LEASE AGREEMENT
XXXXXXX X. XXXXXX AND XXXX XXXXXX, TRUSTEES OF THE
XXXXXXX X. XXXXXX AND XXXX XXXXXX FAMILY TRUST,
u/a/d JULY 14, 1993, AS AMENDED,
LANDLORD
AND
BOARDWALK CASINO, INC., A NEVADA CORPORATION
TENANT
TABLE OF CONTENTS
1. PREMISES AND TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.1. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.3. OPTION TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.4. DEFINITION OF "LEASE TERM" FOLLOWING EXERCISE OF OPTION. . . . . -2-
1.5. NO REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . -2-
2. MATERIAL MODIFICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . -2-
2.1. APPROVAL OF PLANS AND SPECIFICATIONS . . . . . . . . . . . . . . -2-
2.2. LANDLORD'S IMPROVEMENT WORK. . . . . . . . . . . . . . . . . . . -2-
2.3. SUPERVISING ARCHITECT AND GENERAL CONTRACTOR . . . . . . . . . . -3-
2.4. COMPLETION BOND. . . . . . . . . . . . . . . . . . . . . . . . . -3-
2.5. COMMENCEMENT OF TENANT'S CONSTRUCTION. . . . . . . . . . . . . . -3-
2.6. LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
2.7. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
2.8. NO SUBORDINATION OF LANDLORD'S FEE TITLE . . . . . . . . . . . . -4-
2.9. NOTICE OF NON-RESPONSIBILITY . . . . . . . . . . . . . . . . . . -4-
2.10. LIENS AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . -4-
2.11. OWNERSHIP OF IMPROVEMENTS AND TENANT'S PERSONAL PROPERTY . . . . -4-
2.12. LAND USE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . -4-
3. RENT AND SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . -5-
3.1. BASE RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
3.2. INCREASES IN BASE RENT . . . . . . . . . . . . . . . . . . . . . -5-
3.3. PLACE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . -5-
3.4. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . -6-
3.5. INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGES . . . . . . . . . -6-
4. HOLDING OVER BY TENANT. . . . . . . . . . . . . . . . . . . . . . . . . -6-
5. LEASEHOLD TITLE INSURANCE . . . . . . . . . . . . . . . . . . . . . . . -6-
6. USES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
6.1. PERMITTED USE. . . . . . . . . . . . . . . . . . . . . . . . . . -7-
6.2. PROHIBITED USES. . . . . . . . . . . . . . . . . . . . . . . . . -7-
7. REPRESENTATIONS AND COVENANTS OF LANDLORD . . . . . . . . . . . . . . . -7-
7.1. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
7.2. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
7.3. LEGAL PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . -7-
7.4. SPECIAL ASSESSMENTS. . . . . . . . . . . . . . . . . . . . . . . -8-
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7.4.1. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
7.5. BINDING OBLIGATION . . . . . . . . . . . . . . . . . . . . . . . -8-
7.6. NO VIOLATION OF LAW. . . . . . . . . . . . . . . . . . . . . . . -8-
7.7. ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . . . . . . -8-
7.8. EXISTING LEASES. . . . . . . . . . . . . . . . . . . . . . . . . -8-
7.9. GAMING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
8. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
9. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
9.1. PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
9.2. CONTEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
9.3. SUBSTITUTE TAXES . . . . . . . . . . . . . . . . . . . . . . . . -10-
9.4. INSTALLMENT PAYMENTS . . . . . . . . . . . . . . . . . . . . . . -10-
10. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
10.1. FIRE INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . -10-
10.2. LIABILITY INSURANCE. . . . . . . . . . . . . . . . . . . . . . . -11-
10.3. WORKER'S COMPENSATION. . . . . . . . . . . . . . . . . . . . . . -11-
10.4. POLICY REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . -11-
11. REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
12. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.1. LANDLORD CONSENT . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.2. PERMITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.3. TENANT'S ARCHITECT . . . . . . . . . . . . . . . . . . . . . . . -12-
12.4. CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.5. INSPECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.6. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
12.7. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
13. EQUIPMENT, FIXTURES AND SIGNS . . . . . . . . . . . . . . . . . . . . . -13-
13.1. EQUIPMENT AND FIXTURES . . . . . . . . . . . . . . . . . . . . . -13-
13.2. PERMITTED SIGNAGE. . . . . . . . . . . . . . . . . . . . . . . . -13-
14. DAMAGE BY FIRE OR OTHER CASUALTY. . . . . . . . . . . . . . . . . . . . -13-
14.1. RESTORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
14.2. USE OF INSURANCE PROCEEDS. . . . . . . . . . . . . . . . . . . . -14-
14.3. ADDITIONAL COST OF RESTORATION . . . . . . . . . . . . . . . . . -14-
14.4. NO RENT ABATEMENT. . . . . . . . . . . . . . . . . . . . . . . . -14-
15. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
15.1. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
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15.2. PARTIAL CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . -15-
15.3. PAYMENT OF AWARD . . . . . . . . . . . . . . . . . . . . . . . . -15-
16. LIABILITY AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . -15-
16.1. TENANT INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . -15-
16.2. LANDLORD INDEMNITY.. . . . . . . . . . . . . . . . . . . . . . . -15-
16.3. NOTICE OF INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . -15-
16.4. SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
17. RIGHT OF INSPECTION . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
18. WARRANTY OF TITLE AND QUIET ENJOYMENT . . . . . . . . . . . . . . . . . -16-
18.1. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . -16-
18.2. ENCUMBRANCES . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
18.3. TRANSFER BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . -17-
19. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . -17-
20. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
21. NO BROKERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
22. LANDLORD-TENANT RELATIONSHIP. . . . . . . . . . . . . . . . . . . . . . -17-
23. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . -18-
23.1. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . -18-
23.2. NO RELEASE OR NOVATION . . . . . . . . . . . . . . . . . . . . . -18-
23.3. ENCUMBRANCE OR ASSIGNMENT AS SECURITY. . . . . . . . . . . . . . -18-
24. NOTICES AND PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . -24-
25. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
25.1. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . -26-
25.2. LANDLORD'S REMEDIES. . . . . . . . . . . . . . . . . . . . . . . -26-
26. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
26.1. COVENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
26.2. RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . . . . . . . -28-
26.3. INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
26.4. HAZARDOUS SUBSTANCES DEFINED . . . . . . . . . . . . . . . . . . -29-
27. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
27.1. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
27.2. CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
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27.3. MEANINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.4. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . -30-
27.5. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.6. TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.7. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.8. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.9. ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . -30-
27.10. MEMORANDUM OF LEASE. . . . . . . . . . . . . . . . . . . . . . . -30-
27.11. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . -30-
28. GAMING PROVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
28.1. COOPERATION AND COMPLIANCE BY LANDLORD . . . . . . . . . . . . . -31-
28.2. DENIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
28.3. PURCHASE RIGHT . . . . . . . . . . . . . . . . . . . . . . . . . -31-
29. ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
30. ADJUSTMENT UPON DEMOLITION. . . . . . . . . . . . . . . . . . . . . . . -34-
31. LANDLORD'S SECURITY INTEREST. . . . . . . . . . . . . . . . . . . . . . -34-
31.1. GRANT OF SECURITY INTEREST IN PROJECT PARCELS. . . . . . . . . . -34-
31.2. GRANT OF SECURITY INTERESTS IN FURNITURE, FIXTURES AND
EQUIPMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
31.3. PERFECTION AND PRIORITY. . . . . . . . . . . . . . . . . . . . . -35-
31.4. FAIR MARKET VALUE. . . . . . . . . . . . . . . . . . . . . . . . -36-
31.5. FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . -36-
32. TENANT'S OPTION AND RIGHT OF FIRST REFUSAL TO PURCHASE THE LEASED
PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
33. BINDING OBLIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
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TABLE OF EXHIBITS
Exhibit A The Land
Exhibit B Schedule of Leases
Exhibit C Permitted Exceptions
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LEASE AGREEMENT
This Lease Agreement (the "LEASE") is made and entered into by and between
XXXXXXX X. XXXXXX and XXXX XXXXXX, trustees of the Xxxxxxx X. Xxxxxx and Xxxx
Xxxxxx Family Trust, u/a/d July 14, 1993, as amended (collectively, "LANDLORD"),
and BOARDWALK CASINO, INC., a Nevada corporation ("TENANT") as of the ____ day
of September, 1996, to take effect on October 1, 1996 (hereinafter, the
"EFFECTIVE DATE").
W I T N E S S E T H :
1. PREMISES AND TERM.
1.1. PREMISES. In consideration of the obligation of Tenant to pay
rent as hereinafter provided and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby demises and leases to
Tenant, and Tenant hereby takes from Landlord, those certain tracts or
parcels of land located in the County of Xxxxx, State of Nevada, and more
particularly described on Exhibit A attached hereto and made a part hereof
(the "LAND"), together with any buildings and other improvements erected or
to be erected thereon (the "IMPROVEMENTS"), and together with all rights,
privileges, easements and appurtenances belonging or in any way pertaining to
the Land (all of the foregoing hereinafter collectively referred to as the
"LEASED PREMISES").
The Leased Premises is now subject to one (1) existing lease and certain
month to month tenancies (collectively the "Existing Leases") as are more
fully described in the Schedule of Leases attached hereto as Exhibit B.
Subject to the following terms of this paragraph, Landlord hereby assigns its
rights and obligation, including any and all security deposits, under the
EXISTING LEASES to Tenant. Tenant will assume the Existing Leases and
indemnify and hold Landlord harmless from any claims arising out of any
breach of the Existing Leases by Tenant which occur from and after the
Effective Date. All rents accruing and received under the Existing Leases
from and after the Effective Date and during the term of this Lease shall be
paid to Tenant; provided, however, that rents received by Tenant pursuant to
the Existing Leases shall first be applied against any rents which became due
and payable during the thirty (30) day period preceding the Effective Date,
and the same shall be paid to Landlord. Concurrently herewith, Landlord
shall provide Tenant with a certificate showing any delinquent or past due
rents under the Existing Leases.
1.2. TERM. The term of this Lease shall commence upon the Effective
Date and shall continue, unless sooner terminated pursuant to the provisions
of this Lease, for twenty-four (24) months (the "LEASE TERM").
1.3. OPTION TERM. Provided Tenant is not then in default beyond any
applicable cure period in the payment of Rent (defined below) or any other
obligation of Tenant to be performed under this Lease, Tenant shall have the
option to extend the Lease Term for an additional five
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(5) years and a second, successive, option to extend the Lease Term an
additional twenty-three (23) years (the "OPTION TERMS"). Such options shall
be exercised, if at all, by written notice to Landlord not later than three
months prior to the expiration of the Lease Term, or preceding Option Term.
If Tenant fails to exercise any option in a timely manner as provided herein,
the provisions of this Section 1.3 shall have no further force or effect.
1.4. DEFINITION OF "LEASE TERM" FOLLOWING EXERCISE OF OPTION. In the
event Tenant exercises one, or more Options in a timely manner as provided
herein, thereafter, the definition of the term "Lease Term" in this Lease
shall be deemed to include such Option the Extension Term, or terms, as
appropriate.
1.5. NO REPRESENTATIONS. Landlord makes no representations or
warranties concerning the Leased Premises or any matters with respect
thereto, except as expressly stated herein. Except for such representations,
Tenant is entering into this Lease based on its own investigation and
analysis of the Leased Premises and accepts the Leased Premises "as is".
2. MATERIAL MODIFICATIONS.
2.1. APPROVAL OF PLANS AND SPECIFICATIONS. In the event Tenant desires
to make any material modification to the Improvements during the Lease Term,
Tenant shall deliver to Landlord for approval plans, specifications, and
renderings depicting Tenant's proposed modifications. For purposes of this
requirement, a modification shall be deemed material if its cost to implement
exceeds Fifty Thousand Dollars ($50,000) (a "MATERIAL MODIFICATION"). Within
a period of thirty (30) days from the date of delivery of such plans,
specifications, and renderings, Landlord shall either approve the same or
specify its objections thereto and reasons therefor in detail and shall
specify whether such modifications must be removed upon the expiration, or
earlier termination of this Lease by written notice delivered to Tenant on or
before the end of the thirty (30) day period. In the event Landlord shall
specify objections to any Material Modification proposed by Tenant then
Tenant shall either abandon its plan to modify the Leased Premises or shall
promptly revise the plans, specifications, and renderings to fully
accommodate and conform to Landlord's written objections, subject to the
terms of any written agreements between Landlord and Tenant as to the manner
in which any of such objections may be accommodated to the mutual
satisfaction of Landlord and Tenant. Any revision which is approved by
Landlord shall be signed by Landlord and Tenant and shall thereafter be
deemed a part hereof. Within one hundred eighty (180) days after completion
of any Material Modification, Tenant shall deliver a complete set of as-built
plans for the approved improvements to Landlord.
2.2. LANDLORD'S IMPROVEMENT WORK. Landlord shall have no obligation
whatsoever to improve or alter the Land nor to demolish any improvements
which may now be located upon the Land.
2.3. SUPERVISING ARCHITECT AND GENERAL CONTRACTOR. Selection of a
supervising architect and general contractor shall be made by Tenant. The
supervising architect shall be a
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member in good standing of the American Institute of Architects or any
generally recognized similar organization, duly licensed in the state of
Nevada, or affiliated with an architect licensed in Nevada, if required for
governmental approvals with respect to any proposed renovation, or
construction on the Premises and, if applicable, the general contractor's
financial condition and responsibility shall be such as to enable Tenant to
obtain the completion bond required by the following Section 2.4.
2.4. COMPLETION BOND. Prior to undertaking any Material Modification,
Tenant shall provide Landlord with a completion bond, acceptable to Landlord,
in the amount of the projected cost of constructing the proposed
improvements, and the amount of such bond shall be increased from time to
time to reflect any increases in the projected cost of such construction.
Tenant shall, upon request from Landlord, name Landlord's assignee and/or
lender, if any, as co-obligee on any such bond.
2.5. COMMENCEMENT OF TENANT'S CONSTRUCTION. Within thirty (30) days
after any material portion of the Improvements has been demolished (other
than as a result of fire or other casualty), Tenant shall commence the
construction of the Material Modification and thereafter proceed with
construction with all reasonable diligence and in a good and workmanlike
manner.
2.6. LIABILITY. Tenant covenants and agrees that any modification of
the Improvements shall be constructed, operated, repaired and maintained
without cost or expense to Landlord and in accordance with the requirements
of all laws, ordinances, codes, orders, rules and regulations of all
governmental authorities having jurisdiction over the Leased Premises and in
a good and workmanlike manner. Tenant agrees to defend, indemnify and hold
Landlord, its trustees, beneficiaries, heirs, successors, assigns, agents,
employees and attorneys harmless from and against any and all cost,
liability, expense, damage or injury resulting from or arising in connection
with the construction, operation, repair and maintenance of the Material
Modifications.
2.7. INSURANCE. Prior to commencing any demolition or construction on
the Leased Premises, Tenant, its subcontractors and agents, without cost to
Landlord, shall obtain Builder's Risk Insurance covering such project and
approved improvements to the full extent of the insurable value thereof, and
Tenant shall cause its contractor to obtain or cause to be obtained workers'
compensation insurance covering all persons employed in connection with such
demolition or construction and with respect to whom death or bodily injury
claims could be asserted against Landlord, Tenant or the Leased Premises.
Tenant shall also obtain General Liability Insurance naming both Landlord and
Tenant as co-insureds for the mutual benefit of Landlord, Tenant and the
Leased Premises. All of the aforementioned policies shall be in the form and
shall contain the liability limits specified in Article 10 hereof. Tenant
and its contractors and subcontractors shall have the right, however, to
self-insure with respect to its workers' compensation insurance obligations
to the extent permitted by applicable law.
2.8. NO SUBORDINATION OF LANDLORD'S FEE TITLE. Landlord shall not be
required to subordinate Landlord's fee interest in the Leased Premises or its
reversionary interest in the
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buildings and improvements now existing or to be constructed thereon to any
lien securing Tenant's construction loan or other financing.
2.9. NOTICE OF NON-RESPONSIBILITY. Landlord may, at Landlord's sole
discretion, record a Notice of Non-Responsibility to assure that Landlord's
interest in the Leased Premises cannot be encumbered by mechanics' liens or
materialmen's liens arising from Tenant's construction activity upon the
Leased Premises. With respect to any work to be commenced by or on behalf of
Tenant, at least ten (10) days before any such work is commenced (or such
additional time as may be reasonably required by Landlord in the future to
reflect changes in the law with respect to posting and/or recording notices
of non-responsibility), Tenant shall notify Landlord of Tenant's intention to
commence any such work.
2.10. LIENS AND FEES. Tenant shall at all times indemnify, save and
hold harmless Landlord and Landlord's trustees, beneficiaries, heirs,
successors, assigns, agents, employees and representatives and the Leased
Premises from and against all liens or claims which may ripen into liens, and
against all reasonable attorneys' fees incurred by Landlord and other costs
and expenses, growing out of or incurred by reason of or with respect to any
demolition or construction done by or for Tenant on the Leased Premises.
Should Tenant fail to fully discharge any such lien or claim, or in the
alternative fail to post a bond sufficient to discharge such lien or claim
within thirty (30) days after written request therefor by Landlord, then
Landlord may, at its option, (i) treat such failure as an Event of Default
pursuant to Paragraph 25.1. Nothing herein shall preclude Tenant from
contesting, at its sole cost and expense, any such claims, or liens.
2.11. OWNERSHIP OF IMPROVEMENTS AND TENANT'S PERSONAL PROPERTY. During
the term of this Lease all trade fixtures and equipment (collectively,
"TENANT'S PERSONAL PROPERTY") shall remain and continue to be the property of
Tenant and may be replaced at any time and from time to time during the term
of this Lease. Tenant's Personal Property may be removed at the expiration
or earlier termination of this Lease if Tenant repairs any damage to the
Improvements caused by such removal and the removal does not affect or in any
way weaken the structural integrity of the Improvements. All Improvements
shall remain on the Leased Premises and automatically become the property of
Landlord upon the expiration or earlier termination of this Lease unless
Landlord gives written notice to Tenant at the time such improvements are
first approved by Landlord, that any or all such Improvements are to be
removed, in which case Tenant shall remove the same and regrade the Land to a
finish grade in accordance with Landlord's reasonable requirements, at
Tenant's sole cost and expense, within sixty (60) days of the expiration or
earlier termination of this Lease or notice from Landlord, whichever is
later, as to that portion of the Leased Premises upon which such Improvement
to be removed is situated.
2.12. LAND USE MATTERS. Provided Landlord's written consent has first
been obtained (which consent will not be withheld if Tenant demonstrates to
Landlord's reasonable satisfaction that the matters described in or contemplated
by this paragraph would not at any time materially adversely affect Landlord's
use or development of the Leased Premises upon the expiration or
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earlier termination of this Lease, and provided, further, that no Event of
Default then exists), Tenant, at its sole expense and without cost or expense
to Landlord, may apply for and obtain subdivisions, parcel maps, use permits
or zoning changes or variances with respect to the Leased Premises. Subject
to such requirement of prior written consent, and subject to Landlord's
right, at Landlord's cost, to have Landlord's planning and zoning counsel
participate with Tenant in all such matters, Landlord shall, upon notice of
request by Tenant, join with Tenant as necessary in any applications to
obtain such subdivisions, parcel maps, use permits or use or zoning changes
or variances, all at Tenant's expense and without cost or expense to Landlord.
3. RENT AND SECURITY DEPOSIT.
3.1. BASE RENT. For the period beginning upon the Effective Date and
continuing during the Lease Term, Tenant shall pay, in monthly installments,
a base rent of EIGHT HUNDRED FORTY THOUSAND AND NO/100 DOLLARS ($840,000.00)
per annum ($70,000.00 per month) (the "BASE RENT").
Base Rent shall be paid to Landlord in lawful money of the United States
on the first day of each calendar month during the Lease Term, without any
reduction, deduction or setoff; provided that the first installment of Base
Rent shall be due and payable upon the Effective Date. Base Rent for any
partial calendar month during which the Lease Term commences or terminates
shall be prorated based on the actual number of days in such month.
3.2. INCREASES IN BASE RENT. Beginning on the first day of the calendar
month which is the sixty-first (61st) month following the Effective Date, and
upon the same day of each year thereafter during the Lease Term, or any Option
Term (hereinafter, an "ADJUSTMENT DATE"), the Base Rent shall be increased to an
amount equal to the product of the Base Rent payable during the immediately
preceding calendar month multiplied by the Cost of Living Factor. The "COST OF
LIVING FACTOR" for any Adjustment Date during the Lease Term shall be a fraction
whose numerator is the index figure stated as the Consumer Price Index for All
Urban Consumers (CPI-U; U.S. City Average; All Items 1982-84=100) published by
the Bureau of Statistics of the United States Department of Labor (the "INDEX")
for the month in which the Adjustment Date occurs (or the most recent available
Index if the Index for the month in which the Adjustment Date occurs is not
available) and whose denominator is the Index in effect on the Effective Date,
in the case of the first adjustment hereunder, or the Index used for the
immediately preceding Adjustment Date, in the case of all adjustments after the
first adjustment hereunder. If the Index is discontinued, the Cost of Living
Factor shall be based on comparable statistics on changes in the purchasing
power of the consumer dollar for the applicable periods, as published by a
responsible financial periodical report of a recognized governmental or private
authority then generally recognized for such purposes, all as selected by
Landlord.
3.3. PLACE OF PAYMENT. All payments of Base Rent and other sums due
from Tenant to Landlord pursuant to this Lease (sometimes collectively
referred to herein as "RENT") shall be made to Landlord as the same shall
become due in lawful money of the United States of America at the address
specified in Section 24 of this Lease, or to such other party or at such
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other address as hereinafter may be designated by Landlord by written notice
delivered to Tenant at least ten (10) days prior to the next ensuing monthly
rental payment date.
3.4. SECURITY DEPOSIT. No security deposit shall be required of Tenant.
3.5. INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGES.
3.5.1. INTEREST. Any amount due from Tenant to Landlord which is
not paid on the due date shall bear interest at fifteen percent (15%) per
annum from the date such payment is due until paid, but the payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
3.5.2. LATE CHARGE. In the event Tenant is more than ten (10)
days late in paying any installment of rent or other sum due under this
Lease, Tenant shall pay Landlord a late charge equal to five percent (5%) of
the delinquent amount. The parties agree that the amount of such late charge
represents a reasonable estimate of the cost and expense that would be
incurred by Landlord in processing each delinquent payment by Tenant, but the
payment of such late charge shall not excuse or cure any default by Tenant
under this Lease. The parties further agree that the payment of late charges
and the payment of interest provided for in this Section 3.5 are distinct and
separate from one another in that the payment of interest is to compensate
Landlord for the use of Landlord's money by Tenant, while the payment of a
late charge is to compensate Landlord for the additional administrative
expense incurred by Landlord in handling and processing delinquent payments.
4. HOLDING OVER BY TENANT. Should Tenant or any assignee, sublessee
or licensee of Tenant fail to vacate the Leased Premises or any part thereof
after the expiration or earlier termination of the Lease Term, unless
otherwise agreed in writing, such failure to vacate shall constitute and be
construed as a tenancy from month-to-month upon the same terms and conditions
as set forth in this Lease; provided, however, that Tenant shall pay as Base
Rent during any holding over period, an amount equal to one and 50/100 (1.50)
times the Base Rent payable immediately preceding the expiration of the Lease
Term. Nothing contained in this Article 4 shall be construed as a consent by
Landlord to any holding over by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Leased Premises upon
the expiration of the Lease Term or upon the earlier termination hereof and
to assert any remedy in law or equity to evict Tenant and/or collect damages
in connection with such holding over.
5. LEASEHOLD TITLE INSURANCE. Tenant shall, at Tenant's expense,
obtain a leasehold title insurance policy through National Title Company, a
Nevada corporation ("ESCROW AGENT") insuring Tenant's interest in the Leased
Premises subject only to standard title policy exceptions and to those title
exceptions set forth on Exhibit "C" attached hereto and made a part hereof
(hereinafter, "PERMITTED EXCEPTIONS").
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6. USES.
6.1. PERMITTED USE. Tenant shall have the right to develop the Leased
Premises for any lawful use. Tenant shall have the right to use and develop
the Leased Premises in conjunction with adjoining property, subject to
Article 31 below. If any governmental license or permit is required for the
lawful conduct of any business or other activity carried on by Tenant in the
Leased Premises, and if the failure to obtain such license or permit would
affect Landlord, Tenant shall procure and maintain such license or permit so
long as the same is so required, make such license or permit available for
inspection, if practicable, by Landlord and comply at all times with all
terms and conditions thereof.
6.2. PROHIBITED USES. Tenant covenants and agrees that it will not use
or suffer or permit any person or persons to use the Leased Premises or any
part thereof for any use or purpose in violation of the laws of the United
States of America or the laws, ordinances, regulations and requirements of
the State of Nevada, Xxxxx County or other lawful authorities having
jurisdiction. Nothing contained herein shall be deemed to prevent Tenant
from contesting the application or interpretation of such laws or the
determinations of any such lawful authority so long as (i) Landlord is given
written notice thereof prior to the commencement of any such contest; (ii)
such contest is prosecuted by Tenant with all reasonable diligence; and (iii)
Tenant provides Landlord with such assurances or security as Landlord may
reasonably require so that neither the Leased Premises nor Landlord's rights
under this Lease may be adversely affected by such contest.
Tenant shall promptly upon demand by Landlord reimburse Landlord for any
additional premium charged for any insurance policy by reason of Tenant's
failure to comply with the provisions of this Article 6.
7. REPRESENTATIONS AND COVENANTS OF LANDLORD. As of the Effective
Date of this Lease, Landlord represents, warrants and covenants to Tenant as
follows:
7.1. TITLE. That Landlord has good and marketable fee simple title to
the Leased Premises, subject to those exceptions which are set forth in
Exhibit "B" and such other matters as would be disclosed by an ALTA survey of
the Leased Premises, possesses full power and authority to deal therewith in
all respects and no other party has any right or option thereto or in
connection therewith;
7.2. CONDEMNATION. That there are no pending or, to the knowledge of
Landlord, threatened condemnation proceedings or actions affecting the Leased
Premises;
7.3. LEGAL PROCEEDINGS. That there are no pending or, to the knowledge
of Landlord, threatened actions or legal proceedings which could adversely
affect the Leased Premises or Tenant's rights under this Lease.
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7.4. SPECIAL ASSESSMENTS. There are no unpaid special assessments for
sewer, sidewalk, water, paving, electrical or power improvements or other
capital expenditures or improvements, matured or unmatured, except the
special assessment of record for the Xxxxx County Beautification District
improvement project pertaining to certain improvements to Las Vegas
Boulevard, South.
7.4.1. TAXES. Real property taxes for the fiscal year 1996 -
1997 are current through the first quarter, 1996.
7.5. BINDING OBLIGATION. That this Lease and the consummation of the
transactions contemplated hereby is valid and binding upon Landlord (and the
individuals executing this Lease on behalf of Landlord represent and warrant
that they are authorized to so act) and does not constitute a default (or an
event which with notice or passage of time or both will constitute default)
under any contract to which Landlord is a party or by which Landlord is bound;
7.6. NO VIOLATION OF LAW. That Landlord has not received notice nor
has Landlord any knowledge of any violation of any law, regulation,
ordinance, order or other requirement of any governmental authority having
jurisdiction over or affecting any part of the Leased Premises;
7.7. ENVIRONMENTAL MATTERS. Landlord has no actual knowledge of any
noncompliance or violation of local, state or federal environmental laws
related to the Leased Premises;
7.8. EXISTING LEASES. The Schedule of Leases attached hereto as
Exhibit B is a true, correct and complete statement of all leases, and/or
accurate description of all tenancies to which the Premises is subject and
Landlord is not in default and is not aware of any default by the tenants
under the Existing Leases. The lease agreement by and between Landlord and
Xxxx X. Xxx, as amended, and the assignment and assumption agreement by and
between Xxxx X. Xxx and IGT, Inc., and the sublease agreement by and between
IGT, Inc. and Schiff Enterprises, LP, heretofore provided to Tenant, are
true, correct and complete copies of said lease agreement, assignment and
assumption agreement and sublease agreement; and
7.9. GAMING. Neither Landlord nor, to the best of Landlord's knowledge
(without investigation), any person or entity associated with Landlord has
ever engaged in any conduct or practices which any of the foregoing persons
should reasonably believe would cause Landlord to be denied any gaming or
other governmental approval which may be required for Tenant to operate its
business upon the Leased Premises.
8. UTILITIES. Tenant shall pay all charges incurred for the use of
utility services at the Leased Premises including, without limitation, gas,
electricity, water, sanitary sewer, storm sewer, cable television, and
telephone. If any of such charges are not separately assessed against the
Leased Premises, Tenant shall pay its pro rata share of such charges, as
reasonably determined by Landlord, within ten (10) days after receipt of
written demand therefor from
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Landlord. Tenant shall pay all utility connection charges, including,
without limitation, any sewer "hook-up" fees and similar charges.
9. TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL IMPOSITIONS.
9.1. PAYMENT. Subject to the following sentence, Tenant shall pay,
within thirty (30) days after written demand from Landlord, all real estate
taxes, assessments (both general and special) and other governmental
impositions which are levied against the Leased Premises, specifically
including, without limitation, all payments due with respect to the Las Vegas
Strip Beautification Project; provided that Tenant shall have no obligation
to pay any of such taxes, assessments and impositions more than ten (10) days
prior to the date the same are due to the taxing authority, and provided,
further, that to the extent the tenants under the Existing Leases are
required to pay the same, compliance with such leases shall constitute
compliance hereunder. Tenant's obligations under this Section 9.1 shall
extend only to taxes, assessments and impositions which are properly
allocable to the Lease Term. Any such tax, assessment, imposition or other
similar expense which is properly allocable to any period prior to the
Effective Date shall be the obligation of the Landlord or tenants under the
Existing Leases.
9.2. CONTEST. Tenant may, if it shall so desire, contest the validity
or amount of any tax or assessment against the Leased Premises, in which
event Tenant may defer the payment thereof during the pendency of such
contest if applicable law so permits; provided, however, that Tenant shall
not allow any tax lien to be foreclosed on the Leased Premises, and, unless
such tax is paid under protest, not later than ten (10) days prior to the
date the same shall become delinquent, Tenant shall have (i) deposited with a
bank or trust company acceptable to Landlord, an amount sufficient to pay
such contested item(s) together with the interest and penalties thereon (as
reasonably estimated by Landlord) with written instructions to said bank or
trust company to apply such amount to the payment of such item(s) when the
amount thereof shall be finally fixed and determined (with the remainder to
be paid to Tenant), or (ii) provided Landlord with other reasonably
acceptable security. Landlord will, at the request of Tenant, cooperate with
Tenant in contesting any such taxes or assessments; provided, however, there
shall be no expense to Landlord in such cooperation. In the event Landlord
is required by law to join in any action or proceeding taken by Tenant to
contest any such taxes or assessments, Tenant shall indemnify, defend and
hold Landlord and Landlord's trustees, beneficiaries, heirs, successors,
assigns, agents, employees and representatives harmless from any and all
costs, fees (including, but not limited to attorneys' fees), expenses,
claims, judgments, orders, liabilities, losses or damage arising out of such
action or proceeding.
If, at any time, in the judgment of Landlord reasonably exercised, it
shall become necessary so to do, Landlord, after written notice to Tenant,
may, under protest if so requested by Tenant, pay such monies as may be
required to prevent the transfer of the Leased Premises to the Xxxxx County
Treasurer or the sale of the Leased Premises or any part thereof, or
foreclosure of the lien created thereon by such item, and such amount shall
become immediately due and payable by Tenant to Landlord, together with
interest thereon at the rate of fifteen percent (15%) per annum, and shall
constitute additional rent hereunder, or at Tenant's option
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and at Tenant's sole cost and expense, in lieu thereof, Tenant shall obtain
lien release bonds in amounts equal to the claims of any such liens or as
otherwise required by applicable law to obtain the full release of such liens.
9.3. SUBSTITUTE TAXES. Notwithstanding anything herein to the
contrary, if at any time during the Lease Term there shall be levied or
assessed in substitution of real estate taxes, in whole or in part, a tax,
assessment or governmental imposition (other than a general gross receipts or
income tax) on the rents received from the Leased Premises or the rents
reserved herein, and said tax, assessment or governmental imposition shall be
imposed upon Landlord and is properly allocable to the Lease Term, Tenant
shall pay same as hereinabove provided, but only to the extent that such new
tax, assessment or governmental imposition is a substitute for real estate
taxes previously imposed.
9.4. INSTALLMENT PAYMENTS. Notwithstanding anything herein to the
contrary, if at any time during the Lease Term any assessment (either general
or special) is levied upon or assessed against the Leased Premises or any
part thereof, and such assessment may be paid in installments, and if Tenant
elects to pay such assessment in installments, Tenant's obligation under this
paragraph to pay such assessment shall be limited to the amount of such
installments (plus applicable interest thereon charged by the taxing
authority, if any) which is properly allocable to the Lease Term.
10. INSURANCE.
10.1. FIRE INSURANCE. Tenant shall maintain and pay for at its sole
cost and expense so called "all risk" fire and extended coverage insurance
(including vandalism and malicious mischief insurance, earthquake insurance
and flood insurance) on the Leased Premises, with a limit of or in an amount
not less than one hundred percent (100%) of the replacement value thereof,
less the cost of excavations, foundation, footings and underground tanks,
conduits, pipes, pilings and other underground items. Payments for losses
shall be made to a third party escrow or construction control account which
is reasonably acceptable to Landlord and Tenant (and, if applicable, any
Leasehold Mortgagee named as loss payee hereunder), and shall be disbursed
from such account to Tenant and Tenant's contractors to pay for the
restoration of the Improvements in accordance with the provisions of this
Lease. Tenant may include the holder of any Leasehold Mortgage as a loss
payee provided that the proceeds of such insurance required hereunder shall
be used for the repair and reconstruction of the Improvements, subject only
to conditions permitted pursuant to Section 23.4. Any such Leasehold
Mortgagee which is named as loss payee shall be deemed an acceptable
construction control escrow for purposes of this Section 10.1.
The full replacement value of the items to be insured under this Section
10.1 shall be determined by the company issuing the insurance policy at the
time the policy is initially obtained. Not more frequently than once every
year, Landlord shall have the right to notify Tenant that it elects to have
the replacement value redetermined by the insurance company. The
redetermination shall be made promptly and in accordance with the rules and
practices of the
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Board of Fire Underwriters or a like board recognized and generally accepted
by the insurance company, and each party shall be promptly notified of the
results by the company. The insurance policy shall be adjusted according to
the redetermination.
10.2. LIABILITY INSURANCE. Tenant shall also insure at its sole cost
and expense against property damage and public liability arising by reason of
occurrences on or about the Leased Premises by maintaining a policy or
policies of commercial general liability insurance including contractual
liability coverage insuring against the tort liabilities assumed under this
Lease, on an "occurrence" basis, with a primary liability limit of not less
than FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00), and an excess coverage
limit of not less than TWENTY MILLION DOLLARS ($20,000,000). Not more
frequently than once each year, if, in the opinion of Landlord's lender or of
the insurance broker retained by Landlord, the amount of public liability and
property damage insurance coverage at that time is not adequate, Tenant shall
increase the insurance coverage as required by Landlord's lender or as may be
reasonably required by Landlord's insurance broker.
10.3. WORKER'S COMPENSATION. Tenant shall maintain (at its sole cost
and expense) workers' compensation and employers' liability insurance
covering all of its employees as required of the laws of the State of Nevada.
Tenant shall have the right to self-insure with respect to such required
coverage to the extent permitted by applicable law.
10.4. POLICY REQUIREMENTS. Except for workers' compensation insurance,
all insurance policies required to be maintained by Tenant hereunder shall be
with responsible insurance companies, authorized to do business in the State
of Nevada if required by law, and, except for workers' compensation policies,
shall name Landlord as an additional insured or, with respect to property
insurance to be maintained pursuant to Section 10.1 above, loss payee, as its
interests may appear, and shall provide for cancellation only upon thirty
(30) days prior written notice to Landlord. Except for workers' compensation
insurance, Tenant shall evidence all insurance coverage by delivering to
Landlord, prior to taking possession of the Land, and thereafter from time to
time upon request by Landlord, certificates issued by the insurance
companies, if any, underwriting such risks. Except for workers' compensation
insurance, Tenant shall, at least ten (10) days prior to the expiration of
any such policy, furnish Landlord with renewals or "binders" thereof or
certificates evidencing the same, or Landlord may order such insurance and
charge the cost thereof to Tenant, which amount shall be payable by Tenant
upon demand as additional rent, together with interest thereon at the rate of
fifteen percent (15%) per annum. With respect to workers' compensation
insurance, Tenant shall furnish Landlord with reasonable evidence that Tenant
has complied with its obligations under this Lease.
11. REPAIRS. Tenant shall maintain and take good care of the Leased
Premises (including any Improvements constructed by Tenant) at its sole cost
and expense during the Lease Term and any Option Terms and shall maintain the
same in a first class condition and state of repair, including repairs to the
interior, exterior and structure, it being understood that Landlord shall not
be required to make any repairs to the Leased Premises during the Lease
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Term. At the end or other termination of this Lease, and subject to Section
2.11 and Section 14.1 of this Lease, Tenant shall deliver up the Land with
the Improvements thereon in good repair and condition, ordinary wear and
tear, depreciation and obsolescence being excepted.
12. ALTERATIONS. Tenant shall have the right to make, at its sole
cost and expense, additions, alterations and changes involving a cost of less
than FIFTY THOUSAND DOLLARS ($50,000.00) (hereinafter referred to as
"ALTERATIONS") in or to the Improvements, provided Tenant shall not then be
in default in the performance of any of Tenant's covenants or agreements in
this Lease, and subject to the following conditions:
12.1. LANDLORD CONSENT. Tenant shall have given written notice to
Landlord at least ten (10) days prior to the commencement of such Alterations
and no Alterations of any kind which would cause the Improvements to
materially deviate from plans, specifications, and renderings approved by
Landlord shall be made without the prior written consent of Landlord.
12.2. PERMITS. No Alterations shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required, from time to
time, all required permits and authorizations of Xxxxx County and other
governmental authorities having jurisdiction.
12.3. TENANT'S ARCHITECT. Any structural Alteration shall be conducted
under the supervision of an architect (otherwise qualified under Section 2.3
above) or engineer selected by Tenant and no such Alteration shall be made
except in accordance with detailed plans and specifications prepared and
approved in writing by such architect or engineer. Any and all such
Alterations shall conform, in all material respects, to the plans,
specifications, and renderings approved by Landlord.
12.4. CONSTRUCTION. All Alterations shall be pursued promptly to
completion and shall be done in a good and workmanlike manner and in
compliance with all applicable permits and authorizations and building and
zoning laws and with all other laws, ordinances, orders, rules, regulations
and requirements of all federal, state and local governments, departments,
commissions, boards and officers.
12.5. INSPECTION. During the course of any Alterations, and subject to
applicable laws and to Tenant's security policies, Landlord shall have the
right to go upon and inspect the Improvements at all reasonable times and
upon reasonable notice and shall have the right to post and keep posted
thereon notices of non-responsibility or such other notices which Landlord
may deem to be proper for the protection of Landlord's interest in the Leased
Premises in such a manner as not to interfere with Tenant's construction.
12.6. LIENS. Tenant shall indemnify, defend, satisfy and hold harmless
Landlord and Landlord's trustees, beneficiaries, heirs, successors, assigns,
agents, employees and representatives from and against all claims, attorneys'
fees and other costs and expenses growing out of or incurred by reason of or
with respect to liens for labor or materials supplied or claimed to be
supplied in connection with Alterations done by or for Tenant. Should Tenant
fail to fully
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discharge any such lien or claim, or in the alternative fail to post a bond
sufficient to discharge such lien or claim within thirty (30) days after
written request therefor by Landlord, then Landlord, at its option, may treat
such failure as an Event of Default pursuant to paragraph 25.1. Nothing
herein shall prevent Tenant from contesting, at its sole cost and expense,
any such claims, or liens.
12.7. INSURANCE. Prior to making any material Alterations to any
building or work of improvement, Tenant and Tenant's subcontractors and
agents shall obtain Workers' Compensation and Builder's Risk and Liability
Insurance in such amounts and form as required by Section 2.7 hereof.
13. EQUIPMENT, FIXTURES AND SIGNS.
13.1. EQUIPMENT AND FIXTURES. Tenant shall have the right to erect,
install, maintain and operate on the Leased Premises such equipment, trade
and business fixtures, and other personal property as Tenant may deem
necessary or appropriate, and such shall not be deemed to be part of the
Leased Premises, but shall remain the property of Tenant, as provided in
Section 2.11 above. Any such installations shall not materially injure or
deface the Improvements. At any time during the Lease Term and within thirty
(30) days after termination hereof, Tenant shall have the right to remove its
equipment, fixtures, signs and other personal property from the Leased
Premises provided that Tenant is not then in default. Tenant's Personal
Property may be removed at the expiration or earlier termination of this
Lease if Tenant repairs any damage to the Improvements caused by such removal
and the removal does not affect or in any way weaken the structural integrity
of the Improvements; provided that such repair shall not be required and the
structural integrity of the Improvements may be affected or weakened, if
Landlord requires that the Improvements be removed from the Land, and if
Tenant removes the Improvements pursuant to Section 2.11 above. The
foregoing provisions of this Section 13.1 are subject to Landlord's security
interest in Tenant's "FF&E," as provided in Article 31 below; provided that
nothing herein shall be deemed to limit Tenant's right to dispose of items of
Tenant's Personal Property in the ordinary course of Tenant's business, so
long as Tenant maintains Personal Property which is at all times sufficient
for the operation of the Improvements.
13.2. PERMITTED SIGNAGE. Tenant shall be entitled to such signage as
may be permitted under applicable law. Tenant's rights under this Section
13.2 are subject to Tenant's receipt of any and all necessary governmental
approvals, permits and consents.
14. DAMAGE BY FIRE OR OTHER CASUALTY.
14.1. RESTORATION. Except as otherwise provided in this Section 14.1,
Tenant shall repair, at Tenant's cost, any damage to Improvements (except any
damage for which no insurance coverage was obtainable). In the event all or
any substantial portion of the Improvements shall be damaged or destroyed in
whole or in part by fire or any other casualty such that the cost to repair
and restore the Improvement exceeds ten percent (10%) of the
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replacement cost of the Improvements, Tenant shall, at Tenant's option either
(i) proceed diligently to repair or rebuild the Improvements as nearly as
possible to the value, condition, quality and character immediately prior to
such damage or destruction, subject to Tenant's right to alter the same in
accordance with Article 12; or (ii) demolish the Improvements and regrade the
Land to finish grade in accordance with Landlord's reasonable requirements.
14.2. USE OF INSURANCE PROCEEDS. All insurance proceeds with respect to
the Improvements which are paid to Tenant shall, if Tenant elects to rebuild
the Improvements pursuant to Section 14.1, be deposited by Tenant into a
third party escrow or construction control account which is reasonably
acceptable to Landlord and Tenant (and, if applicable, any Leasehold
Mortgagee named as loss payee with respect to such insurance pursuant to
Section 10.1), and shall be disbursed from such account to Tenant and
Tenant's contractor for the payment of the costs of the repair and
restoration of the Improvements. Any such Leasehold Mortgagee which is named
as loss payee shall be an acceptable construction control account for
purposes of this Section 14.2. Notwithstanding the foregoing, if Tenant
elects to demolish the Improvements pursuant to option (ii) of Section 14.1,
all such insurance proceeds which are not required to be paid to a Leasehold
Mortgagee shall be allocated between and distributed to Landlord and Tenant
based upon the remaining unexpired Lease Term as of the date of the
distribution as follows: (i) Tenant shall receive that portion of such
proceeds which is derived by multiplying the amount of available insurance
proceeds by a fraction, the numerator of which is the length of the remaining
unexpired Lease Term (expressed in years) and the denominator of which is
twenty-five (25); and (ii) Landlord shall receive the remaining portion of
such proceeds.
14.3. ADDITIONAL COST OF RESTORATION. If Tenant elects to rebuild the
Improvements pursuant to Section 14.1, and if the insurance proceeds received
by or for the account of Tenant shall be insufficient to pay the entire cost
of such repairs and restoration, Tenant shall supply the amount of any such
deficiency and shall apply the same to the payment of the cost of such repair
and restoration. Under no circumstances shall Landlord be obligated to make
any payment or contribution towards the cost of any repairs and restoration.
14.4. NO RENT ABATEMENT. There shall be no abatement of rent as a
result of any casualty, including without limitation, during the period of
repair and rebuilding of the Leased Premises.
15. CONDEMNATION.
15.1. TERMINATION. If all of the Leased Premises (or if less than all,
but the remaining portion will not permit Tenant to operate its business on
the Leased Premises, with sufficient parking therefor), shall be acquired by
the right of condemnation or eminent domain for any public or quasi-public
use or purpose, or sold to a condemning authority under threat of
condemnation or in lieu thereof, then the Lease Term shall cease and
terminate as of the date of title vesting in such proceeding (or sale) and
all rent shall be paid up to that date.
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15.2. PARTIAL CONDEMNATION. In the event of a partial taking or
condemnation which takes less than a substantial portion of the Leased
Premises and if the remaining portion will permit Tenant to operate its
business on the Leased Premises, with sufficient parking therefor, then
Tenant, at Tenant's sole cost and expense, shall proceed with reasonable
diligence to restore the Leased Premises to a condition, to the extent
practicable, comparable to its condition at the time of such condemnation
less the portion lost in the taking, and this Lease shall continue in full
force and effect but with a pro rata reduction of rent.
15.3. PAYMENT OF AWARD. In the event of any condemnation, taking or
sale as aforesaid, whether whole or partial, Landlord and Tenant shall be
entitled to the portion of the award applicable to their respective interests
in the Leased Premises. Nothing contained in this Section 15.3 shall be
deemed to prevent Tenant from seeking a separate award from the taking
authority for the taking of Tenant's personal property and fixtures or for
relocation and business interruption expenses incurred by Tenant as a result
of the taking.
16. LIABILITY AND INDEMNIFICATION.
16.1. TENANT INDEMNITY. Landlord shall not be liable to Tenant or
Tenant's trustees, beneficiaries, heirs, successors, assigns, employees, agents,
patrons or invitees, or any person whomsoever, for any injury to person or
damage to property occurring during the Lease Term, or any Option Term, or which
is caused by or arising as a result of the negligence, or misconduct of Tenant,
its employees or agents, or of any other person (other than Landlord or
Landlord's employees or agents) entering upon the Leased Premises under express
or implied invitation of Tenant, as well as any such damage or injury which is
caused by or which arises as a result of Tenant's breach of this Lease, and
Tenant agrees to indemnify, defend and hold Landlord and Landlord's trustees,
beneficiaries, heirs, successors, assigns, members, agents, employees and
representatives harmless from any liability, loss, claim, damage, cost or
expense suffered or incurred by Landlord by reason of any such damage or injury.
16.2. LANDLORD INDEMNITY. Tenant shall not be liable to Landlord, or
Landlord's trustees, beneficiaries, heirs, successors, assigns, employees,
agents, patrons, or invitees, or any person whomsoever for any injury to person,
or damage to property occurring prior to the Effective Date, or subsequent to
the surrender of the Premises, or arising out of the gross negligence, or
willful misconduct of Landlord and Landlord agrees to indemnify, defend and hold
Tenant and Tenant's trustees, beneficiaries, heirs, successors, assigns, agents,
employees and representatives harmless from any liability, loss, claim, damage,
cost, or expense suffered, or incurred by Tenant by reason of any such damage,
or injury.
16.3. NOTICE OF INDEMNITY. Upon notice of any such claims of liability
for which indemnification is sought pursuant to Sections 16.1, or 16.2, the
indemnifying party, at its election, shall have the right of defense in such
proceedings, by counsel of its own choosing, at its sole cost and expense. The
party claiming indemnity shall cooperate fully in all respects in any such
defense, including, without limitation, by making available all pertinent
information under its control. If the indemnifying party does not notify
indemnified party within ten (10)
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days of notice of a potential claim that the indemnifying party will defend
the same, or should the indemnifying party fail to file any answer or other
pleading at least five (5) days before the same is due, the indemnified party
may defend or settle such claim or action in such manner as it deems
appropriate, in its sole discretion but, to the extent such claim is properly
subject to indemnity pursuant to Sections 16., or 16.2, above, at the sole
cost and expense of the indemnifying party. If the indemnifying party so
notifies the indemnified party concurrently with its notice of election to
defend, it may defend, but not settle, a claim without waiving its right to
assert that such claim is not subject to the indemnity agreement in this
Article 16. The indemnified party may, at its expense, participate in such
matter with counsel of its own choosing.
16.4. SURVIVAL. The provisions of this Article 16 shall survive the
termination of this Lease.
17. RIGHT OF INSPECTION. Subject to applicable laws and Tenant's
reasonable security policies, Landlord and its agents and representatives shall
be entitled to enter upon and inspect the Leased Premises at any time during
normal business hours upon prior reasonable notice (or, in the case of an
emergency, at any time and with or without notice), provided only that such
inspection shall not unreasonably interfere with Tenant's business.
18. WARRANTY OF TITLE AND QUIET ENJOYMENT.
18.1. QUIET ENJOYMENT. Landlord represents and warrants that it is the
owner in fee simple of the Land, and that it alone will have full right to lease
the Leased Premises for the Lease Term set out herein. Landlord further
represents and warrants that Tenant, on paying the rent and performing its
obligations hereunder, shall peaceably and quietly hold and enjoy the Leased
Premises for the Lease Term without any hindrance, molestation or ejection by
Landlord, its successors or assigns, or those claiming by, through, or under
them or anyone claiming under paramount title to Landlord.
18.2. ENCUMBRANCES. Landlord represents and warrants that, with the
exception of the Permitted Exceptions shown on Exhibit "C," it has not granted
nor created and covenants that it will not grant, create or suffer any claim,
lien, encumbrance, easement, restriction or other charge or exception to title
to the Leased Premises which would have any material adverse effect upon
Tenant's rights or obligations under this Lease; provided, however, that it is
expressly agreed that Landlord, its successors and assigns may subject its
interest in the Leased Premises to mortgage loans if such lender shall agree for
itself, its successors and assigns: (i) to be bound by the terms of this Lease;
(ii) not to disturb Tenant's use or possession of the Leased Premises in the
event of a foreclosure of such lien or encumbrance so long as Tenant is not in
default hereunder; (iii) except as may be required under applicable law, not to
join Tenant as a party defendant in any foreclosure proceeding relating to the
Project or any part thereof. If Landlord's interest in the Land or in this
Lease is sold or conveyed upon the exercise of any remedy provided for in any
such mortgage loan, or otherwise by operation of law, this Lease will not be
affected in any way, and Tenant will attorn to and recognize the new owner as
Tenant's
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Landlord under this Lease. Tenant will confirm such attornment in writing
within ten (10) days after Tenant's receipt of a written request for
attornment.
18.3. TRANSFER BY LANDLORD. Landlord has the absolute right to
transfer all or a part of its interest in this Lease to any successor. In the
event of any sale or other transfer of all of Landlord's interest in the Leased
Premises, other than a transfer for security purposes only, Landlord shall
automatically be relieved of any and all obligations and liabilities on the part
of Landlord accruing from and after the date of such transfer, provided that the
transferee acknowledges in writing that such transferee assumes the terms and
conditions of this Lease.
19. WAIVER OF SUBROGATION. Landlord and Tenant severally waive any and
every claim which arises or may arise in its favor and against the other during
the Lease Term for any and all loss of, or damage to, any of its property
located within or upon, or constituting a part of, the Leased Premises, which
loss or damage is covered by valid and collectible fire and extended coverage,
general liability, liquor liability or worker's compensation insurance policies,
to the extent that such loss or damage is recoverable thereunder. Inasmuch as
the above mutual waivers will preclude the assignment of any aforesaid claim by
way of subrogation (or otherwise) to an insurance company (or any other person),
Landlord and Tenant severally agree immediately to give to each insurance
company which has issued to it policies of insurance, written notice of the
terms of said mutual waivers, and to have said insurance policies properly
endorsed, if necessary, to prevent the invalidation of said insurance coverages
by reason of said waivers.
20. FORCE MAJEURE. The time for performance by Landlord or Tenant
of any term, provision or covenant of this Lease, other than the payment of
amounts due under this Lease, shall be deemed extended by time lost due to
delays resulting from acts of God, strikes, unavailability of building
materials, civil riots, floods, material or labor restrictions by
governmental authority, and any other cause not within the control of
Landlord or Tenant, as the case may be.
21. NO BROKERS. Tenant warrants that is has not had any contact or
dealings with any person or real estate broker which would give rise to the
payment of any finders' fee or brokerage commission by Landlord in connection
with this Lease, and Tenant shall indemnify, hold harmless and defend Landlord
from and against any liability with respect to any finder's fee or brokerage
commission arising out of any act or omission of Tenant. Landlord warrants that
it has not had any contact with any person or real estate broker which would
give rise to the payment of any finders' fee or brokerage commission by Tenant
in connection with this Lease, and Landlord shall indemnify, hold harmless and
defend Tenant from and against any liability with respect to any finders' fee or
brokerage commission arising out of any act or omission of Landlord.
22. LANDLORD-TENANT RELATIONSHIP. It is further understood and agreed
that the Landlord shall in no event be construed or held to be a partner, joint
venturer or associate of Tenant in the conduct of Tenant's business, nor shall
Landlord be liable for any debts incurred
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by Tenant in Tenant's business; but it is understood and agreed that the
relationship is and at all times shall remain that of landlord and tenant.
23. ASSIGNMENT AND SUBLETTING.
23.1. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or
sublet the whole or any part of the Leased Premises without the prior written
consent of Landlord, which shall not unreasonably be withheld.
23.2. NO RELEASE OR NOVATION. No assignment or subletting or
collection of rent from the assignee or subtenant (including, without
limitation, any assignment pursuant to the preceding Section 23.2) shall be
deemed to constitute a novation or in any way release Tenant from further
performance of its obligations under this Lease, and Tenant shall continue to be
liable under this Lease for the balance of the Lease Term with the same force
and effect as if no such assignment had been made.
23.3. ENCUMBRANCE OR ASSIGNMENT AS SECURITY.
23.3.1. DEFINITIONS.
The term "LEASEHOLD MORTGAGE" as used in this Lease
shall mean a first mortgage, a first deed of trust, a sale - leaseback
(wherein the leaseback is prior to all other security interests in Tenant's
leasehold estate) or other first priority security instrument or device by
which Tenant's leasehold estate is mortgaged, conveyed, assigned, or
otherwise transferred, to secure a debt or other obligation.
23.3.1.1. The term "LEASEHOLD MORTGAGEE" as used in
this Lease shall refer to an institutional lender (i.e., a savings bank,
savings and loan association, commercial bank, trust company, credit union,
insurance company, college, university, real estate investment trust or
pension fund or any other institution which is recognized nationally or
regionally as being in the business of lending money or serving as the
trustee for persons investing in such debt) which is not affiliated with
Tenant and which is the holder of a Leasehold Mortgage (which in the case of
a deed of trust is the beneficiary thereof and in the case of a
sale-leaseback is the lessor) in respect to which the notice provided for by
Section 23.4.3 has been given and received and as to which the provisions of
this Section 23.4 are applicable.
23.3.2. TENANT'S RIGHT TO MORTGAGE ITS LEASEHOLD INTEREST.
Notwithstanding any other provision contained in this Lease, for the purpose of
financing construction or reconstruction permitted by this Lease or refinancing
any such financing, Tenant shall have the right to encumber or assign its
interest in this Lease or assign its interest in any sublease hereunder by
mortgage or deed of trust (hereinafter, collectively, "MORTGAGE") (or by
foreclosure or assignment in lieu of foreclosure under such Mortgage) to any
institutional lender or other lender reasonably acceptable to Landlord as
mortgagee and if such Mortgage is a deed of trust, foreclosure may be had
thereunder by the exercise of a power of sale in accordance
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with the provisions of Chapter 107 of the Nevada Revised Statutes. There may
be no more than one Mortgage on Tenant's interest in the Improvements and
this Lease at any given time.
23.3.3. NOTICE TO LANDLORD. Upon execution of a Mortgage
otherwise entitled to the benefits of a Leasehold Mortgage (or any amendment,
supplement or modification thereto) and in order to be entitled to such
benefits a photostatic copy of such instrument and the obligation secured
thereby shall be promptly delivered to Landlord together with a certification
by Tenant and the Leasehold Mortgagee confirming that the photostatic copy is
a true copy of the Leasehold Mortgage and giving written notice of the name
and mailing address of the Leasehold Mortgagee (which shall be deemed such
Leasehold Mortgagee's address hereunder until changed by notice to Landlord
and Tenant as provided in Article 24), that the Leasehold Mortgage was
recorded in the Official Records of Xxxxx County, Nevada, the date of
recording or filing of record thereof and recorder's instrument number and
book reference or other recorder's index reference, and that such Mortgage is
a first lien on Tenant's interest in the Improvements and this Lease. Until
such true copies and certificate are delivered to Landlord, any such
instrument shall have no force or effect whatsoever on the enforcement by
Landlord of any provisions of this Lease or any rights or remedies hereunder.
23.3.4. CANCELLATION, SURRENDER AND MODIFICATION. No
cancellation, surrender or modification of this Lease shall be effective as
to any Leasehold Mortgagee unless consented to in writing by such Leasehold
Mortgagee.
23.3.5. NOTICE OF DEFAULT AND RIGHT TO CURE. Landlord, upon
providing Tenant any notice of: (i) default under this Lease, (ii) a
termination of this Lease, or (iii) a matter on which Landlord may predicate
or claim a default, shall at the same time provide a copy of such notice to
any Leasehold Mortgagee. From and after such notice has been given to a
Leasehold Mortgagee, such Leasehold Mortgagee shall have the same period,
after the giving of such notice, for remedying any default or acts or
omissions which are the subject matter of such notice or causing the same to
be remedied, as is given Tenant after the giving of such notice to Tenant,
plus in each instance, the additional periods of time specified in Sections
23.4.6 and 23.4.7, to remedy, commence remedying or cause to be remedied the
defaults or acts or omissions which are the subject matter of such notice
specified in any such notice. Landlord shall accept such performance by or at
the instigation of such Leasehold Mortgagee as if the same had been done by
Tenant. Tenant authorizes each Leasehold Mortgagee to take any such action
at such Leasehold Mortgagee's option and does hereby authorize entry upon the
Leased Premises by the Leasehold Mortgagee for such purpose.
23.3.6. TERMINATION FOR TENANT DEFAULT. Anything contained
in this Lease to the contrary notwithstanding, if any default shall occur
which entitles Landlord to terminate this Lease, Landlord shall have no right
to terminate this Lease unless, following the expiration of the period of
time given Tenant to cure such default or the act or omission which gave rise
to such default, Landlord shall notify any Leasehold Mortgagee of Landlord's
intent to so terminate at least thirty (30) days in advance of the proposed
effective date of such termination, if such default is capable of being cured
by the payment of money, and at least forty-five (45)
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days in advance of the proposed effective date of such termination if such
default is not capable of being cured by the payment of money. The
provisions of Section 23.4.7 below shall apply if, during such thirty (30) or
forty-five (45) day cure period, any Leasehold Mortgagee shall:
(a) notify Landlord of such Leasehold Mortgagee's desire to avoid any
termination of this Lease by Landlord; and
(b) pay or cause to be paid all rent and other payments then due and
in arrears as specified in the notice to such Leasehold Mortgagee and
which may become due during such thirty (30) or forty-five (45) day
cure period; and
(c) comply, or in good faith and with reasonable diligence commence
to comply, with all nonmonetary requirements of this Lease then in
default and reasonably susceptible of being complied with by such
Leasehold Mortgagee (provided, however, that such Leasehold Mortgagee
shall not be required during such period to cure or commence to cure
any default consisting of Tenant's failure to satisfy and discharge
any lien, charge or encumbrance against Tenant's interest in this
Lease or the Leased Premises junior in priority to the lien of the
Leasehold Mortgage held by such Leasehold Mortgagee, so long as such
lien, charge or encumbrance does not also encumber or threaten
Landlord's interest in the Land or the Leased Premises);
23.3.7. PROCEDURE OF DEFAULT.
23.3.7.1. If Landlord shall elect to terminate this Lease by
reason of any default of Tenant, and if a Leasehold Mortgagee shall have
proceeded in the manner provided for by Section 23.4.6, the specified date for
the termination of this Lease as fixed by Landlord in its termination notice
shall be extended for a period of six (6) months provided that such Leasehold
Mortgagee shall, during such six (6) month period:
(a) Pay or cause to be paid the rent, additional rent and other
monetary obligations of Tenant under this Lease as the same become
due, and continue its good faith efforts to perform all of Tenant's
other obligations under this Lease, excepting (A) obligations of
Tenant to satisfy or otherwise discharge any lien, charge or
encumbrance against Tenant's interest in this Lease or the Leased
Premises junior in priority to the lien of the Leasehold Mortgage held
by such Leasehold Mortgagee, so long as such lien, charge or
encumbrance does not also encumber or threaten Landlord's interest in
the Land or the Leased Premises and (B) past nonmonetary obligations
then in default and not reasonably susceptible of being cured by such
Leasehold Mortgagee; and
(b) If not enjoined or stayed, take steps to acquire or sell Tenant's
interest in this Lease by foreclosure of the Leasehold Mortgage or
other appropriate means and prosecute the same to completion with due
diligence.
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23.3.7.2. If at the end of such six (6) month period such
Leasehold Mortgagee is complying with Section 23.4.7.1, this Lease shall not
then terminate, and the time for completion by such Leasehold Mortgagee of its
proceedings shall continue so long as such Leasehold Mortgagee is enjoined or
stayed and thereafter for so long as such Leasehold Mortgagee proceeds to
complete steps to acquire or sell Tenant's interest in this Lease by foreclosure
of the Leasehold Mortgage or by other appropriate means with reasonable
diligence and continuity. Nothing in this Section 23.4.7, however, shall be
construed to extend this Lease beyond the Lease Term, nor to require a Leasehold
Mortgagee to continue such foreclosure proceedings after the subject Tenant
default has been cured. If the default shall be cured and the Leasehold
Mortgagee shall discontinue such foreclosure proceedings, this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
23.3.7.3. If a Leasehold Mortgagee is complying with Section
23.4.7.1, upon the acquisition of Tenant's leasehold estate herein by such
Leasehold Mortgagee or its designee or any other purchaser at a foreclosure sale
or otherwise, and upon the discharge of any lien, charge or encumbrance against
the Tenant's interest in this Lease or the Leased Premises which is junior in
priority to the lien of the Leasehold Mortgage held by such Leasehold Mortgagee
and which the Tenant is obligated to satisfy and discharge by reason of the
terms of this Lease, this Lease shall continue in full force and effect as if
Tenant had not defaulted under this Lease.
23.3.7.4. The making of a Leasehold Mortgage shall not be deemed
to constitute an assignment or transfer of this Lease or of the leasehold estate
hereby created, nor shall any Leasehold Mortgagee, as such, be deemed to be an
assignee or transferee of this Lease or of the leasehold estate hereby created
so as to require such Leasehold Mortgagee, as such, to assume the performance of
any of the terms, covenants or conditions on the part of Tenant to be performed
hereunder, but the purchaser at any sale of this Lease and of the leasehold
estate hereby created in any proceedings for the foreclosure of any Leasehold
Mortgage, or the assignee or transferee of this Lease and of the leasehold
estate hereby created under any instrument of assignment or transfer in lieu of
the foreclosure of any Leasehold Mortgage, shall be deemed to be an assignee or
transferee within the meaning of this Lease, and shall be deemed to have agreed
to perform all of the terms, covenants and conditions on the part of Tenant to
be performed hereunder from and after the date of such purchase and assignment.
23.3.7.5. Any Leasehold Mortgagee or other acquirer of the
leasehold estate of Tenant pursuant to foreclosure, assignment in lieu of
foreclosure or other proceedings may, upon acquiring Tenant's leasehold estate,
without further consent of Landlord, sell and assign the leasehold estate on
such terms and to such persons and entities as are acceptable to such Mortgagee
or acquirer and thereafter be relieved of all obligations under this Lease,
provided that such assignee is solvent and financially and legally able to
perform the obligations of Tenant for the unexpired Lease Term, in Landlord's
reasonable judgment. No other or further assignment shall be made except in
accordance with the provisions of Article 23 of this Lease. Upon execution of
any assignment permitted to be made to or by the Leasehold Mortgagee a fully
executed copy thereof, together with a written statement of the place of
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recording or filing of record, if any, and a copy of the assumption agreement,
if applicable, shall be delivered promptly to Landlord; and until such delivery
to Landlord such assignment shall have no force or effect whatsoever on the
enforcement by Landlord of any provisions of this Lease or any rights or
remedies hereunder.
23.3.7.6. Notwithstanding any other provisions of this Lease, any
sale of this Lease and of the leasehold estate hereby created in any proceedings
for the foreclosure of any Leasehold Mortgage, or the assignment or transfer or
this Lease and of the leasehold estate hereby created in lieu of the foreclosure
of any Leasehold Mortgage shall be deemed to be a permitted sale, transfer or
assignment of this Lease and of the leasehold estate hereby created.
23.3.7.7. Nothing in this Section 23.4 shall limit Landlord's
ability to enforce this Lease by any means (including, but not limited to, an
action for specific performance and/or injunction) other than termination,
reentry or taking possession after expiration of the cure periods, if any,
provided in Section 25.1.
23.3.8. NEW LEASE. In the event of the termination of this Lease as
a result of Tenant's default, Landlord shall, in addition to providing the
notices of default and termination as required above, provide any Leasehold
Mortgagee with written notice that this Lease has been terminated, together with
a statement of all sums which would at that time be due under this Lease but for
such termination, and of all other defaults, if any, then known to Landlord.
Landlord agrees to enter into a new lease ("NEW LEASE") of the Leased Premises
with such Leasehold Mortgagee or its designee for the remainder of the Lease
Term, effective as of the date of termination, at the rent, and upon the terms,
covenants and conditions (but excluding requirements which are not applicable or
which have already been fulfilled) of this Lease, provided:
(a) Such Leasehold Mortgagee shall make written request upon Landlord
for such New Lease within sixty (60) days after the date such
Leasehold Mortgagee receives Landlord's notice of termination or
actual termination, if later, of this Lease given pursuant to this
Section 23.4.8.
(b) Such Leasehold Mortgagee or its designee shall pay or cause to be
paid to Landlord at the time of the execution and delivery of such New
Lease, any and all sums which would at the time of execution and
delivery thereof be due pursuant to this Lease but for such
termination and, in addition thereto, all reasonable expenses,
including reasonable attorney's fees, which Landlord shall have
incurred by reason of such termination and the execution and delivery
of the New Lease, and which have not otherwise been received by
Landlord from Tenant or other party in interest under Tenant. Upon the
execution of such New Lease, Landlord shall allow to the tenant named
therein as an offset against the sums otherwise due under this Section
23.4.8(b) or under the New Lease, an amount equal to the net income,
if any, derived by Landlord from the Leased
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Premises during the period from the date of termination of this Lease
to the date of the beginning of the lease term of such New Lease. In
the event of a controversy as to the amount to be paid to Landlord
pursuant to this Paragraph (b), the payment obligation shall be
satisfied if Landlord shall be paid the amount not in controversy,
and the Leasehold Mortgage or its designee shall agree to pay any
additional sum ultimately determined to be due plus interest at the
rate of fifteen percent (15%) and such obligation shall be adequately
secured. For purposes of this Section 23.4.8(b), NET INCOME shall
mean gross revenue derived by Landlord from the Leased Premises
during the period from the date of termination of this Lease to the
date of the beginning of the lease term of such New Lease, less all
operating expenses, real and personal property taxes and debt service
payments (with respect to debt incurred to own, operate, alter or
manage the Improvements) incurred or paid by Landlord during such
period.
(c) Such Leasehold Mortgagee or its designee shall agree to cure any
of Tenant's defaults of which said Leasehold Mortgagee was notified by
Landlord's notice of termination and which are reasonably susceptible
of being so cured by Leasehold Mortgagee or its designee.
(d) The tenant under any New Lease shall, upon an assignment of such
leasehold estate, be relieved and discharged from the obligations
imposed on the tenant by such New Lease, provided that the assignee of
such leasehold estate is solvent and financially and legally able to
perform the obligations of the tenant for the unexpired term of the
New Lease, in Landlord's reasonable judgment.
23.3.9. CASUALTY AND CONDEMNATION LOSS. Any Mortgage must be
consistent with and not interfere with Landlord's rights hereunder with respect
to insurance, casualty and condemnation, except that a Leasehold Mortgage may
provide that casualty insurance proceeds with respect to the Leased Premises and
condemnation awards payable with respect to the buildings and other improvements
on the Leased Premises shall only be disbursed for repair, reconstruction or
restoration upon satisfaction of specified conditions. Such conditions shall be
subject to Landlord's approval, which shall not be unreasonably withheld. The
Leasehold Mortgage shall provide that Landlord shall have a reasonable period of
time after Tenant's failure to satisfy such conditions in which to satisfy the
same and that thereupon such proceeds or condemnation awards shall be made
available for repair, reconstruction and restoration as herein provided. The
failure of any Leasehold Mortgagee to make such proceeds or condemnation awards
available shall not relieve Tenant of any obligation hereunder and any failure
of Tenant to repair, reconstruct or restore as provided in this Lease shall
constitute a default. Any Mortgage must provide that Landlord will be notified
of any default thereunder and provided a reasonable opportunity to cure the
same.
23.3.10. ARBITRATION. Landlord shall give any Leasehold Mortgagee
prompt notice of any arbitration or legal proceedings between Landlord and
Tenant involving obligations under this Lease. Any Leasehold Mortgagee shall
have the right to intervene in any such
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proceedings and be made a party to such proceedings at its or Tenant's cost,
and the parties hereto do hereby consent to such intervention. In the event
that any Leasehold Mortgagee shall not elect to intervene or become a party
to any such proceedings, Landlord shall give the Leasehold Mortgagee notice
of, and a copy of, any award or decision made in any such proceedings. In
the event Tenant shall fail to appoint an arbitrator after notice from
Landlord, as provided in Article 29 hereof, a Leasehold Mortgagee shall have
an additional period of thirty (30) days, after notice by Landlord that
Tenant has failed to appoint such arbitrator, to make such appointment, and
the arbitrator so appointed shall thereupon be recognized in all respects as
if he had been appointed by Tenant.
23.3.11. NO MERGER. So long as any Leasehold Mortgage is in
existence, unless any Leasehold Mortgagee shall otherwise expressly consent in
writing, the fee title to the Leased Premises and the leasehold estate of Tenant
therein created by this Lease shall not merge but shall remain separate and
distinct, notwithstanding the acquisition of said fee title and said leasehold
estate by Landlord or by Tenant or by a third party, by purchase or otherwise.
23.3.12. ESTOPPEL. Landlord shall, without charge, at any time and
from time to time hereafter, but not more frequently than once in any one-year
period, within ten (10) days after written request from Tenant to do so, certify
by written instrument duly executed and acknowledged to any Leasehold Mortgagee
or purchaser, or proposed Leasehold Mortgagee or proposed purchaser, or any
other person or entity specified in such request: (a) as to whether this Lease
has been supplemented or amended, and if so, the substance and manner of such
supplement or amendment; (b) as to the validity and force and effect of this
Lease, in accordance with its tenor; (c) as to the existence of any default
hereunder; (d) as to the existence of any offsets, counterclaims or defenses
hereto on the part of Tenant; (e) as to the commencement and expiration dates of
the Lease Term; and (f) as to any other matters as may be reasonably so
requested. Any such certificate may be relied upon by Tenant and any other
person or entity to whom the same may be exhibited or delivered, and the
contents of such certificate shall be binding on the Landlord.
23.3.13. NOTICES. Notices from Landlord to the Leasehold Mortgagee
shall be mailed to the address furnished Landlord pursuant to Section 23.4.3,
and those from the Leasehold Mortgagee to Landlord shall be mailed to the
address designated pursuant to the provisions of Article 24 hereof. Such
notices, demands and requests shall be given in the manner described in Article
24 and shall in all respects be governed by and shall be deemed to be effective
in accordance with the provisions of that Article.
23.3.14. NO SUBORDINATION OF LANDLORD'S FEE TITLE. Landlord shall
not be required to subordinate Landlord's fee interest in the Leased Premises
or its reversionary interest in the buildings and improvements existing or to
be constructed thereon to any lien securing Tenant's construction loan or
other financing.
24. NOTICES AND PAYMENTS. Any notice or document required or
permitted to be delivered hereunder or by law shall be deemed to be
delivered, whether actually received or not,
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(a) when delivered in person, (b) upon confirmed receipt (or the first
business day thereafter if receipt does not occur during business hours on a
business day) if such item is sent by facsimile transmission to the
appropriate party at its fax number set forth below or at such other number
as it shall have thereafter specified by written notice delivered in
accordance with this Article 24 (provided that a copy of such notice is also
sent by another method permitted hereunder within one (1) business day after
the same is transmitted by facsimile), (c) three (3) business days after such
item is deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, (d) one (1) business day after such
item is deposited with Federal Express or other nationally-recognized
overnight courier, shipping charges prepaid, addressed to the appropriate
party hereto at its address set out below, or at such other address as it
shall have theretofore specified by written notice delivered in accordance
herewith:
LANDLORD: XXXXXXX X. XXXXXX AND XXXX XXXXXX, TRUSTEES
000 Xxx Xxx Xxxxxx
Xxx Xxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxxxx, Esq.
XXXXXXX & XXXXXX
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telefax: (000) 000-0000
TENANT: BOARDWALK CASINO, INC.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
JONES, JONES, CLOSE & XXXXX, CHARTERED
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Telefax: (000) 000-0000
Payments of Base Rent and other sums due Landlord from Tenant (collectively
referred to in this Lease as "RENT") shall be deemed to be remitted only upon
actual receipt thereof by Landlord.
If and when included within the term "Landlord" or "Tenant" there is
more than one person or legal entity, all shall jointly arrange among themselves
for one among their numbers to receive at one specified address all such notices
and payments; all parties included within the term "Landlord" or "Tenant," as
appropriate, shall be bound by notices delivered by the other party in
accordance with the provisions of this Article 24 as if each had received such
notice.
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25. DEFAULT.
25.1. EVENTS OF DEFAULT. Each of the following events shall be an
"Event of Default" under this Lease:
25.1.1. Tenant shall fail to pay any installment of rent hereby
reserved prior to the last day of the month in which the same shall become due;
25.1.2. Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the payment of rent, and shall not cure such
failure within thirty (30) days after written notice thereof is given by
Landlord to Tenant. If such default cannot reasonably be cured within thirty
(30) days, then Tenant shall have an additional reasonable period of time within
which to cure such default so long as Tenant commences to cure such default
within the initial thirty (30) day period and thereafter diligently prosecutes
such cure to completion;
25.1.3. Tenant shall be adjudged insolvent, make a transfer in fraud
of creditors or make an assignment for the benefit of creditors;
25.1.4. Tenant shall abandon the Leased Premises or shall cease
operations in the Premises (except for short time periods not exceeding thirty
(30) days in any twelve (12) month period or ninety (90) days in any sixty (60)
month period and except for interruptions in Tenant's operations which are
caused by events which are beyond Tenant's control, including, without
limitation, casualty damage (but not including Tenant's financial inability to
operate); provided that Tenant may cease operations in the Leased Premises for
one (1) period of up to two (2) years in order to diligently construct major
renovations to, or replacement of, the Improvements;
25.1.5. Tenant shall file a petition under any section or chapter of
the Bankruptcy Reform Act of 1978, as amended, or under any similar law or
statute of the United States or any state thereof, or Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant thereunder; or
25.1.6. A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant and Tenant shall not have had such
appointment discharged within thirty (30) days after Tenant receives written
notice of such appointment.
25.2. LANDLORD'S REMEDIES: Upon the occurrence of any Tenant Event of
Default, Landlord shall have the option to pursue any one or more of the
following remedies:
25.2.1. Terminate this Lease, in which event Tenant shall
immediately surrender the Leased Premises to Landlord, and if Tenant fails so to
do, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Leased
Premises and expel or remove Tenant and any other person
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who may be occupying the Leased Premises, or any part thereof, by force if
necessary, without being liable to prosecution or for any claim for damages;
and Landlord may recover from Tenant:
25.2.1.1. The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
25.2.1.2. The worth at the time of award of any amount by which
the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
25.2.1.3. The worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of the award exceeds
the amount of such rental loss that Tenant proves could be reasonably avoided;
plus
25.2.1.4. All interest, late charges, attorney's fees, costs and
all other charges and sums to be paid by Tenant under this Lease.
25.2.1.5. At Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable law.
All such amounts shall be computed on the basis of the monthly amount
thereof payable on the date of Tenant's default. As used in Sections 25.2.1.1
and 25.2.1.2 above, the "worth at the time of award" is computed by allowing
interest in the per annum amount equal to two percent (2%) in excess of the
Reference Rate of interest announced from time to time by Bank of America
National Trust and Savings Association (or an equivalent rate announced by a
comparable national bank selected by Landlord in the event Bank of America no
longer announces a Reference Rate), but in no event in excess of the maximum
interest rate permitted by law.
25.2.2. Enter upon and take possession of the Leased Premises and
expel or remove Tenant and other persons who may be occupying the Leased
Premises, or any part thereof, by force if necessary, without being liable to
prosecution or for any claim for damages, and relet the Leased Premises, as
Tenant's agent, and receive the rent therefor; and Tenant agrees to pay Landlord
on demand any deficiency that may arise by reason of such reletting; or
25.2.3. Enter upon the Leased Premises, without being liable to
prosecution or for any claim for damages, and do whatever Tenant is obligated to
do under the terms of this Lease; and Tenant agrees to reimburse Landlord on
demand for any reasonable and necessary expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations hereunder.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any
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remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damage accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon the occurrence of an Event of Default shall not be deemed or
construed to constitute a waiver of such default.
26. HAZARDOUS MATERIALS.
26.1. COVENANT. Tenant covenants to Landlord that it will not use, or
allow to be used on the Leased Premises, or bring onto, or allow to be brought
onto, the Leased Premises any Hazardous Substance, as defined below, except as
may be reasonably required in connection with its permitted business on the
Leased Premises, and then only in full compliance with all federal, state or
local laws. Tenant shall require every sublease to contain provisions similar
to the provisions set forth in this Article 26.
26.2. RIGHT OF ENTRY. Subject to applicable laws and Tenant's
reasonable security policies, Landlord reserves the right to enter the Leased
Premises and all Improvements thereon at any reasonable time and upon reasonable
notice, and at any time in exigent circumstances, for the purpose of inspecting
and examining the Leased Premises for the presence of any Hazardous Substance.
If the results of such inspection or examination reveal the presence of
Hazardous Substances in, on or about the Leased Premises, and if Landlord has
reasonable cause to believe that they are present in, on or about the Leased
Premises due to Tenant's failure to be in compliance with Article 26, then
Tenant shall reimburse Landlord for its costs incurred in undertaking such
inspection and examination.
26.3. INDEMNITY. Tenant shall indemnify, defend and hold Landlord and
its trustees, beneficiaries, heirs, successors, assigns, agents, employees and
representatives harmless from any and all Indemnified Costs caused by the
presence of Hazardous Substances in, on or about the Leased Premises which are
placed, or allowed to be placed, in, on or about the Leased Premises by Tenant,
or incurred by Landlord in connection with the release, removal or storage of
any Hazardous Substance placed, or allowed to be placed, in, on or about the
Leased Premises by Tenant. Landlord shall indemnify, defend and hold Tenant and
its trustees, beneficiaries, heirs, successors, assigns, agents, employees and
representatives harmless from any and all Indemnified Costs caused by the
presence of Hazardous Substances in, on, or about the Leased Premises, which are
placed, or allowed to be placed in, on, or about the Leased Premises prior to
the Effective Date, or subsequent to surrender of the Leased Premises by Tenant.
The provisions of this indemnity shall remain in full force and effect and shall
not be affected or impaired by the expiration or any earlier termination of this
Lease and shall survive any such expiration or termination. "INDEMNIFIED COSTS"
means all actual or threatened liabilities, claims, actions, causes of action,
judgments, orders, damages (including foreseeable and unforeseeable
consequential damages), costs, expenses, fines, penalties and losses (including
sums paid in settlement of claims and all consultant, expert and legal fees),
including those incurred in connection with any investigation of site conditions
or any clean-up, remedial, removal or restoration work (whether of the Leased
Premises, or any other property), or any
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resulting damages, harm or injuries to the person or property of any third
parties or to any natural resources. Without limiting the foregoing,
"Indemnified Costs" incurred as a result of any work of cure, mitigation,
cleanup, remediation, removal or restoration shall bear interest at the rate
of fifteen percent (15%) per annum until paid in full. Indemnified Costs
shall include all expenses incurred or suffered pursuant to any order of any
federal, state or local governmental agency relating to the clean-up,
remediation or other responsive action required by any applicable law.
26.4. HAZARDOUS SUBSTANCES DEFINED. As used herein, the term
"HAZARDOUS SUBSTANCES" shall include: (i) petroleum or any of its fractions,
flammable substances, explosives, radioactive materials, hazardous wastes or
substances, toxic wastes or substances or any other similar materials or
pollutants which pose a hazard to the Leased Premises, or to persons on or about
same, cause the Leased Premises to be in violation of any law or local approval,
or are defined as or included in the definition of "HAZARDOUS SUBSTANCES",
"HAZARDOUS WASTES", "HAZARDOUS MATERIALS", or "TOXIC", or words of similar
import under any applicable law, including, but not limited to: (A) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq.; (B) the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.; (C) the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901, et
seq.; and (D) regulations adopted and publications promulgated pursuant to the
aforesaid laws; (ii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50
parts per million; and (iii) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority or
may or could pose a hazard to the health and safety of the occupants of the
Leased Premises or the owners and/or occupants of property adjacent to or
surrounding the Leased Premises.
27. MISCELLANEOUS.
27.1. TERMINATION. In the event this Lease is terminated pursuant to a
right to do so herein contained, except as specifically provided herein (such
as, for example, but without limitation, in Section 2.11 (Tenant's obligation to
remove the Improvements and regrade the Land), in Article 4 (the payment of
hold-over rent by Tenant), in Section 13.1 (Tenant's right to remove its
personal property after the expiration of the Lease Term), in Article 16
(indemnity), and in Article 26 above (hazardous materials)) neither Landlord nor
Tenant hereto shall thereafter have any further obligation or liability one to
the other except such obligations as are owed under this Lease through the date
of termination, and this Lease shall be of no further force or effect.
27.2. CAPTIONS. The captions used in this Lease are for convenience
only and shall not be deemed to amplify, modify or limit the provisions hereof.
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27.3. MEANINGS. Words of any gender used in this Lease shall be
construed to include any other gender, and words in the singular shall include
the plural and vice versa, unless the context otherwise requires.
27.4. SUCCESSORS AND ASSIGNS. Subject to the restrictions set forth
herein on assignment and subletting by Tenant, this Lease shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their respective
heirs, legal representatives, successors and assigns.
27.5. ENTIRE AGREEMENT. The Exhibits annexed to this Lease are hereby
incorporated by reference in their entirety with the same force and effect as if
they were set forth in this Lease in their entirety. This Lease contains the
entire agreement of Landlord and Tenant with respect to the subject matter
hereof and can be altered, amended or modified only by written instrument
executed by both of such parties.
27.6. TIME. It is expressly agreed by Landlord and Tenant that time is
of the essence with respect to this Lease. In the event the date for performance
of an obligation or delivery of any notice hereunder falls on a day other than a
business day, then the date for such performance or delivery of such notice
shall be postponed until the next ensuing business day. Any references to
"business days" contained herein are references to normal working business days
(i.e., Monday through Friday of each calendar week, exclusive of Federal and
Nevada state holidays).
27.7. SEVERABILITY. If any term or provision, or any portion thereof,
of this Lease, or application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
27.8. COUNTERPARTS. This Lease may be signed in counterparts with the
same force and effect as if all required signatures were contained in a single,
original instrument.
27.9. ATTORNEYS' FEES. In the event of litigation between the parties
to enforce this Lease, the prevailing party in any such action shall be entitled
to recover reasonable costs and expenses of suit, including, without limitation,
court costs, attorneys' fees, and discovery and related costs.
27.10. MEMORANDUM OF LEASE. Landlord and Tenant shall execute a
memorandum of this Lease and record such memorandum against the Land.
27.11. GOVERNING LAW. This Lease shall be construed, interpreted, and
enforced pursuant to the laws of the State of Nevada.
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28. GAMING PROVISION
28.1. COOPERATION AND COMPLIANCE BY LANDLORD. Landlord, at Tenant's
sole cost and expense, shall promptly apply for and use its best efforts to
obtain all necessary licenses and other approvals and permits, if any, required
of Landlord from any foreign, federal, state or local gaming and liquor
licensing authorities (collectively "GOVERNMENTAL AUTHORITIES") for the
operation by Tenant of its business at the Leased Premises, and shall otherwise
fully cooperate, at Tenant's sole cost and expense, with such Governmental
Authorities in connection with any approval or permit applications of Landlord
or Tenant, or otherwise, which shall include, without limitation, provision of
such information, books and records as may be requested by such authorities and
compliance with all orders and requirements of such Governmental Authorities.
28.2. DENIAL. If at any time (a) Landlord, or any affiliate of
Landlord or either of them, is denied a license or is denied or otherwise unable
to obtain any other approval or permit required by any Governmental Authority
with respect to the operation by Tenant or any affiliate of Tenant or either of
them of its business at the Leased Premises (collectively "APPROVALS"), is
required by any Governmental Authority to apply for an Approval and does not
apply within any required time limit, or withdraws any application for Approval
other than upon a determination by the applicable Governmental Authority that
such Approval is not required, and such denial or failure or withdrawal prevents
Tenant or any affiliate of Tenant or either of them from operating its business;
or (b) any Governmental Authority commences or threatens to commence any suit or
proceeding against Tenant or any affiliate of Tenant or either of them to
terminate or deny any Approval of Tenant or any affiliate of Tenant or either of
them as a result of Landlord or any person associated with Landlord (all of the
foregoing events described in (a) and (b) above are collectively referred to as
a "DENIAL"), if such action may be cured by the replacement of one or more
individuals as shareholders, officers, employees or directors of Landlord or by
a sale of the Leased Premises or disassociation from the applicable person, then
Landlord shall have up to one hundred twenty (120) days from such Denial (but
not more than the period, if any, as may be allowed by the Governmental
Authorities to effect such cure, to replace the disapproved individual with
someone, or sell the Leased Premises to someone, acceptable to the Governmental
Authorities and reasonably acceptable to Tenant. If a cure of the type
described in the preceding sentence is not feasible or permitted, or if the same
is feasible and permitted but not effected within the time limit set forth in
the previous sentence, Tenant shall have the right, in addition to all its other
rights and remedies, to elect to (a) terminate this Lease, or (b) purchase the
Leased Premises as provided in Paragraph 28.3.
28.3. PURCHASE RIGHT. Landlord hereby grants to tenant an option (the
"PURCHASE RIGHT") to purchase the Leased Premises as provided in this Paragraph
28.3.
28.3.1. Tenant may exercise the Purchase Right at any time following
a Denial and the cure period specified in Paragraph 28.2 by delivering written
notice to Landlord specifying a commercially reasonable place at which the close
(the "CLOSING") of escrow
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("ESCROW") shall occur. The Closing shall be ten (10) days after the
determination of the Purchase Price pursuant to Section 28.3.2 below.
28.3.2. The total purchase price for the Leased Premises (the
"PURCHASE PRICE") shall be equal to the sum of (i) present value of all payments
of Base Rent due for the remainder of the Lease Term, computed using an interest
rate equal to the "Prime Rate" of interest, as defined below, for the business
day preceding Tenant's notice pursuant to Section 28.3.1, and (ii) the fair
market value of Landlord's residuary interest in the Leased Premises and the
Improvements. If the parties are unable to agree upon the fair market value of
such residuary interest within ten (10) days after Tenant's exercise of its
Purchase Right pursuant to the preceding Section 28.3.1, such value shall be
determined by arbitration in accordance with the provisions of Article 29;
provided that if Tenant disapproves the value so determined by arbitration,
Tenant shall have the right, to be exercised by written notice to Landlord
within fifteen (15) days after such determination is made, to terminate this
Lease (in which event Tenant shall pay all costs incurred by Landlord under this
Section 28.3). The Purchase Price shall be paid by Tenant at the close of
Escrow in cash.
28.3.3. Upon exercise of the Purchase Right, Landlord shall convey
title to the Leased Premises to Tenant at the close of Escrow by grant, bargain
and sale deed subject only to matters shown in Tenant's leasehold title policy
delivered pursuant to Article 5 of this Lease and matters caused or consented to
in writing by Tenant. At close of Escrow, Landlord shall provide Tenant with a
CLTA owner's policy of title insurance, in the face amount of the Purchase
Price, and otherwise in a form and from an insurer or insurers reasonably
satisfactory to Tenant, with such endorsements and reinsurance as Tenant may
reasonably request, insuring Tenant's title to the Leased Premises, at Tenant's
expense.
28.3.4. Closing costs other than title insurance shall be allocated
in accordance with the then prevailing practice in Las Vegas, Nevada. Rent
shall be prorated as of the date of the close of Escrow. At the close of
Escrow, Landlord shall provide Tenant with a suitable affidavit satisfying the
requirements of the Internal Revenue Code relating to withholding of a portion
of the Purchase Price in the event of a purchase from a foreign person.
28.3.5. Landlord and Tenant shall promptly upon request prepare,
execute and deliver such further documents, and shall promptly obtain
beneficiary statements and similar certificates and perform such other acts as
shall from time to time be reasonably required in effecting the close of Escrow
and the better perfecting, assuring, conveying, assigning, transferring and
confirming unto Tenant the Leased Property and the rights to be conveyed or
assigned.
29. ARBITRATION. If any controversy or claim between the parties hereto
arises out of this Lease, other than a claim by Landlord arising from any
failure by Tenant to pay rent as and when such rent becomes due, and if the
parties are unable to agree by direct negotiations, the parties shall promptly
mediate any such disagreement or dispute under the Commercial Mediation Rules of
the American Arbitration Association. If the parties are unable to resolve
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such disagreement or dispute through mediation within ten (10) days after the
first written notice of an election to mediate, or if the disagreement
concerns the buyout price under Section 28.3, then such disagreement or
dispute (excluding an action by Landlord in unlawful detainer, as provided
above) shall be submitted to binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association. Notwithstanding
the foregoing, if the resolution of any controversy or claim requires the
participation of a third party who is not required and who declines to
participate in an arbitration proceeding, the parties shall not be required
to proceed with an arbitration of such controversy or claim.
The arbitrators shall be appointed under the Commercial Arbitration Rules
of the American Arbitration Association. As soon as the panel has been convened,
a hearing date shall be set within twenty-one (21) days thereafter. Written
submittals shall be presented and exchanged by both parties ten (10) days before
the hearing date, including reports prepared by experts upon whom either party
intends to rely. At such time the parties will also exchange copies of all
documentary evidence upon which they will rely at the arbitration hearing and a
list of the witnesses whom they intend to call to testify at the hearing. Each
party shall also make its respective experts available for deposition by the
other party prior to the hearing date. The hearings shall be concluded no later
than five (5) days after the initial hearing date. The arbitrators shall make
their award within ten (10) business days after the conclusion of the hearing.
In the event of a three-member panel, the decision in which two (2) of the
members of the arbitration panel concur shall be the award of the arbitrators.
Except as otherwise specified herein, there shall be no discovery or
dispositive motion practice (such as motions for summary judgment or to dismiss
or the like) except as may be permitted by the arbitrators, who shall authorize
only such discovery as is shown to be absolutely necessary to insure a fair
hearing and no such discovery or motions permitted by the arbitrators shall in
any way conflict with the time limits contained herein. Nothing herein shall be
deemed to permit discovery in such arbitration proceeding except as provided
above. The arbitrators shall not be bound by the rules of evidence or civil
procedure, but rather may consider such writings and oral presentations as
reasonable businessmen would use in the conduct of their day-to-day affairs, and
may require the parties to submit some or all of their presentation as the
arbitrators may deem appropriate. It is the intention of the parties to limit
live testimony and cross-examination to the extent absolutely necessary to
insure a fair hearing to the parties on the significant matters submitted to
arbitration. The parties have included the foregoing provisions limiting the
scope and extent of the arbitration with the intention of providing for prompt,
economic and fair resolution of any dispute submitted to arbitration.
The arbitrators shall have the discretion to award the costs of
arbitration, arbitrators' fees and the respective attorneys' fees of each party
between the parties as they see fit.
Judgment upon the award entered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
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Notwithstanding the parties' agreement to mediate or arbitrate their
disputes as provided herein, any party may seek emergency relief in a court of
law without waiving the right to arbitrate.
The arbitrators shall make their award in accordance with applicable law
and this Lease and based on the evidence presented by the parties, and at the
request of either party at the start of the arbitration, shall include in their
award findings of fact and conclusions of law supporting the award.
30. ADJUSTMENT UPON DEMOLITION. If Tenant, in connection with a Material
Modification, desires to demolish the Improvements, provided Landlord's written
consent to the Material Modification has been obtained, Tenant may commence to
demolish the Improvements only after satisfying the principal balance then due
and owing under that certain note secured by a deed of trust in favor of
American Life and Casualty described as item 14 on Exhibit "B" to this Lease, or
any replacement note not to exceed $1,800,000.00 (the "NOTE"). Thereafter, upon
satisfaction of the Note and the full release and reconveyance of any deed of
trust securing the Note, commencing on the first day of the first month
following the recordation of a full reconveyance, the Base Rent shall be reduced
by the sum of $20,000.00 per month for so long as shall be required to reimburse
Tenant an amount equal to the principal balance of the Note paid by Tenant,
together with interest thereon at the rate of ten percent (10%) per annum.
31. LANDLORD'S SECURITY INTEREST.
31.1. GRANT OF SECURITY INTEREST IN PROJECT PARCELS. Prior to
commencing construction of any Material Modification which will integrate any
improvements on the land with improvements on any other parcel of land
("TENANT'S PROJECT") (the date of such commencement is referred to herein as the
"START DATE"), and as additional security for the payment and performance of
Tenant's obligations under this Lease, Tenant shall convey, grant and assign (or
cause to be conveyed, granted and assigned) to Landlord a lien on, security
interest in and assignment of (collectively, "LANDLORD'S LIEN") all of the
right, title and interest which is now owned or hereafter acquired by Tenant or
either of them or any affiliate of either of them in each other parcel of land
(together with all improvements thereon and appurtenances thereto, collectively,
the "PROJECT PARCELS") upon which Tenant's Project, or any part thereof, is to
be located. Without limiting the foregoing, Landlord's Lien shall automatically
extend to and cover any after acquired right, title, or interest in any Project
Parcel (including, without limitation, a fee interest therein). Tenant shall,
at Landlord's request, execute and deliver (or cause to be executed and
delivered) (in recordable form, if appropriate) any instrument reasonably
necessary or appropriate to subject to Landlord's Lien any such after acquired
property, when, and if, Tenant or any affiliate acquires such property. In
addition, if, upon the Start Date, neither Tenant nor any affiliate has yet
acquired any right, title or interest in a Project Parcel, Tenant shall convey,
grant and assign (or cause to be conveyed, granted and assigned) the Landlord's
Lien in such Project Parcel immediately after Tenant or any affiliate has
acquired any right, title or interest therein.
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31.2. GRANT OF SECURITY INTERESTS IN FURNITURE, FIXTURES AND EQUIPMENT.
Prior to the Start Date, Tenant shall, and as additional security for the
payment and performance of Tenant's obligations under this Lease, grant (or
cause to be granted) to Landlord a security interest (the "LANDLORD'S SECURITY
INTEREST") in all items of personal property, whether tangible or intangible,
and whether now owned or hereafter acquired, owned, used or held in connection
with the ownership, operation or maintenance of Tenant's Project, including,
without limitation, all furniture, fixtures and equipment (collectively, the
"FF&E"), whether such items are to be located or used upon the Leased Premises
or upon one more the Project Parcels. Nothing contained herein shall prevent
Tenant from disposing of items of FF&E in the ordinary course of Tenant's
business so long as the FF&E maintained by Tenant is at all times sufficient for
the operation of Tenant's Project.
31.3. PERFECTION AND PRIORITY.
31.3.1. FORMS OF CONVEYANCE. The Landlord's Lien in a Project
Parcel shall be evidenced by a recorded deed of trust, fixture filing, security
agreement and assignment of leases and rents in a commercially reasonable form,
reasonably acceptable to Landlord and Tenant. The Landlord's Security Interest
shall be evidenced by a written security agreement and shall be perfected by the
filing and recordation of appropriate financing statements, all in commercially
reasonable forms, reasonably acceptable to Landlord and Tenant.
31.3.2. PRIORITY. Subject to the following provisions of this
Section 31.3.2, each of Landlord's Lien and Landlord's Security Interest shall
be prior to all other liens and encumbrances on the interests of Tenant or
either of them or any affiliate of either of them, and, concurrently with the
grant of each Landlord's Lien in a Project Parcel (and concurrently with the
acquisition of any after acquired title therein), Tenant shall provide Landlord
with an ALTA lender's policy of title insurance (or an endorsement thereto, in
the case of any after acquired title), in the amount of the current market value
of the subject Project Parcel, as reasonably demonstrated by Tenant's delivery
of an escrow closing statement for its purchase of such parcel or other evidence
of value which is reasonably acceptable to Landlord, insuring the priority of
Landlord's Lien in such collateral. Landlord's Lien and Landlord's Security
Interest shall be subordinated to other financing ("PRIOR DEBT") which satisfies
the following conditions:
31.3.2.1. The amount of the Prior Debt encumbering the Project
Parcels and the FF&E shall not exceed seventy-five percent (75%) of the Fair
Market Value, determined in the manner described in Section 31.4 below, of the
aggregate of the Project Parcels (including improvements) and FF&E in which
Landlord has a security interest.
31.3.2.2. The amount of the Prior Debt encumbering the Project
Parcels shall not exceed seventy percent (70%) of the Fair Market Value,
determined in the manner described in Section 31.4 below, of the aggregate of
the Project Parcels (including improvements) in which Landlord has a security
interest.
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31.3.2.3. The Prior Debt shall specifically provide that Landlord
shall receive notice of any default thereunder and shall have the right to cure
any such default to the extent that Tenant is afforded any such cure rights.
31.3.2.4. Tenant shall provide Landlord with a title insurance
policy, or an appropriate endorsement to Tenant's existing title insurance
policy with respect to the subject collateral, insuring Tenant's subordinated
security interest in an amount equal to the Fair Market Value of that
collateral.
31.3.2.5. Landlord shall have the right to review the loan
documents for the Prior Debt to verify that the conditions to the subordination
of Landlord's security interest, as set forth herein, have been satisfied.
31.4. FAIR MARKET VALUE. Tenant shall provide Landlord with an
appraisal of the "Fair Market Value" of the Project Parcels and of the FF&E
prior to any subordination of Landlord's security interest hereunder. Tenant's
appraisal shall be prepared by a licensed MAI or other qualified appraiser.
Unless Landlord disapproves such appraisal within ten (10) days of its receipt
of the same, the value shown therein shall be deemed to be the Fair Market Value
of the subject collateral; provided that: if Landlord, acting reasonably and in
good faith, disapproves such appraisal, then Landlord shall appoint its own
qualified MAI appraiser within ten (10) days after receipt of Tenant's
appraisal, and Landlord's appraiser shall give its opinion as to the Fair Market
Value of the subject collateral within thirty (30) days after being so
appointed. If the values determined by Landlord's appraiser and Tenant's
appraiser do not differ by more than five percent (5%) of the lower appraisal,
then the "Fair Market Value," as used herein, shall mean the arithmetic average
of such two (2) appraisals. If the two appraisals differ by more than five
percent (5%) of the lower appraisal, then the two appointed appraisers shall
agree upon a third qualified appraiser within ten (10) days after the expiration
of such thirty (30) day period who shall be given copies of the two (2)
preceding appraisals and who shall determine the Fair Market Value within
fifteen (15) days after such third appraiser is engaged, provided that such
final Fair Market Value shall not be greater than the higher of the two previous
appraisals nor less than the lower of the two previous appraisals. Landlord and
Tenant shall each bear the cost of their own appraiser and shall share equally
the cost of the third appraiser. For purposes of determining the ratios under
Section 31.3 in the case of Prior Debt which is construction or FF&E financing,
the Fair Market Value shall be determined on a "completed project" basis.
31.5. FURTHER ASSURANCES. Landlord shall execute, acknowledge and
deliver to Tenant or to Tenant's lender and/or title insurer, as designated by
Tenant, such evidence of the subordination of Landlord's Lien and Landlord's
Security Interest required hereunder as Tenant may reasonably request.
32. TENANT'S OPTION AND RIGHT OF FIRST REFUSAL TO PURCHASE THE LEASED
PREMISES.
32.1. OPTION TO PURCHASE. Provided that the Lease has not expired, or
been terminated and remains in full force and effect, and provided further that
Tenant is not in default in
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payment of Rent, Tenant shall have the option to purchase the Leased Premises
on the earlier of (i) one hundred twenty (120) months from the first day of
the first calendar month following the Effective Date (the "First Option
Date"), or (ii) the date of the death of the survivor of Xxxxxxx X. Xxxxxx or
Xxxx Xxxxxx (the "ALTERNATE OPTION DATE"), for a purchase price determined as
set forth below (the "OPTION PURCHASE PRICE"). Such option shall be
exercised, if at all, by written notice to Landlord not later than three (3)
months prior to the First Option Date or not later than three (3) months
following the Alternate Option Date. The closing date (hereinafter, the
"PURCHASE OPTION CLOSING DATE") shall be within six months of the Option
Date. The Option Purchase Price shall be paid in cash or by cash equivalent
upon the Purchase Option Closing Date. If Tenant fails to exercise its
option in a timely manner as provided herein, the provisions of this Article
32 shall have no further force or effect.
To determine the Option Purchase Price, Landlord and Tenant shall each
select a licensed MAI or other qualified appraiser to determine the Fair Market
Value of the Leased Premises. The appraisers selected by Landlord and Tenant
shall jointly select a third licensed MAI or other qualified appraiser. Each
appraiser so selected shall prepare, within thirty (30) days, a written
appraisal report setting forth its opinion of the Fair Market Value of the
Leased Premises. The opinions of Fair Market Value shall be ranked according to
value, from highest to lowest, and the middle opinion of Fair Market Value shall
be the Option Purchase Price. Landlord and Tenant shall each bear the cost of
their own appraiser and shall share equally the cost of the third appraiser.
Upon exercise of Tenant's option to purchase the Leased Premises
hereunder, Landlord shall convey title to the Leased Premises to Tenant at
the close of escrow by grant, bargain and sale deed subject only to matters
shown in Tenant's leasehold title policy delivered pursuant to Article 5 of
this Lease and matters caused or consented to in writing by Tenant. At close
of escrow, Landlord shall provide Tenant with a CLTA owner's policy of title
insurance, in the face amount of the Option Purchase Price, and otherwise in
a form and from an insurer or insurers reasonably satisfactory to Tenant,
with such endorsements and reinsurance as Tenant may reasonably request,
insuring Tenant's title to the Leased Premises, at Tenant's expense.
Closing costs other than title insurance shall be allocated in accordance
with the then prevailing practice in Las Vegas, Nevada. Rent shall be prorated
as of the date of the close of escrow. At the close of escrow, Landlord shall
provide Tenant with a suitable affidavit satisfying the requirements of the
Internal Revenue Code relating to withholding of a portion of the Option
Purchase Price in the event of a purchase from a foreign person.
Landlord and Tenant shall promptly upon request prepare, execute and
deliver such further documents, and shall promptly obtain beneficiary statements
and similar certificates and perform such other acts as shall from time to time
be reasonably required in effecting the close of escrow and the better
perfecting, assuring, conveying, assigning, transferring and confirming unto
Tenant the Leased Property and the rights to be conveyed or assigned.
If Tenant elects to purchase the Leased Premises, Landlord may elect to
participate in a tax-free exchange under Section 1031 of the Internal Revenue
Code. Tenant agrees to cooperate with such an exchange by Landlord, so long as
such cooperation is without cost to Tenant and does not materially affect
Tenant's purchase.
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32.2. TENANT'S RIGHT OF FIRST REFUSAL. During such time as the Lease
is in full force and effect and has not expired or been terminated, and provided
Tenant is not then in default in the payment of Rent, Tenant shall have a right
of first refusal to purchase the Leased Premises in the event that Landlord
shall desire to sell and shall have a bona fide offer to purchase the Lease
Premises, whether directly, or indirectly (such as by sale of stock in a
corporate Landlord or by transfer of a beneficial interest in a trust), which
Landlord wishes to accept. In the event of any such offer, Landlord shall
notify Tenant and provide Tenant with a copy of the offer (the "Notification
Date"). Tenant shall have thirty (30) days from the Notification Date within
which to exercise its right of first refusal. In the event Tenant exercises its
right of first refusal, Tenant shall purchase the Leased Premises on the same
terms and conditions and at the same price specified in such offer, provided
that the closing date shall be the later of the time for closing set forth in
the offer, or sixty (60) days from the Notification Date. If Tenant does not
exercise its right of first refusal with respect to a transaction and that
transaction is not finalized on the terms presented to Tenant within one (1)
year after the expiration of Tenant's right of first refusal, the right of first
refusal shall be reinstated as to that proposed purchase. If Tenant does not
exercise its right of first refusal with respect to a transaction and that
transaction is finalized within such one (1) year period, the transferee shall
take free of Tenant's right of first refusal. Tenant's failure to exercise its
right of first refusal hereunder shall not affect Tenant's right to exercise any
OPTION TO EXTEND THE LEASE TERM, ANY SUBSEQUENT RIGHT OF FIRST REFUSAL, OR
TENANT'S PURCHASE OPTION.
33. BINDING OBLIGATION. Tenant hereby represents and warrants to Landlord
that this Lease and the consummation of the transactions contemplated hereby is
valid and binding upon Tenant (and the individuals executing this Lease on
behalf of Tenant represent and warrant that they are authorized to so act) and
does not constitute a default (or an event which with notice or passage of time
or both will constitute default) under any contract to which Tenant is a party
or by which Tenant is bound. Prior to the Effective Date, Tenant shall provide
Landlord with a certified resolution of the board of directors of Tenant
authorizing the transactions contemplated hereby and the execution and delivery
of this Lease by the persons executing the same on behalf of Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective as of the Effective Date.
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LANDLORD:
XXXXXXX X. XXXXXX and XXXX
XXXXXX, Trustees of the
XXXXXXX X. XXXXXX and XXXX
XXXXXX FAMILY TRUST, u/a/d
July 14, 1993
By:
---------------------------------
Xxxxxxx X. Xxxxxx, Trustee
Date:
-------------------------------
By:
---------------------------------
Xxxx Xxxxxx, Trustee
Date:
-------------------------------
TENANT:
BOARDWALK CASINO, INC.,
a Nevada corporation
By:
---------------------------------
Its:
--------------------------------
Date:
-------------------------------
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EXHIBIT "A"
THE LAND
PARCEL I:
A portion of the Northeast Quarter (NE1/4) of the Southeast Quarter (SE1/4) of
Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., more particularly
described as follows:
BEGINNING at the East Quarter (E1/4) corner of Section 20, Township 21 South,
Range 61 East, M.D.B. & M.; thence North 88 DEG. 44' 24" West, 110.02 feet to a
point on the west right of way line of U.S. Highway No. 91 South; thence South
0 DEG. 02' 15" West along said right of way line 215.00 feet to the TRUE POINT
OF BEGINNING; thence continuing South 0 DEG. 02' 15" West, 150.00 feet to a
point; thence North 89 DEG. 57' 47" West, 167.00 feet to a point; thence North
00 DEG. 02'00" West a distance of 2.92 feet to a point; thence continuing North
0 DEG. 02' 15" East, 150.00 feet to a point; thence South 89 DEG. 57' 47" East,
167.00 feet to the TRUE POINT OF BEGINNING.
Together with an easement for ingress and egress purposes over the South 28.00
feet of the North 30.00 feet of the East 239.03 feet of that portion of Section
00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., in the County of Xxxxx, State
of Nevada, as follows:
COMMENCING at the East Quarter (E1/4) corner of said Section 20; thence along
the East line of said Section, North 0 DEG. 50' 24" West, 30.01 feet to the
Southeast corner of the land described in the Deed to Xxxxxx X. Xxxxxx, recorded
March 4, 1959 as Document No. 153963 of Official Records of said County; thence
along the South line of said land, North 88 DEG. 57' 30" West, 109.76 feet to a
point in the West line of U.S. Highway 91; thence along said West line South
0 DEG. 02' 15" West, 215.00 feet to the true point of beginning; thence
continuing along the said West line, South 0 DEG. 02' 15" West, 180.00 feet;
thence North 88 DEG. 57' 47" West, 600.00 feet; thence North 0 DEG. 02' 15"
East, 180.00 feet; thence South 88 DEG. 57' 47" East, 600.00 feet to the true
point of beginning.
PARCEL II:
The South 150.00 feet of the West 72.00 feet of the East 239.03 feet, said
distances being measured along or parallel with the North and East lines of that
portion of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., in the
County of Xxxxx, State of Nevada, described as follows:
COMMENCING at the East Quarter (E1/4) corner of said Section 20; thence along
the East line of said Section, North 0 DEG. 50' 24" West, 30.01 feet to the
Southeast corner of the land described in the Deed to Xxxxxx X. Xxxxxx recorded
March 4, 1959, as Document Xx. 000000 xx Xxxxxxxx Xxxxxxx xx xxxx Xxxxxx; thence
along the South line of said land, North 88 DEG. 57' 30" West, 109.76 feet to a
point in the West line of U.S. Xxxxxxx Xx. 00; thence along said West line,
South 0 DEG. 02' 15" West, 215.00 feet to the true point of beginning; thence
continuing along the said West line, South 0 DEG. 02' 15" West, 180.00 feet;
thence North 88 DEG. 57' 47" West, 600.00 feet; thence
X-0
Xxxxx 0 XXX. 02' 15" West, 180.00 feet; thence South 88 DEG. 57' 47" East,
600.00 feet to the true point of beginning.
Together with an easement for ingress and egress purposes over the South 28.00
feet of the North 30.00 feet of the East 239.03 feet of that portion of Section
00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., in the County of Xxxxx, State
of Nevada, as follows:
COMMENCING at the East Quarter (E1/4) corner of said Section 20; thence along
the East line of said Section, North 0 DEG. 50' 24" West, 30.01 feet to the
Southeast corner of the land described in the Deed to Xxxxxx X. Xxxxxx, recorded
March 4, 1959 as Document No. 153963 of Official Records of said County; thence
along the South line of said land, North 88 DEG. 57' 30" West, 109.76 feet to a
point in the West line of U.S. Highway 91; thence along said West line South
0 DEG. 02' 15" West, 215.00 feet to the true point of beginning; thence
continuing along the said West line, South 0 DEG. 02' 15" West, 180.00 feet;
thence North 88 DEG. 57' 47" West, 600.00 feet; thence North 0 DEG. 02' 15"
East, 180.00 feet; thence South 88 DEG. 57' 47" East, 600.00 feet to the true
point of beginning.
A-2
EXHIBIT "B"
SCHEDULE OF LEASES
1. Lease Agreement dated May 17, 1988 by and between Xxxxxxx X. Xxxxxx and
Xxxx X. Xxxxxx as Landlord and Xxxx X. Xxx dba Xxxx X. Xxx Enterprises as
Tenant.
a. Assignment and Assumption Agreement dated July 25, 1988 by and between
Xxxx X. Xxx dba Xxxx X. Xxx Enterprises as Assignor and IGT, Inc., a Nevada
corporation, as Assignee.
b. Sublease Agreement dated March 15, 1990 by and between IGT, Inc., a
Nevada corporation, as Lessor and Schiff Enterprises, a Nevada Limited
Partnership, as Lessee.
2. Certain other month to month tenancies, terminable upon ninety (90) days
notice, as follows:
a. Preferred Equities Corp.
b. Smokeys
c. Boardwalk Offices
B-1
EXHIBIT "C"
PERMITTED EXCEPTIONS
1. Taxes for the fiscal year 1996-1997, the first installment will become
delinquent August 19, 1996.
2. The lien of supplement taxes, that may be due, but not assessed, for new
construction by the Xxxxx County Assessor per N.R.S. 361.260.
3. The hereinabove described real property is located within the boundaries of
the Xxxxx County Sanitation District and is subject to any fees that may be
charged against property in said District.
4. Special Assessment in Xxxxx County Improvement District 97A amount of
$122,044.49, 2nd installment paid, 3rd installment due February 1, 1997.
5. Special Assessment in Xxxxx County Improvement District 97B, amount of
$3,854.10 as disclosed by Book 941010 as Document No. 01177, recorded
October 10, 1994 (method of payment unknown at this time).
6. Reservations as contained in the Patent from the United States of America
Recorded : August 10, 1933
Document No. : 49724 Book No. : 20 of Deeds
Pages : 536 and 537
Official Records, Xxxxx County, Nevada.
"Subject to any vested and accrued water rights for mining, agricultural,
manufacturing, or other purposes, and rights for ditches and reservoirs
used in connection with such water rights as may be recognized and
acknowledged by the local customs, laws and decisions of courts; and there
is reserved from the lands hereby granted, a right of way thereon for
ditches or canals constructed by the authority of the United States."
7. Any easements for water well and water lines over an undisclosed area as
disclosed by Deed recorded December 30, 1960 as Document No. 222926,
Official Records.
8. A Right of Way and Easement over, under, upon and across a portion of said
land
Granted to : Southern Nevada Power Co.
For : power and communication purposes
Recorded : April 17, 1961
Document No. : 237071 Book No. : 293
Official Records, Xxxxx County, Nevada.
Affects: The South 10 feet of said land.
9. A Right of Way and Easement over, under, upon and across a portion of said
land
Granted to : Southern Nevada Power Co.
C-1
For : power and communication purposes
Recorded : April 18, 1961
Document No. : 237215 Book No. : 293
Official Records, Xxxxx County, Nevada' as follows:
COMMENCING at the East Quarter corner of said Section 20; thence North 88
DEG. 44' 24" West, 110.02 feet to the West line of U.S. Highway No. 91;
thence South 0 DEG. 02' 15" West along said West line, 215.00 feet to the
POINT OF BEGINNING; thence continue South 0 DEG. 02' 15" West, 150.00 feet;
thence North 89 DEG. 57' 47" West, 167.00 feet; thence North 0 DEG. 02' 15"
East, 150.00 feet; thence South 89 DEG. 57' 47" East, 167.00 feet to the
POINT OF BEGINNING.
10. A Right of Way and Easement over, under, upon and across a portion of said
land
Granted to : Southern Nevada Power Co.
For : power and communication purposes
Recorded : May 2, 1961
Document No. : 239170 Book No. : 295
Official Records, Xxxxx County, Nevada.
Affects the South 6 feet of said land.
11. Terms and conditions contained in Indemnification Agreement by and between
Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, Husband and Wife, and Nevada Power
Company, a Nevada Corporation
Recorded : February 1, 1988
Document No. : 00651 Book No. : 880201
Official Records, Xxxxx County, Nevada.
12. Terms and conditions contained in Access To Equipment Agreement by and
between Nevada Power Company, a Nevada Corporation and Xxxxxxx X. Xxxxxx
Recorded : June 8, 1988
Document No. : 00611 Book No. : 880608
Official Records, Xxxxx County, Nevada.
13. A Perpetual Aviation Easement granted to Xxxxx County
Recorded : September 1, 1988
Document No. : 00572 Book No. : 880901
Official Records, Xxxxx County, Nevada.
14. Deed of Trust to secure an indebtedness of the amount stated herein
Dated : May 24, 1991
Trustor : Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx
Trustee : National Title Co., a Nevada corporation
Beneficiary : American Life and Casualty, an Iowa corporation
Amount : $2,000,000.00
Recorded : May 24, 1991
Document No. : 01505 Book No. : 910524
C-2
Official Records, Xxxxx County, Nevada.
15. The existing leases and/or month to month tenancies set forth and described
in the Schedule of Leases, attached hereto as Exhibit "B" to the Lease.
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