Exhibit 10.9
LEASE AGREEMENT
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This LEASE AGREEMENT (this "Lease"), made the 25th day of April, 2001
between SUN INTERNATIONAL NORTH AMERICA, INC., a Delaware corporation, having an
address at 0000 Xxxx Xxxxxxx Xxxx., Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Landlord"),
and COLONY RIH ACQUISITIONS, INC., a Delaware corporation, having an address at
c/o Colony Capital, LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
1. Premises.
Landlord has agreed to let and hereby does let to Tenant, and Tenant
has agreed to take and hereby does take from Landlord, the parcels of land and
improvements thereon located in the County of Atlantic, State of New Jersey,
more particularly described on Exhibit A attached hereto (the "Premises"),
including the improved premises located at and known as 000 X. Xxxxxxxxx Xxx.,
Xxxxxxxx Xxxx, Xxxxxx of Atlantic, State of New Jersey (as more particularly
identified on Exhibit A, the "Building Site"), sites designated as Xxxxx 000,
Xxx 00 in the City of Pleasantville, Block 588, Lot 11 in the Township of
Xxxxxxxx, Block 4214, Xxx 0 xx xxx Xxxxxxxx xx Xxx Xxxxxx, Xxxxx 226.01, Lot 11
in the City of Absecon, each in the County of Atlantic, State of New Jersey
(each as more particularly identified on Exhibit A, the "Billboard Sites"), and
the balance of the lands described on Exhibit A being comprised of vacant land.
2. Rent.
In consideration of Landlord's carrying costs with respect to the
Property, Tenant shall make monthly payments as described herein to Seller (the
"Carrying Cost Payments") on the first day of each month during the Term (as
defined herein) in the amount of $100,000 each, such payments to be pro-rated
for any partial month falling within the Term. Simultaneously herewith, Tenant
has delivered a check in the amount of $20,000.00, subject to collection, in
payment of the Carrying Cost Payment for the period from the date hereof through
the end of April, 2001.
3. Term; Option Agreement.
(a) The initial term of this Lease shall be two years, to commence on
the date hereof (the "Commencement Date") and to end on the midnight of the day
preceding the second anniversary of the date hereof (as it may be extended or
earlier terminated in accordance with the provisions of this Lease, the "Term").
(b) Except as set forth in Section 3(c), the Term of this Lease shall
be contemporaneous with the term of the Option Agreement dated the date hereof
between Landlord and Tenant (the "Option Agreement") and shall be automatically
extended for a concurrent extension period if the Option Agreement is extended
in accordance with its terms. This Agreement shall terminate automatically upon
the expiration or termination of the Option Agreement.
(c) Upon the expiration of the Term hereof or in the event of a
termination or expiration of the Option Agreement other than due to a default by
Tenant, Tenant shall have the right to continue this Lease as a month-to-month
tenancy, by giving Landlord a "Month-to-Month Extension Notice" prior to or
simultaneously with such expiration or termination, and all of the provisions of
this Lease shall continue to apply to such month-to-month tenancy; provided
that the renewal provisions of Section 3(b) shall not apply to such tenancy and,
during such month-to-month tenancy, Tenant shall pay rent at a rate equal to the
greater of $100,000 per month or the Fair Market Rental Rate as determined
pursuant to Section 22 hereof (provided, however, that until such time as the
new rental rate is determined, Tenant shall continue to make monthly payments of
rent at the then existing rental rate and, upon such determination, Landlord and
Tenant shall make such adjustments as are required to reflect the new rental
rate). At Landlord's option from time to time exercised upon notice to Tenant (a
"Rent Adjustment Notice"), but not more often than once in any twelve month
period, the Fair Market Rental Rate may be re-determined as of the date of the
Rent Adjustment Notice and the rent payable pursuant to this Section 3(c) during
the month to month tenancy shall be accordingly adjusted as of the date of the
Rent Adjustment Notice to that determined pursuant to the provisions hereof and
of Section 22 of this Lease, such new rental rate to apply from the date of
Landlord's Rent Adjustment Notice until such date, if any, as of which a new
Rent Adjustment Notice is given by Landlord in accordance with the provisions
hereof. Any month-to-month tenancy of Tenant pursuant to the provisions of this
Section 3(c) may be terminated (i) by Tenant upon thirty days' written notice to
Landlord or (ii) by Landlord in the event that Landlord enters into a letter of
intent or other agreement for the sale of the Premises or if Landlord elects to
develop the Premises, in which event such termination shall be effective 30 days
after Landlord's notice of any of the foregoing; and, if Landlord enters into a
letter of intent or agreement of sale to sell a portion of the Premises or
elects to develop a portion of the Premises, the Lease shall be terminated as to
those portions and continued as to the remaining portion in which case the rent
shall be pro rated on a square footage basis.
4. Impositions and Service Charges.
(a) Tenant shall pay or cause to be paid, before delinquency, all
charges for public or private utility or communication services and any
sprinkler systems and protective services at any time rendered to or in
connection with the Premises, shall comply with all contracts relating to such
services, and shall do all other things required for the maintenance and
continuance of all such services. Upon the expiration or earlier termination of
this Lease, the charges for such services shall be prorated between the parties
as of the date of such expiration or termination on the basis of meter readings,
receipts or other evidence of payment of amounts due reasonably satisfactory to
Landlord.
(b) Tenant shall pay all taxes (excluding real estate taxes on the
Premises), assessments, levies and other governmental charges (including any
taxes, assessments, levies and charges for public improvements, benefits or
services, no matter when commenced or completed), general, special, ordinary,
extraordinary and otherwise, whether or not now customary or within the
contemplation of the parties, together with all interest and penalties thereon,
which, pursuant to Applicable Laws in effect from time to time, are allocable to
any period from and after the Commencement Date and prior to the expiration of
the Term, that are levied or imposed upon or assessed against (i) this Lease or
the leasehold estate hereby created, (ii) the gross receipts from the Premises
or the earnings arising from the use thereof, (iii) Landlord by reason of any
actual or asserted engagement by Landlord, directly or indirectly, in any
business, occupation or other activity in connection with the Premises, or (iv)
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises, other than (A) franchise or capital stock
taxes of Landlord, or (B) income, estate,
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inheritance, succession, transfer, stamp or gift taxes of Landlord, except to
the extent that any tax referred to in clause (A) or (B) is levied in
substitution for or in lieu of the whole or any part of, or in lieu of any
increase in the amount of, any tax which would otherwise be covered by any of
clauses (i) - (iv).
5. Use Covenants and Obligations.
(a) The Premises shall at all times be used only for customer, employee
and valet parking and as a turnaround area in connection with the operation of
the hotel and casino property known as Resorts Atlantic City (the "Casino"),
presently owned by Resorts International Hotel, Inc. ("RIH") located at Block 60
on the tax map of Atlantic City, County of Atlantic, State of New Jersey, as the
same may be modified or expanded, and for no other purpose, except that (i) the
Building Site shall be used solely for administrative and general office space
in connection with the Casino, and (ii) the Billboard Sites shall be used solely
for advertisements relating to the Casino.
(b) Tenant expressly covenants and agrees that during the term of this
Lease:
(1) Tenant shall not use or permit the use of the Premises or any
part thereof for (i) the sale, or routine furnishing of any gasoline,
petroleum products or other fuel oil or lubricating material, grease
or other lubricant material, or tires, batteries, automobile
accessories or related products or equipment, (ii) the construction,
maintenance or operation of any grease or repair pit, or (iii)
operation, maintenance or conduct of any automobile repair or
servicing business.
(2) Tenant shall not install or use or permit to be installed or
used in the Premises, except for the exclusive use of employees of
Tenant, any food, beverage, cigarette, stamp or other vending or
dispensing machine or any mechanical or electronic game of chance or
amusement device.
(3) Tenant shall not cause or permit the blockage of any publicly
owned sidewalk in or about the Premises or the double parking on any
publicly owned street of any vehicle under its control. Tenant shall
use commercially reasonable efforts to minimize traffic backups,
unnecessary noise and congestion from occurring in or about the
Premises.
(4) Tenant shall not discharge or allow to be discharged any
gasoline, oil, grease or other like substances onto or under the
ground or into the sewer system in or around the Premises, other than
incidental discharges not inconsistent with the use of the Premises as
a parking lot, and Tenant shall make suitable arrangements to dispose
of all waste and rubbish, including petroleum products, in compliance
with all codes, rules, regulations, directives, guidelines, laws and
requirements of any governmental entity asserting jurisdiction, and
Tenant shall in accordance with Applicable Laws maintain all sidewalks,
ramps, entryways and access areas to or adjacent to the Premises and
free from grease, oil or other discoloration and drippings other than
such grease, oil or discoloration ordinarily occurring through
reasonable use and wear and tear.
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(5) Tenant shall store all trash or garbage in closed receptacles
and will arrange at its expense for removal of such trash and garbage.
(6) In all respects the Premises (excluding the Building Site and
the Billboard Sites) shall be operated in a manner consistent with a
quality car parking lot.
(7) Tenant shall, in a timely manner, collect and pay to the
appropriate governmental authorities all taxes which may be or become
due and payable on account of, or resulting from the operation of, a
parking lot on the Premises during the Term. If any governmental
taxing authority shall have requested proof in writing from Landlord
that the aforesaid taxes have been paid, or if Landlord requires such
proof in connection with any audit, or if Landlord, in Landlord's good
faith judgment, is at risk of incurring any liability regarding such
taxes, then Landlord may demand from Tenant proof that the proper
amount of such taxes was paid in a timely fashion, and Tenant, within
fifteen (15) days following demand by Landlord, shall provide Landlord
with such proof.
(8) With respect to the Building Site and the Billboard Sites,
Tenant agrees and covenants to keep all improvements thereon in as good
order, condition and repair as when the same were entered upon, damage
by fire or other casualty or condemnation excepted. Tenant shall, at
its sole cost and expense, perform all necessary maintenance and repair
(including, where applicable or necessary, replacements) to the
improvements located on the Building Site and the Billboard Sites,
excluding structural repairs.
(9) Tenant shall be responsible for ensuring that all signage at
the Billboard Sites shall at all times be in compliance with all
applicable governmental rules, regulations and zoning ordinances and
shall obtain and keep in effect all permits required from municipal
and other authorities in connection with such signage. Tenant shall be
fully responsible for, and shall promptly discharge and remove of
record, any and all violations issued in connection with the signage,
and shall promptly pay all impositions, fines and penalties associated
with same. With respect to any future signage or alterations to
existing signage, Tenant shall make all required filings with all
municipal and other authorities having jurisdiction and shall obtain
all legally required permits and licenses for the construction, display
and operation of such signage.
(c) Tenant acknowledges and agrees that if Tenant shall breach in any
material respect any of the provisions of this Section 5, Landlord shall have no
adequate remedy at law, and consequently, among other remedies for such breach
permitted by law or the provisions of this Lease, Landlord shall be entitled to
enjoin Tenant from any violation of said provisions.
(d) Tenant, at Tenant's sole cost and expense, shall (a) procure and
thereafter maintain all governmental permits and licenses required for the
proper and lawful conduct of Tenant's business in the Premises and the use
thereof, (b) submit copies of all such permits and licenses to Landlord for its
inspection upon Landlord's request, and (c) submit to the appropriate
governmental agency copies of new or renewal permits and licenses expiring
during the term of this Lease within the time periods required by law.
6. Alterations, Maintenance and Repair.
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(a) Tenant shall not construct any improvements, buildings or other
structures on the Premises and shall not make any changes or alterations other
than (1) landscaping of unpaved areas, (2) as needed and upon submission of
plans and Landlord's written approval thereof, such approval not to be
unreasonably withheld, delayed or conditioned: (i) installation of parking
booths, kiosks or sheds; (ii) with respect to paved areas, re-paving,
re-blacktopping, re-striping and re-grading as needed; and (iii) reasonable
alterations to the Building Site and, subject to Section 5(b)(9), alterations to
signage at the Billboard Sites.
(b) Tenant shall take good care of the Premises and shall maintain all
parking areas in good condition and make all repairs thereon necessary to keep
the same in good condition. Tenant shall keep the Premises clean and in good
order, to the reasonable satisfaction of Landlord. Tenant shall not be
responsible for the repair of any deficiencies existing at the Premises upon the
commencement of the Term.
(c) If, because of any acts or omission of Tenant, anyone claiming
through or under Tenant shall file any mechanic's or other lien or order for the
payment of money against the Premises or against Landlord (whether or not such
lien or order is valid or enforceable as such), Tenant shall, at Tenant's own
cost and expense, cause the same to be canceled and discharged of record or
bonded within thirty (30) days after receiving written notice of filing thereof,
and shall also indemnify and save harmless Landlord from and against any and all
costs, expenses, claims, losses or damages, including reasonable counsel fees,
resulting therefrom or by reason thereof.
(d) Tenant shall not display or erect any exterior decorations,
lettering, signs, advertisements, notices, posters, displays, projections,
curtains, blinds, shades, screens or awnings on or about the Premises
(collectively, "Signs") without obtaining any permits or government approvals
required by law; and Landlord shall cooperate with Tenant, at Tenant's sole cost
and expense, to the extent reasonably necessary for Tenant to obtain any such
permits or governmental approvals. All such Signs shall be maintained by Tenant
at its sole cost and expense in good order and condition, and in accordance with
all of the terms and provisions of this Lease. All Signs shall be removed by
Tenant at the end of the Term, and Tenant shall repair, at Tenant's sole cost
and expense, any damage to the Premises caused by the installation, maintenance
or removal of such Signs. Tenant shall indemnify and hold Landlord harmless of
and from any and all claims, costs, expenses or damages suffered by reason of
the installation, maintenance or removal of such Signs, except to the extent
caused by the negligence or willful misconduct of Landlord, its employees and
agents.
7. Compliance with Laws. Tenant, at Tenant's expense, shall comply in all
material respects with all laws and ordinances, and all material rules, orders
and regulations of all governmental authorities and of all insurance bodies, at
any time duly issued or in force, applicable to the Premises or any part thereof
or to Tenant's use thereof ("Applicable Requirements"), except that Tenant shall
not be required to cure, correct or repair any violation or condition existing
prior to delivery of possession of the Premises to Tenant. Tenant shall pay all
costs, expenses, fines, penalties or damages, which may be imposed upon Landlord
by reason of Tenant's failure to comply with the provisions of this Section.
Each party shall give prompt notice to the other of any notice it receives of
the violation of any law or requirement of any public authority with respect to
the Premises or the use or occupation thereof. The terms of the New Jersey
Casino Control Act and regulations promulgated thereunder (together, the
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"Act") are incorporated herein by reference and Tenant agrees to comply with the
provisions thereof. This lease may be terminated by Landlord or Tenant upon
written notice to the other, without liability to either party (excepting any
liability with respect to obligations accruing prior to the termination or those
obligations expressly stated to survive a termination or expiration of this
Lease), in the event Tenant or Landlord is directed to do so by the New Jersey
Casino Control Commission. Any such termination shall be effective as of the
date the notice is given or such later date as may be specified in such notice.
8. No Warranty by Landlord. Tenant has inspected the Premises and is fully
familiar with the condition and state of repair thereof and, subject to Section
21(d), accepts the Premises "as is" and in their present condition. Tenant has
made such examination of title to the Premises and of the operation, income and
expenses of the Premises and all other matters affecting or relating to the
Premises as Tenant deemed necessary. EXCEPT AS EXPRESSLY SET FORTH IN THIS
LEASE, LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PREMISES OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION, OR
DURABILITY THEREOF, OR AS TO THE TITLE THERETO OR OWNERSHIP THEREOF OR
OTHERWISE, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY
TENANT. IN CASE OF ANY DEFECT OR DEFICIENCY IN THE PREMISES, WHETHER PATENT OR
LATENT, LANDLORD SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO.
THE PROVISIONS OF THIS SECTION 8 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION BY LANDLORD OF, AND LANDLORD HEREBY DISCLAIMS,
ALL WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF HABITABILITY WITH
RESPECT TO THE PREMISES, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE
OR OTHER APPLICABLE LAW.
9. Net Lease; Non-Terminability; Tenant's Liability.
(a) The parties intend that by the execution of this Lease, Tenant
shall assume with respect to the Premises every obligation relating thereto
which the ownership thereof entails and which, but for this Lease, would be
borne by Landlord except as otherwise expressly set forth in Sections 4, 6, 7
and 8. All payments due from Tenant hereunder, however denominated, constitute
payments of rent.
(b) Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises to Landlord in good order, condition and repair,
except: (i) for ordinary wear and tear (ii) in the case of a Taking, the portion
taken and (iii) if the Tenant exercises its option to purchase the Premises
pursuant to the Option Agreement.
(c) Tenant shall remove from the Premises on or prior to such
expiration or earlier termination all of its personal property situated thereon
which is not part of the Premises and not owned by Landlord and shall repair any
damage caused by such removal. Property not so removed shall become the property
of Landlord, and Landlord may thereafter, after 3 days written notice to Tenant,
cause such property to be removed from the Premises and disposed of,
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but the reasonable cost of any such removal and disposition as well as the
reasonable cost of repairing any damage caused by such removal shall be borne by
Tenant.
(d) If Tenant remains in possession of the Premises after the
expiration or earlier termination of this Lease, without Landlord's consent or a
new lease, then Landlord, without waiving any other rights or remedies
hereunder, may elect to treat Tenant as a tenant from month to month, subject to
all the terms of this Lease, except that the monthly rent payable to Landlord
shall be $ 300,000.
10. Landlord Right of Entry. Landlord and its authorized representatives may
enter the Premises at all reasonable times upon reasonable notice, accompanied,
at Tenant's option, by a representative of Tenant (except in the case of an
emergency or if necessary to comply with any Applicable Laws), provided Landlord
shall use commercially reasonable efforts to minimize any interference with
Tenant's operation of the Casino by such entry, for the purpose of (a)
inspecting the Premises and to make such repairs, replacements and improvements
(i) as Landlord may deem necessary and reasonably desirable, with Tenant's prior
written consent, not to be unreasonably withheld, conditioned or delayed or (ii)
which Landlord may elect to perform following Tenant's failure to make repairs
or perform work which Tenant is obligated to perform under this Lease, (b)
complying with Applicable Requirements and, (c) showing the Premises to
prospective purchasers, or tenants of the Premises during the last six (6)
months of the term of this Lease provided Tenant has not exercised the Option.
No such entry shall constitute an eviction of Tenant. Landlord shall have no
duty to make any such entry or inspection.
11. Indemnification.
(a) Tenant, irrespective of whether Tenant shall have been negligent in
connection therewith, hereby indemnifies, protects, defends and saves harmless,
Landlord and Landlord's affiliates including Sun International Hotels Limited
and each of its subsidiaries and each of their respective partners, principals,
members, officers, directors, contractors, agents and employees (collectively,
the "Landlord Indemnified Parties") from and against any and all liability
(statutory or otherwise), claims, suits, demands, damages, judgments, costs,
fines, penalties, interest and expenses (including reasonable counsel and other
professional fees and disbursements incurred in any action or proceeding and
court costs), to which Landlord Indemnified Parties may be subject or suffer
arising from, or in connection with: (i) any liability or claim for any injury
to, or death of, any person or persons, or damage to property (including any
loss of use thereof), occurring in or about the Premises during the Term, or
(ii) Tenant's use and occupancy of the Premises, or from any work, installation
or thing whatsoever done or omitted (other than by Landlord or its agents or
employees) in or about the Premises during the Term, or (iii) any default by
Tenant in the performance of Tenant's obligations under this Lease, including,
without limitation, Tenant's obligations under Section 21, or (iv) any act or
omission of Tenant, its subtenants, assignees and occupants and its and their
respective agents, representatives, contractors, servants, employees, licensees,
guests and invitees, or (v) any cost, liability or responsibility for the
payment of any sales tax with respect to any installations, furniture,
furnishings, fixtures or other improvements located, installed or constructed in
the Premises during the Term, or the filing of any tax return in connection
therewith (although Landlord agrees to execute any such return if required by
law) regardless of
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whether such tax is imposed upon Landlord or Tenant. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof.
(b) In the case of any claim asserted by a third party against a party
entitled to indemnification under this Lease (the "Indemnified Party"), notice
shall be given by the Indemnified Party to the party required to provide
indemnification (the "Indemnifying Party") as soon as practicable after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and the Indemnified Party shall permit the Indemnifying Party (at the
expense of such Indemnifying Party) to assume the defense of any third party
claim or any litigation with a third party resulting therefrom; provided,
however, that (a) the counsel for the Indemnifying Party who shall conduct the
defense of such claim or litigation shall be subject to the approval of the
Indemnified Party (which approval shall not be unreasonably withheld,
conditioned or delayed), (b) the Indemnified Party may participate in such
defense at such Indemnified Party's expense (which shall not be subject to
reimbursement hereunder except as provided below), and (c) the omission by any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its indemnification obligation under this Lease except and
only to the extent that such Indemnifying Party is actually and materially
damaged as a result of such failure to give notice. Except with the prior
consent of the Indemnified Party, no Indemnifying Party, in the defense of any
such claim or litigation, shall consent to entry of any judgment or enter into
any settlement that provides for injunctive or other non-monetary relief
affecting the Indemnified Party or that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to such Indemnified Party
of a general release from any and all liability with respect to such claim or
litigation. If the Indemnified Party shall in good faith determine that the
conduct of the defense of any claim subject to indemnification hereunder or any
proposed settlement of any such claim by the Indemnifying Party might be
expected to adversely affect the ability of the Indemnified Party to conduct its
business, or that the Indemnified Party may have available to it one or more
defenses or counterclaims that are inconsistent with one or more of those that
may be available to the Indemnifying Party in respect of such claim or any
litigation relating thereto, the Indemnified Party shall have the right to
utilize counsel of its own choosing at the sole and reasonable cost of the
Indemnifying Party and to assume its own defense; provided, however, that if the
Indemnified Party does so assume its own defense, the Indemnified Party shall
not settle such claim or litigation or consent to entry of any judgment without
the consent of the Indemnifying Party, such consent not to be unreasonably
withheld or delayed.
12. Insurance. Tenant shall at all times maintain with respect to the Premises
insurance of the following character:
(a) (i) Garage Liability Insurance, written on an occurrence basis,
with a broad form comprehensive coverage (including, without limitation,
premises and operations, contractual, products and automobile liability
insurance coverage and all insurance coverages which are covered under a
standard comprehensive public liability and property damage insurance policy
with a broad form endorsement containing broad form contractual liability
insurance coverage) with a minimum limit of liability being a combined single
limit with respect to each occurrence of not less than $15,000,000 ($5,000,000
primary coverage plus $10,000,000 umbrella being
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acceptable) for injury or death and damage to property, occurring in, upon,
adjacent to, or connected with the Premises or any part thereof (including any
adjoining sidewalk, curb or vault); (ii) Garage Keeper's Legal Liability
Insurance written on an occurrence basis in amounts of not less than $5,000,000,
which insurance shall cover legal liability for loss by fire, explosion, riot,
vandalism, theft, malicious mischief and collision of automobiles in the care of
Tenant for storage or safekeeping; and (iii) Worker's Compensation Insurance, as
required by law; (iv) General Public Liability and Property Damage Insurance,
all risk, "occurrence" type, including contractual indemnification coverage, and
fully protecting Landlord (and its partners, shareholders, officers, directors,
affiliates and agents) against any and all liability, claims, cost and expense
arising out of negligence, accident or disaster, involving personal injury,
wrongful death and property damage in the single limit of no less than
$15,000,000 ($5,000,000 primary coverage plus $10,000,000 umbrella being
acceptable) per occurrence, and (v) such other insurance in such amounts as may
be, from time to time, reasonably required by Landlord against the same or other
insurable hazards which at the time are commonly insured against in the case of
parking lots, parking garages, buildings or billboards in Atlantic City.
(b) All insurance required under Section 12(a) shall be written by
insurers of recognized financial standing which are authorized to do an
insurance business in the State of New Jersey and have, at the time such
insurance is issued or renewed, an Xxxxxx X. Best Company, Inc. general
policyholders' rating of A or better and a financial rating of BBB or better (or
equivalent ratings by a generally recognized successor rating agency).
(c) Tenant shall obtain endorsements to the insurance policies carried
pursuant to Section 12(a) providing that (i) Landlord and Sun International
Hotels Limited and, if requested by Landlord, any subsidiary of either of them
are included as additional insureds, but none of them is liable for the payment
of premiums, (ii) the insurer waives all rights of subrogation against Landlord
and any such other parties, (iii) such insurance is primary, without right of
contribution from any other insurance carried by or on behalf of Landlord with
respect to its interest in the Premises, (iv) loss payable under such policies
shall not be reduced by reason of any right of set-off or counterclaim that the
insurer may have against Tenant, (v) as to Landlord, such policies shall not be
invalidated by any act or omission of Tenant, and (vi) no lapse, cancellation or
material change with respect to such policies shall be effective as to Landlord
until at least 30 days after receipt by Landlord of written notice thereof.
(d) Any insurance required under this Section 12 may be evidenced by
blanket insurance policies covering the Premises and other property or assets of
Tenant or any sublessee of Tenant, provided that the protection afforded thereby
shall be no less than that which would have been afforded under a separate
policy relating only to the Premises and each policy of such insurance shall in
all other respects comply with this Section 12.
(e) Upon the execution and delivery of this Lease, Tenant shall deliver
to Landlord either certificates of insurers evidencing all insurance which is
then required to be maintained by Tenant hereunder or, upon request of Landlord,
original or duplicate policies of such insurance, and in either case evidence
satisfactory to Landlord of the payment of the related premiums. Within 30 days
prior to the expiration of any such insurance, Tenant shall deliver to Landlord
either certificates of insurers evidencing the renewal of such insurance or,
upon request of
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Landlord, original or duplicate policies of such insurance, and in either case
evidence satisfactory to Landlord of the payment of the related premiums.
(f) Should Tenant fail to maintain any insurance provided for in this
Section 12, or to pay the premium therefor, or to deliver to Landlord any of
such policies or certificates, Landlord may, upon five days' prior written
notice to Tenant of its intention to do so, procure such insurance and any
reasonable sums expended by it to procure such insurance shall be repaid by
Tenant on demand of Landlord.
(g) Except to the extent caused by the willful misconduct or negligence
of Landlord, its agents, servants, invitees or employees, Landlord shall not be
liable to Tenant for any loss, damage or expense of any kind resulting from, and
no claims shall be made against Landlord by Tenant for, any injury or damage to
person or property occurring in the Premises.
(h) Landlord may, from time to time, require increases in the amounts
or changes in the types of coverage established in this Section 12 to reflect
the amounts and/or types of coverage which are then required by Applicable
Requirements, or by Landlords of or maintained typically by operators of,
parking lots in Atlantic City, New Jersey.
13. Condemnation.
(a) In the event that the Premises or substantially all of the Premises
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title.
(b) In the event that less than substantially all of the Premises shall
be so condemned or taken, then Tenant may at Tenant's option, terminate this
Lease and the term and estate hereby granted as of the date of such vesting of
title by notifying Landlord in writing of such termination within sixty (60)
days following the date on which Tenant shall have received notice of vesting of
title. If Tenant does not so elect to terminate this Lease, as aforesaid, this
Lease shall be and remain unaffected by such condemnation or taking.
(c) In the event of termination in any of the cases hereinbefore
provided, this Lease and the term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the
termination date of this Lease.
(d) Subject to the provisions of the Option Agreement, Landlord shall
be entitled to receive the entire award in the condemnation proceeding,
including any award made for the value of the estate vested by this Lease in
Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title
and interest of Tenant now or hereafter arising in or to any such award or any
part thereof. Subject to the provisions of the Option Agreement Tenant shall not
be entitled to receive any part of such award from Landlord or the condemning
authority, except that Tenant shall have the right to assert a claim against the
condemning authority for the value of moveable fixtures and equipment installed
and paid for by Tenant and for relocation expenses, provided that the payment of
any award to Tenant does not diminish the amount which would otherwise be paid
to Landlord by that condemning authority.
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(e) In the event of a condemnation or taking for governmental occupancy
for a limited period, Tenant shall be entitled to a pro rata credit against
Tenant's Carrying Cost Payments during the period of such temporary taking,
calculated by Landlord on a square footage basis based upon the ratio of the
space taken to the entire space comprising the Premises.
(f) A termination of this Lease pursuant to the provisions of this
Article 13 shall also operate as a termination of the Option Agreement.
14. Assignment by Tenant.
(a) "Affiliate": of a specified Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such specified Person. "Control" (including the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management policies of a Person, whether through the ownership of voting
securities, by contract or credit arrangement, as trustee or executor, or
otherwise.
(b) "Person" or "person": means any natural person, firm, partnership,
association, corporation, company, limited liability company, trust, business
trust or other entity.
(c) Neither this Lease nor Tenant's rights or obligations hereunder
shall be assignable, subleasable or otherwise transferable, in whole or in part
(whether by merger, sale of stock, sale of all or substantially all of the
assets or business, operation of law or otherwise), without the prior written
consent of Landlord, except that Tenant may assign, in its sole discretion, any
of or all of its rights, interests and obligations under this Lease to (i) the
banks or other institutional lenders providing the debt financing incurred by
Tenant in connection with the closing on the date hereof of the transactions
contemplated by the Purchase Agreement among Landlord, GGRI, Inc. and Tenant
dated as of October 30, 2000 (together with any amendment or refinancing
thereof, the "Acquisition Financing"), (ii) to either any controlled Affiliate
of Colony Investors IV, L.P. ("Colony") (so long as such Affiliate remains at
all times thereafter an Affiliate of Colony) or any controlled Affiliate of
Xxxxxx Xxxxxxx (so long as such Affiliate remains at all times thereafter an
Affiliate of Xxxxxx Xxxxxxx), or (iii) to any Person which acquires, directly or
through the acquisition of a controlling interest in RIH, the real property
owned or leased by RIH and which substantially comprise the Casino, and owns and
operates the Casino and the Casino business therein (a "Successor Owner");
provided, that, in each such case, such party assumes Tenant's obligations
hereunder and under the Option Agreement and Tenant remains liable hereunder
(except in the case of a Successor Owner). Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their respective successors and assigns.
(d) No assignment pursuant to this Section 14 shall be effective for
any purpose unless (i) Landlord shall have received, at least 30 days prior to
the consummation of such transaction, (A) an executed counterpart of the
instrument effecting such assignment, in form and substance satisfactory to
Landlord, containing inter alia the name, address and telephone number of the
assignee, (B) an executed instrument of assumption of Tenant's obligations under
this Lease by such assignee, in form and substance satisfactory to Landlord, (C)
an affidavit of the assignee, or the principal officer or general partner
thereof, setting forth the names and
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addresses of all persons having interests in the assignee and of all directors
and officers of the assignee, and (D) such other documents as Landlord may
reasonably request, and (ii) on the date such assignment is consummated, no
Event of Default, or event which with notice or the passage of time would
constitute an Event of Default, shall have occurred and be continuing.
(e) No assignment of Tenant's interest under this Lease shall be valid
unless made in compliance with this Section 14.
(f) If this Lease is assigned to any person pursuant to the Title 11 of
the United States Code (as the same may be amended from time to time, the
"Bankruptcy Code"), all consideration paid or delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be the exclusive
property of Landlord and shall not constitute property of Tenant or its estate
within the meaning of the Bankruptcy Code, and such person shall be deemed
without further act to have assumed all of Tenant's obligations hereunder
arising after such assignment and, upon request of Landlord, shall execute and
deliver to Landlord an agreement confirming such assumption.
(g) For purposes of this Section 14, the term "assignment of Tenant's
interest under this Lease" shall include the direct or indirect assignment (in
either a single transaction or a series of transactions) of the controlling
ownership interest of any entity which is Tenant under this Lease; and the term
"assignment" shall include a sale or any other transfer (by operation of law, by
contract or otherwise).
(h) Tenant shall pay, on demand, all costs, including attorneys' fees,
incurred by Landlord in connection with action taken by it pursuant to this
Section 14 and the review of documents submitted to it.
15. No Mortgages.
Tenant shall not mortgage, pledge or grant a security interest in its
interest in the Premises except in connection with the Acquisition Financing.
16. Quiet Enjoyment.
So long as Tenant shall perform and observe all covenants and
conditions to be performed or observed by Tenant under this Lease, and subject
to the terms and conditions of this Lease, the condition of the Premises and
matters of title existing on the date of this Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the term demised by
this Lease free of interference from Landlord or those claiming through or under
Landlord.
17. Events of Default.
(a) If anyone or more of the following events ("Event of Default")
shall occur:
(i) Tenant shall make an assignment of its property for the
benefit of creditors or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition under any
bankruptcy or insolvency law shall be filed against Tenant
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and such involuntary petition is not dismissed within ninety (90) days
after the filing thereof; or
(ii) a petition is filed by or against Tenant under the
reorganization provisions of the United States Bankruptcy Code or under
the provisions of any law of like import, unless such petition under
said reorganization provisions be one filed against Tenant which is
dismissed within ninety (90) days after its filing; or
(iii) Tenant shall file a petition under the arrangement provisions
of the United States Bankruptcy Code or under the provisions of any law
of like import; or
(iv) A permanent receiver, trustee or liquidator shall be appointed
for Tenant or of or for the property of Tenant, and such receiver,
trustee or liquidator shall not have been discharged within sixty (60)
days from the date of his appointment; or
(v) Tenant shall default in making any payment of rent due
hereunder and such default shall continue for more than 10 days beyond
the date due;
(vi) Tenant shall default in the due keeping, observing or
performance of any other covenant, agreement, term, provision or
condition of this Lease on the part of Tenant to be kept, observed or
performed, and if such default shall continue and shall not be remedied
by Tenant within thirty (30) days after Landlord shall have given to
Tenant a written notice specifying the same, or, in the case of such a
default which for causes beyond Tenant's control cannot with due
diligence be cured within said period of thirty (30) days, if Tenant:
(i) shall not, promptly upon giving of such notice, advise Landlord in
writing of Tenant's intention to institute within thirty (30) days all
steps necessary to remedy such default; or (ii) shall not institute
within thirty (30) days and thereafter diligently prosecute to
completion all steps necessary to remedy the same; or (iii) shall not
remedy the same within a reasonable time after the date of the giving
of said notice by Landlord;
(vii) any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or
pass to any person, firm, association or corporation other than Tenant
except as expressly permitted under Article 14 hereof, or whenever
Tenant shall desert or abandon the Premises or the same shall become
vacant; or
(viii) any default by Tenant, as Purchaser, after applicable notice
and cure periods, if any, shall occur under the Option Agreement or any
material default by Tenant, as Purchaser, shall occur under the
Purchase Agreement dated as of October 30, 2000 among Landlord, Tenant
and GGRI, Inc., or an Event of Default shall have occurred under
Section 6.1(a), 6.1(f) or 6.1(g) of that certain Promissory Note
(inclusive of all accrued interest notes issued pursuant thereto, the
"Note") in the original principal amount of $17,500,000 made by Colony
RIH Holdings, Inc. in favor of Landlord, but only if at the time of
such Event of Default the Note (or the majority interest therein) is
held by Landlord, an Affiliate (as defined in the Note) of Landlord, or
a lender of
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Landlord or an Affiliate of such lender which acquired the Note
pursuant to a pledge of the Note and is an Eligible Person as defined
in the Note;
then, in any of said cases, Landlord may give to Tenant a notice of intention to
end the term of this Lease at the expiration of five (5) days from the date of
the giving of such notice, and, in the event such notice is given, this Lease
and the term and estate hereby granted (whether or not the term shall
theretofore have commenced) shall expire and terminate (including any right to
extend the term or continue on a month to month basis) upon the expiration of
said five (5) days with the same effect as if that day were the date
hereinbefore set for the expiration of the term of this Lease and Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails so to do,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the premises
and expel or remove Tenant and any other person who may be occupying such
premises or any part thereof, by legal process, without being liable for
prosecution or any claim of damages therefor.
(b) Upon the occurrence of any Event of Default described in Section
17(a) hereof, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever:
(i) If Landlord terminates this Lease pursuant to Section 17(a), enter
upon and take possession of the Premises and expel or remove Tenant and
any other person who may be occupying such Premises or any part thereof
by legal process without being liable for prosecution or any claim for
damages therefore, and relet the Premises and receive the rent
therefor.
(ii) Enter upon the premises, by legal process, without being liable
for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant
agrees to reimburse Landlord as provided herein on demand for any
reasonable expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this lease.
(c) Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant.
(d) In case of any event of default or breach by Tenant, Tenant shall
also be liable for and shall pay to Landlord, at the address specified for
notice to Landlord herein, in addition to any sum provided to be paid above; the
costs of removing and storing Tenant's property; the costs of repairing,
altering, remodeling or otherwise putting the premises into the condition that
the Premises were delivered to Tenant; and all reasonable expenses incurred by
Landlord in enforcing Landlord's rights and/or remedies including reasonable
attorney's fees.
(e) If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payments and/or remedy such other default for the account of Tenant (and,
pursuant to legal process, enter the premises for such purpose), and
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thereupon Tenant shall be obligated to, and hereby agrees, to pay Landlord, upon
demand, all reasonable and customary costs, expenses and disbursements
(including reasonable attorney's fees) incurred by Landlord in taking such
remedial action.
(f) No waiver by Landlord or Tenant of any breach by the other party of
any of the other party's obligations, agreements or covenants herein shall be a
waiver of any subsequent breach or of any obligation, agreement or covenant, nor
shall any forbearance by landlord or Tenant to seek a remedy for any breach by
the other party be a waiver with respect to such or any subsequent breach.
(g) No right or remedy herein conferred upon or reserved to Landlord or
Tenant is intended to be exclusive of any other right or remedy provided herein
or by law, but each shall be cumulative and in addition to every other right or
remedy given herein or now or hereafter existing at law or in equity or by
statute.
18. Limitation on Landlord's Liability.
Tenant shall look solely to Landlord's interest in the Premises,
including insurance loss proceeds and Taking awards, for the recovery of any
judgment against Landlord, and if Landlord is a partnership, its partners,
whether general or limited, or if Landlord is a corporation, its directors,
officers and shareholders, shall not be personally liable for any such judgment.
The foregoing shall not limit any right of Tenant to obtain injunctive relief
against Landlord or to maintain any suit for specific performance or other
equitable relief.
19. Notices.
All notices, requests, demands, approvals, consents, waivers and other
communications required or permitted to be given under this Agreement (each, a
"Notice") shall be in writing and shall be (a) delivered personally, (b) mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, (c) sent by next-day or overnight mail or delivery, or (d) sent by
facsimile transmission, provided that the original copy thereof also is sent by
prepaid, first-class certified or registered mail or by next-day or overnight
mail or personal delivery.
if to Tenant, to
Colony Capital, L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
with copies to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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if to Landlord, to
c/o Sun International Hotels Limited
Coral Towers
Paradise Island, The Bahamas
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Gerkis, Esq.
or, in each case, at such other address as may be specified in a Notice to the
other party hereto. Any Notice shall be deemed effective and given upon receipt
(or intentional refusal of receipt of the addresses of such Notice).
20. Relationship of Parties.
Landlord does not, by entering into this Lease, become a partner or
joint venturer of Tenant or a member of a joint enterprise with Tenant.
21. Environmental Matters.
(a) Tenant represents the specific activities intended to be carried on
in the Premises are in accordance with the Section 5 of this Lease and Tenant
covenants and agrees that it will not do or suffer or allow anything which will
cause the Premises, or use of the Premises during the Term to be subject to
compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et
seq. ("ISRA").
(b) Tenant shall not engage in operations at the Premises which involve
the generation, manufacture, refining, transportation, treatment, storage,
handling or disposal of "hazardous substances" or "hazardous waste" as such
terms are defined under ISRA except in connection with the uses permitted under
this lease and in compliance with applicable laws. Subject to Section 5(b)(4),
Tenant further covenants that it will not cause or permit to exist any Discharge
by Tenant (as such term is defined under ISRA) at the Premises nor cause or
permit to exist as a result of an intentional or unintentional action or
omission on its part, the releasing, spilling, leaking, pumping, pouring,
emitting, emptying or dumping from, on, or about the Premises of any hazardous
substance (as such term is defined under N.J.S.A. 58:10-23.11(b)(k) and N.J.A.C.
7:1-3.3).
(c) If Tenant's operations or the operations of any subtenant, invitee,
representative or agent on the Premises now or during the Term constitute an
"Industrial Establishment" and subject the Premises to the requirements of ISRA,
then in connection with (i) Tenant's closing operations or transferring
ownership or operations of Tenant at the Premises (as defined under
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ISRA), (ii) the expiration or sooner termination of this Lease or any assignment
of this Lease, or (iii) any subletting of any portion of the Premises, Tenant
shall, at its expense, comply with all requirements of ISRA, if any.
(d) Landlord shall indemnify, protect, defend and save harmless, Tenant
and Tenant's affiliates and each of its subsidiaries and each of their
respective partners, principals, members officers, directors, contractors,
agents and employees (collectively, the "Tenant Indemnified Parties") from and
against any and all liability (statutory or otherwise), claims, suits, demands,
damages, judgments, costs, fines, penalties, interest and expense (including
reasonable counsel and other professional fees and disbursements incurred in any
action or proceeding and court costs), to which Tenant Indemnified Parties may
be subject or suffer arising from, or in connection with any violation of
Environmental Law existing on or before the Commencement Date on, under or at
the Premises, provided, however, that this indemnification shall be extinguished
and of no further force and effect from and after a Closing under the Option.
(e) Tenant shall indemnify, protect, defend and save harmless, Landlord
and Landlord's affiliates and each of its subsidiaries and each of their
respective partners, principals, members officers, directors, contractors,
agents and employees (collectively, the "Landlord Indemnified Parties") from and
against any and all liability (statutory or otherwise), claims, suits, demands,
damages, judgments, costs, fines, penalties, interest and expense (including
reasonable counsel and other professional fees and disbursements incurred in any
action or proceeding and court costs), to which Landlord Indemnified Parties may
be subject or suffer arising from, or in connection with any violation of
Environmental Law on, under or at the Premises occurring during the Term
(excluding any covered by Landlord's indemnification under Section 21(d)). This
indemnification shall survive the termination or expiration of this Lease.
(f) In the event of Tenant's failure to comply with this Section 21,
Landlord may, after prior written notice to Tenant and an opportunity to cure,
at its option, perform any and all of Tenant's obligations as aforesaid and all
costs and expenses incurred by Landlord in the exercise of this right shall be
deemed to be additional rent payable on demand with interest thereon at a rate
per annum that is the 4% above the prime rate then listed in The Wall Street
Journal (the "Prime Rate").
(g) This Article shall survive the expiration or sooner termination of
the Lease.
22. Fair Market Rental Determination.
(a) In the event that Tenant continues its tenancy as a month-to-month
tenancy pursuant to Section 3(c) of this Lease, Landlord and Tenant shall
endeavor to agree within 30 days of the date of Tenant's Month to Month
Extension Notice or a Rent Adjustment Notice from Landlord, as the case may be,
on the Fair Market Rental Rate (as defined below) for the Premises. If Landlord
and Tenant are unable to agree within such 30-day period upon the Fair Market
Rental Rate pursuant to the foregoing sentence, then either party may (such
party, the "Initiating Party") upon notice to the other party (such party, the
"Other Party"), appoint an appraiser to determine the Fair Market Rental Rate.
Within 15 days of the Other Party's receipt
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of such notice of appointment, the Other Party shall be entitled to appoint its
own appraiser and notify the Initiating Party thereof. If the Other Party shall
fail to appoint an appraiser as set forth in the foregoing sentence, then the
appraiser appointed by the Initiating Party shall make the determination of the
Fair Market Rental Rate. If each party shall appoint an appraiser and if such
two appraisers cannot within 30 days after their appointment agree upon the Fair
Market Rental Rate, the parties shall endeavor to select a third appraiser
("Third Appraiser") within 30 days to decide the issue and, in the event that
Landlord's appraiser and Tenant's appraiser shall be unable to jointly agree on
the designation of the Third Appraiser within such 30 days, then the parties
agree to allow the American Arbitration Association (or any successor
organization, "AAA") to designate the Third Appraiser in accordance with the
rules, regulations and/or procedures then obtaining of the AAA. The Third
Appraiser shall conduct such hearings and investigations as he may deem
appropriate and shall, within thirty (30) days after the date of designation of
the Third Appraiser, choose either Landlord's or Tenant's determination, and
such choice by the Third Appraiser shall be conclusive and binding upon Landlord
and Tenant.
(b) Appraisers appointed by the parties shall have at least seven
years' experience in the fixing and valuation of rentals in the County of
Atlantic County, State of New Jersey or be members of the Appraisal Institute.
(c) The "Fair Market Rental Rate" shall be the fair market monthly
rental rate for the Premises as of the date of Landlord's Rent Adjustment
Notice; provided, however, that the appraisers shall determine such Fair Market
Rental Rate as if the option to extend the term of the Lease pursuant to Section
3(c) did not exist, and the appraisers shall assume or take into consideration
that (a) the Premises are fit for immediate occupancy and use "as-is" and
require no additional work by Landlord, and (b) Landlord is bearing the costs of
Impositions imposed against the Premises.
23. Separability.
Each covenant in this Lease shall be construed to be a separate and
independent covenant, and the breach of any such covenant by one party shall not
discharge or relieve the other from the obligation to perform its covenants. If
any provision of this Lease or any application thereof is invalid or
unenforceable, the remainder of this Lease and any other application of such
provision shall not be affected thereby. To the extent permitted by Applicable
Law, Tenant hereby waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
24. Brokers.
Each party represents to the other that it has dealt with no broker,
agent or finder in connection with the transactions contemplated by this Lease.
Each party shall pay or indemnify, hold harmless and defend the other from and
against all loss, liability, damage, litigation, sums paid in settlement of any
of the foregoing and cost (including attorneys' fees) arising from any claim by
any person that he acted on behalf of the indemnitor in connection with such
transactions.
25. Entire Agreement.
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This Lease constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior oral or written
agreement.
26. Amendments.
Neither this Lease nor any of the terms hereof may be amended or waived
orally, but only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
27. Landlord's Right to Perform.
Notwithstanding anything to the contrary contained in this Lease, if
this Lease requires Tenant to undertake any action or make any repair to the
Premises and Tenant fails to undertake such action or make such repair, Landlord
may, at its election, after five (5) days notice to Tenant and Tenant's failure
to cure the foregoing except that no notice or cure period shall be required in
cases of emergency, make said repair as the agent of Tenant, and Tenant shall
reimburse Landlord within ten (10) days after demand therefor, for all costs and
expenses incurred by Landlord in connection therewith or interest at a rate per
annum that is 4% above the Prime Rate.
28. Recording.
Simultaneously with the execution and delivery of this Lease, the
parties shall execute and deliver (a) a memorandum of this Lease in the form of
Exhibit B hereto, which memorandum shall be recorded in the land records of
Atlantic City and (b) a Termination of Memorandum in the form of Exhibit C
hereto, which shall be held by Landlord and recorded only in the event of the
expiration of this Lease or a termination of this Lease in accordance with its
terms. Landlord and Tenant shall cooperate with each other in taking such steps
(including delivery of any ancillary documents) as may be required to record the
foregoing documents.
29. Waiver of Trial by Jury.
IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE
RESPECTIVE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER (EXCEPT FOR PERSONAL INJURY OR PROPERTY DAMAGE) ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OF OR OCCUPANCY OF THE
PREMISES, AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY REMEDY.
30. Rules of Usage.
(a) The following rules of usage shall apply to this Lease unless
otherwise required by the context:
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(b) Singular words include the plural and vice versa. All pronouns
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person(s) referred to may require.
(c) References to articles, sections, exhibits or schedules are
references to articles, sections, exhibits or schedules of this Lease. The words
"herein", "hereof" and "hereunder" and words of similar import shall be
construed to refer to this Lease as a whole and not to any particular article,
section, paragraph or subpart thereof unless expressly so stated.
(d) The headings, subheadings and table of contents used in this Lease
are solely for convenience of reference and shall not constitute a part of this
Lease nor shall they affect their meaning, construction or effect.
(e) References to any person shall include such person and its
successors and permitted assigns and in the case of an individual, his or her
heirs and legal representatives.
(f) Each of the parties and their counsel have reviewed and revised, or
requested revisions to, this Lease, and the usual rule of construction that any
ambiguities are to be resolved against the drafting party shall be inapplicable
in the construction and interpretation of this Lease.
(g) Unless the contrary is required by an express provision or the
context, each reference to "the Premises" shall be deemed a reference to "the
Premises or any part thereof".
(h) Any term defined by reference to an agreement, instrument or other
document shall have the meaning so assigned to it whether or not such agreement,
instrument or document is in effect.
(i) The words "include", "including" and "such as" shall each be
construed as if followed by the phrase "without limitation".
(j) Any reference to Landlord's attorneys' fees shall mean Landlord's
reasonable attorneys' fees, disbursements and other expenses incurred by
Landlord, including those incurred in connection with any appellate proceedings.
(k) The word "re-enter" as used herein is not restricted to its
technical legal meaning.
31. Governing Law.
(a) This Lease shall be governed by and construed in accordance with
laws of the State of New Jersey.
32. Counterpart Execution.
(a) This Lease may be executed in two or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof
of this Lease to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date first set forth above.
SUN INTERNATIONAL NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Corporate Counsel
COLONY RIH ACQUISITIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Title: Vice President
Xxxxxxxx X. Xxxxx
EXHIBIT A -- Premises
EXHIBIT B -- Memorandum of Lease Agreement
EXHIBIT C -- Termination of Memorandum of Lease
