LEASE AND OPTION
"Tollgate Casino"
Central City, Colorado
TABLE OF CONTENTS
REFERENCE DATA . . . . . . . . . . . . . . . . . . . . . . . .
LEASED PREMISES. . . . . . . . . . . . . . . . . . . . . . . .
Premises and Property . . . . . . . . . . . . . . .
Landlord's Improvements . . . . . . . . . . . . . . .
LEASED TERM. . . . . . . . . . . . . . . . . . . . . . . . . .
Primary Term. . . . . . . . . . . . . . . . . . . . .
Possession of Premises and Property . . . . . . . . .
Tenant Improvements Prior to Commencement Date. . . . . . . . .
LEASE RENTALS. . . . . . . . . . . . . . . . . . . . . . . . .
Base Rental - Monthly . . . . . . . . . . . . . . . .
TRIPLE NET LEASE . . . . . . . . . . . . . . . . . . . . . . .
Triple Net Lease. . . . . . . . . . . . . . . . . .
Payment of Taxes and Liens. . . . . . . . . . . . . .
New Taxes . . . . . . . . . . . . . . . . . . . . . .
Triple Net Payments . . . . . . . . . . . . . . . . .
Parking Improvement or Impact Fees. . . . . . . . . .
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . .
USE OF LEASED PREMISES . . . . . . . . . . . . . . . . . . . .
Use of Leased Premises. . . . . . . . . . . . . . . .
Prohibited Uses . . . . . . . . . . . . . . . . . . .
MAINTENANCE AND REPAIRS: ALTERATIONS AND ADDITIONS. . . . . .
Maintenance and Repairs . . . . . . . . . . . . . . .
Alterations and Additional Improvements . . . . . . .
Construction on Leased Premises . . . . . . . . . . .
Builders' Risk Insurance. . . . . . . . . . . . . . .
GAMING AND OTHER PROVISIONS. . . . . . . . . . . . . . . . . .
Licensing . . . . . . . . . . . . . . . . . . . . . .
Failure to Obtain Approvals . . . . . . . . . . . . .
ENTRY BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . .
LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . .
Licensing . . . . . . . . . . . . . . . . . . . . . .
Pollutants. . . . . . . . . . . . . . . . . . . . . .
Exemption of Landlord From Liability. . . . . . . . .
INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Coverage. . . . . . . . . . . . . . . . . . . . . . .
Contractor's Insurance. . . . . . . . . . . . . . . .
Insurance Policies. . . . . . . . . . . . . . . . . .
Waiver of Subrogation . . . . . . . . . . . . . . . .
DAMAGES OR DESTRUCTION . . . . . . . . . . . . . . . . . . . .
Landlord's Obligation to Rebuild. . . . . . . . . . .
Rent Adjustment . . . . . . . . . . . . . . . . . . .
Termination . . . . . . . . . . . . . . . . . . . . .
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . .
Taking. . . . . . . . . . . . . . . . . . . . . . . .
Restoration and Rent Adjustment . . . . . . . . . . .
Vacation. . . . . . . . . . . . . . . . . . . . . . .
ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . .
Assignment of Lease . . . . . . . . . . . . . . . . .
Assumption and Release. . . . . . . . . . . . . . . .
QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . .
EVENTS OF DEFAULTS: REMEDIES. . . . . . . . . . . . . . . . .
Events of Default . . . . . . . . . . . . . . . . . .
Landlord's Remedies Upon an Event of Default. . . . .
Late Charges. . . . . . . . . . . . . . . . . . . . .
Event of Default by Landlord. . . . . . . . . . . . .
Tenant's Remedies . . . . . . . . . . . . . . . . . .
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .
Estoppel Certificate. . . . . . . . . . . . . . . . .
Transfer of Landlord's Interest . . . . . . . . . . .
Regulatory Issues Affecting Leased Premises . . . . .
Captions; Attachments; Defined Terms. . . . . . . . .
Severability. . . . . . . . . . . . . . . . . . . . .
Costs of Suit . . . . . . . . . . . . . . . . . . . .
Time; Joint and Several Liability . . . . . . . . . .
Binding Effect; Choice of Law . . . . . . . . . . . .
Waiver. . . . . . . . . . . . . . . . . . . . . . . .
Surrender of Leased Premises. . . . . . . . . . . . .
Holding Over. . . . . . . . . . . . . . . . . . . . .
Covenants Running with the Land . . . . . . . . . . .
Force Majeure . . . . . . . . . . . . . . . . . . . .
Liquor Licenses . . . . . . . . . . . . . . . . . . .
Memorandum of Lease . . . . . . . . . . . . . . . . .
No Broker . . . . . . . . . . . . . . . . . . . . . .
Notices . . . . . . . . . . . . . . . . . . . . . . .
Representations . . . . . . . . . . . . . . . . . . .
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . .
OPTION TO PURCHASE. . . . . . . . . . . . . . . . . . . . . . .
Option. . . . . . . . . . . . . . . . . . . . . . . . . .
Purchase Contract . . . . . . . . . . . . . . . . . . . .
EXHIBIT 2.1.1
Real Property and Improvements
EXHIBIT 21.2
Real Estate Purchase and Sale Contract
LEASE AND OPTION
"Tollgate Casino"
Central City, Colorado
THIS LEASE, made and entered into this _____ day of May, 1999,
by and between U.S. Bank, N.A., Trustee (formerly Colorado National
Bank, Trustee) (hereinafter "Landlord") and Global Central
Corporation, a Colorado corporation, (hereinafter "Tenant"),
W I T N E S S E T H:
WHEREAS, Xxxxxxxx is the owner of that certain real property
located at 000 xxx 000 Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx (the
"Premises") as well as certain furniture, fixtures, machinery and
equipment located therein or thereon, a list of which is attached
hereto as Exhibit "A" (the "Property"), commonly known as the
"Tollgate Casino" (the "Casino"); and
WHEREAS, Tenant is experienced in the management and operation
of gaming casinos; and
WHEREAS, Tenant desires to lease with an option to purchase
from Landlord, and Landlord is willing to lease and grant to Tenant
an option to purchase, the Premises and the Property to be used to
operate the Casino under and pursuant to gaming, liquor and
restaurant licenses to be applied for and obtained by Tenant (the
"Licenses").
NOW, THEREFORE, in consideration of the rents and agreements
set forth herein and intended to be legally bound thereby, Landlord
and Tenant agree as follows:
1. REFERENCE DATA. Any reference in this Lease to the following
terms shall incorporate therein the data defining such terms as set
forth in this Article
PREMISES: 000 xxx 000 Xxxx Xxxxxx, Xxxxxxx Xxxx,
Xxxxxxxx
PROPERTY: All tangible assets and property located on or
in the Premises owned by Landlord, including
all furniture, fixtures and equipment listed
on Exhibit "A."
LEASE TERM: The term (the "Term") of this Lease shall be
twenty-four (24) months commencing as 12:00
a.m. on the first day following Tenant
obtaining the Licenses (the "Commencement
Date") and terminating at 12:00 a.m. on the
date next following 24 months thereafter (the
"Expiration Date"), subject to Tenant's right
to terminate without liability if the Licenses
are not obtained by August 1, 1999 upon thirty
(30) days' prior written notice.
PERMITTED USES: Casino, including restaurant and beverage
service, which shall be operated in
accordance with the Licenses.
LEASE FEE: Upon execution of this Agreement, Tenant
shall pay to Landlord a nonrefundable
$10,000 Lease Fee which is paid as
consideration for the execution of this
Lease and shall be retained by Landlord.
DEPOSIT: Upon issuance of the Licenses, Tenant shall
pay to Landlord an additional $20,000 deposit,
which shall be paid into escrow to be applied
against the purchase price for the Premises
and Property should Tenant exercise the Option
to Purchase provided for in Section 20 hereof.
If Tenant does not exercise the Option to
Purchase, the $20,000 deposit shall be
refunded in full to the Tenant upon
termination of this Agreement, without
interest thereon or deduction therefrom;
provided, however, that said $20,000 shall be
treated as a damage or security deposit, and
such amount shall be controlled by the
provisions of Section 6 of this Lease.
OPTION TO PURCHASE: At any time following the Commencement Date
and prior to the Expiration Date, Tenant
shall have the right and option to purchase
the Premises and Property. At the request of
Xxxxxxxx, the Closing Date of the purchase may
be deferred until as late as May 31, 2001.
Should Landlord elect to defer the Closing
Date, all Base Rent up to a maximum of four
(4) months' Base Rent paid by Tenant under
this Lease after the option exercise date (the
"Post-Option Base Rent") shall be applied
towards and credited against the closing cash
portion of the purchase price. The purchase
price shall be $1,400,000 payable as follows:
At closing the sum of $130,000, less the total
Post-Option Base Rent paid to Landlord, plus
the $20,000 escrow deposit; with the balance
of $1,250,000 payable together with interest
at the rate of six percent (6%) per annum
amortized in equal monthly installments of
principal and interest over a period of nine
(9) years.
2. LEASED PREMISES
2.1 Premises and Property.
2.1.1 The premises ("Leased Premises") to be leased
by Landlord to Tenant is described as follows:
The real property together with all improvements thereon
legally described on Exhibit 2.2.1 hereto and commonly known as 106
and 000 Xxxx Xxxxxx, Xxxx xx Xxxxxxx Xxxx, Xxxxxx xx Xxxxxx, Xxxxx
xx Xxxxxxxx.
2.1.2 The personal property and assets (the
"Property") to be leased by Landlord to Tenant shall include all
tangible and intangible property and assets located on or in the
Premises on the date of this Lease owned by Landlord, including,
without limitation, all furniture, fixtures, machinery and
equipment set forth on Exhibit "A" hereto.
2.2 Landlord's Improvements.
2.2.1 There has been constructed and installed upon
the Leased Premises certain improvements, fixtures, machinery,
equipment, excluding slot machines and gaming equipment which will
permit the Tenant to conduct upon the Leased Premises, gaming
operations, food and beverage operations, as well as any and all
other operations normally incident thereto ("Landlord's
Improvements").
2.2.2 Landlord represents that the Landlord's
Improvements comply with all federal, state and local laws,
including, but not limited to, applicable building codes, design
review guidelines, historic requirements and Environmental Laws.
Landlord further warrants and shall indemnify and defend Tenant
from any and all mechanics' and materialmens' liens filed against
the Leased Premises arising in any fashion from the construction of
the Landlord's Improvements. Tenant shall have the same right to
remove such liens and charge Landlord with the cost thereof
pursuant to Section 11 of this Lease.
2.2.3 Landlord shall warrant the Premises and the
Property free from all material defects in workmanship and
materials. It is expressly understood that the Property shall not
include any tangible assets acquired or leased by Tenant from third
parties who are not affiliated with, controlled by or under common
control of Landlord. Landlord shall deliver possession of the
Premises and Property, including the HVAC system, the mechanical
systems and the elevator in good working order at or before the
Commencement Date. Should any portion of the Premises or Property
described herein, including the HVAC system, mechanical systems and
elevator, require any repair in order to render them in good and
working order on the Commencement Date, Xxxxxx agrees to bear the
first $5,000 of any such expenses, with any expenses in excess of
such $5,000 to be Landlord's responsibility, which Xxxxxx agrees to
offset against payments of Base Rent hereunder. In the event this
Agreement terminates prior to the Commencement Date due to the
failure of Tenant to obtain the Licenses, then any amounts expended
by Tenant in excess of such $5,000 shall be reimbursed by Landlord
within 20 days following the termination of this Agreement. Should
repair be necessary in order to render such systems in good working
order and repair, Xxxxxx agrees to cooperate with Landlord to
enforce Landlord's right for indemnity from any third party
independent contractors who may be responsible to Landlord for such
repair. This provision shall not be construed to constitute a
release of Landlord of its primary responsibility to deliver the
Premises and Property free from all material defects in workmanship
and materials.
3. LEASED TERM
3.1 Primary Term. The term of this Lease (the "Lease Term")
shall be for twenty-four (24) months and shall commence (the
"Commencement Date" or "Effective Date") when Tenant has received
all Licenses and appropriate administrative approvals to commence
operations upon the subject Premises, including, without
limitations, local approvals from the City of Central City, and
State of Colorado, liquor license approval, as well as approval
with respect to either the Division of Gaming, or the State of
Colorado Limited Gaming Control Commission, as required. Further,
this Lease shall not be effective as against Tenant unless and
until all of the proper administrative approvals required with
respect to the same have been obtained including, without being
limited to, approval by either the Division of Gaming or the
Colorado Limited Gaming Control Commission, as well as the Division
of Liquor Enforcement, State Department of Revenue, State of
Colorado. Tenant may terminate this Lease without liability upon
thirty (30) days' notice if the Licenses and other administrative
approval are not obtained by August 1, 1999.
3.2 Possession of Premises and Property. Landlord shall
deliver possession of the Leased Premises and Property to Tenant on
May 22, 1999. During the period commencing the date the Tenant
takes possession of the Premises and Property and ending the
Commencement Date, Xxxxxx agrees to reimburse Landlord for any and
all utility expenses incurred by Landlord for the Leased Premises
resulting from Xxxxxx's occupancy of same prior to the Commencement
Date.
3.3 Tenant Improvements Prior to Commencement Date. After
Xxxxxx takes possession of the Premises and Property but prior to
the Commencement Date, Tenant shall be permitted to undertake
improvements on the Leased Premises and the Property to prepare for
commencement of operations, subject in all respects to the
provisions of Sections 8 and 11 of this Lease. Prior to commencing
any construction, alteration or improvement prior to the
Commencement Date, Tenant shall obtain and deliver to Landlord a
surety bond in an amount of at least $100,000 to protect Landlord
from any lien claims which may be incurred during the initial
period of possession. All alterations and improvements shall be
undertaken in strict conformity with the provisions of Sections 8
and 11 of this Lease.
4. LEASE RENTALS
4.1 Base Rental - Monthly.
4.1.1 Commencing on the Effective Date and continuing
until expiration or termination of the Lease Term, Tenant shall pay
to the Landlord monthly rentals equal to $6,000 per month.
4.1.2 Such monthly Base Rental payments shall be due
on the Commencement Date and monthly thereafter.
5. TRIPLE NET LEASE
5.1 Triple Net Lease.
5.1.1 Following commencement of the Lease Term,
Tenant shall pay all costs and expenses of operation and
maintenance of the Leased Premises, including by way of
illustration but not limited to: real and personal property taxes
and assessments (including special assessments) and any tax in
addition to or in lieu thereof, whether assessed against Landlord
or Lessee; utilities; supplies; insurance; license, permit and
inspection fees; costs of repairs, maintenance and improvements,
and all other expenses of the Leased Premises, but excluding:
5.1.1.1 Costs of repairs or rebuilding
necessitated by condemnation;
5.1.1.2 Any interest on borrowed money or debt
amortization;
5.1.1.3 Depreciation on the Building;
5.1.1.4 Any settlement, payment, or judgment
incurred by Landlord or their agents due to their negligence, as
established by a court of law;
5.1.1.5 Cost of any damage to the Building caused
directly by Xxxxxxxx's negligence; and
5.1.1.6 Any costs that have already been directly
paid by Xxxxxx.
5.1.2 This Lease is a triple net lease, and
subsequent to commencement of the Lease Term, the Landlord shall
have no obligation of any kind to make any expenditures of any
nature upon the Leased Premises, except as specifically provided
herein. The Tenant shall throughout the Lease Term, or any
extension thereof, at its sole cost and expense, put, keep and
maintain the Leased Premises in good, substantial and sufficient
condition, repair and order, both inside and outside. The Tenant
shall not permit, commit or suffer waster, impairment, or
deterioration of the Leased Premises or the improvements thereon or
any part thereof.
5.2 Payment of Taxes and Liens. Tenant shall pay and
discharge all taxes, assessments, water rents, sewer rents, ground
rents, governmental or municipal charges, fines (related to
Tenant's actions or failure to act) and impositions, and all other
charges now or hereafter levied or assessed against the Leased
Premises, or any part thereof (the "Taxes"), and shall keep the
Leased Premises, or any part thereof, free of all liens or claims
of liens of mechanics, laborers and suppliers, and any lien of any
taxing authority or governmental body; except that Tenant may, in
good faith, contest the validity or amount of any such Taxes or
liens or claims of lien provided that (i) nothing in this Lease
contained shall imply any right on the part of Tenant to postpone
or defer payment for any purpose, unless the proceeding initiated
by Tenant to so contest such Taxes, liens or claims of lien shall
operate to prevent or stay the collection of such Taxes, or such
liens or claims of lien, and possible levy against or sale of the
Leased Premises, or any part thereof, to satisfy the same; and (ii)
Tenant shall have deposited with an escrow agent reasonably
acceptable to Landlord and Tenant a sum equal to the amount which
could be payable if Tenant is unsuccessful in such contest, or
otherwise secure payment thereof to the reasonable satisfaction of
Landlord. Upon the termination of such proceeding, Tenant shall
pay such Taxes or liens or part thereof as finally determined in
such proceeding from such escrow, the payment of which had been
deferred during the prosecution of such proceeding, or incurred in
connection therewith. Landlord shall cooperate with the Tenant and
attend and participate in or consent to any proceedings in which
Xxxxxxxx's presence is required in order to contest the imposition
of any tax. Any reduction in Real Estate Taxes created as a result
of Xxxxxx's protest shall first go to reimburse Tenant for the
expenses of the protest and, thereafter, shall be applied against
the next Taxes due. Any increase in the Taxes resulting from the
proceeding shall be paid by Xxxxxx.
5.3 New Taxes. In addition to rent and other charges to be
paid by Tenant hereunder, Tenant shall pay all ad valorem taxes
(other than any income taxes) whether or not now customary or
within the contemplation of the parties hereto; (a) upon, allocable
to, or measured by the area of the Leased Premises or on the rent
payable hereunder; or (b) upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Leased Premises, or any portion
thereof, or (c) upon or measured by the value of Tenant's personal
property, equipment or fixtures located in the Leased Premises; or
(d) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the
Leased Premises. Xxxxxx agrees to pay, before delinquency, any and
all taxes levied or assessed and which become payable during the
term hereof upon Tenant's equipment, furniture, fixtures and other
personal property located in the Leased Premises. Tenant shall
comply with the provisions of any law, ordinance or rule of the
taxing authorities which require Tenant to file a report of
Tenant's property located in the Leased Premises. Notwithstanding
anything to the contrary herein, with respect to extraordinary or
special assessments, they shall only be included in Real Estate
Taxes to the extent that they are payable in respect of the term of
this Lease, and such assessments shall be paid in installments over
the longest payment period permitted by law for the particular
assessment. In this connection, to the best of Landlord's
knowledge, Landlord warrants and represents to Tenant that the
Premises are not presently subject to any special assessments.
Tenant shall not be charged, nor be obligated to pay, any income,
profit, inheritance, estate, succession, gift, franchise, or
transfer taxes which are or may be imposed upon Landlord, its
successors or assigns, by whatsoever authority imposed or howsoever
designated.
5.4 Triple Net Payments. 1/12th of the estimated annual
Triple Net Payments, including 1/12th of the annual real and
personal property taxes and assessments, special assessments and
taxes shall be paid to Landlord on a monthly basis in addition to
the Base Rent payment. Tenant shall continue to make monthly
payments until notified by Landlord of a change thereof. Within 90
days after the Landlord receives a statement of actual taxes owed,
Landlord shall endeavor to give Tenant a statement showing the
actual taxes for the Premises and Property for the prior year. In
the event the total monthly payments which Xxxxxx made for the
prior year is less than the Tenant's actual responsibility, then
Tenant shall pay the difference in a lump sum within 30 days after
receipt of such statement from Landlord. Any overpayment by Xxxxxx
shall be credited toward the monthly Triple Net Payment next coming
due.
5.5 Parking Improvement, Impact Fees and Device Fees. Any
parking improvement, impact, device or similar fees that may be
imposed, assessed or levied by any governmental authority with
respect to the Leased Premises or the Tenant's operations to be
carried on thereon, shall be borne entirely by Tenant and paid as
the same become due, again, such fees being paid over the longest
payment period permitted by law. Tenant shall provide confirmation
to Landlord of payment of any parking improvement, impact fees
and/or device fees as the same become due and are paid.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum
of $20,000. Said sum shall be held by Xxxxxxxx as security for the
faithful performance by Tenant of all of the terms, covenants and
conditions of this Lease. If Tenant defaults with respect to any
provision of this Lease, including, without limitation, the
provisions relating to a payment of rent or adjustments, Landlord
may use, apply or retain all or any portion of the security deposit
for the payment of rent or other sum in default, with a payment of
any amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer by reason of Tenant's default.
If Tenant shall fully and faithfully perform every provision of
this Lease to be performed, and Tenant does not exercise the Option
to Purchase provided for herein, the security deposit shall be
returned to the Tenant at the expiration of the Lease term. In the
event Tenant elects to exercise its option to purchase herein, the
security deposit shall be applied against the purchase price as
more fully described in Section 21 hereof.
7. USE OF LEASED PREMISES
7.1 Use of Leased Premises. The Leased Premises and Property
shall be used for the purpose of conducting gaming, restaurant,
lounge and entertainment operations as well as any other lawful
activity.
7.2 Prohibited Uses.
7.2.1 The Leased Premises shall not be used for any
unlawful purpose, nor shall Tenant cause, maintain or permit any
nuisance in or about the Leased Premises. Tenant shall not commit
or suffer to be committed any waste in or upon the Leased Premises.
7.2.2 Tenant shall not use the Leased Premises or
permit anything to be done in or about the Leased Premises which
will in any way materially conflict with any law, statute, or
ordinances or governmental rule or regulation or requirement of
duly constituted public authorities now in force or which may
hereafter be enacted or promulgated. Tenant shall at its sole cost
and expense promptly comply in all material respects with all laws,
statutes, ordinances and governmental rules, regulations or
requirements of any board of fire underwriters or other similar
body now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Leased Premises. The judgment
of any court of competent jurisdiction or the admission of Tenant
in any action against Tenant, whether Landlord be a party thereto
or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive
of the fact as between Landlord and Tenant.
8. MAINTENANCE AND REPAIRS: ALTERATIONS AND ADDITIONS
8.1 Maintenance and Repairs.
8.1.1 Landlord's Obligations. Landlord shall keep
and maintain in good order, condition and repair, the exterior and
load-bearing walls, the foundation, roof, the structural elements
of the Premises and shall maintain the exterior areas of the
Premises.
8.1.2 Tenant's Obligations.
8.1.2.1 Tenant shall keep and maintain in good
order, condition and repair, the HVAC, electrical, plumbing and
mechanical systems, the elevator, windows and glass and any other
portion of the Premises which are not specifically the obligation
of the Landlord set forth above. During the period of tenancy,
Tenant shall, at its expense, engage AMI Mechanical Systems to
inspect and maintain the HVAC system on a monthly basis; provided,
however, that Tenant may retain the services of an alternative
contractor to perform such inspections and maintenance subject to
Landlord's prior consent and approval, which approval shall not be
unreasonably withheld. Tenant shall provide Landlord with copies
of all inspection and service reports provided by AMI Mechanical
Systems, or its successor.
8.1.2.2 Upon the expiration or earlier termination
of this Lease, Tenant shall surrender the Leased Premises in a
condition of repair at least equal to the condition upon Xxxxxx's
taking possession thereof, ordinary wear and tear excepted, and
shall promptly remove or cause to be removed at Tenant's expense
from the Leased Premises any signs, notices, and displays placed by
Tenant.
8.1.2.3 Tenant agrees to repair any material
damage to the Leased Premises which is not normal wear and tear
caused by or in connection with the removal of any articles of
personal property, business or trade fixtures, machinery,
equipment, cabinetwork, furniture, movable partition or permanent
improvements or additions, including without limitation thereto,
repairing the floor and patching and painting the walls where
reasonably required by Landlord to Landlord's reasonable
satisfaction, all at Tenant's sole cost and expense. Tenant agrees
to refrain from any activity and not to remove or otherwise alter
the Leased Premises in any way to adversely affect or cause
revocation or modification of any historical designations or
violate any restrictions relating to historical structures. Should
Tenant directly or indirectly breach the provisions contained
herein, Tenant shall be liable to Landlord for all such damage
actually incurred.
8.1.2.4 Tenant shall do all acts required to
comply in all material respects with all applicable laws,
ordinances, regulations and rules of any public authority relating
to its maintenance and repair obligations as set forth herein.
8.2 Alterations and Additional Improvements. The following
provisions shall govern all alterations of and additional
improvements to the Leased Premises:
8.2.1 Subject to the provisions of Section 8.3 Tenant
is hereby granted the right to make any and all such alterations,
additions or improvements to the Leased Premises, so long as such
alterations, additions or improvements do not constitute a
structural alteration of the Leased Premises. Any alterations
having a cost in excess of $25,000 shall require the consent of
Landlord, which consent shall not be unreasonably withheld.
8.2.2 All permanent alterations, additions or
improvements shall, at the expiration or earlier termination of the
Lease, become the property of Landlord and remain upon and
surrendered with the Leased Premises.
8.2.3 All of those items comprising Tenant Finish,
together with all personal property, business and trade fixtures,
machinery and equipment, cabinetwork, furniture and movable
partitions owned by Tenant or installed by Tenant at its expense in
the Leased Premises, including, without limitation, gaming
machines, table games and related equipment, counters, screens,
cages, freestanding partitions and cabinets, and signage shall be
and remain the property of Tenant and may be removed by Tenant upon
expiration of the Lease Term or upon termination under Section
3.1.1 or any other provision hereof.
8.2.4 All alterations or improvements commenced by
Tenant shall be timely completed and promptly paid for by Tenant
within a reasonable time. All such alterations or improvements
shall be erected: (i) in a good and workmanlike manner strictly in
material compliance with all applicable laws; (ii) entirely on the
Leased Premises; (iii) without encroaching upon any easement, right
of way, or land of others, unless consented to by such owner; (iv)
so as not to violate any applicable use, height, setback or other
applicable restriction; (v) without permitting any mechanic's lien
to attach to the Leased Premises, subject to the provisions
allowing a contest of the validity of any such lien. Any such new
improvements to the Leased Premises shall automatically be a part
of the Leased Premises and shall be subject to the additional
covenants contained in Section 8.3.
8.3 Construction on Leased Premises. Prior to the
commencement of any construction or renovation on the Leased
Premises which is reasonably anticipated to cost in excess of
Twenty-Five Thousand Dollars ($25,000.00), Tenant shall provide
written notice to Landlord who shall concurrently be provided with:
8.3.1 A complete set of the plans and specifications
setting forth the proposed improvements.
8.3.2 A proposed construction time schedule setting
forth the anticipated time of completion.
8.3.3 A proposed construction budget outlining the
anticipated costs for such improvements.
8.3.4 Reasonable assurance that the anticipated costs
will be paid when due. Such reasonable assurance may be any of the
following: proof that such funds are available to Tenant in an
account established or reserved for such construction, proof that
a lender has committed to advance such construction funds, proof
that Tenant possesses a completion bond for the improvements, or
other proof reasonably acceptable to Landlord.
Upon receipt of such items, Landlord shall have the right
to object only if such items do not comply with this Section 8.3 or
if Landlord reasonably believes that the construction budget is not
adequate to complete the proposed improvements. Landlord shall
have no approval rights with respect to the nature of the
improvements. Any objection from Landlord must be in writing and
must specifically outline the objections and the manner in which
such objections may be cured. If Landlord objects to the budgeted
amount, such objection may be cured by providing Landlord with a
copy of a final accepted bid in the appropriate amount. If
Landlord has not objected within five (5) business days after
receipt of the above items, Landlord shall be deemed to have no
objection. It is specifically understood that the provisions of
this Section 8.3 only to improvements costing in excess of Twenty-
Five Thousand Dollars ($25,000.00) and that Landlord shall have no
right to obtain the above items with respect to other improvements.
8.4 Builders' Risk Insurance. During the period of
installation of Tenant Finish and of any subsequent renovation of
the Leased Premises, the Tenant shall keep or cause to be kept, in
full force and effect and continuously maintain, insurance policies
in builders' risk form or fire and extended coverage, or some
combination of the two, which will provide coverage in an amount
not less than the replacement cost of the Leased Premises, with a
clause naming Landlord as an insured. All insurance policies shall
contain, if available, a provision that cancellation of said
policies may not occur without ten (10) days prior written notice
to the Landlord.
9. GAMING AND OTHER PROVISIONS
9.1 Licensing. Landlord acknowledges and agrees that Xxxxxx
intends to utilize the Leased Premises for the operation of a
limited gaming under Colorado Revised Statutes 12-47.1-101, et seq.
Tenant shall be responsible for obtaining all licenses for such
operation. However, in accordance with the limited gaming statutes
and regulations, Landlord may be required to obtain certain
licenses, and will, in any event, be required to submit certain
information and applications in connection with Tenant's
application and operation. Landlord agrees to submit all
applications and provide all requested information, financial or
otherwise, and to use its best efforts to assist Tenant in
obtaining any such necessary licenses for the operation of limited
gaming and for liquor licenses (such approvals being referred to
herein as the "Approvals"), and shall otherwise fully cooperate
with Tenant and any governmental authorities (the "Authorities") in
connection with any approval or permit applications of Landlord or
Tenant, which shall include, without limitation, provision of such
information, books and records as may be requested by such
Authorities and compliance with all orders and requirements of such
Authorities.
9.2 Failure to Obtain Approvals. This Lease may be
terminated by Tenant without liability upon thirty (30) days'
written notice in the event Tenant fails to obtain the Licenses and
other administrative approvals by August 1, 1999.
10. ENTRY BY LANDLORD. Landlord reserves and shall, during normal
business hours, have the right to enter the Leased Premises to
inspect the same, except for any gaming security areas, upon
reasonable notice to Tenant.
11. LIENS. Tenant shall keep the Leased Premises free from any
liens arising out of work performed, materials furnished, or
obligations incurred by Tenant and shall indemnify, hold harmless
and defend Landlord from any liens and encumbrances arising out of
any work performed or materials furnished by or at the direction of
Tenant. In the event that Tenant shall not, within forty-five (45)
days following the imposition of any such lien, cause such lien to
be released of record by payment or posting of a proper bond or
other means, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but no obligation, to cause
the same to be released by such means as Landlord shall deem
proper, including payment of the claim giving rise to such lien.
Notwithstanding the above, Tenant may, in good faith, contest any
such liens or claims of lien provided that Tenant shall have
deposited with an escrow agent reasonably acceptable to Landlord,
an amount sufficient to satisfy such lien in the event Tenant is
unsuccessful in such contest, or otherwise secure payment thereof
to the reasonable satisfaction of Landlord. In the event of such
contest, Landlord shall not pay the lien unless Landlord is
required to pay the same in order to avoid immediate forfeiture of
the Leased Premises. Landlord shall have the right at all times to
post and keep posted on the Leased Premises any notices permitted
or required by law, or which Landlord shall deem proper, for the
protection of Landlord and the Leased Premises, and any other party
having an interest therein, from mechanics' and materialmens'
liens, and Tenant shall give to Landlord at least ten (10) business
days prior written notice of the expected date of commencement of
any work relating to structural alterations to the Leased Premises
or any work of the nature described in Section 7.3.
12. INDEMNIFICATION
12.1 Licensing.
12.1.1 Except with respect to Pollutants existing as
of the date of the execution of this Lease and defects in the
Landlord's Improvements, Tenant shall indemnify and hold Landlord
harmless from and defend Landlord against any and all claims of
liability for any injury or damage to any person whatsoever
occurring in, or about the Leased Premises or any part thereof
during the term of the Lease, unless caused by the negligence or
willful misconduct of Landlord. Tenant shall further indemnify and
hold Landlord harmless from and against any and all liabilities and
claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any act or negligence of Tenant, or any of
its agents, contractors, employees, and from and against all costs,
attorney's fees, expenses and liabilities incurred in the defense
of any such claim or any action or proceeding brought thereon.
Except as to Pollutants existing as of the date of this Lease or
defects in the Landlord's Improvements, Tenant, as a material part
of the consideration to Landlord, hereby assumes all other risk of
damage to property or injury to persons in, upon or about the
Leased Premises from any cause and Tenant hereby waives all claims
in respect thereof against Landlord.
12.1.2 Landlord shall indemnify and hold Tenant
harmless from and defend Tenant against any and all claims of
liability for any injury or damage to any person whatsoever
occurring in, or about the Leased Premises or any part thereof
prior to the commencement of the Lease Term, or the earlier date on
which possession of the Premises is received by Tenant, unless
caused by the gross negligence or willful misconduct of Tenant.
Landlord shall further indemnify and hold Tenant harmless from and
against any and all liabilities and claims arising from any breach
or default in the performance of any obligation on Landlord's part
to be performed under the terms of this Lease, or arising from any
act or negligence of Landlord, or any of Landlord's agents,
contractors, employees and from and against all costs, attorney's
fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon.
12.2 Pollutants.
12.2.1 Tenant covenants and agrees with Landlord that
during this Lease, all Pollutants, which may be used by any person
for any purpose upon the Leased Premises shall be used or stored
thereon only in a safe, approved manner, in material accordance
with all industrial standards and all laws, regulations and
requirements for such storage promulgated by any governmental
authority, that the Leased Premises will not be used for the
principal purpose of storing any such substances, and that no such
storage or use will otherwise be allowed on the Leased Premises
which will cause or which will increase the likelihood of causing
the release of such substances on the Leased Premises.
12.2.2 Tenant will promptly notify Landlord as soon as
Xxxxxx knows or suspects that a Pollutant has been released on the
Leased Premises.
12.2.3 Tenant shall indemnify and hold Landlord
harmless of and from all loss, costs (including reasonable
attorney's fees), liability and damage whatsoever that Landlord may
be subjected to by reason of any material violation by Tenant or
any of the Environmental Laws which occurs upon the Leased
Premises, or by reason of the imposition of any governmental lien,
action, position, demand or proceeding, (whether civil, criminal or
administrative) for the recovery of environmental clean-up costs
expended by reason of such violation.
12.2.4 The above indemnity by Xxxxxx relating to
Pollutants shall not relate to any Pollutant which existed on the
Leased Premises prior to the commencement of the Lease Term, or the
earlier date on which possession of the Premises is received by
Xxxxxx, unless such Pollutant was introduced to the Leased Premises
by Xxxxxx.
12.2.5 Except for any violations caused by Tenant,
Landlord covenants and agrees that at the time of commencement of
the Lease Term and continuing during the Lease Term, Landlord shall
maintain those portions of the Leased Premises described in Section
8.1.1 in accordance with all federal, state and local Environmental
Laws, and not to cause, suffer or permit any damage or impairment
to the health, safety or comfort of any person or to the
environment on the Leased Premises, including, but not limited to,
damage or threatened damage to the soil surface or groundwater
resources or any condition constituting a nuisance or causing a
violation of or resulting in liability under any state, federal or
local law, regulation or ordinance. The foregoing obligations of
Landlord shall hereinafter collectively be referred to as the
"Environmental Obligations." Landlord agrees, promptly to remedy
and correct any such violation of any Environmental Obligation
pursuant to any final order of the appropriate administrative
agency or, non-appealable decree of a court of proper jurisdiction.
Landlord covenants and agrees to protect, indemnify and hold Tenant
harmless from and against any and all liability, obligations,
claims, inducing administrative claim or claims for injunctive
relief, loss, cost, damage, expense or liability, including,
without limitation, any liability arising under the Environmental
Laws, plus reasonable attorneys' fees, incurred by or asserted
against Tenant resulting from any failure to comply with the
provisions of this Section 12.2. Notwithstanding the above Section
12.2.5, the cost of any cleanup obligation resulting from
activities or events occurring during the Lease Term shall be
shared fifty percent (50%) by Tenant, unless such cost exceeds One
Hundred Thousand Dollars ($100,000.00), in which event, Tenant may
elect to terminate this Lease and not pay any cleanup costs which
are not due to Tenant's acts.
12.2.6 Landlord represents and warrants that, to the
best of its knowledge, there are no hazardous substances present on
the Premises. Furthermore, should Tenant be required to close its
business operations during the removal or neutralization of
hazardous substances by Landlord, all rent and related charges
shall be abated until such time as Tenant can safely resume normal
business operations.
12.3 Exemption of Landlord From Liability. Landlord shall not
be liable for injury or damage which may hereafter be sustained by
the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers, or any other person in or about
the Leased Premises caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or
into any part of the Leased Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures
of the same, unless caused by the negligence of Landlord.
13. INSURANCE
13.1 Coverage. In addition to any other insurance coverages
required by the provisions of this Lease, Tenant shall at all times
during the Lease Term, and at its own cost and expense procure and
continue in force the following insurance coverage:
13.1.1 Bodily Injury and Liability Insurance with a
combined single limit for Bodily Injury and liability, of no less
than Two Million Dollars ($2,000,000.00).
13.1.2 Liquor Liability Insurance in the amount of One
Hundred Fifty Thousand Dollars ($150,000.00).
13.1.3 Fire and Extended Coverage Insurance including
vandalism and malicious mischief coverage, in an amount equal to
the full replacement value of all building improvements, fixtures
and other improvements to or upon the Leased Premises.
13.1.4 In event of loss, Tenant will give immediate
notice by mail to Landlord, who may make proof of loss if not made
promptly by Xxxxxx. Each insurance company concerned shall and is
hereby authorized and directed to make payment for such loss
directly to all insureds and additional insureds.
13.2 Contractor's Insurance. Landlord and Tenant shall
require any contractor whom they hire to perform the work on the
Leased Premises to carry and maintain a nondeductible:
13.2.1 Comprehensive general Liability Insurance,
including, but not limited to, contractor's liability coverage,
contractual liability coverage, completed operations coverage,
broad form property damage endorsement and contractor's protective
liability coverage, of not less than Two Million Dollars
($2,000,000.00) with respect to personal injury or death, and Two
Million Dollars ($2,000,000.00) with respect to property damage;
and
13.2.2 Workmen's compensation or similar insurance in
form and amounts required by law.
13.3 Insurance Policies. The aforementioned minimum limits
of policies shall in no event limit the liability of Tenant
hereunder. Said insurance shall be with companies having a rating
of not less than B in "Best's Insurance Guide" and licensed to sell
insurance in the State of Colorado. Tenant shall furnish from the
insurance companies or cause the insurance companies to furnish
certificates of coverage; and all such policies shall name the
Landlord as a co-insured. No such policy shall be cancelable or
subject to reduction of coverage or other modification or
cancellation except after ten (10) days' prior written notice to
Landlord and Landlord's Lender by the insurer. All such policies
shall be written as primary policies, not contributing with and not
in excess of the coverage which Landlord may carry. Tenant shall,
at least twenty (20) days prior to the expiration of such policies,
furnish Landlord with renewals thereof or binders for renewed
coverage. Tenant agrees that if Xxxxxx does not take out and
maintain such insurance, Landlord may (but shall not be required
to) procure said insurance on Tenant's behalf and charge Tenant the
premiums. Tenant shall have the right to provide such insurance
coverage pursuant to blanket policies obtained by Tenant as
required by this Lease.
13.4 Waiver of Subrogation. Landlord and Tenant each hereby
waive any and all rights of recovery against the other or against
the officers, employees, agents and representatives of the other,
on account of any loss or damage arising from any cause covered by
any insurance required to be carried by each of them pursuant to
Section 12.1 or any other insurance actually carried by each of
them, regardless of cause or origin, including the negligence of
Landlord or Tenant or their respective agents, officers, and
employees. Landlord and Tenant shall cause their respective
insurers to issue appropriate waiver of subrogation rights
endorsements to all policies carried by each of them and such
endorsements shall be immediately delivered to the other.
14. DAMAGES OR DESTRUCTION
14.1 Landlord's Obligation to Rebuild.
14.1.1 If all or any part of the Leased Premises is
damaged or destroyed by fire, the elements or other casualty, then
Landlord shall, promptly and diligently, to the extent of insurance
proceeds, repair the damage and restore the Leased Premises. If
the insurance proceeds are insufficient to repair and restore the
Leased Premises, Landlord shall remain obligated to perform the
work, but Landlord and Tenant shall split equally any cost in
excess of the insurance proceeds.
14.1.2 Landlord shall not have any liability or
obligation for replacement, repair or restoration of any of
Tenant's trade fixtures or personal property located in or at the
Leased Premises. Tenant shall re-fixture and restore the Leased
Premises upon Landlord's completion of work.
14.2 Rent Adjustment. If Tenant is deprived of the use of all
or any portion of the Leased Premises by reason of such damage or
destruction or the repair thereof, then the Rent and other charges
payable hereunder shall be abated (during such period Tenant is not
open for business) or proportionately reduced (during such period
as Tenant is open for business but is deprived of the use of any
portion of the Lease Premises) according to the extent of the
interference with Xxxxxx's use thereof. It is understood and
agreed that Xxxxxx shall have twenty (20) days after the date
Landlord notifies Tenant in writing that all repairs and
restoration are completed within which to reopen the Leased
Premises and that Tenant shall have no obligation to pay any Base
Rent or any Percentage Rent or other charges during such twenty
(20) day period.
14.3 Termination. Notwithstanding anything contained in this
Section 14 to the contrary, if Xxxxxxxx fails to diligently pursue
in good faith such repair and restoration, then Tenant shall give
Landlord notice of its belief that Landlord is not diligently
pursuing the repair and restoration and Landlord shall have thirty
(30) days to begin or resume the repair and restoration. Tenant
shall not be required to give more than one such notice for any
specific repair or restoration required to be performed by
Landlord. If Landlord fails to so begin or resume the repair and
restoration within the time period, Tenant may perform the repairs
or restorations and offset the expense of the work against the next
Rent due.
15. CONDEMNATION
15.1 Taking. In the event of condemnation by eminent domain
or similar law, including a sale in lieu thereof to an authority or
other entity having the power of eminent domain (a "Taking"), which
results in a taking of (i) more than twenty-five percent (25%) of
the Leased Premises, or (ii) materially adversely affects ingress
or egress to the Leased Premises, then Tenant may terminate this
Lease by giving notice to Landlord not more than forty-five (45)
days after the later of the date on which title vests in the
condemning authority or the date Tenant receives notice of said
vesting.
15.2 Restoration and Rent Adjustment. In the event of a
Taking of a portion of the Leased Premises, if this Lease is not
terminated by Tenant pursuant to Section 15.1, Landlord at its sole
cost and expense, shall promptly restore the Leased Premises as
nearly as practicable to a complete unit of like quality and
character as existed prior to the partial Taking. If a portion of
the Leased Premises is Taken, then from and after the date on which
title vests in the condemning authority, the Base Rental payable
hereunder shall be equitably reduced in proportion to the area of
the Leased Premises Taken.
15.3 Vacation. If this Lease is terminated pursuant to this
Section 15, then any rent and other charges paid in advance shall
be refunded to Tenant and Tenant shall have an additional thirty
(30) days, rent free within which to remove its property from the
Leased Premises. In the event of any condemnation or Taking or sale
as outlined in this Section 15, the entire amount of the award or
compensation paid for such condemnation or taking shall belong to
and be the property of Landlord except for any portion thereof
payable to Tenant. Notwithstanding the above, Xxxxxx shall have
the right to pursue such claims as may be separately awarded or
recoverable by Tenant on account of any and all damage to Tenant's
business by reason of condemnation and for or on account of any
cost or loss to which Xxxxxx might be put in moving Tenant's
merchandise, trade fixtures, furnishings and other personal
property, or for any other damages compensable separately to Tenant
that does not reduce Landlord's award.
16. ASSIGNMENT OR SUBLETTING
16.1 Assignment of Lease. Tenant shall have the right to
assign, sublease or transfer its interest in this Lease, without
the consent of the Landlord to a Close Affiliate of the Tenant.
The Tenant shall also have the right to assign its rights under
this Lease to any successor to or assignee of the Tenant resulting
from any merger, consolidation or reorganization of the Tenant, to
an assignee that acquires all or substantially all of the business
and assets or stock of the Tenant or to assign or sublease to any
other person, provided that in each case the successor, assignee or
sublessee, in the reasonable judgment of the Landlord, (i) is
financially capable of performing the Tenant's obligations under
this Lease, (ii) is of good character and business reputation, and
(iii) has received a gaming license from the State of Colorado for
the Leased Premises. At least twenty (20) days prior to an
assignment or sublease by Tenant of its interest in this Lease
pursuant to and as permitted by this section, Tenant shall consult
with the Landlord about such assignment or sublease and provide
Landlord with all reasonably requested information about the
Tenant's proposed successor or assignee. In any event, such
assignments or subleases shall be subject to proper approvals by
the Division of Gaming and the State Liquor Enforcement Division.
16.2 Assumption and Release. Any permitted assignee or
successor of the Tenant shall assume all of the obligations of the
immediate predecessor assignor under this Lease and notice thereof
in the form of a duplicate original of such assignment shall be
delivered to the Landlord. Upon a valid assignment and the
assignee's or successor's assumption of the Tenant's obligations,
the assigning party shall not be relieved of its obligations
arising after the effective date of such assignment pursuant to
this Lease. Any purported assignment, subletting or delegation in
violation of Section 16.1 or this Section 15.2 shall be void and
shall be ineffective to vest any rights or obligations in the
purported assignee or successor.
17. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant
that upon Tenant paying rent and other monetary sums due under the
Lease, performing its covenants and conditions under the Lease,
Tenant shall and may peaceably and quietly have, hold and enjoy the
Leased Premises for the Lease Term, subject, however, to the terms
of this Lease. If Landlord does not comply with the terms of this
Section 17, all rental and other payment obligations then due and
thereafter arising shall xxxxx and not become due until such time
as Landlord shall have cured its default. In addition, all time
periods regarding increased payment of rent, the term of this
Lease, and exercise of any options granted hereunder shall be
likewise extended for the same amount of time.
18. EVENTS OF DEFAULTS: REMEDIES
18.1 Events of Default.
18.1.1 The occurrence of any of the following shall
constitute a material default and breach of the Lease by Tenant,
but only after Landlord has given written notice of such default to
Tenant, and Tenant has failed to cure such default within fifteen
(15) days (or such longer period provided for hereafter) after
receipt of such notice, such failure to cure shall then be an
"Event of Default." The Events of Default are as follows:
18.1.2 Any failure by Tenant to pay the rent or any
other monetary sums required to be paid hereunder when due,
including, without limitation, payments required in Section 5.5
hereof.
18.1.3 The abandonment of the Leased Premised by
Xxxxxx, or the cessation by Tenant of the operation of the Casino
for 30 or more consecutive days unless such cessation is due to
causes beyond the reasonable control of Tenant.
18.1.4 A failure by Tenant to observe and perform any
other non-monetary provision of this Lease to be observed or
performed by Tenant, where such failure continues for thirty (30)
days after written notice thereof by Landlord to Tenant, provided,
however, that if the nature of the default is such that the same
cannot reasonably be cured within said thirty (30) day period,
Tenant shall not be deemed to be in default if Tenant shall within
such period commence such cure and thereafter diligently prosecute
the same to completion.
18.1.5 The making by Tenant of any general assignment
or general arrangement for the benefit of creditors; the filing by
or against Tenant of a petition to have Tenant adjudged a bankrupt,
an order for debtor relief, or of a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the
case of a petition filed against Tenant, the same is dismissed
within sixty (60) days); the appointment of a trustee or receiver
to take possession of substantially all of Tenant's assets located
at the Leased Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within sixty (60) days; or the
attachment, and execution or other judicial seizure of
substantially all of Tenant's assets located at the Leased Premises
or of Tenant's interest in this Lease, where such seizure is not
discharged within sixty (60) days, excluding the actions of any
Leasehold Mortgagee of Tenant's. It is understood and agreed that
due to the nature of the Leased Premises and the personal nature of
Xxxxxx's business, that this provision is a material and critical
part of the consideration of this Lease.
18.2 Landlord's Remedies Upon an Event of Default.
18.2.1 At any time after occurrence of an Event of
Default, without limiting Landlord in the exercise of any right or
remedy at law or in equity which Landlord may have by reason of
such default or breach, Landlord at its sole subjective discretion
shall have the following options:
18.2.2 The Landlord shall have the right to declare
this Lease terminated. Said action shall not waive the Landlord's
claims against the Tenant, if any. Further, the Landlord may
pursue what legal action is necessary in order to regain the Leased
Premises, and the Tenant hereby agrees to vacate the same within
fifteen (15) days of notice from the Landlord.
18.2.3 Maintain this Lease in full force and effect
and recover the rent and other monetary charges without terminating
Tenant's obligations irrespective of whether Tenant shall have
abandoned the Leased premises. In the event Landlord elects not to
terminate the Lease, Landlord shall have the duty to attempt to
relet the Leased Premises at such rent and upon such conditions and
for the same or different term, conditions, amounts, etc., and to
do all acts necessary to maintain or preserve the Leased Premises
as Landlord deems reasonable and necessary without being deemed to
have elected to terminate the Lease, including removal of all
persons and property from the Leased Premises; such property may be
removed and stored in a public warehouse or elsewhere at the cost
of and for the account of Tenant, or have the property set out as
directed by Sheriff or Court. In the event any such re-letting
occurs, Xxxxxx's right to possession pursuant to this Lease shall
terminate within fifteen (15) days of notice of the new Tenant's
execution of a new lease or a written right to occupancy, if there
is none, then upon the new Tenant's taking possession of the Leased
Premises. Notwithstanding that Xxxxxxxx fails to elect to
terminate Xxxxxx's possession initially Landlord at any time during
the Lease Term may elect to terminate this Lease by virtue of such
previous default by Tenant which remains uncured.
18.2.4 Terminate Xxxxxx's right to possession by any
lawful means, in which case Xxxxxx's right to possession pursuant
to this Lease shall terminate and Tenant shall surrender possession
of the premises to Landlord within fifteen (15) days of written
notice. Landlord shall be entitled to recover from Tenant only
those damages incurred by Landlord by reason of Tenant's default,
including only the following: any amount necessary to compensate
Landlord for all the detriment proximately caused by Xxxxxx's
failure to perform its obligations under this Lease or which in the
ordinary course of events would be likely to result therefrom
including but not limited to the cost of preparing the Leased
Premises for reletting, brokerage fees and reasonable attorney fees
incurred in such breach and reletting.
18.3 Late Charges.
18.3.1 If any installment of rent or any other sums
due collectively from Tenant shall not be received by Landlord or
Landlord's designee within ten (10) days after such rent or other
sum be due, Tenant shall pay to Landlord a late charge of eight
percent (8%) with respect to such overdue amount.
18.3.2 The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Xxxxxx. Acceptance of such
late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount nor prevent
Landlord from exercising any of the other rights and remedies
granted hereunder.
18.4 Event of Default by Landlord. Landlord shall not have
caused an Event of Default unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in
no event later than thirty (30) days after receipt of written
notice by Tenant to Landlord and to Landlord's Lender, if any,
whose name and address shall have theretofore been furnished to
Tenant in writing, specifying wherein Landlord has failed to
perform such obligations; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are
required for performance (not including the payment of money), then
Landlord shall not Default if Landlord commences performance within
such thirty (30) day period and thereafter diligently prosecutes
the same to completion.
18.5 Tenant's Remedies. If Landlord fails to commence or
continue with diligence to cure any default, Tenant shall have all
rights and remedies available at law or in equity, including, but
not limited to, the right (but not the obligation) to cure such
default and receive upon demand from Landlord reimbursement of the
amount expended by Tenant in curing such default. If Landlord
fails to reimburse Tenant for such amount, Tenant may institute
proceedings in any court having jurisdiction over such controversy
for collection of such amount, together with reasonable attorneys'
fees and court costs incurred by Xxxxxx as a result of such
default, or deduct the amount expended by Tenant in curing such
default, together with attorneys' fees incurred as a result of
Landlord's default from rent and other charges payable under this
Lease until all such sums are fully recovered by Xxxxxx.
19. MISCELLANEOUS
19.1 Estoppel Certificate.
19.1.1 Both parties shall at any time upon not less
than ten (10) days' prior written notice from the other party
execute, acknowledge and deliver a statement in writing (i)
certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are
paid in advance, if any, (ii) acknowledging that there are not, to
such party's knowledge, any uncured defaults on the part of the
other party hereunder, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Leased Premises.
19.1.2 A failure to deliver such statement within such
time shall be conclusive upon the party required to deliver such
statement (i) that this Lease is in full force and effect, without
modification except as may be represented, and (ii) that there are
no uncured defaults in the other party's performance.
19.2 Transfer of Landlord's Interest. Landlord may not
transfer, or grant any option to acquire, all or any portion of its
interest in this Lease or its interest in the Premises or Property
at any time during the term of this Agreement.
19.3 Regulatory Issues Affecting Leased Premises. At the
request of Xxxxxx, and upon the consent of Landlord, which consent
shall not be unreasonably withheld, Landlord agrees to cooperate
with Tenant to grant rights and make agreements with all
governmental entities and adjoining property owners as may be
reasonably necessary for Tenant's maximum use of the Leased
Premises.
19.4 Captions; Attachments; Defined Terms.
19.4.1 The captions of the paragraphs of this Lease
are for convenience only and shall not be deemed to be relevant in
resolving any question of interpretation or construction of any
section of this Lease.
19.4.2 Exhibits attached hereto, and addendums and
schedules to this Lease, are deemed by attachment to constitute
part of this Lease and are incorporated herein.
19.5 Severability. If any term or provision of this Lease
shall, to any extent be determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this
Lease shall not be effected thereby, and each term and provision of
this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
19.6 Costs of Suit.
19.6.1 Should either party bring any action for any
relief against the other party, declaratory or otherwise, arising
out of this Lease, including any suit by Landlord for the recovery
of rent or other monies or possession of the Leased Premises, the
prevailing party shall be awarded their reasonable attorneys' fees
which shall be deemed to have accrued on the commencement of the
cause of action and shall be paid whether or not such action is
prosecuted to judgment.
19.6.2 Should Landlord, without fault on Landlord's
part, be made a party to any litigation instituted by Tenant or by
any third party against Tenant, the Leased Premises, or by or
against any person holding under or using the Leased Premises by
license of Tenant, except for violation of any Environmental Laws
not caused by the fault of Tenant, or for the foreclosure of any
lien for labor or material furnished to or for Tenant or any such
other person or otherwise arising out of or resulting from any
action or transaction of Tenant or of any such other person
(excluding any such lien or action caused by Landlord), Tenant
covenants to save and hold Landlord harmless from any judgment
rendered against Landlord or the Leased Premises or any part
thereof, and all costs and expenses including reasonable attorneys'
fees incurred by Landlord in or in connection with such matter
unless due to Landlord's actions or failure to act. The
appropriate tribunal or court shall decide whether the Landlord was
without fault prior to the enforcement of this Paragraph 16.6.2.
19.7 Time; Joint and Several Liability. Time is of the
essence of this Lease and each and every provision hereof, except
as to the conditions relating to the delivery of possession of the
Leased Premises to Tenant. All the terms, covenants and conditions
contained in this Lease to be performed by Tenant, if such party
shall consist of more than one person or organization, shall be
deemed to be joint and several, and all rights and remedies of the
parties shall be cumulative and nonexclusive of any other remedies
of the parties at law or in equity.
19.8 Binding Effect; Choice of Law. The parties hereto agree
that all provisions hereof are to be construed as both covenants
and conditions as though the words importing such covenants and
conditions were used in each separate paragraph hereof. Subject to
any provisions hereof restricting assignment or subletting by
Xxxxxx, all of the provisions hereof shall bind and inure to the
benefit of the parties hereto and their respective heirs, legal
representative, successors and assigns. This Lease shall be
governed by the laws of the State of Colorado.
19.9 Waiver. No covenant, term or condition or the breach
thereof shall be deemed waived, except by written consent of the
party against whom the waiver is claimed, and any waiver or the
breach of any covenant, term or condition shall not be deemed to be
a waiver of any preceding or succeeding breach of the same or any
other covenant, term or condition. Acceptance by Landlord of any
performance by Tenant after the time the same shall have become due
shall not constitute a waiver by Landlord of the breach or default
of any covenants, term or condition unless otherwise expressly
agreed to by Landlord in writing.
19.10 Surrender of Leased Premises. The voluntary or
other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing sublease or subtenancies,
or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
19.11 Holding Over. If Tenant remains in possession of
all or any part of the Leased Premises after the expiration of the
term hereof, including extensions, with or without the express or
implied consent of Landlord, such tenancy shall be from month to
month only, and not a renewal hereof or an extension for any
further term, and in such case, Base Rent and other monetary sums
due hereunder shall be payable in the amount and at the time
specified in this Lease, and such month to month tenancy shall be
subject to every other term, covenant and agreement contained
herein.
19.12 Covenants Running with the Land. All of the
covenants, conditions and restrictions set forth in this Lease are
intended to be and shall be construed as covenants running with the
land, binding upon and inuring to the benefit of the parties
hereto, their successors and assigns.
19.13 Force Majeure. If either party to this Lease shall
be delayed or hindered in or prevented from the performance of any
non-monetary obligation or act required under this Lease by reason
of materially adverse weather conditions, strikes, lockouts, labor
troubles, failure of power, riots, insurrection, war, fire,
casualty, or other acts of God or other reasons of a like nature
beyond the reasonable control of the party delayed in performing
works or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the
delay, and the period of the performance of any such act shall be
extended for a period equivalent to the period of such delay,
except as otherwise specifically provided herein to the contrary.
The provisions of this Section 19.13 shall not be applicable to
delays resulting from the inability of a party to obtain financing
or to proceed with its obligations under this Lease because of a
lack of funds.
19.14 Liquor Licenses. If Tenant applies for a liquor
license, Xxxxxxxx agrees not to object to said application and
agrees to cooperate with the licensing procedures.
19.15 Memorandum of Lease. Landlord and Tenant shall
execute, acknowledge and record at Xxxxxx's sole cost and expense,
a Memorandum of Lease in a form attached hereto as "Exhibit C"
specifying therein the commencement date and termination date of
the term of the Lease, as well as any restraints or alienation
contained herein, if permitted by the Master Leases.
19.16 No Broker. Xxxxxxxx and Xxxxxx agree to hold each
other harmless against any and all claims by any other person for
brokerage commissions arising out of any conversation, negotiations
or other dealings held by the other party with any broker regarding
this Lease.
19.17 Notices. Every notice, demand, request,
designation, consent, approval or other document or instrument
required or permitted to be served hereunder shall be in writing,
and shall be hand-delivered or sent by registered or certified
United States mail postage prepaid, return receipt requested,
addressed to the parties hereto as their addresses set forth below.
Either party may change the place for serving of such papers upon
it, or provide for the delivery of not more than two (2) additional
copies, by giving the other party at least ten (10) days' prior
notice to such effect. Copies of any notices to Tenant shall be
delivered or sent to:
Global Central Corporation
ATTN: Xxxxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
All notices shall be deemed to have been duly served on the day of
receipt, except that if the first attempt at mailing is refused or
returned as non-deliverable, the note shall be deemed received
three (3) days after the second mailing attempt.
19.18 Representations. Each party acknowledges and agrees
that it has not relied upon any statements, representation,
agreements or warranties except such as are expressed in this
Lease.
20. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
20.1 "Environmental Laws" means all federal, state and local
environmental, health and safety statutes, ordinances, rules and
regulations, as may from time to time be in effect, including but
not limited to federal laws such as the Comprehensive Environmental
Response, Compensation and Liability Act ("Superfund" or "CERCLA"),
42 U.S.C. Section 9602 et seq. ; the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), 42 U.S.C. Section
9601(20)(D); the Resource Conservation and Recovery Act (the "Solid
Waste Disposal Act" or "RCRA"), 42 X.XX. Section 6901 et seq.; the
Federal Water Pollution Control Act, as amended by the Clean Water
Act Amendments of 1977 ("CWA"), 33 U.S.C. Section 1251 et seq.; the
Clean Air Act of 1966, as amended ("CAA"), 42 U.S.C. Section 7401
et seq.; the Federal Insecticide, Fungicide and Rodenticide Act
("FIFRA"), 7 U.S.C. Section 136 et seq.; the Occupational Safety
and Health Act ("OSHA"), 29 U.S.C. Section 651 et seq.; the Safe
Drinking Water Act ("SDWA"), 42 U.S.C. Section 300f et seq.; the
Toxic Substances Control Act ("ECA"), 15 U.S.C. Section 2601 et
seq.; and any and all State of Colorado environmental, health and
safety statutes, ordinances, rules and regulations as may from time
to time be in effect.
20.2 "Pollutants" means any "hazardous substance" as that term
is defined in CERCLA; any "hazardous waste" as that term is defined
in RCRA, and any "hazardous material" as that term is defined in
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq., as amended (including as those terms are further defined,
construed, or otherwise used in rules, regulations or standards
issued pursuant to the Environmental Laws); and including any
petroleum product or by-product, flammable or explosive material,
radioactive material, asbestos, PCBS, dioxins, heavy metals, and
radon gas.
20.3 "Close Affiliate" means, when used with respect to any
entity:
20.3.1 Any entity who directly or indirectly
beneficially owns or controls more than fifty percent (50%) (by
voting power as to all matters) of all classes of the outstanding
voting equity interests of the entity in question.
20.3.2 Any entity, more than fifty percent (50%) (by
voting power as to all matters) of all classes of the outstanding
voting equity interests of which are directly or indirectly
beneficially owned or controlled by the entity in question; or
20.3.3 Any entity who, along with the entity in
question, is beneficially owned or controlled, directly or
indirectly, by individual tenants or a common parent entity, which
parent entity directly or indirectly beneficially owns or controls
more than fifty percent (50%) (by voting power as to all matters)
of all classes of the outstanding voting equity interest of such
individuals or each such entity.
21. OPTION TO PURCHASE
21.1 Option.
21.1.1 At any time following the Commencement Date and
prior to the termination of this Agreement, the Tenant shall have
the exclusive right and option, at its sole election, to purchase
from the Landlord, and Landlord agrees to sell to Tenant upon
exercise of such option, the Premises and the Property in
accordance with the terms hereof. In the event Tenant elects to
exercise such option, Tenant shall serve written notice upon
Landlord that it intends to purchase the Premises and the Property
in accordance with the following terms and conditions:
21.1.1.1 The purchase price for the Premises and
the Property shall be the aggregate sum of $1,400,000 (the
"Purchase Price").
21.1.1.2 The Purchase Price shall be payable by
Tenant delivering to Landlord the sum of $130,000 in cash at the
time of closing, less all Post-Option Base Rent up to a maximum of
four (4) months' Base Rent paid by Tenant to Landlord. In
addition, the $20,000 deposit held in escrow in accordance with the
provisions of this Agreement shall also be credited towards and
applied against the Purchase Price at the closing.
21.1.1.3 The balance of the Purchase Price shall be
evidence by Xxxxxx's promissory note in the principal amount of
$1,250,000 (the "Note") which, together with interest at the rate
of six percent (6%) per annum, shall be payable in equal monthly
installments of principal and interest amortized over a term of
nine (9) years. Tenant's obligation to repay sums due and owing
under the Note shall be secured by a Deed of Trust covering the
Premises and a Security Agreement and Financing Statement covering
the Property.
21.2 Purchase Contract Upon receipt of Tenant's notice
pursuant to the provisions of section 20.1.1 above, Landlord and
Tenant shall execute a Real Estate Purchase and Sale Contract (the
"Purchase Contract") substantially in the form of Exhibit 21.2
hereto. Such Purchase Contract shall be executed and delivered
within twenty (20) days following the delivery of such notice to
Landlord. The parties agree to schedule a closing within the
closing period established in the Purchase Contract. Landlord
shall have the right to defer closing until a date not later than
May 31, 2001; provided, however, that all Post-Option Base Rent
paid by Tenant to Landlord shall be applied towards and credited
against the closing cash portion of the purchase price. No
transfer shall take place unless and until the approval of the
Colorado Division of Gaming or the Colorado Limited Gaming Control
Commission has first been obtained.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this
Lease the date and year first above written:
LANDLORD: TENANT:
U.S. Bank, N.A., Global Central Corporation,
a _________ corporation a Colorado corporation
By: By:
Name/Title: Name/Title:
Date: Date:
STATE OF COLORADO )
) ss.
COUNTY OF __________)
The foregoing instrument was acknowledged before me this ____day of
May, 1999, by , a (title) of U.S. Bank, N.A.,
a _____________ corporation, as Landlord.
WITNESS my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this ____day of
May, 1999, by Xxxxxxx X. Xxxxxxxxxxx, President of Global Central
Corporation, a Colorado corporation, as Tenant.
WITNESS my hand and official seal.
My commission expires:
Notary Public
EXHIBIT "21.2"
REAL ESTATE PURCHASE AND SALE CONTRACT
THIS CONTRACT is made this day of , 2000 by
and between Global Central Corporation, a Colorado corporation,
and/or assigns ("Buyer") and ("Seller").
1. The Property. Subject to the terms and conditions
hereinafter set forth, Xxxxx agrees to purchase and Xxxxxx agrees
to sell and convey the real property, building and personal
property (collectively the "Property") located in the County of
Xxxxxx, State of Colorado, having the street address of 000 xxx 000
Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000, and more particularly
described as follows:
Block , Lots and Block , Lots ,
Together with (i) all easements, rights-of-
way, and vacated roads, streets and alleys,
adjacent or appurtenant to the Property; (ii)
all buildings, fixtures and improvements on
the Property (the "Improvements"); (iii) all
of Seller's right, title and interest in and
to all deposits, licenses, permits, contract
rights, warranties and guarantees, and all
other intangible personal property associated
with or related to the Property or the
Improvements; (iv) all equipment, machinery,
supplies, signages, fixtures and any other
tangible personal property owned by Seller and
associated with, related to, located upon or
used at the Property or the Improvements (the
"Equipment").
2. Purchase Price. The purchase price for the Property
shall be One Million Four Hundred Thousand Dollars ($1,400,000).
The purchase price shall be paid to Seller by Xxxxx as follows:
x. Xxxxxxx Money Deposit. The sum of Twenty Thousand
Dollars ($20,000) in the form of Buyer's corporate check, as
xxxxxxx money deposit and part payment of the Purchase Price,
payable to and held by the title company identified in Section 4
below ("Title Company"). Title Company shall hold the xxxxxxx
money deposit in its trust account on behalf of both Seller and
Xxxxx, subject to the provisions of this Contract. Title Company
is authorized to deliver the xxxxxxx money deposit to the Closing
Agent, if any, at or before closing.
The balance of the Purchase Price in the amount of One
Million Three Hundred Eighty Thousand Dollars ($1,380,000) shall be
paid as follows:
b. Cash at Closing. One Hundred Thirty Thousand Dollars
($130,000) to be delivered by Buyer in certified funds at Closing.
c. Seller Financing. The balance of One Million Two
Hundred Fifty Thousand Dollars ($1,250,000) shall be paid and
evidenced by Xxxxx's promissory note (the "Note") in a form
mutually agreeable to both Buyer and Seller, to be secured by a
first deed of trust (the "First Deed of Trust") and UCC-1 Security
Agreement and Financing Statement ("Security Agreement") in a form
mutually agreeable to both Buyer and Seller. The Note and First
Deed of Trust shall contain (among others) the following
provisions:
(1) The Note shall be amortized on the basis of
nine (9) years, payable in monthly installments of principal and
interest at the rate of six percent (6%) per annum. Payments shall
commence the first day of the month following the Closing Date, and
thereafter shall be due on the 1st day of each succeeding month.
If not sooner paid, the balance of principal and accrued interest
shall be due and payable nine (9) years from the Closing Date;
(2) If any payment is not received within fifteen
(15) calendar days after its due date, a late charge of five
percent (5%) of such monthly payment shall be due. Interest on
lender disbursements under the deed of trust shall be eight percent
(8%) per annum. Default interest rate shall be twelve percent
(12%) per annum;
(3) There shall be no pre-payment penalty; and
(4) The Note, First Deed of Trust, Security
Agreement and Financing Statement shall provide that the obligation
of the Buyer with respect to the indebtedness secured thereby shall
be limited wholly and solely to the value of the Property
encumbered thereby at the time of default, without recourse against
the Buyer for any deficiency.
d. Allocation. For all purposes, Seller and Buyer
irrevocably agree that the purchase price for the Property shall be
allocated as follows:
Real Estate $
Equipment
$1,400,000
3. Survey. Within thirty (30) days of the date hereof, or
such later date as the parties shall agree, Seller, at its expense,
shall obtain and furnish to Buyer a current boundary and
improvement survey plat of the Property, certified by a licensed
Colorado surveyor, showing thereon the correct legal description,
property dimensions, square footage, roadways, easements, rights-
of-way, fences, walls and encroachments, if any, recorded or in
place, and all improvements, with the dimensions thereof.
4. Title Evidence.
a. Property and Improvements. At Seller's expense, a
current commitment for an owner's title insurance policy, issued by
Clear Creek Xxxxxx Abstract and Title Corp. (the "Title Company")
in an amount equal to the purchase price, and certificates of taxes
due issued by the Treasurer of the County of Xxxxxx showing the
current status of all taxes and assessments due or accruing, shall
be delivered by Seller to Buyer on or before , 2000
("Title Deadline"). Buyer may require of Seller that copies of
instruments (or abstracts of instruments) listed in the
schedule of exceptions ("Exceptions") in the title insurance
commitment also be furnished to Buyer at Seller's expense. The
title insurance commitment, together with any copies or abstracts
of instruments furnished pursuant to this Section 4, constitute the
title documents ("Title Documents"). Buyer, or Xxxxx's designee,
must request Seller, in writing, to furnish copies or abstracts of
instruments listed in the schedule of exceptions no later than ten
(10) calendar days after the Title Deadline. Seller will pay the
premium at closing and have the title insurance policy delivered to
Buyer as soon as practicable after Closing. Said policy shall be
issued on the current ALTA Owner's Policy form, with standard
printed exceptions, 1, 2, 3 and 4 deleted, except for matters of
survey approved by Xxxxx, with "gap" protection, and with no other
exceptions other than those permitted by Section 7 below.
5. Approval of Title Evidence and Survey.
a. Title Review. Buyer shall examine the Survey, Title
Documents, and the certificates of taxes due (the "Title Evidence")
furnished by Xxxxxx. Written notice by Xxxxx of unmerchantability
of title or of any other unsatisfactory title condition shown by
the Title Evidence shall be signed by or on behalf of Buyer and
given to Seller on or before , 2000, or within five
(5) calendar days after receipt by Buyer of any Title Document(s)
or endorsement(s) adding new Exception(s) to the title
commitment together with a copy of the Title Document adding new
Exception(s) to title. Upon receipt of notice of defects from
Buyer, Seller may, by written notice to Buyer within ten (10) days,
elect to cure such defects or not to cure them. Unless Seller
elects to cure such defects, Buyer may, by written notice to Seller
at or before the Closing (a) elect to waive such defects and
proceed to close; or (b) terminate this Contract. In the event
that Xxxxx fails to give written notice of defects or of
termination within the times stated herein, Buyer shall be deemed
to have accepted and approved the status of the title as disclosed
by the Title Evidence. If Buyer gives notice of termination
pursuant to this Section 5, this Contract shall terminate, the
Title Company shall promptly return to Buyer its xxxxxxx money
deposit, and both parties shall be released from all further
obligations hereunder.
b. Matters Not Shown by the Public Records. Seller
shall deliver to Buyer, on or before the Title Deadline set forth
in Section 4, true copies of all lease(s), sub-lease(s) and
survey(s) in Seller's possession pertaining to the Property and
shall disclose to Buyer all easements, liens or other title matters
not shown by the public records of which Seller has actual
knowledge. Buyer shall have the right to inspect the Property to
determine if any third-party has any right in the Property not
shown by the public records (such as an unrecorded easement,
unrecorded lease, or boundary line discrepancy). Written notice of
any unsatisfactory condition(s) disclosed by Seller or revealed by
such inspections shall be signed by or on behalf of Buyer and given
to Seller on or before , 2000. If Seller does not
receive Xxxxx's notice by said date, Xxxxx accepts title subject
to such rights, if any, of third-parties of which Buyer has
actual knowledge.
c. Special Taxing Districts. In the event the Property
is located within a Special Taxing District and Buyer desires to
terminate this contract as a result, if written notice is given to
Seller on or before , 2000, this Contract shall then
terminate. If Seller does not receive Buyer's notice by the
date specified above, Xxxxx accepts the effect of the Property's
inclusion in such Special Taxing District(s) and waives the right
to so terminate.
6. Seller's Information. On or before the dates stated
below, Seller, at its expense, shall furnish the following
documentation ("Seller's Information") to Buyer:
a. On or before , 2000, Xxxxxx and
Xxxxx shall work together to obtain on Xxxxx's behalf and for its
benefit a phase one environmental audit ("Environmental Audit") of
the Property performed by licensed and qualified environmental
scientists/engineers acceptable to Buyer. Buyer shall pay the cost
of obtaining the Environmental Audit. In the alternative, Seller
may provide Buyer with a Phase I conducted within the past twelve
(12) months, together with the representation of warranty contained
in Paragraph 11(c).
b. Xxxxx's performance under this Contract shall be
contingent upon Xxxxx's approval of Seller's Information. If Buyer
is not satisfied with any item of Seller's Information, Buyer shall
so notify Seller, in writing, within fourteen (14) days of Buyer's
receipt of such item. Upon receipt of notice of defects from
Buyer, Seller may, by written notice to Buyer with ten (10) days,
elect to cure such defects or not to cure them. Unless Seller
elects to cure such defects, Buyer may, by written notice to Seller
at or before Closing (a) elect to waive such defects and proceed to
close; or (b) terminate this Contract. In the event that Xxxxx
fails to give written notice of defects or of termination within
the times stated herein, Buyer shall be deemed to have accepted and
approved the status of Seller's Information. If Buyer gives notice
of termination pursuant to this Section 6, this Contract shall
terminate, the Title Company shall promptly return to Buyer its
xxxxxxx money deposit, and both parties shall be released from all
further obligations hereunder.
7. Conveyance. Title to the Property shall be merchantable
in the Seller. Subject to payment or tender as above provided and
compliance with the other terms and conditions hereunder by Xxxxx,
Seller shall convey the Property and Improvements to Buyer by good
and sufficient Trustee's deed. All other portions of the Property
shall be conveyed to Buyer by assignment or other appropriate
instrument of conveyance executed by Seller. All conveyances shall
be free and clear of (a) all taxes and assessments, except general
property taxes accruing and not due and payable as of the date of
Closing; (b) the lien of all special improvements installed as of
the date of Closing, whether assessed or not; and (c) all other
liens, encumbrances, leases, easements, rights-of-way, reservations
and restrictions, except (i) zoning codes and regulations, (ii) the
title exceptions listed in the schedule of exceptions
("Exceptions") in the title insurance commitment described in
Section 4 above, and (iii) leases and unrecorded liens existing as
of the date of Closing, provided copies of said leases and/or liens
have been provided to, and approved by, Buyer in accordance with
the provisions of Section 5(b) above prior to the date of Closing.
The funds to be paid by Buyer to Seller pursuant to the
provisions of Section (c) above may be used by Seller to discharge
any liens encumbering the Property.
8. Adjustments. Real estate and personal property taxes for
the year of Closing, based upon the most recent levy and the most
recent assessment, prepaid rents, water, sewer and all other
utilities and charges shall be apportioned to the Date of Closing
and adjusted against or credited to the payment described in
Section 2(b) above. In the event demand is made by the treasurer
of the County of Xxxxxx for full payment of personal property taxes
for the year in which the Closing occurs, each of the parties
hereto shall pay its share thereof, apportioned as above provided,
in cash at Closing. Seller shall pay in full and save Buyer
harmless from any sales/use tax assessed as a result of the sale of
the personal property hereunder.
9. Closing.
a. Closing Date. Unless extended by the terms of this
Agreement or by mutual consent of the parties hereto, the Closing
of this transaction shall be held on or before
, 2000, at a time and location mutually agreeable to both Buyer and
Seller; provided, however, that Seller shall have the right to
defer the Closing Date until as late as May 31, 2001.
b. Seller's Deliveries. At the Closing, Seller shall
deliver the following:
(1) A Trustee's deed (the "Deed"), delivered to
Buyer in accordance with the provisions of Section 7 above; and
(2) A bill of sale conveying all Equipment and
other personal property located on the Property to Buyer; and
(3) An assignment of all guarantees or warranties
pertaining to the Property, if any, in Seller's possession, which
are assignable at no cost to Seller and do not require the approval
of any third party; and
(4) Seller shall execute, acknowledge and deliver,
at or subsequent to Closing, such other instruments, documents and
materials as the Title Company may reasonably request to vest title
to the Property in Buyer, including a standard form Seller's
affidavit.
c. Buyer's Deliveries. At the Closing, Xxxxx shall
deliver the following:
(1) The sum of One Hundred Thirty Thousand Dollars
($130,000) in certified funds payable to Seller; and
(2) An executed original of the Note and related
First Deed of Trust and Security Agreement and Financing Statement
in favor of Seller; and
(3) Any other documents, instruments or agreements
reasonably necessary to close the transaction as contemplated by
this Agreement.
10. Contingencies. This Contract and Xxxxx's performance
hereunder are contingent upon Xxxxx's satisfaction, in exercise of
its sole discretion, with each of the following conditions:
a. All defects in Title and Seller's Information, if
any, shall have been remedied to Buyer's satisfaction in accordance
with the provisions of Section 5 and 6 above; and
b. The Title Company shall be standing ready to issue
an ALTA Owner's Policy of Title Insurance insuring Xxxxx's interest
in the Property, dated the date of Closing in the amount of the
Purchase Price; and
c. The Board of Directors of Buyer shall have approved
and ratified this Agreement and shall have authorized the
appropriate officers of the Buyer to execute same and fully perform
its terms within twenty (20) days of the date of this Agreement;
and
d. The representations and warranties of Seller set
forth in this Agreement shall be true and correct in all material
respects as of the date of Closing; and
e. Seller shall have satisfied its obligations and
requirements under Section 9(b) above.
Each of the Contingencies set forth above must be
satisfied and removed on or before the date specified in each
respective Contingency ("Contingency Termination Date"). In the
event one or more of the Contingencies has not been satisfied and
removed by the relevant Contingency Termination Date, then, at
Buyer's election (i) this Contract shall terminate, the xxxxxxx
money deposit shall be returned to Buyer and both parties shall be
released from this Contract; or (ii) Buyer and/or Seller shall have
the option to continue their efforts to satisfy and remove the
remaining Contingencies; provided, however, that in the event Buyer
or Seller elects to continue their efforts to remove the remaining
Contingencies, either party may, at any time following the
Contingency Termination Date, and upon ten (10) days advance
written notice ("Contingency Termination Notice"), elect to
terminate this Contract. Upon receipt by either party of the other
party's Contingency Termination Notice, the party receiving the
Contingency Termination Notice shall have ten (10) days to remove
and/or waive all remaining Contingencies, and to close the
transactions contemplated by this Contract. In the event the party
receiving the Contingency Termination Notice is unable to
consummate the transactions contemplated by this Contract within
said ten (10) day period, this Contract shall terminate (unless the
tenth (10th) day falls on a weekend or legal holiday, in which case
the ten (10) day period shall be extended until the next business
day following the weekend or legal holiday), the xxxxxxx money
deposit shall be returned to the Buyer and both parties shall be
released from all further obligations under this Contract.
11. Possession; Inspection.
a. Time of Possession. Possession of the Property
shall be delivered to Buyer at the Closing.
b. Entry Prior to Closing. Prior to the Closing, Buyer
and its agents and employees shall be authorized to enter upon the
Property in order to inspect, appraise and survey the Property;
provided, however, that Buyer shall coordinate such inspection with
Seller, and provided further that at all times Buyer shall comply
with applicable laws; shall save and protect Seller harmless from
any and all liability on account of the actions of Buyer, its
agents or employees, upon the Property; shall cause no harm or
damage to the Property; and shall not allow any liens to be filed
against the Property as a result of such activities of Buyer, its
agents or employees.
12. Seller's Representations. In addition to its
representations and warranties elsewhere in this Contract, Seller
represents and warrants to Buyer that as of the date of its
execution of this Contract and on the date of Closing all of the
following statements are and will be true:
a. Casualty or Condemnation. To the best of Seller's
knowledge and belief there are no pending or threatened
condemnation proceedings, assessments or litigation of any kind
affecting the Property or any part thereof. In the event that,
prior to the Closing, a condemnation proceeding, assessment or
legal action affecting the Property or any part thereof shall be
commenced, levied or threatened, this Contract may be terminated at
the option of the Buyer upon notice to Seller, whereupon the
xxxxxxx money deposit shall be returned by the Title Company to the
Buyer and all parties shall be released herefrom. Should Buyer
elect or be obligated to carry out this Contract despite a taking,
Buyer shall be entitled to all of the condemnation proceeds
resulting from any such taking.
b. Defects. There is no condition known to Seller
existing with respect to the Property or its operation, or any part
thereof, which violates any law, rule, regulation, ordinance,
covenant, restriction, code, order, decree or ruling of the County
of Xxxxxx, the State of Colorado, the United States, or any agency
or court. Seller has not received notice, written or otherwise,
from any governmental, quasi-governmental or private agency or
party requiring or demanding the correction of any condition with
respect to the Property, or any part thereof, or the cessation of
any activities upon the Property.
c. Authority. Seller is the sole owner of the
Property, is duly authorized and empowered to execute and deliver
this Contract and the execution and delivery hereof will not cause
or constitute any breach of or default under any law, contract or
other agreement.
d. Taxes. There are no unpaid and due tax assessments
affecting the Property and shown on the Tax Certificate which will
not be fully paid, accounted for or adjusted at or prior to
Closing.
e. Valid Transfer. Seller represents and warrants to
Buyer that the transfer of the Property to Buyer will not violate
the Colorado Uniform Fraudulent Transfer Act, C.R.S. Sections 38-8-
101, et seq., and Xxxxxx agrees to indemnify, defend and hold
harmless Buyer and the Property from the claims of Seller's
creditors, and for all costs and expenses of Buyer incurred in
connection therewith, including Xxxxx's attorneys' fees.
13. Buyer's Representations.
a. Authority. Buyer is duly and properly authorized to
carry on its business in the State of Colorado and has full
authority to enter into this Agreement, to comply with all the
terms and obligations hereof and to consummate the transactions
provided for hereunder. The execution and delivery of this
Agreement and the transactions provided for hereunder will be duly
authorized by all necessary corporate action of the Buyer and this
Agreement will, when executed and delivered by Buyer, constitute
the valid and binding obligation of Buyer enforceable in accordance
with its terms.
b. Defaults. The execution and delivery of this
Agreement and the transactions provided for herein will not result
in a breach of any of the terms and provisions of or constitute
default under or conflict with any agreement, indenture, mortgage,
lien, lease, consent, license, franchise or other instrument to
which Buyer or any person or entity which Buyer represents is
bound.
14. Default. Time is of the essence hereof. If any payment
or any other condition hereof is not made, tendered, or performed
by the Buyer as herein provided, or if Buyer shall fail to close
within the time stated in Section 9 above, then at the election of
the Seller, and provided Xxxxx has not rightfully terminated this
Agreement and/or Seller shall not then be in default hereunder or
unable to convey merchantable title to Buyer, this Contract shall
terminate, and the xxxxxxx money deposit shall be paid to and
retained by the Seller as Seller's sole remedy hereunder and as
liquidated damages for Xxxxx's default or failure to close. In
such event neither party shall have any further or other
obligations hereunder to the other; provided, however, that Buyer
shall deliver to Seller, without additional cost, all contracts,
documents, agreements, appraisals, encumbrances, insurance
policies, site plans, studies, surveys, test results permits,
licenses, easements, maps, plats, leases, reports and data
pertaining to or affecting the Property which are in Buyer's
possession or under Buyer's control. If Seller is unable to convey
merchantable title or otherwise defaults hereunder, or fails or
neglects to perform its obligations or covenants as set forth in
this Contract, then Buyer may elect to terminate this Contract,
whereupon the xxxxxxx money deposit shall be returned by the Title
Company to the Buyer and both Buyer and Seller shall thereupon be
released from all obligations hereunder; or Buyer may elect to
treat this Contract as being in full force and effect, in which
event Buyer shall have the right to an action against Seller for
specific performance and damages.
15. Commissions. The Seller represents that no commissions
or fees shall be due or payable as a result of this transaction and
Seller agrees to indemnify and hold Buyer and the Property harmless
from any and all claims by brokers and sales agents to commissions
and fees, and for all costs and expenses, including Xxxxx's
attorney fees, incurred in connection with any such claims, except
as to brokers or agents with whom Xxxxx has contracted directly.
16. Applicable Law. This Contract is made in and shall be
construed and interpreted in accordance with the law of the State
of Colorado.
17. Assignment. Buyer may assign its rights under this
Agreement without the consent of Seller to a wholly owned
subsidiary of Buyer or to an entity controlled by or under the
common control of Buyer.
18. Attorney Fees. If either party commences an action to
enforce or interpret any portion of this Contract, the prevailing
party in such action shall be entitled to recover from the non-
prevailing party all costs and expenses, including reasonable
attorney fees, incurred by the prevailing party in any such action.
19. Notices. Any notice required or permitted to be
delivered hereunder shall be in writing and shall be deemed to be
given and delivered when deposited with the United States Postal
Service, postage prepaid, registered or certified mail, return
receipt requested, addressed to the party intended at the address
stated below, or to such other address as may hereafter be
furnished in writing:
If to Buyer: Global Central Corporation
Attn: Xxxxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
With Copies to: Xxxxxx, Xxxxxxx & Xxxxx, LLC
Attn: Xxxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Seller: U.S. Bank, N.A., Trustee
c/o Xxx Xxxx
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
With Copies to: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000-0000
and
Xxxxxx Xxxxxxx
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
20. Complete Agreement. This Contract expresses the entire
agreement of Seller and Buyer. There are no other understandings,
oral or written, which in any manner alter or enlarge its terms.
This Contract supersedes any and all agreements between the parties
hereto regarding the Property which are prior in time to this
Contract. Seller and Xxxxx agree to execute such additional
documents as may be reasonable and necessary to carry out the
provisions of this Contract.
21. Survival. All representations, warranties, indemnities
and covenants made herein shall survive the termination of this
Contract prior to Closing or, alternatively, the Closing of this
Contract and the conveyance of title hereunder, as the case may be,
and shall remain enforceable after either of such events.
22. Set-off. Following the Closing, any sums owed hereunder
by one party to the other that are not paid when due may be applied
as a set-off against any sums then or thereafter due to the
defaulting party, including, but not limited to, a portion of the
purchase price due Seller from Buyer, as evidenced by the Note.
23. Alternative Dispute Resolution. If a dispute arises
relating to this Contract, and is not resolved, the parties shall
first proceed in good faith to submit the matter to mediation.
Xxxxx and Seller will jointly appoint an acceptable mediator and
will share equally in the cost of such mediation. In the event the
entire dispute is not resolved within thirty (30) calendar days
from the date written notice requesting mediation is sent by one
party to the other, the mediation, unless otherwise agreed, shall
terminate. This section shall not alter any date in this Contract,
unless otherwise agreed.
24. Loss by Fire, Other Casualty or Condemnation. In the
event that prior to the Closing, the Property, or any substantial
part thereof, is destroyed or materially damaged, Buyer shall have
the right, exercisable by written notice to Seller within ten (10)
days after receiving notice of such damage or destruction, either
(i) to terminate this agreement, in which case neither party shall
have any further rights or obligations hereunder and the escrow
deposit shall be promptly returned to Buyer, or (ii) to accept the
Property in its then condition, proceed with the Closing, and
receive and accept an assignment of Seller's rights to any
insurance proceeds payable by reason of such damage or destruction.
Anything herein notwithstanding, the right of Buyer hereunder,
shall be subject to the rights of the tenant under the Lease of the
Property, and/or applicable law.
In the event that prior to the Closing, there is any
insubstantial or immaterial damage to the Property, Buyer shall
accept the Property in its then condition and proceed with the
Closing, in which case Buyer shall be entitled to an assignment of
any insurance proceeds. Anything herein notwithstanding, the right
of Buyer hereunder, shall be subject to the rights of the tenant
under the Lease of the Property, and/or applicable law.
In the event that prior to Closing, all or any material
portion of the Property is subject to a taking by public authority,
including a pending or threatened condemnation, Buyer shall have
the right, exercisable by notice to Seller within ten (10) days
after receiving notice of such taking, either (i) to terminate this
Agreement, in which case neither party shall have any further
rights or obligations hereunder and the escrow deposit shall be
returned to Buyer promptly, or (ii) to accept the Property in its
then condition, proceed with the Closing and receive an assignment
of all of Seller's rights to any condemnation award payable by
reason of such taking. Anything herein notwithstanding, the right
of Buyer hereunder, shall be subject to the rights of the tenant
under the Lease of the Property, and/or applicable law.
In the event that prior to Closing, any insubstantial or
immaterial portion of the Property is subject to a taking, Buyer
shall accept the Property in its then condition and proceed with
the Closing, in which case, Buyer shall be entitled to an
assignment of all of Seller's rights to any award in connection
with such taking. Anything herein notwithstanding, the right of
Buyer hereunder, shall be subject to the rights of the tenant under
the Lease of the Property, and/or applicable law.
For purposes of this Section 24, damage to the Property
or a taking of a portion thereof, shall be deemed to involve a
substantial or material portion if the reasonably estimated cost of
restoration or repair of such damage, or the amount of condemnation
award with respect to a taking, shall exceed $50,000.
25. Execution. This Contract may be executed by telex,
telecopy or other facsimile transmission, and such facsimile
transmission shall be valid and binding to the same extent as if it
were an original. Further, this Contract may be signed in one or
more counterparts, all of which when taken together shall
constitute the same document.
IN WITNESS WHEREOF, Xxxxx and Xxxxxx have signed this Contract
as of the date first above set forth.
GLOBAL CENTRAL CORPORATION,
a Colorado corporation
ATTEST:
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx, President
Seller:
