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EXHIBIT 10.12
LEASE AGREEMENT
BETWEEN
NEW YORK - NEW YORK HOTEL, LLC
A NEVADA LIMITED LIABILITY COMPANY
"LANDLORD"
AND
IL FORNAIO (AMERICA) CORPORATION
"TENANT"
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TABLE OF CONTENTS
ARTICLE I
DESCRIPTION AND LOCATION OF PREMISES............................... 1
1.1 Premises .......................................... 1
1.2 Relocation of Premises ............................ 1
1.3 Modification of Premises .......................... 2
ARTICLE 2
IMPROVEMENT OF PREMISES ........................................... 3
2.1 Landlord's Work ................................... 3
2.2 Tenant's Work ..................................... 3
2.3 Tenant's Obligations Before Commencement Date ..... 3
2.4 Failure of Tenant to Perform ...................... 4
2.5 Condition of Premises ............................. 4
2.6 Refurbishment ..................................... 5
ARTICLE 3
TERM .............................................................. 5
3.1 Lease Term ........................................ 5
3.2 Holding Over ...................................... 5
3.3 Option to Renew ................................... 5
ARTICLE 4
RENT .............................................................. 6
4.1 Base Rent ......................................... 6
4.2 Percentage Rent ................................... 6
4.3 Lease Year ........................................ 6
4.4 Gross Sales ....................................... 6
4.5 Percentage Rent Payments .......................... 7
4.6 Books and Records; Audit .......................... 8
4.7 Place for Payments ................................ 9
4.8 Interest .......................................... 9
4.9 Late Charge ....................................... 9
4.10 Failure to Achieve Minimum Sales .................. 9
ARTICLE 5
GUEST RELATIONS; COMPLIMENTARIES .................................. l0
5.1 Standard of Operations ............................ 10
5.2 Room Charges ...................................... 10
5.3 Room Charge Accountings ........................... 10
5.4 Collections ....................................... 11
5.5 Complimentaries ................................... 11
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ARTICLE 6
EMPLOYEES; BONDING ....................................................... 11
6.1 Staffing .................................................... 11
6.2 Licenses .................................................... 11
6.3 Restricted Areas ............................................ 12
6.4 Bonding ..................................................... 12
6.5 Tenant's Employees .......................................... 12
ARTICLE 7
POSSESSION AND SURRENDER OF PREMISES ..................................... 12
7.1 Surrender .................................................. 12
7.2 Fixtures ................................................... 12
7.3 Removal of Trade Fixtures .................................. 12
7.4 Failure to Surrender ....................................... 13
ARTICLE 8
USE OF PREMISES
8.1 Permitted Use
8.2 Tenants' Trade Name......................................... 13
8.3 Liquor License.............................................. 13
8.4 Product Agreements.......................................... 14
8.5 Prohibited Uses............................................. 14
8.6 Approval of Fixtures and Equipment.......................... 15
8.7 Maintenance of Personal Property............................ 15
8.8 Compliance with Law......................................... 15
8.9 Rules and Regulations....................................... 15
8.10 Business Practices and Minimum Hours of Operation .......... 15
8.11 Private Parties............................................. 16
8.12 Photographic Services....................................... 16
8.13 Interference with Other Tenants............................. 16
8.14 Refunds and Settlements by Landlord......................... 16
8.15 Advertising and Signage..................................... 17
8.16 Intellectual Property....................................... 17
8.17 Security.................................................... 17
8.18 Conduct of Tenant........................................... 17
8.19 Emissions and Hazardous Materials........................... 18
8.20 Exclusive Use............................................... 20
ARTICLE 9
ALTERATIONS AND IMPROVEMENTS ............................................. 20
ARTICLE 10
LANDLORD'S REPAIR OBLIGATION ............................................. 20
ARTICLE 11
PARKING AND COMMON AREAS ................................................. 20
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ARTICLE 12
TAXES ...................................................................... 21
12.1 Personal Property Taxes ................................... 21
12.2 Other Taxes ............................................... 21
12.3 Statements Received by Landlord ........................... 21
12.4 Casino Entertainment Tax
ARTICLE 13
SERVICES TO THE PREMISES ................................................... 22
13.1 Utilities ................................................. 22
13.2 Limitation upon Landlord's Obligation ..................... 22
ARTICLE 14
INSURANCE .................................................................. 23
14.1 Liability Insurance ....................................... 23
14.2 Property Insurance ........................................ 23
14.3 Policy Reguirements ....................................... 24
14.4 Hazardous Activities ...................................... 24
14.5 Waiver of Subrogation ..................................... 25
ARTICLE 15
LIENS
15.1 Indemnity for Liens ....................................... 25
15.2 Prevention of Liens ....................................... 25
15.3 Release of Liens .......................................... 25
15.4 Notice of Nonresponsibility ............................... 25
ARTICLE 16
INDEMNIFICATION ............................................................ 26
ARTICLE 17
SUBORDINATION .............................................................. 26
17.1 Subordination of Tenant's Interest ........................ 26
17.2 Priority .................................................. 27
17.3 Attornment ................................................ 27
17.4 Nondisturbance ............................................ 27
ARTICLE 18
ASSIGNMENT AND SUBLETTING .................................................. 27
18.1 Assignment or Sublease without Consent Prohibited ......... 27
18.2 Notice of Proposed Sublease or Assignment ................. 27
18.3 Standards for Consent ..................................... 28
18.4 No Release of Tenant ...................................... 29
18.5 Assumption of Tenant's Obligations ........................ 29
ARTICLE 19
INSOLVENCY AND DEATH ....................................................... 30
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ARTICLE 20
CONDEMNATION ............................................................... 30
20.1 Awards ................................................ 30
20.2 Taking of the Premises ................................ 30
20.3 TAKING of the Hotel ................................... 30
20.4 Deed-in-Lieu .......................................... 30
ARTICLE 21
DESTRUCTION OF PREMISES .................................................... 31
21.1 Landlord's Right of Termination ....................... 31
21.2 Damage Caused by Tenant ............................... 31
21.3 Damage to Hotel ....................................... 31
21.4 Repair Obligations .................................... 31
21.5 Insurance Proceeds .................................... 31
21.6 Rental Abatement ...................................... 32
ARTICLE 22
RIGHT OF ACCESS ............................................................ 32
22.1 Right of Access ....................................... 32
22.2 Inconvenience to Tenant ............................... 32
22.3 Right to Show the Premises ............................ 33
ARTICLE 23
LANDLORD'S RIGHT OF PERFORMANCE ............................................ 33
ARTICLE 24
ESTOPPEL CERTIFICATES ...................................................... 33
ARTICLE 25
TENANT'S DEFAULT ........................................................... 33
25.1 Events of Default ..................................... 33
25.2 Landlord's Remedies ................................... 34
ARTICLE 26
QUIET POSSESSION ........................................................... 35
ARTICLE 27
SALE BY LANDLORD ........................................................... 36
27.1 Landlord's Right to Assign or Transfer ................ 36
27.2 Attornment ............................................ 36
27.3 Release of Landlord ................................... 36
ARTICLE 28
DEFAULT BY LANDLORD ........................................................ 36
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ARTICLE 29
MISCELLANEOUS .............................................................. 36
29.1 Waiver of Jury Trial ................................. 36
29.2 Waiver ............................................... 37
29.3 Force Majeure ........................................ 37
29.4 Delivery of Notices .................................. 37
29.5 Remedies Cumulative .................................. 38
29.6 Successors and Assigns ............................... 38
29.7 Partial Invalidity ................................... 38
29.8 Time of the Essence .................................. 39
29.9 Entire Agreement ..................................... 39
29.10 No Partnership ....................................... 39
29.11 Brokers .............................................. 39
29.12 Captions ............................................. 39
29.13 Usage ................................................ 39
29.14 Governing Law ........................................ 39
29.15 Covenants ............................................ 39
29.16 Joint and Several Obligations ........................ 39
29.17 Submission of Lease .................................. 39
29.18 Liens and Actions Affecting Property ................. 40
29.19 No Memorandum ........................................ 40
29.20 Construction ......................................... 40
29.21 Authority ............................................ 40
ARTICLE 30
DISPUTE RESOLUTION ......................................................... 40
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EXHIBITS
Exhibit "A" Site Plan Showing Premises
Exhibit "B" Work Letter
Exhibit "C" Memorandum of Commencement Date
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LEASE AGREEMENT
THIS LEASE is made and entered into this 15th day of April 1996, by and
between NEW YORK-NEW YORK HOTEL, LLC, a Nevada limited liability company,
herein referred to as "Landlord", and IL FORNAIO (AMERICA) CORPORATION, a
California corporation, herein referred to as "Tenant".
RECITALS
A. Landlord is the owner of that certain real property located
in Las Vegas, Nevada upon which Landlord is constructing a hotel and casino
which will be known as the New York-New York Hotel (the "Hotel"); and
B. Tenant desires to lease an area within the Hotel for the
operation of a full service Italian restaurant and bakery.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant agree as follows:
ARTICLE 1
DESCRIPTION AND LOCATION OF PREMISES
1.1 PREMISES. Landlord, in reliance upon and in consideration of the
representations, warranties, covenants and conditions herein contained on the
part of Tenant, hereby lets and demises to Tenant, and Tenant hereby rents,
hires and takes of and from Landlord for the term and upon the provisions,
covenants and conditions herein set forth, that certain area (the "PREMISES")
cross-hatched on Exhibit "A" attached hereto and incorporated herein by
reference. The Premises consists of approximately 9400 square feet.
1.2 RELOCATION OF PREMISES. Tenant acknowledges that Landlord shall
have an absolute right from time to time to relocate the Premises within the
Hotel at any time during the term hereof (but not for the purpose of leasing the
Premises originally demised hereunder to another restaurant) provided that the
site to which the Premises is relocated (i) shall be approximately the same size
as the original Premises; (ii) shall be on the casino level and shall be exposed
to reasonably equivalent pedestrian traffic; and (iii) shall have an eighteen
(18) foot separation from the Hotel's casino gaming and gaming machines
(hereinafter, the "REQUIRED BUFFER"). Landlord shall notify Tenant of such
relocation not less than sixty (60) days prior to the date thereof and shall
specify in such notice (i) the location to which the Premises is to be
relocated, and (ii) the approximate date of the relocation. Landlord shall
reconstruct on the relocated Premises improvements substantially similar to
those constructed by Tenant at the time of relocation. Rent shall be abated
during any period that Tenant is required to cease business operations in the
Premises originally demised hereunder prior to moving to the relocated Premises;
provided that in no event shall Tenant be required to cease business operations
for more than thirty (30) days prior to moving to the relocated Premises. As of
the latter of the date specified in Landlord's notice to Tenant or ten (10) days
after Landlord has notified Tenant that
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it has completed the improvements to be constructed by Landlord on the relocated
Premises, Tenant shall surrender the Premises originally demised to Tenant
hereunder and move to the relocated Premises. All reasonable out-of-pocket costs
incurred by Tenant in moving to the relocated Premises shall be reimbursed to
Tenant by Landlord. In addition, Landlord shall be responsible for moving
Tenant's furniture, fixtures or equipment as necessary to enable Tenant to use
such items in the relocated Premises or replacing, modifying or reconstructing
such items which cannot be moved. The relocated Premises shall thereafter be
deemed to be the Premises for all purposes of this Lease as if originally
demised to Tenant hereunder. Tenant agrees that, promptly on demand, it shall
execute an amendment to Exhibit A designating the location of the relocated
Premises.
Notwithstanding the foregoing if Tenant is not satisfied with the
location to which the Premises is to be relocated hereunder, Tenant may
terminate this Lease by written notice to Landlord not later than ten (10)
business days after Landlord's notice of an intended relocation. Such notice of
termination shall be effective as of the date of Landlord's proposed relocation,
as specified in Landlord's notice, unless Landlord rescinds its notice of
relocation prior to such date. Upon any termination by Tenant hereunder,
Landlord shall reimburse Tenant for the unamortized cost of Tenant's Work,
together with the unamortized cost of refurbishment incurred by Tenant pursuant
to Section 2.6 and the unamortized cost of Tenant's furniture, fixtures and
equipment which are not removed from the Premises by Tenant (all amortized using
the straight-line method over the initial Lease Term, or, in the case of
refurbishment pursuant to Section 2.6 which occurs during a renewal term, over
the applicable renewal term) (collectively, "TENANT'S UNAMORTIZED COSTS").
1.3 MODIFICATION OF PREMISES. In connection with any remodeling of all
or any portion of the Hotel, Landlord shall have the right to change the
dimensions or reduce the size of the Premises. If a proposed reduction in the
size of the Premises would result in the Premises being less than eighty-five
percent (85%) of its original size, or if, as a result thereof, the remaining
portion of the Premises would not be suitable for the conduct of Tenant's
permitted business hereunder, Tenant shall have the right to terminate this
Lease by written notice to Landlord given within thirty (30) days after Landlord
notifies Tenant of Landlord's intention to remodel. A termination by Tenant
hereunder shall be effective thirty (30) days after the notice of termination is
given to Landlord unless, within such thirty (30) day period, Landlord elects to
relocate the Premises pursuant to Section 1.2 hereof or to rescind its decision
to remodel the Premises. In the event of any remodeling pursuant to this Section
1.3, Landlord shall repair any resulting damage to the Premises. In connection
with any such remodeling, Landlord may require Tenant to cease conducting
business from the Premises for up to thirty (30) days. Rent shall be abated
during any period that Landlord requires Tenant to cease conducting business,
and Base Rent shall be reduced in proportion to any reduction in the floor area
of the Premises hereunder.
Upon any termination by Tenant hereunder, Landlord shall reimburse
Tenant for Tenant's Unamortized Costs.
1.4 CASINO BUFFER. Without limiting the provisions of the preceding
Section 1.3, if the Hotel's casino gaming or gaming machines encroach into the
Required Buffer (other than
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temporary encroachments during remodeling or repair work by Landlord) Tenant may
elect, within six (6) months after the date of such encroachment either (i) to
require Landlord to construct, at Landlord's expense, a demising wall for the
Premises shielding it from such gaming activity; or (ii) to terminate this Lease
as to Tenant's ["outside" eating areas]. In the event of any such partial
termination by Tenant hereunder, the Base Rent shall be reduced in proportion to
the reduction in the floor area of the Premises.
ARTICLE 2
IMPROVEMENT OF PREMISES
2.1 LANDLORD'S WORK. Landlord shall, at its expense, construct the
Premises shell in substantial accordance with plans and specifications prepared
or to be prepared by Landlord's architect, incorporating in such construction
all "LANDLORD'S WORK" set forth in the "WORK LETTER" attached hereto as Exhibit
"B". Landlord represents and warrants to Tenant that Landlord's Work will be
constructed in compliance with all applicable laws, including building codes,
and will conform in all material respects to Landlord's Building Plans which
have been made available to Tenant.
2.2 TENANT'S WORK. All work not provided herein to be done by Landlord
shall be performed by Tenant (hereinafter called "TENANT'S WORK"), including,
but not limited to, all work designated as Tenant's Work in the Work Letter, and
Tenant shall do and perform at its expense all Tenant's Work diligently and
promptly and in accordance with the terms of the Work Letter. Tenant covenants
and agrees that it shall expend not less than One Hundred Seventy-Five Dollars
($175) per square foot of usable area in the Premises, not including Tenant's
"in-house" costs or general and administrative overhead, for the construction of
the Tenant' Work.
2.3 TENANT'S OBLIGATIONS BEFORE-COMMENCEMENT DATE. Landlord has made
available to Tenant and to Tenant's architect and space planning consultants,
Landlord's plans and specifications for Landlord's Work ("LANDLORD'S BUILDING
PLANS"). Not later than April 1, 1996, Tenant will deliver to Landlord Tenant's
proposed plans and specifications for Tenant's Work in such detail as Landlord
may reasonably require (a "PRELIMINARY SUBMITTAL"). Within ten (10) business
days after receipt of the Preliminary Submittal, Landlord shall notify Tenant of
any conflicts with Landlord's Building Plans or the Work Letter or any other
failure to meet with Landlord's approval. Tenant shall, not later than May 1,
1996, submit "FINAL CONSTRUCTION DOCUMENTS" based upon the Preliminary Submittal
and incorporating Landlord's comments thereto. Landlord shall notify Tenant of
its approval or disapproval of the Final Construction Documents within ten (10)
days after receipt. Upon approval, Landlord shall return one ( 1 ) set of
approved Final Construction Documents to Tenant and the same shall become a part
hereof by this reference as Exhibit "B-2". Approval of construction documents
by Landlord shall not constitute the assumption of any responsibility by
Landlord for their accuracy or sufficiency, or compliance with applicable codes,
and Tenant shall be solely responsible for such construction documents and for
obtaining all governmental approvals which are required for Tenant's Work.
Tenant shall not commence any of Tenant's Work until Landlord has approved
Tenant's Final Construction Drawings in writing.
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Subject to delays in Tenant's Work which are caused by Landlord's
failure to complete the Landlord Work in a timely manner or by Landlord's
failure to allow Tenant's contractors access to the Premises to construct the
Tenant Work or a force majeure event described in Section 29.3 below which
arises from an act or omission of Landlord or Landlord's contractors
(hereinafter, "LANDLORD DELAYS"), Tenant shall complete Tenant's Work by the
later of (i) the date that is one hundred eighty (180) days following the
"DELIVERY DATE," as hereinafter defined, or (ii) December 10, 1996, which
applicable date shall be the "REQUIRED COMPLETION DATE". Landlord shall give
Tenant five (5) days prior written notice of the Delivery Date, such Delivery
Date being the date upon which (i) Landlord's Work in the Premises has been
substantially completed in accordance with the requirements therefor and (ii)
the Premises are available for the commencement of Tenant's Work. Tenant hereby
releases Landlord and its contractors from any claim whatsoever for damages
against Landlord or its contractors for any delay in the date on which the
Premises shall be ready for delivery to Tenant or for any delay in commencing or
completing any of Landlord's Work. If the Delivery Date does not occur on or
before December 31, 1996, Tenant shall have the right to terminate this Lease by
written notice to Landlord at any time prior to the Delivery Date.
2.4 FAILURE OF TENANT TO PERFORM. The parties recognize that it would
be extremely difficult or impossible to determine Landlord's damages resulting
from Tenant's failure to open for business fully fixtured, stocked and staffed
on the Required Completion Date, including, but not limited to, damages from
loss of Percentage Rent (hereinafter defined) from Tenant and other tenants,
diminished leaseability, and/or mortgageability and damage to the economic value
of the Hotel. Accordingly, if Tenant fails to proceed diligently with Tenant's
Work or to open for business fully fixtured, stocked and staffed on or before
the Required Completion Date for any reason other than Landlord Delays, such
failure shall be a Tenant Event of Default and Landlord may, without notice or
demand and in addition to the right to exercise any other remedies and rights
herein or at law provided, proceed with Tenant's Work using any contractor
Landlord desires and making any changes or revisions to Landlord's Work required
because of any delay or failure of Tenant to perform its obligations hereunder,
all at Tenant's expense. In addition, Landlord shall have the right to collect
rent from the Required Completion Date in an amount equal to the Base Rent
(hereinafter defined) and other additional rent and other amounts payable by
Tenant hereunder, and, provided that Tenant's failure is not the result of
Landlord Delays or a force majeure event described in Section 29.3 below,
together with an amount equal to fifty percent (50%) of 1/365ths of the Base
Rent for each day that Tenant has failed to open for business on and after the
Required Completion Date, which latter amount shall be in lieu of Percentage
Rent that might have been earned had Tenant opened in a timely fashion. In the
event that Tenant fails to make a timely Preliminary Submittal or to timely
submit its Final Construction Documents, as provided in this Lease, then
Landlord shall have the right, in addition to its other rights and remedies as
herein provided, to collect from Tenant One Hundred Dollars ($100.00) per
calendar day for each day that such plans are not so submitted. All remedies in
this Lease or at law provided shall be cumulative and not exclusive and shall
survive the expiration of the Lease Term or the earlier termination of this
Lease.
2.5 CONDITION OF PREMISES. Tenant's taking possession of the Premises
for the construction of Tenant's Work shall be conclusive evidence of Tenant's
acceptance thereof in
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good order and satisfactory condition; except for such matters as Tenant shall,
within thirty (30) days after taking possession of the Premises, specify in a
written notice to Landlord (hereinafter, "PUNCH LIST ITEMS"). Landlord shall
diligently correct all Punch List Items which constitute defects in Landlord's
Work. Tenant agrees that no representations respecting the condition of the
Premises or the existence or non-existence of Hazardous Materials (hereinafter
defined) in, on or about the Premises, no warranties or guarantees, expressed or
implied, with respect to workmanship or any defects in material, and no promise
to decorate, alter, repair or improve the Premises either before or after the
execution hereof, have been made by Landlord or its agents to Tenant unless the
same are contained herein.
2.6 REFURBISHMENT. Tenant agrees that it will refurbish the Premises at
least once during the initial Term, as defined in Section 3.1, and at least once
during the renewal terms, if any, according to plans which are approved by
Landlord as provided in Article 9 below. Notwithstanding the above, Tenant shall
maintain the Premises and Tenant's property as required by Section 8.8 below
throughout the Term of this Lease.
ARTICLE 3
TERM
3.1 LEASE TERM. The term (the "TERM") of this Lease shall be for a
period of Ten (10) years, commencing on the earlier of (i) the Required
Completion Date (but in no event earlier than the date upon which the Hotel is
open to the public); or (ii) the first date upon which the Premises is open for
business to the general public (the "OPENING DATE"), unless terminated earlier
as elsewhere herein provided. The date upon which the Term commences shall be
referred to herein as the "COMMENCEMENT DATE". At such time as the Commencement
Date has been determined, Landlord shall insert the Commencement Date and the
expiration date of the Term on Exhibit "C" attached hereto and deliver a copy
thereof to Tenant, which shall thereafter be incorporated in, and form a part
of, this Lease.
3.2 HOLDING OVER. Should Tenant hold possession of the Premises with
the consent of Landlord after the expiration of the stated Term of this Lease,
such holding over shall create a tenancy from month to month only, upon the same
terms and conditions as are herein set forth except that the Percentage Rent and
the Base Rent shall be equal to one hundred twenty-five percent (125%) of the
Percentage Rent and the Base Rent which were payable during the last month of
the Lease Term if Landlord gives Tenant written notice of such increase, which
notice may not be given more than sixty (60) days prior to the expiration of the
Term.
3.3 OPTION TO RENEW. Tenant shall have two (2) five (5) year options to
renew the Term, each such option to be exercised, if at all, by written notice
to Landlord not later than one hundred eighty (180) days prior to the
expiration of the current Term. Base Rent, as well as the Six Million Dollar
($6,000,000) "break point" set forth in Section 4.2 below, shall be adjusted on
the first day of the first renewal term and annually thereafter, based on CPI-U
Index increase, all items, Los Angeles -Anaheim -Long Beach (1982-84=100).
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ARTICLE 4
RENT
4.1 BASE RENT. Tenant shall pay minimum rent to Landlord during the
Term of the Lease at the rate of * per month for years 1 through 10, (the
"BASE RENT"), in advance, beginning on the Commencement Date and continuing on
the first day of each calendar month thereafter. If the month in which the Term
commences or ends not a full calendar month, then the Base Rent for such month
shall be prorated on the basis of the actual number of days in such month.
4.2 PERCENTAGE RENT. Tenant shall pay to Landlord at the time and in
the manner set forth herein the amount by which the following applicable
percentage of Gross Sales during each month of the Lease Year exceeds the Base
Rent for such period (hereinafter called the "PERCENTAGE RENT"):
Lease Year Percentage Rental Payable
---------- -------------------------
1 Through 10 *
*
The * ) break point shall be adjusted in accordance with Section 3.3
above.
4.3 LEASE YEAR. "LEASE YEAR," as used herein, means each calendar year
during the Term, together with the "Partial Lease Year" which begins on the
Commencement Date and ends on December 31 of the year in which the Commencement
Date occurs and the Partial Lease Year, if any, which ends on the date upon
which the Term expires or the Lease is otherwise terminated.
4.4 GROSS SALES. As used in this Lease, "GROSS SALES" means the
aggregate selling price of all products, merchandise and services ("PRODUCTS")
sold in, upon or from the Premises by Tenant, its subtenants, licensees and
concessionaires, personally or from any vending or coin operated or token
operated device, whether for check, cash, on credit or otherwise, including
other types of "cashless" transactions, excluding only the following:
a. monies and credit received by Tenant in the
settlement of claims for loss or damage of Tenant's Products;
b. an amount equal to the cash refunded or credit
allowed on Products returned by customers and accepted by Tenant, or the amount
of cash refunded or credit allowed thereon in lieu of Tenant's acceptance
thereof, but only to the extent that the sales relating to such Products were
made in, about or from the Premises; provided, however, that in no event shall
the cost or value of any coupons, trading stamps, premiums, advertising or other
promotional devices be deducted or excluded from Tenant's Gross Sales or be
otherwise construed as a discount, refund, allowance or credit hereunder. Any
credit or refund shall reduce Gross Sales for the accounting period during which
such credit or refund is made but shall not affect Gross Sales, for the period
in which the original sale was made;
* Confidential treatment requested
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c. sales taxes, casino entertainment taxes, if any,
so called luxury taxes now or hereafter imposed upon the sale of Products,
whether such taxes are added separately to the selling price thereof and
collected from customers or paid by Tenant and included in the retail selling
price;
d. any sales of product, merchandise, services or the
like by Landlord;
e. promotional or complimentary meals served without
charge (up to one-half percent (.5%) of Gross Sales per month, noncumulative
(provided that promotional OR complimentary meals served during the first ninety
(90) days after the opening of Tenant's restaurant shall not be subject to such
one-half percent (.5%) cap);
f. goods or food items delivered to another
restaurant of Tenant where such delivery is made solely for the convenient
operation of Tenant's business and not for the purpose of consummating a sale
made in, upon or from the Premises;
g. gratuities received by Tenant;
h. wholesale sales made by Tenant;
i. credit card fees; and
j. meals served to Tenant's employees without charge
or at a discount without profit to Tenant.
All gross income of Tenant or any other person, firm or corporation
from any operations in, at or upon the Premises which are not specifically
excluded by this Section shall be included in Gross Sales. All sales originating
at, upon or from the Premises shall be considered as made and completed thereon
and shall be included in Tenant's Gross Sales, even though bookkeeping and
payment of the account therefor may be transferred to another place for
collection, and even though actual filling of the sale or order or actual
delivery of the merchandise may be made from a place other than the Premises. In
the event Tenant elects to allow its customers to make credit purchases, no
credit shall be allowed for uncollected or uncollectible credit accounts. Each
sale upon credit shall be treated as a sale for the full price in the month
during which such sale is made, regardless of the time of when or whether Tenant
shall receive payment therefor. Tenant agrees that it will not directly or
indirectly operate a restaurant which includes the name "IL FORNAIO" at any
other Las Vegas Strip hotel and/or casino property during the Term of this
Lease.
4.5. PERCENTAGE RENT PAYMENTS. On or before the 15th day of each
calendar month during the Term of this Lease (including the calendar month next
succeeding the last month of the Term hereof), Tenant shall deliver to Landlord
a written statement signed and certified by Tenant or an officer of Tenant as
being true and correct, setting forth the amount of Tenant's Gross Sales during
the immediately preceding calendar month, and on the same date Tenant shall
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pay Landlord the percentage rental for the immediately preceding calendar month.
Within thirty (30) days after the end of each Lease Year during the Term of this
Lease, Tenant shall deliver to Landlord a written statement, signed and
certified by Tenant or an officer of Tenant to be true and correct, setting
forth the amount of Tenant's Gross Sales made during each month of the
immediately preceding year. If Tenant has paid Landlord for such Lease Year
Percentage Rent that is less than Tenant is obligated to pay for such period,
Tenant shall pay Landlord the amount of such deficiency concurrently with
Tenant's delivery of its annual report of Gross Sales hereunder. If Tenant has
paid more than the Percentage Rent required to be paid for such period, Landlord
shall credit the amount of such excess against the Base Rent and Percentage Rent
next coming due hereunder from Tenant or, if the Term has expired, Landlord
shall pay Tenant directly.
4.6 BOOKS AND RECORDS; AUDIT. Tenant agrees that it will keep complete
books of accounts reflecting Gross Sales and all of the business activities with
respect to the Premises for at least three (3) years after the expiration of the
applicable Lease Year and will comply with generally accepted accounting
principles ("GAAP"). Said books of account shall, at a minimum, include:
1. Dated and time stamped cash register tapes (customer
receipt and detail audit) which provide a non-resettable, non-clearing gross
sales total and/or consecutively numbered duplicate sales tickets which are to
be dated and time stamped. When consecutively numbered sales tickets are
utilized, Tenant shall maintain the vendor invoice for such sales ticket
purchases, which shall accurately reflect the commencing and ending numbers of
all sequences. Documentation of voided sales must be kept with regular sales
tickets and tapes and originals of voided tickets must be retained.
2. Daily sales summaries showing from the Premises.
3. Monthly sales journals showing breakdown of sales by day.
4. Authenticated bank deposit slips showing deposits of daily
sales. If deposits are not made on a daily basis, then the number of days'
receipts deposited should be shown on the deposit slip and in the monthly sales
journal.
5. Monthly state sales tax returns and cancelled checks
showing payment of those taxes;
6. Relevant portions of Federal Income Tax returns for the
same period of time that Tenant is required to maintain its Federal Income Tax
returns by the Internal Revenue Service.
7. All of Tenant's purchase orders and invoices relating to
the purchase, exchange, or replacement of Products sold or to be sold by Tenant
at, upon, or from the Premises.
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Landlord shall have the right to examine such books and records at any
reasonable time and place. Lessor shall have the right at any time during the
Term and within thirty (30) days after the end of the Term to have an audit
conducted of Tenant's books of account by Landlord's employees or auditors of
Landlord's choice. If any audit reveals Gross Sales were understated by more
than five percent (5%), the entire cost and expense of such audit shall be borne
by Tenant. It is further agreed that an understatement by Tenant of five percent
(5%) or more of Gross Sales during any three (3) months being audited shall be
deemed an Event of Default.
4.7 PLACE FOR PAYMENTS. All Base Rent, Percentage Rent and other monies
required to be paid by Tenant hereunder (collectively referred to herein as
"RENT") shall be paid to Landlord without deduction or offset, and, except as
may be specifically set forth in this Lease without prior notice or demand, in
lawful money of the United States of America, at 0000 Xxx Xxxxx Xxxx. Xxxxx ,
Xxx Xxxxx, Xxxxxx, 00000 or at such other place as Landlord may, from time to
time, designate in writing. If the time for payment of any amount due from
Tenant to Landlord is not set forth in this Lease, such amount shall be due
within five (5) business days after such amount is billed by Landlord.
4.8 INTEREST. Any rent due from Tenant to Landlord which is not paid
when due shall bear interest at two percent (2%) per annum in excess of the
Prime Rate of Interest published from time to time in the "Money Rates" section
of the Wall Street Journal (or a comparable interest rate selected by Landlord
in the event the Wall Street Journal no longer publishes a Prime Rate)
(hereinafter, the "DEFAULT RATE").
4.9 LATE CHARGE. In the event Tenant is more than five (5) days late in
paying any rent due under this Lease more than once during the same Lease Year,
then, beginning with the second such delinquent payment of rent, Tenant shall
pay Landlord a late charge equal to five percent (5%) of the delinquent rent,
and Tenant shall pay an equivalent late charge every ten (10) days thereafter
until the delinquent rent, including all interest and assessed late charges, has
been paid in full. 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 of rent by Tenant and that
such late charge shall be paid to Landlord as liquidated damages for each
delinquent payment, 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 Section
4.7(a) above 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.
4.10 FAILURE TO ACHIEVE MINIMUM SALES. Notwithstanding anything to the
contrary contained herein, Landlord may terminate this Lease, without
compensation to Tenant, in the event that, subsequent to the initial *
period following the Opening Date, Tenant's average monthly Gross Sales is less
than * per month for a period consisting of * consecutive months during
which the occupancy rate for the Hotel's guest rooms is at least * , except to
the extent that Tenant's failure to achieve such minimum
* Confidential Treatment Requested
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monthly Gross Sales is caused by force majeure events described in Section 29.3
below. Termination hereunder shall be upon thirty (30) days written notice.
Tenant acknowledges that Landlord has made no representation to Tenant regarding
anticipated Gross Sales or projected number of visitors and guests in the Hotel.
ARTICLE 5
GUEST RELATIONS; COMPLIMENTARIES
5.1 STANDARD OF OPERATIONS. Tenant and Landlord acknowledge that the
Hotel is a first class hotel (and Landlord hereby agrees to operate it as such)
and that the maintenance of Landlord's reputation and the reputation of the
Hotel, as well as the goodwill of all of Landlord's guests and invitees, is
absolutely essential to Landlord and that any impairment thereof whatsoever will
cause great damage to Landlord. Tenant therefore covenants that it shall operate
the Premises in accordance with the highest standards of honesty, integrity,
quality and courtesy as is customary for a first class restaurant so as to
maintain and enhance the reputation and goodwill of Landlord and the Hotel and
at all times in keeping with and not inconsistent with or detrimental to the
operation by Landlord of an exclusive, first-class resort hotel facility. Tenant
shall continuously monitor the performance of each of Tenant's employees at the
Premises to insure that such standards are consistently maintained. Tenant
therefore further agrees, as a material inducement to Landlord, that repeated
failure to maintain such standards shall be deemed an Event of Default by Tenant
and that repeated complaints from customers or guests which are reasonable and
which are not promptly remedied by Tenant shall be evidence of a failure to
maintain such standards.
5.2 ROOM CHARGES. Tenant may permit Hotel guests to charge
purchases from Tenant to their room account. Tenant shall be solely responsible
for ascertaining that any persons purporting to be Hotel guests are in fact
Hotel guests and shall further be solely responsible for the credit worthiness
of such persons. Landlord shall not be responsible for uncollected or
uncollectible charges; provided that Landlord shall have the duty to use its
reasonable good faith efforts to collect any charges by Tenant's customers to
their hotel rooms. Tenant shall, at Tenant's expense, use Landlord's
point-of-sale system in order to record all guest charges. Tenant agrees to
comply with all rules and regulations which Landlord may, in its reasonable
discretion, from time to time, adopt to facilitate charges to rooms and/or to
minimize uncollected charges.
5.3 ROOM CHARGE ACCOUNTINGS. Landlord shall cause to be
prepared and delivered to Tenant a weekly accounting of all charges to Hotel
guest accounts by Tenant's customers and concurrently therewith shall deliver to
Tenant any sums collected with respect to such charges. If any customer account
was paid by credit card, Landlord shall deduct from the amounts due to Tenant
such charges as the credit card company may assess against or with respect to
the account. Tenant shall have the right to examine Landlords' records with
respect to room charge accountings hereunder and to have an audit performed of
such records not more than once in any Lease Year. If such audit reveals an
understatement of charges to guest room accounts by Tenant's customers of more
than five percent (5%) (and if such error would not have been
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revealed by a review of Landlord's weekly accountings), the reasonable costs of
such audit shall be paid by Landlord.
5.4 COLLECTIONS. In the event that any Hotel guest pays any portion of
his xxxx but refuses to pay any charges of Tenant, Tenant agrees separately to
xxxx such guests and to pursue collection independently of Landlord. In the
event Tenant determines that collection efforts are necessary to collect an
unpaid xxxx by one of its customers, Tenant shall inform Landlord in writing of
the identity of such customer at least five (5) days prior to the commencement
of any collection effort. Any collection efforts by Landlord shall include the
charges of Tenant to the extent that such charges are included in the guest's
hotel xxxx.
5.5 COMPLIMENTARIES. Landlord may desire to provide designated
Hotel guests with complimentary food and beverages ("COMPLIMENTARIES") at the
Premises. From time to time Landlord and Tenant shall develop procedures for
authorization of Complimentaries and for or reimbursement by Landlord of eighty
percent (80%) of the full retail cost thereof and such amounts shall not be
included in the computation of Gross Sales. In the event Tenat desires provide
complimentary food and/or beverages to any of its guests after the first ninety
(90) days after the opening of Tenant's restaurant, Tenant shall be responsible
for payment of the full retail value thereof in excess of one-half of one
percent (.5%) of Ten Gross Sales in any month and the same shall be included in
computation of Gross
ARTICLE 6
EMPLOYEES; BONDING
6.1 STAFFING. Tenant shall staff the Premises with such number of its
employees as are reasonably required for the proper and efficient operation of
Tenant's business. Tenant agrees to adopt its own rules of conduct and personal
appearance standards which are consistent with the first class standards of the
Hotel. So long as mandatory drug testing is permitted under Nevada law, Tenant
shall, at Tenant's expense, require its prospective and present management
employees to participate in any pre- and post-employment drug testing program
which may be established by Landlord for its own employees from time to time.
Should Landlord bring to Tenant's attention a violation of the above rules,
policies or standards by an employee of Tenant, Tenant shall immediately
undertake appropriate action against such employee.
6.2 LICENSES. Tenant acknowledges that Landlord, its parent,
subsidiaries and affiliates are businesses that are or may be subject to and
exist because of privileged licenses issued by governmental authorities. If
requested to do so by Landlord, Tenant shall obtain any license, qualification,
clearance or the like which shall be requested or required of Tenant by Landlord
or any regulatory authority having jurisdiction over Landlord or any parent
company, subsidiary or affiliate of Landlord. If Tenant fails to satisfy such
requirement or if Landlord or any parent company, subsidiary or affiliate of
Landlord is directed to cease business with Tenant by any such authority, or if
Landlord shall in good faith determine that Tenant, or any of its officers,
directors, employees, agents, designees or representatives (a) is or might be
engaged in, or is about to be engaged in, any activity or activities, or (b) was
or is involved in any relationship, either of which could or does jeopardize
Landlord's business or such licenses, or those of its parent, subsidiaries or
affiliates, or if any such license is threatened to be, or is, denied,
curtailed,
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suspended or revoked by reason of any improper activities of Tenant or any such
related person and if, promptly after receiving notice thereof from Landlord
(which notice must contain sufficient particulars to permit Tenant to take
appropriate action), Tenant does not cease such activities or sever the
relationship of any such person to Tenant so as to satisfy Landlord and/or the
appropriate governmental authority, this Lease may be terminated by Landlord
without liability to either party.
6.3 RESTRICTED AREAS. Tenant shall not cause or permit its employees to
enter upon those areas of the Hotel which are designated "Hotel Employees Only".
Access to such areas is to be restricted to the employees of Landlord.
6.4 BONDING. All employees of Tenant who are reasonably expected by
Tenant to perform a portion of their tasks outside of the Premises (including,
for example, employees who are expected to deliver items to rooms in the Hotel)
shall be bonded in such amounts as may be reasonably required by Landlord from
time to time. In no event shall any employee of Tenant perform work outside of
the Premises until the bond for such employee has been delivered to Landlord and
Landlord has approved the same, in writing.
6.5 TENANT'S EMPLOYEES. Tenant shall be responsible for all salaries,
employee benefits, social security taxes, federal and state unemployment
insurance and any and all similar taxes relating to its employees and for
workers' compensation coverage with respect thereto pursuant to applicable law.
Tenant's employees shall not be entitled to participate in, or to receive, any
of Landlord's employee benefit or welfare plans, nor shall they be deemed agents
of Landlord for purposes of this Lease. Tenant shall be responsible for
verifying its employees' work authorizations under federal law, including any
necessary employment verification process under the Immigration Reform and
Control Act of 1986, as amended, before such employees perform services at the
Premises.
ARTICLE 7
POSSESSION AND SURRENDER OF PREMISES
7.1 SURRENDER. Upon any surrender of the Premises, or termination or
expiration of this Lease, Tenant shall redeliver the Premises to Landlord in the
same condition in which it existed at the Opening Date, reasonable wear and
tear, repairs which are the obligation of Landlord and permitted alterations and
installations excepted, and deliver to Landlord all keys for, and all
combinations for locks, safes and/or vaults in the Premises.
7.2 FIXTURES. All fixtures (except trade fixtures) which may be made or
installed or placed by either Tenant or Landlord upon the Premises, either
before or during the Term of this Lease, shall remain upon the Premises and
shall be surrendered with the Premises at the termination of this Lease.
7.3 REMOVAL OF TRADE Fixtures. Upon the termination of this Lease,
Tenant shall be entitled to remove from the Premises all of its trade fixtures,
furnishings and equipment, including the personal property shown on Tenant's
Plans. If Tenant fails to remove any trade
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fixtures from the Premises prior to the end of the Lease Term or prior to any
earlier termination thereof, such trade fixtures shall become Landlord's
property.
7.4 FAILURE TO SURRENDER. If the Premises is not surrendered at the end
of the Lease Term, Tenant shall indemnify Landlord against loss or liability
resulting from delay by Tenant in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant founded on such
delay.
ARTICLE 8
USE OF PREMISES
8.1 PERMITTED USE. The Premises is leased to Tenant solely for the
purpose of conducting thereon on a non-exclusive basis an Italian Restaurant and
Bakery specializing in the sale of Italian food, liquor, bakery goods and
related items of the type now offered at Tenant's existing Il Fornaio
restaurants and bakeries. Tenant may also offer souvenir items for sale so long
as such items do not include the words "New York" or "NY" or show or make
reference to landmarks of New York City or otherwise make use of Landlord's
name, theme or intellectual property. Tenant's initial menu and pricing shall be
subject to the prior written approval of Landlord, which approval shall not be
unreasonably withheld. Tenant shall not use or suffer to be used the Premises,
or any portion thereof, for any other purpose or purposes whatsoever, without
Landlord's written consent therefor first had and obtained, and such consent may
be withheld in Landlord's sole and absolute discretion. Without limiting the
generality of the foregoing, Tenant shall not conduct gaming activities at the
Premises.
8.2 TENANTS' TRADE NAME. Tenant shall conduct business under the trade
name of' "IL FORNAIO" and no other without prior written consent of Landlord.
Tenant shall not conduct any business at any time either before or after the
termination of this Lease, either in the Premises or elsewhere, under a name in
which the words "New York-New York" appear: provided, however, that Tenant may
conduct its business in the Premises under such a name (and the trade name set
forth above) and use the logo of Landlord in advertising, but such approval and
use of logo shall be deemed a revocable license or privilege only, terminable at
any time, which confers no property rights on Tenant, and which, in any event,
shall cease upon the expiration or sooner termination of this Lease. Any such
use shall not occur without the consent required under Section 8.16. Neither
such approval of name and use of logo nor anything herein shall be deemed to
abridge the right of Landlord to grant or license the use of the words "New
York-New York" to any other person at any time. During the Term of this Lease,
and subject to Tenant's reasonable prior consent, Tenant hereby grants Landlord
a license to use Tenant's trade name and any marks related to such trade name in
connection with promotion and advertising.
8.3 LIQUOR LICENSE. Immediately after execution of this Lease, Tenant
shall make application for a liquor license in order to be able to provide
liquor service at the Premises. If Tenant is unable to obtain a liquor license
within ninety (90) days after the commencement of the Lease Term, then Landlord
may treat the same as an Event of Default. Should the Premises open for business
prior to Tenant's obtaining the necessary liquor license(s), Tenant shall apply
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for a temporary liquor license and, until a temporary license is obtained,
Landlord shall have the right, but not the obligation, to provide liquor service
to the Premises at Landlord's expense for so long as Tenant does not hold the
necessary liquor license(s). In such event, Landlord shall be entitled to retain
all revenue derived therefrom and Tenant shall have no claim or right to such
revenue.
8.4 PRODUCT AGREEMENTS. Tenant acknowledges that Landlord has entered
into or may in the future enter into product, service, sponsorship or marketing
agreements with third parties which may require that only certain products may
be offered for sale or use within the Hotel, including the Premises. Tenant
agrees that upon reasonable notice from Landlord it will abide by the terms and
conditions of such agreements as they may relate to the use of either soft-
drink products or non-food products within the Premises so long as (i) the terms
of any such agreements require the third party to supply its product at the
lowest national price; (ii) other than product agreements with Coca-Cola or
PepsiCo, the quality of the subject products is reasonably equivalent to the
quality of similar products which would be available to Tenant in the Las Vegas
marketplace.
8.5 PROHIBITED USES. Tenant shall not permit the Premises to be used
for any of the following purposes:
a. VENDING MACHINES. Tenant shall not, without Landlord's
prior written approval, operate or permit to be operated on the Premises any
coin or token operated vending machines or similar device for the sale or
leasing to the public of any goods, wares, merchandise, food, beverages, and/or
service, including, without limitation, pay telephones, pay lockers, pay
toilets, scales and amusement devices.
b. NO RESIDENTIAL USE. Tenant shall refrain from using or
permitting the use of the Premises or any portion thereof as living quarters,
sleeping quarters or lodging rooms.
c. NO NON-RETAIL USE. Tenant shall refrain from using or
permitting the use of the Premises or any portion thereof for office, clerical
or other nonselling purposes, provided, however, that space in the Premises may
be used for such purposes to the extent reasonably required for the conduct of
Tenant's permitted business.
d. NO FIRE SALES. Tenant shall not, without Landlord's prior
written approval, conduct or permit any fire, bankruptcy or auction sale in, on
or about the Premises.
e. NO OBSTRUCTIONS. Tenant shall not, without Landlord's prior
written approval, cover or obstruct any windows, glass doors, lights, skylights,
or other apertures that reflect or admit light into the Premises.
f. NO ANIMALS. Tenant shall not keep or permit the keeping of
any animals of any kind in, about or upon the Premises without Landlord's prior
written approval.
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g. NO WAREHOUSE USE. Tenant shall not use the Premises for
storage or warehouse purposes beyond such use as is reasonably required to keep
Tenant's business adequately stocked for sales of product and merchandise in, at
or from the Premises.
8.6 APPROVAL OF FIXTURES AND EQUIPMENT. All fixtures and other
equipment to be used by Tenant in, about or upon the Premises which deviate from
the original, approved style and theme of the Premises shall be subject to the
prior written approval of Landlord.
8.7 MAINTENANCE OF PERSONAL PROPERTY. Except as provided for elsewhere
herein. Tenant shall keep and maintain in good order, condition and repair
(including any such replacement and restoration as is required for that purpose)
Tenant's personal property and the Premises and every part thereof and any and
all appurtenances thereto wherever located. Tenant shall also keep and maintain
in good order, condition and repair (including any such replacement and
restoration as is required for that purpose) any special equipment, fixtures or
facilities which special facilities shall include but not be limited to
greasetraps, located outside the Premises. Tenant shall store all trash and
garbage in metal or other Health Department approved containers so as not to be
visible or create a nuisance to guests, customers and business invitees in the
Hotel, and so as not to create or permit any health or fire hazard, and arrange
for the prompt and regular removal thereof.
8.8 COMPLIANCE WITH LAW. Tenant shall at all times during the Term of
this Lease comply with and shall cause the Premises to be in compliance with all
governmental rules, regulations, ordinances, statutes and laws, and the orders
and regulations of the National Board of Fire Underwriters, the Insurance
Service Office, or any other body now or hereafter exercising similar functions
(collectively, "REGULATIONS"), now or hereafter in effect pertaining to those
portions of the Premises which Tenant is required to maintain under this Lease
or Tenant's use thereof. Tenant shall not, without the prior written consent of
Landlord and all insurance companies which have issued any insurance of any
kind whatsoever with respect to the Hotel or the Premises, sell, or suffer to be
kept, used or sold in, upon or about the Premises any gasoline, distillate or
other petroleum products or any other substance or material of an explosive,
inflammable or radiological nature. Landlord shall comply with all Regulations
pertaining to those portions of the Hotel which Landlord is required to maintain
under this Lease.
8.9 RULES AND REGULATIONS. Tenant hereby covenants and agrees that it,
its agents, employees, servants, contractors, subtenants and licensees shall
abide by any reasonable rules and regulations as Landlord may, from time to
time, reasonably adopt for all similarly situated retail tenants in the Hotel
relating to the safety, care and cleanliness of the Premises, or the Hotel or
for the preservation of good order thereon or to assure the operation of a
first-class resort hotel facility. In the event of any conflict between this
Lease and such rules and regulations, this Lease shall prevail.
8.10 BUSINESS PRACTICES AND MINIMUM HOURS OF OPERATION. Tenant shall
operate all of the Premises during the entire Lease Term in accordance with
sound business practices, due diligence and efficiency so as to provide the
maximum Gross Sales which may be produced by such manner of operation. Tenant
shall maintain in the Premises Tenant's personal property
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necessary for the conduct of Tenant's business therein, in a businesslike
manner, shall carry at all times in the Premises sufficient quantities of
Products as shall be reasonably designed to produce the maximum return to
Landlord and Tenant, and shall staff the Premises at all times with sufficient
personnel to serve its customers. All Products shall meet the highest standards
of the Hotel. Tenant shall, at a minimum, be open for lunch and dinner, seven
days per week. In the event Tenant shall fail to be open as provided herein
(except for temporary closures, not exceeding five (5) days per Lease Year, for
inventory or refurbishing and except for closures resulting from damage or
destruction to the Premises or the Hotel, from force majeure events described in
Section 29.3, from any remodeling or relocation by Landlord pursuant to Sections
1.2 or 1.3 above, from major refurbishment pursuant to Section 2.6, or from any
other activity of Landlord pursuant to this Lease which prevents Tenant from
being open for business as required herein), Landlord shall have, in addition to
any and all remedies herein provided, the right, at its option, to collect an
amount equal to one-thirtieth (1/30) of the average monthly Percentage Rent for
the same month(s) during the previous three (3) years (or such lesser number of
months during which Tenant was open and operating in compliance with this
Section 8.10) to which Landlord is or was entitled for each and every day, or
any portion thereof, that Tenant is not open for business as herein provided.
Said amount shall be due on demand and shall be deemed to be in lieu of any
Percentage Rent and Base Rent (to the extent included in Percentage Rent) that
might have been earned during such period of Tenant's failure to conduct its
business as herein provided. Tenant may, upon prior written notice to Landlord,
remain open additional hours.
8.11 PRIVATE PARTIES. Tenant shall not materially restrict the use of
Premises to guests or patrons of the Hotel nor conduct any private parties
therein, without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, provided that Landlord is satisfied, in its reasonable
judgement, that the conduct of any such private party will not deprive Hotel
guests of adequate access to Tenant's restaurant.
8.12 PHOTOGRAPHIC SERVICES. Tenant shall permit the photographic
concessionaire with whom Landlord has entered into an agreement to provide
photographic services to patrons of Tenant's restaurant on the Premises,
provided that Landlord exercises reasonable control over such concessionaires so
as to avoid annoyance to or interference with Tenant's customers.
8.13 INTERFERENCE WITH OTHER TENANTS. Tenant shall not do, permit or
suffer anything to be done, or kept upon the Premises which will obstruct or
interfere with the rights of other tenants, Landlord or the patrons and
customers of any of them, or which will annoy any of them or their patrons or
customers by reason of unreasonable noise or otherwise, nor will Tenant commit
or permit any nuisance on the Premises or commit or suffer any immoral or
illegal act to be committed thereon.
8.14 REFUNDS AND SETTLEMENTS BY LANDLORD. In the event a dispute shall
arise between Tenant and any of its customers concerning the acceptability of
Tenant's Products which results in a customer demanding a refund from Landlord,
and in the event that an authorized representative of Tenant is not available to
settle such matter, Landlord may in good faith and in the exercise of a
reasonable business judgment make such refund or rebate to avoid
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embarrassment to the Hotel and to retain the goodwill of its customers. In such
case Tenant will forthwith reimburse Landlord in the amount of such refund or
rebate.
8.15 ADVERTISING AND SIGNAGE. All advertising, signs, placards or other
promotional events proposed to be posted, shown or exhibited by Tenant in or
upon the Premises and all additional outside advertising (including, without
limitation, television, radio and print advertising) which mentions Landlord or
the Hotel, shall be subject to the prior written approval of Landlord, which
approval, except as to items located outside the Premises in the Hotel, shall
not be unreasonably withheld. Without limiting the foregoing, Tenant shall not
advertise at the Premises any other premises owned or operated by Tenant without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld. Tenant acknowledges that the Premises may be designated by a
particular suite number. In such event, Tenant agrees to include and use such
suite number on all of its stationary, correspondence, sales receipts and
advertisements as part of its address. Tenant agrees to forthwith remove or
cease any such advertising, sign, placard or exhibit which in the reasonable
judgment of Landlord or its agents or officers is deemed, for any reason, to be
objectionable or inconsistent with the decor or policies of Landlord in the
operation of the Hotel. Tenant shall also refrain from any advertising which is
so objectionable, in Landlord's reasonable judgment, as to result in
embarrassment to Landlord, loss of goodwill or damage to the reputation of the
Hotel. None of Tenant's signs, placards or advertising shall be exhibited
outside of the Premises or in the lobby or any other part of the Hotel without
Landlord's prior written consent, which consent may be withheld in Landlord's
sole discretion. At no time during the Term of this Lease nor for a period of
six (6) months after its termination shall Tenant place or cause to be placed,
whether on or off the Premises, any window card, sign or other advertising,
including newspaper adds, which recites that Tenant has lost its lease, is going
out of business or is vacating the Premises.
8.16 INTELLECTUAL PROPERTY. Tenant represents and warrants to Landlord
that Tenant owns, or has obtained an appropriate license to use, its tradename
"Il Fornaio", as well as any trade or service xxxx or logo used in Tenant's
business, and that, to the best of Tenant's knowledge, Tenant owns or has
obtained an appropriate license to use all other copyrights, trademarks,
tradenames and other intellectual property rights used in Tenant's business.
8.17 SECURITY. Tenant acknowledges that Landlord's security department
and security officers are not responsible for providing security services in the
Premises and that all such responsibility is the obligation of Tenant. In no
event shall Landlord be liable to Tenant or any third-party for the security
department's failure to respond to a request for aid or assistance by Tenant.
8.18 CONDUCT OF TENANT. Tenant acknowledges that Landlord, its parent,
subsidiaries and affiliates have a reputation for offering high-quality
entertainment and/or services to the public, and that it and its affiliates are
subject to regulation and licensing, and desire to maintain their reputation and
receive positive publicity. Tenant therefore agrees that throughout the Term of
this Lease, it and its officers and management will not conduct themselves in a
manner which is contrary to the best interests of Landlord, nor in any manner
that adversely affects or is detrimental to Landlord or its affiliates, and that
neither Tenant nor any of Tenant's officers or
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management will directly or indirectly make any public statement or comment that
is disparaging, critical, defamatory or otherwise adverse to Landlord's
reputation or licensing. Statements made in depositions, pleadings or hearings
in the course of any litigation or arbitration shall not be subject to the
provisions of this Section 8.18.
8.19 EMISSIONS AND HAZARDOUS MATERIALS. Tenant shall not, without the
prior written consent of Landlord, cause or permit, knowingly or unknowingly,
any Hazardous Material (hereinafter defined), other than cleaning and cooking
materials which are customarily found in a first class restaurant, to be brought
or remain upon, kept, used, discharged, leaked, or emitted in or about, or
treated at the Premises. As used in this Lease, "HAZARDOUS MATERIAL(S)" shall
mean any hazardous, toxic or radioactive substance, material, matter or waste
which is or becomes regulated by any federal, state or local law, ordinance,
order, rule, regulation, code or any other governmental restriction or
requirement, and shall include asbestos, petroleum products and the terms
"Hazardous Substance" and "Hazardous Waste" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act, as amended 42 U.S.C.
Section 9601 el seq. ("CERCLA"), and the Resource Conservation and Liability
Act, as amended 42 U.S.C. Section 9601 et seq. ("RCRA"). To obtain Landlord's
consent, Tenant shall prepare an "Environmental Audit" for Landlord's review.
Such Environmental Audit shall list: (1) the name(s) of each Hazardous Material
and a Material Safety Date Sheet ("MSDS") as required by the Occupational Safety
and Health Act; (2) the volume proposed to be used, stored and/or treated at the
Premises (monthly) (3) the purpose of such Hazardous Material; (4) the proposed
on-premises storage location(s); (5) the name(s) of the proposed off-premises
disposal entity; and (6) an emergency preparedness plan in the event of a
release or spill. Additionally, the Environmental Audit shall include copies of
all required federal, state, and local permits concerning or related to the
proposed use, storage, or treatment of any Hazardous Material(s) at the
Premises. Tenant shall submit a new Environmental Audit whenever it proposes to
use, store, or treat a new Hazardous Material at the Premises or when the volume
of existing Hazardous Materials to be used, stored or treated at the Premises
expands by ten percent (10%) during any thirty (30) day period. If Landlord in
its reasonable judgment finds the Environmental Audit acceptable, then Landlord
shall deliver to Tenant Landlord's written consent. Notwithstanding such
consent, Landlord may revoke its consent upon : (1) Tenant's failure to remain
in full compliance with applicable environmental permits and/or any other
requirements under federal, state or local law, ordinance, order, rule,
regulation, code or any other governmental restriction or requirement (including
but not limited to CERCLA and RCRA related to environmental safety, human
health, or employee safety; (2) the Tenant's business operations pose or
potentially pose a human health risk to other Tenants; or (3) the Tenant expands
its use, storage, or treatment of any Hazardous Material(s) in a manner
inconsistent with the safe operation of a restaurant and hotel. Should Landlord
consent in writing to Tenant bringing, using, storing or treating any Hazardous
Material(s) in or upon the Premises, Tenant shall strictly obey and adhere to
any and all federal, state or local laws, ordinances, orders, rules,
regulations, codes or any other governmental restrictions or requirements
(including but not limited to CERCLA and RCRA which in any way regulate, govern
or impact Tenant's possession, use, storage, treatment or disposal of said
Hazardous Material(s). In addition, Tenant represents and warrants to Landlord
that (1) Tenant shall apply for and remain in compliance with any and all
federal, state or local permits in regard to Hazardous Materials; (2) Tenant
shall report to any and all applicable governmental authorities any release of
reportable quantities
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of any Hazardous Material(s) as required by any and all federal, state or local
laws, ordinances, orders, rules, regulations, codes or any other governmental
restrictions or requirements; (3) Tenant, within five (5) days of receipt,
shall send to Landlord a copy of any notice, order, inspection report, or other
document issued by any governmental authority relevant to the Tenant's
compliance status with environmental or health and safety laws; and, (4) Tenant
shall remove from the Premises all Hazardous Materials at the termination of
this Lease, except for those if any, brought onto the Premises by or at the
direction of Landlord or which Tenant proves were brought onto the Premises by
an unrelated third party without Tenant's consent or acquiescence.
In addition to, and in no way limiting Tenant's duties and obligations
as set forth in Article 16 of this Lease, should Tenant breach any of its duties
and obligations as set forth in this Section 8.20, or if the presence of any
Hazardous Material(s) brought onto or occurring on the Premises after the
Delivery Date (other than Hazardous Materials which Tenant proves were brought
onto the Premises by an unrelated third party without Tenant's consent or
acquiescence) results in contamination of the Premises, the Hotel, any land
other than the Hotel, the atmosphere or any water or waterway (including
groundwater), or if contamination of the Premises or of the Hotel by any
Hazardous Material(s) otherwise occurs for which Tenant is otherwise legally
liable to Landlord for damages resulting therefrom, Tenant shall indemnify, save
harmless, and at Landlord's option and with attorneys approved in writing by
Landlord, defend Landlord, and their contractors, agents, employees, partners,
officers, directors and mortgagees, if any, from any and all claims, demands,
damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions,
causes of action, and losses of any and every kind and nature (including,
without limitation, diminution in value of the Premises or the Hotel, damages
for the loss or restriction on use of the rentable or usable space or of any
amenity of the Premises or the Hotel, damages arising from any adverse impact on
marketing space in the Hotel, and sums paid in settlement of claims and for
attorney's fees, consultant fees and expert fees, which may arise during or
after the Lease Term or any extension thereof as a result of such
contamination). This includes, without limitation, costs and expenses, incurred
in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of the presence of
Hazardous Material(s) on or about the Premises or the Hotel, or because of the
presence of Hazardous Material(s) anywhere else which came or otherwise emanated
from Tenant or the Premises. Without limiting the foregoing, if the presence of
any Hazardous Material(s) on or about the Premises or the Hotel caused or
permitted by Tenant results in any contamination of the Premises or the Hotel,
Tenant shall, at its sole expense, promptly take all actions and expense
necessary to return the Premises and/or the Hotel to the condition existing
prior to the introduction of any such Hazardous Material(s) to the Premises or
the Hotel; provided, however, that Landlord's approval of such actions shall
first be obtained in writing.
Nothing contained herein shall be deemed to limit Landlord's obligations
under law for the removal of Hazardous Materials which exist in the Premises
prior to the delivery thereof to Tenant.
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8.20 EXCLUSIVE USE. During the Term of this Lease, no portion of the
Hotel (excluding the Premises) shall be used for any restaurant (or other
business) that uses a woodburning pizza oven.
ARTICLE 9
ALTERATIONS AND IMPROVEMENTS
Tenant may make no alteration, repairs, additions or improvements in, to
or about the Premises (collectively, "TENANT ALTERATIONS"), without the prior
written consent of Landlord, and Landlord may impose as a condition to such
consent such requirements as Landlord, in its reasonable discretion, may deem
necessary or desirable, including without limitation, (a) the right to approve
the plans and specifications for any work, (b) the right to require insurance
satisfactory to Landlord, (c) with respect to Tenant Alterations costing more
than $25,000, the right to require security for the full payment for any work,
(d) requirements as to the manner in which or the time or times at which work
may be performed and (e) the right to approve the contractor or contractors to
perform Tenant Alterations and the right to designate such contractor with
respect to work which could affect the fire sprinkler or life safety systems of
the Hotel. All Tenant Alterations shall be compatible with a first class
hotel/casino complex and completed ill accordance with Landlord's requirements
and all applicable rules, regulations and requirements of governmental
authorities and insurance carriers. Tenant shall pay to Landlord Landlord's
reasonable charges (without profit to Landlord) for any engineering review and
inspection of all Tenant Alterations to assure full compliance with all of
Landlord's requirements. Landlord does not expressly or implicitly covenant or
warrant that any plans or specifications submitted by Tenant are safe or that
the same comply with any applicable laws, ordinances, codes, rules or
regulations. Further, Tenant shall indemnify, protect, defend and hold Landlord
harmless from any loss, cost or expense, including attorneys' fees and costs,
incurred by Landlord as a result of any defects in design, materials or
workmanship resulting from Tenant Alterations. If requested by Landlord, Tenant
shall provide Landlord with copies of all contracts, receipts, paid vouchers,
and any other documentation in connection with the construction of such Tenant
Alterations. Tenant shall promptly pay all costs incurred in connection with all
Tenant Alterations.
ARTICLE 10
LANDLORD'S REPAIR OBLIGATION
Landlord agrees to keep in good structural order, condition and repair
the exterior walls, structural elements, HVAC and utility lines (up to the
Premises), and roof of the Premises except for reasonable wear and tear. It is
an express condition precedent to all obligations of Landlord to repair and
maintain that Tenant shall have notified Landlord in writing of the need for
such repairs or maintenance.
ARTICLE 11
PARKING AND COMMON AREAS
Tenant, its agents, employees, servants, contractors, subtenants,
licensees, customers and business invitees shall have the nonexclusive right, in
common with Landlord and all others to
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whom Landlord has or may hereafter grant rights, to use such common areas of the
Hotel (including, but not limited to, the parking lot, walkways, sidewalks,
hallways, lobby and public restrooms) as may be designated from time to time by
Landlord, subject to such rules and regulations as Landlord may from time to
time impose. Landlord shall maintain the common areas of the Hotel in the
vicinity of the Premises in good condition, clean and neat in appearance. Tenant
agrees that it, its agents, employees, servants, contractors, subtenants and
licensees shall abide by such rules and regulations and that Landlord shall have
the exclusive management and control of all common areas. Landlord may at any
time close any common area or other portions of the Hotel to make repairs or
changes, to prevent the acquisition of public rights in such areas, or to
discourage noncustomer parking. Landlord may do such other acts in and to the
common areas and the other portions of the Hotel as in its judgment may be
desirable. All parking areas and other common areas which Tenant may be
permitted to use are to be used under a revocable license, and if any such
license is revoked, or if the amount of such area is diminished, Landlord shall
not be subject to any liability, nor shall Tenant be entitled to any
compensation or diminution or abatement of rent, nor shall such revocation or
diminution of such areas be deemed constructive or actual eviction. Tenant
shall direct its employees to park only in those areas (which may include
off-site parking areas) designated by Landlord from time to time for such
purposes.
ARTICLE 12
TAXES
12.1 PERSONAL PROPERTY TAXES. Tenant shall be liable for and shall pay
before delinquency (and, upon demand by Landlord, Tenant shall furnish Landlord
with satisfactory evidence of the payment thereof) all taxes, fees and
assessments of whatsoever kind or nature, and penalties and interest thereon, if
any, levied against Tenant's property or any other personal property of
whatsoever kind and to whomsoever belonging situate or installed in or upon the
Premises, whether or not affixed to the realty. If at any time during the Term
of this Lease any such taxes on personal property are assessed as part of the
tax on the real property of which the Premises is a part, then in such event
Tenant shall pay to Landlord the amount of such additional taxes as may be
levied against the real property by reason thereof, as determined by Landlord.
12.2 OTHER TAXES. Tenant shall pay when due all taxes, assessments or
fees for which Tenant is liable and which arise directly or indirectly from
Tenant's operations at the Premises. Within ten (10) days of written demand from
Landlord, Tenant shall furnish Landlord evidence satisfactory to Landlord of the
timely payment of any such tax, assessment or fee.
12.3 STATEMENTS RECEIVED BY LANDLORD. Whenever Landlord shall receive
any statement or xxxx for any tax, payable in whole or in part by Tenant as
additional rent, or shall otherwise be required to make any payment on account
thereof, Tenant shall pay the amount due hereunder within ten (10) days after
demand therefor accompanied by delivery to Tenant of a copy of such tax
statement, if any.
12.4 CASINO ENTERTAINMENT TAX. Tenant agrees that it will collect any
applicable Casino Entertainment Tax ("CET") associated with the sale of food,
beverage or merchandise
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from the Premises and will pay the same to the taxing authority on a timely
basis, or if not permitted to pay the same directly, shall remit the CET due to
Landlord no later than the 10th day of the month following the month in which
the taxable sales occurred. If Tenant is required to and does remit the CET to
Landlord in a timely manner, Landlord shall indemnify and hold Tenant harmless
from any interest, penalties or expenses which may be incurred by Tenant because
Landlord does not pay such CET to the taxing authority in a timely manner.
Tenant shall make all documents containing information relative to the
computation of the CET available for inspection upon notice by representatives
of Landlord and the Gaming Authorities. This obligation shall continue beyond
the Term of this Lease. Tenant shall be liable for any and all CET, interest and
penalties found to be payable in connection with the sale of food, beverage or
merchandise from the Premises as a result of understated taxable revenues,
insufficiency, of records or, if Tenant is permitted to pay the CET directly to
the taxing authority, untimely payment of the CET. If Tenant is not permitted to
pay the CET directly to tile taxing authority, then, if Tenant has timely
remitted the payment to Landlord as required in this Section 12.5. Tenant shall
not be liable for the untimely payment of the CET to the taxing authority.
ARTICLE 13
SERVICES TO THE PREMISES
13.1 UTILITIES. Landlord shall provide customary utility lines stubbed
to the Premises, including supply and return lines for air conditioning, in the
manner and to the extent set forth in the Work Letter. Except as otherwise
provided in the Work Letter, the distribution of utility lines within the
Premises shall be the responsibility of Tenant, at Tenant's cost. Tenant shall
pay all sewer "hook-up fees" and annual sewer charges and other similar charges
which may be levied by utility as a fee for connecting the Premises to the
utility supply. Tenant shall pay for all separately metered gas, power and
electric current, sewer and all other utilities used by Tenant in the Premises;
provided that, so long as Tenant's water usage does not exceed the amount which
is reasonably expected for an average retail tenant, as reasonably determined by
Landlord, Tenant shall not be charged for its water usage. Landlord shall have
the right, at Landlord's expense, to install separate utility meters to measure
utility usage in the Premises. Tenant acknowledges that, because of the nature
of the Premises, Tenant might not have access to the controls for heating, air
conditioning or lighting at the Premises and shall not attempt to make any
changes to such controls located outside the Premises. Landlord, at Landlord's
cost, shall provide Tenant with one telephone line and a house phone. Tenant
shall be responsible for local and long distance service. Landlord, at Tenant's
cost, shall provide garbage service for the Premises. Landlord may, from time to
time, prescribe reasonable rules and regulations and billing procedures for the
implementation of this Section. Tenant shall not install any equipment
which can exceed the capacity of any utility facilities serving the Premises
and if any equipment installed by Tenant requires additional utility
facilities, the same shall be installed at Tenant's expense in compliance with
all code requirements and plans and specifications which must first be approved
in writing by Landlord.
13.2 LIMITATION UPON LANDLORD'S OBLIGATION. Landlord shall not be
obligated to perform any service or to repair or maintain any structure or
facility except as provided in this Lease. Landlord shall not be obligated to
provide any service or maintenance or to make any
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repairs within the Premises pursuant to this Lease when such service,
maintenance or repair is made necessary because of the negligence or misuse of
Tenant, Tenant's agents, employees, servants, contractors, subtenants,
licensees, customers or business invitees. Landlord reserves the right to stop
any service when Landlord deems such stoppage necessary, whether by reason of
accident or emergency, or for repairs or improvements or otherwise. Landlord
shall not be liable under any circumstances for loss or injury however
occurring, through or in connection with or incident to any stoppage of such
services. Landlord shall have no responsibility or liability for failure to
supply any services or maintenance or to make any repairs when prevented from
doing so by any cause beyond Landlord's control. Landlord shall not be obligated
to inspect the Premises and shall not be obligated to make any repairs or
perform any maintenance hereunder unless first notified of the need thereof in
writing by Tenant. In the event that Landlord shall fail to commence such
repairs or maintenance within twenty (20) days after said notice (or five (5)
days after said notice if the failure in the item to be repaired materially
interferes with the conduct of Tenant's business), Tenant's sole right and
remedy for such failure shall be, after further notice to Landlord, to make such
repairs or perform such maintenance and to deduct the cost and expenses thereof
from the rent payable hereunder; provided, however, that the amount of such
deduction shall not exceed the reasonable value of such repairs or maintenance,
and provided, further, if such repairs or maintenance are needed because of act
or omission of Tenant, its agents, servants, employees or licensees, the cost
thereof shall be paid by Tenant. Notwithstanding the foregoing provisions of
this Section 13.2, the parties agree that Base Rent shall be abated during any
period that Tenant is denied access to or the use of the Premises as the result
of Landlord's breach of its obligations under this Lease.
ARTICLE 14
INSURANCE
14.1 LIABILITY INSURANCE. Tenant shall, at all times during the term
hereof, at its sole cost and expense, procure and maintain in full force and
effect a policy or policies of commercial general liability insurance including
coverage for both owned and non-owned automobiles and contractual indemnity
coverage issued by an insurance carrier acceptable to Landlord assuring against
loss, damage or liability for injury or death to persons and loss or damage to
property occurring from any cause whatsoever in connection with the Premises or
Tenant's use thereof. Such liability insurance shall be a single limits policy
in an amount of not less than Ten Million ($10,000,000.00) Dollars. Landlord,
Primadonna Resorts and MGM Grand Hotel, Inc. shall be named as an additional
insured (and at Landlord's option, any other persons, firms or corporations
designated by Landlord shall be additionally named insured) under each such
policy of insurance.
14.2 PROPERTY INSURANCE. Tenant shall, at all times during the term
hereof, at its sole cost and expense, procure and maintain in full force and
effect standard form of fire and casualty with standard "ALL-RISK" coverage
protecting against all risks of physical loss or damage, including, without
limitation, sprinkler leakage coverage and plate glass insurance covering all
plate glass in the Premises, if any, and all of Landlord's and Tenant's property
(including, without limitation, Tenant's furniture, fixtures and equipment) and
its products and merchandise, and the personal property of others in Tenant's
possession in, upon or about the Premises. Such
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insurance shall be in an amount equal to the current replacement value of the
property required to be insured. Tenant and Landlord, as their interests may
appear, shall be the named loss payee (and at Landlord's option, any other
persons, firms or corporations designated by Landlord shall be named as
additional loss payee) under each such policy of insurance. Tenant shall also
carry business interruption insurance.
14.3 POLICY REQUIREMENTS. All policies required hereunder shall be with
companies licensed to do business in Nevada and with a "General Policyholder's
Rating" of A- or better and a "financial rating" of VII or better in the most
recent edition of Best's Insurance Guide (or similar rating service if such
guide is no longer published). A certificate issued by the insurance carrier for
each policy of insurance required to be maintained by Tenant hereunder, and,
upon request of Landlord, a copy of each such policy, shall be delivered to
Landlord and all other additional insureds no later than ten (10) days after
execution of this Lease and thereafter, as to policy renewals, within thirty
(30) days prior to the expiration of the terms of each such policy. Each of said
certificates of insurance and each such policy of insurance required to be
maintained by Tenant hereunder shall be from an insurer and in form and
substance satisfactory to Landlord and shall expressly evidence insurance
coverage as required by this Lease and shall contain an endorsement or provision
requiring not less than thirty (30) days written notice to Landlord and all
other additional insured prior to the cancellation, diminution in the perils
insured against, or reduction of the amount of coverage of the particular policy
in question. In addition to the foregoing certificates, Tenant shall at all
times during the Term hereof furnish Landlord with a current certificate of
worker's compensation coverage evidencing coverage at Nevada statutory limits.
Each policy of insurance provided for in Section 14.2, shall contain an express
waiver of any and all rights of subrogation thereunder whatsoever against
Landlord, its officers, agents and employees. All policies to be maintained in
this Article 14, shall be written as primary policies and not contributing with
or in excess of the coverage, if any, which Landlord may carry. Any other
provision contained in this Article 14 or elsewhere in this Lease
notwithstanding, the amounts of all insurance required hereunder to be paid by
Tenant shall be not less than an amount sufficient to prevent Landlord from
becoming a coinsurer. The limits of the public liability insurance required to
be maintained by Tenant under this Lease shall in no way limit or diminish
Tenant's liability under Article 16 hereof and such limits shall be subject to
increase at any time and from time to time during the Term if Landlord, in the
exercise of reasonable discretion, deems such an increase to be consistent with
the insurance required of other similarly situated tenants in Las Vegas, Nevada
and necessary for its adequate protection; provided, however, Landlord may not
exercise its right under this sentence more frequently than one time in any
calendar year.
14.4 HAZARDOUS ACTIVITIES. Tenant shall not use or occupy, or permit
the Premises to be used or occupied, in a manner not otherwise permitted
hereunder which will increase the rates of fire or any other insurance for the
Premises or the Hotel. Tenant shall also not use or occupy, or permit the
Premises to be used or occupied in a manner not otherwise permitted hereunder
which will make void or voidable any insurance then in force with respect
thereto or the Hotel, or which will make it impossible to obtain fire or other
insurance with respect thereto or the Hotel. If by reason of the failure of
Tenant to comply with the provisions of this Section, the fire or any other
insurance rates for the Premises or the Hotel be higher than they otherwise
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would be, Tenant shall reimburse Landlord, as additional rent, on the first day
of the calendar month next succeeding notice by Landlord to Tenant of said
increase, for that part or all insurance premiums thereafter paid by Landlord
which shall have been charged because of such failure of Tenant.
14.5 WAIVER OF SUBROGATION. Each Party hereby waives subrogation and
any and all rights of recovery from the other, its officers, agents and
employees for any loss or damage, including consequential loss or damage, caused
by any peril or perils (including negligent acts) enumerated in their insurance
actually carried or required to be carried pursuant to this Lease and to the
extent of such insurance coverage or required coverage, and waive any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof to the extent of such insurance coverage or required coverage.
ARTICLE 15
LIENS
15.1 INDEMNITY FOR LIENS. Tenant, at all times, shall indemnify and
hold harmless Landlord, the Hotel, the Premises, the leasehold estate created by
this Lease, any trade fixtures, equipment or personal property within the
Premises, and each of them, from any claim, lien, tax lien or levy, attachment,
garnishment, encumbrance, litigation or judgment, arising directly or indirectly
from any obligation, action or inaction of Tenant whatsoever.
15.2 PREVENTION OF LIENS. Tenant, at all times, shall keep the
Landlord, the Hotel, the Premises, the leasehold estate created by this Lease,
any trade fixtures, equipment or personal property within the Premises, free and
clear from any claim, liens, tax lien or levy, attachment, garnishment or
encumbrance arising directly or indirectly from any obligation, action or
inaction of Tenant whatsoever. However, this Section 15.2 shall not apply to the
granting of a security interest in Tenant's personal property in connection with
a financing by Tenant.
15.3 RELEASE OF LIENS. If a mechanics' lien, tax lien or other lien is
filed against the Hotel arising directly or indirectly from any obligation,
action or inaction of Tenant whatsoever, Tenant shall discharge or cause to be
discharged (by bond or otherwise) such lien within ten (10) days after Tenant
receives notice of the filing thereof and shall not allow any such lien to be
foreclosed upon. If a mechanic's lien or other lien is filed against the Hotel,
and Tenant falls to timely discharge such lien, Landlord may, without waiving
its rights and remedies based on such breach of Tenant and without releasing
Tenant from any of its obligations, cause such liens to be released by any means
it shall deem proper, including payment in satisfaction of the claim giving rise
to such lien. Tenant shall pay to Landlord within thirty (30) days following
notice by Landlord, any sum paid by Landlord to remove such liens, together with
interest at Landlord's cost of money from the date of such payment by Landlord.
Tenant's obligation under the Section shall survive the expiration of the Term
of this Lease or the earlier termination of this Lease.
15.4 NOTICE OF NONRESPONSIBILITY. Tenant shall give Landlord at least
ten (10) business days prior written notice before the commencement of any work,
construction, alteration or repair
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on the Premises to afford Landlord the opportunity to record appropriate notices
of nonresponsibility.
ARTICLE 16
INDEMNIFICATION
Tenant hereby covenants and agrees to indemnify, save, and hold
Landlord, the Premises and the leasehold estate created by this Lease free,
clear and harmless from any and all liability, loss, costs, expenses, including
attorneys' fees, judgments, claims, liens, and demands of any kind whatsoever
(collectively, "CLAIMS") in connection with, arising out of, or by reason of any
breach of this Lease by Tenant or any act, omission, or negligence of Tenant,
its agents, employees, servants, contractors, subtenants or licensees while in,
upon, about, or in any way connected with the Premises, or arising from any
accident, injury, or damage, howsoever and by whomsoever caused, to any person
or property whatsoever occurring, in, upon, about, or in any way connected with
Tenant's activities or use of the Premises or any portion thereof, including,
without limitation, any infringement by Tenant or by any person engaged by
Tenant or acting on Tenant's behalf of any copyright, patent, trademark or
similar intellectual property rights of any other person or entity, except to
the extent that any of the foregoing is caused by the negligence or wilful
misconduct of Landlord or its agents, employees, servants, contractors or
licensees. Landlord shall not be liable to Tenant or to any other person
whatsoever for any damage occasioned by fire, smoke, falling plaster,
electricity, plumbing, gas, water, steam, sprinkler, or other pipe and sewage
system or by the bursting, running, or leaking of any tank, washstand, closet or
waste of other pipes, nor for any damages occasioned by water being upon or
coming through the roof, skylight, vent, trapdoor, or otherwise or for any
damage arising from any acts or neglect of co-lessees or other occupants of the
Hotel or of adjacent property, or of Landlord, or of the public, nor shall
Landlord be liable in damages or otherwise for any failure to furnish, or
interruption of, service of any utility.
Similarly, Landlord hereby covenants and agrees to indemnify, save and
hold Tenant harmless from and against all Claims in connection with, arising out
of, or by reason of any breach of this Lease by Landlord or any negligence or
wrongful act of Landlord, its agents, employees and contractors, including,
without limitation, any negligence or wrongful act of Landlord in connection
with the construction of Landlord's Work.
ARTICLE 17
SUBORDINATION
17.1 SUBORDINATION OF TENANT'S INTEREST. Tenant agrees that this Lease
and Tenant's interest in the Premises is secondary, junior and inferior to the
lien of any mortgage, deed of trust or other encumbrance, together with any
renewals, extensions or replacements thereof, now or hereafter placed, charged
or enforced against the Premises, or any portion thereof, or any property of
which the Premises is a part (hereinafter, a "MORTGAGE"). Notwithstanding the
foregoing, upon request by Landlord, Tenant shall execute and deliver at any
time, and from time to time, such documents as may be required to effectuate
such subordination.
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17.2 PRIORITY. In the event that the mortgagee or beneficiary of any
Mortgage elects to have this Lease a prior lien to its mortgage or deed of
trust, then and in such event, upon such mortgagee's or beneficiary's giving
written notice to Tenant to that effect, this Lease shall be deemed prior in
lien to such mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of recordation of such mortgage or deed of trust.
17.3 ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of the Premises in the event of exercise of the power of
sale under any Mortgage covering the Premises, or in the event of a sale of
Landlord's interest in the Premises attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Landlord under this Lease.
17.4 NONDISTURBANCE. Landlord, Tenant and Landlord's current lender
shall enter into a nondisturbance and attornment agreement on the lender's form
providing that, so long as no Tenant Event of Default occurs under this Lease,
such lender will recognize this Lease and Tenant's rights hereunder. Tenant's
obligation to subordinate its leasehold interest to any future Mortgage shall be
subject to Tenant's receipt of a commercially reasonable nondisturbance and
attornment agreement from the holder of such Mortgage.
ARTICLE 18
ASSIGNMENT AND SUBLETTING
18.1 ASSIGNMENT OR SUBLEASE WITHOUT CONSENT PROHIBITED. The economic
provisions and rental rates set forth in this Lease were negotiated by Landlord
in consideration of, and would not have been granted by Landlord but for, the
specific nature of the leasehold interest granted to Tenant hereunder, as such
interest is limited and defined by various provisions throughout this Lease,
including, but not limited to, the provisions of this Article 18 which define
and limit the transferability of such leasehold interest. The leasehold estate
granted to Tenant hereunder is not a transferable interest in property, and
Landlord hereby reserves the right to receive any increased rental value of the
Premises during the Term hereof as the same may be realized by any transfer of
said estate, except to the extent Tenant is specifically granted the right to
transfer all or part of its leasehold and to retain all or part of the increased
rental value thereof pursuant to the provisions of this Article 18. Tenant shall
not directly or indirectly, voluntarily or by operation of law sell, assign,
encumber, pledge or otherwise transfer or hypothecate all or any part of the
Premises or Tenant's leasehold estate hereunder (collectively "ASSIGNMENT"), or
permit the Premises to be occupied or used by anyone other than Tenant or sublet
the Premises (collectively "SUBLEASE") or any portion thereof without Landlord's
prior written consent in each instance. Unless Tenant is a publicly traded
company or owns and operates restaurants other than the restaurant which is to
be operated in the Premises, any transfer of ownership interests in Tenant in
the aggregate in excess of twenty-five percent (25%) shall be deemed an
Assignment hereunder.
18.2 NOTICE OF PROPOSED SUBLEASE OR ASSIGNMENT. If Tenant desires at
any time to enter into an Assignment of this Lease or a Sublease of the Premises
or any portion thereof, it shall first give written notice to Landlord of its
desire to do so, which notice shall contain (a) the
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name of the proposed assignee, subtenant or occupant, (b) the nature of the
proposed assignee's, subtenant's or occupant's business to be carried on in the
Premises, (c) the terms and provisions of the proposed Assignment or Sublease,
as reasonably requested by Landlord and (d) such financial information as
Landlord may reasonably request concerning the proposed assignee, subtenant
or occupant.
18.3 STANDARDS FOR CONSENT. If Landlord shall not unreasonably withhold
its consent to any Assignment, Sublease or Subleases to a third party or parties
("TRANSFEREES"); provided, however, that Landlord's refusal to consent to any
Assignment or Sublease shall be deemed reasonable if:
(i) The transferee, in Landlord's reasonable opinion, is not
of reputable and good character;
(ii) The proposed transferee, in Landlord's reasonable
judgment, is not an experienced, proven and successful operator of businesses
comparable to the type contemplated by this Lease;
(iii) The purposes for which the transferee intends to use the
Premises are, in Landlord's reasonable judgment, incompatible with the Hotel or
the business operations of other Tenants in the Hotel;
(iv) In the reasonable judgment of the Landlord the purpose
for which the subtenant or assignee intends to use the Premises is not in
keeping with the standards of Landlord for the Hotel as a first class resort
hotel facility, or is in violation of the terms of any other lease in the
Hotel, it being understood that the purpose for which any subtenant or assignee
intends to use the Premises may not be in violation of this Lease;
(v) The proposed transferee has been involved in bona fide
negotiations with Landlord for space in the Hotel within the preceding twelve
(12) months and Landlord has available other comparable space in the Hotel to
offer to the prospective subtenant or assignee;
(vi) The proposed subtenant or assignee is either an occupant
of the Hotel (but only if Landlord can offer comparable space in the Hotel to
such proposed assignee or sublessee) or a government (or subdivision or agency
thereof);
(vii) The proposed assignee or sublessee is, in the reasonable
judgment of Landlord, insolvent or financially unable to meet the projected
costs of the obligations to be assumed for the unexpired Term of this Lease; or
the proposed assignee or sublessee has a net worth which is, in the reasonable
opinion of Landlord, insufficient to enable it to operate a successful first
class business of the type contemplated herein and to meet the projected costs
of obligations to be assumed for the unexpired Term of this Lease;
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(viii) The transferee operates another similar business at
another Las Vegas Strip hotel and/or casino property under the same tradename
which such transferee proposes to use for its business in the Premises; or
(ix) Tenant is in default under this Lease (provided that
Tenant shall have the right to resubmit any proposal for Assignment or Sublease
after Tenant cures such default).
If Landlord consents to any Sublease or Assignment under this Section
18.4, Tenant may thereafter within ninety (90) days after Landlord's consent,
but not later than the expiration of said ninety (90) days, enter into such
Sublease of the Premises or portion thereof, or Assignment upon the same
material terms and conditions set forth in the notice furnished by Tenant to
Landlord pursuant to Section 18.2 above.
18.4 NO RELEASE OF TENANT. Subject to Section 18.6 below, no consent by
Landlord to any Assignment or Sublease by Tenant shall relieve Tenant of any
obligation to be performed by Tenant under this Lease, whether arising before or
after the Assignment or Sublease. The consent by Landlord to any Assignment or
Sublease shall not relieve Tenant from the obligation to obtain Landlord's
express written consent to any other Assignment or Sublease. Any Assignment or
Sublease which is not in compliance with this Article 18 shall be void and, at
the option of Landlord, shall constitute a material default by Tenant under this
Lease. The acceptance of rent by Landlord from a proposed assignee or sublessee
shall not constitute the consent to such Assignment or Sublease by Landlord.
18.5 ASSUMPTION OF TENANT'S OBLIGATIONS. Each assignee, sublessee,
mortgagee, pledgee, or other transferee, other than Landlord, shall assume, as
provided in this Section 18.6, all obligations of Tenant under this Lease and
shall be and remain liable jointly and severally with Tenant for the payment of
the rent, and for the performance of all the terms, covenants, conditions and
agreements herein contained on Tenant's part to be performed for the Term of
this Lease; provided, however, that the assignee, sublessee, mortgagees, pledgee
or other transferee shall be liable to Landlord for rent only in the amount set
forth in the Assignment or Sublease. No Assignment shall be binding on Landlord
unless the assignee or Tenant shall deliver to Landlord a counterpart of the
Assignment and an instrument in recordable form which contains a covenant of
assumption by the assignee reasonably satisfactory in substance and form to
Landlord, consistent with the requirements of this Section 18.6, but the failure
or refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability as set forth above.
18.6 SALE OF TENANT'S BUSINESS. In the event that Tenant sells its
business in the Premises to a transferee which is approved by Landlord pursuant
to the foregoing provisions of this Article 18, then, notwithstanding the
provisions of Section 18.1 above, Landlord shall be entitled only to one-half of
any "Profits," as defined below, realized from such sale, and, upon payment of
such Profits to Landlord and the assumption of Tenant's obligations by such
permitted transferee pursuant to Section 18.5 above, Tenant shall be relieved of
all further obligations accruing under this Lease. For purposes of this Section
18.6, "PROFITS" shall mean
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all amounts realized by Tenant from the sale of its business in the Premises and
the assignment of this Lease, less the unamortized cost (computed using the
straight-line method over the initial Lease Term) of Tenant's Work (and capital
improvements or replacements thereto), furniture, fixtures and equipment which
are to be sold to Tenant's transferee.
ARTICLE 19
INSOLVENCY AND DEATH
It is understood and agreed that neither this Lease nor any interest
therein or hereunder, nor any estate hereby created in favor of Tenant, shall
pass by operation of law under any state or federal insolvency, bankruptcy, or
inheritance act, or any similar law now or hereafter in effect, to any trustee,
receiver, assignee for the benefit of creditors, heirs, legatees, devisees or
any other person whomsoever without the express written consent of Landlord
first had and obtained therefor as provided in Article 18 above.
ARTICLE 20
CONDEMNATION
20.1 AWARDS. Should the whole or any part of the Premises be condemned
or taken by a competent authority for any public or quasi-public purpose, all
awards payable on account of such condemnation and taking shall be payable to
Landlord, and Tenant hereby waives any and all interest therein, provided that
Tenant may make a separate claim for the value of Tenant's improvements,
fixtures and equipment.
20.2 TAKING OF THE PREMISES. If the whole of the Premises shall be so
condemned and taken, then this Lease shall terminate upon such taking. If by
reason of any condemnation or taking the remainder of the Premises will not be
reasonably adequate for the operation of Tenant's business after Landlord
completes such repairs or alterations as Landlord elects to make (subject to the
limitations which are set forth in Section 1.3), either Landlord or Tenant shall
have the option to terminate this Lease by notifying the other party hereto of
such election in writing within forty-five (45) days after such taking. If a
part only of the Premises is taken and the remaining part thereof is suitable
for the purposes for which Tenant has leased said Premises, this Lease shall
continue in full force and effect. In the event a partial taking does not
terminate this Lease, Tenant shall make repairs and restorations to the
remaining premises of the nature of Tenant's Work required by Exhibit B and if
Tenant has closed Tenant shall promptly reopen for business.
20.3 TAKING OF THE HOTEL. If any material part of the Hotel other than
the Premises shall be so taken or appropriated, Landlord shall have the right,
at its option, to terminate this Lease by notifying Tenant within six (6) months
of such taking.
20.4 DEED-IN-LIEU. For the purposes hereof, a deed in lieu of
condemnation shall be deemed a taking.
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ARTICLE 21
DESTRUCTION OF PREMISES
21.1 LANDLORD'S RIGHT OF TERMINATION. In the case of the total
destruction of the Premises, or any portion thereof substantially interfering
with Tenant's use of the Premises. whether by fire or other casualty, not caused
by the fault or negligence of Tenant, its agents. employees, servants,
contractors, subtenants, licensees, customers or business invitees, this Lease
shall terminate except as herein provided. If Landlord notifies Tenant in
writing within one hundred twenty (120) days of such destruction of Landlord's
election to repair said damage, and if Landlord proceeds to and does repair such
damage with reasonable dispatch. but in no event longer than twelve (12) months
from the date of the casualty, this Lease shall not terminate. but shall
continue in full force and effect. In determining what constitutes reasonable
dispatch. consideration shall be given to delays caused by Force Majeure events.
If this Lease is terminated pursuant to this Article 21 and if Tenant is not in
default hereunder. all RIGHTS AND obligations hereunder shall cease and
terminate as of the date of termination.
21.2 DAMAGE CAUSED BY TENANT. Notwithstanding Section 21.1, in the
event the Premises, or any portion thereof, shall be damaged by fire or other
casualty due to the fault or negligence of Tenant, its agents, employees,
servants, contractors, subtenants, licensees, then, without prejudice to any
other rights and remedies of Landlord, this Lease shall not terminate, the
damage shall be repaired by Tenant, and Percentage Rent payable by Tenant shall
be determined by the method set forth in Section 8.11 of this Lease.
21.3 DAMAGE TO HOTEL. In the event of any damage not limited to, or not
including, the Premises, such that the building of which the Premises is a part
is damaged to the extent of twenty-five percent (25%) or more of the cost of
replacement, or the buildings and improvements (taken in the aggregate) of the
Hotel owned by Landlord shall be damaged to the extent of more than twenty-five
percent (25%) of the aggregate cost of replacement, Landlord may elect or
terminate this Lease upon giving notice of such election in writing to Tenant
within one hundred twenty (120) days after the occurrence of the event causing
the damage. If Landlord elects to terminate this Lease pursuant to this Section
21.3 upon the occurrence of damage to the Hotel which does not affect the
Premises, Landlord shall reimburse Tenant for its Unamortized Costs.
21.4 REPAIR OBLIGATIONS. The provisions of this Article 21 with respect
to repair by Landlord shall be limited to such repair as is necessary to place
the Premises in the condition specified for Tenant's Work and when placed in
such condition the Premises shall be deemed restored and rendered tenantable,
and, upon completion of Tenant's Work, Tenant shall replace its stock in trade,
and if Tenant has closed, Tenant shall promptly reopen for business. In no
event shall Landlord be obligated to incur costs to restore the Premises which
exceed the amount of insurance proceeds which are paid to Landlord with respect
to the damage to the Premises.
21.5 INSURANCE PROCEEDS. All insurance proceeds payable under any fire
and extended coverage risk insurance covering the Hotel and/or the Premises
shall be payable solely to Landlord, and Tenant shall have no interest therein.
Tenant shall in no case be entitled to compensation for damages on account of
any annoyance or inconvenience in making repairs
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under any provision of this Lease. Except to the extent provided for in this
Section 21, neither the rent payable by Tenant nor any of Tenant's other
obligations under any provision of this Lease shall be affected by any damage to
or destruction of the Premises or any portion thereof by any cause whatsoever.
21.6 RENTAL ABATEMENT. In the event any part of the Premises, as a
result of damage by fire or other casualty, is rendered untenantable for the
conduct of Tenant's business, Base Rent shall be reduced and abated in
proportion to the part of the Premises which is so rendered untenantable until
the damaged portion of the Premises have been made tenantable for the conduct of
Tenant's business or until this Lease expires or terminates, whichever occurs
first; provided that there shall be no abatement of Base Rent whatsoever with
respect to any damage caused in whole or in part by the negligence or willful
act of Tenant, its agents, employees, contractors or licensees.
ARTICLE 22
RIGHT OF ACCESS
22.1 RIGHT OF ACCESS. Landlord, and its authorized agents and
representatives shall be entitled to enter the Premises at any reasonable time
with reasonable prior notice (except in the event of an emergency) for the
purpose of observing, posting or keeping posted thereon notices provided for
hereunder, and such other notices as Landlord may deem necessary or appropriate
for protection of Landlord and/or its interest in the Premises; for the purpose
of inspecting the Premises or any portion thereof; and for the purpose of making
repairs to the Premises or any other portion of the Hotel and performing any
work therein or thereon which Landlord may elect or be required to make
hereunder, or which may be necessary to comply with any laws, ordinances, rules,
regulations or requirements of any public authority or any applicable standards
that may, from time to time, be established by the Insurance Services Office or
any similar body, or which Landlord may deem necessary or appropriate to prevent
waste, loss, damage or deterioration to or in connection with the Premises or
any other portion of the Hotel or for the purpose of conducting its legitimate
business purposes therein or for any other lawful purpose. Any entry hereunder
shall be undertaken by Landlord in a manner and at such times as are reasonably
calculated to minimize interference with Tenant's business; provided that
Landlord shall have the right to use any means which Landlord may deem proper to
open all doors in the Premises in an emergency. Entry into the Premises obtained
by Landlord by any such means shall not be deemed to be forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of Tenant from the
Premises or any portion thereof. Nothing contained herein shall impose or be
deemed to impose any duty on the part of Landlord to do any work or repair.
maintenance, reconstruction or restoration, which under any provision of this
Lease is required to be done by Tenant; and the performance thereof by Landlord
shall not constitute a waiver of Tenant's default in failing to do the same.
22.2 INCONVENIENCE TO TENANT. Landlord may, during the progress of any
work on tile Premises, keep and store upon the Premises all necessary materials,
tools and equipment. Subject to the provisions of Article 13, Landlord shall not
in any event be liable for inconvenience, annoyance, disturbance, loss of
business or quiet enjoyment, or other damage or loss to Tenant
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by reason of making any such repairs or performing any such work upon the
Premises, or on account of bringing materials, supplies and equipment into, upon
or through the Premises during the course thereof, and the obligations of Tenant
under this Lease shall not thereby be affected in any manner whatsoever.
Landlord shall, however, in connection with the performance of such work, cause
as little inconvenience, disturbance or other damage or loss to Tenant as may be
reasonably possible under the circumstances.
22.3 RIGHT TO SHOW THE PREMISES. Subject to Section 22.1, Landlord,
and/or its authorized agents and representatives, shall be entitled to enter the
Premises at all reasonable times for the purpose of exhibiting the same to
prospective purchasers of the Hotel and, during the final year of the Term of
this Lease, Landlord shall be entitled to exhibit the Premises for lease.
Landlord shall not place "for lease" signs in the Premises without Tenant's
prior consent.
ARTICLE 23
LANDLORD'S RIGHT OF PERFORMANCE
Whenever under any provision of this Lease, Tenant shall be obligated
to make any payment or expenditure, or to do any act or thing, or to incur any
liability whatsoever, and Tenant fails, refuses or neglects to perform as herein
required, Landlord shall, upon not less than ten (10) days prior notice, be
entitled, but shall not be obligated, to make any such payment or to do any such
act or thing, or to incur any such liability, all on behalf of and at the cost
and for the account of Tenant. In such event, the amount thereof with interest
thereon at the Default Rate per annum shall constitute and be collectable as
additional rent on demand.
ARTICLE 24
ESTOPPEL CERTIFICATES
Tenant agrees that within ten (10) days of any demand therefor by
Landlord, Tenant will execute and deliver to Landlord or Landlord's designee a
recordable certificate stating that this Lease is in full force and effect, such
defenses or offsets as are claimed by Tenant, if any, the date to which all
rentals have been paid, and such other information concerning the Lease, the
Premises and Tenant as Landlord or said designee may reasonably request.
ARTICLE 25
TENANT'S DEFAULT
25.1 EVENTS OF DEFAULT. Landlord shall have all the rights and remedies
provided in this Section or elsewhere herein, in the event that any of the
following (sometimes referred to herein as an "EVENT OF DEFAULT") shall occur:
a. Tenant shall default in the payment of any sum of money
required to be paid hereunder and such default continues for five (5) business
days after written notice thereof from Landlord to Tenant; or
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b. Tenant shall default in the performance of any other
provision, covenant or condition of this Lease on the part of Tenant to be kept
and performed and such default continues for twenty (20) days after written
notice thereof from Landlord to Tenant; provided, however, that if the default
complained of in such notice is of such a nature that the same can be rectified
or cured, but cannot with reasonable diligence be done within said twenty (20)
day period, then such default shall be deemed to be rectified or cured if Tenant
shall, within said twenty (20) day period, commence to rectify and cure the same
and shall thereafter complete such rectification and cure with all due
diligence; or
c. Tenant should vacate or abandon the Premises during the
Term of this Lease; or
d. Tenant should fail to obtain the discharge or release of
any lien as required by Article 15 hereof; or
e. There is filed any execution, attachment, levy or seizure
against Tenant or the leasehold estate created by this Lease and the same
continues in effect for a period of ten (10) days; or
f. There is filed any petition in bankruptcy or the Tenant is
adjudicated as a bankrupt or insolvent, or there is appointed a receiver or
trustee to take possession of Tenant or of all or substantially all of the
assets of Tenant, or there is a general assignment by Tenant for the benefit of
creditors, or any action is taken by or against Tenant under any state or
federal insolvency or bankruptcy act, or any similar law now or hereafter in
effect. The provisions of this Clause (f) shall also apply to any guarantor of
this Lease or occupant of the Premises; or
g. There shall occur any other event or condition which is
described in this Lease as an "Event of Default."
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 without any notice or demand whatsoever:
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails so to do,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying the
Premises, or any part thereof, as permitted by applicable law without being
liable to prosecution or for any claim for damages; and Landlord may recover
from Tenant:
(a) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
(b) 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
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exceeds the amount of such rental loss Tenant proves could
have been reasonably avoided; plus
(c) 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
(d) Any other reasonable amount necessary to compensate
Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this
Lease; and
(e) 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; except that Percentage Rent
shall be computed on the basis of the monthly average of all Percentage Rent
received by or payable to Landlord during the period that Tenant was conducting
Tenant's business in the Premises in the manner and to the extent required by
this Lease, or on the basis of the monthly amount thereof payable on the date of
Tenant's default, if greater. As used in paragraphs (a) and (b) above, the
"worth at the time of award" is computed by allowing interest in the per annum
amount equal to the Default Rate. As used in paragraph (c) above, the "worth at
the time of award" is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus one (1%)
percent per annum.
(2) Enter upon the 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 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 a Tenant Event of Default
shall not be deemed or construed to constitute a waiver of such default.
ARTICLE 26
QUIET POSSESSION
Tenant, upon paying the rentals and other payments herein required from
Tenant, and upon Tenant's performance of all of the terms, covenants and
conditions of this Lease on its part to be kept and performed, may quietly have,
hold and enjoy the Premises during the Term of this
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Lease without any disturbance from Landlord or from any other person claiming
through Landlord.
ARTICLE 27
SALE BY LANDLORD
27.1 LANDLORD'S RIGHT TO ASSIGN OR TRANSFER. It is agreed that Landlord
may at any time assign or transfer its interest as Landlord in and to this
Lease, or any part thereof, and may at any time sell or transfer its interest in
the fee of the Premises, or its interest in and to the whole or any portion of
the Premises, without notice or obtaining any approval from Tenant.
27.2 ATTORNMENT. Tenant hereby agrees to attorn to the assignee,
transferee, or purchaser of Landlord under any provision of this Article 27 from
and after the date of notice to Tenant of such assignment, transfer or sale, in
the same manner and with the same force and effect as though this Lease were
made, in the first instance, by and between Tenant and such assignee, transferee
or purchaser.
27.3 RELEASE OF LANDLORD. In the event of any sale or exchange of the
Premise by Landlord, Landlord shall be and is hereby relieved of all liability
under any and all of its covenants and obligations contained in or derived from
this Lease, arising out of any act, occurrence or omission relating to the
Premises occurring after the consummation of such sale or exchange.
ARTICLE 28
DEFAULT BY LANDLORD
It is agreed that in the event Landlord fails or refuses to perform any
of the provisions, covenants or conditions of this Lease on Landlord's part to
be kept or performed, that Tenant, prior to exercising any right or remedy
Tenant may have against Landlord on account of such default, shall give a twenty
(20) day written notice to Landlord of such default, specifying in said notice
the default with which Landlord is charged. Notwithstanding any provision hereof
other than Section 13.2, Tenant agrees that if the default complained of in the
notice provided for by this Section 28 is of such a nature that the same can be
rectified or cured by Landlord, but cannot with reasonable diligence be
rectified or cured within said twenty (20) day period, then such default shall
be deemed to be rectified or cured if Landlord within said twenty (20) day
period shall commence the rectification and curing thereof and shall continue
thereafter with all due diligence to cause such rectification and curing to
proceed, and so does complete the same, with the use of diligence as aforesaid.
ARTICLE 29
MISCELLANEOUS
29.1 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the
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relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or any claim of injury or damage.
29.2 WAIVER. The waiver by Landlord of any default or breach of any of
the terms, covenants or conditions hereof on the part of Tenant to be kept and
performed shall not be a waiver of any preceding or subsequent breach of the
same or any other term, covenant or condition contained herein. The subsequent
acceptance of rent or any other payment hereunder by Tenant to Landlord shall
not be construed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease other than the failure of Tenant to pay the
particular rental or other payment or portion thereof so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rental or other payment. No payment by Tenant or receipt by Landlord of a lesser
amount than therein provided shall be deemed to be other than on account of the
earliest rent due and payable hereunder, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept any such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy provided in this Lease. This Section 29.2 may not be
waived.
29.3 FORCE MAJEURE. Whenever a day is appointed herein on which, or a
period of time is appointed in which, either party hereto is required to do or
complete any act, matter or thing, the time for the doing or completion thereof
shall be extended by a period of time equal to the number of days on or during
which such party is prevented from the doing or completion of such act, matter
or thing because of labor disputes not arising from any activity of Tenant or
Tenant's employees, civil commotion, war, warlike operation, sabotage,
governmental regulations or control, fire or other casualty, inability to obtain
any materials, or to obtain fuel or energy, weather or other acts of God, or
other causes beyond such party's reasonable control (financial inability
excepted); provided, however, that nothing contained herein shall excuse Tenant
from the prompt payment of any rent or charge required of Tenant hereunder.
Tenant agrees that a recognitional or informational picket line shall not be
deemed a force majeure event.
29.4 DELIVERY OF NOTICES. Any and all notices and demands by or from
Landlord to Tenant, or by or from Tenant to Landlord, required or desired to be
given hereunder shall be in writing and shall be validly given or made if served
either personally or if deposited in the United States mail, certified, postage
prepaid, return receipt requested or if delivered by a nationally recognized,
next business day delivery courier service, or served by facsimile. If such
notice or demand be served by certified mail or courier service in the manner
provided, service shall be conclusively deemed made upon delivery, if personally
delivered, three (3) business days after deposit in the mail as provided herein,
if by mail, and one (1) business day after delivery by next day delivery courier
service or facsimile. Service by personal service or facsimile transmission
shall be followed by the mailing of the hard copy of the notice on the same or
the next business
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day. Any notice or demand to Landlord shall be addressed to Landlord as follows:
Xxxxxxx Xxxxxxxx
New York-New York Hotel
0000 Xxx Xxxxx Xxxx.
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000)000-0000
With copy to: Xxxx Xxxxx
New York-New York Hotel
0000 Xxx Xxxxx Xxxx.
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000)000-0000
Any notice or demand to Tenant shall be addressed to Tenant at:
Xxxxxxxx Xxxxxx
Il Fornaio (America) Corporation
0000 Xxxxxxx Xx.
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000)000-0000
With copy to: Xxxxxx X. Xxxx, Esq.
The Hyde Law Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Any party hereto may change its address for the purpose of receiving
notices or demands as herein provided by a written notice given in the manner
aforesaid to the other party hereto.
29.5 REMEDIES CUMULATIVE. The various rights, options, elections and
remedies of Landlord contained in this Lease shall be cumulative and no one of
them shall be construed as exclusive of any other, or of any right, priority or
remedy allowed or provided for by law and not expressly waived in this Lease.
29.6 SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions contained in this Lease shall apply to, bind and inure to the benefit
of the heirs, executors, administrators, legal representatives, successors and
assigns (where assignment is permitted) of Landlord and Tenant, respectively.
29.7 PARTIAL INVALIDITY. If any term, provision, covenant or condition
of this Lease, or any application thereof, should be held by a court of
competent jurisdiction to be invalid, void or unenforceable, all provisions,
covenants and conditions of this Lease, and all applications
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thereof, not held invalid, void or unenforceable, shall continue in full force
and effect and shall in no way be affected, impaired or invalidated thereby.
29.8 TIME OF THE ESSENCE. Time is of the essence of this Lease and all
of the terms, provisions, covenants and conditions hereof.
29.9 ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties and cannot be changed or terminated orally.
29.10 NO PARTNERSHIP. Nothing contained in this Lease shall be deemed
or construed by the parties hereto or by any third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant. Neither the method of computation
of rent nor any other provisions contained in this Lease nor any acts of the
parties hereto shall be deemed to create any relationship between Landlord and
Tenant other than the relationship of landlord and tenant.
29.11 BROKERS. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Lease, and covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any broker or
agent with respect to this Lease or the negotiation thereof.
29.12 CAPTIONS. The captions appearing at the commencement of the
sections hereof are descriptive only and for convenience in reference to this
Lease and in no way whatsoever define, limit or describe the scope or intent of
this Lease, nor in any way affect this Lease.
29.13 USAGE. Masculine or feminine pronouns shall be substituted for
the neuter form and vice versa, and the plural shall be substituted for the
singular form and vice versa, in any place or places herein in which the context
requires such substitution or substitutions.
29.14 GOVERNING LAW. The laws of the State of Nevada shall govern the
validity, construction, performance and effect of this Lease.
29.15 COVENANTS. Whenever in this Lease any words of obligation or duty
are used in connection with either party, such words shall have the same force
and effect as though framed in the form of express covenants on the part of the
party obligated.
29.16 JOINT AND SEVERAL OBLIGATIONS. In the event Tenant now or
hereafter shall consist of more than one person, firm or corporation, then and
in such event, all such persons, firms or corporations shall be jointly and
severally liable as Tenant hereunder.
29.17 SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute a reservation of or option for the Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
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29.18 LIENS AND ACTIONS AFFECTING PROPERTY. Should any claim or lien be
filed against the Premises, or any action or proceeding be instituted affecting
the title to the Premises, Tenant shall give Landlord written notice thereof as
soon as Tenant obtains actual or constructive knowledge thereof.
29.19 NO MEMORANDUM. Neither this Lease nor a memorandum of this Lease
shall be recorded without Landlord's prior written consent, which consent maybe
withheld in Landlord's discretion.
29.20 CONSTRUCTION. This Lease shall not be construed either for or
against Landlord or Tenant, but this Lease shall be interpreted in accordance
with the general tenor of the language.
29.21 AUTHORITY. If Tenant is not a natural person, Tenant hereby
represents that it is qualified and authorized to enter into, and perform its
obligations under, this Lease.
29.22 ATTORNEYS' FEES. If any action or proceeding is brought by
Landlord or Tenant to enforce its respective rights under this Lease, the
unsuccessful party therein shall pay all costs incurred by the prevailing party
therein, including reasonable attorneys' fees to be fixed by the court.
ARTICLE 30
DISPUTE RESOLUTION
If any controversy or claim between the parties hereto, other than
Landlord in unlawful detainer, arises out of this Lease, and 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 such
disagreement or dispute through mediation, 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.
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.
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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. 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.
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 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.
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Nothing contained herein is intended to, nor shall, limit Landlord's
right to pursue any action in unlawful detainer in the case of an Event of
Default by Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD
NEW YORK - NEW YORK HOTEL, LLC
a Nevada limited liability company
By: /s/ Xxxxxxx Xxxxxxxx
Title: President/CEO
------------------------------
TENANT
IL FORNAIO (AMERICA) CORPORATION
a California corporation
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Chairman
------------------------------
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EXHIBIT "A"
PREMISES
A - 1
Site plan showing premises.
51
EXHIBIT "B"
WORK LETTER
FOR
IL FORNAIO
1. LANDLORD'S WORK - The following work is to be performed by Landlord and
Tenant where indicated:
A. COMMON AREA
1. Utilities:
a. Sanitary Sewer and Grease Waste Piping - The
Landlord will install sanitary sewer and
grease waste stubs to Tenant kitchen
locations. The Tenant will provide
distribution piping, floor drains and floor
sinks in all other locations. Invert and
line size will be specified by JBA. Tenant
is responsible for payment of the sewer
usage and hookup charges, as well as any
similar fees and charges levied on the Hotel
based upon Tenant usage under the rules of
the Xxxxx County Sanitation District.
b. Grease Interceptors - The Landlord will
provide at its expense one or more grease
interceptors that will be shared by all
grease producers. The cost of maintaining
the interceptor will be shared by all grease
producers. The cost sharing formula should
be based on grease production as determined
by an impartial engineer. The Tenant will
maintain grease lines that are used
exclusively by the Tenant. The Landlord will
maintain all shared grease piping.
c. Domestic Water - The Landlord will stub into
each demised area cold water, 140 degrees
softened hot water and 120 degrees hard hot
water. The size of the supply taps will be
specified by the Landlord's engineer. Tenant
will reimburse Landlord for sub-meters.
d. Rendering Management - The Landlord will
provide space for the Tenants rendering
storage bins in the loading dock area. The
Tenant will maintain the area. If the
rendering bin area is
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shared with other Tenants, the Landlord
will require all Tenants to contribute a
fair share to the maintenance of this
area.
e. Electrical Service - Landlord will install
at Landlord's expense, disconnecting means
in Landlord's switchboard and electrical
conduit or tray (without wiring) to the
Premises at a point determined by Tenant and
Landlord. Electrical service shall be at
least 1200 amp., 120/208 volt, three phase,
four wire, for Tenant's combined power and
lighting requirement. Conduit shall be sized
to accommodate the above service. Final
connection to the Landlord's switchgear
shall be done by Landlord at Tenant's
expense. Tenant will reimburse Landlord for
sub-meters.
f. Gas - Landlord will provide, install and
maintain a main gas feed that is sufficient
to operate Tenant's equipment and business
at a point within the Premises to be
determined by Tenant and Landlord. Tenant
will reimburse Landlord for submeters.
g. Sprinkler System - Landlord will install an
automatic fire sprinkler system to the
Premises in compliance with the requirements
of local and state agencies. Such sprinkler
system will be based on a specific grid and
spacing plan for Tenant, provided that
Tenant delivers such plan to Landlord's
sprinkler contractor prior to the
installation of a standard grid and spacing.
The cost to Tenant of modifying the
sprinkler system will be the cost of
relocation, re-sizing or adding sprinkler
mains or heads to the specific grid and
spacing for Tenant's business. Modification
of the sprinkler system within the Premises
will be subject to the review and approval
of the Landlord and its design professionals
and performed by Landlord's contractor at
Tenant's expense. Modifications required by
Tenant outside its Premises and related to
modifications of the existing system will be
done by Landlord at Tenant's expense. In
conjunction with the sprinkler system,
Tenant will install, at Tenant's expense,
one smoke detector in the Premises at a
point to be determined by Landlord. Where
required by local code, Tenant shall also
install at Tenant's expense, life safety
equipment such as audiovisual horn devices
or additional smoke detector devices.
Landlord
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confirms fire hose cabinets are not
required within any Tenant spaces.
h. HVAC System - The Landlord is responsible
for the installation and maintenance of all
HVAC equipment and all main distribution
ductwork to the demised premise. The Tenant
is responsible for connecting to the taps
provided, all VAV boxes and low velocity
distribution ductwork within the demised
premise. The Tenant will provide all local
controls and interface with the Landlord's
EMS system as needed. The Tenant will return
air to the return taps provided within the
demised premise or to the common plenum
above the demised premise. The Tenant will
provide transfer grills and fans as required
within the demised premise as needed to
insure proper air balance.
i. Smoke Evacuation - Landlord will provide,
install and maintain a smoke evacuation
system for the premises. The Tenant
understands that to the extent that the
smoke evacuations system and the Tenant's
kitchen exhaust system share the same
control sequence the Landlord will use the
Tenant's kitchen exhaust for smoke
evacuation. The Landlord will pay for any
control wiring or relays that may be needed
to interlock these two systems.
j. Fire Dampers - Landlord shall provide and
install fire dampers, in accordance with all
codes. Landlord shall also provide and
install fire dampers where the Landlord's
ductwork passes through service corridor or
other fire separations. Tenant shall provide
all fire dampers within the Tenant spaces
and as required for Tenant's toilet, kitchen
exhaust and dishwasher exhaust floor
penetrations, if any are required.
k. Chilled Water for Refrigeration - The
Landlord agrees to stub chilled water into
each demised premise. Identification of
equipment to use water-cooled and air-cooled
compressors will be the joint effort of
Landlord and Tenant.
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B. BUILDINGS
1. Structure.
a. General Demising Partitions - Partitions
with exposed studs on the interior shall be
provided between the Premises and other
areas. These partitions shall extend from
finished floor to the underside of the
structure, shall be of studs and drywall on
the exterior. All the finishes on the common
area side will be provided by the Landlord
and all of the finishes on the Tenant side
will be provided by the Tenant.
b. Low Rise Building Protrusion - The Tenant
will provide all wall, ceiling and roofing
structures, except the Landlord shall pay
the Tenant an allowance of $45 per linear
foot for the construction of Tenant's
storefronts. See Item 2H.
c. Landlord shall pour the floor slab designed
for a live load of not less than 120 lbs.
PSF for the Premises.
11. TENANT'S WORK - The following work required to complete and place the
Premises in finished condition ready to open for business is to be performed by
the Tenant at the Tenant's own expense. Tenant's Work includes, but is not
limited to, the following:
A. GENERAL PROVISIONS.
All work done by Tenant shall be governed in all respects by,
and be subject to the following:
1. Tenant shall deliver to Landlord within ten (10) days
after the execution of this Lease and prior to the
commencement of any of the Tenant Work the Tenant's
latest financial statement and a written guarantee
that the Project will be completed in a timely manner
per the lease agreement.
2. All Tenant's Work shall conform to applicable
statutes, ordinances, regulations and codes and the
requirements of all rating bureaus and which by this
reference is incorporated into and made a part of
this Lease. Tenant shall obtain and convey to
Landlord all approvals with respect to electrical,
water, sewer, heating, cooling, and telephone work,
all as may be required by any agency or utility
company.
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3. Except for minor and routine matters, no approval by
Landlord shall be deemed valid unless in writing and
signed by Landlord's agent, Xxxxx Xxxxxxx.
4. Prior to commencement of Tenant's Work and until
completion thereof, or commencement of the Lease
Term, whichever is the last to occur, Tenant shall
effect and maintain Builder's Risk Insurance covering
Landlord, Tenant, and Tenant's contractors, as their
interests may appear, against loss or damage by fire,
vandalism and malicious mischief and such other risks
as are customarily covered by a standard "All Risk"
policy of insurance protecting against all risk of
physical loss or damage to all Tenant's Work in place
and all materials stored at the site of Tenant's Work
and all materials, equipment, supplies and temporary
structures of all kinds incidental to Tenant's Work,
and equipment, all while forming a part of or
contained in such improvements or temporary
structures, or while on the Premises or within the
Center all to the actual replacement cost thereof at
all times on a completed value basis. In addition,
Tenant agrees to indemnify and hold Landlord harmless
against any and all claims for injury to persons or
damage to property by reason of the use of the
Premises for the performance of Tenant's Work, and
claims, fines, and penalties arising out of any
failure to Tenant or its agents, contractors and
employees to comply with any law, ordinance, code
requirement, regulations or other requirement
applicable to Tenant's Work and Tenant agrees to
require all contractors engaged in the performance of
Tenant's Work to effect and maintain and deliver to
Tenant and Landlord, certificates evidencing the
existence of, and covering Landlord, Tenant and
Tenant's contractors, prior to commencement of
Tenant's Work and until completion thereof, the
following insurance coverages:
a. Workmen's Compensation and Occupational
Disease Insurance in accordance with the
laws of the State of Nevada.
b. Comprehensive General Liability Insurance,
including independent contractors,
contractual and completed operations,
including death resulting therefrom, and
personal injury in the limits of
$10,000,000 for any one occurrence and
property damage in the limits of
$10,000,000 for any one occurrence or a
combined single limit policy of $10,000,000
per occurrence.
B -5
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c. Comprehensive Automobile Insurance,
including "non-owned" automobiles, against
bodily injury, including death resulting
therefrom, in the limits of $1,000,000 for
any one occurrence and $1,000,000 property
damage or a combined single limit of
$1,000,000.
d. Subcontractor and other independent
contractors must have limits for above
coverage approved by the General Contractor
and Landlord, which limits shall not exceed
$1,000,000.
5. Tenant agrees that the contract of every contractor,
subcontractor, mechanic, journeyman, laborer,
material supplier or other person or entity
performing labor upon, or furnishing materials or
equipment to, the Premises in connection with
Tenant's Work shall contain the following provision:
"Contractor" acknowledges that this provision is
required under Tenant's lease (hereinafter the
"LEASE") of the Premises to be improved under this
Contract (the "LEASED PREMISES" ) from New
York-New York Hotel, LLC ("LANDLORD"). In
consideration of Tenant's engagement of Contractor
to perform the work hereunder, and as an
inducement to Tenant to enter into this Contract
with Contractor, Contractor acknowledges,
covenants and agrees that any mechanics' lien
which it may hereafter file, claim, hold or assert
with respect to the work hereunder (1) shall
attach only to Tenant's interest in the Premises
under the Lease and (ii) shall be subject,
subordinate and inferior to the lien of any
mortgage(s) now or hereafter held upon and against
the Landlord by any lender(s) now or hereafter
providing funds for the financing for the Premises
or the Hotel in which the Premises is located,
notwithstanding that any such mortgage(s) may be
recorded after the commencement of work hereunder
and that Contractor's mechanics lien otherwise
might be entitled to priority over any such
mortgages(s).
6. If Landlord in its sole and absolute discretion
determines that the Hotel or the business conducted
therein would otherwise be adversely affected, any or
all work shall be done by recognized union labor.
X -0
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X. XXXXX XXXX.
All Tenant's with rest room facilities or food preparation
areas shall install a floor slab waterproofing membrane in the
Premises at Tenant's expense. All floor penetrations must be
sleeved and waterproofed.
C. STOREFRONTS AND INTERIORS.
1. Storefronts shall be designed within parameters of
the Landlord's schedule and constructed with the
Landlord's written approval. All storefronts must
have a New York City theme in keeping with the theme,
quality and style of the Hotel and must be approved
by the Landlord before construction commences.
2. All materials employed in the construction of
storefronts shall be as approved by Landlord and as
defined by applicable building codes.
3. Storefront and Interior color schemes must harmonize
with the color scheme of the surrounding
building/storefront types and must be approved by
the Landlord.
4. All swinging entrance doors must be recessed in such
a manner that the door, when open, will not project
beyond the lease line.
D. CEILING.
1. All ceilings and coves shall not exceed 20'0" above
the finished floor (excluding mezzanines) unless
otherwise approved by Landlord.
2. Tenant's ceilings shall be acoustic tile, gypsum
board, plaster, or perforated metallic acoustic
system suspended by adequate suspension systems to
conform to final requirements of governing
authorities and Landlord.
3. The space above the ceiling line, which is not
occupied or allotted to Landlord's Work (structural
members, duct work, piping, etc.) may be used for the
installation of suspended ceiling, recessed lighting
fixtures and duct work. Under no circumstances will
Tenant's Work be hung or suspended from
non-structural construction. Any Tenant Work
involving the hanging or suspension of construction
shall be
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accomplished only by methods, in locations and by use
of assemblies approved by Landlord or Landlord's
engineer.
X. XXXXX.
All interior walls shall meet all applicable building codes.
Tenant shall install insulation on the demising walls and
interior walls as made necessary by building code, acoustics,
or design. Tenant shall provide any necessary bracing or
blocking.
F. INTERIOR PAINTING.
All interior painting and decoration shall be Tenant Work.
G. FLOOR COVERING.
The Landlord and Tenant will jointly coordinate floor
transitions at all entrances. The Tenant's floor transition
finishes will be applied directly to the slab provided.
H. ROOF STRUCTURE.
The Tenant shall frame the roof structure of the front
building adjacent to the open patio. No equipment installed
above the suspended ceiling in this area may protrude above
the roof line. The Landlord will reimburse the Tenant the
reasonable costs of installing a drywall roof on top of this
structure.
I. FURNITURE, FIXTURES, AND SIGNS.
The Tenant will provide identification signage as identified
in the elevation previously submitted for approval. All decor
signage in the common area will be provided by the Landlord.
All furnishings, trade fixtures, and related parts, including
installation shall be Tenant Work.
J. SUBMITTALS.
Preliminary Submittal by the Tenant shall include storefronts
and interiors, plans, elevations, specifications, color and
material boards, and a colored elevation of the storefront
facade.
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K. PLUMBING.
All plumbing and plumbing fixtures within the premises as
required by applicable codes, except utility service to the
area, shall be Tenant Work.
L. TOILET ROOM FIXTURES.
Furnishing and installation of wiring, lighting fixtures,
mechanical toilet exhaust systems, towel cabinets, soap
dishes, hand dryers, deodorizers, mirrors and other similar
items in toilet rooms within the Premises or as additionally
required by code shall be Tenant Work.
M. HEATING, VENTILATION AND AIR CONDITIONING.
1. Tenant's exhaust systems shall provide the required
exhaust air capacities and shall be independent of
the central cooling system. Tenant's exhaust systems
shall be inoperative during other than regular
business hours. Makeup or replacement air shall be
provided by the Tenant.
2. Tenant's HVAC systems shall be complete with air
distributions systems, ventilating systems, control
systems, insulation and all other components required
to make a complete system. Tenant's HVAC system
components shall be installed in locations as
designated by the Tenant.
3. The Tenant will install and maintain toilet exhaust
fans and ductwork for all Tenant installed bathrooms.
The Tenant's ductwork will terminate at a curb or
sleeve provided by the Tenant and installed by the
Landlord. The Landlord will provide a vertical chase
and floor penetration as needed enroute between the
Tenant's bathroom and the roof or wall penetration.
The Landlord will locate the penetration as close as
possible to the Tenant's bathroom. In the event that
a roof mounted fan is used the Tenant will also
provide a pitch pocket. The Tenant will provide
design information prior to the roof pour on May 6,
1996.
4. In first floor spaces that fall below the high rise
structure, the Tenant will connect all vents to the
closest inverted T-Y if this has been provided.
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60
5. The Tenant will install and maintain dishwasher fans
and ductwork for all Tenant installed kitchens. The
Tenant's ductwork will terminate at a curb or sleeve
provided by the Tenant and installed by the Landlord.
The Tenant will provide vertical ductwork, drywall
enclosures, fire dampers and floor penetrations as
needed enroute between the Tenant's kitchen and the
roof or wall penetration. In the event that a roof
mounted fan is used, the Tenant will also provide a
pitch pocket. The Tenant will provide design
information prior to the roof pour on May 6, 1996.
6. Upon completion of all work, the Tenant will test and
prepare an air balance report for all HVAC, and
exhaust equipment dedicated to the Tenant's demised
premises. A copy of that report will be forwarded to
the Landlord. If it is more practical to have one
contractor balance the Tenant and Landlord equipment
together, then the Tenant agrees to pay a fair share
of that costs.
7. The Tenant will install all kitchen exhaust ductwork
from the collars on the Tenant's hoods to the roof,
including all fireproofing, clean-outs, roof curbs,
and pitch pockets. The Tenant will maintain all
exhaust ductwork in accordance with all codes and
accepted practice. The Tenant will supply and install
all hoods, exhaust fans, and related wiring. The
Tenant will provide all hard wire and low voltage
control interlocks between the exhaust system and the
make-up air system, smoke evacuation system, fire
control system, and energy management system.
8. The Tenant will supply and install the supplemental
make-up air system if required. Tenant will maintain
all supplemental makeup air fans dedicated solely to
Tenant spaces.
N. MECHANICAL EQUIPMENT.
All mechanical equipment including dumb-waiters, elevators,
escalators, freight elevators, conveyors, and their shafts and
doors, located within the Premises, including electrical work
for these items. Locations, size and design of roof vents,
HVAC equipment, units, hoods and caps shall be approved by
Landlord. Landlord reserves the right of disapproval of any
equipment to be placed on the roof, provided Landlord makes a
suitable substitute location available. Tenant shall install
equipment at locations where structural reinforcements are
provided. The roof load is to be determined by Landlord's
structural engineer's load requirements.
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Landlord approved changes in the structure as necessary to
accommodate Tenant's equipment shall be made by Landlord at
Tenant's expense.
Cuts, curbs and openings including any structural support and
steel, shall be provided and performed by a contractor
designated by Landlord at Landlord's expense. In addition, all
cant strips, base furnishings and other work necessary to
complete the permanent weather proofing of Landlord's roof as
a result of roof cuts or openings required by Tenant shall be
performed by a contractor designed by Landlord at Landlord's
expense.
O. ELECTRICAL.
1. All interior distribution Panels, lighting panels,
power panels, conduits, outlet boxes, switches,
outlets and wires within the Premises shall be Tenant
Work. Tenant shall provide electric conduit and boxes
in the concrete floor slab, ceiling and walls,
including all electrical service panels, pull boxes
and equipment. Landlord will provide all work
outlined in Section I.A.1.e of this Work Letter.
2. All electrical fixtures, including lighting fixtures
and equipment, and installation thereof shall be
Tenant Work. Lighting systems (except security and
emergency lighting) must be controlled by lighting
contactors.
3. All conduit necessary for telephone wires within the
Premises shall be Tenant Work.
4. Wiring connections to Tenant's equipment within the
Premises shall be Tenant Work.
P. COMMUNICATIONS SYSTEMS.
1. Telecommunications Service - The Tenant will install
a telephone system that is fully compatible with the
Landlord's system. The Landlord will supply the
Tenant with compatibility criteria. The Landlord will
stub a communications conduit into each demised
premise.
2. POS - The Tenant will install a POS system that is
fully compatible with Infogenesis. The Landlord will
supply the Tenant with
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compatibility criteria. The Landlord will stub a POS
conduit into each demised premise.
Q. TEMPORARY SERVICES.
Any temporary services required by Tenant during its
construction period, including heat, water or electrical
service shall be secured from Landlord or Landlord's
contractor, as the case may be, at Tenant's sole cost and
expense.
R. SUBSEQUENT REPAIRS AND ALTERATIONS.
Landlord reserves the right to require changes in Tenant's
Work when necessary by reason of code requirements.
S. DOORS AND EXITING REQUIREMENTS.
1. Tenant will be responsible for adherence to exiting
codes.
2. Tenant will maintain a clear exiting path through the
stockroom to Tenant's rear door for those Premises
that contain a rear door.
T. CONSTRUCTION ACTIVITIES.
1 If the Tenant requires any roof penetrations in
addition to those already provided for in this lease
then the Landlord will provide such penetrations at
the Tenant's expense.
2. Any additional structural support necessitated by
Tenant's equipment, fixtures or inventory in the
mezzanine shall be provided by Tenant at Tenant's
expense and approved by Landlord.
3. If Tenant will not open by the date the Hotel opens
for business and such date is after the Commencement
Date, Tenant shall be responsible for the
installation and expense of the temporary storefront
or barricade shielding the interior of the Premises
from the Hotel as well as for the removal and cost
thereof after opening for business. If Tenant is
under construction prior to the date the Hotel is
open for business, such temporary storefront shall be
installed at least three (3) days prior to such
opening date.
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4. All construction activities on site must be
coordinated directly with Xx. Xxxxx Xxxxxx,
Superintendent for Xxxxxxx Xxxxxx Associates (MCA).
General site rules to be observed are:
a. Normal construction work hours are 6:00 A.M.
to 2:30 P.M.
b. All employees working on site must belong to
local unions, except as permitted in the
lease. All employees on site must receive a
badge from MCA to enter the site.
c. Tenant contractors must schedule major
deliveries after normal work hours and must
provide their own forklifts and cranes.
d. Tenant contractors may use MCA man hoists
free of charge during normal working hours.
e. Tenant contractors may schedule the use of
the material hoist after normal working
hours. Extra cost of operators and mechanics
will be shared by all users in accordance
with their use.
f. All employee parking must be off site.
g. No space is available for offices for Tenant
contractors on site, except within their own
spaces. Temporary phone lines are not
available.
h. Temporary power and water is available to
Tenant spaces. Tenant electrical
subcontractor may have to pull wire to
Tenant space.
i. Cutting of holes through existing walls or
slabs for equipment access will not be
allowed.
j. A common trash container will be located on
site to be used by all Tenant contractors.
Tenants will share the cost of trash removal
based on a fair square footage formula.
k. Tenants will provide their own portable
toilets on site. Contacts should be made
with "Mr. Potty" to simplify maintenance and
reduce costs.
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