EXHIBIT 10.20
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT ("Lease" or "Agreement") is made and entered
into on December 31, 1999, by and between PDS FINANCIAL CORPORATION-COLORADO, a
Colorado corporation ("PDS", "Lessor" or "First Party"), whose address is 0000
XxXxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000-0000 and RIVIERA BLACK HAWK, INC., a
Colorado corporation ("Lessee" or "Second Party"), whose addresses are 000 Xxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxx 00000 and 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxxx, XX 00000.
RECITALS
WHEREAS, First Party desires to lease to Second Party, and Second Party
desires to lease from First Party in accordance with the terms and conditions
contained herein, certain equipment more fully described in the Lease Schedule
or Schedules, referred to herein as a "Lease Schedule" or "Lease Schedules", as
may from time to time be executed by Second Party.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and conditions
set forth below and other good and valuable consideration, the receipt and
sufficiency of which all parties acknowledge, it is agreed as follows:
AGREEMENT
1. LEASE. This Lease establishes the general terms and conditions by which First
Party shall lease the Equipment (defined below) to Second Party. Each Lease
Schedule shall be in the form provided by First Party and shall incorporate by
reference the terms of this Lease. All equipment described in such Lease
Schedules shall be collectively referred to as the "Equipment" and individually
referred to as a "Unit" and is to be installed in and to be used in connection
with the business location described in the Certificate of Delivery,
Installation and Acceptance executed by Second Party in connection with a
particular Lease Schedule ("Premises").
2. TERM: RENT AND PAYMENT.
2.1. Term. The term of this Lease shall commence on the date set forth in each
Lease Schedule (the "Commencement Date") and continue as specified in such Lease
Schedule ("Term").
2.2. Rent and Payment. Second Party's obligation to pay rent
for the Equipment shall commence on the Commencement Date and continue for the
Term. The Basic Rent, as set forth and defined in the Lease Schedules, shall be
payable in such amount and on such date as set forth in the Lease Schedule. Any
amounts payable by Second Party, other than Basic Rent, shall be deemed
Additional Charges. Additional Charges shall be due and payable in accordance
with the terms of the Lease Schedule or if not set forth therein, on the Basic
Rent payment date following the date upon which the aforesaid Additional Charges
accrue, or the last day of the Term, whichever is earlier. Second Party shall
make all payments at the address of First Party set forth above or at such other
address as First Party may designate in writing. As used herein, the term "Rent"
shall mean all Basic Rent and Additional Charges as described in the Lease
Schedules.
2.3. Late Charge. If any Rent is not received by First Party or its assignees
within ten (10) days after written notice then a late charge on such Rent shall
be due and payable with such Rent in an amount equal to four percent (4%) of the
amount past due or any part thereof, as reimbursement for administrative costs
and not as a penalty.
2.4. ACH. Second Party shall complete, execute and deliver to First Party an
Authorization for Automatic Payment form authorizing First Party to initiate
variable entries to Second Party's checking or savings account at a specified
financial institution for the purpose of making payments to Second Party as
contemplated by this Lease and the Lease Schedules.
2.5. Additional Fees and Charges. Second Party further agrees to pay all of
First Party's out-of-pocket costs and expenses incurred by First Party (not to
exceed the lessor of $50,000.00 or 3% of the total Lease Schedule amount) in
connection with the closing of all transactions contemplated by this Lease,
without limitation: (a) the fees and costs of legal counsel utilized by First
Party (including in-house counsel); (b) all other out-of-pocket expenses
incurred by or on behalf of First Party; and (c) a $500.00 document preparation
fee for each Lease Schedule.
2.6. First Party's Performance of Second Party's Obligations. If Second Party
fails to comply with any of its covenants or obligations herein within 10 days
after written notice, First Party may, at its option, perform such covenants or
obligations on Second Party's behalf without thereby waiving such conditions or
obligations or the failure to comply therewith and all sums advanced by First
Party in connection therewith shall be repayable by Second Party as Additional
Charges. No such performance shall be deemed to relieve Second Party of its
obligations herein.
3. CERTIFICATE OF ACCEPTANCE. Second Party shall deliver to First Party a
Certificate of Delivery, Installation and Acceptance
("Certificate of Acceptance") in the form provided by the First Party.
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4. NET LEASE. Except as provided in Section 13 below and except as specifically
provided elsewhere herein this Lease including each Lease Schedule is a net
lease and Second Party's obligation to pay all Rent due and the rights of First
Party or its assignees in, and to, such Rent shall be absolute and unconditional
under all circumstances, notwithstanding: [i] any setoff, abatement, reduction,
counterclaim, recoupment, defense or other right which Second Party may have
against First Party, its assignees, the manufacturer or seller of any Unit, or
any other person for any reason whatsoever, including, without limitation, any
breach by First Party of this Lease; [ii] any defect in title, condition,
operation, fitness for use, or any damage to or destruction of, the Equipment
(except for Equipment which was provide by Lessor's Slot Source division); [iii]
any interruption or cessation of use or possession of the Equipment for any
reason whatsoever; or (iv) any insolvency, bankruptcy, reorganization or similar
proceedings instituted by or against Second Party.
5. LOCATION, USE, MAINTENANCE, IDENTIFICATION AND INSPECTION.
5.1. Location, Use, Maintenance and Repairs.
5.1.1. Second Party shall keep and use the Equipment on the Premises and shall
not relocate or remove any Unit without the prior, written consent of First
Party.
5.1.2. Second Party shall at all times and, at its sole cost and expense,
properly use and maintain the Equipment in good operating condition, other than
the normal wear and tear, and make all necessary repairs, alterations and
replacements thereto (collectively, "Repairs"), all of which shall immediately
become the property of First Party and subject to this Lease.
5.1.3. Second Party shall comply with manufacturer instructions relating to the
Equipment, and any applicable laws and governmental regulations.
5.1.4. Second Party shall pay all costs and expenses associated with removal
and return of the Equipment.
5.2. Identification and Inspection. Upon request by First Party, Second Party
shall xxxx each Unit conspicuously with appropriate labels or tags furnished by
First Party and maintain such markings through the Term to clearly disclose that
said Unit is being leased from First Party. Subject to Second Party's reasonable
security requirements, Second Party shall permit First Party's representatives
to enter the Premises where any Unit is located to inspect such Unit.
6. LOCATION: PROPERTY RIGHTS: LIENS AND ENCUMBRANCES.
6.1. Personal Property. Each Unit is personal property and Second Party shall
not affix any Unit to realty so as to change its nature to a fixture or real
property and agrees that each Unit shall remain personal property during the
Term. First Party expressly retains ownership and title to the Equipment. Second
Party hereby agrees that it shall be responsible for all of First Party's
obligations as required by the state gaming laws and regulations regarding
maintenance, use, possession and operation of the Equipment. Second Party hereby
authorizes, empowers, and grants a limited power of attorney to First Party to
record and/or execute and file, on Second Party's behalf, any certificates,
memorandums, statements, refiling, and continuations thereof as First Party
deems reasonably necessary or advisable to preserve and protect its interest
hereunder. The parties intend to create a lease agreement and the relationship
of lessor and lessee between themselves. Nothing in this Lease shall be
construed or interpreted to create or imply the existence of a finance lease or
installment lease contract. First Party makes no representation regarding the
treatment of this Lease, the Equipment or the payment of obligations under this
Lease for financial statement reporting or tax purposes.
6.2. Protection of First Party's Property Rights. First Party has the right to
place on each Unit, a medallion or other marker of suitable size stating in
substance [i] that the Equipment is the property of First Party, and [ii] that
First Party, to protect its rights, has filed or retains the right to file in
appropriate government offices a UCC Financing Statement covering the Equipment.
Second Party will cooperate with First Party in preparing, executing and filing
such UCC Financing Statements. Second Party hereby agrees that a copy of this
Lease or any Lease Schedule signed by the Second Party when attached to any
financing statement or similar instrument, the filing of which is necessary to
perfect a security interest, shall be deemed Second Party's signature on such
instrument.
6.3. Liens and Encumbrances. Unless otherwise provided herein, Second Party
shall not directly or indirectly create, incur or suffer a mortgage, claim,
lien, charge, encumbrance or the legal process of a creditor of Second Party of
any kind upon or against this Lease or any Unit. Second Party shall at all times
protect and defend, at its own cost and expense, the title of First Party from
and against such mortgages, claims, liens, charges, encumbrances and legal
processes of creditors of Second Party and shall keep all the Equipment free and
clear from all such claims, liens and legal processes. If any such lien or
encumbrance is incurred, Second Party shall immediately notify First Party and
shall take all actions required by First Party to remove the same.
7. RETURN OF EQUIPMENT.
7.1. Duty of Return. At the expiration of any Term or upon termination of the
Lease, Second Party at its expense shall return each Unit to First Party or its
designee at the First Party's distribution facility in Las Vegas, Nevada, in
accordance with appropriate gaming laws and regulations and the terms and
conditions of the Lease Schedule. Each Unit shall include all parts,
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accessories, attachments, etc. originally delivered to Second Party and shall
conform to all of the manufacturer's specifications and gaming laws and
regulations with respect to normal function, capability, design and condition
less normal wear and tear. The term "normal wear and tear" includes minor
scratches, dents, and chips to the exterior of the device and wear to the
interior components of the Unit that is consistent with components of comparably
aged machines. Upon return of the Unit, Second Party agrees to reimburse First
Party for the full retail cost of equipment that is non-functioning or missing
components including, but not limited to, components at the following indicated
reimbursement rate, (i) Door $400.00; (ii) Validator head $550.00; (iii)
Validator Can $245.00; (iv) Monitor $250.00; (v) Circuit Board $420.00; (vi)
Xxxxxx $350.00; (vii) Glass panels $300.00 each.
7.2. Failure to Return. If Second Party fails to return the Equipment or
any portion thereof, as provided above, within fourteen (14) days following
expiration of any Term or termination of the Lease, then Second Party shall pay
to First Party an additional month's Rent for each month, or any portion
thereof, that Second Party fails to comply with the terms of this return
provision, until all of the Equipment is returned, as provided herein.
8. RISK OF LOSS: INSURANCE.
8.1. Risk of Loss. Second Party shall bear the risk of all loss or damage to any
Unit or caused by any Unit during the period from the time the Unit is shipped
by First Party or the Unit's vendor until the time it is returned as provided
herein.
8.2. Unit Replacement. If any Unit is lost, stolen, destroyed, seized by
governmental action or, in Second Party's opinion or First Party's opinion,
damaged ("Event of Loss"), this Lease shall remain in full force and effect
without abatement of Rent and Second Party shall promptly replace such Unit at
its sole expense with a Unit of equivalent value and utility, and similar kind
and in substantially the same condition as the replaced Unit immediately prior
to the Event of Loss. Title to such replacement unit immediately shall vest and
remain in First Party, and such unit shall be deemed a Unit under this Lease.
Upon such vesting of title and provided Second Party is not in default under
this Lease, First Party shall cause to be paid to Second Party or the vendor of
the replacement unit any insurance proceeds actually received by First Party for
the replacement Unit. Second Party shall promptly notify First Party of any
Event of Loss and shall provide First Party with and shall enter into, execute
and deliver such documentation, as First Party shall request with respect to the
replacement of any such Unit.
8.3. Insurance.
8.3.1. Second Party shall obtain and maintain in full force and effect the
following insurance: [i] all risk, full replacement cost damage insurance on the
Premises; [ii] commercial general liability insurance; [iii] all risk, full
replacement cost property damage insurance on the Equipment (in no event less
than the outstanding balance of the obligations hereunder), and [iv] workers
compensation insurance.
8.3.2. Such insurance shall: [i] name First Party, its parents, subsidiaries,
affiliates and assignees, as additional insureds and as first loss payees as
their interests may appear (general liability and property only); [ii] provide a
waiver of subrogation to First Party (workers compensation only); and [iii]
provide that the POLICY MAY NOT BE CANCELED OR MATERIALLY ALTERED WITHOUT THIRTY
(30) DAYS PRIOR WRITTEN NOTICE TO LESSOR.
8.3.3. In the event the Equipment includes automobiles, trucks, boats or other
vehicles, Second Party shall obtain and maintain in full force and effect
commercial liability coverage in an amount not less than $1,000,000.00 combined
single limit. Such insurance shall: [i] name First Party, its parents,
subsidiaries, affiliates and assignees, as additional insureds and first loss
payees as their interests may appear; and [ii] provide that the policy may not
be canceled or materially altered without thirty (30) days prior written notice
to First Party.
8.3.4. All such insurance required herein shall be placed with companies having
a rating of at least A, Class XII or better by Best's rating service. Second
Party shall maintain the insurance throughout the contract period and furnish to
First Party until the payment in full of any obligations herein, insurance
certificates of a kind satisfactory to First Party showing the existence of the
insurance required hereunder and premium paid.
9. LESSOR'S PURCHASE AND PERFORMANCE. Upon receipt of a Lease Schedule executed
and delivered by Second Party, Second Party shall bear all responsibilities and
perform all obligations of First Party, which may arise as a result of any
document or agreement between First Party and a vendor in connection with the
Equipment to be leased under said Lease Schedule, other than payment of the
purchase price.
10. TAXES.
10.1. Taxes. Second Party agrees to report, file, pay promptly when due to the
appropriate taxing authority and indemnify, defend, and hold First Party
harmless from and against any and all taxes (including gross receipts),
assessments, license fees and other federal, state or local governmental charges
of any kind or nature, together with any penalties, interest or fines related
thereto (collectively, "Taxes") that pertain to the Equipment, its purchase, or
this Lease, except such Taxes based solely upon the net income of First Party,
including, but not necessarily limited to all property, sales and/or use taxes
levied or assessed regardless of whether such taxes are levied or assessed
against First Party or Second Party.
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10.2. First Party's Filing of Taxes. Notwithstanding the foregoing, First Party
at its election may report and file sales and/or use taxes, which are filed and
paid periodically through the Term, and the amounts so due may be invoiced to
Second Party and payable as specified therein.
11. INDEMNIFICATION.
11.1. Except for the negligence of First Party, its employees or agents and
assigns, Second Party hereby assumes liability for and agrees to indemnify,
defend, protect, save and hold harmless the First Party, its agents, employees,
directors and assignees from and against any and all losses, damages, injuries,
claims, administration of claims, penalties, demands and all expenses, legal or
otherwise (including reasonable attorneys' fees) of whatever kind and nature
arising from the purchase, ownership, use, condition, operation or maintenance
of the Equipment, or any agreement between First Party and a vendor (including
purchase or sales orders), until the Equipment is returned to First Party to the
extent First Party's loss is not covered by insurance. Any claim, defense,
setoff, or other right of Second Party against any such indemnified party shall
not in any way affect, limit, or diminish Second Party's indemnity obligations
hereunder. Second Party shall notify First Party immediately as to any claim,
suit, action, damage, or injury related to the Equipment of which Second Party
has actual or other notice and shall, at its own cost and expense, defend any
and all suits, including frivolous suits and claims, which may be brought
against First Party, shall satisfy, pay and discharge any and all judgments and
fines that may be recovered against First Party in any such action or actions,
provided, however, that First Party shall give Second Party written notice of
any such claim or demand. Second Party agrees that its obligations under this
section shall survive the expiration or termination of this Lease.
11.2. First Party hereby covenants and agrees to indemnify, defend, save and
hold Second Party, it's parent companies, subsidiaries, affiliates, successors,
heirs and assigns, and their directors, officers, shareholders and employees,
free, clear and harmless from and against any and all liabilities, losses,
costs, expenses (including reasonable attorneys' fees), damages, actions, suits,
debts, judgments, claims, administration of claims, liens, demands and
obligations of any and kind, nature, character and description, known or
unknown, accrued or not yet accrued, whether anticipated or unanticipated caused
by, resulting from, or in any way connected with First Party's negligent acts,
or negligent acts of First Party's agents or employees, in connection with this
Agreement.
12. REPRESENTATIONS AND WARRANTIES. Second Party hereby represents and warrants
to First Party that:
12.1. It is an entity duly organized, validly existing andin good standing
under the laws of the state of its formation;
12.2. Second Party's true legal name is as set forth in the preamble hereto and
that is shall not change its name without thirty (30) days' written notice
to First Party;
12.3. It has the corporate power and authority to execute, deliver and perform
this Agreement and other instruments and documents required or contemplated
herein;
12.4. To the best of Lessee's knowledge, the execution, delivery and
performance of this Agreement has been duly authorized by all necessary action
on the part of the corporation, do not and will not require the approval of the
shareholders of the corporation and do not and will not contravene the
Certificate of Incorporation or by-laws of the corporation, and to the best of
Lessee's knowledge does not constitute a default of any indenture, contract,
agreement, mortgage, deed of trust, document or instrument to which Second Party
is a party or by which Second Party is bound;
12.5. The person(s) executing this Agreement on behalf of Second Party has or
have been properly authorized to execute the same;
12.6. To the best of Lessee's knowledge, with reasonable due diligence, it
has obtained, maintains, and will maintain, on an active and current basis, all
licenses, permits, registrations, approvals and other authority as may be
required from any applicable federal, state, tribal and local governments and
agencies having jurisdiction over it and the subject matter of this Agreement;
12.7. To the best of Lessee's knowledge, there are no suits, actions,
proceedings or investigations pending or threatened or any basis therefore which
might materially or adversely affect the condition, business or prospects of it
or affect the ability of it to perform its obligations under this Agreement or
have a material adverse effect upon the financial condition of it or the
validity or enforceability of this Agreement;
12.8. It is not currently the subject of any pending or threatened bankruptcy
or insolvency proceeding;
12.9. As of the date hereof, it's obligations under this Agreement are not
subject to any defense, set off or counterclaim;
12.10. This Agreement constitutes a valid binding agreement and is
enforceable in accordance with its terms, except to the extent that enforcement
of any remedies may be limited by applicable bankruptcy, insolvency, general
principles of equity or other similar laws affecting generally the enforcement
of creditor's remedies;
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12.11. There have been no amendments, modifications, waivers or releases
with respect to this Agreement or any provisions hereof, whether oral or written
prior to execution hereof;
12.12. The location of Second Party's primary place of business is set
forth herein and will not be changed without thirty (30) days' prior written
notice to First Party;
12.13. Second Party is, and shall remain at all times during the Term, in
compliance with all covenants (specifically including financial covenants) and
conditions of that $45,000,000.00 Indenture for 13% First Mortgage Notes due
2005 issued by Second Party on or about May 27, 1999 (the "Indenture"), which
are hereby incorporated into this Lease by this reference; and
No further order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any
governmental, regulatory or public or tribal body or authority is required in
connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of this Agreement.
13. WARRANTY: DISCLAIMERS AND LIMITATIONS OF LIABILITY REGARDING EQUIPMENT.
13.1. Each Unit subject to this Lease or any Lease Schedule is leased in a
functional condition. First Party warrants that for a period of thirty (30) days
following delivery, the new, custom reconditioned, Quick Ship, Fast Track and/or
functional gaming devices or equipment leased in any Lease Schedule will be
mechanically sound and in good working order ("Warranty Period"). Second Party's
sole and exclusive remedy in the event of defect is expressly limited to the
restoration of the Unit to good working condition by adjustment, repair or
replacement of defective parts, at Second Party's election. There are no other
warranties, express or implied, including, but not limited to, warranties of
merchantability or fitness for a particular purpose. No affirmation of fact,
including, but not limited to, statements regarding suitability for use or
performance of the Equipment shall be deemed to be a warranty of First Party for
any purpose.
13.2. The Second Party will bear the cost of returning any defective Unit to
First Party, including shipping and reasonable packaging. First Party will bear
the cost of returning the repaired or replacement Unit to the Second Party,
including shipping and reasonable packaging. If any Unit provided by First
Party's Slot Source Division is delivered to Second Party in a defective
condition, First Party will bear the cost of retrieving the repaired or
replacement Unit from the Second Party and returning such Unit to Second Party,
including shipping and reasonable packaging. Repair of damage caused by the
Second Party's negligence or intent, or damage caused by third parties is the
responsibility of the Second Party and shall in no event be the responsibility
of First Party. First Party shall not be responsible or liable for any revenues
foregone by the Second Party, while a Unit not functioning properly. First Party
shall also not be responsible or liable for any losses, damages, injuries,
claims, penalties, demands and all expenses, legal or otherwise (including
reasonable attorneys' fees) of whatever kind and nature arising from any patron
disputes involving the Equipment. The liability of First Party and the
manufacturer of any Unit leased hereunder, whether in contract, in tort, under
warranty, in negligence or otherwise, shall not exceed the fair market value of
the Unit itself and under no circumstances shall First Party or the manufacturer
of any Unit be liable for direct, special, indirect, or consequential damages.
Neither First Party nor any manufacturer of any Unit shall be liable in any
respect for the acceptance of counterfeit and/or fraudulent materials (i.e.
tokens, coins, bills, etc.) by the Equipment. Any unauthorized modification,
alteration, or revision of all or any portion of the Equipment shall cause the
warranty described above to be null and void. First Party, its affiliates,
subsidiaries, representatives, and agents make no other warranty, express or
implied. IN NO EVENT SHALL LESSOR BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, ARISING OUT
OF THIS LEASE OR ANY LEASE SCHEDULE REGARDLESS OF THE NATURE OF ANY CLAIM MADE
BY LESSEE.
14. ASSIGNMENT OF LEASE.
14.1. Assignment by First Party. Second Party acknowledges and agrees that First
Party may assign, mortgage, or otherwise transfer its interest thereunder and/or
in the Equipment to others ("Assignees") without any consent of Second Party,
provided however all such Assignees must be acceptable to all gaming authorities
with any jurisdiction over these matters and that Second Party shall be notified
of any assignment. Accordingly, Second Party and First Party agree that upon
such assignment, Second Party (i) shall acknowledge such assignment in writing
by executing a Notice, Consent and Acknowledgment of Assignment furnished by
First Party; (ii) shall promptly pay all Rent when due to the designated
Assignees, notwithstanding any defense, setoff, abatement, recoupment, reduction
or counterclaim whatsoever that Second Party may have against First Party; (iii)
shall not permit the Lease or Lease Schedule so assigned to be amended or the
terms thereof waived without the prior written consent of the Assignees; (iv)
shall not require the Assignees to perform any obligations of First Party under
such Lease Schedule; (v) shall not terminate or attempt to terminate the Lease
or Lease Schedule on account of any default by First Party; and (vi)
acknowledges that any Assignee may reassign its rights and interest with the
same force and effect as the assignment described herein.
14.2. Assignment or Sublease by Second Party. Second Party shall not assign this
Lease or any Lease Schedule or assign its rights in or sublet the Equipment, or
any interest therein without First Party's and its Assignee's prior written
consent.
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15. FINANCIAL INFORMATION; FURTHER ASSURANCES.
15.1. Financial Information. Throughout the Term, Second Party shall deliver to
First Party copies of all current financial information of Second Party, which
will reflect the financial condition and operations of Second Party as well as
such other information regarding Second Party reasonably requested by First
Party or its Assignees.
15.2. Further Assurances. Second Party shall execute and deliver to First Party,
such other documents, and take such further action as First Party may request in
order to effectively carry out the intent and purposes of this Lease and the
Lease Schedules. All documentation shall be in a form acceptable to First Party
and its Assignees.
15.3. Lease Agreement. If any court of competent jurisdiction should determine
that this Lease constitutes a security arrangement as opposed to a true lease,
the parties then agree that this Lease shall constitute a security agreement
within the meaning of the Uniform Commercial Code and that the First Party shall
be considered a secured party under the provisions thereof and shall be entitled
to all the rights and remedies of a secured party and Second Party, as debtor,
grants to First Party, as secured party, a security interest in the Equipment;
provided nothing herein shall be construed nor shall the inclusion of this
paragraph be interpreted as derogating from the stated intent and contractual
understanding of the parties that this is a true lease.
16. DEFAULT BY SECOND PARTY. Second Party shall be deemed in default under this
Agreement upon the occurrence of any one of the following events ("Event of
Default"):
16.1. Failure to make any payment due under this Agreement within ten
(10) days after written notice;
16.2. Second Party's cancellation, termination, alteration, or rescission
of the Authorization for Automatic Payment without the prior approval of First
Party;
16.3. Failure to perform any other obligation under this Agreement within
thirty (30) days after receipt of written notice of default and failure to cure;
provided, however, that no notice shall be required where a breach or threatened
breach would cause irreparable harm to First Party and First Party may
immediately seek equitable relief in a court of competent jurisdiction to enjoin
such breach;
16.4. Second Party shall fail to pay its
debts as they become due, shall make an assignment for the benefit of its
creditors, shall admit in writing its inability to pay its debts as they become
due, shall file a petition under any chapter of the Federal Bankruptcy Code or
any similar law, state or federal, now or hereafter existing, shall become
"insolvent" as that term is generally defined under the Federal Bankruptcy Code,
shall in any involuntary bankruptcy case commenced against it file an answer
admitting insolvency or inability to pay its debts as they become due, or shall
fail to obtain a dismissal of such case within one hundred twenty (120) days
after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in
such bankruptcy case, or be adjudged a bankrupt or insolvent, or shall have a
custodian, trustee or receiver appointed for, or have any court take
jurisdiction of its property, or any part thereof, in any proceeding for the
purpose of reorganization, arrangement, dissolution or liquidation, and such
custodian, trustee or receiver shall not be discharged, or such jurisdiction
shall not be relinquished, vacated or stayed within sixty (60) days of the
appointment;
16.5. Second Party shall be dissolved, liquidated or wound up or is
enjoined, restrained, fails or is in any way prevented from maintaining its
existence as a going concern in good standing (excepting, however,
reorganizations, consolidations and/or mergers into or with affiliates owned by,
owning or under common control of or with such entity or into the parent of such
entity, provided the succeeding organization assumes and accepts such entity's
obligation hereunder);
16.6. Second Party attempts to remove, sell, transfer, encumber, part with
possession or sublet the Equipment or any unit thereof without the prior written
consent of First Party;
16.7. Second Party materially defaults (in excess of $1,000,000.00) under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced, any indebtedness of Second Party for
money borrowed, whether such indebtedness now exists or shall be created
hereafter, which material default (monetary or otherwise) is not cured within
(30) days;
16.8. Any unit of the Equipment is lost, stolen or destroyed and not
replaced within a reasonable time with items of similar utility and value
subject to availability;
16.9. Any unit of the Equipment is attached, levied upon, encumbered,
pledged, or seized under any judicial process, which has not been bonded over,
removed, or other satisfactory assurances given to First Party within fifteen
(15) days of written notice;
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16.10. Any warranty or representation made or furnished to First Party by
or on behalf of Second Party is false or misleading in any material respect when
made or furnished and is not cured within sixty (60) days of written notice;
16.11. Failure of Second Party to maintain in full force and effect the
licenses, permits and certifications that may be required under any applicable
gaming laws for the operation of Second Party 's business, which failure is not
remedied to the satisfaction of applicable gaming authorities within fifteen
(15) days of written notice;
16.12. The revocation of any gaming license of Second Party;
16.13. The denial of any gaming license application of Second
Party (but not as to individual applicants);
16.14. Failure of Second Party to comply materially with all gaming statutes
and regulations;
16.15. Failure of Second Party to maintain the insurance required by this
Agreement, which failure has not been cured within three (3) business days of
written notice;
16.16.Except as permitted under Section 14.2 above, any other sale, change in
control or any transfer of a majority of Second Party 's business or assets;
and/or
16.17. If a material event of default (defined as a default in any transaction
in excess of $1,000,000) occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness of Second Party for money borrowed, whether such indebtedness
now exists or shall be created hereafter, which event of default is not cured
within thirty (30) days or, in the event of a non-monetary default, within such
reasonable period of time as may be agreed upon by the parties hereto.
17. FIRST PARTY REMEDIES.
17.1. Second Party acknowledges that the enforcement of this Agreement may
require approval of certain regulatory authorities and copies of all Default
Notices, legal proceedings, etc. will be forwarded to the appropriate agency as
required by state law or regulation. Second Party further acknowledges that upon
any Event of Default, and at any time thereafter, First Party, may in addition
to any and all rights and remedies it may have at law or in equity, without
notice to or demand upon any party to this Agreement and at its sole option:
17.1.1. Declare all amounts remaining unpaid under this Agreement immediately
due and payable and interest shall accrue on any outstanding balance due First
Party at a rate of 1.5% per month, which is 18% per annum, until paid in full;
17.1.2. Proceed by appropriate court action or other proceeding, either at law
or in equity to enforce performance by Second Party of any and all covenants of
this Agreement;
17.1.3. Enter onto Second Party's premises in person or by agentand take
possession of the Equipment;
17.1.4. Require Second Party to return the Equipment, at Second Party's
expense, to a place designated by First Party;
17.1.5. Render the Equipment unusable in such manner as is reasonable under the
circumstances;
17.1.6. Dispose of the Equipment, as First Party in the good faith exercise
of its discretion deems necessary or appropriate;
17.1.7. Without demand, advertisement or notice of any kind (except such
notice as may be required under the Uniform Commercial Code, if applicable, and
all of which are, to the extent permitted by law, hereby expressly waived),
sell, resell, lease, re-lease or dispose of the Equipment in any manner;
17.1.8. If not already the property of First Party, purchase the Equipment
at public sale with credit on any amounts owed;
17.1.9. If not already the property of First Party, purchase the Equipment at
private sale for a price and on such terms as is determined by an independent
appraiser appointed by First Party to be the price and terms at which a willing
seller would be ready to sell to an able buyer;
17.1.10. Proceed immediately to exercise each and all of the powers, rights,
and privileges reserved or granted to First Party under this Agreement;
17.1.11. Subject to applicable and appropriate gaming laws, rules, laws and
regulations, and required approvals, take possession, sell and/or re-lease any
unit of the Equipment as First Party may desire, in its sole discretion without
demand or notice, wherever the same may be located, without any court order or
pre-taking hearing, any and all damages occasioned by such retaking being
specifically waived herein by Second Party;
7
17.1.12. Take control of any and all proceeds to which Second Party is entitled;
17.1.13. Exercise any other remedies available to a First Party under the
Uniform Commercial Code, if applicable;
17.1.14. Immediately seek equitable relief in a court of competent
jurisdiction to enjoin a breach of this Agreement where said breach or
threatened breach would cause irreparable harm to First Party; and/or
17.1.15. Exercise any other rights or remedies provided or available to
First Party at law or in equity.
17.2. No waiver by First Party, its affiliates, successors or assigns, of any
default, including, but not limited to, acceptance of late payment after the
same is due, shall operate as a waiver of any other default or of the same
default on a future occasion. In the Event of Default, First Party shall be
entitled to recover all costs, expenses, losses, damages and legal costs
(including reasonable attorneys' fees) incurred by First Party in connection
with the enforcement of First Party's remedies. All rights and remedies of First
Party are cumulative and are in addition to any other remedies provided for at
law or in equity, including the Uniform Commercial Code, if applicable, and may,
to the extent permitted by law, be exercised concurrently or separately. A
termination hereunder shall occur only upon written notice by First Party to
Second Party and no repossession or other act by First Party after default shall
relieve Second Party from any of its obligations to First Party hereunder unless
First Party so notifies Second Party in writing.
17.3. In the event of a default by Second Party, First Party may, at its
option, declare this Agreement terminated without further liability or
obligation to the defaulting party.
17.4. Article 2A Waivers. In the event that Article 2A of the Uniform
Commercial Code is adopted under applicable law and applies to this Lease, then
Second Party, to the extent permitted by law, waives any and all rights and
remedies conferred upon a lessee by Sections 2A-508 through 2A-522 of such
Article 2A, including, but not limited to, Second Party's rights to: (i) cancel
or repudiate this Lease; (ii) reject or revoke acceptance of the Equipment;
(iii) claim, grant or permit a security interest in the Equipment in Second
Party's possession or control for any reason; (iv) deduct from Rent all or any
part of any claimed damages resulting from First Party's default, if any, under
this Lease; (v) accept partial delivery of the Equipment; (vi) "cover" by making
any purchase or lease of or contract to purchase or lease equipment in
substitution for Equipment designated in this Lease; and (vii) obtain specific
performance, replevin, detinue, sequestration, claim and delivery or the like
for any Equipment identified to this Lease. To the extent permitted by
applicable law, Second Party also hereby waives any rights now or hereafter
conferred by statute or otherwise which may require First Party to sell, lease
or otherwise use any Equipment in mitigation of First Party's damages or which
may otherwise limit or modify any of First Party's rights or remedies,
including, without limitation, any limit on the determination of the amount of
First Party's Loss provided in Article 2A of the Uniform Commercial Code.
18. SECOND PARTY'S REMEDIES. In the event of any default by Lessor hereunder,
which is not cured within 30 days of notice after written notice, Lessee shall
have the following rights and remedies:
18.1. The right to take such action or steps as are necessary to cure Lessor's
defaults, which have not been cured within 30 days notice (except in the
event of an emergency); and
18.2. All rights and remedies available in equity or at law.
19. COMPLIANCE WITH GOVERNMENTAL AGENCIES.
19.1. All services furnished hereunder shall comply with the requirements of all
governmental authorities having jurisdiction (the "Authorities"). The terms and
conditions of the Lease or any Lease Schedule shall be conditioned upon approval
by the Authorities, if such is required. It is understood that, if at any time
either prior to or subsequent to the initial starting date of the Lease or any
Lease Schedule, the Authorities shall render a final determination either
disapproving the terms and conditions of the Lease or any Lease Schedule or
denying the application of First Party for a gaming license, vendor registration
or casino service supplier, or if First Party already has such a license, the
qualifications of First Party that then, in either of such events, the Lease or
any lease schedule shall be deemed terminated, as of the date of such
disapproval or denial, as though such date were the date originally fixed herein
for the notice of termination of the Lease or any lease schedule.
19.2. If the Lease or any lease schedule is so terminated, then Second
Party shall tender payment to First Party of (i) any amounts then due and owing
under the Lease and any lease schedule, including but not limited to such items
as rent, late charges, and taxes paid by or assessed upon First Party, and (ii)
the amount equal to the Termination Value, as defined below, and First Party
shall transfer title to the Equipment to Second Party and in that event the
parties hereto shall have no further liability to each other. Second Party
agrees to comply with all requirements of every governmental authority, which
has jurisdiction over the Lease or any lease schedule and over Second Party.
Termination Value shall be defined as the net present value of the remaining
rentals due, including the purchase option amount, discounted at the original
all-in yield, for each lease schedule.
8
20. WAIVER OF JURY TRIAL. The parties hereby knowingly and voluntarily waive
their right to a jury trial on any claim or cause of action based upon or
arising out of, directly or indirectly, this Lease or any Lease Schedules, any
dealings between the parties relating to the subject matter hereof or thereof,
and/or the relationship that is being established between the parties. The scope
of this waiver is intended to be all encompassing of any and all disputes that
may be filed in any court (including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims).
This waiver may not be modified orally, and the waiver shall apply to any
subsequent amendment, renewals, supplement or modifications to this Agreement or
the loan agreements. In the event of litigation, this Lease may be filed as a
written consent to a trial by the court.
21. MISCELLANEOUS.
21.1. Amendments or Modifications. This Lease shall not be modified or
amended except by an instrument in writing signed by or on behalf of the
parties hereto.
21.2. Binding Effect. This Lease shall be binding upon and inure to the
benefit of the parties and their respective, permitted successors, heirs,
executors, administrators, assigns, and all persons claiming by, through or
under them.
21.3. Captions, Headings and Titles. The captions, headings and titles of the
various sections of this Lease are for convenience only and are not to be
construed as confining or limiting in any way the scope or intent of the parties
or the provisions hereof. Whenever the context requires or permits, the singular
shall include the plural, the plural shall include the singular and the
masculine, feminine and neuter shall be freely interchangeable.
21.4. Compliance with All Laws. The Second Party shall not to violate any law or
regulation including, without limitation, any gaming law or regulation or to
engage in any act or omission which tends to bring discredit upon the gaming
industry or otherwise jeopardizes the other party's ability to engage in
business with businesses licensed by any applicable regulatory authorities.
First Party shall use its good faith judgment in determining whether any such
violation, act or omission of Second Party or its directors, officers or
managers, if any, places First Party's business or licenses at risk and upon
such determination First Party shall have the right to immediately terminate
this Lease or any Lease Schedule without further liability to Second Party.
21.5. Conduct. Second Party acknowledges that First Party, its subsidiaries and
affiliates, have a positive reputation in the finance and gaming industry and
that First Party and its subsidiaries and affiliates are subject to regulation
and licensing and desire to maintain their reputation and receive positive
publicity. Second Party therefore agrees that throughout the Term, Second
Party`s directors, officers and managers will not conduct themselves in a manner
which is contrary to the best interests of, nor in any manner that adversely
affects or is detrimental to, First Party, its subsidiaries or affiliates, and
will not directly or indirectly make any oral, written or recorded private or
public statement or comment that is disparaging, critical, defamatory or
otherwise not in the best interests of PDS or its subsidiaries or affiliates.
First Party shall use its good faith business judgment in determining whether
the conduct of Second Party`s directors, officers or managers adversely affects
PDS, its subsidiaries or affiliates, and upon such determination PDS shall have
the right to immediately terminate this Lease or any Lease Schedules without
further liability to Second Party.
21.6. Confidentiality.
21.6.1. Second Party shall not disclose information relating to the operations
of PDS, its affiliates or subsidiaries, to persons other than the management of
PDS or to those governmental or regulatory authorities having competent
jurisdiction over PDS or it's business, unless PDS shall have given prior
written consent for the release of such information. PDS may require Second
Party to execute a nondisclosure agreement in connection with this Agreement and
Second Party, if so requested by PDS, agrees to execute the same.
21.6.2. PDS and its employees shall keep all statistical, financial,
confidential, and/or personal data requested, received, stored or viewed by PDS
in connection with this Agreement in the strictest confidence. PDS agrees not to
divulge to third parties, without the written consent of Second Party, any such
information unless: [i] the information is known to PDS prior to obtaining the
same; [ii] the information is, at the time of disclosure by PDS, then in the
public domain; [iii] the information is obtained by PDS from a third party who
did not receive same, directly or indirectly from Second Party and who has no
obligation of secrecy with respect thereto; or [iv] the information is requested
by and divulged to a governmental or regulatory authority having competent
jurisdiction over PDS or it's business. PDS further agrees that it will not,
without the prior written consent of Second Party, disclose to any third party
any information developed or obtained by PDS in the performance of this
Agreement except to the extent that such information falls within one of the
categories described above.
21.7. Counterparts. This Lease may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts together shall constitute but one and the
same document.
9
21.8. Effective Only Upon Execution by Authorized Officer. Neither this Lease
nor any Lease Schedule shall be deemed to constitute an offer or be binding upon
First Party until executed by First Party's authorized officer. No
representations made by any First Party's salespersons or anyone else shall be
binding unless incorporated herein in writing. 21.9. Entire Agreement. This
Lease along with any Lease Schedules and related instruments executed in
connection therewith constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
promises, negotiations, representations or understandings, whether written or
oral, between the parties hereto relating to the subject matter of this Lease or
any Lease Schedules. Any prior agreements, promises, negotiations,
representations or understandings, either oral or written, not expressly set
forth in this Lease, any Lease Schedule, or related instruments executed in
connection therewith shall no force or effect.
21.10. Further Assurances. The parties further covenant and agree to do, execute
and deliver, or cause to be done, executed and delivered, and covenant and agree
to use their best efforts to cause their successors and assigns to do, execute
and deliver, or cause to be done, executed and delivered, all such further acts,
transfers and assurances, for implementing the intention of the parties under
this Agreement, as the parties reasonably shall request. The parties agree to
execute any additional instruments or agreements necessary to effect the intent
of this Lease.
21.11. Governing Law.
21.11.1. The substantive and procedural laws of the State of Colorado shall
govern the validity, construction, interpretation, performance and enforcement
of this Agreement and the parties agree to jurisdiction in Colorado. The parties
also hereby agree that any action and/or proceeding in connection with this
Agreement shall only be brought in the venue of Xxxxxx County, Colorado.
21.11.2. In the event that Second Party is an Indian Tribe as defined by the
Indian Gaming Regulatory Act, 25 U.S.C. ss.2701 et seq. or a sovereign nation,
the parties agree that the immediate section above shall be null and void and
Second Party hereby grants a limited waiver of its Sovereign Immunity, for the
sole benefit of First Party, such waiver being limited to actions or claims by
First Party against Second Party, or by Second Party against First Party, which
shall arise directly from, or are related to, this Agreement. Any action brought
by or against First Party may be brought only in the United States District
Court most near Second Party`s primary place of business. The law to be applied
by said United States District Court in any such action shall be the law of the
State of Nevada, including the Uniform Commercial Code, as adopted by the State
of Nevada, without reference to any Nevada choice of law provisions.
21.11.3. Without in any way limiting the generality of the foregoing, Second
Party expressly authorizes any governmental or other agency authorities who have
the right and duty under applicable law to take any and all action authorized or
ordered by any court, including without limitation, entering the land of Second
Party and repossessing the Equipment or otherwise giving effect to any judgment
entered. It is the intent of the parties that First Party will be able to obtain
possession of the Equipment in accordance with the rights afforded it under
applicable laws and/or any court order.
21.12. Governmental Regulations. Notwithstanding anything in this Lease or any
Lease Schedule to the contrary, in the event any federal, state, local or other
governmental body's statutes, laws, rules, or regulations are
enacted/promulgated, the impact of which will materially impact the methods
and/or costs of First Party under this Lease or any Lease Schedule, then, in
that event, First Party, upon written notice to Second Party, may request a
renegotiation of this Lease or any Lease Schedule. Any modifications to this
Lease or any Lease Schedule resulting from such renegotiation shall become
effective on the latest date as permitted by the governmental body. In the event
the parties are unable to reach a satisfactory agreement during said
renegotiations, First Party shall have the right to cancel the Lease or any
Lease Schedule at any time by not less than sixty (60) days prior written notice
to Second Party, whereupon the Lease and/or Lease Schedule shall be null and
void.
21.13. Independence of Parties. All persons hired or employed by each party in
the discharge of this Lease shall be considered employees of that party and not
of any other party to this Lease and shall be solely and exclusively under the
hiring or employing party's direction and control. Neither party nor any of its
employees [i] shall be held or deemed in any way to be an agent, employee or
official of the other party, or [ii] shall have the authority to bind the other
party in any manner whatsoever. Each party further agrees to have all persons
employed by it properly covered by worker's compensation or employer's liability
insurance, as required by law and to assume and pay at its own cost all taxes
and contributions required by an employer under any and all unemployment
insurance, old age pensions, and other applicable so-called Social Security
Acts.
21.14. Intellectual Property Rights not conveyed. Nothing in this Lease shall be
construed as to grant or convey to Second Party any right, title or interest in
and to any intellectual property rights (including software, patent, copyright
and/or trademark) to any part of the Equipment.
21.15. Lease Irrevocable. This Lease is irrevocable for the full Term hereof and
the Rent shall not xxxxx by reason of termination of Second Party's right of
possession and/or the taking of possession by the First Party or for any other
reason.
10
21.16. License and Permits. Each party shall obtain and maintain on an
active and current basis, all licenses, permits, registrations, approvals and
other authority as may be required from any applicable federal, state, tribal
and local governments and agencies having jurisdiction over the subject matter
of this Lease and any Lease Schedule.
21.17. Multiple Second Parties. If more than one Second Party is named in this
Lease or a Lease Schedule the liability of each shall be joint and several.
21.18. No Joint Venture, Partnership or Agency Relationship. Neither this Lease
nor any Lease Schedule shall create any joint venture or partnership between the
parties. Nothing contained in this Lease and any Lease Schedule shall confer
upon either party any proprietary interest in, or subject a party to any
liability for or in respect of the business, assets, profits, losses or
obligations of the other. Nothing herein contained shall be read or construed so
as to make the parties a partnership, nor shall anything contained herein be
read or construed in any way to restrict the freedom of either party to conduct
any business or activity whatsoever without any accountability to the other
party. Neither party shall be considered to be an agent or representative of the
other party or have any authority or power to act for or undertake any
obligation on behalf of the other party except as expressly authorized by the
other party in writing. Any such unauthorized representation or action shall be
considered a breach of this Lease and any Lease Schedule.
21.19. Nondiscrimination. Neither party shall discriminate against any person on
the basis of race, color, sex, national origin, disability, age, religion,
handicapping condition (including AIDS or AIDS related conditions), or any other
class protected by United States federal law or regulation.
21.20. Non-Party Beneficiaries. Nothing herein, whether express or implied shall
be construed to give any person other than the parties, and their successors and
permitted assigns, any legal or equitable right, remedy of claim under or in
respect of this Lease and any Lease Schedule; but this Lease and any Lease
Schedule shall be held to be for the sole and exclusive benefit of the parties,
and their successors and assigns.
21.21. Notices. Except as otherwise required by law, all notices required herein
shall be in writing and sent by prepaid certified mail or by courier, addressed
to the party at the address or addresses of the party specified herein or such
other address designated in writing. Notices are deemed to have been received
[i] on the fourth business day following posting thereof in the U.S. Mail,
properly addressed and postage prepaid, [ii] when received in any medium if
confirmed or receipted for in the manner customary in the medium employed, or
[iii] if acknowledged in any manner by the party to whom the communication is
directed.
21.22. Privileged Licenses.
21.22.1. Second Party acknowledges that First Party, its parent company,
subsidiaries and affiliates, are businesses that are or may be subject to and
exist because of privileged licenses issued by governmental authorities. If
requested to do so by First Party, Second Party, and its agents, employees and
subcontractors, shall obtain any license, qualification, clearance or the like
which shall be requested or required of any of them by First Party or any
regulatory authority having jurisdiction over First Party or any parent company,
subsidiary or affiliate of First Party. If Second Party, or its agents,
employees, or subcontractors, fails to satisfy such requirement or if First
Party or any parent company, subsidiary or affiliate of First Party is directed
to cease business with Second Party or its agents, employees or subcontractors
by any such authority, or if First Party shall in good faith determine, in First
Party's sole and exclusive judgment, that Second Party, or any of its agents,
employees, subcontractors, or representatives [i] is or might be engaged in, or
is about to be engaged in, any activity or activities, or [ii] was or is
involved in any relationship, either of which could or does jeopardize First
Party's business or such licenses, or those of a parent company, subsidiary or
affiliate, or if any such license is threatened to be, or is, denied, curtailed,
suspended or revoked, this Lease and any Lease Schedule may be immediately
terminated by First Party without further liability to Second Party.
21.22.2. Second Party further acknowledges its understanding that it is
illegal for a denied gaming license applicant or a revoked gaming licensee, or a
business entity under such a person's control, to enter or attempt to enter into
a contract with First Party, its parent company, subsidiaries or any affiliate,
without the prior approval of the Nevada Gaming Commission or other applicable
gaming authorities. Second Party affirms that it is not such a person or entity
and that it is not under the control of such a person; and agrees that this
Lease and any Lease Schedule is subject to immediate termination by First Party,
without further liability to Second Party, if Second Party is or becomes such a
person or entity or is under the control of such a person.
21.23. Pronouns.Masculine or feminine pronouns shall be substituted for the
neuter form and vice versa, and the plural shall be substituted for the singular
form and vice versa, in any place or places herein in which the context requires
such substitution or substitutions.
11
21.24. Regulatory Approvals. Certain transactions contemplated by this Lease and
any Lease Schedule may require the approval of governmental regulatory
authorities. Those transactions are entirely conditional upon and subject to the
prior approval of such authority. If the transactions are not so approved, they
shall be null and void ab initio. The parties shall cooperate with one another
and move promptly with due diligence and in good faith to request any required
or appropriate regulatory approvals. If the action or inaction of any
governmental regulatory authority renders the parties unable to consummate any
transaction contemplated by this Lease and any Lease Schedule which thereby
denies a party a material benefit contemplated by this Lease and any Lease
Schedule resulting in the unjust enrichment of the other party, the parties
shall negotiate in good faith an amendment to this Lease and any Lease Schedule
which fairly compensates the party denied the benefit.
21.25. Riders. In the event that any riders are attached hereto and made a part
hereof and if there is a conflict between the terms and provisions of any rider,
including any Lease Schedule and the terms and provisions herein, the terms and
provisions of the rider or Lease Schedule shall control to the extent of such
conflict.
21.26. Setoffs. The monies owed by Second Party herein shall be paid in full
when due under the terms of this Lease and any Lease Schedule without right of
setoff of any monies owed by First Party to Second Party under any other
agreement or for any other purpose. 21.27. Severability. Each term, covenant,
condition or provision of this Lease and any Lease Schedule shall be viewed as
separate and distinct, and in the event that any such term, covenant, condition
or provision shall be held by a court of competent jurisdiction to be invalid,
the remaining provisions shall continue in full force and effect.
21.28. Subcontracting. Second Party shall not subcontract any of its obligations
herein, or any portion thereof, without First Party's prior written consent.
Consent by First Party to any subcontracting of Second Party`s obligations or
responsibilities as set forth in this Lease and any Lease Schedule shall not be
deemed to create a contractual relationship between First Party and the
subcontracting party.
21.29. Suitability. Second Party understands and acknowledges that this Lease
and any Lease Schedule, at First Party's discretion, may be subject to Second
Party and its principals completing and submitting to First Party a due
diligence compliance questionnaire (including an Authorization for the Release
of Information) and being found suitable by First Party's Compliance Committee.
Notwithstanding any other provision in this Lease and any Lease Schedule to the
contrary, First Party may terminate this Lease and any Lease Schedule without
further obligation or liability to Second Party if, in the judgment of First
Party's Compliance Committee, the relationship with Second Party or its
principals could subject First Party to disciplinary action or cause First Party
to lose or become unable to obtain or reinstate any federal, state and/or
foreign registration, license or approval material to First Party's business or
the business of any First Party subsidiary.
21.30. Survival of Indemnities. All indemnities of Second Party shall survive
and continue in full force and effect for events occurring prior to the return
of the Equipment to the First Party, notwithstanding the expiration or
termination of the Term.
21.31. Third Party Beneficiary. Second Party agrees that First Party is an
express Third Party Beneficiary of the covenants and representations made in the
Indenture (as defined in section 12 of this Lease) and all documents or
instruments executed by and between Second Party and its parent corporation,
Riviera Holdings Corporation, including, but not necessarily limited to that
Keep-Well Agreement dated as of June 3, 1999, and that First Party shall be
entitled to rely on the terms contained therein and to enforce this Lease and
any Lease Schedules.
21.32. Time of Essence. Time is of the essence of this Lease and any Lease
Schedules. In the event the provisions of this Lease or any Lease Schedule
require any act to be done or to be taken hereunder on a date which is a
Saturday, Sunday or legal holiday, such act or action shall be deemed to have
been validly done or taken on the next succeeding day which is not a Saturday,
Sunday or legal holiday.
21.33. Waiver. The failure of any party to insist, in any one or more instances,
upon performance of any of the provisions of this Lease or any Lease Schedule or
to take advantage of any of its rights hereunder shall not operate as a waiver
thereof or preclude any other or further exercise thereof or the exercise of any
other right or power. Accordingly, the acceptance of rent by First Party after
it is due shall not be deemed to be a waiver of any breach by Second Party of
its obligations under this Lease or any Lease Schedule.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date set forth above.
LESSEE: PDS:
By: s/s Xxxxx Xxxxx By:s/s Xxx X. Xxxxxxx XX
------------------------------- ---------------------------------
Print Name:Xxxxx Xxxxx Print Name:Xxx X. Xxxxxxx XX
----------------------- -------------------------
Its: Treasurer Its:Vice President/General Counsel
----------------------------- --------------------------------
CONSENT AND AGREEMENT
The undersigned hereby consents and agrees to the Third Party beneficiary status
of PDS Financial Corporation-Colorado as more particularly set forth in section
21.31 of this Agreement.
RIVIERA HOLDINGS CORPORATION
By:s/s Xxxxx Xxxxx
-------------------------
Print Name:Xxxxx Xxxxx
-----------------
Its:Treasurer
-----------------------
13
EXHIBIT 10.21
AMENDED AND RESTATED
LEASE SCHEDULE NO. 1 TO MASTER LEASE AGREEMENT
(with Purchase/Renewal and/or Upgrade Option)
THIS AMENDED AND RESTATED LEASE SCHEDULE NO. 1 ("Amended Lease
Schedule") with an effective date of December 13, 1999 amends and restates that
Lease Schedule No. 1 dated December 13, 1999 and is attached to and made a part
of the Master Lease Agreement ("Lease") between PDS FINANCIAL
CORPORATION-COLORADO, a Colorado corporation ("Lessor"), and RIVIERA BLACK HAWK,
INC., a Colorado corporation ("Lessee"), dated December 13, 1999.
1.DEFINITIONS. Terms not otherwise defined in this Amended Lease Schedule
shall have the meaning attributed to such terms in the Lease.
2.DESCRIPTION OF EQUIPMENT. The equipment listed on Attachment "A" to this
Amended Lease Schedule (the "Equipment") is added to the equipment leased under
the Lease and made subject to the provisions of the Lease.
3. COMMENCEMENT DATE. The Commencement Date for the Equipment leased under this
Amended Lease Schedule shall be the Acceptance Date set forth in the Certificate
of Delivery, Installation and Acceptance executed by Lessee in connection with
this Amended Lease Schedule (December 20, 1999).
4.TERM. The Term shall commence on the Commencement Date and shall continue for
60 consecutive months.
5.BASIC RENT AND PAYMENTS. The Basic Rent due each month during the Term for
the Equipment is as follows:
a. The first payment of basic rent (not including applicable taxes) under this
Amended Lease Schedule in an amount equal to $29,608.15 shall be initially due
and payable on February 1, 2000. The second payment of basic rent (not including
applicable taxes) under this Amended Lease Schedule in an amount equal to
$29,608.15 shall be due and payable on March 1, 2000
b. The Third payment of basic rent (not including applicable taxes) under
this Amended Lease Schedule in an amount equal to $57,375.40 ("Basic Rent")
shall be initially due and payable on April 1, 2000. Basic Rent in the amount of
$57,375.40 shall be due and payable on the same calendar day of the subsequent
months. All remaining payments of Basic Rent shall be due and payable on the
same calendar day of each month for the remainder of the Term.
c. In addition to the monthly Basic Rent due as set forth above, Lessee shall
pay or reimburse Lessor for all taxes which may be imposed by any Federal, State
or local authorities in connection with the delivery, transfer and/or leasing of
the Equipment, including, but not necessarily limited to all property, sales
and/or use taxes levied or assessed regardless of whether such taxes are levied
or assessed against Lessor or Lessee.
6. SECURITY DEPOSIT. Due and payable on the Commencement Date, Lessee shall pay
to Lessor, a Security Deposit in an amount equal to one (1) month of the Basic
Rent. The Security Deposit will be held by the Lessor for the Term of the Lease
and will be returned to Lessee upon satisfactory completion of the terms and
conditions of the Lease or may be applied to the last payment of Basic Rent, at
Lessee's option.
7.PURCHASE, RENEWAL AND/OR UPGRADE OPTION TO AMENDED LEASE SCHEDULE.
a.Except as set forth in Section 13 of the Lease, if Lessee has not been in
default under the Term (as defined above), Renewal Term (defined below) or
Automatic Renewal Term (defined below) of the Lease or this Amended Lease
Schedule, Lessor grants Lessee the following option(s):
(i) Purchase Option: At the expiration of the Term, Renewal Term or Automatic
Renewal Term, Lessee may purchase all but not less than all of the Equipment
described in the Amended Lease Schedule for the fair market value of the
Equipment as of the date of expiration of the Term ("Exercise Price") as
determined by an independent appraiser mutually selected by Lessor and Lessee
(the "Purchase Option").
(ii) Renewal Option: At the expiration of the Term, Lessee may renew the Lease
Term for a period of 12 months ("Renewal Term") at the then fair market rental
as determined by an independent appraiser mutually selected by Lessor and Lessee
(the "Renewal Option").
1
(iii) Upgrade Option: After 18 months from the Commencement Date, Lessee
shall have the right to replace or upgrade up to 10% of the Equipment (at the
then fair market wholesale value) at anytime prior to the expiration of the 19th
month of this Amended Lease Schedule and after 30 months from the Commencement
Date, Lessee shall have the right to replace or upgrade up to 10% of the
original Equipment (at the then fair market wholesale value) at anytime prior to
the expiration of the 31st month of this Amended Lease Schedule (collectively
the "Upgrade Option") with new slot machines acceptable to Lessor (the
"Replacement Equipment") in its sole discretion only if the following conditions
are met to the reasonable satisfaction of Lessor: (i) Lessee is not in default
under the Lease, (ii) there are no material changes to Lessee's condition
(financial, business or otherwise), (iii) Lessee gives Lessor 90 days' written
notice of the exercise of the Upgrade Option, (iv) Lessee agrees to lease the
Replacement Equipment from Lessor under a new Equipment lease schedule
reflecting terms and rental factor consistent with terms generally available
from Lessor at that time, and (v) Lessee delivers the returned Equipment to
Lessor in like new condition, normal wear and tear excepted. Upon receipt of the
returned Equipment and execution of the appropriate documents evidencing the
obligation of the Lessee to lease the Replacement Equipment, Lessor shall reduce
the Basic Rent due under the Equipment Schedule based on the then established
wholesale value (as determined by Lessor) of the Equipment. .
(iv) Option to Return Equipment: At the expiration of the Term, Renewal Term or
Automatic Renewal Term, Lessee shall return the Equipment to Lessor at a
facility designated by Lessor, according to the terms of the Lease. b. Unless
otherwise specified above, Lessee must give written notice of the exercise of
any option 120 days prior to the expiration of any term. If written notice of
exercise of any Purchase Option or Renewal Option is not received within a
notification period as specified herein, the applicable term shall be
automatically renewed for an additional 120 days at the most recent Basic Rent
as set forth under the Amended Lease Schedule (the "Automatic Renewal Term").
Upon timely receipt of such notice of exercise, receipt of the payment of all
Rent due under the Lease and payment of the Exercise Price, Lessor will, with
exercise of the Purchase Option, execute and deliver to Lessee a Xxxx of Sale
for the Equipment described in the Amended Lease Schedule. Upon failure of the
Lessor to so deliver a Xxxx of Sale, this Option shall then constitute a
conveyance of the Equipment in accordance herewith. Payment in full of the
Exercise Price shall be due and payable on or before the expiration of the Term,
Renewal Term or Automatic Renewal Term. If Lessee has not been in default under
the terms of the Lease at the expiration of the Term, Renewal Term or Automatic
Renewal Term, Lessee may, upon 120 days advance written notice, notify Lessor of
its decision to terminate the Amended Lease Schedule and thereupon Lessee shall,
at Lessee's expense, return the Equipment to Lessor at a facility designated by
Lessor, according to the terms of the Lease. Lessee shall in all respects remain
obligated under the Lease for payment of Rent, care, maintenance, delivery, use
and insurance of the Equipment until Lessor inspects and accepts the Equipment.
In the event it shall at any time be determined that by reason of the options
hereby given or otherwise that the lease of the Equipment to which the Purchase
Option or the Renewal Option applies was in fact a sale to the Lessee of the
Equipment, the Lessee agrees that neither it nor its successors or assigns has
or will have any claim or cause of action against Lessor, its successors or
assigns, for any reason for loss sustained by virtue of such determination.
c. Lessee acknowledges that the Equipment sold by Lessor under the Purchase
Option is being sold in an "as is, where is" condition. Lessor makes, and will
make, no representations or warranties regarding the Equipment, its suitability
for Lessee's purpose, or its compliance with any laws. Lessee hereby assumes all
liability for the Equipment and agrees to indemnify Lessor per the terms of the
Lease for any claims whatsoever arising out of the purchase of the Equipment.
8. INCORPORATION OF LEASE. All of the provisions of the Lease are
incorporated by reference herein as if set forth fully herein.
Dated: 1/25/00
------------------
LESSEE: LESSOR:
By:s/s Xxxxx Xxxxx By:s/s Xxx X. Xxxxxxx XX
---------------------------------- ----------------------------
(Authorized Officer) (Authorized Officer)
Print Name: Xxxxx Xxxxx Print Name:Xxx X. Xxxxxxx XX
-------------------------- --------------------
Title:Treasurer Title:Vice Pres/General Counsel
------------------------------- ------------------------
2
EXHIBIT 10.22
AMENDED AND RESTATED
LEASE SCHEDULE NO. 2 TO MASTER LEASE AGREEMENT
(with Purchase/Renewal and/or Upgrade Option)
THIS AMENDED AND RESTATED LEASE SCHEDULE NO. 2 ("Amended Lease
Schedule") with an effective date of December 13, 1999 amends and restates that
Lease Schedule No. 2 dated December 13, 1999 and is attached to and made a part
of the Master Lease Agreement ("Lease") between PDS FINANCIAL
CORPORATION-COLORADO, a Colorado corporation ("Lessor"), and RIVIERA BLACK HAWK,
INC., a Colorado corporation ("Lessee"), dated December 13, 1999.
1.DEFINITIONS. Terms not otherwise defined in this Amended Lease Schedule shall
have the meaning attributed to such terms in the Lease.
2.DESCRIPTION OF EQUIPMENT. The equipment listed on Attachment "A" to this
Amended Lease Schedule (the "Equipment") is added to the equipment leased
under the Lease and made subject to the provisions of the Lease.
3.COMMENCEMENT DATE. The Commencement Date for the Equipment leased under this
Amended Lease Schedule shall be the Acceptance Date set forth in the Certificate
of Delivery, Installation and Acceptance executed by Lessee in connection with
this Amended Lease Schedule (December 20, 1999).
4.TERM. The Term shall commence on the Commencement Date and shall continue
for 60 consecutive months.
5. BASIC RENT AND PAYMENTS. The Basic Rent due each month during the Term for
the Equipment is as follows:
a. The first payment of basic rent (not including applicable taxes) under this
Amended Lease Schedule in an amount equal to $32,299.80 shall be initially due
and payable on February 1, 2000. The second payment of basic rent (not including
applicable taxes) under this Amended Lease Schedule in an amount equal to
$32,299.80 shall be due and payable on March 1, 2000
b. The Third payment of basic rent (not including applicable taxes) under
this Amended Lease Schedule in an amount equal to $65,529.79 ("Basic Rent")
shall be initially due and payable on April 1, 2000. Basic Rent in the amount of
$65,529.79 shall be due and payable on the same calendar day of the subsequent
months. All remaining payments of Basic Rent shall be due and payable on the
same calendar day of each month for the remainder of the Term.
c. In addition to the monthly Basic Rent due as set forth above, Lessee shall
pay or reimburse Lessor for all taxes which may be imposed by any Federal, State
or local authorities in connection with the delivery, transfer and/or leasing of
the Equipment, including, but not necessarily limited to all property, sales
and/or use taxes levied or assessed regardless of whether such taxes are levied
or assessed against Lessor or Lessee.
6. SECURITY DEPOSIT. Due and payable on the Commencement Date, Lessee shall pay
to Lessor, a Security Deposit in an amount equal to one (1) month of the Basic
Rent. The Security Deposit will be held by the Lessor for the Term of the Lease
and will be returned to Lessee upon satisfactory completion of the terms and
conditions of the Lease or may be applied to the last payment of Basic Rent, at
Lessee's option.
7.PURCHASE, RENEWAL AND/OR UPGRADE OPTION TO AMENDED LEASE SCHEDULE.
a. Except as set forth in Section 13 of the Lease, if Lessee has not been in
default under the Term (as defined above), Renewal Term (defined below) or
Automatic Renewal Term (defined below) of the Lease or this Amended Lease
Schedule, Lessor grants Lessee the following option(s):
(i) Purchase Option: At the expiration of the Term, Lessee may purchase all but
not less than all of the Equipment described in the Lease Schedule for the sum
of $1.00 ("Exercise Price") (the "Purchase Option").
b. Lessee acknowledges that the Equipment sold by Lessor under the Purchase
Option is being sold in an "as is, where is" condition. Lessor makes, and will
make, no representations or warranties regarding the Equipment, its suitability
for Lessee's purpose, or its compliance with any laws. Lessee hereby assumes all
1
liability for the Equipment and agrees to indemnify Lessor per the terms of the
Lease for any claims whatsoever arising out of the purchase of the Equipment.
8. INCORPORATION OF LEASE. All of the provisions of the Lease are
incorporated by reference herein as if set forth fully herein.
Dated:1/25/00
------------------
LESSEE: LESSOR:
By:s/s Xxxxx Xxxxx By: s/s Xxx X. Xxxxxxx XX
---------------------------------- ----------------------------
(Authorized Officer) (Authorized Officer)
Print Name: Xxxxx Xxxxx Print Name: Xxx X. Xxxxxxx XX
-------------------------- --------------------
Title:Treasurer Title:Vice Pres/General Counsel
------------------------------- ------------------------
2
EXHIBIT 10.23
LEASE SCHEDULE NO. 3 TO MASTER LEASE AGREEMENT
(with Purchase/Renewal and/or Upgrade Option)
THIS LEASE SCHEDULE NO. 3 ("Lease Schedule") is attached to and made a part
of the Master Lease Agreement ("Lease") between PDS FINANCIAL
CORPORATION-COLORADO, a Colorado corporation ("Lessor"), and RIVIERA BLACK HAWK,
INC., a Colorado corporation ("Lessee"), dated December 13, 1999.
1. DEFINITIONS. Terms not otherwise defined in this Lease Schedule shall
have the meaning attributed to such terms in the Lease.
2. DESCRIPTION OF EQUIPMENT. The equipment listed on Attachment "A" to this
Lease Schedule (the "Equipment") is added to the equipment leased under the
Lease and made subject to the provisions of the Lease.
3. COMMENCEMENT DATE. The Commencement Date for the Equipment leased under
this Lease Schedule shall be March 15, 2000.
4.TERM. The Term shall commence on the Commencement Date and shall continue
for 60 consecutive months.
5.BASIC RENT AND PAYMENTS. The Basic Rent due each month during the Term for
the Equipment is as follows:
a. The first payment of basic rent (not including applicable taxes) under this
Lease Schedule in an amount equal to $25,391.85 shall be initially due and
payable on March 15, 2000. The second payment of basic rent (not including
applicable taxes) under this Lease Schedule in an amount equal to $25,391.85
shall be due and payable on April 15, 2000
b. The Third payment of basic rent (not including applicable taxes) under
this Lease Schedule in an amount equal to $49,204.96 ("Basic Rent") shall be
initially due and payable on May 15, 2000. Basic Rent in the amount of
$49,204.96 shall be due and payable on the same calendar day of the subsequent
months. All remaining payments of Basic Rent shall be due and payable on the
same calendar day of each month for the remainder of the Term.
c. In addition to the monthly Basic Rent due as set forth above, Lessee shall
pay or reimburse Lessor for all taxes which may be imposed by any Federal, State
or local authorities in connection with the delivery, transfer and/or leasing of
the Equipment, including, but not necessarily limited to all property, sales
and/or use taxes levied or assessed regardless of whether such taxes are levied
or assessed against Lessor or Lessee.
6. SECURITY DEPOSIT. Due and payable on the Commencement Date, Lessee shall pay
to Lessor, a Security Deposit in an amount equal to one (1) month of the Basic
Rent. The Security Deposit will be held by the Lessor for the Term of the Lease
and will be returned to Lessee upon satisfactory completion of the terms and
conditions of the Lease or may be applied to the last payment of Basic Rent, at
Lessee's option.
7. PURCHASE, RENEWAL AND/OR UPGRADE OPTION TO LEASE SCHEDULE.
a. Except as set forth in Section 13 of the Lease, if Lessee has not been in
default under the Term (as defined above), Renewal Term (defined below) or
Automatic Renewal Term (defined below) of the Lease or this Lease Schedule,
Lessor grants Lessee the following option(s):
(i) Purchase Option: At the expiration of the Term, Renewal Term or Automatic
Renewal Term, Lessee may purchase all but not less than all of the Equipment
described in the Lease Schedule for the fair market value of the Equipment as of
the date of expiration of the Term ("Exercise Price") as determined by an
independent appraiser mutually selected by Lessor and Lessee (the "Purchase
Option"). (ii) Renewal Option: At the expiration of the Term, Lessee may renew
the Lease Term for a period of 12 months ("Renewal Term") at the then fair
market rental as determined by an independent appraiser mutually selected by
Lessor and Lessee (the "Renewal Option"). (iii) Upgrade Option: After 18 months
from the Commencement Date, Lessee shall have the right to replace or upgrade up
to 10% of the Equipment (at the then fair market wholesale value) at anytime
prior to the expiration of the 19th month of this Lease Schedule and after 30
months from the Commencement Date, Lessee shall have the right to replace or
upgrade up to 10% of the original Equipment (at the then fair market wholesale
value) at anytime prior to the expiration of the 31st month of this Lease
Schedule (collectively the "Upgrade Option") with new slot machines acceptable
to Lessor (the "Replacement Equipment") in its sole discretion only if the
following conditions are met to the reasonable satisfaction of Lessor:
1
(i)Lessee is not in default under the Lease,(ii)there are no material changes to
Lessee's condition (financial, business or otherwise), (iii) Lessee gives Lessor
90 days' written notice of the exercise of the Upgrade Option (iv) Lessee agrees
to lease the Replacement Equipment from Lessor under a new Equipment lease
schedule reflecting terms and rental factor consistent with terms generally
available from Lessor at that time, and (v) Lessee delivers the return Equipment
to Lessor in like new condition, normal wear and tear excepted. Upon receipt of
the returned Equipment and execution of the appropriate documents evidencing the
obligation of the Lessee to lease the Replacement Equipment, Lessor shall reduce
the Basic Rent due under the Equipment Schedule based on the then established
wholesale value (as determined by Lessor) of the Equipment.
(iv) Option to Return Equipment: At the expiration of the Term, Renewal Term or
Automatic Renewal Term, Lessee shall return the Equipment to Lessor at a
facility designated by Lessor, according to the terms of the Lease. b. Unless
otherwise specified above, Lessee must give written notice of the exercise of
any option 120 days prior to the expiration of any term. If written notice of
exercise of any Purchase Option or Renewal Option is not received within a
notification period as specified herein, the applicable term shall be
automatically renewed for an additional 120 days at the most recent Basic Rent
as set forth under the Lease Schedule (the "Automatic Renewal Term"). Upon
timely receipt of such notice of exercise, receipt of the payment of all Rent
due under the Lease and payment of the Exercise Price, Lessor will, with
exercise of the Purchase Option, execute and deliver to Lessee a Xxxx of Sale
for the Equipment described in the Lease Schedule. Upon failure of the Lessor to
so deliver a Xxxx of Sale, this Option shall then constitute a conveyance of the
Equipment in accordance herewith. Payment in full of the Exercise Price shall be
due and payable on or before the expiration of the Term, Renewal Term or
Automatic Renewal Term. If Lessee has not been in default under the terms of the
Lease at the expiration of the Term, Renewal Term or Automatic Renewal Term,
Lessee may, upon 120 days advance written notice, notify Lessor of its decision
to terminate the Lease Schedule and thereupon Lessee shall, at Lessee's expense,
return the Equipment to Lessor at a facility designated by Lessor, according to
the terms of the Lease. Lessee shall in all respects remain obligated under the
Lease for payment of Rent, care, maintenance, delivery, use and insurance of the
Equipment until Lessor inspects and accepts the Equipment. In the event it shall
at any time be determined that by reason of the options hereby given or
otherwise that the lease of the Equipment to which the Purchase Option or the
Renewal Option applies was in fact a sale to the Lessee of the Equipment, the
Lessee agrees that neither it nor its successors or assigns has or will have any
claim or cause of action against Lessor, its successors or assigns, for any
reason for loss sustained by virtue of such determination. c. Lessee
acknowledges that the Equipment sold by Lessor under the Purchase Option is
being sold in an "as is, where is" condition. Lessor makes, and will make, no
representations or warranties regarding the Equipment, its suitability for
Lessee's purpose, or its compliance with any laws. Lessee hereby assumes all
liability for the Equipment and agrees to indemnify Lessor per the terms of the
Lease for any claims whatsoever arising out of the purchase of the Equipment.
8. INCORPORATION OF LEASE. All of the provisions of the Lease are
incorporated by reference herein as if set forth fully herein.
Dated: 2/17/00
------------------
LESSEE: LESSOR:
By: s/s Xxxxx Xxxxx By: s/s Xxx X. Xxxxxxx XX
---------------------------------- ----------------------------
(Authorized Officer) (Authorized Officer)
Print Name: Xxxxx Xxxxx Print Name:Xxx X. Xxxxxxx XX
-------------------------- --------------------
Title: Treasurer Title: Vice Pres/General Counsel
------------------------------- ------------------------
2
EXHIBIT 10.24
LEASE SCHEDULE NO. 4 TO MASTER LEASE AGREEMENT
(with Purchase/Renewal and/or Upgrade Option)
THIS LEASE SCHEDULE NO. 4 ("Lease Schedule") is attached to and made a part
of the Master Lease Agreement ("Lease") between PDS FINANCIAL
CORPORATION-COLORADO, a Colorado corporation ("Lessor"), and RIVIERA BLACK HAWK,
INC., a Colorado corporation ("Lessee"), dated December 13, 1999.
1.DEFINITIONS. Terms not otherwise defined in this Lease Schedule shall have
the meaning attributed to such terms in the Lease.
2.DESCRIPTION OF EQUIPMENT. The equipment listed on Attachment "A" to this
Lease Schedule (the "Equipment") is added to the equipment leased under the
Lease and made subject to the provisions of the Lease. The capitalized cost of
the Equipment is $1,215,081.67 ("Capitalized Equipment Cost").
3.COMMENCEMENT DATE. The Commencement Date for the Equipment leased under this
Lease Schedule shall be March 1, 2000.
4.TERM. The Term shall commence on the Commencement Date and shall continue
for 60 consecutive months.
5.BASIC RENT AND PAYMENTS. The Basic Rent due each month during the Term for
the Equipment is as follows:
a. The first payment of basic rent (not including applicable taxes) under this
Lease Schedule in an amount equal to $20,000.00 shall be initially due and
payable on April 1, 2000. The second payment of basic rent (not including
applicable taxes) under this Lease Schedule in an amount equal to $20,000.00
shall be due and payable on May 1, 2000
b. The Third payment of basic rent (not including applicable taxes) under
this Lease Schedule in an amount equal to $26,546.82 ("Basic Rent") shall be
initially due and payable on June 1, 2000. Basic Rent in the amount of
$26,546.82 shall be due and payable on the same calendar day for the remaining
56 consecutive months with a final monthly payment due and owing on the 60th
month in the amount of $117,677.95. All payments of Basic Rent shall be due and
payable on the 1st day of each month for the entire Term.
c. In addition to the monthly Basic Rent due as set forth above, Lessee
shall pay or reimburse Lessor for all taxes which may be imposed by any Federal,
State or local authorities in connection with the delivery, transfer and/or
leasing of the Equipment, including, but not necessarily limited to all
property, sales and/or use taxes levied or assessed regardless of whether such
taxes are levied or assessed against Lessor or Lessee.
6. SECURITY DEPOSIT. Due and payable on the Commencement Date, Lessee shall pay
to Lessor, a Security Deposit in an amount equal to one (1) month of the Basic
Rent. The Security Deposit will be held by the Lessor for the Term of the Lease
and will be returned to Lessee upon satisfactory completion of the terms and
conditions of the Lease or may be applied to the last payment of Basic Rent, at
Lessee's option.
7. PURCHASE, RENEWAL AND/OR UPGRADE OPTION TO LEASE SCHEDULE.
a. If Lessee has not been in default under the Term (as defined above), Renewal
Term (defined below) or Automatic Renewal Term (defined below) of the Lease or
this Lease Schedule, Lessor grants Lessee the following option(s):
(i)Purchase Option: At the expiration of the Term, Lessee may purchase all but
not less than all of the Equipment described in the Lease Schedule for the sum
of $1.00 ("Exercise Price") (the "Purchase Option").
b. Unless otherwise specified above, Lessee must give written notice of the
exercise of any option 120 days prior to the expiration of any term. If written
notice of exercise of any Purchase Option or Renewal Option is not received
within a notification period as specified herein, the applicable term shall be
automatically renewed for an additional 120 days at the most recent Basic Rent
as set forth under the Lease Schedule (the "Automatic Renewal Term"). Upon
timely receipt of such notice of exercise, receipt of the payment of all Rent
due under the Lease and payment of the Exercise Price, Lessor will, with
1
exercise of the Purchase Option, execute and deliver to Lessee a Xxxx of Sale
for the Equipment described in the Lease Schedule. Upon failure of the Lessor to
so deliver a Xxxx of Sale, this Option shall then constitute a conveyance of the
Equipment in accordance herewith. Payment in full of the Exercise Price shall be
due and payable on or before the expiration of the Term, Renewal Term or
Automatic Renewal Term. If Lessee has not been in default under the terms of the
Lease at the expiration of the Term, Renewal Term or Automatic Renewal Term,
Lessee may, upon 120 days advance written notice, notify Lessor of its decision
to terminate the Lease Schedule and thereupon Lessee shall, at Lessee's expense,
return the Equipment to Lessor at a facility designated by Lessor, according to
the terms of the Lease. Lessee shall in all respects remain obligated under the
Lease for payment of Rent, care, maintenance, delivery, use and insurance of the
Equipment until Lessor inspects and accepts the Equipment. In the event it shall
at any time be determined that by reason of the options hereby given or
otherwise that the lease of the Equipment to which the Purchase Option or the
Renewal Option applies was in fact a sale to the Lessee of the Equipment, the
Lessee agrees that neither it nor its successors or assigns has or will have any
claim or cause of action against Lessor, its successors or assigns, for any
reason for loss sustained by virtue of such determination.
c. Lessee acknowledges that the Equipment sold by Lessor under the Purchase
Option is being sold in an "as is, where is" condition. Lessor makes, and will
make, no representations or warranties regarding the Equipment, its suitability
for Lessee's purpose, or its compliance with any laws. Lessee hereby assumes all
liability for the Equipment and agrees to indemnify Lessor per the terms of the
Lease for any claims whatsoever arising out of the purchase of the Equipment.
8. INCORPORATION OF LEASE. All of the provisions of the Lease are
incorporated by reference herein as if set forth fully herein.
Dated: 2/25/00
------------------
LESSEE: LESSOR:
By: s/s Xxxxx Xxxxx By: s/s Xxxxx X. Xxxxxx
---------------------------------- ----------------------------
(Authorized Officer) (Authorized Officer)
Print Name: Xxxxx Xxxxx Print Name: Xxxxx X. Xxxxxx
-------------------------- --------------------
Title: Treasuer Title: Treasurer
------------------------------- ------------------------
2
