EXHIBIT 10.51
LEASE
by and between
HBR REALTY COMPANY, INC.,
a Nevada corporation,
as Landlord,
and
IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION,
an Iowa nonprofit corporation,
as Tenant,
for
the Bluffs Run Casino
located at
0000 00xx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx
Dated: October 5, 1999
LEASE
This Lease (this "LEASE"), dated for reference purposes only as of October
5, 1999, is made by and between HBR REALTY COMPANY, INC., a Nevada corporation
("LANDLORD"), and IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION, an Iowa
nonprofit corporation ("TENANT"). Landlord and Tenant are sometimes collectively
referred to herein as the "PARTIES" and individually as a "PARTY."
R E C I T A L S :
A. Landlord owns the real property more particularly described on
EXHIBIT "A" hereof (the "LAND"). Located on the Land are certain improvements
(the "IMPROVEMENTS") containing, among other things, a dog racing track and
casino, commonly known as "Bluffs Run Casino." The Improvements, together
with all other improvements and fixtures now or hereafter located on the
Land, including, without limitation all of the following, are hereinafter
referred to as the "GAMING FACILITY": fixtures, apparatus, equipment,
facilities and appliances used in connection with the operation or occupancy
of the Land (such as heating and air conditioning systems and facilities used
to provide any utility services, parking services, refrigeration,
ventilation, trash disposal, recreation or other services thereto),
electrical lighting systems, electrical systems, electrical distribution
systems (power panels, xxxx ducting, conduits, disconnects, lighting
fixtures), telephone systems and all the appurtenances thereto (including all
equipment, instruments, receivers, lines, wiring systems, jacks, hook-ups and
connections), space heaters, air conditioning equipment, air lines, carpets,
window coverings, wall coverings, plumbing, plumbing fixtures, plumbing
systems, boilers, pressured or unpressured fire vessels, fire sprinklers,
standpipe and hose, fire extinguishing systems (including fire alarm and
smoke detection systems and equipment), fire hydrants and signs.
B. All personal property, furniture, furnishings and equipment owned or
leased by Landlord and located at the Gaming Facility and used in connection
with the Gaming Facility are collectively referred to herein as the "PERSONAL
PROPERTY". The Personal Property includes, without limitation, supplies,
computer equipment, service equipment, kitchen equipment, decorations, china,
glassware, linens, silverware, kitchen and bar small goods, paper goods,
printing, stationary and uniforms, fixtures, appliances, fittings, vehicles and
inventories, EXCEPTING, the gaming equipment (collectively, the "GAMING
EQUIPMENT") described on EXHIBIT "B" attached hereto, which is owned by Tenant.
C. All contracts, to which Landlord is a party which relate to the
operation of the Gaming Facility are collectively referred to herein as the
"SERVICE CONTRACTS." The Service Contracts include, without limitation, supply
contracts, utility contracts, water and sewer service contracts of any nature,
repair, service or maintenance contracts, management contracts, janitorial
contracts, elevator contracts, landscaping contracts, pest control and supply
contracts, insurance policies and all other contracts or documents of any nature
relating to or affecting the Gaming Facility and the Personal Property, each as
amended from time to time.
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D. All intangible property owned, leased or licensed by Landlord and used
in connection with the Gaming Facility or the Personal Property is collectively
referred to herein as the "INTANGIBLE PROPERTY." The Intangible Property
includes, without limitation: (a) all contract rights (including, without
limitation, the Service Contracts), current accounts receivable (as determined
in accordance with generally accepted accounting principles), books, records,
reports, operating and training manuals, test results, environmental
assessments, if any, as-built plans, specifications and other similar documents
and materials relating to the use, operation, mainte xxxxx, repair, construction
or fabrication of all or any portion of the Gaming Facility and/or the Personal
Property; (b) all rights, if any, in and to the trademarks, tradenames, patents,
and trade secrets; (c) all computer software used in the operation and
maintenance of all activities conducted on the Property (collectively, the
"SOFTWARE"); (d) all transferable business licenses, architectural, site,
landscaping or other permits, applications, approvals, authorizations and other
entitlements affecting any portion of the Gaming Facility; (e) all transferable
guarantees, warranties and utility contracts relating to all or any portion of
the Gaming Facility; (f) all human resources files and records and all other
records relating to any employees of Landlord; and (g) goodwill, all customer
lists and player lists, mailing lists, casino files, copies of accounting
records and copies of financial statements.
E. Landlord and Tenant expressly acknowledge and reaffirm Tenant's
obligation and Landlord's commitment made to the Iowa Racing & Gaming Commission
(the "GAMING COMMISSION") at their September 23, 1999 meeting, whereby Tenant
will submit a plan to spend up to $150,000.00 in capital improvements to resolve
the minors entry issue and submit a plan therefor to the Gaming Commission on or
before September 23, 2000.
Landlord and Tenant hereby agree as follows:
1. LEASE. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon all of the terms, covenants and conditions set forth in this
Lease, the Gaming Facility, the Personal Property, the Service Contracts and the
Intangible Property (collectively, the "PREMISES").
2. USE. Tenant shall occupy the Gaming Facility upon the commencement of
the "Initial Term" (as hereinafter defined) and thereafter shall continuously
use, or cause to be used, the Gaming Facility for a pari-mutuel dog racetrack
and casino, including all activities incident thereto. Tenant shall cause the
Gaming Facility to be open twenty-four hours a day, seven days a week, subject
to force majeure. Subject to licensing requirements of the State of Iowa,
Landlord may in its sole discretion, at any time, change, alter, or amend the
name of the Gaming Facility.
3. TERM. The initial term of this Lease (the "INITIAL TERM") shall be for
twenty-five (25) years, commencing on October 5, 1999 ("COMMENCEMENT DATE") and
expiring on the twenty-fifth (25th) anniversary of the Commencement Date.
Following the Initial Term, this Lease shall automatically renew for successive
twenty-five (25) year terms on the same terms and conditions, unless and until
Landlord gives Tenant thirty (30) days prior written notice of its
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intent to terminate this Lease. The Initial Term and all renewal terms of this
Lease are collectively referred to herein as the "TERM." Notwithstanding the
foregoing, if the Management Agreement, dated as of the date hereof ("MANAGEMENT
AGREEMENT"), by and between Harveys BR Management Company, a Nevada corporation
("MANAGER"), and Tenant terminates, expires or is declared invalid pursuant to a
final order by a court or other governmental authority with competent
jurisdiction over the Management Agreement and/or this Lease after the parties
have each used commercially reasonable efforts to take any and all actions
necessary to keep the Management Agreement and/or this Lease in force and
effect, the Management Agreement and/or this Lease shall automatically terminate
and the parties shall negotiate in good faith and enter into a replacement
Management Agreement and/or Lease to replace such terminated, expired or invalid
Management Agreement and/or Lease. The parties hereby agree that,
notwithstanding the foregoing sentence, Tenant shall not be obligated to incur
any significant financial liability or obligation as a result of its
commercially reasonable efforts and actions to keep the Management Agreement
and/or the Lease in force and effect.
3.1 HOLDING OVER.
3.1.1 If Tenant holds possession of all or any part of the
Premises after the expiration of the Term of this Lease or the earlier
termination of the Term, Tenant shall become a tenant from month-to-month, and
Tenant shall continue to pay Rent (as defined below) in the amount payable upon
at the expiration of the Term or upon the earlier termination of this Lease and
all other provisions, representations, covenants and agreements contained herein
shall remain in full force and effect.
3.1.2 Acceptance by Landlord of Rent after the Expiration Date or
earlier termination of this Lease shall not result in a renewal or reinstatement
of this Lease.
3.1.3 The foregoing provisions of this Section 3 are in addition
to and do not affect Landlord's right to re-entry or any other rights of
Landlord hereunder or as otherwise provided by law.
4. RENT. Tenant shall, as rent for the Premises and in consideration for
Landlord entering into this Lease, pay to Landlord "Rent" (as defined below),
weekly and in arrears, commencing on the first (1st) day of the second full
week of the Initial Term. "RENT" shall be in an amount equal to twenty
percent (20%) of the "CASH FLOW" (as defined below) of the Premises;
provided, that until the fifth (5th) business day following the date that the
results of the "Referendum" (as defined in that certain Purchase and Sale
Agreement and Joint Escrow Instructions, dated as of August 31, 1999 (the
"PURCHASE AGREEMENT"), by and between Landlord and Tenant) are certified to
the County Auditor of Pottawattamie County, Iowa (the "REFERENDUM PAYMENT
DATE"), Tenant shall be permitted to retain $1,350,000.00 ("TENANT'S RETAINED
AMOUNT") of Cash Flow every six months. Until the occurrence of the
Referendum Payment Date, Tenant's Retained Amount shall be deducted from the
first weekly Rent payment due on the sixth (6th) month anniversary of the
date of this Lease and on every six (6) month anniversary thereafter. If
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any weekly Rent payment retained by Tenant is less than Tenant's Retained
Amount, subsequent weekly Rent payments (or any portion thereof) shall continue
to be retained by Tenant until Tenant has retained the full Tenant's Retained
Amount for such six (6) month period. In the event the Referendum Payment Date
occurs before the end of any such six (6) month anniversary period, Tenant's
Retained Amount for such period shall be prorated and shall be payable within
five (5) days of the Referendum Payment Date. Except as provided herein, all
Rent shall be payable by Tenant to Landlord without demand, offset, deduction or
reduction of any sort whatsoever. Rent shall be paid directly to Landlord by
Manager. Provided Tenant has not taken any action (or inaction) which would
wrongfully hinder, prevent or frustrate Manager's ability to pay any Rent or
otherwise perform its duties under the Management Agreement, Tenant shall not
have any liability for any Rent should Manager fail to pay such Rent, with
Landlord's only remedy in the event of such default being termination of this
Lease unless the failure to pay Rent by Manager is due to the willful and
fraudulent act (including, without limitation, Tenant's action to prevent or
hinder Manager's access to funds in the "Operating Account" (as defined in the
Management Agreement)) or the misappropriation of funds in the Operating
Account. The parties agree that Landlord shall have no recourse against Tenant
or any property of Tenant, other than the Operating Account maintained by
Manager pursuant to the Management Agreement for payment of Rent or any other
amounts due hereunder.
"CASH FLOW" as used herein, means, for any period, all revenues and income
of any kind, directly or indirectly derived from use or operation of the
Facility and Gaming Operations (as defined in the Management Agreement),
including, without limitation, pari-mutuel commissions, simulcast income, Gaming
Operations wins, parking and admissions, merchandise sales, food, beverage, and
entertainment income, rentals or other payments from lessees, sublessees and
concessionaires and proceeds of the sale of any Gaming Equipment, as defined
herein, LESS all costs and expenses with respect to the Facility and Gaming
Operations, including, without limitation, the Initial Payment (as defined in
the Management Agreement) and Tenant's Retained Amount, purses, pari-mutuel
taxes and fees, audit and license fees, gaming taxes and fees, complimentary
items, departmental operating expenses, selling, general and administrative
expenses, expenditures for purchasing, leasing and maintaining Gaming Equipment
(including, without limitation, contracts which may be in the name of Tenant as
permitted under the Management Agreement), auditing expenses, greyhound adoption
costs, property taxes but excluding depreciation, amortization, and Tenant's
administrative expenses and charitable contributions. Cash Flow shall be
determined on the accrual basis of accounting in accordance with generally
accepted accounting principles.
At the end of each fiscal year, the actual weekly Cash Flow of the Premises
shall be reconciled with the weekly Cash Flow as calculated during such fiscal
year by the certified public accountants then serving the Premises and, if
necessary, an adjusting payment or refund shall be made.
5. DELIVERY. Subject to Landlord's representations and warranties set forth
herein, Landlord shall deliver the Premises to Tenant in an "AS IS" condition on
the Commencement
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Date. Tenant hereby acknowledges that it has inspected the Premises and that
it accepts the same in its current condition.
6. MAINTENANCE; ALTERATIONS.
6.1 LANDLORD'S OBLIGATION. Landlord shall, at Landlord's expense, keep
the Premises in good order, condition and repair. Tenant shall have no
obligation to repair or maintain the Premises.
6.2 DEFINITIONS. The term "UTILITY INSTALLATIONS" is used in this
Lease to refer to all carpeting, window coverings, air lines, power panels,
electrical distribution, security, fire protection systems, communication
systems, lighting fixtures, heating, ventilating, and air conditioning
equipment, plumbing, and fencing in, on or about the Premises. The term
"TRADE FIXTURES" shall mean the Gaming Equipment. The term "ALTERATIONS"
shall mean any modification of the Premises, other than Utility Installations
or Trade Fixtures, whether by addition or deletion.
6.3 ALTERATIONS. Tenant may not, without Landlord's prior written
consent, make any Alterations or Utility Installations in, on, under or about
the Premises, whether structural or nonstructural, or install or remove any
Trade Fixtures, unless required by applicable law.
6.4 OWNERSHIP. All Alterations and Utility Additions made to the
Premises by Tenant shall be the property of and owned by Landlord and
considered a part of the Gaming Facility.
6.5 REMOVAL. Unless otherwise agreed to in writing, Tenant may remove
any or all the Trade Fixtures upon the expiration or earlier termination of
this Lease.
6.6 SURRENDER. Tenant shall surrender the Premises on the date the
Term of this Lease expires or any earlier termination date, in its condition
as of such time.
7. INSURANCE AND INDEMNITY.
7.1 LIABILITY INSURANCE. At all times after the execution of this
Lease, Landlord and Tenant will carry and maintain, at Landlord's expense, a
commercial (comprehen sive) liability insurance policy naming Landlord and
Tenant as named insureds, including (but not limited to) insurance against
assumed or contractual liability under this Lease, with respect to liability
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall (i) have a deductible amount
of $1,000,000 or less and (ii) be on an occurrence basis providing single limit
coverage in amounts provided in the Management Agreement.
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7.2 PROPERTY INSURANCE. At all times after the execution of this Lease,
Landlord and Tenant will carry and maintain, at Landlord's expense, all-risk
property and casualty insurance naming Landlord and Tenant as named insureds,
and Landlord and Tenant, together with the holders of any mortgages or deeds of
trust on the Premises, as loss payees as said parties' interests may appear,
including theft coverage, written at replacement cost value and with replacement
cost endorsement, covering said interests in the Premises (including but not
limited to all fixtures attached thereto), all of Landlord's or Tenant's
personal property in the Premises (including without limitation, inventory,
trade fixtures, floor coverings, furniture and other property removable by
Tenant under the provisions of the Lease) and all leasehold improvements
installed in the Premises. Such policy or policies of insurance shall (i) have a
deductible amount of $1,000,000 or less and (ii) insure the interests of
Landlord and Tenant in the Gaming Equipment against loss or damage by casualty
in its full insurable value.
7.3 Intentionally omitted.
7.4 POLICY REQUIREMENTS. The Company or companies writing any insurance
which Landlord and/or Tenant are required to carry and maintain or cause to be
carried or maintained pursuant to this Section, as well as the form of such
insurance, shall at all times be subject to approval of the Gaming Commission
and any such company or companies shall be licensed to do business in the State
of Iowa and maintain during the policy term a "General Policyholders Ratings" of
at least B+, V, as set forth in the most current issue of "Best's Insurance
Guide." Comprehensive commercial liability and all risks, property, and casualty
insurance policies shall be primary and noncontributory, and shall also contain
a provision by which the insurer agrees that such policy shall not be canceled,
materially changed or not renewed without at least thirty (30) days' advance
notice to Tenant, at Tenant's notice address, as specified in Section 18.1
hereof. Each such policy, or a certificate thereof, shall be deposited with
Tenant by Landlord promptly upon commencement of Landlord's obligation to
procure the same. If Landlord shall fail to perform any of its obligations under
this Section 7, Tenant may perform the same.
7.5 WAIVER OF SUBROGATION. Without affecting any other rights or remedies,
Tenant and Landlord (each, a "WAIVING PARTY") each hereby release and relieve
the other, and waive their entire right to recover damages (whether in contract
or in tort) against the other, for loss of or damage to the Waiving Party's
property arising out of or incident to the perils required to be insured against
under this Section 7. The effect of such releases and waivers of the right to
recover damages shall not be limited by the amount of insurance carried or
required, or by any deductibles applicable thereto.
7.6 INDEMNITY. Landlord shall indemnify Tenant and Tenant's employees,
agents, successors and assigns and hold each of them harmless from and against
any and all liability, claims, damages, or causes of action of any nature,
including court costs and reasonable attorney's fees, arising out of the
negligent act or omission of Landlord, or of any person or entity
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for whose acts Landlord is responsible, or arising out of any Default (as
hereinafter defined) by Landlord.
8. DAMAGE OR DESTRUCTION.
8.1 DAMAGE OR DESTRUCTION. In the event of partial damage or
destruction of the Premises not exceeding fifty percent (50%) of the full
insurable value of the Premises, and if the damage or destruction thereto is
such that the Premises may be repaired, reconstructed or restored within a
period of six (6) months from the date of the happening of such casualty and
Landlord will receive insurance proceeds sufficient to cover the cost of such
repairs (except for any deductible amount provided by Landlord's policy,
which deductible amount shall be paid by Landlord), Landlord shall commence
and proceed diligently with the work of repair, reconstruction and
restoration and this Lease shall continue in full force and effect. In the
event of any damage to or destruction of the Premises, other than as provided
in the foregoing sentence, Landlord may elect, in its sole and absolute
discretion (a) to repair, reconstruct and restore the Premises, in which case
this Lease shall continue in full force and effect or (b) not to repair,
reconstruct and restore the Premises, in which case this Lease shall
terminate upon notice thereof to Tenant. Landlord hereby acknowledges that in
the event there is any damage or destruction to the Premises, Tenant shall
have no obligation to repair or restore the same, nor shall Tenant have any
liability under this Lease for any damage thereto from any cause.
8.2 TERMINATION--ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Section 8, an equitable adjustment shall be made concerning any
advance rent paid by Tenant to Landlord.
8.3 WAIVE STATUTES. Landlord and Tenant agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
9. REAL AND PERSONAL PROPERTY TAXES. Landlord shall pay, prior to
delinquency, all real property taxes and assessments ("REAL PROPERTY TAXES")
applicable to the Premises during the Term of this Lease. During the Term,
Landlord shall also pay, prior to delinquency, any personal property taxes on
any part of the Premises which is subject to such taxes.
10. UTILITIES. Landlord shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. Tenant shall not be liable for any
utility charges.
11. ASSIGNMENT AND SUBLETTING.
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11.1 CONSENT REQUIRED. Tenant may not, without Landlord's prior
written consent, assign, sublease, transfer, hypothecate, encumber, pledge,
or otherwise convey (collectively, "TRANSFER") this Lease, the Premises or
Tenant's rights hereunder.
11.2 NO RELEASE. A Transfer, whether or not permitted by Landlord,
shall not release Tenant of any obligations hereunder, or for the performance
of any other obligations to be performed by Tenant under this Lease, subject
to the other terms and conditions of this Lease.
12. DEFAULT; BREACH; REMEDIES.
12.1 DEFAULT; BREACH. A "DEFAULT" is defined as a failure by Tenant or
Landlord to keep, observe or perform any covenant, agreement, term or
provision of this Lease or the Purchase Agreement, including, without
limitation, the failure by Tenant to maintain, in good standing pursuant to
applicable laws, rules, regulations, ordinances and/or orders, the racing and
gaming licenses necessary to operate the Gaming Facility as a dog racing
track and casino (collectively, the "GAMING LICENSES") or the failure by
Tenant or Manager to keep, observe or perform their respective obligations
under the Management Agreement. A "BREACH" is defined as the occurrence of a
Default and the failure by Tenant, Landlord or Manager, as the case may be,
to cure such Default prior to the expiration of the applicable grace period,
if any.
12.2 BREACH BY TENANT OR LANDLORD.
12.2.1 BREACH BY TENANT. A Default by Tenant as to the covenants,
agreements, terms, or provisions of this Lease, the Management Agreement or the
Purchase Agreement to be observed, complied with or performed by Tenant where
such Default continues for a period of thirty (30) days after Tenant's receipt
of written notice thereof by or on behalf of the Landlord shall constitute a
Breach of this Lease, the Management Agreement and the Purchase Agreement;
PROVIDED, HOWEVER, if the nature of the Default is reasonably susceptible of
cure but more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in Breach of this Lease, the Management
Agreement and the Purchase Agreement if Tenant promptly commences such cure
within such thirty (30) day period, and thereafter diligently pursues the cure
thereof; PROVIDED FURTHER, HOWEVER, if the nature of the Default is such that it
cannot be cured or ceases to be reasonably susceptible of cure, then Tenant
shall immediately be in breach of this Lease, the Management Agreement and the
Purchase Agreement. Notwithstanding the foregoing, a failure by Tenant to
maintain the Gaming Licenses in good standing pursuant to applicable law, and
the continuance of such failure for more than five (5) days, shall constitute a
Breach of this Lease, the Management Agreement, and the Purchase Agreement,
unless such failure is due solely to the act or neglect of Landlord or Manager
or due to the Breach of this Lease or the Management Agreement by Landlord or
Manager.
12.2.2 BREACH BY LANDLORD. A Default by Landlord as to the material
covenants, agreements, terms, or provisions of this Lease or the Purchase
Agreement to
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be observed, complied with or performed by Landlord, or a Default by Manager as
to the material covenants, agreements, terms or provisions of the Manager
Agreement to be observed, complied with or performed by Manager where such
Default continues for a period of thirty (30) days after Landlord's receipt of
written notice thereof by or on behalf of the Tenant shall constitute a Breach
of this Lease, the Management Agreement and the Purchase Agreement; PROVIDED,
HOWEVER, if the nature of the Default is reasonably susceptible of cure but more
than thirty (30) days are reasonably required for its cure, then Landlord or
Manager, as applicable, shall not be deemed to be in Breach of this Lease, the
Management Agreement and the Purchase Agreement if Landlord promptly commences
such cure within such thirty (30) day period, and thereafter diligently pursues
the cure thereof; PROVIDED FURTHER, HOWEVER, if the nature of the Default is
such that it cannot be cured or ceases to be reasonably susceptible of cure,
then Landlord or Manager, as applicable, shall immediately be in breach of this
Lease, the Management Agreement and the Purchase Agreement.
12.3 LIMITATION OF LIABILITY - Tenant. Neither Tenant nor its
members, affiliates, and successors or assigns shall have any personal
liability, responsibility or obligation for the performance of any obligation
of Tenant hereunder and Landlord agrees that in no event shall any monetary
judgments for such Breach or Default be sought or secured against any of the
foregoing; PROVIDED, HOWEVER, this limitation of liability shall not apply to
damages suffered by Landlord or Manager caused by Tenant's failure to keep
and maintain the covenants contained in Section 14 hereof.
12.4 LIMITATION OF LIABILITY - LANDLORD. Landlord's parents,
affiliates, shareholders, successors or assigns shall have no personal
liability, responsibility or obligation for the performance of any obligation
of Landlord hereunder and Tenant agrees that in no event shall any monetary
judgments for such Breach or Default be sought or secured against any of the
foregoing.
13. CONDEMNATION.
13.1 TERMINATION OF LEASE. If the Premises or any portion thereof
are taken under the power of eminent domain or sold under the threat of the
exercise of said power (collectively, "CONDEMNATION"), Landlord may, at
Landlord's sole and absolute discretion, terminate this Lease as of the date
the condemning authority takes such possession.
13.2 AWARD. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat
of the exercise of such power shall, after payment of all obligations secured
by the Premises and obligations owed to Tenant and any manager of the
Premises, be the sole property of Landlord, including, but not limited to,
any compensation for the value of the fee interest, or any other interest of
Landlord.
14. COVENANTS. Tenant hereby covenants that:
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14.1 During the Term of this Lease, Tenant (i) shall continue to
qualify as a nonprofit corporation organized under the laws of Iowa to
promote the purposes enumerated in section 99B.7, subsection 0, xxxxxxxxx "x"
of the Iowa Code (the "IOWA CODE PROVISION") and (ii) shall use its best
efforts to promote the purposes enumerated in the Iowa Code Provision.
14.2 During the Term of this Lease, Tenant shall use its best
efforts to maintain the good standing status of the Gaming Licenses,
including, without limitation, making timely filings and promptly paying any
and all fees required for the continued use of the Gaming Licenses.
14.3 Tenant shall not directly or indirectly sell, contribute,
assign or create any right, title or interest whatsoever in or to the
Premises, the Gaming Licenses, or the Gaming Equipment, or create or permit
to exist thereon any lien, charge or encumbrance, or enter into any agreement
to do any of the foregoing, without the prior written consent of Landlord
(which consent may be granted or withheld in Landlord's sole and absolute
discretion).
15. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease or in the
relationship between Landlord and Tenant shall be deemed to constitute a
partnership, joint venture or any other relationship between them, except that
of landlord and tenant.
16. SEVERABILITY. If any provision of this Lease or the application of any
provision of this Lease is determined by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Lease shall not be affected but
shall be enforced to the extent permitted by law and otherwise consistent with
the intent hereof.
17. NO PRIOR OR OTHER AGREEMENTS. This Lease, together with the Management
Agreement, the Confidentiality and Non-Disclosure Agreement, dated as of May 4,
1998, and the Purchase Agreement, contains all agreements between the Parties
with respect to any matter mentioned herein and under no other prior or
contemporaneous agreement or understanding shall be effective. This Lease
supersedes all of the other prior or contemporaneous agreements of the Parties
with respect to the subject matter hereof.
18. NOTICES.
18.1 PLACE. All notices required or permitted by this Lease shall be
in writing and may be delivered in person (by hand or by messenger or courier
service) or may be sent by certified or registered mail or U.S. Postal
Service Express Mail, with postage prepaid, or by facsimile transmission, and
shall be deemed sufficiently given if served in a manner specified in this
Section. The addresses noted below shall be that Party's address for delivery
or mailing of notice purposes. Tenant shall only be obligated to deliver any
notices intended for Landlord to the one address noted below. Either Party
may by written notice to the other specify a different address for notice
purposes.
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To Landlord: HBR Realty Company, Inc.
c/o Harveys Casino Resorts
Xxxxxxx 00 & Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With A Copy To: Xxxxxxxxx & Xxxxxx, Ltd.
Kingsbury Square
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Tenant: Iowa West Racing Association, Nonprofit Corporation
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Mr. Xxxx Xxxxx
Telephone: (000) 000-0000, ext. 11
Telecopy: (000) 000-0000
With A Copy To: Xxxxxx Law Firm
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
18.2 DEEMED RECEIPT. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. Notices
delivered by United States Express Mail or overnight courier that guarantees
next day delivery shall be deemed given twenty-four (24) hours after delivery of
the same to the United States Postal Service or courier. If any notice is
transmitted by facsimile transmission or similar means, the same shall be deemed
served or
11
delivered upon telephone confirmation of receipt of the transmission thereof,
provided a copy is thereafter also delivered via delivery or mail. If notice is
received on a Sunday or legal holiday, it shall be deemed received on the next
business day.
19. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by and interpreted in accordance with the laws of the State of Iowa. The parties
to this Lease have been involved in the drafting of this Lease. This Lease shall
not be construed for or against any particular Party, but shall be interpreted
to effectuate the intent of the Parties based upon the language of this Lease.
This Lease shall constitute a covenant running with the Land.
20. ARBITRATION OF DISPUTES. Any dispute, controversy or claim arising
out of or relating to this Lease, or the breach, termination or validity
hereof, shall be finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, as modified herein (the "RULES"). The place of arbitration shall be
Omaha, Nebraska. There shall be three arbitrators, of whom Landlord shall
appoint one and Tenant shall appoint one within thirty (30) days of the
receipt by the respondent of the demand for arbitration. The two arbitrators
so appointed shall select the chair of the arbitral tribunal within thirty
(30) days of the appointment of the second arbitrator. If such arbitrator is
not appointed within the time limit provided herein, such arbitrator shall be
appointed by the American Arbitration Association ("AAA") in accordance with
the Rules. Any arbitrator appointed by the AAA shall be an experienced
arbitrator who is either a retired judge or a practicing attorney with no
less than fifteen years of experience with large commercial cases. Any
arbitration proceedings, decision or award rendered hereunder and the
validity, effect and interpretation of this arbitration agreement shall be
governed by the Iowa Arbitration Act, Chapter 679A of the Iowa Code (1999).
By agreeing to arbitration, the parties do not intend to deprive any court of
its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment
or other order in aid of arbitration proceedings and the enforcement of any
award. Without prejudice to such provisional remedies in aid of arbitration
as may be available under the jurisdiction of a court, the arbitral tribunal
shall have full authority to grant provisional remedies and to award damages
for the failure of any party to respect the arbitral tribunal's orders to
that effect. Any decision or award rendered hereunder shall be final and
binding on the parties and judgment upon such decision or award may be
entered in any court having jurisdiction thereof.
21. ATTORNEY'S FEES. If any Party brings an action or proceeding to enforce
the terms hereof or declare rights hereunder, the prevailing party in any such
proceeding, action, or appeal thereon, shall be entitled to reasonable
attorney's fees and disbursements.
22. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at any time, for any purpose and without advance
notice to Tenant.
12
23. SIGNS. Landlord, at its sole and absolute discretion, may install any
and all signs in or on the Premises. Tenant may not install any signs in or on
the Premises without the prior written consent of Landlord.
24. QUIET POSSESSION. Upon payment by Tenant of the Rent for the Premises
and observance and performance of all of the covenants, conditions and
provisions on Tenant's part to be observed and performed under this Lease,
Tenant shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
25. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said Party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said Party
to pay such sum or any part thereof, said Party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
26. COUNTERPARTS. This Lease may be executed in counterparts at different
times and places, each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument.
27. AMENDMENTS. This Lease may not be changed, modified, renewed, extended,
canceled or discharged, or any covenant or provision waived, except by an
agreement in writing, signed by the Party against whom enforcement of the
change, modification, renewal, extension, discharge or waiver is sought.
28. MEMORANDUM OF LEASE. Simultaneously with the execution of this Lease,
Landlord and Tenant shall execute a memorandum of lease (the "MEMORANDUM"), in
the form attached hereto as EXHIBIT "C", to be recorded in the official records
of Pottawattamie County, Iowa. Landlord shall pay the cost of said recordation.
29. ESTOPPEL CERTIFICATES. Tenant shall within twenty (20) days of written
request from Landlord, execute, acknowledge and deliver a statement in writing
substantially in the form attached to this Lease as EXHIBIT "D" with all blanks
filled in, and on any other form reasonably requested by a proposed lender or
purchaser, (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect), (ii) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed, and (iii)
setting forth such further information with respect to this Lease or the
Premises, as may be requested thereon. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the Land or
the Premises. Tenant's failure to deliver such statement within such time shall
be conclusive
13
upon Tenant that the Lease is in full force and effect and without modification
except as may be represented by Landlord in any certificate prepared by Landlord
and delivered to Tenant for execution.
30. CHANGE IN GAMING FACILITY. In the event Landlord elects to add onto,
demolish or otherwise modify in any way the Gaming Facility, the Gaming Facility
as so modified shall be subject to this Lease. Tenant and Landlord agree to
perform, execute, and/or deliver or cause to be performed, executed, or
delivered at Landlord's sole expense, any and all such further acts,
instruments, deeds and assurances as may be reasonably required to evidence such
modification, including, without limitation, an amendment to this Lease and the
Memorandum. Tenant and Landlord hereby further agree that such modification
shall not require a change in the formula used to calculate Rent and no
additional consideration shall be required for such modification.
31. TERMINATION AS A RESULT OF A CHANGE IN LAW. In the event during the
Term of this Lease, applicable laws, rules, regulations, ordinances and/or
orders with respect to dog racing, pari-mutuel gaming, or the operation of the
Gaming Facility (i) change to allow a transfer of the Gaming Licenses to
Landlord (or an affiliate of Landlord), then Tenant shall, within ten (10) days
of a written request from Landlord, and subject to any necessary prior approval
of the appropriate State of Iowa licensing authorities, transfer the Gaming
Licenses to Landlord or its designee, or (ii) prohibit all gaming or pari-mutuel
activities on the Premises, then this Lease shall terminate and be of no further
force or effect from the date of such transfer. In the event this Lease
terminates for this, or any other reason, the Management Agreement shall also
terminate.
[SIGNATURE PAGE FOLLOWS.]
14
Landlord and Tenant have executed this Lease as of the date first
written above.
"LANDLORD":
HBR REALTY COMPANY, INC.,
a Nevada corporation
By:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name:
Title:
"TENANT":
IOWA WEST RACING ASSOCIATION,
NONPROFIT CORPORATION,
an Iowa nonprofit corporation
By:
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
By:
/s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
EXHIBIT "A"
LEGAL DESCRIPTION
A tract of land located in the W 1/2 SE 1/4 of Section 3, Township 74, Range 44
more particu larly described as follows: Commencing at the center of said
Section 3, Township 74, Range 44; thence South 00o 39'35" West, (assumed
bearing) along the West line of the Southeast Quarter of said Section 3,
Township 74, Range 44, a distance of 330 feet to the point of beginning; thence
South 88o 23'26" East along a line 330 feet South of and parallel to the North
line of said Southeast Quarter Section 3, a distance of 200 feet; thence North
00o 39'35" East along a line 200 feet East of and parallel to the West line of
said Southeast Quarter Section 3, a distance of 290 feet; thence South 88o
23'26" East along a line 40 feet South of and parallel to the North line of said
Southeast Quarter Section 3, a distance of 1117.97 feet; thence South 00o 39'48"
West, a distance of 2435.39 feet to a point that is 165 feet North of and
1317.73 feet East of the South Quarter corner of said Section 3, Township 74,
Range 44; thence North 88o 40'24" West along a line 165 feet North of and
parallel to the South line of said Southeast Quarter Section 3, a distance of
1317.73 feet to the West line of said Southeast Quarter Section 3; thence North
00o 39'35" East along said West line of the Southeast Quarter Section 3, a
distance 2151.89 feet to the point of beginning.
16
EXHIBIT "B"
GAMING EQUIPMENT
17
EXHIBIT "C"
FORM OF MEMORANDUM OF LEASE
PREPARER
INFORMATION Xxxxx X. Xxxxxxxx, c/o Xxxxxxx Xxxx, et. al., 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (213) 687-5000
----------------------------------------------------------------------------------------------------------------------
Individual Name Street Address City State Zip Code
---------------------------------------------------------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (this "MEMORANDUM") is made and entered
into as of ________________, 1999, by and between HBR REALTY COMPANY, INC., a
Nevada corporation ("LANDLORD"), and IOWA WEST RACING ASSOCIATION, NONPROFIT
CORPORATION, an Iowa nonprofit corporation ("TENANT").
WHEREAS, Landlord and Tenant have entered into that certain Lease
(as modified, supplemented, and assigned, the "LEASE"), pursuant to which
Landlord leases to Tenant and Tenant leases from Landlord that certain property
located in the City of Council Bluffs, Iowa, County of Pottawattamie, State of
Iowa, more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference (the "PROPERTY").
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows:
The initial term (the "INITIAL TERM") of the Lease is for
twenty-five (25) years, commencing on ______________, 1999 and expiring on the
twenty-fifth (25th) anniversary date thereof, unless sooner terminated pursuant
to the terms of the Lease. The Lease shall automatically renew for successive
twenty-five (25) year terms, unless and until Landlord gives Tenant thirty (30)
days prior written notice of its intent to terminate the Lease.
The parties hereby acknowledge and agree that this Memorandum is
being executed solely for the purpose of giving notice to the public of the
existence of the Lease, the terms and conditions of which are expressly
incorporated herein by reference for all purposes as though fully set forth
herein. Should there be any inconsistency between the terms of this Memorandum
and the terms of the Lease, the terms of the Lease shall prevail.
18
IN WITNESS WHEREOF, the parties hereto have duly executed this
Memorandum as of the day and year first above written.
LANDLORD:
HBR REALTY COMPANY, INC.,
a Nevada corporation
By: ________________________________
Name:
Its:
TENANT:
IOWA WEST RACING ASSOCIATION,
NONPROFIT CORPORATION,
an Iowa corporation
By: __________________________
Name: Xxxxxxx X. Xxxxx
Title: President
By: __________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary
19
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
On this ____ day of _____________, ________, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxx to me
personally known, who being by me duly sworn, did say that he is the president
of Iowa West Racing Association, Nonprofit Corporation, an Iowa nonprofit
corporation, that no seal has been procured by the said corpora tion; that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors; and that the said president as such officer, acknowledged the
execution of said instrument to be the voluntary act and deed of said
corporation, by it and by him voluntarily executed.
By:
----------------------------
Notary Public
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
On this ____ day of _____________, ________, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxx X. Xxxxx to me
personally known, who being by me duly sworn, did say that he is the secretary
of Iowa West Racing Association, Nonprofit Corporation, an Iowa nonprofit
corporation, that no seal has been procured by the said corpora tion; that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors; and that the said secretary as such officer, acknowledged the
execution of said instrument to be the voluntary act and deed of said
corporation, by it and by him voluntarily executed.
By:
-----------------------------
Notary Public
20
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
On this ____ day of _____________, ________, before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________________
to me personally known, who being by me duly sworn, did say that he is
the______________________ of HBR Realty Company, Inc., a Nevada corporation,
that no seal has been procured by the said corporation; that said instrument was
signed on behalf of said corporation by authority of its Board of Directors; and
that the said_______________________ as such officer, acknowledged the execution
of said instrument to be the voluntary act and deed of said corporation, by it
and by him voluntarily executed.
By:
---------------------------
Notary Public
21
EXHIBIT "A" TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION
A tract of land located in the W 1/2 SE 1/4 of Section 3, Township 74, Range 44
more particU larly described as follows: Commencing at the center of said
Section 3, Township 74, Range 44; thence South 00 DEG.39'35" West, (assumed
bearing) along the West line of the Southeast Quarter of said Section 3,
Township 74, Range 44, a distance of 330 feet to the point of beginning; thence
South 88 DEG.23'26" East along a line 330 feet South of and parallel to the
North line of said Southeast Quarter Section 3, a distance of 200 feet; thence
North 00 DEG.39'35" East along a line 200 feet East of and parallel to the West
line of said Southeast Quarter Section 3, a distance of 290 feet; thence South
88 DEG.23'26" East along a line 40 feet South of and parallel to the North line
of said Southeast Quarter Section 3, a distance of 1117.97 feet; thence South 00
DEG.39'48" West, a distance of 2435.39 feet to a point that is 165 feet North of
and 1317.73 feet East of the South Quarter corner of said Section 3, Township
74, Range 44; thence North 88 DEG.40'24" West along a line 165 feet North of and
parallel to the South line of said Southeast Quarter Section 3, a distance of
1317.73 feet to the West line of said Southeast Quarter Section 3; thence North
00 DEG.39'35" East along said West line of the Southeast Quarter Section 3, a
distance 2151.89 feet to the point of beginning.
22
EXHIBIT "D"
FORM OF ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of
______________, is executed by IOWA WEST RACING ASSOCIATION, NONPROFIT
CORPORATION, an Iowa nonprofit corporation ("TENANT"), in favor of HBR REALTY
COMPANY, INC., a Nevada corporation together with its nominees, designees and
assigns (collectively, "LANDLORD"), and ____________________
("PURCHASER"/"LENDER").
RECITALS
A. Tenant and Landlord entered into that certain Lease, dated as of
_______________ (together with all amendments, modifications, supplements,
guarantees and restatements thereof, the "LEASE"), for that certain real
property more particularly described on EXHIBIT "A" attached hereto and
incorporated herein (the "PROPERTY").
B. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Landlord
and Purchaser/Lender as follows:
SECTION 1. LEASE.
Attached hereto as EXHIBIT "B" is a true, correct and complete copy of
the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
___________________________________________________________________________.
SECTION 2. PROPERTY.
Pursuant to the Lease, Tenant leases the Property, consisting of among
other things, a dog racing track and casino, commonly known as "Bluffs Run
Casino."
SECTION 3. FULL FORCE OF LEASE.
The Lease has been duly authorized, executed and delivered by Tenant,
is in full force and effect has not been terminated and constitutes a legally
valid instrument, binding and enforceable against Tenant in accordance with its
terms, subject only to applicable limitations imposed by laws relating to
bankruptcy and creditor's rights.
23
SECTION 4. COMPLETE AGREEMENT.
The Lease constitutes the complete agreement between Landlord and
Tenant for the Property, except as modified by the Lease amendments noted above
(if any), has not been modified, altered or amended.
SECTION 5. ACCEPTANCE OF PROPERTY.
Tenant has accepted possession and is currently occupying the Property.
SECTION 6. LEASE TERM.
The initial term of the Lease commenced on ________________and ends on
_________, subject to successive automatic twenty-five (25) year renewals unless
Landlord terminates the Lease with thirty days prior written notice and as
further provided in the Lease attached hereto.
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to acquire or purchase all or any portion of the Property, except as
follows: NONE.
SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in this Certificate or in the Lease, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the
Property;
(c) has no right, title, or interest in the Property, other than as
Tenant under the Lease.
SECTION 9. RENT.
(a) The obligation to pay rent under the Lease commenced on
______________. The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying rent equal to twenty percent (20%) of
the Cash Flow (as defined in the Lease) from the Property. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent, or
credits, offsets or reductions in rent, except for Tenant's Retained Amount (as
defined in the Lease).
24
(c) To the best of Tenant's knowledge, there are no existing defenses
or offsets against rent due or to become due under the terms of the Lease, and
there presently is no default or other wrongful act or omission by Landlord
under the Lease or otherwise in connection with Tenant's occupancy of the
Property, nor is there a state of facts which with the passage of time or the
giving of notice or both could ripen into a default on the part of Tenant, or to
the best knowledge of Tenant, could ripen into a default on the part of Landlord
under the Lease, except as follows:
_______________________________________________________________________________
_______________________________________________________________________________
(If none, please state "None.")
SECTION 10. SECURITY DEPOSIT.
There is no security deposit currently being held by Landlord.
SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is Zero
Dollars ($0.00). Rent has been paid through _____________, _______.
SECTION 12. INSURANCE.
Tenant is not required to maintain any insurance on the Property or its
contents.
SECTION 13. PENDING ACTIONS.
There is not pending or, to the knowledge of Tenant, threatened against
or contemplated by the Tenant, any petition in bankruptcy, whether voluntary or
otherwise, any assignment for the benefit of creditors, or any petition seeking
reorganization or arrangement under the federal bankruptcy laws or those of any
state.
SECTION 14. TENANT IMPROVEMENTS.
As of the date of this Certificate, to the best of Tenant's knowledge,
Landlord has performed all obligations required of Landlord pursuant to the
Lease; no offsets, counterclaims, or defenses of Tenant under the Lease exist
against Landlord; and no events have occurred that, with the passage of time or
the giving of notice, would constitute a basis for offsets, counter claims, or
defenses against Landlord, except as follows:__________________________________
_______________________________________________________________________________
____________________. (If none, please state "None.")
SECTION 15. ASSIGNMENTS BY TENANT.
25
Tenant has not sublet or assigned the Property or the Lease or any
portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Pre mises. The address for notices to be sent
to Tenant is as set forth in the Lease.
SECTION 16. NOTIFICATION BY TENANT.
From the date of this Certificate and continuing until
___________________, Tenant agrees to immediately notify Landlord and
Purchaser/Lender in writing by registered or certified mail, return receipt
requested, at the following addresses, on the occurrence of any event or the
discovery of any fact that would make any representation contained in this
Certificate inaccurate:
If to Purchaser/Lender: ________________________
________________________
Attention: _______________________
With A Copy To: ________________________
________________________
Attention: _______________________
Tenant makes this Certificate with the knowledge that it will be relied
upon by Pur chaser/Lender in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written above
by the person named below, who is duly authorized to do so.
TENANT:
IOWA WEST RACING ASSOCIATION,
NONPROFIT CORPORATION,
an Iowa nonprofit corporation
By: __________________________
Name: Xxxxxxx X. Xxxxx
Title: President
By: __________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary
26
