EXHIBIT 10.19


 


SHOPPING CENTER LEASE


 


THIS
AGREEMENT OF LEASE, made this 28th day of February, 2005, by and
between Jay F. Wilks, Trustee under indenture
dated December 20, 1976 by and between Herbert Cashvan and Marvin Simon,
as Settlors and Jay F. Wilks, as Trustee (hereinafter called “Landlord”),
whose mailing address is 3400 Building, Suite 200, 397 Little Neck Road,
Virginia Beach, Virginia 23452, and telephone number is (757) 340-3535, and Colonial Downs L.P., a Virginia Limited Partnership (hereinafter called “Tenant”),
whose mailing address is:  10515 Colonial
Downs Parkway, New Kent, Virginia, 23124 and telephone number is 804-966-7223.


 


W I T N E S S E T H:


 


1.                                      Demised
Premises. Landlord hereby leases and demises to Tenant and Tenant
hereby takes and leases from Landlord that certain store building (the “Demised
Premises”) which is deemed to be 16,875 rentable
square feet of which 10,000 s.f. shall be leased (“Leased Space”) and the
remaining 6,875 s.f. shall be reserved by Tenant for expansion (“Expansion
Space”), outlined in red on EXHIBIT A attached hereto, in Indian
River Shopping Center (the “Shopping Center”) having a street address of 4301 Indian River Road, Chesapeake, VA. The
exact s.f. will be adjusted to actual following completion of a dimensioned
floor plan that is prepared by Tenant and approval by Landlord. The Leased
Space shall also include the use, without additional charge, of a 10 foot by 40
foot area behind the Demised Premises for the location of satellite dishes
serving the Demised Premises. The “Leased Space,” “Expansion Space,” and the 10
foot by 40 foot satellite dish area shall be constructed and/or improved by
Tenant in accordance with the specifications to be agreed upon prior to the end
of the Feasibility Period (defined herein) at Tenant’s expense. Tenant is taking the “Leased Space and “Expansion Space” in an “as is”
condition.


 


2.                                       Term. Except as otherwise provided
in paragraph 58 below, the term of this lease shall commence on the earlier to
occur of (i) October 1, 2005 or
(ii) the date Tenant opens for business, and shall end on September 30, 2015.


 


3.                                       Purpose. The Demised Premises shall
be used for the purpose of conducting therein to operate a satellite wagering facility in the Demised Premises. Tenant
covenants and agrees that at all times during the term hereof Tenant will
actively conduct such a business in the Demised Premises, and keep the Demised
Premises open for business not less than eight (8) hours per day, Monday
through Saturday) of the Shopping Center, which hours shall be established by
Tenant.


 


4.                                       Definition of “Term” and “Lease Year”.
Except where the context clearly requires otherwise, the word “term,” whenever
used in this lease with reference to the term hereof, shall be construed to
include any renewal term, as well as the original term. The words “Lease Year,”
as used in this lease, shall be construed to mean each twelve (12) month period
elapsing after (i) the commencement of the term, if the term begins on the
first day of a month, or (ii) the first day of the month following the
commencement of the term if the term does not begin on the first day of a
month; provided, however, that the period of the term, if any, beginning after
the commencement of the last full twelve (12) month Lease Year of this lease
shall be deemed to be a “Lease Year” even though it comprises less than twelve
(12) months.


 


1

















 


5.                                       Base Rent. Landlord reserves, and
Tenant covenants to pay to Landlord, without prior demand being made therefore,
as rent for the Demised Premises, the following minimum base rent (the “Base
Rent”) payable in equal monthly installments as follows:


 


	
  Years
  1 – 5:

  	
   

  	
  $7.00
  psf

  	
   

  	
  $5,833.34
  per month

  	
   

  	
  $70,000.00
  per year

  
	
  Years
  6 – 10:

  	
   

  	
  $8.00
  psf

  	
   

  	
  $6,666.67
  per month

  	
   

  	
  $80,000.00
  per year

  



 


In addition, Tenant shall
pay Landlord, as rent for the Expansion Space, from the date of commencement of
the term hereof until and including September 30, 2006, the amount of
$1,719.00. Thereafter, if Tenant elects to retain the Expansion Space, Tenant
shall so advise Landlord in writing on or before October 1, 2006,
whereupon such space shall, ipso  facto, be deemed part of
the Leased Space and the Base Rent shall be increased as follows:


 


10/1/06
– end of Lease year 5       $7.00
psf    $9,843.75 per month         $118,125.00 per year


Lease
year 6 to Lease year 10       $8.00
psf    $11,250.00 per month        $135,000.00 per year


 


In the event Tenant does
not elect to retain the Expansion Space as aforesaid, the Base Rent shall remain
as set forth above and Tenant shall vacate and relinquish the Expansion Space
to Landlord who shall thereupon have the right to lease the same to another
tenant.


 


Each monthly installment
of rent and all other sums due Landlord by Tenant hereunder shall be paid to
Palms Associates on behalf of Landlord on the first day of each month during
the term at Suite 200, 3400 Building, 397 Little Neck Road, Virginia
Beach, Virginia 23452 or at such other place as shall be designated in writing,
from time to time, by Landlord.


 


6.                                       Additional Charges. Tenant shall
pay additional charges as follows:


 


CAM, Taxes and Insurance. Tenant shall pay its actual
pro-rata share of common area maintenance charges (“CAM”) and insurance for the
Leased Space, provided, however, that such amount shall not exceed $2.00 (CAP)
per s.f. during the first year of the Lease. After that, as a component of such
CAP, CAM Charges shall not exceed $.50 per s.f., such amount to increase at the
rate of CPI, while Insurance and Taxes shall not be subject to the CAP. The
current CAM charges are currently estimated at $1.50 per square foot. . It is
understood that additional charges apply to the “Leased Space only at inception
and to the Expansion Space if and when it becomes part of the Lease.


 


7.                                       Percentage
Rent - INTENTIONALLY DELETED


 


8.                                       Gross
Sales – INTENTIONALLY DELETED


 


9.                                       Statement
of Gross Sales and Payment of Percentage Rent – INTENTIONALLY DELETED


 


10.                                 Tenant’s Records - INTENTIONALLY DELETED


 


11.                                 Late
Payments. Tenant covenants and agrees to pay a Late Fee monthly, equal
to the greater of One Hundred Dollars ($100.00) or ten percent ( 10%) of all
rents and all other sums due under this lease from the time said rents or sums
accrue if they are not received by Landlord within five (5) days after
due, Landlord expressly reserving all other rights and remedies provided herein
and/or by law in respect thereto. Tenant further agrees to pay (or to reimburse
Landlord promptly if Landlord elects to pay) any and all costs and expenses
incurred by Landlord in connection with the collection of delinquent rents
and/or the enforcement of any of the provisions of this lease , including
reasonable attorneys’ fees. Tenant 


 


2

















 


further covenants and
agrees to pay Landlord a “bad check” or “returned check” charge in the amount
of Twenty-Five Dollars ($25.00) for each check of Tenant dishonored by Tenant’s
bank.


 


12.                                 Real
Estate Taxes, Common Areas and Insurance


 


(a)                                  Tenant
acknowledges that the parcel of land on which the Demised Premises is located
is a tax parcel (“Landlord’s Parcel”) separate from the remainder of the
Shopping Center. Tenant agrees to pay to Landlord, as additional rent
contemporaneously with the payment of monthly installments of Base Rent an
amount equal to one twelfth of the annual real estate taxes assessed against
Landlord’s Parcel, from time to time, including any special assessment,
provided, however, in the event Tenant does not elect to retain the Expansion
Space, then from and after October 1, 2006, Tenant shall only be required
to pay Landlord, on a monthly basis, an amount equal to one twelfth of 59.5%
(this is meant to be pro rata; Landlord shall provide Tenant evidence of how
this was calculated) of the annual real estate taxes assessed against the
Landlord’s Parcel, from time to time, including any special assessment.


 


(b)                                 Tenant
agrees to, and shall, pay to Landlord, before any fine, penalty, interest or
cost is added thereto for the non-payment thereof, any tax that may be
levied, assessed or imposed, by way of license or otherwise, upon the rent
reserved herein and/or this lease and/or the Demised Premises by any
governmental authority acting under any present or future law, statute,
ordinance or the like.


 


(c)                                  Tenant
agrees to pay to Landlord, monthly as Additional Rent, a common area
maintenance charge based upon the gross square foot floor area of the Demised
Premises as Tenant’s Proportionate Share of the cost of maintaining the Common
Areas of the Shopping Center (hereinafter called “Common Area Charge”). The
Common Area Charge relates to the total cost and expense incurred by Landlord
in operating and maintaining the Common Areas, including, without limitation,
gardening and landscaping of the Shopping Center, landscape watering and
sprinklers, parking lot pavement repairs and maintenance and parking lot
striping, sidewalk repairs and maintenance, trash and rubbish and garbage
removal in the event Landlord provides dumpsters, roof repairs and maintenance,
parking lot lighting, Shopping Center signage repair and maintenance, snow
removal, storm water management fees and fees imposed by any governmental body
having jurisdiction and all costs,
charges, and expenses incurred by Landlord in connection with any charge of any
company providing electricity service, including, without limitation to,
maintenance, repair, installation, and service costs associated therewith. The
Common Area Charge shall also include , the cost of personnel to direct parking
and to police the common facilities and other general Common Area repairs. In
addition, the Common Area Charge shall also include Tenant payments for water
and sewerage charges, if the same is not individually metered by Landlord, and
the lighting of Tenant’s signage, if the same is connected with the parking lot
light meter or is paid by Landlord. Landlord will submeter water for very high
usage tenants.


 


(d)                                 Landlord
shall obtain and keep in force during the term of this lease a policy or
policies of insurance, covering loss or damage to the Shopping Center, the
Common Areas and the building of which the Demised Premises comprise a part, in
an amount not less than eighty percent (80%) of the replacement costs thereof,
providing protection against all perils included within the classifications of
fire, extended coverage, vandalism (exclusive of glass and doors), special
extended perils (all risk), together with public liability insurance with
established limits of coverage deemed appropriate by Landlord for personal
injury or injuries. Tenant agrees to pay to Landlord, as Additional Rent,
Tenant’s Proportionate Share of Landlord’s insurance premium.


 


(e)                                  Landlord
shall estimate Tenant’s Proportionate Share of real estate taxes, Common Area
Charges and insurance premiums on the basis of periods of twelve (12) months,
commencing and ending on such dates as may be designated by Landlord,
one-twelfth (1/12th) of which shall be paid monthly by Tenant as Additional
Rent. Landlord may revise its estimate of such costs at any time. Tenant,
upon notice, shall adjust its monthly installments during the remainder of the
period to reflect such revised 


 


3

















 


estimate. After the end
of each designated twelve (12) month period, Landlord shall furnish Tenant a
statement of the actual costs for the period, and there shall be an adjustment
between Landlord and Tenant, with a payment to Landlord or a credit to Tenant,
as the case may be, to the end that Landlord shall receive the entire
amount of Tenant’s Proportionate Share for such period. Tenant, at its own cost
and expense, has the right to audit the books and records of Landlord regarding
these charges; provided, however, if the actual charges are more than 5% less
than those billed to Tenant, Landlord shall pay for such audit.


 


13.                                 Trade
Fixtures. Tenant agrees, at its own cost and expense, to fixture the
Demised Premises with new trade fixtures. All trade fixtures installed in the
Demised Premises by Tenant shall remain Tenant’s property; provided, however, that
nothing herein shall be deemed to affect Landlord’s remedy of distraint. Tenant
agrees to repair (or to reimburse Landlord for the cost of repairing) any
damage to the Demised Premises occasioned by the installation or removal of
said trade fixtures.


 


14.                                 Acceptance
of Premises. Tenant hereby agrees to accept the Demised Premises from
Landlord as they are found by Tenant on the date hereof and shall have no legal
or equitable remedy based either upon a claim that Landlord failed to deliver
possession in accordance with this lease or based on a claim that the size,
location, layout, dimensions or construction of the Demised Premises or the
parking lots or other Common Areas were not completed and/or furnished in
accordance with the terms of this lease.


 


15.                                 Common
Areas. Tenant, its customers, employees and invitees shall have the
right to use and enjoy free of charge, in common with Landlord, other tenants
and their customers, employees and invitees, the parking areas, approaches,
sidewalks, entrances, exits and roadways (hereinafter collectively called the “Common
Areas”) which Landlord agrees to provide for the reasonable operation of the
Shopping Center. It is expressly understood that the Common Areas are intended
primarily for the use by customers of the stores in the Shopping Center, and
Tenant accordingly agrees that its employees will not use the Common Areas for
the parking or storage of any automobile, truck or any other vehicle owned or
used by any of its employees, except as may be approved in writing by
Landlord. Tenant further agrees that Landlord reserves the right, in its sole
discretion, to designate specific parking area(s) for the use by the employees
and/or customers of Tenant and if so designated, Tenant shall instruct its
employees and/or customers, as the case may be, to park in any such
designated areas. In order to assist Landlord in the enforcement of the
provisions of this paragraph, Tenant agrees that within ten (10) days
after being requested so to do, Tenant will furnish Landlord a written
statement containing the license plate numbers of all employees, agents, and
representatives employed by Tenant in or about the Demised Premises. Tenant
shall not park, or permit to be parked, any delivery vehicles in the Common
Areas intended for the use by customers of the stores in the Shopping Center,
nor permit merchandise delivery from such Common Areas if delivery access and
loading and unloading zones are provided by Landlord. Landlord covenants that,
at all times during the term hereof, it will maintain the Common Areas in a
good condition of repair and adequately lighted and paved, and that, except as
otherwise provided in paragraph 33 below, there will be at least the minimum
number of parking spaces sufficient to satisfy governmental requirements and in
no event shall the number of parking spaces at the Shopping Center existing as
of the date of this lease be reduced by more than twenty (20) spaces during the
term or any extension thereof. Anything in this paragraph to the contrary notwithstanding,
Landlord expressly reserves the right, from time to time, (i) to construct
other buildings and/or enlarge existing buildings on or over the Common Areas
so long as the number of parking spaces is not reduced by more than twenty (20)
spaces, and (ii) increase, reduce, modify or alter the dimensions and
locations of roadways, parking lots, sidewalks and buildings provided such
changes, additions or reductions do not unreasonably interfere with Tenant’s
use of the Demised Premises or reduce the number of parking spaces at the
Shopping Center by more than twenty (20) spaces. Notwithstanding anything to the contrary contained herein, Tenant
shall have the exclusive use of the parking (with the right to mark it for such purpose) on the side and in
the back of the Building as outlined on Exhibit A.


 


4

















 


16.                                 Utility Deregulation.


 


(a)                                  Landlord Control Selection.                                         Landlord
has advised Tenant that presently Virginia Power (“Electric Service Provider”)
is the utility company selected by Landlord to provide electricity service for
the Demised Premises. Notwithstanding the foregoing, if permitted by Law,
Landlord shall have the right that any time and from time to time during the
Term to either contract for service from a different company or companies
providing electricity service (each such company shall hereinafter be referred
to as an “Alternate Service Provider”) or continue to contract for service from
the Electric Service Provider. In such an event, there shall be no interruption
in the electric service to the Demised Premises as a result of or during such
change in provider.


 


(b)                                 Tenant shall Give Landlord Access. Tenant
shall cooperate with Landlord, the Electric Service Provider, and any Alternate
Service Provider at all times and, as reasonable necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service Provider
reasonable access to all electric lines, feeders, risers, wiring, and any other
machinery within the Demised Premises.


 


(c)                                  Landlord Not Responsible for Interruption of
Service.  Except if caused by Landlord’s negligence or willful
misconduct, Landlord shall in no way be liable or responsible for any loss,
damage, or expense that Tenant may sustain or incur by reason of any change,
failure, interference, disruption, or defect in the supply or character of the
electric energy furnished to the Premises, or if the quantity or character of
the electric energy supplied by the Electric Service Provider or any Alternate
Service Provider is no longer available or suitable for Tenant’s requirements,
and no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under the Lease.


 


17.                                 Landlord’s
Repairs and Right of Entry. Landlord shall be
responsible for cleaning and maintaining the Common Areas in a manner similar
to other Shopping Centers in the area of the same quality and size. In
addition, Landlord shall be responsible for maintenance and repair of the
structure of the building, including the roof, walls, and foundations. Landlord
covenants that it will, with reasonable dispatch after being notified in
writing by Tenant of the need therefore, make such repairs to the Common Areas
and outside utility lines and to the exterior of the Demised Premises
(including the gutters, downspouts and outside walls and
parking, sidewalks and grass surfaces on the Property,
but excepting all glass and doors), as may be necessary to keep the same
in a good condition and repair; provided, however, that if the need for such
repair is occasioned by the casualty resulting from negligence or willful act
of Tenant, or any of its agents, employees, or contractors, such repairs shall
be made by Landlord, but the cost of such repairs shall be charged to and be
promptly paid for by Tenant subject to Tenant being given credit for any money
Landlord actually receives in respect to such damage from its insurance. Anything
in the foregoing to the contrary notwithstanding, Landlord shall have no
liability whatsoever for damage or injury to person or property occasioned by
its failure to make any such repair (e.g., injury damage to property resulting
from leaks caused by a defect in the roof, outside walls, gutters and/or
downspouts) unless, within a reasonable time after being notified in writing by
Tenant of the need therefore, Landlord shall have failed to make such repair
and such failure shall not have been due to any cause beyond Landlord’s
control, including, without limitation, strikes and/or inability to obtain
materials and/or equipment at reasonable prices. Landlord, its agents,
employees and contractors, shall have the right after giving Tenant 24 hours
notice except in the case of an emergency, from time to time, to enter and use
insofar as may be necessary the Demised Premises for the purpose of making
any of the aforesaid repairs. Tenant shall not be entitled to any reduction in
rent or to any claim for damages by reason of any inconvenience, annoyance,
and/or injury to business arising out of any repairs made by Landlord pursuant
to this paragraph. Tenant will permit Landlord or its representatives (i) to
enter the Demised Premises during the last six months of the term for the
purpose of exhibiting the Demised Premises to prospective tenants.


 


5

















 


18.                                 Tenant’s
Repairs. Tenant covenants that it will, at all times during the term hereof
and at its own cost and expense, keep the Demised Premises (including, without
limitation,  the interior and rooftop
heating and air conditioning system, the floors, the finish and related work to
be added by Tenant to the exterior walls, toilets, sprinkler system, signage,
interior pipes, plumbing, wires and conduits, and electric lines, windows,
doors, glass, fixtures and equipment) in a good condition of repair and in good
working order (making such repairs and replacements as may be necessary),
unless the need therefore is occasioned by fire or other casualty covered by
Landlord’s fire and extended coverage insurance policy (exclusive of any damage
to glass or doors), in which event such repair and replacement shall be an
expense of Landlord to the extent of such coverage. Tenant agrees to be
responsible and liable for any freezing in pipes and/or within plumbing
fixtures within and serving the Demised Premises and shall pay for the repair
of any damage caused thereby. In this regard, Tenant shall keep the Demised
Premises at a sufficient temperature to prevent such freezing. Tenant
understands and agrees that Tenant (not Landlord) shall be responsible for any
condensation in or around the duct work used by heating and/or air
conditioning.


 


19.                                 Tenant’s
Care of Sidewalks, etc.  Tenant covenants and agrees that it will, at
all times during the term hereof, keep the Demised Premises and the sidewalk
immediately adjoining the Demised Premises clean and free from obstruction,
rubbish, dirt, snow and ice. Tenant shall place all trash, rubbish and garbage
in a proper closed receptacle at the rear entrance of the Demised Premises and
shall pay all costs incident to the removal thereof.


 


20.                                 Tenant’s
Failure to Repair and Remove Debris, etc Tenant agrees that if it fails
to perform any obligation placed upon it by either paragraph 17 or
paragraph 18 of this lease, Landlord, in addition to other remedies provided by
law and/or this lease, after giving Tenant five (5) days written notice may correct
(or have corrected) the default at the cost and expense of Tenant.


 


21.                                 Miscellaneous
Covenants of Tenant. Tenant covenants that: it will comply with all
Federal, State and/or municipal laws, ordinances and regulations relating to
its business conducted in the Demised Premises; it will promptly pay for all
electricity, gas, water and other utilities consumed on, and all sewage
disposal charges assessed against, the Demised Premises and all required meter
deposits and connection fees relating to such utilities; it will promptly pay
for lighting the portion of the marquee in front of the Demised Premises if
used for Tenant’s signage; it will not use the name of the Shopping Center for
any purpose other than as the address of its business to be conducted in the
Demised Premises; it will not use, or permit to be used, the Demised Premises
for any illegal or purpose; it will conduct its business in such manner as will
be in keeping with the character and reputation of the Shopping Center; it will
comply with the Rules and Regulations pertaining to the Shopping Center
attached hereto, as the same may be amended from time to time by Landlord;
; ; it will not use the sidewalks of the Shopping Center for business purposes;
it will not without the prior written consent of Landlord: (i) make any
alteration to any structural portion of the Demised Premises, (ii) use or
permit to be used any advertising medium or device such as a phonograph, radio
or public address system which can be heard outside of the Demised Premises,
and (iii) hold a fire, bankruptcy, going-out-of-business or auction sale;
and it will permit Landlord or its representatives to enter the Demised
Premises during the last twelve (12) months of the term for the purpose of
exhibiting the Demised Premises to prospective tenants, and to place a “For
Rent” sign in a front show window during such period of time.


 


22.                                 Insects
and Rodents. Tenant covenants that it will, at its own expense, take
such steps as shall be necessary to keep the Demised Premises free of termites,
roaches, rodents, insects and other pests and that it will save Landlord
harmless from any damage caused thereby, unless such termites, etc. are coming
from another space in the Shopping Center.


 


6

















 


23.                                 Damage
by Vandals. If the doors,  window
frames, or glass Demised Premises are damaged by persons breaking, or
attempting to break, into the Demised Premises, or by vandals, Tenant covenants
to repair immediately at its own expense any and all such damage; provided, however,
that any such damage to the roof and or exterior walls of the Demised Premises
shall be repaired by the Landlord.


 


24.                                 Fire
Hazard. Tenant covenants that, without the prior written consent of
Landlord, it will not do anything which will increase the rate of fire
insurance on the building of which the Demised Premises constitute a part, and
that if such consent is given, Tenant will pay Landlord the amount of the
increase in the cost of such insurance, as and when the premiums become due.


 


25.                                 Care
of Roof. Tenant agrees that it will not (directly or by sufferance)
place any debris on the roof of the building of which the Demised Premises
constitute a part, or cut, drive nails into or otherwise mutilate the roof,
that it will keep the roof free of all debris and that it will keep the gutters
and downspouts free of Tenant’s or its Agents’ trash; provided, however, Tenant
may place and install heating and air conditioning equipment on the roof
if necessary Tenant understands that roof is under warranty and that Tenant
will not do any action which would violate this warranty.


 


26.                                 Condition
on Termination. Tenant covenants that it will, upon the expiration or
earlier termination of this lease, (a) deliver up to Landlord, peaceably
and quietly, the Demised Premises in good condition as improved by Tenant,
ordinary wear and tear and damage by casualty within the coverage of a standard
fire insurance policy with extended coverage excepted, and (b) remove its
trade fixtures and/or signs from the Demised Premises (unless it is then in
default hereunder, in which event it will not be permitted to effect such
removal) and to repair promptly any damage caused by such removal. Tenant
further covenants that, in the event it does not retain the Expansion Space as part of
the Demised Premises, then on or before October 1, 2006, Tenant will (c) deliver
up to the Landlord, peaceably and quietly, the Expansion Space as improved by
Tenant in the good condition , ordinary wear and tear and damage by casualty
within the coverage of a standard fire insurance policy with extended coverage
excepted, (d) remove its trade fixtures and/or signs from the Expansion
Space and to repair promptly any damage caused by such removal and (e) make
available for use by the Expansion Space the HVAC system and electrical and
plumbing facilities to be installed by Tenant as specified in Exhibit “B”
attached hereto.


 


27.                                 Improvements
to Become Landlord’s. Tenant agrees that all additions and other
improvements installed in the Demised Premises by it, including, without
limitation, all electric wiring, electric fixtures, air conditioning systems,
screens, screen doors, awnings, awning frames and floor coverings (including
carpeting but excepting rugs) shall immediately become the property of Landlord,
and shall not be removed by Tenant at the expiration or earlier termination of
this lease, unless requested to do so by Landlord, in which event Tenant agrees
to do so and to repair promptly any damage caused by any such removal.


 


28.                                 Tenant’s
Liability Insurance. Tenant agrees that it will hold Landlord and any
agent of Landlord harmless from any and all injury or damage to person or
property in, on or about the Demised Premises and the portion of sidewalk
immediately adjoining the Demised Premises, including, without limitation, all
costs, expenses, claims or suits arising in connection therewith; provided,
however, that this clause shall not apply to injury or damage caused by
Landlord’s own negligence or willful act or Landlord’s failure to make any repair
(which Landlord has herein agreed to make) within a reasonable time after
Tenant’s written notice of the need therefore. Tenant will, at all times during
the term hereof, at its own cost and expense, carry with a company or
companies, satisfactory to Landlord, public liability insurance on the Demised
Premises and adjoining Common Areas, with limits of not less than Two Million
Dollars ($2,000,000.00) (provided that Tenant’s coverage shall be no greater
than at its other satellite wagering facilities) for injury or death to one
person and One Million Dollars ($1,000,000.00) for injury or death to more than
one person in any one accident and property damage of One Hundred Thousand
Dollars ($100,000.00), which insurance shall be written or endorsed so as to
protect Landlord, any agent of 


 


7

















 


Landlord and Tenant, as
their respective interests may appear. Said policy or policies shall
contain a provision insuring Tenant against all liability which Tenant might
have under this hold harmless provision, except Landlord’s negligence or
willful act Tenant covenants that certificates of all such insurance policies
shall be delivered to Landlord promptly upon request . If Tenant fails to
provide such insurance within five (5) days after receiving written notice
from Landlord, Landlord may, but shall not be required to, obtain such
insurance and collect the cost thereof as a part of the rent herein
reserved.


 


29.                                 Possession.
In the event Landlord tenders to Tenant possession of the Demised Premises
prior to the commencement of the term hereof, Tenant agrees to diligently
prosecute, perform and complete any construction, fixturing or other
activity that it may conduct in a manner which will not interfere with the
construction, development or operation of the Shopping Center. Tenant shall,
prior to accepting such possession of the Demised Premises, deposit with
Landlord policies or certificates of insurance evidencing compliance with
paragraph 28 hereof.


 


30.                                 Mechanic’s
Liens. Tenant shall not permit any mechanic’s, materialman’s or similar
lien to be filed against any portion of the Demised Premises for any labor
performed or material furnished in connection with any work performed or caused
to be performed by Tenant.


 


31.                                 Security
Deposit. INTENTIONALLY DELETED


 


32.                                 Damage
by Fire or Other Casualty. In the event the Demised Premises, or any part thereof,
shall be damaged by fire or other casualty during the term, Landlord agrees
that it will restore the Demised Premises, with reasonable dispatch, to
substantially the same condition they were in prior to such damage, and if the
Demised Premises are rendered wholly or partially untenantable as a result of
such damage, the Base Rent and all Additional Rent payable hereunder shall be
equitably abated (according to the loss of use) during the period intervening
between the date of such damage and the date the Demised Premises are restored.
Anything in the foregoing to the contrary notwithstanding, if such damage
occurs during the last two (2) years of the term, and if such damage
exceeds fifty percent (50%) of the then insurable value of the Demised
Premises, either Landlord or Tenant may terminate this lease as of the
date of such damage, by giving to the other written notice of its intention so
to do within thirty (30) days after the date such damage occurs; provided,
however, that if this lease gives Tenant an option to extend the term (other
than automatic renewal as set forth in paragraph 2) and Tenant extends the term
of this lease for at least two (2) years by exercising such option within
thirty (30) days after the time such fire or other casualty occurs, neither
Landlord nor Tenant shall have the right to terminate this lease. If this lease
is so terminated, the rental payable hereunder shall be abated as of the date
of such damage, and Tenant shall remove all of its property from the Demised
Premises within thirty (30) days after the notice of termination is given.


 


33.                                 Condemnation.
In the event any portion of the Demised Premises, or 20 % of either the total
parking or the reserved parking, shall be taken by the exercise of the power of
eminent domain (or sold to the holder of such power, pursuant to a threatened
taking), this lease may, at the option of Tenant, be terminated by written
notice given to Landlord within sixty (60) days after the date such taking or
sale occurs. If this lease is not so terminated, Landlord covenants that it
will, at its own expense, promptly after the lapse of said sixty (60) days,
repair such damage and do such work as may be required to repair and
rebuild the Demised Premises, with the view to restoring the Demised Premises
as nearly as practicable to the condition they were in immediately prior to
such taking or sale; provided, however, that whether or not this lease is so
terminated, the Base Rent payable hereunder shall be equitably abated
(according to the loss of use) from the date of such taking or sale. Tenant
shall have no right in or to the proceeds of any award made in any such condemnation
(or proceeds derived from any sale in lieu thereof), except with respect to any
award based on Tenant’s improvements to the Demised Premises, provided such
retention does not result in a reduction of the amount paid to the Landlord, in
which event Tenant shall not be entitled to the amount of the reduction.


 


8

















 


34.                                 No
Representations by Landlord or Agents. Tenant agrees that neither
Landlord nor any agent of Landlord has made any representation, express or
implied, with respect to Federal, State or municipal laws or ordinances
applicable to the Demised Premises or the property of which the Demised
Premises constitute a part (including, without limitation, laws or
ordinances relating to zoning or fire walls), and Tenant shall not have the
right to terminate this lease, nor shall it be entitled to any abatement of
rent payable hereunder or any claim for damages, in the event the Demised
Premises cannot be used by Tenant, in whole or in part, for the purpose for
which Tenant intends to use the same, except as otherwise provided herein.


 


35.                                 Assignment,
Subletting, Mortgaging, Etc. Tenant shall not, without the prior
written consent of Landlord, which consent will not be unreasonably withheld,
conditioned or delayed, assign this Lease, or sublet all or any part of
the Demised Premises. Notwithstanding Landlord’s consent, no assignment or
subletting shall release Tenant from liability for the payment of rent or other
sums due, or the performance of any other obligations, hereunder. In the event
Tenant is a corporation, partnership, or other legal entity, the sale, transfer
or encumbrance of 50% or more of the corporate stock or partnership or other
ownership interest shall be deemed an assignment or encumbrance as the case may be,
in violation of the provisions of this paragraph.


 


36.                                 Occupancy.
INTENTIONALLY DELETED


 


37.                                 Subordination.
This lease is subject and subordinate to all ground or underlying leases (if
any) and to all mortgages or deeds of trust which may now or hereafter
affect such leases, the Demised Premises, or the land on which the Demised
Premises are situated, and to all renewals, modifications and extensions
thereof; provided, however that Landlord shall obtain from any ground lessor or
lender to which this provision applies the right of Tenant to non-disturbance
so long as Tenant is not in default under the Lease in a form reasonably
satisfactory to Tenant and its lenders.


 


38.                                 Waiver
of Subrogation. All fire insurance, extended coverage, and policies
relating to other casualties carried by any party to this lease covering the
Demised Premises and/or the contents thereof, shall expressly waive any right
on the part of the insurer against any other party to this lease, which
right, to the extent not prohibited or violative of any such policy, is hereby
expressly waived. Landlord and Tenant each agree that policies will include
such waiver clause or endorsement so long as the same shall be obtainable
without extra cost, or if extra cost shall be charged therefore, so long as the
party or parties in whose favor such waiver clause or endorsement runs pays
such extra cost. If extra cost shall be chargeable therefore, each party shall
advise the other of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated so to do (C.D.
needs to confirm that this is acceptable to its insurance carrier).


 


39.                                 Default
and Remedies. In the event Tenant shall default in the payment of any
installment of rent herein reserved, or in the event Tenant shall default
in the performance of any of the terms, covenants, conditions or
provisions herein contained binding upon Tenant and such default shall not be
remedied within five (5) days in the case of a monetary default, and
thirty (30) days in the case of a non-monetary default during which time Tenant
is diligently pursuing the cure if it cannot be cured within thirty (30) days,
after written notice thereof shall have been given by Landlord to Tenant, or in
the event Tenant shall be adjudicated a bankrupt or shall become insolvent or
shall make a general assignment for the benefit of its creditors, or in the
event a receiver shall be appointed for Tenant or a substantial part of
its property and such receiver is not removed within ninety (90) days after
appointment, Landlord shall have the right (in addition to all other rights and
remedies provided by law), to reenter and take possession of the Demised
Premises, peaceably or by force, to terminate this lease and to remove any
property therein, without liability for damage to, and without obligation to
store, such property. In the event of such termination, Landlord may (but
shall be under no obligation to) relet the Demised Premises, or any part thereof,
from time to time, in the name of Landlord or Tenant, without further notice,
for such term or terms, on such conditions, and 


 


9

















 


for such uses and
purposes, as Landlord, in its sole and absolute discretion, may determine,
and may collect and receive all rents derived therefrom and apply the
same, after deduction of all appropriate expenses (including, without
limitation, attorneys fees and other costs of collection) to the payment of the
rent payable hereunder, Tenant remaining liable for any deficiency. Landlord
shall not be responsible or liable for any failure to so relet the Demised
Premises or any part thereof, or of any failure to collect any rent
connected therewith. The failure of Tenant to keep the business open for a certain
minimum hours as required under Paragraph 3 shall not constitute a default.


 


40. Tenant shall have the right to self-help
hereunder in the event that Landlord does not cure an event which can be cured
within ten (10) days after written notice from Tenant, or does not begin
and diligently pursue completion within ten (10) days following notice of
matters which will require more than ten (10) days to cure. In the event
Tenant exercise its right of self-help, Tenant shall have the right to offset
the costs of such self-help against rent


 


41.                                 Estoppel Certificate. Within ten (10) days after written
request of Landlord, Tenant shall certify by a duly executed and acknowledged
written instrument to any mortgagee or purchaser, or proposed purchaser, or any
other person, firm or corporation specified by Landlord, as to the validity and
force and effect of this lease, as to the existence of any default on the part of
any party thereunder, as to the existence of any offsets, counterclaims, or
defenses thereto on the part of Tenant, and as to any other matters as may be
reasonably requested by Landlord, all without charge and as frequently
as Landlord deems necessary. Tenant’s failure or refusal to deliver such
statement within such time shall be conclusive upon Tenant (i) that this
lease is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in
Landlord’s performance or obligations hereunder, and (iii) that not more
than one month’s installment of Base Rent has been paid in advance of the due
date.


 


42.                                 Notices.
Any notice herein provided for to be given to Landlord shall be deemed to be
given if and when deposited in United States registered or certified mail,
postage prepaid, addressed to Landlord at Suite 200, 3400 Building, 397
Little Neck Road, Virginia Beach, VA 23452, and any notice herein provided for
to be given to Tenant shall be deemed to be given if and when deposited in
United States registered or certified mail, postage pre-paid, addressed to
Tenant, Attention: President, at 10515 Colonial Downs Parkway, New Kent,
Virginia, 23124, with a copy to James Weinberg, Esq., Hirschler-Fleischer,
Federal Reserve Bank Building, 701 East Byrd, Richmond, Virginia, 23219


 


43.                                 Quiet
Enjoyment. Subject to the terms, covenants and conditions set forth in
this lease, Landlord covenants that Tenant shall have and enjoy quiet and
peaceable possession of the Demised Premises during the term hereof.


 


44.                                 Short
Form Lease. The parties hereto agree that a short form of
lease, of even date herewith, describing the Demised Premises, setting forth
the term and referring to this lease, shall, at the request of either party, be
promptly executed and recorded (at the cost of the requesting party).


 


45.                                 Entire
Agreement. This lease contains the entire agreement between the parties
hereto, and cannot be altered or modified in any way except in writing signed
by the parties hereto.


 


46.                                 No
Waivers. Any failure of either party hereto to insist upon strict
observance of any covenant, provision or condition of this lease in any one or
more instances shall not constitute or be deemed a waiver, at that time or
thereafter, of such or any other covenant, provision or condition of this
lease.


 


47.                                 Pronouns.
Every pronoun used in this lease shall be construed to be of such number and
gender as the context shall require.


 


10

















 


48.                                 Marginal
Headings. The headings appearing on the margin of this lease are
intended only for convenience of reference, and are not to be considered in
construing this instrument.


 


49.                                 Successors
and Assigns. This lease and all the terms, covenants, conditions and
provisions herein contained, shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, personal
representatives, successors and (if and when assigned in accordance with the
provisions hereof) assigns. The undersigned hereby guarantees prompt and
faithful performance of all obligations of tenant hereunder, including the
payment of all rents and other amounts due hereunder.


 


50.                                 Exculpation.
Anything herein to the contrary notwithstanding, in the event of the default by
Landlord in the performance of any of its obligations hereunder, Tenant
expressly covenants and agrees to look solely to Landlord’s equity in the
Shopping Center for the payment of all amounts due Tenant as a result of any
such default by Landlord, and Tenant shall not seek any personal money judgment
against Landlord or any of its trustees or beneficiaries or any of their
respective heirs, personal representatives, successors or assigns.


 


51.                                 Signage.
The erection, display and design of all signage is subject to approval by
Landlord. Tenant shall submit to Landlord a plan and description and
specifications of any signage desired to be installed by Tenant. All signage
must conform to the sign criteria set forth on EXHIBIT C attached
hereto. Tenant shall keep all signs installed (with the consent of Landlord) on
the exterior of the Building of which the Demised Premises constitute a part,
freshly painted, in good repair and operating condition at all times. In
addition, Tenant shall be entitled to the space formerly occupied by the Village Thrift store on the existing pole sign
located near Indian River Road.


 


52.                                 Maintenance. On or before
occupancy, Tenant shall furnish evidence to Landlord that Tenant has contracted
for, and is having performed, preventive maintenance on all HVAC equipment in
the Demised Premises, on at least a quarterly basis. In the event Tenant shall
not have contracted for and/or provided evidence that such HVAC preventive
maintenance is being and will be provided in a manner satisfactory to Landlord,
Landlord shall have the right to so contract for said preventive maintenance to
the HVAC equipment and charge 100% of the cost to do so as Additional Rent
hereunder. Landlord shall have the right to have any unscheduled remedial HVAC
preventive maintenance performed deemed necessary to keep said equipment in
operating condition and Tenant agrees to pay 100% of the charges arising
therefrom as Additional Rent hereunder.


 


53.                                 Waiver
of Homestead Exemption. Tenant waives the benefit of the homestead
exemption as to this lease.


 


54.                                 Waste
and Nuisance. Tenant agrees not to suffer, permit or commit any waste,
nor to allow, suffer or permit any odors, vapors, steam, water, vibrations,
noise, loud music or other undesirable effects to emanate from the Demised
Premises into other portions of the building of which the Demised Premises comprise
a part or into the Common Areas, or otherwise to allow, suffer or permit
the Demised Premises or any use thereof to constitute a nuisance or
unreasonably to interfere with the safety, comfort or enjoyment of the Shopping
Center by Landlord or any other occupants of the Shopping Center or their
customers, invitees or any others lawfully in or upon the Shopping Center. Upon
written notice by Landlord to Tenant that any of the aforesaid is occurring,
Tenant agrees forthwith to cease and discontinue the same and within five ( (5) days
thereafter to make such changes in the Demised Premises and/or install or
remove such apparatus or equipment therein or therefrom as may be required
by Tenant for the purpose of obviating any such condition; and if any such
condition is not so remedied, then Landlord may, at its option, either: (i) enter
upon the Demised Premises and cure such condition in any manner Landlord shall
deem necessary and add the cost and expense incurred by Landlord therefore,
together with all damages, including attorney’s fees, sustained by Landlord, to
the next installment of the Base Rent due and Tenant agrees to pay such amount,
as Additional Rent hereunder, or (ii) treat such failure on the part of
Tenant to remedy such 


 


11

















 


condition as an “Event of
Default” within the meaning of Paragraph 39 of this lease. Tenant hereby
further agrees to indemnify and save Landlord harmless of and from all fines,
claims, demands, actions, proceedings, judgments and damages (including
attorneys’ fees) of any kind or nature by anyone whomsoever arising or growing
out of any breach or non-performance by Tenant of the covenants contained in
this paragraph.


 


55.                                 Holding
Over. Any holding over by Tenant after the expiration of the term with
the written consent of Landlord shall be construed to create a tenancy from
month to month at the same Base Rent reserved during the last lease year of the
term, prorated on a monthly basis, and which tenancy shall otherwise be subject
to the terms and conditions set forth in this lease. Any holding over by Tenant
after the expiration of the term without the written consent of Landlord shall
also be construed to create a tenancy from month to month, subject to the terms
and conditions set forth in this lease, except that the Base Rent shall be 150%
the Base Rent reserved during the last lease year of the term, prorated on a
monthly basis. Tenant agrees to indemnify and save Landlord harmless from and
against any and all costs, losses, damages, liabilities and/or expenses
incurred by Landlord as a result of a delay by Tenant in surrendering
possession of the Demised Premises at the expiration or earlier termination of
the term, including, without limitation, any claims made by any succeeding
tenant due to such delay in surrendering possession.


 


56.                                 Merchants Association. Tenant is
hereby invited to join, and maintain during the term hereof, membership in any
merchants association organized for the Shopping Center and to pay all dues and
assessments charged by such association.


 


57.                                 Protection
of Exclusive. Tenant shall not sell any merchandise in the Demised
Premises which would be in violation of any exclusive use provision in any of
the other leases in the Shopping Center, provided , that this provision shall
not prevent Tenant from selling merchandise which it sells at any of its other
satellite wagering facilities in Virginia.


 


58.                                 Brokerage.                                 In accordance with the
regulations of the Virginia Real Estate Board, Tenant is hereby informed that
The Katsias Company represents the Landlord in this transaction and will be
paid a commission as per a separate agreement Pursuant to Virginia Real Estate
Board regulation Section 6.3, The Katsias Company, makes the following
disclosures:


 


1.                                       In
the above transaction, The Katsias Company represents:


 


o                                    A.                                   the Tenant
exclusively;


 


ý                                    B.                                     the Landlord
exclusively;


 


o                                    C.                                     the Tenant and
Landlord jointly and such dual agency is expressly consented to by the parties
by their execution hereof.


 


2.                                       In
the above transaction, The Katsias Company shall receive compensation from:


 


o                                    A.                                   the Tenant
exclusively;


 


ý                                    B.                                     the Landlord
exclusively;


 


o                                    C.                                     the Tenant and Landlord jointly and such
dual agency is expressly consented to by the parties by their execution hereof.
The Landlord and Tenant acknowledge, agree with, and consent to the
representation and compensation disclosed above.


 


59.                                 Option. Providing that the Tenant
is not in default upon the expiration of the term set forth in Section 2
of the lease, Tenant shall have the right at its election, 180 days prior to
ending of the term of the Lease which is about to expire, to extend this lease
for three (3) additional five (5) year terms (‘Option”), commencing
upon the expiration of the original term on the same terms and conditions as
herein set forth, except that the rent payable shall increase as follows:


 


12

















 


If
Expansion Space Retained by Tenant:


 


	
  Option
  1: Years 11-15 $9.00 psf

  	
   

  	
  $12,656.25
  per month

  	
   

  	
  $151,875.00
  per year

  
	
  Option
  2: Years 16-20 $10.00 psf

  	
   

  	
  $14,062.50
  per month

  	
   

  	
  $168,750.00
  per year

  
	
  Option
  3: Years 21-25 $12.00 psf

  	
   

  	
  $18,675.00
  per month

  	
   

  	
  $224,100.00
  per year

  



 


If
Expansion Space Not Retained by Tenant:


 


	
  Option
  1: Years 11-15 $9.00 psf

  	
   

  	
  $7,500.00
  per month

  	
   

  	
  $90,000.00
  per year

  
	
  Option
  2: Years 16-20 $10.00 psf

  	
   

  	
  $8,333.34
  per month

  	
   

  	
  $100,000.00
  per year

  
	
  Option
  3: Years 21-25 $12.00 psf

  	
   

  	
  $10,000.00
  per month

  	
   

  	
  $120,000.00
  per year

  



 


60.                                 Broker’s Commission. The parties acknowledge that Tenant has been
represented by Thalhimer Cushman and Wakefield representing Tenant and
The Katsias Company representing the Landlord and both will be paid by the
Landlord as per a separate agreement. Otherwise
neither has been represented by a real estate broker and each agrees to
indemnify the other against any claims for brokerage commissions by third party
brokers and/or agents made though such party.


 


61.                                 Contingency. The Lease shall be
subject to (A) a sixty day due diligence period for Tenant after signing
the Lease during which Tenant may terminate the Lease in its sole
discretion with no further liability; and (B) Review and approval of the
Virginia Racing Commission, which must be obtained no later than April 30,
2005. Upon payment by Tenant of a non-refundable fee of $5,583 per month, such
deadline my be extended monthly until July 31, 2005. If such approvals are
not or cannot be obtained within such time frame, Tenant or Landlord may terminate the Lease with no further liability,
unless Tenant agrees to be bound by the terms of the lease absent such
approval. Landlord shall turn the Demised Premises over to Tenant fifteen (15)
days after the Virginia Racing Commission approves the application for a
license. In such an event, Fixed Rent shall commence no later than October 1,
2005.


 


LANDLORD:  Jay F. Wilks, Trustee under indenture dated December 20,
1976 by and between Herbert Cashman and Marvin Simon, as Settlers and Jay F.
Wilks, as Trustee


 


 


	
   

  	
  By:

  	
  /s/ Jay I. Wilks

  	
   

  
	
   

  	
  Jay F. Wilks,
  Trustee

  



 


	
  TENANT:

  	
  Colonial
  Downs L.P., a Virginia Limited Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Stansley Racing,
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian M. Stewart

  	
   

  
	
   

  	
   

  	
  Ian M. Stewart

  
	
   

  	
  Its:

  	
  President

  



 


13

















 


RULES AND REGULATIONS


 


1.                                       All
trash must be kept in a fully enclosed container, or if requested by Landlord,
in a Dumpster or similar container furnished and serviced at Tenant’s expense.


 


2.                                       Tenant
shall keep lights on in show windows, under marquee and under canopy from dusk
until 9:00 p.m. Tenant shall also keep lighted signs on from dusk until
11:00 p.m.


 


3.                                       Tenant
agrees to handle all deliveries and refuse through the rear entrance (if one)
of the Demised Premises.


 


4.                                       No
sign shall be permanently affixed to the plate glass of the store front window without
prior written consent of Landlord.


 


5.                                       Except
during Shopping Center promotions, without the prior written approval of the
Landlord, no sign shall be placed in, or visible through, any show window
advising the public of a fire, bankruptcy, going-out-of-business or auction
sale.


 


6.                                       Tenant
shall keep store lobbies and windows clean at all times and wash them weekly.


 


7.                                       Tenant
shall keep store floors free of trash, chewing gum and other debris, and shall
scrub and wax all vinyl or linoleum flooring at least weekly.


 


8.                                       No
merchandise, vending machines, or telephones shall be located on the sidewalks
or other Common Areas without the prior written approval of Landlord.


 


9.                                       Tenant
shall not change the locks on the front or rear doors of the premises without
providing Landlord with a copy of the new key.


 


14

















 


EXHIBIT B


 


TENANT IMPROVEMENTS / UTILITIES


 


* Prior to the end of the
Feasibility Period , Tenant will deliver to Landlord specific plans addressing
the separation of “Expansion Space,” “Leased Space,” and the 10 foot by 40 foot
satellite dish space, including utilities, HVAC, and all build-out, which plans
are subject to Landlord’s approval, which approval shall not be unreasonably
withheld, conditioned, or delayed.


 


15

















 


EXHIBIT C


 


SIGN CRITERIA FOR INDIAN RIVER
SHOPPING CENTER & SHOPPES


 


The following
specifications shall be controlling for all signs. In such event that this Exhibit C
is in dispute with City sign ordinances, the local jurisdictional codes shall
prevail.


 


Prior to sign purchase
and sign installation, the Tenant shall submit to Landlord three copies of
drawings or renderings of its proposed sign. Each of these copies shall be
reviewed and approved in writing by Landlord prior to Tenant purchasing or
installing said sign. Two (2) copies of the approved drawings shall be
returned to Tenant and/or its sign contractor. Landlord assumes no liability
for purchases or sign installation that is in place prior to Landlord’s written
approval.


 


The installation of a
sign and the cost incurred shall be the responsibility of the Tenant. Sign
construction is to be completed in compliance with the following instructions,
limitations, and criteria (C.D. needs to confirm this criteria):


 


1.                                       Tenant
shall be required to identify the Demised Premises by a sign that shall consist
of channel letters on raceway or individual channel letters and shall be
internally illuminated. If a raceway is used, its color shall match the surface
upon which it is mounted.


2.                                       Sign
drawings shall clearly show sign colors, graphics and frame color as well as
construction and attachment details.


3.                                       The
wording of signs shall be limited to Tenant’s trade name only. Logos will be
permitted.


4.                                       All
signs shall have concealed attachment devices, clips, wiring, transformers,
lamps, tubes and ballast.


5.                                       The
height of the sign letters shall not be less than 12 inches, nor exceed 30
inches. The sign letter shall be no greater than 6 inches in depth.


6.                                       The
length of same sign shall be no greater than 80% of the linear distance of the
storefront upon which the sign will be mounted.


7.                                       No
part of same sign shall hang above or below Tenant’s sign area.


8.                                       Tenant
is also responsible for restoring to its original condition the area upon which
the sign is erected at the end of its tenancy.


9.                                       The
following types of signs are prohibited:


 


a.                                       Any
sign which violates the local City sign codes.


b.                                      Paper
signs, decals and/or stickers utilized as signs.


c.                                       Signs
of a temporary character or purpose.


d.                                      Flashing
signs, moving messages signs, externally lighted, digital reader signs and
changeable letter signs.


e.                                       Signs
extended at right angles to the storefront.


 


Tenant acknowledges that
it is Landlord’s intention to develop and maintain a first-class appearance
for the Shopping Center. The Shopping Center Sign Criteria is an extension of
such intention and Tenant will put forth its best efforts to uphold and
maintain the standards of the Shopping Center.


 


16

















 


GUARANTY OF LEASE


 


THE
UNDERSIGNED, for a valuable consideration, the receipt whereof is hereby
acknowledged, and in further consideration of the execution and delivery of
that certain lease, dated                          ,
2005, by and between Jay F. Wilks,
Trustee under indenture dated December 20, 1976 by and between Herbert
Cashman and Marvin Simon, as Settlors and Jay F. Wilks, as Trustee as
Landlord, and Colonial Downs L.P., a Virginia Limited Partnership, as Tenant,
for premises having an address of 4301
Indian River Road, Chesapeake, VA at the request of the undersigned,
which request is hereby made, hereby jointly and severally unconditionally
guarantee the prompt, full and faithful payment by Tenant of all rent and
performance by Tenant of all other terms, conditions, agreements, covenants and
obligations on Tenant’s part to be performed as provided in said lease;
and the undersigned hereby covenants and agrees that, in the event of Tenant’s
default or defaults, the undersigned will, upon ten (10) days’ prior
written notice from Landlord of Tenant’s default, at one time or from time to
time, as the circumstances may require, perform and fulfill any and
all agreements, covenants and obligations of Tenant in said lease contained,
cure such defaults at their own cost and expense and pay to Landlord all
damages which Landlord may sustain or have sustained by virtue thereof.


 


THE
UNDERSIGNED hereby waives exhausting of recourse against Tenant; waives the
benefit of homestead exemption; and consents to any modification of this lease
and to any assignment of this lease and to any sublease of the demised
premises, in whole or in part, that Tenant or its assignees or sublessees may make,
and agrees that its liability hereunder shall not be affected or released
thereby.


 


This
guaranty shall be construed in accordance with, and governed by, the laws of
the Commonwealth of Virginia.


 


IN
WITNESS WHEREOF, Jacobs Entertainment, Inc. is named Guarantor this     
day of March, 2005.


 


	
   

  	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
  STATE OF

  	
   

  	
   

  	
   

  
	
  CITY/COUNTY OF                                                   ,
  to wit:

  	
   

  
					



 


The
foregoing instrument was acknowledged before me this         day
of                          ,
20             by                                                       


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  
	
  My
  commission expires:

  



 


17