Exhibit 10.4
DRIVING RANGE LEASE
between
BORA BORA, LLC,
Landlord
and
▇▇▇▇ LAS VEGAS, LLC,
Tenant
Dated May 3, 2004
TABLE OF CONTENTS
PAGE
SECTION 1 DEMISED PREMISES...................................................1
SECTION 2 TERM...............................................................2
SECTION 3 RENT...............................................................2
SECTION 4 CONSTRUCTION OF THE DRIVING RANGE..................................3
SECTION 5 FINANCING..........................................................3
SECTION 6 USE OF PREMISES; EXCLUSIVITY.......................................4
SECTION 7 ALTERATIONS AND IMPROVEMENTS.......................................5
SECTION 8 UTILITIES..........................................................5
SECTION 9 TAXES..............................................................5
SECTION 10 INTENTIONALLY OMITTED.............................................7
SECTION 11 MAINTENANCE AND REPAIRS...........................................7
SECTION 12 LIENS.............................................................7
SECTION 13 INSURANCE.........................................................8
SECTION 14 DESTRUCTION OF PREMISES; CONDEMNATION.............................9
SECTION 15 INDEMNIFICATION..................................................11
SECTION 16 SUBORDINATION....................................................11
SECTION 17 ASSIGNMENT AND SUBLETTING........................................12
SECTION 18 LEASEHOLD FINANCING..............................................13
SECTION 19 INTENTIONALLY OMITTED............................................20
SECTION 20 RIGHTS OF ACCESS.................................................20
SECTION 21 ESTOPPEL CERTIFICATE.............................................20
SECTION 22 EXPENDITURES.....................................................20
SECTION 23 DEFAULT..........................................................21
SECTION 24 MISCELLANEOUS....................................................22
DRIVING RANGE LEASE
THIS DRIVING RANGE LEASE (this "Lease") is entered into as of May
3, 2004 (the "Commencement Date") by and between Bora Bora, LLC, a Nevada
limited liability company ("Landlord"), and Wynn Las Vegas, LLC, a Nevada
limited liability company ("Tenant").
WITNESSETH:
WHEREAS, Tenant owns good and marketable title in and to the parcel
of real property described on Exhibit A annexed hereto ("Tenant's Property")
upon which Tenant intends to construct and develop a first class luxury hotel
and destination casino resort (the "Hotel"); and
WHEREAS, Landlord owns good and marketable title in and to the parcel
of real property adjacent to Tenant's Property and described on Exhibit B
annexed hereto (the "Landlord's Property"); and
WHEREAS, Tenant has entered into a lease to lease real property (the
"Golf Course Property") adjacent to the Hotel and the Landlord's Property upon
which Tenant intends to construct a golf course, clubhouse and related
improvements (the "Golf Facilities"); and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to
lease from Landlord a portion of Landlord's Property, as shown on Exhibit C
annexed hereto (the "Premises") for the purpose of constructing and operating
a driving range on the Premises ("Driving Range"), to be operated as an
amenity to the Hotel and the Golf Course which Driving Range will include all
structures and facilities located or to be located on the Premises.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable
consideration, it is hereby mutually agreed by and between Landlord and Tenant
as follows:
SECTION 1
DEMISED PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises, to have and to hold the Premises, together with all and
singular improvements, appurtenances, rights, privileges, and easements
thereunto appertaining during the Lease Term and subject to the terms and
conditions herein contained.
1.2 Tenant shall construct and maintain the Driving Range at a
standard consistent with a typical first class, driving range. In addition,
Landlord and Tenant agree to cooperate with respect to fulfilling any and all
conditions of ▇▇▇▇▇ County, the State of Nevada, and any other governmental or
regulatory entity having jurisdiction over the Premises and the construction
and operation of the Driving Range.
SECTION 2
TERM
2.1 The term of the Lease (the "Lease Term") and payment of Rent (as
defined in Section 3.1 hereof) shall commence on the Commencement Date, and
shall continue for a period of thirty (30) years thereafter (the "Initial
Lease Term") unless terminated earlier as elsewhere herein provided. Following
the release of the Golf Course Property and Golf Facilities from the liens of
the deeds of trust (the "Lien Release Date") described on Schedule II
(collectively, the "Golf Course Deeds of Trust"), Tenant may terminate this
Lease on thirty (30) days' written notice to Landlord so long as Tenant is
permitted to do so under the Credit Agreement (as defined in that certain
Amended and Restated Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing, made by Tenant, as Trustor, to Nevada Title
Company, a Nevada corporation, as Trustee, for the benefit of Deutsche Bank
Trust Company Americas, in its capacity as Administrative Agent for the
benefit of the Banks, as Beneficiary, recorded on October 29, 2002 in Book
20021029 as Document No. 03540 of the Official Records of ▇▇▇▇▇ County,
Nevada) and the Mortgage Notes Indenture (as defined in that certain Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
made by Tenant, as Trustor, to Nevada Title Company, a Nevada corporation, as
Trustee, for the benefit of ▇▇▇▇▇ Fargo Bank, National Association, in its
capacity as the Mortgage Notes Indenture Trustee, as Beneficiary, recorded on
October 29, 2002 in Book 20021029 as Document No. 03548 of the Official
Records of ▇▇▇▇▇ County, Nevada). The Credit Agreement referenced in the
preceding sentence shall hereinafter be referred to as the "WLV Credit
Agreement."
2.2 In the event Tenant is not then in default of its obligations
hereunder beyond any applicable cure period and this Lease has not previously
been terminated, after the expiration of the Initial Lease Term, the Lease
Term shall continue on a month-to-month basis, upon the same terms and
conditions as are set forth in this Lease. At any time during any such
extension of the Initial Lease Term, either party may terminate the Lease by
delivering written notice no later than ten (10) days prior to the expiration
of any thirty (30) day extension period. In the event that such notice is not
given within such time period, the Lease shall continue in effect.
2.3 Upon the expiration or sooner termination of this Lease, Tenant
shall, at its sole cost and expense, within fifteen (15) days after receipt of
written notice, thereupon surrender the Premises to Landlord in the same
condition as on the date of completion of the Tenant's Work. All personal
property of Tenant relating to the Driving Range and to the operation of the
Premises as a Driving Range shall become the property of Landlord on
termination of this Lease.
SECTION 3
RENT
3.1 During the Lease Term, Tenant shall pay as monthly rent for the
Premises the sum of One Dollar ($1.00) per month (the "Rent"). The Rent shall
be due and payable in advance on the first (1st) day of each month.
3.2 All Rents and other monies required to be paid by Tenant
hereunder shall be paid to Landlord without deduction or offset, prior to
notice or demand, in lawful money of the United States of America, at the
address of Landlord and set forth in Section 24.5 or at such other place as
Landlord may from time to time designate in writing.
3.3 If Tenant fails to pay, when due and payable, any Rent or any
other amounts or charges to be paid by Tenant hereunder within ten (10) days
after written notice from Landlord that the amount is past due, such unpaid
amounts shall bear interest from the due date thereof to the date of payment
at a rate equal to the prime rate of interest last ascertained by the
Commissioner of Financial Institutions of the State of Nevada pursuant to
Nevada Revised Statutes 99.040, plus five (5) percentage points (the "Default
Rate").
SECTION 4
CONSTRUCTION OF THE DRIVING RANGE
4.1 Tenant shall be responsible, at its sole cost, for constructing
and maintaining the Driving Range ("Tenant's Work") in accordance with the
conceptual plans and specifications which have been reviewed and approved by
Landlord. If requested by Landlord, Tenant shall use only union labor to
perform Tenant's Work. In addition, Tenant agrees that material modifications
to such Plans shall be subject to the prior written approval of Landlord,
which approval shall not be unreasonably withheld or delayed; provided,
however, that Landlord shall be deemed to have approved any and all such Plan
modifications if such Plan modifications are approved by the lender or lenders
of Tenant financing the construction of the Tenant's Work.
4.2 Tenant shall be solely responsible for (i) securing all necessary
building, zoning and other governmental permits, approvals and waivers, as
necessary, to construct the Driving Range and (ii) satisfying any offsite
improvement requirements.
SECTION 5
FINANCING
Landlord may obtain loans from time to time from third parties to
finance acquisition and development of Landlord's and its Affiliates' real
property, including the Premises. For purposes of this Lease, an "Affiliate"
of a party shall mean any person or entity (a) that is owned or controlled by
the party, (b) that owns or controls the party, (c) that is owned or
controlled by a person or entity that owns or controls the party, (d) that
owns or controls an Affiliate of the party, or (e) that is owned or controlled
by an Affiliate of the party. As used in this definition, the words "owns" or
"owned" refer to the ownership of twenty percent (20%) or more of the equity
interest in the person or entity so owned, regardless of the manner of
ownership. Also, as used in this definition, ownership or control may be
direct or indirect. By its execution of this Lease, Tenant (i) acknowledges
and consents to Landlord's collateral assignment of its rights hereunder to
its and its Affiliates' lenders (collectively "Lenders"), including the
beneficiary under the Deed of Trust (as defined and described on Schedule I
attached hereto, the "Deed of Trust"); (ii) acknowledges and affirms Tenant's
agreement to attorn performance obligations to the benefit of Lenders in the
same manner as it would with respect to Landlord if any such Lender exercises
its rights under any collateral assignment from Landlord; and (iii) agrees to
execute such separate consents and acknowledgements to and of Landlord's
collateral assignment of this Lease to such third party Lenders.
SECTION 6
USE OF PREMISES; EXCLUSIVITY
6.1 The Premises are leased to Tenant solely for the purpose of
developing, constructing, operating and maintaining the Driving Range and
related and ancillary uses. Tenant shall not use or suffer to be used the
Premises, or any portion thereof, for any other purpose or purposes
whatsoever, without Landlord's prior written consent, which consent shall not
be unreasonably withheld.
6.2 Tenant shall, at all times during the Lease Term, comply with all
governmental rules, regulations, ordinances, statutes and laws, now or
hereafter in effect pertaining to the Driving Range, the Premises or Tenant's
use thereof.
6.3 Tenant shall not use the Premises for the generation, storage,
manufacture, production, releasing, discharge, or disposal or any Hazardous
Substance (defined below) or allow or suffer any other entity or person to do
so. Provided, however, that Tenant shall be permitted to utilize customary
fertilizers, pesticides, and other similar landscaping chemicals to the extent
such use is consistent with any governmental regulations governing such use.
Except as otherwise set forth herein, "Hazardous Substance" shall mean any
flammable or related material and any other substance or material defined or
designated as a hazardous or toxic substance, material or waste by a
governmental law, order, regulation or ordinance presently in effect or as
amended or promulgated in the future and shall include, without limitation:
(a) those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances" or "solid waste" in
CERCLA, RCRA, and the Hazardous Materials Transportation Act, 40 U.S.C. ▇▇.▇▇.
1801 et seq., and in the regulations promulgated pursuant to said laws; (b)
those substances listed in the United States Department of Transportation
Table (49 CFR 172.101 and amendments thereto) or by the Environmental
Protection Agency (or any successor agency) as hazardous substances (40 CFR
Part 302 and amendments thereto); (c) such other substances, materials and
wastes which are or become regulated under applicable local, state or federal
law, or the United States government, or which are classified as hazardous or
toxic under federal, state or local laws or regulations; and (d) any material,
waste or substance which is (i) petroleum, (ii) asbestos, (iii)
polychlorinated biphenyls or (iv) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33 U.S.C. ▇▇.▇▇. 1251 et seq.
(33 U.S.C. 1321) or listed pursuant to Section 307 of the Clean Water Act (33
U.S.C. 1317).
6.3.1 Tenant shall protect, indemnify and hold harmless
Landlord, its partners, members, managers, employees, agents, successors and
assigns, the Premises and the Driving Range in general from and against any
and all claims, losses, damages, costs, expenses, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind
(including, without limitation, attorneys' fees and costs at trial and on
appeal) directly or indirectly arising out of or attributable to, in whole or
in part, the breach of any of the covenants, representations and warranties of
this Section 6.3, or the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal, or presence of a Hazardous
Substance on, under, from or about the Premises. The foregoing indemnity shall
further apply to any residual contamination on, under, from or about the
Premises, or the property in general, or affecting any natural resources
arising in connection with the use, generation, manufacture, production,
handling, storage, transport, discharge or disposal of any such Hazardous
Substance, and irrespective of whether any of such activities were or will be
undertaken in accordance with environmental laws or other applicable laws,
regulations, codes and ordinances.
6.3.2 Landlord reserves the right to request appropriate
governmental officials to inspect the Premises, from time to time, in order to
determine Tenant's compliance herewith.
SECTION 7
ALTERATIONS AND IMPROVEMENTS
7.1 Following the completion of the Tenant's Work, Tenant shall not
make any material alterations, improvements or changes (specifically excluding
repairs and maintenance work) ("Improvements") in or to the Premises without
the prior written approval of Landlord, which approval shall not be
unreasonably withheld or delayed. Any Improvements shall be at the sole cost
and expense of Tenant. Landlord may require Tenant, at Tenant's sole cost and
expense, to furnish a bond, or other security satisfactory to Landlord, to
assure diligent and faithful performance of any work to be performed by
Tenant. Any Improvements shall be made promptly, in good and workmanlike
manner by duly licensed union contractors and in compliance with all insurance
requirements and with all applicable permits, authorizations, building
regulations, zoning laws and all other governmental rules, regulations,
ordinances, statutes and laws, now or hereafter in effect, pertaining to the
Premises or Tenant's use thereof.
7.2 Prior to making any Improvements in or to the Premises, Tenant
shall notify Landlord ten (10) days in advance in order that Landlord may post
and maintain on the Premises and file any notices of nonresponsibility
provided for under applicable law. Tenant agrees that Landlord shall have the
right to enter upon the Premises to post notices of nonresponsibility.
SECTION 8
UTILITIES
Tenant shall be responsible for the cost and expense of installing
all utilities on the Premises. Tenant shall be responsible for the payment of,
and shall promptly pay when due, all utility completion fees, connection fees
and all utility services (including without limitation, gas, water,
electricity, telephone and sanitary sewer) used, rendered or supplied to or in
connection with the Premises or the construction, operation and maintenance of
the Driving Range during the Lease Term.
SECTION 9
TAXES
9.1 Tenant will, at Tenant's own cost and expense, bear, pay, and
discharge prior to delinquency, all real estate taxes, assessments, sewer
rents, water rents and charges, duties, impositions, license and permit fees,
charges for public utilities of any kind, payments and other charges of every
kind and nature whatsoever, ordinary or extraordinary, foreseen or unforeseen,
general or special (all of which are hereinafter collectively referred to as
"Impositions"), which shall, pursuant to present or future law or otherwise,
during the Lease Term, have been or be levied, charged, assessed, or imposed
upon, or become due and payable out of or for, or become or have become a lien
on the Premises, the Driving Range and any Improvements; it being the
intention of the parties hereto that the Rents reserved herein shall be
received and enjoyed by Landlord as a net sum free from all such Impositions.
Provided, however, that for such part of the Lease Term, if any, as the
Premises is not separately assessed but is included as part of Landlord's
Property for computation of real property taxes and assessments, or is
separately assessed but the taxes attributable thereto are billed to Landlord,
then Tenant's share of taxes shall be an amount equal to twenty two and
one-half percent (22.5%) of the total assessments for Landlord's Property;
provided further that following the release of the lien of the Deed of Trust,
Landlord and Tenant shall either create a tax parcel for the Driving Range
separate from the remainder of Landlord's Property, or equitably adjust the
percentage of property taxes payable by Tenant for the Premises following
adjustments in assessments for Landlord's Property attributable to
construction or demolition activity on Landlord's Property other than the
Driving Range. All taxes payable by Tenant hereunder shall be paid to
Landlord, as the case may be, on the later of (a) ten (10) days before such
tax becomes delinquent or (b) ten (10) days after Landlord, or the taxing
authority, notifies Tenant that a payment is due. Subject to any reimbursement
due from Tenant as provided herein, Landlord shall be responsible for timely
payment of all assessments on Landlord's Property. In the event Landlord fails
to timely pay any such assessment, Tenant may, but is not obligated to pay
such assessment directly to the taxing authority and pursue reimbursement of
Landlord's share of such assessment from Landlord. Upon the termination of
this Lease, Landlord shall promptly reimburse Tenant for any Impositions paid
by Tenant attributable to the period of time following such termination. All
Impositions shall be prorated on the basis of a 365-day year.
9.2 Tenant shall be liable for and shall pay before delinquency (and,
upon five (5) days of written demand by Landlord, Tenant shall furnish
Landlord with satisfactory evidence of the payment thereof) all Impositions of
whatsoever kind or nature, and penalties and interest thereon, if any, levied
against any personal property of Tenant of whatsoever kind and to whomsoever
belonging situated or installed in or upon the Premises, whether or not
affixed to the realty.
9.3 Tenant shall pay when due all taxes, assessments or fees for
which Tenant is liable and which arise directly or indirectly from Tenant's
operations at the Premises including without limitation all sales and use
taxes. Within five (5) days of written demand from Landlord, Tenant shall
furnish Landlord evidence satisfactory to Landlord of the timely payment of
any such tax, assessment or fee.
9.4 Whenever Landlord shall receive any statement or ▇▇▇▇ for any
tax, payable in whole or in part by Tenant as additional Rent, or shall
otherwise be required to make any payment on account thereof, except as
otherwise provided herein, Tenant shall pay the amount due hereunder within
ten (10) days after demand therefor accompanied by delivery to Tenant of a
copy of such tax statement, if any.
SECTION 10
[INTENTIONALLY OMITTED]
SECTION 11
MAINTENANCE AND REPAIRS
11.1 Landlord shall not be obligated to perform any service or to
repair or maintain any structure or facility on the Premises except as
provided in this Section 11 and Section 14 of this Lease, unless caused by the
negligence of Landlord, its agents, customers or contractors. Landlord shall
not be obligated to provide any service or maintenance or to make any repairs
pursuant to this Lease when such service, maintenance or repair is made
necessary because of the negligence or misuse of Tenant, Tenant's agents,
employees, servants, contractors, subtenants or licensees. Landlord shall have
no responsibility or liability for failure to supply any services or
maintenance or to make any repairs on the Premises. Landlord shall not be
liable for any loss or damage to persons or property sustained by Tenant or
other persons, which may be caused by the Driving Range or the Premises, or
any appurtenances thereto, being out of repair or by bursting or leakage of
any water, gas, sewer or steam pipe, or by theft, or by any act or neglect of
any occupant of the Premises, or of any other person.
11.2 Except as provided for elsewhere herein, Tenant shall keep and
maintain in good order, condition and repair (including any such replacement
and restoration as is required for that purpose) the Premises, the Driving
Range and every part thereof and any and all appurtenances thereto wherever
located, including, without limitation, all repairs and replacements,
structural and nonstructural, foreseen and unforeseen, which are necessary to
maintain and preserve the Driving Range and the Premises in good condition.
All repairs shall be made in accordance with all laws, promptly, efficiently,
and in good workmanlike manner. Tenant shall also keep and maintain in good
order, condition and repair (including any such replacement and restoration as
is required for that purpose) any Improvements, special equipment,
furnishings, fixtures or facilities installed by it on the Premises.
SECTION 12
LIENS
12.1 Tenant, at all times, whether by bond or otherwise, shall keep
(and shall cause any contractor engaged by Tenant to keep) Landlord, the
Driving Range, the Premises, the leasehold estate created by this Lease, and
any trade fixtures, equipment or personal property within the Premises, free
and clear from any claim, lien or encumbrance (other than personal property,
consensual security interests for lines of credit or inventory financing in
the ordinary course of Tenant's business), tax lien or levy, mechanic's lien,
attachment, garnishment or encumbrance arising directly or indirectly from any
obligation, action or inaction of Tenant whatsoever, except to the extent
permitted under Sections 17 and 18 below and except for "Permitted Liens" as
defined in the Credit Agreement (as that term is defined in the Deed of
Trust). The Credit Agreement, the Deed of Trust and any other documents or
instruments executed in connection therewith shall be collectively referred to
in this Lease as the "Credit Agreement Documents."
12.2 Tenant shall, within ten (10) days of the filing of any lien
that is not permitted under Section 12.1 above, either pay or satisfy the same
in full and procure the discharge thereof or commence an action to discharge
the same, fully bond such lien, and diligently prosecute such action, or shall
cause Tenant's contractor to do the same.
SECTION 13
INSURANCE
13.1 Landlord and Tenant are covered under the same policies of
comprehensive public liability insurance and all-risk, commercial property
insurance. The parties each agree to pay its respective share of such
insurance costs.
13.2 If at any time during the Lease Term Tenant ceases to be covered
by common insurance with Landlord, Tenant will, at its sole cost and expense,
maintain in full force and effect:
(a) a policy of comprehensive or commercial general
liability insurance issued by an insurance carrier approved by Landlord,
insuring against loss, damage or liability for injury or death to persons and
loss or damage to property occurring from any cause whatsoever in connection
with the Premises or Tenant's use thereof. Landlord shall be named as an
additional insured under each such policy of insurance; with a combined single
limit for bodily injury and property damage of not less than two million
($2,000,000) per occurrence and five million ($5,000,000) in the aggregate;
(b) a standard form of all-risk, commercial property
insurance with extended coverage insurance covering leasehold improvements,
furniture, fixtures and equipment, and personal property located in or on the
Premises whether owned by Landlord or Tenant, and the personal property of
others in Tenant's possession in, upon or about the Premises. Such insurance
shall be in an amount equal to the current replacement value of the property
required to be insured. Tenant and Landlord, as their interests may appear,
shall be the named insureds under each such policy of insurance;
(c) During any period of any construction on the Premises,
Tenant shall maintain (i) course of construction and builder's risk insurance
on an "all risks" basis, including materials in storage and while in transit,
and (ii) worker's compensation and employer's liability insurance for any
person working on such construction who is employed by Tenant or any general
contractor and/or any construction contractor.
13.3 A certificate issued by the insurance carrier for each policy of
insurance required to be maintained by Tenant under Section 13.2 above, if
any, or a copy of each such policy, shall be delivered to Landlord on or
before the commencement of Tenant's Work and thereafter, as to policy
renewals, within thirty (30) days prior to the expiration of the terms of each
such policy. Each of said certificates of insurance and each such policy of
insurance shall be from an insurer and in a form and substance satisfactory to
Landlord, shall expressly evidence insurance coverage as required by this
Lease and shall contain an endorsement or provision requiring not less than
thirty (30) days written notice to Landlord and all other named insureds prior
to the cancellation, diminution in the perils insureds against, or reduction
of the amount of coverage of, the particular policy in question. In addition
to the foregoing certificates, Tenant shall at all times during the Lease Term
maintain (either through common insurance with Landlord or otherwise), at
Tenant's sole cost and expense, worker's compensation coverage evidencing
coverage at Nevada statutory limits.
13.4 Tenant shall not use or occupy, or permit the Premises to be
used or occupied, in a manner that will make void any insurance then in force.
13.5 Landlord and Tenant hereby waive any and all rights of recovery
from the other party and its officers, agents and employees for any loss or
damage, including consequential loss or damage, caused by any peril or perils
(including negligent acts) that are caused by or result from risks insured
against under any form of insurance policy.
13.6 Each policy of insurance provided for in this Section 13 shall
contain an express waiver of any and all rights of subrogation thereunder
whatsoever against the other party, its officers, directors, agents and
employees. All such policies shall be written as primary policies and not
contributing with or in excess of the coverage, if any, which Landlord may
carry. Notwithstanding any other provision contained in this Section 13 or
elsewhere in this Lease, the amounts of all insurance required hereunder to be
paid by Tenant shall be not less than an amount sufficient to prevent Landlord
from becoming a co-insurer. The limits of the public liability insurance
required to be maintained by Tenant under this Lease shall in no way limit or
diminish Tenant's liability under Section 15 hereof and such limits shall be
subject to increase at any time and from time to time during the Lease Term if
Landlord, in the exercise of reasonable discretion, deems such an increase
necessary for its adequate protection; provided, however, Landlord may not
exercise its right under this sentence more frequently than one time every two
years during the Lease Term.
13.7 All of the provisions of this Section 13 are subject to, and
shall be modified as reasonably necessary to be consistent with, the
requirements of the Credit Agreement.
SECTION 14
DESTRUCTION OF PREMISES; CONDEMNATION
14.1 During the period prior to the earlier to occur of the
expiration of the Initial Lease Term or the Lien Release Date, should the
Premises or any portion thereof be destroyed by any cause whatsoever
("Damaged") and provided that restoration is permitted under the Credit
Agreement, Tenant shall restore the Premises so long as it is permitted under
the WLV Credit Agreement and the Mortgage Notes Indenture. After the earlier
to occur of the expiration of the Initial Lease Term or the Lien Release Date,
should the Premises be Damaged, Tenant may elect to either terminate this
Lease or restore the Premises by delivery of written notice to Landlord within
thirty (30) days after the casualty event giving rise to the Damage. If Tenant
fails to give timely notice of Tenant's election, Tenant shall be deemed to
have elected to terminate and this Lease shall terminate at the end of the
calendar month following the calendar month in which such casualty event shall
have occurred. If Tenant is required or elects to restore the Premises, the
following provisions shall apply: After any such casualty and during the
reconstruction period, Rent shall continue to accrue and be payable as if such
event of destruction had not occurred. Tenant shall reconstruct the Damaged
Improvements with all reasonable diligence (allowing for adjustment and
collection of insurance proceeds, licensing, permitting, and approvals) and as
often as any structures subsequently constructed on the Premises or any part
thereof shall be Damaged. No Damage to any building or Improvements on the
Premises by fire, windstorm, or any other casualty shall entitle Tenant to
violate any of the provisions of this Lease. Landlord hereby agrees to assign
to Tenant any insurance proceeds otherwise payable to Landlord, whether
payable solely to Landlord or jointly to Landlord and Tenant, subject to
reasonable and third party customary construction control procedures, so long
as Tenant uses such proceeds solely to repair or rebuild the Damaged buildings
or Improvements.
14.2 INTENTIONALLY OMITTED
14.3 Notwithstanding the foregoing provisions, in the event the
Premises or any portion thereof shall be Damaged by fire or other casualty due
to the fault, negligence or willful misconduct of Tenant, its agents,
employees, servants, contractors, subtenants, licensees, customers or business
invitees, then this Lease shall not terminate, the Damage shall be repaired by
Tenant, and there shall be no apportionment or abatement of any Rent.
14.4 All insurance proceeds payable under any fire and extended
coverage risk insurance covering the Premises and maintained by Landlord shall
be payable to Landlord in the event of Damage, and Tenant shall have no
interest therein, except to the extent of such insurance separately carried by
Tenant. Tenant shall in no case be entitled to compensation for damages on
account of any annoyance or inconvenience in making repairs under any
provision of this Lease. Except to the extent provided for in this Section 14,
neither the Rent payable by Tenant nor any of Tenant's other obligations under
any provision of this Lease shall be affected by any Damage.
14.5 Should the whole of the Premises be condemned or taken by a
competent authority for any public or quasi-public purpose, then this Lease
shall terminate upon such taking. If such portion of the Premises is condemned
or taken such that the remaining portion thereof will not be reasonably
adequate for the operation of Tenant's business after Landlord completes such
repairs or alterations as Landlord elects to make, either Landlord or Tenant
shall have the option to terminate this Lease by notifying the other party
hereto of such election in writing within twenty (20) days after such taking.
If by such condemnation and taking a portion of the Premises is taken and the
remaining part thereof is suitable for the purposes for which Tenant has
leased the Premises, this Lease shall continue in full force and effect, but
the Rent and all other charges hereunder shall be reduced in an amount equal
to that proportion of such charges which the square footage of the portion
taken bears to the total square feet of the Premises, and Rent and other
charges shall be suspended during any period of time that Tenant is closed for
business. In the event a partial taking does not terminate this Lease,
Landlord, at Landlord's expense, shall repair the damage to the Premises with
reasonable dispatch and restore it as nearly as reasonably possible to its
condition immediately before the taking. If any part of the Driving Range
shall be taken or appropriated so as to materially and adversely affect the
ability of Tenant's subtenants, customers and/or invitees to reach the
Premises, Tenant shall have the right, at its option to terminate this Lease
by notifying the other party within twenty (20) days of such taking.
14.6 For the purposes hereof, a deed in lieu of condemnation shall
be deemed a taking.
SECTION 15
INDEMNIFICATION
Each party ("Indemnitor") hereby covenants and agrees to indemnify,
defend, save and hold the other party ("Indemnitee"), the Premises and the
leasehold estate created by this Lease free, clear and harmless from any and
all liability, loss, costs, expenses (including attorneys' fees), judgments,
claims, liens and demands of any kind whatsoever in connection with, arising
out of, or by reason of any act, omission, or negligence of Indemnitor, its
agents, employees, servants, contractors, subtenants or licensees while in,
upon, about, or in any way connected with, the Premises or the Driving Range
or arising from any accident, injury or damage, howsoever and by whomsoever
caused, to any person or property whatsoever, occurring in, upon, about or in
any way connected with the Premises or any portion thereof other than as a
result of the intentional or negligent acts of Indemnitee.
SECTION 16
SUBORDINATION
16.1 The lien on the Premises created and securing the obligations
under the Credit Agreement Documents and all supplements, amendments,
modifications, renewals, replacements, and extensions of and to them shall
unconditionally be and remain at all times a lien on the Premises prior and
superior to this Lease, to all leasehold estates of whatever nature created
herein and to all rights and privileges of Tenant hereunder. This Lease and
the leasehold estates created hereunder, together with all other rights and
privileges of Tenant hereunder are hereby unconditionally made subordinate to
the lien of the Credit Agreement Documents in favor of Administrative Agent
(as defined in the Credit Agreement). Tenant consents to Landlord and
Administrative Agent entering into the Credit Agreement Documents. Tenant
further declares, agrees, and acknowledges that Administrative Agent in making
disbursements under the Credit Agreement Documents, has no obligation or duty
to, nor has Administrative Agent represented that it will, see to the
application of such proceeds by the person or persons to whom they are
disbursed by Administrative Agent, and any application or use of such proceeds
for purposes other than those provided for in the Credit Agreement Documents
shall not defeat the subordination made in this Lease, in whole or in part.
Tenant further represents and acknowledges that Administrative Agent may
exercise any and all of its remedies under the Credit Agreement Documents
without regard to the consequences of such actions upon this Lease and
Tenant's rights hereunder and further acknowledges that upon the recording of
a trustee's deed following exercise of the power of sale by Administrative
Agent under the Deed of Trust or a receipt of a deed by the Administrative
Agent in lieu of a foreclosure of this Lease, Tenant's rights hereunder,
including Tenant's right to occupy the Premises, shall immediately terminate.
16.2 Nothing in this Lease shall be deemed or construed to be an
agreement by Administrative Agent to perform any covenant of Landlord as
landlord under this Lease at any time. Administrative Agent shall have no
liability to Tenant whatsoever in connection with the actions or omissions of
Administrative Agent under the Credit Agreement Documents regardless of the
effects of such actions and omissions upon this Lease and the rights granted
to Tenant hereunder.
16.3 Except as permitted in the Credit Agreement Documents or as
previously consented to in writing by Administrative Agent, Tenant shall not
enter into any amendment, modification, or other agreement relating to this
Lease or assign or sublet any portion of this Lease or Tenant's rights
hereunder.
16.4 If Administrative Agent forecloses upon the Deed of Trust or if
it takes possession under the Deed of Trust, Administrative Agent shall not be
(a) liable for any damages or other relief attributable to any act or omission
of any prior landlord under this Lease, including Landlord; or (b) bound by
any modification or amendment of or to this Lease unless the amendment or
modification shall have been approved in writing by Administrative Agent.
16.5 Tenant agrees upon request of Landlord to further subordinate
this Lease and its rights hereunder to the lien of any additional mortgage,
deed of trust or other encumbrance, together with any renewals, extensions or
replacements thereof now or hereafter placed, charged or enforced against the
Premises, or any portion thereof, and to execute and deliver at any time, and
from time to time, upon demand by Landlord, such documents as may be
reasonably required to effectuate such subordination within ten (10) days
after receiving such documents.
SECTION 17
ASSIGNMENT AND SUBLETTING
17.1 Except as otherwise set forth herein, Tenant shall not assign,
mortgage, pledge, hypothecate or encumber this Lease nor the leasehold estate
hereby created or any interest herein, or sublet the Premises or any portion
thereof, or license the use of all or any portion of the Premises without the
prior written consent of Landlord, which consent may be withheld in Landlord's
sole discretion. Provided, however, that Tenant shall have the right, upon
giving notice to Landlord, to assign this Lease to any successor-in-interest
to the Golf Facilities and, upon such assignment Tenant shall be relieved from
any further obligation under this Lease except as otherwise expressly provided
herein. The restriction or limitation on use of the Premises shall continue to
apply to any subtenant or assignee hereunder. Any consent by Landlord to any
act requiring consent pursuant to this Section 17.1 shall not constitute a
waiver of the necessity for such consent to any subsequent act. Tenant shall
pay all reasonable costs, expenses and reasonable attorneys' fees that may be
incurred or paid by Landlord in processing, documenting or administering any
request of Tenant for Landlord's consent required pursuant to this Section
17.1.
17.2 Landlord may reasonably require that each proposed assignee or
sublessee agree, in a written agreement satisfactory to Landlord, to assume
and abide by all the terms and provisions of this Lease, including those which
govern the permitted uses of the Premises.
17.3 In the absence of an express agreement in writing to the
contrary executed by Landlord, no assignment, mortgage, pledge, hypothecation,
encumbrance, subletting or license hereof or hereunder shall act as a release
of Tenant from any of the provisions, covenants and conditions of this Lease
on the part of Tenant to be kept and performed.
17.4 Notwithstanding anything to the contrary contained herein,
Tenant may encumber Tenant's leasehold estate under this Lease to secure
financing of any indebtedness or any obligations of Tenant or any Affiliate of
Tenant, in such amount and on such terms as Tenant may determine appropriate
in its discretion, and Landlord hereby agrees to effect such amendments and
modifications of this Lease as may be required by the obligee of such
indebtedness or obligations to make this Lease "financeable" and to execute
and deliver to such obligee such documents and instruments as such obligee may
require in connection therewith; provided, however, that Landlord shall have
no obligation to agree to any amendments or modifications or to execute any
documents or instruments that require Landlord to subordinate its fee interest
to the lien of any such encumbrance or extend the term of this Lease, or
materially decrease Tenant's obligations or materially increase Landlord's
obligations under this Lease.
SECTION 18
LEASEHOLD FINANCING
18.1 Leasehold Mortgage Permitted. Nothing in this Lease shall be
construed as restricting in any manner the right of Tenant, from time to time,
or at any time, to create one or more liens on, or encumber, by mortgage, deed
of trust or trust deed in the nature of a mortgage (each, a "Leasehold
Mortgage") the leasehold interest of Tenant in the Premises, and subject to
the restrictions and limitations contained in any such instrument as to
further conveyances, transfers and assignments, Tenant will have the right at
any time, and from time to time, to convey, transfer and assign its interest
under this Lease to a mortgagee, trustee or beneficiary, of its designee (each
"Leasehold Mortgagee"), under a Leasehold Mortgage given to secure any note or
other obligation of Tenant or an Affiliate thereof.
18.2 Certain Benefits to Leasehold Mortgage. If Tenant shall execute
any Leasehold Mortgage, then, in such event and so long as such Leasehold
Mortgage shall constitute a lien or encumbrance against the leasehold estate
of Tenant hereunder, the following provisions shall apply:
18.2.1 Amendment of Lease. No agreement by Landlord and
Tenant for the assignment, cancellation, surrender, acceptance of surrender or
termination, modification or amendment of this Lease shall be effective as to
any Leasehold Mortgagee without the written consent of such Leasehold
Mortgagee. If the Leasehold Mortgagee whose lien has first priority consents
to an amendment, any Leasehold Mortgagee of a junior lien on the Premises will
not unreasonably withhold its consent to such amendment.
18.2.2 Exercise of Section 365(h)(i) Rights. Landlord
agrees, for the benefit of such Leasehold Mortgagee, that the right of
election arising under Section 365(h)(i) of the Bankruptcy Code shall be
exercised by the most senior Leasehold Mortgagee at such time and not by
Tenant. Any attempted exercise by Tenant of such right of election in
violation hereof shall be void.
18.2.3 Loss Payee. The name of each such Leasehold Mortgagee
shall be added to the "Loss Payable Endorsement" of any and all insurance
policies required to be carried by Tenant under this Lease.
18.2.4 Proceeds of Casualty and Condemnation.
Notwithstanding anything in this Lease to the contrary, in the event of any
casualty to or condemnation of the Premises or any portion thereof, the
Leasehold Mortgagees shall be entitled to receive all insurance proceeds
and/or condemnation awards as their interests appear (up to the amount of the
indebtedness secured by the Leasehold Mortgage) otherwise payable to Tenant or
Landlord or both and apply them in accordance with the Leasehold Mortgage and
shall have the right, but not the obligation, to restore the Premises.
18.2.5 Merger. If Tenant shall acquire fee title, or any
other estate, title or interest in the Premises which is the subject of this
Lease, or any part thereof, or if the leasehold estate created by this Lease,
or any portion thereof, shall be assigned, sold or otherwise transferred to
the owner of such fee title or other estate, title or interest in the Premises
which is the subject of this Lease, then in either such event, upon the
election of the Leasehold Mortgagee first in priority expressly made in
writing at any time thereafter, each Leasehold Mortgage shall attach to and be
a lien upon such fee title and/or other estate so acquired (but only as the
same pertains to the Premises), and such fee title and/or other estate so
acquired shall be considered as mortgaged, assigned and conveyed to each
Leasehold Mortgagee and the lien of each such Leasehold Mortgage shall be
spread to cover such estate with the same force and effect as though
specifically mortgaged, assigned or conveyed in such Leasehold Mortgage (and
upon request of any Leasehold Mortgagee, either or both Landlord and Tenant
shall execute further mortgages, assignments of leases and rents, amendments
to documents and instruments as such Leasehold Mortgagee may reasonably
require for such purpose); provided, however, that notwithstanding the
foregoing, if and so long as any of the indebtedness secured by any such
Leasehold Mortgage shall remain unpaid, unless the Leasehold Mortgagee
thereunder shall otherwise in writing expressly consent, the fee title to the
Premises which is the subject of this Lease and the leasehold estate created
by this Lease shall not merge but shall always be kept separate and distinct,
notwithstanding the union of said estates either in Landlord or in Tenant, or
in a third party, by purchase or otherwise. Nothing in this Section 18.2.5
shall be deemed to subordinate or require Landlord to subordinate the fee
interest of Landlord in the Premises to the lien of a Leasehold Mortgage.
18.2.6 Right of Entry. Each Leasehold Mortgagee shall have
the right to enter upon the Premises at any time for any purpose, including
curing any defaults by Tenant under this Lease, and Landlord hereby agrees to
accept performance and compliance by any such Leasehold Mortgagee of any
covenants, agreements, provisions, conditions and limitations on Tenant's part
to be kept, observed or performed hereunder, with the same force and effect as
though kept, observed and performed by Tenant. Any default by Tenant that is
not susceptible to being cured by a Leasehold Mortgagee shall be deemed waived
by Landlord.
18.2.7 Notice to Tenant. Landlord shall serve Tenant with
notice if Landlord files, or has filed against it, a petition under chapters 7
or 11 of the Bankruptcy Code. Such notice shall be served within twenty-four
(24) hours of such filing. Landlord shall, upon serving Tenant with any notice
of (1) a bankruptcy fling as herein described, (2) default pursuant to the
provisions of this Lease, or (3) a matter on which Landlord may predicate or
claim a default, at the same time serve a copy of such notice upon every
Leasehold Mortgagee that has provided Landlord with notice of its identity and
address, and no such notice by Landlord to Tenant hereunder shall have been
deemed duly given unless and until a copy thereof has been so served on every
such Leasehold Mortgagee.
18.2.8 Termination. Anything contained in this Lease to the
contrary notwithstanding, if any default shall occur which entitles Landlord
to terminate this Lease, or to exercise any other rights, powers or remedies
available to it under this Lease, Landlord shall have no right to terminate
this Lease or to exercise any of such rights, powers or remedies unless
following the expiration of the period of time given Tenant to cure such
default (or the act or omission which gave rise to such default), Landlord
shall notify every Leasehold Mortgagee of Landlord's intent to so terminate or
exercise any such rights, powers or remedies ("Default Notice") at least (x)
sixty (60) days in advance of the proposed effective date of such termination,
or exercise of any rights, powers or remedies if such default is capable of
being cured by the payment of money, and (y) ninety (90) days in advance of
the proposed effective date of such termination, or exercise of any such
rights, powers or remedies if such default is not capable of being cured by
the payment of money ("Default Notice Period"). The provisions of Subsection
18.2.9 below shall apply if during such thirty (60) or ninety (90) day Default
Notice Period, any Leasehold Mortgagee shall notify Landlord of such Leasehold
Mortgagee's desire to nullify such notice (the "Nullification Notice").
18.2.9 Procedure on Default.
(a) If Landlord shall elect to terminate this Lease
or obtain possession of the Premises by reason of any default of Tenant, and a
Leasehold Mortgagee shall have delivered the Nullification Notice set forth in
Subsection 18.2.8, the specified date for the termination of this Lease as
fixed by Landlord in its Default Notice or for the obtaining of possession
shall be extended for a period of six (6) months, provided that such Leasehold
Mortgagee shall, during such six (6) month period:
(1) pay or cause to be paid the monetary
obligations of Tenant under this Lease as the same become due, and continue
its good faith efforts to perform all of Tenant's other obligations under this
Lease, excepting (i) obligations of Tenant to satisfy or otherwise discharge
any lien, charge or encumbrance against Tenant's interest in this Lease or the
Premises junior in priority to the lien of the mortgage held by such Leasehold
Mortgagee and (ii) past non-monetary obligations then in default and not
reasonably susceptible of being cured by such Leasehold Mortgagee (including
by reason of a bankruptcy stay or if possession of the Premises is required in
order to cure such default); provided that Leasehold Mortgagee may offset
amounts it expends to cure any defaults by Landlord under this Lease; and
(2) if not enjoined or stayed, take steps
to acquire or sell Tenant's interest in this Lease by foreclosure of the
Leasehold Mortgage or other appropriate means and prosecute the same to
completion with due diligence.
(b) If at the end of such six (6) month period such
Leasehold Mortgagee is complying with Subsection 18.2.9(a) then this Lease
shall not then terminate, and the time for completion by such Leasehold
Mortgagee of its proceedings shall continue so long as such Leasehold
Mortgagee is enjoined or stayed and thereafter for so long as such Leasehold
Mortgagee proceeds to complete steps to acquire or sell Lessee's interest in
this Lease by foreclosure of the Leasehold Mortgage or by other appropriate
means with reasonable diligence. Nothing in this Subsection 18.2.9, however,
shall be construed to extend this Lease beyond the original term thereof or to
require a Leasehold Mortgagee to continue such foreclosure proceedings after
the default has been cured. If the default shall be cured and the Leasehold
Mortgagee shall discontinue such foreclosure proceedings, this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
(c) If a Leasehold Mortgagee is complying with
Subsection 18.2.9(a) of this Section, then upon the acquisition of Tenant's
estate herein by such Leasehold Mortgagee or its designee or any other
purchaser at a foreclosure sale or otherwise (and the discharge of any lien,
charge or encumbrance against the Tenant's interest in this Lease or the
demised premises which is junior in priority to the lien of the Leasehold
Mortgage held by such Leasehold Mortgagee and which the Tenant is obligated to
satisfy and discharge by reason of the terms of this Lease) this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
18.2.10 Receiver. A Leasehold Mortgagee shall have the right
after institution of foreclosure proceedings to apply to the court for the
appointment of a receiver of the Premises. In the event foreclosure
proceedings have been instituted, any money held by Landlord which becomes
payable to Tenant shall be payable upon demand to such Leasehold Mortgagee as
the interest of such Leasehold Mortgagee may appear when the same so becomes
payable to Tenant. If Landlord shall at any time be in doubt as to whether
such monies are payable to such Leasehold Mortgagee or to Tenant, Landlord may
pay such monies into court and file an appropriate action of interpleader in
which event all of Landlord's costs and expenses (including attorneys' fees)
shall first be paid out of the proceeds so deposited.
18.2.11 No Assumption. For purposes of this Subsection
18.2.11, the making of a Leasehold Mortgage shall not be deemed to constitute
an assignment or transfer of this Lease or of the leasehold estate hereby
created, nor shall any Leasehold Mortgagee, as such, be deemed to be an
assignee or transferee of this Lease or of the leasehold estate hereby
created, so as to require such Leasehold Mortgagee, as such, to assume the
performance of any of the terms, covenants or conditions on the part of Tenant
to be performed hereunder, but the purchaser at any sale of this Lease and of
the leasehold estate hereby created in any proceedings for the foreclosure of
any Leasehold Mortgage, or the assignee or transferee of this Lease and of the
leasehold estate hereby created under any instrument of assignment or transfer
in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be an
assignee or transferee within the meaning of this Subsection 18.2.11 and shall
be deemed to have agreed to perform all of the terms, covenants and conditions
on the part of Tenant to be performed hereunder arising and accruing from and
after the date of such purchase and assignment, but only for so long as such
purchaser or assignee is the owner of the leasehold estate.
18.2.12 Successive Sales. Any Leasehold Mortgagee or other
acquiror of the leasehold estate of Tenant pursuant to foreclosure, assignment
in lieu of foreclosure or-other proceedings may, upon acquiring Tenant's
leasehold estate, without further consent of Landlord, sell and assign the
leasehold estate so acquired on such terms and to such persons or
organizations as are acceptable to such Leasehold Mortgagee or acquiror and
thereafter be relieved of all obligations under this Lease; provided that such
assignee has delivered to Landlord its written agreement to be bound by all of
the provisions of this Lease from and after the date of such assignment.
18.2.13 Leasehold Mortgagee Need Not Cure Specified
Defaults. Nothing herein contained shall require any Leasehold Mortgagee or
its designee as a condition to the exercise of its rights hereunder to cure
any default of Tenant not reasonably susceptible of being cured by such
Leasehold Mortgagee or its designee.
18.2.14 Lease Proceedings. Landlord shall give each
Leasehold Mortgagee that has provided Landlord with notice of its interest and
address, prompt notice of any arbitration or legal proceedings between
Landlord and Tenant involving this Lease. Each Leasehold Mortgagee shall have
the right to intervene in any such proceedings and be made a party to such
proceedings, and the parties hereto do hereby consent to such intervention. In
the event that any Leasehold Mortgagee shall not elect to intervene or become
a party to any such proceedings, Landlord shall give such Leasehold Mortgagee
notice of, and a copy of any award or decision made in any such proceedings,
which shall be binding on all Leasehold Mortgagees not intervening after
receipt of notice of arbitration. Tenant agrees that each Leasehold Mortgagee
shall also have the right to intervene in, and be made a party to, any such
proceedings.
18.2.15 Future Leasehold Mortgage: Amendment of Lease.
(a) Notwithstanding anything in this Lease to the
contrary, each Leasehold Mortgagee shall have the right (if it has such right
under its loan documents) to restrict, limit or prohibit the execution of any
other Leasehold Mortgage junior in priority to the lien of such senior
Leasehold Mortgage, or, in the event of the execution of any such junior
Leasehold Mortgage, to accelerate or increase the interest rate under the
indebtedness secured by such senior Leasehold Mortgage; and
(b) In the event of a Leasehold Mortgage (each, a
"Successor Leasehold Mortgage") the proceeds of which are used to pay off in
its entirety the indebtedness secured by any existing Leasehold Mortgage (each
such existing Leasehold Mortgage, an "Initial Leasehold Mortgage"), then the
Successor Leasehold Mortgage shall be deemed to have succeeded to the position
and all of the rights and priorities of the mortgagee under the Initial
Leasehold Mortgage with respect to the mortgagor under the Initial Leasehold
Mortgage and with respect to third parties.
18.2.16 Certificate. Landlord shall, without charge, at any
time and from time to time within ten (10) business days after written request
of Tenant 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: (1) as to whether this Lease has been supplemented
or amended, and if so, the substance and manner of such supplement or
amendment; (2) as to the validity and force and effect of this Lease, in
accordance with its tenor; (3) as to the existence of any default hereunder or
any event which with the passage of time or notice would constitute a default
hereunder; (4) as to the existence of any offsets, claims, counterclaims or
defenses hereto on the part of Landlord or, to Landlord's knowledge, on the
part of Tenant; (5) as to the commencement and expiration dates of this Lease;
and (6) as to any other matters as may be reasonably so requested. Any such
certificate play be relied upon by Tenant and any other person, firm or
corporation to whom the same maybe exhibited or delivered, and the contents of
such certificate shall be binding on Landlord.
18.2.17 Nominee. Any acquisition by a Leasehold Mortgagee of
the leasehold estate under this Lease, or any rights or privileges thereunder
may be taken in the name of such Leasehold Mortgagee or in the name of any
nominee or designee selected by it.
18.2.18 New Lease. In the event of the termination of this
Lease as a result of Tenant's default prior to the expiration of the term, or
in the event of a rejection by Landlord or Tenant of this Lease under Chapter
11 of the Bankruptcy Code, Landlord shall, in addition to providing the
notices of default and termination as required by this Lease, provide each
Leasehold Mortgagee with written notice that the Lease has been terminated or
that Landlord has filed a request with the Bankruptcy Court seeking to reject
the Lease, together with a statement of all sums which would at that time be
due under this Lease but for such termination or rejection, and of all other
defaults, if any, then known to Landlord. Upon any request of the Leasehold
Mortgagee, or its designee, Landlord agrees to enter into a new lease ("New
Lease") of the Premises with such Leasehold Mortgagee or its designee for the
remainder of the term of this Lease, effective as of the date of termination
or rejection, as the case may be, at the Rent, and upon the terms, covenants
and conditions (including all transfer rights, but excluding requirements
which are not applicable or which have already been fulfilled) of this Lease;
provided, however, that (i) the Leasehold Mortgagee whose lien upon the
Premises is superior to the lien of any other Leasehold Mortgage (the "Senior
Leasehold Mortgagee") shall have the right to give notice of its intent to
enter into a New Lease to the Landlord for a period of 60 days from its
receipt of the notice referred to in the first sentence of this Section
18.2.18 and (ii) if the Senior Leasehold Mortgagee does not exercise its right
to enter into the New Lease during this 60-day period; the Leasehold Mortgagee
whose lien upon the Premises is superior to the lien of any other Leasehold
Mortgage (other than the Senior Leasehold Mortgagee) shall have the right to
give notice of its intent to enter into a New Lease to the Landlord during the
remainder of the period(s) specified below; and provided further, however,
(a) Such Leasehold Mortgagee shall make written
request upon Landlord for such New Lease at the later of (1) within one
hundred (100) days after the date such Leasehold Mortgagee receives Landlord's
notice of termination or rejection of this Lease given pursuant to this
Subsection 18.2.18; or (2) within forty-five (45) days after the actual
termination of the Lease as same may have been extended by Subsection 18.2.18
hereof.
(b) Such Leasehold Mortgagee or its designee shall
pay or cause to be paid to Landlord at the time of the execution and delivery
of such New Lease, any and all sums which would at the time of execution and
delivery thereof be due pursuant to this Lease but for such termination and,
in addition thereto, all reasonable expenses, including reasonable attorneys'
fees, court costs and costs and disbursements which Landlord shall have
incurred by reason of such termination and the execution and delivery of the
New Lease and which have not otherwise been received by Landlord from or on
behalf of Tenant. Upon the execution of such New Lease, Landlord shall allow
to Tenant named therein as an offset against the sums otherwise due under this
Subsection 18.2.18 or under the New Lease, an amount equal to the net income
derived by Landlord from the Premises during the period from the effective
date of termination of this Lease to the date of the beginning of the lease
term under the New Lease. In the event of a controversy as to the amount to be
paid to Landlord pursuant to this Section 18.2, the payment obligation shall
be satisfied if Landlord shall be paid the amount not in controversy, and such
Leasehold Mortgagee or its designee shall agree to pay any additional sum
ultimately determined to be due.
(c) Such Leasehold Mortgagee or its designee shall
agree to remedy any of Tenant's defaults of which said Leasehold Mortgagee was
notified by Landlord's notice of termination or rejection and which are
reasonably susceptible of being so cured by such Leasehold Mortgagee or its
designee.
(d) The Tenant under such New Lease shall have the
same right, title and interest in and to the Premises and buildings and
improvements thereon as Tenant under this Lease. Any holder of any such lien,
charge or encumbrance or sublease shall execute such instruments of
non-disturbance and/or attornment as the tenant under the New Lease may at any
time require.
(e) The tenant under any New Lease shall be liable
to perform the obligations imposed on the Tenant by such New Lease only for
and during the period such person has ownership of the Premises.
(f) If more than one (1) Leasehold Mortgagee shall
request a New Lease pursuant to this Section 18.3, Landlord shall enter into
such New Lease with the Leasehold Mortgagee whose mortgage is in the first
lien position, or with the designee of such Leasehold Mortgagee.
(g) Concurrently with the execution and delivery of
any New Lease, Landlord shall assign to the tenant named therein all of the
right, title and interest in and to moneys (including insurance proceeds and
condemnation awards), if any, then held by and payable by Landlord which
Tenant would have been entitled to receive but for the termination of the
Lease. Upon the execution of any New Lease, the tenant named therein shall be
entitled to any rent received under any sublease in effect during the period
from the date of termination of the Lease to the date of execution of such New
Lease.
SECTION 19
[INTENTIONALLY OMITTED]
SECTION 20
RIGHT OF ACCESS
Landlord and its authorized agents and representatives shall be
entitled to enter the Premises immediately in the case of an emergency or with
reasonable notice for the purpose of observing, posting or keeping posted
thereon notices provided for hereunder, and such other notices as Landlord may
deem reasonably necessary or appropriate; for the purpose of inspecting the
Premises; for the purpose of exhibiting the Premises to prospective purchasers
or lessees; and for the purpose of performing any work upon the Premises which
Landlord may elect or be required to make. In any such case, Landlord and its
agents and representatives shall not unreasonably interfere with Tenant's
operations at the Premises.
SECTION 21
ESTOPPEL CERTIFICATE
Tenant agrees that within ten (10) business days of any demand
therefor by Landlord, Tenant will execute and deliver to Landlord a
certificate stating that this Lease is in full force and effect without
amendment, or if amended attaching a copy thereof to the certificate, the date
to which all rentals have been paid, any defaults or offsets claimed by Tenant
and such other information concerning the Lease, the Premises or Tenant as
Landlord may request. Landlord will provide a similar document to Tenant upon
request by Tenant within ten (10) business days after request.
SECTION 22
EXPENDITURES
22.1 Whenever under any provision of this Lease, Tenant shall be
obligated to make any payment or expenditure, or to do any act or thing, or to
incur any liability whatsoever, and Tenant fails, refuses or neglects to
perform as herein required after notice and an opportunity to cure (which
shall be deemed to be thirty (30) days unless provided for specifically
herein), Landlord shall be entitled, but shall not be obligated, to make any
such payment or to do any such act or thing, or to incur any such liability,
all on behalf of and at the cost and for the account of Tenant. In such event,
the amount thereof with interest thereon at the Default Rate, shall be
collectable on demand.
22.1 Whenever under any provision of this Lease, Landlord shall be
obligated to make any payment or expenditure, or to do any act or thing, or to
incur any liability whatsoever, and Landlord fails, refuses or neglects to
perform as herein required after notice and an opportunity to cure (which
shall be deemed to be thirty (30) days unless provided for specifically
herein), Tenant shall be entitled, but shall not be obligated, to make any
such payment or to do any such act or thing, or to incur any such liability,
all on behalf of and at the cost and for the account of Landlord. In such
event, the amount thereof with interest thereon at the Default Rate, shall be
collectable on demand.
SECTION 23
DEFAULT
23.1 Tenant shall be in default of this Lease if:
23.1.1 Tenant shall fail to make timely and full payment of
any sum of money required to be paid hereunder and such failure continues for
ten (10) days after written notice thereof from Landlord;
23.1.2 Tenant shall fail to perform any other term, covenant
or condition of Tenant contained in this Lease, and such failure continues for
thirty (30) days after written notice thereof from Landlord; provided,
however, that if such failure is impossible to correct within thirty (30)
days, Tenant shall not be deemed in default if Tenant commences correction
within said thirty (30) day period, and diligently pursues such correction to
completion;
23.1.3 Tenant should vacate or abandon the Premises or cease
operations during the Lease Term;
23.1.4 There is filed any petition in bankruptcy or Tenant
is adjudicated a bankrupt or insolvent, or there is appointed a receiver or
trustee to take possession of Tenant or of all or substantially all of the
assets of Tenant, or there is a general assignment by Tenant for the benefit
of creditors, or any action is taken by or against Tenant under any state or
federal insolvency or bankruptcy act, or any similar law now or hereafter in
effect; or
23.2 In the event of a default, in addition to any other rights or
remedies provided for herein or at law or in equity, Landlord, at its sole
option, shall have the following rights:
23.2.1 The right to declare the Lease Term ended and to
re-enter the Premises and take possession thereof, and to terminate all of the
rights of Tenant in and to the Premises;
23.2.2 Pursuant to its rights of re-entry, Landlord may, but
shall not be obligated to (i) remove all persons from the Premises, (ii)
remove all property therefrom, and (iii) enforce any rights Landlord may have
against said property or store the same in any warehouse or elsewhere at the
cost and for the account of Tenant. Tenant agrees to hold Landlord free and
harmless of any liability whatsoever for the removal and/or storage of any
such property, whether of Tenant or any third party whomsoever, except for
damage caused by the willful misconduct or gross negligence of Landlord, its
agents or subcontractors.
23.2.3 Anything contained herein to the contrary
notwithstanding, Landlord shall not be deemed to have terminated this Lease or
the liability of Tenant to pay any Rent or other sum of money accruing
hereunder, by any such re-entry, or by any action in unlawful detainer or
otherwise to obtain possession of the Premises, unless Landlord shall
specifically notify Tenant in writing that it has so elected to terminate this
Lease.
23.2.4 In any action brought by Landlord to enforce any of
its rights under or arising from this Lease, Landlord shall be entitled to
receive its reasonable costs and legal expenses, including reasonable
attorneys' fees, whether such action is prosecuted to judgment or not.
23.4 The waiver by Landlord of any breach of this Lease by Tenant
shall not be a waiver of any preceding or subsequent breach of this Lease by
Tenant. The subsequent acceptance of Rent or any other payment hereunder by
Landlord shall not be construed to be a waiver of any preceding breach of this
Lease by Tenant. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent herein provided shall be deemed to be other than on
account of the earliest Rent due and payable hereunder.
SECTION 24
MISCELLANEOUS
24.1 Tenant, upon paying the rentals and other payments herein
required and upon performance of all of the terms, covenants and conditions of
this Lease on its part to be kept, may quietly have, hold and enjoy the
Premises during the Lease Term without any disturbance from Landlord or from
any other person claiming through Landlord, except as expressly provided
otherwise in this Lease.
24.2 In the event of any sale or exchange of the Premises by
Landlord, Landlord shall be, and is, hereby relieved of all liability under
any or all of its covenants and obligations contained in or derived from this
Lease from and after the date of sale or exchange. Tenant agrees to attorn to
such purchaser or transferee, provided that such purchaser or transferee
agrees to be bound as Landlord under all of the terms and conditions of this
Lease. Any sale of the Premises by Landlord shall be subject to this Lease.
24.3 It is agreed that in the event Landlord fails or refuses to
perform any of the provisions, covenants or conditions of this Lease, Tenant,
prior to exercising any right or remedy Tenant may have against Landlord,
shall give written notice to Landlord of such default, specifying in said
notice the default with which Landlord is charged and Landlord shall not be
deemed in default if the same is cured within thirty (30) days of receipt of
said notice. Notwithstanding any other provision hereof, Tenant agrees that if
the default is of such a nature that the same can be rectified or cured by
Landlord, but cannot with reasonable diligence be rectified or cured within
that thirty (30) day period, then such default shall be deemed to be rectified
or cured if Landlord within that thirty (30) day period shall commence the
rectification and curing thereof and shall continue thereafter with all due
diligence to cause such rectification and curing to proceed.
24.4 Neither party shall be in breach of this Lease if it fails to
perform as required hereunder due to labor disputes, civil commotion, war,
warlike operation, sabotage, governmental regulations or control, fire or
other casualty, inability to obtain any materials, or other causes beyond such
party's reasonable control (financial inability excepted); provided, however,
that nothing contained herein shall excuse Tenant from the prompt payment of
any Rent or charge required of Tenant hereunder.
24.5 Any and all notices and demands required or desired to be given
hereunder shall be in writing and shall be validly given or made (and
effective) if served personally, delivered by a nationally recognized
overnight courier service, or faxed and deposited in the United States mail,
certified or registered, postage prepaid, return receipt requested, to the
following addresses:
If to Landlord: Bora Bora, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Tenant: ▇▇▇▇ Las Vegas, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Either party may change its address for the purpose of receiving notices by
providing written notice to the other.
24.6 The various rights, options, elections and remedies of Landlord
contained in this Lease shall be cumulative and no one of them shall be
construed as exclusive of any other, or of any right, priority or remedy
allowed or provided for by law and not expressly waived in this Lease.
24.7 The terms, provisions, covenants and conditions contained in
this Lease shall apply to, bind and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and assigns, as permitted in Section 17 hereof. Without limiting
the generality of the foregoing, the terms of this Lease, including, without
limitation Section 16 hereof, shall inure to the benefit of and be enforceable
by the Administrative Agent, any successor representative of the Lenders, or
any person or entity to whom the Administrative Agent or such Lenders transfer
their interest in the Deed of Trust.
24.8 If any term, covenant or condition of this Lease, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all terms, covenants and conditions of this
Lease, and all applications thereof, not held invalid, void or unenforceable,
shall continue in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
24.9 Time is of the essence of this Lease and all of the terms,
covenants and conditions hereof.
24.10 This Lease contains the entire agreement between the parties
and cannot be changed or terminated orally.
24.11 Nothing contained herein shall be deemed to create any
partnership, joint venture, agency or other relationship between Landlord and
Tenant other than the relationship of landlord and tenant.
24.12 The captions are descriptive only and for convenience in
reference to this Lease and in no way whatsoever define, limit or describe the
scope or intent of this Lease nor in any way affect this Lease.
24.13 The laws of the State of Nevada shall govern the validity,
construction, performance and effect of this Lease. Each party hereto consents
to, and waives any objection to, ▇▇▇▇▇ County, Nevada as the proper and
exclusive venue for any disputes arising out of or relating to this Lease or
any alleged breach thereof.
24.14 In the event Tenant now or hereafter shall consist of more than
one person, firm, corporation or trust, then and in such event, all such
persons, firms, corporations or trusts shall be jointly and severally liable
as Tenant hereunder.
24.15 A Memorandum of Termination of Lease in the form attached
hereto as Exhibit "D" shall be executed by the parties, shall be held by
Landlord, and shall be recorded by Landlord upon termination of the Lease.
24.16 All necessary actions have been taken under the parties'
organizational documents to authorize the individuals signing this Lease on
behalf of the respective parties to do so.
24.17 The prevailing party in any action regarding this Lease shall
be entitled to receive its costs and legal expenses including reasonable
attorneys' fees, whether such action is prosecuted to judgment or not. The
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the Premises, and/or any claim of injury or damage.
24.18 Landlord and Tenant each represent and warrant to the other
that they have not entered into any written contractual arrangement with, or
promised to pay any broker's fee, finder's fee, commission or other similar
compensation to, or otherwise agreed to compensate, any real estate agent or
broker in connection with this transaction. Landlord and Tenant each agree to
indemnify, defend, save and hold the other harmless from and against all loss,
cost and expense incurred by reason of the breach of the foregoing
representation and warranty arising from any claim for compensation founded
upon or as a result of acts asserted to have been performed on their
respective behalf. Such indemnification obligation shall survive any
termination of the Lease.
24.19 This Lease may be executed in one or more counterparts, all of
which executed counterparts shall be deemed an original, but all of which,
together, shall constitute one and the same instrument. Signature pages may be
detached from the counterparts and attached to a single copy of this document
to physically form one document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above-written.
"Landlord" "Tenant"
Bora Bora, LLC ▇▇▇▇ Las Vegas, LLC
a Nevada limited liability company a Nevada limited liability company
By: Bora, LLC By: Wynn Resorts Holdings, LLC
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By: Wynn Resorts, Limited, a Nevada limited liability company,
a Nevada corporation its sole member
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ its sole member
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
