EXHIBIT 10.09
65 SLOT MACHINES - IGT
EQUIPMENT LEASE
This Lease, effective as of the date stated below, is between Exber, Inc., a
Nevada corporation, 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 sixty (60) months,
beginning on 09/15/03, and ending on 08/15/08. 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).
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 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:
(a) The nonpayment by Lessee for a period of five (5) days of any sum required
to be paid by Lessee;
(b) 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;
(c) 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;
(d) 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;
(e) 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
(f) 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:
(a) 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
(b) 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:
(a) Assign, transfer, or pledge this Lease, or any part of, or any interest
in the Property;
(b) Sublet or lend any part of the Property; or
(c) 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 4th day of September 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: VP Director of Operations
EXHIBIT A
Plaza Hotel and Casino
Listing of Fixed Assets Leased
For the Year of 2003
Lease Reference Invoice Description Invoice Discount Extension
Of Equipment Amt & Taxes
Lease #2003-5 90198506 1 IGT Slot 9,375.00 1,084.91 8,290.09
Machine
90197536 28 IGT Slot 270,480.00 31,300.96 239,179.04
Machines
90207284 36 IGT Slot 389,810.00 45,110.28 344,699.73
669,665.00 77,496.15 592,168.86
EXHIBIT B
EQUIPMENT LEASE
PAYMENT SCHEDULE
IGT 65 SLOT MACHINE LEASE
Pmt Date Loan Payment Accrued In Balance Chng Balance
05-Sep-03 592,168.85 (592,168.85) 592,168.85
1 15-Sep-03 12,231.03 1,460.14 10,770.89 581,397.96
2 15-Oct-03 12,231.03 4,360.48 7,870.55 573,527.41
3 15-Nov-03 12,231.03 4,301.46 7,929.57 565,597.84
4 15-Dec-03 12,231.03 4,241.98 7,989.05 557,608.79
5 15-Jan-04 12,231.03 4,182.07 8,048.96 549,559.83
6 15-Feb-04 12,231.03 4,121.70 8,109.33 541,450.50
7 15-Mar-04 12,231.03 4,060.88 8,170.15 533,280.35
8 15-Apr-04 12,231.03 3,999.60 8,231.43 525,048.92
9 15-May-04 12,231.03 3,937.87 8,293.16 516,755.76
10 15-Jun-04 12,231.03 3,875.67 8,355.36 508,400.40
11 15-Jul-04 12,231.03 3,813.00 8,418.03 499,982.37
12 15-Aug-04 12,231.03 3,749.87 8,481.16 491,501.21
13 15-Sep-04 12,231.03 3,686.26 8,544.77 482,956.44
14 15-Oct-04 12,231.03 3,622.17 8,608.86 474,347.58
15 15-Nov-04 12,231.03 3,557.61 8,673.42 465,674.16
16 15-Dec-04 12,231.03 3,492.56 8,738.47 456,935.69
17 15-Jan-05 12,231.03 3,427.02 8,804.01 448,131.68
18 15-Feb-05 12,231.03 3,360.99 8,870.04 439,261.64
19 15-Mar-05 12,231.03 3,294.46 8,936.57 430,325.07
20 15-Apr-05 12,231.03 3,227.44 9,003.59 421,321.48
21 15-May-05 12,231.03 3,159.91 9,071.12 412,250.36
22 15-Jun-05 12,231.03 3,091.88 9,139.15 403,111.21
23 15-Jul-05 12,231.03 3,023.33 9,207.70 393,903.51
24 15-Aug-05 12,231.03 2,954.28 9,276.75 384,626.76
25 15-Sep-05 12,231.03 2,884.70 9,346.33 375,280.43
26 15-Oct-05 12,231.03 2,814.60 9,416.43 365,864.00
27 15-Nov-05 12,231.03 2,743.98 9,487.05 356,376.95
28 15-Dec-05 12,231.03 2,672.83 9,558.20 346,818.75
29 15-Jan-06 12,231.03 2,601.14 9,629.89 337,188.86
30 15-Feb-06 12,231.03 2,528.92 9,702.11 327,486.75
31 15-Mar-06 12,231.03 2,456.15 9,774.88 317,711.87
32 15-Apr-06 12,231.03 2,382.84 9,848.19 307,863.68
33 15-May-06 12,231.03 2,308.98 9,922.05 297,941.63
34 15-Jun-06 12,231.03 2,234.56 9,996.47 287,945.16
35 15-Jul-06 12,231.03 2,159.59 10,071.44 277,873.72
36 15-Aug-06 12,231.03 2,084.05 10,146.98 267,726.74
37 15-Sep-06 12,231.03 2,007.95 10,223.08 257,503.66
38 15-Oct-06 12,231.03 1,931.28 10,299.75 247,203.91
39 15-Nov-06 12,231.03 1,854.03 10,377.00 236,826.91
40 15-Dec-06 12,231.03 1,776.20 10,454.83 226,372.08
41 15-Jan-07 12,231.03 1,697.79 10,533.24 215,838.84
42 15-Feb-07 12,231.03 1,618.79 10,612.24 205,226.60
43 15-Mar-07 12,231.03 1,539.20 10,691.83 194,534.77
44 15-Apr-07 12,231.03 1,459.01 10,772.02 183,762.75
45 15-May-07 12,231.03 1,378.22 10,852.81 172,909.94
46 15-Jun-07 12,231.03 1,296.82 10,934.21 161,975.73
47 15-Jul-07 12,231.03 1,214.82 11,016.21 150,959.52
48 15-Aug-07 12,231.03 1,132.20 11,098.83 139,860.69
49 15-Sep-07 12,231.03 1,048.96 11,182.07 128,678.62
50 15-Oct-07 12,231.03 965.09 11,265.94 117,412.68
51 15-Nov-07 12,231.03 880.60 11,350.43 106,062.25
52 15-Dec-07 12,231.03 795.47 11,435.56 94,626.69
53 15-Jan-08 12,231.03 709.70 11,521.33 83,105.36
54 15-Feb-08 12,231.03 623.29 11,607.74 71,497.62
55 15-Mar-08 12,231.03 536.23 11,694.80 59,802.82
56 15-Apr-08 12,231.03 448.52 11,782.51 48,020.31
57 15-May-08 12,231.03 360.15 11,870.88 36,149.43
58 15-Jun-08 12,231.03 271.12 11,959.91 24,189.52
59 15-Jul-08 12,231.03 181.42 12,049.61 12,139.91
60 15-Aug-08 12,231.03 91.12 12,139.91 0.00
