LEASE ACKNOWLEDGMENT, ASSUMPTION AND MODIFICATION AGREEMENT
THIS LEASE ACKNOWLEDGMENT, ASSUMPTION AND MODIFICATION AGREEMENT
("Agreement"), dated as of February 11, 1998 (the "Effective Date"), is
entered into by and among PIONEER ASSOCIATES LIMITED LIABILITY COMPANY, a
Nevada limited liability company ("Pioneer"), BWBH, INC., a Delaware
corporation ("BWBH"), and KDL, INC., a Colorado corporation (the "Lessor").
R E C I T A L S:
A. Lessor and Pioneer, which inadvertently acquired its leasehold
interest as Pioneer Associates Ltd., entered into a Lease dated March
15, 1994 (the "Lease") by which Lessor leased to Pioneer the premises
located at 000 Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxx, more particularly
described as the East 1/2 of Xxx 0, Xxxxx 00, in the City of Black Hawk,
County of Xxxxxx, Colorado, together with all improvements thereon and
appurtenances thereto (the "Premises"). Capitalized words not otherwise
defined herein have the meaning set forth in the Lease.
B. Pioneer desires to sell, and BWBH desires to purchase, certain
of Pioneer's assets which it owns and operates on the Premises (the
"Asset Sale and Purchase") as set forth in that certain Asset Purchase
Agreement (the "Asset Purchase Agreement").
C. In connection with the Asset Sale and Purchase, Pioneer
desires to assign to BWBH Pioneer's rights as lessee under the Lease and
BWBH desires to assume Pioneer's obligations under the Lease.
D. Pioneer and BWBH desire to obtain Lessor's consent to the
assignment of the Lease and Lessor has agreed to permit and consent to
the assignment.
E. BWBH and Lessor also desire to modify the Lease in certain
respects, to be effective upon BWBH's and Pioneer's closing of the Asset
Sale and Purchase, as set forth herein.
NOW THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. ASSIGNMENT. Upon the closing of the Asset Sale and Purchase, and as
evidenced by the execution and delivery of an assignment and assumption
agreement ("Assignment and Assumption Agreement"), Pioneer will assign and
transfer to BWBH all of Pioneer's right, title and interest as tenant in and
to the Lease, for the duration of the term of the Lease, as such term is
extended, which Assignment and Assumption Agreement will be dated
as of and effective upon the date that Pioneer and BWBH close the Asset Sale and
Purchase ("Closing Date").
2. ASSUMPTION. Upon the closing of the Asset Sale and Purchase, BWBH
will, in the Assignment and Assumption Agreement, accept the terms of this
Agreement and assume and be bound by all obligations of Pioneer as tenant,
including the payment of all rent and other sums and performance of all
covenants of Pioneer as tenant pursuant to the Lease, as modified herein.
3. CONSENT. Lessor hereby consents to the assignment of the Lease by
Pioneer to BWBH which consent shall be effective upon the Closing Date. All
of the parties agree that BWBH and Pioneer may record the Assignment and
Assumption Agreement and Lessor's consent thereto in the real property
records of the Clerk and Recorder of Xxxxxx County, Colorado.
4. RELIANCE ON THIS AGREEMENT. BWBH will consummate the transactions set
forth in the Asset Purchase Agreement in reliance upon Lessor's and Pioneer's
representations, agreements and covenants contained herein, and but for such
representations, agreements and covenants of Pioneer and Lessor as contained
herein, BWBH will not consummate the transactions set forth in the Asset
Purchase Agreement with Pioneer.
5. VALID AGREEMENT. The Lease is a valid agreement between Lessor and
Pioneer. The copy of the Lease attached hereto as EXHIBIT A is a true and
correct reproduction of the Lease and constitutes the entire agreement between
Lessor and Pioneer, except as modified herein.
6. NO DEFAULTS. There have been no defaults by Lessor or Pioneer under
the Lease. Pioneer has paid all rent due to Lessor under the Lease through
the Effective Date. To the Lessor's and Pioneer's knowledge, there are no
conditions or events, either with the giving of notice or lapse of time, or
both, which would be treated or constitute defaults of Lessor or Pioneer with
respect to any of their obligations under the Lease. Lessor agrees to notify
BWBH of any default subsequent to the date hereof of which Lessor becomes aware.
7. TERM. Lessor hereby agrees to modify the Lease to provide that the
term of the Lease shall be extended to July 31, 2024 ("Term").
8. RENT. Upon the closing of the Asset Sale and Purchase and commencing
upon the Closing Date, the rent payments owing under Section 3 of the Lease
shall be modified so that BWBH will pay Lessor the sum of $22,500.00 per month
as rent for the Term of the Lease. The parties acknowledge and agree that
BWBH shall not be
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obligated to make any monthly override payments to Lessor as described in the
Lease.
9. GAMING LICENSURE. If the Colorado Limited Gaming Control
Commission (the "Commission") deems it necessary, because of the override
rent paid under the Lease and hereunder, for Lessor to obtain gaming
licensure, Lessor acknowledges and agrees that such gaming licensure shall be
Lessor's responsibility and obligation, and Lessor will indemnify and hold
BWBH harmless from and against all claims, damages, liabilities and losses
arising from Lessor's failure to obtain a gaming licensure upon the
Commission's directive or its obligation under Commission rules and
regulations to obtain same.
10. LEASE BONUS PAID. The parties acknowledge and agree that the Lease
Bonus described in Section 3(a) of the Lease has been paid by Pioneer and
upon the closing of the Asset Sale and Purchase, BWBH shall not be obligated
to pay the Lease Bonus.
11. CONSTRUCTION PERIOD. Lessor understands and agrees that commencing
on the Closing Date, BWBH shall cease operations of its casino business on
the Premises for an approximate 90 day period following the Closing Date
("Construction Period") in order to undertake construction, remodeling and
renovation work in the Premises. The parties understand and agree that Lessor
has previously approved BWBH's construction plans for the Premises, in the
form attached hereto as EXHIBIT B. Notwithstanding Section 8 of this Agreement,
BWBH shall pay $15,000 per month as Rent under the Lease during the
Construction Period. In consideration of Lessor's waiving payment of the
amount of the Rent during the Construction Period, BWBH shall pay Lessor
$7,500.00 upon the Closing Date. IN addition, the parties acknowledge and
agree that upon the earlier to occur of (i) 90 days from the Closing Date or
(ii) BWBH's opening of its casino operations on the Premises, BWBH shall
commence making the rent payments to Lessor which are set forth in Section 8.
12. PAYMENT IN FULL OF NOTE AND INDEBTEDNESS. Both Lessor and Pioneer
represent and warrant that the Note described in Section 3(b) and the debts
described in Sections 3(c), 3(d), 33 and as set forth in Exhibits A1, A2 and C
(other than the IGT debt described in Section 33 and set forth in Exhibit C) of
the Lease have been paid in full. In connection therewith, all parties
therefore agree that the third paragraph of Section 3(e) is no longer
applicable and shall be deleted in its entirety. In the event that any of the
indebtedness described in Sections 3(b), 3(c), 3(d), 33 and as set forth in
Exhibits A1, A2 and C (other than the IGT debt described in Section 33 and
set forth in Exhibit C) of the Lease have not been paid in full, Lessor and
Pioneer agree that upon the closing of the Asset Sale and Purchase, BWBH will
not assume any of such indebtedness and shall not be liable
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for such indebtedness to any lender or creditor thereunder upon and following
the Closing Date.
13. IGT DEBT. With respect to the IGT debt set forth in Section 33 and
Exhibit C of the Lease, the parties acknowledge and agree that upon the closing
of the Asset Sale and Purchase, BWBH shall acquire from IGT the gaming devices
which are subject of such debt and negotiate new loans on such devices with IGT
and pay off the existing IGT debt set forth in Section 33 and Exhibit C of the
Lease, and Lessor shall be released from all liability under the existing IGT
debt.
14. OPTION TO PURCHASE. The option to purchase the real property owned by
Lessor ("Real Property") set forth in Section 3(g) of the Lease shall remain in
full force and effect, notwithstanding the assignment of the Lease hereunder,
until March 16, 2001. Lessor agrees that on the Closing Date Pioneer may
assign such option to purchase to BWBH either in the Assignment and
Assumption Agreement or by a separate document in recordable form which
Lessor will sign. Lessor represents and warrants that because all of the
debts have been in paid in full as set forth in Section 13 of this Agreement,
should BWBH exercise the right to purchase the real property owned by Lessor
in accordance with Section 3(g) of the Lease, the purchase price for such
real property shall be $1,200,000 (the "Option Purchase Price"). The option
to purchase the Real Property shall be exercisable by BWBH upon thirty (30)
days' written notice to Lessor and upon such terms and conditions (other than
as set forth herein and in the Lease, including without limitation, the
Purchase Price) as the parties mutually agree in writing, by using the
Colorado Real Estate Commission approved form of Commercial Contract to Buy
and Sell Real Estate (the "Option Purchase Contract"). On the closing date
agreed upon in the Option Purchase Contract, (i) Lessor will convey the Real
Property to BWBH free and clear of all liens and encumbrances; (ii) BWBH
shall pay Lessor in cash, the Option Purchase Price, subject to customary
closing adjustments; and (iii) Lessor will deliver to BWBH an owner's policy
of title insurance which insures fee title to the Real Property in BWBH, free
and clear of all liens and encumbrances.
15. RIGHT OF FIRST REFUSAL. BWBH shall have a right of first refusal
in the event of a sale or transfer of the Real Property by Lessor as provided
in Section 24 of the Lease. Upon Lessor's receipt of an offer to purchase or
otherwise acquire the Real Property (the "Offer"), Lessor shall send such
Offer containing the purchaser's terms and purchase price (the "Offer
Purchase Price") to BWBH. BWBH shall have thirty (30) days' following its
receipt of the Offer to determine whether to purchase the Real Property upon
the terms of such Offer (the "Refusal Period"). If BWBH decides to purchase
the Premises upon the terms contained in the Offer, it shall notify Lessor in
writing prior to the end of the Refusal
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Period. The parties agree that in the event that BWBH purchases the Real
Property pursuant to such Offer, the parties will enter into a written
contract upon such terms as the parties mutually agree (other than those
terms set forth in the Offer) using the Colorado Real Estate Commission
approved form of Commercial Contract to Buy and Sell Real Estate (the
"Refusal Purchase Contract"). On the closing date agreed upon in the Refusal
Purchase Contract, (i) Lessor will convey the Real Property to BWBH free and
clear of all liens and encumbrances; (ii) BWBH shall pay Lessor in cash, the
Offer Purchase Price, subject to customary closing adjustments; and (iii)
Lessor will deliver to BWBH an owner's policy of title insurance which
insures fee title to the Real Property in BWBH, free and clear of all liens
and encumbrances. If BWBH does not notify Lessor in writing of BWBH's intent
to purchase the Real Property prior to the expiration of the Refusal Period,
Lessor shall be free to sell or transfer the Real Property to the person
named in the Offer, provided that no such sale or transfer shall be effective
if such sale or transfer would adversely affect BWBH's gaming license or
BWBH's ability to conduct gaming on the Premises.
16. Upon the closing of the Asset Sale and Purchase, BWBH shall not be
liable for any of the amounts due to Lessor under Section 22(d) of the Lease.
17. JEFFERSON NOTE. Section 41 of the Lease is hereby deleted in its
entirety as the Jefferson Note referenced in Section 41 has been paid in full.
18. BWBH'S LENDERS' SECURITY INTERESTS. Lessor understands and agrees
that, upon the closing of the Asset Sale and Purchase, BWBH shall subject
BWBH's leasehold interest in the Premises to two deeds of trust which shall
be subject to the Lease. The two deeds of trust secure BWBH's indebtedness to
BWBH's senior secured lenders which have rights to security interests to
after-acquired property, including leasehold interests, of BWBH, in
accordance with the loan agreements between BWBH and the senior secured
lenders and will in no event encumber Lessor's interest in the Real Property.
BWBH shall furnish Lessor with the notice required under Section 17 of the
Lease.
19. FURTHER ASSURANCES. On the Closing Date, Lessor and Pioneer agree
to recertify that the representations contained in this Agreement are true
and correct as of the Closing Date and that the covenants and agreements
contained in this Agreement are in full force and effect through the Closing
Date. Also, on the Closing Date, Lessor agrees to execute a consent to the
assignment of the Lease by Pioneer to BWBH.
20. NOTICES. Upon the closing of the Asset Sale and Purchase, the
notice to Lessee under the Lease in Section 28 of the Lease shall be revised
as follows:
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BWBH, Inc.
c/o Xxxx X. Xxxxx, Esq.
00000 X. Xxxxxx Xxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
21. COUNTERPARTS. This Agreement may be executed in several counterparts
each of which shall be an original and all of which, when taken together, shall
constitute one instrument notwithstanding that all parties have not executed the
same counterpart. The parties agree that signatures transmitted by facsimile
shall be binding as if they were original signatures.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
effective as of the date set forth in the first page of this Agreement.
Pioneer:
PIONEER ASSOCIATES LIMITED LIABILITY COMPANY, a
Nevada limited liability company
By: /s/ X. Xxxxxx
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Title: Agent
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BWBH:
BWBH, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Title: VP and Secretary
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LESSOR:
KDL, INC., a Colorado corporation
By: /s/ Xxxxxxx Xxxxxx
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Title: President
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