LEASE AGREEMENT
BETWEEN
URBAN LAND OF NEVADA, INC.
AND
ALL-AMERICAN SPORTPARK, INC.
JUNE 1997
When recorded return to:
Urban Land of Nevada, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
MEMORANDUM OF LEASE
Urban Land of Nevada, Inc., a Nevada corporation (hereinafter called
"Landlord"), hereby demises and leases to All-American SportPark, Inc., a
Nevada corporation, (herein called "Tenant"), and Tenant hereby takes and
leases 23.61 acres of land from Landlord upon the terms and conditions and
subject to the limitations more particularly set forth in a certain Lease
Agreement between Landlord and Tenant dated June 13, 1997, (hereinafter
referred to as the "Agreement"), the 23.61 acre tract of land described in
Exhibit "A" hereto to have and to hold the same for a term to commence as the
date determined by the Agreement and to expire upon the expiration of fifteen
(15) years from the date determined by the Agreement. Under the terms of the
Agreement, Tenant has two (2) options to extend the term of this Agreement for
an additional five (5) years each. This Memorandum of Lease is prepared for
the purpose of recordation and shall not alter or effect in any way the rights
and obligations under the Agreement. In the event of any inconsistency between
this Memorandum of Lease and the Agreement, the terms of the Agreement shall
control.
Dated this 20th day of June, 1997.
LANDLORD: TENANT:
Urban Land of Nevada, Inc. All-American SportPark, Inc.,
a Nevada corporation a Nevada corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
STATE OF NEVADA )
) SS.
COUNTY OF ▇▇▇▇▇ )
On this 20th day of June, 1997, personally appeared before me, a notary
public, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇, President of Urban Land of Nevada, Inc., a Nevada
corporation, personally known (or proved) to me to be the person whose name is
subscribed to the foregoing instrument and who acknowledged that he/she
executed the instrument.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public
STATE OF NEVADA )
) SS.
COUNTY OF ▇▇▇▇▇ )
On this 19th day of June, 1997, personally appeared before me, a notary
public, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President of All-American SportPark, Inc., a Nevada
corporation, personally known (or proved) to me to be the person whose name is
subscribed to the foregoing instrument and who acknowledged that he/she
executed the instrument.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
EXHIBIT "A"
ALL-AMERICAN SPORTPARK
Proposed Lease Area 2
[MAP]
EXHIBIT "B"
ESI ENGINEERS AND
SURVEYORS, INC.
4/7/97
EXPLANATION: Proposed property description for LEASE AREA 1
BASIS OF BEARING:
The basis of bearing for this property description is the northerly line of
the Northwest Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇.▇.▇, ▇▇▇▇▇▇ of ▇▇▇▇▇, State of Nevada, which bears South 88o 55' 29" West,
as per map recorded in File 59, Page 55 of Surveys in the Office of the County
Recorded of said County.
Being a portion of the Northwest Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇▇ of ▇▇▇▇▇, State of Nevada, more
particularly described as follows:
COMMENCING at the northwest corner of said Section 4, said point being the
centerline intersection of Las Vegas Boulevard South (SR-91) and Sunset Road;
Thence along the northerly line thereof, said line also being the certerline
of said Sunset Road, North 88o 50' 29" East, 159.45 feet;
Thence departing said line, South 01o 09' 31" East, 50.00 feet to a point on
the southerly right-of-way line of Sunset Road, being 50.00 feet wide as
described in Deed recorded April 27, 1972 in Book 226, Instrument No. 185689,
Official Records, said point also being in the POINT OF BEGINNING;
Thence along said right-of-way line, North 88o 50; 29" East, 856.78 feet;
Thence departing said right-of-way line, South 01o 09' 31" East, 221.00 feet;
Thence North 88o 50' 29" East, 59.92 feet;
Thence South 29o 07' 55" East, 724.00 feet;
Thence North 89o 24' 46" East, 43.82 feet;
Thence South 15o 06' 26" West, 734.44 feet to a point on a line 974.88 feet
northerly and parallel with measured at right angles from the southerly line
of the Southwest Quarter (SW 1/4) of said Northwest Quarter (NW 1/4);
Thence along said line, South 88o 57' 12" West, 840.96 feet to a point of
curvature;
Thence departing said line, northwesterly, along the arc of a curve to the
right, concave northeasterly, having a radius of 226.00 feet, through a
central angle of 42o 05' 25", an arc distance of 166.02 feet to a point of
reverse curvature to which a radial line bears, South 40o 5_', 57" West;
Thence continuing northwesterly, along the arc of a curve to the left, concave
southwesterly, having a radius of 174.00 feet, through a central angle of 41o
21' 54", an arc distance of 125.82 feet;
Thence south 89o 40' 35" West, 51.25 feet to a point on the easterly right-of-
way line of said Las Vegas Boulevard South as described in Deed recorded June
27, 1995, in Book 960627, Instrument No. 01842, Official Records;
Thence along said right-of-way line, North 00o 14' 54" West, 1403.25 feet to a
point of curvature;
Thence northeasterly, along the arc of a curve to the right, concave
southeasterly, having radius of 54.00 feet, through a central angle of 89o 05'
23", an arc distance of 83.97 feet to the POINT OF BEGINNING.
Said parcel contain 41.37 acres, more or less.
"The above described parcel of land represents a portion of the Northwest
Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇.▇. ▇▇▇▇▇▇
of ▇▇▇▇▇, State of Nevada and is not intended for inclusion in a document
conveying fee ownership. To do so is a violation of state law and or local
ordinance."
END OF DESCRIPTION
TABLE OF CONTENTS
Paragraph #, Description Page #
1. Term .....................................................1
2. Option To Extend Lease Term ..............................2
3. Purpose Of Occupancy .....................................2
4. Exclusive Use ............................................2
5. Prohibited Activities ....................................2
6. Compliance With Laws .....................................3
7. Access To Leased Premises ................................3
8. Tenant Responsible For Repairs ...........................3
9. Improvements .............................................3
10. Property Loss Assumed By Tenant ..........................4
11. Non-Responsibility Notices ...............................5
12. Attorneys Fees ...........................................5
13. Utilities ................................................5
14. Public Liability And Property Damage Insurance ...........5
15. Tenant's Fire Insurance ..................................6
16. Waiver Of Subrogation ....................................6
17. Other Insurance Matters ..................................6
18. Cumulative Remedies ......................................7
19. Defaults And Remedies In The Event Of Default ............7
20. Landlord Default .........................................8
21. Assignment And Subletting ................................9
22. Holdover .................................................10
23. Non-Waiver ...............................................10
24. Number And Gender ........................................10
25. Heirs, Successors And Assigns ............................10
26. Paragraph Caption ........................................10
27. Minimum Rent And Adjustment ..............................10
28. Deposit ..................................................11
29. Percentage Rental ........................................12
30. Liens ....................................................15
31. Indemnification ..........................................15
32. Offset Statement .........................................16
33. Quite Possession .........................................16
34. Service Of Notices .......................................16
35. Partial Invalidity .......................................16
36. Brokers ..................................................16
37. Condemnation .............................................17
38. section # 38 has been intentionally omitted ..............18
39. Taxes ....................................................18
40. Signage Rights ...........................................19
41. section 41 has been intentionally omitted ................20
42. Gaming ...................................................20
43. section 43 has been intentionally omitted ................20
44. Infrastructures ..........................................20
45. section 45 has been intentionally omitted ................20
46. Tenant's Trademarks/Trade Names ..........................20
47. Hazardous Materials ......................................20
48. Sole And Only Agreement ..................................21
49. Acting In Good Faith, Discretion, And With Reasonable-
ness ....................................................21
50. No Merger ................................................21
51. Transfer Of Landlord's Interest ..........................21
52. Effect Of Exercise Of Privilege By Landlord ..............21
53. Insolvency ...............................................22
-I-
54. Execution Of Documents ...................................22
55. Execution To Perform/Force Majeure .......................22
56. Governing Law ............................................22
57. Landlord's Warrantees And Representations ................22
58. Non-Disturbance, Attornment And Subordination Agreement ..25
59. Arbitration ..............................................26
60. Landlord Bankruptcy Proceeding ...........................27
61. Memorandum Of Leases .....................................27
62. Leasehold Mortgagee Rights ...............................27
-ii-
INDENTURE OF LEASE
THIS INDENTURE OF LEASE (herein Lease), made and entered into in Las
Vegas, Nevada, on this ------- day of June, 1997 by and between Urban Land of
Nevada, a Nevada corporation (herein called LANDLORD) and All-American
SportPark, Inc., a Nevada Corporation, (herein TENANT).
BACKGROUND/CONDITIONS - LANDLORD owns approximately 135 acres of
unimproved property in ▇▇▇▇▇ County, Nevada, which is bounded by Las Vegas
Boulevard, ▇▇▇▇▇▇▇▇▇ Street, Sunset Road, and I-215 - the ▇▇▇▇▇ Expressway
("LANDLORD s Property"), which is more particularly shown and highlighted in
yellow on EXHIBIT "A", which is attached hereto and by this reference made a
part hereof.
TENANT wishes to lease approximately 23.6 acres of LANDLORD s Property for
a sports park with a golf driving range, a par three executive golf course, a
batting stadium, miniature golf course, go-karts, and buildings to house food
concessions, an arcade and other uses normally expected in a sports park
("Leased Premises") as highlighted in blue on EXHIBIT "A".
LANDLORD wants to provide wholesome, family, sports oriented entertainment
which will be an amenity for its proposed hotel/casino and entertainment
center, planned for the southern part of LANDLORD's Property and expects that
TENANT's development will support and complement LANDLORD's plans for the
balance of LANDLORD's Property.
TENANT has established relationships with certain sports entities, which
will enable TENANT to build first class facilities for go-karts, a batting
stadium, an entertainment area for watching sports event and a retail facility
to sell sports equipment and clothing.
LANDLORD has seen TENANT's prepared preliminary plans and has entered into
this Lease expressly on the condition that TENANT builds such a facility.
W I T N E S S E T H:
LANDLORD hereby leases to TENANT, and TENANT hereby hires from LANDLORD,
the premises outlined in blue on EXHIBIT "A" attached hereto and incorporated
herein by reference as though fully set forth herein (herein Leased Premises)
for the term and in accordance with the provisions hereinafter stated and
provided. An exact legal description attached as EXHIBIT "B" will be attached
hereto when available, as required by an agreement of even date herewith
between LANDLORD and TENANT, which agreement shall cover such matters as
conditions precedent to the effectiveness of this Lease, as a security
deposit.
IN CONSIDERATION WHEREOF, THE PARTIES HERETO HEREBY COVENANT AND AGREE AS
FOLLOWS:
1. TERM - The term of this Lease will be fifteen (15) years and will
commence on the first day of the month next following the date that the TENANT
notifies LANDLORD of the satisfaction or waiver of all conditions precedent
set forth in the Agreement in accordance with PARAGRAPH NUMBERED 3 of the
Agreement, will expire the last day of the 180th month thereafter. Once the
effective commencement date of this Lease is established, the parties will
execute an Amendment to this Lease and the Memorandum of Lease required by
PARAGRAPH NUMBERED 61 hereof, establishing the commencement and termination
dates with certainty.
2. OPTION TO EXTEND LEASE TERM - LANDLORD hereby grants to TENANT the
right, privilege and option to extend this Lease for two (2) additional terms
of five (5) years each upon the same terms and conditions as herein contained,
including, without limitation, the Minimum Rent and Percentage Rent set forth
in PARAGRAPHS NUMBERED 27 and 29 below.
Provided TENANT is not in default under the terms of this Lease beyond any
applicable notice and cure periods, at the time of its exercise of an option,
the given option to extend may be exercised by TENANT by giving written notice
of exercise to LANDLORD at least one hundred eighty (180) days prior to the
end of the term or expiration of the then extended term. The extension
options set forth herein are not personal to TENANT and may be exercised by
any permitted assignee of this Lease or by any Leasehold Mortgagee as defined
herein below.
3. PURPOSE OF OCCUPANCY - TENANT shall initially use and occupy the
Leased Premises for a commercial recreation facility known as the All-American
Sport Park which may include: baseball practice hitting range, miniature golf
course, go-kart facility, video arcade and sports skills challenge area,
sports merchandise retail, sports activity arena for in-like skating and
special events, and food and beverage services including a fast food court,
dining areas, snack food kiosks, catering services and sports bar. TENANT may
not change the use of the Leased Premises to other uses and purposes without
the prior written consent of LANDLORD which consent shall not be unreasonably
withheld, conditioned or delayed. Uses not permitted on the Leased Premises
are set forth in PARAGRAPH NUMBERED 5 of this Lease. All food services must
be inside the main building, or otherwise integrated into TENANT's overall
sports park theme and operation, it being the parties' intention that no food
services will be permitted on pads or otherwise within the Leased Premises at
a location with direct access to Sunset Road or Las Vegas Boulevard.
4. EXCLUSIVE USE - LANDLORD hereby grants to TENANT the exclusive right
to carry on the following uses: baseball practice hitting range, and go-kart
facility, video arcade and sports skills challenge area, sports merchandise
retail, food and beverage service, sports activity areas for in/line skating
and special events. LANDLORD will not permit the conduct of any business or
enterprise of any of the same kind or nature to any of these specific uses on
LANDLORD's Property during the Lease term or any extensions) thereof. The
land to which this covenant pertains is outlined in yellow on EXHIBIT "A".
For these purposes, LANDLORD will execute a recordable restrictive covenant
describing the balance of LANDLORD's Property in EXHIBIT "A" and the use
restrictions applicable thereto and deliver same to TENANT and allow TENANT to
record it. One of TENANT's remedies for a violation of the restrictive
covenant by LANDLORD would be to terminate this Lease.
5. PROHIBITED ACTIVITIES - During the entire term of this Lease, the
following uses shall not be permitted on the Leased Premises: A gas station, a
funeral parlor, a massage parlor, a so-called "flea market," industrial or
residential purposes, an adult bookstore or a store selling or exhibiting
pornographic materials (as used herein "adult bookstore or store selling or
exhibiting pornographic materials" shall include without limitation, a store
displaying for sale or exhibiting books, magazines or other publications
containing any combination of photographs, drawings or sketches of a sexual
nature which are not primarily scientific or educational or store offering for
exhibition, sale or rental videocassettes or other medium capable of
projecting, transmitting, or reproducing independently or in conjunction with
other devices, machine or equipment, an image or series of images the content
of which has been rated or advertised generally "X" or un-rated by the Motion
Picture Rating Association or any successor thereto"), any use that materially
increases the risk of hazardous contamination on the Leased Premises or
surrounding area, and any use that is in any way in violation of any valid
law, ordinance, or regulation of any Federal, State, County, or local agency,
body or entity. In addition, TENANT shall not commit or suffer to be
committed, any waste upon the Leased Premises or any nuisance. LANDLORD
agrees to use its best efforts (including litigation) to prohibit the uses
listed in this Paragraph 5 with the exception of a gas station, on the balance
of LANDLORD's Property during the lease term or any extension thereof.
6. COMPLIANCE WITH LAWS - TENANT shall promptly execute, perform and
comply with each law, rule, order, decision, ordinance, requirement and
regulation of each City, County, State, or Federal authority, department,
board, or body having jurisdiction or authority in relation to this Lease, or
the Leased Premises, and TENANT shall promptly make each such repair,
replacement, improvement or addition required by any such and without cost to
LANDLORD.
7. ACCESS TO LEASED PREMISES - LANDLORD shall have access to the Leased
Premises, at all reasonable times, for the purpose of making any such
improvement, repair or alteration as is the responsibility of LANDLORD
hereunder, if any. It is, however, expressly understood and agreed that the
authority hereby reserved or granted to the LANDLORD, does not impose, nor
does the LANDLORD assume, by reason thereof, any responsibility, or liability,
whatsoever, for the care, maintenance, supervision, improvement, repair or
alteration of the Leased Premises other than as may be set forth herein.
8. TENANT RESPONSIBLE FOR REPAIRS - LANDLORD shall be under no
liability, obligation or expense whatsoever in connection with the maintenance
or the repair of any improvements constructed upon the Leased Premises, of any
and every description. And, any and every need for repair is hereby accepted
by TENANT, who hereby covenants and agrees to make each such repair at
TENANT's sole cost and expense.
9 IMPROVEMENTS - TENANT shall construct on the Leased Premises a
high-quality commercial recreation facility in a good and workmanlike manner.
TENANT shall submit to LANDLORD within one hundred eighty (180) days after
execution of this Lease a Site Plan with colors and an elevation with
architectural detail, Landscaping Plan, Grading Plan, and civil engineering
drawings for the improvements which TENANT intends to construct of the Leased
Premises. LANDLORD shall so notify TENANT as to the portions of the plans and
drawings which do not meet LANDLORD's reasonable approval guidelines. LANDLORD
shall so notify TENANT in writing within fifteen (15) days from the receipt of
said plans and drawings or LANDLORD's objection shall be deemed waived,
thereby constituting an approval. TENANT shall pay for the cost of bringing
all utilities to buildings or improvements constructed on the Leased Premises
by TENANT. Upon completion of the improvements and when any buildings are
ready for occupancy by TENANT, TENANT shall prepare and record a Notice of
Completion and obtain a Certificate of Occupancy. After the initial completion
of TENANT's commercial recreation facility on the Leased Premises, TENANT at
its cost shall have the right to make, without LANDLORD's consent, alterations
to the improvements; provided any material structural alterations or
improvements or any significant change in the exterior colors of any buildings
on the Leased Premises shall require LANDLORD's prior written consent which
shall be deemed given if LANDLORD does not object within fifteen (15) days of
LANDLORD's receipt of TENANT's request for consent.
All buildings and other improvements constructed upon the Leased Premises
by TENANT during the term of this Lease and all alterations, additions, and
fixtures thereto from time to time constructed, installed, or placed in, on or
upon the Leased Premises by TENANT shall be owned by TENANT or any permitted
assignee of TENANT until expiration of the term or sooner termination of this
Lease. TENANT shall not remove any of the buildings or permanent improvements
from the Leased Premises nor waste, destroy or modify any of the buildings and
improvements except as permitted by this Lease. Tenant shall have the right
to remove from the Leased Premises all furniture, trade fixtures and equipment
which are not permanently affixed thereto. At the expiration of the term or
sooner termination of this Lease, all buildings and permanent improvements
shall, without compensation to TENANT, remain upon the Leased Premises, and
shall become LANDLORD's property free and clear of any liens, claims, or
rights of any third parties or of TENANT. TENANT shall indemnify LANDLORD
from any such liens, claims, or rights of third parties. Each party agrees to
execute, acknowledge, and deliver any instrument required by the other to
evidence the respective interest of the parties hereto as stated in this
paragraph. Provided, however, within thirty (30) days after the end of the
lease term or any extension thereof, LANDLORD shall inspect the Leased
Premises and shall promptly advise TENANT in writing if TENANT shall be
required to remove any improvements constructed on the Leased Premises by
TENANT. If LANDLORD determines that certain improvements shall be removed,
then TENANT, at TENANT's cost and expense, shall remove such improvements and
shall return the Leased Premises other than as set forth in PARAGRAPH NUMBERED
57 hereof to its previous condition within sixty (60) days after the date of
Landlord's inspection.
TENANT accepts the Leased Premises in an "as is" condition other than as
set forth in PARAGRAPH NUMBERED 57 hereof. LANDLORD makes no warranty as to
the condition of the Leased Premises. LANDLORD shall not make any
improvements on the Leased Premises or pay for any fees or costs in regard to
TENANT's use of the Leased Premises.
If construction of TENANT's proposed project is not completed on the
Leased Premises within two (2) years of the commencement date of this Lease as
established in accordance with PARAGRAPH NUMBERED 1 hereof, LANDLORD upon
written notice to TENANT shall have the right to terminate this Lease. If any
portion of the Leased Premises is not improved within two (2) years of the
execution of this Lease, this Lease shall terminate as to that portion of the
Leased Premises not so improved and upon such partial termination, there shall
be no adjustment in the Minimum Rent as set forth in PARAGRAPH NUMBERED 27 of
this Lease.
10. PROPERTY LOSS ASSUMED BY TENANT - TENANT shall indemnify and hold
LANDLORD and the property of LANDLORD, including the Leased Premises, and any
buildings or improvements now or hereafter on the Leased Premises, free and
harmless of any and all liability, claims, loss, damages, or expenses
resulting from TENANT's occupation and use of the Leased Premises,
specifically including without limitation any liability, claims, loss,
damages, or expenses arising by reason of:
(a) the death or injury of any person, including TENANT or any
person who is an employee or agent of TENANT, or by reason of the damage to or
destruction of any property, including property owned by TENANT or by any
person who is an employee or agent of TENANT, from any cause whatever, except
for LANDLORD's gross negligence, willful acts or omissions or intentional
misconduct while such person or property is in or on the Leased Premises or in
any way connected with the Leased Premises or with any of the improvements or
personal property on the Leased Premises;
(b) the death or injury of any person, including TENANT or any
person who is an employee or agent of TENANT, or by reason of the damage to or
destruction of any property, including property owned by TENANT or by any
person who is an employee or agent of TENANT, caused or allegedly caused by
(i) the condition of the Leased Premises or some building or improvement on
the Leased Premises, or (ii) some act or omission on the Leased Premises by
TENANT or any person except LANDLORD in or about the Leased Premises with
permission and consent of TENANT;
(c) any work performed on the Leased Premises or materials
furnished to the Leased Premises at the instance or request of TENANT or any
person or entity acting for on behalf of TENANT; or,
(d) TENANT's failure to perform any provision of this Lease or to
comply with any requirement of law or any requirement imposed on TENANT or the
Leased Premises by any duly authorized governmental agency or political
subdivision.
The limits of liability insurance as provided in PARAGRAPH NUMBERED 14 of
this Lease shall not, however, limit the liability of TENANT under the
indemnity provision of this PARAGRAPH NUMBERED 10.
11. NON-RESPONSIBILITY NOTICES - LANDLORD may place upon said Leased
Premises any notices of lien non-responsibility as LANDLORD deems proper, and
may record such as LANDLORD deems proper, and TENANT shall at all times keep
said Leased Premises and the fee title free and clear of, from and against
each mechanics and each materialman's lien, and each encumbrance, attorney's
fee and costs related thereto for which TENANT, or another acting for, as, or
through TENANT shall be responsible.
12. ATTORNEY'S FEES - The Court may award reasonable attorneys fees
and costs to the party hereto prevailing in enforcing any obligation of the
other party hereto under this Lease, or prevailing in any litigation connected
with this Lease.
13. UTILITIES - TENANT shall pay when due any and all Gas, Electricity,
Telephone, Waste Collection, Sewer Rental, and any and all other UTILITY or
USE SERVICE charges which become payable, or accrue, during the term of this
Lease, upon said Leased Premises, and payments therefor shall be made directly
to the Utility Company (except as provided herein elsewhere to the contrary),
and TENANT shall indemnify and hold harmless LANDLORD and also said Leased
Premises of, from and against payment of the same.
14. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE - TENANT at TENANT's
cost shall maintain public liability and property damage insurance with
liability limits of not less than ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) per person and ONE MILLION AND 00/100 DOLLARS ($1,000,000.00)
per occurrence, and property damage limits of not less than FIFTY THOUSAND AND
00/00 DOLLARS ($50,000.00) per occurrence, insuring against all liability of
TENANT and TENANT's agents and employees arising out of or in connection with
TENANT's use or occupancy of the Leased Premises. In addition, TENANT agrees
to name LANDLORD as an additional insured under a $10,000,000.00 umbrella
liability policy to be in force upon receipt of an occupancy permit for the
Leased Premises. Such policies of insurance shall be for periods of not less
than one (1) year, and shall be renewed or a new policy obtained not less than
TWENTY (20) DAYS before a current policy's coverage terminates.
15. TENANT'S FIRE INSURANCE - TENANT at TENANT's cost shall maintain on
all of TENANT's personal property, TENANT's improvements, and alterations, in,
on, or about the Leased Premises, a policy of fire and extended coverage
insurance, with vandalism and malicious mischief endorsements, to the extent
of at least 80% of their full replacement value. The proceeds from any such
policy shall be used by TENANT for the replacement of damaged personal
property and the restoration of TENANT's damaged improvements and alterations,
except, however, in the event any such damage shall occur during the last two
(2) years of the Lease term or any extension thereof, TENANT may elect not to
restore the damaged premises and in such event, the insurance proceeds which
cover the loss of furniture, fixtures and equipment shall be paid directly to
the TENANT. The insurance proceeds which cover the loss of buildings and
permanent improvements shall be paid directly to the LANDLORD. Except as
provided immediately above, TENANT shall hold the insurance proceeds in trust
for such replacement and such restoration and shall disburse the same as
progress in replacement or restoration progresses.
16. WAIVER OF SUBROGATION - The parties release each other, and their
respective authorized representatives, from any claims of damage to any person
or to the Leased Premises and the buildings and other improvements located on
the Leased Premises, and to the fixtures, personal property, TENANT's
improvements, and alterations of either LANDLORD or TENANT in or on the Leased
Premises and the buildings and other improvements located on the Leased
Premises that are caused by or result from risks insured against under any
insurance policies carried by the parties and in force at the time of any such
damage.
Each party shall cause each property insurance policy obtained by it to
provide that the insurance company waives all right of recovery by way of
subrogation against each party in connection with any damage or liability
covered by any policy. Neither party shall be liable to the other for any
damage or liability, caused by fire or any of the risks insured against under
any property insurance policy required by this Lease. If any property
insurance policy cannot be obtained with a waiver of subrogation, or is
obtainable only by the payment of an additional premium charge above that
charged by insurance company issuing the policy without waiver of subrogation,
the party undertaking to obtain the insurance shall notify the other party of
this fact. The other party shall have a period of ten (10) days after
receiving the notice either to place the insurance with a company that is
reasonably satisfactory to the other party and that will carry the insurance
with a waiver of subrogation, or to agree to pay the additional premium if
such a policy is obtainable at additional, reasonable cost. If the insurance
cannot be obtained or the party in whose favor a waiver of subrogation is
desired refuses to pay the additional, reasonable premium charged, the other
party is relieved of the obligation to obtain a waiver of subrogation rights
with respect to the particular insurance involved.
17. OTHER INSURANCE MATTERS - All the insurance required under this
Lease shall:
(a) Be issued by insurance companies authorized to do business in
the State of Nevada with a financial rating of at least a B+ status as rated
in the most recent edition of Best's Insurance Reports.
(b) Be issued as a primary policy.
(c) All of the foregoing insurance policies required pursuant to
PARAGRAPHS NUMBERED 14 and 15 of this Lease shall name LANDLORD as an
additional insured and shall provide that LANDLORD shall be given a minimum of
thirty (30) days written notice by any such insurance company prior to the
cancellation, termination, or alteration of the terms or limits of such
coverage. Each policy, or a certificate of the policy, together with evidence
of payment of premiums, shall be deposited with the other party at the
commencement of the term, and on each renewal of the policy or new policy not
less than TWENTY (20) days before expiration of the term of the policy.
18. CUMULATIVE REMEDIES - All the rights and remedies of the LANDLORD
under this Lease shall be cumulative, and the exercise or assertion of one or
more of said rights or remedies shall not exclude the exercise of or assertion
of any other rights or remedies allowed by law or equity.
19. DEFAULT AND REMEDIES IN THE EVENT OF DEFAULT -
(a) DEFAULTS - TENANT shall be deemed in default and to have
breached this Lease and said default and breach shall be deemed complete and
uncured:
A. In the event that any rental payment, any property tax
payment, any insurance premium or any other monetary payment required herein
to be paid, or reserved herein, has not been paid within ten (10) business
days immediately after the due date thereof.
B. In the event that TENANT fails to keep or perform any other
covenant or condition contained in this Lease on TENANT's part to be kept or
performed, and such failure to keep or perform the same continues in whole or
in part, for a period of 30 days after service or giving of written notice
thereof by LANDLORD to TENANT, as provided for service or giving of notice in
this Lease; provided, however, that TENANT shall not be deemed in default
hereunder if it commences to remedy said default within said notice period and
proceeds therewith with due diligence.
(b) REMEDIES - In the event of any default under this Lease,
complete and uncured, as provided in subparagraph A and B immediately above,
LANDLORD may, at LANDLORD's option, exercise one or more or all of the
following remedies, and each shall be deemed cumulative and the exercise of
one or more shall not be deemed or held an election of any remedy to the
exclusion of any other remedy:
A. LANDLORD or his agent or agents shall have the right to and
may enter the Leased Premises as the agent of TENANT and may re-rent the
Leased Premises as the agent of the TENANT and receive the rent therefor on
such terms as shall be satisfactory to LANDLORD, and all rights of TENANT to
repossess the Leased Premises under such leasing shall be terminated and
forfeited. Such reentry by LANDLORD shall not operate to release TENANT from
any rent to be paid or covenants to be performed hereunder during the full
term of this Lease. For the purpose of re-letting, LANDLORD shall be
authorized to make such repairs or alterations in or to the Leased Premises as
may be necessary to place the same in good order and condition. TENANT shall
be liable to LANDLORD for the cost of such repairs or alterations, and all
expenses of such re-entry and re-letting. If the sum realized from the
re-letting is insufficient to satisfy the monthly or term rent provided in
this Lease, LANDLORD, at LANDLORD's option, may require that TENANT pay such
deficiency month by month or LANDLORD may seek said deficiency periodically or
at the end of said unexpired Lease term. LANDLORD shall not in any event be
required to pay to TENANT any surplus of any sums received by LANDLORD
resulting through a re-letting of said Leased Premises and which sum is in
excess of the rent reserved or to be paid under this Lease.
B. The unexpended deposit elsewhere provided herein to be
deposited by TENANT in favor of LANDLORD, to the extent, if any existing, may
be used in restoration of said Leased Premises to the condition existing
before rental to TENANT, including the costs of cleaning up of said Leased
Premises, if any, the costs of advertising said Leased Premises for leasing
through the making of signs or other means, and to the costs of repair or
restoration of said Leased Premises, any or all of the foregoing, and to
payment of any rental commission, and to the extent that there is any
remainder of said deposit, the same shall be applied toward the remaining
rental as it becomes due.
C. Notwithstanding any re-letting without termination, LANDLORD
may at any time thereafter elect to terminate this Lease for such previous
breach and failure to terminate the Lease in the initial instance for such
breach, or the re-letting of the Leased Premises by LANDLORD shall not
constitute a waiver of this right or stop LANDLORD from terminating this Lease
at any subsequent time. Should LANDLORD at any time terminate this Lease for
any breach in addition to any other remedy LANDLORD may have, LANDLORD may
recover from TENANT all damages incurred by reason of such breach, including,
but not limited to:
(1) The worth, at the time of the award of the unpaid rent
that has been earned at the time of termination of this Lease.
(2) The worth, at the time of the award of the amount by which
the unpaid rent would have been earned after the date of termination of this
Lease until the time of award exceeds the amount of the loss of rent that
TENANT proves could have been reasonably avoided;
(3) The worth, at the time of the award of the amount by which
the unpaid rent for the balance of the term after the time of award exceeds
the amount of loss of rent that TENANT proves could have been reasonably
avoided, and
(4) Any other amount, and court costs necessary to compensate
LANDLORD for all detriment approximately caused by TENANT's default.
"The worth at the time of the award" as used in (1) and (2) of
this paragraph is to be computed by allowing interest at the rate of ten
percent (10%) per annum. "The worth at the time of the award" as referred to
in (3) of this paragraph is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of the
award plus one percent (1%).
D. RIGHT TO PERFORM - If an Event of Default occurs, LANDLORD
may perform such covenant or condition at its option, after notice to TENANT,
All reasonable costs incurred by LANDLORD in so performing shall immediately
be reimbursed to LANDLORD by TENANT. Any performance by LANDLORD of TENANT's
obligations shall not waive or cure such default.
20. LANDLORD DEFAULT - In the event LANDLORD defaults in the
performance of any of its obligations, covenants, representations and
warranties hereunder and if such default continues for a period of fifteen
(15) days after written notice to LANDLORD from TENANT specifying the nature
of such default, TENANT may, at its option, cure the same on behalf of the
LANDLORD, whereupon the cost of such curing shall be due and payable to TENANT
from LANDLORD upon demand therefor by TENANT. The foregoing shall not limit
or preclude TENANT from any other rights and remedies available at law or in
equity.
21. ASSIGNMENT AND SUBLETTING - TENANT shall have the absolute right to
assign TENANT's rights under this Lease to a partnership, joint venture,
corporation or entity that is at least fifty percent (50%) owned either
directly or indirectly, by TENANT or a party in interest in the All-American
SportPark or to an entity which controls, is controlled by or is under common
control with TENANT.
Any other assignment of the TENANT's rights under this Lease must be
approved by LANDLORD, which approval will not be unreasonably withheld,
conditioned or delayed, A consent by LANDLORD to one assignment shall not be
deemed to be a consent to any subsequent assignment of this Lease by TENANT.
(a) ASSIGNMENT - Should TENANT be a corporation, any transfer or
assignment of any stock or interest in the corporation totaling in the
aggregate more than fifty percent (50%) of all such stock or interest in the
corporation shall be considered an assignment of this Lease requiring the
prior written consent of LANDLORD; provided, while a transfer of stock or
interest in the corporation of fifty percent (50%) or less shall not be
considered an assignment of this Lease. Upon such transfer, TENANT shall
provide LANDLORD with a copy of the transfer documents which shall include the
name, address, and telephone number of the transferee.
(b) SUBLEASE - TENANT may sublease a portion of the Leased Premises
or TENANT's improvements on the Leased Premises and/or grant a license or
licenses or concession or concessions within the Leased Premises without the
consent of LANDLORD provided that:
(i) Any subtenant, licensee or concessionaire does not occupy
more than fifteen (15%) percent of the Leased Premises;
(ii) Such use is permitted by PARAGRAPH NUMBERED 3 of this
Lease;
(iii) TENANT has executed a sublease agreement with subtenant
which specifically provides for record keeping and reporting as set forth in
the last PARAGRAPH NUMBERED 29(F) hereof.
(iv) TENANT gives LANDLORD prior written notice of such
subletting and/or concession or license, and a copy of those portions of the
subletting or concession/licensing documents relevant to the immediately
preceding Section (iii) and the name, address, and telephone number of the
sublessee, licensee or concessionaire.
TENANT shall not sublease all or any part of the unimproved property
within the Leased Premises without first obtaining LANDLORD's consent. Any
such sublease without LANDLORD's written consent shall be voidable and, at
LANDLORD's election, shall constitute a default. LANDLORD shall have the
right to approve or disapprove any such proposed sublease in LANDLORD's
discretion.
In the event of a sublease, the term of the sublease shall not extend
beyond the term of this Lease and any and all subleases shall contain an
attornment provision whereby the Sublessee shall recognize TENANT's successor
in interest and a non-disturbance provision whereby TENANT's successor shall
recognize the sublease so long as the Sublessee is not in default thereunder
and shall otherwise be expressly made subject to all the terms and covenants
and conditions of this Lease.
22. HOLDOVER - In the event that TENANT shall remain in the
demised
Leased Premises after the expiration or sooner termination of the term of this
Lease or any term theretofore extended as elsewhere provided herein, without
having exercised in writing an option contained in this Lease to extend the
Lease term or the then ending extended term, such holding over shall not
constitute a renewal or an extension of this Lease, and shall constitute a
month-to-month tenancy and, if LANDLORD so requires by written notice to
TENANT, the MINIMUM RENT for such holdover period shall be ONE HUNDRED TWENTY
PERCENT (120%) of the MINIMUM RENT effective on the last day of the term or
extended term, LANDLORD may, at LANDLORD's option, elect to treat TENANT as
one who has not removed at the end of his term, and LANDLORD shall thereupon
be entitled to all the remedies against TENANT provided by law or equity in
that situation, or, if not so treated, the tenancy shall be deemed a tenancy
from month to month, subject to the payment each month of the lease rental
provided for herein.
23. NON-WAIVER - The failure of either party to insist upon strict
compliance with or performance of any term, covenant, condition, or option
contained in this Lease or to the exercise of any option or alternative herein
allowed in any one instance or more instances, shall not be construed, deemed,
found or held a waiver or relinquishment for or in the future of that party's
right to insist upon strict performance of each such term, covenant,
condition, option, or alternative hereof and the same shall be and remain in
full force and effect without waiver.
24. NUMBER AND GENDER - All terms and words used in this Lease,
regardless of the number and gender in which they are used, shall be deemed
and construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context or sense of this Lease
or any paragraph or clause herein may suggest or require, the same as if such
words had been fully, limited by or properly written in the required number
and gender.
25. HEIRS, SUCCESSORS AND ASSIGNS - Each term, covenant, condition and
agreement contained in this Lease, shall be deemed and construed to inure to
the benefit of, apply to, and be binding upon each party hereto and the
respective heirs, executors, administrators, legal representatives, successors
and assigns of each respectively, except as herein expressly stated to the
contrary.
26. PARAGRAPH CAPTION - The captions of paragraphs contained in this
Lease are inserted as a convenience only and by way of guide or reference
only, and none limit, enlarge, define, or otherwise affect the scope or intent
of this Lease or any provision thereof, and none shall in any way be used as a
basis of construction or interpretation of this Lease.
27. MINIMUM RENT AND ADJUSTMENT -
A. Beginning on the date which is the earlier of the two dates: (a)
twelve (12) months after the date that this Lease commences in accordance with
PARAGRAPH NUMBERED 1 hereof, or (b) the date that TENANT first opens
substantially all of the facilities for the uses contemplated by PARAGRAPH
NUMBERED 3 hereof for business on the Leased Premises (the Rental Commencement
Date), TENANT shall pay to LANDLORD minimum rent in the amount of TWO HUNDRED
TWENTY SIX THOUSAND NINE HUNDRED TWENTY-THREE AND 00/100 DOLLARS ($226,923.00)
per year (herein "Minimum Rent") in monthly installments of EIGHTEEN THOUSAND
NINE HUNDRED AND TEN AND 25/100 DOLLARS ($18,910.25) each (herein "Monthly
Installments"),
B. All minimum rent shall be payable in equal monthly installments
and in advance without deduction or offset on the first day of each month
during the term of this Lease. Any Minimum Rent payable for less than a
full calendar month shall be paid on a proportionate basis based on the number
of days in that calendar month, Minimum Rent shall be paid to LANDLORD, in
lawful money of the United States at the address specified in Paragraph 34
below or at such other place as LANDLORD shall from time to time designate in
writing.
C. The Minimum Rent shall be increased at the end of the fifth
(5th) year of the term and every five (5) years thereafter ("Adjustment Date")
by an amount equal to ten percent (10%) of the minimum Monthly Installment for
the month immediately preceding the Adjustment Date. Upon adjustment of the
Monthly Installment as provided in this Lease, the parties shall immediately
execute an amendment to the Lease stating the new Monthly Installment and the
concomitant changes to PARAGRAPH NUMBERED 29 hereof with the reference to
Percentage Rental.
D. In the event TENANT shall be late in paying any Monthly
Installment, then TENANT shall pay a "late charge" of FIVE HUNDRED DOLLARS
($500.00) to LANDLORD for each month late, in addition to any such rent
payments. For purposes of this paragraph, any rent payment received by
LANDLORD more than ten (10) business days after its due date shall be deemed a
late payment.
28. DEPOSIT -
A. Concurrently with the execution of this Lease and/or in
accordance
with the terms of the Agreement, TENANT deposited or will deposit
the sum of $500,000.00 with Landlord (herein RENTAL DEPOSIT). Once the terms
of the Deposit Agreement are fulfilled and this Lease becomes effective, the
sum so deposited shall be applied first to the Security Deposit set forth in
PARAGRAPH NUMBERED 28B below, and then to the said Minimum Monthly Rent
payment first coming due and thereafter to each successive monthly Minimum
Rent payment until exhausted.
B. SECURITY DEPOSIT - Upon the commencement of this Lease in
accordance with the Deposit Agreement and PARAGRAPH NUMBERED 1 hereof, from
the RENTAL DEPOSIT referred to in PARAGRAPH NUMBERED 28A, the sum of THIRTY
SEVEN THOUSAND EIGHT HUNDRED AND TWENTY AND 50/100 DOLLARS ($37,820.50) shall
be deemed deposited with LANDLORD as security for the faithful performance of
all of the terms and conditions of this Lease on the part of TENANT to be
performed. This deposit is not rent, but shall be applied to the Minimum Rent
for the 47th and 48th months of the Term of this Lease, provided Tenant is not
in default of any term or condition of this Lease, The deposit will be
returned to TENANT upon the earlier expiration of the term hereof if TENANT
has fully performed TENANT's obligations hereunder and if TENANT leaves the
premises in the condition required by the Lease. LANDLORD shall not be
required to hold said security deposit as a separate fund, and no interest
shall be payable thereon.
If at any time during the term of this Lease, prior to the application
of the security deposit to Minimum Rent as aforesaid, any of the rent herein
reserved shall, in accordance with the default provisions hereof, be overdue
and unpaid or any other sum payable by TENANT to LANDLORD hereunder shall, in
accordance with said default provisions, be overdue and unpaid, then LANDLORD
may, at LANDLORD's option and after written notice to TENANT, appropriate and
apply any portion of the security deposit to the payment of the overdue rent
or other sum, If LANDLORD does apply any portion of the security deposit for
any such purpose, then TENANT shall promptly redeposit with LANDLORD a
sufficient amount of cash to restore the security to the proper amount,
TENANT's failure to do so within THIRTY (30) DAYS after the date due shall
constitute a breach of this Lease and a default hereunder.
29. PERCENTAGE RENTAL -
A. In addition to the Minimum Rent payable annually of TWO HUNDRED
TWENTY SIX THOUSAND NINE HUNDRED TWENTY-THREE AND 00/100 DOLLARS
($226,923.00), TENANT agrees to pay LANDLORD a percentage rental based upon
the four (4) kinds of gross sales receipts, below set forth, that is, Gross
sales receipts received from customers on the Leased Premises and made up of
or consisting of the following if the total thereof is in excess of TWO
HUNDRED TWENTY SIX THOUSAND NINE HUNDRED TWENTY-THREE AND 00/100 DOLLARS
($226,923.00) per annum:
(i) six percent (6%) of Gross Annual Sales of baseball batting
cage ticket sales, go cart ticket sales, in-line skating ticket sales,
miniature golf ticket sales, arcade token sales and sports challenge ticket
sales;
(ii) three percent (3%) of Gross Annual Sales derived from sales
of foods and beverages;
(iii) three percent (3%) of Gross Annual sales derived from sale
of merchandise;
(iv) three percent (3%) of Gross Annual Sales from any other
revenue source derived from park guests or patron usage of the Leased
Premises.
B. Each Lease Year shall be considered as an independent accounting
period for the purpose of computing the total amount of percentage rental, if
any, payable by TENANT to LANDLORD; and, with respect thereto, (a) if the
total of the said annual percentage receipts for said five (5) kinds of Gross
Annual Sales does not exceed in amount TWO HUNDRED TWENTY SIX THOUSAND NINE
HUNDRED TWENTY-THREE AND 00/100 DOLLARS ($226,923.00), no percentage rental is
due or payable for that Lease Year; and, if TENANT has paid percentage rental,
the amount of such excess payment shall be applied by LANDLORD to the monthly
Minimum Rent(s) next payable in the ensuing Lease Year, except in the case of
the last Lease Year, in which case such adjustment will be made within THIRTY
(30) DAYS after the termination of this Lease; and, (b) if the total of the
said annual percentage receipts exceeds TWO HUNDRED TWENTY SIX THOUSAND NINE
HUNDRED TWENTY-THREE AND 00/100 DOLLARS ($226,923.00) and, in turn, the amount
paid by TENANT exceeds the excess total of said Gross Annual Sales receipts
that should be paid for the Lease Year, the excess paid by TENANT shall be
similarly applied to monthly Minimum Rent as above provided; and, if based
upon the total of the annual percentage receipts over TWO HUNDRED TWENTY SIX
THOUSAND NINE HUNDRED TWENTY-THREE AND 00/100 DOLLARS ($226,923.00) there is a
sum yet owing by TENANT for the Lease Year, then TENANT shall pay said sum to
LANDLORD with the monthly Minimum Rent payment next due.
C. Percentage rent shall be computed each percentage rent period
(as defined in Subparagraph D) below, On or before the fifteenth (15th) day of
the calendar month immediately following the close of each percentage rent
EIGHTEEN THOUSAND NINE HUNDRED AND TEN AND 25/100 DOLLARS ($18910.25) per
month; and FIFTY SIX THOUSAND SEVEN HUNDRED AND THIRTY AND 75/100 DOLLARS
($56,730.75) per calendar quarter that TENANT has paid during the percentage
rent period. period, TENANT shall pay to LANDLORD the amount by which the sum
computed as a percentage of TENANT's gross sales during the percentage rent
period exceeds the herein elsewhere provided Minimum Rent of EIGHTEEN THOUSAND
NINE HUNDRED AND TEN AND 25/100 DOLLARS ($18910.25) per month; and FIFTY SIX
THOUSAND SEVEN HUNDRED AND THIRTY AND 75/100 DOLLARS ($56,730.75) per calendar
quarter that TENANT has paid during the percentage rent period.
D. PERCENTAGE RENT PERIOD; ACCOUNTING PERIODS
DEFINED: The percentage rent period shall be Quarterly. The last percentage
rent period shall end on the date the term expires or terminates.
"Lease Year" is A PERIOD COMMENCING ON THE RENTAL COMMENCEMENT DATE
defined in PARAGRAPH NUMBERED 27 above, AND ENDING ONE (1) YEAR LATER, and,
severally, each such 12 month period thereafter.
"Monthly" rent periods are calendar months within each Lease Year.
"Quarterly" rent periods are three (3) calendar months within each Lease Year.
▇. ▇▇▇▇▇ SALES DEFINED: With respect to "Gross Sales" above
designated, they include those of TENANT, subtenants, licensees, and
concessionaires, if any, whether for cash or on credit (whether collected or
not), made on the Leased Premises, whether made by personnel or vending or
other machines.
Gross Sales shall not include, or if included there shall be
deducted (but deducted only to the extent they have been included), the
following:
(1) The selling price of all merchandise returned by customers
and accepted for full credit, or the amount of discounts, refunds, and
allowances made on such merchandise.
(2) Sums and credits received in the settlement of claims for
loss of or damage to merchandise.
(3) The price allowed on all merchandise traded in by customers
for credit or the amount of credit for discounts and allowances made instead
of acceptance of merchandise.
(4) Gift certificates, or similar vouchers, until such time as
they shall have been converted into a sale by redemption.
(5) Sales and use taxes, so-called luxury taxes, consumers excise
taxes, gross receipts taxes, and other similar taxes now or in the future
imposed on the sale of service or merchandise, but only if such taxes are
added to the selling price during the percentage rent period.
(6) Sales of fixtures, equipment or property which are not
TENANT's stock in trade.
(7) Tips or gratuities given by customers to TENANT's agents,
employees or servants, whether such tips or other gratuities are automatically
added to the customer's ▇▇▇▇ or given by the customer separate and apart from
the ▇▇▇▇.
F. STATEMENT OF GROSS SALES - TENANT shall furnish to LANDLORD a
statement of TENANT's gross sales within fifteen days after the end of each
percentage rent period, and an annual statement of gross sales within THIRTY
(30) days after the end of each Lease year, Each statement shall be signed and
certified to be correct by an officer of TENANT.
At TENANT's option, TENANT shall keep at the Leased Premises or at
TENANT's main office currently located in Las Vegas, Nevada, full and accurate
books of account, records, cash receipts, and other pertinent data showing its
Gross Sales. TENANT shall install and maintain accurate receipt-printing cash
registers and shall record on the cash registers every sale and other
transaction made from the Leased Premises. Such books of account records,
cash receipts, and other pertinent data shall be kept until the lapse of a
period of two (2) years after the end of each Lease Year.
LANDLORD shall be entitled within one (1) year after expiration or
termination of this Lease to inspect and examine all of TENANT's books of
account, records, cash receipts, and other pertinent data, to enable LANDLORD
to ascertain TENANT's Gross Sales. TENANT shall cooperate fully with LANDLORD
in making the inspection. LANDLORD shall also be entitled, once during each
Lease Year to an independent audit conducted of TENANT's books of account,
records, cash receipts, and other pertinent data to determine TENANT's Gross
Sales for the immediately preceding Lease Year, by a certified public
accountant to be designated by LANDLORD. The audit shall be limited to the
determination of Gross Sales and shall be conducted only after notice to
TENANT and during usual business hours at the Leased Premises or at TENANT's
main office.
If the audit shows that there is a deficiency in the payment of any
percentage rent, the deficiency shall become immediately due and payable. If
the audit shows that more percentage rent was paid than was due in accordance
herewith, such overpayment shall be credited against the next ensuing Minimum
Rental payment(s). The costs of the audit shall be paid by LANDLORD unless
the audit shows that TENANT understated Gross Sales by three (3%) percent or
more for the Lease Year, in which case TENANT shall pay all of LANDLORD's
costs of the audit. If such audit indicates an understatement of Gross Sales,
such examined records shall continue at all times to be held by TENANT for
further examination until full payment of the deficiency in rent paid and
resulting from such understatement. To audit, LANDLORD must give TENANT
written notice at least three (3) business days prior to arrival of the
auditor and the name of the auditor, and such audit shall be conducted with as
little disruption of TENANT's business as is reasonably possible and be
conducted during normal business hours.
LANDLORD shall keep any information gained from such statements,
inspection, or audit confidential and shall not disclose it other than to
carry out the purposes of this Lease, except that LANDLORD shall be permitted
to divulge the contents of any statements in connection with any financing
arrangements or sale of LANDLORD's interest in the Leased Premises.
It shall be and is the duty of TENANT to require by each licensing
agreement, concession agreement, and sublease, as the case may be, and, if
applicable, each such licensee, concessionaire, and subtenant, as the case may
be, to keep and' provide to TENANT records, reports and statements
substantially like those required of TENANT to be provided to LANDLORD
hereunder and for the reporting periods herein required and the same to be
provided at the times herein provided, however, advanced by due date by five
(5) days, over that herein provided and which agreements shall further provide
that LANDLORD herein may as part of its audit of TENANT's records audit said
licensees, concessionaires, or subtenant's records, which records will be held
and retained for periods equal to those required of TENANT herein. TENANT
shall not be in default in the event that any subtenant, concessionaire or
licensee fails to properly report gross sales, nor will TENANT be obligated to
pay any audit fees incurred in any such audit.
G. NEGATION OF PARTNERSHIP: LANDLORD shall not become or be deemed,
found or held a partner or a joint venture with TENANT by reason of the
provisions of this Lease.
30. LIENS - The LANDLORD and TENANT covenant each with the other that
each party ordering labor or materials for use on or about the Leased Premises
or any parcel wherein any lien shall affect the Leased Premises shall hold the
other harmless against any loss or damage due to any lien filed against the
Leased Premises on account of non-payment or dispute with respect to labor or
materials furnished in connection with construction referred to herein or any
other construction on the Leased Premises and such party shall prevent entry
of any judgment against the Leased Premises. The party against whom such lien
is filed shall notify the other in writing within fifteen (15) days of its
notice of filing, and said lien shall be removed within' thirty (30) days
thereafter or protected by bond or surety should such party so affected desire
to contest such lien.
31. INDEMNIFICATION - TENANT hereby covenants to indemnify, save and
hold LANDLORD and the Leased Premises free, clear and harmless from each
liability, loss, cost, charge, penalty, obligation, expense, attorney's fee,
litigation, judgment, damage, claim or demand of any kind whatsoever in
connection with, arising out of, or by reason of any violation of law,
ordinance or regulation by TENANT, subtenants, licensees, concessionaires, or
of any independent contractor, agent, or employee of TENANT while in, upon,
about or in any way connected with the Leased Premises or any portion thereof
during the term of this Lease.
LANDLORD hereby covenants to indemnify, save and hold TENANT and the
Leased Premises free, clear and harmless from each liability, loss, cost,
charge, penalty, obligation, expense, attorneys fee, litigation, judgment,
damage, claim or demand of any kind whatsoever in connection with, arising out
of, or by reason of any violation of law, ordinance or regulation by LANDLORD
or of any independent contractor, agent, or employee of LANDLORD while in,
upon, about or in any way connected with the Leased Premises or any portion
thereof or LANDLORD's Property during the term of this Lease.
32. OFFSET STATEMENT - Each party agrees at any time and from time to
time during the term of this Lease and within fifteen (15) days after written
demand therefor, to execute and deliver to the party requesting a certificate
in recordable form certifying that this Lease is in full force and effect and
that there are no defenses or offsets thereto, or stating such defenses or
offsets as are claimed by the party responding and stating the dates to which
all rentals have been paid.
33. QUIET POSSESSION - LANDLORD covenants that TENANT may quietly have,
hold and enjoy the Leased Premises during the term of this Lease without any
disturbance from LANDLORD or from any other person claiming through LANDLORD.
34. SERVICE OF NOTICES - 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 given by facsimile
(fax). If such notice or demand be served personally, service shall be
conclusively deemed made at the time of such personal service. If such notice
or demand be served by registered or certified mail in the manner provided,
service shall be deemed to have been given on the date marked on the return
receipt unless delivery is refused or cannot be made, in which case the date
of postmark shall be deemed the date notice has been given. If such notice or
demand is given by fax, the notice shall be deemed given when received.
Any notice or demand to LANDLORD shall be addressed to Landlord at:
Urban Land of Nevada
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇, President
Any notice or demand to TENANT shall be addressed to Tenant at:
All-American SportPark, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Any party hereto 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.
35. PARTIAL INVALIDITY - If any term, provision, covenant or condition
of this Lease, or any application thereof, is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, all provisions, covenants
and conditions of this Lease, and all applications thereof, not held invalid,
void or unenforceable, shall continue in full force and effect.
36. BROKERS - Each party warrants that it has not had any dealings with
any realtor, broker or agent in connection with the negotiation of this Lease,
or any dealings of any character the result of which would make either party
liable for any broker's commission or compensation of any kind.
LANDLORD and TENANT each agree to indemnify, defend and hold the other
harmless from and against all loss and expense (including attorney's fees),
damage and liability resulting from breach or the claims of any broker or
finder on account of any services claimed to have been rendered to the
indemnifying party in connection with the transaction contemplated by this
Lease.
37. CONDEMNATION -
A. DEFINITIONS -
(1) "Condemnation" means (a) the exercise of any governmental
power, whether by any legal proceeding or otherwise, by a condemnor and (b) a
voluntary sale or transfer by LANDLORD to any condemnor, either under threat
of condemnation or while any legal proceeding for condemnation is pending.
(2) "Date of Taking" means the date the condemnor has the right
to possession of the leased premises being condemned.
(3) "Award" means all compensations, sums, or anything of value
awarded paid, or received on a total or partial condemnation.
(4) "Condemnor" means any public or quasi-public authority, or a
private corporation or individual, having the power of condemnation.
B. RIGHTS AND OBLIGATIONS TO BE GOVERNED BY LEASE - If, during the
term of this Lease or during the period of time between the execution of this
lease and the date this Lease commences, there is any taking of all or any
part of the buildings, other improvements, or land of which the Leased
Premises are a part or any interest I the Lease by condemnation or of any of
the COMMON AREAS, the rights and obligations of the parties shall be
determined pursuant to the provisions hereof and its subdivisions.
C. TOTAL TAKING - If the Leased Premises are totally taken by
condemnation, this Lease shall terminate on the date of taking.
D. PARTIAL TAKING OF LEASED PREMISES - If any portion of the
Leased Premises is taken by condemnation, this Lease shall remain in effect,
except that TENANT can elect to terminate this lease if as a result of such
partial taking it is no longer economically feasable for TENANT to conduct its
business on the Leased Premises. If TENANT elects to terminate this Lease,
TENANT must exercise its right to terminate pursuant to this paragraph by
giving notice to LANDLORD within ninety (90) days after the nature and the
extent of the taking have been finally determined. If TENANT elects to
terminate this Lease as provided in this paragraph, TENANT also shall notify
LANDLORD of the date of termination, which date shall not be earlier than
thirty (30) days nor later than ninety (90) days after TENANT has notified
LANDLORD of its election to terminate; except, that this Lease shall terminate
on the date of taking if the date of taking falls on a date before the date of
termination as designated by TENANT. If TENANT does not terminate this Lease
within the ninety (90) day period, this Lease shall continue in full force and
effect.
E. EFFECT ON RENT - If any portion of the Leased Premises is taken
by condemnation and this Lease remains in full force and effect, there shall
be no reduction in the MINIMUM MONTHLY RENTAL.
F. RESTORATION OF LEASED PREMISES - If there is a partial taking of
the Leased Premises and this Lease remains in full force and effect as herein
provided, LANDLORD shall assign to TENANT that portion of the award received
for improvements and severance damages which are reasonably needed for
TENANT's reconstruction and restoration of the remaining portions of the
Leased Premises, including any and all improvements made heretofore together
with the remaining portions of the parking areas to an architectural whole in
substantially the same condition that the same were in prior to such taking.
The portion of the award received by Landlord for land value will be entirely
retained by LANDLORD and will not be made available to TENANT for any reason.
G. AWARD-DISTRIBUTION - All compensation awarded for any taking
whether for the whole or a portion of the Leased Premises, shall belong to
LANDLORD; provided that TENANT shall be entitled to any award made whether to
LANDLORD or to TENANT for the undepreciated portion of TENANT's improvements,
moving expenses, the value of TENANT's trade fixtures, and loss or damage to
TENANT's business to the extent allowable under the law then in force and
effect. A leasehold mortgagee shall have no claim or interest in LANDLORD's
award for the depreciated portion of TENANT's improvement. TENANT shall have
no claim against LANDLORD or the condemning body or entity for any portion of
the award relating to the value of the unexpired term of this Lease.
38. - SECTION 38 HAS BEEN INTENTIONALLY OMITTED.
39. TAXES - Subject to apportionment of the taxes to the Rental
Commencement Date (the apportionment to be made on the basis of the fraction
derived from the acreage area of the Leased Premises to the total acreage
owned by LANDLORD out of which the Leased Premises are carved), TENANT shall
pay promptly and before they become delinquent (provided all statements are
received by TENANT in a timely manner), all real and personal property taxes,
assessments and other impositions, including, but not limited to, general and
special, direct or indirect, that become due at any time during the term of
this Lease upon or against the Leased Premises including all buildings and
improvements of TENANT, TENANT's furniture, fixtures, equipment now or
hereafter thereon which may be or are lawfully assessed either in the name of
the LANDLORD or TENANT. Copies of all paid receipts shall be forwarded to
LANDLORD. Any leasehold improvements to the Leased Premises shall be deemed
TENANT's personal property for purposes of this section. TENANT shall be
liable for penalties, interest or other charges imposed upon delinquent
payment provided TENANT has received the applicable tax bills and a written
statement of apportionment on a timely basis. TENANT shall pay all real
estate taxes on the land as distinguished from improvements or buildings
during the Lease Term hereof and forward the paid receipt evidencing such
payment to LANDLORD.
In the event assessments are payable in installments, TENANT shall have
the right to elect to pay same over the longest available installment period;
provided that any special assessments resulting from TENANT's development or
improvements must be paid off prior to the end of the Lease Term or any
extension thereof. TENANT shall not be obligated to pay any such installments
due and payable outside the term hereof or any extended terms if extended by
TENANT. Any taxes applicable to this Lease which shall be assessed during and
for the lease term but shall not be due and payable until after the expiration
thereof shall remain an obligation of TENANT that survives such expiration.
TENANT shall not be liable for any inheritance tax, estate tax, gift tax,
transfer tax, income tax, franchise tax, corporate tax, or similar tax upon
the business of LANDLORD nor for any tax or assessment arising from the sale,
lease or other disposition of the Leased Premises, in whole or in part,
whether from a tax re-evaluation of said real estate or an imposition directly
on such transaction; provided, however, that TENANT shall be responsible for
its share of any increases in real property taxes or assessments as set forth
in this PARAGRAPH NUMBERED 39 resulting from an increased valuation of the
Leased Premises because of a sale of the Leased Premises or a revaluation by
any governmental entity.
LANDLORD shall provide TENANT with each assessment notice with respect to
the Leased Premises within fifteen (15) days of receipt of the same to permit
TENANT to contest the same if appropriate. LANDLORD shall cause the Tax
Assessor of ▇▇▇▇▇ County, Nevada to carve out from the remaining property of
LANDLORD and separately assess the Leased Premises and improvements if it is
feasible for LANDLORD to do so.
The TENANT shall have the right, at its own cost and expense, to initiate
and prosecute any proceedings permitted by law for the purpose of obtaining an
abatement or of otherwise contesting the validity or amount of taxes or
assessments assessed to or levied upon the Leased Premises. If required by
law, TENANT may take such action in the name of the LANDLORD, who shall
cooperate with the TENANT to such extent as reasonably required to the end
that such proceedings may be brought to a successful conclusion, TENANT shall
fully indemnify and hold LANDLORD harmless from all loss, cost, damage and
expense incurred in furtherance of any contest or abatement proceeding.
TENANT agrees that in the event of any such election to contest, that it will
(i) pay the tax (unless such payment would operate to bar its right to
contest), and (ii) assure LANDLORD as reasonably necessary that the Leased
Premises and any mortgage lien thereon, if any, will not be subject to
forfeiture or foreclosure, as the case may be.
40. SIGNAGE RIGHTS - TENANT acknowledges LANDLORD's existing seven (7)
billboard signs along Las Vegas Boulevard and agrees to permit LANDLORD to
maintain such signs immediately to the east of the ONE HUNDRED (100) foot
right of way of Las Vegas Boulevard, subject to TENANT's reasonable approval
rights. LANDLORD shall, prior to the effective date of this Lease, and at no
cost to TENANT, exercise its best, good faith efforts to relocate all signs
along Las Vegas Boulevard to immediately to the east of the new ONE HUNDRED
(100) foot setback in accordance with the Agreement (or cause the same to be
so relocated). LANDLORD reserves the right to place two (2) free standing
signs on the Leased Premises along Sunset Road at locations within ONE HUNDRED
(100) FEET of the Sunset Road right of way and outside of the "Clear Zone",
cross-bolded in red on EXHIBIT A"; with specific locations to be approved by
TENANT, which approval shall not be unreasonably withheld, conditioned or
delayed.
TENANT agrees not to permit third parties not involved in an operation on
the Leased Premises to advertise on the Leased Premises. All signs put on the
Leased Premises by TENANT shall be subject to the prior written approval of
LANDLORD which approval will not be unreasonably denied, conditioned or
delayed. TENANT shall be permitted to put signage on the buildings and/or on
pylon or monument signs within the Leased Premises for parties who are doing
business or occupying space within the Leased Premises or parties who have an
interest in the TENANT's business by virtue of a license or sponsorship
agreement with the TENANT. Audio equipment used on the Leased Premises will
not be in violation of any regulations governing the use of audio equipment,
LANDLORD shall not place or permit to be placed any signs on the Leased
Premises other than as expressly set forth herein.
4l. SECTION 41 HAS BEEN INTENTIONALLY OMITTED.
42. GAMING - TENANT is hereby granted the right itself or by and
through a sublessee to have up to fifteen (15) slot machines and video poker
machines in the sports bar or any other facility, subject to licensing. In
addition to all other rental and charges payable hereunder, if TENANT conducts
a gaming enterprise on the Leased Premises in accordance with this PARAGRAPH
NUMBERED 42, it shall pay LANDLORD a sum equal to TWENTY-FIVE PERCENT (25%) of
the "net win" as defined in any agreement between TENANT and a gaming
licensee, concessionaire or slot route operator.
43. - SECTION 43 HAS BEEN INTENTIONALLY OMITTED.
44. INFRASTRUCTURE - LANDLORD and TENANT mutually agree to share at no
cost to each other the benefits derived from any future development of any
accesses or utility improvements, whether on the Leased Premises or on the
balance of the LANDLORD's Property. Further, LANDLORD and TENANT agree that
any third party who may in the future benefit from any of the improvements
mentioned herein will reimburse, on a pro-rata basis, either the LANDLORD or
the TENANT, depending on which paid for the improvements to which the third
party is deriving benefit.
45. - SECTION 45 HAS BEEN INTENTIONALLY OMITTED.
46. TENANT'S TRADEMARKS/TRADENAMES - LANDLORD shall not use any
trademarks or trade names of TENANT or of any of TENANT's subtenants,
licensees or concessionaires without the prior written consent of TENANT; and,
where applicable, of any affected subtenant, licensee or concessionaire.
47. HAZARDOUS MATERIALS - LANDLORD has no knowledge that the Leased
Premises contains any hazardous substance. A hazardous substance for purposes
of this Lease is defined as any substance whose nature and/or quantity of
existence, use, manufacture or affect, render it subject to Federal, State, or
local regulation, investigation, remediation, or removal as potentially
injurious to public health or welfare, i.e. including, but not limited to,
asbestos-containing materials, PCB's or underground tanks.
Neither TENANT nor its agents, employees, or contractors shall cause or
permit hazardous substances to be brought upon, kept, or used in, on, or about
the Leased Premises, except as permitted under and in full compliance with all
environmental laws. If TENANT obtains knowledge of the actual or suspected
release of a hazardous substance, then TENANT shall promptly notify LANDLORD
of such actual or suspected release. TENANT shall immediately notify LANDLORD
of any inquiry, test, investigation, or enforcement proceeding by or against
TENANT involving a release. If TENANT or its agents, employees, or
contractors shall cause or permit a release, then TENANT shall promptly notify
LANDLORD of such release and immediately begin investigation and remediation
of such release, as required by all environmental laws.
If TENANT breaches any obligation set forth in this paragraph, or if a
release is caused or permitted by TENANT or its agents, employees, or
contractors, and such release results in contamination of the Leased Premises,
then TENANT shall indemnify and defend LANDLORD (and LANDLORD's employees,
agents, partners, officers, and directors) against, and protect and hold
LANDLORD (and LANDLORD's employees, agents, partners, officers, and directors)
harmless from any and all claims, actions, suits, proceedings, judgments,
losses, costs, damages, liabilities (including, without limitation, sums paid
in settlement of claims), fines, penalties, or expenses (including, without
limitation, sums paid in settlement of claims), fines, penalties, or expenses
(including, without limitation, reasonable attorney's fees and consultant's
fees, investigation and laboratory fees, and court costs and litigation
expenses) that arise during or after the term as a result of such breach or
contamination.
This indemnity shall include, without limitation, (i) any damage,
liability, fine, penalty, punitive damage, cost, or expense arising from any
claim, action, suit, or proceeding for: personal injury (including sickness,
disease, or death), tangible property damage, nuisance, pollution,
contamination, leak, spill, release, or other effect on the environment, and
(ii) the cost of any investigation, repair, clean-up, treatment, or
detoxification of the Leased Premises and the preparation and implementation
of any closure, disposal, or other actions in connection with the Leased
Premises.
48. SOLE AND ONLY AGREEMENT - This Lease constitutes the sole and only
agreement between LANDLORD and TENANT respecting the Leased Premises, the
leasing of the Leased Premises to TENANT, the construction of the improvements
described in this Lease on the Leased Premises, or the Lease terms herein
specified and correctly sets forth the obligations of LANDLORD and TENANT to
each other as of its date, Any subsequent agreements or representations
respecting the Leased Premises, their Leasing to TENANT by LANDLORD, or any
other matter discussed in this Lease not expressly set forth in this Lease
shall be null and void unless they are in writing and executed by both
parties.
49. ACTING IN GOOD FAITH, DISCRETION, AND WITH REASONABLENESS -
Whenever either LANDLORD or TENANT must act pursuant to the terms of this
Lease, said actions shall be in good faith and any consents or approvals
required by one party from the other shall not be unreasonably withheld,
conditioned or delayed.
50. NO MERGER - There shall be no merger of the leasehold estate
created by this Lease with the fee estate in the Leased Premises by reason of
the fact that the same person may own or hold (i) the leasehold estate created
by this Lease or any interest in the leasehold estate and (ii) the fee estate
in the Leased Premises or any interest in the fee estate unless and until
LANDLORD and TENANT shall execute, acknowledge and record a written instrument
effecting the merger.
5l. TRANSFER OF LANDLORD'S INTEREST - LANDLORD shall have the right at
any time to sell, transfer, assign, pledge, or otherwise dispose of LANDLORD's
interest in the Leased Premises and in this Lease to any person, firm, or
corporation. In the event of such sale, transfer, assignment, or other
disposition, all obligations of LANDLORD hereunder shall devolve upon the
transferee and LANDLORD shall be released from all obligation and liability
thereafter accruing hereunder.
52. EFFECT OF EXERCISE OF PRIVILEGE BY LANDLORD - The exercise of any
right, or option or privilege hereunder by LANDLORD shall not exclude LANDLORD
from exercising any and all other rights, privileges, and options hereunder,
and LANDLORD's failure to exercise any said right, option, or privilege, shall
not relieve TENANT from TENANT's obligations to perform each and every
covenant and condition on TENANT's part to be performed hereunder, nor from
damage or other remedy for failure to perform or meet the obligation of this
Lease.
53. INSOLVENCY:
(a) For any attachment, garnishment, or execution of this Lease or
the interest of the TENANT hereunder in any action brought by or against the
TENANT, the TENANT shall have fifteen (15) days in which to provide the
LANDLORD written notification of such. Following TENANT's written
notification to LANDLORD, the TENANT shall have sixty (60) days in which to
cure. if such attachment, garnishment, or execution of this Lease brought by
or against TENANT cannot be cured within such sixty (60) day period, TENANT
shall not be in default hereunder; provided, TENANT has begun to cure within
such sixty (60) days and continues to diligently pursue a cure. Failure by
TENANT to either (a) notify LANDLORD as required above, or (b) cure (or
commence cure activity) within sixty (60) days following Notification shall
constitute a breach of this Lease by TENANT and a default hereunder.
(b) To the full extent permissible under the Bankruptcy Reform Act
of 1978, specifically Section 365 thereof (U.S.C. 365) or any successor
thereto, if TENANT shall file a voluntary petition in bankruptcy or take the
benefit of any insolvency act or be dissolved or adjudicated a bankrupt, or if
a receiver shall be appointed for its business or its assets and the
appointment of such receiver is not vacated within sixty (60) days after such
appointment, or if it shall make an assignment for the benefit of its
creditors, then and forthwith thereafter the LANDLORD shall have all of the
rights provided in Paragraph 19 of this Lease in the event of TENANT's default
hereunder.
54. EXECUTION OF DOCUMENTS - LANDLORD and TENANT shall each cooperate
with the other and execute such documents as the other party may reasonably
require or request so as to enable it to conduct its operations, so long as
the requested conduct or execution of documents does not have the effect of
derogating or altering the powers, rights, duties and responsibilities of the
respective parties.
55. INABILITY TO PERFORM/FORCE MAJEURE - The obligations of either
party hereunder shall not be affected or impaired nor shall either party be in
default of its obligations hereunder because such party is unable to fulfill
said obligations or is delayed in doing so, if such inability or delay is
caused by reason of strike, labor troubles, acts of God, governmental laws,
ordinances, rules or regulations or any other cause beyond the reasonable
control of such party.
56. GOVERNING LAW - This Lease, and all matters relating to this Lease,
shall be construed under the laws of the State of Nevada.
57. LANDLORD'S WARRANTIES AND REPRESENTATIONS - LANDLORD hereby
warrants and represents as follows:
(a) TITLE - LANDLORD has good and indefeasible fee simple title to
the Leased Premises and shall be fully capable of delivering to TENANT in
accordance with the terms and provisions of this Lease undisturbed possession
and quiet enjoyment of the Leased Premises.
(b) AUTHORITY OF LANDLORD - This Lease is valid and binding upon
LANDLORD and enforceable against it in accordance with its terms, Without
limiting the generality of the foregoing, (i) the execution and delivery of
this Lease by the person executing this Lease on behalf of LANDLORD and the
consummation by LANDLORD of the transactions contemplated hereby have been
specifically authorized by all requisite corporate action and (ii) the
transactions contemplated hereby are within LANDLORD's purposes and powers as
set forth in the applicable organizational documents forming and governing
LANDLORD.
(c) CONDEMNATION - To LANDLORD's knowledge, there is no pending or
threatened condemnation or similar proceeding affecting the Leased Premises or
any portion thereof nor does LANDLORD have any knowledge that any such action
is presently contemplated.
(d) PENDING LITIGATION - There are no legal actions, suits or other
legal or administrative proceedings pending or threatened against LANDLORD
that would have a material adverse effect upon the Leased Premises, LANDLORD's
interest therein, TENANT's contemplated use thereof or which would prohibit
LANDLORD from completing this transaction.
(e) PARTIES IN POSSESSION/CONTRACTS - No person or entity is in
possession of any portion of the Leased Premises as lessee, tenant at will or
at sufferance, or otherwise, and no person or entity has any right or option
to lease, purchase, occupy, use or possess any portion of the Leased Premises.
There are no maintenance, operations, management or miscellaneous contracts
affecting any portion of the Leased Premises.
(f) NO VIOLATIONS - LANDLORD has no present knowledge of any
violation of any ordinance, regulation, law or statute of any governmental or
quasi-governmental authority pertaining to the Leased Premises or any portion
thereof. The execution by LANDLORD of this Lease and the consummation by
LANDLORD of the transaction contemplated hereby does not and during the Term
of this Lease will not result in a breach of any term or provision of or
constitute a default or a condition which with notice or lapse of time or both
would ripen into a default under any indenture, agreement, instrument or
obligation to which LANDLORD is a party or to which LANDLORD or the Leased
Premises or any portion thereof is subject.
(g) DEBTS AND LIENS - LANDLORD has not incurred and to LANDLORD's
knowledge there are no unpaid charges, debts, liabilities, claims or
obligations as a result of the construction, occupancy, ownership, use or
operation of the Leased Premises which could give rise to any mechanic's,
materialments or other statutory lien against the Leased Premises or any
portion thereof.
(h) HAZARDOUS MATERIALS AND HAZARDOUS MATERIALS CONTAMINATION
DEFINITIONS:
A. For the purposes of this Lease, the parties agree that, unless
the content otherwise specifies or requires, the following terms shall have
the meaning herein specified:
(i) "Hazardous Materials" shall mean (a) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.
S,C, Section 6901 et secr,) ("CERCLAII) as amended from time to time, and
regulations promulgated thereunder; (c) asbestos; (d) polychlorinated
biphenyls; (e) underground storage tanks, whether empty, filled or partially
filled with any substance, (f) any substance the presence of which on the
Leased Premises is prohibited by any Governmental Requirements; and (g) any
other substance which by any Governmental Requirements requires special
handling or notification of any federal, state or local governmental entity in
its collection, storage, treatment, or disposal.
(ii) "Hazardous Materials Contamination" shall mean the
contamination (whether presently existing or hereafter occurring) of the
Improvements, facilities, soil, ground water, air or other elements on or of
the Leased Premises by Hazardous Materials, or the contamination of the
buildings, facilities, soil, ground water, air or other elements on or of any
other property as a result of Hazardous Materials at any time (whether before
or after the date of this Lease) emanating from the Leased Premises.
(iii) "Governmental Authority" shall mean the United States,
the State of Nevada, the county in which the Leased Premises is situated (or
each such county if the Leased Premises is situated in more than one county),
the city in which the Leased Premises is situated (or each such city if the
Leased Premises is situated in more than one city), and any political
subdivision of any of the foregoing, and any agency, department, commission,
board, bureau, court or instrumentality of any of them which now or hereafter
has jurisdiction over the LANDLORD or the construction, development,
management and operation of the Leased Premises.
(iv) "Governmental Requirement" shall mean any law,
ordinance, order, rule, regulation or directive of a Governmental Authority.
B. LANDLORD hereby expressly warrants and represents:
(i) To the best of LANDLORD's knowledge, no Hazardous
Materials are now located on the Leased Premises, and neither LANDLORD nor any
other person has ever caused or permitted any Hazardous Materials to be
placed, held, located or disposed of on, under or at the Leased Premises or
any part thereof;
(ii) To the best of LANDLORD's knowledge, no part of the
Leased Premises is being used for the disposal, storage, treatment, processing
or other handling of Hazardous Materials, nor is any part of the Leased
Premises affected by any Hazardous Materials Contamination;
(iii) To the best of LANDLORD's knowledge, no part of the
Leased Premises has been used in the past for the disposal, storage,
treatment, processing or other handling of Hazardous Materials;
(iv) To the best of LANDLORD's knowledge, no property
adjoining the Leased Premises is being used, or has been used at any previous
time for the disposal, storage, treatment, processing or other handling of
Hazardous Materials nor is any other property adjoining the Leased Premises
affected by Hazardous Materials Contamination:
(v) To the best of LANDLORD's knowledge, no investigation,
administrative order, consent order and agreement, litigation or settlement
with respect to Hazardous Materials or Hazardous Materials Contamination is
proposed, threatened, anticipated or in existence with respect to the Leased
Premises, To the best of LANDLORD's knowledge, the Leased Premises is not
currently on, and to LANDLORD's knowledge has never been on, any federal or
state "Superfund" or "Superlien" list.
(i) NO CONFLICTS - The execution and delivery of this Lease, and
the performance by the LANDLORD of its obligations hereunder, do not and will
not (a) conflict with or result in a breach of any term, condition or
provision of, or constitute a default under (i) the articles of incorporation
or bylaws of the LANDLORD, (ii) any bond, debenture, note or other evidence of
indebtedness or (iii) any contract, indenture, mortgage, loan agreement,
lease, joint venture or other agreement or instrument to which the LANDLORD is
a party or by which the LANDLORD or any of its properties are bound, or (b)
result in any violation of any Governmental Requirements.
(j) NO CONSENTS NECESSARY - No consent or approval of any third
party, including, without limitation, any Governmental Authority, is required
in connection with the execution, delivery or performance by the LANDLORD of
this Lease and the consummation of the transactions contemplated herein.
LANDLORD shall indemnify and hold TENANT harmless of, from and against any and
all claims, demands, liabilities, liens, costs, expenses, penalties, damages
and losses, including without limitation reasonable attorneys' fees and costs
suffered by TENANT as a result of any breach of warranty or representation
made by LANDLORD in this PARAGRAPH NUMBERED 57. Each warranty and each
representation shall survive the termination of the Lease.
58. NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
A. LANDLORD agrees that, no later than TWENTY (20) days after
thedate of full execution of the Lease, it will provide TENANT with
commercially reasonable non-disturbance, subordination and attornment
agreements ("non-disturbance agreement") in favor of TENANT from any ground
lessors, mortgage holders or lien holders (each,, a "Superior Mortgagee") then
in existence, if any, substantially in a form mutually acceptable to LANDLORD
and TENANT. Said non-disturbance agreements shall be in recordable form and
may be recorded at TENANT's election and expense, In the event LANDLORD fails
to provide such commercially reasonable non-disturbance agreements within the
time frame set forth above, TENANT shall have the right, exercisable at any
time thereafter, to give TEN (10) business days' written notice to LANDLORD
terminating the Lease. In the event LANDLORD does not provide TENANT with the
applicable nondisturbance agreements within such TEN (10) business day period,
the Lease shall terminate and LANDLORD shall reimburse TENANT for all of
TENANT's out-of-pocket costs incurred in connection with the design and
construction of the TENANT improvements and TENANT's legal fees incurred in
connection with the review and negotiation of the Lease and this provision
shall survive the termination of the Lease and LANDLORD shall forthwith pay
TENANT the sums represented by the Promissory Notes herein referred to,
LANDLORD agrees to provide TENANT with commercially reasonable and mutually
acceptable non-disturbance agreements, in favor of TENANT from any Superior
Mortgagee(s) of LANDLORD who later come(s) into existence at any time prior to
the expiration of the Term of the Lease, as it may be extended, in
consideration of, and as a condition precedent to, TENANT's agreement to be
bound by Lease PARAGRAPH NUMBERED 58B below. Said nondisturbance agreements
shall be in recordable form and may be recorded at TENANT's election and
expense.
B. OBLIGATIONS OF TENANT - Subject to PARAGRAPH NUMBERED 58A above,
the Lease and the rights granted to TENANT by the Lease shall be subject and
subordinate to (a) all ground or underlying leases affecting all or any part
of the Leased Premises subsequently existing and all amendments, renewals,
modifications, supplements and extensions of the leases, and (b) all deeds of
trust or mortgages subsequently affecting or encumbering all or any part of
the Leased Premises; provided, however, that if LANDLORD elects at any time to
have TENANT's interest in the Lease be or become superior, senior or prior to
any such instrument, then upon receipt by TENANT of written notice of such
election, TENANT shall immediately execute all necessary and reasonable
subordination instruments or other documents confirming the subordination of
such mortgage, deed of trust, ground or underlying lease to the Lease.
C. ATTORNMENT BY TENANT - Subject to PARAGRAPH NUMBERED 58A above,
in the event of the cancellation or termination of any or all ground or
underlying leases affecting all or any part of the Leased Premises in
accordance with its terms or by the surrender thereof, whether voluntary,
involuntary or by operation of law, or by summary proceedings, or in the event
of any foreclosure of any or all mortgages or deeds of trust encumbering the
Leased Premises by trustees sale, voluntary agreement, deed in lieu of
foreclosure, or by the commencement of any judicial action seeking
foreclosure, TENANT, at the request of the then landlord under the Lease,
shall attorn to and recognize (a) the ground or underlying lessor, under the
ground or underlying lease being terminated or canceled, and (b) the
beneficiary or purchaser at the foreclosure sale, as TENANT's landlord under
this Lease, and TENANT agrees to execute and deliver at any time upon request
of such ground or underlying lessor, beneficiary, purchaser, or their
successors, any instrument to further evidence such attornment. TENANT hereby
waives its right, if any, to elect to terminate the Lease or to surrender
possession of the Leased Premises in the event of any such ground or
underlying lease cancellation or termination or mortgage or deed of trust
foreclosure.
D. NON-DISTURBANCE - Notwithstanding any of the provisions of this
PARAGRAPH NUMBERED 58 to the contrary, TENANT shall be allowed to occupy the
Leased Premises, subject to the conditions of this Lease, and this Lease shall
remain in effect, until an Event of Default occurs (and all applicable notice
and cure periods have expired), or until TENANT's rights are modified because
of an Eminent Domain proceeding pursuant to PARAGRAPH NUMBERED 37 hereof.
59. ARBITRATION - The parties agree to submit to arbitration any
dispute related to this Lease and agree that the arbitration process shall be
the exclusive means for resolving disputes which the parties cannot resolve.
Any arbitration hereunder shall be conducted under the Dispute Resolution
Rules of the American Arbitration Association ("AAA") as modified herein.
Arbitration proceedings shall take place in Las Vegas, Nevada, before a single
arbitrator who shall be a lawyer. All arbitration proceedings shall be
confidential. Neither party shall disclose any information about the evidence
produced by the other party in the arbitration proceedings, except in the
course of judicial, regulatory, or arbitration proceeding, or as may be
demanded by government authority. Before making any disclosure permitted by
the preceding sentence, a party shall give the other party reasonable advance
written notice of the intended disclosure and an opportunity to prevent
disclosure. In connection with any arbitration provisions hereunder, each
party shall have the right to take the deposition of two (2) individuals and
any expert witness retained by the other party, Additional discovery may be
had only where the arbitrator so orders, upon a showing of substantial need,
Only evidence that is directly relevant to the issues may be obtained in
discovery. Each party bears the burden of persuasion of any claim or
counterclaim raised by that party. The arbitration provisions of this Lease
shall not prevent any party from obtaining injunctive relief from a court of
competent jurisdiction to enforce the obligations for which such party may
obtain provisional relief pending a decision on the merits by the arbitrator,
Each of the parties hereby consents to the jurisdiction of Nevada courts for
such purpose. The arbitrator shall have authority to award any remedy or
relief that a court of the State of Nevada could grant in conformity to
applicable law, except that the arbitrator shall have no authority to award
attorneys' fees or punitive damages, Any arbitration award shall be
accompanied by a written statement containing a summary of the issues in
controversy, a description of the award, and an explanation of the reasons for
the award, The arbitrators award shall be final and judgment may be entered
upon such award by any court.
60. LANDLORD BANKRUPTCY PROCEEDING - In the event that the obligations
of LANDLORD under this Lease are not performed during the pendency of a
bankruptcy or insolvency proceeding involving the LANDLORD as the debtor, or
following the rejection of this Lease in accordance with Section 365 of the
United States Bankruptcy Code, then notwithstanding any provision of this
Lease to the contrary, TENANT shall have the right to set off against rents
next due and owing under this Lease (a) any and all damages caused by such
non-performance of LANDLORD's obligations under this Lease by LANDLORD,
debtor-in-possession, or the bankruptcy trustee, and (b) any and all damages
caused by the non-performance of LANDLORD'S obligations under this Lease
following any rejection of this Lease in accordance with Section 355 of the
United States Bankruptcy Code.
61. MEMORANDUM OF LEASE - Upon execution of this Lease, LANDLORD and
TENANT shall execute a Memorandum of Lease in recordable form, which LANDLORD
shall deliver to TENANT for recording at TENANT's option. Said Memorandum
shall be amended as to legal descriptions and commencement and termination
dates when such information is available.
62. LEASEHOLD MORTGAGEE RIGHTS
A. DEFINITIONS
(1) The term "Leasehold Mortgagee" shall mean the holder of the
beneficial interest of a Leasehold Deed of Trust, who has given written notice
to LANDLORD of its name and address for notices.
(2) The term "Leasehold Deed of Trust" shall mean any encumbrance
of the Lease, by a deed of trust, mortgage or other security instrument,
including, without limitation, assignments of rents, issues and profits from
the Leased Premises, to secure repayment of loans made to, or obligations of,
TENANT thereunder.
B. TERMINATION AND MODIFICATION - LANDLORD agrees that, so long as
any Leasehold Mortgagee, its successor or assign holds a Leasehold Deed of
Trust, no termination of the Lease by TENANT and no subordination,
cancellation, surrender or modification of the Lease shall be effective
without the prior written consent of such Leasehold Mortgagee.
C. ENCUMBRANCE AND ASSIGNMENT OF LEASE - LANDLORD'S prior written
consent shall not be required to any of the following provided notice is given
to LANDLORD and LANDLORD is provided copies of all documentation relating
thereto:
(1) TENANT's encumbering the Lease by any Leasehold Deed of
Trust, the possession of the Leased Premises by a Leasehold Mortgagee or by a
receiver under a Leasehold Deed of Trust, and a sale or assignment of the
Lease by foreclosure under a Leasehold Deed of Trust, or by a deed or
assignment in lieu of foreclosure; or
(2) Further assignments or subleases of the Lease by a Leasehold
Mortgagee and, to the extent not in conflict with the Lease, the exercise of
any other rights, powers or remedies any Leasehold Mortgagee may have under a
Leasehold Deed of Trust; or
(3) Assignment of all or any part of any interest in the Lease
acquired by a purchaser at a foreclosure sale under a Leasehold Deed of Trust
or by a deed or assignment in lieu of foreclosure to any person or entity,
including, without limitation, a Leasehold Mortgagee.
LANDLORD consents to any of the above-described assignments without
restriction. Nothing in the Lease shall impose on a Leasehold Mortgagee the
obligations of TENANT under the Lease solely because such Leasehold Mortgagee
accepts a Leasehold Deed of Trust.
D. NOTICE OF DEFAULTS - LANDLORD agrees to give Leasehold Mortgagee
immediate notice of all defaults by TENANT under the Lease, and to
simultaneously give to Leasehold Mortgagee a written copy of all notices and
demands that LANDLORD gives to TENANT. No notice or demand under the Lease
shall be effective until after notice is received by Leasehold Mortgagee. Any
notices of default given by LANDLORD under the Lease shall describe the
default(s) with reasonable detail. Leasehold Mortgagee shall have the right
to cure any breach or default within the time periods given below.
E. LEASEHOLD MORTGAGEE'S CURE RIGHTS
(1) After receipt by TENANT of a notice of default under the
Lease and the expiration of any applicable period of cure given to TENANT
under the Lease, LANDLORD shall deliver an additional notice ("Mortgagee's
Notice") to Leasehold Mortgagee (which Leasehold Mortgagee shall be
non-related and non-affiliated as to TENANT) specifying the default and
stating that TENANT'S period of cure has expired. Leasehold Mortgagee shall
thereupon have the additional periods of time to cure any uncured default, as
set forth below, without payment of default charges, fees, late charges or
interest that might otherwise be payable by TENANT. LANDLORD shall not
terminate the Lease or exercise its other remedies under the Lease if:
(i) Within THIRTY (30) days after Leasehold Mortgagee's
receipt of the Mortgagee's Notice, Leasehold Mortgagee (A) cures the default,
or (B) if the default reasonably requires more than THIRTY (30) days to cure,
commences to cure said default and diligently prosecutes the same to
completion; or,
(ii) Where the default cannot be cured by payment or
expenditure of money or without possession of the Leased Premises or
otherwise, Leasehold Mortgagee initiates foreclosure or other appropriate
proceedings within SIXTY (60) days after receipt of the Mortgagee's Notice,
cures all other defaults reasonably capable of cure, complies with all other
covenants and conditions of the Lease reasonably capable of compliance, and
continues to pay all rents, real property taxes and assessments, and insurance
premiums to be paid by TENANT under the Lease, Leasehold Mortgagee shall then
have SIXTY (60) days, following the later to occur of (A) the date of
execution and delivery of a New Lease of the Leased Premises pursuant to
PARAGRAPH NUMBERED E(4) below, or (B) the date on which Leasehold Mortgagee or
its nominee is able to occupy the Leased Premises following eviction of or
vacating by TENANT under the Lease, to cure such default; provided, however,
that if any such default, by its nature, is such that it cannot practicably be
cured within SIXTY (60) days, then Leasehold Mortgagee shall have such time as
shall be reasonably necessary to cure the default provided that Leasehold
Mortgagee commences such cure within such SIXTY (60) day period and thereafter
diligently prosecutes the cure to completion.
(2) LANDLORD agrees to accept performance by Leasehold Mortgagee
of all cures, conditions and covenants as though performed by TENANT, and
agrees to permit Leasehold Mortgagee access to the Leased Premises to take all
such actions as may be necessary or useful to perform any condition or
covenants of the Lease or to cure any default of TENANT.
(3) If Leasehold Mortgagee elects any of the above-mentioned
options, then upon Leasehold Mortgagee's acquisition of the Lease by
foreclosure, whether by power of sale or otherwise or by deed or assignment in
lieu of foreclosure, or if a receiver be appointed, the Lease shall continue
in full force and effect, provided that, if Leasehold Mortgagee elects the
option provided in Subsection E(l)(ii) above, then upon Leasehold Mortgagee's
acquisition of the Lease Leasehold Mortgagee shall cure all prior defaults of
TENANT under the Lease that are reasonably capable of being cured by Leasehold
Mortgagee within the time set forth in Subsection E(l)(ii) above, and LANDLORD
shall treat Leasehold Mortgagee as TENANT under the Lease. If Leasehold
Mortgagee cures all defaults by TENANT and does not acquire the Lease, or if
Leasehold Mortgagee commences an action as set forth in Subsection E(l)(ii),
and thereafter TENANT cures such defaults (which cure LANDLORD shall be
obligated to accept) and Leasehold Mortgagee then terminates all proceedings
under the option in Subsection E(l)(ii) above, then the Lease shall remain in
full force and effect between LANDLORD and TENANT.
(4) In the event the Lease is terminated for any reason prior to
the end of the Lease term (unless the Lease is terminated due to Leasehold
Mortgagee's failure to exercise its rights under this Section 62, LANDLORD
shall enter into a new lease ("New Lease") with Leasehold Mortgagee or
Leasehold Mortgagee's nominee covering the Leased Premises, provided that
Leasehold Mortgagee (i) requests such New Lease by written notice to LANDLORD
within SIXTY (60) days after written notice by LANDLORD of termination of the
Lease, and (ii) cures all prior defaults of TENANT that are reasonably capable
of being cured by Leasehold Mortgagee, The New Lease shall be for the
remainder of the Lease term, effective at the date of such termination,, and
shall only include all the rents and all the covenants, agreements,
conditions, provisions, restrictions and limitations contained in the Lease.
In connection with a New Lease, LANDLORD shall assign to Leasehold Mortgagee
or its nominee all of LANDLORD's interest in all existing subleases of all or
any part of the Leased Premises and all attornments given by the sublessee's.
LANDLORD shall not terminate or agree to terminate any sublease or enter into
any new lease or sublease for all or any portion of the Leased Premises
without Leasehold Mortgagee's prior written consent, unless Leasehold
Mortgagee fails to deliver its request for a New Lease under this PARAGRAPH
62. In connection with any such New Lease, LANDLORD shall, by grant deed,
convey to Leasehold Mortgagee or its nominee title to the improvements, if
any, which become vested in LANDLORD as a result of termination of the Lease.
LANDLORD shall allow to the TENANT under the New Lease a credit against rent
equal to the net income, if any, derived by LANDLORD from the Leased Premises
during the period from the date of termination of the Lease until the date of
execution of the New Lease under this PARAGRAPH 62.
(5) Leasehold Mortgagee or any other purchaser at a foreclosure
sale of the Leasehold Deed of Trust (or Leasehold Mortgagee or its nominee if
one of them enters into a New Lease with LANDLORD) shall succeed to all the
interest of TENANT in any security or other deposits or other impound payments
paid by TENANT to LANDLORD.
F. PERMITTED DELAYS - So long as Leasehold Mortgagee is prevented
by any process or injunction issued by any court or by any statutory stay, or
by reason of any action by any court having jurisdiction of any bankruptcy or
insolvency proceeding involving TENANT, from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof, Leasehold
Mortgagee shall not be deemed for that reason to have failed to commence such
proceedings or to have failed to diligently prosecute such proceedings,
provided that Leasehold Mortgagee uses reasonable efforts to contest and
appeal the issuance or continuance of any such process, stay or injunction.
G. DEFAULTS DEEMED CURED - On transfer of the Lease at any
foreclosure sale under the Leasehold Deed of Trust or by deed or assignment in
lieu of foreclosure, or upon creation of a New Lease, any or all of the
following defaults relating to the prior owner of the Lease shall be deemed
cured:
(1) Attachment, execution or other judicial levy upon the Lease;
(2) Assignment of the Lease for the direct or indirect benefit of
creditors of the prior TENANT;
(3) Judicial appointment of a receiver or similar officer to take
possession of the Lease;
(4) Filing any petition by, for or against TENANT under any
chapter of the federal Bankruptcy Act or any federal or state debtor relief
statute, as amended;
(5) Any other default personal to TENANT and/or not otherwise
reasonably curable by Leasehold Mortgagee.
H. MERGER - So long as an Leasehold Mortgagee holds a Leasehold
Deed of Trust, the fee title to the Leased Premises and the leasehold estate
created by the Lease shall not merge unless all Leasehold Mortgagees expressly
consent to the merger in writing. This provision shall apply even it TENANT
or LANDLORD or any third party acquires both the fee title and the Lease.
I. CONDEMNATION - Any condemnation award to which TENANT is
entitled shall be paid directly to Leasehold Mortgagee. Leasehold Mortgagee
shall have the right to participate in all condemnation award proceedings held
by the condemning authority and the allocation of such award.
J. INSURANCE - Any insurance proceeds payable from any policy of
insurance (other than liability insurance) required by the Lease shall be paid
to Leasehold Mortgagee. Leasehold Mortgagee shall have the right to
participate in all adjustments, settlements, negotiation or actions with the
insurance company regarding the amount and allocation of any such insurance
proceeds. Any insurance policies permitted or required by the Lease shall
name Leasehold Mortgagee as an additional insured or loss payee, as
appropriate.
K. RESTORATION - Leasehold Mortgagee, if it exercises any of its
remedies under this PARAGRAPH 62 above, shall have no obligation to restore or
repair damage to the improvements that cost in excess of available insurance
proceeds.
L. LIMITATION ON LIABILITY - Leasehold Mortgagee shall not be
liable to perform TENANT's obligations under the Lease, unless and until
Leasehold Mortgagee acquires the Lease, by foreclosure under power of sale or
otherwise, by deed or assignment in lieu of foreclosure, or under the New
Lease provisions hereof. The liability of any Leasehold Mortgagee who
acquires the Lease shall be limited to Leasehold Mortgagee's interest in the
Lease. Leasehold Mortgagee shall not be liable for any such obligations under
the Lease following the assignment of its interest under the Lease to any
other transferee or any purchaser at foreclosure, whether conducted by power
of sale or otherwise. An interest in a Leasehold Deed of Trust securing any
unpaid part of the purchase price for the Lease shall not be considered
retention of an interest in the Lease for purposes of this subsection.
M. PRIORITY - The Lease, and any extensions, renewals or
replacements thereof, and a permitted sublease entered into by TENANT as
sublessor, and any Leasehold Deed of Trust or other encumbrance recorded by
Leasehold Mortgagee shall be superior to any mortgages, deeds of trust or
similar encumbrances placed by LANDLORD on the Leased Premises and to any lien
right, if any, of LANDLORD on the buildings, and any furniture, fixtures,
equipment or other personal property of TENANT upon the Leased Premises.
N. ESTOPPEL CERTIFICATE -
(a) Within 20 calendar days of written request by Leasehold
Mortgagee, LANDLORD shall execute and deliver to Leasehold Mortgagee or to any
proposed purchaser of TENANT's estate, a statement certifying as follows:
(1) The existence of the Lease and amendments to it;
(2) The last date LANDLORD received rent under the Lease,
the date such rent was due and the amount thereof;
(3) Whether there are any Events of Default under the Lease
(or whether there is or has been any event, act or omission which would
constitute an event of default with notice or lapse of time or both) to the
best knowledge of LANDLORD as of the date of the certificate;
(4) TENANT's satisfaction of all conditions precedent under
the Lease for commencement of construction of the improvements, or setting
forth the conditions that remain unsatisfied;
(5) Acknowledging receipt of Leasehold Mortgagee's name and
address for notice;
(6) That LANDLORD understands the recipient will rely on the
certificate.
(b) Within 20 calendar days of written request by LANDLORD or
LANDLORD's Fee Mortgagee, TENANT shall execute and deliver to both such
parties or to any proposed purchaser of LANDLORD's estate, a statement
certifying as follows:
(1) The existence of the Lease and amendments to it;
(2) The last date LANDLORD received rent under the Lease,
the date such rent was due and the amount thereof;
(3) Whether there are any Events of LANDLORD Default under
the Lease (or whether there is or has been any event, act or omission which
would constitute such an event of default with notice or lapse of time or
both) to the best knowledge of TENANT as of the date of the certificate;
(4) LANDLORD's satisfaction of all conditions precedent
under the Lease for commencement of construction of the improvements, or
setting forth the conditions that remain unsatisfied;
(5) Acknowledging receipt of Leasehold Mortgagee's or
purchaser's name and address for notice;
(6) That TENANT understands the recipient will rely on the
certificate.
0. NOTICE - Notices and other communications required by the Lease
to be given to Leasehold Mortgagee shall be delivered in accordance with
PARAGRAPH NUMBERED 34 of the Lease, at the address provided by Leasehold
Mortgagee. This address may be changed by a notice given in the same manner.
No notices given to TENANT by LANDLORD pursuant to the Lease shall be deemed
effective unless and until Leasehold Mortgagee receives a copy thereof.
P. SUCCESSORS - The right and benefits of Leasehold Mortgagee under
this Amendment shall benefit and may be exercised by the holder of any
Leasehold Deed of Trust given now or in the future as an encumbrance on the
Lease.
Q. OPTIONS -LANDLORD and TENANT agree that Leasehold Mortgagee may
exercise any OPTION to extend the term of the Lease which is granted to TENANT
under or in connection with the Lease. LANDLORD agrees to accept notice(s) of
exercise of such option(s) signed by Leasehold Mortgagee with the same effect
as though the notice were signed and delivered by TENANT, which notice may be
delivered by Leasehold Mortgagee within FIVE (5) days after the termination of
the period of time in which TENANT must exercise such option. In the event
TENANT fails to complete such extension, LANDLORD shall notify Leasehold
Mortgagee of such failure, and Leasehold Mortgagee shall thereupon have the
option to complete such extension within an additional period of time equal to
the time period originally available to TENANT, commencing from the date such
notice is received by Leasehold Mortgagee.
R. CLAIMS - LANDLORD and TENANT shall deliver to Leasehold
Mortgagee notice of any litigation or arbitration proceedings between the
parties or involving the Leased Premises or the Lease. Leasehold Mortgagee
shall have the right, at its option, to intervene and become a party to any
such proceedings. If Leasehold Mortgagee elects not to intervene or become a
party, LANDLORD shall deliver to Leasehold Mortgagee prompt notice of and a
copy of any award, decision or settlement agreement made in connection with
any such proceeding.
S. FURTHER AMENDMENTS - LANDLORD and TENANT shall cooperate in
including in the Lease by suitable amendment from time to time any provision
which may be reasonably requested by any proposed Leasehold Mortgagee for the
purpose of implementing the mortgagee protection provisions contained in this
PARAGRAPH NUMBERED 62 and allowing that Leasehold Mortgagee reasonable means
to protect or preserve the lien of its Leasehold Deed of Trust upon the
occurrence of a default under the terms of the Lease. LANDLORD and TENANT
each agree to execute and deliver (and to acknowledge for recording purposes,
if necessary) any agreement required to effect any such amendment; provided
that any such amendment shall not in any way affect the term or rent under the
Lease or otherwise in any material respect adversely affect any rights of
LANDLORD under the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD: URBAN LAND OF NEVADA, a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ T. H. ▇▇▇
▇▇▇▇▇▇▇ T. H. ▇▇▇, Vice President
TENANT: ALL AMERICAN SPORTPARK, INC., a Nevada corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Partner
GUARANTY
The undersigned hereby unconditionally guarantees payment and performance of
the terms, covenants and conditions contained in the above INDENTURE OF LEASE
to be kept, performed and paid by TENANT, ALL AMERICAN SPORTPARK, INC. in
favor of LANDLORD, URBAN LAND OF NEVADA, a Nevada corporation.
DATED: This 9th day of June, 1997.
SAINT ▇▇▇▇▇▇▇ GOLF CORPORATION, INC., a Nevada corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
EXHIBIT "A"
ALL-AMERICAN SPORTPART
Proposed Lease Area 2
[MAP]
EXHIBIT "B"
W.O. #993-C370
File: C370ex13.doc
April 7, 1997
By: RNB
Checked by: GDR
ESI ENGINEERS AND
SURVEYORS, INC.
EXPLANATION: Proposed property description for LEASE AREA 2
BASIS OF BEARING:
The basis of bearing for this property is the northerly line of the Northwest
Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇.▇.,
▇▇▇▇▇▇ of ▇▇▇▇▇, State of Nevada, which bears South 88o 50' 29" West, as per
map recorded in File 59, Page 55 of Surveys in the Office of the County
Recorder of said County.
Being a portion of the Northwest Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇▇ of ▇▇▇▇▇, State of Nevada, more
particularly described as follows:
COMMENCING at the northwest corner of said Section 4, said point being the
centerline intersection of Las Vegas Boulevard South (SR-91) and Sunset Road;
Thence along the northerly line thereof, said line also being the centerline
of said Sunset Road, North 88o 50' 29" East, 1016.24 feet;
Thence departing said line, South 010 09' 31" East, 50.00 feet to a point on
the southerly right-of-way line of Sunset Road, being 50.00 feet wide as per
document recorded April 27, 1972 in Book 226, Instrument No. 185689, Official
Records, said point also being the POINT OF BEGINNING;
Thence along said right-of-way line, North 88o 50' 29" East, 1365.65 feet to a
line being 249.99 feet westerly and parallel with measured at right angles
from the easterly line of said Northwest Quarter (NW 1/4);
Thence along said line, South 00o 35' 14" East, 870.00 feet;
Thence departing said line, South 89o 24' 46" West, 957.01 feet;
Thence North 29o 07' 55" West, 724.00 feet;
Thence South 88o 50' 29" West, 79.92 feet;
Thence North 01o 09' 31" West, 221.00 feet to the POINT OF BEGINNING.
Said parcel contains 23.61 acres, more or less.
"The above described parcel of land represents a portion of the Northwest
Quarter (NW 1/4) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇.▇.,
▇▇▇▇▇▇ of ▇▇▇▇▇, State of Nevada and is not intended for inclusion in a
document conveying fee ownership. To do so is a violation of state law and or
local ordinance."
END OF DESCRIPTION
EXHIBIT "C"
[MAP]
