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EXHIBIT 10.23
LEASE
FOR
RESTAURANT SPACE
By and Between
NEW CASTLE CORP.,
A NEVADA CORPORATION,
AS LANDLORD
And
SITKA RESTAURANT GROUP, INC.,
A NEVADA CORPORATION,
AS TENANT
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TABLE OF CONTENTS
Page
ARTICLE 1 ....................................................................1
DEFINITIONS...........................................................1
1.1 Affiliate.........................................................1
1.2 Commencement Date.................................................1
1.3 Floor Area .......................................................1
1.4 Gross Sales ......................................................1
1.5 Lease Year .......................................................2
1.6 Person ...........................................................3
1.7 Permitted Closure Period..........................................3
1.8 Project ..........................................................3
1.9 Rent Commencement Date............................................3
1.10 Rules and Regulations............................................3
1.11 Tenant Improvements..............................................3
1.12 TI Costs ........................................................3
1.13 TI Cost Statement ...............................................3
ARTICLE 2 ....................................................................3
LEASE OF PREMISES AND CONSTRUCTION ...................................3
2.1 Lease ............................................................3
2.2 Construction of Premises..........................................4
2.3 Relocation .......................................................4
2.4 Remodeling .......................................................5
ARTICLE 3 ....................................................................5
TERM .................................................................5
3.1 Duration .........................................................5
ARTICLE 4 ....................................................................7
MINIMUM RENT .........................................................7
4.1 Minimum Rent......................................................7
ARTICLE 5 ....................................................................8
PERCENTAGE RENT ......................................................8
5.1 Percentage Rent ..................................................8
5.2 Annual Adjustment ................................................8
5.3 Tenant Reports ...................................................8
5.4 Tenant Records....................................................9
5.5 Audit.............................................................9
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ARTICLE 6 ...................................................................10
ADDITIONAL RENT .....................................................10
6.1 Additional Rent .................................................10
6.2 Payments by Landlord ............................................10
ARTICLE 7....................................................................10
USE AND OPERATION....................................................10
7.1 Designated and Exclusive Use....................................10
7.2 Insurance Requirements: Governmental Regulations................10
7.3 Restrictions on Use ............................................11
7.4 Business Operations ............................................12
7.5 Tradename ......................................................12
7.6 Employees ......................................................12
7.7 Security .......................................................14
7.8 Regulatory Authorities .........................................15
7.9 Restrictive Covenant ...........................................15
7.10 Landlord Comps .................................................16
7.11 Room Charges ...................................................17
7.12 Beverage Providers .............................................17
ARTICLE 8 ...................................................................17
INSURANCE ...........................................................17
8.1 Tenant's Insurance ..............................................17
8.2 Landlord's Insurance ............................................18
8.3 Waiver of Subrogation ...........................................18
ARTICLE 9 ...................................................................19
TAXES ...............................................................19
9.1 Additional Taxes.................................................19
9.2 Sales Tax........................................................19
9.3 CET.... .........................................................19
ARTICLE 10 ..................................................................20
SERVICES ............................................................20
10.1 Services Provided...............................................20
10.2 Service Charge..................................................21
10.3 Service Interruption............................................21
ARTICLE 11 ..................................................................21
REPAIRS AND MAINTENANCE .............................................21
11.1 Repairs and Maintenance by Landlord.............................21
11.2 Repairs and Maintenance by Tenant...............................22
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ARTICLE 12 ..................................................................22
ALTERATIONS AND IMPROVEMENTS.........................................22
12.1 Alterations and Improvements....................................22
12.2 Trade Fixtures..................................................23
12.3 Liens ..........................................................23
ARTICLE 13 ..................................................................24
ADVERTISING .........................................................24
13.1 Advertising.....................................................24
ARTICLE 14 ..................................................................24
RULES AND REGULATIONS................................................24
14.1 Rules and Regulations ..........................................24
ARTICLE 15...................................................................25
ASSIGNMENT AND SUBLETTING ...........................................25
15.1 Assignment and Subletting ......................................25
15.2 Transfer Premium ...............................................25
15.3 Landlord's Option as to Subject Space...........................26
15.4 Concessionaires ................................................26
ARTICLE 16 ..................................................................26
INDEMNITY ...........................................................26
16.1 Indemnification.................................................26
ARTICLE 17 ..................................................................27
EMINENT DOMAIN.......................................................27
17.1 Entire or Substantial Taking....................................27
17.2 Partial Taking .................................................27
17.3 Election to Terminate...........................................27
17.4 Disposition of Proceeds.........................................27
ARTICLE 18 ..................................................................27
DAMAGE OR DESTRUCTION ...............................................27
18.1 Damage or Destruction: Landlord to Rebuild .....................27
18.2 Option to Terminate ............................................28
18.3 Portions to be Rebuilt by Landlord and Tenant...................28
18.4 Non-Liability ..................................................28
18.5 Operations During Reconstruction Period.........................28
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ARTICLE 19...................................................................29
ENTRY BY LANDLORD....................................................29
19.1 Access to Premises..............................................29
19.2 Leasing Activities..............................................29
ARTICLE 20...................................................................29
ABANDONMENT..........................................................29
20.1 Abandonment.....................................................29
ARTICLE 21...................................................................30
EVENTS OF DEFAULT BY TENANT..........................................30
21.1 Event of Default................................................30
ARTICLE 22...................................................................31
REMEDIES OF LANDLORD.................................................31
22.1 Remedies........................................................31
22.2 Late Charge.....................................................32
ARTICLE 23...................................................................33
ESTOPPEL CERTIFICATES AND SUBORDINATION..............................33
23.1 Estoppel Certificates...........................................33
23.2 Subordination...................................................33
23.3 Priority Option.................................................33
23.4 Attornment......................................................33
ARTICLE 24...................................................................34
SALE OF PREMISES.....................................................34
24.1 Sale of Premises by Landlord....................................34
ARTICLE 25...................................................................34
HOLDING OVER.........................................................34
25.1 Holding Over....................................................34
ARTICLE 26...................................................................34
SURRENDER OF PREMISES................................................34
26.1 Surrender.......................................................34
26.2 Merger Upon Surrender...........................................35
ARTICLE 27...................................................................35
GENERAL PROVISIONS...................................................35
27.1 Waivers.........................................................35
27.2 No Accord and Satisfaction......................................35
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27.3 Notices..............................................................35
27.4 Relationship of the Parties..........................................36
27.5 Attorneys' Fees......................................................36
27.6 Binding Effect.......................................................36
27.7 Interest on Past Due Obligations.....................................36
27.8 Severability ........................................................36
27.9 Entire Agreement; Amendment..........................................36
27.10 Captions ...........................................................36
27.11 Construction .......................................................37
27.12 Time of Essence ....................................................37
27.13 Execution of Additional Documents...................................37
27.14 Time Periods........................................................37
27.15 Recordation.........................................................37
27.16 Brokers.............................................................37
Exhibit A - Description of Project
Exhibit B - Site Plan for Premises
Exhibit C - Work Letter Agreement
Exhibit D - Ownership of Tenant
Exhibit E - Accounting Procedures
Exhibit F - Excluded Employees
Exhibit G - Utility Rates
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FUNDAMENTAL LEASE PROVISIONS
LANDLORD: New Castle Corp., a Nevada corporation
Landlord's Address: c/o Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
TENANT: Sitka Restaurant Group, Inc.,
a Nevada corporation
Tenant's Address: 0000 Xxxx Xxxxxxxxx Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
TENANT'S TRADENAME: WCW Nitro Grill
PREMISES: Approximately 15,600 approx. square feet of
Floor Area, shown by diagonal lines on
EXHIBIT B. The Premises shall not include
the exterior walls, the roof, the area above
or below the Premises, or the land upon
which the Premises are located.
COMMENCEMENT DATE: The date Landlord delivers the Premises to
Tenant. In no event shall the Commencement
Date occur prior to Landlord's receipt of a
fully executed copy of the WCW License
Agreement (defined in SECTION 3.2(a) below).
RENT COMMENCEMENT DATE: The earlier of the seventy-fifth (75th) day
following the Commencement Date or the date
Tenant opens the Premises for business to
the public
TERM: 120 full calendar months
OPTIONS TO EXTEND: None
MINIMUM RENT: $14,583/month as set forth in SECTION 4.1
below
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ANNUAL PERCENTAGE
RENTAL RATE: The amounts specified in SECTION 5.1(a) for
Gross Sales of Food and Beverage
The amounts specified in SECTION 5.1(b) for
Gross Sales of all other items
(subject to adjustment per SECTION 5.1)
USE OF PREMISES: Restaurant having WCW theme and providing
live music, live broadcasts of WCW events
and other similar WCW themed entertainment.
Tenant may also engage in the sale of WCW
retail merchandise. Tenant shall also have
the non-exclusive right to sell alcoholic
beverages.
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LEASE
FOR
RESTAURANT SPACE
(THE "LEASE")
DATE: November 19th, 1998 (the "EXECUTION DATE")
LANDLORD: NEW CASTLE CORP., a Nevada corporation
TENANT: SITKA RESTAURANT GROUP, INC., a Nevada corporation
In consideration of the mutual covenants and agreements contained in
this Lease, Landlord and Tenant agree as follows:
ARTICLE I
DEFINITIONS
As used in this Lease, the following terms shall have the
following meanings:
1.1 AFFILIATE: In relation to any Person, any other Person
controlled, directly or indirectly, by such Person, any other Person that
controls, directly or indirectly, such Person or any Person directly or
indirectly under common control with such Person.
1.2 COMMENCEMENT DATE: The date for commencement of the Lease
Term set forth in the FUNDAMENTAL LEASE PROVISIONS.
1.3 FLOOR AREA: The respective portion of the floor area from
time to time subject to lease by Tenant pursuant to this Lease, as determined
and applied by Landlord.
1.4 GROSS SALES: The actual sales of all food, goods, wares and
merchandise sold, leased, licensed or delivered and the actual charges of all
services performed by Tenant or by any subtenant, licensee or concessionaire of
Tenant in, at, from, or arising out of the use of the Premises, whether for
wholesale, retail, cash, credit, or trade-ins or otherwise, without reserve or
deduction for inability or failure to collect. Gross Sales shall include,
without limitation, sales and services: (a) where the orders therefor originate
in, at, from, or arising out of the use of the Premises, whether delivery or
performance is made from the Premises or from some other place, (b) made or
performed by mail, telephone, telegraph, facsimile, or other electronic means,
(c) made or performed by means of mechanical or other vending devices in the
Premises, and (d) which Tenant or any subtenant, licensee, concessionaire or
other person in the normal and customary course of its business would credit or
attribute to its operations at the Premises or any
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part thereof. Any sums deposited with and forfeited to Tenant shall be included
in Gross Sales. Each installment or credit sale shall be treated as a sale for
the full price in the month during which such sale is made, regardless of
whether or when Tenant receives payment therefor. No franchise or capital stock
tax and no income or similar tax based on income or profits shall be deducted
from Gross Sales. Gross Sales shall not include, or if included there shall be
deducted (but only to the extent they have been included in Gross Sales): (i)
the net amount of any cash or credit refunds or credit allowed on services upon
any sale from the Premises where the merchandise sold, or some part thereof, is
returned by the purchaser to Tenant after the sale (not exceeding in amount the
selling price of the item in question) or upon the rejection of any services
from the Premises, provided that Tenant shall not be required to accept any
returned merchandise if a cash refund or credit allowance is issued in lieu
thereof, and provided further that any credit or refund shall reduce Gross Sales
for the accounting period such credit or refund is made but shall not affect
Gross Sales for the period in which the original sales relating to such income
were made; (ii) the amount of any city, county, state or federal sales, use,
gross receipts, transaction privilege, luxury, casino entertainment or excise
tax ("CET") on such sale which is both added to the selling price (or absorbed
in the price) and paid to the taxing authorities by Tenant (but not by any
vendor of Tenant); (iii) the amount of any discount on sales to employees; (iv)
service charges, interest and collection expenses received or receivable from
customers for sales on credit and service, credit card and other charges or fees
(exclusive, however, of any service charges payable to banks) paid by Tenant to
credit card companies and similar organizations resulting from use of credit or
debit cards by customers; (v) the value of any complimentary items or discounts
granted pursuant to SECTION 7.10 hereof, or the costs of any complimentary
issued by Landlord or any of its Affiliates for food, beverages, other goods,
services, merchandise or the like purchased or received from or at the Premises
to any hotel or casino guest of Landlord or any such Affiliate at the Project or
any other hotel/casino owned or operated by Landlord or any of its Affiliates;
(vi) income from the reimbursement pursuant to SECTION 7.11 hereof of the costs
of any room charges incurred by any hotel guest at the Project or any other
property owned or operated by Landlord or any of its Affiliates, provided that
all such items shall be considered income for purposes of calculating Gross
Sales during the accounting period when such charges are made by the guest;
(vii) income from inventory returned to suppliers in an amount not to exceed the
original amount paid by Tenant for the returned inventory; and (viii) the
redemption of gift certificates (but not the purchase of gift certificates). The
retail value of food or merchandise used or given away as samples shall not be
included in Gross Sales, but rather shall be credited against the amount of
Gross Sales made from the Premises. Where coupons, 2 for -1's or other discount
promotions are used, only the actual sales price paid to Tenant shall be
included in Gross Sales.
1.5 LEASE YEAR: The period during the Lease Term commencing on
January 1st in each year and ending at midnight on the 31st of December of that
year, except that, subject to SECTION 4.1, the first Lease Year shall commence
at the start of the Lease Term and shall end at midnight on the 31st of
December of that year, and except that the last Lease Year shall end at the
expiration of the term of this Lease or at the time of any earlier termination
of this Lease in accordance with the terms hereof.
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1.6 PERSON: Any natural person, corporation, limited liability
company, partnership, limited partnership, limited liability partnership,
association, organization or any other entity of whatsoever nature.
1.7 PERMITTED CLOSURE PERIOD: Any period when the Premises may
be temporarily closed for relocation pursuant to SECTION 2.3 or remodeling
pursuant to SECTION 2.4, untenantable by reason of fire or other casualty,
temporarily closed for repairs or maintenance under ARTICLE 11, or temporarily
closed due to failure to supply Services under ARTICLE 10, or temporarily closed
because of a permitted taking pursuant to SECTION 17.2.
1.8 PROJECT: The building and related improvements commonly
referred to as The Excalibur Hotel and Casino located on the real property more
particularly described on EXHIBIT A attached hereto.
1.9 RENT COMMENCEMENT DATE: The date for commencement of rent
payments set forth in the Fundamental Lease Provisions.
1.10 RULES AND REGULATIONS: The rules and regulations adopted
in accordance with SECTION 14.1.
1.11 TENANT IMPROVEMENTS: The improvements to the Premises to
be constructed pursuant to EXHIBIT C.
1.12 TI COSTS: The cost of the Tenant Improvements determined
in accordance with EXHIBIT C. Wherever applicable in this Lease, the TI Costs
shall be deemed to be amortized on a straight line basis over a ten (10) year
period commencing on the Rent Commencement Date.
1.13 TI COST STATEMENT: A statement setting forth the TI Costs
as set forth on EXHIBIT C.
ARTICLE 2
LEASE OF PREMISES AND CONSTRUCTION
2.1 LEASE. Landlord leases the Premises to Tenant and Tenant
leases the Premises from Landlord, for the Lease Term, at the rental, and upon
the covenants and conditions contained in this Lease, including the Fundamental
Lease Provisions and all Exhibits attached hereto. In addition to the Premises,
Tenant shall have the right to use, in common with Landlord and other tenants or
licensees of the Project, areas to be designated by Landlord for receiving,
garbage disposal, freight elevators and locker room facilities (the "COMMON
AREAS"). The Common Areas may be altered, reconfigured or relocated by Landlord
from time to time during the term of this Lease.
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2.2 CONSTRUCTION OF PREMISES. Tenant shall construct or cause to
be constructed the Tenant Improvements in accordance with the Work Letter
Agreement attached as EXHIBIT C. Landlord shall not be obligated to provide or
pay for any improvement work or services related to the Tenant Improvements.
Tenant also acknowledges that Landlord has made no representation or warranty
regarding the condition of the Premises or the Project except as specifically
set forth in this Lease and the Work Letter Agreement.
2.3 RELOCATION.
(a) Tenant acknowledges that Landlord shall have an absolute
right from time to time to relocate the Premises within the Project, at
Landlord's cost, at any time during the Lease Term, provided that the premises
to which Tenant is relocated (i) shall be no less than eighty-five percent (85%)
of the size of the original premises, (ii) shall have the prominence of
location and visibility that is reasonably equivalent to or better than the
original premises, (iii) shall be located in an area having substantially
similar levels of pedestrian foot traffic, and (iv) shall be appropriately
configured for the restaurant use of the original premises. If Landlord
exercises its right to relocate Tenant pursuant to this Section, Landlord shall
notify Tenant in writing (the "Relocation Notice") specifying the location of
the new premises. If Tenant objects to the new premises on the basis that it
fails to meet the criteria set forth above, Tenant shall notify Landlord in
writing within ten (10) days following the Relocation Notice, specifying its
objections to the new premises. If Tenant fails to object within such 10-day
period, Tenant shall be deemed to have approved the new premises. If Tenant
objects to the new premises, Landlord and Tenant shall meet and confer in an
attempt to address Tenant's concerns, but if Landlord is unable to resolve the
same within thirty (30) days after the Relocation Notice, Landlord may terminate
this Lease upon written notice to Tenant, which termination shall be effective
sixty (60) days after such notice. If Landlord elects to terminate the Lease
under this SECTION 2.3, Landlord shall pay to Tenant the unamortized portion of
the TI Costs, provided Tenant is not in default at the time of such termination.
(b) All costs and expenses of relocating to the new premises,
including, without limitation, all reasonable costs incurred by Tenant in
relocating the new premises, shall be paid by Landlord. If Landlord exercises
its right to relocate Tenant, Landlord shall reconstruct Tenant Improvements in
the new premises in a form substantially equivalent to the Tenant Improvements
constructed pursuant to EXHIBIT C. Within ten (10) days after Landlord has
notified Tenant that it has substantially completed the Tenant Improvements (in
accordance with the standards for "Substantial Completion" as set forth in
EXHIBIT C) to be constructed by Landlord on the relocated premises, Tenant shall
surrender the Premises and the relocated premises shall be deemed the Premises
hereunder. During any portion of such 10-day period that Tenant is not
conducting business in either premises, rent and all other costs or charges
payable hereunder (other than premiums for insurance maintained by Tenant
hereunder) shall be abated and the Lease Term shall be extended for the entire
period during which Tenant is not doing business. Upon Landlord's request,
Tenant shall execute an amendment designating the relocated Premises on EXHIBIT
B.
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Other than EXHIBIT B, all terms and conditions contained in this Lease shall
continue unmodified following such relocation.
2.4 REMODELING. Landlord may, in connection with any remodeling of all
or any portion of the Project, change, at Landlord's sole cost and expense, the
dimensions or reduce the size of the Premises to not less than eighty-five
percent (85%) of its original size; provided, however, that if, in Tenant's
reasonable judgment, as a result thereof the remaining portion of the Premises
is not suitable for the purpose for which Tenant has leased the Premises, Tenant
may terminate this Lease upon sixty (60) days written notice to Landlord, which
notice shall be given within thirty (30) days after Landlord notifies Tenant of
Landlord's intention to remodel; provided further, however, that such
termination shall not be effective if within thirty (30) days of Tenant's notice
thereof, Landlord notifies Tenant either of its election to relocate Tenant
pursuant to SECTION 2.3 hereof or to rescind Landlord's intention to remodel. If
Tenant elects to terminate the Lease under this SECTION 2.4, Landlord shall pay
to tenant the unamortized portion of the TI Costs, provided Tenant is not in
default at the time of such termination. If Tenant does not elect to terminate
this Lease pursuant to this SECTION 2.4 and as a result of Landlord's remodeling
under this SECTION 2.4 there is any reduction in the area of Premises, then
Minimum Rent shall be reduced to an amount equal to that proportion of the
Minimum Rent that the Floor Area after the remodeling bears to the Floor Area of
the Premises prior to the remodeling. In the event of any remodeling pursuant to
this SECTION 2.4, Landlord shall repair any damage to the Premises caused
thereby. In connection with any such remodeling, Landlord may require Tenant to
cease conducting business in the Premises for a period not to exceed thirty (30)
days. The rent and all other costs and charges payable or reimbursable hereunder
(other than premiums for insurance maintained by Tenant hereunder) shall be
abated during any period that Landlord requires Tenant to cease conducting
business and the Lease Term shall be extended by an amount of time equal to the
entire period during which Landlord requires Tenant to cease conducting
business. Upon Landlord's request, Tenant shall execute an amendment designating
any changes to the Premises pursuant to this Section on EXHIBIT B.
2.5 AMORTIZATION OF TENANT IMPROVEMENTS. For purposes of any payments
due to Tenant in the event of a termination under SECTION 2.3 and SECTION 2.4,
such amount shall be paid upon the effective date of termination of the Lease
and the surrender by the Tenant of the Premises. In calculating the termination
payment, the TI Costs shall be determined by reference to the TI Cost Statement
and shall be amortized as set forth in SECTION 1.12 above.
ARTICLE 3
TERM
3.1 DURATION. The term of this Lease (the "LEASE TERM") shall be for a
period specified in the FUNDAMENTAL LEASE PROVISIONS, commencing on the
Commencement Date, and unless sooner terminated in accordance with the
provisions hereof, ending on the last day of the
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Lease Term. If the Commencement Date does not occur on the first day of a
calendar month, the fractional portion of such month shall be added to the Lease
Term. Tenant shall not be liable for any rent until the Rent Commencement Date.
Following the Rent Commencement Date, Tenant and Landlord shall, upon either
party's request, execute and deliver to Landlord an addendum to this Lease
specifying the Commencement Date, the Rent Commencement Date, and the last day
of the Lease Term.
3.2 WCW LICENSE AGREEMENT/TERMINATION RIGHTS.
(a) As a condition precedent to this Lease and prior to the
Commencement Date, Tenant shall obtain from World Championship Wrestling, Inc.
("WCW") an exclusive license to operate a WCW wrestling themed restaurant and a
non-exclusive license to operate a WCW Wrestling retail store in Xxxxx County,
Nevada (the "WCW LICENSE AGREEMENT"). The WCW License Agreement shall be in a
form reasonably acceptable to Landlord (as evidenced by Landlord's written
approval thereof). Without limiting the foregoing, the WCW License Agreement
shall be irrevocable for the Term of this Lease and shall give Tenant the right
to seek damages in the event of a breach thereof by WCW. Tenant shall use its
best efforts to obtain the fully executed WCW License Agreement within thirty
(30) days following the Execution Date, and if it fails to do so, this Lease
shall automatically terminate and be of no further force and effect. If the WCW
License Agreement expires, terminates or is revoked for any reason prior to the
expiration of the Lease Term, Tenant shall provide Landlord with notice of such
expiration, termination or revocation within ten (10) days of such occurrence
and such event shall constitute an event of default under this Agreement,
entitling Landlord to terminate this Lease, in addition to all other rights and
remedies to which Landlord is entitled hereunder. Such written notice shall
specify the date of such termination. If this Lease is terminated in accordance
with the terms of this SECTION 3.2(a), Tenant shall not be entitled to
reimbursement for any unamortized TI Costs. Landlord agrees that notwithstanding
such WCW License Agreement, Landlord will not xxx or otherwise seek redress
against WCW and/or its parent or Affiliates for any act, omission, liability or
obligation of Tenant under this Lease.
(b) Landlord shall have the right, exercisable in its sole and absolute
discretion, to elect to terminate this Lease at any time after the third (3rd)
anniversary of the Rent Commencement Date upon one hundred twenty (120) days
prior written notice to Tenant. If Landlord terminates this Lease pursuant to
this SECTION 3.2(b), Landlord shall reimburse Tenant for the unamortized portion
of any TI Costs paid by Tenant, provided Tenant is not in default at the time of
such termination.
(c) Tenant shall have the right, exercisable in its sole and absolute
discretion, to elect to terminate this Lease at any time after the first (1st)
anniversary of the Rent Commencement Date upon one hundred twenty (120) days
prior written notice to Landlord. Upon its exercise of the termination rights in
this SECTION 3.2(c), Tenant shall pay to Landlord the estimated cost to Landlord
to return the Premises to the condition existing prior to the construction of
the Tenant Improvements ("REFURBISHMENT COST"). The Refurbishment Cost and the
annual
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incremental increase thereto to reflect increases in construction costs over
time shall be determined by mutual agreement of Landlord and Tenant at the time
of the approval of the Tenant Improvement Plans as set forth in EXHIBIT C.
Following the approval of the Tenant Improvement Plans, Tenant and Landlord
shall execute and deliver to Landlord an addendum to this Lease specifying the
Refurbishment Cost and the agreed upon annual incremental increase thereto.
(d) Upon the exercise by Landlord or Tenant of any of the termination
rights described above and the satisfaction of all of the foregoing conditions
precedent, this Lease shall be terminated and neither Landlord nor Tenant shall
have any further liability or obligation to the other, except as otherwise
provided in SECTION 3.2(a) and except with respect to liabilities, obligations
or other provisions specifically stated in this Lease to survive any termination
hereof.
ARTICLE 4
MINIMUM RENT
4.1 MINIMUM RENT. The amount set forth in the FUNDAMENTAL LEASE
PROVISIONS as Minimum Rent (the "MINIMUM Rent") shall be paid as follows:
(a) On or before the Rent Commencement Date set forth in the
FUNDAMENTAL LEASE PROVISIONS, Tenant shall pay Landlord the entire
Minimum Rent due for the first year of the Lease which amount is One
Hundred Seventy-Four Thousand Nine Hundred Ninety-Six Dollars
($174,996).
(b) Commencing on the first day of the calendar month that
occurs twelve (12) months after the Rent Commencement Date, Tenant
shall pay Landlord the Minimum Rent as set forth in the FUNDAMENTAL
LEASE PROVISIONS.
(c) Thereafter, Tenant shall pay Landlord the Minimum Rent as
set forth in the FUNDAMENTAL LEASE PROVISIONS monthly in advance on the
first day of each month during the remainder of the Lease Term.
(d) All Minimum Rent due hereunder shall be paid when due as
set forth above without any deduction or offset.
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ARTICLE 5
PERCENTAGE RENT
5.1 PERCENTAGE RENT. In addition to the Minimum Rent set forth in the
FUNDAMENTAL LEASE PROVISIONS and other sums required to be paid by Tenant under
this Lease, Tenant shall pay the following:
(a) On all food and beverage items sold by Tenant during a Lease Year:
(i) Three percent (3%) on Gross Sales of food and beverages
up to and including $7,000,000; and
(ii) Five percent (5%) on Gross Sales of food and beverages
in excess of $7,000,000; and
(b) On all items other than food and beverages sold by Tenant during a
Lease Year, eight percent (8%) on Gross Sales of non-food and beverage items
unless Gross Sales from all sources (food, beverage and other items) exceed
$8,000,000, in which event Tenant shall pay ten percent (10%) of Gross Sales on
all non-food and beverage items.
The sums described in SECTIONS 5.1(a) AND 5.1(b) above shall be collectively
referred to as "PERCENTAGE RENT". Tenant shall only pay Percentage Rent in any
Lease Year if the total Percentage Rent exceeds the Minimum Rent paid by Tenant
for the same period. Percentage Rent shall be computed each month, and within
fifteen (15) days of the date such month ends, Tenant shall pay to Landlord any
such Percentage Rent. In no event shall Landlord be obligated to refund to
Tenant any portion of the Minimum Rent for a given Lease Year if the amount
calculated by multiplying the applicable percentage rental rates by the
appropriate Gross Sales total for each item when added together produce a total
that is less than the Minimum Rent for such Lease Year.
5.2 ANNUAL ADJUSTMENT. Within ninety (90) days after the end of each
Lease Year, Tenant shall determine the amount of Tenant's total Gross Sales
during that Lease Year, as well as Gross Sales for food and beverage items and
non-food and beverage items, and the amounts payable to Landlord as Minimum Rent
and as Percentage Rent for that Lease Year. If the total amount of Percentage
Rent owing for the Lease Year is greater than the total amount of Percentage
Rent paid by Tenant during the Lease Year, Tenant shall immediately pay the
deficiency to Landlord. If the total amount of Percentage Rent paid by Tenant
during a Lease Year exceeds the total amount of Percentage Rent required to be
paid by Tenant during such Lease Year, Tenant shall receive a credit equivalent
to the excess which may be deducted by Tenant from the next accruing payment or
payments of either Minimum Rent or Percentage Rent.
5.3 TENANT REPORTS. On or before the fifteenth (15th) day following the
end of each month during the Lease Term, Tenant agrees to submit to Landlord a
written statement signed by
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Tenant and certified by Tenant to be true and correct, showing the amount of
Gross Sales (total, food and beverage, and non-food and beverage) during the
preceding month. On or before the forty-fifth (45th) day following the end of
each Lease Year, Tenant agrees to submit to Landlord a written statement signed
by Tenant and certified by Tenant to be true and correct, showing the amount of
Gross Sales (total, food and beverage, and non-food and beverage) during the
preceding Lease Year.
5.4 TENANT RECORDS. Tenant agrees to keep full, complete and proper
books, records and accounts of the daily Gross Sales from the Premises and any
concession operated at any time in the Premises; of inventories, purchases and
receipts of merchandise; of sales tax; and of all other transactions and
matters, including sales slips, cash register tape readings, sales books, bank
books, deposit slips and sales tax reports, normally examined and required to be
kept by an independent accountant and/or any Regulatory Authority (as
hereinafter defined) pursuant to accepted auditing standards in performing an
audit of Gross Sales. All such books, records and accounts shall be kept for a
period of at least one (1) year following the end of each the Lease Year. Within
one (1) year after the end of the Lease Year, Landlord, its agents and
employees, upon at least seven (7) days prior written notice, may examine and
inspect all of the books and records relating to the business conducted upon the
Premises for the purpose of investigating and verifying the accuracy of any
statement of Gross Sales during any prior Lease Year. Tenant agrees to require
any subtenants, concessionaires, and licensees to also maintain records meeting
the requirements of this SECTION 5.4.
5.5 AUDIT. At any time within one (1) year after the end of the Lease
Year, Landlord may cause an audit of Tenant's business to be made for the
purpose of verifying the accuracy of any statement of Gross Sales. The audit
shall be performed by a representative selected by Landlord, and Tenant agrees
to make all records available for the audit at the Premises or at Tenant's
corporate offices, as Tenant may elect. If the results of the audit show that
Tenant's statement of Gross Sales for any period has been understated by five
percent (5%) or more, then Tenant shall immediately pay Landlord the cost of
the audit in addition to any deficiency payment required, plus an amount equal
to twelve percent (12%) of the amount of the understatement. If Understatements
are shown for more than three periods during the Lease Term, such
understatements shall be an incurable event of default under this Lease. Any
information obtained by Landlord as a result of such an audit or otherwise
pursuant to this Lease shall be held in confidence by Landlord except in any
proceeding or action to collect the cost of the audit or deficiency, and then
only to the extent relevant thereto, or with respect to a prospective sale,
mortgage, lease or leaseback of the Premises.
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ARTICLE 6
ADDITIONAL RENT
6.1 ADDITIONAL RENT. In addition to Minimum Rent and Percentage Rent,
all other payments to be made by Tenant under this Lease, including, but not
limited to the charges for services provided under ARTICLE 10, shall be deemed
Additional Rent and shall be due and payable on demand if no other time for
payment is specified.
6.2 PAYMENTS BY LANDLORD. Upon ten (10) days prior written notice to
Tenant or such shorter period as may be necessary for Landlord to avoid a
delinquency and/or late charge, Landlord may pay any sum or do any act which
Tenant has failed to do, and Tenant agrees to pay Landlord, upon demand, all
sums so expended by Landlord, together with interest from the date of
expenditure until paid at a rate equal to the lesser of twelve percent (12%) per
annum or the maximum rate allowed by law. Such sum and interest shall also be
deemed Additional Rent.
ARTICLE 7
USE AND OPERATION
7.1 DESIGNATED AND EXCLUSIVE USE. Tenant agrees to use the Premises
solely for the purpose set forth in the FUNDAMENTAL LEASE PROVISIONS. Tenant
shall not use or permit the Premises to be used for any other purpose whatsoever
without Landlord's prior written consent. Landlord hereby covenants and agrees
that Tenant shall have the exclusive right to operate a restaurant having the
theme described in the FUNDAMENTAL LEASE PROVISIONS within the Project. On or
before the Rent Commencement Date, Tenant shall submit its menu to Landlord for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed. Without limiting Landlord's approval rights, Landlord may withhold its
consent to the menu or selected menu items if, in Landlord's reasonable
judgment, the menu or such items are deceptively similar to the menu or to items
served by other food service facilities operated by Landlord or by third parties
in the Project or would breach any exclusive rights granted to third parties.
Tenant shall not substantially change the type or character of items being
offered for sale without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed.
7.2 INSURANCE REQUIREMENTS: GOVERNMENTAL REGULATIONS. Tenant shall not
do or permit anything to be done in or about the Premises, or bring or keep
anything on the Premises, which will in any way increase the rate of fire
insurance on the Project over and above the customary rates for fire insurance
for projects including restaurant(s) similar to the Premises. At Tenant's
expense, Tenant agrees to comply, in all material respects, with all fire and
public liability insurance requirements relating to the Premises. Tenant agrees
to comply promptly, in all material respects, with all governmental laws,
ordinances, orders, rules and regulations affecting the Premises, including,
without limitation, any applicable environmental law,
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regulation, ordinance or order of any governmental entity, or any other federal,
state or local laws relating to the contamination of or adverse effects on the
environment. Tenant hereby agrees to indemnify and hold Landlord harmless for,
from and against any losses, liabilities, damages, costs, expenses, and claims
of any kind whatsoever, including reasonable attorneys' fees, incurred by
Landlord and arising from or relating to the violation by Tenant of any
agreement of Tenant made in the immediately foregoing sentence. This indemnity
shall survive the expiration or earlier termination of the Lease Term for a
period of two (2) years.
7.3 RESTRICTIONS ON USE.
(a) Without limiting the provisions of this ARTICLE 7, no
auction, fire or bankruptcy sales may be conducted in the Premises without
Landlord's prior written consent. Tenant shall not, without Landlord's prior
written approval, operate or permit to be operated on the Premises any coin or
token operated vending machines or similar device for the sale or leasing to the
public of any goods, wares, merchandise, food, beverages, and/or service,
including, without limitation, pay telephones, pay lockers, pay toilets, scales
and amusement devices. Tenant shall not use or permit the use of any portion of
the Premises for sleeping apartments, lodging rooms or gaming activities. Tenant
shall not perform any acts or carry on any practices which may injure the
Premises or other parts of the Project or be a nuisance or menace to other
tenants in the Project, Landlord or the patrons and customers of either of them.
Tenant agrees to keep the Premises, the walkways adjacent to the Premises, and
any loading platform and service areas allocated or approved by Landlord for the
use by Tenant (whether or not such use is exclusive), clean and free from
rubbish and dirt at all times. Tenant agrees to store all trash and garbage
within the Premises or in other areas designated by Landlord and to arrange for
removal of such trash and garbage at Tenant's expense. Tenant shall not make any
use of the Premises which is not in compliance with the terms of this Lease or
with the Rules and Regulations.
(b) Without Landlord's prior written consent, which may be
given or withheld in Landlord's sole discretion, Tenant shall not offer for sale
of any merchandise bearing the words "Las Vegas" (other than in combination with
the words "WCW Nitro Grill"), "Excalibur," or other gaming or nationally
licensed character logos, tradenames or emblems (e.g., merchandise bearing NFL
or NBA logos, Disney characters, etc.) or any merchandise which is determined by
Landlord (in its sole discretion) to be offensive or objectionable or to compete
with the restrictive covenant contained in any other lease for space in the
Project.
(c) Tenant shall provide events at the Premises at least
weekly, which events may include, but shall not be limited to, live WCW
broadcasts and live music performances. All entertainment shall be conducted in
a first class, professional manner in keeping with and not inconsistent with or
detrimental to the operation by Landlord of the Project as an exclusive,
first-class resort casino facility, and Tenant shall be responsible for
obtaining all required licenses, permits and other approvals for any such
entertainment in the Premises. Tenant shall notify Landlord in advance and
obtain Landlord's approval of all prospective entertainment to be offered at the
Premises, which approval shall not be unreasonably withheld or delayed.
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7.4 BUSINESS OPERATIONS. From and after the Rent Commencement Date
(except during any Permitted Closure Period), Tenant agrees to continuously
occupy and use the entire Premises for the purpose or purposes specified above,
during those days, nights and hours as shall be determined by Landlord with
Tenant's approval, which shall not be less than 9 hours on Saturday and Sunday
and 5 1/2 hours Monday through Friday. In the event of a breach by Tenant of any
of the conditions of this SECTION 7.4 which is due to the actions or inaction of
Tenant, Landlord shall have, in addition to any and all remedies herein
provided, the right, at its option, to collect not only the Minimum Rent herein
provided, but additional rent at the rate of one-twentieth (1/20) of the Minimum
Rent herein provided for each and every day that Tenant is not open for business
as herein provided. Tenant shall carry at all times in the Premises sufficient
quantities of products as shall be reasonably designed to service its customers
and meet anticipated customer demand, and shall staff the Premises at all times
with sufficient personnel to serve its customers. Tenant's method of conducting
its business in the Premises shall at all times be in keeping with and not
inconsistent with or detrimental to the operation by Landlord of the Project as
an exclusive, first-class resort casino facility. Tenant shall refrain from
using or permitting the use of the Premises or any portion thereof for office,
clerical or other non-selling purposes, except space in the Premises may be used
for such purposes to such extent as is reasonably required for the conduct of
Tenant's business thereon. Tenant shall not use the Premises for storage or
warehouse purposes beyond such use as is reasonably required to keep Tenant's
restaurant adequately stocked for sales of product and merchandise in, at or
from the Premises.
7.5 TRADENAME. Tenant shall conduct business under the tradename set
forth in the FUNDAMENTAL LEASE PROVISIONS and no other without prior written
consent of Landlord. Tenant warrants that it has, and, during the entire Term of
the Lease, will have, the right to operate under the tradename set forth in the
Fundamental Lease Provisions. Landlord shall not acquire any property rights in
or to the name. "WCW Nitro Grill" or "WCW Nitro Grill of Las Vegas" by virtue of
this Lease. Tenant shall not conduct any business at any time either before or
after the termination of this Lease, either in the Premises or elsewhere, under
a name in which the word "Excalibur" appears except in reference to the location
of the Premises, without Landlord's prior written consent, and Tenant shall not
acquire any property right in or to any name which contains said word as a part
thereof. Any permitted use by Tenant of the word "Excalibur" during the Term of
this Lease shall not permit Tenant to use, and Tenant shall not use, such word
either (i) after the termination of this Lease, or (ii) at any other location
during or after the termination of this Lease.
7.6 EMPLOYEES.
(a) Tenant shall control the conduct, demeanor and appearance
of its officers, agents and employees so as to run a first class business in
strict conformity with Landlord's standards. Tenant will ensure that its
personnel act so as not to annoy, disturb or be offensive to customers, patrons
or others in the Project, and if any of Tenant's personnel act in a manner
objectionable to Landlord, Landlord will bring such objection to the attention
of Tenant's manager, who will immediately take all necessary steps to correct
the cause of such objection.
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Tenant warrants that its employees, while working in connection with this
Agreement, will comply with any and all applicable federal, state or local laws,
rules and regulations and ordinances.
(b) Tenant shall be responsible for all salaries, employee
benefits, social security taxes, federal and state unemployment insurance and
any and all similar taxes relating to its employees and for workers'
compensation coverage with respect to its employees pursuant to applicable law.
Tenant's employees shall not be entitled to participate in, or to receive, any
of Landlord's employee benefit or welfare plans, and they shall not be deemed
agents or employees of Landlord for purposes of this Lease or any other purpose.
Tenant will comply with any applicable federal, state or local law, ordinance,
rule or regulation, regarding its employees, including federal or state laws or
regulations regarding minimum compensation, overtime and equal opportunities for
employment.
(c) Tenant shall not cause or permit its employees to enter
upon those areas of the Project which are designated "Employees Only," as the
parties acknowledge that for such purposes, "Employees" refers to the employees
of Landlord and not to the employees of Tenant.
(d) Landlord requires, and Tenant will therefore develop and
implement, a drug testing program for Tenant's employees employed at the
Premises. Except. for the initial salaried, full time management/supervisory
staff (who must be tested prior to opening of the Premises) Tenant's employees
employed at the Premises shall be tested no later than when the individual
employee completes at least 520 hours of service for Tenant at the Premises.
(e) Tenant shall require standard uniforms to be worn by all
of its employees at all times while on duty in the Premises so that all
employees present a clean and well groomed appearance. Landlord may, at any
time, direct Tenant to require any of its employees not so attired to
immediately conform to the requirements of this subparagraph (e) or leave the
Premises.
(f) Landlord and Tenant agree that they are separate and
independent employers. Tenant shall independently and unilaterally adopt such
policies and procedures as it deems appropriate, which shall apply to all
employees of Tenant. Tenant's employment practices shall be lawful and
consistent with legal obligations.
(g) Tenant understands and acknowledges that Landlord is
signatory to a collective bargaining agreements ("CBA") with Local Joint
Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders
Union, Local 165 ("UNION"), which imposes certain restrictions upon the
subcontracting or subleasing of the Project. The Union has agreed that Landlord
may lease a food outlet to Tenant, and that Tenant may employ the employees
listed on EXHIBIT F (the "EXCLUDED EMPLOYEES") who shall not be covered by the
CBA for the Project. Tenant agrees it shall not employ any employees for the
Project other than the Excluded Employees. Landlord and Tenant acknowledge that
managers are not covered by the CBA, and Tenant may employ such managers as it
determines to be appropriate.
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(h) Tenant understands and acknowledges that Landlord is a
signatory to a CBA with the International Alliance of Theatrical Stage
Employees, Local 720 ("IATSE") which imposes certain restrictions upon the
employment of entertainment and stage workers for the Project. Tenant agrees
that it shall not employ any entertainment and stage workers for the Project and
Landlord shall employ such entertainment and stage employees, as are determined
to be appropriate by Landlord and Tenant, who shall be assigned to work in the
Premises.
(i) Landlord shall employ such restaurant and entertainment
employees, other than the Excluded Employees, as are determined to be
appropriate by Landlord and Tenant, who shall be assigned to work in the
Premises (the "NITRO GRILL EMPLOYEES"). The Nitro Grill Employees shall be
included in the collective bargaining unit covered by the terms of the CBA with
the Union or with IATSE, as applicable. Tenant shall supervise and direct the
work of the Nitro Grill Employees assigned to work in the Premises. Tenant
acknowledges that it has received and reviewed the CBA with the Union and with
IATSE. In its supervision and direction of the Nitro Grill Employees, Tenant
agrees that it shall honor all terms and conditions of employment specified by
the CBA with the Union and with IATSE, as amended from time to time, and shall
comply with all federal, state and local laws, rules, regulations and
ordinances.
(j) Tenant shall reimburse Landlord on a bi-weekly basis
together with Minimum Rent for all salaries, wages and other amounts paid to, or
payable as a result of the employment of, the Nitro Grill Employees, including,
but not limited to, overtime, social security taxes, workers' compensation and
unemployment insurance, payroll taxes, vacation pay, pension and retirement
benefits, health care, disability insurance, and other fringe benefits, whether
statutory or otherwise, and the cost of uniforms (the "NITRO GRILL EMPLOYEE
EXPENSES"). Landlord shall provide Tenant with a monthly accounting of the Nitro
Grill Employee Expenses, which amounts shall be considered Additional Rent under
this Lease.
(k) Tenant shall indemnify, defend and hold Landlord harmless
for, from and against any loss, cost, damage or expense resulting from (i) any
failure by Tenant to observe the provisions of this SECTION 7.6, including, but
not limited to, the failure by Tenant to honor the terms and conditions of any
CBA or to comply with applicable laws, (ii) any action or failure to act by any
Nitro Grill Employee under the direction and supervision of Tenant, and (iii)
any claims by any Nitro Grill Employee arising within the course and scope of
his/her employment.
7.7 SECURITY. Tenant acknowledges that Landlord's security department
and security officers are not responsible for providing security services for
the Premises and that responsibility to provide security services for the
Premises if Tenant so elects is the obligation of Tenant. In no event shall
Landlord be liable to Tenant or any third-party for the security department's
failure to respond to a request for aid or assistance by Tenant. Notwithstanding
anything to the contrary contained herein, Tenant agrees that Tenant, its agents
and employees including all individuals providing security services, whether
employed directly by Tenant or engaged as Tenant's agent or as an independent
security contractor, shall follow any instructions or directions, written or
oral, received from Landlord's security department or personnel.
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7.8 REGULATORY AUTHORITIES. If Tenant is required to apply to either
the Nevada Gaming Commission or any other agency regulating Landlord's
activities (collectively herein, the "REGULATORY AUTHORITIES") for a finding of
suitability or other approval, Tenant shall promptly do so. If after application
and applicable hearings, Tenant is found unsuitable by any Regulatory Authority,
then Tenant shall immediately undertake corrective action to comply with any
requirement of the Regulatory Authority to be found suitable, including, without
limitation, terminating any objectionable or unsuitable employee, provided,
however, that in the event that the corrective action taken is not satisfactory
to such Regulatory Authority then this Lease shall thereupon immediately cease
and terminate and be of no further force or effect, without penalty or refund of
any key money or other sum. Unless otherwise directed by the Regulatory
Authorities and provided that Tenant is not in default under this Lease at the
time of such termination, Landlord shall reimburse Tenant for the unamortized
portion of any TI Costs paid for by Tenant. In addition Tenant acknowledges that
Landlord will hold gaming and liquor licenses in connection with its operations
at the Project. If the employment or continued employment of any person by
Tenant or continued association with Tenant could have a material adverse effect
on any gaming or liquor license, permit or approval held or sought by Landlord
or any Affiliate of Landlord (as determined by Landlord in good faith), Landlord
shall so notify Tenant and Tenant shall take all necessary action to immediately
eliminate such adverse effect. If such material adverse effect is not eliminated
within twenty (20) days after notice from Landlord, Landlord may terminate this
Lease upon ten (10) days written notice to Tenant. Unless otherwise directed by
the Regulatory Authorities and provided that Tenant is not in default under this
Lease at the time of such termination, Landlord shall reimburse Tenant for the
unamortized portion of any TI Costs paid for by Tenant.
7.9 RESTRICTIVE COVENANT. During the Term of this Lease, Tenant shall
not, directly or indirectly, alone or as a partner, joint venturer member,
consultant, franchisor, franchisee, agent or independent contractor, own or
operate any WCW wrestling themed restaurant or retail store in Xxxxx County,
Nevada. In addition, if this Lease is terminated prior to the expiration of the
Lease Term for any reason other than a breach of the Lease by Landlord or
pursuant to ARTICLE 17 or ARTICLE 18 below, Tenant shall not, directly or
indirectly, alone or as a partner, joint venturer, member, consultant,
franchisor, franchisee, agent or independent contractor, own or operate any WCW
wrestling themed restaurant or retail store that is not open for business at the
time of such termination in Xxxxx County, Nevada for a period of two (2) years
following such termination. Tenant acknowledges that the restrictions contained
in this Section are reasonable in scope and duration and are necessary to
protect Landlord. If any provision of this Section, as applied to any party or
to any circumstance, is adjudged by a court to be invalid or unenforceable, the
same will in no way affect any other circumstance or the validity or
enforceability of the remainder of this Lease. If any such provision, or any
part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision, and/or to delete specific words or phrases, and in its reduced
form, such provision shall then be enforceable and shall be enforced. The
parties agree and acknowledge that the breach of this Section will cause
irreparable damage to Landlord and upon breach of any provision of this
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Section, Landlord shall be entitled to injunctive relief, specific performance
or other equitable relief; provided, however, that the foregoing remedies shall
in no way limit any other remedies which Landlord may have at law or in equity.
7.10 LANDLORD COMPS. Tenant agrees that Landlord may "comp" its
guests, officers, directors or employees or those of its Affiliates at Tenant's
restaurant. Landlord shall be entitled to the following:
(a) Twenty-Seven Thousand Five Hundred Dollars ($27,500) of
complimentary items free of charge during each Lease Year (the "COMP
THRESHOLD"); provided, however, that no more than Twenty-five Hundred Dollars
($2,500) of the total Comp Threshold (the "MONTHLY COMP LIMIT") shall be used by
Landlord during any month. Notwithstanding the preceding sentence, if Landlord
exceeds the Monthly Comp Limit in any month during a Lease Year, and at the end
of such Lease Year the Comp Threshold has not been reached, Tenant shall pay to
Landlord with the annual adjustment to Percentage Rent, the amount that Landlord
paid Tenant for comps under this SECTION 7.10(a) in all months when the Monthly
Comp Limit was exceeded until the Comp Threshold is reached. The Comp Threshold
shall be reduced prorata for any Permitted Closure Period.
(b) After the Comp Threshold has been reached in a given Lease
Year or during any month in which the Monthly Comp Limit has been reached,
Tenant shall xxxx Landlord for food and beverage items provided on a
complimentary basis at an amount equal to eighty-two percent (82%) of the retail
price charged by Tenant for such food and/or beverage items. Payment for food
and beverages provided under this SECTION 7.10(b) shall be made in accordance
with EXHIBIT E.
Gratuities on all complimentary items shall be paid directly by the
guest, and shall not be charged to Landlord, except, however, if such gratuities
are room charges pursuant to SECTION 7.11, such gratuities shall be charged to
the guest or to Landlord, as the case may be. Landlord shall pay the applicable
taxes on all complimentary items provided under this SECTION 7.10. Taxes and
gratuities shall not be applied toward the Comp Threshold or subject to the
eighteen percent (18%) discount. Any charges to Landlord for complimentary items
under this SECTION 7.10 shall be billed by Tenant and paid by Landlord in the
manner described in EXHIBIT E.
Landlord shall either designate patrons who are to receive
complimentary food and/or beverages either by (i) giving Tenant reasonable
advance notice of the patron's visit to the Premises (which notice shall be
given by employees authorized to do so in writing by Landlord and shall set
forth any limitations on any complimentary food and beverage) or (ii) written
notice after the patron's visit, in which event Landlord and Tenant shall make
the appropriate adjustment to any room charge made by such patron or other
adjusting payments.
7.11 ROOM CHARGES. Guests of the Project and properties of one or more
of Landlord's Affiliates shall be entitled to xxxx charges for food and beverage
service and gratuities at Tenant's
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restaurant to their rooms and Tenant, at its expense, shall cause its register
system to network with the computer system for the Project based on
specifications provided by Landlord. Such charges shall be paid by Landlord to
Tenant in the manner described on EXHIBIT E.
7.12 BEVERAGE PROVIDERS. Tenant acknowledges that from time to time
Landlord may agree to utilize certain designated brands of beverage items on a
company-wide basis (e.g., Landlord may contract with a selected manufacturer of
carbonated beverages to utilize such manufacturer's brands). Upon receipt of a
notice specifying any such beverage brand choice, Tenant agrees to honor such
brand choice and use only the selected product.
ARTICLE 8
INSURANCE
8.1 TENANT'S INSURANCE. Tenant agrees, at Tenant's expense, to maintain
the following insurance policies during the entire Lease Term:
(a) A policy of comprehensive public liability and property
damage insurance providing coverage against liability for injury or death to
persons and for property damage occurring in or about the Premises. Such
liability insurance shall be a broad form comprehensive, general liability
policy, including but not limited to contractual liability, in an amount of not
less than Ten Million Dollars ($10,000.000.00). Landlord agrees that Tenant may
satisfy insurance coverage limits over One Million Dollars ($1,000,000.00) by
means of an excess liability policy;
(b) A policy of plate glass insurance covering all plate and
other glass in the Premises;
(c) A policy providing fire and extended coverage, vandalism,
malicious mischief, sprinkler leakage and special extended coverage insurance in
an amount adequate to cover the full cost of replacement of all personal
property, inventory, decorations, trade fixtures, furnishings, equipment and
other contents in the Premises. Such insurance shall be in an amount equal to
the current replacement value of the property required to be insured;
(d) A policy of business interruption insurance; and
(e) A policy of products liability insurance in form
satisfactory to Landlord and in the amount of not less than One Million Dollars
($1,000,000.00).
All such insurance policies shall, to the extent applicable, name Landlord as an
additional insured (as well as such other persons, firms or corporations as
Landlord may designate) or an additional loss payee, and shall be written by one
or more responsible insurance companies licensed to do business in Nevada with a
rating of AVII or better as rated in the most recent edition of Best's
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Insurance Guide (or similar rating service if such guide is no longer
published). Such policies shall also include an endorsement requiring the
company writing such policy to give Landlord at least twenty (20) days written
notice in advance of any cancellation or lapse of such policy or the effective
date of any reduction in the amount of coverage under such policy. All public
liability, property damage, and other casualty insurance policies obtained by
Tenant pursuant to this SECTION 8.1 shall be written as primary insurance and
not contributing with separate coverage which Landlord may carry. The insurance
required by this SECTION 8.1 may be covered by general policies covering all of
Tenant's locations. Prior to the Commencement Date, Tenant shall furnish
Landlord with certificates of insurance showing that insurance meeting the
requirements of this Section has been obtained and fully paid for by Tenant.
Similar certificates of insurance as to renewal policies shall be provided to
Landlord at least fifteen (15) days prior to the expiration of any policy, if
requested. The limits of the public liability insurance required to be
maintained by Tenant under this Lease shall in no way limit or diminish Tenant's
liability under ARTICLE 16 hereof and such limits shall be subject to increase
at any time and from time to time during the Lease Term if Landlord, in the
exercise of reasonable discretion, deems such an increase necessary for
Landlord's adequate protection.
8.2 LANDLORD'S INSURANCE. Landlord shall procure and maintain in full
force and effect, public liability and property damage insurance in types of
coverages and amounts as are customarily carried by operators of similar hotel
and casino facilities in Xxxxx County, Nevada.
8.3 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any
and all rights of recovery against the other or against the officers, employees,
agents and representatives of the other, on account of loss or damage occasioned
to such waiving party, or its property or any property of others under its
control to the extent that such loss or damage arises from any risk generally
covered by fire and extended coverage insurance, whether or not such an
insurance policy is maintained or there are insurance proceeds sufficient to
cover the loss. Landlord and Tenant shall each, upon obtaining the respective
policies of insurance required under this Lease, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is contained
in this Lease and obtain from the respective carriers an endorsement waiving any
right of subrogation in favor of the insurer.
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ARTICLE 9
TAXES
9.1 ADDITIONAL TAXES. In addition to all other amounts which Tenant is
required to pay under this Lease, Tenant shall pay before delinquency:
(a) All taxes and assessments levied against fixtures,
equipment and personal property of Tenant installed or located in the Premises;
and
(b) Any and all taxes, assessments or other charges of any
kind imposed by any federal, state, county, municipal or other governmental body
or agency and payable by Landlord or Tenant (excluding income, franchise,
inheritance or estate taxes), whether or not customary or within the
contemplation of the parties, with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises.
Tenant, at its expense, shall have the right, in Landlord's name if appropriate,
to contest or review by legal proceedings, or in such other manner as it may
deem suitable (which, if instituted, Tenant shall conduct at its own expense,
and free of any expense imposed on Landlord) any tax, assessment or other
governmental imposition or charge described in this SECTION 9.1. Tenant may
defer payment of a contested item, unless such deferment would result in the
enforcement of a lien on the Premises or the Project or the imposition of a
criminal penalty on Landlord, in which event, Tenant shall promptly pay such
contested item or items or cause them to be paid under protest if at any time
the Premises or Project or any part thereof shall be in danger of being
forfeited or otherwise lost, or if Landlord shall be subjected to criminal
liability for such non-payment. The legal proceedings herein referred to shall
include appropriate proceedings to review tax assessments and appeals from
orders therein and appeals from any judgments, decrees, or orders. If there
shall be any refund with respect to any contested item based on a payment by
Tenant, Tenant shall be entitled to the entire amount thereof. Landlord shall
promptly cooperate with Tenant, execute such documents and take such actions as
may be reasonably necessary, (but without the imposition of cost or expense on
Landlord) to enable Tenant to properly contest any matter contemplated in this
SECTION 9.1.
9.2 SALES TAX. Tenant agrees to pay to Landlord a sum equal to the
amount which Landlord is required to pay or collect by reason of any privilege
tax, sales tax, gross proceeds tax, rent tax, or like tax levied, assessed or
imposed by any federal, state, county or municipal governmental authority, or
any subdivision thereof, upon any rent or other charges required to be paid
under this Lease. Such sum shall be paid simultaneously with the rental payment
or other charge upon which such sum is based.
9.3 CET. Tenant agrees that it will collect any applicable CET
associated with the sale of food, beverage or merchandise from the Premises and
will pay the same to the taxing authority on a timely basis, or if Tenant is not
permitted to pay the same directly, shall remit the CET due
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to Landlord no later than the 10th day of the month following the month in which
the taxable sales occurred. Tenant shall make all documents containing
information relative TO the computation of the CET available for inspection upon
prior written notice by representatives of Landlord and the Nevada Tax
Commission or Nevada Gaming Commission. This obligation shall continue beyond
the Lease Term as to CET assessed during the time Tenant operated the Premises.
Tenant shall be liable for any and all CET, interest and penalties found to be
payable in connection with the sale of food, beverage or merchandise from the
Premises as a result of understated taxable revenues, insufficiency of records
or untimely payments unless Tenant is not permitted to pay the CET directly to
the taxing authority, then if Tenant has timely remitted the payment to Landlord
as required in this Section, Tenant shall not be liable for the untimely payment
of the CET to the taxing authority.
ARTICLE 10
SERVICES
10.1 SERVICES PROVIDED. Provided Tenant is not in default under this
Lease, Landlord shall provide Tenant with the following services (collectively,
the "SERVICES") DURING the Lease Term:
(a) Heating and air conditioning during the customary periods
of the year therefor during the hours of operation required hereunder when and
to the same extent as furnished to other comparable portions of the Project.
Tenant acknowledges that Tenant shall have access to the controls for heating
and air conditioning located within the Premises, but might not have access to
the controls for heating or air conditioning located outside the Premises and
shall not attempt to make any changes to such controls located outside the
Premises;
(b) Customary gas, water and sewer service;
(c) Electricity in sufficient amounts to provide ordinary
lighting and to operate the restaurant equipment to be installed in the Premises
and approved by Landlord;
(d) One (1) telephone and local telephone service. Long
distance telephone charges shall be Tenant's responsibility; and
(e) Garbage service at the receptacles designated by Landlord.
Landlord's obligation to furnish services shall be conditioned upon the
availability of adequate energy sources. Landlord shall confer with Tenant and
have the right to reduce such services as required by any mandatory or voluntary
fuel or energy conservation program. Landlord may, from time to time, prescribe
reasonable rules and regulations for implementation of this Section.
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10.2 SERVICE CHARGE. As compensation for the Services attributable to
the Premises, Tenant agrees to pay Landlord Sixty-Five Thousand Dollars
($65,000.00) per Lease Year (the "SERVICE CHARGE") payable on a monthly basis
together with Minimum Rent, prorated for any partial Lease Year. The Service
Charge is based in part on the utility rates set forth on EXHIBIT G ("UTILITY
RATES"). If after the first Lease Year the Utility Rates increase or decrease,
Landlord may reevaluate the Service Charge and shall notify Tenant in writing of
any change (together with back-up information showing the basis for the revised
Service Charge), which change shall be effective thirty (30) days after receipt
of any such notice. Except as provided in the preceding sentence, the Service
Charge shall be paid regardless of the actual cost of providing such Services.
10.3 SERVICE INTERRUPTION. Landlord shall not be liable in damages for
any failure or interruption of any utility service to the Premises, except to
the extent that any failure or interruption arises from the gross negligence or
willful misconduct of Landlord. No failure or interruption of utility service
for any reason shall entitle Tenant to terminate this Lease; provided, however,
that if the failure or interruption of any Service to be repaired or maintained
by Landlord and not the service provider continues for a period of forty-eight
(48) hours or more, Tenant shall be entitled to an equitable abatement of
Minimum Rent. Landlord shall not be obligated to provide any service or
maintenance or to make any repairs pursuant to this Lease when such service,
maintenance or repair is made necessary because of any wrongful act or misuse of
any utility service by Tenant, Tenant's agents, employees, servants,
contractors, subtenants or licensees. Landlord reserves the right to stop any
Service when Landlord deems such stoppage necessary, whether by reason of
accident or emergency, or for repairs or improvements or otherwise, provided,
that any such period of stoppage shall be only so long as is reasonably required
to effect any necessary repairs or maintenance. Landlord shall not be obligated
to inspect the Premises and shall not be obligated to make any repairs or
perform any maintenance hereunder unless first notified of the need thereof in
writing or, in an emergency, verbally, followed by a written confirmation, by
Tenant. Upon receipt of any such notice, Landlord shall commence any required
repair work of an emergency nature as soon as possible and work as expeditiously
as possible to complete such work. All other work of a non-emergency nature
shall be performed as promptly as possible. If Landlord shall fail to commence
emergency repairs or maintenance to be performed by Landlord and not the service
provider within twenty-four (24) hours after said notice, or non-emergency
repairs or maintenance within five (5) days after said notice, then Tenant shall
be entitled to an equitable abatement of Minimum Rent for so long as such
failure continues and an extension of the Lease Term for a period equal to the
period of rent abatement.
ARTICLE 11
REPAIRS AND MAINTENANCE
11.1 REPAIRS AND MAINTENANCE BY LANDLORD. Landlord agrees, at its sole
expense, to keep in good structural order, condition and repair all common area
surrounding the Premises and
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the exterior walls, floor (but not floor coverings) and roof of the Premises,
except for reasonable wear and tear and except for any damage thereto caused by
any act or negligence of Tenant or its agents, employees, servants, contractors,
subtenants or licensees. Landlord agrees to maintain the Project (other than
those portions of the Premises for which Tenant is responsible and portions of
the Project which are maintained by other tenants or third parties) as a first
class hotel and casino and keep the Project in compliance with all applicable
building codes and regulations to the extent necessary to insure Tenant's safe
and continued use of the Premises. Landlord shall make any of the foregoing
repairs as expeditiously as possible after Landlord has received written notice
from Tenant that such repairs need to be made and within thirty (30) days of
receipt of such notice unless such repairs cannot, in the exercise of reasonable
diligence, be completed in thirty (30) days and diligently pursue the same to
completion. All other items of maintenance and repair for the Premises are the
sole responsibility and expense of Tenant.
11.2 REPAIRS AND MAINTENANCE BY TENANT. Tenant agrees, at Tenant's
expense, to keep the Premises and any special equipment, fixtures or facilities
(including, but not limited to grease traps located outside the Premises) in a
clean, safe and sanitary condition. Tenant agrees to immediately replace broken
glass in exterior and interior windows and doors with glass of the same quality,
and, on Landlord's request, to remove any encroachments maintained or authorized
by Tenant on any public place without Landlord's prior written consent. Tenant
shall not overload any floor or facility, throw any foreign substances in
plumbing fixtures or use the plumbing fixtures for any purpose other than that
for which constructed. Tenant also agrees to keep the Premises (including any
exterior entrance, storefronts and the interior of exterior walls), all
partitions, doors, fixtures and equipment (including lighting, heating and
plumbing fixtures and any separate air conditioning system) in good order,
condition and repair and in compliance with all applicable laws, rules and
regulations. The cost of maintenance and repair of that part of any wall shared
with other tenants of the Project shall be borne equally by all tenants sharing
such wall; provided, however, Tenant shall be solely responsible for repairs to
such shared walls necessitated by the negligence or intentional acts or
omissions of Tenant its agents, employees or licensees. If Tenant refuses or
neglects to commence repairs within ten (10) days after receipt of written
demand from Landlord, or adequately to complete such repairs within a reasonable
time not to exceed thirty (30) days after such demand, Landlord, in addition to
any other rights and remedies contained or available to Landlord at law or in
equity, may enter the Premises and make the repairs, at Tenant's expense and
without liability to Tenant for any loss or damages which may accrue to Tenant's
stock or business by reason of such entry and repair work.
ARTICLE 12
ALTERATIONS AND IMPROVEMENTS
12.1 ALTERATIONS AND IMPROVEMENTS. Tenant may not make any alterations,
improvements, renovations, additions, or utility installations ("IMPROVEMENTS")
in, on or to the Premises, the exterior of the Premises, the exterior walls, the
roof, the storefront, or any
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structural, mechanical or electrical component without Landlord's prior written
consent. Any Improvements approved by Landlord shall be at the sole cost and
expense of Tenant, and shall be made promptly and in good and workmanlike manner
and in compliance with all applicable insurance requirements and with all
applicable permits, authorizations, building regulations, zoning laws and all
other governmental rules, regulations, ordinances, statutes and laws, now or
hereafter in effect pertaining to the Premises or Tenant's use thereof. Any
Improvements made by Tenant shall at Landlord's option become the property of
Landlord upon the expiration or sooner termination of this Lease. However, as a
condition to granting its consent to Tenant to make any Improvement, Landlord
shall have the right to require Tenant to remove such Improvements, at Tenant's
sole cost and expense, upon the termination of this Lease and to surrender the
Premises in the same condition as it was prior to the making of any or all such
Improvements, ordinary wear and tear excepted.
12.2 TRADE FIXTURES. Tenant may bring trade fixtures into the Premises
and may remove any and all restaurant equipment, trade fixtures, signs and
graphic displays (but not flooring) and other personal property of Tenant and
supplied by and brought into the Premises by Tenant, whether or not affixed to
the Premises (the "TENANT'S FIXTURES"), at any time Tenant is not in default
under this Lease, subject to any applicable grace or cure period. Tenant agrees
to repair any damage to the Premises caused by such removal. All other fixtures
which may be installed by Landlord or Tenant shall remain upon the Premises and
shall become the property of Landlord during the Lease Term and after the
earlier termination or expiration of the Lease Term, unless Landlord requests
removal of a particular item by Tenant, in which case Tenant shall remove the
item and restore the Premises to the condition they were in prior to
installation of the particular item. Upon reasonable request of Tenant, Landlord
agrees to execute and deliver any documents necessary or advisable, for
inclusion in Tenant's records or otherwise, to evidence Landlord's consent to
removal from the Premises of any personal property or fixtures leased to or to
be leased to Tenant by any third party.
12.3 LIENS. Tenant agrees to keep the Premises and the Property free
from any liens arising out of any work performed on the Premises by Tenant or
materials furnished to the Premises by Tenant and from any claim, liens, tax
lien or levy, attachment, garnishment or encumbrance arising directly or
indirectly from any obligation, action or inaction of Tenant whatsoever. Tenant
shall have twenty (20) days after notice of the filing for record of any lien or
tax lien, within which to obtain the release and discharge thereof or to bond
over the lien at Tenant's sole cost and expense. Landlord may, at any time and
in accordance with applicable law, post notices of non-responsibility on the
Premises and Tenant shall give Landlord at least ten (10) days prior written
notice of the commencement of any work on the Premises.
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ARTICLE 13
ADVERTISING
13.1 ADVERTISING.
(a) Tenant may not install, change or modify its signs at any
time without Landlord's prior written consent, which consent shall be given or
withheld in the sole discretion of Landlord. Tenant agrees to properly maintain
all approved signs. Upon expiration of the Lease, Tenant agrees promptly to
remove all signs and other advertising media placed in and around the Premises
by Tenant. Tenant shall repair all damage caused to the Project or Premises by
such removal, including proper "capping off" of electrical wiring. Tenant agrees
not to use any advertising medium, such as flashing lights, searchlights,
loudspeakers, phonographs, radios, or televisions, which can be heard or
experienced outside the Premises. Tenant agrees not to display, paint or place
any handbills, bumper stickers, or other advertising materials on any vehicle in
the parking area of the Project, or to distribute any handbills or other
advertising materials within or around the Project.
(b) Landlord shall provide in-room advertising in the hotel
directory on the same basis as such in-room advertising is provided to other
tenants, and Landlord shall permit Tenant to place signs within the hotel
provided that the location, type and content of the signs are approved in
advance by Landlord in its sole discretion. Without limiting the foregoing,
Tenant shall have the right to use all duretrans signs currently used for "Wild
Bill's" restaurant. All signs may be removed or relocated at any time at
Landlord's direction.
(c) Tenant will be responsible for the costs associated with
local, national or regional advertising of the WCW Nitro Grill/WCW Nitro Grill
Las Vegas. Tenant shall regularly advertise WCW Nitro Grill/WCW Nitro Grill Las
Vegas and any special events held at WCW Nitro Grill/WCW Nitro Grill Las Vegas,
including, but not limited to, advertising on the cable network.
13.2 CELEBRITY APPEARANCES. WCW Wrestlers shall make regular
appearances at the Premises, which appearances shall occur at least once per
week for three (3) weeks each month (and the WCW License Agreement shall provide
for such appearances).
ARTICLE 14
RULES AND REGULATIONS
14.1 RULES AND REGULATIONS. Landlord may promulgate such reasonable
rules and regulations relating to the use of the Premises and the Project as
Landlord may deem appropriate and for the best interests of the Project,
provided such rules and regulations do not expressly
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conflict with Tenant's rights under this Lease. Such rules and regulations shall
be binding upon Tenant upon delivery of a copy thereof to Tenant. The rules and
regulations may be amended by Landlord from time to time, subject to the
standards set forth above, with advance notice, and all such amendments shall be
effective upon delivery of a copy to Tenant.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
15.1 ASSIGNMENT AND SUBLETTING. Tenant may assign its interest in this
Lease or sublet all or any portion of the Premises (a "TRANSFER") only with the
prior written consent of Landlord, which consent may be withheld in Landlord's
sole and absolute discretion, except as specifically provided for herein.
Further, Tenant acknowledges that Landlord's decision to lease the Premises to
Tenant is based, in part, on a review of the individuals and entities comprising
Tenant (and the individuals comprising any entities having an ownership interest
in Tenant), all of which are listed on EXHIBIT D. Therefore, if Tenant is a
corporation which is not publicly traded or a partnership, limited liability
company or other entity, the issuance of any additional stock and/or the
transfer, assignment or hypothecation of any stock or interest in such
corporation, partnership, limited liability company or other entity, directly or
indirectly, to any individual or entity other than those listed on EXHIBIT D,
shall be deemed a Transfer within the meaning of this ARTICLE 15. Any attempted
Transfer without Landlord's prior written consent in accordance with the
applicable standards set forth herein shall be void, shall confer no rights upon
any third person and at Landlord's option shall constitute a material, incurable
event of default under this Lease. Tenant shall provide Landlord with any and
all information requested by Landlord in connection with a proposed Transfer.
Each Transfer to which Landlord has consented shall be evidenced by an
instrument in writing in form satisfactory to Landlord and shall be executed by
the assignor or sublessor and by the assignee or subtenant (each, a
"TRANSFEREE"). Each Transferee that is an assignee or sublessee of Tenant's
interest as lessee under the Lease shall also agree in writing to assume, to be
bound by, and to perform the terms, covenants, and conditions of this Lease to
be done, kept, and performed by Tenant. One executed copy of such written
instrument shall be delivered to Landlord. No such Transfer shall release Tenant
from Tenant's obligations to Landlord under this Lease. Landlord's consent to a
Transfer on one occasion shall not be deemed a consent to any subsequent
Transfer.
15.2 TRANSFER PREMIUM. If Landlord consents to a Transfer in which the
Transferee is an assignee or sublessee of Tenant's interest as lessee under the
Lease, as a condition thereto which the parties hereby agree is reasonable,
Tenant shall pay to Landlord any "TRANSFER PREMIUM," as that term is defined in
this SECTION 15.2, received by Tenant from such Transferee. "TRANSFER PREMIUM"
shall mean all rent, additional rent or other consideration payable by such
Transferee in excess of the Minimum Rent, Percentage Rent and Additional Rent
payable by Tenant under this Lease on a per rentable square foot basis if less
than all of the Premises is transferred. "TRANSFER PREMIUM" shall also include,
but not be limited to, any payment in excess
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of fair market value for services rendered by Tenant to the Transferee or for
assets, fixtures, inventory, equipment, or furniture transferred by Tenant to
the Transferee in connection with such Transfer.
15.3 LANDLORD'S OPTION AS TO SUBJECT SPACE. Notwithstanding anything to
the contrary contained in this ARTICLE 15, Landlord shall have the option, by
giving written notice to Tenant within thirty (30) days after receipt of any
request for approval of a Transfer in which the Transferee is an assignee or
sublessee of Tenant's interest as lessee under the Lease, to (i) recapture the
subject space, or (ii) take an assignment or sublease of the subject space from
Tenant. Such recapture, or sublease or assignment shall cancel and terminate
this Lease, or create a sublease or assignment, as the case may be, with respect
to the subject space as of the effective date of the proposed Transfer until the
last day of the term of the proposed Transfer. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Premises, the rent reserved herein shall be prorated on the basis of the number
of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, and this Lease as so amended
shall continue thereafter in full force and effect, and upon request of either
party, the parties shall execute written confirmation of the same.
15.4 CONCESSIONAIRES. Tenant agrees not to permit any business to be
operated in or from the Premises by any licensee or other concessionaire without
the prior written consent of Landlord, which consent may be withheld in
Landlord's sole and absolute discretion.
ARTICLE 16
INDEMNITY
16.1 INDEMNIFICATION. Landlord and its agents, employees, officers, and
directors shall not be responsible or liable for, and Tenant agrees to
indemnify, defend and hold harmless Landlord and its agents, employees,
officers, and directors for, from and against, all claims, damages, expenses
(including reasonable attorneys' fees), liabilities and judgments arising from
(i) any injury to persons, loss of life or damage to property occurring within,
on or about the Premises, (ii) the use, non-use, condition or occupation of the
Premises by Tenant or its employees, agents or invitees or (iii) the negligence
or willful misconduct of Tenant or its employees, agents or invitees; provided,
however, that with respect to the foregoing clauses (i) and (ii) Tenant shall
not be obligated to indemnify, defend or hold harmless Landlord to the extent
that any claim, damage, expense, liability or judgment arises from the gross
negligence or willful misconduct of Landlord, or Landlord's breach of this
Lease. The provisions of this Section shall survive the expiration or sooner
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination.
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ARTICLE 17
EMINENT DOMAIN
17.1 ENTIRE OR SUBSTANTIAL TAKING - If title to all or a substantial
portion of the Premises is taken for any public or quasi-public use under any
statute or by right of eminent domain, or by purchase in lieu of condemnation,
so that a reasonable amount of reconstruction of the Premises will not result in
the Premises being reasonably suited for Tenant's continued occupancy for the
uses and purposes for which the Premises are leased, this Lease shall terminate
as of the date that possession of said Premises, or part thereof, is taken.
17.2 PARTIAL TAKING. Except as provided in SECTION 17.3, if any part of
the Premises are taken and the remaining part (after reconstruction of the then
existing Project) is suitable, as determined by Tenant in its reasonable
discretion, for Tenant's continued occupancy for the purposes and uses for which
the Premises are leased, this Lease shall terminate as to the part so taken as
of the date that possession of such part of the Premises is taken, and the
Minimum Rent shall be equitably reduced. Landlord shall make such repairs and
alterations to the Premises as may be reasonably necessary to restore the part
not taken to useful condition. A just and proportionate part of the Minimum Rent
shall be abated during such restoration if there is a material interference with
Tenant's business.
17.3 ELECTION TO TERMINATE. If more than thirty-three percent (33%)
of the Floor Area of either the Project or the Premises is taken, either
Landlord, or in the case of the Premises only, Tenant may terminate this Lease
upon sixty (60) days' notice to the other party without regard to the provisions
of SECTION 17.2.
17.4 DISPOSITION OF PROCEEDS. All compensation awarded or paid upon a
total or partial taking of the fee of the Premises shall belong to Landlord,
whether such compensation is awarded or paid as compensation for diminution in
value of the leasehold or the fee. Landlord shall not be entitled to any
separate award made to Tenant for loss of business, depreciation to, and cost of
removal of stock and fixtures so long as such award does not diminish the
compensation paid to Landlord.
ARTICLE 18
DAMAGE OR DESTRUCTION
18.1 DAMAGE OR DESTRUCTION: LANDLORD TO REBUILD. If the Premises are
partially or totally destroyed by fire or other casualty insurable under
Landlord's fire and extended coverage insurance so as to become partially or
totally untenantable, Landlord agrees to rebuild and repair the Premises as
provided in SECTION 18.3, unless Landlord elects not to rebuild as provided in
SECTION 18.2.
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18.2 OPTION TO TERMINATE. If it so happens that:
(a) Thirty-three percent (33%) or more of either the Premises
or the Project is destroyed or damaged by fire or other casualty insurable under
Landlord's fire and extended coverage;
(b) Either the Premises or the Project is destroyed to the
extent of at least thirty-three percent (33%) of the replacement cost thereof;
(c) Either the Premises or the Project is partially or totally
destroyed by a cause or casualty other than those covered by Landlord's fire and
extended coverage insurance; or
(d) Either the Premises or the Project is declared unsafe or
unfit for occupancy by any governmental authority and repairs are thereby
required;
then, in any such event, Landlord may, if Landlord elects, rebuild or put the
Premises in good condition and fit for occupancy within a reasonable time after
such destruction or damage, or Landlord may give notice in writing to Tenant not
later than thirty (30) days after any such damage or destruction terminating
this Lease. If Landlord elects to rebuild or put the Premises in good condition
and fit for occupancy, then Tenant shall be entitled to an equitable abatement
of rent for the period of time that Tenant is unable to operate in the Premises
as a result of such rebuilding, and the Lease Term shall be extended for an
amount of time equal to such period of rebuilding.
18.3 PORTIONS TO BE REBUILT BY LANDLORD AND TENANT. Landlord's
obligation to rebuild (should Landlord elect or be obligated to repair or
rebuild) shall be limited to the Premises, as originally provided to Tenant, and
Tenant, at Tenant's expense, shall replace and fully repair all of Tenant's
exterior signs, trade fixtures, equipment, display cases and other installations
originally installed by Tenant. All insurance proceeds payable under Landlord's
fire and extended coverage risk insurance shall be payable solely to Landlord,
and Tenant shall have no interest in such proceeds.
18.4 NON-LIABILITY. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the whole or any part of the
Premises, the Project, Tenant's personal property or any inconvenience or
annoyance caused by such damage, repair, or reconstruction. Notwithstanding the
destruction of or injury to the Premises or any part of the Premises, whether or
not the same are rendered untenantable or unfit for occupancy, Tenant shall have
no right to quit and surrender possession and shall have no right to any
abatement of rent, except as specifically provided in SECTION 18.5.
18.5 OPERATIONS DURING RECONSTRUCTION PERIOD. During any period of
repair and reconstruction, the Minimum Rent provided in SECTION 4.1 shall be
abated proportionately with the degree to which Tenant's use of the Premises is
impaired, such abatement to commence with
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the date of damage or destruction and to continue throughout the period of
repair. Tenant agrees to continue the operation of Tenant's business on the
Premises during any such period to the extent reasonably practicable from the
standpoint of prudent business management. The obligation of Tenant to pay
Percentage Rent and Additional Rent shall remain in full force and effect under
all circumstances.
ARTICLE 19
ENTRY BY LANDLORD
19.1 ACCESS TO PREMISES. Landlord and Landlord's employees and agents
may enter the Premises at all reasonable hours without diminution or abatement
of rent and without liability to Tenant (i) to inspect the Premises; (ii) during
periods of time when Tenant is not open for business to the public (whenever
possible) to make repairs, additions or alterations to the Premises, the
Project, or any property owned or controlled by Landlord (and for such purposes
Landlord may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always providing the
entrance to the Premises shall not be blocked thereby); (iii) to serve or post
any notice required or permitted under the provisions of this Lease or by law;
(iv) to cure any default by Tenant or to exercise any remedy of Landlord for a
default; and (v) for any other lawful purpose. For the purpose of providing
access as required by this Section, Landlord shall have a key to unlock all
doors on the Premises. If an excavation is made or is authorized to be made upon
land adjacent to the Premises or the Project, Tenant agrees to permit all
necessary persons to enter the Premises for the purpose of doing such work as
Landlord deems necessary to preserve walls from injury or damage. Nothing
contained herein shall impose or be deemed to impose any duty on the part of
Landlord to do any work or repair, maintenance, reconstruction or restoration,
which under any provision of this Lease is required to be done by Tenant; and
the performance thereof by Landlord shall not constitute a waiver of Tenant's
default in failing to do the same.
19.2 LEASING ACTIVITIES. Landlord, and/or its authorized agents and
representatives, shall be entitled to enter the Premises at all reasonable times
for the purpose of exhibiting the same to prospective purchasers and, during the
last six (6) months of the Term of this Lease, Landlord shall be entitled to
exhibit the Premises for lease.
ARTICLE 20
ABANDONMENT
20.1 ABANDONMENT. Tenant shall not vacate or abandon the Premises at
any time during the Lease Term. If Tenant violates this prohibition or is
dispossessed of the Premises involuntarily, by operation of law or otherwise, in
addition to all other remedies available to
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Landlord pursuant to this Lease or at law or in equity, any personal property
belonging to Tenant and left on the Premises shall be deemed to be abandoned, at
Landlord's option, or Landlord may store such property in Tenant's name and at
Tenant's expense, without notice to Tenant.
ARTICLE 21
EVENTS OF DEFAULT BY TENANT
21.1 EVENT OF DEFAULT. The following shall constitute events of
default by Tenant under this Lease:
(a) If Tenant fails to pay any rent (including Percentage Rent
and Additional Rent) or any other sums payable pursuant to this Lease on the
date due, whether or not the same shall have been demanded, and such failure
continues for a period of five (5) days after Tenant has received written notice
thereof, provided that if Tenant defaults in rent payment two (2) times in any
calendar year, no five (5) day cure period shall apply to any subsequent rent
payment default in that year.
(b) Any assignment of this Lease, sublease of all or any
portion of the Premises or transfer of any interest in Tenant other than as
permitted under or in compliance with ARTICLE 15 of this Lease.
(c) If Tenant fails to observe or perform any of the other
covenants or agreements contained in this Lease to be observed or performed by
Tenant; except that if such failure is of a type that can be cured or corrected
by Tenant, then such failure shall not be a default unless such failure
continues for thirty (30) days after written notice of breach is given by
Landlord to Tenant; and further except that if such failure is of such a
character as to require more than thirty (30) days to correct, Tenant shall not
be in default if Tenant commences action to correct such failure within the
30-day period and thereafter, using reasonable diligence, cures such failure;
(d) If Tenant shall become bankrupt, go into receivership, or
make an assignment for the benefit of creditors, or take or have taken against
Tenant any proceedings of any kind under any provision of any federal or state
bankruptcy law, provided, however, that in the case of any involuntary
proceeding against Tenant, if the same is dismissed within sixty (60) days of
filing then such involuntary proceeding shall not be an event of default; or
(e) If Tenant shall abandon the Premises, with Tenant's
absence from the Premises for a period of ten (10) consecutive days to be
conclusive evidence that the Premises have been abandoned.
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ARTICLE 22
REMEDIES OF LANDLORD
22.1 REMEDIES. On any event of default, Landlord, at Landlord's
option, without notice or demand, may do any one or more of the following, in
any order, successively or concurrently, except that in every case, Landlord, in
good faith, shall take all reasonable efforts to mitigate damages:
(a) Landlord may take any action deemed necessary by Landlord,
in Landlord's sole and absolute discretion, to cure the default. Tenant shall be
liable to Landlord for all of Landlord's reasonable expenses so incurred, as
Additional Rent, payable on demand by Landlord to Tenant.
(b) Landlord may terminate this Lease by written notice to
Tenant of Landlord's election to do so. Upon Landlord's notice of termination,
Landlord may recover from Tenant:
(i) The worth at the time of award of the unpaid
Minimum Rent, Percentage Rent, and Additional Rent which had
been earned at the time of termination;
(ii) The worth at the time of award of the amount by
which the unpaid Minimum Rent, Percentage Rent, and Additional
Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided;
(iii) The worth at the time of award of the amount by
which the unpaid Minimum Rent, Percentage Rent, and Additional
Rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided; and
(iv) Any other amount reasonably necessary to
compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under the
Lease.
The "worth at the time of the award" of the amounts referred in SUBSECTIONS (i)
and (ii) above shall be computed by allowing interest at the lesser of the rate
of 12% per annum or the maximum rate of interest allowed by law. The "worth at
the time of the award" of the amount referred to in SUBSECTION (iii) above shall
be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1 percent.
(c) Landlord may without declaring the Lease Term ended,
reenter the Premises and occupy the same, or any portion thereof, for and on
account of Tenant as hereinafter provided, applying any moneys received first to
the payment of such expenses as Landlord may have paid,
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assumed or incurred in recovering possession of the Premises, including costs,
expenses, attorneys' fees, and expenditures for placing the same in good order
and condition, or preparing or altering the same for reletting, and all other
expenses, commissions and charges paid, assumed or incurred by Landlord in or in
connection with reletting the Premises and then to the fulfillment of the
covenants of Tenant. Any such reletting as provided for herein may be for the
remainder of the Lease Term or for a longer or shorter period. Such reletting
shall be for such rent and on such other terms and conditions as Landlord, in
its sole discretion, deems appropriate. Tenant shall have no right or authority
whatsoever to collect any rent from such tenants, subtenants or any licensees or
concessionaires on the Premises. In any case, and whether or not the Premises or
any part thereof be relet, Tenant, until the end of what would have been the
Lease Term in the absence of such default, shall be liable to Landlord and shall
pay to Landlord monthly an amount equal to the average amount due as rent
hereunder, less the net proceeds for said month, if any, of any reletting
effected for the account of Tenant pursuant to the provisions of this
subparagraph, after deducting all of Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorneys' fees, reasonable expenses of
employees, alteration costs (except costs limited in this Section), and expenses
of preparation for such reletting (all said costs are cumulative and shall be
applied against proceeds of reletting until paid in full). Landlord reserves the
right to bring such actions for the recovery of any deficits remaining unpaid by
Tenant to Landlord hereunder as Landlord may deem advisable from time to time
without being obligated to await the end of the Lease Term for a final
determination of Tenant's account; and the commencement or maintenance of one or
more actions by Landlord in this connection shall not bar Landlord from bringing
subsequent actions for further accruals pursuant to the provisions of this
Section.
(d) Landlord may pursue all rights and remedies of Landlord,
which shall in any event be cumulative and not alternative, and shall be in
addition to any and all rights provided at law or in equity.
For the purposes of determining the Percentage Rent which would be payable to
Landlord by Tenant hereunder subsequent to Tenant's default, the Percentage Rent
for each month of the unexpired term hereof shall be deemed to be an amount
equal to the average of the Percentage Rent paid or payable by Tenant to
Landlord hereunder annually during the three (3) years immediately preceding the
date of default, or such lesser period of time as has occurred since the
Commencement Date.
22.2 LATE CHARGE. If any installment of rent or any other sum payable
by Tenant hereunder is not received by Landlord within five (5) days of the date
when due, a late charge of three percent (3%) of such overdue installment or
other payment shall be immediately and automatically payable by Tenant to
Landlord, without the necessity of delivery of any notice; provided, however,
that Landlord shall give Tenant notice of non-payment and five (5) days from
receipt of such notice to cure such non-payment twice in any twelve (12) month
period before assessing such late fee.
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ARTICLE 23
ESTOPPEL CERTIFICATES AND SUBORDINATION
23.1 ESTOPPEL CERTIFICATES. Tenant agrees at any time and from time to
time upon not less than ten (10) business days' prior request by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and effect as modified and
stating the modifications), stating the dates to which the Minimum Rent and
other charges have been paid in advance, if any, and confirming Tenant's
acceptance of the Premises, the commencement of the Lease Term, the rent
provided under the Lease, and such other matters as Landlord may request, it
being intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser, mortgagee, beneficiary under a deed of
trust, or assignee of any mortgagee of the Premises or the Project.
23.2 SUBORDINATION. Tenant agrees upon request of Landlord to
subordinate this Lease and its rights hereunder to the lien of any mortgage,
deed of trust or other encumbrance, together with any renewals, extensions or
replacements thereof, now or hereafter placed, charged or enforced against the
Premises, or any portion thereof, or any property of which the Premises is a
part, provided, however, that any such subordination instrument shall contain
reasonable non-disturbance and attornment provisions in favor of Tenant and
binding on such lender, and to execute and deliver at any time, and from time to
time, upon demand by Landlord, such documents as may be required to effectuate
such subordination.
23.3 PRIORITY OPTION. In the event that the mortgagee or beneficiary
of any such mortgage or deed of trust elects to have this Lease a prior lien to
its mortgage or deed of trust, then and in such event, upon such mortgagee's or
beneficiary's giving written notice to Tenant to that effect, this Lease shall
be deemed prior in lien to such mortgage or deed of trust, whether this Lease is
dated prior to or subsequent to the date of recordation of such mortgage or deed
of trust.
23.4 ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of the Premises or in the event of exercise of the power of
sale under any deed of trust made by Landlord covering the Premises, attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
Landlord under this Lease, provided, however, that such purchaser shall also
agree to grant Tenant reasonable and customary non-disturbance and mutual
attornment rights.
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ARTICLE 24
SALE OF PREMISES
24.1 SALE OF PREMISES BY LANDLORD. Landlord may at any time assign or
transfer its interest as Landlord in and to this Lease, or any part thereof, and
may at any time sell or transfer its interest in the fee to the Premises, or its
interest in and to the whole or any portion of the Premises. In the event of any
sale or exchange of the Premises by Landlord and the assignment by Landlord of
this Lease and execution by the new owner of an acceptance and assumption
agreement agreeing to accept the assignment and assume all of Landlord's
obligations hereunder, Landlord shall be and is hereby entirely released of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease occurring after the consummation of such sale or
exchange and assignment.
ARTICLE 25
HOLDING OVER
25.1 HOLDING OVER. If Tenant should remain in possession of the
Premises after the expiration of the Lease Term with the consent of Landlord and
without executing a new lease, then such holding over shall be construed as a
tenancy from month-to-month, subject to all conditions, provisions and
obligations of this Lease, insofar as the same are applicable to a
month-to-month tenancy, except that Minimum Rent shall increase by fifty percent
(50%). Tenant shall continue in possession until such tenancy is terminated by
either Landlord or Tenant giving written notice of termination to the other
party at least thirty (30) days prior to the effective date of termination.
ARTICLE 26
SURRENDER OF PREMISES
26.1 SURRENDER. On the last day or sooner termination of the Lease
Term, Tenant agrees to quit and surrender the Premises, broom clean, in good
condition and repair (reasonable wear and tear and damage by acts of God or fire
excepted) together with all alterations, additions and improvements (unless
notified otherwise by Landlord) which may have been made in, to or on the
Premises, except trade fixtures installed at the expense of Tenant. Tenant, on
or before the end of the Lease Term, shall remove all of Tenant's property from
the Premises, and all property not removed shall be deemed abandoned by Tenant.
If the Premises are not surrendered at the end of the Lease Term, Tenant shall
indemnify Landlord against loss or liability resulting from delay by Tenant in
so surrendering the Premises, including, without limitation, any claim made
against Landlord by any succeeding tenant based on such delay.
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26.2 MERGER UPON SURRENDER. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation of this Lease, shall not automatically
work a merger, and Landlord may either terminate all or any existing
subtenancies or treat the surrender or cancellation as an assignment to Landlord
of any or all such subtenancies.
ARTICLE 27
GENERAL PROVISIONS
27.1 WAIVERS. One or more waivers by Landlord of any covenant or
condition contained in this Lease or of any breach or default by Tenant shall
not be construed as a waiver of a subsequent breach or default of the same or of
any other covenant or condition, and the consent or approval by Landlord to or
of any act of Tenant which requires Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent or similar act by Tenant. The subsequent acceptance by Landlord
of rent or of any other payment shall not constitute a waiver of any concurrent
or preceding breach or default by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular rental or
payment so accepted, regardless of Landlord's knowledge of such preceding or
concurrent breach or default at the time of acceptance of such rent or payment.
No waiver shall be effective unless it is in writing and signed by Landlord.
27.2 NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent provided to be paid shall be deemed to
be other than on account of the earliest rent due and payable under this Lease,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction. Landlord may
accept any such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy provided in this
Lease.
27.3 NOTICES. All notices, demands, and statements shall be in writing
and shall be given by personal delivery, facsimile transmission, express
delivery service or by deposit in the United States mail, certified, return
receipt requested, postage prepaid, addressed to the parties at the addresses
appearing in the FUNDAMENTAL LEASE PROVISIONS or at such other place as either
party may designate in writing to the other party. A copy of any notice or
demand sent to Landlord shall be sent to the following address:
New Castle Corp.
c/o Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
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The date notice is given shall be the date on which the notice is delivered, if
notice is given by personal delivery, facsimile transmission if confirmation of
transmission is made, or express delivery service, or the date of deposit in the
mail, if the notice is sent through the United States mail. Notice is deemed to
have been received on the date on which the notice is delivered, if notice is
given by personal delivery, facsimile transmission or express delivery service,
or three (3) days after deposit in the mail, if the notice is sent through the
United States mail.
27.4 RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall
be deemed or construed by the parties or by any third person to create the
relationship of principal and agent, of partnership, of joint venture or of any
association between Landlord and Tenant, and neither the method of computation
of rent nor any other provision contained in this Lease nor any acts of the
parties shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
27.5 ATTORNEYS' FEES. In the event of any action or proceeding brought
by either party against the other under this Lease or any guarantee of this
Lease, the prevailing party shall be entitled to recover attorneys' fees in such
amount as the court or other fact finder may judge reasonable.
27.6 BINDING EFFECT. Subject to all limitations on assignment and
subletting set forth in this Lease, all of the terms and provisions of this
Lease shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties to this Lease.
27.7 INTEREST ON PAST DUE OBLIGATIONS. Any amount due to Landlord which
is not paid when due shall bear interest from the due date until paid at the
rate equal to the lesser of twelve percent (12%) per annum or the maximum rate
allowed by law. Payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
27.8 SEVERABILITY. If any one or more of the provisions of this Lease
or the applicability of any such provision to a specific situation shall be held
invalid or unenforceable, such provision shall be modified to the minimum extent
necessary to make it or its application valid and enforceable, and the validity
and enforceability of all other provisions of this Lease and all other
applications of such provisions shall not be affected by such determination.
27.9 ENTIRE AGREEMENT; AMENDMENT. This Lease, together with the
attached Exhibits which are an integral part of this Lease, constitutes the
entire agreement between the parties pertaining to the subject matter of this
Lease. All prior and contemporaneous agreements, representations and
understandings of the parties, oral or written, are superseded and merged in
this Lease. No supplement, modification or amendment of this Lease shall be
binding unless in writing and executed by both parties.
27.10 CAPTIONS. The captions of the Sections and Articles of this
Lease are for convenience only and shall not be considered or referred
to in resolving questions of interpretation
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or construction. References in this Lease to "SECTIONS" and "ARTICLES" are to
the various Sections and Articles of this Lease, unless otherwise noted.
27.11 CONSTRUCTION. The laws of the State of Nevada shall govern the
validity, performance, and enforcement of this Lease. This Lease shall not be
construed either for or against Landlord or Tenant. This Lease shall be
interpreted in an effort to reach an equitable result. Whenever the context may
require, any pronouns used in this Lease shall include the corresponding
masculine, feminine or neuter forms and the singular form of nouns and pronouns
shall include the plural and vice versa. If there is more than one Tenant, the
obligations under this Lease shall be considered the joint and several
obligations of each. Whenever or wherever in this Lease, the consent of Landlord
or Tenant is required, such consent shall not be unreasonably withheld or
delayed, unless otherwise specifically stated herein.
27.12 TIME OF ESSENCE. Time is of the essence with respect to the
performance of each of the covenants and agreements contained in this Lease.
27.13 EXECUTION OF ADDITIONAL DOCUMENTS. Landlord and Tenant each agree
to execute such additional documents as may be necessary or appropriate to fully
carry out the provisions of this Lease.
27.14 TIME PERIODS. If the time for the performance of any obligation
or taking of action under this Lease expires on a Saturday, Sunday or legal
holiday, the time for performance or taking such action shall be extended to the
next succeeding day which is not a Saturday, Sunday or legal holiday.
27.15 RECORDATION. Tenant shall not record, or cause to be recorded,
this Lease or any memorandum of this Lease. without the prior written consent of
Landlord.
27.16 BROKERS. The parties warrant that they have had no dealings with
any broker or agent in connection with this Lease, and covenant to pay, hold
harmless and indemnify each other from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any broker or
agent with respect to this Lease or the negotiation thereof.
27.17 QUIET ENJOYMENT. Upon Tenant paying Minimum and Additional Rent
for the Premises and performing all of the covenants, conditions and provisions
on Tenant's part to be observed and performed hereunder, Tenant shall have the
quiet possession of the Premises for the Lease Term hereof subject to all of the
provisions of this Lease.
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IN WITNESS WHEREOF, this Lease is executed as of the date first-above written.
NEW CASTLE CORP., a Nevada corporation
By: /s/ Xxx Xxxxxx
----------------------------------
Its: VP/GM
----------------------------------
"Landlord"
SITKA RESTAURANT GROUP, INC., A NEVADA
CORPORATION,
By: /s/ Xxxx Xxxxxx
----------------------------------
Its: President
----------------------------------
"TENANT"
ACKNOWLEDGMENTS
STATE OF NEVADA )
): ss.
County of XXXXX )
The foregoing instrument was acknowledged before me this 19th day of NOVEMBER,
1998, by XXX XXXXXX, the V.P./G.M. of New Castle Corp., a Nevada corporation,
on behalf of the corporation.
/s/ Xxxxx X. Xxxxxx
-------------------
NOTARY PUBLIC
My Commission Expires:
8/18/2001
----------------------
[NOTARY PUBLIC SEAL]
38
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STATE OF NEVADA )
):ss.
County of XXXXX )
The foregoing instrument was acknowledged before me this 9th day of
November 9, 1998, by Xxxx Xxxxxx , the President of SITKA RESTAURANT
GROUP, INC., a Nevada corporation, on behalf of the corporation.
/s/ Xxxxx Xxxxxxxx
------------------
NOTARY PUBLIC
My Commission Expires:
6-20-99
----------------------
[NOTARY PUBLIC SEAL]
39
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File No. 93-04-2078 RMG FIRST AMENDMENT
EXHIBIT "A" (CONT)
PARCEL TWO (2):
---------------
That portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.M., Xxxxx County, Nevada,
being more particularly described as follows:
Commencing at the Southeast (SE) corner of the Northeast Quarter (NE 1/4) of
Section 29;
the said point also being on the centerline of Las Vegas Boulevard South;
Thence North 00 degrees 19'25" West, along the East line of the South Half
(S 1/2) of the Northeast Quarter (NE 1/4) of Section 29, being the said
centerline of Las Vegas Boulevard South, a distance of 1379.62 feet to a point
for the Southeast (SE) corner of the said North Half (N 1/2) of the Northeast
Quarter (NE 1/4) of said Section 29;
Thence South 89 degrees 37'48" West, departing the said East line and departing
the said centerline of Las Vegas Boulevard South, and along the South line of
the said North Half (N 1/2) of the Northeast Quarter (NE 1/4) of Section 29, a
distance of 150.00 feet to an angle point on the West right-of-way line of Las
Vegas Boulevard South;
Thence North 00 degrees 20'09" West, along the said West line, a distance of
21.54 feet to a point for the Southeast (SE) corner and POINT OF BEGINNING of
this parcel;
Thence South 89 degrees 37'48" West, departing the said West right-of-way line,
a distance of 650.00 feet to a point for the Southwest (SW) corner of this
parcel;
Thence North 00 degrees 20'09" West, a distance of 378.46 feet to a point for
the Northwest (NW) corner of this parcel;
Thence North 89 degrees 37'48" East, a distance of 475.00 feet to an angle
point;
Thence South 00 degrees 20'09" East, a distance of 140.00 feet to an angle
point;
Thence North 89 degrees 37'48" East, a distance of 175.00 feet to a point for
the Northeast (NE) corner of this parcel;
the said point being on the said West right-of-way line of Las Vegas Boulevard
South;
Thence South 00 degrees 20'09" East, along the said West right-of-way line, a
distance of 238.46 feet to the POINT OF BEGINNING.
EXHIBIT "A"
49
File No. 93-04-2078 RMG FIRST AMENDMENT
EXHIBIT "A" (CONT)
PARCEL THREE (3):
-----------------
That portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.M., Xxxxx County, Nevada,
being more particularly described as follows:
Commencing at the Southeast (SE) corner of the Northeast Quarter (NE 1/4) of
Section 29;
the said point also being on the centerline of Las Vegas Boulevard South;
Thence North 00 degrees 19'25" West, along the East line of the South Half (S
1/2) of the Northeast Quarter (NE 1/4) of Section 29, being the said centerline
of Las Vegas Boulevard South, a distance of 1379.62 feet to a point for the
Southeast (SE) corner of the said North Half (N 1/2) of the Northeast Quarter
(NE 1/4) of Section 29;
Thence South 89 degrees 37'48" West, departing the said East line and departing
the said centerline of Las Vegas Boulevard South, and along the South line of
the said North Half (N 1/2) of the Northeast Quarter (NE 1/4) of Section 29, a
distance of 150.00 feet to an angle point on the West right-of-way line of Las
Vegas Boulevard South;
Thence North 00 degrees 20'09" West, along the said West line, a distance of
400.00 feet to a point for the most Easterly Southeast (SE) corner and POINT OF
BEGINNING of this parcel;
Thence South 89 degrees 37'48" West, departing the said West right-of-way line,
a distance of 650.00 feet to an angle point;
Thence South 00 degrees 20'09" East, a distance of 378.46 feet to a point for
the most Southerly Southeast (SE) corner of this parcel;
Thence South 89 degrees 37'48" West, a distance of 1391.19 feet to a point on
the East right-of-way line of Xxxxxxxxxx Xxxxxxx Xx. 00 for the Southwest (SW)
corner of this parcel;
Thence North 00 degrees 08'58" East, along the said East right-of-way line, a
distance of 631.00 feet to an angle point;
Thence North 17 degrees 52'21" East, continuing along the said East line, a
distance of 297.56 feet to a point for the Northwest (NW) corner of this parcel;
the said point being on a curve concave Northwesterly having a radius of 424.00
feet and a radial bearing of North 01 degrees 30'50" West;
Thence Northeasterly along the said 424.00 foot radius non-tangent curve to the
left having a central angle of 32 degrees 17'50", and an arc distance of 239.01
feet to a point of tangency having a radial bearing of South 33 degrees 48'40"
East;
Exhibit "A" continued........
EXHIBIT "A"
50
File No. 93-04-2078 RMG FIRST AMENDMENT
EXHIBIT "A" (CONT)
Parcel Three (3) - cont
Thence North 56 degrees 11'20" East, a distance of 85.91 feet to an angle
point;
Thence South 33 degrees 48'40" East, a distance of 41.87 feet to an angle
point;
Thence North 56 degrees 11'20" East, a distance of 154.12 feet to an angle
point;
Thence North 73 degrees 14'26" East, a distance of 142.57 feet to a point on the
South right-of-way line of Tropicana Avenue;
Thence North 88 degrees 59'03" East, continuing along the said South
right-of-way line of Tropicana Avenue, a distance of 427.65 feet to angle point;
Thence North 01 degrees 00'57" West, a distance of 27.62 feet to an angle point;
Thence North 88 degrees 59'03" East, a distance of 176.52 feet to a point of
curvature of a curve concave Southwesterly having a radius of 34.00 feet and a
radial bearing of South 01 degrees 00'57" East;
Thence Southeasterly along the arc of the said 34.00 foot radius non-tangent
curve to the right having a central angle of 47 degrees 00'55", and an arc
distance of 27.90 feet to a point having a radial bearing of North 45 degrees
59'58" East;
Thence North 88 degrees 59'03" East, a distance of 128.05 feet to a point of
curvature of a non-tangent curve concave Southeasterly having a radius of 33.50
feet and a radial bearing of South 71 degrees 31'14" East;
Thence Northeasterly along the arc of the said 33.50 foot radius non-tangent
curve to the right having a central angle of 70 degrees 30'17", and an arc
distance of 41.22 feet to a point of tangency having a radial bearing of North
01 degrees 00'57" West;
Thence North 88 degrees 59'03" East, a distance of 458.54 feet to an angle
point;
Thence South 87 degrees 23'48" East, a distance of 71.35 feet to a point of
curvature of a non-tangent curve concave Southwesterly having a radius of 66.50
feet and a radial bearing of South 06 degrees 40'36" West;
Thence Southeasterly along the arc of the said 66.50 foot radius curve to the
right having a central angle of 39 degrees 00'42", and an arc distance of 45.28
feet to a point on the said West right-of-way line of Las Vegas Boulevard South
for the Northeast (NE) corner of this parcel having a radial bearing of North
45 degrees 41'18" East;
Thence South 00 degrees 20'09" East, along the said West right-of-way line, a
distance of 772.41 feet to the POINT OF BEGINNING.
Exhibit "A" continues................
EXHIBIT "A"
51
File No. 93-04-2078 RMG FIRST AMENDMENT
Exhibit "A" continued.................
Parcel Three (3) - cont
Together with that portion of land as conveyed to NEW CASTLE CORPORATION by that
Deed recorded July 22, 1992 in Book 920722 as Document No. 00568 Official
Records, being more particularly described as follows:
A portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of Section
29, Township 21 South, Range 61 East, M.D.M., and more fully described by metes
and bounds as follows, to wit:
PARCEL A:
---------
BEGINNING at a point on the right or Easterly right-of-way line of IR-15
Freeway, 544.91 feet right of and at right angles to Highway Engineer's Station
"B1" 202(divided by)19.83 P.O.T.; said POINT OF BEGINNING further described as
bearing South 67(degrees)13'20" East, a distance of 793.13 feet from the North
Quarter corner of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.M.: thence
South 89(degrees)59'19" East, along said right-of-way line, a distance of 48.24
feet to a point; thence South 56(degrees)90'56" West, along the former right or
Easterly right-of-way line of said IR-15 Freeway, a distance of 40.07 feet to a
point; thence North 33(degrees)50'18" West, along said former right-of-way line,
a distance of 26.87 feet to the POINT OF BEGINNING; said parcel contains an area
of 538 square feet (0.01 of an acre), more or less.
PARCEL B:
---------
BEGINNING at a point on the right or Easterly right-of-way line of IR-15
Freeway, 687.74 feet right of and at right angles to Highway Engineer's Station
"B1" 202(divided by)82.88 P.O.T.; said POINT OF BEGINNING further described as
bearing South 74(degrees)25'54" East a distance of 907.56 feet from the North
Quarter corner of Section 29, Township 21 South, Range 61 East, M.D.M.; thence
North 47(degrees)24'51" East, along said right-of-way line, a distance of 58.37
feet to a point; thence North 88(degrees)57'13" East, along said right-of-way
line, a distance of 93.48 feet to a point; thence South 73(degrees)11'47" West,
along the former right or Easterly right-of-way line of said IR-15 Freeway, a
distance of 142.53 feet to the POINT OF BEGINNING; said parcel contains an area
of 1,809 square feet (0.04 of an acre), more or less.
Exhibit "A"
52
File No. 93-04-2078 RMG FIRST AMENDMENT
EXHIBIT "A" (CONT)
PARCEL FOUR (4):
That portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.M., Xxxxx County, Nevada,
being more particularly described as follows:
Commencing at the Southeast (SE) corner of the Northeast Quarter (NE 1/4) of
Section 29;
the said point also being on the centerline of Las Vegas Boulevard South;
Thence North 00 degrees 19' 25" West, along the East line of the South Half
(S 1/2) of the Northeast Quarter (NE 1/4) of Section 29, being the said
centerline of Las Vegas Boulevard South, a distance of 1379.62 feet to a
point for the Southeast (SE) corner of the said North Half (N 1/2) of the
Northeast Quarter (Ne 1/4) of Section 29;
Thence South 89 degrees 37' 48" West, departing the said East line and departing
the said centerline of Las Vegas Boulevard South, and along the South line of
the said North Half (N 1/2) of the Northeast Quarter (NE 1/4) of Section 29, a
distance of 2191.37 feet to a point on the East right-of-way line of Interstate
Xxxxxxx Xx. 00;
Thence North 00 degrees 08' 58" East, along the said East right-of-way line, a
distance of 652.64 feet to an angle point;
Thence North 17 degrees 52' 21" East, continuing along the said East line, a
distance of 366.17 feet to a point for the Southwest (SW) corner and POINT OF
BEGINNING of this parcel;
the said point being on a curve concave Northwesterly having a radius of 360.00
feet a radial bearing of North 5 degrees 8' 28" West;
Thence North 17 degrees 52' 21" East, continuing along the said East line, a
distance of 122.55 feet to a point for the Northwest (NW) corner of this parcel;
Thence North 86 degrees 07' 17" East, a distance of 187.48 feet to an angle
point;
Thence South 33 degrees 48' 40" East, a distance of 26.57 feet to an angle
point;
Thence South 56 degrees 11' 20" West, a distance of 85.91 feet to a point of
curvature of the said 360.00 foot radius curve concave Northwesterly; the said
point having a radial bearing of North 33 degrees 48' 40" West;
Thence Southwesterly along the arc of the said 360.00 foot radius non-tangent
curve to the right having a central angle of 28 degrees 40' 12", and an arc
distance of 180.14 feet to the POINT OF BEGINNING.
Exhibit "A" continued................
EXHIBIT "A"
53
File No. 93-04-2078 RMB FIRST AMENDMENT
EXHIBIT "A" (CONT)
PARCEL FIVE (5):
Being a portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.M., and more fully described
by metes and bounds as follows, to wit:
BEGINNING at a point on the right or Easterly right-of-way line of IR-15 Freeway
(Project IR-015-1(81)37), 240.73 feet right of and at right angles to Highway
Engineer's Station "B1" 201+11.27 P.O.T.;
said point of beginning further described as bearing South 45 degrees 52'00"
East, a distance of 594.71 feet from the North Quarter (N 1/4) Corner of Section
29, Township 21 South, Range 61 East, M.D.M.;
Thence North 17 degrees 51'33" East, along the former right or Easterly
right-of-way line of said IR-15 Freeway, a distance of 58.52 feet to an
intersection with the Northwesterly "RB" ramp right-of-way line of said IR-15
Freeway;
Thence from a tangent which bears North 84 degrees 50'00" East curving to the
left along said Northwesterly "RB" ramp right-of-way line, with a radius of 360
feet, through an angle of 28 degrees 40'18", an arc distance of 180.15 feet to a
point;
Thence North 56 degrees 09'42" East, continuing along said right-of-way line, a
distance of 85.91 feet to an intersection with said Easterly IR-15 Freeway
right-of-way line;
Thence North 33 degrees 50'18" West, along said Easterly IR-15 Freeway
right-of-way line, a distance of 26.57 feet to a point;
Thence South 86 degrees 05'39" West, continuing along said Easterly right-of-way
line, a distance of 187.46 feet to an intersection with said former right or
Easterly right-of-way line or IR-15 Freeway;
Thence along said former right or Easterly right-of-way line, the following
Three (3) courses and distances:
1) North 17 degrees 51'33" East - 10.77 feet;
2) North 86 degrees 05'39" East - 200.25 feet;
3) North 88 degrees 57'13" East - 322.20 feet to an intersection with said
right or Easterly IR-15 Freeway right-of-way line;
Thence along said Easterly right-of-way line, the following Three (3) courses
and distances:
1) South 73 degrees 11'47" West - 142.53 feet;
2) South 56 degrees 09'56" West - 154.12 feet;
3) North 33 degrees 50'18" West - 41.87 feet to a point on the Southeasterly
"RB" ramp right-of-way line of said IR-15 Freeway;
Thence South 56 degrees 09'42" West, along Southeasterly "RB" ramp right-of-way
line, a distance of 85.91 feet to a point;
Thence from a tangent which bears the last described course, curving to the
right along said right-of-way line, with a radius of 424 feet, through an angle
of 32 degrees 18'04", an arc distance of 239.04 feet to the POINT OF BEGINNING.
Exhibit "A"
Exhibit "A" continued.........
54
File No. 93-04-2078 RMG FIRST AMENDMENT
Exhibit "A" continued..........
EXHIBIT "A" (cont)
EXCEPTING THEREFROM that portion of said land as conveyed to NEW CASTLE
CORPORATION by that Deed recorded July 22, 1992 in Book 920722 as Document No.
00568 of Official Records, more particularly described as follows:
A portion of the North Half (N 1/2) of the Northeast Quarter (NE 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.M., and more fully described
by metes and bounds as follows, to wit:
PARCEL A:
BEGINNING at a point on the right or Easterly right-of-way line of IR-15
Freeway, 544.91 feet right of and at right angles to Highway Engineer's Station
"B1" 202+19.83 P.O.T.; said POINT OF BEGINNING further described as bearing
South 67 degrees 13'20" East, a distance of 793.13 feet from the North Quarter
corner of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.M.: thence South 89
degrees 59'19" East, along said right-of-way line, a distance of 48.24 feet to
a point; thence South 56 degrees 09'56" West, along the former right or Easterly
right-of-way line of said IR-15 Freeway, a distance of 40.07 feet to a point;
thence North 33 degrees 50'18" West, along said former right-of-way line, a
distance of 26.87 feet to the POINT OF BEGINNING; said parcel contains an area
of 538 square feet (0.01 of an acre), more or less.
PARCEL B:
BEGINNING at a point on the right or Easterly right-of-way line of IR-15
Freeway, 687.74 feet right of and at right angles to Highway Engineer's Station
"B1" 202+82.88 P.O.T.; said POINT OF BEGINNING further described as bearing
South 74 degrees 25'54" East a distance of 907.56 feet from the North Quarter
corner of Section 29, Township 21 South, Range 61 East, M.D.M.; thence North 47
degrees 24'51" East, along said right-of-way line, a distance of 58.37 feet to
a point; thence North 88 degrees 57'13" East, along said right-of-way line, a
distance of 93.48 feet to a point; thence South 73 degrees 11'47" West, along
the former right or Easterly right-of-way line of said IR-15 Freeway, a
distance of 142.53 feet to the POINT OF BEGINNING; said parcel contains an area
of 1,809 square feet (0.04 of an acre), more or less.
Exhibit "A"
55
EXHIBIT "B"
[GRAPHIC OF FLOORPLAN]
56
EXHIBIT C
WORK LETTER AGREEMENT
LANDLORD: NEW CASTLE CORP., a Nevada corporation
TENANT: SITKA RESTAURANT GROUP, INC., a Nevada corporation,
DATE: November 16th, 1998
RECITALS
A. Concurrently with the execution of this Work Letter Agreement
(the "AGREEMENT"), Landlord and Tenant have entered into a lease (the "Lease")
covering certain leased premises (the "PREMISES") more particularly described in
the Lease. Capitalized terms not defined in this Agreement shall have the
meaning set forth in the Lease.
B. To induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of the Lease apply
hereto) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant hereby agree as follows:
AGREEMENT
1. TENANT IMPROVEMENTS.
1.1 Any reference herein to "TENANT IMPROVEMENTS" shall
include all work to be done in the Premises pursuant to the Tenant Improvement
Plans described in SECTION 2 below, including but not limited to partitioning,
interior doors, floor covering and finishes, reflective ceiling, electrical
fixtures, electrical outlets and switches, telephone outlets, plumbing fixtures,
paint and wall coverings, furniture, trade fixtures and equipment.
1.2 Tenant is leasing the Premises "as-is," "with all
faults," and "without any representations or warranties." Tenant agrees and
warrants that it has investigated and inspected the condition of the Premises
and the suitability of same for Tenant's use, and Tenant hereby waives and
disclaims any objection to, cause of action based upon, or claim that its
obligations hereunder should be reduced or limited because of the condition of
the Premises or the suitability of same for Tenant's use. Tenant acknowledges
that neither Landlord nor any agent nor any employee of Landlord has made any
representations or warranty with respect to the Premises or with respect to its
suitability for the conduct of Tenant's business and Tenant
57
expressly warrants and represents that Tenant has relied solely on its own
investigation and inspection of the Premises in its decision to enter into this
Lease.
1.3 Tenant further agrees and warrants that, subject to the
provisions of this Agreement, (i) Tenant is solely responsible for the
construction of all Tenant Improvements and the completion of all work necessary
to prepare the Premises for Tenant's use; and (ii) Landlord's only
responsibility with respect to the construction of the Tenant Improvements is to
deliver the Premises to Tenant and to review and approve plans and selections
related thereto as set forth in this Agreement.
2. PREPARATION OF TENANT IMPROVEMENT PLANS.
2.1 Within fifteen (15) days after the execution of the Lease,
Tenant shall cause its architect and/or space planner to prepare a "SPACE PLAN"
for the layout of the Premises and shall submit such Space Plan to Landlord for
its approval, in its sole discretion. Landlord shall notify Tenant within
fifteen (15) business days after receipt of the Space Plan, whether Landlord
approves of the Space Plan and, if it does not fully approve of such Space Plan,
the respects in which the Space Plan is not acceptable. Within ten (10) business
days following receipt of any objection from Landlord, Tenant shall cause its
architect and/or space planner to revise the Space Plan to address Landlord's
objections and shall resubmit the same to Landlord. If Landlord objects in
writing to the resubmitted Space Plan within fifteen (15) business days
following its receipt thereof, Landlord and Tenant shall meet and confer to
resolve any dispute concerning the Space Plan.
2.2 Within fifteen (15) days following approval of the Space Plan,
Tenant shall cause its architect to prepare final working drawings and
specifications for the Tenant Improvements (the "WORKING DRAWINGS") and shall
submit the same to Landlord for approval, in its sole discretion, which approval
shall follow the same procedure set forth in SECTION 2.1 above. Once approved by
Landlord, the Space Plan and Working Drawings shall be referred to herein as the
"TENANT IMPROVEMENT PLANS."
2.3 At the same time that the Tenant Improvement Plans are
presented to Landlord for approval, Tenant shall also submit a budget to
Landlord itemizing the estimated cost to return the Premises to the condition
existing prior to the construction of the Tenant Improvements ("REFURBISHMENT
COST"). The Refurbishment Cost and the annual incremental increase thereto
necessary to reflect increases in construction costs over time shall be
determined by mutual agreement of Landlord and Tenant at the time of the
approval of the Tenant Improvement Plans.
2.4 Once the Tenant Improvement Plans have been approved, the
Tenant Improvement Plans shall not be changed without the prior approval of
Landlord.
C-2
58
3. CONSTRUCTION OF THE TENANT IMPROVEMENTS.
3.1 After approval of the Space Plan and Working Drawings by
Landlord, a contractor designated by Tenant and approved by Landlord, in its
sole discretion ("CONTRACTOR") shall construct the Tenant Improvements.
3.2 Tenant shall independently retain Contractor to construct the
Tenant Improvements in accordance with the Tenant Improvements Plans and Tenant
shall supervise the construction by Contractor.
3.3 In constructing the Tenant Improvements, all subcontractors
and laborers used by Tenant and Contractor shall be unionized laborers unless
such unionized labor is not available for such work after diligent inquiry and
investigation.
3.4 Should any "mechanic's" or other lien be filed against the
Premises or any part thereof by reason of Tenant's construction of the Tenant
Improvements or because of a claim against Tenant, Tenant shall cause the same
to be canceled and discharged of record by bond or otherwise within ten (10)
days after receipt of notice thereof and shall indemnify and defend Landlord and
hold it harmless for, from and against any claims arising out of any such claims
against Tenant. If Tenant fails to discharge any such mechanic's lien filed
against the Premises in accordance with the foregoing, Tenant will be in default
under the Lease and Landlord shall have the right, but not the obligation, to
discharge such mechanic's lien and to seek reimbursement from Tenant plus
interest thereon at a rate of twelve percent (12%) per annum until paid.
3.5 The Tenant Improvements shall comply in all respects with the
following: (i) state, federal, city or quasi-governmental laws, codes,
ordinances and regulations, as each may apply according to the rulings of the
controlling public official, agent or other person; (ii) building material
manufacturer's specifications; and (iii) the Tenant Improvement Plans. Tenant
shall obtain and pay for all necessary licenses, permits and certificates of
occupancy required by any applicable governmental agency for the Premises and
shall provide Landlord with a duplicate original of the certificate of occupancy
issued by Xxxxx County along with unconditional lien waivers executed by
Contractor and each subcontractor.
3.6 Contractor and each subcontractor shall guarantee to Tenant
and for the benefit of Landlord that the portion of the Tenant Improvements for
which it is responsible shall be free from any defects in workmanship and
materials for a period of not less am one (1) year from the date of completion
thereof. Contractor and each subcontractor shall be responsible for the
replacement or repair, without additional charge, of all work done or furnished
in accordance with its contract that shall become defective within one (1) year
after the later to occur of (i) completion of the work performed by such
contractor or subcontractors and (ii) the Commencement Date. The correction of
such work shall include, without additional charge, all additional expenses and
damages incurred in connection with such removal or replacement of all
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59
or any part of the Tenant Improvements, and/or the Premises that may be damaged
or disturbed thereby. All such warranties or guarantees as to materials or
workmanship of or with respect to the Tenant Improvements shall be contained in
the contract or subcontract between Tenant and Contractor and each
subcontractor. The contracts between Tenant and Contractors and subcontractors
shall be written such that all guarantees and warranties and all other rights
and remedies at law, in equity or by contract with respect to the work performed
and Contractor's obligations shall inure to the benefit of both Landlord and
Tenant, as their respective interests may appear, and can be directly enforced
by either. Tenant covenants to give to Landlord any assignment or other
assurances which may be necessary to effect such rights of direct enforcement.
4. PAYMENT OF COST OF THE TENANT IMPROVEMENTS. Tenant shall be solely
responsible for the cost to construct the Tenant Improvements (the "TI COSTS").
5. COMPLETION OF TENANT IMPROVEMENTS; COMMENCEMENT DATE. Landlord shall
deliver the Premises to Tenant immediately upon execution and delivery of the
Lease. Tenant shall thereafter promptly commence the construction process in
accordance with the terms and conditions of this Agreement. If the Tenant does
not complete construction of the Tenant Improvements so that it is able to open
for business to the public on or before the Rent Commencement Date, Tenant shall
nonetheless pay the Minimum Rent provided for in the Lease plus an additional
rent at the rate of one-twentieth (1/20th) of the Minimum Rent for each and
every day from the Rent Commencement Date that Tenant is not open for business.
If Tenant has not completed construction of the Tenant Improvements so that it
is able to open for business to the public within thirty (30) days following the
Rent Commencement Date, Landlord shall have the right to terminate the Lease
upon prior written notice to Tenant at any time after thirty (30) days following
the Rent Commencement Date. Such written notice shall specify the date of such
termination. If Landlord terminates this Lease in accordance herewith, Tenant
shall not be entitled to reimbursement for any TI Costs incurred prior to the
effective date of the termination and Tenant shall be responsible for paying to
Landlord the Refurbishment Cost, as may be appropriately adjusted to reflect the
degree of construction completed prior to the termination.
6. INSURANCE. Contractor and each subcontractor shall carry worker's
compensation insurance covering all of their respective employees, and shall
also carry public liability insurance, including property damage, with all
limits, in a form and with companies as are required to be carried by Tenant as
set forth in the Lease. Tenant shall carry "Builder's All Risk" insurance in an
amount approved by Landlord covering the construction of the Tenant
Improvements, and such other insurance as Landlord may require. Such insurance
shall be in amounts and shall include such extended coverage endorsements as may
be reasonably required by Landlord. Certificates for all insurance carried by
Tenant pursuant to this SECTION 6 shall be delivered to Landlord before the
commencement of construction of the Tenant Improvements and before the
Contractor's equipment is moved onto the site. All such policies of insurance
must contain a provision that the company writing said policy will give Landlord
thirty (30) days' prior written notice of any cancellation or lapse of the
effective date or any reduction in the amounts of such insurance. In the event
that the Tenant Improvements are damaged by any cause during the
C-4
60
course of the construction thereof, Tenant shall immediately repair the same at
Tenant's sole cost and expense. All insurance, except Workers' Compensation,
maintained by Contractor and each subcontractor shall preclude subrogation
claims by the insurer against anyone insured thereunder. Such insurance shall
provide that it is primary insurance as respects the Landlord and that any other
insurance maintained by Landlord is excess and noncontributing with the
insurance required hereunder.
7. LANDLORD'S RIGHT TO INSPECT. Landlord shall have the right to
inspect the Tenant Improvements at all times, provided however, that Landlord's
failure to inspect the Tenant Improvements shall in no event constitute a waiver
of any of Landlord's rights hereunder nor shall Landlord's inspection of the
Tenant Improvements constitute Landlord's approval of the same. Should Landlord
disapprove any portion of the Tenant Improvements, Landlord shall notify tenant
in writing of such disapproval and shall specify the items disapproved. Any
defects or deviations in, and/or disapproval by Landlord of, the Tenant
Improvements shall be rectified by Tenant at no expense to Landlord, provided
however, that in the event Landlord determines that a defect or deviation exists
or disapproves of any matter in connection with any portion of the Tenant
Improvements and such defect, deviation or matter might adversely affect the
mechanical, electrical, plumbing, heating, ventilating and air-conditioning or
life-safety systems of the Project, the structure or exterior appearance of the
Project or any other tenant's use of such other tenant's premises, Landlord may
take such action as Landlord deems necessary, at Tenant's expense and without
incurring any liability on Landlord's part, to correct any such defect,
deviation and/or matter, including, without limitation, causing the cessation of
performance of the construction of the Tenant Improvements until such time as
the defect, deviation and/or matter is corrected to Landlord's satisfaction.
8. OWNERSHIP. Except as may be expressly set forth on the Tenant
Improvement Plans, the Tenant Improvements shall be owned by Landlord and shall
be surrendered by Tenant at the expiration or prior termination of the Lease.
Upon such expiration or earlier termination of the Lease, Tenant hereby assigns
to Landlord all warranties and guaranties from Contractor relating to the Tenant
Improvements, and shall execute whatever documents may be necessary to evidence
such assignment if requested by Landlord.
9. REPRESENTATIVES. Landlord and Tenant each appoint the following
individuals to act as their respective representatives in all matters covered by
this Agreement:
Tenant's Representative: XXXX XXXXXX
Landlord's Representative: XXXX XXXXXX
All inquiries, requests, instructions and authorizations and other
communications with respect to the matters covered by this Agreement will be
submitted to the Landlord's representative or Tenant's representative, as the
case may be. Each party may change its representative under this Agreement at
any time upon three (3) days prior written notice to the other party.
C-5
61
10. TIME. Time is of the essence in this Agreement. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. In all instances where Tenant is required to approve or deliver
an item, if no written notice of approval is given or the item is not delivered
within the stated time period, at Landlord's sole option, at the end of such
period the item shall automatically be deemed approved or delivered by Tenant
and the next succeeding time period shall commence.
11. TENANT'S LEASE DEFAULT. Notwithstanding any provision to the
contrary contained in this Lease, if an event of default as described in the
Lease, or a default by Tenant under this Agreement, has occurred at any time on
or before the Substantial Completion of the Premises, then all other obligations
of Landlord under the terms of this Agreement shall be forgiven until such time
as such default is cured pursuant to the terms of the Lease.
12. RESPONSIBILITY FOR DESIGN. Tenant will be responsible for the
design, function and maintenance of all Tenant Improvements, whether or not
approved by Landlord. Landlord's preparation and/or approval of the Tenant
Improvement Plans or inspection of the Tenant Improvements will not constitute
any representation or warranty by Landlord as to the adequacy, efficiency,
performance or desirability of Tenant's Improvements in the Premises and shall
create no responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with all laws, rules, and
regulations of governmental agencies or authorities.
13. NOTICES. Notices under this Agreement shall be given in accordance
with the notice provisions set forth in the Lease.
14. CONFLICTS. In the event of any conflict between the provisions of
this Agreement and the provisions of the Lease, the provisions of this Agreement
shall govern.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
SITKA RESTAURANT GROUP, INC.,
a Nevada corporation,
By: /s/ Xxxx Xxxxxx
--------------------------------
Its: President
-------------------------------
"TENANT"
NEW CASTLE CORP.,
a Nevada corporation
By: /s/ Xxx Xxxxxx
--------------------------------
Its: VP/GM
-------------------------------
"LANDLORD"
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EXHIBIT D
Ownership of Tenant
100% owned by Mondel, Inc., which is 100% owned by American Vantage
Companies.
64
EXHIBIT E
ACCOUNTING PROCEDURES
1. ROOM CHARGES. Landlord shall pay to Tenant all room charges on the
second (2nd) business day after such room charges were incurred by restaurant
patrons. Such amounts shall be paid by direct deposit in a bank account
established by Tenant. Landlord shall provide a weekly reconciliation of
payments made under this PARAGRAPH 1, and Landlord and Tenant shall make any
necessary adjusting payments. Provided that Tenant follows all procedures
reasonably established by the Landlord for processing room charges, Landlord
shall assume the risk of non-payment by guests of Landlord or its Affiliates.
2. COMPS. By the fifteenth (15th) day of each month, Landlord shall
provide Tenant with a report (the "COMP REPORT") summarizing (i) the amount
treated as Comps under SECTION 7.10 of the Lease, (ii) the amount applied toward
the Comp Threshold and (iii) the amount by which the Monthly Comp Threshold is
exceeded in any month during the Term of this Lease. Tenant shall supply
Landlord with such information as may be necessary to calculate these amounts.
Landlord shall pay to Tenant any amount required under SECTION 7.10(b) of the
Lease on or before the fifteenth (15th) of the month following the month for
which such Comps were furnished.
3. PAYMENTS TO LANDLORD. Amounts payable by Tenant to Landlord under the
Lease, including, but not limited to, Minimum Rent, Percentage Rent, and Service
Charge, shall be paid by Tenant in the manner provided under the Lease.
4. POINT OF SALE EQUIPMENT. In addition to any point of sale equipment
required by Tenant to operate the restaurant and cafe located on the Premises,
Tenant shall, at Landlord's request, maintain at the Premises point of sale
equipment designated by Landlord (the "PROJECT POS EQUIPMENT") that will
interface with the operating system for the Project, and all room charges and
Comps will be processed using the Project POS Equipment. The point of sale
equipment initially installed at the Premises (including the Project POS
Equipment) will be installed in accordance with EXHIBIT C of the Lease. The
Project POS Equipment will be maintained, repaired and replaced by Landlord. All
point of sale equipment other than the Project POS Equipment will be maintained,
repaired and replaced by Tenant.
5. GROSS REVENUES. Tenant will provide Landlord unaudited information on
gross revenues derived from the restaurant and cafe on a daily basis, in a form
agreed to by Landlord and Tenant.
65
EXHIBIT F
EXCLUDED EMPLOYEES
Owners
Room Managers
Managers
Supervisors
