FIRST AMENDMENT TO CARDIVAN LICENSE AGREEMENT
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"RCT" means the material omitted has been filed separately with the Securities and
Exchange Commission with an application requesting confidential treatment.
FIRST AMENDMENT TO CARDIVAN LICENSE AGREEMENT
This FIRST AMENDMENT TO LICENSE AGREEMENT ("First Amendment") made as of this 27th day of March 2000, between RITE AID CORPORATION ("Licensor"), a Delaware Corporation, and CARDIVAN COMPANY ("Licensee"), a Nevada corporation.
W I T N E S S E T H:
WHEREAS, Licensor and Licensee entered into a License Agreement as of March 12, 1999 (the "License Agreement"); and
WHEREAS, disputes have arisen between Licensor and Licensee; and
WHEREAS, Licensor and Licensee wish to resolve all outstanding disputes and for that purpose seek to amend and modify the License Agreement upon the terms and provisions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing premises and the covenants and agreements hereinafter set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto mutually covenant and agree that the License Agreement is modified and amended as follows:
1. Effective Date. The Effective Date of this First Amendment shall be the date upon which Licensee receives approval from the Nevada Gaming Commission to remove the conditions on its presently issued licenses to operate Devices at the Licensed Locations which require a full-time change attendant to be present on the premises of each such operation. Pending the Effective Date, the parties shall perform their respective obligations under the License Agreement, as intended to be modified by this First Amendment, to the extent permitted by law. From the date hereof to the Effective Date, Licensee shall pay monthly fees pursuant to the fee schedule set forth on the annexed exhibit. In the event that prior to the Effective Date, Licensee fails to pay such fees when due, otherwise fails to perform its obligations under the License Agreement as intended to be amended hereby, to the extent consistent herewith or in the event the Nevada Gaming Commission does not grant the necessary approvals within RCT of the date hereof, the parties shall be returned to their respective positions and status as of February 29, 2000, including the revival of all claims by Licensee and Licensor, without prejudice by reason of the passage of time or the negotiation and execution of this First Amendment.
2. Definitions. All capitalized terms contained in this First Amendment, unless otherwise hereinafter contained, shall have the same meaning as in the License Agreement.
3. Purpose. Section 1 is hereby modified by adding the following after the last sentence:
Licensee shall have the exclusive right, at its option, to operate Devices in New Locations operated by Licensor at the fees set forth in this First Amendment provided that, if Licensee elects not to operate Devices in any New Location(s), Licensee shall be released and discharged of its obligation to pay any license fees to Licensor for such location(s) and Licensor may contract with an alternative route operator to operate Devices at the locations not accepted by Licensee. Licensee shall make its election with respect to each potential New Location within thirty (30) days of written notice by Licensor of the availability of a New Location, provided however that such notice by Licensor shall not be given more than nine (9) months prior to the opening of any such location.
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4. License. The next to the last sentence of Section 2 is amended by adding the following at the beginning thereof: "Subject to the provisions of Section 1".
5. The last sentence of Section 2 is deleted and replaced with the following:
Licensee may determine the number of machines to operate at each location but shall operate a minimum of RCT Devices at each location. Subject to obtaining the approval of the Nevada Gaming Commission, Licensee shall not be required to have a full time adult change attendant at at Location having RCT or fewer Devices. In all New Locations in which Licensee elects to operate Devices, including the six (6) Rite Aid locations in which Licensee hereby agrees to operate Devices (the "Six Locations")*, Licensee may, in its sole discretion place up to RCT but no less than RCT Devices at each such location. In the event that Licensee elects to place Devices in any New Location, including the Six Locations, it shall nevertheless have no obligation to do so until receipt of appropriate approval by the Nevada Gaming Commission.
*The Six Locations are:
| Xxxxx County | ||
Rite Aid #0000 Xxxxx Xxx Xxxxx Xxxx. Xxxxxxxx Xxxx Xxx Xxxxx, XX 00000 |
Rite Aid #6345 0000 Xxxxx 0000 X. Xxx Xxxxx, XX 00000 |
|
Rite Aid #6257 0000 Xxxx Xxxx Xxxx Xxx Xxxxx, XX 00000 |
Rite Aid #6113 0000 X. Xxxxxxxxxx Xxxx. Xxx Xxxxx, XX 00000 |
|
Non Xxxxx County |
||
Rite Aid #6354 0000 X. Xxxxxx Xxxxxx Xxxx, XX 00000 |
Rite Aid #6364 000 Xxxx Xxxxxxxx Xxx. Xxxxxx, XX 00000 |
6. Term. The first sentence of Section 3 is deleted and replaced with the following:
The term of the License Agreement which began effective July 1, 1998, shall expire at midnight on the RCT.
7. Fees. Section 4 is modified by deleting Sections 4a and 4b, in their entirety, including the fee amounts and increases there scheduled, and substituting therefore the fee schedule attached hereto as exhibit "Amendment A."
Section 4c is modified by deleting it in its entirety and substituting therefore, the following:
During the term of this Agreement, as here amended, if Licensor opens or acquires any New Location and Licensor determines to include Devices at such New Location, and if Licensee elects to exercise its right to place Devices in such New Location, then, the fees due to be paid for each such New Location in which Licensee in fact places Devices shall be RCT of the then applicable monthly fee as set forth on Exhibit "Amendment A" hereto during the RCT period following the date any such New Location is opened for business by Licensor; provided, that if Licensor has not taken all steps required to be taken by it to permit Licensee to commence operations at a New Location in which Licensee has elected to place Devices, the RCT period shall not commence until all such actions have been taken.
Section 4 is further modified by adding new Subsection 4(g) as follows:
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Notwithstanding anything contained herein to the contrary, during the term of this Agreement as hereby amended, Licensee shall pay a license fee of RCT per month for each of the Six Locations, commencing with respect to each Location ont he date on which Devices are installed and are allowed to operate pursuant to all required gaming licenses and permits having been obtained for each such Location. Such installation shall be made reasonably promptly after approval. Prior to said commencement date, there shall be no liability or obligation for any license fee for said Six Locations. Fees for any partial month shall be prorated.
Section 4 is further modified by adding new Subsection 4(h) as follows:
On the date that monthly fees are next required to be paid after the Effective Date, Licensee shall RCT due for the then existing Licensed Locations for the next succeeding RCT.
8. Use and Operation. Section 7 is hereby modified by adding the following after the last sentence:
With respect to any Licensed Location, (including the Six Locations and any New Location in which Licensee elects to place Devices), in which Licensee operates RCT or fewer Devices, Licensor's employees will provide appropriate adult supervision, (over age 21) as required by the Nevada Gaming Commission and will make change for adults (persons over the age of 21) who wish to play the Devices. Licensee agrees to provide suitable training for Licensor's employees, and will remain liable for any fine, penalty or other governmental sanction arising from any failure to supervise.
9. Default. Subsections 13(a) and 13(b) are hereby modified by adding "together with all costs and attorneys' fees" to the last sentence of each Subsection. Subsection 13(c) is deleted in its entirety, and is replaced with the following:
To treat all amounts due and not paid by Licensee up to the date of such default as an indebtedness of Licensee immediately due and payable to Licensee and recover the same together with all costs and reasonable attorney's fees incurred to collect such amount.
10. Assignment. Section 14 is modified by (i) deleting the first clause consisting of the language "Licensee may not assign this Agreement without prior approval of Licensor" and (ii) substituting therefore the following:
Upon the written approval of Licensor, which shall not be unreasonably withheld, Licensee shall have the right to assign this License Agreement, as amended, to another unaffiliated route operator or other third party.
11. Successors and Assigns. The covenants, agreements, terms and conditions contained in this First Amendment shall bind and inure to the benefits of the parties hereto and their respective successors and their respective assigns.
12. This First Amendment is integrated with the License Agreement and, upon the Effective Date, the License Agreement will be deemed to exist and will survive only as modified by the First Amendment. Upon the Effective date the parties shall prepare and execute a superceding global License Agreement incorporating the remaining relevant portions of the Agreement and this First Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed the Lease on the date first set forth hereinabove.
| RITE AID CORPORATION | ||||
By: |
/s/ XXXXX X. XXXXXXX Name: Xxxxx X. Xxxxxxx Title: Sr. Ex. V.P. Chief Administrative Officer |
|||
CARDIVAN COMPANY |
||||
By: |
/s/ XXX XXXXXX Name: Xxx Xxxxxx Title: Secretary |
|||
4
FEE SCHEDULE
CARDIVAN COMPANY
| |
# Stores |
RCT Monthly Fee |
RCT Monthly Fee |
RCT Monthly Fee |
||||
|---|---|---|---|---|---|---|---|---|
| Stores—Xxxxx County | 15 | RCT | RCT | RCT | ||||
| TPI stores—Xxxxx County | 3 | RCT | RCT | RCT | ||||
| Stores—non-Xxxxx County | 4 | RCT | RCT | RCT | ||||
| Store—Gardnerville | 1 | RCT | RCT | RCT | ||||
| 23 | ||||||||
| Other stores—Xxxxx County | 4 | RCT | RCT | RCT | ||||
| Other stores—non-Xxxxx County | 2 | RCT | RCT | RCT | ||||
| 6 | ||||||||
| Total Stores | 29 | |||||||
EXHIBIT "AMENDMENT—A"
Page 1 of 4
Stores—Xxxxx County
Rite
Aid #6193
0000 X. Xxxxx Xxxx
Xxxxx Xxx Xxxxx, XX 00000
Rite
Aid #6217
000 X. Xxxxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6220
0000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6221
0000 X. Xxxx Xxxx Xxxx.
X. Xxx Xxxxx, XX 00000
Rite
Aid #6222
0000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Rite
Aid #0000
00 Xxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6245
0000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6250
0000 X. Xxxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6260
0000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6261
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6271
0000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6272
0000 X. Xxxxx Xx.
Xxx Xxxxx, XX 00000
Rite
Aid #6277
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6292
0000 X. Xxxxxxxxx
Xxx Xxxxx, XX 00000
Page 2 of 4
Rite Aid #6296
000 X. Xxxxxxxx
Xxxxxxxx, XX 00000
TPI Stores—Xxxxx County
Rite
Aid #6114
0000 X. Xxxxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6115
0000 X. Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6116
0000 X. Xxxxxx Xxx
Xxx Xxxxx, XX 00000
Stores—Non Xxxxx County
Rite
Aid #6247
0000 Xxx Xxxxxx Xxxx.
Xxx Xxxxxx, XX 00000
Rite
Aid #6279
0000 X. Xxxxxx Xxx
Xxxxxx, XX 00000
Rite
Aid #6281
0000 X. Xxxxxxxx
Xxxx, XX 00000
Rite
Aid #6290
0000 Xxxx Xxxxx
Xxxx, XX 00000
Store—Gardnerville
Rite
Aid #6121
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxxxx, XX 00000
Other stores—Xxxxx County
Rite
Aid #6113
0000 X. Xxxxxxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Rite
Aid #6257
0000 Xxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6322
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, XX 00000
Rite
Aid #6345
0000 X. Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Page 3 of 4
Other stores—Non Xxxxx County
Rite
Aid #6354
0000 X. Xxxxxx
Xxxxxx Xxxx, XX 00000
Rite
Aid #6364
000 Xxxx Xxxxxxxx Xxx.
Xxxxxx, XX 00000
Page 4 of 4
EXHIBIT 10.23
