EXHIBIT 10.2
LEASE AGREEMENT
(Commercial)
ICE RINK TRACT
THIS LEASE AGREEMENT is made and entered into to be effective as of the
22nd day of April, 1994, by and between the TOWN OF XXXXXXX, a Municipal
Corporation of the State of Wyoming, of X.X. Xxx 0000, Xxxxxxx, Xxxxxxx 00000
("Landlord"), and SNOW KING RESORT CENTER, INC., a Wyoming corporation, of X.X.
Xxx XXX, Xxxxxxx, Xxxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of that certain parcel of real property and
improvements described generally as the Ice Rink Tract, as more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof (the "Leased Premises"), reserving unto the Landlord the right to exclude
the cemetery access roadway which shall be for mutual use by Landlord and Tenant
and Snow King Resort, Inc., as the "SKI Shelter Tenant"; and
WHEREAS, the parties hereto desire to enter into a written lease agreement
providing the terms, covenants and conditions for the occupancy of the Leased
Premises by Tenant; and
WHEREAS, the parties agree that any other leases between the parties
concerning this property are revoked and are superseded by this document.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
undertakings and benefits to the parties, the parties agree as follows:
1. Lease Of Leased Premises. Landlord agrees to lease to Tenant and Tenant
agrees to lease from Landlord the Leased Premises, including that part of the
improvements thereon outlined in red on Exhibit "B" attached hereto, according
to the terms and conditions of this Lease.
2. Term Of Lease. The term of the Lease shall be for a term of thirty (30)
years, commencing June 1, 1993 and terminating May 31, 2023 unless sooner
terminated or extended under the provisions of the Lease.
3. Rent And Payment. Tenant covenants and agrees to pay Landlord, during
the term of the Lease, as follows:
(a) Base Rent. Tenant shall pay on the first day of each month
commencing February 1, 1994, for five monthly payments (through June 30,
1994), the sum of Thirty Three Thousand Two Hundred and Fifty six Dollars
($33,256.00) each month. Thereafter, Tenant shall pay on the first day of
each month commencing on July 1, 1994, a sum equal to principal and
interest payments required to amortize and retire over a thirty (30) year
period a loan from Wyoming Farm Loan Board in an initial principal amount
not to exceed One Million Six Hundred Sixty-Three Thousand Five Hundred
Dollars ($1,663,500.00) with an interest rate of eight and one-half percent
(8 1/2%) per annum but not to exceed Twelve Thousand Seven Hundred
Ninety-One Dollars ($12,791.00) per month or such lesser amount as shall be
required from time to time to amortize the loan obtained for the purpose of
building the indoor ice skating facility on the Ice Rink Tract as described
above. In the event the Town, in its sole discretion, refinances this loan
and obtains a lower rate of interest, the Tenant shall be allowed to have
its rate of interest lowered to the same.
Tenant shall have the right to pay the principal balance on the loan
from the Wyoming Farm Loan Board (in the initial amount of One Million Six
Hundred and Sixty Three Thousand Five Hundred Dollars ($1,663,500.00) as
evidenced on the loan amortization schedule attached hereto as Exhibit "E",
at any time during the term of this .lease without penalty of any kind. If
Tenant exercises this option of prepayment, the base rent shall be reduced
to One Hundred Dollars ($100.00) per month, commencing the month after
payment in full has been made.
(b) Supplemental Rent. Based on Gross Revenue in accordance with the
schedule attached hereto as Exhibit "D" and by this reference made a part
hereof. Gross Revenue shall include not only those revenues listed on
Exhibit "D" but any and all revenues derived from the facilities or use of
facilities constructed or based upon the leased premises after deducting
therefrom only sales and use or like taxes. Tenant shall keep accurate and
complete accounting records kept in accordance with applicable accounting
standards. Tenant shall provide to Landlord an accounting for all Gross
Revenues within ninety (90) days of the close of each calendar year during
the term of this Lease or within ninety (90) days following the termination
of this Lease, whichever date is later. At the time of delivery of the
annual accounting, Tenant shall also tender any and all supplemental rent
due and owing as evidenced by the accounting provided. Landlord shall be
entitled to, at Landlord's expense, have conducted or conduct an audit of
Tenant's books and records to determine the accuracy of the accounting
provided by Tenant. In the event such audit shall reveal additional
supplemental rent due, Tenant shall immediately pay such supplemental rent
but Tenant shall have the option of requesting, at Tenant's expense, an
independent third party audit to confirm the amount due. In the event the
audit shall reveal supplemental rent underpayment of greater than five
percent (5%) of the total supplemental rent paid for that year, all audits
shall be conducted at the expense of Tenant. This requirement for payment
of supplemental rent shall survive the termination of the Lease for the
purposes of collecting supplemental rent due and owing through the date of
termination of this Lease.
(c) Additional Rent. In addition to the rent required of Tenant under
subparagraphs (a) and (b), Tenant shall be required to pay the sum of Sixty
Four Thousand Seventy Five Dollars ($64,075.00), which the Landlord
acknowledges has previously been paid by Tenant. In addition, the Tenant
shall be required to pay the principal sum of One Hundred and Seventy Three
Thousand Eight Hundred and Forty Three Dollars ($173,843.00) plus interest
on said principal amount at a base rate of eight and one half percent (8
1/2%) per annum, based upon an amortization schedule attached hereto as
Exhibit "E", which monthly payment shall commence June 1, 1993 and continue
for the following one hundred and twenty months. Tenant has a right of
prepayment on this principal balance at any time without penalty.
In addition to the rent required of Tenant, Tenant shall be jointly
and severally responsible with Snow King Resort, Inc. (the Tenant for the
Ski Shelter premises) for paying, in regular monthly installments, 1/120th
monthly, of the total amount of additional rent for the Ski Shelter
building and premises.
The additional rental payments due under this Lease Agreement shall
terminate with the 120th monthly rental installment and thereafter the
rental installments shall revert to those rentals reserved in paragraphs
33(a) and (b) of this Lease.
Rent payments shall commence in accordance with the foregoing schedule
and shall continue each month thereafter, and shall be made payable to
Landlord as follows: Town of Jackson, Wyoming, X.X. Xxx 0000, Xxxxxxx,
Xxxxxxx 00000 until directed otherwise.
4. Security For Rental Payments. The Tenant shall provide the following
security for the rental payments described in section 3(a), (b) and (c):
(a) S K Land, a Wyoming Limited Liability Company, hereinafter
referred to as "S K Land", will be a guarantor of all rental payments. S K
Land shall submit a financial statement to the Landlord at the time of the
execution of this Agreement. The parties acknowledge that S K Land is
purchasing real property legally described in Exhibit "F", and commonly
known as the "Love Property" under a real estate contract. This property is
hereinafter referred to as the "Love Property". S K Land agrees to promptly
pay when due all indebtedness on this real estate contract, and pay the
remaining indebtedness thereon on or before February 1, 1995. On or before
February 1, 1995, Tenant, at its option, shall do either of the following,
described as (1) or (2) :
(1) S K Land shall utilize the Love Property as collateral for
the obligations of this lease, with Landlord as Mortgagee and with the
amount being mortgaged equal to one (1) year's lease base rental
payments, excluding only supplemental rent. Landlord agrees it may
take a second position behind any bank on this mortgage. S K Land
agrees to this encumbrance on the Love Property, on or before February
1, 1995.
(2) Tenant shall provide to Landlord an irrevocable Letter of
Credit that may be drawn on a bank in Teton County, Wyoming, in an
amount equal to one (1) year's lease base rental payments, excluding
only supplemental rent. Draws on the Letter of Credit shall be
conditioned upon Tenant's failure to pay rental payments within ten
(10) days of written notice of default. Landlord shall be entitled to
draw on the Letter of Credit to make rental payments not paid within
the applicable cure period and the Letter of Credit shall be renewed
and increased after any such draw to the original principal amount of
the letter. This Letter of Credit shall be renewed annually not less
than thirty (30) days prior to each anniversary date of the initial
commencement date of the term of this lease until all terms in
condition (c) of this section are in full compliance.
(b) In the event of default, pursuant to Section 19, Tenant agrees
that Landlord shall retain as its sole and separate property, any and all
fixtures Tenant has placed and/or installed in the Ice Rink facility,
including but not limited to all assets listed on Exhibit "G".
(c) On or before September 15, 1996, Snow King Resort, Inc., a Wyoming
corporation, shall, at the Tenant's option, either become the guarantor of
all Tenant's obligations as defined in this lease or shall, by assignment,
become the Tenant of this lease, and be responsible, with Snow King Resort
Center, Inc., for all the obligations of the Tenant as described herein.
Snow King Resort, Inc. hereby agrees to become a guarantor of all Tenants
obligations or to accept an assignment of lease and to become responsible
for Tenant's obligations under this lease on or before September 15, 1996.
At such time, S K Land shall be released from further liability in regard
to this lease.
5. Late Rent Charges. In the event the monthly rent payments are not paid
within ten (10) days of the due date, a late charge of two percent (2%) of the
delinquent payment shall be paid by Tenant. Additionally, said late rent
payments shall automatically accrue interest at an interest rate of eighteen
percent (18%) from the due date, which accrual of interest shall continue until
the rent payment, together with accrued interest, is paid. Such interest shall
begin to accrue automatically on all delinquent rent payments (not paid within
the ten (10) day grace period) and shall be payable on demand without notice to
Tenant.
6. Use Of The Leased Premises. The use of the Leased Premises shall be
restricted to skating activities, conventions, exhibit hall and food and
beverage services only and other events if approved by the Landlord. Any
nonskating event with a projected attendance of 500 or more is deemed a special
event, requiring the Tenant to obtain a special event plan as prepared by the
Landlord. The Tenant will present the special event plan to the Police
Department and the Fire Xxxxxxxx. Both of these departments need to respond
within five (5) working days to the Tenant as to whether the plan is approved or
denied or if there are measures needed to mitigate any impacts. If the Landlord
has not responded within five (5) days, the event is deemed approved as
presented. If either the Police Department or Fire Xxxxxxxx denies the event
within the five day period, it is deemed denied. Tenant must submit seating
plans or other arrangements of the room with the special event plan. The events
known as the Fireman's Ball, Christmas Bazaar, Halloween Party, the Snow King
Hill Climb and New Year's Eve Party are deemed approved, subject to review by
the Police and Fire Xxxxxxxx for conformance with their rules and regulations.
Tenant shall use and allow the use of the Leased Premises only for the purposes
not prohibited by the laws, regulations, covenants and ordinances of the United
States, State of Wyoming, Teton County and the Town of Xxxxxxx.
Tenant shall have the right, so long as Tenant has a valid license from the
Town of Xxxxxxx, to sell alcoholic and/or malt beverages in specific locations
from within and upon the Leased Premises in accordance with all conditions which
apply to any license, and must adhere with all applicable laws of the state of
Wyoming and ordinances of the Town of Xxxxxxx as they may exist from time to
time.
Tenant is authorized to sublease specific portions of the Ice Rink building
to Snow King Resort, Inc., with specific authorization to sell alcoholic and/or
malt beverages. Any such sublease shall require approval of the Landlord in
writing and shall require that the sublessee have a valid liquor license and
that all operations of the sublessee shall be strictly in accordance with all
applicable rules, regulations, ordinances and statutes of the Town of Xxxxxxx
and the State of Wyoming as they may exist from time to time.
There will be the following restrictions associated with the dispensing of
liquor:
(a) The licensee will not be allowed to sell package liquor to the
public for off premises consumption.
(b) During standard operating functions, which would be ice skating,
and operation as a ski shelter, the applicant will be allowed to sell beer
and wine only.
(c) Full liquor service be allowed at banquets, parties, conventions,
or special events only.
(d) The licensee will not operate as a bar or lounge at any time.
(e) Applicant and Council agree to attach the above conditions on this
lease for the reason that this facility will allow minors in both the ski
shelter area and the ice rink area.
Tenant acknowledges that the indoor ice skating rink facility is part of a
winter sports complex, including a ski shelter facility. Tenant shall share the
use of all common entry ways, hallways, walkways, parking areas and driveways on
a square footage prorata basis with Snow King Resort, Inc., as tenant of the Ski
Shelter facility. All costs of maintenance, utilities and other such expenses
for common area or jointly used spaces shall be shared on a prorata square
footage basis between Tenant hereunder and the tenants from time to time
occupying the remainder of the winter sports complex.
7. Acceptance Of Leased Premises. Taking possession of the Leased Premises
by Tenant shall be conclusive evidence as against the Tenant that such premises
are in good and satisfactory condition when possession of same was taken. Tenant
has inspected the Leased Premises and accepts the same in "as is" condition
subject only to completion of construction and "punch list" items, if any.
8. Subordination To Mortgage. This Lease shall be and is hereby made
subordinate to any mortgages or other security instruments, which may now or
hereafter encumber the Leased Premises, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination need be required by
any mortgagee or security holder. Tenant shall, at Landlord's request, promptly
execute any appropriate estoppel certificate, subordination agreement or
instrument that Landlord may reasonably request in this regard.
9. Taxes And Assessments. Landlord shall pay all real estate taxes, real
estate assessments, and any and all other governmental charges, assessments or
taxes payable in respect to the Leased Premises or any part thereof during the
term of this Lease. Tenant shall be liable for taxes levied against its personal
property, trade fixtures and other property placed by Tenant in, on or about the
Leased Premises.
10. Utilities. Tenant shall pay for the use of all the water, sewage,
electrical, gas, telephone, cable television, garbage and other utility services
to or used by and in connection with the Leased Premises, which charges shall be
reasonably apportioned between Tenant and Snow King Resort, Inc. as Tenant for
the Ski Shelter Improvements depicted on Exhibit "B". Tenant shall establish and
maintain all utilities accounts in its name.
11. Repair And Maintenance. Tenant acknowledges that the Leased Premises
will be in good repair and working order. Tenant shall, at its sole expense,
except for all Warranty work for new construction or equipment, which shall be
assigned or accrue to the benefit of Tenant, maintain the interior and exterior
of the Leased Premises (including, without limitation, all electrical, plumbing
and mechanical systems) in as good order and repair as it was at the date of the
commencement of this Lease, reasonable wear and tear excepted. Tenant shall not
knowingly commit or willingly permit to be committed any act or thing contrary
to the rules and regulations of any federal, state, municipal or
quasi-governmental authority. If the Landlord determines, in its sole
discretion, that the facility is not being properly maintained, it shall give
notice to Tenant in writing to repair and/or maintain the premises. The Tenant
shall have 48 hours in which to correct any minor deficiencies (small repairs or
cleaning inadequacies) and thirty (30) days for larger repairs. If the repairs
and maintenance are not performed to Landlord's satisfaction within the required
time period, Landlord may employ another person or entity to repair and/or
maintain all or any part of the premises and the Tenant shall be responsible for
the payment of all expenses and costs related to said repair and maintenance,
which if not paid, shall be deemed a default pursuant to Section 20, below.
Tenant shall permit Landlord, or its representatives, to inspect at any
time the Leased Premises and to make improvements to the Leased Premises as
Landlord may now or hereafter deem to be necessary and/or appropriate for the
Leased Premises. All such improvements shall be done, so far as practicable, to
avoid interference with Tenant's occupancy and use of the Leased Premises,
provided that Tenant shall not be entitled to compensation for unavoidable
interference with its occupancy and use.
12. Alterations. Landlord shall have the right at any time to enter the
Leased Premises to make such additions, repairs or alterations as it may deem
necessary or property for the safety, improvement or preservation of the Leased
Premises.
Tenant shall make no alterations in or additions to the Leased Premises
without first obtaining the written consent of the Landlord, and all additions
or improvements made by Tenant shall be deemed a part of the Leased Premises and
permanent structure thereon and shall remain upon and be surrendered with the
Leased Premises at the termination of this Lease by lapse of time or otherwise.
13. Insurance. Landlord shall maintain fire and extended "all-risk"
coverage insurance upon the Leased Premises, which shall include the Ice Rink
facility and the Ski Shelter facility. Such insurance shall be maintained with
an insurance company authorized to do business in Wyoming in an amount not less
than Three Million Five Hundred Thousand Dollars ($3,500,000.00) during the term
of the Lease for both premises.
Tenant shall maintain at its expense fire and extended coverage insurance
on all of its personal property, including trade fixtures and on all additions
and improvements made by Tenant not required to be insured by Landlord.
Tenant shall, at Tenant's expense, maintain a policy or policies of
comprehensive general liability insurance with the premiums thereon fully paid
on or before due date, issued by and binding upon an insurance company with a
Best Rating Guide A plus Class 15 Rating, such insurance to afford minimum
protection of not less than a single limit of One Million Dollars
($1,000,000.00) in respect to personal injury and/or death to one or more
persons and for property damage. The insurance policy shall name Landlord as an
additional insured and shall cover all risks incident to Tenant's use of the
Leased Premises and business in connection therewith.
Tenant shall furnish Landlord with certificates and copies of all insurance
policies to be maintained by Tenant with evidence of payment of the premiums
thereon. All such insurance policies shall contain a clause or endorsement to
the effect that they may not be terminated or materially amended during the term
of this Lease except after fifteen (15) days written notice thereof to Landlord.
14. Assignment. Sublease And Mortgage By Tenant. Tenant shall not assign or
create a security interest in, pledge or encumber this Lease or the Leased
Premises, in whole or in part, or sublet the whole or permit the use of the
whole or any part thereof by any sub-tenant, licensee or concessionaire, unless
Tenant first obtains Landlord's written consent, which consent will not be
unreasonably withheld. In the event of any such assignment, subletting,
licensing or granting of a concession, Tenant shall never-the-less remain liable
for the performance of all the terms, conditions and covenants of this Lease
(including, without limitation, the covenant to pay rent).
15. Required Subleases. Notwithstanding the provisions of paragraph 15 and
in recognition of contributions made by the public and public entities towards
the construction of the winter sports complex contemplated by this Lease
Agreement, Tenant shall be required as a condition of this Lease to offer
subleases which have been approved in writing by Landlord as follows:
(a) Jackson Youth Skating. Inc. Tenant shall make available to and
offer to Jackson Youth skating, Inc. (JYS) or its successor non-profit
corporation or organization a sublease for the purpose of making available
to the youth of the Town of Xxxxxxx and Teton County the ice skating
facility contemplated to be a part of the winter sports complex which is
the subject of this lease, including the following terms and conditions.
i) The sublease shall require that for each year of the sublease,
Landlord will maintain high quality ice from October 22 through March
22 ("the Skating Season") whether or not Subtenant exercises its right
as specified below with the dates being subject to adjustment on
agreement between Landlord, Tenant and Subtenant.
ii) During each skating Season, JYS shall agree to pay not less
than Twenty Thousand Dollars ($20,000.00) for ice time during that
skating Season and JYS shall have the priority right to use of the ice
time during the periods from 4:00 p.m. to 8:00 p.m. on each weekday
during the Skating Season and from 9:00 a.m. to 12:00 p.m. on each
Saturday and Sunday during the Skating Season provided that on ninety
(90) days notice to JYS, Tenant shall have the right during the
Skating Season to eliminate the availability of ice time on four (4)
weekend days specified in writing by Tenant provided that Tenant shall
then grant to JYS the option of rescheduling its time on such weekend
days to other weekend days of JYS's choice at times designated by JYS
between 9:00 a.m. and 8:00 p.m.
iii) JYS shall notify Tenant of the times it elects to reserve
for a season by the latter of 1) the proceeding October 1; and 2)
twenty (20) days after JYS's notification by Tenant in writing of the
need for JYS to make its election, provided in turn that if JYS fails
to make a timely designation, Tenant will notify JYS in writing of
that failure and JYS shall then have another ten (10) days in which to
make the designation.
iv) Payments for ice time to be made by JYS shall be made at the
end of each month for which ice time is reserved. All ice time
reserved by JYS shall be paid for regardless of use unless alternate
use is arranged in advance by JYS.
v) The ice time rental payable by JYS shall not exceed eighty
percent (80%) of the reasonable public rate established by Tenant,
taking into consideration the scheduling and amount of ice time in
question and the demand for comparable ice time in Xxxxxxx Hole. In
the event Tenant and JYS fail to agree on the base rate or rates
payable by JYS by the 15th day of July preceding the season in
question, Landlord shall designate an arbitrator to make a binding
decision with respect to the rate to be charged.
vi) The provision with regard to rental for ice time may be
amended at any time by agreement between Tenant and Subtenant for
"current" or "next" season provided that Landlord shall be given
notice in advance of the proposed amendment and shall have thirty (30)
days from the date of receipt of notice in which to reject the
proposed amendment.
vii) All additional subleases for skating facilities or uses
shall require the granting to bona fide members of JYS of a twenty
percent (20%) discount on such items as skate sharpening, skate
rentals and purchases of skating-related items.
viii) JYS shall have the right to sell or lease advertising on
the boards surrounding the hockey rink, the ice, the Zamboni and on
the scoreboard/clock. The net proceeds from all such rental charges
shall be used to pay rental for ice time. The Landlord and/or Tenant,
in Landlord's discretion, may have its logos or other signs in
locations through the complex without compensation to JYS.
ix) The sublease may include such other terms and conditions as
the parties specifically, including Landlord, shall mutually agree.
Other than as stated above, Tenant shall not sublease any portion of the
property, whether the interior or the exterior of the property, including the
erection of temporary structures, without the written approval of the Landlord,
which approval will not be unreasonably withheld. Any approved sublessee must
have a valid liquor license prior to the sale of any alcoholic or malt beverage.
16. Signs. Tenant shall have the right to erect and maintain signs in, on
or about the Leased Premises, provided, that same shall comply with governing
laws, regulations, covenants and ordinances of the United states, state of
Wyoming, County of Teton and the Town of Xxxxxxx. All such signs must, however,
be approved in advance in writing by the Landlord.
17. Tenant's Covenants. Tenant covenants that it shall:
(a) During each skating season, Tenant shall provide skating to the
public for one public session two week days per week between the hours of
8:00 p.m. and 10:00 p.m., with an option for a third night based upon
demand determined by the Landlord. Tenant shall have the right at any time
to increase public skating. During each skating season, Tenant shall
provide at least three (3) hours skating to the public each Saturday and
Sunday during the 1:00 p.m. to 10:00 p.m. time period each day except for
the four weekend days as defined in Section 15(a)(ii). In addition to said
four weekends, the public skating may be eliminated due to the Christmas
bazaar weekend, the Halloween party weekend and the Firemen's Ball weekend.
To accommodate the needs of the Landlord, the Tenant will add three
additional week days or weekends to the skating season to accommodate for
these three additional events. This requirement may be excused in the sole
discretion of the Landlord. Tenant shall cause to be published a dependable
schedule for public skating at the beginning of each skating season.
(b) The Landlord has the authority to prohibit parking that interferes
with safe and appropriate use of the center and retains the right to sign
and enforce parking regulations for public safety, access and appropriate
use. The Tenant is required to direct and control all public parking to
conform to the regulations and requirements of the Landlord.
(c) Comply with all laws, orders, regulations, rules, ordinances and
covenants of any state or federal statute or local ordinance or regulation
applicable to Tenant and/or its use of the Leased Premises.
(d) Give to Landlord prompt written notice of any accident, fire or
damage occurring on or to the Leased Premises.
(e) Keep the Leased Premises sufficiently heated to prevent freezing
of pipes, waterlines and fixtures.
(f) Keep the Leased Premises orderly, clean, sanitary and free from
objectionable odors and insects, vermin, pets, pests and nuisances.
(g) Do all things reasonable possible to prevent filing of any
mechanics' or other liens against the Leased Premises or any part thereof
by reason of work, labor, services or materials furnished or claimed to
have been furnished to Tenant, or anyone holding the Leased Premises or any
part thereof, through or under Tenant. If any such lien shall be filed
against the Leased Premises, Tenant shall either cause the same to be
discharged of record within twenty (20) days after the date of the filing
of same, or if the Tenant, in Tenant's discretion and in good faith,
determines the lien should be contested, Tenant shall furnish such security
as may be necessary or required to prevent any foreclosure against Tenant's
or Landlord's interest in the Leased Premises. If Tenant shall fail to
discharge such lien within such period, or fail to furnish adequate
security, then in addition to any other right of remedy of Landlord,
Landlord may but shall not be obligated to discharge the lien either by
paying the amount claimed to be due or by procuring the discharge of such
lien by obtaining security or in any other manner. available to Landlord.
Nothing herein contained shall imply any consent or agreement on the part
of Landlord to subject Landlord's interest in the Leased Premises to
liability under any mechanics' or other lien law.
(h) Repay Landlord, as additional rent, on demand, all sums disbursed
or deposited by Landlord pursuant to the provisions of this section,
including Landlord's costs, expenses and reasonable attorneys' fees
incurred by Landlord in connection therewith.
(i) Permit no one other than employees, agents, servants and business
invitees to remain in or loiter upon the Leased Premises.
(j) Comply with all reasonable rules and regulations that may be
established, from time to time, by Landlord. Tenant covenants that it shall
not do or suffer to be done anything objectionable to the fire insurance
companies, whereby the fire insurance or any other insurance now in force
or hereafter to be placed on the Leased Premises or any part thereof shall
become void or suspended, or be rated as a more hazardous risk than at the
date when Tenant receives possession hereunder. In the event of breach of
this covenant, in addition to all other remedies of Landlord, Tenant shall
pay to Landlord as additional rent any increase in insurance premiums.
18. Landlord's Covenants Of Quiet Enjoyment. The Landlord covenants that
the Tenant, upon paying the rentals and performing the covenants upon its part
to be performed herein, shall peacefully and quietly have, .hold and enjoy the
Leased Premises during the term hereof.
19. Damage Or Destruction To Leased Premises. If the Leased Premises shall
be damaged by fire, the elements, unavoidable accident or other casualty,
without the fault or negligence of Tenant, or Tenant's servants, employees,
agents, visitors, licensees, invitees or sub-tenants, and the Leased Premises
are not thereby rendered untenantable in whole or in part, Landlord shall, at
its expense, cause such damage to be repaired, and the rent shall not be abated.
If, by reason of such occurrence, the Leased Premises shall be rendered
untenantable only in part, Landlord shall promptly cause the damage to be
repaired and the rent, during such period of repair, shall be abated
proportionately to the portion of the Leased Premises rendered untenantable. If,
by reason of such occurrence, the Leased Premises shall be rendered wholly
untenantable, Landlord shall cause such damage to be repaired and the rent,
during such period of repair, shall be abated in whole. There shall be no
extension of the term of this Lease by reason of such abatement. Notwithstanding
the foregoing provisions, if the Leased Premises shall be rendered wholly
untenantable by reason of such occurrence and the Leased Premises cannot be
repaired within six (6) months from the date such damage occurs, Landlord or
Tenant shall, at their option, have the right to declare the balance of the term
of this Lease to be null and void.
If any such damage or destruction occurring to the Leased Premises, whether
partial or complete, shall occur as the result of the fault or any negligence of
Tenant or Tenant's servants, employees, agents, business invitees, licensees or
sub-tenants, there shall be no apportionment or abatement of rent during the
term of this Lease.
20. Default By Tenant. The Tenant agrees to observe and perform the
conditions and covenants set forth in this Lease, and further agrees that if
default be made in the payment of any rent and such payment default continues
for ten (10) days following the due date for such payment, or if Tenant shall
fail to observe or perform any of the other conditions or covenants and such
other default shall continue for more than thirty (30) days after written notice
of such default, then and in that event, and as often as the same may happen, it
shall be lawful for Landlord, at its election, with or without previous notice,
to terminate this Lease or to re-enter and repossess itself of the Leased
Premises without termination, with or without legal proceeding, using such force
as may be necessary, and to remove therefrom any personal property belonging to
Tenant without prejudice to any claim for rent or for breach of the covenants
hereof, or without being guilty of any manner of trespass or forcible entry and
detainer. The foregoing described rights shall be non-exclusive and shall be in
addition to any and all of the rights and remedies Landlord may have pursuant to
governing law.
21. Payment After Termination. No payments of money by Tenant to Landlord
after the termination of this Lease, in any manner or after the giving of any
notice by Landlord to Tenant shall reinstate, continue or extend the term of
this Lease or affect any notice given to Tenant prior to the payment of such
money.
22. Abandonment Of Leased Premises. If Tenant shall abandon or vacate the
Leased Premises before the end of the term of this Lease, or if Landlord
re-enters the Leased Premises without termination, the Landlord may, at its
option and without notice to Tenant, enter the Leased Premises, and re-let the
same, or any part thereof, as it may see fit, without thereby voiding or
terminating this Lease, and, for the purpose of such reletting, Landlord is
authorized to make any repairs, changes, alterations or additions in or to the
Leased Premises, as may, in the sole discretion of Landlord, be necessary or
desirable for the purpose of such re-letting, and if a sufficient sum shall not
be realized from such re-letting each month to equal the monthly rental under
the provisions of this Lease, then Tenant agrees to pay such deficiency.
23. Indemnification. Tenant shall indemnify Landlord and save it harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury or damage to property occurring in
or about, or arising out of or from the Leased Premises and adjacent sidewalks
and loading areas, or the occupancy or use of the Leased Premises by Tenant or
its sub-tenants, or occasioned who11y or in part by any act or omission of
Tenant, its agents, licensees, business invitees, concessionaires, contractors,
customers, employees or sub-tenants.
In case Landlord shall be made a party to any litigation commenced by or
against Tenant, its agents, licensees, business invitees, concessionaires,
contractors, customers, employees or sub-tenants, Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorneys'
fees incurred or paid by Landlord in connection with such litigation.
24. Attorneys' Fees. In the event either party shall find it necessary to
obtain the services of an attorney to enforce any of the covenants and
conditions of this Lease, the prevailing party shall be entitled to
reimbursement for all costs and expenses, including reasonable attorneys' fees,
whether or not litigation is commenced.
25. Trade Fixtures. Trade fixtures installed by Tenant in the Leased
Premises shall remain the property of the Tenant and shall be removed at any
time by it on or before the termination of this Lease by lapse of time or
otherwise. Any damage caused to the Leased Premises that is the result of such
removal shall be repaired by Tenant at its expense. Any such trade fixtures not
removed at or prior to the termination shall become the property of Landlord.
Lighting fixtures, whether or not installed by Tenant, shall not be removable at
the expiration or earlier termination of this lease, and shall become the sole
property of Landlord.
26. Landlord's Access. Landlord and its agents, employees or other
representatives may enter the Leased Premises at any reasonable time after
reasonable notice for the purpose of (a) inspecting the Leased Premises to
ascertain Tenant's compliance with the terms and conditions of this Lease, (b)
in order to make repairs, additions or alterations as the Landlord deeds
necessary, (c) to post notices of non-responsibility under mechanics' lien law,
(d) to exhibit the Leased Premises for sale, lease or mortgage financing, or (e)
for any other reasonable purposes.
27. Notices. Any notices required or permitted to be given or served by
either party to the other shall be deemed to have been duly given or served
there if in writing and forwarded by certified mail, postage prepaid, return
receipt requested, to the respective addresses set forth below. Such notices
shall be deemed given upon mailing of sale.
Tenant:
Snow King Resort Center, Inc.
X.X. Xxx XXX
Xxxxxxx, Xxxxxxx 00000
Landlord:
Town of Xxxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
28. Amendment Or Modification. Tenant acknowledges and agrees that it has
not relied upon any statement, representation, agreement or warranty, except
such as are expressly stated herein, and that no amendment or modification of
this Lease shall be valid or binding unless expressed in writing and executed by
the parties hereto in the same manner as the execution of this Lease.
29. Memorandum Of Lease. The parties may execute a shortform memorandum of
this Lease in recordable form, which may, at either parties' option, be placed
of record in the Teton County real estate records.
30. No Partnership. No partnership or joint venture is created by this
Lease. The Landlord and Tenant shall be construed to be that relationship of
landlord and tenant only.
31. Miscellaneous. Time is of the essence.
No waiver of any breach of one or more of the conditions or covenants in
this Lease by Landlord shall be deemed to imply or constitute a waiver of any
succeeding pr other breach hereunder.
This Lease and its provisions shall be construed and enforced in accordance
with and pursuant to governing Wyoming law.
The headings used in this Lease are for convenience only and are not to be
used in its construction.
Whenever used, the singular shall include the plural, the plural the
singular and the use of any gender shall include all genders.
If there is more than one person comprising the Tenant, the covenants,
agreements, undertakings and obligations hereunder shall be the joint and
several obligations of all such persons.
This Lease may be executed in multiple counterparts, each of which shall be
deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective as of the day and year first above written.
LANDLORD:
TOWN OF XXXXXXX, a Municipal
Corporation
By: /s/ Xxxx X. Xxxxxxxx
Mayor
ATTEST:
By: /s/ Town Clerk
Town Clerk
TENANT:
SNOW KING RESORT CENTER, a
Wyoming corporation
By: /s/ Xxxxxx X. Xxxxx
President
ATTEST:
By: /s/ Secretary
Secretary
S K LAND LIMITED LIABILITY
COMPANY
By: /s/ Xxxxxx X. Xxxxx
Managing Partner
ATTEST:
By: /s/ Secretary
Secretary
SNOW KING RESORT, INC.
By: /s/ Xxxxxx X. Xxxxx
President
ATTEST:
By: /s/ Secretary
Secretary
