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EXHIBIT 10.9
LEASE OF COMMERCIAL PROPERTY * UNITED STATES OF AMERICA
LEASE BY XXXXXX X. AND XXXX * STATE OF LOUISIANA
XXX XXXX
TO FAIR GROUNDS CORPORATION * PARISH OF JEFFERSON
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Xxxxxx X. and Xxxx Xxx Xxxx (herein collectively called Lessor) hereby lease to
Fair Grounds Corporation (herein called Lessee), the following described
premises:
Building and all improvements located upon and within the property
described in Exhibits "B" and "C" annexed hereto.
This lease is for a term of six (6) months, commencing August 1,1995 and ending
January 31, 1996.
This lease is made for and in consideration of the covenants herein contained
and for a monthly rental of $8,200.00; the said rental to be payable monthly in
advance on the first day of each and every month during the term of this lease.
If Lessee shall fail to pay any rental within five (5) days after same is due,
Lessee shall be obligated to pay a late charge equal to the greater of One
Hundred and no/100 ($100.00) or five percent (5%) of any rental payment or
portion thereof not paid when due.
The net rental hereinabove fixed for the term hereof means that, in addition
to the said amounts of actual rental, the Lessee will pay all taxes levied by
the State and all political subdivisions on the leased property for the period
covered by this lease, and will pay all insurance and premiums on such policies
of fire and windstorm, as the Lessors reasonably direct be carried against the
leased property during the period covered by this lease. The Lessor shall not
require the carrying of fire insurance beyond the full insurable value of the
leased property, nor the carrying of windstorm insurance beyond fifty percent
(50%) of the amount of fire insurance carried.
Within thirty (30) days after Lessor's receipt of tax bills, Lessor shall
notify Lessee in writing and shall include an invoice showing the full amount of
such taxes. A legible copy of the original tax bills shall be attached to said
invoice for Lessee's review.
The taxes and insurance premiums herein provided to be paid by Lessee are a
part of the rent for the leased premises, and, should the Lessee fail to pay
promptly and punctually any of said taxes, or insurance premiums, the Lessor
may, but need not, pay same and recover repayment thereof at once from lessee
with interest at the rate of eight percent (8%) per annum from date of payment
of same by Lessor.
The Lessee will make all necessary repairs, excluding repairs to the roof to
keep the leased property in a good order as it now is, ordinary
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wear and tear excepted, and is also to keep all toilets in repair to conform
with good sanitary conditions. The Lessee is to have the right to sublet the
leased premises in whole, or part, to any subtenant for the conduct of any
mercantile business of unobjectionable character.
Lessor will not be responsible for damage caused by leaks in the roof, by
bursting of pipes by freezing or otherwise, or by any vices or defects of the
leased property, or the consequences thereof, except in the case of positive
neglect or failure to take action toward remedying of such defects within
reasonable time after having written notice from Lessee of such defects and the
damage caused thereby. Should Lessee fail to promptly so notify Lessor, in
writing, of any such defects, Lessee will become responsible for any damage
resulting to Lessor or other parties.
The said premises and appurtenances, including locks, keys, lighting, air
conditioning & heating, and plumbing systems, and fixtures and attachments, are
delivered in good order and Lessee is obligated to keep all of same in like
order during the term of this lease; to keep in repair all plumbing, even when
injured by freezing; to keep the drains and plumbing clean and to so deliver
them at the expiration of this lease; to pay all bills for water, electricity
and similar charges as may be attributable to leased premises, to comply with
all Laws and Ordinances of the State, City, Board of Health and other public
bodies, now in force or which may hereafter be enacted of whatever character, at
Lessee's own expense; and to notify Lessor or agent, in writing, any time the
leased premises will be unoccupied, so that necessary vacancy permits may be
obtained from Lessor's insurance companies, and upon Lessee's failure to do so,
Lessor may take such steps as Lessor thinks necessary for Lessor's protection,
including retaking possession of the premises without relieving or impairing
Lessee's liability.
No repair shall be due Lessee except such as may be rendered necessary by
fire or other casualty, not occasioned by fault or negligence of Lessee. Lessor
will not be responsible for damages of any sort to any persons or property,
however occasioned, unless caused by the negligence of Lessor; and Lessee shall
hold Lessor harmless from any claims by and or liability to third persons
however arising, unless caused by negligence of Lessor. Lessor shall at all
times have the right to enter the premises for the purpose of inspection and of
making such, if any repairs as Lessor may be bound for or elect to make.
The care, maintenance and repairs of machinery, glass or plate glass are
assumed by Lessee, together with all liability or claims fire damages, and
Lessee shall maintain liability insurance to the extent of $500,000.00.
Should Lessee be unable to obtain possession on date of commencement of
lease because of delays by tenants, or should there be any other delay in
granting possession, not caused by fault of Lessor, this lease shall not be
affected thereby, and Lessee shall not be entitled to any damages beyond the
remission of rent for such term during which he is deprived possession.
The destruction in whole or in part of the leased premises, by fire or other
casualty, will not vitiate this lease, but the Lessor shall rebuild or repair
said leased premises as speedily as practicable, and except as hereinafter
stated, substantially as said leased premises were before
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such destruction, and the Lessee shall resume occupancy immediately upon the
rebuilding or the repairing being completed, and shall be entitled simply to a
credit for the period during which the Lessee shall have been excluded from the
occupancy of the premises; provided, however, that where the destruction of the
leased premises in whole or in part occurs at so late a period that the Lessee
could not be restored to the enjoyment of the leased premises for a period of at
least six (6) months before the expiration of this lease or any extensions
thereof, the Lessee shall be under no obligation to resume possession, and the
Lessor shall be under no obligation to rebuild or repair.
Lessee is bound not to do or suffer any act to be done or omitted, which
would forfeit the insurance, or increase the rate thereof, on any property of
Lessor or contents thereof, to whomsoever belonging; not to transfer this lease,
in whole or in part, without the written consent of Lessor, which written
consent shall not be unreasonably withheld; at the end of this lease to return,
by actual delivery of the keys, without further notice, possession of the said
premises and appurtenances, broom-cleaned and free of trash, in like good order
as received, the usual decay, wear and tear only excepted; to replace all broken
glass and to remove any and all signs painted or placed in or upon the leased
premises before leaving.
The Lessee shall not be considered in default as to any obligation or
condition of this lease, and the lease shall not be considered as violated in
any degree unless the status claimed to be a default or violation shall continue
for five (5) days after written notice thereof is delivered by registered mail
to the Lessee at the leased premises by or on behalf of the Lessor.
Lessee is obligated not to make any additions or alterations whatsoever to
the premises without written permission. All additions, alterations or
improvements made by Lessee with or without consent of Lessor, no matter how
attached (except movable trade fixtures), must remain the property of the
Lessor, unless otherwise stipulated herein, Lessee however, expressly waiving
all right to compensation thereof.
Lessee shall comply in every respect at Lessee's own expense, with the rules
and regulations of the Louisiana Fire prevention Bureau, or those of any similar
bureau or association in existence at the time.
Should Lessee at any time violate any of the conditions of this lease, or
fail to comply with any of Lessee's obligations hereunder, or fail to pay the
rent or water xxxx or similar charges punctually at maturity, as stipulated, or
upon the filing of a bankruptcy, receivership or respite petition by or against
Lessee, or upon Lessee's suspension, failure or insolvency, the rent for the
whole unexpired term of this lease shall, without putting Lessee in default, at
once become due and exigible, and in any such event, Lessor shall have the
option either at once to demand the entire rent for the whole term or to
immediately cancel this lease without putting the Lessee in default; Lessee to
remain responsible for all damages or losses suffered by Lessor; Lessee hereby
assenting thereto and expressly waiving the legal notice to vacate the premises.
Failure to strictly and promptly enforce these conditions shall not operate as a
waiver of Lessor's rights, Lessor expressly reserving the right to always
enforce prompt payment of rent, or to cancel this lease, regardless of any
indulgences or extensions previously granted. Failure
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to comply with any condition or obligation of this lease of this lease will make
Lessee liable for any loss or damage sustained. Should Lessee at any time use
the leased premises or any option thereof for any illegal or unlawful purpose,
or commit, or permit or tolerate the commission therein of any act made
punishable by fine or imprisonment under the laws of the United States or the
State of Louisiana, or any ordinance of this City or Parish, the remedies set
forth in the preceding paragraph shall be available to Lessor immediately
without necessity of giving any notice to Lessee.
At the expiration of this lease, or its termination for other causes, Lessee
is obligated to immediately surrender possession. Lessee also expressly waives
any notice to vacate at the expiration of this lease and all legal delays, and
hereby confesses judgment with costs placing Lessor in possession to be executed
at once. Should Lessor allow or permit Lessee to remain in the leased premises
after the expiration of this lease, this shall not be construed as a
reconduction of this lease.
No auction sales shall be conducted on the premises without written consent
of the Lessor.
Should any claim in favor of Lessor upon this lease be placed in the hands
of an agent or attorney to give special attention to the enforcement of such
claim, Lessee shall in order to protect Lessor fully against all expenses, pay
as fees and compensation to such agent or attorney, an additional sum of ten
percent (10%) of the amount due on such claim, provided that the amount is over
$1,000.00, and twenty percent (20%) if that amount be $1,000.00 or under,
together with all costs, charges and expenses.
Lessor hereby reserves the right to post and to keep posted on the property,
signs, "For Sale" or "For Rent", during the sixty days preceding the expiration
of this lease, and Lessee hereby consents to allow the premises to be inspected
on an order from Lessor or agent. in the event that Lessee is absent from the
City, at any time during the last mentioned period, keys to the premises will be
left with some representative of Lessee in order that the property may be shown,
and Lessor or agent will be advised in writing where the keys may be obtained.
ADDITIONAL TERMS
1. Lessor warrants that it has full right and authority to lease the
Leased Premises upon the terms and conditions herein set forth;
and the Lessee shall peacefully and quietly hold and enjoy the
Leased Premises for the full term hereof so long as it does not
default in the performance of any of its covenants hereunder.
Lessor further warrants as of the Commencement Date that: a)
Lessor is fully cognizant of the intended use of the demised
premises by Lessee, and that such use is in full conformity with
all municipal and/or parish zoning ordinances; and b) the
building or structure to be occupied by Lessee meets or exceeds
ail minimum municipal, parish or state building codes and
regulations.
2. Lessee shall have the right and option to extend the terms of the lease
for the number of terms and for the number of years for
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each term set out herein. Lessee shall give notice of its intent to extend
its terms hereunder by written notice to Lessor given not sooner than one
(1) year nor later than sixty (60) days prior to the end of the then
current terms. If extended hereunder, the extended term shall be under all
of the same terms and conditions as set out in the lease, except as
modified herein:
(a) Number of Option Terms: See Exhibit "A".
(b) Length of Option Terms: See Exhibit "A".
(c) Annual Basic Rental for
Extended Term: See Exhibit "A".
3. Lessor guarantees Lessee access to a minimum of 65 parking spaces upon the
leased premises and within one hundred (100) feet thereof. All such
parking spaces shall be hard-surfaced or shelled, and Lessee shall have
exclusive use thereof.
4. Lessee may commence the installation of improvements prior to August 1,
1995 but in no event shall rental term begin prior to that date and Lessee
shall not be responsible for rentals prior thereto.
5. Lessor hereby grants to Lessee a right of first refusal for the purchase
of the leased premises, upon Lessor's receipt of a bona fide offer to
purchase from a third party. Such right of first refusal shall be
exercised in the following mariner:
Upon Lessor's receipt of a bona fide offer to purchase from a third party,
Lessor shall notify Lessee in writing, via certified or registered mail
within five (5) calendar days of receipt of such offer, and shall include
therewith a copy of such offer.
Upon receipt by Lessee of such notice from Lessor, Lessee shall have ten
(10) calendar days to exercise, in writing, Lessee's right of first refusal
by tendering to Lessor, via certified or registered mail, either Lessee's
offer to purchase or Lessee's refusal to exercise such right of first
refusal.
6. Lessor shall install or reinstall the basic kitchen equipment, movables
and plant previously used in the leased premises by the former tenant, and
shall make the basic kitchen plant operational.
Lessor does not make any representations as to the appropriateness of said
equipment for Lessee's intended use, but does warrant that all such
equipment shall be operational on or before Commencement date of the Lease.
Lessee shall thereafter be responsible for the maintenance of said equipment
for the term of the lease and any renewals or extensions thereof.
All such kitchen equipment, movables and fixtures shall be listed and
inventoried, and shall remain the property of Lessor, with Lessee having the
exclusive use of same for the term of the Lease and any renewals or
extensions thereof.
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The provisions contained in this paragraph also include all tables, chairs,
stools, etc. currently in place on the premises.
7. If for any reason beyond the control of the parties, it becomes impossible
to receive proper television transmission signals, then this lease may be
terminated by Lessee upon sixty (60) days written notice.
8. This lease shall be subject to and predicated upon review and approval by
the Parish of Jefferson and the Louisiana State Racing Commission.
9. * Lessee agrees to place Lessor a ten thousand dollar ($10,000.00) rental
deposit. This deposit will become due upon the execution of this lease.
10. If for any reason beyond the control of the parties, Lessee loses
its license to place and operate video poker machines or OTB
activities on the premises, then this lease may be terminated by
Lessee upon sixty (60) days written notice.
11. Lessor shall be responsible for protection of the leased premises
from termite and/or wood destroying insect infestation and damage.
This lease is to take effect in Louisiana, and is to be governed and controlled
by laws of that state.
Executed at New Orleans, Louisiana, this 1st day of August, 1995.
LESSOR:
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/s/Xxxxxx Fifee By: /s/Xxxxxx X. Xxxx
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/s/Xxxxxxx X. Xx Xxxxxx By: /s/Iris Xxx Xxxx
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(witnesses) Title: Owners
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LESSEE: Fair Grounds
Corporation ------
/s/Xxxxxx Fifee By:/s/Xxxxx X. Xxxxxx
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/s/Xxxxxxx X. Xx Xxxxxx Title: President
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(witnesses)
* Deposit will be tendered upon completion of provisions in # 8.
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EXHIBIT "A"
Rent for the subject property to be paid according to the following schedule:
Primary term: Six(6) months at $8,200.00 per month.
First Option: Eighteen(18) months at $8,500.00 per month.
Second Option: Twenty-four(24) months at $9,000.00 per month.
Third Option: Twenty-four(24) months at $9,500.00 per month.
Fourth Option: Twenty-four (24) months at $10,000.00 per month.
As additional consideration for the subject lease, Lessor will receive four (4)
"free admission" clubhouse passes for the Fair Grounds Race Track for the entire
term of this lease.
Fair Grounds Corporation
/s/Xxxxxx X. Xxxx
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/s/Iris Xxx Xxxx By:/s/Xxxxx X. Xxxxxx
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Lessor Lessee
8/1/95 8/1/95
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Date Date
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