LEASE AGREEMENT
BETWEEN
VALLEY RACING ASSOCIATION
AND
SHRP VALLEY LLC
LEASE AGREEMENT
This Lease ("Lease") is made this 3rd day of March, 1999 between
Valley Racing Association, a joint venture comprised of Ladbroke Racing
Texas Corporation, a Texas corporation and Ladbroke Racing Management Texas
Corporation, a Texas corporation ("Lessor")and SHRP Valley LLC ("Lessee").
If Lessor reorganizes as a corporate entity as described in Section 5(c) of
this Agreement any reference to Lessor in this Agreement shall include that
corporate entity.
1. Premises. Lessor, for and in consideration of the covenants and
agreements of the Lessee contained in this Lease hereby grants, demises and
leases to Lessee, and Lessee for and in consideration of the covenants and
agreements of the Lessor contained in this Lease and the Management
Agreement (defined in Section 4(d) of this Lease), hereby leases and takes
from Lessor, for the Rent and upon the terms and conditions provided in
this Lease, the following described Property:
(a) The land described in Exhibit "A" to this Lease
(collectively, the "Land"), together with all of the buildings,
improvements and fixtures on the Land, and all of Lessee's
improvements that are constructed in accordance with the terms of this
Lease (together the "Improvements") and all appurtenances and rights
relating to the Land and the Improvements, including also all interest
of Lessor in and to adjacent streets, alleys, easements, rights-of-way
and rights of ingress and egress to the Land and all other land owned
or claimed by Lessor that is adjacent, contiguous to or a part of the
Land, whether owned or claimed by deed, limitations or otherwise and
whether or not located inside or outside the metes and bounds
description of the Land or whether or not held under fence by Lessor
(the Land, Improvements, appurtenances and other rights are referred
to collectively as the "Premises").
(b) All of the Personal Property described on Exhibit "A-1" to
this Lease and all other equipment and personal property owned by
Lessor and located in, on or used in connection with the Premises
including, without limitation the right to use the name "Valley
Greyhound Race Park" and other names used for the Premises, sign
rights, all telephone numbers related to the operation of the
Premises, all keys and all goodwill relating to the Premises, all of
Lessor's right, title and interest in all water, waste water,
drainage, telephone and other utilities, utility lines, utility
connections, utility commitments, utility capacity and reservations,
and other rights, capital recovery charges and other fees paid or
deposits made by Lessor, and any reimbursements or other rights
belonging to Lessor which pertain to any utilities or utility services
provided, to be provided, or available to all or any part of the
Property (collectively the "Personal Property").
2. Use. Lessee may use the Premises and Personal Property for
conducting pari-mutuel racing operations pursuant to the pari-mutuel
greyhound race track license granted to Lessor by the Texas Racing
Commission (the "Commission") for Cameron County, Texas as more fully
described in the Management Agreement (the "License") and any and all other
uses which will not violate the terms of the License or otherwise prevent
Lessor from conducting pari-mutuel wagering at the Premises.
3. Term and Renewal Options.
(a) The term of this Lease ("Term") shall begin on the date of
this Agreement (the "Commencement Date") and terminate at midnight on
the last day of the 72nd calendar month after the Rent Commencement
Date (defined in Section 4(b) below), unless sooner terminated in
accordance with this Lease.
(b) Lessee shall have and is hereby granted a total of eight
successive options to extend the term of this Lease for any period of
time not exceeding six years for each option, upon the same terms,
covenants and conditions as are provided in this Lease, except that
the Base Rent shall be $1,000.00 per month. If Lessee shall elect to
exercise one or more of these options it shall do so by giving Lessor
written notice at least 180 days prior to the expiration of the
primary term, or at least 180 days prior to the then current option
term, and in that notice Lessee shall state the date to which it
elects to extend the Term. Any reference in this Lease to the "Term"
shall include any option term exercised in accordance with the terms
of this Lease.
4. Rent.
(a) Initial Rent. Unless Lessee terminates this Lease in
accordance with Section 5(b) below, Lessee shall pay to Lessor the sum
of $100,000.00 within 10 days after the Due Diligence Period expires.
(b) Base Rent. Subject to the terms and conditions provided in
this Lease, Lessee shall pay to Lessor as rent ("Rent") for each Lease
Year during the term of this Lease, commencing on the first day of the
first month following the expiration of 60 days after the expiration
of the Due Diligence Period (defined below) ("Refurbishment Period"),
unless the Lease is terminated during the Due Diligence Period (the
"Rent Commencement Date"), $300,000.00 per Lease Year, as defined
below, in advance and in equal monthly payments of $25,000.00 on or
before the first day of each month during the Term.
A "Lease Year" shall consist of a 12-month period beginning on the Rent
Commencement Date or any anniversary of the Rent Commencement Date.
(c) Consideration to Lessee. Lessor and Lessee acknowledge and
agree that a material consideration for Lessee's agreement to Lease
the Premises from Lessor is Lessor's compliance with the Management
Agreement pertaining to the License (the "Management Agreement")
between Lessor and Lessee dated the same date as this Lease. A
default by Lessor under the Management Agreement shall be deemed to be
a default by Lessor under this Lease. A default by Lessee under the
Management Agreement shall be deemed to be a default by Lessee under
this Lease.
(d) Payment. All payments of Rent, Initial Rent and other
amounts payable to Lessor under this Lease shall be paid to Lessor at
the office of Lessor at 3260 Blume Drive, Suite 500, Richmond,
California 94806, or at such other place as Lessor may designate.
(e) Late Charge. If any payment of rent is not paid by Lessee
when due and such failure to pay is not cured by Lessee within three
business days after Lessee receiving written notice from Lessor that
it has not received the payment, that payment shall be considered late
and an administrative charge of $250.00 shall be due and payable by
Lessee to Lessor on demand from Lessor. Lessor and Lessee agree that
this administrative charge represents a reasonable estimate of costs
and expenses incurred by Lessor and is fair compensation to Lessor for its
loss suffered by the late payment by Lessee. The date the payment
is received by Lessor shall be considered the effective date for
purposes of determining the late charge. Any payments made by check
shall not be deemed received if such check is not paid upon
presentation to Lessee's indicated bank. Lessor shall immediately
notify Lessee if a check is not honored. Acceptance by Lessor of a
late rent payment and late charge shall not constitute a waiver of any
Lessor's rights and remedies available in connection with any
subsequent failure of Lessee to pay rent or to make any other payment
due Lessor under this Lease in the manner or time provided for in this
Lease.
5. Due Diligence Period.
(a) Inspection by Lessee. Lessee and Lessee's representatives
and contractors shall have until the expiration of 90 days (the "Due
Diligence Period") after Lessee receives the Records (defined below)
to determine the feasibility of the Premises for Lessee's purposes and
to visit and inspect (including without limitation having engineering
and/or environmental tests, soil, and other tests and studies made)
the Premises. During the Due Diligence Period, Lessee shall be
allowed to inspect the following records (the "Records") pertaining to
the Premises, which shall be provided by the Lessor to the extent they
are available to Lessor: ad valorem tax and sales and use statements
and receipts for the last five years, real and personal property tax
renditions, filings and returns for the last five years, utility
statements for the last five years, any leases affecting the Premises
or the Personal Property, operating statements for the last three
years in which the Premises was an operating facility, all pleadings
and judgments in any law suit and a brief description of all
litigation to which Lessor or the Premises has been named a party and
all pending or threatened litigation or claims or administrative or
governmental proceedings during the five years immediately preceding
the date of this Lease, insurance policies, all contracts and
agreements, publications and advertisements, all available plans and
specifications for the Improvements, environmental, soil, structural
and engineering tests, reports and studies, repairs and capital
improvement records, all franchises, business licenses, permits,
certificates and evidence of any governmental approvals, and a
complete itemized schedule of all debts, obligations and liabilities
which affect or relate to the Premises and/or the Personal Property or
the operation of the Premises, certified as to its accuracy by Lessor
and any other documents relating to the Premises and/or the Personal
Property, or any part of the Premises and/or the Personal Property, or
to the operation of the Premises. If requested to do so by Lessee,
Lessor shall certify to the correctness of any other such document or
to the completeness of any such document or production of documents.
(b) Termination During Due Diligence. If Lessee, in its sole
discretion, is dissatisfied with the condition of the Premises and/or
the Personal Property, with the results of the tests and studies, or
with the information in any of the Records or other documents, or for
any other reason determines that the Premises are not suitable then
Lessee shall have the absolute right and option to terminate this
Lease, which must be exercised by giving written notice to Lessor
prior to the expiration of the Due Diligence Period. In the event of
such a termination, the parties shall have no other or further
obligation or liability to each other. In the event that no notice of
termination is given within the Due Diligence Period, then this Lease
shall continue to be binding and in full force and effect against Lessee
and Lessor. Lessor hereby acknowledges the receipt from Lessee
of $50.00 as consideration for this option.
(c) Approvals During Due Diligence. During the Due Diligence
Period, Lessor and Lessee shall use their best efforts to obtain the
approval from the Commission to issue a resolution approving this
Lease, and the Management Agreement, including, without limitation
specific approval of Lessee's rights to continue racing operations
under the License if it purchases Lessor in accordance with the terms
of the Management Agreement and authorizing Lessor to reorganize its
business entity status from a joint venture to a corporation (and
Lessor shall reorganize) as more specifically described in the
Management Agreement.
6. Survey. Within 30 days after the date of this Lease, Lessor
shall furnish to Lessee an on-the-ground survey(the "Survey"), including
six copies of the survey plat and field notes, of the Land and
Improvements, which survey shall be prepared, dated after the date of this
Lease, Date, bear the official seal of and be signed and certified (as to
all matters in this Section 6(a) through (e) in form reasonably acceptable
to Lessee) by a licensed Texas land surveyor who is acceptable to the Title
Company (defined below) and to Lessee, in form and substance acceptable to
the Title Company for deleting from the Leasehold policy of title insurance
at Lessor's expense the printed exceptions pertaining to boundaries and
encroachments (other than "shortage in area"). The cost of the Survey
shall be split equally between Lessor and Lessee. The Survey shall show
(a) the exact location of the Improvements including all parking areas
(including the number of parking spaces), fences, walls, and other
improvements along the property lines and that they are all located within
the boundaries of the Land, and of any setback lines, easements,
rights-of-way, roadways, traversing, adjoining or bounding the Land; (b)
the number of square feet within the boundaries of the Land and within any
easements, rights-of-way and encroachments; (c) that all of the parcels
comprise a single contiguous parcel of land with no intervening strips,
parcels or easements (except the permitted exceptions) between the Land and
the public roads adjacent to the Land and that there is full and complete
access to and from the Premises from and to those roads; (d) that none of
the Premises lies within the 100 year flood plain (or identify by metes and
bounds any portion of the Premises, if any, that may lie within the 100
year flood plain); and (e) that there are no encroachments on the Premises.
The surveyor's certificate shall read as follows:
"TO LESSEE, LESSOR, TITLE COMPANY AND OTHER PARTIES INTERESTED IN THE
TITLE TO THE PROPERTY SURVEYED: The undersigned hereby certifies that
this survey was this day made on the ground of the property described
hereon and is correct; that there are no discrepancies, conflicts or
shortages in area or boundary lines, or any encroachments, or any
overlapping of improvements, or any easements or rights of way except
as shown hereon; that such property has access to and from Ed Carey
Drive and ___ Road, dedicated roadways, as shown hereon; that such
property is entirely outside the 100 year flood plain; that, except as
shown hereon, there are no visible easements, rights-of-way, drainage
ditches, power lines, set back and/or building lines and that this
survey conforms to the current Texas Surveyors Association Standards
and Specifications for a Category 1A, Condition II Survey."
7. Title Matters.
(a) Leasehold Policy of Title Insurance. Lessor shall deliver on
or before 10 days after the expiration of the Due Diligence Period ("Policy
Issuance Date") a Leasehold Policy of Title Insurance (on a form prescribed
by the State Board of Insurance of the State of Texas) (the "Title Policy")
issued through Title Agency of Houston, Inc., 5251 Westheimer, Suite 150,
Houston, Texas, (the "Title Company"), insuring Lessee's leasehold interest
in title to the Land and Improvements in Lessee in the amount of
$2,800,000.00 and containing the following exceptions, and none other: (1)
standby fees and taxes for the year of the Closing and subsequent years;
(2) the standard printed exception pertaining to boundaries and
encroachments shall be deleted except for "shortage in area," and (3) other
matters which become permitted exceptions under the terms of this Lease
(collectively the "Permitted Exceptions"). The cost of the Title Policy
shall be split equally between Lessor and Lessee.
(b) Title Commitment; Review of Instruments and Survey. Within
15 days after the date of this Lease, Lessor shall obtain and deliver to
Lessee (i) a written commitment (the "Commitment") from the Title Company
to issue the Leasehold Policy of Title Insurance, which commitment shall be
dated after the date of this Lease, and (ii) legible copies of all
instruments (the "Instruments") that are referred to in that Commitment.
(1) Review of Title. Lessee shall have 30 days after Lessor's
receipt of the Commitment, the Instruments and the Survey, in which to
review those items. If Lessee fails to give notice to Lessor of an
objection to any of the Instruments, the Commitment or the Survey
within this 30 day period after all of these items have been received
by Lessee, Lessee shall be deemed to have no objection to the
Instruments or the Survey and the matters not objected to shall become
"Permitted Exceptions."
(2) Title Exceptions. If the Commitment, the Instruments or the
Survey, or any revisions to the Commitment or Survey disclose any
leases, liens, easements, reservations, restrictions, or other
exceptions or encumbrances to Lessor's title other than the Permitted
Exceptions, those additional exceptions or encumbrances shall be
deemed to be defects in or objections to Lessor's title. Subject to
the limitations in subsection (4) below, if Lessee gives notice of
objection to Lessor, Lessor shall cure or remove the objections prior
to the end of the Due Diligence Period.
(3) Additional Exceptions. In addition, Lessor shall promptly
notify Lessee at or prior to the Closing of any claims or other
additional exceptions or encumbrances upon the Premises, or of any
threats or notices of intention to condemn all or any part of the
Premises, made known to Lessee prior to the Closing and which are not
specifically listed in the Commitment (all of which shall also be
deemed to be additional exceptions or encumbrances for purposes of
this subparagraph). Lessor shall have until the Policy Issuance Date
to cure or remove any additional exceptions or encumbrances, in order
that the Leasehold Policy of Title Insurance will be issued to Lessee
without the additional exceptions or encumbrances, and at or prior to
the Policy Issuance Date shall deliver to Lessor a revised Commitment
and Survey showing that the additional exceptions or encumbrances have
been removed.
(4) Cure Obligations. Lessor shall use due diligence in curing
or removing any and all objections to the Instruments and any additional
exceptions or encumbrances, provided, however, Lessor shall not be required
to institute any suit or to spend more than $25,000.00 to remove any
exceptions or encumbrances other than additional exceptions or encumbrances
caused or created by Lessor after the date of this Lease which Lessee shall
cure. If Lessee fails to cure or remove all of those additional exceptions
or encumbrances and any objections to the instruments, then Lessee may
waive any such exceptions, encumbrances or objections or shall have in
addition to all rights and remedies permitted by law, the right to
terminate this Lease.
8. Representations of Lessor. Lessor represents and warrants to
Lessee that:
(a) Title. Lessor is the owner of fee simple title to the
Premises and the Personal Property, subject only to the matters that
are listed in Exhibit "B" to this Lease, and has the right to lease
the Premises and the Personal Property. Lessor hereby warrants and
defends the title to the Premises and the Personal Property.
(b) Claims. The Premises and the Personal Property are not
subject to any prior lease or claims of parties in possession or
claims for unpaid labor or materials.
(c) Condemnation. There is no pending or threatened
condemnation action or agreement in lieu thereof which affects the
Premises. Additionally, except as otherwise shown on Exhibit "B,"
there are no monetary liens or encumbrances upon the Premises and/or
the Personal Property that are or may be prior to this Lease.
(d) Legal Proceedings. There is no action, suit or proceeding,
pending or threatened against or affecting Lessor's title to the
Premises.
(e) Authorization. The execution, delivery and performance of
this Lease by Lessor has been duly authorized and this Lease is valid
and enforceable in accordance with its terms and will not be in
conflict with any mortgage, indenture or other agreement binding upon
Lessor.
(f) Zoning. Lessor has no knowledge of any fact, action or
proceeding, whether actual, pending or threatened, which could result
in the modification or termination of the present zoning
classification of the Premises, or the termination of full, free and
adequate access to and from the Premises from all adjoining public
highways and roads.
(g) Improvements. The existing improvements and utilities on
the Premises are in full compliance with all applicable building,
health and zoning laws and ordinances, including, without limitation,
the Americans with Disabilities Act and the Texas Architectural
Barriers Act. Lessor knows of no latent or material structural
defects in the Premises.
(h) Notices. Lessor has not received any notice from any
governmental authority having jurisdiction over the Premises requiring
or specifying any work to be done on or to the Premises
(i) Interference With Use. Lessor has no knowledge of any
existing, threatened or contemplated action, circumstances or
conditions (including, but not limited to subsurface conditions) which
would materially interfere with the use of the Premises for the
purposes for which it is intended to be used.
(j) Access. The Premises have public access by roadways
dedicated to and accepted by the State, City or County where the
Premises are located.
(k) Environmental. No hazardous waste or substances have been
dumped, deposited, buried or otherwise exist on the Premises, and
Lessor has no knowledge of any leaks of petroleum or hazardous
materials.
(l) Flood Plain. The Land is not located in a flood plain or a
flood hazard area.
(m) Taxes. All ad valorem real and personal property taxes,
excise taxes, income taxes and sales and use taxes applicable to the
Premises have been paid in full.
(n) Books and Records. All books, records, financial statements
and other such information provided by Lessor to Lessee are true and
correct.
9. Quiet Enjoyment. Lessor hereby agrees that Lessee, upon paying
the Rent and upon keeping and performing the covenants and agreements to be
kept and performed by Lessee under this Lease, shall and may peaceably and
quietly have, hold and enjoy the Premises during the Term.
10. Improvements to the Premises. Lessee may construct upon the
Premises, improvements necessary to Lessee's use of the Premises in
accordance with this Lease (collectively, "Lessee's Improvements"). All
Lessee's Improvements that are from time to time constructed upon the
Premises by Lessee or any sublessees shall be and remain the property of
Lessee and the sublessees until the expiration of the term of this Lease,
upon which the Lessee's Improvements (except for removables as provided in
this Lease) that are then located upon the Premises shall become the
property of Lessor. All construction by Lessee shall be subject to the
following conditions:
(a) Approvals. Lessee shall not make or cause to be made, any
alterations of or improvements to the Premises which could compromise
the structural integrity of the Premises or which will cost in excess
of $150,000.00 (as to the improvements then made, not in the
aggregate) to complete, without the prior written consent of the
Lessor which consent shall not be unreasonably withheld or delayed.
If Lessor fails to respond to a request for approval within 10 days of
such request, that request shall be deemed approved. All other
alterations and improvements shall be permitted without the necessity
of Lessee obtaining the consent of Lessor.
(b) Expenses. All costs, expenses and charges incurred in
connection with any construction shall be Lessee's sole and exclusive
obligation and Lessee hereby holds Lessor harmless and indemnifies
Lessor from any of such costs, expenses and charges. With respect to
any contract for any labor performed or materials delivered to the
Premises in accordance with those construction contracts, Lessee may
not act as the agent of Lessor. Lessee agrees to indemnify and hold
Lessor harmless from all claims arising or alleged to arise from any
act or omission of Lessee or Lessee's agents, employees, contractors,
subcontractors, laborers, materialmen or invitees or arising from any
bodily injury or property damage occurring or alleged to have occurred
incident to Lessee's work at the Premises.
(c) Liens. At all times prior to, during and subsequent to
construction of Lessee's Improvements, Lessee shall keep Lessor's
title to the Premises free and clear of all liens and encumbrances
including but not limited to those filed by mechanics, laborers, and
materialmen and all other security interests; provided, however, that
Lessee shall have the right to mortgage and encumber its leasehold
interest, but not Lessor's fee title to the Premises.
(d) Compliance. All of Lessee's construction at the Premises
shall be performed in a good and workmanlike manner in accordance with
applicable building codes, regulations and all other legal
requirements.
(e) Permits. No alterations or construction shall commence
until the Lessee has obtained all required permits and authorizations
of all municipal departments and governmental subdivisions having
jurisdiction. The Lessor shall join, but without expense to the
Lessor, in the application for those permits or authorizations
whenever such action is necessary and is required by Lessee.
(f) Insurance. Workmen's compensation insurance covering all
persons employed in connection with the work and with respect to whom
death or bodily injury claims could be asserted against the Lessor,
the Lessee or the Premises and, to the extent that the insurance
required under this Lease does not adequately protect the Lessor with
respect to those alterations, general liability insurance for the
mutual benefit of the Lessor and the Lessee, with reasonable limits
and deductible, shall be maintained by or on behalf of the Lessee at
the Lessee's sole cost and expense at all times when any substantial
work is in progress in connection with any alterations. Lessee shall
also obtain and maintain, or cause the contractor(s) under its
construction contract(s) to obtain and maintain, all risk builder's
risk insurance to the full insurable value of the improvements to be
constructed and materials stored at the Premises in connection with
that construction. The builder's risk insurance shall name Lessor as
an additional insured and shall be non-cancelable with respect to
Lessor without at least 15 days notice from the insurer. All such
insurance policies shall be in standard form and shall be in such
responsible companies selected in good faith by Lessee. Certificates
evidencing liability and workmen's compensation insurance issued by
the respective insurers, bearing notations evidencing the payment of
premiums or accompanied by other evidence reasonably satisfactory to
the Lessor of payment, shall be delivered to the Lessor prior to the
commencement of any alterations. Any loss or damage not covered by
insurance provided by the Lessee will be borne and paid by the Lessee.
11. Taxes. During the Term, Lessee will pay or caused to be paid to
Lessor (or as otherwise provided below), as and when the same shall become
due, the following amounts:
(a) Real Estate Taxes. Lessee agrees to pay directly to the
taxing authorities all current taxes and assessments against the
Premises during the term of this Lease after receipt by Lessee
directly from the taxing authorities or presentation to Lessee by
Lessor, of current tax statements from the applicable taxing
authorities. Lessee, however, will pay only the lowest discounted
amount and will not be required to pay any penalty, interest or cost
accruing by reason of Lessor's failure to secure tax statements from
the taxing authorities. Lessor shall upon the Rent Commencement Date
direct the taxing authorities to send all tax statements directly to
Lessee. Any tax or assessment payable in installments shall be paid in
installments and Lessee shall only be responsible for the part that is
payable during the term of this Lease. Lessee shall be responsible for
the preparation and filing of all real and personal property
renditions and/or tax returns relating to the Premises and Personal
Property. Lessee, in the name of Lessor but at Lessee's sole expense,
may protest any tax levied before any taxing authority or maintain any
necessary legal action in reference to tax levied or for the recovery
of any taxes paid by Lessee. Taxes for any period less than a calendar
year shall be prorated on a daily basis.
(b) Personal Property Taxes. Lessee shall pay prior to
delinquency all taxes against and levied upon fixtures, furnishings,
equipment, inventory and all other personal property of Lessee
contained in or upon the Premises. Taxes for any period less than a
calendar year shall be prorated on a daily basis.
12. Insurance.
(a) Liability Insurance. Lessee shall, at its sole cost and
expense, obtain and maintain in full force and effect, for the mutual
benefit of Lessor and Lessee, comprehensive public liability insurance
in the amount of $25,000,000.00 combined single limit coverage (with a
deductible not in excess of $100,000.00), against claims for bodily
injury, death or property damage arising out of the use and occupancy
of the Premises. A certificate of that insurance shall be furnished
to Lessor at the Rent Commencement Date and each renewal certificate
of this policy shall be furnished to Lessor within five days after the
expiration of the policy it renews. Each policy of insurance shall
contain an agreement by the insurer, if obtainable, that the policy
shall not be canceled without at least 10 days prior written notice to
Lessor. This insurance may be in the form of a general coverage,
floater policy or blanket policy issued by insurers of recognized
responsibility. This policy shall include the Lessor as additional
insured, shall contain cross-liability, severability of interest, and
products liability endorsements, shall state that this insurance is
primary insurance with respect to other insurance carried by Lessor,
and shall include the following coverages:
(1) Premises/Operations;
(2) Contractual Liability;
(3) Property Damage; and
(4) Personal Injury Liability.
(b) Property Insurance. Lessee shall, at its option, either (A)
insure the Improvements covered by this Lease in an amount equal to
their full replacement value (exclusive of the cost of excavations,
foundations and footings) against loss or damage by fire and such
other hazards as are currently found in the standard extended coverage
endorsement, in the jurisdiction where the Premises are located, which
policy shall include Lessor as an additional insured, and/or (B) elect
to be a self-insurer for some or all of such property insurance with
extended coverage.
(c) General Insurance Requirements. All insurance policies
carried by Lessee shall be issued in the name of Lessee and Lessor, as
their respective interests may appear. Lessee shall have the right to
adjust all losses and execute all proofs of loss in its name and/or in
Lessor's name. The proceeds of that insurance shall be payable to and
used by Lessee as provided in subsection (d) below. Lessee, in its
discretion, may carry any insurance under a blanket fire and other hazards
insurance policy or policies. However, a certificate or copy
of the certificate evidencing the insurance shall be delivered to
Lessor upon written request, unless Lessee has given Lessor notice of
self-insurance as permitted under this Lease. At Lessee's option, any
of the insurance which Lessee is required to procure under the
provisions of this Section 12, may include a deductible for any loss
as Lessee deems reasonable.
(d) Proceeds of Property Insurance. Upon any property loss
involving any of the Improvements, Lessee shall use the proceeds of
its property insurance to reconstruct the Improvements in
substantially the same design and configuration or, at Lessee's
option, in such other design and configuration that is not materially
less than the estimated replacement cost of the Improvements
immediately prior to the date of the property loss; provided, however,
that Lessee may, at its option, terminate this Lease upon any property
loss to the Improvements exceeding 50% of the replacement cost in
which event all insurance proceeds shall become payable solely to
Lessor. During any period of reconstruction or repair of the
Premises, this Lease shall continue in full force and effect except
that Rent shall be abated for the length of time necessary for the
reconstruction or repairs to be completed in proportion to the amount
of floor area of the Premises rendered unusable.
(e) Subrogation Waiver. Lessor and Lessee do hereby mutually
waive as against one another all rights of recovery for damage
sustained by either caused by the other, to the extent that the damage
is compensated for by insurance maintained by the damaged party, and
Lessor and Lessee agree that no party shall have any claim against the
other by way of subrogation or assignment.
13. Indemnification.
(a) Lessee. Lessee agrees that Lessor shall not be liable or
accountable for any loss, theft, injury, death or damage to persons or
property, from any cause or causes whatsoever and relating to events
occurring during the Term, which at any time may be suffered or
sustained by Lessee, or by any person using, occupying, or visiting
the Premises and Lessee agrees to indemnify and save Lessor harmless
from any and all claims, liabilities, losses, damages, costs and
expenses whatsoever arising therefrom. Lessee agrees to pay for all
damages done to the Premises by Lessee or any person permitted on the
Premises by Lessee.
(b) Lessor. Lessor hereby agrees to indemnify Lessee against
any damage and expense Lessee may suffer as a result of any defect in
title to the Premises which materially impairs Lessee's rights as a
Lessee under this Lease, any liability relating to environmental
contamination of the Premises or other events that occurred prior to
the date of this Lease, and any liability relating to its default
under or misrepresentations of Lessor contained in this Agreement.
14. Surrender on Termination. Lessee shall, upon expiration of the
Term or upon earlier termination of this Lease for any reason, quit and
surrender the Premises and the Improvements in good order, condition and
repair, reasonable wear and tear and damage by fire, casualty or other
causes not required under this Lease to be repaired by Lessee excepted.
15. Maintenance and Repairs. By acceptance of the Premises during
the Due Diligence Period Lessee shall be deemed to have accepted the
Premises in its "AS IS" condition. Lessee agrees to maintain the Premises
and to keep both the interior and the exterior of the Improvements in good
repair consistent with the condition in which the Premises are delivered to
Lessee under this Lease, to maintain the surface of any parking area, if
any, on the Premises to at least the condition as it exists on the
Commencement Date, and be responsible for all glass and casualty damage,
reasonable wear and tear excepted. Lessee will make all repairs and
replacements at the Premises as it reasonably deems necessary for the
operation of the Premises. All damage to the Premises, not caused by
Lessor will be the responsibility of Lessee to repair and all maintenance
will be performed and replacements and renewals will be made by Lessee at
Lessee's cost and expense. In addition, Lessee will have professional
preventive maintenance performed on all heating, ventilation and air
conditioning equipment in the Premises at least once every 12 months during
the term of this Lease and provide Lessor documentation satisfactory to
Lessor that such maintenance has been performed upon written request by the
Lessor. Lessor, and its agents (and any mortgagee or Deed of Trust
beneficiary as to the Premises) will have a right to enter the Premises, at
reasonable times which do not disturb or interfere with Lessee's business
on the Premises, to inspect the condition of the Premises.
16. Use and Occupancy. Lessee may use and occupy the Premises for
any and all lawful purposes. Lessee may, from time to time, grant easements
over the Premises and obtain zoning changes and conditional use permits
with respect to the Premises, provided they are limited to the term of this
Lease.
17. Compliance with Laws.
(a) Compliance. Lessee shall comply with all Applicable Laws
(defined below) relating to the Premises with respect to Lessee's use
of the Premises after the Commencement Date; provided, however, Lessee
shall not be obligated to make any structural changes to existing
improvements, incur expenses of a capital nature or remediate any
environmental contamination of the Premises existing prior to the
Commencement Date in order to comply with Applicable Laws.
(b) Environmental Compliance. Lessee shall not cause the
Premises, or permit the operation of any business or other activity on
the Premises, or any occupancy or use of the Premises, to violate any
applicable law, statute, ordinance, rule, regulation, order or
determination of any federal, state or local governmental authority or
any board of fire underwriters (or other body exercising similar
function), or any restrictive covenant or deed restriction (recorded
or otherwise affecting the Premises, including without limitation, all
applicable zoning ordinances and buildings codes, flood disaster laws
and health, industrial hygiene, and environmental laws, statutes,
ordinances, rules and regulation, the Comprehensive Environmental
Response Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et. seq., as amended from time to time, and regulations
promulgated thereunder ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., as amended from
time to time ("RCRA"), and regulations promulgated thereunder
("Applicable Laws"). Lessee shall obtain or cause to be obtained any
permits, licenses or similar authorizations required by Applicable
Laws to occupy, operate or use any buildings, improvements, fixtures
and equipment now or hereafter located on the Premises and Lessor
shall cooperate with Lessee in order to obtain them. Lessee shall not
cause or allow any of its employees, licensees or invitees to cause
the Release (defined below) of any Hazardous Substance (defined below) at,
on or under any of the Premises. Notwithstanding the foregoing,
Lessee may keep or permit to be stored, kept and/or used on the
Premises Hazardous Substances relating to the operations conducted on
the Premises provided they are stored, kept and/or used in compliance
with all Applicable Laws. Lessee shall inform Lessor of any pending
or threatened investigation, administrative order, or litigation with
respect to the Release of a Hazardous Substance on the Premises of
which it has actual knowledge, and promptly notify Lessor if Lessee
shall receive any written communication from or on behalf of any
governmental authority regarding an environmental condition on the
Premises which violates any Applicable Laws. Lessee agrees (i) not to
release, discharge or dispose of, on or under the Premises, any
Hazardous Substance or authorize any other person or entity to do so,
(ii) not to cause the Premises to be in violation of, any Applicable
Laws, (iii) to give prompt written notice to Lessor upon Lessee's
acquiring actual knowledge of (A) the presence of any Hazardous
Substance at, on or under the Premises, or any Release occurring at
the Premises, with a full description thereof, (B) any proceeding or
inquiry by a governmental authority with respect to the presence of
any Hazardous Substance on or under the Premises or the migration
thereof from the Premises to other property or from other property to
the Premises, (C) all claims made or threatened by any third party in
writing against Lessor, Lessee or the Premises relating to any loss or
injury resulting from any Hazardous Substance or Release, and (iv) to
promptly comply with any governmental requirements or Applicable Laws
requiring the removal, treatment or disposal of a Hazardous Substance
from the Premises or responding to a Release if caused by or
attributable to Lessee or any of Lessee's employees, servants, agents,
partners, directors, officers, shareholders, licensees,
concessionaires, sublessees, contractors, subcontractors,
(collectively a "Lessee Responsible Party"). In the event that the
Premises is affected by any Release caused by or attributable to
Lessee's use, release, deposit, discharge, collection, storage,
handling, management of, on, or under, or any Release by Lessee or a
Lessee Responsible Party, then Lessee shall perform or cause to be
performed at Lessee's cost all necessary Remedial Work (defined below)
related thereto, by contractors approved in advance by Lessor, and
under the supervision of a consulting engineer approved by Lessor. In
the event Lessee fails to timely commence, or cause to be commenced,
or fails to diligently prosecute the Remedial Work to be performed,
and such failure continues after the applicable cure period under this
Lease, Lessee shall be in default under this Lease, Lessor may perform
such Remedial Work and all reasonable costs and expenses to perform
that work which are incurred by Lessor shall be payable on demand by
Lessee to Lessor. Lessor shall have the right to join and participate
in, as a party if it so elects, in any legal proceedings or action
initiated with respect to the Premises in connection with any
Applicable Laws, provided it shall bear the cost of its own attorneys'
fees in connection therewith. The terms "Hazardous Substance" and
"Release" shall be defined in this Lease to have the same meaning as
ascribed to them under CERCLA and RCRA. The term "Remedial Work"
shall mean any investigation, site monitoring, containment, cleanup,
removal, restoration, or other work of any kind or nature required
under any Applicable Law in connection with the then current presence
or release of a Hazardous Substance in or into the air, soil, ground
water, surface water, or soil vapor at, on, under, or within the
Premises, or any part thereof.
(c) Right to Contest. Lessee shall have the right to contest by
appropriate legal proceedings which shall be conducted diligently and in
good faith in the name of Lessor or Lessee or both, and without
cost or expense to Lessor, the validity or applicability of any law,
ordinance, order, rule or regulation relating to Lessee's use or
operation of the Premises and Lessee shall have the right to delay
observance thereof and compliance therewith until the contest is
finally determined and is no longer subject to appeal, provided that
observance and compliance pending the prosecution of that proceeding
may be legally delayed without subjecting Lessor to any liability or
fine.
18. Eminent Domain.
(a) Taking of Premises. If the whole of the Premises shall be
taken under the power of eminent domain, the Term shall cease as of
the day possession shall be so taken. If any part of the Premises
shall be taken under the power of eminent domain, and the portion
remaining after the taking will not be adequate, in Lessee's
reasonable judgment, for the operation of Lessee's business, Lessee
shall have the right to elect either to terminate this Lease or to
remain in possession of the remainder of the Premises not so taken.
(b) Notice of Election. Lessee shall notify Lessor within 60
days after a taking, of Lessee's election under Section 18(a). If
Lessee elects to remain in possession, all of the terms of this Lease
shall continue in effect, except that the Rent shall be equitably
reduced.
(c) Condemnation Award. All damages awarded for taking under
the power of eminent domain, whether for the whole or part of the
Premises, shall be apportioned between Lessor and Lessee in order to
compensate them for the fair value of the Land and Lessee's
Improvements, respectively, that are so taken, and the fair value of
Lessee's leasehold interest in and to the Premises. On any taking,
Lessor and Lessee shall pursue, in their respective individual and
separate names and rights, unless otherwise required by law, those
remedies and those claims as they may have against the authority
exercising the right of eminent domain or other lawful taking as if
this Lease and the Term had not expired (whether or not the expiration
occurred because of the taking). The award of damages for the taking,
if made payable to Lessor and Lessee jointly, shall be apportioned
between the parties on equitable and just principles in accordance
with their respective fee and leasehold interests, it being understood
that Lessee shall be entitled to that award or portion of award for
damages to its leasehold, non-removable fixtures, improvements made to
the Premises by Lessee and for the loss of value of its leasehold
estate for the unexpired Lease term, including renewals. Rent shall be
apportioned to the date this Lease terminates.
(d) Adjustment to Rent. If Lessee shall not cancel the Lease as
provided in Section 18(a) above, this Lease shall not terminate, but
the Rent for the Premises shall be reduced, in proportion to the value
of the Premises before the taking bears to the value of the Premises
after the taking, as of the date when title shall vest in the
appropriate authority.
19. Assignment and Subletting.
(a) Assignment. Lessee shall not assign this Lease, or any
interest therein, and shall not (except as expressly provided in this
Agreement) sublet the Premises or any part thereof, or any right or
privilege appurtenant thereto, or permit any other person (the agents
and servants of Lessee excepted) to occupy or use the Premises, or any
portion thereof, without first obtaining the written consent of
Lessor, which shall not be unreasonably withheld or delayed. Consent
by Lessor to any assignment, subletting, occupation, or use by another
person shall not be a consent to any subsequent assignment,
subletting, occupation, or use by another person. Consent to an
assignment, subletting or other use or occupancy of the Premises by
another person shall not release the original named Lessee from
liability for the continued performance of the terms and provisions on
the part of Lessee to be kept and performed, unless Lessor
specifically and in writing releases the original named Lessee from
liability or Lessee assigns this Lease to a creditworthy tenant of
sufficient financial ability to perform the obligations under the
Lease which has the same or better financial ability as Lessee. Any
assignment and subletting or consent by Lessee to some other person's
use or lease occupancy of the Premises without the prior written
consent of Lessor shall be void. This Lease shall not, nor shall any
interest therein, be assignable, as to the interest of Lessee, by
operation of law without the prior written consent of Lessor.
Notwithstanding the foregoing, Lessee shall be permitted without
Lessor's consent to sublet or grant concessions as to minor portions
of the Premises where consistent with the development and operation of
Lessee's continuing business on the Premises.
(b) Consent. In the event Lessor consents to an assignment or
subletting of the Premises, such assignment or subletting shall not
become effective until execution of a formal agreement executed by
Lessor, Lessee and the proposed assignee/sublessee. Lessee shall
reimburse Lessor's fees and expenses in reviewing and approving the
assignment or sublet, such sum not to exceed $1,000.00 upon execution
of the required documents.
(c) Additional Consideration. If substantially all of Lessee's
rights under this Lease are subleased by Lessee to a third party not
affiliated with Lessee and the Base Rent payable by the Sublessee
exceeds the Base Rent provided for in this Lease, that portion of the
rent received by Lessee from the Sublessee in excess of the Base Rent
shall be shared equally between Lessor and Lessee.
20. Non-Disturbance; Subordination; Leasehold Mortgages.
(a) Non-Disturbance. With respect to any mortgages currently
affecting title to the Premises, Lessor shall obtain from the
applicable mortgagee, a non-disturbance agreement in form and content
reasonably acceptable to Lessee that provides that for as long as
Lessee is not in default (beyond any time period given Lessee in the
Lease to cure the default) in the payment of any Rent or in the
performance of any of the other terms, covenants or conditions of the
Lease to be performed by Lessee, Lessee's possession of the Premises
and rights and privileges under the Lease shall not be diminished or
interfered with by the mortgagee and Lessee's occupancy of the
Premises shall not be disturbed during the term of the Lease. If the
interests of the Lessor are acquired by the mortgagee or another third
party, by reason of the foreclosure of the liens evidenced by the
mortgage or other proceedings brought to enforce the rights of the
holder of the liens evidenced by deed in lieu of foreclosure or other
method and mortgagee or other third party succeeds to the interest of
the Lessor under the Lease, the Lease and the rights of Lessee under
the Lease shall continue in full force and effect and shall not be
terminated or disturbed except in accordance with the terms of the
Lease. Additionally, if the mortgagee or any third party succeeds to
the interest of Lessor under the Lease, the mortgagee or such third
party shall be bound to Lessee under all the terms, covenants and
conditions of the Lease, as if that party were named as the Lessor
under the Lease, and Lessee shall have the same remedies against that
party for the breach of any term, covenant, condition or agreement
contained in the Lease that Lessee might have had under the Lease
against the Lessor.
(b) Fee Mortgage. Any mortgage hereafter placed upon the
Premises by Lessor may only encumber Lessor's interest in the Land and
this Lease, and it shall be subject and subordinate to this Lease. If
Lessor defaults, at any time, in the performance of the obligations of
any mortgage or other lien affecting the Premises, Lessee may remedy
such default in whole, or in part, charge to Lessor all costs incurred
thereby, and be subrogated to the rights of the holder of such
mortgage or other lien.
(c) Leasehold Mortgage. Lessee may, at its option, from time
to time subject its leasehold interest in and to the Premises to the
lien of leasehold mortgages not encumbering Lessor's fee title. The
holder of that leasehold mortgage is referred to in this Lease as the
"Mortgagee."
(d) Notice to Mortgagee. When giving notice to the Lessee with
respect to any default, the Lessor will also serve a copy of each
notice upon the Mortgagee, and no notice to the Lessee shall be
effective unless a copy of that notice is served upon the Mortgagee;
(e) Mortgagee's Right to Cure. If the Lessee defaults under any
of the provisions of this Lease, the Mortgagee shall have the right to
cure that default whether the default consists of the failure to pay
Rent or the failure to perform any other obligation the Lessee is
required to perform, and the Lessor shall accept such payment or
performance on the part of a Mortgagee as though the payment or
performance had been by the Lessee.
(f) Cure Period. The Mortgagee will have the same period after
receiving the notice of default to cure the default or causing the
default to be cured for the account of Lessee or of the Mortgagee (as
the Mortgagee may elect) as is given the Lessee after notice to it,
plus an additional period of 10 days for defaults involving payments
of money. In the case of any default by the Lessee, other than in the
payment of money, the Lessor will take no action to effect a
termination by reason of that default without first giving to the
Mortgagee reasonable time within which either (i) to obtain possession
of the Premises (including possession by a receiver) and cure the
default in the case of a default which is susceptible of being cured
when the Mortgagee has obtained possession, or (ii) to institute
foreclosure proceedings and complete foreclosure, or otherwise acquire
the Lessee's interest under this Lease.
(g) Injunction, Stay, etc. In the event any Mortgagee is
prohibited by any injunction or any bankruptcy or insolvency
proceedings involving the Lessee from commencing or completing
foreclosure, the time period specified above during which a Mortgagee
may commence foreclosure shall be extended for the time period during
which such injunction or other prohibition is in force provided that
the Mortgagee shall diligently attempt to remove any such prohibition.
(h) Foreclosure by Mortgagee. Any Mortgagee may become the
legal owner and holder of this Lease by foreclosure of its Mortgage or
as a result of the assignment of this Lease in lieu of foreclosure,
whereupon the Mortgagee shall immediately become and remain liable
under this Lease but only with respect to the period of its ownership
of this Lease and only to the extent attributable to that period. Any
such Successor may, upon acquiring the leasehold, without further
consent of the Lessor, sell and assign this Lease on such terms and to
such persons as it deems acceptable and thereafter such purchaser at
foreclosure shall be relieved of all obligations under this Lease,
provided that the transferee has delivered to the Lessor its written
agreement to be bound by all of the provisions of this Lease from and
after its acquisition of the Leasehold. Nothing contained herein
shall require any Mortgagee or any other person as a condition to its
exercise of rights hereunder to cure any default under this Lease not
reasonably susceptible of being cured by such person.
(i) Further Assurances. The parties agree that the Lessee may
secure financing through one or more Mortgagees. The Lessor agrees to
cooperate on a reasonable basis with any requirements imposed by a
Mortgagee or any other prospective owner or holder of a leasehold
mortgage with respect to such certificates, agreements and other
matters as may be necessary or appropriate to facilitate the
financing.
21. Default; Termination.
(a) Defaults. If Lessee defaults in payment of any installment
of rent or any other sum to be paid by Lessee and the default
continues for 20 days after written notice from Lessor that the
payment has become past due; or if Lessees defaults in the performance
of a material covenant, agreement or other obligation on its part to
be performed under this Lease and the default continues for 30 days
after written notice from Lessor specifying the default (provided,
however if a default not susceptible of being cured by Lessee within
the 30 days, the time to cure shall be extended for such time as may
be necessary to cure the default with due diligence); or if Lessee
files a voluntary petition in bankruptcy or is adjudicated a bankrupt
or insolvent; of if a receiver is appointed for, or execution is
levied upon, all or substantially all of Lessee's business or assets
or Lessee's leasehold interest hereunder, of if a trustee is appointed
for Lessee after a petition has been filed for Lessee's reorganization
under the Bankruptcy Act of the United States; or if Lessee shall make
an assignment for the benefit of its creditors, Lessor may, by written
notice given to Lessee either terminate this Lease effective as of the
day of the event of default, or terminate Lessee's right to possession
of the Premises, without terminating this Lease, effective as of the
date of the event of default.
(b) Surrender of Premises. Upon any termination of this Lease
or Lessee's right of possession or occupancy of the Premises, Lessee
shall promptly surrender and deliver possession of the Premises to
Lessor and Lessee hereby grants the Lessor full and free license to
enter into and upon the Premises in that event, and, with process of
law, to repossess the Premises and to expel or remove Lessee and any
others who may be occupying the Premises, without relinquishing any
right given to Lessor under this Lease or by operation of law.
(c) Damages. If this Lease shall be terminated as provided
above, Lessor shall be entitled to recover from Lessee all sums due and
payable to Lessor up to the date of the termination, and damages
which accrue by reason of Lessee's default under this Lease but in no
event shall Lessor be entitled to recover damages for future rents or
other compensation due or that might become due under the Lease from
and after the date of termination, except for the Termination Fee
(defined below).
(d) Possession. If Lessee's right to possession only shall be
terminated, Lessor at its option, may enter upon, take and hold
possession of the Premises without releasing Lessee in whole or in
part from its obligation to pay all Rent payable for the Term, and in
that case Lessee shall continue to pay to or for the account of Lessor
the Rent and other sums payable by Lessee for the remainder of the
Term (subject to Lessee's termination rights in (f) below). Lessor,
after entry and possession, shall and in good faith take reasonable
steps to relet the Premises. If any rental collected by Lessor upon
such reletting is insufficient to pay monthly the full amount of the
Rent reserved in this Lease and the cost of any repairs necessary for
such reletting, Lessee shall pay to Lessor the amount of each monthly
deficiency upon demand.
(e) Leasehold Mortgagee. Anything contained in this Lease to
the contrary notwithstanding, if Lessor receives notice of a mortgage
encumbering Lessee's leasehold, the Mortgagee shall be given copies of
all notices required to be given to Lessee under this Lease and Lessor
shall not attempt to terminate this Lease for any default not
involving the payment of money without giving the mortgagee a
reasonable time to obtain possession of the Premises.
(f) Termination Rights. At any time during the first five years
of the Term, Lessee may terminate this Lease and the Management
Agreement for any or no reason by giving written notice of termination
to Lessor not less than 90 days prior to the termination date and
payment of the applicable Termination Fee (defined below), in which
event the Lease shall terminate and Lessee and Lessor shall have no
further liability under this Lease. In the event Lessee elects to
terminate this Lease during the first five years of the Term for
reasons other than a default by Lessor or other termination right of
Lessee under this Lease, Lessee shall pay to Lessor within 10 days
after the effective date of termination, an amount equal to
$225,000.00 less a credit against this amount equal to the actual cost
of any improvements made to the Premises and fixtures installed in the
Premises from and after the date of this Lease, including also costs
incurred for carpet, tile, window coverings, wall coverings,
electrical work, plumbing work, racetrack surface improvements,
furniture and equipment purchases that remain with the Premises,
parking lot repairs (crack filling, paving, sealing), rebuilding
and/or repairing the tote board, roof and other structural repairs,
permanent landscaping, construction of buildings, construction of
roads, wiring for telecommunications including for computer systems
and any other item that would qualify as a capital expenditure under
GAAP. The credit for these actual costs incurred shall be reduced by
10% per year from the date they are incurred. This credit shall in no
event exceed $75,000.00 ("Termination Fee").
(g) Remedies Non-Exclusive. In addition to the above-described
remedies, Lessor will also have all other remedies provided by law or
equity in the event of any default by Lessee.
22. Memorandum. Lessor and Lessee shall execute a Memorandum of
Lease in the form attached to this Lease as Exhibit "C" and Lessee may
cause that Memorandum to be recorded against the Land.
23. Lessor's Information and Assistance. Lessor shall reasonably
assist Lessee and execute any necessary applications or letters of
authorization for Lessee to obtain all necessary permits and zoning changes
from appropriate governmental authorities.
24. Fixtures. Lessee shall provide, and maintain at its own expense
all fixtures of a special nature that may be required by Lessee's business.
All trade and other fixtures, equipment and furniture placed on the
Premises by Lessee shall remain the property of Lessee, if removal can be
done so as not to materially damage the Premises. Lessee may not remove
those trade and other fixtures later than 30 days after the expiration of
the Term. Any such fixtures, equipment and furniture not so removed shall
become Lessor's property.
25. Holding Over. Any hold over after the expiration of the Term of
this Lease with the prior written consent of Lessor shall be construed to
be a tenancy from month-to-month, cancelable upon 30 days written notice,
and at a rental and upon terms and conditions as existed during the last
year of the Term. Any holding over after the expiration of the Term of
this Lease without the prior written consent of Lessor shall be construed
to be a tenancy from month-to-month cancelable upon 30 days written notice
(even though such 30 day period includes portions of more than one calendar
month), upon the same terms and conditions as existed during the last month
of the term of this Lease, except that the Base Rent shall be 150% of the
amount payable by Lessee.
26. Notices. Whenever under the terms of this Lease a written notice
is required, or whenever a written notice or communication is sent, the
same shall be accomplished by certified mail, return receipt requested,
postage prepaid, addressed as follows:
To Lessor: Ladbroke Racing Corporation
3260 Blume Drive, Suite 500
Richmond, California 94806
Attn: General Counsel
Facsimile: 510/243-9734
With copy to: Winstead Sechrest & Minick P.C.
100 Congress, Suite 800
Austin, Texas 78701
Attn: Timothy E. Young
Facsimile: 512/370-2850
To Lessee: c/o Sam Houston Race Park, Ltd.
7575 N. Sam Houston Parkway West
Houston, Texas 77064
Attn: President
With copy to: MAXXAM Inc.
Attn: General Counsel
5847 San Felipe, Suite 2600
Houston, Texas 77057
Notices served by mail shall be deemed complete when deposited with the
United States Postal Service. Any change of address shall not be effective
unless served upon the parties in the same manner as a notice.
27. Unenforceable Terms. If any term, covenant, condition or
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of that term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by
law.
28. Estoppel Certificates. Lessor and Lessee shall within 15 days
after the request of the other, execute and deliver to each other, at such
time or times as either Lessor or Lessee may request, a certificate
evidencing whether or not (a) the Lease is in full force and effect; (b)
the Lease has been modified or amended in any respect and describing those
modifications or amendments, if any; and (c) there are any existing
defaults under the Lessee to the knowledge of the party executing the
certificate, and specifying the nature of the defaults, if any. If either
party fails to deliver a certificate within 15 days from the date it is
requested, it shall be deemed that the Lease is in full force and effect,
unmodified and without default (provided such party shall not be excused
from its obligation to provide such certificate).
29. Lessor-Lessee Relations. The relation created by this Lease
Agreement is that of Lessor and Lessee. No provision contained in this
Lease shall be construed in such a way as to constitute Lessor and Lessee
joint venturers or co-partners or to make Lessee the agent of Lessor or to
make Lessor liable for this debts of Lessee.
30. Consents. Wherever in this Lease the consent or approval of
either party is required, the consent or approval shall not be unreasonably
withheld nor delayed, except where otherwise specifically provided.
31. Choice of Law. This Lease shall be governed by and construed in
accordance with the law of the state of Texas.
32. Entire Agreement. This Lease contains the entire agreement of
the parties hereto with respect to the Lease of the Premises and may not be
amended, modified, released, or discharged, in whole or in part except by
an instrument in writing signed by the parties to this Lease, their
respective successors or assigns.
33. Binding on Successors and Assigns. Except as otherwise provided
in this Lease, all covenants, agreements, provisions and conditions of this
Lease shall be binding on and inure to the benefit of the parties to this
Lease, their respective personal representatives, successors, and assigns.
In the event of any assignment of this Lease by Lessee, Lessee shall be and
hereby is, entirely freed and relieved of all obligations of Lessee under
this Lease which subsequently accrue, except as otherwise specifically
provided in this Lease.
34. Attorney's Fees. The prevailing party in any litigation under
this Lease, as determined by the Court, shall be entitled to the recovery
of its reasonable attorney's fees, as determined by the Court, and court
costs, from the other party.
35. Force Majeure. Whenever a period of time is provided in this
Lease for either party to do or perform any act or thing, that party shall
not be liable or responsible for any delay due to strikes, lockouts,
casualties, Acts of God, governmental regulation or control, or other
causes beyond the reasonable control of that party, and in any such event
the time for performance shall be extended for the amount of time that
party is delayed.
36. Brokers. Lessee represents that Lessee has dealt with no broker
in connection with this Lease. Lessor hereby agrees to hold Lessee
harmless from and against any claim made by any person or entity claiming a
commission or fee through or under Lessor or any person or entity
affiliated with Lessor in connection with or relating to this Lease,
including, without limitation, attorney's fees incurred in defense of such
a claim.
37. Landlord's Lien. To secure the payment of all Rent due and to
become due under this Lease and the faithful performance of this Lease by
Lessee, Lessee hereby gives to Lessor a lien and security interest on all
property (including fixtures, equipment, chattels and merchandise) which
may be placed in the Premises and also upon all proceeds of any insurance
which may accrue to Lessee by reason of destruction of or damage to that
property. This lien and security interest is given in addition to the
Lessor's statutory lien and may be foreclosed with or without court
proceedings by public or private sale, provided Lessor gives Lessee at
least 15 days notice of the time and place of the sale. Lessor shall have
the right to become the purchaser, upon being the highest bidder at that
sale. Contemporaneous with the execution of this Lease (and if requested
hereafter by Lessor), Lessee shall execute and deliver to Lessor a Texas
Uniform Commercial Code Financing Statement and/or instruments in
sufficient form to reflect the existence or extension of this lien and
security interest. Lessor shall, in addition to all of the rights
hereunder, also have all of the rights and remedies of a secured party
under the Texas Uniform Commercial Code (the Texas Business and Commerce
Code). Notwithstanding the foregoing, Lessor agrees upon request from time
to time by Lessee, to subordinate both its contractual and statutory
Landlord's liens to the liens of any third party lender of Lessee making a
loan to Lessee relating to the Premises or any seller of personal property
to be placed in the Premises, for which such Seller retains a purchase
money security interest.
Valley Racing Association By: Ladbroke Racing
Management Texas
By: Ladbroke Racing Texas Corporation, venturer
Corporation, venturer
By: /S/ GEORGE P. HARBISON
By:/S/GEORGE P. HARBISON Name: George P. Harbison
Name:George P. Harbison As Its:VP/CFO
As Its:VP/CFO
SHRP Valley LLC
By:/S/ JAMES D. NOTEWARE
Name:James D. Noteware
As Its:President