EXHIBIT 10.9
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into on this 1st day of
September, 1978, by and between JEWEL FRENCH NOLEN and JULIE LaMOYNE NOLEN,
DAVID KRAMER, and BETTY BENNETT and RICHARD JAMES TINKLER, the interest of each
in and to the demised 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 M.B.
DALITZ, hereinafter referred to as "Lessee":
I
RECITALS
(1) Lessor is owner of fee simple title in and to certain land located at
123-129 South Third 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 proposes to lease from Lessor the Land and construct upon such
Land a building or buildings referred to hereafter as "Building".
(3) The Leased Premises shall be and mean the Land and air space and
subsurface of the land hereinbefore described; the leased Premises shall also
include the right to construct and maintain on and within the Land the columns,
supports and foundations necessary to support the proposed building; further,
the right to tie in 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 upon 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 on
the Leased Premises.
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(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 premises, 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 the 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 ninety-nine (99) years and commencing on the
1st day of September, 1978, and expiring on the 31st day of August, 2077, A.D.
III
RENTAL
(a) Lessee covenants, promises and agrees to pay to as basic rent for said
leased premises the total sum of Five Million Eight Hundred Ninety-five
Thousand Dollars, as follows: Forty Five Thousand Dollars ($45,000.00) per year
payable at the rate of Three Thousand Seven Hundred Fifty Dollars ($3,750.00)
per month during the first three years of the term hereof, and thereafter Sixty
Thousand Dollars ($60,000.00) per year payable in basic monthly installments of
Five Thousand Dollars ($5,000.00) per month (hereinafter referred to as the
"basic monthly rental"). All rent payments shall become due and payable in
advance on the 1st day of each and every month and shall be paid on or before
the 15th day of each and every month, commencing on September 1, 1978, and on
the 1st day of each succeeding calendar month in advance until all rents herein
reserved have been
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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 (b).
(b) 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 of 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 Three Thousand Seven Hundred Fifty Dollars ($3,750.00) during the
first three (3) years of the term and thereafter Five Thousand Dollars
($5,000.00) per month, under the following circumstances and conditions:
(1) At the present time there is being issued by the United States
Department of Labor, Bureau of Labor Statistics, a Consumer-Price Index, For All
Urban Consumers-U.S. City Average, based upon the average 1967 equalling 100
points.
(2) It is stipulated and agreed, for the purpose of this lease
agreement, that the United States Consumer Price Index for all Urban
Consumers-U.S. City Average, average as of July 1, 1978, is the sum of 196.7
points.
(3) At the expiration of the first thirty six (36) months of the term
of this lease, the Consumer Price Index For All Urban Consumers-U.S. City
Average last issued by said United States Department of Labor closest to such
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expiration date shall be examined by the parties hereto, and if the said
Consumer Price Index shall be 196.7 points or more, then and in such event the
increase of rent in addition to said Sixty Thousand Dollars ($60,000.00) per
year, which shall be due for the fourth (4th) and successive years, shall be
one percent (1%) of $60,000.00 for each 1.967 points increase above 196.7
points, which is the average index point number as of July, 1978. The increase
at that time added to the basic yearly rental of $60,000.00 shall continue to
be paid by Lessee for the next thirty (30) months, such increase to be paid in
equal monthly installments in the same manner as is hereinabove provided in
regard to the regular rental.
(4) At the end of each thirty (30) month period following the first three
(3) year period of this lease, the Consumer Price Index For All Urban
Consumers-U.S. City Average shall again be examined in like manner as stated
above, and if it is found at the date of examination of the last index issued
nearest the date of the expiration of such thirty (30) month period that the
price index has increased above 196.7 or fallen below 196.7, then the rent
shall be increased over or reduced toward the base rent at the rate of one
percent (1%) for each 1.967 point increase above or reduction below 196.7 and
shall continue at this rate for the next thirty (30) month period, such
increase or decrease to be paid in equal monthly installments in the same
manner as is herein provided in regard to the regular rental.
(5) In no event shall the rent under this lease ever be less than SIXTY
THOUSAND DOLLARS ($60,000.00) per year for any year of the term hereof
following the first three (3) years.
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(6) If at the expiration of three (3) years from the commencement of
the term hereof, or at the expiration of any of the following thirty (30) month
periods, there is no United States Department of Labor Consumer Price Index
published, but such an index is published by some other agency or department of
the United States Government, then such latter index shall be used in lieu of
the United States Department of Labor Consumer Price Index, after proper
adjustment for changes made in compiling such index in order to fulfill the
intent of the parties to maintain the purchasing power of the rentals reserved.
(7) If there is no similar or comparable index published by any agency
of the United States Government, then Lessor and Lessee shall endeavor to arrive
at a fair average, and if they are unable so to do, then either Lessors or
Lessee may by written notice elect to submit the matter for determination to a
board of arbitration, composed of qualified economists holding degrees of Ph.D.
in economics, under the rules of the American Arbitration Association, with a
view that Lessor shall be compensated as accurately as possible as heretofore
provided, in accordance with the increase in cost of living in order to maintain
the purchasing power of the rents reserved.
(c) 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
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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.
(d) 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 arbitration as provided in
paragraph III(b)(7) hereof in order to fix a new rental consistent with then
current economic value or terminate this lease in conformity with paragraph XII
hereof. During the period of any rental negotiations under this paragraph, III
(d), or during any period of time required for arbitration under this paragraph
III (d) the rental due shall be the basic rental referred to in paragraph III
(a) hereof.
IV
EASEMENTS AND RESERVATIONS
As a part of the demise of the Leased Premises, Lessor hereby grants to
Lessee such of the following easements and rights of use for the land as their
fee simple absolute imparts for the period of duration of the Lease:
(1) An 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
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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.
(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 the physical condition which
said premises and property exist at the commencement of this lease. During the
entire term hereof Lessor shall not be obligated to make any repairs or
improvements to the demised 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 a safe condition.
It is specifically covenanted and agreed that Lessee shall be authorized
during the term of this lease to construct buildings, make structural additions
and alterations, repairs, replacements or improvements in or to the real
property and the installation of fixtures which may be attached to said real
property, provided that any alterations, improvements, structural changes or
repairs shall be of such a nature as to enhance the value of the demised
Premises at the time same are made; provided, however, that 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 Lessors, and
upon the termination of this lease Lessee shall not remove
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any of said fixtures permanently attached to the real property unless so
directed by Lessor.
(2) Prior to the commencement of construction and after Lessee shall
have obtained a building permit from the City of Las Vegas for the construction
of building or buildings herein described on the Land, Lessee shall furnish or
shall require its contractor to furnish Lessor a bond with a responsible 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.
(3) 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.
(4) During the term hereof, Lessee shall, at Lessee's own cost and
expense, promptly observe and comply with all present or future laws, rules,
requirements, orders, direction, ordinances and regulations of the United States
of America or of the State, County or City governments, or of any other
municipal, governmental or lawful authority whatsoever, affecting the Demised
Premises or appurtenances of the Proposed building or any part thereof, and of
any and all of its or their departments, bureaus or officials and of the Board
of Fire Underwriters, if any, of the governmental subdivision in which the
Demised Premises and Proposed
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Building is situated; and/or any other body exercising similar functions, and
of all insurance companies writing policies covering the Demised Premises and
Proposed Building, or any part thereof, whether such laws, rules, requirements,
orders, directions, ordinances or regulations relating to structural
alteration, changes, additions, improvements or repairs, inside or outside,
extraordinary or ordinary, or otherwise, to or in and about the demised
Premises, or any buildings thereon, or to the vaults, passageways, franchises
or privileges appurtenant thereto or connected with the enjoyment thereof, or
to changes or requirements incident to or as a result of any use or occupation
thereof, or otherwise, and whether the same are enforced at the commencement of
the term hereof, or at any time in the future enacted or directed; and Lessee
shall pay all costs, expenses, claims, losses, damages, fines and penalties,
including reasonable counsel fees, that may in any manner arise out of or be
imposed because of the failure of Lessee to comply with these covenants.
(5) If Lessee shall desire to contest the validity of any such law, rule,
requirement, order, direction, ordinance or regulation, Lessee may, at Lessee's
own cost and expense, carry on such contest and such noncompliance by Lessee
during such contest shall not be deemed a breach, provided that Lessee shall
indemnify the Lessor against the cost thereof and against all liability for any
costs, expenses, claims, losses, damages, fines or penalties, including
reasonable counsel fees, resulting from or incurred in connection with such
contest and noncompliance.
(6) It is further understood and agreed that Lessee shall notify Lessor in
writing at least thirty (30) days prior to the commencement of construction of
any repairs or alterations upon said leased premises which are to cost in
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excess of One Hundred Thousand Dollars ($100,000.00) and Lessors shall have the
right to record or otherwise give legal notice of non-responsibility on the
leased premises disclaiming any liability for such buildings, improvements,
repairs, additions or alterations.
VI
INSURANCE
During the term hereof, Lessee shall, at Lessee's own cost and expense:
(a) Keep the Proposed Building constructed upon the Demised 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 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 or his heirs 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 by stamping or otherwise of the payment of the premiums thereon shall
be delivered to Lessor. All said policies shall be taken in responsible
companies authorized to do business in the State of Nevada.
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
having limits of liability in the amount of at least Five Hundred Thousand
Dollars ($500,000.00) in respect to injuries to any one person, and the amount
of at least One Million Dollars ($1,000,000.00) in respect to any one accident
or disaster, and at least One Hundred Thousand Dollars ($100,000.00)
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for injury to property showing Lessor as beneficiaries.
(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
($5,000,000.00) single limit. The insurance shall be reexamined by the parties
from time to time but no less often than every three (3) 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
demised premises; however, Lessor shall at all times appear as an insured or
beneficiary thereunder, and a copy of all such policies showing payment by
Lessee of all premiums due shall be furnished Lessor at all times.
(c) Twenty (20) days prior to the expiration of any policy or policies of
such insurance, Lessee shall pay the premiums for renewal insurance and deliver
to Lessor, copies of the original renewal policies with evidence by stamping or
otherwise of the payment of the premiums thereof, except that certificates
instead of the original renewal policies with respect to insurance referred to
in this Article may be delivered to Lessor, and if such premium, or any of them,
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shall not be so paid and the policies or 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
from the date of payment, shall become due and payable by Lessee as additional
rent with the next or any subsequent installment of 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.
VII
LESSOR NONLIABILITY
Lessor shall not in any event whatsoever be liable for any injury or
damage to any person happening on or about the Proposed Building to be
constructed upon the Demised Premises, or for any injury or damage to the
Proposed Building or the Demised Premises, or to any property of Lessee, or to
any property of any other person, firm, association or corporation on or about
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 or corporation,
arising out of or based upon any accident, injury or damage, however occurring,
which shall or may happen on or about the Proposed Building or the Demised
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Premises, and from and against any matter or thing arising out of the
condition, maintenance, repair, alteration, use, occupation, or operation of
the Proposed Building.
VIII
DEFAULT
In the event of breach by Lessee of any of the covenants or other
provisions hereof on the part of Lessee to be kept and performed, Lessor,
besides any other rights or remedies Lessor may have, shall have the option and
right to re-enter the demised premises in accordance with law; and to remove
all persons and property, storing such property at any public warehouse at the
cost of and for the account of Lessee.
A. Non-Payment of Rent.
In the event of a breach resulting from non-payment of rent only, the
parties stipulate that Lessee's damages assertable pursuant to any remedy
Lessee may have at common law or under Chapter 40, N.R.S. arising out of such
re-entry shall be the sum of ONE HUNDRED DOLLARS ($100.00); provided such
re-entry does not occur until the sixth (6th) day following service of a
written notice requiring payment of the rent or, in the alternative, surrender
of the demised premises.
B. Breach of Covenant or Condition.
In the event of a breach of any term, condition or covenant hereof
except PARAGRAPHS V(3)(4), XXI or XXII, the parties stipulate that Lessee's
damages assertable pursuant to any remedy Lessee may have at common law or
under Chapter 40, NRS, arising out of such re-entry shall be the sum of ONE
HUNDRED DOLLARS ($100.00) provided such re-entry does not occur until the sixth
(6th) day following service of a written notice to quit.
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C. Breach of Paragraphs V(3)(4), XXI or XXII.
In the event of a breach of any provision of PARAGRAPHS V(3)(4), XXI or
XXII, the parties stipulate that Lessee's damages assertable pursuant to any
remedy Lessee may have at common law or under Chapter 40 of NRS, arising out of
such re-entry shall be the sum of ONE HUNDRED DOLLARS ($100.00) provided such
re-entry does not occur until the fourth (4th) day following service of a
written notice to quit.
Service as used in this PARAGRAPH VIII shall mean:
(a) Delivering a copy to a natural Lessee or by delivery of a copy to
the president, secretary, managing agent or resident agent of a
corporate Lessee;
(b) If the Lessee or its president, secretary, managing agent or
resident agent are absent from the demised premises or their
residence by delivering a copy to a person of suitable age and
discretion at the demised premises, or such person's residence, and
mailing a copy addressed to Lessee at Lessee's residence or the
demised premises.
Should Lessee become insolvent, make an assignment for the benefit of
creditors, or be adjudicated a bankrupt, this agreement and all rights
hereunder shall be deemed not an asset of such assignment, insolvent, or
bankrupt estate, and upon the occurrence of such an event, Lessor shall have
the option of terminating this lease.
The waiver of any breach of any term, covenant or condition by Lessor
shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition and any and all rights, remedies and options
given to Lessor in this Lease shall be cumulative and in
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addition to and without waiver of or in derogation of any right or remedy given
to it under any law now or hereafter in effect.
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.
XI
NO ABATEMENT
No diminution of the amount of space used by Lessee for whatever cause
including fire or destruction of premises 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 premises 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 VI(a) hereof.
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XII
TERMINATION, RESTORATION
On the last day of the term hereof or the earlier termination thereof,
Lessee shall peaceably and quietly leave, surrender and give up to Lessor the
Demised Premises together with the proposed Building or any new building and all
alterations, changes, additions and improvements which may have been made upon
the Demised Premises (except furniture, furnishings, equipment and trade-
fixtures put in at the expense of Lessee), in thorough repair and good order and
safe condition. Lessor shall have sole and absolute discretion, however, to
order the Proposed Building, together with any replacement building,
alterations, and improvements to be demolished at Lessee's sole expense and the
land restored to its approximate undeveloped state at the time of the execution
hereof. In such event Lessee shall not be required to quit the Demised Premises
until such demolition and restoration is completed; provided, however that all
such demolition and restoration shall be completed no later than ninety (90)
days following the last day of the term hereof or such earlier termination, at
which time the Demised Premises, so restored, shall be the property of Lessor.
On or before said termination date Lessee shall remove all of Lessee's
personal property from the Demised Premises and Proposed Building or new
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
Demised Premises and Proposed Building or any new building be not so
surrendered, or at Lessor's
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option demolished, 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 or at Lessor's option, to demolish improvements. In the event
Lessor shall elect to order the Proposed Building or any other improvement
demolished and the land restored as hereinabove provided, Lessee shall have
ninety (90) days after the giving of such notice, to accomplish said demolition
and to restore the land.
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 Demised Premises subject, however, to the terms of this Lease.
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.
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XV
GENERAL
(a) 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.
(b) 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.
(c) In the event suit is brought to enforce any provision hereof, the
prevailing party shall be entitled to reasonable attorneys' fees as set by the
Court.
(d) 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.
XVI
TAXES
(1) The Lessee, in addition to the fixed rent provided for herein, shall
pay all taxes and assessments upon the leased property, and upon the buildings
and improvements thereon, 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 Landlord for its inspection, within 30
days after the date any amount is payable by the Lessee, as provided in this
article, official
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receipts of the appropriate taxing authority or other proof satisfactory to the
Lessor evidencing payment.
(3) Lessee shall have the right, subject to any restrictions which any
leasehold mortgagee may hereafter make, and at his sole cost and expense (in his
own name or in the names of Lessor, or both, as he 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.
XVII
CONDEMNATION
If during the continuance of this Lease, any portion of the Demised
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
-19- EXHIBIT "B" PAGE 19
and retain such awards as shall be made to it. If there shall be a leasehold
mortgagee, however, the award for damages to Lessee 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.
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, 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 incorporal 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 work, 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 or 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 Demised Premises or any building or
-20- EXHIBIT "B" PAGE 20
structure thereon or the equipment thereof during said term, or arising during
said term from any condition of any street or sidewalk adjoining the premises
or 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, occurring during said term on, in, or
about the Leased Premises or on or under the sidewalks in front thereof, or 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.
XX
PREPAID RENT
Lessee shall pay to Lessor as payment to be applied to the Basic Rental
herein reserved the sum of SIXTY THOUSAND DOLLARS ($60,000.00) to be paid as
follows: Thirty Thousand Dollars ($30,000.00) at the execution hereof and
Thirty Thousand Dollars ($30,000.00) on the first anniversary of this lease.
Said prepaid rents are to be applied toward payment of the Basic Rental herein
provided for the Basic Rental Due for the final year of the term.
XXI
COMPLIANCE WITH LAW
Lessee shall perform, execute and fulfill during the term of this Lease,
all laws of the United States, all laws of the State of Nevada, and all
ordinances of the city corporation applicable to said Leased Premises and to the
-21- EXHIBIT "B" PAGE 21
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.
XXII
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 current financial statement of the proposed assignee to
Lessor. Lessee shall have the right at any time to assign his 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 no such assignment shall relieve Lessee of
its obligations and duties under the terms and conditions of this lease, and any
assignee of this
-22- EXHIBIT "B" PAGE 22
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 unless otherwise expressly agreed to in writing by Lessee and Lessor
and Assignee.
Lessor reserves at all times, however, the right to object in writing to
any assignment hereof within thirty (30) days of written notice by Lessee of his
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.
XXIII
OPTION TO PURCHASE
In the event that Lessor shall desire to sell or assign this Lease, or the
Land, Lessor will notify Lessee in writing of the purchase price being offered
and the name of the offeror, and Lessee shall have thirty (30) days after
receiving such written notice in which to make a written offer to purchase said
Land or the Lease as the case might be from the Lessor at such purchase price
and on the same terms and conditions.
XXIIV
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
buildings 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,
-23- EXHIBIT "B" PAGE 23
then and in that event, Lessee shall, at his option, have the right to terminate
this Lease, and 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, their 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 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.
XXIX
NOTICES
All notices hereunder shall be sent as follows:
-24- EXHIBIT "B" PAGE 24
LESSOR: BETTY BENNETT and RICHARD TINKLER
2463 Palmira
Las Vegas, Nevada 89121
JEWEL NOLEN and JULIE NOLEN
1221 S. Seventh Street
Las Vegas, Nevada 89107
DAVID KRAMER
912 West Victoria Park, Apt. 156
Montebello, California 90640
LESSEE: M. B. DALITZ
3111 Maryland Parkway
Las Vegas, Nevada 89109
-25- EXHIBIT "B" PAGE 25
EXHIBIT "A"
Legal Description
Lots 17, 18, 19 in Block 30 of Clark's Las Vegas Townsite, as
shown by Map thereof on file in Book No. 1, Page 37, in the
Office of the Clark County Recorder, subject to all
reservations, restrictions, easements, rights-of-way, liens and
encumbrances that may appear of record.
The aforedescribed property, leased herein as a single unit and referred to as
the "demised premises" or the "land" consists of three (3) separate lots, legal
title to which is vested as follows:
Lot 17, in Block 30 of Clark's Las Vegas Townsite is vested in BETTY
BENNETT, an unmarried woman, and RICHARD JAMES TINKLER, a married man,
mother and son as joint tenants;
Lot 18, in Block 30 of Clark's Las Vegas Townsite is vested in JEWEL
FRENCH NOLEN AND JULIE LaMOYNE NOLEN, mother and daughter, as joint
tenants;
Lot 19, in Block 30 of Clark's Las Vegas Townsite is vested in DAVID
KRAMER.
EXHIBIT "A" EXHIBIT "B" PAGE 26
IN WITNESS WHEREOF, the parties hereto have subscribed their names this
1st day of September, 1978; this indenture being executed in quadruplicate.
LESSOR: LESSEE:
/s/ JEWEL NOLEN /s/ M.B. DALITZ
- ----------------------------------- ---------------------------
/s/ JULIE L. NOLEN
- -----------------------------------
/s/ BETTY BENNETT
- -----------------------------------
/s/ DAVID KRAMER
- -----------------------------------
/s/ RICHARD JAMES TINKLER
- -----------------------------------
-27- EXHIBIT "B" PAGE 27