or new tenant is not engaged in the
lodging or gaming industry. Any statement delivered by Landlord pursuant to this
Section 15.1 may be relied upon by Tenant and Tenant's lenders and prospective
lenders.
Section 15.2 Amendments and Waivers Must Be In Writing. This Lease
contains the entire agreement between the parties. None of the covenants, terms
or conditions of this Lease, to
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be kept and performed by either party, shall in any manner be altered, waived,
modified, changed or abandoned except by a written instrument, duly signed by
both parties and delivered.
Section 15.3 Notices. All notices and other communications under this
Lease shall be given in accordance with Exhibit F hereto.
Section 15.4 Time of Essence. Time is of the essence of this Lease, and
all provisions herein relating thereto shall be strictly construed.
Section 15.5 Relationship of Parties. Nothing contained herein shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership, or of joint venture,
between Landlord and Tenant, it being understood and agreed that no provision in
this Lease or any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of landlord and tenant.
Section 15.6 Captions. The captions of this Lease are for convenience
only and are not to be construed as part of this Lease and shall not be
construed as defining or limiting in any way the scope or intent of the
provisions hereof.
Section 15.7 Severability. If any term or provision of this Lease shall
to any extent be held invalid or unenforceable, or shall be in conflict with the
requirements of any law, such term or provision shall be deemed to be
inapplicable and the remaining terms and provisions of this Lease shall not be
affected thereby, but each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
Section 15.8 Governing Law and Venue. This Lease shall be construed and
enforced in accordance with the law of the State of Nevada. Venue for any
action, suit or proceeding arising from or related to this Lease shall be
exclusively in Xxxxx County, Nevada. Landlord and Tenant expressly waive, to the
extent permitted by applicable law, the right to trial by jury in any such
action, suit or proceeding.
Section 15.9 Covenants Binding on Successors; No Third Party
Beneficiaries. All of the covenants, agreements, conditions and undertakings
contained in this Lease shall extend and inure to and be binding upon the
successors and permitted assigns of the respective parties hereto, the same as
if they were in every case specifically named, and wherever in this Lease
reference is made to either of the parties hereto, it shall be held to include
and apply to, wherever applicable, the successors and permitted assigns of such
party. Nothing herein contained shall be construed to grant or confer upon any
person or persons, firm, corporation or governmental authority, other than the
parties hereto and their successors and permitted assigns, any right, claim or
privilege by virtue of any covenant, agreement, condition or undertaking in this
Lease contained.
Section 15.10 Recording of Lease. A short form notice or memorandum of
this Lease and the easements created hereby (but not the Lease itself) may be
recorded against the Premises by either party hereto, provided that the form
thereof has received the prior approval of Landlord and
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Tenant, which approval shall not be unreasonably delayed or withheld.
Section 15.11 Default Rate of Interest. Any amount owing by either
party under this Lease that is not paid on or before the 30th day after the due
date of such amount shall bear interest at a rate equal to one and one-half
percent (1.50%) per month, or the maximum legal rate, whichever is greater, from
such date through and including the date of payment thereof (calculated using
actual days elapsed and a year of 365 or 366 days, as applicable).
Section 15.12 Self-Help. Landlord may, but shall not be obligated to,
perform any duty or obligation of the Tenant under this Lease if and to the
extent Tenant fails to perform such duty or obligation and such failure
continues for thirty (30) days after written notice thereof. If Landlord so
elects to cure or attempt to cure such failure of the Tenant, then all
reasonable costs and expenses incurred by Landlord in curing or attempting to
cure such failure, including without limitation reasonable attorneys' fees and
court costs shall be repaid by the Tenant within fifteen (15) Business Days
after a written request therefore (together with an invoice and reasonable
backup therefore). The rights and remedies provided for in this Section 15.13
are non-exclusive, and nothing herein shall prevent Landlord from exercising
any other right or remedy available to it under this Lease or at law or in
equity (subject to the limitations set forth in this Lease).
Section 15.13 No Merger. There shall be no merger of this Lease nor of
the leasehold estate created by this Lease with the fee estate in the Premises
or any part thereof by reason of the fact that the same person may own or
acquire or hold, directly or indirectly (a) this Lease or the leasehold estate
created by this Lease or any interest in this Lease or in any such leasehold
estate and (b) the fee estate in the Premises or any part thereof or any
interest in such fee estate and no such merger shall occur unless and until
Landlord, Tenant, each holder of a mortgage on the fee estate in the Premises
and each holder of a mortgage on the leasehold estate created by this Lease
shall join in a written instrument effecting such merger.
Section 15.14 Counterparts. This Lease may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
Section 15.15 Accord and Satisfaction. No payment by Tenant or receipt
by Landlord of a lesser amount then the Rent, additional rent or other sums due
hereunder shall be deemed to be other than on account of the Rent, additional
rent or other sums due hereunder nor shall any endorsement or statement on any
check or any letter accompanying any check or statement be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of the Rent, additional rent or other
sums due hereunder or pursue any other remedy provided for in this Lease.
Section 15.16 Reservation of Minerals. There is reserved to Landlord the
title and exclusive right to all the minerals and minerals of every kind and
character now known to exist or hereafter discovered upon, within or underlying
said Premises, or that may be produced therefrom, including, without limiting
the generality of the foregoing, all petroleum, oil, natural
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gas and other hydrocarbon substances and products derived therefrom and all
geothermal steam or brines which may be produced or derived therefrom, together
with the exclusive and perpetual right thereto, without, however, the right to
use or penetrate the surface of, or to enter upon said Premises within five
hundred (500) feet of the surface thereof, to extricate or remove the same.
Section 15.17 Post-Filing Payment Obligations. Any payment obligations
which Landlord incurs under this Lease during the pendency of its Reorganization
Case shall be deemed administrative expenses under Section 503(b)(1) in such
Reorganization Case.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
FITZGERALDS LAS VEGAS, INC. E.THREE CUSTOM ENERGY SOLUTIONS, LLC
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
------------------------- ---------------------------------
Name: XXXXXXX X. XXXXXX Name: XXXXXXX X. XXXXX
----------------------- -------------------------------
Title: V.P. / G.M. Title: Member Board of Managers
---------------------- ------------------------------
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ANNEX A
DEFINITIONS
The following terms shall have the meanings specified or referred to
herein:
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Applicable Laws" has the meaning set forth in Section 5.3.
"Alterations" has the meaning set forth in Section 5.2.
"Bankruptcy Code" means Title 11 of the United States Code.
"Base Rent" has the meaning set forth in Section 4.1.
"Business Day" means a weekday which is not a statutory legal holiday in
the City of Las Vegas, Nevada.
"Chapter 11" means Chapter 11 of the Bankruptcy Code.
"Chilled Water Service Agreement" means a written agreement between
Landlord and Tenant under which Tenant agrees to provided chilled water service
to Landlord for use off the Premises and Landlord agrees to compensate Tenant
for such service, as such agreement may be amended, restated, modified or
supplemented and in effect from time to time.
"Commencement Date" has the meaning set forth in Section 3.2.
"Distribution System" means the wiring, conduit, electrical equipment,
pumps, piping, meters, sensors and other equipment used to distribute chilled
water from the Facility to customers located in the downtown Las Vegas area.
"Effective Date" shall mean the date upon which this Lease is (i) signed
by both parties hereto and a fully executed copy is delivered to and received by
both parties hereto.
"Environmental Laws" means all present and future laws (whether common
law, statute, rule, regulation or otherwise), permits, and other requirements of
governmental authorities relating to the environment or to any Hazardous
Material or Hazardous Material Activity, including, without limitation,
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. sections 9601 et seq.); the Hazardous Materials Transportation Act;
Nevada Hazardous Materials Statute (NRS Chapter 459); the Resource Conservation
and Recovery Act (42 U.S.C. sections 6901 et seq.); the Toxic Substance Control
Act; the Clean Air Act; Safe Drinking Water Act, the Federal Water Pollution
Control Act; the Hazardous Substance
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Control Act; the Hazardous Substance Act; the Occupational Health and Safety
Act; any so-called "Super-Fund" or "Super-Lien" law, or any other federal, state
or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, as of
now or at any time hereafter in effect.
"Facility" has the meaning set forth in the Recitals to this Agreement.
"Force Majeure Event" means acts of God, war, civil commotion, embargoes,
strikes, epidemic, fires, cyclones, droughts, floods, emergencies, provided that
a Force Majeure Event shall not include events caused by the gross negligence or
willful misconduct of the party claiming the Force Majeure Event.
"Hazardous Materials" means for purposes of this Lease shall be
interpreted broadly to include, but not be limited to, any material or substance
that is defined or classified under federal, state, or local laws as (a) a
"hazardous substance" pursuant to section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. section 9601(14), section
311 of the Federal Water Pollution Control Act, 33 U.S.C. section 1321, as now
or hereafter amended; (b) a "hazardous waste" pursuant to section 1004 or
section 3001 of the Resource Conservation and Recovery Act, 42 U.S.C. sections
6903, 6921, as now or hereafter amended; (c) a toxic pollutant under section
307(a)(1) of the Federal Water Pollution Control Act, 33 U.S.C. section
1317(a)(1); (d) a "hazardous air pollutant" under section 112 of the Clean Air
Act, 42 U.S.C. section 7412, as now or hereafter amended; (e) a "hazardous
material" under the Hazardous Materials Transportation Uniform Safety Act of
1990, 49 U.S.C. App. section 1802(4), as now or hereafter amended; (f) toxic or
hazardous pursuant to regulations promulgated now or hereafter under the
aforementioned laws; or (g) presenting a risk to human health or the environment
under other applicable federal, state or local laws, ordinances, or regulations,
as now or as may be passed or promulgated in the future. "Hazardous Materials"
shall also mean any substance that after release into the environment and upon
exposure, ingestion, inhalation, or assimilation, either directly from the
environment or directly by ingestion through food chains, will or may reasonably
be anticipated to cause death, disease, behavior-abnormalities, cancer, or
genetic abnormalities. Toxic or hazardous materials specifically includes, but
is not limited to, asbestos, polychlorinated biphenyls ("PCBs"), petroleum and
petroleum-based derivatives, and urea formaldehyde.
"Hazardous Material Activity" means any actual, proposed or threatened
storage, holding, existence, release, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of any
Hazardous Material from, under, into or on the premises or surrounding property
after the date hereof, including, without limitation, any "Release" as defined
in the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. sections 9601 et seq.).
"Impositions" means all taxes, levies and assessments; use and occupancy
taxes; water and water assessments, fees and use charges; charges for public
utilities; excises; levies; license and
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permit fees; transit taxes; real estate taxes; intangible and other personal
property taxes; business and occupation taxes; occupational license taxes, and
all other governmental impositions and charges of every kind and nature
whatsoever, whether the same are extaordinary or ordinary, general or special,
or unforeseen or foreseen, which at any time from and after the date hereof
shall be or become due and payable, but shall not include any general income
taxes or franchise fees assessed against Landlord or the amount of any taxes,
assessments or levies based upon or related to the interconnection of the
Facility to Landlord's contiguous facilities.
"Inflation Index" means the U.S. City Average Consumer Price Index, all
items other than food and energy, not seasonably adjusted, as it appears in the
"News" as published monthly by the United States Department of Labor, Bureau of
Labor Statistics; provided, however, that if said Consumer Price Index shall
cease to exist or is changed, then the term "Consumer Price Index" shall mean
such other or similar index or formula as Tenant and Landlord shall agree upon
to measure change in the purchasing power of the U.S. dollar.
"Initial Lease Term" has the meaning set forth in Section 3.2.
"Landlord" means the Person identified as the "Landlord" in the first
paragraph of this Agreement, and the successors and permitted assigns of such
Person.
"Landlord's Work" has the meaning set forth in Section 5.4(b).
"Lease" means this Lease, as it may be amended, restated, modified or
supplemented and in effect from time to time.
"Lease Term" has the meaning set forth in Section 3.2.
"Lease Year" means a one year period of time beginning on the Commencement
Date or any anniversary thereof and ending one year later.
"Non-Disturbance Agreement" has the meaning set forth in Section 12.1.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or governmental authority or regulatory body.
"Premises" has the meaning set forth in the Recitals to this Agreement.
"Renewal Option" has the meaning set forth in Section 3.3(a).
"Renewal Term" has the meaning set forth in Section 3.3(a).
"Rent" has the meaning set forth in Section 4.4.
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"Reorganization Case" means a case commenced under Chapter 11 by the
filing of a Chapter 11 Petition.
"Section 365(a)" means Section 365(a) of the Bankruptcy Code.
"Section 503(b)(1) means Section 503(b)(1) of the Bankruptcy Code.
"Tenant" means the Person identified as the "Tenant" in the first
paragraph of this Agreement, and the successors and permitted assigns of such
Person.
"Tenant Default" has the meaning set forth in Section 14.1.
"Tenant's Work" has the meaning set forth in Section 5.4(a).
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ANNEX B
LANDLORD'S REPRESENTATIONS AND WARRANTIES
(a) Landlord is a corporation duly organized and existing in good
standing under the laws of the State of Nevada, with all requisite corporate
power and authority to enter into and perform this Lease and to carry out its
obligations hereunder;
(b) Landlord's execution, delivery and performance of this Lease have
been duly authorized by all requisite corporate action on its part, and this
Lease has been duly executed and delivered by Landlord and constitutes
Landlord's legal, valid and binding obligation;
(c) Landlord's execution, delivery and performance of this Lease will
not result in a breach or violation of, or constitute a default under, any
agreement, lease, or instrument to which it is a party or by which it or its
properties may be bound or affected;
(d) No suit, action or arbitration, or legal, administrative or other
proceeding is pending or has been threatened against Landlord seeking to prevent
or enjoin Landlord from executing and delivering this Lease or carrying out its
obligations hereunder or that which could adversely affect the validity or
enforceability of this Lease or the ability of Landlord to fulfill its
commitments hereunder, or which could result in any material adverse change in
the business or financial condition of Landlord;
(e) Landlord is the owner in fee simple estate of the Premises, free and
clear of any liens, security interests, mortgages, deeds of trust or other
encumbrances, other than a first mortgage lien securing approximately
$15,000,000 of indebtedness and a second mortgage lien securing approximately
$205,000,000 of indebtedness of Landlord's parent, Fitzgeralds Gaming
Corporation, guaranteed by Landlord, and the leasehold granted hereby is not
subject to any conflicting interest in or claim to the Premises in favor of
anyone other than the interest secured by such first and second mortgage liens;
(f) To the best of Landlord's knowledge, no Hazardous Materials exist
on, in or under the Premises and the Premises is in compliance with
Environmental Laws applicable to the Premises.
(g) There are no leasing or rental agreements in effect demising the
Premises, other than the Lease, and there are no executory contracts, options or
agreements in existence which relate to the purchase of all or any portion of
the Premises or any interest therein;
(h) Landlord has no knowledge of any outstanding violations of any
applicable pollution, zoning, Environmental Protection Agency, health, safety,
OSHA, fire, environmental, sewerage and building codes, statutes, ordinances and
regulations pertaining to the Premises or Landlord's facility;
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(i) Landlord has no knowledge of any delinquent special taxes or
assessments against the Premises, or any portion thereof;
(j) Landlord has no knowledge of any increase in the real estate tax
assessment of the Premises or any portion thereof.
(k) Landlord has no knowledge that during Landlord's ownership of the
Premises (i) "Hazardous Materials" (as hereinafter defined) have been located on
the Premises or have been released into the environment, or discharged, placed
or disposed of at, on or under the Premises; (ii) underground storage tanks have
been located on the Premises; (iii) the Premises have ever been used as a dump
for waste material; (iv) any portion of the Premises is located in an area that
has been designated a wetlands or other environmental protection area; and (v)
the Premise and its prior uses have not complied with and at all times have
complied with, any applicable governmental law, regulation or requirement
relating to environmental and occupational health and safety matters and
Hazardous Materials; and
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ANNEX C
TENANT'S REPRESENTATIONS AND WARRANTIES
(a) Tenant is a limited liability company duly organized and existing in
good standing under the laws of the State of Nevada, with all requisite limited
liability company power and authority to enter into and perform this Lease and
to carry out its obligations hereunder;
(b) Tenant's execution, delivery and performance of this Lease have been
duly authorized by all requisite limited liability company action on its part,
and this Lease has been duly executed and delivered by Tenant and constitutes
Tenant's legal, valid and binding obligation;
(c) Tenant's execution, delivery and performance of this Lease will not
result in a breach or violation of, or constitute a default under Tenant's
organizational documents, any law, regulation, writ or injunction, any
agreement, lease, or instrument to which it is a party or by which it or its
properties may be bound or affected;
(d) No suit, action or arbitration, or legal, administrative or other
proceeding is pending or has been threatened against Tenant seeking to prevent
or enjoin Tenant from executing and delivering this Lease or carrying out its
obligations hereunder or that which could adversely affect the validity or
enforceability of this Lease or the ability of Tenant to fulfill its commitments
hereunder, or which could result in any material adverse change in the business
or financial condition of Tenant; and
(e) As of the date of this Lease, Tenant is an indirect wholly-owned
subsidiary of Sierra Pacific Resources, a Nevada corporation.
(f) Neither the construction nor the operation of the Facility will
generate or cause the release of Hazardous Materials on, in or under the
Premises.
(g) The Facility will be constructed and operated in compliance with all
applicable laws including Environmental Laws.
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ANNEX D
CONDITIONS PRECEDENT
As further conditions to Tenant taking possession of the Premises:
(a) Tenant must have obtained a copy of a current title insurance
commitment for the issuance of a leasehold title policy, issued by a title
insurance company approved by Tenant, insuring Tenant's leasehold interest
in the amount of twelve million Dollars ($12,000,000) under this Lease
showing only the Permitted Exceptions and Nondisturbance Agreements from
the holder of any mortgage to which this Lease is subordinate, which title
insurance commitment must be obtained on or before the Commencement Date.
(b) Tenant shall have thirty (30) days from the Effective Date
(said thirty (30) day period being herein referred to as the "Inspection
Period") to satisfy or waive all contingencies in subsections (i) through
(vii) and (c) - (f) below. In the event Tenant determines, in Tenant's
sole and absolute discretion, that any of the forgoing conditions are not
satisfactory or Tenant determines for any other reason that it does not
desire to lease the Premises, Tenant shall notify Landlord within such
thirty (30) day period that Tenant is terminating this Lease, whereupon
this Lease shall terminate and be of no further force and effect and
neither party hereto shall have any further liability to the other, except
for the indemnification obligation of Landlord set forth in the third
paragraph of Section 3.4 of the Lease. Failure of Tenant to so notify
Landlord within the ninety (90) days specified herein of Tenant's desire
to terminate this Lease or waive the following conditions shall be deemed
a waiver of such conditions and the parties will remain bound by the terms
of this Lease:
(i) Tenant obtaining, at Tenant's sole cost and expense,
survey, surveyors, report, surveyor's certificate and any other
appraisals, inspections, or tests desired by Tenant to determine
whether the Premises is usable by Tenant for the purpose of
constructing and operating a chilled water facility. Upon Landlord's
request, Tenant will provide Landlord with a true and correct copy
of any surveys, reports, inspections, or tests performed pursuant to
this subsection (b).
(ii) Tenant's satisfaction that the Premises is suitable for
the construction and operation of the Facility and Distribution
System as determined by Tenant in Tenant's sole and absolute
discretion, including, but not limited to, obtaining necessary
governmental permits, licenses and consents with respect to the
Distribution System.
(iii) Tenant's receipt of satisfactory evidence of the absence
of any toxic or Hazardous Materials in, on or under the Premises or
having adversely affected the soil conditions.
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(iv) Tenant's receipt of satisfactory evidence that soil
conditions are such to be able to support the improvements planned
by Tenant.
(v) Landlord and Tenant shall have entered into a Chilled
Water Services Agreement mutually acceptable to Landlord and Tenant;
(vi) Tenant shall have entered into contracts with others for
the provision of chilled water services in service capacities equal
to at least two thousand tons.
(vii) Tenant shall be satisfied, in Tenant's sole and absolute
discretion, that the services to be provided by the Facility do not
require the issuance of a certificate of public convenience or
necessity from the Public Utilities Commission of Nevada or are
otherwise regulated by any governmental agency.
(c) Landlord has delivered to Tenant all existing topographical
(including a topographical survey), engineering, environmental and other
studies with regard to the Premises in Landlord's possession.
(d) Landlord shall have applied for and obtained from state,
county and/or city authorities all requisite permits, approvals and
variances to permit Tenant's modifications to Landlord's adjacent hotel
and casino necessary for the connection of the Facility and the
Distribution System thereto.
(e) Landlord shall have applied for and obtained from state,
county and/or city authorities either an alley vacation (so that the
Facility and/or the relevant portion of the Distribution System can be
connected to Landlord's hotel casino underground through the alley) or an
air-rights easement or variance (so that the Facility and the relevant
portion of the Distribution System can be connected to the Landlord's
hotel casino via piping at the second story level or above over the alley.
(f) Landlord shall have delivered to Tenant fully executed
Nondisturbance and Attornment Agreements, in recordable form, in
substantially the form approved by Tenant, from all mortgagees or
beneficiaries under deeds of trust encumbering the Premises.
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ANNEX E
BASE RENT
Base Rent will be $139,091 for the Lease Year commencing January 1, 2000 and
ending December 31, 2000 (the "Initial Base Rent"), payable in advance in equal
monthly installments of $11,590.92 each.
Base Rent for each subsequent Lease Year, including a Lease year during a
Renewal Term, will be equal to the product of (A) the Initial Base Rent,
multiplied by (B) the percentage increase, if any, in the "Inflation Index" for
the period from December 31, 1999 through the most recent December 31st. For
each determination of the Inflation Index, the most recently published Inflation
Index figures as of December 31(st) of the Lease Year most recently ended shall
be used.
Once the amount of Base Rent for any Lease Year after 2000 is determined, the
monthly payments thereof shall each be in an amount equal to one-twelfth (1/12)
of the Base Rent for such Lease Year.
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EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
A PARCEL OF LAND, BEING A PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 34, TOWNSHIP 20 SOUTH, RANGE 61 EAST,
M.D.M., XXXXX COUNTY, NEVADA, BEING A PORTION OF LOTS 23 THROUGH 28 INCLUSIVE IN
BLOCK 30 OF XXXXX'X LAS VEGAS TOWNSITE AS SHOWN ON PLAT BOOK 1 PAGE 37 OF XXXXX
COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE XXXXXXXXXXXX XXXXX XX XXX XXXXXXXXXX XX XXXXXX XXXXXX WITH THE
CENTERLINE OF XXXXXX STREET; THENCE ALONG XXX XXXXXXXXXX XX XXXXXX XXXXXX XXXXX
00 degrees 04'42" WEST 116.93 FEET; THENCE DEPARTING SAID CENTERLINE OF XXXXXX
STREET NORTH 27 degrees 55'18" EAST 40.00 FEET TO A POINT ON THE NORTH RIGHT OF
WAY LINE OF XXXXXX STREET, SAME POINT BEING THE POINT OF BEGINNING; THENCE ALONG
SAID NORTH RIGHT OF WAY LINE NORTH 62 degrees 04'42" WEST 63.09 FEET; THENCE
DEPARTING SAID NORTH RIGHT OF WAY NORTH 27 degrees 54'35" EAST 125.67 FEET;
THENCE SOUTH 62 degrees 04'42" EAST 63.09 FEET; THENCE SOUTH 27 degrees 55'18"
WEST 125.67 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 7,928 SQUARE FEET (0.18 ACRES), MORE OR LESS.
The premises are shown on the attached Survey dated November 12, 1999.
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[VICINITY MAP]
35a
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EXHIBIT B
LEGAL DESCRIPTION OF THE OTHER LANDS
Landlord grants to Tenant the Distribution System Easement, Air Rights Easement
and Temporary Construction Easement as more particularly described below over,
in and under the Landlord Parcel as shown on the attached Exhibits B-1 and B-2.
Distribution System Easement to Fourth Street: (see Exhibit B-1)
An non-exclusive easement for the purpose of installing, repairing and
maintaining chilled water distribution pipes for the supply and return of
chilled water to and from the Facility. The approximate location of the easement
shall be agreed upon as necessary from time to time in order to serve other
customers and the exact location shall be where such pipes are finally placed
within the Landlord Parcel. The easement shall contain two pipes each
approximately twelve inches in diameter installed at a depth of approximately
four feet. The width of the easement shall be approximately eight feet wide and
shall begin at the northeast portion of the Facility and shall run in an
easterly direction toward Fourth Street. The easement shall include a
nonexclusive easement and the right of ingress and egress over the Landlord
Parcel to install, maintain and repair the pipes.
Air Right Easement Connecting Facility to Landlord's Casino/Hotel: (see Exhibit
B-1)
An exclusive easement for the installation, repair and maintenance of chilled
water pipes from the northwest part of the Facility above the alley as depicted
on Exhibit B-1 at approximately 20 feet in height above the ground in a westerly
direction and connecting the Facility to the Landlord's existing hotel casino
facility at the location depicted on Exhibit B-1.
Temporary Construction Easement (see Exhibit B-2)
For purposes of staging all construction activities related to the Facility and
Distribution System, Landlord grants to Tenant an exclusive easement over and on
the portion of the parking lot depicted on Exhibit B-2 beginning at least 20'
from what is known as the Xxxxxxxx Building to the edge of the lot abutting the
sidewalk on Fourth and Xxxxxx Streets.
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EXHIBIT B-1
DEPICTION OF LANDLORD PARCEL EASEMENT
[VICINITY MAP]
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EXHIBIT B-2
DEPICTION OF TEMPORARY CONSTRUCTION EASEMENT
[VICINITY MAP]
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EXHIBIT C
TENANT'S WORK
PROJECT DESCRIPTION:
Tenant shall design, construct, operate and maintain The City Centre Chiller
Plant which will be housed in a new building to be constructed within the
boundaries of the Premises (except for the Distribution System). The Central
Plant building, which will house the energy plant, is located on Xxxxxx Xxxxxx
xxx Xxxxxx Xxxxxx and is approximately 13,000 sq. ft. in size. In general, the
building will be constructed as a structural steel building with slab on deck
construction with an EIFS exterior (plaster / stucco veneer) and will be
approximately 60 feet above grade to the parapet. The first floor will house on
the Xxxxxx Street end the electrical rooms including the back-up generator and
the North end of the building will house the control room. In between these, the
new entrance and valet drive through will be located. On the second floor of the
building, the chilled water plant including the plate and frame exchangers and
pumps will be located. The roof of the building will house the cooling towers.
The cooling plant is made up of electric driven water cooled chillers initially
totaling 3,600 nominal-tons, servicing approximately 2,200 tons connected
customer loads, primary and secondary pumps, VFDs, and a plate and frame Heat
exchanger. The primary piping headers have been sized for 5,000 nominal-tons
with future connections for 2 additional chillers.
The primary purpose of this building is to serve chilled water for cooling to
Downtown Las Vegas properties including gaming, commercial and governmental
customers.
Tenant shall pay the cost of the permits and approvals as described in paragraph
1 of Exhibit D.
Tenant, at its expense, shall provide engineering documents and the cost of
actual construction for the curb cuts off of 0xx Xxxxxx xxx Xxxxxx Xxxxxx; it
shall also provide the design and engineering plans for the landscaping and
irrigation.
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EXHIBIT D
LANDLORD'S WORK
1. Apply for and obtain from county and/or city authorities all requisite
permits and approvals, including variances to any set-back requirements,
to permit construction of the Facility abutting against Landlord's
existing facilities as described in Section 3.1, and to connect the
Distribution System to Landlord's hotel casino.
2. Apply for and obtain from county and/or city authorities either an alley
vacation (so that the Facility can be connected to Landlord's hotel casino
underground through the alley) or an air-rights easement or variance (so
that the Facility and the relevant portion of the Distribution System can
be connected to the Landlord's hotel casino via piping at the second story
level or above over the alley.
3. Provide to Tenant within five (5) days after Tenant's request, Landlord's
signage requirements and install Landlord Signage in coordination with
Tenant's construction schedule.
4. Provide to Tenant within five (5) days after Tenant's request, Landlord's
landscaping and irrigation scope of work. Tenant will prepare engineering
documents for the work described in this paragraph per Exhibit C. Landlord
will install Landlord's landscaping and irrigation in coordination with
Tenant's construction schedule.
5. Provide Tenant within five (5) days after Tenant's request, Landlord's
concept of revised vehicular entrance off of 0xx Xxxxxx and vehicular
control on the Lots 23-27 from which the Tenant will provide
engineering/construction documents as mandated by the City in regards to
those curb cuts and related sidewalks on 4th and Xxxxxx Streets required
to obtain building permits and ultimately construct the prescribed work.
The Landlord will provide engineering for the remainder of the work to be
performed on the remainder of Lots 23-27. The cost of the actual
construction will be allocated between Tenant and Landlord as described
elsewhere in this document.
6. Perform all changes, improvements or relocations required by the City of
Las Vegas as a condition to issuing the Permit to construct, but which is
required because of prior construction or commitments.
7. Install the landscaping that is designed by Tenant (which design must be
approved by Landlord) and provide the irrigation from its facilities
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EXHIBIT E
INSURANCE
1. Tenant will maintain:
(i) Workers' compensation insurance, with limits of liability at least
equal to the statutory requirements therefore;
(ii) Employer's liability insurance of not less than $1,000,000;
(iii) Comprehensive general liability insurance against liability for
injury to or death of any person or damage to property in connection
with the use, operation or condition of the Facility of not less
that $2,000,000 combined single limit per occurrence and annual
aggregate;
(iv) "All-risk" property insurance covering the Facility to the extent of
the full replacement cost thereof and, during construction of the
Facility, "all-risk builder's risk" insurance covering the Facility
to the extent of the full replacement thereof;
(v) During any and all periods of construction of the Facility, Tenant
shall cause its general contractors (including all contractors who
contract directly with Tenant) to obtain (i) commercial general
liability insurance with a minimum limit of liability of $5,000,000
combined single limit for bodily injury, personal injury and
property damage and include the Customer as an additional insured
and (ii) workers' compensation insurance, with limits of liability
at least equal to the statutory requirements therefore and
employer's liability insurance of not less than $1,000,000; and
(vi) Excess liability umbrella coverage of at least $50,000,000.
2. The Landlord shall maintain:
(i) Workers' compensation insurance, with limits of liability at least
equal to the statutory requirements therefore;
(ii) Employer's liability insurance of not less than $1,000,000;
(iii) Comprehensive general liability (including public liability and
property damage,) Insurance coverage covering occurrences, accidents
and incidents on the Landlord's property that (1) occur from and
after the date hereof (regardless of when the claim is filed) and
(2) result of bodily injury, personal injury or death to any person
or
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entity and/or damage or destruction of property. Said insurance
shall have a combined single limit of liability per occurrence of
not less than $1,000,000 on a primary basis and not less than
$50,000,000 on an excess/umbrella basis, or such greater amounts as
are typical for similar casino-hotel projects in Las Vegas, Nevada;
and
(iv) "All-risk" property insurance covering the Premises and improvements
thereon to the extent of the full replacement cost thereof.
Each party hereto agrees that the insurance described above to be provided by
the other party may be provided by and through blanket coverages which may be
provided in whole or in part through a policy or policies covering other
liabilities and locations of the party obligated to provide such insurance and
its affiliates.
3. Tenant may, at its option, elect to insure of self-insure Tenant
insurance. Landlord may also, at its option, elect to insure or
self-insure all or portions of Landlord insurance.
If self-insured, Tenant and/or Landlord, as the case may be shall submit
to the other within (10) days after the execution of this Agreement and
annually thereafter during the term of this Agreement a certificate of
compliance confirming that it has fulfilled its self-insurance
requirements.
In addition, any contractor or subcontractor hired by Tenant will during
the term of this Agreement maintain and keep in force general public
liability insurance against claims for personal injury, death or property
damage occurring in or on the Premises with combined policy limits of at
least Two Million Dollars ($2,000,000).
4. At the conclusion of each three (3) year period during the terms of this
Agreement, the amount of the general liability insurance required under
clauses (a)(ii) and (b)(i) above shall be reviewed and increased, if
agreed upon by the parties hereto, by a mutually agreed upon amount.
5. If either party at any time fails to provide the insurance coverage
required under clauses (a) or (b), the other party upon written notice
shall be entitled to purchase such coverage and charges the failing party
for the reasonable costs of such coverage and all other reasonable costs
incurred in connection with obtaining the same.
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92
EXHIBIT F
NOTICES
All notices and communications under this Agreement shall be in writing and
shall be (a) delivered in person, or (b) mailed, postage prepaid, either by
registered or certified mail, or (c) sent by reputable overnight express
carrier, or (d) sent by facsimile, addressed or to the facsimile number, in each
case, as follows:
if to Tenant: e.three Custom Energy Solutions, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Executive Director of Operations
With copy to: Sierra Pacific Energy Company
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx
Attn: General Counsel
and
if to the Landlord: Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Manager
Tel: (000) 000-0000
Fax: (000)000-0000
With copy to: Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
or to such other address or facsimile number as either party may hereafter
designate to the other by such notice.
All notices sent pursuant to this Agreement shall be deemed received (i) if
personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next Business Day immediately following the day
timely sent for overnight delivery, (iii) if sent by registered or certified
mail, then on the earlier of the third Business Day following the day sent or
when actually received, or (iv) by facsimile transmission as long as such
transmission and confirmation copy of such transmission is sent the same day
by any of the methods described in (i), (ii) or (iii) above.
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