EXHIBIT 10.05
EXBER PERCONTA EQUIPMENT
EQUIPMENT LEASE
This Lease, effective as of the date stated below, is between
Exber, Inc., a Nevada corportation, referred to as Lessor, and
The Union Plaza Operating Company, a Nevada corporation, referred
to as Lessee.
Subject to the terms and conditions stated below, Lessor leases
to Lessee and Lessee leases from Lessor all that equipment
described in Exhibit A, attached to and made a part of this Lease,
or as described in any subsequent exhibits executed by both parties
that may be made a part of this Lease, referred to as the Property.
SECTION ONE
TERM OF LEASE
The term of this Lease shall be for a period of thirty six
(36) months, beginning on 3/15/03, and ending on 4/15/06. The
term of this Lease may be extended for additional equipment added
by subsequent exhibit under the terms set forth in that exhibit,
but otherwise the provisions of this Lease shall control. The
term of this Lease is irrevocable and rent shall not xxxxx for
any reason other than as provided in Section 10.
SECTION TWO
RENT
Lessee agrees to pay to Lessor, as rent for the Property, (as set
forth in Exhibit B), payable in monthly installments as follows:
(see Exhibit B) on the fifteenth day of each succeeding month
thereafter during the term of the Lease. All such payments shall
be made at the principal place of business of Lessor at 000 Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, or such other place as
shall be designated by written notice from Lessor to Lessee, unless
Lessor shall assign this Lease or the right to receive the Lease
payments, in which event Lease payments shall be paid to Lessor's
assignee, after written notice of the assignment has been given to
Lessee by Lessor.
SECTION THREE
LOCATION OF PROPERTY
Lessee, without prior written consent of Lessor, shall not permit
the Property to be removed from Xxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxx.
SECTION FOUR
CARE OF PROPERTY
Lessee shall use the Property in a careful and proper manner and
shall comply with all laws, ordinances, and regulations relating
to the possession, use, or maintenance of the Property.
SECTION FIVE
IDENTIFICATION OF PROPERTY
If at any time during the term of this Lease Lessor supplies Lessee
with labels, plates, or other markings stating that the Property is
owned by Lessor, Lessee shall affix and keep such labels, plates, or
other markings in a prominent place on the Property. Lessee agrees
to execute as requested all UCC forms requested by Lessor to perfect
Lessor's security interest in the Property and appoints Lessor its
attorney in fact to execute such forms on its behalf.
SECTION SIX
ALTERATIONS
Lessee agrees that it will make no alterations to or in the Property
without obtaining prior written permission from Lessor or, where
appropriate Lessee is given the right to make alterations, additions,
or improvements to the property, so long as the value of the property
is not reduced. All such additions to and improvements of the
Property of any kind shall immediately become Lessor's property and
subject to the terms of this Lease.
SECTION SEVEN
MAINTENANCE AND REPAIR
Lessee at Lessee's own cost and expense, shall keep the Property
in good repair, condition, and working order. Lessee shall not
remove, alter, disfigure, or cover up any numbering, lettering or
insignia displayed on the property, and shall see that the Property
is not subjected to careless or needlessly rough usage.
SECTION EIGHT
LESSOR'S RIGHT OF INSPECTION
Lessor, at all times during business hours, shall have the right
to enter on the premises where the Property may be located for the
purpose of inspecting it or observing its use. Lessee shall give
Lessor immediate notice of any attachment or other judicial process
affecting the property and, whenever requested by Lessor, shall
advise Lessor of the exact location of the Property.
SECTION NINE
RETURN OF PROPERTY
On expiration or earlier termination of this Lease, Lessee shall
return the Property to Lessor in good repair, ordinary wear and
tear resulting from proper use alone excepted, in the following
manner or as may be specified by Lessor:
(a) By delivering the Property at Lessee's expense to such
place as Lessor shall specify within the county in which
the Property was delivered to Lessee or to which the
Property was removed with the written consent of Lessor;
or
(b) By loading the Property at Lessee's cost on board such
carrier as Lessee shall specify and shipping the Property,
freight collect, to the destination designated by Lessor.
Such conditions for return of the Property are subject to
Lessee's option to purchase it as set forth below.
SECTION TEN
LESSEE'S OPTION TO PURCHASE
Lessor grants to Lessee the option to purchase the Property
at the end of the term of this Lease, provided that Lessee
gives notice to Lessor, in writing, of Lessee's intention to
exercise the option at least ninety (90) days prior to
expiration of this Lease, and provided further that Lessee
completely performs all terms and provisions of this Lease on
Lessee's part to be performed, including timely and full
payment of the Lease payments and other amounts due under this
Lease. Should Lessee exercise the option to purchase, all of
the Lease payments paid shall be applied to the purchase price
of the Property and, on receipt of the balance of the purchase
price by Lessor, together with a sum equal to any new or
applicable unpaid sales and use taxes, Lessor will transfer
title to the Property to Lessee, and will deliver, on Lessee's
written request, written evidence of the transfer of such title.
The option purchase price is the sum of One Dollar ($1.00).
(a) Lessee has entered into a contract with Barrick Corporation
under which Barrick will acquire all of the gaming and gaming
related equipment of Lessee. Lessor does not consent to
Xxxxxxx'x assumption of this Lease. Lessor does consent to Lessee
purchasing the equipment listed on Exhibit A prior to the
expiration of this Lease, when and only if, Barrick completes the
purchase of Lessee's business assets. The parties agree that the
method of payment will be an increased purchase price to Barrick
for the business assets, which purchase will then include the
equipment free and clear of this Lease. The purchase price of
the Exhibit A equipment shall be the remaining amounts due Lessor
under this Lease, excluding interest not yet accrued.
This sale shall be without warranty or representation
including MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE,
the equipment being sold "AS-IS."
SECTION ELEVEN
DELIVERY AND ACCEPTANCE OF PROPERTY
Lessee shall inspect the Property within twenty-four (24) hours
after it is delivered to Lessee. Unless Lessee, within ten (10)
days, gives written notice to Lessor specifying any defect in or
other proper objection to the Property, Lessee agrees it shall be
conclusively presumed, as between Lessor and Lessee that Lessee
has fully inspected and acknowledged the Property to be in good
condition and repair, and that Lessee is satisfied with and has
accepted the Property in such good condition and repair.
SECTION TWELVE
RISK OF LOSS OR DAMAGE
Lessee assumes all risk of loss of and damage to the Property
from any cause. Notwithstanding the commencement date, Lessee
agrees that all risk of loss of the Property shall be on Lessee
from and after shipment of the Property to Lessee from the Seller
thereof. No loss or damage to the Property will impair any
obligation of Lessee under this Lease, which will continue in
full force and effect. In the event of loss of or damage to
the Property, Lessee, at the option of Lessor, shall:
(a) Place the Property in good repair; or
(b) Replace the Property with like property in good
repair, which property shall become subject to this Lease.
SECTION THIRTEEN
OBLIGATION TO INSURE
Lessee, at Lessee's own expense, shall keep the Property insured
for such risks and in such amounts as Lessor shall require with
carriers acceptable to Lessor, shall maintain a loss payable
indorsement in favor of Lessor affording to Lessor such additional
protection as Lessor shall require, and shall maintain liability
insurance satisfactory to Lessor. All such insurance shall name
Lessor and Lessee as insured. The policies shall provide that they
may not be canceled or altered without at least thirty (30) days'
prior written notice to Lessor, and the loss payable indorsement
shall provide that all amounts payable by reason of loss of or
damage to the Property shall be payable only to Lessor. Lessee
shall deliver to Lessor evidence satisfactory to Lessor of all
such insurance. If loss or damage occurs under circumstances in
which Lessee is not in violation of the terms of any such policies,
and if Lessee has fulfilled Lessee's obligations under Section
Twelve of this Lease, and is not otherwise in defaults under this
Lease, Lessor will pay Lessee so much of any insurance proceeds
received by Lessor as the result of such loss as will fully
reimburse Lessee for the net expense incurred by Lessee in
fulfilling Lessee's obligations under Section Twelve.
SECTION FOURTEEN
TAXES AND FEES
Lessee shall pay all license fees, assessments, and sales, use,
property, and other taxes imposed on the Property by reason of
ownership, leasing, renting, sale, possession, or use, whether
they be assessed to Lessor or Lessee, together with any penalties
of interest, excepting federal, state, or local governmental
taxes, or payments in lieu of those taxes , imposed on or measured
by income of Lessor, If any tax, by law, is to be assessed or
billed to Lessor, Lessee, at Lessee's expense, will do anything
required to be done by Lessor in connection with the levy, assessment,
billing, or payment of such tax, and is authorized by Lessor to
act on Lessor's behalf in such respects; Lessee will cause all
xxxxxxxx of such taxes to Lessor to be made to Lessor in care of
Lessee and will from time to time, on request of Lessor, submit
written evidence of the payment of all governmental obligations
mentioned in this section. Lessee, on any property tax returns
required to be filed by Lessee, will include the property covered
by this Lease, or any substitutions or additions, as property owned
by Lessee for purposes of tax assessments. It is expressly agreed
that Lessee, without obtaining prior written permission of Lessor,
will not assert on Lessee's behalf, or on behalf of Lessor, any
immunity from taxation based on the tax-exempt status, if any, of
Lessor.
SECTION FIFTEEN
DEPOSIT OF SECURITY
Lessor acknowledges that Lessee has not deposited with Lessor any
security. If any security is deposited after the execution of this
Lease, absent Lessee's default it will returned to Lessee at the
termination of this Lease, less unpaid amounts due Lessor.
SECTION SIXTEEN
INDEMNITY OF LESSOR
Lessee shall indemnify and hold Lessor harmless from and against
all claims, actions, proceedings, costs, damages, and liabilities,
including attorney fees, arising out of, connected with, or resulting
from use of the Property, including, but not limited to, the
manufacture, selection, delivery, possession, use, operation, or
return of the Property.
SECTION SEVENTEEN
INSPECTION OF LESSEE'S RECORDS
Lessee shall keep books and records in accordance with good accounting
practice and shall deliver to Lessor financial and profit and loss
statements in such form and at such time as Lessor may require.
Lessee shall permit Lessor to examine and audit the books of Lessee's
business during normal business hours, on reasonable prior notice of
Lessor's intention to do so.
SECTION EIGHTEEN
EVENTS CONSTITUTING DEFAULT
The following events shall constitute default under this Agreement:
The nonpayment by Lessee for a period of five (5) days of any sum
required to be paid by Lessee;
The nonperformance by Lessee of any other term, covenant, or condition
of this Lease that is not cured within fifteen (15) days after notice
of nonperformance from Lessor;
Any affirmative act of insolvency by Lessee, or the filing by Lessee of
any petition under any bankruptcy, reorganization, insolvency, or
moratorium law, or any law for the relief of, or relating to, debtors;
The filing of any involuntary petition under any bankruptcy statute
against Lessee, or the appointment of any receiver or trustee to take
possession of the property of Lessee, unless such petitions or
appointment is set aside or withdrawn or ceases to be in effect within
fifteen (15) days of the date of the filing or appointment;
The subjection of any of Lessee's property to any levy, seizure,
assignment, application, or sale for or by any creditor or governmental
agency; or
Any actual or attempted assignment, sublease, transfer, conveyance,
encumbrance, hypothecation, change in location, non-use (except for
maintenance), abandonment of all or any portion of the Property.
SECTION NINETEEN
LESSOR'S RIGHT TO PREVENT DEFAULT
Should Lessee fail to make any payment or do any act as provided in
this Agreement, the Lessor shall have the right, but not the obligation,
without notice to or demand on Lessee, and without releasing Lessee from
any obligation under this Agreement, to make or do the same, and to pay,
purchase, contest, or compromise any encumbrance, charge, or lien that,
in the sole judgment of Lessor, appears to affect the property, and in
exercising any such rights, incur any liability and expend whatever
amounts in its discretion it may deem necessary. All expenses so
incurred by Lessor shall be, without demand, immediately due and payable
by Lessee and shall bear interest at the rate of twelve percent (12%) per
annum thereafter until paid.
SECTION TWENTY
LESSOR'S RIGHTS ON DEFAULT
On the occurrence of any of the events stated in Section Eighteen as
consulting defaults, Lessor, without notice to or demand on Lessee,
may:
Take possession of the Property and Lease the Property or any portion
of it, for such period and for such amount, and to such persons, as
Lessor shall elect, and apply the proceeds of any such renting, after
deducting all costs and expenses incurred in connection with the
recovery, repair, storage, and renting of the property, in payment of
the Lease payments and other obligations due from Lessee to Lessor,
Lessee remaining responsible for any deficiency; or
Take possession of the Property and sell it or any portion of it at
public or private sale, without demand or notice of intention to
sell, and apply the proceeds of any such sale, after deducting all
costs and expenses incurred in connection with the recovery, repair,
storage, and sale of the property and any rentals and other
obligations of Lessee than due, against the value of the property
sold as determined in Subparagraph (c) of Section Twelve. If the
proceeds, after the permitted deduction, are less than the value
so determined, Lessee shall immediately pay Lessor the difference.
SECTION TWENTY-ONE
GOVERNING LAW
This Lease shall be governed by and construed under the laws of the
State of Nevada.
SECTION TWENTY-TWO
STATUS OF THE PROPERTY
The Property is, and shall at all times remain, personal property,
notwithstanding that any part of it may now be, or may become, in
any manner attached to, or embedded in, or permanently resting on,
real property or any building on real property, or attached in any
manner to what is permanent as by means of cement, plaster, nails,
bolts, screws, or otherwise.
SECTION TWENTY-THREE
OWNERSHIP OF THE PROPERTY
The Property is, and shall at all times remain, the sole property
of Lessor, and Lessee shall have no right, title, or interest in
the Property except as expressly set forth in this lease.
SECTION TWENTY-FOUR
ASSIGNMENT
Without the prior written consent of Lessor, Lessee shall not:
Assign, transfer, or pledge this Lease, or any part of, or any
interest in the Property;
Sublet or lend any part of the Property; or
Permit any part of the Property to be used by anyone other than
Lessee or Lessee's employees.
Lessor may assign its interest, or a part of its interest, in
this Lease.
SECTION TWENTY-FIVE
SUSPENSION OF OBLIGATIONS OF LESSOR
The obligations of Lessor under this Lease shall be suspended to
the extent that it is hindered or prevented from complying with
this Lease because of labor disturbances, including strikes and
lockouts, acts of God, fires, storms, accidents, governmental
regulations, or interferences, any actions or threatened
actions of the applicable gaming or licensing authorities, or any
other cause beyond the control of Lessor. There shall be no
suspension of Lessee's obligation to timely pay amounts due
hereunder for any reason.
SECTION TWENTY-SIX
LIMITATION OF EFFECTS OF WAIVERS
No delay or omission to exercise any right, power, or remedy
accruing to Lessor on any breach or default of Lessee under this
Lease shall impair any such right, power, or remedy of Lessor,
nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of or in any similar
breach or default occurring subsequently; nor shall any waiver
of any single breach of default be deemed a waiver of any other
breach or default occurring previously or subsequently. Any
waiver, permit, consent, or approval of any kind or character
on the part of Lessor of any breach or default under this Lease,
or any waiver on the part of Lessor of any provision or condition
of this Lease, must be in writing and shall be effective only to
the extent in such writing specifically set forth. All remedies,
either under this Lease or by law, or otherwise afforded to Lessor,
shall be cumulative and not alternative.
SECTION TWENTY-SEVEN
WAIVER OF OFFSETS
Lessee waives any existing and future claims and offsets against
Lease payments or other payments due under this Lease, and agrees
to pay such Lease payments and other amounts regardless of any
offset or claim that may be asserted by Lessee or on Lessee's behalf.
SECTION TWENTY-EIGHT
ATTORNEY FEES
In the event that any action is filed in relation to this Lease,
the unsuccessful party in the action shall pay to the successful
party, in addition to all other sums that either party may be
called upon to pay, a reasonable sum for the successful party's
attorney fees.
SECTION TWENTY-NINE
NOTICES
Any communications between Lessor and Lessee, payments, and notices
provided in this Agreement to be given or made, shall be given or
made by mailing them to Lessor, Xxxx Xxxxxxxx, for Exber at 000 Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, and to Lessee Xxx Xxxxx for
Plaza at Xxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, or to such other
addresses as either party may indicate in writing.
SECTION THIRTY
LIMITATION OF WARRANTIES
Lessee acknowledges that the Property is of a size, design,
capacity, and manufacture selected by Lessee without the advice
or involvement of Lessor. Lessor is not a manufacturer of the
Property or a dealer in similar property and has not made and does
not make any representation, warranty, or covenant, express or
implied, with respect to the condition, quality, durability,
suitability, fitness for a particular purpose or merchantability
of the Property. Lessor, however, will take any steps reasonably
within its power to make available to Lessee any manufacturer's or
similar warranty applicable to the Property. Lessor shall not be
liable to Lessee for any liability, loss, or damage caused or
alleged to be caused directly or indirectly by the Property, by
any inadequacy of, or defect in, the Property, or by any incident
in connection with the Property.
SECTION THIRTY-ONE
SUCCESSORS AND ASSIGNS
This Agreement shall be binding on all successors and permitted
assigns of either party.
IN WITNESS whereof, each party has caused this Agreement to be
executed on the date indicated below.
DATED this 15th day of March 2003.
Lessee:
Union Plaza Operating Company
A Nevada corporation
By: /s/ XXXX XXXXX
Its: Vice President & General Manager
Lessor:
Exber, Inc.
A Nevada corporation
By: /s/ XXXX XXXXXX
Its:
SCHEDULE A
Plaza Hotel and Casino
Listing of Fixed Assets Leased
For the Year of 2003
Lease Reference Description of Equipment Quantity Unit Price Extension
Lease #2003-01 Perconta Voucher Terminal 2.0 30,000.00 60,000.00
Sales Tax 4,350.00
Sub-total 64,350.00 64,350.00
CDS System - Diagnostic
Monitor Software 1.0 7,500.00 7,500.00
Training and Configuration
Labor 1,200.00
Sales Tax 543.75
Sub-total 9,243.75 9,243.75
CDS System - Universal
Gateway - Perconta
Software 1.0 15,000.00 15,000.00
Installation Labor 5,250.00
Sales Tax 1,087.50
Sub-total 21,337.50 21,337.50
Perconta Voucher Terminal 1.0 30,000.00 30,000.00
Extended Warranty 4,500.00
Sales Tax 2,175.00
Sub-total 36,675.00 36,675.00
GRAND TOTAL 131,606.25
EXHIBIT B
Exber, Inc. - Equipment Lease
2003 (A) - Perconta Machines and Related CDS Software
9.0% Capital Lease
Pmt Date Loan Payment Accrued In Balance Chng Balance
15-Mar-03 131,606.25 (131,606.25)
1 15-Mar-03 4,153.89 0.00 4,153.89 127,452.36
2 15-Apr-03 4,153.89 955.89 3,198.00 124,254.36
3 15-May-03 4,153.89 931.91 3,221.98 121,032.38
4 15-Jun-03 4,153.89 907.74 3,246.15 117,786.23
5 15-Jul-03 4,153.89 883.40 3,270.49 114,515.74
6 15-Aug-03 4,153.89 858.87 3,295.02 111,220.72
7 15-Sep-03 4,153.89 834.16 3,319.73 107,900.99
8 15-Oct-03 4,153.89 809.26 3,344.63 104,556.36
9 15-Nov-03 4,153.89 784.17 3,369.72 101,186.64
10 15-Dec-03 4,153.89 758.90 3,394.99 97,791.65
11 15-Jan-04 4,153.89 733.44 3,420.45 94,371.20
12 15-Feb-04 4,153.89 707.78 3,446.11 90,925.09
13 15-Mar-04 4,153.89 681.94 3,471.95 87,453.14
14 15-Apr-04 4,153.89 655.90 3,497.99 83,955.15
15 15-May-04 4,153.89 629.66 3,524.23 80,430.92
16 15-Jun-04 4,153.89 603.23 3,550.66 76,880.26
17 15-Jul-04 4,153.89 576.60 3,577.29 73,302.97
18 15-Aug-04 4,153.89 549.77 3,604.12 69,698.85
19 15-Sep-04 4,153.89 522.74 3,634.15 66,067.70
20 15-Oct-04 4,153.89 495.51 3,658.38 62,409.32
21 15-Nov-04 4,153.89 468.07 3,685.82 58,723.50
22 15-Dec-04 4,153.89 440.43 3,713.46 55,010.04
23 15-Jan-05 4,153.89 412.58 3,741.31 51,268.73
24 15-Feb-05 4,153.89 384.52 3,769.37 47,499.36
25 15-Mar-05 4,153.89 356.25 3,797.64 43,701.72
26 15-Apr-05 4,153.89 327.76 3,826.13 39,875.59
27 15-May-05 4,153.89 299.07 3,854.82 36,020.77
28 15-Jun-05 4,153.89 270.16 3,883.73 32,137.04
29 15-Jul-05 4,153.89 241.03 3,912.86 28,224.18
30 15-Aug-05 4,153.89 211.68 3,942.21 24,281.97
31 15-Sep-05 4,153.89 182.11 3,971.78 20,310.19
32 15-Oct-05 4,153.89 152.33 4,001.56 16,308.63
33 15-Nov-05 4,153.89 122.31 4,031.58 12,277.05
34 15-Dec-05 4,153.89 92.08 4,061.81 8,215.24
35 15-Jan-06 4,153.89 61.61 4,092.28 4,122.96
36 15-Feb-06 4,153.89 30.93 4,122.96 0.00
