EXHIBIT 10.8
LEASE AGREEMENT
This Lease Agreement is made and entered into on this ____ day of
_________, 1995, by and between John A. Kramer, Sr., Trustee, Helen M. Kramer,
Elizabeth Thatcher Brooks and Betty Bennett, Executrix of the estate of John
David Kramer, the interest of each in and to the Leased Premises being
hereinafter more particularly set forth in the legal description attached hereto
as Exhibit "A" and incorporated herein; all of whom are hereinafter referred to
collectively as "Lessor", and Fitzgeralds Las Vegas, Inc., a Nevada corporation,
hereinafter referred to as "Lessee":
I
RECITALS
1. Lessor is owner of fee simple title in and to certain land located on
Fremont Street in Las Vegas, Nevada, the legal description of which land is set
forth more particularly on Exhibit "A" attached hereto, incorporated herein by
reference and made a part hereof for all purposes (the "Land").
2. Lessee intends to lease from Lessor land and improvements subject to
existing covenants, conditions, reservations and rights of way of record upon
which Lessee intends to construct a building or buildings, (hereinafter
"Building").
3. the "Leased Premises" shall be and mean the Land and air space and
subsurface of the Land; the building and improvements presently located on the
Land ("Existing Building") and any replacements thereof following its
demolition; the right to construct and maintain on and within the Land any
columns, supports and foundations necessary to support the proposed Building;
further, the right to tie in and fully integrate with a building on contiguous
property so as to provide, as the case may be, a building
and garage situated upon several contiguous lots, with provision for access
suitable to the use of that improvement upon the Leased Premises, and during
the term of this Lease and any renewal thereof, if any there be, an easement to
maintain on the Land the columns, supports and foundations for the support of
the Building or portion thereof to be erected and maintained on the Leased
Premises.
4. Each exhibit referred to herein shall be initialed by the signing
parties, numbered and attached to this Lease and shall then become a part
hereof.
II
TERM
In consideration of the Promises, of the rents hereinafter reserved, and
of the covenants hereinafter provided, Lessor does hereby demise and let to
Lessee the Leased Premises above described, to have and to hold the same with
all rights, privileges, easements and appurtenances thereunto attaching and
belonging unto Lessee, including but not limited to those specifically provided
herein, for and during the term of eighty-two (82) years and ____ months
commencing on the ____ day of ___________, 1995 and expiring on the 31st day of
August, 2077, A.D.
III
RENTAL
1. Lessee covenants, promises and agrees to pay to as basic rent, without
abatement, deduction or offset for said Leased Premises the total sum of One
Hundred Seven Thousand Two Hundred and Fifty Dollars ($107,250.00) per year
payable in basic monthly installments of Eight Thousand Nine Hundred Thirty
Seven and 50/100 Dollars ($8,937.50) per month (hereinafter referred to as the
"minimum monthly rent").
2
All rent payments shall become due and payable in advance on the first day of
each and every month and shall be paid on or before the fifteenth day of each
and every month, commencing on ___________, 1995, and on the first day of each
succeeding calendar month in advance until all rents herein reserved have been
fully paid. All rents shall be payable in lawful money of the United States of
America at Las Vegas, Nevada, or such other place as Lessors may from time to
time designate upon thirty (30) days previous written notice to Lessee.
Lessor and Lessee agree that the above rent shall be subject to adjustment
in accordance with the provisions of the succeeding paragraph (2).
2. Lessee shall, at all times during the term of this Lease, pay the
monthly rental as provided in the terms of this Lease, and such rental shall
be, and continue to be, the minimum basic monthly rental paid by Lessee to
Lessors hereunder, irrespective any change of economic conditions in the United
States and/or the State of Nevada; provided, however, that such minimum basic
monthly rental shall be increased, but not decreased below the original basic
rental of Eight Thousand Nine Hundred Thirty Seven and 50/100 Dollars
($8,937.50) per month, under the following circumstances and conditions:
The minimum monthly rent shall be adjusted upward or downward, but will
never be less than the initial minimum rent, on the anniversary date
beginning in the year 2000 and at the end of each thirty (30) month period
following thereafter, (the "Adjustment Date") based on the following
computation:
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The basis for computing the adjustment is the Consumer Price Index for the
month of ___________, 1995 (the "Index Date") as shown in the Consumer
Price Index (CPI-U for all Urban Consumers Los Angeles, Long Beach,
Anaheim) based on the year 1982-84 = 100 as published by the U.S.
Department of Labor's Bureau of Labor Statistics. The base figure for the
index date is ____.
The index for the first adjustment date shall be computed as a percentage
of the base figure. For example, assuming the base figure on the index date
is 110 and the index figure on the adjustment date is 121, the percentage
to be applied is 121/110 = 1.10 = 100 percent. That percentage shall be
applied to the initial minimum $8,937.50 net rent. In no case shall the
minimum monthly rent be less than the initial minimum monthly rent.
The index for the adjustment date shall be the one reported, in the month
previous to each adjustment date, in the U.S. Department of Labor's newest
comprehensive official index then in use and most nearly answering the
foregoing description from the base year 1982-1984 = 100 used for the base
figure above, the base figure used for calculating the adjustment
percentage shall first be converted under a formula supplied by the Bureau.
If the described index shall no longer be published, another generally
recognized as authoritative shall be substituted by agreement of the
parties. If they are unable to agree within ten (10) days after demand by
either party, the substitute index shall, on application of either party,
be selected by the chief officer of the San Francisco regional office of
the Bureau of Labor Statistics or its successor.
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3. It is the intention of these parties that the Lessor shall receive the
rents herein reserved, and all sums which shall or may become payable hereunder
by the Lessee under any contingency shall be free from all taxes, charges,
expenses, damages, and deductions of every kind or sort whatsoever, and the
Lessee shall and will, and hereby agrees to, pay all such as additional rent
and such other sums which, except for this Lease, would have been charged
against the property and payable by Lessor. The Lessee, however, shall not be
under any obligation to pay any income, gift, estate, inheritance, transfer,
state or succession tax, which Lessor may be required to pay by reason of any
existing law or any law which may hereafter be enacted.
4. If Lessee shall default in making any payment aside from rent required
to be made by Lessee, or shall default in performing any term, covenant, or
condition of this Lease on the part of Lessee to be performed, which shall
involve the expenditure of any money by Lessee, and which shall remain uncured
for a period of fifteen (15) days following the mailing of or giving of written
notice by Lessor to Lessee, Lessor, at Lessor's option may, but shall not be
obligated to make such payment, or, on behalf of Lessee, expend such sums as
may be necessary to perform and fulfill such terms, covenants, or conditions,
and any and all sums so expended by Lessor, with interest thereon at the rate
of ten percent (10%) per annum from the date of such expenditure, shall be and
be deemed to be additional rent, in addition to the fixed rent, and shall be
repaid by Lessee to Lessor on demand, but no such payment or expenditure by
Lessor shall be deemed a waiver of Lessee's default nor shall affect any other
remedy of Lessor by reason of such default.
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5. In the event that federal, state or local laws and ordinances shall at
any time during the term hereof be modified so as to constitute casino gaming
an illegal activity, then and in that event only, the parties shall enter into
negotiations for the purpose of agreeing upon a renegotiated rental. If the
parties should be unable to agree upon such a rental within a period of ninety
(90) days, the matter shall either be referred to a board of arbitration,
composed of qualified economists holding degrees of Ph.D. in economics, chosen
under the rules of the American Arbitration Association, in order to fix a new
rental consistent with then current economic value or this Lease shall be
terminated in conformity with Article XII hereof. During the period of any
rental negotiations under this Article III paragraph 5, or during any period of
time required for arbitration under this Article III paragraph 5, the rental
due shall be the basic rental referred to in Article III paragraph 1 hereof.
IV
EASEMENTS AND RESERVATIONS
As a part of the demise of the Lease Premises, Lessor hereby grants to
Lessee such of the following easements and rights of use for the Land for the
period of duration of the Lease:
1. As easement of support of the proposed Building shall continue during
the period of this Lease. It is further agreed that Lessee shall have the right
to use the air space or subsurface of the Leased Premises at all times during
the period of this Lease to construct a building in accordance with this
Agreement, support same, and to have the use and enjoyment thereof, subject to
the rights of Lessor as herein provided.
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2. The covenants herein contained shall be deemed to run with the Land as
a benefit to the Building and Land.
V
CONSTRUCTION AND COMPLETION
1. Lessee agrees to accept the premises in as is condition, except to the
extent otherwise expressly provided herein in Article XIX. During the entire
term hereof Lessor shall not be obligated to make any repairs or improvements
to the Leased Premises. Lessee agrees to make all repairs during the term of
this Lease necessary to keep the premises and any improvements placed thereon
in good repair and safe condition.
Any improvements existing on the property at the commencement of this
Lease shall become Lessee's property and Lessee may use, sell, demolish, remove
or otherwise dispose of the same to accommodate the new construction provided
for below:
Lessee, at its own expense, may:
a. Construct buildings, make structural additions and alterations,
repairs, replacements or improvements in or to the real property, provided that
said alterations, improvements, structural changes or repairs shall be of such
a nature as to enhance the value of the Leased Premises when made;
b. All such additions, alterations, repairs and replacements to the
real property and the fixtures permanently attached to said real property shall
upon the termination of this Lease, by operation of law or otherwise, become the
property of
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Lessors, and upon the termination of this Lease Lessee shall not remove any of
said fixtures permanently attached to the real property unless so directed by
Lessor.
c. After Lessee has obtained a building permit from the City of Las
Vegas for the construction of the building or buildings herein described, and
before commencement of construction, Lessee shall furnish or shall require its
contractor to furnish to Lessor payment and performance bonds with a surety
company authorized to do business in the State of Nevada for the completion of
such building or buildings, which bond shall inure to the benefit of the
Lessor. The manner and form of the bond may name other beneficiaries; but shall
be in sufficient amounts so as to protect the interests of Lessor.
d. The Lessee shall comply with, and shall require all contractors to
comply with, all federal, state and local laws and regulations pertaining to
employment, conditions, and hours of employment in connection with the
construction of the proposed Building on the Leased Premises. Should the Lessor
be damaged as a result of the breach of the provisions of this paragraph, the
Lessee shall pay to the Lessor the amount of any actual damages sustained.
e. On the completion date, the Lessee shall deliver to the Lessor a
copy of a recorded Notice of Completion, which shall state that all work has
been completed in accordance with the plans and specifications.
f. Within forty-five (45) days after the completion date, Lessee
shall deliver to the Lessor a written certification that the time for filing
mechanics' and
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materialmens' liens has expired, and that no mechanics' or materialmens' liens
encumber the property.
VI
INSURANCE
During the term hereof, Lessee shall, at Lessee's own cost and expense:
a. Keep the Building constructed upon the Leased Premises, pursuant
to the provisions hereof, and all alterations, changes, additions and
improvements insured for the benefit of Lessor against loss or damage by fire
(with extended coverage), in an amount equal to the full replacement value
thereof, all policies of which shall provide that loss, if any, payable
thereunder shall be first to the restoration of the premises, so long as
Lessee, its successors or assigns elect to restore, and then to Lessor, Lessee
and any lienholders as their respective interests may appear, and a copy of all
such policies with evidence of the payment of the premiums thereon shall be
delivered to Lessor. All said policies shall be placed with responsible
companies authorized to do business in the State of Nevada and rated A, or
better, in Best's Insurance Guide.
During the construction phase of the term during which time there shall be
no proprietary activities conducted by Lessee, Lessee shall secure and maintain
a policy of suitable construction injury or death or property damage insurance
having limits of liability in the amount of at least Five Million Dollars
($5,000,000) in respect to injuries to any one person, and the amount of at
least Five Million Dollars ($5,000,000) in respect to any one accident or
disaster, and at least Five Hundred Thousand Dollars ($500,000.00) for injury to
property showing Lessor as additional insureds.
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b. At completion of the Building, and in any event prior to the
occupancy of the structures by Lessee, Lessee shall provide, at its own sole
cost and expense, and maintain in force during the entire term hereof for the
benefit of Lessor, general accident, public liability and elevator insurance,
fully protecting Lessor against any and all liability occasioned by accident or
disaster having limits of liability in an amount that is usual and customary
for similar structures and occupancies in the City of Las Vegas, Nevada, but in
no event shall such limits of liability be lower than Five Million Dollars
($5,000,000) single limit. The insurance shall be reexamined by the parties
from time to time but no less often than every five (5) years during the term
hereof for the purpose of determining the limits of liability that are then
usual and customary for such structures and such occupancies in the City of Las
Vegas and the limits of liability for successive policies shall be adjusted in
conformity therewith.
Lessee may provide the insurance herein required under a general or master
policy or policies which may apply to other properties adjacent to the Leased
Premises; however, Lessor shall at all times appear as an additional insured
thereunder.
c. Lessee shall pay the premiums for renewal insurance when and as
due and deliver to Lessor, certificates evidencing such insurance to be in
force and effect with respect to insurance referred to in this Article and if
such premium, or any of them, shall not be so paid and the certificates shall
not be so delivered, Lessor may procure and/or pay for the same, and the amount
so paid by Lessor, with interest thereon at the rate of twelve percent (12%)
per annum for the date of payment, shall become due and payable by Lessee as
additional rent with the next or any subsequent installment of
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fixed rent due after such payment by Lessor; it being expressly covenanted that
payment by Lessor of any such premiums shall not be deemed to waive or release
the default in the payment thereof by Lessee or the right of Lessor to take
such action as may be permissible hereunder as in the case of default in the
payment of fixed rent.
d. Lessee shall not violate or permit to be violated any of the
conditions or provisions of any of said policies, and Lessee shall so perform
and satisfy the requirements of the companies writing such policies. All
policies referred to in this paragraph shall have a provision that the Lessor
will receive not less than a thirty (30) day notice of cancellation from the
insurance company.
VII
LESSOR NON-LIABILITY
Lessor shall not in any event whatsoever be liable for any injury or
damage to any person happening on or about the existing or proposed Building to
be constructed upon the Leased Premises, or for any injury or damage to the
proposed Building or the Leased Premises, or to any other person, firm,
association or corporation on or about the Existing Building or the proposed
Building. Lessee shall indemnify and save harmless Lessor from and against any
and all liability and damages, and from and against any and all suits, claims
and demands of every kind and nature, including reasonable counsel fees, by or
on behalf of any person, firm, association injury or damage, however occurring,
which shall or may happen on or about the Existing Building or the proposed
Building or the Leased Premises, and from and against any matter or thing
arising out of the condition, maintenance, repair, alteration, use,
occupation, or operation or the Existing Building or the proposed Building.
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VIII
DEFAULT
If Lessee shall at any time default in the payment of any rental herein
provided for or in the performance of any of Lessee's covenants, agreements or
obligations hereunder, and if Lessee fails to pay such rent or any other fixed
money obligations (monetary default) within thirty (30) days after receipt of
written notice from Lessor, or fails to cure any other default (non-monetary
default) (or commence to cure default and complete said cure within a reasonable
time), within sixty (60) days after receipt by Lessee of written notice from
Lessor, or should the Lessee make a general assignment for the benefit of
creditors or file a voluntary petition in bankruptcy, or be adjudicated
bankrupt or insolvent under the Federal Bankruptcy Act, or permit a receiver to
be appointed to take possession of a substantial portion of its assets or of
this leasehold, and such bankruptcy, insolvency or receivership proceeding not
be dismissed within sixty (60) days or should the Lessee abandon the Leased
Premises, then the Lessor may, either with or without notice or demand, and
subject to the rights of any secured party:
a. Declare said term ended and re-enter the Leased Premises or any
part thereof, either with or without process of law, and expel and remove
therefrom the Lessee or any or all parties occupying the same, using such force
as may be necessary to do so, and repossess and enjoy the same without
prejudice to any remedies that might be otherwise used for arrears of rent or
other breach hereof; and Lessor may recover the worth at the time of such
termination of the excess, if any, of
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the amount of rent reserved in this Lease for the remainder of the term over
the then reasonable rental value of the Leased Premises for the remainder of
the term; or
b. Without declaring this Lease ended, may re-enter the Leased
Premises and re-let the whole or any part thereof for the account of Lessee,
and may collect said rent and apply it on the amount due from Lessee hereunder,
less the expense of such reletting, including remodeling, the cost of removal
of Lessee, reasonable attorney's fees and the recovery of the difference from
Lessee.
The Lessee shall not by any re-entry or other act be deemed to have
terminated or accepted surrender of this Lease or the liability of the Lessee
for the total rent hereunder or any installment thereof then due or thereafter
accruing or for damages for said default.
IX
REMEDIES - NONEXCLUSIVE
The rights and remedies given to Lessor in this Lease are distinct,
separate and cumulative remedies, and no one of them, whether or not exercised
by Lessor, shall be deemed to be an exclusion of any of the others herein or by
law or equity provided.
X
PRESUMPTIVE EVIDENCE
In all cases hereunder, and in any suit, action or proceeding of any kind
between the parties, it shall be presumptive evidence of the fact of the
existence of a charge being due if Lessor or Lessee shall produce a bill,
notice or certificate of any public official entitled to give such bill, notice
or certificate to the effect that such charge appears by writing and has not
been paid.
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XI
NO ABATEMENT
No diminution of the amount of space used by Lessee for whatever cause
including fire or destruction of the Building shall entitle Lessee to any
reduction or abatement of fixed rent, or additional rent or other charges.
In the event of partial or total destruction of the Building by fire or
other casualty and the Lessee shall elect not to rebuild, Lessee shall
nevertheless be responsible for payment of the balance of the rental herein
reserved for the term hereof and the balance of insurance proceeds, if any,
shall be distributed then to the Lessor, Lessee and any lienholder, in the
manner provided in Article VI paragraph a hereof.
XII
TERMINATION, RESTORATION
On the last day of term hereof or the earlier termination thereof, Lessee
shall peaceably and quietly leave, surrender and give up to Lessor the Leased
Premises together with the proposed Building or any new building and all
alterations, changes, additions and improvements which may have been made upon
the Leased Premises (except furniture, furnishings, equipment and trade
fixtures put in at the expense of Lessee), in thorough repair and good order
and safe condition, ordinary wear and tear excepted, and Lessor shall accept
the Leased Premises and any improvements located thereon without further
obligation on the part of the Lessee. On said termination date, at the option
of the Lessor, the easements provided for in Article IV paragraph 1 may be
terminated by recordation in the real property records of the Clerk County,
Nevada
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Recorder of a document signed by Lessor and properly acknowledged, terminating
said easements.
On or before said termination date, Lessee shall remove all of Lessee's
personal property from the Leased Premises and Building, and all property not
so removed shall be deemed to have been abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Lessor without notice to
Lessee and without obligation to account therefor. Lessee shall pay to Lessor
the cost incurred by Lessor in removing selling, storing, destroying or
otherwise disposing of any such personal property; if the Leased Premises and
proposed Building be not so surrendered, Lessee shall make good to Lessor all
damage which Lessor shall suffer by reason thereof, and in addition shall
indemnify Lessor from and against all claims made by any succeeding tenant
against Lessor, founded upon delay by Lessee in delivering possession of the
premises to such succeeding tenant, so far as such delay is occasioned by the
failure of Lessee to surrender the premises.
XIII
QUIET ENJOYMENT
Lessor covenants that, if and so long as Lessee pays the fixed rent, and
other charges reserved in this Lease, and performs all of the terms, covenants
and conditions of this Lease on the part of Lessee to be performed, Lessee
shall quietly enjoy the Leased Premises subject, however, to the terms of this
Lease.
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XIV
DEFAULTS, NONWAIVER
Any default in the payment of the rent or other charges, or any failure of
Lessor to enforce the provisions of this Lease upon any default by Lessee,
shall not be construed as creating a custom of deferring payment or modifying
in any way the terms of this Lease, or as a waiver of Lessor's right to
terminate this Lease as herein provided, or otherwise to enforce the provisions
hereof for any subsequent default.
XV
GENERAL
1. Words of any gender in this Lease shall be held to include any other
gender and words in the singular number shall be held to include the plural in
the sense so required.
2. Whenever the Lessor's consent or approval to any act to be performed by
the Lessee is required under the terms of this Lease, the Lessor agrees that its
consent or approval will not be unreasonably withheld.
3. In the event suit is brought to enforce any provision hereof, or any
matter is submitted to arbitration hereunder, the prevailing party shall be
entitled to reasonably attorney's fees as set by the court or arbitration panel.
4. Lessee shall be entitled to take depreciation for federal and state
income tax purposes on the proposed Building and any new buildings constructed
under the terms and provisions of this Lease as a replacement thereof
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XVI
TAXES
1. The Lessee, in addition to the fixed rent provided for herein, shall pay
all taxes and assessments, including special assessments, upon the Leased
Premises, which are assessed during the lease term. All taxes assessed prior to,
but payable in whole or in installments after, the lease term shall be adjusted
and prorated, so that the Lessor shall pay its prorated share for the period
prior to the lease term and the Lessee shall pay its prorated share for the
lease term, which may come due subsequent to the lease term.
2. The Lessee shall furnish to the Lessor at any time upon request of the
Lessor, evidence reasonably satisfactory to Lessor that taxes have been paid to
the appropriate taxing authority.
3. Lessee shall have the right, subject to any restrictions which any
leasehold mortgage may hereafter make, and at its sole cost and expense (in its
own name or in the names of Lessor, or both, as it may deem appropriate) to
contest in good faith the imposition or amount of any such tax assessment, or
other charge payable by Lessee hereunder, and payment of same after final
adjudication of the legality and amount of the same shall be a sufficient
compliance with this covenant. If Lessee contests any taxes, assessments or
charges, Lessee may withhold or defer payment, or pay under protest, but shall
protect the Lessor and the Leased Premises from any lien by adequate surety bond
or other appropriate security.
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XVII
CONDEMNATION
If, during the continuance of this Lease, any portion of the Leased
Premises shall be appropriated for state or other public use, there shall be an
appropriate abatement or reduction of rental on account of such appropriation of
a part of said premises. Any compensation which may be awarded on account of any
such appropriation of any part of said premises shall be fairly allocated
between the fee and the leasehold estate in accordance with the damage or loss
suffered by each, according to law and rules of practice usual in such cases,
and such part of the award as may be fairly allocated to the leasehold estate
shall be paid to Lessee and the balance shall be paid to Lessor. If the premises
covered by this Lease be taken either in their entirety or such a substantial
extent that, as a practical matter, the premises cannot be used for the purpose
for which they are hereby leased, by virtue of eminent domain or for any public
or quasi-public use or improvement, separate awards for damages to Lessor and
Lessee shall be made in accordance with law and rules of practice usual in such
cases, and each of the parties shall be entitled to receive and retain such
awards as shall be made to it. If there shall be a leasehold mortgagee, however,
the damage award the Lessee would receive shall be first applied in liquidation
of the leasehold mortgage and the balance thereof shall be retained by Lessee.
In such event, this Lease shall terminate and the rents herein provided for
shall abate as of the physical taking of the Leased Premises. Such termination
shall not affect the rights of the parties to the awards and both Lessor and
Lessee shall have the right to contest and appeal any condemnation or award for
their own account and at their own expense.
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XIX
INDEMNITY
1. The Lessor shall not be liable for any damage, nor shall this Lease be
affected, nor shall there be an abatement in or of the rent, by reason of any
failure of water supply, gas supply, or electrical current, unless such failure
shall arise from or be due to negligence on the part of Lessor.
2. The Lessor shall not be liable for any damage, nor shall this Lease be
affected, nor shall there be any abatement in or of the rent by reason of any
curtailment of or interference with light or other incorporeal hereditaments by
anybody other than the Lessor or caused by operations by or for the city in the
construction of any public or quasi-public works, nor by reason of any space
taken to comply with any law, ordinance, or order of any governmental authority.
The Lessor shall not be obligated to perform in any way, manner of form, under
this Lease, or by virtue hereof, other than as specifically in this Lease set
forth and provided.
3. The Lessee covenants to indemnify and save harmless the Lessor against
any and all claims arising from the conduct or management of or from any work
or thing whatsoever done in or about the Leased Premises or any building or
structure thereon or demolished and removed therefrom or the equipment thereof
during said term, or arising during said term from any condition of any street
or sidewalk adjoining the premises of any vaults, passageways or spaces
therein or appurtenant thereto, or arising from any act or negligence of the
Lessee or any of its agents, contractors or employees, or arising from any
accident, injury or damage whatsoever, to any person or persons, or to the
property of any person, persons, corporation or corporations,
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occurring during said term on, in, or about the Leased Premises or on or under
the sidewalks in front thereof, of the lobby and common area, and from and
against all costs, counsel fees, expenses and liabilities incurred in or about
any such claim or any action or proceeding brought thereon; and in case any
action or proceeding be brought against the Lessor by reason of any such
claim, the Lessee on notice from the Lessor, shall resist and defend such
action or proceeding by counsel satisfactory to the Lessor.
4. The Lessee shall hold the Lessor harmless against any liability or loss
including any and all claims or damages arising after the commencement of said
Lease, and any orders, decrees or judgments which may be entered therein,
brought for damages or alleged damages resulting from any injury to persons or
property, or from loss of life sustained in or upon the demised property and
the buildings and improvements thereon, or in or upon the sidewalks or curbs in
front of or appurtenant thereto, by any person or persons whatsoever.
5. Lessor expressly represents to the best of its knowledge that the
property has not been used to store dispose of Hazardous Materials as defined
below on, from, or affecting the aforedescribed real property in any manner
which violates federal, sate or local laws, ordinances, rules, regulations or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of Hazardous Materials on, from or
affecting the said property in any manner which violates federal, state or
local laws, ordinances, rules, regulations or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials.
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Lessor has not received a notice which has not been fully remedied, or
become aware that Lessor may be a responsible party under currently applicable
law as to Hazardous Materials that may have been disposed of by Lessor or its
agents or employees, and Lessor is not aware of any underground storage tanks
located on the said property.
For purposes of this Agreement, "Hazardous Materials" includes, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 USC Section 9601, et seq.), and Hazardous Materials
Transportation Act, as amended (42 USC Section 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 USC Section 9601, et seq.) and in
the regulations adopted and the publications promulgated pursuant thereto, or
any other applicable federal, state or local government law, ordinance, rule or
regulation.
Lessor warrants and represents that there is no asbestos contained or
present within the Building or any fixtures affixed thereto, and that there are
no underground storage tanks in, on or about the property. Should said
representation prove to be inaccurate and asbestos or underground tanks are
discovered to exist in the Building, Lessor shall be responsible for the cost of
removal of same from the premises and remediation of any damages attributable
thereto.
Lessee shall not allow a discharge of any kind or nature whatsoever of any
hazardous material, hazardous wastes, hazardous substance or petroleum products
or
21
wastes as is now or may hereafter be defined in any federal, state or other
governmental law, statute, regulation or ordinance. In addition to all other
provisions of this Lease, Lessee agrees that it shall, as its sole cost and
expense, comply with all laws, statutes, ordinances, rules and regulations of
any governmental authority (agency) having jurisdiction thereof governing
environmental matters, including, but not limited to, any discharge into the
air, waterways, sewers, soil or groundwater of any hazardous material or
hazardous waste.
Lessor and its agents and representatives shall have access to the Leased
Premises under Lessee's control or any occupant of the property claiming under
the Lessee for the purposes of ascertaining the nature of the activities being
conducted thereon and to determine the type, kind and quantity of all products,
materials and substances brought onto the property or made or produced thereon.
Lessor and its agents and representatives shall have the right, but not the
duty, to take samples and quantities sufficient for scientific analysis of all
products, by-products, materials and substances present on the Leased Premises
including, but not limited to, samples of products, materials or substances
brought onto or made or produced on the Leased Premises by the Lessee or any
occupant claiming on the Leased Premises by the Lessee or any occupant claiming
under Lessee or otherwise present on the Leased Premises.
All of said sampling and testing shall be at Lessee's expense, but shall be
performed no more often than once each lease year unless Lessor has a reasonable
belief that a discharge has occurred. Should Lessee represent that no discharge
has
22
occurred, and should Lessor nonetheless proceed with sampling and testing which
confirms Lessee's representations, such testing shall be at the expense of
Lessor.
If, upon analysis of any such samples, it is determined by either the
agency or any outside firm or company retained by Lessor to perform said
analysis, that the Lessee or any occupant of the Leased Property claiming under
the Lessee is using the Leased Premises in violation of any environmental law,
statute, ordinance, rule or regulations pertaining thereto, upon written notice
by Lessor to Lessee or any occupant claiming under the Lessee, Lessor or any
occupant of the Leased Premises claiming under the Lessee shall have thirty
(30) days from and after said notice to bring the use of the Leased Premises
into full compliance with any applicable environmental law, statute, ordinance,
rule or regulation and, in the event that Lessee, or any occupant claiming
under Lessee fails to bring the use of the Leased Premises into full compliance
thereof, Lessor shall have the right to immediately terminate this Lease in the
event that the Lessee is in default or to terminate any sublease in the event
that any occupant is in default and to evict the offending party from the
Leased Premises.
Lessee further agrees to indemnify Lessor against any and all liability
resulting from a violation of any environmental law, statute, ordinance or rule
or regulation pertaining thereto, as may now or hereafter be enacted,
including, but not limited to a violation of the National Environmental Policy
Act, 42 USC Section 4321 et seq., the Resource Conservation Recovery Act (RCPA)
42 USC Section 6901 et seq., the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA) 42 USC Section 6911, et seq., or any
violation of regulations now in effect or hereafter promulgated by the
23
United States Environmental Protection Agency, or any other federal, state or
local governmental authority, pursuant to the aforementioned acts, which
violation occurs on or about the Leased Premises during the term of this Lease.
Lessee further agrees to indemnify Lessor against any and all liability
resulting from the aforementioned violation which occurs during the term of
this Lease, even if said violations are not discovered until after the
expiration date of this Lease. Any such liability shall include, but not be
limited to, any costs, penalties, assessments, expenses or fees, including
reasonable attorney's fees, incurred by the Lessor in connection with bringing
the Leased Premises into full compliance with the applicable environmental laws,
statutes, ordinances, rules and regulations and shall be paid for by the Lessee
immediately upon demand, and in the event that Lessor is required to initiate
legal action to enforce the provisions of this paragraph, Lessor shall be
entitled in addition to said amounts, to recover its reasonable attorney's fees
incurred in connection with the enforcement of this section and shall be
entitled to such additional recoveries as may be granted in law or in equity.
Lessee further agrees to incorporate the provisions of this paragraph into any
sublease which it may enter into with any sublessee.
Lessee shall, upon the written request of Lessor, supply Lessor with
copies of all notices, reports, correspondence and submissions made by Lessee to
the United States Environmental Protection Agency, the Nevada Environmental
Protection Agency, the State Fire Marshall, the United States Occupational
Safety and Health Administration or any other local, state or federal authority
which required submission of any information concerning environmental matters or
hazardous waste or substances
24
pursuant to any applicable laws and regulations promulgated thereunder and with
copies of all notices, reports, correspondence and submissions received by
Lessee from any of such entities.
At least six (6) months prior to the termination of this Lease, Lessee
shall, at Lessee's own expense, conduct an environmental audit reasonably
satisfactory to Lessor to insure that there has been no spill or discharge of a
hazardous substance or waste at the Leased Premises and to ensure the integrity
of any underground storage tanks installed and utilized by Lessee. Said
environmental audit shall be supplied to Lessor at least thirty (30) days
prior to the termination of this Lease. In the event the environmental audit
indicates any hazardous waste or spill on the Leased Premises, or that any
underground storage tank installed and utilized by Lessee has leaked or is
leaking, Lessee shall undertake any and all actions at Lessee's own expense
required by Lessor or any governmental entity in order to adequately clean up
said spill or discharge and to ensure the integrity of any underground storage
tanks and shall post a surety bond satisfactory to Lessor to ensure performance
of the requisite clean up actions.
The provisions of these paragraphs shall survive the expiration or earlier
termination of the Lease. In addition to any and all other rights and remedies
provided in this Lease, Lessee's failure to abide by the terms of this section
shall constitute an event of default as defined herein, it being further
provided that in addition to any and all other remedies provided in this Lease,
Lessor may bring an action for injunction to cause Lessee to comply with the
provisions of said sections.
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XX
COMPLIANCE WITH LAW
Lessee shall perform, execute and fulfill during the term of this Lease,
all applicable laws of the United States, all applicable laws of the State of
Nevada, and all applicable ordinances of the city or county applicable to said
Leased Premises and to the construction, remodeling or repairing of the proposed
Building, and all ordinances and requirements imposed by the health, sanitary or
police departments of the City of Las Vegas for the correction or abatement of
any nuisance or nuisances in, upon or connected with the said Leased Premises
during the term of Lease without expense to Lessor. Lessee further agrees to
take good care of the Leased Premises above mentioned and of the proposed
Building and improvements within the same, and of all fixtures, and suffer no
waste, and at the expense of Lessee to keep said Leased Premises in good repair,
keep the plumbing work, closets, pipes and fixtures belonging thereto in good
repair and keep the water connections free from ice and other obstructions to
the satisfaction of the police and other municipal authorities of the City of
Las Vegas during the term of this Lease, and at the end or other termination of
the term to deliver up the Leased Premises with all improvements thereon and
therein in good order, natural wear and tear only excepted.
XXI
ASSIGNMENT
Lessee shall not assign any interest in this Lease, except for subleases
of less than all of the premises executed in the regular course of business of
Lessee or its assignee, without first providing thirty (30) days' written
notice containing a verified
26
current financial statement of the proposed assignee to Lessor. Lessee shall
have the right at any time to assign its interest under this Lease, so long as
such written notice has been furnished Lessor and Lessor has raised no
objection based on the financial situation of the proposed assignee provided,
however, that in such event, and if the financial worth of the assignee shall be
equal to or greater than that of Lessee, such assignment shall relieve Lessee
of its obligations and duties under the terms and conditions of this Lease,
and any assignee of this Lease shall expressly assume, and by reason of such
assignment shall be considered as having assumed, all of the obligations and
duties of Lessee hereunder as set forth and expressly agreed to in writing by
Lessee, Lessor and assignee.
Lessor shall have at all times the right to object in writing to any
assignment within thirty (30) days of receipt of written notice from the Lessee
of its intent to assign. Such objection shall only be based upon the fact that
the net worth of the proposed assignee is inferior to that of Lessee or the then
existing assignee. If such objection is made, the assignment shall not be
effective until it can be established that the net worth of the proposed
assignee is in fact equal to or greater than the Lessee or existing assignee.
XXII
RIGHT TO MORTGAGE LEASEHOLD INTERESTS
1. Lessee shall have the right to mortgage this Lease (such a mortgage
being hereinafter called a "Leasehold Mortgage") and to assign, pledge or
hypothecate the same as security for one or more mortgages provided that (i) no
mortgagee or trustee, or anyone claiming by, through or under such mortgage or
deed of trust shall by virtue
27
thereof acquire any greater interest in the Leased Premises and in any building
or improvements constituting a part thereof than Lessee then has under this
Lease, and (ii) such mortgage or deed of trust shall be subject and subordinate
to all of the conditions, covenants and obligations of this Lease and to
Lessor's rights hereunder, except for any provisions thereof requiring any cash
or other security for Lessee's performance of this Lease. The mortgagee or
trustee in any such mortgage or deed of trust, and the holders or owners of the
indebtedness secured by said mortgage or deed of trust, shall not become
personally liable on the obligations of this Lease unless or until they or
their successors or assigns shall become the owners of the leasehold estate
created by this Lease. Lessee shall remain liable on all of its obligations
hereunder notwithstanding any such mortgage or deed of trust, any default
thereunder or any foreclosure thereof.
2. As used herein the terms "mortgage" and "Leasehold Mortgage" also
include a deed of trust or other security instrument and the terms "mortgagee"
and "Leasehold Mortgagee" include the beneficiary under a deed of trust, the
secured party under any other security agreement, and a person or entity which
desires to make a loan to Lessee which is to be secured by the Leased Premises.
As used herein, the term "foreclosure" shall include both judicial foreclosure
and the exercise of a power of sale contained in a deed of trust.
3. If Lessee mortgages this Lease in accordance with paragraph 1 above,
and if a Leasehold Mortgagee shall have served on Lessor, by registered or
certified mail, return receipt requested, before any default shall have
occurred under this Lease, a
28
true copy of such Leasehold Mortgage and a written notice specifying the name
and address of such Leasehold Mortgagee, Lessor shall give to such Leasehold
Mortgagee, at the address last furnished by such Leasehold Mortgagee, a copy of
each notice of default by Lessee under this Lease at the same time as, and
whenever, such notice of default shall thereafter be given by Lessor to Lessee.
After Lessor shall have received a notice from the Leasehold Mortgagee pursuant
to this paragraph 3, no notice of default from Lessor to Lessee shall be deemed
to have been given to Lessee unless and until a copy thereof shall have been so
given to the Leasehold Mortgagee.
4. The Leasehold Mortgagee shall have the right to remedy any default under
this Lease or cause the same to be remedied and Lessor shall accept such
performance by or at the instance of such Leasehold Mortgagee with the same
force and effect as if it had been performed by Lessee under this Lease. In
order to allow a Leasehold Mortgagee to cure such defaults under this Lease,
there shall be added to any grace period granted to Lessee by the terms of this
Lease for curing any default (a) an additional thirty (30) days in case of
default in payment of basic rent and any additional rent, and (b) an additional
forty-five (45) days in the case of all other defaults, and such additional
grace periods shall not begin to run until the later of (i) the expiration of
any grace period granted to Lessee by the terms of this Lease for curing any
default and (ii) the date upon which Lessor delivers to such Leasehold
Mortgagee a written notice of such default.
5. Lessor shall not give or serve any notice of termination of this Lease
upon Lessee without first delivering to any such Leasehold Mortgagee a written
notice of
29
Lessor's intent to terminate this Lease and giving any such Leasehold Mortgagee
sixty (60) days from the date it received such notice to institute foreclosure
proceedings or such other proceedings as may be legally available to said
Leasehold Mortgagee, and Lessor shall not thereafter give or serve notice of
termination of this Lease if and so long as such Leasehold Mortgagee shall be
acting to complete such foreclosure or other proceedings with diligence and
continuity, provided any such Leasehold Mortgagee shall, within twenty (20) days
after receiving such written notice from Lessor, (i) have cured any then
existing monetary default, and (ii) be actively engaged in the curing of any
then existing nonmonetary default which can be cured by such Leasehold
Mortgagee, and provided that during all such times, except as set forth herein,
any such Leasehold Mortgagee shall continue to (i) keep this Lease free from any
monetary default and (ii) be actively engaged in the curing of any nonmonetary
default under this Lease which can be cured by such Leasehold Mortgagee. Nothing
contained herein shall require any Leasehold Mortgagee, as a condition to the
exercise of its rights hereunder, to cure any default of Lessee which is not
reasonably susceptible of being cured by such Leasehold Mortgagee.
6. In the event this Lease is terminated prior to its stated expiration
date, Lessor shall deliver written notice of such termination to any Leasehold
Mortgagee within ten (10) days after the date this Lease is terminated. If a
Leasehold Mortgagee delivers to Lessor, within thirty (30) days after receiving
a notice of the termination of this Lease from Lessor, a written request to
Lessor to enter into a new Lease of the Leased Premises, and if such written
request is accompanied by payment of all amounts then
30
due to Lessor under this Lease and by the curing of any other defaults under
this Lease which are susceptible of being cured by the payment of money, Lessor
shall enter into a new lease of the Leased Premises with the Leasehold
Mortgagee for the remainder of the term of this Lease. Such new lease of the
Leased Premises shall be effective as of the date this Lease is terminated and
shall be at the basic rent and additional rent and upon the covenants,
agreements, provisions and terms of this Lease.
7. No Leasehold Mortgagee or holder of indebtedness under any mortgage, or
purchaser at foreclosure sale thereunder, shall incur or be required to assume
liability for the payment of rent under this Lease or for the performance of
any Lessee's covenants and agreements contained herein, unless and until such
Leasehold Mortgagee or holder of indebtedness shall have become the owner of
the leasehold estate hereunder by foreclosure or by assignment in lieu of
foreclosures, whereupon the liability of any such person shall be only such as
may arise by operation of law by reason of privity of estate.
8. The granting by Lessee of a Leasehold Mortgage pursuant to the terms
and conditions of this Lease shall in no manner be construed to constitute a
subordination of or agreement by Lessor to subordinate Lessor's reversionary
interest in the Leased Premises.
9. In addition to the foregoing rights, a Leasehold Mortgagee may, at any
time permitted under its loan documents, foreclose or otherwise realize upon
its lien on the leasehold estate created by this Lease and Lessor will
recognize the person, firm or corporation acquiring the leasehold estate
created by this Lease as the Lessee
31
hereunder with all of the rights and estate of Lessee, provided such person,
firm or corporation agrees to assume and be bound by all of the terms,
covenants and conditions of this Lease.
10. Notwithstanding any other provisions of this Lease, any sale of this
Lease and of the leasehold estate created by this Lease in any proceedings for
the foreclosure of any Leasehold Mortgage, or the assignment or transfer of
this Lease and of the leasehold estate created by this Lease in lieu of the
foreclosure of any Leasehold Mortgage shall be deemed to be a permitted sale,
transfer or assignment of this Lease and of the leasehold estate created by
this Lease. Any Leasehold Mortgagee or other acquirer of the leasehold estate
of Lessee pursuant to foreclosure, assignment in lieu of foreclosure of other
proceedings may, upon acquiring Lessee's leasehold estate, without further
consent of Lessor, sell and assign the leasehold estate on such terms and to
such persons and organizations as are acceptable to such Leasehold Mortgagee or
acquirer and thereafter be relieved of all obligations under this Lease,
provided that such assignee has delivered to Lessor its written agreement to be
bound by all of the provisions of this Lease.
11. Lessor agrees from time to time to amend this Lease to the extent
reasonably necessary to satisfy a prospective leasehold mortgagee provided such
proposed amendments do not impose a lien or other rights on the reversionary
interest of the Lessor or materially and adversely affects the rights of Lessor
under the terms of the Lease. The reasonable expenses incurred by Lessor in
considering the proposed amendment shall be paid by the Lessee.
32
12. Lessor shall, without charge, at any time and from time to time
hereafter, within thirty (30) days after written request from Lessee to do so,
certify by written instrument, duly executed and acknowledged, to any leasehold
mortgagee or purchaser, or proposed leasehold mortgagee or proposed purchaser,
or any other person, firm or corporation specified in such request: (a) as to
whether this Lease has been supplemented or amended, and if so, the substance
and manner of such supplement or amendment; (b) as to the validity and force and
effect of this Lease, in accordance with its tenor; (c) as to the existence of
any default hereunder; (d) as to the existence of any offsets, counterclaims or
defense hereto on the part of Lessee; (e) as to the commencement and expiration
dates of the term of this Lease; and (f) as to any other matters as may be
reasonably so requested. Any such certificates may be relied upon by Lessee and
any other person, firm or corporation to whom the same may be exhibited or
delivered, and the contents or such certificate shall be binding on Lessor.
XXIII
RIGHT OF FIRST REFUSAL
Lessor shall not sell or assign its interest in and to the Leased Premises
and its remainder therein without first offering such interest and remainder to
the Lessee pursuant to the terms hereof. In the event Lessor receives a bona
fide third party offer to purchase its interest and remainder in and to the
Leased Premises, Lessor shall, prior to accepting such offer to purchase, notify
Lessee as to the terms and conditions of such offer. Thereafter, and for a
period of thirty (30) days after receipt of such notice, Lessee may, upon
written notice to Lessor, elect to purchase such interest and remainder upon the
same terms and conditions of such offer. In the event Lessee fails
33
to elect to purchase Lessor's interest and remainder in and to the Leased
Premises within said thirty day period, then Lessor may accept such bona fide
offer on the terms and conditions no more favorable to Lessor than those
noticed to Lessee at any time within six (6) months thereafter. Nothing in this
paragraph shall restrain the right of the Lessor to transfer or assign its
interest to a trustee, or to the beneficiaries of the trust of which it is
trustee, or for the beneficiaries to transfer to each other as to third parties
subject to the provisions of this paragraph, so long as said transfer or
assignment is subject to the provisions regarding bona fide third party offers.
XXIV
ZONING
It is mutually understood and agreed and warranted that the Land herein
demised and leased is zoned by the City of Las Vegas as required for the
building and improvements now located thereon, which warranty is a material and
essential element in making this Lease, and that if such zoning were to be
changed by the City of Las Vegas or other governing authority to prevent the
construction of the said Building, then and in that event, Lessee shall, at its
option, have the right to terminate this Lease, the Lease shall become null and
void, and no rent for the remainder of the term of extension thereof as
aforesaid shall become due to the Lessor, its legal representatives or assigns.
XXV
PARTIES IN INTEREST
It is further covenanted and agreed that all the expressions, terms,
conditions, provisions, agreements and warranties herein shall extend to and be
binding upon, or
34
inure to the benefit of, as the case may be, each and every one of the heirs,
executors, administrators and assigns of Lessor and Lessee, as if in every case
expressed; and all the conditions, covenants and limitations of this Agreement
shall be and they are hereby covenants running with the Land.
XXVI
TIME OF ESSENCE
Time is of the essence in the performance of this Lease.
XXVII
HEADINGS
The descriptive headings of the provisions of this Lease are inserted for
convenience only and shall not be deemed to affect the meaning or construction
of any of the provisions hereof.
XXVIII
LEASE TO BE RECORDED
A memorandum of this Lease shall be recorded.
XXVIV
NOTICES
All notices hereunder shall be sent as follows:
LESSOR: John A. Kramer, Sr. Trustee
231 North Glenroy Place
Los Angeles, California 90049
LESSEE: Fitzgeralds Las Vegas, Inc.
301 Fremont Street
Las Vegas, Nevada 89101
Attn: President
35
XXVI
ATTORNEYS FEES AND COSTS
The prevailing party in any arbitration or litigation shall be entitled to
reasonable attorney's fees and costs from the losing party. In the event that
either Lessor or Lessee shall, by reason of acts of omission or commission in
violation of the terms of this Lease, or by any other reason arising out of the
Lessor-Lessee relationship, be made a party to such litigation commenced by a
person other than the parties hereto, then such party performing said act of
suffering the same omission shall pay all costs, expenses and reasonable
attorney's fees incurred by the other party which arise from or are in
connection with such litigation.
XXVII
APPLICABLE LAW
The laws of the State of Nevada shall govern the validity, construction and
effect of the Agreement.
IN WITNESS WHEREOF, the parties hereto have subscribed their names this
____ day of ________, 1995; this indenture being executed in quadruplicate.
LESSOR: LESSEE:
Fitzgeralds Las Vegas, Inc.
/s/ John A. Kramer, Sr. By:
- ---------------------------- -----------------------
John A. Kramer, Sr., Trustee President
/s/ Helen M. Kramer
- ----------------------------
Helen M. Kramer
36
/s/ Elizabeth Thatcher Brooks
- -----------------------------
Elizabeth Thatcher Brooks
- -----------------------------
Betty Bennett, Executrix of
the estate of John David Kramer
- -----------------------------
- -----------------------------
- -----------------------------
37