MASTER LEASE AGREEMENT
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THIS MASTER LEASE AGREEMENT ("Lease" or "Agreement") is made and
entered into on ___________________________, by and between PDS FINANCIAL
CORPORATION, a Minnesota corporation dba PDS GAMING, its successors and assigns
("PDS", "Lessor" or "First Party"), whose address is 0000 XxXxxx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000-0000 and CORPUS CHRISTI DAY CRUISE, LTD., a Xxxxxxxx Island
limited partnership ("Lessee" or "Second Party"), whose address is 0000 X.
Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, XX 00000.
RECITALS
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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
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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 when due then a late charge on such Rent shall be due and payable with
such Rent in an amount equal to one and one-half percent (1.5%) of the
Capitalized Equipment Cost, as defined in the Lease Schedule, 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 First
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 3% of the total Lease Schedule amount) in connection with
the closing of each transaction, 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.
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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,
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.
4. NET LEASE. 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;
[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
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[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, 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 terms "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.
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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.
10.2. First Party's Filing of Taxes. Notwithstanding the foregoing,
First Party at its election may report and file sales and/or use tax reports,
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. 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. 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.
12. REPRESENTATIONS AND WARRANTIES. Second Party hereby represents and warrants
to First Party that:
12.1. It is an entity duly organized, validly existing and in good
standing under the laws of the state of its formation;
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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. 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 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. 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. 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. Second Party is not presently insolvent and this Agreement
will not render Second Party insolvent. As used in this section, the term
"insolvent" means that the sum total of all of an entity's liabilities (whether
secured or unsecured, contingent or fixed, or liquidated or unliquidated) is in
excess of the value of such entity's non-exempt assets (i.e. all of the assets
of the entity that are available to satisfy claims of creditors);
12.10. As of the date hereof, it's obligations under this Agreement
are not subject to any defense, set off or counterclaim;
12.11. Second Party is not currently aware of any event, condition,
fact or circumstance, which, after the execution of this Agreement, would
prevent Second Party from having sufficient working capital to pay all of Second
Party's debts as they become due;
12.12. This Agreement constitutes a valid and legally 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;
12.13. 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;
12.14. 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; and
12.15. To the best of it`s knowledge and belief, 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. PDS Slot Source Gaming Devices/Digital Games.
13.1.1. Each gaming device supplied herein by PDS's Slot
Source Division ("Slot Source Devices") and any Digital Games ("Digital Games"),
which are subject to this Lease or any Lease Schedule, if any, are leased in a
functional condition. First Party warrants that for a period of ninety (90) days
following delivery, any Slot Source devices (including custom reconditioned,
Quick Ship, Fast Track and/or functional Slot Source Devices leased in any Lease
Schedule) will be mechanically sound and in good working order. First Party
further warrants that for a period of one (1) year following delivery, any
Digital Games will be mechanically sound and in good working order. Second
Party's sole and exclusive remedy in the event of defect of Slot Source Devices
or Digital Games is expressly limited to the restoration of the device 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,
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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 such Equipment shall
be deemed to be a warranty of First Party for any purpose.
13.1.2. The Second Party will bear the cost of returning any
defective Slot Source Devices or Digital Games to First Party, including
shipping and reasonable packaging. First Party will bear the cost of returning
the repaired or replacement Slot Source Device or Digital Game to the 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.
13.2. Original Equipment Manufacturer ("OEM") Gaming Devices or
Equipment. First Party makes no warranties, express or implied, including, but
not limited to, warranties of merchantability or fitness for a particular
purpose with regard to any OEM gaming devices or equipment acquired by PDS for
lease to Lessee hereunder. No affirmation of fact, including, but not limited
to, statements regarding suitability for use or performance of such Equipment
shall be deemed to be a warranty of First Party for any purpose. All OEM
warranties, if any, shall extend to Lessee, subject to the terms and conditions
of said OEM warranty and to the extent as it may apply to any Equipment leased
herein.
13.3. Notwithstanding anything herein to the contrary, First Party
shall not be responsible or liable for any revenues foregone by the Second
Party, while a Unit is 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
such Equipment. The liability of First Party and the OEM 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 OEM 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 FIRST PARTY 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 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, which consent shall not be unreasonably withheld.
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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 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 of its due date;
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. Second Party's rejection of any authorized withdrawal, payment
or entry permitted by the Authorization for Automatic Payment;
16.4. 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;
16.5. 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;
16.6. Second Party materially defaults 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;
16.7. 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);
16.8. 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;
16.9. Any unit of the Equipment is lost, stolen or destroyed;
16.10. An unit of the Equipment is attached, levied upon, encumbered,
pledged, or seized under any judicial process;
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16.11. 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;
16.12. 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;
16.13. The revocation of any gaming license of Second Party;
16.14. The denial of any gaming license application of Second Party;
16.15. Failure of Second Party to comply with all gaming statutes and
regulations;
16.16. Failure of Second Party to maintain the insurance required by
this Agreement; and/or
16.17. Sale, change in control or any transfer of a majority of
Second Party 's business or assets.
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
agent and 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 and as may be allowed by applicable law;
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;
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
Page 8
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. COMPLIANCE WITH GOVERNMENTAL AGENCIES.
18.1. 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 subject to the approval by the Authorities, if such approval is so
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.
18.2. 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.
19. 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.
Page 9
20. MISCELLANEOUS.
20.1. 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.
20.2. 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.
20.3. 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.
20.4. 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.
20.5. 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.
20.6. Confidentiality.
20.6.1. 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.
20.6.2. 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.
20.7. 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.
20.8. 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
Page 10
representations made by any First Party's salespersons or anyone else shall be
binding unless incorporated herein in writing
20.9. 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.
20.10. 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 carry out the intent of this Lease
20.11. Governing Law.
20.11.1. The substantive and procedural laws of the State of
Nevada shall govern the validity, construction, interpretation, performance and
enforcement of this Agreement and the parties agree to jurisdiction in Nevada
without reference to its conflict of laws provisions. The parties also hereby
agree that any action and/or proceeding in connection with this Agreement shall
only be brought in the venue of Xxxxx County, Nevada.
20.11.2. 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.
20.11.3. 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.
20.12. 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 60 days prior written notice to
Second Party, whereupon the Lease and/or Lease Schedule shall be null and void.
20.13. 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.
Page 11
20.14. 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.
20.15. 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.
20.16. 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.
20.17. 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.
20.18. 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.
20.19. 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.
20.20. 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.
20.21. 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 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.
20.22. Privileged Licenses.
20.22.1. 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.
20.22.2. 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
Page12
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.
20.23. 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.
20.24. 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.
20.25. 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.
20.26. 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.
20.27. 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
20.28. 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.
20.29. 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. 20.30. 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.
20.31. 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.
20.32. 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.
21. Intercreditor Agreement. This Instrument is subject to the terms of an
Intercreditor Agreement and Ships Mortgage dated __________________.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date set forth above.
LESSEE: PDS:
By: Corpus Christi Day Cruise, Inc.,
General Partner
By: By:
--------------------------- ---------------------------------
Print Name: Xxxxxx Xxxxx Print Name:
-------------------------
Its: President Its:
-------------------------------
Page 14
LEASE SCHEDULE NO. 1 TO MASTER LEASE AGREEMENT
(With Options)
THIS LEASE SCHEDULE NO. 1 ("Lease Schedule") is attached to and made a
part of the Master Lease Agreement ("Lease") between PDS FINANCIAL CORPORATION,
a Minnesota corporation ("Lessor"), and CORPUS CHRISTI DAY CRUISE, LTD., a
Xxxxxxxx Island limited partnership ("Lessee"), dated ________________.
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 $1,447,181.00 ("Capitalized Equipment Cost").
3. COMMENCEMENT DATE. The Commencement Date for the Equipment
leased under this Lease Schedule shall be the Acceptance Date set forth in the
Certificate of Delivery, Installation and Acceptance executed by Lessee in
connection with this Lease Schedule.
4. TERM. The Term shall commence on the Commencement Date and
shall continue for 36 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 $48,771.22
("Basic Rent") shall be initially due and payable on November 15, 2000.
b. The second payment of Basic Rent shall be due and
payable on the same calendar day of the subsequent month. 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 agrees to pay and indemnify Lessor for, and hold Lessor
harmless from and against all taxes, assessments, fees and charges (hereinafter
called "Imposts") together with any penalties, fines or interest thereon levied
and imposed by any governmental agency or unit (state, local, federal, domestic
or foreign), regardless of party assessed against: (i) with respect to the Lease
or this Lease Schedule; (ii) upon the Equipment, its value or any interest of
Lessor and/or Lessee therein; (iii) upon or on account of any sale, rental,
purchase, ownership, possession, use, operation, maintenance, delivery or return
of the Equipment, or value added thereto, other than taxes imposed on or
measured by the next income or capital of Lessor. The amount of the Impost shall
be come Supplemental Rent to be paid by Lessee upon Lessor's demand. If any
Impost relates to a period during the Term (as defined above), Renewal Term
(defined below) or Automatic Renewal Term (defined below) (no matter when it is
assessed) then Lessee's liability for such Impost shall continue,
notwithstanding the expiration or termination of the Lease or this Lease
Schedule, until all such Imposts are paid in full by Lessee.
6. OPTIONS AND NOTICE.
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, 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 equal to the sum of $167,000.00 ("Exercise Price")
(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 Lessor in its sole discretion
(the "Renewal Option").
Page 1
(iii) Option to Return Equipment: At the
expiration of the Term, Renewal Term or Automatic Renewal Term (defined below),
Lessee may return the Equipment to Lessor at a facility designated by Lessor,
according to the terms of the Lease. In the event such an election is made, the
Lessor shall, within thirty (30) days from the Equipment's return, obtain three
(3) valid and legitimate Wholesale Bids (which may include bids made directly to
Lessee, if any) from independent third parties, for the sale and purchase of the
Equipment. Lessor agrees that Lessee shall appoint one such bidder. Lessor shall
then present the bids to Lessee for Lessee's review. Lessee shall have
forty-eight (48) hours to determine whether Lessee finds the bids acceptable or
not. In the event Lessee finds all of the bids unacceptable, Lessee shall become
obligated to purchase the Equipment for the Exercise Price set forth above. If
Lessee accepts at least one of the bids, Lessee shall be obligated to Lessor for
the deficiency between the highest bid and the Exercise Price, if any (the
"Deficiency"). Lessee shall pay the Deficiency to Lessor within ten (10) days
from Lessee's acceptance of any bid.
b. Unless otherwise specified above, Lessee must give
written notice of the exercise of any option 120 days prior to the expiration of
a 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.
7. INCORPORATION OF LEASE. All of the provisions of the Lease are
incorporated by reference herein as if set forth fully herein.
Dated:
------------------------
LESSEE: LESSOR:
By: Corpus Christi Day Cruise, Inc.,
General Partner
By: By:
----------------------------- ------------------------------------
Xxxxxx Xxxxx, President Xxx X. Xxxxxxx XX
Senior VP and General Counsel
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GUARANTY
(Lease)
FOR VALUE RECEIVED, and in order to induce PDS FINANCIAL CORPORATION, a
Minnesota corporation ("Lessor"), to lease to CORPUS CHRISTI DAY CRUISE, LTD., a
Xxxxxxxx Island limited partnership ("Lessee") the equipment described in that
certain Master Lease Agreement dated ___________ ("Lease Agreement") and Lease
Schedule No. 1 thereto dated _____________________ ("Lease Schedule") (the Lease
Agreement, Lease Schedule and all documents and instruments executed and
delivered to Lessor in connection with the Lease are hereafter collectively the
"Lease") made and executed by the Lessee to the order of Lessor, the undersigned
hereby absolutely and unconditionally guarantees to Lessor the due and prompt
payment by Lessee of all sums due under the Lease, and all other costs incurred,
including reasonable attorneys' fees, in enforcing payment of the Lease or this
Guaranty (all such costs, the indebtedness evidenced by, and the terms and
conditions of the Lease and this Guaranty being herein collectively referred to
as the "Indebtedness Guaranteed");
It is understood and agreed that as a condition of giving this
Guaranty, the undersigned shall be given ten (10) days after receipt of written
notice from Lessor of a default by Lessee in payment of any Indebtedness
Guaranteed to cure such default. If the undersigned fails to cure a default by
Lessee within ten (10) days after receipt of written notice from Lessor of a
default by Lessee, the undersigned does hereby grant to Lessor the right to
demand immediate payment from the undersigned, and the undersigned shall
immediately become liable for, the balance of the Indebtedness Guaranteed upon
acceleration of the Indebtedness Guaranteed by Lessor, without further notice.
The undersigned hereby agrees that the Lessor may from time to time
without notice to or consent of the undersigned and upon such terms and
conditions as the Lessor may deem advisable without affecting this Guaranty (a)
release any maker, surety or other person liable for payment of all or any part
of the Indebtedness Guaranteed; (b) make any agreement extending or otherwise
altering the time for or the terms of payment of all or any part of the
Indebtedness Guaranteed; (c) modify, waive, compromise, release, subordinate,
resort to, exercise or refrain from exercising any right the Lessor may have
hereunder, under the Lease or any other security given for the Indebtedness
Guaranteed; (d) accept additional security or guarantees of any kind; (e)
endorse, transfer or assign its rights under the Lease, to any other party; (f)
accept from Lessee or any other party partial payment or payments on account of
the Indebtedness Guaranteed; (g) from time to time hereafter further loan monies
or give or extend credit to or for the benefit of the Lessee; and (h) release,
settle or compromise any claim of the Lessor against the Lessee, or against any
other person, firm or corporation whose obligation is held by the Lessor as
security for the Indebtedness Guaranteed.
The undersigned hereby unconditionally and absolutely waives (a) any
obligation on the part of the Lessor to protect, secure or insure any of the
security given for the payment of the Indebtedness Guaranteed; (b) the
invalidity or unenforceability of the Indebtedness Guaranteed; (c) any of the
security given for the payment of the Indebtedness Guaranteed; (d) notice of
acceptance of this Guaranty by the Lessor; (e) notice of presentment, demand for
payment, notice of non-performance, protest, notices of protest and notices of
dishonor, notice of non-payment or partial payment; (f) notice of any defaults
under the Lease or in the performance of any of the covenants and agreements
contained therein or in any instrument given as security therefor; (g) any
defense, offset or claim the Lessee or the undersigned may have against the
Lessor; (h) any limitation or exculpation of liability on the part of the Lessee
whether contained in the Lease or otherwise; (i) the transfer or sale by the
Lessee or the diminution in value thereof of any security given for the
Indebtedness Guaranteed; (j) any failure, neglect or omission on the part of the
Lessor to realize or protect the Indebtedness Guaranteed or any security given
therefor; (k) any right to insist that the Lessor prosecute collection of the
Indebtedness Guaranteed or resort to any instrument or security given to secure
the Indebtedness Guaranteed or to proceed against the Lessee or against any
other guarantor or surety prior to enforcing this Guaranty; provided, however,
at its sole discretion the Lessor may either in a separate action or an action
pursuant to this Guaranty pursue its remedies against the Lessee or any other
guarantor or surety, without affecting its rights under this Guaranty; (l)
notice to the undersigned of the existence of or the extending to the Lessee of
the Indebtedness Guaranteed, or (m) any order, method or manner of application
of any payments on the Indebtedness Guaranteed.
Without limiting the generality of the foregoing, the undersigned will
not assert against the Lessor any defense of waiver, release, discharge in
bankruptcy, statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, fraud, ultra xxxxx acts, usury, illegality or
unenforceability which may be available to the Lessee in respect of the
Indebtedness Guaranteed, or any setoff available against the Lessor to the
Lessee whether or not on account of a related transaction, and the undersigned
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expressly agrees that it shall be and remain liable for any deficiency remaining
after repossession and sale of any of the leased equipment under the Lease,
notwithstanding provisions of law that may prevent the Lessor from enforcing
such deficiency against the Lessee. The undersigned hereby specifically waives
and renounces any right to proceed against the Lessee, and its successors and
assigns, for any deficiency arising as a result of the foreclosure of any
mortgage or security interest securing the Indebtedness Guaranteed, which
deficiency Lessor may be unable to enforce against the Lessee pursuant to
applicable law. The liability of the undersigned shall not be affected or
impaired by any voluntary or involuntary dissolution, sale or other disposition
of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar event or proceeding affecting the Lessee or any of its assets and that
upon the institution of any of the above actions, at the Lessor's sole
discretion and without notice thereof or demand therefor, the undersigned's
obligations shall become due and payable and enforceable against the
undersigned, whether or not the Indebtedness Guaranteed is then due and payable.
The undersigned further agrees that no act or thing, except for payment
and performance in full of the Indebtedness Guaranteed, which but for this
provision might or could in law or in equity act as a release of the liabilities
of the undersigned hereunder shall in any way affect or impair this Guaranty and
the undersigned agrees that this shall be a continuing, absolute and
unconditional Guaranty and shall be in full force and effect until the
Indebtedness Guaranteed has been paid in full.
Performance by the undersigned under this Guaranty shall not entitle
the undersigned to be subrogated to any of the Indebtedness Guaranteed or to any
security therefor, unless and until the full amount of the Indebtedness
Guaranteed has been fully paid.
The undersigned agrees this Guaranty is executed in order to induce the
Lessor to enter into the Lease and with the intent that it shall be relied upon
by the Lessor in connection therewith. Execution of the Lease, without any
further action or notice, shall constitute conclusive evidence of the reliance
hereon by the Lessor. This Guaranty shall run with the Lease and without the
need for any further assignment of this Guaranty to any subsequent holder of the
Lease or the need for any notice to the undersigned thereof. Upon endorsement or
assignment of the Lease to any subsequent holder, said subsequent holder of the
Lease may enforce this Guaranty as if said holder had been originally named as
Lessor hereunder.
The undersigned consents to be sued in any jurisdiction in which either
the Lessee may be sued or the Lessor's principal place of business, at Lessor's
sole option, as well as the undersigned's principal place of business and
residence and in the state where this Guaranty is executed.
No right or remedy herein conferred upon or reserved to the Lessor is
intended to be exclusive of any other available remedy or remedies but each and
every remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty or now or hereafter existing at law or in equity. No
waiver, amendment, release or modification of this Guaranty shall be established
by conduct, custom or course of dealing, but only by an instrument in writing
duly executed by the Lessor.
This Guaranty is delivered in, made in, and shall in all respects be
construed pursuant to the laws of the State of Nevada.
This Guaranty and each and every part hereof, shall be binding upon the
undersigned and upon its successors and assigns and shall inure to the pro rata
benefit of each and every future holder of the Lease, including the successors
and assigns of the Lessor.
Dated: _________________________________.
VIVA GAMING RESORTS, INC., a
Florida corporation
By:
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Print name:
-------------------------
Its:
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