EQUIPMENT LEASE AND SUBLEASE AGREEMENT
THIS EQUIPMENT LEASE AND SUBLEASE AGREEMENT (the "Agreement")
is entered into this ____ day of June, 1999, by and between PLATO
FOUFAS & CO., an Illinois corporation, and PLATO FOUFAS,
individually (hereafter collectively "Foufas"), PARK NATIONAL BANK
& TRUST OF CHICAGO ("Lender") and GLOBAL CENTRAL CORPORATION, a
Colorado corporation, ("Global").
RECITALS
WHEREAS, Foufas is the owner of that certain property and
equipment identified on Exhibit A (the "Owned Equipment") and is
the lessee of that certain property and equipment also identified
on Exhibit A (the "Leased Equipment") (hereafter the Owned
Equipment and Leased Equipment may collectively be referred to as
the "Equipment"); and
WHEREAS, Foufas desires to rent to Global and Global desires
to rent from Foufas the Equipment; and
WHEREAS, the Leased Equipment was delivered to Foufas pursuant
to that certain Equipment Lease (the "Lease") dated as of January 9,
1995 in which Park Western Leasing, Inc. ("Park Western") was
the lessor and Tollgate Stage Door, LLC ("Tollgate") was the
lessee; and
WHEREAS, concurrently with the execution of the Lease, Plato
Foufas, individually, executed an individual guaranty (the
"Guaranty") of the payments due by Tollgate pursuant to the Lease; and
WHEREAS, on January 25, 1995 Park Western entered into a
certain Without Recourse Seller's Agreement (the "Park Western
Agreement") pursuant to which Park Western assigned to Lender the
Lease together with all of Park Western's right, title and interest
in and to the Leased Equipment, and as a result of which Lender is
the current title holder of and holds a security interest in the
Equipment described and set forth on Exhibit A hereto; and
WHEREAS, following the occurrence of various conditions of
default and events of default under the Lease and Guaranty
(hereinafter collectively the "Agreements"), Foufas and Lender
entered into a certain Forbearance Agreement dated as of July 31,
1996 (the "Forbearance Agreement"), pursuant to which Lender agreed
not to execute its rights under the Agreements by virtue of the
existence of defaults thereunder (the "Current Defaults"), subject
to the terms and conditions set forth in such Forbearance
Agreement; and
WHEREAS, pursuant to that certain Forbearance Agreement
executed July 31, 1996, by and between Plato Foufas, Plato Foufas
& Co. and Park National Bank & Trust of Chicago, Lender is the
current title holder of and holds a security interest in the
Equipment described and set forth on Exhibit A hereto.
NOW, THEREFORE, in consideration of the above recitals, the
mutual promises herein contained and such other good and valuable
consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Lease of Equipment. Foufas hereby agrees to lease and
rent to Global the Equipment and Global hereby agrees to lease the
Equipment from Foufas for the term of this Agreement. In addition,
Global acknowledges that a portion of the Equipment is located in
Foufas' storage space located in Nationwide Self Storage, Unit A-
19, in Golden, Colorado (the "Storage"), and Foufas hereby leases
and agrees to allow Global access to the Storage for purposes
consistent with the provisions of this Agreement.
2. Lender's Consent. Lender hereby consents to the lease,
sublease and option grant set forth in Paragraph 17 hereof of the
Equipment set forth on Exhibit A hereto. Lender represents and
warrants that the Lease is valid, enforceable and in full force and
effect and any condition or event of default thereunder is subject
to the Forbearance Agreement attached hereto as Exhibit B.
Further, Lender represents and warrants that the execution and
delivery of this Agreement and the grant of the lease, sublease and
option to Global hereunder do not and will not constitute a default
under the Lease or the Forbearance Agreement. Lender agrees that,
should there occur an event of default under the Lease or the
Forbearance Agreement, Lender shall serve written notice of such
event of default to Global concurrently with any notice sent by
Lender to Foufas and agrees to permit Global the opportunity to
cure any such event or condition of default under the Lease or the
Forbearance Agreement in accordance with their respective terms and
subject to its conditions.
3. Extension of Forbearance Agreement and Option. In
consideration of the mutual covenants and agreements herein
contained, Lender agrees to extend the termination date of the
Forbearance Agreement (the "Forbearance Termination Date") for an
additional twenty (20) months or until August 1, 2001. Lender
further agrees that by such extension the option to purchase the
Leased Equipment granted under the Lease shall remain in full force
and effect until the revised Forbearance Termination Date, provided
that no condition or event of default under the Forbearance
Agreement shall occur or shall fail to be cured in accordance with
its terms and conditions. Lender further represents and warrants
that the option price which will be necessary to be paid under the
Lease to purchase the Equipment shall not exceed the sum of Thirty-
Five Thousand Dollars ($35,000).
4. Rental. Global shall pay Foufas as rent for the use of
the Equipment, the sum of One Thousand Seven Hundred Dollars
($1,700) per month for each month during the term hereof, with the
first payment due upon and subject to Global obtaining a valid
gaming casino license (the "License") from the Colorado Division of
Gaming permitting the operation of the Tollgate Casino in Central
City, Colorado (the "Casino"), which date shall be the Commencement
Date of this Agreement. Should Global not receive or obtain the
License on or before August 31, 1999, this Agreement shall
terminate without liability to Global to pay any rent hereunder.
In addition, beginning on the Commencement Date, Global shall pay
and discharge all rent and other sums due for use and occupancy of
the Storage; provided, however, that Global shall have the right to
remove all items of personal property from the Storage Unit and
upon Global's notification of Foufas that all items of personal
property have been removed from the Storage, Foufas shall terminate
the Storage Unit Lease and Global shall have no further obligation
to pay rent or other sums due thereunder.
5. Possession. Possession of the Equipment shall be
delivered to Global upon execution of this Agreement. Global
accepts the Equipment in an "as is" condition.
6. Ownership and Use.
a. Foufas represents and warrants that the Owned
Equipment is owned by Foufas free and clear of all claims, liens or
encumbrances of third parties. During the term hereof, Foufas
agrees not to suffer or permit any liens or other encumbrances to
be asserted against such Owned Equipment described on Exhibit A and
agrees at all times to maintain itself as the sole and exclusive
owner of such property.
b. Foufas represents and warrants that the Leased
Equipment is held subject to the Forbearance Agreement and the
Lease. Foufas represents and warrants that the Forbearance
Agreement is valid, enforceable and in full force and effect and
there does not exist any condition or event of default thereunder.
During the term hereof, Foufas agrees to maintain such Forbearance
Agreement in full force and effect and not to suffer or permit any
default to occur thereunder. Foufas agrees that, should there
occur a default under the Forbearance Agreement during the term,
Foufas shall serve written notice of such default upon Global and
grants to Global the right without further notice to Foufas to make
such payments and take such other actions as Global may deem
necessary, reasonable or advisable to cure such default and to
maintain such Forbearance Agreement in full force and effect and in
good standing. Any costs or expenses incurred by Global to cure
any default under any such Forbearance Agreement may be offset and
credited by Global against any and all rent due hereunder as well
as against payment of the option price, should Global exercise its
option to purchase granted hereunder.
c. Global shall keep the Equipment free and clear from
all claims, levies, liens, and encumbrances. Global shall give
Foufas immediate notice of any attachment, seizure or other process
affecting any article of Equipment.
d. Global shall not pledge, lend, create a security
interest in, sublet or relinquish possession of the Equipment or
any part thereof, or attempt in any manner to dispose of the
Equipment, or remove the Equipment or any part thereof from its
casino without Foufas's written consent. Global shall operate and
use the Equipment in accordance with all applicable manufacturers'
and owners' manuals of instruction, and such operations shall be by
competent and qualified personnel.
e. Global shall keep the Equipment at the location of
the Tollgate Casino, Central City, Colorado, and the Equipment
shall not be removed therefrom without the prior written consent of
Foufas. Foufas shall have the right to inspect the Equipment at
any reasonable time during normal business hours. If Foufas
provides Global with labels stating that the Equipment is owned by
Foufas, Global shall affix and keep same in a prominent place on
each item of Equipment.
f. Global shall use the Equipment in a careful and
lawful manner in compliance with all laws, ordinances, regulations,
requirements and rules of any governmental authority with respect
to the use, maintenance, modification and operation of the
Equipment. Global shall provide Foufas with written certification
of such compliance upon reasonable request by Foufas. Global shall
not make any alterations, additions or improvements to the
Equipment without the prior written consent of Foufas, which
consent shall not be unreasonably withheld. All additions and
improvements made to the Equipment shall be the property of Foufas,
shall not be removed without the prior written consent of Foufas,
and shall be made at the sole cost and expense of Global.
7. Repairs and Maintenance. Global shall keep the Equipment
in good working condition, and shall pay all costs and expenses
associated with all repairs and replacement parts necessary for the
proper maintenance and preservation of the Equipment. Global shall
provide all the repair services, parts and supplies necessary to
properly maintain the Equipment.
8. Expenses. Global shall be liable for all expenses which
may be incurred from time to time arising out of this Agreement,
including but not limited to all property taxes, license fees, use
and excise taxes, title and registration fees and other
governmental assessments imposed as a result of the Equipment's
presence and use in Central City, Colorado.
9. Damage or Theft. Global hereby agrees to replace or pay
the fair market value of any of the Equipment which is damaged,
destroyed, stolen or which in any way becomes unavailable for
return to Foufas. Upon termination of this agreement, provided
Global does not exercise the purchase option provided for herein,
all Equipment shall be returned in good working condition, ordinary
wear and tear excepted.
10. Insurance. Global shall provide and maintain insurance
against loss, theft, damage or destruction of the Equipment in an
amount no less than the fair market value of the Equipment, with
Foufas and Lender named as co-insured. Global shall also provide
and maintain comprehensive general all-risk liability insurance
insuring Global and naming Foufas and Lender as co-insureds against
any and all loss or liability for damages either to person or
property or otherwise which may result or arise from any condition,
use or operation of the Equipment. Each policy shall expressly
provide that said insurance as to Foufas and Lender and their
respective assigns shall not be invalidated by any act, omission or
neglect of Global and cannot be canceled without thirty (30) days'
written notice to Foufas and Lender. As to each policy, Global
shall furnish Foufas and Lender with a Certificate of Insurance
from the insurer, which Certificate shall evidence the insurance
coverage required by this paragraph and shall designate Foufas and
Lender as loss payees and/or additional insureds. If Global fails
to procure or maintain said insurance, Foufas and/or Lender shall
have the right, but shall not be obligated, to effect such
insurance, in which event Foufas or Lender, as the case may be,
shall notify Global of any such payment and Global shall repay such
party within fifteen (15) days after such notice is mailed to
Global.
11. Term. The term of this Agreement shall commence upon
Global obtaining the License from the Colorado Division of Gaming
permitting the operation of the Casino (the "Commencement Date")
and shall terminate twenty-two (22) months following the
Commencement Date (the "Termination Date").
12. Return of Equipment. Upon termination of this Agreement,
Global hereby agrees to return to Foufas possession of the
Equipment. Possession shall be redelivered to Foufas at the Casino
premises.
13. Assumption of Liability for Use of Tollgate Tokens.
Global does hereby agree to assume any and all liability whether
financial or otherwise, for whatever reason, arising during the
term of this Agreement out of Global's use of Tollgate Casino
tokens, including, but not limited to, any liability relating to
the redemption of Tollgate Casino tokens pursuant to applicable
Casino Gaming regulations. Global shall otherwise indemnify Foufas
for any claims, actions, damages or liabilities, including
attorneys' fees, arising out of the use of Tollgate Casino tokens
by Global, its agents and/or assigns.
14. Default. The occurrence of any of the following events
shall constitute a "default":
a. Failure by Global to pay any installment of monthly
rent or other sum due and owing, now or hereafter owed by Global to
Foufas under this Agreement, which default remains uncured after
thirty (30) days' written notice;
b. Failure in the performance of any obligation,
covenant or liability contained in this Agreement or any other
agreement with Foufas in connection herewith, which default remains
uncured after thirty (30) days' written notice;
c. Any warranty, representation or statement made or
furnished by or on behalf of Global proving to have been false in
any material respect when made or furnished, which default remains
uncured after thirty (30) days' written notice;
d. Loss, theft, damage, destruction without insurance
required in Paragraph 9 hereof or without replacement by Global, or
attempted sale, bulk transfer or encumbrance by Global of any of
the Equipment, or the making of any levy, seizure or attachment
thereof; or
e. Dissolution, termination of existence,
discontinuance of Global's business, insolvency or appointment of
a receiver of any part of the property of, or assignment for the
benefit of creditors by Global, or the commencement of any
proceeding under any bankruptcy, reorganization or arrangement laws
by or against Global.
15. Global's Remedies. Upon the occurrence of default,
Foufas shall have the following rights and remedies which shall be
cumulative and which may be exercised with or without notice, and
which may be exercised separately, independently or concurrently
and more than once and in any order, and without any election of
remedies to be deemed made, and without affecting the right of
Foufas to exercise any other remedy hereunder or which Foufas may
have in law:
a. To declare all unpaid monthly rent under this
Agreement to be immediately due and payable, in which event this
Agreement shall continue in full force and effect;
b. To terminate this Agreement as to any or all of the
Equipment;
c. To take possession of the Equipment wherever found,
and for this purpose enter any premises of Global or any other
location without any liability for suit, action or other
proceedings by Global and remove the Equipment;
d. To cause Global at its expense to promptly return
the Equipment to Foufas;
e. To repair, recondition, maintain, remove, transport
or store the Equipment at Global's expense;
f. To use, hold or otherwise dispose of the Equipment
without affecting Global's obligations hereunder; or
g. To proceed by appropriate action, either by law or
in equity to enforce performance by Global of the applicable
covenants, promises or undertakings of this Agreement or to recover
damages for the breach thereof.
16. Indemnification. Global hereby agrees to indemnify and
hold harmless Foufas from any and all liability, causes of action,
damages, costs or expenses of whatever kind or nature resulting
from the existence of or the operations of its casino, Global's
possession and use of the Equipment, and any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits,
costs, expenses and disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against Foufas, in
any way relating to or arising out of this Agreement or the
enforcement of this Agreement against Global of any of the terms
hereof. If Global has or receives any knowledge or notice of any
claim, liability, or potential claim or liability, it shall give
prompt written notice of same to Foufas. Global shall, at its
expense, and at Foufas's option, defend any action, suit or
proceeding with counsel reasonably satisfactory to Foufas;
provided, however, that Global shall not admit liability on behalf
of Foufas or settle any such action without the consent of Foufas.
17. Assignment. Assignment by Foufas or Global of any right,
obligation or duty, in whole or in part, or any other interest
hereunder, requires consent by the other party and Lender. Such
consent shall not unreasonably be withheld. Any and all
obligations and duties of any of the parties hereunder shall be
binding on all successors in interest and assigns of such party and
shall survive any acquisition, merger, reorganization or other
business combination to which it is a party.
18. Option to Purchase. Upon the termination of the
Agreement, Global shall have the right and option to purchase all
of the Equipment. Such option may be exercised at Global's
election by delivering written notice to Foufas at least thirty
(30) days prior to the Termination Date. The purchase price for
the equipment shall be an aggregate of Thirty-Five Thousand Dollars
($35,000) for all of the Equipment. Upon exercise by Global of the
option to purchase granted herein, Global shall also be obligated
to pay the balance, if any, of all rent which may be due and owing
under this Agreement from the date of exercise to the Termination
Date. Foufas shall be obligated to exercise all rights to purchase
the Leased Equipment under the terms of the Lease, and pay all
costs associated therewith, and thereafter to convey to Global the
Equipment by xxxx of sale with general warranty of title against
tender and delivery by Global of payment of the purchase price,
which shall occur within thirty (30) days of the date of Global's
exercise of the option herein granted. Should Foufas fail to
exercise all rights to purchase the Leased Equipment under the
terms of the Lease within the time provided, Global shall have the
right to tender to Lender payment of the option exercise price and
all associated costs; whereupon Lender shall convey the Equipment
by Xxxx of Sale with general warranty of title to Global and Global
shall pay to Foufas the balance, if any, between the aggregate
purchase price of Thirty-Five Thousand Dollars ($35,000) and the
sums paid by Global to Lender to exercise the purchase option. The
Equipment shall be conveyed by Foufas or Lender, as the case may
be, to Global free and clear of all liens, claims or encumbrances
of third parties.
19. Force Majeure. Neither party shall be held liable for
any delay or failure in performance of any part of this Agreement
from any cause beyond its control, including, without limitation,
acts of God, acts of civil, governmental or military authority,
government regulations or changes thereof, embargoes, epidemics,
war, terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, strikes, power blackouts,
other major environmental disturbances, or severe weather
conditions.
20. Resolution of Disputes.
a. In the event of a dispute, claim or controversy
arising out of or related to this Agreement or any other agreements
arising hereunder, the laws of the United States and the State of
Colorado shall be applied and shall govern such dispute, claim or
controversy without regard to choice of law provisions.
b. Any action or proceeding brought to resolve any
controversy or claim arising out of or relating to this Agreement
shall take place in Denver, Colorado, U.S.A.
c. In any action or proceeding brought to enforce any
provision of this Agreement, the prevailing party in such dispute
shall be entitled to an award for all costs and expenses incurred
in connection therewith, including an award for reasonable
attorneys' fees.
21. Waiver. Waiver by either party of any violation or non-
performance by the other party of any of its obligations hereunder
shall not be considered a waiver of any other of the party's
obligations, covenants or agreements, nor shall any forbearance by
other parties be deemed a waiver by such party of its right to
remedies with respect to such violation of non-performance.
22. Severability. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any
other provision of this Agreement, and each such other provision
shall to the full extent consistent with law continue in full force
and effect. If any provision of this Agreement should be invalid
in part, such invalidity shall in no way affect the rest of such
provision, which shall, together with all other provisions of this
Agreement, to the full extent consistent with law, continue in full
force and effect.
23. Prior Agreements. This Agreement supersedes all prior
discussions, negotiations and agreements between Foufas and Global,
and cannot be altered or amended except by agreement in writing
signed by both parties.
24. Execution. This Agreement may be executed by duly
authorized officers of the respective parties hereunder in any
number of counterparts, each of which shall be deemed the original.
25. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing in the English
language and shall be delivered personally or sent by first class
registered or certified mail, overnight courier service, or
telecopy as follows:
If to Global, to: Xxxxxxx X. Xxxxxxxxxxx, President
Global Central Corporation
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxx, LLC
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
If to Foufas: Plato Foufas, President
Plato Foufas & Co.
Xxx XXX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxx & Associates, P.C.
Xxx XXX Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
If to Lender: ________________________________
Park National Bank & Trust of Chicago
________________________________
________________________________
Fax:____________________________
with a copy to:
________________________________
________________________________
________________________________
Fax:____________________________
or such other address or telecopy number as may be designated in
writing by any party to the other parties hereto. Any notice or
other communication so transmitted shall be deemed to have been
given on the day of delivery, if delivered personally, on the
business day following receipt of telecopy confirmation, if sent by
telecopy, one business day after delivery to an overnight courier
service, or five days after mailing if sent by mail.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
PLATO FOUFAS & CO.
By:/s/Plato Foufas
Plato Foufas, President
___________________________
PLATO FOUFAS
GLOBAL CENTRAL CORPORATION
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx,President
PARK NATIONAL BANK & TRUST OF CHICAGO
By:
