1
Exhibit 10.4
WAIVER OF INTEREST, ASSIGNMENT OF LEASE,
AND AGREEMENT CONCERNING ASSUMPTION OF LEASE
To induce BNC National Bank of Minnesota ("Bank") to enter into a
credit relationship with Concorde Cripple Creek, Inc., a Colorado corporation
("Tenant") and for other good and valuable consideration, Tenant, Elevation
8000+, a Colorado limited liability company ("Landlord") and Bank hereby agree
as follows:
1. Landlord owns certain real property known as the Golden Gates
Casino and legally described as Lots 9-12, inclusive, Block 39, City of Black
Hawk, County of Xxxxxx, State of Colorado, on which the Tenant's facility is
located (the "Leased Premises") and entered into a Lease Agreement with Tenant
on July 21, 1997, as amended by that certain First Amendment to Lease dated as
of January 1, 1999, by the terms of which it leased the Leased Premises to the
Tenant. The Lease Agreement as amended shall hereafter be referred to as the
"Lease".
2. The Bank has extended certain loans (the "Loans") to the Tenant
secured by, among other things, personal property of the Tenant located on the
Leased Premises. Landlord acknowledges receipt of notice that the Bank has a
security interest in the personal property of the Tenant located on the Leased
Premises (the "Collateral"). The Landlord does not and shall not have any
interest therein or lien or claim thereon. Without limiting the generality of
the foregoing, the Landlord specifically waives and releases each and all
security interests, liens, claims and charges now or at any time hereafter
available to the Landlord with respect to the Collateral located on the Leased
Premises.
3. As further security for the Loans, Tenant hereby assigns its
interest as Tenant pursuant to the Lease to the Bank, together with all of its
right, title and interest in and to the Leased Premises. Tenant warrants and
represents (a) that is has the right to make and enter into this agreement to
grant such assignment and (b) that it is not in default under the terms and
conditions of the Lease.
4. At any time before the expiration or termination of the Lease or
the termination of Tenant's right to possession of the Leased Premises, the
Bank and the Bank's successors or assignees, or any transferee of the Bank's
rights in the Collateral (including, without limitation, a purchaser of such
personal property upon foreclosure or repossession of the Bank's interest in
the Collateral) (such successors, assignees or transferees shall hereafter be
referred to as the "Subsequent Parties") shall be entitled to occupy and take
fully, unrestricted and sole possession of the Leased Premises and shall
further be entitled to assume all of the benefits and burdens of the Lease, but
only upon express written notice of its intention to do so.
5. Prior to occupancy of the Leased Premises, the Bank or Subsequent
Party shall provide ten (10) days prior written notice of its anticipated
occupancy to Landlord as follows:
2
c/o Xxxxx Xxxxxxx
00000 X.X. Xxxxxxx 00
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopier number (000) 000-0000
or such other address as Landlord may from time to time provide the Bank.
6. If the Bank or Subsequent Party assumes possession of the Leased
Premises, it shall, during its time of possession be responsible for compliance
with all of the Lease. If after taking possession of the Leased Premises, but
prior to delivery to the Landlord of written notice of its intention to assume
the Lease, the Bank or Subsequent Party elects to vacate the Leased Premises,
it shall provide Landlord ten (10) days written notice of its intention to do
so, addressed as provided in number 5 above. So long as the Bank or Subsequent
Party has not assumed the Lease, the Bank or Subsequent Party shall not be
liable for any obligations under the Lease arising after it vacates the Leased
Premises.
7. Except for the obligations to pay rent and other obligations
pursuant to the Lease Agreement from the date of its occupancy, the Bank or any
Subsequent Party does not assume, either by this Agreement or actual possession
of the Leased Premises, any past, present or future obligations of Tenant to
Landlord or any other person under the Lease or otherwise. Provided, that the
Bank or any Subsequent Party's occupancy of the Leased Premises shall be
subject to all of the terms and conditions of the Lease, including, without
limitation, use of the Leased Premises.
8. Landlord and Tenant agree that no amendment to the Lease shall be
valid without the written consent of the Bank, which shall not be unreasonably
withheld.
9. Landlord hereby consents to the foregoing Agreement subject to the
express conditions that (a) Tenant will remain liable for the payment of all
rent and other sums and the performance of all obligations as provided in the
Lease; (b) until the Bank or a Subsequent Party takes possession of the Leased
Premises, Landlord shall have no obligation to deliver any notices or perform
any other obligation provided for under the Lease to or for the Bank or a
Subsequent Party, and neither the Bank nor a Subsequent Party shall have any
right to enforce any of Tenant's rights against Landlord; and (c) this
Agreement does not waive any of the rights and remedies of Landlord under the
Lease.
10. Tenant hereby consents to this Agreement, agrees to be bound by
its terms and conditions to the extent that they are applicable to it and
agrees to indemnify and hold Landlord harmless in connection with the
Landlord's compliance with same.
11. This Agreement shall be binding on the successors and assigns of
the parties. This Agreement may be signed in counterparts, and a facsimile
transmission shall be binding in the same manner as an original.
3
IN WITNESS WHEREOF, this Agreement is signed on the dates set out by
the respective signature of the parties.
LANDLORD:
ELEVATION 8000+, a Colorado limited
liability company
Dated May 21, 1999 By /s/ J. Xxxxx Xxxxxxx
--------------------------------
Its Manager
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 21st day of
May, 1999, by ____________________________ the __________________________ of
Elevation 8000+, a Colorado limited liability company, on behalf of said
limited liability company.
-----------------------------------
Notary Public
[Signature page to Waiver of Interest, Assignment of Lease, and Agreement
Concerning Assumption of Lease between BNC National Bank of Minnesota, Concorde
Cripple Creek, Inc. and Elevation 8000+]
4
IN WITNESS WHEREOF, this Agreement is signed on the dates set out by
the respective signature of the parties.
BANK:
BNC NATIONAL BANK OF MINNESOTA
Dated May 21, 1999 By: /s/ Xxxxx X. Xxxx
------------------------------------
Its: Vice President
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 21st day of
May, 1999, by ____________________________ the __________________________ of
BNC National Bank of Minnesota, a national banking association, on behalf of
said national banking association.
-----------------------------------
Notary Public
[Signature page to Waiver of Interest, Assignment of Lease, and Agreement
Concerning Assumption of Lease between BNC National Bank of Minnesota, Concorde
Cripple Creek, Inc. and Elevation 8000+]
5
IN WITNESS WHEREOF, this Agreement is signed on the dates set out by
the respective signature of the parties.
TENANT:
CONCORDE CRIPPLE CREEK, INC.,
a Colorado corporation
Dated May 21, 1999 By /s/ Xxxxx X. Xxxx
-------------------------------------
Its President
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 21st day of
May, 1999, by ____________________________ the __________________________ of
Concorde Cripple Creek, Inc., a Colorado corporation, on behalf of said
corporation.
-----------------------------------
Notary Public
[Signature page to Waiver of Interest, Assignment of Lease, and Agreement
Concerning Assumption of Lease between BNC National Bank of Minnesota, Concorde
Cripple Creek, Inc. and Elevation 8000+]
