Exhibit 10.127
Lease Agreement - Venetian
GRAND CANAL SHOPS
Xxxxx County, Nevada
LANDLORD
Grand Canal Shops Mall Construction, LLC,
a Delaware limited liability company
TENANT
Toys International,
a California corporation
Space No.
1212
TABLE OF CONTENTS
ARTICLE I
INTRODUCTORY PROVISIONS 1
Section 1.0 - Basic Lease Provisions ....................................... 1
(a) Shopping Center ............................................... 1
(b) Space Number .................................................. 1
(c) Approximate Premises GLA ...................................... 1
(d) Term of Lease ................................................. 1
(e) Scheduled Opening Date ........................................ 1
(f) Rent Commencement Date ........................................ 1
(g) Fixed Minimum Rent ............................................ 2
(h) Percentage Rent ............................................... 2
(i) Payment of Percentage Rent ................................... 2
(j) Sales Reports ................................................. 2
(k) One Time Grand Opening Assessment ............................. 2
(l) Annual Marketing Fund Charge .................................. 3
(m) Intentionally Omitted ......................................... 3
(n) Tenant Insurance .............................................. 3
(o) CAM Costs ..................................................... 3
(p) Taxes ......................................................... 3
(q) Intentionally Omitted ......................................... 3
(r) Utility Services and Charges .................................. 3
(s) Tenant's Trade Name ........................................... 3
(t) Permitted Use ................................................. 3
(u) Intentionally Omitted ......................................... 3
(v) Legal Notice Address .......................................... 3
(w) Security Deposit .............................................. 4
(x) Guarantor ..................................................... 4
(y) Additional Provisions .................................................. 4
Section 1.1 - Defined Terms ................................................ 5
ARTICLE II
EXHIBITS ............................................................... 6
Section 2.1 - Exhibits ................................................. 6
ARTICLE III
PREMISES ............................................................... 6
Section 3.1 - Premises ................................................. 6
Section 3.2 - Gross Leasable Area of the Premises ...................... 7
Section 3.3 - Revisions to Premises GLA ................................ 7
Section 3.4 - Landlord's Reservation ................................... 7
Section 3.5 - Relocation ............................................... 7
Section 3.6 - Remodeling ............................................... 8
ARTICLE IV
COMMON AREAS ........................................................... 9
Section 4.1 - Use ...................................................... 9
Section 4.2 - Management and Operation of Common Areas ................. 9
ARTICLE V
CHANGES AND ADDITIONS TO
SHOPPING CENTER SITE PLAN AND LEASING PLAN ............................. 9
Section 5.1 - Site Plan ................................................ 9
Section 5.2 - Changes to Shopping Center Site Plan ..................... 9
ARTICLE VI
IMPROVEMENTS ........................................................... 10
Section 6.1 - Landlord's Responsibilities .............................. 10
Section 6.2 - Tenant's Responsibilities ................................ 11
Section 6.3 - Tenant's Trade Fixtures .................................. 11
Section 6.4 - Construction Lien ........................................ 12
Section 6.5 - Labor Cooperation ........................................ 12
ARTICLE VII
PLANS .................................................................. 12
Section 7.1 - Submission of Plans ...................................... 12
ARTICLE VIII
USE .................................................................... 13
Section 8.1 - Use ...................................................... 13
Section 8.2 - Tenant's Covenant to Operate ............................. 13
Section 8.3 - Prohibitions on Use ...................................... 13
Section 8.4 - Manner of Operation of Business .......................... 14
Section 8.5 - Privileged License ....................................... 14
Section 8.6 - Vendor Agreements ........................................ 15
ARTICLE IX
TERM ................................................................... 15
Section 9.1 - Term ..................................................... 15
Section 9.2 - Commencement Date Agreement .............................. 15
Section 9.3 - Holding Over ............................................. 15
Section 9.4 - Expiration of the Term of the Lease ...................... 15
Section 9.5 - Renewal of Term .......................................... 16
ARTICLE X
RENT COMMENCEMENT DATE ................................................. 16
Section 10.1 - Rent Commencement Date .................................. 16
Section 10.2 - Failure of Delivery of Premises to Tenant ............... 16
Section 10.3 - Tenant's Failure to be Open by the Rent Commencement Date 16
ARTICLE XI
RENT ................................................................... 17
Section 11.1 - Fixed Minimum Rent ...................................... 17
Section 11.2 - Percentage Rent ......................................... 17
Section 11.3 - Gross Revenue ........................................... 18
Section 11.4 - Exclusion from Gross Revenue ............................ 18
Section 11.5 - Reporting ............................................... 19
Section 11.6 - Books and Records ....................................... 20
ARTICLE XII
ADDITIONAL CHARGES ..................................................... 21
Section 12.1 - Status of Charges ....................................... 21
Section 12.2 - Common Area Maintenance Costs ........................... 21
Section 12.3 - Real Estate Taxes ....................................... 23
Section 12.4 - Marketing Fund .......................................... 25
Section 12.5 - Security Deposit ........................................ 25
Section 12.6 - Grand Opening Marketing Assessment ...................... 26
ARTICLE XIII
PREMISES UTILITY SERVICES .............................................. 26
Section 13.0 - Status of Charges ....................................... 26
Section 13.1 - Utilities ............................................... 26
Section 13.2 - Premises Heating, Ventilating and Air-conditioning System 26
Section 13.3 - Discontinuance of Service ............................... 26
Section 13.4 - Interruption of Service ................................. 27
ARTICLE XIV
SIGNS .................................................................. 27
Section 14.1 - Tenant's Obligation ..................................... 27
Section 14.2 - Interior Signs and Advertising .......................... 27
ARTICLE XV
REPAIRS AND ALTERATIONS ................................................ 27
Section 15.1 - Repairs by Landlord ..................................... 27
Section 15.2 - Repairs by Tenant ....................................... 28
Section 15.3 - Alterations and Remodeling .............................. 28
Section 15.4 - Renovation .............................................. 29
Section 15.5 - Refurbishment ........................................... 29
ARTICLE XVI
LIENS .............................................................. 29
Section 16.1 - Indemnification by Tenant ........................... 29
Section 16.2 - Tenant's Right of Contest ........................... 29
ARTICLE XVII
INDEMNITY AND INSURANCE ............................................ 29
Section 17.1 - Mutual Indemnification .............................. 29
Section 17.2 - Tenant's Insurance .................................. 30
Section 17.3 - Landlord's Insurance ................................ 32
Section 17.4 - Waiver of Subrogation ............................... 33
Section 17.5 - Landlord Not Responsible for Acts of Others ......... 33
ARTICLE XVIII
GENERAL RULES AND REGULATIONS ...................................... 33
Section 18.1 - Uniformity .......................................... 33
Section 18.2 - Rubbish ............................................. 33
Section 18.3 - Lighting ............................................ 33
Section 18.4 - Merchandise Display, Loading and Unloading .......... 33
Section 18.5 - Obstruction of Passageways .......................... 34
Section 18.6 - Employee Parking .................................... 34
Section 18.7 - Interference With Other Tenants ..................... 34
Section 18.8 - Security ............................................ 34
Section 18.9 - Employee Areas ...................................... 34
Section 18.10 - Tenant Conduct ..................................... 34
Section 18.11 - Gaming ............................................. 34
Section 18.12 - Prohibited Advertising ............................. 35
Section 18.13 - Resort References .................................. 35
Section 18.14 - Prohibited Uses .................................... 35
Section 18.15 - Employee Drug Testing .............................. 35
ARTICLE XIX
SUBORDINATION AND ATTORNMENT BY TENANT ............................. 35
Section 19.1 - Subordination of Lease .............................. 35
Section 19.2 - Attornment by Tenant ................................ 36
ARTICLE XX
RIGHTS OF LANDLORD ................................................. 36
Section 20.1 - Landlord's Right to Repair .......................... 36
Section 20.2 - Landlord's Right to Affix Sign ...................... 36
Section 20.3 - Landlord's Right to Make Payments on Behalf of Tenant 36
ARTICLE XXI
ASSIGNMENT AND SUBLETTING .......................................... 36
Section 21.1 - Landlord's Consent Required ......................... 36
Section 21.2 - Insolvency Proceedings .............................. 37
Section 21.3 - Return of Premises by Tenant ........................ 37
Section 21.4 - Transfer of Ownership ............................... 37
Section 21.5 - Acceptance of Rent by Landlord ...................... 38
Section 21.6 - No Release of Tenant's Liability .................... 38
Section 21.7 - Legal Fees .......................................... 38
ARTICLE XXII
DAMAGE OR DESTRUCTION .............................................. 38
Section 22.1 - Landlord's Obligation to Repair and Reconstruct ..... 38
Section 22.2 - Option to Terminate ................................. 39
Section 22.3 - Demolition of Landlord's Building ................... 39
Section 22.4 - Damage to Shopping Center ........................... 39
ARTICLE XXIII CONDEMNATION ................................................. 40
Section 23.1 - Effect of Taking .................................... 40
Section 23.2 - Compensation and Awards ............................. 40
Section 23.3 - Condemnation or Breach of Lease ..................... 40
ARTICLE XXIV
DEFAULT ............................................................ 40
Section 24.1 - Events of Default ................................... 40
Section 24.2 - Remedies and Damages ................................ 41
Section 24.3 - Repeated Default .................................... 42
Section 24.4 - Waiver of Rights of Redemption ...................... 42
Section 24.5 - Removal of Tenant ................................... 42
Section 24.6 - Default by Landlord ................................. 43
ARTICLE XXV
COMPETITION ........................................... 43
Section 25.1 - Restriction on Tenant .................. 43
Section 25.2 - Imposition of Damages .................. 43
ARTICLE XXVI
NOTICES ............................................... 44
Section 26.1 - Notices to Tenant and Landlord ......... 44
Section 26.2 - Notices to Mortgagee ................... 44
ARTICLE XXVII
MISCELLANEOUS ......................................... 44
Section 27.1 - Accord and Satisfaction ................ 44
Section 27.2 - Complete Agreement ..................... 44
Section 27.3 - Governing Law .......................... 45
Section 27.4 - Compliance with Governmental Authorities 45
Section 27.5 - Brokerage .............................. 45
Section 27.6 - Effective Date of Lease ................ 45
Section 27.7 - Estoppel Certificates .................. 45
Section 27.8 - Force Majeure .......................... 46
Section 27.9 -Partial Invalidity ...................... 46
Section 27.10 - Memorandum of Lease ................... 46
Section 27.11 - Quiet Enjoyment ....................... 46
Section 27.12 - Rent Demand ........................... 46
Section 27.13 - Section Headings ...................... 46
Section 27.14 - Successors and Assigns ................ 46
Section 27.15 - Waiver ................................ 46
Section 27.16 - Exculpation ........................... 47
Section 27.17 - Transfer of Landlord's Interest ....... 47
Section 27.18 - Time of the Essence ................... 47
Section 27.19 - Remedies Cumulative ................... 47
Section 27.20 - Joint Liability ....................... 47
Section 27.21 - Drafting .............................. 47
Section 27.22 - Perpetuities .......................... 47
ARTICLE XXVIII DISPUTE RESOLUTION 48
GUARANTY 50
L E A S E
THIS LEASE is entered into as of this 22nd day of July, 1998, by and
between Grand Canal Shops Mall Construction, LLC, a Delaware limited liability
company, hereinafter called "Landlord", and Toys International, a California
corporation, hereinafter called "Tenant".
ARTICLE I INTRODUCTORY PROVISIONS
Section 1.0 - Basic Lease Provisions .
The following Basic Lease Provisions are an integral part of this Lease,
are referred to in other sections hereof (including, without limitation, the
sections identified below) and are presented in this Section 1.0 for the
convenience of the parties. They are not intended to constitute an exhaustive
list of all charges which may become due and payable under this Lease.
(a) Shopping Center : (Article I, Section 1.1(h)) ` Grand Canal Shops
(b) Space Number : (Article III, Section 3.1) 1212
(c) Approximate Premises GLA : (Article III, Section 3.3)
7,002 square feet total
5,002 square feet first level
2,000 square feet second level
(d) Term of Lease: (Article IX, Section 9.1)
(i) Five (5) Lease Years (as hereinafter defined) commencing on the Rent
Commencement Date (as hereinafter defined) and expiring on the Term Expiration
Date (as hereinafter defined).
(ii) Renewal Term: One (1) option of five (5) Lease Years.
(e) Scheduled Opening Date : (Article X, Section 10.1) April 21, 1999, or
such other date as Landlord may reasonably determine as the opening date for the
Resort (which shall not be earlier than April 1, 1999), provided Landlord
notifies Tenant in writing at least thirty (30) days prior to such alternative
Scheduled Opening Date.
(f) Rent Commencement Date: (Article X, Section 10.1) The later of (i) the
date one hundred ten (110) days after Landlord delivers possession of the
Premises to Tenant with the work to be performed by Landlord under Section
6.1(a) completed other than details of construction which do not materially
interfere with the performance of the work to be performed by Tenant under
Section 6.2, (ii) the Scheduled Opening Date, or (iii) the grand opening of the
Shopping Center; provided, however, that in no event shall the Rent Commencement
Date be later than the date Tenant opens for business.
(g) Fixed Minimum Rent: (Article XI, Section 11.1) During Lease Years 1-3
of the initial Term of this Lease, the Fixed Minimum Rent shall be Four Hundred
Fifty Thousand Dollars ($450,000) per annum (Seventy-Nine and 97/100 Dollars
($79.97) per square foot of the first level Premises GLA per annum plus
Twenty-Five Dollars ($25.00) per square foot of the second level Premises GLA
per annum), payable in equal monthly installments of Thirty-Seven Thousand Five
Hundred Dollars ($37,500). During Lease Years 4-7 of the Term of this Lease, the
Fixed Minimum Rent shall be Four Hundred Ninety Thousand Dollars ($490,000) per
annum (Eighty-Seven and 08/100 Dollars ($87.08) per square foot of the first
level Premises GLA per annum plus Twenty-Seven and 22/100 Dollars ($27.22) per
square foot of the second level Premises GLA per annum), payable in monthly
installments of Forty Thousand Eight Hundred Thirty-Three Dollars ($40,833).
During Lease Years 8-10 of the Term of this Lease, the Fixed Minimum Rent shall
be Five Hundred Fifty Thousand Dollars ($550,000) per annum (Ninety-Seven and
74/100 Dollars ($97.74) per square foot of the first level Premises GLA per
annum plus Thirty and 56/100 Dollars ($30.56) per square foot of the second
level Premises GLA per annum), payable in monthly installments of Forty-Five
Thousand Eight Hundred Thirty-Three Dollars ($45,833).
(h) Percentage Rent : (Article XI, Section 11.2) Eight percent (8%) of
Gross Revenue in excess of (a) Four Million Dollars ($4,000,000) each calendar
year during Lease Years 1 through 5, and (b) Four Million Five Hundred Thousand
Dollars ($4,500,000) each calendar year during Lease Years 6 through 10 (such
Percentage Rent breakpoints shall be prorated for any partial calendar year
during the Term of this Lease); provided, however, that at any time any
Competing Store, as hereinafter defined, is open for business within the
Restricted Area, as hereinafter defined, the preceding dollar amounts shall be
reduced by an amount equal to the product of Three Hundred Thousand Dollars
($300,000) multiplied by the number of Competing Stores then open for business
in any portion of the Restricted Area other than the Resort (such reductions
shall be prorated with respect to Lease Years during which a Competing Store
opens or closes within the Restricted Area, e.g., if a Competing Store first
opens for business, or closes, exactly halfway into a Lease Year, the reduction
for such Lease Year would be One Hundred Fifty Thousand Dollars ($150,000).
(i) Payment of Percentage Rent: (Article XI, Section 11.2) By the fifteenth
(15th) day of each month for the previous month.
(j) Sales Reports : (Article XI, Section 11.5) Monthly on or before the
fifteenth (15th) day of each month of each Lease Year. Annually on or before
forty-five (45) days following the close of each calendar year. (k) One Time
Grand Opening Assessment : (Article XII, Section 12.6) Three Dollars ($3.00) per
square foot of first level Premises GLA.
(l) Annual Marketing Fund Charge :(Article XII, Section 12.4) Three Dollars
($3.00) per square foot of first level Premises GLA per year.
(m) Intentionally Omitted .
(n) Tenant Insurance : (Article XVII, Section 17.2)
(i) Liability: $2,000,000 combined single limit per occurrence basis for
property damage and personal and bodily injury or death.
(ii) Boiler: $100,000, if applicable.
(iii) Environmental Impairment Liability: $1,000,000 for bodily injury or
property damage.
(iv) All-Risk Coverage: Full replacement cost.
(o) CAM Costs : (Article XII, Section 12.2) Proportionate Share; payable
monthly on estimated xxxx.
(p) Taxes : (Article XII, Section 12.3) Proportionate Share; payable
monthly on estimated xxxx.
(q) Intentionally Omitted .
(r) Utility Services and Charges: (Article XIII, Section 13.1) Payable by
Tenant as billed per metered or estimated and adjusted billing. Charges paid
directly to Landlord may include a service charge not to exceed Twenty-Five
Dollars ($25) per month.
(s) Tenant's Trade Name : (Article VIII, Section 8.1) Toys International.
(t) Permitted Use : (Article VIII, Section 8.1) The retail sale of toys
and, at Tenant's option (but only to the extent incidental to the primary
operation of a toy store), better quality collectibles, hobbies, arts and
crafts, children's books, dolls, model kits, child-oriented games,
child-oriented video and audio cassettes, compact discs, laser discs and other
technological innovations thereof, child-oriented computer software, sporting
goods, stuffed animals, other juvenile and child-related goods, and such other
items as are typically displayed in toy stores located within first-class
shopping centers.
(u) Intentionally Omitted.
(v) Legal Notice Address : (Article XXVI, Section 26.1)
Tenant: 000 Xxxxxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: President
Landlord: 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
(notices) Attn: Xxx Xxxxxxxxx, Senior V.P.
Forest City Management, Inc.
Commercial Division
P.O. Box ____________
(payments and copies of notices)Cleveland, Ohio 44101
(w) Security Deposit : (Article XII, Section 12.5) None.
(x) Guarantor :
(i) Name: Play Co. Toys & Entertainment Corp.
(ii) Address: 000 Xxxxxxxxx Xxxxx Xxx Xxxxxx, Xxxxxxxxxx 00000 Attn:
President
(y) Additional Provisions (these provisions shall apply notwithstanding
anything in this Lease to the contrary):
(i) Tenant may open up to two (2) Competing Stores within the Restricted
Area provided each such Competing Store is less than six thousand (6,000) square
feet in size.
(ii) Landlord shall not permit any permanent or temporary tenant or
occupant in the first phase of the Resort (i.e., the phase of the Resort opening
on the Scheduled Opening Date) other than Tenant to have sales of toys in excess
of ten percent (10%) of the sales area or product line at the premises of such
tenant or occupant. If Landlord defaults under this provision, Tenant's remedies
shall include, but not be limited to, reducing Tenant's Fixed Minimum Rent and
Percentage Rent by Fifty Percent (50%) for the duration of such default. If such
default in not cured within one (1) year of Landlord's receipt of notice
thereof, Tenant may at any time prior to the curing of such default terminate
this Lease by notice to Landlord and Landlord shall thereupon pay to Tenant the
unamortized (based on straight line amortization as of the effective date of
termination over a ten (10) year period commencing with the Rent Commencement
Date) costs of Tenant's permanent leasehold improvements at the Premises.
(iii) If Landlord constructs the second phase of the Resort prior to the
termination of this Lease, then Landlord shall negotiate in good faith with
Tenant for the operation by Tenant of a Competing Store in one of the proposed
retail sites in such second phase on substantially the same terms and conditions
(other than the economic terms and conditions) as are contained in this Lease
for the Premises, provided that at the time Landlord notifies Tenant that
Landlord is ready to commence such negotiations, (1) there is no uncured Event
of Default, and (2) Tenant's Gross Revenues during the immediately preceding
twelve (12) month period were equal to or greater than (A) Four Million Dollars
($4,000,000) if Landlord's notice is given during the first or second Lease Year
(provided that if Landlord's notice is given prior to the end of the first
twelve (12) months of the Term of this Lease, then the foregoing dollar amount
shall be reduced to the product of Four Million Dollars ($4,000,000) multiplied
by a fraction, the numerator of which is the number of days between the Rent
Commencement Date and such notice, and the denominator of which is three hundred
sixty-five (365)), or (B) Five Million Dollars ($5,000,000) if Landlord's notice
is given after the second Lease Year. Prior to such negotiations, Landlord shall
provide to Tenant a site plan of such second phase which shall designate the
proposed retail site for Tenant. If within sixty (60) days of Tenant's receipt
of such site plan Landlord and Tenant have not entered into a lease with respect
to the proposed retail site for Tenant, then, except as otherwise provided in
this Section 1.0(y)(iii), Landlord may enter into a lease with respect to such
site with any other person or entity. Should Landlord and Tenant not agree upon
the terms of the lease to be negotiated pursuant to this Section 1.0(y)(iii),
and Landlord later offers the space which is the subject of such negotiation to
other prospective tenants on terms that as a whole are more favorable than those
offered to Tenant, then Landlord shall first offer to rent such space to Tenant
on such more favorable terms. Tenant shall have twenty (20) days after receipt
of Landlord's notice of re-offer (which shall specify the terms of such proposed
lease) to accept such offer.
Section 1.1 - Defined Terms .
Wherever used in this Lease, the following terms shall be construed to mean
as follows:
(a) "COMMON AREAS" shall mean the Enclosed Mall and its amenities
(including entertainment features, such as the canal and gondolas), plaza areas,
surface parking areas, parking decks, structures or garages, if any, driveways,
aisles, sidewalks, loading docks, passageways, landscaping, courts, stairs,
ramps, elevators, escalators, moving walkways, meeting rooms, public restrooms
and other common service areas, provided for by Landlord for the common or joint
use and benefit of the tenants and occupants of the Shopping Center, their
employees, agents, servants, customers and other invitees.
(b) "CPI-U" shall mean the U.S. Department of Labor, Bureau of Labor
Statistics, Consumers Price Index for all Urban Consumers, All Cities Average,
Subgroup "all items" (1982-84=100). If during the Term of this Lease the U.S.
Department of Labor, Bureau of Labor Statistics, ceases to publish a CPI-U, such
other index or standard as will most nearly accomplish the aim and purpose of
said CPI-U and the use thereof by the parties hereto, shall be selected by
Landlord in its reasonable discretion.
(c) "ENCLOSED MALL" shall mean that portion or portions of the climate
controlled enclosed sections of the Shopping Center which are used in common,
among other things, for pedestrian traffic.
(d) "LEASE YEAR" shall mean each twelve (12) month period during the Lease
Term, including any extension thereof under Section 9.5, commencing with the
Rent Commencement Date; provided, however, that if the Rent Commencement Date is
not the first day of a month, then the first Lease Year shall commence on the
Rent Commencement Date and end on the last day of the twelfth full calendar
month thereafter and the second and each succeeding Lease Year shall commence on
the first day of the next calendar month.
(e) "PREMISES" shall mean the specific demised store space leased to Tenant
by Landlord now existing or to be constructed in the Shopping Center. The
Premises are cross-hatched on Exhibit "B", attached hereto for the sole purpose
of more specifically locating the Premises.
(f) "RENTS" shall mean Fixed Minimum Rent, Percentage Rent and Additional
Charges (as defined in Article XII) unless otherwise specifically noted.
(g) "RESORT" shall mean that hotel, casino, retail, restaurant and parking
complex known as the Venetian Casino Resort of which the Shopping Center is a
part. Notwithstanding the foregoing, Landlord expressly reserves the right, in
the exercise of its sole discretion, to change the name of the Resort at any
time during the Term of this Lease.
(h) "SHOPPING CENTER" shall mean those buildings and common areas
comprising the retail shopping center development known as "The Grand Canal
Shops" owned and/or ground leased by Landlord and located in Xxxxx County,
Nevada, all as shown on Exhibit "A" attached hereto and made a part hereof.
Notwithstanding the foregoing, Landlord expressly reserves the right, in the
exercise of its sole discretion, to change the name of the Shopping Center at
any time during the Term of this Lease.
(i) "TENANT'S PROPORTIONATE SHARE", shall mean a fraction, the numerator of
which is the "Premises GLA", as hereinafter defined (but excluding second level
space), and the denominator of which is the total number of square feet of
actually occupied gross leasable area (excluding second level space) on the main
level of the Shopping Center ("Occupied Center GLA") (except that the Occupied
Center GLA may not be less than ninety percent (90%) of aggregate Shopping
Center GLA (excluding second ------------------- level space)).
ARTICLE II EXHIBITS
Section 2.1 - Exhibits . The following exhibits are attached hereto or
otherwise incorporated herein by reference, and made a part of this Lease;
EXHIBIT "A" Site Plan of the Shopping Center - Attached
EXHIBIT "B" Premises - Attached
EXHIBIT "C" Chargebacks - Attached
EXHIBIT "GCS1.0" Tenant Handbook containing the scope of Landlord and
Tenant work and sign and design criteria - Not attached but incorporated herein
by reference.
ARTICLE III PREMISES
Section 3.1 - Premises . In consideration of the payment of all Rents and
the performance of the covenants as hereinafter set forth, Landlord demises unto
Tenant, and Tenant leases from Landlord, subject to all matters of record, for
the Term and upon the terms and conditions set forth in this Lease, the Premises
which is situated in the County of Xxxxx and State of Nevada and being the unit
set forth in Section 1.0(b).
Section 3.2 - Gross Leasable Area of the Premises . The gross leasable area
of the Premises or the "Premises GLA" shall be computed based on the "lease
lines" for the Premises, defined as follows: The lease line for common demising
walls between adjoining tenants shall be the center line of the common demising
wall. Along the storefront the lease line shall be the "designated line" ("DL")
separating the Premises from the Common Area, regardless of where Tenant's
storefront is actually built unless Tenant's storefront extends or "pops out"
past such DL in which event the storefront exterior shall be Tenant's lease
line. On non-common demising walls such as between the Premises and service
corridors, mechanical rooms, or the building exterior, the lease line shall be
the outside face of the demising wall. Any recesses required to accommodate the
door swing of the exit door for the Premises shall be considered part of the
Premises. No deductions shall be made for columns or bracing within the Premises
or along the demising walls but deductions shall be made for the areas occupied
by major vertical duct shafts.
Section 3.3 - Revisions to Premises GLA . The square footage set forth in
Section 1.0(c) has been determined pursuant to the provisions of Section 3.2 by
reference to either "CAD" or scaled architectural drawings of the Premises.
Landlord and Tenant acknowledge that irrespective of whether or not the Premises
shall have been constructed as of the date of this Lease, in the event that
Landlord's final as-built field or CAD measurements of the Premises after
Tenant's leasehold improvements have been constructed should disclose a
different square footage than the Premises GLA set forth in Section 1.0(c)
("Final Revised Premises GLA"), then Landlord agrees to notify Tenant in writing
of the Final Revised Premises GLA. Within thirty (30) days after the later of
(a) its receipt of such notice, or (b) Landlord's delivery of possession of the
Premises to Tenant, Tenant shall have the right to have its own measurement made
of the Premises and, in the event that there is a difference between Tenant's
measurement and Landlord's measurement (which shall be deemed to be the square
footage set forth in Section 1.0(c) unless Landlord notifies Tenant otherwise),
Tenant will so notify Landlord and the parties will consult in an effort to
resolve such difference. If the parties have not resolved such difference within
twenty (20) days after Tenant's notice to Landlord thereof, then each party
shall appoint an architect, both of whom shall appoint a third architect who
shall determine the Final Revised Premises GLA and whose determination thereof
shall be final and binding on the parties. The cost of such third architect
shall be borne equally by Landlord and Tenant. If Landlord notifies Tenant of
the Final Revised Premises GLA and Tenant either chooses not to have its own
measurement made or has its own measurement made and there is no difference from
Landlord's measurement, then Landlord's original notice to Tenant of the Final
Revised Premises GLA shall be deemed sufficient to amend the Premises GLA set
forth in Section 1.0(c), such amendment being deemed self-operative without the
necessity of further formal mutual acknowledgment or documentation between
Landlord and Tenant. When so finally determined, the Final Revised Premises GLA
(excluding second level space) shall be used as the numerator in computing
Tenant's Proportionate Share of Additional Charges and the Final Revised
Premises GLA shall be used in all computations of Fixed Minimum Rent since such
has been determined on a square foot (as opposed to a fixed rate) basis. If the
Fixed Minimum Rent should be so revised, Landlord will provide Tenant with
notice of such rent revision.
Section 3.4 - Landlord's Reservation . Landlord reserves to itself the roof
and exterior walls of the building containing the Premises and all space above
the ceiling within the Premises, to accommodate the Shopping Center's
structural, mechanical and electrical conduit piping, ducting or venting
requirements. Landlord and its agents further reserve the right on behalf of
themselves or an authorized utility company to run utility lines, pipes,
conduits or ductwork when necessary or desirable through the air space above
Tenant's ceiling, columns or within walls of the Premises and to maintain,
repair, alter, replace or remove the same in locations which will not materially
interfere with Tenant's use of the Premises.
Section 3.5 - Relocation.
(a) If at any time from time to time during the Term Landlord adds
additional buildings to the Shopping Center, expands any of the buildings
currently contained in the Shopping Center, or renovates or reconfigures any
part of the Shopping Center (other than minor reconfigurations involving only
the addition, removal or moving of demising walls in the Shopping Center), and
such addition, expansion, renovation or reconfiguration includes the Premises or
a portion thereof, then Landlord shall have a right to relocate the Premises
within the Shopping Center provided that the premises to which the Premises is
relocated shall contain approximately the same square footage as the original
Premises (of which not more than two thousand (2,000) square feet shall be on
the second level) and shall be exposed to reasonably equivalent pedestrian
traffic; provided, however, that Landlord shall not be entitled to so relocate
the Premises more than once every five (5) Lease Years. Landlord shall notify
Tenant of such relocation not less than sixty (60) days prior to the date
thereof. Landlord shall reconstruct on the relocated Premises improvements
substantially similar to those constructed at the original Premises. Landlord
shall pay the reasonable cost of moving and reinstalling Tenant's equipment,
fixtures, trade fixtures and personalty into the relocated Premises. As of the
latter of the date specified in Landlord's notice to Tenant or ten (10) days
after Landlord has notified Tenant that it has completed the improvements to be
constructed by Landlord on the relocated Premises, Tenant shall surrender the
original Premises, shall move to the new Premises, and the relocated Premises
shall be deemed the Premises hereunder as fully as if said relocated Premises
were originally described herein as the Premises. Tenant agrees that promptly,
on demand, it shall execute an amendment to Exhibit "B" designating the location
of the relocated Premises.
(b) Notwithstanding anything to the contrary in subsection (a) above, if
the relocated Premises is not reasonably acceptable to Tenant and Landlord
cannot or does not remedy Tenant's written concerns, then Tenant may terminate
this Lease and neither party shall have any further obligation hereunder (except
with respect to matters that arose before such termination). In connection with
such termination, Landlord shall pay to Tenant the unamortized (based on
straight line amortization as of the effective date of termination over a ten
(10) year period commencing with the Rent Commencement Date) costs of Tenant's
permanent leasehold improvements at the Premises.
Section 3.6 - Remodeling . If at any time from time to time during the Term
Landlord remodels all or any portion of the Shopping Center, and such remodeling
includes the Premises or a portion thereof, then Landlord shall have the right
to change the dimensions or reduce the size of the Premises; provided, however,
that if a reduction in size of the Premises would reduce the Premises to less
than ninety percent (90%) of its original size and if as a result thereof the
remaining portion of the Premises is not suitable for the purpose for which
Tenant has leased the Premises, Tenant may terminate this Lease by written
notice to Landlord given within thirty (30) days after Landlord notifies Tenant
of Landlord's intention to remodel; provided further, however, that such
termination shall not be effective if within thirty (30) days of Tenant's notice
thereof, Landlord notifies Tenant of its election to relocate Tenant pursuant to
Section 3.5 hereof. In the event of any remodeling pursuant to this Section 3.6,
Landlord shall repair any damage to the Premises caused thereby and, in the
event of any reduction in the area of the Premises, Fixed Minimum Rent shall be
appropriately (based on the manner the same is calculated under Section 1.0(g))
reduced. In connection with any such remodeling, Landlord may require Tenant to
cease conducting business from the Premises for a period not in excess of thirty
(30) days. Rent shall be abated during any such period that Landlord requires
Tenant to cease conducting business.
ARTICLE IV COMMON AREAS
Section 4.1 - Use .
(a) Landlord grants to Tenant and its agents, employees and customers, a
non-exclusive license, subject to the reasonable uniform rules and regulations
promulgated by Landlord, to use the Common Areas in common with other tenants
and occupants of the Shopping Center, their agents, employees and customers
during the Term, subject to the exclusive control and management thereof at all
times by Landlord and subject further to the rights of Landlord as set forth in
Section 4.2 herein.
(b) Landlord reserves to itself the right to construct, lease and/or
license kiosks, carts, and sales areas on any portion of the Common Areas
provided the same do not materially impair access to or visibility of the
Premises from the Common Areas adjacent to the Premises.
(c) Tenant shall not use the Common Areas for any other purpose than herein
designated.
Section 4.2 - Management and Operation of Common Areas . Landlord will use
reasonable efforts to operate and maintain or will cause to be operated and
maintained, the Common Areas in a first-class manner and in the best interest of
the Shopping Center. Landlord will have the right (1) to establish, modify and
enforce reasonable and uniform rules and regulations with respect to the Common
Areas for the general benefit of Landlord and all tenants of the Shopping
Center; (2) to enter into, modify and terminate easements and other agreements
pertaining to the use and maintenance of the parking areas and fees for use of
such parking areas and other Common Areas; (3) to provide for employee parking
(which parking may be located off the Resort property) and formulate reasonable
and uniform rules and regulations for the same; (4) without abatement of rent or
other charges, to close such portions of said parking areas or other common
areas to such extent as may, in the reasonable opinion of Landlord, be necessary
to prevent a dedication thereof or the accrual of any right to any person or to
the public therein or for any other reason in the best interest of Landlord and
all tenants; (5) without abatement of rent or other charges, to close
temporarily any or all portions of the Common Areas for repairs or refurbishing;
(6) to discourage non-customer parking; (7) to move, remove, relocate and/or
replace seats, trees, planters and other amenities commonly found in first-class
shopping centers provided the same do not materially impair access to or
visibility of the Premises from the Common Areas adjacent to the Premises; and
(8) to do such other acts in and to said areas and improvements as in the
exercise of good business management, and the maintenance of a first-class
shopping center, as Landlord, in the exercise of its reasonable business
judgment, shall deem to be advisable.
ARTICLE V CHANGES AND ADDITIONS TOSHOPPING CENTER SITE PLAN AND LEASING PLAN
Section 5.1 - Site Plan . The site plans attached hereto as Exhibits "A"
and "B", respectively, are for the sole purpose of showing the approximate
shape, design, proposed locations of buildings, tenant spaces and common areas
located within the Shopping Center.
Section 5.2 - Changes to Shopping Center Site Plan . Landlord reserves the
right at any time and from time to time (a) to make or permit changes or
revisions in the site plan for the Shopping Center including additions to,
subtractions from, rearrangements of, alterations of, modifications of or
supplements to the building areas, walkways, parking areas, driveways or other
Common Areas, (b) to construct other buildings or improvements in the Shopping
Center and to make alterations thereof or additions thereto and to build
additional stories on any such building or buildings and to build adjoining
same, and (c) to make or permit changes or revisions in the Shopping Center,
including additions thereto, and to convey portions of the Shopping Center to
others for the purpose of constructing thereon other buildings or improvements,
including additions thereto and alterations thereof; provided, however, that no
such changes, rearrangements or other construction shall permanently reduce the
number of parking spaces provided by Landlord below the number of parking spaces
required by law or materially impair access to or visibility of the Premises
from the Common Areas adjacent to the Premises.
ARTICLE VI IMPROVEMENTS
Section 6.1 - Landlord's Responsibilities .
(a) Landlord, at its own cost and expense, shall construct in accordance
with Exhibit "GCS1.0" that portion of the Premises required in Exhibit "GCS1.0"
to be constructed by Landlord at its sole cost and expense. Landlord shall
complete such work, other than details of construction which do not materially
interfere with the performance of the work to be performed by Tenant under
Section 6.2, prior to delivering possession of the Premises to Tenant.
(b) Landlord warrants that its work shall be delivered free and clear of
liens, encumbrances and violations or conditions which may constitute violations
of any laws, ordinances, or regulations relating to the use, occupancy and
construction of the Premises and the building containing the same.
(c) Landlord, at Tenant's sole cost and expense, shall construct in
accordance with Exhibit "GCS1.0" that portion of the Premises required in
Exhibit "C" to be constructed by Landlord at Tenant's sole cost and expense
("Chargebacks"); provided, however, that in no event shall Tenant be responsible
to pay more than Five Thousand Dollars ($5,000) in Chargebacks . Landlord may,
at its sole option, xxxx Tenant for the Chargebacks prior to the Rent
Commencement Date, and Tenant shall pay Landlord the Chargebacks no later than
thirty (30) days following receipt of Landlord's billing.
(d) By the earlier to occur of one hundred ten (110) days after Tenant
takes possession of the Premises or the date on which Tenant opens for business,
Tenant shall inform Landlord, in writing, of any items that were required to be
performed by Landlord which are incomplete or inadequate; otherwise Tenant shall
be deemed to have acknowledged that all work required to be performed in
connection with the Premises and any and all obligations to be performed by
Landlord on or before the opening of the Premises have been fully performed
(other than latent defects in such work that Tenant does not discover within
such period, for which Landlord shall be responsible for repairing and
correcting upon receipt of notice thereof from Tenant at any time during the
first Lease Year).
(e) If, on the date Landlord delivers possession of the Premises to Tenant,
the configuration of the Premises is not in substantial conformity with that
shown on the scaled drawings on which Tenant based its Landlord approved final
plans and specifications for Tenant's work, or the placement of columns,
equipment or utility facilities on the Premises required to be constructed or
installed by Landlord under this Section 6.1 is different than shown on such
scaled drawings, and, in either case, the degree of variation from such scaled
drawings reasonably requires Tenant to revise such plans and specifications,
then (i) Landlord shall reimburse Tenant for any additional architectural and
engineering costs incurred by Tenant to prepare such revised plans and
specifications, and (ii) the one hundred ten (110) day period referred to in
Section 1.0(f) shall be extended by the amount of time reasonably required (1)
to prepare such revised plans and specifications and resubmit the same to
Landlord for approval, (2) for Tenant to obtain Landlord's approval of such
revised plans and specifications, and (3) for Tenant to obtain new building
permits for Tenant's work, if required.
Section 6.2 - Tenant's Responsibilities . Tenant shall at its own expense
and in accordance with Exhibit "GCS1.0":
(a) Secure all permits and licenses necessary for the construction of any
of its installations and the prosecution of its work, and Tenant shall comply
with all laws and regulations relating to the conduct of said work.
(b) Construct the remainder of the Premises and installations therein and
construct the balance of the leasehold improvements necessary to enable Tenant
to occupy the Premises as shown in Tenant's plans and specifications as approved
by Landlord or Landlord's architect, all in a good and workmanlike manner and in
compliance with all insurance requirements and with all applicable permits,
authorizations, building regulations, zoning laws and all other government
rules, regulations, ordinances, statutes and laws, now or hereafter in effect
pertaining to the Premises or Tenant's use thereof. Notwithstanding any other
provision hereof, any installation to be made or work to be performed by Tenant
on or for the Premises prior to opening the Premises for business shall be first
approved in writing by Landlord prior to commencement of any work by Tenant.
Landlord's approval of any plans for Tenant's work shall, however, create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency or compliance with all Requirements, as hereinafter described
in Section 27.4.
(c) Obtain on behalf of itself, or any of its contractors or
subcontractors, all insurance protection required by Landlord in Exhibit
"GCS1.0".
(d) Install equipment and appliances in said construction and all trade
fixtures installed shall be new and first quality items.
(e) In the event Landlord performs any work at the request or on behalf of
Tenant which is Tenant's responsibility hereunder, Landlord shall xxxx Tenant
for the costs thereof and Tenant shall pay such costs to Landlord no later than
twenty (20) days following receipt of Landlord's billing.
(f) Landlord may require Tenant, at Tenant's sole cost and expense, to
furnish a bond or other security satisfactory to Landlord to assure diligent and
faithful performance of all work to be performed by Tenant.
The foregoing shall be completed by and Tenant shall open for business no
later than the Rent Commencement Date.
Section 6.3 - Tenant's Trade Fixtures. All trade fixtures, signs and
apparatus (as distinguished from leasehold improvements) owned by Tenant and
installed in the Premises ("Tenant Personal Property") shall remain the property
of Tenant and shall be removable at any time, including upon the expiration or
sooner termination of this Lease; provided Tenant shall not at such time be in
default of any terms or covenants of this Lease; and provided further that
Tenant shall promptly repair any damage to the Premises caused by the removal of
any Tenant Personal Property. If Tenant is in default, Landlord shall have the
benefit of any applicable lien on Tenant Personal Property located in or on the
Premises as may be permitted under the laws of the State of Nevada, and in the
event such lien is asserted by Landlord in accordance with applicable law,
Tenant shall not remove or permit the removal of such Tenant Personal Property
until the lien has been removed and all defaults have been cured. Any Tenant
Personal Property not removed from the Premises by Tenant upon the expiration or
sooner termination of this Lease may be construed by Landlord as abandoned by
Tenant. Alternatively, Landlord may order Tenant to remove such Tenant Personal
Property or have it removed at Tenant's expense. Tenant shall have the right,
without Landlord's consent, to finance any Tenant Personal Property and to grant
security interests therein to secure such financing. Upon request, Landlord
shall subordinate any Landlord's lien on any Tenant Personal Property under this
Section 6.3 to any such security interest, and Landlord agrees, upon request, to
confirm such subordination in writing in a commercially reasonable form
requested by Tenant and/or Tenant's lender, within fifteen (15) days after
Landlord's receipt of such form.
Section 6.4 - Construction Lien . Nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied by inference or otherwise, to any contractor,
sub-contractor, laborer or materialman for the specific performance of any labor
or the furnishing of any materials or equipment for any specific improvement,
alteration to or repair of the Premises or any part thereof, nor as giving
Tenant any right, power or authority to contract for or permit the rendering of
any services or the furnishing of any materials on behalf of Landlord that would
give rise to the filing of any lien against the Premises, Shopping Center or the
Resort.
Section 6.5 - Labor Cooperation . Tenant shall perform or cause Tenant's
contractors to perform all work in the making and/or installation of any
repairs, alterations or improvements in a manner so as to avoid any labor
dispute that causes or is likely to cause stoppage or impairment of work or
delivery services or any other services in the Shopping Center. In the event
there shall be any such stoppage or impairment as the result of any such labor
dispute or potential labor dispute, Tenant shall immediately undertake such
action as may be necessary to eliminate such dispute or potential dispute,
including, but not limited to (i) removing all disputants from the job site
until such time as the labor dispute no longer exists, (ii) seeking an
injunction in the event of a breach of contract between Tenant and any of
Tenant's contractors, and (iii) filing appropriate unfair labor practice charges
in the event of a union jurisdictional dispute. Landlord may require Tenant to
use recognized union labor in the construction of Tenant's improvements at the
Premises.
ARTICLE VII PLANS
Section 7.1 - Submission of Plans .
(a) Tenant shall prepare, at its sole cost and expense, and in full
compliance with the provisions of Exhibit "GCS1.0", complete plans and
specifications for all of Tenant's work, including store front design, and shall
submit such plans and specifications to Landlord or Landlord's designated
representative for approval prior to commencement of any work. No material
changes to said plans shall be made after such approval by Landlord without
Landlord's prior written consent. Landlord's approval of any plans for Tenant's
work shall create no responsibility or liability on the part of Landlord for
their completeness, design sufficiency or compliance with all Requirements.
(b) Tenant shall be required to submit its plans and specifications to
Landlord in a timely manner so that Tenant's construction in the Premises shall
be completed on or before the Rent Commencement Date. In the event Tenant's
plans are not submitted in a timely fashion as required above, due to reasons
within Tenant's or its architect's control, Landlord reserves the right, in
addition to any other rights it may have hereunder, to require Tenant to
commence the payment of Rents as of the Rent Commencement Date notwithstanding
the fact that Tenant may not be open for business on such date.
ARTICLE VIII USE
Section 8.1 - Use . Tenant agrees to: (i) operate its business in the
Premises under the trade name specified in Section 1.0(s) (or such other
tradename approved in writing by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned) and (ii) use the Premises solely
for the permitted use specified in Section 1.0(t) and for no other business or
purpose. Tenant further agrees not to conduct catalog sales in or from the
Premises, except merchandise Tenant is permitted to sell "over-the-counter"
consistent with its permitted use. Tenant recognizes that the specific limited
use prescribed herein is a material consideration to Landlord so that the
Shopping Center will maintain an appropriate tenant mix so as to produce the
maximum Gross Revenue possible for all tenants and that the continued operation
of a first-class shopping center development will be assured. Notwithstanding
the foregoing, Tenant's specific limited use hereunder shall not be construed to
imply that Tenant has an exclusive right to conduct the use permitted by Section
1.0(t). Landlord, in its sole discretion, may permit other tenants or occupants
of the Shopping Center to operate the same or similar use. If Tenant's business
in the Premises is to be conducted pursuant to a franchise agreement, the
existence and continuation of such franchise agreement is a material
consideration to Landlord in entering into this Lease and if such franchise
agreement is terminated, Landlord shall be entitled to treat such event as an
event of default and elect any of the remedies provided in Article XXIV.
Section 8.2 - Tenant's Covenant to Operate . Tenant agrees to complete
Tenant's work and open the Premises for business to the public adequately
fixtured, stocked and staffed on the Rent Commencement Date, and, thereafter
throughout the Term of this Lease, to continuously operate in one hundred
percent (100%) of the space within the Premises the business prescribed in
Section 1.0(t), Mondays through Sundays during such hours as may be reasonably
determined by Landlord for the operation of the Shopping Center. Tenant agrees
it will not open earlier or close later than such hours without Landlord's prior
consent. Notwithstanding anything to the contrary contained herein, Tenant shall
be permitted to close the Premises for up to two (2) days per Lease Year for the
purpose of taking inventory, provided such days are approved in advance and in
writing by Landlord, which approval Landlord shall not unreasonably withhold. In
no event shall Tenant be permitted to close the Premises on any day that banks
in Nevada are required or permitted, under the state or federal law, to be
closed for business ("Holiday"), or within three (3) days of any Holiday.
Section 8.3 - Prohibitions on Use .
(a) Tenant shall not use or permit or suffer the Premises, or any part
thereof, to be used by anyone else or for any other business or purpose than
that specifically defined and permitted by this Article and further provided
that Tenant shall not divert any portion of the Premises GLA for any other use
other than the use described above.
(b) Tenant shall not permit the Premises to be used in violation of any
laws or local ordinances or any way which in the reasonable judgment of Landlord
will injure the reputation of, be a nuisance, annoyance, or do damage to the
other tenants of the Shopping Center or Landlord, including without limitation,
the sale of patently offensive material and merchandise and the use of audio
devices, flashing lights, machinery and equipment creating noise or odors, or
the committing of acts, which will disturb, impair or interfere with the use and
enjoyment by the other tenants of their respective premises within the Shopping
Center.
(c) Tenant agrees not to use or allow the Premises to be used for any
auction, fire, bankruptcy or "going out of business" sales therein unless
ordered by a court of competent jurisdiction after reasonable notice to Landlord
and an opportunity by Landlord to be heard.
Section 8.4 - Manner of Operation of Business .
(a) Tenant agrees that the above business is to be conducted in a reputable
manner, in keeping with good practices as established in the trade. Tenant shall
keep upon the Premises an adequate staff of employees and an adequate stock of
merchandise during business hours throughout the Term of this Lease so as to
insure a maximum profitable volume of business in and from the Premises.
(b) Subject to Section 15.1 of this Lease, Tenant agrees to assume full
responsibility and at its own cost to keep and maintain the Premises neat,
clean, in proper repair and decor, and free from waste and offensive odors, and
in an orderly and sanitary condition, free of vermin, rodents, bugs and other
pests.
(c) Landlord and its agents shall have the right, but not the duty, to
inspect the Premises at any time to determine whether Tenant is complying with
the terms of this Section 8.4. If Tenant is not in compliance with this Section
8.4, Landlord shall have the right to immediately enter upon the Premises to
remedy said noncompliance at Tenant's expense. Landlord shall use reasonable
efforts to minimize interference with Tenant's business, but shall not be liable
for any interference caused thereby. Section 8.5 - Privileged License . Tenant
acknowledges that Landlord and affiliates of Landlord are businesses that are or
may be subject to and exist because of privileged licenses issued by
governmental authorities relating to casino gaming ("Gaming Authorities"). If a
corporation, Tenant shall disclose the names of all officers and directors of
Tenant, and unless a publicly traded corporation on a national stock exchange,
Tenant shall disclose to Landlord all ownership interests in Tenant and all
lenders or sources of financing. If requested to do so by Landlord, Tenant shall
obtain any license, qualification, clearance or the like which shall be
requested or required of Tenant by Landlord, Gaming Authorities or any
regulatory authority having jurisdiction over Landlord or any affiliate of
Landlord. If Tenant fails to satisfy such requirement or if Landlord or any
affiliate of Landlord is directed to cease business with Tenant by any such
authority, or if Landlord shall in good faith determine, in Landlord's sole and
exclusive judgment, that Tenant, or any of its officers, directors, employees,
agents, designees or representatives, or partner, owner, member, or shareholder,
or any lender or financial participant (a) is or might be engaged in, or is
about to be engaged in, any activity or activities, or (b) was or is involved in
any relationship, either of which could or does jeopardize Landlord's business,
reputation or such licenses, or those of its affiliates, or if any such license
is threatened to be, or is, denied, curtailed, suspended or revoked, then Tenant
shall immediately (i) terminate any relationship with the individual or entity
which is the source of the problem, or (ii) cease the activity creating the
problem to Landlord's satisfaction. In the event Tenant does not comply with
item (i) or (ii) above, then Landlord (x) may require Tenant to specifically
perform such obligation (the parties recognizing that damages or other remedies
would be inadequate under the circumstances) or (y) may terminate this Lease
without liability to either party; provided, however, if any matter described
herein is reasonably susceptible to cure, Tenant shall have a reasonable time
within which to effect such cure (but in no event longer than the time available
to fully comply with any requirement imposed by law, rule, regulation or the
Gaming Authorities) and Landlord shall not have the right to terminate this
Lease during such cure period.
Section 8.6 - Vendor Agreements . Tenant acknowledges that Landlord has entered
into or may in the future enter into agreements with vendors or service
providers (hereinafter "Common Vendors") to provide services to the Resort and
its tenants for the purposes of achieving uniformity of services, favorable
pricing and/or limiting the number of service providers working in or making
deliveries to the Resort. Tenant agrees to contract with such Common Vendors for
services and to abide by the terms of Landlord's agreements with such Common
Vendors; provided that amounts which are to be paid to such Common Vendors, and
the quality of product and level of service to be provided by such Common
Vendors, shall at all times be competitive in the Las Vegas marketplace.
ARTICLE IX TERM
Section 9.1 - Term . The Term of this Lease shall commence on the Rent
Commencement Date (see Sections 1.0(f) and 10.1) and the Term, unless the Lease
should be terminated earlier, shall expire at midnight on the "Term Expiration
Date" which shall be at the end of the number of Lease Years stated in Section
1.0(d).
Section 9.2 - Commencement Date Agreement . At any time following full
execution of this Lease, Landlord and Tenant may, upon the request of either
party, execute a supplemental agreement setting forth the commencement and
termination dates of the Term of this Lease.
Section 9.3 - Holding Over . If, at the expiration of the Term of this
Lease, Tenant continues to occupy the Premises with or without Landlord's
consent, its tenancy shall become month-to-month terminable by either party on
thirty (30) days prior written notice. Tenant shall be subject to all the
conditions of this Lease excepting the Term thereof and Tenant's obligation to
pay hold-over rent equal to one hundred fifty percent (150%) of the monthly
Fixed Minimum Rent payable by Tenant immediately prior to expiration of the
Term, and Tenant shall be further subject to any changes to this Lease which
Landlord has given Tenant, in writing, during any thirty (30) day period for the
following thirty (30) day period. Notwithstanding anything contained herein to
the contrary, nothing contained in this subparagraph shall be deemed or
construed to give Tenant the right to hold over. Tenant shall not be permitted
to hold over if Landlord gives Tenant notice before the expiration of the Term
of this Lease that Tenant may not hold over.
Section 9.4 - Expiration of the Term of the Lease .
(a) This Lease shall expire at the end of the Term thereof without the
necessity of any notice from either Landlord or Tenant to terminate the same,
and subject to Section 9.3 hereof, Tenant hereby waives notice to vacate or quit
the Premises and agrees that Landlord shall be entitled to the benefit of all
provisions under this Lease respecting the summary recovery of possession of the
Premises from Tenant holding over to the same extent as if statutory notice had
been given. However, if Tenant should vacate prior to the expiration of the Term
of the Lease, Tenant will nevertheless be liable for all Rents due and owing up
to the expiration of the Term.
(b) For a period of six (6) months prior to the expiration of the Term,
upon reasonable prior notice to Tenant, Landlord shall have the right and may
show the Premises and all parts thereof to prospective tenants during normal
business hours.
(c) Tenant shall deliver and surrender to Landlord possession of the
Premises upon the expiration or earlier termination of this Lease, in as good
condition and repair as the same shall be at the commencement of said term
except ordinary wear and tear and casualty loss.
(d) Tenant shall have no right to quit the Premises, cease to operate its
business, cancel or terminate this Lease except as such right is expressly
granted to Tenant herein.
Section 9.5 - Renewal of Term . Tenant is hereby granted an option to
extend the Term of this Lease, hereinafter referred to as the "Original Lease",
for the additional consecutive periods set forth in Section 1.0(d)(ii), if any,
provided that Tenant shall notify Landlord, in writing, no less than nine (9)
months prior to the commencement of any such renewal term of Tenant's intention
to exercise such Option, and provided further that Tenant at the time of notice
of renewal, as well as the commencement date of the renewal term, there is no
uncured Event of Default. The terms and conditions of the renewal term shall be
the same as the terms and conditions of the Original Lease, excepting for the
following modifications:
(a) Tenant shall have no further right of renewal after the expiration of
the last renewal term.
(b) The Fixed Minimum Rent as payable during the renewal periods, shall be
calculated in accordance with Section 1.0(g).
(c) The Percentage Rent as payable during the renewal periods, shall be
calculated in accordance with Section 1.0(h).
ARTICLE X RENT COMMENCEMENT DATE
Section 10.1 - Rent Commencement Date .
(a) As used in this Lease, the term "Rent Commencement Date" shall mean the
later of the dates specified in Section 1.0(f); provided, however, that in no
event shall the Rent Commencement Date be later than the date Tenant opens for
business. ----------------------
(b) Should the Rent Commencement Date occur on a day other than the first
day of a calendar month, Tenant shall be liable for Fixed Minimum Rent and
Additional Charges due for said previous partial month on a prorated basis based
upon a thirty (30) day month.
Section 10.2 - Failure of Delivery of Premises to Tenant . If Landlord
shall fail to deliver possession of the Premises to Tenant by December 31, 1999
for any cause within Landlord's reasonable control, Tenant shall have the right
to terminate this Lease upon written notice to Landlord given at any time on or
before January 31, 2000 (provided Landlord has not theretofore delivered
possession of the Premises to Tenant), and neither party shall have any further
obligation hereunder (except with respect to matters that arose before such
termination).
Section 10.3 - Tenant's Failure to be Open by the Rent Commencement Date .
Notwithstanding any rights or remedies of Landlord set forth in Article XXIV, in
the event Tenant has not opened by the Rent Commencement Date except for reasons
outside Tenant's control, Landlord shall have the right to require Tenant to pay
to Landlord as liquidated damages and not as a penalty, the sum of One Hundred
Dollars ($100.00) for each day beyond the Rent Commencement Date that Tenant is
late in opening the Premises for business, which payment is intended to
compensate Landlord for actual and substantial losses that Landlord may suffer.
Nothing contained in this Section 10.3 shall be construed to waive any rights
and remedies Landlord may have against Tenant, nor affect Tenant's obligation to
commence payment of Fixed Minimum Rent and Additional Charges on the Rent
Commencement Date. Landlord may offset any amounts payable by Tenant hereunder
against any amounts Landlord may owe Tenant.
ARTICLE XI RENT
Section 11.1 - Fixed Minimum Rent .
(a) Tenant hereby covenants and agrees to pay to Landlord's authorized
agent, without deduction or set-off and without demand, at the address set forth
in Section 1.0(v) above or such other place as Landlord may, from time to time,
designate in writing, as Fixed Minimum Rent for the Premises, the amount(s) set
forth in Section 1.0(g), said amount(s) to be due and payable in monthly
installments, in advance, on the Rent Commencement Date and on the first day of
each and every calendar month thereafter. Tenant agrees at no time to pay the
monthly Fixed Minimum Rent more than one (1) month in advance of its due date.
(b) Notwithstanding anything in this Lease to the contrary, in the event
Tenant fails to pay any Rents or any other sum due and owing Landlord within
five (5) days following the due date of said Rents, then Tenant shall pay a late
charge of the greater of (i) ten percent (10%) of the amount due and (ii) two
percent (2%) per month of the monthly charges due from the due date of any
installment of any Rents.
(c) Should any governmental taxing authority acting under any present or
future law, ordinance, or regulation, levy, assess, or impose a tax, excise
and/or assessment (other than an income or franchise tax upon Landlord's net
income) upon Landlord with respect to Rents payable by Tenant to Landlord,
either by way of substitution for or in addition to any existing tax on land and
buildings or otherwise, Tenant shall be responsible for and shall pay such tax,
excise and/or assessment, or shall reimburse Landlord for the amount thereof, as
the case may be.
(d) Notwithstanding any other provision hereof, Tenant shall not be
required to pay Fixed Minimum Rent for any period of sixty (60) consecutive days
or more that less than seventy percent (70%) of the gross leasable area
(excluding second level space) on the main level of the Shopping Center is
occupied, open for business and continuously operating.
Section 11.2 - Percentage Rent .
(a) Amount. In addition to Tenant's Fixed Minimum Rent, Tenant covenants
and agrees to pay to Landlord, without deduction or set-off, Percentage Rent for
each calendar year during the term hereof in the amount(s) set forth in Section
1.0(h), during each month of such calendar year during or after which the
Percentage Rent breakpoints set forth in Section 1.0(h) have been reached.
(b) Payment.
(i) The Percentage Rent due for each calendar month shall be payable by no
later than the fifteenth (15th) day of the immediately following calendar month.
Said payments of Percentage Rent shall be made concurrently with the submission
of Tenant's written statement of monthly Gross Revenue to Landlord as
hereinafter provided.
(ii) Upon submission of Tenant's certified statement of Gross Revenue at
the close of each calendar year, as provided in Section 11.5 herein, adjustments
of amounts due for Percentage Rent shall be made to the respective parties.
Overpayments of Percentage Rent shall be credited against the next installment
of Percentage Rent due (or, if at the end of the Term, Landlord shall pay such
amount to Tenant within thirty (30) days after Tenant has delivered its
certified statement of Gross Revenues to Landlord). Underpayments of Percentage
Rent shall be paid to Landlord within thirty (30) days after Tenant has
delivered its certified statement of Gross Revenues to Landlord.
(iii) Notwithstanding the provision for the payment of Percentage Rent,
Landlord shall not, in any event, be deemed to be a partner or associate of
Tenant in the conduct of its business. The relationship of the parties hereto
shall, at all times, be solely that of Landlord and Tenant.
Section 11.3 - Gross Revenue . The term "Gross Revenue" wherever used
herein shall be defined to mean the total amount of all sales of merchandise
and/or services and all other receipts of all business conducted in, at, or from
any part of the Premises, whether the same be for cash, barter, credit, check,
charge account, gift, and merchandise certificates purchased, or other
disposition of value regardless of collection, in the event of sale upon credit
or charge account, and whether made by Tenant, sub-tenants, concessionaires,
licensees, or assignees of Tenant. The value of each sale shall be the actual
total sales price charged the customer, and shall be reported in full in the
month that the transaction occurs irrespective of when, or if, payment is
received. Gross Revenue includes orders or sales which originate in, at, or from
the Premises, whether delivery or performance is made from the Premises or from
another place, and orders and sales of goods and services delivered and
performed from the Premises as a result of orders taken elsewhere; orders or
sales mailed, telephoned, or telegraphed, which are received at or filled from
the Premises; all sales and revenue accruing by means of mechanical,
self-operated, or automatic vending devices on the Premises. There shall be no
deduction or exclusion from Gross Revenue except as specifically permitted
hereafter. Any deposit not refunded shall be included in Gross Revenue.
Section 11.4 - Exclusion from Gross Revenue . Notwithstanding the
foregoing, Gross Revenue shall not include:
(a) Merchandise returned in the amount of cash refunded, credit given, or
discounts and allowance granted or exchanges made, provided that the sale price
of such items was originally included in Gross Revenue.
(b) The amount of any sales, use or gross receipts tax, or excise tax,
imposed by any governmental authority directly on sales and collected from the
customers, providing the amount of such tax is separately recorded.
(c) The exchange of merchandise between stores of Tenant, when such
exchanges are made solely for the operation of Tenant's business and not for the
purpose of consummating a sale which has been made at, in or from the Premises.
(d) Merchandise returned for credit to shippers, jobbers, wholesalers or
manufacturers.
(e) Revenue from sale of trade fixtures after use in the Premises and sums
or credits received in settlement of claims for loss of or damage to
merchandise.
(f) Revenue from vending machines for Tenant's employee use only.
(g) Shipping, delivery and mailing charges.
(h) Interest, service or sales carrying charges, or other charges, however
denominated, paid by customers for the extension of credit on sales.
(i) Sales to employees at a discount, not to exceed two percent (2%) of
Gross Revenues in any single calendar year.
(j) Charges, fees and discounts paid by Tenant to credit card issuers on
account of the use of credit cards by Tenant's customers in the Premises.
Section 11.5 - Reporting .
(a) Tenant shall submit to Landlord, on or before the fifteenth (15th) day
of each month of each Lease Year, commencing in the second month of the first
Lease Year, a written statement signed by Tenant showing Tenant's Gross Revenue,
as herein defined, for the preceding calendar month.
(b) On or before forty-five (45) days following the close of each calendar
year (or the expiration of the Term), Tenant shall furnish to Landlord a
statement certified by either, at Tenant's option, an officer of Tenant or a
certified public accountant employed by Tenant, if any, of the Gross Revenue
made by Tenant from the Premises during the preceding calendar year (or portion
thereof).
(c) For the purpose of ascertaining the amount of reportable sales and
revenue, Tenant agrees to record each and every sale at the time of the
transaction on either a cash register having a sealed, continuous, cash register
tape with cumulative totals, which numbers, records, and duplicates each
transaction entered into the register, (in any event such cash register must
have a non-resettable grand total) or on serially prenumbered sales slips or on
a computer system that produces and maintains comparable records. In the event
Tenant chooses to record each sale by using a cash register, Tenant agrees that
the continuous, cash register tape will be sealed or locked in such a manner
that it is not accessible to the person operating the cash register. If Tenant
chooses to record each sale on individual sales slips, Tenant agrees that said
sales slips (including those canceled, voided, or not used) will be retained in
numerical sequence for the period set forth in Section 11.6 herein. If Tenant
chooses to record each sale on a computer system, Tenant agrees that such
computer system will be set up so that such records cannot be changed by the
person operating the computer system.
(d) If Tenant shall fail to prepare and deliver any statement of Gross
Revenue in a timely manner as required herein, and such failure continues for
thirty (30) days after Landlord notifies Tenant thereof, Landlord may do any or
all of the following: (i) elect to treat Tenant's failure to report as a default
of this Lease; (ii) elect to make an audit of all books and records of Tenant
which in any way pertain to or show Gross Revenue and to prepare the statement
or statements which Tenant has failed to prepare and deliver; or (iii) impose a
late/non-reporting fee of One Hundred Dollars ($100.00) for each such failure by
Tenant. The statement or statements so prepared shall be conclusive on Tenant,
and Tenant shall pay on demand all expenses of such audit and of the preparation
of any such statements and all sums as may be shown by such audit to be due as
Percentage Rent.
(e) All such statements and reports shall be kept in confidence by Landlord
except in connection with a sale, mortgage, administrative or judicial
proceedings.
(f) Landlord may, in its sole and absolute discretion, provide a program
for the purpose of collecting daily sales information directly from Tenant via
Tenant's designated representatives at the Premises. The program may be in the
form of automated, computerized telecommunication. The costs and expenses in
connection with the operation of the program will be paid for either by Landlord
or by proceeds from the Marketing Fund. The information collected may be
utilized by Landlord for evaluating and responding to market trends and such
other matters as Landlord finds appropriate.
Section 11.6 - Books and Records .
(a) Tenant agrees to keep on the Premises, or at its principal office,
accurate books and records (as more specifically identified below) of all
business conducted at the Premises in accordance with generally accepted
accounting practices consistently applied, and said records shall be open and
available for examination at the Premises at all reasonable times to Landlord,
or Landlord's representatives (up to twice per Lease Year), upon reasonable
notice to Tenant, for the purpose of ascertaining or verifying the Gross
Revenue. All records shall be retained by Tenant for examination by Landlord for
a period of at least two (2) years following the end of the calendar year for
which said records apply.
(b) Tenant further agrees that for the purposes hereinbefore recited,
Tenant shall prepare, preserve and maintain for each calendar year, the
following documents, books, accounts and records:
(1) Daily cash register summary tapes (normally referred to as "Z Tapes")
and sealed, continuous, cash register tapes or prenumbered sales slips or
comparable computer records, maintained as recited herein;
(2) A single, separate bank account into which all receipts of business and
other revenue from operations on or from the Premises are deposited;
(3) All bank statements detailing transactions in or through any business
bank account;
(4) Daily or weekly sales recapitulations;
(5) A sales journal;
(6) A general ledger or a summary record of all cash receipts and
disbursements from operations on or from the Premises;
(7) Copies of all sales or use tax returns filed with any governmental
authority which reflect in any manner sales, income or revenue generated in or
from the Premises; and
(8) Such other records or accounts as Landlord may reasonably require in
order to ascertain, document, or substantiate reportable Gross Revenue as
defined herein.
(c) If upon inspection or examination of Tenant's available books and
records of account, Landlord determines that Tenant has failed to maintain,
preserve, or retain the above-recited documents, books, and records of account
in the manner detailed herein, Landlord shall give Tenant sixty (60) days to
cure said deficiencies. Further, if Tenant is found to be deficient in
maintaining any of the above-recited documents, books or records of account,
Tenant shall reimburse Landlord for reasonable expenses incurred by Landlord in
determining said deficiencies, including, but not limited to, any audit or
examination fees incurred by Landlord.
If after receiving the aforesaid notice, and upon expiration of the sixty
(60) day time period specified herein, Tenant fails to cure the noted
deficiencies, Landlord may, at its option, either grant Tenant additional time
to cure the deficiencies, hold Tenant in default of the Lease, or at Tenant's
expense, and for its benefit, retain a good and reputable independent accounting
or bookkeeping firm to prepare and maintain the above-recited documents, books
and records of accounts. If Landlord elects the latter option, Tenant agrees and
covenants that the representative or representatives of said accounting or
bookkeeping firm will have full right of entry and access to the Premises and
existing financial records, and full cooperation by Tenant, for the purpose of
establishing and maintaining the documents, records and books of account recited
hereinabove. Any expenses incurred by Landlord in furtherance of its rights
hereunder will be considered additional rent for the Premises due and payable by
Tenant with the next due installment of Rents.
(d) In the event an examination of the records of Tenant to verify said
Gross Revenue shall disclose a deficiency in excess of three percent (3%) of the
Gross Revenue reported for any calendar year where Percentage Rent is due
Landlord, (1) Tenant agrees to pay to Landlord the reasonable costs and expenses
of such audit, and (2) any additional Percentage Rent found due and owing as a
result of said audit shall be immediately paid by Tenant to Landlord upon
demand. If an examination by Landlord or its representative discloses that
Tenant has overreported Gross Revenue and that, as a result of said
overreporting, Tenant has overpaid Percentage Rent, Landlord shall give Tenant
credit against the next due installment of Rents due and owing by Tenant for the
overpaid Percentage Rent (or, if at the end of the Term, Landlord shall pay such
amount to Tenant within thirty (30) days after Tenant has delivered its
certified statement of Gross Revenues to Landlord).
ARTICLE XII ADDITIONAL CHARGES
Section 12.1 - Status of Charges . As part of the Rents provided for by
this Lease, Tenant agrees to pay to Landlord, as hereinafter provided, the
"Additional Charges" as described in this Article and Article XIII for the
purposes as hereinafter set forth. Such Additional Charges shall be subject to
all provisions of this Lease and shall be deemed included as part of Rents due
and owing hereunder.
Section 12.2 - Common Area Maintenance Costs .
(a) The term "Common Area Maintenance ('CAM') Cost" means the total of all
items of cost related to maintaining, managing, operating, policing, securing,
repairing, replacing, enhancing, insuring and protecting the Common Area,
including but not limited to: all cost of maintaining, painting and upgrading
facilities, fixtures and improvements, including but not limited to, parking
decks or structures, cleaning, removal of trash, dirt and debris, snow and ice
removal, sweeping and janitorial services; all such maintenance and construction
work as shall be required to preserve and maintain the utility and appearance of
the Common Area; lighting of outdoor areas, mall and service corridors;
maintenance, repair and replacement of roof/roofs, and sprinkler systems; cost
of plantings, landscaping and mall amenities, interior and exterior landscaping
and supplies incidental thereto to include all seasonal and similar decorations
plus the cost of all utilities utilized in connection therewith; costs of
maintenance and repair of the system which heats, ventilates and air conditions
the Enclosed Mall and Landlord's energy costs incurred in connection therewith;
directional signs, shopping center signs, bumpers and other markers;
installation, maintenance and repair of any security systems, fire protection
systems, lighting and utility systems, and storm drainage systems; installation,
maintenance, repair and replacement of disposal plants, lift stations, and
retention ponds or basins; costs and expenses of payroll, payroll taxes and
employee benefits of all management personnel, including without limitation
managers, security and maintenance people, secretaries and bookkeepers; costs
and expenses of operating, maintaining, repairing and replacing machinery and
equipment used in the operation and maintenance of the Common Areas, and the
personal property taxes and other charges incurred in connection with such
machinery and equipment; management fees, costs and expenses of purchasing and
maintaining in full force insurance (including, without limitation, liability
insurance for personal injury, death and property damage, rent insurance,
insurance against fire, extended coverage, theft or other casualties, all risk,
difference in conditions, sprinkler, malicious mischief, vandalism, earthquake,
flood, worker's compensation insurance covering personnel, fidelity bonds for
personnel, insurance against liability for defamation and claims of false arrest
occurring on or about the Common Areas, and plate glass insurance), costs and
expenses enforcing any operating agreements pertaining to the Common Areas or
any portions thereof, and any easement agreement, or reservation or any
arbitration or judicial actions undertaken with respect to the same; costs and
expense of policing/security, including uniforms, equipment and all supplies;
all costs relating to separate employee parking areas, including but not limited
to the cost of any shuttle services Landlord may provide and the cost of
transportation services, depreciation of equipment and equipment buildings used
in operating, maintaining and replacing the Common Areas and/or rent paid for
the leasing of any such equipment or buildings; cost and expense for the rental
of music program service and loudspeaker systems including furnishing
electricity; services furnished by Landlord for nonexclusive use of all tenants
on a non-profit basis including parcel pick up and delivery services and shuttle
bus service; the cost of pest extermination; the cost of improvements not part
of initial Shopping Center construction except as otherwise provided below in
this Section 12.2(a); and an administration cost in an amount not more than
fifteen percent (15%) of the total cost and expense of all the foregoing.
Notwithstanding anything to the contrary in the definition of "CAM Costs",
CAM Costs shall not include: (i) the cost of any repairs made by Landlord
because of the total or partial destruction of the Shopping Center from casualty
or condemnation, (ii) the costs of capital improvements except for those (A)
made to reduce CAM Costs (amortized at an annual rate reasonably calculated to
equal the amount of CAM Costs to be saved in each calendar year throughout the
Lease Term (as determined by Landlord at the time Landlord elected to proceed
with the capital improvements to reduce the CAM Costs)), together with interest
at Landlord's reasonable estimate of its actual cost of funds, or (B) made to
comply with laws, statutes or insurance requirements not in force at the time of
the initial construction of the Shopping Center, or undertaken for the
protection of the health and safety of occupants and customers of the Shopping
Center (which shall be amortized, including interest on the unamortized cost at
Landlord's actual cost of funds, over its useful life as reasonably determined
by Landlord), (iii) the cost of removing Hazardous Materials from the Shopping
Center, or (iv) costs for which Landlord is reimbursed by insurance proceeds or
warranties.
(b) Tenant's Proportionate Share of the CAM Costs shall be paid by Tenant
to Landlord in equal monthly installments, in advance, on the first day of each
calendar month during the Term of this Lease in an amount equal to one-twelfth
(1/12) of Tenant's Proportionate Share of the CAM Costs as reasonably estimated
by Landlord for the fiscal year. The amount due for any partial fiscal year
shall be prorated accordingly.
(c) Within ninety (90) days after the end of Landlord's fiscal year
(January 1 - December 31), Landlord shall furnish Tenant with a written
statement in reasonable detail of the actual CAM Costs and the amount and manner
of calculation of Tenant's Proportionate Share thereof for the preceding fiscal
year. Landlord reserves the right, however, to change its fiscal year at any
time during the Term of this Lease upon reasonable prior notice to Tenant. If
Tenant's Proportionate Share of the actual CAM Costs exceed the aggregate of
Tenant's monthly payments, Tenant shall pay to Landlord any deficiency due
within fifteen (15) days after receipt of said statement by Landlord. If
Tenant's monthly payments have exceeded Tenant's Proportionate Share of the
actual CAM Costs, any surplus paid by Tenant shall be credited against the next
ensuing installment of Rents until such surplus is exhausted, unless such
surplus has occurred during Tenant's last year prior to expiration of the Lease,
in which event Landlord shall refund such excess to Tenant within thirty (30)
days after determination of such surplus has been made. Failure of Landlord to
provide the statement called for hereunder within the time prescribed shall not
relieve Tenant of its obligations hereunder.
The obligations of Landlord and Tenant to make the foregoing adjustment
shall survive the expiration or earlier termination of this Lease.
(d) Landlord shall keep at its principal offices, accurate books and
records of the CAM Costs in accordance with generally accepted accounting
practices consistently applied, and said records shall be open and available for
examination at all reasonable times to Tenant, or Tenant representatives, upon
reasonable notice to Landlord and not more than once per calendar year, for the
purpose of ascertaining or verifying the CAM Cost. The results of any such audit
shall be kept confidential by Tenant except that the same may be disclosed (i)
to Tenant's professional advisors and consultants, (ii) to the extent required
by law, or (iii) in connection with any judicial, administrative or other
dispute resolution proceeding to enforce any right of Tenant hereunder . All
records shall be retained by Landlord for examination by Tenant for a period of
at least two (2) years following the end of the fiscal year for which the
records apply.
(e) In the event an examination of the records of Landlord to verify CAM
Cost shall disclose that actual CAM Costs were more than three percent (3%) less
than the CAM Costs reported for any calendar year, Landlord agrees to pay to
Tenant the reasonable costs and expenses of such audit. Any overpayment of CAM
Cost shall be reimbursed to Tenant by Landlord and any underpayment shall be
paid to Landlord by Tenant within thirty (30) days after the results of the
audit.
Section 12.3 - Real Estate Taxes .
(a) (i) The term "real estate taxes" shall mean all taxes, assessments,
charges, levies, fees and other governmental charges, general and special,
ordinary and extraordinary, of any kind and nature whatsoever, including, but
not limited to, assessments for off-site public improvements for the benefit of
the Shopping Center, which shall be laid, assessed, levied, or imposed upon the
Shopping Center or any part thereof and which are payable at any time during the
term hereof, and all gross receipts taxes, rent taxes, and occupancy taxes, and
shall include all of Landlord's reasonable administrative costs and any and all
reasonable costs, including reasonable attorney fees, incurred by Landlord in
contesting or negotiating the taxes with any governmental authority, excepting
only franchise, estate, inheritance, succession, capital levy, transfer, net
income and excess profits taxes imposed upon Landlord.
(ii) The Rents to be paid under this Lease shall be paid to Landlord
absolutely and without deduction for taxes of any nature whatsoever. Landlord
and Tenant recognize and acknowledge that there may be changes in the current
real property tax system and that there may be imposed new forms of taxes,
assessments, charges, levies or fees, or there may be an increase in certain
existing taxes, assessments, charges, levies or fees placed on, or levied in
connection with the ownership, leasing, occupancy or operation of the Shopping
Center or the Premises. All such new or increased taxes, assessments, charges
levies or fees which are imposed or increased as a result of or arising out of
any changes in the structure of the real property tax system or any limitations
on the real property taxes which can be assessed on real property including, but
not limited to, any and all taxes, assessments, charges, levies and fees
assessed or imposed due to the existence of this Lease (including any surcharge
on the income directly derived by Landlord therefrom) or for the purpose of
funding special assessment districts of the type funded by real property taxes,
shall also be included within the meaning of "real estate taxes." With respect
to any general or special assessment which may be levied against or upon the
Premises or the Shopping Center and which under the laws then in force may be
evidenced by improvement or other bonds, or may be paid in periodic
installments, there shall be included within the meaning of "real estate taxes"
with respect to any tax fiscal year only the amount currently payable on such
bond for such tax fiscal year, or the periodic installment for such tax fiscal
year.
(iii) Tenant shall be responsible for payment of any type of tax, excise or
assessment, (regardless of label or whether in the form of a rental tax, gross
receipts tax, sales tax, occupation tax, use assessments, privilege tax,
franchise tax, or otherwise, except any tax, excise or assessment which in
substance is a net income or franchise tax that is based solely on Landlord's
net income), which is levied, assessed or imposed at any time by any
governmental authority upon or against the Premises, the use or occupancy of the
Premises, the Rents payable by Tenant to Landlord, or otherwise with respect to
the Landlord-Tenant relationship hereunder. Tenant shall pay the full amount of
such tax, excise or assessment directly to the appropriate governmental
authority, unless the applicable law expressly imposes solely on Landlord the
duty to pay or collect such tax, excise or assessment, in which case Tenant
shall pay the full amount of such tax, excise or assessment as part of the Rents
due and payable under this lease to Landlord within twenty (20) days following
receipt of Landlord's billing therefor. Notwithstanding that the applicable law
may impose on Landlord the duty to pay or collect such tax, excise or
assessment, it is understood and agreed that Tenant shall nevertheless be
obligated to pay such tax, excise or assessment and Landlord shall be
indemnified against and saved harmless from the same by Tenant. In the event (i)
Tenant fails to timely pay such tax, excise or assessment and Landlord pays the
same, or (ii) Landlord elects in its sole discretion to pay the same in advance,
Tenant shall promptly reimburse Landlord for the amount thereof as part of the
Rents due and payable under this Lease. The provisions of this paragraph shall
also apply to any such tax, excise or assessment which may at any time replace
or supplement any tax, excise or assessment described herein.
(b) The Premises, its leasehold improvements and the underlying realty will
not be separately assessed for tax purposes but instead will be assessed as part
of a larger parcel or parcels of land and improvements comprising the Shopping
Center. Accordingly, Tenant agrees to pay its Proportionate Share of said real
estate taxes. Tenant's Proportionate Share of real estate taxes shall be paid by
Tenant to Landlord in equal monthly installments on the first day of each
calendar month during the Term of this Lease, in an amount equal to one-twelfth
(1/12) of Tenant's Proportionate Share of said real estate taxes as reasonably
estimated by Landlord for the tax year. The amount due for any partial fiscal
year shall be prorated accordingly.
(c) Within ninety (90) days after Landlord's payment of the final
installment of real estate taxes for each tax year, Landlord shall furnish
Tenant with a written statement in reasonable detail showing the actual amount
of the real estate taxes applicable to the Shopping Center and the actual amount
and manner of calculation of Tenant's Proportionate Share thereof ("Actual
Taxes"). If Tenant's Proportionate Share of the Actual Taxes exceed the
aggregate of Tenant's monthly payments, Tenant shall pay to Landlord any
deficiency due Landlord within thirty (30) days after receipt of said statement
by Tenant. If Tenant's aggregate monthly payments exceed Tenant's Proportionate
Share of the Actual Taxes, any surplus paid by Tenant shall be credited against
the next ensuing monthly installment of Rent until such surplus is exhausted,
unless such surplus has occurred during Tenant's last year prior to expiration
of the Lease in which event Landlord shall refund such excess to Tenant within
thirty (30) days after determination of such surplus has been made. Failure of
Landlord to provide the statement called for hereunder within the time
prescribed shall not relieve Tenant of its obligations hereunder. Landlord shall
make available for inspection by Tenant upon reasonable notice from Tenant
copies of all bills relating to Actual Taxes.
The obligations of Landlord and Tenant to make the foregoing adjustment
shall survive the expiration or earlier termination of this Lease.
Section 12.4 - Marketing Fund .
(a) During the term hereof, Landlord shall maintain a marketing fund
("Marketing Fund") which shall be used by Landlord to pay all costs and expenses
associated with the formulation and carrying out of an ongoing program for the
promotion of the Shopping Center, which program may include, without limitation,
special events, shows, displays, signs, marquees, decor, seasonal events,
advertising for the Shopping Center, promotional literature to be distributed
within and outside the Shopping Center and other activities within the Shopping
Center designed to attract customers.
(b) In addition, Landlord may use the Marketing Fund to defray the costs of
administration of the Marketing Fund, including, without limitation, the salary
of a marketing director and related administrative personnel, rent and
insurance.
(c) Tenant shall make a contribution to the Marketing Fund in the amount
set forth in Section 1.0(l), hereinafter referred to as "Tenant's Marketing Fund
Contribution". Tenant's Marketing Fund Contribution shall be paid by Tenant in
equal monthly installments, in advance, without deduction or set-off, on the
first day of each calendar month. The amount due for all partial calendar years
shall be prorated accordingly. ------------------------------------
(d) At the end of each calendar year or part thereof, Tenant's Marketing
Fund Contribution shall be adjusted annually by a percentage equal to the
percentage increase in the CPI-U measured for the twelve (12) month period from
the CPI-U published nearest to the Rent Commencement Date to the CPI-U published
on the next succeeding anniversary thereof and thereafter for each twelve (12)
month period between each succeeding anniversary thereof.
Section 12.5 - Security Deposit . Concurrently with its execution and
submission of this Lease, Tenant shall deposit with Landlord and thereafter
during the Term of the Lease shall maintain on deposit with Landlord, without
interest, the sum set forth in Section 1.0(w) as security deposit for the full,
prompt and faithful performance by Tenant of all of its obligations hereunder.
It is also agreed between the parties herein as follows:
(a) That such deposit or any portion thereof may be applied to the curing
of any default that may exist, without prejudice to any other remedy or remedies
which Landlord may have on account thereof, and upon such application Tenant
shall pay Landlord on demand the amount so applied which shall be added to the
security deposit so the same will be restored to its original amount;
(b) That should the Premises be transferred by Landlord, the security
deposit or any balance thereof may be turned over to Landlord's successor or
transferee, and Tenant agrees to look solely to such successor or transferee for
such application or return;
(c) That Landlord or its successors shall not be obligated to hold the
security deposit as a separate funds, but may commingle it with other funds; and
(d) That if Tenant shall faithfully perform all of the covenants and
agreements in this Lease contained on the part of Tenant to be performed, the
security deposit, or any then remaining balance thereof, shall be returned to
Tenant, without interest, within thirty (30) days after the expiration of the
term of the Lease.
Section 12.6 - Grand Opening Marketing Assessment . In addition to the
charges set forth in this Lease, Tenant shall pay to Landlord upon being billed,
as an assessment for the initial opening of the Shopping Center, the amount set
forth in Section 1.0(k). This sum shall be used for the purpose of defraying the
promotional expense in connection with the initial opening of the Shopping
Center and shall be paid by Tenant whether or not Tenant participates in or is
open for business for the initial opening of the Shopping Center. Any portion of
such assessment not actually expended in connection with such initial opening
shall be retained in the Marketing Fund for subsequent expenditures. Landlord
shall not xxxx Tenant for such assessment prior to the date sixty (60) days
before the Scheduled Opening Date.
ARTICLE XIII PREMISES UTILITY SERVICES
Section 13.0 - Status of Charges . As part of the Rents provided for by
this Lease Tenant agrees to pay to Landlord, as hereinafter provided, the
utility service charges which shall be deemed to be included as part of the
Additional Charges described in Article XII.
Section 13.1 - Utilities . Landlord will provide at a point available to
the Premises the facilities necessary to enable Tenant to obtain for the
Premises water, electricity, telephone and sanitary sewer service, such
facilities being more specifically described in Exhibit "GCS1.0". Tenant shall
be solely responsible for payment or reimbursement to Landlord of all utilities
and services provided to the Premises, including, without limitation, gas, heat,
water electricity, other power, air conditioning, telephone service, flora
maintenance and preservation, oven and stove exhaust cleaning and air filter
replacement services, premises cleaning service, interior window washing
services, garbage disposal, pest control and sewerage services. Landlord may
include a service charge of up to Twenty-Five Dollars ($25) per month in the
cost of utilities billed directly by Landlord. Tenant shall also be responsible
for and pay all connection or service fees in connection with such utilities and
services. All costs of providing meters or submeters shall be paid by Tenant. If
applicable, Tenant shall pay all utility charges directly to the billing utility
company by no later than the due date specified in any xxxx. Landlord may
provide heating, chilled water and chilled air from a central plant to the
Premises, in which case Tenant shall pay to Landlord (or the operator of the
central plant, if applicable) Tenant's share of the cost of such services as
reasonably determined by Landlord. Such share shall be paid to Landlord (or
plant operator) by the first day of each and every month as additional rent.
Section 13.2 - Premises Heating, Ventilating and Air-conditioning System .
Tenant is to provide its own equipment and facilities for heating, ventilating
and air-conditioning the Premises ("Premises HVAC System") described in Exhibit
"GCS1.0", and shall operate and maintain the same during the Term of this Lease
and such equipment shall belong to Landlord at the expiration or earlier
termination of this Lease.
Section 13.3 - Discontinuance of Service . Landlord reserves the right with
thirty (30) days prior written notice to Tenant to cut off and discontinue
water, electricity, air conditioning, heating, ventilating, and any or all other
service without liability to Tenant, whenever and during any period after such
thirty (30) day period in which bills for the same remain unpaid by Tenant. Any
such action by Landlord shall not be construed by Tenant or any other party
interpreting this Lease as an eviction or disturbance of possession of Tenant or
an election by Landlord to terminate this Lease on account of such nonpayment.
If such service is discontinued or disconnected by Landlord pursuant to this
Section 13.3, any reconnection of such service shall be at Tenant's sole cost
and expense.
Section 13.4 - Interruption of Service . Landlord shall not be liable to
Tenant in damages or otherwise if any one or more of said utility services or
obligations hereunder is interrupted or terminated because of necessary repairs,
installations, construction and expansion, non-payment of utility charges due
from Tenant, or by reason of governmental regulation, statute, ordinance,
restriction or decree, or any other cause beyond Landlord's reasonable control.
No such interruption or termination of utility service shall relieve Tenant from
any of its obligations under this Lease. If any one or more of such utility
services or obligations hereunder is interrupted or terminated due to any cause
within Landlord's reasonable control, and such interruption or termination
prevents Tenant from operating Tenant's business in the Premises for five (5)
consecutive days, then the payment of Rent by Tenant shall be abated for each
day after the five (5) day period during which said interruption or termination
prevents Tenant from operating Tenant's business in the Premises.
ARTICLE XIV SIGNS
Section 14.1 - Tenant's Obligation . Tenant shall only erect such signs
that have been approved by Landlord in accordance with Exhibit "GCS1.0" and
requirements of all governmental authorities, and said signs shall be maintained
in good condition by Tenant. Tenant shall obtain all permits and licenses for
its sign(s). Tenant shall not exhibit or affix any other type of sign, decal,
advertisement, notice or other writing, awning, antenna or other projection to
the roof or the outside walls or windows of the Premises or the building of
which the Premises are a part, without Landlord's approval. No movable displays
or sales fixtures will be allowed in the Design Control Area (as defined in
Exhibit "GCS1.0") except behind the display windows or store closure.
Section 14.2 - Interior Signs and Advertising . Tenant further agrees that
no advertising material of any kind except temporary price tags related to
merchandise on display shall be placed within four (4) feet of any customer door
or lease line of the Premises or on the surface of any display window or
customer door. All window display advertising material and signs shall be in
keeping in character and standards with the improvements within the Shopping
Center as reasonably determined by Landlord and as more specifically described
in Exhibit "GCS1.0," and Landlord reserves the right to require Tenant to
correct any nonconformity. Any such display and signs shall only be related to
merchandising of goods from the Premises.
ARTICLE XV REPAIRS AND ALTERATIONS
Section 15.1 - Repairs by Landlord .
(a) Landlord shall keep the roof, structural portions, the exterior of the
Premises, parking facilities and other Common Areas, in good and tenantable
condition and repair during the Term of this Lease, subject to Section 12.2,
provided, however, if the need for such repair is attributable to or results
from the negligence or misconduct of Tenant or its agents and is not covered by
Section 17.4, or is Tenant's responsibility, then in such case Tenant does
hereby agree to and shall reimburse Landlord for all costs and expenses incurred
by Landlord with respect to such repairs.
(b) As used in this Article the expression "structural portions and
exteriors of the Premises" shall not be deemed to include store front or store
fronts, plate glass, window cases or window frames, doors or door frames or
alterations required to comply with any governmental regulations or
requirements, including, but not limited to, the Americans with Disabilities Act
("ADA"). It is expressly understood and agreed that Landlord shall be under no
obligation to make any repairs, alterations, --- replacements or improvements to
and upon the Premises resulting from compliance with the ADA or the mechanical
equipment exclusively serving the Premises at any time.
(c) Landlord shall not in any way be liable to Tenant for failure to make
repairs as herein specifically required of Landlord unless Tenant has previously
notified Landlord in writing of the need for such repairs or Landlord has
otherwise obtained knowledge thereof and Landlord has failed to commence said
repairs within a reasonable period of time following receipt of Tenant's written
notification or such knowledge, and has not diligently pursued said repairs to
completion.
Section 15.2 - Repairs by Tenant .
(a) It shall be Tenant's sole responsibility, at its own expense, to keep
and maintain its storefront and the interior of the Premises in good condition
and repair; provided, however, if the need for such repair is attributable to or
results from the negligence or misconduct of Landlord or its agents and is not
covered by Section 17.4, then in such case Landlord does hereby agree to and
shall reimburse Tenant for all costs and expenses incurred by Tenant with
respect to such repairs. All repairs to the Premises or any installation,
equipment or facilities therein or thereabout, other than those repairs required
to be made by Landlord pursuant to Section 15.1, shall be made by Tenant. Said
repairs shall include but not be limited to all necessary painting and
decorating, the maintenance, repair and replacement of the electrical, plumbing
and sewer systems, under the floor and elsewhere which exclusively serve the
Premises, storefronts, window and other glass, entrance and service doors and
window frames, and any other mechanical or operational installations exclusively
serving the Premises. All such repairs and replacements shall be in quality and
class equal to the original work or item and shall be subject to Landlord's
prior reasonable approval.
(b) Tenant shall replace, at the expense of Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the
Premises.
(c) Landlord agrees that Tenant shall have the benefit of all warranties
that Landlord obtained in performing the work required to be performed by
Landlord under Section 6.1 to the extent in force with respect to portions of
the Premises Tenant is obligated to repair and maintain hereunder.
Section 15.3 - Alterations and Remodeling .
(a) Tenant, at its own expense, shall have the right, during the Term of
this Lease, to make such interior alterations, changes and improvements to the
Premises as Tenant may deem necessary for its use and business, provided,
however, that any remodeling of the interior in excess of Twenty-Five Thousand
Dollars ($25,000) and any material or structural alterations to the Premises or
changes in the electrical, heating, ventilating and air conditioning systems
thereof shall not be made without Landlord's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. In addition,
prior to the commencement of such work, Tenant, if required by Landlord, shall
secure, at Tenant's expense, performance, labor and materials bonds satisfactory
to Landlord for the full cost of such work. Landlord's approval of Tenant's
alterations shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency or compliance with all Requirements.
All such alterations, changes and improvements, except trade fixtures, shall
become the property of Landlord upon installation and shall remain upon and be
surrendered with the Premises upon expiration or earlier termination of this
Lease. If any alteration costs in excess of Two Hundred Thousand Dollars
($200,000), Tenant shall deliver "as-built" plans to Landlord upon completion.
(b) Tenant further agrees not to make any alterations, additions or changes
to any storefront or exterior sign, the exterior walls or roof of the Premises,
nor shall Tenant erect any second level or increase the size of same if one is
initially constructed unless and until the prior written consent of Landlord
shall first have been obtained. In no event shall Tenant make or cause to be
made any penetration through the roof or the floor slab of the Premises without
the prior written consent of Landlord.
Section 15.4 - Renovation . In the event that Landlord develops after five
(5) years from the date of this Lease, a comprehensive renovation plan for the
Shopping Center which may include structural changes to conform to revised
design criteria or to new additions to the Shopping Center, Tenant agrees, at
Landlord's sole cost, to redesign and reconstruct its store front and signs to
conform to Landlord's revised design criteria. Landlord shall provide Tenant
with revised design criteria and Tenant shall commence its renovation within
ninety (90) days of receipt of said criteria and shall thereafter diligently
pursue its completion.
Section 15.5 - Refurbishment . Without limiting Section 15.2 or Section
15.3, Tenant agrees that it will cosmetically refurbish the Premises at least by
the end of the sixth (6th) Lease Year if Tenant exercises its option to extend
the Term of this Lease under Section 9.5, according to plans which are approved
by Landlord in writing in advance.
ARTICLE XVI LIENS
Section 16.1 - Indemnification by Tenant . Tenant shall allow no liens to
be filed against the Premises, the Shopping Center or the Resort as a result of
work performed by, at the request or on behalf of Tenant. Tenant shall indemnify
and save harmless Landlord against all loss, liability, costs, attorney's fees,
damages or interest charges as a result of any mechanic's lien or any other lien
caused to be filed against the Shopping Center, the Premises, the Resort or
Tenant's leasehold estate therein as a result of acts or omissions of Tenant or
its agents, contractors and employees, and Tenant shall, within thirty (30) days
of the filing of any such lien and written notice given to Tenant, remove, pay
or cancel said lien or secure the payment of any such lien or liens by bond or
other security acceptable to Landlord.
Section 16.2 - Tenant's Right of Contest . Tenant shall have the right at
all times and at its own expense to contest and defend on behalf of Tenant or
Landlord any action involving the collection, validity or removal of such lien
or liens, upon giving adequate security to Landlord for payment of such lien.
ARTICLE XVII INDEMNITY AND INSURANCE
Section 17.1 - Mutual Indemnification .
(a) Tenant shall defend, indemnify and save Landlord harmless from legal
action, damages, loss, liability and any other expense (including reasonable
attorney fees) in connection with loss of life, bodily or personal injury or
property damage arising from or out of all acts, failures, omissions or
negligence of Tenant, its agents, employees or contractors which occur in the
Premises, Common Areas or other parts of the Shopping Center, unless such legal
action, damages, loss, liability or other expense (including reasonable attorney
fees) results from any sole act, omission or neglect of Landlord, its respective
agents, contractors, employees or persons claiming through it.
(b) Landlord shall indemnify and save Tenant harmless from legal action,
damages, loss, liability and any other expense (including reasonable attorney
fees) in connection with loss of life, bodily or personal injury or property
damage, arising from or out of all acts, failures, omissions or negligence of
Landlord, its agents, employees or contractors which occur in the Premises,
Common Areas or other parts of the Shopping Center, unless such legal action,
damages, loss, liability or other expense (including reasonable attorney fees)
results from any sole act, omission or neglect of Tenant, its respective agents,
contractors, employees or persons claiming through it.
Section 17.2 - Tenant's Insurance . Tenant covenants and agrees that from
and after the date of delivery of the Premises from Landlord to Tenant, and
during the Term of this Lease, Tenant will carry and maintain, at its sole cost
and expense, the following types of insurance, naming as insureds or loss
payees, as appropriate, Tenant, Landlord, Landlord's lenders and other parties
with an insurable interest as designated by Landlord, in the amount specified
and in the form hereinafter provided for with insurance companies authorized to
do business in the state in which the Premises is located and rated A-/VIII or
better in the most current edition of Best's Insurance Report. All policies
shall be written as primary policies and not contributing with or in excess of
the coverage, if any, which Landlord may carry.
(a) Commercial General Liability Insurance. Tenant shall keep in full force
and effect commercial general liability insurance, which shall include broad
form property damage liability coverage, extended bodily injury coverage,
advertising injury liability coverage, contractual liability coverage and
independent contractors coverage, in the amount set forth in Section 1.0(n),
adjusted annually for inflation (but only if the CPI-U has increased five
percent (5%) or more since the last such adjustment), written on a combined
single limit per occurrence basis for property damage, personal injury and
bodily injury or death of one or more persons.
(b) Boiler and Machinery Insurance. If applicable, Tenant shall maintain in
full force and effect at all times during the Term of the Lease a policy(s) of
boiler and machinery breakdown insurance covering all of its boilers, fired or
unfired pressure vessels, heating, ventilating and air-conditioning units or any
other mechanical equipment which may malfunction or cause damage to property or
injury to persons that may be caused by or results from any equipment existing
from time to time at the Premises, which equipment is used exclusively by
Tenant, and if said coverage is not included within the policy(s) providing
coverage for Tenant's alterations, improvements and betterments, pursuant to
Section 17.2(e), then said insurance shall be by separate policy in the amount
set forth in Section 1.0(n).
(c) Environmental Impairment Liability Insurance. Subject to the
limitations imposed by Section 18.14, if Tenant uses, stores, handles, processes
or disposes of "Hazardous Materials" (as hereinafter defined) in the ordinary
course of its business, then Tenant shall maintain in full force and effect
throughout the Term of this Lease, Environmental Impairment Liability Insurance
with limits of not less than the amount set forth in Section 1.0(n), providing
coverage for bodily injury, property damage or injury or damage of actual,
alleged or threatened emission, discharge, dispersal, seepage, release or escape
of Hazardous Materials, including any loss, cost or expense incurred as a result
of any cleanup of Hazardous Materials or in the investigation, settlement or
defense of any claim, suit, or proceedings against Landlord or its management
company arising from Tenant's use, storage, handling, processing or disposal of
Hazardous Materials.
As used herein, the term "Hazardous Material" means those substances,
chemicals and mixtures as may be defined as "hazardous substances," "hazardous
materials", "toxic substances," "imminently hazardous chemical substance or
mixture," "pesticide," "heavy metal," "hazardous air pollutant," "toxic
pollutant," "toxic waste," "pollutant," "regulated substance," "asbestos,"
"asbestos containing material," "solid waste" "hazardous waste," "medical
waste," or "radioactive waste" in any of the following acts, as now or hereafter
amended: the Toxic Substances Control Act, 15 U.S.C. Sec. 2601 et seq., the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
42 U.S.C. Sec. 9601 et seq, the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Sec. 5901 et seq., the Federal Hazardous Substances Act, 15 U.S.C.
Sec. 1261 et seq., the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251
et seq., the Clean Air Act, 42 U.S.C. Sec. 7401, et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec. 136 et seq., the
Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sec. 11001
et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq.,
the statutes of the State of Nevada found currently at ch. 444, 445, 459, 477,
590, 618 or in the Uniform Fire Code, 1991 edition and the rules, orders and
regulations now in effect or promulgated and effective hereafter pursuant to
each respective law listed above as well as such other substances, materials and
wastes which are regulated under applicable local, state or federal law, or
which are classified as hazardous or toxic under federal, state or local laws or
regulations.
(d) Liquor Liability Insurance. If Tenant distributes, sells, serves or
furnishes alcoholic beverages in the ordinary course of its business, then
Tenant shall maintain and keep in full force and effect throughout the Term of
this Lease, Liquor Liability Insurance in an amount not less than $1,000,000
written on a combined single limit per occurrence basis.
(e) Personal Property, Alterations, Improvements and Betterments. Tenant
shall at all times during the Term hereof maintain in full force and effect a
policy(s) of all risk insurance including coverage for flood, earthquake,
sprinkler damage, vandalism and malicious mischief, covering all of Tenant's
personal property, including alterations, improvements and betterments to the
Premises now existing or to be added, to the extent of their full replacement
costs as updated from time to time during the Term of this Lease. Landlord shall
be a named loss payee under each such policy.
The proceeds of Tenant's policy(s) to the extent of the cost of any damage
or loss to the Premises, shall be used for the repair and replacement of the
property damaged or destroyed. In the event of Tenant's failure to commence,
within forty-five (45) days of availability of insurance proceeds and the
Premises reconstructed to the extent required to be reconstructed by Landlord
under Article XXII, and to diligently proceed to reconstruct or repair its
portion of the damaged or destroyed Premises to its former condition prior to
said casualty, then Landlord shall have the right to make all necessary repairs
and if the insurance proceeds described above are not sufficient to cover the
repairs, Tenant shall be liable for all additional costs in excess of such
available insurance proceeds. However, it is expressly understood and agreed
that Landlord shall be under no obligation to insure, reinstall, repair or
replace any such alterations, additions, improvements or betterments. This
paragraph is only applicable if the Lease is not terminated pursuant to Article
XXII hereof.
(f) Additional Hazards. Tenant agrees that it will not keep, use, sell or
offer for sale in or upon the Premises any article which may be prohibited by
the standard form of all risk insurance coverage. Tenant agrees to pay any
increase in premium for All Risk Coverage resulting from the keeping, use, sale
or offering for sale of such prohibited articles that may be charged during the
Term of this Lease for the amount of any insurance which may be carried by
Landlord on the Premises. Said ------------------ additional premiums shall be
payable by Tenant to Landlord upon ten (10) days written notice to Tenant.
(g) Blanket Policies. Tenant may maintain any of its required insurance
coverages under excess liability, umbrella or blanket policies of insurance
covering said Premises and any other premises of Tenant, or companies affiliated
with Tenant, provided that the coverage afforded will not be reduced or
diminished by reason of the use of such blanket policy.
(h) Worker's Compensation. Tenant shall, at all times during the Term,
maintain and pay all sums to the State Industrial Insurance System in order to
be in compliance with their worker's compensation requirements or maintain
adequate worker's compensation insurance in the event of that Tenant is
permitted to be self-insured, together with Employer's Liability (Nevada Stop
Gap) in an amount not less than One Million Dollars ($1,000,000.00) for each
injury, accident or illness. If self-insured, Tenant shall submit at least
fourteen (14) days prior to the Rent Commencement Date and annually during the
Term thereafter a certificate of compliance to Landlord confirming that Tenant
has fulfilled its self-insurance requirements.
(i) Business Interruption. Tenant shall, at all times during the Term,
procure and maintain in full force and effect a policy of business interruption
insurance in an amount not less than one hundred percent (100%) of the annual
business interruption value and an extended period of indemnity clause for an
additional three (3) months.
(j) Other Policies. Tenant shall maintain such other or additional
insurance (as to risks covered, policy amounts, policy provisions or otherwise)
as Landlord may reasonably request provided that such insurance and such amounts
are then commonly insured against with respect to similar properties in Xxxxx
County, Nevada.
(k) Policy(s) and/or Certificates of Insurance. The above mentioned
policy(s) or certificate(s) of insurance are to be provided by Tenant to
Landlord prior to occupancy and at least annually thereafter or as requested by
Landlord. The coverage evidenced by the policy(s) or certificate(s) of insurance
will be with insurance company(s) reasonably acceptable to Landlord and will be
for a period of not less than one (1) year, and will provide that Landlord be
given written notice thirty (30) days prior to the expiration, material adverse
alteration, cancellation, non-renewal or replacement of the existing policy(s),
with the further understanding that should Tenant fail to furnish said notice or
policies as is provided in this Lease, and at the times herein provided,
Landlord may obtain such insurance and the premiums on such insurance shall be
deemed to be an Additional Charge to be paid by Tenant to Landlord upon demand.
(l) Notice of Loss. Tenant shall notify Landlord forthwith in the event of
any damage to persons or property occurring on the Premises from fire, any other
casualty, or serious injury. Section 17.3 - Landlord's Insurance . Landlord
covenants and agrees that from and after the date of delivery of the Premises
from Landlord to Tenant, and during the Term of this Lease, Landlord will carry
and maintain, with regard to the Shopping Center, the following types of
insurance, in the amounts specified and in the form hereinafter provided:
(a) Commercial General Liability Insurance. Landlord shall keep and
maintain in full force and effect commercial general liability insurance in an
amount not less than $2,000,000, adjusted annually for inflation, written on a
combined single limit per occurrence basis for property damage and personal and
bodily injury or death of one or more persons.
(b) Property Damage Insurance. Landlord shall, at all times, keep and
maintain in full force and effect all risk policy(s) of insurance, including
coverage for sprinkler damage, vandalism and malicious mischief, covering the
roof, structural portions and perimeter walls of the Shopping Center and
equipment (excluding Tenant's fixtures, merchandise, personal property, wall
coverings, alterations, improvements, betterments and any other item included in
Tenant's insurance) in an amount not less than full replacement cost (exclusive
of the cost of excavations, foundations and footings) updated from time to time
during the Term of this Lease or the amount of such insurance which Landlord's
mortgage lender may require Landlord to maintain, whichever is the greater.
(c) Blanket Policies. Landlord may maintain any of its required insurance
under blanket policies of insurance covering the Premises and any other premises
of Landlord or companies affiliated with Landlord, provided that the coverage
afforded will not be reduced or diminished by reason of the use of such blanket
policy of insurance.
All insurance maintained by Landlord pursuant to this Section 17.3 shall be
a part of the CAM Cost.
Section 17.4 - Waiver of Subrogation . Notwithstanding anything to the
contrary contained elsewhere in this Lease, neither Landlord nor Tenant shall be
liable to the other party or to any insurance company insuring the other party
by way of subrogated rights or otherwise, for any loss or damage caused by fire
or any other hazard or peril covered by fire and extended coverage or all risk
insurance, to the extent such loss or damage is covered by insurance (or where
insurance was required by this Lease) to any building structure or other
tangible property, or any resulting loss of income, even though such loss or
damage may have been occasioned by the negligence of such party, its agents or
employees.
Section 17.5 - Landlord Not Responsible for Acts of Others . Landlord shall
not be responsible or liable to Tenant, or those claiming by, through or under
Tenant, for any loss or damage to their person or property resulting from the
acts or omissions of persons occupying space adjoining or adjacent to the
Premises or connected to the Premises or any other part of the Shopping Center
caused by but not limited to events such as breaking or falling of electrical
cables and wires, the breaking, bursting, stoppage or leaking of water, gas,
sewer or steam pipes.
ARTICLE XVIII GENERAL RULES AND REGULATIONS
Section 18.1 - Uniformity . Landlord reserves the right, at any time and
from time to time for the general welfare of the Shopping Center, the avoidance
of nuisance and the maintenance of a good reputation, safety, order and
cleanliness in the Premises and at the Shopping Center, to impose reasonable
rules and regulations of generally uniform application governing the conduct of
tenants and the use of the Common Areas in the Shopping Center. Upon receipt of
notice thereof, Tenant agrees to comply with such rules and regulations imposed
by Landlord as if they had existed and been attached hereto at the time of
execution of this Lease.
Xxxxxxx 00.0 - Xxxxxxx . Xxxxxx agrees to maintain the Premises, at its
expense, free and clear of all rubbish, garbage or trash in the containers
permitted and/or required by Landlord. Tenant, at its own expense, shall dispose
of all said rubbish as reasonably directed by Landlord. In the event Tenant
requires the services of a trash compactor, it agrees to arrange for and
coordinate said services through Landlord's mall manager. If Tenant is required
to use the Shopping Center's trash compactor service, the charge for such
service shall be competitive with the prevailing market rate for such services.
Section 18.3 - Lighting . Tenant agrees to keep the windows of the Premises
properly displayed and the Premises signs and external lights, where
specifically permitted, properly illuminated during the hours as reasonably
established by the rules and regulations of Landlord for the Shopping Center.
Section 18.4 - Merchandise Display, Loading and Unloading . Tenant agrees
not to display merchandise outside the Premises, and to load, unload or deliver
goods and merchandise only at such times and in such areas and through such
entrances as shall be reasonably designated by Landlord.
Section 18.5 - Obstruction of Passageways . Tenant agrees not to obstruct
the passageways, driveways, approachways, walks, roadways, exits and entries in,
to, from and through the Common Areas and all other parts of the Shopping Center
used in common with other tenants.
Section 18.6 - Employee Parking . Tenant and its employees shall park their
cars only in such areas designated for the purpose by Landlord. Tenant shall
furnish Landlord with state automobile license numbers assigned to cars used by
Tenant's employees within five (5) days after taking possession of the Premises
and shall thereafter notify Landlord of any changes within five (5) days after
such changes occur. If Tenant or its employees shall fail to park their cars in
the designated parking areas, then, without limiting any other remedy which
Landlord may pursue in the event of Tenant's default, Landlord, after giving
notice to Tenant, shall have the right to charge Tenant, as an Additional
Charge, the sum of Thirty Dollars ($30.00) per day per car parked in violation
of the provisions of this Section 18.6.
Landlord may, in its sole discretion, arrange for off-site parking and a
shuttle service to the Shopping Center. The cost for such service shall be
included in the CAM Cost.
Section 18.7 - Interference With Other Tenants . Tenant shall not do,
permit or suffer anything to be done, or kept upon the Property that will
obstruct or interfere with the rights of other tenants, Landlord or the patrons
and customers of any of them, or which will or would be likely to cause a
nuisance to any of them or their patrons or customers by reason of unreasonable
noise, odor, vibration, or otherwise, nor will Tenant commit or suffer any act
which would result in the diminishment of the good will of the Resort, Landlord
or Tenant or in any way reflect the Resort, Landlord or Tenant in a negative
manner within the business and consumer community.
Section 18.8 - Security . Tenant acknowledges that Landlord's security
department and security officers are not responsible for providing security
services in the Premises and that all such responsibility is the obligation of
Tenant. In no event shall Landlord be liable to Tenant or any third-party for
the security department's failure to respond to a request for aid or assistance
by Tenant.
Section 18.9 - Employee Areas . Tenant shall not cause or permit its
employees or agents to enter upon those areas of the Resort which are designated
"Employees Only".
Section 18.10 - Tenant Conduct . Tenant acknowledges that Landlord and its
affiliates have a reputation for offering high-quality entertainment and/or
services to the public, and that it and its affiliates are subject to regulation
and licensing, and desire to maintain their reputation and receive positive
publicity. Tenant therefore agrees that throughout the Term of this Lease, it
and its officers, directors, shareholders, employees and agents will not conduct
themselves in a manner which is contrary to the best interests of Landlord, nor
in any manner that adversely affects or is detrimental to Landlord or its
affiliates, and will not directly or indirectly make any oral, written or
recorded private or public statement or comment that is disparaging, critical,
defamatory or otherwise not in the best interests of Landlord. Landlord shall
use its good faith business judgment in determining whether Tenant's conduct or
that of its officers, directors or management adversely affects Landlord or its
affiliates.
Section 18.11 - Gaming . No slot machine, video gaming device or other
gambling game shall be permitted on the Premises.
Section 18.12 - Prohibited Advertising . Landlord shall have the right to
prohibit any advertising, promotion or display by Tenant which, in Landlord's
reasonable opinion, impairs or would tend to impair the reputation of Landlord,
the Shopping Center or the Resort or its desirability as a location as a resort,
hotel, casino, restaurant, retail or other commercial space, and upon written
notice from Landlord Tenant shall immediately refrain from and discontinue such
advertising. Upon written request of Landlord, Tenant shall provide Landlord a
tangible specimen of advertising material relating to the Premises prior to
publishing or otherwise displaying such advertisements in any manner, whether
through print media, electronic media, over or through the Internet or through
any other means now known or hereafter developed.
Section 18.13 - Resort References . Tenant, at its sole expense, agrees to
refer to the Shopping Center and the Resort only by such name as permitted by
Landlord in designating the location of the Premises in all newspaper or other
advertising, stationery, other printed materials and all other references to
location. Tenant agrees Landlord may include a reference to Tenant's tradename
listing Tenant as one of the tenants of the Shopping Center in advertising and
marketing of the Shopping Center and Resort.
Section 18.14 - Prohibited Uses . Tenant shall not, without prior written
consent of Landlord, sell, or suffer to be kept, used or sold in, upon or about
the Premises any gasoline, distillate or other petroleum products or any other
substance or material of an explosive, inflammable or radiological nature, in
such quantities as may be prohibited by any such insurance policy or any
Hazardous Material or any other substance that may endanger any part of the
Resort or its occupants, business patrons or invitees. Notwithstanding anything
to the contrary in the foregoing, Tenant shall not use, store, transport,
manufacture, process, treat, discharge or release any Hazardous Material from
in, on or about the Premises in violation of the Environmental Laws.
Section 18.15 - Employee Drug Testing . Tenant shall require pre-employment
drug testing of all employees at the Premises (other than persons employed by
Tenant as of the date hereof) at Tenant's sole cost and expense.
ARTICLE XIX SUBORDINATION AND ATTORNMENT BY TENANT
Section 19.1 - Subordination of Lease . This Lease and the estate of Tenant
hereunder shall be subject and subordinate to any ground lease, deed of trust,
mortgage lien or charge or any reciprocal easement agreement or other operating
agreement which now encumber or which at any time hereafter may encumber the
Premises (such ground lease, deed of trust, mortgage lien or charge, or any
reciprocal easement agreement or other operating agreement and any replacement,
renewal, modification, consolidation or extension thereof being hereinafter
referred to as an "Encumbrance"). Any Encumbrance shall be prior and paramount
to this Lease and to the right of Tenant hereunder and all persons claiming
through and under Tenant, or otherwise, in the Premises. Tenant's acknowledgment
and agreement of subordination provided for in this Section 19.1 shall be
self-operative and no further instrument of subordination shall be required.
However, Tenant, on Tenant's behalf, and on behalf of all persons claiming
through and under Tenant, covenants and agrees that, from time to time at the
request of Landlord or the holder of any Encumbrance, Tenant will execute and
deliver any necessary or proper instruments or certificates reasonably necessary
to acknowledge or confirm the priority of the Encumbrance over this Lease and
the subordination of this Lease thereto or to evidence Tenant's consent to any
Encumbrance. Notwithstanding the foregoing, any holder of an Encumbrance may
elect to the extent possible that this Lease shall have priority over such
Encumbrance and, upon notification of such election by the holder of such
Encumbrance, this Lease shall be deemed to have priority over such Encumbrance,
whether this Lease is dated prior to or subsequent to the date of such
Encumbrance. Notwithstanding the foregoing, the subordination of this Lease to
any Encumbrance under this Section 19.1 shall only be effective if the holder of
such Encumbrance (a "Superior Mortgagee") executes and delivers to Tenant a
non-disturbance agreement, the form of which shall be a commercially reasonable
form. Tenant shall execute and deliver to any Superior Mortgagee any such
commercially reasonable non-disturbance agreement requested by such Superior
Mortgagee within ten (10) days of such Superior Mortgagee's request therefor.
Section 19.2 - Attornment by Tenant . Tenant agrees that if the holder of
any Encumbrance or any person claiming under said Encumbrance shall succeed to
the interest of Landlord in this Lease, Tenant shall recognize and attorn to
said holder as Landlord under the terms of this Lease. Tenant agrees that it
will, upon the request of Landlord, execute, acknowledge and deliver any and all
instruments necessary or desirable to give effect or notice of such attornment
and failure of Tenant to execute any such document or instrument on demand shall
constitute a default by Tenant under the terms of this Lease.
ARTICLE XX RIGHTS OF LANDLORD
Section 20.1 - Landlord's Right to Repair . Landlord, or its authorized
agents, after reasonable prior written notice to Tenant, may go upon and inspect
the Premises or any portion of the Shopping Center and, if Tenant has failed to
commence and diligently pursue to completion any repairs required to be made by
Tenant hereunder within ten (10) days following receipt of written notice from
Landlord, may make such repairs. Said work performed shall be chargeable to
Tenant and shall be due and payable within ten (10) days following receipt of
Landlord's billing.
Section 20.2 - Landlord's Right to Affix Sign . Landlord has a right to
install or place upon, or affix to the roof and exterior walls of the Premises
equipment, non-competitive signs, displays, antennas and any other object or
structure of any kind, provided the same shall not materially impair the
structural integrity of the building or interfere with Tenant's occupancy.
Section 20.3 - Landlord's Right to Make Payments on Behalf of Tenant .
Landlord has a right to make payments on behalf of Tenant where Tenant defaults
in its payments or obligations under the terms of this Lease. Said payments by
Landlord shall be considered as an Additional Charge and be due and payable
within ten (10) days following receipt of Landlord's billing.
ARTICLE XXI ASSIGNMENT AND SUBLETTING
Section 21.1 - Landlord's Consent Required .
(a) Landlord has entered into this Lease with Tenant in order to obtain the
benefit for the Shopping Center of the unique attraction of the trade name set
forth in Article I and of the unique merchandising mix and product line
associated with the business operated by Tenant under such trade name. In
entering into this Lease, Landlord has specifically relied on the identity and
special skill of Tenant in its ability to conduct the business identified in
Article I. Accordingly Tenant shall not mortgage, pledge, encumber, franchise,
assign or in any manner transfer this Lease, voluntarily or involuntarily, by
operation of law or otherwise, nor sublet all or any part of the Premises for
the conduct of any business by any third person or business entity, or for any
purpose other than is herein authorized without Landlord's prior written consent
which shall not be unreasonably withheld, conditioned or delayed by Landlord.
Notwithstanding the foregoing provisions, Tenant shall have the right to assign
this Lease, without Landlord's consent and without increase in rent and/or
payment to Landlord, to the surviving entity in the event of any merger or
consolidation involving Tenant or to the buyer in one transaction of all or
substantially all of Tenant's assets.
(b) Any consent by Landlord to any assignment or subletting, or other
operation by a concessionaire, or licensee, shall not constitute a waiver of the
necessity for such consent under any subsequent assignment or subletting or
operation by a concessionaire or licensee.
(c) Reference anywhere else in this Lease to an assignee or subtenant shall
not be considered as a consent by Landlord to such assignment or subletting nor
as a waiver against the same except as specifically permitted in this Section
21.1.
Section 21.2 - Insolvency Proceedings . In the event an assignment of the
Premises is caused by operation of law due to Tenant's voluntary or involuntary
insolvency proceedings under the Bankruptcy Reform Act of 1978 as amended, said
assignment shall be subject to any and all conditions contained in Section 365
of said Act or any other section pertaining to the termination, assumption,
assignment and rejection of executory contracts for leases.
Section 21.3 - Return of Premises by Tenant . Prior to or simultaneously
with any request by Tenant for consent as required in this Article XXI to assign
this Lease or sublet the whole or substantially the whole of the Premises,
Tenant shall, by written notice and without charge of any kind, offer the return
of the Premises to Landlord herein. Landlord, within thirty (30) days of receipt
of said written notice, shall have the option to accept the Premises without
further liability upon Tenant as to the terms of this Lease or reject said offer
and permit Tenant to assign or sublet the Premises subject to the conditions of
this Article XXI; provided, however, that if Landlord elects to accept the
premises, then Tenant shall have thirty (30) days from Landlord's notice to
Tenant of such election to rescind such offer and continue to lease the Premises
on the terms and conditions set forth herein.
Section 21.4 - Transfer of Ownership .
(a) In the event that Tenant is a "closely-held" entity (meaning a
corporation which is not listed on a national security exchange as defined in
the Securities Exchange Act of 1934 and as amended, a partnership, a limited
liability company, or any other type of business entity that is not a
corporation), a change in the "control" of Tenant ("control" meaning the
ownership or control of more than fifty percent (50%) of the voting or ownership
interests of Tenant or, if Tenant is a partnership, the general partner of
Tenant) without Landlord's prior written consent shall constitute an attempted
assignment in violation of this Lease and shall at Landlord's election: (x) be
deemed to be a default under this Lease; (y) be deemed to be an offer of return
of the Premises to Landlord pursuant to Section 21.3; or (z) be deemed to be
null and void and of no effect.
(b) Notwithstanding the foregoing provisions, Tenant shall have the right
to assign or otherwise transfer this Lease or sublease the entire Premises (but
not part of the Premises), to its parent or to a wholly owned subsidiary or to
an entity which is wholly owned by the same entity which wholly owns Tenant, or
to an entity controlled by Tenant or by the persons and entities that control
Tenant, provided, however, that (i) Tenant shall also remain primarily liable
for all obligations under this Lease, (ii) the transferee shall, prior to the
effective date of the transfer, deliver to Landlord, instruments evidencing such
transfer and its agreement to assume and be bound by all the terms, conditions
and covenants of this Lease to be performed by Tenant, all in form acceptable to
Landlord, (iii) Tenant shall not be in default under this Lease and (iv)
Tenant's right to make such transfer is expressly conditioned on, and shall
remain in effect only as long as the transferee maintains its relationship as
parent or wholly owned subsidiary of Tenant or wholly owned subsidiary of
Tenant's parent. Any transfer of other ownership interests of such parent or
subsidiary transferee shall be deemed a change in the control of Tenant and
governed by the provisions of Section 21.4(a) unless such parent or subsidiary
transferee is not a closely-held entity.
Section 21.5 - Acceptance of Rent by Landlord . If this Lease be assigned,
or if the Premises, or any part thereof, be subleased or occupied by anybody
other than Tenant with or without Landlord's consent, Landlord may collect from
assignee, subtenant or occupant, any Rent or other charges payable by Tenant
under this Lease and apply the amount collected to the Rents herein reserved,
but such collection by Landlord shall not be deemed a waiver of the provisions
of this Lease, nor an acceptance of this assignee, subtenant or occupant, as a
tenant of the Premises.
Section 21.6 - No Release of Tenant's Liability . No assignment or
subletting or any other transfer by Tenant, either with or without Landlord's
consent, required or otherwise, during the Term of this Lease shall release
Tenant from any liability under the terms of this Lease nor shall Tenant be
relieved of the obligation of performing any of the terms, covenants and
conditions of this Lease.
Section 21.7 - Legal Fees . In each instance where Landlord's consent to an
assignment or subletting is requested by Tenant, Tenant acknowledges and agrees
that Landlord shall not be deemed to be acting unreasonably if Landlord, as one
of its conditions to the granting of such consent, should require Tenant to pay
the reasonable attorney's fees incurred by Landlord, its outside counsel, if
any, or counsel for Landlord's lender if such lender's consent should be
required, in the preparing, reviewing, negotiating and/or processing of
documentation in connection with the requested assignment or subletting
irrespective of whether or not consent is given to such assignment or
subletting.
ARTICLE XXII DAMAGE OR DESTRUCTION
Section 22.1 - Landlord's Obligation to Repair and Reconstruct .
(a) Subject to Section 22.2, if the Premises shall be partially damaged by
fire or other casualty but are not thereby rendered untenantable in any manner,
Landlord shall cause the Premises to be repaired, subject to Subsection (c)
herein, and the Fixed Minimum Rent and Additional Charges shall not be abated.
If by reason of such occurrence the Premises shall be rendered untenantable only
in part, Landlord shall cause the Premises to be repaired, subject to Subsection
(c) herein and to Section 22.2, and the Fixed Minimum Rent and Additional
Charges shall be abated proportionately as to the portion of the Premises
rendered untenantable until the earlier to occur of one hundred ten (110) days
after Landlord's restoration work has been substantially completed or the date
the Premises so repaired has reopened for business.
(b) Subject to Section 22.2, if the Premises shall be rendered wholly
untenantable by reason of such occurrence, Landlord shall cause the Premises to
be repaired, subject to Subsection (c) herein, and the Fixed Minimum Rent and
Additional Charges shall be abated until the earlier to occur of one hundred ten
(110) days after Landlord's restoration work has been substantially completed or
the date the Premises so repaired has reopened for business.
(c) If Landlord is required or elects to repair or reconstruct the Premises
under the provisions of this Article XXII, its obligation shall be limited to
that work with respect to the Premises which was Landlord's obligation to
perform for Tenant at the commencement date of this Lease. Tenant, at Tenant's
expense, shall promptly perform all repairs and restoration not required to be
done by Landlord and shall promptly refixture and reconstruct the Premises and
recommence business in all parts thereof.
(d) Tenant shall not be entitled to any compensation or damages, other than
stated herein, from Landlord for the loss of the use of the whole or any part of
the Premises or damage to Tenant's personal property or any inconvenience or
annoyance occasioned by such damage, repair, reconstruction or restoration.
Section 22.2 - Option to Terminate . If (1) the Premises are rendered
wholly untenantable or damaged as a result of any cause which is not covered by
Landlord's actual insurance or Landlord's required insurance under Section
17.3(b); (2) the Premises are damaged or destroyed to the extent of twenty-five
percent (25%) or more of the cost of replacement during the last two (2) Lease
Years of the Term; (3) the Premises are damaged or destroyed in whole or in part
during the last Lease Year of the Term; or (4) the Shopping Center or Resort is
damaged to the extent of ten percent (10%) or more of the cost of replacement,
then in any of such events, Landlord may elect to terminate this Lease by giving
to Tenant notice of such election within ninety (90) days after the occurrence
of such event and, in the case of clause (2) or clause (3), Tenant may elect to
terminate this Lease by giving to Landlord notice of such election within thirty
(30) days after the occurrence of such event. If such notice is given, this
Lease shall terminate as of the date of such notice, and Fixed Minimum Rent and
Additional Charges shall be equitably abated until and adjusted as of the date
of such termination. Notwithstanding the foregoing provisions, Landlord shall
not terminate this Lease solely pursuant to clause (4) of this Section 22.2
unless Landlord terminates the leases of all other similarly situated tenants in
the Shopping Center. Notwithstanding the foregoing provisions, if Landlord
terminates this Lease solely pursuant to clause (2) or clause (3) in this
Section 22.2, and if at the time Tenant received notice of such termination
Tenant's option to extend the Term of this Lease under Section 9.5 may still be
validly exercised, then Tenant may nullify Landlord's termination notice, and
require Landlord to repair the Premises in accordance with Section 22.1, by
exercising such option by giving Landlord written notice of such exercise within
thirty (30) days after Tenant's receipt of Landlord's notice of termination.
Tenant hereby waives any statutory rights of termination which may arise
out of partial or total destruction of the Premises which Landlord is obligated
to restore.
Section 22.3 - Demolition of Landlord's Building . If the Shopping Center
is so substantially damaged that it is reasonably necessary, in Landlord's
judgment, to demolish a portion of the said Shopping Center, including the
Premises, for the purpose of reconstruction, Landlord may demolish the Premises,
in which event Tenant's Fixed Minimum Rent and Additional Charges shall be
abated until the earlier to occur of one hundred ten (110) days after Landlord's
restoration work has been substantially completed or the date the Premises so
restored has reopened for business.
Section 22.4 - Damage to Shopping Center . If the Shopping Center, or any
portion thereof, is damaged or destroyed and as a result thereof Tenant is
denied reasonable access to the Premises and/or the Common Areas and as a result
is unable to operate its business in the Premises and in fact ceases such
operation, then, whether or not the Premises was damaged or destroyed, all Rent
shall xxxxx from the date of the casualty until Tenant regains such access.
ARTICLE XXIII CONDEMNATION
Section 23.1 - Effect of Taking .
(a) In the event that the whole or any part of the Premises shall be taken
for public or quasi-public use or condemnation under eminent domain, this Lease
shall terminate as to the part so taken on the date possession is yielded to the
condemning authority.
(b) In the event that any portion of the Resort, Shopping Center or Common
Areas is taken and such taking substantially impairs access to or the usefulness
of the Premises for the purposes hereinbefore granted to Tenant, either party
may terminate the Lease by written notice within thirty (30) days prior to the
actual physical taking.
(c) For the purposes of this Article, a voluntary sale, conveyance or deed
in lieu of condemnation, but under threat of condemnation, shall be deemed an
appropriation or taking under the power of eminent domain. (d) If this Lease has
not been terminated as above provided following any of such actual takings, then
Landlord shall, at its expense, make all necessary repairs or alterations to the
basic building and exterior work so as to constitute the remaining Premises a
complete architectural unit and a proportionate allowance shall be made in the
Fixed Minimum Rent and Additional Charges based on the proportion of the
Premises remaining as compared to the original Premises.
Section 23.2 - Compensation and Awards . All compensation awarded for any
taking of the fee and the leasehold, or any part thereof, shall belong to and be
the property of Landlord. Tenant hereby assigns to Landlord all right, title and
interest of Tenant in and to any award made for leasehold damages and/or
diminution in the value of Tenant's leasehold estate. Tenant shall have the
right to claim such compensation as may be separately awarded or allocated by
reason of the cost or loss to which Tenant might be put in removing Tenant's
merchandise, fixtures, leasehold improvements and equipment. Compensation as
used in this Section 23.2 shall mean any award given to Landlord for such taking
in excess of, and free and clear of, all prior claims of the holders of any
mortgages or other security interests.
Section 23.3 - Condemnation or Breach of Lease . Any such appropriation or
condemnation proceedings shall not operate as or be deemed an eviction of Tenant
or a breach of Landlord's covenant of quiet enjoyment.
Tenant hereby waives any statutory rights of termination which may arise by
reason of any partial taking of the Premises under the power of eminent domain.
ARTICLE XXIV DEFAULT
Section 24.1 - Events of Default . Each of the following shall be
considered an "Event of Default" and shall give rise to and entitle Landlord to
the remedies provided for in Section 24.2, as well as any and all other
remedies, whether at law or in equity, provided for or otherwise available to
Landlord or as otherwise provided for in this Lease:
(a) Tenant shall default in the payment of any Rents or charges, or in the
payment of any other sums of money required to be paid by Tenant to Landlord
under this Lease, or as reimbursement to Landlord for sums paid by Landlord on
behalf of Tenant in the performance of the covenants of this Lease, and said
default is not cured within ten (10) days after receipt of written notice
thereof from Landlord.
(b) Tenant shall default in the performance of any other covenants, terms,
conditions, provisions, rules and regulations of this Lease excepting those
items listed in the above section (a) and such default is not cured within
thirty (30) days after written notice thereof given by Landlord, excepting such
defaults that cannot be cured completely within such thirty (30) day period
providing Tenant, within said thirty (30) day period, has promptly commenced to
proceed with diligence and in good faith to remedy such default.
(c) There is commenced any case in bankruptcy against the original named
Tenant, any assignee or subtenant of the original named Tenant, any then
occupant of the Premises or any guarantor of all or any of Tenant's obligations
hereunder (collectively "Key Persons") or an order for relief is entered with
respect to any Key Person or there is appointed a receiver or trustee to take
possession of any of the assets at the Premises of any Key Person or the
Premises or any Key Person applies for or consents to such appointment, or there
is a general assignment by any Key Person for the benefit of creditors, or any
action is taken by or against any Key Person under any state or federal
insolvency or bankruptcy act, or any similar law now or hereafter in effect or
any property at the Premises of any Key Person is taken or seized under levy of
execution or attachment, or any Key Person admits in writing its inability to
pay its debts as they mature; provided, however, that if there is commenced any
involuntary case in bankruptcy against a Key Person, such commencement shall not
constitute an Event of Default if the same is dismissed within sixty (60) days
of such commencement.
(d) The sale of Tenant's interest in the Premises under attachment,
execution or similar legal process.
(e) Tenant should vacate or abandon the Premises or shall fail to operate
its business on the days and hours required, or fails to continuously occupy and
conduct Tenant's business in the Premises.
All cure periods provided in this Lease shall run concurrently with any
periods provided by law.
Section 24.2 - Remedies and Damages .
(a) If any Event of Default occurs, Landlord may, at its option and in
addition to any and all other rights or remedies provided Landlord in this Lease
or at law or equity, immediately, or at any time thereafter, and without demand
or notice (except as provided herein):
(i) without waiving the Event of Default, apply all or part of the security
deposit, if any, to cure the Event of Default and Tenant shall on demand restore
the security deposit to its original amount;
(ii) without waiving such Event of Default, apply thereto any overpayment
of Rents to curing the Event of Default in lieu of refunding or crediting the
same to Tenant;
(iii) if the Event of Default pertains to work or other obligations (other
than the payment of Rents) to be performed by Tenant, without waiving such Event
of Default, enter upon the Premises and perform such work or other obligation,
or cause such work or other obligation to be performed, for the account of
Tenant; and Tenant shall on demand pay to Landlord the cost of performing such
work or other obligation plus fifteen percent (15%) thereof as administrative
costs;
(iv) declare the term of this Lease ended and re-enter the Premises and
take possession thereof, terminate all of the rights of Tenant in and to the
Premises and accelerate all rents and other charges owing during the remaining
portion of the Lease Term.
(b) Notwithstanding any termination of this Lease or termination of
Tenant's rights to possession, whether by summary proceedings or otherwise,
Tenant shall pay and be liable for (on the days originally fixed herein for the
payment thereof) the several installments of Rent as if this Lease had not been
terminated and as if Landlord had not entered and whether the Premises are relet
or remain vacant in whole or in part, but in the event the Premises is relet by
Landlord, Tenant shall be entitled to a credit in the net sum of Rents received
by Landlord in reletting after deduction of all expenses incurred in reletting
the Premises, and in collecting such Rents.
(c) In the event of a reletting, Landlord may apply the rent therefrom
first to the payment of Landlord's reasonable expenses including but not limited
to attorney's fees incurred, expense of reletting, repairs, brokerage fees,
subdividing, renovation or alteration of the Premises and then to the payment of
Rent and all other sums due from Tenant hereunder, and Tenant shall remain
liable for any deficiency.
(d) In computing damages or rental due under this Lease, the value of the
Percentage Rent for any period subsequent to the termination of this Lease, or
the termination of Tenant's right of possession, shall be included and shall be
an amount per year equal to one-third of the total Percentage Rent chargeable to
Tenant for the last three (3) full Lease Years immediately preceding such
termination, and if less than three (3) full Lease Years shall have elapsed,
such value shall be an amount per year equal to the average yearly Percentage
Rent theretofore payable by Tenant.
(e) Landlord shall use commercially reasonable efforts to mitigate its
damages resulting from any Event of Default.
Section 24.3 - Repeated Default .
(a) Notwithstanding anything to the contrary set forth in this Lease, if
(i) Tenant shall be in default in the timely payment of any Rents due Landlord
from Tenant or the payment of any other money due Landlord from Tenant under the
terms of this Lease, or in the timely reporting of Gross Revenue as required by
Section 11.5 of this Lease, (ii) any such default shall be repeated three (3)
times in any period of twelve (12) consecutive months, and (iii) Landlord shall
have notified Tenant of each such default, then, notwithstanding that such
default shall have been cured within the period after notice, as provided in
this Lease, any further similar default within said twelve (12) month period
shall be deemed to be a "Repeated Event of Default."
(b) In the event of a Repeated Event of Default, Landlord, without giving
Tenant any notice and without affording Tenant an opportunity to cure the
default may terminate this Lease forthwith without notice to Tenant.
Section 24.4 - Waiver of Rights of Redemption . Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of the Premises by reason of
the violation, by Tenant, of any of the covenants or conditions of this Lease,
or otherwise.
Section 24.5 - Removal of Tenant . Pursuant to the rights of re-entry
provided above, Landlord may remove all persons from the Premises and may, but
shall not be obligated to, remove all property therefrom, and may, but shall not
be obligated to, enforce any rights Landlord may have against said property or
store the same in any public or private warehouse or elsewhere at the cost and
for the account of Tenant or the owner or owners thereof. Tenant agrees to hold
Landlord free and harmless from any liability whatsoever for the removal and
storage of any such property, whether of Tenant or any third party whomsoever.
Anything contained herein to the contrary notwithstanding, Landlord shall not be
deemed to have terminated this Lease or the liability of Tenant to pay any Rent
or other sum of money thereafter to accrue hereunder, or Tenant's liability for
damages under any of the provisions hereof, by any such reentry, or by any
action in unlawful detainer or otherwise to obtain possession of the Premises,
unless Landlord shall have specifically, with reference to this Section 24.5,
notified Tenant in writing that it has so elected to terminate this Lease.
Tenant covenants and agrees that the service by Landlord of any notice pursuant
to the unlawful detainer statutes of the State of Nevada and the surrender of
possession pursuant to such notice shall not (unless Landlord elects to the
contrary at the time of, or at any time subsequent to, the service of such
notice to Tenant) be deemed to be a termination of this Lease, or the
termination of any liability of Tenant hereunder to Landlord.
Section 24.6 - Default by Landlord . In the event Landlord fails or refuses
to perform any of the provisions, covenants or conditions of this Lease on
Landlord's part to be kept or performed, Tenant, prior to exercising any right
or remedy Tenant may have against Landlord on account of such default, shall
give written notice to Landlord and, if Tenant has been notified of the name and
notice address of such Lender, Landlord's lender of such default, specifying in
said notice the default with which Landlord is charged and Landlord shall not be
deemed in default if the same is cured within thirty (30) days of receipt of
said notice. Notwithstanding any other provision hereof, Tenant agrees that if
the default complained of in the notice provided for by this Section 24.6 is of
such a nature that the same can be rectified or cured by Landlord, but cannot
with reasonable diligence be rectified or cured within said thirty (30) day
period, then such default shall be deemed to be rectified or cured if Landlord
within said thirty (30) day period (or Landlord's lender in a longer reasonable
time) shall commence the rectification and curing thereof and shall continue
thereafter with all due diligence to cause such rectification and curing to
proceed.
ARTICLE XXV COMPETITION
Section 25.1 - Restriction on Tenant . Tenant agrees that for as long as
this Lease shall remain in effect, Tenant, and if Tenant is not a natural
person, its members, partners, officers, directors, shareholders (or similar
entities) or any affiliates, shall not directly or indirectly operate, manage,
or have any interest in any business (unless such business is already in
operation on the date of this Lease) which is similar or in competition with the
use set forth in Section 1.0(t) ("Competing Store"), within the area of Xxxxx
County, Nevada commonly referred to as "The Las Vegas Strip" and more
specifically described as Las Vegas Boulevard north from Tropicana Avenue to
Spring Mountain Road, east from Las Vegas Boulevard to Xxxxx Xxxx and west from
Las Vegas Boulevard to Industrial Road ("Restricted Area"). The operation by
Tenant of a Competing Store within the Resort shall not constitute a violation
of this Section 25.1 or result in any decrease in the Percentage Rent
breakpoints set forth in Section 1.0(h).
Section 25.2 - Imposition of Damages . In the event that Tenant shall
violate this covenant, Landlord may, at its option, without limiting Landlord's
remedies, effective as of the date such Competing Store opens for business
within the Restricted Area, pursue any and/or all of the following remedies in
its sole and absolute discretion: (i) include seventy-five percent (75%) of the
Gross Revenues of the Competing Store(s) in the Gross Revenues generated from
the Premises for the purpose of computing Percentage Rent due hereunder; or (ii)
increase Tenant's Fixed Minimum Rent to the average of the annual "effective"
(aggregate of Fixed Minimum Rent and Percentage Rent) rent paid by Tenant to
Landlord during the immediately preceding two (2) Lease Years; or (iii) increase
Tenant's Fixed Minimum Rent then in effect as well as any future increases in
Fixed Minimum Rent by fifty percent (50%).
ARTICLE XXVI NOTICES
Section 26.1 - Notices to Tenant and Landlord . Any and all notices and
demands by or from Landlord to Tenant, or by or from Tenant to Landlord,
required or desired to be given hereunder shall be in writing and shall be
validly given or made if served either personally or if deposited in the United
States mail, certified or registered, postage prepaid, return receipt requested,
or if delivered by a nationally recognized next day delivery courier service. If
such notice or demand be served by registered or certified mail or by courier
service in the manner provided, service shall be conclusively deemed given the
first business day delivery is attempted or upon receipt, whichever is sooner.
Notices shall be addressed in accordance with Section 1.0(v) above. Either party
may change its address for the purpose of receiving notices or demands as herein
provided by a written notice given in the manner aforesaid to the other party
hereto, which notice of change of address shall not become effective, however,
until the actual receipt thereof by the other party.
Section 26.2 - Notices to Mortgagee . Provided Tenant has been notified of
the name and notice address thereof, Tenant shall give Landlord's mortgagee
("Mortgagee") written notice of any alleged default which could give rise to
Tenant's termination of the Lease or expenditure of money on behalf of Landlord.
Such Mortgagee shall also be given an appropriate time to cure such default
including the opportunity to obtain possession of Landlord's interest, if
necessary, to cure the default. Landlord shall notify Tenant in writing of any
change in the Mortgagee (and its notice address) for the Shopping Center.
ARTICLE XXVII MISCELLANEOUS
Section 27.1 - Accord and Satisfaction . No payment by Tenant or receipt by
Landlord of a lesser amount than any payment of Rents herein stipulated shall be
deemed to be other than on account of the earliest stipulated Rents, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment of Rents be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rents or pursue any other remedy provided for in this Lease
or available at law or in equity.
Section 27.2 - Complete Agreement . The parties hereto acknowledge that all
of the terms and covenants contained herein were reviewed by both parties and/or
their counsel hereto and all negotiations, consideration, representations,
inducements and understandings between the parties are incorporated herein, and
may be modified or altered only by agreement, in writing, between the parties.
This Lease contains the entire agreement between the parties hereto, and no
agent, representative, employee or officer of Landlord has or had authority to
make or has made any statement, agreement or representation, either oral or
written, in connection herewith, modifying, adding or changing the terms and
conditions herein set forth. No present or past dealings or custom between the
parties shall be permitted to contradict or modify the terms hereof. No
modification of this Lease shall be binding unless such modification shall be in
writing and signed by the parties hereto. Unless otherwise expressly set forth
in writing herein, Tenant acknowledges that there are no agreements, promises,
representations, warranties or covenants by Landlord or its agents or employees
as to the following types of matters, including, without limitation: (i)
exclusive rights to sell goods and/or services; (ii) limitations on or
restrictions against competing businesses in the Shopping Center; (iii) the
future opening of other stores or businesses; (iv) expected per square foot or
total sales from the Premises; (v) type or quality of existing or prospective
tenants located or to be located in the Shopping Center; (vi) work to be
performed by Landlord in improving Tenant's Premises; (vii) contribution by
Landlord towards Tenant's leasehold improvement costs; (viii) that Tenant's
annual Proportionate Share of CAM Costs or real estate taxes will not exceed a
certain amount per square foot of Premises GLA during the Term hereof; or (ix)
promotion and/or advertising of Tenant's business and/or products or services.
Section 27.3 - Governing Law . The laws of the State of Nevada shall govern
the validity, construction, performance and effect of this Lease. Any legal
suit, action or proceeding against Landlord or Tenant arising out of or relating
to this Lease shall be instituted in any federal or state court in Xxxxx County,
Nevada, and each party waives any objection which it may now or hereafter have
to the laying of venue of any such suit, action or proceeding, and each party
hereby irrevocably submits to the jurisdiction of any such court in any suit,
action or proceeding.
Section 27.4 - Compliance with Governmental Authorities . Tenant, at its
own expense, shall comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal authorities
now in force or which hereafter may be in force ("Requirements"), which shall
impose any duty upon Landlord or Tenant with respect to the initial improvement,
use, occupation or alteration of the Premises by Tenant, including, but not
limited to, Requirements of the ADA which may be applicable thereto; provided,
however, that Tenant shall not be required to make any alteration required by
any Requirement to any portion of the Premises that Landlord is required to
maintain under Section 15.1 unless such alteration is required due to Tenant's
particular use of the Premises. Tenant agrees to indemnify and save Landlord
harmless from and against any penalty, damage or charge imposed for any
violation by Tenant, its assignees, subtenants, licensees, agents and employees
of any said Requirements.
Section 27.5 - Brokerage . Tenant and Landlord each warrants to the other
that it has had no dealings with any broker or agent in connection with the
Lease, except BDH Associates, whose commission shall be paid by Tenant, and
Blatteis Realty Company, Inc., whose commission shall be paid by Landlord.
Tenant and Landlord covenant and agree to pay, hold harmless and indemnify the
other from and against any and all costs, expenses or liability for any
compensation, commissions and charges claimed by any broker or agent alleging to
have dealt with the indemnifying party with respect to this Lease or the
negotiation hereof (including, without limitation, the cost of legal fees in
connection therewith).
Section 27.6 - Effective Date of Lease . Submission of this Lease by
Landlord for examination or execution by Tenant does not constitute a
reservation of nor option for Lease, and this instrument shall not become
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant. This Lease shall only become effective and binding upon the
parties in establishing the relationship of Landlord and Tenant as of the date
first written above, but not earlier than the date Landlord
----------------------- executes this Lease.
Section 27.7 - Estoppel Certificates . Tenant agrees at any time, upon not
less than fifteen (15) days prior written request by Landlord, to execute,
acknowledge and deliver to Landlord a written statement certifying that this
Lease is unmodified and in full force and effect (or, if there has been
modifications, that the same is in full force as modified and stating the
modifications), the dates to which the Rents have been paid in pursuant to this
Lease and such other certification concerning the Lease as may be reasonably
required by Landlord or Landlord's mortgagee. Tenant further agrees that such
statement may be relied upon by any mortgagee or prospective purchaser of the
fee or assignee of any mortgage on the fee of the Premises.
Section 27.8 - Force Majeure . Landlord and/or Tenant shall be excused for
the period of delay in the performance of any of their respective obligations
hereunder, except their respective obligation to pay any sums of money due under
the terms of this Lease, and shall not be considered in default, when prevented
from so performing by cause or causes beyond Landlord's or Tenant's control,
including, but not limited to, all labor disputes, civil commotion, war, fire or
other casualty, governmental regulations, statutes, ordinances, restrictions or
decrees, or through acts of God.
Section 27.9 -Partial Invalidity . If any term, covenant or condition of
this Lease, or any application thereof, should be held by a court of competent
jurisdiction to be invalid, void or unenforceable, all terms, covenants and
conditions of this Lease, and all applications thereof, not held invalid, void
or unenforceable, shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
Section 27.10 - Memorandum of Lease . This Lease shall not be recorded, but
either party may record a memorandum of lease describing the Premises herein
demised, giving the Term of this Lease, and referring to this Lease. The party
requesting that the Memorandum of Lease be recorded shall prepare and pay all
costs of preparation and recording of the Memorandum of Lease and the other
party agrees to execute at any and all times such instruments as may be
reasonably required for such recording. Tenant shall execute such documents as
Landlord may require, in recordable form, upon the expiration or earlier
termination of the Term of this Lease in order to remove the memorandum of lease
from record.
Section 27.11 - Quiet Enjoyment . Subject to the terms and conditions of
this Lease and to any Encumbrances to which this Lease is subordinate pursuant
to Section 19.1, Landlord hereby covenants and agrees that if Tenant shall
perform all of the covenants and agreements herein stipulated to be performed on
Tenant's part, Tenant shall at all times during the continuance hereof have the
peaceful and quiet enjoyment and possession of the Premises without any manner
of hindrance from Landlord or any person or persons lawfully claiming the
Premises, save and except in the event of the taking of the Premises by public
or quasi-public authority as hereinbefore provided.
Section 27.12 - Rent Demand . Every demand for Rents due wherever and
whenever made shall have the same effect as if made at the time it falls due and
at the place of payment, and after the service of any notice or commencement of
any suit, or final judgment therein, Landlord may receive and collect any Rents
due, and such collection or receipt shall not operate as a waiver of nor affect
such notice, suit or judgment.
Section 27.13 - Section Headings . The section headings and title headings
contained herein are for convenience only and do not define, limit, construe or
amplify the contents of such Sections.
Section 27.14 - Successors and Assigns . The conditions, covenants and
agreements contained in this Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
Section 27.15 - Waiver .
(a) Landlord and Tenant shall have the right at all times to enforce the
covenants, conditions and legal rights or remedies of this Lease in strict
accordance with the terms thereof, notwithstanding any conduct or custom on the
part of Landlord or Tenant in refraining from so doing at any time or times. No
failure by Landlord or Tenant to insist upon the strict performance of any term
or condition of this Lease or to exercise any right or remedy available, legal
or equitable, for a breach thereof, and no acceptance of full or partial Rents
during the continuance of any such breach shall constitute a waiver of any such
breach or any such term, condition or right.
(b) No term or condition of this Lease required to be performed by Landlord
or Tenant, and no breach thereof, shall be waived, altered or modified except by
a written instrument executed by the other party.
(c) A waiver by Landlord in respect to any tenant of the Shopping Center in
which the Premises are located shall not constitute a waiver in favor of any
other tenant, nor shall the waiver of the breach of any condition be claimed if
pleaded to excuse a future breach of the same condition or covenant or any other
condition, covenant, provision, rule and regulation of this Lease.
Section 27.16 - Exculpation . If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlord's part to be performed
and, as a consequence of such default, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon the execution of such judgment and levy thereon against the
right, title and interest of Landlord in the Shopping Center and out of rents or
other income from the Shopping Center receivable by Landlord or out of the
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord's right, title and interest in the Shopping Center. Neither
Landlord nor any of the partners, beneficiaries, officers, directors, venturers,
shareholders or affiliated entities of Landlord shall be personally liable for
any deficiency.
Section 27.17 - Transfer of Landlord's Interest . Landlord shall be liable
under this Lease only while owner of the Premises. If Landlord should sell or
otherwise transfer Landlord's interest in the Premises, then such
purchaser/transferee shall be responsible for all of the covenants and
undertakings thereafter accruing of Landlord. Tenant agrees that Landlord shall,
after such sale or transfer of Landlord's interest, have no liability to Tenant
under this Lease or any modification or amendment thereof, or extensions or
renewals thereof, except for such liabilities which might have accrued prior to
the date of such sale or transfer of Landlord's interest to such
purchaser/transferee.
Section 27.18 - Time of the Essence . Time is of the essence of this Lease
and all of the terms, covenants and conditions hereof.
Section 27.19 - Remedies Cumulative . The various rights, options,
elections and remedies contained in this Lease shall be cumulative and no one of
them shall be construed as exclusive of any other, or of any right, priority or
remedy allowed or provided for by law and not expressly waived in this Lease.
Section 27.20 - Joint Liability . In the event Tenant now or hereafter
shall consist of more than one person, firm or corporation, then and in such
event, all such persons, firms or corporations shall be jointly and severally
liable as Tenant hereunder.
Section 27.21 - Drafting . This Lease shall not be construed either for or
against Landlord or Tenant, but shall be interpreted in accordance with the
general tenor of its language.
Section 27.22 - Perpetuities . If for any reason the Rent Commencement Date
has not occurred within three (3) years of the date hereof, this Lease shall
thereupon terminate and be of no further force or effect (except with respect to
matters that arose before such termination).
ARTICLE XXVIII DISPUTE RESOLUTION
If any controversy or claim between the parties, other than Landlord's
claim of unlawful detainer or a proceeding for summary eviction for failure to
pay Fixed Minimum Rent, arises out of this Lease, and the parties are unable to
agree by direct negotiations, the parties shall promptly mediate any such
disagreement or dispute under the Commercial Mediation Rules of the American
Arbitration Association. If the parties are unable to resolve such disagreement
or dispute through mediation, then such disagreement or dispute (excluding an
action by Landlord in unlawful detainer or summary proceeding, as provided
above) shall be submitted to binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association.
The arbitrators shall be appointed under the Commercial Arbitration Rules
of the American Arbitration Association. As soon as the panel has been convened,
a hearing date shall be set within twenty-one (21) days thereafter. Written
submittals shall be presented and exchanged by both parties ten (10) days before
the hearing date, including reports prepared by experts upon whom either party
intends to rely. At such time the parties will also exchange copies of all
documentary evidence upon which they will rely at the arbitration hearing and a
list of the witnesses whom they intend to call to testify at the hearing. Each
party shall also make its respective experts available for deposition by the
other party prior to the hearing date. The hearings shall be concluded no later
than five (5) days after the initial hearing date. The arbitrators shall make
their award within ten (10) business days after the conclusion of the hearing.
In the event of a three-member panel, the decision in which two (2) of the
members of the arbitration panel concur shall be the award of the arbitrators.
Except as otherwise specified herein, there shall be no discovery or
dispositive motion practice (such as motions for summary judgment or to dismiss
or the like) except as may be permitted by the arbitrators, who shall authorize
only such discovery as is shown to be absolutely necessary to insure a fair
hearing and no such discovery or motions permitted by the arbitrators shall in
any way conflict with the time limits contained herein. The arbitrators shall
not be bound by the rules of evidence or civil procedure, but rather may
consider such writings and oral presentations as reasonable businessmen would
use in the conduct of their day-to-day affairs, and may require the parties to
submit some or all of their presentation as the arbitrators may deem
appropriate. It is the intention of the parties to limit live testimony and
cross-examination to the extent absolutely necessary to insure a fair hearing to
the parties on the significant matters submitted to arbitration. The parties
have included the foregoing provisions limiting the scope and extent of the
arbitration with the intention of providing for prompt, economic and fair
resolution of any dispute submitted to arbitration.
The arbitrators shall have the discretion to award the costs of
arbitration, arbitrators' fees and the respective attorneys' fees of each party
between the parties as they see fit.
Judgment upon the award entered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
Notwithstanding the parties' agreement to mediate or arbitrate their
disputes as provided herein, any party may seek emergency relief in a court of
law without waiving the right to arbitrate.
The arbitrators shall make their award in accordance with applicable
law and based on the evidence presented by the parties, and at the request of
either party at the start of the arbitration, shall include in their award
findings of fact and conclusions of law supporting the award.
Nothing contained herein is intended to, nor shall, limit Landlord's right
to pursue any action in unlawful detainer in the case of an Event of Default by
Tenant.
IN WITNESS WHEREOF, the parties hereto have executed these presents, the
day and year first written above. Grand Canal Shops Mall Construction, LLC, a
Delaware limitedToysbInternational, a California corporation
By: Venetian Casino Resort, LLC, a Nevada limited liability company, its member
By: ___________
By: Las Vegas Sands, Inc., a Nevada corporation, its member
Name:_______________
By: _______________________
Name: _______________________ Its: _______________
Its: _______________________
GUARANTY
GUARANTY OF LEASE dated July 22, 1998, by and between Grand Canal Shops
Mall Construction, LLC, a Delaware limited liability company, as Landlord, and
Toys International, a California corporation, as Tenant.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
undersigned Guarantor hereby unconditionally and irrevocably guarantees the full
and faithful performance by Tenant of all the terms, covenants and conditions of
the above-referenced Lease. This Guaranty shall remain in full force and effect
regardless of any amendment, modification, extension, compromise or release of
any term, covenant or condition of the Lease or of any party thereto, as the
case maybe. The undersigned agrees to indemnify Landlord against any and all
liability, loss, costs, charges, penalties, obligations, expenses, attorneys'
fees, litigation, judgments, damages, claims and demands of any kind whatsoever
in connection with, arising out of or by reason of the assertion by Tenant of
any defense to its obligations under the Lease or the assertion by Guarantor of
any defense to its obligations hereunder. Guarantor waives any right or claim or
rights to cause a marshaling of Tenant's assets or to proceed against Guarantor
or Tenant or any security for the Lease or this Guaranty in any particular order
and Guarantor agrees that any payments or performance required to be made
hereunder shall become due upon demand in accordance with the terms hereof
immediately upon the happening of a default under the Lease, whether or not
Guarantor has been given notice of such default, and Guarantor hereby expressly
waives and relinquishes all rights and remedies accorded by applicable law to
guarantors, including, but not limited to, notice of demand, notice of default,
any failure to pursue Tenant or its property, any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation and any
defense arising by reason of any defense of Tenant or by reason of the cessation
of the liability of Tenant or any defense by reason of the assertion by Landlord
against Tenant of any of the rights or remedies reserved to Landlord pursuant to
the provisions of the Lease, or by reason of summary or other proceedings
against Tenant.
No delay on Landlord's part in exercising any right, power or privilege
under this Guaranty or any other document executed in connection herewith shall
operate as a waiver of any such privilege, power or right.
Guarantor agrees that any judgment rendered against Tenant for monies or
performance due Landlord shall in every and all respects bind and be conclusive
against Guarantor to the same extent as if Guarantor had appeared in any such
proceedings and judgment therein had been rendered against Guarantor.
Guarantor subordinates to Tenant's obligations to Landlord all indebtedness
of Tenant to Guarantor, whether now existing or hereafter contracted, whether
direct or indirect, contingent or determined. With respect to any such
indebtedness of Tenant to Guarantor, Guarantor further agrees to make no claim
therefor until any and all obligations of Tenant to Landlord shall have been
discharged in full and Guarantor further covenants and agrees not to assign all
or any part of such indebtedness while this Guaranty remains in effect.
The terms, covenants and conditions contained in this Guaranty shall inure
to the benefit of the successors and assigns of Landlord.
If any term, covenant or condition of this Guaranty, or any application
thereof, should be held by a court of competent jurisdiction to be invalid, void
or unenforceable, all terms, covenants and conditions of this Guaranty, and all
applications thereof not held invalid, void or unenforceable shall continue in
full force and effect and shall in no way be affected, impaired or invalidated
thereby. In this Guaranty, whenever the context so requires, the masculine
gender includes the feminine and/or neuter, and the singular number includes the
plural.
This Guaranty shall be construed in accordance with its intent and without
regard to any presumption or other rule requiring construction against the party
causing the same to be drafted. The laws of the State of Nevada shall govern the
validity, construction, performance and effect of this Guaranty.
Should Guarantor consist of more than one person or entity, then, in such
event, all such persons and entities shall be jointly and severally liable as
Guarantor hereunder. In any action brought by Landlord to enforce any of its
rights under or arising from this Guaranty, Landlord shall be entitled to
receive its costs and legal expenses including reasonable attorneys' fees,
whether such action is prosecuted to judgment or not. If Landlord shall engage
the services of any attorney for the purpose of collecting any rental due from
Tenant, having first given Tenant five (5) days' notice of its intention so to
do, Tenant shall pay the reasonable fees of such attorney for his services
regardless of the fact that no legal proceeding or action may have been filed or
commenced. Dated this 22nd day of July, 1998.
GUARANTOR: PLAY CO. TOYS & ENTERTAINMENT CORP.,
a Delaware corporation
By:
Name:
Its:
EXHIBIT "A"
Site Plan
See Attached
EXHIBIT "B"
Premises
See Attached
EXHIBIT "C"
Chargebacks
See Attached
EXHIBIT "GCS1.0"
Tenant Handbook
(Not attached)
