EXHIBIT 10.18
LEASE AGREEMENT AND OPTION TO PURCHASE
THIS LEASE AGREEMENT AND OPTION TO PURCHASE is made and entered into this
29th day of January, 2004, between Biggest Little Investments, L.P., a Delaware
limited partnership, hereinafter referred to as "LESSOR," and Golden Road Motor
Inn, Inc., a Nevada corporation, hereinafter referred to "LESSEE."
ARTICLE 1
GRANT AND TERM
1.1 AGREEMENT TO LEASE. LESSOR hereby leases the hereinafter described
real property to LESSEE, and LESSEE hereby leases said real property from
LESSOR for the term and according to the terms, covenants, agreements,
representations and conditions set forth herein.
1.2 PROPERTY. The subject property is all that certain property described
in Exhibit "A" attached hereto and located in the City of Reno, County of
Washoe, State of Nevada, hereinafter referred to as the "Property", including
the improvements to be constructed by LESSOR. The Property is part of a
Shopping Center to be known as The Village, and formerly known as the Sierra
Marketplace Shopping Center (hereinafter "Shopping Center".) LESSOR represents
that this Lease is subject only to the easements and encumbrances of record
against the Property as shown in the Title Report (described below).
1.3 TERM. The term ("Term") of this Lease shall be fifteen (15) years
commencing on the Commencement Date (defined below) and expiring at 5:00 p.m.
on the last day of the Term, unless sooner terminated under any provisions
hereof. The Term of this Lease and the LESSEE'S obligation to pay rent, as
provided in Section 1.4 below, shall commence (hereinafter "Commencement Date")
on the first to occur of the following events:
A. Following completion of the Improvements (defined below), the date
on which the Property is approved for use by the appropriate governmental
agency.
B. The date on which the LESSEE shall open the Property for pedestrian
and vehicle traffic to the public.
In the event that the Commencement Date does not occur on the first day of
the month, then the Term shall commence on the first day of the month next
succeeding the Commencement Date, provided LESSEE shall pay Minimum Monthly
Rent and Additional Rent as provided in Article 2 below, for the fractional
month from the Commencement Date through the first day of the next succeeding
month on a per diem basis, calculated on the basis of a thirty (30)-day month,
in advance. All Lease expirations, renewal dates, notices of options to renew,
and any other provision relating to the commencement of the Term of this Lease
shall be determined by reference to (i) the Commencement Date where same occurs
of the first day of the month, or (ii) on the first day of the next succeeding
month where the Commencement Date does not occur on the first day of the month.
1.4 OPTIONS TO EXTEND LEASE PERIOD. LESSOR hereby grants to LESSEE three
(3) successive options to renew the Term of this Lease for additional five (5)
year terms each. The first renewal option is granted at the expiration of this
original Lease Term, provided LESSEE is not in default
-1-
under this Lease. The two (2) additional options to extend and renew this
Lease for successive five (5) year terms each, are exercisable in the event
LESSEE properly exercised the prior option and provided LESSEE is not in
default under this Lease at the time thereof. Said renewal terms shall be
collectively referred to herein as "Renewal Terms" and individually referred to
as "Renewal Term." Each option to renew this Lease shall be exercised by
LESSEE giving written notice thereof to LESSOR at least ninety (90) days prior
to expiration of the original term or the Renewal Terms of this Lease, but not
before 180 days prior to said expiration. All of the terms and provisions of
this Lease shall continue in full force and effect and shall apply in all
respects to all Renewal Terms and all references in this Lease to Term shall
hereinafter include the Renewal Terms. During each Renewal Term, the Minimum
Monthly Rent shall be adjusted upward and increased as provided in Section 2.1
hereof.
1.5 LESSOR'S FAILURE TO COMPLETE IMPROVEMENTS. In the event the traffic
control signal on Xxxxx Xxxxxxxx Xxxxxx at the access point to the Property and
the other build-to-suit improvements to be constructed by LESSOR pursuant to
Article 3 below, are not completed on or before December 31, 2004, this Lease
may be terminated by LESSEE upon not less than ten (10) days prior written
notice to LESSOR.
1.6 LEASEHOLD POLICY OF TITLE INSURANCE. LESSOR has delivered to LESSEE a
preliminary title report prepared by Western Title Company, Inc. (Order No.:
00138583) dated as of December 15, 2003 (the "Title Report"). LESSOR
represents that the Title Report is for the Shopping Center. Within 45 days
after the mutual execution and delivery of this Lease, LESSEE, in LESSEE'S sole
discretion and at its sole expense, may cause a title company to issue a
leasehold policy of title insurance for the Property (hereinafter "Leasehold
Title Policy"), insuring that LESSEE is leasing the Property subject only to
such exceptions acceptable to LESSEE and the standard printed exceptions
included within a Leasehold Title Policy. In the event that LESSEE is unable
to have a Leasehold Title Policy issued which is acceptable to LESSEE within
the 45 day period stated herein, this Lease may be terminated by LESSEE upon
not less than ten (10) days prior written notice to LESSOR. In the event that
a Leasehold Title Policy is not issued within said 45 day period and LESSEE
does not provide notice of Lease termination to LESSOR within ten (10) days
thereafter, LESSEE shall be deemed to have accepted this Lease subject to only
those exceptions contained in the Title Report and this Lease shall continue in
full force and effect in accordance with its terms.
ARTICLE 2
RENT AND OTHER CHARGES
2.1 RENT. As and for rent for the Property, LESSEE shall pay LESSOR
monthly rent as follows:
A. MINIMUM MONTHLY RENT. The Minimum Monthly Rent shall be $25,000.00
per month for the first sixty (60) months, which shall be increased every sixty
(60) months on the day and the month on which the Commencement Date occurs in
each consecutive sixty (60) month period following the Commencement Date
(hereinafter "Anniversary Date"), as provided in Section 2.1(B) below.
B. ADJUSTMENTS TO MINIMUM MONTHLY RENT. The Minimum Monthly Rent is
subject to increase on the first day of the sixty-first (61) calendar month
following the month during which the Commencement Date occurs and on each
-2-
Anniversary Date thereafter for the duration of the Term. The base for
computing the increase (hereinafter "Beginning Index") is the All Urban
Consumers Index, U.S. Cities Average, All Items category published by the
United States Department of Labor, Bureau of Labor Statistics (hereinafter
"Index"), which is in effect for the month in which the Commencement Date
occurs. The Index published and in effect the three (3) months preceding each
Anniversary Date (hereinafter "Comparison Index") is used in determining the
amount of the increase from one sixty (60) month period to the next. Beginning
on the first Anniversary Date, and thereafter on each subsequent Anniversary
Date, the Minimum Monthly rent as indicated in Section 2.1(A) will be increased
by multiplying the Minimum Monthly Rent in effect during the preceding sixty
(60) month period by a fraction, the numerator being the Comparison Index and
the denominator being the Beginning Index. In no event, however, will the
amount of Minimum Monthly Rent for one sixty (60) month period be less than the
Minimum Monthly Rent for the preceding sixty (60) month period. Further the
cost of living adjustment will be applied to the Minimum Monthly Rent amount
only.
i. If, in the future, the Index shall be changed then the Index shall
be converted in accordance with the conversion factor published by the United
Stated Department of Labor, Bureau of Labor Statistics. In the event the Index
is discontinued or revised during the Term hereof, such other governmental
index or computation with which it is replaced shall be used in order to obtain
substantially the same result that would be obtained if the Index had not been
discontinued or revised.
ii. No later than five (5) days after each Anniversary Date, LESSOR
will give LESSEE written notice of the adjusted Minimum Monthly Rent payable
for the next succeeding five (5) year period; provided, however, failure of
LESSOR to give such notice shall not be construed as a waiver of any increase
in the Minimum Monthly Rent.
C. PAYMENT OF RENT. Rent shall be payable in advance and shall be due
and payable on the first (1st) day of each month, commencing on the
Commencement Date, as provided in Section 2.1 (B) above. Rent shall be paid to
LESSOR at the address provided herein for service of notice, unless otherwise
directed in writing by the LESSOR.
2.2 ADDITIONAL RENT. All charges payable by LESSEE hereunder, other than
Minimum Monthly Rent, are collectively referred to as "Additional Rent."
Unless this Lease provides otherwise, all Additional Rent shall be paid with
the next monthly installment of Minimum Monthly Rent. The term "Rent" shall
mean Minimum Monthly Rent and Additional Rent.
2.3 REAL PROPERTY TAXES.
A. PAYMENT OF TAXES. LESSEE agrees to pay LESSEE'S pro rata share of
all Real Property Taxes, as hereinafter defined, which may be levied or
assessed by any lawful authority against the land on which buildings are
located and improvements thereon in the Shopping Center. LESSEE shall pay its
share of such Real Property Taxes upon receipt of a statement from LESSOR
delineating LESSEE'S share of same, which share shall be paid within ten (10)
days after receipt of LESSOR'S statement. LESSEE hereby agrees for purposes of
this Lease that LESSEE'S proportionate share of such Real Property Taxes is
7.28%. All Real Property Taxes for the year in which this Lease commences
shall be apportioned and adjusted.
-3-
B. DEFINITION OF "REAL PROPERTY TAXES". "Real Property Taxes" means:
(i) any fee, license fee, license tax, business license fee, commercial rental
tax, levy, charge, assessment, penalty or tax (other than inheritance or estate
taxes) imposed by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agriculture, lighting, drainage or other improvement district thereof, as
against any legal or equitable interest of LESSOR in the Property; (ii) any tax
on the LESSOR'S right to receive, or the receipt of, rent or income from the
Property or against LESSOR S business of leasing the Property; (iii) any tax or
charge for fire protection, streets, sidewalks, road maintenance, refuse or
other services provided to the Property by any governmental agency; (iv) any
tax imposed upon this transaction or based upon a reassessment of the Property
due to a change in ownership or transfer of all or part of LESSOR'S interest in
the Property; and (v) any charge or fee replacing any tax previously included
within the definition of Real Property Taxes. "Real Property Taxes" shall not,
however, include LESSOR'S federal or state income, franchise, inheritance,
estate taxes or any real property transfer taxes.
2.4 PERSONAL PROPERTY TAXES.
A. LESSEE shall pay prior to delinquency all taxes charged against the
trade fixtures, furnishings, equipment or any other personal property belonging
to LESSEE. LESSEE shall use its best efforts to have such personal property
taxed separately from the Property.
B. If any such taxes on LESSEE'S personal property are levied against
LESSOR or LESSOR'S property, or if the assessed value of the Property is
increased by the inclusion therein of a value placed upon such personal
property or trade fixtures of LESSEE, then LESSOR, after written notice to
LESSEE, shall have the right to pay the taxes based upon such increased
assessments, regardless of the validity thereof, but only under proper protest
if requested by LESSEE in writing. If LESSOR shall do so, then LESSEE shall,
upon demand, repay to LESSOR the taxes levied against LESSOR, or the proportion
of such taxes resulting from such increase in the assessment. In any such
event, however, LESSEE, at LESSEE'S sole cost and expense, shall have the
right, in the name of LESSOR and with LESSOR'S full cooperation, to bring suit
in any court of competent jurisdiction to recover the amount of any such taxes
so paid under protest; any amount so recovered to belong to LESSEE.
C. If any of LESSEE'S personal property is taxed with the Property,
LESSEE shall pay LESSOR the taxes for the personal property within fifteen (15)
days after LESSEE receives a written statement from LESSOR for such personal
property taxes.
2.5 UTILITIES. LESSEE shall pay, directly to the appropriate supplier,
the cost of all natural gas, heat, light, power, sewer service, telephone,
water, refuse disposal and other utilities and services supplied to the
Property, unless LESSOR elects to include the cost of any or all of such
utilities and services as a Shopping Center Operating Cost as defined in
Section 2.8. LESSEE shall pay such charges within ten (10) days of
notification of the amount by the LESSOR. LESSOR reserves the right to install
and maintain, at LESSOR'S sole expense, separate meters for any public utility
servicing the Property for which a separate meter is not presently installed.
LESSEE may also elect, at LESSEE's sole expense, to
-4-
install and maintain separate meters for any public utility servicing the
Property for which a separate meter is not presently installed.
2.6 COST OF MAINTAINING PROPERTY. LESSOR shall maintain and repair the
Property in a good, clean and presentable condition and state of repair as
provided in Section 4.6 below, and LESSEE shall pay to LESSOR, as Additional
Rent, sixty six and 66/100 percent (66.66%) of the cost of maintaining and
repairing the Property, with LESSOR to pay the remaining thirty three and
34/100 percent (33.34%) of the cost of maintaining and repairing the Property;
provided that the cost of maintaining the Property under this section shall not
include costs or expenses which are an Operating Cost as defined in Section 2.8
below.
2.7 LESSEE'S PRO RATA SHARE OF OPERATING COST. LESSEE will also pay to
LESSOR, as further Additional Rent, a proportionate share of the Shopping
Center's Operating Cost (hereinafter defined). LESSOR and LESSEE hereby agree
for purposes of this Lease that LESSEE'S proportionate share ("Proportionate
Share") of such Shopping Center's Operating Costs is 7.28%. Notwithstanding
the foregoing, if during the Lease Term LESSOR permits any tenant or parcel
owner in the Shopping Center to perform any item of Shopping Center Operating
Cost for its sole benefit and at its sole expense in lieu of LESSOR'S
performance thereof (which Shopping Center Operating Cost item is typically
provided by LESSOR to all tenants of the Shopping Center and the cost of which
would be included in Shopping Center Operating Cost pursuant to Section 2.7),
then LESSOR shall have the right, but not the obligation to equitably allocate
the Shopping Center Operating Cost of such specific Shopping Center Operating
Cost item so that only those tenants in the Shopping Center that directly or
indirectly benefit from such Shopping Center Operating Cost item shall pay such
Shopping Center Operating Cost (such tenants shall be hereinafter referred to
as "Cost Pool Tenants."). In the event of a change in the square footage of
the Shopping Center, LESSEE's Proportionate Share of the Operating Cost shall
be recalculated on the basis of 16,961 square feet (which LESSOR and LESSEE
agree represents the square footage of the building demolished by LESSOR as
part of the build-to-suit improvements required under Article 3 hereof) to the
square footage of the entire Shopping Center.
2.8 OPERATING COST DEFINED. For the purpose of this Article 2, the term
"Operating Cost" means the total cost and expense incurred in connection with
the operation, repair, management, maintenance and replacement (provided,
however, if the benefit or useful life of any such repair or replacement
extends beyond the Lease Term, the useful life of such repair or replacement
shall be prorated over the remaining portion of the Lease Term, and LESSEE
shall be liable only for that portion of the cost which is applicable to the
Lease Term) of all Common Areas within the Shopping Center including, without
limitation, general maintenance and repair of all improvements; expenses
incurred by LESSOR under Section 4.6(A) hereof; gardening and landscaping;
snow, water and ice removal and control; security services; liability, property
damage and all other insurance carried by LESSOR under Section 6.2 with types
of coverage and in amounts determined by LESSOR; repairs; asphalt repairs,
resurfacing and striping; painting of improvements; servicing of common grease
interceptors; holiday decorations; snow and ice removal; utilities serving the
improvements and Common Areas; sanitary control; pest control; signage
operation, repair and replacement costs; removal of trash, rubbish, garbage and
other refuse; reasonable reserves for replacements and repairs; a property
management fee consistent with prevailing rates charged in the industry (not to
exceed five percent (5%) of gross Shopping Center
-5-
rents); bookkeeping; advertising and promotional fees; Real Property Taxes; all
personal property taxes assessed for any reason on the personal property used
in connection with the Shopping Center; costs of equipment and machinery used
to maintain or operate the Common Areas and any depreciation of the cost
thereof (including financing); and the cost of personnel to implement such
services, to direct parking, and to police the Common Areas.
Notwithstanding the foregoing, in no event shall the following items be
included as an Operating Cost: items for which the responsibility of repairing
or maintaining or replacement is the direct responsibility of a particular
tenant under their respective lease with LESSOR, amounts reimbursed by
insurance proceeds, or warranties; utilities or other expenses paid directly by
tenants to suppliers; ground rents; payments on any mortgage, or deed-of-trust;
leasing commissions; the cost of negotiating or enforcing leases of other
tenants; fines, penalties, and late fees or similar costs incurred by LESSOR;
depreciation; costs of or arising from LESSOR'S charitable or political
contributions; costs, including but not limited to attorneys' fees associated
with the operation of the business of the partnership or entity that
constitutes LESSOR as the same are distinguished from the costs of operation of
the Shopping Center, including partnership accounting and legal matters, costs
of defending any lawsuits with any mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of LESSOR'S interest in the Shopping
Center or any part thereof, costs of any disputes between LESSOR and its
employees, disputes of LESSOR with Shopping Center management or personnel, or
outside fees paid in connection with disputes with other tenants; costs
incurred in removing and storing the property of former tenants or occupants of
the Shopping Center; lease "takeover" expenses, including, but not limited to,
the expenses incurred by LESSOR with respect to space located in another
building of the Shopping Center of any kind or nature in connection with the
leasing of space in the Shopping Center; costs incurred in connection with the
original construction of the Shopping Center, or; any costs, fees, dues,
contributions or similar expenses for industry associations or similar
organizations.
2.9 COLLECTION OF THE OPERATING COST. LESSOR shall have the right to
collect LESSEE'S Proportionate Share (as defined in Section 2.7) of Operating
Cost and all other Additional Rent provided for under this Article 2 including,
without limitation, insurance premiums and Real Property Taxes, on a monthly
basis. Such amounts shall be based on LESSOR'S reasonable estimate of the
costs, charges or premiums next due, and shall be paid by LESSEE as Additional
Rent upon the basis and at the times described herein. LESSOR shall provide to
LESSEE a yearly expense estimate statement (hereinafter "Estimate Statement")
which shall set forth LESSOR'S reasonable estimate of the total amount due from
Tenant for the current or next ensuing Lease Year for Lessee's Proportionate
Share of the Operating Cost. LESSEE shall pay to LESSOR with each installment
of Minimum Monthly Rent an amount equal to one-twelfth (1/12th) of the
estimated amount due from LESSEE as set forth in the Estimate Statement. At
any time during any Lease Year, LESSOR may provide a new Estimate Statement to
Tenant indicating any additional amount due from LESSEE and LESSEE agrees to
pay such amount to LESSOR within fifteen (15) days after notification of the
amount of the deficiency. LESSEE'S failure to pay such deficiency to LESSOR
within such fifteen (15)-day period shall constitute a breach of this Lease and
entitle LESSOR to any and all remedies available under this Lease and
applicable law. Such estimated payments shall be paid to LESSOR with no
obligation to pay the LESSEE interest thereon. Should LESSEE dispute any
amount billed to LESSEE as Lessee's Proportionate Share of the Operating Cost,
LESSEE may withhold the disputed portion of the
-6-
billing, and timely pay the undisputed portion. Upon notice of dispute, LESSOR
will expediently provide the information necessary to establish the legitimacy
of the disputed amount. Upon resolution, should it be determined that any
portion of the withheld amount was due to LESSOR, LESSEE shall immediately pay
to LESSOR said amount, together with interest at the rate of nine percent (9%)
per annum, from the date on which the payment was originally due. Within a
reasonable period of time after the end of each Lease Year hereunder, LESSOR
shall give to LESSEE a year-end statement (hereinafter "Annual Statement")
which shall indicate all of Lessee's Proportionate Share of the Operating Cost
and other amounts due from LESSEE hereunder for the previous Lease Year, and
the amounts paid by LESSEE relating thereto. If the amount paid by LESSEE is
less than the amount owed by LESSEE, LESSEE agrees to pay such deficiency to
LESSOR within fifteen (15) days after receipt of the Annual Statement. If the
amount paid by LESSEE for the prior Lease Year exceeds the amount required to
be paid by LESSEE, such overage shall be credited to amounts due from LESSEE
for the next Lease Year. If LESSEE defaults under this Lease, LESSOR may apply
any funds in the impound account to any obligation then due under this Lease
without waiving any other remedy available under the Lease or applicable law.
2.10 LESSEE'S RIGHT TO AUDIT OPERATING COSTS. LESSEE and its agents will
have the right to examine LESSOR'S books and records relating to the Operating
Cost, at LESSOR'S office, and after providing at least fifteen (15) days prior
written notice to LESSOR, according to this section so long as (a) there is no
breach of or event of default under the Lease at the time that the LESSEE
examines LESSOR'S books and records; (b) LESSEE has fully and promptly paid its
Rent, including Lessee's Proportionate Share of the Operating Cost; (c) LESSEE,
its agents and contractors agree that they will not divulge the contents of
LESSOR'S books and records, or the result of their examination; (d) LESSEE, its
agents and contractors agree that they will give LESSOR, at no cost, a copy of
their draft and final reports of their examination of LESSOR'S books and
records; (e) LESSEE requests the examination of LESSOR'S books and records
within one (1) year after receipt of the statement of the Operating Cost with
regard to which LESSEE wishes to examine LESSOR'S books and records; (f) LESSEE
has not examined LESSORS'S books and records within the twelve (12) months
preceding LESSEE'S request; and (g) LESSEE shall not have the right to examine
any books or records that contain trade secrets (i.e. leases of other tenants,
rent rolls, etc.). If LESSEE'S examination reveals that it has overpaid
Lessee's Proportionate Share of the Operating Cost, then the overpayment credit
will be applied to the next accruing Rent under the Lease. If LESSEE'S audit
indicates that it has overpaid Lessee's Proportionate Share of the Operating
Cost by more than five percent (5%), in addition to the rent credit provided in
this Section, LESSEE shall be entitled to a credit against the next accruing
Rent for the reasonable costs of the audit. Otherwise, the expense of LESSEE'S
audit shall be borne by LESSEE. LESSEE will not have the right to terminate
the Lease on account of an overpayment. If LESSEE'S examination reveals that it
has underpaid Lessee's Proportionate Share of the Operating Cost, then the
underpayment amount will be paid along with the next accruing Rent under the
Lease.
2.11 INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by LESSEE to
LESSOR which is not paid when due shall bear interest from the due date of such
amount at the lower of (i) ten percent (10%) per annum, or (ii) the maximum
legal interest rate permitted by law. However, interest shall not be payable
on late charges to be paid by LESSEE under this Lease. The payment of interest
on such amounts shall not excuse or cure any default by LESSEE under this
Lease.
-7-
ARTICLE 3
BUILD-TO-SUIT IMPROVEMENTS
3.1 IMPROVEMENTS TO THE PROPERTY. LESSOR will cause the existing building
located nearest the southwest corner of the Property (most recently leased by
Wynan's Furniture) to be demolished and will cause to be constructed
improvements on and adjacent to the Property consisting of a traffic control
signal on Xxxxx Xxxxxxxx Xxxxxx at the access point to the Property, paved
driveways for ingress and egress to adjacent property owned by LESSEE and the
remainder of LESSOR'S Shopping Center, parking areas, pedestrian walkways and
landscaping, consistent with the Preliminary Plans and Specifications which are
attached hereto as (Exhibit "B") and by this reference made a part hereof
(hereinafter "Improvements"). The Improvements shall conform to the
Preliminary Plans and Specifications (Exhibit "B"), unless modification is
necessary to comply with local building codes or other requirements of local
municipal authorities.
A. LESSEE and LESSOR have approved and agreed upon Preliminary Plans
and Specifications and Preliminary Cost Estimates for the Improvements to the
Property.
B. As soon as received from the contractor or designer, LESSOR shall
deliver to LESSEE copies of the Final Plans and Specifications and Working
Drawings (based upon the approved Preliminary Plans and Specifications and
Preliminary Cost Estimates) covering the construction of the driveway and other
Improvements that are a part of the Property. LESSOR shall obtain approval of
the Final Plans and Specifications and Working Drawings from all appropriate
governmental agencies, and after they have been approved a copy of them shall
be initialed and dated by the parties. LESSOR shall exercise due diligence in
attempting to obtain such approval.
X. XXXXXX shall construct the Improvements in accordance with the Final
Plans and Specifications and Working Drawings. LESSOR agrees to secure all
necessary permits for the construction. LESSOR agrees that such construction
shall be completed in a good xxxxxxx-like manner; that materials and
workmanship will be of such quality as is usual and customary in the Washoe
County, Nevada, area; that such construction shall be free of mechanic's liens;
that such construction shall comply with applicable building and safety codes
and comport with the Final Plans and Specifications as set forth above.
D. LESSEE shall pay sixty six and 66/100 percent (66.66%) of all
construction costs for said Improvements, or a maximum of $1,200,000.00,
whichever amount is lower. LESSOR agrees to be responsible for all remaining
costs of constructing said Improvements. LESSEE shall pay its share of the
construction costs in progress installments based on xxxxxxxx supported by
invoices or the terms of construction contracts.
E. Within 15 days after LESSOR notifies LESSEE that the Improvements
have been substantially completed and are available for inspection by Lessee,
whether or not LESSEE is then in possession of the Property, LESSEE shall
deliver to LESSOR a list of items that LESSEE deems it necessary under the
Final Plans and Specifications and Working Drawings that LESSOR completes or
corrects in order for the Property to be acceptable to LESSEE. LESSOR shall
immediately commence to complete or correct such items, except for items that
LESSOR disputes as not being within the scope of the Improvements. If LESSEE
does not deliver the list to LESSOR within the 15 day period, LESSEE shall be
-8-
deemed to have approved the Property and approved construction of the
Improvements as completed.
F. LESSEE'S taking possession of the Property and acceptance of the
Property shall not constitute a waiver of any claim under Section 3.1(E) or a
waiver of any warranty or of any defect in regard to workmanship or material of
the Improvements ("Construction Defect"). LESSEE shall have the period of time
contained within LESSOR'S warranty from the contractor within which to notify
LESSOR of any Construction Defect covered by said warranty. In the event of a
Construction Defect, it is LESSOR's duty to fully enforce all legal remedies to
achieve cure.
ARTICLE 4
USE OF PROPERTY
4.1 SIGNAGE. LESSEE shall pay for all signs and maintenance and removal
of said signs located or constructed on the Property. All sign design, color,
layout, graphics, location and size shall first be submitted to LESSOR for
approval prior to fabrication. All signs shall be constructed and installed by
contractors qualified to fabricate and install commercial signs. No signs
shall be installed until after LESSOR has approved the construction drawings
and specifications of the signs, including all connections. LESSOR agrees to
apply for any necessary permits or zoning changes for signs to be located or
erected on the Property, at LESSEE's expense. LESSEE shall maintain all signs
in a neat and attractive condition.
4.2 USE OF PROPERTY.
A. The Property shall be used by LESSEE solely for the purpose of
pedestrian and vehicle ingress and egress to the resort and casino located on
the adjacent real property and uses reasonably related or incidental thereto
and for landscaping features. LESSEE shall not use, or permit to be used, any
portion of the Property for any purpose other than those stated above.
X. XXXXXX shall maintain the Property in a clean and sanitary condition
and shall comply with all laws, health and policy requirements with respect to
the Property and appurtenances and agrees to hold LESSEE harmless from all
fines, penalties and costs for violations, or noncompliances by LESSOR of said
laws, requirements, or regulations, and from all liability arising out of any
such violations or noncompliance, unless said liability results from the
conduct of LESSEE.
C. LESSEE shall not permit upon the Property any unlawful acts, or any
condition, act or thing constituting a nuisance, nor do or permit any act which
shall annoy, harass, disturb or imperil others; and shall abide by all laws,
ordinances and regulations of the City of Reno, County of Washoe, the State of
Nevada, and the United States of America, including without limitation, the
Americans with Disabilities Act, 42 U.S.C. 12101-12213 (and any rules and
regulations, restrictions, guidelines, requirements or publications promulgated
or published pursuant thereto, collectively referred to as the "ADA") and
LESSEE agrees to hold LESSOR harmless from all fines, penalties and costs for
violations, or noncompliances by LESSEE, of said laws, requirements, or
regulations, and from all liability arising out of any such violations or
noncompliance.
D. LESSEE shall not use the Property for any purpose deemed hazardous
by any insurance company carrying insurance thereof.
-9-
4.3 HAZARDOUS MATERIALS.
A. INDEMNITY BY LESSEE. LESSEE shall not cause or permit any Hazardous
Material (as hereinafter defined) to be brought upon, kept, or used in or about
the Property by LESSEE, its agents, employees, contractors or invitees. If (i)
LESSEE breaches the obligations stated in the preceding sentence, (ii) the
presence of Hazardous Material on the Property or on or in the soil or ground
water under or adjacent to the Property caused or permitted by LESSEE, its
agents, employees, contractors or invitees results in contamination of the
Property or such soil or ground water, (iii) contamination of the Property or
such soil or ground water by Hazardous Material otherwise occurs for which
LESSEE is legally liable to LESSOR for damage resulting therefrom, or (iv)
contamination occurs elsewhere in connection with the transportation by LESSEE
of Hazardous Material to or from the Property, then LESSEE shall indemnify,
protect, defend and hold LESSOR harmless from any and all claims, judgment,
damages, penalties, fines, costs, expenses, liabilities or losses (including,
without limitation, sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the term of this
Lease as a result of such contamination. The foregoing obligation of LESSEE to
indemnify, protect, defend and hold LESSOR harmless includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, restoration or other response
work required by any federal, state, or local governmental agency or political
subdivision because of Hazardous Material present as a result of any action or
inaction on the part of LESSEE, its agents, employees, contractors or invitees
in any improvements constituting the Property or the soil or ground water on,
under or adjacent to the Property or elsewhere in connection with the
transportation by LESSEE of Hazardous Material to or from the Property.
Without limiting the foregoing, if the presence of any Hazardous Material on or
in the Property or the soil or ground water under or adjacent to the Property
caused or permitted by LESSEE, or its agents, employees, contractors or
invitees, results in any contamination of the Property, LESSEE shall promptly
take all actions at its sole expense as are necessary to return the Property or
such soil or ground water to the condition existing prior to the introduction
of any such Hazardous Material to the Property or to such soil or ground water.
B. INDEMNITY BY LESSOR. LESSOR shall not cause or permit any Hazardous
Material (as hereinafter defined) to be brought upon, kept, or used in or about
the Property by LESSOR, its agents, employees, contractors or invitees. As to
any contamination of the Property by Hazardous Material which exists as of the
Lease Commencement Date hereof or if (i) LESSOR breaches the obligations stated
in the preceding sentence, (ii) the presence of Hazardous Material on the
Property or on or in the soil or ground water under or adjacent to the Property
caused or permitted by LESSOR, its agents, employees, contractors or invitees
results in contamination of the Property or such soil or ground water, (iii)
contamination of the Property or such soil or ground water by Hazardous
Material otherwise occurs for which LESSOR is legally liable to LESSEE for
damage resulting therefrom, or (iv) contamination occurs elsewhere in
connection with the transportation by LESSOR of Hazardous Material; then LESSOR
shall indemnify, protect, defend and hold LESSEE harmless from any and all
claims, judgment, damages, penalties, fines, costs, expenses, liabilities or
losses (including, without limitation, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the term of this Lease as a result of such contamination. The foregoing
obligation of LESSOR to
-10-
indemnify, protect, defend and hold LESSEE harmless includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, restoration or other response
work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Material present as a result of any action or
inaction on the part of LESSOR, its agents, employees, contractors or invitees
in any improvements constituting the Property or the soil or ground water on,
under or adjacent to the Property or elsewhere in connection with the
transportation by LESSOR of Hazardous Material. Without limiting the
foregoing, if the presence of any Hazardous Material on or in the Property or
the soil or ground water under or adjacent to the Property caused or permitted
by LESSOR, or its agents, employees, contractors or invitees results in any
contamination of the Property, LESSOR shall promptly take all actions at its
sole expense as are necessary to return the Property or such soil or ground
water to the condition existing prior to the introduction of any such Hazardous
Material to the Property or to such soil or ground water.
C. HAZARDOUS MATERIAL DEFINED. As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, chemical, toxicant,
pollutant, contaminant, material or waste which is or becomes regulated by any
local governmental authority, the State of Nevada or the United States
Government for the protection of health or the environment. The term "Hazardous
Material" includes, without limitation, any material or substance that is (i)
defined as a "hazardous waste" under NRS 459.400 et seq. (Disposal of Hazardous
Waste) or NRS 459.700 et seq. (Transportation of Hazardous Waste); (ii)
petroleum; (iii) asbestos; (iv) designated as a "hazardous substance" pursuant
to Section 311 of the Water Pollution Control Act (33 U.S.C. 1321), (v) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation
and Recovery Act, 42 U.S.C. 6901 et seq. (42 U.S.C. 6903), (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq.
(42 U.S.C. 6901), (vii) defined as a "regulated substance" pursuant to
Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage
Tanks), 42 U.S.C. 6991 et seq., (viii) defined as a "hazardous chemical
substance or mixture" or "imminently hazardous chemical substance or mixture"
within the meaning of the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.,
(ix) defined as a "hazardous air pollutant" within the meaning of the Federal
Clean Air Act, 42 U.S.C. 7400 et seq., (x) defined as a "toxic pollutant" or
"oil or hazardous substance" within the meaning of the Federal Water Pollution
Control Act, 33 U.S.C. 1250 et seq., (xi) defined as a "contaminant" within the
meaning of the Safe Drinking Water Act, 42 U.S.C. 300i, or (xii) defined as a
"chemical known to the state to cause cancer or reproductive toxicity."
4.4 NO PARTNERSHIP. This Lease shall in no way be deemed to be or
considered evidence that a partnership or joint venture exists between LESSOR
and LESSEE.
4.5 COMPLIANCE WITH GOVERNMENT REGULATIONS AND REQUIREMENTS. LESSOR shall
make any and all such improvements, alterations, repairs or do any other act to
or upon the Property as shall be required by any applicable statute, law,
ordinance or regulation, including, but not limited to those relating to
environmental quality or hazardous waste, by any competent governmental
authority. The cost of any and all such improvements, alterations, repairs or
other acts shall be borne by LESSEE and LESSOR as provided in Section 2.6
above, except as otherwise provided in this Lease.
-11-
4.6 CONDITION OF PROPERTY; ALTERATIONS, REPAIRS AND MAINTENANCE.
A. LESSOR shall maintain and repair the Property in a good, clean and
presentable condition. Except for such items as are included in Section 2.8,
the cost of any and all such maintenance and repairs shall be borne by LESSEE
and LESSOR as provided in Section 2.6 above. LESSOR'S obligation to maintain
and repair the Property shall include the following:
i. The routine and ordinary maintenance of the landscaping,
irrigation system and grounds, including weed control and cleaning; and
ii. The routine and ordinary maintenance of the parking lot,
driveways and pedestrian walkways, including snow removal.
iii. Any major repair or replacement of the parking lot, driveways
and pedestrian walkways.
B. LESSEE shall not make any alterations or improvements to or upon the
Property without LESSOR'S prior written consent thereto, which consent shall
not be unreasonably withheld, provided that LESSEE may, from time to time, make
minor alterations to the Improvements with LESSOR'S consent. All alterations
and improvements shall be accomplished in a good workmanlike manner and in
strict compliance with all county and state ordinances, requirements and
regulations pertaining thereto.
C. LESSEE agrees to pay when due all sums of money for any labor,
services, materials or supplies, furnished to or for LESSEE on or about the
Property. LESSEE shall not allow or permit the filing or placement of any
materialman, mechanics or other liens upon the Property. In the event that
such a lien is filed, LESSEE will cause such lien to be fully discharged and
released. In the event LESSEE desires to contest any lien, LESSEE must post a
bond sufficient to discharge the lien. LESSEE agrees to indemnify LESSOR
against all liability, loss, damage, costs or expenses, including attorney's
fees, on account of claims, or liens for laborers or materialmen or others who
performed work or supplied materials or supplies to LESSEE. At least ten (10)
days before undertaking any alteration, improvement or construction permitted
by this section, LESSEE will notify LESSOR so that LESSOR may record a notice
of nonresponsibility with the County Recorder of Washoe County.
D. Upon the completion of any alterations or improvements, such
alterations and improvements to the Property shall become or remain a part of
the Property. Furnishings, equipment and trade fixtures of LESSEE, which are
not part of any building thereon, remain the LESSEE'S property and are excepted
from this clause and provision.
E. LESSEE shall return the Property to LESSOR at the expiration or
earlier termination of this Lease in good and sanitary order, condition and
repair, free of rubble and debris, broom clean, reasonable wear and tear
excepted. All damage to the Property caused by the removal of such trade
fixtures and other personal property that LESSEE is permitted to remove under
the terms of this Lease and/or such restoration shall be repaired by LESSEE at
its sole cost and expense prior to termination.
-12-
4.7 QUIET ENJOYMENT AND LANDLORD'S RIGHT OF ENTRY.
A. QUIET ENJOYMENT. If and so long as LESSEE shall pay the Rents
specified herein and observe and perform all covenants, agreements and
obligations required by it to be observed and performed hereunder, LESSEE shall
peaceably and quietly hold and enjoy the Property for the Term without
hindrance or interruption by LESSOR or any other person or persons lawfully or
equitably claiming by, through, or under LESSOR, subject, nevertheless, to the
terms and conditions of this Lease and the mortgages and other matters to which
this Lease is subordinate. LESSOR expressly reserves the right as to the
Shopping Center at any time to do, or permit to be done, any or all of the
following; add or remove buildings or structures; change the number and
location of buildings and structures; change building dimensions; change the
number of floors in any of the buildings or structures; enclose any mall; add
to, alter or remove partially or wholly any structure or structures used to
enclose any plaza area; change the identity and type of stores and tenancies
and the dimensions thereof; change the name of the Shopping Center in which the
Property is located; change the address or designation of the Property; provide
subterranean and multiple level parking decks; convert common areas into
leaseable areas; change the means of access to and egress from the Shopping
Center, except for the access driveway at the new traffic control signal on
Xxxxx Xxxxxxxx Xxxxxx which LESSOR shall not change or alter without LESSEE's
prior written consent; and expand or reduce the size of the Shopping Center;
provided, however, that no such changes shall deny or materially interfere with
the reasonable visibility of, ingress to, or egress from the Property and that
no heavy industrial use will be permitted by LESSOR within the Shopping Center,
including, but not limited to, truck and heavy equipment repair facilities.
B. RIGHT OF ENTRY. LESSOR, or LESSOR'S agents or representatives may
enter and be present upon the Property at any time for purposes of discharging
LESSOR's obligations hereunder to maintain and repair the Property.
4.8 INDEMNITY.
A. LESSEE, as a material part of the consideration to be tendered to
LESSOR, shall indemnify, defend, protect and hold harmless LESSOR against all
actions, claims, demands, damages, liabilities, losses, penalties, or expenses
of any kind which may be brought or imposed upon LESSOR or which LESSOR may pay
or incur by reason of injury to person or property or business, from whatever
cause, all or in any way connected with the acts and omissions of LESSEE, and
LESSEE'S use of the Property or breach of any provision of this Lease,
including without limitation any liability or injury to the person or property
or business of LESSEE, its agents, officers, employees or invitees. LESSEE
agrees to indemnify, defend and protect LESSOR, and hold it harmless from any
and all liability, loss, cost or obligation on account of, or arising out of,
any such injury or loss however occurring, including breach of the provisions
of this Lease and the negligence of the parties hereto. Nothing contained
herein shall obligate LESSEE to indemnify LESSOR against its own sole or gross
negligence or willful acts, for which LESSOR shall indemnify LESSEE.
X. XXXXXX, as a material part of the consideration to be tendered to
LESSEE, shall indemnify, defend, protect and hold harmless LESSEE against all
actions, claims, demands, damages, liabilities, losses, penalties, or expenses
of any kind which may be brought or imposed upon LESSEE or which
-13-
LESSEE may pay or incur by reason of injury to person or property or business,
all or in any way connected with the acts and omissions of LESSOR, and the
condition of the Property or the Improvements thereon or the condition of the
Shopping Center, including without limitation any liability or injury to the
person or property or business of LESSOR, its agents, officers, employees or
invitees. LESSOR agrees to indemnify, defend and protect LESSEE and hold it
harmless from any and all liability, loss, cost or obligation on account of, or
arising out of, any such injury or loss however occurring, including breach of
the provisions of this Lease and the negligence of the parties hereto. Nothing
contained herein shall obligate LESSOR to indemnify LESSEE against its own sole
or gross negligence or willful acts, for which LESSEE shall indemnify LESSOR.
4.9 RULES AND REGULATIONS.
A. LESSEE agrees as follows:
i. The plumbing facilities shall not be used for any other purpose
than that for which they are constructed, and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by LESSEE, who
shall, or whose employees, agents or invitees shall have caused it.
ii. LESSEE shall not burn any trash or garbage of any kind in or
about the Property or the Shopping Center.
iii. All public entrances and exits to the Property shall be kept
unobstructed and open to the public at all times.
iv. LESSEE shall not cause or permit any obnoxious or foul odors that
disturb the public or other tenants. Should such odors be evident, LESSEE
shall be required to take immediate steps to remedy the same upon written
notice from LESSOR.
X. XXXXXX reserves the right from time to time to amend or supplement
the foregoing rules and regulations, and to adopt and promulgate additional
rules and regulations applicable to the Property and Shopping Center.
Reasonable notice of such rules and regulations and amendments and supplements
thereto, if any, shall be given to the LESSEE.
C. LESSEE agrees to comply with all such rules and regulations upon
reasonable notice to LESSEE from LESSOR.
D. In the event any violation of any of the above rules and
regulations continues after five (5) days following notice to the LESSEE of
such violation, beginning on such fifth day LESSEE shall, in addition to any
and all other remedies of LESSOR provided in this Lease for default by LESSEE,
pay as liquidated damages, the sum of Two Hundred Fifty Dollars ($250.00) per
day for each violation for each day any such violation continues. The parties
hereto agree that the aforementioned sum is a reasonable amount as liquidated
damages, the actual damage caused by such conduct being extremely difficult to
measure.
-14-
ARTICLE 5
PARKING AND COMMON USE AREAS AND FACILITIES
5.1 CONTROL OF COMMON AREAS BY LESSOR. "Common Areas" means all areas,
space, equipment and special services provided by LESSOR (excluding the
Property) for the common or joint use and benefit of the occupants of the
Shopping Center, their employees, agents, servants, customers and other
invitees, including, without limitation, parking areas, access roads,
driveways, retaining walls, landscaped areas, truck service-ways or tunnels,
loading docks, pedestrian malls, courts, stairs, ramps and sidewalks, comfort
and first aid stations, and parcel pick-up stations. All Common Areas shall at
all times be subject to the exclusive control and management of LESSOR, and
LESSOR shall have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to the Common Areas. LESSOR
shall have the right to construct, maintain and operate lighting facilities on
all Common Areas and improvements; to police the same; from time to time to
change the area, level, location and arrangement of parking areas and other
facilities hereinabove referred to; to restrict parking by tenants, their
officers, agents and employees to employee parking areas; to enforce parking
charges only to the extent required by governmental or quasi-governmental
entities (by operation of meters or otherwise), with appropriate provisions for
free parking ticket validating by tenants; to close all or any portion of the
Common Areas or facilities to such extent as may, in the opinion of LESSOR'S
counsel, be legally sufficient to prevent a dedication thereof or the accrual
of any rights to any person or the public therein; to close temporarily all or
any portion of the parking areas or facilities: to discourage non-customer
parking: and to do and perform such other acts in and to said areas and
improvements as, in the use of good business judgment, the LESSOR shall
determine to be advisable with a view to the improvement of the convenience and
use thereof by tenants, their officers, agents, employees and customers.
LESSOR will operate and maintain the Common Areas in such manner as LESSOR, in
its sole discretion, shall determine from time to time. Without limiting the
scope of such discretion, LESSOR shall have the full right and authority to
employ all personnel necessary for the proper operation and maintenance of the
Common Areas and facilities.
5.2 USE OF COMMON AREAS. The use and occupation by LESSEE of the Property
shall include the use of the Common Areas in common with others entitled to the
use thereof, subject however to the terms and conditions of this Lease and to
reasonable rules and regulations for the use thereof as prescribed from time to
time by LESSOR. Notwithstanding any other provision of this Lease, LESSOR and
LESSEE agree that LESSEE shall have the right to use approximately 7.28% of the
parking areas within the Common Areas, which such parking areas shall be
designated by mutual agreement, for vehicle parking for the invitees, customers
and guests of the resort and casino operated by LESSEE, its successors, assigns
or affiliates on the adjacent real property.
ARTICLE 6
INSURANCE
6.1 LIABILITY INSURANCE. During the Lease Term, LESSEE shall maintain a
policy of commercial general liability insurance, insuring LESSEE against
liability resulting out of the ownership, use, occupancy or maintenance of the
Property, the sidewalks in front of the Property, and the business operated by
LESSEE and any subtenants of LESSEE on the Property. The initial amount of
such insurance shall be at least TWO Million Dollars
-15-
($2,000,000.00) combined single limit bodily injury, property damage and
personal injury, and shall be subject to periodic increase based upon
inflation, increased liability awards, recommendations of professional
insurance advisers, and other relevant factors. However, the amount of such
insurance shall not limit LESSEE's liability nor relieve LESSEE of any
obligation hereunder. The policy shall name LESSOR as an additional insured.
In addition LESSEE, at LESSEE'S expense, shall carry adequate workers'
compensation insurance coverage and provide written evidence thereof to LESSOR.
LESSEE shall pay all premiums for the general liability insurance policy
covering the Property prior to delinquency.
6.2 HAZARD AND RENTAL INCOME INSURANCE. During the Lease Term, LESSOR
shall maintain policies of insurance covering loss of or damage to the Shopping
Center improvements, including the Improvements to the Property, in the amount
of its full replacement cost, excluding LESSEE'S trade fixtures and personal
property. Such polices shall provide protection against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, and may include endorsements or coverage for special extended perils
(special form), sprinkler leakage, inflation guard, and any other perils
(including flood and earthquake), which Landlord deems necessary. LESSEE
shall, at LESSEE'S expense, maintain such primary or additional insurance on
its fixtures, equipment and personal property as LESSEE deems necessary to
protect its interest. During the Lease Term, LESSOR shall also maintain as an
Operating Cost a rental income insurance policy, with loss payable to LESSOR in
an amount equal to one year's Minimum Monthly Rent (as adjusted periodically),
plus estimated Real Property Taxes and insurance premiums. Tenant shall not do
or permit to be done anything which invalidates any such insurance policies.
If said insurance policies cover improvements or real property other than the
Shopping Center, LESSOR shall also deliver to LESSEE a statement of the amount
of the premiums applicable to the Property showing, in reasonable detail, how
such amount was computed. If the Lease Term expires before the expiration of
the insurance policy period, LESSEE'S liability for insurance premiums shall be
prorated on an annual basis. LESSEE shall be liable for its pro rata share of
the payment of any deductible amount under LESSOR'S insurance policies as an
item of Operating Cost.
6.3 INCREASE IN FIRE INSURANCE PREMIUM. LESSEE agrees that it will not
keep, use, manufacture, assemble, sell or offer for sale in or upon the
Property any article which may be prohibited by the standard form of fire
insurance policy. LESSEE agrees to pay any increase in premiums for fire and
extended coverage insurance that may be charged during the Term of this Lease
on the amount of such insurance which may be carried by LESSOR on the Property,
resulting from the acts or omission of the LESSEE, its agents, servants or
employees, or the use or occupancy of the Property by the LESSEE or from the
type of materials or products stored, manufactured, assembled or sold by LESSEE
in the Property, whether or not LESSOR has consented to the same. In
determining whether increased premiums are the result of LESSEE'S use of the
Property, a schedule, issued by the organization making the insurance rate on
the property, showing the various components of such rate, shall be conclusive
evidence of the several items and charges which make up the fire insurance rate
on the Property.
6.4 WAIVER OF SUBROGATION. LESSOR and LESSEE 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 loss or damage
occasioned to such waiving party or its property or the property of others
-16-
under its control, to the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which either may have in
force at the time of such loss or damage. LESSOR and LESSEE shall, upon the
policies of insurance required under this Lease, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
ARTICLE 7
OPTION TO PURCHASE
7.1 PURCHASE OPTION. LESSOR hereby grants to LESSEE an option to purchase
(hereinafter "Purchase Option") the Property subject to the restrictions set
forth in Section 7.6(C)(i), together with the Easements described in Section
7.6(e)(ii), (collectively, the "Property Interests") at the expiration of the
third and final five (5) year Renewal Term of this Lease Agreement as provided
in Section 1.4, as specifically provided in this Article.
7.2 EXERCISE OF PURCHASE OPTION. LESSEE may exercise the Purchase Option
by delivering written notice (hereinafter "Exercise Notice") to LESSOR at least
one hundred and twenty (120 ) days prior to the expiration date of the third
and final Renewal Term of this Lease as provided in Section 1.4, but not before
one hundred and eighty (180) days prior to expiration of said third Renewal
Term of this Lease. LESSEE may only exercise the Purchase Option in the event
that LESSEE has properly exercised all three (3) options to extend and renew
the Lease as provided in Section 1.4 and is not in default under this Lease at
the time thereof. In the event LESSOR sells, transfers or assigns its interest
in the Shopping Center or its interest is acquired by any beneficiary of a deed
of trust or purchaser at a foreclosure sale during the Term of this Lease and
prior to LESSEE'S exercise of the Purchase Option as otherwise provided herein,
at LESSEE'S election the Purchase Option will accelerate and LESSEE may
exercise the Purchase Option by delivering written notice to the buyer,
transferee, assignee or other successor to LESSOR's interest in the Shopping
Center within ninety (90) days of LESSEE receiving notice of the sale,
transfer, assignment or other acquisition of LESSOR's interest in the Shopping
Center. In the event that LESSEE elects to accelerate the Purchase Option as
provided herein as the result of a sale, transfer, assignment or other
acquisition of LESSOR'S interest in the Property, the Purchase Price for the
Property Interests, as defined and determined in Section 7.5 below, shall be
adjusted and increased by the amount which represents the unamortized value of
the building demolished by LESSOR as part of the build-to-suit improvements
required under Article 3 hereof as set forth on Schedule 1 attached hereto as
of the date of the Closing of the purchase of the Property Interests. The value
of said demolished building shall be amortized in equal annual prorata amounts
over thirty (30) years commencing on the Commencement Date. In the event
LESSOR sells, transfers or assigns its interest in the Shopping Center or its
interest is acquired by any beneficiary of a deed of trust or purchaser at a
foreclosure sale during the Term of this Lease and LESSEE does not elect for
the Purchase Option to accelerate, this Lease and the Purchase Option will
continue in full force and effect in accordance with their terms. In the event
the Purchase Option is not accelerated and is exercised by LESSEE during the
third and final Renewal term of the Lease, at which time the value of the
demolished building will have been fully amortized as provided herein, no
adjustment will be made on account of said demolished building. The date on
which the Exercise Notice is delivered to LESSOR or the person or entity
entitled thereto hereunder shall be the "Exercise Date."
-17-
7.3 FAILURE TO EXERCISE. In the event LESSEE shall fail to exercise the
Purchase Option as provided herein, this Purchase Option shall terminate, and
except as otherwise provided hereunder, the parties shall have no further
rights or obligations in relation to this Purchase Option. Upon termination of
the Lease, LESSEE shall have no obligation to restore the Property to its
condition prior to the build-to-suit improvements made pursuant to Article 3
hereof.
7.4 EXERCISE IRREVOCABLE. Unless LESSEE delivers to LESSOR a written
rescission notice on or before the expiration of 10 business days after the
final determination of the Purchase Price pursuant to the procedure set forth
in Section 7.5, the exercise of the Purchase Option shall be irrevocable and,
after exercise of the Purchase Option and expiration of such 10 business day
period, LESSEE shall be obligated to purchase the Property on the terms
provided herein, subject to satisfaction of all closing conditions.
7.5 PURCHASE PRICE. The total purchase price for the Property Interests
shall be payable in cash at Closing (as hereinafter defined.) The purchase
price shall be determined following LESSEE's exercise of the Purchase Option.
The purchase price of the Property Interests (hereinafter "Purchase Price")
shall be determined by using the valuation procedure (hereinafter "Valuation
Procedure") set forth in this Section 7.5. Within five (5) business days of
the Exercise Date, LESSEE's independent Committee of the Board of Directors (or
if LESSEE is a subsidiary of Monarch Casino & Resort, Inc., Monarch's committee
of independent Board of Directors will perform the duties required by this
paragraph) shall order a Member Appraisal Institute (hereinafter "M.A.I.")
appraisal of the Property Interests to be conveyed (hereinafter "Valuation.")
Within five (5) business days of the Exercise Date, LESSOR shall commence the
preparation of a separate Valuation of the Property Interests. If each
Valuation is within ten percent (10%) of the other, the average of the two (2)
Valuations shall be determined and said average will be the Purchase Price. If
the Valuations differ by more than ten (10) percent, the two (2) M.A.I.
appraisers shall select a third (3rd) M.A.I. appraiser so as to produce a third
(3rd) Valuation of the Property Interests. From the total of three (3)
Valuations, the two (2) closest Valuations shall be averaged and said average
shall be the Purchase Price. Any signage located on the Property which was
installed at LESSEE's expense shall not be included or considered in
determining the Valuation of the Property Interests for purposes of
establishing the Purchase Price under this Section. The Purchase Price as
determined under this Section, in addition, shall be adjusted and decreased by
the amount which LESSEE can demonstrate that it paid for improvements, except
signage, to the Property during the five (5) year period immediately preceding
the Exercise Date.
7.6 CLOSING.
A. DATE AND PLACE. The Closing of the sale of the Property Interests
by LESSOR to LESSEE (the "Closing") shall occur not later than one hundred and
twenty (120) days after the Exercise Date.
B. ESCROW AGENT. LESSEE shall elect and identify the Escrow Agent to
be utilized for the Closing.
C. SELLER'S OBLIGATIONS AT CLOSING. At the Closing, LESSOR shall
deliver, or cause to be delivered, to LESSEE, the following:
-18-
x. Xxxxx Bargain and Sale Deed. LESSOR shall execute and deliver to
Escrow Agent for recording a Grant, Bargain and Sale Deed in form and content
acceptable to LESSEE and LESSOR, fully executed and acknowledged by LESSOR,
conveying fee simple title to the Property to LESSEE, excluding water rights,
free and clear of any and all liens or encumbrances. LESSOR and LESSEE agree
that said Grant, Bargain and Sale Deed shall contain a restriction that no
buildings or habitable structures shall be constructed or erected on the
Property and that the Property shall be used exclusively for landscaping
features and related improvements, driveways and pedestrian walkways for
ingress, egress and regress to and from the adjacent public streets, traffic
signal and the adjacent parcel to the south of the Property. The Property as
conveyed by LESSOR to LESSEE by said Grant Bargain and Sale Deed shall be a
separate legal parcel, which separate legal parcel shall be created by LESSOR
at LESSOR'S sole cost and expense.
ii. Easement. LESSOR shall execute and deliver to Escrow Agent for
recording a Deed or other instrument, in form and content acceptable to LESSEE
and LESSOR, fully executed and acknowledged by LESSOR, conveying and granting
to LESSEE, for the benefit of LESSEE and its tenants, employees, agents,
customers, and invitees, and for the benefit of the Property being purchased by
and conveyed to LESSEE, a non-exclusive easement appurtenant to said Property,
for the purposes of ingress, egress and regress by pedestrians and vehicular
traffic to and from any portion of the Shopping Center and the adjacent public
streets, over and across the Common Areas of the Shopping Center, as such are
constituted from time to time (LESSOR to ensure that said Common Areas remain
adequate to continue to afford LESSEE ingress and egress over and across the
Shopping Center), and for LESSEE'S use of the Common Areas of the Shopping
Center in common with others entitled to the use thereof, subject to the
reasonable rules and regulations for the use thereof as prescribed from time to
time by LESSOR, which easement shall include the right to use approximately
7.28% of the parking areas within the Common Areas for vehicle parking as
provided in Section 5.2. This easement shall obligate LESSEE to continue to
pay LESSOR Lessee's Proportionate Share of the Shopping Center's Operating
Costs provided in Sections 2.7, 2.8, 2.9 and 2.10 hereof, the terms of which
shall be included within said easement. This easement to be granted by LESSOR
to LESSEE shall run with the land and shall be binding upon each and all of the
owners of any part of the Shopping Center and Property and upon all persons
claiming under them.
iii. Owner's Title Policy. LESSOR shall cause the Escrow Agent to
issue and deliver to LESSEE an ALTA Standard coverage owner's policy of title
insurance ("Owner's Title Policy") in the amount of the Purchase Price,
insuring that LESSEE is owner of the Property Interests (including the non-
exclusive easement burdening the Shopping Center as described in Section
7.6(C)(ii) above) subject only to exceptions approved by LESSEE at the
commencement of the Lease as provided in Section 1.6, reasonable easements for
the development and improvement of the Shopping Center, non-delinquent taxes
and assessments and the standard printed exceptions included within such an
Owner's Title Policy.
iv. Other Instruments. LESSOR shall execute and deliver such other
documents as are customarily executed in the State of Nevada in connection with
the conveyance of real property, including all required closing statements,
releases, affidavits, evidences of authority to execute the documents, and any
other instruments that may be reasonably required by the Escrow Agent.
-19-
v. Possession. LESSOR shall deliver possession of the Property to
LESSEE at Closing.
vi. Failure of Closing Conditions. In the event LESSOR fails to
perform or satisfy any of its obligations at Closing on or before Closing,
LESSEE shall at any time thereafter have the right to terminate its exercise of
the Purchase Option and withdraw from this purchase transaction, by written
notice to LESSOR. Any such election by LESSEE to terminate the Purchase Option
shall release LESSEE from all obligations under this Purchase Option, but shall
not release LESSOR from liability for breach of this Lease, if any.
D. LESSEE'S OBLIGATIONS AT CLOSING.
i. Payment of the Purchase Price. At the Closing, LESSEE shall pay
the Purchase Price in cash (or by Certified Check, Cashier's Check, wire
transfer of funds into a local bank account indicated by LESSOR, all of which
shall constitute "cash" for purposes of this Option), subject to any
adjustments for prorations or other credits provided for in the Purchase
Option.
ii. Easement. LESSEE shall execute and deliver to Escrow Agent for
recording a Deed or other instrument, in form and content acceptable to LESSOR
and LESSEE, fully executed and acknowledged by LESSEE, conveying and granting
to LESSOR, for the benefit of LESSOR and its tenants, employees, agents,
customers, and invitees and the customers, employees, agents and invitees of
such tenants, and for the benefit of the Shopping Center, a non-exclusive
easement appurtenant to said Shopping Center, for the purposes of ingress,
egress and regress of pedestrians and vehicular traffic to and from the
adjacent public streets, over and across the Property, as such is constituted
from time to time; provided that the Property will remain adequate to continue
to afford LESSOR ingress and egress over and across the Property. This
easement to be granted by LESSEE to LESSOR shall run with the land and shall be
binding upon each and all of the owners of any part of the Property and
Shopping Center and upon all persons claiming under them.
iii. Other Instruments. LESSEE shall execute and deliver such other
documents as are customarily executed in the State of Nevada in connection with
the conveyance of real property, including all required closing statements,
releases, affidavits, evidences of authority to execute the documents, and any
other instruments that may be reasonably required by the Escrow Agent.
E. PRORATIONS. All real estate taxes and interest on assessments
relating to the Property for the year of the Closing shall be prorated as of
the date of Closing between LESSOR and LESSEE. LESSEE shall take title to the
Property subject to any outstanding unpaid assessments. If the amount of taxes
for that year are not known at the time of Closing, the prorations shall be
based on an estimate of the taxes for the year of Closing, and when the tax
information becomes available, LESSOR of LESSEE may request reimbursement from
the other party for any excess amount charged to that party at the Closing.
Likewise, any other amounts normally prorated between sellers and purchasers,
if any, shall be prorated between LESSOR and LESSEE as of the date of Closing.
F. CLOSING COSTS. LESSOR and LESSEE each agree to pay the following
costs at Closing:
-20-
i. Paid by LESSOR. LESSOR agrees to pay the cost of preparing the
Grant, Bargain and Sale Deed; the premium for the Owner's Title Policy; the
real property transfer taxes or documentation taxes; the cost of preparing and
recording any releases and other documents necessary to convey the Property
Interests in accordance with this Option; one-half (1/2) of any escrow or
closing fees charged by the Escrow Agent; LESSOR'S attorney's fees and any
other similar closing costs customarily paid by a seller of real property.
ii. Paid by LESSEE. LESSEE agrees to pay the recording fee for the
Grant, Bargain and Sale Deed; one-half (1/2) of any escrow or closing fees
charged by the Escrow Agent; LESSEE'S attorney's fees and any other similar
closing costs customarily paid by a purchaser of real property.
ARTICLE 8
ASSIGNMENT OR SUBLETTING AND PLEDGING.
8.1 LESSORS CONSENT REQUIRED.
A. LESSEE may not assign, transfer or convey any of its rights or
liabilities under this Lease, to any third person or entity, without the prior
written consent of LESSOR, which consent shall not be unreasonably withheld.
B. LESSEE may not, under any circumstances, sublet or underlet the
Property, or any part thereof, without the prior consent of LESSOR.
C. LESSEE shall reimburse LESSOR as additional rent for LESSOR'S
reasonable costs and attorneys' fees incurred in conjunction with the
processing and documentation of any proposed assignment or subletting of the
Property, whether or not consent is granted.
D. LESSEE may, however, pledge, hypothecate or otherwise apply its
interests in this Lease Agreement as collateral for loans, which shall not
constitute a transfer or assignment subject to the provisions of this Article.
E. Notwithstanding Sections 8.1(A) and 8.1(B) or any other provision of
this Lease to the contrary, Lessee may assign, transfer or sublease
(collectively, a "Transfer") all or any part of its rights and obligations
under the Lease or in the Property to an Affiliate of Lessee without Lessor's
consent; provided, however, that Lessee shall not be released from liability
under this Lease in connection with a Transfer except as otherwise provided in
Subsection F below. An "Affiliate of Lessee" means any person or entity
directly or indirectly controlling, controlled by or under common control with,
Lessee. For purposes of this definition, the terms "controlling," "controlled
by" and "under common control with" shall mean the possession, whether direct
or indirect, of the power to direct or cause the direction of the management
and policies of a person or entity, whether through the ownership or control of
voting securities, by contract or otherwise, or the power to elect at least
fifty percent (50%) of the directors, managers, members or persons exercising
similar authority with respect to such persons or entities.
F. If LESSOR consents and LESSEE transfers or assigns its interest in
the Property and Lease Agreement, LESSEE shall remain firstly liable for the
performance of this Lease and all of the terms and provisions hereof except
-21-
in conjunction with LESSEE's transfer of its resort and casino located on real
property adjacent to the Property as provided herein below. In no event shall
any such assignment or subletting relieve LESSEE from its full obligation to
perform each, every and all of the provisions of this Lease Agreement, except
that a transfer or assignment of LESSEE's interest in the Property and Lease
Agreement which is in conjunction with a sale or transfer of LESSEE's resort
and casino located on real property adjacent to the Property, shall relieve,
release and discharge LESSEE from liability and obligations under this Lease
from and after the effective date of the transfer or assignment.
ARTICLE 9
DEFAULTS: REMEDIES
9.1 COVENANTS AND CONDITIONS. LESSEE'S performance of each of LESSEE'S
obligations under this Lease is a condition as well as a covenant. LESSEE's
right to continue in possession of the Property is conditioned upon full
performance of all such conditions. Time is of the essence in the performance
of all covenants and conditions.
9.2 DEFAULTS. LESSEE shall be in material default under this Lease:
A. If LESSEE abandons or vacates the Property;
B. If LESSEE fails to pay Rent or any other charge required to be paid
by LESSEE, within 15 days of when due;
C. If LESSEE fails to perform any of LESSEE'S nonmonetary obligations
under this Lease for a period of thirty (30) days after written notice from
LESSOR; provided that if more time is required to complete such performance,
LESSEE shall not be in default if LESSEE commences such performance within the
thirty (30)-day period and thereafter diligently pursues its completion.
However, LESSOR shall not be required to give such notice if LESSEE'S failure
to perform constitutes a non-curable breach of this Lease. The notice required
by this Section is intended to satisfy any and all notice requirements imposed
by law on LESSOR prior to the commencement of an unlawful detainer action and
is not in addition to any such requirement;
9.3 DEFAULT BY LESSOR. LESSOR shall not be in default unless LESSOR fails
to perform obligations required of LESSOR within a reasonable time, but in no
event later than thirty (30) days after written notice by LESSEE to LESSOR and
to the holder of any first mortgage or deed of trust covering the Property
whose name and address shall have theretofore been furnished to LESSEE in
writing, specifying wherein LESSOR has failed to perform such obligation;
provided, however, that if the nature of LESSOR'S obligation is such that more
than thirty (30) days are required for performance, then LESSOR shall not be in
default if LESSOR commences performance within such thirty (30)-day period and
thereafter diligently prosecutes the same to completion. In the event LESSOR
fails to perform an obligation required of it hereunder in the time periods
allowed under this Section and following notice from LESSEE, LESSEE may, but
shall not be obligated to, perform any obligation of LESSOR under this Lease.
LESSEE shall be entitled to a credit against the next accruing rent for all
reasonable costs and expenses paid or incurred by LESSEE in performing LESSOR's
obligations as provided in this Section, including without limitation,
reasonable attorneys' fees incurred.
-22-
9.4 REMEDIES. On the occurrence of any default by LESSEE hereunder,
LESSOR may, at any time thereafter, with or without notice or demand and
without limiting LESSOR in the exercise of any right or remedy which LESSOR may
have:
A. Terminate LESSEE'S right to possession of the Property by any lawful
means, in which case this Lease shall terminate and LESSEE shall immediately
surrender possession of the Property to LESSOR. In such event LESSOR shall
have the immediate right to re-enter the Property and remove all persons and
property and such property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of LESSEE, all without service of
notice or resort to legal process and without being deemed guilty of trespass,
or becoming liable for any loss or damage which may be occasioned thereby; and
LESSOR shall be entitled to recover from LESSEE all damages incurred by LESSOR
by reason of LESSEE'S default, including (i) the worth at the time of the award
of all Minimum Monthly Rent, Additional Rent and other charges which were
earned or were payable at the time of the termination; (ii) the worth at the
time of the award of the amount by which the unpaid Minimum Monthly Rent,
Additional Rent and other charges which would have been earned or were payable
after termination until the time of the award exceeds the amount of such rental
loss that LESSEE proves could have been reasonably avoided; (iii) the worth at
the time of the award of the amount by which the unpaid Minimum Monthly Rent,
Additional Rent and other charges which would have been payable for the balance
of the Term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; and (iv) any other amount
necessary to compensate LESSOR for all the detriment proximately caused by
LESSEE'S failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom whether provided
by this Lease or allowed by applicable law, including, but not limited to, any
costs or expenses incurred by LESSOR in maintaining or preserving the Property
after such default, the cost of recovering possession of the Property, expenses
of reletting, including necessary renovation or alteration of the Property,
LESSOR'S reasonable attorneys' fees, and any real estate commissions or other
such fees paid or payable. As used in subparts (i) and (ii) above, the "worth
at the time of the award" is computed by allowing interest on unpaid amounts at
the rate of nine percent (9%) per annum, or such lesser amount as may then be
the maximum lawful rate. As used in subparts (i) and (ii) above, the "worth at
the time of the award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of the award,
plus one percent (1%). If LESSEE shall have abandoned the Property, LESSOR
shall have the option of (i) retaking possession of the Property and recovering
from LESSEE the amount specified in this Section 9.4(a), or (ii) proceeding
under Section 9.4(b);
B. Maintain LESSEE'S right to possession, in which case this Lease
shall continue in effect whether or not LESSEE shall have abandoned the
Property. In such event, LESSOR shall be entitled to enforce all of LESSOR'S
rights and remedies under this Lease, including the right to recover the Rent
as it becomes due hereunder. LESSEE acknowledges that LESSOR may continue the
Lease in effect after LESSEE'S breach and abandonment and recover Rent as it
becomes due;
C. Pursue any other remedy now or hereafter available to LESSOR under
the laws or judicial decisions of the state in which the Property is located.
-23-
9.5 THE RIGHT TO RELET THE PREMISES. Should LESSOR elect to re-enter, as
herein provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either terminate this Lease
or it may from time to time without terminating this Lease, make such
alterations and repairs as may be necessary in order to relet the Property, and
relet the Property or any part thereof for such term or terms (which may be for
a term extending beyond the Term of this Lease) and at such rent or rents and
upon such other terms and conditions as LESSOR in its sole discretion may deem
advisable; upon each such reletting, all rent received by the LESSOR from such
reletting shall be applied, first, to the repayment of any indebtedness other
than rent due hereunder from LESSEE to LESSOR; second, to the payment of any
costs and expenses of such reletting, including brokerage fees and attorneys'
fees and of costs of such alterations and repairs; third, to the payment of
rent due and unpaid hereunder, and the residue, if any, shall be held by LESSOR
and applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month are
less than that to be paid during that month by LESSEE hereunder, LESSEE shall
pay any such deficiency to LESSOR. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of said Property by LESSOR
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to LESSEE or unless the termination
thereof be decreed by a court of competent jurisdiction.
9.6 LANDLORD'S RIGHT TO CURE. LESSOR may, but shall not be obligated to,
cure any default by LESSEE after complying with the notice provisions herein
set forth, and whenever LESSOR elects, all costs and expenses paid or incurred
by LESSOR in curing such default, including without limitation reasonable
attorneys' fees, shall be so much Additional Rent due on demand with interest
as provided in Article 2.
9.7 CUMULATIVE REMEDIES. LESSOR'S exercise of any right or remedy shall
not prevent it from exercising any other right or remedy.
9.8 LATE CHARGES. LESSEE hereby acknowledges that late payment by LESSEE
to LESSOR of Rent and other sums due hereunder will cause LESSOR to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult and costly to ascertain. Such costs include, but are not limited to,
processing, administrative and accounting charges, and late charges which may
be imposed on LESSOR by the terms of any mortgage or trust deed covering the
Property. Accordingly, if any installment of Rent or any other sum due from
LESSEE shall not be received by LESSOR or LESSOR'S designee within fifteen (15)
days after such amount shall be due, LESSEE shall pay to LESSOR a late charge
equal to ten percent (10%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the costs
LESSOR will incur as a consequence of late payment by LESSEE. Acceptance of
such late charge by LESSOR shall in no event constitute a waiver of LESSEE'S
default with respect to such overdue amount, nor prevent LESSOR from exercising
any of the other rights and remedies granted hereunder.
ARTICLE 10
DAMAGE TO PROPERTY; CONDEMNATION.
10.1 DAMAGE TO THE PROPERTY. In the event that the Property or Shopping
Center is totally or partially damaged or destroyed by fire or other casualty
or occurrence, LESSOR shall cause the damage to the Property to be repaired
-24-
and restored to the same condition as it was in immediately before such damage
or destruction. If (a) such damage results from a cause not insured, or (b)
the cost of repair or restoration exceeds the amount of insurance proceeds
received by LESSOR and available for restoration of the Property, and LESSEE
elects for the Property to be repaired or restored, LESSOR shall repair and
restore the Property and LESSEE shall pay sixty six and 66/100 percent and
(66.66%) of difference between the amount of insurance proceeds and the costs
of repair and restoration and LESSOR shall pay the remaining repair costs not
covered by insurance. LESSOR shall cause the Property to be rebuilt and
restored with all due diligence and, during any periods of reconstruction,
LESSOR shall use its best efforts and take all reasonable steps to provide
reasonable temporary access for vehicular and pedestrian ingress and egress to
LESSEE's adjacent parcel from South Virginia Street. During the time that the
repair or restoration is being completed, LESSEE'S Rent shall be abated for any
portion of the Property which cannot be used by LESSEE. In the event that the
repair and restoration cannot be completed to LESSEE's satisfaction, then
LESSEE may elect to terminate the Lease by giving written notice to the LESSOR.
If the time restoration exceeds six months, LESSEE may at its option terminate
the Lease.
10.2 CONDEMNATION OF PROPERTY. If any part or the whole of the Property
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purpose, and in the event that such partial taking or condemnation shall
render the Property not reasonably suitable for the uses of LESSEE, then LESSOR
shall use its best efforts and take all reasonable steps to make other property
within the Shopping Center available for LESSEE to lease for vehicular and
pedestrian ingress and egress to LESSEE's adjacent parcel. In the event of a
partial taking or condemnation which is not extensive enough to render the
Property unsuitable for the uses of LESSEE, then LESSOR shall with all due
diligence restore the Property to a condition comparable to its condition at
the time of such condemnation less the portion lost in the taking, and this
Lease shall continue in full force and effect. During the time that the
restoration is being completed or in the event that a portion of the land
constituting the Property is removed by the partial condemnation, LESSEE'S rent
shall be abated for any portion of the Property which cannot be used by LESSEE.
In the event that substitute property restoration of the Property cannot be
completed to LESSEE's satisfaction, then LESSEE may elect to terminate the
Lease by giving written notice to the LESSOR.
10.3 DISTRIBUTION OF CONDEMNATION AWARD. Any condemnation award or
payment shall be distributed in the following order: (a) first, to any ground
lessor, mortgagee or beneficiary under a deed of trust encumbering the
Property, the amount of its interest in the Property; (b) second, to LESSEE,
only the amount of any award specifically designated for loss of or damage to
LESSEE'S rights and interests in the Property and the LESSEE hereby assigns any
other rights which the LESSOR may have now or in the future to any other award
to the LESSOR; and (c) third, to LESSOR, the remainder of such award, whether
as compensation for reduction in the value of the leasehold, the taking of the
fee, or otherwise. LESSEE shall have the right to pursue its claim against the
condemning authority for any damages which it suffers in connection with any
eminent domain proceeding.
-25-
ARTICLE 11
ESTOPPEL CERTIFICATES, SUBORDINATION AND MORTGAGEE PROTECTION
11.1 ESTOPPEL CERTIFICATES. Within ten (10) days of request therefor by
LESSOR, LESSEE shall execute a written certificate, in the form presented by
LESSOR, acknowledging and certifying to matters requested by LESSOR, including
without limitation, the following; (a) that LESSEE is in full and complete
possession of the Property, such possession having been delivered by LESSOR or
its predecessor and accepted by LESSEE; (b) that any improvements required to
be furnished by LESSOR by the terms of this Lease have been completed in all
respects to the satisfaction of LESSEE; (c) that this Lease is in full force
and effect and has not been amended, modified, supplemented, or superseded
except as specifically noted; (d) that there is no existing default on the part
of LESSOR in the performance of any covenant, agreement or condition contained
in the Lease to be performed by LESSOR; (e) that the LESSEE does not have any
actual or pending claim against the LESSOR; (f) that no Rents or other charges
have been prepaid by LESSEE; and (g) that the addressee of said certificate may
rely on the representations therein made; and certifying as to the dates of
commencement and termination of the Term, the date on which Rents commenced to
accrue under this Lease, and the date through which Rents and other charges
hereunder have been paid. Commencement and termination dates of this Lease,
that it is in full force and effect, has not been modified (or if it has,
stating such modifications) and providing any other pertinent information as
LESSOR or their agent might reasonably request. Failure to comply with this
Article shall be a material breach of this Lease by LESSEE giving LESSOR all
rights and remedies under Article 10 hereof, as well as a right to damages
caused by the loss of a loan or sale which may result from such failure by
LESSEE.
11.2 FINANCIAL STATEMENTS. If LESSOR desires to finance or refinance the
Shopping Center, the Property, or any part thereof, LESSEE hereby agrees,
within ten (10) days of request therefor by LESSOR, to deliver to any lender
designated by LESSOR such financial statements of LESSEE, its guarantors and
its parent company, if any, as may be reasonably required by such party. Such
statements shall include the past three (3) years' financial statements of
LESSEE. All such financial statements shall be received by LESSOR in confidence
and shall be used only for the purposes herein set forth.
11.3 ATTORNMENT. LESSEE shall, in the event any proceedings are brought
for the foreclosure of, or in the event of exercise of the power of sale under
any mortgage or deed of trust made by LESSOR covering the Property, attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the LESSOR under this Lease.
11.4 SUBORDINATION/SUPERIORITY. The rights and interests of LESSEE under
this Lease shall be subject and subordinate to any mortgage, trust deed or deed
of trust that is or may hereafter by placed upon the Shopping Center, or any
part thereof containing the Property and to any and all advances to be made
thereunder and to the interest thereon and all renewals, amendments,
modifications, replacements and extensions thereof, if the mortgagee or
trustee or secured party named in such mortgage or trust deed or deed of trust
shall elect to subject and subordinate the rights and interests of LESSEE under
this Lease to the lien of its mortgage, trust deed or deed of trust and shall
agree by an instrument in form satisfactory to LESSEE and which recognizes the
priority of LESSEE's Purchase Option in writing to recognize this Lease in the
event of foreclosure, if and so long as LESSEE is not in default hereunder.
Any mortgagee or trustee of the Shopping Center or
-26-
any part thereof containing the Property may elect to give certain rights and
interests of LESSEE under this Lease priority over the lien of its mortgage,
trust deed, or deed of trust. In the event of either such election and upon
notification by such mortgagee or trustee to that effect to LESSEE, the rights
and interests of LESSEE under this Lease shall be deemed to be subordinate to
or have priority over, as the case may be, the lien of said mortgage or deed of
trust whether this Lease is dated prior to or subsequent to the date of said
mortgage or deed of trust. LESSEE shall, within ten (10) days following the
request of LESSOR or such secured party, execute and deliver whatever
instruments may be required for such purposes. Failure to do so shall
constitute an event of default and a material breach of this Lease.
11.5 MORTGAGEE PROTECTION. LESSEE agrees to give any mortgagee or trustee
of a deed of trust (hereinafter "mortgagee") of the Shopping Center, by
registered or certified mail, a copy of any notice of default served upon the
LESSOR by LESSEE, provided that prior to such notice LESSEE has been notified
in writing (by way of service on LESSEE of a copy of an Assignment of Rents and
Leases, or otherwise) of the address of such mortgagee. LESSEE further agrees
that if LESSOR shall have failed to cure such default within thirty (30) days
after such notice to LESSOR (or if such default cannot be cured or corrected
within that time, then such additional time as may be necessary if LESSOR has
commenced within such thirty days and is diligently pursuing the remedies or
steps necessary to cure or correct such default), then the mortgagee
shall have an additional thirty (30) days within which to cure or correct such
default (or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if such mortgagee has commenced
within such thirty days and is diligently pursuing the remedies or steps
necessary to cure or correct such default, including without limitation
commencement of foreclosure proceedings if necessary to effect such a cure).
Until the time allowed as aforesaid for the mortgagee to cure such default has
expired without cure, LESSEE shall have no right to, and shall not, terminate
this Lease on account of LESSOR'S default. This provision inures to the
express benefit of LESSOR
ARTICLE 12
SURRENDER AND HOLDOVER
12.1 SURRENDER OF PROPERTY AT TERMINATION OF LEASE. LESSEE shall, upon
the termination of this Lease, after the last day of the Term or any extension
thereof or upon any earlier termination of such Term, surrender and yield up to
LESSOR the Property and all improvements thereto in the condition in which it
was required to be kept under this Lease, and the LESSOR and LESSEE will have
no further obligations under this Lease, except the LESSEE'S obligation to pay
Rent for the period prior to the termination of this Lease and the LESSOR's and
LESSEE'S obligations on termination of this Lease for an event of default as
set forth herein. LESSOR shall upon the termination of this Lease, reconcile
the Additional Rents paid by LESSEE for Real Property Taxes under Section 2.3,
Utilities under Section 2.5, and the cost of maintaining the Property under
section 2.6, with the actual taxes paid and costs of Utilities and maintenance
incurred and shall make any refunds owing to LESSEE. Such reconciliation and
refund for Additional Rents shall not include Operating Costs, which shall be
reconciled as provided in Section 2.9.
12.2 HOLDING OVER. Any holding over after expiration hereof, with the
consent of LESSOR, shall be construed as a month-to-month tenancy in accordance
with the terms hereof, as applicable.
-27-
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 WAIVER. Any forbearance, failure or delay by LESSOR or LESSEE in
exercising any right, power or remedy hereunder shall not be deemed a waiver of
that right, power or remedy or any other right, power or remedy LESSOR or
LESSEE may have.
13.2 TIME OF ESSENCE. Time is of the essence to this Lease Agreement.
13.3 ATTORNEYS' FEES. If either party shall institute any action or
proceeding relating to the provisions of this Lease, or any default or breach
hereunder, then and in that event, the prevailing party shall be entitled to
reasonable expenses and attorneys' fees and disbursements incurred therein.
13.4 CORPORATE AUTHORITY. As LESSEE is a corporation, the individual
executing this Lease on behalf of said corporation shall represent and warrant
that he or she is duly authorized to execute and deliver this Lease on behalf
of said corporation in accordance with a duly adopted resolution of the Board
of Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. Further, LESSEE shall, within thirty (30) days after LESSOR'S
request, deliver to LESSOR a certified copy of a resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
Lease.
13.5 SUCCESSORS AND ASSIGNS. The terms, conditions and covenants of this
Lease shall be binding upon and shall inure to the benefit of each of the
parties hereto, its successors or assigns and shall run with the land; subject,
however, to the provisions hereinabove relating to assignment, conveying,
subletting and pledging this Lease or the Property.
13.6 REAL ESTATE BROKERS. LESSOR and LESSEE each represent and warrant to
the other party that it has not authorized or employed, or acted by implication
to authorize or employ, any real estate broker or salesman to act for it in
connection with this Lease. LESSOR and LESSEE shall each indemnify, defend and
hold the other party harmless from and against any and all claims by any real
estate broker or salesman whom the indemnifying party authorized or employed,
or acted by implication to authorize or employ, to act for the indemnifying
party in connection with this Lease.
13.7 SERVICE OF NOTICE. Except as otherwise provided herein, every
notice, approval, consent or other communication authorized or required by this
Lease shall be in writing and shall be deemed given forty-eight (48) hours
after deposit in the United States mail, postage prepaid, certified mail,
return receipt requested, and addressed to:
LESSOR: Biggest Little Investments, L.P.
c/o Maxum LLC
0000 Xxxx Xxxxx Xxxx Xxxxx 000
Xxxx, XX 00000
LESSEE: Golden Road Motor Inn, Inc.
Atlantis Casino and Resort
0000 X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000
Attn: Chief Executive Officer
-28-
13.8 ENTIRE AGREEMENT AND MISCELLANEOUS PROVISIONS.
A. The captions appearing in this Lease are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or
intent of such paragraphs of the Lease or in any way affect the Lease.
B. This Lease supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the lease and occupancy
of the Property and contains all of the covenants, agreements and other
obligations between the said parties in respect to the lease or occupancy of
the Property.
C. No waiver, alterations or modifications of this Lease or any
agreements in connection herewith shall be valid, unless in writing duly
executed by all parties.
D. This Lease is the result of negotiations between the parties and has
been agreed to by both LESSOR and LESSEE after prolonged negotiations and shall
not be construed against the party responsible for having it reduced to
writing.
E. This Lease is to be governed by and construed in accordance with the
laws of the State of Nevada as exist from time to time.
F. If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time, or to any
extent, be invalid or unenforceable, the remainder of the Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of the Lease shall be
valid and enforceable to the fullest extent permitted by law.
G. As a material inducement to LESSEE to enter this Lease, and in
consideration of the payment of Rent during the first 5 years of the Term,
LESSOR covenants that for a period of 5 years from the Commencement Date, no
non-restricted gaming operations (the "Restriction") may by conducted within
the Shopping Center by anyone other than LESSEE. At LESSEE's option prior to
the expiration of said 5 year period, LESSEE may purchase from LESSOR an
extension (the "Extended Restriction") of the prohibition on the conduct of
non-restricted gaming operations within the Shopping Center by anyone other
than LESSEE. The purchase price for the Extended Restriction shall be
determined by an independent appraisal of the value of the Extended Restriction
in the manner set forth for determination of the Purchase Price for the
Property Interests set forth in Section 7.5 above.
H. LESSEE may record against the Property and Shopping Center a
memorandum to be executed by LESSOR and LESSEE providing notice of: (i) the
existence of this Lease Agreement, (ii) LESSEE's rights to use the Common Areas
of the Shopping Center as provided in Section 5.2 hereof, (iii) LESSEE's
Purchase Option as provided in Article 7 hereof, and (iv) the Restriction and
the Extended Restriction as provided in Section 13.8 hereof.
-29-
LESSOR: LESSEE:
BIGGEST LITTLE INVESTMENTS, L.P. GOLDEN ROAD MOTOR INN, INC.,
a Delaware limited partnership a Nevada Corporation.
By:/s/Xxx Xxxxxx By:/s/ Xxx Xxxxxx
------------- --------------
Xxx Xxxxxx Xxx Xxxxxx
Its:Managing Member of Its: President
the General Partner
Dated: 01/29/04 Dated: 01/29/04
-00-
XXXXX XX XXXXXX )
) ss:
COUNTY OF WASHOE )
On this 29th day of January, 2004, before me a Notary Public, personally
appeared Xxx Xxxxxx who acknowledged to me that he/she executed the foregoing
instrument on behalf of Biggest Little Investments, L.P.
By: /s/XXXXXXXXX X. XXXXXX
----------------------
Xxxxxxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEVADA )
) ss:
COUNTY OF WASHOE )
On this 29th day of January, 2004, before me a Notary Public, personally
appeared Xxxxxx Xxxxxx who acknowledged to me that he/she executed the
foregoing instrument on behalf of Golden Road Motor Inn, Inc.
By: /s/ XXXXXXXXX X. XXXXXX
-----------------------
Xxxxxxxxx X. Xxxxxx
NOTARY PUBLIC
-31-
