EXHIBIT 10.12
Landlord: QNOV
Tenant: RED RIVER ENTERTAINMENT COMPANY, L.L.C.
RETAIL SPACE LEASE
ARTICLE I
ARTICLE I DEFINITIONS AND CERTAIN BASIC PROVISIONS
1.1 The following list sets out certain defined terms and certain
financial and other information pertaining to this Lease:
(a) "Landlord": QNOV
(b) Landlord's address: c/o HWCC-Louisiana, Inc.
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Attn.: President
(c) "Tenant": Red River Entertainment Company, L.L.C.
(d) Xxxxxx's address: 0000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxxx
with copies to: c/o Performa Entertainment Real Estate
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn.: Xxxx Xxxxxxxxx
Xxxxxxxxx, Dunlap, Xxxxxxx, Xxxxx & Xxxxxxx, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxx
(e) [INTENTIONALLY DELETED]
(f) [INTENTIONALLY DELETED]
(g) "Premises": approximately 40,000 square feet of retail space
(which 40,000 square feet of space includes a rear service corridor for the
retail space) contained in or located on a garage and surface parking lot of
the riverboat gaming development being planned by Landlord in Shreveport,
Louisiana on land to be leased by Landlord from the City of Shreveport, as
more particularly identified on Exhibit "A," incorporated herein and made a
part hereof for all purposes.
(h) "Commencement Date": the earlier of (i) 180 days after the
Premises are deemed "ready for tenant improvements" (as defined in Section
3.1 of this Lease), or (ii) the date the first retailer opens for business
in the Premises.
(i) "Lease Term": The initial term (the "Initial Term") of this Lease
shall commence on the Commencement Date and continuing through the Initial
Term as set forth and defined in the Ground Lease (defined herein).
Provided an Event of Default (hereinafter defined) has not occurred, or to
the extent an Event of Default has occurred it has been either waived by
Landlord or cured within the applicable cure period set forth in this Lease,
Tenant shall have three (3) five year options to renew this Lease of the
entire Premises in "as is" condition on the same terms and conditions herein
contained except that, from the commencement of the first five-year renewal
term through the remainder of the Lease Term, the Special Allocation
(hereinafter defined) shall not be deducted in determining Net Cash Flow
(hereinafter defined). Notice of Tenant's intention to exercise this option
must be given to Landlord in writing not less than one hundred eighty (180)
prior to the expiration of the Initial Term or the applicable renewal term.
These options shall apply only to Tenant and not to Subtenants of Tenant.
These options shall also be specifically subject to the buyout right of
Landlord described in Section 26.20, and in the event such right is
exercised by Landlord, the remainder of the applicable renewal term shall
terminate in accordance with Section 26.20, and upon such termination
neither party shall have any further rights or obligations hereunder. The
term "Lease Term" shall include the Initial Term and any renewal term at the
time that Tenant's option(s) to renew is properly exercised.
(j) "Minimum Guaranteed Rental": $6.00 per square foot annually,
payable in arrears in twelve (12) monthly installments per year.
(k) "Net Cash Flow": All cash received by Tenant in connection with
its operation of the Premises (excluding leasing commissions received by
Tenant) and premises adjacent thereto, including, without limitation, all
rentals and assessments for maintenance and repair costs received from
Subtenants, less the sum of Minimum Guaranteed Rental paid by Tenant to
Landlord, the Management Fee, the Special Allocation (as each such term is
hereinafter defined), and the actual maintenance, operating (e.g. insurance,
on-site personnel and marketing) and repair costs of Tenant (which shall
mean the documented maintenance, operating and repair costs of Tenant for
the Premises, but in no event shall such amount be greater than $7.00 per
square foot) for the Premises, provided, however, that during any renewal
term of this Lease, Net Cash Flow shall not be reduced by the Special
Allocation.
(l) "Percentage Rental": For each calendar year during the Lease
Term, Percentage Rental shall equal the sum of (i) 50% of Tenant's Net Cash
Flow which does not exceed $550,000 per calendar year, (ii) thereafter, 25%
of Tenant's Net Cash Flow in excess of $550,000 and which does not exceed
$615,000 during the calendar year, and (iii) thereafter, 40% of Tenant's Net
Cash Flow during the calendar year. In the event that either the
Commencement Date is a date other than January 1st, or the termination date
of this lease is other than December 31st, Percentage Rental for each
partial calendar year during the Term shall be prorated. Such proration
shall be made by using the formula set forth in the definition of
"Percentage Rental" except that the numbers $550,000 and $615,000 contained
within the definition of the term "Percentage Rental" shall be replaced with
a number determined by multiplying $550,000 or $615,000, as applicable,
times a fraction (the "Percentage Rent Fraction"), the numerator of which
shall be the number of days that have elapsed in the relevant partial
calendar year and the denominator of which shall be the number of calendar
days i.e, either 365 or 366, in such calendar year. For example, Percentage
Rental for a partial calendar year commencing January 1st and ending August
31st shall be calculated as follows, assuming that Net Cash Flow for the
period is $750,000:
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Number of dates between (and including) January 1st and
August 31st in non-leap year = 243
243/365 = 66.58%
$550,000 x 66.58% = $366,190
$615,000 x 66.58% = $409,467
$750,000 - $409,467 = $340,533 x 40% = $136,213.20
$409,467 - $366,190 = $43,277 x 25% = 10,819.25
$366,190 x 50% = $183,095.00
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TOTAL $330,127.45
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(m) "Gross Sales" shall have the meaning set forth in Section 4.5 of
this Lease.
(n) "Permitted Use": The operation of retail and other like business
operations similar to what would be seen in urban commercial shopping
centers.
(o) "Subtenants": Any party or parties holding a right of possession
in the Premises, or any portion thereof, by virtue of a sublease or other
agreement with Tenant acting as landlord to said party, said Subtenants and
their respective subleases with Xxxxxx being subject to the prior written
approval of Landlord, which approval shall not be unreasonably withheld.
1.2 This Lease is subject and subordinate to each ground or land
lease which may now or hereafter cover all or any portion of the Premises,
including but not limited to that certain Ground Lease dated May 19, 1999, by
and between the City of Shreveport ("Owner"), as landlord, and Landlord, as
tenant, covering the Premises and other property in the vicinity and underlying
the proposed development area of the aforementioned riverboat gaming project
(the "Ground Lease"). Tenant represents and acknowledges that it has read and
is familiar with the terms of the Ground Lease. Xxxxxxxx agrees that it will
not, without Xxxxxx's written consent, enter into any amendments or
modifications to the Ground Lease, the effect of which will materially and
adversely affect the rights of Tenant under this Lease. This Section 1.2 shall
be self-operative and no further instrument of subordination need be required by
any ground or land lessor. Tenant shall, however, upon Xxxxxxxx's request,
promptly execute any appropriate certificate or instrument in confirmation of
such subordination. Within ten (10) days after execution of this Lease by
Landlord and Tenant, Landlord shall request that Owner execute and deliver to
Tenant a Subordination, Attornment and Non-Disturbance Agreement in the form set
forth as Exhibit "E" to the Ground Lease. Notwithstanding the foregoing, the
lessor under any ground lease that may affect all or any portion of the Premises
or the holder of any mortgage or deed of trust that may encumber all or any
portion of the Premises may elect at any time to cause their interest in the
Premises to be subordinate and junior to Tenant's interest under this Lease by
filing an instrument in the immovable property records of each of Bossier and
Caddo Parish, Louisiana effecting such election and providing Tenant with notice
of such election. In the event of the enforcement by the Owner under the Ground
Lease of the remedies provided for by law or by the Ground Lease, Tenant
automatically will become the Tenant of the Owner without change in the terms or
other provisions of this Lease.
Xxxxxx also agrees that if, by reason of an event of default under the
Ground Lease, the Ground Lease is terminated, then Tenant, at the option and
request of the then owner of the Premises (the "Fee Landlord"), shall attorn to
such Fee Landlord as Tenant's direct landlord under this Lease and the Fee
Landlord shall recognize such Tenant as its direct tenant under this Lease.
Xxxxxx agrees to execute and deliver, at any time and from time to time, upon
the request of Landlord or of the Fee Landlord, or any mortgagee of either, any
instrument that may be necessary or appropriate to evidence such attornment.
Tenant hereby appoints Landlord, each such Fee Landlord and each such mortgagee
the mandatary and attorney-in-fact, irrevocably, with full power of
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substitution, of Tenant to execute and deliver any such instrument for and on
behalf of Tenant. This appointment is coupled with an interest and is
irrevocable. Tenant waives any statute or rule of law now or subsequently in
effect that may give or purport to give Tenant any right to elect to terminate
this Lease or to surrender possession of the Premises in the event any
proceeding is brought by a Fee Landlord to terminate any such underlying lease.
Xxxxxx agrees that this Lease shall not be affected in any way whatsoever by any
such proceeding.
1.3 Tenant shall not do anything, nor permit anything to be done,
that would cause the Ground Lease to be terminated or forfeited because of any
right of termination or forfeiture reserved or vested in the landlord under the
Ground Lease, or that would cause Landlord to be in default under the Ground
Lease, and Tenant will, and does hereby, indemnify and hold Landlord and its
partners and their respective officers, directors, members, shareholders,
employees and agents harmless from and against all claims of any kind resulting,
directly or indirectly, from or by reason of any act or omission on the part of
Tenant, or any of its assignees or Subtenants, which may result in the Ground
Lease being terminated or forfeited, or by reason of which Tenant or any of its
assignees or Subtenants may be found to be in default under the Ground Lease.
Tenant shall, and does hereby, indemnify and hold harmless Landlord and its
partners and their respective officers, directors, members, shareholders,
employees and agents from all claims, damages, loss, liability and obligation,
including reasonable attorneys' fees and court costs, due to the possession,
use, occupation, operation, assignment and/or subletting of the Premises by
Tenant or its assigns or any Subtenant.
1.4 In the event of termination of the Ground Lease due to any
casualty suffered by the Premises, condemnation of the Premises or any part
thereof or destruction of the whole or any portion of the Premises, or for any
other reason, including without limitation any right of termination granted to
Landlord, Owner or any Fee Landlord under the Ground Lease, this Lease shall
cease and terminate upon the same date that the Ground Lease terminates. Such
cancellation shall become effective without further notice upon the termination
of the Ground Lease, and Tenant shall at that time immediately relinquish
possession of the Premises. Upon the effective date of such cancellation,
neither Landlord nor Tenant shall have any liability or obligation to the other
pursuant to this Lease, except for liabilities or obligations that accrued prior
to the effective date of such cancellation. Xxxxxx agrees and acknowledges that
Landlord is under no obligation to obtain the financing (the "Financing")
necessary to complete the Shoreside Complex, including, without limitation, the
Parking Facilities (as such terms are defined in the Ground Lease). Xxxxxx also
agrees and acknowledges that Landlord is under no obligation to complete the
Shoreside Complex, including, without limitation, the Parking Facilities (as
defined in the Ground Lease), unless and until Landlord actually obtains the
Financing.
ARTICLE II
GRANTING CLAUSE
2.1 Landlord hereby leases the Premises to Tenant, and Tenant hereby
leases the Premises from Landlord, upon and subject to the terms and conditions
set forth in this Lease.
ARTICLE III
DELIVERY OF PREMISES
3.1 Landlord will deliver the Premises to Tenant in a condition
"ready for tenant improvements", meaning in a condition so as to include:
structural enclosures consisting of walls, roof and a concrete floor; exterior
enclosures consisting of the main front facade; rear dividing walls and service
corridor walls (typically built of concrete block); and roughed-in utilities
including (a) water, power, sewer, gas, telephone and CATV for extension by
Tenant , and (b) six (6) individual HVAC rooftop units providing a total of 250
tons of cooling; provided, Tenant, on the date that the first installment of
Minimum Guaranteed Rental is due hereunder, shall pay
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to Landlord, as additional Xxxx xxxxxxxxx, an amount equal to one-half (1/2) of
the costs incurred by Landlord in connection with the purchase and installation
of the air handlers and related equipment and fixtures providing cooling to the
Premises. Xxxxxxxx also agrees to provide up to 200 parking spaces to Tenant or
Tenant's guests, customers, invitees or employees. Such parking spaces shall be
provided free of charge unless Landlord charges its own guests, customers,
invitees or employees for such parking, in which event Tenant shall pay for each
such parking space at the rates charged to the public. Xxxxxx agrees and
acknowledges that such parking spaces are unassigned and included within the no
less than 1500 unassigned parking spaces to be included within the Parking
Facilities.
TENANT ACKNOWLEDGES AND AGREES THAT ITS OCCUPANCY OF THE PREMISES SHALL BE
DEEMED TO MEAN THAT TENANT HAS AGREED AS FOLLOWS: SUBJECT TO THE MAINTENANCE
OBLIGATIONS OF LANDLORD SET FORTH IN ARTICLE IX HEREOF, TENANT HAS INSPECTED THE
PREMISES AND HAS ACCEPTED THE PREMISES "AS-IS", "WHERE-IS", IN THEIR EXISTING
CONDITION, ACKNOWLEDGES THAT THE PREMISES ARE IN GOOD AND SATISFACTORY
CONDITION, AND HEREBY RENOUNCES AND WAIVES ALL REPRESENTATIONS AND WARRANTIES ON
THE PART OF LANDLORD, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION
OF THE PREMISES OR ITS FITNESS FOR A PARTICULAR PURPOSE, INCLUDING, WITHOUT
LIMITATION, ALL WARRANTIES THAT THE PREMISES ARE FREE OF VICES, DEFECTS OR
DEFICIENCIES, WHETHER LATENT, HIDDEN OR APPARENT, AND ALL WARRANTIES WITH
RESPECT TO THE CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, ALL
WARRANTIES, IF ANY, THAT THE PREMISES ARE FREE OF ENVIRONMENTAL POLLUTION OR
DEFECTS, ITS FITNESS FOR A PARTICULAR PURPOSE OR ITS FREEDOM FROM DEFECTS OR
DEFICIENCIES AND ALL OTHER WARRANTIES THAT ARE SET FORTH UNDER LA. CIV. CODE
ARTS. 2692-2695, AND LANDLORD HEREBY DISCLAIMS ALL SUCH WARRANTIES. TENANT
AGREES THAT LANDLORD WILL HAVE NO OBLIGATION TO MAKE ANY IMPROVEMENTS TO THE
PREMISES OR, SUBJECT TO THE MAINTENANCE OBLIGATIONS SET FORTH IN ARTICLE IX
HEREOF, TO MAINTAIN, REPAIR OR OTHERWISE UNDERTAKE ANY ACTIVITIES WITH RESPECT
TO THE PREMISES. TENANT ACKNOWLEDGES THAT THE FOREGOING WAIVERS HAVE BEEN
BROUGHT TO THE ATTENTION OF TENANT AND EXPLAINED IN DETAIL TO IT AND THAT
TENANT HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO THE FOREGOING WAIVERS.
__________________
Tenant's Initials
The Premises are leased subject to the existing state of title. Landlord
shall not have any liability whatsoever in respect of or arising out of the
construction or condition of the Premises. Notwithstanding the foregoing, upon
the request of Tenant, Landlord shall assign to Tenant, on a non-exclusive
basis, all construction and manufacturer warranties, if any, related to the
Landlord's work performed in the Premises, if any, prior to Tenant's occupancy
thereof (to the extent such warranties are assignable on a non-exclusive basis).
Landlord represents and warrants that as of the date this Lease is executed by
Landlord, Landlord has a leasehold interest in the Premises subject to the
existing state of title, and that Landlord has full right, power and lawful
authority to execute, deliver and perform its obligations under this Lease, in
the manner and upon the terms contained herein, and to grant the leasehold
estate herein demised, with no other person needing to join in the execution
hereof in order for this Lease to be binding on Landlord. In the event the
Premises are not ready for tenant improvements on or before December 31, 2001,
this Lease shall automatically terminate and the parties hereto shall have no
further rights or obligations hereunder other than those rights or obligations
accruing prior to such termination and those pursuant to which the express terms
of this Lease survive the termination or expiration hereof. Additionally, in
the event Landlord is unable to obtain the Financing on or before January 1,
2000, either party may, upon written notice to the other party, terminate this
Lease. Thereafter, neither party shall have any rights or obligations under this
Lease except rights or obligations accruing prior to the date of termination of
this Lease and those which by the express terms of this Lease survive the
termination or expiration hereof.
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ARTICLE IV
RENT
4.1 Minimum Guaranteed Rental and Percentage Rental (herein, together
and collectively with any additional rent and other amounts payable by Tenant to
Landlord hereunder, the "Rent") shall accrue from the Commencement Date, and
shall be payable to Landlord at Landlord's principal address c/o HWCC-Louisiana,
Inc., Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX 00, Xxxxxx, Xxxxx
00000, or, at Landlord's option, in the Parish where the Premises are located,
and shall be payable without demand, presentment or notice (except as may be
otherwise expressly provided herein to the contrary). All amounts and
obligations that Tenant is required to pay or perform pursuant to this Lease,
together with every penalty and interest that may be added for non-payment, non-
performance or late payment thereof (as set forth in Section 4.9 hereof), shall
constitute Rent under this Lease. Time is of the essence with respect to
payment and performance of Xxxxxx's obligations hereunder.
4.2 Tenant shall pay to Landlord Minimum Guaranteed Rental in monthly
installments in the amounts specified in Section 1.1(j) of this Lease. The
first such monthly installment shall be due and payable on or before the last
day of the month in which the Commencement Date occurs, and subsequent
installments shall be due and payable on or before the last day of each
succeeding calendar month during the Lease Term; provided that if the
Commencement Date is a date other than the first day of a calendar month, there
shall be due and payable on or before the last day of such month as Minimum
Guaranteed Rental for such calendar month a sum equal to that proportion of the
Minimum Guaranteed Rental specified for the first full calendar month as herein
provided, which the number of days from the Commencement Date to the end of the
calendar month during which the Commencement Date shall fall bears to the total
number of days in such month.
4.3 In addition to the Minimum Guaranteed Rental, Tenant shall also
pay to Landlord, for each calendar year during the Lease Term, Percentage Rental
determined according to Section 1.1(l) of this Lease. Percentage Rental shall be
paid in quarterly or monthly installments (as the case may be) as follows: On
or before the 25th day of each April and October during the Lease Term, Tenant
shall pay to Landlord a sum of money equal to the Percentage Rental made in or
from the Premises during the previous three (3) months, as the case may be. In
addition, on or before the 25th day of each May, June, July, November, December
and January, Tenant shall pay to Landlord a sum of money equal to the Percentage
Rental made in or from the Premises during the previous calendar month. In the
event that the total of the quarterly or monthly payments (as the case may be)
of Percentage Rental for any calendar year is not equal to the annual Percentage
Rental computed on the amount of Net Cash Flow for such calendar year in
accordance with the Section 1.1(1), then Tenant shall pay to Landlord any
deficiency or Landlord shall refund to Tenant any overpayment, as the case may
be, within ninety (90) days after the end of such calendar year. In no event
shall the Rent to be paid by Tenant and retained by Landlord for any calendar
year be less that the annual Minimum Guaranteed Rental specified in this Lease.
4.4 In the event that either the Commencement Date is a date other
than January 1st, or the termination date of this Lease is a date other than
December 31st, Percentage Rental for any fractional part of a calendar year
following the Commencement Date or preceding the termination date, as the case
may be, shall be prorated to account for the partial calendar year as set forth
in Section 1.1(1). Upon the termination of this Lease, Tenant shall make a
payment of Percentage Rental for the final month or partial calendar month of
the Lease Term determined in accordance with (and subject to) the provisions of
the third sentence of Section 4.3 above.
4.5 The term "Gross Sales" as used in Section 4.3 and elsewhere in
this Lease shall be construed to include the entire amount of the sales price,
whether for cash or otherwise (including the full purchase price of purchases in
whole or in part by means of gift certificates, advertising certificates or
trade-ins), of all sales of food and drink items, merchandise and services, and
other receipts whatsoever, of all business conducted in or from the
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Premises, including, by way of illustration (but in no way limited to), mail or
telephone orders received or filled at the Premises, catering orders received at
or filled from the Premises, "layaways" and other deposits (offset by such sums
refunded to customers), orders taken (although such orders may be filled
elsewhere), sales to employees, sales through vending machines, electronic games
or other devices, and sales by any Subtenant, concessionaire, licensee or
otherwise (as well as licensee fees, franchise fees and similar fees) in or from
the Premises. Each sale upon installment or credit shall be treated as a sale
for the full price in the month during which the sale was made, regardless of
the time when Tenant or any Subtenant, as applicable, receives payment from its
customer. No deduction shall be allowed for uncollected or uncollectible credit
accounts. Gross Sales shall not include, however, any sums collected and paid
out for any sales or excise tax imposed by any duly constituted governmental
authority, nor the amount of returns to shippers or manufacturers, nor the
amount of any cash or credit refund made upon any sale when the merchandise,
food, beverages, or service sold, or some part thereof, is thereafter returned
by a customer and accepted by Tenant or any Subtenant, as applicable, nor the
receipts from sales not made in the ordinary course of business of furniture,
trade fixtures or equipment, nor shift meals or meals served to an employee
while on duty or meals served to employees at a discount.
4.6 It is understood that Minimum Guaranteed Rental is payable on or
before the last day of each calendar month (in accordance with Section 4.2
above) and Percentage Rental is payable as set out in Section 4.3 above, without
offset or deduction of any nature.
4.7 If Tenant fails for two consecutive months to make Rent payments
within ten days of the date due, Landlord, in order to reduce its administrative
costs, may require, by giving written notice to Tenant (and in addition to any
late charge or interest accruing pursuant to Section 4.9, as well as any other
rights and remedies accruing pursuant to Article XX or Article XXI below, or any
other provision of this Lease or at law), that Minimum Guaranteed Rentals be
paid quarterly in advance instead of monthly in arrears and that all future Rent
payments are to be made on or before the due date by cash, cashier's check, or
money order and that the delivery of Xxxxxx's personal or corporate check will
no longer constitute a payment of Rent as provided in this Lease. Any
acceptance of a Rent payment or of a personal or corporate check thereafter by
Landlord shall not be construed as a subsequent waiver of said rights.
4.8 Tenant shall pay its obligations under Article VI (which shall
initially be as set forth in Section 4.2 hereof) on the last day of each month
without notice or demand. If subsequently notified by Landlord of any change in
such monthly amount (which Landlord may do from time to time), Tenant shall then
pay such new amount each month without notice or demand.
4.9 In the event any Rent (including, but not limited to, Minimum
Guaranteed Rental, Percentage Rental or any other obligations of Tenant
constituting Rent hereunder) is not received within 10 days after its due date
for any reason whatsoever, then in addition to the past due amount, Tenant shall
pay to Landlord one of the following (the choice to be at the sole option of
Landlord unless one of the choices is illegal under applicable law, in which
event the other alternative will automatically be deemed to have been selected):
(a) a late charge in an amount equal to ten percent (10%) of the Rent then due,
in order to compensate Landlord for its administrative and other overhead
expenses; or (b) interest on the Rent due at the maximum contractual rate which
could legally be charged in the event of a loan of such Rent to Tenant (but in
no event to exceed 1 1/2% per month), such interest to accrue continuously on
any unpaid balance due to Landlord by Xxxxxx during the period commencing with
the Rent due date and terminating with the date on which Xxxxxx makes full
payment of all amounts owing to Landlord at the time of said payment. Any such
late charge or interest payment shall be payable as additional Rent under this
Lease, shall not be considered as a deduction from Percentage Rental or any
other Rent, and shall be payable immediately on demand.
4.10 Management Fee. As used herein, the term "Management Fee" shall
be defined as a fee, in consideration of Tenant's management of the Premises,
equal to five (5%) percent of all rent derived and received by Tenant from any
and all Subtenants of the Premises.
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4.11 Special Allocation. As used herein, the term "Special
Allocation" shall be defined as an allocation of $51,083.33 per month.
ARTICLE V
SALES REPORTS, RECORDS AND FINANCIAL STATEMENTS
5.1 On or before the 25th day of each calendar month during the Lease
Term, Tenant shall cause to be delivered to Landlord, at the place where Rent is
then payable, a certified statement of Gross Sales (of Tenant and all
Subtenants) made from the Premises during the preceding calendar month. In
addition, within ninety days after the expiration of each calendar year and
within sixty days after the termination of this Lease if this Lease should not
terminate at the end of a calendar year, Tenant shall prepare and deliver to
Landlord, at the place where Rent is then payable, statements of Gross Sales (of
Tenant and all Subtenants) made from the Premises during the preceding calendar
year (or partial calendar year), certified to be correct by the chief financial
officer of Tenant or an independent certified public accountant. All such
statements shall be in such form as the Landlord may reasonably require and, if
requested by Landlord, Tenant also shall provide to Landlord copies of sales
reports submitted by Tenant and all Subtenants to the applicable governmental
authority to whom sales reports must be furnished for sales tax purposes.
Tenant acknowledges Xxxxxxxx's need for prompt, accurate sales records, inasmuch
as those records not only form the basis for Percentage Rental, but also enable
Landlord to monitor the success of the Premises. Tenant also acknowledges that
its failure to submit statements of Gross Sales as required above will result in
additional (although not readily ascertainable) expenses to Landlord. Tenant
therefore agrees that if it does not deliver to Landlord a statement of Gross
Sales (of Tenant and all Subtenants) within ten (10) days following delivery to
Tenant of a written demand from Landlord, then notwithstanding anything to the
contrary contained elsewhere in this Lease, the Minimum Guaranteed Rental for
the particular month during which the aforesaid statements were due and for each
month thereafter (until such statements are delivered) shall automatically be
doubled. In addition, if Tenant fails for two consecutive calendar months to
deliver statements of Gross Sales within the times specified in the first two
sentences of this Section 5.1, then for the remainder of the Lease Term the
prerequisite of a written demand from Landlord shall cease and thereafter the
Minimum Guaranteed Rental increase provided for in the immediately preceding
sentence shall be applicable for any calendar month in which the required
statement of Gross Sales is not delivered to Landlord within ten (10) days
following the prescribed due date. The rights of Landlord under this Section
5.1 are cumulative with the rights prescribed in Section 5.3, Article XX and
elsewhere in this Lease, at law or in equity.
5.2 Tenant shall keep in the Premises, and at Tenant's home office in
Memphis, TN, a permanent, accurate set of books and records of Net Cash Flow and
of all Gross Sales, including, without limitation, sales of merchandise and
other revenue, derived from the businesses of Tenant and all Subtenants
conducted in the Premises, and all supporting records such as tax reports and
banking records. All such books and records shall be retained and preserved for
at least twenty-four months after the end of the calendar year to which they
relate, and shall be subject to inspection and audit by Landlord and its agents
at all reasonable times.
5.3 In the event Tenant fails to deliver statements of Net Cash Flow
and of Gross Sales for two consecutive months or in the event that Landlord is
not satisfied with the statements of Gross Sales or of Net Cash Flow submitted
by Tenant, Landlord shall be entitled to have its auditors make a special audit
of all books and records, wherever located, pertaining to Gross Sales made in or
from the Premises and Net Cash Flow. If Xxxxxx's statements of Gross Sales or
of Net Cash Flow are found to be incorrect to an extent of more than two percent
(2%) below the figures reflected in an audit of Gross Sales or of Net Cash Flow,
or if Tenant has failed to deliver such statements timely, Tenant shall pay for
such audit. In addition, Tenant shall promptly pay to Landlord any deficiency
which is established by such audit.
5.4 Landlord shall use reasonable efforts to keep confidential all
sales reports, records and financial statements supplied by Xxxxxx; provided,
Landlord shall have the right to reveal such information to mortgagees,
prospective purchasers or lessees, any and all regulatory agencies, including,
but not limited to, the Louisiana
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Gaming Control Board and the Louisiana State Police, Xxxxxxxx's own managerial
and administrative staff and as may otherwise be required by law. Landlord shall
have no liability whatsoever, including, but not limited to, consequential
damages, to Tenant or any Subtenant, or their businesses, as a result of any
breach of the foregoing covenant for whatever cause or reason.
ARTICLE VI
TENANT'S RESPONSIBILITY FOR TAXES, OTHER
REAL ESTATE CHARGES AND INSURANCE EXPENSES
6.1 Tenant shall be liable for all personal property, inventory and
other taxes levied against personal property and trade fixtures placed by Tenant
or any Subtenant in the Premises. If (i) any such taxes are levied against
Landlord, Landlord's property or Landlord's leasehold interest in the Premises
and (ii)(x) if Landlord elects to pay the same or (y) if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant or any Subtenant in the Premises and Landlord elects
to pay the taxes based on such increase, Tenant shall pay to Landlord, upon
demand, that part of such taxes for which Tenant is primarily liable hereunder.
6.2 During the Lease Term, Tenant also shall be liable for, and shall
pay to Landlord, Xxxxxx's Proportionate Share (as defined below) of all Real
Estate Charges (as defined below) and Insurance Expenses (as defined below)
related to the Premises, as additional Rent hereunder. Tenant's obligations
under this Section 6.2 shall be prorated during any partial calendar year (i.e.
the first year and the last year of the Lease Term). "Tenant's Proportionate
Share" shall be a fraction, as reasonably determined by Landlord, the numerator
of which shall be the total floor area in the Premises and the denominator of
which shall be the total leasable floor area of the Shoreside Complex (as
defined in the Ground Lease) at the time when the respective charge was incurred
(excluding, however, areas for which any such Real Estate Charge or Insurance
Expense is paid by a party or parties other than Landlord). "Real Estate
Charges" shall include ad valorem taxes, general and special assessments,
parking surcharges, taxes or excises on rents, taxes and charges for
governmental services (such as street maintenance or fire protection), and any
tax or charge which replaces any such above described Real Estate Charges;
provided, however, that Real Estate Charges shall not be deemed to include any
franchise, estate, inheritance or general income tax. "Insurance Expenses"
shall include all premiums and other expenses incurred by Landlord for liability
insurance and fire and extended coverage property insurance (plus whatever
endorsements or special coverages Landlord, in Landlord's sole discretion, may
consider appropriate).
6.3 Landlord and Tenant shall attempt to obtain separate assessments
for Tenant's obligations pursuant to Section 6.1 and, with respect to Section
6.2, for as much of the Real Estate Charges as are readily susceptible of
separate assessment. To the extent of a separate assessment, Xxxxxx agrees to
pay such assessment before it becomes delinquent and to keep the Premises free
from any lien or attachment. This covenant of Tenant shall survive the
termination or expiration of the Lease Term. With regard to the calendar year
during which the Lease Term expires, Landlord, at its option, either may bill
Tenant when the charges become payable or may charge the Tenant an estimate of
Xxxxxx's Proportionate Share of such charges (based upon information available
for the current year plus, if current year information is not adequate in
itself, information relating to the immediately preceding year).
6.4 If at any time during the Lease Term, Landlord has reason to
believe that at some time within the immediately succeeding twelve (12) month
period Tenant will owe Landlord an additional payment pursuant to one or more of
the preceding sections of this Article VI, Landlord may direct that Tenant
prepay monthly a pro rata portion of the prospective future payment (i.e. the
prospective future payment divided by the number of months before the
prospective future payment will be due). Xxxxxx agrees that any prepayment
directed by Xxxxxxxx shall be due and payable monthly on the same date that
Minimum Guaranteed Rental is due, without further notice or demand, as
additional Rent hereunder.
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6.5 Tenant shall have the right (unless Landlord shall in good faith
agree to contest, at Xxxxxx's sole expense, such tax imposition) to contest or
resist, in good faith, diligently and by appropriate proceedings, the validity
of the amount or rate of any tax or Real Estate Charge or any increase or
proposed increase of any tax or Real Estate Charge, all at Tenant's sole
expense. If Landlord shall agree to contest such tax or Real Estate Charge,
Landlord shall do so at Tenant's expense (the cost of which contest, if
involving property of Landlord in addition to the Premises, shall be allocated
by Landlord to Tenant on a reasonable and equitable basis) and Tenant shall have
the right to monitor Xxxxxxxx's contest thereof. If Landlord elects not to
contest such tax or Real Estate Charge or, having elected to contest such tax or
Real Estate Charge, fails to contest such tax or Real Estate Charge diligently
and in good faith and such failure continues uncured beyond a reasonable time
following written notice from Tenant to Landlord, Tenant shall have the right to
itself contest such tax or Real Estate Charge. It shall be a condition
precedent to Xxxxxx's right to contest any such tax or Real Estate Charge that
Tenant provide Landlord with security (in a form (i) reasonably acceptable to
Landlord and (ii) acceptable to Landlord's mortgagee, if any) in an amount
reasonably necessary to assure full payment of such tax or Real Estate Charge
being contested, together with all penalties, fines and interest and other fees
and amounts that could be collected by the taxing authority in case the contest
is unsuccessful (but in any event not less than the amount required by
Xxxxxxxx's mortgagee in connection with the contest of taxes or Real Estate
Charges). Tenant shall in all events pay all such contested taxes or Real
Estate Charges (together with all penalties, fines, interest and such other fees
and amounts) at least 30 days prior to the date on which the Premises (or any
portion thereof) would be subject to foreclosure on account of nonpayment
thereof. Tenant shall, and does hereby, indemnify and hold harmless Landlord
and its partners and their respective officers, directors, shareholders,
members, employees and agents from and against any and all expenses, liabilities
and claims (including but not limited to attorneys' fees and litigation
expenses) incurred by or asserted against Landlord or the Premises arising as a
result of any such contest by Xxxxxx. Landlord and Xxxxxx agree to reasonably
cooperate with one another in connection with all contests of taxes or Real
Estate Charges under this Lease.
ARTICLE VII
COMMON AREAS
7.1 Tenant acknowledges and agrees that patrons and customers of the
Premises and of the riverboat gaming project of Landlord each will use the Texas
Street Bridge Property (as defined in Section 26.21 hereof) for various
purposes. Landlord, in its sole discretion, may provide security personnel and
other security measures, as Landlord, in its sole discretion, deems necessary or
desirable for the protection of the aforesaid patrons and customers. Xxxxxx
agrees to reimburse Landlord from time to time, upon the receipt by Tenant of
invoices from Landlord, as additional Rent hereunder, for a proportionate share,
as determined by Landlord in its reasonable opinion, of the costs and expenses
incurred by Landlord in providing security personnel and other security measures
for the Texas Street Bridge Property. Notwithstanding the foregoing, under no
circumstances shall Landlord be liable to Tenant, any Subtenant, any customer of
Tenant or Subtenant, or any other person or entity for breaches of security,
including, without limitation, thefts, assaults or other crimes, occurring on or
about the Texas Street Bridge Property.
ARTICLE VIII
USE AND CARE OF PREMISES
8.1 Tenant shall operate and maintain the Premises in an efficient,
high class and reputable manner so as to produce, and cause the production of,
the maximum amount of Gross Sales from the Premises. Tenant shall not at any
time leave the Premises vacant, but shall in good faith continuously throughout
the Lease Term
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conduct and operate, and cause the conduct and operation of, in the entire
Premises the types of businesses for which the Premises are leased.
8.2 The Premises may be used only for the purpose or purposes
specified in Section 1.1(n) above and for no other purpose without the prior
written consent of Landlord. Xxxxxxxx agrees, however, that it will not
withhold consent in an unreasonable and arbitrary manner (as further explained
in Section 26.4 of this Lease).
8.3 Neither Tenant nor any Subtenant shall, without Landlord's prior
written consent, keep anything within the Premises or use the Premises for any
purpose which increases the insurance premium cost or invalidates any insurance
policy carried on the Premises or other parts of the Shoreside Complex (as
defined in the Ground Lease). All property kept, stored or maintained within
the Premises by Tenant or any Subtenant shall be at such party's sole risk.
8.4 Neither Tenant nor any Subtenant shall conduct within the
Premises any bankruptcy, "going-out-of-business", "lost-our-lease" or similar
sale nor shall Tenant or any Subtenant operate within the Premises a "wholesale"
or "factory outlet" store, a cooperative store, a "second hand" store, a
"surplus" store or a store commonly referred to as a "discount house." Tenant
or its Subtenants may, however, conduct within the Premises fire sales or
auctions, but only with the prior written consent of Landlord. The purpose for
this restriction is the maintenance of a first-class shopping center image, not
price regulation. Therefore, Xxxxxxxx agrees that items may be sold, and on
occasion be advertised as being sold, at discounted prices as long as Tenant and
its Subtenant, as applicable, comply with all applicable laws and maintain an
image consistent with a first-class shopping center.
8.5 Neither Tenant nor any Subtenant shall: permit any objectionable
noises or odors to emanate from the Premises, take or permit any other action
which would constitute a nuisance, permit any unlawful or immoral practice to be
carried on or committed on the Premises, or do anything which would tend to
injure the reputation of the Premises. Neither Tenant nor any Subtenant shall,
without Landlord's consent, place or permit radio, television, loudspeaker,
amplifier, satellite dish, or other equipment, fixtures or improvements, on the
roof or outside the Premises or where the same can be seen or heard from outside
the building within which the Premises are located, or place any antenna,
equipment or other projection on the exterior of the Premises, except for music
set at reasonable volume levels in the patio areas of Subtenants' spaces, said
volume levels to be subject to the approval of Landlord (which shall not be
unreasonably withheld). Tenant shall not do, nor shall it cause or permit any
of its Subtenants, agents, representatives, employees or customers to do, any
act or thing that would damage or injure any part of the Premises or any persons
or property located on or about the Premises.
8.6 Tenant shall, and shall cause all Subtenants to, take good care
of the Premises and keep the same free from waste at all times. Neither Tenant
nor any Subtenant shall overload the floors in the Premises or deface or injure
the Premises. Tenant shall keep the Premises, and all sidewalks, service-ways,
loading areas and other common areas adjacent to the Premises, neat, clean and
free from dirt, rubbish, ice and snow at all times. Tenant shall store, and
cause the storage of, all trash and garbage within the Premises, or in a trash
dumpster or similar container reasonably approved by Landlord as to type,
location and screening, and Tenant shall arrange for the regular pick-up of such
trash and garbage at Tenant's expense (unless Landlord finds it necessary to
furnish such a service, in which event Tenant shall be charged, and Tenant shall
pay, an equitable portion of the total of charges to all tenants using the
service, with such charge being based upon the market price paid by Landlord
without markup). Receipt and delivery of goods and merchandise and removal of
garbage and trash shall be made only in the manner and from areas reasonably
prescribed by Landlord. Neither Tenant nor any Subtenant shall operate an
incinerator or burn trash or garbage within the Premises or in the vicinity
thereof. Tenant shall not dispose, or allow disposal, of any substances into
the storm or sanitary sewers that would be unlawful, would injure or clog such
lines or would subject Landlord to liability or expense.
8.7 Tenant and all Subtenants shall maintain all display windows in a
neat, attractive condition and keep all display windows, exterior electric signs
and exterior lighting under any canopy in front of the Premises
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lighted from dusk until 11:00 p.m. every day, including Sundays and holidays (or
any other times reasonably established by Landlord for the Premises). All signs,
lighting and canopies shall be subject to the written approval of Landlord
before their attachment or implementation into the Premises, such approval not
to be unreasonably withheld.
8.8 Tenant and each Subtenant shall procure, at their sole cost and
expense, all permits and licenses required for their transaction of business in
the Premises and each shall otherwise comply with all applicable laws,
ordinances and governmental regulations. In addition, if the nature of Tenant's
or any Subtenant's business makes it advisable for Tenant or a Subtenant to take
any extra precautions (for example, in the case of a business which is affected
by so-called "dram shop" laws, Tenant's or a Subtenant's compliance with all
"dram shop" educational programs and procedures), Tenant or such Subtenant shall
take all such extra precautions as may be prudent, required or desirable. At
Landlord's request, Tenant shall deliver to Landlord copies of all such permits
and licenses and proof of Tenant's and each Subtenant's compliance with all such
laws, ordinances, governmental regulations and extra precautions.
ARTICLE IX
MAINTENANCE AND REPAIR OF PREMISES
9.1 Landlord shall keep the foundation, the exterior walls (except
plate glass, windows, doors, door closure devices and other exterior openings,
window and door frames, molding, special store fronts, lighting, plumbing and
other electrical, mechanical and electrical installations, equipment and
fixtures, signs, placards, decorations or other advertising media of any type,
and interior painting or other treatment of exterior walls) and roof of the
Premises in good repair. Landlord, however, shall not be required to make any
repairs occasioned by the acts or negligence of Tenant, its agents, employees,
Subtenants, licensees, customers or concessionaires, and the provisions of the
previous sentence are expressly recognized to be subject to the provisions of
Article XV and Article XVI of this Lease. In the event that the Premises should
become in need of repairs required to be made by Landlord hereunder, Tenant
shall give immediate written notice thereof to Landlord, and Landlord shall not
be responsible in any way for its failure to make any such repairs until a
reasonable time shall have elapsed after receipt by Landlord of such written
notice. In the event that a situation arises because of a need for repair to
any part of the Premises for which Landlord would otherwise be responsible that
poses a threat of death or injury to any person thereon, Tenant may make the
necessary repairs, but only to the extent necessary to avoid said death or
injury, and after said repairs are made, Xxxxxx shall immediately notify
Landlord of the situation, at which time Landlord shall complete said repairs
and reimburse Tenant as necessary.
9.2 Tenant shall keep, and cause all Subtenants to keep, the Premises
in good, clean and habitable condition and shall, at its sole cost and expense,
keep the Premises free of insects, rodents, vermin and other pests. Tenant, at
its expense, shall make all necessary or desirable repairs and replacements to
the Premises, including replacement of cracked or broken glass, except for
repairs and replacements required to be made by Landlord under the provisions of
Section 9.1, Article XV and Article XVI. Without limiting the coverage of the
previous sentence, it is understood that Tenant's responsibilities include the
repair and replacement of all lighting, plumbing and other electrical and
mechanical installations, equipment and fixtures and also include all repairs to
ducts, conduits, pipes and wiring, and any sewer stoppage located in, under or
above the Premises, as well as in, under or above any area outside the Premises
if caused by the act, omission or negligence of Tenant, its agents, Subtenants,
contractors, licensees, customers or concessionaires (with any such repairs and
replacements outside the Premises to be made by Landlord at Tenant's cost). If
any repairs required to be made by Tenant hereunder are not made within ten days
(or within a shorter period designated by Landlord in a notice to Tenant if
Landlord determines, in its sole discretion, that such shorter period is
necessary or desirable for reasons of safety, compliance with applicable laws or
the benefit or convenience of other tenants or users of the Premises) after
written notice delivered to Tenant by Landlord, Landlord may, at its option,
make such repairs without liability to Tenant or any Subtenant for any loss or
damage to the property or business of Tenant or any Subtenant by reason
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of such repairs. Tenant shall pay to Landlord, upon demand, as additional Rent
hereunder, the cost of such repairs, together with interest at the maximum
contractual rate which could legally be charged in the event of a loan of such
payment to Tenant (but in no event to exceed 1 1/2% per month), such interest to
accrue continuously from the date of payment by Landlord until repayment by
Xxxxxx. At the expiration of this Lease, Xxxxxx shall surrender the Premises in
good condition, reasonable wear and tear and losses required to be restored by
Landlord pursuant to Section 9.1, Article XV and Article XVI of this Lease
excepted.
9.3 Landlord, at the expense of Tenant, covenants and agrees to
employ a suitable contractor to perform routine maintenance on the air-
conditioning system serving the Premises, including, but not limited to, timely
(at least monthly) changing of filters, adjustment and inspection of air
handling mechanism and control equipment, and inspection, maintenance and
performance of necessary lubrication, testing and other such normal maintenance
procedures. Tenant shall reimburse Landlord, upon demand, as additional Rent
hereunder, for all costs and expenses incurred by Landlord in connection with
such maintenance. Nothing contained in this Article shall be deemed to be a
guarantee by the Landlord of the performance or responsibility of any contractor
engaged by Landlord as herein provided, and Tenant hereby waives all claims for
damages to persons or property sustained by Xxxxxx, any Subtenant or any person
claiming by through or under Tenant or any Subtenant resulting from or in any
way concerned with Landlord's employment of a contractor pursuant to the
provisions of this Section 9.3. So long as Landlord causes the required
maintenance procedure on such air-conditioning system to be performed, Tenant
shall be responsible for the cost of replacing all duct work, motors and
condenser coils within such system. Landlord shall have no responsibility for
any replacement of the aforesaid air-conditioning system or any components
thereto beyond that set forth in this Section 9.3. Tenant shall have the right
to inspect the air-conditioning system serving the Premises and any records of
maintenance performed on such air-conditioning system at any time during the
Lease Term. Should Tenant, in its reasonable discretion after written notice
to Landlord and the lapse of a reasonable period of time for Landlord to correct
the then existing situation, determine that such servicing has been inadequate
to protect the integrity of such air-conditioning system or that the requisite
maintenance contract is not in full force and effect, Tenant shall have the
right, but not the obligation, to perform such maintenance, or contract on
behalf of Landlord for the performance of such maintenance, as Tenant shall, in
its reasonable judgment, deem appropriate, and Xxxxxxxx agrees to permit Tenant
to offset against Rent owing hereunder, any and all reasonable costs incurred by
Tenant with respect thereto. Tenant will be reasonable in the exercise of its
rights under this Section and shall first afford Landlord written notice and a
reasonable period of time to address the situation itself before Tenant
exercises any right under this Section.
ARTICLE X
ALTERATIONS AND IMPROVEMENTS
10.1 Neither Tenant nor any Subtenants shall make or add any
permanent or non-movable alterations, additions, improvements, fixtures or
equipment to the Premises without the prior written consent of Landlord, except
for the installation of unattached, readily movable trade fixtures which may be
installed in the Premises without drilling, cutting or otherwise defacing the
Premises. All alterations, additions, improvements, equipment and fixtures
(including, without limitation, all floor coverings, wallcoverings, baseboards,
doors, door fixtures, windows, walls, electrical wiring and switches, lights,
plumbing, bathroom equipment, and all heating and air conditioning equipment,
but excluding Tenant's unattached, readily movable furniture and office
equipment) which may be made or installed upon the Premises by Landlord, Tenant,
any Subtenant or any other person or entity shall remain upon and be surrendered
with the Premises, without compensation therefor to Tenant, any Subtenant or any
other person or entity, and become the property of Landlord at the termination
of this Lease or Tenant's rights of possession under this Lease, unless Landlord
requests their removal, in which event Tenant shall remove the same and restore
the Premises (or other area where such property may be located) to their
original condition at Tenant's expense. Notwithstanding the foregoing, Tenant
may remove, so long as it restores the Premises to the condition existing prior
to their installation, any light fixtures, furniture, kitchen equipment,
security equipment or fire detection equipment. Tenant promptly shall repair
all damage to the
13
Premises resulting from any removal of property. This covenant shall survive any
expiration or termination of this Lease.
10.2 All construction work done by or on behalf of Tenant or any
Subtenant within the Premises shall be performed in a good and workmanlike
manner, in compliance with all governmental requirements, and in such manner as
to cause a minimum of interference with other construction in progress on the
Shoreside Complex (as defined in the Ground Lease) and with the transaction of
business relating thereto. Xxxxxx agrees to, and does hereby, indemnify and
hold Landlord and its partners and their respective officers, directors,
members, shareholders, employees and agents harmless from and against all
losses, liabilities and damages (including attorneys' fees and litigation
expenses) resulting from such work, and Tenant shall, if requested by Landlord,
furnish bonds or other security satisfactory to Landlord against such loss,
liability or damage. Tenant shall promptly pay each of its contractors,
subcontractors and suppliers as may be necessary to prevent the imposition or
assertion of any mechanic's, laborer's or materialman's lien on any of the
Premises or Tenant's or Landlord's leasehold interest therein. Nothing herein
contained shall be construed as constituting the consent or request of Landlord
that any contractor, subcontractor or supplier provide any labor, service or
material for any construction, repair or demolition in, of or to any of the
Premises. Landlord is not, and shall not be, liable for any labor, services or
materials furnished or to be furnished to Tenant or any Subtenant, and no
mechanic's, laborer's, materialman's or other liens for any such labor, services
or materials shall attach to or affect the interest of Landlord in any of the
Premises. Tenant shall reimburse Landlord, on demand, for Landlord's costs
incurred in complying with any laws or regulations applicable to any
construction, repair or demolition by or for Tenant.
10.3 In the event that Landlord elects to remodel or repair all or
any portion of the Premises, or modify or reconfigure any portions of the
Premises, Tenant will cooperate with such remodeling, repair, modification or
reconfiguration, including, without limitation, Tenant's tolerating temporary
inconveniences (and even the temporary removal of Tenant's signs in order to
facilitate such remodeling, repair, modification or reconfiguration as it may
relate to the exterior of the Premises), provided, in the event any election to
reconfigure portions of the Premises results in a displacement of Subtenants and
such Subtenants incur out-of-pocket costs as a result of such displacement,
Landlord will reimburse such Subtenants for reasonable, actual out-of-pocket
costs incurred as a result of such displacement upon receipt of the original
invoices therefor.
10.4 In the event Tenant or any Subtenant uses a general contractor
to perform construction work within the Premises, Tenant shall, prior to the
commencement of such work, require said general contractor to execute and
deliver to Landlord a waiver and release of any and all claims against Landlord
and liens against the Premises to which such contractor might at any time be
entitled. The delivery of the waiver and release of lien within the time period
set forth above shall be a condition precedent to the ability of Tenant or any
Subtenant to enter on and begin its construction work at the Premises and, if
applicable, to any reimbursement from Landlord for its construction work.
10.5 Construction of Improvements.
X. Xxxxxx, at Tenant's sole cost, risk and expense, shall construct,
erect and complete, and/or cause each of its Subtenants to construct, erect and
complete, improvements approved by Landlord in accordance with this Section
10.5(A) (the "Improvements") upon and within the Premises. The Improvements
shall be constructed by, or at the direction of, Tenant or its Subtenants in a
good and workmanlike manner and in compliance with all applicable building
codes, zoning ordinances and other regulations. The Improvements shall be
constructed by Tenant or its Subtenants on the Premises substantially in
accordance with plans and specifications approved by Landlord, which approval
shall not be unreasonably withheld or delayed. The approval process for the
Improvements shall be as follows:
1. Tenant shall submit preliminary plans and specifications for the
Improvements to be constructed, erected and completed by it and/or its
Subtenants to Landlord;
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2. Landlord shall have fifteen (15) days after receipt of such
preliminary plans and specifications to approve or disapprove of same,
and such preliminary plans and specifications shall be deemed approved
if Landlord fails to respond in writing to Tenant prior to the
expiration of said fifteen (15) day period;
3. Tenant, within sixty (60) days after Landlord's approval or deemed
approval of the preliminary plans and specifications for the
Improvements, shall complete and submit to Landlord final plans and
specifications, which plans and specifications must be in substantial
conformity to the preliminary plans and specifications approved or
deemed approved by Landlord;
4. Landlord shall have thirty (30) days after its receipt of such final
plans and specifications to approve or disapprove of same, and such
final plans and specifications shall be deemed approved if Landlord
fails to respond in writing to Tenant prior to the expiration of said
thirty (30) day period;
5. Tenant, after approval or deemed approval of the final plans and
specifications, may commence construction of the Improvements shown in
the approved (or deemed approved) final plans and specifications.
B. After commencement of construction of the Improvements, Tenant
covenants and agrees to complete, or cause its Subtenants to complete, as
applicable, construction of the Improvements with reasonable diligence, subject
to the provisions of this Section 10.5 and in conformity with the approved final
plans and specifications therefor. Tenant may thereafter alter, renovate,
reconfigure and/or replace the Improvements, or authorize its Subtenants to
alter, renovate, reconfigure and/or replace the Improvements, and build new
improvements subject to the approval process set forth in this Section 10.5;
provided, however, Landlord's approval shall not be required for any
Improvements of Tenant or any Subtenant totaling no more than $40,000,
individually or in the aggregate, that do not alter the "storefront" or exterior
of the Premises. When available, Tenant shall furnish to Landlord a full set of
as-built plans and specifications for the Improvements. Notwithstanding
anything herein contained to the contrary, if any Improvements (as approved by
Landlord) require the alteration, removal or replacement of any part of the
Premises, such alteration, removal or replacement shall be undertaken by
Landlord at the sole cost and expense of Tenant or its Subtenants.
C. Title to the Improvements, and any modifications, additions,
restorations, repairs and replacements thereto placed or constructed by or for
Tenant or any Subtenant upon the Premises, shall be in Tenant or its successors
and assigns until the expiration of the Lease Term; provided, however, that (i)
the terms and provisions of this Lease shall apply to the Improvements and (ii)
the Improvements (other than furnishings, machinery, equipment, signage, trade
fixtures and other movable personal property installed by or for Tenant or any
Subtenant from time to time) shall be surrendered to and become the absolute
property of Landlord upon the expiration or earlier termination of the Lease
Term without any compensation owing to Tenant, any Subtenant or any other person
or entity therefor.
D. It is expressly acknowledged and understood that Xxxxxxxx does not
consent, and has not by the execution and delivery of this Lease consented, to
the imposition by any party whomsoever of any lien upon Xxxxxxxx's interest in
the Premises. Tenant covenants and agrees that all Improvements at any time
constructed upon the Premises will be completed free and clear of all liens and
claims of contractors, subcontractors, mechanics, laborers, materialmen and
other claimants unless Xxxxxx is contesting the imposition of such lien or claim
in good faith and has furnished Landlord with indemnity reasonably satisfactory
to Landlord against any loss by reason of such contest. Xxxxxx further agrees
to, and does hereby, protect, indemnify, defend and hold harmless Landlord and
its partners and their respective officers, directors, members, shareholders,
employees and agents from and against all bills, claims, liens and rights to
liens for
15
labor and materials, architects, contractors and subcontractors claims, and
fees, claims and expenses incident to the construction and completion of any
Improvements.
E. Landlord has no construction obligations under this Lease other
than that which is expressly set forth in Section 3.1 hereof.
ARTICLE XI
LANDLORD'S RIGHT OF ACCESS
11.1 Landlord shall have the right to enter upon the Premises or any
part thereof at any time for the purpose of inspecting or making repairs to the
Premises, or, subject to the provisions of this Lease, making repairs,
alterations or additions to adjacent premises, or showing the Premises to
prospective purchasers, lessees or lenders.
11.2 Use of the roof above the Premises is reserved to Landlord and
same is not a part of the Premises.
ARTICLE XII
UTILITIES
12.1 Landlord agrees to cause to be provided connections for the
supply of water, gas, electrical power, CATV, telephone service and sewerage
service at the boundary of the Premises (at locations reasonably determined by
Landlord).
12.2 Tenant, at its sole cost and expense, shall promptly pay all
charges for electricity, water, gas, telephone service, CATV, sewerage service
and other utilities furnished to the Premises or any part thereof. Landlord
may, if it so elects, furnish one or more utility services to Tenant and, in
such event, Tenant shall purchase such services as are tendered by Landlord and
shall pay, on demand, as additional Rent, the rates established therefor by
Landlord, which rates shall not exceed the rates which would be charged for the
same services if furnished directly by local public utility companies. Landlord
may at any time discontinue furnishing any such service without obligation to
Tenant other than to provide connections at the boundary of the Premises for the
public utility, if any, furnishing such service. If Landlord elects to provide
any utility service to Tenant, Landlord shall use commercially reasonable
efforts to minimize and promptly cure all interruptions of such utility service
reasonably within Landlord's control (except for interruptions due to Tenant's
default under this Lease). Notwithstanding anything to the contrary contained
in this Lease, if Landlord shall fail to take such steps as are reasonably
within Landlord's control to cure an interruption of utility services provided
by Landlord within twenty-four (24) hours after such interruption occurs, Tenant
may (but shall not be obligated to) take such steps as are necessary to cure
such interruption. Landlord shall not, as long as Tenant is not in default
hereunder, intentionally interrupt any utility service to the Premises, unless
such interruption is necessitated by an emergency or the need to make repairs.
12.3 Landlord shall not be liable for any interruption whatsoever in
utility services not furnished by Landlord, nor for interruption in utility
services furnished by Landlord which are due to (i) fire, accident, strike, acts
of God or other causes beyond the control of Landlord or (ii) alterations,
repairs or improvements being made to the Premises.
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ARTICLE XIII
INSURANCE COVERAGES
13.1 Landlord shall procure and maintain throughout the Lease Term a
policy or policies of insurance, at its sole cost and expense (but subject to
Article VI above), insuring the Premises under standard fire and extended
coverage insurance and liability insurance (with deductibles and whatever
endorsements or special coverages Landlord, in its sole discretion, may consider
appropriate), to the extent necessary to comply with Landlord's obligations
pursuant to other provisions of this Lease.
13.2 Tenant, at its sole cost and expense, shall procure and maintain
throughout the Lease Term a policy or policies of insurance, at its sole cost
and expense, insuring all fixtures and contents, and all Improvements and other
improvements constructed by or for Tenant or any Subtenant (including, without
limitation, the Improvements), for at least 80% of the replacement cost under
standard fire and extended coverage insurance and, with regard to liability
insurance, insuring both Landlord and Tenant against all claims, demands and/or
actions arising out of or in connection with the use, occupancy or operation of
the Premises by Tenant, any Subtenant or any other person or entity, or the
condition of the Premises. Tenant's liability policy or policies shall be
written by insurance companies satisfactory to Landlord. Tenant shall obtain a
written obligation on the part of each insurance company to notify Landlord at
least thirty days prior to cancellation or alteration of insurance. Such
policies or duly executed certificates of insurance shall be promptly delivered
to Landlord, and renewals thereof as required shall be delivered to Landlord, at
least thirty days prior to the expiration of the respective policy terms. If
Tenant should fail to comply with the foregoing requirement relating to
insurance, Landlord may obtain such insurance without notice, demand or
opportunity to cure, and Tenant shall pay to Landlord, on demand, as additional
Rent hereunder, the premium cost thereof, together with interest at the maximum
contractual rate (but in no event to exceed 1 1/2% per month), from the date of
payment by Landlord until repaid by Tenant. Landlord shall be named as loss
payee with respect to the standard fire and extended coverage insurance covering
the leasehold improvements owned by Landlord.
13.3 Tenant shall obtain and maintain, and cause each of its
Subtenants to obtain and maintain, at all times during the Lease Term insurance
coverage as required hereunder and in Section 13.2 above and as may be required
by law (including, without limitation, broad form comprehensive general
liability coverage, products liability, broad form contractual liability
coverage, liquor liability, auto liability, and business interruption, workers
compensation and employees' liability insurance) from reputable insurance
companies with an A.M. Best Rating of "A" and an A.M. Best Class Rating of XIV
(or comparable ratings from a reputable insurance rating service in the event
A.M. Best ratings are discontinued or materially altered), authorized to do
business in the jurisdiction in which the Premises are located, and covering the
activities of Tenant and its Subtenants. The insurance shall be in form
reasonably satisfactory to Landlord, in amounts at least equal to the following:
(a) comprehensive commercial liability insurance, with a combination
of primary and excess limits of not less than Two Million Dollars
($2,000,000.00), with minimum limits of One Million Dollars ($1,000,000.00) per
occurrence, bodily injury and property damage combined;
(b) auto liability insurance, including coverage of owned, non-owned
and hired vehicles, with a combination of primary and excess limits of not less
than Five Hundred Thousand Dollars ($500,000.00) for bodily injury for each
person, One Million Dollars ($1,000,000.00) for bodily injury for each
occurrence and One Million Dollars ($1,000,000.00) for each occurrence of
property damage;
(c) employer's liability insurance with a limit of not less than Five
Hundred Thousand Dollars ($500,000.00);
(d) workers compensation insurance in such amount as may be required
by applicable statute or rule;
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(e) hazard insurance with sufficient coverage to cover the replacement
cost of the Premises, including all Improvements, with a "value guard"
endorsement, if available;
(f) business interruption insurance with a minimum of Two Hundred
Thousand Dollars ($200,000.00) payable in three (3) equal monthly installments;
(g) hazard insurance with sufficient coverage to cover the replacement
costs of the contents of the Premises, including furniture, fixtures and
equipment; and
(h) if beer, wine, liquor or other alcoholic beverages are served from
the Premises or any part thereof, liquor liability insurance with a minimum of
One Million Dollars ($1,000,000.00) per occurrence and One Million Dollars
($1,000,000.00) in the aggregate.
Tenant shall provide Landlord with proof of such insurance from time
to time as requested by Landlord, and such policies of insurance required herein
shall name Landlord and its partners, and their respective, its affiliates,
members, shareholders, directors, and officers, as additional insureds. The
policies shall provide that the insurers will give thirty (30) days prior
written notice to Landlord before any material alteration to the terms of the
policies or the expiration or termination of such policies of insurance. In the
event Tenant fails to obtain or maintain, or cause its Subtenants to obtain and
maintain, the insurance described herein, Landlord shall have the right, but not
the obligation, to procure such insurance, and in such event, Tenant shall
reimburse Landlord, as additional Rent, for the costs of such insurance,
together with interest thereon at the maximum contractual rate allowed by
applicable law (but in no event to exceed 1 1/2% per month) from the date
advanced by Landlord until repaid. All public liability and property damage
insurance policies shall contain a provision that Tenant's insurance coverage
shall be primary to any coverage Landlord maintains. Prior to the Commencement
Date, and thereafter at least sixty (60) days prior to the expiration of any
policy, Tenant shall deliver to Landlord certificates of insurance, and if
requested, copies of all applicable policies which evidence the coverages
required by this Lease.
ARTICLE XIV
WAIVER OF LIABILITY; MUTUAL WAIVER OF SUBROGATION
14.1 Landlord and its partners and their respective officers,
directors, shareholders, members, employees and agents shall not be liable to
Tenant or any Subtenant, nor to Tenant's or any Subtenant's employees, agents or
visitors, nor to any other person or entity whomsoever, for any injury or death
to person or damage to property occurring in or about the Premises, whether
caused by the Premises coming out of repair, by any defect or failure of any
structural element of the Premises or of any equipment, pipes or wiring, broken
glass, backing up of drains, or gas, water, steam, electricity or oil leaking,
escaping or flowing into the Premises (except where due to Landlord's willful
failure to make repairs required to be made hereunder, after the expiration of a
reasonable time after written notice to Landlord of the need for such repairs).
If any repairs required to be made by Landlord hereunder are not made within
thirty (30) days after written notice delivered to Landlord by Tenant, and the
failure to make such repairs would result in the endangerment of human life or
the risk of physical injury to Tenant or any of its Subtenants, or their
respective agents, employees or invitees, then Tenant may, at its option, make
such repairs, provided Landlord shall not be liable or responsible for any loss
or damage which may result to the property or businesses of Tenant or any
Subtenant by reason of such repairs. Landlord shall pay to Tenant, upon demand,
the cost of such repairs plus interest at the maximum contractual rate which
could legally be charged in the event of a loan of such payment to Landlord (but
in no event to exceed 1 1/2% per month), such interest to accrue continuously
from the date of payment by Tenant until repayment by Landlord. Landlord shall
not be held responsible in any way on account of any construction, repair or
reconstruction (including widening) of any private or public roadways, walkways
or utility lines.
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14.2 Landlord and its partners and their respective officers,
directors, shareholders, members, employees and agents shall not be liable to
Tenant or any Subtenant or their respective employees, agents, or visitors, or
to any other person or entity whomsoever, for any injury or death to person or
damage to property on or about the Premises, and Xxxxxx hereby agrees to, and
does hereby, indemnify Landlord and its partners and their respective officers,
directors, shareholders, members, employees and agents and hold such parties
harmless from any loss, expense or claims (including attorneys' fees and
litigation expenses) arising out of such damage or injury.
14.3 Landlord and Tenant each hereby release the other from any and
all liability or responsibility to the other, or to any other party claiming by,
through or under them by way of subrogation or otherwise, for any loss or damage
to property caused by a casualty which is insurable under standard fire and
extended coverage insurance; provided, however, that this mutual waiver shall be
applicable only with respect to a loss or damage occurring during the time when
standard fire and extended coverage insurance policies contain a clause or
endorsement to the effect that such releases shall not adversely affect or
impair the policy or the right of the insured party to receive proceeds under
the policy; provided, further, that this release shall not be applicable to the
portion of any damage which is not reimbursed by the damaged party's insurer
because of the "deductible" in the damaged party's insurance coverage. The
release specified in this Section 14.3 is cumulative with any releases or
exculpations which may be contained in other provisions of this Lease.
ARTICLE XV
DAMAGE BY CASUALTY
15.1 Tenant shall give immediate written notice to the Landlord of
any damage caused to the Premises by fire or other casualty.
15.2 In the event that the Premises shall be damaged or destroyed by
fire or other casualty insured under standard fire and extended coverage
insurance and Landlord does not elect, or is not allowed under the terms of this
Lease to elect, to terminate this Lease as hereinafter provided, Landlord shall
proceed with reasonable diligence, at its sole cost and expense, to rebuild and
repair the Premises, but in no event shall Landlord be required to expend funds
for such rebuilding or repair in excess of the net insurance proceeds actually
received by Landlord as a result of such casualty. In the event (a) the
building(s) in which the Premises are located shall be destroyed or
substantially damaged by a casualty not covered by Landlord's insurance, or (b)
either the Riverboat Casino (as defined in the Ground Lease) or the improvements
on the Pavilion/Hotel Parcel (as defined in the Ground Lease) shall be destroyed
or damaged, or (c) the holder of a mortgage, deed of trust or other lien on the
Premises at the time of the casualty elects, pursuant to such mortgage, deed of
trust or other lien, to require the use of all or part of Landlord's insurance
proceeds to satisfy all or part of the indebtedness secured by such mortgage,
deed of trust or other lien, then Landlord may elect either to terminate this
Lease or to proceed to rebuild and repair the Premises. Landlord shall give
written notice to Tenant of such election within sixty days after the occurrence
of such casualty and, if it elects to rebuild and repair, shall proceed to do so
with reasonable diligence, at its sole cost and expense.
15.3 Landlord's obligation to rebuild and repair under this Article
XV shall in any event be limited to restoring the Premises to substantially the
condition in which the same existed prior to such casualty, exclusive of any
alterations, additions, Improvements, fixtures and equipment installed by
Tenant. Xxxxxx agrees that promptly after completion of such work by Landlord,
Xxxxxx will proceed with reasonable diligence, at Xxxxxx's sole cost and
expense, to restore, repair and replace all alterations, additions,
Improvements, fixtures, signs and equipment installed by or on behalf of Tenant
or any Subtenant.
15.4 Tenant agrees that during any period of reconstruction or repair
of the Premises, it will continue the operation of its business, and cause the
continuance of operation of each Subtenant's business, within the
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Premises to the extent practicable. In the event Landlord elects to effect
repairs, or must effect repairs, to the Premises upon the occurrence of a
casualty and Landlord does not or cannot terminate this Lease, during the period
from the occurrence of the casualty until Landlord's repairs are substantially
completed, the Minimum Guaranteed Rental shall be reduced in proportion to the
area under reconstruction or repair; however, there shall be no abatement of the
Percentage Rental and other charges provided for herein.
ARTICLE XVI
EMINENT DOMAIN
16.1 If more than thirty percent (30%) of the floor area of the
Premises should be taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain or by
private purchase in lieu thereof, this Lease shall terminate effective on the
date physical possession is taken by the condemning authority.
16.2 If less than thirty percent (30%) of the floor area of the
Premises should be taken as aforesaid, this Lease shall not terminate, however,
the Minimum Guaranteed Rental (but not Percentage Rental) payable hereunder
during the expired portion of this Lease shall be reduced in proportion to the
area taken, effective on the date physical possession is taken by the condemning
authority. Following such partial taking, Landlord, at its expense, shall make
all necessary repairs or alterations to the remaining Premises required to make
the remaining portions of the Premises an architectural whole.
16.3 [INTENTIONALLY DELETED]
16.4 All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Premises shall be the property of Landlord,
and Tenant hereby assigns its interest, if any, in any such award to Landlord.
Landlord, however, shall have no interest in any award made to Tenant for
Xxxxxx's moving and relocation expenses or for the loss of Xxxxxx's fixtures and
other corporeal movable property that Tenant would be permitted to remove at the
end of this Lease (if a separate award for such items is made to Tenant)
provided such separate award does not reduce the amount of the award that would
otherwise be awarded to Landlord.
ARTICLE XVII
ASSIGNMENT AND SUBLETTING
17.1 Tenant shall not assign or in any manner transfer this Lease or
any estate or interest therein, or sublet the Premises or any part thereof, or
grant any license, concession or other right of occupancy with respect to any
portion of the Premises, without first making written request to Landlord (which
shall include a copy of the proposed assignment, transfer or sublease and any
other information Landlord may request) and obtaining the prior written consent
of Landlord. The use to which the Premises or any part thereof shall be put is
restricted to the Permitted Use defined in Section 1.1(n). Xxxxxxxx agrees that
it will not withhold consent in an unreasonable and arbitrary manner (as further
explained in Section 26.4 of this Lease). However, in determining whether or
not to grant its consent, Landlord shall be entitled to take into consideration
factors such as Xxxxxxxx's desired tenant mix complimentary to the proposed
riverboat casino operation at the Shoreside Complex (as defined in the Ground
Lease), the identity, reputation and net worth of the proposed transferee or
Subtenant, and the then current market conditions (including market rentals).
Landlord shall be entitled to charge Tenant a reasonable fee for processing
Tenant's request, including, but not limited to, Xxxxxxxx's attorneys' fees.
Any attempted assignment, transfer or sublease in violation of the terms of this
Section 17.1 shall be voidable at Landlord's option, which option may be
exercised at any time by giving Tenant written notice. Such option shall not be
waived by Landlord by the acceptance of Rent or any other act or omission of
Landlord. Such option may only be waived
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by Landlord in writing. Consent by Landlord to one or more assignments or
sublettings shall not operate as a waiver of Landlord's rights as to any
subsequent assignment or subletting. Notwithstanding anything above to the
contrary, the written consent of Landlord shall not be required for any sublease
or assignment to any entity in which Xxxxxx X. Xxxxxxxxx is a principal,
partner, member and/or shareholder provided the Premises are operated as
provided in Section 1.1(n). No sublease or assignment, whether or not approved
by Landlord, shall release Tenant from any of its duties or obligations,
including, without limitation, the payment of Minimum Guaranteed Rental and
Percentage Rental, during the Lease Term. By accepting any assignment of this
Lease, or any interest therein or any part hereof, or any sublease hereunder,
the assignee or Subtenant shall, and does by the acceptance of such assignment
or sublease, agree to keep and perform each and every covenant and obligation
herein required to be kept and performed by Xxxxxx, and Tenant, and each
succeeding assignee or Subtenant, shall be and become fully obligated, jointly,
severally and in solido, to keep and perform all such covenants and obligations.
17.2 If Tenant is a corporation, partnership or other entity and if
at any time during the Lease Term the person or persons who, directly or
indirectly, own a majority of the outstanding voting rights or the outstanding
ownership interests in Tenant, or otherwise control Tenant at the time of the
execution of this Lease, cease to own a majority of such voting rights or
ownership interests (except as a result of transfers by devise or descent) or to
control Tenant, the loss of a majority of such voting rights or ownership
interests or of such control shall be deemed as assignment of this Lease by
Xxxxxx and, therefore, subject in all respects to the provisions of Section 17.1
above. The previous sentence shall not apply, however, if at the time of the
execution of this Lease, Tenant is a corporation and the outstanding voting
shares of capital stock of Tenant are listed on a recognized national security
exchange or over-the-counter market.
17.3 Any assignee of an interest in and to this Lease and any
Subtenant shall be deemed, by acceptance of such assignment or sublease, or by
taking actual or constructive possession of the Premises, to have assumed all of
the obligations set forth in or arising under this Lease. Such assumption shall
be effective as of the earlier of (i) the date of such assignment or sublease or
(ii) the date on which the assignee or Subtenant obtains possession of the
Premises.
17.4 Notwithstanding any assignment or subletting, whether or not
permitted hereunder, Tenant shall at all times remain fully responsible and
liable for the payment of the Rent herein specified and for compliance with all
other obligations under this Lease (even if future assignments and sublettings
occur subsequent to such assignment or subletting by Xxxxxx, and regardless of
whether or not Landlord's approval has been obtained for such future assignments
and sublettings).
17.5 Tenant shall not mortgage, pledge or otherwise encumber any
portion of the Premises or its subleasehold interest in the Premises; provided,
however, the foregoing prohibition shall not apply to any rents from any
Subtenants, Net Cash Flow, the Management Fee or the Special Allocation.
17.6 In the event of the transfer or assignment by Landlord of its
interest in this Lease, the Ground Lease or the building containing the Premises
to a person or entity expressly assuming Landlord's obligations under this
Lease, Landlord shall be released from any further obligations hereunder, and
Xxxxxx hereby agrees to look solely to such successor in interest of the
Landlord for performance of such obligations. Any security given by Xxxxxx to
secure performance of Xxxxxx's obligations hereunder may be assigned or
transferred by Landlord to such successor in interest whereupon Tenant agrees
that Landlord shall be discharged of any further obligation relating thereto.
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ARTICLE XVIII
SUBORDINATION; ATTORNMENT; ESTOPPELS
18.1 Tenant hereby agrees that this Lease shall be subject and
subordinate to any mortgage, deed of trust or other lien presently existing or
hereafter placed upon the Premises, and to any renewals and extensions thereof.
Tenant, however, also agrees that any mortgagee or other lienholder shall have
the right at any time to subordinate its mortgage, deed of trust or other lien
to this Lease; provided, however, notwithstanding that this Lease may be (or may
be made to be) superior to a mortgage, deed of trust or other lien, the
mortgagee or other lienholder thereunder shall not be liable for prepaid Rent,
security deposits or claims accruing during Xxxxxxxx's ownership. The
provisions of a mortgage, deed of trust or other lien affecting the Premises
relative to the rights of the mortgagee or other lienholder thereunder with
respect to proceeds arising from an eminent domain proceeding or other taking
(including a voluntary conveyance by Xxxxxxxx) and provisions relative to
insurance proceeds paid by reason of damage to or destruction of the Premises
shall be prior and superior to any contrary provisions contained in this Lease
with respect to the payment or usage thereof regardless of whether such
mortgage, deed of trust or other lien is subordinate or senior in priority to
this Lease. The subordination of this Lease as herein contained is enforceable
and self-operative and no further instrument of subordination is required.
However, Tenant hereby irrevocably appoints Landlord as its attorney-in-fact and
mandatary for the purpose of executing, in the name and on behalf of Tenant,
such instruments as Landlord may deemed appropriate to subordinate this Lease to
any mortgage, deed of trust or other lien hereafter placed upon the Premises
should Tenant fail, upon demand, to execute a subordination agreement and such
further instruments subordinating this Lease as Landlord may request from time
to time, one or more times (in forms requested by Landlord). Upon Xxxxxx's
written request and notice to Landlord, Landlord shall use reasonable efforts to
obtain from any such mortgagee a written non-disturbance agreement which
recognizes the rights of Tenant hereunder and provides that this Lease shall
remain in full force and effect during the Lease Term so long as Tenant shall
continue to recognize and perform all of the covenants and conditions of this
Lease. Xxxxxx agrees to attorn to any successor in interest of Xxxxxxxx's
interest in this Lease, whether by foreclosure, dation en paiment, voluntary
transfer or otherwise.
18.2 At any time when the holder of an outstanding mortgage, deed of
trust or other lien covering Landlord's interest in the Premises has given
Tenant written notice of its interest in this Lease, Xxxxxx agrees that it
cannot and will not exercise any remedies for default by Landlord hereunder
unless and until the holder of the indebtedness secured by such mortgage, deed
of trust or other lien shall have received written notice of such event of
default and a reasonable time (not less than 30 days) shall thereafter have
elapsed without the event of default having been cured. Any such holder may
perform Landlord's obligations under this Lease.
18.3 Tenant agrees that it will, from time to time, upon the request
of Landlord, execute and deliver to Landlord a written statement addressed to
Landlord (or to a party designated by Landlord), which statement shall identify
Tenant and this Lease, shall certify 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 so modified), shall confirm that Landlord is not in default
as to any obligations of Landlord under this Lease (or if Landlord is in
default, specifying any default), shall confirm Tenant's agreements contained
above in this Article XVIII, and shall contain such other information or
confirmations as Landlord or its lenders or prospective transferees may
reasonably require. Tenant hereby irrevocably appoints and authorizes Landlord
as the attorney-in-fact and mandatary of Tenant for the purpose of executing and
delivering any such written statement on Xxxxxx's behalf if Xxxxxx fails to do
so within seven (7) days after the delivery of a written request therefor from
Landlord to Tenant.
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ARTICLE XIX
DIRECTION OF TENANT'S ENERGIES
19.1 Tenant acknowledges that Xxxxxx's monetary contribution to
Landlord (in the form of Rent) and Xxxxxx's general contribution to commerce
within the Premises (also important in Landlord's determination to execute this
Lease with Tenant) will be substantially reduced if, during the Lease Term,
Tenant fails to fully sublease the Premises to retail Subtenants. Accordingly,
Xxxxxx agrees that if between the period commencing on the 180th day after the
opening of the casino within the Shoreside Complex (as defined in the Ground
Lease) and ending on the 365th day after said opening, Tenant has failed to
cause at least fifty (50%) percent of the floor area of the Premises to be
subleased to retail Subtenants (approved by Landlord in accordance with Sections
1.1(o) and 17.0), Tenant also shall be in default under this Lease. Xxxxxx also
agrees that if at any time after the 365th day after the opening of the casino
within the Shoreside Complex, Tenant has failed to cause at least seventy-five
(75%) percent of the floor area of the Premises to be subleased to retail
Subtenants (approved by Landlord in accordance with Sections 1.1(o) and 17.0),
Tenant shall be in default under this Lease.
ARTICLE XX
DEFAULT BY TENANT AND REMEDIES
20.1 The following events shall be deemed to be events of default
(individually, an "Event of Default") by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of Rent or any other
obligation under this Lease involving the payment of money and such failure
shall continue for a period of ten (10) days after written notice thereof to
Tenant; provided, however, if during any calendar year during the Lease
Term, Landlord delivers to Tenant a single written notice of the failure to
pay an installment of Rent or any other obligation under this Lease
involving the payment of money, no further notice shall be required with
respect to any subsequent failure (i.e., the event of default will
automatically occur on the tenth day after the date upon which the Rent or
other obligation under this Lease involving the payment of money was due
without the requirement that notice of failure to pay, notice of intention
to declare an event of default or any other notice be given to Tenant).
(b) Tenant shall fail to comply with, or otherwise cure any failure to
comply with, any term, provision or covenant of this Lease, other than as
described in subsection (a) above or subsection (i) below, within fifteen
(15) days after written notice from Landlord to Tenant, or if Tenant shall
cure that particular failure but shall again fail to comply with the same
provision of this Lease within three months after Landlord's written notice.
Notwithstanding anything herein contained to the contrary, if any event of
default described in this Section 20.1(b) cannot with due diligence be cured
within the aforesaid fifteen (15) day period, Tenant shall not be in default
hereunder if, prior to the expiration of said fifteen (15) day period,
Tenant shall commence to eliminate the cause of such event of default, shall
proceed diligently and with reasonable dispatch to take all action required
to cure such event of default, and does cure such event of default within
sixty (60) days from its receipt of notice of default from Landlord.
(c) Tenant shall become insolvent, or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of creditors.
(d) Tenant shall file a petition under any section or chapter of the
federal Bankruptcy Code, as amended, or under any similar law or statute of
the United States or any State thereof, or Tenant shall be adjudged bankrupt
or insolvent in proceedings filed against Tenant.
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(e) A receiver, keeper or trustee shall be appointed for the Tenant or
for all or substantially all of the assets of Tenant or any guarantor of
Tenant's obligation under this Lease.
(f) Tenant shall abandon or vacate, or shall commence to abandon or
vacate, the Premises or any substantial portion of the Premises or shall
remove or attempt to remove, without the prior written consent of Landlord,
all or a substantial amount of goods, wares, equipment, fixtures, furniture
or other personal property.
(g) Tenant or any Subtenant shall do, or permit to be done, anything
which creates a lien upon the Premises or the leasehold interest of Tenant
or such Subtenant, or Landlord, in and to the Premises (unless Tenant or
such Subtenant, within ten (10) days after notice (actual or constructive)
of such lien, causes the lien to be satisfied and released or bonds around
the lien in accordance with state law and to Landlord's reasonable
satisfaction).
(h) Tenant, without Xxxxxxxx's prior written consent, assigns or
transfers, or attempts to assign or transfer, this Lease or any estate or
interest herein, or subleases, or attempts to sublease, the Premises or any
part thereof, or grants or attempts to grant any license, concession or
other right of occupancy with respect to any portion of the Premises.
(i) Tenant shall fail to cause at least fifty (50%) percent of the
floor area of the Premises to be subleased to retail Subtenants (approved by
Landlord) at any time during the period commencing 180 days after the
opening of the casino within the Shoreside Complex (as defined in the Ground
Lease) and ending 365 days after said opening, as more fully set forth in
Section 19.1.
(j) Tenant shall fail to cause at least seventy-five (75%) percent of
the floor area of the Premises to be subleased to retail Subtenants
(approved by Landlord) at any time after the date which is 365 days after
the opening of the casino within the Shoreside Complex (as defined in the
Ground Lease), as more fully set forth in Section 19.1.
20.2 Upon the occurrence of any Event of Default hereunder, Landlord
shall have the option to pursue any one or more of the following remedies
immediately and without any further demand, notice, presentment, notice of
intention to exercise remedies, notice to vacate or opportunity to cure
whatsoever, all of which are hereby expressly waived by Xxxxxx:
(a) Tenant shall be obligated to reimburse Landlord for the damages
suffered by Landlord as a result of the Event of Default, together with
interest on such amount at the maximum contractual rate which could legally
be charged in the event of a loan of such amount to Tenant (but in no event
to exceed 1 1/2% per month), and Landlord may pursue a monetary recovery
from Tenant. In this regard, and without limiting the generality of the
immediately preceding sentence, it is agreed that if Tenant fails to open,
or fails to cause Subtenants to open, for business as required in this Lease
or, having opened for business, either Tenant or any Subtenant subsequently
abandons or vacates the Premises or otherwise ceases to conduct business in
the Premises as required in this Lease, then Landlord, at its option, may
seek monetary recovery for the loss of Xxxxxx's anticipated contribution to
commerce within the Premises; moreover, Landlord and Tenant further agree
that inasmuch as the exact amount of damages would be difficult to
determine, liquidated damages will be due monthly in an amount equal to the
monthly Minimum Guaranteed Rental payable for the month if Tenant or a
Subtenant fails to open for business as required in this Lease or, having
opened for business, subsequently abandons or vacates the Premises or
otherwise ceases to conduct business in the Premises as required by this
Lease (including, but not limited to, failing to comply with the
requirements of Section 8.1 of this Lease).
(b) Landlord may take any one or more of the actions permissible at
law to insure performance by Xxxxxx of Tenant's covenants and obligations
under this Lease. In this regard, and without
24
limiting the generality of the immediately preceding sentence, it is agreed
if Tenant or a Subtenant fails to open for business as required in this
Lease or, having opened for business, abandons or vacates the Premises,
Landlord may enter upon and take possession of the Premises and continue to
demand from Tenant the Rent and other charges provided in this Lease,
without any obligation to relet; however, if Landlord does, at its sole
discretion, elect to relet the Premises, such action by Landlord shall not
be deemed as an acceptance of Xxxxxx's surrender of the Premises unless
Landlord expressly notifies Tenant of such acceptance in writing pursuant to
this subsection (b), Tenant hereby acknowledging that Landlord shall
otherwise be reletting as Tenant's agent and Tenant furthermore hereby
agreeing to pay to Landlord, on demand, as liquidated damages, any
deficiency that may arise between the Rent and other charges provided in
this Lease and that actually collected by Landlord as a result of a
reletting of the Premise. It is further agreed in this regard that upon the
occurrence of any Event of Default described in subsection (b) of Section
20.1 of this Lease, Landlord shall have the right to enter upon the
Premises, without being liable for prosecution or any claim for damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant agrees to reimburse Landlord, on demand, for any expenses
which Landlord may incur in thus effecting compliance with Xxxxxx's
obligations under this Lease, as additional Rent hereunder, and Xxxxxx
further agrees that Landlord shall not be liable for, and Tenant shall, and
does hereby, indemnify Landlord and its partners and their respective
officers, directors, shareholders, members, employees and agents, from and
against any damages (including attorneys' fees and litigation expenses)
resulting from such action. Finally, it is agreed that upon the occurrence
of any Event of Default described in subsection (g) of Section 20.1 of this
Lease, Landlord may pay or bond around such lien, whether or not contested
by Xxxxxx, and in such event, Xxxxxx agrees to reimburse Landlord, on
demand, as additional Rent hereunder, for all costs and expenses incurred in
connection with any such action, regardless of whether the lien was valid,
with Tenant further agreeing that Landlord shall in no event be liable for
any damages or claims resulting from such action.
(c) Landlord may terminate this Lease or Xxxxxx's rights of possession
by written notice to Tenant, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which Landlord may have for
possession or arrearages in Rent (including any late charge or interest
which may have accrued pursuant to Section 4.10 of this Lease), enter upon
and take possession of the Premises and expel or remove Xxxxxx and any other
person who may be occupying the Premises or any part thereof, including any
Subtenant, without being liable for prosecution or any claim for damages
therefor. Tenant hereby waives any required notice to vacate and all
statutory requirements of prior written notice for filing suits for eviction
or damage for nonpayment of Rent. In addition, Xxxxxx agrees to pay to
Landlord, on demand, the amount of all losses and damages which Landlord may
suffer by reason of any termination effected pursuant to this subsection
(c), said losses and damages to be determined by either of the following
alternative measures of damages:
(i) Until Landlord is able, through reasonable efforts, the nature of
which efforts shall be in the sole discretion of Landlord, to relet the
Premises, Tenant shall pay to Landlord on or before the first day of
each calendar month Rent and other charges provided in this Lease.
After the Premises have been relet by Landlord, Tenant shall pay to
Landlord on the 20th day of each calendar month the difference between
the monthly Rent and other charges provided in this Lease for such
calendar month and that actually collected by Landlord for such month.
If it is necessary for Landlord to bring suit in order to collect any
deficiency, Landlord shall have the right to allow such deficiencies to
accumulate and to bring an action on several or all of the accrued
deficiencies at one time. Any such suit shall not prejudice in any way
the right of Landlord to bring a similar action for any subsequent
deficiencies. Any amount collected by Xxxxxxxx from subsequent tenants
for any calendar month in excess of the monthly Rent and other charges
provided in this Lease shall be credited to Tenant in reduction of
Tenant's liability for subsequent calendar months for which the amount
collected by Landlord will be less than the monthly Rent and other
charges provided in this Lease, but Tenant shall have no right to such
excess other than the above described credit.
25
(ii) When Landlord desires, Landlord may demand a final statement.
Upon demand for a final statement, Landlord shall have the right to
receive from Tenant, and Tenant hereby agrees to pay to Landlord, in
addition to any Rent or other amounts then due or payable, the
difference between the total of all Rent and other charges provided in
this Lease for the remainder of the Lease Term and the reasonable
rental value of the Premises for such period, such difference to be
discounted to present value at a rate equal to the rate of interest
which is allowed by law in the State of Louisiana when the parties to a
contract have not agreed on any particular rate of interest (or, in the
absence of such law, at the rate of six percent (6%) per annum).
If Landlord elects to exercise the remedy prescribed in subsection
20.2(b) above, this election shall in no way prejudice Landlord's right
at any time thereafter to cancel said election in favor of the remedy
prescribed in subsection 20.2(c) above, provided that at the time of
such cancellation Tenant is still in default. Similarly, if Landlord
elects to compute damages in the manner prescribed by Subsection
20.2(c)(i) above, this election shall in no way prejudice Landlord's
right at any time thereafter to demand a final settlement in accordance
with Subsection 20.2(c)(ii) above. Pursuit of any of the above
remedies shall not preclude pursuit of any other remedies prescribed in
other sections of this Lease or any other remedies provided by law or
in equity. Landlord may exercise such other remedies hereunder or as
provided by law or equity upon the occurrence of an Event of Default
immediately and without any further demand, notice, presentment, notice
to vacate, notice of intention to exercise remedies or opportunity to
cure whatsoever, all of which are hereby expressly waived by Xxxxxx.
Landlord shall not be required to provide Tenant with any notices of
default or intention to declare an event of default, or with any
opportunity to cure breaches or events of default, except as may be
expressly provided in Section 20.1. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such event
of default.
20.3 It is expressly agreed that in determining "the monthly Rent and
other charges provided in this Lease," as that term is used throughout
subsections 20.2(c)(i) and 20.2(c)(ii) above, there shall be added to the
Minimum Guaranteed Rental (as specified in Sections 1.1(j) and 4.1 of this
Lease) the payments for taxes, Real Estate Charge and insurance as specified in
Article VI of this Lease.
20.4 It is further agreed that, in addition to payments required
pursuant to subsections 20.2(b) and 20.2(c) above, Tenant shall compensate
Landlord, as additional Rent hereunder, for all expenses incurred by Landlord in
regaining possession of the Premises (including, among other expenses,
attorneys' fees, litigation expenses and any increase in insurance premiums
caused by the vacancy of the Premises), all expenses incurred by Landlord in
reletting (including, among other expenses, repairs, remodeling, replacements,
advertisements and brokerage fees), all concessions granted to a new tenant or
new tenants upon reletting (including, among other concessions, renewal
options), all losses incurred by Landlord as a direct result of Tenant's default
(including, among other losses, any adverse reaction by Landlord's mortgagee or
by other tenants or potential tenants of the Premises) and a reasonable
allowance for Landlord's administrative efforts, salaries and overhead
attributable, directly or indirectly, to Xxxxxx's default and Xxxxxxxx's pursuit
of the rights and remedies provided herein and under applicable law.
20.5 Landlord may restrain or enjoin any breach or threatened breach
of any covenant, duty or obligation of Tenant herein contained. The remedies of
Landlord hereunder shall be deemed cumulative and not exclusive of each other.
20.6 [INTENTIONALLY DELETED]
20.7 [INTENTIONALLY DELETED.]
26
20.8 If any payment of Rent or other sums due to Landlord hereunder
is made via check, the payment shall be effective when delivered to Landlord if
and only if the check is paid on presentment to the drawer thereof. If the
check is dishonored for any reason whatsoever, including, without limitation, as
a result of a stop payment order, insufficient funds or mistake on the part of
Tenant, but excluding a dishonoring due to error on part of the bank or
financial institution, then it shall be conclusively deemed, without the
necessity of notice to Tenant, that the attempted payment never became
effective. Landlord shall have no obligation to present any check more than
once. Without limiting the foregoing, if a check is dishonored as a result of a
stop payment order or insufficient funds or any other act, failure or omission
of Tenant, then (a) the failure to pay the Rent or other sums intended to be
evidenced by such check shall constitute an Event of Default by Tenant under
this Lease, without the requirement of any notice to or demand upon Tenant, upon
the later to occur of (i) the expiration of ten (10) days after the date such
Rent or other sum was due, and (ii) the dishonor of the check; and (b) in
addition to any other remedies available under this Lease, at law or in equity,
Landlord may require, by giving Tenant written notice, that all further Rent and
other sums payable by Tenant during the remainder of the Lease Term be paid via
cash, money order, certified check, cashier's check or other current funds
approved by Landlord.
20.9 In the event that any one or more provisions of this Article XX
authorizes Landlord to enter the Premises, Landlord, to the extent it is
permitted to do so under applicable law, is entitled and is hereby authorized,
without any notice to Tenant, to enter upon the Premises by use of a duplicate
key, a master key, a locksmith's entry procedures or any other means not
involving personal confrontation. If an Event of Default exists, to the extent
permitted by applicable law, Landlord may, without judicial process, change the
locks on the Premises or otherwise limit access to the Premises to the exclusion
of Tenant and any other persons, and remove any and all persons and property
from the Premises, provided such actions are done in a peaceful manner.
Landlord shall not be obligated to place any written notice on the Premises
explaining Landlord's action, or to provide Tenant with a new key to the
Premises or notice of the name and address or telephone number of an individual
from which a new key may be obtained, or to otherwise provide Tenant with access
to or possession of the Premises, if and so long as an Event of Default
continues to exist or this Lease or Tenant's rights of possession hereunder have
been terminated. Notwithstanding the provisions of this Section 20.9, in the
event Tenant is in default under this Lease but Landlord has entered into
nondisturbance agreements with one or more Subtenants, Landlord will comply with
the terms of such nondisturbance agreements with respect to such Subtenant(s),
including, if provided for in such nondisturbance agreement(s), Landlord's
nondisturbance of such Subtenant(s)' possession of their space leased from
Tenant, so long as such Subtenant(s) are, and remain, in compliance with the
terms of their sublease with Tenant, this Lease and their respective
nondisturbance agreements with Landlord.
20.10 In the event of any Event of Default described in subsection
(d) of Section 20.1 of this Lease, any assumption and assignment must conform
with the requirements of the federal Bankruptcy Code which provides, in part,
that the Landlord must be provided with adequate assurances (i) of the source of
Rent and other consideration due under this Lease; (ii) that the financial
condition and operating performance of any proposed assignee and its guarantors,
if any, shall be similar to the financial condition and operating performance of
Tenant as of the date of execution of this Lease; (iii) that any Percentage
Rentals due under this Lease will not decline substantially; (iv) that any
assumption or assignment is subject to all of the provisions of this Lease
(including, but not limited to, restrictions as to use) and will not breach any
such provision contained in any other lease, financing agreement or other
agreement relating to the Shoreside Complex (as defined in the Ground Lease);
and (v) that any assumption or assignment will not disrupt any tenant mix or
balance in the Shoreside Complex (as defined in the Ground Lease).
(a) In order to provide Landlord with the assurances contemplated by
the Bankruptcy Code, Tenant must fulfill the following obligations, in
addition to any other reasonable obligations that Landlord may require,
before any assumption of this Lease is effective: (i) all Events of Default
under subsection (a) of Section 20.1 of this Lease must be cured within ten
(10) days after the date of assumption; (ii) all other Events of Default
under Section 20.1 of this Lease other than under subsection (d) of Section
20.1 must be cured within thirty (30) days after the date of assumption;
(iii) all actual
27
monetary losses incurred by Landlord (including, but not limited to,
reasonable attorneys' fees and litigation expenses) must be paid to Landlord
within ten (10) days after the date of assumption; and (iv) Landlord must
receive, within ten (10) days after the date of assumption, a security
deposit in the amount of six (6) months Minimum Guaranteed Rental (using the
Minimum Guaranteed Rental in effect for the first full month immediately
following the assumption) and an advance prepayment of Minimum Guaranteed
Rental in the amount of three (3) months Minimum Guaranteed Rental (using
the Minimum Guaranteed Rental in effect for the first full month immediately
following the assumption).
(b) In the event that this Lease is assumed in accordance with the
requirements of the Bankruptcy Code and this Lease, and is subsequently
assigned, then, in addition to any other reasonable requirements that
Landlord may impose and in order to provide Landlord with the assurances
contemplated by the Bankruptcy Code, Landlord shall be provided with (i) a
financial statement of the proposed assignee prepared in accordance with
generally accepted accounting principles consistently applied, though on a
cash basis, which reveals a net worth in an amount sufficient, in Landlord's
reasonable judgment, to assure the future performance by the proposed
assignee of Tenant's obligations under this Lease, or (ii) a written
guaranty by one or more guarantors with financial ability sufficient to
assure the future performance of Tenant's obligations under this Lease, such
guaranty to be in form and content satisfactory to Landlord and to cover the
performance of all of Tenant's obligations under this Lease.
ARTICLE XXI
LANDLORD'S CONTRACTUAL SECURITY INTEREST
21.1 IN ADDITION TO THE STATUTORY LESSOR'S LIEN, LANDLORD SHALL HAVE
AT ALL TIMES A VALID SECURITY INTEREST TO SECURE PAYMENT OF ALL RENT AND OTHER
SUMS OF MONEY BECOMING DUE HEREUNDER FROM TENANT, AND TO SECURE PAYMENT OF ANY
DAMAGES OR LOSS WHICH LANDLORD MAY SUFFER BY REASON OF THE BREACH BY TENANT OF
ANY COVENANT, AGREEMENT OR CONDITION CONTAINED HEREIN, UPON ALL GOODS, WARES,
EQUIPMENT, FIXTURES, FURNITURE, INVENTORY, IMPROVEMENTS AND OTHER PERSONAL
PROPERTY OF TENANT PRESENTLY, OR WHICH MAY HEREAFTER BE, SITUATED ON THE
PREMISES, AND ALL PROCEEDS THEREFROM, AND SUCH PROPERTY SHALL NOT BE REMOVED
WITHOUT THE CONSENT OF LANDLORD UNTIL ALL ARREARAGES IN RENT, AS WELL AS ANY AND
ALL OTHER SUMS OF MONEY THEN DUE TO LANDLORD OR TO BECOME DUE TO LANDLORD
HEREUNDER, SHALL FIRST HAVE BEEN PAID AND DISCHARGED IN FULL AND ALL THE
COVENANTS, AGREEMENTS AND CONDITIONS HEREOF HAVE BEEN FULLY COMPLIED WITH AND
PERFORMED BY TENANT. Upon the occurrence of an Event of Default by Tenant,
Landlord may, in addition to any other remedies provided herein or under
applicable law, to the extent permitted by applicable law, enter upon the
Premises and take possession of any and all goods, wares, equipment, fixtures,
furniture, improvements and other personal property of Tenant situated on the
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without appraisement, with or without having
such property at the sale, after giving Tenant reasonable notice of the time and
place of any public sale or of the time after which any private sale is to be
made, at which sale the Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending to
exclude any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner prescribed
in this Lease at least five days before the time of sale. Any sale made
pursuant to the provisions of this Section 21.1 shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held in the
Premises or where the property is located after the time, place and method of
sale and a general description of the types of property to be sold have been
advertised in a daily newspaper published in the parish in which the property is
located, for five consecutive days before the date of the sale. The proceeds
from any such disposition, less any and all expenses connected with the taking
of possession,
28
holding and selling of the property (including reasonable attorneys' fees and
legal expenses), shall be applied as a credit against the indebtedness secured
by the security interest granted in this Section. Any surplus shall be paid to
Tenant or as otherwise required by law. The Tenant shall pay any deficiencies to
Landlord upon demand. Upon request by Xxxxxxxx, Xxxxxx agrees to execute and
deliver to Landlord a financing statement in form sufficient to perfect the
security interest of Landlord in the aforementioned property and proceeds
thereof under the provisions of Chapter 9 of the Louisiana Commercial Laws,
La.R.S. 10:9-101 et seq., as well as the Uniform Commercial Code (or
corresponding state statute or statutes) of any other state the laws of which
Landlord may at anytime consider to be applicable. Xxxxxxxx is hereby
irrevocably vested with a power of attorney from Tenant to execute any and all
such financing statements on behalf of Xxxxxx.
21.2 Notwithstanding Section 21.1, Landlord agrees that it will
subordinate its security interest and xxxxxx'x xxxx to the security interest of
Xxxxxx's supplier or institutional financial source, provided that Landlord
approves the transaction as being reasonably necessary for Xxxxxx's operations
at the Premises, and further provided that the subordination must be limited to
specific transactions and specified items of the fixtures, equipment or
inventory involved in such transaction.
21.3 Landlord acknowledges and agrees that the security interest in
its favor as provided in this Article XXI does not extend to the personal
property of the Subtenants.
ARTICLE XXII
HOLDING OVER
22.1 In the event Tenant remains in possession of the Premises after
the expiration of the Lease Term without the execution of a new lease, it shall
be deemed to be occupying said Premises as a tenant from month to month at a
rental equal to the Rent (including any Percentage Rental) herein provided plus
fifty percent of such amount and otherwise subject to all the conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy.
ARTICLE XXIII
NOTICES
23.1 Whenever any notice is required or permitted hereunder, such
notice shall be in writing. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered when actually received by
the designated addressee or, if earlier and regardless of whether actually
received or not, two (2) days after being deposited in the United States mail,
postage prepaid, certified mail, return receipt requested, addressed to the
parties at the respective addresses set out in Section 1.1 above (or at
Landlord's option, to Tenant at the Premises), or at such other addresses as
they have theretofore specified by written notice.
23.2 If "Tenant" includes or is comprised of more than one person,
firm or corporation, the receipt of notice by one shall be deemed to be notice
to all and all such parties shall arrange among themselves for their joint
execution of a notice to Landlord specifying some individual at some specific
address for the receipt of notices and payment to Tenant. All parties included
within the terms "Landlord" and "Tenant," respectively, shall be bound by
notices and payments given in accordance with the provisions of this Article to
the same effect has if each had received such notice or payment. In addition,
Xxxxxx agrees that notices to Tenant may be given by Xxxxxxxx's attorney,
property manager or other agent.
29
ARTICLE XIV
COMMISSIONS
24.1 Each party represents and warrants to the other that it has had
no dealings with any broker or agent in connection with the negotiation or
execution of this Lease. Each party shall indemnify and hold the other harmless
from any costs, expenses, or liability for commissions or other compensation or
charges claimed by any person, broker or agent claiming through association with
it with respect to this Lease. Each party shall only be responsible for such
commissions or fees as it may agree to pay in a separate written agreement
executed by said party, if any.
ARTICLE XXV
REGULATIONS
25.1 Landlord and Tenant acknowledge that there are in effect
federal, state, parish and municipal laws, orders, rules, directives and
regulations (collectively referred to hereinafter as the "Regulations") and that
additional Regulations may hereafter be enacted or go into effect, relating to
or affecting the Premises, and concerning the impact on the environment of
construction, land use, maintenance and operation of structures, and the conduct
of business. Tenant will not cause, or permit to occur, any act or practice, by
negligence, omission, or otherwise, that would adversely affect the environment
or violate any of said laws, regulations or guidelines. Moreover, Tenant shall
have no claim against Landlord by reason of any changes Landlord, after written
notice to Xxxxxx, may make in the Premises pursuant to said Regulations or any
charges imposed upon Tenant, Xxxxxx's customers or other invites pursuant to
same.
25.2 If, by reason of any Regulations, the payment to, or collection
by, Landlord of any Rent or other charge (collectively referred to hereinafter
as "Lease Payments") payable by Tenant to Landlord pursuant to the provisions of
this Lease is in excess of the amount (the "Maximum Charge") permitted thereof
by the Regulations, then Tenant, during the period (the "Freeze Period") when
the Regulations shall be in force and effect, shall not be required to pay, nor
shall Landlord be permitted to collect, any sum in excess of the Maximum Charge.
Upon the earlier of (i) the expiration of the Freeze Period, or (ii) the
issuance of a final order or judgment of a court of competent jurisdiction
declaring the Regulations to be invalid or not applicable to the provisions of
this Lease, Tenant, to the extent not then proscribed by law, commencing with
the first day of the month immediately following, shall pay to Landlord as
additional Rent, in equal monthly installments during the balance of the Lease
Term, a sum equal to the cumulative difference between the Maximum Charges and
the Lease Payments during the Freeze Period. If any provisions of this section,
or the application thereof, shall to any extent be declared to be invalid or
unenforceable, the same shall not be deemed to affect any of the other
provisions of this section or of this Lease, all of which shall be deemed valid
and enforceable to the fullest extent permitted by law. It is the intention of
Landlord and Tenant to conform strictly to applicable usury laws. Accordingly,
notwithstanding anything to the contrary contained herein or in any other
agreement entered into in connection with or as security for this Lease, it is
agreed that the aggregate of all consideration which constitutes interest under
applicable law (including, but not limited to, any late charges that may
constitute interest under applicable law) that is taken, reserved, contracted
for, charged or received under this Lease, or otherwise in connection with this
Lease, shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be credited on Tenant's
obligations under this Lease (or, if all such obligations have been paid in
full, refunded to Tenant).
30
ARTICLE XXVI
MISCELLANEOUS
26.1 Nothing in this Lease shall be deemed or constructed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of a partnership or joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
Rent, nor any other provision contained herein, nor any acts of the parties
herein, shall be deemed to create any relationship between the parties hereto
other than the relationship of landlord and tenant.
26.2 Tenant shall not, for any reason, withhold or reduce Tenant's
required payments of Rent and other charges provided in this Lease, it being
agreed that the obligations of Landlord under this Lease are independent of
Tenant's obligations except as may be otherwise expressly provided. The
immediately preceding sentence shall not be deemed to deny Tenant the ability of
pursuing all rights granted it under this Lease or at law; however, at the
direction of Landlord, Xxxxxx's claims in this regard shall be litigated in
proceedings different from any litigation involving Xxxx claims or other claims
by Landlord against Tenant (i.e., each party may proceed to a separate judgment
without consolidation, counterclaim or offset as to the claims asserted by the
other party).
26.3 Anything contained herein to the contrary notwithstanding, the
liability of Landlord to Tenant for any event of default by Landlord under the
terms of this Lease shall be limited to the proceeds of sale on execution of the
interest of Landlord in the Premises; and Landlord shall not be personally
liable for any deficiency, except that Landlord shall, subject to the provisions
of Section 17.6 hereof, remain personally liable to account to Tenant for any
security deposit under this Lease. This clause shall not be deemed to limit or
deny any remedies which Tenant may have upon the occurrence of an event of
default by Landlord hereunder which do not involve the personal liability of
Landlord or otherwise require the payment of money or incurrence of costs by
Landlord.
26.4 In all circumstances under this Lease, where the prior consent
of one party (the "consenting party"), whether it be Landlord or Tenant, is
required before the other party (the "requesting party") is authorized to take
any particular type of action, such consent shall not be withheld in an
unreasonable or arbitrary manner; however, the requesting party agrees that its
exclusive remedy if it believes that consent has been withheld improperly
(including, but not limited to, consent required from Landlord pursuant to
Section 8.2 or Section 17.1) shall be to institute litigation either for a
declaratory judgment or for a mandatory injunction requiring that such consent
be given (with the requesting party hereby waiving any claim for damages as a
result thereof unless the consenting party refuses to comply with a court order
or judgment requiring it to grant its consent).
26.5 One or more waivers of any covenant, term or condition of this
Lease by either party shall not be construed as a waiver of a subsequent breach
of the same covenant, term or condition. The consent or approval by either
party to or of any act by the other party requiring such consent or approval
shall not be deemed to waive or render unnecessary consent to or approval of any
subsequent similar act. No expiration or termination of the Lease Term or
Tenant's rights of possession hereunder, and no re-entry or repossession of the
Premises, and no reletting of the Premises, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination, re-entry, repossession or reletting. Xxxxxxxx's
failure to insist upon the strict performance of any provision hereof, or to
exercise any option or remedy contained herein, shall not constitute a waiver
thereof or of any provision, option, right or remedy in the future. Receipt by
Landlord of any Rent or other sum with knowledge of any breach or Event of
Default by Tenant hereunder shall not waive such breach or Event of Default, and
no waiver of any provision hereof shall occur unless made in writing. Failure
to declare any Event of Default immediately upon occurrence, or delay in taking
any action or remedy in connection therewith, shall not waive the Event of
Default nor require the giving of any further notice or opportunity to cure
prior to exercise of remedies. Neither the acceptance of late payments nor the
giving of notice or opportunity to
31
cure where none are required shall constitute a waiver by Landlord or create any
obligation that Landlord give any future notice or opportunity to cure.
26.6 Whenever a period of time is herein prescribed for action to be
taken by Landlord or Tenant (other than the payment of Minimum Guaranteed Rental
and Percentage Rental by Tenant), Landlord or Tenant shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the reasonable control of
Landlord and Tenant.
26.7 If any provision of this Lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Lease shall not be affected thereby.
26.8 The laws of the State of Louisiana shall govern the
interpretation, validity, performance and enforcement of this Lease. Venue for
any action under this Lease shall be in the parish or parishes in which the
Premises are located.
26.9 The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
26.10 Whenever herein the singular number is used, the same shall
include the plural, and words of any gender shall include each other gender.
26.11 The terms, provisions and covenants contained in this Lease
shall apply to, inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors in interest, assigns (to the extent
allowed herein) and legal representatives, except as otherwise herein expressly
provided.
26.12 If any property of Tenant is left in the Premises for at least
ten (10) days after Tenant deserts, vacates or abandons the Premises, then such
property shall be deemed abandoned by Tenant, and same shall (at Landlord's
option) be Landlord's property without compensation to Tenant therefor and
Landlord may dispose of, sell or use same without liability to Tenant.
Alternatively, Landlord may elect not to own such property and may require
Tenant to remove the property immediately, and if Tenant fails to do so,
Landlord may remove, store and/or dispose of such property as Landlord deems
appropriate, at Tenant's expense, without liability to Tenant or others
therefor.
26.13 This Lease contains the entire agreement between the parties,
and no brochure, rendering, information or correspondence shall be deemed to be
part of this Lease unless specifically incorporated herein by reference. In
addition, no agreement shall be effective to change, modify or terminate this
Lease, in whole or in part, unless such agreement is in writing and duly signed
by the party against whom enforcement of such change, modification or
termination is sought. Notwithstanding any reentry or reletting or other action
by Xxxxxxxx, no surrender of this Lease or of any or all of the Premises shall
be effective unless Landlord expressly agrees to such surrender in writing.
26.14 LANDLORD AND TENANT HEREBY ACKNOWLEDGE THAT THEY ARE NOT
RELYING UPON ANY BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF
THE OTHER, OR OF ANY OTHER PERSON OR ENTITY, EXCEPT AS MAY BE EXPRESSLY SET
FORTH IN THIS LEASE.
26.15 This Lease consists of twenty-six articles and Exhibits "A"
through "D". In the event any provision of an exhibit or other attached page
shall be inconsistent with a provision in the body of this Lease, the provision
as set forth in the exhibit shall be deemed to control.
32
26.16 In the event either party shall find it necessary to employ an
attorney or initiate any legal proceeding to enforce any provision of this
Lease, whether at law or in equity, the party prevailing shall be entitled (in
addition to any award or judgment for damages) to receive reimbursement of
reasonable attorneys' fees and litigation expenses from the other party.
26.17 Landlord warrants that it has full right and power to execute
this Lease and perform its obligations under this Lease, and Landlord agrees,
represents and warrants that Tenant shall peaceably and quietly have, hold, and
enjoy the Premises during the Lease Term, subject to the terms of this Lease,
the Ground Lease and the state of existing title.
26.18 On or before August 1, 1999, Tenant shall provide to Landlord
commitment letters, letters of intent and other information reasonably required
by Landlord to evidence Tenant's ability to obtain the financing necessary for
Tenant to comply with Xxxxxx's duties under this Lease, including without
limitation, construction of the Improvements.
26.19 Neither Landlord nor Tenant shall record this Lease, but they
shall execute and acknowledge a memorandum of lease in the form of Exhibit "B"
attached hereto and incorporated herein by reference, simultaneously with their
execution of this Lease, and Xxxxxx shall, at its sole expense, record such
memorandum of lease promptly after execution of this Lease. If it becomes
necessary to revise such initial memorandum of lease after it is executed,
Landlord and Tenant shall, within twenty (20) days after request is made by the
other party, execute, acknowledge and record an amended memorandum of lease.
Upon termination of this Lease by expiration or otherwise, Landlord and Xxxxxx
shall execute, acknowledge and deliver the necessary documents to release of
record any such memorandum of lease.
26.20 If Tenant exercises its second five-year renewal option to
extend this Lease as set forth in Section 1.1(i) Landlord shall, notwithstanding
such extension, at all times after commencement of such second five-year renewal
option, have the right to terminate this Lease (the "Termination Right"), with
such termination to be effective as of the date selected by Landlord. In
addition, the Termination Right is subject to the following provisions:
(a) In the event Landlord, in its sole discretion, elects to exercise
the Termination Right, Landlord shall give Tenant at least 180 days' prior
written notice of such election (the "Termination Notice"). The Termination
Notice shall state the termination date ("Termination Date") of the Lease as
selected by Landlord.
(b) In the event that (1) the Termination Date is prior to the
commencement of the third five-year renewal period as described in Section
1.1(i), and (2) Landlord intends to sublease to third parties, on or prior to
the date 18 months after the Termination Date, in excess of 40,000 square feet
of retail space within the property leased to Landlord by Owner under the Ground
Lease, Landlord shall propose replacement space for Tenant that is materially
comparable to or better than the Premises (the "Replacement Space") and provide
the details of such Replacement Space within or together with the Termination
Notice.
(c) (1) If Landlord is required under Section 26.20(b) to propose
Replacement Space for Tenant, Tenant shall have 90 days from the date of the
Termination Notice to inform Landlord whether it (i) accepts the Replacement
Space, or (ii) declines to accept the Replacement Space because Tenant believes
such Replacement Space is not materially comparable to or better than the
existing Premises ("Comparable Space"). If Tenant fails to respond within said
90 day period, (x) the Replacement Space will be deemed to be Comparable Space,
(y) Tenant will be deemed to have accepted the Replacement Space, and (z) Tenant
shall have no further right to contest such matters. If Tenant declines to
accept the Replacement Space because Xxxxxx believes such Replacement Space is
not Comparable Space, the issue of whether the Replacement Space is Comparable
Space shall be settled by arbitration administered by the American Arbitration
Association under its Arbitration Rules for the Real Estate Industry (an
"Arbitration Proceeding") and
33
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. The losing party shall bear all of the costs of the
foregoing proceeding.
(2) If the Replacement Space is accepted by Tenant or deemed accepted
by Tenant, Tenant shall relocate, at Tenant's or its Subtenants' expense (except
as set forth in clauses (i) and (ii) below), to the Replacement Space and shall
occupy the Replacement Space for the remainder of the Lease Term, as so
extended, and the terms and provisions of this Lease shall apply to Tenant's
occupancy thereof. Within 30 days after Xxxxxx's relocation to the Replacement
Space, Landlord shall pay Tenant the following sums:
(i) an amount equal to the product of (x) the Subtenants'
collective Earnings Before Interest, Taxes, Depreciation and Amortization,
determined in accordance with generally accepted accounting principles, for the
12 months preceding the month during which Landlord sends the Termination Notice
("Subtenants' Trailing EBITDA"), multiplied by (y) the quotient of (I) the
number of days elapsing from the Termination Date through the earlier of (A) 180
days after the Replacement Space is deemed "ready for tenant improvements" (as
defined in Section 3.1 of this Lease) or (B) the date the first retailer opens
for business in the Replacement Space (the "Loss Period"), divided by (II) 365
(by way of example, if the Loss Period is 182 days, and the Subtenants' Trailing
EBITDA is $10,000,000, then the sum to be paid by Landlord to Tenant pursuant to
this Section 26.20(c)(2)(i) would be $10,000,000 times 182/365 = $5,000,000;
plus
(ii) an amount equal to the product of (x) the sum of Net Cash
Flow and the Management Fee for the 12 months preceding the month during which
Landlord sends the Termination Notice ("Trailing Net Cash Flow"), multiplied by
(y) the quotient of the Loss Period divided by 365.
(d) If (i) Landlord is required under Section 26.20(b) to propose
Replacement Space for Tenant, (ii) Tenant declines to accept the Replacement
Space because Tenant believes such Replacement Space is not Comparable Space,
and, (iii) if contested in an Arbitration Proceeding, the arbitrator(s)
determine that the Replacement Space is not Comparable Space, then Tenant shall
not relocate, or be entitled to relocate, to the Replacement Space proposed by
Landlord, this Lease shall terminate on the Termination Date (or as soon
thereafter as practicable if the determination of the arbitrator(s) in the
Arbitration Proceeding has not been made on or before the Termination Date), and
within 30 days after the Termination Date (or within 30 days after the actual
termination date if such date is delayed pending the determination of the
arbitrator(s) in the Arbitration Proceeding), Landlord shall pay Tenant the
following sums:
(x) an amount equal to the product of Subtenants' Trailing EBITDA
multiplied by 5; plus
(y) an amount equal to the product of (I) the remainder of (A)
Trailing Net Cash Flow minus (B) Percentage Rental for the 12 months preceding
the month during which Landlord sends the Termination Notice, multiplied by (II)
6.
In no event shall Landlord be required to pay any of the Subtenants
any amount of money pursuant to Landlord's exercise of the Termination Right.
Landlord's only payment requirements pursuant to its Termination Right are as
set forth in this Section 26.20.
(e) If (i) the Tenant declines to accept Replacement Space because
Tenant believes such Replacement Space is not Comparable Space, and, (ii) if
contested in an Arbitration Proceeding, the arbitrator(s) determine that the
Replacement Space is Comparable Space, Tenant shall not relocate, or be entitled
to relocate, to the Replacement Space (if any) proposed by Landlord, this Lease
shall terminate on the Termination Date (or as soon thereafter as practicable if
the determination of the arbitrator(s) in the Arbitration Proceeding has not
been made on or before the Termination Date) and Landlord shall have no further
obligation to Tenant under this Lease.
34
26.21 With respect to certain real property in the vicinity of the
Premises and the Shoreside Complex (as defined in the Ground Lease), located
under the Texas Street Bridge in Shreveport, Louisiana and as more particularly
set forth on Exhibit "C," attached hereto and incorporated herein by reference
(the "Texas Street Bridge Property"), Landlord and Tenant agree as follows: In
the event that (i) Tenant is not in default of any terms or conditions of this
Lease, (ii) Landlord is not currently occupying, subletting or otherwise using
the Texas Street Bridge Property and (iii) Landlord is willing, in its sole
discretion, to put such property to use, then Tenant shall have a right of first
offer to sublease the Texas Street Bridge Property upon the following terms and
conditions: If Landlord at any time decides to sublease all or any portion of
the Texas Street Bridge Property or any interest therein (the "Offered
Property") to another party, before offering such Offered Property for lease,
Landlord will notify Tenant in writing (said notice referred to herein as the
"ROFO Notice") and offer to sublease to Tenant the Offered Property at a price
and on terms as Landlord shall determine (the "Right of First Offer"). Tenant
shall have five business days after receipt of such notice (the "Election
Period") to elect by written notice to Landlord to sublease the Offered
Property, and Landlord will sublease it to Tenant upon the terms set forth in
the ROFO Notice.
If, within the Election Period, Tenant elects not to sublease the
Offered Property or fails to provide the written notice to Landlord prior to
expiration of the Election Period, Landlord may proceed to sublease the Offered
Property to any other person or entity on terms substantially the same as
offered to Tenant.
26.22 If the applicable casino regulatory organization in any
jurisdiction in which Landlord or any of its constituent partners (or any of
their respective affiliates) holds a gaming or gaming-related license compels
such party to discontinue its relationship with Tenant or any Subtenant (an
"Unsuitable Party"), then such Unsuitable Party shall divest itself of its
interest in the Premises as soon as possible, but in no event later than 120
days after being advised of such unsuitability. If such Unsuitable Party fails
to divest itself of its interest in the Premises within such time frame, then
Landlord shall have the right to acquire all of such Unsuitable Party's interest
in the Premises for an amount equal to the lesser of (i) the book value of such
Unsuitable Party's interest in the Premises or (ii) the amount approved by the
applicable casino regulatory authority.
ARTICLE XXVII
EQUAL OPPORTUNITY EMPLOYMENT AND AFFIRMATIVE ACTION PLAN
27.1 Tenant and Landlord do hereby incorporate the provisions of
Article XXVIII of the Ground Lease, a copy of which is annexed hereto as Exhibit
"D", into this Lease, and Tenant hereby agrees to incorporate Landlord's
obligations to Owner under said Article XXXIII of the Ground Lease into Tenant's
business plan and its ongoing business activities, Tenant hereby agreeing that
Landlord shall be entitled to enforce said Article XXXIII of the Ground Lease
against Tenant as if Landlord was the "Landlord" under said Ground Lease and
Xxxxxx was the "Tenant" under said Ground Lease.
35
EXECUTED as of the latest date accompanying a signature by Landlord or
Tenant below.
LANDLORD:
QNOV, a Louisiana general partnership
Taxpayer Identification No.: 00-0000000
By: Sodak Louisiana, L.L.C., its general partner
By: /s/ XXXX X. XXXXX
-----------------------------------
Title: Manager
-----------------------------------
Date: June 3, 1999
-----------------------------------
By: HWCC-Louisiana, Inc., its general partner
By: /s/ XXXX X. XXXXX
-----------------------------------
Title: Manager
-----------------------------------
Date: June 3, 1999
-----------------------------------
TENANT:
RED RIVER ENTERTAINMENT COMPANY, L.L.C.,
a Tennessee limited liability company
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Title: Chief Manager
Date of Signature:
Taxpayer Identification No.: 00-0000000
36
EXHIBIT "A"
PREMISES
37
EXHIBIT "B"
FORM OF MEMORANDUM OF LEASE
STATE OF______________ (S)
(S)
COUNTY/PARISH OF______ (S)
THIS MEMORANDUM OF LEASE AGREEMENT ("Memorandum") is entered into as
of the ____ day of , 1999, by and between QNOV, a Louisiana general
partnership ("Landlord"), and RED RIVER ENTERTAINMENT COMPANY, L.L.C., a
___________ limited liability company ("Tenant"), sometimes collectively
referred to herein as the "Parties" or singularly as a "Party".
RECITALS
A. Landlord and Tenant have entered into a Retail Space Lease on the
____ day of ____________, 1999 (the "Lease") covering the property described on
Exhibit "A," attached hereto and made a part hereof for all purposes (the
"Premises").
X. Xxxxxxxx and Tenant desire to enter into and record this
Memorandum in the public records of Bossier/Caddo Parish, Louisiana, to put all
third parties on notice of the Lease and Xxxxxx's rights thereunder in and to
the Premises.
AGREEMENT
1. The Lease. Upon and subject to the terms and provisions set forth
in the Lease, Landlord has leased, demised and let unto Tenant, and Tenant has
taken and leased from Landlord, the Premises. Xxxxxx has certain rights and
interests in the Premises under the Lease.
2. Term. The Term of the Lease commences on the ____ day of
____________, 1999, and runs through the ____ day of , 2____. Provided
Tenant is not in default of its obligations or has not been in default, Tenant
shall have three (3) five-year options to renew the Lease provided it gives
written notice to Landlord at least one hundred eighty (180) days prior to the
expiration of the Lease Term or the first renewal term, as the case may be.
3. Right to Lease Additional Property. The Lease contains a provision
which entitles Tenant to sublease the property described on Exhibit "B" hereto
from Landlord should Landlord elect to sublease said property.
4. Incorporation of Lease. The terms, conditions and provisions of
the Lease are incorporated herein by reference for all purposes. Any
inconsistencies between this Memorandum and the Lease are governed by the Lease
and not by this Memorandum. This Memorandum in no way modifies or amends the
Lease.
[The remainder of this page has been left intentionally blank.]
38
Executed as of the day and year first above written.
LANDLORD:
QNOV, a Louisiana general partnership
Taxpayer Identification No.: 00-0000000
By: Sodak Louisiana, L.L.C. , its general partner
By:
---------------------------------------
Title: Manager
------------------------------------
Date:
------------------------------------
By: HWCC-Louisiana, Inc., its general partner
By:
---------------------------------------
Title: Manager
------------------------------------
Date:
------------------------------------
TENANT:
RED RIVER ENTERTAINMENT COMPANY, L.L.C.,
a Tennessee limited liability company
By:
---------------------------------------
Title: Chief Manager
------------------------------------
Date of Signature:
------------------------
Taxpayer Identification No.: 00-0000000
--------------
39
ACKNOWLEDGEMENT
STATE OF __________________
COUNTY OF ________________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the Manager of Sodak Louisiana,
L.L.C., and that he is authorized to execute and deliver the foregoing Retail
Space Lease on behalf of Sodak Louisiana, L.L.C. acting in its capacity as a
general partner of QNOV, and that he signed and executed the foregoing Retail
Space Lease, as the free and voluntary act and deed of QNOV, for and on behalf
of QNOV and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
ACKNOWLEDGEMENT
STATE OF __________________
COUNTY OF ________________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the _______________ of HWCC-
Louisiana, X.XX., and that he is authorized to execute and deliver the foregoing
Retail Space Lease on behalf of HWCC-Louisiana, L.L.C. acting in its capacity as
a general partner of QNOV, and that he signed and executed the foregoing Retail
Space Lease, as the free and voluntary act and deed of QNOV, for and on behalf
of QNOV and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
ACKNOWLEDGEMENT
STATE OF _________________
_________ OF ___________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County/Parish and State, personally came and
appeared ________________, to me known, who declared and acknowledged to me,
Notary, and the undersigned competent witnesses that he is the Chief Manager of
RED RIVER ENTERTAINMENT COMPANY, L.L.C., and that he is authorized to execute
and deliver the foregoing Retail Space Lease on behalf of RED RIVER
ENTERTAINMENT COMPANY, L.L.C., and that he signed and executed the foregoing
Retail Space Lease, as the free and voluntary act and deed of said entity, for
and on behalf of said entity and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
EXHIBIT "C"
TEXAS STREET PARCEL
The property bounded by the Red River on one side, the North Parking
Parcel (as defined in the Ground Lease) and South Parking Parcel (as defined in
the Ground Lease) on another side, Commerce Street on another side and the
Pavillion/Hotel Parcel (as defined in the Ground Lease) and Expansion Parcel (as
defined in the Ground Lease) on another side.
EXHIBIT "D"
ARTICLE XXXIII - EQUAL OPPORTUNITY EMPLOYMENT AND
AFFIRMATIVE ACTION PLAN
Tenant shall utilize, and coordinate with, the Office of the Mayor to
help ensure the various provisions within this Article XXXIII are fulfilled in a
manner that fosters meaningful participation opportunities for local and
minority/women business enterprise ("M/WBE") vendors, suppliers and contractors.
Xxxxxx agrees that it will make good faith efforts to meet and increase the
voluntary M/WBE goals that Tenant establishes with the Louisiana Gaming Control
Board. These goals have been established as 25% minority business enterprise
procurement and 10% female business enterprise procurement. In an effort to
meet and increase those goals, Tenant and Landlord shall establish and appoint
an Equal Opportunity Employment and Procurement Advisory Council (the "Advisory
Council") comprised of business leaders to advise on the establishment of and
support the attainment of M/WBE procurement and employment goals, with the
overall objective of expanding the level of M/WBE procurement, and increasing
the number of minorities in management positions. The Advisory Council shall be
comprised of six (6) members, three (3) of whom shall be appointed by the
Landlord. Tenant and Landlord may change the number and method of appointment
of members and the frequency of meetings by mutual consent. The Advisory
Council shall provide Tenant with suggested methods to increase M/WBE
procurement activity, and to increase minority representation in management
positions. The Advisory Council shall meet monthly with representatives of the
Tenant regarding Xxxxxx purchasing needs and goals for the next ninety (90)
days. The Tenant shall provide Landlord and Advisory Council with quarterly
reports on M/WBE procurement and employment goals established by Xxxxxx and
related goal achievement. Such reports shall be issued within thirty (30) days
from the end of each calendar quarter of each year.
Xxxxxx agrees to use its best efforts to in good faith:
(a) seek to employ in its operations, at all levels, individuals
living in the City of Shreveport from the various gender, racial and ethnic
backgrounds found in the City of Shreveport. The selection process will be
carried out with a focus on Xxxxxx's commitment to hiring at least eighty
percent (80%) local area residents and at least forty percent (40%)
minorities.
(b) actively recruit handicapped persons in the City of
Shreveport to be included among its employees. Tenant will contact
applicable organizations within the greater Shreveport area that support
persons with disabilities to seek out qualified persons with disabilities
for potential employment. Tenant will fully comply with the Americans with
Disabilities Act. Furthermore, Xxxxxx is taking a leadership position
within the industry by training all of its employees in disability
etiquette toward customers and fellow employees.
(c) contract with local vendors of various gender, racial and
ethnic backgrounds found in the City of Shreveport to the extent possible
and insofar as service availability, cost competitiveness and service
quality will allow.
Tenant will establish a goal expenditure level for certified M/WBEs.
Contracting preference will be given to qualified M/WBEs certified by
either the Mayor of the City of Shreveport or the State of Louisiana.
Tenant will develop a partnership with local area certified M/WBEs to help
them secure a positive business relationship by offering expert advice on
purchasing matters, setting up bids, seeking operational monies, and, if
necessary, establishing an up-front-payment plan for goods and services
rendered. In evaluating M/WBE participation, consideration will be given
to the reasonable price" of that participation. This reasonable price"
concept: (i) recognizes that because of difficulty in obtaining financing,
start-up costs, less experience, inability to purchase large quantities of
supplies and other factors, M/WBE prices may be somewhat higher than those
of non-M/WBEs, at least
initially; (ii) provides protection to M/WBEs from being rejected when
their prices are only slightly higher than non-M/WBEs; and (iii) provides
that meeting stated M/WBE goals is treated similarly to complying with any
other specification of the bid solicitation which a contractor must meet in
order to be considered a responsive bidder.
Construction Phase - Prior to the contracting process, Tenant will meet
with a representative sampling of minority and female construction related
companies in a geographic area no smaller than an area encompassing Dallas,
Texas, New Orleans, Louisiana and Atlanta, Georgia (the "Subject Area") to
ensure that such companies: (1) are fully aware of the available contract
opportunities for construction projects and (2) have a Tenant contact
person available to answer questions throughout the contracting and
construction phase of such projects. After surveying a representative
sampling of minority and female construction related companies in the
Subject Area, Tenant will establish a goal for the total construction
budget to be contracted with such companies. Any general contractor
wanting to do business with Tenant for construction projects must accept
this provision in order to contract with Tenant. The general contractor
will be held accountable for ensuring compliance with M/WBE goals and will
be required to report on such goal compliance at least quarterly (such
reports will be made available to the Office of the Mayor).
Operations Phase - M/WBE companies will be identified and contacted by
local management. As should be the case in any business, vendors will be
sought that can offer quantity, quality and service, but with a strong
commitment to M/WBE companies.
(d) provide training in the City of Shreveport for individuals to
be employed by Xxxxxx. Once hired, an employee will be trained in the
skills necessary to deliver the kind of service for a first-class riverboat
casino/hotel complex. Individuals will be paid during the training period.
This mandatory training will address applicable job functions within the
gaming business (e.g., table games, slot machines, shift supervision,
security, food and beverage, guest services, etc.) Tenant will continue to
work with the various community groups identified above to keep the line of
communication continuously open.
Tenant will provide to Landlord Tenant's annual community review
report covering the Shreveport properties of Tenant. Tenant believes that any
commitment such as made above should include a reporting and feedback mechanism,
and Tenant accordingly welcomes the requirement for such reporting. The annual
community review report will cover minority hiring as well as business done with
M/WBEs.
ACKNOWLEDGEMENT
STATE OF __________________
COUNTY OF ________________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the Manager of Sodak Louisiana,
L.L.C., and that he is authorized to execute and deliver the foregoing
Memorandum of Lease on behalf of Sodak Louisiana, L.L.C. acting in its capacity
as a general partner of QNOV, and that he signed and executed the foregoing
Memorandum of Lease, as the free and voluntary act and deed of QNOV, for and on
behalf of XXXX and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
ACKNOWLEDGEMENT
STATE OF __________________
COUNTY OF ________________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the _______________ of HWCC-
Louisiana, X.XX., and that he is authorized to execute and deliver the foregoing
Memorandum of Lease on behalf of HWCC-Louisiana, L.L.C. acting in its capacity
as a general partner of QNOV, and that he signed and executed the foregoing
Memorandum of Lease, as the free and voluntary act and deed of QNOV, for and on
behalf of XXXX and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
ACKNOWLEDGEMENT
STATE OF _________________
____________ OF ____________
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified and for the aforesaid County/Parish and State, personally came and
appeared ________________, to me known, who declared and acknowledged to me,
Notary, and the undersigned competent witnesses that he is the Chief Manager of
RED RIVER ENTERTAINMENT COMPANY, L.L.C., and that he is authorized to execute
and deliver the foregoing Memorandum of Lease on behalf of RED RIVER
ENTERTAINMENT COMPANY, L.L.C., and that he signed and executed the foregoing
Memorandum of Lease, as the free and voluntary act and deed of said entity, for
and on behalf of said entity and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and
the said appearer and the said witnesses have hereunto affixed their signatures
this ____ day of ___________________, 1999.
WITNESSES:
___________________________________ _________________________________
____________________
___________________________________
___________________________________
NOTARY PUBLIC
My Commission expires:______________
